Amicus Brief — United States v. Place

No. 81-1617

Hupreme Court of the Gnited

OcToBER Term, 1982 as

UNITED STATES OF AMERICA,

Petitioner,

vs.

RAYMOND J. PLACE,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE SECOND CIRCUIT

BRIEF OF AMERICANS FOR EFFECTIVE LAW

ENFORCEMENT, INC., AND THE INTERNATIONAL

ASSOCIATION OF CHIEFS OF POLICE, INC.,

AS AMICI CURIAE IN SUPPORT OF THE PETITIONER

Of Counsel:

WILLIAM C. SUMMERS, ESQ. FRED E. INBAU, ESQ

Attorney, — John Henry Wigmore

Association of Professor of Law Emeritus,

Chiefs of Police, Inc. Northwestern University

aaa WOUNGEn Schooi of Law

EVELLE J. ESQ Minois 60611

Chairman of the Board, WA W. SCHMIDT.

Americans for Effective Law re Di

Enforcement, Inc. Americans for Effective Law

hee Deas Cees Soot?

HOW. G. BERRINGER, ESQ $01 Grandview Drive

Assistant Director, Suite 209

Americans for Effective Law South San Francisco,

Enforcement, Inc.

501 Grandview Drive JAMES P. MANAK, ESQ

Suite 209 Counsel,

South San Francisco, Americans for Effective Law

California 94080

33 North LaSalle Street

Suite 2108

Illinois 60602

Counsel for Amici Curiae

Pandick Press Midwest, Inc. Chicago @ 454-7600

TABLE OF CONTENTS

Table of Authorities

Interest of Amici

Argument

I.

THE FOURTH AMENDMENT DOES NOT PROHI-

BIT LAW ENFORCEMENT OFFICERS FROM

DETAINING FOR A REASONABLE PERIOD OF

TIME PERSONAL LUGGAGE REASONABLY

SUSPECTED OF CONTAINING NARCOTICS,

FOR THE PURPOSE OF ARRANGING EX-

POSURE TO A NARCOTICS DETECTION DOG...

Conclusion

PAGE

TABLE OF AUTHORITIES

Cases

Carroll v. United States, 267 U.S. 132 ( 1925)........

Dunaway v. New York, 442 U.S. 200 ( 1979)..........

Michigan v. Summers, 101 S. Ct. 2587, 29 Cr L

3097 (1981)

People v. Mayberry, 644 P. 2d 810, 31 Cr L 2190

(Cal. 1982)

State of Florida vy. Royer, 389 So. 2d 1007 (Fla.

App. 1979), cert. granted, No. 80-2146................

State of Illinois v. Gates, 88 Ill. App. 3d 1095, 423

N. E. 2d 887 (Ill. 1981), cert. granted, No. 81-

430

United States v. Klein, 626 F. 2d 22 (7th Cir.

1980)

United States v. Martell, 654 F. 2d 1356 (9th Cir.

1981)

United States v. Ross, _.. U. S. —__, 102 S. Ct.

2157, 31 Cr L 3051 (1982)

United States v. Van Leeuwen, 397 U. S. 249

(1970)

United States v. Viegas, 639 F. 2d 42 (Ist Cir.

1981), cert. denied, No. 80-1344 ( May 4, 1981).

United States v. West, 651 F.2d 71 ( ist Cir. 1981)

Article

Annotation, Use of Trained Dogs to Detect Nar-

cotics or Drugs as Unreasonable Search in Vio-

lation of Fourth Amendment, 31 ALR Fed. 931.

PAGE

4, 5,6

5, 6

5,6

5

IN THE

HSupreme Court of the United States

OctosBer TERM, 1982

UNITED STATES OF AMERICA,

Petitioner,

vs.

RAYMOND J. PLACE,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE SECOND CIRCUIT

BRIEF OF AMERICANS FOR EFFECTIVE LAW

ENFORCEMENT, INC., AND THE INTERNATIONAL

ASSOCIATION OF CHIEFS OF POLICE, INC.,

AS AMICI CURIAE IN SUPPORT OF THE PETITIONER

This brief is filed pursuant to Rule 36 of the Supreme

Court Rules. Consent to file has been granted by Hon. Rex E.

Lee, Solicitor General of the United States, Counsel for Peti-

tioner, and James D. Clark, Esq., Counsel for Respondent.

Letters of Consent of both parties have been filed with the

Clerk of this Court.

INTEREST OF AMICI

Americans for Effective Law Enforcement, Inc. (AELE),

as a national not-for-profit citizens organization, is interested in

2

establishing a body of law making the police effort more

effective, in a constitutional manner. It seeks to improve the

operation of the police function to protect our citizens in their

life, liberties and property, within the framework of the various

State and Federal Constitutions.

AELE has previously appeared as amicus curiae forty-four

times in the Supreme Court of the United States, and thirty-

three times in other appellate courts, including the Federal

District Courts, the Circuit Courts of Appeal and various state

courts, such as the Supreme Courts of California, Illinois, Ohio

and Missouri.

The International Association of Chiefs of Police, Inc.

(IACP), is the largest organization of police executives and line

Officers in the world, consisting of more than 12,600 members in

62 nations. Through its programs of training, publications,

legislative reform, and amicus curiae advocacy, it seeks to make

the delivery of vital police services more effective, while at the

same time protecting the rights of all our citizens.

AELE and IACP well know the problems faced by law

enforcement officers in their good faith attempts to conduct

stops and detentions for investigatory purposes that comport

with the myriad of rules and exceptions that have been

judicially engrafted upon the Fourth Amendment. The state of

this intricate complex of rules as applicable to airport con-

frontations with suspected narcotics couriers, and the severity of

the drug trafficking problem, compels these organizations to

speak on behalf of law enforcement officers in this case.

3

ARGUMENT

THE FOURTH AMENDMENT DOES NOT PROHIBIT

LAW ENFORCEMENT OFFICERS FROM DETAINING

FOR A REASONABLE PERIOD OF TIME PERSONAL

LUGGAGE REASONABLY SUSPECTED OF CONTAIN-

ING NARCOTICS, FOR THE PURPOSE OF ARRANG-

ING EXPOSURE TO A NARCOTICS DETECTION DOG.

Amici will not reiterate at length the legal arguments made

by the Government in this case, although we are in complete

accord with such arguments and wish to associate ourselves

with and express our complete support for them. We will,

however, address the key legal issues in this case, and point out

their importance to the effectiveness of law enforcement nation-

wide.

The decision of the Second Circuit Court of Appeals is in

direct conflict with three different Circuit Courts of Appeals. If

allowed to stand it will all but eliminate the good faith efforts of

law enforcement agents to conduct effective investigatory stops

and investigations at airports, and will all but end the attempts

by the federal Government and the states to stem the bur-

gecning traffic in illegal drugs presently utilizing our com-

mercial air transportation system as its distribution network.

This Court took note of the realities of modern trans-

_ portation in its relationship to crime in Carroll v. United States,

267 U.S. 132 (1925), by fashioning a reasonable and common

sense exception to the warrant requirement of the Fourth

Amendment for motor vehicles. It followed the same approach

recently in United States v. Ross, _— U.S. ——, 102 S. Ct.

2157, 31 Cr L 3051 ( 1982), an approach supported by amici in

that case. In the present case we ask the Court to recognize

another reality of modern transportation, i.e., that commercial

4

air transportation has become the unwitting and unwilling vital

link in the movement of illicit drugs into and within this country

and that it will be impossible for law enforcement agents to

have any meaningful impact upon this illegal activity unless

they are given reasonable and common sense powers to in-

vestigate such crimes.

All three of the Circuit Court cases referred to arose out of

Drug Enforcement Agency (DEA) airport confrontations with

persons reasonably suspected of carrying narcotics, as in the

instant case. In these cases the courts ruled that the federal

agents did not violate the Fourth Amendment when tempora-

rily detaining luggage for the purpose of exposure to a narcotics

detection dog.

In United States v. Klein, 626 F. 2d 22 (7th Cir. 1980),

DEA agents developed reasonable suspicion that two deplaning

Passengers were carrying contraband in their suitcases. One of

the agents informed the suspects that they were free to leave.

but that their suitcases would be detained while the agents

attempted to obtain a search warrant. The agents first awaited

the arrival of a drug detection dog and then obtained a search

warrant after the dog alerted them to the presence of drugs in

the luggage. The court ruled that the agents’ actions adequat-

ely protected the suspects’ privacy interest in their luggage and

that, given reasonable suspicion, “they would have been remiss

in not detaining the bags for further investigation.” 626 F. 2d at

26.

The Seventh Circuit in Klein relied heavily on this Court's

decision in United States v. Van Leeuwen, 397 U. S. 249

(1970), where it was held that the Fourth Amendment permits

the temporary detention of effects for further investigation

when police reasonably believe that those effects contain con-

traband. In Van Leeuwen, two packages sent through the

United States mails aroused the suspicion of postal officials.

The postal officials detained the packages for a day while the

5

police conducted an investigation. The information obtained

during this period was used to obtain a search warrant, and

contraband was discovered in the packages.

The First and Ninth Circuits agreed with the Seventh

Circuit in Klein and applied the principles of Van Leeuwen to

uphold the validity of temporary detentions of baggage in order

to arrange a dog sniff.' In United States v. Viegas, 639 F. 2d 42

(Ist Cir. 1981), cert. denied, No. 80-1344 ( May 4, 1981), DEA

agents reasonably suspected that an arriving passenger was

carrying drugs in his suitcase. The Court held that the agents’

reasonable suspicion justified the temporary detention of the

luggage, even though it would inconvenience the defendant.

The same court reaffirmed this holding in another case in which

luggage was detained on reasonable suspicion pending arrival

of a dog, while the suspect was permitted to leave. United

States v. West, 651 F. 2d 71 (Ist Cir. 1981).

The Ninth Circuit case is United States v. Martell, 654

F. 2d 1356 (1981). In that case DEA agents stopped the

defendants upon their arrival at the San Diego airport on the

basis of a reasonable suspicion that they were carrying con-

traband. Approximately 20 minutes later, the defendants and

the luggage they were carrying were taken to a police office,

where a narcotics detection dog gave indication of the presence

of narcotics in the luggage. The defendants were detained until

a search warrant was obtained and a search of the bags

revealed a large quantity of cocaine. The Court of Appeals

held that the luggage detention was lawful even if the personal

detention of the defendants violated the Fourth Amendment. It

stated:

‘For a discussion of the abilities and value of such dogs in

narcotics detection, see People v. Mayberry, 644 P. 2d 810, 31 Cr L

2190 (Cal. 1982), and Annotation, Use of Trained Dog to Detect

Narcotics Or Drugs As Unreasonable Search in Violation of Fourth

Amendment, 31 ALR Fed. 931.

6

In our view, * * * Terry and Dunaway and their

progeny relate to detention of persons and not inanimate

objects. The rationale relied upon by the Court in those

cases is inappropriate as applied to “things,” a seizure of

which constitutes a substantially less serious intrusion upon

rights of the individual.

We look then to the standard of reasonableness as

required by the fourth amendment in the seizure and

detention of inanimate objects. 654 F. 2d at 1359.

Amici do not deny that the length of time of such a

detention has an important bearing on the issue of reason-

ableness of the investigatory technique chosen by the law

enforcement officers. The length of time involved in the instant

case compares favorably to Klein, Viegas, and West. The

approximate 90 minute delay in the instant case until the

narcotics sniffing dog at Kennedy Airport carried out its

assignment was substantially similar to the delays involved in

those cases. Klein does not indicate the length of the delay;

West indicates that the bag was held for approximately an hour

before the dog arrived; in Viegas the agents were informed that

no dog would be available for four hours when they decided to

detain the bag. It is submitted that there is no sound basis for

distinguishing the instant case from the cases upholding a

temporary detention of luggage based on reasonable suspicion.

Moreover, there is ample justification for the delay in the

instant case. In the absence of a narcotics sniffing dog at

LaGuardia Airport the only reasonable course of action for the

DEA agents was to take the respondent's luggage to Kennedy

Airport for exposure to the dog, not to bring the dog to

LaGuardia Airport to await the arrival of the respondent's

luggage on the flight from Florida, since to do so would have

left Kennedy Airport without the services of the dog. This

Court is no doubt aware that international flights hold the

greatest potential for the influx of narcotics and that such flights

>

predominate at Kennedy Airport as compared to LaGuardia

Airport. In short, the DEA agents took the only feasible steps

they could to apply a reasonable investigatory process to the

respondent’s bags once they had founded suspicion to believe

he was carrying narcotics and they did so within the shortest

period of time possible under the circumstances.

Amici join with the Government in this case in its concern

that law enforcement agents know whether they are permitted

to detain a suspect’s luggage in order to conduct such an

inquiry, or whether they must allow the suspect to leave with his

luggage, with the probable result that any contraband con-

tained therein will be delivered successfully or destroyed. In

the words of Judge Kaufman in the dissenting opinion, the

decision below places an “unwarranted hurdle * * * in the

path of agents engaged in the difficult task of controlling the

heavy traffic in drugs.” 660 F. 2d at 56.

At the same time, however. we also note that the decision

below is additionally troublesome in this already complex field

of Fourth Amendment law, by erroneously taking the position

that the Fourth Amendment draws no distinction between the

seizure of a person and the similar seizure of his property. This

position is simply not supported by decisions of this Court or

any other. This Court has made it clear that the constitutional

duration limit of a detention based on reasonable suspicion will

vary depending upon the interest invaded by the detention.

See, e.g., Van Leeuwen, supra, and Dunaway v. New York, 442

U. S. 200 (1979).

As this Court recognized in Michigan v. Summers,

...$ome seizures admittedly covered by the Fourth

Amendment constitute such limited intrusions on the per-

sonal security of those detained and are justified by such

substantial law enforcement interests that they may be

made on less than probable cause, so long as police have

an articulable basis for suspecting criminal activity. In

these cases, as in Dunaway, the Court was applying the

ultimate standard of reasonableness embodied in the

Fourth Amendment. They are consistent with the general

rule that every arrest, and every seizure having the essen-

tial attributes of a formal arrest, is unreasonable unless it is

supported by probable cause. But they demonstrate that

the exception for limited intrusions that may be justified by

special law enforcement interests is not confined to the

momentary, on-the-street detention accompanied by a frisk

for weapons ...

101 S. Ct. 2587, 2591, 29 Cr L 3097, 3099 (1981) (emphasis

added ).

We submit that the temporary detention of respondent's

luggage was a significantly lesser interference with his individ-

ual liberty than a detention of his person would have been, and

that a reasonable suspicion should be able to support a

detention of property for a period of time that actually exceeds

the maximum period for which a person could be detained

under the same circumstances. In this case, the limited

inconvenience to respondent of having his luggage detained for

approximately 90 minutes was justified by the facts that gave

rise to the agents’ suspicion that the luggage contained nar-

cotics. We ask the Court to find that the detention was

reasonable as a matter of law and fact.

We submit as well, that as to the application of the

exclusionary rule in this type of case and, in fact, all others

involving the Fourth Amendment, exceptions should also be

made for good faith mistakes by law enforcement officers, as

amici have argued in two cases presently pending before this

Court, State of Illinois v. Gates, 88 Ill. App. 3d 1095, 423 N. E.

2d 887 (Ill. 1981), No. 81-430, and State of Florida v. Royer,

389 So. 2d 1007 (Fla. App. 1979), No. 80-2146.

9

CONCLUSION

Amici respectfully submit that the decision of the United

States Court of Appeals for the Second Circuit should be

reversed on the facts and law, and on the basis of sound judicial

policy.

Respectfully submitted,

ne ' FRED E. INBAU, ESQ

ba ——— ~~~ A — .

ianon of wy — bh.

Ma’ 20878 School of Law

EVELLE J. 1 IMinois 60611

Chairman of the Board. ag em A

= - Amencans for Effective Law

Los California 90017 ‘

HOW, G. BERRINGER, 501 Grandview Drive

Assistant q Sune

Americans for Effective Law oe ee

A ~~ ee JAMES P. MANAK, ESQ.

South San Francisco. Americans for Effective Law

33 North LaSalle Street

Suite 2108

Illinois 60602

Counsel for Amici Curiae