Petition for Writ of Certiorari — United States v. Padilla

——- ——_

OFFICE OF THE CLERK

In the Supreme Court of the United States

OCTOBER TERM, 1992

UNITED STATES OF AMERICA, PETITIONER

v.

XAVIER V. PADILLA, ET AL.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTIL CIRCUIT

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, IT]

Assistant Attorney General

WILLIAM C. BRYSON

Deputy Solicitor General

WILLIAM K. KELLEY

Assistant to the Solicitor General

PATTY MERKAMP STEMLER

Attorney

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTION PRESENTED

Whether membership in a joint venture to trans-

port drugs gives co-conspirators a legitimate expecta-

tion of privacy entitling them to challenge the investi-

gatory stop of one of the members of the conspiracy,

and the subsequent search of the vehicle he was

driving.

(1)

Il

PARTIES TO THE PROCEEDING

In addition to the named parties, Maria Jesus

Padilla, Jorge Padilla, Donald Lake Simpson, Maria

Sylvia Simpson, and Warren Strubbe are respondents. *

* With respect to respondent Warren Strubbe, the court of

appeals held that he lacks a Fourth Amendment interest

entitling him to challenge the legality of the government ac-

tions at issue. Although the government prevailed against

respondent Strubbe in the court of appeals, he is nonetheless

a respondent in this Court. See Sup. Ct. R. 12.4.

TABLE OF CONTENTS

Page

a senesineasonsessnasences 1

erst 1

Statement . ola Fe 2

Reasons for gnenting the petition c= ER vt RE eon 6

a TS Ee * 17

I vee la

ESE EE

Appendix C ie 1 ; _ 24a

SE lie 25a

Appendix E a 30a

ELE Se |

EE -~ ... 88a

TABLE OF AUTHORITIES

Cases:

Alderman V. United States, 394 U.S. 165 (1969) 7,9

Brown V. United States, 411 U.S. 223 (1973) x

Horton Vv. California, 496 U.S. 128 (1990) 12

Illinois Vv. Andreas, 463 U.S. 765 (1983) 12

Rakas Vv. Illinois, 439 U.S. 128 (1978). 7,13

Rawlings Vv. Kentucky, 448 U.S. 98 (1980). 9,12

Simmons Vv. United States, 390 U.S. 377 (1968). 7

Standefer Vv. United States, 447 U.S. 10 (1980) x

United States Vv. Broadhurst, 805 F.2d 849 (9th

a etenccscnsnce x

United States v. Brown, 743 F.2d 1505 (11th Cir.

1984) . ese 15

United States V. DeLeon, 641 F.2d 330 (5th Cir.

tetris 15

United States v. Galante, 547 F.2d 733 (24 Cir.

1976), cert. denied, 431 U.S. 969 (1977) 15

United States v. Gerena, 662 F. comes 1218 (D.

Conn. 1987) . ee Se 16

United States V. Johns:

707 F.2d 1093 (9th Cir. 1983), rev'd, 469 U.S.

478 (1985) . ee 8

851 F.2d 1131 (9th Cir. 1988) . a x

(mI)

IV

Cases—Continued:

United States v. Kiser, 948 F.2d 418 (8th Cir.

1991), cert. denied, 142 S. Ct. 1666 (1992)...

United States v. Kovac, 795 F.2d 1509 (9th Cir.

1986), cert. denied, 479 U.S. 1065 (1987)...

United States v. Lisk, 522 F.2d 228 (7th Cir.

1975), cert. denied, 423 U.S. 1078 (1976) |

United States v. Manbeck, 744 F.2d 360 (4th Cir.

1984), cert. denied, 469 U.S. 1217 (1985)

United States v. Payner, 447 U.S. 727 (1980).

United States v. Perez, 689 F.2d 1336 (9th Cir.

1982 Se Uae Say NE EE NT Fe eS DK os POE

SS sseaseaniasinictadonestihiinaciatiicmeita otis ARE aaa

United States v. Quinn, 751 F.2d 980 (9th Cir.

1984), cert. granted, 474 U.S. 900 (1985), cert.

dismissed, 475 U.S. 791 (1986)... i

United States v. Salvucci, 448 U.S. 83 (1980).

United States v. Schuster, 775 F. Supp. 297 (W.D.

a

United States Vv. Soule, 908 F.2d 1032 (1st Cir.

ITTY science ee cial eee Ta ae ect :

United States v. Taketa, 923 F.2d 665 (9th Cir.

— viii nach tale iene

Wong Sun Vv. United States, 371 U.S. 471 (1968) .

Constitution and statutes:

U.S. Const. Amend. IV.

21 U.S.C. 841(a) (1)

Be IE citiceisieeiectinacencidebet

21 U.S.C. 848 _.....

Page

14, 16

ho to bo

Iu the Suprenw Court of the Tnited States

OCTOBER TERM, 1992

No.

UNITED STATES OF AMERICA, PETITIONER

v.

XAVIER V. PADILLA, ET AL.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

The Solicitor General, on behalf of the United

States, petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals

for the Ninth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra,

la-2la) is reported at 960 F.2d 854. The oral rulings

and minute orders of the district court (App., infra,

22a-34a) are unreported.

JURISDICTION

The judgment of the court of appeals was entered

on April 1, 1992. On June 23, 1992, Justice O’Con-

nor entered an order extending the time for filing a

petition for a writ of certiorari to and including

July 30, 1992. The jurisdiction of this Court is in-

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

(1)

9

-

STATEMENT

An indictment returned in the United States Dis-

trict Court for the District of Arizona charged re-

spondents with conspiracy to distribute and possess

with intent to distribute cocaine, in violation of 21

U.S.C. 846, and possession of cocaine with intent to

distribute it, in violation of 21 U.S.C. 841(a)(1). In

addition, respondent Xavier Padilla was charged with

engaging in a continuing criminal enterprise, in vio-

lation of 21 U.S.C. 848. The district court granted

motions to suppress most of the evidence in the case.

The court of appeals affirmed in part, vacated in part,

and remanded. App., infra, la-21a.

1. On September 26, 1989, Officer Russel! Fifer

of the Arizona Department of Public Safety was

patrolling on Interstate Highway 10 near Casa

Grande, Arizona, when a Cadillac passed him. Al-

though the Cadillac was initially traveling 65 to 70

miles per hour, it slowed to 50 miles per hour. The

driver appeared to be acting suspiciously, so the offi-

cer followed the car for several miles. Due to a mis-

communication, the police radio dispatcher informed

Fifer that the license plates on the Cadillac were

registered to a Pontiac. Officer Fifer signaled the

driver of the Cadillac to stop, and the car pulled over.

App., infra, 2a-3a; 5 8 90 Tr. 132-139, 143-145.

Luis Arciniega was the driver and sole occupant

of the Cadillac. He gave Officer Fifer a driver's

license in his own name and an insurance card in

the name of respondent Donald Simpson. Another

officer, who was assisting Fifer, asked Arciniega for

permission to search the car for weapons or contra-

band, and Arciniega consented. The officer opened the

trunk and immediately discovered 560 pounds of

cocaine. Officer Fifer then arrested Arciniega. Dur-

ing the course of the stop, Officer Fifer learned from

3

the radio dispatcher that the initial license plate in-

formation was incorrect and that the plates were in

fact registered to a Cadillac owned by respondent

Donald Simpson. App., infra, 3a-da; 5 15 90 Tr.

91-96.

Arciniega then agreed to make a controlled deliv-

ery of the cocaine. He made a telephone call from

a motel in Tempe, Arizona, and shortly thereafter,

respondents Jorge and Maria Padilla arrived at the

motel. The Padillas were arrested when they tried

to drive off in the Cadillac. Maria Padilla then led

the officers to a house in which respondent Xavier

Padilla was staying. App., infra, da-5a.

Law enforcement authorities learned that the

cocaine-laden Cadillac belonged to a Customs agent,

Donald Simpson. The investigation linked Simpson

and his wife, respondent Maria Sylvia Simpson, to

Xavier Padilla. The authorities ultimately concluded

that the Simpsons and Xavier Padilla were the prin-

cipals in a drug smuggling operation that transported

drugs from Mexico on behalf of distributors who

owned the drugs. DEA agents conducting a related

investigation were able to link Warren Strubbe to

the conspiracy, and they discovered another 44°

pounds of cocaine, which had been unloaded from the

Simpsons’ Cadillac shortly before Arciniega’s arrest.

App., infra, 5a-7a; Excerpt of Record Doc. 259,

at 4-8.

2. Prior to trial, respondents moved to suppress

all the evidence discovered in the course of the in-

vestigation, claiming that the evidence was the fruit

of the stop of Arciniega, which they argued was un-

lawful. Midway through the suppression hearing,

the district court ruled that respondents had stand-

ing to challenge the stop of Arciniega. The court

found that respondents hed standing because they

were involved in “a joint venture for transportation”

4

of the contraband, and that the joint venturers “had

control of the contraband” at the time of the stop.

App., infra, 22a.

At the conclusion of the evidentiary hearing, the

district court ruled that Officer Fifer lacked reason-

able suspicion to stop Arciniega.' App., infra, 25a.

The court therefore “suppress[ed] the search of the

Simpson vehicle being driven by Mr. Arciniega.” /d.

at 29a, 30a. Finding that there would not have been

an investigation by Customs or the DEA without the

illegal stop of Arciniega, the district court granted

the motion to suppress all the evidence obtained dur-

ing the course of the investigation. /d. at 3la-32a,

533a-34da,

3. The court of appeals affirmed the suppression

order as to respondents Xavier Padilla, Donald Simp-

son, and Maria Simpson; remanded for further find-

ings with respect to respondents Jorge and Maria

Padilla; and reversed as to respondent Warren

Strubbe.

a. In finding that the Simpsons and Xavier Padilla

were entitled to challenge the stop of Arciniega, the

court relied on a line of Ninth Circuit cases granting

Fourth Amendment standing to participants in a

joint criminal venture who have an interest in the

place searched or the property seized by virtue of

their membership in the joint venture. App., ji/fre,

9a-lla. The Simpsons and Xavier Padilla had stand-

ing, the court concluded, “not simply because the

Simpsons owned the car and jointly possessed the

drugs with Xavier but also because they participated

in the organization, particularly on the day of the

stop.” Jd. at 12a.

' We did not challenge that ruling in the court of appeals,

and we do not do so here.

ow

The court held that Donald Simpson had standing

because “[h]e was a critical player in the transporta-

tion scheme who was essential [because of his status

as a Customs agent] in getting the drugs across the

border.” App., infra, 12a, Maria Simpson had stand-

ing, the court held, because she played “a supervisory

role tying everyone together and overseeing the entire

operation at least from the Mexico end.” /d. at 12a-

l3a.

The court of appeals concluded that Xavier Padilla

had standing because he “exhibited substantial coi-

trol and oversight with respect to the purchase |of

the drugs] in Mexico and * * * the transportation

through Arizona.” App., infra, 13a. in assessing his

standing, the court concluded, “[i]t is inconsequential

that he was not present at the stop nor that he was

unable to exclude others from inspecting the vehicle.”

hid.

With respect to respondents Jorge and Maria

Padilla, who attempted to pick up the cocaine-laden

Cadillac following Arciniega’s arrest, the court held

that it was unable to determine from the record

whether they were “responsible partners of the ven-

ture or mere employees in a family operation.” App.,

infra, 15a. The court noted that they “did not con-

trol the drugs yet they were an integral part of the

formalized business arrangement that did.” /d. at

l4a. Because it was not clear from the record, how-

ever, “if they shared any responsibility for the enter-

prise,” /hid., the court remanded for further findings

on that point. Finally, the court held that co-

defendant Warren Strubbe lacked standing, because

he “demonstrated no active control or supervision

over the drugs or the vehicle involved in this con-

spiracy.” Jd. at l5a-16a.

b. Having rejected the government’s standing ar-

gument, the court of appeals held that the unlawful

.

i)

stop of Arciniega justified the suppression of almost

all the evidence discovered in the course of the ensu-

ing investigation. App., infra, 17a-2la. The only evi-

dence that the court of appeals held not to be sup-

pressible was the statement of a witness who came

forward more than two weeks after the stop of Arcin-

iega and provided information about Xavier Padilla

and Donald Simpson. /d. at 20a.

REASONS FOR GRANTING THE PETITION

Although respondents were not present at the stop

of Luis Arciniega, the court of appeals permitted

them to challenge the legality of that stop on the

theory that they were joint venturers in the trans-

portation of the drugs Arciniega was carrying. Their

joint venture relationship, according to the court of

appeals, gave respondents a sufficient interest in the

Cadillac and the seized drugs to entitle them to chal-

lenge the stop of Arciniega, even though the stop did

not interfere with their freedom of movement in

any Way.

The court of appeals’ decision in this case is con-

trary to this Court’s decisions holding that Fourth

Amendment violations are personal and that only

those whose own rights have been invaded may seek

suppression of evidence seized as a result. -The deci-

sion is also at odds with the law of every other cir-

cuit that has addressed the issue.

The question whether co-conspirators can acquire

a legitimate expectation of privacy in each other's

persons and effects based solely on their joint partici-

pation in a criminal venture is of considerable practi-

cal importance. This case illustrates that point dra-

matically, as the costs of suppressing the evidence

against Arciniega’s joint venturers are enormous.

Although none of the respondents were illegally de-

tained or searched, the courts below have suppressed

7

virtually all of the evidence against the leaders of

the enterprise, including a corrupt federal law en-

forcement official, and have effectively terminated

their prosecutions on serious drug trafficking charges.

1. a. The decision oi the court of appeals is incon-

sistent with basic tenets of Fourth Amendment law.

It is fundamental that ‘ta court may not exclude evi-

dence under the Fourth Amendment unless it finds

that an unlawful search or seizure violated the de-

fendant’s own constitutional rights.” United States

v. Payner, 447 U.S. 727, 731 (1980); see also ibid.

(“the defendant’s Fourth Amendment rights are vio-

lated only when the challenged conduct invaded /)’s

legitimate expectation of privacy rather than that

of a third party’). That principle follows from “the

general rule that ‘Fourth Amendment rights are per-

sonal rights which, like some other constitutional

rights, may not be vicariously asserted.’” Rakas v.

[ilinvis, 4389 U.S. 128, 133-134 (1978), quoting Alder-

man vy. United States, 394 U.S. 165, 174 (1969). This

Court has accordingly stated that it is “beyond any

doubt that the interest in deterring illegal searches

does not justify the exclusion of tainted evidence at

the instance of a party who was not the victim of the

challenged practices.” Payner, 447 U.S. at 735. See

Simmons v. United States, 390 U.S. 377, 389 (1968) :

Wong Sun vy. United States, 371 U.S. 471, 492

(1963). Accordingly, the fruits of Officer Fifer’s

stop of Arciniega should not be excluded as to re-

spondents unless the stop of Arciniega violated their

personal Fourth Amendment rights.

Jn allowing respondents to challenge the stop of

Arciniega because they were joint venturers in the

transportation of the cocaine,’ the court of appeals

* Although the court of appeals concluded that Warren

Strubbe did not have a sufficient role in the conspiracy to take

~

followed a long line of Ninth Circuit cases. Those

cases have treated participation in a conspiracy as

sufficient to give rise to a privacy interest in a place

searched or a property interest in items seized, if the

defendant’s role in the conspiracy gave him joint con-

trol or supervisory responsibility over the premises

searched or the property seized. App., infra, 9a. See

United States vy. Johns, 851 F.2d 1131 (1988) ; United

States v. Broadhurst, 805 F.2d 849, 851-852 (1986):

United States vy. Quinn, 751 F.2d 980 (1984), cert.

granted, 474 U.S. 900 (1985), cert. dismissed, 475

U.S. 791 (1986); United States y. Pollock, 726 F.2d

1456, 1465 (1984): United States y. Johns, TOT F.2d

1093, 1100 (1983), rev’d on other grounds, 469 U.S.

ATS (1985); United States y. Perez, 689 F.2d 1336

(1982). The Ninth Circuit itself has characterized

its doctrine as a “coconspirator exception” to tradi-

tional tests of Fourth Amendment standing. United

States vy. Taketa, 923 F.2d 665, 672 (1991).

The Ninth Circuit’s “coconspirator exception” is

contrary to Fourth Amendment principles established

by this Court. In Alderman, this Court made clear

that ‘“[c]oconspirators and codefendants have been

accorded no special standing” to assert Fourth Amend-

ment violations, 394 U.S. at 172. See also Standefer

v. United States, 447 U.S. 10, 23-24 (1980): Brown

\. United States, 411 U.S. 223, 230 & n.4 (1973).

That rule is based on this Court’s view that “the

advantage of the co-conspirator exception, and remanded for

further findings regarding the role of Jorge and Maria

Padilla, the court treated all the respondents’ status as co-

conspirators as an independent factor in determining Fourth

Amendment standing. For ease of reference, we will some-

times refer to respondents collectively ; we recognize, however,

that the court of appeals has conclusively found standing only

with respect to three of them.

9

additional benefits of extending the exclusionary rule

to other cefendants” are outweighed by “the public

interes: in prosecuting those accused of crime * * * on

the basis of all the evidence which exposes the truth.”

Alderman, 394 U.S. at 175. See also Payner, 447 U.S.

at 735. The Ninth Circuit’s rule cannot be reconciled

with that principle. Nor can it be reconciled with

Rawlings v. Kentucky, 448 U.S. 98 (1980). There,

this Court held that the defendant had no privacy in-

terest in a purse owned by another person, despite the

fact that he had entrusted the purse’s owner with

drugs te carry in the purse. Emphasizing that the

defendant did not have “any right to exclude other

persons from access to [the] purse,” id. at 105, the

Court held that the defendant’s ownership interest in

the drugs did not give him a right to object to the

search of the purse. Rawlings stands in sharp con-

trast to the holding of the court of appeals in this case

that it was “inconsequential” to Xavier Padilla’s claim

of standing that he was not present at the stop, and

“that he was unable to exclude others from inspecting

the vehicle.” App., infra, 13a.

Respondents’ status as co-conspirators does not

broaden their rights under the Fourth Amendment.

The fact that respondents acted in league with each

other to accomplish the ends of the joint venture is

irrelevant to the question whether they had a Fourth

Amendment interest in Arciniega’s freedom of move-

ment that was infringed when Officer Fifer pulled

him over on the highway. A defendant’s role in a con-

spiracy has no generative force so as to create a pri-

vacy interest that does not otherwise exist.

The court of appeals sought to evade a direct con-

frontation with the well-settled principle that Fourth

Amendment rights may not be vicariously asserted, by

10

limiting its joint venture exception to defendants

whose roles in the conspiracy show that they had

supervision and control over the joint venture. See

App., infra, 14a-16a; see also United States vy. Taketa,

923 F.2d 665, 672 (9th Cir. 1991) (noting that grant-

ing Fourth Amendment standing to defendants who

had no ownership or control over the items seized

would create “a true coconspirator exception of gen-

eral applicability”) ; United States v. Kovac, 795 F.2d

1509, 1510-1511 (9th Cir. 1986), cert. denied, 479

U.S. 1065 (1987). Thus, the court of appeals focused

on each respondent’s role in the conspiracy, and

granted or denied standing based on his or her level

of involvement or supervisory status in the scheme.

See App., infra, 12a-16a. Because the Simpsons and

Xavier Padilla were “critical player[s]” (id. at 12a)

in the joint venture. with “supervisory role[s]”

(ibid.) that called for their “substantial control and

oversight” over the criminal enterprise (id. at 13a),

the court found that they had legitimate privacy in-

terests that were invaded by the stop of Arciniega.

With respect to Jorge and Maria Padilla, although

they were “active members” (id. at 14a) who were

an “integral part” (ibid.) of the criminal venture,

the court found that it was unclear whether they

“shared any responsibility” (ibid.) for the enterprise;

accordingly, the court remanded for the district court

“to determine whether they were responsible partners

of the venture or mere employees.” Jd. at 15a. Finally,

the court denied Warren Strubbe standing because

he had “no active control or supervision over the drugs

or the vehicle involved in this conspiracy.” Jd. at 16a.

This is entirely made up. Not only has the Ninth

Circuit manufactured a complex, fact-intensive theory,

that theory is beside the point. The fact that various

11

respondents exercised “control and oversight” over,

and enjoyed “critical player” status in, a criminal

venture that used the vehicle to accomplish its ends

is irrelevant to the basic Fourth Amendment ques-

tion——-whether the police invaded any personal Fourth

Amendment interest of any of the respondents when

they conducted an investigatory stop of Arciniega.’

By focusing on each respondent’s role in the offense,

rather than on whether each was the victim of an

illeval search or seizure, the court of appeals erred.

b. The court of appeals based its standing decision

with regard to Xavier Padilla and the Simpsons on

their status as principals in the joint venture. It

therefore did not decide whether there was any other

eround on which they might have been accorded

standing. For that reason, the decision below stands

or falls on the viability of the Ninth Circuit’s “joint

venture” theory of standing.‘

3In addition to being inconsistent with this Court’s deci-

sions, the Ninth Circuit’s doctrine creates perverse results.

The more prominent a defendant’s role in the underlying

criminal venture, the more likely he is to benefit from a sup-

pression order based on a search or seizure involving another

member of the conspiracy. A kingpin in such an operation,

like Xavier Padilla or the Simpsons, may therefore be effec-

tively immunized from prosecution, while a relatively minor

figure such as Strubbe is left to face the full brunt of the

government’s evidence.

*The court noted that the Simpsons’ ownership of the

vehicle was relevant to the Fourth Amendment analysis, but

did not suggest that that factor alone was sufficient to give

them standing. App., infra, 12a. No other respondent had

any plausible Fourth Amendment interest at stake in the stop

of Arciniega other than as a function of his or her participa-

tion in the conspiracy. Under Ninth Circuit law, as the dis-

trict court noted, that was enough. See App., infra, 23a (“with

respect to Xavier Padilla, Maria Padilla and Jorge Padilla,

12

In any event, once respondents’ roles in the drug

conspiracy are removed from the Fourth Amendment

calculus, it is clear that none of the respondents had

any Fourth Amendment interest that was invaded by

the brief highway stop of Luis Arciniega. In par-

ticular, none of the respondents can claim that their

Fourth Amendment rights were violated because of

their interests in the cocaine or the Cadillac.

Even if respondents had a possessory interest in

the cocaine, the brief investigatory stop of Arciniega

did not interfere with that interest in any meaningful

way. And once the police discovered the cocaine in the

trunk of the car, their right to seize the contraband

overrode any possessory interest respondents could be

said to have in the drugs. See Horton vy. California,

496 U.S. 128 (1990); IIlino’s vy. Andreas, 463 U.S.

765, 771 (1983); United States y. Lisk, 522 F.2d

228, 230-231 (7th Cir. 1975) (“Defendant’s owner-

ship of the bomb might give him standing to challenge

such a seizure, but it would not establish its invalid-

ity’), cert. denied, 423 U.S. 1078 (1976).’

Similarly, the temporary stop of Arciniega did not

significantly interfere with any interest respondents

had in the Cadillac. First, the Cadillac was searched

pursuant to Arciniega’s consent. Neither court beiow

found that the consent to search was invalid. In-

they get standing solely out of the joint venture aspect of

it’).

° We agree, of course, that if respondents had a legitimate

expectation of privacy in the trunk of the Cadillac, they would

not lose their ability to challenge the search of the trunk

merely because it contained 560 pounds of cocaine. Their

possessory interest in the cocaine, however, did not give them

a privacy interest in the place where it was located. See

United States v. Salvucci, 448 U.S. 83, 93 (1980); Rawlings

v. Kentucky, 448 U.S. 98, 104-106 (1980).

13

stead, the courts suppressed the cocaine because they

held that the taint of the illegal stop extended to the

search of the vehicle regardless of the validity of

Arciniega’s consent. Because none of the respondents’

constitutional rights were violated by the illegal stop,

none of them should be entitled to suppression of the

cocaine on a “taint” theory. See Wong Sun v. United

States, 371 U.S. at 492.

The three Padillas had no arguable privacy interest

in the Cadillac that could have been affected by the

stop or search of the car. They did not control the

movements of the vehicle, and they had no power

whatever to exclude others from its use. Even the

Simpsons, who owned the vehicle," suffered no Fourth

Amendment injury when Arciniega was stopped. The

temporary stop did not interfere in any meaningful

way with their right to regain possession of the car

from Arciniega, and nothing in the record indicates

that they retained any right to exclude others from

the trunk of the car or had prohibited Arciniega from

consenting to a search of the vehicle that they had

entrusted to him. The Simpsons have therefore failed

to show how the stop of Arciniega violated any Fourth

Amendment interest of theirs. See Rakas y. Illinois,

439 U.S. 4! 150-131 n.1 (defendant bears “burden of

establishing that his own Fourth Amendment rights

were violated”).

2. The court of appeals’ conclusion that respond-

ents had standing because of their “joint control and

supervision over the drugs and vehicie” arising from

“active participation in a formalized business ar-

rangement” to transport the drugs (App., infra, 14a)

* Donald Simpson held title to the vehicle, and Maria Sylvia

Simpson claimed an ownership interest based on her com-

munity property rights. See Resp. C.A. Br. 9.

14

conflicts with the law of every othe: circuit that has

addressed the issue. With the exception of the Ninth

Circuit, the courts of appeals have uniformly held

that a defendant’s participation in a joint criminal

venture does not give him a protected Fourth Amend-

ment interest in premises searched or property seized,

if he would not otherwise have such an interest.

For example, in United States v. Kiser, 948 F.2d

418, 424 (8th Cir. 1991), cert. denied, 112 S. Ct.

1666 (1992), Kiser argued that the district court

should have suppressed evidence obtained in the

course of an unlawful stop and search of a car owned

by one of Kiser’s employees, who was using the car

to transport cocaine on Kiser’s behalf. The court of

appeals held that Kiser did not have standing to ob-

ject to the stop. The court noted the Ninth Circuit’s

“joint venture céconspirator exception to the stand-

ing rules announced by the Supreme Court,” 948 F.2d

at 424, but declined to adopt that exception.

Similarly, in United States v. Manbeck, 744 F.2d

360, 373-374 (4th Cir. 1984), cert. denied, 469 U.S.

1217 (1985), the district court granted five defend-

ants standing to object to the search of a tractor-

trailer truck. The district court’s theory, like the

court of appeals’ theory in this case, was that the

defendants had an interest in the drugs found in the

tractor-trailer because the defendants were engaged

in a joint venture that used the tractor-trailer for

smuggling drugs. The court of appeals reversed,

holding that the four defendants who were not pres-

ent at the time of the search had not established a

sufficient interest in the tractor-trailer to entitle them

to challenge its search. The court held that the joint

interest in the drugs did not confer standing: “The

privacy interest that must be established to support

15

standing is an interest in the area searched, not an

interest in the items found.” 744 F.2d at 374.

The Eleventh Circuit similarly refused to recog-

nize “joint venture standing” in United States v.

Brown, 743 F.2d 1505 (1984). In that case, Brown

hid cocaine on a co-conspirator’s person. When the

police searched the co-conspirator and found the co-

caine, Brown moved to suppress it. The court of

appeals rejected Brown’s claim, holding that he did

not have a Fourth Amendment interest in the per-

sonal integrity of his co-conspirator, even while his

co-conspirator was transporting drugs belonging to

both of them. 743 F.2d at 1507-1508. See also United

States v. Soule, 908 F.2d 1032, 1036 (1st Cir. 1990)

(rejecting “derivative standing” doctrine raised by

defendant to challenge search of co-defendant’s truck) ;

United States v. DeLeon, 641 F.2d 330, 337 (Sth

Cir. 1981) (defendant does not have standing to

challenge search of a bag in the possession of his

agents and co-conspirators) ; United States v. Galante,

547 F.2d 733, 739-740 (2d Cir. 1976) (co-conspirators

or co-defendants have no special rights under the

Fourth Amendment, and a possessory interest in goods

seized from another’s property is insufficient to estab-

lish right to object to seizure), cert. denied, 431 U.S.

969 (1977); United States v. Lisk, 522 F.2d 228,

230-231 (7th Cir. 1975) (defendant, who gave bomb to

friend to hold in trunk of his car until he asked for

its return, did not have standing to challenge the

search of the car; while he had standing to challenge

seizure of the bomb, the seizure of the contraband did

not violate the Fourth Amendment) (Stevens, J.),

cert. denied, 423 U.S. 1078 (1976).

Several courts have noted that the Ninth Circuit

stands alone in its acceptance of “joint venture”

16

standing. See United States y. Kiser, 948 F.2d at 424

(noting and rejecting the Ninth Circuit’s “joint

venture co-conspirator exception to the standing rules

announced by the Supreme Court”); United States v.

Gerena, 662 F. Supp. 1218, 1245, 1247 n.50 (D. Conn.

1987) (“joint-venture standing” theory is “indistin-

guishable from the discredited co-conspirator and

membership standing arguments”; the Ninth Circuit

“stands by itself in its willingness to accept the via-

bility of joint-venture standing”); United States v.

Schuster, 775 F. Supp. 297, 305 (W.D. Wis. 1990)

(Ninth Circuit’s recognition of standing based upon

a “formalized arrangement” is “in direct conflict”

with Seventh Circuit law).

Seven years ago, we sought review of the same

question, and the Court granted certiorari. United

States \. Quinn, 751 F.2d 980 (9th Cir. 1984), cert.

granted, 474 U.S. 900 (1985), cert. dismissed, 475

U.S. 791 (1986). After briefing and argument, the

- Court dismissed the petition, apparently concluding

that the case was a poor vehicle for resolving the issue

of joint venture standing.’ This case, however, pre-

? The defendant in Quinn was the owner of a boat that was

seized and later searched. The Ninth Circuit held that, despite

his lack of presence at the events in question, the defendant

could contest the validity of the boat's search on the basis of

the joint venture theory. See United States v. Quinn, 751

F.2d 980 (1984). At oral argument in this Court, however,

the question was raised whether the defendant's ownership

of the boat was sufficient to permit him to contest the initial

seizure without reference to the joint venture doctrine. Tr. of

Oral Argument 19-25, United States Vv. Quinn, No. 84-1717

(argued March 5, 1986). After argument, the case was dis-

missed with two Justices dissenting. See 475 U.S. 791 (1986).

This case does not present the factual difficulties the Court

apparently perceived in Quinn. Although the Simpsons had

an ownership interest in the Cadillac, that interest was not

affected by the stop of Arciniega. In any event, no other

17

sents the issue cleanly. The conflict over the validity

of “joint venture standing” has persisted. The Ninth

Cireuit’s rule continues unjustifiably to impede law

enforcement efforts in that region. Accordingly, this

Court’s review is warranted.

CONCLUSION

The petition for a writ of certiorari should be

granted,

tespect fully submitted.

KENNETH W. STARR

Solicitor General

Ropert S. MUELLER, III

Assistant Attorney General

WILLIAM C, BRYSON

Deputy Solicitor General

WitiiaM K. K&LLey

Assistant to the Solicitor General

PATTY MERKAMP STEMLER

Attorney

JuLy 1992

respondent had any proprietary interest in the car; each of

those respondents is entitled to standing, if at all, only through

participation in the criminal conspiracy.

APPENDIX A

UNITED STATES COURT OF APPEALS

rOR THE NINTH CIRCUIT

No. 99-10311

D.C. No. CR-89-0408-RMB

Unrrep Srates or AMERICA, PLAINTIFF-APPELLANT

?,

Xavier V. PapinLa: Mama Jesus PADILia, aka

Suzy; Jonce PADILLA; DoNALD LAKE SiIo1TPSON;

WAkreEN StrrupBe; Marta SyvLvta SIMPSON,

DEFENDANTS-APPELLEES

No, 00-10316

D.C. No. CR-88-0317-RMB

Unrrep STatres oF AMERICA, PLAINTIFPF-APPELLANT

v.

Xavier V. PADILLA, DEFENDANT-APPELLEE

Appeal! from the United States District Court

for the District of Arizona

Richard M. Bi'by, Chief District Judge. Presiding

(la)

2a

Argued and Submitted

September 19, 1991-—San Francisco, California

Filed April 1, 1992

Before: Herbert Y.C. Choy, Arthur L. Alarcon and

Thomas G. Nelson, Circuit Judges

Opinion by Judge T.G. Nelson

OPINION

T.G. NELSON, Circuit Judge:

The United States appeals an order of the district

court holding that the defendants had standing to

bring a motion to suppress, that there wes no rea-

sonable suspicion for the stop of a vehicle, and that

the doctrines of attenuation and independent source

are not applicable to this case. We affirm as to three

of the defendants, remand for further proceedings

for two others and reverse as to the last.

I. FACTS

On September 26, 1989, an Arizona trooper, Officer

Russell Fifer, observed a 1976 Cadillac traveling

westbound on the interstate. The officer noted that

the vehicle appeared to be traveling slightly in excess

of the speed limit (65 m.p.h.), although he admitted

that the vehicle’s speed was not excessive and that he

would not have pulled over the vehicle for that speed.

At the suppression hearing, Fifer testified that the

driver acted suspiciously. Upon noticing the officer,

the driver jerked his head and stiffened. He passed

8a

the patrol vehicle and continued to view him through

the side view mirror.

Fifer followed the vehicle for approximately eleven

miles and testified that during this time the vehicle

slowed down, traveling speeds that varied from 50 to

60 miles per hour. The officer radioed in the license

plate number of the vehicle and was initially in-

formed that the license plates belonged to a Pontiac,

not a Cadillac. There was confusion regarding the

plates but ultimately it was determined at the scene

that the plates were, in fact, correct. Fifer testified,

however, that the basis for his decision to stop the

vehicle was not the possibility of the fictitious plate.

Rather, he stopped the vehicle for driving at a speed

he decided was too slow.

The officer testified that he believed he could stop a

vehicle for driving at a slow speed if he believed the

speed was not “reasonable and prudent.” Fifer testi-

fied that he routinely issued both citations and warn-

ings to travelers driving significantly slower than the

posted limit. The defense introduced evidence that

there is no posted minimum speed limit on the stretch

of interstate where the vehicle was stopped.

Having pulled over the Cadillac, the officer ques-

tioned the driver, Luis Arciniega. Arciniega pro-

duced a valid driver’s license and proof of insurance

demonstrating that a customs official, defendant Don-

ald Simpson, owned the Cadillac.

Another Department of Public Safety (DPS) offi-

cer, Robert Williamson, appeared on the scene. Both

officers believed that Arciniega matched a drug

courier profile. Accordingly, they requested and re-

ceived Arciniega’s consent to inspect the vehicle

whereupon they discovered 560 pounds of cocaine

concealed in the trunk.

4a

The timing between the actual arrest and the reso-

lution of the license plate mix-up is close. Fifer testi-

fied that the problem with the plates had been cleared

up by 11:46 a.m. and that the arrest occurred at

11:50 a.m. Williamson’s testimony confirms that the

search of the trunk was not conducted until after the

officer had learned of the license plate error.

Following the search, a third officer, Vanderpoole,

was dispatched to the scene. Vanderpoole informed

Arciniega that “[h]e was looking at at ieast twenty

five years in prison; and since he was 50, he might

not make it out of prison.” Vanderpoole assured

Arciniega that if he assisted the police, however, they

would not file charges against him with the county

attorney. Not surprisingly, Arciniega promptly

agreed to cooperate. After a brief interrogation, it

became apparent that Arciniega was merely a courier

or “mule,” carrying the load for other yet unidenti-

fied conspirators and the officers set out to apprehend

Arciniega’s “employers.” DPS took Arciniega, the

vehicle, and a portion of the cocaine to the Regal 8

Motel in Tempe where he was instructed to telephone

his contact. He called what turned out to be the

home of Alicia Padilla Romero, the sister of defend-

ants Jorge and Xavier Padilla.

He spoke with apparent familiarity to an individ-

ual identified only as “Pollo” who promised to dis-

patch a runner to retrieve the load at the motel.

Jorge Padilla and Maria Jesus “Suzy” Padilla, ar-

rived at the motel in a white sedan. Jorge attempted

to start the Cadillac while Maria began pulling the

sedan out of the parking lot. DPS surrounded both

vehicles and both defendants were immediately ar-

rested. The officers found a rental contract in the

white sedan bearing the name of Xavier Padilla, the

brother of Jorge and husband of Maria.

5a

Following a lead from Maria, the investigators

proceeded to Alicia Padilla Romero’s house. While

they were questioning Alicia, Xavier Padilla entered

the residence. He indicated under questioning that

he had been staying with Alicia only temporarily and

did not directly implicate himself. The officers did

not arrest Xavier at that time and in fact did not

do so until January of the following year.

The following day, however, DPS informed the

U.S. Customs Service that Customs Inspector Simp-

son’s automobile was involved in a drug seizure.

Customs agents and DPS investigators interrogated

Luis Arciniega who further implicated Simpson. As

a direct result of Arciniega’s statements, a search

warrant was issued on Simpson’s home which re-

sulted in the recovery of incriminating evidence im-

plicating both Simpson and his wife, defendant

Maria Sylvia Simpson.

On October 6, 1989, agents from the Customs

Department, DEA and the Arizona Department of

Public Safety all met with government counsel and

agreed to cooperate and exchange information. This

meeting is documented in an internal memorandum

from the Customs Service and confirms that DPS in-

formation had been incorporated into all federal in-

vestigations which were commenced after the drug

seizure.

Meanwhile, on October 12, 1989, in an apparently

unrelated incident, Guillermo Owen was arrested in

Sierra Vista, Arizona, for possessing a small amount

of cocaine and paraphernalia. In an attempt to cut

a deal, Owen offered what he knew about Arciniega’s

arrest a few weeks earlier. Owen discussed at length

his involvement with Luis Arciniega, Arciniega’s son

Frank, defendant Warren Strubbe and various other

players. From the DEA report evidencing the inter-

6a

rogation, it appears that he did not, however, provide

information regarding Mrs. Simpson, Jorge or Maria

Padilla. Furthermore, the report only makes two

brief references to Xavier and one to an unidentified

customs official, presumably, Donald Simpson.’

Owen stated that he helped Strubbe and the Arci-

niegas unload about half of a large but unspecified

amount of cocaine from a white and red Cadillac into

Strubbe’s Tucson apartment. A short time later,

Arciniega departed with the remaining cocaine still

in the Cadillac. Owen stated that he, Frank Arci-

niega and Strubbe delivered the cocaine from

Strubbe’s apartment to a storage facility rented by

a Troy Barlous. After interrogating Owen and ob-

taining additional information, the DEA agents were

issued a search warrant for the storage unit and un-

covered 440 pounds of cocaine.

After a thorough reading of the record which in-

cludes reports from Customs, DEA, and the Arizona

Department of Public Safety, an overall picture

emerges. Xavier Padilla and the Simpsons were not

drug merchants but were in the business of trans-

porting contraband across the border for those that

were, The seized cocaine was apparently owned by a

cartel known as the “E] Tejano” organization. Both

Xavier Padilla and Sylvia Simpson had previously

1 The reference in the DEA Report of Investigation dated

October 17, 1989, are as follows: (1) “OWEN stated Frank

[Arciniega] received a telephone call and informed OWEN

that it was from Javier PADILLA in California who informed

him that Louis had been arrested with the load of cocaine and

had fingered him, (2) “OWEN stated that on 19-14-89, he

was in the exercise yard with Louis Arciniega. OWEN stated

that Louis told him that if Javier (PADILLA) did not take

care of him and his family, he (Louis) would tell about the

Customs guy that was involved with him.”

7a

met with these people in Mexico and had successfully

delivered three other loads. Jorge and Maria Padilla

were possibly mere “employees” of the conspiracy and

were under the direct supervision of Xavier.

Warren Strubbe was not a member of the trans-

portation conspiracy responsible for the load seized

from the illegal stop. According to Owen, Strubbe

came in contact with the seized cocaine but did so

only briefly. Instead, he participated in a separate

conspiracy involving a separate load. While appar-

ently the cocaine was initially combined, it had been

divided and Strubbe’s share parted ways with the

confiscated load before the stop of Arciniega.

Strubbe’s connection with the seized load ended at

the point of division.

II. PROCEEDINGS BELOW

The district court determined that there was no

founded suspicion for the stop of the vehicle. The

government does not appeal this issue nor will we

address it. The government does appeal, however,

the district court’s conclusion that all of the defend-

ants had standing to contest the illegal stop and

seizure of the cocaine found in the Cadillac even

though none was present at the stop and only the

Simpsons owned the vehicle. The court ruled that

because they all exhibited sufficient control and super-

vision over the contraband, they could claim a legiti-

mate expectation of privacy in the vehicle searched

and the contraband seized.* The district court said:

2 The term “standing” is used when discussing who may

assert a particular Fourth Amendment claim. “Fourth amend-

ment standing is quite different, however, from the ‘case or

controversy’ determinations of Article III. Rather it is a

matter of substantive fourth amendment law; to say that a

8a

I think it is clearly a joint venture and even

though it is a joint venture for transportation,

as distinguished from ownership, it was a joint

venture that had contro] of the contraband.

The court further found that the stop “clearly led

to the subsequent activities of the day when the car

was delivered to Tempe; that without that stop, there

would not have been any involvement by the DPS,

nor would they have informed Customs and DEA

about that.” The government now appeals the sup-

pression of the seized evidence. We affirm the district

court’s suppression with respect to Xavier Padilla

and Donald and Sylvia Simpson, but we have insuffi-

cient facts before us to determine whether Jorge and

Maria Padilla had a legitimate expectation of pri-

vacy and remand for additional findings of facts re-

garding them. We further hold that Warren Strubbe

has not demonstrated sufficient standing and reverse

the district court’s decision as to his claim. Because

we reach differing conclusions as to the various de-

fendants, their positions will be discussed separately.

Ill. DISCUSSION

STANDING

Standard of Review

Mixed questions of law and fact are generally re-

viewed de novo although the clearly erroneous stand-

ard applies if the necessary analysis is primarily

factual in nature. United States v. McConney, 728

F.2d 1195, 1202-1203 (9th Cir. 1984) (en banc).

party lacks fourth amendment standing is to say that his

reasonable expectations of privacy have not been infringed.”

United States v. Taketa, 923 F.2d 665, 669 (9th Cir. 1991)

(citing Rakas v. Illinois, 489 U.S. 128, 139-140 (1978) ).

9a

Issues of standing are generally reviewed de novo.

United States v. Kovac, 795 F.2d 1509, 1510 (9th

Cir. 1986), cert. denied, 479 U.S. 1065 (1987). The

district court’s factual findings on the issue of stand-

ing must be accepted unless clearly erroneous. United

States v. Broadhurst, 805 F.2d 849, 851 (9th Cir.

1986).

1. The Simpsons and Xavier Padilla

As we will explain, the Simpsons and Xavier Pa-

dilla have established a legitimate expectation of pri-

vacy. The government challenges their standing be-

cause none of the defendants was present at the time

of the arrest nor exhibited physical control of the

vehicle or contraband. The Simpsons base their stand-

ing not only on their ownership of the car but also

becuuse they engaged in an organized effort to trans-

port the contraband. Xavier Padilla argues that his

ultimate responsibility for the load and the facts re-

sulting from that role confer standing.

To contest the legality of a search and seizure, the

defendants must establish that they had a “legitimate

expectation of privacy” in the place searched or the

property seized. Rakas v. Illinois, 439 U.S. 128, 143-

44 (1978). “Neither ownership nor presence are re-

quired to assert a reasonable expectation of privacy

under the Fourth Amendment.” United States v.

Johns, 851 F.2d 1131, 1136 (9th Cir. 1988) ; United

States v. Perez, 689 F.2d 1336, 1338 (9th Cir. 1982)

(per curiam). Instead, we have consistently held

that a coconspirator’s participation in an operation

or arrangement that indicates joint control and su-

pervision of the place searched establishes standing.

United States v. Davis, 932 F.2d 752 (9th Cir.

1991); United States v. Quinn, 751 F.2d 980 (9th

Cir. 1984) (per curiam), cert. dismissed, 475 U.S.

10a

791 (1986); United States v. Pollock, 726 F.2d 1456

(9th Cir. 1984).

In ruling that the all defendants had standing, the

district court determined that they were clearly par-

ticipants in a joint venture. The defendants were

“involved in the joint control over a very sophisti-

cated operation involving ownership in Mexico or Co-

lombia, [and] transportation aspects of the business

{were} controlled by these people, and I think under

those circumstances they have standing.” With re-

spect to these three defendants, we agree. Not only

was there a formal arrangement for the transporta-

tion, the defendants shifted responsibility for the con-

traband between each other at various stages of the

relay.

Our case law “is far from clear on the question of

what a formal arrangement for joint control actually

means. ... We engage in fact-specific analysis that

includes consideration of the degree of cooperation

and the respective possessory interests asserted.”

United States v. Taketa, 923 F.2d 665, 671 (9th Cir.

1991). In so doing, we examine the totality of the

circumstances to determine if the defendant’s legiti-

mate expectations of privacy were violated. Rawlings

v. Kentucky, 448 U.S. 98, 104 (1980); United States

v. Kovac, 795 F.2d 1509, 1510 (9th Cir. 1986), cert.

denied, 479 U.S. 1065 (1987).

For example, in United States v. Johns, 707 F.2d

1093 (9th Cir. 1983), rev’d on other grounds, 469

U.S. 478 (1985), two pilots who had already off-

loaded the contraband enjoyed standing to contest the

search of a truck and seizure of the marijuana. Their

standing was based on the fact that they “shared a

bailor bailee relationship” with the defendants who

had possession of the drugs and were present during

the search. Jd. at 1099-1100. The pilots owned the

lla

marijuana but never argued that they owned nor con-

trolled the vehicle that was searched. It was their

formalized arrangement and possessory interest in

the drugs which gave them a legitimate expectation

of privacy. See, 2.g., United States v. Quinn, 751

F.2d 980, 981 (9th Cir. 1984) (absent defendant had

standing to contest search because he owned the boat

searched and had a possessory interest in the mari-

juana seized); l’nited States v. Pollock, 726 F.2d

1456, 1465 (9th Cir. 1984) (defendant exercised

‘Joint control” over drug laboratory in his friend’s

house); United States v. Perez, 689 F.2d 1336, 1337-

38 (9th Cir. i982) (per curiam) (defendants who

accompanied vehicle could contest seizure of drugs

from truck driven by coconspirator); United States

v. Davis, 932 F.2d 752, 757 (9th Cir. 1991) (defend-

ant who had key to another’s apartment, could come

and go as he pleased, and stored items in a locked

safe for privacy held to have standing); United

States v. Robertson, 606 F.2d 853, 858 n.2 (9th Cir.

1979) (overnight guest had standing to assert Fourth

Amendment violation in search cf his possessions).

In fact, “[i]n virtually every case applying the co-

conspirator exception, the party granted standing to

contest the search of another’s property himself had

an ownership interest in seized or searched property.”

United States v. Taketa, 923 F.2d 665, 671 (9th Cir.

1991). In Taketa, the court rejected the defendant’s

standing argument because he asserted no owner-

ship interest in the items seized. We recognize that

the defendants here did not own the contraband in

the strict sense that the Johns defendants did. Never-

theless, they held a possessory interest in the same

sense that the proprietors of a delivery service would

possess a package.

12a

Accordingly, the Simpsons and Xavier Padilla had

standing not simply because the Simpsons owned the

car and jointly possessed the drugs with Xavier but

also because they participated in the organization,

particularly on the day of the stop. Simpson, him-

self, was directly involved in the scheme. Obviously,

his greatest asset to the conspiracy was his status as

a customs official and his ownership of. the car which

avoided a search of his vehicle at the border. This,

combined with evidence found at his home and the

telephone records linking his customs station to the

Padilla home and to a number in Agua Prieta, Mex-

ico, supports the district court’s finding that he had

a coordinating and supervisory role in the operation.

He was a critical player in the transportation scheme

who was essential in getting the drugs across the

border. Simpson established standing.

His wife, Maria Sylvia Simpson, arranged for the

pickup of the drugs in Mexico and travelled across

the border, keeping contact with the load.’ It ap-

pears that she provided a communication link be-

tween her husband, Xavier Padilla, and the E] Tejano

people.* She held a supervisory role tying everyone

* Neither Simpson can establish standing solely by the con-

duct of his or her spouse. See Kovac, 795 F.2d at 1511 (a de-

fendant could not assert standing by claiming he had a right

to exclude others from access to his wife). They need not

claim such an interest, however. Both exercise independent

ownership of the vehicle and supervision or control over the

drugs or participation in the operation. Moreover, their joint

participation in the venture is one more factor contributing to

the totality of the circumstances. See Jd. at 1510, 11.

‘In his statement to the DEA, Xavier Padilla described

the final meeting between himself, Sylvia and Oscar Monge,

the contact with “E] Tejano” who has sometimes been indi-

vidually been referred to by that name. In this meeting, Sylvia

13a

together and overseeing the entire operation at least

from the Mexico end. To continue with the delivery

service analogy, she was the manager of the pickup

point. Consequently, she also has established an ex-

pectation of privacy.

Xavier Padilla, for his part, exhibited substantial

control and oversight with respect to the purchase in

Mexico and primarily, the transportation through

Arizona. DEA Agent Plover testified to the Grand

Jury that he believed that Xavier Padilla probably

had ultimate responsibilitv for the contraband on the

day of the stop. Xavier indicated to the agent that

it was he who was on the other end of the line when

Arciniega called from the motel to make arrange-

ments for pickup. Furthermore, he was participat-

ing in the negotiations with Mrs. Simpson and Oscar

Monge in Agua Prieta. He had a possessory interest

in the drugs equal to that of Mrs. Simpson and ex-

hibited an equal degree of responsibility. It is in-

consequential that he was not present at the stop nor

that he was unable to exclude others from inspecting

‘the vehicle. See Johns, 707 F.2d at 1100; Perez, 689

F.2d at 1338. Finally, as the man in charge, he sent

his wife and brother to retrieve the load and was the

principal contact with the “client,” reflecting »n over-

all responsibility to receive the drugs.

The complex relationships among these three de-

fendants demonstrate that they were engaged in a

sophisticated operation. Joint control can be estab-

lished where the defendants were actively involved in

complained to Monge that she had not been paid for the pre-

vious three loads that she had “crossed” from Agua Prieta

to Donglas, Arizona. Monge assured Sylvia that he would

pay her for all deliveries after she had crossed the fourth and

final load. At that point, Sylvia acquiesced and agreed to de-

liver the last load.

l4a

a formal arrangement for transportation. Quinn,

751 F.2d at 981. The fact that the defendants in

this case insulated themselves from the mule, Arci-

niega, is an example of their sophistication. Pre-

viously, we have considered efforts to avoid detection

as one more factor demonstrating a reasonable ex-

pectation of privacy. See Pollock, 726 F.2d at 1465

(defendant’s participation in relocating methampheta-

mine lab to avoid detection demonstrated expecta-

tion of privacy). We hold, therefore, that because

Xavier Padilla and Dona'd and Maria Simpson have

demonstrated joint control and supervision over the

drugs and vehicle and engaged in an active participa-

tion in 2 formalized business arrangement, they have

standing to claim a legitimate expectation of privacy

in the property searched and the items seized.

2. Jorge and Maria Padilla

Jorge and Maria Padilia argue that they are en-

titled to standing primarily because they were active

members of a formalized business arrengement on

the day they attempted to retrieve the cocaine. It is

evident that they were surrogates of the orgs nization

intending to retrieve the cocaine for their apparent

superiors. They did not control the drugs yet they

were an integral part of the formalized business ar-

rangement that did. See United States v. Broadhurst,

805 F.2d 849, 851-52 (9th Cir. 1986) (codefendants

distributed responsibilities for marijuana cultivation

and processing cocaine, evidencing formalized busi-

ness arrangement). It is not clear from the record,

however, if they shared any responsibility for the

enterprise. Xavier told the DEA that Jorge and

Maria were following his orders when they arrived

at the Regal 8 Motel. They intended to hecome the

subsequent leg in the transportation scheme and

l5a

would have held much the same bailee status as Luis

Arciniega, only closer by blood and proximity to the

boss. This, in and of itself, is not enough to confer

standing. See United States v. Aikens, 946 F.2d 608,

613 (9th Cir. 1990) (crew member had no standing

to challenge search of vessel). On one end of the

spectrum we have Luis Arciniega, a pawn working

for a wage, on the other end we have the Simpsons

and Xavier Padilla who were running the show.

Jorge and Maria fall somewhere within these ex-

tremes but as the record now stands, we cannot de-

termine where.

Xavier acknowledged in his statement to the DEA

that Jorge and Maria knew what they were doing

when they went to the motel. This does not neces-

sarily evidence responsibility in the joint venture,

however. Additionally, while their familial relation-

ship with Xavier adds to the totality of the circum-

stances test by demonstrating their personal connec-

tion with Xavier, it does not confer standing by it-

self. See Kovac, 795 F.2d at 1511. On remand, we

ask the district court to determine whether they were

responsible partners of the venture or mere employ-

ees in a family operation.

3. Warren Strubbe

The above analysis discusses an ongoing relation-

ship among defendants and a variety of actions on

the day of the stop demonstrating active participa-

tion in a transportation scheme. By contrast, Strubbe

was noticeably absent from the day’s events and can

only argue that he was a passive participant in the

larger conspiracy. The mere involvement in a con-

spiracy does not, by itself, suffice. United States v.

Toliver, 433 F.2d 867, 869 (9th Cir. 1970), cert.

l6a

denied, 491 U.S. 913 (1971). To hold that Strubbe

had standing when he was only a participant in the

larger criminal conspiracy, would be to create a “true

coconspirator exception of general applicability.”

Taketa, 923 F.2d at 672. We concluded in Taketa

that such an exception to Rakas which would provide

standing for any person accused of criminal con-

spiracy would be in clear contravention of holdings

of the Supreme Court and this circuit. /d. (citing

Alderman wv. United States, 394 U.S. 165, 172

(1969)); United States v. Turner, 528 F.2d 148, 164

(9th Cir.), cert. denied, 423 U.S. 426 (1975)).

Strubbe did not monitor the load, prepare to retrieve

it, nor did he own the vehicle transporting it. In

fact, he is part of a wholly separate illegal effort in-

volving the cache in the storage unit. When Luis

_ Arciniega drove away with the cocaine that was ulti-

mately seized, Strubbe no longer had any control or

apparent interest in the contraband or his conspiracy

to deliver it. See United States v. Mendia, 731 F.2d

1412, 14274 (9th Cir.) (defendant abandoned expec-

tation of privacy by turning heroin over to concon-

spirator and by not following when coconspirator

drove away with the heroin in his trunk), cert. de-

nied, 469 U.S. 1035 (1984).

His limited contact differs markedly from the

others who aided transportation, monitored the drugs

or claimed possessory interests in the seized drugs,

the vehicle, or both. See Perez 689 F.2d at 1338.

Consequently, Strubbe cannot claim standing because

he has demonstrated no active contro] or supervision

over the drugs or the vehicle involved in this con-

spiracy.

17a

SUPPRESSION

Factual findings during a suppression hearing are

accepted unless clearly erroneous. United States v.

Echegoyen, 799 F.2d 1271, 1277 (9th Cir. 1986).

Whether evidence resulting from an illegal stop is

sufficiently tainted to require supression is a mixed

question of law and fact that we review de novo.

United States v. Johns, 891 F.2d 243, 244 (9th Cir.

1989) ; United States v. Limatoc, 807 F.2d 792, 794

(9th Cir. 1987).

The district court determined that the stop was

unreasonable and that all subsequent information

compiled that day would not have been discovered

without it. The court based its ruling on United

States v. Johns, 891 F.2d 243 (9th Cir. 1989). In

Johns, the court stated:

Our court has considered the question in terms

of the substantiality of the taint. “‘[I]f the

illegally obtained leads were so insubstantial that

their role in the discovery of the evidence sought

to be suppressed ‘must be considered de minimus,

then suppression is inappropriate.’ ... In Ba-

call, the court emphasized that it was not using

just a “but for” test, but was inquiring whether

the illegally obtained evidence “tended signifi-

cantly” to direct the investigation toward the

evidence in question.

Johns, 891 F.2d at 245 (quoting United States v.

Bacall, 443 F.2d 1050, 1056 (9th Cir.), cert. denied,

404 U.S. 1004 (1971) (quoting Durham v. United

States, 403 F.2d 190, 196 (9th Cir. 1968) (internal

citations omitted) ) ).

Here, the impetus behind the DEA and Customs

investigations was clearly the stop of Arciniega. The

18a

documents before the district court indicate that the

reason for the investigation of Simpson was because

his vehicle was apprehended in a drug seizure.” Two

of the Padillas were arrested directly from the tele-

phone call from the motel. Xavier Padilla was imme-

diately implicated as a direct result of the seizure.

The illegal stop was the sole reason for discovering

the drugs and these defendants. The exploitation of

the primary illegality could hardly be more direct.

See Johns, 891 F.2d at 245. See also United States v.

Chamberlain, 644 F.2d 1262, 1269 (9th Cir. 1980),

cert. denied, 453 U.S. 914 (1981).

The Government argues, however, that Arciniega’s

cooperation separated his information from the il-

legal arrest. It is well settled that even “granting

[the] establishment of the primary illegality,” if the

prosecution can demonstrate that the evidence was

obtained independently, the primary taint has been

purged. Wong Sun v. United States, 371 U.S. 471,

A88 (1963).

It was held in United States v. Ceccolini, 435 U.S.

268, 276 (1978), that a living witness’s testimony or

information will not purge the taint when the testi-

mony was not of the person’s free will. The Court

cautioned, however, that before live witness testi-

mony or, in this case, information, as opposed to tan-

gible evidence, will be suppressed, a “closer more

* The Report of Investigation prepared by the United States

Customs Service indicates that Simpson was identified as a

possible coconspirator only after a meeting with DPS follow-

ing the seizure. Moreover, this memorandum, prepared Oc-

tober 18, 1989, substantiates that agents from Customs, DTA,

DPS and the U.S. Attorney’s office intended to integrate their

efforts and based their investigation on the information sup-

plied by DPS.

19a

direct link between the illegality and... . testimony

is required.” Jd. at 278.

We find such a direct link here. First, we recog-

nize the heavy weight upon a man’s shoulders who

has just been arrested with hundreds of pounds of

drugs in the car he was driving. The significance of

this pressure is critical not just for its emotional

impact but because we previously have studied the

amount of time that elapsed between the illegal

search and the questioning. United States Ramirez-

Sandoval, 872 F.2d 1392, 1397 (9th Cir. 1989). The

discovery of the cocaine and the questioning of Arci-

niega were virtually simultaneous events.

Secondly, we are persuaded by the fact that the

identities of the defendants would not have been

known without the seizure and subsequent question-

ing of Arciniega. In Ramirez-Sandoval, we noted

that “the identity of the witnesses and their relation-

ship to the defendants were not known to the police-

men and would not have been discovered in the ab-

sence of the illegal search.” Jd. at 1298 (citing

United States v, Rubaleava-Montoya, 597 F.2d 140.

145-44 (9th Cir. 1978) (“here there is no indication

that the connection between the crime and the wit-

nesses would have been discovered from a source inde-

pendent of the illegal search”) (citations omitted) ).*

Also, as in Ramirez-Sandoval and Rubaleava-Mon-

toya, there is no indication that the informant would

have come forward of his own accord. In fact. it

would have been ludicrous to suggest that he would.

We stated in Ramirez-Sandoval, “fo]n the contrary,

*See also United States v. Scios, 590 F.2d 956, 963 (D.C.

Cir. 1978) (en banc) (Ceccolini distinguished because the

government only learned of the potential witness after illegally

searching the defendant’s files).

20a

[the witnesses] had every incentiye not to do so be-

cause they participated in the illegal activity.” 872

F.2d at 1398.’

We conclude that Arciniega’s cooperation was the

direct result of his arrest and his position as a puta-

tive defendant. His “roadside deal” was too inex-

tricably linked to the seizure and too closely related

to the discovery of the defendants to purge the taint.

Therefore, the district court properly suppressed all

evidence seized based on the illegal stop against the

Padillas and Simpsons.*

The Government argues that Guillermo Owen’s

statements should not have been suppressed and we

agree. Although he only incriminated Xavier Padilla

and Donald Simpson marginally, Owen was the kind

of independent source that will be separated from the

primary illegality. Over two weeks elapsed before he

talked to the DEA about the illegal stop. He came

forward independently to extricate himself from a

wholly unrelated drug arrest. “Where police miscon-

duct did not induce the witness’ cooperation, the tes-

? This court has never adopted a per se rule limiting Cec-

colini to “good citizen” witnesses who testify “out of a sense

of civic duty,” nor do we do so now. Ramirez-Sandoval at 1398

(quoting United States v. Hooton, 662 F.2d 628, 633 (9th Cir.

1981), cert. denied, 455 U.S. 1004 (1982). We still adhere

to an analysis that looks to the incentive behind a person’s

decision to come forward when discussing the attenuation

determination.

8 The entire coordinated investigation was based solely on

the illegal stop of Arciniega. Consequently, with the excep-

tion of Owen’s statements which while derivative, came inde-

pendently into the hands of the investigators, all evidence

before the district court was properly suppressed. This in-

cludes evidence recovered in the Simpson home as well as

the post-arrest statements made by Xavier Padilla and Luis

Arciniega.

2la

timony wil! not be suppressed even though the unrea-

sonable intrusion was one step in a series of events

that led to the witness testifying.” United States v.

Hooten, 662 F.2d 628, 632 (9th Cir. 1981), cert. de-

nied, 455 U.S. 1004 (1982). His statements are dis-

tinguishable from Xavier Padilla’s because the latter

was arrested as the result of the investigation which

flowed from the illegal stop. In Padilla’s ease, the

seizure played the critical role in his decision to co-

operate with the DEA. See United States v. Leo-

nardi, 623 F.2d 746, 752 (2d Cir.), cert. denied, 447

U.S. 928 (1980).

IV. CONCLUSION

With respect to standing, we hold that the district

court’s factual findings pertaining to Donald Simp-

son, Maria Sylvia Simpson and Xavier Padilla were

not clearly erroneous and that its applications of law

were correct. We further hold that it properly sup-

pressed evidence seized from the vehicle driven by

Luis Arciniega or obtained directly because of the

stop. We remand to the district court for further

findings of fact as to Jorge and Maria Padilla be-

cause we are unable to determine their degree of re-

sponsibility. If it is ultimately determined that they

had standing, the suppression analysis applies to them

as well. Finally, we hold that the district court’s

finding that Warren Strubbe had standing was clearly

erroneous. Consequently, we need not discuss the

suppression issue with respect to him.

AFFIRMED in part, VACATED in part, and RE-

MANDED. :

99a

—_

APPENDIX B

IN THE UNITED STATS DISTRICT COURT

POR THE DISTRICT OF ARIZONA

No. CR-89-408-T-RMB

UNITED STATES OF AMERICA, PLAINTIFF

Us.

Xavier V. PApILLA, MARIA Jesus PADILLA, JORGE

PADILLA, DONALD LAKE SIMPSON, WARREN STRUB-

BLE, MARIA SYLVIA SIMPSON, DEFENDANTS

May &, 1990

9:00 o’clock a.m.

HEARING ON PENDING MOTIONS

Before THE HONORABLE RicHArD M. BILBY

* bol ” ~ *

[128] THE COURT: Well, it’s the finding of the

Court that under the circumstances in this case the

parties do have standing to challenge the search. I

think it is clearly a joint venture, and even though

it was a joint venture for transportation as distin-

guished to a joint venture for ownership, it was a

joint venture that had control of the contraband.

Clearly they took it from one spot to another, from

Douglas to Tucson, separated the load, took it on to

another place in Tempe, they intended to have con-

23a

trol over it. Clearly they had-—Xavier Padilla had

a supervising role over it, the two Simpsons owned

the car; they had not given up their interest in the

car; it was in the locked trunk of the car. And |

think they have a [129] reasonable expectation of

privacy there.

I think that with respect to Xavier Padilla, Maria

Padilla and Jorge Padilla, they get standing solely

out of the joint venture aspect of it. And I think

that is clearly here. This isn’t just a simple conspiracy,

but they were involved in the joint control over a

very sophisticated operation involving ownership in

Mexico and Colombia, transportation aspects or the

business controlled by these people, and I think under |

those circumstances they have standing. So I will al-

low them to contest it.

I would like to hear the testimony first from the

arresting officers, so let’s get going.

24a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

CRIMINAL MINUTES (Tucson-Globe Division)

Date: May 8, 1996

88/ 317/ 3

89/ 408/ 1-6

Yr Case+ Dft#

U.S.A.

vs.

PADILLA, ET AL XAVIER V

HONORABLE RICHARD M. BILBY

[Filed May 16, 1990]

Proceedings: HEARING PENDING MOTIONS:

Open Court

Counsel make statements to the Court. Witnesses

sworn and examined, Exhibits marked and admitted.

ORDERED AS FOLLOWS:

* * * * *

Pursuant to Findings on the Record,

The Court finds that defendants have standing in

the Motion to Suppress the search seizure of co-

defendant Arcinega in the Simpson vehicle.

« * * * *

25a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

No. CR-89-408-T-RMB

UNITED STATES OF AMERICA, PLAINTIFF

Us,

XAVIER V. PADILLA, MARIA JESUS PADILLA, JORGE

| PADILLA, DONALD LAKE SIMPSON, WARREN

STRUBBLE, MARIA SYLVIA SIMPSON, DEFENDANTS

May 15, 1990

Tucson, Arizona

HEARING ON PENDING MOTIONS

Before THE HONORABLE RICHARD M. BILBY

* * * * *

[176] THE COURT: It’s the finding of the Court

that Officer Fifer did not have founded suspicion for

making the stop, based upon the following facts:

First, his report never states that a stop was based

on the slow speed. There is nothing in the tape that

indicates that.

Secondly, though he came in and testified here at

trial to that, he says it was based on slow speed, and

later the fictitious plates, and he specifically stated

that it was a violation of state law, the slow speed,

which I think the record clearly shows is not the fact.

26a

While I don’t believe he was lying, I cannot help

but have his credibility drawn into question in light

of the fact that I gave him a specific order not to do

certain things, and he promptly went out and did

them, that he had listened to the tape two or three

times.

I don’t know that that really changed his testimony

any; otherwise, I would have stricken it. But it’s

just—it does bear on credibility.

[177] Further, at some point prior to the arrest,

or the search, I should say, which then was followed

by the arrest, he knew from some pretty good evi-

dence that on the scene that the insurance certificate

showed that the car and the license plate belonged to-

gether, and that would have at least required a fur-

ther inquiry back to the dispatcher, which would

have shown, as it did at some point in time, that the

car and the license plate belonged to each other.

Now, he has testified that that took place after the

arrest and the search. The time elements are pretty

hard to come by. I’m not too sure that I would be

happy basing a decision on that, but it is very clear

that prior to tne search he knew that the insurance

certificate and the car belonged to each other.

And then, even assuming his testimony that—that

they got permission to do the search, then found out

later, I just don’t feel a lot of credibility to that.

I think the facts in the case would indicate that—

that they had adequate knowledge prior to any

search, that this car and the license plate belonged to

each other.

MR. KERN: Your Honor, may I interrupt? I’m

sorry.

With respect to that particular finding, I don’t

know if it will make any difference to whether or

not you are going to rely on that finding, but on page

27a

45 of the transcript, the question put to Mr. Fifer

was:

[178] “And in addition, you had the license plate

now associated with the Cadillac?

“Answer: Off of the insurance card?

“Question: No, sir.”

And then the question is: “I’m sorry, you had the

insurance card which identified the car as a Cadillac?

“Answer: Yes, sir.

“Question: And you had the name of the pur-

ported owner of the car on the insurance form?

“Answer: Yes.”

So there was nothing at all having to do with the

license plate number.

THE COURT: Thank you for pointing that out.

I should correct myself. He did have the fact that

the car—he had a description of the car such as the

one there, and it was insured.

So that certainly should have been a red light to

cause something, but the primary reason here is that

we start out with one reason. We have police reports

which say: I made a stop for one reason.

We come into trial and get an exactly opposite

story about the stop as for speed. There is no state

law on speed in this area. He should have known

that, because this is his area.

And then we are faced with two differing [179]

descriptions, and I specifically, after his direct testi-

mony, tell him: Don’t listen to the tapes, and he

promptly decides to do it. For what reason, I don’t

know; maybe didn’t hear me, but whatever it is, I

think it bears crucially on his credibility in the testi-

mony.

So the basis for the stop has to be, I think based,

really, today, on what he said here as the speed.

There is no law on the speed.

28a

I have upheld searches, and I did very recently in

a case involving another massive amount of cocaine,

where a Border Patrol vehicle was parked off the

highway, and on the interstate about 20 miles east of

where this stop took place.

A truck came by at a place where everybody is

going 65, 70 miles an hour, and the minute the truck

sees the Border Patrol vehicle, it just stopped—not

stopped, but it slows right down to 50 miles an hour,

when the rest of the traffic continues on. There is no

red light, there is no—nothing else.

They then pull out to look at him, and the person

looks suspicious, and they pull the truck over and

found 400-and-some pounds of cocaine hidden in the

back of the truck in a false compartment.

I felt there that speed was a factor, because every-

body is going very fast, and as soon as he sees the

[180] Border Patrol officer he stops, when nobody

else does. There is no red lights, there is nothing.

And that’s a place in the road where everybody is

going lickety-split, and to just drop your speed like

that is very suspicious.

This isn’t that case. The man had a red light, he

slows down for a red light, he speeds back up again,

he just doesn’t stay at one speed and then go up, he

stays right at 50 miles an hour.

I think under those circumstances there just are

not founded suspicion. You’ve got to have some basis

to stop people.

And there is no question in my mind that—and I

happen to think that is good police work, that when

you stop somebody for a legitimate reason, it’s per-

fectly proper to ask them: May we check your car?

And you can always tell them no.

Now, I guess you’ve got to be worred about that,

because where if you said yes, you might get a warn-

29a

ing, and you say no, you might get a ticket, but that’s

not this case. The fact is, they ask, and that’s per-

fectly all right. But we just don’t get to that issue

in this case,

So the motion to suppress the search of the Simp-

son vehicle being driven by Mr. Arcinega is eranted.

I haven’t given any thought, and I don’t know if

you have either, as to what status that puts us in.

If you [181] would like to, we can go ahead, and I

guess the next thing to do, really, is the motion to

suppress statements or the Padillas.

30a

APPENDIX E

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

CRIMINAL MINUTES (Tucson-Globe Division)

Date: May 15, 1990

88/ 317/ 03

89 $408 1-6

Yr Casex Dft+

U.S.A.

vs.

PADILLA, ET AL XAVIER V

HONORABLE RICHARD M. BILBY

[Filed May 16, 1990]

* * * x *

Pursuant to Findings on the Record,

Court finds that Officer Fifer did not have founded

suspicion to make the stop, therefore,

ORDERED, Motion to Suppress the Search of the

Simpson Vehicle Driven by Arcinega is GRANTED.

* * * * *

3la

APPENDIX F

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

No. CR-89-408-A-RMB

UNITED STATES OF AMERICA, PLAINTIFF

vs.

XAVIER V. PADILLA, MARIA JESUS PADILLA, JORGE

PADILLA, DONALD LAKE SIMPSON, WARREN STRUB-

BLE, MARIA SYLVIA SIMPSON, DEFENDANTS

May 30, 1990

Tucson, Arizona

HEARING ON PENDING MOTIONS

Before THk HONORABLE RICHARD M. BILBY

. + * . .

[8] THE COURT: All right. Based on the state-

ment of facts provided to me by the Government, it’s

my finding that the stop which the Court has pre-

viously suppressed clearly led to the subsequent ac-

tivities of that day when the car was delivered to

Tempe; that without that stop, there would not have

~ been any involvement by the DPS, nor would they

have informed Customs and DEA about that.

The Customs investigation flowed directly from the

fact that from the news and from the law enforce-

32a

ment they found out that a U.S. Customs’ inspector’s

car had been involved in this.

[9] They went to Casa Grande, contacted Mr.

Arcinega; he was arrested and they discussed things

with him that they wouldn’t have had, they would

not have known about him, had it not been for the

siop of Mr. Arcinega. From that they then received

information which led them directly to the other de-

fendants.

The DEA investigation clearly flowed from the

same thing, because Agent Sprout called Agent Gra-

bowski and_said that he had received information

that had come from an informant regarding a recent

cocaine seizure, and someone by the name of Arcinega.

Had there not been the stop, it is clear that none

of that would have ever come about. It’s not a “but-

for’ test, but it seems to me under the rulings in

U.S. versus Johns 111, 891 F.2d 243, the court talks

about first whether or not it should be diminimus,

and I find that it’s diminimus, and stated that the

court, quote, “In Bacall, the court emphasized: “It’s

not using a “but-for” test, but was inquiring whether

the illegally-obtained evidence tended significantly to

direct the investigation towards the evidence in ques-

tion.” ”

And I think that this statement makes it abun-

dantly clear that is exactly what happened. So that

under those circumstances I’m going to hold that they

can’t—it is not attenuated, and the motions to sup-

press will be granted.

* * * * *

33a

APPENDIX G

IN 'THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

CRIMINAL MINUTES (Tucson-Globe Division )

Date: May 30, 1990

88/ 317/ 03

89/ 408/ 1-6

Yr Case+ Dft+

U.S.A.

vs.

PADILLA, ET AL XAVIER V

HONORABLE RICHARD M. BILBY

[Filed May 30, 1990]

Proceedings:

FURTHER HEARING PENDING

MOTIONS: xx Open Court

Counsel make statements to the Court..

Basec on the Statement of Facts provided to the

Court by the Government, the Court finds that the

stop, the Court previously suppressed, clearly led to

the subsequent activities of that day when the car

was delivered. Without the stop, there would not

have been any involvement by the DES or informa-

tion to DEA.

The customs investigation flowed directly from the

fact that from the news and through law enforce-

ment investigation, the customs department found

3da

out that a United States Customs inspector’s car was

involved in the stop. Customs subsequently went to

Casa Grande, Arizona, contacted Mr. Arcinega, the

driver of the vehicle, and had discussions with him.

Customs would not have known about Mr. Arcinega

had it not been for the stop, the subsequent investiga-

tion and the information subsequently received which

led directly to the other defendants.

The Drug Enforcement Agency investigation

clearly flowed from the same stop, and subsequent in-

formation because agent Sproat contacted agent Gra-

bowski to advise him that Sproat had information

given him by an informant regarding a recent cocaine

seizure with some named Arcinega.

Had there not been a stop, it is clear to the Court

that none of this investigation would have transpired.

Although this is not a “but for” test, under the rul-

ings in US v. JOHNS, 891 F.2nd 243, the Appellate

Court first speaks as to whether or not the identifi-

cation is de minimis, and this Court finds, clearly it

is NOT de minimis. In US v. BACALL, 443 F.2nd

1050, the Court emphasized that it was not using

just a “but for” test, but was inquiring whether the

illegally obtained evidence “tended significantly” to

direct the investigation toward the evidence in ques-

tion. This Court finds it abundantly clear that this is

what happened, therefore,

Under the all of the circumstances previously noted,

this Court finds that it is not attenuated and the De-

fendant’s Motions to Suppress are hereby GRANTED.

* * * * *

s/ Richard M. Bilby

RICHARD M. BILBY

United States District Court

WY wv. &. GOVERKWENT PaINTING OFrice, 1992 312324 45472