Brief for the Respondent in Opposition — Karp v. United States

Iu the Supreme Court of the United States

OcToBeR TERM, 1974

No. 74-1192

LEON KARP, PETITIONER

Vv.

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. 1-4) is

reported at 508 F.2d 1122.

JURISDICTION

The judgment of the court of appeals was entered on

December 4, 1974, On February 28, 1975, the court of ap-

peals denied petitioner’s motion to file an untimely

petition for rehearing. The petition for a writ of certio-

rari was filed on March 19, 1975, and is therefore substan-

tially out of time under Rule 22(2) of the Rules of this Court.

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

: 1254(1).

(1)

2

QUESTIONS PRESENTED

1. Whether United States v. McCormick, 502 F.2d

281 (C.A. 9), which applied Fourth Amendment warrant

requirements to seizures of property subject to forfeiture,

should be given retroactive application by the Ninth Cir-

cuit.

2. Whether the court below properly construed its prior

decision in United States v. McCormick, supra.

3. Whether Carroll v. United States, 267 U.S. 132, or

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

warrantless seizure, with probable cause, of a vehicle for

forfeiture to the United States.

CONSTITUTIONAL PROVISION AND STATUTES INVOLVED

The Fourth Amendment to the United States Consti-

tution and 49 U.S.C. 781 and 782 are set out in Pet. App.

15-16.

STATEMENT

Following a jury trial in the United States District

Court for the Central District of California, petitioner was

convicted on both counts of an indictment charging the

possession of counterfeit Federal Reserve notes and plates

suitable for printing counterfeit notes, in violation of 18

U.S.C. 472 and 474. He was sentenced to a term of three

years’ imprisonment.

1. On July 24, 1973, petitioner entered a sporting goods

store and made a small purchase, giving the store clerk a

$20 bill (Tr. 105, 114-115).' Noticing that the bill was

counterfeit, the clerk detailed another employee to follow

Tr.” refers to the reporter’s official transcript of petitioner's

trial. “R.A.” refers to the record lodged with the court of appeals.

3

petitioner from the store (Tr. 115-116). The employee

observed petitioner getting into a gold colored Cadillac

and took down the vehicle’s license number (Tr. 102-103,

110). This information was given to the Secret Service,

which found that the Cadillac was registered to petitioner

(Tr. 72).

On July 26 Secret Service agents drove to petitioner's

place of business, observed petitioner’s 1968 gold Cadillac

parked nearby (Tr. 71-72) and placed the vehicle under

surveillance. Approximately 25 minutes later, a man

matching the description of the person who had passed

the counterfeit note emerged from the building, entered

the Cadillac, and started the engine (Tr. 73, 239). The

agents arrested petitioner and seized his vehicle pursuant

to the forfeiture statute, 49 U.S.C. 782 (Tr. 73-74; R.A. 15).

There was probable cause to believe the vehicle was sub-

ject to forfeiture because of its use in petitioner’s counter-

feiting activities; there was not, however, probable cause

to believe that, at the moment of its seizure, it was being

so used (see Pet. App. 2).

A Secret Service agent impounded the Cadillac. While

making an inventory of the vehicle’s contents he discov-

ered a wallet in the glove compartment (Tr. 74). The

wallet contained 56 counterfeit Federal Reserve notes, 34

of which were similar to the note passed at the sporting

goods store (Tr. 74-75; R.A. 15-16). During a more thor-

ough search of the car, a number of negatives used in

the printing of counterfeit notes were discovered in a box

in the back seat (Tr. 76-77; R.A. 16). Both the counter-

feit notes and the printing paraphernalia were admitted

into evidence at petitioner’s trial.

4

2. On July 17, 1974, the Ninth Circuit decided United

States v. McCormick, 502 F.2d 281 (Pet. App. 5-14). Over-

ruling prior Ninth Circuit precedent, the court of appeals

in McCormick held that the Fourth Amendment requires

officers to obtain a warrant prior to seizing a vehicle for

forfeiture to the United States. The court below declined

to apply McCormick retroactively to petitioner’s case

(Pet. App. 2-4).

ARGUMENT

1. Petitioner argues that the rule enunciated in McCor-

mick should be applied retroactively. This question is

relevant only within the Ninth Circuit. Ordinarily it is for

the court of appeals to determine the meaning and appli-

cability of its own precedents. There is, therefore, no ques-

tion of general applicability requiring review by this Court.

In any event, the decision of the court of appeals is

correct.

The decision of a court usually should be accorded

prospective application if the court has announced “a

new principle of law * * * [which] overrulf[es] clear past

precedent on which litigants may have relied” (Chevron

Oil Co. v. Huson, 404 U.S. 97, 106).2 Under this test

the decision below is correct; the court expressly discarded

prior cases, concluding that “they no longer state good

law” (McCormick, supra, 502 F.2d at 285).

Moreover, McCormick represented a departure from

principles long accepted by other courts of appeals. This

Court has recognized the special legal status of property

subject to forfeiture (United States v. Stowell, 133 U.S. 1,

16-17) and has distinguished between seizures for the pur-

pose of forfeiture and seizures for gathering evidence

2Petitioner contends (Pet. 7) that the definition of a “new rule”

contained in United States v. Bowen, 500 F.2d 960, 975 (C.A. 9),

certiorari granted, 419 U.S. 824 (“the decision must either (1) over-

rule clear past precedent or (2) disrupt a practice long accepted and

widely relied upon”), conflicts with the definition in Chevron Oil Co.,

supra. But the court below did not allude to or rely upon the Bowen

definition, and by either definition it could properly conclude that

McCormick announced a new rule.

5

(Boyd v. United States, 116 U.S. 616, 623). All other

courts of appeals to consider the matter have held that

no warrant is required to seize a vehicle for forfeiture.

United States v. Troiano, 365 F.2d 416, 418-419 (C.A. 3),

certiorari denied, 385 U.S. 958; United States v. Trotta,

401 F.2d 514, 516 (C.A. 4), certiorari denied sub nom.

Genovese v. United States, 394 U.S. 908; United States

v. McKinnon, 426 F.2d 845, 849-850 (C.A. 5), certiorari

denied, 400 U.S. 868; United States v. White, 488 F.2d

563, 564-566 (C.A. 6); O'Reilly v. United States, 486

F.2d 208, 210-211 (C.A. 8), certiorari denied, 414 U.S.

1043; United States v. Stout, 434 F.2d 1264, 1266-1267

(C.A. 10). The holding in McCormick therefore was “a

clear break with the past” (Desist v. United States, 394

U.S. 244, 248) that “effected a decisional change

in attitude” from one that had long prevailed (Gosa v.

Mayden, 413 U.S. 665, 673).

This Court has consistently recognized that the Fourth

Amendment would not be served by retroactive applica-

tion of the exclusionary rule, which is a “procedural weapon

that has no bearing on guilt” (Linkletter v. Walker, 381

U.S. 618, 638). The McCormick rule “is calculated to pre-

vent, not to repair. Its purpose is to deter [future conduct]

* * * by removing the incentive to disregard” the constitu-

tional guarantee (United States v. Calandra, 414 U.S.

338, 347 (quoting Elkins v. United States, 364 U.S. 206,

217)). The prophylactic rule created by McCormick could

not affect conduct that had occurred prior to its announce-

ment, and consequently should be applied prospectively

only. Linkletter v. Walker, supra, 381 U.S. at 637.

2. Petitioner also contends that the court below failed

properly to interpret its earlier decision in McCormick

This is a matter to be resolved within the court of appeals,

and presents no conflict among the circuits requiring

consideration by this Court.

6

3. Petitioner finally contends that the Ninth Circuit’s

decision in McCormick was compelled by this Court’s

prior decisions in Carroll v. United States, 267 U.S. 132,

and Coolidge v. New Hampshire, 403 U.S. 443, so that

the proper date for “retroactivity” analysis was the date of

decision of Coolidge. But the plurality opinion in Coolidge

does not support such an argument; Coolidge involved a

search of a car for the purpose of gathering evidence, and

the car was, at the time of its search, in the driveway

of the defendant’s home. Here, by contrast, the Secret

Service agents seized petitioner’s car from a public place

for forfeiture to the United States. Under 49 U.S.C. 782,

when a car has been used for certain purposes its title

vests in the United States, and the Secret Service agents

therefore were seizing property which, they had probable

cause to believe, was the property of the United States.’

If they were incorrect, and were interfering with a legit-

imate proprietary interest of petitioner, that interference

could be rectified in subsequent judicial proceedings. In

Coolidge, however, the interference was with defendant’s

privacy interest, and rectification at a later date would

be difficult if not impossible. This Court has never in-

validated a probable cause seizure of a vehicle from a

public place, and it therefore is not accurate to contend

that Coolidge either compelled or foreshadowed the result

in McCormick. Cf. Cardwell v. Lewis, 417 U.S. 583; Cady

v. Dombrowski, 413 U.S. 433, 446-447; Chambers v.

Maroney, 399 U.S. 42, 51-52.

3Once the agents had properly seized the vehicle for forfeiture, they

were entitled to conduct an inventory search and to make use of

any contraband or evidence discovered. Cooper v. California, 386 U.S.

58.

7 =

CONCLUSION

For the foregoing reasons it is therefore respectfully

submitted that the petition for a writ of certiorari should

be denied.

RoserT H. Bork,

Solicitor General.

JOHN C. KEENEY,

Acting Assistant Attorney General.

JEROME M. Feit,

RoBerRT J. ERICKSON, |

Attorneys.

JuNE 1975.