Opposition — Bertucci v. United States

No. 76-21

Iu the Supreme Court of the United States

OcTOBER TERM, 1976

James J. BERTUCCI, A/K/A/ FRANK “AMES

BERTUCCI, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

oe

RosBerT H. Bork,

Solicitor General,

RICHARD L. THORNBURGH,

Assistant Attorney General,

MICHAEL W. FARRELL,

HOWARD WEINTRAUB,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

In the Supreme Court of the Hnited States

OcTOBER TERM, 1976

No. 76-21

James J. BERTUCCI, A/K/A FRANK JAMES

BERTUCCI, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (P. App. la-13a)

is reported at 532 F. 2d 1144. The opinion of the district

court is unreported.!

JURISDICTION

The judgment of the court of appeals was entered

on April 2, 1976, and a petition for rehearing with sug-

gestion for rehearing en banc was denied on June 4,

1976 (Pet. App. 14). The petition for a writ of certiorari

was filed on July 6, 1976. The jurisdiction of this Court is

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

'A copy of the district court's opinion, which is not included in the

appendix to the petition, is being lodged with the Clerk of this Court.

2

QUESTION PRESENTED

Whether the search of petitioners’ van and of cartons

contained in the rear of the van was lawful.

STATEMENT

After a jury trial in the United States District Court

for the Eastern District of Illinois, petitioners were con-

victed on two counts of possession of stolen merchandise,

in violation of 18 U.S C. 659. Petitioner James Bertucci

was sentenced to three years’ imprisonment, followed by

a probationary period of two years. Petitioners Joseph

Argento and Phillip Abbott were sentenced to two years’

imprisonment, followed by two years’ probation. The

court of appeals affirmed, one judge dissenting (Pet. App.

la-13a).

The evidence adduced at a pre-trial suppression hearing

and at trial showed that at 1:30 a.m. on November 17,

1974, Illinois State Troopers Donald Pabst and Clyde Paris

observed a van weaving back and forth across the center

line of a highway. The officers directed petitioner Ber-

tucci, who was driving the van, to pull off the road. Peti-

tioner Bertucci complied and then stepped out of the van

and met the two officers, who advised him of the reason

his vehicle had been stopped. Upon request, petitioner

Bertucci displayed his driver's license and told the officers

that he had been weaving across the highway because he

was sleepy (H. 3-7; Tr. 9-12, 20-21).?

Officers Pabst and Paris moved to the front of the van

to inspect that portion of it for alcohol or weapons (H. 7,

14, 18, 23; Tr. 21). As they did so, petitioner Bertucci

stepped in front of Officer Pabst and “indicated [that]

he didn’t want him to look in the van for some reason or

*“H.” refers to the transcript of the pre-trial suppression hearing

held on June 5, 1975.

3

another” (H. 7). The officers then shined their flashlights

through the front windows of the van and observed peti-

tioner Abbott in the passenger seat, cartons with invoice

envelopes attached to them in the rear of the van (H. 7-8,

12, 14, 22-23; Tr. 21), and petitioner Argento lying

“spread eagle” on his stomach over the tops of the cartons

(Tr. 11-12). When Officer Pabst asked what the men were

doing with the van, petitioner Bertucci replied that they

were moving his aunt’s possessions from Evansville,

Indiana to Chicago (H. 13-14; Tr. 12-13, 21-22).

As the officers peered through the rear window of the

van, they noticed that or of the invoices attached to a

carton showed that the box contained new stereo equip-

ment and that a hardware store in Beaver Dam, Kentucky,

was identified as the intended recipient of the shipment

(Tr. 14). Petitioner Bertucci immediately changed his

explanation for using the van, now stating that his aunt

had bought the merchandise in Evansville and that he and

the others were bringing it to Chicago for her (H. 10, 15).

When the officers asked petitioner Bertucci if they could

inspect the boxes more closely, he replied “yes” and

opened the back door of the van for them (H. 9, 14, 17,

19-21; Tr. 14, 22). After reading one of the invoices, the

officers asked petitioners if they would be willing to

drive the van to the police station, where there was better

lighting and security (Tr. 14). Petitioners agreed and told

the officers that if they could make some telephone calls

at the station, they would prove that the boxes had been

picked up for petitioner Bertucci’s aunt (H. 10; Tr. 23-24).

At the police station, the officers opened the shipping

cartons and discovered that they contained blue jeans

and stereo components. Officers Pabst and Paris also

learned through a telephone call that a Beaver Dam shop-

keeper had ordered the goods weeks earlier but had not

received them. After petitioners were advised of their

4

Miranda rights, they gave yet a third explanation for their

possession of the goods, which several telephone calls

failed to substantiate. Petitioners were then arrested

for possession of stolen property (H. 10-13, 15-16, 21; Tr.

14-17, 23-26, 31-33).

ARGUMENT

|. Petitioners do not challenge the legality of their

stop by the police or the initial inspection of the front of

their van for alcohol or weapons (Pet. 8), but they contend

that the officers lacked authority to search the rear portion

of the van or the cartons. As the court of appeals correctly

concluded (Pet. App. 5a), however, petitioners freely

consented to the search of those areas. After an initial

reluctance to permit inspection of the van, petitioner

Bertucci changed his mind and, upon the officers’ request

for permission to examine the cartons more clearly,

replied “yes” and opened the rear door. A moment later,

petitioners agreed to drive to the police station, where the

lighting and security were better; indeed, they even

Stated that they would make telephone calls at the sta-

tion that would clear them of suspicion.

Petitioners’ consent clearly satisfied the standards of

voluntariness announced by this Court in United States

v. Watson, 423 U.S. 411, 424-425, and Schneckloth v.

Bustamonte, 412 U.S. 218, 227-234. Petitioner Bertucci

was not under arrest when he consented to the inspection

of the cartons,’ and his “consent was given while on a

public [highway and] not in the confines vu: the police

station.” United States v. Watson, supra, 423 U.S. at 424.

He consented almost immediately, rather than after

lengthy and “subtly coercive” police questioning (Schneck-

loth v. Bustamonte, supra, 412 U.S. at 299), and, as

‘See n. 4. infra.

5

the court of appeals noted (Pet. App. 5a), “[t]he record

discloses no overt act, threat of force, promise or other form

of coercion suggesting that the [consent] was other than

voluntary.” Furthermore, from the officers’ initial request

to inspect the rear of the van until the search of the cartons

at the police station, neither petitioner Bertucci nor the

other petitioners voiced any objection to the search.

Measured by “the totality of all the circumstances”

(Schneckloth v. Bustamonte, supra, 412 U.S. at 227),

therefore, petitioners’ consent to the search of the cartons

was voluntary.

2. The district court (H. 26) and the court of appeals

(Pet. App. 4a-Sa) also correctly concluded that Officers

Paris and Pabst had probable cause to search the cartons

in petitioners’ van. Although petitioner Bertucci had

told the officers that he and the other men were moving

his aunt’s possessions from Evansville, Indiana, to Chicago,

the invoice envelopes, which were exposed to view from

outside the van, revealed that the cartons contained

stereo equipment that had apparently been ordered by

a hardware store in Kentucky. In view of the position in

which petitioner Argento was discovered, petitioner

Bertucci’s initial hesitation to permit the officers access

to the van, and the subsequent changes in petitioners’

story, the officers had reasonable grounds to believe that

the van and the cartons contained evidence of a crime.

Since the officers had probable cause to inspect the vehi-

cle on the highway, their later search without a warrant

at the police station was lawful. Texas v. White, 423 U.S.

67; Chambers v. Maroney, 399 U.S. 42.4

4Although petitioners also contend (Pet. I1-14) that they were

arrested on the highway without probable cause, the record esta-

blishes that their arrest occurred only after they had given a third

false explanation for their possession of the merchandise at the police

station and after the police had learned that the goods were part of

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 Attorney General.

MICHAEL W. FARRELL,

HOWARD WEINTRAUB,

Attorneys.

SEPTEMBER 1976.

a shipment that had not been received by its owner (H. 10-13, 15, 21).

Furthermore, Officers Pabst and Paris did not draw their guns or

frisk petitioners on the highway, and petitioners proceeded to the

police station in their own van, unaccompanied by the officers.

Those factors clearly indicate that petitioners were not arrested until

after their arrival at the station. In any event, since the search in this

case was justified by petitioner's consent and by probable cause,

rather than as incident to their arrest. no evidence introduced at

trial was attributable to their arrest.

The government's petition for a writ of certiorari in United States

Vv. Chadwick, No. 75-1721, presents the question whether a search

warrant is required before law enforcement officers may open

a closed footlocker which they have probable cause to believe contains

contraband. There is no need to hold this case pending the disposition

of Chadwick, however. since Chadwick does not involve the nature

and scope of the automobile search exception. Furthermore, as noted

above. see p. 4, supra, petitioners’ consent is an independent ground

on which to sustain the search conducted by the officers.

DOJ-1976-09