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Justia › US Law › US Case Law › US Supreme Court › Volume 454 › VASQUEZ v. U.S.
times create an unwarranted impression that the Court is not administering its certiorari docket in a responsible way. [Footnote 1] Because I was concerned that Justice REHNQUIST's opinion in Davis v. Jacobs, et al., 454 U.S. 911, might create such an impression, I thought it appropriate to write in response. A similar concern prompts me to write in this case.
Third, Judge Kearse's thorough opinion for the Court of Appeals, which occupies 55 printed pages of the appendix to the certiorari petition, demonstrates that the decision of the court was based on the totality of the specific factual circumstances of this case. [Footnote 4] It is often appropriate to decline to review a decision that turns on details of the evidence that are not likely to be duplicated in other cases. Unfortunately, to assess fairly the import of the decision of the Court of Appeals, one must review at some length the detailed facts underlying that decision.
The search at issue arose out of a police surveillance at 633 Grand Street on the evening of November 29, 1979. During the early hours of the evening, police officers arrested three sets of individuals as a result of that surveillance, each of which was in possession of a large quantity of cocaine. Amparo Medina left the building at 633 Grand carrying a large handbag, eluded the police, and returned home; police later arrested Medina and her husband Fernando after Fernando left the Medina home and officers found one pound of cocaine in his car. Clara and Hernando Mesa next exited 633 Grand; police arrested the Mesas after finding one-half pound of cocaine in their car. Within a short period of time, Carlos Sanchez left 633 Grand with a shopping bag; police arrested Sanchez after finding a pound of cocaine in the bag. The police made each of these arrests outside of the view of individuals remaining at 633 Grand.
replied that this was not so. Instead, Wright stated that throughout the day Jaramillo and others had been in and out of the fourth-floor apartment . As the officers spread through the apartment to assure themselves that it was not the scene of the narcotics operation, Dora Wright, her mother, and her baby all began to scream. By all accounts, the scene was tumultuous, and the three were still screaming 10-15 minutes later.
pressed the items seized from the box inside the metal cabinet, the documents seized after the initial entry, and the gun found under the mattress. On appeal, the Court of Appeals upheld the admission into evidence of items seized during the initial cursory inspection of the premises.
"The circumstances at 633 Grand Street present a very close question. Siegel testified that the agents were concerned that people remaining in the apartment might destroy evidence there, and there was some basis for this. Jaramillo and Parra had tried to divert the officers' attention from the fourth floor by telling them they had come from the second floor; and Wright revealed that Jaramillo's conversation with her in Spanish, when the agents went to her second-floor apartment, asked her to confirm this misdirection. Such attempts at diversion suggested that the fourth floor apartment contained evidence, or other persons, or both. It is true that one officer who placed his ear to the door of that apartment heard no sounds from inside, but there was another basis for believing that one or more persons remained in the apartment. It was a cold night, and Jaramillo had come outside wearing only a shirt, pants, and slippers with no socks. He had no key with him, and it could be inferred that there was someone in whatever apartment he had come from-the fourth floor apartment according to Wright-to let him back in. It was therefore reasonable to infer that evidence could well be destroyed if the persons remaining there were alerted to the agents' activities.
"By the time the agents determined that Jaramillo's designation of the second floor was a red herring, there was ample cause to believe that any remaining occupant of the fourth floor would have been alerted. For most of the evening the agents had managed to effect their arrests and investigatory stops out of the line of sight of the apartment. The last stops, however, had been made in front of the building. Then, when Jaramillo's claim that he had been on the second floor was being investigated, there was an extended commotion resulting from the involvement of the apparently unsuspecting Mrs. Wright and the entry of several agents into her apartment in the expectation, based on Jaramillo's statement, that they were at the scene of the cocaine operation.
curity check, and explicitly found that there were reasonable bases for their belief that additional evidence was present in the apartment and that there might be someone there who could destroy it. Since these explicit findings, which are not clearly erroneous, justified a security search, the items in plain view during the course of that search were properly seized." 638 F.2d 507, 531-532. ( Emphasis in original).
praisal of the facts, this Court does not in any way suggest that an individual's home is not entitled to rigorous Fourth Amendment protection. Indeed, recent decisions of this Court, see e. g., Payton v. New York, 445 U.S. 573; Steagald v. United States, 451 U.S. 204, as well as decisions of the Courts of Appeals, see e. g., United States v. Rosselli, 506 F.2d 627, 630 ( CA7 1974); United States v. Rubin, 474 F.2d 262, 268 (CA3 1973), prove just the opposite.
observed three men leaving the building, stopped them, brought them around the corner, and held them in custody. The officers asked what apartment they had been in. One of the detainees replied that they had been visiting a woman in the second-floor apartment, but would not give her name. Upon request, however, he agreed to accompany the officers to that apartment. As they approached the entrance, the officers saw petitioner exiting the building, recognized him as a known cocaine dealer, and placed him in custody with the others.
Circuit. The court found support for the officers' belief that the fourth- floor apartment contained suspects and evidence in the fact that the police had initially been diverted away from that apartment by their detainees. Additional support for the presence of persons in the apartment was found in the fact that one of the detainees had come to the street, despite the coolness of the evening, wearing only a shirt, pants, and slippers, and without a key in his possession. The reasonable belief that if other persons were in the apartment, they knew of the arrest, rested on the location of the arrest and the commotion which resulted from the search of the second-floor apartment.
case, whatever the merit of such a sweep where the police are otherwise lawfully on the premises, "[d]ifferent considerations come into play . . . when a defendant is arrested outside his residence and the government seeks to justify an entry into the home for a security check." 638 F.2d, at 531. Nevertheless, noting that other courts have permitted a sweep into the home in search of persons following an arrest outside,3 the Court of Appeals sustained the validity of the warrantless entry and initial search here based on nothing more than the officers' "reasonable belief" that there were additional persons in the apartment who were aware of petitioner's arrest.
outside his home and then take him inside for the purpose of conducting a warrantless search." 395 U.S., at 820. Indeed, our precedents can more reasonably be read as interpreting the Fourth Amendment to bar the warrantless entry of a residence predicated solely on the belief that persons on the premises, knowing of the arrest, might destroy evidence. See Vale v. Louisiana, 399 U.S. 30, 26 L. Ed.2d 409 (1970).
We have, of course, recognized that a warrantless entry is permissible in an exigent circumstance. See Mincey v. Arizona, 437 U.S. 385, 393, 2413 (1978). But even assuming that the need to preserve evidence could provide a basis for a finding of exigent circumstances sufficient to allow the police to enter a home without a warrant, cf. Schmerber v. California, 384 U.S. 757, 770, 1835 (1966), the Constitution surely requires a far more substantial showing of exigency than was made here: Not only must there have been probable cause to search, but there must also have been a " reasonable belief," based on articulable facts, that the destruction of evidence was imminent; and further, there must be the assurance that the emergency giving rise to the warrantless entry could not responsibly have been avoided. See United States v. Rosselli, 506 F.2d 627 (CA7 1974). Because from all appearances the warrantless entry in this case can be justified neither as a search incident to an arrest nor as compelled by exigent circumstances, and because the court below enunciated a broad exception to the warrant requirement not recognized by any decision of this Court, and which can all too easily become "enthroned into the rule," United States v. Rabinowitz, 339 U.S. 56, 80, 441 (1950) (Frankfurter, J. dissenting), I would grant certiorari and set this case for argument.
Footnote 1 "One characteristic of all opinions dissenting from the denial of certiorari is manifest. They are totally unnecessary. They are examples of the purest form of dicta, since they have even less legal significance than the orders of the entire Court which, as Mr. Justice Frankfurter reiterated again and again, have no precedential significance at all.
"Another attribute of these opinions is that they are potentially misleading. Since the Court provides no explanation of the reasons for denying certiorari, the dissenter's arguments in favor of a grant are not answered and therefore typically appear to be more persuasive than most other opinions. Moreover, since they often omit any reference to valid reasons for denying certiorari, they tend to imply that the Court has been unfaithful to its responsibilities or has implicitly reached a decision on the merits when, in fact, there is no basis for such an inference." Singleton v. Commissioner, 439 U.S. 940, 944-945, 338, 58 L. Ed.2d 335 (opinion of STEVENS, J., respecting the denial of the petition for writ of certiorari).
Footnote 2 "Wise adjudication has its own time for ripening." Maryland v. Baltimore Radio Show, Inc., 338 U.S. 912, 918, 255.
Footnote 3 The Court of Appeals' opinion does refer to evidence suggesting that petitioner had rented the fourth-floor apartment, but does not expressly resolve the issue. It is sound practice, however, to deny a petition for certiorari when the facts do not firmly establish that the petitioner has standing to raise the question presented. Cf. Mental Hygiene Dept. of Cal. v. Kirchner, 380 U.S. 194, 200, 875.
Footnote 4 Justice BRENNAN suggests, in his dissenting opinion, that the Court of Appeals has enunciated a broad exception to the warrant requirement that "not only authorizes the police to enter a home without a warrant in circumstances far less compelling than we have recognized, but permits law officers, in determining the time and manner of executing an arrest, to contrive their own exigency and thereby avoid the necessity of procuring a warrant before entering the home." Post, at 983. In my judgment, this is not a fair characterization of the cautious and circumscribed opinion written by Judge Kearse.
"Although the facts which established probable cause to arrest in this case also suggested the required relevance and likely success of a test of petitioner's blood for alcohol, the question remains whether the arresting officer was permitted to draw these inferences himself, or was required instead to procure a warrant before proceeding with the test. Search warrants are ordinarily required for searches of dwellings, and, absent an emergency, no less could be required where intrusions into the human body are concerned. The requirement that a warrant be obtained is a requirement that the inferences to support the search 'be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.' Johnson v. United States, 333 U.S. 10, 13-14 [, 368-369]; see also Aguilar v. Texas, 378 U.S. 108, 110-111 [, 1511-1512]. The importance of informed, detached and deliberate determinations of the issue whether or not to invade another's body in search of evidence of guilt is indisputable and great.
"The officer in the present case, however, might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened 'the destruction of evidence,' Preston v. United States, 376 U.S. 364, 367 [, 883]." Id., at 770.
[Footnote 1] As Justice STEVENS notes, ante, at 977, Judge Kearse's opinion for the Court of Appeals describes in considerable detail the factual background pertinent to petitioner's claim here. In addition, the opinion clearly states the legal standard believed applicable, and applies that standard in appraising the police conduct in question and the ruling of the District Court. But this in my view makes this case a particularly good vehicle for the exercise of our certiorari jurisdiction: the facts developed by the Court of Appeals suggest that a more restrictive standard respecting the circumstances under which warrantless entry of a home is constitutionally permitted would have produced a contrary ruling on petitioner's motion to suppress; and the factual analysis of the Court of Appeals would be most helpful to this Court in defining a standard meaningful to police officers in the execution of their responsibilities, and capable of consistent application in the courts.
[Footnote 2] See United States v. Gardner, 627 F.2d 906 (CA9 1980); United States v. Spanier, 597 F.2d 139 (CA9 1977); United States v. Cravero, 545 F.2d 406 (CA5 1976), cert. denied sub nom. Miller v. United States, 429 U.S. 1100 (1977); United States v. Cepulonis, 530 F.2d 238 (CA1), cert. denied, 426 U.S. 908 (1976); United States v. Rich, 518 F.2d 980 (CA8 1975), cert. denied, 427 U.S. 907 (1976); United States v. Looney, 481 F.2d 31 (CA5), cert. denied, 414 U.S. 1070, 38 L. Ed.2d 476 (1973); United States v. Cristophe, 470 F.2d 865 (CA2 1972), cert. denied sub nom. Panica v. United States, 411 U.S. 964 (1973). See also Chimel v. California, 395 U.S., at 775 (WHITE, J., dissenting) (possible removal of evidence should justify search following arrest in residence). But see United States v. Gamble, 473 F.2d 1274 (CA7 1973).
[Footnote 3] Several of the cases have allowed a security search where police possessed a reasonable apprehension of violence from within the house as they executed an arrest outside. See United States v. Baker, 577 F.2d 1147 (CA4), cert. denied sub nom. Weinstein v. United States, 439 U.S. 850 (1978); United States v. Bowdach, 561 F.2d 1160 (CA5 1977); Hopkins v. Alabama, 524 F.2d 473 (CA5 1975). At least two federal cases other than this one have ratified warrantless security searches premised solely on an asserted desire to preserve evidence. See United States v. Fulton, 549 F.2d 1325 (CA9 1977); United States v. McLaughlin, 525 F.2d 517 (CA9 1975), cert. denied, 427 U.S. 904 (1976). See also Thomas v. Parett, 524 F.2d 779 ( CA8 1975); United States v. Rubin, 474 F.2d 262 (CA3), cert. denied sub nom. Agran v. United States, 414 U.S. 833 ( 1973).

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You agree that the Software will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations (collectively the “Export Laws”). In addition, if the Software is identified as export controlled items under the Export Laws, you represent and warrant that you are not a citizen, or otherwise located within, an embargoed nation (including without limitation Iran, Iraq, Syria, Sudan, Libya, Cuba, North Korea, and Serbia) and that you are not otherwise prohibited under the Export Laws from receiving the Software. All rights to use the Software are granted on condition that such rights are forfeited if you fail to comply with the terms of this Agreement.
13. GOVERNING LAW AND DISPUTE RESOLUTION.
This Agreement will be governed by and construed in accordance with the substantive laws in force in the State of New York. This Agreement will not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. All disputes arising from or related to your use of the Software shall be resolved through binding, confidential arbitration, which is the sole and exclusive remedy for any dispute. Such arbitration shall be conducted in accordance with the American Arbitration Association’s Consumer Procedure Rules. (The arbitration need not be conducted, however, by or under the auspices of the American Arbitration Association if the parties mutually agree to another arbitrator). There shall be one arbitrator selected by mutual agreement of the parties. If the parties are unable to agree to an arbitrator, either party may request that the American Arbitration appoint an arbitrator. Any dispute as to whether a specific issue is covered by this EULA or is subject to arbitration will be determined by the arbitrator. The arbitration shall be conducted in the complaining party’s home jurisdiction unless the amount demanded exceeds $10,000, in which case the arbitration shall occur in Manhattan County, New York. The arbitrator will determine whether substantive motions or discovery will be permitted, and will determine the scope of such matters, provided that the arbitrator will authorize the discovery and enter the prehearing orders necessary to ensure a fair, private hearing. Arbitration awards may be confirmed by any court of competent jurisdiction.
If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms. This Agreement shall not prejudice the statutory rights of any party dealing as a consumer. This Agreement may only be modified by a writing signed by an authorized officer of ESG Updates may be licensed to you by ESG with additional or different terms. This is the entire agreement between ESG and you relating to the Software and it supersedes any prior representations, discussions, undertakings, communications or advertising relating to the Software.
15. NOTICE TO U.S. GOVERNMENT END USERS.
The Software and Documentation are “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through §227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States. For U.S. Government End Users, ESG agrees to comply with all applicable equal opportunity laws including, if appropriate, the provisions of Executive Order 11246, as amended, Section 402 of the Vietnam Era Veterans Readjustment Assistance Act of 1974 (38 USC 4212), and Section 503 of the Rehabilitation Act of 1973, as amended, and the regulations at 41 CFR Parts 60-1 through 60-60, 60-250, and 60-741. The affirmative action clause and regulations contained in the preceding sentence shall be incorporated by reference in this Agreement.
If you are a business or organization, you agree that upon request from ESG or ESG’s authorized representative, you will within thirty (30) days fully document and certify that use of any and all ESG Software at the time of the request is in conformity with your valid licenses from ESG.
Refund requests from purchases placed directly at ESG’s purchase page (via online download or on CD) must be requested through our payment processor Esellerate.net. ESG has authorized Esellerate.net to process all the refund requests from our subscribers. You must adhere to the following guidelines and initiate the refund request within 30 days from the date of purchase in accordance with our policy below. In addition, ESG has also authorized Esellerate.net to also provide a refund outside the 30 day period where it is required by law to do so.
17.1. All requests for refunds must be made to Esellerate.net within 30 days of the date ESG and Esellerate.net first made the software available to you for download (the “Purchase Date”). You can accomplish this by either contacting Esellerate.net at 1-800-999-2734 (for international callers 1-719-576-0123), or email Esellerate.net at shopper@esellerate.net. ESG and Esellerate.net will also provide you with a refund where it is required to do so by law.
17.2. ESG is not responsible for lost or misdirected mail, delays for downloading, or other communication system delays.
17.3. You must provide ESG and/or Esellerate.net with sufficient information to be able to identify your transaction, such as the order number and/or e-mail address and/or date of transaction given to you when the download was ordered.
17.5. ESG and Esellerate.net will only refund the amount you paid for the software plus any appropriate taxes charged with that order. ESG will not refund any shipping or handling charges that may have been charged to you in respect of your return of your CD to Esellerate.net.
17.6. Refunds will be made in the same manner as you purchased the product. For example, if you purchased the product by Paypal, ESG will send your refund to your Paypal account. If you purchased by credit card, your credit card account will be credited.
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