ALEXANDER LJACHIN, PETITIONER V. UNITED STATES OF AMERICA No. 90-7051 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 Third Circuit Brief For The United States In Opposition OPINION BELOW The judgment order of the court of appeals (Pet. App. 1-3) is unreported, but the judgment is noted at 919 F.2d 733 (Table). JURISDICTION The judgment of the court of appeals was entered on November 26, 1990. The petition for a writ of certiorari was filed on February 7, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the district court correctly refused to suppress evidence seized as a result of petitioner's consent to search his house. STATEMENT After a jury trial in the United States District Court for the Eastern District of Pennsylvania, petitioner was convicted on one count of distribution of cocaine, in violation of 21 U.S.C. 841(a)(1), one count of possession of cocaine with intent to distribute it, in violation of 21 U.S.C. 841(a)(1), and five counts of use of a telephone in connection with a narcotics offense, in violation of 21 U.S.C. 843(b). He was sentenced to a total term of 121 months' imprisonment. The court of appeals affirmed. 1. The evidence presented at the pre-trial suppression hearing and at the trial itself showed that a team of DEA agents and Philadelphia police officers arrested petitioner early on the morning of April 27, 1989. The authorities apprehended petitioner not far from his house as he was trying to sell approximately five kilograms of cocaine. After the arrest, petitioner asked whether "there was anything to do to help himself out." C.A. App. 81A. Police Officer Kane then advised petitioner of his Miranda rights. Petitioner agreed to talk to the arresting officers and explained that he was delivering the cocaine for three women who were waiting for him at his house to return with the money. Id. at 83A, 95A-96A. Petitioner stated "that if he didn't come back real soon, (the women) were going to know something was up." Id. at 96A. Petitioner invited the officers to accompany him back to his house in order to arrest the women. Id. at 83A, 98A. As a result, Officer Kane drove with petitioner to his house. Petitioner opened the door with a key; Officer Kane followed him into the house. C.A. App. 83A-84A. Three women were seated in the living room. One woman asked petitioner "how did it go." Id. at 84A. Petitioner replied that "everything went okay, I got it right here." Ibid. At this point, other officers entered the house, arrested the three women, and made a brief "safety check of the house." Id. at 107A; see id. at 84A, 106A-107A, 119A, 133A. During this security check, several officers found petitioner's mother in an upstairs bedroom. DEA Agent McCarty explained the situation; petitioner's mother consented to a complete search of the house. Id. at 107A-111A. Before conducting a search, Agent McCarty went downstairs and asked petitioner for his consent to search the house. Agent McCarty explained to petitioner that he had the right to refuse. Petitioner indicated he understood and, after reading the consent to search form, agreed to the search and signed the form. Id. at 111A-112A. During the search, the officers found 596 grams of cocaine and other narcotics paraphernalia in petitioner's bedroom. Id. at 206A-207A, 478A-482A, 585A-590A. After a hearing, the district court denied petitioner's motion to suppress evidence seized during the search of his house. C.A. App. 77A-224A. As the court explained: (I)t's certainly reasonably clear that the search followed (petitioner's) consent so we're going to deny (petitioner's) motion to suppress totally with the understanding that we find that the consent of (petitioner's mother) is invalid, but that (petitioner's) consent predated the search, so that it's, in my view, a legitimate search. Id. at 224A. 2. After the jury's verdict, petitioner filed a motion for a new trial contending, among other claims, that the district court erred in denying his pre-trial motion to suppress evidence. C.A. App. 37A-44A. The district court denied petitioner's motion. The court reiterated that the record showed that after his arrest, (petitioner) was advised of his constitutional rights, and told the arresting officer, essentially, that he wished to cooperate with them in order to improve his own lot. Approximately twenty minutes later, he invited drug agents to his house and let them in with his key. He was presented with a consent to search form, and he signed it. Id. at 48A. "Under these circumstances," the court held, "(petitioner) gave his consent to the search freely." Ibid. 3. In the court of appeals, petitioner contended that his consent to search the house was tainted by the officers' unlawful protective sweep search of the house and their conduct in obtaining consent for the search from his mother. Pet. C.A. Br. 16-24. In an unpublished order, the court of appeals summarily rejected that contention and affirmed petitioner's conviction. Pet. App. 1-3. /1/ ARGUMENT 1. Petitioner contends (Pet. 4-6) that the district court should have suppressed the evidence seized as a result of his consent to search, because that consent was tainted by the officers' unlawful previous sweep search of the house. See Maryland v. Buie, 110 S. Ct. 1093 (1990). That contention fails for two reasons. First, the officers' sweep search was not unlawful, since petitioner had consented to it by his initial invitation. Second, even if that search fell outside the scope of petitioner's invitation, it did not taint petitioner's later consent to search the house. As an initial matter, suppression would have been an unwarranted remedy given the absence of a Fourth Amendment violation. The record shows that petitioner, after his arrest, invited the officers to his house in order to continue their investigation. The officers entered the house with petitioner's permission. Once the officers were inside the house, petitioner at no time suggested that their limited sweep search of the house exceeded the scope of his consent. In these circumstances, petitioner's express consent sanctioned the officers' actions for purposes of the Fourth Amendment. /2/ Even if the officers' sweep search were held to have violated the Fourth Amendment, suppression would have been inappropriate since that event did not at all taint petitioner's later consent to search the house. This Court has repeatedly held that evidence may not be suppressed unless the reviewing court determines that "the challenged evidence is in some sense the product of illegal government activity." United States v. Crews, 445 U.S. 463, 471 (1980); see New York v. Harris, 110 S. Ct. 1460, 1463 (1990); Wong Sun v. United States, 371 U.S. 471, 481 (1963). Here, petitioner voiced his desire to "help himself out" following his arrest, C.A. App. 81A, and thus invited the officers into his house in order to arrest his partners. Nothing that occurred during the officers' limited sweep search of the house prompted or contributed to petitioner's later decision to consent to the search of the house. To the contrary, the record shows that petitioner's consent was the product of his understandable desire to cooperate with the authorities. Accordingly, petitioner's consent was not "'come at by exploitation' of * * * (his) Fourth Amendment rights." New York v. Harris, 110 S. Ct. at 1644 (quoting United States v. Crews, 445 U.S. at 471). /3/ 2. Petitioner's contention (Pet. 6) that the decision below creates a conflict among the circuits is meritless. In four decisions petitioner cites, the courts held that an illegal entry tainted the consent to search. See United States v. Ducchi, 906 F.2d 1278, 1285 (8th Cir. 1990); United States v. Timberlake, 896 F.2d 592, 595 (D.C. Cir. 1990); United States v. Howard, 828 F.2d 552, 553-554 (9th Cir. 1987); United States v. Vasquez, 638 F.2d 507, 526-527 (2d Cir. 1980), cert. denied, 450 U.S. 970 (1981). Here, by contrast, there is neither a prior illegal entry nor a sufficient nexus between the entry and petitioner's later consent. Petitioner's reliance on United States v. Carson, 793 F.2d 1141 (10th Cir.), cert. denied, 479 U.S. 914 (1986), is particularly far afield, since the court there held that the defendant's voluntary consent to the search of his truck purged the taint of an earlier warrantless search. 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 MARCH 1991 /1/ The court of appeals also rejected petitioner's claims that the prosecutor's closing argument was improper, that the district court erroneously admitted testimony regarding petitioner's narcotics dealing, that the district court erred in refusing to allow petitioner to contest the chain of custody regarding certain evidence, and that the district court should have reduced the applicable base offense level under the Sentencing Guidelines for petitioner's acceptance of responsibility. Pet. App. 1-3. Petitioner has not sought further review of those claims. /2/ For that reason, petitioner errs in relying on Maryland v. Buie, 110 S. Ct. 1093 (1990). In any event, it appears that on the record presented, the officers did have a sufficient basis for "believing that the area to be swept harbors an individual posing a danger to those on the arrest scene." Id. at 1098. /3/ The record belies petitioner's assertion (Pet. 5-6) that his mother's consent to the search prompted his consent. See C.A. App. 111A-112A.