Opposition Brief — Ochoa v. United States

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No. 87-116 ch S wer

Yn the Supreme Court of the United States |

OCTOBER TERM, 1987

JESUS MARIA OCHOA, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

CHARLES FRIED

Solicitor General

WILLIAM F. WELD

Assistant Attorney General

JOSEPH C. WYDERKO

Altorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether petitioner’s arrest and the search of packages

taken from him were supported by probable cause.

(1)

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Arkansas v. Sanders, 442 U.S. 753 (1979) ..............

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Carroll vy. United States, 267 U.S. 132 (1925) ...........

Gerstein v. Pugh, 420 U.S. 103 (1975) .................

Illinois v. Gates, 462 U.S. 213 (1983) ..................

Spinelliv. United States, 393 U.S. 410 (1969) ...........

Oe RR RE rr

United States v. Brigenoni-Ponce, 422 U.S. 873 (1975) ....

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

United States v. Johns, 469 U.S. 478 (1985) .. 2.0.2...

United States v. Place, 462 U.S. 696 (1983) .............

United States v. Ross, 456 U.S. 798 (1982) .............

United States v. Watson, 423 U.S. 411 (1976) ...........

Constitution and statute:

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Re re a

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NAeOCC MO MOARUWNAWUC

Jn the Supreme Court of the Cited States

OCTOBER TERM, 1987

No. 87-1 16

JESUS MARIA OCHOA, PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 2a-3a) is

unreported.

JURISDICTION

The judgment of the court of appeals was entered on

March 25, 1987. A petition for rehearing was denied on

April 29, 1987 (Pet. App. 4a). The petition for a writ of

certiorari was filed on June 29, 1987 (a Monday). The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

STATEMENT

Following a jury trial in the United States District Court

for the Central District of California, petitioner was con-

victed of possessing cocaine with intent to distribute it, in

violation of 21 U.S.C. 841(a)(1). He was sentenced to ten

years’ imprisonment and fined $50,000.

(1)

2

!. Prior to the events at issue here, the police depart-

ment of the City of Santa Ana, California, circulated to

local hotel and motel owners a “Crime Alert” bulletin (see

Pet. App. 20a-23a). The bulletin stated that “the Southern

California area has been inundated by persons who are

smuggling large amounts of high-quality cocaine trom

South American countries” and requested assistance in

identifying such persons (id. at 20a). The bulletin listed 19

characteristics that police officers had found to be typical

of drug smugglers, and it requested that information

about persons exhibiting such behavior be reported to the

police.

On July 8, 1985, employees of the Westin Hotel notified

the Santa Ana police department that two guests at the

hotel — petitioner and Ivan Giraldo—had acted in a man-

ner consistent with the characteristics listed in the bulletin.

The employees reported that two guests wére Latin males

using Florida identification, that they separately arrived at

the hotel without reservations, and that they carried no

luggage. The employees also told the officers that peti-

tioner was driving a white Mercury Cougar rental car.

After meeting with the hotel employees, the law entorce-

ment officers decided to place the two men_ under

surveillance. Pet. App. 5a, 13a-14a; Tr. A89-A100, All4,

A116-A118, A182-A184.

At approximately 6:35 the next morning, police officers

observed petitioner arrive at the hotel in the white Mercury

Cougar. About an hour and a half later, a surveillance ot-

ficer in the hotel lobby, who was using a police radio, saw

petitioner come into the lobby. Petitioner looked directly

at the officer and the radio before leaving. The officer

then moved to an undercover vehicle in the hotel parking

lot, where he again encountered petitioner. Petitioner

looked directly at the officer and turned around to con-

tinue looking at the officer as he walked away. Tr.

A74-A76, A81-A82.

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3

Shortly afterwards, petitioner drove the Mercury Cougar

out of the hotel parking lot to a nearby parking structure. A

few minutes later, petitioner drove out of the parking struc-

ture and proceeded to the shopping mall located across the

street from the Westin Hotel. After parking his car, peti-

tioner walked to a group of pay telephones on the second

level of the shopping mall. He placed between 8 and 10 calls

from a pay telephone and appeared to be using a telephone

paging device. When he finished making the calls, peti-

tioner left the shopping mall and drove back to the Westin

Hotel in the Mercury Cougar. Two other Latin males, Jose

Galindo and Juan Casteno, drove up to the hotel in a silver

Chrysler shortly after petitioner’s return. Tr. A36-A40,

A61-A62, A158-A163.

Approximately 15 minutes later, Galindo and Casteno

left the Westin Hotel in the silver Chrysler and drove to

the shopping mall. At about the same time, petitioner left

the hotel and drove the Mercury Cougar to the mall. The

three men met at the mall entrance, went to a restaurant

located inside the mall, and were joined by Ivan Giraldo,

the man who had checked into the Westin Hotel on the

Same day as petitioner. The four men left the restaurant

together after several minutes and walked through the

mall, often looking around and behind themselves. Pet.

App. I4a-15a; Tr. A21-A22, A41-A45, A163-A165.

After the four men had walked through the mall for 30

to 40 minutes, petitioner and Galindo left the mall

building and got into the silver Chrysler. Petitioner drove

through the parking lot to a parking space near the Sears

store located in the shopping mall. Petitioner got out of

the Chrysler, opened the trunk of the car, briefly looked

inside, and closed the trunk. Petitioner and Galindo then

walked toward the Sears store, but separated before they

entered it. After walking around the store and making a

call from a public telephone, petitioner left the store,

walked back alone to the silver Chrysler, drove the car to

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4

another part of the mall parking lot, and parked next to a

brown Audi automobile. Petitioner got out of the

Chrysler, stood near the rear of the Audi, looked around

very slowly in all directions, and opened the Audi’s trunk.

He then removed two gift-wrapped boxes from the Audi

and placed them in the trunk of the Chrysler. Pet. App.

15a; Tr. A46-A48, A129, A165-A169.

At that point, law enforcement officers approached

petitioner and placed him under arrest. The officers ob-

tained the car keys from petitioner, opened the Chrysler’s

trunk, removed the two gift-wrapped boxes, and took the

boxes to the police station. The boxes were sniffed by a

trained police dog and the dog “alerted,” indicating the

presence of narcotics. Later that night, a magistrate issued

a search warrant authorizing the officers to open the

boxes; approximately 20 kilograms of cocaine were found

in the two boxes. Pet. 4-5; Pet. App. 16a-17a.

2. The district court denied petitioner’s motion to sup-

press, holding that petitioner’s arrest was justified by

probable cause (Pet. App. Sa-9a). The court observed that

the arrest was based on the statements of the hotel em-

ployees—“citizen informants who are traditionally con-

sidered to be trustworthy and reliable, since they have no

reason to contrive information” —and evidence obtained

during the police surveillance (/d. at 6a). The court con-

cluded that the police had, “by their own observations,

established, through objective evidence * * * that there

was probable cause to believe that [petitioner] was in-

volved in committing an offense” (/d. at Ya).

The court cited the “very unusual circumstance of a per-

son who checks into a hotel from another state, trom

Florida, [and] suddenly has access to three different

automobiles in the immediate vicinity” (Pet. App. 6a). To

a highly trained law enforcement agent, the court noted,

that conduct is suspicious. The court stated that “narcotics

traffickers are reluctant to use the telephone which creates

a paper record” and that they use public telephones and

paging devices rather than private telephones, as petitioner

had done in this case. /d. at 6a-7a. Finally, the court

observed that petitioner’s driving was “erratic, suspicious,

and [had] the characteristic of attempting to avoid

surveillance” (/d. at 7a). The court concluded that these

facts, together with the transfer of the two packages from

the Audi to the Chrysler, gave the officers probable cause

to believe that petitioner was engaged in narcotics traffick-

ing (id. at 8a).'

The court of appeals unanimously affirmed in an un-

published order (Pet. App. 2a-3a). It held that “[t}he trial

court did not err in denying [petitioner’s] Motion to Sup-

press physical evidence and there was ample probable

cause to arrest [petitioner]” (/d. at 2a).

ARGUMENT

1. Petitioner contends (Pet. 5-16) that the police of-

ficers lacked probable cause to arrest him. The district

court and the court of appeals correctly rejected that fact-

bound contention.

a. It is well settled that the Fourth Amendment per-

mits police officers to make a warrantless arrest ina public

place on probable cause. United States v. Watson, 423

U.S. 411 (1976); see also Gerstein v. Pugh, 420 U.S. 103,

113-114 (1975). Probable cause exists where “the facts

available * * * at the moment of the arrest would ‘warrant

a man of reasonable caution in the belief’ that an offense

haf[d] been committed.” Beck v. Ohio, 379 U.S. 89, 96

(1964) (quoting Carroll v. United States, 267 U.S. 132,

The court held that probable cause also justified the subsequent

warrantless search of the Chrysler and that the warrant to search the

packages was properly issued (Pet. App. 8a-9a).

162 (1925)). The determination whether probable cause ex-

ists is based on the “totality of the circumstances.” ///inois

v. Gates, 462 U.S. 213, 234-235 (1983). Moreover, “it is

clear that ‘only the probability, and not a prima facie

showing, of criminal activity is the standard of probable

cause.’ ” Jd. at 235 (quoting Spinelli v. United States, 393

U.S. 410, 419 (1969)).

In view of the totality of the circumstances in this case,

the police officers’ conclusion that petitioner was engaged

in a narcotics transaction was eminently reasonable. Peti-

tioner arrived from Florida without luggage and checked

into the Westin Hotel without having made a reservation.

After seeing a police officer in the lobby the next morning,

petitioner sought to evade surveillance by driving his Mer-

cury Cougar into a parking structure and taking a cir-

cultous route to a shopping mall located across the street

from the hotel. Even though a telephone Was available to

petitioner in his room, his sole apparent purpose for

visiting the mall was to use the public telephones.

Petitioner’s subsequent rendezvous with three other in-

dividuals was equally suspicious: the four men wandered

around the mall apparently looking for police surveil-

lance. Petitioner did not drive his own car when he left the

mall, but rather got into the silver Chrysler and moved it

to another part of the mall parking lot. Upon exiting the

car, petitioner and Galindo checked the contents of the

trunk. After entering the mall separately, petitioner and

Galindo met again near the entrance. Petitioner ‘then

moved the Chrysler to yet another area of the parking lot

and looked around in all directions before opening the

trunk of the brown Audi. After the trunk was opened,

petitioner transferred the two boxes that were covered

with wrapping paper.

These facts are more than sufficient to warrant a

reasonable belief that petitioner was probably engaged in a

drug transaction. Indeed, it is difficult to conceive of any

other explanation for this sequence of bizarre activity.

Petitioner’s arrest was therefore supported by probable

cause.

b. Petitioner’s contention (Pet. 6-12) that his arrest

was based solely on a “drug courier” profile is plainly

wrong. To be sure, the Santa Ana police department had

distributed a “Crime Alert” bulletin (Pet. App. 20a-23a) to

local motels and hotels requesting their assistance in iden-

tifying possible narcotics smugglers based on a list of in-

dicators of criminal activity. When petitioner and Giraldo

checked into the Westin Hotel, hotel employees responded

to that request for assistance by notifying the police

department that petitioner and Giraldo matched some of

the characteristics listed in the bulletin, /.e., they were

Latin males who had arrived from Florida without reser-

vations and without luggage. However, the police did not

arrest petitioner on the basis of that information; rather,

the officers decided to initiate surveillance of petitioner

and Giraldo. As the district court observed, the officers

established “by their own observations * * * that there was

probable cause to believe that [petitioner] was involved in

committing an offense” (Pet. App. 9a).

¢. Petitioner’s contention (Pet. 12-16) that probable

cause was lacking because his conduct was consistent with

innocent behavior is likewise without merit. Indeed, the

district court found that petitioner’s activities were “hardly

the type of conduct that a casual citizen —a casual traveler,

would be expected to engage in” (Pet. App. 6a). In any

event, probable cause requires not an actual showing of

criminal activity, but only a probability or substantial

chance of such activity. Ostensibly innocent behavior

therefore may properly be considered in the probable

cause determination because “the relevant inquiry is not

whether particular conduct Is ‘innocent’ or ‘guilty,’ but the

degree of suspicion that attaches to particular types of

noncriminal acts” (///inois v. Gates, 462 U.S. at 244 n.13).

And, as trained law enforcement officials, the officers

were entitled to evaluate petitioner’s activities in light of

their experience and expertise. See, e.g., United States v.

Cortez, 449 U.S. 411, 418 (1981); United States vy.

Brignoni-Ponce, 422 U.S. 873, 884-885 (1975); Terry v.

Ohio, 392 U.S. 1, 27 (1968). The mere fact that some ot

petitioner’s behavior could be explained in a manner con-

sistent with innocence did not foreclose the police officers

from concluding —correctly, as it turns out —that in view

of all of the circumstances, petitioner was probably en-

gaged in criminal activity.

2. Petitioner’s contention (Pet. 17-19) that the search

warrant for the two gift-wrapped boxes was invalid is

plainly without merit. His entire argument is based on the

erroneous supposition that the arrest was not justified by

probable cause. Pet. 17 (“the taint of [the] illegal arrest

was not cured by the later issuance of a search warrant”).

Because petitioner’s arrest was supported by probable

cause, the search of the two boxes was not the fruit of an

illegal arrest.

Moreover, because the police officers had probable cause

to believe that the two boxes that were transferred from the

Audi to the Chrysler contained contraband, they were en-

titled to seize those boxes from the trunk and to detain

them while they applied for a search warrant. United

States v. Ross, 456 U.S. 798, 824 (1982); Arkansas v.

Sanders, 442 U.S. 753, 759-766 (1979).2 A trained narcotics

> Petitioner mistakenly relies on United States v. Place, 462 U.S.

696 (1983), in arguing that the boxes were detained for an

unreasonable period of time before the search warrant was obtained.

In Place, the Court held that a 90-minute detention of luggave in the

absence of probable cause was unreasonable as part of a limited in-

vestigalive stop at an airport. Because the police officers here already

had probable cause to arrest petitioner and probable cause to believe

the boxes contained contraband, the detention of the boxes pending

the prompt application for and issuance of a warrant to examine the

9

detection dog sniffed the boxes at the police station and in-

dicated that both contained controlled substances. Ac-

cordingly, as the district court correctly found (Pet. App.

8a), the search warrant for the boxes was amply supported

by probable cause.

CONCLUSION

[he petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

WILLIAM F. WELD

Assistant Attorney General

JOSEPH C. WYDERKO

Attorney

() | BE k 1987

nts did not violate the Fourth Amendment. United States \

Place, 462 U.S. at 701. The district court found that there was no

inreasonable delay in obtaining the warrant, which was issued that

same dav. Ct. United States Johns, 469 U.S. 478, 486-488 (1985)