U.S. v. Cassity, s. 85-1408

• Decision Date: 17 December 1986
• Docket Number: Nos. 85-1408,85-1409,s. 85-1408
• Citation: 807 F.2d 509
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Larry Wayne CASSITY, (85-1408), Stephen Gordon Lenk, (85-1409), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 509

807 F.2d 509

UNITED STATES of America, Plaintiff-Appellee, v. Larry Wayne CASSITY, (85-1408), Stephen Gordon Lenk (85-1409), Defendants-Appellants.

Nos. 85-1408, 85-1409.

United States Court of Appeals Sixth Circuit.

Argued Nov. 4, 1986.

Decided Dec. 17, 1986.

Edward Wishnow, argued, Bornstein, Wishnow, Shaye & Schneiderman, Southfield, Mich., for defendants-appellants.

Ross Parker, Asst. U.S. Atty., argued, U.S. Attys. Office, Detroit, Mich., for plaintiff-appellee.

Before LIVELY, Chief Judge, and MARTIN and BOGGS, Circuit Judges.

PER CURIAM.

This case is before us for the third time. See United States v. Cassity, 631 F.2d 461 (6th Cir.1980); United States v. Cassity, 720 F.2d 451 (6th Cir.1983), vacated and remanded, 468 U.S. 1212, 104 S.Ct. 3581, 82 L.Ed.2d 879 (1984). Upon receiving the remand from the Supreme Court, this court further remanded the case to the district court and the district court then entered the judgment from which the present appeal is taken. The district court accompanied its judgment with a memorandum opinion reported at 604 F.Supp. 1566 (E.D.Mich.1985).

Cassity and Lenk were convicted of conspiring to manufacture and of manufacturing amphetamines in violation of 21 U.S.C. Secs. 846 and 841(a)(1) (1982). Prior to trial, Cassity had moved to suppress evidence seized pursuant to a search warrant based in part on the results of monitoring three electronic homing transmitters (beepers) that had been installed pursuant to earlier warrants. The defendants did not contend that the final search warrant that led to seizure of the property was itself invalid, but argued that the warrants for installation of the beepers were invalid and thus the seizures were "fruits of a poisonous tree." On the first two appeals, this court applied the developing law of the circuit with respect to the requirements of warrants for the installation of beepers. In the first appeal this court vacated the convictions in light of an intervening decision and remanded for a hearing to determine whether the use of the beepers violated the defendants' legitimate expectations of privacy. On remand the district court held that it had properly denied the motions to suppress and it reinstated the convictions. On the second appeal the judgment of the district court was vacated, the evidence ordered suppressed and the matter remanded to the district court for a new trial in the event the government chose to bring Cassity and Lenk to trial again without the suppressed evidence. The Supreme Court then granted certiorari, vacated the judgment of this court and remanded the case "for further consideration in light of United States v. Leon [468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) ]." In Leon the Supreme Court held that the exclusionary rule should not be applied to suppress evidence obtained by officers reasonably relying on a search warrant which was issued by a detached and neutral magistrate and ultimately found to be invalid.

Cassity and Lenk make several arguments on appeal. First, they argue that "the law of the case" precludes the application of United States v. Leon to this case. The law of the case is not a rigid doctrine, but is one applied by the courts to limit relitigation of issues previously decided. It would be inappropriate to apply the doctrine in the present case where the issue of good faith reliance on a search warrant was not raised at any earlier stage of the litigation and where the Supreme Court of the United States has specifically directed this court to reconsider our prior decision in light of its decision in Leon dealing with good faith reliance on a warrant.

In their second argument the appellants contend that United States v. Leon should not be applied retroactively to the searches in this case. They assert that Leon represented such a clear break with past precedent that it should not be given retroactive application. This issue is settled contrary to the appellants' position insofar as this court is concerned. In United States v. Savoca, 761 F.2d 292 (6th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 153, 88 L.Ed.2d 126 (1985), we applied Leon retroactively, as have other courts of appeals. E.g., United States v. Henderson, 746 F.2d 619 (9th Cir.1984), aff'd, --- U.S. ----, 106 S.Ct. 1871, 90 L.Ed.2d 299 (1986); United States v. Sager, 743 F.2d 1261 (8th Cir.1984), cert. denied, 469 U.S. 1217, 105 S.Ct. 1196, 84 L.Ed.2d 341 (1985). In addition, since the Supreme Court vacated this court's decision and remanded for consideration in light of Leon with full knowledge of the fact that the searches in the present case took place years before Leon was decided, it cannot be argued that Leon should not be applied retroactively to these searches.

The third and final argument of the...