Opposition — Flickinger v. United States

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% eo et ae UNITED STATES OF AMERICA 2°

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= |. ON PETITION FORA WRIT OF CERTIORARI TO He

- THE UNITED STATES COURT OF APPEALS FOR aa

ite kp | THE NINTH CIRCUIT °

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peg BRIEF FOR THE UNITED STATES

Spe Cr ee IN OPPOSITION

Wape H. McCree, Jr..

| Solicitor General,

| .. Puuip B. Heymann,

nbz Assistant Attorney General,

“s JEROME M. Fert,

. FRANK J. MARINE,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

In the Supreme Court of the Hnited States

OcTOBER TERM, 1978

No. 77-1827

DANIEL NEWTON FLICKINGER, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORAK/ 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. la-24a)

is reported at 573 F. 2d 1349.

JURISDICTION

The judgment of the court of appeals was entered on

March 24, 1978, and a petition for rehearing was denied

on May 25, 1978 (Pet. App. Ib). The petition for a writ of

certiorari was filed on June 23, 1978. The jurisdiction of

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

QUESTIONS PRESENTED

1. Whether exigent circumstances justified the warrant-

less entry into petitioner's home on probable cause to

arrest him for a felony.

(1)

2

2. Whether the court of appeals erred in applying the

“clearly erroneous” standard in reviewing the correctness

of the district court’s finding of exigent circumstances.

STATEMENT

Following a jury-waived trial in the United States

District Court for the District of Nevada, petitioner and

his co-defendants, John Munier, Robert McLaughlin and

Stanley Hayduk, were convicted of conspiracy to import

and to possess marijuana, in violation of 21 U.S.C. 846

and 963, importation of marijuana, in violation of 21

U.S.C. 952(a) and 18 U.S.C. 2, and possession of

marijuana with intent to distribute, in violation of 21

U.S.C. 84l(aXl) and 18 U.S.C. 2. Petitioner was

sentenced to a concurrent five-year prison term on each

count, to be followed by a two-year special parole term.

The court of appeals affirmed (Pet. App. la-24a).

The evidence adduced at the suppression hearing and at

trial showed that on June 23, 1975, an informant told an

agent of the Drug Enforcement Administration that

during the past month she had seen an aircraft landing at

night without landing lights on a dry lake bed in the area

oi Beatty, Nevada, and that the aircraft had been met by a

four-wheel-drive Chevrolet Suburban (S. Tr. 24).' After

determining that petitioner owned the Suburban and that

he was a licensed pilot, the agents began a surveillance of

egy and his residence in Las Vegas, Nevada (S. Tr.

6-38).

On July I1, 1975, petitioner and co-defendants

McLaughlin and Munier equipped petitioner's Suburban

and another Suburban with wide “desert type” tires and

installed antennas and radio equipment in the other

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

Suburban and in a pickup truck (S. Tr. 35-41). On July

12, McLaughlin and Hayduk installed a large piece of

plywood in the bed of the pickup (S. Tr. 42-43). Later

that day, the two men painted an insignia on the doors of

the truck (S. Tr. 45).

On July 16, 1975, petitioner and Munier drove in

petitioner's Suburban from petitioners home to

McCarran Airport in Las Vegas, where they transferred

boxes from the vehicle into petitioner's twin engine Piper

Navajo aircraft and from the plane to the vehicle (S. Tr.

50-52). Munier then drove away in the Suburban and

petitioner took off in the airplane (S. Tr. 52-54). Later

that same day, petitioner was observed at the Tucson,

Arizona, airport, where he and a man of Mexican

appearance bought and reviewed aeronautical maps of

Mexico (S. Tr. 72-73). Still later that day, McLaughlin

and Hayduk, in the pickup, and Munier, in petitioner's

Suburban, drove to a dry lake bed (known as Hidden

Hills Dry Lake) in eastern California near the Nevada

border (S. Tr. 56-59, 62-63).

There was no activity at the dry lake bed until noon the

next day, when Munier drove petitioner's Suburban to a

phone booth. After Munier left the booth, D.E.A. agents

intercepted a radio transmission over the citizen’s band

radio in petitioner's Suburban, which said in substance

that he “called Susan last night and it's on for tonight” (S.

Tr. 69-70). (Petitioner's wife is named Susan.) Munier

then returned to the lake bed. Between 11:00 p.m. on July

17 and 1:00 a.m. on July 18, the agents intercepted a

series of radio transmissions from petitioner's Suburban,

including the statement that “Dan told us to cover up his

tracks” (S. Tr. 77-78). At approximately 11:00 p.m. on

July 17, one of the agents heard an aircraft land at the

lake bed, although the plane could not be seen because it

was not using its lights (S. Tr. 74-75). Some two hours

later, petitioner's Suburban and the pickup, also with

their lights out, drove away from the lake bed in different

directions, the pickup toward Tecopa, California, and the

Suburban toward Las Vegas (S. Tr. 76-77). At about 1:15

a.m. petitioner and his Mexican companion landed in

petitioner's aircraft at McCarran Airport (S. Tr. 78).

At the D.E.A. agents’ request, state police officers

stopped the pickup truck at about 4:00 a.m., found 1200

pounds of marijuana in the truck, and arrested its

occupants, McLaughlin and Hayduk (S. Tr. 79-80).

Meanwhile, at approximately 2:45 a.m., D.E.A. agents

observed petitioner's Suburban parked in front of his

home (Tr. 672).2 By 5:30 a.m., the agents at petitioner's

home had learned of the marijuana seizure and sought the

assistance of additional agents. About an hour later, after

two more D.E.A. agents had arrived, the agents knocked

at the front door of petitioner's residence, identified

themselves, and announced their purpose (Tr. 673-675).

Susan Flickinger opened the door, and the agents entered

and arrested petitioner, his wife and Munier (Tr. 675-

676; S. Tr. 92-93). After petitioner had been advised

of his Miranda rights but before the agents could ask

him any questions, petitioner remarked (Tr. 677): “Look,

you've got me. I’m guilty, okay? But don't bust Susan.

She doesn’t known anything about this. She doesn't

know anything about my business. She doesn't know

why I’ve been flying in and out of Mexico.” Petitioner

also told the agents his source of supply and explaintec/

how he had landed his aircraft on the dry lake bed

without lights (Tr. 678, 853-856). .

Petitioner, his wife and Munier were taken to the

federal building, while other agents remained at the

residence to await the arrival of a search warrant, which

“Tr.” refers to the trial transcript.

5

was obtained that afternoon (Tr. 679). A search of the

house pursuant to the warrant produced an aeronautical

map, with the Hidden Hills Dry Lake area encircled in

pencil (Tr. 726, 681-682). A subsequent search of

petitioner's airplane uncovered marijuana debris (Tr. 876),

and a search of petitioner's person after his arrest

uncovered a Mexican travel permit.

ARGUMENT

1. Petitioner, presumably seeking suppression of his

post-arrest admissions, argues (Pet. 6-7) that the district

court erred in finding that the agents’ entry into his

residence to effect a warrantless, probable cause arrest

was supported by exigent circumstances.’ This claim is

insubstantial.

It is an unsettled question “whether and under what

circumstances an officer may enter a suspect's home to

make a warrantless arrest.” Gerstein v. Pugh, 420 U.S.

103, 113 n. 13. See also United States v. Watson, 423 U.S.

411, 418 n. 6; United States v. Reed, 572 F. 2d 412 (C.A.

2). There is no dispute, however, that the absence of a

warrant may be justified by exigent circumstances. See

Roaden v. Kentucky, 413 U.S. 496, 505, Johnson Vv.

United States, 333 U.S. 10, 14-15; United States v.

Gardner, 553 F. 2d 946, 947-948 (C.A. 5), certiorari

3The court of appeals correctly concluded that petitioner's arrest

was lawful. But even if the arrest had been invalid, that would not

necessarily require suppression of petitioner's post-arrest statements,

made after he had received Miranda warnings. See Brown v. Illinvis,

422 U.S. 590, 603-604; United States v. Ceccolini, No. 76-1151,

decided March 31, 1978. No other evidence was attributable to the

arrest entry, since the agents waited until a warrant had been

procured before searching petitioner's house. See United States v.

Delguyd, 542 F. 2d 346, 350-352 (C.A. 6). Compare Mincey Vv.

Arizona, No. 77-5353, decided June 21, 1978, slip op. 7.

denied, No. 77-416, January 9, 1978. See also Mincey v.

Arizona, No. 77-5353, decided June 21, 1978, slip op. 6.

Moreover, as the court below properly pointed out,

“exigency does not evolve from one single fact [but turns

on] the totality of the circumstances * * *” (Pet. App. 8a-

9a). So viewed, the facts of this case provided a sufficient

basis for a finding of exigency.

To begin with, as petitioner concedes (Pet. App. 8a), at

the time of the entry the agents clearly had probable

cause to believe that petitioner had imported a substantial

amount of marijuana into the United States only a few

hours earlier and was then present in his home, probably

in possession of large quantities of the easily disposable

drug: based on their earlier surveillance, the substance of

the overheard radio conversations, and the timing of the

arrival and departures of the vehicles and airplane, “the

D.E.A. agents could reasonably believe that the two

vehicles leaving the lake bed contained contraband” (Pet.

App. 10a), and petitioner’s Suburban, one of the two

vehicles that had met the plane carrying the marijuana,

was parked in front of petitioner's home. Additionally,

there was a significant danger that petitioner's con-

federates, who had just been arrested in possession of the

illegally imported marijuana, or other co-conspirators

(whose identities were unknown), would telephone or

otherwise attempt to contact petitioner to warn him of the

government's surveillance (Tr. 702) or that “a concerned

prospective recipient [of the marijuana] might alert

[petitioner] that the delivery was overdue and thus had

possibly been intercepted” (Pet. App. 13a). Petitioner's

training as a pilot and his access to an airplane heightened

the risk of escape (Tr. 684).

Trafficking in controlled substances particularly

requires a prompt law enforcement response. As Judge

Friendly has observed in sustaining a warrantless drug

—— |, '!

arrest in the defendant's home, “agents are entitled to use

their knowledge that efforts to dispose of narcotics and to

escape are characteristic behavior of persons engaged in

the narcotics traffic * * *.” United States v. Manning, 448

F. 2d 992, 998-999 (C.A. 2) (en banc), certiorari denied,

404 U.S. 995. Accord, United States v. Davis, 461 F. 2d

1026, 1031-1032 (C.A. 3) (“Because of the speed with

which narcotics can be dispersed or destroyed, agents

must be able to move as quickly as possible. * * *

[W]henever the Government attempts to control narcotics

and narcotics peddlers, it is dealing with a type of exigent

circumstance, the disappearance of evidence or

contraband, long recognized as creating an exception to

the need for.an arrest or search warrant.”) Moreover,

while there was no evidence in this case that petitioner

was actually armed, it was reasonable for the agents to

believe that he might have had a gun in his house, given

the common experience that large scale drug dealers often

employ weapons. Indeed, the agents testified that they

were concerned for their safety and feared thai the

occupants of petitioner's home were armed (Tr. 700-

701, 706). The presence of multiple suspects in the house

increased the dangers facing the agents.

In short, there was a significant possibility that

petitioner would escape or destroy evidence unless the

D.E.A. agents acted expeditiously. See, ¢.g., Aer \.

California, 374 U.S. 23, 40; United States v. Mc Laughlin,

525 F. 2d 517, 521 (C.A. 9), certiorari denied, 427 U.S.

904; United States v. Bustamanie-Gamez, 488 F. 2d 4, 8

(C.A. 9), certiorari denied, 416 U.S. 970; United States v.

Rubin, 474 F. 2d 262, 268-270 (C.A. 3), certiorari denied

sub nom. Agran v. United States, 414 U.S. 833. The

agents’ decision to arrest petitioner therefore was a

reasonable response to a fast developing chain of

events in the early hours of the morning.‘

2. Petitioner argues (Pet. 7-8) that the court of appeals

erred in applying a “clearly erroneous” standard to review

the district court's finding of exigent circumstances. We

note at the outset that the court below did not state that it

would have disagreed with the trial judge if it had decided

the exigent circumstances question de novo. Moreover,

for the reasons outlined above, the district court's

determination was plainly correct. Hence, this issue

appears to be only of academic importance in the context

of this case.

In any event, while the matter is not free from doubt,

the weight of authority supports the court of appeals’

decision. Although the “exigent circumstances”

determination to some extent involves a mixed question

of fact and law, it involves the sort of case-specific issue,

like the voluntariness ve/ non of a defendant's confession

or consent to search, in which deference should be given

to the “fact-finding tribunal's experience with the

‘There is a strong similarity between this case and the cases

applying the doctrine of “hot pursuit.” While in a literal sense there

was no “chase” here, there was no chase in Warden v. Hayden, 387

U.S. 294, where the suspect was already inside his home when the

officers learned of his whereabouts. Nor was there a “chase” in other

recent cases applying the “hot pursuit” doctrine. See, ¢.g., United

States v. Scott, 520 F. 2d 697, 699-700 (C.A. 9), certiorari denied, 423

U.S. 1056; United States v. Holland, 511 F. 2d 38, 43-44 (C.A. 6),

certiorari denied, 421 U.S. 1001; United States v. Holiday, 457 F. 2d

912, 914 (C.A. 3), certiorari denied, 409 U.S. 913; United Siaies v.

Rose, 440 F. 2d 832, 834 (C.A. 6), certiorari denied, 404 U.S. 838. CI.

United States v. Easter, 552 F. 2d 230, 233 (C.A. 8); certiorari denied,

434 U.S. 844; United States ex rel. Cardaio v. Casscles, 446 F. 2d 632.

637-638 (C.A. 2).

mainsprings of human conduct.” Commissioner Vv.

Duberstein, 363 U.S. 278, 289. See United States v.

Bradshaw, 515 F. 2d 360, 364-365 (C.A. D.C.), reversed

on other grounds en banc sub nom. United States v.

Robinson, 533 F. 2d 578, certiorari denied, 424 U.S. 956;

United States v. Gargotto, 510 F. 2d 409 (C.A. 6),

certiorari denied, 421 U.S. 987. This Court and the lower

courts therefore have repeatedly held that a trial judge's

determination of matters such as these—even if they

should not be accorded the same degsee of deference as a

credibility determination—should not be disturbed unless

clearly erroneous. See, e.g., Campbell v. United States,

373 U.S. 487, 493 (producibility of interview reports

under the Jencks Act); Davis v. United States, 328 U.S.

§82, 593 (voluntariness of a consent to search); United

States v. McCaleb, 552 F. 2d 717, 720-721 (C.A. 6)

(same); United States v. Lemon, 550 F. 2d 467, 472(C.A.

9) (same); United States v. Woodward, 546 F. 2d 576

(C.A. 4) (search not the result of allegedly unlawiul

surveillance); United States v. Jackson, 544 F. 2d 407, 410

(C.A. 9) (abandonment of property); United Siaies \v.

Quinn, 540 F. 2d 357, 361 (C.A. 8) (prejudice to the

defendant from pre-indictment delay). See generally

United States v. Hart, 546 F. 2d 798, 801-802 (C.A. 9),

certiorari denied sub nom. Robles v. United Sitaies,

429 U.S. 1120; United States v. Tallman, 437 F. 2d

1103, 1104-1105 (C.A. 7); Jackson v. United States,

353 F. 2d 862, 864-865 (C.A. D.C.). After observing the

witnesses and hearing the evidence at the suppression

hearing, the district court was in by far the best

position to judge whether the agents’ swift action was

reasonable in the circumstances of this case. Since the

court of appeals found the issue to be a close one, it

properly concluded not to disturb the lower court's

determination.

10

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

Wave H. McCret, JR.,

Solicitor General.

PHitie B. HEYMANN,

Assistant Attorney General.

JEROME M. FEIT,

FRANK J. MARINE,

Attorneys.

AuGustT 1978.

DO}-1978-08

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