United States v. Neet

• Decision Date: 09 January 1981
• Docket Number: Crim. A. No. 80-CR-281,282 and 283.
• Citation: 504 F. Supp. 1220
• Parties: UNITED STATES of America, Plaintiff, v. William Jay NEET, Jon Ray Neet, Frank Armando Cuaron, David Allen Van Omen, and Mary Grace Miller, Defendants.
• Court: U.S. District Court — District of Colorado

504 F. Supp. 1220

UNITED STATES of America, Plaintiff, v. William Jay NEET, Jon Ray Neet, Frank Armando Cuaron, David Allen Van Omen, and Mary Grace Miller, Defendants.

Crim. A. Nos. 80-CR-281, 282 and 283.

United States District Court, D. Colorado.

January 9, 1981.

COPYRIGHT MATERIAL OMITTED

Brian McConaty, Asst. U. S. Atty., Denver, Colo., for plaintiff.

David Worstell, Denver, Colo., Stephen E. Tinkler, Tinkler & Carwin, Denver, Colo., Stanley H. Marks, Jonathan L. Olom, Marks & Olom, Denver, Colo., Michael H. Bynum, Chrisman, Bynum & Johnson, P. C., Boulder, Colo., Robert Kendig, Denver, Colo., Daniel C. Hale, Miller & Gray, P. C., Boulder, Colo., for defendants.

MEMORANDUM OPINION AND ORDER

CARRIGAN, District Judge.

In these three related cases, the United States charges the defendants with various degrees of involvement in sale and possession for distribution of cocaine which allegedly occurred on October 6, 1980. In case number 80-CR-281, defendants Jon Neet, William Neet, Frank Cuaron and David Van Omen are each charged with two counts of distributing cocaine and one count of conspiracy to distribute cocaine, and defendants Cuaron and Van Omen are also charged with possession with intent to distribute. In case number 80-CR-282, defendants William Neet and Jon Neet are each charged with one count of distribution of cocaine. In case number 80-CR-283, defendant Mary Miller is charged with one count of possession of cocaine with intent to distribute.

The various defendants filed numerous motions, which were briefed and argued at a lengthy hearing before this Court. There was an extensive evidentiary hearing on motions to suppress filed by defendants Cuaron, Van Omen and Miller.¹ At the conclusion of the hearing, the Court orally entered tentative findings and conclusions on all motions, but has concluded after further study and reflection that a supplementary written order is necessary to properly deal with the motions to suppress. To the extent that the instant order conflicts with the Court's earlier oral rulings, this written order controls.

Background Facts.²

The transactions which took place in this case were the result of combined activities of agents of the Drug Enforcement Administration (DEA) and police officers of the cities of Boulder, Denver, and Greeley, Colorado. On October 6, 1980, pursuant to earlier negotiations, two DEA agents met with William and Jon Neet, who are brothers, for the purpose of purchasing cocaine. At approximately 11:45 a. m. that day, at the Boulder Inn, in Boulder, Colorado, the Neets delivered a quantity of cocaine to the DEA agents in return for about $8,000 cash. Jon Neet then told the agents that he was to meet with his supplier shortly thereafter, and the parties negotiated for the purchase and delivery of additional cocaine.

The parties arranged to have the agents and William Neet remain at their respective rooms at the Boulder Inn, while Jon Neet would travel to his source to obtain the additional narcotics. Jon told the agents that he would take a circuitous route to the supplier's location, making sure that he was not followed. He stated that it was a matter of utmost importance to protect his supplier's identity, because the supplier was a "family man" whose reputation had to be protected.

Before Jon left the Boulder Inn, officers attached an electronic tracking device, or "bumper beeper," to his car. Surveillance agents followed Jon's car on a rather lengthy, circuitous journey through the Boulder area, but lost visual contact with the car at approximately 12:10 p. m. At about 12:30 p. m., with the aid of the bumper beeper, officers relocated Jon's car parked in front of a single-family residence at 6968 Sweetwater Court, in Boulder County (hereinafter simply referred to as "the house"). At approximately the same time, William Neet informed the agents at the Boulder Inn that he had received a telephone call from Jon, who had stated that he was then at his supplier's house. The officers placed the house under surveillance.

At approximately 1:00 p. m., the police observed a man later identified as the defendant Van Omen arrive and enter the house carrying an "oxblood" colored briefcase.

At 1:35 p. m., Jon left the house and proceeded on a more-or-less direct route back to the Boulder Inn. Just before 2:00 p. m. he delivered a large quantity of cocaine to the DEA agents. Jon and William were then promptly arrested. At about the same time, the officers watching the house saw a woman, later identified as Mary Miller, enter the house.

Officers continued surveillance of the house for an additional fifty-five minutes after the Neets were arrested, but they saw no further activity. At 2:55 p. m., two DEA agents and an officer from the Boulder Police Department went to the front door of the house. The door was ajar, and through the five or six inch opening one of the officers saw a woman walk by, going from one room to another. The officer pushed the door wide open, identified himself as a law enforcement officer, and entered the house. Other officers followed.

The second officer to enter the house, a DEA agent, looked up the stairway, which was situated adjacent to the entry way, and noticed the defendant Van Omen at the top of the stairs, in a short hallway. He saw Van Omen turn or nod his head toward the partially open door of a room on the second floor, whereupon the door to that room immediately closed. The agent drew his pistol, ran up the stairs and entered the room. There he found defendant Cuaron attempting to flush a large quantity of a white powdery substance, later identified as cocaine, down the toilet. The agent saw an additional quantity of the white substance, in crystals, lying on top of a dresser in the room, and the officer immediately seized it.

Meanwhile, other officers were in the process of securing the premises. They asked the other three people—Van Omen, Miller, and Mrs. Cuaron—to remain in the living room area. Other officers also entered from the rear of the house to be sure it was secured. Cuaron was subsequently brought downstairs and kept with the other three. None of the four was formally arrested at the time, but from the time the officers entered the residence until they left at approximately 7:30 that night, no one was permitted to leave the living room for any purpose without being accompanied by an officer. All were requested to give general identification information for completion of forms normally executed following an arrest.

After the arrest of the Neets, officers had immediately begun the process of preparing an affidavit in support of a search warrant for the house, and the statement of facts in the affidavit was supplemented with information obtained after the officers had entered the house for the purpose of securing it. Efforts to obtain a warrant were delayed considerably when the officers discovered that none of the district or county judges resident in Boulder were available because they all were out of town attending the annual State Judicial Conference. Eventually the officers had to travel to Longmont, where a retired judge issued the search warrant.

The warrant authorized a search of the premises at 6968 Sweetwater Court and "all persons located" there, for narcotics, any part of the money used to pay for the cocaine delivered by the Neets during the first transaction, and any documents tending to identify persons involved in the transactions. This warrant was executed by the officers shortly after 7:00 p. m. During the ensuing search, cocaine was found in defendant Miller's purse, and additional cocaine and narcotics paraphernalia were found elsewhere. Officers opened the oxblood-colored briefcase which Van Omen had carried into the house, and there discovered a large quantity of money, including marked bills which had been used to purchase cocaine from the Neets.

Analysis of the Issues.

1. Use of the Bumper Beeper.

A threshold issue is whether use of the bumper beeper on Jon Neet's car, which led the officers to the house, was an illegal "search" in violation of the Fourth Amendment, thus rendering its fruits—the subsequent search and seizures at the house—tainted. Since the United States concedes that the surveillance team lost visual contact with the car for approximately twenty minutes, it seems clear that the officers probably would not have found the car at the house without the beeper.

The Tenth Circuit has not decided whether the use of a tracking device in the manner involved in this case constitutes a "search" for Fourth Amendment purposes. See United States v. Chavez, 603 F.2d 143, 145 (10th Cir. 1979) (assuming, without deciding, that the use of a beeper does constitute a search). The Fifth Circuit has held that the use of beepers does constitute a search. United States v. Michael, 622 F.2d 744 (5th Cir. 1980); United States v. Holmes, 521 F.2d 859 (5th Cir. 1975) (equally divided court, en banc). The Eighth Circuit, on the facts of a particular case, has gone the other way. United States v. Bruneau, 594 F.2d 1190 (8th Cir. 1979).

This Court finds the reasoning of the Fifth Circuit case persuasive. In this case, however, as in Chavez, the issue need not be decided, because none of the defendants here asserting the invalidity of the use of the device has standing to raise the issue. The Supreme Court has recently made it quite clear that an illegal search violates only the rights of those who have a "legitimate expectation of privacy in the invaded place." United States v. Salvucci, ___ U.S. ___, 100 S.Ct. 2547, 2549, 65 L.Ed.2d 619 (1980). See also Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). Defendants charged with crimes of possession no longer have "automatic standing," and may only claim the benefits of the exclusionary rule if their own Fourth Amendment rights have in fact been violated. Id.

Here the "invaded" property was the car. Defendants...