BENITO MORA, PETITIONER V. UNITED STATES OF AMERICA No. 90-6137 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fifth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A) is unpublished, but the decision is noted at 911 F.2d 728 (Table). JURISDICTION The judgment of the court of appeals was entered on August 2, 1990. The petition for a writ of certiorari was filed on October 31, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the district court's denial of petitioner's motion to suppress was erroneous. 2. Whether the district court erred in permitting the government to amend an enhancement information that the government had filed prior to seeking an increased penalty on the basis of prior convictions under 18 U.S.C. 924(e)(1). STATEMENT Following a nonjury trial in the United States District Court for the Western District of Texas, petitioner was convicted of possession of a firearm by a previously convicted felon, in violation of 18 U.S.C. 922(g)(1). He was sentenced to imprisonment for 15 years, to be followed by three years of supervised release. 1. On June 11, 1989, a police dispatcher directed uniformed San Antonio officers Peter Friello and Dean Fischer to investigate a report of a disturbance at 130 H Street. Upon their arrival, the officers saw several people in the fenced-in front yard of 130 H Street talking with petitioner, who was standing on the other side of the fence in the front yard of his house at 134 H Street. Both officers recognized petitioner, whom they knew to be a heroin dealer and user, but the officers mistakenly believed that he lived several blocks away and therefore wondered why he was present at the scene of the disturbance. Pet. App. A1-A2; Pet. App. B81. Fischer went over to talk to the people at 130 H Street; Friello walked toward petitioner. When petitioner saw Friello, he turned from the fence and walked toward a pickup truck parked in the driveway. Friello saw petitioner drop a pink zip-lock plastic bag on the top of the truck. Friello knew from his experience that cocaine and heroin were sold in pink zip-lock baggies. Friello then walked toward petitioner, and petitioner walked toward the house. When Friello caught up with petitioner, another plastic bag fell from petitioner's hand and landed at Friello's feet. Pet. App. A2. Suspecting that the plastic bags contained drugs, Friello arrested petitioner. As Friello was searching petitioner incident to the arrest, a pistol fell to the ground from the leg of petitioner's trousers. Pet. App. A2. 2. A one-count indictment was filed, charging petitioner, a convicted felon, with possession of the gun in violation of 18 U.S.C. 922(g)(1). Petitioner was convicted in a nonjury trial. Prior to sentencing, the government filed an enhancement information (Pet. App. E), in which it informed the court of the applicability of 18 U.S.C. 924(e)(1) to the sentencing process. That subsection increases the penalty for a violation of 18 U.S.C. 922 from a maximum ten-year prison term to a mandatory minimum fifteen-year term if a defendant has three prior convictions for "a violent felony or a serious drug offense, or both, committed on different occasions from one another * * *." The information in terms alleged that petitioner had been convicted of four previous "violent felonies." However, the two-page information enumerated two convictions for "delivery of heroin (habitual)," as well as two convictions for "burglary with intent to commit theft." Pet. App. E1. At petitioner's sentencing hearing the government sought to amend the information by adding the words "and/or serious drug offenses" after "violent felonies." When the court asked petitioner's counsel if he had any objection, counsel responded (Pet. App. C11): Well, your honor, you know, information is filed by the United States Attorney. It doesn't have to be presented to the grand jury. However, I believe that that would have been an issue that would have been raised on appeal, and perhaps been the subject of a motion in arrest of judgment. If the court is going to allow it to be amended, I'll maintain my objection to it. Otherwise, we can talk about now how the government should have plead it properly to begin with. The court then permitted the amendment and imposed the mandatory enhanced sentence. Pet. App. C11-C12. 3. The court of appeals affirmed the conviction and sentence in an unpublished opinion. The court rejected petitioner's contention that the gun found on petitioner had to be suppressed because it was the fruit of a Fourth Amendment violation. The court held that, prior to the time Officer Friello arrested petitioner and conducted the search during which the gun was found, Friello "had reasonable suspicion, indeed perhaps even probable cause, to detain (petitioner)." Pet. App. A3. With respect to petitioner's contention that the district court erred in permitting the government to amend the enhancement information, the court noted that, although it was "admittedly a close case," petitioner's counsel's objection to the amendment "lacked specificity and consequently the plain error rule applies." Pet. App. A4. Observing that there is no statutory requirement "regarding the formalities of an enhancement information under section 924(e)(1)" (Pet. App. A4), the court held that petitioner was simply entitled to receive notice that the government would seek sentence enhancement. Since petitioner "was presented with an abundance of notice" and "(t)here is no way (petitioner) could claim surprise" (Pet. App. A5), the court held that no error was committed in permitting the government to amend the information. Pet. App. A5. ARGUMENT 1. Petitioner alleges that the police found the weapon on which this prosecution was based by means of a violation of his Fourth Amendment rights. Petitioner's argument appears to be based on the premise that "the officers' approach toward (p)etitioner" (Pet. 8) violated the Fourth Amendment absent reasonable suspicion or probable cause. a. It has long been clear that an individual is not "seized" for Fourth Amendment purposes until an "officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen." Terry v. Ohio, 392 U.S. 1 (1968). As Justice Stewart stated in his opinion in United States v. Mendenhall, 446 U.S. 544, 554 (1980), the police can be said to have seized a citizen "only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." See also Florida v. Royer, 460 U.S. 491, 497, 501 (1983) (plurality opinion); id. at 514 (Blackmun, J., dissenting); id. at 523 n.3 (Rehnquist, J., dissenting); INS v. Delgado, 466 U.S. 210, 216-217, 219-221 (1984). As this Court expressly held in Michigan v. Chesternut, 486 U.S. 567 (1988), even police pursuit of a suspect, without more, does not constitute a "seizure" for Fourth Amendment purposes. Applying these settled standards to this case, there is no indication that the police had in any way "seized" petitioner before petitioner attempted to discard the plastic bags. Therefore, petitioner's contention that the officers' conduct in "approach(ing)" petitioner (Pet. 8) violated the Fourth Amendment is mistaken. b. Petitioner also asserts that the police officers "had no articulable facts to support their (entry onto petitioner's property)." Pet. 10. The record in this case is unclear as to whether Officer Friello had yet entered petitioner's property at the time petitioner put the first plastic bag on top of the truck. See Pet. App. B80-B82. Both courts below agreed that petitioner's attempt to discard the plastic bags was sufficient to establish at least reasonable suspicion. Pet. App. A3; Pet. App. B81. Therefore, petitioner's argument that the officers entered his property without reasonable suspicion would depend on a finding -- absent from this record -- that the entry onto his property took place before he attempted to dispose of the first plastic bag. In any event, regardless of whether either of the officers were in petitioner's front yard at the time he attempted to dispose of the plastic bags, there was no Fourth Amendment violation. At no time did the officers intrude into "an area intimately linked to the home, both physically and psychologically, where privacy expectations are most heightened." California v. Ciraolo, 476 U.S. 207, 213 (1986). Thus, even if Officer Friello trespassed on petitioner's property -- and it is doubtful that a walk through a publicly accessible front yard in the circumstances of this case would constitute a trespass -- his entry did not constitute a "search" for Fourth Amendment purposes. Oliver v. United States, 466 U.S. 170, 183 (1984). c. In a supplemental pleading, petitioner argues that this case should be held pending this Court's decision in California v. Hodari D, No. 89-1632 (argued Jan. 14, 1991). In Hodari, the California Court of Appeal held that police pursuit amounts to a "seizure" when the officers give chase "in a manner designed to overtake and detain or encourage the individual to give up his flight." Hodari, Pet. App. 9. The issue in Hodari is therefore whether an individual who is fleeing from a police officer may be "seized" for Fourth Amendment purposes even though the police officer has not yet obtained physical custody of the individual. In contrast, this case involves no allegation that petitioner was fleeing or being pursued, nor any other circumstances that could have led petitioner to believe -- prior to the time he attempted to dispose of the plastic bags -- that his freedom was curtailed in any way. Therefore, resolution of the issues in Hodari will not affect the outcome of this case, which will continue to be controlled by the settled precedents cited above -- Terry, Mendenhall, Royer, Delgado, and Chesternut. 2. Petitioner also alleges that the enhanced prison term was not lawfully imposed. He maintains that the government's enhancement information was defective because it omitted reference to "serious drug offenses," and that the sentencing court could not lawfully correct the error by allowing amendment of the information to include that term. a. Petitioner claims that the court of appeals erred in determining (Pet. App. A4) that he did not properly preserve this claim, and that the claim consequently must be judged under the plain error standard. See United States v. Young, 470 U.S. 1, 15 (1985). A review of the transcript of the sentencing hearing (see Pet. App. C11) indicates that petitioner's objection to the information was unclear. Therefore, the court of appeals' determination that the objection "lacked specificity" and should be judged under the plain error standard was correct. In any event, that fact-bound determination would not warrant further review. b. Under any standard, petitioner's objection to the district court's grant of the government's motion to amend the enhancement information is without merit. As the court of appeals noted (Pet. App. A5), petitioner was entitled to notice that the government would seek enhancement of his sentence under 18 U.S.C. 924(e)(1). The original enhancement information (Pet. App. E) provided such notice, as well as notice of the particular prior offenses that would be relied upon in seeking enhancement of his sentence. Under these circumstances, petitioner does not -- and cannot -- assert that the unamended enhancement information prejudiced his defense against the sentence enhancement in any way. Especially in light of the fact that the information recited that two of the offenses involved "delivery of heroin (habitual)" (Pet. App. E1), the fact that the information erroneously characterized all four offenses as "violent felonies" -- rather than "violent felonies and/or serious drug offenses" -- is without legal significance. Petitioner's reliance upon Stirone v. United States, 361 U.S. 212 (1960), is misplaced. The Court's decision in Stirone that an indictment may not be "broadened through amendment except by the grand jury itself" (361 U.S. at 216) was based on the Fifth Amendment's requirement that prosecution be begun by "presentment or indictment of a Grand Jury." To permit amendment of an indictment without further action of the grand jury would be to eviscerate the constitutional provision. By contrast, petitioner concedes (Pet. 12) that there is no requirement -- constitutional, statutory, or otherwise -- that an enhancement information must be formally filed before the increased sentences provided for in 18 U.S.C. 924(e)(1) may be invoked. Therefore, petitioner was simply entitled to notice sufficient to enable him to defend against the sentence enhancement. Because the enhancement information, both before and after its amendment, provided him with such information, there was no defect in the sentencing proceedings in this case. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General MERVYN HAMBURG Attorney FEBRUARY 1991