HECTOR HERNAN HOYOS, PETITIONER V. UNITED STATES OF AMERICA No. 89-7183 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A1-A75) is reported at 892 F.2d 1387. JURISDICTION The judgment of the court of appeals was entered on March 6, 1989. A petition for rehearing was denied on December 20, 1989. The petition for a writ of certiorari was filed on March 26, 1990, and is therefore out of time under Rule 13.1 of the Rules of this Court. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether a protective sweep of a residence may be conducted for the purpose of preventing the destruction of evidence. 2. Whether a protective sweep of a residence may be conducted following an arrest made just outside the residence. STATEMENT After entering a conditional plea of guilty in the United States District Court for the Central District of California, petitioner was convicted of conspiring to possess cocaine with intent to distribute it, in violation of 21 U.S.C. 846. He was sentenced to ten years' imprisonment. The court of appeals affirmed. Pet. App. A1-A75. 1. Before pleading guilty, petitioner unsuccessfully moved to suppress evidence on the ground that the protective sweep of his residence violated the Fourth Amendment. The evidence adduced at the suppression hearing is summarized in the opinion of the court of appeals (Pet. App. A3-A14, A27-A30). It showed that police officers began surveillance of 356 Eagle Nest, Diamond Bar, California, after receiving an anonymous tip that persons residing at that address were dealing in narcotics. On September 23, 1986, Los Angeles County Deputy Sheriff Thomas Mulligan observed Misael Pulgarin depart from the Eagle Nest residence and drive to a restaurant where he met petitioner. The two men then drove in their own cars to 15603 Starbuck Avenue in Whittier, California. Pet. App. A3-A7. On September 24, Deputy Mulligan began a surveillance of the Starbuck residence. At 2:00 p.m., he observed petitioner leave the house and drive by an indirect route to a public telephone, where he made two "beeper" calls. Petitioner then pulled behind a building and remained there for 20 to 25 minutes, after which he drove to another location and made one or two additional beeper calls. Pet. App. A7-A8. On September 25, the surveilling officers observed Pulgarin and Thomas Cuellar meet petitioner and Leonardo Amaya in the parking lot of a restaurant. Amaya gave Pulgarin a key, which Pulgarin used to enter a Ford pick-up truck. Amaya, Pulgarin, petitioner, and Cuellar then proceeded to another parking lot. At the parking lot, Pulgarin returned the key to Amaya, who left in the truck. Pet. App. A9. That afternoon, Deputy Mulligan observed the pick-up truck and five persons, including Pulgarin, Amaya, and Cuellar, in the garage of the Eagle Nest residence. Shortly thereafter, Amaya drove away in the truck. Sergeant Thomas Stover of the Los Angeles Sheriff's Office later arrested Amaya and searched the truck. It contained more than 100 kilograms of cocaine. Pet. App. A10-A11. After Amaya's arrest and the seizure of the cocaine, Deputy Mulligan directed Los Angeles County Deputy Sheriff Robert Schelnutt to go to the Starbuck residence to secure the premises so that evidence would not be destroyed while a search warrant was obtained. Mulligan told Schelnutt about the seizure of the cocaine, and informed him that he expected other persons involved in the narcotics transaction to be at the residence. In addition, he gave Schelnutt a description of petitioner and of petitioner's car. Pet. App. A11-A12. When he arrived at the Starbuck residence, Deputy Schelnutt, accompanied by several other officers, noticed petitioner's car in the driveway and observed two women coming out of the front door of the house. Schelnutt went to speak with the two women, while Deputy Sheriff Richard Love, dressed in his sheriff's field jacket, approached the house. As he did so, Love noticed petitioner and a woman watching him from the backyard through a fence. He drew his gun and yelled "Sheriff's Department," "freeze," "hold it," "police," or words to that effect. Petitioner and the woman then ran to the back door of the house. Love apprehended petitioner as he was pulling open the screen door. Pet. App. A12-A14. As Deputy Love attempted to arrest petitioner, Deputy Frank Rodella and another officer approached the front door of the house. At that time, Rodella heard Deputy Love state that two people were coming out of the house. He then heard Love yell, "Sheriff's Narcotics. Freeze." According to Rodella's testimony, Love then stated, "they are running back inside," whereupon Deputy Rodella and the other officer ran to the front door and forced it open. While searching the house for other persons connected with the conspiracy, the officers observed an open chest filled with a large amount of money, a money counting machine, and a calculator. Pet. App. A27-A28. 2. The court of appeals affirmed the denial of petitioner's suppression motion. Pet. App. A1-A75. The court explained that "(o)fficers who have effected an arrest at a residence may conduct a limited search for persons who may destroy evidence or pose a threat to the officers' safety, if the officers can point to articulable facts that support their belief that others may be on the premises." Id. at A31. Applying that standard, the court concluded that the officers had "sufficient articulable facts that an entry into the residence was necessary to protect the officers and to avoid the destruction of evidence." Id. at A32. In particular, the court noted (id. at A32-A33): During their surveillance of the Starbuck residence, the officers observed four people leave the residence. The initial entry through the front door was not made until Deputy Rodella() and Deputy Jameson heard another officer shout from the backyard that suspects were running back inside. Prior to entry, the officers reasonably believed that at least six men were involved in the distribution of cocaine. They knew that Amaya had been arrested and that a large amount of cocaine had been seized. Thus, there were at least five men including (petitioner) who were not in custody. They had also observed (petitioner's) white Mazda in the driveway. The officers believed that several persons who had left the residence were aware that the house was under law enforcement surveillance. In addition, any person hidden within could have heard Deputy Love's shouted commands after petitioner ran toward the house. The court also rejected the contention that a protective sweep of a residence may not be conducted if the arrest occurs outside the premises. Id. at A35-A36. The court explained that "(i)f the exigencies to support a protective sweep exist, whether the arrest occurred inside or outside the residence does not affect the reasonableness of the officers' conduct." Ibid. /1/ ARGUMENT Petitioner challenges the protective sweep of his house on two grounds. First, he contends (Pet. 6-15) that a protective sweep may be conducted only to protect the safety of police officers, and not to prevent the destruction of evidence. Second, he contends (Pet. 16-18) that a protective sweep may be conducted only pursuant to an arrest made inside a house, and not pursuant to an arrest made outside a house. 1. As this Court noted in Maryland v. Buie, 110 S. Ct. 1093 (1990), a protective sweep "is a quick and limited search of a premises, incident to an arrest and conducted to protect the safety of police officers or others" (id. at 1094). The Court held in Buie that such a search may be conducted when the searching officer has a reasonable belief that the area to be swept harbors an individual who poses a danger to the officer or others. Id. at 1095. The Court did not address in Buie, however, the question whether a protective sweep may be conducted to protect against the destruction of evidence, rather than against the threat of harm to the police. Prior to Buie, some courts, including the Ninth Circuit in this case, permitted protective sweeps to safeguard evidence from destruction. See, e.g., United States v. Kaylor, 877 F.2d 658, 664 (8th Cir.), cert. denied, 110 S. Ct. 198 (1989); United States v. Gerry, 845 F.2d 34, 36 (1st Cir. 1988); United States v. Jackson, 778 F.2d 933, 937 (2d Cir. 1985), cert. denied, 479 U.S. 910 (1986). This case does not present the question whether a protective sweep may be performed solely to protect evidence from destruction. The court of appeals upheld the protective sweep of petitioner's house not only because of the risk to evidence, but also because of the danger to the officers. Pet. App. A32. That factbound, alternative holding is entirely correct; as the court of appeals explained, after arresting petitioner the police had ample grounds for believing that confederates remained inside the house and that the safety of the officers was in jeopardy. 2. The protective sweep was not unlawful simply because petitioner was arrested just outside his house. This Court did not have occasion to address that issue in Buie, but the courts of appeals that have addressed it have uniformly held that protective sweeps may be conducted following arrests made outside a house. United States v. Jackson, 700 F.2d 181, 189 (5th Cir.), cert. denied, 464 U.S. 842 (1983); United States v. Sheikh, 654 F.2d 1057, 1071 (5th Cir. 1981), cert. denied, 455 U.S. 991 (1982); United States v. Vasquez, 638 F.2d 507, 531-532 (2d Cir. 1980), cert. denied, 454 U.S. 975 (1981); United States v. Baker, 577 F.2d 1147, 1152 (4th Cir.), cert. denied, 439 U.S. 850 (1978). /2/ In light of the purpose of the protective sweep doctrine -- to protect police officers from persons "who are dangerous and who could unexpectedly launch an attack" (Buie, 110 S. Ct. 1098) -- there should not be, as petitioner seems to suggest, a per se rule prohibiting protective sweeps following arrests made outside a house. As the court of appeals explained, "(i)f the exigencies to support a protective sweep exist, whether the arrest occurred inside or outside the residence does not affect the reasonableness of the officers' conduct. A bullet fired at an arresting officer standing outside a window is as deadly as one that is projected from one room to another." Pet. App. A35-A36. /3/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General JOEL M. GERSHOWITZ Attorney JUNE 1990 /1/ Judge Beezer dissented in part. Pet. App. A56-A75. Judge Beezer observed that "whether the arrest occurs inside or outside * * * affect(s) the reasonableness of the officer's conduct" in performing a protective sweep. Id. at A59. In any event, Judge Beezer added, the search of petitioner's house would have been unreasonable even if petitioner had been arrested inside the house. In Judge Beezer's view, there were no "articulable facts supporting a belief that anyone else might have been in the house, much less anyone who would destroy evidence or pose a threat to the officers' safety." Id. at A73-A74. /2/ The cases on which petitioner relies (Pet. 16-18) do not help him. In United States v. Napue, 834 F.2d 1311 (7th Cir. 1987), and United States v. Morgan, 743 F.2d 1158 (6th Cir. 1984), cert. denied, 471 U.S. 1061 (1985), the courts did not hold that a protective sweep following an arrest made outside a residence is impermissible as a matter of law; rather, they held that on the particular facts presented the government had failed to establish a sufficient threat to the safety of the officers. 834 F.2d at 1327-1328; 743 F.2d at 1162-1163. In United States v. Standridge, 810 F.2d 1034 (11th Cir.), cert. denied, 481 U.S. 1072 (1987), the court upheld a protective sweep following an arrest made inside the defendant's motel room. And in United States v. Aquino, 836 F.2d 1268 (10th Cir. 1988), the defendant did not challenge the protective sweep on appeal, and thus the court did not address the issue. Id. at 1270 n.2. /3/ The validity of the protective sweep of petitioner's house should not turn on the fortuitous circumstance that Deputy Love was able to apprehend petitioner just outside his house as petitioner was attempting to flee inside. If petitioner had made it inside the house before Love reached him, there can be no doubt that Love would have been entitled to pursue him inside the house (see United States v. Santana, 427 U.S. 38, 42-43 (1976)), arrest him there, and conduct a protective sweep.