Petition — United States v. Conway

+ ee.

Suprrme Court, J. &

, FILED

79-393 |

SEP 7 1979

No.

RF IR., CLERK

“-

In the Supreme Court of the United States

OCTOBER TERM, 1978

UNITED STATES OF AMERICA, PETITIONER

Vv.

MICHAEL J. CONWAY

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

WADE H. MCcCREE, Jr.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

MARK I. LEvy

Assistant to the Solicitor General

JANIS H. Kockritz

Attorney

Department of Justice

Washington, D.C. 20530

Page

ee 1

a ie SO On a 1

ee 2

ET Ch 2

Reasons for granting the petition —................. 5

J aera he SSUES COR Stes dette al 11

Pe REN edt cece ee la

Pe 2a

PE ee 15a

CITATIONS

Cases:

Alderman v. United States, 394 U.S. 165.. 5

Brown v. United States, 411 U.S. 223... 8,9

Jones v. United States, 362 U.S. 257... 8, 10

Katz v. United States, 389 U.S. 347 _........ 5

Rakas v. Illinois, No. 77-5781 (Dee. 5,

I ee ce 5, 6, 7,8

United States v. Archbold-Newball, 554

F.2d 665, cert. denied, 434 U.S. 1000.... 8

United States v. Bruneau, 594 F.2d 1190.. 8

United States v. Chadwick, 433 U.S. 1...... 5

United States v. Crowell, 586 F.2d 1020,

cert. denied, No. 78-1022 (Mar. 19,

PR GLANS 2 a 9

United States v. Emery, 541 F.2d 887... 9

United States v. Evans, 572 F.2d 455,

cert. denied, No. 78-5068 (Oct. 2,

eS 9

II

Cases—Continued Page

United States v. Galante, 547 F.2d 733,

cert. denied, 481 U.S. 969 ..................... 8,9

United States v. Hunter, 550 F.2d 1066... 9

United States v. Jackson, 585 F.2d 653..... 7,9

United States v. Jeffers, 342 U.S. 48 -....... 6

United States v. Lisk, 522 F.2d 228, cert.

denied, 432 U.S. 1078, subsequent opin-

OR, He ne SO hee ectecnaicinns: 7,9

United States v. McCambridge, 551 F.2d

RU diate ccastibvaibaraas a depeaaciansseuinentetien ities 8

United States v. Miller, 425 U.S. 435 -..... 5

United States v. Moore, 562 F.2d 106, cert.

co BR eer ne ee ee 9

United States v. Pringle, 576 F.2d 1114... 8-9

United States v. Sacco, 436 F.2d 780, cert.

CT, GG AE TO. I onesie cecniicicconinestnte 8

United States v. Smith, 550 F.2d 277, cert.

CUOMO, IG SE, FG vcr ticstntcirenine 9

United States v. Wilson, 536 F.2d 883,

cert. denied, 429 U.S. 982 ...................... 9

Warden v. Hayden, 387 U.S. 294 _........... 5

Constitution and statutes:

United States Constitution, Fourth Amend-

I es es ae eee 5, 6, 8, 10

Be Te SE iecchituKeel miceomanereonete 3

ER 8 RS PARR RRR Renae kt ean OREN ct 2,4

In the Supreme Court of the United States

OCTOBER TERM, 1978

No.

UNITED STATES OF AMERICA, PETITIONER

Vv.

MICHAEL J. CONWAY

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

The Solicitor General, on behalf of the United

States, petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for

the Ninth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. B, infra,

2a-14a) is reported at 595 F.2d 1157. The order of

the district court (App. A, infra, 1a) is not reported.

JURISDICTION

The judgment of the court of appeals was entered

on April 27, 1979. A timely petition for rehearing

was denied on July 10, 1979 (App. C, infra, 15a). On

(1)

2

August 1, 1979, Mr. Justice Rehnquist extended the

time for filing a petition for a writ of certiorari to

and including September 8, 1979. The jurisdiction

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

QUESTION PRESENTED

Whether a defendant can, solely on the basis of

a claimed possessory interest in contraband narcotics

seized during the search of a co-defendant’s suitcase,

obtain suppression of the contraband at his trial for

conspiracy on the ground that the search violated the

Fourth Amendment.

STATEMENT

Respondent was indicted for conspiring to possess

cocaine with intent to distribute it, in violation of

21 U.S.C. 846. The district court suppressed the co-

caine as the product of an unlawful search, and the

court of appeals affirmed by a divided vote.

1. On March 1, 1978, local narcotics detectives in

Miami, Florida, notified Drug Enforcement Admin-

istration agents at the San Francisco airport that,

based on their observations in the Miami airport,

they suspected respondent and co-defendant Carlo

J. Mazzelli of smuggling drugs. They informed the

DEA agents that respondent and Mazzelli were

travelling together and would soon be arriving in

San Francisco on a specified transcontinental flight

(App. B, infra, 2a-3a; Tr. 11-13)." The agents then

1 As used in this petition, “Tr.” refers to the transcript

of the suppression hearing of May 15, 1978, and “R.” refers

to the record in the court of appeals.

3

ran a check on respondent and Mazzelli with the DEA

Intelligence Center in Los Angeles and determined

that respondent was a suspected narcotics violator

in the San Diego area (R. 57; Tr. 14). The DEA

agents also contacted a deputy from the San Mateo

County Sheriff’s Office stationed at the San Fran-

cisco airport, who informed them that two traffic

warrants were outstanding for Mazzelli’s arrest (R.

60; Tr. 15-16, 76, 77, 79).

Three DEA agents went to meet the designated

flight arriving from Miami. Respondent and Mazzelli

departed the plane separately and gave the appear-

ance that they were not travelling together (App. B,

infra, 3a; Tr. 16). In the baggage claim area Maz-

zelli surreptitiously passed respondent a note, and

they exchanged a few words behind a pillar (R. 57;

Tr. 17). Each man then claimed his own piece of

luggage and left the baggage area separately (R.

57; Tr. 18).

Mazzelli was thereupon approached by a DEA

agent and the deputy sheriff, who advised him that

he was under arrest on the outstanding warrants and

that he would have to accompany them to the sheriff’s

office at the airport (R. 60-61; Tr. 81-83). Subse-

quently the suitcase that Mazzelli had been carry-

ing was searched and was found to contain approxi-

mately seven pounds of cocaine. The officers seized

the cocaine, and Mazzelli was placed under arrest by

the DEA agent (R. 63; Tr. 91-94).

2 Mazzelli was indicted for possession of cocaine with in-

tent to distribute it, in violation of 21 U.S.C. 841, and con-

4

In the meantime, the other DEA agents approached

respondent as he left the baggage claim area. The

agents identified themselves and asked to speak with

him (R. 58; Tr. 18). After some protest, respon-

dent accompanied the agents to a vacant office at the

airport, where he was questioned about his associa-

tion with Mazzelli (R. 58; Tr. 19, 22-23). When the

agents questioning respondent were informed that

cocaine had been found in Mazzelli’s suitcase, they

so advised respondent, who replied ‘You'll be ar-

resting me, then, for conspiracy?” (R. 58; Tr. 28).

Respondent was then placed under arrest.

2. Respondent and co-defendant Mazzelli moved

to suppress the evidence obtained in the search of

Mazzelli’s suitcase (R. 3, 35). After a hearing, the

district court granted the motion as to both defen-

dants, holding that the warrantless search of the suit-

case was unlawful (App. A, infra, la).

8. On the government’s appeal,® a divided panel

of the court of appeals affirmed. The court held that

respondent’s possessory interest in the seized cocaine

entitled him to challenge the search of the suitcase.*

spiracy, in violation of 21 U.S.C. 846. Mazzelli is not a re-

spondent to this petition.

3 The government appealed only on the question of respon-

dent’s standing (App. B, infra, 2a, 3a).

4The government conceded that respondent had a posses-

sory interest in the cocaine (App. B, infra, 4a-5a, 9a). Re-

spondent also filed an affidavit claiming that he had purchased

the suitcase (id. at 4a; R. 82-83), but the district court did not

resolve the question and the court of appeals did not rely on

respondent’s claim of ownership of the suitcase in ruling in

his favor.

5

Judge Bonsal dissented on the ground that respon-

dent’s possessory interest in the cocaine established

standing only as to the seizure of the evidence but

not as to the search of the suitcase.

REASONS FOR GRANTING THE PETITION

This case presents an important and recurring

question regarding the scope of the Fourth Amend-

ment.’ The court of appeals’ decision is inconsistent

with recent decisions of this Court and creates a

conflict among the circuits. Accordingly, review by

this Court is warranted.

1. It is well settled that the Fourth Amendment

protects individuals from unreasonable invasions of

their legitimate expectations of privacy. See, e.9.,

Rakas v. Illinois, No. 77-5781 (Dee. 5, 1978), slip

op. 15; United States v. Chadwick, 433 U.S. 1, 11

(1977) ; United States v. Miller, 425 U.S. 435, 440

(1976) ; Alderman v. United States, 394 U.S. 165,

179 n.11 (1969) ; Katz v. United States, 389 U.S. 347

(1967); Warden v. Hayden, 387 U.S. 294, 304

(1967). “‘Fourth Amendment rights are personal

rights which, like some other constitutional rights,

may not be asserted vicariously.’” Rakas v. Illinois,

supra, slip op. 5, quoting Alderman v. United States,

supra, 394 U.S. at 174.° Accordingly, “[a] person

°In Rakas v. Illinois, No. 77-5781 (Dec. 5, 1978), slip op.

2 n.1, the Court found it unnecessary to reach the question

whether a property interest in the items seized is an adequate

ground for standing to object to the underlying search.

®° The Court in Rakas abandoned the concept of “standing”

under the Fourth Amendment, stating that “the better

6

who is aggrieved by an illegal search and seizure

only through the introduction of damaging evidence

secured by a search of a third person’s premises or

property has not had any of his Fourth Amendment

rights infringed. Alderman, supra, at 174.” Rakas

v. Illinois, supra, slip op. 5. :

The court of appeals’ decision in this case—that

an unlawful search of a third-party’s property vio-

lates the defendant’s Fourth Amendment rights solely

because he claims a possessory interest in the items

seized during the search—cannot be reconciled with

these principles. While the defendant is entitled to

challenge the legality of the seizure,’ he has no in-

terest cognizable under the Fourth Amendment that

allows him to contest the lawfulness of the search of

another person’s property.* As then-Judge Stevens

analysis forthrightly focuses on the extent of a particular

defendant’s rights under the Fourth Amendment, rather than

on any theoretically separate, but invariably intertwined con-

cept of standing” (slip op. 10-11). In this analysis the rele-

vant inquiry is “whether the disputed search and seizure has

infringed an interest of the defendant which the Fourth

Amendment was designed to protect” (id. at 12).

7 Petitioner has not attacked the seizure of the cocaine, but

rather has focused exclusively on the antecedent search. In

any event it is evident that, once the suitcase had been

searched, the seizure of the cocaine in plain view was en-

tirely proper.

8The holding of United States v. Jeffers, 342 U.S. 48

(1951), is not to the contrary. The defendant in Jeffers was

found to have standing because of his interest in the premises

searched as well as in the property seized. See Rakas v. /Ili-

nois, supra, slip op. 7. As the courts of appeals have recog-

nized, the defendant’s interest in the seized narcotics did not

7

explained in United States v. Lisk, 522 F.2d 228,

230 (7th Cir. 1975), cert. denied, 423 U.S. 1078 (1976)

(footnotes omitted) :

There is a difference between a search and

a seizure. A search involves an invasion of

privacy; a seizure is a taking of property. The

owner of a chattel which has been seized cer-

tainly has standing to seek its return. It does

not necessarily follow that he may also object

to its use as evidence * * *,

Petitioner’s right to challenge the search should be

no different here than if the officers had obtained

a warrant to search Mazzelli’s suitcase (see App.

B, infra, 9a (Bonsal, J., dissenting) ) or if Mazzelli

had consented to the search (see United States v.

Lisk, supra, 522 F.2d at 230 n.5). The court of ap-

peals erred in failing to differentiate between the con-

stitutionally distinct elements of the search and the

seizure.°

by itself establish his standing to challenge the search. See,

e.g., United States v. Jackson, 585 F.2d 6538, 657 n.5 (4th Cir.

1978) ; United States v. Lisk, 522 F.2d 228, 2338 (7th Cir.

1975), cert. denied, 423 U.S. 1078 (1976). In any event, more

recent decisions of this Court cast substantial doubt on the

continued validity of a rule that allows a defendant to chal-

lenge a search solely because of his interest in the items seized.

®The court of appeals was also incorrect in concluding

(App. B, infra, 6a) that “[w]hen the purpose of the search is

the discovery and seizure of certain property it is against the

property and those laying claim to it that the search is

directed. * * * [I]t would seem plain that the principal

grievant [of the unlawful search] is the victim of the seizure

that was the very purpose of the search.” The Court has

expressly rejected this “target” theory. Rakas v. Illinois,

supra, slip op. 5-9.

8

2. The court of appeals also erred in allowing an

asserted possessory interest in contraband to serve

as the basis of respondent’s Fourth Amendment claim.

This Court has emphasized that only legitimate ex-

pectations of privacy can give rise to rights under

the Fourth Amendment. See, e.g., Rakas v. Illinois,

supra, slip op. 18 n.9, 15 n.12; Brown v. United

States, 411 U.S. 223, 230 n.4 (1973) ; Jones v. United

States, 362 U.S. 257, 267 (1960). Thus, the Fourth

Amendment does not recognize a legitimate posses-

sory interest in stolen property, and a person who is

in wrongful possession cannot maintain a Fourth

Amendment challenge to a search and seizure involv-

ing such property. See Rakas v. Illinois, supra, slip

op. 13 n.9; Brown v. United States, supra, 411 U.S.

at 230 n.4. See also, e.g., United States v. McCam-

bridge, 551 F.2d 865, 870 n.2 (1st Cir. 1977) ; United

States v. Galante, 547 F.2d 733, 739-740 (2d Cir.

1976), cert. denied, 431 U.S. 969 (1977); United

States v. Sacco, 436 F.2d 780, 784 (2d Cir.), cert.

denied, 404 U.S. 834 (1971).

As in the case of stolen property, possession of

contraband narcotics similarly cannot support a

legitimate privacy interest under the Fourth Amend-

ment. Since, by definition, contraband may not law-

fully be owned or possessed, no one can have a legiti-

mate proprietary or possessory interest in it. See

United States v. Archbold-Newball, 554 F.2d 665,

677-678 (5th Cir.), cert. denied, 434 U.S. 1000

(1977). See also, e.g., United States v. Bruneau,

594 F.2d 1190, 1194 n.6 (8th Cir. 1979); United

9

States v. Pringle, 576 F.2d 1114, 1119 (5th Cir.

1978) ; United States v. Moore, 562 F.2d 106, 111

(1st Cir. 1977), cert. denied, 435 U.S. 926 (1978);

United States v. Emery, 541 F.2d 887, 889-890 (1st

Cir. 1976). Rather, such an asserted interest is

“totally illegitimate” (Brown v. United States. supra,

411 U.S. at 230 n.4). Hence, regardless of whether

a lawful interest in seized property would suffice to

permit a defendant to challenge the validity of the

antecedent search that uncovers the property, the

court of appeals in this case improperly allowed re-

spondent to seek suppression on the basis of his illicit

interest *.. the cocaine.

3. The decision of the court of appeals creates a

conflict in the circuits. Contrary to the court’s ruling

here, the other circuits that have addressed the issue

have uniformly held that a defendant’s possessory

interest in items seized does not entitle him to object

to the search of property in which he had no reason-

able expectation of <= rivacy.”” In reaching the op-

10 United States v. Crowell, 586 F.2d 1020, 1026 (4th Cir.

1978), cert. denied, No. 78-1022 (Mar. 19, 1979); United

States v. Jackson, 585 F.2d 653, 656-659 (4th Cir. 1978);

United States v. Evans, 572 F.2d 455, 486 (5th Cir.), cert.

denied, No. 78-5068 (Oct. 2, 1978) ; United States v. Hunter,

550 F.2d 1066, 1074-1075 (6th Cir. 1977); United States v.

Smith, 550 F.2d 277, 283 (5th Cir.), cert. denied, 434 U.S.

841 (1977) ; United States v. Galante, 547 F.2d 733, 736-740

(2d Cir. 1976), cert. denied, 431 U.S. 969 (1977); United

States v. Lisk, 522 F.2d 228, 230-231 (7th Cir. 1975), cert.

denied, 423 U.S. 1078 (1976), subsequent opinion, 559 F.2d

1108, 1111 (7th Cir. 1977). See also United States v. Wilson,

536 F.2d 883, 885 (9th Cir.), cert. denied, 429 U.S. 982

(1976).

10

posite conclusion the court of appeals in this case ex-

pressly rejected this consistent line of authority (App.

B, infra, 6a).

4. In the government’s pending petition for a writ

of certiorari in United States v. Salvucci, No. 79-

244 (filed Aug. 14, 1979), we have asked the Court to

decide the continued validity of the “automatic stand-

ing” rule of Jones v. United States, 362 U.S. 257

(1960)."° The instant case, like Salvucci, presents

issues concerning the vicarious assertion of Fourth

Amendment rights by defendants whose own ryunstitu-

tional rights have not been infringed. In particular,

both cases raise the issue whether a possessory inter-

est in the items seized—either actual or imputed—is

sufficient to permit a Fourth Amendment challenge

to the search that discloses them. See Petition for

a Writ of Certiorari, United States v. Salvucci, supra,

at 9 n.8."% Because of the relation between Salvucci

and the instant case, the Court may deem it appfo-

priate to consider the cases in tandem.

11 We are providing to respondent’s counsel a copy of the

government’s petition in Salvucci.

12 The court of appeals in the present case relied on the

theory of the “automatic standing” rule in reaching its con-

clusion that respondent had standing (App. B, infra, 7a).

11

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

WADE H. McCREE, Jr.

Solicitor Gereral

PHILIP B. HEYMANN

Assistant Attorney General

MARK I. LEvy

Assistant to the Solicitor General

JANIS H. KOCKRITZ

Attorney

SEPTEMBER 1979

la

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE

NORTHERN DISTRICT OF CALIFORNIA

No. CR. 78-132 CFP

UNITED STATES OF AMERICA, PLAINTIFF

v.

MICHAEL J. CONWAY and

CARLO J. MAZZELLI, DEFENDANTS

ORDER GRANTING MOTION

TO SUPPRESS EVIDENCE

IT IS HEREBY ORDERED that the Defendants’

Motion to Suppress as evidence the contents of de-

fendant Mazzelli’s suitcase obtained as a result of a

warrantless search is granted. United States v. Chad-

wick, 433 U.S. 1 (1977).

DATED: & Sep. 1978.

Cecil F. Poole

United States District Judge

2a

APPENDIX B

UNITED STATES COURT OF APPEALS

NINTH CIRCUIT

No. 78-2280

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT

Vv.

CARLO J. MAZZELLI and

MICHAEL J. CONWAY, DEFENDANTS-APPELLEES

April 27, 1979

Appeal from the United States District Court for

the Northern District of California.

Before MERRILL and CHOY, Circuit Judges,

and BONSAL,* District Judge.

MERRILL, Circuit Judge:

The sole issue presented by this appeal is whether

Conway’s Fourth Amendment rights were violated

by the search of a suitcase in the possession of a

codefendant, and the seizure of cocaine found in it,

so as to give Conway standing to move to suppress

the cocaine as evidence.

On March 1, 1978, law enforcement officers in

San Francisco were notified by officers in Miami,

Florida, that Conway and one Mazzelli were sus-

* Honorable Dudley B. Bonsal, Senior United States District

Judge of the Southern District of New York, sitting by

designation.

3a

pected of smuggling drugs and could be expected to

arrive in San Francisco on a particular flight. On

their arrival, they gave the appearance of traveling

separately. Officers approached them separately, and

detained and questioned them separately. Mazzelli

was arrested on outstanding traffic warrants. His

suitcase was searched and cocaine was discovered.

Conway was then arrested.

In due course, Mazzelli was indicted on charges

of possession and conspiracy, and Conway was in-

dicted for conspiracy. Mazzelli moved to suppress

the cocaine as the fruit of an unlawful search. Con-

way joined in the motion. After a hearing, the mo-

tion was granted as to both defendants. The govern-

ment appeals. The appeal as to Mazzelli has been

dropped, as the government now concedes that the

search was unlawful. The appeal is pressed as to

Conway upon the sole ground that Conway lacked

standing to move to suppress, in that no Fourth

Amendment right of his was violated by the search

of Mazzelli’s suitcase.

The grounds on which Conway asserts standing

came to light in the course of hearings on the de-

fendants’ motions, including that of Mazzelli to sup-

press the evidence. The greater part of the hearings

was taken up with argument and testimony in sup-

port of the government’s position that the search was

a lawful inventory search. Only after it became ap-

parent that the court was convinced to the contrary

did the question arise whether Conway’s Fourth

Amendment rights, as well as those of Mazzelli, were

violated.

4a

Conway asserted standing on two grounds. First,

he filed an affidavit in which he stated:

“At the time of the search of the luggage I

had a possessory and proprietary interest in said

luggage in that I purchased it.

I affirm that I had a reasonable expectation

of privacy as to the luggage and its contents at

all times and that this expectation was violated

by the police conduct in this case.”

Mr. Swenson, counsel for the government, ques-

tioned this statement, saying that “Now [Conway]

has filed a belated affidavit stating that he bought

that suitcase. [Thus] he has alleged a possessory in-

terest. I would request, however, that the court would

require him to make—to put on the record how and

under what circumstances he bought that.” The dis-

trict judge responded, “No, I’m not going to do any

such thing.”

Second, Conway claimed a possessory interest in

the cocaine that was seized. It would appear that

government counsel, given the government’s theory of

the case, could not avoid conceding that Conway in-

deed did have a connection with the cocaine amount-

ing to a possessory interest:

“THE COURT: I’m not sure why [Conway]

was even arrested.

MR. SWENSON: He was arrested because

seven pounds of cocaine was found in Mr. Maz-

zelli’s suitcase.

THE COURT: On the theory that he had

some connection with it.

5a

MR. SWENSON: Yes, on the basis that he

had been on—

THE COURT: If that is so, if that is the

government’s position, that the possession of

contraband by Mazzelli was shared in to some

extent by Conway, then, the government can

concede that Conway has an interest in it.

MR. SWENSON: Well, his fingerprints were

on it, your honor.

THE COURT: Well, that’s all right. If his

fingerprints are on it, the government concedes

that there was some interest he had, and I think

that is sufficient.

MR. SWENSON: And, if he wants to stipu-

late to that possessory interest—

* * * x *

MR. PADILLA [Conway’s counsel]: We’ll

stipulate for the interest that Mr. Conway has.

THE COURT: For the purpose of this mo-

tion.

MR. KENNEDY: [Mazzelli’s counsel]: Yes.

MR. LANG [Conway’s co-counsel]: Yes.

MR. PADILLA: Yes.

MR. SWENSON: Can we get a ruling on the

motion to sever, also?”

On appeal, the government asserts that the court

erroneously granted Conway’s motion to suppress on

the ground of automatic standing under Jones v.

United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d

697 (1960). The court’s reasoning is not clear; and

no findings were made. If the court was in fact re-

lying on automatic standing, this was error. Auto-

matic standing is available only to one charged with

a crime of which possession is an essential element,

6a

and conspiracy is not such a crime. United States

v. Pruett, 540 F.2d 995, 1004 (9th Cir. 1976),

cert. denied, sub nom. Temple v. United States, 429

U.S. 1063, 97 S.Ct. 790, 50 L.Ed.2d 780 (1977). More-

over, the court may well have been in error in deny-

ing the government the right to examine Conway

respecting his ownership of the suitcase. Neverthe-

less, we affirm the judgment below, on the ground

that Conway established actual (as distinguished

from automatic) standing to contest the search and

seizure.

The court in Jones v. United States, supra, states

the basis for standing under Rule 41(e) of the Fed.

R.Crim.P.: “In order to qualify as a ‘person ag-

grieved by an unlawful search or seizure’ one must

have been a victim of a search or seizure, one against

whom the search was directed, as distinguished from

one who claims prejudice only through the use of evi-

dence gathered as a consequence of a search or seizure

directed at someone else.” 362 U.S. at 261, 80 S.Ct.

at 731.

When the purpose of the search is the discovery

and seizure of certain property it is against the

property and those laying claim to it that the search

is directed. If, in pursuit of the property, intrusion

has been made upon the privacy of others, those others

have also achieved standing. But it would seem plain

that the principal grievant is the victim of the seiz-

ure that was the very purpose of the search.’

1 Judge Bonsal in his dissent cites authority that would

seem to hold to the contrary. To the extent it does we must

respectfully disagree.

Ta

The court in Jones recognizes both bases for stand-

ing in what it terms “the conventional standing re-

quirement,” 362 U.S. at 262, 80 S.Ct. 725: “that

the movant claim either to have owned or possessed

the seized property or to have had a substantial pos-

sessory interest in the premises searched.” Jd. at

261, 80 S.Ct. at 731. The court ruled that the de-

fendant had standing in both respects—through an

interest in the seized property and a sufficient in-

terest in the premises searched. It was in connection

with the former holding that the concept of what

has come to be called “automatic standing” was an-

nounced. This concept is itself founded on the propo-

sition that a possessory interest in that which was

seized confers standing to challenge the seizure.’ This

same proposition has been recognized in later cases

dealing with the concept of automatic standing.*

2 The dilemma from which the rule provided an escape was

“that possession both convicts and confers standing.” 362

U.S. at 263, 80 S.Ct. at 732. The court concluded, “In cases

where the indictment itself charges possession, the defendant

in a very real sense is revealed as a ‘person aggrieved by an

unlawful search and seizure.’ ”’ Jd. at 264, 80 S.Ct. at 733.

3In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967,

19 L.Ed.2d 1247 (1968) a suitcase containing evidence in-

criminating the defendant was found in the basement of a

house belonging to another. On motion to suppress the de-

fendant testified that the suitcase was his. The testimony he

gave was later admitted against him during his trial. The

Court held that testimony given by a defendant on motion

to suppress in order to establish his standing as one aggrieved

by the search could not be admitted against him at trial on

the issue of guilt or innocence. The court stated: “[t]he

only, or at least the most natural, way in which [the defend-

8a

The Supreme Court’s latest discussion of standing

to suppress the fruits of an unlawful search and

seizure is found in Rakas v. Illinois, —— U.S. ;

99 S.Ct. 421, 58 L.Ed.2d 387 (1978). That case re-

examined the second portion of Jones dealing with

standing based on an interest in the premises searched

and the standards thai should apply in such cases.

However, in substance it reaffirmed the proposition

recognized in Jones that a vossessory interest in that

which was seized confers standing.

The ceurt first emphasizes the failure of the pe-

titioner to assert a claim of ownership over the items

seized U.S. at , nl, 99 S.Ct. 421. To us

this implicitly recognizes that a possesory interest

in the evidence seized confers standing to challenge

the seizure. This implicit recognition is later ex-

plicitly noted. After suggesting that a “casual visi-

tor” should not be able to contest the lawfulness of a

search, the Court states: “This is not to say that

such visitors could not contest the lawfulness of the

seizure of evidence or the search if their own prop-

erty were seized during the search.” Id. at , 99

S.Ct. at 430.

ant] could found standing to object to the admission of the

suitcase was to testify that he was its owner.” 390 U.S. at

391, 88 S.Ct. at 974.

In Brown Vv. United States, 411 U.S. 228, 228, 93 S.Ct.

1565 1569, 36 L.Ed.2d 208 (1978) the court stated: “For

example, under the Simmons doctrine the defendant is per-

mitted to establish the requisite standing by claiming ‘posses-

sion’ of incriminating evidence * * *. Thus, petitioners in

this case could have asserted, at the pretrial suppression

hearing, a possessory interest in [the evidence seized].”

9a.

As we have noted Conway’s possessory interest in

the cocaine was established by stipulation in open

court, invited by the government and not disputed.

This suffices to confer standing to suppress the seized

cocaine.

Judgment affirmed.

BONSAL, District Judge (dissenting) :

I respectfully dissent. The majority holds that

Conway has standing to contest the illegal search of

the suitcase carried by Mazzelli when he arrived at

San Francisco Airport. Implicit in this holding is

that under the Fourth Amendment Conway had a

reasonable expectation of privacy in Mazzelli’s suit-

case because of his uncorroborated statement that he

had a proprietary interest in the suitcase and the

cocaine contained therein, and the fact that his finger-

prints were found on the package of cocaine.

At argument, appellant’s counsel was asked if Mr.

Conway’s Fourth Amendment rights would have been

violated if the Government, having obtained a search

warrant for Mazzelli’s suitcase, had searched it and

found the cocaine. Counsel replied that the situa-

tion would be the same.

The narcotics business has often been characterized

as one of “concealment and guile” and I think that

the holding of the Court constitutes a dangerous

precedent if narcotic traffickers are to be appre-

hended. It suggests to traffickers that they travel in

tandem, each carrying the other’s suitcase, so that

the suitcase of the person apprehended and the con-

10a

traband contained therein always belongs to his as-

sociate. Carried to its extreme, such a practice could

mean that a narcotic trafficker’s maximum risk would

be confiscation of his contraband.

The primary purpose of the exclusionary rule is “to

deter future unlawful police conduct ... .”, United

States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613,

619, 38 L.Ed.2d 561 (1974), and “compel respect

for the constitutional guaranty in the only effective

available way—by removing the incentive to disre-

gard it.” Elkins v. United States, 364 U.S. 206, 217,

80 S.Ct. 1487, 1444, 4 L.Ed.2d 1669 (1960). Not-

withstanding its deterrent purpose, the rule has never

been held to proscribe the use of all illegally seized

evidence in all proceedings or against all persons.

United States v. Calandra, supra, 414 U.S. 348, 94

S.Ct. 618. E.g., Walder v. United States, 437 U.S.

62, 74 S.Ct. 354, 98 L.Ed. 503 (1954) (use of il-

legally seized evidence for impeachment purposes) ;

United States v. Calandra, supra (use of illegally

seized evidence in grand jury proceedings). The ap-

plication of the rule has been and should he restricted

to “those areas where its remedial objectives are

thought most efficaciously served.” United States v.

Calandra, supra, 414 U.S. at 348, 94 S.Ct. at 620.

If Mr. Conway’s rights would be the same notwith-

standing the procurement of a search warrant by

the Government, the remedial purposes of the ex-

clusionary rule would not be “efficaciously served.”

Rather, it would thrust upon law enforcement offi-

lla

cials the unreasonable burden of establishing the

ownership as well as the possession of the suitcase.

The court below proceeded on the assumption that

suppression of the evidence as to Mazzelli (who was

indicted for possession) required suppression as to

Conway (who was indicted for conspiracy only), (“If

I’m in error, then I might as well be in error on both

of them.” [Transcript of May 11, 1978 Hearing,

136-137]). If the court was relying on automatic

standing, this was error. Jones v. United States, 362

U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) ; United

States v. Prueitt, 540 F.2d 995, 1004 (9th Cir. 1976),

cert. denied sub nom. Temple v. United States, 429

U.S. 1063, 97 S.Ct. 790, 50 L.Ed.2d 780 (1977).

Conway was allowed to establish actual standing

by stipulating to a possessory interest in the seven

pounds of cocaine found in Mazzelli’s suitcase and by

swearing in an affidavit that “At the time of the

search I had a possessory and proprietary interest in

said luggage in that I purchased it.” [C.T. 82]. I

believe that the evidence presented is insufficient to

establish Conway’s standing. His prior conduct was

inconsistent with his later claim of ownership. The

record shows that Mazzelli and Conway each carried

a suitcase and each attempted to convey the impres-

sion that they were not traveling together. When

Conway was questioned by DEA agents at the air-

port, he denied knowing Mazzelli, even prior to being

informed of the cocaine seizure. At all times rele-

vant to the search, Conway denied any connection

with Mazzelli, a fortiori with Mazzelili’s suitcase.

12a

Further, the evidence that Conway’s fingerprints were

found on the package of cocaine is not dispositive;

it is equally consistent with his being a coconspirator

(“You'll be arresting me, then, for conspiracy?”)

and has little probative value with regard to his

ownership of the suitcase.

The standing requirement of the exclusionary rule

is premised on the view that the additional benefits

derived from extending the rule to defendants other

than the victim of the search are outweighed by the

“further encroachment upon the public interest in

prosecuting those accused of crime and having them

acquitted or convicted on the basis of all the evidence

which exposes the truth.” Alderman v. United States,

394 U.S. 165, 175, 89 S.Ct. 961, 967, 22 L.Ed.ed

176 (1969). It should be incumbent upon those who

seek application of the rule to clearly demonstrate

their entitlement thereto.* In view of the circum-

stances of the instant appeal, I believe that the mat-

ter should be remanded for a full evidentiary hearing.

The majority concedes that the court below may

have erred in accepting Conway’s uncorroborated as-

sertion as to a “possessory and proprietary interest”

in the suitcase. However, it goes on to affirm the

decision on the ground that Conway established ac-

*“The burden [should rest] . . . upon those who ask

society to ignore trustworthy evidence of guilt, at the expense

of setting obviously guilty criminals free to ply their trade.”

Stone v. Powell, 428 U.S. 465, 500, 96 S.Ct. 3037, 3055, 49

L.Ed.2d 1067 (1976) (Burger, C. J. concurring).

13a

tual standing when he “stipulated” to a possessory

interest in the cocaine.

I do not believe that this “stipulated” possessory

interest is sufficient to establish actual standing under

the circumstances. See, Brown v. United States, 411

U.S. 228, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1978);

United States v. Smith, 550 F.2d 277 (5th Cir.)

cert. denied sub nom. Wallace v. United States, 434

U.S. 841, 98 S.Ct. 188, 54 L.Ed.2d 105 (1977). In

United States v. Lisk, 522 F.2d 228 (7th Cir. 1975),

cert. denied, 423 U.S. 1078, 96 S.Ct. 865, 47 L.Ed.2d

89 (1976), law enforcement officials seized in the

trunk an illegal firearm in the course of a concededly

illegal search of an automobile owned by one Hunt.

Lisk, while he had no possessory or proprietary inter-

est in the automobile, had a proprietary interest in

the firearm. He contended that because of his inter-

est, he was entitled to have the firearm suppressed.

Judge (now Justice) Stevens differentiated between a

search and a seizure: “A search involves an invasion

of privacy; a seizure is a taking of property.” 522

F.2d at 230. Judge Stevens then referred to Alder-

man v. United States, supra, which held that “sup-

pression of the product of a Fourth Amendment viola-

tion can be successfully urged only by those whose

rights were violated by the search itself, not by those

who are only aggrieved by the introduction of dam-

aging evidence.” 394 U.S. at 171-72, 89 S.Ct. at

965. See, Rakas v. Illinois, —— U.S. , 99 S.Ct.

421, 58 L.Ed.2d 387 (1978). Judge Stevens held that

Hunt, as owner of the automobile, was the victim of

l4a

the search and therefore had standing to contest the

legality thereof, but Lisk, having neither a possessory

nor proprietary interest in the automobile, did not

have standing. As owner of the firearm, Lisk had

standing only to contest the seizure, not the search.

Since the seizure of the firearm was lawful under

Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18

L.Ed.2d 782 (1967), the firearm was admissible

against Lisk even though it could not be admitted

against Hunt. 522 F.2d at 230-31. Lisk has been

followed by the Second and Fourth Circuits. United

States v. Galante, 547 F.2d 733, 739 n.11 (2d Cir.

1976), cert. denied, 431 U.S. 969, 97 S.Ct. 2930, 53

L.Ed.2d 1066 (1977); United States v. Jackson, 585

F.2d 653, 656-57 (4th Cir. 1978). Therefore I be-

lieve that the stipulation as to Conway’s proprietary

interest in the cocaine was insufficient to establish his

standing to object to the search of Mazzelli’s suitcase.

I would remand the case to the district court for a

full hearing.

l5a

APPENDIX C

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 78-2280

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT

vs.

MICHAEL J. CONWAY, DEFENDANT-APPELLEE

[Filed July 10, 1979]

Before: MERRILL and CHOY, Circuit Judges, and

BONSAL, District Judge

ORDER

In the above case Judge Choy has voted to deny

the petition for rehearing and reject the suggestion

for rehearing en banc; Judge Merrill has voted to

deny rehearing and recommend rejection of the sug-

gestion for rehearing en banc; and Judge Bonsal has

abstained from voting on the petition for rehearing,

but adheres to the position expressed in his dissent.

The full court has been advised of the suggestion

for an en banc hearing, and no judge of the court

has requested a vote on the suggestion for rehearing

en bane. Fed. R. App. P. 35(b).

The petition for rehearing is denied and the sug-

gestion for a rehearing en banc is rejected.

wv U. S. GOVERNMENT PRINTING OFFICE; 1979 299644 61