VICTOR MANUEL VALENCIA-ROLDAN, PETITIONER V. UNITED STATES OF AMERICA No. 89-6923 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. 281-290) is reported at 893 F.2d 1080. JURISDICTION The judgment of the court of appeals was entered on January 10, 1990. The petition for a writ of certiorari was filed on March 13, 1990. The jurisdiction of the Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether law enforcement officers violated the "knock and announce" requirements of 18 U.S.C. 1309 in conducting a consensual search of petitioner's apartment. 2. Whether the search of petitioner's apartment was validly authorized by the consent of a joint occupant. STATEMENT Following a bench trial in the United States District Court for the Central District of California, petitioner was convicted of possessing cocaine with intent to distribute, in violation of 21 U.S.C. 841(a)(1); using a juvenile to commit a drug offense, in violation of 21 U.S.C. 845b; and conspiring to commit those offenses, in violation of 21 U.S.C. 846. He was sentenced to seven years' imprisonment. The court of appeals affirmed. Pet. App. 281-290. 1. Petitioner shared an apartment in Eagle Rock, California, with his girlfriend, Martha Lopez, who was a minor. On June 19, 1988, Juan Fredy Ramirez-Arboleda, who temporarily was staying with petitioner and Lopez, took $13,000 from the apartment and, on instructions from petitioner, who was in Alaska at the time, purchased one kilogram of cocaine. Ramirez then taped the cocaine to Lopez's back and drove her to the Los Angeles International Airport, where she was scheduled to board a flight to Fairbanks, Alaska. Lopez was arrested before she could board the plane. Pet. App. 283-284. During post-arrest interrogation, Lopez consented to a search of the apartment she shared with petitioner. Los Angeles Police Department Detective Searle and DEA Special Agent Woessner went to the apartment, knocked on the door, and announced their presence. Agent Woessner heard an individual approach the door, then turn and run away. Woessner knocked again and ordered the occupant to open the door. When that did not happen, he and Detective Searle forcibly entered the apartment. As they came through the door, Searle and Woessner saw Ramirez, who was moving quickly away from them, toss a small object into a nearby bookcase. The object was later found to be a folded dollar bill containing a small amount of nearly pure cocaine. Pet App. 283-284. After confirming Ramirez's identity and that petitioner and Lopez lived there, the two officers arrested Ramirez and searched the apartment. They found a scale, a "pay and owe" notebook, two radio pagers, and a small amount of cocaine. Pet. App. 284. Acting pursuant to a warrant, Searle and Woessner arrested petitioner on his return from Alaska the following week. They found $6,000 in cash, a $3,000 Western Union money transfer made out to Lopez, and paperwork listing the names of Ramirez, Lopez, and Mariano Rivera (the name under which Lopez was booked to fly to Fairbanks) on petitioner at the time of his arrest. Petitioner admitted having been in Alaska, where he was waiting for Lopez, but denied knowing of any cocaine. Later, however, he admitted having arranged for Lopez to smuggle cocaine to Alaska by sending her $3,000 for the trip, but denied that the cocaine was his. Pet. App. 284. 2. Prior to trial, petitioner moved to suppress the evidence seized in the search of his apartment. He argued that, despite Lopez's consent, the search was unlawful because the officers did not obtain the consent of Ramirez, who was present in the house at the time of the search, and because petitioner would not have consented to the search if he had been present. He also argued that in entering the apartment the officers improperly failed to comply with the provisions of the "knock and notice" statute, 18 U.S.C. 3109. After a hearing, the district court denied the motion. 3. The court of appeals affirmed, rejecting petitioner's challenge to the denial of the suppression motion. First, the court held that petitioner lacked standing to contend that the officers failed to comply with the "knock and notice" statute, because he was not present at the time of the search. Pet. App. 285 n.5. Next, the court rejected petitioner's challenge to the validity of Lopez's consent to the search of the apartment. The court noted that because Lopez shared common authority over the apartment, she could consent to the search under United States v. Matlock, 415 U.S. 164 (1974). The court then determined that her consent was not rendered invalid by the fact that another co-tenant, Ramirez, was present in the apartment at the time of the search and had not expressly consented to the search. Id. at 285-287. ARGUMENT Petitioner renews his contention that the search of his apartment was unlawful. First, he argues (Pet. 5-6) that, in entering the apartment pursuant to Lopez's consent, the officers improperly failed to comply with the "knock and announce" provisions of 18 U.S.C. 3109. In addition, he argues that Lopez's consent to the search was invalid because Ramirez, who was present in the apartment at the time of the search, objected to it. The courts below correctly rejected those contentions. 1. Section 3109 provides in pertinent part that an "officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance(.)" The purposes of the statute are to protect privacy interests and "to safeguard officers, who might be mistaken, upon an unannounced intrusion into a home, for someone with no right to be there." Sabbath v. United States, 391 U.S. 585, 589 (1968). By its plain terms, Section 3109 applies only to entries for the purpose of executing a search warrant; this Court has never applied that provision to consensual entries. /1/ Nevertheless, the Court has stated that the validity of an entry into a house to make a warrantless arrest is governed by the same factors that are reflected in the requirements of Section 3109. Sabbath, 391 U.S. at 588; Miller v. United States, 357 U.S. 301, 306 (1968). /2/ Cf. Ker v. California, 374 U.S. 23, 53 (1963) (Brennan, J., concurring and dissenting) (expressing the view that unannounced entries are barred by the Fourth Amendment). While the proper application of "knock and announce" requirements to consensual entries is by no means clear, we assume for purposes of this case that such requirements do apply to consensual entries authorized by a person who is away from the premises when the police enter and search. See 3 W. LaFave, Search and Seizure, Section 8.3(d), at 250-251 (2d ed. 1987). On that assumption, the court of appeals was nevertheless correct in holding that petitioner lacked standing to raise the issue because he was not present in the apartment at the time of the entry. Pet. App. 225 n.1. Although petitioner clearly had a legitimate expectation of privacy in the interior of his apartment, that interest was entirely overcome by the consent to a search that was provided by a person who lived at the apartment; petitioner cannot protest an entry properly authorized by a joint occupant. United States v. Matlock, 415 U.S. 164, 171 n.7 (1974). The "knock and announce" requirement addresses a distinct interest: the interest of one in the dwelling at the time of the search to have reasonable notice of the police's presence and purposes. The requirement protects against "(t)he embarrassing consequences which could easily flow from unannounced intrusions(.)" Keiningham v. United States, 287 F.2d at 129. Because the "knock and announce" requirements safeguard the privacy interests retained by individuals who are present in their house at the time of an authorized entry, an absent resident cannot complain about whether the entry into the house is announced or unannounced. /3/ The purposes of the "knock and announce" rule are simply not implicated as to absent residents. Cf. New York v. Harris, No. 88-1000 (Apr. 18, 1990), slip op. 5-6 (refusing to suppress statements taken outside the home after an illegal entry because such suppression "would not serve the purpose of the rule that made Harris's in-house arrest illegal"). In any event, there was no violation of the "knock and announce" requirements in this case. See Gov't C.A. Br. 19-20. To begin with, the officers in this case did knock and announce their presence. The evidence showed that Agent Woessner twice knocked and announced loudly that he was a police officer; only after hearing running footsteps from inside the house in a direction away from the door did Agent Woessner forcibly enter the apartment. See pp. 2-3, supra. Courts have repeatedly held that similar entries -- indeed, even those made without any prior announcement -- can be justified by exigent circumstances. See, e.g., Sabbath v. United States, 391 U.S. at 1579 & n.8; Ker v. California, 374 U.S. at 47 (Brennan, J., concurring and dissenting); United States v. Tracy, 835 F.2d 1267, 1270 (8th Cir.), cert. denied, 486 U.S. 1014 (1988); United States v. Kovac, 795 F.2d 1509, 1513 (9th Cir. 1986), cert. denied, 479 U.S. 1865 (1987); United States v. James, 764 F.2d 885, 888 (D.C. Cir. 1985). A "reasonable interpretation" of the running footsteps here was that the occupant was "well aware of the purpose of the police visit and (was) moving to destroy evidence." United States v. James, 764 F.2d at 888. In such circumstances, police officers are justifies in entering the premises at once. See ibid.; United States v. Mapp, 476 F.2d 67, 75 (2d Cir. 1973). Cf. Minnesota v. Olson, No. 88-1916 (Apr. 18, 1990), slip op. 8-9 (exigent circumstances may include the imminent destruction of evidence). 2. Nor is there any merit to petitioner's claim (Pet. 6-7) that the search of his apartment was unlawful despite Lopez's consent because Ramirez, who was present in the apartment at the time of the search, objected to it. As an initial matter, that issue is not properly presented in this case; there is nothing in the record to indicate that Ramirez objected to the search. The most that can be said is that there was no evidence that he affirmatively consented to it. In United States v. Matlock, supra, this Court explained that "when the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over the premises * * * or effects sought to be inspected." 415 U.S. at 171. The Court reasoned that the "authority which justifies the third-party consent * * * rests * * * on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched." Id. at 171 n.7. /4/ Under the rationale of Matlock, the consent to search of one joint occupant of a residence is valid as against all other such occupants, even if they are present and nonconsenting; the consenting occupant has his "own right" to allow a search, and each of the occupants assumes the risk of such consent by the others. See J.L. Foti Construction Co., Inc. v. Donovan, 786 F.2d 714, 716-717 (6th Cir. 1986); United States v. Baldwin, 644 F.2d 381, 383 & n. 1 (5th Cir. 1981); United States v. Bethea, 598 F.2d 331, 335 (4th Cir.), cert. denied, 444 U.S. 860 (1979); United States v. Hendrix, 595 F.2d 883, 885 (D.C. Cir. 1979) (per curiam); United States v. Sumlin, 567 F.2d 684, 688 (6th Cir. 1977), cert. denied, 435 U.S. 932 (1978). That principle fully applies here. It is undisputed that Lopez shared common authority over the apartment. See Pet. App. 285. Accordingly, she was entitled to consent to the search of the apartment; her consent was not defeated by Ramirez's presence in the apartment when the search was carried out. Any claim that Lopez's consent was invalidated by Ramirez's presence requires proof that Ramirez had a right of "access or control" with respect to the apartment that was at a minimum equal -- and likely superior -- to that of Lopez. But in fact, Ramirez was only "temporarily staying" at the apartment, see Pet. App. 283, whereas Lopez resided there. A guest in a house cannot override his host's consent to the entry of the police. Cf. Minnesota v. Olson, No. 88-1916 (Apr. 18, 1990), slip op. 7-8 (noting that even though an overnight guest has an expectation of privacy in his host's dwelling, the host retains "ultimate control" of visitors to his house). The cases on which petitioner relies do not help him. In Tompkins v. Superior Court, 59 Cal.2d 65, 378 P.2d 113 (1963), the Supreme Court of California held that "one joint occupant who is away from the premises may not authorize police officers to enter and search the premises over the objection of another joint occupant who is present at the time, at least where as in this case, no prior warning is given, no emergency exists, and the officer fails even to disclose his purpose to the occupant who is present or to inform him that he has the consent of the absent occupant to enter." 59 Cal.2d at 69, 378 P.2d at 116. Thus, Tompkins simply involves the application in the consent search area of the principles embodied by the "knock and announce" requirement; it stands for the proposition that "one joint occupant cannot give a consent which will have the effect of permitting an intrusion upon the part of another occupant's privacy which entitles him to be free of unannounced intrusion and its attendant dangers." 3 W. LaFave, supra, Section 8.3(d), at 251. Here, as we have shown, petitioner does not have standing to object to the fact that the officers' entry into the apartment was unannounced because, unlike the defendant in Tompkins, he was not present in his apartment when the entry occurred. United States v. Impkin, 728 F.2d 1228 (9th Cir. 1984), is similarly of no help to petitioner; even if the result in Impink conflicted with the result in this case, the intra-circuit conflict would not provide an occasion for review by this Court. But, Impink is distinguishable in any event because it held only that the implied consent to search of one with an interior right of access to premises could not stand against the objection of one who possessed a superior right of access and who was present on the premises at the time of the search. In contrast, there is nothing in the record here to suggest that Ramirez objected to the search, or that Ramirez's right of access and control with respect to the apartment was superior to that of Lopez. 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 APRIL 1990 /1/ Indeed, the word "break" in Section 3109 has been construed to mean "enter without permission." Keiningham v. United States, 287 F.2d 126, 130 (D.C. Cir. 1960). /2/ The precise rule expressed in Sabbath -- that a warrantless entry of a dwelling must be preceded by notice and announcement of purpose -- appears to have been superceded by other developments in Fourth Amendment jurisprudence. Under Payton v. New York, 445 U.S. 573 (1980), a warrantless police entry to arrest, absent consent or exigent circumstances, violates the Fourth Amendment; consequently, the entry analyzed in Sabbath would be unlawful wholly apart from the failure of the police to give notice. /3/ Petitioner's only "interest" in Ramirez's being afforded prior notice of the police's presence would be in securing for him an opportunity to dispose of incriminating evidence before the officers could enter the apartment. Needless to say, that is not the type of interest that the "knock and announce" requirements were designed to protect. /4/ One of the questions presented in Rodriguez v. Illinois, No. 88-2018 (argued Mar. 20, 1990), is whether the warrantless entry of a dwelling is justified under the Fourth Amendment when law enforcement officers reasonably, but mistakenly, believe that the third party who permits the entry has authority to do so. That ground for sustaining an entry is not at issue here; it is undisputed that Lopez had actual authority to consent.