UNITED STATES v. PADILLA
Argument of William C. Bryson
Chief Justice Rehnquist: We'll hear argument next in 92-207, the United States v. Xavier Padilla.
Mr. Bryson: Mr. Chief Justice and may it please the Court:
This case calls on the Court to address the dimension of the so-called Fourth Amendment Rule of Standing as it applies to a drug-smuggling conspiracy.
The case comes from the Ninth Circuit on certiorari, and began when there was a stop on the highway between Tucson and Phoenix, Arizona, of a man... Luis Arciniega... who was transporting a large quantity of cocaine.
The traffic stop has since been found to be an invalid stop, and we haven't challenged that, the validity of the stop in this Court.
What happened after the stop was that about... so far as the record reflects, about 5 minutes into the stop Mr. Arciniega consented to the search of the trunk of the car and the officers immediately found 560 pounds of cocaine.
Mr. Arciniega then cooperated with the investigation and that led to the arrest of each of the respondents and others, and they were all charged with conspiracy and various substantive counts under the drug control statutes.
The district court found first that the stop was invalid and second that each of the respondents had standing to object to the stop of Arciniega's car and the search of the trunk that led to the drugs, and then further found that the rest of the investigation had followed from those discoveries and therefore that the evidence with respect to the defendants had to be suppressed.
The court of appeals on the Government's appeal affirmed in major part.
The court held with respect to respondent Xavier Padilla and with respect to the two Simpsons that the district court's ruling was correct, relying principally on what we will call the joint venture exception to the standing rule, the joint venture application of the standing principle, and with respect to Maria and George Padilla the court said that a remand was necessary to determine whether they had standing under this exception, and with respect to the remaining respondent the court said that he did not have the standing of this exception.
The court's rationale essentially was that because the Simpsons
"had an interest in the car and also had a supervisory or control relationship with respect to the conspiracy and the activities of the conspiracy on the day of the stop, that they had standing, and because Xavier Padilla again, like the Simpsons, had a supervisory or control relationship within the conspiracy with respect to the transportation, that he had standing to object to the stop of the car. "
Unknown Speaker: Mr. Bryson, the Ninth Circuit, as you've described, went off on some notion of standing--
Mr. Bryson: That's right.
Unknown Speaker: --Acquired to address the privacy concerns of the Fourth Amendment by virtue of the joint venture.
If we were to think that that was not the proper focus, the briefs in the case address the new argument here that well, in any event, there's standing because of the property--
Mr. Bryson: Well, Your Honor, I--
Unknown Speaker: --At least, the possessory interest.
Mr. Bryson: --Yes.
Unknown Speaker: Now, do we have to deal with that here, or should we?
Mr. Bryson: I think you should, and here's why.
The Ninth Circuit referred to the expectation of privacy, but they were clearly talking about both privacy and property interests that were affected by the stop.
There's discussion throughout the Ninth Circuit's opinion, even though they use the term expectation of privacy, which isn't precisely the right nomenclature, but they use that term to describe what they clearly meant to say was at issue here, which was both the Simpsons' ownership of the car and therefore the effect of both the stop and the ensuing search on the rights, the Fourth Amendment rights in general of the Simpsons, and also the ownership interest.
Unknown Speaker: But Mr. Bryson, the question presented in your cert petition says nothing about ownership as a justification.
Mr. Bryson: Well, Your Honor, we... in our cert petition, we address... we use the language that the court of appeals used.
Now, I think it is somewhat imprecise.
We probably should have specifically said property and privacy interest.
Unknown Speaker: You probably should, but you said nothing about it and you relied entirely on the joint venture rationale in your question.
Mr. Bryson: Well, Your Honor--
Unknown Speaker: That's the only question you asked.
Mr. Bryson: --The position taken by the court of appeals was that joint venture, which of course in their view incorporated the interest of the Simpsons in the car and the interest of Xavier Padilla in the cocaine, that that... the joint venture, including--
Unknown Speaker: I know they gave additional reasons, but you didn't challenge one of those reasons.
Mr. Bryson: --Well, Your Honor, we challenged the judgment of the court of appeals which was premised in its finding that there was an expectation of privacy, as they called it--
Unknown Speaker: You think the question directed at one part of the analysis gives you license to just challenge anything about the judgment you want.
Mr. Bryson: --Your Honor, I think there are two points to be made.
First of all, I think that the court of appeals clearly meant to encompass both privacy and property interests.
They used the wrong terminology, as this Court has--
Unknown Speaker: But you didn't challenge that part of their reasoning, is my point.
Mr. Bryson: --Well, Your Honor, I think a fair reading of our petition is that we did, and what's more... and there's a second reason.
The respondents came back and in defense of the judgment said that there is a reason that this judgment is valid, even if the ground that we challenged it on in the petition should be viewed as being limited to expectation of privacy, and that is that there were property interests at stake here which were affected.
That... if that's an independent ground in support of the judgment, then we're entitled to respond to their claim with respect to an independent--
Unknown Speaker: Well, does the Government take the position that the ownership of a car does not give the owner a right to challenge the seizure of the car?
Mr. Bryson: --Your Honor, we... the answer is yes and no.
We think that the ownership of the car--
Unknown Speaker: Yes and no.
Mr. Bryson: --Yes.
The first... the yes part is that we think the ownership of the car generally gives the owner enough... a right to object to a seizure of the car which provides the owner--
Unknown Speaker: But do you deny that a stop is a seizure?
Mr. Bryson: --This particular stop was a seizure, but it did not affect the ownership interests--
Unknown Speaker: But was it a seizure of the car?
Mr. Bryson: --It was a seizure of the car.
It affected the interests of--
Unknown Speaker: But the owner doesn't have standing to challenge it because it didn't hurt him right at the time, is that the point?
Mr. Bryson: --Exactly.
It did not... and when I say hurt, what I mean is, it did not affect any of his property interests in the car, because the only thing that was at issue there was the interference with Arciniega's right to continue down the highway.
Arciniega was in control of the car.
The stop affected control.
It didn't affect a proprietary interest in the car, so yes, generally an owner of a car has a right to object to a procedure... to a seizure, but in this case this kind of procedure did not implicate the owner--
Unknown Speaker: Suppose the Government had loaned... suppose the car had been loaned for a week, and the Government seized it and then kept it for only 6 days, couldn't you say the same thing?
Mr. Bryson: --Well, if it had been loaned for a week... suppose it's a rental car, to make it--
Unknown Speaker: Right.
Mr. Bryson: --And the rental agreement was that after 7 days it should be returned, and in fact the car was returned on the seventh day... the Government had held it for 6 days in between... we would say that the effect on the person who rented the car, the renter of the car, the rental company, was that their property interests in the car were not affected.
Now, this case involves much less, of course, than a 6-day seizure, but the principle is the same.
The principle is that the interests of the owners in getting their car back and in being able to enjoy the use of the car during the time that they intended to use it, which was when it came back, was not affected.
Keep in mind that this was... that the Simpsons gave this car to Arciniega for a couple of days.
Unknown Speaker: What about their privacy interest in the car?
I mean, what if they had confidential information in the glove compartment and they're willing to trust Mr. Padilla with that, but they're not particularly willing to trust the Government with it?
Mr. Bryson: Well, if there's a privacy interest, then the privacy interest is... and they have retained a privacy interest in the car, then they may well have a basis for objecting to the search of the car but not to the seizure.
Unknown Speaker: But possession and privacy go together.
I mean, the possessory interest is a substitute for privacy.
It's the main way by which privacy is protected in goods.
Mr. Bryson: Your Honor, where, as in this case, all that happens is that you hold the goods and you don't conduct a search at all... in this case there was a consent search, which waived, in effect, the privacy interests of the Simpsons in the trunk, whatever those might have been, but if all that would happen in this case is that there had been a stop, and let's say Arciniega had made a confession which implicated the Simpsons, then no privacy interest in the car would have been implicated.
The car wouldn't have been held.
But what really is at issue with respect to the Simpsons is, they have given over control, the use of the car, for a period of several days to this man, and that man's personal right to control the car which has been ceded to him by the Simpsons is what was affected by the stop, plus his personal right as an individual to travel on the highway without being interfered with.
There is no interference with the ultimate... let's called a remainder interest, or whatever you want to call it, in the property of the Simpsons.
Now, they may have a separate privacy interest which may be implicated, but if, as we submit, they have a privacy interest, say in the trunk, and the district court found that they did, that privacy interest could be in effect waived by Arciniega's consenting to a search of the trunk, which we think it's manifestly the case that he had a right to--
Unknown Speaker: Well, Mr. Bryson, don't our cases generally in the Fourth Amendment area say that the privacy interest is protected against seizures and the property... the privacy is to protect against searches, and the privacy interest is... the property interest is to protect it against seizures?
Mr. Bryson: --Yes, that's right, and here, we... there was a seizure which affected the property interest of, control of the car of Arciniega, temporary possessory interest, but he doesn't... he's not a defendant, so he would have standing to object, but the privacy concerns which are with regard to the search of the trunk of the car are at minimum waived by Arciniega's agreement to allow the search of the trunk.
Unknown Speaker: Well, Mr. Bryson, I thought that the respondents say that there wasn't consent here.
Was that issue dealt with below?
Mr. Bryson: No.
No, Your Honor, the district court did not--
Unknown Speaker: So we're not in a position--
Mr. Bryson: --No.
Unknown Speaker: --To answer that.
Mr. Bryson: That's right.
The only thing--
Unknown Speaker: I mean, you would acknowledge that based on the district court's finding that the Simpsons had a privacy interest in the trunk, and the question of consent is open.
Mr. Bryson: --I think the question of consent is open, Your Honor.
They may... if this case is remanded they may say that there was an invalid consent, and if they both have continuing privacy interest in the trunk, and we had an invalid consent, then we would have a problem, because then--
Unknown Speaker: Well, then do you say that we have to remand in this case?
Is that the best result you can hope for?
Mr. Bryson: --Well, I think that you're going to have to remand... assuming we win the major submission in the case, you will have to remand for a disposition of the remaining claims and ultimately for trial, and I think... there has not been a final disposition by the court of appeals, for example, of the consent issue, and there's a finding by--
Unknown Speaker: What difference does it make if... to the Simpsons' interest if Mr. Arciniega's consent is valid or not?
Mr. Bryson: --This is this difference, I think: if the Simpsons did not retain any privacy interest, even a joint privacy interest with Arciniega in the trunk of the car... let's... suppose this had been a search of the front seat, where the officer had stopped Arciniega and just looked in the front seat and there was all the cocaine, we would argue, and we would be right, that the Simpsons just had no continuing privacy interest in the front seat of the car.
So in that setting it wouldn't matter whether Arciniega's consent was obtained voluntarily or involuntarily, since the Simpsons would have no continuing privacy rights, but the argument that the Simpsons made below, and the argument that was accepted by the district court, was that they continued to have a privacy interest in the trunk.
Unknown Speaker: Well, do you think--
Mr. Bryson: --If that's true--
Unknown Speaker: --Go ahead.
Mr. Bryson: --We don't think that's right, but we do have a district court finding to that effect.
Now, if that's true, then the way we get the evidence introduced is by showing that the consent was valid on the part of Arciniega.
Arciniega in effect did what the Matlock case indicates could be done in this situation.
Unknown Speaker: Well, my suggestion is that even if the consent is invalid as to Arciniega, the Simpsons get no benefit from that.
Mr. Bryson: They don't if they did not retain a privacy interest in the trunk of the car.
On the other hand, if they did--
Unknown Speaker: Okay, now tell me about how we go about determining whether they retain a privacy interest in the right of the car.
Do we have to look at the terms of the bailment--
Mr. Bryson: --Well, Your Honor, I think you have to look at--
Unknown Speaker: --Or at the criminal enterprise, as the Ninth Circuit suggested?
Mr. Bryson: --You would have to look at such things as the terms of the bailment, you would have to look at whether in the view of--
Unknown Speaker: Well, how is the officer to know this when he makes his stop?
Mr. Bryson: --Well, the officer is not going to know it, and typically the officer will be in a position of having apparent authority to go into the trunk, so even if the person who's driving the car--
Unknown Speaker: The driver would have.
Mr. Bryson: --Doesn't have actual authority, he may have apparent authority.
But the key here is that if there is a retained privacy interest in the trunk, and the officers coerce the individual into giving up his right to go into the trunk and force... in effect, they do the same thing as if they had simply said, out of the way, we're going to jimmy up the trunk and they open it with a crowbar, then they have violated privacy interests on the part of the Simpsons.
Unknown Speaker: Well, I don't understand how an officer is supposed to know whether someone else has retained privacy interests in the trunk.
Do you just take your chances when you open a trunk with someone's consent?
Mr. Bryson: --If he had... if he's in a situation where it's reasonable for the officer to assume that somebody who's driving a car has authority to consent to the search of the trunk, then the officer's acted reasonably if he obtains the consent in a valid fashion.
Unknown Speaker: Is it reasonable for officers to do that if they know someone else owns the car?
Mr. Bryson: Typically it will be, yes, because they will assume that somebody who is driving a car and is in the middle of the highway has authority to go into the trunk, particularly if he's been given the keys, as was the case here.
Arciniega had the key to the trunk--
Unknown Speaker: Well then, why don't you win?
Why do we have to remand?
Mr. Bryson: --Well, we think we do win if this Court wants to make a finding with respect to the validity of the consent.
It can do it, but I... that is typically the kind of thing that I would think would be made by the district court in the first instance.
We're not saying that you can't reach that issue, but I'm suggesting--
Unknown Speaker: Well, I'm confused as to how we determine if someone... some third-person owner has some retained privacy interest in the trunk.
Mr. Bryson: --Well--
Unknown Speaker: It seems to me there's a question of whether or not an officer acts reasonably, and whether this is a legitimate interest that we're prepared to recognize or not.
Mr. Bryson: --Well, if the officer--
Unknown Speaker: Some third... we can assume that most cars riding around out there have third persons' property interest in them.
I don't think that prevents the police from stopping the car--
Mr. Bryson: --Not--
Unknown Speaker: --And asking to search it.
Mr. Bryson: --Not at all, if the police get a valid consent from the person that's driving.
The only point I'm making, and I'm not making it very clearly, I'm afraid, but the only point is that if the officers go up there and beat a consent out of Arciniega, that's not reasonable police conduct, and they are therefore not entitled to the benefit of the search, which may affect what turns out to be somebody else's privacy interest in the trunk.
On the other hand--
Unknown Speaker: But conceding that point--
Mr. Bryson: --Yes.
Unknown Speaker: --Why were you getting into the question of the authority of the driver of the car to consent to the opening of the trunk?
Mr. Bryson: Well, only because the--
Unknown Speaker: I mean, the officer, as Justice Kennedy said, has to operate on reasonable assumptions.
He can't get a whole chain of title to the car when he's--
Mr. Bryson: --Exactly.
That's why apparent authority is the question with respect to the officer's perception of Arciniega's right to open the trunk.
If the officer looks at this man who's driving down the highway and says, anybody in this situation I'm going to assume has authority to go into the trunk, that's a reasonable conclusion, and that's why we think we win on the validity of the consent.
That's why we think that if this case goes back to the district court we will prevail on the question of whether this was a valid consent, because as this Court said in Illinois v. Rodriguez, the question of reasonableness under the Fourth Amendment is the apparent authority of the consenting party to consent--
Unknown Speaker: --Well, Mr. Bryson, I thought the major point you wanted to have us decide was whether or not this joint enterprise--
Mr. Bryson: --Yes.
Unknown Speaker: --Notion is a valid one to give standing, and to decide that, I would think we could just... we would say, just forget about the ownership of the car.
We'd say, suppose Padilla owned the car.
Suppose Padilla owned the car and the same thing happened... he consented to go in... and the court of appeals would have come out exactly the same way.
They would have said, because they were all coconspirators, they all have an interest in the transportation of cocaine and that car, they have standing to object.
Mr. Bryson: That's what the court of appeals would have said, that's right.
Unknown Speaker: Yes, well--
Mr. Bryson: That's--
Unknown Speaker: --That's... is that the major point you want us to decide?
Mr. Bryson: --That is the principal issue in the case.
Unknown Speaker: And the ownership of the car certainly... perhaps we don't need to... if you want to hassle about it, maybe... maybe we could avoid even deciding the question you want, because you should lose on another ground--
Mr. Bryson: Well--
Unknown Speaker: --Which is--
Mr. Bryson: --If we--
Unknown Speaker: --But--
Mr. Bryson: --You're absolutely right, if we lose on the joint venture theory of standing, then you don't have to reach the ownership of the car or anything to do with the car.
If you hold, as the Ninth Circuit held in this case and has held elsewhere, that all you need is a sort of supervisory and control role in the conspiracy--
Unknown Speaker: --So it wouldn't make any difference who owned the car.
Mr. Bryson: --That's exactly right, it wouldn't make any difference.
What I'm arguing is, if you reject that broad argument, and we hope you do, then you have to address, we think you should address, the questions that are raised by--
Unknown Speaker: Well, yes, but what if you... if we say that... if you lose on that major question, why, the case is over.
Mr. Bryson: --Exactly.
We're... if you rule that the Ninth Circuit's joint venture exception, if we'll call it... we'll call it that, is correct, and that all you need is to have supervisory control--
Unknown Speaker: So your... the case is over, and you lose.
Mr. Bryson: --We lose, and you don't have to--
Unknown Speaker: But if you win on that point, the case isn't over at all.
Mr. Bryson: --Exactly.
Unknown Speaker: Now, Mr. Simpson--
--Except for that--
Oh, I'm sorry.
If you win on that point, though, you have won as to the Padillas.
Mr. Bryson: We have won as to the Padillas except for--
Unknown Speaker: And arguably, since you didn't raise the question as to the others, maybe we should dismiss that part of the case as improperly granted.
Mr. Bryson: --Well--
Unknown Speaker: Your primary argument as to the Simpsons goes to this whole ownership question, which is entirely different from what I thought we were granting when we granted this case.
Mr. Bryson: --Your Honor--
Unknown Speaker: And even your argument in your brief doesn't even talk about standing.
It talks about whether there should be suppression, which is a distinct issue whether you win on the merits.
Mr. Bryson: --Well, Your Honor, the merits, and the Court's opinion in Rakas makes the point... and we do use the term, standing, but technically the Court has said in Rakas that standing really is just a proxy for talking about the merits of whether a particular individual has had a Fourth Amendment violation of his personal rights, and so it really is a question of whether there's a violation of the particular defendant's rights.
Unknown Speaker: Mr.--
--May I go back just a second to your hypotheticals?
You went by part of it so fast.
You said that if there was a stop and the owners had standing to object to the stop and the stop's illegal, that if the cocaine were sitting in the front seat where it became... it was in plain view after the stop--
Mr. Bryson: Yes.
Unknown Speaker: --It would be clearly... there would clearly be no standing, if I understood you correctly.
Mr. Bryson: There would be no argument that the Simpsons retained a privacy interest.
Setting aside the possessory interest--
Unknown Speaker: No, because they... because it came into plain view as a result of what you've conceded was an illegal stop.
Mr. Bryson: --It came into plain view, that's true, but there's no continuing privacy interest--
Unknown Speaker: Well, but would you say that they have no standing to object to the seizure of the cocaine after their car was illegally stopped and therefore it became visible, is that your position?
Mr. Bryson: --Well, if they were driving they would have standing.
Unknown Speaker: No, no, they're not driving.
Mr. Bryson: But if they're not driving, absolutely, that's our position, Your Honor.
Our position is that if they leave cocaine in the front seat of a car, then the only Fourth Amendment event that occurs that amounts to anything is the stop of the car, and our position throughout has been the stop of the car does not violate the Simpsons' rights.
They are back in Douglas, or whatever, waiting to get their car back 2 days hence.
Unknown Speaker: And their cocaine.
Mr. Bryson: Well, they want the money.
Unknown Speaker: They want the money.
Mr. Bryson: They don't want the cocaine.
Unknown Speaker: I think you--
--Mr. Bryson, let me go back, if I may, to your argument that the Simpsons do not have any property right that was infringed, and your argument, as I understand it, is that if the Simpsons have consented, or the owner has consented to another person's having possession and the stop occurs during the period of that consented possession, that there is no property interest that the Simpsons or that the owners can assert.
But it seems to me that is simply identifying all ownership interests with simply possession at the time, and the fact is the Simpsons have not, in any way that I can see, given away their right to control as owners of the car who will have that possession, and they, in effect have said you the driver can have it.
They certainly have not said the United States Government can interfere with it, and so I don't see why the mere fact that a third party has possession with the owner's consent precludes the owner, in effect, from asserting a different ownership right.
That is to say, the power to decide who in fact will have access to that car, and who will be able to stop it.
Mr. Bryson: Well, I think that the owner could decide that if presented with the question... if Arciniega were to call back on the phone, car phone or something, to the Simpsons and say, should I let these officers take this car--
Unknown Speaker: Well, why does he have to do that?
The only thing we know is that the Simpsons let Arciniega have it.
Mr. Bryson: --That's right--
Unknown Speaker: There's no implication there that they are consenting to or giving permission to anyone else to perform any act which interferes with the automobile.
Mr. Bryson: --Well, but they let him have it for a couple of days, and our point is that when there is an interference with his exercise of control, which is what they have ceded.
They've not ceded--
Unknown Speaker: Well, no, they haven't ceded all exercise of control.
They've ceded the control of the car to him to the extent that it's necessary for him to control... to have control to drive the car, but they haven't ceded anything else.
Mr. Bryson: --Well, they have, we think, ceded the right to, for example, stop the car at some point on the highway and get some lunch, they've ceded--
Unknown Speaker: Sure, because that's a normal incident of the possession which they have given to him, but they haven't, certainly, ceded anything to a third party, which is what we're concerned with here.
Mr. Bryson: --Well, the only thing that Arciniega... the only way in which Arciniega... Arciniega was affected.
The only way the Simpsons was affected... as far as they were concerned, no event occurred that affected their continuing enjoyment of the use of the property--
Unknown Speaker: Simply... the only... it did not affect their possession at the moment because they did not have possession.
That is the only thing you can say.
Mr. Bryson: --Well, that's true, but what our point is is that their right, their property right in the car that they have given to somebody else is limited, we think, to the--
Unknown Speaker: Well, Mr. Bryson, what if the car had... what if Arciniega had stolen the car and was carrying drugs in it.
Now, could the... and it had drugs in the trunk that Arciniega didn't put there, the owner did.
Now, could the owner complain there?
Would the owner have standing if there were an illegal traffic stop?
Mr. Bryson: --If there were a traffic stop, I don't think so, no, because the owner--
Unknown Speaker: An illegal stop.
Mr. Bryson: --An illegal traffic stop.
No, because the owner, again... the owner's property--
Unknown Speaker: The owner hasn't consented to anything.
Mr. Bryson: --No, the owner in that case hasn't consented to anything, but also a 5-minute stop doesn't constitute a meaningful interference with the owner's possessory rights.
There is already--
Unknown Speaker: Does it have to be possessory rights?
There's no seizure unless my possessory rights... so if I lease property to someone, the Government can walk in and seize that property and no right of mine has been affected?
There's been no seizure of property as far as I'm concerned.
Mr. Bryson: --Well, if you lease the property to somebody for 5 days and the Government comes in--
Unknown Speaker: 5 years.
The Government comes in and takes it and says, I'm sorry, I know you leased it to X, but we're going to take it over... you know, it's a problem for X, it's no problem for you... and I say, but I didn't lease it to the United States, I leased it to X, get out of here, is what I would say.
You haven't seized my property.
Mr. Bryson: --Well, you... there has been a seizure of property, but your rights are not affected.
Unknown Speaker: My... but my right to property includes the right to exclude.
Doesn't it include the right to exclude?
Mr. Bryson: Well, but you have, we think, waived in effect, unless you've put some kind of specific prohibition against any--
Unknown Speaker: If I choose not to exclude one person, I waive the right to exclude the rest of the world.
Mr. Bryson: --At least in a case like this, when Arciniega, so far as the record reflects, has not given any--
Unknown Speaker: Because you say so, in a case like this, but I don't know why a case like this is different from any other case.
Mr. Bryson: --If there is a... you could have a prohibition against some further disposition.
Unknown Speaker: Mr. Bryson, I see the white light's on.
I'd certainly like to hear about the Ninth Circuit's theory.
It seems to me that once you say that it depends upon the terms of the bail that was given, that the Ninth Circuit's theory begins to have some plausibility.
Why is that not so?
Mr. Bryson: Well, the reason it's not so, Your Honor is because the Ninth Circuit in our view focused on the wrong thing.
They focused on the role of the defendants in the commission of the crime.
They should have focused on whether the defendant's particular Fourth Amendment interests were violated.
Unknown Speaker: Suppose the two are interrelated?
Mr. Bryson: Well, we don't think... well, if they're interrelated, we focus on the way in which the Fourth Amendment right was affected.
In a case like this, what the Ninth Circuit is saying in effect is that Mr. Big, whether it's the head of the whole conspiracy who's back in Mexico who's saying, I want those drugs to get to Los Angeles and I want the money back, has standing just as much as any other defendant in this case.
Because the Ninth Circuit, under the Ninth Circuit's theory if you have supervisory authority and control over the transaction as a whole, it doesn't matter whether somebody invades your property or somebody conducts a search of premises in which you have an expectation of privacy.
If you have neither of those... you have neither possessory or ownership interests in the property nor privacy interests, you still have standing under the Ninth Circuit's theory because you have control of the transaction.
Unknown Speaker: Well, I know, but the Ninth Circuit says because you have control and you have a joint enterprise, you have a joint interest in the transportation of that cocaine by that car.
Mr. Bryson: Well, that's what they said, and--
Unknown Speaker: Well, I know.
Mr. Bryson: --Of course, you could say that with respect to the... to Mr. Big, back in Mexico.
Unknown Speaker: And that's the issue of whether they're right on that.
Mr. Bryson: Well, we think they're clearly not--
Unknown Speaker: And they would still... as I said before, I think I said if Padilla owned the car, but assume the driver of the car owned the car, gave consent, the Ninth Circuit would have come out exactly the same way, because the members of the joint enterprise have an interest in the car and an interest in the cocaine.
Mr. Bryson: --Well, they concluded that that interest was based on their criminal joint venture, but that would be applicable to everyone down to and including the principal--
Unknown Speaker: I know.
Mr. Bryson: --In the enterprise, and we think that just departs by leagues from this Court's focus.
Unknown Speaker: Yes, well, that's the issue.
That's the major issue.
Mr. Bryson: That's the major issue, yes.
I'd like... thank you.
Unknown Speaker: Thank you, Mr. Bryson.
Mr. Nash, we'll hear from you.
Argument of Walter B. Nash, III
Mr. Nash: Thank you, Mr. Chief Justice, and may it please the Court:
I think it is important at the outset to recognize that this is not a search case, but a seizure case.
District Judge Billby's ruling in this case was limited to the invalid initial seizure of the car.
He never reached the merits of the search questions, except insofar as to find that they were tainted by that invalid initial seizure of the car, but the merits of the consent, the merits of the trunk search and all of the other activities that occurred after the invalid seizure, are not at issue here, they were not at issue in the Ninth Circuit--
Unknown Speaker: Well, how does a policeman know that he's either searching or seizing when he stops to question a suspect who's driving an automobile?
Mr. Nash: --He always--
Unknown Speaker: There's obviously been a detention of the property.
Does that automatically mean there's a seizure?
Mr. Nash: --Yes, sir.
Under prior decisions of this Court, and Delaware v. Prouse is perhaps the most cited one, the stopping of a vehicle even for merely checking a driver's license and registration is most definitely a seizure of the automobile, its driver, and all of the contents.
Unknown Speaker: Well, you say the district judge just focused on the illegal stop of the car and that everything else was illegal after that.
The question is, who has the right to question the illegal stop?
Mr. Nash: Exactly.
That is the--
Unknown Speaker: Well, that's the question, so--
Mr. Nash: --That's the issue.
That's the issue before the Court.
Unknown Speaker: --And if no one else except the driver had standing to challenge the stop, your clients should lose the case.
Mr. Nash: Under that hypothetical, that's correct.
Unknown Speaker: Right.
Mr. Nash: But both Mr. Padilla and Mr. and Mrs. Simpson had a possessory or property right in both the car and its contents.
Unknown Speaker: Well, suppose the stop were lawful?
Mr. Nash: If the initial stop were lawful--
Unknown Speaker: And so then--
Mr. Nash: --Then the issue as to the seizure of the car would not be subject to further argument.
The issue would then turn to--
Unknown Speaker: --Well, then it's not just a question of seizure.
Mr. Nash: --Well, the way the question is postured to this Court, it is, because the only issue that was ruled on in the district court and in the Ninth Circuit was the seizure of the car, not the consent, not the other things, except insofar as they were tainted.
There has been no hearing on the merits of that consent, about the trunk search, or the other issues.
District Judge Billby was very clear in saying, I will not reach those things because the issue of the invalid initial seizure is a case-dispositive ruling.
Under Soldal, the interest that needs to be--
Unknown Speaker: But it seems to me, first things first, because you've conceded that if the stop were lawful and the consent were lawful, then there would be no question of seizure--
Mr. Nash: --Under that--
Unknown Speaker: --So I question the district court's and the Ninth Circuit's approach.
Mr. Nash: --Well, we always have to begin with the first level of intrusion, and the first level of intrusion is almost always the stopping of the vehicle or the person.
If, indeed, that level of intrusion is deemed to be valid, we then turn to the other intrusions... the search, a subsequent seizure if, indeed, there's one after the car's first stop.
Unknown Speaker: If you're right about that, Mr. Nash, why did the Ninth Circuit reverse as to Strubbe?
I mean, they decided the case finally as to him, didn't they?
Mr. Nash: Because what the Ninth Circuit said was Mr. Strubbe had not claimed and could never show any possessory interest in either the contraband or in the vehicle, nor could he show, or did he attempt to show, any right to privacy.
What the Ninth Circuit has said... and I would take issue with Government's counsel's characterization of the joint venture rule, which I don't think you should reach in this case, but--
Unknown Speaker: Well, the way--
Mr. Nash: --The rule is not mere membership in a joint venture, ipso facto, confers standing on a litigant.
What it says, simply, is that a court will quite properly analyze the relationships of the parties to each other to the property seized or the property or place that was searched.
Unknown Speaker: --That isn't what the court of appeals said in its opinion, as I read it.
It apparently has a well-developed doctrine of joint venture in a criminal undertaking, and it referred to joint venture, and it cited previous cases, so I think it's very difficult to say that the Ninth Circuit didn't decide the case on that ground.
Perhaps it should have decided it on another ground, and perhaps the two are interrelated, but the Ninth Circuit opinion just abounds with the words, joint venture.
Mr. Nash: It does, and let me suggest to the Court two reasons why it does, and first of all, it is clear that the Ninth Circuit does not go off solely on an expectation of privacy.
The decision is also replete with citations to the possessory interest and property rights of Mr. and Mrs. Simpson and Mr. Padilla, not only in the car, but also in the contraband, in the contents of the car.
The Ninth Circuit does talk about right to privacy for two reasons.
Number 1, in the appeal in the Ninth Circuit, the only issue raised by the Government in that case was the right to privacy.
They never challenged the possessory interest of the property right allegations in the district court.
Point number 2 is, I think it is fair to say that the Ninth Circuit, perhaps like the Seventh Circuit before Soldal, improperly blended a right-to-privacy analysis and the consideration of a seizure.
In Jacobsen, this Court recognized that the issue of seizure turns on property rights, not right to privacy, and that was made even more clear by Justice White's recent opinion in Soldal.
A right-to-privacy analysis simply has no place in a seizure case.
It applies in a search case.
Unknown Speaker: Mr. Nash, the question presented in the Government's petition for certiorari plainly raises the joint venture issue and nothing else, as far as I'm concerned--
Mr. Nash: That's correct.
Unknown Speaker: --Whether membership in a joint venture to transport drugs gives coconspirators a legitimate expectation of privacy.
Your opposition to the petition for certiorari confronts that joint venture theory head on.
I do not read it as saying there's no joint venture issue in this case.
Mr. Nash: It does two things.
Number 1, the briefs of counsel do very definitely say this is a seizure, and under Soldal, which was decided just days--
Unknown Speaker: I'm not talking about the briefs of counsel.
I'm talking about your opposition.
Did you make the argument in your opposition to the petition for certiorari that you're now making, namely that the question presented is not in this case?
Mr. Nash: --Mr. Padilla's opposition did not squarely raise it.
Mr. Simpson's did raise... his prose opposition did in fact raise the issue of property rights as being different from a right to privacy.
Unknown Speaker: I think you can answer this question yes or no.
Did anybody raise the issue that the question presented is not in the case?
Not that there's another issue in the case, but that this issue is not in the case, which is what you're now telling us.
Mr. Nash: --Mr. Simpson did in his opposition.
Unknown Speaker: Where did he do that?
Mr. Nash: His counsel has indicated to me that it's found at page 10 of his prose opposition to the petition for writ of certiorari.
Also, I would suggest to you, Justice Scalia, that if the Seventh Circuit was mistaken and confused in its proper application of whether or not right-to-privacy analysis applied in the seizure case, which it was, and the decision there that was clarified by this Court in Soldal, if they were mistaken, then both the Ninth Circuit and perhaps counsel that were involved in the application of that test could also have been mistaken.
Unknown Speaker: Would you show me where on page 10?
I have page 10, and I don't see anything that says the issue is not in the case.
Maybe I have the wrong page 10, but I don't see it.
I mean, it's an important issue.
Mr. Nash: I'm looking at--
Unknown Speaker: I thought that's what we were going to talk about today, and you tell--
Mr. Nash: --I'm looking at page 10.
Unknown Speaker: --Yes.
Mr. Nash: Page 10, which starts... the paragraph beginning at line 24,
"In addition to erroneously overlooking the important difference between privacy interest and possessory interest. "
and it goes on to cite Jacobsen and talk about that.
Unknown Speaker: Yes.
Mr. Nash: That is the square issue that we're talking about.
Unknown Speaker: No, no.
The issue I'm talking about is a contention which you have made, not that there is an additional issue, but that this issue is not in the case, that the issue on which we granted certiorari is not in the case.
That's what you've told us.
You've said that issue is not here.
Mr. Nash: If this is a seizure case--
Unknown Speaker: Would you show me where that appears in anybody's brief, or otherwise say, as far as you know, it does not appear in anybody's opposition?
Mr. Nash: --To say that, in the opposition of Mr. Simpson to the petition for writ of certiorari, that the Government overlooks the difference between a seizure which doesn't involve a right to privacy, that is the issue.
That is the point that we are raising.
Unknown Speaker: That's a quite different point.
You're saying there's an additional issue here.
There's a difference between the joint venture issue and the possession issue.
Mr. Nash: --Yes.
Unknown Speaker: We understand that.
Mr. Nash: Yes.
Unknown Speaker: But that's not the point you were making.
You were making the point that the joint venture issue is not in the case.
Now, do you still make that point?
Mr. Nash: What I am saying is that--
Unknown Speaker: If you could answer that yes or no, Mr. Nash.
Mr. Nash: --Yes, sir, it is in the case.
Unknown Speaker: Okay, it is in the case.
Mr. Nash: It's raised in the case.
It ought not to be, that is my argument.
If this is in fact a seizure case, then under Soldal a right-to-privacy analysis does not apply, and the question that the Government sought certiorari on is what role, if any, should a joint venture standing issue play in determining right to privacy?
Under Soldal and under Jacobsen, if this is a seizure case, right-to-privacy analysis doesn't apply.
We are claiming a possessory interest or proprietary interest in both the car and the contraband under two separate theories.
Number 1... excuse me, under two separate theories, one of which is car, and one is the contents.
The Government's claim in this Court is that an absent owner can never properly claim a possessory interest in an automobile, and that simply has not been the law in this Court or in any other.
Unknown Speaker: Assume we agree with the Government that this joint enterprise theory doesn't give standing to the members of the conspiracy without more?
Then you would still suggest to us that we should affirm on another ground.
Mr. Nash: Yes, sir.
Unknown Speaker: Namely... but if we agree with the Government on that, it seems to... on their submission about the joint enterprise, it seems to me the only people who might have standing to complain would be the Simpsons--
Mr. Nash: No, sir.
Unknown Speaker: --Who own the car.
Mr. Nash: No, sir, because that overlooks the interest in a possessory right to the contraband.
Further, Mr. Padilla at the district court level claimed a bailment-type interest as well in the vehicle, so the issue of ownership of the car strictly pivots around Mr. and Mrs. Simpson, but in the district court Mr. Padilla claimed a bailment interest in the car.
It was he to whom the car was entrusted to transport the cocaine on the next leg of its journey.
Unknown Speaker: Well, let's assume that the driver of the car owned the car, and let's assume that the consent was valid to open the trunk.
Now, the possessory right to that cocaine isn't going to help them very much, because it's just a plain view seizure, then.
Mr. Nash: That's correct.
Unknown Speaker: And--
Mr. Nash: If under that hypothetical, which is not this case, you would be correct.
Unknown Speaker: --Well, that would be this case if we say that the Simpsons don't have... just because of their ownership don't have standing to object at all.
Mr. Nash: Under that hypothetical, that would be correct.
Unknown Speaker: Right.
Mr. Nash: But the Simpsons are clearly the owner of the car.
In your hypothetical the owner of the car was driving it.
Mr. and Mrs. Simpson clearly have the ability and the standing to challenge the invalidity of the initial seizure of that car.
Unknown Speaker: Well--
Mr. Nash: Just--
Unknown Speaker: --If we don't agree with that, why the seizure of the cocaine is not challengeable.
Mr. Nash: --And assuming the validity of the consent, which is an issue that has to get, perhaps, sent back to the district court.
Unknown Speaker: Suppose that Arciniega was going 90 miles an hour, and he was stopped... a valid stop, correct?
Mr. Nash: Yes, sir.
Unknown Speaker: And the police said, may we search the trunk of your car, and he said, yes.
Is that a valid search?
Mr. Nash: If we assume also the validity of the consent, yes, it is.
Unknown Speaker: And at that point, isn't the case over and the Simpsons lose?
Mr. Nash: Yes.
If we assume--
Unknown Speaker: Why, then, isn't this a search case?
Mr. Nash: --Because this case, number 1, involves a search that is, by the Government's own tacit admission by not challenging it on appeal, invalid.
The district judge found that there is absolutely no objective, articulable fact to support the stop.
That is the first difference.
Unknown Speaker: What standing do the Simpsons have to raise the violations of Arciniega's rights--
Mr. Nash: Because it was--
Unknown Speaker: --When he's been invalidly stopped?
Mr. Nash: --Because it was their car, sir, and they also had a possessory interest in the contraband.
Clearly, if one has a possessory interest in a vehicle, even though one happens to be absent at the time of the stop, you are not deprived of your ability to contest the Fourth Amendment violation.
Unknown Speaker: Don't our cases say that you can't have a legitimate possessory interest in contraband?
Mr. Nash: They do not for standing purposes.
They do for forfeiture, or for other seizure purposes for purposes of forfeiture, but not in standing.
That argument has been squarely rejected by this Court every time it's been raised.
Unknown Speaker: Which of our cases is that?
Mr. Nash: Trupiano was one of the ones that's cited in the briefs.
It says it makes no difference if the object seized is contraband or not, there is still a proper Fourth Amendment interest.
Unknown Speaker: Trupiano was largely overruled by Rabinowitz.
Mr. Nash: But not squarely on that point.
There is no case that the Government has cited to this Court that says in a search and seizure context that one loses standing to raise a possessory interest or right to privacy simply because contraband is involved.
Unknown Speaker: Do you have any case stronger than what remains of Trupiano to support your position?
You say the Government has nothing to support its position.
Mr. Nash: Jeffers also says the same thing.
Unknown Speaker: Jeffers, okay.
Of course, you have a more difficult problem, don't you, than simply... at least on behalf of the Simpsons... than simply asserting what you described as a possessory interest, because you've got to... they would have to base their claim there on constructive possession.
They did not, in fact, have possession of the drugs, and it's... I would have thought that the theory on which you get constructive possession, one element of which is the right to control the dominion over something, the right to dispose of it, is essentially a theory of property or ownership, and they do not have any ownership in contraband.
Mr. Nash: But they could have a possessory interest in it.
Unknown Speaker: No, but that begs the question.
They don't have a possessory interest in the sense of having present possession.
The only possessory interest they can have is a constructive possessory interest, and if a constructive possessory interest implies title or ownership, which in fact is precluded in contraband, it may be that as to contraband the only kind of possessory interest that can give standing is a present possessory interest as opposed to a constructive one, which is what the Simpsons have here.
Mr. Nash: But possession does not require ownership, it merely requires a measure of control and intent to control.
Unknown Speaker: Well, and what's... where do you get the power to control something which you do not have in your physical possession if you do not, in fact, own it?
Mr. Nash: By merely possessing it.
Unknown Speaker: But they're not... no, but that begs the question.
That's just circular.
You admit that they don't have any present physical possession, right?
Mr. Nash: Yes, sir.
Unknown Speaker: Okay.
They have what we traditionally refer to as constructive possession, if anything, right?
Mr. Nash: Yes, sir.
Unknown Speaker: Isn't it an element of constructive possession that you must have a... some sort of right to exercise dominion and control, even though it is not in your presence?
Mr. Nash: Yes, sir.
Unknown Speaker: And do we not usually find that right to exercise dominion control in title or property to the goods or to the object in question?
Mr. Nash: It can be found from title.
It is not necessarily limited--
Unknown Speaker: Where else do you get it?
Mr. Nash: --You can get it from someone bailing it to you.
You can get it from a temporary bailment interest.
It does not require any type of ownership, and I would--
Unknown Speaker: Well, it seems to me that that just pushes the difficulty further off, because the bailor doesn't have any possession at that point--
Mr. Nash: --Well, the bailor--
Unknown Speaker: --And if the bailor's only possession is constructive, then you've got the same problem with the bailor that you have if you deal with people in the Simpsons' position right now.
It just kind of adds another layer of constructive possession to the analysis.
Mr. Nash: --If this Court chooses to find that one can never, as a matter of law, have a possessory interest in contraband, then your hypothetical is correct.
Unknown Speaker: All we have to find, it seems to me, is that you may not have title or ownership in contraband, and I thought that's where we were at the present time.
Mr. Nash: Well, one can possess something, my argument is, without necessary owning it.
Unknown Speaker: Well, I agree with you.
Mr. Nash: The Government urges that an absentee owner can never claim any type of proper possessory interest, and with regard to the vehicle and with the contraband, once we assume the correctness of my position on the possession versus ownership issue, it's simply not valid.
In Jacobsen, this Court found that an individual had a cognizable Fourth Amendment interest that was affected by a seizure even though they clearly were not present at the time the package was seized.
In Place, the same kind of situation arose.
The precise seizure in Place that was the subject of this Court's inquiry occurred at a time when Mr. Place had been allowed to leave the airport, was not present, and was not involved in any of those activities.
Unknown Speaker: In both of those cases, one was Federal Express, the other an airline.
It was open and obviously clear that this was a bailment.
Mr. Nash: That's clear, and that's--
Unknown Speaker: But--
Mr. Nash: --That is exactly this case, with even more control exerted over the bailee by the bailor than was found in the Federal Express example.
Unknown Speaker: --So are you saying that any time the police stop an automobile and find that it's registered to a different owner that there can be no consent given by the driver?
Mr. Nash: Absolutely not, sir.
We are not saying that Mr. Arciniega's consent, assuming, number 1 the validity of the initial seizure of the car, and number 2 assuming the, on its merits, if you will, validity of the consent, is not binding on anyone else.
It would be.
It would be binding on everyone else who claimed an ownership or possessory interest in the car, but the vice of your hypothetical is that it assumes two facts that are not in this case, one a finding of validity of the initial seizure, number 2, some type of ruling on the merits in favor of the Government in the issue of consent, neither of which exist in this case.
But clearly, if we assume those two things, the person who is driving the car, who is properly empowered to drive it, can issue a consent under this Court's prior decisions that is binding on anyone else.
That is not at issue here.
The point that I was making that the prior case law of this Court clearly establishes that one may be absent and still have the right to complain about a seizure.
The issue of absence clearly more appropriately affects the issue of right to privacy.
Simply put, if I have an interest in property and someone trespasses on that property, whether or not I know about it or I am present, I still have an interest that has been offended, an interest that would give me a right to complain about that, and it is no different when one considers standing.
The Government makes much to do in the written briefs filed in this case concerning the issue of minimal intrusion versus more than minimal intrusion.
Traditionally, this Court has analyzed the issue of minimal intrusion versus more than minimal intrusion as to the level of finding that the Government has to make, the kind of showing they have to make to justify the initial seizure.
If it is merely a minimal intrusion and counterplayed against a strong prevailing Governmental interest, then the kind of showing the Government has to make is merely reasonable suspicion.
If it is more than a minimal intrusion, probable cause is required.
What the Government seeks to do here is bootstrap that argument to the next level, and what they seek to do is say that in the case of a minimal intrusion no articulable objective facts need be shown, not even reasonable suspicion.
That really is the thrust of their argument here.
It is important to recognize that in this case the record is very clear and unequivocal that there was no fact, no specific articulable fact, that could support the initial detention of the car in this case, so the Government wants to take the minimal cases to the next level, which, I would submit, is simply not justified on the facts of this case or any prior precedent in this Court.
If we look at the issue of whether or not this is a case limited to a seizure, then the joint venture rule as it determines one's right to privacy has no place in the analysis, and what the Ninth Circuit may have done is the same thing that the Seventh Circuit did in Soldal.
It has improperly considered one's right to privacy in determining the propriety of a seizure rather than a search.
This case is a seizure case, and hopefully Soldal, as it did in the Seventh Circuit, will clear up this issue and provide guidance to counsel and courts that the proper measure of inquiry is not right to privacy but is, instead, property rights.
This is a seizure case.
If the Court has no other questions, I thank the Court.
Chief Justice Rehnquist: Thank you, Mr. Nash.
The case is submitted.