MILLER GONZALES, PETITIONER V. UNITED STATES OF AMERICA No. 88-6447 In the Supreme Court of the United States October Term, 1988 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The First Circuit Brief For The United States In Opposition Opinion Below The opinion of the court of appeals (Pet. App. A12 et seq.) is reported at 858 F.2d 800. JURISDICTION The judgment of the court of appeals (Pet. App. A1) was entered on October 6, 1988. A petition for rehearing was denied on November 28, 1988. The petition for a writ of certiorari was filed on January 13, 1989. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the warrantless arrest of petitioner was supported by exigent circumstances and probable cause. STATEMENT Following a jury trial in the United States District Court for the District of Rhode Island, petitioner was convicted on two counts of possessing more than five kilograms of cocaine with intent to distribute it, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(A); one count of importing more than five kilograms of cocaine, in violation of 21 U.S.C. 952(a) and 960(b)(1) and 18 U.S.C. 2; and one count of conspiring to import more than five kilograms of cocaine, in violation of 21 U.S.C. 952(a) and 960(b)(1). Four of petitioner's five co-defendants were convicted on the same charges, and the other co-defendant was acquitted. Petitioner was sentenced to concurrent 30-year terms of imprisonment on each count plus a 20-year term of supervised release. 1. The evidence at trial, which is summarized in the opinion of the court of appeals (858 F.2d at 802-803), showed that petitioner participated in a scheme with other Colombian nationals to import large quantities of cocaine. On April 11, 1987, a Panamanian-flag vessel, the Margranel, arrived in Providence, Rhode Island, directly from Colombia. Government agents had the vessel under surveillance because they had received a tip that the ship was probably carrying cocaine, a drug that had been seized from the ship on six previous occasions. Id. at 802. The next morning government agents spotted a vehicle, owned by Aldemar Orejuela, parked near the vessel. Orejuela and another person were in the car. During the afternoon of the same day, government agents saw Orejuela's vehicle, with three occupants, circle the parking lots of the Howard Johnson Inn and the Susse Chalet in a nearby town. A few hours later, petitioner, Orejuela, and Victor Gonzalez drove to the Howard Johnson Inn. Shortly after midnight, Orejuela's car left the motel with two occupants, went directly to the port area, and returned. An agent saw petitioner and Orejuela in the motel corridor near room 106. 858 F.2d at 802. Forty-five minutes later, at about 2 a.m. on April 13, agents positioned at the dock saw two darkly dressed individuals move toward the bow of the Margranel. A crewman from the ship met those two men and gave them two duffel bags in return for a large white plastic bag. The two suspects then ran into a tank farm area of the dock. A government agent pursued them. He found the two men, Sigifredo Gonzalez and Jorge Rengifo, crawling on their stomachs toward an opening in a fence, approximately 100 yards from the ship. Six feet from Rengifo were two duffel bags containing more than 55 kilograms of cocaine. Agents later recovered from the Margranel a white plastic bag containing $89,610 in cash. 858 F.2d at 802-803. Soon after the arrest of Sigifredo Gonzalez and Rengifo, government agents checked the guest register of the Howard Johnson Inn and found that room 106 was registered for a party of two to a "Gonzalez," the same surname as one of those arrested at the dock. Hotel records showed that the room was rented on April 11 with a checkout for April 13. 858 F.2d at 803; Gov't C.A. Br. 8. An agent telephoned room 106 after stationing other agents at both its doors. A Spanish-speaking male answered the telephone. The agent stated in Spanish to the person who had answered the call "that there had been problems at the vessel. That people had been arrested and that it would be best that they leave the room and the area." The sole response to the agent was, "What happended?" Within ten seconds, the door to room 106 opened from within, and petitioner, fully dressed and carrying a duffel bag, started through the door. Victor Gonzalez was close behind him, and Orejuela was still on the motel bed. Agents entered the room and placed the three under arrest. 858 F.2d at 803. The agents handcuffed petitioner and the two co-defendants and one officer seized a key lying on top of the room's television. Agents then searched the suspects. On Victor Gonzalez they found a rental receipt for an automobile that had been seen near the dock on the day the Margranel arrived, and identification showing that he was a resident of Flushing, New York. They seized from Orejuela the key to room 106 (the room they were in) and similar identification showing a New York address. From petitioner, they seized two slips of paper listing combinations of letters that appeared to be code names, each combination followed by a number. Fifteen of the letter combinations on the papers matched those found on the packages of cocaine seized in the duffel bags seized at the dock. An agent testified at trial that, in his judgment, the lists identified persons who were to receive specified cocaine packages. 858 F.2d at 803. Further investigation showed that the key found on the top of the television belonged to room 204 of the Susse Chalet and that that room was registered for two to Sigifredo Gonzalez. A search of that room pursuant to a warrant revealed two pieces of paper, one with a telephone number and "106" written on it, and the other with a sketch of the dock area and the ship. The telephone number was partially illegible but similar to that for the Howard Johnson Inn. 858 F.2d at 803. 2. Petitioner was convicted on four counts arising out of those incidents, and the court of appeals unanimously affirmed. Petitioner first argued that the agents knew that their telephone call to room 106, in which they warned the occupants that "it would be best that they leave the area" because there had been problems at the vessel, would cause the occupants to flee. He argued that the telephone call was an attempt to evade the requirement for an arrest warrant by artificially creating exigent circumstances. The court of appeals, however, held that the call "was a creative investigative effort and simply an example of good police work." 858 F.2d at 803. The court "recognize(d), of course, that "exigent circumstances" do not excuse the failure to secure a warrant when those circumstances are created by government officials who unreasonably and deliberately delay or avoid obtaining the warrant." Id. at 804. But the court distinguished that principle, and the cases supporting it, on the ground that the agents did not have probable cause at the time of the telephone call. "(S)ince the agents could not have obtained a warrant if they tried, they could not possibly have telephoned room 106 in order to avoid the requirement of an arrest warrant." Ibid. Petitioner also argued that there was no probable cause to support his arrest. The court of appeals disagreed, based on the information (short of probable cause) that was available to the agents before the telephone call and the defendants' "unusual reaction to a three AM telephone call alluding to rather specific activities." 858 F.2d at 804. The court also held that exigent circumstances justifying an entry into the hotel room existed: "under the pressures of the moment (waiting for each suspect to leave the room) might well have endangered the agents." Id. at 805. /1/ ARGUMENT The decision of the court of appeals is correct and does not conflict with any decision of this Court or another court of appeals. Further review is not warranted. /2/ Petitioner's principal contention (Pet. 6) is that the decision below conflicts with United States v. Collazo, 732 F.2d 1200 (4th Cir. 1984), cert. denied, 469 U.S. 1105 (1985); United States v. Curran, 498 F.2d 30 (9th Cir. 1974); and the First Circuit's own decision in Niro v. United States, 388 F.2d 535 (1968). /3/ That contention is plainly wrong. The court of appeals cited those very cases for the proposition that officers who have probable cause must seek a warrant rather than create some exigency that will allow them to evade the warrant requirement. 858 F.2d at 804. The court of appeals unhesitantly endorsed that principle (ibid.) but held that it does not apply to this case. In Collazo, Curran, and Niro, the officers had probable cause long before any "exigency" arose. See Collazo, 732 F.2d at 1204 (at least eight hours' opportunity to obtain a warrant); Curran, 498 F.2d at 34 (probable cause existed for 2-1/2 hours before exigency arose); Niro, 388 F.2d at 538-539 (probable cause to obtain a warrant existed for more than 12 hours, yet agents did nothing to secure a warrant). /4/ In this case, by contrast, the officers did not have probable cause before the exigency arose (see 858 F.2d at 804), and therefore they necessarily engaged in further investigation rather than seeking a warrant immediately. Nothing in Collazo, Curran, or Niro condemns that behavior. United States v. Calhoun, 542 F.2d 1094 (9th Cir. 1976), cert. denied, 429 U.S. 1064 (1977), and United States v. Ferrara, 539 F.2d 799 (1st Cir. 1976), on which petitioner also relies (Pet. 8), are similarly unhelpful. /5/ In Calhoun, the court rested its decision on the fact that search warrants for other premises had been obtained earlier and there was no sound reason why a warrant for the subject premises could not have been obtained at that time. In Ferrara, far from reaching a decision at odds with its later decision in this case, the court of appeals drew precisely the same distinction it drew here: the court reversed a suppression order on the ground that the officers' failure to seek a warrant before exigent circumstances arose was based on uncertainty about the existence of probable cause, rather than an effort to evade the warrant requirement. 539 F.2d at 802-803. There is no rule, and no decision of any court of appeals that rests on a rule, that the police may not ever take actions that themselves give rise to exigent circumstances. The only rule that courts of appeals have applied is that, once probable cause arises and a warrant could be obtained, law enforcement officers may not create exigent circumstances in order to circumvent the warrant requirement. /6/ "(G)ood police work," 858 F.2d at 803, such as that involved in this case, may often lead to exigent circumstances, but the Fourth Amendment does not regulate police behavior that stops well short of a seizure and does not constitute an attempt to evade the Warrant Clause. Cf. Michigan v. Chesternut, 108 S. Ct. 1975 (1988) (Fourth Amendment does not regulate noncoercive police "chase" that led defendant to abandon drugs); Brower v. County of Inyo, No. 87-248 (Mar. 21, 1989), slip op. 5 (Fourth Amendment seizure requires "show of authority"). The court of appeals also was correct in its holding that there were in fact exigent circumstances once petitioner and his colleagues began to flee from room 106. This Court has long "recognized that a warrantless entry by criminal law enforcement officials may be legal when there is compelling need for official action and no time to secure a warrant." Michigan v. Tyler, 436 U.S. 499, 509 (1978); United States v. Santana, 427 U.S. 38, 42-43 (1976) ("hot pursuit" of probable felon). In the present case, the court of appeals held that it was entirely reasonable for the police to enter room 106. "In light of the timing of the suspects' attempted departure, it was reasonably apparent to the officers when the door to that (hotel) room opened that the suspects were attempting to flee due to their involvement in a serious felony." 858 F.2d at 805. Once that probable cause to arrest and search developed, the agents had no opportunity to obtain either arrest or search warrants. Only seconds elapsed from the telephone call to the opening of the door of room 106. It was not until the occupants of the hotel room reacted to the agent's telephone call, and attempted to flee, that probable cause developed. By that time, the circumstances justified immediate action, and the agents could not wait for arrangements to be made to obtain warrants. In those circumstances, the agents were clearly entitled to arrest petitioner and his compatriots, without delay, to halt their flight and to avoid endangering themselves and the suspects. "The safest and most prudent course to take was the one chosen by the agents: once the suspects opened the door and it was clear that they were leaving, the agents entered at once to surprise the entire group and to minimize the chance of any successful attempt to resist violently the arrests." Ibid. Finally, petitioner is wrong in his fact-bound contention (Pet. 8-9) that the agents lacked probable cause for his arrest after he attempted to flee. Before petitioner's flight, petitioner had been seen associating with persons linked to the drug-smuggling operation aboard the Margranel, two of whom shared his last name. Petitioner's flight, at 3 o'clock in the morning and in immediate response to a telephone call relating to the events of that morning where the Margranel was docked, strongly indicated that he had guilty knowledge of the cocaine offloading operation and thus made the agents' prior suspicions ripen into probable cause. See Sibron v. New York, 392 U.S. 40, 66-67 (1968); United States v. Sharpe, 470 U.S. 675, 705 (1985) (Brennan, J., dissenting). Petitioner's actions are not at all analogous to the flight that this Court found "ambiguous" in Wong Sun v. United States, 371 U.S. 471, 482 (1963). The fleeing suspect in Wong Sun was an individual who had retreated into his home when confronted with an undercover narcotics agent who falsely claimed to have come for laundry and dry cleaning. Flight of that sort "signified a guilty knowledge no more clearly than it did a natural desire to repel an apparently unauthorized intrusion." 371 U.S. at 483. That is very different behavior from that of a suspect who flees from the safety of his hotel room based on a mention of specific criminal activity and arrests elsewhere. Nothing in Wong Sun proscribes the commonsense inference that petitioner's flight signified a very substantial involvement in the scheme to import cocaine aboard the Margranel. There was probable cause for petitioner's arrest. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. WILLIAM C. BRYSON Acting Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General SHELLEY A. LONGMUIR Attorney MARCH 1989 /1/ The court of appeals also resolved against the defendants two issues that petitioner has not raised here. The court held that there was probable cause to seize the hotel keys found in room 106 as likely evidence of the crime that the police were investigating. 858 F.2d at 805-806. The court additionally held that the evidence was sufficient to sustain the convictions. Id. at 806-809. /2/ We are responding to the present petition, but have waived the right to respond to the related petitions in Gonzalez v. United States, No. 88-6443, and Rengifo v. United States, No. 88-6394, because petitioner in this case has, but petitioners in those cases lack, standing to challenge the entry into and any search of room 106; neither petitioner in No. 88-6443 nor petitioner in No. 88-6394 was in the hotel room when the telephone call from the agent was made. Rather, both men were apprehended at the dock crawling through the tank farm. /3/ Even if the decision below were in conflict with Niro, such an intracircuit conflict would not be a basis for a grant of certiorari. Wisniewski v. United States, 353 U.S. 901, 902 (1957). /4/ Even so, the Curran court upheld the search in that case on the basis of the exigent circumstances doctrine. The part of Curran that supports the proposition for which the court of appeals cited the case is dictum. /5/ Petitioner also cites Davis v. United States, 327 F.2d 301, 306 (9th Cir. 1964), but in that case the court upheld a warrantless search on the basis of consent. The case has nothing to do with any issue in this case. /6/ In addition to the cases that petitioner cites, most of the cases that the petitioner in No. 88-6443 cites stand for the same proposition. See United States v. Thompson, 700 F.2d 944, 949-950 (5th Cir. 1983) (discussing possibility that government created exigent circumstances only after first determining that agents could have obtained a warrant earlier); United States v. Hultgren, 713 F.2d 79, 86 (5th Cir. 1983) (posing question as "whether the agents' failure to avail themselves of the opportunity to obtain a warrant earlier * * * is fatal to the government's claim that subsequent exigent circumstances justified the warrantless arrest"); United States v. Segura, 663 F.2d 411, 415 (2d Cir. 1981) (agents' conduct should be appraised "during the entire period after they had a right to obtain a warrant and not merely from the moment when they knocked at the front door" (quoting United States v. Rosselli, 506 F.2d 627, 630 (7th Cir. 1974)), aff'd on other grounds, 468 U.S. 796 (1984); United States v. Morgan, 743 F.2d 1158, 1161 (6th Cir. 1984) (affirming district court ruling that there were no exigent circumstances because "there was sufficient time" to obtain an arrest or search warrant"). The one other case on which the petitioner in No. 88-6443 relies may not stand for that proposition, but neither does it conflict with the decision in this case. In United States v. Socey, 846 F.2d 1439 (D.C. Cir.), cert. denied, 109 S. Ct. 152 (1988), the court upheld a warrantless entry based on exigent circumstances. The court's statement that "police officers cannot deliberately create exigent circumstances to justify a warrantless entry into a private dwelling" was merely dictum and, in any event, was just an imprecise paraphrase of the rule of Thompson and other Fifth Circuit cases. In none of these five cases, and in none of petitioner's cases, did a court hold that evidence should be suppressed because officers who did not yet have probable cause created "exigent circumstances."