Opposition — Taibe v. United States

No. 79-422. JAN % 4989

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In the Supreme Court of the United States

OCTOBER TERM, 1979

JOSEPH TAIBE, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WADE H. McCRreE, Jr.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

Louis M. FisCHER

Attorney

Department of Justice

Washington, D.C. 20530

In the Supreme Court of the United States:

OCTOBER TERM, 1979

No. 79-422

JOSEPH TAIBE, PETITIONER

B..

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The judgment of the court of appeals (Pet. App. 42-

43) is not reported. The opinion of the district court

(Pet. App. 44-60) is reported at 446 F. Supp. 1142.

JURISDICTION

The judgment of the court of appeals was entered on

November 2, 1978. The petition for a writ of certiorari

was filed on September 4, 1979, and is therefore

substantially out of time under Rule 22(2) of this Court.

The jurisidction of this Court is invoked under 28 U.S.C.

1254(1).

QUESTIONS PRESENTED

1. Whether reasonable suspicion existed justifying a

stop and frisk of petitioner.

(1) ,

2. Whether, in the circumstances of this case,

petitioner voluntarily consented to the search of his

suitcase.

3. Whether the court properly admitted into evidence

cocaine discovered when it fell out of petitioner's jacket.

4. Whether the evidence was sufficient tor sustain

petitioner’s conviction.

STATEMENT

After a jury trial in the United States District Court

for the Eastern District of New York, petitioner was

convicted of possession of heroin with intent to

distribute it, in violation of 21 U.S.C. 841(a)(1). He was

sentenced to five years’ imprisonment, to be followed by

a special parole term of ten years, and was fined $5,000

(Pet. 2). The court of appeals affirmed (Pet. App. 42-43).

1. The evidence pertaining to petitioner’s detention

and the search of his suitcase and jacket is fully set out

in the opinion of the district court (Pet. App. 44-54).

Briefly, it showed that DEA agents in New York City

received information that petitioner, a suspected drug

trafficker, would be arriving at Kennedy International

Airport on an airline ticket issued in another person’s

name and that he was carrying approximately $30,000 in

cash. Accordingly, the agents undertook a surveillance of

petitioner upon his arrival (Pet. App. 44-45). Petitioner

was met by Michael Tullo and gave Tullo his baggage

claim ticket. The two men then separated and pretended

not to know each other. After Tullo claimed petitioner's

suitcase, the two men met at Tullo’s car in the airport

parking lot (id. at 45-46). The agents approached the car,

identified themselves and asked the men to get out of the

vehicle. Neither man responded, and the agents observed

i

3

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petitioner attempt to stuff his jacket under the car’s

front seat. Two of the three agents then drew their

weapons and shouted at the men, after which petitioner

and Tullo emerged ftom ‘the car (id. at 46), and the

agents put away their revolvers (id. at 54). The men were

frisked for weapons and produced identification (id. at

46-47).

Petitioner consented to Agent Huber’s request for

permission to search his suitcase. In the course of

removing the suitcase from the car, Agent Huber also

picked up petitioner’s jacket from the floor of the car; as

he did so, a bag containing white powder fell from a

pocket (id. at 47). Huber then searched the suitcase, in

which he found a bag containing a white powder (later

determined to be lactose) and a box labelled “Drug and

Narcotics Identification Kit” (ibid.). Petitioner was then

given Miranda warnings, and he agreed to accompany the

agents to the DEA office. There a field test revealed that

the bag that fell from petitioner’s jacket contained

cocaine.' Petitioner and Tullo were placed under arrest.

Petitioner consented again to a second search of his

suitcase (id. at 47-48). Additional narcotics paraphernalia

were discovered in the suitcase, and $42,000 in cash was

found hidden in petitioner’s jacket (id. at 48).

2. The district court held that the facts observed by

the agents provided them with a réasonable suspicion

that petitioner was engaged in narcotics trafficking

sufficient to justify the stop and frisk of petitioner (Pet.

App. 50-52). After considering the totality of the

circumstances, including the fact that the stop occurred

in an open public area, that the agents’ guns had been

'Testimony at trial indicated that the 40 grams of cocaine found

in the jacket contained approximately 800 dosage units and was

worth approximately $2,250 (Tr. 84-86).

put away, and that the request was made in a con-

versational tone of voice without promises or threats,

the court found that petitioner voluntarily consented to

the search of his suitcase (id. at 52-54). The court also

found, however, that the consent did not authorize a

search of petitioner's jacket and that the discovery of the

cocaine hidden in the jacket was not inadvertent.

Nevertheless, it found that the cocaine would ultimately

have been discovered, because the lawful search of the

suitcase led to the discovery of materials that gave rise to

probable cause to believe that the car contained

contraband. The court reasoned that a proper search of

the car could have been conducted at that point, given

its location in a public place, and the cocaine in the

jacket inevitably would have been discovered (id. at 54-

57). Accordingly, the court denied petitioner's motion to

suppress (id. at 57). The court of appeals affirmed

“substantially for the reasons” given by the district court

(id. at 43). :

ARGUMENT

At the outset, we submit that the Court should not

accept this case for review because of the substantial

untimeliness of the petition. The judgment of the court

of appeals was entered on November 2, 1978, and the

petition was therefore due for filing on December 2,

1978. It was not filed until September 4, 1979, and was

therefore more than nine months out of time. With the

exception of a patently insubstantial attack on the

sufficiency of the evidence (see point 4, infra),

petitioner’s contentions all attack the lawfulness of the

search leading to the discovery of contraband and other

evidence of petitioner’s guilt. Since these contentions

have no bearing upon the issue of guilt or innocence, we

submit that the Court should not consider them when

they are first presented in a petition that is so far out of

time. To entertain them now, when the judgment of

conviction has long since become final, would circum-

vent the policies restricting collateral attacks upon final

judgments on the basis of Fourth Amendment ex-

clusionary rule claims. See Stone v. Powell, 428 U.S. 465

(1976).

|. Petitioner contends (Pet. 17-23) that his initial

detention and frisk in the airport parking lot was illegal.

This contention is without merit. The DEA agents knew

that petitioner was travelling under an alias, carrying a

large amount of cash, and that he was already under

suspicion of involvement in narcotics — trafficking.

Petitioner's conduct in the airport in giving his baggage

claim check to Tullo and then pretending not to know

him until their rendezvous in the parking lot further

added to the agents’ susnicion that illicit drug activities

were afoot. These “specific and articulagble facts” (see

Terry v. Ohio 392 U.S. 1, 21 (1968)) clearly establish that

the agents had a reasonable suspicion of criminal activity

sufficient to justify a brief stop, as the district court

found (Pet. App. 51-52). See United States v. Oates, 560

F. 2d 45, 59 (2d Cir. 1977).2 The fact that weapons were

not found during the frisk (see Pet. 20) does not suggest

that the investigative stop was improper, nor did it

prevent the agents from requesting petitioner’s consent to

search.

*Petitioner suggests that this case is distinguishable from Terry

and Oates because petitioner was required to place his hands on top

of the car during the frisk (Pet. 20) and that this conduct. coupled

with the agents’ action in ordering petitioner out of the car with

guns drawn, constitutes an arrest (Pet. 21). This suggestion is

without foundation. The right of a policemen to stop and frisk a

suspect necessarily includes the right to order the suspect to comply

if he does not cooperate willingly. See Adams v. Williams. 407 U.S.

143, 147 (1972); Terry v. Ohio, supra, 392 U.S. at 32 (Harlan, J..

concurring).

2. Petitioner concedes (Pet. 23, 27) that the district

court properly considered the “totality of the cir-

cumstances” under Schneckloth v. Bustamonte, 412 U.S.

218, 227 (1973), in determining that he voluntarily

consented to the search of his suitcase. However,

petitioner contends (Pet. 23-30) that the district court's

conclusion based on these circumstances was erroneous.

Since both courts below have agreed on the factual

determination that the consent was voluntarily given,

further review by this Court is not warranted. Berenvyi v.

Immigration Director, 385 U.S. 630, 636 (1967).

Moreover, the court’s finding is amply supported by the

record. No threats or promises were made to induce

consent, and the setting, a public parking lot, was not

inherently coercive (Pet. App. 52-54). Petitioner suggests

(Pet. 24, 30) that coercion must be implied because

petitioner was carrying contraband and thus would not

have consented to be searched voluntarily. Such a per se

rule, however, would virtually eliminate the utility of

consent searches by police officers, even though this

Court has encouraged the use of that technique. See

Schneckloth, supra, 412 U.S. at 227-228.

3. Petitioner next contends (Pet. 31-36) that the

district court erred in ruling that the cocaine discovered

after it fell out of petitioner’s jacket was admissible

under the “inevitable discovery” doctrine. Agerit Huber

picked up the jacket after receiving petitioner’s consent

to a search of his suitcase, but before conducting the

search. The district court found that petitioner had not

consented to a search of his jacket and that the cocaine

was not admissible under the “plain view” doctrine

because the act of picking up the jacket was not

inadvertent (Pet. App. 54-55). The court found, however.

that the evidence discovered in the suitcase search

<

furnished probable cause to believe that narcotics were

hidden, justifying an immediate search of the car

including petitioner's jacket (id. at 56-57). The cocaine in

the jacket would inevitably have been found, and thus it

was held to be admissible. United States v. Jarvis, 560 F.

2d 494 (2d Cir. 1977), cert. denied, 435 U.S. 934 (1978).

A conflict in the circuits exists concerning the validity

of the inevitable discovery doctrine.’ The Court has

declined to resolve that conflict in the past,4 and we do

not believe that this case presents a suitable vehicle for

addressing the issue. It is our submission that probable

cause existed to search petitioner’s jacket at the time the

cocaine was discovered, prior to the search of his

suitcase. If we are correct, there would be no occasion to

decide whether the search was sustainable on inevitable

discovery grounds. In addition to the other information

that led the agents to suspect narcotics activity (the use

of an alias, carrying over $30,000 in cash, the

identification of petitioner as a suspected drug trafficker,

and the suspicious conduct of petitioner and Tullo in the

airport and parking lot), Agent Sears saw petitioner

attempt to conceal his jacket under the front seat of the

car when the agents approached the vehicle (Pet. App.

46). Sears told Agent Huber what he had observed

before Huber picked up the jacket (id. at 47, 55). While

an innocent explanation of the attempted concealment of

the jacket can be imagined, it was nevertheless a highly

suspicious action, which, when considered together with

the other facts known to the agents, gave them probable

3Compare United States v. Jarvis, supra, United States ex rel.

Owens v. Twomey, 508 F. 2d 858 (7th Cir. 1974), and Government

of Virgin Islands v. Gereau, 502 F. 2d 914, 917-928 (3d Cir. 1974),

cert. denied, 420 U.S. 909 (1975) with United States v. Moultin, 525

F. 2d 943, 949 (Sth Cir. 1976).

4See, e.g., Fitzpatrick v. New York, 414. U.S. 1050 (1974).

cause to believe that weapons or contraband were present

in the jacket or car,~Sus justifying an immediate search.

Chambers v. Maroney, 399 U.S. 42, 52 (1970).

4. Petitioner finally contends (Pet. 37-41) that the

evidence failed to establish that he possessed cocaine

with the intent to distribute as required by 21 U.S.C.

841(a)(1), but at most showed that he possessed the

cocaine solely for his personal use. This contention is

without merit.

Agent Sears testified that the cocaine contained

approximately 800 dosage units with a total street value

of $2,250 (Tr. 84-86). This evidence of the magnitude of

the resale value may alone be sufficient to sustain an

inference of intent to distribute. See United States v.

Ramirez- Rodriquez, 552 F. 2d 883, 885 (9th Cir. 1977);

United States v. Mather, 465 F. 2d 1035, 1037 (Sth Cir.),

cert. denied, 409 U.S. 1085 (1972). Moreover, petitioner's

possession of $42,000 in cash, the discovery of two

narcotics identification kits and other narcotics im-

plements in his suitcase, and his possession of ap-

proximately 295 grams of lactose, a cutting agent for

narcotics, all support the court of appeals’ holding that

the evidence was sufficient (Pet. App. 43). See United

States v. Reese, 561 F. 2d 894, 897 (D.C. Cir. 1977);

United States v. Ramirez- Rodriquez, supra.

‘Petitioner's reliance (Pet. 37) on United States v. Oropeza, 564 F.

2d 316 (9th Cir. 1977), cert. denied, 434 U.S. 1080 (1978), is

misplaced. There the court concluded that no showing had been

made that the heroin was within the defendant's exclusive dominion

and control. 564 F. 2d at 322-323.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

WapbE H. McCreE, JR.

Solicitor General

Puitip B. HEYMANN

Assistant Attorney General

Louis M. FISCHER

Attorney

JANUARY 1980

DOJ-1980-01