Warren E. Burger: Mr. Frey, you may proceed whenever you are ready.
Mr. Andrew L. Frey: Thank you, Mr. Chief Justice, and may it please the Court, this case is here on the government's petition for a writ of certiorari to the United States Court of Appeals for the Eighth Circuit. The issues in this case began when a drug task force in Minnesota was investigating the activities of one of Respondent's co-conspirators, one Armstrong, who they had reason to believe was engaged in the manufacture of illegal drugs. They acquired information that Armstrong was making purchases of certain precursor chemicals used in the manufacture of amphetamine from a particular drug company, and with the cooperation... or chemical company... and with the cooperation of that company, they placed a beeper or radio transmitter in a false bottom in a five-gallon container of chloroform which Armstrong was scheduled to pick up. Armstrong came to the chemical company, picked up the chloroform, loaded it in his car, and was then followed by physical visual surveillance to the home of co-defendant Petschen, where the container was seen to be transferred into Petschen's vehicle. Petschen then left and was followed both visually and with the use of the beeper as he drove from Minnesota to Wisconsin. At one point during his travels on the road, the officers lost both visual and beeper contact, but they regained it while he was still in the course of his trip, and then they lost it for a second time. At that point, with the aid of an aircraft, and after the passage of perhaps a half an hour to an hour, the beeper was located emitting signals from the property of Respondent Knotts. There followed a visual surveillance over the course of a couple of days, and then a warrant, search warrant was obtained to search the property and the search disclosed a clandestine laboratory to manufacture these chemicals, and of course the chloroform container which contained the beeper and various other precursor chemicals. The issue in this case is whether a warrant is required to monitor the signals emitted by a beeper from a container that has arrived at an individual's property. The answer to this question involves potentially two different kinds of inquiries. First, whether the use of this investigative technique is a search or seizure at all, regulated by the Fourth Amendment, and if the answer is no, that would, I think, end this case. Secondly, if it is a search or seizure, what quantum of suspicion must exist to support the use of this technique, and must such use be accompanied by a warrant. Now, before turning to these issues, I would like to tell the Court briefly something about how beepers or beacons, as they are called, operate, and how they are used. It is basically an FM transmitter that emits a radio signal which, when monitored, discloses the location of the beeper. There are some beepers, not the one in this case, that will also disclose when the package is being moved or opened. A beeper is a fairly expensive device. I am told it costs somewhere between $700 and $1,200. The kind of beeper used in this case is fairly small. It weighs about a half a pound, and is about three inches long. There are essentially two ways in which these devices are used. One is attached to a vehicle or vessel, car, plane, or boat, for purposes of following the movements of that, and the second is placed in some way inside a container or other object. Now, in either case, the basic purpose of this device is to be employed as an aid to surveillance to track movement. Now, the container beeper is sometimes employed for an additional purpose, in addition to tracking the movement, which is to determine whether the object, the container remains located at a particular place or, as I mentioned, in some instances, whether it has been opened. Now, car beepers are useful in a wide variety of cases, kidnapping cases, espionage cases, extortion cases, any kind of case where visual surveillance might be important. The container beeper--
William J. Brennan, Jr.: Is this device operated on a particular wavelength or something? In other words, can others hear it besides those who are monitoring?
Mr. Andrew L. Frey: --Yes, it is a radio signal, and it could be picked up by others. It is just a beep, beep, beep.
Speaker: Yes, but it is a--
Thurgood Marshall: --Only FM can pick it up?
Mr. Andrew L. Frey: I think you would need an appropriate receiver. I am not sure of the technology, but I think a receiver tuned to the right frequency will, if it was close enough--
Warren E. Burger: Is it any different fundamentally from the directional signals given to airplanes to guide them?
Mr. Andrew L. Frey: --I don't think it is. It is much less powerful. The range of these things--
William J. Brennan, Jr.: But I take it... could everyone in the... was it a house, wherever the chloroform vat was? Where was that? A barn or--
Mr. Andrew L. Frey: --It was... it was discovered when the search took place outside the cabin in a barrel, under a barrel.
William J. Brennan, Jr.: --Yes, but anyone in the cabin ought to have been able to hear it?
Mr. Andrew L. Frey: If they had the right equipment and tuned it to the right frequency.
William J. Brennan, Jr.: But not without the equipment.
Mr. Andrew L. Frey: No, but I think the equipment--
Speaker: It is a very high frequency signal, isn't it?
Mr. Andrew L. Frey: --I am not sure what frequency it--
Byron R. White: And you would have to... you would really have to have some equipment that is tuned right on that frequency.
Mr. Andrew L. Frey: --Well, but there are scanners that will scan a wavelength and pick up--
Byron R. White: But you would have to have that.
Mr. Andrew L. Frey: --I suppose, yes.
William J. Brennan, Jr.: I expect that will be the next step.
Mr. Andrew L. Frey: You mean, in the way of counter-surveillance.
William J. Brennan, Jr.: Everybody in this business will have something like this?
Mr. Andrew L. Frey: Well, it could be. There are some kinds of beepers called transponders which do not emit a continuous signal, and only emit a signal when you activate them, and they are less subject to being discovered by these means.
William J. Brennan, Jr.: Intercepted.
Mr. Andrew L. Frey: In any event, fortunately, this mode of counter-surveillance is not extensive at this point.
William J. Brennan, Jr.: It will be if it is sustained.
Mr. Andrew L. Frey: Well, that may be, although for a number of years these devices have been being used, and with considerable success.
Sandra Day O'Connor: Mr. Frey, do we focus in this case on the use of the beeper to locate the cabin, or the use of the beeper to locate the barrel on the premises?
Mr. Andrew L. Frey: No, the cabin itself. What was held to be improper by the court of appeals was the monitoring of the beeper while it was on the property. The only piece of information that was used, that was garnered from the beeper that was relevant to the search warrant application, and this is a fruits case... nobody questions that the warrant itself was supported by probable cause... was the knowledge that the container of chloroform was on Respondent Knotts's property. Now, the beepers are, as I say, expensive. Their use is hardly an everyday occurrence. Its use is usually accompanied by airplane surveillance, car surveillance by a number of agents. But although it is not frequent, it is hard to estimate its utilities. It is absolutely essential in investigations like this that the existence of surveillance not be discovered by the suspects. And in this case, as in many others, suspects do use counter-surveillance techniques, erratic driving, sudden U-turns, and various other things to try to detect the presence of and to throw off visual surveillance. With the use of the beeper, you do not need to maintain eye contact with the vehicle that you are following and are able to mount a more effective surveillance of the public movements of the car on the highway. Also in the drug manufacturing cases such as this, it is common practice for the suspects to acquire chemicals gradually, store them at various locations, move them from place to place. Sometimes the chemicals will be acquired 1,000 miles from where the laboratory is to which they are ultimately transported, and the maintenance over a period of time of physical surveillance would be incredibly costly and very difficult to do without being detected. Now, turning to the specific legal issues in this case, there are two somewhat different types of issues raised, as I mentioned, one, whether there is a search, and second, what procedures and quantum of suspicion would be necessary if it was.
Warren E. Burger: Do you mean whether there is a search when the beeper is affixed to the--
Mr. Andrew L. Frey: No, there is no issue in this case of that, and indeed at the time it would belong to the chemical company. The question is whether the monitoring of the airwaves by the receiver which picks up the signal which is being emitted by the beeper is a search.
Warren E. Burger: --Without giving notice to the other party.
Mr. Andrew L. Frey: Well, obviously, notice would render the whole investigation impossible. This is not a search in the traditional sense. It is not the uninvited eye or uninvited ear that is seeing or hearing what is going on in private areas. In fact, all that is examined in this search is the airwaves around the receiver being operated by the officers. Now, of course, Katz teaches that even such activity may be considered a search regulated by the Fourth Amendment, but whether it is depends on whether what is disclosed by this kind of activity is private or non-private information.
Warren E. Burger: What is the range of this signal? Does the record show that?
Mr. Andrew L. Frey: I am told that it is normally, in open country, about two to four miles on the road, and in the city it may be only several blocks.
Warren E. Burger: Any open field questions in this case?
Mr. Andrew L. Frey: No, I don't believe the Court has to deal with any in this case. Aircraft are used because from the air the signal can be picked up at a longer distance, and the range, I am told, is 20 to 50 miles, and that is why you often lose track in the automobile surveillance, because you are not keeping eye contact, and if the suspect gets two or three miles away from you, you may lose the signal.
John Paul Stevens: I take it it is not just a matter of distance, but it is a direct line from the transmitter to the receiver, so if you had obstacles in the way--
Mr. Andrew L. Frey: And whether there are obstacles in the way, yes. Now, this question of whether this use of the beeper in this case was a search is quite similar to the issue the Court confronted in Smith against Maryland, which involved the monitoring by use of a pen register of phone numbers dialed from the suspect's home. The Court held that it was not a search, in large part because the information acquired was not private information. Now, so here, the monitoring of the transmitter to follow the co-defendant's car while it moved on the public highways would not be a search, and indeed neither the court of appeals nor Respondent has suggested otherwise.
Warren E. Burger: --Do you see any analogy between this and having an airplane, a helicopter just follow them by visual contact?
Mr. Andrew L. Frey: Well, it is similar.
Warren E. Burger: Are these searches?
Mr. Andrew L. Frey: Of course, if you followed them closely, they would know that they were being followed, and it would affect the effectiveness, but it is--
Warren E. Burger: Well, let's make it an automobile then.
Mr. Andrew L. Frey: --It is similar to, let's say, painting a stripe, a fluorescent stripe on the top of the car to facilitate visual surveillance. What is being learned from an automobile beeper or from the use of the container beeper in this case was the movements of a vehicle on the public highway, including the turning onto any private property. Those things are not private events. Nobody has a right to keep people from knowing those things, and under the analysis in Smith, those things are not a search. Now, I think the court of appeals even suggests, and I am not sure that Respondent contests that if they had managed in this case to maintain continuous surveillance, beeper surveillance of the vehicle as it went across the roads and ultimately onto Knotts's property, there would have been no Fourth Amendment problem. The problem arose because they lost track of the vehicle and of the beeper, and by the time they turned it on, it was situated on Knotts's property, and the court in effect takes a strict liability position, that the government has no way of knowing, of course, where the container is, because only by using the beeper do you find that, but the government is out of luck if when they use the beeper the container is then located on private property. Now, the situation that Respondent wishes to analogize this case to is the situation in which a beeper is used to monitor, let's say, the continued presence over an extended period of time of a container inside somebody's house, or to monitor such activity inside somebody's house as the opening of a container. Those things are different, because those are not public events, and arguably those things would properly be classified as a search under the Katz test. But in this case, the only fact that was used, the court of appeals held was tainted in getting the warrant was the fact that Petschen's car had driven with the container onto Knotts's property. Now, I will assume from now on that something that happened here is held to be a search, and I want to discuss the questions that arise in that event, and there are basically two. The first question--
John Paul Stevens: Before you go on to the second issue, Mr. Frey--
Mr. Andrew L. Frey: --Yes.
John Paul Stevens: --can I ask you this question? You have described it as though the question is whether the monitoring of the beeper is the focus of the inquiry.
Mr. Andrew L. Frey: Yes.
John Paul Stevens: What if we focused instead on the question of whether the installation of the beeper was not the act which gives rise to the question whether there is an invasion of privacy of some kind?
Mr. Andrew L. Frey: Well, there would be in these chemical company cases no standing, if I may use that term, to complain about the installation, and in the automobile cases where there is a nominal--
John Paul Stevens: Confining it to container beepers for the moment, would your argument be just as strong, do you think, if instead of having the consent of the manufacturer and so forth, you had waited until there had been a transfer of title to the purchaser, and then somehow it was left in an abandoned place and an agent was able to insert a beeper. Would you say that would be the same case?
Mr. Andrew L. Frey: --I think it would depend on whether the insertion of the beeper required an opening and--
John Paul Stevens: Assume it did not. Assume there is some way to stick it on the bottom or something.
Mr. Andrew L. Frey: --I think it would be the same case.
John Paul Stevens: You think it would be the same case?
Mr. Andrew L. Frey: It would--
Byron R. White: It would be the same case as the automobile case.
Mr. Andrew L. Frey: --It would be the same as the automobile case, and in both cases I would say that--
John Paul Stevens: But the difference is, in the automobile it is not going to go in anybody's home, whereas by hypothesis this may.
Mr. Andrew L. Frey: --Well, but whether it... the importance of it being in somebody's home has to do with the monitoring of activities inside the home. The fact that it goes into the home is of no consequence except insofar as you learn something that is going on inside the home by virtue of use of the beeper.
John Paul Stevens: Well, you learned here by using the beeper that the chemicals went into this cabin, I guess it was, and you are pretty sure--
Mr. Andrew L. Frey: We don't know whether it went into the cabin. What we know is only what we could have learned if we had been able to maintain visual surveillance, which is that they were carried to this cabin. We don't know whether they were in the cabin or outside the cabin, and we did not in this case use, as has been done in some other cases, use the beeper to monitor continued presence over a period of time.
John Paul Stevens: --Well, the information gained by use of the beeper plus your additional information was rather persuasive that the thing was inside the cabin. I mean, because you had probable cause to go in the cabin.
Mr. Andrew L. Frey: It was persuasive to establish that there was a clandestine... probably a clandestine laboratory present at the cabin. In fact, we expected and found--
John Paul Stevens: That's how you got the warrant.
Mr. Andrew L. Frey: --much more than just the can of chloroform. We found thousands of dollars of equipment, and--
John Paul Stevens: The question I am leading up to is whether... I wonder whether you think, given all the information you had, at the time the beeper was installed, you might have then gotten a warrant which would authorize an entry into the place where the container went.
Mr. Andrew L. Frey: --Well, I have a couple of difficulties that I think should be pointed out about the warrants in this case. I was going to get to that later, but I will get to it now. One of the problems is that you cannot comply with the particularity requirement of the Fourth Amendment, because you cannot particularly describe the place to be searched. Now, a second problem under Rule 41 is that it will often be the case that the magistrate or judge to whom you go will not have authority to authorize a search wherever the container may end up. In this case, the only time we could have gotten a warrant was in Minnesota. We would have gone to a magistrate in Minneapolis. He has no authority to issue a warrant to search a house in Wisconsin. We didn't know whether this was going to Wisconsin or where. Now, the court could craft, or Congress, if it wished, I think, would clearly have the power to craft some procedures to regulate the use of beepers, but it is certainly not easy without bending the Fourth Amendment's warrant clause somewhat to have a beeper warrant in this kind of case.
Thurgood Marshall: Well, the beeper sort of ends up as the... what do you call it, the affidavit in a search warrant.
Mr. Andrew L. Frey: Excuse me?
Thurgood Marshall: The beeper ends up as a sort of affidavit in support of a search warrant.
Mr. Andrew L. Frey: The beeper provides us with a fact that is useful--
Thurgood Marshall: That's what I mean.
Mr. Andrew L. Frey: --in obtaining a search warrant. This is another point about the warrant that I think is important, is that in the vast majority of these cases, when a real search takes place, there will be a warrant procured, and all the information that would have been presented to the magistrate to get the beeper warrant will be reviewed, and if that information did not make out probable cause, unless more information has been acquired that does contribute to probable cause, a warrant won't be obtained. In any event, this whole procedure will not ordinarily be free of some kind of meaningful judicial review before there is a really intrusive search into private property. Now--
Thurgood Marshall: Well, you have already invaded the private property with the beeper.
Mr. Andrew L. Frey: --Well, yes.
Thurgood Marshall: That could be argued, couldn't it?
Mr. Andrew L. Frey: We have placed the beeper in and the property becomes at some point the Respondent's private property, although not until it went through several hands and landed at his property. But I understand the gravamen of Respondent's argument in this case to be that it was the search of his home from monitoring the beeper signal that violated the Fourth Amendment, and so I have been addressing my argument principally to that contention, and that, I think, is what the court of appeals found. And I do believe that that is the only viable contention that could be made in this area. Now, if this is a search, there are two questions. Is probable cause necessary to support the search, or can it be done on reasonable suspicion, or something less? And if probable cause is required, is a warrant required? Now, of these two questions, by far the most important as a practical matter is the question of whether it can be conducted on reasonable suspicion. And in fact, as a practical matter, if the Court holds there is a search, it will cause no problems if it allows it to proceed on the basis of reasonable suspicion, because this simply is not a device that is used on a random basis without a substantial basis for expecting that it will produce evidence useful in a criminal investigation. So, as a practical matter, although there are theoretical problems with holding this a search, as a practical matter, the important question for us is whether these devices can be used on the basis of a reasonable suspicion of criminal activity--
John Paul Stevens: Mr. Frey, I don't mean to interrupt too often, but I want to be sure I understand. When you say holding this to be a search, you are saying holding the monitoring of the beeper as opposed to the installation of the beeper.
Mr. Andrew L. Frey: --Yes, sir. I don't understand there to be a contention in these cases... in this case that the installation of the beeper is a search, and indeed, I don't... it does not disclose any fact. It is completely blind until you turn on your receiver and listen to it. So I--
John Paul Stevens: So your argument is directed to the case in which we assume sort of as a starting premise that there is nothing wrong with the installation, it is just how long can you listen to it, and when, if ever, does listening to it become a search.
Mr. Andrew L. Frey: --Yes, it is addressed to that. And I might note that where, for instance, with aircraft transponders, where you have to enter the aircraft in order to implant the device, we normally do get a warrant, and we would recognize the entry into the aircraft and the exposure to official view of the interior of the aircraft as being a search.
Warren E. Burger: Would the installation of this electronic device be in principle different from planting an undercover agent in the laboratory who would then send out signals to locate the place?
Mr. Andrew L. Frey: Well, there is not the same... There are two differences. One is, the undercover agent sees an awful lot more than this beeper discloses. On the other hand, the undercover agent is presumably there with some kind of knowing consent that the defendants in this case did not have. That is, they may not know that he is an undercover agent. Now, there is an analogy. I mean, you might say that they know that this is a can of chloroform that they are taking, but they don't know that it is a disloyal can of chloroform. I have some difficulty under Katz with the notion that that argument would really carry the day for us.
Byron R. White: Well, you did monitor this beeper when it was in the house, as far as you--
Mr. Andrew L. Frey: No, we don't know whether it was in the house or not.
Byron R. White: --Well, you don't know that it wasn't.
Mr. Andrew L. Frey: We don't know. That's right.
Byron R. White: I mean, the last time you heard it, you don't know--
Mr. Andrew L. Frey: We heard it one time when it was somewhere on Knotts's property.
Byron R. White: --What happened after that?
Mr. Andrew L. Frey: What happened after that was, we established visual surveillance for a couple of days to... It is very important in these manufacturing cases--
Byron R. White: Yes, yes.
Mr. Andrew L. Frey: --to catch as many conspirators as possible together, and because they have to get pretty far along before there is a prosecutable attempt, you preferably want to catch them when they are in the process of manufacturing.
Sandra Day O'Connor: In fact, it was found outside the house, was it not--
Mr. Andrew L. Frey: It was.
Sandra Day O'Connor: --the can? Do you agree, Mr. Frey, that if the beeper had been used to monitor at the location of the barrel on the premises, to tell you where it physically was located, for example, within the house, that that would constitute a search?
Mr. Andrew L. Frey: Well, I would certainly say that that would be a different case, and I think there would be a much stronger argument for the proposition that that would be a search.
Sandra Day O'Connor: Well, would you agree that it is or is not, rather than just a tougher case?
Mr. Andrew L. Frey: Well, I would prefer to have to argue that case when it arose, but I think a lot depends on what information is actually learned, but I think--
Sandra Day O'Connor: You locate it in the bedroom of the house.
Mr. Andrew L. Frey: --Well, I will say tentatively, if I may, that that is a search subject to the right to withdraw any such concession if a case came along and--
Byron R. White: Is that practical to locate... to have a directional finding that accurately?
Mr. Andrew L. Frey: --I don't know enough about the technology to know that, but this case does not involve learning anything except that this container was taken to Knotts's property.
William H. Rehnquist: Why don't you let us be the judge of what this case involves knowing about? I for one would like to know a little bit more about the beeper than you've told us so far, about how it does monitor and that sort of thing. I think this kind of broad, general statements about, it was in the house, it wasn't in the house, we don't know where it was, light might be shed upon it if we had some idea of the... what happens, how far away is the thing that is monitoring the thing, how does it monitor?
Mr. Andrew L. Frey: Well, what I can tell you about this is that the beeper emits a signal at regular intervals, just a blip that may be at a two-second interval, and by the strength and direction of that signal, you can locate the... where it's coming from. Now, as I mentioned before, from ground surveillance, normally it will carry about two to four miles in open country, so that if... anybody who was tuned to the right frequency within that distance could pick up this signal. From the air, I am told 20 to 50 miles is the distance on which you can monitor it. All you get is blip, blip, blip, which says, I am here, I am here--
William H. Rehnquist: And when you are away from it, your task is simply to hone in on it, I suppose, or to keep track of it.
Mr. Andrew L. Frey: --Well, that's what... what you do is by the direction and strength of the signal, you are able to identify where the signal is coming from. It is like radar, I suppose.
William H. Rehnquist: Or sonar.
Thurgood Marshall: Mr. Frey, I think I misconstrued it. There is nothing wrong with transporting the chloroform. That wasn't a crime.
Mr. Andrew L. Frey: Unless it was... There was something wrong in this case, because it was an act in furtherance of a conspiracy to commit a crime, but there is not intrinsically anything wrong with transporting it.
Thurgood Marshall: The transporting of chloroform qua transporting chloroform is not a crime.
Mr. Andrew L. Frey: No.
Thurgood Marshall: Well, what I was saying, the crime did not occur any place in Minnesota. No crime occurred in Minnesota.
Mr. Andrew L. Frey: Well, I can't... In that sense, no crime occurred even when they conducted the search, because the chloroform was still sitting there innocently under the barrel with the laboratory 30 yards away. But there was still a crime. The crime was attempted manufacturing of methamphetamine--
Thurgood Marshall: And they went all the way back to Minnesota.
Mr. Andrew L. Frey: --That crime took place both in Minnesota and in Wisconsin. I would want to make the point that even perfectly innocent activity, walking down the street to have lunch, is subject without being regulated by the Fourth Amendment to visual surveillance, bloodhounds, radar, night glasses, many--
Warren E. Burger: Don't try it on Sam Irvin.
Thurgood Marshall: Don't try any of them on me.
Speaker: 0 [Generallaughter.]
Mr. Andrew L. Frey: --I am sure we would have no occasion to do so. I would like to reserve the balance of my time.
Warren E. Burger: Very well. Mr. Peterson.
Mark W. Peterson: Mr. Chief Justice, may it please the Court, before going to the issues and facts involved in this case, I would like to identify two things which in my view represent the... or reflect the extreme position which the government is taking in this case. First of all, in their main brief, they assert that neither the history nor the language of the Fourth Amendment reflects any intention to require warrants as a precondition to a lawful search and seizure. Now, it is difficult for me to imagine any constitutional rule which has been established by this Court other than that searches without warrants are per se unreasonable, subject only to a few specifically established and well delineated exceptions, none of which, by the way, are claimed here. Second, in their reply brief, the government strongly criticizes an observation which we made in our main brief to the effect that if this Court allows warrantless beeper monitoring in any situation, which is in essence what the government is asking for here, that rule would allow virtually unlimited monitoring of our private lives. Pursuing that, in their reply brief, the government suggests that what we are attempting to do is to divert the inquiry which is made in this case into a question of potential for abuse, further accuses us of conjuring up what they call a pessimistic vision of police activities which is far removed from reality.
Warren E. Burger: What would you say, Mr. Peterson, if in a kidnapping case, for example, all of the bills were impregnated with some chemical which would get onto the fingers and hands of anyone who touched it and could not be removed for quite a long time, but was something that could not be observed? And that led ultimately to the unfolding that we have here? Would you say that was an invasion of privacy, too?
Mark W. Peterson: I would not call that an invasion of privacy, at least not an illegal--
Warren E. Burger: Would it have a negative... Would it have the consequences you are arguing for here?
Mark W. Peterson: --No, it would not have the consequences I am arguing here, because that would be a permissible police or bank practice which would be allowed under the exigencies of the situation. Obviously, when someone goes in to rob a bank, whether it was the bank or the police officers responsible for placing this material on the bills which would end up on the hands, there would have been no time to get a warrant.
Warren E. Burger: All right. Now let's change it to money bags, a whole lot of money bags that are in a Brinks truck or in a bank. And the bags are equipped in some way with an electronic device such as was used here, and then the property was stolen either from the bank or from the Brinks truck, and it is followed, just as it was here. What would be your analysis of that?
Mark W. Peterson: Well, no warrant would be possible in that case, Your Honor, because once again we would have an exigent circumstance where it would not be possible to obtain a warrant. We have conceded in this case that following--
Warren E. Burger: Well, but the warrant... let's assume that just as here, after this signal came to rest in one place, in the same manner as it was monitored here, then the police or the agents move in with a warrant which they have got on the basis of the electronic signal.
Mark W. Peterson: --We would have a more difficult case in that instance, Mr. Chief Justice, because of the fact, number one, the bag of bank money would be contraband in itself. The person who took it--
Warren E. Burger: Why is it contraband? Money is innocent in and of itself, and very good in the minds of most of us.
Mark W. Peterson: --It is stolen property, though, and in that situation he would have no right to possess it, whereas in our situation here, the defendant had the right to possess the can of chloroform.
Sandra Day O'Connor: Mr. Peterson--
Warren E. Burger: --For the purposes that he purchased it and ultimately was using it?
Mark W. Peterson: He certainly, and again, we don't have it in the record. He certainly did not have the right to use chloroform to make methamphetamine or amphetamine, but--
Warren E. Burger: Well, are you challenging that that is part of this whole package?
Mark W. Peterson: --Oh, certainly not.
Warren E. Burger: Well, then, why is it different from the money?
Mark W. Peterson: Because it is... stolen money is contraband per se. Chloroform which is lawfully purchased is contraband only when it is used for an illegitimate or illicit purpose.
Warren E. Burger: Well, when it is found in the laboratory where they are making prohibited drugs, is it not as much contraband as the money, assuming the money is contraband, which I am not sure of?
Mark W. Peterson: Well, the money, Mr. Chief Justice, is something which the defendant in that case would clearly have no right to possess. The chloroform here was a material lawfully possessed which was subject to forfeiture because it could be and obviously was going to be utilized in the illegal drug factory, so--
Warren E. Burger: Well, what you have persuaded me of by that response is that the money and the chloroform are identically the same under the Fourth Amendment.
Mark W. Peterson: --I would submit that they are not, Your Honor, because one is contraband per se and one is not.
Warren E. Burger: I thought you said that when it is in the laboratory for use in making illegal drugs, that it is contraband, part of an illegal operation.
Mark W. Peterson: If I said that, Mr. Chief Justice, I meant to say--
Warren E. Burger: You said--
Mark W. Peterson: --that it is subject to forfeiture, which means that it could have been taken away from him if it were determined that it was going to be used for an illegal purpose.
Warren E. Burger: --But you have just previously said you do not challenge that it was to be used for that illegal purpose.
Mark W. Peterson: I do not challenge that, and for purposes of this case, I don't think that it makes any difference.
Sandra Day O'Connor: Mr. Peterson, I suppose the state of origin could require a purchaser of precursor chemicals to give their name and the destination of the chemicals as part of the regulatory scheme, could it not?
Mark W. Peterson: I would imagine that they could, Justice O'Connor.
Sandra Day O'Connor: So how is use of the beeper to determine where the chemicals went different from the state requiring that disclosure in the first instance?
Mark W. Peterson: Well, the mere fact, Justice O'Connor, that someone would write down their name and their address and where a particular chemical is going obviously does not mean that it would necessarily end up there, but--
Sandra Day O'Connor: Well, they might lie about it, I suppose, but we are talking about the basic interests at stake here, and what greater interest in the ultimate destination of the chemicals does the owner of the property have than he would have if the state asked in the first instance when they were purchased where it was going.
Mark W. Peterson: --He does not have any greater interest than he would have in that situation, and the government would still have to get a search warrant before they went into his house to seize those--
Sandra Day O'Connor: Sure, and the government did that, based on this information. Let me ask you another question, Mr. Peterson. I guess you agree that if the narcotics agents had been better drivers, they would have been able to follow the vehicle in the first place, and discover that it had arrived at the cabin with the barrel of chemicals.
Mark W. Peterson: --In the hypothetical sense, that is true, Justice O'Connor, but in this situation, I don't think it can be shown to be true by the record, because as the record will show here, the reason that surveillance was terminated in the first place was because the co-defendant was engaged in what the agents determined to be evasive driving, and therefore they cut it off. From that, I think it is fair to assume that had they continued to follow him as he drove in the rural area of Wisconsin, he probably never would have gone to the Respondent's home in this case.
Thurgood Marshall: Mr. Peterson, help me a little. Why didn't you object to putting the beeper in in the first place?
Mark W. Peterson: Justice Marshall, I am not sure I understand at what point--
Thurgood Marshall: I understand that you have no Fourth Amendment problem with the putting of the beeper in the container.
Mark W. Peterson: --No. I am sorry--
Thurgood Marshall: And your Fourth Amendment problem does not come up until the private home is involved. That is your position.
Mark W. Peterson: --The reason that no objection to installation of the beeper in the drum of chemicals was made is that it was purchased by a second co-defendant, then transferred to the first co-defendant, and therefore we would have no "standing" to object to something that happened to someone else's property. That is why it was not raised at an earlier stage.
John Paul Stevens: Well, I am not sure that is an adequate answer, because he was held not to have any standing, either. In fact, he was convicted, wasn't he, because he... the one who actually bought the stuff?
Mark W. Peterson: The one who actually bought the stuff, Justice Stevens, was convicted by a plea of guilty. The one who drove it to my client's house was found to have no "standing" to object to the search because it wasn't his house.
Speaker: I see.
Harry A. Blackmun: Mr. Peterson, you have used the words "house" and "home". Does the record show this was Mr. Knotts' resident?
Mark W. Peterson: Yes, it does, Justice Blackmun.
Harry A. Blackmun: A permanent residence up in the Shell Lake area?
Mark W. Peterson: It doesn't show whether it was permanent, Justice Blackmun, but it does show that it was his residence. In fact, that was conceded by the government below.
Harry A. Blackmun: What is the difference between residence and permanent residence, in the way you have used them?
Mark W. Peterson: I don't mean anything by using different terms, Justice Blackmun. I mean by residence or premises a place where a person resides, and is clearly entitled to Fourth Amendment protection, and we submit that he was entitled to that protection here.
William H. Rehnquist: What does the record show, Mr. Peterson, about the nature of his use of that building?
Mark W. Peterson: Justice Rehnquist, the record only shows that he lived at this premises with his wife as his home.
William H. Rehnquist: Where did it show that? Or could you just tell me generally? I can find it myself. Are there findings or something like that?
Mark W. Peterson: I believe in the district court's opinion which is appended to the petition for writ of certiorari, it is shown there. I don't believe in the Joint Appendix that that particular fact is shown.
Thurgood Marshall: The question is whether he was living in his factory or had his factory in his home.
Mark W. Peterson: Justice Marshall--
Thurgood Marshall: And it looks to me like he was living in his factory.
Mark W. Peterson: --He had his factory in his home, Your Honor.
Thurgood Marshall: Well, it looks to me like he was living in his factory. That is why I was interested in the question. Is there any way to find that out? Judging from what you say, there is nothing in the record on it.
Mark W. Peterson: There is nothing in the record, Justice Marshall.
Warren E. Burger: For purposes of the Fourth Amendment, a person could have three or four homes, could he not? If he is living in the place, then does it not fall under the Fourth Amendment?
Mark W. Peterson: Yes, it does, Mr. Chief Justice.
Warren E. Burger: And he might have four of those places.
Mark W. Peterson: He might have.
John Paul Stevens: May I go back, please, to Justice Marshall's question of a moment ago, about you are not challenging installation itself? Is it correct then that for purposes of our analysis, we should take the case as though someone without any government participation at all had placed the beeper on the can, say a volunteer working for the chemical company, who later on told the police officers, I was suspicious of these people, and I put a beeper on it, and then the question is, the monitoring is the only issue. Would that be a fair analysis?
Mark W. Peterson: That would not be, Justice Stevens. It is clear that the state narcotics agents supplied the--
John Paul Stevens: Oh, I know they in fact did it. I am not questioning that. But I mean for purposes of your Fourth Amendment claim, which as I understand your response to Justice Marshall, arises after the beeper was installed, and therefore involves no attack on the installation of the beeper itself. Therefore, it seems to me the issue must be the same as if an innocent third party put it on and later told the police, this is what I have done, if you want to follow this thing, go ahead and listen to it.
Mark W. Peterson: --No, Justice Stevens, I don't think you can look at it that way, because if it arose in the scenario that you have just described, then we would have no state action, and therefore the Fourth Amendment would not be applicable.
John Paul Stevens: You would have state action. They have listened. And as I understand it, the listening when the monitor... when the device goes inside a private premises, it is actually out in front, I guess, but that that is the search that troubled the court of appeals.
Mark W. Peterson: Perhaps I--
John Paul Stevens: It was state action. I don't think there is any doubt about that. They followed it, and they turned on the right frequency, and they kept track of it, and sent an airplane to look for it, and all that sort of stuff.
Mark W. Peterson: --I guess my only answer is that I am not so certain that that would constitute state action, but if it does in the view of the Court, then for the purposes of the decision in this case, it makes no difference. One thing the government has claimed here in their brief is that they suggest that warrants should not be required for beepers here, because in any case the police would have no way of knowing in advance where the beeper would end up. Now, in a vacuum, that is true, that the police would have no way of knowing where a beeper which is installed either on a car, in a chemical drum, or have you, would end up, but I think that it is rather disingenuous to assert that here, because prior to installation of the beeper in this case, they had already located one clandestine drug laboratory at a residence, and two, they obviously know that most people who engage in this type of activity do not manufacture their product in a public place. We are submitting that the result which we seek in this case would not prevent the warrantless use of beepers only to assist surveillance which is generally the use to which beepers are put. Our only contention is that if there is a possibility that the item to which a beeper is attached on or installed in is likely to end up at a person's residence, then a warrant is required.
Warren E. Burger: When would the warrant be required? At the time they put it on the drum of chloroform in the warehouse of the pharmaceutical company?
Mark W. Peterson: I believe that would be the--
Warren E. Burger: Or at the time of the transfer?
Mark W. Peterson: --Normally when a beeper is installed in a chemical drum or what have you, they already have previous knowledge that someone who is apparently involved in illegal drug activity is going to pick it up. Therefore, it makes no difference whether the warrant were obtained prior to the time that that person came to pick it up or at the time of the transfer to that person. The same type of limitations and presumably the same type of probable cause for installation of the beeper would obtain.
Warren E. Burger: What is the illegal activity that is going on, and to which this warrant would be aimed, when the chloroform drum is sitting in the warehouse of the drug company?
Mark W. Peterson: There is none, Mr. Chief Justice.
Warren E. Burger: On what basis would a magistrate issue a warrant for a lawful, innocent drum of chloroform in a warehouse?
Mark W. Peterson: Well, once again, these cases do not arise generally or at least in my experience until the agents already have some substantial information that one or more people are apparently engaged in the illegal manufacturing of drugs, or at least they are purchasing large quantities of chemicals which are consistent with the manufacture of drugs.
Warren E. Burger: Well, do you say that they should get the warrant to put the electronic device on the drum, or get a warrant to monitor, to listen to the signal? Which is it?
Mark W. Peterson: Our contention here, Mr. Chief Justice, is that they should get a warrant and the Constitution requires them to get a warrant if they are going to use the beeper which has been installed either to determine the location of non-contraband property at a person's residence or to monitor its continued presence at that location. Those are the circumstances under which we are--
Warren E. Burger: Well, what if is a beeper that is sought to be put on a plane by undercover agents down in Bogota, Colombia, because they know that a couple of million dollars worth of heroin or something is going to be transported on an airplane? Any authority on a U.S. magistrate or any magistrate in the United States to put a beeper on an airplane down in Bogota, Colombia?
Mark W. Peterson: --I am not aware of any such authority, Your Honor.
Warren E. Burger: Is that fundamentally different from the problems we have here?
Mark W. Peterson: I think it is fundamentally different, Mr. Chief Justice, because--
Warren E. Burger: Well, if the agents were putting it on the airplane down at some air base there, air force port in Bogota, or on the outskirts, they would be doing it for the purpose of following that airplane to see if it landed in the United States with its contraband drugs.
Mark W. Peterson: --That's correct, Your Honor, but again, this goes back to the fact that you can follow vehicles, whether they be airplanes or automobiles, in a public space, in this case public air space, because there is no legitimate expectation of privacy as you are traveling in that particular area.
Warren E. Burger: But then it lands in an airport, a concealed airport out in the Everglades of Florida, and they run it into a hangar, to conceal it from the air, and the hangar is where four or five people live, and unload the illegal drugs.
Mark W. Peterson: I have to admit--
Warren E. Burger: Parallel to this case, or not?
Mark W. Peterson: --Pardon me?
Warren E. Burger: Parallel to this case?
Mark W. Peterson: Well, there certainly are a number of similarities. The case that you have posed would be a far more difficult one for me to argue than this case is, but I still would submit that there is a colorable claim that even in that hangar, assuming that it was the person's living quarters, he would have a colorable claim of Fourth Amendment protection. I would like to comment just briefly on a couple of things that came up during the government's argument. First, Mr. Frey has asserted that in cases like this, in other words, drug manufacturing cases, beepers are essential. I have no doubt as to the accuracy of that statement, but that certainly is no justification and no reason for claiming that it is difficult to get a warrant. Secondly, the government asserts that all that was learned through use of the beeper was that Mr. Petschen went to the cabin after they lost surveillance contact with him. I think it is important to note that in this case, the basis of the search warrant was the fact that the beeper drum had been... had become stationary at the Respondent's residence, and that was one of the bases upon which they obtained the warrant. I want to make it clear that we do not necessarily concede that merely because Petschen may have arrived at Knotts' property, even assuming that the state agent saw that, that that would have established probable cause. One thing that also came up during the government's argument in questioning by Justice O'Connor, your questions to the effect that, does it make any difference where the beeper drum is located on the property for purposes of determining whether or not there was constitutional protection. It would be our position in this case that once the drum was on the curtilage of this property, which, as the record shows, contained No Trespassing signs on the front and was in a secluded area, it doesn't make any difference whether the drum was located inside the house, close to the house, or any place else in the curtilage. It seems clear--
William H. Rehnquist: If you go to the curtilage, you are confronted with the open fields doctrine of the Hester case, aren't you? If you say it didn't make any difference if it was 100 yards away from any structure, so long as it was within the bounds of his real property?
Mark W. Peterson: --That's what the Hester case says, Your Honor, and I am not really sure whether the rule which was announced in Hester has really survived the decision of this Court in Coolidge versus New Hampshire.
William H. Rehnquist: Well, it was quoted with approval in at least two cases that have been decided by this Court since Coolidge.
Mark W. Peterson: Yes, Justice Rehnquist.
William H. Rehnquist: Do you still think that?
Mark W. Peterson: It is generally cited for the--
William H. Rehnquist: Cited by whom?
Mark W. Peterson: --By the courts which cite it.
William H. Rehnquist: Well, would you take their view in preference to ours?
Mark W. Peterson: Oh, certainly not, Justice Rehnquist. I was just indicating that Hester is generally cited for the open fields doctrine, and I haven't seen anything in this Court's decision which has dealt with the trespassory aspects of that case where the IR agents assumedly trespassed when they were on Mr. Hester's property and observed the conduct between Hester and another that they observed. The reason I suggest that I am not sure that the trespassory part of Hester has survived Coolidge versus New Hampshire is because in that case, this Court dealt with, among other things, the search of the automobile which was located in plain view--
William H. Rehnquist: Well, do you think Coolidge versus New Hampshire has survived, might be a more appropriate question.
Mark W. Peterson: --For this proposition, I do, Justice Rehnquist. There is language in that opinion to the effect that absent exigent circumstances, you cannot go on private property to conduct a search without a warrant, and it makes no difference how much probable cause you have got, and as far as I know, that language has not been disapproved by this Court. The government also takes the position in this case that just because the beeper says, here I am, and nothing more, that the invasion of privacy, if any, which occurs is thereby minimal, and it should not be called a search, and no search warrant should be required. I would submit to this Court that "here I am" is exactly what the invasion of privacy is about. It is the right to be let alone, and it means that the government cannot find out either what you are doing or what you are possessing on your premises without a judge authorizing them to do so, and I--
John Paul Stevens: Would you tell me in that... if you had... if we had a warrant requirement for this sort of thing, what exactly would the government ask for permission to do?
Mark W. Peterson: --They would ask for permission to monitor the travels of the item to which the beeper is attached. They might also ask to monitor the location of the item. Whether or not they would ask for that, I don't know, but there might be some difficulties in a judge authorizing that without some showing that the location was likely to be a place where criminal activity was involved. Obviously, the issuing magistrate would have to put a time limit upon the beeper, the permissible time for monitoring, whether it could be used for just... just to assist surveillance or location monitoring as well.
Speaker: To define the scope of the monitoring, in other words.
Mark W. Peterson: Correct.
Thurgood Marshall: Mr. Peterson, suppose these people had put a little gadget on this chloroform which when you opened the can an alarm goes off. Would you make the same argument?
Mark W. Peterson: And the beeper which was--
Thurgood Marshall: No, there is no beeper. This is an alarm. A bell ringing.
Mark W. Peterson: --As long as the chemical drum was located at the Respondent's residence, and obviously that there is no warrant, I would make the same argument, because once again the government is learning something about you that it has no right to learn without a warrant. And I assume in that case if the alarm went off, that would show that you were using the chemical drum for... or at least opening it presumably for illegal purposes, and I think that a warrant would be required under that situation as well. In conclusion, ever since this Court's decision in Boyd versus the United States, the Court has recognized that the Fourth Amendment was primarily enacted to protect the citizens' indefeasible right of personal security, personal liberty, and private property. In his famous dissent in the Olmstead case, Justice Brandeis elaborated on the concept of privacy in dissenting over the warrantless use of electronic surveillance. He wrote essentially that whenever and however the government unjustifiably intrudes upon a citizen's privacy, the Fourth Amendment is violated. Now, ever since Olmstead, much constitutional doctrine has changed, but I don't think the wisdom of Justice Brandeis's dissent has, and neither has the rule that searches without warrants are presumptively invalid. We submit that what took place in this case was a search, that there is no basis for distinguishing it from any other search on the grounds that it was minimally intrusive, and therefore a warrant should have been required. Thank you.
Warren E. Burger: Very well. Mr. Frey?
Mr. Andrew L. Frey: Just briefly, I want to make an important point, if I can come to something more mundane than my colleague closed on. If you are going to require a warrant, presumably you have determined that probable cause is necessary to use this investigative technique. The problem you are confronted with is like the all or nothing problem in Terry against Ohio. If automatically... if you call it a search, it requires probable cause, the question is whether it is reasonable to bar the government from using this aid to surveillance techniques, keeping in mind that most kinds of physical surveillance do not require any kind of reasonable suspicion or probable cause. Is it reasonable to insist that the government have probable cause to believe that a crime is being committed and that this is being used, or is it satisfactory and adequately protective of individual interests, balancing the intrusion against the societal needs to allow this to be conducted on reasonable suspicion? That is involved in the decision of whether or not a warrant is to be required. Finally, if I can come back to the question that Justice Stevens asked about the installation of the beeper, installation of the beeper is not a search, and I don't think it's a seizure. It does not disclose to government eyes or ears or knowledge any fact, any information. It is an act. There are many acts that the government does xx.
John Paul Stevens: And neither does installing a wire tap.
Mr. Andrew L. Frey: Excuse me?
John Paul Stevens: And neither does installing a wire tap.
Mr. Andrew L. Frey: Well, I don't know whether if you never turned it on it would be a fourth amendment violation. We have not had a case in which the court has said that it is a violation of the fourth amendment to attach it to the wire without listening to the conversations. If there are no futher questions.
Warren E. Burger: The case is submitted.