Opposition — Swarovski v. United States

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st, /\ < MANERED SWAROVSKI, PETITIONER

Reet '. JUNITED STATES OF AMERICA

ON PETITION FOR-A: WRIT OF CERTIORARI TO

eps THE UNITED STATES COURT OF APPEALS FOR

+ prs. gor "THE SECOND CIRCUIT

grr ; ‘BRIEF FOR THE UNITED STATES

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“AAC ie atari ee - BENJAMIN R. Civiterti, : st

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‘2 a aera <>, 4 Attorneys, Bc ae

"| PEN ee ont leeh Meahinaton, D.C. 20530. peas

In the Supreme Court of the Hnited States

OcToBER TERM, 1977

No. 77-495

MANFRED SWAROVSKI, 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

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-20a)

is reported at 557 F. 2d 40. The opinion of the district

court (Pet. App. 24a-63a) is not reported.

JURISDICTION

The judgment of the court of appeals was entered on

May 31, 1977. A petition for rehearing was denied on

August 3, 1977 (Pet. App. 23a). By order of August 26,

1977, Mr. Justice Blackmun extended the time for filing a

petition for a writ of certiorari to and including

September 30, 1977; the petition was filed on that date.

The jurisdiction of this Court is invoked under 28 U.S.C.

12541).

(1)

2

QUESTIONS PRESENTED

1. Whether Customs agents had authority under New

York law to arrest petitioner for a federal felony

committed in their presence.

2. Whether any alternative ground supports the district

court’s order suppressing the statements petitioner gave

after being arrested.

STATEMENT

A two-count indictment filed in the United States

District Court for the Eastern District of New York

charged petitioner with attempting to export military

equipment without the required State Department license,

and with conspiracy to do so, in violation of the

Munitions Control Act.!

1. The facts brought out at the hearing on petitioner’s

motion to suppress evidence are summarized by the

district court (Pet. App. 26a-34a) and the court of appeals

(id. at 3a-Sa). In March 1975 Photo-Sonics, Inc., a

California firm that manufactures a gunsight camera for

use on military fighter planes, notified the government

that it suspected that one of its cameras, ostensibly

purchased by Swarolite, Inc., a Tennessee corporation,

was destined for export without the required export

license. Cooperating with federal agents, Photo-Sonics

sent the camera to Tennessee; Customs agents observed

James Sproul retrieve the package. The agents followed

Sproul to a nearby motel, where he delivered the package

to petitioner.”

'22 U.S.C. 1934(c), as implemented by Part | of Executive Order

No. 10973, 22 C.F.R. 121.01, 123.01 and 127.01.

2Petitioner, an Austrian citizen and the majority stockholder of

Swarolite, Inc., originally was listed as the consignee of the camera,

but that designation was withdrawn when the State Department

refused to issue an export license because Swarolite would not state

the intended use of the camera.

3

The agents kept petitioner under surveillance and

followed him to New York City. They learned that

petitioner had made reservations for a Lufthansa flight to

Munich; when he failed to check in for that flight, agents

discovered that petitioner already had checked in for a

Pan American Airlines flight scheduled to depart one

hour earlier. A Customs agent located petitioner’s luggage

(which had been checked for departure) and opened one

suitcase, in which he discovered the camera. He closed the

suitcase and took it, with petitioner’s remaining luggage,

to the passenger area.

Meanwhile, other agents followed petitioner into the

boarding area. They identified themselves to petitioner

and asked him several questions, including whether he

had purchased anything with a value in excess of $250.00

and whether he had any items requiring a shipper’s export

declaration or a State Department export license.

Petitioner answered “no” to each question. He later stated

that he had purchased a camera, but he denied knowing

its value. The agents escorted petitioner to a separate

room, where petitioner identified his luggage. The suitcase

containing the camera was opened; petitioner then

admitted that he did not have the necessary export

license. Customs agents arrested him and gave him

Miranda warnings. Petitioner made one inculpatory

statement later that day at the Customs office and a

second statement the following day at the United States

Courthouse.

2. Petitioner moved to suppress the camera, several

seized documents, and his statements. The district court

refused to suppress the real evidence. It concluded that

the search of petitioner’s suitcase was authorized by 22

U.S.C. 401, which permits Customs officers, acting on

probable cause, to seize military equipment intended to be

exported unlawfully (Pet. App. 40a-4Sa, 63a). The court

4

held, however, that the agents were not authorized to

arrest petitioner, because federal law does not specifically

authorize Customs agents to make arrests in connection

with unlawful exports and because the agents were not

entitled to make the arrest under the law of New York (id.

at 57a-63a). The court suppressed petitioner’s post-arrest

statements, finding them to be the fruit of an unlawful

arrest.

The United States filed an interlocutory appeal,

pursuant to 18 U.S.C. 3731, from the suppression order,

and the court of appeals reversed. After thoroughiy

discussing the law of arrest in New York, the panel held

that state law authorized the Customs agents to arrest

petitioner for a federal felony committed in their presence.

The court declined to consider petitioner's argument that

the search of his luggage was illegal, explaining that the

argument was “not independent grounds supporting the

district court’s suppression” order (Pet. App. 20a).

ARGUMENT

Petitioner’s arguments are premature. The decision of

the court of appeals has placed petitioner in the same

position he would have occupied if the district court had

denied his motion to suppress. A denial of a motion to

suppress could not have been reviewed before trial.

Abney v. United States, 431 U.S. 651, 659, 663; DiBella

v. United States, 369 U.S. 121. Petitioner might be ac-

quitted at trial, in which case his claim would be moot.

On the other hand, if he should be convicted and his

conviction should be affirmed, he would be able to pre-

sent all of his arguments—those concerning suppression

as well as any others that may arise out of the trial—to

this Court in a petition for certiorari seeking review of

the final judgment. American Foreign S.S. Co. v. Matise,

=”

a

5

423 U.S. 150, 155. There is no reason for piecemeal

review of petitioner’s contentions, which are, in any

event, unpersuasive.

1. The central question addressed by the court of

appeals was whether New York law authorized the

Customs agents to arrest petitioner. Although the au-

thority of the agents to make the arrest here turned on

state law, we doubt that the propriety of suppression of

petitioner’s voluntary statements should do so. Statements

voluntarily made by a person are admissible in evidence

unless the Constitution, a federal statute, or a formal rule

calls for their exclusion. 18 U.S.C. 3501; Fed. R. Evid.

402. This Court has held several times that the application

of an exclusionary rule is not the proper response to a

violation of a state statute.* Consequently, we submit that

the lawfulness of the arrest under New York law is not

dispositive here. Petitioner does not argue that the Con-

stitution required a warrant to arrest him or that the Cus-

toms agents lacked probable cause to do so,’ and the

arrest therefore comported with ihe Constitution. The

statements petitioner voluntarily gave after his constitu-

tionally permissible arrest are admissible in evidence.

But however that may be/ the court of appeals carefully

analyzed New York law and concluded that it authorized

the arrest of petitioner (Pet. App. 6a-20a). We rely on its

opinion, which not only follows an unbroken line of

3See United States v. Watson, 423 U.S. 411, 420-421 n. 8; United

States v. Di Re, 332 U.S. 581, 589.

‘See, e.g., Rios v. United States, 364 U.S. 253, 260-261; Preston v.

United States, 376 U.S. 364, 366; Cady v. Dombrowski, 413 U.S. 433,

449.

5See also the discussion at pages 6-7, infra.

6

authority in the court of appeals® but also adheres to the

clear implication of a decision by the State’s highest

court.’ There is no reason for this Court to review what is,

at most, a question of state law. Baggett v. Bullitt, 377

U.S. 360, 376-377; Bishop v. Wood, 426 U.S. 341, 345-

346.

2. Petitioner also contends that the court of appeals

should have considered alternative arguments that he

offered in support of the suppression order. The court of

appeals recognized, as was required (see Massachusetts

Mutual Life Insurance Co. v. Ludwig, 426 U.S. 479), that

petitioner could assert any “independent grounds support-

ing the district court’s suppression” (Pet. App. 20a). The

arguments petitioner presented, however, did not support

suppression of his voluntary statements, and the court of

appeals therefore was not required to consider them.

Petitioner argued, for example, that his luggage was not

properly opened at the airport because of the absence of a

warrant, an argument that the district court rejected in

concluding that the physical evidence is admissible (Pet.

App. 40a-52a). But even if the search were improper, the

impropriety would furnish grounds for suppression of

petitioner’s voluntary statements only if (i) there would

not have been probable cause to arrest him in the absence

of the discovery of the camera during the search, and (ii)

the search was so close to the statements in a causal

chain that the statements properly could be seen as the

“fruit” of the search. See Brown v. Illinois, 422 U.S. 590.

*Marsh v. United States, 29 F. 2d 172 (C.A. 2); United States

v. Lindefeld, 142 F. 2d 829 (C.A. 2); United States v. Burgos, 269

F. 2d 763 (C.A. 2); United States v. Rosse, 418 F. 2d 38 (C.A. 2),

certiorari denied, 397 U.S. 998.

’People v. Floyd, 26 N.Y. 2d 558, 561, 312 N.Y.S. 2d 193, 194,

discussed at Pet. App. 12a-l4a.

7

Here the agents unquestionably had probable cause to

arrest petitioner wholly apart from finding the camera in

his luggage; they had seen him take possession of the

camera and transport it to New York, where he made

misleading plane reservations in an apparent attempt to

leave the country without detection. The agents were

entitled to conclude that it was more likely than not that

petitioner was taking the camera with him, and the

confirmation of that fact by opening his luggage was not

essential to the establishment of probable cause (indeed,

petitioner does not deny that there was probable cause to

believe the camera was in his luggage). Moreover,

petitioner gave his statements only after an opportunity

for reflection (one of them was given the day after the

arrest), and they should not be suppressed even if the

search was one link in the causal chain leading to them.®

’In any event, the district court properly rejected petitioner's

argument that the search of his bag was unconstitutional. The search

was conducted at the border, and border searches are a recognized

exception to the Warrant Clause of the Fourth Amendment. United

States v. Ramsey, 431 U.S. 606. Although the border search authority

usually is applied in the case of incoming articles, Congress decided

that searches for certain items of military value that might be

exported also were necessary, and it authorized the Customs Service

to conduct them (see Pet. App. 41a-46a and 22 U.S.C. 401(a)). The

border search authority applies to searche -f outgoing articles

(United States v. Stanley, 545 F. 2d 661 (C.A. 9); Samora v. United

States, 406 F. 2d 1095 (C.A. 5)), and the search of petitioner’s luggage

on probable cause therefore complied with the Fourth Amendment.

The propriety of the search and arrest also might be founded on

the exigent circumstances surrounding them: petitioner and his

luggage were about to depart from the United States, and unless the

luggage had been seized (and petitioner arrested) at once, it would

have been too late. If, as petitioner contends, inspection of the

contents of his luggage was an essential foundation for his arrest,

then the agents were entitled not only to seize the luggage but to open

it before petitioner's plane left the country. (United States v.

Chadwick, No. 75-1721, decided June 21, 1977, on which petitioner

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CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

Wave H. McCres, Jr.,

Solicitor General.

BENJAMIN R. CIVILETTI,

Assistant Attorney General.

WILLIAM G. OTIs,

SARA CRISCITELLI,

Attorneys.

JANUARY 1978.

relies, involved neither a border search nor an on-the-spot opening of

luggage under exigent circumstances. Chadwick involved, instead, a

search after a footlocker had been removed to a federal building.)

Petitioner contends (Pet. 7-9) that suppression of his voluntary

statements nevertheless is appropriate because the first opening of his

luggage was “kept secret” from the Assistant United States Attorney

responsible for the case. Petitioner does not refer to the record, and

sO we cannot ascertain in what way he believes the search was “kept

secret” from the prosecutor. It was freely admitted by the agents

during their testimony, and it is not uncommon for prosecutors to be

unacquainted with some of the details of a case until shortly before

suppression hearings. At all events, petitioner does not demonstrate

how this “secrecy” harmed him.

DOJ-1978-01