Warren E. Burger: We will hear arguments next in United States against Quinn. Mr. Levy, you may proceed when you are ready.
Mark Irving Levy: Thank you, Mr. Chief Justice, and may it please the Court, this case is here on writ of certiorari to the United States Court of Appeals for the Ninth Circuit. The question presented by our petition is whether under the Fourth Amendment respondent had a reasonable expectation of privacy in a fishing boat, the Sea Otter, and thus was entitled to challenge the search of the boat as the basis for seeking the suppression of evidence. The District Court held that respondent had no such standing to move for suppression. On respondent's appeal pursuant to a conditional guilty plea that reserved the issue of his standing to challenge the cert, a divided panel of the Court of Appeals reversed and held that respondent did have an expectation of privacy in the Sea Otter. Now, the facts relevant to this issue are set forth in the government's submission in the District Court. Although respondent is the proponent of the motion, had the burden of proof on the issue of his privacy interest, he neither made a factual presentation of his own in the District Court nor contested the government's factual statement. In 1978, respondent solicited one George Mayberry Hunt to participate in a drug smuggling scheme. Pursuant to that plan, respondent was to purchase a boat that Hunt and his crew would use to transport marijuana from Colombia, South America, to respondent's ranch on the coast of northern California. After delivering the marijuana, Hunt and the crew were to take the boat and go to Mexico. Pursuant to that plan, respondent thereafter purchased the Sea Otter. In the spring of 1979, respondent turned over the Sea Otter to a crew that had been recruited by Hunt. The crew sailed to Mexico to meet Hunt, and then on to Columbia to pick up the cargo of marijuana. The Sea Otter then returned to California and delivered the marijuana to respondent's ranch in June of 1979. Following delivery of the marijuana, Hunt and the crew started to sail the Sea Otter southward, but were delayed by bad weather. At that point, California fish and game officials boarded the Sea Otter because of suspected illegal fishing activities. The state officials saw things that led them to believe the Sea Otter had been engaged in marijuana smuggling, and they so notified the federal authorities. Coast Guard and Customs officers then went aboard the Sea Otter and found a number of suspicious circumstances, including admitted violations of Customs and Immigration requirements, a lack of documentation for the vessel, and evidence that two large rafts had recently been used, even though Hunt and the crew denied that they had been ashore. The Sea Otter was placed under seizure, and escorted to a nearby Coast Guard station where its cargo holds were pumped out and marijuana residue was found. No formal charges were brought against Hunt and the crew. Hunt remained in the San Francisco area for approximately nine months while the Sea Otter underwent repairs. He then took the boat to Costa Rica and used it for commercial fishing. Hunt turned over the Sea Otter to respondent in Costa Rica in November, 1981. Now, our submission here is straightforward. Respondent did not have an expectation of privacy in the Sea Otter, and therefore the search of the boat did not implicate any Fourth Amendment right of his.
Sandra Day O'Connor: Mr. Levy, the respondent, of course, has changed the whole attack now that he is in this Court, and says, well, the real problem is the seizure of the boat and possibly the seizure of the marijuana revenue. It is no longer a challenge to the search as such, and I wonder whether the respondent... whether you think the respondent can properly raise those issues here.
Mark Irving Levy: We think he cannot. We have addressed that issue in the reply brief, and in our reply brief we have traced the course of this litigation in considerable detail, and that discussion demonstrates that the entire focus of this case is on respondent's standing to challenge the search of the Sea Otter, not the seizure. The seizure issue is not raised in the District Court. It was not preserved in the conditional guilty plea, and it was not submitted to or decided by the Court of Appeals.
Sandra Day O'Connor: Is it quite clear that it is precluded under the terms of the reserved issue under the plea?
Mark Irving Levy: Absolutely clear. We have quoted it in our reply brief, and it is set out in the joint appendix, and the traditional guilty plea is at Page 21 of the joint appendix, and it says there, enters a conditional guilty plea, an order to preserve his right to appeal the District Court's decision that he had no standing to contest the search of the Sea Otter. The defendant's appeal will be limited to that one issue. As I say, we discussed all this in considerable detail in our reply brief, and we think that the entire course of the proceedings--
Sandra Day O'Connor: Well, I suppose his argument is that there is no right to search, because the search was the product of the illegal seizure, so that is the concern.
Mark Irving Levy: --That may be an argument that would have been open to him in the District Court, but it is certainly a different argument. A challenge to the seizure is certainly a different argument from a challenge to the search. The seizure argument was not raised or preserved below, either in the District Court or in the Court of Appeals, and we don't think it is properly presented here as an alternative ground.
Byron R. White: What if we disagree with you on that?
Mark Irving Levy: Well, we have also argued the merits of the seizure issue in our reply brief. I wanted to come to that at the end.
Byron R. White: All right, you go ahead.
Mark Irving Levy: Let me return to the search issue, since that is the issue that the Court of Appeals decided and the question presented in our certiorari petition, and one that we think warrants the consideration of this Court. Now, let me begin with the recognition that this area of the law does not generally lend itself to hard and fast legal rules. Inherently, the concept of a reasonable expectation of privacy will frequently depend on all the facts and circumstances of the particular case. Close questions involving shades of gray rather than black and white differences will frequently be presented, and bright lines and categorical distinctions will sometimes be difficult to draw, but there are principles that guide that resolution of the privacy issue, and it is important for this Court to make clear the legal significance and proper application of those principles. The decision below establishes a Fourth Amendment standard that rests on a fundamental misunderstanding of those guiding principles. Now, in this case, respondent from the very outset had no expectation of privacy in the Sea Otter. Our position is not so much as respondent characterizes in his brief that he abandoned the privacy interest. Rather, it is that respondent had no privacy interest at all. First, respondent never personally used the Sea Otter. For example, he never maintained living quarters on the boat, but kept his personal effects there. On the contrary, he specifically purchased the boat for the purpose of having others use it. In addition, respondent had turned over custody and control of the Sea Otter to Hunt for a period of some two months at the time the search occurred, and respondent also contemplated that Hunt would retain the boat for an extended, indefinite period thereafter, which in fact proved to be more than two years. Nor did respondent take any steps to preserve the privacy interest in the Sea Otter that he now asserts. In these circumstances where respondent did nothing that would give rise to an expectation of privacy and relinquish control over the Sea Otter for a considerable length of time, he had no Fourth Amendment privacy interest in the boat.
Warren E. Burger: We will resume there at 1:00 o'clock, counsel. Mr. Levy, you may resume.
Mark Irving Levy: Thank you, Mr. Chief Justice, and may it please the Court, before the luncheon recess I was discussing that respondent had no Fourth Amendment privacy interest in the Sea Otter. Now, in holding that respondent did have a privacy interest, the Court of Appeals majority relied on four factors. However, those factors do not give rise to a privacy interest on respondent's part. The Court of Appeals first relied on respondent's ownership of the Sea Otter, but the Fourth Amendment prohibition against unreasonable searches protects personal privacy, not property rights, and this Court has made clear that ownership of the searched area or object does not as such create the requisite Fourth Amendment privacy interest. Bare title does not itself create an expectation of privacy. Now, this is not to suggest that the Court has abandoned all reference to property interests in analyzing privacy or that the fact of ownership is invariably irrelevant. Ownership will often be associated with some use or occupancy or control of the property, including the exclusion of others that raises an expectation of privacy, but it is the expectation of privacy deriving from the use or control of the property and not the abstract fact of ownership as such that is the governing Fourth Amendment consideration. Where, as here, the property was never used by the owner, who bought it for the purpose of having other people use it, and had been turned over to the custody and control of others, the owner's paper title does not establish a privacy interest on his part.
John Paul Stevens: May I ask, Mr. Levy, supposing the respondent here had entered some kind of an instruction to the people who were using the boat and said, don't let anybody on the boat except the people working in our... whatever we are up to, and just don't let people generally on it. Would that give them any kind of--
Mark Irving Levy: No, I don't believe so. That would not have given him any privacy interest in the boat, given him any personal connection with it that would have--
John Paul Stevens: --What if he gave it to somebody and said, I don't want anybody except you to use it. You can have it for two years as long as nobody else gets on the boat.
Mark Irving Levy: --Again, where he had no previous connection, no prior privacy interest, that kind of reservation would not by itself create one.
John Paul Stevens: What if he said I have got some papers in the desk I don't want anybody to look at, so please don't let anybody on the boat.
Mark Irving Levy: Well, that would start to present a closer question, because there the owner had made use of the boat in a way that--
John Paul Stevens: Say he had... please put these papers in the desk, and I don't want people to look at them, but I figure that is a safe place where nobody can get in and out unless you let people wander onto the boat.
Mark Irving Levy: --That may give him in expectation of privacy in the desk. It would not give him an expectation of privacy in the boat as a whole.
John Paul Stevens: But I take it it would not be true if he said, please put this gun and this marijuana or this contraband in the desk. Then that would not have done it.
Mark Irving Levy: I think not. I think the nature of the property that is put into place is relevant to the kind of expectation of privacy that one might have in it. I think that's correct. But let me say in this case all that is far removed from the facts here, where the respondent did nothing. Let me also add that even if the owner had made some use of the property prior to turning it over to someone else, the duration of the relinquishment here would be such that we think he would have lost any privacy interest he might previously have had as the result of use, but our primary position here is that he never had any expectation of privacy in the first instance. Now, the second factor relied on by the Court of Appeals was respondent's possessory interest in the marijuana that was seized. This Court's decisions in Salvucci and in Rawlings unmistakably hold that a possessory interest in the items seized neither establish the necessary privacy interest in the areas searched nor serves as a substitute or a surrogate for that privacy interest. The Court of Appeals opinion confuses the analytically distinct concepts of an interference with a possessory interest in the seized items, which is the defining characteristic of a seizure, and the intrusion upon a privacy interest in the searched area which is the hallmark of a search. Now, once again, this is not to say that the fact that a person keeps his possessions in a place may not be relevant to whether he has an expectation of privacy. The use one makes of a place, including its use as a repository for personal effects, is one indication of a privacy interest, and thus a possessory interest in the items found can be evidential of a person's expectation of privacy because of the use he made of the searched area. But in this case it is clear the respondent never used the Sea Otter in a way that would in fact give rise to an expectation of privacy, and the Court of Appeals did not conclude otherwise. Rather, it relied on the simple fact that respondent had a possessory interest in the seized marijuana, and it is that approach that was legally erroneous.
Sandra Day O'Connor: Well, how do you distinguish it from Jeffers? Was that the case where someone had a possessory interest in drugs in a hotel room--
Mark Irving Levy: That's correct. It was Jeffers. But Jeffers went well beyond that, as the Court has already recognized in Salvucci and in Rakas. In Jeffers, the hotel room was rented by the defendant's aunts. He had permission to use the room. He had a key to the room. He in fact entered it at various times for a variety of purposes, including the stores, the hiding of his drugs. The Court held that in that circumstance the defendant's access to use of the room gave him a sufficient expectation of privacy that he could move for the suppression of received evidence.
Sandra Day O'Connor: --Because of items other than the drugs, you think?
Mark Irving Levy: Not just because of items other than drugs, but because of his access to and use of the room in ways that essentially made him a person who had a sufficient connection or had an expectation of privacy in the room even though he did not have a common law property right interest. As I said, it was rented by his aunts, but he did have a key, he had their permission to use it, and in fact entered it at will for a variety of purposes. We have no quarrel with that interpretation of Jeffers as the Court has construed it in Rakas and in Salvucci. We do not think Jeffers even at the time but certainly in light of Rakas and Salvucci, we don't think Jeffers can stand for the proposition that possessory interest in the item seized itself is enough to entitle defendant to challenge the search. The Court held squarely to the contrary in Salvucci and in Rawlings. Now, I should also say that Salvucci disposes of the respondent's argument that he was entitled to challenge the search because he was in constructive possession of the Sea Otter and its cargo of marijuana. Salvucci, in overturning the automatic standing rule of Jones versus United States, held that a possessory interest sufficient to establish criminal liability under substantive criminal law principles is not equivalent to a privacy interest protected under the Fourth Amendment. The doctrine of constructive possession is probably the best example of the distinction recognized by the Court's analysis in Salvucci between criminal possession and Fourth Amendment privacy. Now, as a third factor, the Court of Appeals pointed to respondent's coventure status in the drug smuggling operation, but it is well settled by the decisions of this Court that a defendant cannot vicariously assert the Fourth Amendments rights of his confederates, and respondent concedes that proposition in his brief. Nor did respondent acquire any expectation of his own in the Sea Otter by virtue of the smuggling activities of his co-venturers. Nothing in Hunt's actions in this case created a privacy interest on respondent's part that did not otherwise exist. Fourth Amendment privacy rights are personal rights. And whatever the privacy rights those aboard the Sea Otter may have had cannot be claimed by or attributed to respondent. And the Court of Appeals lastly considered the presence of water in the Sea Otter's hold which had to be pumped out in order to recover the marijuana debris to be a sign that steps had been taken to hide the marijuana and preserve privacy. This reasoning is flawed on several grounds. First, the fact that a criminal strived to conceal his acts from the authorities in the hopes that he will not get caught is scarcely the same thing as an expectation of privacy, let alone an expectation that society would recognize as reasonable and legitimate. Moreover, there is no indication in this case that respondent had anything to do with the asserted attempt to conceal the marijuana or that it was intended to maintain his privacy interest. Furthermore, the most likely explanation for the presence of the water is not that it was used to conceal the marijuana that was being transported, but rather that it served as ballast after the multi-ton shipment of marijuana had been unloaded. And as the government stated in its uncontested submission in the District Court, marijuana debris was observed on the Sea Otter in plain view. And finally--
Harry A. Blackmun: That fact is contested by the other side, isn't it?
Mark Irving Levy: --Well, he didn't contest it in the District Court, and we submit that it is too late at this juncture. It was the defendant's obligation to carry the burden of proof and put on the facts that he submitted were relevant to the disposition of the--
Harry A. Blackmun: What is the fact about the dispute as to a loss of six tons by fire? The other side denies that, too.
Mark Irving Levy: --I don't think that is significant to the outcome of the case. The reason we put it in our brief was simply to explain--
Harry A. Blackmun: Now, it is in your footnote, and you make a flat statement to that effect, and I want to know what is true.
Mark Irving Levy: --I am informed by the U.S. Attorney's office that the grand jury transcript in this case contains testimony by Hunt that there was a fire aboard the Sea Otter and it destroyed approximately half the cargo of the marijuana. The reason it is put in the brief is not because it is relevant to the legal issue before the Court, but rather that there was an apparent discrepancy between the size of the shipment that was taken on in Colombia and the quantity that was attributed to respondent in the indictment, and we were simply trying to reconcile and make it clear that those figures could be explained in that fashion. Now, let me also say, and perhaps most importantly on this point, that there was no reasonable expectation of privacy in the cargo hold of a fishing boat, which is an area open to common access and subject to routine inspections by a variety of federal and state officials. Now, in reaching its holding, the Court of Appeals purported to rely on the conjunction of the foregoing four factors, but in this case none of those factors indicates that respondent had an expectation of privacy in the Sea Otter. Whether we take it individually or cumulatively, these factors do not suffice to give rise to a privacy interest for respondent. Now, let me turn briefly to the seizure issue. As I have discussed with Justice O'Connor before, respondent now places primary reliance on the brief in this Court, not on the issue of his expectation of privacy and the standing to challenge the cert, but rather on the argument that he was entitled as the owner to challenge the government's seizure of the Sea Otter and taking it to the Coast Guard station, and therefore can challenge the ensuing search as the fruit of that seizure. As I have discussed, we don't think that issue is properly preserved here. It was not raised in the District Court. It was not preserved in the conditional plea agreement. It was not argued or decided by the Court of Appeals, and we think it plain that the issue of the validity of the search and the issue of the validity of the seizure are separate issues, and that the defendant had a legal obligation to raise and preserve that separate point below.
John Paul Stevens: Let me just stop you there for just a second. Isn't it true, though, that if he did have standing to challenge the seizure, he could as an incident to that have also, argued that the subsequent search was improper?
Mark Irving Levy: That would be under the traditional fruits analysis, but it would not be because there was anything independently wrong with the search. The search in and of itself could have been perfectly proper under the--
John Paul Stevens: What if he had come into court and said, my standing rests on the seizure, I don't care, you can keep the boat, it is a lousy boat, I don't want it back, but having standing in that way, I still want the evidence suppressed, and therefore I still have standing to... that gives me standing to challenge the cert.--
Mark Irving Levy: --For this purpose, I can assume, although I will come back to it later, but I can assume that if he had raised this in this District Court and included it in the conditional--
John Paul Stevens: --What you are just saying is, he made the wrong argument, but nevertheless, if he is right, it would sustain the judgment, wouldn't it?
Mark Irving Levy: --But it is not a question that only a... to sustain the judgment. To be an alternative ground it would have had to have been properly raised and preserved below. Rule 12 of the Federal Rules of Criminal Procedure says that any argument not raised in the District Court is waived, and Rule 11 on the conditional guilty pleas... the matter that is being reserved by the--
John Paul Stevens: The matter that is being reserved is whether he has standing to challenge the search.
Mark Irving Levy: --That is right. That is a different question.
John Paul Stevens: And if the evidence shows that he had standing to challenge the seizure and as an incident thereto the search as well, doesn't he have standing to challenge the search--
Mark Irving Levy: No, we submit he did not have standing to challenge the search. The issue of his standing to challenge the search and the validity of the search are different from the question of his standing to challenge the seizure. Now, it may be that as an incident, as a consequence--
John Paul Stevens: --Supposing he had, instead of arguing on the basis of four factors, he just forgot to argue that he was the owner of the Sea Otter, but the records show that he in fact was. Could he in this Court say, well, I fail to make that point, but that would sustain the judgment, and therefore you should look at the fact that I own the boat.
Mark Irving Levy: --On the search question?
John Paul Stevens: Well, all the search. I am just saying that we as not... it is still a search even though it followed the seizure. That is what he says he has got standing to do, and one argument in support of that is that he says he has standing to challenge the seizure because he owned it, and that gives him standing to be before the magistrate arguing that the evidence be suppressed as well. Why is that different than an argument, failing to argue about ownership of the boat?
Mark Irving Levy: I am not sure if he didn't rely on his ownership in the District Court that he would be free to raise that on appeal.
John Paul Stevens: Even though the record showed it.
Mark Irving Levy: Even though the record showed it. There are different obligations. One is to adduce the facts relevant to the issue, and the other is to make the legal arguments that one relies on.
John Paul Stevens: You cannot introduce a new legal argument in this Court that would sustain the judgment based on the record that is already made.
Mark Irving Levy: Not if it weren't raised and preserved below. I would think that is true both under Rule 12, which requires that arguments be raised and preserved in the District Court, I think it is true under the conditional guilty plea--
Byron R. White: What about our rule?
Mark Irving Levy: --and I think it is also true under the rules of this Court on alternative grounds for affirmance. Just yesterday in Whitley against Albers--
Byron R. White: What does it say? What does the rule say?
Mark Irving Levy: --My understanding of the rule is that the defendant is free to raise an alternative ground that would not change the judgment if that ground was properly raised and preserved below.
Byron R. White: Doesn't it say if the record supports it?
Mark Irving Levy: I think there is a separate requirement that it had been properly raised and preserved in accordance with the usual legal procedures, and the Court said as much yesterday in Whitley against Albers, if I read the opinion correctly.
John Paul Stevens: Of course, if it has been preserved below, it doesn't have to just sustain the judgment. You can argue... the petitioner can do that if he has preserved--
Mark Irving Levy: The petitioner can. The question is whether respondent can--
John Paul Stevens: --The theory of this rule is that respondent has a little greater latitude than petitioner does.
Mark Irving Levy: --That's correct, but his latitude is limited by--
John Paul Stevens: And the limitation on petitioner's right is, he has to have made the objection below and preserved it.
Mark Irving Levy: --That's right, but the limitation on the--
John Paul Stevens: You are saying the same limitation--
Mark Irving Levy: --on the respondent's right is that it has to not alter the judgment and that he had properly presented it and preserved it below. That is my understanding of this Court's... of alternative grounds. Now, having said all of that, let me also say that we think respondent's argument is without merit in this case even if it is properly before the Court. A seizure of an item is a governmental intrusion with a person's possessory interest in the item. Here, the government's brief detention of the Sea Otter to take it to port temporarily restrained the immediate use of the boat, but that action did not interfere with any interest of respondents. At the time of the seizure, respondent had turned over custody and control of the Sea Otter to Hunt for a period of some two months, and Hunt's control was also to continue for an extended indefinite period thereafter as well. Respondent is the owner, had no cognizable interest in the immediate freedom of movement of the Sea Otter, nor did the brief detention interfere with respondent's residual right to the return of the boat at some indeterminate time in the extended future, nor given its relative brevity did the detention deprive respondent of hits ability as the owner to determine the use that would be made of the Sea Otter. That would be true even if the detention had occurred before the marijuana was delivered to respondent's ranch. The few-hour delay that was occasioned by that detention in comparison to the two-month duration of the South American voyage was quite inconsequential, and did not impair the purpose to which respondent had put the Sea Otter, and beyond that, since the seizure in fact occurred after the marijuana delivery, we think it quite plain that the detention did not deprive respondent of any interest to determine the use of the Sea Otter. In sum, the brief temporary detention to take the Sea Otter to port did not affect any interest of respondents as the owner of the boat. If marijuana had not ultimately been found, the short delay that resulted from that detention would have been of no moment to respondent. Accordingly, that--
John Paul Stevens: --Yes, but isn't it true, Mr. Levy, in fact marijuana was found, and couldn't you have then permanently seized the vessel as a result of that ten-minute... that short detention?
Mark Irving Levy: --Well, we could based on the subsequent discovery of the marijuana, but the seizure that respondent seeks to challenge here is not the ultimate seizure.
John Paul Stevens: Yes, but as a consequence of that seizure, you have got the right to take his boat away from him.
Mark Irving Levy: Because of new evidence that was found, but his argument would be the same if... or his right to make the argument would be the same if we had temporarily detained the Sea Otter, pumped out the holds, and found nothing. His interest in that interim detention should be exactly the same--
John Paul Stevens: If had been an unlawful pumping out, I suppose he then... and he wanted to sue you for, you know... of course, it is federal, not 1983, but I would suppose that is right, yes.
Mark Irving Levy: --And we submit that he as the absentee owner had no interest that was infringed by that interim detention when the boat was out of his control for such an extended period of time. If the Court has no further questions, I will reserve the balance of my time for rebuttal.
Warren E. Burger: Mr. Iredale.
Eugene G. Iredale: Mr. Chief Justice, and may it please the Court, the question presented to the Court of Appeals by the appellant, Mr. Quinn, in this case was whether defendant Michael Robert Quinn had standing to contest the seizure and search of the vessel Sea Otter in 1979, when he was the owner of the vessel which was seized and searched, and the owner of the items seized. The government, which here says that the seizure has no part of this case, presented this issue for the Court of Appeals resolution before the Ninth Circuit, and this is from their brief on the first page, "Question, whether the District Court's ruling that defendant Quinn did not have standing to contest the seizure and search of the fishing vessel Sea Otter when he relinquished control of the vessel and its contents to ethers was clearly erroneous. "
William H. Rehnquist: That is a broader question than was preserved in the conditional plea, wasn't it?
Eugene G. Iredale: With respect to that, Justice Rehnquist, I have to say that we use imprecise language. What we meant to preserve, and I think--
William H. Rehnquist: I was curious about what you actually did preserve.
Eugene G. Iredale: --What both parties intended to preserve was the Fourth Amendment issue in the case as distinguished--
William H. Rehnquist: --What does it say? That is what I am asking.
Eugene G. Iredale: --I cannot recall the precise language.
Byron R. White: Is it in the record?
Eugene G. Iredale: It is. It is before the Court.
Byron R. White: Is it in the printed--
Eugene G. Iredale: Yes.
Sandra Day O'Connor: --It referred only to search, didn't it?
Eugene G. Iredale: Yes, it did, Justice O'Connor, and that was because there was one motion filed under the Fourth Amendment, and I filed about 15 other motions, and we intended to limit it to that one issue.
Sandra Day O'Connor: Have you ever made this argument about the seizure of the boat has given you standing to challenge the search of the boat in the courts below this Court?
Eugene G. Iredale: We raised the seizure issue, but--
Sandra Day O'Connor: Did you ever make the argument?
Eugene G. Iredale: --The search being the fruit of it, in that precise form, no.
Sandra Day O'Connor: Thank you. Now, going hack to the appendix, you were about to tell us what page that material could be found.
Eugene G. Iredale: The language can be found on Pages 21 through 24. With respect, however, to whether this issue is properly before the Court, it is framed in terms of the facts of the case. I think that the substance of the seizure issue was fairly raised before the Court of Appeals, and the government recognized that and addressed the seizure in their briefs, and in our reply brief, for example, we also indicated that Mr. Quinn, for instance, in the reply brief Mr. Quinn clearly had standing to contest the seizure of the Sea Otter because he was the owner of the vessel. That is on Page 1 of the reply brief. And finally, under the Court's rules and under numerous decisions, including Helvering versus Galrin, 302 US 238 245, California Bankers Association versus Schultz, and the case of U.S. versus Demas Compasarano, the prevailing party in the court below can raise any grounds which fairly supports the judgment of the court below.
William H. Rehnquist: Whether or not they were presented to the court below?
Eugene G. Iredale: I believe whether or not they were presented to the court below, if they were involved in the facts of the case, and I believe that this was clearly and fairly presented to the court below. Having said that, let me now turn to the issue. At 10:10 in the morning on the 28th of June of 1979, the fishing vessel Sea Otter was approached by a Coast Guard cutter. Three men from the Coast Guard cutter boarded the Sea Otter, seized it at a distance that may have been on the high seas, but the record is not precisely clear, took it under seizure, under detention some 15 miles into San Francisco Bay, under the Golden Gate Bridge, and still detaining the vessels, they put it in a berth at the Coast Guard facility at Urba Buena Island in San Francisco Bay. For an undetermined period, a fair inference would be between several hours and up to a day, both the crew and the vessel were detained. At some point during that seizure, and as a fruit and direct result of the seizure, the Coast Guard pumped out the holds of the vessel. Pumping out the water, and apparently by some mechanism straining the contents of the marijuana, at the conclusion of which they had a little less than a handful of alleged marijuana residue, actually less than half a gram.
Warren E. Burger: What difference would it have made if there were a handful or a ton for these purposes?
Eugene G. Iredale: None.
Warren E. Burger: I wondered, because you emphasized the handful so much.
Eugene G. Iredale: Except to say that this case in many ways is much ado about nothing, because they came up with a very small quantity of contraband, the only relevance of which in the case before the District Court would have been to corroborate the testimony of their chief witness, George Mayberry Hunt. In any event--
Thurgood Marshall: Well, since you can't point out how much, how many many tons did the vessel hold?
Eugene G. Iredale: --How many tons did it hold?
Thurgood Marshall: Yes.
Eugene G. Iredale: There is nothing in the record concerning that, and I don't know, Justice Marshall. I don't know.
Thurgood Marshall: Well, it held more than a handful.
Eugene G. Iredale: Oh, yes. Yes.
Warren E. Burger: The vessel had a nine-foot beam. Was that not so?
Eugene G. Iredale: Yes, sir. Yes, Mr. Chief Justice.
Warren E. Burger: And fifty-four length?
Eugene G. Iredale: A good many tons.
Speaker: It was a fishing vessel, and it was a substantial size. The issue before the Court is very narrow, whether Mr. Quinn's ownership possessory rights of the vessel gave him standing to contest the seizure which produced the ultimate search to which we object, or whether independently Mr. Quinn's conjunction of interest in the vessel and his relationship with the members of the crew give him a privacy interest, but we should not and need not get to the ultimate inquiry if it can be satisfactorily answered by an analysis of the seizure issue. Why, first of all, because a temporal analysis requires that you look at events in the way in which they occur, and in this case the seizure was first, the seizure was prerequisite to and antecedent to the ultimate search of which we complained. In United States versus Place, the Court held that although no privacy interest of the defendant in that case were infringed, the fact that there was a seizure, an illegal seizure by virtue of its prolonged nature vitiated the subsequent opening of the luggage even though the dog sniff violated no reasonable expectation of privacy. This Court's cases in recant years have made explicit and clear that the Fourth Amendment protects the people against not only unreasonable searches, but also unreasonable seizures. In Jacobson and Maryland versus Macon the Court made clear the distinction between the interests protected by the proscription on improper searches as opposed to improper seizures. Seizures and the proscription on improper seizures protects people's interest in property, their possessory interest in things, and therefore it follows as a logical matter, as indeed Footnote 6 of the Salvucci opinion suggests, and I think Place on Pages 707 to 710 rather clearly holds that one need not show an expectation of privacy to object to a seizure, and also as Place tells us. If the search which is complained of comes about as a fruit of the improper seizure which precedes it, the rule of Wong Sun means that the search must follow independent of any separate judicial inquiry as to the privacy interest involved in the search of which defendant has complained. In this case it is very simple, and I think although the government makes pro forma protestations to the contrary, and I won't make their concessions for them, it is clear. Mr. Quinn's possessory and proprietary interest in the vessel here give him standing to object to its seizure, which was of a prolonged nature. His mere absence from the scene does not constitute a constitutional relinquishment of his right, because the owner of property can object to its improper procedure whether or not he is present at the time of the seizure. In order to object to the seizure, Mr. Quinn need not show an expectation of privacy in the item seized. Indeed, the Fourth Amendment prohibition on improper seizures protects not a privacy interest but a possessory one, just as, for instance, in my briefcase here. I have two interests in it of a constitutional nature. It is mine. I own it. Somebody gave it to me as a gift. I have a right to the privacy of what is inside it, assuming that I don't do anything improper to give up my right, so the contents of it are protected by the Fourth Amendment's proscription on improper searches. And thus, if someone were to come in, a government official, and look inside, and rummage through and find my rather messy notes inside, I could say I object. You violated my right to be free from improper seizures and either sue the person, if appropriate, or if evidence was found which the government sought to use against me, move to suppress it, and in order to do that, I need only show that my reasonable expectation of privacy, to use the language of Rakas, Rawlings, and Salvucci, was infringed by the governmental action or interfered with. But suppose the government on the other hand does not open the briefcase, but a District of Columbia policeman on no basis whatsoever, let us assume for purposes of discussion, comes in here and seizes the briefcase, takes it out, puts it in a locker in the District of Columbia police headquarters, and keeps it there for three days, at the conclusion of which they bring Rex, the D.C. sniffer dog, up to my briefcase, and he takes a sniff, and terrible for me, Rex's tail points toward the sky. I am in serious trouble. And based on Rex's tail going up, and his sniffing and whining and the other information that he gives us as a trained, keen-eyed investigator, the District of Columbia police, having that probable cause, opens it up, and instead of finding mere old Xeroxes of 1800 cases, they find a quantity of a controlled substance, or a 1040 form which has been tampered with and suggests improper manipulation of the Internal Revenue Code by yours truly. I have not had my privacy expectations improperly violated because they had probable cause to open it up, but do I have a motion to suppress? Do I have a right to say I object, I move to suppress, or even a civil suit, assuming maliciousness of bad faith on the part of the police officer? Absolutely. Place tells us so. Jacobson tells us so. Is there any briefcase or dog in this case?
Eugene G. Iredale: No. I was using it as illustrative.
Thurgood Marshall: Well, what in the world are you talking about?
Eugene G. Iredale: In this case it is the same. Mr. Quinn owned--
Thurgood Marshall: A fishing boat is the same as a briefcase?
Eugene G. Iredale: --It is similar in certain respects as a container of things. It is sometimes in the possession or presence of the owner and sometimes out of the presence of possession of the owner. It shares certain characteristics that are similar--
Thurgood Marshall: Queen Elizabeth II is also a container.
Eugene G. Iredale: --Please, Your Honor?
Thurgood Marshall: A battleship is also a container.
Eugene G. Iredale: Yes, and in many cases, for instance, in a battleship, I would submit, if I owned a battleship or a fishing vessel, it may be that in certain areas, at least the common areas of the deck, that is open to public view.
Thurgood Marshall: You could carry a whole lot more marijuana than in a fishing ship. I suppose your briefcase example would be on point if you had, before all this happened, say three years ago, you gave it to your law partner or friend, and he had been using it for the last three years, and then the sequence happened. Would you then have the right to--
Eugene G. Iredale: Well, you hurt me with your hypothetical.
John Paul Stevens: --That is the fact here, isn't it?
Eugene G. Iredale: No. With respect, let me get into that, but let me answer you first, if I might, Justice Stevens. If I had given to my law partner or associate the briefcase here, I had some very important cases in here, don't lose it, and I want you, if you would, to take it from San Diego to Washington port.
Warren E. Burger: Counsel, you had better stay near the microphone here, if you want to be on record. You gave it to him, but you didn't say anything to him. You just gave him the briefcase, and it happened to have in the corner of it something that you don't want him to look at.
Eugene G. Iredale: And I didn't say anything to it? If that were the case, then I have relinquished it. If I say, here, this is your briefcase now, or you can use my briefcase for a month, and during that time it is yours absolutely, then I would probably not have a reasonable expectation of privacy. On the other hand, if I gave it to him and I said, I am going to give it to you for two months, because I have to go on vacation, and I want you two months from now to bring it from San Diego to Washington, D.C., don't open it up, and please don't lose anything inside, and he--
John Paul Stevens: Does the record show that your client said that about the boat?
Eugene G. Iredale: --The record shows that there was a plan, and that everything that was done in this case by Mr. Hunt was done in accordance with the plan, the agreement, the joint venture, the mutual understanding, and while I shudder to confess before the Court that the mutual understanding involved was an illegal one, and I do not stand up before the Court in support of a necessarily... person who is innocent as the driven snow. I do say that that understanding, like the understandings, for instance, in Jeffers or Bumpers, was an understanding between people which has its source outside the Fourth Amendment, but which gives rise to protected interests.
Sandra Day O'Connor: Mr. Iredale, who had the burden of proof below on the expectation of privacy?
Eugene G. Iredale: On the expectation of privacy issue and on the ownership of property interest, we bore the burden of proof.
Sandra Day O'Connor: Right, and the factual record is a bit murky on any elements of an intent to exercise control over the boat by your client, end there are a lot of things missing. I was just curious why we have such a sketchy record that you are now trying to--
Eugene G. Iredale: There are three reasons for that, Justice O'Connor. Number One is that we elected to rely on the government's submission as we have a right to do. In other words, we are entitled to rely on the state of the record, and if we feel that it is sufficient, we need not add to it. The burden is ours in the first instance, but if the Court has before it facts of record, we can rely upon it. Second, with respect to this Court's decisions in Rakas, Salvucci, and Rawlings, have put defense counsel in a terrible box, because in every case we have to analyze the situation and determine under the Court's holdings whether we should put our client on the witness stand or the witnesses on the witness stand and evaluate whether we have enough without that or whether that is necessary and what strategic advantage, if any, you give up to the government. And I felt that in this case I did not want to put my client on the stand because the government's submission was sufficient, and I elected to rest upon it. Third and finally, the real problem here is that standing, although in Rakas the Court noted its standing and the substantive issue really merged, they are always theoretically and temporally separate. Standing is a threshold issue, and on many cases the record that comes before you is a record after plenary evidentiary hearing, so that you have a transcript which gives you a full set of the facts. In this case, the District Court judge denied us an evidentiary hearing, and therefore many of the facts that would have been adduced had we been allowed to go forward would have been established and would be before you, and there are facts left out that hurt both sides. For instance, you cannot rely upon a fact which is not in the record that this vote was apparently under constructive seizure for weeks and months afterwards. It is not in the record. And on the seizure issue, for instance, that would held us greatly. But it is not in the record. So I am not going to urge it before you. But that is the reason why.
William H. Rehnquist: --On what issue did the District Court deny you an evidentiary hearing?
Eugene G. Iredale: We said Mr. Quinn was the owner of the vessel, and the District said, sir, well... and then I said I would also like, if I might, to call George Mayberry Hunt. He is in Costa Rica. He is subject to the government's power. I would like to call him as a witness, and the District Court judge in effect said, what is your offer of proof? Will he testify to me that Mr. Quinn was on board the vessel at the time of the seizure commanding the vessel? No, Your Honor, he will not. Fine. I find Mr. Quinn has no standing. It was as quick and as brusque as that.
William H. Rehnquist: What was your offer of proof then of the Costa Rican... what did you say he would have testified to?
Eugene G. Iredale: He would have testified--
William H. Rehnquist: In the offer of proof that you made to the District Court.
Eugene G. Iredale: --Essentially I said Mr. Quinn was the owner of the vessel, and we want to call Hunt as a witness, and the District Court judge said, unless he will say Quinn was on the vessel, I am going to find no standing, and then also I wanted Hunt to in effect amplify the government's statement that was submitted in the special agent's affidavit and the statement of fact submitted before the Court.
Sandra Day O'Connor: But you didn't put in the record the specific things that the absent witness would have said.
Eugene G. Iredale: No. You have the record before you. I believe that... and we rely on the government's submission and the fact of the ownership, which was stipulated to and uncontested. Mr. Quinn purchased this vessel. It was within his exclusive custody and control for a matter of months. He turned it over to Hunt only within the scope of the joint venture. He retook the vessel at a later time. He had exclusive custody and control of the vessel for two years. He was arrested living on the vessel in San Diego on August 8, 1983. With respect to this case, the government's position comes down essentially to this. Presence at the scene of the seizure, at the time of the seizure is the sine qua non for standing. In Rakas the Court says mere presence on the scene is not enough absent some other interest, and clearly for the government contend that would require everybody in order to protect their Fourth Amendment rights to run from place to place or thing to thing. Presence at the scene is not the sine qua non. It is in some cases an important fact. With respect to the constitutional protection which Mr. Quinn invokes which gives rise to his rights to object to the improper seizure of his vessel, the Court has said that history, although not determinative, is often illustrative in giving is an idea of the Fourth Amendment's scope and of its protection. The history of our country and indeed of the whole Revolution was one which in large part came about because of improper seizures of vessels. In researching the brief, I was gratified to find that one of the incentive for the Revolutionary War was the seizure of John Hancock's sloop Liberty by the British because... it didn't have marijuana, it had Madeira wines on which the British allege that Mr. Hancock had not paid the appropriate tax. The history of the Fourth Amendment is steeped in the right of maritime ship owners to object to the seizure of their vessels, and Wong Sun tells us that Mr. Quinn as a ship owner who has not relinquished any interest has a right to object to the seizure and to any fruits of that seizure. Finally, there is one point that I wish to make that is suggested by the government's reply brief. In this case, if the government had gone to Mr. Quinn, an agent of some kind, a DEA agent, a Customs agent, and said, Mr. Quinn, we want permission to seize your vessel, bring it to Urba Buena Island and pump the holds, do we have your permission? Sure, go ahead. If at that time instead of Mr. Quinn having been charged in the District Court, the crew members had been charged, I think neither the prosecutor nor the District Court judge would have properly permitted an objection to be made by those persons. He would have said, after hearing the facts to make sure there was a full and voluntary consent, he would have said, no, I find that Quinn had the capacity to consent, and therefore you are bound by his consent under Matlock, Bumper, and the other cases. It would appear to be only logical and fair that if a person has the capacity and power to consent to a seizure or search, they should have a correlative right to object. I would submit to the Court that under the Matlock case if reason, logic, and a Fourth Amendment analysis tells us that a person has the capacity and ability to consent, then that same person has the capacity under the Fourth Amendment standing to raise an objection. Finally, if I could briefly address the issue of Mr. Quinn's privacy interest, in this regard, we rely on the Jeffers case and on Bumper. In Rakas the Court cited Jeffers and Bumper with approval for the proposition that ownership of the property searched coupled... ownership or possessory interest in the property searched coupled with the possessory interest in the property seized gives a reasonable expectation of privacy to allow one to object to a search. In Salvucci, the Court in, I believe, Footnote 5, cited Bumper and Jeffers for the same proposition. In this case, Mr. Quinn was the owner of both the item searched, the place searched, and the item seized. Under the holding of Jeffers and Bumpers, he has standing. Finally, the government appears, although they do not urge it here today, in their brief to raise an issue that one can never have an interest in contraband to permit the assertion of a Fourth Amendment interest. While it is undoubtedly true that contraband in plain view, such as in Texas versus Brown, gives right to no fault amendment claim, it is also clear that in Rawlings, for instance, the Court held that Rawlings' ownership of the contraband was plainly a factor to be considered on the expectation of privacy issue, and in Trupiano and specifically in Jeffers the government made an identical argument, the very same argument that they made here today, urging that because Title 21 at that time provided that no person shall have an interest in contraband, that meant that no person could raise a Fourth Amendment objection to the seizure of contraband. The Court in Jeffers very plainly and conclusively held that that was erroneous, and that was in 1951. In sum, Mr. Quinn as the owner and a person who had a possessory interest which was not relinquished by his giving or entrusting the vessel to a joint venture, has standing, has a right to object to the seizure of the vessel because it infringed his possessory right, just as any tuna fleet owner in a similar circumstance could raise an objection to the seizure and pumping of the hold of his vessel, so, too, does Mr. Quinn. An analysis of the facts and this Court's holding in Bumper and Jeffers show also independently of the seizure issue that Mr. Quinn has a reasonable expectation of privacy. However, proper Fourth Amendment analysis and this Court's holding in Jacobson, Macon, and Place would suggest that the resolution of the seizure issue alone takes care of the subsequent search.
Warren E. Burger: Mr. Levy, do you have anything further?
Mark Irving Levy: I have a few brief points, Mr. Chief Justice, none of which is central to the resolution of the case, but may help clarify the Court's consideration. First, the District Court in this case did not deny an evidentiary hearing to respondent. After the events that Mr. Iredale described, Mr. Iredale then asked the Court, will the court allow us to call Mr. Hunt in order to establish standing on that issue. This is on Page 9A of the appendix to the petition, will the Court allow us to call Mr. Hunt? The court said, sure. Then Mr. Iredale said that Hunt was in Costa Rica and would be brought back by the government for trial, at which point he would like to call Hunt on the standing issue. The court said, make any motion you like. The respondent chose to enter a conditional guilty plea at that point, and Hunt was never culled as a witness by either party, but the District Court did not cut off respondent's opportunity in any way to make the record that he desired. Now, in his argument today, as in his brief, respondent's attorney has relied on a number of facts outside the record. Again, we don't think any of them is particularly important to the disposition of the case, but it does illustrate the problem that arises when a defendant does not meet his burden as outlined in this Court's decisions. It is the defendant's burden to make the record and to advance the proper legal arguments. As an example, Mr. Iredale today referred to the constructive seizure of the Sea Otter that continued after the hold had been pumped out and marijuana was found. I simply don't understand that. At that point the government could have seized, that is, forfeited the boat because it had been used in marijuana smuggling. So the fact that the government retained the boat at that point simply has nothing to do with the issue here. Now, contrary to Mr. Iredale's characterization, our argument is not that a defendant has to be present at the time of the search. Aldermand and Jeffers and countless other cases make that clear as we acknowledge in our reply brief. Our argument here is much different. It is that respondent never in any way for any reason had an expectation of privacy in the Sea Otter.
John Paul Stevens: What do you say to his argument that Quinn could have consented to a search?
Mark Irving Levy: Well, I am not sure it is as clear as Mr. Iredale suggested. It is not clear to me whether Mr. Quinn might have consented to a search of certain parts of the boat. It is possible he might have as the owner, that he had he proper standing. It is clear to me, though, for example, that he probably could not have consented to a search of the private living quarters--
John Paul Stevens: Well, but consented to precisely the steps the government took in this case, taking it into port and pumping out the water. Could he have consented to that?
Mark Irving Levy: --It is not so clear on these facts.
John Paul Stevens: Why not? What would have denied him the authority to grant such consent?
Mark Irving Levy: The question would be whether... the basis for the consent--
John Paul Stevens: Is there anything in the record which would show he did not have authority to grant such consent if he owned the boat?
Mark Irving Levy: --There is nothing in the record either way. The basis for that consent is not the abstract property right. It is the use and possession of the boat. Our quotation from Matlock in our brief makes that clear.
John Paul Stevens: But his legal right to grant that consent would flow simply from the fact that he owned the boat, wouldn't it?
Mark Irving Levy: If it was an area in which no one else--
John Paul Stevens: We know what we are talking about. Taking it into the port for ten days or whatever, ten minutes, pumping the water out, that is all, just to do that?
Mark Irving Levy: --He might have had consent to--
John Paul Stevens: Well, he would have had power to consent, wouldn't he?
Mark Irving Levy: --Well, if, for example, taking it into the port would constitute a Perry stop or a seizure of the people on board the boat and interfere with their freedom of movement and their right to use the boat, it is not so clear that he would have been able to consent to that. I think there would be a question about that. But in the end, the question... I agree with Mr. Iredale to this extent. The question of consent and the question of expectation of privacy are very similar, and Matlock makes that clear. What is not so clear is what Quinn as the owner would have had authority to consent to.
John Paul Stevens: Put a little differently, if you say he couldn't... could he have gotten on the radio wireless or something and talked to the skipper of the boat and said, take it into port for ten days? Couldn't he have done that as the owner of the boat?
Mark Irving Levy: From all that the record appears, I assume that he could have done that.
John Paul Stevens: I would think so.
Warren E. Burger: Thank you, gentlemen. The case is submitted.