               United States Court of Appeals
                          For the Seventh Circuit
                          Chicago, Illinois 60604
                            January 10, 2003


                                  Before
                 Hon. FRANK H. EASTERBROOK, Circuit Judge
                 Hon. DANIEL A. MANION, Circuit Judge
                 Hon. MICHAEL S. KANNE, Circuit Judge


UNITED STATES OF AMERICA,
      Plaintiff-Appellee,
                                               Appeals from the
Nos. 00-3719, 00-3720, 00-3721,                United States District
00-3731, 00-3740, 00-3865, 00-4344             Court for the Eastern
00-4345 & 01-1683        v.                    District of Wisconsin.

CARL J. WARNEKE, DAVID KADLEC,                 No. 97-CR-98
LESLIE J. JENSEN, ROBERT A. K RUPPSTADT,       J.P. Stadtmueller,
RANDALL E. MILLER, RICHARD E. M ROCH,          Judge.
KEVIN P. O’NEILL, HARVEY E. POWERS, and
JAMES W. SCHNEIDER,
      Defendants-Appellants.




                                  Order

     The first paragraph on page 3 of the opinion of this court
issued on November 12, 2002, is amended as follows:

          The installation of the bugs did not violate the fourth
     amendment: the Constitution does not protect criminals
     against the risk that their associates will assist the
     police. See Hoffa v. United States, 385 U.S. 293, 300-03,
     310-12 (1966). Placement of these microphones was the
     result of good police work plus luck. The informant was
     Patricia Wolf, David's wife, who set up two lamps, one
     containing a microphone. Visiting the Wolf home, O'Neill
     said that he liked the lamps. Patricia then swapped the
Nos. 00-3719 et al.                                                    Page 2

      inactive lamp for a second bugged lamp. When O'Neill
      repeated his admiration of the lamps and asked if he could
      have one, Patricia graciously assented. O'Neill took one of
      the lamps (it did not matter which) and thus bugged his own
      home. But he didn't plug it in, and without electricity it
      was useless. So Patricia Wolf paid O'Neill's girlfriend a
      friendly visit and helped her improve the lighting in
      O'Neill's office. Agents drove by O'Neill's residence to
      find out if this worked; they learned from detecting a
      carrier signal that it had. Whether this step created a
      constitutional problem under the holding of United States
      v. Karo, 468 U.S. 705 (1984), is not a question we need
      decide, because no evidence based on the monitored signal
      was used against O'Neill at trial. What was used was the
      ensuing conversations, and their interception was
      authorized by a warrant issued in response to an affidavit
      that did not mention the monitored signal (or for that
      matter the fact that the bug-infested lamp was in place
      already). Because the agents did not intercept (i.e., did
      not either record or listen to) any communications until
      after the warrant had issued, installation of the device at
      O'Neill's home (and determination that it was working) did
      not violate statutory limits on eavesdropping; until
      interception begins, a bug is nothing but a "tracking
      device" under 18 U.S.C. §3117(b). See also 18 U.S.C.
      §2510(12).

     Defendants-appellants in Nos. 00-3731, 00-4344 and 00-4345
filed separate petitions for rehearing and rehearing en banc. No
judge in regular active service has requested a vote on the
petitions for rehearing en banc,* and all of the judges on the
panel have voted to deny rehearing. The petitions for rehearing
are therefore DENIED.




      * Judge Evans did not participate in the consideration of these en banc
petitions.
