# Petition — Astorga-Torres v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1048%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1982 - **Citation:** 459 U.S. 1040 ## Text Office - Supreme Court, FILED OCT 22 ee ALEXA Ho. NDER L. STEVA® CLERK Iu THE SUPREME COURT OF THE UNITED STATES October Term, 1982 RAFAEL ASTORGA-TORRES , Petitioner, vs. UNITED STATES OF AMERICA, Respondent. MICHAELSON & WITHEY BY: ALVIN S. MICHAELSON Suite 2512 1900 Avenue of the Stars Los Angeles, CA 90067 (213) 278-4984 Attorneys for Petitioner QUESTIONS PRESENTED (I) Whether the evidence, seized by federal agents in a warrantless search of Petitioner's motel room many hours after Petitioner had been arrested and taken from the motel room, was admitted into evidence at trial in violation of Petitioner's Fourth Amendment's right against unreasonable searches and sei- zures and in direct contradiction with the decisions of this Court in Mincey v. Arizona, 537 U.S. 385, and Stoner v. California, 376 U.S. 483. (II) Whether the Court's error in giving the Jewell instruction, which the Ninth Circuit held erroneously invited the jury to find that Petitioner was in constructive possession of the heroin possessed by Ambriz, and required rever- sal of his conviction of Count MII i. permeated the jury's finding of guilt on Count I and denied Petitioner his Fifth Amendment right to due process of law? ii. Page QUESTIONS PRESENTED i TABLE OF AUTHORITIES vi PETITION FOR WRIT OF CERTIORARI 1 OPINIONS BELOW 2 JURISDICTION 3 CONSTITUTIONAL PROVISIONS INVOLVED 3 STATEMENT OF THE CASE 4 STATEMENT OF FACTS 9 I. Motion to Supress 9 It. The Trial 19 III. The Jewell Instruction 36 REASONS FOR GRANTING THE WRIT 39 iii. I. Il. THE EVIDENCE SEIZED BY FEDERAL AGENTS IN A WAR- RANTLESS SEARCH OF PETI- TIONER'S MOTEL ROOM, MANY HOURS AFTER PETITIONER HAD ARRESTED AND TAKEN FROM THE ROOM, WAS ADMITTED INTO EVIDENCE AT TRIAL IN VIOLATION OF PETITIONER'S FOURTH AMENDMENT RIGHTS AGAINST UNREASONABLE SEARCHES AND SEIZURES, AND THE DECI- SION OF THIS COURT IN MINCEY V. ARIZONA, 437 U.S. 385 AND STONER V. (1964). THE COURT'S ERROR IN GIVING THE JEWELL IN- STRUCTION, WHICH THE NINTH CIRCUIT HELD ERRON- EOUSLY INVITED THE JURY TO FIND THAT PETITIONER WAS IN CONSTRUCTIVE POS- SESSION OF THE HEROIN POSSESSED BY AMBRIZ, AND REQUIRED REVERSAL OF HIS CONVICTION OF COUNT II, PERMEATED THE JURY'S FINDING OF GUILT ON COUNT I, AND DENIED PETITIONER HIS FIFTH AMENDMENT RIGHT IN DUE PROCESS OF LAW. iv. Page 39 53 CONCLIIS ION APPENDIX "A" OPINION, UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, FILED MARCH 15, 1982 APPENDIX "B" ORDER, UNITED STATES COURT OF APPEALS FOR THE NINTH CIR- CUIT, FILED MAY 21, 1982 APPENDIX "C" ORDER DENYING REHEARING, UNITED STATES COURT OF APPEALS FOR THE NINTH CIR- CUIT, FILED JULY 26, 1982 APPENDIX “D* SUPERSEDING OPINION, UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, FILED JULY 26, 1982 APPENDIX "E" ORDER DENYING PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC, UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, FILED SEPTEMBER 20, 1982 v. Rage Agnello v. United States 269 U.S. 20 (1925) Arellanes v. United States 302 F.2d 603 (9th Cir. 1962) Chapman v. California 386 U.S. 18, 87 &.Ct. 824, 17 L.Bd.2d 705 Chapman v. United States 365 U.S. 610 (1961) Chimel v. California 395 U.S. 752, 89 S.Ct. 2034, 23 L.B4.24 685 (1969) Eng Fung Jem v. United States 281 F.2d 803 (9th Cir. 1960) Jeffers v. United States 342 U.S. 48 (1951) Johnson v. United States 333 U.S. 1068, 92 L.Ed. 436 (1948) Jones v. United States 357 U.S. 493 (1958) vi. 46 47 57 48 46 48 46 Mincey v. Arizona 537 U.S. 385 Silverstone Lumber Co. v. United States 251 U.S. 385 (1920) Stoner v. California 376 U.S. 483 (1964) United States v. Agapito 620 F.2d 324 (24 Cir. 1979) United States v. Batimana 623 F.2d 1366 (9th Cir.), cert. denied, 499 U.S. 1038 (1980) United States v. Camacho 528 F.2d 464 (9th Cir. 1976) United States v. Erwin 625 F.2d 838 (9th Cir. 1980) United States v. Gardner 627 F.2d 906 (9th Cir. 1980) United States v. Jewell 532 F.2d 911 United States v. Mapp 476 F.2d 67 (2nd Cir. 1973) vii. 45 i, 39-41 45, 46, 48 40, 42, 43 48 54 42 i, 36, 38 53, 54, 56-58 46 United States v. Maretta-Bejanno 552 F.2d 1323 (9th Cir. 1977) United States v. Valle Valdez 554 F.2d 911 Vaccaro v. United States 461 F.2d 626 (5th Cir. 1972) Vale v. Louisiana 399 U.S. 30, 90 S.Ct. 1969 (1970) Weeks v. United States 232 U.S. 383 (1914) tatutes 28 U.S.C. § 1254(1) Rules Federal Rules of Criminal Procedure, Rule 29 viii. 57 50, 51 45 6, 36 Constitution United States Constitution: 4th Amendment 5th Amendment ix. i, 4 ii, 3, 53 In THE SUPREME COURT OF THE UNITED STATES October Term, 1982 RAFAEL ASTORGA-TORRES , Petitioner, vs. UNITED STATES OF AMERICA, Respondent. The petitioner, RAFAEL ASTORGA- TORRES, respectfully prays that a Writ of Certiorari issue to review the judg- ment and opinion of the United States Court of Appeals for the Ninth Circuit entered in this proceeding on July 26, 1982. A Petition for Rehearing was denied and the suggestion for Rehearing en banc was rejected by the United States Court of Appeals for the Winth Circuit on September 20, 1982. OPINIONS BELOW A copy of the Winth Circuit Court of Appeals original opinion filed on March 15, 19862, is attached as Appendix "A". The order of the Court of Appeals requesting Appellants’ specific response to Appellees’ Petition for Rehearing is attached as Appendix "B". The order of the Court of Appeals denying Rehearing, withdrawing the March 15, 1982, opinion and superseded by the July 26, 1982, Opinion is attached as Appendix "c". This superseding opinion is attached as Appendix "DD". Lastly, the order of the Court of Appeals denying Appellants‘ Petition for Rehearing and Suggestion for Rehearing en banc is attached as Appendix “E". JURISDICTION The judgment of the Court of Appeals for the Ninth Circuit became final when the Petition for Rehearing was denied and Suggestion for Rehearing en banc was rejected on September 20, 1982. This Court's jurisdiction is invoked under Title 28, United States Code, §1254(1). CONSTITUTIONAL PROVISIONS INVOLVED The Fifth Amendment to the Constitu- tion provides in pertinent part: "[No person shall] be deprived of life, liberty, or property, with- out due process of law..." 3. The Fourth Amendrainc to the Constitu- tion provides in pertinent part: "The right of the people to be secure in their persons, houses, papers and effects, against un- reasonable searches and seizures, shall not be violated, ..." STATEMENT OF THE CASE On June 19, 1980, a federal grand jury for the Eastern District of Cali- fornia indicted defendants, Jose Inez Ambriz-Ambriz (hereinafter referred to as Ambriz), petitioner Rafael Astorga- Torres, (hereinafter referred to as Rafael), and Jesus Torres-Torres (here- inafter referred to as Jesus). Petitioner Rafael was charged in four counts: (1) That commencing on or about June 11, 1980 he conspired to distribute heroin. 4. (2) Count Two (2) of the indictment charged the petitioner with possession with intent to distribute heroin on or about June ll, 1980. (3) Count Three (3) of the indict- ment charged the petitioner with assult on federal officers with a deadly wea- pon. (4) Count Four (4) of the indictment charged petitioner with the unlawful carrying of a firearm during the commis- sion of a felony. On June 23, 1989, petitioner Rafael and Jesus entered pleas of not guilty to all counts of the indictment. At a later date, prior to the trial, co- defendant Ambriz entered a guilty plea to the indictment. On August 22, 1980, petitioner's Motion to Supress Evidence was denied. Prior to trial the court conducted a hearing to rule on the admissibility of evidence found in the septic tank and ruled that the evidence was admissible. Throughout the jury trial the peti- tioner made timely objections to the admissibility of certain evidence and testimony. On November 24, 1980, at the close of the government's case, petitioner made a motion for judgment of acquittal pur- suant to Rule 29 of the Federal Rules of Criminal Procedure, which motion was denied. (Reporter's Transcript [R.T.] 1367.) On November 24, 1980, the Court ruled on the use of various jury instructions to which the petitioner made timely objections. On November 25, 1980, the jury found the petitioner guilty as charged in all counts of the indictment. On January 19, 1981, petitioner was sentenced to the custody of the Attorney General on Counts I and II and to a concurrent period of twelve years with a six year special parole term, and on Counts III and IV to a concurrent period of three years, to run consecutive to Counts I and II. The petitioner was therefore sentenced to a total period of fifteen yeurs. On January 19, 1981, petitioner filed a Notice of Appeal to the Ninth Circuit Court of Appeals. On March 15, 1982, a panel of the Ninth Circuit Court of Appeals reversed petitioner's conviction of Counts I and 7. II and remanded the case for a new trial. On March 27, 1982, the government filed a Petition for Rehearing and Sug- gestion for Rehearing en banc. _ On May 21, 1982, a panel of the Ninth Circuit directed petitioner to respond to the issue of whether a certain state- ment was inadmissible hearsay. On July 26, 1982, the same three judge panel of the Ninth Circuit ex-~- pressly reversed its own opinion of March 15, 1982. The court withdrew its March 15, 1982 opinion, affirmed peti- tioner's conviction of Counts I, III and IV and reversed petitioner's conviction of Count II. On August 12, 1982, petitioner filed a Petition for Rehearing and Suggestion for Rehearing en banc. On September 20, 1982, the Ninth Circuit Court of Appeals denied this Petition and rejected the Suggestion for Rehearing en banc. STATEMENT OF FACTS I. Motion To Supress On August 22, 1980, the Court heard petitioner's Motion to Supress. The government admitted that there was no search warrant obtained for the search of the motel room. The testimony at the hearing demon- strated that on May 3, 1980, and May 14, 1980, Ambriz, by himself, made hand-to- hand sales of heroin to government agents (R.T. 173-175). On June 10, 1980, Ambriz told under- cover agent Delgado that he was going to make another sale of heroin to him on June 11, 1980, and that he may bring some guards (R.T. 176). It was, in effect, stipulated that the source of the heroin to Ambriz was an “old man" from Sinoloa, Mexico and therefore not the defendant Jesus or petitioner Rafael (R.T. 194-195). On June 11, 1980, government agents conducted a surveillance of Ambriz's residence in South Gate, California. Agent Quander testified that on the morning of June 11, 1980, he observed Ambriz alone drive his green Mustang from his residence to the Weatherby Gun Shop and back twice (R.T. 32, 33.). He was then seen driving to a hardware store and back to his residence alone, He was observed leaving his residence again and was lost in traffic. The officers next saw him driving his 10. Mustang with a passenger identified as defendant Torres. They went to a park- ing lot near a 7-1l store where they parked. Rafael went over to a blue Camero where he met Jesus. Rafael and Jesus took the Camero and got gas. Ambriz was seen going into the Tri City Gun Shop and purchasing some shells. Later the two cars, with Ambriz in the green Mustang and Rafael and and Jesus in the Camero, were observed driving up Interstate 5 to Tulare County. Agent Quander testified that at this point they did not have probable cause to obtain an arrest or search warrant (RL. 43). Agent Plavan testified that at around 3:00 p.m. on June 11, 1980, the Mustang and the Camero pulled into the parking lot of the Sky Ranch Motel in Tulare ll. (R.T. 47-48). Ambriz checked into Room 7 and Jesus and Rafael checked into Room 4. Rafael was seen taking a paper bag out of the Camero and bringing it into Room 4, then bringing it back out to the Camero, and then back into Room 4 (R.T. 47). Agent Delgado testified that Ambriz called them and told him that he was staying in Room 7 (R.T. 178). He testi- fied that the plan was that he would test the heroin in Room 7 (R.T. 178). Agent Plavan testified that just prior to 5:00 p.m. he went to the motel office and told Mr. Raga, the manager/ owner, that they were investigating a narcotics case (R.T. 49-50). At that time he obtained the manager's consent to enter Rooms 4 and 7 (R.T. 51, 132). 12. Agent Delgado testified that about 5:00 p.m. he met Ambriz alone in the parking lot of the motel. He asked Ambriz where the heroin was and Ambriz told him it was in his room (Room 7). Ambriz went to room 7 and came out with a bag, showed him the heroin, and Del- gado walked to his car, ostensibly to get the money (R.T. 180). Agent Delgado then took off his hat which was the pre- arranged arrest signal, and Ambriz was arrested and taken into custody outside the motel in the parking lot (R.T. 182). At this point cgeveral (which at trial it was determined to be approximately 15) state and federal officers converged on Room 4, banging on the door and yell- ing in Spanish and English that they were federal police (R.T. 52). About thirty seconds later an officer thought 13. he heard a clicking sound of a gun in- side the room. They immediately kicked in the door, and a gun battle ensued (R.T. 52-54). After approximately ten minutes a tear gas canister was shot at the room and the officers observed the weapons being thrown out of the room (R.T. 55). The petitioner Rafael came out of the room with his hands up (R.T. 55). He had been seriously wounded in the gun battle. He came out, laid face down on the pavement, was arrested and was taken into custody in the parking lot outside the motel room (R.T. 55, 65, 88). Thereafter, Jesus crawled out of the motel room and collapsed on the pavement. He was arrested and taken into custody in the parking lot (R.T. 55, 56, 65.). Jesus was seriously in- jured in the gun battle (R.T. 88, 156). 14. It should be noted that at trial it was shown that the officers feared that Jesus was going to die (R.T. 345-346). Both were secured and subsequently taken to a hospital for emergency care. Agent Plavan testified that he ar- rested Jesus and Rafael for distribution of heroin and conspiracy to distribute heroin based upon the information that they had been "involved" with Ambriz in the Los Angeles area (R.T. 65). Agent Delgado testified that they had been advised that there were only three suspects total -- Ambriz, Jesus and Rafael (R.T. 197). Agent Plavan testified that after he arrested and secured Jesus and Rafael, in the parking lot outside of the hotel, that he entered Room 4 (R.T. 84). As he entered the room Agent Hendrix yelled to 15. him that all was clear (R.T. 95). He testified that as he understood it, Agent Hendrix had preceded him and had secured the room (R.T. 84). It should be noted that at the trial in this mat- ter Agent Hendrix testified that he had gone into Room 4 and found that there was no one in there and that he said it was secure (R.T. 366, 954). Agent Plavan then entered the hotel room which he described as being one large room and a bath (R.7. 61). He testified that he visually inspected the main room, walked into the bathroom and heard and saw water running full in the sink. At that time he inspected the toilet bowl and found torn papers, docu- ments and currency. These documents included the drivers’ iicenses of Rafael and Jesus, a wallet and miscellaneous 16. money and pictures. He reached into the toilet bowl and put the documents on top of the tollet (R.T. 56). He testified that he did not seize anything at that time (R.T. 90). Much later that night, without any warrant, the agents returned to the room and searched it and seized the documents in the bathroom and photographed the room (R.T. 191). The next day the agents obtained a search warrant for the automobiles and found nothing (R.T. 101- 102, 192). At the conclusion of the hearing the petitioner's Motion to Suppress the documents found in the toilet bowl in Room 4 was denied. The court stated that it denied the motion on the grounds that the manager consented to the search 17. and that it was incident to the arrest of the appellants (R.T. 214). The Ninth Circuit Court of Appeals upheld the denial of petitioner's Motion to Suppress (Appendix "D", Op. at p. 4). The Court found that Agent Plavan's initial warrantless entry into the motel room was proper (Op. at p. 4). The Court reasoned that this entry was jus- tified as a protective search for addi- tional dangerous persons, to guard against threat of fire created by the tear gas canister and to prevent des- truction of evidence (Op. at p. 5). Further, the agents could later return without a warrant to retrieve the docu- ments seized from the toilet during the earlier "justifed" entry, because “there was no further prejudicial intrusion upon [petitioner's] privacy, especially 18. in light of [his] ciear abandonment of the seized items." (Op. at p.6.) II. The Triv« The government's theory of the case was that Ambriz had brought fifteen (15) ounces of heroin with him to the motel, that he delivered seven (7) ounces to Agent Delgado and left the other eight (8) ounces with Jesus and Rafael in Room 4. Further, that Jesus and Rafael ini- tiated a gun battle with the agents for the purpose of destroying the contraband and flushed the "“missing" eight (8) ounces down the toilet. The government offered the following evidence in an effort to prove that Jesus and Rafael actually possessed the eight (8) ounces of heroin which Ambriz 19. was supposed to, but did not, deliver on June ll. Ambriz had told the Agent Delgado that he would sell him fifteen (15) ounces of heroin on June 11 at $3,300.00 per ounce for $49,500.00. On June 10 he told Delgado that he would bring guards with him (R.T. 190- 210.) but that the transaction would be with him alone (R.T. 198-199). However on June 11 he handed Agent Delgado a bag containing only 7 condoms each holding one (1) ounce of heroin (R.T. 239-242). A motel brochure was found in Room 7 with the figures seven (7) times thirty- three (33) and at the bottom a total of $49,500.00 (R.T. 1072-1076, 705-745). These numbers corresponded to the volume Agent Delgado was to receive and the price he was to pay on June 11. 20. The evidence against petitioner at most showed that he was associated with Ambriz but in no way supported that he knew Ambriz possessed heroin or possessed it himself. The only evidence regarding the petitioner was that he was observed briefly speaking with a lady and Ambriz in the yard of the Ambriz residence on May 14, 1980 (R.T. 397) and that he drove up to the Sky Ranch Motel with Ambriz and Jesus on June 11, 1980, and checked into Room 4 with Jesus. All of the drug transactions and conversa- tions were with and by Ambriz alone. As the trial court observed there was no proof prior to June ll that a con- spiracy existed, i.e. that anyone other than Ambriz was knowingly involved in the sale of the heroin. Further, as the trial court noted, the evidence at the 21. end of the government's case at most suggested that on June 10, a conspiracy was about to be formed because of Ambriz's June 10 statement that he was going to bring guards with him (R.T. 1283-1286). Ambriz repeatedly stated that the transaction was to be with him alone (R.T. 198-199, 212). A vast majority of the testimony during the three week trial related to the May 3 and May 14 heroin transactions between Ambriz and the agents prior to June 11, 1980. These events occurred prior to the alleged date of the con- spiracy, without any demonstrated invol- vement or presence of the petitioner. Over petitioner's objection, the Court admitted into evidence the heroin pur- chased from Ambriz on May 3, May 14 and June 11 and denied petitioner's motion 22. to strike testimony regarding the acts and declarations of aAmbriz prior to June 11 (R.T. 1269, 1322). Agent Delgado testified that on May 3, 1980, he and Agent Camarena met with Ambriz alone and had a conversation with him in which they purchased an ounce of heroin from him for $3,350.00 (R.T. 173-175). He testified that at that time he told Ambriz that if they liked the heroin they “would get in contact with him, and probably order up some more." (R.T. 175.) The condom of heroin he received on May 3, 1980, was identified by the witness (R.T. 176). Agent Delgado testified that after May 3, 1980, 2 had additional conversa- tions with Ambriz (R.T. 178). He testi- fied that on May 14, 1980, he purchased two ounces of heroin from Ambriz alone 23. for a total of Sixty-six Hundred Dollars ($6,600.00) (R.T. 178). He then identi- fied the heroin purchased on that date (R.T. 179). He testified that between May 14 and June 11, 1980, he had several conversa- tions with Ambriz negotiating the deli- very of heroin (R.T. 183). He testified that they spoke about the purchace of thirty ounces of heroin for $99,000.00 (R.T. 183-184). The conrt agreed with the petitioner that the statements or conduct of Ambriz made prior to the formation of the al- leged conspiracy were not admissible against petitioner (R.T. 1288-1289). Further, that there was no way the pro- secutor could tie Jesus or Rafael to the May 3 transaction (R.T. 1288-1289). The court ultimately ruled that the evidence 24. was admissible against Jesus and Rafael on the grounds that it was relevant to the case and that it tended to establish a “course of conduct" by Ambriz (R.T. 1327). Accordingly, the Court gave a limiting instruction (R.T. 1498-1501). The government's comments during argument on the admissibility of Ambriz's conduct and statements reveal that without this evidence “all [the government had] is seven ounces of heroin and some heroin found in condoms in the septic tank." (R.T. 1291, lines 16-19; see below.) The prosecutor argued that the acts and declarations of aAmbriz prior to June ll, 1980, were necessary to prove that “Jesus and Rafael were members of the conspiracy to distribute heroin on June 11, that Jesus and Rafael were in possession of heroin with the intent to distribute it, and that Jesus and Rafael initiated a gun battle with the agents for the purpose of disposing of the contraband." (R.T. 1314.) The government offered the following evidence to show that Jesus and Rafael had flushed the “missing" eight (8) ounces down the toilet. Approximately two months after the arrest of Jesus and Rafael, federal agents pumped out one of the septic tanks of the motel and found twelve (12) condoms. Three of these were saved and admitted into evidence at trial. Two of the condoms were partially torn and had knots on the end (R.T. 253-258). The third condom had some liquid and eub- stance in it (R.T. 251-252). The condoms were analyzed and the partially torn condoms contained no controlled substance. The one condom with the substance in it was analyzed and found to contain heroin of seven percent (7%) purity (R.T. 842-844). The heroin seized from Ambriz on June 11 was found to be fourteen percent (14%) pure (R.T. 830-837). The chemist testified that the liquid from the septic tank in the condom would lower the percentage of purity of the heroin (R.T. 842). There were several septic tanks at the motel and room 4 and other rooms flushed into the septic tanks where the evidence was found. Room 7 and other room flushed into other tanks (R.T. 695). The evidence showed that the heroin seized from Ambriz on June 11, 1980, was 27. tied in Trojan condoms with a date of l- 80, that the two partial condoms found in the septic tank were Trojan condoms Gated 12-79 and that the “full condom" was a Trojan condom but that you could not read the date. All that could be. seen was the number 9 (R.T. 844-847). Mr. Brenner of Young's Rubber Corpora- tion, who manufacture Trojan condoms, testified that a Trojan condom dated 12- 79 would probably reach the market by Pebruary, 1980, but not before December, 1979 (R.T. 641-7). The documents found in the toilet of Room 4 were analyzed and the ch