Memorandum — Habig v. United States

Nl Supreme Court, U. S.

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In the Supreme Court of the United States

OCTOBER TERM, 1973

CHRISTO JOHN JOSSEFIDES, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

ROBERT H. Bork,

Solicitor General,

Department of Justice,

Washington, D.C. 20530.

In the Supreme Court of the United States

OCTOBER TERM, 1973

No. 73-1149

CHRISTO JOHN JOSSEFIDES, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

Petitioners challenge the warrantless search of their

vehicles. They also allege that probable cause was

lacking for the search of suitcases which were found in

the trunks of the vehicles.

Following a jury trial in the United States Dis-

trict Court for the Southern District of Texas, petitioners

were convicted of conspiracy to possess and possession

of marijuana with intent to distribute, in violation

of 21 U.S.C. 846 and 841(a)(1). Petitioner Jossefides

Was sentenced to four years’ imprisonment with a special

paroie term of three years on each count, the sentences

to run concurrently. Petitioner Bourque was sentenced to

consecutive terms of one year’s imprisonment with a spe-

cial parole term of three years on count one and five years”

imprisonment with a special parole term of two years

(1)

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on count two. The sentence imposed on count two was

suspended and Bourque was placed on probation with

supervision for five years. Petitioner Cortese was sen-

tenced to concurrent terms of five years’ imprisonment

and was fined $500 on each count with four years and

eight months suspended and with a special parole term

of two years on each count. He was also placed on pro-

bation with supervision for five years.

Special Agent Beaupre of the Customs Agency Ser-

vice, McAllen, Texas, testified that he commenced sur-

veillance of petitioners on September 23, 1972. On Sep-

tember 30, 1972, he observed petitioner Jossefides and

co-defendant Ables at the Ramada Inn in McAllen, Texas,

and the Fontana Motel in Mission, Texas (Tr. 67-68).!

On October 22, 1972, he observed petitioners Bourque

and Cortese at the Sheraton Fairway Hotel in McAllen,

Texas, within five miles of the Mexican border. They

arrived at approximately 8:00 p.m. in a white-over-tan

Plymouth (Tr. 69). At approximately 10:30 p.m., peti-

tioner Jossefides and co-defendant Ables arrived in a two-

tone brown Oldsmobile, parked next to the Plymouth, and

entered room 163 (Tr. 70). Within half an hour, Lazaro

Gonzalez, a known trafficker in narcotics, arrived in a

late model blue Chevrolet and entered room 163 (Tr.

70-71). Thereafter, petitioner Jossefides, Gonzalez, and

co-defendant Ables came out of the room, opened the

trunk of the Oldsmobile, took four standard size black

and red plaid suitcases from the trunk, and placed them

into the trunk of the Chevrolet (Tr. 71-72). Later in the

evening more suitcases were transferred from the room

to the Oldsmobile. Petitioner Cortese and his wife there-

after departed in the loaded Oldsmobile vehicle (Tr. 76).

“Tr.” refers to the transcript of the proceedings at trial con-

tained in two consecutively paginated volumes.

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On the following morning, petitioner Bourque left in

a Plymouth Fury with Texas license plates (Tr. 20. 59,

79) and proceeded to the Holiday Inn in Harlington, Texas,

where petitioner Jossefides had registered in rooms 253

and 255 and where petitioner Cortese subsequently regis-

tered in room 163 (Tr. 20-21, 79-80). Petitioner Bourque

occupied room 121 (Tr. 80). At approximately 1:30 p.m..

petitioner Jossefides and co-defendant Ables left their

rooms. Ables went to petitioner Bourque’s room, and

Jossefides went to the Oldsmobile parked in the Holiday

Inn. which was the same car observed in McAllen on the

previous night. Ables then entered the Plymouth, and he

and petitioner Jossefides left in the two vehicles (Tr.

82-83).

Ables returned at approximately 6:00 p.m. and

parked in front of room 121 (Tr. 83). After visiting with

one Jerry Rooker, Ables departed from the hotel in

a blue Chevrolet (Tr. 86).

On the following morning at approximately 1:40

a.m.. Ables returned and backed the Chevrolet into a

space opposite room 121 (Tr. 87, 89). As he opened the

door, agent Beaupre observed objects in the back seat and

saw Ables arranging a blanket over them. At approxi-

mately 2:35 a.m., petitioner Jossefides returned in the

Oldsmobile and backed the car into a spot next to the

Chevrolet (Tr. 88).

Agent Beaupre, accompanied by Agent Vandever,

went to inspect the two vehicles. The agents detected

the odor of marijuana emanating from the trunks of

the vehicles (Tr. 89, 166). Agent Vandever testified that

at approximately 3:30 a.m. on October 24, he crawled

through the bushes and then between the two vehicles

parked in the Holiday Inn lot and put his nose down

close to the trunk area and smelled marijuana in great

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quantity in the Chevrolet and the Oldsmobile (Tr.

165-167). Agent Vandever then positioned himself in some

bushes eight feet from the rear of the vehicles and camou-

flaged himself under some leaves (Tr. 164-165).

At approximately 8:00 a.m. Ables went to the Ply-

mouth and backed it into a position next to the Chev-

rolet (Tr. 95). Thereafter Rooker came out of his room

and moved the Plymouth to the other side of the

Oldsmobile. Rooker and Ables then opened the trunks

of the cars and began transferring suitcases from one

car to another (Tr. 98, 169). The suitcases were of the

same description as those observed earlier in McAllen,

which had been transferred into the Oldsmobile (Tr. 98).

Rooker removed a spare tire and rolled it toward

Agent Vandever’s position of concealment. He then

removed another spare and began to hand-roll it toward

Agent Vandever. Rooker rolled the tire over Agent Van-

dever’s left elbow at which time Agent Vandever, feeling

sure the discovery of his hiding place was imminent,

immediately proceeded to arrest Rooker and then Ables

(Tr. 169-171). The vehicles were searched, and the suit-

cases were found to contain marijuana (Tr. 104-105).

Shortly thereafter, Agent Beaupre entered room 121

through an open door and arrested petitioner Bourque.

Upon leaving room 121, petitioner Cortese approached

the scene and was arrested by Agent Beaupre (Tr. 100-

102). Agent Beaupre then arrested Jossefides in his

room (Tr. 103). All of the arrested suspects were given

Miranda warnings.

The suspects were then taken to the Customs Agency

Service office in Brownsville, where they were again

advised of their rights (Tr. 222-223). After Cortese had

been so advised, he staved that he had been recruited

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to transport the marijuana for $2,000 (Tr. 225). Josse-

fides also stated that his purpose in the McAllen area

Was to obtain marijuana (Tr. 121).

Petitioners contend that the warrantless search of the

vehicles violated the Fourth Amendment.’ The search,

however, was properly made upon probable cause under

exigent circumstances. A review of the record shows that,

as the surveillance continued, the agents progressively

obtained probable cause to believe that petitioners were

in possession of marijuana. During the surveillance, peti-

tioners were observed in the company of known narco-

tics dealers and were seen loading and unloading an ex-

cessive amount of luggage at two motels in separate

towns near the border. They were also seen exchanging

vehicles. Moreover, in the early morning hours on the

day of their arrest two of the agents approached the

vehicles and detected the odor of what appeared to be

a large quantity of marijuana. At this point, the agents

had probable cause to believe that the vehicles carried

contraband.

The officers did not search the vehicle as soon as pro-

bable cause appeared, because they sought to apprehend

all of the individuals involved and at the same time to

insure their own safety. This was a wholly legitimate

aim, which violated no rights of petitioners. The of-

ficers were not obliged to cease their investigation as

soon as they possessed the minimum evidence required

to support a search or arrest. See Hoffa v. United States,

385 U.S. 293, 310.

The officers halted their investigation, however, when

it became evident that their surveillance had been de-

“The ensuing discussion assumes, arguendo, that each of the

petitioners has standing to challenge the search of the vehicles

and the suitcases.

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tected. Two of the suspects were near vehicles which

could have been immediately mobilized. At that point, it

was no longer possible to await the arrival of the

other suspects before making an arrest; an immediate

search was required to prevent evidence from being lost

or destroved. Since there was then insufficient time to

obtain a warrant, it was proper for the agents to search

the vehicles, which could have been moved.’ Chambers

v. Maroney, 399 U.S. 42, 51-52; Carroll y. United States,

267 U.S. 132, 153: see Cady v. Dombrowski, 413 U.S.

433. Moreover, as the above statement of the evidence

shows, there was clearly probable cause to search the

suitcases.*

It is therefore respectfully submitted that the petition

for a writ of certiorari should be denied.

RoperT H. Bork,

Solicitor General.

May 1974.

‘We note that the trunks of the vehicles were open and that

the contraband laden suitcases were plainly visible. Accordingly

the suitcases were not the product of a search. In any event,

we would argue as we have in our amicus brief in Cardwell v.

Lewis, No. 72-1603, argued March 18, 1974, that a warrant is

not required generally to search an automobile. A copy of that

brief is being sent to petitioners. Since, however. there were

exigent circumstances present here, there is no need to hold this

case pending the decision in Cardwell.

*Petitioners do not appear to allege that in these circumstances

a Warrant was required to search the suitcases. Such a claim, as

we show in our memorandum in opposition to the pending petition

for certiorari in Valen v. United States, No, 72-1727, would be

without merit. A copy of that memorandum is being sent to peti-

tioners,

DOJ-1974-04