Opposition Brief — Barrios-Moriera v. United States

In the Supreme Court of the Gnit

OCTOBER TERM, 1989

JiMMY BARRIOS-MORIERA, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

KENNETH W. STARR

Solicitor General

EDWARD S.G. DENNIS, JR.

Assistant Attorney General

ROBERT J. ERICKSON

Altorney

Department of Justice

Washingion, D.C. 20530

(202) 633-2217

ort

QUESTION PRESENTED

Whether the narcotics agent had probable cause to believe

that, on the facts of this case, a brick-shaped package

wrapped in duct tape contained narcotics.

(I)

TABLE OF CONTENTS

Page

IN i or a ei a se Sb wads 4-onbe en ko 1

ie oe eek bakendeetabukareawe l

ee waka eekbb owe aas l

ES ee Seen eee ee ee eT eer ee 4

ee ales Wok wb ewe ees ad 7

TABLE OF AUTHORITIES

Cases:

Arizona v. Hicks, 480 U.S. 321 (1987) ......... 4

Arkansas v. Sanders, 442 U.S. 753 (1979) ...... 5

Illinois v. Gates, 462 U.S. 213 (1983) .......... 4,7

Robbins v. California, 453 U.S. 420 (1981) ..... 6

Texas v. Brown, 460 U.S. 730 (1983) .......... a 3:9

United States v. Amparo, No. 87 CR. 753 (MJL),

I OS OR I i cence cc aceecs 6

United States v. Jacobsen, 466 U.S. 109 (1984).. 4

United States v. Klein, 860 F.2d 1489 (9th Cir.

NS SEE SE ay oe ek Pee ann rae 6

United States v. Liberto, 660 F. Supp. 889 (D.D.C.

1987), aff'd, 838 F.2d 571 (D.C. Cir. 1988) .. 6

United States v. Puliese, 671 F. Supp. 1353 (S.D.

ea ns a weed oe Veen 6

United States v. Tormes-Ortiz, 710 F. Supp. 409

ass o's sca walp aa ae ween 6

United States v. Watson, 423 U.S. 411 (1976) .. 4

Constitution and statutes:

ee cee eesecs

en ewe e hus ecb abn 2

21 U.S.C. 841(b)(1)(B) (1982 & Supp. V 1987) .. 2

(111)

In the Supreme Court of the United States

OCTOBER TERM, 1989

No. 89-34

JIMMY BARRIOS-MORIERA, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. A3-A16)

is reported at 872 F.2d 12.

JURISDICTION

The judgment of the court of appeals was entered on

March 30, 1989. A petition for rehearing was denied on May

9, 1989. Pet. App. Al-A2. The petition for a writ of cer-

tiorari was filed on July 7, 1989. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District Court

for the Eastern District of New York, petitioner was con-

(1)

2

victed of possessing more than 500 grams of cocaine with

the intent to distribute it, in violation of 21 U.S.C. 841(a)(1)

and (b)(1)(B) (1982 & Supp. V 1987). He was sentenced to

six years’ imprisonment, to be followed by a five-year term

of supervised release. The court of appeals affirmed.

1. On the afternoon of July 22, 1987, three law enforce-

ment officers— Drug Enforcement Administration Agent

William Dolinsky and New York City Police Department

Detectives Thomas Healy and Roy Pena — were conducting

surveillance of a parked Audi automobile in the College

Point area of Queens, New York, in connection with a re-

cent drug-related homicide. The officers saw a blue Cadillac,

driven by petitioner, proceeding down the street where the

Audi was parked. The Cadillac “ ‘slowed down by the Audi,

almost came to a stop and it appeared * * * that [petitioner]

* * * looked at the Audi for several seconds.’ ” Pet. App.

A4-AS.

Agent Dolinsky radioed Detectives Healy and Pena, he

told the detectives what he had seen, and he said that he

would follow the Cadillac. Agent Dolinsky then followed

the Cadillac for approximately five blocks until it parked

across the street from an apartment complex. Petitioner then

got out of the car, took a large shopping bag from the trunk,

and walked toward one of the apartment buildings. Agent

Dolinsky followed petitioner on foot into the apartment

building to “see where he was going with the bag.” Pet. App.

A5. When he entered the apartment building, Agent Dolin-

sky saw petitioner halfway up a flight of stairs in a com-

mon hallway. Dolinsky identified himself as a law enforce-

ment officer and asked to speak with petitioner. Ignoring

Dolinsky’s request, petitioner continued up the stairs until

he reached his apartment. While petitioner was fumbling

with his keys, he placed the shopping bag on the floor beside

him. Jd. at AS-A6.

3

When Agent Dolinsky reached the top of the stairs and

was a foot or two from petitioner, he glanced down into

the shopping bag and saw a rectangular object approximate-

ly eight inches long, four or five inches wide, and four in-

ches deep, that was wrapped in duct tape. Pet. App. A6.

Based on his four years’ experience as a DEA agent, dur-

ing which time he had seized hundreds of kilograms of co-

caine while working with the New York City Drug Enforce-

ment Task Force, Agent Dolinsky concluded that the

package contained cocaine. In his subsequent testimony,

he explained that “ ‘when they are packaged in a kilo form,

they are usually wrapped in a masking tape, duct tape[, or]

contact paper tape.’ ” Jbid. The agent therefore was “ ‘fairly

confident’ ” that the package held cocaine. /bid. Agent

Dolinsky reached into the bag and retrieved the cocaine.

After a further investigation, Dolinsky placed petitioner

under arrest. Ibid.

2. Before trial, petitioner moved to suppress the cocaine

as the product of an unlawful search or seizure. The district

court denied the motion, Pet. App. A1l8, and the court of

appeals affirmed by a divided vote. Jd. at A3-A15. At the

’ outset, the court held that Agent Dolinsky’s entry into the

apartment building did not constitute a “search,” id. at

A7-A8, and that the agent’s subsequent conduct in ap-

proaching petitioner in the hallway did not constitute a

“seizure.” Id. at A8-A10. Then, relying on Texas v. Brown,

460 U.S. 730 (1983), the court ruled that Agent Dolinsky’s

seizure of the package was supported by probable cause to

believe that the package contained cocaine. As the court

explained, “[t]he circumstances preceding the officer’s

ultimate face-to-face encounter with [petitioner] and his

viewing of the duct tape wrapped package” provided a suf-

ficient basis from which an experienced narcotics officer

could conclude that the package contained narcotics. Pet.

App. Al3,. AIS.

4

Judge Pierce dissented. In his view, the facts known to

Agent Dolinsky did not support the conclusion that the

package was a kilogram of cocaine. Pet. App. A15-A16.

ARGUMENT

Petitioner renews his claim that the cocaine should have

been suppressed as the product of a Fourth Amendment

violation.

Petitioner’s claim is quite narrow. He does not argue that

Agent Dolinsky’s entry into the apartment building or his

retrieval of the package constituted an unlawful search, nor

does he maintain that by approaching petitioner Agent

Dolinsky effected an unlawful seizure. Instead, petitioner

contends that Agent Dolinsky’s seizure of the package was

unlawful because the agent did not have probable cause to

believe that the package contained cocaine. The courts below

correctly rejected that claini, and it does not warrant review

by this Court. ;

It is well settled that a law enforcement officer can seize

property in plain view if there is probable cause to believe

that the property is a fruit, an instrumentality, or evidence

of acrime. Arizona v. Hicks, 480 U.S. 321, 326-328 (1987);

United States v. Jacobsen, 466 U.S. 109, 121-122 & n.21

(1984) (collecting cases). See United States v. Watson, 423

U.S. 411 (1976) (the warrantless arrest of a person in a public

place is lawful if it is supported by probable cause). Prob-

able cause exists when, in light of the totality of the cir-

cumstances, there is a fair probability that a fruit, an in-

strumentality, or evidence of a crime will be found at a par-

ticular location. Jilinois v. Gates, 462 U.S. 213, 238, 243-244

n.13 (1983).

In some cases probable cause to seize a package can be

based on its distinctive configuration, because that con-

figuration can suggest to an experienced law enforcement

| officer that the package holds contraband. Texas v. Brown,

: 460 U.S. at 742-743 (plurality opinion). For instance, in

Texas v. Brown this Court upheld the warrantless seizure

of opaque balloons whose ends were tied, on the ground

| that the investigating officer reasonably believed that

| balloons were a commonly used means of packaging heroin

| and that the balloons in that case were being so used. As

| the plurality explained:

[Officer] Maples testified that he was aware, both from

his participation in previous narcotics arrests and from

discussions with other officers, that balloons tied in the

manner of the one possessed by Brown were frequent-

ly used to carry narcotics. This testimony was cor-

roborated by that of a police department chemist who

noted that it was “common” for balloons to be used

in packaging narcotics. In addition, [Officer] Maples

was able to observe the contents of the glove compart-

ment of Brown’s car, which revealed further sugges-

tions that Brown was engaged in activities that might

involve possession of illicit substances. The fact that

[Officer] Maples could not see through the opaque

fabric of the balloon is all but irrelevant: the distinc-

tive character of the balloon itself spoke volumes as

to its contents — particularly to the trained eye of the

officer.

Id. at 742-743. See also id. at 746 (Powell, J., concurring

in the judgment) (“Officer Maples testified that he previously

had made an arrest in a case where narcotics were carried

in tied-off balloons similar to the one at issue here. Other

officers had told him of such cases. * * * [A] law enforce-

ment officer may rely on his training and experience to draw

inferences and make deductions * * *.”).!

' Cf. Arkansas v. Sanders, 442 U.S. 753, 764-765 n.13 (1979) (“Not

all containers and packages found by police during the course of a search

|

6

The court of appeals reasonably applied those principles

to the facts of this case. Narcotics agents frequently discover

cocaine in packages like the one seized from petitioner.? In

any event, contrary to petitioner’s assertion, the court did

not rule that any package wrapped in duct tape may auto-

matically be seized, regardless of the surrounding cir-

cumstances, on the ground that it can be deemed to con-

tain cocaine.* The court instead relied on the totality of the

will deserve the full protection of the Fourth Amendment” because “their

contents can be inferred from their outward appearance.”); Robbins

v. California, 453 U.S. 420, 427 (1981) (plurality opinion) (stating that

footnote 13 in Sanders describes “little more than another variation of

the ‘plain view’ exception, since, if the distinctive configuration of a

container proclaims its contents, the contents cannot fairly be said to

have been removed from the searching officer’s view”).

2 See, e.g., United States v. Klein, 860 F.2d 1489, 1492 (9th Cir. 1988)

(“A package, wrapped in grey duct tape, was discovered in [defendant’s]

vehicle. Unwrapped, the package revealed two one-kilogram ‘bricks’

of cocaine.”); United States v. Tormes-Ortiz, 710 F. Supp. 409, 410

(D.P.R. 1989) (search of defendant’s residence uncovered, inter alia,

“{t]wo solid, white ‘blocks’ wrapped with yellow tape”; packages held

cocaine); United States v. Amparo, No. 87 CR. 753 (MJL) (S.D.N.Y.

Mar. 3, 1988), slip op. 1 (Westlaw, 1988 WL 25186) (at time of de-

fendant’s arrest, “[nJext to [defendant] was an open plastic bag con-

taining two brick-shaped packages wrapped in tape of the kind usually

used to wrap cocaine”); United States v. Puliese, 671 F. Supp. 1353,

1357 (S.D. Fla. 1987) (search of home revealed “three packages of co-

caine, wrapped in tape, and brick-shaped”); United States v. Liberto,

660 F. Supp. 889, 891 (D.D.C. 1987) (“The officer unfolded one bag,

reached inside and removed a package in the shape and the consisten-

cy of a brick wrapped in gummed tape. Removal of the tape revealed

a white powder, later identified by test as cocaine.”), aff'd without opin-

ion, 838 F.2d 571 (D.C. Cir. 1988) (Table).

3 Accordingly, there is no basis to petitioner’s prediction (Pet. 10)

that the court of appeals’ decision will allow police officers to seize any

and all containers in which officers have found narcotics, such as an

ordinary paper bag. Not only did the court of appeals rely on facts

in addition to the packaging at issue here, but also that packaging itself,

7

circumstances in ruling that there was probable cause to seize

the cocaine. The circumstances included the size and shape

of the package, its distinctive wrapping, petitioner’s interest

in a vehicle under observation in a narcotics-related investiga-

tion, petitioner’s attempt to avoid speaking with an identified

law enforcement officer, and petitioner’s apparent nervous-

ness when the agent approached him, all seen through the

eyes of an experienced narcotics agent.* The court of ap-

peal’s probable cause ruling is consistent with this Court’s

decision in Texas v. Brown, supra, and does not warrant

further review.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

EDWARD S.G. DENNIS, JR.

Assistant Attorney General

ROBERT J. ERICKSON

Altorney

OCTOBER 1989

which conformed in size and shape to a brick of cocaine, is far more

likely to suggest the nature of its contents than is an ordinary paper bag.

* Contrary to petitioner’s assertion (Pet. 11), facts that are innocent

when considered separately may be indicative of criminal activity when

they are considered as a whole. “[P]robable cause requires only a prob-

ability or substantial chance of criminal activity, not an actual showing

of such activity. By hypothesis, therefore, innocent behavior frequently

will provide the basis for a showing of probable cause; to require other-

wise would be to sub silentio impose a drastically more rigorous defini-

tion of probable cause than the security of our citizens demands. * * *

In making a determination of probable cause the relevant inquiry is not

whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspi-

cion that attaches to particular types of non-criminal acts.” //linois v.

Gates, 462 U.S. at 243-244 n.13.