Opposition Brief — Kennedy v. United States

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No. 95-1043 1 FEB: 28

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Jn the Supreme Court of the

OCTOBER TERM, 1995

ARRE KENNEDY, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

DREw S. DAYS, Ill

Solicitor General

JOHN C. KEENEY

Acting Assistant Attorney

General

WILLIAM C. BROWN

Attorney

Department of Justice

Washington, D.C. 20530

202) 514-2217

QUESTION PRESENTED

Whether the court of appeals correctly ruled that

narcotics evidence was admissible under the inevita-

ble discovery exception to the exclusionary rule.

(I)

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Nix v. Williams, 467 U.S. 431 (1984) ......................

United States v. Boatwright, 822 F.2d 862 (9th Cir.

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United States v. Woody, 55 F.3d 1257 (7th Cir.),

cert. denied, 116 S. Ct. 234 (1995) ...............ceeeceeeeees

Constitution and statutes:

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(III)

In the Supreme Court of the Anited States

OCTOBER TERM, 1995

No. 95-1043

ARRE KENNEDY, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-18)

is reported: at 61 F.3d 494. The order of the district

court denying petitioner’s motion to suppress (Pet.

App. 19-26) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

August 7, 1995. The court of appeals denied a petition

for rehearing on September 25, 1995. Pet. App. 27.

The petition for a writ of certiorari was filed on

December 26, 1995 (a Tuesday following a Monday

holiday). The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

STATEMENT

Following a conditional guilty plea in the United

States District Court for the Eastern District of

Michigan, petitioner was convicted of conspiring to

possess cocaine with the intent to distribute it, in

violation of 21 U.S.C. 846. He was sentenced to 120

months’ imprisonment, to be followed by five years’

supervised release. The court of appeals affirmed.

Pet. App. 1-18.

1. On July 25, 1993, petitioner flew from Detroit,

Michigan, to Miami, Florida, on Northwest Air-

lines (Northwest). He checked two locked pieces

of luggage, a blue suitcase and a black suitcase.

Northwest mistakenly labeled petitioner’s suitcases

with tags bearing the name of Wesley Kennedy,

a Northwest passenger unrelated to petitioner.

As a result, petitioner’s suitcases were misrouted and

sent to National Airport in Washington, D.C. At

National Airport, Wesley Kennedy, who had flown

from Detroit to Washington, discovered that his

own bag was missing and reported the problem to

Deborah Hawkins-Garner, a Northwest employee.

Hawkins-Garner showed petitioner’s two suitcases to

Wesley Kennedy, who informed her that the suitcases

were not his. Pet. App. 2.

Northwest’s policy regarding lost luggage was to

open the suitcase to check for identification and, if

there was no identification, to inventory the contents.

Pursuant to that policy, Hawkins-Garner decided to

open the suitcases to see if they contained any

identification. She was unable to open the black suit-

case because it had a combination lock: She was able

to open the blue suitcase because it had a lock that

could be opened with a Northwest key. The blue

3

suitcase contained $176,000, which was promptly

reported to the Metropolitan Washington Airport

Authority Police Department. Pet. App. 2-3, 20.

Officer Simon Mantel responded and was later

joined by Sergeant Arthur Taplett. Sergeant Tap-

lett’s suspicions were aroused by a strong odor of

perfume emanating from the black suitcase. Con-

cerned that the suitcase might contain explosives,

Sergeant Taplett had it x-rayed. That process re-

vealed a number of dense, rectangular-shaped objects.

Officer Mantel stayed with the suitcases while

Sergeant Taplett arranged to move the suitcases to

the airport police station. Pet. App. 3.

At that point, Hawkins-Garner decided to open the

black suitcase. After receiving permission from her

supervisor to open the bag, she obtained a hammer and

a screwdriver and asked Officer Mantel to open it for

her. Sergeant Taplett advised Officer Mantel that he

could open the suitcase if Northwest wanted it

opened. Officer Mantel then used the hammer and

screwdriver to force open the lock on the suitcase.

The suitcase was subsequently determined to contain

17 kilograms of cocaine and 77 grams of cocaine base.

Pet. App. 3-4.

Shortly thereafter, Northwest in Washington,

D.C., was notified that petitioner had arrived in

Miami and was looking for his suitcases. Drug

Enforcement Administration agents arranged for a

controlled delivery of the suitcases to petitioner. The

next day, petitioner was arrested after he picked up

the suitcases in Miami and admitted that the

suitcases belonged to him. Petitioner confessed that

he had been trafficking drugs from Miami to Detroit

for several months. A consensual search of peti-

4

tioner’s home produced an additional $225,000 in cash.

Pet. App. 4.

2. Petitioner was indicted on cocaine trafficking

charges and moved to suppress the cocaine seized

from his black suitcase and the indirect fruits of

that search. The district court denied the motion

based on the inevitable discovery exception to the

exclusionary rule Pet. App. 19-26. In denying the

motion to suppress, the district court determined that

absent the illegality, the airport police would have

returned the suitcase to Northwest, which would

have searched it under its standard policy:

The police misconduct in this case was the

warrantless search of the black suitcase, thus the

Court must consider what would have happened

had the illegal search not occurred. Had the

police acted lawfully, once the bag was seized and

it was determined that it posed no danger of

exploding, they would have sought a search war-

rant. The government concedes that under the

facts of this case, it is unlikely that a search

warrant would have been issued. If the police had

been unable to secure a warrant, they would have

been required to return the suitcase to Northwest

Airlines unopened. Northwest would then have

opened the suitcase, pursuant to its lost luggage

policy, in an effort to locate its owner.

Id. at 24 (footnote and citation omitted). Because the

action of Northwest in ‘opening the bag would have

been a “search” by a private entity rather than the

police, the district court concluded that the Fourth

Amendment would not have been violated. Jd. at 25.

Following the denial of his motion to suppress, peti-

tioner entered a conditional plea of guilty to con-

5

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

846, reserving his right to appeal the denial of the

motion.

3. The court of appeals affirmed. Pet. App. 1-18. It

agreed with the district court that the evidence

resulting from the warrantless search of the black

suitcase would inevitably have been discovered by

lawful means. The court of appeals recognized that

the inevitable discovery exception requires proof that

the evidence inevitably would have been acquired

through lawful means had the government mis-

conduct not occurred. Jd. at 7, citing Nix v. Wil-

liams, 467 U.S. 431, 444 (1984). Further, the court

noted that proof of inevitable discovery “involves no

speculative elements but focuses on demonstrated

historical facts,” and that the exception requires the

district court to “determine, viewing affairs as they

existed at the instant before the unlawful search,

what would have happened had the unlawful search

never occurred.” Pet. App. 7.

The court of appeals noted that decisions in other

circuits had announced divergent positions on the

question whether the inevitable discovery exception

requires proof that at the time of the illegal search a

separate independent line of police investigation was

underway. See Pet. App. 8-9. It then ruled that, be-

cause the excéption ultimately turns on the ineluc-

tability of discovery rather than a specific means of

discovery, “the inevitable discovery exception to the

exclusionary rule applies when the government can

demonstrate either the existence of an independent,

untainted investigation that inevitably would have

uncovered the same evidence or other compelling

facts establishing that the disputed evidence in-

evitably would have been discovered.” /d. at 13.

6

Applying that standard, the court of appeals held

that the disputed evidence in this case inevitably

would have been discovered. Pet. App. 13-17. The

court of appeals relied in large measure on the

existence of Northwest’s “routine procedure” in

opening lost luggage for identification purposes. Id.

at 15. The court observed:

Prior to the intervention of the airport police,

Hawkins-Garner had already decided to open the

suitcases pursuant to Northwest’s policy of

opening lost luggage. Even after the airport

police arrived, Hawkins-Garner still thought she

should open the suitcase because she considered it

to be in Northwest’s custody. Hawkins-Garner

testified that she would have opened the suitcase

herself or had another employee to do so if Officer

Mantel had not opened it for her. Therefore, it is

clear that, pursuant to Northwest’s lost luggage

policy, Hawkins-Garner would have opened the

black suitcase and discovered the evidence in a

private search had the airport police not become

involved. Because a private search was inevitable,

the cocaine is admissible pursuant to the in-

evitable discovery exception to the exclusionary

rule.

Id. at 15-16."

* The court of appeals also rejected petitioner’s argument

that the inevitable discovery exception should not apply

because the law enforcement officers might not have relin-

quished control of the black bag to Northwest. If the officers

had maintained custody of the bag to seek a warrant, the court

of appeals pointed out, the officers would have conducted a

search pursuant to that warrant; if a warrant had not issued,

Northwest would have conducted a private search after the

suitcase had been returned. In either case, the court con-

ARGUMENT

1. The inevitable discovery doctrine permits ille-

gally seized evidence to be admitted at trial where the

government establishes “that the information ulti-

mately or inevitably would have been discovered by

lawful means.” Nix v. Williams, 467 U.S. at 444.

Petitioner contends (Pet. 9-13) that the decision of

the court below conflicts with decisions from the

Fifth, Tenth, and Eleventh Circuits that, he sug-

gests, bar the application of the inevitable discovery

exception unless the government can demonstrate the

existence of “a previously initiated independent line

of investigation.” Pet. 10. Although there is some

disagreement among the courts of appeals in the de-

scription of the circumstances in which the inevitable

discovery exception may apply, the present case is not

in conflict with the holding of any other court of

appeals.

Petitioner first relies on United States v. Owens,

782 F.2d 146, 152-153 (10th Cir. 1986), a case involving

an unconstitutional police seizure of cocaine from a

closed bag inside a closed dresser drawer in a motel

room after the occupant had been arrested outside.

The government argued in Owens that the inevitable

discovery exception should apply because the motel

maid’s routine cleaning for the next occupant would

have revealed the contraband. Because “[s]everal

factors suggest[ed] that motel employees performing

routine cleaning’ may not have inevitably discovered

the cocaine,” the court of appeals rejected the

government’s argument. /d. at 153. The factors con-

cluded, a lawful search inevitably would have been conducted,

and the cocaine would have been discovered. Pet. App. 17-18.

8

sidered in Owens included: (1) the possibility that

motel staff might not have found, or opened, the small

closed container of cocaine; (2) that in view of the lack

of any police involvement in routine room cleaning

the motel staff might not have recognized the cocaine

or turned the drugs over to the police; (3) that absent

the illegal search, the occupant might have posted bail

and returned to the motel room before the cleaning

staff; and (4) that a friend of the occupant could have

claimed the closed bag. Those factors led the Owens

court to reject the application of the inevitable

discovery exception because it was “highly specula-

tive” whether discovery of the contraband was

inevitable. Jbid. The decision in Owens does not

conflict with the conclusion of the court below that in

this case, a private’search by Northwest under its

standard procedures was inevitable. See United

States v. Woody, 55 F.3d 1257, 1270 (7th Cir.) (evidence

in automobile would inevitably have been discovered

in subsequent mandatory inventory), cert. denied, 116

S. Ct. 234 (1995); United States v. Horn, 970 F.2d 728,

732 (10th Cir. 1992) (inevitable discovery doctrine

applied where weapons found in an automobile during

a roadside stop would inevitably have been discovered

in a subsequent inventory following impoundment).

Petitioner also relies upon United States v.

Cherry, 759 F.2d 1196 (5th Cir. 1985), in which the

court of appeals wrote that application of the in-

evitable discovery exception requires, among other

things, proof “that the government was actively

pursuing a substantial alternate line of investigation

at the time of the constitutional violation.” Jd. at

1206. Unlike this case and Owens, Cherry did not

involve any question of an inevitable lawful search by

a private party. Rather, the entire investigation in

9

Cherry was conducted by government officers, and

the question presented was whether a lawful search

conducted by those officers was inevitable. Because

of a concern that the exception would “swallow the -

rule” if it allowed otherwise tainted evidence to be

admitted “merely because the police could have

chosen to act differently and obtain the evidence by

legal means,” the Cherry court required not only

proof that the evidence would have been discovered in

any event, but also proof that the police were actively

pursuing a substantial alternate line of investigation

at the time of the misconduct. Jd. at 1205-120.

Cherry thus did not address the circumstances in

which an inevitable private search might allow the

application of the inevitable discovery exception.

Similarly, in United States v. Satterfield, 743 F.2d

827, 845-847 (11th Cir. 1984), the court rejected the

government’s argument that a weapon illegally seized

from under sofa cushions at the defendant’s residence

should have been admitted under the inevitable

discovery exception because it would have been found

in a later warrant-authorized search. Because the

court believed that the police should not be allowed to

forgo obtaining a warrant until after their search has

disclosed the presence of the evidence, it required

that “the police must possess and be actively pur-

suing the lawful avenue of discovery when the

illegality occurred.” Jd. at 847. Asin Cherry, Satter-

field did not resolve the requirements for an applica-

tion of the inevitable discovery exception founded on

the inevitability of a private search.

The court below correctly concluded that the

inevitable discovery exception was applicable in this

case because of the Northwest policy regarding the

opening of lost luggage. The court of appeals appro-

10

priately did not require that a separate and independ-

ent government investigation be in progress at the

time of the police misconduct, but it did require proof

of “compelling facts establishing that the disputed

evidence inevitably would have been discovered.” Pet.

App. 18. That standard was more than adequate to

ensure, in the context of the claim that later events

would have led to a lawful private search, and thus

that the discovery of the evidence was truly inevita-

ble. See United States v. Boatwright, 822 F.2d 862,

864-865 (9th Cir. 1987) (Kennedy, J.) (suggesting that

development of inevitable discovery doctrine proceed

on a “case by case” basis).

2. Petitioner also contends (Pet. 14-21) that the

government did not sufficiently demonstrate that a

lawful search of the black suitcase was inevitable

here. Based on the evidence adduced at the suppres-

sion hearing both the district court and the court of

appeals determined that the contraband in petitioner’s

black suitcase inevitably would have been discovered.

The routine procedure of Northwest to open and in-

ventory lost luggage, a procedure that was in fact

being employed by the Northwest employee on the

scene, fully sufficed in the circumstances here to

establish that the disputed evidence inevitably would

have been discovered. See Pet. App. 13-18. That

factbound determination does not warrant further

review.

11

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

DREW S. DAYS, III

Solicitor General

JOHN C. KEENEY

Acting Assistant Attorney

General

WILLIAM C. BROWN |

Attorney

FEBRUARY 1996