Petition — Hickman v. United States

Supreme Court, U. S.

et ge ee

OCT 2 1975,

\

IN |

MICHAEL RODAK, JR., CLERK |

SUPREME COURT OF THE STATES ~~

October Term, 1975

No. 25-516

DONALD EUGENE HICKMAN,

THOMAS HENRY LANDERS,

Petitioners,

Vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FREDERICK L. LINK and

CHARLES L. GOLDBERG

LINK & GOLDBERG

2320 Fifth Avenue

Suite 200

San Diego, CA 92101

Telephone: (714) 232-6671

Attorney for Petitioner,

DONALD EUGENE HICKMAN

JOHN J. MCCABE, JR.

MITCHELL, SCHMIDT, D'‘'AMICO,

MCCABE & STUTZ

2170 Fourth Avenue

San Diego, CA 92101

Telephone: (714) 236-1133

Attorney for Petitioner,

THOMAS HENRY LANDERS

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1975

No.

DONALD EUGENE HICKMAN,

THOMAS HENRY LANDERS,

Petitioners,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FREDERICK L. LINK and

CHARLES L. GOLDBERG

LINK & GOLDBERG

2320 Fifth Avenue

Suite 200

San Diego, CA 92101

Telephone: (714) 232-6671

Attorney for Petitioner,

DONALD EUGENE HICKMAN

JOHN J. MCCABE, JR.

MITCHELL, SCHMIDT, D'‘AMICO,

MCCABE & STUTZ

2170 Fourth Avenue

San Diego, CA 92101

Telephone: (714) 236-1133

Attorney for Petitioner,

THOMAS HENRY LANDERS

TOPICAL INDEX

Table of Authorities

PETITION FOR WRIT OF CERTIORARI

OPINION BELOW

JURISDICTION

QUESTIONS PRESENTED FOR REVIEW

CONSTITUTIONAL PROVISIONS

INVOLVED

STATEMENT OF THE FACTS

REASONS FOR GRANTING THE WRIT

A. The Decision Below Impermissi-

bly Reweighs the Evidence and

Finds Probable Cause to Search

the Decoy Boat Even Though the

Trial Court Did Not Find Prob-

able Cause

B. The Facts Introduced at the

Hearing on the Motion to

Suppress do not Warrant a

Finding of Probable Cause to

Search the Decoy Boat

CONCLUSION

APPENDIX A

Opinion of the Court of Appeals

dated September 2, 1975

ll

1l

14

16

TABLE OF AUTHORITIES

Cases

Campbell v. United States,

373 U.S. 487 (1963)

Chambers v. Maroney,

399 U.S. 42 (1970)

Henry v. United States,

361 U.S. 98 (1959)

Jackson v. United States,

353 U.S. 862

Silverman v. United States,

365 U.S. 404 (1961)

United States v. Boston,

510 F.2d 35 (9th Cir. 1974)

Wong Sun v. United States,

371 U.S. 471 (1963)

Statutes

21 U.S.C. §841(a) (1)

21 U.S.C. §846

21 U.S.C. §952

21 U.S.C. §960

21 U.S.C. §963

28 U.S.C. §1254(1)

Constitution

U.S. Constitution, Amendment IV

ii

16

14

12

13

13

13

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975

No.

DONALD EUGENE HICKMAN,

THOMAS HENRY LANDERS,

Petitioners,

Vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

The Petitioners, Donald Eugene Hickman

and Thomas Henry Landers, respectfully

pray that a Writ of Certiorari issue to

review the judgment of the United States

Court of Appeals for the Ninth Circuit

entered on September 2, 1975.

OPINION BELOW

The Court of Appeals rendered its

Opinion affirming the conviction of Peti-

tioners on September 2, 1975. A copy of

the September 2, 1975 Opinion, which is

to be reported officially, is attached

as Appendix A.

JURISDICTION

On September 2, 1975, the Court of

Appeals entered judgment affirming the

conviction of Petitioners for conspiracy

to import, conspiracy to possess with

intent to distribute, importation, and

possession of marijuana in violation of

21 U.S.C. §§ 963, 952, 960, 846 and

841(a)(1). Jurisdiction to review the

judgment of the Court of Appeals is con-

ferred upon this Court by Title 28, United

States Code, Section 1254(1).

QUESTIONS PRESENTED FOR REVIEW

Whether there was probable cause to

search the decoy boat, and if not, did

that search taint the search of the load

boat.

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Amendment IV:

The right of the people to be

secure in their persons, houses,

papers and effects, against un-

reasonable searches and seizures,

shall not be violated, and no

warrants shall issue, but upon

probable cause, supported by

oath or affirmation, and parti-

cularly describing the ,lace to

be searched and the persons or

things to be searched.

STATEMENT OF THE FACTS

On May 12, 1973, Agent ROBERT DAVIS

received information from a confidential

informant that a 24-foot, white power

cruiser had arrived in Mission Bay, San

Diego [R.T. p. 5) .2/ The confidential in-

formant had seen the boat once previously,

on a Friday, April 20, 1973 [R.T. p. 5].

The confidential informant told DAVIS that

the number of the boat was CF9802FB and

that two white males were operating the

boat, one of which he knew to be THOMAS

HENRY LANDERS [R.T. pp. 35-37].

1/ "R.T." refers to the Reporter's Tran-

script of the hearing on the motion

to suppress.

3.

DAVIS then made a Department of Motor

Vehicles inquiry on the registration num-

ber of the boat, and found the registered

owner of the boat to be DONALD EUGENE

HICKMAN [R.T. p. 6]. DAVIS also queried

his Cadpin system for information on

DONALD EUGENE HICKMAN and learned that

HICKMAN was a Customs suspect in a previ-

ous matter involving smuggling of pills

[R.T. p. 7]. The Cadpin printout indi-

cated that this information on HICKMAN

was given by an agent in Tecate on August

30, 1972 [R.T. pp. 42-43].

On the evening of May 12, 1973, DAVIS

went to the Islandia Marina in Mission

Bay and talked with a security guard who

told him that he had observed a boat come

into the Marina with two white males

operating the vessel, and he then observed

one of them walk away from the Marina area

toward the Dana Marina Inn, also on

Mission Bay [R.T. pp. 7-8]. DAVIS then

went to the Dana Marina Inn, and checked

the registration in the hotel for Friday

evening the night before, and found a

registration under the name of THOMAS

LANDERS [R.T. p. 8]. LANDERS had listed

4.

essai mienads

California license plate number JM6300 on

the registration card, and had checked in

some time after eleven o'clock on Friday

night, but had already checked out [R.T.

p. 40). DAVIS then made inquiries to the

Department of Motor Vehicles on the

license plate number, and the license

number was found to come from a boat

trailer registered to a DONALD JONES from

Modesto, California [R.T. p. 9].

A day or two later, DAVIS contacted

Deputy HOLLOWAY at the Modesto Sheriff's

Department, and asked if he was familiar

with HICKMAN or LANDERS. HOLLOWAY stated

that HICKMAN was currently under investi-

gation for suspicion of trafficking in

narcotics [R.T. pp. 11-12]. DAVIS also

made an inquiry of the Department of Motor

Vehicles as to any other vehicles or boats

owned by THOMAS LANDERS, and learned that

LANDERS was the registered owner of a

24-foot power cruiser of the same type

and model as HICKMAN with hull number

CF9803FB [R.T. p. 12].

On Friday, May 25, 1972, surveillance

was resumed, and at about 9:15 P.M., DAVIS

5.

received a call from Agent GANNER who said

that he had observed the boat trailer

(license number JM6300) being pulled by a

Chevy carryall vehicle (license number

287GCZ) at the Dana Ramp [R.T. p. 15].

GANNER had seen the Chevy carryall and the

trailer being pulled up the ramp, and the

boat trailer was empty and dripping wet

[R.T. p. 17]. While DAVIS was on his way

over to the Dana Ramp area, he received

a call over the radio that the vehicle

had left the trailer behind, and he him-

self then spotted the vehicle being driven

and parked at the west end of the Islandia

Hotel, in Mission Bay [R.T. pp. 46-47].

He observed GLORIA GWEN HICKMAN exit the

vehicle and walk towards the ramp area

for the Islandia Marina [R.T. p. 16]. A

male walked over to GLORIA HICKMAN from

Pier D, had a few words with her, and

then they both walked back over to the

carryall. DAVIS overheard GLORIA HICKMAN

say something like, "Wny didn't you tell

me I could drive straight across?" [R.T.

p. 16]. The carryall then was driven

from the west end of the Islandia Hotel

to the Dana Hotel across the street

[R.T. p. 17].

ae

DAVIS then went over to Pier D of the

Islandia Marina and observed there a boat

which was secured and fully covered by a

tarpaulin which overlapped the edge of

the railings and also covered about a foot

of the entire hull [R.T. p. 48]. In order

to see the hull identification number,

DAVIS lifted up the portion of the tarpau-

lin which covered the number and observed

the number to be CF9802FB [R.T. p. 50].

DAVIS could tell what type of boat it was

even without pulling up the tarp, and felt

it was a 24-foot fiberglass, high-speed

V-hull boat [R.T. p. 72].

While DAVIS wer engaged in searching

and surveilling the moored boat in slip

D-9, Agent GORE who had been called by

DAVIS checked the Dana Inn registration

records and determined that GLORIA

HICKMAN had registered into the Dana Inn

as herself with another individual [R.T.

p. 81].

At 10:15 A.M., on May 26, 1973, Agents

FRED MATTESON and CLYDE BURNETT observed

a Chevrolet "Dooley" pickup truck, back

up to the empty boat trailer and a male

and a female proceeded to hook it up to

Ve

7 NN. EEO

the trailer [R.T. p. 123]. Both indivi-

duals got into the truck and pulled the

trailer around the parking lot and over

to the Dana Ramp. The truck and trailer

backed down the boat launching ramp and a

24-foot fiberglass boat came straight in

onto the trailer. As the boat was pulled

onto the trailer, MATTESON observed that

the bow number was CF9802FB [R.T. pp. 124-

125]. MATTESON then called DAVIS over the

radio, told him what he saw and DAVIS told

him to stop the boat which was now being

pulled away by the pickup [R.T. p. 125].

As the pickup pulled away from the

ramp, MATTESON and BURNETT pulled their

vehicle in front of the truck and stopped

it. MATTESON went over to the driver's

side of the truck and stated to the

driver, "I'm a special agent with United

States Customs. I'd like to speak to you

for a minute." [R.T. p. 126]. He then

asked the driver to get out of the truck

and asked for his driver's license. The

driver gave him his driver's license and

it indicated that the driver was DONALD

EUGENE HICKMAN [R.T. p. 127]. The other

passenger in the cab of the pickup truck

8.

. .

a eee

was identified by BURNETT as GLORIA GWEN

HICKMAN [R.T. p. 209]. Two males were in

the boat, THOMAS HENRY LANDERS and DONALD

LEE PRATER [R.T. p. 128].

MATTESON then asked the individuals

which one owned the truck, trailer, and

boat, and DONALD HICKMAN replied that it

was his [R.T. p. 134]. MATTESON then

asked the subjects where they were coming

from. PRATER replied that they had been

fishing [R.T. p. 177]. MATTESON asked

where they had been fishing, and LANDERS

replied in the area of the Coronado

Islands [R.T. p. 178]. MATTESON asked,

"We'd like to search your boat. May we

search your boat?" to which HICKMAN

replied, "Yes, you can search it, I don't

care." [R.T. p. 139].

Since the search did not reveal any

contraband, one of the agents recommended

that they take a look at the other boat

moored at the Islandia Marina to see if

there was any difference in the configura-

tion [R.T. p. 27]. Agent GORE then left

the Dana Ramp area and went back to the

boat moored at the Islandia Marina to

board that vessel and search it [R.T.

9.

pp. 92-93]. He went over to the vessel,

pulled back the tarpaulin that covered

the vessel, and boarded it, along with

two other Customs Patrol Officers [R.T.

pp. 83, 194]. For approximately fifteen

or twenty minutes he, and the other offi-

cers conducted a search of that boat

observing the interior configuration [R.T.

pp. 83, 86].

GORE returned to the Dana Ramp area,

boarded the boat that had been stopped by

the agents, and upon looking at the in-

terior configuration, could immediately

notice that it was different from the one

at the Islandia Marina, although agents

BURNETT and MATTESON had not noticed any-

thing [R.T. p. 96]. He noticed that the

deck on the boat at the Dana Ramp was com-

pletely flat, with no step down into the

cuddy cabin, whereas the boat at the

Islandia Marina had a step down into the

cuddy cabin [R.T. pp. 85-86]. He then

pulled up the carpet in the cabin, noticed

a manhole type cover which he removed,

finding marijuana [R.T. p. 86].

10.

REASONS FOR GRANTING THE WRIT

A. The Decision Below Impermissi-

bly Reweighs the Evidence and

Finds Probable Cause to Search

the Decoy Boat Even Though the

Trial Court Did Not Find Prob-

able Cause

The majority opinion characterizes

Agent GORE's search of the decoy boat as

involving a "search for registration

papers and his concurrent observation of

the configuration of the interior of the

boat." [Opinion of the Court, p. 7].

Apparently, the majority relies on GORE's

statement in the record that he went to

the decoy boat to find out who it belonged

to [R.T. p. 82], and first checked for

registration on it to see who the vessel

came back to [R.T. p. 83]. This, however,

was not GORE's purpose in searching the

decoy boat, as the dissenting opinion cor-

rectly points out. DAVIS stated that "it

was recommended by one of the CPO's that

we take a look at the other identical boat

to see what difference there was in the

interior configurations" [R.T. p. 27].

Furthermore, the trial court held that the

ll.

search of the decoy boat:

"would be better characterized

as an inquiry to determine

whether or not the boat that

they had a right to search looked

like the other boat that was

supposed to be identical with

the small hull number.

in... pe 277).

This statement by the trial court

ought to be construed as a finding of fact

based upon the credibility of the wit-

nesses. There was a discrepancy between

GORE's and DAVIS' testimony as to the pur-

pose behind the search. The trial court

apparently believed DAVIS, the case agent,

rather than GORE, an assisting agent.

The findings of a District Court on a

pretrial motion to suppress are binding

upon a reviewing court unless they are

clearly erroneous. Campbell v. United

States, 373 U.S. 487, 493 (1963); Jackson

v. United States, 353 F.2d 862, 865

(1965).

It is also apparent that the Court of

Appeal concurred with the trial judge's

finding that the discovery of the mari-

juana was a direct result of the search

of the decoy boat. Thus the Court of

12.

Appeal had to find probable cause to

search the decoy or the search of the load

boat would have been invalid under Wong

Sun v. United States, 371 U.S. 471 (1963).

The trial court did not find probable

cause, but overcame the Wong Sun hurdle

by declaring that the search of the decoy

was not really a search since it produced

nothing and also that there was no stand-

ing to challenge that search [R.T. p. 271].

That erroneous legal conclusion was not

adopted by the Court of Appeal, and cor-

rectly so. See, Silverman v. United

States, 365 U.S. 505, 511 (1961); United

States v. Boston, 510 F.2d 35 (9th Cir.

1974). However in finding probable cause

the Court of Appeal had to reweigh the

credibility of the witnesses and reach a

different factual conclusion as to the

state of the evidence. Nothing in the

court's opinion suggests that the trial

judge's finding of fact was "clearly

erroneous" and therefore the Court of

Appeal was in error.

13.

B. The Facts Introduced at the

Hearing on the Motion to

Suppress do not Warrant a

Finding of Probable Cause

to Search the Decoy Boat

The majority opinion relied on the

following facts as supporting probable

cause to search the decoy:

1. Both boats had the same bow

number.

2. Hickman's statement of owner-

ship of the trailer when it was

registered to a third party.

3. The reliable informant's tip of

seeing the same boat with peti-

tioners at an earlier time.

4. Petitioners' unusual activi-

ties in the area noted for

smuggling violations.

Only the first of these facts applies

directly to the decoy boat. While the

duplication of the bow number may be sus-

picious activity, it cannot be equated

with probable cause to search, Henry Vv.

United States, 361 U.S. 98, 104 (1959).

All the other factors which arguably

14.

could have provided probable cause to

search the load boat [and also the decoy

boat, according to the majority opinion]

became less and less compelling as the

search continued without negative results.

This dilution of whatever probable cause

existed previously is not discussed by

the Court of Appeal. Rather the court

speaks of the "need" for ascertaining the

Ownership of the decoy boat. The dissent-

ing opinion points out, there was no need

to determine whether HICKMAN was lying in

claiming ownership of the load boat, since

it was already being searched pursuant to

his consent. If the searching agents had

any question as to HICKMAN's authority to

consent to the search, it is odd that they

searched the load boat for an hour before

searching the decoy boat to determine its

ownership.

Finally, even if a purpose of the

search was to determine its ownership,

the majority opinion speaks in terms of

the "need" to determine ownership as jus-

tifying the warrantless search. It is a

fundamental precept of the law that though

the "need" to search may justify a search

15.

without a warrant, the search itself must

nonetheless be based upon probable cause,

Chambers v. Maroney, 399 U.S. 42, 51-52

(1970).

CONCLUSION

For the foregoing reasons, the Peti-

tioners Donald Eugene Hickman and Thomas

Henry Landers request that a writ of

certicrari issue to review the judgment

of the United States Court of Appeals for

the Ninth Circuit.

Respectfully submitted,

LINK & GOLDBERG

By: CHARLES L. GOLDBERG

Attorney for Petitioner,

DONALD EUGENE HICKMAN

MITCHELL, SCHMIDT, D'AMICO,

MCCABE & STUTZ

By: JOHN L. McCABE, JR.

Attorney for Petitioner,

THOMAS HENRY LANDERS

16.

APPENDIX

APPENDIX "A"

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 7

Plaintiff-Appellee,

VS.

No. 74-2559

DoNaALD EUGENE HICKMAN,

Defendant-Appellant.

, OPINION

UNrTep STATES OF AMERICA,

Plaintiff-Appellec,

vs. No. 74-2560

THomas Henry LANDERS,

Defe REGEN, |

[September 2, 1975]

Appeal from the United States District Court

for the Southern District of California

Before: BROWNING and WRIGHT, Cireuit Judges,

and ZIRPOLI, District Judge.®

WRIGHT, Circuit Judge:

Appellants were each convicted on four counts of conspiracy to

import, conspiracy to possess with intent to distribute, and impor-

tation and possession of a controlled substance. The case was tried

without a jury on stipulated facts and the testimony of a single

witness. Appellants argue that the trial judge erred in failing to

suppress approximately a ton of marijuana which they allege was

uneovered in an unlawful search. We affirm.

Appellants were involved in a smuggling operation involving

the importation of large quantities of marijuana from Mexico by

boat. Appellants had purchased identical 24-foot, white power

*Of the Northern District of California.

2 (nited States of America vs.

cruisers. They then had altered one boat by extending its deck

into the forward enddy eabin area and ereating a hidden com-

partment extending the length of the eraft which could be packed

with a ton of marijuana bricks. Although each beat had been

properly registered io its respective owner, the identifieation mum-

ber on the side of Landers’ boat had been changed so that it

carried the same revistration number, (‘F9802FB, as that assigned

to Hickman’s boat.

One boat would be towed into Mexico by truck, packed with

marijuana, and then launched at a Mexican port. It would then

sail to Mission Bay in San Diego, be hauled from the waiter, then

driven away without passing through customs. The other boat

would then be sailed to the Mexican port by the first erew and

returned to the United States on a trailer, passing through cus-

toms on the basis of its identical bow number. The presentencing

report indicated that appellants had undertaken this venture on

three previous occasions and had been paid $10,000 for each

delivery.

On May 12, 1973, a special customs agent received a tip from

a confidential informant that a 24-foot, white power cruiser with

registration number CF9802FB had arrived in Mission Bay at

11:00 p.m. the night before under suspicious cireumstances with

appellants Hickman and Landers on board.

A check at the registration number of the boat indicated that

it belonged to Hickman. A check at a nearby hotel revealed that

Landers had registered there and had rented a slip for a boat.

The car license number listed on the motel registration card,

JM6300, proved to be that of a boat trailer registered to a third

party in Modesto, (California, Hickman’s home town. This trailer |

was used to transport the appellants’ beats.

From the Customs computer the agents learned that Hickman

had been under suspicion for pill smuggling. The Modesto Sher-

iff’s Office provided information from an informant which linked

appellants with nareoties trafficking. A subsequent search for

information on Landers revealed that he owned an identical bout

with a registration number only one digit different from Hick-

man's.

A surveillanee of the Mission Bay area was rewarded on May

25 by a report thal an empty boat trailer with license JM6300

Donald Eugene Hickman, et al. 3

was being pulled from the Dana launching ramp dripping wet. A

customs agent soon located both the trailer and the towing truck.

A woman, later identified by hotel records as Hickman’s wife,

was seen leaving the truck and walking to meet an unidentified

man coming from a nearby pier at Islandia Marina. The two then

drove to the Dana Hotel and entered.

Agent Davis, in charge of the surveillance operation, walked

to the pier and observed a 24-foot boat covered with a tarpaulin

which overlapped the edge of the boat and covered its bow num-

ber. He lifted the tarpaulin sufficiently to ascertain that the regis-

tration number was CF9802FB. Both the boat and trailer were

kept under surveillance.

The following morning the agents covering the trailer reported

that a man and woman had taken the trailer and moved it to the

Dana Ramp to pick up a power cruiser with the registration

number CF9802FB. Agent Davis, who was watching the boat with

the same number still moored at Islandia Marina, requested the

agents at the launching ramp to stop the boat for questioning.

Agent Matteson pulled his car in front of the truck towing the

second boat and stopped it. He identified himself as a customs

agent and asked for identification. The driver of the vehicle was

Hickman, the passenger was his wife, and the two men in the

towed boat were codefendant Prater and appellant Landers.

When agent Matteson asked who owned the truck, trailer, and

boat, Hickman replied that he did. This reply conflicted with the

fact that the trailer was registered to a third party On ques-

tioning, the group indicated that they had not tuade a customs

declaration in San Diego although they indicated that they had

been fishing near the Coronado Islands in Mexican waters. The

parties stipulated at trial that:

Agent Matteson stated, “We would like to search your boat;

would you mind if we searched your boat?” Hickman replied,

“No, 1 don’t mind; you can search it.” Agent Matteson then

advised Hickman of his Constitutional rights to which Hick-

man replied, “I understand; I’m willing to talk to you.”

The agents began a search of the boat, noting that it had an

unusual configuration in that the cuddy cabin was not lower than

the deck aft and that additional gas tanks had been installed

4 United States of America vs.

above deck. They began to examine materials in the stern of the

boat and to dismantle the extra gas tanks.

Agent Gore, who arrived at the I. aa Ramp site shortly after

the search began, decided to “try to find out who the other boat

belonged to that was at Slip D-9 with the identical” registration

number on its bow. R.T. &2, 83, 92. Ile returned to the moored

boat, boarded it, and checked for registration.’ He looked around

the boat and determined that its hull configuration conformed to

the specifications which he had previously found in the manufac-

turer’s brochures.

Returning to the boat at the ramp, he began a search of the

forward cabin area, found a manhole cut into the deck, and

approximately a ton of marijuana bricks in the compartment

underneath. Appellants were then arrested,

Appellants argue that the evidence turned up in the search

should have been suppressed. They assert that the imitial deten-

tion at the boat ramp was an arrest and that their responses to

questions were thus improper because a Miranda warning was not

given until later.

They argue in the alternative that if the initial stop was not

an arrest, there was no “founded suspicion” for it. Hence, they

claim that any subsequent search was tainted.*

Appellants also argue that the stop and the subsequent diseov-

ery of the marijuana were tainted by the two warrantless searches

of the decoy boat while it was moored at the Islandia Marina.

'The parties stipulated that the decoy boat contained a temporary

registration permit listing Hickman as the owner and CF9803FB as its

registration number. CR22.

2Appellants argue that permission for the search was not given. After

an evaluation of the testimony of the parties, the trial judge found that

Appellant Hickman’s reply to the officer’s request amounted to “eonsent to

search under these circumstances.” This is supported by the fact that

during the search, Hickman approached the boat to determine “how bad

you're tearing up my boat” and made no objection to the continuation

of what was obviously a full-scale search. From the context of these

statements it is clear that Hickman granted a general permission to search.

See Schneckloth v. Bustamonte, 412 U.S. 218 (1973).

Donald Eugene Hickman, et al. h

I.

MIRANDA WARNINGS

Appellants contend that the initial stop of the truck and boat

constituted a significant impairment of their freedom and thus

necessitated the warning required by Miranda v. Arizona, 384

U.S. 436 (1966), before appellants were questioned. We do not

agree. No weapons or threats were used to effectuate the stop.

The subsequent questioning was not conducted in the “police

dominated” and “compelling atmosphere” to which Miranda ap-

plics. 384 US. at 445, 478.

The circumstances were essentially the same as those presented

in the usual routine highway-stop-and-inquiry situation to which

Viranda has been consistently held inapplicable. See, e.g., Lowe

v. United States, 407 F.2d 1391, 1393-94 (9th Cir. 1969); United

States v. Smith, 441 F.2d 539 (9th Cir. 1971); see also United

States v. Bekowies, 432 V.2d 8, 12 (9th Cir. 1970); cf. United

States v. Montos, 421 F.2d 215, 221-283 (Sth Cir. 1970) (the fact

that defendant’s exit was blocked by postal inspector’s car does

not mean that questioning of defendant was “custodial interroga-

tion”’).

There is nothing in the record to support appellants’ conten-

tion that the agents made a prior determination to arrest appel-

lants regardless of their responses to questioning and of the re-

sults of any legitimate search which might follow.

Since we have determined that appellants were not in a “police

dominated” and “compelling atmosphere” from the time they were

initially stopped for questioning until the time the Miranda warn-

ing wus given, their contention that statements made during this

period were improperly admitted against them must also fail.

Appellants contend that the questioning was inquisitorial, not

investigatory. We disagree. An officer making an investigatory

stop will often have some suspicion of the identity of the person

apprehended and of his prior unobserved activity. It is the very

purpose of the investigatory stop to allow the officer to confirm

or deny these suspicions by reasonable questioning, rather than

forcing in each instance the “all or nothing” choice between arrest

wnd inaction. As we held in Unifcd Stafcs vo Camacho, 506 F.2d

594, 595 (9th Cir. 1974), “| mjere request for written identifica-

6 United States of America vs.

tion of a person, even a suspect, by law enforcement or security

officers, does not necessitate the giving of Miranda warnings.”

Agent Matteson’s questions to Hickman dealt merely with his

identity, ownership of the boat he was towing, and where he had

taken the boat. Each area of inquiry was thus directly related to

the agents’ reasonable suspicion that smuggling activities were

taking place which they had a duty to curtail. Since the ques-

tioning did not go beyond the purpose of the investigatory stop,

it cannot be found to have changed the situation into the type

recognized by this court us requiring a Miranda warning.

Il.

FOUNDED SUSPICION

Appellants argue that the agents lacked founded suspicion to

stop and question them. The record does not support them. The

agents who stopped the appellants were confronted with sufficient

factors to constitute a founded suspicion necessary to stop and

question based on: (1) the discovery that the appellants were

involved with two identical boats with the same, supposedly

unique registration number; (2) the tip from an assertedly reli-

able informer that the boat with appellants aboard had earlicr

arrived in Mission Bay under suspicious circumstances, corrob-

orated by the registration number on the arriving boat and iden-

tification of the appellants by motor vehicle and hotel registra-

tion data; and (3) appellants’ unusual activities in an area noted

for a high number of smuggling violations.

While these factors might be insufficient standing alone, see,

e.g., United States v. Larkin, 510 F.2d 13 (9th Cir, 1974) (tip

of unidentified informer held insufficient by itself), the cumula-

tive impact provided the customs agents a founded suspicion for

stopping the boat and truck and questioning their occupants.

II.

SEARCH OF THE DECOY BOAT

Appellants argue that the discovery of the ton of marijuans

in the load boat was taiuted by the two searches of the second

boat whieh was moored at Islandia Marina. The first search eon-

sisted of Agent Davis’ hiting the covering tarpaulin sufficiently

to read the registration number on the bow of the meored boat.

Donald Eugene Hickman, et al. 7

The second involved Agent Gore's search for registration papers

and his coneurrent observation of the configuration of the interior

of the boat. Neither ean be characterized as an improper search.

Appellants were required to have their boats marked with a

unique registration number [46 U.S.C. § 1467 (1970); 33 C.F.R.

§ 174.1-174.7 (1974) ] which must be displayed on each side of the

forward half of the vessel “in order that it may be clearly vis-

ible.” Cal. Vehicle Code § 9853.2 (Supp. 1975); see also 46 U.S.C.

$$ 1467(a) & 1470 (Supp. III, 1973).

Agent Davis lifted the tarpaulin only enough to see the regis-

tration number and corroborate the informant’s tip. Appellants

had no “reasonable expectation of privacy” in this circumstance,

since they were required to display the registration number for

observation.

Absent harassment or intimidation, no violation of Fourth

Amendment rights are involved in a “seareh” which merely un-

covers a registration number which by law must be displayed

in a “elearly visible” manner.

Here no untoward conduct on the part of Agent Davis was

involved. Ile sought only to determine the identification of the

boat following a tip by a reliable informer and evidence that the

same boat had just been launched. (The boat trailer involved in

the ealicr incident was reported leaving the launching ramp and

the driver of the tow vehicle was seen picking up an unidentified

male returning from this picr.) The boat was moored at a public

dock and no intrusion was made other than a minimal lifting of

i. Canvas cover to expose the bow number.

Similarly, the second search of the decoy boat was a proper

one. In general, searches conducted outside the judicial process

are por se unreasonable subject to a few well-established excep-

tions. Hatz v. United States, 389 US. 347, 356 (1967). One CXCeD-

tion is provided in circumstances where there is probable cause

to believe that a erime has been committed and that the vehicle

in question coatalus evidence of the erime and where there is

danger that the suspect vehicle will escape the jurisdiction dur-

ing the time mee ssary to obtain a judicial warrant. Chambers v.

Maroney, 399 USS. 42 (1970).

Here the purtios have stipulated that appellant Hickman gave

pernilssion ty search the load boat. hlowever, the agents also had

8 United States of America vs.

probable cause to search it based on the factors, discussed above,

which provided the founded suspicion for the stop, the fact that

appellants reported that they had not made a eustems declara-

tion in San Diego but had come from Mexican waters, and Hick-

man’s statement of ownership of the boat trailer at a time when

it carried a license showing ownership by a third party.

With the exception of the statement showing arrival from inter-

national waters, these same factors apply to the decoy boat. The

fact that it carried the same registration number as the load boat

and was an identical model provided the agents with a strong

inference that it was being used as part of a smuggling opera-

tion. Since the boats were identical externally, the agents needed

to determine the ownership of the decoy boat in order to deter-

mine whether Hickman was lying in claiming ownership of the

load boat and why the boats had the same registration number.

Given the totality of these circumstances, Agent Gore had prob-

able cause for entering the decoy boat in search of its registra-

tion papers and any indicia of ownership. Similarly, the evidence

that it was being used by the appellants provided a basis for

entering the decoy boat to compare its internal configuration with

that of the boat being searched at the launching ramp.

The search falls within the Chambers execption to the warrant

requirement since the agents could reasonably belicve that other

members of the conspiracy might move it. At this stage in the

investigation it was not evident how many persons were involved.

Indeed the agents could not discount the possibility that the reg-

istered owner of the boat trailer was actively involved and in the

area ready to assist in concealing evidence of wrongdoing. More-

over, the agents could believe that, without evidence gained from

the decoy boat, the appellants and their co-defendants might have

to be released after a fruitless search of the load boat. They then

could have moved the decoy boat (as in fact was their plan).

Hence there was more than a “generalized fear that an un-

known person |would| move the vehicle.” United Slates v. Con-

wolly, A479 B2d 930, 935 (9th Cir, 1973). The only known oper-

ator was not under arrest as in Usted States v. McCormick, 502

Mid 28h, 287 (Mth Cir, 1974) and evidence that the boat was

currently being used in a eriminal activity was not laeking as in

McCormick, Althoueh the agents had known of the decoy boat's

presence sinee the night before, they did not know until an hour

Donald Eugene Hickman, et al. 9

earlier that there were two boats involved with the same regis-

tration number. Lackine that knowledee and the information

elicited from appellants about their reeent border crossing, the

agents Jacked probable cause at an cartier time to seck a seareh

warrant. Given the exigent cireumstances at the time, search of

the deeoy boat was proper.

The decision of the district court is affirmed.

ZIRPOLI, District Judge, concurring in part and dissenting in

part.

I find myself in agreement with the majority’s position on most

of the contentions made by appellants. I agree that the agents

had a founded suspicion to stop the load boat,! that they need

not have given Miranda warnings any sooner than they did, and

the appellants had no reasonable expectation of privacy as to the

registration number on the decoy boat. | see no reason to specu-

late on whether the agents had probable cause to search the load

boat because the trial court found that Hickman had consented

to the search of that boat and his finding is not clearly erroneous.

See R.T. 275-76; Schneckloth v. Bustamonte, 412 U.S. 218 (1973) .2

1In reaching the conclusion that there was a founded suspicion to justify

the stopping of the load boat, like the majority, I place no reliance on the

information received from an informant and submitted to the trial court

for in camera inspection. The in camera hearing was apparently outside

the presence of counsel for defendant or the government, and was directed

entirely to the question of whether the identity of the informant should be

revealed to defendants. Under these circumstances it should not suddenly

reappear on appeal through a sealed record to redeem what I view to bea

questionable ruling on the motion to suppress.

2The majority relies on a stipulation entered into by appellants and the

government after the motion to suppress was denied to support its con-

clusion that Hickman consented to the search of the load boat. Given the

trial court’s finding of consent, referred to in the text, I see no reason to

rely on the stipulation. Moreover, I doubt the wisdom of using stipulations

entered into after a motion to suppress is denied as a ground for affirming

the denial of the motion to suppress. Such a practice might deter defend-

ants who wish to preserve their search-and-seizure issues for appeal from

entering into stipulations for purposes of trial after the trial court has

denied their motions to suppress. Additionally, the propriety of the ruling

on the motion to suppress should, to my mind, be based on the record

before the court at the time it rules on the motion; it seems improper

to me to rehabilitate it on the basis of stipulations the parties enter

into thereafter.

10 United States of America vs.

[ must disagree with the majority’s conclusion that the agents

had probable cause to search the decoy boat when they did. How-

ever, since Hickman nowhere claimed (as he presumably could

not) that he had a possessory interest in the decoy boat, I con-

cur in the majority's affirmance as to him. See Brown v, United

States, 411 U.S. 223, 229 (1973). Landers, however, affirmed on

the witness stand that the decoy boat was his. R.T. 240-41. Since

two of the four counts on which he was convicted were for pos-

session, he has “automatic standing” to object to any search of

the load boat that was the product of an illegal search of the

decoy boat. Sce United States v. Boston, 510 F.2d 35 (9th Cir.

1974). I therefore dissent from the affirmance as to Landers.*

Since the trial court did not find that the agents had probable

cause to search the decoy boat,’ this court need not indulge any

3Landers was sentenced to five years’ imprisonment on each count of the

indictment, with the sentences on the possession counts and the sentences

on the importation counts to run concurrently. While it may be that

Landers does not have standing to object to the search of the load boat on

the importation counts, compare United States v. Wing, 450 F.2d 806,

810 (9th Cir. 1971), I see no reason to reach that issue since the majority

affirms as to all four counts and since the concurrent sentence doctrine

does not apply in this case. See United States v. Moore, 452 F.2d 576

(9th Cir. 1971).

4Concerning the decoy boat, the district court reasoned as follows:

Going back to the Landers boat [the decoy boat] and opening the

boat up and looking at the configuration of the boat really is of no

great consequence, because there was nothing found in that boat, and

there is really no standing to object. The fact that that particular act

led to the noticing of the differences in the boats, as far as this court

is concerned, nobody that I have heard on the stand claimed even any

ownership in the boat at the Islandia, except perhaps in kind of a

backhanded manner. There was really no objection to that search, in

that there was no contraband found in the boat, if it was a search. I

think it would be better characterized as an inquiry toe determine

whether or not the boat that they had a right to search looked like

the other boat that was supposed to be identical, with the same hull

number.

I can’t find that, while that act might have been an intrusion into

the boat, that that was or would taint the discovery, as the search had

already been in progress. It would not taint the discovery of the

marijuana that was subsequently found as a result of the comparison

of the configurations of the interior of the two boats.

R.T. 277. Clearly the distriet court did not conclude that the azents had

probable cause to search the decoy boat. Compare R.T. 271. Equally

clear, it seems to me, the district court’s factual determination that the

veneer

Donald Eugene Hickman, et at. 11

presumption that the trial court did correetly so conclude. Instead,

the majority concludes that the agents had probable cause to

seareh the decoy boat principally in reliance on the factors it

recites to provide a founded suspicion to stop the load boat: (1)

the discovery that appellants had two identical boats with the

same registration number; (2) the tip from an informant that a

boat with appellants aboard had earlier arrived in Mission Bay

“under suspicious circumstances”; (3) information from an in-

formant in Modesto (the in camera material) that appellants had

been involved in narcotics trafficking; (4) appellants’ unusual

activities in an area noted for a high number of smuggling viola-

tions. In addition, the majority points to the fact that when ques-

tioned after being stopped, appellants reported that they had not

made a customs declaration even though they had come from

Mexican waters and that Hickman said he owned the boat trailer

although the agents knew it was registered to a third party.

Absent the tim camera material, | cannot agree that these cir-

cumstances provide probable cause to search the decoy boat. While

the majority concludes that these circumstances provided “a

strong inference that [the decoy boat] was being used as part

of a smuggling operation,” it appears to me that the agents had

no more than a vague suspicion or hunch prior to their search

vf the decoy boat. Th oniy really persuasive fact is that appel-

lants had two boats with the same hull number, which does look

suspicious in combination with the incidence of smuggling in the

Mission Bay area. The informant’s tip about their earlier arrival

-—under “suspicious circumstances’”—is so vague as not to add

much to the suspicions engendered by the identical hull num-

bers; it was merely the stimulus that prompted the agents to

investigate and discover the identical hull numbers. At the time

they stopped the load boat, therefore, the agents had very little

beyond a founded suspicion to justify searching it. Since Hick-

man consented to the search, they needed no more.

agents found the marijuana “as a result of the comparison of the con-

figuration of the interior of the two boats” requires us to conclude that

that diseovery was tainted il the second search of the decoy boat was

illegal. See United States v. Bacall, 443 F.2d 1050, 1056-57 (9th Cir.),

cert. denied, 404 U.S. 1004 (1971). The majority therefore attempts to

justify the search of the decoy boat on the theory that it was supported

by probable cause.

12 United States of America vs.

The developments aftcr the load boat was stopped hardly pro-

vided further justification to search the decoy boat. The majority

points out that appellants admitted that they had failed to make

a customs declaration although they had been in Mexiean waters.

Whatever impact that admission might have on the propriety of

searching the load boat, it does not, as the majority notes, have

any bearing on the decoy boat. Additionally, it appeared that

Hickman may have misspoken when asked who owned the trailer.

But it is apparent from the record of the hearing on the motion

to suppress that what the agents were interested in was the boat;

his oversight in failing to explain that while he owned the boat

he did not own the trailer does not provide more reason to believe

he was engaged in smuggling. Instead, the events that followed

the stop really operated to vitiate any probable cause that the

agents may have had at the outset simply because they were

unable, after an hour of searching the load boat, to find any-

thing. The agents’ suspicions were not confirmed, but refuted.

The majority does not confront this dilution of whatever prob-

able cause the agents had when they first stopped the load boat.

Instead, it suggests that “the agents needed to determine the own-

ership of the decoy boat in order to determine whether Ilick-

man was lying in claiming ownership of the load boat and why

the boats had the same registration number.” I am not aware of

any doctrine that makes need, which might affect the warrant

requirement, a substitute for probable cause. Moreover, I see no

reason why, after they had spent an hour searching the load boat,

the agents had any such need to search the decoy boat. If they

were concerned about whether Hickman really had authority to

consent to a search of the load boat, it is odd that they waited

so long to verify that he did. If they wanted to verify that Hick-

man owned the load boat, | do not sce why they needed to seareh

the decoy boat to do so. It is clear from the record that ile rea-

son Agent Gore returned to the decoy boat was that he expected

to find there the key to the puzzle of how the contraband was

secreted on the load boat. He had no immediate need to find a

registration for the decoy boat.

Under these circumstances, the majority's reliance on Chambers

v. Maroney, 399 U.S. 42 (1970), is misplaced, because, at the

iime they began their search of the decoy boat, the agents had

only their vague (and by that time refuted) suspicions that a

Donald Eugene Hickman, et al. 13

crime had occurred at all. In Chambers the situation was very

different. A robbery had occurred, and two teen-agers reported

seeing a station wagon speeding away from the scene of the crime.

Within an hour, police stopped a station wagon fitting the de-

seription given by the two teen-agers, arrested the occupants, and

took the car into custody. Jd. at 44. The issue before the Supreme

(Court was whether the police should have obtained a search war-

rant before searching the car even though they had probable

cause to search it when they stopped it. The Court held that they

did not have vw do so. There was no question but that a robbery

had been committed and that the police had probable cause, based

on the description of the robbers they had received, to arrest peti-

tioners for the robbery. Here, in contrast, at the time Agent Gore

departed to search the decoy boat, he had no facts at his com-

mand that indicated that any crime (save perhaps some technical

violation in relation to the identical registration numbers) had

been committed; Chambers cannot be used to support what was

essentially a jishing expedition.

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