UNITED STATES OF AMERICA, PETITIONER V. MICHAEL ROBERT QUINN

   No. 84-1717

   In the Supreme Court of the United States

   October Term, 1985

   On Writ of Certiorari to the United States Court of Appeals for the
Ninth Circuit

   Reply Brief for the United States

   In this case the only question preserved below, decided by the
court of appeals, and presented in our petition for certiorari is
whether respondent had a reasonable and legitimate expectation of
privacy in the Sea Otter that gave him "standing" under the Fourth
Amendment to challenge the search of the vessel.  In his brief in this
Court, however, respondent subordinates that question to the issue he
now seeks to assert of whether he had "standing" based on his
ownership of the Sea Otter to challenge the seizure of the boat.
Respondent's new-found litigating position is not properly before the
Court and in any event is without merit.  With regard to the question
that is presented here, the Ninth Circuit plainly erred in reversing
the district court's ruling that respondent lacked "standing" to
contest the search of the Sea Otter.

   1. The evidence at issue in this case is marijuana debris that was
found when the hold of the Sea Otter was pumped out.  In arguing that
he had an expectation of privacy in the Sea Otter, and therefore was
entitled to challenge that search as the basis for seeking suppression
of the evidence, respondent essentially tracks the opinion of the
court of appeals.  In so doing, respondent fails to come to grips with
the analysis presented in our opening brief, which demonstrated that
an expectation of privacy was not established by respondent's
ownership of the Sea Otter (see U.S. Br. 13-16), /1/ his role as a
co-venturer in the drug smuggling operation (see U.S. Br. 17-19), his
possessory interest in the marijuana that had been transported in the
Sea Otter (see U.S. Br. 19-24), and the existence of water in the
ship's hold that had to be removed in order to recover the marijuana
debris (see U.S. Br. 24 n.16).  We add the following brief comments in
reply to respondent's specific contentions.  /2/

   In seeking to support his expectation of privacy, respondent argues
(Br. 21, 27 n.29) that he was in constructive possession of the Sea
Otter and its cargo of marijuana by virtue of his title to the boat,
his ownership of the drugs, and his involvement as a co-venturer in
the enterprise.  We agree that these facts would render respondent
criminally liable for constructively possessing and importing
marijuana.  But that does not establish the requisite privacy interest
under the Fourth Amendment.  In United States v. Salvucci, 448 U.S. 83
(1980), this Court rejected the proposition, which had underlain the
"automatic standing" rule of Jones v. United States, 362 U.S. 257
(1960), that the government could not "assert that the defendant
possessed the goods for purposes of criminal liability, while
simultaneously asserting that he did not possess them for the purposes
of claiming the protections of the Fourth Amendment" (448 U.S. at 88).
 As the Court explained, "a prosecutor may, with legal consistency and
legitimacy, assert that a defendant charged with possession of a
seized item did not have a privacy interest violated in the course of
the search and seizure" (448 U.S. at 88-89).  The doctrine of
constructive possession well illustrates the Court's conclusion in
Salvucci that a defendant's possessory interest is not equivalent to
an expectation of privacy protected by the Fourth Amendment.  /3/ See
also Rawlings v. Kentucky, 448 U.S. 98, 105-106 (1980).

   Respondent also misconstrues our argument in several respects.
First, our position is not, as respondent characterizes it (Br.
22-23), that a defendant cannot have an expectation of privacy in an
area in which contraband is hidden or that his interest in the
concealed contraband is irrelevant in analyzing the issue of privacy.
On the contrary, our opening brief (at 22-23 & n.15,25-26) explicitly
recognized that the use a person makes of an area to keep his
property, including contraband, may bear on his expectation of privacy
and that a privacy interest in a place is not lost simply because
contraband is stored there.  See Rawlings, 448 U.S. at 105;  Salvucci,
448 U.S. at 91;  Rakas v. Illinois, 439 U.S. 128, 142 n.11, 144 n.12
(1978).  Rather, our point is that under Rawlings, Salvucci, and Rakas
a possessory interest in the items seized, while relevant in
indicating the use to which the searched area was put, does not itself
establish a privacy interest in the area.  Our further point is that,
even if a possessory interest in the item seized were sufficient in
and of itself to entitle a defendant to contest the search of the
place where the item is located, an interest in contraband is wholly
illegitimate and therefore would not support a Fourth Amendment claim
premised on the government's interference with the defendant's right
of possession.  Contrary to respondent's understanding, our argument
does not deny that a reasonable expectation of privacy can exist in an
area that a person uses for an illicit purpose.  /4/

   In addition, respondent characterizes (Br. 26-28) our argument to
be that a defendant automatically abandons his privacy interest if he
turns over his property to another and is not present at the time of
the search.  However, our opening brief specifically stated that
abandonment would not necessarily occur in those circumstances.  See
U.S. Br. 17 n.7.  /5/ But more importantly, we also explained that the
question in this case is not whether respondent abandoned a privacy
interest that he had;  rather, it is whether he had an expectation of
privacy in the first place.  For the reasons stated in our opening
brief, we submit that respondent never had an expectation of privacy
in the Sea Otter.  To reformulate this issue in terms of abandonment,
as respondent seeks to do, can serve only to invite confusion and
obscure sound analysis.

   Respondent further complains (Br. 21-22) that we erred in relying
on the fact that he relinquished custody and control over the Sea
Otter to Hunt for the two-year period following the search in addition
to the two-month period preceding it.  Citing Walter v. United States,
447 U.S. 649, 658 n.11 (1980) (opinion of Stevens, J., announcing the
judgment of the Court), respondent contends that events subsequent to
the search are irrelevant to the issue of his expectation of privacy
at the time of the search.  In the abstract, however, we do not see
why later events cannot illuminate a defendant's prior expectations.
And in any event the result in this case would not be any different if
the Sea Otter had been returned to respondent immediately after the
search.  But most significantly, our argument here, in contrast to
Walter, is not that a defendant waives a privacy interest if he does
not promptly assert his claim by seeking to retrieve property that
might incriminate him.  Instead, respondent contemplated from the
beginning that Hunt would retain the Sea Otter even after the smuggled
marijuana had been delivered to respondent's ranch.  See U.S. Br. 2-3.
 Respondent's contemporaneous understanding that the boat would be out
of his custody and control not only for the extended period of Hunt's
South American voyage, but for an indefinite period thereafter as
well, plainly indicates that respondent had no reasonable expectation
of privacy.  /6/

   Respondent also objects (Br. 21) that our argument does not address
the "conjunction" (Pet. App. 2a) of the considerations invoked to
support his "standing." We acknowledged in our opening brief (at
25-26) that in some circumstances a combination of factors could give
rise to an expectation of privacy even though each of them
individually might not be sufficient.  But in this case, none of the
factors asserted by respondent contributes to his claim of privacy;
whether taken singly or cumulatively, those factors -- his title to
the Sea Otter, his role as a co-venturer, his interest in the smuggled
marijuana, and the presence of water in the hold -- do not create the
requisite privacy interest to entitle respondent to challenge the
search of the vessel.

   In the end, the decision of the Ninth Circuit cannot be reconciled
with fundamental Fourth Amendment principles established by this
Court.  In effect, the court of appeals has established a new rule of
"automatic standing" that would allow a defendant who is the absentee
owner of a conveyance -- and who, as in this case, will often be the
organizer or leader of the illegal enterprise -- to challenge any
search of the conveyance that occurs during a joint criminal venture.
In this way, as Judge Sneed noted in his dissent below (see Pet. App.
4a), the court has invested criminal defendants with a privacy
interest that would not exist for "innocent and law abiding" people in
similar but lawful circumstances.  There is no warrant in the
Constitution for recognizing greater expectations of privacy for
criminal defendants than for the general public.

   2. Relegating the foregoing issue to a secondary position,
respondent now principally defends the judgment below on the ground
that he was entitled as the owner of the Sea Otter to challenge the
seizure of the vessel and consequently could move to suppress the
evidence obtained during the ensuing search as the fruit of that
seizure.  Although respondent does not seek to contest the stop and
boarding of the Sea Otter (see Resp. Br. 10;  see also U.S. Br. 9-10),
he contends that federal officials acted improperly in seizing the
boat and transporting it to the Coast Guard station where the hold was
pumped out.  However, respondent's claim of "standing" to challenge
the seizure is neither appropriately raised here nor analytically
correct.

   a. Respondent chides us for "confus(ing) the concept of 'seizure'
with that of 'search'" (Resp. Br. 10;  but see U.S. Br. 20), for
"seek(ing) to recharacterize the legal issue in this case * * * (and)
completely ignor(ing) the primacy of the seizure" (Resp. Br. 10 n.9),
and for "blithely ignor(ing) the seizure to focus exclusively on the
ultimate search and (respondent's) privacy interests" (id. at 12).  In
actuality, however, it is respondent who offers a revisionist history
of this litigation and attempts to recast the controversy in order to
raise a new legal issue for the first time in this Court.

   In the district court, respondent moved for the "suppression of
evidence seized as a result of the search of the (Sea Otter)" (J.A.
25) "because there was not probable cause to justify this warrantless
search of the vessel" (J.A. 26).  /7/ The government's memorandum in
opposition argued that respondent had "no standing to contest the
search of the SEA OTTER" (J.A. 31) because "the search of the SEA
OTTER and the seizure of the marijuana * * * (did not invade his)
legitimate expectation of privacy" (J.A. 32);  in particular, the
government noted that respondent could "assert only ownership as a
basis for a legitimate expectation of privacy in the SEA OTTER"
(ibid.) and that ownership was not sufficient to establish a privacy
interest in the circumstances of this case (J.A. 32-33).  The district
court ruled that respondent "has no standing to present the motion to
suppress and that motion will be denied" (Pet. App. 9a).

   Following the district court's denial of the suppression motion,
respondent entered a conditional plea of guilty, pursuant to an
agreement with the government, "in order to preserve his right to
appeal the District Court's decision that he had no standing to
contest the search of the 'SEA OTTER'" (J.A. 21).  The agreement
expressly stated that respondent's "appeal will be limited to that one
issue" (ibid.).

   The caption in his opening brief in the court of appeals (at 6)
describes respondent's argument to be that he "had standing to contest
the legality of the search of the Sea Otter because he was the owner
of the Sea Otter, and the owner of the items seized";  respondent
asserted that these ownership interests sufficed to confer "standing"
and that the search of the boat "infringed upon an area in which
(respondent) had an expectation of privacy" (id. at 9).  /8/ In turn,
the government's brief (at 8) argued that "an ownership interest does
not create an expectation of privacy where the defendant relinquished
possession of the item searched" and that respondent did not have "a
legitimate expectation of privacy in the invaded place" (id. at 9);
accordingly, it concluded that because respondent had "relinquished
any expectation of privacy, he should not be allowed to contest the
search" (id. at 12).  In his reply brief (at 2), respondent, seeking
to answer the government's argument that he "lacks standing to contest
the legality of the search," contended that he "has a Fourth Amendment
right to a reasonable expectation of privacy in the contents of the
boat";  based on that contention, respondent asked the court of
appeals to "remand the case to the district court for resolution (on
the merits) of the issue of the legality of the search of the Sea
Otter" (ibid.).  /9/

   After submission of the briefs, the court of appeals entered an
order directing counsel to respond to the following questions at oral
argument:

         1. Does (respondent) have standing to contest the search of
      the Sea Otter based upon an arrangement between (respondent) and
      Hunt that indicates joint control and supervision of the Sea
      Otter?  * * *

         2. Does (respondent) have standing to contest the search of
      the Sea Otter based upon a formalized agreement with Hunt for
      the transportation of marijuana?  * * *

   Order of July 20, 1984.  Following oral argument, the court of
appeals rendered its decision reversing the district court's ruling
that respondent "lacks standing to contest the search of his fishing
vessel" and holding that respondent "had a legitimate expectation of
privacy in the place searched (his boat), giving him a basis to charge
that the search invaded his Fourth Amendment rights" (Pet. App. 2a).

   Finally, in seeking review in this Court of the court of appeals'
decision, the single question presented in our petition for certiorari
was whether respondent "has a Fourth Amendment expectation of privacy
that entitles him to challenge the search of" the Sea Otter in the
circumstances of this case.

   Against this background, it is clear that the sole issue presented
throughout this litigation has been whether respondent had an
expectation of privacy in the Sea Otter that would give him "standing"
to challenge the search of the boat.  That was the only question
raised in the district court (see Fed. R. Crim. P. 12(b)(3) and (f)),
preserved in the conditional plea agreement (see Fed. R. Crim. P.
11(a)(2)), submitted to and decided by the court of appeals, and
encompassed in the petition for certiorari in this Court.  Having
failed to raise and preserve the point below, respondent cannot now
interject the issue of his "standing" to challenge the seizure of the
Sea Otter as a purported alternative ground for affirming the court of
appeals' judgment that he had "standing" to challenge the search.

   b. At all events, in the circumstances of this case, respondent's
ownership of the Sea Otter did not give him "standing" to contest the
validity of transporting the vessel to a Coast Guard station in order
to pump out its hold.  As discussed in our opening brief (at 20), a
seizure entails a governmental interference with a person's possessory
interest in the object that was seized;  in contrast, a search
involves an intrusion upon a person's reasonable and legitimate
expectation of privacy in the area or item that was searched.  See
also United States v. Chadwick, 433 U.S. 1, 33 n.8 (1977) (seizure of
a footlocker was "a substantial infringement of (defendants') use and
possession" but "did not diminish (their) legitimate expectation that
the footlocker's contents would remain private");  Texas v. Brown, 460
U.S. 730, 747-748 (1983) (Stevens, J., concurring in the judgment) (a
seizure implicates "the interest in retaining possession of property"
while a search involves "the interest in maintaining personal
privacy");  United States v. Place, 462 U.S. 696, 716 (1983) (Brennan,
J., concurring in the result).

   We assume here that property unlawfully seized, as well as the
fruits of the unlawful seizure, would be subject to suppression under
the exclusionary rule.  See Place, 462 U.S. at 700-701, 707-710;
Coolidge v. New Hampshire, 403 U.S. 443, 473, 478 (1971);  Davis v.
Mississippi, 394 U.S. 721, 724 (1969);  but cf. Salvucci, 448 U.S. at
91 n.6;  United States v. Lisk, 522 F.2d 228, 230 & n.4 (7th Cir.
1975) (Stevens, J.), cert. denied, 423 U.S. 1078 (1976), subsequent
opinion, 559 F.2d 1108 (7th Cir. 1977).  It may also be assumed that a
person whose property is temporarily out of his possession can retain
a sufficient interest in that item to contest its seizure.  See U.S.
Br. 20 n.11;  see also United States v. Jacobsen, 466 U.S. 109,
120-121 & n.18 (1984);  Place, 462 U.S. at 705-706 & n.6;  United
States v. Van Leeuwen, 397 U.S. 249 (1970).  /10/

   However, "(t)he intrusion on possessory interests occasioned by a
seizure of one's personal effects can vary both in its nature and
extent." Place, 462 U.S. at 705.  In this case, no interest of
respondent's was infringed by the government's brief detention of the
Sea Otter to take it to port.

   As previously discussed, at the time the Sea Otter was apprehended
respondent had relinquished custody and control of the boat to Hunt
both for the preceding two-month period and for what promised to be
and in fact was an extended duration thereafter.  During that time,
respondent's ownership of the Sea Otter gave him no cognizable
interest in the freedom of movement of the vessel;  the brief period
of its detention did not interfere with respondent's residual right to
the return of the Sea Otter at some indefinite point in the future or
even with his commitment of the boat to be used in the joint criminal
venture.  If the Sea Otter had been delayed by bad weather (as in fact
occurred), by mechanical problems, or by a frolic and detour on Hunt's
part, respondent's interests would not have been harmed in any way.
Cf. Van Leeuwen, 397 U.S. at 253.  The same conclusion is equally
applicable to the brief delay occasioned by taking the Sea Otter to
the Coast Guard station, and therefore respondent had no interest that
was implicated by that seizure.

   Significantly, respondent appears to concede (Br. 10) that he does
not have "standing" to challenge the seizures of the Sea Otter
involved in the stop and boarding of the boat by California Fish and
Game officials or by federal Coast Guard and Customs authorities.
That concession is plainly correct, since the brief, temporary
interference with the movement of the ship and its crew, had it not
led to discovery of criminal activity, could not have affected
respondent.  See U.S. Br. 9-10.  Precisely the same analysis applies
to the subsequent detention of the boat when it was taken to port;
that detention, while presumably lasting for a somewhat longer period,
no more interfered with any interest of respondent's than did the
initial stop and boarding.

   Notwithstanding respondent's contention (Br. 17-20), our argument
does not rest on the notion that he had abandoned his interest in the
Sea Otter.  On the contrary, we do not dispute that respondent
remained the owner of the vessel and retained all incidents of legal
title.  But his rights as the owner were simply not infringed by the
government's brief detention of the Sea Otter.  That seizure
constituted a restraint on the immediate use of the boat;  because
respondent had turned over the Sea Otter to Hunt, he had "(n)o
interest protected by the Fourth Amendment (that) was invaded by (the
seizure)." Van Leeuwen, 397 U.S. at 253.  As in Van Leeuwen,
respondent is "'unable to show that the (seizure) intruded upon * * *
a possessory interest in the (seized object itself).'" Place, 462 U.S.
at 705-706 n.6, quoting 3 W. LaFave, Search and Seizure Section 9.6,
at 71 (Supp. 1982).  See also Place, 462 U.S. at 717 n.5 (Brennan, J.,
concurring in the result).  /11/

   For the foregoing reasons and those stated in our opening brief, it
is therefore respectfully submitted that the judgment of the court of
appeals should be reversed.

   CHARLES FRIED

      Solicitor General

   FEBRUARY 1986

   /1/ See also United States v. Metzger, 778 F.2d 1195, 1200 (6th
Cir. 1985) ("(i)t is well-settled * * * that ownership interest is
only one fact to be considered and standing alone will not give
defendant a reasonable expectation of privacy").

   /2/ We also note that in several instances (see Resp. Br. 5 n.5, 6
nn.6, 7, 25 n.28) respondent now either disputes the government's
factual submission in the district court or relies on assertions that
are outside the record.  (In his brief in the court of appeals (at 6,
7), on the other hand, respondent acknowledged that the relevant facts
"are largely uncontested" and "essentially undisputed";  at no point
in the district court or the court of appeals did respondent take
issue with the government's statement of facts.) While these
differences are not material to the legal issue presented in this
Court, they do illustrate the problems that can arise when a defendant
does not satisfy the burden placed on him of alleging and (if
necessary) proving the facts required to establish his "standing." See
U.S. Br. 12.

   /3/ The government's briefs in Salvucci (see U.S. Br. at 23-28;
U.S. Reply Br. at 21-25) relied on the doctrine of constructive
possession as the primary example of the difference between a
possessory interest proscribed under substantive criminal law
principles and a privacy interest protected under the Fourth
Amendment.

   /4/ For this reason, respondent's reliance (Br. 23-25, 28) on
United States v. Jeffers, 342 U.S. 48 (1951), does not support his
contention.  As discussed in our opening brief (at 23 n.15, 25-26),
this Court has explained that "standing" in Jeffers rested on the
defendant's expectation of privacy in light of his access to and use
of the hotel room that was searched.  Jeffers holds that a privacy
interest can exist even though the defendant has no common-law
property right in the searched premises and uses it, among other
purposes, to store drugs;  it does not suggest that bare ownership of
the searched area and its use by others to secrete contraband would
create an expectation of privacy.

   /5/ In this case, though, we do believe that respondent, by giving
up custody and control of the Sea Otter to Hunt for such an extended
period, would have lost any reasonable expectation of privacy he might
previously have had.  See U.S. Br. 16 n.6, 17 n.7.

   /6/ By contrast, the fact that respondent was living on the Sea
Otter in August 1983 (Resp. Br. 3, 6, 22) -- more than four years
after the search in question and almost two years after the boat was
turned over to him by Hunt -- is clearly irrelevant to the issue of
his privacy interest at the time of the search.

   /7/ Respondent's motion also referred to the initial stop of the
Sea Otter, an issue that, as noted above, he no longer asserts.

   /8/ In several places in his brief, respondent referred without
differentiation to the "seizure and search" of the Sea Otter.  At no
point, however, did respondent focus on the seizure separately from
the search or discuss the seizure in terms of the detention of the
vessel to transport it to the Coast Guard station.

   /9/ In his reply brief, respondent again referred without
distinction to the "seizure and search" of the Sea Otter.  In
addition, and for the first time in this proceeding, respondent
adverted (at 3) to the question "whether the observations of the
Customs Patrol officers amounted to probable cause for the forcible
seizure and pumping of the holds of the vessel." This passing
reference in the reply brief to the "forcible seizure" as well as the
search of the Sea Otter is simply too little and too late to preserve
the issue petitioner now seeks to advance.  Indeed, respondent himself
expressly acknowledged (ibid.) that in the plea agreement it had been
"specifically agreed that the appeal in this case would be solely on
the issue of whether (respondent) had standing to contest the search
of the Sea Otter."

   /10/ Accordingly, while not endorsing each of the historical
authorities or decisions cited by respondent (see Resp. Br. 12-20), we
do not disagree with the principle that one has "standing" to
challenge a seizure if it actually infringed his possessory interest.
For example, as respondent is at pains to demonstrate, the owner of a
ship that has been wrongfully seized and forfeited can bring a civil
action for compensation.

   /11/ We also note that the facts recited in the government's
submission in the district court (see J.A. 29-31, 39-43), including
the observation of marijuana debris in plain view by the California
Fish and Game officials, clearly established probable cause to seize
the Sea Otter and transport it to the Coast Guard station (assuming
arguendo that probable cause is the standard for such a seizure).