Opposition — Vaughn v. United States

No. 78-1743

In the Supreme Court of the United States

OcTOBER TERM, 1978

RICHARD J. VAUGHN, PETITIONER

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

Wapr— H. McCrer, JR.

Solicitor General

Puitie B. HEYMANN

Assistant Attorney General

BARRY A. FRIEDMAN

Attorney

Department of Justice

Washington, D.C. 20530

In the Supreme Court of the United States

OcroBpeR TERM, 1978

No. 78-1743

RicHARD J. VAUGHN, PETITIONER

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 original opinion of the court of appeals (Pet. App.

3-9) and the opinion on rehearing (Pet. App. 1-2) are not

reported. The opinion of the district court (Pet. App. 10)

is also not reported,

JURISDICTION

The judgment of the court of appeals on rehearing was

entered on April 20, 1979. The petition for a writ ef

certiorari, was filed on Monday, May 21, 1979. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

(1)

th

QUESTION PRESENTED

Whether the warrantless search of petitioner's suitcase,

abandoned by him in an airport parking lot shortly before

his arrest, violated the Fourth Amendment.

STATEMENT

Alter a jury-waived trial on stipulated facts' in the

United States District Court for the District of Arizona,

petitioner was convicted of possession with intent to

distribute lysergic acid dicthylamide (LSD), in violation

of 21 U.S.C. 841(a)(1). He was sentenced to five years’

imprisonment, all but six months of which was

suspended, to be followed by two years of special parole.

The court of appeals originally reversed the conviction

and remanded for further procéedings (Pet. App. 3-9). On

rehearing, however, the court vacated its prior order and

affirmed the conviction (Pet. App. 1-2).

1. The evidence showed that on September 30, 1976,

petitioner and a companion went to the American

Airlines ticket counter at Sky Harbor International

Airport in Phoenix, Arizona, and sought to purchase

first-class tickets for a flight to Chicago (Tr. 4). The ticket

agent became suspicious of the two men because their

dress, personal appearance gnd mannerisms, and use of

cash to purchase the tickets struck her as “unusual” (Ir.

4-5).

The agent requested petitioner to open his suitcase for

inspection (Tr. 6). Inside, she found a box containing

small packages of a powder-type substance (Ir. 6-7).

When petitioner's companion noticed that the agent was

‘Petitioner stipulated that the evidence adduced at his suppression

hearing would constitute the record tor purposes of his trial.

using the telephone, he asked her not to call the police

(Ir. 7, 14-15). The agent, however, did call the police and

requested petitioner to leave the bag at the ticket counter.

Petitioner then grabbed the bag and ran out of the

terminal (Ir. 7). Police officers soon arrived and began to

search for petitioner (Tr. 18).

As petitioner ran outside the terminal, he left his bag in

the parking lot. He then jumped over a fence, and entered

a car, which sped off (Tr. 20-21). The car was followed by

a police officer and customs inspector, who arrested

petitioner on the airport grounds after a short chase (Tr.

22).

Petitioner was taken to the airport terminal's security

office. The officers soon located the missing bag tn the

parking lot with petitioner’s name tag still on it. The bag

was also taken to the airport security office (Tr. 32).

When petitioner was advised of his constitutional rights

following his arrest, he asked to see a lawyer. The

interview was then terminated (Ir. 47). Petitioner,

however, did not seek to contact counsel or obtain

appointed counsel and later stated that he would answer

questions without counsel being present (Tr. 59). Peti-

tioner then admitted that he owned the suitcase (ihid.).

About two hours after the arrest, a police dog, trained

In detecting narcotics, was brought to the security office

(Ir. 40). When presented with the suitcase, the dog

“alerted,” signaling that narcotics were present (Ir. 41).

Petitioner was asked for the combination to the lock and

gave it to the officers. They then opened the suitcase and

found approximately seven pounds of LSD and a small

amount of marijuana (Tr. 43, 49).

2. The court of appeals initially reversed petitioner's

conviction (Pet. App. 3-9). The court held that) under

United States v. Chadwick, 433 U.S. 1 (1977), the police

officers were required to obtain a warrant before

searching the suitcase. However, the court remanded the

case to the district court for a determination whether the

warrantless search was . justified because petitioner

abandoned the suitcase (Pet. App. 6, 9). On the

government's petition for rehearing, the court vacated its

prior order and affirmed the conviction, holding that

Chadwick does not apply to searches that occurred before

the date of that decision.

ARGUMENT

Petitioner contends that this case is controlled by

United States v. Chadwick, supra, and that the court of

appeals erred in concluding that Chadwick does not apply

retroactively to invalidate the search conducted in this

case.

1. This case is not controlled by Chadwick because

here, unlike in Chadwick, petitioner had abandoned the

suitcase before it was seized and searched by the

government agents.?

As noted above, when petitioner's companion asked

the ticket agent not to call the police, petitioner panicked

and fled from the terminal carrying the suitcase. A police

officer who had been alerted by the ticket agent pursued

petitioner out of.the building. Petitioner crossed into the

airport parking lot, dropped the suitcase, climbed a fence

that separated the parking lot from the main road, and

entered a waiting car. The car then sped off, but petitioner

was arrested after a short chase and was brought to the

airport’s security office. The officers promptly searched

for and discovered the suitcase in the airport parking lot.

"In Chadwick, the yovernment seized the footlocker from the

defendant’s possession. See 433 U.S. at 3-4.

—

Petitioner's actions evidenced his plain intent to

abandon the suitcase containing the contraband. See

United States v. Robinson, 430 &. 2d 1141, 1143 (6th Cir.

1970); Friedman v. United States, 347 k. 2d 697, 704 (8th

Cir.), cert. denied, 382 U.S. 946 (1965). He sought to

elude capture and punishment by discarding the contra-

band among the many parked cars in the airport lot.

Since the suitcase had been intentionally abandoned by

petitioner, the warrantless search and seizure conducted

by the officers did not violate the Fourth Amendment.

See Abel v. United States, 362 U.S. 217, 241 (1960);

Hester v. United States, 265 U.S. 57, 58 (1924).'

2. Even if Chadwick were applicable to this case, the

court of appeals correctly concluded (Pet. App. 2) that the

decision in Chadwick is not retroactive. Accord, United

States v. Stewart, 595 F. 2d 500, 504 & n.7 (9th Cir. 1979)

(per curiam); United States v. Mancillas, 580 F. 2d 1301,

1306-1307 (7th Cir.), cert. denied, No. 78-5480 (Nov.

6, 1978), United States v. Reda, 563 k. 2d 510, 512

(2d Cir. 1977), cert. denied, 435 U.S. 973 (1978);

United States v. Montgomery, 558 Fk. 2d 311, 312 (Sth

‘Even assuming that the suitcase was not abandoned, petitioner

appears to have consented to the search. As noted above (see page

3, supra), petitioner acknowledged during post-arrest questioning

that the impounded suitcase belonged to him (Tr. 59). Thereafter, a

police dog indicated that narcotics were contained inside the suitcase.

One of the police officers then asked petitioner for the combination

to the suitcase’s lock (Tr. 49). Without objection or hesitation,

petitioner gave the officer the combination, the suitcase was opened,

and the contraband discovered (ihid.).

These facts indicated the voluntariness of petitioner's consent to the

search. See United States v. Watson, 423 U.S. 411, 424-425 (1976);

United States v. Mireles, 570 b. 2d 1287, 1291 (Sth Cir. 197%)

(consent implied); United States v. Villarreal, 565 bt. 2d 932, 937 (Sth

Cir. 1978), cert. denied, No. 77-6758 (Oct. 2, 1978) (same). The

fact that petitioner was in custody does not “in itself * * * dem-

onstrate a coerced confession or consent to search.” United States

v. Watson, supra, 423 U.S. at 424,

Cir.), cert. denied, 434 U.S. 927 (1977). While the E1ghth

Circuit has held to the contrary (United States v. Stevie,

582 F. 2d 1175, 1178 n.1 (1978) (en banc), cert. denied,

No. 78-971 (June 25, 1979))* this case is not a suitable

vehicle for resolving the conflict. As discussed above,

petitioner's abandonment of the suitcase and his subse-

quent consent to the search eliminated any need for the

officers to obtain a warrant. In any event, the number of

pending cases involving pre-Chadwick searches is, at this

point, so substantially diminished that the question

whether that decision should be applied retroactively ts

not of sufficient importance to merit plenary review by

this Court.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

WabDE H. McCREE, JR.

Solicitor General

Puitiep B. HEYMANN

Assistant Attorney General

BARRY A. FRIEDMAN

Attorney

Juty 1979

“The question of the retroactivity of Chadwick was not raised in

our petition in Stevie as a ground on which the petition should

be granted.

DOJ-1979-07