FABIO JOSE PALACIO, PETITIONER V. UNITED STATES OF AMERICA No. 90-6275 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 Eleventh Circuit Brief For The United States In Opposition OPINIONS BELOW The judgment order of the court of appeals (Pet. App. 1-2) is not reported, but the judgment is noted at 916 F.2d 720 (Table). JURISDICTION The judgment of the court of appeals was entered on September 17, 1990. The petition for a writ of certiorari was filed on November 19, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether a warrantless search of containers that petitioner picked up from an international flight was reasonable where Customs agents had previously determined that cocaine was inside at least one of the containers and all of the containers were kept under constant surveillance. 2. Whether petitioner understood and voluntarily waived his Miranda rights. STATEMENT After a jury trial, petitioner was convicted of possession of more than five kilograms of cocaine with intent to distribute it (21 U.S.C. 841(a)(1)) and conspiracy to commit that offense (21 U.S.C. 846). On remand after an appeal by the government on a sentencing issue, the district court sentenced petitioner to concurrent prison terms of 151 months on each count, to be followed by a five-year term of supervised release. Pet. App. 5-6. The court of appeals affirmed in an unpublished judgment order. Pet. App. 1-2. 1. On June 7, 1988, a shipment of 60 styrofoam coolers, purportedly containing red snapper fish, arrived at Miami International Airport on a Challenge Airlines flight from Panama and Costa Rica. A Customs Service inspector inserted a probe into several of the coolers and discovered a white powdery substance inside one cooler that field-tested positive for cocaine. Customs agents then placed all of the coolers under surveillance. Gov't C.A. Br. 3-4. Petitioner came to the Challenge Airlines warehouse later that evening and loaded all 60 coolers onto a truck. He drove the truck to a Miami business called Riverdale Farms, where he parked it and drove off in another car. The parked truck was kept under surveillance at all times. Gov't C.A. Br. 5-6. At about 5 a.m. the next morning, petitioner returned to Riverdale Farms with his son Cesar and a man later identified as Luis Maya. After transferring several coolers from the truck onto a Riverdale Farms van, petitioner and his son drove off in the van and were immediately arrested. A subsequent search revealed that ten of the 60 coolers (consecutively numbered 45 to 54) were inside the van, and that each of those ten coolers contained several packages of cocaine concealed underneath a false panel. The total weight of the cocaine seized from the van was 59.86 kilograms. Gov't C.A. Br. 6, 8. /1/ The arresting officers advised petitioner of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), immediately following his arrest, at which time petitioner indicated he understood those rights and stated, "You caught me. I will talk to you." Petitioner then admitted that he knew cocaine was inside the coolers and that he was transporting it to his apartment. Later, at a Drug Enforcement Administration office, petitioner was provided with a form setting forth his Miranda rights in Spanish. He signed a written waiver of his rights, then made more detailed admissions of guilt. Petitioner said he had learned the night before at a meeting in his home that cocaine was inside coolers numbered 45 to 54 and that he was supposed to transport the coolers to his home where he would receive further instructions. The interviewing agent subsequently prepared a handwritten statement, which was translated into Spanish for petitioner. After making some corrections, petitioner signed the statement. Gov't C.A. Br. 7-8. 2. Petitioner moved to suppress the cocaine as the fruit of an unlawful search and he moved to suppress his post-arrest statements on the ground that he did not validly waive his rights under Miranda. The district court denied those motions, and petitioner was convicted at trial. The court of appeals affirmed. Pet. App. 1-2. The court held that the cocaine was properly admitted because the search was appropriate under the extended border search rationale. Pet. App. at 2. The court rejected petitioner's other claims on appeal without discussion. Ibid. ARGUMENT Petitioner concedes (Pet. 22, 23-24) that the Customs agents' probing of the coolers at the airport was a legitimate border search, but he renews his challenges to the introduction at trial of the cocaine seized from the van he was driving and to the introduction of his post-arrest statements. 1. The court of appeals correctly held that the coolers in the van were properly seized and searched "under the extended border search rationale." Pet. App. 2. The Eleventh Circuit, like other courts of appeals, has held that an extended border search satisfies the Fourth Amendment when the government can show (1) that the searched object has crossed the border; (2) that there has been no change in the object since it crossed the border; and (3) that the officers making the search had reasonable suspicion of criminal activity. See, e.g., United States v. Garcia, 672 F.2d 1349, 1367 (11th Cir. 1982); see also United States v. Espinoza-Seanez, 862 F.2d 526, 531 (5th Cir. 1988); United States v. Whiting, 781 F.2d 692, 696 (9th Cir. 1986). Petitioner concedes (Pet. 15) that under this established standard his Fourth Amendment claim must fail. There was no dispute that the coolers were brought to the airport in Miami on a flight from Central America. The Customs agents ensured that there was no change in the contents of the coolers by keeping them under continuous surveillance from the moment they discovered that one of the coolers contained cocaine. And petitioner cannot reasonably dispute that finding cocaine in one container during a random test gave Customs agents at least reasonable suspicion to believe that other coolers in the same shipment likewise contained cocaine. /2/ Petitioner argues, however, that the extended border search doctrine should not apply here because "the cases seem to rely on other facts as well" (Pet. 15). First, he argues that the court of appeals should have attached significance ot the fact that this case involves 60 containers, only one of which had previously been determined to contain cocaine (Pet. 15, 18-19, 23-24). Petitioner does not explain why this fact matters, and the previous courts of appeals' decisions involving extended border searches -- in most of which none of the containers had previously been searched -- do not indicate that the analysis would be any different if one of the packages had previously been opened and had confirmed the officers' suspicions. See United States v. Richards, 638 F.2d 765 (5th Cir. 1981) (upholding, under similar circumstances, a warrantless search of a package containing ten smaller packages, three of which had previously been opened and found to contain heroin). Second, petitioner argues (Pet. 15, 18, 19) that the search in this case was unreasonable because the officers failed to get a warrant to search the previously unprobed boxes even though they had "ample time" to do so. /3/ The applicability of the extended border search exception to the warrant requirement, however, does not turn on whether the officers could have secured a warrant before conducting the search. See, e.g., United States v. Whiting, 781 F.2d 692, 695 (9th Cir. 1986). The rationale of the exception is that a package may be searched at the border without a warrant or probable cause, and the owner of the package does not acquire sufficient additional privacy interests in the package to trigger the warrant and probable cause requirements when the package remains in the same condition as when it crossed the border. Finally, petitioner argues (Pet. 15) that the search was unreasonable because it "took place at a time and location distant from the initial probe." While the passage of time and distance might in some cases make it more difficult for the government to show that the containers were in the same condition when they entered the country as when they were searched, there is no question that the government was able to satisfy that requirement in this case. The coolers were kept under constant surveillance, and the search took place only 12 hours after petitioner picked up the coolers from the airport, during most of which time the coolers sat unattended but under constant surveillance at the airport or in the truck at Riverdale Farms. 2. There is no merit to petitioner's claim (Pet. 25-32) that his post-arrest statements should have been suppressed because Officer Guzman's command of Spanish was insufficient to advise petitioner of his rights under Miranda v. Arizona, 384 U.S. 436 (1966). Evidence was introduced at the suppression hearing and at trial that petitioner was advised of his rights orally in Spanish immediately following his arrest, that he indicated he understood his rights, and that he then volunteered, "You caught me. I will talk to you." While Officer Guzman did not claim to speak fluent Spanish, he had at least a working knowledge of the language that came from his upbringing in a bilingual home, from Spanish training before graduation from the United States Border Patrol Academy, and from service during the past 13 years as a Spanish translator. See Gov't C.A. Br. 26. Thus, regardless of the trial court reporter's alleged difficulty in translating some of Guzman's statements in Spanish (Pet. 28-31), there was ample evidence to support the district court's conclusion that petitioner understood his rights. The court's finding on that issue is confirmed by the fact that petitioner claimed to have no trouble understanding the threats and promises that he claimed were made to induce him to confess, that he subsequently executed a written waiver of his rights in Spanish, and that petitioner then made and signed a statement. See Gov't C.A. Br. 26-27. Nor is there merit to petitioner's claim that his statements were involuntary because the agents coerced him. The agents in question both denied making promises or threats to solicit petitioner's statements, and the district court ruled that the statements had not been coerced. See Gov't C.A. Br. 28-32. There is no basis for this Court to review the district court's credibility determination on that point. 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 SEAN CONNELLY Attorney JANUARY 1991 /1/ Maya, who had taken the truck after petitioner placed the ten coolers on the Riverdale Farms van, was also arrested. The remaining 50 coolers were searched and found not to contain any drugs. Maya was tried together with petitioner and was acquitted. /2/ Petitioner argues (Pet. 20-24) that, since the police had probable cause to search only the containers inside the van, the automobile exception to the warrant requirement did not apply. The issue whether the automobile exception applies in such cases is raised in California v. Acevedo, No. 89-1690 (cert. granted Oct. 1, 1990). If the Court decides in Acevedo that probable cause with respect to packages contained in cars is sufficient to trigger the automobile exception, the search in this case would be lawful on that basis. Regardless of how Acevedo is decided, however, the warrantless search here is independently sustainable as an extended border search. /3/ Petitioner concedes that he retained "no legitimate expectation of privacy" in the one cooler previously determined to contain cocaine. See Illinois v. Andreas, 463 U.S. 765, 772 (1983).