# Petition — Freire v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1984
- **Citation:** 465 U.S. 1023

## Text

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.

. Bt
. > ie
ied . oe

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0665%3A1. Public record. Not legal advice.