United States v. Barry Dean Michael, A/K/A Mike Thompson, A/K/A Mike Johnson, Defendant

sсreening panel terpretation. I am the Clerk to a left with the feeling submitted the administrative interpretation none of judges was whom is composed bom of the preconceived administrator’s no- panel member previously con- be, tion of what should rather than of an case, sidered the for consideration attempt fairly Congressional to construe screening though originally sub- purpose and intent. mitted it. question before us is not whether the

petitioner statute, should deported. be it, interpret

as I simply his means that case Attorney

should be submitted to the Gener- who,

al of the United States after consider- factors,

ing all would free to exercise his as to petition-

discretion whether or not the deported.

er should be America,

UNITED STATES of Plaintiff-Appellant, Barry MICHAEL, Dean a/k/a Mike Thompson, Johnson, a/k/a Mike ROBBINS, Plaintiff-Appellant, J. Delores Defendant-Appellee. No. 79-2679. CLINIC, WHITE-WILSON MEDICAL Appeals, United States Court of INC., Defendant-Appellee. Fifth Circuit. No. 80-5442. May 1981. Appeals, Court of United States Fifth Circuit.

BUnit

April 1981. Pensacola, Fla., Hammons, L.

Joseph

plaintiff-appellant. Zinober, Fla., 0. Tampa,

Peter for defend-

ant-appellee.

ORDER

GOLDBOLD, Judge. Chief screening

This case submitted to Tjoflat,

panel composed Judges Vance A. decided without

and Thomas Clark and April opinion entered argument

oral

9, 1981, 642 F.2d

Judge Clark has concluded that he was case disqualified to sit

either participa- recused himself from

should have

tion. opinion and the is WITHDRAWN will be The case

submission VACATED. Clark, Judge, Circuit

Charles Hill, Gee, Tjoflat, James C. Hender-

whom

son, Judges, joined, Reavley, Circuit opinion. concurred and filed

specially

Tate, Judge, with whom Krav- Circuit Politz, Johnson, Jr.,

itch, Hatch- Frank M.

ett, Randall, Thomas A. Clark and Jerre S.

Williams, Judges joined, filed a dis- Circuit

senting opinion.

Godbold, Judge, with whom Chief Johnson, Jr., Politz,

Kravitch, Frank M. Clark,

Hatchett, Randall, Tate, Thomas A. Williams, Judges, Circuit

and Jerre S. opinion.

joined, dissenting filed a

AINSWORTH, Judge: Circuit prosecution requires This criminal us to appropriate determine the standard for the warrantless installation of an electronic (a tracking “beeper”) on the device exterior parked public place. a vehicle in a question impression first remains one of for equally this circuit because of our divided considering vote when the same in issue Holmes, (5th United States v. 537 F.2d 227 1976) (en banc); (Ains Cir. see id. at 228 worth, J., Holmes, in dissenting). As placed was en banc because case of its exceptional importance.1 Defendant-appellee Barry Dean Michael unlawfully was indicted on two counts: manufacturing possessing and with the in- Sutton, Atty., William Asst. U. At- S. S. tent II distribute Section Controlled lanta, Ga., Wallace, Sec., Appellate Ann T. Substance, methylenedioxyamphetamine Div., C., Washington, plain- Criminal D. for (MDA), conspiring to distribute MDA tiff-appellant. 841(a)(1) violation of 21 U.S.C. and 846. §§ Horn, Atlanta, Ga., defendant-ap- A1 suppress Michael moved certain evidence pellee. unconstitutionally as seized. The district

court, relying panel opinion Holmes,2 granted Michael’s motion to sup- press respect to evidence seized from a warrant, pursuant warehouse to a but GODBOLD, Judge, Before Chief agents through which DEA had discovered BROWN, AINSWORTH, CHARLES the warrantless installation of CLARK, RONEY, GEE, TJOFLAT, HILL, the exterior of a van which Michael had FAY, RUBIN, VANCE, KRAVITCH, panel rented. R. at 118-120. A of this JOHNSON, Jr., GARZA, M. court, FRANK HEN relying independent both on its anal- DERSON, REAVLEY, POLITZ, HATCH ysis panel opinion,3 and on the Holmes af- ETT, ANDERSON, RANDALL, TATE, firmed the district court. United States v. JOHNSON, Michael, D. (5th 1980). SAMUEL THOMAS A. 622 F.2d 744 Cir. CLARK, WILLIAMS, banc, and JERRE S. Cir court voted rehear this case en Michael, Judges.* (5th cuit United States v. 628 F.2d 931 * Coleman, Judge, partici- 680, 683, Dougherty, Circuit elected not to helm v. 775, 129 Fla. 176 So. pate (1937); Co., Talley in the consideration or decision of this 777 v. Alton Box Board appeal. 137, 138, 349, Ill.App.2d (4th 37 185 N.E.2d 350 1962); 426, 428, Hopkins, Dist. Luck v. 92 Tex. Fed.R.App.P. 35(a); 1. Fifth Circuit Local Rule 360, (1899); Sawyer Donley 49 S.W. 361 v. 16.2.4. Dist., County 106, Hosp. (Tex. 513 S.W.2d 109 1974, writ); Civ.App. no 49 C.J.S. —Amarillo judge It was error for the district to follow Judgments United States v. § Holmes, panel opinion States v. United 1258, Conroy, (5th 1979), 589 F.2d Cir. (5th 1975), precedent. Cir. contrary. not to the put court’s vote to Holmes en banc vacated the panel opinion. See Local 17. A vacated Rule panel independently adopted 3. The in Michael judgment leaves the case as if no decision had reasoning Vai, See, of the Holmes and did not g., 199 Cal. bеen entered. e. Lantz precedent. 193, (1926); view Holmes as See United States 248 P. Clarke v. Michael, Baird, 642, 644, 622 F.2d 744 n.1 Cir. 98 Cal. 33 P. 756-57 Edwards, 906, 912, 1980). (1893); Cal.App.3d In re (2d 1972); Cal.Rptr. Dist. Adel- panel opinion. Thompson” him “Mike had ordered another 1980), vacating thus “Thompson” Rule 17. We re- of acetone and that usu- Local drum Fifth Circuit See court. within ally picked up district his order the hour. judgment verse arrived at Agent partner and his Sweat THE FACTS I. saw “Thompson” Burris before acetone into a van.5 employee “Thompson” load the early of Scientific sur- Products, the van visual supply house in Atlan- The followed a chemical parked lot ta, Drug “Thompson” Ad- until in a Georgia, notified Enforcement veillance (DEA) agents pizza Andrew restaurant and went in- adjoining ministration purchasing large quantities “Thompson” was inside the side. While Welch type used equipment restaurant, Agent partner, Agent glassware Sweat’s drug laboratory operations. Smith, clandestine on the exterior of installed a investigation, team of obtaining further Upon van without first a warrant. James learned by Agent led Sweat agents investigation by the DEA estab- Further chemicals purchasing was also that Welch Thompson” that was an alias lished “Mike Company in Atlanta. Burris Chemical from by appellee Barry Dean Michael. Sub- used Welch they discovered that particular, In beeper placed the on sequent monitoring of of and a purchased a barrel acetone had ultimately van led DEA Michael’s the in 1977. of formic acid December barrel where, pursuant tó a agents to a warehouse acid be used to Both acetone and formic can warrant, chеmicals, they equip- seized the manufacture MDA. ment, quantities of MDA which are the 8,1978, an Burris August employee of subject suppression On of motion. Michael’s DEA that a Company notified the Chemical large Thompson” purchased had

“Mike II. THE LAW acetone, gallons, day 20 quantity look fourth amendment to We to the previous purchases. and had made several case, in whether the facts this determine time, Agent learned the About same Sweat above, for provide a sufficient basis related had returned the Thompson” “Mike on the warrantless installation Decem- empty drum from Welch’s acetone amendment, van. fourth Michael’s had purchase 1977 directed ber part, protects people’s “persons, pertinent early Welch. dejposit be sent to Also effects, houses, against unrea papers, and August, employees Agent told Sweat Burris Although searches seizures.” sonable July purchased had some that on 20 Welch originally protecting property viewed as acid, in the muriatic another chemical used individuals, Supreme rights of Court time, Agent At manufacture of MDA.4 rejected has now the idea that fourth employee told to let the Burris Sweat on coverage amendment turns “arcane dis Thompson” know ever or- Sweat if “Mike developed tinctions ... law.” any dered chemicals. more 128, Illinois, 143, 99 Rakas S.Ct. 10, 421, 430, Instead, August At lunch the Burris 58 387 time L.Ed.2d Agent employee protects to tell fourth amendment individuals contacted Sweat July, agents (R. 76), In late DEA learned that vol. II at the GBI 4. also chase of iso-safrole Christie, agents Janice been Christie had arrested Geor- arrest of of which DEA aware, gia Investigation possession supports agents’ Bureau of for belief that were pound (R. 23-24). engaged vol. II one of MDA Welch and his were associates driving registered vehicle to Christie was manufacture MDA. vehicle, Andrew Inside the Welch. GBI iso-safrole, observing receipt pounds After believed be “Mike a man found a for 500 Burris, MDA, Thompson” pick up make some chemicals at another chemical used to made out Smith, investigation Agent partner, Agent “Mike Johnson.” Later re- Sweat’s radioed appellee operator vealed that was an “Johnson” alias of DEA office call Burris and had Company Michael. make sure the individual Chemical Thompson.” vol. 127-28. was “Mike R. II at Although Agent August Sweat stated that on pur- 10 he had not connected Michael with the 256 Likewise, ransacking stop rea- and frisk.8 legitimate their

from violations id.; See of evidence privacy. house in search expectations suspect’s of a sonable ‍‌​‌‌​​‌​​​​​​​​‌‌​​​‌​​‌​​‌‌‌‌‌​​​​‌​‌​​‌‌‌​‌​‌​‍States, Katz v. United U.S. requires justification intru- more (Har- 507, 516, (1967) 19 L.Ed.2d 576 5. Ct. of a sus- does the examination sion9 than States, Jones v. United lan, J., concurring); its vehicle pect’s automobile to discover 1253, 1256, 493, 498, U.S. Applying this dual number.10 identification (1958). Expectation priva- L.Ed.2d analysis to the privacy and intrusiveness especially appropriate in cases cy analysis is case, we hold that facts of the instant which involve an indi- the instant one like in the attach- involved minimal intrusion rights respect to an automo- vidual’s van, parked ment of a to Michael’s Lewis, bile.6 In Cardwell sufficiently justified public place, was in a 41 L.Ed.2d 325 fourth satisfy any of Michael’s so as Blackmun (1974) (plurality opinion), Justice con- amendment stated, as Fourth Amendment “[I]nsofar cerns. vehicle, to a it is protection extends motor right is the touchstone APPLICATION III. inquiry.” of our members of the ma- We note that some addition, cases fourth amendment hold that the installation jority would recognized degree of intru- have not a search or on the van is privacy is relevant suspect’s sion into a all, implicate thus does not seizure at suspect’s deciding any whether con- we interests. While any fourth amendment infringed. rights stitutional have been view, under reject this we feel that do not Thus, body,” into the human “intrusions the installation of the presented, the facts nature, extremely invasive because of their we beeper permissible even if assume justification satisfy to require more amendment,7 was a search.11 does a limited the installation fourth than 1073, 1259, denied, permis 55 cert. 434 U.S. 98 S.Ct. The circuits have considered the 6. (1978); priva sibility installing beepers Himmel L.Ed.2d 777 United States v. have used 991, (5th Cir.), See, Bailey, wright, cy analysis. g., cert. de F.2d 994 e. United States v. 551 298, nied, 902, 938, (6th 1980) (petition 98 S.Ct. 54 L.Ed.2d 189 434 U.S. 628 F.2d rehearing pending); 940 Cir. Bernard, (1977). States v. United 854, 1980); (9th United States 625 F.2d 860 Cir. Bruneau, 1190, (8th Cir.), 573, 589-90, York, 1196 cert. Payton v. 594 F.2d 445 U.S. 9. v. New 94, denied, 847, 1371, 1381-82, (1980) 62 L.Ed.2d 444 U.S. 100 S.Ct. 63 L.Ed.2d 639 100 S.Ct. (1979); Washington, cause). v. 586 (warrant by probable 61 United States supported See 1147, (7th 1978); States, 206, 210, United States F.2d 1157 Cir. 385 87 Lewis v. United U.S. 346, (10th Clayborne, 427, 424, (1966). v. 1978); 584 F.2d 348 Cir. 17 L.Ed.2d 312 S.Ct. 106, Moore, 562 F.2d United States v. (1st 1977). 110 Cir. Johnson, (5th States v. 10. United (en 1970) banc) (no probable warrant or Cir. 757, 770, California, 384 U.S. 86 7. Schmerber v. Opper- necessary). See South Dakota v. cause 1826, 1835, (1966) (war- 16 908 S.Ct. L.Ed.2d 3096, 3092, man, 364, 367, 49 428 U.S. 96 cause). by probable supported rant (1976); Mar- United States v. L.Ed.2d 1000 3074, tinez-Fuerte, 543, 561, 428 U.S. 96 S.Ct. 1868, 20, Ohio, 1, Terry 88 S.Ct. v. 3084-85, (1976). 49 L.Ed.2d 1116 33, 1879, (1968); id. at 88 S.Ct. 20 L.Ed.2d 889 J., (reasonable (Harlan, concurring) at 1886 classify taken suspicion”). the actions Wil- 11. It is difficult See Adams v. “articulable 1921, аgents 143, a search liams, case as either the DEA 32 L.Ed.2d 407 U.S. 92 S.Ct. Bailey, 628 recognized States v. or seizure. See United This circuit has 938, opin- (6th 1980). panel something Cir. cause F.2d less than whether may justify “pre-Katz jurisprudence” to find depends part ion relied on a search beeper without the that the attachment In United States intrusiveness of that search. possessory Afanador, (5th with a of someone Cir. consent v. 1978), 567 F.2d v. said, “Thus, United States van was a search. ‘rea- constitutes we what 1980). Michael, (5th Cir. justify particular 622 F.2d suspicion’ search sonable out, However, analysis pointed justify as we have may more intrusive not suffice to property in terms of cases demeaning v. search and seizure United States search.” See also replaced ex- 1977), reasonable Smith, (5th has now been law 1209 n.6 Cir. 557 F.2d The facts known to the DEA A. Privacy they placed agents at the time First, said, as we have Michael’s give enough were them a reasonable rights fourth amendment in this case turn suspicion engaged that Michael was in crim upon expectations his reasonable of privacy. activity. say, specific inal That is to and However, involving search and seizure cases facts, together articulable with rational in have recognized vehicles that an individu facts, reasonably ferences from those war al’s of privacy in his automobile agents ranted the in the belief12 that Mi property. less than in other The Su chael was involved in the illicit manufac preme Court has stated: agents ture of MDA. The had been told recognized significant But this Court has that Michael Welch were associated. differences between motor vehicles and agents had cause to believe permit other which warrantless MDA, manufacturing Welch was United searches of automobiles in circumstances Michael, 622 F.2d 745 n.4 States in which warrantless searches would not 1980), agents Cir. and the knew Michael had be reasonable in other contexts. purchased chemicals consistent with the

manufacture MDA on several occasions. The answer lies in the diminished ex- supported We are in our view that the facts pectation which surrounds the establish light automobile. ...

panel’s However, similar conclusion. Id. Chadwick, 1, 12, United States v. found, the district court “The evidence that (1977); 53 L.Ed.2d 538 was seized from the warehouse was the Foskey, see also United States 636 F.2d product of an unlawful search and there (D.C. 1980). case, In this Michael’s exclusion,” subject (R. 118) fore since view, parked plain public van was in a the DEA obtained no warrant place. Michael drove the van on install which led them to the roads during the daytime. Supreme Likewise, evidence. would have Court said in Cardwell: allowed warrantless use of only A car capacity has little for escaping pub- if both cause and circum scrutiny. lic It public thorough- travels Michael, stances existed. United v. States occupants fares where its and its contents view, supra at disagree 752. We with the district plain are in [citation omitted] court and the and hold that reasona person “What knowingly exposes to the suspicion adequate support ble is war public, office, even in his own home or beeper rantless installation.13 subject not a of pro- Fourth Amendment 5, pectation privacy analysis. precepts,” See note su- fourth amendment United States v. pra, accompanying 489, Miroyan, text. (9th Cir.), 577 F.2d 492 cert. denied, 896, 258, 439 U.S. 99 S.Ct. 58 L.Ed.2d Texas, 47, 51, 12. See Brown v. 443 U.S. 99 S.Ct. (1978). 243 2637, 2641, (1979); Terry 61 L.Ed.2d 357 v. appears require nothing The Sixth Circuit Ohio, 21, 1, 1868, 1880, 392 U.S. 88 S.Ct. 20 warrant, less than a at least for the attachment Cimino, (1968); L.Ed.2d 889 United States v. monitoring beepers goods. United 57, (5th 1980). 631 F.2d 59 Cir. Bailey, (6th 1980). v. States Cir. 942, (may expectation But see id. at 947 be no widely vary 13. The other circuits have reached privacy public vehicle). as to ing travels of a determining proper results for standard ostensibly requires probable The First Circuit beeper. . for the warrantless use of The Ninth cause, although open possibil analyzes the court left Circuit the installation and the moni ity toring beeper separately. of a “reasonable of the Some cause” standard. United Ninth Moore, 106, (1st Circuit cases have held that neither States v. 562 F.2d installation 113 n.3 Cir. monitoring interest, 1977), infringes privacy citing Holmes, nor United States v. 537 F.2d 517, Pretzinger, 227, (5th 1976) (en banc) (Ainsworth, United States v. 542 F.2d 520 228 Cir. (9th Hufford, 1976); J., dissenting). Cir. holdings United States v. 539 The of the cir other 32, denied, (9th Cir.), Michael, F.2d 34 cert. 429 U.S. cuits are discussed in United States v. 1002, 533, (1976). 744, 97 S.Ct. 50 L.Ed.2d 614 An (5th 1980). 622 F.2d 747-48 Cir. might other has held that installation “violate 258 States, U.S., Katz v. United cle doors to determine the correct identifi- 389

tection.” 511; v. United United States S.Ct., panel. on the side at cation numbers at 88 Dionisio, U.S. ^[1] at 93 S.Ct. ^[764] States v. Johnson, 431 F.2d 441 1970) (en banc). 67], L.Ed.2d at 771 [35 590-91, 94 at 2469-70. As at S.Ct. U.S. agents’ the DEA rea We find demonstrate, legitímate Michael’s the cases engaged suspicion that Michael was sonable expectation respect to the justified placement activity in criminal automobile was substan- movements of his beeper. monitoring of the The actual tially reduced.14 beeper was much less installation of the B. Intrusiveness typical stop and frisk. intrusive than the restaurant pizza Michael was in the when Second, by the the intrusion occasioned place. took He was not installation great. was not placement of the he suffered no in questioned; detained or technically was Although the attachment 15 nothing dignity; from the interior ‍‌​‌‌​​‌​​​​​​​​‌‌​​​‌​​‌​​‌‌‌‌‌​​​​‌​‌​​‌‌‌​‌​‌​‍developed distinctions trespass, “arcane searched; indeed, nothing van seized or controlling. . .. law” are not was» permitted the removal even from the van’s exterior was removed. Supreme Court has Lewis, Cardwell v. at See paint scrapings from the exterior of an U.S. automobile, monitoring observing compre- subsequent fail to at 2470. The S.Ct. “[W]e in- Michael’s expectation hend what also did not violate beeper only fringed. simply, pri- expectation privacy. the invasion of Stated exist, performance vacy, agents it can said to is abstract aided the ‘if Air Pollution Variance their lawful surveillance.16 The van trav and theoretical.’ Corp., Board v. Western Alfalfa exposed public and was 416 U.S. eled roads 861, 865, 2114, 2116, Monitoring 40 L.Ed.2d 607 view. while the 94 S.Ct. Lewis, Cardwell (1974).” at had reasonable to believe 591-92, (1974). Similarly, conspiring to manufacture 94 S.Ct. at 2470 Michael was banc, en court, sitting po- has allowed MDA did not violate his fourth amendment open rights. vehi- lice officers without warrants argues sarily adopt reasoning with considerable in Smith Government so com- cogency governed pletely Smith v. that this case is as to find that the attachment and use Maryland, was free from fourth amendment Supreme concerns, Smith, case the L.Ed.2d 220 recognize we that under Mi- pen held installation and use of a Court register chael’s in this case was telephone company’s at the central of- slight. fice to record the numbers dialed the de- Ohio, 17-18, ex- fendant was not a search and violated no Terry supra, 15. See 392 U.S. at pectation privacy. at Id. 88 S.Ct. at 1877. telephone 2581. The Court reasoned that since convey the users phone numerical information to argument, 16. At Michael’s counsel called oral permanently company re- which can be our case attention to recent Second Circuit corded, they expectation have no reasonable Taborda, (2d of United States v. phone company would not disclose 1980). binocular-en Cir. Taborda held that police. those numbers to the Id. at viewing may of a home hanced of the interior S.Ct. at 2581-82. expectation violate a defendant’s reasoning is more The in the instant case even authority privacy. Although there exists some two-step straightforward; no disclosure is re- view, Hufford, opposite for the United States v. roads, quired. driving public In Michael denied, (9th Cir.), 539 F.2d cert. directly disclosing was his van’s whereabouts (1976); Unit L.Ed.2d to all law enforcement officials who cared to Grimes, (5th Cir. ed States v. 426 F.2d beeper, pen register observe. like the in The 1970), holding today does not contradict our Smith, That the facilitated such observation. viewing police Taborda. The in Taborda were beeper required DEA to make a home, observing open private into a pen register in technical unlike the public movements of motor vehicle slight physical controlling. Smith is not This Allen, highways. States v. 633 F.2d See United infringes priva- insignificant if it no intrusion is 1980). cy Thus, although not neces- interest. we do tracking device Interests electronic to Mi- Competing

C. chael/Thompson/Johnson’s van. This con- Third, govern we consider because, view, special my currence is illegal drug eliminating interest mental is Judge analysis improperly Ainsworth’s persuasive to to be a reason manufacture cast terms. in fourth amendment minimally practice.17 this intrusive permit than de- no more another response” based on An “intermediate some cameras, police. vice com- to aid Satellite cause,18 thing proper less is a than puters, microscopes, spectrome- and mass agents in investigatory tool to aid DEA highly sophisticated accepted ters are but discovering eliminating clandestine lab and to police tools can now use detect crime. balancing oratory operations. radios, radar, routinely helicop- Officers use beeper, to served use of the concerns ters, tags and quick-access files license drug manufacturing ap discover Michael’s and interdistrict infor- fingerprints, crime slight infringement against paratus exchanges performance of mation we privacy, find Michael’s Binoculars, night equip- their duties. vision eminently be beeper’s use to reasonable. ment, ordinary sunglasses even and We hold that the installation monitor eyeglasses may patrol- to enhance a serve no violation of ing involved to Yet ability suspect. man’s observe rights. amendment Ac Michael’s fourth systems most intrude of these devices reverse the district court’s cordingly, we pri- into areas of citizens’ lives that were suppression of the evidence seized at the day mag- vate in the deerstalker and warehouse. used nifying glass. They permitted are REVERSED. society police to be used because wants the They function to be efficient. are needed BROWN, Judge, R. Circuit concur JOHN police protection abreast of criminal keep ring: cunning taxpayers. affordable Although categorically I would hold Requiring the fourth amendment’s war- fully I not a or seizure concur search every used or procedure rant excused opinion and all but the Judge Ainsworth’s are policeman’s time senses abilities paragraph the first last sentence of mechanically electronically enhanced opinion. Judge Charles Clark’s needlessly. would diminish their usefulness should be reserved fourth amendment CLARK, Judge, with Circuit CHARLES explicit protection for its instances when TJOFLAT, HILL,* GEE, whom HENDER “against unreasonable and sei- searches * REAVLEY,* Judges, SON and Circuit truly Calling attach- zures” is involved. concurring: join, specially ment of a to an automobile a search Judge I concur in Ainsworth’s reversal of is nei- creates confusion at the outset —it district of evidence. I important- court’s exclusion ther nor a seizure. As a search holding concur that no invasion ly, extending illogic exclusionary also in his constitutionally protected privacy (which punishes society oc- rule the trans- degree police gressions police) with the of rea- non-search curred when errant puts pressure suspicion present here attached an situations undue on courts sonable between, hand, deterring crim must be struck on the one may properly inal be balanced of official intrusion into an individual conduct level and, hand, privacy privacy an individual’s interests fourth on the other See, Wolfish, g., by Bell v. amendment cases. e. to be intrusion. interest served such an 559, 1861, 1885, 991, 1977). 6 441 U.S. 99 S.Ct. F.2d (1979); Brignoni States v. L.Ed.2d 447 Ponce, United Williams, supra, 873, 878, 18. Adams v. 407 U.S. at (1972). (1975). United 45 L.Ed.2d 607 States Himmelwright, this court stated: * Hill, Reavley, Judges, Henderson and Circuit in the fourth amendment “[R]easonableness” fully majority opinion. also concur in the always depends upon sense a balance which sory right right at issue—the in his own under infringe core by circumstances self-determined the exec- Where no search or seizure is privacy. to agents affording utive as them reasonable involved, abridgment right of the police trespass might lead that their should rectified as other similar privacy of law violation. them to information through infringements constitutional are— against the errant officer. private a action majority, With deference to the this hold- ing governmental agents may invade TATE, Judge, Circuit with whom KRAV- private person’s property by or use a a JOHNSON, Jr., ITCH, M. POL- FRANK trespass truly of statute is violation sub- ITZ, HATCHETT, RANDALL, THOMAS protection versive of our Constitution’s WILLIAMS, A. CLARK and JERRE S. Cir- rights private property against intrusion or join, dissenting: Judges, cuit taking agents by except executive as autho- is, Sitting en banc in mini-convention by legislation.1 rized valid It of course appellate judges, majority (in view), twenty-four my great princi- a violative of the that an individual ples incorporated Rights our court has decided in our Bill of living every living under has no reason- under our our Constitution individual Constitu- protected arbitrary such as tion is intrusion able would by government upon per- of his protect trespass upon prop- him from a his sanctity property. son or the of his erty by agents, trespass that enables them to maintain continuous I. electronic surveillance over his movements twenty-four per day continuously majority opinion, hours and As I read the it does not act, indefinitely. (as court) The same if question committed found the trial private person, subject person would required no circumstances the im- liability. majori- to criminal civil beeper, mediate installation of the and it concedes, ty contrary every circuit that has con- further grudg- albeit somewhat — that ex- sidered issue—has determined that the ingly, unauthorized attachment of agents government may, ecutive to the exterior of the automobile authorization, legislative judicial without meaning is a “search” within the Amendment,2 ignore proprietary posses- an individual’s Fourth perhaps a concession that, suggested following 1. It has been rather than leave observations are the writer’s 2. personal by any judge necessarily the installation of a to untrammelled views and are not shared discretion, executive the sensitive values at is- who concurs in this dissent: may by legislation expressly sue authorizing best be served there, Although yet jurisprudential is as little such an executive under support vidually position, for the the writer would indi- conditions, subject prior judicial limited as- agree Judge tend to with Charles Clark necessity judicial subject sessment of its special actually in his presented concurrencе that we are extent, supervision of its duration and similar protection with a Ninth Amendment legislation regard to tapping. enacted with to wire- right person of the individual’s of his See, Note, g., Tracking Beep- e. Katz: protection property against of his unau- ers, Amendment, Privacy, and the Fourth government. thorized intrusion legislation, Yale L.J. Even absent such Michael, opinion, See the United States v. indicated, appeals in this court have some However, (n.10). 622 F.2d at 148 concurrence, unlike the courts, regarding district the installation of a the writer believes that the Ninth “search”, judicially as a have authoriz- protection priva- Amendment cy of an individual’s upon showing ed the installation private property constitutionally re- record, present quires cause. Id. In the securing the matter of magisterial no less cause and magistrate oversight through a warrant from a was dis- a warrant than the Fourth cussed the law enforcement officers Amendment “search”—without the rather tor- Attorney’s necessity articulating the United States office at a time tuous the Constitu- sufficiently application in advance of the actual installation tion’s in terms of an unreasonable warrant; “search”, permitted historically as to have issuance of as the Court and consist- are, done, my opinion, implications ently panel opinion, there has see 622 F.2d at sought record be- that the warrant was not judicially-required quarters, cause of the absence of the probable In some it is at the fashionable decry exclusionary cause. moment to rule and its governmental virtually theory encе of that juris- the unanimous an indi- arising from and, indeed, right could property the vidual’s to his be sub- such prudence to effect3— need dispute place- ordinated to the executive’s for it government does that (quartering troops, example). It beeper is considered a “search” re- ment of the sanctity of purposes. peatedly recognizes private The ma- the for Fourth Amendment governmen- property against unauthorized jority private states that because the then trespass taking. Supreme tal use or or was an automobile and property searched States, of the illegal trespass interpreter exterior Court the United because the its intrusive, never, constitution, in the had of that has the utili- minimally was defendant expectation expectation privacy zation of the “reasonable such insufficient test,4 recognition agents only privacy” deviated from governmental that were not the pro- war- the fundamental Fourth Amendment requirement relieved of the obtain a judicial supervision proprietary rant before in- tection of or inter- possessory under a private in be it a stalling beeper, they property, building but also that could est or a vehicle, as shown. Nor do merely opin- do so on reasonable that will be its objective engaged disregard was in ions possessor the vehicle’s crim- warrant line rights begin, where activity. property marking inal The fundamental basis for objective beyond is that majority’s private govern- view minimum area which rights are more or less irrelevant ment cannbt intrude without property authorization exigent circumstances, determining in whether or and the substitu- property agents may princi- search his tion of a standard to be instead evolved —the trespass according judges which this pal criteria is tested to the notions of of a is, instead, judges reviewing given place whether the time of the privacy to be (based private in possessor property. the action determine the ultimate accorded the views) judge’s subjective that attempt In Part IV below I shall to dem- property victim was whose searched had onstrate the authorities relied upon by subjective objective himself and an both not be should construed to expectation privacy. support its propositions: govern- A. that itself, moment, mental no particularly trespass Constitution is of even adopted Rights, though the Bill was at a time has a proprietary defendant searched, was experi- possessory property when fresh in men’s minds interest in the alleged letting go original opinion, illogic free 3. See criminal United States v. However, Michael, 1980) constable blundered. because the exclusionary rule is the law of the land as 749. enunciated that Court which our Consti- Further, ultimately tution is enforced. I would privacy” “reasonable test say all the venture to ing defects aris- adopted by Supreme the United States imposition by application, its from its States, Court v. United Katz improved compliance by greatly Court has ex- (1969), 19 L.Ed.2d 576 which in mandates ecutive with the of the Consti- eavesdropping, volved electronic broaden exclusionary Mapp’s tution. enunciation protection the constitutional of individual liber recog- penalty for violation of constitution ty search, against governmental electronic private nized action an victim of depended upon which theretofore had whether provided practical search no unconstitutional remedy panel opinion, had See occurred. Mapp, was no at all. Before there majority incorrectly 622 F.2d at 748-51. The relies compliance effective sanction to enforce upon the Katz test to limit constitu mandate of the Fourth constitutional protection tional pass, victim accorded a of a tres Amendment, applicable by virtue the Four- presumed upon reliance Rakas and its well teenth to state officers as as federal. progeny inapplicable decisions that involved — rule, exclusionary be- Without the the courts nonexpectation person in a with complicitors come of law in unconstitutional actions any proprietary possessory out interest in enforcement officers result con- searched, Part IV A this see victions, although perhaps tut-tutting like Pon- opinion, infra. these, tius Amendment violation should likewise For reasons such as a Ninth Pilate. implicate exclusionary rule. expectation privacy so, a reasonable doing of exterior of his automobile. In because the by the sole measure which to test wheth- majority inferentially is at least admits government’s private the intrusion on expectation er the defendant’s reasonable of unreasonable; is B. privacy that an indi- have been if would violated the no expectation privacy beeper placed, by vidual has in the a momentary had been automobile, door, interior, of his even insofar a trespass exterior the in the opening trespass providing say continuous indefinite under seat of the the vehicle. surveillance; that, C. because of the would then have Constitution been offend- enforcement, government’s in law by placement beeper ed the of the terior, suspicion although reasonable alone—without a war- vehicle’s in conse- the to quences rant circumstances—suffices sur- of continuous indefinite justify governmental pri- trespass such a invasion of more than if veillance are no the so, property. doing vate Before in Part III the had instead concerned vehicle’s exteri- point shall out of the protection the nature invasion or. The does not Constitution’s implications majori- and some of the depend type trespass on line of the a fine ty’s justifies present rationale that war- that is so to the free- irrelevant individual’s suspicion rantless invasion on reasonable dom from unauthorized inva- alone, sion; I briefly and in Part will illogic III summa- of an interior-exterior dis- radically majority’s rize how different is the through upon tinction reliance il- Cardwell approach every inapplicability from that of other circuit lustrates the of Cardwell to approached us, has issue before us. determination issue before which generically

concerns a different situation. II. However, if faced the installation of a vehicle, judiсial limiting beeper Without authorization perhaps its inside the the ma- duration, that, all, jority might say the attachment of a after to an well their permits of view tracking automobile electronic the individual had no ex- reasonable violated, twenty-four per day pectation its movements hours indefinitely. being momentary. majori- The automobile is tracked intrusion so goes, ty’s wherever it it reasoning quan- whether within the con- has made the —once private leap gov- fines estate or on the tum made holding it has streets, visually justified whether trespass observable from ernmental reasonable public place The trespass may or not. alone—could well such support momentary placement, in initial but its result. con-

sequences are continuous and indefinite. Indeed, examples given the de- stated, opinion As this intrusion grees justify intrusion that “generically different in de- protec- less than full Fourth Amendment gree type and kind” from the of warrant- body tion—an intrusion into the human ver- justified, less intrusion heretofore such as frisk; sus stop ransacking of a opening a car see door to an identification suspect’s house versus an examination of an number, Johnson, United States F.2d automobile to determine its identifi- vehicle 1970) (en banc), scraping cation number—are indicative that the ma- from paint already previous- an automobile jority may willing well be to remove Fourth e., impounded (i. ly lawfully seized in its protection Amendment installation entirety) by reason of cause and beepers more to far than the exterior of exigent circumstances, Lewis, Cardwell v. majority’s analysis automobiles. The 2464, L.Ed.2d 325 rationale, me, equally sup- it seems could port momentary and unobtrusive at- Cardwell, upon coat,

The majority relies which tachment suspect’s of a generically type concerned a different sipped while it a coatrack was on as he trespass, possessor (when, facts, hold that had no coffee the present under as to installing were instead principles. attempt I will IV infra parked coffeeshop). Part his van outside majority’s how each of the demonstrate Again, analysis and rationale could easi- upon postulates jurisprudential based are implacement of ly support the unobtrusive expressions arising fundamentally in issues suspect’s a shirts and suits when a different from that now before us. (or laundry cleaner even on a at the or home). line outside his clothes majority's resolution of the sensitive totally before differs complex ‍‌​‌‌​​‌​​​​​​​​‌‌​​​‌​​‌​​‌‌‌‌‌​​​​‌​‌​​‌‌‌​‌​‌​‍and issue us it) possible (but is I doubt that the It ap- any from of circuit that' has that governmen- such majority permit intends to proached original opinion in it. The test by limiting its tal surveillance activities the some summarizes views and hold- detail use government’s pri- unauthorized of the ings of circuits. 622 F.2d 747-48. other property to continuous elec- vate maintain majority only glancingly The en refers banc only by degree surveillance the of tronic decisions, very these real ignoring the deciding judges and what the intrusiveness expressed by Fourth Amendment concerns suspect’s expec- to be the reasonable deem majority ignores them. likewise the privacy. (These examples, tation of after holdings of decisions rationales and these all, intrusions, the govern- minimal and are circuits, to- exception other which without person could follow him as visually ment tally the used the conflict with rationale vehicle; and, similarly, beep- well as his the majority present Fourth repeal in its of location, the only suspect’s er tells so there- application Amendment the installation right does the privacy fore what of individ- beepers private of automobiles. violated?) These have that is illustra- ual type trespass-based continu- panel opin- tions of I will here reiterate not the government up to opened analysis ous surveillance ion’s the decisions more detailed of illustrate, majority’s rationale I Generally, they of other circuits. do but, regard intentions in- hope, majority’s not the not electronic surveillance itself of stead, in its on road or analysis: a fundamental defect vehicle or aircraft airspace invading any expec- assumption momentary initial reasonable that the (although an tation draw the privacy automobile some exterior line in the individual’s inso- from the favor of separated can somehow be contin- through far as electronic evidence located electronic surveillance uous and indefinite continuing prem- private surveillance inside it, determining possible by whether made ises). individual’s has been invaded actions of ex- With regard placement to the initial agents legislatively judicially ecutive private a vehicle or other beeper on authorized. however, (the only prоperty, one circuit First) required held no warrant is has that vehicle; III. upon for a never- installation but requires theless circuit the existence of that majority’s concludes rea- opinion that prerequisite installa- probable cause as a governmental sonable entitles Moore, beeper. tion United States beeper upon a agents private to install a (1st 1977) (holding Cir. addi- automobile, and irrelevant lawful- however, tionally, with a warrant cause, implacement are ness of the required is to insert a cause warrant, necessity home). in a container to be carried into circumstances. The concludes may do so that executive without suspi- No circuit has held that reasonable authorization, judicial legislative or justify cion of a may alone installation opinion its cites ex- doing persuasively so the con- private without prior cerpts principles jurispru- posses- from person proprietary sent interpretations effectively sory All circuits other dential therein. departure upon that have touched majority’s cloak the radical from than the First (the Sixth, Ninth, Eighth, issue previously Fourth Amendment accepted nature of the ing the intrusiveness and Tenth) expressly held that have either pri- invasion of of a unauthorized required for attachment warrant Bailey, competing inter- 628 F.2d beeper, United States property, vate considered Its 1980),5 or have so in law enforcement. government est of issue), in circum- from reserving the that issue differs (sometimes bland resolution obtained arising displays when evidence none stances circuits and that of all other ad- has been through electronic surveillance expressed by their concerns judicial authorization because mitted either other decisions of (and indeed the decisions been secured had first for the installation approached the com- circuit) have beeper, United of the placement before Amendment Fourth plex and sensitive Chavez, (10th Cir. v. 603 F.2d 143 States and indefi- raised continuous problems Pretzinger, 542 F.2d v. United States 1979), of individuals surveillance nite electronic (9th 1976); else because either Cir. or 517 property, placed private on through beepers exigent circum- cause and both not, or “because with authorization or placement beeper of the justified stances the ad- step in represents another beeper placement on the the initial else future,” Bailey, an vance toward Orwellian person consent of a with with the was made (concurring opinion, supra, 628 F.2d at 947 in the possessory interest proprietary or a Keith, majority opinion’s J.). Surely, the (find- placement of the property at the time concerns ex- indifference to make, no war- unnecessary to if indeed ings every other decision pressed by almost required). rant is issue, as well as the has touched Eighth United States v. (cited in Circuit: of the issue See: scholarly discussions Bruneau, (consent); (1979) 594 F.2d 1190 but not referred to panel opinion Frazier, 538 F.2d 1322 v. United States insensitivity majority), reflects exigent circum- (1976) (probable plus cause principles as Fourth Amendment values v. United States Ninth Circuit: stances); previously understood. Bernard, (1980) (consent); 625 F.2d 854 IV. Dubrofsky, 581 F.2d 208 United States v. Miroyan, v. United States

(1978) (consent); quotations majority has extracted United (consent); (1978) F.2d 489 577 involving to- principles from decisions Curtis, (1977) (con- v. 562 F.2d 1153 States to reach its novel tally different concerns Hufford, 539 F.2d v. United States sent); indefinite and continuous conclusion (1976); Tenth Circuit: United States 32 is private property executive on (consent); Clayborne, 584 F.2d (1978) 346 agents’ rea- upon the executive permissible Shovea, United States v. alone, the absence despite sonable (1978) (probable plus cause circum- judicial legislative valid or authorization stances). Upon juris- trespass. analysis, such for ap- support for this conclusion prudential the issue before us majority resolves proaches nil. weigh- concerning only relatively easy 1980) (where Bailey, was 1388 a warrant initial attachment was made 5. In monitoring pos- government’s after initial obtained to authorize drum while the was prior Nevertheless, placement to the defend- held the Sixth Circuit session. goods): possession “The installa- after ant’s that the continued electronic surveillance possessed goods physically posses- passed tion of a into the defendant’s the drum might a Fourth required invade on the defendants sion a warrant founded test, thereby even if the Amendment cause. The evidence suppressed, discovered right arguably though is a were never activated. There a warrant had been even possibili- secured, enjoy goods place to ty without did not a time limit the use because it monitoring an unactivated of uninvited the surveillance. beeper would create.” circuit, being placement In this the initial lawful, generally support a the decisions would said, alleged to have оnce 6. H. L. is Mencken proposition need- that no further warrant was usually problem, every complex there is “For opinion, 622 F.2d at 746-47. ed. See But cf. United States v. usually wrong.” simple it’s answer—and Lewis, 621 F.2d

265 Illinois, 128, 143, Expectation of Pri- law.” Rakas v. The “Reasonable U.S. A. Trespass irrelevant vacy” Test: 99 S.Ct. L.Ed.2d [58 387] possessory Instead, protects where the defendant has a the fourth amendment proper- proprietary legiti violations of their individuals from ty? expectations of priva mate id.; States, cy. See Katz v. United that, Fourth holds for U.S. 88 S.Ct. L.Ed.2d [19 it is purposes, irrelevant Amendment J., (1967) (Harlan, concurring); 576] agents was search States, 493, 498, Jones v. United trespass upon private accomplished by 1253, 1256 L.Ed.2d [2 1514] possessory he had inter- property which (1958). Expectation analysis est, though by reason of the subse- even especially like the appropriate cases continuing trespass government quent one instant which involve an individual’s surveil- maintained a continuous electronic rights respect to an automobile. In movements, thereafterwards on his lance Lewis, 583, 591, Cardwell could have been main- surveillance that (1974) L.Ed.2d [41 325] duration. The cen- tained an extended (plurality Blackmun opinion), Justice majority’s premise error is its tral in the stated, Fourth as Amendment “[I]nsofar as lib- ignoring irrelevant fundamental vehicle, protection to a it extends motor free of erty owning private property of right is the that is the touch intrusion, a governmental unauthorized our inquiry.” stone of especially in right fundamental enunciated “reasona- Rights. Adopting the Bill of at-, op. sl. at 255-256. -F.2d test, expectation privacy” ble of the owner greаtly cited arise authorities in dis- proprietary possessory or interest tinguishable sup- circumstances and do not private property constitutionally is entitled port majority’s conclusion the own- that expect govern- executive that private may property reasonably er not trespass upon property will ment not his expect governmental agents that will not not, by without and will con- authorization without upon authorization intrude his tinuing trespass, property use his property. demonstrating, Before so how- upon maintain electronic surveillance his ever, following: “per- I observe the A. The movements. provisions tinent” Fourth Amendment are majority’s holding The heart are only excerpt majority not cited opinion: following statements from its concluding (as also the clause but in- requires that, terpreted) other than in clear- amendment, pertinent fourth exceptional delineated not houses, ly circumstances protects “persons, part, people’s or presented, here no search seizure shall be effects, papers, against unreasonable and except proba- upon made warrant issued Although origi searches and seizures.” cause;7 We are not ble B. here concerned nally protecting property viewed as individuals, any Rakas as in with “arcane distinctions rights Supreme Court and tort developed property fourth law between rejected has now idea that licensees, invitees, like,” coverage guests, turns on “arcane amendment 143, . developed (fleshing . . at at 430 out the propеrty distinctions U.S. S.Ct. occurred, provides property in full: of the defendant’s own it 7. The Fourth Amendment controlling does not even to the constitu- refer right people in their to be secure interpretations con- tional that “the most basic houses, effects, persons, papers, area is ‘searches stitutional rule in this seizures, unreasonable searches and shall judicial process without conducted outside the prior approval by judge magistrate, issue, violated; no shall but and Warrants per or are cause, upon probable affirmation, supported by or Oath se under the Fourth Amend- unreasonable describing particularly subject specifically only estab- to a few searched, place persons or to be and the ment— lished and well-delineated exceptions’.” Cool- things to be seized. 443, 454-55, idge Hampshire, v. New majority’s A central technical error in the that, 29 L.Ed.2d 564 opinion having search is conceded that a legitimate expectation in the search of the catch-phrase quoted by context majority), but instead with a fundamental no they possessory automobile because had guaranteed liberty of individual attribute property or proprietary Constitution, e., ownership i. by our person aggrieved by “A who is searched: gov- private property free of unauthorized illegal only through search and seizure ernmental intrusion. damaging the introduction of evidence se- person’s prem- cured a search of a third support cited do not The authorities any ises has not had of his Fourth Amend- person conclusion of the that а rights infringed.” 439 proprietary possessory with a interest in ment U.S. complain (italics supplied). vehicle cannot of a search a motor S.Ct. at 425 trespass founded on a person The Court thus held that a with- deciding agents, judges may when the de- proprietary interest in possessory out a expecta- termine he had no reasonable property may legitimate expecta- have no tion of because the nature of his tion of that is offended a search automobile) property (an and that the in- in violation of the Fourth Amendment. degree (attaching trusion was minimal in doing, rejected sug- so the Court the test exterior). beeper to the States, gested in v. United Jones Katz, (see previously noted note 4 su- any 4 L.Ed.2d pra ), disregarded ancient niceties of tort or “legitimately person premises” that, despite law to hold the ab- aggrieved by an unlawful search. It (the previous sence of a determi- note, however, important reject- that in violation), nant of a Fourth Amendment overbroad, ing the Jones test as Rakas ex- person telephone in a booth had a reasona- pressly repeatedly explained ap- privacy against ble electronic proval the result in the decision—the evi- eavesdropping. It was not intended to and suppressed, dence Jones was it hav- it did not alter the basic Fourth Amend- ing apartment, been seized in his friend’s to protection against trespassatory ment key which he had a and for use of which he private property by governmen- searches of permission legiti- had based on Jones’s —аs agents, concept tal a basic not intended to expectation privacy premises mate of in the (see below) by be altered Rakas insofar at arising possessory searched from his inter- least as trespassatory complained searches 140, 142, 148, est therein. 439 at U.S. by possessory of a defendant with a or 429, 430, S.Ct. at proprietary property original panel opinion, searched. also See may authority proposi- Rakas for the 622 F.2d at 749-51. possessory pro- tion that one without a or prietary property interest in searched has probable Jones held that cause is not suf- expectation privacy no reasonable of that is residence; ficient reason to search a a war- simply authority offended. It is not for the rant also must be secured. I can find noth- non-sequitur property with that one such ing language holding supports in its or expecta- has no interest likewise reasonable Rather, majority’s conclusion. if any- And, indeed, privacy. tion of Rakas went thing, supports it the dissenting view. pains contrary quite plainly: to to state the Rakas, course, primary of is the authority Legitimation expectations privacy of of majority’s view. Rakas for does enunci- by law must have a source outside of the “legitimate expectation privacy” ate the Amendment, by Fourth either reference primary by test as the criterion which to personal property or concepts to of real determine Fourth Amendment violations. recog- understandings law or to that are The issue before the court was whether a permitted by society. nized and One passenger mere in an automobile could com- attaching property is rights the main plain of evidence seized an unlawful others, W. Black- right to exclude see holding search of the automobile. The core Commentaries, II, I, stone, Book Ch. passengers was that the defendant had no Does an lawfully possesses any or B. individual have one who owns reasona- expectation privacy ble is of- will likelihood property in all controls meaning fended within the expectation privacy legitimate have a a trespas- Fourth Amendment when right of this to exclude.8 virtue satory of his search is made vehicle’s (n.12). at 431 exterior in order to afford continuous majority cites Cardwell Finally, surveillance indefinite duration of authority is not for the The decision Lewis. his thereafterwards? movements violation of a non-owner- proposition that concludes that the momen- ship interest alone raises Fourth tary trespass committed the installation implications regard to the Amendment person’s on the exterior of a The ultimate of a motor vehicle. search automobile, following purposes for his police issue involved whether there thereafterwards, movements does not of- secure war- required were an additional any fend paint scrapings

rant take from an auto- our Part recognized by society. In II of dissent, lawfully seized and I have what I view previously mobile noted to be considering analysis an erroneous exigent for cause under searched momentary trespass only privacy as the in- circumstances, they when had been entitled subsequent than vasion rather also the con- car for these same reasons to search the tinuous electronic surveillance unrestrict- plurality itself street. The duration, unauthorized judicially ed and not (there opinion of the Court were four dis- supervised. Part IV A I judicially have one concurrence that did not senters and view majority’s noted what I to be the error merits) that, held under those reach the disregarding as irrelevant Fourth circumstances, taking paint purposes trespassatory Amendment in- upon probable cause did scraping founded vasion executive of property in any Amendment violate Fourth possessory pro- which a defendant has is certainly The decision not au- interest. of a prietary right interests —the violation proposition that executive thority for privacy against government with re- agents may, without warrant or privately owned that gard is not circumstances, commit a cause — only guaranteed by reasonable but is also trespass upon pur- a motor vehicle for the in B My purpose our Constitution. below is pose securing IV B infra evidence. See briefly inapplicability to note the the for extensive discussion of more Cardwell. majority’s authorities from which the novel the Fourth view is derived. summary, upon In authorities relied Amendment by majority, singularly either or in com- the principally rely seems to bination, support do not its conclusion that expressions upon in United States Chad- ownership right one with an in a motor wick, 433 97 53 S.Ct. L.Ed.2d any legitimate expec- vehicle does not have (1977), language ‍‌​‌‌​​‌​​​​​​​​‌‌​​​‌​​‌​​‌‌‌‌‌​​​​‌​‌​​‌‌‌​‌​‌​‍and holding by tation of is offended a Lewis, Cardwell S.Ct. investigatory trespass upon warrantless its (1974), 41 L.Ed.2d and in the agents. executive by holding exterior of this court in United States v. continues, pro- 8. Id. ence or absence interests The Court by tected that Amendment. No better dem- Expectations privacy protected the proposition of this onstration exists than the Amendment, course, not be Fourth need States, decision in Alderman v. United based on a common-law interest in real or (1969), U.S 22 L.Ed.2d 176 personal property, or on invasion of such the where the Court that an individual’s held (cid:127) rejected both an interest. These ideas were property interest in his own home was so Jones, Katz, supra, supra. in But great object as to allow to him to electronic priva- focusing legitimate expectations of emanating surveillance conversations from cy jurisprudence, the in Fourth Amendment home, though even was a altogether his he himself use of Court has not abandoned party property concepts determining pres- to the conversations. the that, may easily be read to hold 1970) (en decision Johnson, F.2d 441 cause and exi- decisions, opinion, probable was my where there banc). Of these the issue be- the vehicle at relevant to search gent latter is circumstances only the holding that its narrow seized in its entire- lawfully us—and was fore the time it by the is not violated prob- Amendment paint Fourth then the removal ty, officer to by police of a car door opening required by Card- (specifically able cause that he of a vehicle verify the identification did not offend well) impoundment after stolen to believe was cause had reasonable Fourth Amendment defendant’s our guidance to afford much does not event, holding any Cardwell’s rights.10 egre- Here a much more decision. present scraping support cannot be said trespass was commit- gious and continuous by trespass of placement paint, let alone agents,9 they and here executive ted street vehicle beeper, upon suspicion to believe most reasonable had at with- suspicion alone and upon reasonable property they person on whose cause and exi- probable a warrant or out activity. engaged criminal trespassed gent circumstances. Cardwell, reading, likewise on casual quoted by excerpts from Chadwick so, not be Even if it would relevant. seems repeat the truism con- majority merely great authority because of persuasive expectation pri- cerning the diminished reasons to the issues. For dissimilarity of vehicles, and in the Chadwick vacy in motor noted, relevancy its I doubt support cited to the state- text the decisions present issue. of mo- warrantless searches ments concern holds majority, Cardwell As read cause, they upon probable tor vehicles paint from momentary scraping that a be- foreign to the issue arise in situations parked on the of an automobile the exterior holding in Chadwick fore us. The actual any does not offend public street suppression of evidence seized affirmed the passerby could privacy; any search of a the rеsult of a warrantless itself, same, By speak. do the so footlocker, itself although the footlocker (see II nature of the intrusions different although the lawfully seized and had been present con- supra) indicate that the would to believe that had cause governed by Card- tinuing trespass is not marijuana. Chad- footlocker contained However, point, the tech- more to the well. really provide any basis for wick does not upon occurred trespass in Cardwell nical holding; contrary. en banc to the lawfully impounded by the already vehicle however, Additionally, Chadwick contains exigent cir- cause with police of the historic eloquent a most statement cumstances, for these same a vehicle that im- the Fourth Amendment purposes of prior have searched police could reasons over executive searches pose judicial control impoundment lot. to its removal to the Johnson, police and Fourteenth Actually, unreasonable under the Fourth officer had 591, 94 permission wife to exam- 417 U.S. at from the defendant’s Amendments.” closely (italics supplied). at the and to look ine the vehicle more plate vehicle. See Johnson serial necessary ruling, this the As a antecedent to 1396, opinion, 1399 413 F.2d had been law- also found that the vehicle court fully impounded upon probable in cause and lawfully already im- been The vehicle had 592-95, circumstances, exigent 417 U.S. at 94 probable pounded by police cause and the for being ruling I its as S.Ct. at 2470-72. read exigent was The issue circumstances. that, police probable had the effect since additionally police have se- should whether exigent to seize and cause and circumstances taking paint scrapings before cured a warrant impounded they it car at the time search the had been removed The car from the exterior. street, they public a could also make from the street, any passerby where from the after examination of its exterior warrantless they momentarily touched could likewise have impounded it. See Chambers v. Mon- had scrapings. The court remove the vehicle to 42, 1975, roney, 399 U.S. 90 S.Ct. 26 L.Ed.2d these, as such held: “Under circumstances 419, majority this as the basis for cited exists, probable ex- a warrantless where cause holding. is not of the car amination of the exterior

269 6-11, helped police. if it It is true that ble at property. U.S. private of a search and seizure observations are of reasonableness 2481-83. These S.Ct. balancing to involve presently issue be- is sometimes said to the especial relevance court, in the intrusion where executive Government’s interest fore the en banc priva- interest in judicial against the individual’s legislative or autho- agents without formu- private property cy. But under Government’s trespass upon rization lation, balance the continuing an we are not asked to trespass maintain ignore competing simply interests but of a nature and du- electronic surveillance altogether. interest judicial supervision. the individual’s subject to no ration reaching In the conclusion that reasona- alone, suspicion without a Reasonablе C. agents may suspicion ble alone of executive circumstances, warrant or to install a on auto- entitle them agents in the in- justifies executive mobile, refer majority does not committed in- vestigatory of the Fourth Amend- requirement warrant an automobile stalling a rule that a ment nor the basic constitutional of continuous surveil- purposes for (which majority ad- warrantless search lance? was) per mits this se unreasonable and seen) jurispru- (as any will be Without justified falling within the few must be as foundation, majority concludes dential recognized exceptions. well-delineated See may justify alone Instead, supra. it contents itself note beeper upon installing a executive Wolfish, cryptic with a reference to Bell v. in which the defendant has a an automobile 1861, 60 L.Ed.2d 447 99 S.Ct. U.S. interest, purposes of continu- possessory for (1979)(the determination of Fourth Amend- duration). (of ous surveillance indefinite rights prison), ment of inmates of a United startling conclu- majority reaches this Brignoni-Ponce, 422 U.S. States allegedly by balancing the individual’s sion (1975) (quashing L.Ed.2d 607 complaint about the invasion of minimal unconstitutionally obtained evidence gov- privacy in his automobile of a stop obtained from a near the border eliminating illegal ernmental containing Mexican-appearing pas- vehicle drug Again, manufacture. the authorities reasonable sus- sengers, indicating but support the conclusion. cited do not reason would suffice picion for articulated momentary stop inquire for a as to the balancing argument place, In the first persons), and Adams v. identification of the government adopted would enable the Williams, 407 dispense with the Fourth Amendment war- (1972) (officer informed that requirements in L.Ed.2d 612 rant and cause suspect may conduct a limited involving all cases serious criminal is armed almost to believe cause search for arms if he has reason activity. requiring warrant) dangerous).11 in- (although required suspect no that the is armed and cited, beeper, the First indi- stallation of Circuit for the reasons The decisions Moore, supra, rejected parenthetical summary United States cated of their convincing balancing similar contention for holdings, simply regarded cannot be as au- reason, (citations omitted): thority 562 F.2d at the Fourth Amendment war- may be rant-probable requirements cause

Conduct which violates the fourth amend- dispensed with for installation of legal merely because it ment is not made so, tradi- were in what is in essence routine and helps ferret out crime. If that investigation. accepta- type would be tional of criminal any invasion of dor, 1978); United 11. The also relies for the reasonable Smith, 1977); (5th suspicion upon concern States v. 557 F.2d 1206 Cir. standard decisions that Himmelwright, expressly United States customs searches at the border au: 1977). traditionally subject by I see no reason to discuss thorized statute and inapplicability warrant-probable obvious of these decisions. Amendment’s 'to the Fourth requirements. United States v. Afana cause subject judicial supervision to no as to Conclusion of extent or the reasonableness its duration. requires The Fourth Amendment that no respectfully I dissent. therefore person or shall be individual’s except upon searched warrant founded GODBOLD, Judge, Chief with whom cause, upon probable a constitutional com- KRAVITCH, JOHNSON, Jr., FRANK M. rigorously exigent mand enforced absent RANDALL, POLITZ, HATCHETT, TATE, circumstances, traditionally recog- save in A. CLARK JERRE S. WIL- THOMAS (e. exceptions g., nized or circumstances LIAMS, Judges, join, dissenting: Circuit searches) border into which this routine jurisprudence I the established adhere to investigation criminal does not fall. The requiring search made with a that a majority concedes that there were no exi- upon showing proper warrant issued to a gent circumstances and that for Fourth magistrate unless there is cause purposes present implanta- Amendment plus circumstances.1 tion of the is a search. It neverthe- requires less neither warrant nor ground by new majority cut anal- cause, only suspicion by reasonable the ex- ysis way. They accept that runs this agents ecutive for the search these appropriate inquiry is whether Mi- latter, agents. legislative without legitimate expecta- chael’s or reasonable judicial authorization, committed their tions of were privacy Pursuing violated. by trespass search upon property in which inquiry they first conclude that Mi- interest, had possessory defendant privacy chael’s was diminish- trespass and in violation of state statutes.12 ed because a vehicle was involved and be- I support jurisprudential find no parked public place. in- cause it was in a Next terpretations majority’s for the they degree conclusion examine the of intrusion and the defendant had no reasonable ex- Having describe it as minimal. reached pectation in his vehicle and that preliminary prеdicate, these conclusionsas a the Fourth Amendment was not violated agents find that the had rea- suspicion these of the execu- engaged sonable that Michael was tive, which enabled them to maintain con- activity justified criminal and that this tinuous electronic surveillance placement (and of his move- monitoring) duration, ments completely of indefinite necessity without the for a warrant. The statutory judicial without authorization subsequent monitoring justi- is then further another,” place 3001(f). 12. The electronic surveillance took Law § enforcement offi- Georgia in violation permitted of that state’s civil and cers are to undertake electronic sur- providing pri- criminal statutes. Aside from only upon probable veillance cause and after damage vate action for violation of the “abso- application approved judge written right” enjoyment personal lute private of real and court, provided speci- state circuit the warrant 105-1401, property, Georgia § Code used, particularity fies with the devices to be 105-1406, 105-1703, Georgia provides see §§ purpose, and the duration and circumstances of as well as other penalties (not severe criminal less than one nor permitted, specifics. use years penitentiary imprison- more than five ment) 3004. § Evidence of this nature is admissible in privacy through for invasions of unau- only conformity state court if obtained in thorized electronic and other surveillance. 3004(g). the statute. § Georgia, through §§ Code 26-3001 3010. any principle justifies I am unaware criminal, Among other activities made thе act judges federal to hold that without stat- federal prohibits any person going from “on or about utory or other authorization federal executive private premises any private of another or may upon officers their place purpose invading for the secretly observing alone violate state in order criminal statutes another ... their activi- ties,” 3001(c), using “any prosecu- obtain § or from instrument evidence use a federal apparatus, per- or sons another which occur in out of the committing “any without the consent of all tion. observed, to ... record the activities of exceptions any private place None of the other to the warrant view,” 3001(b), arrest, requirement, § or from as search such incident to arguably other acts of a nature similar is even involved. to those set out ... which invade the invading privacy inter- the end of the inquiry. Michael’s not One must also fied as not agents in only the against est because it assisted “privacy govern kind of ask what of lawful surveillance performance their Or, Supreme mental action?” in the public roads the van traveled and because phrase, “scope what of the Court’s is the public exposed to view. and was Wolfish, Bell v. intrusion”? 1861, 1885, L.Ed.2d step, the balance the the final (1979). only question It is is governmental public and interest in elimi- when drug manufacturing public we use nating illegal asked that conclude that intrusion and find that the “minimal” its exposure public of a vehicle and to view subsequent use installation and warrantless justify portions of searching do not interior of the were “reasonable.” plаin the vehicle not in view without either exigent or plus a warrant cause Supreme agree I that the Court has made applies to a suit same circumstances. protection legitimate or rea- clear movable, generally case. It is used in full proper expectation privacy sonable is the view, freely inquiry.2 public handled and touched personnel carrier common while the owner limited privacy Was Michael’s interest traveling by public transportation. is simply It is and the intrusion nominal? protecting There is no interest questions “all say an answer to these to against observation its exterior. But no every is an that is involved automobile and any longer seriously argues one pub body knows that automobiles are used qualities mobility public suitcase’s and “all the officers was to aid in licly,” and did police they exposure permit open what it without a finding out could have observed visually anyhow.” Usually, defining plus prob warrant or circumstances legitimate expec contours of or reasonable cause. able privacy, necessarily one con tation of must disingenuous It is both inaccurate corporeal sider the nature of whatever both governmental treat intrusion in this governmen item is involved and kind of transitory case as limited to mere is improper tal action that claimed to have by attaching de minimis committed ly invaded object to the significant a small van. The victim has in the item. It is obvious that an arises from capacity intrusion freely moves parks automobile to emit a signal small device that identifies and, public places open because it is police the location of the vehicle. The view, legiti has no owner reasonable or officers, attaching device, the electronic expectation that mate the exterior of report- the van into a made mechanism seen through vehicle will not be visual ob government ing to the its own location and Furthermore, servation. the owner has no occupy- necessarily persons the location of ing government, Michael’s it. without plate numbers on his license and the identi knowledge, consent made him into a post

fication numbers fixed to the door broadcaster of the details of his own af- stamped engine on the frame or on the government. fairs. The listener might A offi block. court well sustain an simple. damning. are signals they are But finger running cer’s his the side of a down This is far from minimal. It strikes at the publicly parked sample. car to collect a dust protection the Fourth heart taking The courts have even sustained person and his paint Amendment affords to the sample from exterior surface of a previously relationship seized affairs and effects in the be- impounded.3 car But tangible sovereign. signifi- the nature and use of the item are his This tween him and My approach Judge is different from that of invasion ex- of the individual’s only degree. pectation privacy. Tate —if different at His all— convincing emphasizes dissent invasion of Lewis, emphasize prefer 3. Cardwell v. while interests I L.Ed.2d office, to his and his transmissions cannot his van intrusion into Michael’s affairs cant electron- justified ground taped by system on the that thе the owner of the be could be automobile was attached to his charges ic device on a time compute in order to user interest in an automobile is privacy and the basis, might not be to com- Michael able strong.4 bug plain police put a at the owner’s if the headquarters pick up what Michael said government’s action comes Actually, the is not a over the air. But Michael subscrib- protected by on interests impinging close to service, the use of which er to a commercial government, Amendment. The the Fifth sense, physical giving up his interests. by trespass may minimal involve unwitting suspect to become a knowingly sending signals causes He is not even of information reporter government to the any anyone. kind to We view with incriminating to himself.5 through the car monitor- Surveillance of loathing systems require totalitarian ing properly the attached cannot be traveling place one to another person from justified ground merely on the this report on his police to check in with the visually could surveil the aids officers who trivial majority movements. The treat as visually Freedom to observe does vehicle. against one’s unwit- justify might other means that not of itself tingly continuously making the same but information. for no reveal the same If report through an electronic device kind of reason, beeper’s scope is wider other property by which he moves attached to the surveilling eye visually than the can ob- I this place place. from do not consider off if the van enters serve. It does not shut trivial. private property and leaves view so eschewing Significantly, while common longer be seen. It does not may that it no irrelevant, concepts as the ma- property law parks turn off when the owner the van in jority employ concepts these same to con- garage garage door to his and locks were clude that the officers’ actions here others, protect against entry by including minimal, merely transitory technical and police officers. If an officer broke into a trespass. majority In a sense the car and secreted himself in the back seat in property-rooted jus- are correct. But these order to find the car’s route destina- only story. tifications tell a fraction of tion, summarily reject argu- we would refer, majority pen n. to the constitutionally justi- ment act was that his register case in which installation and use might fied because another officer have company’s register telephone of a at the by following the same information obtained central office to record numbers dialed Moreover, the car. this “alternative availa- the defendant did not violate the Fourth bility” (a sort of first cousin to the rationale telephone al- Amendment because user discovery” rule) ig- discredited “inevitable ways conveys telephone company to the nu- nores the interest that one has be- permanent- that can merical information ing self-incrimináting made into a broad- ly company, recorded at the will of the caster of his own affairs. the user has no reasonable that reasonable standard telephone compаny will not disclose this activity justification criminal is a for a war- police. recorded information to If Michael newly rantless search is created in this case. were a user of a commercial shortwave system by support radio which he could talk from No case is cited to it.7 In oral Surely government dye a cam- 5. This is different from bait cannot attach bank’s photograph money. The bank robber has no inter- era to one’s bedroom window and justify ground est in the loot. it those inside and all made to see windows are visible to Maryland, 6. Smith 442 U.S. enjoy through privacy. The and thus no 61 L.Ed.2d protects people Fourth Amendment not chat- tels. part opinion the 7. In another Williams, refer to Adams v. government counsel were argument asked common occurrences and attempts inmate supporting supply theory. cases bring facility these items into the up nothing. could come with Counsel Sit- concealing in body them cavities were docu- ting power we en banc have the to create mented in unique the record. No such fa- subject Supreme this new rule Court cility problem is involved this case. But there be review. should some better only government’s interest in the end than the mischaracterization basis “balancing” to which the majority trespass, intrusion as nickel dime and refer drug special is that this is a case. No police trying the fact that the were to catch need was shown for the information sent drug illegal surely manufacturers. As as Indeed, beeper. grounds one of the rises, the sun will now majority justify governmen- which the urged justification as for intrusions that tal police action is that could have accept serious, even the would as essentially obtained the same information and searches heretofore barred by the by visual surveillance. urged Fourth Amendment will be as valid pursuit types

because done in of all of sus-

pected fact, criminal activity. In few any

searches are made for reason other attempts suspected

than to catch law violat-

ors.

In their point majority final hold that eliminating interest in il- legal drug manufacturing is to be balanced ARBROOK, Nappi, INC. and John J. Michael’s Plaintiffs-Appellants, if determine the Fourth Amendment has Justifying been violated. a search on the handy police

basis that it is for the is a new AMERICAN HOSPITAL SUPPLY COR- theory. country balancing is PORATION, Defendant-Appellee, magistrate’s done in the through office request upon probable for a warrant based Corporation, Tackmer cause, or under circumstances so Intervenor-Appellee. knowledge sufficiently strong that we No. 79-2652. dispense requirement with the of a warrant. Wolfish,supra, Bell v. held that body visual United Appeals, States Court of cavity prison searches in a could be conduct- Fifth Circuit. just ed on inmates who had had contact May persons prison, visits with from outside the necessity without cause.

Prison officials testified that the searches

were necessary only to discover but also smuggling weapons,

to deter the drugs

and other contraband into the institution.

The court dealt with what is called “a

unique place fraught with serious security

dangers,” smuggling in which of money,

drugs, weapons and other contraband were ‍‌​‌‌​​‌​​​​​​​​‌‌​​​‌​​‌​​‌‌‌‌‌​​​​‌​‌​​‌‌‌​‌​‌​‍(1972) justifying safety,” Ohio, Terry 32 L.Ed.2d 612 officer’s] under response” an “intermediate based on some- 20 L.Ed.2d 889 Proba-

thing less than cause. In Adams the ble cause then existed to arrest Williams for through possession weapon. officer reached the window of a car unlawful pistol present protec- and removed a loaded from the defend- case unrelated to the limited Terry. ant’s waistband. This action held valid as tive actions authorized under designed “a limited intrusion to insure [the

Case Details

Case Name: United States v. Barry Dean Michael, A/K/A Mike Thompson, A/K/A Mike Johnson, Defendant

Court Name: Court of Appeals for the Fifth Circuit

Date Published: May 11, 1981

Citation: 645 F.2d 252

Docket Number: 79-2679

Court Abbreviation: 5th Cir.