Opposition — Griffin v. United States

Sones tot |

FILED

APR 15 1978

No. 77-1128

Iu the Siypreme Court of the United States

OCTOBER TERM, 1977

THOMAS BIGGS GRIFFIN III and

ANTOINETTE LOUISE GRIFFIN, PETITIONERS

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

WADE H. McCREE, JR.,

Solicitor General,

BENJAMIN R. CIVILETTI,

Assistant Attorney General,

JEROME M. FEIT,

KATHERINE WIN FREE,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

INDEX

Page

ee

Jurisdiction

Question presented -

Statement _

Argument

an wo —

Conclusion ‘eae ees SNe Shae Sot 12

CITATIONS

Cases:

Abel v. United States, 362 U.S. 217. 8

Chambers v. Maroney, 399 U.S. 42 _ 11

Chimel v. California, 395 U.S. 752 ) 8

Draper v. United States, 358 U.S. 307. 8

United States v. Berry, 560 F.2d 861, va-

cated as improvidently rendered, C.A.

7, No. 76-2014, January 31, 1978 _. 10, 11

United States v. Cepulonis, 530 F.2d 238,

certiorari denied, 426 U.S. 908 __ 9

United States v. Chadwick, 433 US. 1 6, 8, 9,10

United States v. Eatherton, 519 F.2d 603,

certiorari denied, 423 U.S. 987 ..._— )

United States v. Edwards, 415 U.S. 800 8

United States v. Frick, 490 F.2d 666, cer-

tiorari denied sub nom. Petersen v.

United States, 419 U.S. 831

United States v. Giles, 536 F.2d 136

United States v. Gill, 555 F.2d 597

United States v. Lewis, 556 F.2d 385,

certiorari denied, No. 77-431, desanaied

% jeeeeeeeennes DSRS ERAN Compe 9

oo oO

Il

Cases—Continued

United States vy. Mehciz, 437 F.2d 145,

certiorari denied, 402 U.S. 974

United States v. Montgomery, 558 F.2d

311, certiorari denied, No. 77-5205, Oc-

tober 31, 1977 .

United States v. Peltier, 422 U. Ss. 531

United States v. Prince, 548 F.2d 164

United States v. Reda, 563 F.2d 510, pend-

ing on a petition for a writ of certio-

rari, No. 77-5995

United States v. Robinson, 414 U. S. 218

Williams v. United States, 401 U.S. 646

Constitution and statutes:

United States Constitution, Fourth

Amendment

18 U.S.C. 2 __.. a

18 U.S.C. 924(c)(2) _.

18 U.S.C. App. 1202(a) (1)

21 U.S.C. 841(a) (1)

12

2, 8, 12

’

2

2,

Do Co Ww

Iu the Supreme Court of the United States

OCTOBER TERM, 1977

No. 77-1128

THOMAS BIGGS GRIFFIN III and

ANTOINETTE LOuiSE GRIFFIN, PETITIONERS

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. B)

is not yet reported. The opinion of the district court

(Pet. App. A) is reported at 413 F.Supp. 178.

JURISDICTION

The judgment of the court of appeals was entered

on November 7, 1977. A petition for rehearing was

denied on December 12, 1977 (Pet. App. C). On

(1)

2

January 10, 1978, Mr. Justice Stewart extended the

time for filing a petition for a writ of certiorari

to and including February 10, 1978 (Pet. App. D),

and the petition was filed on that date. The jurisdic-

tion of this Court is invoked under 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether the warrantless search of a garment bag

and of petitioners’ automobile violated the Fourth

Amendment.

STATEMENT

After a jury trial in the United States District

Court for the Eastern District of Michigan, peti-

tioner Antoinette Griffin was convicted on two counts

of possession of heroin and cocaine with intent to dis-

tribute, in violation of 21 U.S.C. 841(a)(1) and

18 U.S.C. 2 (Pet. App. 25). Petitioner Thomas Grif-

fin was convicted at the same trial on four counts of

possession of heroin and cocaine with intent to dis-

tribute, in violation of 21 U.S.C, 841(a)(1) and 18

U.S.C. 2; of carrying a firearm during the com-

mission of a felony, in violation of 18 U.S.C. 924

(c)(2); and of possession of a firearm by a con-

victed felon, in violation of 18 U.S.C. App. 1202(a)

(1).’ Antoinette Griffin was sentenced to concurrent

Thomas Griffin was acquitted on another count of posses-

sion of heroin with intent to distribute, in violation of 21

U.S.C. 841(a) (1). Co-defendant Linda Rue Jackson was

acquitted on Counts 1 and 2, charging possession of heroin

and cocaine, respectively, with intent to distribute, in violation

of 21 U.S.C. 841(a) (1) (see Pet: 5).

3

terms of five years’ imprisonment on each count.

Thomas Griffin was sentenced to concurrent terms

totaling ten years’ imprisonment and three years’

special parole on the possession charges and on the

charge of violating Section 1202(a)(1), plus a con-

secutive term of two years’ imprisonment on the

charge of violating Section 924(c)(2). The court of

appeals affirmed (Pet. App. B).

The evidence showed that on June 12, 1975, An-

toinette Griffin entered a security checkpoint at the

Detroit Metropolitan Airport with a gold garment

bag and a gold tote bag (S.H. 29; Tr. 48-49, 87).’

When an X-ray scan revealed a solid mass in the

bottom of the tote bag, a security officer opened the

bag and discovered a large sum of currency wrapped

in a white towel (S.H. 29-30; Tr. 49-50, 53-58).

The officer contacted Special Agent Paul Markonni

of the Drug Enforcement Administration and de-

scribed petitioner Antoinette Griffin and her lug-

gage to him (S.H. 33, 59; Tr. 64, 87). Investigating

further, Agent Markonni learned that the name on

Antoinette Griffin’s luggage was different from “M.

Hood,” the name in which her airline ticket had been

purchased (S.H. 59-61; Tr. 89-90). After Antoinette

Griffin boarded a flight to Los Angeles, Agent Mar-

konni made arrangements for surveillance of her in

California (S.H. 62; Tr. 93). Upon arrival] there,

she was observed being met by five known narcotics

traffickers (S.H. 63).

2 “S.H.” refers to the transcript of the suppression hearing.

4

At approximately 12:30 a.m. on June 15, 1975,

Agent Markonni was alerted by American Airlines

that a “V. Hood” was scheduled to return to Detroit

from Los Angeles early that morning (S.H. 69-70).

Accordingly, Agent Markonni and two officers went

to the airport, where they observed petitioner Thomas

Griffin and co-defendant Linda Jackson in the gate

area where the Los Angeles flight was to arrive (S.H.

71-73; Tr. 102-103). At about 3:10 a.m., petitioner

Antoinette Griffin disembarked (S.H. 73; Tr. 103,

105). After briefly embracing Thomas Griffin, she

entered a nearby restroom, as did Jackson (S.H. 74;

Tr. 103-104).° Several minutes later, Antoinette Grif-

fin rejoined Thomas Griffin, and together they went

to another area of the terminal (S.H. 75, 81; Tr. 104-

105).

Meanwhile, Jackson proceeded from the restroom

to the baggage claim area (S.H. 81-83; Tr. 106-107).

Agent Markonni observed among the luggage from

the Los Angeles flight a gold garment carrier that

appeared to be the same as the one taken to Cali-

fornia by Antoinette Griffin; none of the other bag-

gage was similar (S.H. 85; Tr. 107). The bag was

retrieved and placed on a cart by a skycap who

spoke with Jackson (S.H. 85-86; Tr. 107-108). Agent

Markonni thereupon directed an officer to maintain

surveillance of Jackson, while he and the other of-

ficer looked for petitioners, who, in the meantime,

* Although Jackson had been in the gate area when peti-

tioner Antoinette Griffin’s flight arrived, she did not meet

any incoming passengers (S.H. 141-142).

5

had left the terminal (S.H. 86; Tr. 109). Agent

Markonni apprehended petitioners in an automobile

as they attempted to drive away (S.H. 87; Tr. 110-

112), and he escorted them back into the terminal

(S.H. 88; Tr. 112-113). Once inside, Agent Mar-

konni approached Jackson, identified himself, and

seized the clothing bag from the skycap’s cart, which

was approximately five feet away from Jackson (S.H.

89, 163; Tr. 113). The skycap stated that Jackson

had given him the claim check for the bag (S.H.

166-169). Petitioners and Jackson were then taken

into an office behind the baggage area, where Agent

Markonni opened the garment bag and found sub-

stantial quantities of heroin and cocaine (S.H. 90-

91; Tr. 114-116, 450-452). Shortly thereafter peti-

tioners’ automobile, which had been moved to the

airport parking lot, was searched (S.H. 93; Tr.

248). Concealed underneath the front seat were a

pistol and a wallet containing cocaine and heroin

(S.H. 93; Tr. 180-181, 187, 249-250, 315-316, 461-

463).‘ Heroin was also discovered in an unlocked

suitcase on the rear seat of the vehicle (S.H. 93; Tr.

164, 336, 458-459).

ARGUMENT

Petitioners contend (Pet. 6) that there was no

probable cause to arrest Linda Jackson or to be-

* The wallet also contained identification of Thomas Griffin

(G. Exh. 11-A). Thomas Griffin was a convicted felon and not

licensed to carry the firearm, which was manufactured out-

side the State of Michigan (G. Exhs. 13-15).

6

lieve that the automobile contained contraband (Pet.

9). They also contend that even assuming the exist-

ence of probable cause, the warrantless searches of

the garment bag and of the automobile and its con-

tents were invalid under United States v. Chadwick,

433 U.S. 1.

After a thorough review of the record, the district

court concluded that Agent Markonni had probable

cause to arrest Antoinette Griffin and Jackson and

to believe that narcotics would be found in both the

garment bag and the automobile’ (S.H. 181-185;

Pet. App. 15, 20), and the court of appeals affirmed

(Pet. App. 25-26). There is no reason for further

review by the Court.

1. The arresting agent knew that petitioner An-

toinette Griffin, who was carrying a very large sum

of money in her luggage, had made a short trip to Los

Angeles, which he knew to be a principal point of

distribution for illicit narcotics that had been com-

ing into Detroit, and had been met in Los Angeles

by known narcotics traffickers (S.H. 54). He knew

that the name on petitioner’s luggage did not match

the name in which her ticket had been purchased.

Immediately after she returned to Detroit she en-

tered a restroom, Jackson, who had been at the gate

when the flight arrived at about 3:00 a.m. but had

° The court found that while Agent Markonni initially lacked

probable cause to arrest Thomas Griffin (S.H. 182), all the

evidence admitted against him had been seized pursuant to

the valid arrests of Antoinette Griffin and Jackson and the

lawful search of the automobile (Pet. App. 20-24).

7

met no passengers, entered the restroom simultane-

ously. Jackson then proceeded to the baggage claim

area, and Antoinette Griffin rejoined Thomas Griffin,

with whom she left the area. At the claim area, Jack-

son had a conversation with a skycap, who then re-

trieved a gold garment bag—the only one of its kind

among the luggage from the Los Angeles flight—that

appeared to be the same as the one taken to Los

Angeles by Antoinette Griffin. At approximately that

time, petitioners left the terminal. As the district

court described the situation (S.H. 181):

It has all of the earmarks of a typical mule op-

eration right then and there, no question about it.

* * * * *

On the overall picture [Agent Markonni] had

every reason to believe and he had probable cause

to believe that [petitioner Antoinette Griffin] left

Detroit with a large sum of money to purchase

narcotics, that she came back with the narcotics

and there was a very, very subtle effort to pass

her suitcase probably containing narcotics on

to [Jackson] with whom she was working in

concert and whom she had contact or at least

the possibility of contact within the privacy of

the ladies’ room.

In these circumstances, Agent Markonni had ex-

ceptionally strong probable cause to believe that peti-

tioner Antoinette Griffin had obtained narcotics in

California and then made a delivery to Linda Jack-

son at the airport. This being so, it followed that

illicit drugs would likely be found in the gold garment

8

bag, as well as in the automobile in which Antoinette

Griffin had attempted to leave the airport. Agent

Markonni thus had probable cause to arrest Jackson,

and the search of the garment bag was properly

made incident to that arrest. Additionally, the trial

court properly determined that the subsequent war-

rantless search of the automobile was also constitu-

tionally permissible, since the officers had probable

cause to believe that it contained contraband.

2. Nothing decided in United States v. Chadwick,

supra, requires a different result. In Chadwick, this

Court held that federal law enforcement agents who

had arrested several suspects, seized a locked foot-

locker, and 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 “ex-

clusive dominion” over it, and arrested its owner,

there was no exigency requiring an immediate search,

nor was any other recognized exception to the warrant

requirement applicable, and a warrantless search was

therefore unreasonable (433 U.S. at 11-16).

a. Chadwick did not purport, however, to alter

the settled Fourth Amendment rule permitting war-

rantless searches of the arrestee and of the area

within his immediate control incident to a custodial

arrest. See United States v. Edwards, 415 U.S. 800,

802-803; United States v. Robinson, 414 U.S. 218,

236; Chimel v. California, 395 U.S. 752, 763; Abel

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

States, 358 U.S. 307, 314. On the contrary, the Court

observed in Chadwick that “[w]hen a custodial ar-

rest is made, there is always some danger that the

person arrested may seek to use a weapon, or that evi-

dence may be concealed or destroyed” (433 U.S. at

14), 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 14-15). Here the

garment bag, which was not locked, was within the

area of Jackson’s immediate control; although the

bag was on the skycap’s cart, it was no more than

five feet from Jackson and readily accessible to her

(S.H. 161, 163). The bag was searched as soon as

the officers escorted Jackson and petitioners to an

office behind the baggage area, moments after Jack-

son was arrested. Accordingly, the search was prop-

erly conducted without a warrant as an incident to

and essentially contemporaneous with Jackson’s ar-

rest. See United States v. Lewis, 556 F.2d 385, 388

(C.A. 6), certiorari denied, No. 77-431, January 9,

1978; United States v. Gill, 555 F.2d 597, 599 (C.A.

6); United States v. Prince, 548 F.2d 164, 165 (C.A.

6); United States v. Giles, 5386 F.2d 136 (C.A. 6);

United States v. Cepulonis, 530 F.2d 238, 242 (C.A.

1), certiorari denied, 426 U.S. 908; 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), certiorari denied sub

nom. Petersen v. United States, 419 U.S. 831; United

10

States v. Mehciz, 487 F.2d 145, 146-148 (C.A. 9),

certiorari denied, 402 U.S. 974.°

b. Nor is there anything in Chadwick that would

invalidate the search of the automobile and its con-

tents in this case. Indeed, Chadwick itself reaffirmed

that this Court has long “recognized significant dif-

ferences between motor vehicles and other property

which permit warrantless searches of automobiles in

circumstances in which warrantless searches would

not be reasonable in other contexts.” 433 U.S. at 12.

Although this distinction “has been based in part on

[an automobile’s] inherent mobility, which often

makes obtaining a judicial warrant impracticable,”

it has also been based upon “the diminished expecta-

tion of privacy which surrounds the automobile”

(ibid. ).

Unlike the instant case, Chadwick did not involve

the automobile exception to the warrant requirement.’

There the search of the double-locked footlocker was

conducted at the offices of the Drug Enforcement

Administration an hour and a half after the defend-

ants had been arrested elsewhere for possession of

® Petitioners contend (Pet. 8) that the decision below con-

flicts with United States v. Berry, 560 F.2d 861 (C.A. 7),

which held that the warrantless search of a briefcase carried

by an arrestee was invalid under Chadwick. That decision,

however, has been vacated as improvidently rendered (C.A.

7, No. 76-2014, decided January 31, 1978). The court on re-

consideration affirmed the conviction, ruling that Chadwick

would not be accorded retroactive effect.

’ As the Court noted, the government did not contend that

“the footlocker’s brief contact with Chadwick’s car makes

this an automobile search * * *.” 433 U.S. at 11.

11

contraband. At the time of the search, the footlocker

was securely in the exclusive control of the law en-

forcement officers, and it was conceded that there

was “no risk that whatever was contained in the foot-

locker trunk would be removed by the defendants or

their associates.” 433 U.S. at 4. Here, as the court

of appeals noted (Pet. App. 27), the search of the

petitioners’ automobile and the unlocked suitcase on

the rear seat “did not take place in the relative secu-

rity of a federal building, as in Chadwick, but rather

occurred outdoors on the premises of a busy metro-

politan airport” approximately an hour after peti-

tioners’ arrest (Tr. 254-255, 283-288). Although the

vehicle had been moved from the street to a parking

lot and locked (Tr. 277-279, 283-285), the parking

lot was accessible to the public (Tr. 255-256, 288-

289). In these circumstances, it was reasonable for

the officers to conduct a probable cause search with-

out a warrant. Chambers v. Maroney, 399 U.S. 42,

48-52.

c, Even if Chadwick were deemed to alter prior law

relating to searches incident to arrest and automo-

bile searches, it should not be given retroactive ap-

plication to searches occurring prior to the time it

was decided. Three Circuits have already so held.

See United States v. Berry, supra, slip. op. 2-3;

United States v. Reda, 563 F.2d 510, 512 (C.A. 2),

pending on a petition for a writ of certiorari, No.

77-5995; United States v. Montgomery, 558 F. 2d

311, 312 (C.A. 5), certiorari denied, No. 77-5205,

October 31, 1977. These cases are wholly consistent

12

with the approach this Court has taken to the retro-

activity of Fourth Amendment rulings generally.

See, e.g., United States v. Pe ‘ier, 422 U.S. 531;

Williams v. United States, 401 U.S. 646, 653-655.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

WADE H. MCCREE, JR.,

Solicitor General.

BENJAMIN R. CIVILETTI,

Assistant Attorney General.

JEROME M. FEIT,

KATHERINE WINFREE,

Attorneys.

APRIL 1978.

W ov. S. GOVERNMENT PRINTING OFFice, 1978 259361 113