No. 95-1043

In the Supreme Court of the United States

OCTOBER TERM, 1995

ARRE KENNEDY, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

DREW S. DAYS, III
Solicitor General

JOHN C. KEENEY
Acting Assistant Attorney General

WILLIAM C. BROWN
Attorney

Department of Justice
Washington, D.C. 20530
(202)514-2217

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QUESTION PRESENTED

Whether the court of appeals correctly ruled that
narcotics evidence was admissible under the inevita-
ble discovery exception to the exclusionary rule.

(I)

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TABLE OF CONTENTS

Page

Opinions below . . . . 1 
Jurisdiction . . . . 1 
Statement . . . . 2 
Argument . . . . 7 
Conclusion . . . . 11 

      
TABLE OF AUTHORITIES

Cases:

Nix v. Williams, 467 U.S. 431 (1984) . . . . 5, 7 
United States v. Boatwright, 822 F.2d 862 (9th Cir.
1987) . . . . 10 
United States v. Cherry, 759 F.2d 1196 (5th Cir.
1985) . . . . 8, 9 
United States v. Horn, 970 F.2d 728 (10th Cir.
1992) . . . . 8 
United States v. Owens, 782 F.2d 146 (10th Cir.
1986) . . . . 7, 8 
United States v. Satterfield, 743 F.2d 827 (11th Cir.
1984) . . . . 9 
United States v. Woody, 55 F.3d 1257 (7th Cir.),
cert. denied, 116 S. Ct. 234(1995) . . . . 8 

Constitution and statutes:

U.S. Const. Amend. IV . . . . 4 
21 U.S.C. 846 . . . . 2, 5

(III)

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In the Supreme Court of the United States

OCTOBER TERM, 1995

No. 95-1043

ARRE KENNEDY, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITIONER FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-18)
is reported at 61 F.3d 494. The order of the district
court denying petitioner's motion to suppress (Pet.
App. 19-26) is unreported.
       
JURISDICTION

The judgment of the court of appeals was entered on
August 7, 1995. The court of appeals denied a petition
for rehearing on September 25, 1995. Pet. App. 27.
The petition for a writ of certiorari was filed on
December 26, 1995 (a Tuesday following a Monday
holiday). The jurisdiction of this Court is invoked
under 28 U.S.C. 1254(1).

(1)

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2

STATEMENT

Following a conditional guilty plea in the United
States District Court for the Eastern District of
Michigan, petitioner was convicted of conspiring to
possess cocaine with the intent to distribute it, in
violation of 21 U.S.C. 846. He was sentenced to 120
months' imprisonment, to be followed by five years'
supervised release. The court of appeals affirmed.
Pet. App. 1-18.
1. On July 25, 1993, petitioner flew from Detroit,
Michigan, to Miami, Florida, on Northwest Air-
lines (Northwest).  He checked two locked pieces
of luggage, a blue suitcase and a black suitcase.
Northwest mistakenly labeled petitioner's suitcases
with tags bearing the name of Wesley Kennedy,
a Northwest passenger unrelated to petitioner.
As a result, petitioner's suitcases were misrouted and
sent to National Airport in Washington, D.C. At
National Airport, Wesley Kennedy, who had flown
from Detroit to Washington, discovered that his
own bag was missing and reported the problem to
Deborah Hawkins-Garner, a Northwest employee.
Hawkins-Garner showed petitioner's two suitcases to
Wesley Kennedy, who informed her that the suitcases
were not his. Pet. App. 2.
Northwest's policy regarding lost luggage was to
open the suitcase to check for identification and, if
there was no identification, to inventory the contents.
Pursuant to that policy, Hawkins-Garner decided to
open the suitcases to see if they contained any
identification. She was unable to open the black suit-
case because it had a combination lock. She was able
to open the blue suitcase because it had a lock that
could be opened with a Northwest key. The blue

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suitcase contained $176,000, which was promptly
reported to the Metropolitan Washington Airport
Authority Police Department. Pet. App. 2-3, 20.
Officer Simon Mantel responded and was later
joined by Sergeant Arthur Taplett. Sergeant Tap-
lett's suspicions were aroused by a strong odor of
perfume emanating from the black suitcase: Con-
cerned that the suitcase might contain explosives,
Sergeant Taplett had it x-rayed. That process re-
vealed a number of dense, rectangular-shaped objects.
Officer Mantel stayed with the suitcases while
Sergeant Taplett arranged to move the suitcases to
the airport police station. Pet. App. 3.
At that point, Hawkins-Garner decided to open the
black suitcase. After receiving permission from her
supervisor to open the bag, she obtained a hammer and
a screwdriver and asked Officer Mantel to open it for
her. Sergeant Taplett advised Officer Mantel that he
could open the suitcase if Northwest wanted it
opened. Officer Mantel then used the hammer and
screwdriver to force open the lock on the suitcase.
The suitcase was subsequently determined to contain
17 kilograms of cocaine and 77 grams of cocaine base.
Pet. App. 3-4.
Shortly thereafter, Northwest in Washington,
D.C., was notified that petitioner had arrived in
Miami and was looking for his suitcases.  Drug
Enforcement Administration agents arranged for a
controlled delivery of the suitcases to petitioner. The
next day, petitioner was arrested after he picked up
the suitcases in Miami and admitted that the
suitcases belonged to him. Petitioner confessed that
he had been trafficking drugs from Miami to Detroit
for several months.  A consensual search of peti-

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tioner's home produced an additional $225,000 in cash.
Pet. App. 4.
2. Petitioner was indicted on cocaine trafficking
charges and moved to suppress the cocaine seized
from his black suitcase and the indirect fruits of
that search. The district court denied the motion
based on the inevitable discovery exception to the
exclusionary rule. Pet. App. 19-26. In denying the
motion to suppress, the district court determined that,
absent the illegality, the airport police would have
returned the suitcase to Northwest, which would
have searched it under its standard policy:

The police misconduct in this ease was the
warrantless search of the black suitcase, thus the
Court must consider what would have happened
had the illegal search not occurred. Had the
police acted lawfully, once the bag was seized and
it was determined that it posed no danger of
exploding, they would have sought a search war-
rant. The government concedes that under the
facts of this case, it is unlikely that a search
warrant world have been issued. If the police had
been unable to secure a warrant, they would have
been required to return the suitcase to Northwest
Airlines unopened. Northwest would then have
opened the suitcase, pursuant to its lost luggage
policy, in an effort to locate its owner.

Id. at 24 (footnote and citation omitted). Because the
action of Northwest in opening the bag would have
been a "search" by a private entity rather than the
police, the district court concluded that the Fourth
Amendment would not have been violated. Id. at 25.
Following the denial of his motion to suppress, peti-
tioner entered a conditional plea of guilty to con-

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spiring to distribute cocaine, in violation of 21 U.S.C.
846, reserving his right to appeal the denial of the
motion.
3. The court of appeals affirmed. Pet. App. 1-18. It
agreed with the district court that the evidence
resulting from the warrantless search of the black
suitcase would inevitably have been discovered by
lawful means. The court of appeals recognized that
the inevitable discovery exception requires proof that
the evidence inevitably would have been acquired
through lawful means had the government mis-
conduct not occurred. Id. at 7, citing Nix v. Wil-
liams, 467 U.S. 431, 444 (1984). Further, the court
noted that proof of inevitable discovery "involves no
speculative elements but focuses on demonstrated
historical facts," and that the exception requires the
district court to "determine, viewing affairs as they
existed at the instant before the unlawful search,
what would have happened had the unlawful search
never occurred." Pet. App. 7.
The court of appeals noted that decisions in other
circuits had announced divergent positions on the
question whether the inevitable discovery exception
requires proof that at the time of the illegal search a
separate independent line of police investigation was
underway. See Pet. App. 8-9. It then ruled that, be-
cause the exception ultimately turns on the ineluc-
tability of discovery rather than a specific means of
discovery, "the inevitable discovery exception to the
exclusionary rule applies when the government can
demonstrate either the existence of an independent,
untainted investigation that inevitably would have
uncovered the same evidence or other compelling
facts establishing that the disputed evidence in-
evitably would have been discovered." Id. at 13.

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Applying that standard, the court of appeals held
that the disputed evidence in this case inevitably
would have been discovered. Pet. App. 13-17. The
court of appeals relied in large measure on the
existence of Northwest's "routine procedure" in
opening lost luggage for identification purposes. Id.
at 15. The court observed:

Prior to the intervention of the airport police,
Hawkins-Garner had already decided to open the
suitcases pursuant to Northwest's policy of
opening lost luggage. Even after the airport
police arrived, Hawkins-Garner still thought she
should open the suitcase because she considered it
to be in Northwest's custody. Hawkins-Garner
testified that she would have opened the suitcase
herself or had another employee to do so if Officer
Mantel had not opened it for her. Therefore, it is
clear that, pursuant to Northwest's lost luggage
policy, Hawkins-Garner would have opened the
black suitcase and discovered the evidence in a
private search had the airport police not become
involved. Because a private search was inevitable,
the cocaine is admissible pursuant to the in-
evitable discovery exception to the exclusionary
rule.

Id. at 15-16.*                                       

___________________(footnotes)

* The court of appeals also rejected petitioner's argument
that the inevitable discovery exception should not apply
because the law enforcement officers might not have relin-
quished control of the black bag to Northwest. If the officers
had maintained custody of the bag to seek a warrant, the court
of appeals pointed out, the officers would have conducted a
search pursuant to that warrant; if a warrant had not issued,
Northwest would have conducted a private search after the
suitcase had been returned. In either case, the court con-

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7

ARGUMENT

1. The inevitable discovery doctrine permits ille-
gally seized evidence to be admitted at trial where the
government establishes "that the information ulti-
mately or inevitably would have been discovered by
lawful means." Nix v. Williams, 467 U.S. at 444.
Petitioner contends (Pet. 9-13) that the decision of
the court below conflicts with decisions from the
Fifth, Tenth, and Eleventh Circuits that, he sug-
gests, bar the application of the inevitable discovery
exception unless the government can demonstrate the
existence of "a previously initiated independent line
of investigation." Pet. 10. Although there is some
disagreement among the courts of appeals in the de 
scription of the circumstances in which the inevitable
discovery exception may apply, the present case is not
in conflict with the holding of any other court of
appeals.
Petitioner first relies on United States v. Owens,
782 F.2d 146, 152-153 (10th Cir. 1986), a case involving
an unconstitutional police seizure of cocaine from a
closed bag inside a closed dresser drawer in a motel
room after the occupant had been arrested outside.
The government argued in Owens that the inevitable
discovery exception should apply because the motel
maid's routine cleaning for the next occupant would
have revealed the contraband. Because "[s]everal
factors suggested] that motel employees performing
routine cleaning may not have inevitably discovered
the cocaine," the court of appeals rejected the
government's argument. Id. at 153. The factors con-

___________________(footnotes)

cluded, a lawful search inevitably would have been conducted,
and the cocaine would have been discovered. Pet. App. 17-18.

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8

sidered in Owens included: (1) the possibility that
motel staff might not have found, or opened, the small
closed container of cocaine; (2) that in view of the lack
of any police involvement in routine room cleaning
the motel staff might not have recognized the cocaine
or turned the drugs over to the police; (3) that absent
the illegal search, the occupant might have posted bail
and returned to the motel room before the cleaning
staff; and (4) that a friend of the occupant could have
claimed the closed bag. Those factors led the Owens
court to reject the application of the inevitable
discovery exception because it was "highly specula-
tive" whether discovery of the contraband was
inevitable. Ibid. The decision in Owens does not
conflict with the conclusion of the court below that in
this case, a private search by Northwest under its
standard procedures was inevitable.  See United
States v. Woody, 55 F.3d 1257, 1270 (7th Cir.) (evidence
in automobile would inevitably have been discovered
in subsequent mandatory inventory), cert, denied, 116
S. Ct. 234 (1995); United States v. Horn, 970 F.2d 728,
732 (10th Cir. 1992) (inevitable discovery doctrine
applied where weapons found in an automobile during
a roadside stop would inevitably have been discovered
in a subsequent, inventory following impoundment).
Petitioner also relies upon United States v.
Cherry, 759 F.2d 1196 (5th Cir. 1985), in which the
court of appeals wrote that application of the in-
evitable discovery exception requires, among other
things, proof "that the government was actively
pursuing a substantial alternate line of investigation
at the time of the constitutional violation." Id. at
1206. Unlike this case and Owens, Cherry did not
involve any question of an inevitable lawful search by
a private party. Rather, the entire investigation in

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9

Cherry was conducted by government officers, and
the question presented was whether a lawful search
conducted by those officers was inevitable. Because
of a concern that the exception would "swallow the
rule" if it allowed otherwise tainted evidence to be
admitted "merely because the police could have
chosen to act differently and obtain the evidence by
legal means," the Cherry court required not only
proof that the evidence would have been discovered in
any event, but also proof that the police were actively
pursuing a substantial alternate line of investigation
at the time of the misconduct.  Id. at 1205-1206.
Cherry thus did not address the circumstances in
which an inevitable private search might allow the
application of the inevitable discovery exception.
Similarly, in United States v. Satterfield, 743 F.2d
827, 845-847 (11th Cir. 1984), the court rejected the
government's  argument that a weapon illegally seized
from under sofa cushions at the defendant's residence
should have been admitted under the inevitable
discovery exception because it would have been found
in a later warrant-authorized search. Because the
court believed that the police should not be allowed to
forgo obtaining a warrant until after their search has
disclosed the presence of the evidence, it required
that "the police must possess and be actively pur-
suing the lawful avenue of discovery when the
illegality occurred." Id. at 847. As in Cherry, Satter-
field did not resolve the requirements for an applica-
tion of the inevitable discovery exception founded on
the inevitability of a private search.
The court below correctly concluded that the
inevitable discovery exception was applicable in this
case because of the Northwest policy regarding the
opening of lost luggage. The court of appeals appro-

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10

priately did not require that a separate and independ-
ent government investigation be in progress at the
time of the police misconduct, but it did require proof
of "compelling facts establishing that the disputed
evidence inevitably would have been discovered." Pet.
App. 13. That standard was more than adequate to
ensure, in the context of the claim that later events
would have led to a lawful private search, and thus
that the discovery of the evidence was truly inevita-
ble. See United States v. Boatwright, 822 F.2d 862,
864-865 (9th Cir. 1987) (Kennedy, J.) (suggesting that
development of "inevitable discovery doctrine proceed
on a "case by case" basis).
2. Petitioner also contends (Pet. 14-21) that the
government did not sufficiently demonstrate that a
lawful search of the black suitcase was inevitable
here. Based on the evidence adduced at the suppres-
sion hearing both the district court and the court of
appeals determined that the contraband in petitioner's
black suitcase inevitably would have been discovered.
The routine procedure of Northwest to open and in-
ventory lost luggage, a procedure that was in fact
being employed by the Northwest employee on the
scene, fully sufficed in the circumstances here to
establish that the disputed evidence inevitably would
have been discovered. See Pet. App. 13-18. That
factbound determination does not warrant further
review.

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CONCLUSION

The petition for a writ of certiorari should be
denied.

Respectfully submitted.

DREW S. DAYS, III
Solicitor General

JOHN C. KEENEY
Acting Assistant Attorney
General

WILLIAM C. BROWN
Attorney

FEBRUARY 1996

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