# Opposition — Azhocar v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1979
- **Citation:** 440 U.S. 907

## Text

| 7 Supreme Court, U, &
FILED

|
No. 78-524 i JAN 5 1979

~ ~ MICHAEL RODAK, JR., CLERK

Iu the Supreme Court of the United States

OCTOBER TERM, 1978

ALFRED E. AZHOCAR, PETITIONER
Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE NINTII CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WADE H. McCREE, JR.
Solicitor General

PHILIP B. HEYMANN
Assistant Attorney General

ROBERT J. ERICKSON
ANDREW GORDON
Atiorneys
Department of Justice
Washington, D.C. 20530

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CITATIONS
Cases:

Berger v. United States, 255 U.S. 22 ......
Carroll v. United States, 267 U.S. 182......
Chambers v. Maroney, 399 U.S. 42 ..........
King v. United States, 576 F.2d 482 ........
Rakas vy. Illinois, No. 77-5781 (Decem-

2,
Scott v. United States, 486 U.S. 128 ........
United States v. Burke, 506 F.2d 1165,

cert. denied, 421 U.S. 915 ~....................
United States v. Chadwick, 433 U.S. 1......
United States v. Clark, 559 F.2d 420 ........
United States v. Grinnell Corp., 384 U.S.

ea cnsemsiieicnnenanse
United States v. Lovasco, 431 U.S. 783....
United States v. McConnell, 500 F.2d

ERE ES ae reer ne era
United States v. Ortiz, 422 U.S. 891 ........
United States v. Rodriguez-Alvarado, 510

SER Rae ce ce
United States v. Wolfson, 558 F.2d 59......

aon SoS —-

II

Statutes: shal In the Supreme Court of the United States

18 U.S.C. 922 (Ih) <ecccnevaccocncescccnnceccccneeeceonnes 2

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18 U.S.C. 4205 (b) (2) -ecocssccccoveseseesnneeeeeoen 2

21 U.S.C. 841(8) (1) ne--cccovcesccconccesccecnvesees 2

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BD Is FD oacnseccccenenvececsesmncsenecnennnsauctnens 13 ALFRED E. AZHOCAR, PETITIONER
v.

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. A)
is reported at 581 F.2d 735.

JURISDICTION

The judgment of the court of appeals was entered
on June 16, 1978. A petition for rehearing was de-
nied on September 6, 1978. A petition for a writ of
certiorari was filed on September 27, 1978. The juris-

(1)

2

diction of this Court is invoked under 28 U.S.C.
1254(1).
QUESTIONS PRESENTED

1. Whether the evidence seized in a warrantless
search of the car driven by petitioner’s cousin should
have been suppressed.

2. Whether the trial judge erred in denying peti-
tioner’s motion that he recuse himself.

STATEMENT

Following a jury trial in the United States District
Court for the Southern District of California, peti-
tioner was convicted of conspiracy to import, possess
and distribute heroin and cocaine, in violation of 21
U.S.C. 846, and possession of cocaine with the intent
to distribute it, in violation of 21 U.S.C. 841(a) (1).’
He was sentenced to two consecutive 10-year terms
of imprisonment followed by a lifetime special parole
term. After a bench trial based on stipulated facts
derived from the narcotics conspiracy trial, petitioner
was found guilty of receipt of a firearm by a con-
victed felon in violation of 18 U.S.C. 922(h) and
924 and sentenced to five years’ imprisonment under
18 U.S.C. 4205(b)(2), the sentence to run con-

1Count I named Olivia Azhocar-Angulo, Norma William-
son, Thomas Reyes, Geronimo Gutierrez-Sanchez, and Refugio
Salazar-Garcia as petitioner’s co-conspirators. Olivia Azho-
car’s severance motion was granted by the trial court. Guti-
errez-Sanchez was acquitted by the trial court, and Reyes and
Williamson were acquitted by the jury. Salazar-Garcia has
not yet been tried.

3

currently with that imposed for the narcotics con-
victions.”

The government’s evidence showed that DEA
agents began surveillance in January 1976 of a
group of narcotics dealers in Mexico and the border
areas of California. Petitioner, who had previously
been convicted of narcotics offenses in state court,
was one of the suspected dealers who was placed
under surveillance (Tr. 348-346). During the fed-
eral investigation, petitioner was seen with Gutierrez-
Sanchez, a known narcotics trafficker who maintained
residences both in Mexico and California (Tr. 344,
346-349, 356-359, 398, 430). Petitioner was also seen
with Salazar-Garcia and Lizzaraga-Ozuna, both of
whom were being sought on federal drug charges
(Tr. 356-359). During this same period, Salazar-
Garcia introduced a DEA informant to Gutierrez-
Sanchez so that they could discuss the possibility of
smuggling narcotics into the United States (Tr. 355).

In the course of this investigation, government
agents reviewed the billing records for petitioner’s
home telephone, which revealed calls to Gutierrez-
Sanchez’s apartment in Mexico (where petitioner had
been seen with Gutierrez-Sanchez) to Gutierrez-
Sanchez’s residence in California, and to a hotel in
Tiajuana where Gutierrez-Sanchez had stayed (Tr.
358). Government agents also learned that Mexican
authorities had charged Gutierrez-Sanchez with evad-

2 After this conviction, four additional counts that charged
similar offenses were dismissed at the government’s requ: st.

4

ing the taxes on millions of pesos earned from the
sale of narcotics (Tr. 364-365).

On July 23, 1976, DEA agents in Mexico observed
Patricia Azhocar, petitioner’s cousin by marriage,
meet with Salazar-Garcia (a known associate of
Gutierrez-Sanchez) in a black-over-maroon Cadillac
(Tr. 373, 449, 497). On the same day petitioner was
seen in the parking lot of Patricia’s apartment build-
ing (Tr. 366, 373-374).

On July 27, at about noon, agents began surveil-
lance of petitioner’s residence in Imperial Beach,
California, about four miles from the Mexican
border (Tr. 346, 360-362, 364, 389). During the
next four hours, the agents observed a number of
individuals arrive in automobiles, enter the residence,
and leave (Tr. 360). At approximately 4:25 p.m.,
Patricia arrived at petitioner’s house driving the
same Cadillac she had been driving when she met
with Salazar-Garcia in Mexico (Tr. 360, 401).
Patricia entered the house for a short time, then
returned to the car, removed a large package from
the trunk, and reentered the house (Tr. 360-361,
401-402). About 20 minutes later she left the house
carrying a box and a bag, placed those items in the
trunk, and drove away (Tr. 360, 402-403).° The law
enforcement officers followed.

’ While Patricia was in petitioner’s house, one of the agents
left to seek the assistance of an Assistant United States Attor-
ney in obtaining a warrant to search the Cadillac (Tr. 366,
386, 403-404).

5

After she had driven a short distance, Patricia
began to drive erratically in an apparent attempt to
evade the surveilling officers (Tr. 375-376, 445, 453-
454). During this time, Agent Williams spoke to the
Chula Vista police concerning the circumstances of
their investigation and requested that the local police
stop Patricia on the ruse that they believed that the
car had been stolen and that it contained firearms
(Tr. 367, 454). After about 25 minutes of driving
in circles, Patricia parked the car in a store parking
lot. Several Chula Vista policemen pulled up behind
Patricia, asked her to step out of the car, and con-
ducted a search of the car that uncovered a box and
bag containing three kilograms of cocaine, cutting
agents, and a scale (Tr. 368, 456, 478-479).

Patricia cooperated with government agents, giv-
ing consent for a search of another car and her
apartment (Tr. 494-496, 508). The agents found
three pounds each of heroin and cocaine in the sec-
ond car (Tr. 1012-1013, 1017). A later warrant-
authorized search of petitioner’s house yielded quanti-
ties of heroin, marijuana, and cocaine, $4,900 in
cash, and numerous firearms (Tr. 915-920, 946-948,
955-956, 993-996). Approximately $100,000 in cash
was discovered hidden behind a panel in the trunk
of petitioner’s car, which was parked in the adjoin-
ing garage (Tr. 169, 961-962, 1003).

Prior to trial, petitioner moved to suppress the
evidence seized from the Cadillac driven by Patricia
Azhocar. Although Patricia was the registered owner
of the car, petitioner testified that he was the true

6

owner and that he had permitted Patricia to use it
to carry and store narcotics (Tr. 150-151, 154). He
stated that he had given Patricia the money to pur-
chase the car and pay for its registration, and that
he told her to register the car in her own name
(Tr. 150-152, 154, 158). The district court ruled
that petitioner had established standing to chal-
lenge the search (Tr. 162). The court concluded that
there was probable cause for the search of the vehi-
cle, and that the “fastbreaking” circumstances justi-
fied proceeding without a warrant, since the car was
parked in a public place and there was a danger that
conspirators might try to destroy any evidence in the
car (Tr. 724-725). Accordingly, petitioner’s motion
to suppress the evidence discovered in the car was
denied.

Patricia Azhocar testified as a prosecution witness
at trial (Tr. 1090-1221), and the evidence seized
from the Cadillac, as well as the drugs, money, and
firearms seized at petitioner’s home, were introduced
into evidence.

ARGUMENT

1. a. Petitioner contends (Pet. 14-30) that the
search of the Cadillac was unsupported by probable
cause and that the evidence discovered as a result of
the search should have been suppressed. This conten-
tion is without merit. Since this case involves only
the application of settled principles to the facts of
this case, it does not present an issue warranting
review by this Court. Moreover, as the court of ap-

7

peals correctly concluded (Pet. App. 8), there was
“abundant probable cause to believe that a delivery
of narcotics was being made” by Patricia Azhocar
and that the narcotics were in her automobile.‘

A six-month investigation encompassing surveil-
lance in both the United States and Mexico had re-
vealed that petitioner, himself a convicted narcotics
dealer, was associating with other known traffickers
in Mexico. Telephone toll records provided additional
evidence of petitioner’s communications with other
members of the conspiracy. Informants provided in-
formation that Gutierrez-Sanchez was arranging the
movement of large quantities of narcotics from Mex-
ico to the United States, and investigators suspected
that petitioner was involved. A few days after she
was seen talking with Salazar-Garcia in Mexico,
petitioner’s cousin, Patricia Azhocar, visited petition-
er’s house. She was driving the same automobile in
which she had met Salazar-Garcia. Based upon the
information gained in their investigation, when the
agents observed Patricia carry a package into peti-
tioner’s house and return shortly thereafter to the car
with two other packages, they drew the inference
that she was assisting petitioner in the importation
and distribution of narcotics and that the packages

Petitioner also attacks the search (Pet. 22-23), on the
ground that one of the agents requested that local police stop
Patricia’s car on the pretense that they believed the car was
stolen and that it contained guns. However, since the federal
agents had probable cause for the search, the subjective state
of mind of the individual officers is not relevant. See Scott v.
United States, 436 U.S. 128, 188 (1978).

8

in her car contained narcotics. Patricia’s evasive
driving maneuvers when she noticed that she was
being followed provided strong corroboration for the
agents’ conclusions. As the district court observed
(Tr. 724), “her desperate efforts to elude the agents
and her activity in so doing changed what may
well have been an innocent or strong suspicion
into probable cause.” See United States v. Rodriguez-
Alvarado, 510 F.2d 1068, 1064 (9th Cir. 1975).

Petitioner argues (Pet. 19-20) that the activities
outlined above were innocent in themselves and that
the agents’ actions were premised ‘‘on mere suspicion
and hunch” (Pet. 24). But even though individual
actions, viewed in isolation, may appear to be inno-
cent, the probable cause determination turns on “the
totality of the circumstances and the inferences that
flow therefrom.” United States v. Clark, 559 F.2d
420, 424 (5th Cir. 1977). “[T]he officers are entitled
to draw reasonable inferences from these facts in
light of their knowledge of the area and their prior
experience * * *.” United States v. Ortiz, 422 U.S.
891, 897 (1975).

b. Alternatively, assuming that there was proba-
ble cause, petitioner urges (Pet. 27-28) that there
was no justification for conducting the search with-
out first obtaining a warrant. He implicitly recog-
nizes that the agents could not leave the automobile
unsecured in the public parking lot because of the
danger that Patricia would drive off and elude them,
or that the co-conspirators might empty the car of
evidence. See Carroll v. United States, 267 U.S. 132,

9

153 (1925). But he argues that the agents could
have guarded Patricia and the car until a warrant
was secured, and that “[w]ith several government
agents and more than three local police vehicles sur-
rounding the Patricia Azhocar vehicle, the likelihood
of its removal was extremely remote” (Pet. 27).

It is well settled that when an automobile is
stopped in a public street or parking area on the
basis of probable cause, the police may search it im-
mediately rather than detaining it while they seek
a search warrant. Chambers v. Maroney, 399 U.S.
42, 51 (1970). See United States v. Chadwick, 433
U.S. 1, 14 n.8 (1977).°

’ Moreover, although the court of appeals did not consider
this point, even if the search of the car had been improper,
suppression would not have been required because petitioner
had no constitutionally protected privacy interest in the car.

The district court based its conclusion that petitioner had
standing to challenge the legality of the search on his testi-
mony that he had provided Patricia with the money to pur-
chase the car, and that he was the true owner of the vehicle
although it had been registered and licensed in Patricia’s
name. As this Court explained in Rakas v. Illinois, No. 77-
5781 (December 5, 1978), the only persons entitled to chal-
lenge the legality of a search are those whose constitutionally
protected expectations of privacy have been violated. Peti-
tioner’s testimony that he had provided the money to purchase
the car so that Patricia could use it to store and transport
narcotics for him did not establish that he had a legitimate
constitutionally protected expectation of privacy in the vehi-
cle. Petitioner admitted that he had only driven the car on
two or three occasions and that Patricia generally kept the
car at her apartment and had its use (Tr. 159). Since peti-
tioner allowed Patricia to purchase the car, register it in her
own name, and have it under her control from day to day, the
fact that he had provided the purchase price so that the car

10

2. Petitioner also contends (Pet. 31-43) that the
trial judge erred in refusing to recuse himself.
During a pretrial hearing on a motion to reduce
Gutierrez-Sanchez’s bail, Gutierrez-Sanchez argued
that the government’s case against him was so weak
that he had little incentive to flee (Tr. 79-81). In
support of that argument, he offered an affidavit in
which petitioner averred that if he were tried first,
he would then testify at Gutierrez-Sanchez’s trial and
exculpate him (Tr. 84-85). The trial judge denied
the motion, stating that he had “reviewed this case
and all of the pleadings in the case and I have got
to say to be truthful with you, that I think [Gutierrez-
Sanchez is] going to run” (Tr. 83). The trial judge
also stated that although he had not seen petitioner’s
affidavit, “frankly, to be truthful with you, I wouldn’t
care what [petitioner] said in an affidavit. I wouldn’t
believe him if he said on a stack of bibles” (Tr.
87). The court then cautioned Gutierrez-Sanchez’s
counsel about resting his defense on petitioner’s testi-
mony, stating that as a witness petitioner “is going
to hurt you more than he’s going to help you”
(Tr. 88).

would be available to carry narcotics did not allow him to
claim a legitimate expectation of privacy. See United States
v. McConnell, 500 F.2d 347 (5th Cir. 1974) (defendant who
permitted and paid for rental of car for co-defendant not
entitled to challenge search) ; cf. United States v. Burke, 506
F.2d 1165 (9th Cir. 1974), cert. denied, 421 U.S. 915 (1975)
(defendant who claimed he had paid for van that was regis-
tered in his brother’s name held entitled to challenge search
because his frequent use gave him a legitimate expectation
of privacy).

11

Shortly thereafter, petitioner filed a motion pursu-
ant to 28 U.S.C. 144° for recusal on the grounds that
the trial judge’s comments demonstrated bias against
petitioner.’ After a hearing the trial judge denied
the motion, ruling that “I know whether or not I’m
prejudiced against somebody or I’m not, and I think
I’m the only one who does know that, and I’m cer-
tainly not prejudiced against anybody” (Tr. 109).
He also emphasized that petitioner was being tried by
a jury, and that his own role in the trial of the case
would be a limited one, since it was his policy not to
comment on the evidence, to question witnesses, or
otherwise to take an active role at trial (Tr. 109-110).

The court of appeals concluded (Pet. App. 15) that
the trial judge’s remarks at the bail hearing had
been “ill-advised, and are not condoned,” but it af-
firmed the denial of the recusal motion on the
grounds that petitioner had not established any extra-
judicial source of prejudice, nor shown that the judge

°28 U.S.C. 144 provides in pertinent part:

Whenever a party to any proceeding in a district court
makes and files a timely and sufficient affidavit that the
judge before whom the matter is pending has a personal
bias or prejudice either against him or in favor of any
adverse party, such judge shall proceed no further there-
in, but another judge shall be assigned to hear such
proceeding.

* Petitioner’s affidavit also alleged on information and be-
lief that the judge had stated he intended to impose the maxi-
mum sentence permitted if petitioner was convicted. The
transcript demonstrated that the judge made no such remarks
(see Pet. App. 21-22), and petitioner does not now rely on
that allegation.

12

would be affected by his initial assessment of peti-
tioner’s credibility and “close his eyes and ears to
other evidence” (Pet. App. 19-21).

Petitioner apparently concedes that disqualifying
prejudice must stem from an extrajudicial source,
United States v. Grinnell Corp., 384 U.S. 563, 583
(1966); Berger v. United States, 255 U.S. 22, 23
(1921), but he urges (Pet. 33) that “the conclusion
by the Court of Appeals that the trial court’s bias
was not from an extrajudicial source is wholly with-
out support in the record below,” because the only
materials filed at that time were “the accusatory
pleadings of the government.”

The record provides no support for this contention.
At the hearing on Gutierrez-Sanchez’s bail, the dis-
trict judge stated that he had reviewed everything
filed so far in the case (Tr. 83, 87). He indicated
that he had carefully gone over the records of
Gutierrez-Sanchez’s three prior bail review proceed-
ings before the magistrate, another district judge,
and the court of appeals (Tr. 83-84, 87; R. 1, 14,
16).* Additionally, on September 22, 1976, the gov-
ernment had filed two factual affidavits describing
the evidence against petitioner and Gutierrez (R.
128-131). The court of appeals correctly concluded
that petitioner had provided no reason to believe that
the trial judge’s opinion of petitioner’s credibility
was not based upon the record in the case before him,
and accordingly that he was not required to recuse
himself.

s“R.” refers to the record filed in the court of appeals.

13

Petitioner also argues (Pet. 34-40) that the district
court erred in failing to consider his recusal motion
in light of 28 U.S.C. 455, which, he contends (Pet.
36), is “self-activating” and requires less substantia-
tion than a motion under Section 144. Petitioner
based his motion solely on Section 144, and he never
urged either court below to consider his claim under
Section 455. Since this claim was never advanced
in the courts below, it is not a proper basis for review
by this Court. United States v. Lovasco, 431 U.S.
783, 788 n.7 (1977). In any event, there is no rea-
son why the result would be any different under Sec-
tion 455 than under Section 144, since Section 455
did not eliminate the extrajudicial source require-
ment for disqualification based on bias or prejudice.
See King v. United States, 576 F.2d 432, 487 (2d
Cir. 1978); United States v. Wolfson, 558 F.2d 59,
62 (2d Cir. 1977). Accordingly, petitioner’s motion
to disqualify Judge Thompson was properly denied
under any statutory test.

14
CONCLUSION
The petition for a writ of certiorari should be :
denied.
Respectfully submitted.

WADE H. McCREE, JR.
Solicitor General

PHILIP B. HEYMANN
Assistant Attorney General

ROBERT J. ERICKSON
ANDREW GORDON
Attorneys
JANUARY 1979

N vo 8. GOVERNMENT PRINTING Office; 1978 263994 250

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1793%3A2. Public record. Not legal advice.