# Petition — United States v. Conway

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 448 U.S. 902

## Text

+ 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0883%3A1. Public record. Not legal advice.