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The warrantless monitoring by law enforcement personnel of electronic beepers hidden in bait 

money robbed from a bank probably does not constitute a “search” implicating the Fourth 

Amendment, even after the beeper being monitored has been taken into a home.

One w ho has come into possession o f beeper-monitored bank bait money by robbing a bank has 

no legitim ate expectation of privacy in such money that would be violated by the beeper 

monitoring.

Although this form o f beeper monitoring probably does not constitute a search implicating the 

Fourth Amendment, it was recommended that the FBI should continue its practice of seeking 

a warrant when that form of m onitoring is undertaken. However, because exigent circumstances justify the FB I's practice o f commencing beeper monitoring immediately when a 

baited bank is robbed, the FBI is not constitutionally required to refrain from monitoring the 

beeper until it has obtained a warrant.

December 5, 1986

M e m o r a n d u m O p in io n f o r t h e A s s i s t a n t D i r e c t o r , L e g a l C o u n s e l ,

F e d e r a l B u r e a u o f In v e s t i g a t i o n

This memorandum responds to your request for an opinion on the legality of 

the warrantless monitoring of beepers hidden in bank robbery bait money. This 

Office has concluded that such monitoring probably does not constitute a 

“search,” even after a beeper has been taken into a home. Nevertheless, we 

recognize that a court subsequently may disagree with this interpretation of the 

Fourth Amendment. We therefore recommend that the FBI continue its current 

practice of seeking a warrant in every case.1

Before proceeding further, it is important to emphasize the narrow scope of 

the constitutional issue presented. The installation of the beeper in the bait 

money clearly does not implicate the Fourth Amendment rights of the prospective bank robber. Only the bank has a legitimate privacy interest in the bait 

money, and its consent to the installation would preclude any objection it might 

make. United States v. Karo, 468 U.S. 705,711 (1984).2 Similarly, the transfer 

of the beeper to the bank robber does not infringe upon his legitimate expecta1 This O ffice has been advised that the F B I’s general practice, upon being informed of a bank robbery in 

which a beeper was taken, is to seek a w arrant as soon as it is reasonably practicable to do so.

2 W e assum e that the installation occurs at the direction or suggestion or with the cooperation of governm ent agents. O therw ise, o f course, the Fourth Amendment would not apply because the Fourth Amendment 

does not govern private searches. United States v. Jacobsen, 466 U.S. 109, 113 (1984).

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tion of privacy. Id. at 712.3 Finally, even when government agents do begin 

monitoring a beeper that has been taken from a bank, there is no “search” if the 

information revealed could have been obtained through visual surveillance. See

United States v. Knotts, 460 U.S. 276 (1983). Thus, the only time that the 

Fourth Amendment might be implicated by the monitoring of a beeper in bait 

money is when the beeper is taken into a place that could not be entered 

physically without a warrant.

In Karo, the Supreme Court held that using a beeper to locate a can of ether 

inside a house constituted a “search” because it “reveal [ed] a critical fact about 

the interior of the premises that the Government was extremely interested in 

knowing and that it could not have otherwise obtained without a warrant.” 468 

U.S. at 715. The Court analogized the electronic surveillance to a physical 

entry of the home:

[H]ad a DEA agent thought it useful to enter the Taos residence 

to verify that the ether was actually in the house and had he done 

so surreptitiously and without a warrant, there is little doubt that 

he would have engaged in an unreasonable search within the 

meaning of the Fourth Amendment. For purposes of the Amendment, the result is the same where, without a warrant, the Government surreptitiously employs an electronic device to obtain 

information that it could not have obtained by observation from 

outside the curtilage of the house.

Id. If the Supreme Court were to carry this analogy to its logical extreme, of 

course, monitoring any beeper that has been taken into a residence would 

constitute a “search.” Fortunately, there is reason to believe that the Supreme 

Court might not rely upon this analogy in the present situation. The Karo Court 

acknowledged that monitoring an electronic device in a home is “less intrusive 

than a full scale search.” 468 U.S. at 715. More importantly, the Court suggested that a warrant to monitor a home electronically might be issued on the 

basis of “reasonable suspicion.” Id. at 718-19 n.5.4 This shows the imperfection of the Court’s analogy, for if the Court had intended to equate the 

monitoring of a beeper in a private residence with the physical entry of the 

home, there would have been no justification for suggesting that a warrant 

might be issued to authorize the former in the absence of “probable cause.” 

Karo is best understood as holding simply that the electronic surveillance at 

issue there infringed upon “an expectation of privacy that society is prepared to

3 In Karo, 468 U.S. at 712, the Court explained:

The mere transfer to Karo of a can containing an unmonitored beeper infringed no privacy 

interest. It conveyed no information that Karo wished to keep private, for it conveyed no 

information at all. To be sure, it created a potential for an invasion o f privacy, but we have never 

held that potential, as opposed to actual, invasions o f privacy constitute searches for purposes of 

the Fourth Amendment.

4 In Karo, it was unnecessary for the Court to decide what level of suspicion would justify the issuance o f a 

warrant to monitor a beeper in a home. The Court said that there would be “time enough to resolve the 

probable cause/reasonable suspicion issue in a case that requires it.” 468 U.S. at 718-19 n.S.

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accept as reasonable.” United States v. Jacobsen, 466 U.S. 109, 122 (1984). 

The can of ether to which the beeper was attached was not contraband, and it 

had been lawfully acquired. Thus, the respondent in Karo had a legitimate 

expectation of privacy in the fact that he possessed this item in his home. If the 

Court had reached a different conclusion, it would be constitutional for a 

government agent to attach a beeper to any item and to monitor it wherever it 

was taken.

This reasoning does not apply to a bank robber’s possession of bank bait 

money. Unlike a person who has lawfully acquired a non-contraband item, a 

bank robber does not have a legitimate expectation that a beeper in a bait pack 

will not be monitored in his home. A “legitimate” expectation of privacy “must 

have a source outside of the Fourth Amendment, either by reference to real or 

personal property law or to understandings that are recognized and permitted 

by society.” Rakas v. Illinois, 439 U.S. 128, 143—44 n.12 (1978). The beeper, 

of course, is attached to bait money that has been stolen from a bank. Neither 

property law nor any other “understanding” recognized by society protects an 

expectation of privacy relating to the location of such stolen money. Admittedly, it may be reasonable for the bank robber to assume that government 

authorities are not monitoring the location of a recently stolen bait pack, in 

much the same way that “a burglar plying his trade in a summer cabin during 

the off season may have a thoroughly justified subjective expectation of 

privacy.” United States v. Jacobsen, 466 U.S. at 122-23 n.22. The Supreme 

Court has long recognized, however, that “the concept of an interest in privacy 

that society is prepared to recognize as reasonable is . . . critically different 

from the mere expectation . . . that certain facts will not come to the attention of 

authorities.” Id. at 122.5

The Supreme Court’s decision in United States v. Jacobsen, supra, bolsters 

the argument that monitoring a beeper attached to bank robbery bait money, 

even after the beeper is taken into a home, does not implicate the Fourth 

Amendment. In Jacobsen, the Court held that testing a white powder to 

determine whether it was cocaine did not constitute a search. Critical to the 

Court’s decision was the fact that “[t]he field test at issue could disclose only 

one fact previously unknown to the agent — whether or not a suspicious white 

powder was cocaine.” 466 U.S. at 122.6 Because Congress had decided to 

“treat the interest in ‘privately’ possessing cocaine as illegitimate,” id. at 123,

5 In a num ber o f cases antedating United Slates v. Karo, supra, courts found that monitoring beepers placed 

in stolen property and contraband did not constitute a “search” within the meaning o f the Fourth Amendment. 

See, e.g.. United States v. Bailey, 628 F.2d 938,944 (6th Cir. 1980) (“For Fourth Amendment purposes, there 

is a clear distinction between contraband and other property.”); United States v. Moore, 562 F.2d 106, 111 

(1st Cir. 1977) (“W e and other courts have upheld the placing of beepers, without warrant, in contraband, 

stolen goods, and the like on the theory th at the possessors o f such articles have no legitimate expectation of 

privacy in substances which they have no right to possess at all.”); United States v. Perez, 526 F.2d 859, 863 

(5th C ir. 1976) (“a person who accepts an item of personal property in exchange for heroin has no reasonable 

expectation that it is cleansed of any device designed to uncover the tainted transaction or identify the 

parties”).

6 The C ourt pointed out that the field test could not even tel) the government agent whether the substance 

was sugar o r talcum powder. 466 U.S. at 109.

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governmental conduct revealing only whether a substance was cocaine, and no 

other arguably “private” fact, compromised no legitimate privacy interest. 

Jacobsen suggests that monitoring a beeper placed in bank robbery bait money 

does not constitute a “search.” Possession of money stolen from a bank, like 

possession of cocaine, has been made illegal, and therefore a bank robber’s 

expectation of privacy relating solely to the location of this stolen money is 

illegitimate.

The Supreme Court’s decision in United States v. Place, 462 U.S. 696

(1983), likewise suggests that the Constitution does not prohibit the warrantless monitoring of a beeper in a bait pack, even after it is taken into a home. In 

Place, the Court held that having a specially trained dog sniff personal luggage 

in order to determine whether it contains contraband does not constitute a 

“search.” Id. at 707. There were twin rationales for the Court’s decision. First, 

the canine sniff reveals only one thing about the contents of the suitcase, the 

presence or absence of contraband. Second, the limited nature of the search 

insures that the owner of the suitcase is not “subjected to the embarrassment 

and inconvenience entailed in less discriminate and more intrusive investigative methods,” such as having an officer “rummage through the contents of the 

luggage.” Id. These two rationales imply that monitoring a beeper that has been 

taken into a home does not constitute a “search.” Such monitoring reveals only 

one thing, the presence or absence of an item that is possessed illegally. 

Furthermore, like the owner of the suitcase in Place, the person from whose 

home the radio signals are emanating is not subjected to the embarrassment 

of more intrusive investigative methods, such as the physical entry of his 

residence.

Although this Office believes that monitoring a beeper that has been placed 

in bait money probably does not constitute a “search,” we recommend that the 

FBI continue its current practice of seeking a warrant in every case. See supra

note 1. This does not mean that the FBI should refrain from monitoring a 

beeper until it has obtained a warrant. When a bank is robbed, exigent circumstances justify the FBI’s current practice of beginning immediately to monitor 

a beeper, even before a warrant is secured.7 But while one or more agents are 

monitoring the beeper, another agent should be seeking a warrant as soon as it 

is reasonably practicable to do so.8 This course of action will avoid the

7 If the FBI were to locate a bait pack in a specific residence before it had been able to obtain a warrant, we 

feel certain that a court would hold that this “search,” if it is indeed a “search/’ was justified by exigent 

circumstances. The warrantless entry o f a home is justified if there is reason to believe that evidence will be 

destroyed or removed before a warrant can be secured. See, e.g , United States v. Edwards, 602 F.2d 458 (1st 

Cir. 1979); United States v Rubin, 474 F.2d 262 (3d Cir. 1973). Although the resolution of this issue depends 

upon varying factual circum stances, in most cases it will be reasonable for FBI agents to assum e that if they 

do not locate the beeper immediately, it will be removed or destroyed. Moreover, it is important to remember 

that the “exigent circum stances” exception to the warrant requirement justifies the physical entry of a home. 

This Office believes that a court would be even more willing to find that exigent circumstances justify the 

“electronic entry” o f a home without a warrant.

8 The warrant issued need not describe the “place” to be searched. As the Supreme Court recognized in 

United States v. Karo, 468 U.S. at 719, “the location of the place is precisely what is sought to be discovered”

Continued

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unnecessary suppression of important evidence if a court subsequently disagrees with our constitutional analysis. We are confident that in the foreseeable 

future the issue will be resolved in litigation.

S a m u e l A . A l i t o , J r .

Deputy Assistant Attorney General

Office o f Legal Counsel

* (... continued)

through the m onitoring o f the beeper. Therefore, an agent applying for a warrant in such a case simply should 

describe the circum stances under which th e bait pack was taken and the length of time for which beeper 

surveillance is requested. See id.

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