Opposition Brief — Martinez-Fabela v. United States

No. 87-1494

In the Supreme Court of the Gnited States

OCTOBER TERM, 1987

JOSE RAMON MARTINEZ-FABELA AND ISMAEL CORRAL,

PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

CHARLES FRIED

Solicitor General

JOHN C. KEENEY

Acting Assistant Attorney General

GEOFFREY R. BRIGHAM

Altorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

1. Whether stopping all vehicles at a roadblock set up

to check drivers’ licenses violates the Fourth Amendment.

2. Whether the search of petitioners’ truck was sup-

ported by probable cause and consent.

3. Whether the trial court was required to question

each potential juror individually about pretrial publicity.

4. Whether the trial court sentenced petitioner

Martinez-Fabela on the basis of unreliable information in

the presentence report.

(1)

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Burkett v. State, 271 Ark. 150, 607 S.W.2d 399 (1980) ...

Delaware v. Prouse, 440 U.S. 648 (1979) ...............

State v. Walker, 93 N.M. 769, 605 P.2d 1168 (1980) .....

United States v. Alderete, 546 F.2d 68 (Sth Cir. 1977) ....

United States v. Burnett, 791 F.2d 64 (6th Cir. 1986) .....

United States v. Colacurcio, 659 F.2d 684 (Sth Cir. 1981),

cert. denied, 455 U.S. 1002 (1982) ..................

United States v. Loucks, 806 F.2d 208 (10th Cir. 1986) ...

United States v. Martinez-Fuerte, 428 U.S. 543 (1976) ...

United States v. Mayo, 646 F.2d 369 (9th Cir.), cert.

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

Wimberly v. Superior Court, 16 Cal. 3d 557, 547 P.2d

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Constitution, statutes and rules:

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N.M. Stat. Ann. (1978 & Supp. 1987):

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§ 66-5-16 (& Supp. 1987) .....................2..

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Fed. R. Crim. P.:

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In the Supreme Court of the Gnited States

OCTOBER TERM, 1987

No. 87-1494

JOSE RAMON MARTINEZ-FABELA AND ISMAEL CORRAL,

PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1-15) is

reported at 823 F.2d 1389.

JURISDICTION

The judgment of the court of appeals was entered on

July 13, 1987. A petition for rehearing was denied on

January 6, 1988 (Pet. App. 21-22). The petition for a writ

of certiorari was filed on March 7, 1988 (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 District of New Mexico, petitioners Martinez-

Fabela and Corral were convicted of possession with in-

tent to distribute cocaine, in violation of 21 U.S.C.

841(a)(1) and 18 U.S.C. 2 (Pet. App. 2). Martinez-Fabela

(1)

2

was sentenced to 15 years’ imprisonment, and Corral was

sentenced to 10 years’ imprisonment (Pet. 22).

1. On April 17, 1986, New Mexico State Police officers

Norman Denton and Clifford Frisk set up a roadblock on

a state highway near Hobbs, New Mexico, to check

drivers’ licenses, registrations, and car insurance (Pet.

App. 4).' In accordance with standard procedure, Officers

Denton and Frisk sought and received permission from

their supervising officer to establish the roadblock (ibid.).

The officers parked their patrol cars facing west in the

eastbound lane, and they placed a stop sign in the middle

of the road. The officers stopped all eastbound traffic,

with the exception of the delivery trucks from a local

supermarket (ibid.). The officers did not stop the super-

market trucks because they knew from a previous

roadblock that the drivers of those trucks had all the re-

quired logbooks, cab cards, and insurance papers (ibid.).

The officers stopped all other vehicles at the roadblock

and asked the drivers for their licenses (ibid.).

2. Petitioner Martinez-Fabela, who was driving a rented

truck with petitioner Corral as his passenger, was stopped

at the roadblock (Pet. App. 4). As Martinez-Fabela rolled

down his window, Officer Denton smelled the odor of

marijuana in the truck (ibid.). Officer Denton asked

Martinez-Fabela for his driver’s license and the truck ren-

tal agreement; Martinez-Fabela complied and also showed

the officer an expired National Guard identification card

(ibid.). Martinez-Fabela said that he and Corral were on

their way to Atlanta to deliver furniture (id. at 4-5).

To determine whether Martinez-Fabela or Corral had

more marijuana with them, Officer Denton asked

Martinez-Fabela to pull the truck over to the side of the

' Petitioners suggest (Pet. 6) that “drug detection” was the true pur-

pose of the roadblock. As the court of appeals recognized (Pet. App.

8-9), however, the record does not support their contention.

3

road (Pet. App. 5). Martinez-Fabela and Corral got out of

the truck, and Officer Frisk joined them. After Officer

Denton told Officer Frisk why he had requested Martinez-

Fabela to pull the truck over, Officer Frisk asked

Martinez-Fabela for permission to look in the cargo com-

partment of the truck (ibid.). Martinez-Fabela gave his

permission, and Officer Frisk began a search (ibid.). Of-

ficer Denton then asked Corral whether he had been

smoking marijuana; Corral admitted that he had (ibid.).

Officer Denton asked Corral for permission to look inside

a suitcase that was behind a seat in the truck. Corral

agreed, and the search disclosed $1,000 in $20 bills (id. at

6).

The officers then decided to search thoroughly the con-

tents of the truck (Pet. App. 6). Because it was very windy,

Officer Denton offered petitioners a choice between

unloading the truck at the side of the road or going to a

police station in Hobbs to permit a drug-detecting dog to

sniff the contents of the truck (id. at 6-7). Petitioners

chose to accompany the officers to the police station. At

the station, Martinez-Fabela signed a consent-to-search

form to corroborate his earlier oral consent (id. at 7). The

drug-detecting dog then entered the truck and tried to

reach some cardboard boxes that were packed underneath

some furniture. The officers opened the boxes, discovered

approximately 474 pounds of cocaine, and arrested

Martinez-Fabela and Corral (ibid.).

3. The district court denied petitioners’ motion to sup-

press the cocaine. The district court heid that the

roadblock was constitutional (Pet. App. 16), that the of-

ficers had probable cause to search the truck (id. at 16-17),

and that petitioners consented to the search at the police

station (id. at 18).

The court of appeals affirmed. In holding that the

roadblock was constitutional, the court noted that it “was

4

established in a systematic manner to stop vehicles in a

pattern which protected the public from the officers’ un-

bridled discretion” (Pet. App. 9). The court of appeals

also held that the officers had probable cause to search the

truck and that petitioners voluntarily consented to the

search (id. at 11-14). Finally, the court of appeals rejected

Martinez-Fabela’s contentions that the district court erred

by not asking prospective jurors individually about

pretrial publicity (id. at 3 n.1) and by considering

unreliable information in the presentence report (id. at

14).

ARGUMENT

1. Petitioners renew their contention (Pet. 22-30) that

the roadblock set up by the New Mexico State Police

violated the Fourth Amendment. That argument is

meritless.

The Court in Delaware v. Prouse, 440 U.S. 648 (1979),

approved the type of roadblock used in this case. In

Prouse, the Court held that the police may not randomly

stop vehicles without reasonable suspicion. The Court

noted, however, that the police are free to develop

“methods for spot checks that involve less intrusion or that

do not involve the unconstrained exercise of discretion.

Questioning of all oncoming traffic at roadblock-type

stops is one possible alternative” (id. at 663 (footnote

omitted)).

Here, the officers set up the roadblock to check licenses,

registrations, and insurance. The officers stopped ail

vehicles at the roadblock except for trucks from a par-

ticular supermarket; thus, they did not exercise individual

discretion in determining whom to stop. Moreover, the

role of the officers at the roadblock was very limited. They

asked each driver for his license, registration, and proof of

insurance, all of which a driver must possess under state

law.? Because the roadblock in this case was limited,

routine, and related to valid public interests, it satisfied

the standard set forth by this Court in Prouse. As the

Court noted in United States v. Martinez-Fuerte, 428 U.S.

543, 560-561 n.14 (1976), the practice of stopping

automobiles briefly to check compliance with motor-use

regulations “is accepted by motorists as incident to

highway use.”

2. Petitioners also contend (Pet. 36-39) that the state

police officers had no authority to search their truck. That

contention is wrong because the search was supported by

both probable cause and petitioners’ consent.

The courts of appeals agree that the presence of mari-

juana smoke or other evidence of personal drug use in the

passenger compartment of a vehicle establishes probable

cause to believe that drugs are concealed in other parts of

the vehicle. See United States v. Loucks, 806 F.2d 208, 209

(10th Cir. 1986); United States v. Burnett, 791 F.2d 64, 65,

66-67 (6th Cir. 1986); United States v. Alderete, 546 F.2d

68, 69 (Sth Cir. 1977).4 Accordingly, Officer Denton’s

detection of marijuana odor gave him probable cause to

search petitioners’ truck.

? See N.M. Stat. Ann. §§ 66-3-13 (registration), 66-5-16 (license),

66-5-229(C) (proof of insurance) (1978 & Supp. 1987).

> Petitioners cite (Pet. 30-36) a series of state court decisions

discussing roadblocks used for enforcement of drunk-driving laws.

Those roadblocks required field officers to use their discretion in stop-

ping vehicles or their subjective judgment in determining the sobriety

of drivers. In contrast, a check for drivers’ licenses does not involve

the officers’ subjective judgment, and the officers in this case stopped

all unfamiliar vehicles without exception. The type of roadblock

established in this case was therefore much less likely to result in an

abuse of discretion. See Delaware v. Prouse, 440 U.S. at 657.

* Petitioner cites (Pet. 39) several state cases that distinguish be-

tween searches of the passenger compartment of a car or van and

6

In addition, petitioners consented to the search of the

cargo compartment of their truck. Officer Frisk asked

Martinez-Fabela for permission to look in the back of the

truck, and Martinez-Fabela consented (Pei. App. 5).

Likewise, Officer Denton received Corral’s consent to

look inside the truck (id. at 6). The officers could have im-

mediately opened the cardboard boxes in the truck. But

the officers gave petitioners the option of having the truck

searched with the help of a drug-sniffing dog at a nearby

police station. Petitioners elected that option.

Petitioners contend (Pet. 47) that their consent was in-

valid because Martinez-Fabela did not sign a consent form

until about an hour and a half after the initial stop. The

timing of the signing of the consent form, however, does

not undermine the voluntariness of the consent. The form

was signed long after the consent was given because the

consent form was produced only after the truck was taken

to the police station in accordance with petitioners’ choice

to have the search conducted there rather than alongside

the highway.

3. Petitioners also assert (Pet. 49-51) that the district

court erred by not asking each prospective juror in-

dividually about the effect of pretrial publicity. The court

searches of the trunk or storage area based on evidence of marijuana

use in the passenger compartment. See Burkett v. State, 271 Ark. 150,

607 S.W.2d 399 (1980); Wimberly v. Superior Court, 16 Cal. 3d 557,

$47 P.2d 417, 128 Cal. Rptr. 641 (1976); State v. Walker, 93 N.M.

769, 605 P.2d 1168 (1980). These cases all predate this Court’s decision

in United States v. Ross, 456 U.S. 798 (1982), where the Court held

that if probable cause justifies the search of a lawfully stopped vehi-

cle, “it justifies the search of every part of the vehicle and its contents

that may conceal the object of the search” (id. at 825). Having prob-

able cause to believe that the truck contained marijuana, the officers

were therefore justified in examining not only the passenger compart-

ment of the truck, but the cargo area as well.

7

of appeals, however, properly held that the district court

did not abuse its discretion in that regard.

Federal Rule of Criminal Procedure 24(a) gives a district

court broad discretion to determine the scope and method

of voir dire; that discretion includes whether jurors should

be questioned collectively or individually. See United

States v. Colacurcio, 659 F.2d 684, 689 (Sth Cir. 1981),

cert. denied, 455 U.S. 1002 (1982). Individual examination

of prospective jurors is not required when the defendant

makes only unsupported allegations of prejudicial pretrial

publicity or when the publicity does not create a signifi-

cant potential for prejudice. See, e.g., United States v.

Colacurcio, 659 F.2d at 689; United States v. Mayo, 646

F.2d 369, 373-374 (9th Cir.), cert. denied, 454 U.S. 1127

(1981). Here, petitioners offered nothing more than

general allegations of pretrial publicity. In his motion for

individual questioning (at 2), Martinez stated that there

was “extensive pre-trial publicity,” and during the voir dire

Corral asserted that the case “generated a lot of publicity

at the time that the defendants were arrested and the

seizure was made, which necessarily resulted in a lot of

newspaper coverage and matters like that” (6/2/86 Tr.

18). Petitioners, however, submitted no evidence or

documentation to support their claims. The district court,

therefore, did not abuse its discretion by not questioning

each prospective juror individually.

4. Lastly, Martinez-Fabela contends (Pet. 51) that the

district court violated his right to due process because the

court allegedly used unreliable information at Martinez-

Fabela’s sentencing hearing. The record does not support

that claim.

> Each of the cases that petitioners cite as calling for individual

questioning (Pet. App. 49-51) invoived significant pretrial publicity of

the kind not shown by petitioners to be present here.

8

At the sentencing hearing, Martinez-Fabela challenged

the statements in his presentence report that he possessed

substantial amounts of cocaine and that large amounts of

money had been found in his apartment. The district court

stated on the record, pursuant to Fed. R. Crim. P.

32(c)(3)(D), that it did not consider those allegations in im-

posing sentence (Pet. App. 14). Although the district court

later mentioned that information in discussing Martinez-

Fabela’s financial assets, the court was clear that it was not

considering that information as bearing on Martinez-

Fabela’s sentence (8/29/86 Tr. 326). And, contrary to the

assertion in the petition (at 51), the district court never

stated that it was conditioning its “non-consideration” of

the presentence statements on Martinez-Fabela’s not

presenting any evidence in mitigation.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

JOHN C. KEENEY

Acting Assistant Attorney General

GEOFFREY R. BRIGHAM

Altorney

MAY 1988

.: US. GOVERNMENT PRINTING OFFICE: 1988— 202-037/60464