Opposition — Canada v. United States

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MICHAEL RODAK, JR., Chi raked

ne a he Supreme Gouirt of the Hnited States:

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e _ MARGARET CANADA, PETITIONER |

nal le ! AP &

eo UNITED STATES OF AMERICA

ue r ON PETITION FOR A’ WRIT. OF CERTIORARI TO

» =) 5 THE UNITED STATES COURT OF APPEALS FOR

a or | THE NINTH CIRCUIT

_ BRIEF FOR THE UNITED STATES IN OPPOSITION

are >" Ropert H. Bork,

tay ate es oem ae Solicitor General,

RICHARD L. THORNBURGH,

Assistant Attorney General,

PR Gites A a Ba JEROME M. Feit,

pe Marc Puivip RICHMAN,

he eer | Attorneys, |

Fe ious oe. f : ) Department of Justice,

yt Washington, D.C. 20530

In the Supreme Court of the Hnited States

OCTOBER TERM, 1976

No. 75-1533

MARGARET CANADA, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 16a-

25a) is reported at 527 F. 2d 1374.

JURISDICTION

The judgment of the court of appeals was entered

on December 29, 1975, and a petition for rehearing with

suggestion of rehearing en banc (Pet. App. 26a) was

denied on February 25, 1976. On March 8, 1976,

Mr. Justice Rehnquist extended the time for filing a

petition for a writ of certiorari to April 23, 1976, and

the petition was filed on that date. The jurisdiction

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

QUESTIONS PRESENTED

1. Whether the search of a suitcase that had been

presented voluntarily to an airport security guard was

lawful.

(1)

2

2. Whether petitioner’s Fourth Amendment rights were

violated when the manager of a motel informed govern-

ment agents of the long-distance telephone numbers to

which calls had been placed from petitioner’s room.

3. Whether the search of an automobile and its

contents was lawful.

4. Whether the district court erred in refusing to permit

an unidentified person to post bail for petitioner.

5. Whether a juror’s acquaintance with a police

officer who was not called as a witness deprived petitioner

of a fair trial.

6. Whether the district court’s questioning of a witness

deprived petitioner of a fair trial.

7. Whether petitioner’s sentence was based on an im-

proper factor.

STATEMENT

After a jury trial in the United States District

Court for the Southern District of California, petitioner

was convicted of conspiracy to possess heroin and

cocaine and of possessing heroin and cocaine with intent

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

and 846. She was sentenced to concurrent terms of

five years’ imprisonment on each count, subject to the

immediate parole eligibility provisions of 18 U.S.C.

4208(aX(2), and to a !5-year term of special parole.

The court of appeals affirmed (Pet. App. 16a-25a).

The undisputed facts are set forth in the opinion of

the court of appeals (Pet. App. 17a-19a). Briefly, they

show that on February 16, 1975, petitioner and a male

companion, who was carrying a suitcase, approached

a baggage x-ray machine at the Detroit Metropolitan

Airport. The male handed the suitcase to an airline

security guard, who placed it onto a conveyor belt

3

that led to the x-ray machine (Tr. 213). Because half

of the suitcase was opaque to x-rays, the security

guard asked if she could open it for a visual inspection.

Petitioner’s companion asked why further inspection was

necessary, and the guard explained that the x-ray exam-

ination had not been fully successful. Hearing no

objection from either petitioner or her companion, the

guard opened the suitcase and observed one article of

clothing and a paper bag containing stacks of $20 and

$50 bills, with the figure “$68,000” written on the

outside of the bag. After the guard closed the suitcase

and returned it to petitioner’s companion, she heard

him tell petitioner, “Don’t worry about it; it’s okay”

(Pet. App. 17a).

The security guard informed an agent of the Drug

Enforcement Administration that she had seen an

unusually large amount of cash in a suitcase and that

petitioner had checked the suitcase and boarded an airplane

for San Diego. Further investigation by the D.E.A.

agent revealed that petitioner’s male companion, who had

not gone aboard the airplane, was a known narcotics

violator and was the son of two other well-known drug

traffickers in Detroit (Tr. 26). The agent transmitted

this information to D.E.A. personnel in San Diego, who

set up surveillance at the San Diego International Airport

in anticipation of petitioner’s arrival (Pet. App. - 18a).

Petitioner was met at the airport in San Diego by

Clarence Turner, with whom she walked in circuitous

fashion to a waiting automobile being driven by Anne

Welsh.' The three then proceeded to a motel in Welsh’s

‘After a separate non-jury trial, Welsh and Turner also were

convicted of conspiracy and substantive counts relating to these

events. Welsh was sentenced to three years’ imprisonment and

Turner to five years’ imprisonment, both sentences to be followed

4

rented car (Tr. 61-62), driving in a manner calculated

to elude any persons following them (Tr. 50-57). When

they arrived at the motel, petitioner and Turner registered

under an alias in one room, while Welsh took another

room. That evening, three long-distance calls to Detroit

were placed by either petitioner or Turner, one of which

went to a telephone number used by known narcotics

violators associated with the man who had accompanied

petiti»ner to the airport in Detroit (Pet. App. 18a).

On the following morning, Turner and Welsh placed an

empty duffel bag in the car and drove to Mexico.

When they returned to the motel about five hours later,

objects were clearly discernible in the bottom of the

duffel bag. Within minutes of the arrival of Welsh

and Turner at the motel, the duffel bag and suitcase

were hurriedly placed in the trunk of the car, and

petitioner and the others drove onto the highway at a high

rate of speed (Tr. 70-73). On the highway, surveilling

agents stopped the vehicle and asked Welsh, the lessee

of the car, whether she would object to a search of the

automobile and its contents for narcotics or contra-

band. Welsh replied, “No, go ahead” (Tr. 75-76). An

agent then opened the trunk, searched the suitcase, and

found four pounds of heroin and one pound of cocaine,

having a total value of about $64,000 (Tr. 322-324,

337-338; Pet. App. 19a).

ARGUMENT

1. Petitioner contends (Pet. 7-12) that the airport

security search of the suitcase carried by her male

companion was unlawful. After a detailed consideration

of the evidence, however, the court of appeals found

by ten-year terms of special parole. The court of appeals affirmed

the convictions in an unpublished memorandum opinion. United States

v. Welsh, Nos. 75-3000 and 75-3001, decided May 25, 1976.

5

that consent to the search had been given (Pet. App.

19a-23a). This factual determination is correct, since

petitioner’s confederate—who exercised control over the

suitcase at all relevant times—voluntarily produced it for

inspection and did not object to the guard’s request

for permission to open the bag after she had explained

the necessity for that action. See United States v.

Matlock, 415 U.S. 164, 171 and n. 7; Schneckloth v.

Bustamonte, 412 U.S. 218, 227; Frazier v. Cupp, 394

U.S. 731, 740; United States v. Fields, 458 F. 2d 1194,

1198 (C.A. 3), certiorari denied, 412 U.S. 927. Indeed,

neither petitioner nor her companion voiced any contem-

poraneous objection to the guard’s inspection of the

suitcase.”

2. Petitioner claims (Pet. 12-14) that her Fourth

Amendment privacy interests were violated when the

motel manager informed D.E.A. agents of the Detroit

telephone numbers called by petitioner and Turner from

their room in the motel. But petitioner or her roommate

voluntarily gave this information to the manager, who

obviously was required to record the numbers to ensure

that proper payment for the long-distance calis was

made. Petitioner had no reasonable expectation that the

manager would not divulge this information to law

enforcement officers and has no standing to complain a-

2Each of the cases cited by the petitioner (Pet. 8-9) as being

in conflict with the decision below is distinguishable on its facts.

Moreover, although petitioner alleges that the security guard’s

search was somehow tainted by her practice of notifying D.E.A.

agents of suspicious circumstances and by the fact that she

occasionally was compensated for this information, the only effect

of her cooperation would be arguably to transform an otherwise

private search into a governmental one. Here, however, the court

of appeals assumed that the guard’s search constituted govern-

ment action (Pet. App. 20a), and it analyzed the search under

Fourth Amendment principles.

6

bout his actions in doing so. See United States v. Miller,

No. 74-1179, decided April 21, 1976, slip op. 6-8.

3. Petitioner’s challenge (Pet. 15-18) to the legality

of the D.E.A. agents’ search of the car and its contents,

which led to the discovery of narcotics in the suitcase,

is insubstantial. Although petitioner contends that

Welsh’s consent to the search was ineffective, the evidence

showed that the car was leased by Welsh and that the

suitcase was jointly controlled by all members of the

conspiracy. Indeed, throughout the period of this two-day

drug transaction, petitioner had been in custody of the

suitcase only for short periods of time. Thus, Welsh’s

consent to the search was binding on petitioner. United

States v. Matlock, supra; Frazier v. Cupp, supra.

Moreover, as the court of appeals held (Pet. App. 23a-

25a), the search and subsequent arrest also were proper

because the agents had probable cause to believe

that the suspects were transporting narcotics. See

Texas v. White, 423 U.S. 67; Chambers v. Maroney,

399 U.S. 42. Although petitioner argues that a warrant

could have been obtained earlier in the day, the

agents’ failure to do so did not render the warrantless

arrests invalid. United States v. Watson, 423 U.S. 411, 417.

4. Petitioner’s contention (Pet. 19-20) that the district

court improperly refused to permit unidentified persons

to post $60,000 to secure her pretrial release is moot,

since petitioner has been convicted and does not specify

how the pretrial imprisonment prejudiced her at trial.

In any event, the trial judge’s actions were wholly

justified, as his explicit statement of reasons indicates

(Pet. App. Sa-6a):

1 want to know who is putting up the money from

one standpoint: to find out what motive [petitioner

will] have to come back to court if she’s allowed

7

out on bond. I’m interested in finding out whether,

whoever this mysterious person is who’s putting up

$60,000 of his or her cash money, whether they

have a motive to keep [petitioner] from coming

back to court * * *.

*- = *&* *&© *&

Now, I can easily see * * * that somebody appar-

ently back in Detroit could have a very strong desire to

see that she never comes back into this court or

any other court, with very strong reasons for that

feeling.

Since the purpose of pretrial release on bail is to “assure

the appearance of the [defendant] as required,” 18

U.S.C. 3146, the court correctly considered whether the

person posting bail for petitioner may have had an ulterior

motive. There is absolutely nothing in the record to

support petitioner’s suggestion (Pet. 20) that the court

wished to confine petitioner prior to trial in order to

force her to cooperate in the government’s investigation.

5. Petitioner contends (Pet. 22-23) that the district

court “smudged the appearance of justice” by refusing to

allow inquiry of a juror who was familiar with a scheduled

government witness. During trial, the prosecutor informed

the judge and defense counsel that one of his intended

witnesses, Agent Gordon Redding of the San Diego

police department, had seen the jurors leave the

courtroom for a recess and had recognized one of them

as a person with whom he had previously been ac-

quainted as a police officer (Pet. App. !la). Defense

counsel asked the prosecutor several clarifying questions

(Pet. App. Ila-12a) but, contrary to petitioner’s assertion

(Pet. 22), did not ask to interrogate the juror, and the

trial resumed. Because of the potential problem, however,

the government decided not to call Agent Redding as a

witness, and the police officer did not testify at trial.

8

There is no support for petitioner’s assertion that this

incident deprived her of a fair trial. Contrary to peti-

tioner’s allegation (Pet. 22), Agent Redding’s name was

not read to the prospective jurors as a potential witness,

his name was not mentioned in the government’s opening

statement (although the name “Redding” was mentioned

in passing by some of the witnesses), and Agent Redding

was not even in the courtroom during trial.? Thus, it is

exceedingly unlikely that the juror could have been

improperly influenced by any prior acquaintance with

Redding.

6. Petitioner contends (Pet. 21) that she was prejudiced

by the district court’s questioning of a witness at trial.

A review of the colloquy to which petitioner objects

(Pet. App. 8a-9a), however, indicates that the court’s

inquiry was relevant to the issues under consideration

and was a legitimate attempt to expedite the trial.

Not only did petitioner’s counsel not object to the court’s

question at the time, but he followed the question by

saying, “Well, let’s get into that aspect” (Tr. 225).4

7. Finally, petitioner’s claim (Pet. 23) that the district

court refused to impose a lenient sentence because she

would not cooperate with the government is based upon

a misreading of the court’s comments at sentencing.

The court said (Tr. 419):

I have the feeling that the only reason [petitioner]

hasn’t cooperated with the government is personal

fear which I suspect in this instance is well-founded.

Therefore, I'm going to sentence her on the basis

that, because of that fear, she’s not going to

‘Because he was an intended witness, Agent Redding had been

sequestered until this incident occurred.

‘Petitioner later moved for a mistrial based on the trial judge's

question (Pet. App. 10a-! la).

9

cooperate with the government. If I thought I could

get her cooperation by giving her thirty years, I'd

give her thirty years, but I’m not going to do

that, but I think the recommendation of the probation

office is a completely proper one under the circum-

stances.

_ This statement clearly indicates that the trial judge

understood why petitioner would not cooperate with the

government and that he did not consider this factor

to enhance the sentence. Indeed, the court explicitly

stated that he would accept the recommendation of the

probation office.

CONCLUSION

It is therefore respectfully submitted that the petition

for a writ of certiorari should be denied.

ROBERT H. Bork,

Solicitor General.

RICHARD L. THORNBURGH,

Assistant Aitorney General.

JEROME M. FEIT,

MARC PHILIP RICHMAN,

Attorneys.

JuLY 1976.

DOJ-1976-07