The evidence fails to establish that McCally had abandoned the premises. The search and seizure of evidence was improper. For reasons substantially the same as set forth in the analysis of the search and seizures at unit 12, Ford Road Industrial Park, the evidence obtained during the search of the Ditman Street Apartment will be suppressed as to McCally, but will not be suppressed as to Hossbach.
(c) The Cherry Hill Locker search presents a more complex problem. First, the lead through which the locker was located was at least in part the bumper beeper surreptitiously placed on Hossbach's car. Defendants claim that the bumper beeper violated their fourth amendment rights, that use of such a device is illegal, and that the purported authority from the magistrate did not meet the probable cause requirements and findings necessary for a valid search and seizure warrant.
As to whether a bumper beeper requires a warrant, i. e., whether its use without prior judicial authorization violates the fourth amendment, most cases have held that no warrant is necessary. United States v. Hufford, 539 F.2d 32 (9th Cir. 1976); United States v. Clayborne, 584 F.2d 346, 351 (10th Cir. 1978); United States v. Bruneau, 594 F.2d 1190 (8th Cir. 1979); United States v. Pretzinger, 542 F.2d 517 (9th Cir. 1976). Contra, United States v. Holmes, 521 F.2d 859 (5th Cir. 1975).
Here, however, because a warrant was in fact obtained, it is not necessary to decide the issues of whether a warrant or authorization is required, and if so, whether exclusion of evidence is a proper sanction. The DEA investigators obtained judicial authorization from Magistrate Hall, after submitting to him an application, properly verified by affidavit, showing probable cause to believe that the car was being used by McCally for illegal drug operations. Defendants seem to take the position that because there is no express statute for a warrant to place a bumper beeper on a suspect's car and because Magistrate Hall did not expressly state in his order that he found probable cause to believe that the car was being used illegally, the authorizations must be held invalid. I do not agree. Magistrate Hall expressly found "probable cause" to issue the order of authorization. It is clear that probable cause did in fact exist. The use of the bumper beeper was properly authorized and its use was within the confines of the authorization.
As to the Cherry Hill locker storage space, there is clear and convincing evidence of abandonment or, at least, a surrender of any legitimate expectation of privacy which either defendant may ever have had as to the contents of the locker. This is so even though the entry was obtained prior to the termination of the lease.
Examination of the video tape prior to the agents' entry revealed that two men, tentatively identified as McCally and Hossbach, removed many items from the locker and placed them in a rental truck and drove away, leaving the door to the premises ajar. A separate padlock had been unlocked by McCally to gain entrance, and when the two defendants left the premises, the padlock was taken by McCally. Several days later, the key to the lock supplied by the landlord as part of the rental was returned by mail from Ohio. Moreover, the remaining items seized by the agents appeared to be broken or miscellaneous cartons of chemicals, pieces of equipment and trash, all strewn about in some disarray.
These circumstances clearly manifest an abandonment of any claim to the property by the defendants. I believe, however, that under the most recent cases of Salvucci and Rawlings, supra, the proper test is whether either defendant held a legitimate expectation of privacy as to the articles seized. Having left them at a public rental warehouse, with the door open and the contents in plain view to others who might happen by, and having later returned the key with no request to secure the remaining contents, defendants have manifested and it has been established by clear and convincing evidence before the court the lack of any legitimate expectation of privacy in the property seized.
The motion to suppress the evidence obtained from the Cherry Hill rental unit 394 will be denied.
IV. HOSSBACH'S GRANT OF IMMUNITY
Count 1 of the indictment charges these defendants with conspiracy to manufacture and distribute illegal drugs from about November 24, 1976 until April 17, 1980. During 1977, Hossbach testified under a formal statutory grant of immunity before a grand jury and at the trial in United States v. Bailey, Crim. No. 77-303, in the Eastern District of Pennsylvania. In addition, Hossbach provided Philadelphia DEA agents extensive interviews, under an informal grant of immunity, concerning his knowledge of nationwide illegal drug activities. These interviews included between 50 and 100 hours with agent Hershowitz of the Philadelphia DEA office.
The record is clear that there was at least one direct use of Hossbach's immunized testimony or immunized statements in obtaining evidence in this case. On or about April 16, 1980, the Government obtained a warrant from Magistrate Leomporra authorizing a search at 662 Swamp Road, Doylestown Township, Furlong, Pennsylvania. According to the affidavit in support of the search warrant, the Government believed that Hossbach resided at that address with his "paramour," Jann Alexander. Paragraph 44 of the affidavit makes explicit reference to Hossbach's testimony in the Bailey case:
I have personal knowledge that Raymond A. Hossbach keeps financial records relating to his manufacture and sale of Schedule II Non-Narcotic Drugs. I have personally examined a blue notebook previously kept by Hossbach in which he recorded his manufacture and sale of Schedule II drugs. In United States v. James Bailey, Criminal No. 77-303 (E.D.Pa.), Hossbach specifically identified the book described above and testified that he used it to record his Schedule II drug activities. Furthermore, S/A Ellis Hershowitz, DEA, the case agent in the James Bailey case, has informed me that Hossbach routinely keeps financial records pertaining to his manufacturing and sales activities of Schedule II drugs.
The government contends that the grant of immunity does not protect a witness from prosecution for crimes committed subsequent to the time when the immunized testimony was given. The government seeks support from United States v. Quatermain, 613 F.2d 38 (1980). The Quatermain Court, while recognizing that the privilege against self-incrimination ordinarily applies only to prohibit testimony concerning crimes committed prior to the grant of immunity, id. at 42, noted that there are exceptions where there is a real and substantial possibility that testimony will incriminate as to prospective acts. United States v. Freed, 401 U.S. 601, 91 S. Ct. 1112, 28 L. Ed. 2d 356 (1971). A "chronological formula" was expressly rejected in Marchetti v. United States, 390 U.S. 39, 54, 88 S. Ct. 697, 705, 19 L. Ed. 2d 889 (1968):
(Although) prospective acts will doubtless ordinarily involve only speculative and insubstantial risks of incrimination, this will scarcely always prove true.... it is not mere time to which the law must look, but the substantiality of the risks of incrimination.