U.S. v. Little

• Citation: 735 F.2d 1049
• Decision Date: 27 September 1984
• Docket Number: Nos. 82-1591,82-1592,82-1593,s. 82-1591
• Parties: UNITED STATES of America, Appellee, v. Billy Gene LITTLE, Appellant. UNITED STATES of America, Appellee, v. John Roger SAGER, Appellant. UNITED STATES of America, Appellee, v. Jay Houston HARMON, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 1049

735 F.2d 1049

UNITED STATES of America, Appellee, v. Billy Gene LITTLE, Appellant.

UNITED STATES of America, Appellee, v. John Roger SAGER, Appellant.

UNITED STATES of America, Appellee, v. Jay Houston HARMON, Appellant.

Nos. 82-1591, 82-1592, 82-1593.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 12, 1984.

Decided May 22, 1984.

Rehearing Granted Sept. 27, 1984.

Daniel R. Carter, Atty. at Law, Little Rock, Ark., for appellant, Billy Gene Little.

George W. Proctor, U.S. Atty., Eastern Dist. of Ark. by Don N. Curdie, Asst. U.S. Atty., Little Rock, Ark., for appellee.

Before BRIGHT, McMILLIAN, and ARNOLD, Circuit Judges.

ARNOLD, Circuit Judge.

Defendants Billy Gene Little, John Roger Sager, and Jay Houston Harmon all appeal their convictions of conspiracy and drug charges. The pivotal questions are: (1) whether these defendants had a legitimate expectation of privacy in a Piper Navajo plane, enabling them to object to a court order authorizing the government to install a transponder on the plane, and, if so, (2) whether the affidavit on which the order was based was valid. We hold that John Sager and Jay Harmon had a legitimate expectation of privacy in the plane, and that Billy Little did not. In addition, we hold that the affidavit was invalid. The conviction of Little will be affirmed, but those of Sager and Harmon must be reversed.

I.

In December 1980, Roy Fulbright and Frank Livesay wanted to buy a plane to transport drugs. Wayne Huntsman purchased a Piper Navajo plane, No. N6782-L, for Fulbright's and Livesay's use. Fulbright and Livesay agreed to lease the plane from Huntsman for an amount sufficient to cover Huntsman's monthly payments. Huntsman bought the plane from K.G. Coker of Coker Aircraft Sales. Huntsman told Coker that he was renting the plane out for $30,000, but no rental time period was stated.

From December 1980 to April 1981 Fulbright and Livesay used the plane to haul drugs. In late April or early May, Harmon, acting on behalf of Sager, contacted Fulbright, and negotiations began for a Jamaica trip to pick up 1500 pounds of marijuana. In early May, Fulbright agreed to go in late May to Jamaica to pick up the marijuana and return to the United States. Shortly after the agreement, Fulbright discussed using the plane in the interim to pick up drugs somewhere else. Sager made it clear that Fulbright had to commit to him. The agreement was for exclusive use of the plane, beginning in early May and lasting until the plane returned to Arkansas from Jamaica. Sager in effect vetoed the trip, and Fulbright abandoned the idea.

For most of May, the plane was at Memphis Aero International Aircraft Sales for repairs. Memphis Aero is privately owned, surrounded by a fence, and closed to the public. While the plane was in the repair shop, about four weeks before the trip to Jamaica, Fulbright and Harmon checked the plane for eavesdropping devices and monitoring equipment. This was done at Sager's direction; part of the deal was for Fulbright to provide security for the plane. Fulbright also, at Sager's direction, made test flights with soybeans aboard to ensure that the plane could make it off the runway in Jamaica with the marijuana. Fulbright and Livesay agreed that Little, one of Livesay's employees, would sleep on the plane to keep out intruders (like government agents). Little would be paid $1,000 and 100 pounds of marijuana.

On May 27, 1981, Thomas L. McConnell, a Customs Agent, obtained from a United States Magistrate in Memphis, Tennessee, an order allowing him to install a transponder on the plane. A transponder is a tracking device, also called a beeper. Before the beeper was installed, a government agent approached Scott Whitney, a service administrator of Memphis Aero, and told him that he had a warrant to enter the plane. Whitney consented to their going into the hangar. Later that day, the transponder was installed on the plane. The operation involved detaching a panel inside the airplane, secreting the beeper behind it, and then replacing the panel.

On June 8, 1981, Harmon, Sager, and Fulbright left for Jamaica. They picked up 1100 pounds of marijuana; Fulbright and Harmon returned to the United States, and Sager stayed in Jamaica. That night, a meeting was held including Arkansas State Police, DEA agents, and customs agents. Because of the transponder, customs agents knew the plane had left the country. Fred Clark, an Arkansas State Trooper, told the others at the meeting that an informant had told him that whenever the trip took place, the plane would land at the airport in either Augusta or Newport. DEA Agent Buster Griggs, Customs Agent John Schulte, and several Arkansas State Troopers went to the airport in Augusta, and Clark, his sergeant, and another investigator went to Newport.

Fulbright and Harmon originally planned to land at Harmon's airstrip in Lake City, but they had trouble finding it. They contacted Livesay and Little and told them that they would be landing at Augusta. Little drove to Augusta to meet them. The plane landed. Customs officers and DEA agents approached the plane and placed Fulbright, Harmon, and Little under arrest. Griggs saw bales wrapped in opaque plastic and smelled marijuana. After determining that the men had not cleared customs, Schulte told them that he was searching the plane under his authority as a customs officer. DEA Agent Robert Morris cut one of the bags and took some of the marijuana for a field test.

Fulbright was given immunity in exchange for his testimony. Livesay also cooperated with the government, and in return was charged with only a misdemeanor. Little, Sager, and Harmon appeal their convictions, contesting the issuance of the order permitting installation of the transponder, on the ground that the affidavit does not meet constitutional requirements. The government contends that no defendant has standing to challenge the installation of the transponder. The District Court agreed, stating that defendants lack standing because they had no expectation of personal privacy in the aircraft.

II.

A.

Little argues that he had an expectation of privacy in the plane because he spent three or four nights on it, and his duty was to exclude others. He argues that his right to exclude, plus his interest in the cargo, his presence in the conspiracy by mid-May, the nature of the crime of conspiracy, and the security precautions he and his co-conspirators took show that he has standing to contest the validity of the search. He cites Rakas v. Illinois, 439 U.S. 128, 143-44 n. 12, 99 S.Ct. 421, 430-31 n. 12, 58 L.Ed.2d 387 (1978):

Legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society. One of the main rights attaching to property is the right to exclude others ... and one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of this right to exclude.

(Citation omitted.)

Obviously the word "legitimate" in the phrase "legitimate expectation of privacy" is being used in a special sense. An greement to use an airplane to transport illegal drugs, and an undertaking to guard the plane to prevent detection, are by no means legitimate. The cases must be analyzed on the hypothesis that no illegal activity is occurring or contemplated. The illegality comes to light only through execution of the warrant or court order whose validity is the very point at issue. Otherwise Fourth Amendment analysis would be pointless, because motions to suppress are never made in the first place unless evidence of criminality has been seized. So the "expectation" that must be taken as a predicate for analysis in this case is the expectation of any innocent person who has arranged with an owner or lessee to use an airplane.

The difficulty is that Little's right to exclude started only when he began spending nights on the plane. By then the beeper was already securely in place. He points out that the agreement for him to spend some nights on the plane was made before the transponder was installed. That agreement did not give any present rights in the plane to Little. He did not participate in the early negotiations for use of the plane. He cannot claim to have owned, possessed, or controlled the plane at the time the transponder was installed. Cf. United States v. Torres, 720 F.2d 1506 (11th Cir.1983) (per curiam) (defendant Gomez hired to watch marijuana in the back of a truck, arrested while guarding the marijuana; held, he had no standing to contest the search of the back of the truck.)

The other factors on which Little relies do not give him standing. Neither his mere presence in the conspiracy nor the acts of his co-conspirators can give him a legitimate expectation in the plane where none exists otherwise. "Coconspirators ... have been accorded no special standing." Alderman v. United States, 394 U.S. 165, 172, 89 S.Ct. 961, 965, 22 L.Ed.2d 176 (1969). Billy Little cannot challenge the affidavit that was the basis of the court order allowing installation of the transponder. His motion to suppress was correctly denied.

B.

Harmon and Sager base their claims to standing primarily on their agreement for exclusive control of the plane starting in late April or early May. Another factor evincing Sager's control is his instruction to Fulbright, which was honored, to make test flights to ensure that the plane could lift off from the runway in Jamaica. In addition, they directed Fulbright to take security measures to ensure privacy in the plane. Harmon even provided a field-strength meter, a device used to test for eavesdropping equipment.

The government argues that the airplane was at Memphis Aero for repairs during this period. It was not in condition to be flown or used by anyone. Memphis...