JOSE ANGEL REYES-RESENDEZ, PETITIONER V. UNITED STATES OF AMERICA No. 90-6473 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 OPINION BELOW The opinion of the court of appeals (Pet. App. 1a-23a) is reported at 908 F.2d 281. JURISDICTION The judgment of the court of appeals was entered on July 9, 1990. A petition for rehearing was denied on September 11, 1990. The petition for a writ of certiorari was filed on December 10, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED 1. Whether petitioner lacked standing to challenge the search of a storage locker at a bus station because his rental term of the locker had expired several days before the search. 2. Whether petitioner's false statement to a pretrial services officer, in response to the officer's request for his name, falls within the "routine booking question" exception to Miranda v. Arizona, 384 U.S. 436 (1966). STATEMENT Following a jury trial in the United States District Court for the Eastern District of Missouri, petitioner was convicted on six counts of making false statements to federal agencies, in violation of 18 U.S.C. 1001; three counts of falsely representing his social security number, in violation of 42 U.S.C. 408(g)(2); three counts of falsely representing that he was a citizen of the United States, in violation of 18 U.S.C. 911; one count of making false statements in an application for a passport, in violation of 18 U.S.C. 1542; one count of possession with intent to use unlawfully five or more false identification documents, in violation of 18 U.S.C. 1028(a)(3); one count of possession of a firearm while being an alien unlawfully in the United States and after having been previously convicted of a felony, in violation of 18 U.S.C. 922(g)(1); and one count of reentry into the United States without permission after having been deported, in violation of 8 U.S.C. 1326. He was sentenced to 30 months' imprisonment. 1. Petitioner, a Nicaraguan citizen, was deported in October 1987 for illegally entering the United States. Shortly thereafter, petitioner reentered the country. In an attempt to obtain a social security card, petitioner made several false representations to Social Security Administration officials in St. Louis. In April 1988, petitioner submitted an application form for a replacement social security card using the name Daniel Edward Arnold. He also falsely stated his date and place of birth, his mother's name, and his father's name on the application. In addition, petitioner falsely represented that his social security number was 500-78-4523 and that he was a United States citizen. Pet. App. 3a. In May 1988, petitioner submitted a second application for a replacement card at the Social Security Administration office in St. Louis. The information on that application was identical to the earlier application with two exceptions. On the second application, petitioner listed a different false name for his father, and he falsely stated that his social security number was 433-86-7453. Pet. App. 3a-4a. Petitioner went to the St. Louis Post Office in June 1988 and submitted a passport application on which he again used the name Daniel Edward Arnold. The information on the passport application was the same as that provided on his first application for a replacement social security card with three exceptions. On the passport application, petitioner provided slightly different false names for his mother and father. He also used the social security account number that he had listed on the second (rather than the first) application for a replacement card. In addition, petitioner falsely stated his home and business telephone numbers. Pet. App. 4a. Petitioner was arrested by INS Agent Todd Ostrom on November 30, 1988. Before he was arrested, petitioner told the agent that his name was Angel Reyes. After the agent identified himself, however, petitioner stated that his name was Daniel Arnold. After arresting petitioner, Agent Ostrom searched him and found several false identification documents in petitioner's possession, including a Michigan identification card bearing the name and address of Daniel Edward Arnold; an Ann Arbor, Michigan, public library card in the name of Daniel E. Arnold; a Texas identification card in the name of Daniel Edward Arnold; a book of checks in the name of Daniel Edward Arnold; and a blood donor card signed by Daniel Eduardo A., III. Petitioner was also carrying a key to a bus station storage locker. Pet. App. 4a; Pet. C.A. Br. 4. The following day, a pretrial services officer, Kevin Carbol, interviewed petitioner for the purpose of gathering information for a pretrial services report to be used by the district court in determining whether petitioner was eligible for pretrial release. Carbol provided petitioner with a written advice of rights form and summarized it for him. Carbol then asked petitioner his name. Petitioner replied that his name was Jose Konig Mangele. When Carbol began reading the form, petitioner stated that he had thought that Carbol was his attorney and that he had probably said too much. Petitioner declined to answer any questions or sign the advice of rights form. Pet. App. 4a; Gov't C.A. Br. 7; GX 16. That same day, petitioner made his initial appearance before the magistrate. At that hearing, petitioner falsely represented to the magistrate that his name was Jose Konig Mangele, that he was born in Managua, Nicaragua, and that he had never been convicted of any crimes. Pet. App. 5a. A week later, on December 8, INS Agent Ostrom interviewed petitioner, who was represented by an immigration attorney, at the Franklin County Jail. During the questioning, petitioner falsely represented that his name was Jose Konig Mangele, that he had entered the United States in March 1988 during Mardi Gras in New Orleans, Louisiana, and that Daniel Arnold had given him a social security card. Pet. App. 5a; Pet. C.A. Br. 5. On December 12, Agent Ostrom went to the Greyhound bus terminal with the storage locker key that petitioner had been carrying when he was arrested. Petitioner had rented the storage locker on November 30 for a 24-hour period. Because additional rent on the storage locker was overdue, its lock had been plugged. The manager of the bus terminal opened the locker with a master key and removed a black nylon gym bag. After examining its contents, the manager of the bus terminal turned the bag over to Agent Ostrom. Among the items found in the gym bag were a pawn shop receipt for a pistol; five Kansas birth certificates in the name of Daniel Edward Arnold; letters addressed to Daniel Arnold; and several identification cards with different names. A semi-automatic .380 caliber pistol and a large knife were also found inside the gym bag. Pet. App. 5a-6a; Gov't C.A. Br. 2. 2. Prior to trial, petitioner moved to suppress the false identification documents and the pistol found in the bus terminal storage locker. He also moved to suppress the statement that his name was Jose Konig Mangele that he made to the pretrial services officer. The district court denied both motions. 3. The court of appeals affirmed. Pet. App. 1a-23a. It held that petitioner lacked standing to challenge the search of the bus terminal storage locker because "(he) could not have had a legitimate expectation of privacy at the time of the search." Id. at 7a. The court explained that petitioner "rented the locker on November 30, 1988 for a period of only twenty-four hours" and "(c)learly printed on the front of his locker was a warning that if he did not renew his rental period or remove his items, they would be removed and possibly sold." Ibid. Since "(petitioner) did not pay for additional time or remove his items after the expiration of the twenty-four hours," the court pointed out that "his rental term expired on December 1, several days before agent Ostrom conducted the warrantless search of the locker." Ibid. It also noted that "even if (petitioner) had wanted to retrieve his items after the expiration of the rental term, he would not have been able to do so on his own because the company, by plugging the lock, exercised exclusive dominion and control over the locker and its contents pursuant to the clearly stated company policy on the outside of the locker." Id. at 7a n.11. The court therefore concluded that "after twenty-four hours, (petitioner) may have had a subjective expectation of privacy but such an expectation was not objectively reasonable since the company had locked him out of the locker and could remove his items at any time." Id. at 9a. The court of appeals also rejected petitioner's contention that his false statement to the pretrial services officer that his name was Jose Konig Mangele should have been suppressed because he did not knowingly and intelligently waive his Miranda rights before answering the question. It held that petitioner "did not have a right to be read the Miranda warnings before he was asked his name by officer Carbol." Id. at 11a. /1/ "Although (petitioner's) response to the request for his name could have potentially incriminated him on the offenses with which he was charged," the court explained, "(i)t is clear from (the advice of rights) form that even if (petitioner) had provided incriminating information, it would not have been used against him on the charges that he was then facing." Id. at 11a-12a. Because "the routine information (petitioner) provided could not therefore have incriminated him," the court found that "the only purpose officer Carbol's question could have furthered was routine processing." Id. at 12a. It thus concluded that petitioner "did not have a right to be read the Miranda warnings" before "officer Carbol asked routine processing-type question such as (petitioner's) name, address and related matters." Ibid. /2/ Judge McMillian dissented. Pet. App. 19a-23a. In his view, petitioner "had a legitimate expectation of privacy in the bus station locker, despite the expiration of the initial 24-hour rental period, and thus had standing to challenge the warrantless search of the bus station locker and the seizure of its contents, specifically the false identification documents and the gun." Id. at 21a. Judge McMillian would also have suppressed petitioner's statement to the pretrial services officer. He believed that "the 'booking' exception should not apply because the pretrial services officer's question about identity to someone who is charged with crimes involving false identification was reasonably likely to elicit an incriminating response." Id. at 22a. Judge McMillian would have reversed petitioner's convictions on three of the 16 counts and would therefore have remanded for resentencing. /3/ ARGUMENT 1. Petitioner contends (Pet. 8-12) that he had standing to challenge the warrantless search of the bus terminal storage locker in which false identification documents and the pistol were found. It is, of course, well-settled that the "capacity to claim the protection of the Fourth Amendment depends not upon a property right in the invaded place but upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place." Rakas v. Illinois, 439 U.S. 128, 143 (1978). To satisfy that test, a defendant must establish that his subjective expectation of privacy is "'one that society is prepared to recognize as "reasonable."'" Id. at 143-144 n.12 (quoting Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring)). See also Minnesota v. Olson, 110 S. Ct. 1684, 1687 (1990). Petitioner's fact-bound contention that the court of appeals incorrectly applied that test to the facts of this case does not warrant this Court's review. Petitioner rented the storage locker at the bus terminal on November 30, 1988, for a 24-hour period. As petitioner notes (Pet. 10 n.1), the contract on the locker clearly stated: "After 24 hours contents may be removed and held 30 days then sold for accrued charges." When petitioner's rental term expired on December 1 and he failed to pay for additional time, the rental company plugged the lock to prevent petitioner from removing its contents. Thus, when the locker was opened eleven days later on December 12, the rental company had exclusive control over the locker and its contents. Indeed, petitioner would not have been able to retrieve the items stored in the locker from the rental company unless he paid the accrued rental charges. In those circumstances, the court of appeals correctly concluded that any subjective expectation of privacy in the locker and its contents that petitioner may have entertained "was not objectively reasonable since the company had locked him out of the locker and could remove his items at any time." Pet. App. 9a. Cf. Rawlings v. Kentucky, 448 U.S. 98, 104-106 (1980); United States v. Rahme, 813 F.2d 31, 34-35 (2d Cir. 1987); United States v. Ramirez, 810 F.2d 1338, 1341 & n.3 (5th Cir.), cert. denied, 481 U.S. 1071 (1987), 482 U.S. 908 (1987) and 484 U.S. 844 (1987). 2. Petitioner also contends (Pet. 13-15) that his misrepresentation of his name to the pretrial services officer does not fall within the routine booking question exception to Miranda v. Arizona, 384 U.S. 436 (1966). In Pennsylvania v. Muniz, 110 S. Ct. 2638, 2650 (1990), this Court ruled that routine questions concerning a suspect's name and other biographical information that are necessary to complete booking are exempted from Miranda's coverage. The Court noted, however, that "'(w)ithout obtaining a waiver of the suspect's Miranda rights, the police may not ask questions, even during booking, that are designed to elicit incriminatory admissions.'" Id. at 2650 n.14 (quoting Brief for United States as Amicus Curiae 13). In this case, the court of appeals correctly concluded that the pretrial services officer's question about petitioner's name was a routine booking question that was not designed to elicit an incriminatory admission. As the court of appeals noted (Pet. App. 10a), the pretrial services officer was gathering information for the sole purpose of preparing a summary report to be used by the district court in determining whether petitioner was eligible for pretrial release. To be sure, since petitioner had been charged with offenses for falsely stating his name on government application forms, his response to the request for his name could have potentially incriminated him on those charges. As the court of appeals emphasized (Pet. App. 11a), however, the written advice of rights form provided to petitioner expressly stated that no information given to the pretrial services officer could be used against him on the charges he was facing. Thus, if petitioner had admitted his correct name to the pretrial services officer, that information could not have been used to prove his true identity. His statement of a false name, however, constituted a new and separate offense. Accordingly, because the pretrial services officer's request for petitioner's name was clearly not designed to elicit any incriminatory admission, it fell outside the protections of Miranda. 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 JOSEPH C. WYDERKO Attorney FEBRUARY 1991 /1/ The court noted that "although it appears that (petitioner) was given the substance of the Miranda warnings before he misrepresented his name to officer Carbol, we assume, without deciding, that he did not intelligently or knowingly waive his rights." Pet. App. 11a (footnote omitted). /2/ The court noted that "a different case would be presented if officer Carbol has asked (petitioner) his name without informing him that his response could not be used against him at trial on the charges that he then faced." Pet. App. 12a. /3/ Specifically, Judge McMillian would have reversed petitioner's convictions on Counts XI, XII, and XIII. The false identification documents and the pistol found in the bus station storage locker formed the basis for Count XI (possession of five or more false identification documents in violation of 18 U.S.C. 1028(a)(3)) and Count XII (unlawful possession of a firearm in violation of 18 U.S.C. 922(g)(1)). Petitioner's false statement to the pretrial services officer was the basis for Count XIII (false statement in violation of 18 U.S.C. 1001).