MANUEL CHAVIRA, PETITIONER V. UNITED STATES OF AMERICA

   No. 90-7665

   In The Supreme Court Of The United States

   October Term, 1990

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

   Brief For The United States In Opposition

                             OPINION BELOW

   The opinion of the court of appeals (Pet. App. 1-15) is reported at
919 F.2d 1193.  The opinion of the district court (Pet. App. 16-27) is
unreported.

                             JURISDICTION

   The judgment of the court of appeals was entered on October 25,
1990.  A petition for rehearing was denied on January 7, 1991.  The
petition for a writ of certiorari was filed on April 8, 1991 (a
Monday).  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                          QUESTIONS PRESENTED

   1. Whether petitioner may challenge the seizure of a codefendant
that resulted in the codefendant's consent to the search of a house
containing drugs.

   2. Whether petitioner's codefendant had authority to consent to the
search of the house.

                               STATEMENT

   After a jury trial in the United States District Court for the
Northern District of Illinois, petitioner was convicted of conspiracy
to possess marijuana, heroin, and cocaine, with the intent to
distribute them, in violation of 21 U.S.C. 846, and of possession of
marijuana, heroin, and cocaine, with the intent to distribute them, in
violation of 21 U.S.C. 841(a)(1).  The district court sentenced
petitioner to 97 months' imprisonment and six years' supervised
release.  The court of appeals affirmed.

   1. Chicago police received a tip suggesting that Armando Chaidez
was a large-scale heroin dealer.  Accordingly, Chicago police decided
to observe Chaidez' activities on the day in question.  He left his
home in the morning and was driven to a restaurant.  He left that
restaurant in his own car, carrying a plastic bag, and, after some
circuitous driving, reached another restaurant.  He soon left that
restaurant with two unidentified individuals.  After more circuitous
driving, he stopped in the middle of a street and spoke to petitioner
and his step-daughter Lilia Silva.  Pet. App. 3.

   Petitioner and Silva then entered another car and drove to a gas
station, with Chaidez following.  After Chaidez spoke briefly with
petitioner, the two cars left in different directions.  The cars
eventually met up again (after still more evasive driving by Chaidez),
at which point Chaidez followed petitioner's car to a house north of
Chicago.  All three persons entered the house, with Chaidez carrying
the small plastic bag.  About a half hour later, Chaidez left the
house in one car, and petitioner and Silva left in the other.  After
Chaidez apparently discovered the surveillance, the police stopped
both cars by blocking the road.  Pet. App. 3-4.

   The agents then approached the cars with their guns unholstered.
Agent Rodriguez walked to the passenger side of the car and asked
Silva to identify herself.  After she answered truthfully, he asked
her if she lived in the house.  She answered that she rented it for
her father and had come to do his laundry.  Rodriguez read her the
standard Miranda warnings and then asked her if she would consent to a
search of the house.  When she responded favorably, Rodriguez took her
to a police van, where she signed a consent to search form.  The agent
radioed to another agent at the house that consent had been obtained,
and detained Silva, petitioner, and Chaidez for ten to fifteen minutes
during the search.  The search disclosed narcotics;  the officers
arrested Silva, petitioner, and Chaidez.  Pet. App. 4.

   2. Before trial, petitioner and codefendants Chaidez and Silva
sought suppression of the evidence seized at the house.  The district
court found that the agents properly stopped petitioner and his
codefendants pursuant to Terry v. Ohio, 392 U.S. 1 (1968), that
Silva's consent to the search of the house was valid, and that, based
on the evidence found in the search of the house, the agents had
probable cause to arrest the defendants.  Pet. App. 16-26.

   3. The court of appeals affirmed.  Judge Easterbrook, writing for
two judges, began his opinion with an analytical section, in which he
concluded that it is inappropriate to divide all stops into the two
categories of investigative, or Terry stops and full arrests, the
first to be supported by reasonable suspicion and the second by
probable cause.  Instead, he concluded that this Court's cases in the
area "describe a continuum in which the necessary degree of confidence
increases with the degree of intrusion." Pet. App. 5.  An intrusion
between an ordinary Terry stop and an arrest, he reasoned, is
permissible even if probable cause is not present, provided that the
evidence is reasonable in comparison with the nature of the stop.  Id.
at 5-6.

   Turning to the facts of this case, he concluded that the detention
in this case "was more intrusive than an ordinary Terry stop," Pet.
App. 6, noting that the agents had their guns drawn when they first
approached the defendants, that the agents searched both cars, and
that the car keys were taken from both drivers.  Ibid.  On the other
hand, he also concluded that the intrusion "both in terms of invasion
of privacy and inconvenience, is a good deal less than that involved
in arrest, which entails detention for hours or days and a myriad of
intrusions, including fingerprinting and a full personal search." Id.
at 7.

   He then examined the facts supporting the search, to determine
whether they were sufficient to justify the intrusion.  First, he
noted that Silva's association with the known miscreant Chaidez was in
itself insufficient.  Pet. App. 7-8.  But relying on Silva's
connection with Chaidez in the course of an apparent drug transaction,
her strange rendezvous with him on the road, and the perceived sudden
flight, he determined that the officers had adequate evidence to
justify the search.  Id. at 8-9.  /1/

   The panel also rejected petitioner's argument that Silva did not
have authority to consent to the search of the house.  The panel first
accepted petitioner's argument that it was not reasonable for the
officers to believe that Silva had authority based on her statements
that she did not live in the apartment, but was there only to do
laundry.  Pet. App. 9.  The court went on to hold, however, that Silva
had actual authority, based on evidence that Silva paid the utility
bills for the house, that women's clothing was found in the house,
and, most importantly, testimony of the owner that he had rented the
house to both Silva and petitioner.  Id. at 9-10.  Because Silva had
actual authority, the court reasoned, the search was valid.

                               ARGUMENT

   1. Petitioner's first contention (Pet. 22-25) is that the court of
appeals erred in allowing the evidence found in the house to be
admitted without finding probable cause to justify the seizure of
petitioner and his two codefendants.  This contention does not merit
review in this Court.

   The most fundamental barrier to petitioner's contention is that he
has no standing to challenge Silva's detention.  All of the evidence
in question was found based on a search to which Silva consented.
Petitioner makes no claim that Silva's consent was involuntary.  At
bottom, then, petitioner's claim on this point is that the detention
of Silva violated the Fourth Amendment and that her consent is thus
ineffective solely because it was the fruit of an unlawful detention.
/2/ It is well settled that "a court may not exclude evidence under
the Fourth Amendment unless it finds that an unlawful search or
seizure violated the defendant's own constitutional rights" and that
"the defendant's Fourth Amendment rights are violated only when the
challenged conduct invaded his legitimate expectation of privacy
rather than that of a third party." United States v. Payner, 447 U.S.
727, 731 (1980) (emphasis in original);  see Rakas v. Illinois, 439
U.S. 128, 143 (1978);  Alderman v. United States, 394 U.S. 165,
171-172 (1969).  Because petitioner's legitimate expectations of
privacy were not affected by the detention of Silva, he cannot
challenge the validity of that detention.

   In any event, it is reasonably clear that the decision below was
correct.  The proper manner of analysis is evident from the decision
of this Court in United States v. Sharpe, 470 U.S. 675 (1985).  In
that case, this Court examined the legality of a detention of a
vehicle and its driver for approximately twenty minutes waiting for
the arrival of a DEA agent who was examining a related detainee.  This
Court acknowledged that "if an investigative stop continues
indefinitely, at some point it can no longer be justified as an
investigative stop," but noted that its cases had "emphasized the need
to consider the law enforcement purposes to be served by the stop as
well as the time reasonably needed to effectuate those purposes." Id.
at 685.  It held that the key in determining whether an investigative
stop had transgressed permissible limits was "whether the police
diligently pursued a means of investigation that was likely to confirm
or dispel their suspicions quickly, during which time it was necessary
to detain the defendant." Id. at 686.  Because the police had acted
diligently there, the stop was found to be legal.  /3/

   The same analysis supports the stop here.  The law enforcement
purpose served by the stop was to find out whether the officers were
justified in suspecting that petitioner and his codefendants had
engaged in drug transactions.  Once the officers had detained
petitioner and his codefendants, they promptly asked Silva to identify
herself and attempted to ascertain her connection with the house where
they believed illegal transactions had occurred.  When Silva consented
to the search, the officers promptly caused the house to be searched.
The officers' decision to attempt to search the house in a lawful
manner surely was a professional way to attempt to resolve their
suspicions;  there is nothing to suggest that the officers in any way
delayed the detention beyond the time period reasonably necessary to
complete the search.  Moreover, in light of this Court's acceptance of
the twenty-minute detention upheld in Sharpe, the delay here cannot be
thought extraordinary.  Accordingly, the result reached by the court
of appeals comports with this Court's resolution of similar questions.

   Finally, despite petitioner's protestations, it is not at all clear
that the sliding scale proposed by Judge Easterbrook conflicts with
the analysis set forth in this Court's cases.  This Court has noted
that the "exception for limited intrusions * * * is not confined to
the momentary, on-the-street detention * * * involved in Terry."
Michigan v. Summers, 452 U.S. 692, 700 (1981).  Similarly, this Court
has made it clear that there is not a single monolithic standard of
evidence that must be met to justify a Terry stop;  the key questions
instead are "whether the officer's action was justified at its
inception, and whether it was reasonably related in scope to the
circumstances which justified the interference in the first place."
Terry v. Ohio, 392 U.S. at 20.  In the absence of any conflict among
the courts of appeals -- and petitioner suggests none -- there is no
reason for this Court to review Judge Easterbrook's formulation in
this case.

   2. Petitioner also complains (Pet. 25-27) that Silva had no
authority to consent to the search of the house.  /4/ Petitioner
suggests no conflict with any decision of any other court or, indeed,
any reason to believe that resolution of this factbound question would
be likely to provide significant guidance in any other case.  In any
event, his contention is meritless.

   It is undisputed that "the consent of one who possesses common
authority over premises or effects is valid as against the absent,
nonconsenting person with whom that authority is shared." United
States v. Matlock, 415 U.S. 164, 170 (1974).  The court of appeals
relied heavily on the only relevant third-party testimony (the
testimony of the owner of the house that Silva and petitioner were
co-tenants), on Silva's actions in granting the police consent to
search, and on the fact that women's clothing was found in the house
(there was no evidence that the clothing did not belong to Silva).
See Pet. App. 10.  These facts are sufficient to justify the lower
courts' conclusion that Silva had common authority over the premises
and the capacity to consent to the search.

   Petitioner's argument that the court of appeals ignored
"uncontroverted evidence that she did not live at the premises" (Pet.
26) is untrue.  The court of appeals did not ignore that testimony;
it simply accepted the jury's conclusion that the self-serving
statements of petitioner and his stepdaughter were incredible in light
of the testimony by the less obviously biased landlord.  Similarly,
petitioner is wrong to suggest (Pet. 26-27) that the court did not
analyze whether Silva had mutual use of and access to the property.
That is exactly what the court analyzed, explaining:  "The meanings of
'mutual use' and 'joint access' are far from clear, but this case is
not close.  * * * There is no evidence that (petitioner) had more
access to the house or used it more often than (Silva) * * *.  Neither
the judge nor the jury believed Silva's tale about the limited purpose
for which she visited the house." Pet. App. 10 (citations omitted).
This Court need not step in to review the resolution of factual
questions of this nature.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   ROBERT S. MUELLER, III

      Assistant Attorney General

   GEOFFREY R. BRIGHAM

      Attorney

   JUNE 1991

   /1/ Judge Ripple dissented, arguing that Silva's detention amounted
to an arrest and that there was not probable cause to support her
detention.  Pet. App. 11-15.

   /2/ Resolution of the standing issue was not necessary to the
decision of the court of appeals because Silva herself joined in the
appeal to that court.  See Pet. App. 1 (caption of case in court of
appeals).  Silva, of course, had standing to challenge the legality of
her detention.

   /3/ This Court also noted that, aside from the length of the stop,
it had found that a stop that did not include a formal arrest could be
so intrusive as to be treated as an arrest, and thus be unlawful in
the absence of probable cause.  See 470 U.S. at 683-684.  This rule
should not apply here, because Silva was not forcibly removed to a
police station or other remote location and did not experience any
other intrusion fairly comparable to a formal arrest.  See id. at 684
n.3.

   /4/ As a person who apparently shared authority over the house,
petitioner has standing to make this claim because the search invaded
his own privacy interests.  See 4 W. LaFave, Search and Seizure
Section 11.3(d), at 315 n.153 (2d ed. 1987).