Opposition — Shirokey v. City of Cleveland Heights

a)

2

No. 92-717 i VE

Jn the Supreme Court of the Ginited States

OCTOBER TERM, 1992

JOSEPH EMILE SISSLER, PETITIONER

iB

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

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, III

Assistant Attorney General

SEAN CONNELLY

Attorney

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTIONS PRESENTED

1. Whether the Confrontation Clause was violated

when officers whom petitioner called to testify at a pre-

trial suppression hearing asserted their Fifth

Amendment privilege against compelled self-incrimina-

tion.

2. Whether a federal magistrate properly issued a

search warrant conditioned on an informant’s making a

controlled delivery of marijuana to a suspect’s house,

where the suspect had agreed during tape-recorded con-

versations to accept the marijuana.

3. Whether evidence validly seized from petitioner

during a warrant-authorized search must be suppressed

because the officers exceeded the scope of the warrant by

seizing items belonging to third parties.

4. Whether petitioner’s statements to the police were

properly admitted at trial.

(I)

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Andresen v. Maryland, 427 U.S. 463 (1976) uu...

California v. Green, 399 U.S. 149 (1970) ..........0..0c.0...

Coy v. Iowa, 487 U.S. 1012 (1988) ue

Dutton v. Evans, 400 U.S. 74 (1970) wo.

Illinois v. Gates, 462 U.S. 213 (1988) ...........c..ec eee.

Maryland v. Craig, 110 S. Ct. 3157 (1990) ......0...c.

McCray v. Illinois, 386 U.S. 300 (1967) .........0..c..

Minnesota v. Olson, 495 U.S. 91 (1990) wc.

Pennsylvania v. Ritchie, 480 U.S. 39 (1987) ....0.000.....

Rivera v. United States, 928 F.2d 592 (2d Cir. 1991) .....

United States v. Borromeo, 954 F.2d 245 (4th Cir.), cert.

RE Ws PR, MUTE. CUIIIED cccescecoccocteccsnencccsancnasenses

United States v. Decker, 956 F.2d 773 (8th Cir. 1992)....

United States v. Hale, 784 F.2d 1465 (9th Cir.), cert.

lS , __ n

United States v. Heldt, 668 F.2d 1238 (1982), cert.

denied, 456 U.S. 926 (D.C. Cir. 1982) .........................

United States v. Hendricks, 743 F.2d 653 (9th Cir. 1984),

cert. denied, 470 U.S. 1006 (1985) «0.0.0.0... eee

United States v. Kimble, 719 F.2d 1253 (5th Cir. 1983),

cert. denied, 464 U.S: 1073 (1984) ........ccccccceceeeeeeees

United States v. Lambert, 887 F.2d 1568 (11th Cir.

Aeterna di nad bciinid slides aihhaideniesdsihainbnncéasaadennes

United States v. Matlock, 415 U.S. 164 (1974) .......00.....

United States v. Medlin, 842 F.2d 1194 (10th Cir. 1988)...

(IIT)

8,9

12, 13

IV

Cases—Continued:

United States v. Rettig, 589 F.2d 418 (9th Cir. 1978)......

United States v. Wylie, 919 F.2d 969 (5th Cir. 1990).......

United Siates v. Young, 877 F.2d 1099 (1st Cir. 1989)....

Waller v. Georgia, 467 U.S. 39 (1984) ....... eee

Constitution and statute:

U.S. Const. :

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In the Supreme Court of the Giited States

OCTOBER TERM, 1992

No. 92-717

JOSEPH EMILE SISSLER, 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. 1-34) is

unpublished, but the judgment is noted at 966 F.2d 1455

(Table). The opinions and orders of the district court

(Pet. App. 35-55, 56-77) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on

June 10, 1992. On August 19, 1992, Justice Stevens ex-

tended the time for filing a petition for a writ of certio-

rari to and including November 7, 1992. The petition for

a writ of certiorari was filed on October 23, 1992. The ju-

risdiction of this Court is invoked under 28 U.S.C.

1254(i).

(1) :

STATEMENT

After a conditional guilty plea in the United States

District Court for the Western District of Michigan, pe-

titioner was convicted of attempted possession of mari-

juana with intent to distribute it, in violation of 21

U.S.C. 846. The district court sentenced petitioner to 57

months’ imprisonment, to be followed by three years’ su-

pervised release. Pet. App. 90. The court of appeals

affirmed. Jd. at 1-34.

1. On January 10 and 11, 1990, Robert Baldori and an

informant discussed a marijuana transaction. Baldori

told the informant that he would take delivery of the

marijuana on January 15, 1990. Based on tape recordings

of the conversations and other information concerning

Baldori’s prior marijuana dealings, a federal magistrate

judge issued a warrant on January 12, 1990, for the

search of Baldori’s residence. The warrant authorized

the seizure of marijuana, marijuana proceeds in the form

of U.S. currency, and various records relating to mari-

juana transactions and proceeds. The warrant was ex-

pressly conditioned on a successful delivery of marijuana

by the informant to Baldori’s residence. Pet. App. 2-3,

12-13, 40-41.

On January 15, 1990, the informant delivered 88 pounds

of marijuana to Baldori. While the informant was inside

Baldori’s residence, officers watching the house saw pe-

titioner drive up and go inside. The informant left the

house shortly after midnight. He confirmed having de-

livered the marijuana to Baldori, but said he had not spo-

ken with petitioner. Pet. App. 3.

After the informant successfully made the controlled

delivery, some two dozen federal and local officers exe-

cuted the search warrant. When the officers entered the

— — —

3

house after first announcing their presence, they saw

petitioner and Baldori throwing garbage bags of mari-

juana out a rear door. In the course of the search, the of-

ficers found a travel bag containing $130,000 in cash and

a briefcase containing some additional cash. The officers

continued to search the residence for more than five

hours. While the search was being conducted, the offi-

cers advised petitioner of his Miranda rights. After

signing a written acknowledgement of those righis, peti-

tioner agreed to talk with the officers. Petitioner admit-

ted he had intended to use the cash in his travel bag to

buy marijuana from Baldori. Pet. App. 3-4; Gov’t C.A.

Br. 6.

2. Following three days of hearings, the district court

denied petitioner’s motion to suppress the cash and his

incriminating statements. Pet. App. 35-46. The court

found that the magistrate issuing the warrant had “a

substantial basis for concluding that there was probable

cause to find marijuana at the Baldori residence once it

was delivered by the informant.” Jd. at 42 (citing [llinois

v. Gates, 462 U.S. 213, 238-239 (1983)). The court rejected

petitioner’s claim that the warrant’s description of the

items to be seized was overbroad. Id. at 42-43. The court

specifically held that the officers properly had opened pe-

titioner’s overnight bag and briefcase as part of the war-

rant-authorized search. Jd. at 44-46.

The court also denied petitioner’s motion to suppress

the incriminating statements he made to officers during

the search. Pet. App. 46-54. The court found that peti-

tioner had waived his Miranda rights and made the

statements voluntarily. /bid. The court observed that

petitioner was a college graduate with prior experience

in the criminal justice system who, during a lengthy

conversation with the officers, “freely and openly dis-

4

cussed the Latin American policy of the Bush

Administration, the war on drugs, recent magazine arti-

cles, [petitioner’s] mother, and [his] employment with

the National Institute[s] of Health.” Jd. at 53. The court

specifically found, contrary to petitioner’s testimony,

that petitioner had not requested an attorney until the

end of the interview. /d. at 47-49. Instead, the court

found that “no question concerning the need for counsel

was asked by [petitioner] until the end of the interroga-

tion.” Id. at 48. “At that point,” the court found, “the

questioning was stopped as is required by Miranda and

its progeny.” Ibid.

3. After entering a conditional guilty plea, but before

sentencing, petitioner moved to reopen the suppression

hearing. Petitioner’s motion was based on newly discov-

ered evidence indicating that the local officers had ex-

ceeded the scope of the warrant by, among other things,

seizing slides and photographs of Baldori’s girlfriend

that were later shown around the office. As a result of

those actions, several local officers were placed under

investigation and two officers were charged with crimi-

nal offenses in state court. The district court reopened

the suppression proceeding by granting “a hearing on

the issue of whether the conduct of the officers who exe-

cuted the search warrant exhibited a ‘flagrant disregard’

for its limitations.” At the reopened hearing, petitioner

called several officers who declined to testify by invoking

the Fifth Amendment privilege against compulsory self-

incrimination. Pet. App. 5-6, 58-59.

Following the reopened suppression hearing, the dis-

trict court again denied petitioner’s motion to suppress.

Pet. App. 56-77. The court held that, while suppression

of even legitimately seized evidence might be appropriate

where the searching officers flagrantly disregard the

5

limitations of a warrant by conducting a general search,

the record in this case did not support such a finding. /d.

at 64-65. The court held that many of the challenged

items (7.e., numerous documents and computer disks be-

longing to Baldori) had properly been seized pursuant to

the warrant. Id. at 65-69. The court found that “several

items whose seizure cannot be justified on the grounds of

practicality were taken by law enforcement officers.” Jd.

at 69. Among the improperly seized items, according to

the court, were slides and photographs of Baldori’s girl-

friend, Canadian currency belonging to Baldori’s girl-

friend, and a computer printer and facsimile machine be-

longing to Baldori. Jd. at 69-70. The court declined to

find that the officers flagrantly disregarded the warrant,

however, and it held that a “search does not become in-

valid simply because some items not mentioned by the

warrant are seized.” Jd. at 70-71. The court explained

that “[t]his is especially true where, as in the present

case, the items outside the scope of the warrant are not

going to be used as evidence against the defendant.” /d.

at 71. The court also rejected petitioner’s claim that his

Sixth Amendment right to confront witnesses was vio-

lated when the officers petitioner called as witnesses at

the hearing invoked their Fifth Amendment rights and

declined to testify. Pet. App. 72-74.

4. The court of appeals affirmed. Pet. App. 1-34. The

court first held that petitioner’s Sixth Amendment right

to confront witnesses was not violated when several offi-

cers invoked their Fifth Amendment rights and declined

to testify at the suppression hearing. /d. at 6-8. The

court explained that the officers were not “witnesses

against” petitioner within the meaning of the Sixth

Amendment, because it was petitioner who called them

and they offered no testimony at all. /d. at 7. In any

6

event, the court noted, this Court consistently has re-

ferred to the Confrontation Clause as a “trial right,” id.

at 8, and “has rejected Confrontation Clause challenges

to the use of incompetent testimony during suppression

hearing[s],” id. at 7-8. .

The court of appeals then rejected petitioner’s chal-

lenges to the issuance and scope of the warrant. The

court held that petitioner had standing as an overnight

guest in Baldori’s house to challenge the search. Pet.

App. 9-11 (citing Minnesota v. Olson, 495 U.S. 91 (1990)).

But the court upheld the magistrate judge’s de-

termination that there would be probable cause to search

the house once Baldori accepted delivery of the mari-

juana on January 15, 1990. Pet. App. 11-16. The court

explained that some courts have required that the con-

traband be on a “sure course” to the place to be searched

when the warrant is issued, while other courts simply

require that there be probable cause to believe that the

contraband will be on the premises when the warrant is

executed. /d. at 13-15. The court found that it “need not

decide” between those formulations because “[t]he

anticipatory warrant in this case is valid under either

standard.” /d. at 15. Based on the facts that the inform-

ant previously had arranged to deliver the marijuana to

Baldori on January 15th and that the police controlled

the marijuana in question, the court concluded that

“there was sufficient assurance that marijuana would be

delivered to Baldori’s home to satisfy both the sure

course and probable cause standards.” /d. at 15-16."

! The court also rejected several other Fourth Amendment

claims. It held that the officers executed the warrant within a rea- P

sonable time after the controlled delivery (id. at 16-17); that the of-

ficers properly searched petitioner’s briefcase and bag while exe-

cuting the warrant (id. at 17-20); and that the search warrant was

7

The court also rejected petitioner’s claim that sup-

pression of everything seized during the search was re-

quired because the police flagrantly exceeded the scope

of the warrant. Pet. App. 25-33. After reviewing various

items seized during the search (id. at 26-30), the court

agreed with petitioner that “some of the officers appar-

ently engaged in egregious misconduct while searching

the Baldori home,” id. at 32. The court observed, how-

ever, that “the evidence incriminating [petitioner], the

cash found in his overnight bag and briefcase, was within

the scope of the warrant.” Jd. at 30. The court thus ex-

plained that “even if we were to find that the officers

searched Baldori’s home in flagrant disregard of the

warrant’s scope, we would find that the officers did not

violate [petitioner’s] rights.” Jd. at 32. The court con-

cluded that “deterrence would not be served by allowing

[petitioner] to benefit from the alleged violation of

Baldori’s and [Baldori’s girlfriend’s] Fourth Amendment

rights.” Id. at 32-33.

Finally, the court rejected petitioner’s claim that his

incriminating statements should have been suppressed.

Pet. App. 33-34. The court noted that the arresting of-

ficer’s testimony “indicates that [petitioner] engaged in

a wide-ranging conversation for approximately two

hours until he indicated that he wished to speak with an

attorney” and that “(t]he interrogation then stopped.”

Id. at 33-34. The court found no evidence of coercion in

the record but instead concluded that “the evidence

indicates that [petitioner] voluntarily waived his

not facially overbroad in most respects but that, even if it should

have limited the dates of records to be seized, the remedy simply

would be to sever the invalid portion of the warrant from the re-

mainder (id. at 20-25).

8

Miranda rights and agreed to talk with the officers.”

Id. at 34.

ARGUMENT

1. Petitioner contends (Pet. 21-31) that his Sixth

Amendment right “to be confronted with the witnesses

against him” was violated when several officers invoked

their Fifth Amendment right against compelled self-in-

crimination at the suppression hearing. The court of ap-

veals correctly rejected that contention.

This Court’s decisions consistently refer to the right

id confrontation as a right that applies “at trial.”

Maryland v. Craig, 110 S. Ct. 3157, 3164 (1990). See Coy

v. Jowa, 487 U.S. 1012, 1016 (1988) (Confrontation Clause

grants right to face-to-face confrontation of “those who

appear and give evidence at trial”) (quoting California v.

Green, 399 U.S. 149, 175 (1970) (Harlan, J., concurring));

Pennsylvania v. Ritchie, 480 U.S. 39, 52, 54 n.10 (1987)

(plurality opinion) (“[t]he opinions of this Court show

that the right to confrontation is a trial right,” and “the

Court normally has refused to find a Sixth Amendment

violation when the asserted interference with cross-ex-

amination did not occur at trial”); Dutton v. Evans, 400

U.S. 74, 89 (1970) (plurality opinion) (right of confronta-

tion “advance[s} a practical concern for the accuracy of

the truth-determining process in criminal trials”).

As these cases indicate, the Confrontation Clause does

not apply to pretrial suppression hearings. In United

States v. Matlock, 415 U.S. 164 (1974), the Court held that

the Confrontation Clause did not prohibit a police officer

from testifying at a suppression hearing about hearsay

statements made by an informant. The Court relied on

its prior holding in McCray v. Illinois, 386 U.S. 300

(1967), which “specifically rejected the claim that defen-

9

dant’s right to confrontation under the Sixth

Amendment and Due Process Clause of the Fourteenth

Amendment had in any way been violated.” 415 U.S. at

175. The Court observed that, in McCray, “[t]he

Government would have been obligated to produce the in-

former and to put him on the stand had it wanted to use

his testimony at defendant’s trial, but we sustained the

use of his out-of-court statements at the suppression

hearing.” Jd. at 174.

Even if the Confrontation Clause applied at pretrial

suppression hearings, petitioner’s confrontation rights

would not have been violated because the officers he

sought to examine were not “witnesses against him”

within the meaning of the Sixth Amendment. Petitioner

does not contend that any statements or testimony of

those officers were offered against him, but instead

claims that his own inability to call the officers pre-

vented him from showing that they flagrantly exceeded

the scope of the warrant.’ Pet. 21, 29-30. Petitioner cites

no authority for his extraordinarily broad reading of the

Confrontation Clause, which is contrary to its plain

language.

In any event, petitioner could not show prejudice even

if his claim otherwise were valid. The court of appeals

agreed with petitioner that “some of the officers appar-

ently engaged in egregious misconduct while searching

the Baldori home.” Pet. App. 32. The court thus ac-

cepted as true the facts that petitioner sought to estab-

lish through the officers’ testimony, but nevertheless

held that petitioner was not entitled to suppression.

2 Petitioner’s reliance (Pet. 24-25) on United States v. Kimble,

719 F.2d 1253, 1257 (5th Cir. 1983), cert. denied, 464 U.S. 1073

(1984), is thus doubly flawed. That case involved a government

witness who (1) testified against the defendant (2) at trial.

10

Consequently, the alleged denial of confrontation was of

no significance.

2. Petitioner next contends (Pet. 31-35) that the fed-

eral magistrate improperly issued a warrant conditioned

on the informant’s successful delivery of the marijuana

to Baldori’s residence. Petitioner does not contest the

legality of anticipatory warrants in general. Every fed-

eral court of appeals that has considered the question

has held that anticipatory warrants may be issued in ap-

propriate cases. See United States v. Wylie, 919 F.2d

969, 974 (5th Cir. 1990) (upholding such a warrant and

noting that “five other circuit courts of appeals have ap-

proved of anticipatory search warrants”). Indeed, where

officers anticipate that a controlled delivery will occur in

a residence, they should be encouraged to seek advance

judicial approval rather than relying on exigent circum-

stances to justify a warrantless search.

There is no basis for further review of petitioner’s

fact-bound claim that probable cause was lacking here

because the marijuana was not on a “sure course” for de-

livery to Baldori’s residence. At the time the warrant

was issued, Baldori had already agreed to accept the

marijuana on January 15th, and the delivery was within

the control of the officers and their cooperating in-

formant.*

3 Some courts have emphasized that greater assurances exist

where probable cause is “based on a delivery controlled by the gov-

ernment” than when it is based on “a delivery expected in the or-

dinary course of the drug organization’s operations.” Rivera v.

United States, 928 F.2d 592, 603 (2d Cir. 1991). Contrary to peti-

ticner’s suggestion (Pet. 34-35), the fact that the police had not yet

obtained the marijuana to be used in the controlled delivery does

not defeat probable cause. In the case principally relied on by peti-

tioner (Pet. 34-35), the authorities had no control over whether the

11

3. Petitioner next contends (Pet. 35-44) that the cash

seized from his bags should have been suppressed be-

cause the officers flagrantly disregarded the warrant’s

limitations when they seized other personal property be-

longing to Baldori and his girlfriend. That claim is pre-

cluded by Waller v. Georgia, 467 U.S. 39 (1984). In

Waller, the Court summarily rejected a Fourth

Amendment claim identical to the one raised by peti-

tioner in this case. 467 U.S. at 43-44 n.3. Petitioners in

Waller cited some of the same lower court decisions

cited by petitioner for the proposition that when police

seize items in flagrant disregard of the warrant’s limita-

tions “the entire fruits of the search, and not just those

items as to which there was no probable cause to support

seizure, must be suppressed.” Jd. at 44 n.3 (citing

United States v. Heldt, 668 F.2d 1238, 1259 (D.C. Cir.

1981), cert. denied, 456 U.S. 926 (1982); United States v.

Rettig, 589 F.2d 418, 423 (9th Cir. 1978)). In rejecting

that claim, the Court explained:

Petitioners do not assert that the officers exceeded

the scope of the warrant in the places searched.

Rather, they say only that the police unlawfully

seized and took away items unconnected to the prose-

cution. The Georgia Supreme Court found that all

items that were unlawfully seized were suppressed.

In these circumstances, there is certainly no re-

drugs would end up in the home of the suspect. See United States

v. Hendricks, 743 F.2d 653 (9th Cir. 1984), cert. denied, 470 U.S.

1006 (1985) (package containing drugs was being held at airport

and there were no assurances suspect would claim it and bring it

back to his residence). Compare United States v. Hale, 784 F.2d

1465, 1468-1469 (9th Cir.) (distinguishing Hendricks in holding that

“a controlled delivery pursuant to a warrant issued earlier is, in

this situation, permissible”), cert. denied, 479 U.S. 829 (1986).

12

quirement that lawfully seized evidence be sup-

pressed as well.

467 U.S. at 44 n.3 (citing Andresen v. Maryland, 427

U.S. 463, 482 n.11 (1976) and other cases).

In this case, the officers did not exceed the scope of the

warrant with respect to the places they searched. The

court of appeals held that the officers properly searched

petitioner’s briefcase and bag while executing the war-

rant. Pet. App. 17-20. Under Waller, there is thus no

basis for suppressing the lawfully seized evidence even

though the officers may have flagrantly disregarded the

warrant’s limitations when they seized other evidence.

Notwithstanding Waller, the Tenth Circuit has held

that “[wJhen law enforcement officers grossly exceed the

scope of a search warrant in seizing property, the par-

ticularity requirement is undermined and a valid war-

rant is transformed into a general warrant thereby re-

quiring suppression of all evidence seized under that

warrant.” United States v. Medlin, 842 F.2d 1194, 1199

(1988). This case presents no occasion to resolve the

tension between Medlin and Waller. Even assuming the

validity of the rule of total suppression adopted by the

Tenth Circuit in Medlin, the court of appeais correctly

4 Apart from Medlin, federal courts of appeals consistently have

declined to suppress evidence legitimately seized pursuant to a

warrant simply because the police improperly seized other items

not authorized by the warrant, although some courts continue to

leave open the possibility of total suppression if the search was

conducted in flagrant disregard of the warrant’s limitations. See,

e.g., United States v. Decker, 956 F.2d 773, 778-779 (8th Cir. 1992);

United States v. Borromeo, 954 F.2d 245, 246-247 (4th Cir.), cert.

denied, 112 S. Ct. 3012 (1992); United States v. Lambert, 887 F.2d

1568, 1572-1573 (11th Cir. 1989); United States v. Young, 877 F.2d

1099, 1105-1106 (1st Cir. 1989).

13

held that petitioner is not entitled to relief. Unlike in

Medlin, where the Tenth Circuit expressly held that

“Medlin’s Fourth Amendment rights were violated by

the seizure and removal of the items” not covered by the

warrant (842 F.2d at 1198), the items improperly seized

in this case did not belong to petitioner. While

petitioner’s status as an overnight guest carried with it

“a legitimate expectation of privacy in his host’s home,”

Minnesota v. Olson, 495 U.S. 91, 98 (1990), it did not give

him any property interest in items that belonged to

Baldori and his girlfriend. Petitioner thus is seeking

suppression not to remedy any unreasonable invasion of

his own privacy interests but rather to remedy an

allegedly unreasonable invasion of third parties’ prop-

erty interests. The rule of Medlin, whatever its valid-

ity, does not extend that far.

4. Finally, petitioner challenges (Pet. 44-48) the lower

court factual findings that he voluntarily waived his

Miranda rights and that the police ceased questioning

him as soon as he indicated a desire to speak with an at-

torney. The district court’s findings on these issues

were based on credibility determinations following a

lengthy evidentiary hearing. Petitioner has failed to

show that the district court’s factual findings were

clearly erroneous. There is no basis for further review

of that fact-bound issue.

14

CONCLUSION

The petition for a writ of certiorari should be denied.

‘

Respectfully submitted.

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, III

Assistant Attorney General

SEAN CONNELLY

Attorney

DECEMBER 1992