Opposition Brief — United States v. Padilla

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¢een. P

ve . * 1992

OFFTE OF THE citeK

SUrincwmi CouTT. bs

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

92-207

UNITED STATES OF AMERICA

o%e

XAVIER V. PADILLA, ET AL.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR DONALD LAKE SIMPSON

IN OPPOSITION

Respectfully Submitted By:

(S) .*

DONALD LAKE SIMPSON

REG. NO#. 01766-1956

U.S. BUREAU OF PRISONS

POST OFFICE BOX 33

TERRE HAUTE, INDIANA 47808

Respondent -Defendant, Pro Se

Maria Sylvia Simpson, Pro Se

Respondent-Defendant, Pro Se

(8/2) 239-/53)1

TASLE OF CONTENTS

— eee |

Question Presented :

search of the vehicle he was driving ?

Respondents’ proposed enswer is: Yes.

List Of Interested Parties :

1. United States Oz America

2. Xavier V. Padilla

3. Marie Jesus Padilla, a/k/a Suzy

4. Jorge Padille

5. Warren Strubbe

6. Maria Sylvia Simpson

7. Donsld Lake Simson

. -i-

Question Presented ......-eeeceeceeeeneccsecenees TTTTITT.

List Of Interested Parties Below ........-seeeeeeeeeenees

Table Of Authorities.........-.--ccee eee ecewceeeeeeeeenee

Opinion Below .....-----eeeeeecec cece ecreeeeeenneeeseeees

JUTISGICTION ......--- eee e eee eeees PSST coecceccscsdboooes

Procedural HiStOry......-.---eseeeeeecee reese eeeeeneeeces

Reasons For Not Granting The Petition ......---++--+eeees

CONCLUSION 2.2... cece cece cee eee ene eeeseesneneeseeeeeees

4. Wether membership in @ joint venture to transport drujs gives co-consp-

-irators a legitimate expectation of privacy entitling them to challenge the in-

-vestigatory stop of one of tye members of the conspiracy, and the subsequent

TABLE OF AUTHORITIES

CASES:

Abney -v- United States, 431 U.S. 651, 52 L.Ed. 2d at

Alderman -v- United States, 394 U.S. 165-174 (1969 ).

Cobbledick -v- United States, 309 U.S. 323,324-326, -

60 S.Ct. 540.......... TTTTITITITTT TY

Cohen -v- Beneficial Industrial Loan Corp., 337 U.S.

S41 ( 1948 ) on cccccageccccccccccccccccccces

Coolidge -v- New Hamshire, 403 U.S. 443,445 ( 1971 ).

Brown -v- United States, 411 U.S. 223,230 &N. 4

DiBelle -v- United States, 369 U.S. 121 ( 1962 ).....

Elkins -v- United States, 364 U.S. 206, 4 L.Ed. 2d

BE 0 Dituicanscnesccetens seen ieee

Gambino -v- United States, 275 U.S. 310,72 L.Ed. 293

SEE MEET phinpcovddsnnenssnssuscanensnes

Jones -v- United States, 362 U.S. 257,80 S. Ct. 725

( 1960 )......... shintinetontnnssintg iednaee

Katz -v- United States, 389 U.S. 347,357,19 L.Ed.2d

516, 88 S.Ct. 507 ( 1967 )......... peiadees

Mapp -v- Ohio, 367, U.S. 643,656,81 S.Ct. 1684,1692

6 L.Ed. 2d 1081 ( 1961 )............0000e ee.

Maryland -v- Macon, 472 U.S. 463,466,86 L.Ed. 2d

370,105 $.Ct. 2778 ( 1985 ).............

Mincey -v- Arizona, 473 U.S. 385,390,57 L.Ed. 2d

290,98 S.Ct. 2408 ( 1978 )..........eceeeeeeeee

Payton -v- New York, 455 U.S. 573, 586 ( 1980 )...........

Rakes -v- Illinois, 439 U.S. 128,139-140 ( 1980 ).........

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

Smith -v- Maryland, 442 U.S. 740,99 S.Ct. at 2580

€ BEBO Jnccccccccccccccccccccccccccccceccccccccs

Standefer -v- United States, 447 U.S. 10,23-24

Terry -v- Ohio, 392 U.S. 1,88 S.Ct. 1868,20 L.Ed.

OTS 6 GID Bicucccaccceces OLLE ERD EEOC LIED

ethin

PAGE

14,15

12,13,14

10,12,14

11,12,17

11,17

8,S

wo ox a ue ke hUWw!hLlUWN

CASES:

United States

PNRRRBUBEB

United States

TABLE OF AUTHORITIES CON'T.

-v- Broadhurst, 805 F.2d 849, et

851 ( CA 9 1986 )........ eee

-v- Chadwick, 433 U.S. 1,97 S.Ct.

2476,53 L.Ed. 2¢ 538 ( 1977 )........

-v- Corral-Villenicencio, 753 F.2d

785,789 ( CA 9 1985 )......---eeeeeee

-y- Cortez, 449 U.S. 411,417,101,

S.Ct. 690,694,66 L.Ed. 2d 621

-v- Davis, 932 F.2d 752 ( CA 9 )

v- Greene, 783 F.2d 1364,1361

( CA 9 ) Cert. Denied 476 U.S.

1185,106 $.Ct. 2923,91 L.Ed.

OS GES € SEED Pocccccccccescnccoccccs

-v- Jacobsen, 466 U.S. 105,113,80

' L.Ed. 2d 85,104 S.Ct. 1622

-v- Janis, 428 U.S. 433,446,96 S.Ct.

3021,3028,49 L.Ed. 20 1081

v- Jeffers, 342 U,S. 48,72 S.Ct.

OB ( 2061 J ncccccccccccccccccccccsces

v- Johns, 707 F.2d 1093 ( CAG )

( 1983 )........-. PPTTITITITITITITT TTT

-v- Johns, 851 F.2d 1131,1136

( CA 9D 1988 jinn erence neecccccccccees

-v- Kovac, 795 F.2d 1509,1510

( CA 9 1986 ) Cert. Denied,

479 U.S. 1065 ( 1987 )....-.eennnnnns

-v- Perez, 689 F.2d 1336,1338

( CA GS 1982 po. cece een nnnnnnnnennnes

-v- Pollock, 726 F.2d 1456

PAGE

8,9

8,10

10,12

ona vt OB uu & WO WN =

uw & wwe SO

CASES:

TABLE OF AUTHORITIES CON'T.

United States -v- Quinn, 751 F.2d 980 ( CA 9 1984 )

Cert. Grented, 474 U.S. 900,

( 1985 ) Cert. Dismissed, 475 U.S.

791 ( 1986 ) .......cccccneee

United States -v- Ross, 456 U.S. 798,824,825,70 L.Ed

2d 572, 102 S.Ct. 2157 ( 1982 )......

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

21 U.S.C. § 641

21 U.S.C. § 846

28 U.S.C. § 1291

Fourth Amendment

STATUTES

CONSTITUTIONAL PROVISION

PAGE

7,17

11,12,17

2,10,16 Passin,

_~_ fo VOPreemlmlUMGDlMmMUCNGSOCtiC‘ SCO

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

UNITED STATES OF AMERICA

XAVIER V. PADILLA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR DONALD LAKE SIMPSON IN

OPPOSITION

OPINION BELOW

Tne opinion of the court of appeals ( Pet. App. le-21e ) is reported eat

GoU F. 20 85s.

JURISOICTION

The judgment of tne court of appeals was entered on April 1, 1992. The

jurisdiction of this court is timely invoked under 28 U.S.C. @ 1254 (1), in

that tne petitioner's petition for e writ of certioreri was filed on or before

July 30, 1992.

STATEMENT

After an indictment wes returned in the United States District Court for

the District of Arizona, which cnargec tyerein, tne Respondents Simpson, ris

wife Maris Simpson anc four other with conspiracy to distribute end possess

-i-:

rr a ee: ee en)

i a a a a oe a oe 2 oe ee ee ee

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** |

28 ||

with intent to distribute cocaine, in violetion of 21 U.S.C. § 846, and poss-

-ession of cocaine with intent to distribute it, in violation of 21 U.S.C. §

841 (a) (1), @s well as charged respondent Xavier Padilla with engaging in a

continuing criminal enterprise, in violation of 21 U.S.C. § 648, the District

Court granted respondent's motion to suppress most of the above poisonous

fruits of incriminating evidence obtained without prior judicial euthorizetion

or reasonable probable cause in violation of respondents’ Constitutional priv-

-ecy interests under the Fourth Amendment. Tne Ninth Circuit Court of Appeels

affirmec tne District Court's decision in pert, vacated in part anc remanded

the metter with directions. The Goverment hes now submitted a petitidn for writ

of certiorari to review the lower courts’ decision. Tnis petition is submitted

to oppose tre Goverment's cfforts before the Honorable Court and to ask that

tne lowe> courts’ decision be summarily affirmed and thet certioreri be denied.

PROCEDURAL HISTORY

On Septemoer 25, 1963, Arizona Department of Public Sefety petrolman

Russell Fifer stopped the car driven by Luis Arciniegea. After officer Fifer

receivec radio dispatched information that the license plate number purportedly

affixed on the Cadillac driven by Arciniege wes registerec to e Pontiac, he

signaled Arciniegs to stop end Arciniege immediately pulled the car over. binen

officer Fifer walked up to the car he requested Arciniege’s driver's license

enc the car registration. Arciniege geve officer Fifer his personel driver lic-

“ense and valid insurance card information on tne Cadillac ell reflecting the

mames of Donsld Lake Simpson and Marie Sylvia Simpson.

Officer Fifer then requested e driver's license, warrant and enot>her car

registration cneck tnrough the NCIC computer based upon that adcitionsl infor-

“mSt.on and documentation. A police radio dispetcher immedietely informec Off-

-2-

oew#ssewwFeeweeweweoe

-icer Fifer thet Arcinieos hed « velic driver's license, anc thet the initiel

license plete information providec nim earlier wes incorrect and that the lic-

-ense plete information given by him were in fact correct enc registered to

Cedillec owned by tne Respondents Donalc and Marie Simpson.

By tnen, another Public Sefety patrolman hac errived on the scene of the

stop only moments earlier, end asked Arciniega if he minded if @ search of the

cer is conducted. Arciniege responded, * The whole car ? " Without responding

to Arciniege's responsive question, 6nd without receiving Arciniege's actuel

or impliec consent to search, tne petrolmen proceedec to search the glovebox

and then plecec the steering wreel in lock steus end removed tye keys from tne

igntition enc t xen proceedec to tre rear of the cer and opened tye trunk with

tnec, wherein ne Ciscoverec the cocaine. Arciniege was immecietely errested and

charged with suspicion of possession of « controllec substance. At tnet time

no field test of tre substance ciscovered was performec nor cic the officers

then apply for @ sesrch werrent to complete their search of the car.

After the above intercourse between Arciniege end Officer Fifer anc other

la. enforcement officers, anc receiving anculpatory statements resulting from

custodial interrogetion, Arciniege wes then propositioned and ne egreed to

make @ controlled delivery of the cocaine from that custodiel setting. First,

Arciniege enc safety patrol officers set up operations from e motel in Tempe,

Arizone. Second, shortly thereafter, Arciniege pleced es telephone call to th:

residence of the Respondents Jorge end Marie Padille requesting them to meet

with him et thet locetion. Shortly efter arriving st the motel, the Padilles

previously substitute: for tne 55) pounds of cocaine and were arrestec there

; : : '

| tne scenc. After being subjected to innerently coercive custocial interrogation

by arresting officers, Marisa Pedille succumbed and then lec le» enforcement

-3-

attempted to drive off in the Simpsons’ Cadillec leden with " concrete soma

oo eM OD HY F BR

officers to @ house which Exaier Padille was Staying and, he too, was erres

later and charged as one of the principals in a drug smuggling operation and

conspiracy to distribute 560 pounds of cocaine.

Prior to trial, respondents filed @ proper motion asking the court to

Suppress @1l evidence resulting from the warrantless and illegal search of

respondent Simpsons’ car Arciniega was Griving when spprenhended. Respondents

eil argued thet they had recognizable Standings to challenge the stop, search

and seizure of the cer Arciniegs was Griving, anc that es @ matter of lew, it

wes wholly unreasonable, uneuthorizec end unlawful under the laws and Constit-

“ution of tre United States. The District Court agreec anc so ruled, besed

vpor tie perticuler evidence presented and developed at the Suporession hear-

“ang, thet respondents hac equal standing to challenge the stop and search of

tne cer anc tne resulting fruit discovered thereof, because tine Goverment's

evidence emply purported that respondents were ell involved in " @ join: ven-

“ture for transportetion ” of the discovered contraband, and that tne joint

venturers “ hed control of the contrebend * et the time of the stop. Petit-

~ioner’s Appendix at 222.

In sum, the Goverment's evidence Gevelopeo at the hesring clearly and

forcefully demonstrated that [ the } Public Safety Officers wholly lacked any

reasonable suspicion or cognizable probable ceuse to either stop Arciniegs or

to even conduct the petently unreasonable search of the Simpsons’ vehicle

Griven by Arciniege. Despite this legally flawec position, Petitioner maintein

end argued at the hearing thet the Stop of the car was valid and thet the ses-

“ren of the car was consensuel. Respondents cid not concede either point. Tne

District Court agreec witn respondents claims tnat Arciniegsa nad not, anc in

- - :

+ect, Could mot legally give the officers e« velic consent to search the Simo-

-sons’

car under the surrounding circumstances, and thet the resulting search

-4-

wes wiolly unreesonadle. In granting tne respondents’ Motion to suppress ell

evidence found in Simpsons’ vetiicle, tne District Court found tnet there

would not neve been @ prosecution by the Goverment in the ebsence of the il-

-legel stop end search of Arciniege and the cer owned by the Simpsons. Petit-

-ioner's Appendix et 3le-32e, 33e-34e.

Petitioner appeals to the United Stetes Court of Appeals for the Nant”

Circuit end participeted in oral argument on September 1°, 1991. On April i,

1992, the ‘dant Circuit, without dissent, effirmec the District Court's sup-

-oressio” order 2 to respondents Xavier Padills, Donaice Simpson, anc ‘istic

Sylvie Simoson; enc elso remanded txe case for further findings wit resovct

to resnz dents Joroe enc ‘erie Padills; end ecdition lly reverses es to tric

resoinee t warren Strudoc.

In rulin> on te stendins issuc 1% question Dy Peticioner verein, Honore

eable Circuit Jucze ‘lelson, speexine for tix Court, correctl,; "elo that: (1)

tyres refendaxts ( t72 Sampsons anc Kevier Pacillse ) involivec in @ forrsl arr-

eangenent for trensportetidn cf Grugs ond wit respo sible sositions in tne

venture wd stending to cuwllenye legality of searcn of venicle, eltnouon

tney weTe Not present et the time; (<) 65 to two otner defendants ( Jorge anc

Merie Pedille ), it wes necessary to determine whether they were responsible

partners of the venture or mercly employees in @ family operation; * (3) @

Sixth defendant ( Warren Strubbe ), who was 8 passive perticipant in lerge:

conspiracy, did not have stencing; (4) courier’s cooperation did not separatc

his information from illegel srrest, so thet ell evidence egeinsc the first

toree defencerts based on illegel stop wes properly suppressed; (5) stete-

-ments by enotner person two weeks later should not have been suppressed.

-5-

* Tne Petitioner's Motion for Extention of Filing Time misstated the record

that the court extended its ruling to ell 6 defendants.

so eoeomUm,vUC UCU DLUCPmUCMtsCsSNG

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More specifically, tne Ninth Circuit found that respondents Simpson and

Xevier Padille were entitled to challenge the stop and search of the Simpsons’

cer driven by Arciniege, end in doing so, relied upon e« well-established line

of Circuit precedents which granted Fourth Amendment standing to participants

in @ joint criminal venture wno have esserted an interest in the plece search-

“ec or the property seized by virtue of their purported membership in thet

joint venture. Petitioner's Appendix at Ga-i1a. In these precise circumstance,

the Court further found thet the Simpsons end Xevier Padilla each hed standing,

" mot simply beceuse the Simpsons owned the Caedillec car and jointly possessed

the Grugs with Xevier, but elso because they participsted in the orgenizetion,

perticulerly on tne dey of the stop. * Pet. App. et 12s.

It concludes thet the unreesonadle and unlewful stop and searc’) of Arcini-

“ege anc the Simpsons’ cer driven by him, amply justified the suporession of

primarily @)1 the evidence discovered thereunder, with the exception of the

Statements of Guillermo Owen who came forward more than two weeks efter the

Stop and seercn in question end provided incriminating information egeinst Xav-

‘ier Padille end Doneld Simpson as « result of @ wholly unreleted Crug errest.

Additionslly, Judge Nelson also effirmed the District Court's finding thet re-

“spondent Werren Strubbe did not have standing to make @ Fourtn Amendment chel-

~lenge, end therefore did not even discuss the suppression issue with respect

to him.

REASONS FOR NOT GRANTING THE PETITION

Petitioner erroneously contends inter elie thet tne decision of the court

of eppeels is inconsistent with besic tenets of Fourth Amendment Lew, end tnet

the fruits of Officer Fifer'’s stop, search and seizure of Arciniege and tie

Simpsons’ cer should not had been excluded as to respondents Simpsons enc Kev-

P . ~e “a? os no + neir eTte-

r Pecille because tne ston of Arciniege cid not violate eitncr of t 2)

-ic

«sonal Fourt.1 Amendment Raguts. Furtyer, tnat tre ints Circuit's “coconspiretor

exception " is contrary to Fourt Amendment principles estabdlisheo by tnis Court,

and that by focusing on each respondent's role in the criminal venture, rather

than on whether eacn was the victim of an illegal search or seizure, tne Cour: of

Appeals errec. For those reasons, therefore, the decision below stands or falls

on the viability of tne Nintn Circuit's " joint venture " theory of standing. He-

-spondent Simpson asserts that this Court has repeatedly founc these arguments

substance as a matter of law ond eccordinaly, has con-

unpersuesive in legitimate

Cc re. e. *

esistintly rcjectec Petitoner’s prior similar cnellences mace nere. See, g->

United States -V- Quinn, 751 F. 2d 980 ( CA 9 1984 ), Certiorari granted, 474

U.S. 900 ( 1985 ), Cert. Dismissed, 475 U.S. 791 ( 1986 ), and its progeny; See

also. United States -V- Johns, 707 F. 2d 1093 ( CA 9 1983 )(®Joint venturers wns

’ . i. 5 cf . + 5 ‘

excrcisec continuing contre] and e reasonable legitimate cxpectation Oo. privacy

in tre plece t 73st wes scsren héve

herein asserted is Similerly flawed and warrents woolly no relic:. Tne Nintn Cir-

‘ 4Cea:!' © > a? Ps - -

’ retull cermine hesc

-cuit, nevertrcless, once agein fully adcressed enc ceresuily oc ined thesc

7 . wie lrec

Ciaims anc sounsc taem merivicss.

Ine Court hele, after carefully and paintakingly examining tne record evid-

-ence and the full body of governing law, specifically, thet respondents Simpsons

and Xavier Padille had established a legitimate reasonable expectation of privacy

to assert standing. The Court further found and reasoned that the respondents

Simpson based their standing not only on their ownership of the car but also be-

-cause they had engaged in an organized effort to transport the contraband. The

Court also made clear, however, that “ neither ownership nor presence et the

j ti 4 iva under

scene of crim. were requirec to assert 6 reasonable expectation of privacy

tne Fourt': Amendnent ", citing United States -V- Johns, 851 F. 2d 1131, 1136 (CA

8 198€ ); United States -V- Perez, 689 F. 2d 1336, 1338 ( CA 9 1982 ). Instead,

affe

we have consistently held that a coconspirator's participation in en operation

or arrangement that indicates joint control and supervision of the place search-

~ed establishes standing, citing United States -V- Davis, 932 F. 2d 752 (cAS |!

1991 ); United States -V- Quinn, supra; United States -V- Pollock, 726 F. 2d

1456 ( CA 9 1984 ).

In discussing the standard of review of standino, the Ninth Circuit Court

correctly held that the District Court's factual findings on the issue of stand-

-ing must be accepted unless clearly erroneous, citing United States -V- Broad-

~hurst, 805 F. 2d 842, at 851 ( CA 9 1986 ); United States -v- Kovac, 795 F. 2d

1503, 1510 ( CA 9 1985 ), CERT. DENIED, 479 U.S. 1065 ( 1987 ). In this critical

espect of the revic. process the petitioner has not and cannot seriously point

Out erroneous factuel finding underly! »9 the lower court's suppression order.

“The Petitioner attempts te disrenard the initial werrantless and unreasonable

investioetory stop end search without a " reesonable " or " founded " suspicion

of any criminel activity ", United States -V- Greene, 783 F. 2d 1364, 1367

( CAS ), CERT. DENIED, 476 U.S. 1185, 106 S.Ct. 2923, 91 L.Ed. 2d 551 ( 1986 ),

and now seeks tnis Court's concurrence in not taking into full account the total,

“ity of that wholly unjustified illegal stop and search of the respondents’ car,

in absence of a reasonable suspicion of criminal activity, or distinguishable

exception to the " fruit of the poisonous tree " doctrine. Terry -V- Ohio,3S2

U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 ( 1968 ); United States -v- Cortez, 449

U.S. 411, 417, 101 S. Ct. 690, 694, 66 L. Ed. 20 621 ( 1981 ). Hence, Petition

-er's attempts to minimize and disregard these important factors by arguing that

the fruits of Officer Fifer's stop of Arciniega should not be excluded es to re-

-spondents unless the stop of Arciniega violated their personel Fourth Amendment

Rights, must be rejected besed upon the above eutnority alone.

This Court has previously sent clear mandates down articulating wat actions

constitutes e legelly permissible werrantless investigatory stop [ and ] the

level of cause necessary to justify the investigatory stop and search under

the facts of this cease. The Ninth Circuit has done likewise explaining that thq

requisite level of cause is a “ reasonable " or " founded " suspicion of crimi-

-nal activity. United States -V- Greene, supra, at 1367; United States -V- Cor-

ral- villavicencio, 753 F. 2d 785, st 789 ( CA 9 1985 ). Each of these decis-

-ions were direct offsprings of both Terry -V- Ohio, supra, and United States -

-V- Cortez, supra, the Court holding in Cortez, that " An investigative stoo

must be justified by some objective manifestation that the person stopped is,

or is about to be, enseged in criminal activity." Id., 449 U.S. 411, at 417,

101 S. Ct. 690, at 694, 66 L. Ed. 2d 621 ( 1981 ). In tne instant case, Petit-

-icner wholly feiled to demonstrate any of the necessery factors cf founded su-

-spicion tc justify its opposition to the respondents’ standing under tine co-

“conspirator exception to chellense ell resulting physiciel evidence obteinec

trom tne illegal stop anc searcn of respondents’ car. This failure provides én

adcitionel bases wry tnis Court must reject and deny Petitioner's request for

@ writ of certicreti in this cese.

Additionally, the Fourth Amendment provides :

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

and effects, against unreasonable searches and seizures, shall not

be violated, and no Warrant shall issue, but upon probable cause,

supported by Oath or Affirmation, end particularly describing the

place to be searched, and the persons or things to be seized. °

It is no question that the above right to security in person [ and ] pro- |

/illegally conductec Governmentel searches enc seizures such as occurred in tne

instent cas2. A seercy compromises the individual interest in privacy; é seiz-

1 -ure deosrives the individuel of dominion over his or her person or property.

-perty provides continuing protection ageinst e vast array of erbitrarily anc |

— 85, 104 S. Ct. 1622 ( 1984 ), Petitioner categorically failed to make a ret-

United States-V- Jacobsen, 466 U.S. 109, AT 113, 80 L. Ed 2d 85, 104 S. Ct.

1622 ( 1984 ); Mincey -V- Arizona, this Court unanimously left no doubt about

the basic rule of Fourth Amendment jurisprudence applicable to the Petitioner's

petition for a writ of certiorari. Honorable Justice Stewart speaking for the

Court stated:

* The Fourth Amendment proscribes all unreasonable searches anc

seizures, end it is e cardinal principle that " searches conducted outside the

judiciel process, without prior approvel by judge or magistrate, are pre se

unreasonable under the Fourth Amendment-- subject only to a few specifically

estedlisied anc well-delineated exceptions, " citing Katz -V- United States,

383 U.S. 347, 357, 19 L. Ed 2d 576, 88 S. Ct. 507 ( footnotes omitted );

United States -V- Ross, 456, U.S. 798, 824-825, 72 L. Ed 2d 572, 102 S. Ct.

2157 ( 1982 ).

This above binding precedent point up another serious flaw in

the Petitioner's reasoning tnat neither Respondents’ privecy interest nor poss

“essory interest hes been invaded by Officer Fifer's stop, search and seizure

of the contraband found in Respondents Simpsons' vehicle, Id., 437 U.S. 385,

AT 393, 57 L. Ed. 2d 295, 98 S. Ct. 2408, and the Ninth Circuit's " coconspir-

“ator exception " extended the respondents Simpsons and Xavier V. Padilla is

contrary to Fourth Amendment priniples established by this Court, citing

Alderman -V- United States, 394 U.S. 165, 174 ( 1969 ); Standefer -V- United

States, 447 U.S. 10, 23-24 ( 1980 ); AND Brown -V- United States, 411 U.S. "7

230 & n.4 ( 1973 ). |

In eddition to erroneously overlooking the important difference between

privacy interest and possessory interest, as developed in earlier precedents |

of this Court, Maryland -V- Macon, 472 U.S. 463, 469, 86 L.Ed 2d 370, 105 S. |

Ct. 2778 ( 1985 ); United States -V- Jacobsen, 466 U.S. 109, 113, 80 L. Ed. 2d

-10-

4_y DB Ww

-ional anelysis of either implicated interest, particularly " @ legitimat2 es

-ation of privecy interest "--- versus --- " the things to be seized recsonable

possessory interest " [ that ] very well may have been derived solely from re-

-spondents' alleged joint participation and joint venture relationship in the

transportation of the cocaine drugs, and when viewed in this legal context, re-

-spondents' personel Fourth Amendment Rights in terms of boty privacy anc poss-

-essory interest (s) cre sufficiently implicated in the place searched and thc

property seized over which [ the ] Respondents exercised joint control end super-

-visory responsibility on the dey of the stop and seizure to qualify and witi-

-stand intense scrutiny under the Ninth Circuit's " joint venture " toreory cf

standing.

toreover, Respondent wholly cisagrees with Petitioner's argument and con-

-flictinc cisegriement on one hand that even if respondents hac &é possessory in-

-terest in the coccine, tne brief investigatory stop ( without mentioning the

full-blown warrantless search conducted tnereot ) of Arciniega did not interfere

with interest in any meaningful way; and on the other hand, Pet. Brief at 12, n.

5, we agree, of course, that if respondents had a legitimete expectation of pri-

-vacy in the trun: of the Cadillac, they would not lose their ability to chellen-

-ge the search of tne trunk merely because it contained 560 pounds of cocaine.

Their possessory interest in the coceine, however, did not give them 6 privacy

interest in the place where it was located, citing United States -V- Salvucci,

448 U.S. 83, 93 ( 19380 ); Rawlings -V- Kentucky, 448 U.S. 98, 104-106 ( 1980 ).

These arguments are wholly contradictory and grossly misstete the law and the re-

-cord evidence in this case. Pet.'s Brief at 12 &n.5; See also, United States-

-V- Salvucci, 448 U.S. 83, AT 91-92; Rakas -V- Illinois, 439 U.S. 128, AT 139-

-140.

Contrery to the Petitioner's misguided contentions above, which once again

-11-

failec to mexe an rationel analysis of the substantial body of relevant underly-

-ing controlling cese lews governing " standing ", in Rakas -V- Illinois, this

Court explicitly rejected pre-Rakus concepts of " vicarious " standing to assert

one's Fourth Amendment Right. Id., eat 133-138, 99 S. Ct., at 425-428. Reiterat-

-ing that Fourth Amendment Rights are personal rights, the Court stated that"[a]

person who is aggrieved by an illegal search and seizure only through the intro-

-Guction of damaging ev_dence secured by a search of a third person's premises

or property hes not had any of his Fourth Amendment Rights infringed. " Id., at

134, 99 S. Ct., at 425.

In tie case now before the bar, the record evidence developed below and cor-

“rectly ruled on by each of tie lower courts, clearly shows that Respondents

Simpson properly assertec e subjective expectation of privacy es well as a velid

posscssory interest in their automoblie end its contents thet must be considered

not only reasonable but elso objectively reasonable as 6 matter of law. See

Smith -V- Maryland, supra, 442 U.S.,at 740, 99 S. Ct., at 2580; Katz -V- United

States, 389 U.S. 347, 361, 88 S. Ct. 507, at 516 ( 1967 ); enc es such, has dem-

-onstratec e legitimate expectation of privacy as well as ownership interest in

the contraband seized fron the trunk of their vehicle to establish unquestionable

Fourth Amendment standing under the " coconspirator exception " for purposes of

Fourth Amendment inquiry into the lawless stop and seerch in question, and whet-

“her society is prepare to acknowledge that the warrantless search of nde

car violated the Fourth Amendment. Katz, supra, 389 U.S., 361, 88 S. Ct., at

516; Salvucci, supra, 448 U.S., at 90-91 & n.5, 100 S. Ct., st 2552 & n.5; Rakas,

supra, 439 U.S., at 136, 99 S. Ct., at 426; Elkins -V-United States, 364 U.S.

206, 4 L.Ed. 2d 1669, 80 S. Ct. 1437 ( 1960 ).

-12-

Taken together*, the foregoing legal precedents mandates that Petitioner's

question presented for review as well as its supporting argument be found in full

context wholly meritless under the prevelant Fourth Amendment calculus on stand-

-ing to challenge the herein lewless snd unconstitutional intrusion on the const~-

-itutionally protected privacy interest of the Respondents Simpson. Moreover,

considering all the circumstances in light of the standard set forth in Elkins,

it is clearly unreasonable and inconsistent with Fourth Amendment Jurisprudence

for the Petitioner to yet be prusuing prosecution of this matter, after receiv-

-ing adverse decision, and becoming facts, showing that the evidence discoverec

was obtained by state officers during e lawless end unreasonable search and seiz-

-ure that was founc to have violated Respondents’ immunity from ie ab

searches and seizures under the Fourth Amendment es a result of Responcent's

timely objection asserted in the courts below. Id.

Further, the Elkins court left no room for doubt that the nerein petition

for writ of certiorari should and must be denied, es a matter of constitutional

lew and es definec by Gambino -V- United States, 275 U.S. 310, 72 L.Ed. 293, 48

S. Ct. 137, 52 ALR 1381.

In Gambino, the Court found that state officers, es herein, hed seized liq-

-vor from the defendants' sutomobile after en unlawful search in which no federal

officers had participated. The liquor was edmitted in evidence against the defen-

-dants in their subsequent federal trial for violation of the National Prohibit-

-ion Act. This Court reversed the judgment of conviction, holding that the ill-

-13-

* Contrary to the record evidence developed st the suppression hearing, Pet-

-ition's Brief at 13, n.6, erroneously states thet Donald Simpson held title to

the vehicle, and Maria Sylvia Simpson claimed ownership interest based on her co-

-mmunity property rights, citing Resp. C.A. Br. 9. Petitioner obviously is pley-

-ing e long shot gamble this court or its staff ~ yd. not carefully and yo ne

examine and read the pertinent records. Respondent Simpson fully hopes

and trusts that Court do ao less in the interest of justice.

~egally seized evidence should have been excluded. Pointing ovt thet there was

"Mo suggestion that the defendants were committing, et the time of the arrest,

search and seizure, any state offense; or that they had done so in the past; or

that the [ state ) troopers believed that they hac, " the Court found that

" [t]he wrongful arrest, search and seizure were made solely on behalf of the

United States. " Id. 275 U.S., at 314, 316; Elkins, supra, 364 U.S., at 211-212.

Finally, the respondents Donald Lake Simpson and Maria Sylvie Simpson also

ask this Honorable Court to dismiss the Government's request for writ of certio-

“rari with prejudice for the following reasons: (i) this Honorable Court lacks

jurisdiction as did the Ninth Circuit Court of Appeals to rule upon the merits

of a case of & District Court where the triel is in progress. The District

Court's pre-trial suppression of evidence order is but pert of the trial process

end is not @ dismissel of the indictment. See, Abney-V- United States, 431 U.S.

651, 52 L. Ed.2d at 658, 97 S. Ct. 2034 [ 7,8}; ( ii ) since appeals of right

have been authorized by congress in criminal cases, 8s in civil cases, there has

been a firm congressional policy against interlocutory or " piecemeal " appeals

end courts have consistently given effect to that policy. Finalty of judgment

has been required as a predicate for federal appellate jurisdiction. DiBella -v-

United States, 369 US 121 ( 1962 ).

The effect of the statute is to disallow appeal from any decision which is

tentative, incomplete or informal. Appeel gives the upper courts e power of re-

-view, not one of intervention. So long es the matter remains open, unfinished

or inconclusive, there may be no intrusion by eppeal. Nor does the statute per-

-mit eppeals, such es the Government's petition, even from fully consummated

Gecisions, where they are but steps towards final judgment in which they will

merge. The purpose is to combine in one review ell stages of the trial proceed-

~ing that effectively may be reviewed and corrected if end when finel judgment

-14-

‘||

results. But this order of the District Court that Petitioner is appealing did

not make any step toward finel disposition of the merits in this case and will

not be mergec in finel judgment as conferred by the statute, and thus, eat this

time, Petitioner should be denied any review until the whole case is adjudicetec

on the trisl level.

As this Court is well awere, DiBella, supre, st 124, Congress requires that

review of nisi prius proceedings eweit their termination by final judgment. Acc-

ord, Cobbledick -V- United States, 309 US 323, 324-326, 84 L. Ed. 783, 60 S. Ct.

540 ( 1940 ); DiBelle, supra, at 126. Cleerly, the order Petitioner appeals from

fails to reach the crierie of falling within the so called " collateral order

exception to the finel-judgment rule first announced in Cohen -V- Beneficial In-

-dustrial loan Corp., 337 U.S. 541, 93 L. Ed. 1528, 69 S.Ct. 1221 ( 1949 ), anc

therefore is not e final decision within the meaning or purpose of 28 U.S.C., §

1291 [ 28 USCS § 1291 ]; Cohen, Supra, at 546, 93 L.Ed. 1528, 69 S. Ct. 1221.

Moreover, Respondents recognize and concedes the validity of 180U.S.C., 8

3731 shall be liberally construed to effectuate its purpose of the United States

timely appeeling the District Court suppression of evidence exene. nonetheless,

maintains and argues that taking ell the foregoing factors into full account,

the true issues remains wholly unaltered by Petitioner's primary argument, thet

is, (i) the record evidence show the Government did nct have [ @ ) reasonable

suspicion thet the respondents were in engaged in any criminal activity et the

time the Government stopped, seized end searched Arciniega end Respondents’ veh-

-icle; and ( ii ) thet Respondents’ legitimate ownership of vehicle and member-

-ship in a joint venture to transport drugs geve respondents as co-conspirators

e legitimate expectation of privacy entitling them with standing to challenge t

investigatory stop of one of the members of the conspirecy, and the subsequent

search of the respondents’ vehicle he was driving; and ( iii ) the District

-15-

> w

, — ’

Court's findings and ultimate order were basically error free and Petitioner

feilec on each judicial level below to show thet they were in fact Cleariy err-

“oneous @s @ metter of law; and thus, these consistent failures should suffice

to end [ the ) Court's herein inquiry for all practical purpose, and the lower

courts’ order should be affirmed as to Respondents herein.

In conclusion, Petitioner's continuing repeated attacks made on the lower

federal courts' proper enforcement of their flagrant violations of the Fourth

Amendment must be rejected. The Fourth Amendment judisprudence announced by the

Gecisions of the Ninth Circuit Court of Appeals are designed in specific purpose

and intent to protect the good guy @s well as tne bad to be left elone in our

homes, Our cars, end wherever we may 90. If the government is not deterred from

illeosl intrusions of privacy Dy excluding whatever evidence is seizec, the Four

“th Amendment will have hardly no meaning or force. Surely an eporecistion for

the history end purpose of our basic Fourth Amendment freedoms 423 eaves éllow

emotione] fear to justify en enviroment where is mo check on tne abuse of the

governments police power. Tne exclusionary rule serves one purnose --- deterren-

-~ce, United States -V- Janis, 428, U.S. 433, 446,96 S.Ct. 3021, 3028, 49 L.Ed.

2d 1046 ( 1976 ); Mapp -V- Ohio, 367 U.S. 643, 656, 81S. Ct. 1684, 1692, 6L.Ed

2d 1081 ( 1961 ), to repeated police misconduct elleged herein.

Justice Clark wrote for the Court in Mapp that the exclusionary rule was

both " logically and constitutionally necessary. " He observed the doctrine was

an essential part of the right to privacy " and was " en essential ingredient

of the right " to be free from unreasonable searches and seizures. Id. He then

concluded, “ to hold otherwise is to grant the richt but in reality to withhold

its privilege. " Id. 367 U.S. 643, at 656, 81S. Ct. 1684, 1692, 6 L. Ed. 20 1081

* . Ed.

( 1961 ). Petitioner attempts to proceed in reckless Gisregard of these legal pr-

tens ee

Ciples. Nonetheless, it is the law, Petitioner's herein expressec disagreement

-16-

is immaterial and clearly beside the point, and this Court is obliged to re-

-quire Government compliance.*United States -V- Chadwick ,433 U.S. 1,97 S.Ct.

2476,53 L.Ed. 2d 538 ( 1977 ).

The record evidence leave no room for doubt that herein respondents had

@ reasonable legitimate expectation of privacy as well as @ possessory interest

in the things seized and the place searched, end therefore had a legitimate

standing to question and stteck an illegal and unreasonable stop and searcn

thet undisputedly contravened the Fourth Amendment. United States -V- Jeffers,

342 U.S. 48,72 S.Ct. 93,96 L.Ed. 59 ( 1951 ); Jones -V- United States, 362 U.S.

257,80 S.Ct. 725,4 L.Ed. 2d 697 ( 1960 ); Rakes -V- Illinois ,439 U.S. 128,399

S.Ct. 421,58 L.Ed. 2d 387 ( 1978 ); United Stetes -V- Salvucci,~488 U.S. 83,92,

100 S.Ct. 2547,2553,65 L.Ed. 2d 619,628 ( 1980 ); Rawlings -V- Kentucky ,448 U.S

98,100 S.Ct. 2556,65, L.Ed. 2d 633 ( 1980 ); United States -V- Quinn, 751 F. 20

980, ( CA 9 1984 ), Cert. Granted, 474 U.S. 900 ( 1985 ), Cert. Dismissed, 475

U.S. 791 ( 198€ ). Tne Petitioner's legal position elso wholly failed to pey

due regerd to this Court's repeated Fourth Amendment jurisprudence tnat the ins

-tant type werrantless search anc seizure involved in this case ere per se pres

-umptivcly unreasonable and such presumption must be jealoursly maintainedo in a

constitutionel framework. See, e.g., Payton -V- New York, 445 U.S. 573, 586,

100 S.Ct. 1371, 1380, 63 L. Ed. 2d 639 ( 1980 ); Coolidge -V- New Hampshire, 403

U.S. 443, 445, 474-475,91 S.Ct. 2022, 2032, 2042, 29 L.Ed. 20 564 ( 1971 )

( footnotes omitted ) ( emphasis added ). This instent case therefore merits

Similar treatment.

In sun, the decisions of tne District Court and the Court of Appeals

fletly rejected petitioner's Fourth Amendment challenge asserted to the issue

of “ coconspirotor standing exeeption " and consistent with the Court's govern-

-ing Fourth Amendment jurisprudence and analysis employed when it has consider-

-ed prior similar challenges, the petitioner's latest challenge should be re-

-jected es well, in the light of United States -V- Quinn, supra; end United

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

-17-

In Chadwick, this Court held invalid s werrentless search of a locked

footlocker lawfully seized as incident to defendant's arrest but which was

not immediately associates with him. A fortiori as in Chadwick, equal administ-

ration of law compels that results herein.

CONCLUSION

Wherefore, based upon the above record evidence and authorities, The Petit-

-ion for writ of certiorari should be denied accordingly.

Respectfully submitted and dated this the ‘

Der 1992.

dey of

DONALD LAKE SIMPSON, RESPONDENT-

Reg. No#. 01766-196

U.S. Bureau of Prisons

Post Office Box 33

Terre Haute, Indiane--- 47808

CERTIFICATE OF SERVICE

Tne undersigned nereby certifies thet a true and correct copy of the fore-

“g0in> Opposition to petitioner's p2tition for writ of certioreri has been mailed,

first class, posteo? pre-paid, to the following named partics:

Kenneth W. Starr David A. Kern

Solicitor General Assistant U.S. Attorney

Department of Justice 3rd Floor Acapulco Building

Washington, D.C. 20530 110 South Church

Walter B. Nash, III Steven Dichter, Esq.,

P.0. Box 2310 340 E. Palm Lane

Tucson, Arizona 85701 fai, Ge Gee

Michael J. Williem Walker, Esq.,

P.O. Box 3017

Tucson, Arizona 85702

Micheel Bloom, Esq.,

100 North Stone, #701

Tucson, Arizona 85701

RECEIVED

HAND DELIVERED

ocr 2 6 182

OFFICE OF THE CLERK

_— COURT, U.S.

IN THE SUPREME COURT OF THE UNITED ST

OCTOBER TERM, 1992

UNITED STATES OF AMERICA, PETITIONER

Vv ) NO. 92-207

)

XAVIER V. PADILLA, ET AL.

It is hereby certified that all parties required to be served

have been served copies of the REPLY BRIEF FOR THE UNITED STATES by

mail on October 26, 1992.

SEE ATTACHED SERVICE LIST

Solicitor General

October 26, 1992

WALTER B. NASH, III

NASH & AYERS, P.C.

110 S. CHURCH AVENUE

P.O. BOX 2310

TUCSON, AZ 85702

MICHAEL BLOOM

100 N. STONE AVENUE

SUITE 701

TUCSON, AZ 85701

STEPHEN DICHTER

340 E. PALM LANE, #275

PHOENIX, AZ 85004

MICHAEL BRADY

916 TRANSAMERTCA BLDG.

177 N. CHURCH AVENUE

TUCSON, AZ 85701

WILLIAM WALKER

STOMPOLY & EVEN

MAGDALENA BUILDING

110 S. CHURCH AVENUE

SUITE 370

TUCSON, AZ 85701

DONALD LAKE SIMPSON

REG. NO# 01766-196

U.S. BUREAU OF PRISONS

P.O. OFFICE BOX 33

TERRE HAUTE, IN 47808

MICHAEL PICCARRETA

DAVIS, SIEGEL & GUGINO, P.C.

2370 E. BROADWAY BLVD.

SUITE 250

TUCSON, AZ 85716

RECEIVED

HAND DELIVERED

Or” 2 6 1852

OFFICE OF THE CLERK

SUPREME COUT, U.S.

IM THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

UNITED STATES OF AMERICA, PETITION

)

Vv. ) NO: 92-207

)

XAVIER V. PADILLA, ET AL. )

)

Walter B. Nash III, a member of the United States

Supreme Court Bar, and counsel of record for the

Respondents, having filed a brief in opposition of the

Petition for Writ of Certiorari filed by the United States

of America in the case of

, Case number 92-207, hereby avows that three

copies of the brief was served upon the followi counsel

for Petitioner by first class mail on October ‘Ee. 1992.

William C. Bryson

Deputy Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 514-2217

WALTER B. NASH III

P.O. Box 2310

Tucson, AZ 85701

(602) 792-1613

Counsel of Record for

Respondents RECEIVER

OCT 19 ipga

OFFICE OF THs |

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

UNITED STATES OF AMERICA, PETITION

Vv. NO: 92-207

XAVIER V. PADILLA, ET AL.

Walter B. Nash III, a member of the United States

Supreme Court Bar, and counsel of record for the

Respondents, having filed a brief in opposition of the

Petition for Writ of Certiorari filed by the United States

of America in the case of

Vv. Padilla, case number 92-207, hereby avows that three

copies of the brief was served upon the following counsel

for Petitioner by first class mail on October 2, 1992.

William C. Bryson

Deputy Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 514-2217

RE WALTER B. NASH III

CEIVED P.O. Box 2310

- Tucson, AZ 85701

OCT - 5 1992 (602) 792-1613

OFFICE OF ry Counsel of Record for

SUPREME cour et Respondents

———

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