STEPHEN A DUBOV, PETITIONER V. UNITED STATES OF AMERICA No. 89-6292 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 memorandum opinion of the court of appeals, Pet. App. A, is unreported, but is noted at 883 F.2d 1025 (Table). JURISDICTION The judgment of the court of appeals was entered on August 10, 1989. The petition for a writ of certiorari was filed on December 18, 1989, and is therefore out of time under Supreme Court Rule 20.1 (1980). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioner's confession was involuntary. STATEMENT After a jury trial in the United States District Court for the Northern District of California, petitioner was convicted of possession with intent to distribute approximately 13 kilograms of cocaine, in violation of 18 U.S.C. 841(a)(1). Petitioner was sentenced to life imprisonment and fined $1 million. /1/ The court of appeals affirmed. 1. On March 9, 1987, California state parole agent Richard Schramm began supervising petitioner, who was on state parole. Petitioner's conditions of parole, which he had acknowledged in writing, included a condition allowing warrantless searches of petitioner's person, residence, and property, and a prohibition against possession of any firearm. Gov't Supp. C.A. Br. 2-3. Shortly before his scheduled release from parole, petitioner failed to appear at two previously arranged meetings with Agent Schramm. Schramm decided to conduct a search, prusuant to the parole condition, of petitioner's residence. Schramm, accompanied by two other agents, proceeded to the residence and informed petitioner of his intention to search. Petitioner and his girlfriend were ushered into the dining room, where an agent stayed with them. A male visitor was allowed to leave. Gov't Supp. C.A. Br. 3. Agent Schramm went up to the second floor, where he found a double-barreled shotgun in a bedroom. Returning to the first floor, he arrested petitioner for violating his parole by possessing a firearm. Schramm went back upstairs, where he found, in a paper bag, a plastic bag containing a large quantity of a white powdery substance. At Schramm's request, one of the two other agents contacted the Narcotics Division of the San Francisco Police Department for assistance. Gov't Supp. C.A. Br. 3-4. Officer Mario Delgadillo arrived at the residence and tested the white powder, which proved positive for cocaine. Delgadillo then read petitioner his Miranda rights. Petitioner said that he understood his rights and did not want to talk to Delgadillo, but did want a lawyer. Delgadillo helped the agents to complete their search of the lower level of the house, then moved petitioner and his girlfriend upstairs. Shortly after the agents began to search the second floor, petitioner called Delgadillo aside and asked the officer to let his girlfriend go. Delgadillo said the search would have to be completed first. Petitioner then offered to show the office where 13 kilograms of cocaine were located if the officer would allow his girlfriend to leave. Delgadillo said he would consider it. Gov't Supp. C.A. Br. 4-5. Delgadillo and petitioner went into a bedroom, where at petitioner's direction Delgadillo recovered 13 kilograms of cocaine from behind a concealed panel over the bed. /2/ Petitioner said the cocaine was his. His girlfriend was released. Delgadillo and the agents continued to search the house. They found marijuana, more cocaine, drug distribution paraphernalia, and a nylon bag containing $7,264. Gov't Supp. C.A. Br. 5. After the search was completed, DEA agents arrived at the house. Agent Richard G. Plunkett approached petitioner, who was sitting in the kitchen, and asked him if he had been read his rights and understood them. Petitioner indicated that he did. Plunkett asked petitioner if he would answer a few questions. Petitioner agreed to do so. Gov't Supp. C.A. Br. 5-6. Plunkett asked petitioner why he had 13 kilograms of cocaine in his house while he was still on parole. Petitioner said he expected to begin selling cocaine in kilograms quantities when, a few days later, his parole term ended. Plunkett asked petitioner whether he had been selling cocaine while on parole. Petitioner said he had, but only in small quantities, to avoid trouble with the police. Petitioner also said that the $7,000 found by the agents was a down payment for seven of the kilograms Delgadillo had found. He was to pay $17,500 per kilogram for them and intended to resell them in the Bay area for between $20,000 to $21,500 apiece. Although petitioner was fully cooperative and answered questions, he began, as time passed, to sweat profusely and nod off to sleep. Plunkett interpreted this to mean that petitioner was using heroin. Gov't Supp. C.A. Br. 6. 2. In the district court, petitioner moved to suppress the cocaine seized at his residence and his statements admitting possession of the cocaine on the ground that the warrantless search of the residence was unlawful. Because the search was proper under the conditions of petitioner's parole, the district court denied the motion. Gov't Supp. C.A. Br. 8 n.3. /3/ Petitioner did not claim in the district court that his statements to the law enforcement officers were involuntary or had been coerced in violation of his Fifth Amendment right to counsel. 3. The court of appeals affirmed. Without reaching the issue of whether petitioner had waived his voluntariness claim, the court found that his confession was not elicited by police coercion, and was therefore voluntary under Colorado v. Connelly, 479 U.S. 157, 167 (1986). The court further found that petitioner was lucid when he confessed, and therefore concluded that his confession was knowing and intelligent under Grooms v. Keeney, 826 F.2d 883, 887 (9th Cir. 1987). Pet. App. A2. /4/ ARGUMENT Petitioner renews his claim, first raised in the court of appeals, that he was subjected to police coercion in violation of his Fifth Amendment right to counsel under Miranda v. Arizona, 384 U.S. 436 (1966). Pet. 3-4. /5/ As the court of appeals correctly found, this fact-bound contention is without merit. It does not warrant further review by this Court. 1. Not only is the record barren of support for petitioner's claim that he was subjected to police coercion, but the evidence at trial flatly contradicts that claim. Once Officer Delgadillo had ascertained that the substance found by Agent Schramm was cocaine, he read petitioner his Miranda rights; when petitioner declined to speak further with him, the interrogation stopped. Shortly after the officers began to search the second floor of the residence, however, petitioner himself initiated a second conversation with Delgadillo. Once petitioner began this conversation, he waived his Fifth Amendment right to counsel, and Officer Delgadillo properly questioned him. Edwards v. Arizona, 451 U.S. 477, 484-485 (1977). /6/ While Delgadillo did tell petitioner that the officers would not allow anyone to leave the residence until their search was completed, he did so only in response to petitioner's question, and his statement was not coercive. See Colorado v. Connelly, 479 U.S. 157, 167 (1986). Moreover, the detention of petitioner's girlfriend until completion of the parole agents' valid consensual search for additional contraband was entirely proper. See Michigan v. Summers, 452 U.S. 692, 705 (1981) (detention of occupant permissible during search of residence for contraband pursuant to valid warrant). It was only during this second conversation with Officer Delgadillo, a conversation that petitioner had himself initiated, that petitioner offered to show the officers where the 13 kilograms of cocaine were hidden. Petitioner then took Delgadillo into a bedroom, pointed out the panel behind which the cocaine was concealed, and told Delgadillo how to remove the panel. In the totality of these circumstances, petitioner's course of conduct cannot reasonably be characterized as "coerced." /7/ It may be true, as petitioner suggests, that he was motivated to lead Officer Delgadillo to the 13 kilograms of cocaine by a desire to secure his girlfriend's release. Pet. 3. He may even have felt "coerced" to cooperate. Ibid. Petitioner's motivation and subjective feelings, however, are not relevant to the issue of whether his Fifth Amendment rights were violated. In the absence of coercive police activity, the Constitution is not violated. Colorado v. Connelly, 479 U.S. 157, 164, 167 (1986) ("coercive police activity is a necessary predicate" to finding of involuntariness; suspect's mental condition alone is insufficient). In the present case, as the court of appeals correctly found, petitioner's confession was not elicited by police coercion. Pet. App. A2. Accordingly, he was not deprived of his Fifth Amendment right to counsel. 2. Petitioner's related suggestion that his actions were involuntary because he was under the influence of heroin at the time he led Officer Delgadillo to the 13 kilograms of cocaine and claimed ownership of them, is also without merit. Pet. 2-3. To begin with, petitioner misstates the sequence of events on the day of the search when he asserts that "(he) was under the visible influence of heroin during (his conversations with Officer Delgadillo), and was sweating profusely and nodding off periodically." Pet. 2-3. The only relevant testimony in the record, that of DEA Agent Plunkett, shows that the DEA agents did not arrive at petitioner's residence and Agent Plunkett did not interview petitioner or observe his physical condition until after petitioner had led Officer Delgadillo to the 13 kilograms of cocaine and claimed ownership of them. There is thus no evidence that petitioner was either influenced or impaired by heroin during his contacts with Officer Delgadillo, and the record related to those contacts convincingly refutes any suggestion that petitioner's purported heroin use had rendered his previous actions involuntary. Accordingly, the court of appeals correctly found that petitioner was lucid when he confessed, and that his confession was therefore knowing and intelligent. Pet. App. A2. Furthermore, even if petitioner was suffering from heroin withdrawal when he spoke with Officer Delgadillo, that circumstance cannot, without police coercion, constitute a violation of petitioner's Fifth Amendment rights or render his statements constitutionally involuntary. Colorado v. Connelly, 459 U.S. at 164, 167. /8/ 3. Finally, petitioner plainly waived the claim that his confession was involuntary when he failed to move to suppress his statements in the district court. Although the court of appeals did not rely on waiver in rejecting petitioner's Fifth Amendment claim, the government may "defend its judgment on any ground properly raised below whether or not that ground was relied upon, rejected, or even considered by the * * * Court of Appeals." Wahsington v. Yakima Indian Nation, 439 U.S. 463, 476 n.20 (1979). See, e.g., Blum v. Bacon, 457 U.S. 132, 137 n.5 (1982); United States v. New York Telephone Co., 434 U.S. 159, 166 n.8 (1977). Here, the government argued that "the voluntariness issue is waived on appeal." Gov't C.A. Supp. Br. 8. See id. at 11. Accordingly, petitioner's claim does not merit this Court's review. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS Assistant Attorney General THOMAS M. GANNON Attorney FEBRUARY 1990 /1/ Petitioner's prior record included a state narcotics charge in which a young woman was paralyzed as a consequence of an overdose of drugs provided by petitioner. Gov't Supp. C.A. Br. 2. /2/ Subsequent DEA tests showed that the cocaine ranged in purity from 88.5% to 98.7%. Gov't Supp. C.A. Br. 6-7. /3/ In the court of appeals, petitioner conceded the correctness of this ruling. Gov't Supp. C.A. Br. 8 n.3. /4/ In the court of appeals, petitioner had also advanced several claims of ineffective assistance of counsel during his trial. Relying on Strickland v. Washington, 466 U.S. 668, 687 (1984) and United States v. Pope, 841 F.2d 954, 958 (9th Cir. 1988), the court of appeals found that petitioner had not been prejudiced by his counsel's alleged failure to raise certain specified issues, and that petitioner's other claims could not be resolved until the district court had developed a factual record in a collateral proceeding under 28 U.S.C. 2255. Pet. App. A2. Those claims are not presently before this Court. /5/ Petitioner does not challenge his interrogation by DEA Agent Plunkett. /6/ Accord, United States v. Most, 789 F.2d 1411, 1416-1417 (9th Cir. 1986); United States v. Sanko, 787 F.2d 1249, 1250-1251 (8th Cir. 1986); Huckelbury v. Wainwright, 781 F.2d 1544, 1545 (11th Cir. 1986); Stawicki v. Israel, 778 F.2d 380, 383-384 (7th Cir. 1985), cert. denied, 459 U.S. 879 (1986). /7/ Cf. United States v. Crespo de Llano, 838 F.2d 1006, 1016 (9th Cir. 1987) (defendant's disclosure of location of cocaine voluntary and not coerced despite police informing her of search warrant and intention to "tear the house apart" until cocaine found); United States v. Most, 789 F.2d at 1416-1417. /8/ See Dunkins v. Thigpen, 854 F.2d 394, 399-400 (11th Cir. 1988) (mentally retarded defendant capable of valid waiver), cert. denied, 109 S.Ct. 1329 (1989); Wernert v. Arn, 819 F.2d 613, 616 (6th Cir. 1987) (defendant's alleged ingestion of drugs and alcohol the day before confession did not render her incapable of making valid waiver), cert. denied, 108 S.Ct. 711 (1988); United States v. Martin, 781 F.2d 671, 673-674 (9th Cir. 1986) (use of pain-killing medication did not result in overbearing of suspect's will).