UNITED STATES OF AMERICA, PETITIONER V. LEROY CARLTON KNOTTS No. 81-1802 In the Supreme Court of the United States October Term, 1981 The Solicitor General, on behalf of the United States, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Eighth Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Eighth Circuit TABLE OF CONTENTS Opinions below Jurisdiction Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D OPINIONS BELOW The opinion of the court of appeals (App. A, infra, 1a-11a) is reported at 662 F.2d 515. The opinion of the district court (App. B, infra, 12a-17a) is not reported. JURISDICTION The judgment of the court of appeals (App. C, infra, 18a) was entered on October 30, 1981. A petition for rehearing with a suggestion for rehearing en banc was denied on December 29, 1981 (App. D, infra, 19a). On February 17, 1982, Justice Blackmum extended the time within to file a petition for a writ of certiorari to and including March 29, 1982. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the warrantless monitoring of a beeper to aid in locating a drum containing chemicals used to manufacture illegal drugs violates the Fourth Amendment. /*/ STATEMENT In an indictment filed in the United States District Court for the District of Minnesota, respondent was charged, together with Darryl Petschen and Tristan Armstrong, with conspiracy to manufacture controlled substances, including but not limited to methamphetamine, in violation of 21 U.S.C. 846. Following a jury trial, respondent was convicted and was sentenced to five years' imprisonment. /1/ 1. The evidence showed that on June 14, 1979, Agent Timothy Shanley, a narcotics investigator for the Minnesota Bureau of Criminal Apprehension, received information from the 3M Company, a chemical company in St. Paul, Minnesota, that co-defendant Armstrong, a former 3M employee, had been stealing phenylacetone and other chemicals that are essential precursors (starter materials) in the manufacture of amphetamine and methamphetamine (H. 2-3; Tr. 46-47, 196, 210). /2/ A search of Armstrong's laboratory at 3M uncovered documents linking him to a residence on Leone Street in St. Paul, where, through visual surveillance, agents saw co-defendant Petschen and others moving laboratory equipment and furniture into a truck (H. 3; Tr. 50-51, 57-58, 60-61). Thereafter, Agent Shanley examined the vacated premises with the landlord's permission (H. 4; Tr. 63-64). He found tubing, glassware and miscellaneous laboratory equipment amid several piles of garbage (Tr. 64). He also found a white powder which, upon analysis, was found to contain a chemical byproduct of amphetamine synthesis (H. 4; Tr. 65-66, 262). Subsequent investigation revealed that Armstrong had been placing numerous orders for chemicals with the Hawkins Chemical Company in Minneapolis (H. 5; Tr. 73-74, 81-85, 89). When Agent Shanley was informed that on February 28, 1980, Armstrong was scheduled to pick up one such order from Hawkins, including a quantity of chloroform, Shanley obtained permission from the company to place the chloroform inside a five-gallon drum containing a beeper before delivery to Armstrong (H. 5-6; Tr. 100-101). /3/ On the scheduled date, investigating agents observed Armstrong pick up the order and drive to co-defendant Petschen's residence in St. Paul, where the packages of chemicals were transferred to the back seat of Petschen's vehicle (H. 5-6, 11; Tr. 73-74, 102). The agents followed Petschen as he drove his automobile into Wisconsin (H. 6; Tr. 104, 106-107). At times the agents lost sight of Petschen's vehicle and relied upon the beeper signal emitted from the drum to keep track of Petschen's whereabouts (H. 7; Tr. 103-104). During most of the surveillance Petschen drove at a steady pace of 55 miles per hour and did not appear to be trying to avoid detection (Tr. 104). At about 3 30 p.m., however, Petschen began making evasive maneuvers and the agents terminated their visual surveillance (Tr. 105). Approximately one hour later, the agents located the beeper signal in the vicinity of a cabin occupied by respondent Knotts near Shell Lake, Wisconsin (H. 7; Tr. 105, 108-109). The agents then established intermittent visual surveillance of respondent's property until the following day, when they saw respondent and Petschen leave the area (Tr. 107-108). On March 3, 1980, federal and state agents obtained a warrant to search respondent's cabin and surrounding property. In the course of the search, they discovered a fully operable clandestine drug laboratory behind wall paneling in the cabin (H. 8-9; tr. 143). In the laboratory area the agents found formulas for amphetamine and methamphetamine, over $10,000 worth of laboratory equipment, and chemicals in quantities sufficient to produce 14 pounds of pure amphetamine (H. 9-10; Tr. 160, 162-163, 272-274). Hidden under a barrel outside the cabin the agents located the five-gallon drum of chloroform in which they had placed the beeper (Tr. 173-174). 2. Prior to trial, respondent moved to suppress the evidence found in the search of his cabin. The district court denied the motion (App. B, infra, 12a-17a). The court first concluded that the installation of the beeper with the consent of the chemical company "did not invade anyone's expectation of privacy and thus could not have violated the Fourth Amendment" (id. at 15a). The court then held that the subsequent monitoring of the beeper to determine the destination of the drum of chloroform did not violate respondent's Fourth Amendment rights because respondent could claim no legitimate expectation of privacy in the arrival on his property of a can of chemicals transported over public thoroughfares by another party (id. at 15a-16a). In addition, the court concluded that the monitoring of the beeper's signals for a brief period after the drum was deposited on respondent's property was not a "search" within the meaning of the Fourth Amendment (id. at 16a-17a). Accordingly, the court ruled that the subsequent warrant-authorized search of respondent's cabin based on information gained by use of the beeper was valid (id. at 17a). 3. A divided panel of the court of appeals reversed respondent's conviction (App. A, infra, 1a-11a). /4/ Noting that the other circuits that have addressed the question have taken conflicting positions, the majority held that law enforcement officers must obtain a warrant before using a beeper to determine the location of noncontraband materials that have been placed in a private area or withdrawn from public view (id. at 4a-7a). /5/ The majority acknowledged that the courts have upheld the warrantless use of beepers as an aid of visual surveillance in tracking the route taken by an automobile over public roads, but it concluded that in this case the item to which the beeper was attached passed "into the private sphere protected by the Fourth Amendment" when the "beeper's signal was lost and found again only after the beeper-laden drum was on private property out of public view" (id. at 6a-7a). Judge Henley dissented (App. A, infra, 8a-11a). He first expressed some doubt as to whether the monitoring of a beeper is a "search" within the meaning of the Fourth Amendment (id. at 8a). Even if the use of a beeper is a search, Judge Henley concluded that there can be no greater expectation of privacy in the location of chemicals intended for use in the manufacture of illegal drugs than in the location of known contraband, which an individual has no legal right to possess (id. at 8a-11a). In Judge Henley's view, the agents had probable cause to believe that the chloroform was intended for illegal use at the moment they saw co-defendant Armstrong load the chloroform into his automobile, and they thus could have seized the chloroform for immediate forfeiture under 21 U.S.C. 881(a) (2) (App. A, infra, 11a n.1). In these circumstances, Judge Henley concluded that "(respondent) had no legitimate expectation of privacy in the location of the chloroform that was violated by (the warrantless) monitoring of the beeper" (id. at 11a.) REASONS FOR GRANTING THE PETITION This case presents an important and recurring question of Fourth Amendment law. The holding of the court of appeals that a warrant is required before law enforcement agents may monitor radio signals from a beeper to locate an object that has come to rest on private property is, as the court below conceded (App, A, infra, 5a-6a), in direct conflict with decisions of the United States Courts of Appeals for the Ninth and Tenth Circuits. United States v. Dubrofsky, 581 F.2d 208 (9th Cir. 1978); United States v. Bernard, 625 F.2d 854 (9th Cir. 1980); United States v. Brock, No. 80-1736 (9th Cir. Feb. 18, 1982); United States v. Clayborne, 584 F.2d 346 (10th Cir. 1978). Moreover, the decision in this case also apprears to conflict with the decisions of numerous courts of appeals that have upheld the warrantless monitoring of beepers to track the movements of an automobile over public roads. The conflicting decisions of the lower courts in this area have engendered considerable uncertainty concerning the Fourth Amendment implications of using a beeper as an aid in surveillance of suspected criminal activities. This Court should grant review to resolve these conflicts and to decide the important question presented here. 1. Cases involving the permissibility of beeper use ordinarily raise two distinct issues, one relating to the installation of the beeper in a package or conveyance, the other relating to the monitoring of signals transmitted by the beeper. In this case, both courts below concluded (App. A, infra, 4a n.2; App. B, infra, 15a) that the installation of the beeper inside the drum of chloroform with the consent of the chemical company did not violate the Fourth Amendment. This decision is in accord with the decisions of other courts in similar circumstances. /6/The decision below, however, squarely conflicts with decisions of the Ninth and Tenth Circuits upholding the warrantless monitoring of beepers after the packages to which the beepers were attached had been removed from public view. In United States v. Dubrofsky, supra, the Ninth Circuit upheld the warrantless monitoring of a beeper inside a package after it had been taken into a residencd, concluding that a device that continually broadcasts "here I am" constitutes only a "slight" instrusion and "is not an impermissible search." 581 F.2d at 211. The court explained: Transmitting the package's location is merely an aid to what can be accomplished by visual surveillance. Permissible techniques of surveillance include more than the five senses of officers and their unaided physical abilities. Binoculars, dogs that track and sniff out contraband, searchlights, fluorescent powders, automobiles and airplanes, burglar alarms, radar devices, and bait money contribute to surveillance without violation of the Fourth Amendment in the usual case. On the other hand, wiretaps, breaking and entering, and many other searches and seizures fall on the other side of the line. The issue before us is whether the mere presence of the beeper, it having been attached without violating the Fourth Amendment, sufficiently resembles a wiretap to require the "antecedent justification" that a warrant would provide. We hold that it does not. Ibid. (footnote omitted). /7/ Subsequently, in United States v. Bernard, supra, and United States v. Brock, supra, the Ninth Circuit reaffirmed its holding in Dubrofsky and upheld the warrantless monitoring of a beeper attached to a drum of chemicals located inside a residence. Similarly, in United States v. Clayborne, supra, the Tenth Circuit held that the warrantless monitoring of a beeper that was transmitting signals from inside commercial premises was permissible under the Fourth Amendment. Like the Ninth Circuit in Dubrofsky, the court viewed the beeper "as a substitute for persistent extensive visual effort," and it distinguished the slight intrusion occasioned by use of a beeper from the much greater intrusion involved in the use of a device, as in Katz v. United States, 389 U.S. 347 (1967), to intercept the contents of telephone conversations. 584 F.2d at 351. In contrast to the Ninth and Tenth Circuits, the First and Sixth Circuits have concluded that the warrantless use of a beeper to determine the continued presence of chemicals inside a residence violates the Fourth Amendment. In United States v. Moore, 562 F.2d 106 (1st Cir. 1977), cert. denied, 435 U.S. 926 (1978), the court acknowledged that "the limited data transmitted by a beeper (is) far less revealing than the conversation recorded in Katz" and "the level of intrusion * * * less severe." 562 F.2d at 113. The court nevertheless concluded that when the defendants took inside their house a box of chemicals which, unbeknownst to them, contained a beeper, "they had every right to expect that their activities inside the house which they sought to preserve as private would be free from warrantless intrusion by the Government." Ibid. /8/ Relying on Moore, the Sixth Circuit in United States v. Bailey, 628 F.2d 938, 944 (1980), concluded that "(b)eeper surveillance of non-contraband personal property in private areas trenches upon legitimate expectations of privacy and constitutes a search or seizure within the meaning of the fourth amendment." Although the agents in Bailey obtained a warrant authorizing the use of the beeper, the court held that the warrant was invalid because it contained no provision limiting the duration of the surveillance. Id. at 945-946. Accordingly, it suppressed evidence obtained as a result of the beeper surveillance. In this case, the court of appeals expressly rejected the approach of the Ninth and Tenth Circuits and relied instead on the decisions of the First and Sixth Circuits in Moore and Bailey (App. A, infra, 5a-6a). The clear conflict among the circuits on this important question warrants this Court's review. See Michael v. United States, cert. denied, No. 81-112 (Oct. 19, 1981) (White, J., dissenting); Miroyan v. United States, 439 U.S. 1338, 1342-1343 (1978) (Rehnquist, Circuit Justice). 2. The decision below goes even further than the decisions in Moore and Bailey, which struck down the warrantless use of a beeper over an extended period to ascertain the continued presence of chemicals inside private premises. Here, the majority held that the beeper could not be employed to determine the arrival on respondent's property of a package of chemicals used to manufacture illegal drugs. This decision is inconsistent with the decisions of those courts of appeals that have concluded that the warrantless monitoring of a beeper to follow the public movements of a vehicle does not violate the Fourth Amendment. Some courts have held that the use of a beeper to trace the movements of a conveyance does not implicate Fourth Amendment concerns at all, because an individual has no legitimate expectation of privacy in his public travels. See, e.g., United States v. Bruneau, 594 F.2d 1190, 1197 (8th Cir. 1979) (airplane); United States v. Miroyan, 577 F.2d 489, 492 (9th Cir.), cert. denied, 439 U.S. 896 (1978) (airplane); United States v. Hufford, 539 F.2d 32, 33-35 (9th Cir.), cert. denied, 429 U.S. 1002 (1976) (automobile). See also United States v. Michael, 645 F.2d 252, 259-260 (5th Cir. 1981) (en banc) (C. Clark, J., concurring), cert. denied, No. 81-112 (Oct. 19, 1981) (automobile). Other courts have held that while the Fourth Amendment applies in such situations, the warrantless use of a beeper may be upheld on the basis of either probable cause, see United States v. Moore, supra, 562 F.2d at 111-113 (automobile), or reasonable suspicion. See United States v. Michael, supra, 645 F.2d at 258 (plurality opinion). The majority below attempted to avoid the import of these decisions by stating that "(t)his is not a case of a beeper being attached to an automobile, so the ultimate issue is not whether there can be an expectation of privacy in the route taken by an auto over public roads" (App. A, infra, 4a; emphasis added). /9/ However, as the First Circuit stated in United States v. Moore, supra, 562 F.2d at 111 n.2: For * * * fourth amendment purposes, where the issue is whether there was an invasion of a privacy interest, we think it makes better sense to classify the beepers functionally, i.e. by whether or not they were used to tail a vehicle, or else for some different purpose, rather than by whether the beepers were in a package or affixed to the vehicle's underbody. To the extent the packaged beeper was used to follow the vehicle, we think it presents the same fourth amendment problems as the attached beepers. See also United States v. Sheikh, 654 F.2d 1057, 1071 (5th Cir. 1981), cert. denied, No. 81-5828 (Mar. 1, 1982); United States v. Bailey, supra, 628 F.2d at 943 n.8. Thus, even assuming arguendo that the monitoring of a beeper to ascertain the continued presence of a beeper on private premises requires a warrant, that would provide no basis for requiring a warrant here, because the agents simply used the beeper to determine the ultimate destination of co-defendant Petschen's vehicle, in which the drum of chloroform was transported over public roads. The beeper, accordingly, gave forth no information that could not have been obtained readily had it been attached directly to Petschen's vehicle or had the agents decided instead to rely solely upon visual surveillance. 3. The decision of the court of appeals in this case is based upon an erroneous view of the Fourth Amendment. The majority concluded that respondent had a "reasonable, legitimate expectation of privacy" (App. A, infra, 7a) in the drum of chloroform because it was located "beneath a wooden barrel in the yard of a remote rustic cabin" that respondent occupied (id. at 6a). But the majority reached this conclusion without considering to what extent, if any, the use of the beeper actually intruded upon respondent's privacy interests. As this Court made clear in Katz v. United States, supra, 389 U.S. at 351, "(w)hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." More recently, in Smith v. Maryland, 442 U.S. 735 (1979), the Court reaffirmed that not all events occurring within a home or on an individual's property are protected by the Fourth Amendment simply by virtue of the fact that they happen in a "private area," as the majority below thought (App. A, infra, 5a). In Smith, the Court held that the use of a pen register to record the numbers dialed on the defendant's telephone did not constitute a "search" within the meaning of the Fourth Amendment. Noting that a pen register acquires an extremely limited amount of information (442 U.S. at 741), the Court concluded that the use of the pen register did not violate Smith's legitimate expectations of privacy because "(w)hen he used his phone, (Smith) voluntarily conveyed numerical information to the telephone company," and he "assumed the risk that the company would reveal to the police the numbers he dialed." Id. at 744. The mere fact that Smith had dialed the telephone numbers recorded by the pen register "on his home phone * * * could make no conceivable difference" in the constitutional analysis. Id. at 743. Like the pen register in Smith, a beeper bears no significant resemblance to the listening device in Katz, for it does not intercept private communications but merely conveys a very limited amount of information. Moreover, here as in Smith, the information acquired by the beeper did not violate anyone's legitimate expectations of privacy. "A car has little capacity for escaping public scrutiny. It travels public thoroughfares where both its occupants and its contents are in plain view." Cardwell v. Lewis, 417 U.S. 583, 590 (1974) (plurality opinion). See United States v. Chadwick, 433 U.S. 1, 12 (1977); South Dakota v. Opperman, 428 U.S. 364, 368 (1976). The movements of co-defendant Petschen's automobile until it turned onto respondent's property "were at all times in full view of the public * * * . The electronic beeper was merely a more reliable means of ascertaining where (Petschen) was going as he drove along the public road." United States v. Hufford, supra, 539 F.2d at 34-35. Thus, as the district court concluded (App. B, infra, 15a-16a; emphasis in original), respondent "could not reasonably have expected to keep private the fact that the can had arrived at his residence." Accordingly, the use of the beeper in the circumstances of this case did not constitute a search within the meaning of the Fourth Amendment. See United States v. Brock, supra, slip op. 694; United States v. Michael, supra, 645 F.2d at 259-260 (C. Clark, J., concurring). Even if the Fourth Amendment is applicable to the beeper surveillance involved in this case, the majority below erred in imposing a warrant requirement. Because of the strictly limited nature of the information conveyed by a beeper, which is capable only of a very narrow intrusion on any private interests, it is entirely reasonable under the Fourth Amendment to permit law enforcement officers to conduct beeper surveillance on the basis of suspicion falling short of probably cause. Cf. Terry v. Ohio, 392 U.S. 1 (1968). In United States v. Michael, supra, a plurality of the en banc Fifth Circuit concluded that reasonable suspicion sufficed to justify the monitoring of a beeper. In reaching this result, the plurality consider(ed) the governmental interest in eliminating illegal drug manufacture to be a persuasive reason to permit this minimally intrusive practice. An "intermediate response" based on something less than probable cause, is a proper investigatory tool to aid DEA agents in discovering and eliminating clandestine laboratory operations. In balancing the public concerns served by the use of the beeper, to discover Michael's drug manufacturing apparatus against the slight infringement of Michael's expectation of privacy, we find the beeper's use to be eminently reasonable. 645 F.2d at 259 (footnotes omitted). Of course, if reasonable suspicion is sufficient to justify use of a beeper, it follows that a warrant (which may only be issued on probable cause) is not required under the Fourth Amendment. And even if the Fourth Amendment requires more than reasonable suspicion, the use of a beeper should be permissible based on probably cause, without the need for a warrant. The contrary decision below, requiring a warrant simply ignores the lack of substantial privacy concerns implicated by beeper surveillance and needlessly subverts the legitimate needs of law enforcement authorities to employ enhancement techniques in apprehending criminals. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. REX E. LEE Solicitor General D. LOWELL JENSEN Assitant Attorney General ELLIOTT SCHULDER Assistant to the Solicitor General ANN T. WALLACE Attorney MARCH 1982 /*/ In addition to the parties listed in the caption, co-defendant Darryl Petschen was a party to the proceedings below, but is not a respondent herein. /1/ Co-defendant Armstrong pleaded guilty and was sentenced to three years' imprisonment, all but six months of which was suspended in favor of probation on the condition that he serve those six months on work release. Co-defendant Petschen was tried jointly with respondent. He was convicted and sentenced to five years' imprisonment. /2/ "H." refers to the transcript of the preliminary hearing, which the parties stipulated could be considered by the district court in ruling on the suppression motion (see May 28, 1980 Tr. 6-7). "Tr." refers to the trial transcript. /3/ A beeper, or electronic tracking device, transmits a radio signal that can be monitored by a radio receiver. The location of the beeper is determined by the strength of the signal and the direction from which it is received. Electronic tracking devices used by law enforcement authorities are of two types. The first type, a beacon transmitter, emits a constant signal of periodic short bursts of radio frequency power and is used on automobiles and packages of goods. The second type of device, a transponder, emits a signal only upon receipt of another designated radio signal. This latter device is used on airplanes and ships, where a beacon transmitter would interfere with navigation equipment. /4/ The court of appeals unanimously affirmed the conviction of co-defendant Petschen, whose suppression motion had also been denied by the district court. The court of appeals concluded that Petschen had no reasonable expectation of privacy in respondent's cabin (App. A, infra, 7a). Petschen filed a petition for certiorari (No. 81-6089) on January 1, 1982, seeking review of this ruling. /5/ Citing the maxim caveat emptor, the court of appeals agreed with the district court that the initial attachment of the beeper with the consent of the company did not offend the Fourth Amendment, even though the company intended to sell the drum to an unsuspecting buyer (App. A, infra, 4a n.2). /6/ See United States v. Bernard, supra, 625 F.2d at 860; United States v. Lewis, 621 F.2d 1382, 1388 (5th Cir. 1980), cert. denied, 450 U.S. 935 (1981); United States v. Bruneau, 594 F.2d 1190, 1194 (8th Cir.), cert. denied, 444 U.S. 847 (1979); United States v. Miroyan, 577 F.2d 489, 493 (9th Cir.), cert. denied, 439 U.S. 896 (1978); United States v. Cheshire, 569 F.2d 887, 889 (5th Cir.), cert. denied, 437 U.S. 907 (1978); United States v. Curtis, 562 F.2d 1153, 1156 (9th Cir. 1977), cert. denied, 439 U.S. 910 (1978); United States v. Abel, 548 F.2d 591, 592 (5th Cir.), cert. denied, 431 U.S. 956 (1977); United States v. Hufford, 539 F.2d 32, 34 (9th Cir.), cert. denied, 429 U.S. 1002 (1976). In analogous contexts courts have also held that no Fourth Amendment rights are infringed by the warrantless attachment of a beeper on property by an invitee (United States v. Arredondo-Morales, 624 F.2d 681, 684-685 (5th Cir. 1980); United States v. Conroy, 589 F.2d 1258, 1264 (5th Cir. 1979)), or by the installation of a beeper on the exterior of a car or airplane parked in a location accessible to the public. United States v. Michael, 645 F.2d 252, 258 (5th Cir. 1981) (en banc), cert. denied, No. 81-112 (Oct. 19, 1981); United States v. Shovea, 580 F.2d 1382, 1388 (10th Cir. 1978), cert. denied, 440 U.S. 908 (1979); United States v. Moore, 562 F.2d 106, 111-112 (1st Cir. 1977), cert. denied, 435 U.S. 926 (1978); United States v. Pretzinger, 542 F.2d 517, 520 (9th Cir. 1976). Because the installation issue was resolved in the government's favor below, we do not address it in this petition. /7/ Indeed, the court in Dubrofsky concluded that the monitoring of a beeper that transmits not only its location inside a residence but also the fact that the package in which it is installed has been opened, an event signaled by a change in the beeper's tone, is likewise not sufficiently intrusive to require a warrant. 581 F.2d at 212. Accord, United States v. Sheikh, 654 F.2d 1057, 1071 (5th Cir. 1981), cert. denied, No. 81-5828 (Mar. 1, 1982). While Dubrofsky involved a package containing heroin, the Ninth Circuit has recently made clear that this fact was not significant to the court's analysis of the beeper monitoring issue. See United States v. Brock, supra, slip op. 696 n.9; id. at 701 (Adams, J., concurring). /8/ Moore actually involved two different beepers, one used to track the movements of an automobile, the other to monitor the continued presence of a package of chemicals inside the defendants' house. The court reached different results with respect to the two beepers, concluding that a warrant was required to monitor the beeper in the house, while probable cause without a warrant was sufficient to monitor the beeper in the car. As we argue later on, the holding of the majority below appears to be inconsistent with the latter holding in Moore. See pages 12-13, infra. /9/ The majority acknowledged that the courts have upheld the warrantless monitoring of beepers placed on automobiles (App. A, infra, 4a-5a, citing United States v. Michael, supra, United States v. Moore, supra, and United States v. Hufford, supra). Appendix Omitted