Opposition — Thomas v. United States

MICHAEL RODAK, JR., CLERI

No. 77-1 148

In the Supreme Court of the Hnited States

OCTOBER TERM, 1977

ROOSEVELT THOMAS, PETITIONER

a

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

Wave H. McCree, Jr.,

Solicitor General,

JOHN C. KEENEY,

Acting Assistant Attorney General,

JEROME M. FEIT,

ANDREW S. GORDON,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

In the Supreme Court of the Hnited States

OcTOBER TERM, 1977

No. 77-1448

ROOSEVELT THOMAS, 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 memorandum opinion of the court of appeals (Pet.

App. i-vi) is not reported.

JURISDICTION

The judgment of the court of appeals was entered on

March 15, 1978. The petition for a writ of certiorari was

filed on April 11, 1978. The jurisdiction of this Court is

invoked under 28 U.S.C. 12541).

QUESTION PRESENTED

Whether the district court properly denied petitioner's

motion to suppress evidence seized from his automobile.

(1)

STATEMENT

Following a jury-waived trial in the United States

District Court for the Southern District of California,

petitioner was convicted of conspiracy to possess heroin

with intent to distribute (21 U.S.C. 846) and possession of

heroin with intent to distribute (21 U.S.C. 841l(a)(1)) (IV

R. 62).! He was sentenced to a concurrent term of ten

years’ imprisonment and ten years’ special parole on each

count (II R. 35). The court of appeals affirmed (Pet. App.

i-vi).

The evidence at trial showed that in January 1977

Agent Michael Groseclose of the Drug Enforcement

Administration received a report from customs agents

that on January 7 petitioner had entered the United States

from Mexico at Calexico, California, and had remarked

to customs inspectors that if they wished to follow him he

would be staying at the Holiday Inn in El Centro,

California, a town near the Mexican border. Agent

Groseclose thereafter spoke with other D.E.A. agents and

learned that petitioner had been in the El Centro area

twice in the previous two months, and he discovered from

a review of the D.E.A. files that a suspect in another case

had named petitioner as the recipient of 15-20 kilograms

of heroin from the suspect’s husband each month. In

addition, Agent Groseclose obtained copies of the toll

records for petitioner's home telephone, which revealed

that petitioner's monthly bill was between $300 and $400

and that several of the numbers called were associated

with known heroin traffickers in California, Florida, and

'™R.” refers to the record in the court of appeals. Co-defendant

Ernest Slocum was convicted only on the conspiracy charge. Slocum

also has filed a petition for a writ of certiorari (No. 77-6432), which

raises a wholly unrelated claim.

Pan

Georgia. The telephone records showed calls between

January 7 and I! to the El Dorado and Easy Night

Motels in El Centro (III R. 4-9).

On February 27, 1977, Agent Groseclose was told by

a confidential informant that petitioner again was in the

E! Centro area. The agent checked the El Dorado Motel,

determined that petitioner had registered there, and began

a surveillance. Shortly thereafter petitioner left the motel,

drove about a mile to a public telephone and made a call

(although there were public telephones at the motel and a

private phone in each motel room), visited two stores

(both times leaving without a package), and then returned

to the motel (III R. 9-12, 51-52).

At approximately 11:00 a.m. on February 27, petitioner

and co-defendant Slocum checked out of the motel and

proceeded east on Interstate 8 at 2 speed of 40-45 miles

per hour in a 55 m.p.h. zone. After about 15 miles, their

car pulled off the road and parked in a gas station, from

which the two men scanned the eastbound traffic. Fifteen

minutes later, petitioner and Slocum returned to the

highway and again proceeded east, next stopping at a rest

area 12-15 miles west of Yuma, Arizona. Once more the

car was parked in such a way as to give the men a view of

the eastbound traffic. Petitioner and Slocum remained at

the rest area for 45 minutes, although neither used the

restroom. They then continued on to Yuma (III R. 12-15,

53-54).

Upon arriving in Yuma, petitioner and Slocum drove in

a circuitous route before eventually stopping at a park,

where they remained for 30-45 minutes. Next the men

went to a shopping center, where petitioner entered a

2Agent Groseclose testified that he believed these stops were made

for the purpose of detecting surveillance (Ill R. 16).

4

department store and returned a few minutes later with a

brown paper bag. From there they drove to another

shopping center, where petitioner again visited several

stores in a short period of time. Petitioner and Slocum

then returned to the department store and parked in the

rear of the store near a car bearing Mexican license plates.

As one of the agents approached the car to get a better

view, he observed a male Mexican walking away from the

car (III R. 15-19, 54-59).

A few minutes later, petitioner and Slocum drove back

to the highway and headed west toward El Centro at a

speed of 55-60 m.p.h. Throughout the return trip Slocum

drove the car and petitioner slouched down in the rear

seat. After the car left the highway at El Centro, it

stopped and petitioner piaced a pink bag into the trunk

and got into the front seat (II1 R. 19-20, 59-60).

Agent Groseclose and Agent John Pulley determined

to stop petitioner's car a short while later. Prior to the

stop, but after the agents had turned on their red light

and siren, Agent Groseclose observed petitioner making

movements in the middle of the front seat. The agent

walked to the car, identified himself, told petitioner and

Slocum that he was investigating possible narcotics

smuggling, and asked the men to step out of the car. In

response to Agent Groseclose’s questions, petitioner

stated that he was coming from El ,Centro, that he was

going to visit his aunt, and that he ‘was not sure of the

identity of his companion. Agent Pulley then questioned

Slocum, determined that the car belonged to him, and

obtained his consent to search the vehicle.’ Agent

sAgent Pulley’s testimony regarding his colloquy with Slocum was

as follows (III R. 75-76):

Q. What, if anything, did you say to Mr. Slocum?

A. | asked him to step out of the car, and he did. We walked

back to the back of his car, and | identified myself with my

credentials, and told him we were conducting a narcotic

Groseclose also asked petitioner if he would consent to

a search; petitioner responded that it was Slocum’s car

and that if Slocum did not object to a search neither

did he (Il R. 21-23, 60-61, 74-76).

A search of the front seat of the car revealed a film

cannister that smelled of acetic acid or heroin and a small

quantity of brown powder that appeared to be heroin.

Petitioner and Slocum were then arrested and advised of

their constitutional rights. A search of the trunk of their

automobile produced a pink bag containing two packages

of heroin (Ill R. 23-24, 27, 77-78).

ARGUMENT

1. Relying on United States v. Chadwick, 433 U.S. 1,

petitioner contends (Pet. 6-7) that the search of the bag

found in the trunk of the car violated the Fourth

Amendment. In Chadwick, this Court held that federal

law enforcement agents who had arrested several suspects,

seized a locked footlocker, and transported it to the

agents’ offices, were required to obtain a warrant before

searching its contents. The Court concluded that once the

agents had seized the footlocker, gained “exclusive

dominion” over it, and arrested its owner, there was no

exigency requiring an immediate search, nor was any

investigation. | asked him whose car it was. He said it was his. |

had heard a vehicle registration check earlier in the day, and it

was my understanding the vehicle was registered to someone else.

| asked him, did he own the car, and he said, “Yes.” And | asked

him, did he recently purchase it, and he said, “Yes.” | asked him

if he had any contraband in the car, and he said, “No.” And I

said, “Well, I'd like to ask permission to search the car.” I said,

“But you are not required to permit me to search,” and | said,

“You have the alternative to deny me permission to search.” And

he said, “No, go ahead and search it if you want to.”

6

other recognized exception to the warrant requirement

applicable, and a warrantless search was_ therefore

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

Chadwick, however, did not purport to alter the settled

rule permitting a warrantless search with the consent of a

person having a sufficient relationship to the premises or

effects sought to be searched. See United States v.

Matlock, 415 U.S. 164, 171. On the contrary, the Court

emphasized in Chadwick that no consent to search had

been obtained in that case (433 U.S. at 4). Here, by

contrast, both courts below found that petitioner and

Slocum voluntarily consented to the search of the car, a

finding amply supported by the evidence and, indeed, one

that petitioner does not dispute. In light of this consent,

the agents were permitted to open the trunk of the car and

to search the contents of the pink bag. See United States

v. Matlock, spra, 415 U.S. at 166; United States v.

Carter, 569 F 2d 801, 804 (C.A. 4) (collecting cases).4

2. Petitioner suggests (Pet. 7-8) that the agents arrested

him without probable cause when they stopped his

vehicle. This claim is insubstantial. Law enforcement

officers may stop an automobile to question its occupants

without effecting an arrest. United States v. Brignoni-

Ponce, 422 U.S. 873, 884; Terry v. Ohio, 392 U.S. 1.

Here, the agents plainly had a reasonable suspicion that

criminal activity was afoot. Moreover, there was

testimony that petitioner and Slocum were free to leave

‘The search of the trunk also was permissible under the

“automobile search exception” to the warrant requirement. See

United States v. Chadwick, supra, 433 U.S. at 12; Chambers .

Maroney, 399 U.S. 42. The agents had probable cause to believe thi:

the trunk contained contraband, since they had already found heroin

in the front seat and had seen petitioner place the pink bag in the

trunk under suspicious circumstances. See also 2! U.S.C. 881.

AS SS

Oe

prior to the search (III R. 68). Accordingly, the court of

appeals correctly concluded that “the conduct of the

agents did not constitute an arrest” (Pet. App. v). Cf.

Pennsylvania v. Mimms, No. 76-1830, decided December

5, 1977.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

WapDE H. McCree, JR.,

Solicitor General.

JOHN C. KEENEY,

Acting Assistant Attorney General.

JEROME M. FEIT,

ANDREW S. GORDON,

Attorneys.

May 1978.

DOJ-1978-03