Opposition Brief — Fambro v. United States

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No. 91-769

Iu the Supreme Court of the United States

OCTOBER TERM, 1991

ARTHUR ALVIN FAMBRO, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, III

Assistant Attorney General

THOMAS M. GANNON

Attorney

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTION PRESENTED

Whether there was probable cause to support the

warrantless arrest of petitioner in the immediate vi-

cinity of a just-completed drug transaction.

(1)

TABLE OF CONTENTS

Opinion below

Jurisdiction

Statement

Argument

Conclusion

TABLE OF AUTHORITIES

Cases:

Brinegar V. United States, 338 U.S. 160 (1949)

Gerstein V. Pugh, 420 U.S. 103 (1975)

Illinois Vv. Gates, 462 U.S. 213 (1983)

Johnson V. United States, 333 U.S. 10 (1948)

Michigan V. DeFillippo, 443 U.S. 31 (1979)

New York Vv. Belton, 453 U.S. 454 (1981)

Rawlings V. Kentucky, 448 U.S. 98 (1980)

Sthron Vv. New York, 392 U.S. 40 (1968)

Terry V. Ohio, 392 U.S. 1 (1968)

United States Vv. Buchannon, 878 F.2d 1065 (8th

Cir. 1989)

United States Vv. Robinson, 414 U.S. 218 (1973)

United States v. Watson, 423 U.S. 411 (1976)

Constitution and statutes:

U.S. Const. Amend. IV

21 U.S.C. 846

Miscellaneous:

3 W. LaFave, Search and Seizure (2d ed. 1987)

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Iu the Supreme Court of the United States

OCTOBER TERM, 1991

No. 91-769

ARTHUR ALVIN FAMBRO, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. B1-

B10) is unreported, but the judgment is noted at 935

F.2d 1296 (Table).

JURISDICTION

The judgment of the court of appeals was entered

on May 24, 1991. A petition for rehearing was denied

on July 24, 1991. Pet. App. Al-A2. The petition for

a writ of certiorari was filed on October 22, 1991.

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1). -

(1)

2

STATEMENT

Following his conditional plea of guilty in the

United States District Court for the Southern District

of Georgia, petitioner was convicted of conspiracy to

distribute cocaine base, in violation of 21 U.S.C. 846.

The district court sentenced him to a term of 170

months’ imprisonment, to be followed by a five-year

period of supervised release, and fined him $5,000.

The court of appeals affirmed.

1. The evidence adduced at a pretrial suppression

hearing showed that on February 26, 1990, Sherod

Martin, a confidential informant, telephoned Sims

Walker to arrange a multi-kilogram purchase of co-

caine. Walker told Martin to contact him the next

day about the cocaine purchase. The following day,

Martin contacted Walker by pager. Walker called

Martin back two minutes later. The two men agreed

that they would meet at approximately 4:00 p.m, at a

local McDonald’s restaurant and that Martin would

purchase one kilogram of cocaine for $26,000. Pet.

App. P2; Gov’t C.A. Br. 2-5.

Police officers went to the restaurant, established

surveillance, and arranged to videotape the side of the

restaurant where Martin was to park. They also

equipped Martin with a transmitter and gave him

$26,000. After Martin parked at the restaurant, a

woman drove up with Walker and a second man,

Bobby Lee Freeman. Walker and Freeman got into

Martin’s car and discussed details of the cocaine

transaction, including price and amount. Walker in-

dicated that his supplier was nearby. He also implied

that he had just obtained the cocaine, saying that he

had picked it up, had not touched it, hut had brought

it directly to Martin. Walker then gave Martin the

3

cocaine in exchange for $26,000. Pet. App. B2-B3;

Gov’t C.A. Br. 3.

The police officers had planned to arrest Walker and

Freeman while they were in Martin’s car, but the

two men left the car before the principal surveillance

officer signaled the police to move in. Walker and

Freeman entered the McDonald’s restaurant. A min-

ute later, the officers saw Walker, Freeman, peti-

tioner, and three other persons in the parking lot on

the other side of the restaurant. Walker was speaking

to petitioner. The officers identified themselves, and

not knowing where the $26,000 was, attempted to de-

tain all six of the persons in the parking lot. The

officers observed petitioner walking away and stopped

him. Pet. App. B3-B5; Gov’t Br. 3-4.

While patting petitioner down, a police officer felt

a soft object in petitioner’s front shirt pocket. Think-

ing that the object was drugs, the officer removed it

from petitioner’s pocket. The object was a small

plastic bag containing pieces of white compressed

powder that appeared to be cocaine. Petitioner was

arrested and charged with possession of cocaine. Ap-

proximately two and a half hours later, a*ter he had

been advised of, and waived, his constitutional rights,

he gave agents a statement admitting that he had

helped to obtain the cocaine used in the Walker-

Martin transaction. Pet. App. B5. Gov’t C.A. Br. 4-5.

2. A magistrate judge recommended that the dis-

trict court grant petitioner’s motion to suppress

the cocaine found in his shirt pocket. He _ rea-

soned that until the seizure the officers had no reason-

able suspicion that petitioner had engaged in any

criminal activity, including the just-completed one-

kilogram cocaine transaction. Pet. App. B5, D1-D29.

4

The district court disagreed. The court found that

there was an ample showing of probable cause to

believe that petitioner was involved in the drug trans-

action. The court concluded that if there was probable

cause to arrest, the associated search was permissible.

Pet. App. B5-B6, C1-C3. See Gov’t C.A. Br. 7-8.

3. The court of appeals affirmed. Pet. App. B1-

B10. That court agreed with the district court that in

light of ‘‘the totality of the circumstances as perceived

by the officers at the time of the arrest, * * * there

was probable cause to support [petitioner’s] warrant-

less arrest.” Jd. at B8. It concluded that the search

of petitioner’s person and the confiscation of the co-

caine did not violate petitioner’s rights because the

search “‘was incident to a lawful arrest.” /bid., citing

Rawlings v. Kentucky, 448 U.S. 98, 111 & n.6 (1980).

The court of appeals rejected petitioner’s contention

that the search was unlawful because it was based on

his mere association with, or proximity to, others in-

dependently suspected of criminal activity. Pet. App.

B9. The court observed that because “the police had

reason to believe that Walker’s supplier was in the

vicinity of the restaurant and that Walker intended

immediately to hand over the proceeds of the deal to

that supplier,” they could have reasonably concluded

that ‘“‘the first person that Walker was seen speaking

to, less than a minute after the transaction, might

indeed be that supplier.” /d. at B9-B10.

5

ARGUMENT

Petitioner contends (Pet. 17-21) that the warrant-

less search of his person was unreasonable under the

Fourth Amendment because it was not supported by

probable cause, but instead was based on mere suspi-

cion, That contention is without merit and presents

no issue warranting this Court’s review.

The principles governing this case are well settled.

Law enforcement officers may make warrantless ar-

rests if they have probable cause to believe that the

suspect has committed or is committing a crime.

United States v. Watson, 423 U.S. 411, 415-417

(1976) ; Gerstein vy. Pugh, 420 U.S. 103, 113 (1975).

Probable cause to arrest exists when the facts -and

circumstances at hand would lead a prudent person

to conclude that it is likely that an offense has been

or is being committed. See Brinegar v. United States,

338 U.S. 160, 175-176 (1949). The probable cause

determination is based on the totality of the circum-

stances, viewed in a nontechnical, common sense, and

practical manner. See //linois y. Gates, 462 U.S. 213,

230-232 (1983).

Once police officers have made a valid arrest, they

may conduct a warrantless search of the suspect.

New York vy. Belton, 453 U.S. 454, 461 (1981);

Michigan y. DeFillippo, 443 U.S. 31, 35 (1979).

While the authority to make a search incident to an

arrest derives from a police officer’s general need to

disarm suspects or preserve evidence, United States v.

Robinson, 414 U.S. 218, 234-235 (1973), the legality

of the search depends only on the legality of the ar-

rest, id. at 235. When police make a search incident to

an arrest, they are not limited to a weapons pat-down

of the sort that is permissible during an investigative

detention, but may conduct a full search for weapons

and evidence. Jd. at 229, 235.

6

In the present case, as both of the courts below

correctly found, the officers had probable cause to

arrest petitioner. From the conversations they had

monitored, the officers knew that Walker had just

completed a $26,000 drug transaction and that Walk-

er’s supplier was likely to be in the immediate vicinity

of the McDonald’s restaurant. Only a minute after

the transaction, they saw Walker speaking to peti-

tioner in the restaurant parking lot, and they then

saw petitioner attempt to leave when the police ar-

rived. Those facts and circumstances were sufficient

to establish probable cause to believe that petitioner

was involved in the drug transaction. See Brinegar v.

United States, 338 U.S. at 175-176.

Because the officers had probable cause to arrest

petitioner, they were entitled to detain him, search

his person incident to the arrest, and seize the drugs

found in his shirt pocket. United States v. Robinson,

414 U.S. at 235. The exact order of the police action

in this case is immaterial. This Court has held that

where the formal arrest quickly follows the chal-

lenged search, it is not important that the search pre-

ceded the arrest. See Rawlings v. Kentucky, 448 U.S.

at 111. Petitioner’s formal arrest occurred imme-

diately after the search of his person and satisfied the

requirement that the search incident to arrest be

closely related in time to the arrest.

The cases petitioner cites (Pet. 20, 22) do not sup-

port a different result. In Sibron v. New York, 392

U.S. 40, 62 (1968), this Court held simply that the

defendant’s conversations with narcotics addicts did

not, without more, support an inference that the de-

fendant was engaged in drug trafficking. In Johnson

v. United States, 333 U.S. 10, 16 (1948), the govern-

ment effectively conceded that it did not have prob-

able cause to arrest the defendant before it conducted

7

a warrantless search of her room. The instant case

is quite different. Petitioner’s conversation with Wal-

ker took place only a minute after a major drug

transaction and shortly after Walker had given the

officers reason to believe that his cocaine supplier was

in the immediate vicinity. In those circumstances, as

the courts below correctly ruled, the officers had prob-

able cause to believe that petitioner was also involved

in the drug transaction. *

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, III

Assistant Attorney General

THOMAS M. GANNON

Attorney

JANUARY 1992

* Even if, as petitioner argues, the evidence known to the

police just prior to the detention of petitioner had not risen

to the level of probable cause, it clearly amounted to reason-

able suspicion. As a result, the police were entitled to detain,

frisk, and question petitioner. See Terry v. Ohio, 392 U.S.

1, 21 (1968). When, in the course of the frisk, a police officer

felt an object that he believed from his past experience to be

drugs, the officer’s reasonable suspicion to detain and frisk

petitioner ripened into probable cause to arrest him. See 3

W. LaFave, Search and Seizure § 9.4(c), at 524 (2d ed. 1987).

At that point, the officers were entitled to search petitioner’s

person incident to arrest and to seize the drugs from his shirt

pocket. See United States v. Buchannon, 878 F.2d 1065, 1067

(8th Cir. 1989).

7 U. S&S. GOVERNMENT PRINTING OFFICE, 1992 312324 45230