Opposition — Fazio v. United States

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Supreme Court, U.S,

eos. ED

No. 79-1839 AUG2 0 1980

MI

In the Supreme Court of the United States

OCTOBER TERM, 1979

. JR., CLERK

FREDERICK JOHN FAZIO AND JOSEPH HENRY

CUSANELLI, PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WabDE H. McCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

JANIS H. KOCKRITZ

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

In the Supreme Court of the United States

OCTOBER TERM, 1979

No. 79-1839

FREDERICK JOHN FAZIO AND JOSEPH HENRY

CUSANELLI, PETITIONERS

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

QUESTION PRESENTED

Whether police officers, who had observed petitioners

unloading marijuana at an eight-acre private estate,

violated petitioners’ Fourth Amendment rights by

entering the grounds and building of the estate and

arresting petitioners without a warrant.

Jurisdiction

Statement

Argument

Conclusion

II

TABLE OF CONTENTS

Cases:

United States v. Williams, 573 F. 2d

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TABLE OF AUTHORITIES

Coolidge v. New Hampshire, 403 U.S.

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Dorman v. United States, 435 F. 2d 385 ........... 6

Frisbie v. Collins, 342 U.S. 519 oo... ceeeeeeeeeeeee 4-5

Payton v. New York, No. 78-5420 (Apr. 15,

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Rakas v. Illinois, 439 U.S. 128 wo... ceecceeeeeseeeeees 5

United States v. Crews, No. 78-777

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United States v. Kulcsar, 586 F. 2d

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United States v. Santana, 427 U.S. 38 ......ccccceee 5

United States v. Watson, 423 U.S. 411... 5

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Constitution and statutes:

United States Constitution, Fourth

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OPINIONS BELOW

The initial opinion of the court of appeals (Pet. App.

la-15a) is reported at 611 F. 2d 1066. The supplemental

opinion of the court of appeals (Pet. App. 16a-18a) is

reported at 615 F. 2d 685.

JURISDICTION

The judgment of the court of appeals was entered on

February 14, 1980. A petition for rehearing was denied on

April 18, 1980. The petition for a writ of certiorari was

filed on May 19, 1980 (a Monday). The jurisdiction of this

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

STATEMENT

Following a jury trial in the United States District

Court for the Southern District of Georgia, petitioners

were convicted of conspiracy to possess marijuana (21

U.S.C. 846) and aiding and abetting in the possession of

marijuana with the intent to distribute it (21 U.S.C.

841(a(1) and 18 U.S.C.’ 2).! Petitioner Cusanelli was

sentenced to a term of five years’ imprisonment; petitioner

Fazio was sentenced to four years’ imprisonment. The

court of appeals affirmed (Pet. App. la-15a).

The circumstances leading to petitioners’ arrests are

fully described in the opinion below. On July 21, 1978, a

county police sergeant began intermittent surveillance of a

Buick Rivera and its driver, who was later identified as

co-defendant John Barnes, as well as a 19 foot “Aqua

‘Petitioners were tried together with |2 co-deiendants: Scott Butler,

Michael Smith, Garrison Barnes, Robert Barnes, John Barnes, Jr.,

[Thomas Wingate, William Hiscock, George Holder, Robert Milne,

William McConaghy, Hugh McConaghy and John McConaghy.

John McConaghy was acquitted on all counts; the remaining

defendants, whose convictions were affirmed on appeal, have not

joined in this petition.

2

Sport” boat that was parked at a Ramada Inn motel near

Brunswick, Georgia (S.H. 34). On July 23, co-defendant

Robert Barnes joined John Barnes, his brother, and two

other co-defendants at the Ramada Inn (S.H. 35-36). The

four men transported the boat from the motel to a public

landing on the mainland, where they launched the boat

and proceeded by water to the nearby St. Simons Island

Marina (S.H. 35-36). Later that afternoon the two

brothers left the marina in the boat, proceeding north on

the Frederica River. They returned to the marina that

night. After the boat had made the same trip twice more

in the following two days, the county police sergeant

contacted the Drug Enforcement Administration, which

then joined in the surveillance (S.H. 37). On July 25, a

DEA agent flying over the area observed the boat while it

was docked at West Point Plantation, a private estate on

St. Simons Island that was then being rented by co-

defendants Michael Smith and Thomas Wingate.

Meanwhile, on July 24, the Barnes brothers, who had

checked into the Ramada Inn on July 20 (S.H. 34),

moved directly across the street to a Howard Johnson’s

Motel (S.H. 35). On July 26, the Barnes brothers went to

a Holiday Inn at the same intersection, where they had

dinner with petitioners and two other co-defendants who

were staying there (S.H. 44-45). The Barnes brothers

changed hotels again on July 27, when they moved to a

Sheraton Inn that was also located at the same

intersection (S.H. 35). On the same day, petitioner

Cusanelli was observed packing a jeep at the Holiday inn,

and petitioner Fazio and another co-defendant left the

Holiday Inn and proceeded north to Eulonia, Georgia, in

a large tractor-trailer truck (S.H. 46-47).

“The estate, which consists of eight acres, is enclosed by a fence on

three sides; it is bounded by the Frederica River on the fourth side.

[he property is accessible by only one road (S.H. 52, 84, 86-88).

3

The arrest took place on July 28. At about 6:00 p.m.,

the Barnes brothers launched the Aqua Sport from the St.

Simons Marina and headed north on the Frederica River

(S.H. 40). At 7:00 p.m., petitioner Fazio arrived with the

tractor-trailer truck at the West Point Plantation on St.

Simons Island (S.H. 48-49). Agents also saw the jeep

crossing over to the island. From the air, another DEA

agent.observed the Aqua Sport and a shrimp boat at the

plantation dock. Shortly after the tractor-trailer arrived,

the Aqua Sport sped north up the river (S.H. 40, 50).

Although night was falling, none of the plantation’s lights

was illuminated (S.H. 83).

At about 9:30 p.m., DEA agents and local police set up

surveillance of the plantation from a nearby dock and

property, from which they observed the plantation

through light amplifying “night goggles” (S.H. 58). An

arrest team was also posted along the road leading to the

plantation, and boats were stationed in the river to

observe possible activities there (S.H. 62, 88-89). From

their vantage point, agents observed people transferring

bundles, which appeared to contain marijuana, from the

shrimp boat to the dock, and then to land near the

tractor-trailer (S.H. 55, 57).

At this point, the officers had not yet deduced the

pattern of the operation. Because the officers had

observed the Aqua Sport leave the dock earlier and go

north, they speculated that the boat might have gone to

meet and return with another shrimp boat carrying more

marijuana (S.H. 94-95). They had no idea when the

tractor-trailer might leave the area. At approximately 2:30

a.m. agents heard the starting of an engine, which they

later determined to be that of a pickup truck, and they

saw the brake lights of a vehicle go on (S.H. 61). The

DEA agent in charge then decided that the loading

4

operation must have been completed and that the truck

loaded with marijuana was ready to leave. Consequently,

he ordered the agents to enter the property and make

arrests. As the officers moved closer to the plantation

house, people came out of the house and began carrying

bundles of marijuana from stacks near the truck into the

basement of the house (S.H. 64). Arrests were then made,

and the house was secured. Petitioner Fazio was arrested

in a bedroom of the house; petitioner Cusanelli was found

under the dock.

After the arrests, agents seized 191 bales of marijuana

that were in plain view on the ground near the truck and

the dock. The agent in charge then obtained search

warrants for the house, the vehicles and the hotel rooms

(S.H. 72-73; Tr. 394). The execution of those warrants

resulted in the seizure of an additional 661 bales of

marijuana and other evidence (S.H. 68, 93).

ARGUMENT

Petitioners contend that their warrantless arrests were

unlawful under Payton v. New York, No. 78-5420 (Apr.

15, 1980). Petitioner Fazio argues that the officers’

warrantless entry of the house violated his expectation of

privacy even if the officers had probable cause to enter the

plantation and arrest his co-defendants. Although

petitioner Cusanelli was arrested at the plantation’s dock,

rather than in the house, he contends that his arrest was

likewise illegal because the dock was part of the zone of

privacy surrounding the house and its curtilage.

At the outset, we note that petitioners had no right to

avoid trial even if the arrests were illegal; their remedy is

clearly limited to the suppression of any evidence that

might have resulted from the arrests. See Payton v. New

York, supra, slip op. 18 n.34; United States v. Crews, No.

78-777 (Mar. 25, 1980); Frisbie v. Collins, 342 U.S. 519,

5

522 (1952). Petitioners, however, do not and cannot point

to any evidence that was seized pursuant to their arrests.

Fazio, of course, was arrested while the officers were

securing a house that they knew through their own

observations to contain marijuana. It is undisputed,

however, that no evidence was seized from the house at

the time of Fazio’s arrest. Only after a search warrant had

been procured did the officers seize the marijuana that

they had observed being placed in the basement.

Petitioners have no basis for seeking suppression of

evidence seized at the house pursuant to a valid warrant

based on a showing of probable cause that was

independent of any observations made inside the house.’

Likewise, petitioner Cusanelli has no basis for com-

plaint because the bales of marijuana that were seized in

plain view were not the product of his arrest. From a

place where the agents were entitled to be, they observed

the movement of bales of marijuana by Cusanelli and his

co-defendants, who were in public view. See United States

v. Watson, 423 U.S. 411 (1976). Cusanelli had no

legitimate expectation of privacy in the plantation

grounds where he was visible to public view. United

States v. Santana, 427 U.S. 38, 42-43 (1976). Therefore,

the officers’ warrantless entry to arrest Cusanelli was

appropriate under Watson, and the seizure of evidence

3[n any event, it is questionable that petitioners’ mere presence on

the property created any interest protected by the Fourth Amend-

ment in these circumstances. See Rakas v. Illinois, 439 U.S. 128

(1978).

6

observed in plain view on the dock was valid. See

Coolidge v. New Hampshire, 403 U.S. 443, 465 (1971).

Finally, the exigent circumstances surrounding the

unloading operation justified the warrantless entry in any

event. See Payton v. New York, supra, slip op. 10.

Officers conducting surveillance of the estate observed the

smugglers unloading the marijuana trom the boat, but

they had no idea when the truck might leave or the

smugglers might disperse. When they observed the Aqua

Sport proceed up the river again, they assumed that it had

gone to meet another shrimp boat with more marijuana.

In that case, the tractor-trailer might have stayed on the

estate for several more hours or even days, and more

smugglers might have arrived with more marijuana. Not

until the officers heard the sound of a truck engine did

they conclude that the loading operation was completed

and that the smugglers were probably beginning to escape

from the area. See Dorman v. United States, 435 F. 2d

385, 392-393 (D.C. Cir. 1970); United States v. Kulcsar,

586 F. 2d 1283, 1287 (8th Cir. 1978). In these cir-

cumstances, a warrantless entry was necessary to prevent

the smugglers from escaping under cover of darkness,

and, as the district court aptly noted, the officer in charge

would have been “derelict in his duties” if he had not

acted as he did (S.H. 122).4

4Moreover, the Fifth Circuit had held prior to Payton that

warrantless arrests in the home were permissible. See United States v.

Williams, 573 F. 2d 348 (Sth Cir. 1978). Thus, there is no suggestion

here that the officers acted in bad faith or in knowing disregard of

petitioners’ constitutional rights. Consequently, the purpose of the

exclusionary rule would not be served by applying Payton

retroactively in this case even if that holding were applicable in these

circumstances.

7

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

WADE H. MCCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

JANIS H. KOCKRITZ

Altorney

AUGUST 1980

DO}J.-1980-08