Petition — MacKenzie v. United States

SUPREME COURT |

OF THE UMTED STATES

October Term

1974

DUNCAN SCOTT MACKENZIE and

RICHARD STEVEN BONDAR,

Petitioners

vs.

UNITED STATES OF AMERICA,

Respondent

eS

Pi: TITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SAMUEL FRIZELL ROBERT W. FRASER

Attorney at Law Attorney at Law

838 North Van Ness 433 Civic Center Drive West

Santa Ana, California $2761 Santa Ana, California 92701

Telephone: 714); 835-3529 Telephone: [714] 558-8888

Attorneys for Petitioners

— a — Fr me ec ce ee emer te te

J CALLAGHER P. nted Briefs

INDEX TO PETITION

Page

Table of Authorities ii

PETITION

Proceedings Below 1

Jurisdiction 1

Questions Presented 2

Constitutional and Statutory

Provisions Involved 2

Procedural History 5

Statement of the Facts 6

Reasons for Granting the Writ 16

The decision of the Court below cannot be

reconciled with the decisions of the Supreme

Court in Coolidge v. New Hampshire, 493 U.S.

443; and in Preston v. United States, 376 U.S.

364; and has so extended the rule of Chambers v.

Maroney, 399 U.S. 42 that fourth amendment

protection virtually disappears in the presence of

an automobile. |

The Court below has misused the doctrine of

“founded suspicion” to abrogate appellant’s

rights under Miranda v. Arizona, 383 U.S. 436.

APPENDIX A

lll. The statutes under which petitioners were

convicted are unconstitutiona!.

CONCLUSION

APPENDIX A

TABLE OF AUTHORITIES

Page

Constitution, United States, Amendment 4 2

Constitution, United States, Amendment 5 2

Statutes

United States Code

21 United States Code Section 841 3

21 United States Code Section 846 3

28 United States Code Section 1254 4

Cases

Brinegar v. United States, 338 U.S. 160 22

Cady v. Dombrowski, 413 U.S. 433 20

Carroll v. United States, supra 23

Chambers v. Maroney, 399 U.S. 42 18

Coolidge v. New Hampshire, 403 U.S. 443 17

Henry v. United States, 361 U.S. 98 21, 23

Lowe v. United States, 407 F. 2d 1391, 1393-94 21

Miranda v. Arizona, 384 U.S. 436 23

Preston v. United States, 376 U.S. 364 20

United States v. Church, 490 F. 2d 353 16

United states v. Cohn, 472 F. 2d 29 17

United States v. Sherman, 430 F. 2d 1402 16

SUPREME COURT

OF THE UNITED STATES

DUNCAN SCOTT MACKENZIE and

RICHARD STEVEN BONDAR, Petitioners

v.

UNITED STATES OF AMERICA, Respondent

Petitioners, DUNCAN SCOTT MACKENZIE and

RICHARD STEVEN BONDAR, by their counsel Robert W.

Fraser and Samuel Frizell, pray that a writ of certiorari

issue to review the judgment of the United States Court

of Appeals for the Ninth Circuit as that judgment affirms

their guilt of possession of marijuana with intent to

distribute, in violation of Title 21 U.S.C. Section 841 (a)(1)

and conspiracy to possess marijuana with intent to

distribute in violation of Title 21 U.S.C. Section 846.

PROCEEDINGS BELOW

In a memorandum decision, a copy of which is

attached as Appendix A, pages 31-34, petitioners’

convictions were affirmed.

JURISDICTION

The judgment of the Court of Appeals was entered on

March 25, 1975. The jurisdiction of this Court is invoked

pursuant to 28 U.S.C. Section 1254.

QUESTIONS PRESENTED

1. Is the warrantless search of an automobile valid in

the absence of a showing that it was impractical to obtain

a search warrant?

2. Can an arrested suspect be interrogated without a

Miranda warning when officers have probable cause to

believe the suspect unlawfully possesses marijuana at

the time of the interrogation?

3. Are the statutes under which Petitioners were

convicted constitutional?

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The following constitutional and statutory provisions

are involved in this case:

United States Constitution, Amendment 4:

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, snali not be

violated, and no warrants shall issue, but upon

probable cause, supported by oath or affirmation,

and particularly describing the place to be searched,

and the persons or things to be seized.

United States Constitution, Amendment 5:

No person shall be held to answer for a Capital,

or otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury, except

in cases arising in the land or naval forces, or in

the Militia, when in actual service in time of War or

public danger; nor shall any person be subject for

the same offense to be twice put in jeopardy of life

or limb nor shali be compelled in any criminal

case to be a witness against himself, nor be

deprived of life, liberty, or property, without due

process of law; nor shall private property be take.

for public use, without jus: compensation.

Title 21, U.S.C. Section 841 {a)[1][2]:

(a) Except as authorized by this subchapter, it

shall be unlawful for any person knowingly or

intentionally —

(1) to manufacture, distribute, or dispense, or

possess with intent to manufacture, distribute,

or dispense, a controlled substance, or

(2) to create, distribute, or dispense, or

possess with intent to distribute or dispense, a

counterfeit substance.

Title 21, U.S.C. Section 846:

Any person who attempts or conspires to

commit any offense defined in this subchapter is

punishable by imprisonment or fine or both which

may not exceed the maximum punishment

prescribed for the offense, the commision of

which was the object of the attempt or conspiracy.

Title 28, U.S.C. Section 1254:

Cases in the courts of appeals may be reviewed

by the Supreme Court by the following methods:

(1) By writ of certiorari granted upon the

petition of any party to any civil or ciminal case,

before or after rendition of judgment or decree;

(2) By appeal by a party relying on a State

Statute held by a court of appeals to be invalid as

repugnant to the Constitution, treaties or laws of

the United States, but such appeal shall preclude

review by writ of certiorari at the instance of such

appellant, and the review on appeal shall be

restricted to the Federal questions presented:

(3) By certification at any time by a court of

appeals of any question of law in any civil or

criminal case as to which instructions are desired,

and upon such certification the Supreme Court

may give binding instructions or require the entire

record to be sent up for decision of the entire

matter in controversy.

PROCEDURAL HISTORY

This is a criminal prosecution for violations of 21

USC§841 (a) (1), possession with intent to distribute

marijuana and 21 USC §846, conspiracy to possess with

intent to distribute marijuana. The overt act alleged was

that appellant MACKENZIE drove a vehicle in the

southern district of California. (Clerk's Transcript page 1

— hereafter the clerk's transcript will be abbreviated to

C.T.).

Appeliants were arrested on January 25, 1974 and

indicted on February 6, 1974 in the southern district of

California.

Appellants were duly arraigned (C.T. 4), discovery

proceedings were completed (C.T. 8), and appeilants

moved the Court for an order suppressing evidence

seized from a 1968 Chevrolet driven by appellant

MACKENZIE, to stuippress observations made by govern-

ment agents of the vehicle from and at the time it was

stopped; and of items seized from a 1959 Chevrolet

Apache driven by appellant BONDAR (C.T. 15). The

motion to suppress was made on the grounds that the

searches and seizures were made without judicial

warrants and were unreasonable within the meaning of

the Fourth Amendment to the United States Constitution.

The motion was heard by the Court on Monday, May 6,

1974, and denied (C.T. 40).

The case was Called for trial on June 20, 1974; a jury

was chosen and sworn; and heard testimony though

June 20 and June 21, 1974 (C.T. 55). A motion for

acquittal was made and denied at close of appellants’

case (Reporter's Transcript pages 219-221 — hereafter the

Reporter's Transcript will be abbreviated to R.T.). On

June 24, 1974 the jury returned a verdict of guilty on both

counts against both appellants (C.T. 86). A motion in

arrest of judgment was made on grounds the statute was

unconstitutional (C.T. 88) which was denied. Notice of

appeal was duly filed and perfected (C.T. 94). Appellant

MACKENZIE was sentenced to two years in prison (C.T.

93), and appellant BONDAR committed under the Youth

Correction Act (C.T. 93). Both appellants were released

on bail. The transcript ov) appeal was duly transmitted to

the Ninth Circuit Court of Appeals, docketed, and briefs

filed. The Court of Appeals refused argument and

submitted the case. It's memorandum decision issued on

March 25, 1975, affirming the judgments.

STATEMENT OF THE FACTS

On January 25, 1974 John R. Pulley, a Special Agent

for the Federal Drug Enforcement Administration, was

working his duty station in Calexico, California (R.T.

80-81). While northbound on Heber Avenue in Calexico,

California, Pulley’s attention was drawn to a 1968

Chevrolet Impala, four door hardtop, black over yellow,

California License WXK 949 because the vehicle was

sitting a little lower in the rear than he thought it should

and the rear tires appeared to be bulging on the sidewalls

(R.T. 82-83). The vehicle was approximately two and one

half blocks from the Mexican border facing southbound

on Heber (R.T. 83). Pulley looked in the vehicle and could

see no personal belongings or anything other than the

motor vehicle registration receipt which was in the open

glove compartment (R.T. 84).

The doors were locked and the suspension of the

vehicle was “beefed up” with air suspension type shock

absorbers (R.T. 85-86). Pulley established a surveillance

of the vehicle at about 11:30 A.M. (R.T. 86) and during

this surveillance noticed a Mexican female approach the

vehicle at approximately 12:10 P.M. (R.T. 87) and about

twenty minutes later remove a parking ticket under the

windshie!d wiper of the vehicle (R.T. 88). Two or three

minutes later she rode by as a passenger in a 1974

Mustang with Baja California license plates (R.T. 87-88).

There were two other Drug Enforcement Administration

units in the area, who observed the Mustang until it

crossed into Mexico (R.T. 89).

Special Agent Walker relieved Pulley at about 2:00

P.M. so Pulley could get lunch (R.T. 90). Pulley remained

on his surveillance until approximately 6:50 P.M. at

which time he drove to his office and was having a cup of

coffee some seven blocks away (R.T. 90). At about 7:00

P.M. Pulley received information that there was activity at

the subject vehicle (R.T. 90) at which time he returned.

When Pulley returned the vehicle was at Second Avenue

westbound, crossing the intersection of Holland, and

Pulley began following the vehicle (R.T. 93). The vehicle

proceeded until it reached Highway 98, approximately

twelve blocks away from where Pulley began following it.

During his pursuit of the subject vehicle he noticed

another vehicle, a 1968 Chevrolet Pane! Truck, proceeu-

ing in the same direction as the subject vehicle (R.T.

95-96). Pulley pulled in behind the panel truck in the left

turn lane from northbound Imperial Avenue onto Highway

98 and saw the driver look in his rearview mirror (R.T. 97).

Pulley pulled slightly to the right so that he was not

visible to the side rearview mirror and saw the driver of

the panel truck !ook up towards his rearview mirror (R.T.

98). At the time Pulley was foilowing the subject vehicle

there were four other units in the area — all of whom took

up the pursuit (R.T. 98). In addition to the ground units

there was an aircraft carrying Special Agent Pettingill

(R.T. 99). Pulley advised Pettingil! that he was going to

make a left turn on a particular road and that the third

vehicle in front of him would be the panei truck. Pulley

made his left turn off of Highway 98 (R.T. 100).

Pettingill was an observer in the aircraft flying over the

area and did see a vehicle make a ieft turn onto Clark

Rovd. He, by radio, requested another agent, one Polish,

to hit his brake lights several times (R.T. 198). The

ooo

vehicles were westbound on Highway 98 in light to

moderate traffic (R.T. 198). Approximately twenty miles

out of Calexico on Highway 98 Pettingill observed the

second vehicle which was the subject of this surveillance

(the panel truck) to hit the high beams on his headlights

about twice at a time when the two suspect vehicles were

seventy-five to one hundred yards apart. He saw no

vehicles at that point coming from the eastern direction

towards the vehicles he was watching (R.T. 199). Signals

from the agents’ vehicles to the plane were also given by

flashing the agents’ vehicles bright lights (R.T. 212).

The plane in which Pettingill was riding travelled

approximately one hundred and twenty miles per hour,

going approximately twice the speed of the ground

vehicles (R.T. 202). The plane orbited the vehicles in a

clockwise direction for approximaiely twenty minutes

(R.T. 202). The aircraft from which Pettingill was making

his observations was about five thousand feet in altitude

(R.T. 205).

After making the left turn off the hignway, Agent Pulley

picked up Deputy Wallace of the Imperial County Sheriff's

Department and then continued in a westerly direction on

Highway 98. Pulley ordered the agents involved in the

surveillance to stop the vehicles if they continued

westbound on Interstate 8. Accordingly, both vehicles

were stopped when they got on Interstate 8 westbound;

Pulley stopping the 1968 Chevrolet with his red light and

siren (R.T. 102) and some of the other agents stopping

the panel truck which passed the Chevrolet automobile

and went on down the road (R.T. 103). Appellant

MACKENZIE was driving the 1968 Chevrolet (R.T. 104).

Pulley displayed his badge, stated he was a federal

agent, asked MACKENZIE to step out of the vehicle,

asked him whose car it was, and asked if he had

contraband on the truck. MACKENZIE said the vehicle

was a friend's and that he had no countraband and

refused the request to search the truck (R.T. 104). Pulley

then removed the keys from the ignition, opened the

trunk, and observed that the trunk was completely full of

packages which, in his opinion, contained marijuana

(R.T. 105). There were tw) hundred eighty-six kilogram

packages, of which ten were retained and entered into

evidence as Government’s Exhibit No. 2(R.T. 106). In the

Calexico area a kilogram of marijuana in a large quantity

would sell for eighty to one hundred dollars, and the price

would increase the further one got from the border (R.T.

107). The marijuana is usually broken into small packages

called a baggy or lid weighing approximately one cunce

prior to being used (R.T. 108).

Agent Walker brought Appellant BONDAR from the

stopped panel truck back to the 1968 Chevrolet (R.T. 109).

Deputy Camarena of the Imperial County Sheriff's

Office returned the 1968 Chevrolet back to the DEA Office

in Calexico where the marijuana was unloaded, counted,

10

marked, initialed and boxed (R.T. 110).

Under cross-examination Agent Pulley stated that he

could see nothing in the trunk compartment by looking

through the windows of the car as it was parked on the

street (R.T. 116).

Pulley also testified on cross-examination that he was

familiar with the smell of marijuana, but that he could not

smell any around the car nor could he smell marijuana by

sniffing at a partially opened window (R.T. 137) as it was

parked in Calexico. He further testified that the

automobile had come across the border at 10:07 on that

morning (R.T. 125). The government sought to present

evidence that Agent Pulley obtained the assistance of a

specially trained dog, which indicated by pawing at the

trunk of the car that marijuana was contained therein. The

Court refused to permit this evidence to be presented to

the jury (R.T. 128-129). The subject 1968 Chevrolet was

registered to a man named Donald E. Martin in

Huntington Beach (R.T. 114). The wrappers from the

marijuana that was taken from the trunk were submitted

for fingerprint analysis at the FBI Fingerprint Identify

Bureau in Washington, D.C. (R.T. 133), but neither of the

Appellants’ fingerprints were found upon the wrappers

(R.T. 216).

Agent Walker of the Drug Enforcement Administration

also worked in Calexico, California (R.T. 143). He

assisted Agent Pulley on the surveillance of the 1968

11

Chevrolet, beginning at about 12 noon (R.T. 144) Walker

alsO was on Surveillance of the vehicle at 7 P.M. on

January 25, 1974. He had relieved Agent Pulley, and

Pulley had gone back to the office (R.T. 146). At about 7

P.M. Appellant MACKENZIE approached the driver's side

of the automobile, entered the vehicle and drove scuth to

Second Street then proceeded west on Second toward

Imperial (R.T. 146-147). Walker was one of several cars

following MACKENZIE (R.T. 147). Walker had first seen

the Chevrolet Panel Truck, driven by Appellant BONDAR,

in Calexico, northbound on Imperial Avenue. The 1968

Chevrolet was in front of the panel truck as they were

northbound on Imperial.

Walker using his red light and sirens stopped the panel

truck on Interstate 8 immediately after the 1908 Chevrolet

driven by the Appellant MACKENZIE was stoppcd (R.T.

148). Walker identified himself as a Federal Narcotics

Agent to Appellant BONDAR, told him he was

conducting a narcotics investigation (R.T. 149) and asked

him “who his friend was in the vehicle just to the east”

(R.T. 153). Objection was made at this point on the

grounds that Appellant BONDAR had not been advised

nor had he waived his rights set forth by the United States

Supreme Court in Miranda v. Arizona (R.T. 150). This

objection was overruled and Walker testified that

Appellant BONDAR replied that he “didn’t have any friend

or denied any knowledgs of knowing anyone in the

12

vehicle” (R.T. 153). Appellant BONDAR was taken back to

the other vehicle where Agent Pulley placed him under

arrest (R.T. 153).

Appellant BONDAR’s vehicle, the panel truck, was

searched in Calexico after it was returned to the DEA

Offices there. Certain documents, letters addressed to

Appellant MACKENZIE, (Government Exhibits 3, 4, and 5)

were found in the BONDAR vehicle (R.T. 154). Admission

of these items in evidence was objected to, but the

objection was overruled (R.T. 155 and 160).

When Appellant MACKENZIE first approached the car,

he did not open the trunk, nor did he look at the shock

absorbers (R.T. 162). Agent Walker had watched the car

off and on from noon until 7:00 P.M., and on one

occasion sniffed at the partially opened window and

smelled nothing unusual (R.T. 164). Walker did know

what marijuana smelied like (R.T. 164).

Agent Walker testified that from the time he turned on

his red light and his siren, just prior to stopping the panel

truck, that Appellant BONDAR was not free to proceed as

he wished (R.T. 176). The panel truck was given a cursory

search on the highway at the location where it was

stopped for any obvious contraband or possible

weapons. An hour to an hour and fifteen minutes later

after it had been taken back to the DEA Office the vehicle

was thoroughly searched. No weapon or no countraband

was ever found in the vehicle (R.T. 177). BONDAR was

13

placed under arrest by Agent Pulley within a few minutes

after the vehicle stop was made (R.T. 178). At the time

BONDAR was stopped, he was a suspect according to

Agent Walker (R.T. 183).

Deputy Sheriff Camarena of the Imperial County

Sheriff's Department was riding with Agent Pulley in his

vehicle (R.T. 185). He saw the kilo bricks of marijuana in

the trunk of the 1968 Chevrolet, and drove the vehicle

approximately thirty-five miles back to Calexico. He

described it as riding very hard, and having steering that

was lighter than normal (R.T. 186). He testified that he

noticed a smell of unburned marijuana while inside the

automobile (R.T. 187).

The parties all stipulated that the bricks found in the

trunk of the 1968 Chevrolet were in fact marijuana and

that the bricks which were the subject of Government's

Exhibit 2 remained in the custody of the United States

since their seizure by Agent Pulley until they were

presented as evidence to the Court. (R.T. 217).

With this evidence the government rested and motions

for judgment of acquittal were made by both appellants

(R.T. 219-220). Both motions were denied (R.T. 221).

The defense consisted primarily of character witnesses

concerning Appellant MACKENZIE’s character. In addi-

tion to the character witnesses, Mr. Tom Shea-han

testified than he saw Appellants in Elsinore at

approximately 10:00 A.M. or January 25, 1974, at the

14

time the load vehicle was crossing the border (R.T.

237-238). A motion to strike this evidence as irrelevant

and prejudicial to Appeilant BONDAR was made and

denied (R.T. 240).

The Court took judicial notice that the distance from

Elsinore to Calexico was between one hundred and fifty

and two hundred miles (R.T. 270).

15

REASONS FOR GRANTING THE WRIT

!

THE DECISION OF THE COURT BELOW

CANNOT BE RECONCILED WITH THE DECIS-

IONS OF THE SUPREME COURT IN COOLIDGE

v. NEW HAMPSHIRE, 493 U.S. 443; AND IN

PRESTON V. UNITED STATES, 376 U.S. 364;

AND HAS SO EXTENDED THE RULE OF

CHAMBERS V. MARONEY, 399 U.S. 42 THAT

FOURTH AMENDMENT PROTECTION VIR-

TUALLY DISAPPEARS IN THE PRESENCE OF

AN AUTOMOBILE.

Although the Supreme Court has held that the word

“automobile” is not a talisman in whose presence the

Fourth Amendment fades away and disappears, there is a

long line of cases in the Ninth Circuit cited by the United

States in its brief to the Court of Appeals which

essentially holds just that. This line of cases is

exemplified by United States v. Church, 490 F. 2d 353 in

which a warrantless search of an automobile was

Sustained even though it occurred approximately four and

one-half hours after federal agents initiated surveillance

and even though a U. S. Magistrate's office was only one

block away. This same theory pervades the holdings in

United States v. Sherman, 430 F. 2d 1402 where a

warrantless search was sustained though agents had

16

-—-

My

twelve hours in which to procure a search warrant, and in

United States v. Cohn, 472 F. 2d 29 in which a

warrantless search of a vehicle was upheld after a

nineteen hour vigil.

in the case now before the Court, federal agents

established surveillance of the MACKENZIE vehicle, at 11

a.m. in the morning where it was parked on the streets of

Calexico, California. The surveilling agent had full time

assistance of another agent from and after 2 P.M. and the

vehicle was not driven away until 7 P.M. A United States

Magistrate was located in E! Centro, a distance of some

ten miles from Calexico, and a California Magistrate

empowered to issue a search warrant was located in

Calexico itself. The agents actually engaged in the

surveillance also had several other agents with cars in the

vicinity, and were able to call on Sheriff's Deputies with

cars and airplanes when needed. There was simply no

evidence presented to the Court to create a factual

exception to the Fourth Amendment requirements that a

search warrant be obtained before a search.

This Court in Coolidge v. New Hampshire, 403 U.S. 443

held:

“Thus the most basic constitutional rule in this

area is that searches conducted outside the judicial

process without prior approval by judge or magis-

trate, are per se unreasonable under the Fourth

Amendment — Subject only to a few specifically

Established and weil delineated exceptions.”

403 U.S. at 454-5; 91S. Ct. at 2032)

17

The burden is upon the government to show exigent

circumstances which would justify the failure to obtain a

warrant. There is not a scintilla of evidence in the record

which justifies this failure. The agents had the necessary

probably cause to search 8 hours prior to the search and

there were at least two agents involved in the full time

Surveillance of the subject vehicle for a pericd of five

hours as it was parked on the streets of Calexico. There

were two magistrates within minutes away, and no

showing was made that it was impractical to obtain a

search warrant from one of these magistrates.

The holding in Chambers v. Maroney, 399 U.S. 42: 90

S. Ct. 1975 is illustrative of a permissible warrantless

search:

: o & ewe exigent circumstances justify the

warrantless search of an automobile stopped on

the highway where there is probably cause,

because the car is movable, the occupants are

alerted, and the car’s contents may never be

found again if a warrant must be obtained. The

opportunity to search is fleeting.”

The only similarity in the case now before the Court

and that before the Court in Chambers v. Maroney, supra,

is the fact that an automobile is involved. The opportunity

to search the MACKENZIE vehicle in the case now before

18

the Court was not fleeting. This opportunity existed for at

least eight hours prior to the time the vehicle was moved

by appellant MACKENZIE.

The record reflects a callous denial of Fourth

Amendment rights to appellants. The federal agents

involved were able to get relief from the surveillance

in order to get lunch, and later to get coffee, but they

could not find the necessary time to comply with the

Fourth Amendment and get a search warrant.

With the exception of the word “automobile” there is

nothing in the record to excuse this warrantless search

and appellants submit that. under the line of cases cited

by the government, the word “automobile” truly is a

talisman in whose presence Fourth Amendment rights

totally dissipate.

The search of the BONDAR vehicle is even less

constitutionally defensible than the search of the

MACKENZIE vehicle. In MACKENZIE, at least, the

officers had some evidence that the vehicle contained

contraband. The circumstances surrounding it's appear-

ance and the indication shown by Rex, the local

marijuana sniffing dog, could, arguendo, give the officers

probable cause for believing that the MACKENZIE vehicle

contained contraband.

However, when the BONDAR vehicle was stopped on

the highway and its driver arrested, the officers had no

evidence whatsoever, either objective or subjective, that

19

the vehicle contrained any contraband or any other item

susceptible of seizure. After BONDAR’s arrest, his

vehicle was driven some thirty miles back to the DEA

Offices before it was searched. This activity is forbidden

by the holding in Preston v. United States, 376 U.S. 364;

84 S. Ct. 881. The Court of Appeals held that Preston,

supra, was not applicable to the BONDAR vehicle search

because Preston applied only to attempts to justify a

search as incident to an arrest. The Court of Appeals held

that in this case the Trial Court upheld the search

because it found the officers had probably cause to

search the vehicle at the time they arrested BONDAR.

Yet, the record is devoid of any evidence whatsoever of

probably cause that the vehicle contained any seizabie

items of contraband or other instrumentalities of crime. If

the officers can justify the search of the BONDAR vehicle

at all it must be justified on the grounds that it was

searched as an incident of BONDAR’s arrest. And if this

is justification, then the search was barred by the holding

in Preston v. United States, supra. The search cannot be

justified by Cady v. Dombrowski, 413 U.S. 433; 93 S. Ct.

2523, as this was not a caretaking search by state

officers, but a search for evidence.

ll

THE COURT BELOW HAS MISUSED THE

DOCTRINE OF “FOUNDED SUSPICION” TO

ABROGATE APPELLANT'S RIGHTS UNDER

MIRANDA V. ARIZONA, 384 U.S. A436.

The Ninth Circuit utilizes a doctrine known as

“Founded Suspicion” to permit the stopping of vehicles

for investigation without probable cause. The Court

dismissed appellants’ argument that their statements

should not have been admitted into evidence because

they were not warned pursuant to Miranda, supra, with

the following language:

“It appears that they argue that the whole

panopoy of warnings required by that case

(Miranda) should be applied whenever an inves-

tigation has ‘focused’ sufficiently to justify

stopping a vehicle. They cite no authority for

this novel proposition, and we see no reason to

adopt it. See Lowe v. United States, 407 F. 2d

1391, 1393-94 (Ninth Circuit 1969).”’

Assuming, arguendo, that Miranda warnings are not

required when a vehicle is stopped pursuant to a

“Founded Suspicion”. this rule would have no applica-

tion to this case. The Court below held that the agents

had probable cause not only to stop the vehicles but to

search the vehicles. Henry v. United States, 361 U.S. 98;

80 S. Ct. 168 held:

21

“The fact that the suspects were in an auto-

is not enough. Carroll v. United States, supra,

liberalized the rule governing searches when a

moving vehicle is involved. But that decision

merely relaxed the requirements for a warrant on

grounds of practicality. It did not dispense with

the need for probable cause.” (361 U.S. at 104; 80S.

Ct. at 172)

The necessary probable cause to justify the search

would only exist where the facts and circumstances

within the searching officers knowledge were sufficient

within themselves to warn a man of reasonabie caution in

the belief that an offense has been or is being committed

or that contraband was contained in the MACKENZIE

The necessary probable cause to justify the search

would only exist where the facts and circumstances

within the searching officers knowledge were sufficient

within themselves to warrant a man of reasonable caution

in the belief that an offense has been or is being

committed or that’ contraband was contained in the

vehicle (Brinegar v. United States, 338 U.S. 160; 69 S.

Ct. 1302).

When the agenst stopped BONDAR and MACKENZIE

they either had probable cause to believe MACKENZIE

was Carrying marijuana and that an offense was being

committed or they had no justification for searching

22

either of the vehicles. The Court below did hold that they

had probable cause for searching the vehicles and it is

totally inconsistent to hold that the Miranda warnings

were not required.

It is very clear that the two appellants were undergoing

custodial interrogation.

As is stated in Henry v. United States, 361 U.S. 98: 80

S. Ct. 168:

“When the officers interrupted the two men and

restricted their liberty of movement, the arrest,

for the purposes of this case, was complete.”

(361 U.S. at 103; S. Ct. at 171)

After appellants were stopped on the highway, not free

to go, by federal officers who had probable cause to

believe that they were transporting marijuana, they were

questioned and their answers were put into evidence.

This violates the holding of Miranda v. State of Arizona,

384 U.S. 436; 86S. Ct. 1602:

“. . . The prosecution may not use statements,

whether exculpatory or inculpatory, stemming

from custodial interrogation of a defendant

unless it demonstrates the use of procedural

safeguards effective to secure the privilege of

self-incrimination. By custodial interrogation,

we mean questioning initiated by law enforce-

ment officers after a person has been taken into

custody or otherwise deprived of his freedom in

any significant way.” (384 U.S. at 444; 86S. Ct.

at 1612)

23

By inconsistent holdings that the officers on the one

hand had probable cause to justify a search for

contraband and on the other hand to hold that the

investigation had not focused sufficiently to require the

Miranda warnings, the Court below effectively negates

Miranda as applied to interrogation of vehicle drivers.

Like the Fourth Amendment, the Fifth Amendment does

not fade away and disappear in the presence of the word

“automobile”.

il

THE STATUTES UNDER WHICH PETITIONERS WERE

CONVICTED ARE UNCONSTITUTIONAL.

One of the most familiar phrases in jurisprudence is

“Ignorance of the law is no excuse”. However, this maxim

does have its exceptions and can no longer be viable on

its common law basis as to acts which purely malum

prohibitum.

The doctrine that ignorance of the law is no excuse

developed early in the history of the English common law

when all crimes were mala in se. Even after the body of

Criminal law developed statutory offenses which were

malum prohibitum the presumption that everyone knew

the law still had a grain of truth to it. As is stated by the

Supreme Court of North Carolina in 1849 in the case of

State v. Boyett, 32 N.C. 336:

24

“. . In criminal matters the presumption most

usually accords with the truth. As to such as

are mala in se everyone has an innate sense of

right and wrong which enables him to know

when he violates the law, and it is of no con-

sequence if he be not able to give the name

by which the offense 13 known in the law books,

or tc point out the nice distinctions botween the

different grades of offense. As to such as are

mala prchibita they depend upon statutes

printed and published and put within the reach

of everyone; so ne one has a right to complain

if a presumption necessary to the administra-

tion of law is applied to him.”

As the Court spoke in 1849 it was probably true that the

statutory law was put within the reach of everyone. The

body of law was extremely small at that time, compared

with the vast proliferation of the statutes Surrounding us

at the present time.

There are cases in American jurisprudence which hoid

that in some circumstances knowledge that an act is

malum prohibitum is a prerequisite for conviction. The

Supreme Court of Massachusetts in 1935, in the case of

Commonwealth v. Benesch, 290 Mass. 125; 194 N.E. 905

stated in resolving a case involving the Blue Sky Laws:

“So long as the contracts had not beden

approved, a sale of the shares was malum pro-

hibitum because of the statute, and nothing

more. While no decision is this commonwealth

directly in point has been called to our atten-

tion, it has been held by excellent authority in

other jurisdictions that in order to sustain an

indictment for conspiracy to commit an offense

which, like that here involved, is malum pro-

hibitum only, belonging to a general type of

offenses which has been greatly expanded by

modern legislature in many fields, it must

appear that the defendant knew of the illegal

element involved in that which the combination

intended to accomplish. People v. Powell,

63 N.Y. 88; Landon v. United States, 299 Fed.

75. See, Welch v. Adams, 114 Mass. 323;

Vogel v. Brown, 201 Mass. 261; 87 N.E. 686;

People v. Flack, 125 N.Y. 324; 26 N.E. 267.

We believe this is sound law when the charge

is conspiracy.”

Furthermore, the Supreme Court in Lambert v.

California, (1957) 355 U.S. 225; 78 S. Ct. 240 held

unconstitutional a registration statute of the Los Angeles

Municipal Code:

“We believe that actual knowledge of the duty

to register or proof of the probability of such

knowledge and subsequent failure to comply are

necessary before a conviction under the

ordinance can stand. ..... Where a person

did not know of the duty to register and where

there was no proof of the probability of such

knowledge, he may not be convicted con-

sistently with due process. Were it otherwise,

the evil would be as great as it is when the law

is written in print too fine to read or in a

language foreign to the community.”

Under the current state of the law, a citizen of Oregon

commits only an infraction when he posseses one ounce

or less of marijuana. This will probably be true in

California as of January 1, 1976. This same citizen would,

by, the same act, be committing a federal felony. There

are none of the usual indicia of a federal offense

involved: No traffic over state lines, no communication

over state lines, no contact with a federally insured

institution. The act involved is purely local and may be

only an infraction of the state law. There is no

requirement in the law itself that the unsuspecting citizen

be aware of the existence of the federal law. Making such

a morally innocent act felonious with no requirement of

knowledge does not comport with due process.

Petitioners submit that with such daw as they are

charged with violating there should be a requirement of

27

publication and a showing that they either knew or

should have known that their malum prohibitum act was

illegal.

CONCLUSION

Based on the foregoing argument and authorities it is

respectfully suggested to the court that the questions are

of widespread and general importance which have not

been, but should be, decided by this Court. It is further

suggested that the decision of the Court of Appeals is in

conflict with applicable decisions of other circuits, and

has so far departed from the accepted course of judicial

proceedings as to call for an exercise of this Court’s

power of supervision. For those reasons, it is respectfully

suggested that the Court should grant its Writ of

Certiorari to the Court of Appeals for the Ninth Circuit

and reverse the judgment of that court.

Respectfully submitted,

ROBERT W. FRASER AND

SAMUEL FRIZELL

by:

SAMUEL FRIZELL

Attorneys for Petitioner

28

DO NOT PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED States or AMERICA,

Plaintif-\ppallee,

ve

No. 74-3031

Duncan Scott MacKrnzin, |

De findant-Appellant. |

(

UNITED STATES OF AMERIC\,

Plaintiff-Appellee, —

Vs. - “ss. On:

No. 14-3032

RICHARD STEVEN Bonpar,

|

Defe ndant-Appellant. | MEMORANDUM

[March 25, 1975]

Appeal from the United States District Court

for the Souther District of California

Before: BROWNING and WRIGHT, Circuit Judges, and

ZIRPOLI,* District Judge.

Dunean Scott Mackenzie and Richard Steven Bondar appeal

from their convictions, after jury trial, of possession of 629 pounds

of marijuana with intent to distribute and conspiracy to possess

the marijuana in violation of 21 U.S.C. sections 841(a)( 1); S46.

They raise six issues on appeal. We affirm.

Appellants first arcae that the searches of their respective ve-

hieles were made without probable cause. At the hearing on the

a ee oe a + —

— -—— — - Oe

eo

*Honorable Alfonso J. Zirpeoli, United States District Judce for the

Northern [-triet of California, sitting bs designation.

29

ar rn me ee St iam .

~

Vnited Slates of Awe ried US,

motion fo suppress the marijuana, after receiving testimony From

several law enforcement officers and from appellant Bondar, the

trial court concluded that the officers had probable eatise te search

both vehicles. The agent who stopped and searched the Clr vrolet

MacKenzie was driving testified that he first saw it parked in a

notorious “drop” arca near the border with Mexico in Calexico,

California. le noticed that it had special air suspension shock

absorbers similar to those often used on “load” cars tu transport

marijuana and that, despite these special shock absorbers, it was

sitting Jow in the back and its rear tires, although new, were

bulging. Ile therefore obtained the services of Rex, the local

marijuana-sniffing dog, which signalled that there was marijuana

in the trunk of the car. He thereupon decided to watch the car.

Several hours later, appellant MacKenzie got into the Chevrolet

and drove toward the interstate highway leading out of town. The

agent, along with other officers assisting in following the Chevrolet,

then observed that the car was travelling in tandem with a van,

which he testified was a common modus opcrandi of drug smug-

glers. The officers observed the cars travelling in this tandem

arrangement for some 35 miles, usually only 100 yards apart and

never more than one-quarter mile apart. While so following both

vehicles they were informed that the van had onee flashed its

headlights several times when there was no traffic approaching,

as if to signal the other vehicle. They stopped both vehicles,

searched the trunk of the Chevrolet, found the marijuana, and

arrested both MaeKenzie and Bondar, who was driving the van.

Viewing the evidence in the light most favorable to the appellee,

as we must, there is no question that the trial court's finding that

there was probable cause to search the MacKenzie vehicle was not

clearly erroneous. See United States v. Patterson, 492 F.2d 995

(9th Cir. 1974). While the search of the Bondar vehicle presented

a close question, given the tandem arrangement, signalling and the

discovery of the marijuana, which confirmed the officers’ suspi-

cions, the trial court was not clearly in error in finding they had

probable cause to search the van.

Appellants’ second argument is that the offieevs should have

obtained warrants before searching the vehicles. The government

relics pon the automobile exeeption to the warrant requirement,

See Carroll v. Uniied States, 267 US. 182 (1925). The trial court

fouted the avent’s failure tu obtain a warrant to search ihe Chevre-

30

Ee mw

Duncan Neolt MacKenzie, et al. 3

let during the several heures between the time he first observed

it and the time MaeKenzie drove it away was justified : on are

ho reason to overturn this Smding. See Mailed Nlates wv. Church

490 Pd 353 Oth Cir, 1974). Bondar arenes that the warranties

seareh of the van is mei justified sinee the offieors had taken him

intu eustody amd driven the van back te their Offices prior te

searching it, relying on Preston ev. United State s, 376 US. 364

(1964). But Preston applies only to attempts to justify a ek

as incident to an arrest. Cady ¢, Dombrowshi, 413 US. 435. 444

(19753). Here. the trial court did not Uphold the seareh beeen:

it was incident to an arrest. Rather, it found thet the officers had

probable cause to seaveh the vehicle at the time ther arrested

Bondar. Thus, under the doctrine of Chambers v. Merency. 399

US. 42 (1970 . they were permittod toe defer their search to a

more convenient time. See alse Coolidge vo New Hampshire, 403

U.S. 443, 463 (1971).

Third, appellants argue that admission of their answers to Vari-

ous initial inquirics the officers made of them when ther stopped

them vielated their rights under Wirenda ve. Arizona, 384 US. 456

(1965). Tt appears that ther ereue that the whole panoply of

Warnings required by that case should be applied whenever an

investigation has “foeussed” sufficiently te justity stopping a

vehicle. They cite no authority for this novel proposition, and we

see no reason to adopt it. Nee Lowy v. United Stats, 407 P20 1391.

1393-94 (Oth Cir, 1969),

Pourth, appellants urge that there was not safieient evidence te

support their convictions. They do not challenge any of the jury

instructions; the eourt must. theretore rejeet their argument if

there was suflicient evidence te permit the jury rationally te eon.

clude that ther were guilty bevond a reasonable doubt. Mn: d

Staics v. Nelson, 419 P20 1237 (oth Civ. 1969). There clearly

was sufficient evidence to convict MacKenzie on both counts:

aguin, as to Bondar, this appeal presents a nore difticult question.

To justify the convietion the prosecution neal! te tie him te the

marijuana found in the trunk ef the Chevrolet. In addition to the

eVidenes diseussed shove concerning the tenden. arrar gement. the

jury had before it the faets that when he was stopped Bondar

denied any sequcintanee with Ma-henzie while be had. in. the

glove compartment of the van he was lriving. various betiers

31

*

:

’

:

4 United Slates of Amerwa vs,

addressed to or from MaeKenzie, whe resided in the same town he

did. In light of this additional evidence of Bondar’s consecioimness

of guilt, this court cannot hold that the jury could not rationaily

conclude that he was aware of, and participating in, the trans-

portation of the marijuana.

Fifth, appellants argue that the trial court erred in failing to

sever their trials. But they never moved for severance; while it

might have becn a wiser tactical decision for them to scek separate

trials, it was not clear error for the trial court to fail to order

such severance sua sponte.

Finally, appellants attack the constitutionality of prohibitions

against possession and use of marijuana on the theory that such

conduct is not a moral wrong but merely malum prohibitum. Thus,

they reason, the statute must, to satisfy due process, require proof

that they actually knew that possession was prohibited. This argu-

ment is frivolous since convictions under these statutes have

repeatedly been affirmed.

The judgments appealed from are affirmed.

PROOF OF SERVICE BY MAIL

STATE OF CALIFORNIA, COUNTY OF RIVERSIDE

|am acitizen of the United States and a resident of the

county aforesaid ; | am over the age of eighteen years and

not a party to the within entitled action; my business

address is: 1509 North Main Street, Santa Ana, California

92701. On , | served the within

PETITION FOR WRIT OF CERTIORARI on the following:

Solicitor General of the U. S.

Department of Justice U. S. District Court

Washington, D. C. 20530 U. S. Courthouse

312 North Spring Street

United States Court of Appeals 40S Angeles, Calif. 90012

Ninth Judicial Circuit

Seventh and Mission Streets U.S. Attorneys Office

P.O. Box 547 12th Floor

San Francisco, Calif. 94101 312 North Spring Street

Los Angeles, Calif. 900012

by placing a true copy thereof enclosed in a sealed

envelope with postage fully prepaid, in the United States

mail at Santa Ana, California.

| declare under penalty of perjury that the foregoing is

true and correct.

Executed on_ 1975, at Santa

Ana, California.

JACK GALLAGHER

33