U.S. v. Moore

• Decision Date: 09 September 1977
• Docket Number: No. 76-1355,76-1355
• Parties: UNITED STATES of America, Appellant, v. Frederick H. MOORE et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 106

562 F.2d 106

UNITED STATES of America, Appellant, v. Frederick H. MOORE et al., Defendants, Appellees.

No. 76-1355.

United States Court of Appeals, First Circuit.

Sept. 9, 1977.

As Amended On Denial of Rehearing Oct. 25, 1977.

James E. O'Neil, Asst. U. S. Atty., Boston, Mass., with whom James N. Gabriel, U. S. Atty., Boston, Mass., was on brief, for appellant.

Evan T. Lawson, Boston, Mass., with whom Lawson & Wayne, Boston, Mass., was on brief, for defendants, appellees.

Before COFFIN, Chief Judge, ALDRICH and CAMPBELL, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

Appellees Frederick H. Moore and Brock P. Bobisink, and another, were charged with conspiracy to manufacture and distribute and with manufacturing and distributing phencyclidine, a Schedule III controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Prior to trial, they moved to suppress evidence seized by government agents after an investigation during which electronic beepers were used both to help monitor appellees' movements and to keep track of the whereabouts of certain chemicals in their possession. Holding that the use of the beepers violated the fourth amendment, the district court allowed the suppression motion. United States v. Bobisink, 415 F.Supp. 1334 (D.Mass.1976). From that order, the Government appeals. See 18 U.S.C. § 3731.

The facts were before the district court in the form of two affidavits of DEA agents submitted with the applications for search warrants, and the testimony at the suppression hearing of Special Agent Francis J. Elliott. Agent Elliott had received a call from the manager of the Doe & Ingalls Chemical Company of Medford, Massachusetts, informing him that Moore, purportedly representing a company called Plastico at 26 Allston Street, Allston, Massachusetts, had placed an order for a substantial quantity of chemicals and had picked up the chemicals for $776.36 in cash. While picking up the first batch of chemicals, Moore had placed another larger order for mostly different chemicals. (The names and amounts of all the chemicals were obtained by Agent Elliott and later listed in his affidavit; in the affidavit the agent stated that he was "familiar with the basic processes involved in the production of Schedule III controlled substances.") ¹ Upon investigation, Agent Elliott found that 26 Allston Street, Allston, Massachusetts, was an apartment house. On April 11, 1975, with the permission of Doe & Ingalls, DEA Agent Witt placed a self-powered electronic signalling device (a "beeper") within one of the cardboard boxes containing the chemicals which Moore had ordered on March 26. On April 14, Moore and Bobisink came to Doe & Ingalls to pick up the chemicals. Driving a U-Haul van, they parked in the lot of a nearby shopping center and went inside. The chemicals ordered on March 26 were available, with the exception of peperidine. While the two were inside, Agent Elliott placed a second beeper on the left rear undercarriage of the van. Moore and Bobisink got in the van with the chemicals and went on their way. Elliott and another DEA agent followed, alternately relying on visual surveillance and on the two beepers. The beepers were broadcasting at different frequencies, and the agents could receive only one signal at a time. At a point when the van was travelling on Route 6 on Cape Code, the agents lost visual contact and could not receive a signal from either beeper. But observing the van on Route 124 crossing over Route 6, the agents quickly exited themselves, proceeded down Route 124 approximately one mile, and saw the van parked in front of a house in Brewster, Massachusetts. Agent Elliott testified that the agents relied on the beepers 50% of the time while following defendants. From April 14 to April 29, the agents maintained sporadic surveillance of the Brewster home. Until the battery became worn, they used the beeper in the box of chemicals to determine that the box was still in the residence. On April 23, Elliott searched the records of the DEA computer bank of registrants and determined that neither Moore nor Plastico was licensed to manufacture controlled substances.

On April 29, Moore and Bobisink returned to Doe & Ingalls to pick up the one chemical, peperidine, that had not been available on April 14. While Moore and Bobisink were inside, Agent Elliott attached a beeper to the gasoline tank of Moore's 1966 Mustang. Elliott testified that he did not follow the Mustang, but instead the vehicle was trailed by another agent, who he assumed used the beeper to maintain surveillance. The vehicle was driven to the Brewster residence, where defendants were observed carrying the package of peperidine inside. Beginning on April 29, a 24-hour surveillance was maintained on the Brewster residence. That evening, according to Elliott's affidavit, he "detected a strong odor of ether emanating from the house and also observed the house being cross-ventilated by the opening of doors." The affidavit avers further that at that time "(t)he electronic surveillance signal placed in the chemicals . . . indicated the chemicals acquired on the 14th of April and observed and deposited at that house on the 14th of April remained in that house." On May 2, DEA agents made application for a search warrant for the Brewster property. The warrant was executed on May 7, and a number of chemicals and apparatus was seized. The following day a search warrant issued for the Allston apartment; its execution resulted in seizure of small amounts of chemicals and apparatus.

At the suppression hearing, appellees' primary argument went to the alleged illegality of the beepers, but they also argued, as they do on appeal, that no search warrants should have issued since the affidavits did not establish that the chemicals purchased and appellees' activities were directed towards manufacturing the controlled substance, phencyclidine. The district court, dealing only with the beeper issue, suppressed the evidence obtained from the searches because it held that "placement of the beepers under the circumstances of this case was a search and seizure under the Fourth Amendment requiring issuance of a search warrant." The Government asserts that was error. It urges us to sanction use of the beeper as a new and useful surveillance device.

Before turning to the question of the beepers, we consider the sufficiency of the affidavits underlying the warrants to search the Brewster house and the Allston apartment. Affidavits are most often criticized as being too conclusory, i. e. lacking in sufficient underlying facts and circumstances. See, e. g., Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). The opposite difficulty is present here: while in his affidavit for the Brewster property Agent Elliott carefully itemized by name and quantity the chemicals that were sold to appellees, he never actually stated, on the basis of his asserted familiarity with the processes in the production of Schedule III controlled substances, that these chemicals in these amounts were predictable precursors of phencyclidine. However, the affidavit strongly implies that he held such an opinion. It declares that the affiant has reason to believe that "controlled substances, including, but not limited to, Phencyclidine, substances, salts and isomers of the same and immediate precursors of the same . . . and manufacturing apparatus and items for the manufacture of controlled substances . . ." are being stored on the premises. In support of this, the affiant recounts how the manager of Doe & Ingalls initiated contact with DEA agents, advising of the purchase of certain named chemicals in the designated amounts, and details the other events leading up to the detection of a strong ether odor from the Brewster house. Emphasizing that the chemicals remained in the house, he concludes that he "therefore" had probable cause to search and seize "controlled substances, precursors, manufacturing apparatus and material for manufacturing controlled substances". Peperidine, one of the chemicals, was described as "a necessary chemical for creating Phencyclidine".

A commonsense reading of the affidavit indicates that Agent Elliott, being familiar with the basic processes of manufacturing controlled substances, had determined from the nature and quantity of the purchased chemicals, and from associated facts such as that Moore was operating out of a residence and the defendants' later conduct, that an illegal substance was being manufactured. While he did not state that chemicals of this type and amount comprise the formula for phencyclidine, or enough of it to show that phencyclidine was a probable end-product, that conclusion seems implicit. In United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965), the Court pointed out that affidavits "are normally drafted by nonlawyers in the midst and haste of a criminal investigation." Courts should not invalidate a warrant by interpreting the affidavit "in a hypertechnical, rather than a commonsense manner." Id. at 109, 85 S.Ct. at 746. A magistrate's determination of probable cause is entitled to great deference. Jones v. United States, 362 U.S. 257, 270-271, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), cited with approval in Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). While the Government's failure better to explain its conclusions reflects adversely on whoever drafted the affidavit, we believe the magistrate was given adequate cause to determine that the proposed search was likely to uncover evidence of crime, and the same is true with respect to the second affidavit and warrant.

We come next to use of the beepers, a question that, in the broad sense, is unlikely to be settled finally in this court. Beepers, which do not relay oral communications, are not within the definition of wiretapping devices. See 18 U.S.C. § 2510(5). Giving off...