LEONARD JAMES HEARN, ET AL., PETITIONERS V. UNITED STATES OF AMERICA No. 89-7753 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 Sixth Circuit Brief For The United States In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a-12a) is noted at 896 F.2d 554 (table). The order of the district court denying the motion to suppress evidence (Pet. App. 14a-15a) and the underlying report and recommendation of the magistrate (Pet. App. 14a-23a) are not reported. JURISDICTION The judgment of the court of appeals was entered on February 26, 1990. A petition for rehearing was denied on April 9, 1990 (Pet. App. 13a). The petition for a writ of certiorari was filed on June 13, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether cocaine seized pursuant to a search warrant was properly admitted under the independent source doctrine. 2. Whether petitioner Price's counsel should have been permitted to withdraw before trial. STATEMENT After a jury trial in the United States District Court for the Eastern District of Tennessee, petitioners were convicted of conspiracy to distribute cocaine hydrochloride and heroin (Count 1), in violation of 21 U.S.C. 846. /1/ In addition, petitioners Hearn, Conner, Lanxter, and Chisolm were convicted of distributing more than 500 grams of cocaine hydrochloride (Counts 3 and 4), /2/ in violation of 21 U.S.C. 841(a)(1); attempting to possess, with intent to distribute, more than 500 grams of cocaine hydrochloride (Count 7), in violation of 21 U.S.C. 841(a)(1); and using facilities in interstate commerce to promote, manage, establish and carry on a narcotics enterprise, in violation of 18 U.S.C. 1952(a)(3). Petitioners Hearn and Conner were also convicted of distributing heroin to a person under 21 years of age (Counts 5 and 6), /3/ in violation of 21 U.S.C. 841(a)(1). And, finally, Hearn was convicted of engaging in a continuing criminal enterprise (Count 2), in violation of 21 U.S.C. 848. Hearn was sentenced to 235 months' imprisonment, to be followed by eight years of supervised release; Conner was sentenced to 210 months' imprisonment, to be followed by eight years of supervised release; Lanxter was sentenced to 164 months' imprisonment, to be followed by five years of supervised release; Chisolm was sentenced to 121 months' imprisonment, to be followed by four years of supervised release; and Price was sentenced to 72 months' imprisonment, to be followed by five years of supervised release. The court of appeals affirmed. 1. The evidence at trial and at the suppression hearing showed that in September 1987 petitioners began operating a cocaine and heroin distribution network in Knoxville, Tennessee. Pet. App. 1a; Gov't C.A. Br. (Hearn) 6-10. Petitioners obtained the drugs from California, and they often used a 19-year old football player, Larry Beverly, to deliver the drugs to their customers. Pet. App. 1a; Gov't C.A. Br. (Hearn) 6-10. To receive the shipments of drugs from California, petitioners rented private mail boxes in the names of "Leco Shoes" and the "Price Agency." Pet. App. 2a; Gov't C.A. Br. (Hearn) 10. The drugs were shipped to the mail boxes interstate by UPS and Federal Express. Gov't C.A. Br. (Hearn) 6-19. One such shipment occurred on July 29, 1988, when a package addressed from "Rome Connors" was sent from a Federal Express office in Los Angeles to the private mail box rented by the "Price Agency." Pet. App. 3a; Gov't C.A. Br. (Hearn) 15; C.A. App. 576-577. A Federal Express employee in Los Angeles was suspicious of the box and marked it for a security inspection. Pet. App. 3a. The box was shipped to Memphis, Tennessee, where it was opened by the Federal Express security officer, revealing a package that contained what appeared to be pepper. Ibid. Another Federal Express employee turned the package over to the Shelby County, Tennessee, Sheriff's Department in Memphis. Ibid. Officers in the Department presented the package to a dog trained in narcotics detection, which reacted positively to it. Ibid. The officers opened the package and found an inner package containing approximately one kilogram of cocaine. Ibid.; Gov't C.A. Br. (Hearn) 15. The officers sent the package to the Memphis office of the federal Drug Enforcement Administration (DEA), which sent it on to the DEA office in Knoxville. Gov't C.A. Br. (Hearn) 15-16, 24-25. While awaiting arrival of the package, DEA Agent Persinger in Knoxville conducted a brief investigation into the "Price Agency," and found evidence linking it to narcotics trafficking. Pet. App. 3a. Agent Persinger then prepared an affidavit for a search warrant to examine the contents of the package. Ibid. In his affidavit, Agent Persinger stated that his investigation linked the Price Agency to the drug trade, that a Federal Express employee had opened the outer package and found a brown powdery sustance identified as pepper, and that a narcotics detection dog had alerted to the inner package. Ibid.; Gov't C.A. Br. (Hearn) 25. Agent Persinger did not disclose that the Memphis police had opened the inner package and confirmed that it contained cocaine. Pet. App. 3a. The search warrant issued on August 3, 1988, and that same day the package was rewrapped and prepared for a controlled delivery to the Price Agency's private mail box. Gov't C.A. Br. (Hearn) 16, 24-25. Later on August 3, 1988, Hearn, accompanied by Conner and Lanxter, picked up the package at the private mail box store. Gov't C.A. Br. (Hearn) 18. The three men met Chisolm outside the store and were arrested as they tried to leave the area. The package of cocaine was recovered from Lanxter's car. Gov't C.A. Br. (Hearn) 16-18. Petitioners moved to suppress the cocaine found in the package. 2. After a hearing, the magistrate recommended denial of the motion to suppress. Pet. App. 16a-23a. The magistrate assumed for purposes of considering the motion that the search of the inner package by the Memphis police was illegal. Id. at 18a. The magistrate found, however, that this search "did not have any effect in producing the warrant" to search the package because DEA Agent Persinger would have applied for the warrant "even had the allegedly illegal search not have occurred." Id. at 20a. The magistrate concluded that the package of cocaine was admissible under the independent source doctrine enunciated in Murray v. United States, 487 U.S. 533 (1988). Pet. App. 20a-21a. The district court adopted the report and recommendation of the magistrate and denied the motion to suppress. The court specifically held that the warrant search "was not t(a)inted by the allegedly illegal first search done by the Memphis police." Pet. App. 14a-15a (citing Murray). 3. Three days before trial, Randall Reagan, counsel for petitioner Price, filed a motion to withdraw. C.A. App. 187-188. In support of the motion, Reagan stated that he was then representing Mary Blackwater, a potential witness in petitioner's trial, in a state prosecution, and that Blackwater's co-defendant in the state case, Emlera Quince, was also a potential witness in petitioner's trial. Ibid. In addition, Reagan stated that Larry Beverly, who was to testify at petitioner's trial, had been represented in a state trial on drug charges by Harvey Goodman, an attorney with whom Reagan was associated in practice. Ibid. At a hearing on the motion to withdraw, Reagan explained that he and Goodman shared office space and a secretary but did not share fees. C.A. App. 222-223. The government told the district court that the government would not call Mary Blackwater as a witness and that it knew of no connection between Reagan's representation of Blackwater and Reagan's representation of petitioner Price. Id. at 222. Reagan then requested and was granted a hearing in chambers so he could disclose confidential information regarding the motion. Id. at 223-224. After that hearing, the district court denied the motion. Reagan renewed his motion to withdraw during Quince's testimony at petitioners' trial. C.A. App. 657. Reagan stated that he had learned from Detective Earl Ailor that Ailor had promised to assist Quince by talking to state authorities if Quince cooperated. Id. at 659. Reagan expressed his belief that, since he had received this information from Ailor through his representation of Blackwater, he could not, consistent with that representation, use it to cross-examine Quince. Id. at 657-658. Reagan admitted, however, that Blackwater had not provided him with any information concerning cooperation by Blackwater or Quince with the State. Id. at 658. The district court ruled that Reagan could cross-examine Quince with the information supplied by Ailor without breaching any attorney-client privilege; the court accordingly reaffirmed its denial of Reagan's motion to withdraw. Id. at 659-660. Reagan thereafter cross-examined both Quince and Detective Ailor but did not ask either about any promises that Ailor had made to Quince in return for cooperation. Id. at 684-688, 767-769. 4. The court of appeals affirmed in a unanimous, unpublished opinion. Pet. App. 1a-12a. The court held as an initial matter that only petitioner Conner, the sender of the package, had a reasonable expectation of privacy in its contents. Id. at 6a. The court further held that the search conducted by the Federal Express employee was a private search and that neither it nor use of the drug-detecting dog violated the Fourth Amendment. Ibid. The court assumed that the Memphis police violated the Fourth Amendment when they searched the inner package without a warrant. Id. at 7a. The court nevertheless held that because the information presented by DEA Agent Persinger in support of the search warrant was "genuinely independent of the tainted search," the cocaine was admissible under Murray, supra. Id. at 7a-8a. The court also held that the brief detention of the package from July 30 through August 2, 1988 without a warrant was not unreasonable and therefore did not violate the Fourth Amendment. Id. at 8a-10a. The court reasoned that the detention was supported by probable cause and was reasonable in light of the fact that the investigation involved three separate law enforcement units and occurred over a weekend. Id. at 9a-10a. /4/ The court of appeals upheld the district court's denial of the motion to withdraw from representation filed by counsel for petitioner Price. Pet. App. 11a. The court of appeals determined that "no actual conflict of interest prevented Price's counsel from effectively cross-examining any witnesses in this case, nor did Price's counsel receive any information tainted by an actual conflict of interest." Ibid. ARGUMENT 1. Petitioners contend (Pet. 7-13) that the courts below applied the independent source doctrine incorrectly because this case involved not only an illegal search of a package by the Memphis police but also, they allege, an illegal detention of the package for "at least two days" by federal and local officers. To the contrary, the officers had lawful custody of the package from the time they received it from Federal Express on July 30, 1988, until the search warrant issued on August 3, 1988. Moreover, the cocaine seized pursuant to the warrant was properly admitted under the independent source doctrine. a. The Fourth Amendment permits the limited detention of a package pending issuance of a search warrant when there is probable cause to believe the package contains contraband. United States v. Jacobsen, 466 U.S. 109, 114, 121 (1984); Texas v. Brown, 460 U.S. 730, 742 (1983); United States v. Chadwick, 433 U.S. 1, 13 (1977); see also G.M. Leasing Corp. v. United States, 429 U.S. 338 (1977). This principle reflects a balancing of the governmental and private interests that compete in such circumstances. Jacobsen, 466 U.S. at 124-125; United States v. Place, 462 U.S. 696, 703 (1983). /5/ With regard to controlled substances, the government has a particularly strong interest "in detecting those who would traffic in deadly drugs for personal profit." Place, 462 U.S. at 703 (quoting United States v. Mendenhall, 446 U.S. 544, 561 (1980) (opinion of Powell, J.)). Moreover, "the inherently transient nature" of illegal drug trafficking poses an enormous obstacle to detection. 462 U.S. at 704 & n.5. On the other side of the balance is the possessory interest of the individual, the nature and extent of which will vary according to the facts of each case. Id. at 705. Factors relevant to assessing this interest include whether detention occurs after the individual has "relinquished control of the property to a third party," ibid., and whether the length of the detention is brief and is justified in light of diligent efforts by officers to secure a warrant, id. at 709. Thus, in United States v. Van Leeuwen, 397 U.S. 249, 253 (1970), this Court upheld the warrantless detention of mail for 29 hours based on probable cause to believe the mail contained contraband, explaining that "(n)o interest protected by the Fourth Amendment (is) invaded by forwarding the packages the following day rather than the day when they were deposited." See also Segura v. United States, 468 U.S. 796, 812 (1984). And in Place, the authorities detained personal luggage for three days pending issuance of a warrant based on probable cause to believe the luggage contained illegal drugs. 462 U.S. at 699. There was no suggestion in Place, however, that this detention violated the Fourth Amendment. Segura v. United States, 468 U.S. at 813 n.8. These decisions compel the conclusion that the temporary detention that occurred here was permissible. First, as the court of appeals concluded, the detention was clearly supported by probable cause. Pet. App. 6a & 9a. Soon after Federal Express delivered the package to the Sheriff's office in Memphis, the officers brought in a narcotics detection dog to sniff it. When the dog alerted, the officers had probable cause to seize it. See Place, 462 U.S. at 707; United States v. Dass, 849 F.2d 414, 415-416 (9th Cir. 1988); United States v. Quinn, 815 F.2d 153, 159 (1st Cir. 1987). /6/ Furthermore, any possessory interest petitioner Conner may have had in the package was qualified by his delivery of it to Federal Express for cross-country shipment. See Place, 462 U.S. at 705; Van Leeuwen, 397 U.S. at 252-253. Finally, the length of detention was brief and was reasonable in light of the diligent efforts by police officials to secure a warrant and set up the controlled delivery. See United States v. Mulder, 889 F.2d 239, 241-242 (9th Cir. 1989) (two-year delay between seizure of drugs and issuance of search warrant did not violate the Fourth Amendment); United States v. Mayomi, 873 F.2d 1049, 1054 n.6 (7th Cir. 1989) (48-hour delay between seizure of package and issuance of search warrant did not violate the Fourth Amendment). Under these circumstances, the limited detention of the package of cocaine did not unreasonably interfere with any cognizable Fourth Amendment interest of petitioners. The detention therefore did not provide a basis for excluding the cocaine as evidence. b. The search of the package by Memphis police likewise provided no basis for suppressing the cocaine. As the courts below recognized, probable cause for searching the package developed before the search by Memphis police occurred. Pet. App. 8a & 20a. The facts that gave rise to probable cause -- for example, the information supplied by Federal Express and the positive "canine sniff" -- were developed prior to and independently of the search by local police. On this basis, the courts below correctly determined that the DEA agents would have sought the warrant if the search by local police had not taken place. Pet. App. 8a, 20a-22a. Under Murray v. United States, 487 U.S. 533, 542-543 & n.3 (1988), the evidence was therefore properly admitted. /7/ 2. Petitioner Price renews his contention (Pet. 13-17) that the trial court should have granted the motion to withdraw filed three days before trial by his counsel, Reagan, because of Reagan's representation of Blackwater in a state prosecution and Reagan's office arrangement with Goodman, who represented Beverly, a witness at petitioner's trial. The court of appeals properly rejected these contentions. Reagan's representation of Blackwater did not create a conflict of interest with respect to his representation of petitioner Price. Petitioner's contentions regarding Blackwater concerned (1) Blackwater's status as a potential witness at petitioner's trial and (2) information that Blackwater and her codefendant in the state case, Quince, had agreed to cooperate with state officials in some unspecified way. C.A. App. 222. Blackwater did not, however, testify at petitioner's trial. Nor did Blackwater supply Price's counsel, Reagan, with any of the information that Reagan indicated he might use to impeach Quince. Id. at 657-660. As Reagan admitted to the trial court, he received his information regarding Quince's cooperation with the State from a local detective, Earl Ailor, not from Blackwater. Id. at 658-659. Thus, Reagan could have used this information to impeach Quince without breaching the attorney-client privilege. Petitioner's contentions regarding his counsel's relationship with his office mate Goodman and Goodman's client, Beverly, are likewise without merit. Petitioner now asserts that Goodman gave Reagan information that Goodman learned from Beverly and that Reagan might have used to cross-examine Beverly when Beverly testified at petitioner's trial. Pet. 14. This assertion, however, contradicts Reagan's statement to the trial court that he had not learned anything through Goodman's representation of Beverly. Gov't C.A. Br. (Price) 34. In any event, Reagan did not have an attorney-client relationship with Beverly. Beverly was Goodman's client, not Reagan's. Reagan shared office space with Goodman, but he was not in partnership with Goodman. This sharing of office space did not create an attorney-client relationship between Reagan and Beverly. See United States v. Varca, 896 F.2d 900, 903 (5th Cir.), cert. denied, No. 89-1921 (Oct. 1, 1990); ABA Model Rules of Professional Conduct, Rules 1.9 and 1.10 and accompanying commentary (1989) ("two practitioners who share an office and occasionally consult or assist each other ordinarily would not be regarded as constituting a firm"). Compare Wheat v. United States, 486 U.S. 153, 160-161 (1988) (partners in a law firm). Therefore, Reagan was not barred from using any information that Goodman learned from Beverly and passed on to Reagan. Contrary to petitioner's contention (Pet. 17), there is no conflict among the circuits bearing on petitioner's claim (Pet. 16) that the trial court should have questioned him about Reagan's alleged conflict of interest. All of the cases cited by petitioner to support this claim prescribe the procedure to be followed when the court has found that an actual conflict exists. /8/ They are therefore inapposite here, where the trial court made no such finding. Furthermore, all of the cases cited by petitioner to support his contention that a conflict of interest existed here (with the exception of two cases involving facts altogether different from those here) involve government witnesses who were previously represented by defense counsel. /9/ Petitioner's counsel Reagan never represented either witness Quince or witness Beverly. Reagan therefore was not disabled by a conflict and the district court properly denied his last-minute motion to withdraw. 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 PATTY MERKAMP STEMLER Attorney OCTOBER 1990 /1/ The five petitioners are Leonard James Hearn, Vincent Wayne Conner, Richard Maurice Lanxter, Patricia Ann Chisolm, and James Price. /2/ Petitioners Hearn, Conner, and Lanxter were convicted on Count 3; petitioners Hearn and Chisolm were convicted on Count 4. /3/ Only Hearn was convicted on Count 6. /4/ In this connection, the court observed, "No suggestion has been made that the delay was due to any lack of diligence by the various police organizations involved in the detention. Likewise, no suggestion has been made that the length of the detention was based on bad faith." Pet. App. 10a. /5/ The Court in Place began its analysis by stating, "In the ordinary case, the Court has viewed a seizure of personal property as per se unreasonable within the meaning of the Fourth Amendment unless it is accomplished pursuant to a judicial warrant issued upon probable cause and particularly describing the thing to be seized." 462 U.S. at 701 (citing Marron v. United States, 275 U.S. 192, 196 (1927)). Petitioners quote this statement in isolation without acknowledging the context in which it occurs. See Pet. 10-11. Having made this statement, the Court went on to discuss prior decisions involving well established exceptions to the warrant requirement applicable "(i)n the ordinary case." Ibid. (citing, inter alia, Arkansas v. Sanders, 442 U.S. 753, 761 (1979); United States v. Chadwick, 433 U.S. 1 (1977); Coolidge v. New Hampshire, 403 U.S. 443 (1971)). On the basis of these decisions, the Court concluded that the Fourth Amendment permits warrantless temporary detentions based on less than probable cause, even when the item detained is removed directly from its owner's custody. 462 U.S. at 704-706. It follows from this conclusion that in this case police officials acted properly when they detained the package on the basis of information provided by Federal Express and conducted a "canine sniff," id. at 707. It is clear from the decisions discussed in the text that, when the "canine sniff" indicated the Federal Express package contained illegal drugs and probable cause was established, a brief continuation of detention pending issuance of a warrant was also permissible. /6/ Petitioners do not and cannot deny that law enforcement officials were entitled to rely on the information from Federal Express in developing probable cause to believe the package contained illegal drugs. See Jacobsen, 466 U.S. at 113-122. This information included the fact that in the package was a plastic package containing pepper. This information alone constituted probable cause, for it is well known to police that pepper is often used when mailing illegal drugs to throw drug-detecting dogs off the scent. Gov't C.A. Br. (Hearn) 25. Cf. Texas v. Brown, 460 U.S. at 742-743. /7/ Petitioners advance two arguments (Pet. 11-12) that were expressly rejected by this Court in Murray. Petitioners argue, first, that physical evidence, once seized, cannot be "reseiz(ed)." In Murray, this Court stated, It seems to us, however, that reseizure of tangible evidence already seized is no more impossible than rediscovery of intangible evidence already discovered. * * * So long as a later, lawful seizure is genuinely independent of an earlier, tainted one (which may well be difficult to establish where the seized goods are kept in the police's possession) there is no reason why the independent source doctrine should not apply. 487 U.S. at 542. Petitioners also suggest that application of the independent source doctrine in this case will encourage police to conduct warrantless searches whenever they know they can later ratify their actions by showing that probable cause existed at the time of the search. The very same suggestion was rejected in Murray, 487 U.S. at 540. /8/ See United States v. Winkle, 722 F.2d 605, 610-611 (10th Cir. 1983); United States v. Martinez, 630 F.2d 361, 363-364 (5th Cir. 1980), cert. denied, 450 U.S. 922 (1981); United States v. Morando, 628 F.2d 535, 536 (9th Cir. 1980); Gray v. Estelle, 574 F.2d 209, 213-214 (5th Cir. 1978); United States v. Mahar, 550 F.2d 1005, 1009-1110 (5th Cir. 1977); United States v. Garcia, 517 F.2d 272, 277 (5th Cir. 1975). /9/ See Winkle, 722 F.2d at 608 (defense counsel previously represented government witness); Martinez, 630 F.2d at 362 (same); Morando, 628 F.2d at 536 (same); Gray, 574 F.2d at 211 (defense counsel previously filed theft complaint against defendant); Mahar, 550 F.2d at 1008 (simultaneous representation of co-defendant who was expected to testify against defendant as part of plea agreement); Garcia, 517 F.2d at 274 (defense counsel previously represented government witness).