HENRY A. GRAY, PETITIONER V. UNITED STATES OF AMERICA No. 90-5294 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 Oposition OPINIONS BELOW The judgment order of the court of appeals (Pet. App. 1) is unpublished, but the judgment is noted at 903 F.2d 829 (Table). The order of the district court denying petitioner's motion to suppress evidence (Pet. App. 17-18) and the magistrate's report and recommendation (Pet. App. 3-16) are unreported. JURISDICTION The judgment of the court of appeals was entered on April 30, 1990. The petition for a writ of certiorari was filed on July 30, 1990 (a Monday). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioner's arrest was supported by probable cause. STATEMENT Following a jury trial in the United States District Court for the Northern District of Georgia, petitioner was convicted of possession of more than 50 grams of cocaine base, in violatin of 21 U.S.C. 841(a)(1), and conspiracy, in violation of 21 U.S.C. 846. He was sentenced to 160 months' imprisonment, to be followed by a five-year term of supervised release. The court of appeals affirmed by order. Pet. App. 1. 1. The evidence at the suppression hearing showed that at 7:45 a.m. on November 8, 1988, petitioner arrived in Atlanta by air from Miami, a major source city for illegal drugs. Petitioner appeared to be wearing several layers of clothing, and he carried a tote bag. As he walked up the concourse, he kept looking behind him. Shortly after petitioner left the arrival gate, his co-defendant Keith Francis got off the airplane. Francis walked up to petitioner and the two men conversed. Both petitioner and Francis appeared to be very nervous, and both looked back toward the arrival gate where an undercover officer was watching passengers disembark from the Miami flight. Petitioner and Francis began walking up the concourse together until petitioner said something to Francis. Francis then dropped back; the two men seemed to be trying to appear as if they were not together. Gov't C.A. Br. 3-4. Plainclothes officers approached the two men and asked to speak with them. The men consented and allowed the officers to examine their airplane tickets, which were one-way tickets paid for with cash. After the officers returned the tickets, they asked to examine the men's driver's licenses. Petitioner's license bore the same name as his ticket; Francis claimed that he had no driver's license or other identification. The officers next asked the two men whether they were traveling together. Petitioner replied that he was traveling alone, but Francis responded that he was traveling with petitioner. When Francis made that statement, petitioner gave him a disapproving stare. Gov't C.A. Br. 5-6. The officers then sought permission to search the tote bags petitioner and Francis were carrying. Petitioner threw his bag down and consented, explaining, "I ain't got shit on me, I ain't got no dope." The officer found nothing in petitioner's bag and permitted him to leave. While petitioner was walking down the concourse, a second officer found 368 grams of crack cocaine concealed in a shoe in Francis's tote bag. When the officers discovered the cocaine, one of them ran after petitioner and arrested him. During a post-arrest search of petitioner's tote bag, the officers found a baggie containing cocaine residue. Gov't C.A. Br. 6-9. 2. Following a hearing on petitioner's motion to suppress the baggie, the magistrate found that petitioner had consented to speak to the officers and that he had consented to the search of his bag. The magistrate determined that the officers had probable cause to arrest petitioner once they found cocaine in Francis's bag. The magistrate also concluded that it was lawful for the officers to inventory the contents of petitioner's tote bag upon his arrest. The magistrate therefore recommended that petitioner's motion to suppress the baggie seized from his tote bag be denied. Pet. App. 3-16. The district court accepted the magistrate's recommendation. The court found probable cause to arrest petitioner based on the following facts: (1) petitioner and Francis had just arrived from Miami, a major source of illegal drugs; (2) both men "looked around vigilantly and seemed to be avoiding being seen together"; (3) petitioner and Francis had one-way cash tickets and carry-on luggage only; (4) petitioner told the officers that he was traveling alone while Francis told the officer that he was traveling with petitioner; (5) Francis denied having any identification; and (6) cocaine was found in Francis's luggage. Based on those facts, the court held that petitioner's arrest and the search of his tote bag were lawful. Pet. App. 17-18. ARGUMENT Petitioner argues that the discovery of cocaine in Francis's bag did not provide probable cause for his arrest. Probable cause, however, must be determined on the basis of all the circumstances, see Illinois v. Gates, 462 U.S. 213, 230-231 (1983). In light of all the facts in this case, the officers had probable cause to believe that petitioner was acting in concert with Francis in smuggling narcotics. First, petitioner had just arrived from Miami, a source city for narcotics, and he had paid for his one-way ticket with cash. Petitioner was nervous and was looking around the terminal to see if he was being watched. He attempted to disassociate himself from Francis as the two men walked down the concourse. When the officers stopped the two men, petitioner falsely claimed that he was traveling alone, and he stared disapprovingly at Francis when Francis admitted that the two of them were traveling together. These facts gave rise to a strong suspicion that the two men were jointly engaged in narcotics trafficking. See United States v. Sokolow, 109 S. Ct. 1581, 1586-1587 (1989). When the officers discovered a substantial quantity of crack cocaine in Francis's tote bag, they had probable cause to believe that petitioner was jointly transporting the drug with Francis. This case is easily distinguished from United States v. Di Re, 332 U.S. 581 (1948), and Sibron v. New York, 392 U.S. 40 (1968), on which petitioner relies. In Di Re, the arresting officers had no information about the defendant other than that he was riding in a car with a man who possessed counterfeit gasoline ration coupons. The informant in that case had identified the individual who was selling the coupons, but had never mentioned Di Re. The Court held that Di Re's mere presence in the car, without any additional facts, did not establish probable cause for his arrest. 332 U.S. at 592-593. Likewise, in Sibron, police officers arrested the defendant although they had no information about him other than that they had seen him speaking with some drug addicts. The police did not overhear any conversation or see any transaction between Sibron and the addicts. The Court held that Sibron's mere association with drug addicts was not sufficient to establish probable cause for his arrest. 392 U.S. 62-63. Unlike in Di Re and Sibron, probable cause in this case did not rest on petitioner's mere presence in Francis's company. Petitioner personally engaged in behavior typical of drug traffickers -- he paid for his ticket in cash, he nervously scanned the terminal, and he tried to conceal his association with Francis. Those facts gave the officers a firm basis for concluding that petitioner was acting in complicity with Francis in the smuggling effort. Further review of the probable cause determination is therefore unwarranted. 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 PATTY MERKAMP STEMLER Attorney OCTOBER 1990