# Respondents Brief — United States v. Padilla

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0340%3A08

## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 1993
- **Citation:** 508 U.S. 77

## Text

| Bupreme Court, U.S,
FILED

~ No. 92-207 FEB 8 1993
OFFICE OF THE CLERK
IN THE +
Supreme Court of the United States

OCTOBER TERM, 1992

UNITED STATES OF AMERICA,
Petitioner,

Vv.

XAVIER V. PADILLA, ET AL.,
Respondents.

On Writ of Certiorari to the United States
Court of Appeals for the Ninth Circuit

BRIEF FOR RESPONDENTS
DONALD SIMPSON AND MARIA SIMPSON

DAVID A. BONO
SHEA & GARDNER
1800 Massachusetts Ave., NW
Washington, D.C. 20036
(202) 828-2000

Counsel for Respondents
Donald Sunpson and Mana Simpson
(By Appointment of This Court)

February 8, 1993

BEST AVAILABLE COPY

QUESTIONS PRESENTED

1. Whether the owners of an automobile seized in
their absence can contest the legality of that seizure.

2. Whether respondents had a possessory interest in
the contraband contained in their car when the car and its
contents were illegally seized, entitling them to contest the
seizure of the contraband as well as the car.

TABLE OF CONTENTS

Page
STATURGENT .ncccccccscesssstuaneneene 1
SUMMARY OF ARGUMENT ............... 5
ARISUBEINE wcccccccvccesccosssennenen 7
I. THE SIMPSONS MAY CONTEST THE
SEIZURE OF THEIR AUTOMOBILE .. 7
A. Owners Have The Right To Challenge
The Seizure Of Their Property....... 8
B. The Unreasonable Stop Of The
Simpsons’ Car Constituted An
Illegal Seizure Of Their Car ........ 1]
C. The Seizure Invaded The Simpsons’
Fourth Amendment Rights ......... 15
Il. THE SIMPSONS POSSESSED THE
CONTRABAND CONTAINED IN
THEIR CAR AND THEREFORE MAY
CONTEST ITS SEIZURE, WHICH
OCCURRED WHEN OFFICER FIFER
STOPPED THE CAR AND ITS
CUISTECED co ccccsccesesseuneeeeee 19

A. The Simpsons Possessed The
Contraband Contained
om Dee Cae .. ct cceseneneee 19

B. The Stop Constituted A Seizure Of
The Contraband That Invaded The
Simpsons’ Possessory Interests ....... 23

Ill. THE QUESTION PRESENTED BY
THE PETITION DOES NOT APPLY
CCD sccccccccecccces x)

ack hs cae h bocce se scecscecc: 33

iv

TABLE OF AUTHORITIES

CASES:

Abel v. United States, 362 U.S. 217 (1960) ...
Adams v. Williams, 407 U.S. 143 (1972) ....

Alderman v. United States, 394 U.S. 165

SD coceesucenccudecudceteeesecs
Amos v. United States, 255 U.S. 313 (1921) ..
Arizona v. Hicks, 480 U.S. 321 (1987) ......
Arkansas v. Sanders, 442 U.S. 753 (1979) ...
Berkemer v. McCarty, 468 U.S. 420 (1984) ...
Boyd v. United States, 116 U.S. 616 (1886) . . .
Brown v. United States, 411 U.S. 223 (1973) ..
Byars v. United States, 273 U.S. 28 (1927) ...
California v. Acevedo, 111 S. Ct. 1982 (1991) .
California v. Beheler, 463 U.S. 1121 (1983) ..

California v. Hodari D., 111 S. Ct. 1547

PED Secedneucenescenneesesseces
Cardwell v. Lewis, 417 U.S. 583 (1974) .....
Colorado v. Bannister, 449 U.S. 1 (1980) ....

Coolidge v. New Hampshire, 403 U.S. 443

GRPUED coccccccccncncccetecceccece
Crapo v. Kelly, 83 U.S. [16 Wall.] 610 (1872) .
Davis v. United States, 495 U.S. 472 (1990) ..
Delaware v. Prouse, 440 U.S. 648 (1979) ....
Dunaway v. New York, 442 U.S. 200 (1979) ..

First English Evangelical Lutheran Church
of Glendale v. County of Los Angeles,

482 U.S. 304 (1987)... 2... eee ee.
Florida v. Royer, 460 U.S. 491 (1983) ......

Gelston v. Hoyt, 16 U.S. [3 Wheat.] 246

ER RENE AR Ol haan
Horton v. California, 496 U.S. 128 (1990) ...

in re Fried, 161 F.2d 453 (2d Cir.),
cert. denied, 331 U.S. 858, and

cert. dismissed, 332 U.S. 807 (1947) ......

v
Page
Irvine v. California, 347 U.S. 128 (1954) .... 32
Jones v. United States, 362 U.S. 257 (1960) .. 20, 28
Kaiser Aetna v. United States, 444 U.S. 164

PPT TIT TTT TTT TTT TTT Tee 9
Lawn v. United States, 355 U.S. 339 (1958) .. 12
Loretto v. Teleprompter, 458 U.S. 419 (1982) . 16
Lucas v. South Carolina Coastal Council,

112 S. Ct. 2886 (1992) ...........055. 13
Maryland v. Macon, 472 U.S. 463 (1985) .... 8
Otis v. Watkins, 13 U.S. [9 Cranch] 339

EEUU Sucdeseeccveseboeescdseucec 18

Pelham v. Rose, 76 U.S. [9 Wall.] 103 (1870) . 6, 11
Penn Central Transp. Co. v. New York City,

Se SPEED Kdbdnsecadecsecec 9
Pennsylvania v. Mimms, 434 U.S. 106 (1977) . 12
Rakas v. Illinois, 439 U.S. 128 (1978) ...... passim

Rawlings v. Kentucky, 448 U.S. 98 (1980)... . 9, 13, 27
Simmons v. United States, 390 U.S. 377

Dy suddadagnneeeceeedese sees 20
Soldal v. Cook County, 942 F.2d 1073

(7th Cir. 1991) (en banc), rev'd,

SPER EEE Secccsccccoucsce 18
Soldal v. Cook County, 113 S. Ct. 538 (1992) . passim
Steagald v. United States, 451 U.S. 204

PD ctesbéteeedtseceveceseceess 21
Taylor v. United States, 286 U.S. 1 (1932) ... 25
Terry v. Ohio, 392 U.S. 1 (1968) .......... 12, 14
Texas v. Brown, 460 U.S. 730 (1983) ....... 8
The Josefa Segunda, 23 U.S. [10 Wheat.]

PEE Bbdadbdccosnasescceseesc< 11
The Steamboat Orleans v. Phoebus, 36 U.S.

PS DURE CP GEO cc ccccccccccccess 9
Trupiano v. United States, 334 U.S. 699

PD sCeveéesencncenvecevessvcss 25

vi

Ulster County Court v. Allen, 442 U.S. 140

PD ceeeenececesesouccdeeccsecs
United States v. Ayala, 887 F.2d 62

SG EEE Secocccedccevcccccces
United States v. Birdsong, 446 F.2d 325

PPT OTTTT TTT TTT Tee
United States v. Brignoni-Ponce, 422 U.S.

SEP ENEUED cocdecocncccceccosececess
United States v. Brown, 743 F.2d 1505

SENG GEE SeSeesccedeccocceces

United States v. Craven, 478 F.2d 1329

(6th Cir.), cert. denied, 414 US.

SEGUE Seebecdececccccccesecec:
United States v. Daniel, 725 F. Supp. 532

SG GUD welcecescccoccccece:
United States v. Davis, 617 F.2d 677

PP PEED ocecddcteecccccocces
United States v. DeLeon, 641 F.2d 330

SG GED coccescerdecdoqccecces
United States v. Galante, 547 F.2d 733

(2d Cir. 1976), cert. denied, 431 U.S.

GE Gee ccc bctcccsccccceces
United States v. Gerena, 662 F. Supp.

1218 (D. Conn. 1987) .............4..
United States v. Haes, 551 F.2d 767

SGD EEUUD cccvedcccoccccccccecs
United States v. Hensley, 469 U.S. 221

GED SccSepecceccccoccesccccccece
United States v. Hillyard, 677 F.2d 1336

PPG SUED S0cccoccceesocosecese

14

28

vil

United States v. Holifield, 956 F.2d 665

Dt Mi ceceagesteneestéesces
United States v. House, 524 F.2d 1035

Dt Piet htedeeee debs ééeeee
United States v. Hunt, SOS F.2d 931

(Sth Cir. 1974), cert. denied,

et heist eb aéeecdees
United States v. Jacobsen, 466 U.S. 109

ee ee
United States v. Jeffers, 342 U.S. 48 (1951) ...
United States v. Karo, 468 U.S. 705 (1984) ...
United States v. Kelly, 529 F.2d 1365

Dt tie nbbees see's seeuse's
United States v. Kiser, 948 F.2d 418

(8th Cir. 1991), cert. denied,

See ee Ge DEP GNOUED cc ccccccccccce:
United States v. Lisk, 522 F.2d 228 (7th

Cir. 1975), cert. denied, 423 U.S. 1078

Pn 6uesunde ddd bkeséeedSsecesess
United States v. Little, 735 F.2d 1049 (8th

Cir.), rev'd on reh'g, 743 F.2d 1261

(8th Cir. 1984), cert. denied, 105 S. Ct.

PEED adedhccdetedseocssesens
United States v. McQuagge, 787 F. Supp. 637

Dt PCE écpeésesneedescesc
United States v. Manbeck, 744 F.2d 360

(4th Cir. 1984), cert. denied, 469 U.S.

DT deebacceecencebécaeceoes
United States v. Manzella, 791 F.2d 1263

DCD ccbsesectbeeedesceses
United States v. Martorano, 709 F.2d 863

(3d Cir.), cert. denied, 464 US.

PPT ETT TO CET CETTE TTETe

viii

United States v. Millan-Diaz, 975 F.2d 720

(SEE

United States v. Ospina, 618 F. Supp. 1486

Pie PE occbeeccecsesscosess
United States v. Payner, 447 U.S. 727 (1980) .
United States v. Place, 462 U.S. 696 (1983) ..

United States v. Powell, 929 F.2d 1190
(7th Cir.), cert. denied, 112 S. Ct.

ae. os
United States v. Quinn, 475 U.S. 791 (1986) . .

United States vy. Rivera, 906 F.2d 319

ly Gia, CIUED o ccc cccccccccccccece:

United States v. Ruiz, 860 F.2d 615

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

United States v. Shaefer, 637 F.2d 200

No ras igs oe

United States v. Shackleford, 738 F.2d 776

SGD EEE ccocceccescoccesccees
United States v. Sharpe, 470 U.S. 675 (1985) .

United States v. Soule, 908 F.2d 1032

(Ist Cir. 1990)... 0. cece cece eeu

United States v. Staten, 581 F.2d 878

is cai tik ds becece

United States v. Taketa, 923 F.2d 665

(9th Cir. 1991)... 00. c cece cece ee,

United States v Tapia, 912 F.2d 1367

(11th Cir. 1990) 2.0... eee cece ee.

United States v. Turner, 528 F.2d 143
(Mh Cir.), cert. denied, 423 US.
996, and cert. denied, 429

a

United States v. Van Leeuwen, 397 US.

| RRR RHER epee E RED

Page

14

14
10, 28

passim
17
31, 32
14

21
8, 26

17

21
12

28
21
3, 22

14

22

16

United States v. Walker, 933 F.2d 812
(10th Cir. 1991), cert. denied,

112 S. Ct. 1168 (1992) ..........
United States v. Whitlock, 418 F. Supp.
138 (E.D. Mich. 1976), aff'd, 556

F.2d 583 (6th Cir. 1977) .........
United States v. Zandi, 769 F.2d 229
SEDGE DEED Secccccccccceces
Warden v. Hayden, 387 U.S. 294 (1967)
Wong Sun v. United States, 371 U.S. 471
SED Beebe oS coscceddseeeses
Yee v. City of Escondido, 112 S. Ct.
PEED ecobctdeinesescece

CONSTITUTION AND STATUTES:

U.S. Const. Amend. IV ............
21 U.S.C. Sec. 841(aXl)...........
cf A 8 ee

OTHER AUTHORITIES:

William Blackstone, Commentaries .. .
© J.S. Drugs and Narcotics .........
Wayne R. LaFave and Austin W. Scott,
Criminal Law (2d ed. 1986) ......
Wayne R. LaFave, Search and Seizure
PTT TTT Tere

_*e © @ *

ss FF

7 # *

ee e624 @

_* © ©

Page

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

No. 92-207

UNITED STATES OF AMERICA,
Petitioner,

Vv,

XAVIER V. PADILLA, ET AL.,
Respondents.

ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR RESPONDENTS
DONALD SIMPSON AND MARIA SIMPSON

STATEMENT

On September 26, 1989, Officer Fifer of the Arizona
Department of Public Safety stopped a car driven by Luis
Arciniega and jointly owned by Respondents Donald and
Maria Simpson. Officer Fifer acted without probable cause
or even a reasonable suspicion: he had radioed the car’s

2

license plate number to a police dispatcher and, because of
some error, he purported to act under the mistaken
impression that the car was not carrying the proper license
plates. T.R. 5/15/90 at 92, 99-100 (radio conversation with
Officer Williamson); see also id. at 74 (same, with police
dispatcher); Exhibit 9, T.R. 5/15/90 at 83 (police report).
Nonctheless, after this mistake came to light, Officer
Williamson (who had joined Officer Fifer) seized the car
keys from the ignition without permission, opened the
locked trunk of the car, and discovered cocaine. T.R.
5/15/90 at 96, 118. A grand jury indicted both of the
Simpsons for possessing that cocaine with the intent to
distribute it, in violation of 21 U.S.C. § 841(a)(1)."

1. The District Court’s Decision. In the United States
District Court for the District of Nevada, the Simpsons
moved to suppress evidence flowing from the stop of their
car or its subsequent search. The district court found that
Officer Fifer had no reason to stop the Simpsons’ car. It
rejected the contention that Officer Fifer had been
motivated by the license plate confusion because his
testimony in that regard was not credible. Pet. App.
25a-27a. It also rejected the contention that the car’s slow
speed had been the motivation. /d. at 25a, 27a-28a; see also
T.R. 5/8/90 at 143; T.R. 5/15/90 at 87. It therefore ruled
that the stop was an unconstitutional seizure.

The district court also ruled that the Simpsons had the
right to object to the seizure of their vehicle as violating
their Fourth Amendment rights. Pet. App. 22a-23a. It
ruled that the Simpsons could contest the stop because "the
two Simpsons owned the car" and, by briefly loaning it to
Arciniega, "they had not given up their interest in the car."

' The grand jury also indicted the Simpsons for conspiring to
distribute cocaine and conspiring to possess cocaine with the intent to
distribute it, in violation of 21 U.S.C. § 846.

3

Id. at 23a. The district court also held that the Simpsons
"intended to have control over" the cocaine in the car’s
locked trunk, and they had gained that control by reason of
their participation in "a joint venture for transportation . . .
that had control of the contraband." Jd. at 22a-23a.

After finding both that the stop of the car was
unreasonable and that it violated the Simpsons’ own
property and possessory interests, the district court ordered
the fruits of the illegal stop suppressed. Jd. at 30a. The
court also denied the government’s subsequent motion for
rehearing, which argued that the evidence of the cocaine
and a subsequent investigation that resulted from finding
that cocaine was attenuated from the unconstitutional stop.
"Had there not been a stop,” ruled the court, "it is clear to
the Court that none of this investigation would have
transpired." Id. at 34a.

Because it held that all incriminating evidence had
flowed from the illegal stop, the district court did not rule
on the Simpsons’ contention that the subsequent search of
their locked trunk was also unconstitutional. Regarding the
constitutionality of the search, the district court held that
"we just don’t get to that issue in this case.” Jd. at 29a; see
also T.R. 5/15/90 at 126 (noting that the search was not in
issue if "he shouldn’t have made the stop”).

2. The Court of Appeals’ Affirmance. In the United
States Court of Appeals for the Ninth Circuit, the United
States conceded that Officer Fifer had stopped the
Simpsons’ car without reason and had therefore acted
unconstitutionally. Pet. App. 7a. It appealed the district
court’s determination that the Simpsons’ own rights had
been violated by that seizure.

In order to determine whether the Simpsons "had an
ownership interest in seized . . . property," id. at lla
(quoting United States v. Taketa, 923 F.2d 665, 671 (9th Cir.

4

1991)), the court of appeals engaged in "fact-specific
analysis" that included "the respective possessory interests
asserted," Pet. App. 10a (same). In this regard, the court
noted that each of the Simpsons "exercise[d] independent
ownership of the vehicle." Jd. at 12a n.3; see also id. at 7a
("only the Simpsons owned the vehicle"). Moreover,
although "the defendants here did not own the contraband,"
the Simpsons “held a possessory interest in the same sense
that the proprietors of a delivery service would possess a
package.” Jd. at 1la (emphasis in original). The court also
found that each of the Simpsons’ own participation in the
joint venture to transport cocaine "demonstrated [their] joint
control and supervision over the drugs" at the time of their
seizure. Id. at 14a; see also id. at 12a-l3a & n.3.

"Accordingly, the Simpsons ... had standing not simply
because the Simpsons owned the car and jointly possessed
the drugs ... but also because they participated in the

organization, particularly on the day of the stop." Jd. at 12a.

The court of appeals went on to distinguish the
Simpsons’ interests, which had been implicated by Officer
Fifer’s unconstitutional car stop, from the interests claimed
by other of their alleged co-conspirators. Thus, the court of
appeals reversed the district court with respect to Jorge and
Maria Padilla because they did not own the car and "did not
control the drugs." Jd. at 14a.? Similarly, the court of
appeals reversed the district court’s determination with
respect to Warren Strubbe because "his mere involvement in
a conspiracy does not, by itself, suffice," id. at 15a, "[nJor did
he own the vehicle," id. at 16a.

? It remanded with respect to them, however, for a determination
concerning their responsibility for the arrangement that did control the
drugs. Pet. App. 15a.

5

SUMMARY OF ARGUMENT

There are two independent reasons for affirming the
lower courts’ judgment that the Simpsons’ Fourth
Amendment rights were violated by Officer Fifer’s illegal
stop. First, the Simpsons owned the car that Officer Fifer
stopped, and for that reason alone they have the right to
complain that the car stop was an unreasonable seizure of
their "effects." Second, the Simpsons possessed the
contraband inside the car, and the illegal stop of the car also
constituted an illegal seizure of the contraband contained
within. Because the Simpsons may therefore challenge the
stop as an illegal seizure of their property, the question
presented by the Petition -- which concerns privacy interests
relevant only to searches -- has no bearing with respect to
the Simpsons.

1. It is settled that a defendant has the right to
challenge police conduct that "has infringed an interest of
the defendant which the Fourth Amendment was designed
to protect." Rakas v. Illinois, 439 U.S. 128, 140 (1978).
Where, as here, the conduct at issue is an unreasonable
seizure of property, the defendant must show that a property
Or possessory interest has been affected; neither privacy nor
liberty interests are relevant. Soldal v. Cook County, 113
S. Ct. 538, 543 (1992). Consequently, “one derives standing
to object to a seizure of his property solely from the
property interest." 4 Wayne R. LaFave, Search and Seizure
§ 11.3(e), at 337 (2d ed. 1987).

Because of their broad property interests, owners of
property always have the right to challenge its seizure. Such
a seizure infringes one or both of their interests in the
property: the right to exclude the government from their
property and the right to use their property in whatever way
they choose.

6

Officer Fifer’s stop of the car abridged the Simpsons’
ownership interests and therefore constituted a seizure of
the Simpsons’ car. The Simpsons were ousted of their
dominion over the car upon Officer Fifer "physical[ly] taking
[it] into custody." California v. Hodari D., 111 S. Ct. 1547,
1550 (1991) (quoting Pelham v. Rose, 76 U.S. [9 Wall.] 103,
106 (1870)). Thus, even had Officer Fifer limited himself to
a temporary investigative stop, it is well-settled that such
stops are Fourth Amendment seizures. He exceeded the
scope of a mere investigative seizure, however, and it is thus
especially clear that his intrusion was a meaningful
interference with the Simpsons’ property interests and
constituted a seizure.

Because owners of property always have the right to
challenge its seizure, and because the stop here constituted
such a seizure, that should be the end of the inquiry. But
the government incorrectly contends that the Simpsons lost
their right as owners to contest the seizure of their car
because they were not physically present when it was seized.
The Court has recognized, however, that "[t]he intrusion on
possessory interests occasioned by a seizure of one’s
personal effects... may be made after the owner has
relinquished control of the property to a third party.” United
States v. Place, 462 U.S. 696, 705 (1983). To now hold
otherwise would revive the discredited theory that the
Fourth Amendment protects only privacy or liberty, which
the Court laid to rest earlier this Term in Soldal.

2. The Simpsons have a second possessory interest
that was invaded by the stop of their car. In a fact-finding
hearing held by the district court, they "establish[ed] the
requisite standing by claiming ‘possession™ of the
contraband locked in their trunk at the time of the stop, as
the government accuses them. Brown v. United States, 411
U.S. 223, 228 (1973). Officer Fifer invaded this possessory

7

interest because, when his stop asserted dominion and
control over the car, it also constituted the "assertion of
dominion and control over... its contents [that] did
constitute a ‘seizure. United States v. Jacobsen, 466 U.S.
109, 120 (1984). The invasion of this second possessory
interest provides a second basis for the Simpsons’ right to
challenge the stop.

3. These two bases for the Simpsons’ assertion of a
Fourth Amendment violation rest solely on property and
possessory interests. In its Petition for certiorari, however,
the government asked this Court to review only privacy
issues. For that reason, the Court may wish to dismiss the
writ of certiorari as improvidently granted with respect to
the Simpsons.

ARGUMENT

The court of appeals correctly determined that the
Simpsons had the right to challenge the illegal stop of their
car and its contents, because that stop violated their own
Fourth Amendment interests. Although the court assessed
the Simpsons’ interests by looking to a confluence of factors,
we demonstrate below that each factor alone suffices to
support the finding that Officer Fifer’s illegal stop violated
the Simpsons’ own property and possessory interests, which
are protected by the Fourth Amendment’s injunction against
unreasonable "scizures” of "effects."

I. THE SIMPSONS MAY CONTEST THE
SEIZURE OF THEIR AUTOMOBILE

The Simpsons are the only defendants who hold
property interests in the car that Officer Fifer illegally
stopped. In holding that the Simpsons’ rights were invaded
by that illegal police action, both courts below relied in part

8

on the fact that "the Simpsons owned the car." Pet. App.
12a & n.3; see also id. at 23a. We now show that, by itself,
this basis is sufficient to affirm the court of appeals’
determination with regard to the Simpsons, without the
necessity of inquiring into any aspects of the alleged

conspiracy.

A. Owners Have The Right To
Challenge The Seizure Of
Their Property

A defendant has the right to bring a Fourth
Amendment challenge when disputed state action "has
infringed an interest of the defendant which the Fourth
Amendment was designed to protect." Rakas v. Illinois, 439
U.S. 128, 140 (1978). This Court has also instructed that
"the interest protected by the Fourth Amendment injunction
against unreasonable searches is quite different from that
protected by its injunction against unreasonable seizures."
Arizona v. Hicks, 480 U.S. 321, 328 (1987). "A search
compromises the individual interest in privacy; a seizure
deprives the individual of dominion over his or her person
or property." Horton v. California, 496 U.S. 128, 133 (1990)
(citation omitted).’ In the context of seizures, therefore, no
role is played by the reasonable expectation of privacy that
is germane to Fourth Amendment challenges to searches.
Rather, "one derives standing to object to a seizure of his
property solely from the property interest." 4 Wayne R.
LaFave, Search and Seizure § 11.3(e), at 337 (2d ed. 1987).
Accord United States v. Salvucci, 448 U.S. 83, 91 n.6 (1980);
Rakas, 439 U.S. at 142 n.11; United States v. Lisk, 522 F.2d

> Accord Maryland v. Macon, 472 U.S. 463, 469 (1985); United States
v. Jacobsen, 466 U.S. 109, 113 (1984); Texas v. Brown, 460 U.S. 730, 747
(1983) (Stevens, J., concurring).

9

228, 230 (7th Cir. 1975) (Stevens, J.); cf United States v.
Hillyard, 677 F.2d 1336, 1338 & n.1 (9th Cir. 1982)
(Kennedy, J.).

Property rights have always been considered a grant to
an owner of uninterrupted "dominion over his or her .. .
property." Horton, 496 U.S. at 133. Blackstone regarded
property as "that sole and despotic dominion which one man
claims and exercises over the external things of the world, in
total exclusion of the right of any other individual in the
universe." 2 William Blackstone, Commentaries *2. An
owner’s dominion over his property has been described as
having at least two parts: "a right to exclude from it all the
world, including the Government, and a concomitant right
to use it exclusively for [the owner’s] own purposes.” United
States v. Karo, 468 U.S. 705, 729 (1984) (Stevens, J.,
concurring in part and dissenting in part).

A seizure invades both of these interests. By its
intrusion, the government invades “the right to exclude,"
Kaiser Aetna v. United States, 444 U.S. 164, 179-80 (1979),
which the Court has recognized in its Fourth Amendment
jurisprudence as “[o]ne of the main rights attaching to
property.” Rakas, 439 U.S. at 144 n.12; see also Rawlings v.
Kentucky, 448 US. 98, 112 (1980) (Blackmun, J.,
concurring). A seizure also interferes with the owner’s right
to use his property in whatever way he chooses absent
"physical invasion by government." Penn Central Transp. Co.
v. New York City, 438 U.S. 104, 124 (1978). As the Court
has thus recognized with respect to cargo ships, "the owners
have a right to employ the ship in such voyages as they may
please." The Steamboat Orleans v. Phoebus, 36 U.S. [11 Pet.]
175, 183 (1837). That recognition applies equally to cars
and personal property in general, because "personal
property, wherever it may be, is under the personal control
of its owner." Crapo v. Kelly, 83 U.S. [16 Wall.] 610, 622
(1872). Interfering with this facet of an owner's property

10

interest also constitutes “the invasion of his indefeasible
right of ... private property." Boyd v. United States, 116
U.S. 616, 630 (1886).

Because a seizure invades these aspects of a property
interest, an owner always has the right to contest the seizure
of his own property, as the Court has repeatedly held. Eg,
Soldal v. Cook County, 113 S. Ct. 538 (1992); United States
v. Jacobsen, 466 U.S. 109, 120, 124-25 (1984); United States
v. Place, 462 U.S. 696 (1983). As the Court recognized in
Rakas, 439 U.S. at 142 n.11 (1978), defendants have the
right to "contest the lawfulness of the seizure ... if their
own property were seized." The government thus concedes
(Br. 26 n.10) "the general proposition . . . that a person may
challenge the seizure of his own property.” So far as we
know, this Court has never found an exception to this rule;
in any event, the United States cites no decision of the
Court that has ever denied an owner’s right to challenge
government action that constituted the seizure of his own

property.

This does not mean that one who owns property
necessarily has the additional right to contest the search of
either that property or the place where that property is kept.
In contrast to a seizure, a search implicates only "an
expectation of privacy that society is prepared to consider
reasonable," Jacobsen, 466 U.S. at 113, and for that reason
a party may contest a search “only when the challenged
conduct invaded his legitimate expectation of privacy rather
than that of a third party." United States v. Payner, 447 U.S.
727, 731 (1980). But the police action found illegal by the
lower courts -- the unreasonable stop “of the Simpson
vehicle being driven by Mr. Arciniega,” Pet. App. 29a -- was
not a search. As we now show, Officer Fifer’s illegal stop
constituted a seizure of the Simpsons’ car. For that reason,
the Simpsons have the right to contest it.

1]

B. The Unreasonable Stop Of The
Simpsons’ Car Constituted An
Illegal Seizure Of Their Car

Under the Court’s test, Officer Fifer’s illegal stop
constituted a seizure of the Simpsons’ car. The Court
recognized in California v. Hodari D., 111 S. Ct. 1547 (1991),
that an inanimate object is scized upon a state actor
"physical[ly] taking [it] into custody.” Jd. at 1550 (quoting
Pelham v. Rose, 76 U.S. [9 Wall.| 103, 106 (1870)). Officer
Fifer’s stop was such "an open, visible possession claimed,
and authority exercised under a seizure,” because of which
the Simpsons were "no longer at liberty to exercise any
dominion" over their car. The sosefa Segunda, 23 U.S. [10
Wheat.] 312, 325 (1825), cited with approval in Hodari D.,
111 S. Ct. at 1550. This “assertion of dominion and control
.. . did constitute a ‘scizure.” Jacobsen, 466 U.S. at 120 &
n.18.

The government suggests that the stop seized only
Arciniega, but the fact that he, too, was seized does not alter
the conclusion that Officer Fifer also seized the car when he
stopped it. Indeed, one of the justifications offered for the
stop by Officer Fifer was his desire to confirm the suspicion
that the car was improperly registered and carrying
erroneous license plates. The present situation is thus no
different than the stop addressed in Delaware v. Prouse, 440
U.S. 648, 650 (1979), where the Court found that police had
failed to establish any reason "that cither the car or any of
its occupants [was] subject to seizure.”

The United States also contends (Br. 22) that Officer
Fifer’s illegal action was only a “temporary investigatory
stop” that did not "ripen|] . . . into a seizure of the car” until

12

later events had transpired.* This contention is premised on
a mistaken view of the law. Although the Court in Terry v.
Ohio, 392 U.S. 1, 16 (1968), relaxed the level of suspicion
necessary for temporary investigative seizures, it emphasized
that they were seizures nonetheless. Accordingly, even when
finding particular temporary stops justified under Terry, the
Court has always analyzed them as Fourth Amendment
seizures. E.g., Pennsylvania v. Mimms, 434 U.S. 106 (1977);
Adams v. Williams, 407 U.S. 143 (1972). In other cases, the
Court has similarly recognized that vehicle stops constitute
seizures. E.g., United States v. Sharpe, 470 U.S. 675, 682
(1985); United States v. Hensley, 469 U.S. 221, 226 (1985);
Colorado v. Bannister, 449 U.S. 1, 4 n.3 (1980); Prouse, 440
U.S. at 650, 653. Thus, the government concedes (Br. 7)
that the illegal stop, even if temporary, was sufficient to
constitute a seizure of Arciniega. Because the stop
simultaneously affected the Simpsons’ property to the same
degree, it was also a seizure of their car.

* The government's contention in this regard is a new argument
raised for the first time in the Brief of the United States to this Court.
The United States did not present this contention at the suppression
hearing, despite the fact that it bears the "burden to demonstrate that the
seizure .. . was sufficiently limited in scope and duration to satisfy the
conditions of an investigative seizure.” Florida v. Royer, 460 U.S. 491, 500
(1983) (plurality opinion). Nor did it press this contention on appeal.
Grven the lack of any guidance on this fact-bound issue from the lower
courts, this Court should refuse to consider this new argument. Davis v.
United States, 495 U.S. 472, 488-89 (1990); Brown v. United States, 411
U.S. 223, 230 n.4 (1973); Lawn v. United States, 355 U.S. 339, 362 0.16
(1958).

* The government’s Terry analogy must also be rejected because
Terry is-relevant only to the level of suspicion necessary to justify an
investigative seizure. The United States conceded in the court of appeals
that Officer Fifer’s seizure of the Simpsons’ car was unreasonable under
the Fourth Amendment. Thus, while the temporary nature of a seizure

(coatinued...)

13

The reason this Court has held that such police
conduct constitutes a "seizure" within the meaning of the
Fourth Amendment is that even the temporary assertion of
superior dominion meaningfully interferes with an owner’s
dominion over his property. The Court recognized this
proposition in Place, when it treated as a seizure "the
intrusion upon the individual’s Fourth Amendment rights
when the police briefly detain [his] luggage for limited
investigative purposes." - 462 U.S. at 705. The Court also
applied the amendment'’s protections in Soldal, even though
the petitioners’ mobile home had only been moved to an
adjoining lot, and it was subsequently returned to its original
position. When the owners challenged the government's
action as a seizure of their property, the Court found that
the "removal of the Soldals’ trailer home implicated their
Fourth Amendment rights," 113 S. Ct. at 543, because even
temporary interferences with property interests "plainly
implicate the interests protected by that provision." /d. at
549.°

While even a Terry-type stop is a seizure that interferes
with owners’ property interests, in this case "[t]he manner in
which the seizure . . . [was] conducted" by Officer Fifer went

*(..continued)
may go to the question of whether or not it was reasonable, Place, 462
US. at 706, the United States does not bring the issue of reasonableness
before the Court in this case.

* In the analogous context of the Takings Clause, this Court has
declared that temporary deprivations give owners the mght to bring a
constitutional challenge. Lucas v. South Carolina Coastal Council, 112
S. Ct. 2886, 2891-92, 2901 n.17 (1992); First English Evangelical Lutheran
Church of Glendale v. County of Los Angeles, 482 U.S. 304 (1987). The
Fourth Amendment is analogous to the Takings Clause because these
provisions “target|{] the same sort of governmental conduct.” Soldal, 113
S.Ct. at 548; see also Rawlings, 448 US. at 112 (Blackmun, J.,

concurring) (drawing analogy).

14

well beyond the limits of such a stop in at least two respects.
Place, 462 U.S. at 707-08; Terry, 392 U.S. at 28; see also
Dunaway v. New York, 442 U.S. 200, 212 (1979).’ First, the
officers on the scene continued their seizure even after they
determined that the car’s plates were proper, as both courts
below specifically found. Pet. App. 4a, 26a; see also T.R.
5/15/90 at 76-77, 111-15, 157. Second, prior to searching the
Simpsons’ trunk, Officer Williamson seized from the ignition
switch the keys to the vehicle, without consent from
Arciniega or anyone else to do so. T.R. 5/15/90 at 96, 118.
Because the car’s keys were seized, the stop of the
Simpsons’ vehicle is analogous to a seizure of a person that
exceeds the narrow scope of Terry "as soon as a suspect’s
freedom of action is curtailed to a ‘degree associated with a
formal arrest.” Berkemer v. McCarty, 468 U.S. 420, 440
(1984) (quoting California v. Beheler, 463 U.S. 1121, 1125
(1983))." In sum, Officer Fifer’s stop was clearly a
meaningful intrusion that seized the Simpsons’ car.

” WI ile a traffic stop may fit under Terry if it is merely to determine
whether a suspicious registration is in order, the government must
demonstrate that its assertedly temporary seizure came to an end as soon
as that suspicion was laid to rest. United States v. Brignoni-Ponce, 422
U.S. 873, 881-82 (1975). Accord United States v. Millan-Diaz, 975 F.2d
720 (10th Cir. 1992); United States v. Walker, 933 F.2d 812 (10th Cir.
1991); United States v. Tapia, 912 F.2d 1367 (11th Cir. 1990); United
States v. Rivera, 906 F.2d 319 (7th Cir. 1990); United State: v. Daniel, 725
F. Supp. 532 (M.D. Ga. 1989); see generally 3 Wayne R. LaFave, Search
and Seizure § 9.2(f), at 382 & n.159 (2d ed. 1987).

* Lower courts have thus found ihat a traffic stop exceeded the
bounds of a temporary investigative seizure if, after an officer stopped a
car, he also "took the key from the ignition.” United States v. McQuagge,
787 F. Supp. 637, 646 (E.D. Tex. 1991); see also Millan-Diaz, 975 F.2d ai
721; United States v. Holifield, 956 F.2d 665, (7th Cir. 1992); United States
v. Birdsong, 446 F.2d 325, 327 (Sth Cir. 1971); United States v. Ospina,
618 F. Supp. 1486 (E.D.N.Y. 1985); United States v. Whitlock, 418
F. Supp. 138 (E.D. Mich. 1976), aff'd, 556 F.2d 583 (6th Cir. 1977).

15

Cc, The Seizure Invaded The

Simpsons’ Fourth Amendment
Rights

We have shown above both that owners of property
always have the right to challenge the seizure of their
property and that Officer Fifer’s stop constituted a seizure
of the Simpsons’ car. That should be sufficient to end the
inquiry with regard to the Simpsons. ‘fhe government
contends, however, that the Simpsons lost their right as
owners to contest the seizure of their car because they were
not physically present when it was seized.

That contention is incorrect. It is well settled that an
absent owner can challenge a seizure of his property, even
while it is on loan to another, because "[t]he intrusion on
possessory interests occasioned by a seizure of one’s
personal effects... may be made after the owner has
relinquished control of the property to a third party." Place,
462 U.S. at 705; see also Lisk, 522 F.2d at 230. Thus, in
Cardwell v. Lewis, 417 U.S. 583 (1974), the Court heard a
challenge by an arrestee to the seizure of his car from a
public parking lot while he was incarcerated. Both the
plurality and dissenting justices analyzed the seizure under
traditional Fourth Amendment principles, recognizing that
the owner’s property interests had survived the bailment and
were implicated by the government’s action. See also Soldal,
113 S. Ct. at 545 (explaining Cardwell). To hold otherwise

* The Court similarly inquired into the reasonableness of the seizure
in Coolidge v. New Hampshire, 403 U.S. 443 (1971), which the owner
challenged after his car was taken from his driveway while he was away
and in custody. Unlike Officer Fifer’s seizure, the seizures in both
Cardwell and Coolidge were ultimately found reasonable.

16

would confuse one who loans his property or places it in a
safe-deposit box with one who abandons it. Cf Abel v.
United States, 362 U.S. 217, 240-41 (1960)."°

This principle -- that one who entrusts his property to
another may contest its seizure during the bailment -- is of
ancient origins. According to Blackstone, "the bailor hath
only the right, and not the immediate possession; the bailee
hath the possession, and only a temporary right. But it is a
qualified property in them both; and each of them is entitled
to an action, in case the goods be damaged or taken away."
2 William Blackstone, Commentaries *396. This principle
extends equally to scizures that are temporary, which also
may be contested by the absent owner. Thus, in Jacobsen,
a federal agent temporarily seized a package that previously
had been placed with a private carrier service. When the
customer challenged the temporary seizure out of his
presence, the Court recognized that the seizure implicated
protected ownership rights and applied Fourth Amendment
precepts. 466 U.S. at 120."

The lower tederal courts also agree that absent owners
have the right to object to the temporary investigative
seizure of their property, even if that seizure endured only

'° As the Court recognized in Warden v. Hayden, 387 U.S. 294, 301
(1967), the Fourth Amendment continues to shield effects “without
regard to the use to which any of these things are applied.” In the
analogous Takings Clause jurisprudence, the Court has recognized that,
even when the owner is absent and has placed his property in a second
party's care, he has not abandoned either his property or his right to
exclude third parties. F.g., Loretio v. Teleprompter, 458 U.S. 419, 438-39
(1982) (owner has right to challenge minor physical occupation of
property that is being rented).

" Jacobsen reaffirmed this aspect of United States v. Van Leeuwen,
397 U.S. 249 (1970). In both cases, the postal patrons’ ownership
interests were ultimately found to have been outweighed by valid grounds
for the seizure, which Officer Fifer did not have here.

17

while the property was out of their physical possession. For
example, in United States v. Kelly, 529 F.2d 1365, 1369 (8th
Cir. 1976), the Eighth Circuit held that an owner has the
right to challenge the temporary seizure of films, which at
the time had been shipped from the owner’s presence,
noting that "[a] contrary conclusion would emasculate the
plain language of the Fourth Amendment, which protects
‘papers’ and ‘effects.” Accord United States v. Haes, 551
F.2d 767, 769-70 (8th Cir. 1977) (absent owner of films had
right to contest their seizure during shipment). Similariy,
the Third Circuit has held that "[t]here can be no question
of an owner’s standing to object to a seizure of his property
... even when a third party has temporary possession of
that property." United States v. House, 524 F.2d 1035, 1042
(3d Cir. 1975) (emphasis in original). Thus, in a case
analytically indistinguishable from the present one, the Third
Circuit squarely held that an absent owner of trucks that had
been subject to investigative seizures had the right to
challenge those seizures. United States v. Shaefer, 637 F.2d
200 (3d Cir. 1980). In that case, as here, the United States
argued that the owner could not contest seizures of his own
trucks because he was not present at the time of the
investigative seizures, but that contention was rejected
because "the Fourth Amendment’s prohibition against
seizures of property does not depend upon presence of the
owner.” Id. at 203.

The United States does not take issue with the
foregoing precedents or analysis, instead placing virtually
exclusive reliance (Br. 19 & 21) on the Seventh Circuit’s
opinion in United States v. Powell, 929 F.2d 1190, 1195 (7th
Cir. 1991), to the effect that the seizure of a car affects only
the liberty interests of those who are present. However,
even the Seventh Circuit recognized in that case that
“ownership carries with it a right to exclude." Jd. at 1194-95.
In declining to apply that principle to the seizure at issue,
the Seventh Circuit gave the constitutional protection

18

against "seizures" of "effects" exactly the cramped reading
that the Court overturned earlier this Term in Soldal. The
Court in that case overturned the Seventh Circuit’s theory
that seizures only implicate privacy or liberty interests, ruling
instead that the Fourth Amendment protects "possessory
interests where neither privacy nor liberty [is] at stake."
113 S. Ct. at 543 (reversing Soldal v. Cook County, 942 F.2d
1073 (7th Cir. 1991) (en banc)).

Nor does Powell recognize or address precedents of
this Court (such as Place and Jacobsen) or those of sister
courts (such as Shaefer) which have found that absent
owners have the right to contest even temporary seizures of
their property. Because the ownership interest in deploying
one’s property as he sees fit is separate from a liberty
intcrest in personal freedom of movement, the owners of
cars, trucks or freighter ships all have the right to challenge
warrantless scizures of their means of conveyance, as the
Court has recognized from the earliest days of the Republic.
See, e.g., Gelston v. Hoyt, 16 U.S. [3 Wheat.] 246, 305-06
(1818) (suit by absent owner of ship that was "detained");
Otis v. Watkins, 13 U.S. [9 Cranch] 339, 353 (1815) (suit by
absent owner of scized schooner). For a similar reason, the
government is mistaken when it contends (Br. 22) that the
seizure of the Simpsons’ car is no greater an intrusion of
their rights than if Officer Fifer had only delayed its return
by seizing Arcinicga without illegally seizing the car. Unlike
the government’s hypothetical, Officer Fifer’s seizure was
the direct assertion by a state actor of dominion and control
over the Simpsons’ car, in violation of their Fourth
Amendment rights.

Because the Simpsons can challenge the stop of their
car, evidence tlowing from that stop was rightly excluded
from their trial. The district court ruled that the cocaine
discovered in the trunk of the Simpsons’ car had to be
suppressed as fruit of the illegal seizure of the car. Pet.

19

App. 32a. The United States sought rehearing on the issue
of whether the evidence was attenuated from the illegal
seizure, id. at 31a-34a, and it also appealed this issue to the
court of appeals, id. at 17a-2la. It has not sought the
Court’s review of the lower courts’ attenuation
determinations, however, and for that reason the issue is not
before the Court. Accordingly, the court of appeals chould
be affirmed with respect to the Simpsons.

Il. THE SIMPSONS POSSESSED THE
CONTRABAND CONTAINED _ IN
THEIR CAR AND THEREFORE MAY
CONTEST ITS SEIZURE, WHICH
OCCURRED WHEN OFFICER FIFER
STOPPED THE CAR AND ITS
CONTENTS

There is a second and independent basis for the
Simpsons to challenge Officer Fifer’s stop and thereby have
the evidence flowing from that stop excluded from their
trial. Looking to traditional indicia of possession, the court
of appeals found that the Simpsons exercised "joint control
and supervision over the drugs,” Pet. App. 14a, and
therefore held a "possessory interest in the drugs” that were
locked in their trunk when Officer Fifer, by his stop,
asserted dominion and control over both the car and its
contents. Jd. at lla. As we now show, this aspect of the
court of appeals’ opinion was correct.

A. The Simpsons Possessed The
Contraband Contained In Their
Car

It has never been a disputed issue in this case that the
Simpsons possessed the cocaine in their trunk when Officer
Fifer stopped their car. The government indicted the
Simpsons for this possession, and it continues to seek to

20

predicate criminal liability on precisely this alleged fact.”

Morcover, in a hearing held pursuant to Simmons v. United
States, 390 U.S. 377 (1968), the Simpsons demonstrated that
they possessed the cocaine when it was seized. See generally
Brown v. United States, 411 U.S. 223, 228 (1973) ("the
detendant is permitted to establish the requisite standing by
claiming ‘possession’ of incriminating evidence").” The
district court therefore concluded that they "had control of
the contraband," Pet. App. 22a, and the court of appeals
agreed that the Simpsons "held a possessory interest" in the
contraband, id. at 1la, by virtue of their "joint control" over
it. Jd. at 14a. While the United States makes other
arguments in its Brief, discussed infra Section II.C., nowhere
does it seek to rebut its recognition (Br. 24) that the
Simpsons held a "possessory interest . . . in the cocaine
hidden in the trunk."

'* The only possession alleged in Count 3 of the indictment was "on
or about September 26, 1989, at or near Tucson.” C.A. Excerpt of
Record Doc. 29, at 3. The Simpsons were not at the place alleged at
that time, and in any event the record clearly discloses that only
Arciniega had physical control of the coniraband in the alleged
circumstances. Indeed, the record discloses no instance in which
Mr. Simpson ever had physical control of the contraband.

' The United States (Br. 26 n.10) erroneously characterizes the
analysis we present in text as the “automatic standing rule” of Jones v.
United States, 362 U.S. 257, 261-64 (1960), which was overturned in
Salvucci. The Simpsons made separate presentations to affirmatively
demonstrate their possessory interest at the time of the contested seizure
and did not merely rest on the allegations charged in the indictment. It
is clear, therefore, that the Sunpsons did not take advantage of any rule
of “automatic standing.” In any event, Salvucci concerned searches and
not seizures, and the Court in that case was therefore differentiating
between the possessory interests alleged by the government’s indictment
and the privacy inicrest necessary to assert a Fourth Amendment
challenge to a search.

21

It is for good reason that the government does not
contend that the Simpsons are without possessory interests.
The district court’s finding that the Simpsons "had control of
the contraband” and "intended to have control over it," Pet.
App. 22a-23a, comports with this Court’s recognition that
possession may be found when a defendant "had both the
ability and the intent to exercise dominion and control."
Ulster County Court v. Allen, 442 U.S. 140, 164 (1979)."*
Similarly, the contraband was concealed in the Simpsons’
locked trunk, and "[o]ne who owns a motor vehicle in which
contraband is concealed may be deemed to possess the
contraband.” United States v. Ruiz, 860 F.2d 615, 619 (Sth
Cir. 1988) (citing cases); see also Steagald v. United States,
451 U.S. 204, 209 (1981) (absent defendant’s "connection
with the searched home was sufficient to establish his
constructive possession of the cocaine found in a suitcase in
the closet of the house"). The fact that Arciniega was
driving the car is of no moment, for possessory interests may
be established when the defendant exercises his control and
dominion over the item "either directly or through others."
United States v. Shackleford, 738 F.2d 776, 785 (7th Cir.
1984); United States y. Staten, 581 F.2d 878, 883 (D.C. Cir.
1978); United States v. Craven, 478 F.2d 1329, 1333 (6th Cir.

The courts of appeals agree that a defendant may be found to
have possessed an item not in his physical control. Whenever the
question has arisen in the context of criminal liability for possessing
narcotics, the courts have emphasized that, as Judge Posner has put it,
“the essential point is that the defendant have the ultimate control over
the drugs . . . as the owner of a safe deposit box has legal possession of
the contents even though the bank has actual custody.” United States v.
Manzella, 791 F.2d 1263, 1266 (7th Cir. 1986); see, ¢.g., United States v.
Ayala, 887 F.2d 62, 68 (Sth Cir. 1989); United States v. Gardea Carrasco,
830 F.2d 41, 45 (Sth Cir. 1987); United States v. Zandi, 769 F 2d 229, 234-
35 (4th Cir. 1985); United States v. Martorano, 709 F 2d 863, 866-67 (3d

Cir. 1983); see generally Wayne R. Lafave and Austin W. Scott, Criminal

Law § 3.2(e) (2d ed. 1986); 28 CJ.S. Drugs and Narcotics, Supp. § 158.

22

1973). The examination undertaken by the court of appeals
thus comported with the general test for determining
whether the Simpsons themselves had possession of the
contraband.

The United States mischaracterizes the decision below
as turning on mere participation in a conspiracy. The court
of appeals explicitly rejected this very contention, finding
that a “coconspirator exception’ ... would be in clear
contravention of holdings of the Supreme Court and this
circuit.” Pet. App. 16a (citing Alderman v. United States, 394
U.S. 165, 172 (1969); United States v. Taketa, 923 F.2d 665,
671 (9th Cir. 1991); United States v. Turner, 528 F.2d 143,
164 (9th Cir. 1975)). Rather, it followed its own precedent
and carefully "engage[d] in fact-specific analysis [of] . . . the
respective possessory interests asserted" to determine the
question that is relevant to the issue of the Simpsons’ right
to challenge a seizure -- the nature of the Simpsons’ own
“ownership interest in [the] seized... property.” Pet. App.
10a-1la (quoting Taketa, 923 F.2d at 671). In this context,
the court of appeals found that the Simpsons had proven
their own possessory interests and agreed with the
government that "mere involvement in a conspiracy does
not, by itself, suffice.” Pet. App. 15a.

To be sure, the government charged the Simpsons not
only with possession but also with conspiracy both to possess
and to distribute. For that reason, the court examined the
alleged conspiratorial distribution network in order to
separate out the Simpsons’ own possessory interests from
both their mere participation in the alleged conspiracy and
the possessory interests of their alleged co-conspirators. To
have done any less, the court of appeals would have run
afoul of Brown v. United States, 411 U.S. at 228, and stripped
the Simpsons of their right to demonstrate their own

23

possessory interests in the seized contraband, only because
the government also accused them of possessing it as part of
a distribution network."

B. The Stop Constituted A Seizure Of
The Contraband That Invaded The
Simpsons’ Possessory Interests

As we have shown, the stop of the Simpsons’ car
constituted its seizure. It is settled that the seizure of a
container, such as a car, also constitutes the seizure of its
contents. Thus, in Jacobsen, the Court reviewed a challenge
to the initial stop of 2a package and the subsequent
destruction of some of its contents. In analyzing its initial
stop, the Court recognized that, at its inception, "the agents’
assertion of dominion and control over the package and its
contents did constitute a ‘seizure.” 466 U.S. at 120.
Because the contents had thus been initially seized, the
Court found that its subsequent partial destruction
“converted what had been only a temporary deprivation of
possessory interests into a permanent one." Jd. at 124-25.
Following the same principle, the Court has recognized that
a stop of a car constitutes a seizure of its contents, finding
that the reasonableness of the car’s stop may be judged with
exclusive reference to its contents. E.g., Arkansas v. Sanders,
442 U.S. 753, 761 (1979). Here, too, when Officer Fifer
stopped the car, he also asserted dominion and control over
its contents, which from that point on could not be removed.

* The government (Br. 19) finds it “anomalous” that defendants
would choose to prove their own possession of contraband in order to
challenge a seizure under the Fourth Amendment. But that is precisely
what this Court envisioned in Brown v. United States, 411 US. at 228.

Cf. Place, 462 U.S. at 701 & n.3 (discussing Sanders). This aspect
of Sanders was not overruled in Califomia v. Acevedo, 111 S. Ct. 1982
(1991).

24

The contraband concealed in the Simpsons’ trunk was for
that reason “seized,” in the same manner that the car and
driver were seized when Officer Fifer stopped them."”

The government secks to dispute this conclusion on
three grounds, but all of its contentions miss the mark. It
first argues (Br. 24) that the Simpsons cannot bring their
Fourth Amendment challenge “for the same reasons that the
mere stop of the car did not constitute an unreasonable
seizure.” We have shown above, however, that the stop was
an unreasonable seizure. The government’s two additional
points are similarly in error.

1. Contraband May Be Illegally Seized. The
government asserts (Br. 24) that the Simpsons cannot
contest the illegal seizure of the contraband in their trunk
because they “were not legally entitled to possess the
cocaine." But possessory interest in an item is a sufficient
predicate to challenge the seizure of that item,
notwithstanding the fact that it is contraband. Lisk stands
for precisely this point, for it concerned illegal possession of
a bomb. 522 F.2d at 229. Indeed, the government's
proposed constitutional rule cuts far too broadly, for it
would justify any seizure that led to the discovery of
contraband, regardless of how unreasonable the police

'’ The United States also points out (Br. 22-23) that, under our
analysis, someone who might have loaned a suit of clothes to the driver
would also have had his interests invaded by Officer Fifer’s illegal seizure
of the car and its contents. Under Wong Sun v. United States, 371 US.
471 (1963), however, it is necessary for one who complains of a seizure
also to demonstrate that the seizure led to the evidence he seeks to
suppress. In the government's hypothetical, the owner of the seized suit
could not have demonstrated that the suit’s seizure led to the cocaine in
the car’s trunk. In contrast, had the Simpsons’ car and its contents not
been seized, “none of this investigation would have transpired.”
Pet. App. 34a.

25

conduct. This is simply not the case. E.g., Place, 462 U.S.
at 710 (concluding that seizure of luggage that contained
cocaine was unconstitutional).

The Court thus held long ago that the possession of
contraband may be illegal, but "in abrogating property rights
in such goods, [Congress] merely intended to aid in their
forfeiture and thereby prevent the spread of the traffic in
drugs rather than to abolish the exclusionary rule formulated
by the courts in furtherance of the high purposes of the
Fourth Amendment." United States v. Jeffers, 342 U.S. 48,
53-54 (1951) (citing In re Fried, 161 F.2d 453 (2d Cir. 1947)).
The government’s argument was for that reason rejected in
Trupiano v. United States, 334 U.S. 699, 707 (1948), when the
government sought to justify the warrantless seizure of a still
on the grounds that it was contraband:

"The fact that they actually seized only
contraband property, which would doubtless have
been described in a warrant had one been issued,
does not detract from the illegality of the seizure.
See Amos v. United States, 255 U.S. 313 [(1921)};
Byars v. United States, 273 U.S. 28 [(1927)};
Taylor v. United States, {286 U.S. 1 (1932)}.”

In arguing to the contrary, the government confuses
the possessory interests at stake in this seizure from the
privacy interests called into question only by a search. For
example, it looks to Jacobsen for the notion (Br. 24) that
one cannot “privately’ possess[] cocaine," but the Court in
the quoted passage was concerned with only “any legitimate
interest in privacy." Jacobsen, 466 U.S. at 123. The
government fails to account for the Court's other holding in
the same case, that a seizure of the cocaine "did affect
respondents’ possessory interests protected by the
Amendment." /d. at 124 (emphasis supplied). Its other
citations are similarly in error.

26

2. Privacy is of No Moment to The Challenge of A
Seizure. The government focuses on the same irrelevant
factor when it argues (Br. 15) that "status as a co-conspirator
cannot create an expectation of privacy where one otherwise
would not exist." Whatever else may be said about this
proposition, its focus on privacy interests is clearly irrelevant
to the question of whether defendants have the right to
assert that their own possessory interests have been violated
by a seizure. While possession may at times be insufficient
with regard to the privacy interests that are implicated by
searches, the court of appeals found that the possession
demonstrated by the Simpsons was sufficient for them to
challenge a seizure.

Consequently, none of the holdings cited by the
government applics to the issue presently of concern:
whether Officer Fifer’s seizure implicated the Simpsons’ own
possessory interests in the seized contraband. For example,
in Salvucci, two defendants attempted to contest a warranted
search of the home of one of their mothers, which disclosed
the stolen mail defendants were accused of possessing.
Because the defendants challenged only a search and not a
seizure, the Court found it insufficient that they retained

possession of the mail they had stashed in the place that was -

searched. "We simply decline to use possession of a seized
good as a substitute for a factual finding that the owner of
the good had a legitimate expectation of privacy in the area
searched.” 448 U.S. at 92. At the same time, the Court
specifically distinguished scizures, noting that "possession of
the seized good" provides the interest necessary for
mounting a Fourth Amendment challenge "if the seizure, as
opposed to the search, was illegal." /d. at 91 n.6.

Similarly, the Court in Rakas merely held that those
defendants could not challenge only a search of a vehicle.
As Justice Powell noted in his concurring opinion, "[t}he

27

petitioners [did] not challenge the constitutionality of the
police action in stopping the automobile in which they were
riding.” 439 U.S. at 150-51. Nor had either of them “ever
asserted that he owned the rifle or shells" discovered as a
result of the challenged search. Jd. at 129; see also id. at
130-31 & si. The Court therefore held that those
petitioners could not challenge the search of an area in
which they “would not normally have a_ legitimate
expectation of privacy," id. at 149, although it also
recognized the right to "contest the lawfulness of the seizure
... if their own property were seized." Jd. at 142 n.11."

This thread -- concern with only privacy interests
implicated by searches -- runs throughout the cases that the
government has inappropriately cited for a very different
(and erroneous) proposition: that possession is an
insufficient interest on which to premise a challenge to a
seizure. In Alderman, 394 U.S. at 171-72, for example, the
Court found that "a Fourth Amendment violation can be
successfully urged only by those whose rights were violated
by the search itself." In Rawlings, 448 U.S. at 105, the
defendant did claim a possessory interest in the contraband
he had stashed in Cox's purse, but the Court found that

Wong Sun is to the same effect. Defendants Toy and Wong Sun
also allegedly engaged in a conspiracy to possess and transport narcotics,
but they suffered no illegal seizure of constructively possessed
contraband. Rather, they sought to challenge only the illegal search of
Toy’s residence, which led to the subsequent surrender by Yee of
narcotics. The Court held that the narcotics were inadmissible “fruit of
the poisonous tree” as to Toy only because they were tainted by the
illegal search of his residence “and not by any official impropriety
connected with their surrender by Yee.” 371 U.S. at 492. In the context
of Wong Sun's similar challenge to the search of Toy, the Court was
unconcerned with whether he possessed the narcotics held by Yee,
finding instead that the initial search of Toy "invaded no right of privacy
of person or premises which would entitle Wong Sun to object to [the
narcotics’] use at his trial.” /d.

28

possession insufficient to establish a "legitimate expectation
of privacy in that purse," and for that reason he "could not
challenge the legality of the search of Cox’s purse." In all of
the other cases of the Court that the United States has
cited, neither a seizure nor a possessory interest was at issue.
See Payner, 447 U.S. at 729, 732 (defendant could not
challenge a "flagrantly illegal search" because defendant "has
no expectation of privacy"); Jones v. United States, 362 U.S.
257, 258 (1960) (concerning "a defendant’s standing to
challenge the legality of a search")."

'® The lower court cases cited by the government similarly focused
on privacy interests and not possessory interests. United States v. Kiser,
948 F.2d 418, 424 (8th Cir. 1991) ("legitimate privacy expectations of
others may not be vicariously asserted"); United States v. Soule, 908 F.2d
1032, 1036 (1st Cir. 1990) ("it would be difficult to posit a clearer failure
to demonstrate any legitimate expectation of privacy on the part of the
defendant"); United States v. Manbeck, 744 F.2d 360, 374 (4th Cir. 1984)
("Defendants have not submitted any other persuasive evidence of a
privacy interest in the tractor-trailer."); United States v. Brown, 743 F.2d
1505, 1508 (11th Cir. 1984) ("he cannot assert a legitimate privacy
interest in contraband hidden on Manikowski’s person"); United States v.
Little, 735 F.2d 1049, 1053 (8th Cir.) ("Neither [a defendant's] mere
presence in the conspiracy nor the acts of his co-conspirators can give
him a legitimate expectation [of privacy] ... where none exists
otherwise.”), rev'd on reh'g, 743 F.2d 1261 (8th Cir. 1984); United States
v. DeLeon, 641 F.2d 330, 337 (Sth Cir. 1981) ("A person has no right to
assert the inadmissibility of the fruits of an illegal search unless the
challenged conduct invades his own legitimate expectation of privacy.”);
United States v. Davis, 617 F.2d 677, 691 (D.C. Cir. 1979) ("Davis has
claimed no interest in the premises searched, and his interest in the
cocaine was not one that suggested a continuing expectation of privacy.”);
United States v. Galante, 547 F.2d 733, 740 (2d Cir. 1976) (“neither
appellant was present at the time of the initial search"); United States v.
Huni, 505 F.2d 931, 942 (Sth Cir. 1974) ("Although there may well be
cases in which a principal may object to a search of his agent’s papers or
effects, this is not one of them."); United States v. Gerena, 662 F. Supp.
1218, 1223-24 (D. Conn. 1987) ("defendants have failed to adequately
allege the existence of legitimate expectations of privacy in each of the
three locations at issuc”).

29

Accordingly, the government’s contention that the
Simpsons are barred from bringing their claim by a footnote
in Brown v. United States, 411 U.S. at 230 n.4, is untenable.
The Court in that case was concerned only that the
defendants had "no standing to contest the defective warrant
used to search [co-conspirator] Knuckles’ store," and not a
seizure of any item. Jd. at 230. For that reason, only
privacy and not possessory interests were relevant to the
analysis. Moreover, the defendants in Brown had specifically
failed to assert in the lower courts "a possessory interest in
the goods at Knuckles’ store." Jd. at 228. The Court
therefore held that no contention concerning possession was
properly before it. /d. at 230 n.4. Even then, the Court
held that the defendants could not have possessed the
contraband at the time of the search because they had
“already ‘sold’ the merchandise" and the alleged conspiracy
had already ended. /d. at 230 n.4; see also id. at 225, 229.
The Brown footnote thus cannot control the present case,
where the lower courts have found that the Simpsons
possessed the contraband because they directly exercised
"joint control and supervision over the drugs" at the time
their car was illegally seized. Pet. App. 14a.

In the end, therefore, the government’s authorities
stand for no more than the rather unremarkable notion that
conspirators do not automatically share privacy interests
against searches. The stop of the Simpsons’ car and its
contents was not a search, however, and the virtually
exclusive concern of the United States with privacy interests
is not germane to the Simpsons’ possessory interests
implicated by Officer Fifer’s seizure. Rather, it is their
possession of the contraband -- charged by the indictment,
claimed by the Simpsons, and found by the lower courts --
which suffices to demonstrate that the Simpsons’ own
Fourth Amendment rights were implicated by the seizure,

30

precisely because an illegal seizure violates "possessory
interests where neither privacy nor liberty [is] at stake."
Soldal, 113 S. Ct. at 543.

Ill. THE QUESTION PRESENTED BY THE
PETITION DOES NOT APPLY TO
THE SIMPSONS

The question presented by the United States in its
Petition concerned only “whether membership in a joint~
venture to transport drugs gives co-conspirators a legitimate
expectation of privacy.” Pet. (i).” As this case reaches the
Court with regard to the Simpsons, however, it concerns
only whether they retained property or possessory interests
that afford them the right to challenge a seizure of their car
and its contents, not the privacy interests implicated by a
search. To be sure, the Simpsons also separately contested
the subsequent warrantless search of their locked trunk,
contending that it could not be justified by the consent
obtained from Arciniega during the course of his illegal
detention. Cf. Royer, 460 U.S. at 501. But the district court
ruled that, because the stop was illegal, "we just don’t get to
that issue in this case," Pet. App. 29a, and the court of

® The Petition was concerned only with privacy interests, and it
therefore urged the Court to review this case only because “|t}he
question whether co-conspirators can acquire a legitimate expectation of
privacy in cach other's persons and effects based solely on their joint
participation in a criminal venture is of considerable practical
importance.” Pet. 6. All of the cases that the Petition discussed therein
concerned only privacy interests, and the entire thrust of the Petition’s
argument was that "[a] defendant's role in a conspiracy has no generative
force so as to create a privacy interest that does not otherwise exist.” /d.
at 9. Indeed, the United States concerned itself with only privacy issues
in its argument before the court of appeals. C.A. Brief of Appellant at
15-16.

31

appeals similarly did not address whether the search was

illegal or whether it implicated the Simpsons’ own privacy
interests.”"

Because the privacy issue presented by the government
is irrelevant to the Simpsons, the Court may wish to dismiss
the writ of certiorari as improvidently granted as to them.”
Indeed, the Simpsons’ situation is virtually identical to the
Court’s dismissal in United States v. Quinn, 475 U.S. 791
(1986). In Quinn, the United States also framed the
question of Fourth Amendment standing in privacy terms:
"[wJhether a defendant has a Fourth Amendment
expectation of privacy" arising from his status as "a
co-venturer in a criminal enterprise." /d. at 791 (Burger,
C.J., dissenting). It then became evident that Quinn
similarly challenged a seizure, not a search. And for that
reason the issue on the merits similarly focussed not on

* For that reason, if the court of appeals is reversed, a remand
should leave it to that court to determine in the first instance all issues
related to the legality of the search of the Simpsons’ trunk, including the
Simpsons’ right to contest it.

“ Neither is a conspiracy issue presented with respect to the
Simpsons, whose ownership of the car is established separately from their
participation in a conspiracy. It is perhaps for this reason that, when
pursuing certiorari, the United States in its Reply Brief (at 5) did not
envision reversal with respect to the Simpsons, but merely the remand of
this portion of the case "[i}f the Ninth Circuit's ‘co-conspirator standing’
rule is wrong .. . to have the standing issue as to the Simpsons decided
without reference to that factor." The United States, however, offers no
reason why it should be provided a second opportunity in this regard.
The Simpsons clearly pressed ownership at the suppression hearing, ¢.g.,
T.R. 5/8/90 at 73-74, 76, 81-82, 111-12, 128, and this Court has previously
held that it will not remand a case only to afford a party the second
opportunity the government seeks. Rakas, 439 U.S. at 130-31 n.1.

® The Petition in this case (Pet. 16 & n.7) reviewed the history of
the Quinn litigation.

32

privacy, but on Quinn’s claim that his right to bring a
challenge was predicated on his property interests in the
seized vessel and his possessory interest in the illegal drugs
on board. /d. at 793. These property and possessory
interests were not fairly included in the privacy question that
had been presented, however, and the Court dismissed the
writ.

Here, too, the property and possessory interests
implicated by the seizure of the Simpsons’ car and the
contraband contained therein are not fairly included within
the question presented in the Petition.” For that reason,
the Court may wish to decline the government’s invitation to
address issues related to the Simpsons.

* Nor have these issues been properly presented by the
government's substitution of a new question presented in its Brief (Br.
(i)), which now embraces “property interest{s}.". Rule 24.1(a) of this
Court states that "the bricf may not raise additional questions or change
the substance of the questions already presented,” and Rule 14.1(a) states
that the court will address "[o}nly the questions set forth in the petition,
or fairly included therein.” Property and privacy interests are "different
interests” that are complementary but not subsidiary to one another,
Arizona Vv. licks, 480 U.S. 321, 328 (1987), and for that reason a question
that concerns privacy docs not fairly include property. Cf. Yee v. City of
Escondido, 112 S. Ct. 1522, 1533 (1992) ("a question related to the one
petitioners presented, and perhaps complementary to the one petitioners
presented . .. is not ‘fairly included therein”); Irvine v. California, 347
U.S. 128, 129 (1954).

ome

33

CONCLUSION :

If the writ of certiorari is not dismissed as to the

Simpsons, the judgment of the court of a I
affirmed as to them. sdiaias

Respectfully submitted,

DAVID A. BONO
SHEA & GARDNER
1800 Massachusetts Ave., NW
Washington, DC 20036
(202) 828-2000

Counsel for Respondents

Donald Simpson and Maria Sumpson
(By Appointment of This Court)

February 8, 1993

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0340%3A08. Public record. Not legal advice.