TITUS L. WILLIAMS, PETITIONER V. UNITED STATES OF AMERICA No. 90-5142 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 opinion of the court of appeals (Pet. App. 3a, at 1-5) is not reported. JURISDICTION The judgment of the court of appeals was entered on May 31, 1990. The petition for a writ of certiorari was filed on July 16, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether petitioner had standing to challenge the search of a car rented to another person where petitioner disclaimed any interest in the car immediately before the search. 2. Whether police officers with probable cause to believe a vehicle contained contraband properly searched it without a warrant. STATEMENT After a jury trial in the United States District Court for the Western District of Pennsylvania, petitioner was convicted of possession with intent to distribute cocaine, in violation of 21 U.S.C. 841(a)(1), and carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. 924(c)(1). He was sentenced to a 21-month term of imprisonment on Count one and a consecutive five-year term of imprisonment on Count two, to be followed by a three-year period of supervised release. 1. The evidence at trial revealed that around 3:00 p.m. on November 4, 1988, plainclothes detectives on the Pittsburgh police force received an anonymous phone call stating that an individual known as "Red" was arranging cocaine sales in front of the Crossroads Bar in Pittsburgh, Pennsylvania. The detectives went to the bar, where they saw an individual fitting the caller's description of "Red" take money from four different individuals during a 20-minute period. Each time, "Red" walked over to a blue Chevrolet parked in a nearby store parking lot before returning to hand a small package to each individual. Gov't C.A. Br. 7-8. After observing these transactions and calling for backup assistance, the detectives approached petitioner and said, "Hi Red." Petitioner responded by asking the detectives how they were. The detectives then requested that petitioner empty his pockets and proceeded to search him. They discovered some money, what appeared to be a marijuana cigarette, and a razor knife. They then placed petitioner under arrest. When the detectives asked petitioner for the keys to the Chevrolet, he denied that he had a vehicle. The detectives nevertheless succeeded in opening the door of the car with keys found in petitioner's pocket. In the car, they discovered 27 packets containing a total of approximately onehalf ounce of cocaine, $810 in cash, and a loaded .38 revolver. After the police determined that the car had been rented to Laddie Wilburn, a more comprehensive inventory search was conducted and the car was towed and impounded. Gov't C.A. Br. 8-11. 2. Petitioner filed a pretrial motion to suppress the evidence discovered through the search of the car. The district court denied the motion after an evidentiary hearing. The district court determined that, based upon the tip received by the detectives as well as the detectives' report of their observations of petitioner, there was probable cause for believing petitioner was using the Chevrolet to conduct illegal drug sales in the vicinity of the Crossroads bar. Pet. C.A. App. 100-101. The court further found that, although there were no specific exigent circumstances, a search warrant was not required because "under existing law the very fact that there was a motor vehicle, apparently operable, was (a) sufficient exigent circumstance per se." Pet. C.A. App. 101 (citing California v. Carney, 471 U.S. 386 (1985)). In the alternative, the court found that the detectives had "acted reasonably and prudently, under the circumstances, in taking possession of the vehicle for safekeeping and in connection therewith making the inventory * * *." Pet. C.A. App. at 101-102. 3. The court of appeals affirmed. Pet. App. 3a, at 1-5. As an initial matter, the court held that petitioner lacked standing to challenge the search of the car, first, because petitioner denied at the time of his arrest that he had any interest in the vehicle, but also because it was rented to another individual and was illegally parked in a location where petitioner had no legitimate business. Id. at 2. The court went on, in any event, to reject petitioner's Fourth Amendment claim on the merits. The court held that there was probable cause to search the automobile, and that the automobile exception to the warrant requirement was applicable despite the absence of specific exigent circumstances. The court explained that the exception is based upon the lessened expectation of privacy in an automobile as well as the automobile's ready mobility. Id. at 2-3 (citing Carney and South Dakota v. Opperman, 428 U.S. 364, 367 (1976)). In the alternative, the court held that the search could be justified as an inventory search, and that the suppression hearing testimony offered by Officer Kroner, who stated that Pittsburgh police procedures require everything in a towed vehicle to be inventoried, was "sufficient to establish the validity of the inventory." Pet. App. 3a at 3. /1/ ARGUMENT 1. The court of appeals correctly held that petitioner lacked standing to challenge the search of a car rented to someone else. See United States v. Boruff, 909 F.2d 111, 116-117 (5th Cir. 1990) (defendant lacked standing to challenge search of a rental car, since only the named renter had legal right to operate it and rental agreement prohibited use of car for illegal activity). There is no disagreement among the circuits on this issue, and no warrant for further review by this Court. Furthermore, there is no merit to petitioner's claim (Pet. 11-12) that the decision below is inconsistent with Minnesota v. Olsen, 110 S. Ct. 1684 (1990); Jones v. United States, 362 U.S. 257 (1960); or United States v. Portillo, 633 F.2d 1313, 1317 (9th Cir. 1980). Those cases recognize that an overnight guest or borrower of a car may have standing to challenge a search, but none of them involves a rental car where the rights (and hence any legitimate expectations of privacy) of persons other than the named renter are limited by the rental agreement. Since petitioner did not rent the automobile at issue here, he cannot substantiate his contentions that he was a "lawful borrower" (Pet. 12) and that he "not only had permission to use the automobile, but had * * * the power to exclude all others from using it" (Pet. 11). To the extent there was any doubt about petitioner's standing to challenge the search of a car rented to another, the court of appeals properly relied upon petitioner's pre-search disclaimer of any interest in the car. Pet. App. 3a, at 2; see Pet. C.A. App. 135, 237238 (officers' suppression hearing testimony regarding petitioner's denial that he had a car). The court's reasoning is consistent with decisions of other courts holding that a defendant's disclaimer of ownership in response to official questioning constitutes an abandonment of any expectation of privacy in the property. See, e.g., United States v. Hastamorir, 881 F.2d 1551, 1560 (11th Cir. 1989) (vehicle search valid where defendant disclaimed ownership and did not express subjective expectation of privacy in car); United States v. Boroff, 909 F.2d at 116-117 ("an individual cannot reasonably expect to maintain privacy in a vehicle when he * * * disavows any knowledge of or interest in it"); United States v. Kennon, 814 F.2d 1539 (11th Cir. 1987); United States v. Hawkins, 681 F.2d 1343, 1345 (11th Cir.), cert. denied, 459 U.S. 994 (1982). Cf. California v. Greenwood, 108 S. Ct. 1625 (1988). 2. Although the court of appeals correctly held that petitioner lacked standing to challenge the search, it went on to reject his Fourth Amendment claim on the merits. Pet. App. 3a, at 2-3. The court's reasoning on the merits is likewise correct, and does not warrant further review. As the court recognized, the automobile exception to the warrant requirement applies where police officers have probable cause to search a vehicle (as the officers here indisputably did) regardless of whether any specific exigencies exist. In California v. Carney, 471 U.S. 386 (1985), the Court explained, in upholding the warrantless search of a motor home, that "(e)ven in cases where an automobile was not immediately mobile, the lesser expectation of privacy resulting from its use as a readily mobile vehicle justified application of the vehicular exception." Id. at 391 (citing Cady v. Dombrowski, 413 U.S. 433 (1973)). Thus, contrary to petitioner's claim (Pet. 7-10), it is irrelevant for Fourth Amendment purposes that he happened to be "arrested away from his car." Even assuming petitioner's arrest made it more likely that the car would remain where it was, at least temporarily, the automobile exception is not thereby rendered inapplicable. Michigan v. Thomas, 458 U.S. 259, 261 (1982) (per curiam) (warrantless search permissible even after "the car has been immobilized; (the justification) does (not) depend upon a reviewing court's assessment of the likelihood in each particular case that the car would have been driven away, or that its contents would have been tampered with, during the period required for the police to obtain a warrant"). See also United States v. Johns, 469 U.S. 478, 484 (1985); United States v. Ross, 456 U.S. 798, 807 n.9 (1982); New York v. Belton, 453 U.S. 454 (1981). The above authorities clearly validate the automobile search here, and petitioner is unable to cite any contrary authority or lower court confusion on this point. Indeed, one court recently explained that "(a)s the (Supreme) Court's position has crystallized, the lower federal courts, by and large, have come to conclude, often sub silentio, that so long as the vehicle search is supported by probable cause, no particular exigency (beyond the inherent mobility of any motor vehicle) need exist." United States v. Panitz, No. 90-1081, slip op. 9 (1st Cir. July 13, 1990). /2/ 3. In light of the principles just discussed, there is no need to consider whether the search could also be justified as an inventory search. However, as the court of appeals correctly concluded, there is no merit to petitioner's suggestion (Pet. 14-17) that the uncontroverted testimony regarding the Pittsburgh police policy of conducting an inventory of vehicles prior to towing (Pet. C.A. App. 38) is insufficient to validate the search under Florida v. Wells, 110 S. Ct. 1632 (1990). Although Wells holds that, in order to satisfy the requirements of the Fourth Amendment, an inventory search of an automobile must be conducted pursuant to a standardized police inventory policy, it does not suggest that such a policy can only be proved by the introduction of the written policy itself rather than through oral testimony regarding the policy. Thus, contrary to petitioner's assertion, the court of appeals correctly found the inventory search valid based on the police officer's testimony. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Acting Assistant Attorney General SEAN CONNELLY Attorney OCTOBER 1990 /1/ The court also rejected petitioner's claim, not raised in this Court, that the district court abused its discretion in admitting evidence under Fed. R. Evid. 404(b) of petitioner's prior drug distribution activities, including drug sales by petitioner using a vehicle near the Crossroads bar. Pet. App. 3a, at 3-5. /2/ Among the lower court cases cited by the First Circuit for this proposition were: United States v. Cruz, 834 F.2d 47, 51-52 (2d Cir. 1987), cert. denied, 484 U.S. 1077 (1988); Autoworld Specialty Cars, Inc. v. United States, 815 F.2d 385, 389 (6th Cir. 1987); United States v. Bagley, 772 F.2d 482, 491 (9th Cir. 1985), cert. denied, 475 U.S. 1023 (1986); United States v. Swingler, 758 F.2d 477, 489-490 (10th Cir. 1985); and United States v. $29,000 in U.S. Currency, 745 F.2d 853, 854-855 (4th Cir. 1984). Although one court has implied that some minimal showing of exigency may be required, see United States v. Hepperle, 810 F.2d 836, 840 (8th Cir.), cert. denied, 483 U.S. 1025 (1987), and another court has left open the question, see United States v. Alexander, 835 F.2d 1406, 1410-1411 (11th Cir. 1988), the opinion of the court of appeals here is not inconsistent with these decisions, nor with the decision of any other court of appeals.