Opposition Brief — Cochran v. United States

Sunrane Court, U.S.

=) FILED

No. 91-916 : FEBS 4992

HE CLERK

Iu the Supreme Court of the United States

OCTOBER TERM, 1991

STEVEN FLETCHER COCHRAN, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, III

Assistant Attorney General

THOMAS E. BooTH

Attorney

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTION PRESENTED

Whether the stop of petitioner’s car and the subse-

quent seizure of an ammunition clip and a firearm

from it violated the Fourth Amendment.

(I)

TABLE OF CONTENTS

TREE Ea AE ORAS SE EERE CAD ESE Se aE EE aS 1

EEE ERI SR OCC AC ECP, RR 1

SER STE Sa is Ste es ot sve PRAT Se Dee SE SOND 1

EAL e SO OE LD Ae Te SOS 4

IIIT cass sleuieicas ccassaessicanlicheatecsteaetaltcesnenicicaidskebinacaxcebesseniacnamensoaae 6

TABLE OF AUTHORITIES

Cases:

Brinegar Vv. United States, 338 U.S. 160 (1949) ___.... 4

Michigan Vv. Long, 463 U.S. 1082 (1983) 2.00.00... 5

Michigan v. Summers, 452 U.S. 692 (1981) ........... 3,4

New York v. Belton, 453 U.S. 454 (1981) ......0000... 5

United States v. Paulino, 850 F.2d 93 (2d Cir.

1988), cert. denied, 490 U.S. 1052 (1989) .......... 5

United States v. Ross, 456 U.S. 789 (1982) ............. 5,6

Jnited States v. Sharpe, 470 U.S. 675 (1985) _....... 5

United States v. Watson, 423 U.S. 411 (1976) _........ 4

United States v. Williams, 822 F.2d 1174 (D.C.

rll a As Elan Pan TORE HERS 5

Constitution and statutes:

ee 4,5,6

es, ccscmencinbinienessabousievsan 2

a 1,3

Iu the Supreme Court of the United States

OCTOBER TERM, 1991

No. 91-916

STEVEN FLETCHER COCHRAN, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

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

1-10) is reported at 939 F.2d 337.

JURISDICTION

The judgment of the court of appeals was entered

on July 17, 1991. A petition for rehearing was de-

nied on September 6, 1991. Pet. App. 11-12. The

petition for a writ of certiorari was filed on Decem-

ber 5, 1991. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

STATEMENT

Following a plea of guilty in the United States

District Court for the Eastern District of Michigan,

petitioner was convicted of possessing an unregistered

(1)

2

firearm not identified by its serial number, in viola-

tion of 26 U.S.C. 5861(d). Following a jury trial

in the same court, he was convicted of interstate

transportation of a firearm by a felon, in violation of

18 U.S.C. 922(g)(1). He was sentenced to concur-

rent terms of 52 months’ imprisonment. The court

of appeals affirmed. Pet. App. 1-10.

1. On February 21, 1990, after receiving informa-

tion that petitioner was a drug dealer, law enforce-

ment agents began surveillance of his residence. The

agents observed petitioner take a thickly packaged

rectangular box from his coat, place it in the trunk

of his car, and drive to the residence of George Reid.

The agents, who were experienced investigators, be-

lieved that petitioner’s box contained drugs, because

kilogram quantities of cocaine are frequently trans-

ported in packages of that style and shape. The

agents also knew that petitioner had numerous ar-

rests for carrying weapons in his car, including one

incident in which Reid was a passenger. Pet. App.

19-32.

Based on their observations, the agents obtained a

search warrant for petitioner’s residence and began

administrative forfeiture proceedings against peti-

tioner’s car. On February 23, 1990, the agents ar-

rived at petitioner’s residence to execute the search

warrant. To promote a safe and orderly search, the

agents decided to seek petitioner’s assistance in ex-

ecuting the warrant. They knew that he carried

arms and kept a guard dog on the premises. Before

the agents approached the house, however, petitioner

drove away from the premises in his car. Pet. App. 2,

33-34.

Two agents stopped petitioner’s car and ordered

him to step outside. Petitioner quickly moved his

right arm, causing the agent on the driver’s side to

3

open the car door and repeat his order for petitioner

to exit. When petitioner continued his motion, the

agent pulled petitioner out of the car, while the other

agent opened the car’s glove box, causing a loaded

ammunition clip to fall out. The agents knew that

petitioner, as a convicted felon, was not entitled to

possess a firearm or ammunition. The agents ar-

rested petitioner and later searched the car and

seized an unregistered machine gun from the trunk.

Petitioner filed a pretrial motion to suppress the evi-

dence seized from his car. The district court denied

the motion. Pet. App. 2-8, 34-36, 76-79, 100-102,

155-161.

2. The court of appeals affirmed petitioner’s con-

viction, rejecting his contention that the evidence

seized from his car should hzve been suppressed. The

court concluded that under Michigan v. Summers,

452 U.S. 692 (1981), the agents properly stopped

petitioner, after he departed from his residence, to

seek his assistance in executing the warrant. The

court rejected petitioner’s argument that the agents

manipulated the circumstances to permit them to

search petitioner’s car. Pet. App. 3-5. The majority

also concluded that the search of the glove box in

petitioner’s car was justified by the agents’ concern

for their own safety, which was precipitated by peti-

tioner’s threatening arm movement, and that the dis-

covery of the ammunition clip gave the agents proba-

ble cause to search the car and to seize the clip and

the firearm. /d. at 6.

Judge Wellford dissented. In his view, the decision

in Michigan vy. Summers did not permit law enforce-

ment agents to detain petitioner once he was away

from his residence or to return him to the premises

to assist in executing the search warrant. Pet. App.

8-10.

4

ARGUMENT

Petitioner contends (Pet. 12-21) that the govern-

ment violated the Fourth Amendment by stopping his

car and subsequently seizing a machine gun and am-

munition clip from it. In particular, he maintains

that the court of appeals misapplied Michigan v. Sum-

mers, 452 U.S. 692 (1981), because the right of law

enforcement agents armed with a search warrant for

a residence to restrain an occupant from leaving the

premises does not extend to detaining a person who

has already driven away. See Pet. 15-17. There is

no need to reach that issue, however, because the law

enforcement agents had probable cause—or at least

reasonable suspicion—to stop petitioner while he was

in his car, based on the information supporting the

search warrant. Furthermore, even if there is a

question under Summers whether the agents could

force petitioner to return to his residence, they cer-

tainly were entitled, at the leasc, to stop petitioner

to request his assistance in executing the warrant.

Thus, petitioner was lawfully stopped, and his subse-

quent threatening motion justified the search of his

car.

1. Law enforcement agents can arrest a suspect

for a felony in a public place without a warrant if

they have probable cause to beiieve that the suspect

has committed a crime. United States v. Watson, 423

U.S. 411 (1976). Probable cause exists when the

facts and circumstances within the arresting officers’

knowledge are sufficient for a reasonable person to

believe that the suspect has committed or is commit-

ting a crime. Brinegar v. United States, 338 U.S.

160, 175-176 (1949). Here, the law enforcement

agents were entitled to stop petitioner’s car because

they had probable cause, based on the information

justifying the search warrant, to believe that peti-

5

tioner was engaged in drug trafficking. Because the

agents had probable cause to arrest petitioner, they

were entitled to open petitioner’s glove compartment

as a search incident to arrest to prevent him from

reaching for a weapon. New York vy. Belton, 453 U.S.

454 (1981). And upon discovery of the ammunition

clip, the agents were entitled to search the trunk and

seize the machine gun. United States v. Ross, 456

U.S. 798 (1982).

2. Even if the agents’ information did not estab-

lish probable cause to arrest petitioner, it gave them

reasonable suspicion to stop petitioner’s car for fur-

ther investigation. See, e.g., United States v. Sharpe,

470 U.S. 675, 682-688 (1985). Alternatively, the

agents were entitled, under the Fourth Amendment’s

standard of reasonableness, to stop petitioner to re-

quest his assistance in executing the search warrant.

See, e.g., id. at 682 (“‘we examine ‘whether the offi-

cer’s action was justified at its inception, and whether

it was reasonably related in scope to the circum-

stances which justified the interference in the first

place’ ’’).

Under either rationale, when petitioner—a person

who was known to have an affinity for firearms—

moved his arm suddenly upon hearing the agents’

command, the agents properly concluded that peti-

tioner was armed and dangerous. See, e.g., United

States v. Paulino, 850 F.2d 93, 97 (2d Cir. 1988),

cert. denied, 490 U.S. 1052 (1989); United States

v. Williams, 822 F.2d 1174, 1180 n.62 (D.C. Cir.

1987). To prevent petitioner from drawing a fire-

arm, the agents properly restrained petitioner and

opened the car’s glove box. Michigan v. Long, 463

U.S. 1032 (1983). And after the agents discovered

the ammunition clip, they had probable cause to

search the rest of petitioner’s car and to seize the

6

machine gun. See United States v. Ross, supra.

Thus, the government’s search of petitioner’s auto-

mobile was lawful under the Fourth Amendment, ir-

respective of whether this Court’s decision in Sum-

mers would have allowed the government to return

petitioner to his residence while the search was

conducted.

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 E. BooTH

Attorney

FEBRUARY 1992

vw U. S. GOVERNMENT PRINTING OFFICE; 1992 312324 45298