Petitioners Reply Brief — Segura v. United States

NOV 2 1983

NO. 82-5298

ctunamnenpnnsstnhensatenniensiipee sii

IN THE

Supreme Court of the Anited States

OCTOBER TERM. |983

ANDRES SEGURA and LUZ MARINA COLON,

Petitioners,

UNITED STATES OF AMERICA.

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

REPLY AND SUPPLEMENTAL BRIEF

OF PETITIONERS

PAUL E. WARBURGH. JR.

Axelrod & Warburgh

370 Lexington Avenue

New York, New York 10017

(212) 689-8970

PETER J. FABRICANT

Dickstein & Fabricant

24 East 21st Street

New York, New York 10010

(212) 505-0050

Counsel for Petitioners

CLB PUBLISHERS & LITHOGRAPHERS, INC. © (301) 833-5220

1. Respondent contends (Br. 14-23) that the officers’

entry into petitioners’ apartment to secure the premises was

not an illegal seizure of all of its contents. In support of this

argument. respondent distinguishes between “searches” and

“seizures with respect to the Constitutional requirement of a

warrant, and goes so far as to state that seizures, which re-

spondent terms “less intrusive’, are generally permitted

without a warrant. (Br. 18)

In so arguing. respondent mistakingly relies on Texas v.

Brown, US. . 103 S.Ct. 1535 (1983). Texas v.

Brown, supra, dealing with the “plain view exception to the

warrant requirement, holds that police officers may im-

mediately seize a suspicious object, without a warrant, if they

perceive it while lawfully engaged in an activity in a particular

place. An object is in “plain view” if it can be seized without

compromising any interest in the personal privacy of a

citizen. Jd. at 1546 (Stevens, J. concurring).

In the instant case, the objects of the seizure were no/ in

plain view, but were within a dwelling that the officers unlaw-

fully entered and occupied. The actions of the police violated

both the petitioners’ interest in retaining possession of prop-

erty (““seizure’’) and their interest in maintaining personal

privacy (“search’’). Since a person has the highest possible

expectation of privacy in his home, Payton v. New York, 445

U.S. 573 (1980), the illegal entry and nineteen hour occupa-

tion constituted an infringement not only of petitioners’ right

of possession in the dwelling and its contents, but also their

right of personal privacy against the probing eyes of the

police.

2. Respondent's contention that “police may seize prop-

erty that they have probable cause to believe contains contra-

band for the limited period necessary to obtain a search

warrant” (Br. 19-20) is inapplicable where the “property”

consists of a dwelling and its contents. The cases cited by re-

spondent involve luggage seizures from automobiles, where,

because of the inherent mobility of the vehicle, and the

lessened expectation of privacy one has while driving or rid-

ing in an automobile, a narrowly defined exception has been

made to the rule that the police must obtain a warrant before

seizing property. See, e.g., Chambers v. Maroney, 399 U.S.

42 (1970).

The interest in the privacy of the contents of a suitcase or a

footlocker is littke compromised by its seizure by the police in

a public place or on a public highway. But when the suitcase

is inside a house that the police illegally enter and occupy, no

decision by this Court has allowed the seizure of such prop-

erty pending the obtaining of a search warrant. The privacy

interests of petitioners have been violated by the initial entry,

and the violation continues for every minute of the illegal

occupation,

3. Respondent argues (Br. 21-23) that the degree of

seizure of the articles in the dwelling would be the same

whether the premises were secured from outside or from

within, and that therefore the occupation of the dwelling by

the police is irrelevant to the question of whether there was an

illegal seizure. This argument ignores the difference between

sound, legitimate police activity and the violation of

petitioners’ Constitutional rights.

Quite simply, the illegal entry and occupation of the dwell-

ing constituted a seizure of the dwelling and the later-

discovered contraband, while if instead the police had never

entered petitioners’ apartment, no unconstitutional seizure of

either the dwelling or its contents would have occurred.

‘ndeed, it is often the case in Fourth Amendment juris-

prudence that had the governmental officials acted in a lawful

manner, the end result would have been the same: the seizure

of contraband or other incriminating evidence. See, e.g.,

Johnson v, United States, 333 U.S. 10(1948); McDonald y.

United States, 335 U.S. 451 (1948); Mincey v. Arizona,

437 U.S. 385 (1978). The “ends” of all police investigations

are the detection and arrest of criminals and the seizure of

illegal or incriminating evidence. The “means” utilized by

the police are regulated by the Constitution and are always

subject to the scrutiny of the judicial system. The ends cannot

be allowed by this Court'to justify the means; if they are, the

protections of the Fourth Amendment will become greatly

diminished, and the Warrant Clause will cease to have any

meaning at all.

4. Respondent's argument (Br. 23-33) that the evidence

seized under the warrant is not suppressible as the fruit of an

illegal entry is a viable contention only if this Court decides

that the initial illegal entry into and nineteen hour occupation

of petitioners’ home did not constitute a “seizure” of its con-

tents, including the contraband discovered during the execu-

tion of the search warrant. Petitioners contend (Br. of Pet.

22-34) that the contraband seized was primary rather than

derivative evidence and that therefore the doctrines of ‘‘at-

tenuation” and “independent source” are inapplicable.

A very recent decision by the Oregon Supreme Court con-

sidered the question of whether the unlawful seizure and

securing of a dwelling required that marijuana discovered

during the execution of a warrant obtained two-and-a-half

hours after the initial entry should be suppressed. Svate v.

Hansen, 295 Or.Rptr 78, 664 P.2d 1095 (Or. 1983). The

court rejected the government's reliance on Wong Sun v.

United States, 371 U.S. 417 (1963), finding that the instant

case was concerned with the very evidence the police sought

to obtain by “securing” the premises, i.e, “primary evidence’’,

in contrast to Wong Sun, where the United States Supreme

Court was concerned with the admissibility of “‘deriva-

tive’ evidence.

After refusing to go so far as to hold that a seizure of a

residence is a seizure of all its contents, the Hansen court

sought to determine exactly what is seized when a residence

is “secured” or ‘‘frozen’’. First, it was held that such items of

contraband as were actually discovered by the entering

officers or which were clearly visible to the officers should be

deemed to be seized. Second, as to contraband not dis-

covered or visible on the officers’ initial entry, Hansen looked

to the purpose of the unlawful conduct. The purpose of the

entry and occupation was to arrest and convict the defendant

for possession of the primary evidence, the marijuana, and

the unlawful entry figured in the accomplishment of that pur-

pose by ensuring that the contraband believed by the police to

be present could not, and would not, be removed. “The

‘securing of the premises as effectively reduced the man-

juana to the control of the trespassing police as if they had

actually discovered and taken physical possession of it. We

hold this to be a seizure under both the state and federal con-

stitutions and thereby proscribed as being unreasonable for

want of a warrant.” Hansen, supra at 664 P.2d 1105-6.

Petitioners submit that the holding in Hansen, supra, was

based on a proper and logical analysis of the law, and urge

this Court to follow the reasoning of that case.

5. Respondent asserts that “the fact that their (pe-

titioners’) apartment was secured against the entry by them or

others . . . did not really affect them, and the delay in getting

the warrant did not inconvenience then.” (Br. 42) Such an

argument undercuts the importance of the Warrant Clause of

the Fourth Amendment, which affects us all, and the signifi-

cant role of a judicial warrant.

The Fourth Amendment has nothing to do with the “*con-

venience” of an individual defendant. It is, like all of the Bill

na"

of Rights, an enunciation of rules of conduct that the govern-

ment must obey. Its violation affects not only criminals or

those thought to be criminals, but the life and liberty of us all.

Spano vy. New York, 360 U.S. 315, 320-321 (1959).

Had a warrant been obtained by the police before their

illegal entry and occupation of petitioners’ dwelling, such a

warrant would have provided the detached scrutiny of a neut-

ral magistrate and would have described the proper bounds

once the search had begun. Further. a warrant would have

assured petitioners “of the lawful authority of the executing

officer, his need to search, and the limits of his power to

search. United States v. Chadwick, 433 U.S. 1. 9

(1977).

For the foregoing reasons and the reasons stated in

petitioners’ opening brief. the judgments of the court of

appeals should be reversed.

Respectfully submitted,

PAUL E. WARBURGH, JR.

Axelrod & Warburgh

370 Lexington Avenue

New York. New York 10017

PETER J. FABRICANT

Dickstein & Fabricant

24 East 21st Street

New York, New York 10010

Counsel for Petitioners