Opposition — Lewis v. United States

No. 77-431

>.

<<

s

In the Supreme Court of the Hnited States

Octoser Term, 1977.

WILLIAM VAN LEWIS, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR ,

THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

DANIEL M. FRIEDMAN,

Acting Solicitor General,

’ BENJAMIN R. CIVILETTI,

Assistant Attorney General,

JEROME M. Feit,

KATHERINE WINFREE,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

“- %

- ‘

oN

het

3 ; a 2

‘ ae,

“

Po : t > ‘

4 — ae ¢ 7 .

aay se PS ’ ad + : ~ 3 & eA (. a“ ee

ai : — 7 i F ¥ ? . , | 4

ey i . “s _— uf + per” - PeTA| rs! T. PA 2} mee AIS a e4 a >

In the Supreme Court of the United States

OCTOBER TERM, 1977

No. 77-431

WILLIAM VAN LEWIS, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. C) is

reported at 556 F. 2d 385. The opinion of the district

court is reportec at 409 F. Supp. 535.

JURISDICTION

The judgment of the court of appeals was entered on

June 6, 1977. A petition for rehearing was denied on

August 5, 1977 (Pet. App. D). On August 31, 1977, Mr.

Justice Stewart extended the time in which to file a

petition for a writ of certiorari to and including

September 19, 1977 (Pet. App. E), and the petition was

filed on that date. The jurisdiction of this Court is

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

(1)

2

QUESTIONS PRESENTED

1. Whether there was probable cause for petitioner’s

arrest.

2. Whether the search of petitioner’s suitcase, which he

was carrying at the time of arrest, violated the Fourth

Amendment.

STATEMENT

After a jury trial in the United States District Court for

the Eastern District of Michigan, petitioner was convicted

of possession of heroin with intent to distribute it, in

violation of 21 U.S.C. 841(a)(1). He was sentenced to five

years’ imprisonment and a special parole term of three

years. The court of appeals affirmed (Pet. App. C).

The facts relevant to petitioner’s claims are set forth in

the opinions of the court of appeals (Pet. App. 14-18) and

the district court (409 F. Supp. at 539-540). They show

that at approximately 10:50 a.m. on July 8, 1975, Susan

Le Blanc, a ticket agent for American Airlines at Detroit

Metropolitan Airport, informed Special Agent Paul

Markonni of the Drug Enforcement Administration that

a suspicious person using the name “J. Hall” had just

purchased a first class ticket to Los Angeles, California,

with currency of small denominations. According to Le

Blanc, the man had checked a virtually empty suitcase

and, although initially requesting a one way ticket, had

bought a round trip ticket “because if everything went all

right he would be coming back later that evening” (Pet.

App. 14).!

“J. Hall” seemed suspicious to Le Blanc because he appeared to

match a “drug courier profile” developed by D.E.A. agents as a

method of detecting narcotics traffickers. The characteristics listed on

the profile include: (1) the use of small denomination currency for

ticket purchases; (2) short trips to and from major drug import

3

Agent Markonni immediately investigated Le Blanc’s

report and learned that the man’s airplane reservation had

been made earlier that week by telephone and that a

telephone number had been provided as a contact. The

number was listed to petitioner at an address in Detroit.

Agent Markonni went to the residence and identified

himself to the apartment manager, who spontaneously

stated that the agent must have come to inquire about

petitioner. When asked why he thought so, the manager

told Agent Markonni that the Detroit Police Department

was surveilling petitioner’s apartment for alleged narcotics

traffic. The manager’s description of petitioner matched

Le Blanc’s description of “J. Hall.”2 Agent Markonni then

contacted the police department, which informed him that

petitioner had been arrested in February 1973 for

possession of heroin and had been convicted of two non-

narcotics related offenses.

At 4:00 a.m. on July 9, 1975, Agent Markonni was

alerted by American Airlines that “J. Hall” was scheduled

to return from Los Angeles early that morning. Accord-

ingly, Agent Markonni and another D.E.A. agent went

to the airport, where they observed petitioner (wearing the

same clothing Le Blanc had described) leave the airplane

and go to the baggage claim area. Because petitioner’s

suitcase did not appear on the luggage conveyor belt with

that of the other passengers, he went to the baggage claim

office. While waiting for his suitcase, petitioner noticed

centers; (3) the absence of luggage or use of empty suitcases; (4)

nervousness; and (5) use of an alias. See United States v. McCaleb,

552 F. 2d 717 (C.A. 6).

?The manager also provided Agent Markonni with a description

and license plate number of petitioner’s car and expressed his belief

that petitioner lived somewhere other than the apartment. A check

disclosed that the license plate number was registered to petitioner at

a second address in Detroit.

4

the agents and appeared nervous. As soon as he received

the suitcase, petitioner proceeded through an airport

terminal exit. At this point the agents approached

petitioner and identified themselves, told him that they

had reason to believe he was in possession of narcotics,

and asked him to accompany them to an office inside the

terminal. Once there, Agent Markonni asked petitioner

whether his suitcase was locked. In response, petitioner

bent over, reset the combination lock of the suitcase so

that it could be opened, and stood up. Agent Markonni

then opened the suitcase, which contained only a shaving

kit and one piece of clothing. Inside the shaving kit the

agents found a large quantity of heroin.

ARGUMENT

1. Petitioner contends (Pet. 6-8) that the agents lacked

probable cause to arrest him when he claimed his suitcase

at the airport. This claim was thoroughly considered and

rejected by the courts below. As the court of appeals

correctly held (Pet. App. 21-22):

What Agent Markonni knew for the purposes of

probable cause was that [petitioner] had taken a

short trip, lasting less than one day, to Los Angeles, a

distant city from which federally controlled narcotics

had been illegally coming into Detroit; that

[petitioner] had used an alias when paying for his

ticket, which indicated the likelihood of an illicit

purpose in the trip; that [petitioner] had taken with

him to Los Angeles one suitcase that was virtually

empty; that [netitioner] had a prior arrest for

possession of heroin and had two non-drug related

convictions; that [petitioner] had left with American

Airlines a telephone number to an apartment which

was noticeably under surveillance for narcotics

traffic; that [petitioner’s] personal residence was a

5

place other than the apartment under surveillance for

narcotics traffic, which supported the inference that

the apartment under surveillance was a place used by

[petitioner] for narcotics traffic; and that [petitioner]

had returned to Detroit wearing the same clothes as

when he had left.

While these facts could be interpreted in such a

way as to provide an innocent explanation for

[petitioner's] behavior, Agent Markonni, as a

prudent man, could reasonably conclude from all the

facts put together that [petitioner] had gone to Los

Angeles to obtain narcotics.

See United States v. Prince, 548 F. 2d 164, 165-166(C.A.

6). Compare United States v. McCaleb, 552 F. 2d 717,

719-720 (C.A. 6).

2. Petitioner further contends (Pet. 8-10) that, even if

the agents had probable cause to arrest him, the

warrantless search of his suitcase was invalid under this

Court’s decision in United States v. Chadwick, No. 75-

1721, decided June 21, 1977.3

a. In Chadwick, this Court held that federal law

enforcement agents who had arrested several suspects,

seized a footlocker from the trunk of their car, and

3Petitioner challenges the agents’ failure to obtain a warrant for the

first time before this Court, having argued below only that his arrest

was invalid and that he had not consented to the search. The federal

courts have repeatedly held that “where a party has shifted his

position on appeal and advances arguments available but not pressed

below, and where that party has had ample opportunity to make the

point in the trial court in a timely manner, waiver will bar raising the

issue on appeal.” United States v. Braunig, 553 F. 2d 777, 780 (C.A.

2) (citations omitted). See also United States v. Lovasco, No. 75-

1844, decided June 7, 1977, slip op. 5, n. 7; Adickes v. S.H. Kress &

Co., 398 U.S. 144, 147, n. 2; Lawn v. United States, 355 U.S. 339,

362-363, n. 16.

6

transported it to the agents’ offices, were constitutionally

required to obtain a warrant before searching its contents.

The Court concluded that once the agents had seized the

locker, gained “exclusive dominion” over it, and arrested

its owner, there was no exigency requiring an immediate

search and that a warrantless search was therefore

unreasonable (slip op. 11-14).

Chadwick did not purport, however, to change the

settled construction of the Fourth Amendment permitting

warrantless searches incident to a custodial arrest of the

arrestee and property in his immediate possession,

including items (such as a suitcase) being carried. See

United States vy. Edwards, 415 U.S. 800, 802-803; United

States v. Robinson, 414 U.S. 218, 236; Abel v. United

States, 362 U.S. 217, 239; Draper v. United States, 358

U.S. 307, 314. Thus, the Court observed in Chadwick

that “[w]hen a custodial arrest is made, there is always

some danger that the person arrested may seek to use a

weapon, or that evidence may be concealed or destroyed”

(slip op. 12) and it recognized that “(t]he potential

dangers lurking in all custodial arrests make warrantless

searches of items within the ‘immediate control’ area

reasonable without requiring the arresting officer to

calculate the probability that weapons or destructible

evidence may be involved” (id. at 13). So here, the

suitcase was “immediately associaieu with the person” of

petitioner (ibid.), and the search was properly conducted

as incident to and contemporaneous with petitioner’s

arrest. See United States v. Gill, 555 F. 2d 597, 599 (C.A.

6); United States v. Prince, supra, 548 F. 2d at 165;

United States v. Giles, 536 F. 2d 136 (C.A. 6); United

States v. Cepulonis, 530 F. 2d 238, 242 (C.A. 1), certiorari

denied, 426 U.S. 922; United States v. Eatherton, 519 F.

2d 603, 610 (C.A. 1), certiorari denied, 423 U.S. 987;

United States v. Frick, 490 F. 2d 666, 669-670 (C.A. 5),

7

certiorari denied, 419 U.S. 831: United States v. Mehciz,

437 F. 2d 145, 146-148 (C.A. 9), certiorari denied, 402

U.S. 974.4

b. The search of the suitcase also was justified by

petitioner’s consent.’ Consent may be in the form of

words, gesture, or conduct. United States v. Griffin, 530

F. 2d 739, 742 (C.A. 7); Robbins v. MacKenzie, 364 F. 2d

45, 48-49 (C.A. 1), certiorari denied, 385 U.S. 913. Here,

when the agents asked petitioner whether his suitcase was

locked, he responded by leaning over, resetting the com-

bination lock so that the suitcase could be opened, and

standing up. Petitioner also did not object when Agent

Markonni opened the suitcase and searched its contents.

These actions, as the district court correctly found (409 F.

Supp. at 545), clearly constituted a consent to the search.

See Schneckloth v. Bustamonte, 412 U.S. 218, 220;

4Unlike in Chadwick, where the search took place an hour and a

half after the arrest and in an entirely different location, here the

search of petitioner’s suitcase was neither “remote in time [n]Jor place

from the arrest” (United States v. Chadwick, supra, slip op. 13,

quoting from Preston v. United States, 376 U.S. 364, 367).

Even assuming that Chadwick could be interpreted to cast doubt

upon the continued validity of warrantless searches of chattels taken

from an arrestee at the time of his arrest, it should not be applied to

searches occurring prior to the decision. See United States v. Reda,

C.A. 2, No. 77-1062, decided October 12, 1977; United States v.

Montgomery, 558 F. 2d 311 (C.A. 5), certiorari denied, No. 77-5205,

October 31, 1977. As this Court observed in United States v. Peltier,

422 U.S. 531, 535, in the context of the exclusionary rule, which is

unrelated to the truthfinding function of the criminal process, new

constitutional principles have been accorded prospective application

only.

‘Although the district court found that petitioner had consented to

the search, the court of appeals declined to reach the issue in light of

its finding that the search was incident to a valid arrest (Pet. App. 17,

n. 3).

8

United States v. Bertucci, 532 F. 2d 1144, 1146 (C.A. 7),

certiorari denied, 429 U.S. 895; United States v. Griffin,

supra, 530 F. 2d at 743-744; United States v. Turbyfill,

525 F. 2d 57, 59 (C.A. 8); Robinson v. United States, 325

F. 2d 880, 884 (C.A. 5).

Moreover, petitioner’s consent satisfied the standards of

voluntariness announced in United States v. Watson, 423

U.S. 411, 424-425, and Schneckloth v. Bustamonte, supra,

412 U.S. at 227-234. The consent was given in the airport

terminal and “not in the confines of the police station”

(United States v. Watson, supra, 423 U.S. at 424);

although petitioner was told he was suspected of carrying

narcotics, he consented immediately, rather than after

lengthy and “subtly coercive” questioning (Schneckloth v.

Bustamonte, supra, 412 U.S. at 229); and the record

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

coercion suggesting that petitioner's consent was com-

pelled.

Nor is there any indication that petitioner was mentally

deficient or unable to exercise a free choice. To the

contrary, petitioner hadithe equivalent of a high school

diploma (Tr. 87), was “of at least average * * * intel-

ligence” (409 F. Supp. at 545), and was familiar to some

extent with the criminal process by virtue of his previous

arrests and convictions. Finally, as noted above, at no

time prior to or during the search did petitioner voice any

objections. Cf. United States v. Bertucci, supra, 532 F.2d

at 1146. Measured by “the totality of all the cir-

cumstances” (Schneckloth v. Bustamonte, supra, 412 U.S.

at 227), petitioner’s consent to the search of his suitcase

was voluntary.

9

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

DANIEL M. FRIEDMAN,

Acting Solicitor General.*

BENJAMIN R. CIVILETTI,

Assistant Attorney General.

JEROME M. FEIT,

KATHERINE WINFREE,

Attorneys.

DECEMBER 1977.

*The Solicitor General is disqualified in this case.

DOJ-1977-12