Opposition — Coplen v. United States

No. 76-586

In the Supreme Court of the Bante Ase

OCTOBER TERM, 1976

TOMMY Joe COPLEN, 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

ROBERT H. Bork,

Solicitor General,

RICHARD L. THORNBURGH,

Assistant Attorney General,

MICHAEL W. FARRELL,

RICHARD S. STOLKER,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

In the Supreme Court of the United States

OCTOBER TERM, 1976

No. 76-586

TOMMY JOE COPLEN, 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. la-10a)

is reported at 541 F. 2d 211.

JURISDICTION

The judgment of the court of appeals was entered on

August 16, 1976. A petition for rehearing was denied on

September 17, 1976 (Pet. App. |b-2b). The petition for a

writ of certiorari was not filed until October 27, 1976,

and is therefore out of time under Rule 22(2) of the

Rules of this Court.' The jurisdiction of this Court is

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

‘The court of appeals entered an order staying the issuance of its

mandate (Pet. 2). [hat order did not, however, extend the time

within which to file a petition for a writ of certiorari, which runs

(1)

2

QUESTIONS PRESENTED

|. Whether law enforcement officers must obtain a

warrant before using a flashlight to illuminate the

interior of an airplane, the windows of which are exposed

to common view.

2. Whether the evidence was sufficient to support the

conviction.

STATEMENT

After a jury trial in the United States District Court

for the District of Arizona, petitioner was convicted of

conspiracy to import and to possess approximately 500

pounds of marijuana, in violation of 21 U.S.C. 846 and

963; of unlawful importation of marijuana, in violation of

21 U.S.C. 952(a) and 960(a)(1) and (b); and of possession

of marijuana with intent to distribute, in violation of

21 U.S.C. 841(a)(1) and (b).2 He was sentenced to con-

current terms of five years’ imprisonment, to be followed

by three years’ special parole, and was fined a total of

$1,500. The court of appeals affirmed (Pet. App. la-10a).

The facts are recounted by the court of appeals (Pet.

App. 2a-4a). Federal agents, their suspicions aroused by a

prior discovery of marijuana debris in petitioner’s air-

plane, observed Henry Valenzuela drive petitioner to

Freeway Airport, in Tucson, Arizona, where petitioner

entered his plane and (followed by an agent) flew to

Caborca, Mexico, an area known to Customs agents as

a frequent rendezvous point for drug traffickers (1 Tr.

trom the date of judgment or of the denial of a timely petition for

rehearing. Department of Banking v. Pink, 317 U.S. 264. 266.

Market Street Railway Co. vy. Railroad Commission, 324 U.S. 548,

$51-552.

"Henry Valentin Valenzuela and John Balmer McKittrick were

convicted of conspiracy and possession. They were not charged with

importation.

85-86).* Although he was aloft after dark, petitioner did

not activate the aircraft’s navigation lights (I Tr. 86-87).

As petitioner’s plane began to descend in Mexico, the

agent following him observed flashing automobile lights

on the ground below, signifying a place where the plane

could land (1 Tr. 88).

In the meantime, Vaienzuela had driven to a restau-

rant, where he met John McKittrick. Valenzuela and

McKittrick drove separate camper vehicles to Silver Bell

Estates, Arizona, known to the agents as a place used by

narcotics dealers (1 Tr. 110). The campers faced each

other from a distance with their headlights illuminating

a dry lake bed. The agents observed a plane fly in at a

low altitude between the two campers.* Shortly thereafter

the campers extinguished their headlights and drove away

in the direction of Phoenix.

While ground surveillance agents followed the campers,

aerial surveillance agents flew to Sky Harbor Airport in

Phoenix. They found that petitioner's aircraft had

returned from Mexico without clearing Customs. The

engine of the plane was still warm (II Tr. 162). With the

aid of a flashlight, an agent looked through a window of

the plane and saw marijuana debris. The agents relayed

this information to the ground units, who then stopped

the two campers; they found 500 pounds of marijuana in

the McKittrick camper. After they were unable to locate

petitioner, the agents entered the locked airplane and

seized the marijuana debris. The debris and the 500 pounds

of marijuana were introduced in evidence at trial (II Tr.

162, 198, 283).

“! Tr.” through “IIL Tr.” designate the transcripts of trial.

‘The agents were able to identify the engine of the airplane as

reciprocating: petitioner's plane also had a reciprocating engine

(11 Tr. 150, 215-216).

4

ARGUMENT

|. Petitioner contends that both the visual inspection

of the interior of his plane and the entry into the plane

without a warrant violated the Fourth Amendment.

The act of the agent in looking through the window of

the plane was not a “search.” Visual observation by a

law enforcement officer situated in a place where he has

a right to be does not require prior judicial approval.

United States v. Santana, No. 75-19, decided June 24,

1976; Air Pollution Variance Board of Colorado v.

Western Alfalfa Corp., 416 U.S. 861: United States v.

Lee, 274 U.S. 559; United States v. Hood, 493 F. 2d 677,

680 (C.A. 9); United States v. Conner, 478 F. 2d 1320,

1323 (C.A. 7); Williams v. United States, 404 F. 2d 493,

494 (C.A. 5).-The Fourth Amendment does not protect

what a person knowingly exposes to public view. Karz v.

United States, 389 U.S. 347, 351-352. Moreover, the use

of a flashlight to illuminate a dark area does not change

this analysis, as the Court held in Lee.’ Rather, the

court of appeals properly concluded (Pet. App. 6a):

The fact that the officer was forced to use a flash-

light is immaterial. Being dark outside, it was neces-

sary to employ such a device. Rather, if privacy

were desired here, Coplen should have closed off the

window from public view. By failing to do so, thus

‘Petitioner asserts that the discovery of the marijuana debris was

impermissible because it was not “inadvertent” (Pet. 16). Although

the United States does not believe that “inadvertence” is a necessary

component of the “plain view” exception to the warrant require-

ment, the existence of such a component would not help petitioner

because we do not rely on the “plain view” rule. We rely. instead.

on the rule that what ts not closed against public inspection ts not

the subject of Fourth Amendment protection a rule that upheld the

law enforcement activity in Santana, Western Alfalfa, and similar

cases in the absence of any “inadvertence.”

5

permitting the agent by mere observation to view

the marijuana debris, there was no reasonable ex-

pectation of privacy insofar as looking into windows

is concerned.

Once the agents had discovered that the airplane con-

tained marijuana debris, they were entitled to seize the

plane for forfeiture (21 U.S.C. 881(a)(4)) and thereafter

to search the plane in their possession without a warrant.

See Cooper v. California, 386 U.S. 58; G.M. Leasing

Corp. v. United States, No. 75-235, decided January 12,

1977, slip op. 12-13.

The seizure and search of the aiiplane was supported

by at least two other rationales as well. Airplanes are

constitutionally indistinguishable from motor vehicles,

which may be seized without warrants. The seizure was

justified by exigent circumstances; aircraft are highly

mobile, and petitioner might have returned and flown off.

Cf. Cady v. Dombrowski, 413 U.S. 433, 441-442. Once

the plane had been seized for this reason, the officers

were entitled to conduct a search because they had

probable cause to believe that it contained evidence of

crime.® Chambers v. Maroney, 399 U.S. 42, 46-52; Texas

v. White, 423 U.S. 67. Moreover, the agents were entitled

to search the plane whether or not there was probable

cause to believe that it contained evidence of crime. The

agents had probable cause to believe that the plane had

just entered the United States without clearing Customs;

‘Petitioner mistakenly relies on Coolidge v. New Hampshire,

403 U.S. 443, for the proposition that searches of vehicles require

warrants. The search in Coolidge took place in the driveway of the

owner's private residence. Searches or seizures of vehicles in other

places present’ quite different problems, as Texas v. White, supra,

and G.M. Leasing, supra, demonstrate.

6

they therefore were entitled to subject it to a border

search. See 19 U.S.C. 1459 and 1460; Carroll v. United

States, 267 U.S. 132, 154.

2. Petitioner contends (Pet. 16-20) that the evidence

was insufficient to support his convictions. Both lower

courts properly rejected this contention. Petitioner was

driven to the Freeway Airport by Valenzuela. Petitioner

then flew into Mexico without activating his navigation

lights and was observed descending to a makeshift

landing strip in an area known to officials to be a meeting

point for narcotics smugglers. Thereafter, a plane with an

engine similar to that of petitioner’s landed in Arizona

and unloaded a cargo of 500 pounds of marijuana, which

McKittrick and Valenzuela retrieved. A short while later.

petitioner's airplane was observed on the ground at a

Phoenix airport, its engine still warm. Marijuana debris

was inside. This evidence was more than sufficient to

establish petitioner’s participation in the crimes.”

Petitioner argues (Pet. 17) that the court of appeals incorrectly

relied on evidence not in the record. namely, that he had flown to

Mexico without filing the required flight plan. Even if petitioner ts

correct that no evidence was introduced to show the existence of such

a requirement or of petitioner's non-compliance with it (see | Tr. 89;

II] Tr. 425). the evidence recited above remains ample to support

the conviction.

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,

RICHARD S. STOLKER,

Attorneys.

JANUARY 1977.

DOJ-1977-01