The assignment is to prepare a rough draft of the appellee's brief in opposition to the appellant's appeal of the trial court's denial of the motion to suppress evidence seized from appellant's suitcase. The plaintiff/appellee is the United States; the defendant/appellant is Arnold J. Stewart. The trial court ruled that the suitcase had been abandoned and, therefore, the defendant did not have a reasonable expectation of privacy protected by the Fourth Amendment in the suitcase.

Numerous cases deal with the issue of abandonment of personal property, and an appellate brief usually would include references to at least several cases. This assignment is an exercise in preparing a very simple, single-issue appellate brief and is designed to acquaint students with the basic elements of such a brief. Therefore, when performing this assignment, use only the constitutional and case law presented in the assignment; do not perform additional research. Assume the cases have not been overturned or modified by subsequent court decisions.

Follow the format presented in Section IV of this chapter. The caption is presented in the following text. Prepare a separate statement of the case and statement of the facts. Information necessary for preparing the brief follows. Note that the transcript pages (references to the trial court record) and docketing pages are referenced in parentheses. When drafting the brief, include the references to the record in the brief. References to the case and statutory law also follow. When citing the United States v. Jones case, use the citation instructions presented in Assignment 7.

Facts: On October 15, 2012, Arnold Stewart arrived at the airport an hour and fifteen minutes prior to his scheduled flight. (Tr. at 6) He was going to visit a friend in Chicago. (Tr. at 7) He was carrying one suitcase that he intended to carry on the flight. (Tr. at 7) His flight was scheduled to leave from gate 9, but he decided to wait at gate 8 because it wasn't so crowded. (Tr. at 8) After a few minutes, he decided to get something to eat. (Tr. at 8) He approached Larry Holt, who was also waiting at gate 8, and asked if Holt would watch his suitcase. (Tr. at 8) Stewart did not know Mr. Holt. (Tr. at 8) Holt asked him how long he would be gone and Stewart replied, "Just a few minutes." (Tr. at 9) Holt said, "Well, ok." (Tr. at 9) Stewart then walked off. (Tr. at 9) Across from where they were seated were several coin-operated lockers where Stewart could have placed the suitcase. (Tr. 9-10) Stewart went to the food bar. (Tr. at 10) There was a long line, and he wasn't served for 20 minutes. (Tr. at 10) On the way back to his seat, he ran into an acquaintance and talked to him for several minutes. (Tr. at 10) He didn't return to his seat in the gate area for 45 minutes. (Tr. at 13)

Meanwhile, after 20 minutes, Mr. Holt became concerned. (Tr. at 41) He thought, "Where is that guy? I wonder if this suitcase contains a bomb." (Tr. at 41) The more he thought about it, the more concerned he became. (Tr. at 41-42) He contacted airport security and expressed his concerns. (Tr. at 42) Approximately a minute later, Officer Robert Dwyer arrived. (Tr. at 42) There was no nametag on the suitcase, no airline claim ticket attached, and no evidence of ownership on the exterior. (Tr. at 71) In such situations, airport policy is that the suitcase should be immediately inspected, then taken to the security office. (Tr. at 72) Officer Dwyer inspected the suitcase and its contents at the scene. (Tr. at 72) Upon opening the suitcase, he found a large bag that contained 40 smaller bags of a white powdery substance. (Tr. at 73) The substance was later identified as heroin. (Tr. at 122) The suitcase was taken to the security office and federal officers were called. (Tr. at 74)

Approximately 45 minutes after he left, Stewart returned to his seat. (Tr. at 13) Holt informed him that he thought Stewart had abandoned the suitcase so he turned it over to airport security. (Tr. at 44) Stewart left the gate area, went to the ticket counter, and asked for information concerning the next flight. (Tr. at 14) The ticket counter is next to the security office. (Tr. at 75) Stewart never entered the office to inquire about his suitcase. (Tr. at 75) He was arrested when he went to the gate area and attempted to board his flight. (Tr. at 91)

Information for Statement of the Case: On November 21, 2012, Arnold J. Stewart was indicted by a federal grand jury sitting in the District of Utah on charges of possession with intent to distribute more than 100 grams of heroin in violation of 21 U.S.C. 841(a)(1) and 841(b)(1)(B). (Doc. at 5) On January 7, 2013, Stewart filed a motion to suppress the physical evidence. (Doc. at 18) On February 14, 2013, the motion was denied. The trial court found:

Under the circumstances, for all intents and purposes the suitcase was abandoned. The defendant did not express a possessory interest in the suitcase at any time after he learned its location.

Having been abandoned, the defendant had no expectation of privacy in it or its contents.

(Tr. at 40-41). On March 6, 2013, defendant entered a conditional guilty plea, reserving his right to appeal the suppression ruling. (Doc. at 22) On April 27, 2013, the court sentenced Stewart to imprisonment for 60 months, to be followed by a three-year term of supervised release. (Doc. at 55) Stewart filed his notice of appeal on April 29, 2013.

Constitutional and Case Law: Amendment IV, U.S. Constitution

United States v. Arango, 912 F.2d 441 (10th Cir. 1990). All you need to know for the purposes of this assignment is that the Arango case stands for the proposition that one who has the right to possession of personal property has the right to exclude others from searching it.

United States v. Jones, 707 F.2d 1169 (10th Cir. 1983). See Appendix A.

Prior Related Appeals: There are no prior or related appeals in this case.

Caption:

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

NO. 2009-123

UNITED STATES OF AMERICA

Plaintiff/Appellee,

vs.

ARNOLD J. STEWART,

Defendant/Appellant.

APPEAL FROM THE UNITED

STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

ANSWER BRIEF OF APPELLEE