*2
1980,
agents
Minnesota
delivered to the
Peterson,
Friedberg,
W.
Joseph S.
Mark
Company
Hawkins Chemical
can
of chlo-
Minn.,
Leroy
argued, Minneapolis,
placed
a beeper
roform in which
been
Knotts.
with
company’s
expected,
the
consent.
HENLEY,
Before HEANEY and
Circuit Armstrong picked up
day.
the can later that
PECK,*
Judge.
Circuit
Judges, and
Senior
Armstrong
Police followed
to Petschen’s
house,
the
where
can was transferred to
PECK,
Judge.
Senior Circuit
Petschen’s car. Petschen
followed to
was
Leroy
Darryl
appeal
Petschen
Knotts and
farmhouse,
stopped
his
he
Scandia
where
conspiring to man-
from their convictions of
only briefly
driving
agent
before
on.
princi-
controlled substances. The
ufacture
following
sight
twice
Petschen
lost
Pet-
pal
appeal
concerns the
issue
admissibili-
car,
Petschen,
purposely
schen’s
once
when
through
ty of
use of a
evidence obtained
perhaps
being followed,
aware that he was
placed
signal
(“beeper”)
by po-
transmitter
began driving evasively. Shortly after this
purchased
in a can
lice
of chloroform
agent
beeper signal,
evasion the
lost the
co-conspirator
appellants’.
and the drum’s location was uncertain until
argue
Knotts and Petschen
the war-
again
up
picked
was
and its
rantless use of this
violated their
through
source
helicop-
verified
use
rights,
Fourth Amendment
and that
ter.
stationary
spot
The drum was
at a
through tracking
evidence obtained
yard
later
found to be
aof
secluded
have
should
been excluded
by appellant
cabin оwned
district court.
later,
days
Four
Minnesota and federal
part
Knotts and Petschen were
of an
agents got and executed warrants to search
enterprise engaged in the manufacture of
Petschen’s farmhouse and Knotts’ cabin.
amphetamine
methamphetamine.
A
search of
cabin
a сlan-
uncovered
enterprise
third member of this
was Tristan
drug laboratory.
destine
Chemicals and
Armstrong,
group,
“chemist”
equipment
laboratory
seized from were
appellants
who was indicted with the
but
admitted into evidence over Knott’s and
pleaded guilty
against
and testified
them.
suppress.1
Petschen’s
motions
1979, Armstrong
In June of
had drawn the
currently
The Fourth Amendment
de-
suspicion
investigators by
of Minnesota
protecting persons’ “legitimate
scribed as
alleged pilferage
drug-precursor
chemi-
expectations
3M,
privacy”
government’s
employer.
cals from
his former
Fur-
Rawlings
investigation
Armstrong
unreasonable intrusions. See
thеr
raised sus-
103-105,
picion
Kentucky,
drug
illicit
448 U.S.
100 S.Ct.
manufacturing,
2556, 2561-62,
(1980);
produced
65 L.Ed.2d
linking Armstrong
ap-
evidence
633
Unit-
Salvucci,
83, 89-91,
pellant
Armstrong
ed
Petschen.
States v.
448
placed
was
U.S.
taking
(1980);
under
surveillance and seen
S.Ct.
Rakas v.
boxes
Illinois,
128, 139-49,
Company
from the Hawkins Chemical
439 U.S.
99 S.Ct.
Minneapolis
428-433,
city.
to Petschen’s house in that
cause or warrant same rationale as Michael g., rality). E. Katz v. 507, 514,19 (1967); L.Ed.2d S.Ct. Circuits have considered the Rawlings, supra, 448 U.S. at tracking beepers constitutional strictures on *3 (Blackmun, concurring). J. 2565 vehicles, placed, perso not on on but other difficulty applying The in the test of “le nalty, vаrying have reached results. Nu gitimate privacy” expectations of in elec merous courts have seen no ex tronic surveillance cases is that considera pectation privacy of in the movement of expectations tion almost of such leads ine drugs illicit discovered in international mail. question” luctably “philosophical to the 938, Bailey, See United v. States 628 F.2d protections whether the constitutional of (6th 1980), 942 Cir. and cited cases there. privacy or should diminish with must tech The chemical tracked this case is not nological innovations surveillance. See expan contraband. It would be a limitless Bruneau, 1190, v. F.2d United States 594 police power sion of to allow warrantless 847, (8th Cir.), denied, 444 1196 cert. U.S. tracking goods of lawful an wherever illicit 94, 100 The S.Ct. suspected. use was suspected, If crime is Court in Bruneau was reluctant address any cause for pri electronic surveillance of question. sweeping this It its deci limited activity vate area or should be determined it, question sion to the narrow and before by magistrate, a by neutral not interested judicious we will follow this lead. agents. supra, executive Bailey, 628 F.2d at 944. preliminary
The narrow
issue in this
case
of
monitoring
beeper
is whether the
The First
Sixth
and
Circuits have held
placed
perso
object
placed
“private
in an item of
that
if an
is
non-contraband
in a
area,”
nalty
subject
supra,
944,
Bailey,
can be a search
to the Fourth
628 F.2d at
or
view,” Moore,
public
Amendment’s restrictions.2 This is' not a
“withdrawn]
113,
beeper being
supra,
case of a
to an
562
beeper
attached
auto
F.2d
surveillance
mobile,
object’s
ultimate
so the
issue is
whether
of the
location or movement is an
expectation
infringement
there can
an
inter-
subject
the route taken
over
ests. As
auto
such this surveillance is
Michael,
roads.
requirements
Cf. United States v.
645
warrant
cause
of the
252,
(5th
1981) (en banc,
F. 2d
257
Cir.
11-3- Fourth Amendment. The Ninth and Tenth
Circuits,
decision)
hand,
10
(plurality
on the dimin
on
other
relied
have formulat-
privacy surrounding
might
ished
ed what
be called a de minimis ex-
-
automobiles),
denied,
-,
Amendment,
ception
cert.
holding
U.S.
to the Fourth
489,
102
(1981);
beepers
that
L.Ed.2d
since the intrusiveness of
is
Moore,
slight, beeper
United
v.
require
States
562 F.2d
surveillance does not
justification
1977),
denied,
112-13
Cir.
cert.
antecedent
of a warrant.
L.Ed.2d 521
v. Clayborne,
See United States
584 F.2d
(1978) (“probable
justi
(10th
1978)3;
cause” sufficient to
350-51
Cir.
fy
tracking
Dubrofsky,
warrantless electronic
of car on
Hufford,
public roads);
followed,
Bernard,
(9th Cir.),
denied,
1980).
859-60
preliminary
Clayborne
suggests
2. Another
issue is whether installa-
alsо
area
invaded
pro-
open
tion of the
violated constitutional
use of the
that case was
Following
public, although
only
hold
tections.
we
that the
to the
information
support
consent of the owner at the time of installation
offered to
was that the
conclusion
requirements
building
laboratоry
housing
meets the
Amend-
the Fourth
the clandestine
ment,
consenting
Clayborne
even if
owner intends to
See 584 F.2d
had several entrances.
“bugged” property
soon sell the
to an unsus-
accompanying
at 350 n.2 and
text.
pecting buyer. See
Knotts, First, as the monitoring resident is not clear that property, reasonable, certainly only could have a which broadcasts location is a “search,” in the opposed as a mere visual aid objects public binoculars, kind and lights, location out such as or trained Petschen, however, view on dogs. With land. 1979);
this is not
(8th
so. Petschen asserts that he had F.2d
Cir.
reasonable
arti
v. Dubrofsky,
211-12
cles left
1978). Assuming, however,
farm
he was a
Knotts’
because
Cir.
“possesso monitoring
co-venturer of
Knotts’ and had a
this
case was a
ry
proprietary
search,
and
assuming
interest
in the laborato
and further
that Knotts
ry equipment,
standing
chemicals
and
the labora
to raise a fourth amendment
tory
up
which
operated.”
challenge,
he set
and
Al-
issue becomes whether
ever, pursuant
analysis.
ex-
to the second
Un-
had a reasonable
Knotts
approach,
location of the
der this
pectation of
in the
the issue as
stated
property.
Bailey,
of chloroform on his
628 F.2d at
barrel
is
exception
whether the contraband
should be
notes, the
majority
cases are in
expanded
to include
chemicals
area,
in terms of both
this
consistent
present
such as the chloroform in the
case.
analysis.
analysis
One
focuses
result
majority
expan-
concludes that such an
containing
the location of the item
expansion
po-
sion “would be a limitless
analysis,
beeper.
may
items
Under
this
power [allowing]
tracking
lice
warrantless
public places, e.
generally be monitored in
goods
of lawful
wherever an illicit use was
Moore,
g.,
suspected.”
majority’s
concern with
denied
sub nom.
police power
certainly
limitless
a valid
Bobisink United
one, and the
between
distinction
contraband
(1978), but moni
may
and noncontraband
be convenient.
toring may
prohibited after
be
items
Nevertheless,
such an inflexible rule
view,
g.,
withdrawn
e.
are
Unit
prohibit a
legiti-
true determination of the
Bailey,
ed States
macy
of an
in items
1980).
analysis focuses
Another
on the
for use in
intended
manufacture
containing
beeper.
nature
the item
of controlled substances.
analysis,
may
contraband items
Under
location,
regardless
g.,
monitored
e.
policy
The ratiоnale and
considerations
*5
Emery,
v.
A conviction, precursоr support made of Knotts’ how- tation of chemicals. aspect apparently One considered'
the courts is the effect of the forfeiture FARMS, INC., Appellant, STALEY provision of the Controlled Act Substances possessory pre- on an individual’s interest in Dorothy Vernon RUETER and Ann cursor chemicals. 21 881. U.S.C. Subsec- § Ruеter, Appellees. (a)(2) provides tion for the forfeiture of materials, products, equip- raw “[a]ll No. 81-1098. used, any ment of kind which are or intend- use, manufacturing, compounding, ed Appeals, States Court of processing any . . . controlled substance Eighth [or] Circuit. subchapter.” Although in violation of this Submitted Oct. 1981. provisiоn pos- does forfeiture not make se, precursor illegal per session of chemicals Decided Nov. clearly right possess affects such
chemicals, and diminishes one’s respect with to these
items.
Furthermore, in the circumstances of this
case, expansion of the contraband ex-
ception to include chemicals sub-
ject to forfeiture would not allow the
government suspicion. to act on mere
From the Armstrong moment loaded the
beeper-laden drum of chloroform into his
automobile, that chloroform became dedi-
cated very illegal conspiracy to use in the and,
which defendants were convicted so
dedicated, that immediately chloroform be- *6 subject
came Although forfeiture.
government agents did not at time
know all persons who be en-
gaged operation, in the illicit prob-
able cause to believe that the chloroform use,
was intended for as indeed Thus,
was.1 I conclude that Knotts had no
legitimate expectation in the lo-
cation of the chloroform that was violated
by monitoring beeper. indicated, I concur in the affirmance Petschen;
of the conviction of I dissent from the reversal of the conviction of Cady, III, Hobson, A. argued, G. Cady & Drew, Iowa, Hampton, Farms, Staley
Inc.
Gary McMinimee, Wunschel, L. argued, McMinimee, C., Carroll, Eich & Iowa, P. Rueter, Vernon et al. 881(a) (b) permissible. Under 21 Milham, § U.S.C. warrantless probable seizure of the citing California, chloroform on Cooper cause was authorized and where such a seizure is 386 U.S. 17 L.Ed.2d 730 authorized attendant warrantless search of the containing vehicle the forfeitable material