Reply Brief — Swarovski v. United States

———— —

Supreme Court, U. S.

D

i JAN 18 1978

IN THE MICHAEL RODAK, JR., CLERK

October Term, 1977

No. 77-495

MANFRED SWAROVSKI,

Petitioner,

against

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

REPLY BRIEF FOR THE PETITIONER, IN

FURTHER SUPPORT OF THE PETITION

Ricnarp H. Kun

Attorney for Petitioner

800 Third Avenue

New York, New York 10022

Jaauary 19, 1978

TABLE OF CONTENTS

TABLE OF CASES

American Foreign 8.S. Co. v. Matise, 423 U.S. 150 ....

Brown v. Illinois, 422 U.S. 590, 45 L.Ed.2d 416 (1975)

Chu, In the Matter of, 42 N.Y.2d 490, decided October

I eae

G.M. Leasing Corp. v. United States, 429 U.S. 338, 50

L.BA.2d 530 (1977) oocccceecccccssssssssssssssssssssssessssssssssssseeee

United States v. Stanley, 545 F.2d 661 (9th Cir. 1976)

Uniied States v. Watson, 423 U.S. 411, 46 L.Ed.2d 598

RS RE ELA AAD, OIA Re

Wong Sun v. United States, 371 U.S. 471, 9 L.Ed.2d

I NSC AER Ss er eee: Oe Yok, Ole

IN THE

Supreme Court of the United States

October Term, 1977

No. 77-495

ee

ManFrRED SWAROVSEI,

- Petitioner,

agaist

Unirep States or AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

REPLY BRIEF FOR THE PETITIONER, IN

FURTHER SUPPORT OF THE PETITION

On September 30, 1977, the Petitioner filed his petition

for a writ of certiorari with this Court. Thereafter, the

time of the Government to oppose that petition was ex-

tended (upon the motion of the Government) to December

14, 1977. Apparently, on or about January 16, 1978 the

Government filed its brief opposing the grant of certiorari,

the said opposing brief having been received by Petitioner’s

counsel by mail on January 17, 1978.

ARGUMENT

1. The Government, in opposing the petition, urges:

‘*Petitioner’s arguments are premature.... [I]f

[petitioner] should be convicted and his conviction

should be affirmed, he would be able to present all of

his arguments—those concerning suppression as well

as any others that 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, 423

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

of petitioner’s contentions ....’’ (p. 4, Gov’t. br.)

But, respectfully the authority the Government cites—

American Foreign S.S. Co. v. Matise—a civil case, appears

to have little or no relevance to the proposition for which

it is cited.

Indeed, as noted by the first of the ‘‘Questions Pre-

sented’’ in the petition (petition, p. 2), and in the discussion

thereafter (petition, pp. 10-12), a prime reason for favor-

able action by this Court on the petition is that the instant

case ideally poses for the Supreme Court the opportunity

to limn the scope and impact of an interlocutory appeal,

by the Government, from suppression action. That is now

a largely uncharted area. And there may be res judicata

and other shoals upon which an unwary defendant may

founder. (See the open questions suggested in the petition,

at pp. 10-11.)

It is now unclear, for example, whether a defendant’s

failure to urge (on the Government’s appeal) alternate

grounds for suppression—grounds supported by the hear-

3

ing record—will bar him from later raising those issues

(see petition, footnote at p. 11).

Interestingly, although the Government here and now, in

this high Court, argues against ‘‘ piecemeal review’’ (Gov’t.

br., p. 5), its present position in this regard is diametrically

opposed to the position it took before the Court of Appeals

for the Second Circuit. There it urged (and the Second

Circuit accepted its urging) that the only issue before the

reviewing tribunal was the purported unlawfulness of the

arrest by Customs agents, and that no otlier grounds that

might support the suppression order below were to be con-

sidered. This ‘‘piecemeal appeal’’ question, and the scope

of review by the courts of appeals once the Government has

appealed a suppression order, can only be finally settled

here. The Swarovski case aptly presents it for resolution.

2. The Government, in opposing Supreme Court review,

urges that even if the April 2, 1975 arrest of Mr. Swarovski

was an unlawful one, the exclusionary rule should not have

been applied (Gov’t. br., p. 5). In support of this conten-

tion, the Government suggests that all that is involved,

when federal agents make an arrest without any authority

to do so, and then seek to have it justified as a citizen’s

arrest, is a possible violation of a state statute.

We respectfully submit that the Government miscon-

strues that which took place in both the district court and

the circuit court, and that which is presented to this Court

by the petition. Both courts below agreed that the federal

Customs agents lacked authority from Congress to make

the Swarovski arrest, an arrest involving neither the rev-

enue nor the narcotics laws. (In those two areas only, Con-

4

gress had authorized Customs agents to make arrests with-

out warrants but upon probable cause.) Having agreed

upon this proposition, the district court and the circuit

court each turned to New York State’s citizens’ arrest

statute to see whether the arrest might nevertheless be

saved as such a citizens’ arrest. Although the district court

had held that it could not be (and the circuit court reversed

this ruling), the district court was not weighing a violation

of state law—as the Government now contends (Gov’t. br.,

p. 5, at note 4)—but was questioning whether this particu-

lar federal arrest, otherwise unlawful, might be salvaged

under state law. It has long been clear, under Wong Sun

v. United States, 371 U.S. 471, 9 L.Ed.2d 441 (1963), reaf-

firmed in Brown v. Illinois, 422 U.S. 590, 45 L.Ed.2d 416

(1975), that the fruit of an illegal arrest must be sup-

pressed. And the Government’s attempted distortion of

what happened here, transmuting it into a simple ‘‘ violation

of a state statute’’ by United States Customs agents, should

not be permitted to obscure and vitiate constitutional prin-

ciples. If the district court were correct, the Customs

agents arrested Manfred Swarovski in violation of his

Fourth Amendment right against an unlawful seizure of his

person. The issue of the constitutionality of the arrest,

and the propriety of suppression if the arrest was an un-

authorized one, cannot be avoided by the Government’s

twisted use of terminology.

3. The Government also tries to reduce the instant

petition to one merely involving an interpretation of state

law (Gov’t. br., pp. 5-6). In this treatment, the Govern-

ment errs in two regards.

more

5

First, it errs in urging that the federal court of appeals’

decision, that the term ‘‘felony’’ as used in New York

State’s citizens’ arrest law, correctly referred to federal

as well as state felonies (Gov’t. br., pp. 5-6). This conclu-

sion by the Government (and the court of appeals) is

contravened by the line of cases urged in petition (at p.

14). Moreover, the very recent case of In the Matter of

Chu, 42 N.Y.2d 490, decided October 13, 1977—after the

instant petition for a writ of certiorari was filed—by New

York State’s highest court, underscores that when New

York’s statutes use the word ‘‘felony’’ they do not invari-

ably mean federal as well as state felonies. Dealing with

a disbarment situation,* New York State’s highest court’s

majority noted:

‘¢ .. [Wle now perceive little or no reason for distin-

guishing between conviction of a Federal felony and

conviction of a New York State felony as a predicate

for professional discipline. Certainly is this so when,

as here, there is a New York State felony and substan-

tially the same elements ....

‘* Additionally in the present instance there is a

very close, if not a precise, parallelism between the

conduct proscribed by Section 1001 [the federal stat-

ute] and that proscribed by Section 175.35 [the state

statute] .... The core of the offense under both

statutes is the wilfull filing in a governmental office

of a false statement knowing it to be false. In the pres-

ent case we hold that such matching suffices.’’ See 42

N.Y.2d at 94. (emphasis supplied)

* Respectfully, we submit that there are more compelling reasons

to use the term “felony” quite broadly when considering disbarment,

than when considering how broad should be the authority of citizens

to arrest other citizens.

6

That the term ‘‘felony’’ as used in New York State law,

does not embrace federal felonies wnless they have parallels

in the state law was further underscored by the three state

high court concurring judges. Starting their brief con-

currence, they said:

‘*We agree with the majority that the parallels be-

tween the elements of the Federal felonies in issue in

this case are so similar to their New York State anal-

ogues that automatic disbarment is an appropriate

result under our Judiciary Law. But in so doing, we

assume that the majority did not intend to imply that

all felony convictions in Federal courts would necessar-

ily dictate the same result.’’ See 42 N.Y.2d at 495.

Second, we recognize (with the Government) that or-

dinarily this Court should not review that which is, at most,

a question of State law. But, as urged in the petition

(pages 12-17), the instant misinterpretation is of a citizens’

arrest statute with counterparts in the laws of many states

-—which misinterpretaltion viliates a congressionally vm-

posed limitation upon United States Customs agents—and

so the matter before this Court is not ‘‘at most, a question

of state law’’ (Gov’t. br., p. 6). It is appropriate for this

Court to consider whether a typical state citizens’ arrest

statute is to be subjected to so strained an interpretation

that it will emasculate, through much of the United States,

a congressional limitation upon the arrest authority of fed-

eral agents, a limitation which this Court had recently un-

derscored in United Staivs v. Watson, 423 U.S. 411, 416,

46 L.Ed.2d 598, 604-05 (1976).

4. Lastly, we note that the Government’s brief seems

to seek to mislead this high Court in several other respects.

ia i

7

(a) Although the Government’s brief had earlier (p. 3)

noted that Mr. Swarovski—when initially apprehended by

the Customs agents—promptly responded to the first ques-

tions placed to him, the Government (br., p. 6) conjures up a

gulf of time between the J.F.K. Airport searches of Mr.

Swarovski’s luggage and his interrogation. Shortly after

Customs Agent Fish had covertly searched Mr. Swarovski’s

checked luggage, in the Pan Am checked baggage area, the

Petitioner was stopped by Customs agents, deprived of his

boarding pass, passport and baggage checks, and imme-

diately questioned concerning items that he might have had

with him. Clearly, the Government intends to use this in-

terrogation upon trial. Immediately thereafter, Mr. Swa-

rovski was confronted with the baggage that the agent had

previously searched, and when a fresh ‘‘search’’ in Mr.

Swarovski’s presence (not unexpectedly) yielded the cam-

era, he was immediately questioned further. That further

questioning, that started in the J.F.K. terminal, continued

into the evening at the nearby United States Customs Serv-

ice office. Respectfully, under Brown v. Illinois, 422 U.S.

590, 45 L.Ed.2d 416 (1975), there aa be no doubt that such

questioning was the fruit of the searches.

(b) The Government suggests that the ‘‘border search’’

authority is clearly applicable to export searches (Gov’t.

br., p. 7, first paragraph of n.8). Although the ninth cir-

cuit did suggest that, under the circumstances presented in

United States v. Stanley, 545 F.2d 661 (9th Cir. 1976),

it might properly so apply, this Court has never so ruled.

Indeed, if it is now the Government’s position that the

‘border search’’ exception—that deviates from general

Fourth Amendment protections—should apply generally to

8

export situations* it is appropriate that a ruling of such

breadth be made by this Court, and not simply accepted as

‘‘the law’? because for the moment the Government finds it

tactically sound to so urge.

(c) The Government also suggests that ‘‘exigent circum-

stances’’ justified the search of Mr. Swarovski’s luggage.

As the Government was aware of Mr. Swarovski’s inten-

tion to leave the United States with the camera for at least

some days before he was arrested (Gov’t. br., pp. 2-3), and

vet the Government never sought a search warrant, we

cannot comprehend the Government’s present ‘‘exigent

circumstances’? claim. Chief Justice Burger, concurring

recently in G.M. Leasing Corp. v. United States, 429 U.S.

338, 50 L.Ed.2d 530 (1977), noted that when ‘‘agents delay

after observing... highly suspicious events”’’ the ‘‘exigent

cireumstances’’ exception to the search warrant require-

ment is unavailable to them.

(d) Lastly, without the entire suppression hearing rec-

ord before this Court at this time, the Solicitor General’s

brief sugggests that Agent Fish’s search had not been

‘‘kept seeret’’ from the Assistant United States Attorney

(Gov’t. br., last paragraph of footnote, p. 8). At the sup-

pression hearing, conducted in October 1976, although Agent

Fish stated that he had searched the Swarovski baggage

in the Pan Am baggage area shortly before Mr. Swarovski’s

arrest, and stated he had so informed other Customs

agents, his immediate superior (as of April 1975 at J.F.K.)

denied having been so informed, as did their other col-

* Obviously, ordinarily import situations, in which daily large

scale enforcement of the revenue laws are involved, and export situ-

ations, in which ordinarily there is no need for monitoring, are gen-

erally quite different.

9

leagues ; the United States Attorney, in colloquy, indicated

that he learned of the search from the agent that morning

(in October 1976), although the search had been made

in April 1975. Therefore, the Fish search had apparently

either been ‘‘kept secret’’ for a year and a half, as the

petition states, or there was a fair amount of unexplained

dishonesty on the part of the United States Customs agents

who participated in the suppression hearing.

What is here relevant is that whether or not the Fish

search was furtive, or otherwise unlawful, was not consid-

ered by the court of appeals, which had ruled that all ‘‘argu-

ments ... concerning the legality of the [luggage] search

. are not independent grounds supporting the district

court’s suppression... .’’ The petition suggests that the

instant case presents this Court with the opportunity of

informing those concerned with federal criminal justice

in America just what must be considered by our United

States courts of appeal when the Government appeals from

an adverse suppression determination,

This reply brief has sought to dispel some of the mis-

conceptions that may have been introduced through the

Government’s opposition to the grant of the petition. So

doing, we hope we have not so focused upon the ‘‘trees’’ as

to cause sight of the ‘‘forest’’ to have been lost.

Essentially, the instant case, in its present posture, is

ideally suited for the Supreme Court to provide guidance

concerning the scope and impact of an appeal by the Gov-

ernment from a suppression order. This Swarovski case

also presents an opportunity for this Court to rule whether

10

state citizens’ arrest provisions, found so commonly in

American law, are to be so strained as to confer upon

federal agents arrest authority that the Congress has seen

fit to deny them.

Conclusion

For all the reasons urged in the petition, and further

considered in this brief, we respectfully submit that

Manfred Swarovski’s petition for a writ of certiorari

should be granted.

Respectfully submitted,

Ricuarp H. Kuz

Attorney for Petitioner

800 Third Avenue

New York, New York 10022

Dated: New York, N. Y.

January 19, 1978