UNITED STATES OF AMERICA, PETITIONER V. LARRY WAYNE CASSITY, BILLY SWORD AND STEPHEN GORDON LENK No. 83-1393 In the Supreme Court of the United States October Term, 1983 The Solicitor General, on behalf of the United States, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Sixth Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit TABLE OF CONTENTS Opinions below Jurisdiction Constitutional provision involved Statement Reasons for granting the petition Conclusion Appendix OPINIONS BELOW The opinion of the court of appeals after remand (App., infra, 1a-14a) is reported at 720 F.2d 451. The opinion of the court of appeals before remand (App., infra, 15a-24a) is reported at 631 F.2d 461. The opinion of the district court on remand (App., infra, 25a-46a) is reported at 546 F. Supp. 611. The district court's oral pre-trial ruling on respondent Cassity's suppression motion (App., infra, 48a) is not reported. JURISDICTION The judgment of the court of appeals (App., infra, 49a) was entered on October 31, 1983. The government's motion to hold the case in abeyance pending this Court's disposition of United States v. Karo, cert. granted, No. 83-850 (Jan. 16, 1984), was denied on December 23, 1983 (App., infra, 50a). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). /1/ CONSTITUTIONAL PROVISION INVOLVED The Fourth Amendment provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. QUESTIONS PRESENTED 1. Whether the warrantless monitoring of signals from a beeper installed inside containers of chemicals and equipment that law enforcement authorities reasonably believe will be used to manufacture illegal drugs violates the Fourth Amendment when the monitoring occurs while the beeper is located within a home. 2. If so, whether a warrant authorizing beeper surveillance is invalid under the Fourth Amendment because it does not contain a termination date. STATEMENT Following a jury trial in the United States District Court for the Eastern District of Michigan, respondents and co-defendants Terry Gene Hines and Raymond Lee Dean were convicted of manufacturing amphetamine, in violation of 21 U.S.C. 841(a)(1), and conspiracy to commit that offense, in violation of 21 U.S.C. 846. /2/ Respondent Cassity was sentenced to three years' imprisonment, to be followed by a two-year special parole term. Respondents Lenk and Sword were each sentenced to two years' imprisonment, to be followed by a two-year special parole term. The court of appeals reversed respondents' convictions and remanded the case for a new trial, holding that evidence obtained as a result of beeper surveillance should not have been admitted against respondents at trial (App., infra, 1a-14a). 1. The evidence showed that, from April to August 1977, Special Agent John Graetz of the Drug Enforcement Administration posed as a supplier of precursor chemicals and laboratory equipment to Jay Cody, who was alleged to be the head of respondents' drug manufacturing ring (App., infra, 2a). /3/ Agent Graetz installed beepers inside two cans of chemicals and one piece of equipment that he delivered to Cody in July 1977. The beepers were installed pursuant to search warrants issued by a United States magistrate, but none of the warrants contained a provision limiting the period of surveillance. Id. at 3a. Agent Graetz delivered to Cody a container of chemicals containing a beeper on July 11, 1977. By monitoring the beeper's signals, DEA agents traced the chemicals to respondent Cassity's home and then to respondent Sword's home. On July 28, Agent Graetz delivered the two beeper-laden items, which also were traced to Sword's home. On August 11, 1977, the agents ascertained that the beepers had been moved to co-defendant Dean's home. App. infra, 3a. The agents continued monitoring the beeper's signals until August 17, 1977, when they executed a search warrant at Dean's residence. At various times during the period of surveillance, the agents observed respondents and the other co-conspirators enter and leave Dean's house. On three occasions during this period, Cody delivered samples of amphetamine to Agent Graetz. App., infra, 3a. In the course of executing the warrant at Dean's home, the agents seized a complete laboratory capable of producing amphetamine. Although the fingerprints of respondnets Lenk and Sword and co-defendants Dean and Hines were discovered on the equipment, no trace of amphetamine could be found. App., infra, 3a. Prior to trial, respondent Cassity moved to suppress the fruits of the beeper surveillance. He contended that the Fourth Amendment requires the government to obtain a warrant in order to install and monitor beepers, and that the beeper warrants in this case were constitutionally deficient because of the absence of a time limitation. The district court denied the motion, holding that the use of a beeper does not require a warrant because a beeper is merely a substitute for visual surveillance. App., infra, 48a. The court of appeals vacated respondents' convictions and remanded for further proceedings on the suppression issue (App., infra, 15a-24a). Relying on its decision in United States v. Bailey, 628 F.2d 938 (6th Cir. 1980), the court concluded that a beeper warrant containing no time limit does not meet Fourth Amendment requirements, and that suppression of the fruits of the beeper monitoring would be required with respect to a defendant whose legitimate expectations of privacy had been invaded by the monitoring (App., infra, 20a-21a). Because Cassity had filed a timely suppression motion, the court concluded that he was entitled to a remand to demonstrate that his legitimate privacy expectations had been violated by the monitoring of the beeper while it was inside his home (id. at 21a). The court also concluded that a remand for further consideration of the suppression issue was appropriate with respect to the remaining defendants, including respondents, even though they had not moved to suppress the fruits of the beeper surveillance (id. at 21a-23a). /4/ Following a hearing on remand, the district court denied the motions to suppress (App., infra, 25a-47a). Applying Bailey, the court concluded that the legitimate privacy expectations of respondents had been invaded by the beeper monitoring (id. at 27a-38a). The court held, however, that the fruits of the monitoring should not be suppressed because the rule announced by the court of appeals in Bailey should not be applied retroactively (App., infra, 39a-46a). The court of appeals again reversed (App., infra, 1a-14a). It reaffirmed its holding in Bailey that "'beeper surveillance of non-contraband personal property in private areas trenches upon legitimate expectations of privacy and constitutes a search or seizure within the meaning of the fourth amendment'" (App., infra, 7a (quoting Bailey, 628 F.2d at 944)). The court expressed the view that nothing in this Court's decision in United States v. Knotts, No. 81-1802 (Mar. 2, 1983), undercuts that principle insofar "as it applies to monitoring beepers located in areas in which the subject of the search exhibits a legitimate expectation of privacy" (App., infra, 7a, citing, inter alia, United States v. Karo, 710 F.2d 1433 (10th Cir. 1983), cert. granted, No. 83-850 (Jan. 16, 1984)). The court of appeals held that the district court erred in considering the retroactivity of Bailey, which, it concluded, was an issue beyond the scope of the remand order (App., infra, 12a-13a). REASONS FOR GRANTING THE PETITION The decision of the court of appeals in this case raises an important question of Fourth Amendment law identical to one of the questions now before the Court in United States v. Karo, cert. granted, No. 83-850 (Jan. 16, 1984). That question is whether the warrantless monitoring of a beeper violates the Fourth Amendment when the monitoring occurs while the beeper is located within a home or other private area. Both here and in Karo, federal law enforcement agents investigating an illegal drug manufacturing ring monitored signals from a beeper while the beeper was located inside private premises. In both cases, the beeper surveillance had been authorized by warrants that the courts subsequently determined were invalid. Similarly, the courts of appeals in both cases held that the deficiencies in the warrants could not be disregarded because, in the courts' view, the Fourth Amendment is violated by warrantless beeper surveillance if it happens during the course of the surveillance that the suspects take the beeper-laden container into a home or other private premises. Indeed, in its decision here, the court of appeals expressly relied on the decision of the Tenth Circuit in Karo (App., infra, 7a). /5/ The Court should hold this petition pending its decision in Karo. /6/ If the Court concludes in Karo that a warrant is not required to monitor a beeper even if the beeper is taken inside private premises, it should grant certiorari in this case and either reverse the judgment of the court of appeals or remand for reconsideration in light of the decision in Karo. 2. On the other hand, if the Court in Karo holds that beeper surveillance must be authorized by a warrant, the Court should grant the instant petition to decide whether a beeper warrant that contains no termination date is invalid under the Fourth Amendment. In United States v. Bailey, 628 F.2d at 945, the court of appeals held that "a warrant which places no time limit on the search or seizure it purports to authorize is invalid." /7/ The court reasoned that the Fourth Amendment requires a showing "of present probable cause" (628 F.2d at 945 (emphasis in original)), and suggested that the information supporting the issuance of a beeper warrant might become stale over time. In addition, the court expressed the view that "(u) nless the warrant contains a time limit, it cannot assure the reasonableness of the search it purports to authorize" and is therefore invalid under the Fourth Amendment (628 F.2d at 945). The concerns expressed by the court of appeals in Bailey, on which the court below relied in invalidating the warrants in the instant case (App., infra, 20a), overlook the significant differences between beeper surveillance and traditional searches and seizures. The information disclosed by a beeper is extremely limited in scope (a beeper discloses only its own location), and does not change over time. /8/ Moreover, given the limited nature of the information transmitted by a beeper, together with the facts that drug manufacturers characteristically hold on to the chemicals for a considerable but unpredictable length of time before commencing their illicit manufacturing operations and that a further warrant -- based on a showing of current probable cause -- must ordinarily be procured before the agents may search the premises to which the beeper has been traced, a time limitation in the warrant serves no function other than to multiply red tape. CONCLUSION The court should defer consideration of the petition for a writ of certiorari pending its decision in United States v. Karo, and should then dispose of the petition as appropriate in light of that decision. Respectfully submitted. REX E. LEE Solicitor General FEBRUARY 1984 /1/ Under Rule 20.4 of the Rules of this Court, the time for filing a petition for a writ of certiorari runs from the date of the judgment sought to be reviewed except where a timely petition for rehearing has been filed, in which case the time for filing the petition for certiorari runs from the date of the denial of rehearing. See United States v. Healy, 376 U.S. 75, 77-80 (1964); Department of Banking v. Pink, 317 U.S. 264, 266 (1942). Although styled a "motion," the government's request that the court of appeals hold the case in abeyance pending this Court's disposition of United States v. Karo, supra, was in substance a petition for rehearing, seeking reconsideration of the court of appeals' decision following this Court's decision in Karo. See Hines v. Royal Indemnity Co., 253 F.2d 111, 112-114 (6th Cir. 1958) (motion "to set aside and vacate the final judgment in favor of appellee," which "attack(ed) the correctness of the judgment as a matter of law," was "obviously a petition for rehearing under a different name"). See also Fed. R. App. P. 40(a) ("The petition shall state with particularity the points of law or fact which in the opinion of the petitioner the court has overlooked or misapprehended".); Department of Banking v. Pink, 317 U.S. at 266 ("a motion for reargument or rehearing * * * seek(s) to have the Court of Appeals reconsider * * * question(s) decided in the case"); NLRB v. Brown & Root, Inc., 206 F.2d 73, 74 (8th Cir. 1953) ("The purpose of a petition for rehearing * * * is to direct the court's attention to some material matter of law or fact which it has overlooked in deciding a case, and which, had it been given consideration, would probably have brought about a different result".). When we have sought or this Court has granted review of an issue also decided in a particular case by the court of appeals, it is our customary practice to ask the court of appeals to hold its case pending this Court's resolution of the issue, and thereafter to rehear it if appropriate in light of that resolution, in an effort to avoid burdening this Court with a protective petition for certiorari. The government's motion in this case seeking reconsideration was filed in the court of appeals within the time for filing a petition for rehearing. Thus, even though the court of appeals refused to treat the government's motion to hold the case in abeyance as a petition for rehearing (App., infra, 51a), we submit that this Court should treat the motion as a petition for rehearing for purposes of considering the timeliness of this petition. Even were it concluded that the government's motion in the court of appeals did not technically qualify as a petition for rehearing, we respectfully submit that the Court should waive the time limit specified in Rule 20.1 of this Court's Rules and consider the petition on the merits. We note that the time limit prescribed in Rule 20.1 is not jurisdictional in criminal cases. See Stern & Gressman, Supreme Court Practice 389-393 (5th ed. 1978) (collecting cases). The delay in filing the instant petition can cause no prejudice to respondents (since the instant petition would indisputably be timely had the proper label been attached to the government's filing in the court of appeals) and, given the similarity of the principal issue to that presented in Karo, will not result in delay in acting on the petition should the Court, as is its customary practice, hold this case pending its decision in Karo. /2/ The court of appeals affirmed co-defendant Hines' conviction (App., infra, 2a n.1). The government dismissed the charges as to Dean, who is serving a life sentence on a state conviction. /3/ Although Cody was charged in the indictment, he became a fugitive and was not tried together with respondents (App., infra, 4a). Cody was subsequently apprehended and pleaded guilty to the conspiracy charge. /4/ In so concluding, the court of appeals expressed the view that in the circumstances of this case, the interests of finality underlying the rule that suppression claims are deemed waived unless raised prior to trial (Fed. R. Crim. P. 12(b)(3) and (f)) would not be jeopardized by appellate review of the remaining defendants' claims (App., infra, 23a). Although we disagree with the court's determination on the Rule 12 waiver issue, we do not seek review of that determination here. /5/ By the same token, the Tenth Circuit in Karo relied on the decision of the Sixth Circuit in United States v. Bailey, supra, in reaching that same result. United States v. Karo, 710 F.2d at 1439-1440. /6/ We are sending copies of our petition in Karo to counsel for respondents. /7/ The court based this holding on a portion of this Court's decision in Berger v. New York, 388 U.S. 41, 59-60 (1967), and on its prior decision in United States v. Lamonge, 458 F.2d 197 (6th Cir.), cert. denied, 409 U.S. 863 (1972). /8/ Of course the location in which the chemicals are stored may, and typically does, change over time as the conspirators employ counter-surveillance methods, but the beeper still discloses only the single piece of information as to its location. In contrast to a conventional search for contraband or other evidence at a location that can be identified to the magistrate in advance, as to which the concept of staleness has obvious relevance, the sole purpose of beeper monitoring is to keep track of the location of the container, a matter as to which staleness concepts have little utility. APPENDIX APPENDIX MATERIAL IS NOT AVAILABLE ON JURIS.