U.S. v. Chavez, s. 78-1128
| Decision Date | 02 August 1979 |
| Docket Number | 78-1129,Nos. 78-1128,s. 78-1128 |
| Citation | 603 F.2d 143 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Pansy Stone CHAVEZ and Thomas Tilford Stone, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Tenth Circuit |
David N. Williams, Asst. U. S. Atty., Albuquerque, N.M. (Victor R. Ortega, U. S. Atty., Albuquerque, N.M., on the brief), for plaintiff-appellee.
Clarence D. Moyers, El Paso, Tex. (Gerald M. Birnberg, Houston, Tex., on the brief), for defendants-appellants.
Before McWILLIAMS, BREITENSTEIN and McKAY, Circuit Judges.
Thomas Tilford Stone and his sister, Pansy Stone Chavez, along with two others, were charged with a number of violations of the Federal Controlled Substances Act. In a trial to the court Stone was convicted of conspiring to import marijuana, importing marijuana and possession of marijuana with an intent to distribute. 21 U.S.C. §§ 841(a)(1); 952(a); 960(a)(1); 963. His sister, Pansy Stone Chavez, in the same trial was convicted of conspiring to import marijuana and possessing marijuana with an intent to distribute. 21 U.S.C. §§ 841(a)(1); 963. The charges against the remaining two defendants were disposed of without trial. Stone and his sister appeal their respective convictions.
The main issue on appeal concerns the use of an electronic tracking device, sometimes referred to as a transmitter or a transponder, and more popularly referred to as a "beeper." A beeper had been attached to three small aircraft which were used by the defendants to transport marijuana from Mexico into the State of New Mexico. Prior to trial the defendants filed a motion to suppress on the ground that the installation and use of the beeper violated Fourth Amendment rights. After an evidentiary hearing, the trial court denied the motion to suppress. This ruling is the only matter urged by Stone on appeal as ground for reversal. The only ground for reversal urged by Stone's sister, Ms. Chavez, is the alleged insufficiency of the evidence tying her in with the crimes charged in the indictment.
This particular investigation was initiated by one Mike Dwyer, detective in the Albuquerque Police Department. Dwyer was suspicious that certain small aircraft, which were either owned by Stone or made available to him, were being used to transport marijuana from Mexico into New Mexico. The planes were tied down on runway aprons at the Albuquerque airport. During the course of his investigation Dwyer conferred with one Harold Briscoe, a United States Customs Air Officer.
Based on the results of his continuing investigation, Dwyer made application to a New Mexico State District Judge for an order authorizing the installation of a tracking device on or in the three aircraft. Dwyer and a fellow detective on the Albuquerque police force submitted a lengthy affidavit to the state judge in support of their request for an authorization order. This affidavit was also signed by Agent Briscoe. An order issued authorizing the installation and monitoring of a tracking device in the three aircraft for a sixty-day period. Shortly prior to the expiration of the sixty-day period, Dwyer by written application, requested a sixty-day extension of the authorization order. This request for an extension was supported by Dwyer's lengthy affidavit, which, Inter alia, incorporated by reference the recitals in the first affidavit and also recounted events which had transpired within the intervening sixty days. Based on these representations, the state judge extended the authorization order for an additional sixty days.
Shortly after the extension order, on July 10, 1977, Dwyer's investigative efforts bore fruit. On that date Stone and another person took off in two of the small aircraft from the Albuquerque airport, with a beeper attached to each craft. These two planes flew into Mexico, landed and picked up a load of some 1,400 pounds of marijuana and then flew back to New Mexico. Law enforcement authorities followed the two aircraft and were materially aided in their pursuit by monitoring the beeper signals.
En route back, Stone became suspicious that he and his associate were being followed. Accordingly, Stone split off and made an emergency landing some miles away from the makeshift airstrip where he had intended to touch down. Stone's associate, however, proceeded on course and landed at the clandestine landing field located on Stone's property near McIntosh, New Mexico. The authorities followed, again aided by use of the beeper, and their plane flew over the area where the other plane had just landed. Apparently believing that the second plane was the one piloted by Stone, someone on the ground turned on a string of lights which were intended to aid in night landing. In the meantime the pursuing enforcement officials had radioed their location to others, and as a result, police using helicopters closed in on the landed aircraft. As they descended, the officers, by use of search lights, observed persons unloading marijuana from the plane into a truck. Several persons fled, but Pansy Stone Chavez and the pilot of the plane were arrested at the scene, and approximately 800 pounds of marijuana were seized. *
On appeal Stone contends that the installation of the beeper and the surveillance of his plane through use of the beeper for a period of approximately 70 days after the original authorization order was improper on three grounds: (1) the affidavit in support of the extension order was insufficient; (2) the extension order was issued for an unspecified length of time and was therefore unreasonable; and (3) neither the application for authorization to install the beeper, nor the application to extend the time that the beeper could be used, complied with Fed.R.Crim.P. 41(b).
Although we propose to dispose of this appeal on the basis that it has been presented to us, we recognize the more basic underlying question of whether the installation of a beeper on an airplane, or an automobile, and use...
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U.S. v. Michael
...either because judicial authorization for the installation had first been secured before placement of the beeper, United States v. Chavez, 603 F.2d 143 (10th Cir. 1979), United States v. Pretzinger, 542 F.2d 517 (9th Cir. 1976); or else because either both probable cause and exigent circums......
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U.S. v. Michael
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