United States v. Barry Dean Michael, A/K/A Mike Thompson, A/K/A Mike Johnson, Defendant

AINSWORTH, Circuit Judge:

This criminal prosecution requires us to determine the appropriate standard for the warrantless installation of an electronic tracking device (a “beeper”) on the exterior of a vehicle parked in a public place. The question remains one of first impression for this circuit because of our equally divided vote when considering the same issue in United States v. Holmes, 537 F.2d 227 (5th Cir. 1976) (en banc); see id. at 228 (Ainsworth, J., dissenting). As in Holmes, this case was placed en banc because of its exceptional importance.1

Defendant-appellee Barry Dean Michael…