ROBBY LEE ANDREWS, PETITIONER V. UNITED STATES OF AMERICA No. 90-6446 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 OPINIONS BELOW The opinions of the court of appeals (Pet. App. 1-3), the district court (App., infra), and the magistrate (App., infra) are not reported. JURISDICTION The judgment of the court of appeals was entered on September 7, 1990. The petition for a writ of certiorari was filed on December 6, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether petitioner was "seized" when a local sheriff approached the parked car in which he and another occupant were sleeping in order to determine whether they needed assistance. 2. Whether the sheriff had probable cause to believe that there were drugs in the car after he smelled a strong odor of marijuana inside the car and saw petitioner engage in furtive movements. STATEMENT After a jury trial in the United States District Court for the District of Minnesota, petitioner was convicted of bank robbery, in violation of 18 U.S.C. 2113, and using a firearm during a crime of violence, in violation of 18 U.S.C. 924(c). Petitioner received a total sentence of 60 months' imprisonment, five years' supervised release, and a $100 special assessment. 1. Just before 1 p.m. on July 11, 1989, petitioner and Mark O'Berg robbed the First National Bank of Milroy in Minnesota. /1/ At gunpoint, O'Berg forced the bank teller to place cash in a bag; petitioner then bound and gagged the teller before he and O'Berg fled out the door with the money. The robbers then purchased drugs and a new car, and drove to Iowa. Gov't C.A. Br. 2. At about 8 a.m. on the following day, Deputy Sheriff Ronald Allen of the Pottawatamie County (Iowa) Sheriff's Department noticed a car with Minnesota license plates stopped on a residential street in Avoka, Iowa. The driver appeared to be asleep, and Allen was concerned that the car might be disabled. After parking his patrol car in front of the car, Deputy Allen approached the stopped car and awakened the driver, who was subsequently identified as O'Berg. When O'Berg rolled down the window, Deputy Allen noticed a strong smell of marijuana from inside the car. He also saw petitioner asleep in the back seat of the car. App. A, infra, 2-3; App. B, infra, 1-2. After smelling the marijuana, Deputy Allen asked O'Berg and petitioner to get out of the car and to produce some identification. Deputy Allen then directed O'Berg and petitioner to remain standing outside the car while he returned to his patrol car to check their identifications for outstanding warrants. While speaking on the radio at his patrol car, Deputy Allen saw petitioner step behind the front seat of the car and briefly disappear from sight before reemerging. Deputy Allen immediately returned to petitioner's car and noticed that a road map had just been placed on the floorboard in the front of the car. Deputy Allen entered the car, lifted up the map, and found underneath two bags of marijuana and a bottle of pills. The deputy then placed petitioner and O'Berg under arrest for possession of drugs. App. B, infra, 2. Next, Deputy Allen searched the car's passenger compartment. Inside the glove compartment he discovered a paper bag containing a large amount of cash and additional drugs. A subsequent warrant-authorized search of the trunk revealed a sawed-off shotgun. The Iowa authorities subsequently sent out a teletype regarding the arrests, and Minnesota authorities responded that O'Berg was a suspect in connection with a bank robbery the previous day. When it was determined that serial numbers on several bills found in the car matched the serial numbers on bills stolen from the Minnesota bank, the Federal Bureau of Investigation was contacted. Petitioner and O'Berg were ultimately indicted in the District of Minnesota for the bank robbery. App. B, infra, 2-3. 2. Petitioner moved to suppress the stolen money and firearm, claiming that the actions of Deputy Allen violated the Fourth Amendment. The motion was referred to a magistrate, who issued a report recommending that this motion be denied. App. B, infra. Finding that Deputy Allen initially had approached the car out of concern that it might be disabled, id. at 1, the magistrate concluded that the deputy's actions were a reasonable exercise of his "community caretaking functions." Id. at 5 (quoting Cady v. Dombrowski, 413 U.S. 433, 441 (1973)). The magistrate further determined that after Deputy Allen had smelled marijuana inside the car, he had at least reasonable suspicion justifying his demands that petitioner and O'Berg provide identification and step out of the car while he checked for outstanding warrants. Id. at 5-6. Finally, the magistrate concluded that petitioner's subsequent furtive movement, in re-entering the car (notwithstanding Deputy Allen's direction to remain standing outside) to place a map over the front floor, created probable cause to search underneath the map and in the glove compartment. Id. at 6-8. After conducting a de novo review of the magistrate's report and recommendation, the district court agreed that the motion to suppress should be denied. App. A, infra, 1-4. The court agreed with the magistrate that Deputy Allen's initial approach of the car and questioning of O'Berg was a proper exercise of his department's community caretaking function. Id. at 2. Stating that the objections to the magistrate's report "hinge on the question of if and when Deputy Allen caught the aroma of marijuana emanating from (the) car," id. at 1, the court credited Deputy Allen's sworn testimony that he "smelled marijuana on his initial questioning of O'Berg." Id. at 3. The court held that this finding answered "defendants' main objections" to the magistrate's report and accordingly adopted in full the magistrate's "analysis of the legality of the seizures after that point." Ibid. 3. The court of appeals affirmed. Pet. App. 1-3. It found that the legal analysis applied by the magistrate and district court was "correct in law and not otherwise clearly erroneous." Id. at 2. ARGUMENT 1. Petitioner claims that when Deputy Allen initially approach the parked car in which he and O'Berg were sleeping, the deputy committed an unlawful "seizure." That claim lacks merit; approaching occupants of a car that already is stopped does not constitute a Fourth Amendment "seizure." This Court consistently has recognized that "law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, (and) by asking him if he is willing to answer some questions * * *." Florida v. Royer, 460 U.S. 491, 497 (1983) (plurality opinion). See also, e.g., INS v. Delgado, 466 U.S. 210 (1984) (no seizure occurred when several INS agents stood near factory exits while other agents systematically questioned workers regarding their citizenship). Cf. Michigan v. Chesternut, 486 U.S. 567, 574-575 (1988) (no seizure occurred when police in patrol car followed pedestrian in a manner that "could be somewhat intimidating" but never activated siren, commanded him to halt, displayed weapons or "operated the car in an aggressive manner to block (pedestrian's) course or otherwise control the direction or speed of his movement"). A Fourth Amendment seizure occurs "only when there is a governmental termination of freedom of movement through means intentionally applied." Brower v. County of Inyo, 489 U.S. 593, 597 (1989) (emphasis omitted). Petitioner's freedom of movement was in no sense terminated when Deputy Allen approached the stopped car to question its sleeping occupants. See generally 3 W. LaFave, Search and Seizure Section 9.2(h) (1987) ("if an officer merely walks up to a person * * * who is seated in a vehicle located in a public place () and puts a question to him, this alone does not constitute a seizure"). Petitioner relies, Pet. 11-12, on United States v. Beck, 602 F.2d 726 (5th Cir. 1979), but Beck is easily distinguishable since it involved a police stop of a car that had "its engine running." Id. at 727. The court held that "(b)y pulling so close to the (running car), the officers effectively restrained the movement of Beck and his passenger, * * * (who) were not free to ignore the officers and proceed on their way." Id. at 729 (internal quotations and brackets omitted). Here, in contrast, there can be no claim that the freedom of movement of O'Berg and petitioner (who were sleeping in a stopped car) was impaired. The courts below correctly held that Deputy Allen's initial approach of the stopped car was a proper exercise of what this Court has described as a police officer's "community caretaking functions," which are "totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." Cady v. Dombrowski, 413 U.S. 433, 441 (1973). The magistrate and the district court both found that Deputy Allen approached the stopped car out of a concern that it might be disabled and its occupants might need assistance. The officer's concerns in this regard were not unreasonable, given the undisputed facts that a car with out-of-state plates was parked at 8 a.m. in a residential area and was occupied by two sleeping individuals. Under these circumstances, Deputy Allen did not act improperly by approaching the car to determine whether the occupants needed assistance. 2. Equally without merit is petitioner's challenge, Pet. 13-16, to the search of the car after Deputy Allen smelled marijuana inside and saw petitioner reach furtively back into the car to place a map on the front floor. Petitioner continues to claim that Deputy Allen's testimony that he smelled marijuana inside the car is "a questionable assertion." Pet. 13. Both the magistrate and the district court credited the officer's sworn testimony on this point, however, and the court of appeals correctly determined there is no basis for holding these credibility determinations to be clearly erroneous. Petitioner errs as a matter of law in arguing that "odors alone do not create probable cause nor authorize a search without a warrant." Pet. 13, 14. This Court's decisions are to the contrary. See United States v. Johns, 469 U.S. 478, 482 (1985) (after customs agents who suspected drug smuggling "came closer and detected the distinct odor of marijuana, they had probable cause to believe that the vehicles contained contraband"); Johnson v. United States, 333 U.S. 10, 13 (1948) ("If the presence of odors is testified to before a magistrate and he finds the affiant qualified to know the odor, and it is one sufficiently distinctive to identify a forbidden substance, this Court has never held such a basis insufficient to justify issuance of a search warrant."). /2/ The federal courts of appeals have also consistently held that the distinctive odor of marijuana may create probable cause sufficient to justify the warrantless search of an automobile. See, e.g., United States v. Gordon, 722 F.2d 112, 114 (5th Cir. 1983); United States v. Lueck, 678 F.2d 895, 903 (11th Cir. 1982); United States v. Haley, 669 F.2d 201, 203 (4th Cir.), cert. denied, 457 U.S. 1117 (1982). Here, Deputy Allen had probable cause as soon as he smelled the odor of marijuana inside the car, but petitioner's actions provided additional incriminating evidence that he and O'Berg were engaged in illegal drug-related activity. Since Deputy Allen had probable cause to search the car, petitioner's argument that there was no reasonable basis for suspecting that he and O'Berg were armed and dangerous, Pet. 14-16, is irrelevant. 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/ O'Berg was charged in the indictment with petitioner, but he entered a conditional guilty plea following denial of the motion to suppress. The court of appeals affirmed the denial of this motion as to both O'Berg and petitioner. Pet. App. 1-3. /2/ Petitioner erroneously reads Johnson as suggesting that odor alone can support the issuance of a search warrant but cannot justify a warrantless search. Johnson simply held that odor alone, absent some additional exigency, does not excuse the need for a search warrant where one is otherwise required. 333 U.S. at 15 (emphasizing that "(t)he search was of permanent premises, not of a movable vehicle"). A search warrant is not required to search an automobile if the police have probable cause to believe that it holds contraband. United States v. Ross, 456 U.S. 798 (1982).