RANDY TIM JOHNSON, PETITIONER V. UNITED STATES OF AMERICA No. 90-7167 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 Ninth Circuit Brief For The United States OPINIONS BELOW The opinion of the court of appeals (Pet. App. 14A-21A) is unreported. The opinion of the district court (Pet. App. 22A-33A) is unreported. JURISDICTION The judgment of the court of appeals was entered on November 15, 1990. The petition for a writ of certiorari was filed on February 12, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the police violated the Fourth Amendment when, after obtaining consent to search petitioner's automobile for guns or drugs, they looked inside the locked glove compartment by pulling back on the corner of the door. STATEMENT Following the entry of a conditional plea of guilty in the United States District Court for the District of Oregon, petitioner was convicted of possession of cocaine base with intent to distribute it, in violation of 21 U.S.C. 841(a)(1). He was sentenced to 135 months' imprisonment. The court of appeals affirmed. Pet. App. 14A-21A. 1. During roll call at the Portland Police Bureau on August 5, 1989, officers were advised to be on the lookout for a new white Mustang convertible from which firearms had been seized the previous day by other police officers. The officers were advised that the Mustang had been spotted in their area of patrol and that the operators of the Mustang might be gang members. Pet. App. 16A, 23A. That afternoon, officer Harry Jackson saw a white Mustang convertible parked by the side of the road. The Mustang, which was missing a front license plate, immediately left the area, made an improper lane change without signaling, and accelerated away at high speed. Officers Jackson and Vince Moreschi, in separate police cars, pulled the car over. Before the Mustang stopped, one of the occupants made a gesture that Officer Moreschi later described as resembling a throwing gesture. Pet. App. 16A-17A, 23A-24A. Officer Moreschi asked petitioner, the driver, for identification, and petitioner produced identification in the name Gary Harris. Moreschi asked petitioner whether he had any guns or drugs in the car, and petitioner replied "no." Moreschi then asked if petitioner would mind if he and Officer Jackson searched the car. Petitioner stated "no, go ahead." Moreschi asked petitioner and his passenger to step out of the vehicle, and frisked their outer clothing while officer Jackson advised them of their Miranda rights. The officers then placed petitioner and his passenger in separate patrol cars while Officer Moreschi conducted a search of the car. Pet. App. 17A-18A, 25A. After searching the interior of the car, Moreschi attempted to open the glove compartment, but discovered that it was locked. Moreschi pulled back on the glove compartment door long enough to catch sight of the butt of a revolver and a clear plastic bag containing a white powder resembling crack cocaine inside the compartment. Moreschi returned to the patrol car and asked petitioner for the key to the glove compartment. Petitioner insisted that he did not have the key. Moreschi returned to the Mustang, forced open the glove compartment, and removed two guns and a bag of cocaine from inside. Moreschi then arrested petitioner. Pet. App. 20A, 25A-26A. 2. The district court denied petitioner's pre-trial motion to suppress the weapons and the cocaine found during the search of his car. /1/ The court found that the stop of petitioner's car was supported by reasonable suspicion, and that the stop did not escalate into an arrest requiring probable cause until after the contraband was discovered inside the glove compartment. Pet. App. 26A-27A. Discrediting petitioner's testimony, the court found that petitioner had voluntarily consented to the search of his car and that Moreschi's action in pulling back on the door of the glove compartment fell within the scope of his consent. Id. at 28A-31A. The court distinguished the case from one in which, after obtaining consent to search a car, officers forced open a locked trunk to discover contraband. The court explained that, in contrast, "Moreschi was able to look inside the glove box without breaking the lock, as he would have done if the glove box had been unlocked." Id. at 30A. The court also found that Moreschi's initial observation of what he believed to be contraband inside the glove compartment provided the requisite probable cause to arrest petitioner. Ibid. 3. The court of appeals affirmed. The court agreed with the district court's conclusion concerning the legality of the stop of petitioner's car and the validity of petitioner's detention. Pet. App. 16A-18A. The court further agreed that petitioner had voluntarily consented to the search and that the officer's action in pulling back on the corner of the glove compartment to glance inside fell within the scope of petitioner's consent. The court observed that this conclusion was supported by petitioner's failure to object to the search even after being informed that Moreschi wished to search the glove compartment. Pet. App. 21A. ARGUMENT Petitioner argues (Pet. 9-12) that the search of the glove compartment exceeded the scope of his consent to search. /2/ As petitioner notes (Pet. 9), the issue whether a general and unrestricted consent to search an automobile authorizes the search of closed containers in the automobile is presently before the Court in Florida v. Jimeno, No. 90-622, cert. granted, 111 S. Ct. 554 (1990). In that case, the police, after obtaining consent to search respondents' automobile for drugs, opened a paper bag they found lying on the floor of the passenger compartment of the car. For the reasons outlined in the government's brief as amicus curiae in that case, it is the government's position that Officer Moreschi in this case did not exceed the scope of petitioner's consent to search when he pulled back on the corner of the glove compartment and peered inside. /3/ As stated in our brief in Jimeno, at 9, the scope of a valid search is determined by the terms of its authorization. Accordingly, an unqualified consent to search a car for drugs and weapons, such as occurred here, "should ordinarily be construed to permit the police to examine any closed containers within the car that could be used as receptacles for drugs (and weapons) and can be opened without causing significant property damage." Id. at 6. This is so because "absent some express or implied limitation, the search of a car is reasonably understood to contemplate not only an examination of the interior features of the car itself, but also an examination of any containers found inside the car that might contain the objects for which the search was authorized." Ibid. /4/ Here, immediately prior to seeking petitioner's consent to search his car, Officer Moreschi asked petitioner whether he had any guns or drugs in the car. Thus, implicit in Moreschi's request to search the car was his intention to search for those items. Thereafter, petitioner gave Moreschi general and unrestricted permission to search the automobile. Because either drugs or guns might be found inside the glove compartment, Moreschi's action in peering into the glove compartment in a manner that caused no damage to the compartment did not go beyond the scope of petitioner's consent. As the district court said, "Moreschi was able to look inside the glove box without breaking the lock, as he would have done if the glove box had been unlocked." /5/ Further, as the court of appeals noted, petitioner's failure to object when Moreschi asked him for the keys to the glove compartment supports the conclusion that the original look inside the glove compartment fell within the scope of petitioner's consent. /6/ CONCLUSION The petition for a writ of certiorari should be held and disposed of in light of the decision in Florida v. Jimeno, No. 90-622. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General DEBORAH WATSON Attorney MAY 1991 /1/ Shortly after the district court denied petitioner's motion to suppress, petitioner entered a plea of guilty to one count of possession of cocaine base. Before pleading guilty, petitioner filed a reservation of appellate rights. /2/ Petitioner does not renew his earlier contentions that the stop of his car was not supported by reasonable suspicion, or that, prior to the discovery of the guns and cocaine, the stop escalated into an arrest for which there was no probable cause. /3/ We note that there is a serious question concerning petitioner's standing to contest the search of the glove compartment. The record shows that petitioner, the driver of the Mustang, had borrowed it from Helen Gulgry, his girlfriend's mother. Tr. 68-71. Although Mrs. Gulgry testified that she thought she had left both the ignition key and the glove compartment key for petitioner under the mat of the car (Tr. 71-72, 75), petitioner told Officer Moreschi that he did not have the key to the glove compartment. Pet. App. 20A, 25A; Tr. 87. In our view, petitioner had no reasonable expectation of privacy in the locked glove compartment of a borrowed car, for which compartment, according to his own statements, he lacked the key. /4/ We are providing petitioner with a copy of the government's brief amicus curiae in Jimeno. /5/ Petitioner relies on (Pet. 8) the testimony of a defense witness, who stated that he attempted to pry back the edge of a glove compartment of a Mustang of the same year, make, and model as that searched in this case, but that the manner in which the compartment was constructed prevented him from seeing inside. Petitioner's complaint is unavailing, since the district court credited Officer Moreschi's testimony that he was able to see inside the glove compartment by pulling back on the door. Pet. App. 25A. /6/ The Court need not decide whether petitioner's consent to the search of his automobile authorized Officer Moreschi's subsequent forcible opening of the compartment. When Moreschi peered into the compartment, he espied the butt of a gun and what appeared to be cocaine. That observation provided Moreschi with probable cause to conduct a warrantless search of the glove compartment. See United States v. Ross, 456 U.S. 798, 820-824 (1982).