CRESCENCIANO PENA, PETITIONER V. UNITED STATES OF AMERICA No. 90-7324 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 OPINION BELOW The opinion of the court of appeals (Pet. App. 1-25) is reported at 920 F.2d 1509. JURISDICTION The judgment of the court of appeals was entered on December 4, 1990. The petition for a writ of certiorari was filed on March 4, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether a police officer violated the Fourth Amendment when, after obtaining consent to search petitioner's automobile for drugs or guns, he unscrewed an air vent panel on the rear quarter of the car to discover boxes containing cocaine. 2. Whether petitioner's sentence to a mandatory minimum term of 20 years' imprisonment under 21 U.S.C. 841(b)(1)(A)(ii) constituted cruel and unusual punishment in violation of the Eighth Amendment. STATEMENT After a jury trial in the United States District Court for the District of Wyoming, petitioner was convicted of possession of cocaine with the intent to distribute it, in violation of 21 U.S.C. 841(a)(1). He was sentenced to 20 years' imprisonment to be followed by 10 years' supervised release under 21 U.S.C. 841(b)(1)(A)(ii). Pet. App. 2. The court of appeals affirmed. Id. at 1-25. 1. On April 15, 1988, Wyoming highway patrolman Leonard Declercq stopped the car petitioner was driving for speeding. As he approached the car, he saw that the trunk lock had been punched out, which led him to suspect that the car had been stolen. Declercq asked petitioner for his driver's license and the car registration. Petitioner produced a valid driver's license, but did not have the car registration. Petitioner explained that the car belonged to his brother and that he was en route to Chicago to visit his sick mother. Pet. App. 3. Declercq was unable to conduct a warrant check through the NCIC computer because the computer was down, but a registration check disclosed that the car was registered to Yolanda Diaz. Declercq once again questioned petitioner about the ownership of the car and his destination. Petitioner repeated that the car belonged to his brother, but this time claimed that he was on his way to Ohio. In response to Declercq's inquiry, petitioner stated that he did not know Yolanda Diaz. Declercq advised petitioner that the car was registered in Diaz's name and asked him if he had her permission to drive the car. In response, petitioner merely shrugged his shoulders. Pet. App. 3-4. Declercq asked petitioner if he knew what was in the trunk. Petitioner stated that there was nothing there, invited Declercq to look inside, and opened the trunk with a screwdriver. After discovering nothing of consequence in the trunk, Declercq walked up to the passenger side of the front seat, and petitioner, unsolicited, unlocked the door. Declercq opened it and asked to look inside. Petitioner indicated that he did not mind. In response to Declercq's inquiry whether he had any narcotics or firearms in the vehicle, petitioner responded "no." Noticing that the rear bottom seat cushion was ajar, Declercq sought and received petitioner's consent to remove a blue suitcase lying on the seat. Pet. App. 4-5. Entering the backseat of the car, Declercq looked under the seat and found nothing. However, he observed loose, crooked, and missing screws on the interior molding and tool marks on the screws and molding. While Declercq was inside the car, petitioner placed the blue suitcase on the trunk of the car and opened it, absent any request by Declercq that he do so. Ibid. Declercq got out of the car, tapped on the outer rear fender on the passenger side, and heard a solid thud. Declercq also observed that the two screws holding the vent plate cover to the body of the car had tool marks on them, and had apparently been tampered with. Believing that this area should normally be hollow, Declercq probed with a pen the vent opening in the rear quarter panel where the passenger door closed. He struck a solid object that moved when he applied pressure to it. During this period, petitioner, who had been extremely nervous throughout the encounter, walked some 15 feet away from the car and paid no attention to the officer. Declercq unscrewed the rear quarter panel vent and removed it and a piece of cardboard that was under it, revealing four or five white boxes within the vent opening. Id. at 5-6. Declercq asked petitioner what was inside the boxes and where they had come from. Petitioner responded that he did not know. Declercq then arrested petitioner. A field test revealed that the boxes contained cocaine. As Declercq attempted to advise petitioner of his Miranda rights, petitioner volunteered that "some guy" had given him the car to drive. A subsequent warrant search of the automobile yielded more than 19 kilograms of cocaine. Id. at 6. 2. Following his indictment on a charge of possession with intent to distribute cocaine, petitioner moved to suppress the evidence seized during the search of his car. After conducting an evidentiary hearing, the district court denied the motion. The court found that the initial stop of petitioner's car was reasonable and that Declercq was justified in delaying petitioner to investigate whether the car was stolen. Id. at 9-10. The court further found that petitioner had "clearly and unequivocally consented" to the search of his car, and that the search of the vent area of the car fell within the scope of petitioner's consent. Id. at 8, 11. Following petitioner's conviction on a plea of guilty, the district court sentenced petitioner, who had a prior drug felony conviction in 1983 for conspiracy to possess heroin with intent to distribute it (21 U.S.C. 846), to the mandatory minimum term of 20 years' imprisonment as required by the pertinent penalty provision, 21 U.S.C. 841(b)(1)(A), which sets forth the penalties for a person with a prior conviction for a felony drug offense who is convicted of possessing five kilograms or more of cocaine with intent to distribute it. Pet. App. 2, 18. In sentencing petitioner, the district court noted that the instant case involved one of the largest seizures of drugs (valued at over $7 million) that had ever occurred in Wyoming. Pet. 9; Pet. App. 20. 3. The court of appeals affirmed. Pet. App. 1-25. The court upheld the district court's findings that petitioner had consented to the search of his car and that the search remained within the boundaries of petitioner's consent. Id. at 11-12. The court also held that petitioner's 20-year term of imprisonment, as required under 21 U.S.C. 841((b)(1)(A), did not violate the Eighth Amendment's proscription against cruel and unusual punishment. Pet. App. 17-21. ARGUMENT 1. Petitioner contends (Pet. 6-9) that Patrolman Declercq's removal of the air vent panel from his car exceeded the scope of his consent. The issue whether a general and unrestricted consent to search an automobile authorizes the search of closed containers found during the search is presently before the Court in Florida v. Jimeno, No. 90-622, cert. granted, 111 S. Ct. 554 (1990). In that case, the police, after obtaining consent to search respondents' automobile for drugs, opened a paper bag that they found lying on the floor in the passenger compartment of the car. For the reasons outlined in the government's brief as amicus curiae in that case, we believe that Patrolman Declercq did not exceed the scope of petitioner's consent when he unscrewed the air vent plate from the side of the car to look inside. /1/ As we argued in our brief in Jimeno, at 6, an unqualified consent to search a car for drugs and weapons, such as occurred here, "should ordinarily be construed to permit the police to examine any closed containers within the car that could be used as receptacles for drugs (and weapons) and can be opened without causing significant property damage." If a magistrate had issued a warrant to search petitioner's car for narcotics and weapons, Declercq clearly could have removed the air vent plate and looked inside. This is so because "absent some express or implied limitation, the search of a car is reasonably understood to contemplate not only an examination of the interior features of the car itself, but also an examination of any containers found inside the car that might contain the objects for which the search was authorized." Ibid. Petitioner's consent should have the same effect. Immediately after asking petitioner's permission to look inside the car and before removing the air vent plate, Declercq asked petitioner whether he had any narcotics or firearms inside the car. Implicit in Declercq's request to search, then, was an intent to search for those items. Petitioner gave Declercq general and unrestricted permission to search the automobile, which he did not limit in any fashion even upon learning that Declercq was searching for guns or drugs. Because either item might be hidden underneath the air vent panel, Declercq's action in removing the panel in a manner that caused no damage to petitioner's car did not go beyond the scope of petitioner's consent. Further, as the court of appeals noted (Pet. App. 12), petitioner unlatched the trunk himself with a screwdriver, unlocked the passenger door of the car, and, without being asked, opened his suitcase, presumably for Declercq's inspection. Nor did he object when Declercq looked under the rear seat. And, "while Declercq focused his attention on the rear quarter panel (of the car, petitioner), apparently unconcerned, walked some distance from the vehicle." Petitioner at no time objected to or expressed any concern about Declercq's activities, nor attempted to circumscribe or withdraw his consent. In these circumstances, the court of appeals properly found that "(t)he search was conducted within the general scope of the permission granted." Pet. App. 12. However, there is no need to hold this case pending disposition of Florida v. Jimeno, No. 90-622. First, petitioner had no standing to contest the search, since he failed to establish a legitimate expectation of privacy in the car. Petitioner was required, at a minimum, to show that he gained possession of the car from the owner or someone with authority to grant possession. The record establishes, however, that the car was registered to Yolanda Diaz, whom petitioner claimed not to know. Moreover, when asked whether he had Diaz's permission to drive the car, petitioner merely shrugged his shoulders. Further, petitioner gave contradictory accounts as to the car's ownership. When initially stopped by Declercq, petitioner claimed that the car belonged to his brother. Following his arrest, petitioner claimed that "some guy" had given him the car to drive. At the hearing on petitioner's motion to suppress, petitioner offered no evidence -- indeed, did not even allege -- that he was in lawful possession of the vehicle. In similar circumstances, the courts of appeals have concluded that the defendant had no legitimate expectation of privacy in the vehicle searched. See United States v. Obregon, 748 F.2d 1371, 1374-1375 (10th Cir. 1984); United States v. Erickson, 732 F.3d 788, 790 (10th Cir. 1984); United States v. Glasgow, 658 F.2d 1036, 1044 (5th Cir. 1981); United States v. Sanchez, 635 F.2d 47, 63-64 (2d Cir. 1980); United States v. Smith, 621 F.2d 483, 486-488 (2d Cir. 1980), cert. denied, 449 U.S. 1086 (1981); see also United States v. Ospina, 682 F. Supp. 1182, 1184 (D. Utah 1988). Second, even assuming that Declercq's removal of the air vent plate exceeded the scope of petitioner's consent to search, removal of the vent plate was still justified because, prior to removing the vent plate, Declercq had acquired probable cause to believe that contraband was hidden underneath the rear quarter panel of the car. Petitioner had been caught speeding in a car whose car lock had been punched out. The car was registered to someone else, and petitioner was unable satisfactorily to explain how he came into possession of the car. The screws on the inside molding of the rear passenger side had been tampered with: they were either missing, or were loose and crooked and covered with tool marks. Similarly, the screws on the air vent plate on the right rear quarter panel of the car also had tool marks on them. When Declercq thumped the outer rear fender on the passenger side he heard a solid thud, indicating that something was hidden inside what should have been a hollow space. The circumstances thus gave rise to a "fair probability" that petitioner had committed a crime and that evidence of the crime could be found underneath the car's paneling. Declercq was therefore justified in conducting a further warrantless search into that area of the car. See Illinois v. Gates, 462 U.S. 213, 238 (1983); United States v. Ross, 456 U.S. 798, 804-809 (1982). 2. Petitioner also contends (Pet. 9-12) that the 20-year minimum mandatory sentence he received violated the Eighth Amendment's proscription against cruel and unusual punishment as construed in Solem v. Helm, 463 U.S. 277 (1983). The decision in Solem does not require that petitioner's sentence be overturned. In Solem, 463 U.S. at 290, the Court held that the Eighth Amendment requires that a "criminal sentence must be proportionate to the crime for which the defendant has been convicted." The Court listed three factors for evaluating the proportionality of a sentence: (1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for the same crime in other jurisdictions. Id. at 292. Applying this analytical framework to the case before it, which involved a sentence of life imprisonment without possibility of parole under a state recidivist statute for uttering a $100 check, the Court concluded that the sentence was disproportionately harsh and, therefore, violated the Eighth Amendment (id. at 295-303). However, the Court made clear that "(o)utside the context of capital punishment, successful challenges to the proportionality of particular sentences (will be) exceedingly rare." Id. at 289-290 (quoting Rummel v. Estelle, 445 U.S. 263, 272 (1980)); see also Hutto v. Davis, 454 U.S. 370, 374 (1982). Accordingly, Solem itself, and cases following it, have made clear that serious crimes such as drug trafficking may constitutionally result in the imposition of sentences as severe as life imprisonment without parole. In Solem, for example, the Court repeatedly noted that the offender's crime and his previous offenses were "among the less serious offenses" and "relatively minor." Id. at 296-297; see also id. at 300. The Court explicitly contrasted such petty offenses with "very serious offenses" such as "a third offense of heroin dealing." Id. at 299. Unlike the defendant in Solem, who uttered a forged check for $100, petitioner was convicted of possessing with intent to distribute 19 kilograms of cocaine with a value of more than $7 million. Congress has determined that the harm to society occasioned by the distribution of illegal drugs is so grave as to require severe penalties. Indeed, each time Congress has amended 21 U.S.C. 841 in the last decade -- in 1984, 1986, and 1988 -- it has made the penalties more severe and increased the range of criminal conduct. See 21 U.S.C. 841 note. Thus, the mandatory minimum sentences provided in 21 U.S.C. 841(b)(1)(A) are a clear reflection of Congress' intent to deal harshly with those who possess a sizable quantity of drugs with intent to distribute, and in particular with those, like petitioner, who have a history of drug trafficking. The Court has recognized the primary role of the legislature in determining the appropriate punishment for criminal behavior. The Court noted in Solem that "(r)eviewing courts * * * should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes. 463 U.S. at 290; see also id. at 290 n.16. In other Eighth Amendment cases as well, the Court has expressed its "reluctance to review legislatively mandated terms of imprisonment." Rummel v. Estelle, 445 U.S. at 274; Hutto v. Davis, 454 U.S. at 374. See Gore v. United States, 357 U.S. 386, 393 (1958) (respect due to the legislature in classifying criminal behavior and determining to what extent the goals of retribution, deterrence, and rehabilitation are to be served by punishments). In accordance with these principles, the courts of appeals to consider the issue have uniformly rejected Eighth Amendment challenges to the minimum mandatory sentencing scheme contained in 21 U.S.C. 841. See United States v. Kidder, 869 F.2d 1328, 1333-1334 (9th Cir. 1989); United States v. Ramos, 861 F.2d 228, 232 (9th Cir. 1988); United States v. Klein, 860 F.2d 1489, 1495-1499 (9th Cir. 1988); United States v. Rodriguez-Suarez, 856 F.2d 135, 137 (11th Cir. 1988), cert. denied, 488 U.S. 1045 (1989); United States v. Solomon, 848 F.2d 156, 157 (11th Cir. 1988); United States v. Savinovich, 845 F.2d 834, 839-840 (9th Cir.), cert. denied, 488 U.S. 943 (1988); United States v. Holmes, 838 F.2d 1175, 1178-1179 (11th Cir.), cert. denied, 486 U.S. 1058 (1988). See also United States v. Whitehead, 849 F.2d 849, 860 (4th Cir.), cert. denied, 488 U.S. 983 (1988). Moreover, unlike the defendant in Solem -- who was given the maximum possible sentence within a broad range at the judge's discretion -- petitioner here was sentenced to a legislatively mandated term of imprisonment. As the government recently explained in its brief as amicus curiae in Harmelin v. Michigan, No. 89-7272, at 22 /2/ : For the court to set aside the sentence in (a case where a determinate sentence is fixed by statute) would require it to reject not the judgment of a single sentencing judge, but the considered judgment of (a) legislature that persons convicted of a large-scale drug offense should be sentenced to life imprisonment without parole. That kind of legislative judgment is one that this Court has properly refrained from disturbing. Petitioner nonetheless contends (Pet. 11) that his sentence is unduly harsh because he was merely a courier. As an initial matter, as the court of appeals noted (Pet. App. 20), petitioner was sentenced to the minimum mandatory term of imprisonment that he could have received under the statute. Further, that petitioner's level of participation may have been different from that of others in the drug scheme, does not establish that he was any less culpable. As the court noted in United States v. Rodriguez-Suarez, 856 F.2d at 137 n.1: No drug operation can survive without the services of (couriers). While couriers may not share the same authority as others involved in a drug operation, they are nonetheless indispensable to the success of the operation, and thus Congress could certainly conclude that they are an appropriate target in the effort to halt the flow of illegal drugs into and around the nation. See also United States v. Arredondo-Santos, 911 F.2d 424, 426 (10th Cir. 1980) (To argue that one * * * participant (in a criminal scheme) is more or less culpable than another is not productive. The services or contributions of each may be indispensable to the completion of the crime"). In sum, the decision of the court of appeals rejecting petitioner's Eighth Amendment challenge to his sentence is consistent with Solem and accords with the analysis employed by the other courts that have considered similar challenges. Further review is therefore unwarranted. /3/ 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 DEBORAH WATSON Attorney MAY 1991 /1/ We are providing petitioner with a copy of the government's brief as amicus curiae in Jimeno. /2/ We are providing petitioner with a copy of the government's brief in Harmelin. /3/ There is no need to hold this case pending the disposition of Harmelin v. Michigan, No. 89-7272, which differs from the instant case in critical respects. In Harmelin, the defendant received a sentence of life imprisonment without parole for a first offense of possession of cocaine. Petitioner's sentence was not nearly so harsh, his offense involved a larger quantity of drugs, and he had previously been convicted of a drug felony. Accordingly, it is highly unlikely that the outcome of this case will be in any way affected by the disposition of Harmelin.