Opposition Brief — Pichardo v. United States

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No. 00-1880

PETER RET EAEIO AA AMIE FA ON aE RPE CARRE ARTA 8 Ra

Jn the Supreme Court of the Ciuited States

SORIN PICHARDO AND VICTOR ROSARIO, PETITIONERS

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

THEODORE B. OLSON

Solicitor General

Counsel of Record

~ MICHAEL CHERTOFF

Assistant Attorney General

DEBORAH WATSON

Attorney

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether, in the circumstances of this case, police

violated the Fourth Amendment when they ordered

petitioners to step out of the open door of their

apartment into the hallway for questioning.

(1)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Arizona v. Hicks, 480 U.S. 321 (1986) ........ ie cictaibiidsieeneti 6

Illinois v. McArthur, 121 S. Ct. 946 (2001) ceeccccccoccccccoseose. ~

Katz v. United States, 389 U.S. 347 (1967) cececcccccccsscsccoosee. 7

New York v. Harris, 495 U.S. 14 (1990) ....cccccccccscscssessssseees 9,10

Payton v. New York, 445 U.S. 573 (1980) ...cccsssssssssssssssssees 4,6,7

Terry v. Ohio, 392 U.S. 1 (1968) ...cceccccsssccssssssssescsssssssscssosees 7

United States v. Santana, 427 U.S. 88 (1976) ceecsecccoccsosooe. 4,6,8

United States v. Sharpe, 470 U.S. 675 (1985) ceecccccccssseosee. 5

United States v. Watson, 423 U.S. 411 (1976) ceecccceccsoseooee. 6

Constitution and statute:

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EERSTE ne Oe ne eee ee 1-2

(III)

In the Supreme Court of the Gnited States

No. 00-1880

SORIN PICHARDO AND VICTOR ROSARIO, PETITIONERS

VU.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1a-44a)

is reported at 230 F.3d 44.

JURISDICTION

The judgment of the court of appeals was entered on

October 18, 2000. A petition for rehearing was denied

on January 22, 2001. The petition for a writ of certio-

rari was filed on May 2, 2001, and is therefore untimely.

Sup. Ct. R. 18.1 and 13.13. The jurisdiction of this Court

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

STATEMENT

Petitioners were indicted by a grand jury in the

Southern District of New York on a charge of con-

(1)

2

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

846. They moved to suppress the evidence seized at the

time of their arrest, as well as statements made before

and after their arrest. After an evidentiary hearing,

the district court granted petitioners’ motion to sup-

press. Pet. App. 8a. The court of appeals reversed.

Pet. App. la-26a.

1. On October 12, 1998, the police arrested Pedro

Mora in possession of a kilogram of cocaine. Mora, who

agreed to cooperate, contacted his drug source, Julio.

Gori. As police officers listened in, Mora told Gori that

he wanted to pick up two kilograms of cocaine for two

customers. Gori told Mora to come by later that after-

noon. Pet. App. 3a.

Accompanied by two police officers, Mora went to an

apartment building where Gori previously had de-

livered to him kilogram quantities of cocaine. From an

unmarked car, Detective Armando Rodriguez and Ser-

geant Diane Contreras watched as Gori and petitioner

Pichardo entered the building. Detective Rodriguez

followed the men and saw them enter Apartment 1M.

Fifteen minutes later, Mora telephoned Gori and ad-

vised that he was waiting in front of the building. Gori

then exited the building carrying a small bag. The

police arrested Gori, searched the bag, and found two

yellow packages, each containing a kilogram of cocaine.

Gori told police that someone in the building had given

him the bag. Pet: App. 4a.

Pending further instructions from their lieutenant,

who had not yet arrived, Rodriguez, Contreras, and a

third officer set up surveillance in the lobby of the

apartment building. Twenty to thirty minutes later, a

woman entered the apartment lobby with a food de-

livery order for Apartment 1M. Detective Rodriguez

decided to accompany the delivery woman to Apart-

3

ment 1M because he was concerned that if he prevented

the delivery, the occupants might investigate the delay

and be alerted to the officers’ presence; however, if he

allowed the delivery to be made, the delivery woman

might betray their presence. Pet. App. 4a-5a.

Detective Rodriguez and Sergeant Contreras, with

their guns drawn and pointed at the floor, positioned

themselves on either side of the delivery woman as she

stood in front of the door. After the delivery woman

knocked on the door to Apartment 1M, the door was

opened wide. The officers immediately displayed their

shields and ordered everyone to step out into the hall-

way. From his position in the hallway, Detective

Rodriguez could see five people through the open door,

including petitioner Rosario. A moment later, peti-

tioner Pichardo emerged from a rear bedroom. All six

occupants then stepped into the hallway. Pet. App. 5a.

When petitioner Rosario identified himself as the

owner of the apartment, Detective Rodriguez asked if

he knew “the fat guy,” motioning to Gori, who had

been handcuffed and brought into the hallway area.

Rosario looked at Gori, nodded and hesitated. One of

the officers asked to speak in private, and Rosario

moved back into the apartment, followed by the of-

ficers. Rosario stated that Gori had given him a thou-

sand dollars to hold a bag for him. Rosario consented

both orally and in writing to a search of the apartment.

Rosario took the officers into the bedroom and showed

them a bag containing five kilograms of cocaine inside

an armoire. Pet. App. 5a-6a.

One half hour later, an officer arrived at the apart-

ment with a consent to search form that was written in

Spanish. After Rosario read and signed the form, of-

ficers searched the apartment and seized the cocaine

from the armoire, as well as dilutants, documents, drug

4-

paraphernalia, and $15,000 cash. Petitioners were

arrested and taken to Drug Enforcement Administra-

tion offices. There, after being advised of and waiving

his Miranda rights, Pichardo stated that he knew that

Gori and Rosario were drug dealers, but claimed that

he did not know that there had been drugs in the apart-

ment at that time. Pet. App. 7a.

2. Following their indictment on a charge of con-

spiracy to distribute cocaine, the district court granted

petitioners’ motion to suppress the evidence seized

from the apartment as well as petitioners’ statements.

Pet. App. 8a. The court found that the officers had rea-

sonable suspicion to believe that evidence of criminal

activity might exist in Apartment 1M, and that Rosario

had voluntarily consented to the officers’ entry into,

and the search of, the apartment. Jbid. The court

nonetheless found that the order to the occupants to

exit the apartment constituted a warrantless seizure in

violation of the Fourth Amendment. Jbid. The court

reasoned that the order to exit constituted an “entry”

in violation of the holding of Payton v. New York, 445

U.S. 573 (1980), that, absent exigent circumstances,

police officers must obtain a warrant before entering a

home to make a felony arrest. Pet. App. 9a. The court

further found that the violation tainted Rosario’s state-

ments and his two consents to search the apartment, as

well as Pichardo’s statement that he knew the others

were drug dealers. Jd. at 10a.

3. The court of appeals reversed. Pet. App. la-26a.

The court held that the officers’ order to evacuate

Apartment 1M did not violate the rule in Payton, be-

cause “the interior of Apartment 1M was exposed to

public view when the door was voluntarily opened.” Id.

at 15a. The court therefore found that the case was

governed by this Court’s decision in United States v.

5

Santana, 427 U.S. 38 (1976), which held that the war-

rantless arrest of a woman standing in the open door-

way to her home did not violate the Fourth Amend-

ment because the open doorway was a public place in

which she had no reasonable expectation of privacy.

Pet. App. 15a-16a. Because the rule in Payton was not

implicated, the court concluded that a warrant was not

necessary as long as the officers’ conduct was rea-

sonable. Jd. at lla, 17a, 19a, 21a.

The court further held that the officers “acted rea-

sonably at every stage of the ‘swiftly developing situa-

tion’” facing them. Pet. App. 2la (quoting United

States v. Sharpe, 470 U.S. 675, 686 (1985)). The court

noted that the officers had reasonable suspicion that

Apartment 1M was a stash house for narcotics and that

its occupants might be involved in narcotics trafficking.

Id, at 22a. The court also found that the arrival of the

food delivery ordered by the apartment’s occupants

called for immediate measures, and the officers rea-

sonably accompanied the delivery woman to the door

when she knocked so that the occupants would not be

alerted to the officers’ presence. Jbid. The court

further found that, “when the door was opened, and

the occupants and the police could see each other, it

was reasonable for the police to ask the occupants of a

known narcotics stash house to step outside for the pur-

poses of a limited investigation.” Jd. at 23a. The court

concluded that the officers acted “to assure their own

safety, the safety of the person delivering the food, and

the safety of the occupants.” Jd. at 24a.

Judge Sotomayor dissented. Pet. App. 27a-44a. In

her view, the police order to exit constituted a construc-

tive entry into the apartment violating the rule of

Payton. Id. at 31a-38a.

6

ARGUMENT

Petitioners argue (Pet. 12-17) that the court of ap-

peals erred in upholding the police order directing

petitioners to step out from the apartment. That con-

tention is not ripe for review and, in any event, is with-

out merit.

1. As an initial matter, petitioners’ contention is not

ripe for review by this Court. The court of appeals’

decision places petitioners in precisely the same posi-

tion they would have occupied if the district court had

denied their motion to suppress the evidence. If

petitioners are acquitted following a trial on the merits,

their current contention will be moot. If, on the other

hand, petitioners are convicted and their convictions

are affirmed on appeal, they will then be able to present

their current contention, together with any other claims

they may have, in a petition for a writ of certiorari

seeking review of a final judgment against them.

2. In any event, the court below correctly rejected

petitioners’ claim. In Payton v. New York, 445 U.S.

573, 576, 589 (1980), the Court held that, absent exigent

circumstances, police must obtain a warrant before

they enter the home to conduct a search or otherwise

intrude on an individual’s legitimate expectation of pri-

vacy. A warrant is not required, however, in circum-

stances where individuals have no reasonable expecta-

tion of privacy. Thus, no warrant is required either for

the arrest of an individual in a public place (United

States v. Watson, 428 U.S. 411, 415 (1976)), or for the

seizure of an item in plain view (Arizona v. Hicks, 480

U.S. 321, 326 (1987)). Similarly, in United States v.

Santana, 427 U.S. 38, 42 (1976), the Court upheld the

warrantless arrest of a woman standing in the open

doorway to her house because the open doorway was a

7

public place in which she had no reasonable expectation

of privacy. As the Court explained, a person standing

in the doorway “was as exposed to public view, speech,

hearing, and touch as if she had been standing-com-

pletely outside her house.” Ibid. See also Katz v.

United States, 389 U.S. 347, 351 (1967) (“What a person

knowingly exposes to the public, even in his own home

or office, is not a subject of Fourth Amendment pro-

tection.”). This Court has also held that police may stop

a person in a public place to conduct a brief questioning

based upon reasonable suspicion. Terry v. Ohio, 392

US. 1, 8, 20 (1968). As the Court explained in Terry,

such situations involve “an entire rubric of police

conduct—necessarily swift action predicated upon on-

the-spot observations of the officer on the beat—which

historically has not been, and as a practical matter could

not be, subjected to the warrant procedure. Instead,

the conduct involved * * * must be tested by the

Fourth Amendment’s general proscription against

unreasonable searches and seizures.” Jd. at 20.

Applying those principles, the court of appeals pro-

perly held that the warrantless seizure of petitioners in

this case did not violate this Court’s holding in Payton.

Here, the occupants of the apartment, responding to

the knock of the delivery woman, voluntarily opened

the front door, placing themselves “face to face” with

the officers who were standing in the hallway. Pet.

App. 25a. In other words, when petitioners “volun-

tarily opened the door to the Apartment 1M in response

to a knock from the delivery person whom they invited,

they created a vista from a public place or common

area” and thus lost any “expectation of privacy as to

what could be seen from the hall.” Jd. at 16a, 17a. The

‘officers in this case did not enter the apartment until

8

petitioner Rosario consented to the entry. Id. at 5a, 8a.”

In those circumstances, the court of appeals properly

found this case to be governed by Santana rather than

Payton. Id. at 15a; ef. Illinois v. McArthur, 121 8. Ct.

946, 952 (2001) (citing Santana in rejecting claim that a

police order to a suspect standing on porch to stay out

of home was a constructive eviction of suspect from

home).

Petitioners contend (Pet. 12) that the court of ap-

peals’ holding would permit officers to order occupants

to exit a residence based on what officers may observe

from an open window. The court of appeals, however,

did not consider that question. Indeed, the court re-

peatedly stressed that the occupants in this case volun-

tarily opened the door in response to an invitee, Pet.

App. 16a, 17a & n.5, and the court specifically stated

that its decision did not address whether “a suspect

loses the heightened protection of Payton merely by

opening a door in response to a knock by law enforce-

ment.” Jd. at 17a n.5; see also id. at 13a (“It is unclear

whether Payton’s solicitude is aroused when a dwelling

is penetrated by the voice of a police officer standing

outside.”); accord id. at 14a n.3.

Finally, petitioners do not challenge the court of ~

appeals’ conclusion that the officers acted reasonably at

all times given the circumstances. Pet. App. 21a-26a.

* Petitioners argue (Pet. 16) that the facts in Riddick v. New

York, No. 78-5421, a companion case to Payton, involved a re-

sidence whose “interior * * * was voluntarily opened to the

public.” That is not correct. In Riddick, police entered the defen-

dant’s home after the defendant’s 3-year old son opened the door in

response to police knocking. The Court thus concluded that “the

police entered before Riddick had an opportunity either to object

or to consent.” 445 U.S. at 583. In this case, by contrast, the police

entry was consensual.

9

As the court stated, “[t]he encounter at the door of

Apartment 1M was precipitated by the arrival of the

food delivery ordered by the occupants.” Jd. at 22a. At

that point, “[tJhe police had no obvious option *- * *

other than to proceed as they did.” Jd. at 2la. As the

court explained:

If [police] let the delivery woman proceed

unaccompanied after seeing police in the foyer, she

might betray their presence intentionally or by her

alarm; if they turned her away, the hungry

occupants might have called the take-out restaurant

to complain about the delay, and been alerted that

way. The police could assume that once alerted, the

occupants might have disposed of the contraband by

the window or the toilet, or might have precipitated

violence.

Id. at 22a. It was therefore reasonable for the officers

to accompany the woman to the door as she knocked

and, once “the occupants and the police could see each

other,” the officers reasonably asked the occupants,

who were reasonably suspected of narcotics trafficking

on the premises, to step outside in order to protect the

safety of the officers, the delivery woman, and the

occupants. Jd. at 23a-24a.

3. This Court’s review is also not warranted because ©

petitioner would not be entitled to suppression of the

evidence at issue even if we assume, arguendo, that the

order to step out from the apartment violated the rule

in Payton. Here, the officers obtained all the excluded

evidence as a result of petitioner Rosario’s consent to

the officers’ search of his apartment. In New York v.

Harris, 495 U.S. 14 (1990), this Court held that the

exclusionary rule does not bar the admission of a con-

fession given by a defendant after he was arrested

10

inside the home in violation of Payton, because the

officers had probable cause for the arrest independent

of the entry into the home and the confession “was not

the product of being in unlawful custody.” Id. at 19.

That analysis applies here. The officers had reason-

able suspicion to detain petitioners had the officers

encountered them outside Apartment 1M. See Pet.

App. 18a (“It is undisputed that officers * * * had

‘reasonable suspicion’ entitling them to carry out an

investigation of where Gori obtained the cocaine by

questioning the occupants of Apartment 1M.”) (quota-

tion marks omitted). Moreover, petitioner Rosario’s

consent was not the product of an unlawful seizure, but

was completely voluntary. Jd. at 8a. Thus, his consent

“was not an exploitation of [any] illegal entry into [his]

home.” Harris, 495 U.S. at 19. For that reason as well,

-the evidence seized and petitioners’ statements should

not have been suppressed.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

THEODORE B. OLSON

Solicitor General

MICHAEL CHERTOFF

Assistant Attorney General

DEBORAH WATSON

Attorney

SEPTEMBER 2001