DANIEL JOSEPH BOYER, PETITIONER V. UNITED STATES OF AMERICA No. 90-6465 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 Eighth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A1-A5) is reported at 914 F.2d 144. JURISDICTION The judgment of the court of appeals was entered on September 11, 1990. A petition for rehearing was denied on October 29, 1990. Pet. App. A6. The petition for a writ of certiorari was filed on December 10, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the warrantless search of a package addressed to petitioner that had been resealed after being opened and inspected by employees of a private freight carrier was lawful under the Fourth Amendment. 2. Whether, under Edwards v. Arizona, 451 U.S. 477 (1981), law enforcement officers were required to cease questioning petitioner after he stated that he wanted to talk to a lawyer before making a tape-recorded telephone call. STATEMENT After a jury trial in the United States District Court for the Western District of Missouri, petitioner was convicted of attempting to possess methamphetamine with intent to distribute it, in violation of 21 U.S.C. 846. He was sentenced to ten years' imprisonment. The court of appeals affirmed. Pet. App. A1-A5. 1. On July 1, 1989, the Federal Express office in Los Angeles received for shipment to Kansas City, Missouri, a "suspicious-looking" package addressed to petitioner. Pet. App. A1. A Federal Express employee opened the package and discovered that it contained a powdery substance that he believed to be narcotics. He resealed the package and, after notifying the security office at the Federal Express regional headquarters in Memphis, Tennessee, forwarded the package to that office. On July 2, 1989, two Federal Express employees in Memphis opened the package and examined and weighed its contents. They then resealed the package and sent it to the Federal Express office in Kansas City. Employees of Federal Express in Kansas City contacted the local office of the Drug Enforcement Administration (DEA) and described the carriers' searches of the package and what they revealed. Pet. App. A1-A2; Gov't C.A. Br. 4. On July 3, 1989, DEA Agent Carl Hicks retrieved the package from the Federal Express office and opened it to find a large plastic bag containing a brown substance. He removed the substance, tested it, and determined that it was methamphetamine. Hicks then placed a counterfeit substance, along with a small amount of the methamphetamine, inside the package and resealed it. Later that day, Agent Hicks, posing as a Federal Express deliveryman, went to petitioner's trailer to deliver the package. After petitioner accepted the package, he was arrested. Pet. App. A2; Gov't C.A. Br. 4-5. The officers advised petitioner of his Miranda rights, and he stated that he understood those rights and agreed to answer questions. Petitioner answered one question, but refused to respond to a question about who had sent him the package. Agent Hicks then asked petitioner if he would assist the officers by making a tape-recorded telephone call to the person who sent him the methamphetamine. Petitioner stated that he wanted to speak to an attorney before making a tape-recorded call, but he agreed to answer any other questions. /1/ When Agent Hicks asked petitioner what he had done with the airbill that accompanied the Federal Express package, petitioner replied that he had flushed it down the toilet. Pet. App. A2; Gov't C.A. Br. 5-6. Before trial, petitioner moved to suppress evidence obtained through the warrantless search of the Federal Express package and to suppress the statements he made to the law enforcement officers after his arrest. The district court denied the motion. Gov't C.A. Br. 3. 2. The court of appeals upheld the district court's ruling and affirmed petitioner's conviction. Pet. App. A1-A5. The court of appeals held that the warrantless search of the Federal Express package did not violate petitioner's Fourth Amendment rights. In so holding, the court relied on United States v. Jacobsen, 466 U.S. 109 (1984), in which this Court upheld the warrantless search of a package that had previously been opened by Federal Express employees. The court below rejected petitioner's argument that the present case was distinguishable from Jacobsen on the grounds that here the Federal Express employees resealed the package before turning it over to the authorities. The court reasoned that Jacobsen was "based upon the premise that the Fourth Amendment is not violated when a government agent '(views) what a private party * * * freely made available for his inspection'" (Pet. App. A4 (quoting Jacobsen, 466 U.S. at 119)), and that the applicability of Jacobsen therefore "does not turn on whether the private party hands the package over to the government in a sealed or unsealed condition" (Pet. App. A4). Because the DEA agent's search of petitioner's package was no broader than the private search by Federal Express employees, the court concluded that the warrantless search was lawful. Ibid. The court of appeals also concluded that the district court properly refused to suppress the statements petitioner made after his arrest. The court of appeals rejected petitioner's reliance on Edwards v. Arizona, 451 U.S. 477 (1981), in which this Court held that once a suspect invokes his right to have counsel present during custodial interrogation, all police-initiated questioning must cease until an attorney is provided. In this case, the court of appeals found, petitioner "only conditionally invoked his right to counsel" when he stated that he wanted to speak to an attorney before agreeing to make a tape-recorded telephone call to the person who had sent the package. Pet. App. A4. The court accordingly held that, under Connecticut v. Barrett, 479 U.S. 523 (1987), petitioner's limited invocation of the right to counsel did not preclude the agents from continuing to question him about other matters. Pet. App. A4. ARGUMENT 1. Petitioner renews his contention (Pet. 6-7) that the warrantless search of the Federal Express package addressed to him violated his rights under the Fourth Amendment. The court of appeals correctly rejected that contention. In Jacobsen, the Court held that federal agents were not required to obtain a warrant before examining the contents of a package that had previously been opened and inspected by employees of Federal Express, a private freight carrier. 466 U.S. at 118-125. /2/ As an initial matter, the Court in Jacobsen made clear that the Fourth Amendment protection against unreasonable searches and seizures did not apply to the Federal Express employees' search of the package. See id. at 113-114 (Fourth Amendment is "wholly inapplicable 'to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official'") (quoting Blackmun, J., dissenting in Walter v. United States, 447 U.S. 649, 662 (1980)). Where such a private search is followed by a search by a government agent, the Court explained, "(t)he additional invasions of (the defendant's) privacy by the (g)overnment agent must be tested by the degree to which they exceeded the scope of the private search." Jacobsen, 466 U.S. at 115. Once the defendant's original expectation of privacy has been frustrated by the private search, the Fourth Amendment "does not prohibit governmental use of the now nonprivate information." Id. at 117. Because the federal agents in Jacobsen "did not infringe any constitutionally protected privacy interest that had not already been frustrated as the result of private conduct," the Court concluded that there was no Fourth Amendment violation. Id. at 126. In this case, petitioner does not suggest that the Federal Express employees who opened and searched the package were acting as government agents. Nor does he claim that the subsequent search by the DEA agent exceeded the scope of the private search. /3/ Petitioner's only contention is that because the Federal Express employees resealed the package before they turned it over to the DEA agent, the agent should have been required to obtain a warrant before the package was reopened. See Pet. 6. The Court in Jacobsen rejected a similar contention. In responding to Justice White's concurring opinion, the Court explained that its decision did not rest on a finding that the contents of the package were in plain view when the DEA agent arrived to examine them: JUSTICE WHITE would have this case turn on the fortuity of whether the Federal Express employees placed the tube back into the box. But in the context of their previous examination of the package, their communication of what they had learned to the agent, and their offer to have the agent inspect it, that act surely could not create any privacy interest with respect to the package that would not otherwise exist. Thus the precise character of the white powder's visibility to the naked eye is far less significant than the facts that the container could no longer support any expectation of privacy, and that it was virtually certain that it contained nothing but contraband. 466 U.S. at 120 n.17 (citation omitted). Here, as in Jacobsen, the Federal Express employees opened the package and inspected its contents, relayed the information they obtained to federal agents, and invited the agents to perform their own search of the package. The "fortuity" that the employees resealed the package before turning it over to the agents could not revive petitioner's original expectation of privacy in the package. Under these circumstances, the DEA agent's warrantless examination of the package and its contents infringed no legitimate expectation of privacy. Because "the Fourth Amendment is implicated only if the authorities use information with respect to which the expectation of privacy has not already been frustrated," id. at 117, there was no violation of petitioner's Fourth Amendment rights. 2. Petitioner also renews his contention (Pet. 8-10) that the statements he made after his arrest should have been suppressed because they were obtained in violation of his Fifth Amendment privilege against compelled self-incrimination. That contention is erroneous. In Edwards v. Arizona, 451 U.S. 477, 481-486 (1981), this Court announced a prophylactic rule for cases in which a suspect invokes his Fifth Amendment right to have counsel present during custodial interrogation. The Court held that after such a request the suspect "is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." Id. at 484-485. In Connecticut v. Barrett, 479 U.S. 523, 529-530 (1987), the Court held that the Edwards rule did not require suppression of incriminating statements made by a suspect who had indicated that he was willing to speak to the police, but that he would not make a written statement outside the presence of counsel. Observing that there was nothing ambiguous about the suspect's limited request() for counsel" (id. at 529), the Court concluded that a determination that the suspect had invoked his right to counsel for all purposes would "require * * * a disregard of the ordinary meaning" of his statement (id. at 530). The court of appeals in this case properly relied on Barrett in rejecting petitioner's Fifth Amendment claim. Here, as in Barrett, the defendant made only a limited invocation of his right to counsel, "accompanied by affirmative announcement of his willingness to speak with the authorities (about other matters)." 479 U.S. at 529. Petitioner told the agents that he wanted to speak to an attorney before assisting them by making a tape-recorded telephone call, but at the same time he agreed to answer any other questions. The "ordinary meaning" of petitioner's statements was that his request for counsel applied only to the making of a tape-recorded call. Because petitioner "made clear his intentions, and they were honored by (the agents)" (ibid.), the district court properly refused to suppress petitioner's statements. /4/ 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 NINA GOODMAN Attorney FEBRUARY 1991 /1/ At Agent Hicks' request, petitioner signed a form consenting to the search of the trailer. Pet. App. A2; Gov't C.A. Br. 6. /2/ In Jacobsen, Federal Express employees opened a damaged package and found a taped tube. They cut open the tube and discovered a plastic bag containing white powder. The employees then notified the DEA; before the DEA agents arrived, the employees placed the plastic bag back in the tube and put the tube back into the box. A DEA agent came to the Federal Express office, removed the tube from the open box and the plastic bag from the tube, took a sample of the powder from the bag, and performed a field test that identified the substance as cocaine. 466 U.S. at 111-112. /3/ The Court in Jacobsen determined that the DEA agent's field test of the powder contained in the package exceeded the scope of the private search, but concluded that "(a) chemical test that merely discloses whether or not a particular substance is cocaine does not compromise any legitimate interest in privacy." Id. at 123. /4/ Petitioner asserts (Pet. 9-10) that, in addition to requesting counsel in connection with making a phone call to the sender of the package, he indicated that he wished to speak with an attorney before answering questions about the identity of the sender. Based on this assertion, petitioner contends that the agents improperly asked him what he had done with the package's airbill. Ibid. The court of appeals concluded, contrary to petitioner's assertion, that petitioner's "request for counsel applied only to making a tape-recorded telephone call." Pet. App. A4. In any case, a request to speak with an attorney before identifying the sender of the package would not preclude questions that solely concerned petitioner's conduct with respect to the airbill. See United States v. Eirin, 778 F.2d 722, 726-728 (11th Cir. 1985).