Opinion — Baker v. United States

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~.@N PETITION FOR A WRIT OF CERTIORARI TO ie

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Bae pe ~ THE NINTH CIRCUIT Ses

‘SS : BRIEF FOR THE UNITED STATES

SSN IN OPPOSITION

Reet) BES | Wave H. McCree, Jr.

BE oS * Solicitor General,

_» SE eae Joun C. Keeney, ,

Be ce a FN ; Acting Assistant Attorney

> 2 a ae ‘JEROME M. Fer,

E ye JOHN, VOORHEES,

Bes eS | Attorneys,

7 “$3 Department of Justice,

Washington, D.C. 20530.

In the Supreme Court of the Mnited States

OCTOBER TERM, 1977

No. 77-1409

BruCE JOHN BAKER and JOHN STEPHEN BRYAN,

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

OPINIONS BELOW

The opinion of the court of appeals (Pet. App A) ts

reported at 567 F. 2d 924. The opinion of the district

court (Pet. App. C) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

January 19, 1978. A petition for rehearing was denied on

March 6. 1978 (Pet. App. B). The petition for a writ of

certiorari was filed on April 3, 1978. The jurisdiction of

this Court is invoked under 28 U.S.C. 12541).

(1)

QUESTIONS PRESENTED

|. Whether the search of a footlocker taken from the

trunk of petitioners’ car following their arrest violated the

Fourth Amendment.

2. Whether the affidavit submitted in support of the

search warrant for petitioners’ automobile contained a

materia! omission that invalidated the search.

STATEMENT

Following a jury-waived trial in the United States

District Court for the Northern District of California,

petitioners were convicted of possession of cocaine with

intent to distribute it, in violation of 2! U.S.C. 841(aX 1),

and conspiracy to distribute cocaine, in violation of 21

U.S.C. 846. Petitioner Baker was sentenced to concurrent

terms of five years’ imprisonment, to be followed by three

years’ special parole, on each count; petitioner Bryan was

sentenced to concurrent terms of five years’ imprison-

ment, to be followed by three years’ special parole, on

each count. The court of appeals affirmed (Pet. App. i-x).

Petitioners moved before trial to suppress the cocaine

that was seized, pursuant to a search warrant, during the

search of a footlocker that had been found in the trunk of

the automobile in which they were arrested. The evidence

showed that at about 12:30 p.m. on August 17, 1976,

Agent Alvah Henley of the Drug Enforcement Ad-

ministration and Officer Barry Bergman of the Foster

City, California, Police Department, who were both

working in an undercover capacity, met with co-

conspirators Jeffrey Wardley and Ronald O'Donnell at the

Winery Restaurant in Foster City for the purpose of

purchasing an ounce of cocaine (Pet. App. ii; S. Tr. 13;

Tr. 371-372).! O'Donnell and Agent Henley went to the

'S. Tr.” refers to the transcript of the suppression hearing. “Tr.”

refers to the trial transcript.

restaurant parking lot, where O’Donnell removed 27

grams of cocaine from a blue flight bag in the rear seat of

his car and sold the drugs to the agent for $1,770 in

marked funds. After the two men had returned to the

restaurant, O'Donnel! informed the agents that an ad-

ditional four pounds of cocaine were available from his

source, “Debbie.” in Palo Alto (Pet. App. ii; S. Tr. 14, 16;

Tr. 381, 376). After making several telephone calls to

“Debbie.” O'Donnell offered to drive to Palo Alto to ob-

tain a sample of the cocaine (S. Tr. 16-17). O'Donnell re-

turned to the restaurant at about 4:20 p.m. and showed

the sample to Agent Henley. Following further negotia-

tions, it was agreed that “Debbie” and two other persons

would transport all of the cocaine to Foster City and that

the agents would purchase it from O°Donnell one-half

pound at a time (Pet. App. xii; S. Tr. 20; Tr. 341).

At approximately 7:10 p.m., O'Donnell left the

restaurant to meet with “Debbie” (S. Tr. 22; Tr. 391).

D.E.A. agents observed O'Donnell, co-conspirator

Deborah Sears and petitioner Baker walk across the

parking lot behind the restaurant and enter O’Donnell’s

automobile (Pet. App. iii; S. Tr. 143). Shortly thereafter,

petitioner Baker got out of the car, walked back across

the parking lot, and disappeared behind the restaurant. A

few minutes later, petitioner Baker returned to the car and

placed a blue flight bag in the trunk (S. Tr. 143-144).

At 7:45 p.m., petitioner Bryan drove into a lot and

parked facing O’Donnell’s car. Sears and petitioner Baker

joined petitioner Bryan in his car, while O'Donnell went

inside the restaurant to tell Agent Henley that the cocaine

had arrived (S. Tr. 144-145). O'Donnell then led the agent

to the trunk of his car and removed a plastic bag

containing a half pound of cocaine from the blue flight

bag. At this point O'Donnell was arrested. Agent Henley

then signalled the other agents. who arrested Sears and

4

petitioners as they sat in petitioner Bryan's car (S. Tr. 23-

24, 393). One of the agents removed the keys from the

ignition and handed them to Officer Bergman, who

opened the trunk. Inside he saw a briefcase and a locked

footiocker (S. Tr. 27-30). The agents immediately opened

the briefcase (which contained a large amount of cash),?

but they decided to obtain a search warrant before

opening the footlocker because they “were not sure [they]

could break the locks on the foot locker at that time” (S.

Tr. 30-31). Both cars were then driven to the Foster City

Police Department and impounded.’ On the following

day, after obtaining a warrant to search the automobile

(Pet. App. D), the officers opened the footlocker and

found some three pounds of cocaine (S. Tr. 31).

ARGUMENT

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

petitioners contend (Pet. 6-8) that the search of the

footiocker in the trunk of the impounded automobile

violated the Fourth Amendment. Although petitioners do

not dispute that the police officers had probable cause to

believe that the footlocker contained cocaine and that the

officers had a valid warrant to search the impounded

automobile in which the footlocker was resting, they

contend that the failure of the warrant to specify the

footlocker requires suppression of the cocaine. This claim

is insubstantial for a number of reasons.

?Since this money had not been introduced into evidence, the court

of appeals did not discuss the validity of the opening of the briefcase

(Pet. App. viii n. 2).

‘A search of petitioners and Sears at the police station revealed

that they were in possession of some of the prerecorded money that

had been used earlier in the day to purchase one ounce of cocaine

from O'Donnell (S. Tr. 32).

To begin with, the court of appeals correctly rejected

petitioners’ assertion that the search of the footlocker did

not occur pursuant to the warrant obtained by the police

officers (Pet. App. vii). The warrant authorized the

seizure of all contraband from the impounded vehicle (id.

at XXiii-xxiv), and the police identification list, compiled

during the subsequent search, shows that the footlocker

containing the cocaine had not been removed irom the

trunk of petitioner Bryan's car prior to the search (id. at

Vil).

Moreover. regardless of the proper interpretation of the

search warrant, the fact remains that the officers could

have searched the car without a warrant, either at the time

of petitioners’ arrest or back at the station house. See

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

v. White, 423 U.S. 67, 68; Chambers v. Maroney, 399

U.S. 42, 51-52. This power to execute an immediate

search on probable cause extends to items, such as the

footlocker, found inside the vehicle. See United States v.

Chadwick, supra, 433 U.S. at 23 n. 4 (Blackmun, J..

dissenting); United States v. Finnegan, 568 F. 2d 637, 640

(C.A. 9); United States v. Soriano, 497 F. 2d 147, 149

(C.A. 5) (en banc), certioreri denied sub nom. Aviles v.

United States, 433 U.S. 9.1.4

Finally, even if the warrant were construed not to cover

the footlocker and the search of the footlocker were

deemed to be inconsistent with the principles announced

in Chadwick, that decision would not require suppression

of the unquestionably probative evidence seized from the

trunk of petitioner Bryan's automobile. Every court of

‘Indeed. the car and its contents also could have been searched

without a warrant because they had lawfully been impounded tor

forfeiture. See 2! U.S.C. 881: Cooper v. California, 386 US. SS

6

appeals to have considered the question has held that

Chadwick should not be applied to searches, such as the

one in this case, that occurred prior to that decision. See

United States v. Choate, C.A. 9, No. 76-3486, decided

March 15, 1978; United States v. Berry, 571 F.2d 2(C.A.

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

certiorari denied, No. 77-5995, April 17, 1978; United

States v. Montgomery, 558 F. 2d 311 (C.A. 5), certiorari

denied, No. 77-5025. October 31, 1977. This view is

consistent with this Court's repeated statements that

Fourth Amendment rulings, which do not relate to the

integrity of the fact-finding process, should be accorded

only prospective application. See United States v. Peltier,

422 U.S. 531, 535; Williams v. United States, 401 U.S.

646.

2. Petitioners argue (Pet. 9-11) that the search warrant

was defective because the supporting affidavit omitted the

information that a footlocker had been found in the trunk

of the car. As noted above, since the officers could have

searched the automobile and its contents without a

warrant, any defects in the warrant are immaterial. But

more important, nothing in the record suggests that the

affiant intentionally omitted reference to the footlocker,

much less that it was left out with the purpose of

influencing the magistrate to issue the warrant. To the

contrary, the affidavit sets forth in detail the facts that

incontestably establish probable cause to search the car.

Inclusion of the omitted information, in the context of

O’Donnell’s phone calls to “Debbie” and his negotiations

with the agents. would only have strengthened that

conclusion. Suppression of the cocaine because of the

failure to mention the footlocker is therefore not

warranted.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

Wave H. McCree, Jr.,

Solicitor General.

JOHN C. KEENEY,

Acting Assistant Attorney General.

JEROME M. FEIT,

JOHN VOORHEES,

Attorneys.

JUNE 1978.

DOJ-1978-06