U.S. v. Miroyan
| Citation | 577 F.2d 489 |
| Decision Date | 01 May 1978 |
| Docket Number | Nos. 77-1125 and 77-1367,s. 77-1125 and 77-1367 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Michael H. MIROYAN et al., Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Eugene Logan McGINNIS, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Thomas H. Steele (argued), Paul A. Sullivan (argued), San Francisco, Cal., for defendants-appellants.
Mark O. Heaney, Asst. U. S. Atty. (argued), Los Angeles, Cal., for plaintiff-appellee.
Appeal from the United States District Court for the Central District of California.
Before CHAMBERS and WALLACE, Circuit Judges, and WOLLENBERG, * District Judge.
Miroyan and McGinnis appeal from their convictions for several drug-related offenses. They raise several contentions, including a serious issue regarding the sensitive balance between the official use of sophisticated electronic surveillance devices and fourth amendment rights. Their fourth amendment contention is foreclosed, however, by recent decisions of this court and, since the remaining assertions are unpersuasive, we affirm.
In early May 1976, Miroyan made arrangements with Aero Trends, Inc. in San Jose, California, to rent a Cessna aircraft from 2:00 p. m. on May 8, 1976 through May 14, 1976. On May 7, a Drug Enforcement Administration agent obtained a United States Magistrate's order authorizing the installation of an electronic tracking device on the Cessna airplane. Pursuant to this order, a transponder 1 was installed in the aircraft. Significantly, the transponder was installed with the express permission of the aircraft's owner and was installed prior to the commencement of the rental period.
On May 8, Miroyan and McGinnis departed in the rented airplane. Federal agents pursued the Cessna in a United States Customs aircraft and monitored the Cessna's journey by means of both the transponder's signals and visual sightings. The officers tracked the Cessna to Palm Springs, California where it landed and remained the night.
On May 9, Miroyan and McGinnis departed Palm Springs in the Cessna and were again followed by federal officers in the Customs airplane. The officers maintained visual surveillance for approximately four hours and observed the Cessna enter the Republic of Mexico and proceed to Cuidad Obregon where it landed. Thereafter, the officers discontinued surveillance and returned to the United States.
On May 11, two days after surveillance had been suspended, the officers were notified by Customs personnel in Phoenix that they had picked up a transponder's signal which indicated that the aircraft to which it was attached was approximately eighty miles south of the Mexican border and heading north. The Customs agents again took to the air and established visual contact with the Cessna about twenty miles south of the border. The agents followed the Cessna north and observed it make a series of evasive-like maneuvers. About 3:30 p. m. the Cessna landed at the Lompoc, California airport. McGinnis disembarked and proceeded to a Lompoc motel. After leaving McGinnis in Lompoc, Miroyan flew the Cessna to the nearby Santa Ynez airport. Shortly after his arrival, Miroyan and another individual were arrested while in the process of transferring several hundred pounds of marijuana from the Cessna to a pickup truck. McGinnis was thereafter arrested at his motel in Lompoc.
Miroyan and McGinnis were separately tried and convicted of conspiracy to possess a controlled substance with intent to distribute, importation of a controlled substance, and possession of a controlled substance with intent to distribute. Additionally, Miroyan was convicted of a firearms violation.
The primary argument asserted on appeal is that the district judge improperly refused to suppress the marijuana and other evidence obtained as a result of the use of the transponder. The heart of their argument is that the installation of the transponder and the monitoring of its signals constituted a search or searches within the meaning of the Fourth Amendment. Therefore, it is argued, the resulting evidence is inadmissible unless the use of the transponder was authorized by a valid search warrant. Miroyan and McGinnis then make a detailed attack on the affidavit upon which the magistrate's order was founded, arguing that it does not satisfy the rules announced in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).
A review of our relevant decisions leads us to conclude that under the particular facts of this case, a search warrant was not required and, therefore, we need not determine the validity of the magistrate's order.
In our prior decisions dealing with the use of electronic tracking devices we have established a bifurcated analytical framework which examines the fourth amendment implications of both the installation or attachment of the device and the monitoring of the device's signals. See United States v. Pretzinger, 542 F.2d 517, 520 (9th Cir. 1976); United States v. Hufford, 539 F.2d 32, 34 (9th Cir.), cert. denied, 429 U.S. 1002, 97 S.Ct. 533, 50 L.Ed.2d 614 (1976); see generally Note, Tracking Katz: Beepers, Privacy, and the Fourth Amendment, 86 Yale L.J. 1461, 1465 (1977).
Applying initially the second branch of this analysis, we have previously held that
(u)nder the law of this circuit, . . . attachment of an electronic location device to a vehicle moving about on public thoroughfares (or through the public airspace) does not infringe upon any reasonable expectation of privacy and therefore does not constitute a search. . . . Consequently, no warrant is needed . . . unless fourth amendment rights necessarily would have to be violated in order to initially install the device.
United States v. Pretzinger, supra, 542 F.2d at 520. See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). To a great degree, our holding in Pretzinger was premised on our prior decision in United States v. Hufford, supra, 539 F.2d 32. In Hufford we considered the fourth amendment problems associated with the use of a beeper to track an automobile. Concluding that we could "see no distinction between visual surveillance and the use of an electronic beeper to aid the agents in following the movements of an automobile along public roads," id. at 34, we held that the mere use of the beeper for this purpose did not violate a reasonable expectation of privacy and therefore was not a search for fourth amendment purposes. Id. at 33-34.
On the basis of these cases, we are compelled to hold that the use of the transponder merely to monitor the location of the aircraft as it passed through public airspace was not a search subject to fourth amendment strictures. See United States v. Curtis, 562 F.2d 1153 (9th Cir. 1977). In both Pretzinger and Hufford, however, we stated that even though the monitorial use of the device cannot constitute a search, the installation or attachment could violate fourth amendment precepts. Accordingly, we return to the first branch of the analysis to determine if, under the specific facts of this case, the installation of the transponder violated fourth amendment rights. We hold that it did not.
The record clearly establishes that the transponder was installed with the express consent of the aircraft's owner while the plane was within his complete dominion. Miroyan argues, however, that because he had contracted to rent a specifically designated aircraft, he could reasonably expect the plane to "be free of a 'probing, exploratory quest for evidence' between the time of his rental and actual departure in the craft." We have already considered this precise argument:
The appellants have argued that (the aircraft's owner) had no authority to grant to the officers permission to install the transponder. They base this argument upon the fact that the agreement for the rental of the plane had been made prior to the transponder's installation. We reject the argument. The installation occurred before the time for the commencement of the rental period. The owner of the plane had full control and dominion over it at the time, and it seems logical to us that the owner, through its agent, had the right at that time to install within its airplane any instrument that would not be physically dangerous to occupants of the plane.
United States v. Curtis, supra, 562 F.2d at 1156 n.1. Accord, United States v. Abel, 548 F.2d 591, 592 (5th Cir.), cert. denied, 431 U.S. 956, 97 S.Ct. 2678, 53 L.Ed.2d 273 (1977); cf. United States v. Hufford, supra, 539 F.2d at 34.
We therefore hold that the installation of the transponder, performed with the consent of the aircraft's owner and while the plane was within his dominion, did not violate the fourth amendment rights of Miroyan or McGinnis.
McGinnis alone raises several additional contentions, none of which requires extended discussion. First, he argues that the officer who actually effected his arrest at the motel in Lompoc did not have probable cause to do so. We disagree. At the time of the arrest, the investigating officers knew that McGinnis had accompanied Miroyan on the flight into Mexico and that he had disembarked and left Miroyan only minutes before Miroyan was found unloading approximately 580 pounds of marijuana from the plane. On these facts, the officers clearly had probable cause to believe that McGinnis was a participant in the smuggling venture.
McGinnis argues, however, that at the instant of his capture, the arresting officers did not have sufficient data with which to identify him as the individual who had made the Mexican excursion and exited the plane at the Lompoc airport. We again disagree. The arresting officers were told that McGinnis was in his twenties, had brown hair, was wearing levis and was carrying a gray knapsack. Additionally,...
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