JOHN J. MAGUIRE, PETITIONER V. UNITED STATES OF AMERICA

   No. 90-6759

   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 First Circuit

   Brief For The United States In Opposition

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-40a) is reported
at 918 F.2d 254.  The opinion of the district court denying motions to
suppress (Pet. App. 1b-5b) is not reported.

                             JURISDICTION

   The judgment of the court of appeals was entered on November 2,
1990.  The petition for a writ of certiorari was filed on January 8,
1991.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                          QUESTIONS PRESENTED

   1. Whether the warrantless search of bags inside a car trunk was
lawful when the police had probable cause to believe that the car
itself was an instrumentality of a crime and that it contained
contraband or other evidence of crime both in the bags and elsewhere
in the car.

   2. Whether the court of appeals correctly found that the police had
probable cause to arrest petitioner and his companion.

                               STATEMENT

   Following a jury trial in the United States District Court for the
District of Massachusetts, petitioner was convicted on one count of
armed bank robbery, in violation of 18 U.S.C. 2113(d), one count of
conspiracy to commit that crime, in violation of 18 U.S.C. 371, and
one count of using a firearm during a crime of violence, in violation
of 18 U.S.C. 924(c).  The district court sentenced him to concurrent
262-month terms of imprisonment on the bank robbery and conspiracy
offenses, and a consecutive term of 60 months on the firearm offense,
to be followed by 60 months' supervised release.  The district court
also ordered petitioner to pay $29,933 in restitution.  The court of
appeals affirmed.

   1. On October 18, 1988, at about 12:30 p.m., three armed men
wearing nylon stocking masks robbed a branch of the Bank of New
England in Braintree, Massachusetts.  Petitioner was identified as one
of the two robbers who jumped over the counter and took cash from the
tellers' drawers.  Petitioner, who was armed with a small handgun,
pushed a teller into a closet.  The third robber brandished a large,
long-barreled gun in the lobby.  The three men left with $29,985.45 in
cash and escaped in a waiting car, driven by a fourth man.  Pet. App.
5a.

   While the robbery was in progress, one of the bank tellers tripped
the bank's silent alarm system, and the police broadcast a
bank-robbery-in-progress report over police radio.  Lt. Donald Murphy,
an off-duty police officer, heard the report while he was at home.
Murphy, a 16-year veteran of the Braintree Police Department, knew
from prior experience that other robbers of the Braintree Branch of
the Bank of New England had switched getaway cars at the South Shore
Plaza, which is less than one mile from his home and from the Bank.
Murphy immediately drove towards the plaza in his private, unmarked
truck.  Pet. App. 5a-6a.

   En route to the plaza, Lt. Murphy heard another police radio report
stating that the three armed men had fled the bank by car.  Drawing on
his experience, Murphy assumed that there was a fourth man driving the
car, and he also assumed the men were white, since the report did not
identify their race.  As he neared the plaza, Murphy saw four men,
each carrying a bag, climbing down a highway embankment and crawling
through a fence that separated the embankment from the street that
runs alongside the plaza.  /1/ At this point, two minutes had passed
since the initial report of the robbery.  Pet. App. 9a.  The men
brushed off their pants and neatened their hair as they stopped to
cross the street;  crossing it, they passed within a few feet in front
of Murphy's truck.  The men conferred briefly, then split into pairs
and walked to two cars in the parking lot of the plaza, an Oldsmobile
and a Hyundai.  Each man placed the bag he was carrying in the trunk
of one of the cars.  Murphy noticed that one bag, a blue and tan one
carried by petitioner, appeared to be quite heavy, and of the size and
shape it would be if it contained guns and money.  Id. at 10a.  That
bag and another were placed in the trunk of the Oldsmobile.  Murphy
recorded the license plate numbers of both cars, radioed for backup,
and followed the Oldsmobile out of the parking lot.  Id. at 6a-7a.

   As he followed the car Murphy saw both of its occupants bend over
as if they were changing their shoes, and he observed the car swerve
as petitioner, who was driving, changed his jacket.  Suddenly, the car
made an U-turn into a gas station.  When Murphy showed the men his
police radio so they could see that he was a police officer and that
he was following them, petitioner shifted into reverse, as if to
escape.  By that time, however, another police car had arrived, which
blocked the car's escape.  The men were ordered out of the car and
frisked.  When asked, petitioner denied that he had been at the South
Shore Plaza.  Pet. App. 7a.

   Murphy searched the car, including its trunk.  He felt two guns in
the blue and tan bag, opened it, and found two loaded revolvers
inside.  He also opened a paper bag, which contained a radar detector
and a police scanner.  Petitioner admitted that he had no permit for
the guns, and the two men were arrested.  Pet. App. 7a-8a.

   2. The district court denied petitioner's motion to suppress the
evidence seized from the Oldsmobile, finding that Lt. Murphy had
probable cause to believe that the car's occupants were the bank
robbers and that the car contained "guns, money and other items
related to the bank robbery." Pet. App. 4b.  The court further held
that the car was "not merely incidental * * * but a significant
instrumentality in the completion of the crime," id. at 5b, and
therefore the bags contained in the trunk "may be treated as part of
the automobile." Ibid.

   3. The court of appeals affirmed.  The court first concluded that
the police had probable cause to arrest petitioner, given the
"totality of the circumstances," including Officer Murphy's experience
with bank robberies and the "tightly forged chain of circumstances,"
Pet. App. 9a, surrounding the arrest.  Id. at 8a-13a.  The court held
further that the officers had probable cause to search both the
interior and the trunk of the car because they could reasonably
believe that the entire car contained evidence of the bank robbery.
Pet. App. 14a-18a.

   The court of appeals distinguished this case from United States v.
Chadwick, 433 U.S. 1 (1977), and Arkansas v. Sanders, 442 U.S. 753
(1979), both of which held that coincidental placement in a car of
luggage suspected to contain drugs did not justify a warrantless
search of that luggage under the vehicle exception to the warrant
requirement.  Here, in contrast, "the relationship between the * * *
car and the contraband was scarcely coincidental," Pet. App. 16a,
since the car itself was "an instrumentality of the crime." Ibid.
Unlike Chadwick and Sanders, the entire car, and not just the
containers within it, probably contained evidence of the crime.  Thus,
relying on United States v. Ross, 456 U.S. 798 (1982), the court of
appeals held that the search of the containers was lawful.  Pet. App.
15a-18a.

                               ARGUMENT

   1. Petitioner contends (Pet. 10-15) that the decision of the court
of appeals conflicts with this Court's decisions in Chadwick, Sanders
and Ross.

   Chadwick involved the warrantless search of a footlocker that had
aroused the suspicion of federal agents when it was loaded onto a
train, and that provoked a positive alert from a drug-sniffing police
dog.  Rather than seizing the footlocker at that time, the agents
waited until its owner arrived and placed it in his car.  At that
point, although there was no cause to search the car itself, they
seized the car and searched the footlocker, revealing the marijuana
that was stored inside.  This Court held that search to be
unreasonable, and not within the "automobile exception" to the warrant
requirement, on the ground that "a person's expectations of privacy in
personal luggage are substantially greater than in an automobile."
Chadwick, 433 U.S. at 13.

   The holding of Chadwick was illuminated by Sanders, which presented
closely similar facts.  In both cases, "it was the luggage being
transported by respondent at the time of the arrest, not the
automobile in which it was being carried, that was the suspected locus
of the contraband.  The relationship between the automobile and the
contraband (in Sanders) was purely coincidental, as in Chadwick."
Ross, 456 U.S. at 813 (quoting Sanders, 442 U.S. at 766-767 (Burger,
C.J., concurring)) (emphasis in original).

   In Ross, police learned that Ross was selling drugs from his car.
They arrested him and searched the car, including containers found in
it that contained drugs.  This Court upheld the search of the
containers, stating that "an individual's expectation of privacy in a
vehicle and its contents may not survive if probable cause is given to
believe that the vehicle is transporting contraband.  * * * The scope
of a warrantless search of an automobile thus is not defined by the
nature of the container in which the contraband is secreted.  Rather,
it is defined by the object of the search and the places in which
there is probable cause to believe that it may be found." Ross, 456
U.S. at 798-799;  see United States v. Johns, 469 U.S. 478 (1985).

   The court of appeals correctly held that Ross, and not Chadwick or
Sanders, applied to this case.  The car from which the evidence was
seized was not simply incidental to the crime as a storage space for
suspected containers;  instead it had been deliberately left in the
parking lot for use as a getaway car.  The police could have found
evidence of the crime anywhere in the car -- indeed, the car itself
was evidence of the robbery -- and they therefore had the right to
search the entire car, and not just the bags in the trunk.  For
example, police observed petitioner and his passenger changing their
shoes and coats while they drove:  the discarded clothing could have
provided evidence to aid in the identification of the robbers by
witnesses.  /2/ Unlike Chadwick and Sanders, police suspicion had
focused not just on the bags, but on the entire car, as in Ross.  As
the court of appeals held, the car "was not simply a repository for
contraband." Pet. App. 16a.

   Petitioner also argues (Pet. 7-10) that his petition should be held
pending this Court's decision in California v. Acevedo, (No. 89-1690,
argued Jan. 8, 1991), which, he claims, will control the outcome of
this case.

   That contention is incorrect.  In Acevedo, police officers observed
Acevedo leave an apartment that was the suspected locus of marijuana
dealing, carrying a brown paper bag that looked as if it contained
marijuana.  Acevedo placed the bag in the trunk of his car and was
promptly stopped by the police, who searched the trunk and the bag.
The police believed that marijuana would be found only in the paper
bag and nowhere else;  no suspicion was directed at the automobile
itself, and it was simply fortuitous that the bag had been placed in a
car.  People v. Acevedo, 216 Cal. App. 3d 586, 587-589, 265 Cal. Rptr.
23, 25-27 (1989).  /3/ In other words, Acevedo revisits Chadwick;
petitioner in Acevedo has asked this Court to overrule Chadwick.  Br.
for Pet. 35-36.  Since the instant case is controlled by Ross and not
by Chadwick, the outcome of Acevedo is irrelevant here.

   2. Petitioner also contends (Pet. 15-22) that the court of appeals
erred in finding that the officers had probable cause to arrest him
and that his seizure was therefore unlawful.  He claims that this
Court's decision in California v. Hodari D., No. 89-1632, argued Jan.
14, 1991, may control this case and that it should be held pending
that decision.

   The question in Hodari D. is whether a police officer's pursuit of
a youth who fled upon seeing the officer constituted a "seizure"
within the meaning of the Fourth Amendment, before the youth was
physically captured.  That case is completely irrelevant here, where
there is no question that petitioner was seized when the officers
converged on him and his companion and ordered them to stop.  /4/

   Both courts below correctly concluded that the police had probable
cause to make an arrest when they stopped petitioner's car.  After Lt.
Murphy, an experienced police officer, learned of the bank robbery, he
correctly deduced that four white men were involved;  within minutes
of the report, he saw four such men, each carrying a bag, one of which
was the shape and weight of a bag that contained guns and money.  From
Murphy's experience with previous bank robberies at the very branch
that had just been robbed, he believed that the robbers would likely
use a certain parking lot to switch getaway cars, as the other
would-be robbers had done.  Sure enough, the four men climbed down an
expressway embankment, an unusual place to be, through a fence, and
toward the very parking lot on which Murphy's suspicions had focused.
They split up and entered separate cars, inside of which they appeared
to be changing clothes, as if to conceal their identities.  The driver
made an abrupt U-turn into a gas station, and attempted to flee once
Murphy revealed his identity.  When asked if he had come from the
parking lot from which Murphy had followed him, petitioner lied and
said no.  On these facts, the police had probable cause to believe
that petitioner and his companion were two of the bank robbers.  /5/

   The conclusion of both courts below that the circumstances of this
case provided the officers with probable cause is the kind of
fact-bound determination that does not merit further review by this
Court.  The district court and court of appeals assessment of the
facts in this case represent a reasonable analysis of the totality of
the circumstances according to the proper standard of practical and
common sense notions of "probabilities." Cf. Illinois v. Gates, 462
U.S. 213, 231-232 (1983).

                              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

   KATHLEEN A. FELTON

      Attorney

   MARCH 1991

   /1/ The only way to get from the highway to the South Shore Plaza
is by climbing down the embankment.  Within an hour, the car in which
the robbers had escaped was found abandoned on the expressway adjacent
to the embankment, about 20 yards from where the four men had crawled
through the fence.

   /2/ In fact, the search of the car revealed a police scanner that
had been placed there before the robbery.  Pet. App. 16a.

   /3/ The California Court of Appeal held that the case fell squarely
within Chadwick and Sanders, and ruled that the automobile exception
did not apply to the bag;  the court held that Ross did not apply for
the same reasons.  265 Cal. Rptr. at 27.

   /4/ There was never any contention that a seizure occurred before
petitioner's car was blocked and he was ordered to stop.  The court of
appeals found it unclear whether the stop of petitioner constituted a
Terry stop or an arrest, but found it unnecessary to decide the issue,
on the ground that the police had probable cause to justify a formal
arrest at the point when they stopped the car.  Pet. App. 9a-13a.

   /5/ Petitioner contends in passing that his statements to Lt.
Murphy that he did not have a gun permit and that he had not been at
the South Shore Plaza should have been suppressed due to a failure to
give Miranda warnings at the scene of the arrest.  The court of
appeals held this error, if it was one, to have been harmless, as
petitioner was not charged with illegal firearm possession.  Pet. App.
21a.