United States v. Karo

PETITIONER:United States
RESPONDENT:James Karo, et al.
LOCATION:

DOCKET NO.: 83-850
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Tenth Circuit

CITATION: 468 US 705 (1984)
ARGUED: Apr 25, 1984
DECIDED: Jul 03, 1984

ADVOCATES:
Mr. Andrew L. Frey – on behalf of the petitioner
Charles P. Roberts, III – on behalf of the respondents
Charles Louis Roberts – on behalf of the respondents

Facts of the case

Defendants James Karo, Richard Horton, and William Harley ordered fifty gallons of ether from a government informant, to be used to extract cocaine from clothes imported into the United States. Carl Muehlenweg, the informant and owner of the ether, gave consent to the police to install a tracking device into one of the cans containing the ether before delivery to the defendants.

Question

Does the installation of a tracking device into a container, with the permission of the original owner, constitute a seizure within the meaning of the 4th Amendment when the container is delivered to a buyer having no knowledge of the tracking device?

Warren E. Burger:

We will hear arguments next in United States against Karo.

I think you may proceed whenever you are ready, Mr. Frey.

Mr. Andrew L. Frey:

Thank you, Mr. Chief Justice, and may it please the Court, this case is here on writ of certiorari to the United States Court of Appeals for the Tenth Circuit.

It gives the Court the opportunity to revisit some issues that it considered last year in connection with the use of a very important law enforcement technique, the beeper.

Now, the case began when DEA agents investigating drug manufacturing activities in Albuquerque, New Mexico, through a course of investigation discovered that a gentleman named Carl Muehlenweg was acting as a front to acquire chemicals for certain illicit drug manufacturing operations, and they searched Muehlenweg’s premises, and Muehlenweg agreed to cooperate with them in further investigations.

And some time thereafter he advised them that certain individuals had through him placed an order for 50 gallons of ether to be used in the process of extracting cocaine from clothing.

The agents with the consent of Mr. Muehlenweg and pursuant to a court order which was later held to be invalid secreted in the bottom of one of the containers or actually manufactured a duplicate container of ether and secreted a beeper, transmitter in the bottom of the container.

This was picked up by respondent Karo, who was followed by visual and beeper surveillance to his house.

Later that day the signal was no longer coming from the area of Karo’s house, but the container or the beeper signal, at least, was located at respondent Horton’s house, and the agents identified the general vicinity with the beeper and then walked by the outside of Horton’s house and were able to smell the ether emanating from somewhere on the property.

Warren E. Burger:

Let me back you up a moment, Mr. Frey.

When the device, the beeper, as you call it, was placed in the drum, was it placed with the consent of the owner of that drum?

Mr. Andrew L. Frey:

It was placed with the consent of the owner at that time, although of course it was known that it was going to be delivered to other persons in the future, but at the time there was consent.

In any event, whether or not there was consent I don’t think would be material here, because the invasion of the drum at that time did not invade any property interest or any privacy interest of any of the respondents, at that time.

But there was in fact consent.

William H. Rehnquist:

Mr. Frey, supposing you carried that to a more extreme situation.

Supposing the government is very anxious to monitor the movements of a very suspected big criminal and they simply go to the men’s clothing store where he shops and with the agreement of the salesperson have a beeper put in whatever tie he buys.

Now, obviously that is a more extreme situation than this, but is the logic much different?

Mr. Andrew L. Frey:

No, I don’t think the logic would be much different.

The issue in this case, and the Court of Appeals didn’t suggest that there was any Fourth Amendment violation in the installation by itself.

It was only the subsequent delivery of the container that contained the transmitter, which in their view gave rise to a Fourth Amendment problem.

In our view, it is the monitoring of that transmitter that gives rise to a Fourth Amendment issue, and not the mere silent presence of it.

William H. Rehnquist:

Not the installation.

Mr. Andrew L. Frey:

I don’t see how without the monitoring you have either a search or a seizure that is regulated by the Fourth Amendment.

You acquire no information from merely installing a dead or silent beeper.

It is of no value to you whatsoever.

So, in fact, suppose that the men’s clothing store on its own had sewn this in their customer’s tie and then had called up the FBI and said, we put a beeper in the tie.

He has come and picked it up.

If you want to follow him around, use the beeper.

Please feel free.

In my view, that would pose exactly the same Fourth Amendment question, and therefore I don’t think it’s the installation, even though that would have been a private installation of the beeper.

Mr. Andrew L. Frey:

I think it’s the monitoring which may or may not constitute a search under the Fourth Amendment.

John Paul Stevens:

Does that mean, Mr. Frey, that it would also be precisely the same issue if after he purchased the tie the government installed the beeper?

Mr. Andrew L. Frey:

Well, it might be necessary at that point for them to seize his property or search his property.

John Paul Stevens:

Well, he checked his coat in a cloakroom somewhere, and they stuck the beeper in the coat while it was in the cloakroom.

Would that be precisely the same issue we have today, or would it be a different one?

Mr. Andrew L. Frey:

I think that would be essentially the same issue.

That is our principal reliance on this point about the installation.

It is not that there was consent to the original installation, because that only, that addresses the question whether the original installation was itself a search or a seizure.

If we wanted to install a transponder in somebody’s aircraft and we had to open the door of the aircraft, climb in, and fiddle around with the radio equipment, that would be a search of the interior of the aircraft which would be regulated by the Fourth Amendment.

If we had consent, it would be a valid search.

But the real question in this case is whether we acquire information or seize property at some point.

John Paul Stevens:

I am just trying to isolate the issue.

In your view, the only issue is whether it is okay to listen to the beeper.

The manner of installation, unless there is something–

Mr. Andrew L. Frey:

Well, I don’t see how the… unless the installation is itself a search or seizure that might violate the Fourth Amendment rights of the individual, then I fail to understand–

John Paul Stevens:

–Supposing they put a microphone on the tie.

That would also not raise a Fourth Amendment question until they listened to it.

Mr. Andrew L. Frey:

–Not until they listened to it.

Not if they didn’t listen to it.

Nothing would be a fruit of that action.

I mean, we are talking about suppressing evidence here.

There has to be a fruit.

There can only be a fruit of this kind of technology if you listen to it or take advantage of the signal.

So I don’t… I see that issue as a red herring and not the real problem of substance, if there is one in this case.

I wanted to just follow the course of the investigation a little further, because I think it is typical of these drug manufacturing cases and useful for the Court to appreciate it.

After it was at Horton’s house, which was the second premises, it was then… a couple of days later they walked by.

They no longer smelled ether.

They then used the beeper to determine that it had been moved at or near the premises of Horton’s father, and later that day the signal was no longer coming from that vicinity, and the beeper was then traced to a set of storage lockers in Albuquerque, which I gather are walk-in type storage lockers that people can rent for long periods of time.

The particular locker in which the ether was located was identified by smell by the agents walking and then by a conversation with the manager of the storage locker which ascertained that Horton and perhaps Harley had… were the renters of this particular locker.

The agents then obtained a court order to install an entry tone alarm in the door of this locker which would warn them when the door of the locker was opened, and they did install such an alarm, but it malfunctioned, and about a week later they got a call from the manager of the storage lockers who said, by the way, these fellows have taken the stuff out of the storage locker.

Mr. Andrew L. Frey:

So again using the beeper, they tracked the container to another group of storage lockers, again identified the particular locker by smell and by interviewing the manager of the locker.

This time they placed… they rented a locker which I guess was opposite from the one that the respondents were using and put a TV monitor on there focused on the door of the storage locker containing the ether, and the ether sat there for about three and a half months at this point, and then respondent Rhodes, who is the only one of the defendants not to prevail in the Court of Appeals, arrived at the locker in Horton’s pickup truck, emptied out the contents of the locker, drove to the vicinity of his residence, picked up some other things, and then went to Taos, New Mexico, which I think is about 150 miles away, followed by visual and beeper surveillance, to the ultimate destination.

The agents then surveilled this destination.

In this case they used the beeper in the course of their surveillance actually to determine that the containers were inside the residence in Taos, and during their surveillance they saw at one point that all the windows were open, although it was a very cold and windy day, and they knew from that that the ether was actually being put to use.

They then procured a conventional search warrant from the District Court, executed a search, and seized cocaine, marijuana, laboratory equipment, and other items.

Now, the District Court found that the original order that had been sought to authorize the beeper surveillance was invalid because it had falsely represented that Muehlenweg, the informant, was a target of the investigation, and that without the false representations, the warrant failed to show probable cause, and the court held that probable cause and a warrant is required for the use of beeper surveillance.

The government appealed to the Court of Appeals.

We did not challenge the ruling on the validity of the warrant, but rather we took the position which we take today that no warrant is necessary for the use of this particular kind of beeper surveillance.

The Court of Appeals generally affirmed the decision of the District Court, and it found both that the installation and delivery of the beeper container itself violated the rights of the transferee to be free from unreasonable searches without a warrant, and that the monitoring of the signals emitted by the beeper is itself a search if it happens at the time of the monitoring that the beeper-laden container has been taken into private premises that would not be subject to a conventional search without a warrant based on probable cause.

Now, I wanted to say a few words about what beepers are and their utility in law enforcement, and I thought for the… I know the Court was very curious during the Knotts argument, so I had the DA supply me with a beeper just so that you can see what it looks like.

It is… I understand that it is installed… these are batteries.

This is the transmitter.

And it is packed in styrofoam in this way and put in the false bottom of a container, as in this case.

This is not the beeper that was used in this case, but it is similar.

It is actually a little smaller, I am told, than the one used in this case.

John Paul Stevens:

Mr. Frey, was the beeper actually put in evidence in the case?

Mr. Andrew L. Frey:

I’m not sure that it was, and I don’t rely on any conclusions.

It is just to satisfy the curiosity that I thought the Court exhibited during the Knotts argument.

All right.

This is an FM radio transmitter.

It emits a signal that allows the beeper to be located by the use of appropriately designed receiving equipment.

Now, this equipment cannot pinpoint very precisely the location of the signal coming from the beeper unless you get quite close.

There are basically two kinds of uses for beepers.

One is attaching them to vehicles to follow the vehicles, aircraft, or so on, on the highway, and the second is implanting them in containers, as in this case, as in the Knotts case.

There it is usually done in drug investigations, but it could be used with explosives or containers of firearms that are suspected to be exported or other kinds of containers that would not be likely to be opened and have the beeper revealed prematurely.

The essential purpose of the beeper is to facilitate the process of surveillance of the movement of cars, chemicals, or other containers that are suspected to be involved in illicit activities.

Basically it is a substitute for the human eye in following these movements, but it is tremendously valuable both in enabling a surveillance to be conducted effectively with limited personnel resources and in generally reducing the danger that the surveillance will be detected by the suspects.

Byron R. White:

In this respect, Mr. Frey, when you say it is really just a substitute for the human eye, could this can be taken out of a house and put in a car in a manner that could not have been visually detected from the sky or from–

Mr. Andrew L. Frey:

Well, I suspect it could, and I do plan to get to that when I talk about the question of whether this case is like or unlike Knotts, but I think–

Byron R. White:

–So that you would say that we should judge the case as though this beeper had been put in… a little tiny beeper had been put into something that could go into somebody’s pocket.

Mr. Andrew L. Frey:

–Well, I am not sure that you should do that, although I think at the end of the conceptual analysis I probably would say that, but here we are dealing with a five-gallon container of ether that–

Byron R. White:

But it is something that somebody could put in or take out of a house without your knowing it, without your being able to see it.

Mr. Andrew L. Frey:

–It would be possible for them to do that.

We would be able to see that they were leaving the house.

We might not be able to–

Byron R. White:

But you wouldn’t know whether the can was in the car or not.

Mr. Andrew L. Frey:

–Well, I will–

Byron R. White:

All right.

Except by the beeper.

Mr. Andrew L. Frey:

–Yes.

Thurgood Marshall:

Mr. Frey, on this particular point, I assume that considerable time was made in preparing for this whole thing by the government.

Mr. Andrew L. Frey:

Yes.

Thurgood Marshall:

Right?

Well, why couldn’t they some time in that period of time have gotten a warrant?

Mr. Andrew L. Frey:

Well, they could have, and they did, and the warrant happened to be no good in this case.

I think that our concern, as I hope to explain somewhat later, is not that in this case they couldn’t have gotten a warrant.

I mean, they could have gotten a warrant in this case.

The problem that fouled them up in this case was that they were concerned about the safety and the secrecy of the informant’s status, and they chose what turned out to be an ill-advised means of attempting to protect against the ultimate disclosure.

Thurgood Marshall:

You mean they couldn’t trust a federal judge?

Mr. Andrew L. Frey:

Well, I think their concern, and I think this is a concern which this Court has not visited, and maybe one day a case will arise about what the appropriate procedures are for protecting the identity of a confidential informant where at some point down the road there is likely to be disclosure to defendants in the event a criminal case comes, for instance, of the contents of an affidavit for a search warrant.

Now, I think that probably the procedure that should have been used here was to make an accurate description in the search warrant and file it under seal, but at some point down the road you can be sure that the defendants would have demanded the right to see it.

Now, in this particular case, of course, Muehlenweg’s identity as an informant was disclosed at the suppression hearing, but there is a concern.

I don’t think that the action of the agent and the assistant U.S. Attorney was outrageous in this case, even if in retrospect we can say it was ill-advised, but the real concern about requiring us to get a warrant is not so much that we can’t do it, although I don’t think it performs a very useful function, as I will get to later, but that there are classes of cases in which the use of the beeper is very important but we don’t have probable cause, but only a reasonable suspicion of criminal activity.

So that if you are… the holding that a warrant is required is a holding that beeper surveillance cannot be employed on the basis of reasonable suspicion of criminal activity, I think that is our practical concern.

Sandra Day O’Connor:

Mr. Frey, I am still a little confused about the argument.

Now, to instal a beeper in someone’s property without consent as you had here to enter that property to instal it does not in your opinion give rise to any Fourth Amendment concerns–

Mr. Andrew L. Frey:

No, of course it does.

Sandra Day O’Connor:

–of need for a warrant?

Mr. Andrew L. Frey:

No, of course it does, and that was… I thought… I tried to make that point in response to Justice Stevens.

If we had to enter somebody’s property to instal the warrant, that entry would be a search… I mean, to instal the beeper, and that search would require a warrant.

Sandra Day O’Connor:

And there was an entry in someone’s property here, but you had consent at the time?

Mr. Andrew L. Frey:

Well, that’s correct, yes.

Sandra Day O’Connor:

That is your position?

Mr. Andrew L. Frey:

It was not any of the respondents’ property at the time it was entered.

Sandra Day O’Connor:

But you would think that someone could… that you could install with consent of the storekeeper a beeper in clothing that is to be sold to someone else, and that that initial consent would suffice thereafter?

Mr. Andrew L. Frey:

I don’t think the action would be a search or a seizure that is regulated by the Fourth Amendment, and I don’t think it would have any evidentiary fruits unless the beeper were listened to, but I certainly agree that if we have to go into somebody’s private property for purposes of installing a beeper, as in the Dalia case where an entry had to be made for purposes of installing the bug, that, of course, is a search, and unless there is a warrant that authorizes it, it would be invalid.

I just wanted to make the point before I get back to Justice White’s question, which I do want to address, that this case is typical in demonstrating the value of the beeper in illicit drug manufacturing investigations, because people involved in such activities often proceed very cautiously with various kinds of countersurveillance activities, which include, as in this case, moving the containers to seven different locations and delaying their actual… actually putting them to their illicit use for a period of four and a half months.

Now, effective investigation and apprehension in this case would have been as a practical matter impossible even though as a theoretical matter if we were willing to assign 100 agents to the task for a period of four and a half months we could have done it, but with the beeper, a handful of agents who can also do other things at the same time are able to conduct an effective investigation which led to the discovery of a serious crime.

Now, I would like to get to the question about whether this is or is not any different from Knotts, because our position is that this case is not analytically different from Knotts, and that what happened here was not a search.

Now, the point essentially that we want to make is that Knotts established that to use the beeper to ascertain the location to which a container has been taken over the public roads is not a search at all regulated by the Fourth Amendment.

Well, in this case, the beeper was used for that purpose.

That is, the information that we got that was relevant to this investigation had to do with the movement from place to place on the public highways.

Now, Justice White points out that it is possible that some kind of shell game could be attempted to be played by the suspects–

Byron R. White:

Well, Knotts might get you into the first… might warrant your tracking the–

Mr. Andrew L. Frey:

–We track it to the first house.

Byron R. White:

–to the first house, but from there on–

Mr. Andrew L. Frey:

And then if we don’t have a beeper we station an agent outside the first house.

Byron R. White:

–Yes.

Mr. Andrew L. Frey:

And the agent, incidentally, knows as much as the beeper tells us about the presence of the containers on or in the property.

Byron R. White:

He knows that the can is in that house.

Mr. Andrew L. Frey:

Or in the vicinity.

Keep in mind that in this–

Byron R. White:

He knows validly or he is entitled to know that it is either in the house or close by.

Mr. Andrew L. Frey:

–He is entitled to know that, and he is entitled to watch the house.

And if a truck leaves that he thinks has the containers, he is entitled to follow it to its next destination.

Byron R. White:

Yes, but he doesn’t know that–

Mr. Andrew L. Frey:

Well, that is all right.

Byron R. White:

–Any automobile that leaves, he doesn’t know whether the can is in it or not.

Mr. Andrew L. Frey:

He may not know without the beeper, but he can follow or agents can follow every one of them until finally one of them arrives at the laboratory site where by other observations they are able to determine that there is probable cause to conduct a conventional search and to secure a warrant.

So, even in these cases, agents stationed outside each of these properties waiting until somebody leaves who might be carrying ten five-gallon cans of ether or one five-gallon can of ether… it could be accomplished by a visual surveillance.

Mr. Andrew L. Frey:

Now, another point that I wanted to make is–

John Paul Stevens:

Well, Mr. Frey, let me cut you off there if I may.

Don’t we have to assume that sometimes a beeper is going to be more effective than visual surveillance?

That is the whole point.

Mr. Andrew L. Frey:

–Oh, absolutely, and I–

John Paul Stevens:

That if you didn’t have a beeper, they would drive a lot of cars in and out, and you wouldn’t know which one the can is in.

Mr. Andrew L. Frey:

–No, but you see, the argument that is being made to which I am responding is not quite a conceptual argument.

I mean, I begin by saying we trace the beeper container to the first premises.

We station agents outside.

When the truck loaded with these containers goes to the next premises, we follow it, and so on and so forth.

Now, Justice White says, well, maybe we won’t be able to tell what is in the truck.

The truck may be a closed truck.

It may be in the trunk of a car.

John Paul Stevens:

And there may be 35 trucks that pull in and out before you know which one you want to follow.

Mr. Andrew L. Frey:

There may be.

There may be, but conceptually nothing has changed.

That is, we are still using the beeper to follow vehicles on the open highway, and what the Court said in Knotts is the fact that–

John Paul Stevens:

But you know which one to follow, which you wouldn’t know visually.

So you have got to assume you are doing something useful here.

Mr. Andrew L. Frey:

–Oh, of course we are doing something… we are doing something terribly useful, but the point that I am making here is that what Knotts said was the fact that we are more efficient, even a great deal more efficient in doing what we could otherwise do through surveillance of the public streets and highways does not affect the Fourth Amendment inquiry as to whether you have a search.

Warren E. Burger:

There was a reference a few minutes ago, Mr. Frey, to the fact that if you put hundreds of agents on it, if you had hundreds of agents, which in theory and probably in practice you could do if it was a big enough drug operation, you could follow every one of the 35 cars 24 hours a day.

Mr. Andrew L. Frey:

In theory we could do that.

Byron R. White:

That doesn’t get you into the second house, Mr. Frey.

Mr. Andrew L. Frey:

But what… but we are not–

Byron R. White:

Suppose you follow six trucks and they go to different houses.

You put an agent outside of each one, and using the beeper, you find out that it is in one house, although you could never… visually you could never tell that it was in that house, and then you call off all the dogs on all the other houses and you concentrate on that house.

You then know something that is in that house you wouldn’t know without the beeper and couldn’t have known.

Mr. Andrew L. Frey:

–Well, it is possible that that is true.

Whether that changes it from the fact that the beeper is being used to track the movements on the highway, I am not certain, but I wanted… my time is running short.

I wanted to make a point.

Mr. Andrew L. Frey:

The fact that it is in the house which was so critical to respondents’ argument to the Court of Appeals analysis first of all overlooks the fact that we don’t know that it was in the first three houses at all.

There is no evidence in the record.

The only house or even storage locker that we learned it was in by use of the beeper was the ultimate destination in Taos, and as to that, that piece of information as to whether it was in or out of the house was wholly immaterial to the probable cause showing and the warrant which was based on informant’s information that that was the location, the open windows, and the fact that the ether had been taken there–

Now, in your example we don’t ever have to train the beeper on the house to find out what is in the house, because each time a car leaves we can follow that car, check with the beeper whether the container is in that car.

Now, we may be searching that car, something for which we ordinarily don’t need a warrant, or we may not be searching that car.

Byron R. White:

If you have probable cause.

Mr. Andrew L. Frey:

If we have probable cause.

For a conventional search.

And I did hope to talk some about the point which is much more important in the real world, which is what the regime of regulation would be if you held that this was a search, because what is important to us is the ability to use this technique in circumstances where a chemical company calls us up and says we have a very suspicious purchase of ether or chloroform or some chemical precursor from somebody we don’t know and we are suspicious.

This is probably not probable cause that would be enough to justify us getting a warrant to search the house of the person if we followed them to that place where they took the container, yet it is enough to warrant an investigation, and in Adams against Williams the Court said the policeman shouldn’t just shrug his shoulders and go away, that the only effective means of investigation in this circumstance, the most effective means is the use of the beeper.

It has a very limited intrusion, if any, on people’s privacy, and it seems to me when you balance that intrusion against the value to law enforcement, a Terry kind of standard is quite appropriate, and I just would refer to Justice Brennan’s concurring opinion in Jacobson where he made precisely that point.

There was some concern about not having any Fourth Amendment regulation, but he suggested that you could allay those concerns by having a regime of regulation that requires reasonable suspicion before a technique of limited intrusiveness can be used, and that would accomplish in the real world the purposes that we need.

I would like to reserve my remaining time for rebuttal.

Warren E. Burger:

Very well.

Mr. Roberts.

Charles Louis Roberts:

Mr. Chief Justice, and may it please the Court, at the oral argument in this Court’s prior beeper case of United States versus Knotts, Justice O’Connor asked Alexander Frey of the Solicitor General’s office whether a beeper which pinpointed an object in a barrel inside the premises was a search.

He said at that time that that was a different case and a lot stronger case for it being a search.

Justice O’Connor then pursued her line of questioning to ask if the beeper pinpointed an object within the bedroom of a house, would that be a search.

Mr. Frey said yes.

He didn’t say yes.

He said, that could be a search.

And that is the case that we have before us today.

In Knotts, the government took pains to point out and this Court took equal care to note that this was a very limited use of the beeper that they were using in Knotts.

It was not a 24-hour surveillance of any citizen.

It did not go into any protected area, into any home.

That does not–

Byron R. White:

Well, but don’t you agree that under Knotts, under the theory of Knotts, you could legally know that the… at least that the object you were tracking had arrived at a particular house, the first house?

If you could have seen the object going into the house, you would know it was there, and until it left, you would know it was there, whether you had a beeper or not.

Charles Louis Roberts:

–Unless the installation was unlawful.

Byron R. White:

Yes, I understand.

Charles Louis Roberts:

If the installation was lawful, you could see it.

Byron R. White:

Yes.

Charles Louis Roberts:

I don’t believe that that is the case in this particular instance.

I have looked at the record just briefly on Page 54 of the joint appendix, and if one looks at that, it doesn’t say whether they saw the cans being taken inside.

Byron R. White:

No, but could they have?

Charles Louis Roberts:

It is perhaps possible, perhaps possible not, because they seem to be following a car which they find out later did not have the cans in it, and then later discover–

Warren E. Burger:

That is just human error, though, isn’t it?

That was just human error.

Charles Louis Roberts:

–Yes.

Beepers don’t make those kind of errors.

Byron R. White:

Yes, but if you could have… you possibly could have seen, if you had been following the right car visually, you possibly could have seen the can arrive at the first house, but from there on it is another question.

Charles Louis Roberts:

Yes, but I think that even as… like I said, the record here, we are not… it is not clear whether they saw it arrive at the first house.

They saw it park in front and then leave, and then they are following the car, and later with the beeper say, they must have taken it off, and it is at this address.

Warren E. Burger:

Let me try a hypothetical on you, Mr. Roberts.

Suppose when the ether company called the police, the agents, and the police went and developed, just as they did here, they arranged with the supplier of the ether to have one of the agents, an undercover agent be put on the payroll of the ether company, and then had him go to these purchasers and persuade them, assume that he persuaded them to take him in as a partner in this enterprise, and he would see to it that they got all of the ether and whatever else that they wanted, but meanwhile he is an undercover agent.

He is in the house.

He is somewhat more animated than… he is a very animated beeper, isn’t he?

The beeper makes… transmits some sounds, but this fellow can transmit a good deal more.

Charles Louis Roberts:

Yes.

Warren E. Burger:

What do you say about that invasion?

That is quite an invasion of privacy, isn’t it?

Charles Louis Roberts:

Yes, and in fact–

Warren E. Burger:

Put a man right in your operation.

Charles Louis Roberts:

–That is true, but as Mr. Frey said in the oral argument in Knotts, one can suspect a disloyal agent or a disloyal friend, and one is held to suspect that, but one does not suspect a disloyal can or a disloyal wristwatch or whatever.

There is just no knowledge.

If one exposes his activities to an undercover agent, he does so willingly.

None of these respondents–

Warren E. Burger:

That potential for suspicion is certainly there, but that is a human judgment to be made by the people in this enterprise, but now the undercover man is in the operation part-time in and out, and by walkie-talkie and other means he is communicating with the agents all the time, and he is not suspected.

He is in the house.

He is telling them everything about their private affairs.

Warren E. Burger:

Unconstitutional?

Illegal?

Charles Louis Roberts:

–No, Your Honor.

I believe the cases say that if anybody invites any person into one’s house, that that is legal.

Warren E. Burger:

Even though he in effect is a concealed beeper himself?

Charles Louis Roberts:

Yes, Your Honor, but it is just the fact that there is no… that there just really isn’t a reasonable expectation of privacy, and I think the government will admit this, or did it in Knotts, that one would think that every object that one has is working for the government.

At least that expectation doesn’t exist now in the citizens of the United States.

It may later.

Thurgood Marshall:

If I were you, I wouldn’t operate on the theory that there is not an electronic device that can tell when a beeper is around.

Charles Louis Roberts:

There perhaps could be those devices one day and whatever.

Thurgood Marshall:

No, it is in existence now.

Charles Louis Roberts:

But in briefly stating the position of the respondents–

Sandra Day O’Connor:

Mr. Roberts, I gather that the information that this type of beeper gave was only a general signal that described the general vicinity of the beeper, maybe inside, maybe outside the house.

I take it it was not the kind of instrument that could identify specific locations within the house or whether the package was opened or closed or anything of that kind.

Charles Louis Roberts:

–Justice O’Connor, that is not in the record.

In other words, the capabilities of the beeper was not discussed at any point.

We don’t know whether they could have or could not have by using two monitors and triangulating, whatever.

We don’t know.

Byron R. White:

Well, didn’t they use it at the final house to identify where the beeper… that the beeper was actually in that house?

Charles Louis Roberts:

They, at that particular moment when they want the search warrant, they get very specific.

It is at that house.

Yes, Your Honor.

Byron R. White:

Because of the beeper.

Charles Louis Roberts:

Because of the beeper.

Byron R. White:

They were close enough.

Charles Louis Roberts:

The government in this case went under the policy of United States Attorney’s Office in the district of New Mexico to obtain a judicial warrant.

The government in this case treated this as a search.

They went and got a warrant, and if they had not lied in the warrant, we probably wouldn’t be here today, but instead of being embarrassed, they are here asking for a new exception to the Fourth Amendment.

In trying to avoid the Fourth, they make four basic arguments.

First, that beeper transmissions, even within protected areas, are not searches.

Charles Louis Roberts:

Secondly, that a reduced expectation of privacy, that there is somehow a reduced expectation of privacy in containers and areas they enter.

Third, that a new exception to the Fourth Amendment should be created that would require only reasonable suspicion.

And fourth, that even if probable cause is required, a warrant should not be required.

Now, in dealing with the fact that it is not a search, I think it is very important to distinguish between limited capability and limited information, and limited intrusiveness and limited information.

They actually put a government device inside your container.

They actually put a government device inside your home.

The intrusion is serious.

Now, the information that that beeper can convey is limited, but that is not the same thing.

Warren E. Burger:

Do you think it is the same as Irving against California in that sense, do you?

Charles Louis Roberts:

I am not that familiar with Irving, Your Honor.

Warren E. Burger:

That is where police actually placed the electronic equipment in the home.

Charles Louis Roberts:

By surreptitious methods?

Warren E. Burger:

Yes.

Charles Louis Roberts:

Yes.

I think it would be that way, but–

Warren E. Burger:

They didn’t send it in by an inanimate object like the can here.

They sent people in to attach these things.

Charles Louis Roberts:

–Yes.

Warren E. Burger:

So you think it is the same either way.

Charles Louis Roberts:

Yes, and I don’t think that anything has turned… any search has turned on the limited information gathered.

In other words, if we send a deaf and blind constable in to search, I believe the Fourth Amendment fully applies, even though he is capable of learning very little.

The limited information is what they really have, not limited intrusiveness.

And there is also the limited capability, which I said is not in the record.

The Tenth Circuit found that beeper transmissions did give law enforcement information that they never would have gotten even if they had had that hypothetical army of surveillance agents they continue to refer to.

It also has all of the earmarks of–

William H. Rehnquist:

Was the Tenth Circuit specific in that regard, Mr. Roberts, as to what information they would have found through the beeper that they couldn’t have found through the hypothetical agents?

Charles Louis Roberts:

–I don’t believe that they were specific and except the fact that they said that several times that the beeper was lost and would never have been found again save for the beeper.

William H. Rehnquist:

You mean the can was lost?

Charles Louis Roberts:

The can was lost four or five times, and when the can is lost and they are going all over the city of Albuquerque, and as this Court must realize, this invades five or six homes, depending on how someone looks at it, for over five months.

William H. Rehnquist:

Of course, the can was lost in Knotts, too, for a period of time during the trip from St. Paul over to Wisconsin.

Charles Louis Roberts:

I think that was a momentary loss, and there were attempts to make visual surveillance at the same time.

In this case, it was lost for days.

Warren E. Burger:

What’s the difference between a loss of six hours and a loss of six days, as a matter of constitutional law?

Charles Louis Roberts:

I think constitutionally that when you get into that large of loss, you are absolutely relying on the beeper.

The government could plausibly argue that if we had gone a little faster down the road, we would have found the same things and seen the same, and that it may be just helping us a little bit.

In this case, an agent standing there knowing that the beeper isn’t where he saw it was last looks over the city of Albuquerque and he is not… his senses aren’t being enhanced by the beeper.

He has no idea.

His senses tell him nothing.

The beeper tells him exactly where it is.

But also in dealing with the issue that agents could have seen all of these things as one has already been pointed out today, there is a possibility of vehicles leaving places, leaving places, leaving places.

Even with an infinite army of agents out there surveilling, it is entirely possible that it could be missed, and secondly, there is a situation of where there wouldn’t be probable cause at the end of it.

You would have 400 possible locations of the beeper, and you would have to say to a judge there is a 100 in 400 chance that it is in this place.

Now, I don’t believe that equates with probable cause, so the beeper–

William H. Rehnquist:

I don’t think the government is arguing that just that kind of surveillance would form probable cause.

I think they figure, as I understand it, they would have to have an agent probably at every one of those 400 destinations to see if there were added reasons to support probable cause, because if having the container in your possession is probable cause to search or to arrest, then they could have simply picked up the guy or had a search warrant issued for him when he got the can in the first place.

I think that that is true, but I think that the amount of possible locations the beeper is at would severely diminish any probable cause that was attempted to… that they might attempt to get later.

But also in the hypothetical visual surveillance army type situation, it is what I would probably like to characterize as a plain view possibility exception, that if an agent, a government agent ever saw some item of yours, then he could… in his mind it would be the same as if he were following.

If he gained that information later by some illegal method, he could say, well, we could have gotten it by a legal method by detailing our imaginary surveillance agent which would follow that through the years, months, or whatever it has to be.

I just don’t believe that that is a valid argument.

Also, the government argues that there is a reduced expectation in these items.

I have found that at Note 10 of their reply brief.

And I find that there is a real problem there, because I can’t tell what reduced expectation they are talking about.

They allude to the automobile exception, but they seem to be applying it to persons, homes, and containers.

In a way, what they do… they seem to be saying is, is because these containers that travel along the road, that they are running the highway into the home, and now anybody in the home or who has traveled along the road or whatever has a reduced expectation of privacy, so that they could continue to search once it is within the home.

Mr. Roberts, I am not sure that is their argument.

Maybe I don’t understand it correctly, but one could say there is a lesser expectation of privacy in a ten-gallon can of ether, which I don’t suppose is going to be kept in your bedroom, for example, because it doesn’t smell too good.

I imagine it is normally going to be found in factory type locations and that sort of thing.

Isn’t that part of what they are suggesting?

It is a little different than a beeper on a necktie, I would think, at least arguably.

Charles Louis Roberts:

–It is only a five-gallon drum of ether–

John Paul Stevens:

I am sorry, five-gallon rather than ten.

Charles Louis Roberts:

–Justice Stevens, and this can be–

John Paul Stevens:

It was part of a 50-gallon shipment.

Charles Louis Roberts:

–carried in a truck of a car or put in a locker or put in the garage or whatever.

Byron R. White:

There were ten of those cans, and they could see them in the cars when they went to the first house, and they could see them on some of the later movements until they finally put them in boxes, and they couldn’t tell, they couldn’t tell whether there was a can, except by the beeper, they didn’t know that that automobile had that particular can in it.

Charles Louis Roberts:

Yes, and also we presented evidence at the suppression hearing that ether is a very common chemical.

It is a chemical that is used in varying amounts as a solvent, to synthesize hormones, to make vitamins, perfumes, silicone, oils, preparation of high quality film.

In fact the professor that we called to testify testified that 50 gallons was not a large amount for a small manufacturing or a small perfume–

John Paul Stevens:

But those are all industrial uses.

They are not… It is not used around the house to make–

Charles Louis Roberts:

–It is used in photography, Your Honor.

John Paul Stevens:

–Pardon me?

Charles Louis Roberts:

It is used in photography, Your Honor.

John Paul Stevens:

I see.

How often would a photographer use ten five-gallon cans of ether?

Charles Louis Roberts:

I think not very often.

Warren E. Burger:

How long would that supply last him?

A couple of years, wouldn’t it?

Charles Louis Roberts:

I don’t think it would be very often, Your Honor, but–

Warren E. Burger:

Did your record show the total amount of ether coming into Albuquerque or the area in a year or in a month?

Charles Louis Roberts:

–No, but the professor in question said just simply for his classes and the various things they did at school they often ordered it by the tank car, which is a substantial amount more than 50 gallons.

As a solvent, things come, you know, in large quantities, but it is not illegal to own ether.

It is not contraband.

It is not even a precursor chemical.

Warren E. Burger:

It has to be labeled in transport, though, does it not, because of its volatility?

Charles Louis Roberts:

Because of its flammability, Your Honor.

I think that it does.

But it is not a precursor chemical.

It is not–

William H. Rehnquist:

What do you mean by precursor chemical?

William H. Rehnquist:

I am certain you have heard the expression used.

I wasn’t aware it had a real precise definition.

Charles Louis Roberts:

–Yes, it is… a precursor chemical is something out of which a contraband substance can be made, like methamphetamines or whatever.

They are listed… some of them are prohibited even from private people or persons to own.

Ether is not one of those.

William H. Rehnquist:

It is not something out of which you make illegal drugs?

Charles Louis Roberts:

No.

It probably could be used in a million illegal or legal ways when you are using it as a solvent.

In this case, it was used to wash cocaine out of clothing that had been imported into the United States.

In arguing that there should be a new exception to the Fourth Amendment, the government doesn’t really seem to give us a basis for saying why there should be a new exception except that there are so many exceptions and perhaps we should have another.

It does not fit in any category that the government sets forth.

It is not an investigatory stop.

It is not a border search.

It is not an automobile search.

And it has several problems with it that don’t fit in those kind of cases that cause it not to fit.

First of all, there is no time limitation.

The beeper can be extended and stay there for ever and ever.

It is not brief, like in place having a dog sniff you for a certain amount of time.

This dog, if you can compare it to a dog, is inside the can, and is sniffing all the time, for five months.

Also, there is no exigent circumstances.

Every one of these other cases talk about the fact that someone needs a warrant but can’t get one because of some problem, or that there is some immediate need to get a warrant and they can’t get it, and so the exigent circumstances allows them to go without a warrant on reasonable suspicion.

Warren E. Burger:

Does this record show what kind of fabric the ether was applied to to extract the drug?

Charles Louis Roberts:

It was–

Warren E. Burger:

You said clothing.

Charles Louis Roberts:

–clothing, is all that appears.

Warren E. Burger:

Men’s suits, or–

Charles Louis Roberts:

In other words, I think that–

Warren E. Burger:

–hosiery, or what?

Charles Louis Roberts:

–No, I think that this was heavier clothing.

It was a scheme of some local young men in Albuquerque, some college students or whatever, to import some clothing from Colombia that was saturated in cocaine, and to wash it out and to sell it, and that was simply what happened.

Sandra Day O’Connor:

Mr. Roberts, there are several respondents in this case, and at least one of the briefs indicated that Mr. Muehlenweg was acting as the agent for respondents Karo, Horton, and Harley.

I assume then that there is a question of consent as to them.

If he was their agent for the purchase of the ether, why wasn’t he their agent for purposes of consenting to the installation?

Charles Louis Roberts:

I believe that one could make the point that he could consent to the installation but he cannot consent to the beeper remaining inside the drum when he hands it over to other people.

Sandra Day O’Connor:

Well, if he was their agent, at least for purposes of Mr. Karo, Horton, and Harley, why aren’t they bound by their agent’s consent?

Charles Louis Roberts:

I would just have to answer, Justice O’Connor, that if one bought a house from somebody else, somebody could not leave a bug in it, even if that person was one’s real estate agent.

I don’t believe that one person can consent to the future violations of over five months of all sorts of individuals.

And I just don’t believe he had that power.

Sandra Day O’Connor:

Well, the brief made a blanket assertion that he was their agent, so I just wondered why that isn’t that binding.

And as to the other respondents, they had no property interest to be protected, did they?

Charles Louis Roberts:

At that time, until the beeper intruded upon their private areas.

Now, I still would make the point that–

Sandra Day O’Connor:

Well, does the record show what property Roth, Steele, and Rhodes had that would have been involved?

Charles Louis Roberts:

–Yes, Your Honor.

If I may approach them, Roth was in the Taos house.

He had been there for seven or eight days, which the beeper was used to find that house.

That appears on Page 57 and 58 of the record.

He was sick.

He had come up to ski, and had stayed there several days, and had his own bedroom.

Rhodes, there is a question of whether it entered his house on Madison Street.

Furthermore, he had the access to one of the storage lockers with a key where the beeper was monitored inside, and third, he was at the Taos home one night while the beeper was being monitored, and then left.

Sandra Day O’Connor:

Someone else’s home?

Charles Louis Roberts:

Yes, but he was a guest.

Sandra Day O’Connor:

Well, I’m not sure that qualifies for protection, those descriptions.

Charles Louis Roberts:

Well, an overnight guest I believe does have some protection, but Horton and Harley have probably… they have an interest in the drum itself.

It goes into their houses and their families’ houses.

They are the ones who rent the lockers that it goes into.

And they are the ones who along with Steele rent the Meadowwind Taos residence where they lived for three months before the arrival of the ether and the start of the search.

William H. Rehnquist:

These were college students?

Charles Louis Roberts:

A few of them were.

Charles Louis Roberts:

There was even a medical chemistry student who was–

William H. Rehnquist:

And they all lived up at Taos for three months?

Charles Louis Roberts:

–Three of them did.

Albuquerque… Taos being a little to the north of Albuquerque.

William H. Rehnquist:

A hundred miles to the north.

Charles Louis Roberts:

Yes.

Harry A. Blackmun:

That is a good way up there.

Didn’t they use an alias for one of the locker rentals?

Charles Louis Roberts:

Yes, there was an alias on that rental.

Warren E. Burger:

Does the record show the dollar figure on these ten cans of ether?

Charles Louis Roberts:

It cost $3,000 to buy them.

Warren E. Burger:

So that is not a college prank operation, is it?

Charles Louis Roberts:

I wasn’t mentioning… It is a serious offense, Chief Justice Burger.

I was just trying to explain–

Warren E. Burger:

I didn’t intend to reflect on your argument in the slightest.

What I am suggesting is that this is not a small time operation.

Charles Louis Roberts:

–It took $3,000.

Warren E. Burger:

Just one component used over a short period of time is $3,000, with all the expensive precautions taken to cover it.

That is a highly organized enterprise, isn’t it?

Charles Louis Roberts:

I believe it was organized.

There were leaks, because that is why Muehlenweg got in, and whatever, and like that, but also there is one point that I have forgotten to raise here as to why it is a search, and that simply is that it does everything a police search would do.

If a police wants to find an item in your home, he goes in and finds it.

The beeper tells him it is in your home, the exact same information.

In fact, in some cases the beeper probably tells more than a policeman inside the drum, because if a policeman was inside the drum and got out in one of these storage lockers, he wouldn’t know anything except he was in a storage locker somewhere, but the beeper can tell the agents outside where it is, and it tells them that.

It searches for the can of ether, finds it, identifies it, and then follows it.

In a brief comment on the supervisory powers, I would simply point out that this is a case where a U.S. Attorney and a DEA agent purposely lied to get this warrant.

If there is any indication… to a district judge.

If there is any–

Harry A. Blackmun:

Is that any worse than using an alias?

Charles Louis Roberts:

–Your Honor, they were probably no worse than what the defendants did, that is for sure, but there are sanctions to be applied against defendants and there are, of course, sanctions to be applied against these individuals.

Charles Louis Roberts:

None of these individuals to my knowledge has been disciplined.

The U.S. Attorney left to run for office after two and a half years of practice.

There was no action taken except the suppression.

Harry A. Blackmun:

Well, one adverse result was the fact that the warrant that was obtained is void.

Charles Louis Roberts:

That is one adverse result.

But if the evidence is not suppressed, it surely is not going to harm the government that much.

Also, I would point out in a few seconds here that a dead beeper is still an intrusion.

If a police officer comes into your house blindfolded, and with things over his ears, ready at any moment to go into action, that is an intrusion.

If they put a beeper in your house or they put a beeper in your vehicle or they put a beeper in a container where you have an expectation of privacy… excuse me for adding vehicle… it would seem that that is an intrusion.

It is a chilling factor to know that the government just on its own discretion can place beepers anywhere and activate them at the turn of a switch, to follow any object, any vehicle, any thing, and as militarization increases, they can probably do it.

The one you saw today may be the size of a pencil tomorrow, and down to this level indicating the next day, and this Court really needs to consider about allowing that sort of surveillance without any judicial information protection which would be afforded by a Fourth Amendment warrant and probable cause requirement.

The Congress won’t know how many times this is happening.

The government will know.

The courts will not know.

Only a few guilty criminal defendants will be able to even challenge the fact that they have been followed and monitored, because they will probably the only ones who will ever know, and in some cases they might not even know.

It may not be reasonable to disclose it.

Warren E. Burger:

Now, counsel, I take it you are at the point that we should explore some other areas carefully.

Suppose you have a terrorist activity, something like the one we have read about in London in the last few days.

Certainly every human being has a right not to be shot at by the police.

We would all agree on that.

Charles Louis Roberts:

Yes.

Warren E. Burger:

Do you think when the person engages in terrorist activities, plainly illegal activities on which no one would disagree, that he has given up his right not to be shot at by the police?

He has given up his otherwise constitutionally guaranteed rights.

Charles Louis Roberts:

He may have given up some rights, Chief Justice, but I think this Court in Mincey said that even a homicide doesn’t forfeit the reasonable expectation of privacy in the very home where the policeman was shot in a heroine deal, and that is the finding of that Court, that you cannot already assume that the man is guilty before you have even gathered the evidence, and that was a specific holding of this Court in Mincey, and I believe that should be the holding.

Warren E. Burger:

But some of these terrorist things that we read about, individual cases, there is only one person in the house, and he goes from window to window shooting people and killing them, a number of them, one in the morning paper, no problem about identifying the wrongdoer there, nor is the nature of his… the gravity of his wrongdoing.

Do you think he has given up some of his constitutional rights not to be shot at?

Charles Louis Roberts:

Because of exigent circumstances, Your Honor, I think a lesser standard would follow.

Warren E. Burger:

Very well.

Do you have anything further, Mr. Frey?

Mr. Andrew L. Frey:

A couple of things, Mr. Chief Justice.

Warren E. Burger:

You have three minutes remaining.

Mr. Andrew L. Frey:

Thank you.

First, I wanted to point out that this case is not at all like the questioning that we had during the Knotts argument involving the use of a beeper to monitor the movement within a house from place to place or the opening.

There is no indication in this case, no evidence that the beeper was used for that purpose.

There is no interest in using it for that purpose.

We would be, in fact, perfectly happy if you suppressed all of the evidence about whether it was inside any one of these houses.

That is not evidence that is material or used.

Byron R. White:

Why wasn’t it used to get the search warrant in the final house?

Mr. Andrew L. Frey:

Well, it was not material to the search warrant, because they knew… they had information from Muehlenweg that there was a cocaine manufacturing operation going on in Taos.

They had followed the ether to the house, and they saw the windows open, which told them that the ether was inside being used.

So it was wholly superfluous, the particular fix, and that raises the question about respondents Roth and Steele.

The only claim that they could have is with respect to the use at the Taos residence, which was immaterial to the procurement of the warrant and the seizure of the evidence.

With respect to the first three premises to the vicinity of which it was taken, there is no evidence that it went into Karo’s house or Horton’s house or Horton’s father’s house.

In fact, I rather doubt that 50 gallons of ether, which is highly explosive, not to mention the effect of the fumes, would be taken inside.

We don’t know that.

John Paul Stevens:

Mr. Frey, in your view, what difference does it make whether it went in the house or not?

Mr. Andrew L. Frey:

We don’t think it makes a difference legally in this case, but the whole lynchpin of their argument is that we are searching their house, that what is happening in this case is exactly the same as if we sent a police officer inside to walk around the house trying to find the ether.

John Paul Stevens:

And the lynchpin of your argument is, there is no search no matter where it goes.

Mr. Andrew L. Frey:

Well, I have two separate arguments.

John Paul Stevens:

I mean, one of your arguments.

Mr. Andrew L. Frey:

The second argument, which is also quite important to us, is that even if there is a search, it is a limited intrusion in its nature, revealing only the single fact which ordinarily at least would be visible by observation, and therefore that a reasonable suspicion standard is sufficient.

I mean, that is quite important to us.

I might point out that a warrant… it is very peculiar.

They say we are searching their home, yet they must concede that a warrant could not particularly describe the place to be searched.

All we could have is what is in effect a writ of assistance allowing us to use this particular search technique, whatever home this may be taken to.

With respect to Justice White’s question during my opening argument, there was one point that I wanted to make with respect to this shell game or concealed departure, and that is that there is no evidence in this record that there was in fact any movement of this that would not have been visible to surveilling agents.

Byron R. White:

I thought it was perfectly plain that there was evidence in the record.

When they put the cans in the box.

Mr. Andrew L. Frey:

I was looking for that.

I could not find it.

Mr. Andrew L. Frey:

When the cans were removed from the second storage locker and taken up to Taos, the affidavit simply says that they were… they saw the cans being removed on the videotape.

Byron R. White:

Well, I think you will find that somewhere, 56, 57, 58, you will find that a truck departed with some boxes, and they didn’t see any cans, but the beeper told them that the boxes had the cans in them.

Mr. Andrew L. Frey:

Well, I found… when this came up before I was looking for it and I couldn’t–

Byron R. White:

Well, the record will speak for itself.

Mr. Andrew L. Frey:

–find the reference.

Warren E. Burger:

We will resume at 1:00 o’clock with the next case.