Opposition Brief — Zahn v. Michigan

No. 01-1023

In The re

Supreme Court of the Unifed States

¢

SCOTT ZAHN,

Petitioner,

PEOPLE OF THE STATE OF MICHIGAN,

Respondent.

¢

On Petition For Writ Of Certiorari

To The Michigan Supreme Court

¢

RESPONDENT’S BRIEF IN OPPOSITION

+

ArTHUuR A. Buscu, Prosecutor

JOHN C. SCHLINKER,

Deputy Chief Prosecutor

Counsel of Record

Date A. DeGarmo,

Assistant Prosecuting Attorney

MicHaet A. TESNER,

Assistant Prosecuting Attorney

100 Courthouse

Flint, Michigan 48502

(810) 257-3037

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED FOR REVIEW

1. Should this Court re-evaluate the warrant

requirement of the Fourth Amendment.

2. Whether Petitioner’s Fourteenth Amendment due

process rights were violated when the State of Michigan

took jurisdiction based on criminal acts committed in

Michigan even though Petitioner never physically

entered Michigan.

3. Whether law enforcement agents “created” juris-

diction in Michigan in violation of Petitioner’s Fourteenth

Amendment due process rights. :

ii

TABLE OF CONTENTS

Page

Questions Presented for Review ...............+.. a

Table Of COmbents. ..... cc ccicevcccccssteessanceves.

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ATRUMAENE ... 2 ccc ccccccscccccccccscevsccvvvcseses: a

I. This Court should grant Petitioner’s writ of ce,,_

tiorari limited to re-evaluating the warrarp;

requirement of the Fourth Amendment...... ra

II. Petitioner’s Fourteenth Amendment due proces,,

rights were not violated when the State of Mick, _

igan took jurisdiction based on criminal acy,

committed in Michigan even though Petition¢,,

never physically entered Michigan.......... oe

Ill. Law enforcement agents did not “create” juris.

diction in Michigan in violation of Petitioner,’,

Fourteenth Amendment due process rights... 10

ili

TABLE OF AUTHORITIES

Page

CAsEs

California v. Greenwood, 486 U.S. 35 (1988) ..........-. 7

Carroll v. United States, 267 U.S. 132 (1925)........... 7

Chimel v. California, 395 U.S. 752 (1969) ............ 5, 6

Elkin v. United States, 364 U.S. 206 (1960)............. 5

Harris v. United States, 331 U.S. 145 (1947) ........... 4

Heath v. Jones, 941 F.2d 1126 (11th Cir. 1991)......... 9

McDonald v. United States, 335 U.S. 451 (1948)........ 5

Ross v. United States, 456 U.S. 798 (1982)............. 7

Schneckloth v. Bustamante, 412 U.S. 218 (1973)......... 7

Strassheim v. Daily, 221 U.S. 280 (1911)............... 9

Terry v. Ohio, 392 U.S. 1 (1968)..........- cece eee eeee 7

Trupiano v. United States, 334 U.S. 699 (1948) ....... é& $s

United States v. Archer, 486 F.2d 670 (2nd Cir. 1973) ....11

United States v. Brantley, 777 F.2d 159 (4th Cir.

es ccc eeeeOn eh ebanadhevhas raked odeheyeacs 11

United States v. Coates, 949 F.2d 104 (4th Cir. 1991)....11

United States v. Garrett, 716 F.2d 257 (5th Cir. 1983) .... 11

United States v. Jones, 469 U.S. 478 (1985)............ ae

United States v. Mendenhall, 446 U.S. 544 (1980)....... 8

United States v. Moncini, 882 F.2d 401 (9th Cir.

ee Leak cats russ bees bi vee ss tat eee 9

United States v. Place, 462 U.S. 696 (1983)............. 6

ee

iv

TABLE OF AUTHORITIES - Continued

United States v. Rabinowitz, 339 U.S. 56 (1950)...

United States v. Van Leeuwen, 397 U.S. 249 (1970)

United States v. Wright-Baker, 784 F.2d 161 (3rd Cir.

SO 6 coe kesh cer ee sade bendsunsooeeavitescenes

OTHER AUTHORITIES

Amar, Fourth Amendment First Principles, 107 Harv.

se &. 2. Perec rr Pr rrr ey rrr or

Buffaloe, “Special Needs” and the Fourth Amend-

ment: An Exception Poised To Swallow the Warrant

Preference Rule, 32 Har. C.R.-C.L.L. Rev. 529...

Cardozo, The Nature of the Judicial Process (1921)....

Davies, Recovering the Original Fourth Amendment,

OO DG Ea TO Feo Secs o's Kcbeceseecseeesta

Encyclopedia of the American Constitution, 2d ed.

CUE GS bbedsknagwancewesteuckecdustdeedeen cen

Friedman, A History of American Law, 2d ed. (1985) ...

Jefferson, Thomas, Writings, The Library of Amer-

SS hoi hehe ka te ea daeee sia eee

Wassertstrom and Seidman, The Fourth Amendment

as Constitutional Theory, 77 Geo. L. J. 19 (1988)

STATEMENT OF THE CASE

Our esteemed brother counsel, Mr. O’Rourke, fairly

states the facts of the case. During the course of an

investigation conducted by the Flint Area Narcotics

Group (FANG), James Hall was enlisted to work as a

police agent. Hall had been in the drug trafficking busi-

ness in Michigan prior to cooperating with FANG. He

had known Petitioner for several years. Petitioner served

as his drug supplier. Petitioner had been shipping drugs

to Michigan for several years. Consistent with their estab-

lished past practice, Hall and Petitioner used the same

“code words,” method of contact, payment and shipment

as employed in the instant case.

On February 18, 1997, Hall, in Michigan, telephoned

Petitioner, in Florida, in order to purchase cocaine. Hall

asked if they could “do lunch,” code words indicating

Hall wanted to buy cocaine. Down payment of $3,000 was

requested and sent. A second phone call solidified deliv-

ery details. Cocaine was sent from Petitioner, in Florida,

addressed to Jane Hoelzer, a pseudonym the two men

agreed upon to facilitate their transactions, at 2220 East

Court, Apartment 2, Flint, Michigan. A third Florida-to-

Michigan phone call confirmed receipt of the down pay-

ment. Shipment of the cocaine was scheduled for next

day delivery by noon.

FANG Sergeant Allan McLeod was surveilling 2220

East Court the next day when a Federal Express delivery

person approached with a package. Armed with knowl-

edge of all the above, McLeod, without first obtaining a

search warrant, seized and searched the package and

found the cocaine Hall had ordered.

Se

bd

ARGUMENT

I. This Court should grant Petitioner’s writ of cer-

tiorari limited to re-evaluating the warrant require-

ment of the Fourth Amendment.

This Honorable Court should grant Petitioner’s writ

of certiorari in order to right the wayward course of

Fourth Amendment jurisprudence. Thomas Jefferson

expressed his desire that our na.ion have a Bill of Rights

clear to the average citizen “without the aid of

sophisms.”! Instead, despite an original intent clear in

historical context and unambiguous language, this Court

reduced the Fourth Amendment to a linguistic riddle and

prompted legal writers to observe that this Court “simply

has made a mess of search and seizure law”? and even

sharper criticisim: “The Fourth Amendment today is an

embarrassment.”? Petitioner’s writ is an appropriate

vehicle to drive the Fourth Amendment down its

intended road of reasonableness and grant Mr. Jefferson’s

wish.

1 Jefferson, Thomas, Writings, The Library of America

(1984), p. 915.

2 Wassertstrom and Seidman, The Fourth Amendment as

Constitutional Theory, 77 Geo. L. J. 19, 20 (1988).

3 Amar, Fourth Amendment First Principles, 107 Harv. L. Rev.

757 (1994).

eT

The original intent of the drafters of the Fourth

Amendment is clear from history. The framers wanted

simply to prohibit the use of general warrants. A fram-

ing-era general warrant was based on unparticularized

suspicion of criminal activity, a general belief that laws

(usually customs laws) were being violated. General war-

rants directed the arrest of “suspected persons” or a

search of “suspicious places.”

History reveals no evidence of an intent to require

police officers to obtain a warrant before conducting a

reasonable search. Many factors support this historical

perspective. The common law of the framing era, for

example, permitted warrantless arrests and searches.° No

warrant was required to search ships pursuant to some

statutes. In Colonial America, prior to adoption of the

Fourth Amendment,

[m]Jost jurisdictions instituted general searches

to collect taxes .. . capture felons, or find stolen

merchandise. . . . Conversely, although specific

warrants existed in legal manuals, they were

rare before 1750, thereby indicating that they

were not the intended constitutional successor

to the general warrant.”

“Reasonable” searches were the intended successor to the

general warrant. Even practical historical considerations

4 Davies, Recovering the Original Fourth Amendment, 98

Mich. L. Rev. 547, 558 n. 12.

5 Id. at 576.

6 Jd. at 570.

7 Encyclopedia of the American Constitution, 2d ed. (2000) p.

1098.

such as locating a magistrate in order to issue a warrant

prior to conducting a search argue for the proposition.

The Fourth Amendment text likewise conveys no

intent to require a warrant before conducting a reason-

able search or seizure. The Fourth Amendment consists of

two independent clauses. Distilled to its essence the

Fourth Amendment states that searches and seizures

must be reasonable and general warrants forbidden. On

its face, the Fourth Amendment does not require issuance

of a warrant prior to conducting a reasonable search or

seizure.

Only arbitrary reasoning and creative interpretations

of framing-era history continue to support this Court’s

current application of the Fourth Amendment. Consider,

in Harris v. United States, 331 U.S. 145, 155 (1947), this

- Court held that “we should not permit our knowledge

that abuses sometimes occur to give sinister coloration to

procedures which are basically reasonable.” Harris con-

cluded that a five-hour search of a four-room apartment,

incident to arrest, was reasonable and, therefore, not in

violation of the Fourth Amendment. Thirteen months

later, this Court held that no warrant was required to

arrest a man federal agents observed operating an illegal

still, but curiously a search warrant was required to seize

the still. Trupiano v. United States, 334 U.S. 699, 705 (1948).

With no reference to historical authority, Trupiano

declared that:

[t]o provide the necessary security against

unreasonable intrusions upon the private lives

of individuals, the framers of the Fourth

Amendment required adherence to judicial pro-

cess wherever possible.

Id. Later that same year, this Court continued its revision

of framing-era history, holding that a “search without a

warrant demands exceptional circumstances.” McDonald

v. United States, 335 U.S. 451, 454 (1948). This Court

emphasized that:

[aJbsent some grave emergency, the Fourth

Amendment has interposed a magistrate

between the citizen and the police. .. . The right

of privacy was deemed too precious to entrust

to the discretion of those whose job is the detec-

tion of crime and the arrest of criminals.

Id. at 455-56. A curious conclusion considering fifty years

or more would pass from adoption of the Fourth Amend-

ment until the formation of the modern police force.§

Two years later, the fog lifted and this Court had

clear historical vision, stating that: “it was recognized by

the framers of the Constitution that there were reasonable

searches for which no warrant was required.” United

States v. Rabinowitz, 339 U.S. 56, 60 (1950). Rabinowitz

approved of an hour-and-a-half search of a desk, safe,

and file cabinets incident to lawful arrest. Id. at 59. A

similar reading of the Fourth Amendment was voiced in

Elkin v. United States, 364 U.S. 206, 222 (1960), where this

Court observed that “what the Constitution forbids is not

all searches and seizures, but unreasonable searches and

seizures.”

Cognizant of its self-inflicted lack of integrity in the

area of Fourth Amendment law, Chimel v. California, 395

U.S. 752 (1969), acknowledged that:

8 Friedman, A History of American Law, 2d ed. (1985) p. 287.

[t]he decisions of this Court bearing upon [the

Fourth Amendment] have been far from consis-

tent, as even the most cursory review makes

evident.

Id. at 755. And instead of correcting the recognized incon-

sistency and relying on framing-era history and the

unambiguous language of the Fourth Amendment, Chimel

held that “searches, in the absence of well-recognized

exceptions, may be made only under the authority of a

search warrant.” Id. Respondent submits Chimel, at best,

is an example of what Justice Cardozo observed years

earlier: that a court sometimes must stand firmly “by the

errors of our brethren of the week before, whether [it

relished] them or not.”

Despite this rainbow of precedent, or perhaps

because of it, this Court should grant Petitioner’s writ of

certiorari in order to establish that reasonable searches or

seizures, conducted without a warrant are not a per se

violation of the Fourth Amendment. Where, as here, a

police officer is armed with knowledge approaching near

certainty that contraband drugs will be uncovered in a

package, a search should be permissible simply because it

is reasonable. This Court has approved warrantless

searches, in part, based on an officer’s ability to smell

marijuana. United States v. Jones, 469 U.S. 478, 482 (1985).

And this Court impliedly approved a warrantless seizure

of luggage based on a dog signaling drugs have been

detected in luggage. United States v. Place, 462 U.S. 696,

699 (1983). Surely, Sgt. McLeod’s evidence had more bite

than a dog’s bark.

9 Cardozo, The Nature of the Judicial Process (1921) p. 150.

a

The numerous exceptions this Court has created to

justify its general rule that a warrant is required prior to

conducting a search is itself evidence of the questionable

viability of the general rule. For example, detaining and

searching a suspect based only on “reasonable suspicion”

requires no warrant. Terry v. Ohio, 392 U.S. 1 (1968). No

warrant is required to search garbage placed outside the

curtilage of a private home. California v. Greenwood, 486

U.S. 35 (1988). No warrant is required when probable

cause exists to believe a car contains contraband. Carroll

v. United States, 267 U.S. 132 (1925). No warrant is

required to search containers within a car when probable

cause exists to believe contraband is in the container. Ross

v. United States, 456 U.S. 798, 800 (1982); Wyoming v.

Houghton, 526 U.S. 295, 302 (1999). And no warrant is

required when consent to search is granted. Schneckloth v.

Bustamante, 412 U.S. 218, 219 (1973). Petitioner relies on

United States v. Van Leeuwen, 397 U.S. 249, 253 (1970), but

even there this Court held it was reasonable to seize first-

class mail for 29 hours without a warrant based solely on

a government agent’s suspicion that first-class mail con-

tained contraband coins. This Court created over twenty

exceptions to the warrant requirement.!° The anticipated

federalization of airport security may well necessitate the

broadest exception to date. It is time for the exceptions to

swallow the ill-conceived rule.

10 Exceptions to the warrant requirement are collected in

Buffaloe, “Special Needs” and the Fourth Amendment: An Exception

Poised To Swallow the Warrant Preference Rule, 32 Har. C.R.-C.L.L.

Rev. 529, 530 n. 10 (1997).

Petitioner’s writ of certiorari raises fundamental

Fourth Amendment issues. Particularly since the events

of September 11, 2001, this nation is prepared to embrace

the wisdom of the clear and unambiguous standard the

framers intended for our mutual welfare and safety. As

Cardozo taught, “[t]he final cause of law is the welfare of

society. The rule that misses its aim cannot permanently

justify its existence.”11 The jurisprudential and public

policy implications are of the highest order and consis-

tent with this Court’s Rule 10(c). Petitioner’s writ of

certiorari should be granted, limited to the question of re-

evaluating the warrant requirement of the Fourth

Amendment.

II. Petitioner’s Fourteenth Amendment due process

rights were not violated when the State of Michi-

gan took jurisdiction based on criminal acts com-

mitted in Michigan even though Petitioner never

physically entered Michigan.

Respondent strongly disputes Petitioner’s assertion

that as a result of Petitioner’s actions no “detrimental

effect” occurred in Michigan. Delivery of fifty grams of

cocaine into Michigan is, in and of itself, a “detrir ntal

effect” in Michigan and Michigan “has a com: lling

interest in detecting those who would traffic in eadly

drugs for personal profit.” United States v. Mendenhall, 446

U.S. 544, 561.

11 Cardozo, id. at 66.

It is undisputed that Petitioner telephoned Michigan

and arranged for the delivery of fifty grams of cocaine to

Michigan. It is a settled rule that:

[a]cts done outside a jurisdiction, but intended

to produce and producing detrimental effects

within it, justify a state in punishing the cause

of the harm as if he had been present at the

effect....

Strassheim v. Daily, 221 U.S. 280, 285 (1911). Strassheim

held that a state properly obtained jurisdiction, where a

crime had sufficient and direct repercussions within the

state, even though defendant never entered the state.

The rule of Strassheim is still good law. For example,

the Ninth Circuit recently held that federal jurisdiction

was proper when the crime, or part of the crime, occurred

within the United States. Defendant, a citizen and resi-

dent of Italy, was convicted of mailing child pornography

from Italy to an undercover officer in the United States.

Defendant’s

mailing of child pornography was a continuing -

offense, so that part of the offense was commit-

ted in the United States as his letters traveled

through the mail and were delivered to their

destination, and [the Ninth Circuit] reject[ed

defendant’s] . . . argument that the crime was

complete at the time the letter was deposited in

the mail in Italy.

United States v. Moncini, 882 F.2d 401, 403 (9th Cir. 1989).

The Eleventh Circuit held that when an individual’s crim-

inal acts directly violate the peace, tranquility and laws of

a state, the state may prosecute that individual. Heath v.

Jones, 941 F.2d 1126 (11th Cir. 1991). The Third Circuit has

10

expanded the reach of federal jurisdiction in the area of

drug smuggling. The requirement that an act be done in

the United States is not a necessity.

The purpose of these provisions is to halt smug-

glers before they introduce their dangerous

wares into and distribute them in this country. A

- jurisdictional requirement that an effect occur in

the United States contravenes this purpose... .

United States v. Wright-Baker, 784 F.2d 161, 168 (3rd Cir.

1986). Petitioner’s act of delivering cocaine into Michigan

had a detrimental effect in Michigan. Jurisdiction to pros-

ecute in Michigan was proper and did not violate his

Fourteenth Amendment rights.

III. Law enforcement agents did not “create” jurisdic-

tion in Michigan in violation of Petitioner’s Four-

teenth Amendment due process rights.

Petitioner’s conviction stems from his delivery of

over fifty grams of cocaine into Michigan. Petitioner

argues state agents contrived to manufacture Michigan

jurisdiction and supports his argument with citation to

federal authority that holds acts of a government agent

performed solely for the purpose of creating a connection

to interstate commerce cannot give rise to federal juris-

diction. Each of these cases is significantly distinct from

the present matter. }

The cases upon which Petitioner relies deal with

whether the crimes had a sufficient nexus to interstate

commerce to provide federal jurisdiction. Only where the

interstate aspect of defendant’s criminal conduct was cre-

ated by a law enforcement agent solely for the purpose of

11

obtaining jurisdiction have courts held jurisdiction was

contrived and therefore improper. United States v. Coates,

949 F.2d 104, 106 (4th Cir. 1991); see also United States v.

Brantley, 777 F.2d 159, 161-63 (4th Cir. 1985) (unnecessary

movement of equipment and alcohol through interstate

commerce by government agents to create gambling club

where defendants’ illegal activity occurred wholly within

South Carolina); United States v. Archer, 486 F.2d 670,

681-82 (2nd Cir. 1973) (unnecessary interstate telephone

call placed by government agent). In United States v.

Garrett, 716 F.2d 257 (5th Cir. 1983), federal agents had a

pre-existing out-of-state presence in California and defen-

dant telephoned the agents from Texas seeking money as

part of his illegal operations there. Even though the only

connection to California was the government agents’

presence, the Fifth Circuit held that the interstate com-

merce element of defendant’s criminal conduct “was not

solely furnished by government agents [to obtain jurisdic-

tion] and . . . the government did not attempt to contrive

jurisdiction.” Id. at 267.

In the present matter, police officers took no action

solely for the purpose of creating jurisdiction in Michi-

gan. To the contrary, Petitioner’s ongoing criminal enter-

prise of delivering cocaine to Hall in Michigan created

jurisdiction. Hall contacted Petitioner in his usual man-

ner, placing another order to buy cocaine. Petitioner pur-

posefully made telephone calls to Michigan to arrange

delivery and request payment. Petitioner delivered over

fifty grams of cocaine to Michigan through an overnight

delivery courier.

12

Significantly, law enforcement authorities created no

artificial contacts with Michigan in order to obtain juris-

diction over Petitioner’s criminal activity. No state agent

traveled out of Michigan to seek to draw Petitioner’s

criminal activity into the state, nor did anyone contrive a

contact that did not already exist. Petitioner merely con-

tinued his drug trafficking activity into Michigan and was

caught. Petitioner’s suggestion that the state somehow

manufactured jurisdiction over Petitioner’s illegal act is

unsupported in law or the record. Michigan has jurisdic-

tion to enforce its criminal laws against such criminal

invasions.

Respectfully submitted,

Dated: February 7, 2002

GENESEE CouNTy Prosecutor ARTHUR A. BuscH

100 Courthouse

Flint, Michigan 48502

(810) 257-3037

JoHN C. SCHLINKER

Deputy Chief Prosecutor

Date A. DEGARMO

Assistant Prosecuting Attorney

MicHasEL A. TESNER

Assistant Prosecuting Attorney