Opposition — Fernandez-Guzman v. United States

No. 78-171

In the Supreme Court of the United States

OCTOBER TERM, 1978

Jose L. FERNANDEZ-GUZMAN, PETITIONER

V,

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

Wave H. McCree, Jr.

Solicitor General

Puitip B. HEYMANN

Assistant Attorney General

JEROME M, Fert

WILLIAM C. BROWN

Attorneys

Department of Justice

Washington, D.C. 20530

In the Supreme Court of the Hnited States

OCTOBER TERM, 1978

No. 78-171

Jose L. FERNANDEZ-GUZMAN, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 4-15) is

reported at 577 F. 2d 1093. The court of appeals’

memorandum order (Pet. App. 16-27) is unpublished.

JURISDICTION

The judgment of the court of appeals was entered on

May 23, 1978. A petition for rehearing was denied on

June 30, 1978. The petition for a writ of certiorari was

filed on July 29, 1978. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

(1)

tN

QUESTIONS PRESENTED

|. Whether, in ruling on a motion to suppress evidence

discovered during a search incident to a warrantless

arrest, the court is restricted to considering only evidence

recited in the complaints filed after the arrest pursuant to

Fed. R. Crim. P. 5S(a).

2. Whether petitioner's arrest was supported by

probable cause.

RULES INVOLVED

Fed. R. Crim. P. 5(a) provides:

In General. An officer making an arrest under a

warrant issued upon a complaint or any person

making an arrest without a warrant shall take the

arrested person without unnecessary delay before the

nearest available federal magistrate or, in the event

that a federal magistrate is not reasonably available,

before a state or local judicial officer authorized by

18 U.S.C. §3041. If a person arrested without a

warrant is brought before a magistrate, a complaint

shall be filed forthwith which shall comply with the

requirements of Rule 4(a) with respect to the showing

of probable cause. When a person, arrested with or

without a warrant or given a summons, appears

initially before the magistrate, the magistrate shall

proceed in accordance with the applicable sub-

divisions of this rule.

Fed. R. Crim. P. 4(a) provides:

Issuance. \f it appears from the complaint, or from

an affidavit or affidavits filed with the complaint,

that there is probable 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. Upon the request of the attorney for the

government a summons instead of a warrant shall

issue. More than one warrant or summons may issue

on the same complaint. If a defendant fails to appear

in response to the summons, a warrant shall issue.

STATEMENT

Following a bench trial in the United States District

Court for the Northern District of Illinois, petitioner was

convicted of possessing heroin with intent to distribute it,

in violation of 21 U.S.C. 841(a)(1) (Pet. App. 5). He was

sentenced to five years’ imprisonment to be followed by a

special parole term of three years (Pet. 8). The cou of

appeals affirmed (Pet. App. 4-27).

Acting on a tip provided by an informant who had

previously provided rel..ble information, federal agents

commenced surveillance of petitioner and his co-

defendant Jose Rodriguez, who they believed were

involved in distributing a large shipment of narcotics.

After they had observed a series of activities that

appeared to be part of the distribution, the agents arrested

petitioner and Rodriguez. At the time of the arrest

petitioner was carrying a bag that contained two

kilograms of heroin (Pet. App. 22-24).

Since the arrests had been made without a warrant, the

arresting officers filed complaints pursuant to Fed. R.

Crim. P. 5(a) at petitioner's ‘initial appearance before the

federal magistrate.' Prior to trial petitioner moved to

'Two complaints were filed simultaneously, one against petitioner

and one against his co-defendant, Jose Rodriguez; since the magis-

trate had both complaints before him at the same time, petitioner

acknowledged that both should be considered in determining whether

the requirements of Rule S(a) were met (Pet. App. 5 n.2).

suppress the heroin on the ground that the complaints did

not show probable cause for his arrest. He contended that

the court was required to limit its consideration to the

contents of the complaints filed after the arrest. Rejecting

the contention that it was limited to considering the

complaints, the district court conducted an evidentiary

hearing and found (Pet. App. I-3) that the arrest and the

seizure of the heroin were supported by probable cause.

The court of appeals affirmed (Pet. Apps. B and C).

ARGUMENT

|. Petitioner contends (Pet. 12-23) that in determining

whether there was probable cause for his arrest the district

court could not consider evidence that was not recited in

the complaint filed after his arrest pursuant to Fed. R.

Crim. P. 5(a). Rule S(a) requires that a person arrested

without a warrant be brought, without unnecessary delay,

before the nearest federal magistrate, and that a

complaint be filed forthwith that complies “with the re-

quirements of [Fed. R. Crim. P.] 4(a) with respect to the

showing of probable cause.”?

This contention is wholly without merit. Whether a

warrantless felony arrest in a public place is consistent

with the Fourth Amendment turns upon the presence or

absence of probable cause at the time the arrest is made.

United States v. Santana, 427 U.S. 38, 42 (1976); United

States v. Watson, 423 U.S. 411 (1976); Whiteley v.

*Rule 4(a) requires the complainant to demonstrate “probable

cause to believe that an offense has been committed and that the

defendant committed it.”

Warden, 401 U.S. 560 (1971).) It follows that the contents

of the complaint later filed pursuant to Rule 5(a) are not

determinative of the constitutional validity of the arrest.

As the court of appeals correctly observed (Pet. App. 11;

ernphasis in original):

For it remains [true] that if there was in fact probable

cause at the time of the arrest, the arrest was:

constitutional when made and cannot retroactively be

made unconstitutional by a subsequent event, such as

failure to comply with Rule 5(a).

Contrary to petitioner's contention (Pet. 14-15, 18), the

court of appeals’ decision allows the government no

greater latitude under Rule 5 when it does not secure a

warrant than when it follows the “preferred procedure”

and obtains an arrest warrant pursuant to Rule 4. When

a suspect is arrested, in a public place on a felony charge

pursuant to a warrant, and the facts alleged in the

affidavit filed in support of the warrant pursuant to Rule

4a) are insufficient to show probable cause, or the

affidavit is otherwise defective, the government may

nevertheless demonstrate that the arrest was valid by

‘Although petitioner states (Pet, 21) that he has “no disagreement

with the Court of Appeals on the basic proposition that an arrest

warrant is not constitutionally mandated,” he nevertheless urges that

the court of appeals’ decision is in conflict with Watson (Pet. 22):

Conceding the availability of warrantless arrests, and now

[the] presence of the amended Rule S(a), that Rule having been

enacted to preserve the integrity of the Fourth Amendment, it

cannot be said, as the decisions here do, that the Fourth

Amendment didn’t need it. There is a basic constitutionality built

into Rule S(a), just as there is a basic presumption of

constitutionality involved in the statutes involved in Watson.

This argument is without merit. It does not follow from the fact that

legislation is presumed to be consistent with the Constitution that

compliance with statutory procedures is presumed also to be

constitutionally required.

showing that the arresting officers in fact had probable

cause. E.g., United States v. Rose, 541 F. 2d 750, 756 (8th

Cir. 1976), cert. denied, 430 U.S. 908 (1977); United

States ex rel. LaBelle v. LaVallee, 517 F. 2d 750, 753 (2d

Cir. 1975), cert. denied, 423 U.S. 1062 (1976); Mayer v.

Moeykens, 494 F. 2d 855, 858 (2d Cir.), cert. denied, 417

U.S. 926 (1974); Chrisman v. Field, 448 F. 2d 175, 176

(9th Cir. 1971), cert. denied, 409 U.S. 855 (1972); Ray v.

United States, 412 F. 2d 1052, 1053 (9th Cir. 1969);

United States v. Hall, 348 F. 2d 837, 841-842 (2d Cir.),

cert. denied, 382 U.S. 910 (1965); see Coolidge v. New

Hampshire, 403 U.S. 443, 453 (1971); Giordenello v.

United States, 357 U.S. 480, 488 (1958);4 United States v.

Rabinowitz, 339 U.S. 56, 60 (1950).5

‘Contrary to petitioner's arguments (Pet, 15-16), Giordenello v.

United States, supra, is consistent with and indeed provides support

for the court of appeals’ decision. The question in Giordenello was

whether the affidavit for an arrest was sufficient to support the

magistrate’s finding of probable cause. The Court concluded that the

affidavit was inadequate because it was composed of only the

complaining officer's conclusory hearsay statements and did not

include the reasons for his belief or even a statement that he had

spoken to the declarant. 357 U.S. at 486. The Court concluded that

the government could not raise the argument that the arrest was valid

despite the invalidity of the warrant for the first time in the Supreme

Court, but it further observed that in the event of a retrial, the

government could seek to justify petitioner's arrest without reference

to the warrant. 357 U.S, at 487-488.

‘Petitioner's allegation (Pet. 24-29) that the complaint contained

criminally reckless misrepresentations was rejected by the court of

appeals, which found (Pet. App. 19) no bad faith and, at most,

“carelessness.” In any event, for the reasons stated above, the

contents of the complaint are irrelevant to the constitutional validity

of petitioner's arrest. Franks v, Delaware, No, 77-5176 (June 26,

1978), which holds that the sufficiency of an affidavit in support of a

search warrant should be judged without reference to false statements

made knowingly or with reckless disregard of the truth, is simply

3. Finally, petitioner contends (Pet. 29-31) that there

was not probable cause for his arrest. After a careful

review of the record, however, the court of appeals

concluded that the district court had not erred in finding

probable cause (Pet. 19-24). This determination involves

only the application of settled principles of law to the

specific facts of this case, and in light of the concurrent

findings by both courts below, it presents no issue

warranting review by this Court. Berenyi v. Immigration

Director, 385 U.S. 630, 635 (1971); Graver Mfg. Co. v.

Linde Co., 336 U.S. 271, 275 (1949),

In any event, petitioner's claim is unfounded. Briefly,

the evidence at the suppression hearing showed that on

July 12, 1976, a DEA agent received information from an

informant who had provided reliable information on at

least 50 occasions that a large quantity of heroin had

arrived in Chicago for Oscar Mancillas, and that Jose

Rodriguez was to take an active part in its distribution

(Tr. 20; Pet. App. 20-22). The informant had previously

advised that petitioner distributed narcotics for Mancillas

(Tr. 7-8, 21-22), At about 9:00 p.m. on July 12, DEA

agents observed petitioner emerge from Rodriguez’

residence, look up and down the street, and then drive

away in a black Cadillac (Pet. App. 22). After circling the

block a few times, petitioner drove to the alley at the rear

of the house he had just left. Rodriguez, who was carrying

inapposite. The validity of the Seizure of the evidence in Franks

depended upon the validity of the warrant, whereas the sufficiency or

accuracy of the post-arrest complaint in the present case had no

bearing on the lawfulness of petitioner's arrest or the seizure of

evidence incident thereto.

“Tr,” refers to the transcript of the suppression hearing.

a grocery-type brown paper bag with red writing on it,

then came out of a rear exit; after looking furtively

up and down the alley, he joined petitioner in the

automobile (id. at 23). The two men proceeded to an

apartment on West Pierce, where they left the brown bag

after a brief stay. Around 11:30 that evening both

men again left Rodriguez’ residence and drove in separate

cars to the West Pierce apartment. About midnight, pe-

titioner emerged from the apartment carrying a brown

bag which appeared to be the one Rodriguez had left

there earlier. Rodriguez appeared immediately thereafter

carrying a scale box of a type used in the weighing of

narcotics. After looking about them, the two men drove

away in different directions. They were stopped and

arrested shortly thereafter, and the bag was found to

contain two kilograms of heroin.

Given the totality of the evidence known to the

arresting officers—-including the reliable informant’s tip

about the drug distribution to take place on July 12 and

the suspicious late-night activities of petitioner and

Rodriguez, who was observed carrying narcotics para-

phernalia—the courts below properly concluded that

there was probable cause for petitioner's arrest.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

Wape H. McCres, JR.

Solicitor General

Puitie B. HEYMANN

Assistant Attorney General

JEROME M. FEIT

WILLIAM C, BROWN

Attorneys

OcTOBER 1978

DOJ-1978-10