United States v. Ervin Charles Jones

ERVIN, Before HALL, Chief Judge, Judge, FABER, Circuit United States Judge District for the District Southern Virginia, West sitting by designation. by published Affirmed opinion. Judge FABER majority wrote the opinion, in which Judge HALL joined. Judge Chief ERVIN wrote a concurring dissenting opinion.

OPINION

FABER, Judge: District Ervin pleaded Charles Jones guilty to a single count of knowingly purloining an arti- cle of United States inMail viola- § tion of 18 U.S.C. and was sentenced to eleven imprisonment months’ and three unload the waited to workers where plea his Under release. supervised years’ reached Once Jones the trailer. ap- mail from right to reserved Jones agreement his truck and backed denying his ruling Estes Drive peal district building, post office ap- loading behind His direct dock suppress evidence. motion Be- completed. day were decision: for the for questions duties three presents peal post three between the declin- erred distance (1) cause the district whether short, usually finished allegedly obtained offices suppress evidence ing to p.m. 5:00 delivery duties loading service by postal from Jones (2) Amendment; the Fourth violation spring Saturdays in winter On four denying the court whether envelopes con- deposit 1992, postal service sentence, after in his reduction two-level $12,000 in approximately taining a total responsibility accepted finding that he reported $5,000 in checks were currency and (3) court crime; whether and his for pouches be- registered mail missing from calculations including in its post office Timberlyne the main and tween on which occasions prior four sentence Jones was Sat- Raleigh, North Carolina. post the same from stolen had been mail occasions. on each of these urday driver any of Jones’ merit Finding no office. each time his to mail access Because convic- error, his we affirm assignments of aas was identified Jones disappeared, and sentence. tion inspectors. On postal by federal suspect on the three 20, 1992, they had done as June I success, postal Saturdays without previous A transmit- electronic a small inspectors placed Jones Ervin defendant early to First envelope Citi- addressed ter an by a Saturday driver The employed as North Carolina. Raleigh, was Bank zens for holding contract trucking firm money, checks private also contained envelope Chapel inMail given to conveyance envelope was deposit tickets. Shortly Carrboro, Carolina. North Timberlyne who Station Hill supervisor Saturday, would Jones mail. Fol- p.m. registered each day’s 4:00 before in the placed it office post main en- van to personal his procedures, drive lowing normal Leaving his Hill. Chapel for pouch reserved Estes Drive in a placed on velope was lot, Jones parking building’s rear a wire seal in the and sealed with van deposits bank haul to used tractor-trailer The number drive the number. would bearing individual оffices. the branch waybill; Drive Estes from on a mail recorded seal ar- Jones would p.m. 4:00 seal approximately At the numbered way to remove Timberlyne mail truck with the pouch. rive cut it off load- Leaving the truck office. branch by the surveillance p.m., under At 4:25 rear of in the dock, wait often would he ing Timberlyne for departed inspectors, Jones postal workers office, chatting with post the Carrboro arrived at When he Carrboro. receipts and monetary they counted while as inspector watched office, post another in mail outgoing mail day’s packaged the the trail- into outgoing mail Jones loaded would postal workers p.m., By 4:30 sacks. inside lost view then er. Jones trailer into the mail outgoing loaded the minutes; he five approximately trailer for lock. trailer to the a wire seal attached balancing the had been that he claimed later post the Carrboro would drive then Jones inspector postal A during this time. load on workers being postal office. There sup- hearing on at the who testified had to Saturdays, Jones duty in Carrboro the other that on motion stated pression himself, retrieve seal the wire release load Jones he watched three occasions office post from within outgoing mail balancing task re- Carrboro, the atmail packages vestibule, sacks and the mail load thirty seconds. only about quired trail- trailer, in the the load balance into reattaching trailer and from the Emerging From Carrboro the seal. er, and reattach truck, seal, got into office, Jones the wire Estes Drive return Jones would around, turned it § headed for Estes pleaded guflty. He then Arriving Drive. p.m., about 5:00 a motion suppress filed the envelope con- parked the truck behind loading dock. taining the tracking electronic device as evi- watched, inspectors While the got dence, he out and contending inspectоrs’ had a brief conversation with a worker stop of his issuance the search standing who was on the warrant, dock. Jones then and the van search itself all violated walked building’s across the parking back lot the Fourth Amendment. Following an evi- personal towards his inspectors van. The dentiary hearing argument, and oral the dis- nothing hands, saw in Jones’ nor did see trict denied Jones’ motion from the place him anything in the van. As Jones Reserving bench. right to appeal the away, drove They followed. trial ruling on the suppress, motion to immediately began receiving customary pleaded Jones then guilty to the indictment high-pitched beeping signal from pursuant the elec- to a plea agreement. written tronic transmitter. post From the office At sentencing, the district court found that lot, parking Jones turned right onto Estes accepted Jones had not responsibility for his Drive. Shortly thereafter, he right turned pursuant actions to section 3E1.1 of the Unit- agаin onto East Franklin Street. in- ed Sentencing Guidelines, and that spectors briefly lost the sound of the trans- conduct relevant for sentencing pur- mitter when their slightly vehicle fell behind poses included the four occasions before June Upon drawing van. closer to the 20, 1992, on deposits which bank had been returned, the sound inspectors and the sig- taken from pouch mail origi- nalled stop. Jones to pulled Jones his van nating at Timberlyne Post Office. The into parking of a lot hardware store some thereupon sentenced Jones to eleven of a seven-tenths mile from the Estes Drive incarceration, months’ to be by followed a post office, and plaeed was under arrest. supervised term years. release of three inspectors The drove Jones’ van back to appeal This followed. Drive, Estes they impounded where it until a search warrant could be obtained. reg- The II pouch, istered mail containing only two of thе assignment In his first error, original three deposit envelopes placed it contends that the district court in de- by supervisor at Timberlyne, was re- clining suppress as deposit evidence the trieved from loading dock the Estes envelope containing the tracking electronic post Drive pouch office. The had been cut. device, because postal inspectors alleged- At 7:43 p.m. one inspectors of the presented ly envelope obtained the from him in viola- an affidavit day’s events to a North tion of the Fourth Amendment. Specifically, Superior Carolina judge, Court who immedi- (1) argues he that the inspectors’ use ately caused a search warrant to issue per- of an tracking electronic device to monitor mitting by to seize June the contents of his van constituted a search 1992, “registered mail belonging to the U.S. by (2) forbidden Amendment; the Fourth [Sjervice Postal addressed to First Citizens stop of his van was undertaken Bank Raleigh, Carolina, North an elec- probable cause, without rendering it a sei- tronic device[,j transmitting and U.S. Cur- zure in violation of Amendment; the Fourth rency and checks.” p.m. At 8:30 the inspec- (3) inspectors obtained the tors executed the search They warrant. search warrant on prob- insufficient indicia of found envelope containing the transmit- (4) cause; able that the search executed ter beneath the driver’s seat of Jones’ van. by inspectors pursuant to the warrant scope exceeded the warrant, B therefore constituted a generalized search 29, 1992, On June by proscribed indicted Amendment. We grand jury in the Middle District of North seriatim, address these contentions reviewing single Carolina on a alleging count theft the district court’s conclusions of law with United Mail States in violation of 18 respect U.S.C. to them de novo. See away rural nearly 100 miles cabin (4th Cir.), Knotts’ cert. 868, 873 Rusher, 966 F.2d kept track police a time — For Wisconsin. -, 113 S.Ct. denied, U.S. surveillance visual both the container (1992). dur- signals, but monitoring the device’s sur- journey visual part ing latter

A of Petchsen’s because was curtailed veillance signal from maneuvers. driving evasive approximately lost beeper was protects The Fourth now-stationary hour later An same time. their be secure people “right of the A Knotts’ cabin. signal was detected effects, against houses, papers, persons, days three obtained after U.S. and seizures.” searches unreasonable Conclud- surveillance. visual intermittent Const, capacity individual’s An IV. amend. no con- raises enhancement ing scientific Amend the Fourth protection claim surveillance visual issues stitutional right property upon depends not ment held raise, Supreme Court not also would per upon whether place, but invaded a ‘search’ monitoring “neither privacy expectation legitimate ahas son contemplation within thе nor a ‘seizure’ v. United Katz place. See invaded the surveil- because Amendment” the Fourth 507, 512, States, U.S. expecta- any legitimate not “invade lance did (1967). Amend The Fourth 19 L.Ed.2d Id. at privacy.”. tion of this protects ment certiorari granted Court Supreme It has intrusion. government against privacy 705, 104 Karo, in United pro security long established been (1984), to answer 82 L.Ed.2d un against by the Fourth vided in Knotts: unresolved” “left solely applies seizure and beeper falls with- a monitoring of “[W]hether v. Burdeau intrusions. government to Amendment the Fourth of in the ambit 574, 465, 475, 41 S.Ct. McDowell, 256 U.S. not that could information it reveals (1921); United 576, L.Ed. 1048 surveillance.” visual through obtained been 1652, 113, Jacobsen, 466 U.S. After at 3299. (1984). no is there If L.Ed.2d agent Administration Drug Enforcement a intrusion, Amend the Fourth government gallons fifty ordered that Karo learned implicated. not is ment extracting cocaine in ether, used to be the imported into clothing from obtained officials States, law enforcement turn to background, we this brief With authorizing the installation order appeal: wheth- by this presented initial issue tracking device monitoring an electronic an electronic use of inspectors’ er agents The ether. the cans of one contents monitor device tracking from ether can of retrieve Karo watched forbidden a search constituted van house, Karo to followed supplier, now, this cir- Until Fourth Amendment. beeper by using determined to confront occasion not had cuit has Subsequently, house. was inside ether such devices problems Fourth deter- agents beeper, the of the use through therefore, di- derives analysis, present. Our moved had been the ether mined rulings two Court’s Supreme rectly from houses, to a and then other two ‍​​​‌​‌‌‌​​‌​‌​‌​​​​‌​‌‌​​‌​​‌‌​‌‌​‌​‌​‌‌​​‌​‌​​‌‍succession subject. this Finally, one facility. storage commercial ether moved codefendants Knotts, Karo’s In United rented a house facility to storage (1983), an second 103 moni- beeper Using the codefendants. other inside рlaced was tracking device electronic determined authorities tor, enforcement law sold chloroform five-gallon container monitoring device containing the can to one company Minneapolis chemical by a a warrant house, and obtained inside the Armstrong. Arm- defendants, Tristón on informa- in part based the house to search codefendant container to strong delivered The beeper. of the through use it to tion derived Petschen, turn delivered Darryl who Supreme Court noted that it would be an than usual balance the load in trailer unreasonable search to surreptitiously enter at the Carrboro Post Office. Absent a residence without a verify revelations device, tracking they sim- there, the container was and then continued: ply way had no knowing that the transmit- purposes For Amendment, ter, the [Fourth] and the pouch stolen mail in which it was where, the result is the concealed, same without a might be inside Jones’ van. Ad- warrant, the Government surreptitiously missibility of the evidence which seized employs electronic device to obtain in- from Jones’ van and which convicted him of formation it could not have obtained the crime charged, therefore, turns squarely

by observation from curtilage outside the on the issue of propriety of the house. beeper agent tells the inspectors’ use of the tracking electronic de- particular that a actually is article located vice. particular at a private time in resi- dence and possession is in the per- We it mistake, believe would be a persons son or whose residence being and a misreading Supreme Court’s watched. if Even visual surveillance has guidance Karo, Knotts to analyze this revealed that the article to which beep- question solely in terms privacy of Jones’ er is house, attached has entered the expectation in thе interior of his van. own monitoring later only not verifies the offi- agree While we that Jones had a reasonable cers’ observations but also establishes that expectation of privacy in the interior of his the article remains on premises. van, we find government intrusion there. Id. 468 U.S. at 104 S.Ct.’at 3303. beeper planted van; in the was concealed The Court in a thus mail pouch affirmatively answered which be longed government it had Knotts, reserved in and which Jones holding had no that monitoring of privacy of a beeper falls whatsoever. within the pouch The mail ambit of the with beeper found its when it way into Jones’ reveals “a van critical fact because about the Jones stole interior” of premises pouch and hid it in could not the van have been himself. obtained through visual 715-16, surveillance. Id. at We do not believe that United States v. 104 S.Ct. at 3303-04. Karo, 468 U.S. 104 S.Ct. 82 Neither Knotts nor directly Karo resolves (1984), L.Ed.2d 530 compels the conclusion the presented by the appeal. instant that there was a search of Jones’ van. The Knotts, As was the in case postal inspec- the court in Karo recognized that concealment of tors’ use of an tracking electronic device personal property public from gives view rise following involved and in that to Fourth protections. But sense simply augmented their vision of Jones here, what was public concealed from view as he away drove from the post Estes Drive personal was not property, it was gov- stolen office. As happened Knotts, in the property; ernment government this stolen inspectors briefly sight lost of Jones as he property with its beeper concealed was in right turned onto Franklin Street from Estes van because put Jones himself it Drive. Yet knew the direction in which contrast, there. the beeper in Karo was he was proceeding, and presumably could concealed in a container of ether which the overtaken, have or at least pur- continued to purchased. defendant had At the times the sue him through visual alone, surveillance in container Karo was carried the defen- without the aid of the tracking device. dant house, into his own and from there to hand, On the other never places other of concealment, it was not con- saw place envelope containing traband; personal property belonging transmitter in his van. grounds Their sole to the defendant and in which he had a for suspicion (1) consisted of the fact legitimate that expectation of privacy. By hiding Jones had driven the mail on the other four beeper in Karo, defendant’s property in Saturdays deposits gone had astray; government committed an intrusion which is (2) and the fact longer Jones had taken absent present in the case. in existed which sion, very situation somewhat are factual situations While recognized Moore in Karo, other Karo. Thus predate different, the cases and facts in distinction between issues clear with confronted been have circuits present contain the circumstances packages Karo and in placed beepers volving Perez, situation in former case, holding v. In United States contraband. ing denied, the latter and in Cir.), search (5th illegal an cert. there is F.2d (1976), not. there is 97 S.Ct. (1st F.2d 887 Emery, 541 v. concurring opin- O’Connor, in her Justice Unit (overruled grounds, Cir.1976) on other Karo, Justice the Chief which in in ion (1st Cir. Miller, F.2d ed States present- problem very focused joined, Washington, 586 1980)), and United from its distinction bar case and in the at ed ap Cir.1978), courts F.2d in- interests Noting privacy Karo. illegal was no there concluded peals extremely are as these such in cases volved listening case, the because, in each narrow, follows: as she continued object con an in implanted had been device ownership of container who lacks [0]ne which substance taining a contraband container to move the power or the itself in possess right no had defendant expectation will, no reasonable can at expectation legitimate had no he which will the container the movements pre Karo from differ cases privacy. Those beeper within by a tracked not be Karo, defen case; in our cisely as does the contain- container, where regardless of a non-contra legal possession of inwas dant the absence In this situation moved. er is been beeper had object in which band container in the interest appropriate of an intru Karo an Thus, inwas there placed. in privacy expectation defeats itself in which into area government sion container, even when the movements legitimate had defendant places where brought into is the container original which occurred an intrusion privacy, intеrest. privacy may have others beeper in the placed agents ly when at 3307. pur agreed to Karo of ether container as that container continued and which bar, chase Karo, case contrast in to his house by Karo transported Washington, raises Perez, Emery and of concealment. places other there to agents hid- government disturbing specter Perez, in in absent intrusion A similar personal all sorts devices ing electronic case in the Washington and Emery, citizens following private and then property bar. they go about as property such who own presents such beepers placing This case between their business. distinction placed has Here, property government them placing danger. contraband may property. its own legal but device which is the electronic possession need fear discussed property was a crime of such Only purloiners in commission used (1st Moore, F.2d 106 562 consequences. adverse 926, denied, U.S. 98 Cir.1977), cert. postal conclude Accordingly, we (1978). indi The court 1493, tracking de- an electronic use of inspectors’ not does Fourth cated pouch mail movement monitor to vice beepers in contraband placing prohibit the ambit within a search constitute did not possessors “the because goods stolen Amendment. Fourth legitimate no have articles such no in substances privacy B 111. The at all.” possess right to proba- they share Because however, held, in Moore third second cause, review Jones’ we ble violated First, askwe together. error assignments of used in to be chemicals placed in beeper was stop of Jones’ inspectors’ postal which, in whether drugs illegal but manufacture cause, probable without undertaken van or themselves, contraband were by forbidden “seizure” rendering it a posses- in defendant’s wrongfully otherwise Fourth Amendment. Then we seek tо ascer- about to commit an Michigan offense.” tain whether the by warrant obtained the DeFillippo, 31, 37, 2627, 99 S.Ct. inspectors to search the van’s interior was (1979). 61 L.Ed.2d 343 This court has supported by sufficient probable indicia of explained that: cause. probable [Whether par- cause exists in a ticular situation ... always turns on two factors in suspect’s combination: the con- The Fourth protection Amendment’s of an duct as known officer, to the and the con- individual’s preserved “effects” is the re- tours of the thought offense to be commit- quirement that searches and seizures be con- ted that conduct. Probable cause pursuant ducted to a warrant issued by an therefore could lacking be given case, in a Const, independent judicial officer. U.S. ... either because anof ... officer’s insuf- amend. IV. One of the exceptions earliest ficient factual knowledge, legal misun- requirement recognized by the derstanding, or both. Suprеme Court was the excep- “automobile Alford, Pritchett v. 973 F.2d tion” at issue in this case. In the Prohibi- Cir.1992) (citations omitted); see Sevigny v. tion-era decision States, Carroll v. United Dicksey, (4th Cir.1988). 846 F.2d 956-59 69 L.Ed. 543 When the inspectors Jones, stopped (1925), the Court recognized that in- privacy they knew that he had been the mail driver terests an automobile are constitutionally on the previous four occasions when deposit protected; held, however, Justices envelopes disappeared had from the Timber- ready automobile’s mobility justifies a lyne Post Office’s mail pouch. degree lesser protection of those interests They also knew that Jones had taken some than would be afforded a stationary struc- longer what than usual balance the load in That ture. a motor readily vehicle is mobile the trailer collecting while outgoing mail not, however, does mean may at the Carrboro Finally, branch. they knew seized and searched upon pretext. a mere an electronic transmitter had been concealed As the Court Carroll, made clear in “[t]he pouch a mail originally in posses legality measure of of such is, a seizure sion —a transmitter which now sig emitted a therefore, that the seizing officer ‍​​​‌​‌‌‌​​‌​‌​‌​​​​‌​‌‌​​‌​​‌‌​‌‌​‌​‌​‌‌​​‌​‌​​‌‍shall have nal from private van, place where probable reasonable or cause for believing pouch mail legitimate right to be. that the automobile which he stops and seizes facts, These three viewed in combination, has contraband ... therein which being were sufficient to prudent warrant a person illegally transported.” Carroll, 267 U.S. at in believing that Jones was committing a 155-56, 45 S.Ct. must, therefore, 286. We crime when he away drove from the Estes determine whether postal inspectors’ sei- post Drive office on June 20. A suspect’s zure the van was supported by probable conduct, as known inspectors, cause sufficient to government enable the and the contours of the offense he was be invoke the exception. automobile lieved to have committed in past were is, best, cause Probable a nebulous hardly susceptible hypothesis. other concept. See Williams, United States v. Accordingly, we conclude (4th Cir.1992) F.2d curiam) (per inspectors’ seizure of Jones’ van sup- (noting that probable “[t]he cause standard is ported by sufficient probable indicia of cause not by bright defined lines and rigid bound to permit the seizure to fall within the auto- aries”). For Fourth purposes, exception mobile to Fourth the Amendment’s at least as such amendment relates to requirement. warrant arrest, probable cause means “facts and cir cumstances within the officer’s knowledge 2 that are sufficient to warrant a prudent per son, or one caution, of reasonable in believ The quantum probable of cause re ing, in the shown, circumstances that quired fоr a search warrant to be valid under suspect committed, has is committing, or is the Fourth Amendment is identical to

1313 627 2748, 2737, 49 L.Ed.2d 480, S.Ct. 96 a motor of seizure necessary for the quantum 485, 476, Texas, U.S. 379 (1976); v. excep- the automobile Stanford fall within to vehicle (1965). 511-12, 431 506, L.Ed.2d 13 to order In requirement. the warrant tion to in this ease issue at warrant search The cause, presented facts probable establish “registered mail of: the seizure authorized [per- a only “warrant need magistrate to ad Postal Service U.S. belonging that in the belief’ caution of son] Raleigh, of Bank First Citizens to dressed bewill crime of a or evidence contraband transmitting Carolina, an electronic North v. Texas searched. to be place in the found payable Currency checks 1535, and U.S. device 103 Brown, U.S. 460 The Service.” Postal or U.S. to Postmaster opin- (1983) (plurality 502 1543, 75 L.Ed.2d inspectors’ executing confines not warrant “does standard ion). cause probable The to allowing them seize be discretion a belief showing such that demand Thus, the crime. particular aof evidence than false.” likely true or more correct seized with to be the items describes warrant Court, Supreme decisions satisfy the Fourth particularity sufficient efforts, con recent more own as well our as Fawole, v. States See United Amendment. is “[g]reat deference sistently establish Cir.1986); (4th United 1141, 1144 785 F.2d assessment magistrate’s a given to be (4th Cir. 136 Ladd, F.2d v. States proba making a determination facts when 1983). Williams, 974 v. United ble cause.” however, if the contends, that even Cir.1992). v. Spinelli (4th See 480, 481 F.2d one, as search general not a warrant 410, 419, 89 S.Ct. States, U.S. be- general search a constituted executed (1969); United 590-91, 21 L.Ed.2d items irrelevant many insignificant, cause 139, 142 Blackwood, F.2d in- postal seized.” things to be war- a search issued magistrate weapons, prohibits thus IV. The Hor- to search authorizing the officer See, rant searches. general general warrants rob- of the proceeds only for home ton’s Maryland, v. e.g., Andresen bery and not the weapons. Upon execution Id. at 247 (citing United States Shilling, warrant, of the search proceeds of the Cir.1987)). F.2d 1365 Admittedly, robbery were not However, found. the offi- an exception general to this rule exists cer executing the warrant did locate the rob- extreme circumstances. The exclusion of ev- weapons ber’s plain view and seized them. properly idence pursuant seized to a valid Id. at 110 S.Ct. at 2304. chal- Horton search warrant may be required “if the offi- lenged the seizure of weapons such as violat- cers executing the warrant ‘flagrant exhibit ing his Fourth rights. disregard’ for its Borromeo, terms.” Because the officer in Horton did not lo- F.2d at 246. Unfortunately, the record be- proceeds cate the robbery, which were fore the court sheds light upon little objects for which the search warrant was circumstances surrounding the actual execu- issued, the court did not reach the question tion of the searсh warrant in this case. The of whether the objects officer’s seizure only witness who testified at the hearing held by authorized the search warrant warranted to consider Jones’ motion suppress, postal objects exclusion those for which a search inspector Hash, James was not personally by authorized the search warrant. In- present during the execution of the search stead, analysis in Horton deals with the warrant. While Mr. Hash identified a list of unrelated weapons whether found items seized from Jones’ automobile, and plain view during a search for other ob- stated that investigators actually who jects pursuant to a search warrant could be executed the warrant told him properly seized under the Fourth Amend- seized some of the items list, contained in the ment. Mr. Hash did not offer testimony as to the Furthermore, reasons for the specific seizure language of the additional (J.A., 74-76). Jones cites from items. Vol. I Horton upоn decision illus Based trates record court, before Horton holding we man are unable to dates the only exclusion conclude investigators’ evidence actions in by seizing obtained officers during the time in which additional irrelevant items consti- they are acting tuted “flagrant disregard” outside the search war for the terms of rant. Specifically, search Horton court warrant. states Accordingly, only that if the scope of remedy may search exceeds the be available to Jones as a terms warrant, subsequent “the result of the investigators’ sei actions would be zure is unconstitutional without more.” Id. exclusion of the additional irrelevant items, added). (emphasis and not the exclusion of the letter The court’s use of the words “subsequent containing the transmitting device. gov- seizure” indicates that ernment, however, items seized did not intend to intro- by officers while acting outside of scope any duce of the irrelevant agents items its of the search warrant are to be excluded. seized as trial; evidence at indeed, Therefore, while all evidence which is not items were promptly returned to Jones identified within a search may warrant shortly after their seizure. Obviously, then, if excluded the executing officer exceeds the the seizure of the extraneous items could not scope warrant, such exclusion does not affected jury’s consideration of extend to actually evidence named in the guilt. search warrant which is discovered during the course of the search. Accordingly, we hold that inspec Such a rule has been previously recognized tors’ failure to restrain their search within by this circuit in United Borromeo, the precise bounds of the search warrant (4th Cir.1992). 954 F.2d 245 Borromeo, does not “flagrant constitute disregard” for this court noted “‘[t]he exclusionary the terms of the warrant, and does rule compel does not suppression of evidencе not warrant exclusion the letter containing properly covered merely be- the electronic transmitter since the search cause other material not covered the war- for such was clearly letter authorized rant was taken during the same search.’” search warrant.

1315 two-level him the crime, it denied his for III ground that sought on he reduction remain two now address We of 3E1.1 timely. Section not acceptance at error, of which both of assignments ing of acceptance governs which guidelines, The stan his sentence. of legality tack the defendant “If states: responsibility, sentencing aof appeal on review of dard responsi- of acceptance clearly demonstrates Sen States the United of application judge’s offense offense, decrease bility for his pre issues on the depends Guidelines tencing Appli- § 3E1.1. U.S.S.G. by 2 levels.” level turns issue If the appellant. by the sented sec- 1(h) сommentary to of Note cation determination, ap we a factual on primarily determining wheth- that, in states 3E1.1 tion See standard. “clearly erroneous” ply downward for this qualifies the defendant er City, 470 U.S. Bessemer City v. Anderson of consider, may district court adjustment, 1511-13, 84 573-76, 105 S.Ct. the defendant’s alia, of timeliness “the inter issue, on (1985). If 518 L.Ed.2d re- acceptance of manifesting the in conduct in legal on the hand, primarily turns other application § 3E1.1 U.S.S.G. sponsibility.” term, the standard guideline a terpretation of 1(h). note ques Mixed novo review. to de closer moves aon reviewed are and fact of law tions Ap of the Court agree with We upon whether scale, depending sliding “[o]n that Circuit the Tenth for peals na legal in essentially factual are issues has timeliness, court district issue s See standard. deference due under ture v. State United discretion.” substantial F.2d 874 Daughtrey, v. States United (10th Cir.), cert. 1456, 1461 F.2d 906 Trujillo, Cir.1989). (4th 217 396, 112 denied, 498 U.S. Indeed, Application (1990). as L.Ed.2d adds, sentenc “[t]he A 3E1.1 to section 5Note a evaluate position to unique a judge is ‍​​​‌​‌‌‌​​‌​‌​‌​​​​‌​‌‌​​‌​​‌‌​‌‌​‌​‌​‌‌​​‌​‌​​‌‍in ing district that First, contends Jones responsibility. acceptance defendant’s accepted he had finding that erred court reason, determination For this denying crime, but then for his responsibility great defer judge entitled sentencing level. his offense reduction a two-level him applica § 3E1.1 U.S.S.G. on review.” ence ac respect to defendant’s law with record review of 5. Our careful tion note sentencing pur for responsibility ceptance court the district indicates case in this The de circuit. in this is well-settled poses arriving at its decision pains great took pre by a proving burden has the fendant an offense- entitled not that Jones factors mitigating the evidence ponderance responsibili acceptance for reduction level sentencing his ultimate lower that would did finding Jones factual court’s ty. The Urrego-Linares, v. States range. United crime for responsibility аccept (4th Cir.), de cert. 1234, 1238-39 F.2d 3E1.1 section contemplated timely fashion 346, 107 nied, 493 U.S. finding only the if appeal on reversed can be has (1989). defendant observe we Because clearly erroneous. by preponderance establishing burden disturb here, decline we error no clear mitigat applicability the evidence two- deny Jones decision court’s district case, he ing factor pur —in for level his offense reduction level con his criminal for responsibility accepted sentencing. poses Harris, F.2d United duct. F.2d Cir.1989); (4th Urrego-Linares, B this met has Whether at 1238-39. issue, district factual is a burden district Second, Jones contends unless disturbed not be will decision in its calculation including court White, erroneous. clearly occasions prior four his sentence Cir.1989). 427, 431 F.2d had vanished envelopes deposit mail Office’s Post Timberlyne found the district Although pouch. responsibility accepted ultimately had Section 1B1.3 of the sentencing objections are meritless. It well-estab- guidelines permits district courts to take lished that circumstantial evidence alone can “relevant conduct” into account in determin be support sufficient to proof, burden of ing a defendant’s sentence under guide where, even inas a matter of substantive lines. As the commentary to this section criminal liability, prosecution’s proof explains, the “principles and limits of sen must beyond See, reasonable doubt. tencing accountability” always are not e.g., Nye & States, Nissen v. United same as those of liability. criminal U.S.S.G. 613, 619, 766, 93 L.Ed. 919 § application 1B1.3 note 1. Convicted defen (1949); United Watford, States v. 894 F.2d dants can be held accountable for “all acts (4th Cir.1990). The Federal Rules and committed, omissions aided, abetted, of Evidence state that the formal rules of counseled, commanded, induced, procured or do not apply evidence to sentencing hearings, willfully caused the defendant....” see 1101(d)(3); Fed.R.Evid. moreоver, lB1.3(a)(l)(A). § U.S.S.G. The defendant commentary to section 6A1.3 of the sentenc- need not be convicted of the charges consti ing guidelines notes determining rele- tuting relevant conduct for him still to be facts, vant “[r]eliable hearsay evidence may held accountable for them. govern Yet the be considered.” § U.S.S.G. 6A1.3 commen- ment must establish the existence these tary; see also United States v. Terry, 916 other incidents preponderance (4th F.2d Cir.1990) 160-161 (noting that evidence. See United Uwaeme, States v. “United States courts long have a history of (4th F.2d Cir.1992). Whether the using hearsay reliable for sentencing”). government has successfully shouldered its proof burden of is a fact, government only needed we only review for clear error. See United prove the relevant conduct by preponder States v. Daughtrey, 874 F.2d ance of the evidence. We Cir.1989). say cannot the district clearly concluding At the sentencing hearing government government successfully had shoul (1) adduced evidence that mail containing dered this proof. burden of We therefore cash and checks had been stolen from a affirm the court’s use of the four previous registered pouch mail dispatched from the thefts of cash and currency as relevant con Timberlyne Post Office on four Saturdays duct in calculating Jones’ sentence. (February 8, 1992, February 1992, April 25, 1992, May 23, 1992); (2) that Jones had been the mail driver on each of these IV occasions; (3) that Jones had access pouch mail For containing the foregoing reasons, the cash both the dis- and cheeks when he balanced trict load of denial of Jones’ motion sup- trailer at the (4) Carrboro press Office; Post Jones’ sentence are hereby was the person who could have AFFIRMED.

broken the seal the trailer at Carrboro on dates; (5) relevant that Jones regu- larly had Timberlyne seen ERVIN, workers Judge, Chief concurring part counting money priоr to dispatch, its and dissenting part: often asked how much cash was in ship- I am agreement my with colleagues on ment. most of the issues in this case as well as with objects to the district court’s the ultimate decision to affirm judgment use of this evidence to establish his accounta of the district court. bility for the four previous thefts on the grounds that the evidence is Believing, however, both circum inspec- stantial and constitutes hearsay inadmissible tors’ use of electronic tracking devices to within purview of the Federal Rules of monitor the interior of Jones’ an area in Evidence. See 801(c). Fed.R.Evid. These which he retained a analysis in the Court’s I believe in violation a search privacy,1 equivalence upon an assumed rests Knotts dissent Amendment, respectfully I Fourth and “scientific “visual surveillance” between opinion. majority of the Part IIA2 from from surveillance Visual enhancement.” two the in detail address My brethren route, ad- Petsehen’s alоng places public discussing Court Supreme the of decisions suf- would have premises, joining Knotts’ Knotts, 460 problem, this his reveal both suggests, ficed, to the Court 1081, 75 L.Ed.2d U.S. cabin to Knotts’ of and the location progress Karo, U.S. (1983), and United 1086. at police. Id. at the (1984),so 705, 104 S.Ct. Amendment,” howev- “Nothing in the Fourth duplicating by my to be served is purpose no augmenting police from er, the “prohibited two in those the facts their summaries at upon them bestowed sensory faculties the cases. as science such enhancement with birth that holding of its way explanation By this case.” them in technology afforded a constitute did not Knotts monitoring in con- Karo, majority as the deciding no was there because seizure or a search monitoring of that cedes, held the Court priva- legitimate invasion Fourth the ambit within beeper falls said: cy, the Court informa- “critical it reveals when on automobile in an traveling person A that premises” the interior about tion ex- no reasonable has thoroughfares public through visual obtained have been not could from his in movements privacy pectation at 104 S.Ct. at U.S. surveillance.” Petschen another. When to place one house inside the beeper was That 3303. he volun- streets public over traveled visually verified have been not Karo could to wanted anyone to who tarily conveyed monitor. without over traveling he was fact look neither majority that agree I with direction, particular ain roads particular pre- resolves Karo nor Knotts made, and he stops whatever fact of chal- Jones’ sented he when destination final his fact of However, I am convinced case. lenge in this prop- private roads onto public from exited closely akin is more case this on balance erty. Knotts, because than to Karo to in- beeper in using the were inspectors possibly they could not see case to what stant of the failure Admittedly, because The in- its assistance. without have seen surveillance, enabled beeper accompany- visual the affidavit admitted spectors case to this officials enforcement law for the search application ing their place of resting ultimate ascertain to trace not being used beeper been not have they would van, chloroform instead but the movements solely their on they had relied so to do able ascertain van and interior enhancement eyes. But scientific naked drove as he followed contents. its issues constitutional raises sort this deter- it was post office away from also would surveillance visual trans- device the electronic mined that at a vehicle, following Petschen car police A (emphasis raise. signal mitting a from could journey throughout the dis- hearing distance added). suppression At the ar- highway and leaving the him inspectors observed а fact that found as trict respondent, owned riving the cabin con- the van’s ascertain beeper to used in the still of chloroform the drum recognized they with up what “They picked tents: car. had been the device signal awas to be- reason (which) gave them 1085, using . v. 281-82, in his may have been package lieve that assump- upon that was tried the case govern- and that important to remember 1. It that Jones tion. conceded case instant ment van, privacy in his expectation of car.” employed beeper limited structures or effects qualifying as not to enhance their visual ability private residences. follow but used it to instead determine majority relies on some cases whether a deposit envelope was inside the circuits, several of our sister but I will not tracking vehicle. Electronic augment vi distinguish them, discuss or light my sual surveillance would permissi have been colleagues’ forthright admissions that their Knotts; ble Karo, under hand, the other factual situations are somewhat different makes clear technology cannot be used (from case) our and they predate that all powers transmute the eye human Karo. I would suggest, also in ‍​​​‌​‌‌‌​​‌​‌​‌​​​​‌​‌‌​​‌​​‌‌​‌‌​‌​‌​‌‌​​‌​‌​​‌‍this connec- into x-ray those of an microscope. Karo, See tion, that their reliance on a concurring opin- 714-15, 468 U.S. at 104 S.Ct. at 3303. (in ion in Karo which only justice one other joined) is of value, limited at

The Court best. in Karo at point did one charac- terize the presented in terms of I am with accord Justice White’s asser- “whether the monitoring of beeper in a tion requiring a warrant will have the private residence, a open location not to visu- salutary effect of ensuring that use beep- surveillance,” al Karo, is a search. abused, ers is not by imposing upon agents at at 3303. As has been requirement demonstrate in out, pointed however, opinion opened justification advance their for the desirеd with a broader statement of the issue: search. 468 at 104 S.Ct. at 3304. “Whether the monitoring beeper of a falls within the ambit the Fourth Amendment I believe proper that a reading of Knotts reveals information that could and requires Karo us to hold that have been through obtained inspectors’ visual surveil- use anof electronic tracking de- lance.” vice 3296. As monitor interior of Jones’ leading opined, commentator area in has which he these retained a two expec- different, characterizations are tation of privacy, together and constituted a search in vio- lation create some uncertainty Amendment, with Fourth respect to the I dis- dimensions of sent from portion holding. Karo majority See opin- La- Fave, ion Seizure, holding Search 2.7(d), § otherwise. at 530. I agree "withProfessor LaFave that the under- reiterate, I however, I agree- am in lying principle of Karo is not limited to the ment with the remainder of the majority “monitoring beeper of a private in a resi- opinion and that as a consequence, join I Karo, dence.” 468 U.S. at 104 S.Ct. at holding that the decision of the district court 3303. As partially three concurring Justices should be affirmed. noted, the Court also recognized generally that “when person’s property is concealed public view, ... then the fact of his

possession private subject protection.” Karo, U.S. at (Stevens, S.Ct. at 3311 J., joined by Brennan Marshall, J.J., con- curring in part and dissenting in part2. view,

my the touchstone principle of Karo— that an electronic tracking ‍​​​‌​‌‌‌​​‌​‌​‌​​​​‌​‌‌​​‌​​‌‌​‌‌​‌​‌​‌‌​​‌​‌​​‌‍may device not be used to enable law agents enforcement

learn exposed facts not public view—is not Stevens, Brennan, Justice Justice Karo, and Justice has occurred. 468 U.S. at Marshall concurred in Part III major- of the Karo (Stevens, J., joined by Brennan and Mar- ity’s opinion, which beeper concluded that when shall, J.J., concurring part and dissenting in surveillance reveals the property location of part); 713-18, see also id. at 104 S.Ct. at 3302- has view, been public concealed from a “search” (Part OS majority III of opinion). meaning within the of the Fourth Amendment notes seized. He were deference, Cir.1990). level this Applying con- envelope only the spectors seized magis whether is directed inquiry our transmitter, a also but electronic taining the conclu for his basis” a “substantial trate radio, speaker a cassette telephone, cellular Williams, existed. cause probable sion that a amplifier, and notebook, power boxes, Blackwood, 481; 913 F.2d F.2d were items The irrelevant detector. radar we reasons same for the Accordingly, Jones. returned to later sup van of Jones’ seizure concluded California, to Horton points cause, find we by probable ported 128, 110 S.Ct. U.S. obtained inspectors warrant principle that: standing (1990), for as van Jones’ interior of searching thе before exceeds search scope “[i]f proba indicia by sufficient supported validly issued of a by the terms permitted constitutionally valid. ble cause ex- of the relevant the character or warrant requirement, ception C with- unconstitutional subsequent seizure contention consider Finally, we 2309-10. Id. at more.” out by the as executed search scope support Horton reliance scope of exceeded so seizure investigators’ argument entire render as to the warrant exclusion warrants items irrelevant constitutionally invalid. transmit- containing the electronic envelope Horton, police officer misplaced. ter is Clause Warrant home to search a warrant sought shall Warrants that “no provides suspected Horton, who was petitioner, cause, supported issue, probable upon but sought officer Although the robbery. armed describ affirmation, particularly Oath both for to search him permitting a warrant searched, person and the place to be ing the robbery and the robbers’ Const, proceeds amend.

Case Details

Case Name: United States v. Ervin Charles Jones

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Aug 10, 1994

Citation: 31 F.3d 1304

Docket Number: 92-5823

Court Abbreviation: 4th Cir.