Opposition — Hickman v. United States

Ly “Iu the Supreine Court af the Bred States

” OCTOBER TERM, 1975

DONALD EUGENE HICKMAN and

1 THOMAS HENRY LANDERS, PETITIONERS

v.

| UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES

IN OPPOSITION

ROBERT H. Bork,

Solicitor General,

Department of Justice,

Washington, D.C. 20530.

ait,

LL NN eee

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’

Iu the Supreme Court of the United States

OCTOBER TERM, 1975

No. 75-516

DONALD EUGENE HICKMAN and

THOMAS HENRY LANDERS, PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES

IN OPPOSITION

Petitioners contend that a ton of marijuana, seized

during a search to which they consented, should have

been suppressed.

After a non-jury trial in the United States Dis-

trict Court for the Southern District of California,

petitioners were convicted of possession of marijuana

with intent to distribute it (21 U.S.C. 841(a)(1)),

(1)

2

willful importation of marijuana (21 U.S.C. 952,

960), and conspiracy to commit those offenses (21

U.S.C. 846, 963). Each was sentenced to a total of

10 years’ imprisonment, followed by a special parole

term of 20 years.’

Petitioners’ trial was conducted pursuant to a

stipulation of facts, based largely upon the evidence

adduced at a prior hearing on petitioners’ unsuccess-

ful motion to suppress approximately 1,965 pounds

of marijuana seized by United States Customs au-

thorities from a boat registered to petitioner Hick-

man. The evidence at the suppression hearing showed

that on May 12, 1973, Customs Agent Robert Davis

received a tip from a confidential informant that a

24-foot white “Fiberform” power cruiser had entered

Mission Bay in San Diego, California, at approxi-

mately 11:00 p.m. the previous night “under curious

circumstances” (Tr. 5). The informant reported that

the license number of the vessel was CF9802FB (Tr.

34) and that it carried two occupants, one of whom

he identified as petitioner Landers (Tr. 37).

An inquiry at the California Department of Motor

Vehicles revealed that the license number had been

issued to a boat owned by petitioner Hickman, a

resident of Modesto, California (Tr. 5-6). Agent

Davis thereafter learned from the Customs Service

computer that Hickman had been suspected of crimi-

1 The district court imposed consecutive five-year sentences

on the possession and importation counts and five-year terms

on each of the conspiracy counts, with the conspiracy terms to

run concurrently with those given on the substantive counts.

nal involvement in a prior pill smuggling scheme

(Tr. 7). In addition, Davis was informed by Mo-

desto police that both Hickman and Landers were

currently under investigation for alleged narcotics

trafficking (Tr. 10-11). Further investigation estab-

lished that Landers possessed a boat trailer with li-

cense number JM6300 (Tr. 8) and that he owned a

24-foot white “Fiberform” power cruiser, identical

to Hickman’s boat, with license number CF9803FB

(Tr. 12). The boats’ sequential license numbers indi-

cated that they had been purchased at about the

same time.

Approximately two weeks later, on May 26, 1973,

Customs agents spotted petitioner Landers’ empty

boat trailer being pulled by a Chevrolet “carryall”

in the vicinity of the Dana boat ramp at Mission

Bay (Tr. 15). The trailer was subsequently un-

hooked and left near the ramp (Tr. 17-18). As Cus-

toms agents maintained surveillance of the trailer

(Tr. 18), Agent Davis followed the Chevrolet, which

was being driven by petitioner Hickman’s wife, to

the Islandia Hotel (Tr. 15-16). Davis then proceeded

to a pier adjacent to the hotel where he found a

24-foot white “Fiberform” cruiser, license number

CF9802FB, moored in boat slip D-9 (Tr. 17). After

ascertaining that the slip had been rented by peti-

tioner Landers, Davis and Customs Agent George

Gore watched the boat throughout the night.

At about 10:00 a.m. on the next morning, Davis

learned from the agents watching the Dana ramp

4

that a 24-foot white “Fiberform” power cruiser, hav-

ing the same license number (CF9802FB) as the

boat that he and Gore then had under surveillance

in slip D-9, was maneuvering toward the ramp from

Mission Bay and that the Landers trailer had been

positioned to pull the approaching boat from the

water (Tr. 19-23). Pursuant to instructions radioed

by Agent Davis from his position at slip D-9, Cus-

toms agents Clyde Burnett and Fred Matteson

stopped the pickup truck hauling the boat and trailer

as the rig attempted to leave the Dana ramp area

(Tr. 126). In response to questioning from Matteson

and Burnett, the occupants of the truck, which in-

cluded petitioners Hickman and Landers, reported

that they had just returned from a fishing trip near

the Coronado Islands in Mexican waters and that the

boat and trailer belonged to petitioner Hickman (Tr.

133-134). Agent Matteson requested petitioner Hick-

man’s permission to search the boat and Hickman

agreed (Tr. 138-139).

Agents Matteson and Burnett boarded the vessel

(the “load boat’) at approximately 10:30 a.m.;

Agent Davis and Gore arrived at the scene from

slip D-9 a few minutes later. After a brief conver-

sation with petitioners, Davis joined Matteson and

Burnett on board the load boat (Tr. 26-27). Gore

stayed at the Dana ramp site for only a few minutes

(Tr. 82, 92, 101), and then returned to the marina

to search the identical boat (the “decoy boat”) still

moored in slip D-9 (Tr. 82-83).

—.

5

Upon his return to the Dana ramp at around noon,

Gore boarded the load boat where agents Matteson,

Burnett, and Davis were continuing their search.

Based upon his observation of the interior design of

the supposedly identical decoy boat at slip D-9 and

a prior study of “Fiberform” sales brochures, Gore

concluded that the deck of the load boat had been

altered (Tr. 83-84). A closer inspection of the deck

area, prompted by Gore’s observations, disclosed a

compartment beneath the deck that contained a large

quantity of marijuana. Petitioners were immediately

arrested (Tr. 85-87).

Arguing that Agent Gore lacked probable cause

to search the decoy boat at slip D-9, petitioners con-

tend that the marijuana subsequently located aboard

the load boat at the Dana ramp with the aid of

Agent Gore’s interior design comparisons was tainted

under the principles of Wong Sun v. United States,

371 U.S. 471. The court of appeals’ finding that the

agents had probable cause for the search, however,

is correct, and does not merit further review.?

At the time that Agent Gore was dispatched from

the Dana ramp to the decoy boat, the agents had

probable cause to believe that that boat was involved

in an illicit smuggling operation and that it contained

* The opinion of the count of appeals does not explicitly

address the issue of petitioners’ standing to complain of the

search of the decoy boat. In his separate concurring and dis-

senting opinion, Judge Zirpoli concluded that only petitioner

Landers, as the registered owner of the decoy boat, h

standing (Pet. App. 10, n. 3). J —

6

evidence pertinent to the investigation of that scheme.

As the court of appeals concluded, the agents’ deter-

mination of probable cause was based on (Pet. App.

6):

(1) the discovery that the appellants were in-

volved with two identical boats with the same,

supposedly unique registration number; (2) the

tip from an assertedly reliable informer that

the boat with appellants aboard had earlier ar-

rived in Mission Bay under suspicious circum-

stances, corroborated by the registration number

on the arriving boat and identification 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 smug-

gling violations.

In addition, the agents had received information

from both the Customs Service databanks and Mo-

desto police authorities linking petitioners with pre-

vious drug smuggling activities, petitioners stated

that they had just returned from Mexican waters

without making a customs declaration, and petitioner

Hickman had told the agents that he owned the boat

trailer although its license showed ownership in

someone else (Pet. App. 8). The cumulative impact

of these factors provided the agents with probable

cause to infer the existence of a smuggling scheme

involving the two boats, and to search the decoy boat

7

before it could be moved. Chambers v. Maroney, 399

U.S. 42.°

Indeed, even assuming that the search of the

decoy boat violated petitioners’ Fourth Amendment

rights, that illegality did not taint the evidence

seized from the load boat. The agents had reason-

ably focused their suspicion on the load boat (which

petitioners were attempting to remove from the Mis-

sion Bay area) as the vessel containing contraband,

and a search of unlimited scope authorized by the

consent of the registered owner was in progress on

the load boat before the search of the decoy boat was

undertaken. Thus, the investigative effort that ulti-

mately yielded the marijuana was lawfully underway

before the alleged illegality occurred. See United

States v. Willis, 478 F. 2d 450 (C.A. 6); United

States v. Brandon, 467 F. 2d 1008 (C.A. 9).

*’ Judge Zirpoli, dissenting on this point, contended that,

while the agents may have had probable cause to believe that

the two boats were involved in a smuggling scheme when they

initially stopped the load boat at the Dana ramp, “the events

that followed the stop really operated to vitiate any probable

cause that the agents may have had at the outset simply be

cause they were unable, after an hour of searching the load

boat, to find anything” (Pet. App. 12). He concluded that

the futile search refuted the agents’ suspicions and that Agent

Gore therefore lacked probable cause to search the decoy boat.

This argument erroneously assumes that Agent Gore was sent

to search the decoy boat only after a lengthy and fruitless

search of the load boat. The record establishes, however, that

Gore arrived at the Dana ramp only minutes after Agents

Burnett and Matteson had boarded the load boat and that he

left the scene to search the decoy boat two or three minutes

later (Tr. 82, 92, 101).

8

Moreover, Agent Gore’s familiarity with the stand-

ard interior configuration of “Fiberform” boats

stemmed partially from his prior study of “Fiber-

form” sales brochures (Tr. 82-84), and not solely

from his inspection of the decoy boat. The agents’

discovery of the marijuana on the load boat, there-

fore, was not sufficiently dependent upon or related

to the allegedly unlawful search of the decoy boat to

constitute an “exploitation of that illegality” (Wong

Sun v. United States, 371 U.S. 471, 488).

* Petitioners contend that the court of appeals impermissibly

contradicted “findings of fact” made by the trial judge at the

suppression hearing. Specifically, petitioners claim that the

court of appeals erred by mischaracterizing the investigative

goal of Agent Gore’s decoy boat search and by finding prob-

able cause to justify that search. The contention is insubstan-

tial. The court’s description of Agent Gore’s investigation of

the decoy boat as a “search for registration papers and his

concurrent observation of the configuration of the interior

of the boat” (Pet. App. 7) does not differ materially from

the trial judge’s treatment of the search as “an inquiry to

determine whether or not the boat that they had a right to

search [the load boat] looked like the other boat that was sup-

posed to be identical, with the same hull number” (Tr. 277).

In any event, whether the primary purpose of the decoy boat

search ~~as to view its interior configuration as Agent Davis

testified (Tr. 27), to clear up the mystery generated by the

identical license numbers as Agent Gore testified (Tr. 82),

or to achieve a combination of those aims as the court of ap-

peals apparently concluded, is simply irrelevant to the issue of

the legality of the search. In view of the highly suspicious

facts then known to the agents, either agent’s characterization

of the goals of the search would be consistent with an investi-

gation undertaken with the requisite probable cause.

Furthermore, the trial court did not decide that there was

no probable cause for the search. Rather, assuming the illeg-

ality of the decoy boat search arguendo, it chose to respond

9

It is therefore respectfully submitted that the

petition for a writ of certiorari should be denied.

RoBERT H. BORK,

Solicitor General.

DECEMBER 1975.

directly to the “fruit of the poisonous tree” argument put for-

ward by petitioners (Tr. 277): |

I can’t find that [the search of the decoy boat], = we

act might have been an intrusion into the boat, tha . _

was or would taint the discovery, as the search [0

load boat] had already been in progress. pm

a did not “reweigh the cr ibi

a the po ard pd sners a different factual conclusion >

to the state of the evidence” (Pet. 13) in finding probab

cause to support the decoy boat search.

@ ©. 6. coveenment reimrine orrice, 1975 seeese 157