UNITED STATES OF AMERICA, PETITIONER V. LEROY CARLTON KNOTTS

   No. 81-1802

   In the Supreme Court of the United States

   October Term, 1981

   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 Eighth Circuit in this case.

   Petition for a Writ of Certiorari to the United States Court of
Appeals for the Eighth Circuit

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Statement
   Reasons for granting the petition
   Conclusion
   Appendix A
   Appendix B
   Appendix C
   Appendix D

                            OPINIONS BELOW

   The opinion of the court of appeals (App. A, infra, 1a-11a) is
reported at 662 F.2d 515.  The opinion of the district court (App. B,
infra, 12a-17a) is not reported.

                             JURISDICTION

   The judgment of the court of appeals (App. C, infra, 18a) was
entered on October 30, 1981.  A petition for rehearing with a
suggestion for rehearing en banc was denied on December 29, 1981 (App.
D, infra, 19a).  On February 17, 1982, Justice Blackmum extended the
time within to file a petition for a writ of certiorari to and
including March 29, 1982.  The jurisdiction of this Court is invoked
under 28 U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether the warrantless monitoring of a beeper to aid in locating a
drum containing chemicals used to manufacture illegal drugs violates
the Fourth Amendment.  /*/

                               STATEMENT

   In an indictment filed in the United States District Court for the
District of Minnesota, respondent was charged, together with Darryl
Petschen and Tristan Armstrong, with conspiracy to manufacture
controlled substances, including but not limited to methamphetamine,
in violation of 21 U.S.C. 846.  Following a jury trial, respondent was
convicted and was sentenced to five years' imprisonment.  /1/

   1. The evidence showed that on June 14, 1979, Agent Timothy
Shanley, a narcotics investigator for the Minnesota Bureau of Criminal
Apprehension, received information from the 3M Company, a chemical
company in St. Paul, Minnesota, that co-defendant Armstrong, a former
3M employee, had been stealing phenylacetone and other chemicals that
are essential precursors (starter materials) in the manufacture of
amphetamine and methamphetamine (H. 2-3;  Tr. 46-47, 196, 210).  /2/ A
search of Armstrong's laboratory at 3M uncovered documents linking him
to a residence on Leone Street in St. Paul, where, through visual
surveillance, agents saw co-defendant Petschen and others moving
laboratory equipment and furniture into a truck (H. 3;  Tr. 50-51,
57-58, 60-61).  Thereafter, Agent Shanley examined the vacated
premises with the landlord's permission (H. 4;  Tr. 63-64).  He found
tubing, glassware and miscellaneous laboratory equipment amid several
piles of garbage (Tr. 64).  He also found a white powder which, upon
analysis, was found to contain a chemical byproduct of amphetamine
synthesis (H. 4;  Tr. 65-66, 262).

   Subsequent investigation revealed that Armstrong had been placing
numerous orders for chemicals with the Hawkins Chemical Company in
Minneapolis (H. 5;  Tr. 73-74, 81-85, 89).  When Agent Shanley was
informed that on February 28, 1980, Armstrong was scheduled to pick up
one such order from Hawkins, including a quantity of chloroform,
Shanley obtained permission from the company to place the chloroform
inside a five-gallon drum containing a beeper before delivery to
Armstrong (H. 5-6;  Tr. 100-101).  /3/ On the scheduled date,
investigating agents observed Armstrong pick up the order and drive to
co-defendant Petschen's residence in St. Paul, where the packages of
chemicals were transferred to the back seat of Petschen's vehicle (H.
5-6, 11;  Tr. 73-74, 102).  The agents followed Petschen as he drove
his automobile into Wisconsin (H. 6;  Tr. 104, 106-107).  At times the
agents lost sight of Petschen's vehicle and relied upon the beeper
signal emitted from the drum to keep track of Petschen's whereabouts
(H. 7;  Tr. 103-104).  During most of the surveillance Petschen drove
at a steady pace of 55 miles per hour and did not appear to be trying
to avoid detection (Tr. 104).  At about 3 30 p.m., however, Petschen
began making evasive maneuvers and the agents terminated their visual
surveillance (Tr. 105).  Approximately one hour later, the agents
located the beeper signal in the vicinity of a cabin occupied by
respondent Knotts near Shell Lake, Wisconsin (H. 7;  Tr. 105,
108-109).  The agents then established intermittent visual
surveillance of respondent's property until the following day, when
they saw respondent and Petschen leave the area (Tr. 107-108).

   On March 3, 1980, federal and state agents obtained a warrant to
search respondent's cabin and surrounding property.  In the course of
the search, they discovered a fully operable clandestine drug
laboratory behind wall paneling in the cabin (H. 8-9;  tr. 143).  In
the laboratory area the agents found formulas for amphetamine and
methamphetamine, over $10,000 worth of laboratory equipment, and
chemicals in quantities sufficient to produce 14 pounds of pure
amphetamine (H. 9-10;  Tr. 160, 162-163, 272-274).  Hidden under a
barrel outside the cabin the agents located the five-gallon drum of
chloroform in which they had placed the beeper (Tr. 173-174).

   2. Prior to trial, respondent moved to suppress the evidence found
in the search of his cabin.  The district court denied the motion
(App. B, infra, 12a-17a).  The court first concluded that the
installation of the beeper with the consent of the chemical company
"did not invade anyone's expectation of privacy and thus could not
have violated the Fourth Amendment" (id. at 15a).  The court then held
that the subsequent monitoring of the beeper to determine the
destination of the drum of chloroform did not violate respondent's
Fourth Amendment rights because respondent could claim no legitimate
expectation of privacy in the arrival on his property of a can of
chemicals transported over public thoroughfares by another party (id.
at 15a-16a).  In addition, the court concluded that the monitoring of
the beeper's signals for a brief period after the drum was deposited
on respondent's property was not a "search" within the meaning of the
Fourth Amendment (id. at 16a-17a).  Accordingly, the court ruled that
the subsequent warrant-authorized search of respondent's cabin based
on information gained by use of the beeper was valid (id. at 17a).

   3. A divided panel of the court of appeals reversed respondent's
conviction (App. A, infra, 1a-11a).  /4/ Noting that the other
circuits that have addressed the question have taken conflicting
positions, the majority held that law enforcement officers must obtain
a warrant before using a beeper to determine the location of
noncontraband materials that have been placed in a private area or
withdrawn from public view (id. at 4a-7a).  /5/ The majority
acknowledged that the courts have upheld the warrantless use of
beepers as an aid of visual surveillance in tracking the route taken
by an automobile over public roads, but it concluded that in this case
the item to which the beeper was attached passed "into the private
sphere protected by the Fourth Amendment" when the "beeper's signal
was lost and found again only after the beeper-laden drum was on
private property out of public view" (id. at 6a-7a).

   Judge Henley dissented (App. A, infra, 8a-11a).  He first expressed
some doubt as to whether the monitoring of a beeper is a "search"
within the meaning of the Fourth Amendment (id. at 8a).  Even if the
use of a beeper is a search, Judge Henley concluded that there can be
no greater expectation of privacy in the location of chemicals
intended for use in the manufacture of illegal drugs than in the
location of known contraband, which an individual has no legal right
to possess (id. at 8a-11a).  In Judge Henley's view, the agents had
probable cause to believe that the chloroform was intended for illegal
use at the moment they saw co-defendant Armstrong load the chloroform
into his automobile, and they thus could have seized the chloroform
for immediate forfeiture under 21 U.S.C. 881(a) (2) (App. A, infra,
11a n.1).  In these circumstances, Judge Henley concluded that
"(respondent) had no legitimate expectation of privacy in the location
of the chloroform that was violated by (the warrantless) monitoring of
the beeper" (id. at 11a.)

                   REASONS FOR GRANTING THE PETITION

   This case presents an important and recurring question of Fourth
Amendment law.  The holding of the court of appeals that a warrant is
required before law enforcement agents may monitor radio signals from
a beeper to locate an object that has come to rest on private property
is, as the court below conceded (App, A, infra, 5a-6a), in direct
conflict with decisions of the United States Courts of Appeals for the
Ninth and Tenth Circuits.  United States v. Dubrofsky, 581 F.2d 208
(9th Cir. 1978);  United States v. Bernard, 625 F.2d 854 (9th Cir.
1980);  United States v. Brock, No. 80-1736 (9th Cir. Feb. 18, 1982);
United States v. Clayborne, 584 F.2d 346 (10th Cir. 1978).  Moreover,
the decision in this case also apprears to conflict with the decisions
of numerous courts of appeals that have upheld the warrantless
monitoring of beepers to track the movements of an automobile over
public roads.  The conflicting decisions of the lower courts in this
area have engendered considerable uncertainty concerning the Fourth
Amendment implications of using a beeper as an aid in surveillance of
suspected criminal activities.  This Court should grant review to
resolve these conflicts and to decide the important question presented
here.

   1. Cases involving the permissibility of beeper use ordinarily
raise two distinct issues, one relating to the installation of the
beeper in a package or conveyance, the other relating to the
monitoring of signals transmitted by the beeper.  In this case, both
courts below concluded (App. A, infra, 4a n.2;  App. B, infra, 15a)
that the installation of the beeper inside the drum of chloroform with
the consent of the chemical company did not violate the Fourth
Amendment.  This decision is in accord with the decisions of other
courts in similar circumstances.  /6/The decision below, however,
squarely conflicts with decisions of the Ninth and Tenth Circuits
upholding the warrantless monitoring of beepers after the packages to
which the beepers were attached had been removed from public view.

   In United States v. Dubrofsky, supra, the Ninth Circuit upheld the
warrantless monitoring of a beeper inside a package after it had been
taken into a residencd, concluding that a device that continually
broadcasts "here I am" constitutes only a "slight" instrusion and "is
not an impermissible search." 581 F.2d at 211.  The court explained:

      Transmitting the package's location is merely an aid to what can
      be accomplished by visual surveillance.  Permissible techniques
      of surveillance include more than the five senses of officers
      and their unaided physical abilities.  Binoculars, dogs that
      track and sniff out contraband, searchlights, fluorescent
      powders, automobiles and airplanes, burglar alarms, radar
      devices, and bait money contribute to surveillance without
      violation of the Fourth Amendment in the usual case.  On the
      other hand, wiretaps, breaking and entering, and many other
      searches and seizures fall on the other side of the line.  The
      issue before us is whether the mere presence of the beeper, it
      having been attached without violating the Fourth Amendment,
      sufficiently resembles a wiretap to require the "antecedent
      justification" that a warrant would provide.  We hold that it
      does not.

   Ibid.  (footnote omitted).  /7/ Subsequently, in United States v.
Bernard, supra, and United States v. Brock, supra, the Ninth Circuit
reaffirmed its holding in Dubrofsky and upheld the warrantless
monitoring of a beeper attached to a drum of chemicals located inside
a residence.

   Similarly, in United States v. Clayborne, supra, the Tenth Circuit
held that the warrantless monitoring of a beeper that was transmitting
signals from inside commercial premises was permissible under the
Fourth Amendment.  Like the Ninth Circuit in Dubrofsky, the court
viewed the beeper "as a substitute for persistent extensive visual
effort," and it distinguished the slight intrusion occasioned by use
of a beeper from the much greater intrusion involved in the use of a
device, as in Katz v. United States, 389 U.S. 347 (1967), to intercept
the contents of telephone conversations.  584 F.2d at 351.

   In contrast to the Ninth and Tenth Circuits, the First and Sixth
Circuits have concluded that the warrantless use of a beeper to
determine the continued presence of chemicals inside a residence
violates the Fourth Amendment.  In United States v. Moore, 562 F.2d
106 (1st Cir. 1977), cert. denied, 435 U.S. 926 (1978), the court
acknowledged that "the limited data transmitted by a beeper (is) far
less revealing than the conversation recorded in Katz" and "the level
of intrusion * * * less severe." 562 F.2d at 113.  The court
nevertheless concluded that when the defendants took inside their
house a box of chemicals which, unbeknownst to them, contained a
beeper, "they had every right to expect that their activities inside
the house which they sought to preserve as private would be free from
warrantless intrusion by the Government." Ibid.  /8/

   Relying on Moore, the Sixth Circuit in United States v. Bailey, 628
F.2d 938, 944 (1980), concluded that "(b)eeper 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." Although the agents in
Bailey obtained a warrant authorizing the use of the beeper, the court
held that the warrant was invalid because it contained no provision
limiting the duration of the surveillance.  Id. at 945-946.
Accordingly, it suppressed evidence obtained as a result of the beeper
surveillance.

   In this case, the court of appeals expressly rejected the approach
of the Ninth and Tenth Circuits and relied instead on the decisions of
the First and Sixth Circuits in Moore and Bailey (App. A, infra,
5a-6a).  The clear conflict among the circuits on this important
question warrants this Court's review.  See Michael v. United States,
cert. denied, No. 81-112 (Oct. 19, 1981) (White, J., dissenting);
Miroyan v. United States, 439 U.S. 1338, 1342-1343 (1978) (Rehnquist,
Circuit Justice).

   2. The decision below goes even further than the decisions in Moore
and Bailey, which struck down the warrantless use of a beeper over an
extended period to ascertain the continued presence of chemicals
inside private premises.  Here, the majority held that the beeper
could not be employed to determine the arrival on respondent's
property of a package of chemicals used to manufacture illegal drugs.
This decision is inconsistent with the decisions of those courts of
appeals that have concluded that the warrantless monitoring of a
beeper to follow the public movements of a vehicle does not violate
the Fourth Amendment.

   Some courts have held that the use of a beeper to trace the
movements of a conveyance does not implicate Fourth Amendment concerns
at all, because an individual has no legitimate expectation of privacy
in his public travels.  See, e.g., United States v. Bruneau, 594 F.2d
1190, 1197 (8th Cir. 1979) (airplane);  United States v. Miroyan, 577
F.2d 489, 492 (9th Cir.), cert. denied, 439 U.S. 896 (1978)
(airplane);  United States v. Hufford, 539 F.2d 32, 33-35 (9th Cir.),
cert. denied, 429 U.S. 1002 (1976) (automobile).  See also United
States v. Michael, 645 F.2d 252, 259-260 (5th Cir. 1981) (en banc) (C.
Clark, J., concurring), cert. denied, No. 81-112 (Oct. 19, 1981)
(automobile).  Other courts have held that while the Fourth Amendment
applies in such situations, the warrantless use of a beeper may be
upheld on the basis of either probable cause, see United States v.
Moore, supra, 562 F.2d at 111-113 (automobile), or reasonable
suspicion.  See United States v. Michael, supra, 645 F.2d at 258
(plurality opinion).

   The majority below attempted to avoid the import of these decisions
by stating that "(t)his is not a case of a beeper being attached to an
automobile, so the ultimate issue is not whether there can be an
expectation of privacy in the route taken by an auto over public
roads" (App. A, infra, 4a;  emphasis added).  /9/ However, as the
First Circuit stated in United States v. Moore, supra, 562 F.2d at 111
n.2:

         For * * * fourth amendment purposes, where the issue is
      whether there was an invasion of a privacy interest, we think it
      makes better sense to classify the beepers functionally, i.e. by
      whether or not they were used to tail a vehicle, or else for
      some different purpose, rather than by whether the beepers were
      in a package or affixed to the vehicle's underbody.  To the
      extent the packaged beeper was used to follow the vehicle, we
      think it presents the same fourth amendment problems as the
      attached beepers.

   See also United States v. Sheikh, 654 F.2d 1057, 1071 (5th Cir.
1981), cert. denied, No. 81-5828 (Mar. 1, 1982);  United States v.
Bailey, supra, 628 F.2d at 943 n.8.  Thus, even assuming arguendo that
the monitoring of a beeper to ascertain the continued presence of a
beeper on private premises requires a warrant, that would provide no
basis for requiring a warrant here, because the agents simply used the
beeper to determine the ultimate destination of co-defendant
Petschen's vehicle, in which the drum of chloroform was transported
over public roads.  The beeper, accordingly, gave forth no information
that could not have been obtained readily had it been attached
directly to Petschen's vehicle or had the agents decided instead to
rely solely upon visual surveillance.

   3. The decision of the court of appeals in this case is based upon
an erroneous view of the Fourth Amendment.  The majority concluded
that respondent had a "reasonable, legitimate expectation of privacy"
(App. A, infra, 7a) in the drum of chloroform because it was located
"beneath a wooden barrel in the yard of a remote rustic cabin" that
respondent occupied (id. at 6a).  But the majority reached this
conclusion without considering to what extent, if any, the use of the
beeper actually intruded upon respondent's privacy interests.

   As this Court made clear in Katz v. United States, supra, 389 U.S.
at 351, "(w)hat a person knowingly exposes to the public, even in his
own home or office, is not a subject of Fourth Amendment protection."
More recently, in Smith v. Maryland, 442 U.S. 735 (1979), the Court
reaffirmed that not all events occurring within a home or on an
individual's property are protected by the Fourth Amendment simply by
virtue of the fact that they happen in a "private area," as the
majority below thought (App. A, infra, 5a).  In Smith, the Court held
that the use of a pen register to record the numbers dialed on the
defendant's telephone did not constitute a "search" within the meaning
of the Fourth Amendment.  Noting that a pen register acquires an
extremely limited amount of information (442 U.S. at 741), the Court
concluded that the use of the pen register did not violate Smith's
legitimate expectations of privacy because "(w)hen he used his phone,
(Smith) voluntarily conveyed numerical information to the telephone
company," and he "assumed the risk that the company would reveal to
the police the numbers he dialed." Id. at 744.  The mere fact that
Smith had dialed the telephone numbers recorded by the pen register
"on his home phone * * * could make no conceivable difference" in the
constitutional analysis.  Id. at 743.

   Like the pen register in Smith, a beeper bears no significant
resemblance to the listening device in Katz, for it does not intercept
private communications but merely conveys a very limited amount of
information.  Moreover, here as in Smith, the information acquired by
the beeper did not violate anyone's legitimate expectations of
privacy.  "A car has little capacity for escaping public scrutiny.  It
travels public thoroughfares where both its occupants and its contents
are in plain view." Cardwell v. Lewis, 417 U.S. 583, 590 (1974)
(plurality opinion).  See United States v. Chadwick, 433 U.S. 1, 12
(1977);  South Dakota v. Opperman, 428 U.S. 364, 368 (1976).  The
movements of co-defendant Petschen's automobile until it turned onto
respondent's property "were at all times in full view of the public *
* * .  The electronic beeper was merely a more reliable means of
ascertaining where (Petschen) was going as he drove along the public
road." United States v. Hufford, supra, 539 F.2d at 34-35.  Thus, as
the district court concluded (App. B, infra, 15a-16a;  emphasis in
original), respondent "could not reasonably have expected to keep
private the fact that the can had arrived at his residence."
Accordingly, the use of the beeper in the circumstances of this case
did not constitute a search within the meaning of the Fourth
Amendment.  See United States v. Brock, supra, slip op. 694;  United
States v. Michael, supra, 645 F.2d at 259-260 (C. Clark, J.,
concurring).

   Even if the Fourth Amendment is applicable to the beeper
surveillance involved in this case, the majority below erred in
imposing a warrant requirement.  Because of the strictly limited
nature of the information conveyed by a beeper, which is capable only
of a very narrow intrusion on any private interests, it is entirely
reasonable under the Fourth Amendment to permit law enforcement
officers to conduct beeper surveillance on the basis of suspicion
falling short of probably cause.  Cf. Terry v. Ohio, 392 U.S. 1
(1968).  In United States v. Michael, supra, a plurality of the en
banc Fifth Circuit concluded that reasonable suspicion sufficed to
justify the monitoring of a beeper.  In reaching this result, the
plurality

      consider(ed) the governmental interest in eliminating illegal
      drug manufacture to be a persuasive reason to permit this
      minimally intrusive practice.  An "intermediate response" based
      on something less than probable cause, is a proper investigatory
      tool to aid DEA agents in discovering and eliminating
      clandestine laboratory operations.  In balancing the public
      concerns served by the use of the beeper, to discover Michael's
      drug manufacturing apparatus against the slight infringement of
      Michael's expectation of privacy, we find the beeper's use to be
      eminently reasonable.

   645 F.2d at 259 (footnotes omitted).  Of course, if reasonable
suspicion is sufficient to justify use of a beeper, it follows that a
warrant (which may only be issued on probable cause) is not required
under the Fourth Amendment.  And even if the Fourth Amendment requires
more than reasonable suspicion, the use of a beeper should be
permissible based on probably cause, without the need for a warrant.
The contrary decision below, requiring a warrant simply ignores the
lack of substantial privacy concerns implicated by beeper surveillance
and needlessly subverts the legitimate needs of law enforcement
authorities to employ enhancement techniques in apprehending
criminals.

                              CONCLUSION

   The petition for a writ of certiorari should be granted.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   D. LOWELL JENSEN

      Assitant Attorney General

   ELLIOTT SCHULDER

      Assistant to the Solicitor General

   ANN T. WALLACE

      Attorney

   MARCH 1982

   /*/ In addition to the parties listed in the caption, co-defendant
Darryl Petschen was a party to the proceedings below, but is not a
respondent herein.

   /1/ Co-defendant Armstrong pleaded guilty and was sentenced to
three years' imprisonment, all but six months of which was suspended
in favor of probation on the condition that he serve those six months
on work release.  Co-defendant Petschen was tried jointly with
respondent.  He was convicted and sentenced to five years'
imprisonment.

   /2/ "H." refers to the transcript of the preliminary hearing, which
the parties stipulated could be considered by the district court in
ruling on the suppression motion (see May 28, 1980 Tr. 6-7).  "Tr."
refers to the trial transcript.

   /3/ A beeper, or electronic tracking device, transmits a radio
signal that can be monitored by a radio receiver.  The location of the
beeper is determined by the strength of the signal and the direction
from which it is received.  Electronic tracking devices used by law
enforcement authorities are of two types.  The first type, a beacon
transmitter, emits a constant signal of periodic short bursts of radio
frequency power and is used on automobiles and packages of goods.  The
second type of device, a transponder, emits a signal only upon receipt
of another designated radio signal.  This latter device is used on
airplanes and ships, where a beacon transmitter would interfere with
navigation equipment.

   /4/ The court of appeals unanimously affirmed the conviction of
co-defendant Petschen, whose suppression motion had also been denied
by the district court.  The court of appeals concluded that Petschen
had no reasonable expectation of privacy in respondent's cabin (App.
A, infra, 7a).  Petschen filed a petition for certiorari (No. 81-6089)
on January 1, 1982, seeking review of this ruling.

   /5/ Citing the maxim caveat emptor, the court of appeals agreed
with the district court that the initial attachment of the beeper with
the consent of the company did not offend the Fourth Amendment, even
though the company intended to sell the drum to an unsuspecting buyer
(App. A, infra, 4a n.2).

   /6/ See United States v. Bernard, supra, 625 F.2d at 860;  United
States v. Lewis, 621 F.2d 1382, 1388 (5th Cir. 1980), cert. denied,
450 U.S. 935 (1981);  United States v. Bruneau, 594 F.2d 1190, 1194
(8th Cir.), cert. denied, 444 U.S. 847 (1979);  United States v.
Miroyan, 577 F.2d 489, 493 (9th Cir.), cert. denied, 439 U.S. 896
(1978);  United States v. Cheshire, 569 F.2d 887, 889 (5th Cir.),
cert. denied, 437 U.S. 907 (1978);  United States v. Curtis, 562 F.2d
1153, 1156 (9th Cir. 1977), cert. denied, 439 U.S. 910 (1978);  United
States v. Abel, 548 F.2d 591, 592 (5th Cir.), cert. denied, 431 U.S.
956 (1977);  United States v. Hufford, 539 F.2d 32, 34 (9th Cir.),
cert. denied, 429 U.S. 1002 (1976).  In analogous contexts courts have
also held that no Fourth Amendment rights are infringed by the
warrantless attachment of a beeper on property by an invitee (United
States v. Arredondo-Morales, 624 F.2d 681, 684-685 (5th Cir. 1980);
United States v. Conroy, 589 F.2d 1258, 1264 (5th Cir. 1979)), or by
the installation of a beeper on the exterior of a car or airplane
parked in a location accessible to the public.  United States v.
Michael, 645 F.2d 252, 258 (5th Cir. 1981) (en banc), cert. denied,
No. 81-112 (Oct. 19, 1981);  United States v. Shovea, 580 F.2d 1382,
1388 (10th Cir. 1978), cert. denied, 440 U.S. 908 (1979);  United
States v. Moore, 562 F.2d 106, 111-112 (1st Cir. 1977), cert. denied,
435 U.S. 926 (1978);  United States v. Pretzinger, 542 F.2d 517, 520
(9th Cir. 1976).  Because the installation issue was resolved in the
government's favor below, we do not address it in this petition.

   /7/ Indeed, the court in Dubrofsky concluded that the monitoring of
a beeper that transmits not only its location inside a residence but
also the fact that the package in which it is installed has been
opened, an event signaled by a change in the beeper's tone, is
likewise not sufficiently intrusive to require a warrant.  581 F.2d at
212.  Accord, United States v. Sheikh, 654 F.2d 1057, 1071 (5th Cir.
1981), cert. denied, No. 81-5828 (Mar. 1, 1982).  While Dubrofsky
involved a package containing heroin, the Ninth Circuit has recently
made clear that this fact was not significant to the court's analysis
of the beeper monitoring issue.  See United States v. Brock, supra,
slip op. 696 n.9;  id. at 701 (Adams, J., concurring).

   /8/ Moore actually involved two different beepers, one used to
track the movements of an automobile, the other to monitor the
continued presence of a package of chemicals inside the defendants'
house.  The court reached different results with respect to the two
beepers, concluding that a warrant was required to monitor the beeper
in the house, while probable cause without a warrant was sufficient to
monitor the beeper in the car.  As we argue later on, the holding of
the majority below appears to be inconsistent with the latter holding
in Moore.  See pages 12-13, infra.

   /9/ The majority acknowledged that the courts have upheld the
warrantless monitoring of beepers placed on automobiles (App. A,
infra, 4a-5a, citing United States v. Michael, supra, United States v.
Moore, supra, and United States v. Hufford, supra).

   Appendix Omitted