Opposition — United States v. Conway

Peres

In the Supreme Court we 14 Wr

OF THE |_MI@HWL RODAK, JR., CLER

United States

Octoser Term, 1978

No. 79-393

UnitTep States or AMERICA,

Petitioner,

VS.

Micuaeu J. Conway,

Respondent.

OPPOSITION TO PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT

THomMas STEEL

Law OFFICES OF

MicHAEL KENNEDY

2424 Pine Street

San Francisco, CA 94115

Attorneys for Respondent

Epmunp J. Lane

P.O. Box 1966

Albuquerque, New Mexico 87103

Of Counsel

BOWNE-PERNAU WALSH ¢ 1045 SANSOME ST. ¢ S.F., CA 94111 © (415) 981-7882

SUBJECT INDEX

Page

ES atresia ae a 1

ED ee a ae 2

Reasons for denying the petition .......................... 3

ata) Ricans pac lea a aa en SNE Cle ll

TABLE OF AUTHORITIES CITED

Cases

Bell v. Bruen, 42 U.S. 160 (1843) .....................0005. 8

Berenyi v. Immigration Director, 385 U.S. 630 (1967) ........ 6

Carruthers v. Reed, 102 F.2d 933 (8th Cir. 1939) .......... 6

Duignan v. United States, 274 U.S. 195 (1926) .............. 9

Graver Mfg. Co. v. Linde Co., 336 U.S. 271 (1949) .......... 6

Hanks v. United States, 388 F.2d 171 (10th Cir. 1968) ...... 7

Helvering v. Hormel, 111 F.2d 1 (8th Cir. 1940) cert. granted

311 U.S. 626, affirmed 312 U.S. 552 (1940) .............. 9

Johnson v. United States, 318 U.S. 189 (1942), rehearing

I I oe on te vs. soc recs (ewe eva cree. »

Langes v. Green, 282 U.S. 531 (1931) ...................... 5

Lawn v. United States, 355 U.S. 339 (1957) ................ 6

Rakas v. Illinois, .... U.S. ...., 58 L.Ed.2d 387 (1978) .... 11

Tucker v. United States, 375 F.2d 363 (8th Cir. 1967), cert.

EO EO ny Pe ee ane a 7

United States v. Atkinson, 297 U.S. 157 (1935) .............. 9

United States v. Benson, 495 F.2d 475 (5th Cir. 1974) ....... 7

United States v. Crowell, 586 F.2d 1020 (4th Cir. 1978) .... 10

United States v. Friedman, 506 F.2d 511 (8th Cir. 1974), cert.

den. 421 U.S. 1004, rehearing denied 423 U.S. 885 ........ 6

United States v. Galante, 547 F.2d 733 (2d Cir. 1976) ...... 10

United States v. Hart, 546 F.2d 798 (9th Cir. 1976 en banc),

count, Gem. OF GAR, EGS (2007) ow. se lec.

i

TABLE OF AUTHORITIES CITED

CasEs

Page

United States v. Hood, 493 F.2d 677 (9th Cir. 1974) ........ 4

United States v. House, 524 F.2d 1035 (9th Cir. 1975) ...... 10

United States v. Jackson, 585 F.2d 653 (4th Cir. 1978) ...... 10

United States v. Johnston, 268 U.S. 220 (1924) ............ 6

United States v. Kahn, 366 F.2d 259 (2d Cir. 1966) ........ 7

United States v. Lovasco, 431 U.S. 783 (1977) .............. 8

United States v. Manton, 107 F.2d 834 (2d Cir. 1938) ...... 6

United States v. McCambridge, 551 F.2d 865 (Ist Cir. 1971) 11

United States v. Page, 302 F.2d 81 (9th Cir. 1976 en banc) .. 4

United States v. Pentado, 463 F.2d 355 (5th Cir. 1972), cert.

Gam, Ge OB, NOPD ors Fed BK Re A ls ke +

United States v. Prueitt, 540 F.2d 995 (9th Cir. 1976) ........ 7

United States v. Smith, 550 F.2d 277 (5th Cir. 1977) ........ 10

United States v. Wilson, 536 F.2d 883 (9th Cir. 1976) ...... 9

Virtue v. Creamery Package Mfg. Co., 227 U.S. 8 (1912) .. 8

Walling v. General Industries Co., 330 U.S. 545 (1947) ...... 5

Weade v. Dichmann, Inc., 337 U.S. 801 (1949) ............ 8

Constitution

United States Constitution, Fourth Amendment .......... 4,10, 11

In the Supreme Court

OF THE

United States

OctosBER TERM, 1978

No. 79-393

Unitep States or AMERICA,

Petitioner,

Vs.

MicHaru J. Conway,

Respondent.

OPPOSITION TO PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT

The Respondent, Michael J. Conway, opposes the peti-

tion for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Ninth Circuit.

QUESTIONS PRESENTED

(1) Was the District Court’s conclusion that Respondent

had a reasonable expectation of privacy clearly erroneous

when measured against all the facts before that court?

(2) Did the Government invite the error complained of

so that it is barred from raising the issue in this Court?

(3) Does the Government’s failure to present to the

District Court the questions of law urged in this Court

foreclose consideration of those questions?

2

(4) Was the seizure of the cocaine and the search of the

package containing it illegal?

STATEMENT OF FACTS

The following Statement of Facts supplements that

found in the Petition for Writ of Certiorari (hereinafter

“Petition”) and the opinion of the Court of Appeals

(Petition 2a-9a).

Respondent Michael Conway and co-defendant Mazzelli

shared a room at the Howard Johnson’s Motel during their

stay in Miami, Florida (C.T. 58, R.T. 11:22"). On March 1,

1978, they went to the Miami International Airport. They

appeared to Miami Police to know and be associated with

each other (C.T. 52-54). Both Mr. Conway and Mr. Mazzelli

boarded the same flight bound for San Francisco. Upon

arrival, both went to the baggage claim area where they

spoke with each other and exchanged a note (R.T. II:17).

At the baggage claim area, Mr. Mazzelli picked up a suit-

ease which had been recently purchased by and belonged

to Mr. Conway (Petition: 4a; C.T. 52).

Both individuals were arrested upon leaving the baggage

claim area since it was suspected that they were smuggling

drugs together from Miami (R.T. I:18-19; Petition: 2a-3a).

Mr. Conway was taken upstairs (R.T. IT: 48-51) to a room

in the terminal building. Mr. Mazzelli was taken to a sep-

arate room. Mazzelli was placed in a locked holding cell

and the suitcase carried by him was retained outside the

*As used herein, “C.T.” refers to the Clerk’s Transcript in the

Court of Appeals. “R.T.I.” refers to the Reporter’s Transcript of the

May 11, 1978 hearing and “R.T.II” refers to the Reporter’s Tran-

script of the May 15, 1978 hearing, both part of the record of the

Court of Appeals.

3

cell by Sheriff’s Deputy Meyer and agents of the Drug

Enforcement Administration (R.T. I: 120-121). The com-

bination lock on that suitcase was pried open by Govern-

ment agents (R.T. II: 115-116). Inside the suitcase was a

smaller metal case bearing another combination lock

(R.T. I1:116). The agents and deputy broke into this

smaller case (R.T.II:119). Inside the smaller case was a

package covered with wrapping paper. This wrapping

paper had Mr. Conway’s fingerprints on it and when opened

was found to contain the cocaine suppressed by the District

Court (R.T. 1:43). The record does not reflect that the

paper had Mr. Mazzelli’s or any other fingerprints on it.

This entire process took about one hour, during which

time Messrs. Conway and Mazzelli were detained without

probable cause (/d., Petition: 3a). At the conclusion of this

hour, Mr. Conway was told that the suitcase had been

broken open and cocaine found. His response was, “You'll

be arresting me then for conspiracy” (R.T.II:23).

REASONS FOR DENYING THE PETITION

1. The essential facts relevant to Respondent Conway’s

Fourth Amendment rights are much more extensive than

described by the Petition and obviate the need to reach

the question therein presented. The entire Petition pro-

ceeds on the assumption that the only fact establishing

Respondent Conway’s right to challenge the instant search

is his possessory interest in the seized cocaine.

The facts before the District Court relevant to Mr.

Conway’s reasonable expectation of privacy, and ignored

by Petitioner, are set forth in the Statement of Facts above

4

and the Court of Appeals’ opinion (Petition: 2a-5a). These

facts demonstrate that Conway and Mazzelli were clearly

associated with each other, having stayed together in

Miami and travelled together from Miami to San Fran-

cisco. Conway was the owner of the suitcase, which he had

recently purchased (Petition 4a, C.T.:52). He shared the

use of the suitcase with his travelling companion and

co-defendant Mazzelli. He retained a “possessory and pro-

prietary interest” in the suitcase throughout this trip and

up to “the time of the search” (Petition: 4a)?.

The Petition ignores these facts, apparently on the basis

that “the district court did not resolve the question and

the court of appeals did not rely on respondent’s claim of

ownership in ruling in his favor” (Petition: 4, n. 4).

However, the District Court simply made a general finding

that given “the facts of this case” the suppression order

should be made as to both defendants (R.T. I:42). The

factual basis was not limited or expressly specified. The

judgment must be given all reasonable inferences in its

favor and a reviewing court will consider all reasonable

bases shown by the record in support of the judgment.

United States v. Hood, 493 F.2d 677, 680 (9th Cir. 1974);

United States v. Hart, 546 F.2d 798 (9th Cir. 1976 en banc),

cert. den. 97 S.Ct. 1155 (1977) ; United States v. Page, 302

F.2d 81, 85 (9th Cir. 1976 en banc).

Moreover, the fact that an appellate court opinion does

not rely on a particular ground for its decision does not

*Since Mr. Conway had a possessory and proprietary interest in

the suitcase, the Government’s proposed distinction between an ille-

gal search and an illegal seizure, as well as its arguments concerning

ownership of contraband alone as a basis for Fourth Amendment

rights, are completely inapplicable to this case.

4)

prevent a party from urging that ground in support of the

decision. On the contrary, the prevailing party retains the

right to urge all grounds in support of the lower court’s

decision. Walling v. General Industries Co., 330 U.S. 545,

047 (1947) ; Langes v. Green, 282 U.S. 531, 538 (1931).

Thus the question presented herein is not whether a

possessory interest in cocaine taken alone gives rise to a

right to challenge a search, but whether this interest in

combination with all the other facts in this case give rise

to a reasonable expectation of privacy by Mr. Conway.

More precisely, the question presented is whether the Dis-

trict Court’s judgment that such an expectation of privacy

existed can be said to be clearly erroneous.

The case at bar presents ample facts to support the

district court’s finding of standing. Conway bought the

suitcase and retained a proprietary interest in the suitcase

at the time of the search. He had an admitted possessory

interest in the contents of the suitease and it was reason-

able to presume he placed those contents in the suitcase.*

He accompanied the person who carried the suitcase

throughout the voyage. He knew the suitcase had a com-

bination lock and since he purchased it, it is reasonable

to assume he knew the combination.* On this totality of

facts, the conclusion that Mr. Conway had a reasonable

expectation of privacy in the suitcase searched can not be

said to be clearly erroneous.

*Conway stayed with Mazzelli in Miami and his fingerprints were

on the package of cocaine inside the locked suitcase.

‘The record does not reflect that Mazzelli knew the combination

to either case and the only fingerprints shown to have been found

inside the locked suitcase were those of Conway, not Mazzelli.

eo

6

(2) Even if the Petition did accurately state the rele-

vant facts, the Court should deny certiorari. This is be-

cause where the primary dispute in a case turns on the

meaning and interpretation of facts and evidence, the case

is inappropriate for certiorari. This is particulariy true

where both lower courts have reached {.1e same conclusion,

as occurred in the case at bar. Berenyi v. Immigration

Director, 385 U.S. 630, 635 (1967); Graver Mfg. Co. v.

Linde Co., 336 U.S. 271, 275 (1949) ; United States v. John-

. Ston, 268 U.S. 220, 227 (1924) (“We do not grant a cer-

tiorari to review evidence and discuss specific facts”).

(3) It is a long settled rule that a party may not raise

an error when he consciously and intentionally failed to

object to the error and led the trial court to believe he was

satisfied. Johnson v. United States, 318 U.S. 189 (1942),

rehearing denied 318 U.S. 801; Lawn v. United States, 355

U.S. 339 (1957); United States v. Manton, 107 F.2d 834,

847-848 (2d Cir. 1938) ; United States v. Friedman, 506 F.2d

d11, 515 (8th Cir. 1974), cert. den. 421 U.S. 1004, rehearing

denied 423 U.S. 885. This prevents parties from, among

other things, adopting one course of procedure and, after

a decision goes against them, obtaining a retrial based on

this procedure. Carruthers v. Reed, 102 F.2d 933, 938 (8th

Cir. 1939).

In the case at bar the Government raised the issue of

standing at the suppression hearing and indicated that a

stipulation as to Conway’s possessory interest in the

cocaine would be factually sufficient to establish his

standing (Petition: 4a-5a; R.T. 1:43-44). When the stipu-

lation was entered, the Government led the court and de-

7

fense counsel to believe it was satisfied with this showing

in support of standing (Jd.). Similarly, when counsel for

Conway submitted an affidavit which alleged further facts

in support of standing, the Government again indicated the

sufficiency of those facts, saying, “Under the Pruitt [sic]

case, he has alleged a possessory interest’.’ The Govern-

ment now argues the insufficiency of the very facts which

it elicited and then accepted as sufficient in the district

court. Such tactics are unfair in that the opposing party

naturally declines to proceed further or put in additional

evidence when the evidence already submitted is said to be

sufficient. The Government should not be allowed to take

advantage of such tactics.

Here the “error” complained of was expressly discussed

in the district court. Petitioner not only failed to object,

but he consciously and intentionally invited the error

through asking for and accepting as sufficient the evidence

of standing. A party cannot object to a ruling that he or

she invited. Tucker v. United States, 375 F.2d 363, 367 (8th

Cir. 1967), cert. den. 389 U.S. 888; United States v. Kahn,

366 F.2d 259, 265 (2d Cir. 1966) ; Hanks v. United States,

388 F.2d 171, 173 (10th Cir. 1968) ; United States v. Benson,

495 F.2d 475, 478-479 (5th Cir. 1974); United States v.

Pentado, 463 F.2d 355, 362 (5th Cir. 1972), cert. den. 409

U.S. 1079.

Therefore, even assuming, arguendo, that the stipulation

and affidavit were insufficient for standing, there is no re-

versible error because the Government invited the error

‘The Government referred to United States v. Prueitt, 540 F.2d

995 (9th Cir. 1976).

8

and intentionally waived any objection to it. The Petition

should be denied because this Court need not reach the

issue of the validity of the stipulation and affidavit.

(4) In the instant case the primary emphasis in the

district court was on the legality of the search. As dis-

cussed above, there was no real dispute as to standing

and the Government accepted the facts presented as suffi-

cient to establish standing. Appeal was first taken as to

both defendants, apparently with the intention of arguing

the legality of the search. It was only the day before the

opening brief was to be filed that the appeal was dismissed

as to Mazzelli and Mr. Conway’s standing appeared as the

only issue (C.T. 97, 106). At no time in the District Court

was there the slightest mention of either of the two legal

theories® raised in the Petition before this Court. Further-

more, even in the Court of Appeals these issues were only

developed in the Petition for Rehearing and Suggestion

for Rehearing in Bare.’

This Court is a court of review and will not pass on

questions of law not presented to the lower courts. Bell

v. Bruen, 42 U.S. 169 (1843) ; Virtue v. Creamery Package

Mfg. Co., 227 U.S. 8, 38-39 (1912); Weade v. Dichmann,

Inc., 337 U.S. 801 (1949); United States v. Lovasco, 431

USS. 783, 788 fn. 7 (1977).

*I.e., the proposed distinction between a search and seizure and

the contention that no legitimate expectation of privacy arises from

ownership of contraband.

"The thrust of the Government’s argument prior to the Petition

for Rehearing was that Conway’s affidavit should be disbelieved or

that he abandoned the suitcase.

9

Deviations from this rule are found only in the most

exceptional cases. Duignan v. United States, 274 U.S. 195,

200 (1926) ; United States v. Atkinson, 297 U.S. 157 (1935) :

Helvering v. Hormel, 111 F.2d 1 (8th Cir. 1940) cert.

granted 311 U.S. 626, affirmed 312 U.S. 552 (1940).

This case is exceptional, if at all, only in being totally

unsuitable for Supreme Court review. The issues now

raised were never even recognized in the District Court,

much less raised or developed. This Court should deny the

Petition.

(5) Even assuming that this Court ignored the search

of the suitcase, as urged by the Petition, the seizure of

the cocaine and search of the package containing it were

illegal. Petitioner contends that once the suitcase had been

opened, the contraband was in plain view (Petition: 6,

n.7). This is factually incorrect. Inside the suitcase was

a metal case which was broken open and inside that was a

package which was opened. Only then was the cocaine in

plain view (R.T. I[:115-116). The seizure of the cocaine

and the search of its package were illegal and provide an

additional ground in support of the lower court’s judgment.

(6) Assuming that this Court could somehow reach the

question, the proposed distinction between a search and

seizure has no application to the facts herein. In this case

Respondent conceded a proprietary interest in virtually

the entire contents of the suitcase. It would seem apparent

that a person who owned virtually the entire contents of a

suitcase would have a reasonable expectation of privacy

as to any opening of that suitcase. Petition: 7a-8a;

United States v. Wilson, 536 F.2d 883, 885 (9th Cir. 1976) ;

10

United States v. House, 524 F.2d 1035, 1042 (9th Cir. 1975).

Thus, while the proposed distinction may be important in

the context of a defendant who owns one item in a store,

house, or other large structure, the expectation of privacy

as to a suitcase belongs almost exclusively to the owner

of its contents. C.f., United States v. Crowell, 586 F.2d

1020 (4th Cir. 1978); United States v. Jackson, 585 F.2d

653 (4th Cir. 1978); United States v. Smith, 550 F.2d 277

(5th Cir. 1977); United States v. Galante, 547 F.2d 733,

739 (2d Cir. 1976). Thus the question presented is not

whether Conway’s ownership of seized property gives him

an automatic right to object to any search leading to the

seizure. Instead, the question is whether on the facts of

this case Conway’s ownership of the contents of the suit-

case gave him an expectation of privacy as to the suitcase

itself. In any event, if this Court is to accept for review

a case dealing with the issue, it should be a case which

presents the issue squarely on facts similar to those in the

circuit court cases cited above.

(7) Even assuming that this Court considers only

Mr. Conway’s proprietary and possessory interest in the

contraband, this case does not present the question whether

a person can have a legitimate possessory interest in stolen

property or contraband for Fourth Amendment purposes.

In this case, Mr. Conway’s interest in the contraband was

evidence of his privacy interest in the suitcase, metal

case and package which contained the contraband. The

illegal search was of these containers and Mr. Conway’s

privacy interest in relation to these containers was com-

pletely legitimate. This case is thus unlike an asserted

privacy interest in a stolen automobile or stolen suitcase.

11

Rakas v. Illinois, ...... U.S. ....... 58 L.Ed.2d 387 (1978);

United States v. McCambridge, 551 F.2d 865, 870, n.2

(1st Cir. 1971). On the contrary, this case is like the vast

majority of suppression cases where contraband or items

probative of crime are ultimately discovered through a

search. If the presence of contraband or evidence of crime

makes a defendant’s expectation of privacy illegitimate,

then very little remains of the Fourth Amendment in

criminal cases.

CONCLUSION

The petition for a writ of certiorari should be denied.

November 1979

Respectfully submitted,

THomMas STEEL

Law OFFICES OF

MicHarEL KENNEDY

Attorneys for Respondent

Epmunp J. Lane

Of Counsel