Reply Brief — United States v. Sharpe

Office - Suu: rt, US

FILED

IAN 11 1984

No. 83-529

ALEXANDER L. STEVAS,

CLERK

Iu the Supreme Court of the Hnited States

OcTOBER TERM, 1983

UNITED STATES OF AMERICA, PETITIONER

Vv.

WILLIAM HARRIS SHARPE AND DONALD DAvis SAVAGE

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

REPLY MEMORANDUM FOR THE UNITED STATES

Rex E. Lee

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

‘BEST AVAILABLE COPY

TABLE OF AUTHORITIES

Cases:

Adickes v. S.H. Kress & Co..,

398 U.S. 144

Florida v. Royer, No. 80-2146

(Mar. 23, 1983)

Jenkins v. Georgia, 418 U.S. 153

Raley v. Ohio, 360 U.S. 423

Terry v. Ohio, 392 U.S. |

United States v. Cortez, 449 U.S. 411

United States v. Davis, 646 F.2d 1298,

cert. denied, 454 U.S. 868

United States v. Lovasco, 431 U.S. 783

United States v. Mendenhail,

United States v. Place, No. 81-1617

(June 20, 1983)

United States v. Ross, 456 U.S. 798

United States v. Watson, 423 U.S. 411

Constitution:

U.S. Const. Amend. IV

Miscellaneous:

3 W. LaFave, Search and Seizure § 9.2

(1978)

Ju the Supreme Court of the Hnited States

OCTOBER TERM, 1983

No. 83-529

UNITED STATES OF AMERICA, PETITIONER

V.

WILLIAM HARRIS SHARPE AND DONALD Davis SAVAGE

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

REPLY MEMORANDUM FOR THE UNITED STATES

1. The court of appeals’ initial decision reversing

respondents’ convictions and suppressing the marijuana

seized from the pickup truck rested on two grounds, each

independently sufficient to support the judgment. The court

ruled (1) that the discovery of the marijuana was the fruit of

unlawful detentions of respondents, and (2) that the war-

rantless search of the marijuana bales was unlawful. There-

after, this Court granted certiorari, vacated the court of

appeals’ judgment, and remanded the case to that court for

further consideration in light of United States v. Ross, 456

U.S. 798 (1982). Respondents argue (Br. in Opp. 9-10) that,

because Ross is relevant only to the warrantless search

issue, the remand order must be read as an implicit affir-

mance of the court of appeals’ decision on the detention and

fruits issues. It therefore follows, according to respondents,

that our attempt to obtain review of those issues by way of

the present petition for certiorari is barred by the “law of the

(1)

2

case” doctrine. This argument is frivolous. If the Court had

indeed determined the merits of the present issues in

respondents’ favor, it would have been entirely pointless to

have granted the petition and remanded the case.

2. Respondents contend (Br. in Opp. 10) that the court of

appeals’ ruling on the detention issue turned not merely on

the duration of the detentions, but also on the fact that

respondents were not free to leave, a fact that, respondents

suggest, transformed their detentions into traditional arrests

requiring probable cause.

However, an investigative stop regulated by the Fourth

Amendment by definition involves the suspect’s involun-

tary detention by police. In Terry v. Ohio, 392 U.S. |

(1968), the Court recognized the principle that certain

police conduct may constitute a “seizure” under the Fourth

Amendment yet not require probable cause. The Court left

no doubt that such a “seizure” involves some restraint on

the freedom of the individual to walk away. /d. at 16. See

United States v. Place, No. 81-1617 (June 20, 1983), slip

op. 6. Indeed, as this Court has recently observed, when an

individual is free to leave an encounter with a police officer,

that encounter is not a “seizure” that implicates the protec-

tions of the Fourth Amendment at all. See Florida v.

Royer, No. 80-2146 (Mar. 23, 1983), slip op. 5-6 (plurality

opinion); id. at 3-4 (Brennan, J., concurring); id. at 2

(Blackmun, J., dissenting); id. at 5 n.3 (Rehnquist, J., dis-

senting); United States v. Mendenhall, 446 U.S. 544, 552-

555 (1980) (opinion of Stewart, J.).

'In his dissent on remand, Judge Russell drew precisely the opposite

conclusion, i.e., that the Court's remand made sense only if it implicitly

decided the detention issue in the government's favor (Pet. App. Sa-

13a). While we do not press such a contention here, it is certainly far

more logical than respondents’ argument.

3

Thus, contrary to respondents’ suggestion, the fact that

an individual’s freedom to leave during an investigative

detention of limited duration may be restrained in the same

manner as it would be if he were arrested does not imply

that the detention requires probable cause. As one leading

authority has stated:

The typical stopping for investigation cannot be viewed

as anything but a complete restriction on liberty of

movement for a time, and if investigation uncovers

added facts bringing about an arrest, the early stages of

the arrest will not involve any new restraint of signifi-

cance * * *. A stopping for investigation is not a lesser

intrusion, as compared to arrest, because the restric-

tion on movement is incomplete, but rather because it

is brief when compared with arrest, which (as empha-

sized in Terry) “is inevitably accompanied by future

interference with the individual's freedom of move-

ment, whether or not trial or conviction ultimately

follows.”

3 W. LaFave, Search and Seizure § 9.2, at 29-30 (1978).

In short, the fact that respondents’ detention was invol-

untary did not transform the stops into arrests. Further-

more, because involuntariness is inherent in the concept of a

forcible investigatory stop that is subject to the Fourth

Amendment, the detainee’s inability to leave cannot possi-

bly be a factor to be taken into account in determining

whether the detention amounted to an unlawful arrest.

Thus, the dispositive question here is not whether respond-

ents were free to leave (they clearly were not), but whether

their seizure was reasonable under the Fourth Amendment.

The court of appeals held that the seizure was unreasonable

solely by virtue of its duration, without regard to any of the

surrounding circumstances; the court chose to disregard

even the fact that the length of detention is primarily attrib-

utable to respondents’ own actions. It is our submission

4

that this was error because, as this Court’s Fourth Amend-

ment decisions confirm, the determination of the reason-

ableness of a particular law enforcement action requires a

consideration of all the relevant circumstances. See, e.g.,

United States v. Cortez, 449 U.S. 411, 417-418 (1981).

3. Respondents contend (Br. in Opp. 14) that the delay

between the initial stops and the formal arrests is attributa-

ble to the officers’ actions rather than to respondents’ own

evasive maneuvers when directed by Officer Thrasher to

pull over. As Judge Russell stated in dissent, however (Pet.

App. 3la), the “ploy by [respondent] Savage in the truck is

the basic cause of the delay complained of by [respondents];

there is no evidence of any unnecessary delay on the part of

the officers.” These maneuvers were, alone, responsible for

any time lapse resulting from Agent Cooke’s efforts to

conduct his investigation of both respondents at locations

half a mile apart. Thus, contrary to respondents’ conten-

tion, the length of the detention was not at all the result of

the officers’ actions. Instead, the officers’ actions, including

Agent Cooke’s attempts to contact Officer Thrasher by

radio and his awaiting the arrival of local police to maintain

the status quo at the site of the first stop, were directly

attributable to the fact that respondents were stopped at

separate locations. Although the majority below found that

the overall delay transformed the stops into unlawful

arrests, it never even suggested that these actions or any of

the other factors enumerated by respondents constituted

unreasonable conduct.”

?The other factors cited by respondents, Agent Cooke's 21 mile

surveillance of their vehicles before stopping them and the alleged

failure of the police to explain the reason for the stop, did not in any way

contribute to extending the detention of respondents. The lengthy

pre-stop surveillance served to assure a sufficient factual! predicate for

the stops; indeed, Agent Cooke made most of the observations that

formed the basis of his suspicion after he had followed respondents’

5

4. Respondents complain (Br. in Opp. 16) that the

government may not challenge Sharpe’s “standing” to sup-

press the marijuana discovered in the pickup truck because

it did not raise this “standing” argument in the lower courts.

Respondents fail to perceive, however, that this “standing”

argument is simply one element of our argument on the

fruits issue. The fruits issue itself is properly presented in the

petition because the court of appeals expressly addressed

and decided it in holding that the marijuana had to be

suppressed as a consequence of respondents’ assertedly

unlawful detentions (Pet. App. 21a-22a). Thus, this is not a

case in which the issue presented was “neither raised before

nor considered by the Court of Appeals * * *.” Adickes v.

S.H. Kress & Co., 398 U.S. 144, 147 n.2 (1970) (emphasis

added). Cf. Jenkins v. Georgia, 418 U.S. 153, 157 (1974);

Raley v. Ohio, 360 U.S. 423, 436 (1959). Moreover, the

“standing” element of our fruits argument is properly pre-

sented because the court of appeals did not specify whether

suppression of the marijuana as to Sharpe was based on the

assertedly unlawful detention of Sharpe or that of Savage;

the arguments in our petition on the fruits issue merely

canvass all of the possible bases for the court of appeals’

erroneous holding.

vehicles for some distance (1 Tr. 45-50, 85). There is, of course, no

constitutional right to be detained at the precise moment a legally

sufficient basis for detention is established. See, ¢.g., United States v.

Davis, 646 F.2d 1298, 1302 (8th Cir.), cert. denied, 454 U.S. 868 (1981);

see also United States v. Lovasco, 431 U.S. 783, 791 (1977); United

States v. Watson, 423 U.S. 411, 431 (1976) (Powell, J., concurriny).

Furthermore, while respondents were not expressly informed that they

had been stopped because they were suspected of transporting mari-

juana, this was the only logical implication of Officer Thrasher’s state-

ment to Savage that Agent Cooke, whom Thrasher identified asa DEA

agent, would be there shortly; of Agent Cooke's identification of him-

self to both respondents as a DEA agent; and of Cooke's statement to

Savage that he believed there was marijuana in the truck (I Tr. 54, 57,

105, 148-149).

6

For the foregoing reasons and those presented in our

petition, it is respectfully submitted that the petition for a

writ of certiorari should be granted.

Rex E. Lee

Solicitor General

JANUARY 1984