United States v. French

• Decision Date: 05 May 1976
• Docket Number: Crim. No. 76-76-D.
• Citation: 414 F. Supp. 800
• Parties: UNITED STATES of America, Plaintiff, v. Larry FRENCH et al., Defendants.
• Court: U.S. District Court — Western District of Oklahoma

414 F. Supp. 800

UNITED STATES of America, Plaintiff, v. Larry FRENCH et al., Defendants.

Crim. No. 76-76-D.

United States District Court, W. D. Oklahoma.

May 5, 1976.

David L. Russell, U. S. Atty., by Drew Neville and Duane H. Miller, Asst. U. S. Attys., Oklahoma City, Okl., for plaintiff.

James A. Clark, Denver, Colo., for defendants Jacobs and Brutico.

ORDER ON MOTION TO SUPPRESS OF DEFENDANTS JACOBS AND BRUTICO

DAUGHERTY, Chief Judge.

Defendants Jacobs and Brutico have moved this court to enter an order suppressing certain evidence pursuant to Rule 41 and Rule 12 of the Federal Rules of Criminal Procedure, on the ground that said evidence was the poisoned fruit of at least two illegal searches. On April 29, 1976, the court conducted an evidentiary hearing and based upon the evidence adduced therein finds the essential facts controlling the controversy are that on October 11, 1975, an agent of the Drug Enforcement Administration acting in an undercover capacity and who was also duly commissioned as a custom agent, flew a DC-6 containing 8000 pounds of marijuana into the United States from South America. He was accompanied by two other employees of the Drug Enforcement Administration. Upon entry into the territory of the United States he seized the green leafy substance which had been imported and landed in New Orleans, Louisiana, where they were met by other government agents. A field test was conducted which proved positive for marijuana by one of these agents and another government agent then implanted electronic tracking devices in two of the approximately 250 bags of marijuana. Thereafter the pilot continued the flight to Chickasha, Oklahoma, where the plane was met by certain of the defendants. Prior to the landing law enforcement officers had set up surveillance around the airfield. The transfer of the marijuana from the plane into two Hertz rental trucks was made in the presence and under the observation of federal agents. They were then able to maintain constant visual surveillance as the trucks traveled to Shawnee, Oklahoma, and then after an overnight stop to the Gallman farm near Goshen, Arkansas. Officers then observed the marijuana to be unloaded from the Hertz trucks into a barn on the farm. There was no electronic tracking of the contraband from New Orleans, Louisiana to the Arkansas destination.

Agents of the Drug Enforcement Administration continued to maintain an uninterrupted surveillance of the barn. On October 14, 1975, at approximately 9:30 p. m. a blue 1971 Chevrolet panel truck arrived at the barn and several sacks of the marijuana were moved from the barn and placed in the truck. This truck was then followed to the Scottish Inn Motel in Fayetteville, Arkansas, where the driver parked the truck around 10:00 p. m. and entered room 209. Shortly after midnight of October 15, 1975, defendant Jacobs arrived at the Scottish Inn driving a 1974 Dodge. He parked this vehicle and went into room 209. Sometime later that day he came out of this room and got into the 1971 blue Chevrolet panel truck. He then drove it to Burlington, Colorado, where he spent the night at the Ramada Inn. He was trailed at all times on the ground by officers who, although they were aware of the presence of the "beeper" in the marijuana cargo, did not utilize it in any way to keep track of the truck and at all times kept in visual contact with the vehicle. The truck was also being observed from the air and the pilot at one time over western Kansas checked to see if the device was emitting signals. Although he found that it was, its use was unnecessary since the pilot never lost view of the truck.

After Jacobs left Burlington the ground surveillance continued uninterruptedly and again these agents never attempted to use the electronic tracking device. However, a pilot who flew out from Denver to participate in the air surveillance did turn on his tracking equipment but found the signals so weak and indistinct they were of no value to him and he was able to maintain constant visual observation of the vehicle.

Jacobs drove the truck to an 85-acre farm which he had rented in a remote area near Nederland, Colorado. The house was located north of an east-west private road which ran across the property and could not be viewed from the public road. Jacobs drove through the gateway at the entrance to the farm on to the private road and proceeded to the house. The agents on the ground, who had maintained their visual contact, followed through the gateway and down the private road past the driveway to the house. They then took up a vantage point north of the road and east of the house among some sparse trees where they could observe the activities at the house. They were then able to see the defendant Jacobs assisted by defendants Brutico and Fishkin unload some of the marijuana from the truck and carry it into the house. At this time the agents closed in and arrested these three defendants. A search warrant was thereafter obtained for the house rented by Jacobs and the 1971 blue panel truck which had been driven by him. In the execution of these warrants the agents seized 23 sacks of marijuana.

Specifically the movants ask that the court suppress all tangible evidence seized in these searches conducted at the farm as well as all testimony concerning their movements and activities from Fayetteville through their arrest. They contend that the installation of the electronic tracking device in the marijuana at New Orleans, Louisiana and any subsequent monitoring violated their Fourth Amendment rights. They also assert that the federal agents conducted an illegal search within the meaning of the Fourth Amendment by maintaining visual surveillance of defendant Jacobs' house and the surrounding area which was allegedly accomplished by means of an unlawful trespass. They do not contend that the search warrants were facially invalid but argue that the fruits obtained were fatally tainted by the preceding illegal conduct under the doctrine of Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

The critical questions presented are:

1. Did the installation of the electronic device and any monitoring of it require prior judicial approval based on probable cause?

2. Was the entry upon the Jacobs farm and subsequent surveillance an unconstitutional invasion of movants' Fourth Amendment rights?

3. "Whether granting the establishment of the primary illegality the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint." Wong Sun v. United States, supra at 487-488.

The court concludes that all issues must be determined adversely to the movants. As soon as the marijuana entered the territory of the United States it became contraband illegally imported into the United States and was subject to seizure by customs officers or other authorized agents. Its interception by the agents upon the entry into the United States was a legal border seizure. See United States v. Galvez, 465 F.2d 681 (CA10 1972). Having lawfully seized the contraband the agents could lawfully implant the "beeper". Logically since the officers could absolutely seize the contraband the lesser act of inserting the tracking devices must necessarily be permissible. Since it was unnecessary for a warrant to be obtained to seize the contraband it was unnecessary to ask a magistrate for an order to install the tracking devices. The act of inserting the devices in the contraband under the circumstances here presented violated nobody's constitutional rights.

The agents could undertake a controlled or monitored delivery of the intercepted contraband to the ultimate recipients. United States v. Galvez, supra. It is not impermissible to permit contraband to reach its destination for:

"If contraband were simply seized by customs agents and disposed of, then the intended receivers of the illicit goods would go unpunished."

Chapman v. United States, 443 F.2d 917, 920 (CA10 1971).

The location of the "beeper" within the 1971 Chevrolet blue panel truck was not accomplished by any act of a government agent. It was the criminal conspirators themselves that took the marijuana from the barn and placed it in the truck to be driven by Jacobs from Arkansas to Colorado. There was no actual trespass by the government resulting in the presence of the "beeper" on board Jacobs' truck. The absence of government activity at the farm negatives any requirement at that time for antecedent judicial approval. The government did nothing in Arkansas to require judicial sanction.

Having determined there was no forbidden government action in the installation of the "beeper" in the contraband and its ultimate location within the truck does not resolve the question of the legality of monitoring the device. It would appear that the more significant judicially cognizable event, if any, is the monitoring of the device rather than its installation, for only then is any information yielded which perhaps makes it a search. The device emits a radio signal which enables its location to be determined by directional finders. It does not record sound nor transmit conversation. Its use in this case was for the purpose of tracking the marijuana. It was only coincidental that it came to rest in the particular truck and that Jacobs happened to be the driver. Its use was aimed not at keeping track of Jacobs or the truck as such. It is true, of course, that the Fourth Amendment does not limit only searches and seizures of tangible property but extends as well to some kinds of electronic surveillance of persons. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). This court cannot, however, equate the tracking of contraband with the recording of telephone conversations. There was here no electronic surveillance of any person. What expectation of...