UNITED STATES OF AMERICA, PETITIONER v. ALBERTO ANTONIO LEON, ET AL. No. 82-1771 In the Supreme Court of the United States October Term, 1982 The Solicitor General, on behalf of the United States, petitions for a writ of certiorari to review the decision of the United States Court of Appeals for the Ninth Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit PARTIES TO THE PROCEEDING In addition to the parties shown by the caption of this case, Armando Lazaro Sanchez, Patsy Ann Stewart and Ricardo Albert Del Castillo were appellees below and are respondents here. TABLE OF CONTENTS Opinions below Jurisdiction Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D OPINIONS BELOW The opinion of the court of appeals (App. A, infra, 1a-6a) is unreported. The ruling of the district court suppressing evidence (App. D, infra, 9a-14a) is unreported. JURISDICTION The judgment of the court of appeals was entered on January 19, 1983 (App. B, infra, 7a). A petition for rehearing was denied on March 4, 1983 (App. C, infra, 8a). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the Fourth Amendment exclusionary rule should be modified so as not to bar the admission of evidence seized in reasonable, good-faith reliance on a search warrant that is subsequently held to be defective. STATEMENT On October 2, 1981, a five-count indictment was returned in the United States District Court for the Central District of California charging all four respondents with conspiring to possess and distribute cocaine, in violation of 21 U.S.C. 846 (Count I) (E.R. 1-3). /1/ In addition, respondents were variously charged in substantive counts with the possession of cocaine (Counts II, III and V) and methaqualone (Count IV) with intent to distribute, in violation of 21 U.S.C. 841(a)(1) (E.R. 4-7). Respondents thereafter moved to suppress contraband and other evidence seized pursuant to a judicial warrant authorizing the search of residences and automobiles belonging to them (E.R. 8-9, 98-99, 108-109, 123-124, 126-127). Following an evidentiary hearing, the district court granted the motions to suppress in part, finding that the search warrant was not supported by probable cause (App. D, infra, 10a). /2/ The court of appeals affirmed the suppression order, with one judge dissenting (App. A, infra, 1a-6a). 1. The affidavit in support of the search warrant contained the following information: /3/ On August 18, 1981, a confidential informant of unproven reliability told Officer Cyril A. Rombach of the Burbank, California, Police Department that two persons whom he knew as "Armando" and "Patsy" were selling large quantities of cocaine and methaqualone (quaaludes) from their residence at 620 Price Drive in Burbank (E.R. 75). /4/ In addition, the informant stated that he had been present at the Price Drive residence five months earlier and had seen "Patsy" sell 500 methaqualone tablets (ibid.). At the same time, the informant observed a shoe box containing between $50,000 and $100,000 that belonged to "Patsy." Finally, the informant stated that "Patsy" and "Armando" kept only relatively small quantities of drugs at the Price Drive residence, storing the remainder at another location somewhere in the "hill area" of Burbank (ibid.). On receipt of this information, Burbank police officers instituted a month-long investigation that first focused on the Price Drive residence and later on residences located at 716 South Sunset Canyon in Burbank and 7902 Via Magdelena in Los Angeles. On August 19, 1981, officers drove to the Price Drive residence and observed automobiles registered to respondents Armando Sanchez and Patsy Ann Stewart parked outside (E.R. 76). Although a records check revealed that Stewart had no prior criminal record, Sanchez had been found with $20,000 in currency at the Miami Airport in 1977, and had been arrested in Miami in December 1978 for possession of marijuana (ibid.). While surveilling the Price Drive residence on August 24, 1981, officers observed the arrival of an automobile registered to respondent Del Castillo (E.R. 77). A Latin male exited the vehicle, entered the house, and returned to the vehicle ten minutes later carrying a small paper bag. He then drove away. A background check disclosed that in January 1979 Del Castillo had been arrested in Miami for possession of 50 pounds of marijuana while he was attempting to board an aircraft bound for Los Angeles (E.R. 77-78). The telephone number for his employer that Del Castillo had given the probation authorities turned out to be registered to respondent Leon. Leon, in turn, had been arrested in 1980 on cocaine and quaalude charges and in 1979 on quaalude charges (E.R. 78-80). In addition, police officers were told by a woman who previously had been arrested with Leon that Leon was a drug importer affiliated with the "Cuban Mafia" (E.R. 78-79), and from a second informant that Leon had several thousand quaalude tablets at his residence (E.R. 79). Utility records showed that Leon lived at 716 South Sunset Canyon in Burbank (ibid.). On August 25, 1981, officers observed Thomas Kilburn enter the Price Drive house and emerge a short while later carrying a paper bag (E.R. 80). The officers determined that Kilburn had been arrested in 1974 for possession of hashish and cultivation of marijuana (E.R. 80-81). On August 26, 1981, the officers observed an unidentified individual enter the Price Drive residence and emerge a short time later carrying a small box (E.R. 81). On August 28, 1981, officers observed that Del Castillo's vehicle was driven from Price Drive to a condominium at 7902 Via Magdelena. Later that day, Sanchez drove in his vehicle from Price Drive to Leon's Sunset Canyon residence, where Sanchez obtained a small package and returned to Price Drive. Later, an unidentified man drove to the Price Drive residence and entered the house. At about the same time, a man driving Del Castillo's vehicle arrived, ran into the residence, and ran back out immediately. Sanchez then left the Price Drive house, drove to a neighboring town, parked his car, and entered an unknown house. Before surveillance was lost, Sanchez was observed returning to his car with a large rectangular container (E.R. 81-83). On September 8, 1981, officers were surveilling a house as part of another drug investigation. They observed Patsy Stewart drive up to the house. A female left the house and entered Stewart's vehicle. One minute later, she returned to the house carrying a small paper sack. Later that day, the occupants of that house were arrested for purchasing amphetamines from persons not related to this case (E.R. 83-84). On September 11, 1981, the officers saw Sanchez and Stewart drive to the Los Angeles airport, where Sanchez, carrying only a small briefcase and a garment bag, boarded a flight for Miami (E.R. 84-85). Four days later, Stewart was driven to the airport in Del Castillo's automobile. Visibly upset when told that she could not carry a large suitcase on the plane with her, Stewart checked the bag and boarded a flight for Miami (E.R. 87-88). Stewart and Sanchez both returned to Los Angeles on September 19, 1981. Although they had been seated together on the plane, Stewart and Sanchez deplaned and walked through the terminal separately; they rejoined one another only near the exit to the terminal. The pair carried many pieces of carry-on luggage, most of which they had not taken to Miami. And, although they had checked at least one piece of luggage in Miami, they did not pick up any checked luggage in Los Angeles. Nor did either of them have the large suitcase that Stewart had taken with her to Florida (E.R. 90-91). As they were entering a taxi, the two were approached by airport narcotics officers who conducted a consensual search of their luggage. A small amount of marijuana was found (E.R. 91). In the early morning hours of September 19, 1981, the officers saw a silver Chevrolet that was registered to Sanchez parked in front of Leon's house on Sunset Canyon. The vehicle was later seen at the Price Drive residence (E.R. 91-92). The officers then went to 7902 Via Magdelena, where they observed the interior lights on. This was the first time since the beginning of the investigation that the officers had seen any sign of occupancy at the condominium. /5/ Two days later, on September 21, Sanchez' automobile was observed parked outside the condominium (E.R. 92). From these observations, Officer Rombach concluded that respondents were engaged in an on-going criminal enterprise involving the transportation and distribution of controlled substances (E.R. 96). /6/ In addition, Officer Rombach opined that the Via Magdelena condominium was being used as a "stash pad" to store large quantities of narcotics that were then transported in smaller amounts to respondents' residences for distribution (E.R. 89). /7/ 2. Based on this information, a state superior court judge issued a warrant on September 21, 1981, authorizing the search of the residences at 620 Price Drive and 716 South Sunset Canyon, the condominium at 7902 Via Magdelena and automobiles registered to Sanchez, Stewart, Leon and Del Castillo (E.R. 65-69). In an ensuing series of searches, police officers seized more than four pounds of cocaine and 1,165 quaalude tablets at the Via Magdelena condominium, nearly a pound of cocaine at Leon's house on Sunset Canyon, and about an ounce of cocaine at the Price Drive residence of Stewart and Sanchez. The officers additionally found paraphernalia for testing, cutting and packaging cocaine, scales, a police radio and large amounts of currency (E.R. 48-64). Finally, a search of Stewart's automobile produced two garage door openers -- one for the Price Drive residence and one for the Via Magdelena condominium -- while a search of Del Castillo's automobile revealed a small amount of marijuana residue. 3. The district court suppressed the seized evidence, finding that there was "no question" that the reliability and credibility of the informant had not been established (App. D, infra, 10a). Although recognizing that "(s)ome details * * * tended to corroborate" the informant's information, the court concluded that such details either corroborated information about a stale transaction or were "as consistent with innocence as * * * with guilt" (ibid.). Accordingly, the court found that the search warrant was not supported by probable cause. /8/ The district court rejected the government's argument that the exclusionary rule should not apply when evidence is seized in reasonable, good-faith reliance on a search warrant (App. D, infra, 14a). In so doing, however, the district court specifically noted (ibid.): I will say certainly in my view, there is not any question about good faith. He (Officer Rombach) went to a Superior Court judge and got a warrant; obviously laid a meticulous trail. Had surveilled for a long period of time, and I believe his testimony -- and I think he said he consulted with three Deputy District Attorneys before proceeding himself, and I certainly have no doubt about the fact that that is true. 4. On appeal, a panel of the Ninth Circuit affirmed the suppression order, with one judge dissenting. The majority held that the only portion of the affidavit that adequately set forth facts to demonstrate the informant's knowledge of criminal activity -- the informant's personal observation of "Patsy's" distribution of drugs -- was fatally stale (App. A, infra, 3a). The majority further held that the information supplied by the informant was inadequate under both prongs of the Aguilar-Spinelli test /9/ and that the month-long independent police investigation was insufficient either to corroborate the informant's information or to revive the stale information (App. A, infra, 3a). Finally, the majority flatly declined to recognize a "good-faith" exception to the exclusionary rule (id. at 4a). In dissent, Judge Kennedy observed that "(t)he affidavit for the search warrant sets forth the details of a police investigation conducted with care, diligence, and good faith" (App. A, infra, 5a). Judge Kennedy concluded that the informant's information was both adequately corroborated and sufficiently current in view of the month-long surveillance, which had revealed to experienced investigators a continuous pattern of conduct that "was quite inconsistent with any explanation other than illegal drug activity" (ibid.). 5. The government petitioned the panel for rehearing, suggesting that the case be held pending this Court's decision in Illinois v. Gates, No. 81-430 (reargued Mar. 1, 1983). The petition was denied, again over Judge Kennedy's dissent (App. C, infra, 8a). REASONS FOR GRANTING THE PETITION This case raises precisely the same issue that is now pending before the Court following the reargument in Illinois v. Gates, No. 81-430 (reargued Mar. 1, 1983). /10/ We have set forth at some length our arguments in support of a "reasonable mistake" exception to the exclusionary rule in Gates, and no purpose would be served by repeating them here. /11/ As noted in our supplemental brief in Gates (at 39-40), the Court has never articulated any rationale for applying the exclusionary rule to suppress evidence obtained pursuant to a search warrant; it has simply done so without discussing the policies to be served. Thus, in Gates or, alternatively, in the present case, the Court is presented with its first real occasion to examine the policies of the exclusionary rule as they relate to evidence obtained pursuant to a warrant. This question is of fundamental importance to the administration of criminal justice and, in the event the issue is not resolved in Gates, it should be examined by the Court in this case. Accordingly, this case will either be controlled by the decision in Gates or it will present a suitable independent vehicle for the resolution of issues that may not be decided in Gates. CONCLUSION The petition for a writ of certiorari should be disposed of as appropriate in light of the Court's decision in Illinois v. Gates, No. 81-430. Respectfully submitted. REX E. LEE Solicitor General APRIL 1983 /1/ "E.R." denotes the Excerpts of Record filed in the court of appeals. /2/ Not all of the evidence was suppressed as to all of the respondents because the court held that no single respondent had a legitimate expectation of privacy in all of the places searched (App. D, infra, 10a-13a; see also page 7 note 8, infra). /3/ For the sake of brevity, only the most pertinent details of the affidavit are recounted here; however, the affidavit contains other information tending to support the existence of probable cause (see E.R. 75-96). /4/ According to the informant, "Armando" sold cocaine in quantities of one-half pound and larger, and "Patsy" sold methaqualone in quantities of 100 tablets and larger (E.R. 75). /5/ Investigation showed that the utilities at the Via Magdelena condominium were listed in Stewart's name, but that there was no telephone service (E.R. 89). /6/ Officer Rombach based his opinion on the observed behavior of the suspects assessed in light of both personal experience as a narcotics officer and specialized training in narcotics investigations (E.R. 94-95). /7/ Officer Rombach averred that major drug dealers most often store large quantities of drugs at locations other than their primary residences to minimize the risk of seizure if their activities are detected (E.R. 89). /8/ The district court rejected respondents' additional claims that the description of the items to be seized in the search warrant was impermissibly overbroad and that the officers had failed to comply with the California "knock-and-announce" rule during the execution of the warrant (App. D, infra, 9a-10a). Moreover, the court held that only Sanchez and Stewart had a sufficient expectation of privacy to challenge the search of the Price Drive residence; that only Leon had a sufficient expectation of privacy to challenge the search of the Sunset Canyon residence; and that only Stewart and Del Castillo had a sufficient expectation of privacy to challenge the searches of their respective automobiles (id. at 10a-13a). No one, in the district court's view, was entitled to challenge the search of the Via Magdelena condominium (id. at 11a). /9/ Spinelli v. United States, 393 U.S. 410 (1969); Aguilar v. Texas, 378 U.S. 108 (1964). /10/ As in Gates, this case also presented the issue whether the search warrant was supported by probable cause. Although we believe that the lower courts were clearly in error in holding that probable cause was lacking in this case, we do not seek this Court's review on that issue. The probable cause issue is factbound and not independently worthy of this Court's consideration, particularly in light of the court of appeals' decision not to publish its opinion. We note, however, that the district court thought the question was close, observing that this was "a good case to appeal" (Jan. 11, 1981 Tr. 97), and that the court of appeals was sharply divided on the issue (App. A, infra, 1a-6a). /11/ We are furnishing respondents' counsel with copies of our supplemental brief in Gates (filed Jan. 13, 1983), in which those arguments are set forth. Appendix Omitted