ROBERT A HICKEY, PETITIONER V. UNITED STATES OF AMERICA No. 90-7563 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 First Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals is reported at 918 F.2d 254. The opinion of the district court denying petitioner's motion to suppress (Pet. App. 1a-5a) is not reported. JURISDICTION The judgment of the court of appeals was entered on November 2, 1990. By order dated January 22, 1991, Justice Souter granted an extension of time to file a petition for a writ of certiorari to and including April 1, 1991. The petition was filed on that date. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the police had probable cause to search the car that petitioner's co-defendants were driving. 2. Whether the warrantless search of bags inside the car's trunk was lawful when the police had probable cause to believe that the bags contained contraband or other evidence of crime. 3. Whether a police officer should have been precluded from identifying petitioner in court because the officer, after positively identifying petitioner in two photospreads, also saw petitioner when he was arrested and booked. STATEMENT Following a jury trial in the United States District Court for the District of Massachusetts, petitioner was convicted of armed bank robbery, in violation of 18 U.S.C. 2113(d), conspiracy to commit that offense, in violation of 18 U.S.C. 371, and using a firearm during a crime of violence, in violation of 18 U.S.C. 924(c). He was sentenced to concurrent terms of imprisonment of 216 months on the bank robbery count and 60 months on the conspiracy count, and to a consecutive term of 60 months' supervised release. He was also ordered to pay $29,933 in restitution. The court of appeals affirmed. /1/ 1. The evidence at trial established that on October 18, 1988, at about 12:30 p.m., three men in nylon stocking masks robbed a branch of the Bank of New England in Braintree, Massachusetts. Two men jumped over the counter and took cash from the tellers' drawers. The smaller of the two men, identified as co-defendant John Maguire, was armed with a small handgun and pushed a teller into a closet. A third robber, identified as Thomas Kavanagh, brandished a large, long-barreled gun in the lobby. The three men left with $29,985.45 in cash and fled in a waiting car, driven by a fourth man. 918 F.2d at 256. While the robbery was in progress, one of the bank tellers tripped the bank's silent alarm system, and the police broadcast a bank-robbery-in-progress report over the police radio. Lt. Donald Murphy, an off-duty police officer, heard the report while he was at home. Murphy, a 16-year veteran of the Braintree Police Department, knew from prior experience that other robbers of the Braintree Branch of the Bank of New England had switched getaway cars at the South Shore Plaza, which is less than one mile from his house and from the bank. Murphy immediately drove towards the plaza in his private, unmarked truck. 918 F.2d at 257. En route to the plaza, Lt. Murphy heard another police radio report stating that the three armed men had fled the bank by car. Drawing on his experience, Murphy assumed that there was a fourth man driving the car, and he also assumed the men were white, since the report did not identify their race. As he neared the plaza, Murphy saw four men, each carrying a bag, climb down a highway embankment and crawl through a fence separating the embankment from the street that runs alongside the plaza. /2/ At this point two minutes had passed since the initial report of the robbery. Ibid. The men brushed off their pants and neatened their hair as they stopped to cross the street; crossing it, they passed within a few feet in front of Murphy's truck and he clearly saw their faces. The men conferred briefly, then split into pairs and walked to two cars in the parking lot of the plaza, an Oldsmobile and a Hyundai. Each man placed the bag he was carrying in the trunk of one of the cars. Murphy noticed that one bag, a blue and tan one carried by Maguire, appeared to be very heavy and of the size and shape it would be if it contained guns and money. That bag, along with a paper bag carried by Kavanagh, was placed in the trunk of the Oldsmobile. Murphy recorded the license plate numbers of both cars and took another look at the two men in the Hyundai. Then he radioed for backup and followed the Oldsmobile out of the parking lot. 918 F.2d at 257. As he followed the car, Murphy saw both of its occupants bend over as if they were changing their shoes, and he observed the car swerve as Maguire, who was driving, changed his jacket. Suddenly the car made a U-turn into a gas station. Murphy held up his police radio so the men could see that he was following them, and the driver shifted into reverse, as if to escape. By that time, however, another police car had arrived, which blocked the car's escape. The men were ordered out of the car and frisked. When asked, Maguire denied that he had been at the South Shore Plaza. Ibid. Murphy searched the car, including its trunk. He felt two guns in the blue and tan bag, opened it, and found two loaded revolvers inside. He also opened the paper bag, which contained a radar detector and a police scanner. (The police scanner was later identified as belonging to petitioner, and petitioner's fingerprints were found on batteries inside the scanner. Gov't C.A. Br. 10-11.) Maguire admitted that he had no permit for the guns, and the two men were arrested. 918 F.2d at 257. On the same day as the robbery, at police headquarters in Boston, Lt. Murphy was shown a photospread of known associates of Maguire and Kavanagh, and he identified a photo of petitioner as the driver of the Hyundai. 918 F.2d at 262-263. At the FBI office on the following day, Murphy was shown a different array of photographs, and he again chose a photo of petitioner as the driver of the Hyundai. (The Hyundai was later determined to be registered to petitioner. Gov't C.A. Br. 9.) Lt. Murphy also saw petitioner on two other occasions before trial. Murphy was the officer who booked petitioner at the Braintree Police Station on October 20, 1988, and Murphy was present when petitioner was arrested and booked by federal agents on October 26, 1988. 918 F.2d at 262. 2. The district court denied petitioner's motion to suppress the evidence seized from bags found in the trunk of the Oldsmobile. The court noted that the police officers were entitled to search the bags "as part of the automobile" if the officers had probable cause to search the entire car, and not just the bags. Pet. App. 4a-5a. The court found that Lt. Murphy had probable cause to believe that the car's occupants were the bank robbers and that the car contained "guns, money and other items related to the bank robbery." Id. at 4a. Accordingly, the court held that the bags contained in the trunk were properly searched. Id. at 5a. The district court also denied petitioner's motion to suppress evidence of Lt. Murphy's photographic identifications and to bar him from making an in-court identification. The court found that there was "no evidence" supporting petitioner's claim that the photospreads from which Murphy identified petitioner were suggestive so as to "render the evidence inadmissible or disqualify Murphy from making an identification in court." Pet. App. 2a. 3. The court of appeals affirmed. The court first concluded that the police had probable cause to arrest the occupants of the Oldsmobile given the "totality of circumstances," including Officer Murphy's experience with bank robberies and the "tightly forged chain of circumstances" surrounding the arrest. 918 F.2d at 258. The court further held that the officers had probable cause to search both the interior and the trunk of the car because they could reasonably believe that the entire car contained evidence of the bank robbery. Id. at 259-260. Distinguishing United States v. Chadwick, 433 U.S. 1 (1977), and Arkansas v. Sanders, 442 U.S. 753 (1979), the court of appeals held that the search of the containers was lawful under Untied States v. Ross, 456 U.S. 798 (1982). 918 F.2d at 260-261. /3/ The court of appeals also found no error in the admission of the out-of-court and in-court identifications of petitioner by Officer Murphy. The court held that the two photospreads from which Officer Murphy identified petitioner -- one at the police station on the day of the robbery, the other at an FBI office a day later -- were not impermissibly suggestive because they were comprised of a sufficient number of pictures, the men in the pictures were all of similar appearance, and Murphy was not influenced to pick petitioner's picture out of the group by those administering the photospread. 918 F.2d at 262-263. The court also found that, even if the photospreads had been suggestive, Murphy's identification of petitioner was sufficiently reliable to satisfy the test established by this Court in Neil v. Biggers, 409 U.S. 188, 199-200 (1972). The court noted that Murphy's photo identifications of petitioner were based on two clear viewings of petitioner -- once when Murphy observed petitioner in full face and in profile as he walked within 6 feet of the truck in which Murphy sat, and again when Murphy drove past petitioner in the parking lot as petitioner and his cohorts conferred for a brief time before driving away. 918 F.2d at 263-264. For the same reasons, the court found that Murphy's in-court identification of petitioner was also proper. Id. at 264-265. ARGUMENT 1. Petitioner contends (Pet. 17-20) that the police did not have probable cause to search the trunk of the Oldsmobile. However, the factual conclusion of both courts below that the police had probable cause to search the Oldsmobile when they stopped it was plainly correct. Moreover, this Court has already denied review of this question in this very case, see Maguire v. United States, No. 90-6759, cert. denied April 1, 1991, and petitioner has advanced no further reason why review would be appropriate. /4/ After Lt. Murphy, an experienced police officer, learned of the bank robbery, he correctly deduced that four white men were involved; within minutes of the report, he saw four such men, in a place they could logically have reached from the bank, each carrying a bag, one of which was the shape and weight of a bag that contained guns and money. From Murphy's experinece with previous bank robberies at the very branch that had just been robbed, he believed that the robbers would likely use a certain parking lot to switch getaway cars, as other would-be robbers had done. Sure enough, the four men climbed down an expressway embankment, through a fence, and toward the vary parking lot on which Murphy's suspicions had focused. They split up and entered separate cars after placing the bags they had been carrying in the trunks of the two cars. As Murphy followed one of the cars, he saw that the men inside appeared to be changing clothes, as if to conceal their identities. The driver made an abrupt U-turn into a gas station, and attempted to flee once Murphy revealed his identity. When asked if he had come from the parking lot from which Murphy had followed him, Maguire lied and said no. On these facts, the police had probable cause to believe that the men were two of the bank robbers and that the car they were driving contained evidence of the robbery. 918 F.2d at 258-260. The district court and court of appeals assessment of the facts in this case represents a reasonable analysis of the totality of the circumstances according to the proper standard of practical and common sense notions of probabilities. Cf. Illinois v. Gates, 462 U.S. 213, 231-232 (1983). In any event, the conclusion of both courts below that the particular set of circumstances presented in this case provided the officers with probable cause is the kind of fact-bound determination that does not merit further review by this Court. 2. Petitioner also contends (Pet. 20-27) that the police acted illegally in opening without a warrant the paper bag they found inside the car trunk which contained petitioner's police scanner and batteries with his fingerprints on them. He argues that Officer Murphy had probable cause only to believe that the bags in the trunk contained evidence of the robbery, and that his warrantless search of the bag therefore violated the Fourth Amendment under this Court's decisions in United States v. Chadwick, 433 U.S. 1 (1976), and Arkansas v. Sanders, 442 U.S. 753 (1979). In light of this Court's decision in California v. Acevedo, No. 89-1690 (May 30, 1991), it does not matter whether Officer Murphy had probable cause to search the entire car, as the court of appeals held, or whether Officer Murphy's probable cause focused entirely on the bags in the trunk of the car, as petitioner argues. In either case, Officer Murphy was entitled to search the bags in the trunk without first obtaining a warrant. Acevedo, slip op. at 10-11, 14. 3. Finally, petitioner challenges (Pet. 32-35) the admissibility of Officer Murphy's in-court identification of him. He no longer disputes that the two photospreads from which Officer Murphy positively identified petitioner immediately after the robbery were proper. See 918 F.2d at 262-264. He now argues only (Pet. 32-33) that Murphy's viewings of petitioner at his arrest and booking, which occurred after the photospread identifications but before trial, were so impermissibly suggestive that they tainted Murphy's in-court identification. Contrary to petitioner's contention (Pet. 33), the court of appeals did not fail to address this aspect of his claim. After finding that Officer Murphy's positive identification of petitioner in two separate photospreads was properly admitted at trial -- both because the photospreads were not suggestive and because Murphy's identification was reliable -- the court of appeals concluded that any suggestive impact that the later show-ups might otherwise have had on Murphy's in-court identification of petitioner was inconsequential. 918 F.2d at 262, 264-265. That conclusion is entirely sensible. Even assuming that one-on-one show-ups, as a general matter, are "inherently suggestive" (Pet. 34-35), it is highly doubtful that the two intervening show-ups in this case so undermined Murphy's identification of petitioner at trial as to "give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384 (1968). On the contrary, Murphy had already positively identified petitioner in two settings that were not suggestive in the least. Manson v. Brathwaite, 432 U.S. 98, 114 (1977) ("reliability is the linchpin in determining the admissibility of identification testimony"); see also Neil v. Biggers, 409 U.S. 188, 199-200 (1972). 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 KATHLEEN A. FELTON Attorney MAY 1991 /1/ Petitioner was charged together with John J. Maguire, Thomas M. Kavanagh, and William Ferreira. Petitioner's motion for severance was granted, and he was tried separately. All four men were convicted on all counts. 918 F.2d at 256. Petitioner, Maguire, and Kavanagh appealed their convictions, which the court of appeals consolidated. Ibid. Maguire filed a separate petition for a writ of certiorari, No. 90-6759, which was denied on April 1, 1991. /2/ The only way to get from the highway to the South Shore Plaza is by climbing down the embankment. Within an hour, the car in which the robbers had escaped was found abandoned on the expressway adjacent to the embankment, about 20 yards from where the four men had crawled through the fence. /3/ Because the court found that the search of the trunk was proper, it did not decide whether the district court correctly determined, Pet. App. 3a, that petitioner had standing to challenge that search. 918 F.2d at 261. It did note, however, that under First Circuit precedent, petitioner did not have a privacy interest in the trunk of a car he did not own, possess, or ride in sufficient to be able to raise a Fourth Amendment challenge to the search of the car. Ibid. /4/ Petitioner is mistaken in claiming (Pet. 28) that the issue of his standing is not properly before this Court. Although the First Circuit found it unnecessary to resolve that question in light of its holding that the search of the car trunk was lawful, this Court could not avoid the question. Unlike the consolidated case before the First Circuit, in which two of the three appellants clearly had standing to challenge the search, this petition involves only one petitioner whose right to contest the validity of the search is seriously in question. As we argued before the district court and the First Circuit, petitioner exhibited no legitimate expectation of privacy merely by permitting his property to be concealed in someone else's car. See Gov't C.A. Br. 12-18. This Court could therefore not properly decide the Fourth Amendment claim pressed by petitioner unless it first established that petitioner had standing to assert the claim. See Rakas v. Illinois, 439 U.S. 128, 138-140 (1978) (question of standing is inextricably linked to whether a Fourth Amendment violation has occurred).