AppflncaMIlntfy ©ff Founirillh AmnKenndinnieiiiilt to ui§® o f ElecHrcwmSc B eep ers nnn TracCdmg Bamk E&olblfoeiry Band Mouney
The w arrantless m onitoring by law enforcem ent personnel of electronic beepers hidden in bait money robbed from a bank probably does not constitute a “search” implicating the Fourth Am endm ent, even after the beeper being monitored has been taken into a home.
One w ho has com e into possession o f beeper-m onitored bank bait money by robbing a bank has no legitim ate expectation of privacy in such m oney that would be violated by the beeper m onitoring.
A lthough this form o f beeper monitoring probably does not constitute a search implicating the Fourth A m endm ent, it was recommended that the FBI should continue its practice of seeking a w arrant w hen that form of m onitoring is undertaken. However, because exigent circum stances justify the F B I's practice o f com m encing beeper m onitoring 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 em orandum O p in io n f o r t h e A s s is t a n t D ir e c t o r , L e g a l C o u n s e l , F edera l B ureau of 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 prospec tive 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 expecta 1 This O ffice has been advised that the F B I’s general p ractice, upon being informed o f a bank robbery in w hich a b eeper w as taken, is to seek a w arran t as soon as it is reasonably practicable to do so. 2 W e assum e th at the installation occurs a t the direction o r suggestion o r with the cooperation of govern m ent agents. O therw ise, o f course, the F o u rth A m endm ent w ould not apply because the Fourth Amendment does not govern private searches. United States v. Jacobsen, 466 U.S. 109, 113 (1984).
138 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 Amend ment, the result is the same where, without a warrant, the Gov ernment 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 sug gested 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 imperfec tion 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 C ourt explained: The m ere transfer to Karo o f a can containing an unm onitored beeper infringed no privacy interest. It conveyed no inform ation that K aro wished to keep private, for it conveyed no inform ation 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 o f the Fourth Amendment. 4 In Karo , it was unnecessary for the C ourt to decide w hat level o f suspicion w ould justify the issuance o f a w arrant to m onitor a beeper in a home. The C ourt said that there would be “tim e enough to resolve the probable cause/reasonable suspicion issue in a case that requires it.” 468 U.S. at 718-19 n.S.
139 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.
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AppflncaMIlntfy ©ff Founirillh AmnKenndinnieiiiilt to ui§® o f ElecHrcwmSc B eep ers nnn TracCdmg Bamk E&olblfoeiry Band Mouney
The w arrantless m onitoring by law enforcem ent personnel of electronic beepers hidden in bait money robbed from a bank probably does not constitute a “search” implicating the Fourth Am endm ent, even after the beeper being monitored has been taken into a home.
One w ho has com e into possession o f beeper-m onitored bank bait money by robbing a bank has no legitim ate expectation of privacy in such m oney that would be violated by the beeper m onitoring.
A lthough this form o f beeper monitoring probably does not constitute a search implicating the Fourth A m endm ent, it was recommended that the FBI should continue its practice of seeking a w arrant w hen that form of m onitoring is undertaken. However, because exigent circum stances justify the F B I's practice o f com m encing beeper m onitoring 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 em orandum O p in io n f o r t h e A s s is t a n t D ir e c t o r , L e g a l C o u n s e l , F edera l B ureau of 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 prospec tive 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 expecta 1 This O ffice has been advised that the F B I’s general p ractice, upon being informed o f a bank robbery in w hich a b eeper w as taken, is to seek a w arran t as soon as it is reasonably practicable to do so. 2 W e assum e th at the installation occurs a t the direction o r suggestion o r with the cooperation of govern m ent agents. O therw ise, o f course, the F o u rth A m endm ent w ould not apply because the Fourth Amendment does not govern private searches. United States v. Jacobsen, 466 U.S. 109, 113 (1984).
138 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 Amend ment, the result is the same where, without a warrant, the Gov ernment 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 sug gested 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 imperfec tion 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 C ourt explained: The m ere transfer to Karo o f a can containing an unm onitored beeper infringed no privacy interest. It conveyed no inform ation that K aro wished to keep private, for it conveyed no inform ation 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 o f the Fourth Amendment. 4 In Karo , it was unnecessary for the C ourt to decide w hat level o f suspicion w ould justify the issuance o f a w arrant to m onitor a beeper in a home. The C ourt said that there would be “tim e enough to resolve the probable cause/reasonable suspicion issue in a case that requires it.” 468 U.S. at 718-19 n.S.
139 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. Admit tedly, 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 m onitoring 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 .2 d 9 3 8 ,9 4 4 (6th C ir. 1980) (“F or Fourth A mendment purposes, there is a cle ar distinction betw een contraband and other property.”); United States v. Moore , 562 F.2d 106, 111 (1st C ir. 1977) (“W e an d o th er courts h a v e upheld the placing o f beepers, w ithout warrant, in contraband, stolen goods, and the like on the theory th a t the possessors o f such articles have no legitim ate expectation of privacy in substances w hich they have n o right to possess at all.”); United States v. Perez , 526 F.2d 859, 863 (5th C ir. 1976) (“a person w ho accepts an item o f personal property in exchange for heroin has no reasonable expectation that it is cleansed of any dev ice designed to uncover the tainted transaction or identify the parties” ). 6 The C ourt pointed out that the field te st could not even tel) the governm ent agent whether the substance w as su g ar o r talcum pow der. 466 U.S. a t 109.
140 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 warrant less 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 investiga tive 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 circum stances 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 w ere to locate a bait pack in a specific residence before it had been able to obtain a w arrant, we feel certain that a court would hold that this “search,” if it is indeed a “s e a rc h /’ was ju stifie d by exigent circum stances. The w arrantless entry o f a home is ju stified if there is reason to believe that evidence will be destroyed o r rem oved before a w arrant 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). A lthough the resolution o f this issue depends upon varying factual circum stances, in m ost cases it will be reasonable for FBI agents to assum e that if they do not locate the beeper im m ediately, it will be rem oved or destroyed. M oreover, it is im portant to rem em ber that the “exigent circum stances” exception to the warrant requirem ent justifies the physical entry of a home. This O ffice believes that a court w ould be even more w illing to find that exigent circum stances justify the “electronic entry” o f a hom e without a warrant. 8 The w arrant issued need not describe the “place” to be searched. As the Suprem e C ourt recognized in United States v. Karo , 468 U.S. at 719, “the location o f the place is precisely w hat is sought to be discovered” Continued
141 unnecessary suppression of important evidence if a court subsequently dis agrees 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 it o , J r . Deputy Assistant Attorney General Office o f Legal Counsel
* ( . . . co ntinued) through th e m onitoring o f the beeper. T herefore, an agent applying fo r a w arrant in such a case sim ply should describ e the circum stances under which th e bait pack w as taken and the length o f tim e for which beeper surveillan ce is requested. See id.