United States v. Jeffrey Leonard Holmes

537 F.2d 227, 1976 U.S. App. LEXIS 7468

Opinions

PER CURIAM:

I.

The holdings of the United States District Court for the Northern District of Florida in United States of America, Plaintiff, v. Jeffrey Leonard Holmes, et al., Defendants, Gainesville Criminal No. 73-27, contained in its Order of April 25, 1974, regarding the installation of the battery-operated beacon or “beeper” in the early evening of August 3, 1973, under the right rear wheel of the appellee Jeffrey Holmes’ van, while it was parked on a lot outside a lounge in Gainesville, Florida, to-wit: (1) that the use of the beacon to monitor the movements of the van was a search subject to the Fourth Amendment, (2) that such search was illegal because of the failure to obtain a warrant for its installation, (3) that an application for a warrant would have been rejected because no probable cause existed to justify its installation, (4) that no evidence at the Moody property would have been discovered, nor would the van with its contraband have been intercepted without the aid of the beacon, and (5) the suppression of evidence as the “fruit” of the initial search, as to such issues¹ are each affirmed by an equally divided court. See, e. g., School Board of City of Richmond v. State Board of Education, 1973, 412 U.S. 92, 93 S.Ct. 1952, 36 L.Ed.2d 771; Rice v. Sioux City Cemetery, 1954, 348 U.S. 880, 75 S.Ct. 122, 99 L.Ed. 693, on rehearing, 1955, 349 U.S. 70, 73, 75 S.Ct. 614, 99 L.Ed. 897; Carter v. United States, 5 Cir., 1963, 325 F.2d 697, cert. denied 1964, 377 U.S. 946, 84 S.Ct. 1353, 12 L.Ed.2d 308; 5 Am.Jur.2d, Appeal and Error, § 902, pp. 338, 339.

II.

As to each of the remaining issues involved in said appeal² the court en banc adopts the panel opinion.

AFFIRMED in Part; REVERSED in Part.

1 . Discussed in the panel opinion, United States v. Holmes, 5 Cir. 1975, 521 F.2d 859, 864-867, under the caption “Installation and Use of the Electronic Beacon”,

2 . Dealt with by the panel opinion, 521 F.2d 859, 867-872, under the respective headings of “The ■ Issue of Standing”, “The Search of the Shed”, “Standing of Ashley, Willy and Green”, and “Validity of the Search Warrant”.