JORGE E. ARANGO, PETITIONER V. UNITED STATES OF AMERICA No. 90-6309 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 Tenth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A1-A14) is reported at 912 F.2d 441. JURISDICTION The judgment of the court of appeals was entered on August 28, 1990. The petition for a writ of certiorari was filed on November 23, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether cocaine that was seized during a search of the truck that petitioner was driving should have been suppressed. STATEMENT After a jury trial in the United States District Court for the District of Utah, petitioner was convicted of possessing cocaine with intent to distribute it, in violation of 21 U.S.C. 841(a)(1). He was sentenced to ten years' imprisonment. The court of appeals affirmed. Pet. App. A1-A14. 1. On November 16, 1988, Utah Highway Patrol Trooper James Hillin observed petitioner's pickup truck traveling at high speed on Interstate 70. After confirming by radar that petitioner was breaking the speed limit, Hillin pulled the truck over. Two people were in the cab of the truck -- petitioner, who was driving, and a woman. In the bed of the truck were two small bags of clothing. Petitioner gave Hillin a California driver's license identifying him as Jorge Enrique Arango, and a California registration identifying the truck's owner as Walter A. or Linda A. McConaughy. Hillin had petitioner leave the truck and sit in the police car. Pet. App. A2. In the police car, petitioner told Hillin that the registered owner was a friend of his who had loaned him the truck to drive to Denver for a two-week vacation. This answer made Hillin suspicious, because two small bags of clothing seemed insufficient for a two-week trip. Hillin asked petitioner for the truck owners' phone number, and petitioner replied that the owners did not have a phone. Hillin radioed the dispatcher, who reported that California directory assistance had no listing for the McConaughys and that the truck was not listed as stolen. Pet. App. A2-A3. Hillin issued petitioner a citation for speeding and then asked whether the truck was carrying any alcohol, weapons, or drugs. Petitioner indicated that it was not, and agreed to let Hillin "look in the vehicle for any of those items." Pet. App. A3. Hillin and Trooper Chester Johnson, who had by then arrived at the scene, began to search the truck. Johnson noticed that the bed of the truck "didn't seem right" because it was very shallow. On further examination, Johnson found additional indications that the truck bed had been modified. The truck bed's section seams were wide and rough, as if hand puttied. Bolts on the sides of the bed did not match the color of the truck, and the bed appeared to have been freshly painted. Finally, after knocking on the top of the truck bed and on the undercarriage of the truck, the troopers discovered a gap of several inches between the truck bed and the undercarriage. Pet. App. A3-A4. Hillin asked petitioner to follow the troopers to the sheriff's office to post bail for the traffic citation. At the sheriff's office, Hillin asked petitioner to sign a form consenting to another search of the pickup truck. Petitioner said, "I already told you, you could search, you could look in the truck; and you have looked." Petitioner then asked what would happen if he signed the consent-to-search form, and he was told that the truck's bed would be searched and that, if nothing was found, he could proceed with his trip. Petitioner was also advised that, if he did not sign the form, a search warrant would be requested. Petitioner then signed the form. Pet. App. A4. After removing the truck bed, troopers found 100 kilograms of cocaine hidden in compartments underneath the bed. Id. at A4-A5. 2. The district court denied petitioner's motion to suppress the cocaine found in the truck. See Pet. App. A5. At the suppression hearing, petitioner claimed that he would not have signed the consent form if he had known that the truck bed would be removed during the search. Petitioner also claimed that he had been paid $2000 to drive the truck to Denver by Jesus Gonzalez, who had told him that the truck had a secret compartment containing money. Petitioner presented no evidence to show that Gonzalez had lawful possession of the truck from the registered owners. Petitioner admitted that he knew before Trooper Hillin stopped him that Gonzalez was not the registered owner. Petitioner denied knowing that the truck contained cocaine. Pet. App. A5, A9. In denying petitioner's motion, the district court expressed doubt that petitioner had standing to challenge the search of the truck, but found that issue unnecessary to resolve in light of its conclusion that petitioner consented to both the roadside search and the search at the sheriff's office. Pet. App. A5. 3. The court of appeals upheld the district court's ruling and affirmed petitioner's conviction. Pet. App. A1-A14. The court determined that petitioner had no reasonable expectation of privacy in the truck and therefore lacked standing to contest the search of it. Pet. App. A6-A10. The court reasoned that to establish a reasonable expectation of privacy in this case petitioner had to "at least state that he gained possession from the owner or someone with authority to grant possession." Id. at A9. Instead, petitioner testified that he got the truck from Jesus Gonzalez, who petitioner knew was not the registered owner. Ibid. Moreover, petitioner introduced no evidence showing that Gonzalez had gained lawful possession of the truck from the registered owners. Ibid. Under these circumstances, the court concluded, petitioner had failed to show that the search violated his Fourth Amendment rights. Id. at A10. /1/ The court rejected petitioner's argument that the cocaine should have been suppressed as the fruit of an illegal detention. Pet. App. A10-A14. The court determined that, because petitioner could not establish he was in lawful possession of the truck, the police were justified in detaining him while they tried to contact the registered owners. Id. at A12. The court also determined that, following these efforts, the police were justified in further detaining petitioner to inquire about the presence of contraband. The court held that petitioner's failure to establish lawful possession of the truck and the apparent inconsistency between the amount of luggage in the truck and petitioner's claim that he was taking a two-week vacation "provided reasonable suspicion that the truck was being used to carry contraband." Ibid. Because the roadside detention was supported by reasonable suspicion, the court concluded, it did not violate the Fourth Amendment. Id. at A13. The court also concluded that the subsequent arrest of petitioner did not violate his Fourth Amendment rights. The court held that, although police made a de facto arrest when they directed petitioner to accompany them to the sheriff's office, this arrest was supported by probable cause. Pet. App. A13. Probable cause was furnished by the inadequate amount of luggage in the truck and evidence that the truck had a hidden compartment. Id. at A13-A14. ARGUMENT 1. Petitioner challenges (Pet. 10-11) the court of appeals' holding that he lacked standing to contest the search of the truck. As an initial matter, the practical importance of that holding is limited, because the court addressed the legality of both the roadside search and the search at the sheriff's office in reviewing the legality of petitioner's detention and subsequent arrest. In any event, the court was correct in concluding that petitioner lacked standing to contest those searches. In order to challenge a search, a defendant must demonstrate a legitimate expectation of privacy in the area or item that was searched. Rawlings v. Kentucky, 448 U.S. 98, 104 (1980); United States v. Salvucci, 448 U.S. 83, 91-93 (1980). Such a showing is necessary because "(a) person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed." Rakas v. Illinois, 439 U.S. 128, 134 (1978). See United States v. Salvucci, 448 U.S. at 91-93; see also Minnesota v. Olson, 110 S. Ct. 1684, 1687 (1990); United States v. Payner, 447 U.S. 727, 735-736 (1980). Petitioner failed to establish a legitimate expectation of privacy in the truck. As the court of appeals recognized, in this case petitioner was required, at a minimum, to "state that he gained possession (of the truck) from the owner or someone with authority to grant possession." Pet. App. at A9. Petitioner, on the contrary, testified that he knew that the person from whom he obtained the truck, Gonzalez, was not the registered owner. Moreover, petitioner presented no evidence -- indeed, did not even allege -- that Gonzalez was in lawful possession of the truck. In similar circumstances, the courts of appeals have concluded that the defendant had no legitimate expectation of privacy in the vehicle searched. See United States v. Obregon, 748 F.2d 1371, 1374-1375 (10th Cir. 1984); United States v. Erickson, 732 F.2d 788, 790 (10th Cir. 1984); United States v. Glasgow, 658 F.2d 1036, 1044 (5th Cir. 1981); United States v. Sanchez, 635 F.2d 47, 63-64 (2d Cir. 1980); United States v. Smith, 621 F.2d 483, 486-488 (2d Cir. 1980), cert. denied, 449 U.S. 1086 (1981); see also United States v. Ospina, 682 F. Supp. 1182, 1184 (D. Utah 1988). The court below properly reached the same conclusion here. /2/ 2. Petitioner renews his contention (Pet. 11-14) that the cocaine found in the truck was the product of a detention and arrest that violated his Fourth Amendment rights. The court of appeals properly rejected this contention. /3/ A law enforcement officer may stop and briefly detain a person for investigative purposes if the officer reasonably suspects that the person is engaged in criminal activity. See e.g., Florida v. Rodriguez, 469 U.S. 1 (1984); Florida v. Royer, 460 U.S. 491, 502 (1983) (plurality opinion); Terry v. Ohio, 392 U.S. 1, 30 (1968). In assessing the existence of reasonable suspicion, the totality of the circumstances must be taken into account. Alabama v. White, 110 S. Ct. 2412, 2416 (1990); United States v. Sokolow, 109 S. Ct. 1581, 1585 (1989); United States v. Cortez, 449 U.S. 411, 417 (1981). Petitioner does not dispute that Trooper Hillin acted properly in stopping the truck for breaking the speed limit. Nor does petitioner dispute that Hillin was justified, upon learning that petitioner was not the truck's registered owner, in detaining petitioner while attempting to contact the owners. Instead, petitioner contends that he should have been allowed to proceed once it was determined that the truck was not stolen. The court correctly rejected that contention. As the court observed, "Hillin's single inquiry relating to the transportation of contraband was justified by (petitioner's) inability to provide credible proof that he lawfully possessed the truck, combined with the inadequate amount of luggage in the truck for a two week vacation." Pet. App. A12. These two factors gave the police reasonable suspicion to believe that the truck was carrying contraband, and therefore justified their request for petitioner's consent to search the truck, which petitioner provided. /4/ When this search led to evidence that the truck had a hidden compartment, the police had probable cause to believe that the truck was being used to carry contraband and therefore to arrest petitioner and conduct a further search of the truck. This evidence gave rise to a "fair probability" that petitioner had committed a crime and that evidence of the crime could be found in the truck. See Illinois v. Gates, 462 U.S. 213, 238 (1983); United States v. Ross, 456 U.S. 798, 804-809 (1982). 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 DEBORAH WATSON Attorney FEBRUARY 1991 /1/ In light of this conclusion, the court did not decide whether petitioner voluntarily consented to the roadside search and the search at the sheriff's office. Pet. App. A14. /2/ Petitioner's testimony regarding the hidden compartment in the truck underscores the correctness of the court of appeals' holding. According to petitioner, he was told that the truck had such a compartment but did not know where it was. Pet. App. A5. Petitioner clearly had no reasonable expectation of privacy in a secret compartment the location of which he did not even know. /3/ The court of appeals need not have reached the issue whether the detention and arrest of petitioner violated the Fourth Amendment. The only "fruit" of the detention and arrest was evidence found during the search of the truck, which petitioner lacked standing to contest. See United States v. Roy, 734 F.2d 108, 112 n.4 (2d Cir. 1984) ("The focus here is not on the legality of the arrest but rather on the propriety of the search (of the automobile) and seizure (of items from the automobile). There is no reason to determine if sufficient grounds existed to seize Roy since that would be an inquiry irrelevant to the consideration of Roy's reasonable expectations of privacy in the automobile."). /4/ Petitioner does not here directly challenge the district court's finding that he voluntarily consented to the roadside search. Instead, petitioner argues only that the police lacked reasonable suspicion to detain him for the purpose of requesting his consent. See Pet. 12-13. As explained in the text, that argument is incorrect. In any event, the district court was clearly correct in finding (see Pet. App. A5) that petitioner voluntarily consented to the search.