Opposition Brief — United States v. Padilla

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Rupreme Court, U.S,

FiLED

| OCTS 1992

| OPRIOF 82 THE CLERK

—_—-

No. 92-207

In The

Supreme Court of the United states

October Term, 1992

-¢

United States of America,

Petitioner,

Vv.

Xavier V. Padilla, et al.,

Respondents,

— °

On Petition For Writ Of Certiorari

To The United States Court of Appeals

For The Ninth Circuit

Walter B. Nash, III

P. O. Box 2310

Tucson, Arizona 85701

Attorney for Xavier V. Padilla

Attorney of Record

TBEST AVAILABLE COPY

No. 92-207

In The

Supreme Court of the United states

October Term, 1992

United States of America,

Petitioner,

Vv.

Xavier V. Padilla, et al.,

Respondents,

On Petition For Writ Of Certiorari

To The United States Court of Appeals

For The Ninth Circuit

Walter B. Nash, III

P. O. Box 2310

Tucson, Arizona 85701

Attorney for Xavier V. Padilla

Attorney of Record

QUESTION PRESENTED

a. Whether the Ninth Circuit Court

of Appeals properly follows the mandates

of this Court in determining whether an

individual possesses a reasonable

expectation of privacy under the Fourth

Amendment.

TABLE OF CONTENTS

QUESTION PRESENTED

TABLE OF AUTHORITIES

STATEMENT OF THE CASE

BACKGROUND

FACTUAL STATEMENT

Maria Simpson

Donald Simpson

Xavier Padilla

REASONS FOR DENIAL OF THE PETITION

II.

INTRODUCTION

NINTH CIRCUIT DECISIONS

ARE CONSISTENT WITH THE

RULINGS OF THIS COURT AND

THE OTHER COURTS OF

APPEALS ..+ ++ 2+ «+ « »

A. THE NINTH CIRCUIT

HAS REFUSED TO FIND

A LEGITIMATE

EXPECTATION OF

PRIVACY FOR PARTIES

WHO WERE MERELY

COCONSPTRATORS OR

“JOINT VENTURERS"”

B. THE NINTH CIRCUIT

DECISIONS CITED BY

PETITIONER WERE

Page

III.

IV.

CONCLUSION

iii

PROPERLY DECIDED AND

DO NOT CALL FOR

REVIEW BY THIS

COURT . ° « e

c. THE OTHER CIRCUITS

HAVE DECIDED “JOINT

VENTURE" CASES

CONSISTENTLY WITH

THE OPINIONS OF THE

NINTH CIRCUIT ...

D. THE CASES CITED BY

PETITIONER FROM

OTHER CIRCUITS WOULD

HAVE BEEN DECIDED NO

DIFFERENTLY BY THE

NINTH CIRCUIT

THE COURT OF APPEALS

CORRECTLY DECIDED THE

CASE AT BAR . . . «© 2 « «

THIS CASE PRESENTS A POOR

VEHICLE FOR REVIEW OF

DECISIONS BY THE NINTH

CIRCUIT CONCERNING THE

RIGHT TO OBJECT UNDER THE

FOURTH AMENDMENT ... .

TABLE OF AUTHORITIES

Page

Cases:

Mancusi v. DeForte,

392 U.S. 364, 368-369 (1968) .. 13, 20

Minnesota v. Olson,

495 U.S. 91, 98-99 (1990) ......- 13

Rakas v. Illinois,

439 U.S. 128, 148 (1978) seees ese oe

Rawlings v. Kentucky,

448 U.S. 98, 105 (1980) ..... +. +. 13

United States v. (George) Johns,

851 F.2d 1131, 1136 (9th Cir. 1988) . 19

United States v. (Lyle) Johns,

707 F.2d 1093 (9th Cir. 1983), reversed

on other grounds, 469 U.S. 478 (1985)

United States v. Aikins,

946 F.2d 608, 613 (9th Cir. 1990) .. 17

United States v. Alderman,

394 U.S. 165, 176 (1969) > eee ee SS

United States v. Allison,

619 F.2d 1254, 1256 (8th Cir. 1980) . 27

United States v. Broadhurst,

805 F.2d 849, 850 (9th Cir. 1986) .. 19

United States v. Brown,

743 F.2@ 1505, 1507-1508 (11th Cir.

1984) * al ll al * . * * . . * * * al * * 33

United States v. Culbert,

595 F.2d 481, 482 (9th Cir. 1979) . 16,

United States v. DeLeon,

641 F.2d 330, 337 (Sth Cir. 1981) .. 34

United States v. Dotson,

817 F.2d 1127, 1134 (5th Cir. 1987) . 27

United States v. Eldridge,

302 F.2d 463, 464 (4th Cir. 1962) .. 29

United States v. Freire,

710 F.2d 1515, 1519 (llith Cir. 1983) 27

United States v. Galante,

547 F.2d 733, 737 (2d Cir. 1976) —

United States v. Grandstaff,

813 F.2d 1353, 1357 (9th Cir. 1987) . 16

United States v. Haili,

443 F.2d 1295 (9th Cir. 1971) .... 16

United States v. Kiser,

948 F.2d 418 (8th Cir. 1991),

cert. denied, 112 S.Ct. 1666 (1992) . 30

United States v. Kovac,

795 F.2d 1509, 1511 (9th Cir. 1986) . 16

United States v. Kuespert,

773 F.2d 1066, 1068 (9th Cir. 1985) . 17

United States v. Kye Soo Lee,

898 F.2d 1034, 1035 (5th Cir. 1990) . 25

United States v. Lisk,

522 F.2d 228, 229 (7th Cir. 1975)

(Stevens, J.), cert. denied, 423 U.S.

1078 (1976) . . . * . * > * . . . * . 35

United States v. Lockett,

919 F.2d 585, 588 (9th Cir. 1990) .. 17

United States v. Lonabaugh,

494 F.2d 1257, 1259 (Sth Cir. 1973) . 28

United States v. Manbeck,

744 F.2d 360, 373-374 (4th Cir. 1984),

cert. denied, 469 U.S. 1217 (1985) . 32

United States v. Medina-Verdugo,

637 F.2d 649, 651 (9th Cir. 1980)

(Kennedy, J.) “a. a a 16

United States v. Mendia,

731 F.2d 1412, 1414 (9th Cir. 1984) 17,

United States v. Most,

876 F.2d 191, 192 (D.C. Cir. 1989) . 26

United States v. Mulligan,

448 F.2d 732 (9th Cir. 1973) — oa a

United States v. Padilla,

960 F.2d 854, 858 (9th Cir. 1992) .. 3

United States v. Perez,

689 F.2d 1336 (9th Cir. 1982)... -. 23

United States v. Pollock,

726 F.2d 1456 (9th Cir. 1984) .... 21

United States v. Portillo,

633 F.2d 1313, 1317 (9th Cir. 1980) . 16

United States v. Quinn,

751 F.2d 980, 981 (9th Cir. 1984),

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

vii

cert. denied, 475 U.

(1986) . . . rico 20 39

United States v. Soule,

908 F.2d 1032, 1036 (lst Cir. 1990) 34

United States v. Taketa,

923 F.2d 665, 672 (9th Cir. 1991) 16,

United States v. Toliver

433 F.2d 867, 869 (9th cir. 1970) 22

United States v. Turner,

528 F.2d 143, 164 (9th Cir.),

cert. denied, 423 U.S. 996 (1975) 22

United States v. Jacobsen,

466 U.S. 109, 114 (1984) 12, 13, 23, 38

United States Code:

21 U.S.C. §841(a) (1) 2

21 U.S.C. §846 .., . 2

United States Constitution:

punaC Sueneness - &, 2, 3, 8, 10, ll,

» 17-19, 24, 26, 31, 32, 34, 38,

\ 39, 41, 42

No. 92-207

In The

Supreme Court of the United States

October Term, 1992

- 4

United States of America,

Petitioner,

Vv.

Xavier V. Padilla, et al.,

Respondents,

On Petition For Writ Of Certiorari

To The United States Court of Appeals

For The Ninth Circuit

RESPONSE TO PETITION FOR

WRIT OF CERTIORARI

Respondents respectfully pray that

the Petition for Writ of Certiorari to

review the judgment of the United States

Court of Appeals for the Ninth Circuit,

filed April 1, 1992 be denied.

STATEMENT OF THE CASE

I. BACKGROUND

The six Respondents - Maria Sylvia

Simpson, Donald Lake Simpson, Xavier V.

Padilla, Maria Jesus Padilla, Jorge

Padilla, and Warren Strubbe - were

charged in a single indictment alleging

that they conspired to possess cocaine

with the intent to distribute (21 U.S.c.

§846) and that they actually committed

that offense. (21 U.S.C. §841(a)(1)).

These charges emanated from the seizure

of cocaine from the trunk of a car owned

by Donald and Maria Simpson (husband and

wife). At the time of the seizure, the

Simpson’s car was being driven. by

coconspirator Luis Arciniega.

The District Court held that the

seizure and search of the Simpsons’ car

violated the Fourth Amendment. The court

suppressed the evidence as to all six

Respondents. The government appealed.

On appeal, the government conceded

that the challenged seizure and search

violated the Fourth Amendment, but argued

that none of the Respondents had a

legitimate expectation of privacy and

therefore had no ability to challenge the

illegal seizure and_ search. United

States v. Padilla, 960 F.2d 854, 858 (9th

Cir. 1992). The Ninth Circuit Court of

Appeals affirmed the suppression order as

to Respondents Maria Simpson, Donald

Simpson and Xavier Padilla. Because the

record was’ insufficient to make a

determination of whether Maria Jesus

Padilla and Jorge Padilla had a

legitimate expectation of privacy in the

car, the court remanded the case to the

district court for further evidentiary

hearings on that issue. The court of

appeals held that Warren Strubbe lacked

any reasonable expectation of privacy in

the car. The court therefore reversed

the suppression order as to Strubbe. Id.

at 863-864.

II. FACTUAL STATEMENT

Virtually all of the evidence

against Respondents was obtained as the

result of the seizure and search of an

automobile owned by Maria Simpson and

Donald Simpson, but driven by

coconspirator Luis Arciniega. Id. at

862. The illegal seizure occurred on

September 26, 1989, on Interstate Highway

10 between Tucson and Phoenix, Arizona.

A state highway patrol officer stopped

the Simpsons’ automobile despite the fact

that the driver committed no traffic

violation. Id. at 856. A subsequent

search of the trunk revealed packages

labeled "pollo", the Spanish word for

"chicken". The packages were opened,

revealing cocaine. 5/8/90 Tr. 120;

5/15/90 Tr. 95-96, 103-104.

The government conceded in the Ninth

Circuit, and concedes here, that the stop

of the Simpsons’ car violated the Fourth

Amendment. The unrefuted evidence

presented in the district court,

consisting of documents and avowals from

defense counsel, established that the

Simpsons and Xavier Padilla were engaged

in a sophisticated and coordinated

venture to transport the contraband from

Mexico, through the State of Arizona and

into the State of California.) 960 F.2d

at 860. The undisputed evidence provides

IMaria Jesus Padilla and Jorge

Padilla were also involved in this

effort, although - as the Ninth Circuit

found - the record is insufficient to

allow a determination of their role.

Warren Strubbe was initially involved in

the venture, but his role ended prior to

the challenged seizure. 960 F.2d at 861-

862.

a complete, chronological illustration of

the facts which demonstrate that the

Simpsons and Xavier Padilla possessed a

legitimate expectation of privacy under

the pertinent decisions of this Court.

A. Maria Simpson

Maria Simpson and her _ husband,

Respondent Donald Simpson, co-owned the

automobile that was illegally stopped by

an Arizona highway patrolman on the

afternoon of September 26, 1989. The

cocaine that was seized from the trunk of

that vehicle had - for purposes of this

case - originally came from Mexico and

was being transported at the request of

its owner. Mrs. Simpson met with the

owner in Mexico shortly before the load

of cocaine in question was transported

into the United States. In that meeting,

Mrs. Simpson complained that she had not

been paid for the previous three loads of

cocaine that she had driven into the

United States. The owner promised to pay

her after the next load was transported.

Mrs. Simpson accepted this proposal. Id.

at 860 n.4.

The contraband at issue was put in

the Simpson’s car in Mexico on the same

day that it was seized. After Ms.

Simpson drove it into the United States,

she turned her car over to Luis

Arciniega, but remained involved in a

continuous chain of activity with the

vehicle. The car was to be returned to

the Simpsons after the delivery was

completed. Mrs. Simpson and her husband

were then to be paid for their role in

the smuggling/transportation venture.

Id. at 860; 5/30/90 Tr. 73-77, 111-118.

B. Donald Simpson

Donald Simpson was the co-owner of

the automobile in question. Immediately

after the illegal traffic stop, but prior

to the search of the trunk, the driver,

Arciniega, showed the highway patrol

officer the insurance certificate which

named Mr. Simpson as the owner of the

car. 960 F.2d at 856; 5/8/90 Tr. 169-

171. Like his wife, Mr. Simpson was to

receive payment after the load of cocaine

at issue was delivered. The car was also

to be returned to him.

In addition, Mr. Simpson was a

United States Customs agent and was

therefore able to protect the privacy of

the contraband in the trunk of his car

when it crossed into this country.

Telephone records also revealed that Mr.

Simpson coordinated and supervised

efforts to maintain secrecy as to the

illegal cargo. 960 F.2d at 860.

C. Xavier Padilla

Xavier Padilla met with the owner of

the contraband to plan and control its

transportation from Mexico’ through

Arizona to its destination in California.

Mr. Padilla was ultimately responsible

for the load, including on the very day

of the stop. Although a resident of

Douglas, Arizona, the border town where

the car crossed into the United States,

Mr. Padilla traveled "virtually along

with" the car once it entered this

country, and gave directions as to its

travel. 960 F.2d at 860; 5/8/90 Tr. 71;

5/30/90 Tr. 69-73, 106-111.

After the Simpson vehicle was

illegally stopped and searched by police

officers, Arciniega agreed to make a

“controlled delivery” of the car in

Tempe, Arizona, a suburb of Phoenix.

Upon arriving in Tempe, Arciniega placed

telephone calls to the Tempe residence of

Xavier Padilla’s sister. Arciniega spoke

to Mr. Padilla, who was to be called if

there were any questions or problems

concerning the load. Mr. Padilla sent

his wife and brother (Respondents Maria

Jesus Padilla and Jorge Padilla) to pick

up the Simpsons’ car and the contraband.

Maria Jesus Padilla and Jorge Padilla

arrived in a car that had been rented by

Xavier Padilla; he was found at his

sister’s home a short distance away. 960

F.2d at 856-857.

REASONS FOR DENIAL OF THE PETITION

I. INTRODUCTION

Petitioner alleges that the Ninth

Circuit Court of Appeals has turned its

back to the rulings of this Court

concerning the right to object to

searches and seizures under the Fourth

Amendment in conspiracy cases. Contrary

to Petitioner’s allegations, the judges

of the Ninth Circuit have not “sought to

evade"* the dictates of this Court’s

opinions, nor have the judges issued

rulings which “conflict with the law of

every other circuit uw

Petitioner’s argument is based on a

fundamental misinterpretation of Ninth

Circuit decisions. The Ninth Circuit has

not - as Petitioner claims - aranted

individual defendants the right to object

to searches and seizures based upon their

supervision or control of a conspiracy;

the Ninth Circuit has granted individuals

the right to object based upon their

right of supervision or control over

property that may arise from a

conspiracy. To permit Fourth Amendment

challenges simply based upon a person’s

2Petition for Writ of Certiorari, at

3rd. at 14.

‘dil

—s

role in a conspiracy would, as the court

of appeals recognized in the case at bar,

be "in clear contravention of holdings of

the Supreme Court and this circuit."

[Insert citation] The Ninth

Circuit has recognized that each case

must be decided based on the pertinent

evidence as to each individual

defendant’, not by their “role” in a

conspiracy. The court has_ further

recognized that an express or implied

agreement with others may grant or

protect an individual’s right of privacy

in a particular place or property.®

‘Petitioner’s claim, at 10, that the

Ninth Circuit has "manufactured a

complex, fact-intensive theory" is

groundless. Rights of privacy always

have been - and by their very nature must

be - decided based on the facts of each

case.

°such as when a person entrusts

another to deliver a package (United

States v. Jacobsen, 466 U.S. 109, 114

(1984)), is an overnight guest in

This right of privacy may exist or endure

even when the individual is not present®

or is not able to exclude others. To

determine whether a legitimate

expectation of privacy exists, courts

must look to precautions taken to

maintain privacy. Rawlings v. Kentucky,

448 U.S. 98, 105 (1980).’

another’s home (Minnesota v. Olson, 495

U.S. 91, 98-99 (1990)) or shares a work

place. Mancusi v. DeForte, 392 U.S. 364,

368-369 (1968).

S6united States v. Jacobsen, 466 U.S.

at 114; United States v. Alderman, 394

U.S. 165, 176 (1969). Under some

circumstances, an individual may be

present at the location searched, but

still lack a legitimate expectation of

privacy. Rawlings v. Kentucky, 448 U.S.

98, 105 (1980); Rakas v. Illinois, 439

U.S. 128, 148 (1978).

7petitioner’s claim, at 9, that the

Ninth Circuit’s finding that Xavier

Padilla had a right to object to the

seizure in this case violated the

dictates of Rawlings v. Kentucky is

baseless. Rawlings involved a gratuitous

bailment which arose when the defendant

dumped his drugs into an acquaintance’s

purse as the police arrived. 448 U.S. at

As the following analysis

demonstrates, the Ninth Circuit’s

decisions stand for propositions which

flow directly from this Court’s rulings.

The Ninth Circuit’s decisions are also

consistent with decisions of the other

eleven circuits. There is no reason to

grant certiorari; this Court’s precedents

governing the right to object’ to

governmental searches and seizures are

clear and have been properly followed.

II. NINTH CIRCUIT DECISIONS ARE

CONSISTENT WITH THE RULINGS OF THIS

COURT AND THE OTHER COURTS OF

APPEALS

A. THE NINTH CIRCUIT HAS REFUSED

TO FIND A LEGITIMATE

EXPECTATION OF PRIVACY FOR

PARTIES WHO WERE MERELY

COCONSPIRATORS OR "JOINT

101-102. In the present case, Xavier

Padilla took careful measures to ensure

that no intrusion would be made into the

locked trunk of the car, including

planning the car’s travel and virtually

oe along with the car on its

route.

VENTURERS"®

Petitioner alleges that the judges

of the Ninth Circuit have conspired to

disregard the Fourth Amendment decisions

issued by this Court. This allegation is

groundless, as the court of appeals

demonstrated in this very case. The

Ninth Circuit did not find that three of

the coconspirator/joint venturers had a

legitimate expectation of privacy; if

there were indeed such a blanket rule,

all Respondents would have the right to

object. 960 F.2d at 863-864.

The court of appeals has never held

that a defendant’s status as a

coconspirator, in itself, supports the

Scontrary to Petitioner’s

assertions, the term "joint venturer" is

not a term descriptive of the court of

appeals’ refusal to follow this Court’s

decisions, but is simply a term of

convenience that the Ninth Circuit has

used to depict persons working together

toward the commission of a crime.

right to challenge unlawful searches or

seizures. See, United States v. Taketa,

923 F.2d 665, 672 (9th Cir. 1991); United

States v. Culbert, 595 F.2d 481, 482 (9th

Cir. 1979); United States v. Mulligan,

448 F.2d 732 (9th Cir. 1973); United

States v. Haili, 443 F.2d 1295 (9th Cir.

1971). The Ninth Circuit has ruled,

where appropriate, that even a defendant

who is present during the search of a

confederate may lack the right to contest

the admissibility of evidence seized.

United States v. Grandstaff, 813 F.2d

1353, 1357 (9th Cir. 1987); United States

v. Kovac, 795 F.2d 1509, 1511 (9th Cir.

1986); United States v. Medina-Verdugo,

637 F.2d 649, 651 (9th Cir.

1980) (Kennedy, J.); United States v.

Portillo, 633 F.2d 1313, 1317 (9th Cir.

1980). The court has reached this

conclusion even in cases in which the

defendants have been charged with the

possession of the contraband seized from

their confederates. United States v.

Aikins, 946 F.2d 608, 613 (9th Cir.

1990); United States v. Lockett, 919 F.2d

585, 588 (9th Cir. 1990); United States

v. Kuespert, 773 F.2d 1066, 1068 (9th

Cir. 1985); United States v. Mendia, 731

F.2d 1412, 1414 (9th Cir. 1984).

The court of appeals has

consistently followed this Court’s

mandates regarding expectations of

privacy for purposes of the Fourth

Amendment. For example, in United States

v. Taketa, 923 F.2d at 668-669, 672, the

court held that Taketa had no legitimate

expectation of privacy in his

codéfendant’s office despite the fact

that Taketa had an office in the same

suite and had free access to the

codefendant’s office where the crime was

committed. In reaching this conclusion,

the court stated:

To hold that these

conspirators all have a

legitimate interest in privacy

in { codefendant } O’Brien’s

office would establish the

Ninth Circuit’s "coconspirator

exception" as a true

coconspirator exception of

general applicability to any

person accused of criminal

conspiracy. Such a blanket

exception to Rakas [v.

Illinois, 429 U.S. 128 (1978), ]}

would contravene holdings of

the Supreme Court and this

Circuit.

Id. at 672.9

B. THE NINTH CIRCUIT DECISIONS

CITED BY PETITIONER WERE

PROPERLY DECIDED AND DO NOT

CALL FOR REVIEW BY THIS COURT

When the Ninth Circuit has addressed

questions concerning expectations of

privacy in conspiracy or "joint venture"

*petitioner’s intimation, at pages 8

and 10 of the petition, that Taketa

recognized the existence of a

“coconspirator exception" to this Court’s

Fourth Amendment rulings is therefore

misleading.

cases, it has separately analyzed the

evidence relating to each party to

determine whether that individual’s

Fourth Amendment interests were affected.

The cases relied on by Petitioner, at 8,

do not support its position.

1. In United States v. (George)

Johns, 851 F.2d 1131, 1136 (9th Cir.

1988), the court held that the defendant

had the right to object to the search of

a rental storage unit which was in the

codefendant’s name. The court properly

reached this conclusion because the

defendant established that he paid part

of the rental fee and co-owned the

property inside the unit.

2 In United States v. Broadhurst,

805 F.2d 849, 850 (9th Cir. 1986), the

court analyzed the individual privacy

interests of six defendants in a remote

residence which housed a - marijuana

growing business. Each defendant was

found to have standing because he or she

lived on the premises, worked on the

premises or owned the premises. Id. at

851-852. This decision conforms to the

well established proposition that owners

and employees may possess a legitimate

expectation of privacy in their work

place. See, e.g., Mancusi v. DeForte,

392 U.S. 364, 368-369 (1968). The fact

that the search revealed that’ the

business was illicit cannot, of course,

defeat the owners’ and employees’ right

to object to the search. See Petition

for Writ of Certiorari at 12 n. 5.

5. United States v. Quinn, 751

F.2d 980, 981 (9th Cir. 1984), cert.

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

denied, 475 U.S. 791 (1986), raised the

question of the right to object to the

search of a boat. The Ninth Circuit held

that, although Quinn was not on the boat

at the time of the search, he had a

legitimate expectation of privacy because

he owned the boat and the contraband on

it, the search occurred immediately after

he left the boat, and he took extensive

precautions to. protect his_ privacy

interests in the boat.

4. In United States v. Pollock, —

726 F.2d 1456 (9th Cir. 1984), the

defendant was found to have a reasonable

expectation of privacy in the house where

an illicit drug laboratory was found.

Although Pollock did not own or live on

the property, he moved the laboratory

into the house with the owner’s

permission, took steps to maintain

privacy, worked in the laboratory, and

was present when the search occurred.

Id. at 1465.

5. In United States v. (Lyle)

Johns, 707 F.2d 1093 (9th Cir. 1983),

reversed on other grounds, 469 U.S. 478

(1985), two pilot/defendants turned

packages containing marijuana over to

their coconspirator/employees for

delivery. The pilot/defendants presented

evidence that the marijuana belonged to

them and that the coconspirator/employees

would not be paid until the packages were

delivered. The court concluded that the

pilot/defendants had the right to object

to the search of the packages due to

their retained interest in them.?° Id.

at 1099-1100. This case comports with

10phe Ninth Circuit has held that

conspirators retain no legitimate

expectation of privacy when~ they

demonstrate no continuing interest after

turning contraband over to _ another.

United States v. Mendia, 731 F.2d at

1414; United States v. Culbert, 595 F.2d

at 482; United States v. Turner, 528 F.2d

143, 164 (9th Cir.), cert. denied, 423

U.S. 996 (1975); United States v.

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

1970).

the settled principle that the owner of a

package maintains a legitimate

expectation of privacy in a package in

transit. United States v. Jacobsen, 466

U.S. at 314.

6. Finally, in United States v.

Perez, 689 F.2d 1336 (9th Cir. 1982), the

defendants hired a driver and truck to

transport their contraband, took steps to

ensure the privacy of the contraband, and

traveled with the truck. Under these

circumstances, the court of appeals held

that the defendants possessed a

legitimate expectation of privacy in the

contraband hidden in the truck.

Petitioner cannot direct this Court

to any case - for none exist - in which

the Ninth Circuit has found a party’s

status as a coconspirator to support a

legitimate expectation of privacy in a

place searched or an item seized. The

Ninth Circuit has found expectations of

privacy in a joint venturer only when

that individual presented evidence

demonstrating control over the place

searched or the property seized.*}

c. THE OTHER CIRCUITS HAVE DECIDED

“JOINT VENTURE" CASES

CONSISTENTLY WITH THE OPINIONS

OF THE NINTH CIRCUIT

The courts of appeals of the other

eleven circuits have been called upon to

decide cases which raise expectation of

privacy issues for coconspirators or for

lipetitioner also complains, at 11

n.3, that the Ninth Circuit’s decisions

serve to free minor defendants while

permitting the worst offenders to go

free. This is simply untrue. The court

of appeals has consistently focused on

the issue of privacy interests; in some

cases this may be a mere courier, while

in others it will be a kingpin. In any

case, the Fourth Amendment is designed to

protect the members of a free society

from arbitrary intrusions by government,

not to determine the appropriate

punishment of various players in a

criminal conspiracy.

persons who rely on others to protect

their belongings. In those cases, the

courts have reached conclusions that are

consistent with the decisions of the

Ninth Circuit.

1. In United States v. Kye Soo

Lee, 898 F.2d 1034, 1035 (5th Cir. 1990),

two defendants were stopped while driving

a rental truck in _ Louisiana. The

defendant who actually rented the truck

was in New York at the time. The court

held that all three defendants

demonstrated a legitimate expectation of

privacy in the truck and its contents.

Id. at 1038.

a. The defendants in the

truck denied renting the truck, owning

the contents, or being able to unlock the

— &

cargo area of the truck./* The court

held that the defendants could object

under the Fourth Amendment because the

renter of the truck and owner of the

cargo entrusted them with the property.

b. The defendant who was

thousands of miles away at the time of

the stop and search had the right to

object because he rented the truck, owned

the contents, and locked the cargo area,

giving keys only to the other defendants.

2. In United States v. Most, 876

F.2d 191, 192 (D.C. Cir. 1989), the

defendant left a plastic bag with a store

clerk, with the understanding that he

would return for it later. The court

held that he retained a legitimate

12shortly after the stop, however,

the investigating officer found that

these defendants did have a key that

would open the lock on the cargo area.

Id. at 1036.

expectation of privacy in the bag. Id.

at 198.

3. In United States v. Dotson, 817

F.2d 1127, 1134 (5th Cir. 1987), the

defendant challenged the search of his

car which he had loaned to a codefendant.

The court found that the defendant had

not forfeited his expectation of privacy

in the car!? because the loan was for a

limited period of time. Id. at 1135.

4. In United States v. Freire, 710

F.2d 1515, 1519 (llth Cir. 1983), the

defendant successfully argued that he

held a legitimate expectation of privacy

in a briefcase despite the fact that he

turned it over to a codefendant eight

hours before the challenged search.

5. In United States v. Allison,

13The court reached this conclusion

despite the fact that the title to the

car was not in the defendant’s name.

619 F.2d 1254, 1256 (8th Cir. 1980), the

defendants were labor union officials who

were under investigation for embezzling

union” funds. Defendants Allison and

Greer, both of whom worked at the union

office, successfully argued that they had

a reasonable expectation of privacy in

records that were kept in aie union

storeroom. Id. at 1260.

6. In United States v. Lonabaugh,

494 F.2d 1257, 1259 (5th Cir. 1973),

acting on an informant’s tip, police

officers watched the defendant and a

companion enter an airport with two

suitcases. The defendant purchased an

airline ticket and checked the luggage.

He gave the ticket and claim checks to

his companion. When confronted by

authorities, the defendant admitted that

the luggage belonged to him. Despite the

fact that the defendant gave up custody

and control, the court held that he

maintained a legitimate expectation of

privacy in the luggage. Id. at 1262.

Fa In United States v. Eldridge,

302 F.2d 463, 464 (4th Cir. 1962), the

court held that the defendant did not

give up his right to object to a search

of his car trunk despite the fact that he

had loaned the car - and the trunk key -

to a friend who had the car at the time

of the search.

Under any name, and in any circuit,

individuals can establish a _ reasonable

expectation of privacy, not only as a

result of their personal efforts, but

also by enlisting the assistance of

others.

D. THE CASES CITED BY PETITIONER

FROM OTHER CIRCUITS WOULD HAVE

BEEN DECIDED NO DIFFERENTLY BY

THE NINTH CIRCUIT

Petitioner has obviously conducted

extensive research in an effort to locate

federal decisions that will convince this

Court that those decisions would have

been decided differently under the Ninth

Circuit’s supposed "joint venture" rule.

While some inconsistencies are to be

expected in the application of any fact-

based doctrine, Petitioner’s effort fails

as to each case. None of the cases cited

in the petition, at 14-16, involved facts

such as those presented here. None of

those cases involved defendants who owned

the place searched, had a proprietary

interest in the property seized, or

engaged in continuous efforts to protect

the property from intrusions by

government officials.

FE In United States v. Kiser, 948

F.2d 418 (8th Cir. 1991), cert. denied,

112 S.ct. 1666 (1992), the defendant

sought to challenge the search of an

employee’s' car. The employee was

transporting the defendant’s cocaine in

Florida while the defendant was in Iowa.

Id. at 421, 423. There is no indication

in the opinion that the defendant gave

his courier any directions regarding

travel, maintained contact with him, or

even knew his_ location. The court

correctly concluded that the defendant

had no legitimate expectation of privacy

in the employee’s car. Id. at 424.

The Kiser opinion does’ contain

excessively broad language indicating

that an employer cannot assert a Fourth

Amendment privacy right through = an

employee’s acts. Id. This cannot be

true. Certainly, an attorney’s absence

does not defeat a legitimate expectation

of privacy in his or her office when the

office is occupied by a secretary or

paralegal. Kiser also stated, in dicta,

that it would not follow the Ninth

Circuit’s “joint venture/co-conspirator

exception to the standing rules announced

by the Supreme Court." Id. As is

demonstrated in section II(B), above, the

Ninth Circuit has followed the dictates

of this Court in applying the Fourth

Amendment to the cases before it.

3. In United States v. Manbeck,

744 F.2d 360, 373-374 (4th Cir. 1984),

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

court held that defendants who were not

present at the time that trucks

containing contraband were searched could

not assert a sufficient privacy interest

solely by claiming that they would profit

from the sale of the marijuana. The

Ninth Circuit has never held that a

future financial interest from

contraband, without some control over the

property, can provide an expectation ot

privacy under the fourth amendment.

3. The Eleventh Circuit, in United

States v. Brown, 743 F.2d 1505, 1507-1508

(llth Cir. 1984), held that a defendant

could not possess a legitimate privacy

interest in contraband strapped to his

codefendant’s body. In reaching this

conclusion, however, the court

specifically pointed out, "Unlike a

house, a hotel room, an automobile or a

briefcase, one cannot acquire a right to

exclude others from access to a third

person." Id. at 1507. The court clearly

limited its holding to the facts before

it and did not discuss any expectation of

privacy that might be created through an

agreement with a third party in other

circumstances. !4

4Petitioner’s statement, at 15,

that the eleventh circuit “refused to

recognize ‘joint venture standing’" in

Brown is therefore, at best, a gross

4. In United States v. Soule, 908

F.2d 1032, 1036 (ist Cir. 1990), the

court simply and properly held that a

defendant had no right to object to a

search of a truck when he was not

present, had no interest in the truck,

and had no interest in the contents.

5. In United States v. DeLeon, 641

F.2d 330, 337 (5th Cir. 1981), the

defendant, after unsuccessfully arguing

that there was insufficient evidence to

convict, attempted to object to the

admission of contraband seized from a

coconspirator’s car in the defendant’s

absence. !* The opinion reveals’ no

evidence that the defendant was nearby or

overstatement.

1Sthe defendant failed to raise this

issue in the trial court; the court of

appeals therefore only’ reviewed the

Fourth Amendment claim under the plain

error standard. Id. at 337.

attempted to exert any control over the

contraband. The opinion gives’ no

indication that the defendant claimed an

ownership interest in the seized

property.

6. The mere fact that the

defendants stored stolen property in a

particular building - over which they had

no control - did not give them the right

to object to a search of that building.

United States v. Galante, 547 F.2d 733,

737 (2d Cir. 1976).

iP In United States v. Lisk, 522

F.2d 228, 229 (7th Cir. 1975) (Stevens,

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

the defendant asked a friend to keep a

bomb for him until he asked for it back.

The bomb vas placed in the trunk of the

friend’s car. The defendant had no

interest in or control over the friend’s

car, nor did the defendant make any

effort to protect the car from law

enforcement intrusions. The court held

that the defendant did have a right to

object to the seizure of his property

(the bomb), but had no privacy interest

in the car. Id. at 330.

These cases all stand for the simple

proposition that an individual cannot

maintain a legitimate privacy interest in

property when he or she relinquishes

control without taking steps to protect

the property from unwanted scrutiny. The

Ninth Circuit has never held otherwise.

III. THE COURT OF APPEALS CORRECTLY

DECIDED THE CASE AT BAR

Petitioner asserts, at 11, that the

Ninth Circuit decided the present case

with regard to Maria Simpson, Donald

Simpson and Xavier Padilla based upon

"their status as principals in the joint

venture." Petition for Writ of

Certiorari, at 11. In light of the fact

that, as demonstrated above, the court of

appeals has never decided this or any

other case by focusing only on the

defendants’ status as joint venturers,

Petitioner’s argument obviously must

fail. Further, in this particular case,

the three Respondents at issue had far

greater privacy interests than mere

coconspirators.

The petition, at 11 nm. 4, concedes

that the Simpsons owned the car that was

stopped. Petitioner also appears to

concede, at 12, that the Simpsons and

Xavier Padilla held a possessory interest

in the contraband found in the trunk of

the Simpson’s car. Petitioner ignores

the fact that both the Simpsons and

Xavier Padilla were directly involved in

shepherding the car from Mexico to

Arizona, and that Xavier Padilla was in

charge of decisions as to who would drive

the car, what route it would take, when

it would travel, and was to resolve any

problems that arose. This is not a case

in which contraband was simply passed

from one conspirator to another, or sold

from one individual to another. This is

a case in which, through agreement among

the parties, care was taken to protect

the cargo as it traveled through Arizona.

Certainly, there is a far more

substantial basis to find a right of

privacy when cargo is so carefully

protected as here, than in a case in

which an individual sends a package by a

messenger service. Compare United States

v. Jacobsen, 466 U.S. at 114. Unless the

Fourth Amendment protects the privacy of

businesses operated in a coordinated

fashion of this kind, there will be no

protection for any commercial shipping -

legitimate or otherwise - from arbitrary

governmental intrusion.

IV. THIS CASE PRESENTS A POOR VEHICLE

FOR REVIEW OF DECISIONS BY THE NINTH

CIRCUIT CONCERNING THE RIGHT TO

OBJECT UNDER THE FOURTH AMENDMENT

Even should this Court wish to

examine the Ninth Circuit’s treatment of

privacy interests of coconspirators under

the Fourth Amendment, this case is an

inappropriate one due to its facts.

First, Petitioner recognizes, at 16 n. Pp

that this Court previously granted

certiorari in United States v. Quinn, 751

F.2d at 981, but declined to decide the

case because the issue was complicated by

Quinn’s ownership of the boat in

question. The same problem exists here

due to the Simpsons’ ownership of the

car.

Secondly, as the Ninth Circuit panel

recognized, the record is inadequate to

319

permit a reasoned decision as to the

expectation of privacy held by

Respondents Maria Padilla and Jorge

Padilla. Respondent Warren Strubbe’s

claim of a privacy interest was rejected

by that panel.

Finally, and most importantly, the

Ninth Circuit correctly decided the that

Maria Simpson, Donald Simpson and Xavier

Padilla had a legitimate expectation of

privacy in the Simpson’s car and its

cargo under settled principles announced

by this Court. In addition to their

interests in the car and the contraband,

these individuals took measures, similar

to those undertaken by any businessperson

who is shipping valuable property, to

protect the property.

CONCLUSION

The decisions of this Court have set

reasonable standards by which the

protections of the Fourth Amendment can

be enforced. Those standards provide

trial court’s with sufficient guidance,

while remaining sufficiently flexible, to

determine whether a defendant holds a

legitimate expectation of privacy in a

place searched or in property seized.

While some disparity will occur under any

fact-based system of applying the law, no

better alternative exists. Certainly,

this Court would never accept a

suggestion that no person may claim the

protection of the Fourth Amendment by

arranging for their privacy with other

persons or that no such protection exists

unless the property owner is present.

Such a ruling would permit unscrupulous

law officers to search our cars and

ransack our homes and offices whenever we

were absent. The parameters of the

Fourth Amendment do not depend upon

whether one chooses to go out to dinner

or to remain home.

Petitioner asks this Court to grant

certiorari based .»0n the erroneous

belief that the judges of the Ninth

Circuit Court of Appeals are ignoring

clear Fourth Amendment law No such

disobedience from this Court’s rulings

has occurred. The petition for

certiorari must therefore be denied.

Walter B. Nash, III

P. O. Box 2310

Tucson, Arizona 85701

Attorney for Xavier Padilla

Attorney of Record

Natman Schaye

P. O. Box 608

Tucson, Arizona 85702

Associate Attorney for

Xavier Padilla

Michael J. Bloom

100 N. Stone Ave., Ste. /01

Tucson, Arizona 85701

Attorney for Maria Padilla

Steven Dichter

340 E. Palm Lane, Ste. 275

Phoenix, Arizona 85004

Attorney for Jorge Padilla

Michael Piccaretta

2730 E. Broadway, Ste. 250

Tucson, Arizona 85701

Attorney for Donald Simpson

William Walker

P. O. Box 3017

Tucson, Arizona 85702

Attorney for Maria Simpson

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.