# Opposition — Bracy v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1978
- **Citation:** 435 U.S. 965

## Text

INDEX

Page
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CITATIONS
Cases:
Blumenthal vy. United States, 332 U.S. 539 ....... 11
Brown v. United States, 411 U.S. 223 ........ 13, 14
Chambers v. Maroney, 399 U.S. 42. .......60...006 14
Kotteakos v. United States, 328 U.S. 750 .......... 12
Schneckloth v. Bustamonte, 412 U.S. 218 ......... 13
I EM, ssa so scennsnnsssssssvenect 14
United States v. Agurs, 427 U.S. 97 oo. 10
United States v. Baldarrama, 566 F. 2d 560 ..... 11
United States v. Basurto, 497 F. 2d 781 ............. 9
United States v. Bowers, 534 F. 2d '86,
certiorari denied, 429 U.S. 942 oo... eee 9
United States v. Canada, 527 F. 2d 1374,
certiorari denied, 429 U.S. 867 ........... 4, 13, 14
United States v. Davis, 482 F. 2d 893 «0.0.0.0... 13
United States v. Duvall, 537 F. 2d 1S ............... 15
United States vy. Guerrera, 554 F. 2d 987 .......... 13

Page
Cases—continued:
United States v. Guillette, 547 F. 2d 743,
certiorari denied, No. 76-6615 (October
5 2 eee Lee 4
United States v. Gurley, 549 F. 2d 809 .............. 3

United States v. James, 528 F. 2d 999,
certiorari denied sub nom. Henry v. United
FE OS OR il

United States v. Miner, 484 F. 2d 1075 ........... 13

United States vy. Prueitt, 540 F. 2d 995,
certiorari denied sub nom. Petersen
v. United States, 429 U.S. 1063 ..................... 13

United States v. Rundle, 383 F. 2d 421,
certiorari denied sub nom.
Almeida v. Rundle, 393 U.S. 863 .................0.. )

United States v. Tuley, 546 F. 2d 1264,
certiorari denied, No. 76-6380 (October
Ti GEUEE. ‘sidiekesseadnibhenesitietiiadenigeddtiaiasiimpeemadzanenecss 14

United States v. Welsh, C.A. 9, Nos.
75-3000 and 75-3001, decided May
i a te 4

United States v. Word, C.A. 9, No. 76-3487,
decided March 31, 1977, certiorari

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Statutes and rules—continued:

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Federal Rules of Criminal Procedure:
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In the Supreme Court of the United States

OCTOBER TERM, 1977

No. 77-1360

BoveR ALFREDO BrRACY and SANDRA DENISE MARTIN.
PETITIONERS

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 opinion of the court of appeals (Pet. App. 57a-77a)
is reported at 566 F. 2d 649.

JURISDICTION

The judgment of the court of appeals was entered on
December 23, 1977. A_ petition for rehearing and
suggestion for rehearing en banc was denied on February
28, 1978 (Pet. App. 78a-79a). The petition for a writ of
certiorari was filed on March 24, 1978. The jurisdiction
of this Court is invoked under 28 U.S.C. 1254(1).

(1)

QUESTIONS PRESENTED

|. Whether the trial judge erred in failing sua sponte to
declare a mistrial in order to dismiss the indictment when
he learned that a government witness committed perjury
before the grand jury.

2. Whether the evidence established multiple con-
spiracies rather than a single conspiracy.

3. Whether evidence seized from a co-conspirator’s
suitcase and incidental to petitioner Bracy’s arrest was
inadmissible.

STATEMENT

Following a jury trial in the United States District
Court for the Southern District of California, petitioners
were convicted of conspiring to import heroin and cocaine
and importing heroin, in violation of 21 U.S.C. 952, 960,
and 963; conspiring to possess heroin and cocaine with
intent to distribute and possessing the heroin with intent
to distribute, in violation of 21 U.S.C. 84l(a)(1), 846.
Petitioner Bracy (hereafter A. Bracy) was sentenced to 15
years’ imprisonment, to be followed by a 20-year special
parole term, and fined $25,000. Petitioner Martin was
sentenced to three years’ imprisonment, to be followed
by a special parole term of five years. The court of
appeals affirmed (Pet. App. 57a-77a).'

'Four other persons were indicted, and tried on all counts. Juanita
Louise Kendricks, petitioner A. Bracy’s mother, and Brenda Bracy,
petitioner A. Bracy’s sister, were tried jointly with petitioners.
Kendricks was acquitted. Brenda Bracy was convicted on all counts
and sentenced to five years’ imprisonment followed by a five-year
special parole term. The court of appeals affirmed. /bid. Stephanie
Marie Gurley (hereafter Gurley) and Jerry Word (hereafter Word)
were also convicted of the conspiracy and substantive counts follow-
ing separate trials. Gurley was sentenced to seven years’ imprison-
ment to be followed by a ten-year special parole term; Word was

Briefly, the government's evidence demonstrated the
existence of a continuing enterprise to smuggle heroin and
other illicit drugs across the Mexican border and
transport them to the Detroit, Michigan area. As the .
court of appeals observed, petitioner A. Bracy “was the
catalyst around whom the overall web of conspiracy was
spun” (Pet. App. 63a). Petitioner Martin, as well as
co-defendants Brenda Bracy, Gurley, Word, and several
other co-conspirators, were active participants in the
scheme. The nature and scope of the conspiracy was
established through evidence which showed the con-
spirators’ involvement in a series of related incidents
whose objective was the procurement, importation, and
transmission of heroin and cocaine.

1. On February 16, 1975, petitioner A. Bracy and
Margaret Canada approached a baggage-security check
point at the Detroit Metropolitan Airport. An airline
security guard placed Canada’s suitcase onto a conveyor
belt that led to an X-ray machine. Thereafter a second
security guard indicated that she would have to open it
for further visual inspection. A. Bracy asked “why,” and
the guard explained that she couldn't identify an object
inside. After waiting approximately five seconds without
hearing any objection from either A. Bracy or Canada,
the guard opened the suitcase and observed a large
amount of cash (I Tr. 81-91, 117, 133; Pet. App. 36a).?

sentenced to ten years’ imprisonment to be followed by a ten-year
special parole term. The court of appeals also affirmed these
convictions. United States v. Gurley, 549 F. 2d 809 (C.A. 9); United
States v. Word, C.A. 9, No. 76-3487, decided March 31, 1977,
certiorari denied, 43! U.S. 942.

*The abbrevation “Tr.” refers to the trial transcript and the
abbreviation “M. Tr.” refers to the motion transcript. The volume
number precedes the abbreviation, and the page number follows it.

4

Canada then boarded a plane bound for San Diego, Cali-
fornia, w.ch the suitcase. The guard reported her dis-
covery to a local Drug Enforcement Administration
(DEA) agent, who ran a routine check on petitioner A.
Bracy and found that he had a long history of narcotics
violations (11 M. Tr. 33).

After authorities in San Diego were notified, they
established surveillance on Canada. Canada was met at
the airport by Clarence Turner and Anne Welsh, and the
trio rented a room in San Diego. On the following
morning Turner and Welsh placed an empty duffel bag in
an automobile rented by Welsh and drove to Tijuana,
Mexico. When they returned, objects were clearly
discernible at the bottom of the duffel bag. Shortly after
their return to the motel, the duffel bag and the suitcase
in which Canada had transported the money from
Detroit were hurriedly placed in the trunk of the car.
Canada, Turner, and Welsh then drove north at a high
rate of speed. The automobile was stopped by surveilling
agents who asked Welsh whether she would object to a
search of the vehicle and its contents for contraband. She
replied, “No, 1 don’t.” During the ensuing search the

officers found four pounds of heroin and one pound of

cocaine in the suitcase (Il M. Tr. 135-165).

‘Canada, Turner, and Welsh were named in the indictment as
previously indicted co-conspirators (Pet. App. 10a). All three were
convicted of conspiracy to possess heroin and cocaine and of
possessing heroin and cocaine with intent to distribute them in
violation of 21 U.S.C. 841(aX 1), 846. Canada was sentenced to five
years’ imprisonment to be followed by a 15-year special parole
term. The court of appeals affirmed. United States v. Canada, 527 F.
2d 1374 (C.A. 9), certiorari denied. 429 U.S. 867. Welsh was
sentenced to three years’ imprisonment and Turner to five years’
imprisonment, both sentences to be followed by ten-year terms of
special parole. The court of appeals also affirmed these convictions.
United States vy. Welsh, C.A. 9, Nos. 75-3000 and 75-3001, decided
May 25. 1976.

2. Shortly before Christmas, 1975, James Howard
Porter, an unindicted co-conspirator (Pet. App. 9a) who
had been employed by petitioner A. Bracy, and one.
Lomas, who had been a construction supervisor at A.
Bracy’s home, established a residence in Los Angeles,
California. Early in 1976, A. Bracy visited their apartment
and gave Porter and Lomas money to buy undergarments
to conceal narcotics. When Lomas and Porter obtained
the clothing, all three went to San Diego, where Porter
rented a motel room. While Lomas remained in the room,
A. Bracy and Porter went to Tijuana (VI Tr. 915-919).
There they met Manuel Banagas (Manning) who was
given a briefcase by petitioner Bracy. Porter was
instructed to remain at the Tijuana Ramada Inn and give
a set of car keys to Manning upon his arrival (III Tr. 454-
458).

Afterwards, Porter returned to San Diego, where he
telephoned Lomas and was advised that Lomas, Brenda
Bracy, and her children would be traveling to San Diego.
Lomas instructed Porter to wait for Brenda Bracy in
Tijuana. Upon her arrival in Mexico, Brenda Bracy called
Manning, who came to her hotel room with the car keys
previously given him by Porter. Brenda Bracy then left
the room and returned with several bags of heroin and
cocaine mixed in two bags of baby clothing. Brenda Bracy
and Porter agreed that she would srauggle the heroin

across the border and he would cross with the cocaine
(L111 Tr. 459-464).

Brenda Bracy, Porter, and Lomas subsequently met in
Los Angeles and agreed that Porter should transport the
narcotics to A. Bracy’s home near Detroit. Porter
departed that night for Detroit but, upon arrival, became
suspicious that he would not be paid for his assistance in
the venture. He left the heroin and flew back to Los
Angeles keeping the cocaine as security. After he returned

to Los Angeles, Porter was questioned by petitioner
Martin, Brenda Bracy, and Canada as to his reasons for
retaining the cocaine, and they tried to convince him to
surrender it (III Tr. 466-478; Pet. App. 6la). He did
so only after being paid by petitioner A. Bracy (Ill Tr.
480; Pet. App. 61a).

4. In mid-March, 1976, Porter was contacted by
petitioner Martin and informed that A. Bracy was coming
to Los Angeles and wanted Porter to “do something for
him.” Both petitioners and Word met with Porter at his
apartment to organize the continuation of the smuggling
effort (111 Tr. 485-488; Pet. App. 61a). After Porter was
given money by A. Bracy to purchase a girdle for smug-
gling purposes, Porter left for Tijuana, Mexie~, where he
checked in at the Ramada Inn. Both petitioners and Word
subsequently arrived at the hotel restaurant, and Porter
gave his room number to them. Two hours later
petitioners and Word arrived at Porter's room bringing
two kilos of heroin. Porter was assigned to smuggle the
heroin across the border in his girdle and tried various
means of concealing the heroin on his person while both
petitioners commented upon whether it could be observed
under his clothing. Porter then flew back to Los Angeles
and returned to his apratment. A. Bracy arrived at
Porter's apartment, took the heroin, and paid Porter
$1,000 for his efforts (II] Tr. 490-498; Pet. App. 62a).

On March 20, 1976, A. Bracy again instructed Porter to
go to the Ramada Inn in Tijuana. Porter did so, but when
A. Bracy failed to arrive, he returned to Los Angeles (1V
Tr. 505-507; Pet. App. 62a). The same day Word, accom-
panied by A. Bracy, borrowed a car from one Debra
Gillenwater. Thereafter, Word and petitioner Martin
registered in separate rooms at the Tijuana Ramada Inn
(VI Tr. 796; IX Tr. 1305-1310). The next morning Martin

em

called Porie;, and A. Bracy inquired as to why Porter was
not in Tijuana. He instructed Porter to return there
immediately. Several hours later Martin again called
Porter to inquire why he had not left for Mexico. Porter
went to the airport but missed his flight and phoned A.
Bracy to inform him of this. A. Bracy then told Porter to
forget about coming to Tijuana (1V Tr. 505-511; Pet. App.
62a-63a). On that same day, the automobile borrowed by
Word from Debra Gillenwater was driven by Gurley
across the San Ysidro port of entry. Inspection of the
vehicle at the border revealed the presence of narcotics
(il Tr. 197-225; Pet. App. 63a).

ARGUMENT

1. Petitioners contend (Pet. 8-13) that the trial judge
erred in failing to declare a mistrial sua sponte and dis-
miss the indictment when the fact that perjured testi-
mony had been presented to the grand jury became
apparent during trial.

The relevant facts are that James Howard Porter was
served with a grand jury subpoena on April 6, 1976 (IV
Tr. 512), and, within a week, he phoned A. Bracy de-
manding $25,000 for his silence (IV Tr. 526). Although
protesting innocence, A. Bracy referred him to Detroit.
Later, another witness received an envelope from Bracy
which apparently contained money tu pay Porter's legal
fees (Pet. App. 63a).

On April 14, 1976, Porter appeared before the grand
jury and falsely testified that he had stopped working for
A. Bracy in November 1975, had only seen him once since
then, and that A. Bracy had suggested that he engage in
drug smuggling and he had refused to do so. Approxi-
mately ten days later Porter informed DEA agents that he
had perjured himself before the grand jury (Pet. App.
63a). On April 28, 1976, when DEA Agent Lunsford

testified before the grand jury, he specifically informed it
that Porter admitted to him that he had been involved in
the smuggling operation and delineated the scope of
Porter’s involvement in it (Ct. Exh. B). Porter did not
reappear before the grand jury, and neither the court nor
opposing counsel was immediately informed of the per-
jury. By May 26, 1976, however, petitioners had received
the investigating officer's reports containing Porter's ad-
mission to Lunsford that he had lied to the grand jury,
and, the day before the trial began (August 10, 1976), the
grand jury testimony of Porter, Lunsford, and others was
made available to petitioners (Pet. App. 64a).

At trial Porter admitted that he perjured himself before
the grand jury (e.g., 1V Tr. 543). At that point petitioners
moved to dismiss the indictment due to the government's
failure specifically to notify the grand jury, the court, and
defense counsel of the perjury. The motion was denied,
although the trial judge offered to entertain a mistrial
motion which would not preserve petitioner's double
jeopardy defense. Petitioners refused to waive any double
jeopardy defense by moving for a mistrial, and the trial
court refused to follow petitioners’ suggestion that he
grant a mistrial sua sponte (VI Tr. 779-784; Pet. App.
4Sa-52a).

It is clear that the trial judge did not err in refusing to
declare a mistrial or dismiss the indictment. As Mr.
Justice Rehnquist explained in denying petitioners’
motion for a stay in this case:

[I]t seems to me that applicants misconceive the
function of the grand jury in our system of criminal
justice * * *. The grand jury does not sit to deter-
mine the truth of the charges brought against a de-
fendant, but only to determine whether there is
probable cause to believe them true, so as to require

him to stand his trial. Because of this limited func-
tion, we have held that an indictment is not inval-
idated by the grand jury's consideration of hear-
say. Costello vy. United States, 350 U.S. 359 (1956),
or by the introduction of evidence obtained in viola-
tion of the Fourth Amendment. United States v.
Calandra, 414 U.S. 338 (1974). While the presenta-
tion of inadmissible evidence at trial may pose a
substantial threat to the integrity of that factfinding
process, its introduction before the grand jury poses
no such threat. I have no reason to believe this Court
will not continue to abide by the language of Mr.
Justice Black in Costello, supra, at 363: “An indict-
ment returned by a legally constituted and unbiased
grand jury, like an information drawn by the prose-
cutor, if valid on its face, is enough to call for trial of
the charge on the merits.” The Fifth Amendment
requires nothing more. [ Bracy v. United States, No.
A-798 (77-1360), March 29, 1978.]}

See also United States vy. Guillette, 547 F. 2d 743, 755
(C.A. 2), certiorari denied, No. 76-6615 (October 3, 1977);
United States vy. Rundle, 383 F. 2d 421, 423 (C.A. 3),
certiorari denied sub nom. Almeida v. Rundle, 393-U.S.
863. Here petitioners claim neith + that the indictment was
facially invalid nor that the grand jury was illegally
constituted.

United States v. Basurto, 497 F. 2d 781 (C.A. 9), upon
which petitioners rely, is not to the contrary. The court of
appeals construed its opinion in Basurto to require
dismissal of the indictment for failure to disclose perjury
only where the perjured testimony is material (Pet. App.
67a). See also United States v. Bowers, 534 F. 2d 186, 193
(C.A. 9), certiorari denied, 429 U.S. 942. Here the court
of appeals correctly found that Porter's testimony was
immaterial to the return of the indictment (Pet. App. 65Sa-
67a) because it did not affect petitioners’ culpability and,

10

moreover, it was obvious that the grand jury, which was
also presented Lunsford’s testimony that Porter had ad-
mitted participation in the scheme, disbelieved Porter's
claim of ignorance (Pet. App. 66a, 69a).4

In sum, as the court of appeals noted, “defense counsel
were aware or should have been aware of the alleged
perjury before trial * * *,°5 the perjury was immaterial
to the indictment, and the defense exhaustively explored
the question of perjury during-#ts_cross-examination of
Porter at trial (Pet. App. 71a). Petitioners therefore have
no basis for alleging that the prosecution's failure to
inform them specifically that Porter had committed
perjury before the grand jury could in any way have
affected their defense and warranted declaration of a
mistrial, particularlygbarring reprosecution of the charges.

2. Petitioners also claim (Pet. 12-19) that they were
prejudiced by improper joinder because the evidence
failed to show their participation in the February 1975
transaction resulting in the seizure of heroin and cocaine
from Margaret Canada and the March 20, 1976 incident
involving the seizure of heroin in an automobile driven by

‘Petitioners dispute the court's application of United States v.
Agurs, 427 U.S. 97, to the context of grand jury perjury (Pet. 26-27).
However, petitioners’ argument fails to recognize that the court relied
upon Agurs only in addressing the narrow question of the
prosecutor's duty of disclosing perjury to the defense. The Agurs
decision was not the basis for the court’s broader conclusion that
the grand jury need be informed of perjury only when the perjured
testimony is material.

‘Indeed, since petitioners were aware of the perjury before trial
their failure to move for dismissal at that time foreclosed any right to
move for dismissal of the indictment after jeopardy attached. Rule
12(b\ 2), Fed. R. Crim. P.

Stephanie Gurley. The court of appeals carefully re-
viewed the evidence in respect to these claims (Pet. App.
73a-75a) and noted that this case is controlled by the
principle that a single conspiracy can be demonstrated
by evidence showing “{eJach one of the defendants
knew or should have known that other retailers were
involved and that each had reason to believe that what
benefits he received were probably dependent upon the
success of the entire venture” (id. at 73a-74a). See also
Blumenthal vy. United States, 332 U.S. 539, 557. Accord-
ingly, for the reasons stated in the opinion of the court
of appeals, on which we rely, the evidence linking peti-
tioners to these transactions (Pet. App. 73a-75a) was
sufficient to establish one overall conspiracy.®

Petitioners’ additional contention (Pet. 17, 18-19) that
the trial judge erred by failing to instruct the jury that it
could find the existence of multiple conspiracies is
unfounded. The trial transcript reveals that the trial
judge instructed the jury as follows:

Although the indictment in this case charged a
single conspiracy, it would be possible to find
separate conspiracies, one relating to the Margaret

‘Petitioners also suggest (Pet. 28-29) that the court of appeals
improperly predicated the affirmance of their conspiracy convictions
on familial relationships and personal friendships. We agree that a
conspiracy conviction cannot rest exclusively upon evidence of as-
sociation with known participants, ¢.g., United States v. James, 528
F. 2d 999, 1014 (C.A. 5), certiorari denied sub nom. Henry v. United
States, 429 U.S. 959. Here, however, the decision of the court of
appeals is clearly based upon a review of independent evidence
demonstrating the petitioners’ efforts in furtherance of the smug-
gling scheme and not simply upon associations (Pet. App. 74a). The
court relied on petitioners’ relationships with other participants
only to demonstrate their familiarity with them and reinforce other-
wise fully sufficient evidence that each participant was familiar with
the overall scope of the scheme (Pet. App. 74a-75Sa). See United
Stuces v. Beldarrama, 566 F. 2d 560, 566 (C.A. 5). .

12

Canada incident in February of 1975 and the other
relating to the Stephanie Maria Gurley incident in
March 1976.

Whether there was one conspiracy or two con-
spiracies or no conspiracy at all is a fact for you to
determine in accordance with instructions. [XI Tr.
1680.]}

Moreover, as the court of appeals recognized (Pet. App.
75a), the trial judge fully protected petitioners from the
possibility of being convicted as participants in a
conspiracy with which they were not actually connected
by instructing further that the jury was not to consider
any act “against any defendant unless you find beyond
reasonable doubt that the person doing the act, making
the declaration, was a member of the same conspiracy
as was the defendant” (emphasis added) (XI Tr. 1680-
1681; Pet. App. 75a). See Kotteakos v. United States,
328 U.S. 750, 770-771.

3. Petitioners also argue that the narcotics seized
during the search of Canada's suitcase was inadmissible
due to the illegality of that search and of the aircraft
boarding search which preceded it (Pet. 14-15, 16, 23-25)
and that evidence seized pursuant to petitioner A. Bracy’s
arrest was inadmissible because improper procedures
were followed in procuring his arrest warrant (Pet. 20).

a. Petitioners lack standing to assert the invalidity of
the search of Canada’s suitcase, since neither petitioner
has ever claimed or sought to establish a proprietary
interest in the suitcase where the substances were dis-
covered’ or in the leased automobile. Moreover, they

"During the suppression hearing A. Bracy testified that the green
suitcase belonged to Canada and that he was unaware of its con-
tents and did not assist her in carrying it until after it left the con-
veyor belt and the security officer had inspected it (111 M. Tr. 259-
267). Accordingly. petitioner failed to establish standing to challenge

13

were not charged with possession of these narcotics,
which were introduced into evidence for the limited pur-
pose of establishing several of the overt acts alleged in
connection with the conspiracy offenses. See Brown v.
United States, 411 U.S. 223, United States vy. Guerrera,
554 F. 2d 987, 989-990 (C.A. 9).

In any event, these claims, which were rejected by the
court of appeals in United States v. Canada, 527 F. 2d
1374 (C.A. 9), certiorari denied, 429 U.S. 867, are without
merit. As the court found in Canada, the airport security
search was consensual since “ ‘the alternatives presented
to a potential passenger appraoching the screening area
are so self-evident that his election to attempt to board
necessarily manifests acquiescence in the initiation of the
screening process’ ” (527 F. 2d at 1378, quoting United
States v. Davis, 482 F. 2d 893, 914 (C.A. 9))j. In short,
consent was implicit from the totality of the circum-
stances. See Schneckloth vy. Bustamonte, 412 U.S. 218,
227: United States v. Miner, 484 F. 2d 1075, 1076 (C.A.
9); United States vy. Davis, supra, 482 F. 2d at 914."

the legality of the pre-flight search. See United States v. Prueitt,
540 F. 2d 995, 1005 (C.A. 9), certiorari denied sub nom. Petersen
v. United States, 429 U.S. 1063. Contrary to petitioners’ claim (Pet.
16 n. 4), the trial judge did not specifically resolve the standing
issue, but assumed the existence of standing in order to address
the merits of the legality of the airport search (see IV M. Tr. 19-20,
48, 65).

‘Petitioners’ contention (Pet. 22-24) that the court of appeals
decision in United States v. Canada, supra, conflicts with its earlier
decision in United States v. Davis, supra. is erroneous. In Davis the
court specifically found that pre-flight screening procedures and the
options available to potential passengers were not yet widely known.
Moreover, the record in Davis disclosed that the briefcase that was
subject to the search was taken from the defendant's hand and
opened before the defendant had the opportunity to do or think

14

Petitioner's challenge to the legality of the automobile
search is also insubstantial. It is readily apparent, and,
indeed, petitioners do not dispute, that after surveilling
the occupants for almost two days, the investigating
officers had probable cause to believe they were
transporting narcotics. United States v. Canada, supra,
527 F. 2d at 1377, 1379-1380. Moreover, as the auto-
mobile was fleeing from the scene of the drug purchase
transaction at a high rate of speed it was proper to
‘ seize and search the vehicle and its contents without a
warrant. Chambers v. Maroney, 399 U.S. 42, 52: see
Texas v. White, 423 U.S. 67, 68; United States v. Tuley,

546 F. 2d 1264, 1268 (C.A. 5), certiorari denied. No. 76-
6380 (October 3, 1977).

b. Petitioners’ final claim, that coded slips of paper
found on A. Bracy’s person during a search incident to his
arrest were inadmissible because his arrest was illegal, is
likewise without merit (Pet. 19-21).° Petitioners assert that
when the arrest warrant was issued on April 15, 1976, the
complaint supporting the warrant had not yet been
Prepared and sworn, since the date of the magistrate’s
attestation, which is not clearly legible, can be read as
April 16, 1976. This claim is without substance. The date
stamp on the complaint, as well as the minutes of the
United States District Court for the Southern District of
California (Pet. App. 21a; Record on Appeal |, 2), show
that both the complaint and DEA Agent Lunsford’s

anything. 482 F. 2d at 896 n. |, 914. It consequently declined to
find that the defendant implicitly consented to the pre-flight search.

These factors clearly were not present when C ,
prone p n Canada’s luggage was

*Of course, petitioner Martin lacks standing to assert the illegalit
of A. Bracy’s arrest and the ensuing search of his person. ye
Brown v. United States, supra.

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15

affidavit were filed with the court on April 15, 1976, and
that the affidavit was ordered sealed on that date.
Resolving the ambiguity resulting from the magistrate’s
illegible handwriting in the government's favor, it must be
concluded that the warrant was supported by a properly
executed complaint.

Moreover, even if it were assumed that the complaint
was not sworn until April 16, 1976, petitioner's claim is
insubstantial. As petitioners concede (Pet. 20), ule 4(a)
of the Federal Rules of Criminal Procedure provides that
“{i}f it appears from the complaint, or from an affidavit
or affidavits filed with the complaint, that there is prob-
able cause to believe that an offense has been committed
and that the defendant has committed it, a warrant for
the arrest of the defendant shall issue to any officer
authorized by law to execute it” (emphasis added). In-
deed, “{t}]here is no reason * * * why an arrest warrant
should * * * be predicated on a complaint rather than
simply an affidavit as in the case of a search warrant.”
United States v. Duvall, 537 F. 2d 15, 22 (C.A. 2). Here,
the DEA investigator's affidavit of April 15, 1976,
itself fully established a sufficient factual basis to support
issuance of the warrant.

CONCLUSION
It is therefore respectfully submitted that the petition
for a writ of certiorari should be denied.
Wave H. McCree, Jr.,
Solicitor General.

JOHN C. KEENEY,
Acting Assistant Attorney General.

Joseru S. Davies, JrR..
Joun F. DePue,
Attorneys.

JUNE 1978.

DOJ-1974-06

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0894%3A2. Public record. Not legal advice.