SIDNEY R. BELL AND SCOTT J. ZIEBARTH, PETITIONERS V. UNITED STATES
OF AMERICA

   No. 89-1471

   In The Supreme Court Of The United States

   October Term, 1989

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Tenth Circuit

   Brief For The United States In Opposition

            TABLE OF CONTENTS
   Questions Presented
   Opinion below
   Jurisdiction
   Statement
      a. Events leading to Ziebarth's arrest
      b. Events leading to Bell's arrest
   Argument
   Conclusion

                             OPINION BELOW

   The opinion of the court of appeals, Pet. App. 1-70, is reported at
892 F.2d 959.

                             JURISDICTION

   The judgment of the court of appeals was entered on December 22,
1989.  The petition for a writ of certiorari was filed on March 19,
1990.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                          QUESTIONS PRESENTED

   1. Whether the initial encounter between law enforcement officers
and petitioners was a "seizure" for Fourth Amendment purposes because
the officers suspected petitioners of having committed a crime.

   2. Whether the detention of petitioner Ziebarth at Salt Lake
International Airport for questioning, and of petitioner Bell's
package for inspection by a narcotics-detection dog, was supported by
reasonable suspicion that petitioners were engaged in narcotics
trafficking.

                               STATEMENT

   Following a bench trial in the United States District Court for the
District of Utah, petitioner Ziebarth was convicted of possession of
cocaine with intent to distribute it, in violation of 21 U.S.C.
841(a)(1), and petitioner Bell was convicted of attempted possession
of cocaine with intent to distribute it, in violation of the same
provision.  Petitioner Ziebarth was sentenced to 15 months'
imprisonment.  Petitioner Bell was sentenced to five years'
imprisonment (all but 179 days of which was suspended in favor of four
and one-half years' probation), to a special parole term of three
years, and to a $5,000 fine.  The court of appeals affirmed.

   1. On December 22, 1986, Mark Whittaker, a Utah State Narcotics
Agent, was monitoring flights arriving at Salt Lake International
Airport from Los Angeles, a known source city for narcotics.  Upon the
arrival of one flight from Los Angeles, Agent Whittaker saw a man with
a shoulder bag get off the plane.  The man, later identified as
petitioner Ziebarth, walked to a group of telephones, looked around,
and then walked across the hallway to another group of telephones.
Ziebarth picked up three or four of the telephones but did not appear
to be making any calls.  After going to a restroom for a few minutes,
Ziebarth returned to one of the groups of telephones.  Although he
appeared to be dialing this time, Ziebarth did not appear to be
talking, and Agent Whittaker did not see him put any money in the
telephone.  Ziebarth appeared nervous.  Pet. App. 4-5;  Gov't C.A. Br.
2-3.

   Agent Whittaker followed Ziebarth as he left the telephone area and
began walking toward the terminal exit.  Approximately five times
Ziebarth turned around and nervously checked behind him.  Ziebarth
entered a lounge area, looked around and then left, walking in the
direction of escalators leading to the exit.  Near the top of an
escalator he met petitioner Bell.  The two men greeted each other and
briefly embraced.  As they rode down the escalator, they turned away
from each other, stood back to back, and stopped speaking.  At the
bottom of the escalator, Agent Whittaker met Deputy Bart Palmer and
Officer Terry Steed of the Salt Lake County Sheriff's Office and
described what he had observed.  Pet. App. 5-6;  Gov't C.A. Br. 3-4;
Pet. Bell's C.A. Br. 2.

   Still inside the terminal, petitioners walked to the far east side
of the building, turned around, and walked to the far west side of the
building.  As they did so, both men continued to look behind them.
Several times, Bell turned completely around and was walking backwards
while Ziebarth looked over his shoulder on several occasions.  Neither
man collected any luggage before departing the terminal.  As
petitioners walked toward a parking lot, Bell saw Agent Whittaker and
Deputy Palmer walking toward them.  Bell then abruptly turned and
walked away from Ziebarth.  At that point, Whittaker and Palmer
approached Ziebrth, and Steed approached Bell.  Pet. App. 5-6;  Gov't
C.A. Br. 3-4.

   a. Events leading to Ziebarth's arrest.  Deputy Palmer, who like
Agent Whittaker and Officer Steed was in plain clothes, approached
Ziebarth, identified himself as a police officer, and asked to speak
with Ziebarth for a moment.  Ziebarth agreed.  When asked if he was
waiting for someone, Ziebarth responded that Bell had picked him up
and that he was not waiting for anyone.  Palmer then asked to see
Ziebarth's plane ticket and driver's license.  Ziebarth complied.
After checking the ticket against Ziebarth's driver's license, Palmer
returned them.  Pet. App. 16-17.

   Ziebarth asked Palmer what the problem was and Palmer advised
Ziebarth that he was a narcotics officer and often spoke to travelers
in an attempt to locate narcotics being brought into Salt Lake City.
Ziebarth became visibly nervous and started looking around.  Palmer
asked if he could look through Ziebarth's nylon bag, and Ziebarth
asked him what was he looking for.  Palmer said he was looking for
narcotics or large amounts of money, and he advised Ziebarth of his
right to refuse the search.  Ziebarth handed the bag to Palmer, who
searched it and found nothing.  After returning the bag to Ziebarth,
Palmer asked him if he had drugs or large amounts of money on his
person.  Ziebarth replied that he did not.  At that point, Whittaker
went to assist Steed with Ball.  Pet. App. 17-18;  Gov't C.A. Br. 5.

   After Whittaker left, Palmer asked Ziebarth if he could search the
bulging zippered pockets on the shoulders of Ziebarth's leather
jacket.  Ziebarth again asked what Palmer was looking for, and Palmer
replied that he was looking for drugs.  Ziebarth reached up to unzip
his left pocket, but he had difficulty opening it because his hand was
shaking so badly.  Ziebarth eventually pulled out a manila envelope
and explained that it contained about $3,000.  Palmer pointed to
Ziebarth's right pocket and asked what was in that pocket.  Ziebarth
indicated that it contained more money.  When asked how much, Ziebarth
eventually responded that he was carrying about $7,000.  Palmer asked
why Ziebarth had stated before that he did not have a large amount of
money on his person;  Ziebarth said that $7,000 was not a large amount
of money to him.  Palmer then asked why Ziebarth was carrying so much.
 Ziebarth replied that he had just come from Hawaii, and that the
money was for an attorney who had done some mortgage foreclosure work
for him there.  In response to Palmer's query why he had not paid the
attorney while he was in Hawaii, Ziebarth stated that he did not know
why, but he was going to get a cashier's check and mail it.  Palmer
remarked that Ziebarth's explanation sounded strange, at which point
Ziebarth volunteered that the attorney was not a real attorney but
some kind of mortgage attorney and that he owed money on his mortgage
so that his home would not be foreclosed.  Pet. App. 18-20;  Gov't
C.A. Br. 6-7.

   Palmer advised Ziebarth that he was going to detain him a few
minutes until he could determine whose money Ziebarth was carrying and
why Ziebarth had it.  Palmer asked Ziebarth if he would mind going to
the office to straighten out the money situation, and Ziebarth replied
"fine." Upon reaching the office, however, Ziebarth dropped his bag
and bolted down the concourse.  He was tackled and arrested.  A
subsequent search of his person produced ten and one-half ounces of
cocaine.  Pet. App. 20-21.

   b. Events leading to Bell's arrest.  Steed, who was also in plain
clothes, identified himself to Bell as a police officer and asked if
he could speak to him.  Bell agreed.  When Steed asked Bell if he was
Ziebarth's friend, Bell replied that he was not.  Steed then asked:
"Aren't you a friend of his, aren't you with him or a friend of his?"
Bell responded:  "Not really." Steed observed that Bell was turning
his right shoulder in an attempt to hide a rolled-up denim jacket that
was under his arm, from which protruded a brown paper bag.  When
asked, Bell denied that there was anything in the bag.  Steed again
inquired about the contents of the bag, and Bell stated that it was
personal.  Steed asked if he could touch the bag for his own safety,
to assure himself that it did not contain a weapon.  Bell replied:
"No, it's personal, it's not a weapon.  You don't have to worry about
it." Pet. App. 7-9.

   Steed informed Bell that he was a narcotics officer assigned to
keep narcotics from entering Utah through the airport.  Bell's level
of nervousness increased dramatically, and he began breathing more
heavily.  When asked why he was nervous, Bell stated that he was
always nervous when confronted by police, and hurriedly denied that
anything in the bag was causing him to be nervous.  Steed motioned
Whittaker over and described his conversation with Bell.  Whittaker
told Bell that he was going to detain the package for the purpose of
having a narcotics-detection dog check out the package.  When Bell
asked if Whittaker could legally talk to him and detain the package,
Whittaker replied that he could and that Bell could either take a
receipt for the package and reclaim it after the dog had checked it,
or accompany Whittaker to the security office.  Bell responded that he
did not want Whittaker to look at the package.  When Whittaker told
Bell that the check would take only a few minutes, Bell agreed to go
to the office.  Pet. App. 7-12.

   Carrying the package, Bell accompanied Whittaker to the security
office some 200 feet away in the main terminal.  There, Whittaker told
Bell that he would take the package upstairs for the dog to check.
Bell protested that he wanted to accompany Whittaker, but Whittaker
replied that it was policy not to have anyone else around the dog when
it was working.  When Bell continued to protest, Whittaker began to
call for assistance.  Bell then stated, "oh well, never mind," and
handed Whittaker the package.  Upstairs, a narcotics-detection dog
alerted to the package twice.  Whittaker summoned Bell upstairs and
informed him that the dog had alerted to the package.  Bell denied
that the package contained narcotics.  Whittaker arrested Bell and
advised him of his Miranda rights.  Bell then stated that the package
contained money.  Whittaker opened the package, which contained
$13,800 cash.  After counting it, Whittaker gave Bell a receipt for
the money and released him.  Pet. App. 12-16.

   2. The district court denied petitioners' motions to suppress the
cocaine and the money.  The district court found that Ziebarth was not
seized until Palmer told him that he was going to detain him to check
the source of the money, at which point reasonable suspicion supported
his temporary detention.  The court further found that probable cause
to arrest arose when Ziebarth bolted, and that the narcotics were
seized pursuant to a valid search incident to arrest.  Pet. App.
23-24.

   With respect to Bell, the district court found that the initial
encounter had been consensual;  that there was sufficient
justification to detain Bell's package for a dog sniff;  and that
probable cause to arrest Bell arose when the dog alerted to the
package.  The court found that Bell had then consented to the search
of the package.  Pet. App. 24-25.

   3. The court of appeals affirmed.  It found that the encounter
between Ziebarth and Deputy Palmer was consensual up to the time
Palmer advised Ziebrth that he would be briefly detained in order to
determine the ownership of the money.  Pet. App. 28-36.  The court of
appeals found that during that period Ziebarth had validly consented
to the examination of his airline ticket, as well as to the search of
his bag and coat pockets.  Pet. App. 36.  The court further held that,
assuming the encounter ceased to be consensual when Palmer told
Ziebarth he would be briefly detained, the ensuing detention did not
constitute an illegal arrest, but was merely a permissible temporary
detention based on a reasonable suspicion that Ziebarth was
transporting illegal drugs.  Pet. App. 36-43.

   As to petitioner Bell, the court of appeals found that no seizure
occurred until Agent Whittaker took Bell's package.  Pet. App. 43-45.
The court further held that the detention of Bell's package did not
exceed the permissible limits of a temporary investigative detention,
and was supported by a reasonable suspicion that the package contained
contraband.  Pet. App. 44-49.  Thereafter, the court held, the dog's
alserting to the package provided the requisite probable cause to
arrest Bell and to search his person.  Pet. App. 49.

   Judge Ebel concurred in part and dissented in part.  Pet. App.
53-70.  He joined that portion of the majority opinion affirming
petitioner Ziebarth's conviction, but dissented from the majority's
conclusion that the officers had a reasonable suspicion tht Bell was
engaged in criminal activity at the time they seized his package.  In
his view, Bell's behavior "was (no) different from that of thousands
of other travelers who pass daily through air terminals," and his
responses and behavior when confronted by the police were "no
different from that which could reasonably be expected of a law
abiding citizen." Pet. App. 66.

                               ARGUMENT

   Petitioners contend that they were "seized" for Fourth Amendment
purposes when they were first approached by the law enforcement
officers, Pet. 20-28, and that the seizures were not supported by
reasonable suspicion that they were carrying narcotics, Pet. 28-35.
These fact-bound questions were correctly decided by both courts below
and do not merit review by this Court.

   1. In Michigan v. Chesternut, 486 U.S. 567 (1988), the Court
reiterated its "clear direction that any assessment as to whether
police conduct amounts to a seizure implicating the Fourth Amendment
must take into account 'all the circumstances surrounding the
incident' in each individual case." Id. at 572 (quoting INS v.
Delgado, 466 U.S. 210, 215 (1984), which in turn quoted United States
v. Mendenhall, 446 U.S. 544, 554 (1980) (opinion of Stewart, J.)).
The Court also made clear that police conduct rises to the level of a
Fourth Amendment seizure "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." Id. at 573 (quoting United States v.
Mendenhall, 446 U.S. at 554 (opinion of Stewart, J.)).  Accord INS v.
Delgado, 466 U.S. at 215;  Florida v. Royer, 460 U.S. 491, 502 (1983).

   a. Here, both courts below correctly concluded that the initial
encounters between the police and petitioners were not seizures under
the Fourth Amendment.  Deputy Palmer approached Ziebarth and asked if
he would mind talking for a moment.  Ziebarth readily agreed to talk
with Palmer, and just as readily complied with Palmer's request to see
his airline ticket and driver's license.  Palmer immediately returned
the ticket and license to Ziebarth.  Palmer then requested Ziebarth's
permission to look through his bag and expressly advised him of his
right to refuse consent.  Ziebarth agreed to the search.  When asked
about his zippered pockets, Ziebarth reached up and himself unzipped
the pockets and handed Palmer the envelope which he said contained
about $3,000.  When asked about the other pocket, Ziebarth volunteered
that it contained more money and that he was carrying about $7,000,
which he was going to use to pay an attorney.  These events took place
in a public area, the officers were in plain clothes, and no weapons
were displayed.  Under these circumstances, where there was nothing to
suggest that Ziebarth could not have left at any time, the courts
below properly concluded that no seizure had occurred up to that
point.

   Like Ziebarth, petitioner Bell agreed to stop and talk when asked
to do so by Officer Steed.  Bell willingly answered questions
concerning his relationship with Ziebarth.  When questioned about the
paper bag that he was carrying, Bell denied that it contained anything
of significance and refused to allow Steed to feel the bag.  At that
point, Steed did not restrain Bell or insist on feeling or looking
into the paper bag.  These circumstances support the finding by both
courts below that the encounter between Bell and Steed was entirely
consensual up to the point at which Steed detained Bell's package.

   b. Recognizing that objective circumstances indicated that
petitioners were free to terminate their respective conversations at
any time, petitioners argue that when an officer subjectively suspects
an individual of committing a crime, any ensuing encounter between an
individual and a police officer "can never be characterized as
consensual in nature." Pet. 27.  In petitioners' view, only "normal
intercourse" between citizens qualifies as "(c)onsensual encounters
between police and citizens." Pet. 27-28.  "The encounter loses its
consensual nature when the encounter is based upon suspicious
circumstances as viewed by the officer." Pet. 28.

   Petitioners offer no support for their theory that the consensual
nature of an encounter turns on the subjective beliefs of one of the
parties.  In every case in which this Court has distinguished
consensual encounters from seizures that must be supported by
reasonable suspicion, the original encounter was prompted by the
officer's suspicion that the defendant was committing a crime.
Furthermore, the Court has repeatedly made clear that the
"reasonableness" of searches and seizures for purposes of the Fourth
Amendment must be determined by reference to an objective standard.
See Scott v. United States, 436 U.S. 128, 138 (1978);  United States
v. Villamonte-Marquez, 462 U.S. 579, 584 n.3 (1983).  As the Court
explained in Maryland v. Macon, 472 U.S. 463, 470-471 (1985) (citation
omitted):  "Whether a Fourth Amendment violation has occurred 'turns
on an objective assessment of the officer's actions in light of the
facts and circumstances confronting him at the time,' and not on the
officer's actual state of mind at the time the challenged action was
taken." An officer's suspicion that a crime has been committed has a
bearing on the issue whether a seizure has occurred only to the extent
that his suspicion is relayed to the suspect and would lead the
suspect to believed that he was not free to leave.  Even then, the
suspect's awareness that he is suspected of having committed a crime
is but one factor to consider in determining whether a reasonable
person would believed that he was not free to leave.  The subjective
motivation of the law enforcement agents in this case does not
override the lower courts' finding that neither petitioner was seized
within the meaning of the Fourth Amendment until the officers
announced that they were going to detain Ziebarth for a few minutes
and were going to have a narcotics-detection dog sniff Bell's bag.

   2. The detentions of Ziebarth and petitioner Bell's bag were based
on reasonable suspicion, as both courts below determined.  An officer
may make a brief investigative stop of a person when he "observes
unusual conduct which leads him reasonably to conclude in light of his
experience that criminal activity may be afoot." Terry v. Ohio, 392
U.S. 1, 30 (1968).  The factors supporting a finding of reasonable
suspicion must be viewed in light of the inferences and deductions
that a trained and experienced officer would make.  United States v.
Cortez, 449 U.S. 411, 418 (1981);  United States v. Mendenhall, 446
U.S. at 563 (opinion of Powell, J.);  Brown v. Texas, 443 U.S. 47, 52
n.2 (1979).  "(A) series of acts, each of them perhaps innocent in
itself, * * * taken together (may) warrant() further investigation."
Terry v. Ohio, 392 U.S. at 22.  See United States v. Cortez, 449 U.S.
at 417-418 ("the essence of all that has been written is that the
totality of the circumstances -- the whole picture -- must be taken
into account");  United States v. Sokolow, 109 S. Ct. 1581, 1585
(1989) (a series of acts, perhaps innocent if viewed separately, may
amount to reasonable suspicion when taken together);  Reid v. Georgia,
448 U.S. 438, 441 (1980).

   a. At the time Deputy Palmer told Ziebarth that he would be briefly
detained while his ownership of the money was verified, the officers
had good reasons to suspect that Ziebarth was involved in the
narcotics trade.  The officers had seen Ziebarth engage in suspicious
behavior, including pretending to make telephone calls, repeatedly
checking to see if he was being observed or followed, feigning a lack
of acquaintance with Bell immediately after greeting and embracing
him, and surreptitiously splitting up with Bell when he saw the
officers approach.  During his conversation with Deputy Palmer,
Ziebarth became so nervous that he had difficulty operating a zipper
and falsely denied his possession of several thousand dollars in cash.
 When Deputy Palmer asked him why he had so much money, Ziebarth
offered the bizarre explanation that he was going to use it to pay a
Hawaiian attorney (who was not really an attorney) even though
Ziebarth had just left Hawaii.  The officers' observation of
Ziebarth's nervous attempts to avoid detection, Ziebarth's lie about
possessing thousands of dollars, and his incredible explanation for
the money, provided reasonable grounds for briefly detaining Ziebarth.
 Both courts below were unquestionably correct in upholding the
officers' judgment.

   b. At the time Officer Steed and Agent Whittaker informed Bell that
they needed to detain his package, the officers were well aware of
petitioners' suspicious attempts to avoid detection, including in
particular Bell's walking backwards to see if he was being observed or
followed, his contrived effort to distance himself from Ziebarth after
having previously greeted and embraced him, and Bell's attempt to
split up with Ziebarth when he saw the officers approach.  Moreover,
as the court of appeals noted, "Ziebarth's conduct could be added to
Bell's * * * for the purpose of determining whether reasonable
suspicion existed." Pet. App. 47.

   The officers also observed suspicious behavior by Bell in his
conversation with Officer Steed.  Bell's level of nervousness
increased dramatically when he learned that Steed was a narcotics
officer.  Bell falsely denied that he was with Ziebarth or that
Ziebarth was a friend of his.  And Bell repeatedly turned his body in
an attempt to hide the package he was carrying.  The officers'
observation of Bell's countermeasures to avoid detection, his anxiety
and false denial about knowing Ziebarth, and his obvious attempt to
conceal the package, gave the officers reasonable grounds to detain
the package to determine whether it contained contraband.  Experienced
narcotics officers viewing the whole picture, see United States v.
Cortez, 449 U.S. at 417, could reasonably suspect from those facts
that petitioners were trafficking in narcotics.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   EDWARD S.G. DENNIS, JR.

      Assistant Attorney General

   DEBORAH WATSON

      Attorney

   MAY 1990