MANUEL CHAVIRA, PETITIONER V. UNITED STATES OF AMERICA No. 90-7665 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Seventh Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1-15) is reported at 919 F.2d 1193. The opinion of the district court (Pet. App. 16-27) is unreported. JURISDICTION The judgment of the court of appeals was entered on October 25, 1990. A petition for rehearing was denied on January 7, 1991. The petition for a writ of certiorari was filed on April 8, 1991 (a Monday). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether petitioner may challenge the seizure of a codefendant that resulted in the codefendant's consent to the search of a house containing drugs. 2. Whether petitioner's codefendant had authority to consent to the search of the house. STATEMENT After a jury trial in the United States District Court for the Northern District of Illinois, petitioner was convicted of conspiracy to possess marijuana, heroin, and cocaine, with the intent to distribute them, in violation of 21 U.S.C. 846, and of possession of marijuana, heroin, and cocaine, with the intent to distribute them, in violation of 21 U.S.C. 841(a)(1). The district court sentenced petitioner to 97 months' imprisonment and six years' supervised release. The court of appeals affirmed. 1. Chicago police received a tip suggesting that Armando Chaidez was a large-scale heroin dealer. Accordingly, Chicago police decided to observe Chaidez' activities on the day in question. He left his home in the morning and was driven to a restaurant. He left that restaurant in his own car, carrying a plastic bag, and, after some circuitous driving, reached another restaurant. He soon left that restaurant with two unidentified individuals. After more circuitous driving, he stopped in the middle of a street and spoke to petitioner and his step-daughter Lilia Silva. Pet. App. 3. Petitioner and Silva then entered another car and drove to a gas station, with Chaidez following. After Chaidez spoke briefly with petitioner, the two cars left in different directions. The cars eventually met up again (after still more evasive driving by Chaidez), at which point Chaidez followed petitioner's car to a house north of Chicago. All three persons entered the house, with Chaidez carrying the small plastic bag. About a half hour later, Chaidez left the house in one car, and petitioner and Silva left in the other. After Chaidez apparently discovered the surveillance, the police stopped both cars by blocking the road. Pet. App. 3-4. The agents then approached the cars with their guns unholstered. Agent Rodriguez walked to the passenger side of the car and asked Silva to identify herself. After she answered truthfully, he asked her if she lived in the house. She answered that she rented it for her father and had come to do his laundry. Rodriguez read her the standard Miranda warnings and then asked her if she would consent to a search of the house. When she responded favorably, Rodriguez took her to a police van, where she signed a consent to search form. The agent radioed to another agent at the house that consent had been obtained, and detained Silva, petitioner, and Chaidez for ten to fifteen minutes during the search. The search disclosed narcotics; the officers arrested Silva, petitioner, and Chaidez. Pet. App. 4. 2. Before trial, petitioner and codefendants Chaidez and Silva sought suppression of the evidence seized at the house. The district court found that the agents properly stopped petitioner and his codefendants pursuant to Terry v. Ohio, 392 U.S. 1 (1968), that Silva's consent to the search of the house was valid, and that, based on the evidence found in the search of the house, the agents had probable cause to arrest the defendants. Pet. App. 16-26. 3. The court of appeals affirmed. Judge Easterbrook, writing for two judges, began his opinion with an analytical section, in which he concluded that it is inappropriate to divide all stops into the two categories of investigative, or Terry stops and full arrests, the first to be supported by reasonable suspicion and the second by probable cause. Instead, he concluded that this Court's cases in the area "describe a continuum in which the necessary degree of confidence increases with the degree of intrusion." Pet. App. 5. An intrusion between an ordinary Terry stop and an arrest, he reasoned, is permissible even if probable cause is not present, provided that the evidence is reasonable in comparison with the nature of the stop. Id. at 5-6. Turning to the facts of this case, he concluded that the detention in this case "was more intrusive than an ordinary Terry stop," Pet. App. 6, noting that the agents had their guns drawn when they first approached the defendants, that the agents searched both cars, and that the car keys were taken from both drivers. Ibid. On the other hand, he also concluded that the intrusion "both in terms of invasion of privacy and inconvenience, is a good deal less than that involved in arrest, which entails detention for hours or days and a myriad of intrusions, including fingerprinting and a full personal search." Id. at 7. He then examined the facts supporting the search, to determine whether they were sufficient to justify the intrusion. First, he noted that Silva's association with the known miscreant Chaidez was in itself insufficient. Pet. App. 7-8. But relying on Silva's connection with Chaidez in the course of an apparent drug transaction, her strange rendezvous with him on the road, and the perceived sudden flight, he determined that the officers had adequate evidence to justify the search. Id. at 8-9. /1/ The panel also rejected petitioner's argument that Silva did not have authority to consent to the search of the house. The panel first accepted petitioner's argument that it was not reasonable for the officers to believe that Silva had authority based on her statements that she did not live in the apartment, but was there only to do laundry. Pet. App. 9. The court went on to hold, however, that Silva had actual authority, based on evidence that Silva paid the utility bills for the house, that women's clothing was found in the house, and, most importantly, testimony of the owner that he had rented the house to both Silva and petitioner. Id. at 9-10. Because Silva had actual authority, the court reasoned, the search was valid. ARGUMENT 1. Petitioner's first contention (Pet. 22-25) is that the court of appeals erred in allowing the evidence found in the house to be admitted without finding probable cause to justify the seizure of petitioner and his two codefendants. This contention does not merit review in this Court. The most fundamental barrier to petitioner's contention is that he has no standing to challenge Silva's detention. All of the evidence in question was found based on a search to which Silva consented. Petitioner makes no claim that Silva's consent was involuntary. At bottom, then, petitioner's claim on this point is that the detention of Silva violated the Fourth Amendment and that her consent is thus ineffective solely because it was the fruit of an unlawful detention. /2/ It is well settled that "a court may not exclude evidence under the Fourth Amendment unless it finds that an unlawful search or seizure violated the defendant's own constitutional rights" and that "the defendant's Fourth Amendment rights are violated only when the challenged conduct invaded his legitimate expectation of privacy rather than that of a third party." United States v. Payner, 447 U.S. 727, 731 (1980) (emphasis in original); see Rakas v. Illinois, 439 U.S. 128, 143 (1978); Alderman v. United States, 394 U.S. 165, 171-172 (1969). Because petitioner's legitimate expectations of privacy were not affected by the detention of Silva, he cannot challenge the validity of that detention. In any event, it is reasonably clear that the decision below was correct. The proper manner of analysis is evident from the decision of this Court in United States v. Sharpe, 470 U.S. 675 (1985). In that case, this Court examined the legality of a detention of a vehicle and its driver for approximately twenty minutes waiting for the arrival of a DEA agent who was examining a related detainee. This Court acknowledged that "if an investigative stop continues indefinitely, at some point it can no longer be justified as an investigative stop," but noted that its cases had "emphasized the need to consider the law enforcement purposes to be served by the stop as well as the time reasonably needed to effectuate those purposes." Id. at 685. It held that the key in determining whether an investigative stop had transgressed permissible limits was "whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant." Id. at 686. Because the police had acted diligently there, the stop was found to be legal. /3/ The same analysis supports the stop here. The law enforcement purpose served by the stop was to find out whether the officers were justified in suspecting that petitioner and his codefendants had engaged in drug transactions. Once the officers had detained petitioner and his codefendants, they promptly asked Silva to identify herself and attempted to ascertain her connection with the house where they believed illegal transactions had occurred. When Silva consented to the search, the officers promptly caused the house to be searched. The officers' decision to attempt to search the house in a lawful manner surely was a professional way to attempt to resolve their suspicions; there is nothing to suggest that the officers in any way delayed the detention beyond the time period reasonably necessary to complete the search. Moreover, in light of this Court's acceptance of the twenty-minute detention upheld in Sharpe, the delay here cannot be thought extraordinary. Accordingly, the result reached by the court of appeals comports with this Court's resolution of similar questions. Finally, despite petitioner's protestations, it is not at all clear that the sliding scale proposed by Judge Easterbrook conflicts with the analysis set forth in this Court's cases. This Court has noted that the "exception for limited intrusions * * * is not confined to the momentary, on-the-street detention * * * involved in Terry." Michigan v. Summers, 452 U.S. 692, 700 (1981). Similarly, this Court has made it clear that there is not a single monolithic standard of evidence that must be met to justify a Terry stop; the key questions instead are "whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." Terry v. Ohio, 392 U.S. at 20. In the absence of any conflict among the courts of appeals -- and petitioner suggests none -- there is no reason for this Court to review Judge Easterbrook's formulation in this case. 2. Petitioner also complains (Pet. 25-27) that Silva had no authority to consent to the search of the house. /4/ Petitioner suggests no conflict with any decision of any other court or, indeed, any reason to believe that resolution of this factbound question would be likely to provide significant guidance in any other case. In any event, his contention is meritless. It is undisputed that "the consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared." United States v. Matlock, 415 U.S. 164, 170 (1974). The court of appeals relied heavily on the only relevant third-party testimony (the testimony of the owner of the house that Silva and petitioner were co-tenants), on Silva's actions in granting the police consent to search, and on the fact that women's clothing was found in the house (there was no evidence that the clothing did not belong to Silva). See Pet. App. 10. These facts are sufficient to justify the lower courts' conclusion that Silva had common authority over the premises and the capacity to consent to the search. Petitioner's argument that the court of appeals ignored "uncontroverted evidence that she did not live at the premises" (Pet. 26) is untrue. The court of appeals did not ignore that testimony; it simply accepted the jury's conclusion that the self-serving statements of petitioner and his stepdaughter were incredible in light of the testimony by the less obviously biased landlord. Similarly, petitioner is wrong to suggest (Pet. 26-27) that the court did not analyze whether Silva had mutual use of and access to the property. That is exactly what the court analyzed, explaining: "The meanings of 'mutual use' and 'joint access' are far from clear, but this case is not close. * * * There is no evidence that (petitioner) had more access to the house or used it more often than (Silva) * * *. Neither the judge nor the jury believed Silva's tale about the limited purpose for which she visited the house." Pet. App. 10 (citations omitted). This Court need not step in to review the resolution of factual questions of this nature. 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 GEOFFREY R. BRIGHAM Attorney JUNE 1991 /1/ Judge Ripple dissented, arguing that Silva's detention amounted to an arrest and that there was not probable cause to support her detention. Pet. App. 11-15. /2/ Resolution of the standing issue was not necessary to the decision of the court of appeals because Silva herself joined in the appeal to that court. See Pet. App. 1 (caption of case in court of appeals). Silva, of course, had standing to challenge the legality of her detention. /3/ This Court also noted that, aside from the length of the stop, it had found that a stop that did not include a formal arrest could be so intrusive as to be treated as an arrest, and thus be unlawful in the absence of probable cause. See 470 U.S. at 683-684. This rule should not apply here, because Silva was not forcibly removed to a police station or other remote location and did not experience any other intrusion fairly comparable to a formal arrest. See id. at 684 n.3. /4/ As a person who apparently shared authority over the house, petitioner has standing to make this claim because the search invaded his own privacy interests. See 4 W. LaFave, Search and Seizure Section 11.3(d), at 315 n.153 (2d ed. 1987).