United States v. Cassity

• Decision Date: 02 April 1985
• Docket Number: Crim. No. 77-80932.
• Citation: 604 F. Supp. 1566
• Parties: UNITED STATES of America, Plaintiff, v. Larry Wayne CASSITY, Stephen Gordon Lenk, Billy Sword, Defendants.
• Court: U.S. District Court — Western District of Michigan

604 F. Supp. 1566

UNITED STATES of America, Plaintiff, v. Larry Wayne CASSITY, Stephen Gordon Lenk, Billy Sword, Defendants.

Crim. No. 77-80932.

United States District Court, E.D. Michigan, S.D.

April 2, 1985.

Ross Parker, Chief, Asst. U.S. Atty., Detroit, Mich., for plaintiff.

Edward Wishnow, Southfield, Mich., for Larry Cassity and Stephen Lenk.

Thomas Rosender, Pontiac, Mich., for Billy Sword.

MEMORANDUM OPINION

FEIKENS, Chief Judge.

On August 11, 1978, a jury convicted defendants Larry Cassity, Stephen Lenk, Billy Sword, Terry Hines, and Raymond Dean for conspiracy to manufacture and manufacturing amphetamine. This decision was appealed twice and ultimately reversed by the United States Court of Appeals for the Sixth Circuit on the ground that the warrants obtained by police officers prior to installation and monitoring of three electronic homing transmitters ("beepers") were invalid and, consequently, evidence obtained as a result should have been suppressed at trial. United States v. Cassity, 720 F.2d 451 (6th Cir.1983) ("Cassity III"), vacated, ___ U.S. ___, 104 S.Ct. 3581, 82 L.Ed.2d 879 (1984). The Court of Appeals' ruling was vacated by the United States Supreme Court and remanded for further consideration in light of the limited good faith exception to the exclusionary rule announced in United States v. Leon, ___ U.S. ___, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). United States v. Cassity, ___ U.S. ___, 104 S.Ct. 3581, 82 L.Ed.2d 879 (1984). After carefully considering the parties' arguments on remand, I conclude that the disputed evidence in this case was obtained by officers acting in reasonable reliance on warrants issued by detached and neutral magistrates, and therefore was properly admitted at trial.

I. BACKGROUND

The pertinent facts have been explained previously in this case and can be briefly summarized here. See United States v. Cassity, 631 F.2d 461, 462-63 (6th Cir.1980) ("Cassity I"); United States v. Cassity, 546 F.Supp. 611, 612-13 (E.D.Mich.1981) ("Cassity II"), aff'd in part and vacated in part, 720 F.2d 451 (6th Cir.1983), vacated, ___ U.S. ___, 104 S.Ct. 3581, 82 L.Ed.2d 879 (1984). The case arose because of the undercover investigative efforts of a Drug Enforcement Administration ("DEA") Special Agent, John Graetz. Graetz posed as a supplier of precursor chemicals and equipment used in the manufacture of illegal narcotics. He supplied these goods to Jay Cody, the central figure in a conspiracy to manufacture amphetamine.

Over the course of Graetz's contact with Cody, he supplied Cody three different items in which hidden beepers were attached. The purpose was to facilitate surveillance of Cody so that the DEA could discover who else was involved in the conspiracy as well as the location of the clandestine laboratory used for manufacturing the narcotics. Graetz testified that electronic surveillance was necessary because Cody was very adept at detecting and avoiding visual surveillance.

The beepers used in this surveillance were attached to a can of ether, a can of benzene, and a heating mantle. The installation and monitoring of the first beeper was undertaken after securing a warrant from a magistrate on July 8, 1977. This warrant did not contain a time limit. Warrants for the other beepers were issued by a second magistrate, but only one of these warrants contained a time limit.

Monitoring of the beepers, combined with visual surveillance, allowed the DEA to locate the clandestine laboratory and identify other members of the conspiracy. On August 17, 1977, DEA agents executed a search warrant at the residence in which the laboratory was located. Defendants were subsequently indicted for conspiracy to manufacture and manufacturing amphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846.

Prior to trial on these charges, defendant Cassity moved to suppress evidence obtained as a result of the beeper installed on July 11, 1977. After conducting an evidentiary hearing on this motion, I held that the evidence should not be suppressed, reasoning that beepers were merely a sophisticated substitute for visual surveillance and, in any case, the officers had sought the independent judgment of a magistrate concerning the propriety of the beeper surveillance. The charges against the defendants were then tried before a jury and each defendant was convicted.

In July, 1980, the Sixth Circuit held in an unrelated case, United States v. Bailey, 628 F.2d 938 (6th Cir.1980), that valid warrants, which included time limits, were required to monitor beeper signals. Three months later, it vacated the Cassity convictions in light of the Bailey decision, and remanded for hearings to determine whether the use of beepers violated defendants' legitimate expectations of privacy. Cassity I.

On remand, I held that defendants Cassity, Sword, and Lenk did have reasonable, legitimate expectations of privacy in the various addresses through which chemicals were traced by the beepers, but that a fourth defendant, Terry Hines, did not have such an expectation in a van rented by the government. I then considered whether the rule announced in Bailey should be retroactively applied. Determining that retroactive application of that rule would not further the purposes of the exclusionary rule, I held that the motion to suppress had been properly denied and reinstated the convictions. Cassity II.

This decision was appealed and the Sixth Circuit affirmed the conviction of defendant Hines, but vacated the convictions of Cassity, Sword, and Lenk. Cassity III. After agreeing with the determination that the beepers violated these defendants' reasonable expectations of privacy, the Court of Appeals held that this Court had exceeded the scope of the remand when it considered Bailey's retroactivity. This ruling was appealed to the Supreme Court, which vacated the Court of Appeals' decision and remanded the case for reconsideration in light of United States v. Leon, ___ U.S. ___, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). United States v. Cassity, ___ U.S. ___, 104 S.Ct. 3581, 82 L.Ed.2d 879 (1984).

II. DISCUSSION

A. United States v. Leon

The exclusionary rule is a judicially created remedy that generally operates to exclude from criminal proceedings evidence obtained in violation of the Fourth Amendment. In United States v. Leon, ___ U.S. ___, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), the Supreme Court considered whether this rule "should be modified so as not to bar the use in the prosecution's case-in-chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause." 104 S.Ct. at 3409.

In analyzing this issue, the Court began by indicating that "it must be resolved by weighing the costs and benefits of preventing the use in the prosecution's case-in-chief of inherently trustworthy tangible evidence obtained in reliance on a search warrant issued by a detached and neutral magistrate that ultimately is found to be defective." 104 S.Ct. at 3412-13. As a general matter, the Court indicated that the "substantial social costs exacted by the exclusionary rule ... have long been a source of concern," 104 S.Ct. at 3413, while the rule's effectiveness in deterring police misconduct—particularly objectively reasonable conduct—has frequently been questioned. 104 S.Ct. at 3419. Focusing on the situation in which officers have acted objectively reasonably, and in which a magistrate has issued a warrant, the Court found a clear imbalance in the costs and benefits of the rule:

In short, where the officer's conduct is objectively reasonable,

"excluding the evidence will not further the ends of the exclusionary rule in any appreciable way; for it is painfully apparent that ... the officer is acting as a reasonable officer would and should act under the circumstances. Excluding the evidence can in no way affect his future conduct unless it is to make him less willing to do his duty."

This is particularly true, we believe, when an officer acting with objective good faith has obtained a search warrant from a judge or magistrate and acted within its scope.

104 S.Ct. at 3420 (quoting Stone v. Powell, 428 U.S. 465, 539-40, 96 S.Ct. 3037, 3073, 49 L.Ed.2d 1067 (1976) (White, J., dissenting) (footnote omitted).

Finding that the "marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion," 104 S.Ct. at 3421, the Court established a limited good faith exception to the exclusionary rule. This "good-faith inquiry is confined to the objectively ascertainable question whether a reasonably well-trained officer would have known that the search was illegal despite the magistrate's authorization." 104 S.Ct. at 3421 n. 23.

The Court did indicate that in some cases exclusion would be appropriate even if a warrant was obtained, although it repeatedly noted that this would rarely be the case. See, e.g., 104 S.Ct. at 3422 ("When officers have acted pursuant to a warrant, the prosecution should ordinarily be able to establish objective good faith without a substantial expenditure of judicial time."); 104 S.Ct. at 3423 ("the rule's purposes will only rarely be served by applying it in such circumstances"). Specifically, suppression remains appropriate:

(1) "If the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth." 104 S.Ct. at 3421.

(2) "Where the issuing magistrate wholly abandoned his judicial role ...." 104 S.Ct. at 3422.

(3) Where the warrant is "based on an affidavit `so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.'" 104 S.Ct. at 3422 (quoting Brown v. Illinois, 422 U.S....