EUSTAQUIO DEASES, PETITIONER V. UNITED STATES OF AMERICA No. 90-7283 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 Tenth Circuit Brief For The United States In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. A1-A12) is reported at 918 F.2d 118. The order of the district court denying petitioner's motion to suppress (Pet. App. C1-C7) is unreported. JURISDICTION The judgment of the court of appeals was entered on November 1, 1990. Justice White extended the time in which to petition for a writ of certiorari to and including March 1, 1991, and the petition was filed on February 22, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the stop of petitioner's car for speeding and the subsequent consent search of the car violated the Fourth Amendment. 2. Whether the district court erred by allowing the goverment to cross-examine petitioner during a pretrial suppression hearing as to his prior drug usage and arrest. 3. Whether 18 U.S.C. 3553(e) and Sentencing Guidelines Section 5K1.1 violate the Due Process Clause because those provisions allow the district court to sentence a defendant below the statutory minimum or Sentencing Guidelines range only upon a motion by the Government seeking such a departure. STATEMENT Petitioner was indicted in the United States District Court for the District of Kansas on one count of possession of more than 500 grams of cocaine with intent to distribute it, in violation of 21 U.S.C. 841(a)(1), and one count of carrying a firearm in relation to a drug trafficking offense, in violation of 18 U.S.C. 924(c). After the denial of petitioner's motion to suppress evidence (see Pet. App. C), he entered a conditional plea of guilty to both counts of the indictment pursuant to Fed. R. Crim. P. 11(a)(2). The district court sentenced him to two consecutive terms of 60 months' imprisonment. The court of appeals affirmed (Pet. App. A1-A12). 1. On July 24, 1989, Trooper Kirk Simone of the Kansas Highway Patrol stopped petitioner's automobile, which was travelling six miles per hour above the posted speed limit. /1/ After petitioner presented his Iowa driver's license, the trooper asked petitioner to accompany him to the patrol car, so that the trooper could issue a warning ticket. As petitioner sat in the front passenger seat of the patrol car and answered some routine questions about his origin and destination and the purpose of his trip, the trooper noticed that petitioner became increasingly nervous, despite having been told that he would receive only a warning. The trooper therefore asked whether petitioner had any weapons, drugs, or other contraband in his car. Petitioner answered no, but became even more nervous. After processing the ticket, the trooper handed back petitioner's license. At that point, the two had been in the patrol car for approximately 2 to 3 minutes. Pet. App. A6-A7, A10, C2-C3. The trooper then requested permission to search petitioner's car. Without any hesitation, petitioner responded "OK," left the patrol car, and approached his own automobile. Pursuant to standard procedures, the trooper asked petitioner to open the trunk of his car, which petitioner did without hesitation. Inside the trunk were a shotgun, two suitcases, and a travel bag. After asking petitioner to open one of the suitcases, which proved to be empty, the trooper himself opened the travel bag and discovered a number of packages of white powder that he recognized to be cocaine. At that point, petitioner tried to take the bag away from the trooper and then tried to reach for the shotgun, whereupon he was arrested. After undertaking a more thorough post-arrest search, the trooper eventually found approximately one kilogram of cocaine; he also determined that the shotgun was loaded. Pet. App. A6-A7, C3-C4. /2/ 2. The district court denied petitioner's motion to suppress the evidence resulting from the stop and search of his car. First, the court found that petitioner's car was lawfully stopped for violating state traffic laws and that the stop was not pretextual. Pet. App. C4. Second, the court found that petitioner voluntarily and knowingly consented to the search of his vehicle. Id. at C5. The court noted that petitioner "was quite alert and on actual notice of the officer's intention to search for guns and drugs"; nonetheless, petitioner "granted permission without hesitation" when the officer requested permission to search the car. Ibid. Finally, the court found that petitioner attempted to rescind his consent for the search (by attempting to grab the travel bag from the officer) only after the cocain had been discovered and the trooper had independent probable cause to search the bag without a warrant. Id. at C5-C6. Petitioner's continuing consent therefore "was no longer required." Id. at C6. 3. The court of appeals affirmed petitioner's conviction and sentence. Pet. App. A1-A12. The court of appeals first ruled that the district court had not erred in refusing to depart below the statutory minimum sentence and the Guidelines sentencing range to reward petitioner for cooperation with the government. The court of appeals looked to the language of 18 U.S.C. 3553(e) and Sentencing Guideline Section 5K1.1, both of which allow a court to depart below statutory and Guidelines minimums only "(u)pon motion of the Government stating that the defendant has provided substantial assistance." The court of appeals noted that the government did not file such a motion, but instead advised the court that petitioner had not cooperated, had not been of substantial assistance and had not provided verifiable information about other crimes. Pet. App. A4. In those circumstances, the court of appeals held, petitioner's due process rights were not violated by the district court's refusal to depart below the required sentencing levels. Id. at A4-A5. The court of appeals next rejected petitioner's claim that he was improperly cross-examined at the suppression hearing when the prosecutor inquired about petitioner's previous cocaine use and arrest. The challenged cross-examination occurred "not (at) a jury trial but only (at) an evidentiary hearing in connection with a pending motion." Pet. App. A5. Thus, the court held, even if the evidence of prior drug activity was inadmissible, "it is difficult to imagine a situation where, in a hearing on a motion to suppress, the admission of inadmissible evidence would justify a reversal on appeal." Ibid. Finally, addressing petitioner's Fourth Amendment claims, the court held that "overwhelming objective evidence" supported the district court's determination that the stop of petitioner's car for a traffic violation was not a pretext. Id. at A9. The court of appeals also found that the 2- or 3-minute duration of the stop was not excessive (id. at A9-A10); that petitioner's consent was voluntarily given (id. at A10); that the ensuing search "did not exceed the scope of (petitioner's) consent" (ibid.); and that petitioner "made no objection to the search as it proceeded" until after the cocaine had been discovered (id. at A12). "All things considered," the court concluded, "the stop of the vehicle, the ensuing search of the trunk and the seizure of the contraband therein was lawful." Id. at A10. ARGUMENT 1. Petitioner contends (Pet. 8-24) that the stop and subsequent consent search of his car violated the Fourth Amendment in several respects. Those claims are insubstantial and were properly rejected by the courts below. First, petitioner asserts (Pet. 8-11) that the initial stop of his car for a "marginal" (id. at 10) traffic violation was necessarily a pretext for Trooper Simone to conduct an unlawful search. As this Court has repeatedly held, however, a police officer's subjective intent or motivation is irrelevant to a Fourth Amendment inquiry "as long as the circumstances, viewed objectively, justify (his) action." Scott v. United States, 436 U.S. 128, 137 (1978); see also Maryland v. Macon, 472 U.S. 463, 470-471 (1985); United States v. Villamonte-Marquez, 462 U.S. 579, 584 n.3 (1983). /3/ The record in this case fully supports the court of appeals' conclusion that Trooper Simone's actions were objectively justified. Petitioner does not dispute that he was speeding at the time he was stopped. When an officer observes a traffic infraction, as Trooper Simone did here, he has objective probable cause to stop the vehicle. See Pennsylvania v. Mimms, 434 U.S. 106 (1977). Furthermore, Trooper Simone testified that it is the policy of the Kansas State Police to stop drivers exceeding the speed limit by more than 5 miles per hour, and that it is his personal practice to pull over such drivers and issue warnings to them (as he did to petitioner). /4/ The initial stop of petitioner was completely objectively reasonable. Petitioner next contends (Pet. 11-15) that, even if the traffic stop was valid, his detention exceeded the permissible duration of a traffic stop. As the court of appeals noted, however, petitioner was detained in the patrol car for only two or three minutes following the stop, during which time the trooper engaged petitioner in conversation while issuing a warning ticket. Pet. App. A9-A10. After the paperwork was complete, the trooper handed petitioner the ticket, his driver's license, and "all of his articles." Id. at A10. At that time, a reasonable person would have believed that the stop had ended and that he was free to go. Accordingly, as the court of appeals held, the trooper's subsequent inquiry into petitioner's possession of guns, drugs, or other contraband and the request for permission to search petitioner's car occurred during the course of a consensual encounter. Petitioner -- ticket and license in hand -- would have been free to disregard the trooper's inquiry. See United States v. Turner, 928 F.2d 956, 958-959 (10th Cir. 1991); United States v. Werking, 915 F.2d 1404, 1408-1409 (10th Cir. 1990). /5/ The trooper did not exceed the permissible scope of the valid traffic stop. /6/ There is likewise no merit to petitioner's claim (Pet. 15-19) -- based largely upon his own version of events that the district court rejected as "not credible" (Pet. App. C6) -- that the courts below improperly concluded that he voluntarily consented to the search of his car. In Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973), this Court recognized that "the question whether a consent to a search was in fact 'voluntary' or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of the circumstances." As both courts below found, the credible evidence showed that petitioner stated without hesitation that it would be "OK" for the trooper to search his vehicle, that he immediately left the patrol car and walked towards his own vehicle before the trooper even had the opportunity to ask whether he would sign a written consent-to-search form, and that petitioner thereafter opened both the trunk of his vehicle and one of his suitcases without objection. Pet. App. A7, A12, C3, C5-C6. Nor did the courts below find any evidence of coercion by the officer during the episode. Those circumstances fully support the determination that petitioner voluntarily consented to the search of his car. Finally, petitioner argues (Pet. 20-24) that "(i)f (he) gave any consent at all, it was directed only at the vehicle and not at the closed luggage in the trunk." Id. at 20. In other words, petitioner contends that the trooper exceeded the scope of the consent to search when he opened the travel bag that contained the cocaine. That contention fails in light of this Court's decision in Florida v. Jimeno, No. 90-622 (May 23, 1991). As the Court there stated, it is "objectively reasonable for the police to conclude that the general consent to search (a) car include(s) consent to search containers within that car which might bear drugs." Id., slip op. 3. Here, as in Jimeno, the trooper asked if there were guns, drugs, or other contraband in the car and requested permission to conduct a search; petitioner "granted * * * permission to search his car, and did not place any explicit limiation on the scope of the search." Ibid. Indeed, petitioner himself opened a suitcase for the trooper's inspection. In those circumstances, no constitutional violation occurred when the trooper opened the travel bag. 2. Petitioner contends (Pet. 24-27) that the district court erred by allowing the government to cross-examine him at his suppression hearing regarding his prior use of cocaine and his arrest for possession of cocaine. This claim is without merit. Whether or not the challenged questions would have been permissible to impeach petitioner's credibility during a criminal trial, this Court has recognized that "the same rules of evidence governing criminal jury trials are not generally thought to govern hearings before a judge to determine evidentiary questions." United States v. Matlock, 415 U.S. 164, 173 (1974). Thus, in holding that hearsay evidence proffered by the government had been improperly excluded at a pretrial suppression hearing, the Court remarked that there was "much to be said for the proposition that in proceedings where the judge himself is considering the admissibility of evidence, the exclusionary rules, aside from the rules of privilege, should not be applicable" and that "the judge should receive the evidence and give it such weight as his judgment and experience counsel." Id. at 175. /7/ The district court therefore did not err in allowing petitioner to be cross-examined regarding his drug usage and his arrest record. /8/ Even if the government's cross-examination of petitioner was improper, petitioner is not entitled to reversal of his conviction. As this Court has long recognized, the introduction of inadmissible evidence at a bench trial does not constitute a ground for reversal on appeal. See Sinclair v. United States, 279 U.S. 749, 767 (1929), quoting United States v. King, 48 U.S. (7 How.) 833, 854 (1849). See also, United States v. Foley, 871 F.2d 235, 239-240 (1st Cir. 1989) (collecting cases). A fortiori, reversal is not required where the disputed evidence is introduced in the course of an evidentiary hearing. In any event, petitioner has made no attempt to show that he was prejudiced by the introduction of the evidence. 3. Petitioner lastly contends (Pet. 27-34) that 18 U.S.C. 3553(e) and Sentencing Guidelines Sectin 5K1.1, which allow the district court to depart below the statutory minimum sentence and recommended Guidelines sentencing range if a defendant has provided "substantial assistance" to the government, violate the Due Process Clause because the district court's authority to award the downward adjustment is controlled by the government. In this case, petitioner claims, the government "arbitrarily and capriciously" refused to request such a departure. The courts of appeals have uniformly upheld the "substantial assistance" provisions against due process challenges. /9/ Petitioner offers no persuasive reason to adopt a different approach in this case. a. By their terms, 18 U.S.C. 3553(e) and Guidelines Section 5K1.1 authorize a district court to depart from prescribed sentences only "(u)pon motion of the Government." The framework of these provisions comports with the Due Process Clause because in the absence of a "right to individualized sentencing, * * * Congress may constitutionally prescribe mandatory sentences or otherwise constrain the exercise of judicial discretion." United States v. Huerta, 878 F.2d 89, 94 (2d Cir. 1989), cert. denied, 110 S.Ct. 845 (1990). As this Court has recognized, "the authority to define and fix the punishment for crime is legislative." Ex parte United States, 242 U.S. 27, 42 (1916). Thus, "in noncapital cases, the (formerly) established practice of individualized sentences rests not on constitutional commands, but on public policy enacted into statutes." Lockett v. Ohio, 438 U.S. 586, 604-605 (1978). See also Sumner v. Shuman, 483 U.S. 66, 75 (1987); McMillan v. Pennsylvania, 477 U.S. 79, 92 (1986) (upholding state minimum sentencing statute and noting "some difficulty fathoming why the due process calculus would change" when the legislature removed discretion from the sentencing court); Chapman v. United States, No. 90-5744 (May 30, 1990) ("a person who has been * * * convicted (of a crime) is eligible for, and the court may impose, whatever punishment is authorized by statute for his offense"). In cases not involving capital punishment or life imprisonment (e.g., Solem v. Helm, 463 U.S. 277 (1983)), this Court has never doubted the legislative authority to divest courts of their sentencing discretion by establishing mandatory minimum punishments. See United States v. Mistretta, 488 U.S. 361 (1989); Lockett v. Ohio, 438 U.S. at 603; Ex parte United States, 242 U.S. at 42. In other words, Congress could have eliminated judicial sentencing discretion entirely by imposing mandatory minimum sentences in all noncapital cases. For that reason, Congress can also take the less drastic measure of permitting sentencing judges to depart from mandatory minimum sentences only when the prosecutor certifies by motion that such a departure is justified because of the accused's "substantial assistance" to the government. Moreover, since Congress delegated to the Sentencing Commission the authority to regulate the sentencing process, a defendant has no more right to a "substantial assistance" reduction in his sentence under the Guidelines than he does under the Sentencing Reform Act. See United States v. Lewis, 896 F.2d 246, 249 (7th Cir. 1990). As the Eleventh Circuit has observed, "if, despite their inflexibility, mandatory sentencing provisions withstand due process scrutiny, so too must the sentencing guidelines." United States v. Erves, 880 F.2d 376, 379 (11th Cir. 1989). Section 3553(e) and Guidelines Section 5K1.1 fully comport with the Due Process Clause. b. Petitioner contends (Pet. 30-34) that even if the "substantial assistance" provisions are constitutional, procedural safeguards are needed to protect against "(t)he risk of an erroneous deprivation of (a) liberty interest" caused by prosecutors who "arbitrar(ily) or (in) bad faith refus(e) * * * to recognize substantial assistance." Id. at 31-32. Hence, petitioner argues that courts should have authority to review a prosecutor's refusal to file a "substantial assistance" motion and then impose a sentence below statutory mandatory minimums and below indicated Guidelines ranges. Petitioner properly concedes (Pet. 32), however, that "there is no authoritative precedent" for such an approach. To the contrary, the courts of appeals have consistently held that a sentencing court has no authority to depart -- on "substantial assistance" grounds -- from the statutory minimum sentences or Guidelines sentencing ranges in the absence of a motion by the government. See, e.g., United States v. LaGuardia, 902 F.2d 1010, 1013-1017 (1st Cir. 1990); United States v. Alamin, 895 F.2d 1335, 1337 (11th Cir. 1990); United States v. Coleman, 895 F.2d 501, 504-505 (8th Cir. 1990); United States v. Francois, 889 F.2d 1341, 1345 (3d Cir. 1989), cert. denied, 110 S. Ct. 1822 (1990). The prerogative accorded to the government by Congress and the Sentencing Commission in promulgating the "substantial assistance" provisions is akin to the "exclusive authority and absolute discretion" enjoyed by the government in determining whether to prosecute, see United States v. Nixon, 418 U.S. 683, 693 (1974), or what charges to bring, see United States v. Batchelder, 442 U.S. 114, 124-125 (1979); see also United States v. Huerta, 878 F.2d at 92. Like the decisions as to whether and how to prosecute, the government's decision not to file a "substantial assistance" motion is not subject to judicial review. Huerta, 878 F.2d at 94. See also, United States v. Kuntz, 908 F.2d 655, 657 (10th Cir. 1990). To be sure, as petitioner notes (Pet. 32-33), several courts of appeals have left open the question whether a bad faith refusal by the government to file a "substantial assistance" motion is subject to judicial scrutiny. See United States v. LaGuardia, 902 F.2d at 1017 & n.6; United States v. Poston, 902 F.2d 90, 100 n.11 (D.C. Cir. 1990); United States v. Justice, 877 F.2d 664, 668-669 (8th Cir. 1989); United States v. White, 869 F.2d 822, 829 (5th Cir. 1989). As the court of appeals in this case specifically found (Pet. App. 5a), however, there was no egregious prosecutorial conduct that might have allowed the district court to depart in the absence of a motion by the government. /10/ Because petitioner could not be utilized as an informant and because the information he provided was neither verifiable nor of assistance in any investigation, see Gov't C.A. Br. 14, 16, petitioner has failed to establish the existence of any assistance, let alone governmental bad faith in the refusal to file a "substantial assistance" motion. See United States v. Ortez, 902 F.2d 61, 64-65 n.** (D.C. Cir. 1990); United States v. Francois, 889 F.2d at 1343. 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 ROBERT J. ERICKSON Attorney JUNE 1991 /1/ Trooper Simone testified at a subsequent suppression hearing that it is the policy of the Kansas Highway Patrol to stop vehicles that are exceeding the speed limit by that amount, and that it was his practice to do so. Pet. App. A6. /2/ Petitioner's testimony at the hearing was "diametrically opposed" to the trooper's. Pet. App. C5. Petitioner asserted that Trooper Simone told him that he would not be permitted to leave until he opened his trunk for inspection, and that the trooper had his hand on his revolver at the time he secured petitioner's consent. Id. at A7-A8. After "view(ing) the demeanor of (petitioner) and carefully considering what he had to say," the district court found that petitioner's testimony "was not credible." Id. at A5-A6. /3/ Although petitioner complains that the district court employed a subjective standard in evaluating whether the stop was pretextual, the court of appeals unquestionably held that the stop was objectively reasonable. See Pet. App. C8-C9. /4/ Trooper Simone also testified that he was not suspicious of petitioner, beyond his speeding. See Pet. App. A6, C2. Accordingly, the district court found that "(t)he trooper had no pretextual intent and (petitioner) established none." Id. at C4. Petitioner still has not pointed to any evidence of pretext -- his complaint that he was subjected to "a barrage of intrusive questions" (Pet. 13) is belied by the routine nature of the questions that were asked, which concerned petitioner's origin, destination and purpose. /5/ Indeed, the fact that upon the trooper's request to search petitioner immediately left the patrol car and walked back to his own vehicle is strong evidence that petitioner was not under official restraint and did not feel that he was. See Pet. App. C3. /6/ Even if petitioner was not free to leave at the time he consented to the search of his car, his detention was justified independently of the initial stop: as the district court noted, petitioner became progressively more nervous during the course of the traffic stop, even after learning that the trooper intended to issue only a warning ticket. That behavior provided suspicion enough for the trooper to ascertain whether petitioner's nervousness was caused by the presence of drugs or other contraband in his car. Pet. App. C5. /7/ Although Matlock was decided before the Federal Rules of Evidence became effective, Rules 104(a) and 1101(d)(1) expressly provide that the Federal Rules do not apply to the resolution of preliminary fact questions concerning the admissibility of evidence. /8/ Petitioner's reliance (Pet. 24) on Jarret v. United States, 822 F.2d 1438, 1446 (7th Cir. 1987), is misplaced. Jarret involved impeachment of a witness at trial, which is governed by the Federal Rules of Evidence; the case did not address the question of impeachment of a witness during a pre-trial suppression hearing. /9/ See, e.g., United States v. LaGuardia, 902 F.2d 1010, 1013-1017 (1st Cir. 1990); United States v. Lewis, 896 F.2d 246, 249 (7th Cir. 1990); United States v. Francois, 889 F.2d 1341 (3d Cir. 1989), cert. denied, 110 S. Ct. 1822 (1990); United States v. Huerta, 878 F.2d 89, 91-94 (2d Cir. 1989), cert. denied, 110 S. Ct. 845 (1990); United States v. Grant, 886 F.2d 1513 (8th Cir. 1989); United States v. Ayarza, 874 F.2d 647 (9th Cir. 1989), cert. denied, 110 S. Ct. 847 (1990); United States v. Musser, 856 F.2d 1484, 1487 (11th Cir. 1988), cert. denied, 489 U.S. 1022 (1989); Sutton v. United States, 909 F.2d 1478 (3d Cir. 1990), cert. denied, 111 S. Ct. 759 (1991). /10/ Indeed, we are not aware of any court of appeals decision holding that a prosecutor's refusal to file a "substantial assistance" motion was taken in bad faith. Compare United States v. Brown, 912 F.2d 453 (10th Cir. 1990); United States v. Spees, 911 F.2d 126, 127 (8th Cir. 1990); United States v. Smitherson, 889 F.2d 189, 190 (8th Cir. 1989).