Petition — Freire v. United States

Ofics - Supreme Court, U.S,

82-276 FILED

NOV 28 1988

NO. ALEXANDER L. STEVASs

CLERK

in the

Supreme Court

of the

United States

RAUL FREIRE,

ANTONIO MARIA RUBIO,

JORGE MASTRAPA,

HECTOR GUILLERMO PUPO,

Petitioners,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT

PAUL MORRIS WILLIAM A. CLAY

2000 S. Dixie Hwy., Suite 212 1395 Coral Way

Miami, Florida 33133 Miami, Florida 33145

(305) 858-8820 (305) 856-1411

Counsel for Petitioners

QUESTIONS PRESENTED

WHETHER THE DECISION OF THE COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT CONFLICTS WITH STEA-

GALD y. UNITED STATES, 451 U.S. 204 (1981), UNITED

STATES v. RICHARDS, 646 F.2d 962 (Sth Cir. 1981), UNITED

STATES v. HICKS, 624 F.2d 32 (Sth Cir. 1981), BY ALLOWING

AN APPELLANT TO PREVAIL ON A FOURTH AMENDMENT

ISSUE RAISED ON APPEAL FOR THE FIRST TIME WHICH

WAS NOT FUNDAMENTAL ERROR.

(IN THECASE AT BAR, THE RESPONDENT APPEALED

AN ORDER OF SUPPRESSION GRANTED BECAUSE

THE RESPONDENT HAD FAILED TO MEET ITS

BURDEN OF PROVING THAT THECHALLENGED

WARRANTLESS SEARCH ANDSEIZURE WASJUSTIFIED

BY AN EXCEPTION TOTHE WARRANT REQUIREMENT.

FOR THE FIRST TIME ON APPEAL, THE RESPONDENT

ARGUED THAT THE WARRANTLESS SEARCH AND

SEIZURE WERE JUSTIFIED BY THE “AUTOMOBILE

EXCEPTION” TO THE WARRANT REQUIREMENT.)

WHETHER THE DECISION OF THE COURT OF APPEALS

ISIN CONFLICT WITH COOLIDGEv. NEW HAMPSHIRE,

403 U.S. 443 (1971).

WHETHER THE DECISION IN UNITED STATES v. ROSS

456 U.S. 798 (1982) IS RETROACTIVE.

TABLE OF CONTENTS AND AUTHORITIES

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TABLE OF AUTHORITIES

Coolidge v. New Hampshire

403 U.S. 443, 91 S.Ct. 2022,

20 L.Ed.2d 564 (1971)... cceessececcece

Jones v. United States,

362 U.S. 257. 80 S.Ct. 725,

4 L.Ed.2d 697 (1960) ........ceeceeeeens

Rakas v. Illinois,

439 U.S. 128, 99 S.Ct. 421,

$8 L.Ed.2d 387 (1978) ......cccccccccees

Steagald v. United States,

4S1 U.S. 204 (1981) ... .cccccccccccveese

United States v. Hicks,

624 F.2d 32 (Sth Cir. 1981) ..........4..

United States v. Ochs.,

595 F.2d 1247 (2d Cir.) cert. denied,

ee EE SIME. coo cacene cae

United States v. Richards,

646 F.2d 962 (Sth Cir.),

cert. denied, 454 U.S. 1097 (1981)........

United States v. Ross,

456 U.S. 798, 102 S.Ct. 2157,

72. L.Bb.24 S72 (19B2Z) . wc cccvccsccccccces

United States v. Salvucci,

GAB U.S. BB (IDBD) .... w ccccccccccccvcsece

“ee eee 7, 8

a nslen 7,8

JUDGMENT AND OPINION

OF THE COURT BELOW

On August |, 1983, the United States Court of Appeals for

the Eleventh Circuit filed an opinion reversing and remanding

the order of suppression entered by the federal district court.

(App. 1-16 ).On September 28, 1983, the Eleventh Circuit denied

the Petitioners’ Petition for Rehearing and Suggestion for Re-

hearing en banc. (App. |7-18).

JURISDICTION OF THIS COURT

This Petition is filed within sixty days of the Court of

Appeals’ denial of the Petitioners’ petition for rehearing on

September 28, 1983.

The jurisdiction of this Court is invoked pursuant to Title

28, U.S.C. § 12541) and Rules 17 through 23 of this Court's

rules.

CONSTITUTIONAL PROVISIONS INVOLVED

Fourth Amendment to the Constitution of the United

States.

STATEMENT OF THE CASE

During a routine cargo inspection at Miami International

Airport, customs inspectors discovered cocaine secreted in a

shipment of furniture. Customs and D.E.A. agents placed the

shipment under surveillance and followed a moving van which

picked it up. A car driven by Petitioner Rubio with Petitioner

Pupo as a passenger was observed near the warehouse area to

where the van proceeded.

Another van, driven by Petitioner Mastrapa with Petitioner

Freire as a passenger, arrived at the other end of the warehouse

shortly thereafter. The furniture was loaded into the second van.

which left with the car. As the van and car approached a

tollbooth onthe Fiorida Turnpike, the car sped alongside the

van, and the occupants conversed. Afte the agents suspected that

the vehicles were undertaking countersurveillance tactics, both

were stopped. The van was searched and the furniture with the

cocaine and a handgun were seized.

Meanwhile, other agents who had stopped the car noticed a

folded dollar bill at Pupo’s feet as he exited. Their suspicions

were aroused because the ground was wet from rain and the bill

was dry. The bill was seized and found to contain cocaine. The

agents searched the car for cocaine. A second bill with cocaine

was found inthe ashtray. The agents asked if there were weapons,

and Pupo responded in the negative. The agents opened the trunk

and seized to closed. unlocked briefcases, which were taken

unopened two DEA headquarters.

While being transported, Pupo told the agents that there

was a gun in his briefcase. The briefcases were opened at

headquarters and Pupo's briefcase contained a gun. a legal pad

with handwritten notations, and other documents. Freire’s

briefcase was found to contain Freire’s identification papers.

No drugs were found in either briefcase. “

The four Petitioners were indicted for importing cocaine,

conspiracy to import cocaine, conspiracy to possess cocaine with

intent io distribute, and use of a firgarm during the commission

of a felony. Pupo and Rubio were charged with the additional

offenses of possession of less than one gram of cocaine.

The Petitioners sought suppression of the fruits of the

warrantless seizures. The Respondent-government, at the

suppression hearing before the magistrate, and in its objections

to the magistrate’s recommendation of suppression of only the

evidence seized from the briefcases, did not seek to prove that the

automobile exception to the warrant requirement justified the

searches and seizures. Rather, the Respondent argued that:

Freire did not possess standing to challenge the search of his

briefcase which had been entrusted to Pupo; Pupo consented to

the search of his briefcase by indicating that it contained a

weapon; the searches and seizures of the briefcases were incident

to lawful arrests.

The magistrate and district judge rejected the Respondent's

arguments and suppression of the contents of the briefcases was

ordered. The Petitioners’ requests for suppression of all other

evidence were denied.

On appeal for the first time, the Respondent urged that the

automobile exception warranted reversal. The Petitioners

argued that the issue had been waived as never having been

presented or argued below before the magistrate or the district

judge. The Eleventh Circuit Court of Appeals reached the merits

of the new argument by the following reasoning:

rs

ae

Appellees correctly note that the automobile exception

was not an issue in this case until United States v. Ross, 456

U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), was

decided on June |, 1982, while this case was in the briefing

stage on appeal. We reach the application of Ross to this

case, despite the Government's failure to argue the

automobile exception below, because the factual record

necessary for resolution of the motion to suppress has been

developed fully, and because scarce judicial resources would

be wasted if we remanded the issue to the lower court for

decision. Thus, we now turn to the Supreme Court's

decision in Ross.

(App. 13 ).

The Eleventh Circuit went on to hold Ross retroactive, and

reversed on the basis of the automobile exception, not addressing

the Petitioners’ contention that there was no basis established by

the Respondent for the warrantless seizure of the personal

documents found in the briefcases which were incorrectly

suspected of containing cocaine.

REASONS FOR GRANTING THE WRIT

In Steagald v. United States, 451 U.S. 204 (1981), the

government, for the first time and in this Court, argued that the

petitioner lacked an expectation of privacy sufficient to prevail

on his fourth amendment claim. The majority opinion held that

the government lost its right to challenge standing by raising it at

such a late date. The government asserted that it was unable to

raise the issue in the lower courts because the lower courts had

acted before the decision had been rendered in United States v.

Salvucci, 448 U.S. 83 (1980). This Court rejected this argument as

de

We do not find this justification to be compelling. Under the

“automatic standing” rule of Jones v. United States, 362

U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), any person

charged with a possessory offense could challenge the

search in which the incriminating evidence was obtained.

Salvucci overruled Jones and instead limited such Fourth

Amendment claims to those persons who had a reasonable

expectation of privacy in the area or object of the search.

Although Sa/vucci thus altered Fourth Amendment

jurisprudence to some extent, the rationale of that decision

was in large part simply an extension of this Court’s earlier

reasoning in Rakas v. Illinois, 439 U.S. 128,99 S.Ct. 421, 58

L.Ed.2d 387 (1978).

Steagald, supra, 451 U.S. at 211 n.5, 101 S.Ct. at 1647.

In the case at bar, the Eleventh Circuit's excusal of the

failure of the Respondent to have argued the automobile

exception in the trial court is even less excusable. The issue of

standing waived by the government in Steagald is ordinarily

cognizable for the first time in the Court of Appeals.

(Accordingly, in the continuation of the footnote quoted above,

Steagald noted that the government did not even raise the

standing issue in the Court of Appeals.) But here, the issue of a

specific exception to the warrant requirement was not argued

below and was not cognizable for the first time on appeal.

Additionally, the Respondent cannot claim that the intervening

case of United States v. Ross, supra, prevented it from raising the

automobile exception below because, as the Respondent

successfully argued regarding retroactivity of Ross and as the

Eleventh Circuit agreed:

Appellees argue that Ross should not be applied

retroactively to the facts of this case because, in their

opinion, it represents a substantial break in fourth

amendment law. This argument is foreclosed by the

language of Ross itself:

Moreover, it is clear that no legitimate reliance interest

can be frustrated by our decision today. Of greatest

importance, we are convinced that the rule we apply in

this case is faithful to the interpretation of the Fourth

Amendment that the Court has followed with

substantial consistency throughout our history.

Ross, 456 U.S. at 824, 102 S.Ct. at 2172, 72 L.Ed.2d at 593.

(App.!5). Thus, as the Respondent argued and the Eleventh

Circuit concurred, Ross came as no surprise, and the Respondent

cannot be excused for its failure to have argued the automobile

exception to the magistrate and to the district judge, just as the

Respondent was not excused in Steaga/d from its failure to have

argued below the issue of standing.

United States v. Richards, 646 F.2d 962, 963 (Sth Cir.), cert.

denied, 454 U.S. 1097. 102 S.Ct. 669, 70 L.Ed.2d 638 (1981), and

United States v. Hicks, 624 F.2d 32, 34 (Sth Cir. 1981), are

similarly in conflict with the decision of the Eleventh Circuit,

thereby warranting certiorari review by this Court.

The new exception to preservation carved by the Eleventh

Circuit is without any cited supporting authority, and seemingly

would apply to every litigant where the factual record has been

“fully developed” and where “scarce judicial resources would be

wasted if we remanded” to the lower court. (App. !3). It is the

party who “sandbags” a trial court by raising an issue for the first

time on appeal, here the Respondent, who wastes scarce judicial

resources by not affording a fair opportunity to the lower court to

resolve an issue that might render unnecessary an appeal.

Further, allowing a party to raise an issue for the first time

encourages “sandbagging™ and the appellate litigation which

inevitably follows. The Eleventh Circuit presumably concluded

that remand (a waste of judicial resources) was the only

alternative to considering the automobile exception for the first

time on appeal. The Eleventh Circuit was mistaken. The correct

remedy is affirmance for two reasons: on the basis of waiver for

failure to have preserved the error, and to discourage litigants

from unfairly seeking reversal on issues not litigated or fairly

presented below.

This Court is urged to correct this dangerous precedent in

favor of the sound decisions cited for conflict.

This Court first recognized the plain view exception in

Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 20

L.Ed.2d 564 (1971). The Court stated that three conditions must

be satisfied before an item not specified in a warrant could be

seized under this exception. First, the searching agents must

lawfully be in a position to view the disputed evidence. Second,

the searching agents must inadvertently discover the disputed

evidence. Third, the incriminating nature of the disputed

evidence must be immediately apparent on its face.

In a search of documents incident to an arrest, the Second

Circuit wrote that “some perusal, generally fairly brief, was

necessary in order for police to perceive the relevance of the -

documents to the crime.” United States v. Ochs, 595 F.2d 1247,

1258 (2d Cir.), cert. denied, 444 U.S. 955, 100 S.Ct. 435, 62

L.Ed.2d 328 (1979).

In the case at bar, the government agents searched

briefcases for cocaine and a gun. The gun was found, but there

was no cocaine. Instead, the agents seized personal documents

never shown by the Respondent to have any “immediately

apparent” connection to the crimes being investigated.

Assuming, arguendo, that the search and seizure of the

briefcases can be justified pursuant to a valid exception to the

warrant requirement, the panel decision is in conflict with

Coolidge and Ochs because there was no showing that the

documents were incriminating. The burden, of course, was upon

the government to prove that the warrantless seizure was valid,

and the only apparent exception which might arguably apply is

the plain view exception. The Eleventh Circuit failed to hold the

Respondent to the prerequisites of Coolidge and Ochs, and

should therefore be reviewed.

Ill.

The Eleventh Circuit held retroactive this Court's decision

in United States v. Ross, supra. This significant constitutional

determination should be left to this Court for the guidance of the

judiciary throughout the nation.

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CONCLUSION

The Petitioners, Raul Freire, Antonio Maria Rubio, Jorge

Mastrapa, and Hector Guillermo Pupo, request that certiorari be

granted and the order of suppression of the trial court be

approved.

Respectfully submitted,

PAUL MORRIS, ESQ.

2000 S. Dixie Hwy., Suite 212

Miami, Florida 33133

(305) 858-8820

and

WILLIAM A. CLAY, ESQ.

1395 Coral Way

Miami, Florida 33145

(305) 856-1411

Counsel for Raul Freire,

Antonio Maria Rubio,

Jorge Mastrapa, and

Hector Guillermo Pupo

Appendix

UNITED STATES of America,

Plaintiff-Appellant,

v.

Raul FREIRE, Antonio Maria Rubio,

Jorge Mastrapa, and Hector Guillermo

Pupo, Defendants-Appellees.

No. 82-5314.

United States Court of Appeals,

Eleventh Circuit.

Aug. |, 1983

Appeal from the United States District Court for the

Southern District of Florida.

Before KRAVITCH and JOHNSON, Circuit Judges, and

LYNNE’, District Judge.

KRAVITCH, Circuit Judge:

This case presents the question whether the recent Supreme

Court holding in United States v. Ross, 456 U.S. 798, 102 S.Ct.

2157, 72 L.Ed.2d 572 (1982), applies retroactively. We determine

that it does. Hence we reverse the district court’s order

suppressing the evidence seized from appellees’ briefcases and

remand the case for trial.

App. |

While performing a routine cargo inspection at Miami

International Airport on December 15, 1981, customs inspectors

discovered approximately four kilograms of cocaine secreted ina

shipment of furniture from Santa Cruz, Bolivia. Customs

officials and Drug Enforcement Administration (DEA) agents

placed the furniture under continuous surveillance. They

observed a moving van pick up the furniture and proceed to a

warehouse, and a blue Mercedes, driven by defendant Rubio

with defendant Pupo as a passenger, scouting the adjacent area.

Pupo appeared to be talking into a mobile telephone.

Shortly thereafter, another van, driven by defendant

Mastrapa with defendant Freire as a passenger, arrived at the

opposite end of the warehouse. Agents watched as the furniture

was unloaded from the first van, carried through the warehouse,

and loaded into the second van. The Mercedes and the second

van then left the warehouse, and the agents followed.

As the two vehicles under surveillance appraoched a toll

booth on the Florida Turnpike, the Mercedes sped alongside the

van, and the occupants engaged in conversation. After it became

apparent to the agents that the vehicles were undertaking

countersurveillance tactics, both were stopped.

A search of the van revealed the furniture containing the

cocaine and a Browning .380mm semi-automatic handgun that

was found in the glove compartment. Mastrapa and Freire were

arrested and taken into custody.

App. 2

Meanwhile, other agents had stopped the Mercedes. As

defendant Pupo exited the passenger’s side, the agents noticed a

folded, dry dollar bill at Pupo’s feet. This aroused their suspicion

because it had been raining, and the ground was wet. The folded

dollar bill contained cocaine. Presented with this contraband, the

agents searched the passenger compartment of the car for other

drugs. A second folded bill containing cocaine was found in the

ashtray. The defendants were asked if they had any weapons, and

Pupo responded they did not. The agents then opened and

searched the trunk of the car where they found two closed, but

unlocked briefcases. '

These were not opened at the scene of the arrest, but were

taken to DEA headquarters. While being driven to the Miami

DEA District Office, Pupo recanted his earlier statement that he

had no weapons, and told the agents there was a gun in his

briefcase. Upon opening the two attaches at DEA headquarters,

the agents discovered that Pupo’s briefcase contained a handgun,

a legal pad with handwritten notations, and other documents.

The other briefcase, which belonged to Freire, contained

Freire’s identification papers.

'. At the hearing on defendants’ motion to suppress, the magistrate found

that the briefcases were in the passenger compartment of the car, but the

district court rejected that finding. and determined that they were found in

the trunk. Our resolution of this case renders it unneccesary to determine

the location of the briefcases, but we will adhere to the district judge's

findings that the agents seized them from the trunk.

App. 3

The four appellees were indicted for intentionally importing

cocaine, in violation of 21 U.S.C. §§ 952(a), 960({a)(1), and 18

U.S.C. § 2, conspiracy to import cocaine, in violation of 21

U.S.C. § 963, conspiracy to possess cocaine with the intent to

distribute, in violation of 21 U.S.C. § 846, possession with intent

to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. §

2, and use of a firearm during the commission of a felony, in

violation of 18 U.S.C. §§ 924(c)(1) and (2). Additionally, Pupo

and Rubio werc ndicted for possession of less than one gram of

cocaine, in violation of 21 U.S.C. § 844(a) and 18 U.S.C. § 2.

The defendants filed a joint motion to suppress the evidence

garnered through the warrantless searches of the van, the

Mercedes, and the two briefcases. The magistrate recommended

that most of the evidence be admitted, but that the evidence

seized from the briefcases be suppressed.

Both parties sought review of the recommendation, and the

district court, relying on the testimony presented during the

suppression hearing, adopted the magistrate’s oral

recommendations. Pursuant to 18 U.S.C. § 3731, the

Government appeals that decisions.

Before addressing the retroactivity of Ross, we first must

resolve whether Freire’s fourth amendment rights were

implicated by the search of the briefcase.

App. 4

Freire was a passenger in the van, and consequently, had

neither actual nor constructive possession of his briefcase at the

time it was seized. He did not testify at the suppression hearing,

but Pupo, the passenger in the Mercedes, testified that on the

morning of their arrest, Freire had given him his briefcase for

safekeeping during the day. Although no specific instructions

were given, Pupo stated that he was expected to respect Freire’s

privacy. The Government did not seriously dispute that Freire

was the owner of the briefcase. Based upon Pupo’s testimony,

the magistrate found that Freire’s fourth amendment interests

were implicated. The district judge, upon a review of the record,

agreed.

[1] A criminal defendant's right to challenge a search

and/or seizure as being violative of the fourth amendment ? is

premised upon the existence of a legitimate expectation of

privacy in the invaded place. Rakas v. Illinois, 439 U.S. 128, 142-

43, 99 S.Ct. 421, 430, 58 L.Ed.2d 387, 400-02 (1978). The burden

of persuasion on this issue is placed squarely on the movant. /d.

at 130 n. 1, 99 S.Ct. at 424 n. 1, 58 L.Ed.2d at 393 n. 1; United

States v. Torres, 703 F.2d 1267, 1271 (11th Cir. 1983).

2. The fourth amendment to the Constitution of the United States

provides:

The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures,

shall not be violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation, and particularly

describing the place to the searched, and the persons or things to be

seized.

U.S. Const. amend. IV.

App. 5

The Government argues that Freire failed to shoulder his

burden: he did not testify; no evidence was presented regarding

his intent to exercise control over the briefcase; Pupo was given

no instructions concerning Freire’s privacy; and the briefcase was

out of Freire’s possession and control for over eight hours. The

magistrate and district judge were unimpressed by these

arguments, and so are we.

[2] A briefcase is often the repository for more than

business documents. Rather, it is the extension of one’s own

clothing because it serves as a larger “pocket” in which such items

as wallets and credit cards, address brooks, personal

calendar/ diaries, correspondence, and reading glasses often are

carried. Few places outside one’s home justify a greater

expectation of privacy than does the briefcase. See generally

United States v. Chadwick, 433 U.S. 1, 13,97S.Ct. 2476, 2484, 53

L.Ed.2d 538 (1977).

The Government does not contend on appeal that this is not

so. Instead, it focuses on Freire’s alleged failure to demonstrate

his expectation of privacy in the briefcase.

[3,4] Mere ownership is not the talisman for fourth amend-

ment jurisprudence. So teaches Rakas. It is, nevertheless, a bright

star by which courts are guided when the place invaded enjoys

universal acceptance as a haven of privacy, such as one’s home.

That Freire did not take the stand himself is not fatal to his

privacy claim. Pupo’s testimony that the briefcase was Freire’s

and that Freire had entrusted it to Pupo for safekeeping was

uncontroverted. Thus, Freire shouldered his burden of

establishing his continuing privacy interest in the briefcase.

Moreover, the Government did not show that Freire had

abandoned it either purposely or through neglect or had

otherwise abrogated his expectation of privacy. Hence, Freire’s

privacy interest remained intact. The district court correctly

determined that Freire could challenge the search and seizure of

his briefcase.

App. 6

The Government contends that Pupo’s voluntary statement

that his briefcase contained a small handgun vitiated his

legitimate expectation privacy in either one of two ways: first, the

statement constituted consent to search; alternatively, Pupo’s

admission brought the gun into plain view. Because we conclude

that the Supreme Court's decision in Ross controls the outcome

of this case, we need not address these contentions. Having

determined that appellees’ legitimate expectations of privacy

were implicated, we now consider the applicability of Ross tothe

search of the briefcase.

[5] Upon a motion to suppress evidence garnered through

a warrantless search and seizure, the burden of proof as to the

reasonableness of the search rests with the prosecution. See, e.g.,

United States v. Impson, 482 F.2d 197 (Sth Cir. 1973). The

Government must demonstrate that the challenged action falls

within one of the recognized exceptions to the warrant

requirements, thereby rendering it reasonable within the

meaning of the fourth amendment.

[6] Upon appeal the Government urges that the

automobile exception to the fourth amendment warrant

requirement is applicable to this case because of the intervening

decision in Ross. First considered in Carroll v. United States, 267

U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), the automobile

exception allows officers to search vehicles in certain instances

even if a search warrant has not been obtained beforehand. In

cases following Carroll the Court has proffered two

rationalizations for the exception: (1) the exigency of the vehicle’s

mobility, see e.g., Chambers v. Maroney, 399 U.S. 42, 90 S.Ct.

1975, 26 L.Ed.2d 419 (1970); and (2) the diminished expectation

of privacy in the automobile, see, e.g., United States v.

Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977);

Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325

(1974). See generally 2 W. LeFave, Search and Seizure §7.2

(1978).

App. 7

The Court’s latest decision affecting the automobile

exception, Ross, supra, was decided after the search of appellees’

briefcases. At that time, the two controlling Supreme Court

decisions were Robbins v. California, 453 U.S. 420, 101 S.Ct.

2841, 69 L.Ed.2d 744 (1981), and New York v. Belton, 453 U.S.

454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981).

In Robbins, the Court addressed the constitutionality of a

warrantless search and seizure of two packages found in the

recessed luggage compartment of Robbin’s station wagon.

California Highway Patrol officers had stopped Robbins for

erratic driving. When Robbins opened his door to retrieve the

car’s registration, the officers smelled marijuana. A search of the

passenger compartment revealed marijuana and _ related

paraphernalia. Robbins was arrested and placed in the back seat

of the patrol car. The officers then raised the tailgate of Robbins’s

station wagon, found the recessed handle of the cover over the

tire well and luggage compartment, and opened the

compartment. Inside were two packages wrapped in green

opaque plastic. The officers unwrapped the packages; each one

contained marijuana. ;

After Robbins’s case was remanded in light of Arkansas v.

Sanders, 422 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), the

Court granted certiorari a second time because of the “continuing

uncertainty as to whether closed containers found during a lawful

warrantless search of an automobile may themselves be searched

without a warrant.” Robbins, 453 U.S. at 423, 101 S.Ct. at 2844.

Six Justices voted to invalidate the warrantless search of the

packages, but only four — Justices Stewart, Brennan, White, and

Marshall — concurred in the opinion of the Court.

App. &

Justice Stewart's plurality opinion traced the history and

logic underlying the Court's container decisions in United States

v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977),

and Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d

235 (1979). In both cases the Court refused to extend the

automubile exception to closed items of luggage. The automobile

exception is justified by both the inherent mobility of and

diminished expectation of privacy in automobiles, see, e.g.,

Chadwick, supra, Cady v. Dombrowski, 431 U.S. 433, 441-42, 93

S.Ct. 2523, 2528, 37 L.Ed.2d 706 (1973), but neither justification,

according to the Robbins plurality, applies to closed containers

found in a lawfully stopped automobile: “No such diminished

expectation of privacy characterizes luggage; on the contrary,

luggage typically is a repository of personal effects, the contents

of closed pieces of luggage are hidden from view, and luggage is

not generally subject to state regulation.” Robbins, 453 U.S. at

424-25, 101 S.Ct. at 2844-45. Thus, the Court held that a closed

Opaque container may not be opened without a warrant, even if

the container is discovered in the course of a lawful search of an

automobile. /d. at 428-29, 101 S.Ct. at 2846-47.

Justice Powell, concurring in the Court’s judgment, voiced

his frustration with the case’s posture. He noted the dissent’s

characterization of the issue as the scope of the automobile

exception , but stated that the parties in Robbins had not argued

the automobile exception, and that “it is late in the Term for us to

undertake sua sponte reconsideration of basic doctrines.”

Robbins, 453 U.S. at 435, 101 S.Ct. at 2850 (Powell, J.,

concurring in judgment). Justice Powell did, however, attack the

plurality on the merits:

The plurality’s approach strains the rationales of our prior

cases and imposes substantial burdens on law enforcement

without vindicating any significant values of privacy. I

nevertheless concur in the judgment because the manner in

which the package at issue was carefully wrapped and sealed

evidenced petitioner’s expectation of privacy in its contents.

App. 9

s

Id. at 429, 101 S.Ct. at 2847. Perhaps more than that of any other

Justice in Robbins, the opinion of Justice Powell anticipated

United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.?d

572 (1982).

In three sa dissents, Justices Blackmun, Rehnquist,

and Stevens argued that the Court should have addressed the

permissible scope of the automobile exception. Justice Stevens

criticized the decisions in Chadwick and Sanders, reasoning that

neither decision precluded the Court from applying the

automobile exception to searches of containers found in vehicles

that the police have probable cause to search. “{A] proper

application of the automobile exception,” according to Justice

Stevens, “will uphold a search of a container located ina car only

if the police have probable cause to search the entire car.”

Robbins, 453 U.S. at 449 n. 9, 101 S.Ct. at 2857 n. 9 (Stevens, J.,

dissenting).

The companion case to Robbins, New York v. Belton, 453

U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), considered the

following question: “When the occupant of an automobile is

subjected to a lawful custodial arrest, does the constitutionally

permissible scope of a search incident to his arrest include the

passenger compartment of the automobile in which he was

riding?” /d. at 455, 101 S.Ct. at 2861. The Supreme Court held

that it does include a search of the passenger compartment, but

not the trunk. See id. 453 U.S. at 460 & n. 4, 101 S.Ct. at 2864 & n.

4, L.Ed.2d at 775 & n. 4.

The Court reasoned that its prior cases suggested the

generalization that the entire passenger compartment of an

automobile was within the reach of an arrestee, thus rendering a

search of that area reasonable under Chimel v. California, 395

U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

App. 10

Accordingly, we hold that when a policeman has made a

lawful custodial arrest of the occupant of an automobile, he

may, as a contemporaneous incident of that arrest, search

the passenger compartment of that automobile.

It follows from this conclusion that the police may also

examine the contents of any containers found within the

passenger compartment, for if the passenger compartment

is within reach of the arrestee, so also will containers in it be

within his reach.

Belton, 453 U.S. at 460, 101 S.Ct. at 2864 (footnotes omitted). In

the context of a search incident to a lawful arrest, the lawful

custodial arrest justifies the invasion of the arrestee’s privacy

interests.

Justices Brennan and Marshall dissented, arguing that the

Court had abandoned the underpinnings of Chimel. Justice

White dissented separately to voice his belief that the Belton

majority had worked too extreme an extension of Chimel.

This, then, was the status of search and seizure law in

December 1981 when appellees were arrested and their briefcases

searched. Although Ross would not be decided for another six

months, the Supreme Court granted the writ of certiorari on

October 13, 1981, and directed the parties to address the question

whether the Court should reconsider Robbins. United States v.

Ross, 454 U.S. 891, 102 S.Ct. 386, 70 L.Ed.2d 205 (1981).

In the case now before us, both the magistrate and the trial

judge analyzed the warrantless search of the briefcases under the

principles guiding searches incident to a valid arrest. In his oral

recommendation the magistrate stated:

App. |!

This Court is going to recommend that the search of the

briefcases be suppressed because this Court is of the opinion

that the briefcases were in the possession of the DEA.

It was after the arrest. They had not been searched

before the arrest or during the arrest. It was searched after

the arrest and there should have been a search warrant for

those two briefcases.

Transcript of Suppression Hearing at 200.

Before the lower court, the Government argued that Belton

clearly controlled. Had the district court agreed with the

magistrate’s finding that the briefcases were in the passenger

compartment, Be/ton would have governed the disposition of the

case. The district court, however, determined that the briefcases

were found not in the passenger compartment, but rather in the

trunk. This distinguished appellees’ situation from that in Belton.

Accordingly, the district judge held that Be/ton was inapplicable,

and that the magistrate was correct in suppressing the briefcase

evidence.

On appeal, appellees contend that because the Government

failed to argue the automobile exception to the warrant

requirement it is estopped from asserting it now. As we noted

above, the burden of excusing the failure to get a warrant falls

upon the Government, which must point to the specific

exception(s) under which it proceeded. In this case, the

Government argued two exceptions: inventory searches and

searches incident to a valid arrest.

App. |2

[7] Appellees correctly note that the automobile exception

was not an issue in this case until United States v. Ross, 456U.S.

798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), was decided on June

1, 1982, while this case was in the briefing stage on appeal. We

reach the application of Ross to this case, despite the

Government's failure to argue the automobile exception below,

because the factual record necessary for resolution of the motion

to suppress has been developed fully, and because scarce judicial

resources would be wasted if we remanded the issue to the lower

court for decision. Thus, we now turn to the Supreme Court's

decision in Ross.

The Court's statement of the issue to be decided and its

resolution of that question are set forth in the introductory

paragraph of Justice Stevens's opinion for the majority:

In this case, we consider the extent to which police officers

— who have legitimately stopped an automobile and who

have probable cause to believe that contraband is concealed

somewhere within it — may conduct a probing search of

compartments and containers within the vehicle whose

contents are not in plain view. We hold that they may

conduct a search of the vehicle that is as thorough as a

magistrate could authorize in a warrant “particularly

describing the place to be searched.”

Ross, 456 U.S. at 800, 102 S.Ct. at 2160, 72 L.Ed.2d at 578

(quoting U.S. Const. amend. IV).

App. 13

In Ross, a confidential informant notified the District of

Columbia Police that a person known as “Bandit” was dealing in

narcotics from the trunk of his car, a maroon Chevrolet Malibu.

After conducting surveillance of the area and determining that

Ross was the owner of the car, the detectives stopped Ross as he

was driving the vehicle. A pistol was found in the glove

compartment, and Ross was arrested and handcuffed. Using keys

appropriated from Ross, the detectives opened the trunk and

discovered in a paper lunch bag glassine envelopes containing a

white powder later determined to be heroin. A red zippered

pouch also was seized. When it was opened later at the police

station, officers discovered $3,200 in cash. The district court

denied Ross’s motion to suppress the evidence seized from the car

trunk, and Ross was convicted of possession of heroin with intent

to distribute, in violation of 21 U.S.C. § 841(a). The Supreme

Court granted certiorari to reconsider its decision in Robbins.

The Court distinguished Chadwick and Sanders by noting

that in neither of those cases did the law enforcement officials

have probable cause to search the entire vehicle. In Chadwick,

suspicion was focused only on the padlocked footlocker that was

leaking talcum powder. In Sanders, the green suitcase was the

object of the agent’s interest. In Ross, however, probable cause to

search the entire vehicle was present. Thus, Justice Stevens

reasoned, the factual situation cf Ross was analogous to that

presented in the Court's first case involving the automobile

exception, Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69

L.Ed. 543 (1925).

The Court overruled Robbins because the Robbins plurality

relied on Chadwick and Sanders, which were distinguishable. That

portion of Sanders upon which Robbins was premised was also

discarded by the Court.

App. 14

Ross represents the Court's attempt to establish clear and ascer-

tainable guidelines by which law enforcement officials may be gov-

erened. In delineating these guidelines, the Court ruled:

The scope of a warrantless search of an automobile thus

is not defined by the nature of the container in which the con-

traband is secreted. Rather, it is defined by the object of the

search and the places in which there is probable cause to believe

that it may be found.

Ross, 456 U.S. at 824, 102 S. Ct. at 2172, 72 L.Ed.2d at 593.

[8] The agents in the instant case clearly had probable cause

to believe that cocaine was secreted in the automobile because of

the folded dollar bill discovered as Pupo exited the car. A substantial

amount of cocaine can be carried in a normal size briefcase, and the

totality of the surrounding circumstance afforded the agents ample

reason to suspect that additional contraband could be found in the

briefcase.

[9] Appellees argue that Ross should not be applied retro-

actively to the facts of this case because, in their opinion, it repre-

sents a substantial break in fourth amendment law. This argument

is foreclosed by the language of Ross itself:

Moreover, it is clear that no legitimate reliance interest can be

frustrated by our decision today.’ Of greatest importance, we

are convinced that the rule we apply in this case is faithful to

the interpretation of the Fourth Amendment that the Court has

followed with substantial consistency throughout our histroy.

Ross, 456 U.S. at 824, 102 S.Ct. at 2172, 72 L.Ed.2d at 593.

Footnote 33 reads:

Any interest in maintaining the status quo that might be

asserted by persons who may have structured their business of

distributing narcotics or other illicit substances on the basis of

judicial precedents clearly would not be legitimate.

App. |I5

Id. n. 33. Thus, the majority discerned no retroactivity problems

with its decision. See also United States v. Johnson, —U.S.—, 102

S.Ct. 2579, 73 L.Ed.2d 202 (1982); Illinois v. Gates, —U.S.—

—, 103 S.Ct. 2317, 2361, 76 L.Ed.2d—(1983) (Stevens, j., dis-

senting); United States v. Rollins, 699 F.2d 530, 534 (1 1th Cir. 1983).

The Supreme Court’s decision in Ross that, ‘‘[iJf probable

cause justifies the search of a lawfully stopped vehicle, it justifies

the search of every part of the vehicle and its contents that may

conceal the object of the search,’’ Ross, 456 U.S. at 825, 102 S.Ct.

at 2173, 72 L.Ed.2d at 594, governs this case. Accordingly, we

“conclude that the district court erred in suppressing the evidence

discovered in the briefcases. We REVERSE the district court’s order

and REMAND this case for trial upon the merits.

App. 16

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 82-5314

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

RAUL FREIRE, Et. AL.,

Defendants- Appellees.

Appeal from the United States District Court

for the

Southern District of Florida

App. 17

ON PETITION FOR REHEARING

AND SUGGESTION FOR REHEARING EN BANC

(Opinion August 1, 11 Cir., 1983, ney

(SEPTEMBER 28, 1983)

Before KRAVITCH and JOHNSON, Circuit Judges, and

LYNNE*, District Judge

PER CURIAM:

( v ) The Petition for Rehearing is DENIED and no member

of this panel nor Judge in regular active service on the Court

having requested that the Court be polled on rehearing en banc

(Rule 35, Federal Rules of Appellate Procedure; Eleventh Circuit

Rule 26), the Suggestion for Rehearing En Banc is DENIED.

( ) The Petition for Rehearing is DENIED and the Court

having been polled at the request of one of the members of the

Court and a majority of the Circuit Judges who are in regular

active service not having voted in favor of it (Rule 35, Federal

Rules of Appellate Procedure; Eleventh Circuit Rule 26), the

Suggestion for Rehearing En Banc is also DENIED.

( ) A member of the Court in active service having

requesied a poll on the reconsideration of this cause en banc, and

a majority of the judges in active service not having voted in favor

of it, rehearing en banc is DENIED.

ENTERED FOR THE COURT:

United States Circuit Judge REHG-6

App. 18