Opposition Brief — Maldonado Espinosa v. United States

No. 92-1081

ee

In the Supreme Court of the Gnited States

OCTOBER TERM, 1992

JOSE MALDONADO ESPINOSA AND

ARMEN MALDONADO ESPINOSA. PETITIONERS

STATES OF AMERICA

PETITION FOR A WRIT OF CERTIORARI

HE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WILLIAM C. BRYSON

Acting Solicitor General

JOHN C. KEENEY

Acting Assistant Attorney General

KATHLEEN A. F ELTON

Attorney

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTIONS PRESENTED

1. Whether the district court clearly erred in finding

that petitioner José Maldonado consented to the search

of his luggage and that petitioner Carmen Maldonado

disclaimed ownership of her luggage.

2. Whether petitioners waived their claim that

Carmen Maldonado was questioned while in custody

before having been advised of her Miranda rights.

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Bumper v. North Carolina, 391 U.S. 543 (1968) ..............

Florida v. Royer, 460 U.S. 491 (1983) ..........ccccseeeeeeeeeeeeees

Goodman v. Lukens Steel Co., 482 U.S. 656 (1987) ...........

New York v. Quarles, 467 U.S. 649 (1984) ...........:ceeeeeeeeee

Niaz v. Williams, 467 U.S. 431 (1984) .............cccecceeeeeeeeeees

Oregon v. Elstad, 470 U.S. 298 (1985) .......:.ccseeeereeees

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) .............

Tiffany Fine Arts, Inc. v. United States, 469 U.S. 310

Os ts ia hi cacs ic chaibiannapilagh sebedesecceronersensésecesece

United States v. Barte, 868 F.2d 773 (5th Cir.), cert.

denied, 493 U.S. 995 (1989) ..............ccccscccresserersercrssseeees

United States v. Blakeney, 942 F.2d 1001 (6th Cir.), cert.

denied, 112 S. Ct. 646 (1991) .............ccccccccsccrccccssceessreess

United States v. Doe, 465 U.S. 605 (1984) 0.0... ceceeeees

United States v. Duran, 957 F.2d 499 (7th Cir. 1992) ......

United States v. Gonzalez-Sandoval, 894 F.2d 1043 (9th

a si oi sal Scantnuibnetsenpooinoneeeencnosence

United States v. Hummer, 916 F.2d 186 (4th Cir. 1990),

cert. denied, 111 S. Ct. 1608 (1991) ............ececeeeeceeeeeeeees

United States v. Kaplan, 895 F.2d 618 (9th Cir. 1990) ....

United States v. Race, 529 F.2d 12 (ist Cir. 1976) ...........

United States v. Roman, 849 F.2d 920 (5th Cir. 1988) .....

United States v. Sangineto-Miranda, 859 F.2d 1501 (6th

ts saiatintioananneneipecebeqescnencennes

United States v. Sokolow, 490 U.S. 1 (1989) ...........::::00+-

(IIT)

13

8-9

IV

Cases—Continued: Page

United States v. Twomey, 884 F.2d 46 (ist Cir. 1989),

cert. denied, 496 U.S. 908 (1990) ............cc0ccccccccccceeeeeeee 10

Constitution and statute:

U.S. Const. :

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In the Supreme Court of the Guted States

OCTOBER TERM, 1992

No. 92-1081

JOSE MALDONADO ESPINOSA AND

CARMEN MALDONADO ESPINOSA, PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. A1l-

A8) is reported at 968 F.2d 101. The opinion of the

district court denying petitioners’ motion to suppress

(Pet. App. A9-A43) is reported at 767 F. Supp. 1176.

JURISDICTION

The judgment of the court of appeals was entered on

June 30, 1992. Petitioners were granted an extension

to and including November 27, 1992, to file a petition

for a writ of certiorari. The petition was filed on

November 30, 1992, and is therefore out of time under

(1)

2

Rule 13.1 of the Rules of this Court. The jurisdiction

of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Petitioners, a brother and sister, entered condi-

tional guilty pleas in the United States District

Court for the District of Puerto Rico to one count of

possession of cocaine with intent to distribute it, in

violation of 21 U.S.C. 841(a)(1). Petitioner José

Maldonado was sentenced to 188 months’ imprison-

ment, to be followed by five years’ supervised release.

Petitioner Carmen Maldonado was sentenced to 121

months’ imprisonment and five years’ supervised re-

lease. The court of appeals affirmed. Pet. App. A1-A8.

1. At mid-day on February 28, 1991, a Customs

Service officer at Luis Mufioz Marfn International

Airport in Puerto Rico was conducting a periodic

training session with a drug-sniffing dog. Alongside

ordinary passenger luggage on a conveyor belt, the

officer had placed dummy luggage packed with

narcotics. Instead of alerting to the planted luggage,

however, the dog (which was an experienced, certified

drug detection dog) alerted to two other bags, which

appeared to be ordinary passenger luggage. The

officer contacted his superiors and took the suspect

suitcases to a Department of Agriculture/Customs

enclave. There the suitcases were x-rayed and

observed to contain several loaf-shaped packages and

not to contain ordinarily packed items such as

clothing. The dog was taken back to the luggage area,

where he alerted to two more suitcases. Those

suitcases were also x-rayed and observed to contain

suspiciously shaped packages. Pet. App. A2, A10-A11.

3

A Customs officer then examined the luggage tags

of the suspect baggage and noted the owners’ names

(Castro and Colén) and their flight (an American Air-

lines flight to Miami). An airline agent recalled the

two passengers because at check-in they had appeared

to be traveling together yet had preferred to be seated

separately. The agent pointed out Carmen Maldon-

ado, who was waiting at the gate, as one of the pair.

The Customs officer approached her and asked to see

her ticket; she replied that her brother had the tick-

ets and was in the restroom. When her brother, José

Maldonado, appeared, he stated that a man in a yellow

shirt had the tickets. Because no such man was in

the concourse area, the Customs officer asked the two

passengers if they would accompany him to the

Customs area. They agreed. Pet. App. A3, Al1-A12.

Petitioners were placed in separate rooms, each

with the bags that apparently belonged to him or her.

After a frisk for weapons, officers gave each suspect

Miranda warnings in Spanish, and each suspect exe-

cuted a written waiver of those rights. Petitioners

then revealed their true names. At some point, peti-

tioners were handcuffed to their chairs to prevent

flight. At another point, an agent again asked Car-

men Maldonado for the airline tickets. She voluntar-

ily reached into her carry-on handbag and produced

the tickets, but the tickets contained no luggage

claim stubs. An agent then searched the carry-on bag

and located the claim stubs for all four bags. Pet. App.

A3, A12.

Later that afternoon, a Drug Enforcement Admin-

istration (DEA) agent arrived and interviewed José

Maldonado, who was still sequestered from his sister.

4

The DEA agent repeated the earlier Miranda

warnings and told the suspect that a drug-sniffing dog

had alerted to his suitcases and that an x-ray had

revealed loaf-shaped packages. The DEA agent said

that he thought the bags contained a large quantity of

cocaine, and that either he could get a warrant to open

the bags or José Maldonado could consent to a search

of his luggage. José Maldonado consented to the

search. The DEA agent similarly told Carmen

Maldonado that he could obtain a warrant to open her

bags or she could consent to a search. Carmen

Maldonado indicated that she did not care whether the

DEA agent opened the bags because the luggage did

not belong to her. The DEA agent opened the

suitcases and found a total of 60 kilograms of cocaine.

Pet. App. A3-A4, A12-A16.!

' Before the lower courts, José Maldonado claimed that the

DEA agent had asked him to consent both in writing and

orally, but that he had refused and the DEA agent had had the

suitcases opened anyway. The DEA agent denied that account.

The district court heard extensive testimony and determined

that José Maldonado’s testimony was not credible. Not only

had the defendant lied regarding the man in the yellow shirt,

but his demeanor while testifying was wholly incredible. In

contrast, the DEA agent’s testimony was consistent and

supported by other witnesses. Accordingly, the district court

found that José Maldonado had unambiguously consented to

the search of the suitcases. Pet. App. A13-Al4. The court of

appeals agreed. Id. at A5.

Similarly, Carmen Maldonado claimed that she rejected

requests for written and oral consents, but the district court

found her testimony incredible. There was some confusion as

to whether Carmen Maldonado technically consented, dis-

claimed ownership, or both. The district court found, how-

ever, that, at a minimum, Carmen Maldonado disclaimed

5

2. Petitioners moved to suppress the cocaine, the

airline tickets, and the baggage claim checks. As an

initial matter, the district court ruled that no special

border search rules applied; ordinary Fourth Amend-

ment analysis controlled. Pet. App. Al6-A22. The

court then concluded that the initial dog sniff of

petitioners’ luggage was legal. Jd. at A22-A26. The

court concluded, however, that the x-rays of the

luggage constituted an impermissible warrantless

search of the luggage. Jd. at A26-A30.?

Nevertheless, the court denied petitioners’ motion

to suppress. It found that the dog sniff, along with

petitioners’ suspicious behavior, had provided prob-

able cause to detain them in the Customs area. Pet.

App. A30-A32. The agents were therefore justified in

searching Carmen Maldonado’s carry-on handbag

incident to her arrest and in seizing the baggage

claim stubs they found inside the bag (she had earlier

voluntarily produced the plane tickets). Jd. at A32.

ownership. Pet. App. Al4-A16. The court of appeals agreed.

Id. at A5.

2 The district court noted that courts have long approved

warrantless and suspicionless x-rays of airline luggage as

justifiable administrative searches for weapons and explosives,

and that contraband discovered in the course of such searches

is admissible evidence. But it concluded that the x-ray search

in this case was designed to confirm the presence of contra-

band, rather than to detect dangerous weapons. According to

the court, because the x-ray could not be justified by the

administrative search rationale, it was illegal under the current

state of the law. Pet. App. A26-A29. The court noted,

however, that passengers going to airports expect to have their

luggage x-rayed and perhaps hand-searched, which suggests

that they therefore have a limited expectation of privacy in

their luggage. Jd. at A29-A30.

6

Turning to the search of the suitcases and the

seizure of the cocaine found inside them, the district

court found that José Maldonado voluntarily con-

sented to the search and that the results of the x-ray

did not influence or coerce that consent. The court

stated:

Distilled to its essence, the message which [the

DEA agent] gave Mr. José Maldonado was that the

agents believed the bags contained drugs and that

they could and would obtain a search warrant if

consent was refused. It is the same message with

or without the specifics about the X-ray. * * * We

think that Mr. José Maldonado would have con-

sented even if he was advised only of the dog sniff.

Pet. App. A37.

The district court also found that Carmen Maldo-

nado had “failed to manifest any privacy interest in

the luggage or the contents thereof, and in fact

affirmatively disclaimed any such interest.” Pet. App.

A40. The court also found that the x-ray had not

affected that disclaimer. /d. at A41. According to the

court,

[w]hile the X-ray provided the police with more

specific information than they had after the dog

sniff, it did not alter the basic message given to

Carmen Maldonado: the luggage contained [a]

contraband substance, and the agents were going

to open the luggage either on consent or with a

warrant. We see no reason to believe that the de-

tail added by the X-ray “coerced” the disclaimer.

Ibid.

7

3. Petitioners entered pleas of guilty, conditioned

on their right to appeal the denial of their motion to

suppress. On appeal, petitioners primarily argued

that their consent and disclaimer were not voluntary

because the allegedly unconstitutional x-ray influ-

enced them. The court of appeals disagreed, holding

that the district court’s findings were adequately

supported and not clearly erroneous. Pet. App. A5-A6.

Because the consent and disclaimer were valid, the

court of appeals declined to consider whether the

warrantless x-ray was an unconstitutional search.

Id. at A6.°

Petitioners also contended on appeal that the claim

stubs obtained from the search of Carmen Maldon-

ado’s carry-on luggage should have been suppressed

because that search exceeded the permissible scope of

a search incident to arrest. The court of appeals

noted, however, that the carry-on bag was on the table

next to her and within her reach and accordingly

concluded that the warrantless search of that bag was

permissible as a search incident to arrest. Pet. App.

A6-A7. Finally, petitioners argued that the airline

tickets should have been suppressed because Carmen

Maldonado had produced them from her handbag in

3 The court of appeals had ordered the parties to submit

supplemental letter briefs on the constitutionality of x-raying

luggage after obtaining probable cause to believe that the

luggage contains illegal narcotics. As petitioners note (Pet. 21),

those briefs addressed the question whether air travelers have

reduced expectations of privacy, which the district court had

suggested was the case. The court of appeals, however,

decided that, because the consent and disclaimer were volun-

tary, it did not need to reach the question of the legality of the

x-ray examination. Pet. App. A6.

8

response to custodial interrogation that had not been

preceded by Miranda warnings. The court of appeals

ruled, however, that petitioners had waived their

Miranda claim by not raising it in the district court.

In any event, the court concluded that the waiver had

worked no injustice because, even assuming that no

Miranda warnings had been given, the government

agents would inevitably have discovered the tickets

and claim stubs during the search incident to

petitioners’ arrest. /d. at A7-A8.

ARGUMENT

1. Petitioners contend, as they did below, that the

x-ray of their luggage was an unconstitutional

search, that their consent and disclaimer were

influenced by that illegal search, and hence that the

cocaine should be suppressed as a fruit of an illegal

search. Both lower courts concluded, however, that

José Maldonado’s consent to search his luggage and

Carmen Maldonado’s disclaimer of ownership of her

luggage were not influenced by the x-ray, even

assuming that the x-ray was unconstitutional.

Because both lower courts resolved those factual

issues against petitioners, further review is not

warranted. See, e.g., Goodman v. Lukens Steel Co.,

482 U.S. 656, 665 (1987); Tiffany Fine Arts, Inc. v.

United States, 469 U.S. 310, 317 n.5 (1985); United

States v. Doe, 465 U.S. 605, 614 (1984).

In any event, the factual findings below were cor-

rect. Petitioners do not contest that the dog sniff

provided the agents with probable cause to believe

that the luggage contained drugs and therefore pro-

vided them with enough evidence to obtain a search

warrant. See United States v. Sokolow, 490 U.S. 1

9

(1989); Florida v. Royer, 460 U.S. 491, 506 (1983)

(plurality opinion of White, J.). The X-ray merely

confirmed the agents’ suspicions—which already

amounted to probable cause—and told them the shape

of the packages, an essentially irrelevant detail. As

the district court reasoned (Pet. App. A37, A41), even

if the agents had never x-rayed the luggage, they

would have told petitioners the same thing: that they

believed the luggage contained illegal drugs, and that

if petitioners chose not to consent to an examination

of the luggage, they would obtain a warrant to search

it. Therefore, even assuming that the X-ray was ille-

gal, it could not have tainted or rendered involuntary

either José Maldonado’s consent or Carmen Maldon-

ado’s disclaimer. See United States v. Roman, 849

F.2d 920, 922-923 (5th Cir. 1988); United States v..

Race, 529 F.2d 12, 15 (1st Cir. 1976). As the court of

appeals put it, “the Maldonados consented and dis-

claimed because they realized that failure to do so

would do them no good—the agents would simply ob-

tain a warrant and search the suitcases anyway.”

Pet. App. A6.

Petitioners suggest (Pet. 19-20) that the agents

coerced them by stating that a warrant would be

sought if they did not consent to the search. They

argue that the consent and disclaimer constituted

mere submission to a claim of lawful authority, which

does not constitute voluntary action under Bumper v.

North Carolina, 391 U.S. 548, 548-549 (1968). But

simply informing a suspect of the authorities’ inten-

tion to seek a search warrant does not automatically

render a consent or disclaimer involuntary, especially

where, as here, the police have probable cause to

10

search. See, e.g., United States v. Duran, 957 F.2d

499, 502 (7th Cir. 1992); United States v. Blakeney,

942 F.2d 1001, 1015-1016 (6th Cir.), cert. denied, 112 S.

Ct. 646 (1991); United States v. Hummer, 916 F.2d

186, 190 (4th Cir. 1990), cert. denied, 111 S. Ct. 1608

(1991); United States v. Kaplan, 895 F.2d 618, 622 (9th

Cir. 1990); United States v. Twomey, 884 F.2d 46, 51-

52 (1st Cir. 1989), cert. denied, 496 U.S. 908 (1990).

Rather, voluntariness is determined by examining all

the relevant circumstances. Schneckloth v. Busta-

monte, 412 U.S. 218, 227 (1973). In this case the

district court did just that.

As the court of appeals concluded, the district

court’s finding that the consent and disclaimer were

voluntary and unaffected by information regarding

the x-ray was “a perfectly plausible conclusion to

draw from the record.” Pet. App. A6. The record re-

veals, for example, that the DEA agent’s statements

made it clear that either a warrant or consent would

be necessary; petitioners thus knew that they did not

have to accede to the agent’s request. Moreover,

petitioners had received Miranda warnings by this

time and were not mistreated while in custody; there

were no indicia of coercion. Furthermore, petitioners

persistently claimed in the courts below that they

refused to consent, which confirms that they knew

they had the right not to consent. There is thus no

reason for this Court to disturb the factual findings

concurred in by the two lower courts.

2. Petitioners also contend that the court of

appeals should have reached their claim that Carmen

Maldonado produced the airline tickets from her

handbag in response to custodial questioning without

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Miranda warnings. The court of appeals correctly

determined, however, that petitioners waived this

issue by not raising it before the district court.

Petitioners correctly observe (Pet. 24) that their

motion stated that they moved pursuant to the Fourth

and Fifth Amendments to suppress their arrest and

evidence seized as a result of the search of the carry-

on handbag and the suitcases. The grounds stated in

their motion did not, however, raise any Miranda

argument. Reading the motion most generously, the

only Fifth Amendment grounds that petitioners even

arguably raised were that the agents acted in bad

faith, or that the admission of the evidence would

render the proceedings fundamentally unfair.‘

* The stated grounds for the motion read, in their entirety:

1. The defendants were detained on February 28, 1991 at

the Luis Mufioz Marin Airport, by U.S. Customs agents

without any probable cause [and with] no reasonable

suspicion.

2. A pat-down or frisk of both defendants and a search of

the carry-on handbag was conducted by customs agents for

alleged “security reasons” to search for weapons. In the

context of this case, no reasonable officer could [have] been

concerned about his/her safety. The “security” pat down

search and the search of defendants’ carry on handbag was

a pretext for a warrantless, illegal and unreasonable

search. The two airline tickets and the four claim checks

found in the handbag must be suppressed as fruits of the

illegal search.

3. The warrantless searches conducted of the four locked

suitcases were illegal and unreasonable. No exigent

reasons existed that could justify a warrantless search nor

[was] any consent * * * given by defendants.

12

Petitioners did not develop any Miranda argument

before the district court. Their statement in a

supporting memorandum of law (quoted at Pet. 25)

that evidence derived from unconstitutional or illegal

acts is tainted and must be suppressed hardly put the

district court on notice that petitioners meant to

raise a Miranda claim. Not surprisingly, the district

court did not explore that issue at the suppression

hearing or in its lengthy and careful opinion. Instead,

the court merely found that Carmen Maldonado

produced the plane tickets voluntarily. See Pet. App.

A12, A382 n.7. Because petitioners waived their

Miranda argument in the district court, the court of

appeals properly declined to consider it, as should this

Court.

There is, in any event, no force to the Miranda ar-

gument. In the district court, the agent who asked

Carmen Maldonado for the tickets recalled that, be-

fore he questioned either her or her brother, he had

4. The statements given by defendants were the product

of the illegal and [unJreasonable searches and seizures.

5. U.S. Customs agents do not have authority under the

facts of this case to conduct warrantless searches of purely

domestic travellers.

6. The defendants had a reasonable expectation of privacy

against such unconstitutional and intrusive seizure and

searches.

7. The defendants were not promptly brought before a

U.S. Magistrate as mandated by Rule 5(A) of the Federal

[RJules of [C]riminal Procedure.

Defs.’ Mot. to Suppress Arrest and Evidence 2-3, Cr. No. 91-

0122 (JAF) (D.P.R. filed Apr. 30, 1991).

13

asked whether both petitioners had received Miranda

warnings and was told yes. See Gov’t C.A. Br. 34.

Although petitioners contend otherwise, the district

court found that neither petitioner was a credible

witness. Pet. App. Al4. Moreover, Miranda prohibits

the admission of statements obtained without the

required warnings; it does not apply to other evidence

that is obtained as a result of custodial interrogation.

See Oregon v. Elstad, 470 U.S. 298 (1985); New York

v. Quarles, 467 U.S. 649, 665-672 (1984) (O’Connor, J ™

concurring in the judgment in part and dissenting in

part); United States v. Gonzalez-Sandoval, 894 F.2d

1043, 1047-1048 (9th Cir. 1990); United States v. Barte,

868 F.2d 773, 774 (5th Cir. 1989), cert. denied, 493 U.S.

995 (1989); United States v. Sangineto-Miranda, 859

F.2d 1501, 1516-1518 (6th Cir. 1988). And, as the court

of appeals observed (Pet. App. A7-A8), even if Carmen

Maldonado’s production of the tickets did result from

impermissible interrogation, and even if the produc-

tion of the tickets could be regarded as the improper

fruit of a Miranda violation, the government would

inevitably have discovered the tickets as part of the

search incident to arrest that occurred shortly

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

14

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

WILLIAM C. BRYSON

Acting Solicitor General

JOHN C. KEENEY

Acting Assistant Attorney General

KATHLEEN A. FELTON

Attorney

FEBRUARY 1993

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