GREGORY CHANDLER, PETITIONER V. UNITED STATES OF AMERICA

   No. 86-1709

   In the Supreme Court of the United States

   October Term, 1986

   On petition for a Writ of Certiorari to the United States Court of
Appeals for the Third Circuit

   Brief for the United States in Opposition

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Question presented
   Statement
   Argument
   Conclusion
   Appendix

                            OPINIONS BELOW

   The judgment order of the court of appeals (Pet. App. 12-14) is
reported at 800 F.2d 1140 (Table).  The orders of the district court
denying petitioner's motions to dismiss for a violation of the Speedy
Trial Act and to suppress evidence (Pet. App. 1-11) are unreported.

                             JURISDICTION

   The judgment of the court of appeals (Pet. App. 12-14) was entered
on August 7, 1986, and a petition for rehearing was denied on
September 26, 1986.  The petition for a writ of certiorari was filed
as of November 26, 1986.  The jurisdiction of this Court is invoked
under 28 U.S.C. 1254 (1).

                          QUESTIONS PRESENTED

   1. Whether petitioner was tried within 70 days of indictment, as
required by the Speedy Trial Act, 18 U.S.C. (& Supp. III) 3161 et seq.

   2. Whether evidence seized from petitioner's mother's apartment
should have been suppressed.

                               STATEMENT

   Following a jury trial in the United States District Court for the
District of New Jersey, petitioner was convicted of bank robbery
(Counts 2 and 3), in violation of 18 U.S.C. 2113(a), and conspiracy to
commit bank robbery (Count 1), in violation of 18 U.S.C. 371.  He was
sentenced to consecutive terms of 20 years' imprisonment on the two
bank robbery counts and a concurrent term of five years' imprisonment
on the conspiracy count.  The court of appeals affirmed by judgment
order (Pet. App. 12-14).

   1. The evidence at trial, the sufficiency of which is not in
dispute, showed that on November 23, 1984, petitioner suggested to two
of his neighbors, Johnny Trammell and John Hood, that they rob the
Midlantic National Bank in Newark, New Jersey.  /1/ Petitioner
explained his plan and assigned the tasks.  He instructed Trammell to
borrow his girlfriend's 1976 Ford Grenada as the getaway car.  That
evening, they borrowed a BB gun from petitioner's brother-in-law.  At
8:30 the next morning, they drove the Grenada to the bank, donned
their ski masks, and robbed the bank of $9,696.

   One month later, on December 27, 1984, petitioner called Trammell
and said that he wanted to rob the bank again.  On that occasion, they
were joined by Robert Hillsman, who drove them to the bank in his blue
van.  Hillsman stayed outside as petitioner and Trammell put on their
ski masks, walked into the bank, pulled the gun, and threatened the
employees.  Petitioner jumped over the counter and took $9,812.  They
fled in Hillsman's van.

   2. On January 8, 1985, Trammell was interviewed by two police
officers and two FBI agents in his apartment, at which time he
confessed to the robberies.  He identified petitioner as the
mastermind and told the officers that petitioner lived with his mother
in the same apartment building and was probably aware of their
presence.  The officers then went to the Chandler apartment to arrest
petitioner.  When they knocked on the door and identified themselves,
they heard people shuffling around inside.  A woman refused to admit
the officers and asked through the closed door whether they had a
warrant.  After additional conversation, the woman agreed to admit the
officers.  When she opened the door, the officers saw petitioner
standing a few feet from the doorway.  Petitioner was arrested and
taken to the local police station.  Pet. App. 35-38.

   The officers then asked petitioner's brother, Michael, if he would
consent to a search of the apartment.  He replied that only his mother
could give the necessary consent.  Michael telephoned his mother and
told her that the FBI had arrested petitioner and was requesting
consent to search the apartment.  An FBI agent explained to Mrs.
Chandler that she was not required to consent to the search and that,
if she did not do so, they would attempt to obtain a search warrant.
Petitioner's mother agreed to the search.  She instructed Michael to
sign the consent form and to permit the officers to search only
petitioner's room.  Pet. App. 38-40.  The officers searched the room
and found $2,050 in cash and a black ski mask.  They also seized a
pair of work boots from Michael's bedroom.  Id. at 73-74.

   3. Petitioner moved to suppress the cash, ski mask and work boots
seized from his mother's apartment.  Following an evidentiary hearing,
the district court held that the warrantless entry into the Chandler
apartment was justified by exigent circumstances (Pet. App. 48-49).
The court also held that the search of petitioner's room was justified
by Mrs. Chandler's consent.  The court concluded that Mrs. Chandler
had authority to consent to the search because she enjoyed "a general
right of access to (petitioner's) room and on occasion clean(ed) it
for him also" (id. at 41, 52).  The court further determined that Mrs.
Chandler had voluntarily given her consent to the search.  In
particular, the court found the testimony of Michael and Mrs. Chandler
"that the police threatened to 'tear the place apart' if consent to
search was not given, to be completely incredible and a lie fabricated
after the fact to assist (petitioner)" (id. at 40).  The court
accordingly denied petitioner's suppression motion insofar as it
pertained to the cash, which was seized from petitioner's room (id. at
52).

   The court initially suppressed the mask and work boots on the
ground that they had been taken from Michael's room without consent
(Pet. App. 41, 53).  On reconsideration, however, the court concluded
that the agents had actually found the ski mask in petitioner's room
and that it therefore was lawfully seized pursuant to Mrs. Chandler's
consent (id. at 73-74).  With respect to the boots, which were seized
from Michael's room, the district court found "absolutely no testimony
on the record to support (petitioner's) allegations of an expectation
of privacy in his brother's room.  To the contrary, any testimony on
this issue indicates that (petitioner) could not expect any privacy
for any possession he left in Michael Chandler's room" (id. at 71-72).
 Accordingly, the court held that petitioner was not entitled to
suppression of evidence taken from that room (id. at 70-73).

   4. The district court also denied petitioner's motion to dismiss
the indictment for violation of the Speedy Trial Act, 18 U.S.C. (&
Supp. III) 3161 et seq.  In a July 12, 1985, letter to counsel (App.,
infra, 1a-4a), the district court made a detailed speedy trial
calculations up to that date.  The court stated that the 70-day period
began to run on February 4, 1985, which was the date of co-defendant
Hood's first court appearance in the charging district.  See 18 U.S.C.
3161(c)(1).  /2/ Forty-one speedy trial days elapsed before the clock
stopped on March 18, 1985, when petitioner had a bail hearing and
moved to relieve his court-appointed attorney.  That motion was
granted three days later.  The district court excluded the next four
days, while the court sought new counsel for petitioner, under the
ends-of-justice provision, 18 U.S.C. 3161(h)(8)(A).  The court counted
the next day, March 25, toward the 70-day total, but found that the
clock stopped the following day when petitioner filed various pro se
pretrial motions.  App., infra, 2a.  From that point forward, every
day was found to be excludable:  additional motions were filed,
continuances were granted, and hearings were postponed to accommodate
defense counsel (id. at 2a-4a).  Thus, by the court's tabulations,
only 42 speedy trial days had elapsed as of July 12 (id. at 4a).

   The district court conducted a hearing on the pending pretrial
motions on July 30 and 31, 1985, and then requested additional
briefing on some motions.  The last brief was submitted on August 28,
1985.  The district court found that all the delay up to and including
that date was excludable under 18 U.S.C. 3161(h)(1)(F), the pretrial
motion provision of the Speedy Trial Act.  9/4/85 Tr. 27.  The court
rendered its decision on the pretrial motions on September 4, 1985,
and excluded the days between August 29 and the date of decision as
time during which the motions were under advisement (see 18 U.S.C.
3161(h)(1)(J)).  9/4/85 Tr. 27.  On September 6, 1985, the government
filed a motion to reconsider the district court's suppression ruling.
A hearing on that motion was conducted after trial began on September
10, 1985.

                               ARGUMENT

   1. Petitioner first contends (Pet. 8-20) that the district court
miscalculated the excludable portion of the period between his
indictment and trial for purposes of the Speedy Trial Act and that his
trial commenced more than 70 non-excludable days after indictment.
However, the district court's calculations, which are summarized above
(see pages 5-6, supra), were entirely accurate.

   Petitioner makes several errors in his own calculations.  For
example, he fails to take into account the excludable delay
attributable to his co-defendant (see 18 U.S.C. 3161(h)(7)), /3/ and
he fails to exclude the "ends-of-justice" continuance granted by the
district court pursuant to 18 U.S.C. 3161(h)(8)(A).  See pages 5-6,
supra.  But most importantly, petitioner incorrectly asserts (Pet.
12-15) that only so much of the delay between the filing of a pretrial
motion and the hearing on the motion that is "reasonably necessary"
may be excluded under 18 U.S.C. 3161(h)(1)(F).  As this Court held in
Henderson v. United States, No. 84-1744 (May 19, 1986), slip op. 5-9,
however, Section 3161(h)(1)(F) excludes, without qualification, the
entire period between the date on which the motion was filed and the
receipt of all posthearing submissions.  Under this controlling
interpretation, the district court's determination that only 42
non-excludable days elapsed prior to trial was clearly correct.

   2. Petitioner also challenges the district court's rulings on his
suppression motion.  Petitioner first objects (Pet. 24-26) to the
factual determination by the district court that his mother's consent
to the search of his room was voluntary.  Petitioner argues (Pet. 25)
that the district court should have credited the testimony of Michael
and Mrs. Chandler that the officers "threatened to wreck the apartment
if Mrs. Chandler did not consent." The district court rejected this
testimony as a "fabrication" (Pet. App. 40) and instead credited the
officers' testimony, finding that Mrs. Chandler had "freely and
voluntarily" given her consent (id. at 52).  This finding of fact,
which was concurred in by both courts below, is not clearly erroneous
and does not warrant review by this Court.  Berenyi v. Immigration
Director, 385 U.S. 630, 635 (1967).

   Petitioner next challenges (Pet. 26-30) the district court's
finding that Mrs. Chandler had access to and common authority over
petitioner's bedroom in her apartment and therefore had authority to
consent to a search of that room (Pet. App. 52).  Petitioner does not,
however, dispute the legal proposition that permission to search may
be given by one who "possesse(s) common authority over or other
sufficient relationship to the premises * * * sought to be inspected"
(United States v. Matlock, 415 U.S. 164, 171 (1974) (footnote
omitted)), and he points to no testimony supporting his claim that he
had exclusive access to his room.  Under these circumstances, the
district court's factual finding, which was sustained by the court of
appeals, does not warrant review.

   Finally, petitioner argues (Pet. 33) that the work boots seized
from his brother Michael's room should have been suppressed because
petitioner had a "subjective expectation of privacy in the boots." But
to assert a Fourth Amendment claim, petitioner must have had a
legitimate expectation of privacy in the place searched, not merely a
possessory interest in the objects seized.  United States v. Salvucci,
448 U.S. 83, 91-93 (1980);  Rakas v. Illinois, 439 U.S. 128, 140
(1978).  The district court therefore properly refused to suppress the
evidence seized from Michael's bedroom.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   WILLIAM F. WELD

      Assistant Attorney General

   PATTY MERKAMP STEMLER

      Attorney

   JUNE 1987

   /1/ The factual summary is taken from the government's brief in the
court of appeals.

   /2/ The district court erroneously stated that February 4, 1985,
also was the date of petitioner's first appearance in the district
(App., infra, 2a).  In fact, petitioner was arrested and taken before
a federal magistrate on January 9, 1985.  See Appellee's C.A. App. 2.
As explained below (see note 3, infra), however, this error does not
affect the calculation of the speedy trial period, which ran from the
date of co-defendant Hood's first appearance in the district.

   /3/ Thus, contrary to petitioner's contention (Pet. 10-11), the
70-day period did not begin to run on January 17, 1985, when the
indictment was returned.  It instead began on February 4, 1985, when
petitioner's co-defendant, who was arrested in the Northern District
of Georgia (Appellee's C.A. Br. 4), first appeared before a judicial
officer in the District of New Jersey.  18 U.S.C. 3161 (h)(1)(G) and
(H).  Compare Henderson v. United States, No. 84-1744 (May 19, 1986),
slip op. 10.

   APPENDIX