United States v. Sammy Brice Brock, United States of America v. Roger Lee Bard

Appellants, Brock and Bard, along with codefendants Bernard, Childress, and Cochran, were charged by indictment on May 24, 1978 in the District of Oregon with conspiracy to possess with intent to manufacture and distribute methamphetamine, a controlled substance, in violation of 21 U.S.C. §§ 812 , 841(a)(1), and 846 (Count I), manufacture of methamphetamine, in violation of 21 U.S.C. §§ 812 and 841(a)(1) (Count II), and possession with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 812 and 841(a)(1) (Count III). Brock and Bard were convicted in a jury trial of Counts I and II and acquitted of Count III. Both were sentenced to three year prison terms and five year probation terms to run concurrently with the prison terms. 1 We affirm the convictions.

I.

FACTS

The facts relevant to this appeal have been revealed to this court in previous appeals and appear in two previous opinions of this court. See United States v. Ber *1314 nard, 607 F.2d 1257 (9th Cir. 1979), revised, 623 F.2d 551, 553-54 (9th Cir. 1980) (Bernard I); United States v. Bernard, 625 F.2d 854, 856 (9th Cir. 1980) (Bernard II). Nonetheless, the interests of convenience and coherence will be…

concurring.

I concur in the decision to affirm these convictions. I write separately, however, for two related reasons. First, I think it important to make clear that one of the issues raised by the appellants — namely, the legality of warrantless “beeper” surveillance — is considerably more complicated than might be immediately apparent from Judge Sneed’s opinion. Other courts of appeals have faced factual situations nearly identical with the case at bar and, after rational analyses, have arrived at a conclusion directly contrary to that endorsed by today’s majority. The First Circuit, in United States v. Moore, 562 F.2d 106 (1st Cir. 1977), cert. denied, 435 U.S. 926 , 98 S.Ct. 1493 , 55 L.Ed.2d 521 (1978), the Sixth Circuit, in United States v. Bailey, 628 F.2d 938 (6th Cir. 1980) and the Eighth Circuit, in United States v. Knotts, 662 F.2d 515 (8th Cir. 1981), have held that the warrantless use of a beeper to locate noncontraband materials inside a private residence is indistinguishable from a warrantless search of that same residence. Rather than actually opening the door to determine whether certain items were inside a building, the courts reasoned, the agents instead…

concurring:

I concur fully in Judge Adams’ opinion and I concur in the result of Judge Sneed’s opinion.

Judge Adams writes separately, from the perspective of a judge from a circuit other than the ninth. Sitting as a visiting judge of the Ninth Circuit in this case, he of course finds himself bound by Ninth Circuit precedent but nonetheless moved to report that other circuits, confronted with the facts of this case, would reach a different result and, in his view, for sounder reasons than those expressed by Judge Sneed, in his opinion.

I write as a Ninth Circuit Judge bound by Ninth Circuit precedent that compels the result Judge Sneed reaches, but not bound to agree with his fourth amendment analysis.

Judge Sneed takes Katz v. United States, 389 U.S. 347 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967), as the starting point for his analysis, as do I, but we do not agree as to its import.

The petitioner in Katz was convicted of transmitting wagering information in violation of a federal statute. At trial, the government introduced evidence obtained from the attachment of microphones and recording devices to the outside of public telephone booths used by the petitioner. This Circuit,…

667 F.2d 1311 70 A.L.R. Fed. 721, 9 Fed. R. Evid. Serv. 1686 UNITED STATES of America, Plaintiff-Appellee, v. Sammy Brice BROCK, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Roger Lee BARD, Defendant-Appellant. Nos. 80-1736, 80-1737. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 9, 1981. Decided Feb. 18, 1982. James S. Coon, Portland, Or., for Brock. John S. Ransom, Portland, Or., for Bard. James McLaughlin, Asst. U. S. Atty., Portland, Or., for U. S. Appeal from the United States District Court for the District of Oregon. Before ADAMS * , SNEED and FLETCHER, Circuit Judges. SNEED, Circuit Judge: 1 Appellants, Brock and Bard, along with codefendants Bernard, Childress, and Cochran, were charged by indictment on May 24, 1978 in the District of Oregon with conspiracy to possess with intent to manufacture and distribute methamphetamine, a controlled substance, in violation of 21 U.S.C. §§ 812 , 841(a)(1), and 846 (Count I), manufacture of methamphetamine, in violation of 21 U.S.C. §§ 812 and 841(a)(1) (Count II), and possession with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 812…