Appeal by defendant from McLelland and Martin, Judges. Order denying Motion to suppress entered 11 December 1978. Judgment entered 8 January 1979 in Superior Court, Alamance County. Heard in the Court of Appeals 22 August 1979.
Clark, Judge. Judges Erwin and Wells concur.
The substance of this case involves the Fourth Amendment implications of the use of electronic tracking devices, an issue of first impression in this State.
Defendant challenges the trial court's denial of its motion to suppress evidence on the grounds that the affidavit in support of the search warrant which was the sole authority for the search of defendant's home, was not sufficient to establish probable cause and that the search of the defendant's home was unreasonable and violated defendant's rights under the United States Constitution and applicable North Carolina law. After careful consideration, we find no merit in defendant's challenge to the trial judge's ruling on the motion to suppress.
Defendant generally asserts that his rights of privacy have been violated, although he does not specifically articulate the question of whether the electronic "beeper" has violated his rights. Nonetheless, the security and protection of persons and property provided by the Fourth Amendment are fundamental values. Alderman v. United States, 394 U.S. 165, 175, 89 S. Ct. 961, 967, 22 L. Ed. 2d 176, 187, reh. denied, 394 U.S. 939, 89 S. Ct. 1177, 22 L. Ed. 2d 475 (1969), which ". . . are to be regarded as of the very essence of constitutional liberty; and . . . the guaranty of them is as important and as imperative as are the guaranties of the other fundamental rights of the individual citizen, . . ." Gouled v. United States, 255 U.S. 298, 304, 41 S. Ct. 261, 263, 65 L. Ed. 647, 650 (1921). Consequently, the increasing use of electronic tracking devices by law enforcement agencies, the novelty of this question in North Carolina, and the potential for disrupting the privacy of those in the situation of defendant, compel us to give careful attention to the questions raised by the use of the electronic beeper in the instant case.
The search warrant sub judice was supported by the affidavit of Timothy L. Morgan, Special Agent for the Drug Enforcement Administration, which affidavit is herein summarized or quoted.
1. On 9 March 1978, John Nelson was arrested by the Chapel Hill Police Department on charges of possession of controlled substances. Nelson thereafter stated that he was a chemist in a clandestine drug laboratory which illegally manufactured methamphetamine, that the lab was temporarily out of operation due to the need for precursor chemicals and that upon the receipt of the new chemicals the lab would be moved to a new location where additional quantities of Controlled Substances would be manufactured. Nelson further advised the officers that he worked in the lab for William Douglas Johnson, to whom he had been introduced by James Guy Parks, Nelson's roommate.
2. On 2 June 1978, Special Agent Richard B. Broughton contacted Mr. Gene Huller, an official of Fisher Scientific Chemical Company in Raleigh, North Carolina. Mr. Huller advised Agent Broughton that his firm, on 27 July 1977, 2 February 1978, and 1 March 1978, had received orders from J. G. Parks, doing business as Southeastern Tank and Steel Service, Chapel Hill, North Carolina, for chemicals and supplies including methylamine, ethyl ether anhydrous, formic acid, sodium hydroxide, funnels, tube adapters, graduated cylinders, flasks, stirring rods, cork rings and rubber stoppers. Similarly, Mr. Huller also advised the officers that Mr. William Johnson, also doing business as Southeastern Tank and Steel Service, contacted Fisher Scientific Company on 27 January 1978 to order a flask, filter paper, rubber tubing, beakers, funnels, and connectors. All items ordered were either picked up by or delivered to Parks, Johnson or their designated recipients.
3. Similarly, Ms. Jose Roth, Office Manager of Pflatz and Bauer Chemical Company, Stamford, Connecticut, contacted Special Agent Timothy L. Morgan, Greensboro, North Carolina, on 23 May 1978, and informed the officer that J. G. Parks, doing business as Southeastern Tank and Steel Service, presented orders for benzelmethylketone, ethylbutylketone, and isopropyl benzene, the latter order of which was to be picked up by Mr. Parks on 31 May 1978.
4. On 30 May 1978, Special Agent T. W. Sprankle of the Hartford, Connecticut District Office of the Drug Enforcement Agency, appeared before U.S. Chief District Judge T. Emmett Clarie with an affidavit requesting the installation of a radio-tracking device in the container containing a quantity of the phenyl 2 proponone (benzelmethylketone). The warrant was issued.
5. "On the following day, 5/31/78, Mr. Parks arrived at the Pfaltz And Bauer Chemical Company, at which time he paid cash, $3,837.50 for the above items and received them. Surveillance was then conducted on Parks and his vehicle, a 1977 Ford truck, North Carolina license BJ-6203, and the container containing the chemicals/radio-tracking device by surveilling DEA agents Sprankle, Joe Barett, Richard Keckler, Chris Bradley and other agents, [sic] Parks was observed driving from the Stamford, Connecticut area to the Raleigh/Chapel Hill, North Carolina area on this date by the above officers and others. During the drive from Stamford, Connecticut on numerous occasions, Parks was observed operating the vehicle in a very erratic manner. Parks frequently would go through a toll booth, paying, and immediately pull over to the side, watching other vehicles come through. Parks additionally was observed parking in rest areas and appearing to be watching other vehicles to see if they stopped along with him."
6. "On the following date of 6/1/78 Parks was observed going to the residence of Rodney Eugene Hendricks, Route 2, Box 387A, Graham, North Carolina, [ sic ] Parks was observed remaining in the Graham/Pittsboro, North Carolina area until 6/2/68 [sic] at which time he was observed by surveilling agents operating his above described vehicle; proceeding to the Boone/Todd, North Carolina area. Agents C. D. Holbrook, Chris Bradley as well as other agents monitored the signal from the container of Phenyl 2 Proponone and determined Parks maintained possession of the container in the vehicle he operated at all times."
7. "On Tuesday, 6/6/78 surveilling agents and radio monitors observed Parks return to Route 2, Box 387A, Graham, North Carolina. During the entire time, Agents observed Parks to operate his vehicle in a very erratic manner. He made numerous u-turns and would frequently stop on the side of the road apparently watching for vehicles following him."
8. "On Wednesday, 6/7/78, Parks was again observed at Route 2, Box 387A, Graham, North Carolina. However, during the early AM hours of Friday, 6/9/78 surveilling agents, I. L. Allcox and Robert H. Clark determined that Parks' vehicle was no longer at the residence yet monitoring of the radio transmitter reflected the container had been removed from the vehicle and apparently placed in the residence or in adjacent out building on the property."
9. "On the evening of Friday, 6/10/78 Special Agents Clark and Allcox observed from a distance, through a side window of the house, an individual putting on a white smock, typical of that used by chemist [sic]. The Agents observed the individual putting on the smock on approximately five (5) different occasions as he walked from the front of the residence to the rear of the residence."
10. "On the evening of Saturday, 6/11/78, Special Agents Timothy L. Morgan and Robert H. Clark observed a vehicle (white panel GMC truck) known to be utilized by John Nelson, departing from the above residence. Additionally, surveilling Agent Larry Rawlings observed the operator of the above vehicle and it appeared to be John Nelson."
11. "On 6/2/78 Special Agent Richard B. Broughton advised DEA Forensic Chemist Ron Pyles and North Carolina State Bureau of Investigation Forensic Chemist Dr. Charles McDonald of the above lists of chemicals and equipment purchased by James G. Parks and others doing business as Southeastern Tank And Steel Service. Both Chemists stated they knew of no way these chemicals and equipment could be used in cleaning or painting steel tanks. Both Chemists further stated that with the above chemicals the only product known to them which could be manufactured was the Schedule II Controlled Substance, Amphetamine."
12. "During the past seven (7) years, while employed as a Special Agent with the Drug Enforcement Administration, I have been directly involved in no less than ten clandestine laboratory investigations leading to the arrest and convictions of at least 40 defendants. It has been my experience through ...