United States v. Sammy Brice Brock, United States of America v. Roger Lee Bard

America, UNITED STATES

Plaintiff-Appellee,

Sammy BROCK, Brice

Defendant-Appellant. America,

UNITED STATES

Plaintiff-Appellee,

Roger BARD, Defendant-Appellant. Lee 80-1736,

Nos. 80-1737. Appeals, Court of Circuit.

Ninth

Argued and Submitted June 1981.

Decided Feb. 15, 1982. March As Amended Rehearing En Banc

Rehearing June

Denied Cir., also,

See and 625

F.2d 854. Coon, Portland, Or.,

James S. for Brock. Ransom, Portland, Or., John S. for Bard. McLaughlin, James Asst. Atty., U. S. Portland, Or., for U. S. *,

Before and ADAMS SNEED FLETCH ER, Judges. Circuit

SNEED, Judge: Circuit Appellants, Bard, along Brock and with Childress, Bernard, codefendants and Co- chran, charged were indictment May 24, 1978 in Oregon the District of with conspiracy possess to intent to manu- and methamphetamine, facture distribute substance, in controlled violation of 21 812, 841(a)(1), (Count I), §§ U.S.C. and 846 methamphetamine, manufacture of in viola- of 21 841(a)(1) tion U.S.C. and §§ (Count II), possession and with intent to methamphetamine, distribute in violation of 841(a)(1)(Count III). 21 U.S.C. 812 and §§ Brock and Bard were convicted in a jury II acquitted trial Counts I and and III. Both Count were sentenced to three prison year year probation terms five and concurrently to run prison terms with the terms.1 We affirm the convictions.

I.

FACTS The facts to appeal relevant this previous been revealed to this court in ap- and peals appear previous opinions in two this court. See United States v. Ber- * Adams, growing phetamine Arlin Honorable M. United States Cir- out the transfer of chem- Circuit, Judge sitting Lewiston, Clarkston, for cuit the Third des- icals from Idaho Wash- ignation. ington, underlying present ap- facts also Bernard, peal. See 625 F.2d appeal involving ap- the second This is these (9th 1980) (Bernard II). Cir. pellants, appeal involving and the third subsequently Count 1 in this case dis- government Previously, situation. in a factual against upon missed his Bernard conviction in indictment, appeal involving this this court re- Washington. plead- Eastern District He suppression resulting versed order from the guilty awaiting finding ed Count II and sentenc- probable court’s district no cause to ing, point alleged at which III will be arrest an Count dismissed. Jencks Act violation. See Bernard, (9th pleaded guilty States v. United 607 F.2d 1257 II and Childress Count Counts revised, (1980) (Ber- Cir. F.2d I and III were Cochran dismissed. testified at Also, I). nard this court reversed Bernard’s exchange Brock and Bard’s trial in for dismiss- conviction the Eastern District of Wash- charges against al of all him. ington conspiracy for to manufacture metham-

nard, (9th 1979), revised, depot, canister, entered the obtained the (Ber- 1980) placed began it in their car. Fredericks I); Bernard, nard both visual and electronic surveillance of 1980) (Bernard II). vehicle; however, lost all contact was Nonetheless, the interests of convenience Clarkston, near Washington. Fredericks by again and coherence will be served set- proceeded Walla, then to Walla Wash- ting them forth. ington, suspected destination of the can- ister, and conducted further electronic sur- Timothy In December 1977 Boehm of veillance, Physicians but without success. The Surgeons Spo- & Supply Co. in kane, Washington, telephone up was next picked evening received a or- on the phenyl-2-propanone, der from Bernard for 23 coming March from a home on Tenth methylamine, When and other chemicals. Street Clarkston. The continued placing the order Bernard claimed he was transmitting Clarkston location associated with a fertilizer company. Be- through until at least the afternoon of cause the precurser chemicals are also March 24. ampheta- for chemicals the manufacture of When Fredericks next checked for mines, Drug Boehm contacted the Enforce- longer transmission on March it nowas Agency (DEA). ment beeper the Clarkston location. The was picked up Bernard finally through chemicals on De- located aerial surveillance cember Meacham, agents, DEA under the in Oregon on March 28. Ground Fredericks, direction Michael E. observed surveillance revealed was in pickup and instituted surveillance of a cabin in Meacham. The cabin was known Bernard. Bernard proceeded by car with to have been used Bernard in the past, another passenger through Spo- downtown it appellants and was the residence of Brock kane out city. and Bernard took a and Bard. Electronic surveillance of the Ridgefield, circuitous route to Washington Meacham cabin was maintained while Fred- Odessa, and then toward Washington. It ericks Spokane returned to to coordinate appeared to Fredericks that the surveillance efforts between the Eastern District of had been Thereafter, detected. he termi- Washington and Oregon the District of nated it. obtain warrant to search the cabin. On March 31 a search warrant was obtained again Bernard contacted Boehm in Janu- However, based on order, Fredericks’ affidavit. ary placed 1978 and a second kilograms methylamine. nine time for warrant was not executed at that time. March, When the in Fred- chemicals arrived placed Bernard a third order with Boehm picked up ericks them and took them the early April, in for phenyl-2-pro- this time Spokane they office of the DEA where panone, but later to say called Childress placed specially were in prepared canister would picking be up. April On 6 Chil- that was with a fitted false bottom beneath appeared dress picked and up the order. (beeper) which an electronic transmitter accompanied Bard had Childress to the placed. had been subsequently Bernard pickup taxi, by private plane they and requested called Boehm and that the chemi- both plane returned to the with the chemi- cals be Freight delivered to the Garrett Hermiston, cals and then flew to Oregon. Lewiston, Depot Line Fredericks Idaho. April 7 On surveillance in re- Hermiston Depot then took the to the canister Garrett a meeting vealed of vehicles and motor Lewiston, necessary paperwork had the home, proceeded which then to Hat Rock prepared to conceal intercession of Park, arriving State at approximately 1:30 DEA, and resumed surveillance. p. m. The convoy parked in a secluded area near a river. was Visual surveillance main- On March 1978 Bernard and another throughout agent tained the afternoon. An passenger appeared Depot at the Garrett “cooking.” pick the same car smelled chemicals ob- up that had been used to Another shipment the first They December 1977. served Brock dash out motor home air, choking against conspirator. as if on fumes. another gasping for Fed.R.Evid. and, 801(d)(2)(E); p. Fielding, arrived at 6:50 m. after United Fredericks States scene, agents decid- talking 1981); with the approxi- Weiner, the motor home at (9th Cir.) ed to search agents mately p. curiam), 7:00 m. The ordered all of (per occupants of the motor home and out prereq A Brock, Bard,

placed them under arrest. 801(d)(2)(E), uisite to admission under Rule Bernard, Childress, and Cochran were found however, independent is that there must be Agents then entered in the motor home. proof of the conspiracy and of the defend any people to see if other the motor home conspiracy. ant’s connection to the United inside, any cooking appa- were to turn off 725; Fielding, 645 F.2d at ratus, inventory They contents. and to its Weiner, States v. 578 F.2d at 768-69. methamphetamine laboratory be- found Here, clearly there was sufficient in hind a drawn curtain at the back dependent proof of both the existence of motor home. conspiracy and of appellants’ con laboratory packed up The was then for canister, nection to it. The which was or transport. The motor home was driven to dered Bernard and in which the agents pursu- Hermiston where searched it placed, appellants’ tracked to resi following ant to a day. warrant dence, picked up Bard Bernard’s third previously search warrant obtained for the order, chemical appellants both were Meacham cabin April was also executed on arrested, Bernard, along with in the motor home where the methamphetamine labora tory operation. was in On these facts a

II. jury rational could find that Bernard’s orders, ANALYSIS second and third acquisition, and transportation of chemicals were in further Appellants raise seven appeal, issues on single conspiracy ance of a to manufacture each of which we will address.

methamphetamine involving both Brock Coconspirator Introduction of State- Consequently, and Bard. the evidence was ments and Acts admissible. Appellants first contend that the district Appellants’ objection testimony to by court erred admitting the out-of-court regarding the statements and actions of statements alleged and acts of their cocon- respect Bernard with to the first order of spirator They Bernard. they contend that quite chemicals is more substantial. It is prejudiced because,

were while the state- arguable these that statements and actions ments and clearly activities of Bernard indi- coconspirator exception are not within the engaged cated that he was in the manufac- 801(d)(2)(E). Moreover, of Rule it could be ture of methamphetamines, there was no argued testimony regarding that Bernard’s evidence linking them to the activities of designed evasive actions to shed DEA sur Bernard other than occupancy their of the veillance is inadmissible because irrelevant.2 Meacham cabin. Nonetheless, possible such errors were coconspirator clearly light

Statements of a harmless in of the made overwhelm during 772; ing the course and in guilt. furtherance of a evidence of id. at See conspiracy Evidence, are not hearsay 801(d)(2)(E)[01] ¶ under the Feder Weinstein’s at al Rules of (1979). Moreover, Evidence and are admissible 801-183-84 and n.64 it is parties admissibility by 801(a)(2). 2. The address the him as an assertion.” Fed.R.Evid. testimony attempts attempts of Bernard’s to evade DEA The evasive cannot be said to question acts; surveillance as a of whether such acts been intended as “communicative” in- coconspirator stead, conduct, they merely were statements not within the were nonassertive hearsay 801(d)(2)(E). hearsay. generally definition of under Rule which is not See 4 Wein- testimony Evidence, 801(a)[01] Such concerned “nonverbal con- stein’s at 801-53-57 ¶ and, consequently, Thus, duct” is a “statement” with- it is admissible if relevant. hearsay only rules “if it intended [was] ing on Kotteakos v. United likely jury’s principally

not assessment States, Brock’s and Bard’s activities was influenced U.S. 90 L.Ed. Durades, and (1946), by attempted evidence that Bernard once to 607 F.2d 818 agents. evade DEA In Kotteakos the Solicitor General con- Conspiracy 2. Variance in Proof of ceded that the evidence had shown a multi- Appellants’ ple wheel-type conspiracy next contend that there awas with one Brown hub, fatal ad- at but had not variance between evidence shown that spokes of at the wheel were conspiracy charged duced trial and the connected rim. 328 I 1243. The They argue Count of the indictment. failure demonstrate the existence of a testimony regarding Bernard’s activities re- rim prejudice made obvious the to the de- conspiracies. vealed at least two distinct fendant which proof results from of crimi- composed The first was of Bernard and nal acts committed not party those Comstock, Ralph which involved second illegal activity. the defendant’s See also electronically chemical order that was Durades, Lewiston, tracked from Idaho to Meac- multiple (proof conspiracies single when of the Ber- subject ham cabin and was conspiracy charged requires reversal where II prosecution. nard The second involved obvious). prejudice is the third ultimately chemical order that led to the arrests at Hat Rock State Park. The Here, however, the existence of the indictment, assert, appellants charges charged rim both and established. Al only the conspiracy relating Hat though only alleged in overt acts Therefore, they Rock State Park incident. indictment April 7, related to events of contend they prejudiced by were arrests, the date of the the conspiracy guilt transfer of conspiracy alleged begun to have “on or about charged charged, 1,1978.”3 to the rely- Thus, one that was January the second chemi- CHILDRESS, 3. The BROCK, indictment read as follows: RAE SAMMY BRICE BARD, ROGER LEE and RUSSELL RICH- COUNT I personally physical- ARD COCHRAN did January 1. From on or about ly portions apparatus capable handle of an continuing 7, 1978, including April to and manufacturing methamphetamine, a Sched- Oregon, places the District of and at various Drug ule II Controlled Substance. Oregon, outside the District of HOWARD acts, purpose 3. As further overt whose BERNARD, DALE GORDON RAE CHIL- object was to effect the of the above-men- DRESS, BROCK, SAMMY BRICE ROGER conspiracy, Jury charges tioned the Grand BARD, LEE and RUSSELL CO- RICHARD incorporates by and herein reference those CHRAN, herein, willfully defendants did and specified acts in Counts 11 and III below. combine, knowingly conspire, confederate, COUNT II agree together and and with each other and 7, 1978, April orOn about in the District of persons, with diverse other whose names to BERNARD, Oregon, HOWARD DALE GOR- Jury unknown, the Grand are to manufacture CHILDRESS, RAE DON BROCK, SAMMY BRICE possess and to with intent a distribute BARD, LEE ROGER and RUSSELL methampheta- substance which contained mine, COCHRAN, herein, RICHARD defendants Drug II Schedule Controlled Sub- knowingly intentionally did and manufacture stance, 21, in violation of Title United States methampheta- a substance that contained Code, 812, 841(a)(1), Sections and 846. mine, Drug a Schedule II Controlled Sub- conspiracy 2. In furtherance of said and stance; 21, in violation of Title United States object to effect the thereof certain of the Code, 841(a)(1) 812, Sections and and Title commit, others, among defendants did 18, Code, Section 2. following overt acts: COUNT III OVERT ACTS 7, 1978, April or On about District of 7, 1978, April 1. orOn about the defend- BERNARD, Oregon, HOWARD DALE GOR- BERNARD, ants HOWARD DALE GORDON CHILDRESS, DON RAE BROCK, SAMMY BRICE CHILDRESS, BROCK, RAE SAMMY BRICE BARD, ROGER LEE and RUSSELL BARD, ROGER LEE and RUSSELL RICH- COCHRAN, herein, RICHARD defendants place ARD COCHRAN did meet at a near knowingly intentionally possess did Oregon. Hat Rock State Park in the State of intent to distribute substance that con- 7, April 1978, 2. orOn about the defend- methamphetamine, Drug tained II a Schedule BERNARD, ants DALE HOWARD GORDON Substance; Controlled in violation of Title

1317 They clearly scope testimony. object order was within the did not to the cal dis- potential The fact that sub indictment. reversing prior trict court its decision to Comstock, existed, e.g., Bernard and groups testimony preliminarily take the without negate single existence of a does Also, jury present. they object failed to Zemek, 634 conspiracy. United States testimony the admission Cochran’s 1159, 1167 (9th denied, Cir. cert. F.2d jury. when it was offered to the Conse- 1359, 916, 101 67 341 U.S. L.Ed.2d quently, appellants objec- their waived easily could jury have inferred tions to the district treatment of court’s the second the fact that order testimony. Cochran’s to the cab electronically tracked Meacham Accordingly, may appellants’ we review residence, in, appellants’ part that it was only plain contentions for error. Fed.R. single conspiracy continuing to manufac 52(b); Crim.P. United v. Ochoa- States methamphetamine ture that culminated Torres, 689, (9th 1980). April the arrests on See, No such error exists. Moreover, theory it was not even a DeFillipo, (2d Cir.), 590 F.2d proof trial showed defense denied, cert. single multiple conspiracy rather than a (1979); L.Ed.2d Mayes, United States conspiracy. Appellants did not ask for (6th Cir.), multiple conspiracy instruction. See United v. Kenny, 645 F.2d (1975), grounds, overruled on other 1981) (defendant entitled to in- jury Enright, States v. legitimate theory on a struction of defense it). there is support if evidence to Their they legitimate defense was that were fer- Additionally, inapplicable Bruton is tilizer manufacturers. to this Bruton is premised case. on the confrontation clause and bars the introduc Suppress Failure to Statements of post-arrest by tion of made co- statements Cochran implicate defendants that other defendants Appellants next their contend con- testify when the declarant will not at trial. victions should be reversed because of Here, 391 U.S. at 88 S.Ct. at 1622. in- testimony. They admission of Cochran’s appellants confronted He testi Cochran. first, by sist the district court erred: fied at and was trial cross-examined failing testimony to take Cochran’s outside assignment Appellants, them. their presence jury, agreed as it had error, complain being about confronted do; second, by failing to exclude Cochran’s Cochran, being not about confronta denied testimony because was not in furtherance tion. third, conspiracy; by admitting testimony appel- Cochran’s violation of 4. Warrantless Search of Motor Home lants’ Sixth Amendment confrontation Appellants next attack the warrantless of rights violation Bruton v. United search of the motor Hat Rock home at States, 123, 1620, 391 88 20 on April State Park assert They (1968). Appellants’ arguments L.Ed.2d 476 this search violated their Fourth Amend- meritless. are because, rights the contrary ment to district quite The record is clear that appel finding, exigent court’s no circumstances objections lants’ tes proposed to Cochran’s justifying search existed. timony appellants’ concerned fear that lead government has When con questions ing by would be utilized with the government They complying his ducted a search without testimony. to elicit objecting were not to the content it burden of requirement, of warrant has the 21, Code, 841(a)(1) United States Sections Section 2. 812, 18, Code, and and Title United States

1318 justification showing agents exists. United the need of to enter check Gardner, 906, (9th explosiveness Here, v. 627 F.2d 909 States chemicals. Hoffman, 1980); urgent. Cir. United States v. 607 need to check was even more The 280, (9th 1979); agents parties F.2d Cir. United States knew that the in the motor 97, (9th Dugger, v. 603 F.2d Cir. home had “cooking” been chemicals and “exigent justi- The so-called circumstances” that Brock had rushed out of the motor “ fication there choking exists when ‘a substantial home from the fumes. As the dis- persons found, facts, risk of harm to or involved trict court these combined process agents’ the law enforcement ... if knowledge the with the explo- police delay ... search until a making warrant siveness of the chemicals used in ” methamphetamine, justified be obtained.’ United States v. agents’ Gard- be- [can] ner, 627 at (quoting F.2d lief States that the motor home to be had searched Robertson, (9th possible Moreover, 606 F.2d explosion. to avoid a 1979)). The need agents exactly search must be (for were unaware who was readily apparent police to the and so strong in the motor home and whether all occu- outweighs important Indeed, pants Fourth had exited. until Bernard protections Amendment provided by exited, they had not been aware that he requirements. warrant Id. present. even We say cannot that we are left with a “definite and firm conviction question exigent whether committed,” that a mistake has been largely exist is circumstances factual one. thus the district finding exigency court’s Williams, United States v. 630 F.2d clearly was not erroneous. United 1980); (9th United States v. Flick Co., Gypsum United States 333 U.S. inger, 573 F.2d Cir.), 525, 542, (1948); 68 S.Ct. 92 L.Ed. 746 Gardner, United States v. 627 F.2d at 911. L.Ed.2d Our review aof district This contention also must fail. finding exigent court’s circumstances fact, specific findings based on as re Monitoring Beepers Warrantless quired by 12(e), pur Fed.R.Crim.P. must be Appellants next clearly govern- suant to the contend that the erroneous standard. Gardner, 909; monitoring ment’s warrantless United States v. of the elec- 627 F.2d at 99; tronic Dugger, methyla- 603 F.2d canister of mine while it Flickinger, United States v. located the Meacham 1356-57. cabin an See also United States constituted v. Wil unreasonable search in liams, 1327; 630 F.2d at violation their Fourth Amendment Bates, rights. 1976) This issue raises difficult and trou- (when finding district bling questions. court’s of exigency Adaptation of Fourth accompanied findings written of Amendment values and jurisprudence to fact, we independently review the age record rapidly electronic into which we are applying the presents constitutional criteria of rea moving challenge with which sonableness). this nation will be concerned for some time to come. implica- The Fourth Amendment Our review commences observ tions of the use of beepers electronic al- that, ing inasmuch as Bernard I found that ready has divided the circuits provoked probable no cause to arrest existed until greet See, deal commentary. e.g., just immediately before the arrests took Note, Katz; Tracking Beepers, Privacy, and place, 558-61, 623 F.2d at a warrant Amendment, the Fourth 86 Yale L.J. 1461 search the motor home could not been (1977). Beepers are a new electronic law at obtained an earlier time. The issue is purpose enforcement aid the of which is to whether the search ought to have been de ability agents enhance the to follow the ferred until after a warrant could have movements, whereabouts, or to discover the been Relying obtained. on Williams the suspects. thought district court not. In Williams a finding of exigency to a search motor home We that the monitoring hold five hours after the beeper arrests was based on while it was in the Meacham cabin

1319 511-12,7 Consequently, did not constitute a search. at explicitly rejected the no- required, appellants’ property no warrant was tion that interests control Fourth rights analysis. 353, Fourth Amendment were not violat- Amendment Id. at 88 S.Ct. holding state our ed. We this manner reach of Amendment “[T]he [the] appellants challenging because are neither upon turn presence or ab- [does not] beeper the installation of the in the physical canis- sence of a any given intrusion into ter,4 monitoring nor the beeper of the Stressing enclosure.” Id. “people” Lewiston, track the car from “places” theme, Idaho to rather than the Court con- Clarkston, Washington, signal by noting until the cluded was that pri- considerations of lost,5 vacy, monitoring beeper consequent nor the of the and the Fourth Amend- protections, Clarkston, when it ment the residence in do not vanish when the setting telephone booth, monitoring nor the a rather beeper by air- than a 359, or home a hotel room. plane presence to locate its Id. at 88 in the Meacham S.Ct. at 515. It stated: agents cabin on March 27 DEA after had Thus, signal

lost the a be, second time.6 may Wherever a man he is entitled to only issue before us is whether the monitor- know that he will remain free from un- ing of the beeper while it was in the Meac- reasonable searches and seizures. The ham government cabin on March 27 and 28 before a agents ignored here “the procedure warrant was obtained was a search. justification of antecedent ... is central to the Fourth Amend- starting point analysis of our is Katz ment,” (footnote omitted) procedure States, 347, 507, v. United 88 U.S. S.Ct. that we hold to be a pre- constitutional (1967). 19 L.Ed.2d prosecu- In Katz the condition of the kind of electronic surveil- tion introduced phone evidence of conversa- lance involved in this case. tions that had been obtained FBI wire- Id. taps public telephone 348, of a booth. Id. at Court, 88 S.Ct. at 509. The in holding that It is Justice Harlan’s formulation of the the Fourth Amendment had privacy been trans- frequently test that has been most gressed, noted that “pro- applied See, Amendment e.g., since Katz. Smith v. people, tects places.” not Maryland, 739-41, U.S. S.Ct. at 511. 2579-80, The Court focused on the (1979); 61 L.Ed.2d 220 Rakas privacy Illinois, interest of the n.12, individual as the 143 & protected n.12, fundamental interest by the (1978). & Amendment, 351-54, Fourth id. at That requires two-step analy- formulation Indeed, they standing noted, however, would not have to chal- 7. The court the Fourth lenge the equated general installation because was accom- Amendment cannot be with a plished lawfully “right privacy,” while the canister was that Fourth Amendment possession “protections go simply of the DEA. protecting further” than interests, privacy protections and that often its nothing privacy challenge precluded by “have holding 5. Such to do with at all.” 389 our U.S. at Dubrofsky, 88 S.Ct. at 510. See also in United States Amster- dam, Perspectives Amendment, monitoring on the Fourth law- fully 58 Minn.L.R. traveling public installed in a car on a thoroughfare is not a search. finding We note also that because a of a sup- Fourih Amendment violation results in the argument appellants pression 6. At oral contended that of otherwise relevant evidence under intercepting signal by plane rule, exclusionary society from the Meac- the interests of They any ham cabin was a ques- search. later stated that are affected in Fourth Amendment they only challenging Society’s explicitly were as a search the tion. interest is con- monitoring sidered, however, warrantless after under current Fourth initially by plane, locating analysis. Therefore, detected and that Amendment the courts beeper signal carefully was not a search. In their briefs must review Fourth Amendment they they challenging only questions society’s contended were so interest in law enforce- event, monitoring. any unnecessarily impaired. warrantless In because ment is not See Unit- Michael, monitoring we find no search resulted from the ed States v. itself, fortiori, process banc) locating 1981) (en (Charles Clark, J., specially signal concurring). was not a search.

1320 First, “person has, have sis: exhibited This doing circuit however. In so we [must] (subjective) expectation priva- of an actual- separately questions examined of second, cy,”8 expectation “the [must] is, monitoring. installation and we That society recognize one prepared be is if have first determined of installation ” 361, as ‘reasonable.’ 389 at 88 S.Ct. beeper was in of violation the Fourth J., (Harlan, concurring). 516 at Amendment, second, not, if was the wiretap Outside monitoring. of context Su- Amendment violated preme Court has addressed the Fourth 208, Dubrofsky, United States v. F.2d 581 implications Amendment of the use of other (9th 1978). out, already pointed Cir. As only gadgetry” “electronic once. In Smith only monitoring is at issue in this case. Maryland, supra, the Court that the held Appellants contend that because “pen register,” use of a a device attached to beeper placed they was in chemicals that telephone company equipment that records legal right possess, had a and because the telephone by the numbers dialed on a moni- was monitoring of a non-contraband item toring the electrical impulses caused when private residence, located in a a search has released, the dial is not did constitute a place. They taken argue they exhibit- “legitimate search because there was no a subjective expectation privacy ed of expectation 744, privacy," of 442 U.S. at taking the item into home and that 2582, S.Ct. at in the numbers dialed. Id. at contraband, because the were chemicals not 16, 99 S.Ct. 2580-2583. The Court 741— expectation their privacy of was reasonable. capabilities” pen noted the “limited of While it is true that some courts have held register and the limited nature of the infor- “legitimate” that there is no expectation of pen register. mation elicited from a These contraband, privacy in United States v. distinguish register characteristics the pen 1147, Washington, (7th 586 F.2d Cir. wiretap in Katz which recorded 1978); United Emery, F.2d the “contents” of the conversation. Id. at (1st 1976); 889-90 Cir. 741-42, 99 Supreme 2580-81. The Bailey, 1980) 628 F.2d Cir. yet Court has to address the Fourth (dictum),9 we concede that the appellants’ implications Amendment of the of beep- use expectation of Miroyan States, privacy ers. was reasonable. The See United 439 U.S. question (1978) before us rather whether such a J., (Rehnquist, Justice). Circuit expectation reasonable has been invaded.10 Although speaks addressing the Harlan formulation of the installation of in con- “subjective” expectation an during exhibition traband that was discovered a lawful privacy, “subjec- the actual exhibition customs search. The court noted that because expectation judged by objective package opened tive” lawfully during stan- was a cus- search, Sledge, dards. See United [beep- States v. 650 F.2d toms “the mere insertion of the n.2 any & did er] not violate Fourth Amendment right.” Dubrofsky simply 581 F.2d at 211. did appears danger 9. There to be an inherent not address the effect that the nature of the legitimacy conditioning the or reasonableness person’s expecta- item had on “reasonable” expectation privacy on whether the privacy. tions of rein, item is contraband. Given full such a Also, Washington the Seventh Circuit re dividing line could then used be to limit Fourth lied on the First Circuit’s decision protections by Amendment the nature of the Moore, (1st States v. seized, regardless item of the reasonableness of the method used to it. obtain Would the war- L.Ed.2d 521 at 1154. Moore physical rantless search of residence be rea- hold; indeed, also did so in Moore the occupants “legiti- sonable because the had no placed “legal” was chemicals. 562 expectation privacy they mate” in the heroin F.2d at 112-13. But see United States v. Em kept in the house? ery, (1st 1976) (clear relied, alia, Bailey The Sixth Circuit in inter ly drawing the dis contraband/noncontraband Dubrofsky on our decision in for its contra- tinction). distinction. 628 F.2d at band/noncontraband 942. any Appellants We did not make such distinction note that this court and others regard person’s expectation expectation whether a have held that there is a lessened privacy “legitimate.” Dubrofsky privacy traveling when are vehicles

1321 Dubrofsky we monitor- In held that the Amendment contexts. See v. United States beeper, lawfully pack- a ing Allen, 1282, (9th of a installed in 1980) 633 F.2d 1288 Cir. heroin, “here I age merely of that broadcast (helicopter used to observe sea ranch near package appropriate when “the am” and planes normally coast which Coast Guard opened,” a has been did not constitute over); to or traveled near United v. States Although F.2d at 211. Dubrof- search. 581 Michael, 256, (installation 645 F.2d at 258 of primarily beeper sky tracking dealt beeper on of parked public exterior car car, beeper private in a was taken the into Here, lot). parking appellants no suffered where in residence due course it announced Michael, indignity. v. 645 United States presence package being its and that the slight intrusion, F.2d at The physical opened. 581 F.2d at 211-12. On these by beeper itself, the insignifi- reason of facts we found no search. This was be- cant. Katz has made it clear strict clearly recognized re- cause the “intrusion” property concepts longer law no control.11 presence beeper the sulting from importantly, beeper says More the only Dubrofsky Id. very slight. at 211. com- It nothing “here I am.” reveals about more pared beeper’s operation the to other en- of, in, or contents activities the resi- hancement devices that aid the five senses. Supreme dence. The Court noted in Smith recently Id. at 211 & n.l. The Fifth Circuit Maryland that the wiretap in Katz was comparison. made a similar United See significantly more intrusive than was Michael, 645 F.2d at See also 741-42, pen register. 442 U.S. 99 S.Ct. Note, Tracking, supra, 86 Yale L.J. 1461 Likewise, at 2580-81. there is of a world (noting capable that “because the beeper is wiretap beeper difference between a and a movement, revealing only of location and it that merely identifies location. can as a de- be viewed sense enhancement vice that is no more intrusive tradi- than Although the beeper extends tailing”). tional visual capabilities beyond our senses which of existed at the time of the adoption of degree intrusiveness of sense en- Amendment, Fourth the same said devices can be types hancement of various expectation of such privacy helicopter reasonable has been devices as the used controlling inquiry in other Fourth true sight Allen. It is that the sense of airways 938, open Bailey, (6th or road and are monitored F.2d 628 940 n.4 Cir. It Michael, beeper. See United States v. 645 F.2d stated that intrusion is not if “[a]n de minimis (5th 1981) (en banc) (car); 257 United legitimate expectation it individual’s violates an Bruneau, 1190, (8th States v. 594 F.2d 1197 privacy.” Id. at 940. denied, 847, 94, Cir.), cert. 444 100 S.Ct. 62 disagree with We the Sixth criti- Circuit’s (1979) (airplane); L.Ed.2d 61 United States v. First, Supreme 'cism. Court has cast Dubrofsky, (car); 581 F.2d at 211-12 United See, question e.g., in terms of intrusiveness. Miroyan, 489, (9th States v. 577 F.2d 492-93 741-42, Maryland, 735, Smith v. 442 U.S. denied, Cir.), cert. 439 U.S. 2580-81, (1978) (airplane); L.Ed.2d 243 States v. Additionally, unless there is an “invasion” Pretzinger, (9th 1976) interest, the defendant’s the fact de- (car); Hufford, United States v. priva- expectation fendant reasonable had a Cir.), cy, In is immaterial. order to if it is determine (1976) (car). They L.Ed.2d 614 society recognize for “reasonable” the de- greater expec reason that means there is a expectation privacy, fendant’s de- one must privacy tation of home. This true. degree say termine the of intrusiveness. To that, They point reason then from this conse that an intrusion is not de minimus if it violates quently, monitoring beeper of a in a home is a expectation beg question. is to does moving It But search. from the car to expectation not violate the suffi- monitoring unless it is the home does not make the ciently Monitoring only See also search. intrusive. the home is appellants’ Michael, 1981) expectation search if F.2d at reasonable privacy J., (en banc) (Brown, concurring); is invaded. We hold case that in this id. at 259-60 Clark, J., (Charles specially (both was not. concurring) opinions would found no search in Dubrofsky 11. The Sixth Circuit has criticized public installation of on a car in a problem cases other which have “cast parking lot). in terms of intrusiveness.” walls, through one does not allow to see Particularity A. beeper’s that the sense enhancement consti The warrant authorized a tutes a dramatic increase in one’s surveil glassware search for “chemicals and com But, capabilities. dog’s lance so also does a monly utilized in the of manufacture meth sense of smell enhance one’s senses. Yet amphetamine, parapher and other narcotic dogs

‘the of is as use not treated a search. nalia, notes, instructions, including formu See, ” e.g., Solis, 536 F.2d las, undoubtedly .... This warrant is 1976), 881-83 and United specific enough satisfy general the re Bronstein, States that, valid, quirement to be a warrant must (2d 424 96 U.S. reasonably specific, be rather than elabo (1976). S.Ct. 47 324 L.Ed.2d Accord detailed, rately description in its of the ob ingly, we hold that under the facts of this See, the jects e.g., search. Andresen case the by minimal intrusion occasioned 463, 479-82, Maryland, 427 U.S. lawfully use of the beeper location in 2737, 2748, (1976) (warrant 627 49 L.Ed.2d in stalled a noncontraband item that was upheld fruits, for the seizure of “other in private taken into a residence is not a strumentalities and evidence of crime at Thus, search. no required. warrant was unknown.”) this [time] upon The principle holding which our Despite the specific- warrant’s reasonable rests not beep is without limits. Were ity, object, appellants however, to the fail- er to relate more information than simply ure of the warrant specifically to mention location, its wiretap resemblance to the methylamine, which, canister of Katz would point increase. At some beeper monitoring, was known to be in amount and specificity the information rely sentence, the cabin. They on a taken revealed monitoring and the duration of the context, out of from Coolidge v. New require would particular use Hampshire, 91 29 sense-enhancement device to be characteriz L.Ed.2d 564 Coolidge The issue in ed as a search. See United v. Du plain whether items in view could be brofsky, 581 F.2d impor at 211-12. It is seized without a warrant. In the course of tant to note that the in this case was plurality its discussion opinion stated: only days monitored for two before a search If the initial is upon intrusion bottomed sought. warrant was We approv note with a particu- warrant that fails a to mention Cofer, al the statement in United States v. object, though lar police know its F.Supp. (W.D.Tex.1978), addressing it, location intend to seize then there the question of continued surveil is express a violation of the constitutional lance of unlimited duration: requirement particular- of “Warrants .. . po- cannot countenance the [T]he [c]ourt ly describing things ... be [the] tentially unlimited type duration seized.” beepers]. surveillance Citi- [location U.S. S.Ct. at 2040. This was right zens have a to think that plurality’s said to substantiate the conclu- government will not track them for sion that the plain view exception to months on end resort to the latest qualified warrant rule had to be re- electronic gadgetry. quirement the discovery of the items F.Supp. (quoted at 149-50 with approv be plurality inadvertent. The was con- al Allen, in United States v. 633 F.2d at cerned that exactly officers would know n.5). found, where proceed an item was to be 6. Warrant to Search Meacham location, Cabin the and without warrant seize item, claiming plain that it was in view. Appellants next attack the war- search rant insisting issued March 31 is This concern is relevant to situation invalid for particularity proba- lack in which search pursuant was made ato ble cause. We shall reasonably specific address each of these adequately warrant de- contentions. scribing general terms what the officers we must use re- victions. standard Coolidge did knew was the residence. sufficiency of the evidence to spe- viewing must list in not hold that all warrants support criminal conviction is familiar. agents every cific detail item that know light We view the evidence in the must location. It likely to be found in a certain prosecution and af- most favorable to the change the standard of does not traditional “any rational trier of fact could firm if Here, specificity. apparent it is reasonable the essential elements have found methylamine a canister of included beyond crime a reasonable doubt.” Jackson scope within the of the warrant as “chemi- 307, 319, Virginia, commonly cals ... utilized manufac- (1979) in (emphasis L.Ed.2d 560 methamphetamine.” ture of original). in this The evidence ease Moreover, even if it were law the sufficient. clearly that specifically the warrant had to refer to canister, affidavit, AFFIRMED. the the which supported it, the incorporated warrant and was into ADAMS, Judge, concurring. Circuit canister, travels, the described its its I concur in the decision to affirm these location the in cabin. When a warrant however, convictions. I separately, write

incorporates an affidavit the affidavit for First, two related reasons. I think it specifically lists expected the items be to important to make clear that of one the found, together the warrant and affidavit issues raised appellants namely, the the — satisfy specificity the requirement. United legality of “beeper” warrantless surveil Marques, (9th States v. lance —is considerably more complicated 1979), denied, Cir. cert. 444 U.S. might than be immediately apparent from 62 L.Ed.2d 649 Judge opinion. Sneed’s ap Other courts of Support B. Cause Probable to Warrant peals have faced nearly factual situations and, Having beeper’s held that the identical with the at use under case bar after analyses, the this rational facts of case did not constitute a have arrived at a conclu search, directly sion probable contrary it follows that there was to that endorsed today’s Circuit, majority. cause to issue the The warrant. First in Moore, United States v. (1st the sur Appellants make somewhat 1977), prising argument April that the arrests on (1978), 55 L.Ed.2d 521 the probable search vitiated cause to the cabin Circuit, Sixth Bailey, April police 8. Since the seized them 1980) Eighth F.2d 938 and the Hat and some chemicals at Rock State Circuit, Knotts, in Park, appellants argue police the that the F.2d 515 have held assumed that all should have elements the warrantless a beeper use of locate to operation the had been removed from the noncontraband materials inside private placed cabin and in the mobile home. residence is indistinguishable a war nothing support There is to this contention. rantless search of that same residence. agents It for to was reasonable the believe actually opening Rather than to door paraphernalia that some remained in determine whether certain items were in conspiracy cabin. The members of the had reasoned, side building, the courts accumulating large quantities been agents beepers instead employed gather to chemicals, the lab in the mobile home was exactly the same Consequent information. small, relatively and the indicated agents ly, these courts concluded that April that on the canister was still in they should secured a warrant before though cabin were in even defendants beeper signals monitored emanating from park. at the trailer private areas such Bailey as home. The Sufficiency of the Evidence forth court set its fourth analy amendment Appellants’ sufficiency of the evi succinctly: sis us, argument long dence detain A need not essence, In question before the court whether clearly prepared recog- review of the the law is record shows to as support legitimate evidence nize expec- was sufficient an to the con- individual’s Harlan, (1967), to respect with what Justice in his privacy tation of concurring proper- opinion, stressed that “under the personal he private does in Amendment, gen- Fourth warrants are the ques- ty right possess. he has rule, legitimate eral to which the needs of Beeper surveil- tion is its own answer. may specific law enforcement demand ex- personal prop- lance non-contraband ceptions.” (em- Id. S.Ct. at 517 upon le- erty private areas trenches added). phasis That rep- observation bears gitimate expectations privacy and etition in this case. In both Moore and or seizure within constitutes search Bailey, agents the courts noted that amendment. meaning of the fourth beepers monitored without a warrant even Bailey, supra, 628 feasible, though apparently entirely it There is much analysis commend circumstances, under the to obtain anteced- Moore, Bailey, advanced in the and Knotts judicial ent approval of the surveillances. convinced, however, cases. I am the A similar be conclusion can drawn from the validity of beeper usage warrantless within facts in this case. I find difficult not, believe, Ninth light previous especially given previously Circuit ob- Court, pattern served open suspicious activity decisions involv- question. an ing procurement Bernard, methylamine and In United 625 F.2d 854 phenyl-2-propanone, agents that here rejected this Court a fourth would have been unable to convince a neu- challenge brought by amendment co-defend- tral, magistrate detached that a warrant ant beeper Bernard to the same in the same signals should have been to issued monitor methylamine canister of as involved here. coming from the that was concealed Bernard, alone, While standing does not I in canister. am not unmindful of the fully weighty resolve the ar constitutional many and burdens constraints that have guments presented by appellants upon imposed been law enforcement offi- bar, case at controlling when read in cials, particularly drug-related in investiga- conjunction Hufford, with United States v. Still, light frequency tions. in (9th Cir.), 429 U.S. which the exclusionary rule has ap- been (1976), plied context,1 in the fourth amendment I and United States v. Dubrofsky, 581 F.2d why, fail to understand close cases such Judge As opin Sneed’s this, as a warrant is not obtained when clear, ion this case makes the Ninth prudence clearly would counsel otherwise. Circuit, unlike appeals, other courts of does today’s As result of its pre- decision and not dispositive any consider distinctions be cursors, policemen agents within the beepers tween placed in noncontraband ma legally obligated Ninth Circuit are not planted terial and those in contraband ma acquire installing warrants before and mon- terial, or beepers between pri monitored in itoring beepers, electronic at least under vate areas and those attached to moving circumstances similar those involved reason, For vehicles. I concur in to however, suggest, here. I would day’s decision. future instances warrants nonetheless be Second, I separately write I because am obtained, because, particularly when the concerned, matter, practical somewhat as a Supreme speaks issue, Court on this it con- apparently increasing First, about the ceivably may use of mod- choose to follow the Sixth, beep- ern reconnaissance devices as the Eighth such Circuits rather than this here, er deployed applying without first to a Court. might Such course invalidate magistrate neutral for a warrant. In Katz convictions are based on information States, by beepers.2 According- obtained the use of Rasool, Virgin Cassity, 1. See Government Islands v. 2. But see Cr. No. 1981) J., (3d (Adams, (E.D.Mich. Aug. 1981) (discussed concur- 2181) ring). (declining apply Bailey at 50 U.S.L.W. retroactively to invalidate warrantless ly, that, finding I hope sity trespass. would until the law of the a technical land, majority Ninth stated: Circuit becomes the law of the law enforcement officials in this Circuit effort to decide whether or not a [T]his precautions necessary elsewhere take “area,” abstract, those given viewed in the to ensure that the hard-earned convictions “constitutionally protected” deflects at- they secure will not be set aside.3 problem presented by tention from the this case. For the Fourth Amendment FLETCHER, Judge, concurring: Circuit protects people places. per- What a fully Judge opinion I concur Adams’ knowingly exposes public, son to the even Judge and I concur in the result of Sneed’s office, subject in his home or is not a opinion. protection. Fourth Amendment But Judge separately, Adams writes from the preserve private, what he seeks to as perspective judge of a from a circuit other in an area public, even accessible to the Sitting visiting judge than the ninth. as a may constitutionally protected. be case, of the Ninth in this he of Circuit 351-52, Id. (footnotes 88 S.Ct. at 511-12 course finds himself bound Ninth Circuit omitted). and citations precedent report but nonetheless moved to In the enigmatic most portion opin- of its circuits, that other confronted with the ion, majority concluded that govern- case, facts of this would reach a different ment’s technique surveillance “violated the and, view, result in his for sounder reasons privacy upon petitioner] which justifi- [the Sneed, expressed by Judge than those in his ably using relied while telephone opinion. Id. booth.” 88 S.Ct. at 512. The I write as a Ninth Circuit Judge bound underlying analysis emphasized justifiable precedent Ninth Circuit compels expectations of privacy. Judge result reaches, Sneed but not bound Katz is Although especially noteworthy agree to with his fourth analy- amendment abandoning analysis for based “constitu- sis. tionally protected areas” and for eliminat- ing trespass technical as a Judge requirement for States, Katz v. United Sneed takes search, finding illegal an 347, signifi- it also is 507, 389 U.S. 88 S.Ct. impor- cant for what it left intact. Most (1967), starting as the point for analysis, his continuing tant is relevance of exam- I, as do agree but we do not as to its ining physical characteristics of the area import. part searched as of the fourth amendment in Katz was convicted of petitioner The analysis. Immediately penning after transmitting wagering information in viola- maxim, Fourth protects Amendment “[T]he trial, tion of a federal statute. At people, places,” the majority held that government introduced evidence obtained just protects as the fourth amendment one from the attachment of microphones and apartment, while in a friend’s a business recording devices to the public outside of office, taxicab, or protection the same in- telephone petitioner. booths used occupant cludes the public telephone of a Circuit, This stressing the absence of any Id. 352, Thus, booth. 88 S.Ct. at 511. physical penetration booths, phone into the because the Katz expectation privacy of upheld the admission of the recordings. one, must be a reasonable and because Supreme Court reversed. physical surroundings necessity of form a the Katz reaching decision, In its reasonable, part Court of what appropriate- rejected prior fourth amendment analysis viewing prob- ness of fourth amendment that had single-mindedly focused on “con- in physi- lems the context of the immediate stitutionally protected areas” and the surroundings open neces- cal is not to doubt. Circuit, surveillance good Eighth that was conducted in 3. The faith in a decision rendered

before decision). date of Sixth Circuit argument after oral in this matter and after opinion prepared, joined had been protection Amendment Judge was. In deter- problems One of Sneed’s mining “legitimate expectation whether a analysis completely any that it is void of privacy” cases, of existed in such a nor- expectation discussion of the defendants’ inquiry mative proper. would be privacy in their home. It draws no distinc- tion whatsoever between surveil- 5, Id. at n. 2579 n.5. suspect on the lance street moni- One of the foundations of the fourth toring Contrary him inside his home. to right amendment is the the people “to be view, Judge preclude Sneed’s Katz does not secure in their ... houses.” Unfortunate- fact, analysis; necessary any such in it is ly, Sneed, Judge reviewing fourth expectations determination of reasonable questions, amendment has chosen to bal- privacy under Katz. rights ance of the people to be secure Harlan, concurring Katz, Justice sug- against their homes the needs of law en- gested that the limits fourth amendment Judge opinions forcement. See Sneed’s protection are seldom discoverable without this case and United States Dubrofsky, place. reference to Id. at 88 S.Ct. at Fourth 516. He require- also concluded that two protections amendment not be should erod- emerged previous ments ed, however, decisions: a merely govern- because the person (subjective) must exhibit an actual strong suspicion ment has a as identi- expectation privacy, expectation ty perpetrator of a serious crime. A society must be one that is prepared long Supreme line of Court decisions dem- recognize balancing as reasonable. Id. onstrates that only is undertaken after it is concluded that there has been a Sneed, by Judge As majority noted See, e.g., search. Prouse, Delaware v. adopted Court eventually the two- 653-54, 1391, 1395-96, U.S. 99 S.Ct. pronged analysis of Justice Harlan’s concur- (1979); L.Ed.2d 660 Brig- rence when it decided Smith v. Maryland, noni-Ponce, 873, 878, 95 S.Ct. 735, 740-41, 2579-80, U.S. 99 S.Ct. 2578, 45 (1975); L.Ed.2d 607 Terry Ohio, (1979). L.Ed.2d 220 noting After 1, 16, 20-21, application of the fourth amendment 1879, 20 L.Ed.2d 889 The initial has consistently depended on demonstration determination as to govern- whether “legitimate,” “reasonable,” of a “justifia- or ment’s intrusion on the privacy of one’s expectation ble” of privacy, id. at home constitutes a subject search is not 2579 the Court concluded that Jus- such a balancing subject test. It should be tice Harlan was correct in suggesting instead to careful scrutiny by this court. inquiry Katz requires analysis an Sneed, Yet Judge writing for the court in subjective both objective expectations Dubrofsky, held that the monitoring of a of privacy. quick But the court was tracking device private located inside resi- recognize two-pronged test, itself, search, dence did not constitute a without fully adequate: any special discussion of the privacy inter- For example, if the Government were ests inherent in the home. He reaches the suddenly to announce on nationwide tele- same today. conclusion vision that all homes henceforth would be myself I find position difficult subject to warrantless entry, individuals acquiescing in government’s conduct in thereafter might not in fact entertain this case I because am bound Dubrofsky.

any expectation actual of privacy regard- ing homes, their papers, and . effects. .. subjective expectations [t]hose obviously could play no meaningful role in as-

certaining what scope of Fourth First and holding Sixth Knotts, Circuits See that a

warrantless “pri- surveillance of a vate area” violates the Fourth Amendment.

Case Details

Case Name: United States v. Sammy Brice Brock, United States of America v. Roger Lee Bard

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Feb 18, 1982

Citation: 667 F.2d 1311

Docket Number: 80-1736, 80-1737

Court Abbreviation: 9th Cir.