WAYNE E. BARNES, PETITIONER V. UNITED STATES OF AMERICA

   No. 87-882

   In the Supreme Court of the United States

   October Term, 1987

   On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Eleventh Circuit

   Memorandum for the United States in Opposition

   Petitioner contends that the district court committed plain error
by admitting his custodial confession into evidence and that, in any
event, his confession was not corroborated by independent, admissible
evidence.

   1. Following a bench trial in the United States District Court for
the Southern District of Alabama, petitioner was convicted on one
count of possessing marijuana with intent to distribute it, in
violation of 21 U.S.C. 841(a)(1), and one count of conspiring to do
so, in violation of 21 U.S.C. 846.  He was sentenced to 90 days'
imprisonment, a consecutive five-year term of probation, and a $1,000
fine.  He was also ordered to perform 300 hours of community service.

   a. On the morning of May 10, 1985, in Mobile, Alabama, DEA Agent
Gary Carter observed two vehicles with Texas license plates parked
beside each other in a restaurant parking lot.  One of the vehicles
was a pickup truck with an enclosure over the truck bed;  the other
was a late-model Chrysler.  Both vehicles were equipped with two-way
radios.  Several men, including petitioner, were standing around the
truck, and another man was sitting in the driver's seat of the
Chrysler (Pet. App. A1-A2).

   Aware from his 19 years' experience with the DEA that Texas is a
major source of controlled substances in Mobile, Agent Carter stopped
in a parking lot next to the restaurant and telephoned the local DEA
office to request a computer check of the Chrysler's license plate.
While Carter was on the telephone, a young man talking on the
telephone next to him hung up the receiver, walked to the pickup
truck, spoke to the men standing around it, and then turned in
Carter's direction and pointed at him.  The men quickly got into the
two vehicles and drove out of the restaurant parking lot in opposite
directions.  Pet. App. A2-A4.

   Carter returned to his vehicle and followed the pickup truck for a
short distance.  He then pulled beside it, displayed his badge, and
instructed petitioner, who was driving, to pull over.  After
petitioner and his passenger got out of the truck, Carter asked
petitioner for some identification.  Petitioner complied with the
request and remarked, "What do we do now?  Did they set us up?" Carter
detected the odor of marijuana;  petitioner then said to Carter, "You
stopped us for a reason, Gary.  You know and I know what is going on."
Carter then advised petitioner of his constitutional rights.
Petitioner acknowledged that he understood them and then remarked, "I
know you can smell the marijuana because I do." Pet. App. A4-A7.

   Five minutes later, while awaiting backup assistance, Carter
observed a Mobile police car passing and waved it down.  He placed
petitioner in the patrol car and asked whether petitioner would
consent to a search of the truck.  Petitioner consented and handed
Carter the keys to the vehicle.  In the bed of the pickup, Carter
discovered 135 pounds of marijuana and a set of scales.  Pet. App.
A7-A8.

   A few moments later, Carter's backup arrived.  That officer again
advised petitioner of his constitutional rights.  Petitioner indicated
again that he understood his rights and agreed to waive them.  He then
confessed to his participation in a scheme to transport the marijuana
from Texas to Mobile.  Later, at the local DEA office, he stated that
he and an accomplice had driven the marijuana-filled truck from Texas
the previous day and night and had agreed to deliver the marijuana in
Mobile for $5,000.  They arrived early that morning and met their
contact, who was driving a 1984 Chrysler, in the parking lot of a
local motel.  They then followed the contact to the parking lot of the
restaurant where Agent Carter first observed them.  Pet. App. A8-A9.

   b. Before trial, petitioner moved to suppress the marijuana that
was seized from his truck, alleging that Agent Carter lacked
sufficient cause to stop him.  The district court agreed, finding that
"(b)ased upon the totality of the circumstances, Special Agent Carter
did not have a particularized and objective basis for suspecting
(petitioner) of criminal activity" (Pet. App. A12).

   Petitioner did not move to exclude his statements to the
authorities, including his confession to Agent Carter's backup
officer.  The district court in any event concluded that petitioner's
confession was voluntary and that it was untainted by Agent Carter's
earlier unlawful stop (Pet. App. A14-A15).  After finding that the
confession was corroborated, inter alia, by "Agent Carter's
independent observations made prior to the stop" (id. at A16), the
trial court found petitioner guilty on both counts (id. at A17-A18).
In an unreported judgment order, the court of appeals affirmed (id. at
A20).

   2. Petitioner contends (Pet. 19-21) that despite his failure to
move to suppress his confession, the confession was inadmissible and
the trial court committed plain error by failing to grant that relief
sua sponte.

   The trial court concluded (see Pet. App. A14) -- and petitioner
does not contest -- that his confession was entirely voluntary.
Moreover, it was twice preceded by the issuance of Miranda warnings.
The district court nevertheless recognized, in reliance upon Lanier v.
South Carolina, 474 U.S. 25, 26 (1985), that "(s)tanding alone, a
voluntary confession that satisfies Fifth Amendment standards is not
sufficient to purge the taint of an illegal arrest" (Pet. App. A15).
Instead, such a confession must additionally be untainted by the
unlawful detention.  E.g., Brown v. Illinois, 422 U.S. 590, 603-604
(1975).  The district court held that the confession in this case was
not tainted.

   In Rawlings v. Kentucky, 448 U.S. 98 (1980), the Court upheld the
admission of incriminating statements that, as here, followed closely
on the heels of an assertedly unlawful detention.  There, as here,
"petitioner received Miranda warnings only moments before he made his
incriminating statements," a factor this Court deemed to be
"important, although not dispositive, in determining whether the
statements at issue were obtained by exploitation of an illegal
detention" (448 U.S. at 107).  In addition, here, as in Rawlings,
"circumstances intervened between the initial detention and the
challenged statements" that attenuated any taint from the detention
(id. at 108-109).  In Rawlings, the intervening circumstance of note
was the discovery by police of drugs in the defendant's girlfriend's
purse, prompting admissions this Court concluded were "spontaneous
reactions" and thus the product "of free will unaffected by the
initial illegality" (id. at 108 (citation omitted)).  Here,
petitioner's confession was prompted not by his detention but
primarily by the realization that Agent Carter was able to smell the
marijuana in his truck (Pet. App. A7).  As in Rawlings, moreover, the
assertedly unlawful detention in this case was neither purposefully
nor flagrantly improper (see 448 U.S. at 109-110).  And, as in
Rawlings, in this case "the relatively short period of time that
elapsed between the initiation of the detention and petitioner's
admissions" (id. at 108) did not undercut petitioner's free will.  In
Rawlings, the atmosphere existing during the period of the detention
was "congenial" (ibid.);  here, petitioner's remarks to Carter at the
time of the stop show he was not in the least intimidated by the
detention.  Thus, no compulsion to speak arose "from the circumstances
of (petitioner's) arrest." United States v. Milian-Rodriguez, 759 F.2d
1558, 1565 (11th Cir.), cert. denied, 474 U.S. 845 (1985).  The
district court did not err in admitting petitioner's confession.

   Even assuming that the admission of the confession was erroneous,
it was not plain error.  As this Court recently stated in United
States v. Young, 470 U.S. 1 (1985), "the plain-error exception * * *
is to be 'used sparingly, solely in those circumstances in which a
miscarriage of justice would otherwise result.'" 470 U.S. at 15
(quoting United States v. Frady, 456 U.S. 152, 163 n.14 (1982)).  It
is undisputed that petitioner's confession was voluntary.  There is,
moreover, no doubt as to its truthfulness.  This being so, its
admission plainly did not result in a "miscarriage of justice." Young,
470 U.S. at 15.

   3. Petitioner further asserts (Pet. 13-18) that he was convicted on
the basis of a confession that was not corroborated by any admissible
evidence.  That, he claims, runs contrary to the well-settled rule
that a conviction must rest upon firmer ground than the uncorroborated
confession of an accused.  E.g., Opper v. United States, 348 U.S. 84,
89-92 (1954);  Smith v. United States, 348 U.S. 147, 153-154 (1954).
The district court, however, correctly held that petitioner's
confession was adequately corroborated.

   This Court has recognized that "(t)he rule requiring corroboration
of confessions protects the administration of the criminal law against
errors in convictions based upon untrue confessions alone." Warszower
v. United States, 312 U.S. 342, 347 (1941).  It is, however, equally
well established that "the corroborative evidence (itself) does not
have to prove the offense beyond a reasonable doubt" (Smith, 348 U.S.
at 156).  Instead, while "(a)ll elements of the offense must be
established (either) by independent evidence or corroborated
admissions, * * * one available mode of corroboration is for the
independent evidence to bolster the confession itself and thereby
prove the offense 'through' the statements of the accused" (ibid.).
Evidence independent of a confession, in short, is sufficient to
sustain a conviction as long as it establishes the trustworthiness of
the confession.  Opper 348 U.S. at 93;  accord United States v.
Davanzo, 699 F.2d 1097, 1101 (11th Cir. 1983);  United States v.
Pennell, 737 F.2d 521, 537 (6th Cir. 1984), cert. denied, 469 U.S.
1158 (1985).

   In this case, there was evidence independent of petitioner's
confession that bolstered its truthfulness.  As the district court
noted, "Agent Carter's independent observations made prior to the stop
* * * (are) consistent with (petitioner's) confession and support() it
as a whole" (Pet. App. A16).  Petitioner confessed that he traveled
from Texas with a truck filled with marijuana, that he agreed to
deliver it to a contact in Mobile, and that he met his contact, who
drove a Chrysler, early on the morning of his arrest (id. at A8-A9).
Before stopping petitioner, Agent Carter observed him driving a pickup
truck with Texas license plates and meeting with at least one other
person in a 1984 Chrysler.  Both observations are entirely consistent
with petitioner's confession.  The trustworthiness of petitioner's
confession is further bolstered by the fact that a colleague of
petitioner's felt compelled to warn his confederates that Carter was
investigating them, prompting their immediate departure from the scene
in different directions.  In addition, as the district court noted
(id. at A16-A17), petitioner's custodial confession is corroborated by
his later, in-court admissions that he lived in Texas and owned the
truck in question, as well as his admission that he was able to smell
the hidden marijuana following his stop.  /1/ Finally, because the
corroboration requirement is designed to ensure the reliability of the
conviction, there is no need to ignore the corroborative effect of the
evidence seized from petitioner's truck, even though that evidence was
suppressed at trial.  The suppression of that evidence served the
deterrent purposes of the exclusionary rule.  The corroboration rule,
however, serves a very different purpose -- to ensure that the
confession was reliable.  The suppressed evidence provided a complete
answer to that concern.  In light of the very different purposes
served by the exclusionary rule and the corroboration requirement, it
would not have been improper for the court to rely on the suppressed
physical evidence for the limited purpose of finding petitioner's
confession to be sufficiently reliable to satisfy the corroboration
rule.

   It is therefore respectfully submitted that the petition for a writ
of certiorari should be denied.

   CHARLES FRIED

      Solicitor General

   JANUARY 1988

   /1/ Although petitioner made those statements in support of his
motion to suppress the marijuana, the district court was entitled to
consider the statements after petitioner elected not to object to
their admission into evidence at the trial on the merits.  See Simmons
v. United States, 390 U.S. 377, 394 (1968) (emphasis added) ("We * * *
hold that when a defendant testifies in support of a motion to
suppress evidence on Fourth Amendment grounds, his testimony may not
thereafter be admitted against him at trial on the issue of guilt
unless he makes no objection.").