JAMES T. CLARK, PETITIONER V. UNITED STATES OF AMERICA No. 90-5766 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 OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a-14a) is unreported, but the judgment is noted at 904 F.2d 696 (Table). The opinion of the district court (Pet. App. 15a-29a) is not reported. JURISDICTION The judgment of the court of appeals was entered on May 25, 1990. On August 7, 1990, the Chief Justice granted an extension of time to and including September 22, 1990, to file a petition for a writ of certiorari, and the petition was filed on September 19, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the court of appeals was correct in applying federal law, rather than state law, in evaluating the consent search of petitioner's truck. 2. Whether petitioner was subjected to vindictive prosecution, where a federal indictment was returned after petitioner filed a motion to suppress evidence in a state case based on the same incident. STATEMENT Following a jury trial in the United States District Court for the District of New Jersey, petitioner was convicted of possessing cocaine with intent to distribute it, in violation of 21 U.S.C. 841(a)(1) (Count 1); using or carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. 924(c) (Count 2); and possessing a firearm as a convicted felon, in violation of 18 U.S.C. 922(g) (Count 3). He was sentenced to consecutive terms of 20 years' imprisonment on Count 1 and 5 years' imprisonment on Count 2. He was also sentenced to a concurrent term of 5 years' imprisonment on Count 3. The court of appeals affirmed. Pet. App. 1a-14a. 1. On the afternoon of October 22, 1987, New Jersey State Trooper Peter Maniscalco was on duty in an unmarked car on the New Jersey Turnpike. As Maniscalco waited in the median strip of the highway, he noticed a brown Ford truck travelling in the left lane, less than one car length behind the vehicle ahead of it. Maniscalco pulled out and began to pursue the truck, intending to stop it and cite the driver for following too closely and failing to keep to the right of the highway. Pet. App. 2a-3a. After the truck stopped along the side of the highway at Maniscalco's direction, petitioner, the driver of the truck, got out and began to walk back toward the trooper's car. Maniscalco thought that unusual, as most motorists stopped along the Turnpike remain in their car and wait for the officer to approach them. A passenger in the truck remained inside as petitioner walked back to the police car. Pet. App. 3a. As petitioner approached, Maniscalco asked to see his driver's license and registration. Petitioner produced those documents from a wallet he was carrying in his back pocket; at the same time, he was carrying a black purse in his hand. Noticing that petitioner had taken the documents from the wallet, and not from the purse, Maniscalco took the purse from petitioner because he feared it might contain a weapon. Pet. App. 3a. Maniscalco then patted petitioner down and found no weapons on his person. He felt the purse, noticed that it apparently contained something solid, and opened it. Inside was a stack of bills two to three inches thick, totalling $3,850. Ibid. Maniscalco then asked the passenger, Calvin McLaurin, to get out of the truck. Maniscalco frisked McLaurin for weapons and again found none. Pet. App. 4a. Maniscalco then asked petitioner for consent to search the truck and petitioner agreed. Between the driver's seat and the center console Maniscalco found a pistol case containing a loaded revolver. Behind the driver's seat on the floor was a blue gym bag. Maniscalco opened the bag and found four taped bricks of what Maniscalco believed was cocaine and a clear plastic bag containing a white substance. Ibid. Maniscalco then handcuffed both petitioner and McLaurin. In a search of petitioner's pockets, the trooper found a folded 100-dollar bill with a white powder inside. A field test of the substance in the taped bricks and the plastic bag showed that it was cocaine. Pet. App. 4a. 2. On March 16, 1988, a Bergen County, New Jersey, grand jury returned an indictment charging petitioner and McLaurin with drug and weapon offenses. On July 7, 1988, while the state charges were still pending, a federal grand jury returned an indictment that charged offenses arising from the same incident. State prosecutors later dismissed the state charges. Pet. App. 5a, 20a-21a. Petitioner filed motions in the district court seeking, among other things, suppression of certain evidence and dismissal of the indictment for prosecutorial vindictiveness. At the outset, the district court held that federal law governed the lawfulness of the searches at issue in this case, even though the searches were conducted by a state officer. The court relied on the Third Circuit's opinion in United States v. Rickus, 737 F.2d 360 (1984), holding that federal law should govern the admissibility of evidence in federal court, even if the evidence was obtained in violation of state law. Pet. App. 23a-24a. Turning to the merits, the district court ruled that the search of petitioner's purse was unjustified, and it suppressed the evidence of the money found inside. Pet. App. 3a, 5a, 25a-27a. The court upheld the search of the truck, however, based on petitioner's consent. Pet. App. 27a-28a. The district court denied the motion to dismiss, finding no basis for petitioner's claim of vindictive prosecution. Pet. App. 6a, 16a. Petitioner took an appeal from his conviction, relying on the issues he had raised in his pretrial motions in the district court. The court of appeals upheld the district court's rulings denying petitioner's motion to suppress the evidence found in the truck and denying petitioner's motion to dismiss the indictment as the product of vindictive prosecution. Pet. App. 10a-11a. ARGUMENT 1. Petitioner claims (Pet. 8-13) that state law, not federal law, should apply to the question of the legality of the search of his truck. His motion to suppress, he contends, should have been judged by reference to the New Jersey State Constitution, which he says has been interpreted to afford greater protection than the federal Constitution to citizens in the area of consent seraches. /1/ Petitioner argues that the question of which law to apply has provoked a conflict among the courts of appeals. He recognizes that the majority of federal courts agree with the view of the court of appeals in this case that the admissibility in federal court of evidence obtained by state officials is judged by federal law, even though the evidence would be inadmissible under state law. See, e.g., United States v. D'Antoni, 874 F.2d 1214, 1218-1219 (7th Cir. 1989); United States v. Pforzheimer, 826 F.2d 200, 202-204 (2d Cir. 1987); United States v. Lopez, 777 F.2d 543, 550-551 (10th Cir. 1985); United States v. Quinones, 758 F.2d 40, 43 (1st Cir. 1985); United States v. Rickus, 737 F.2d 360, 363-364 (3d Cir. 1984); United States v. Montgomery, 708 F.2d 343, 344 (8th Cir. 1983); United States v. Combs, 672 F.2d 574, 578 (6th Cir.), cert. denied, 458 U.S. 1111 (1982); United States v. Castillo, 449 F.2d 1300, 1301 n.2 (5th Cir. 1971). He claims, however, that the Ninth Circuit has expressed a different view, requiring evidence that is seized by state officials and used in a federal prosecution to satisfy both federal and state standards. Contrary to petitioner's submission, the Ninth Circuit has embraced the position taken by all the other courts of appeals. In the cases cited by petitioner, United States v. Henderson, 721 F.2d 662 (9th Cir. 1983), cert. denied, 467 U.S. 1218 (1984), and United States v. Alexander, 761 F.2d 1294 (9th Cir. 1985), the Ninth Circuit discussed the desirability of adopting a rule whereby evidence seized by state officials would have to satisfy both state and federal law in order to be admissible in federal court. The court said in Henderson, 721 F.2d at 665: We think there is much to be said for the argument that federal courts should, in the interest of comity, defer to a state's more stringent exclusionary rule with respect to evidence secured without federal involvement. But the court concluded that it need not reach the issue, as probable cause for the search warrant was still established even without reference to the questioned evidence. Ibid. In Alexander, the court referred to the issue as unresolved in the circuit, and it once again concluded that it need not decide the issue, since the result would be the same under either state or federal law. 761 F.2d at 1298-1299. In a later decision, however, United States v. Chavez-Vernaza, 844 F.2d 1368, 1372-1374 (1987), the Ninth Circuit returned to this question and expressly adopted the majority position taken by the Second Circuit in United States v. Pforzheimer, supra, and the Third Circuit in United States v. Rickus, supra. The court stated, 844 F.2d 1368: We agree with the Second and Third Circuits that requiring federal district courts to look to state law when determining the admissibility of evidence obtained in accordance with federal law would hamper the enforcement of valid federal laws and undermine the policy favoring uniformity of federal evidentiary standards. We also find no justification for excluding evidence illegally seized by state officials acting independently of federal officials while admitting such evidence in cases in which federal involvement is present. Thus, the courts of appeals are now unanimous in their view of the question petitioner presents in this case. As the Second Circuit explained in United States v. Pforzheimer, 826 F.2d at 203, the rule that federal law governs the admissibility of evidence in a federal prosecution, no matter what the extent of the state officers' involvement in obtaining the evidence, is supported by this Court's decisions in Elkins v. United States, 364 U.S. 206 (1960); Olmstead v. United States, 277 U.S. 438 (1928); and Preston v. United States, 376 U.S. 364 (1964), all of which make clear that federal law governs the admissibility of evidence in federal criminal cases. Indeed, the Court in Preston flatly stated that "(t)he question whether evidence obtained by state officers and used against a defendant in a federal trial was obtained by unreasonable search and seizure is to be judged as if the search and seizure had been made by federal officers." 376 U.S. at 366. Moreover, as the Second Circuit also observed in Pforzheimer, 826 F.2d at 204, making the admissibility of evidence turn on federal law fosters uniformity of evidentiary rules among the federal courts and avoids forcing federal courts to undertake the often uncertain task of interpreting principles of state constitutional law. /2/ 2. Petitioner also contends (Pet. 13-21) that the courts below erred in denying his claim of vindictive prosecution. He argues that the state criminal case against him was dismissed and a federal prosecution initiated solely because it became apparent that the evidence against him would be suppressed under state law. Thus, he says, the federal courts were used "to effect an 'end run' around the more substantial rights accorded to citizens under New Jersey constitutional law." Pet. 14. The court of appeals properly found no merit to this argument. It is of course true that a defendant may not be penalized for exercising his constitutional rights. United States v. Goodwin, 457 U.S. 368, 372 (1982). Because of the difficulty of proving an improper vindictive motive on the part of the prosecution, this Court has held that in certain contexts it will apply a presumption of vindictiveness, which may be overcome only by objective information negating such an improper motive. Blackledge v. Perry, 417 U.S. 21 (1974); North Carolina v. Pearce, 395 U.S. 711 (1969). But the Court has applied that presumption only in situations in which there is a reasonable likelihood of vindictiveness. In cases involving claims of vindictiveness with respect to pretrial tactical measures employed by the prosecution, the Court has declined to apply such a presumption. United States v. Goodwin, supra; Bordenkircher v. Hayes, 434 U.S. 357 (1978). In both of those cases, the Court required the defendant to come forward with objective evidence of actual vindictiveness in order to establish a due process claim. United States v. Goodwin, 457 U.S. at 380-381 & n.12. The courts of appeals that have addressed claims of prosecutorial vindictiveness based on successive prosecutions by state and federal prosecutors have agreed that such claims are not likely to be valid. United States v. Schoolcraft, 879 F.2d 64, 68 (3d Cir.), cert. denied, 110 S. Ct. 546 (1989); United States v. Ng, 699 F.2d 63, 68 (2d Cir. 1983); United States v. Robison, 644 F.2d 1270, 1273 (9th Cir. 1981). The Second Circuit remarked in United States v. Ng, 699 F.2d at 68, that "(a) setting that involves the conduct of two independent sovereigns does not lend itself to the concept of vindictive prosecution." And both the Third and Ninth Circuits have held that the involvement of separate sovereigns "tends to negate a vindictive prosecution claim." United States v. Schoolcraft, 879 F.2d at 68; United States v. Robison, 644 F.2d at 1273. See also United States v. DeMichael, 692 F.2d 1059, 1062 (7th Cir. 1982), cert. denied, 461 U.S. 907 (1983). The courts have based that assessment on the well-established principle that a defendant may be prosecuted by both state and federal authorities for the same acts, and on the fact that it is difficult to characterize a prosecution as "vindictive" when the claim is that one sovereign is punishing a defendant for rights he asserted against a different sovereign. United States v. Robison, supra; United States v. Ng, 699 F.2d at 68-70. As the Third Circuit observed in United States v. Schoolcraft, 879 F.2d at 68, and in United States v. Fulford, 825 F.2d 3, 9 (1987), no allegations were directed at the United States Attorney who initiated the federal prosecution; rather, the defendant's claim of vindictiveness appeared to be directed at the State's district attorney. In the absence of any evidence that the federal prosecutor participated in the State's investigation or prosecution, and as long as it appeared that the defendant did commit a federal offense, there is no basis for any claim of vindictive prosecution. See also United States v. Oliver, 787 F.2d 124, 126 (3d Cir. 1986). Finally, in our federal system, which permits simultaneous federal and state prosecutions, "there is nothing more than exercise of normal prosecutorial discretion involved if the prosecuting attorney is satisfied to drop one prosecution if an adequate result is obtained in the other, or decides to proceed in the second case if an inadequate result is obtained in the first." United States v. DeMichael, 692 F.2d at 1062. So here, where petitioner did nothing more than assert that the timing of the two prosecutions and the dismissal of the state charges showed vindictiveness, he has failed even "to suggest a plausible motive for the purported vindictiveness of the federal prosecutor," Pet. App. 7a, much less provide any objective evidence of an improper vindictive motivation for his federal prosecution. 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 KATHLEEN A. FELTON Attorney DECEMBER 1990 /1/ According to petitioner, New Jersey's highest court has specifically rejected this Court's decision in Schneckloth v. Bustamonte, 412 U.S. 218 (1973). Therefore, when the State seeks to justify a search on the basis of consent, it has the burden of showing that a defendant had knowledge of his right to refuse consent. Pet. 9-10; Pet. App. 7a. /2/ As for the argument that state officials should not be encouraged to violate state law and engage in "forum shopping," state authorities are already punished by the exclusion of evidence in a state criminal trial. And a state official has no power to initiate a federal prosecution, which depends entirely on the discretion of the federal prosecutor. Pforzheimer, 826 F.2d at 204; United States v. Rickus, 737 F.2d at 364.