Petition — Flores v. United States

en ce,

Supreme Court, U. ry |

FILED

j

JAN 5 1976

MICHAEL RODAK, JP, CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

TERM, 197

no. 25-1078

GIL FLORES,

PETITIONER

VS

UNITED STATES OF AMERICA

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Jacob G. Hornberger

915 Victoria Street

Laredo, Texas 78040

John L. Johnson

1620 Guaranty Bank Plaza

Corpus Christi, Texas 78401

Attorneys for Petitioner

TABLE OF CONTENTS

Page

TABLE OF CASES ..... Ceoccccccccceces i

OPINIONS BELOW .cccccceccccces eecee 2

JURISDICTION ccccccccccccccccs cocccecs 2

QUESTIONS PRESENTED FOR REVIEW .. 3

FEDERAL RULES INVOLVED ........... 5

STATEMENT OF THE CASE ...ccccceees 5

REASONS FOR GRANTING THE WRIT ... 13

SUMMARY ....... er ee er 39

CERTIFICATE OF SERVICE ......cceee, 41

APPENDIX A........ Cocccccccccccccece 1-4

(Judgment and Opinion of the

United States Court of Appeals,

Fifth Circuit)

APPENDIA BD cesccocsvcoccoveescesececes l

(Order of the United States Court

of Appeals Denying Petitioner's

Motion for Rehearing)

PS = eee ee nn 1-2

(Old Rule 4l(e) of the Federal Rules

of Criminal Procedure)

BPs BP 0064660686060 Cb6b6 Cdeeeeebe 1-2

(New Rule 41 (e) and (f) of the Federal

Rules of Criminal Procedure)

TABLE OF CASES

Page

Alderman v U.S., 394 US 165, 22 Led2 176,

89S Ct 961 ose eee oseeeveeeeeeeeeeee 15

Almeida-Sanchez v US, 413 US 266,

37 Led2 596, 93 S Ct. 2535 .ccccce seco

29 Am. Jur. 2d p. 474 ceseccecccece eer 22

Cash v Williams, 455 F2 1227 ...c.ccccccecs 18

«fe Se eehUD, Ul! eae 19

Hatch v Reardon, 204 US 152, 51 Led 415

27S Ct 188 e*eenenerteeneteenseeeeeenee#ee#ee#eee#e#e#ee#e#e 14

Jones v U.S., 362 US 257, 4 Led2d 697

80 S Ct 725 eeeee oeeveeveeev eee eaeneaee -13,16,19

Katz v U.S., 389 US 347, 19 Led2 576

88 S Ct 507 eoeenreeeeseeeeneenee#e#eee#eee#ee#e#es. 16, 17

Mancusi v De Forte, 392 US 364, 20 Led2

1154, 88 S Ct 2120 *eeseeeneeneeneeeeeneeeneee 16

McLindon v U.S., 117 US App. D.C. ;

329 F2 238 eeenweeeaeeeeeeeeaeeeeeeeee 24

Nardone v U.S., 308 US 338, 84 Led 307,

60 S Ct 266 eeeeeeoeeeeneeeseeeneneeeeeeeeee 22

Rule 41 (e), Rules of Criminal Procedure- 27, 30, 32

Rule 41 (e) (f), Rules of Cr. Procedure ..... 32

Table of Cases-Cont'd:

Silverthorne Lumber Co. v U.S. 251 US 385,

64 Led 319, SP Be eee Ee, 6 6864 0Kws btce

Simmons v U. S., 390 US 377, 19 Led2d

1247, ar te Gee SOF £dbbe6s0d bch een cks

Simpson v U. Bee 346 F2 291 eseee3eeeeeee

Smith v U.S., 324 F2 879 $4606666660666

U.S. v Brignoni-Ponce, US .

45 Led2 607, 95S Ct 9006e6es

U.S. v Coplon, 185 F2 629 .....ccccccccece

U.S. v Eldrige, 302 F2 463 ..rccc ccc cccce

U.S. v Jeffers, 342 US 48, 96 Led 59,

(; @ Se ® 93 oe@enereveeee eevee eeeeeeeee

U.S. v Lewis, 270 FS 807, 392 F2 377 ....

Vole GO TOMO, BSP FE Bbc cvcaccscsencccce

U. S. v Warrington, 17.FRD 25.......00..

Walder v U.S., 347 US 62, 98 Led 503,

74S Ct 354 *eeeeeeeeeeeeeeeneeen eens

Page

21

29, 31

24

21

Waldron v U.S., 219 F2 37 w.ccccccceee 30, 33

Weed v U.S., Det ae 6s dh beeen daccacs

li

19

IN THE

SUPREME COUR’! OF THE UNITED STATES

TERM, 197

NO,

GIL FLORES,

PETITIONER

VS

UNITED STATES OF AMERICA

PETITION FOR A WRIT OF CERTIORARI

flO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

The petitioner, Gil Flores, respect-

fully prays that a writ of certiorari issue to review

the judgment and opinion of the United States Court

of Appeals for the Filth Circuit entered in this

proceeding on October 30, 1975, and to the order of

that Court dated December 4, 1975, denying the

Petitioner's Petition for Rehearing.

OPINIONS BELOW

The opinion of the Court of Appeals

for the Fifth Circuit, which appears at Appendix A,

pages 1 thru 4, and the order of that Court denying

the Petition for Rehearing, which appears at

Appendix B, page 1, have not been reported as of

this date.

JURISDICTION

The Judgment of the Court of Appeals

for the Fifth Circuit (App. A, pp. 1 thru 4), was

entered on October 30, 1975. A timely Petition

for Rehearing was denied on December 4, 1975,

a

The jurisdiction of this Court is invoked under

28 USC Section 1254 (1).

QUESTIONS PRI SENTED FOR REVIEW

1. Did the trial court err in denying the

motion of the Petitioner, Gil Flores, to suppress

the evidence (marihuana) seized in a vehicle being

operated at the time by an alleged co-conspirator?

2. Did the trial court err in permitting

testimony to be received from the alleged co-

conspirator?

3. Did the Honorable Court of Appeals

err in holding that even though the District Court

prior to the trial, and without a hearing, denied

petitioner's motion to suppress on the ground of

lack of standing, the petitioner was required to

object to the introduction of the evidence in

question at the time the government offered it into

evidence and again request a hearing on his

motion outside the presence of the jury, and that

_ =

his failure to do so rendered any prior errors

harmless.

4. Did the Honorable Court of Appeals

err in holding, if indeed it did so hold, that the

testimony of the Border Patrolmen who stopped

and searched the automobile in which the

Defendants were riding should not have been

suppressed.

FEDERAL RULES INVOLVED

See Appendix C, pages 1 and 2 and

Appendix D, pages 1! and 2.

STATEMENT OF THE CASE

This petitioner, Gil Flores, along with

one Willie Chapa was indicted by the Grand Jury

on a two-count indictment. The first count was a

conspiracy count, and the second count was for

aiding, abetting, counselling, commanding,

inducing and procuring one Ruben V. Sandoval to

unlawfully, knowingly and intentionally possess

with intent to distribute approximately 800 pounds

of marihuana. Ruben V. Sandoval agreed to

testify for the Government, and charges against

him were dismissed. The two defendants, Flores

and Chapa, were tried by a jury and on June 24,

1974, were found guilty on both counts. On

August 19, 1974, each defendant was sentenced to

5 years on each count, such sentences to run

concurrently. The alleged offense occurred on

July 27, 1973, and the indictment was filed on

April 29, 1974. Both defendants entered a plea of

not guilty on June 7, 1974. Each of the defendants

filed a motion to suppress the evidence (the 800

pounds of marihuana) and the court by order of

June 19, 1974, stated: ''Following pre-trial

conference with counsel this day, it would appear

the two defendants were not present at the time of

the seizure of the contraband and have no standing

to complain. The motion to suppress will be

considered by the Court during the course of the

trial."' No independent hearing on the motion to

suppress was held, and counsel for Petitioner has

not been able to find anywhere in the record an

ultimate ruling on the motion.

As in the case of Almedia-Sanchez v

-6.

U. S., 413 US 266, 37 Led 2d 596, 93S. Ct. 2535,

decided by the United States Supreme Court on June

21, 1973, the basic ‘acts in this case are neither

complicated nor disputed. There is some confusion

as to just where the apprehension of Sandoval, the

alleged co-conspirator and witness for the Govern-

ment, took place, but in any event, it was near the

town of La Gloria in Starr County, Texas. Farm

Road 755 connects Rio Grande City and La Gloria.

Rio Grande City lies close to the Mexican Border.

La Gloria is approximately 30 miles from the Mexi-

can Border. Farm Road-1017 connects Hebbronville,

Texas, in Jim Hogg County, and La Gloria, and if

one goes easterly from La Gloria on Farm Road

1017, he will cross U.S. 281 which connects the

lower Rio Grande Valley and Alice, Texas. Farm

Road 755 proceeds in a northeasterly direction

from La Gloria and ultimately intersects with

U.S. 281 near the small community of Rachal in

Brooks County, Texas. One of the Border

ot «

Patrolmen testified that the truck being driven by testified "they looked suspicious because they

Sandoval was apprehended on Farm Road 1017, were traveling at a slow speed.'' The two officers

and the other Border !atrolman testified Farm turned around and started following the truck which

Road 1076, (See pages 7 and ll of Record on Appeal). had been passed by the yellow sedan at that time.

There is no Farm Road 1076 in this area. The two They turned their red light on, stopped the truck,

defendants reside in Alice, Texas, and Sandoval Officer Wheeler got out and Tharp proceeded in

resides in San Diego, Texas, approximately ten the Border Patrol car to stop the vehicle which

a

miles from Alice, Texas. Sandoval testified that had been behind the truck. The vehicle was stopped, \

he proceeded directly from Rio Grande City and the occupants (who it was later determined

towards La Gloria and, therefore, it appears were these defendants) were asked to state their

likely that Sandoval was apprehended on Farm citizenship and to open their trunk. They complied

Road 755 near La Gloria at a point approximately with both requests, and the officer released them,

30 miles from the Mexican Border. The officers as he had no reason to hold them. See p. 12 of the

testified that they were on duty on July 27, 1973, Record on Appeal. The Border Patrolmen had no

and were conducting what they called a" traffic search warrant. Sandoval testified that he was

observation’ (see p. 5 of Record on Appeal). They asked by the Officer or Officers if he was an Ame-

were proceeding in a southerly direction when | rican Citizen. He responded ''yes''; he was asked

they observed the truck going north and being if he had a driver's license, and he responded

followed by a white over yellow Ford. (See pp. 'Yes'', and showed it tothem. They then asked

5 and 6 of Record on Appeal). Patrolman Tharp ate

Se

him what he had in the truck, and he responded,

‘'nothing.'' He further stated as follows:

‘'And they said 'you sure' and I said yes. And they

said, 'why don't you tell us? We know you got

something in here.' And I said I don't know what's

in there. There is nothing in there. So one of

them climed in the truck and he told me to stay

where he could see me while the other Border

Patrolman went after them.'' (See p. 27 of

Record on Appeal). The Border Patrolmen then

proceeded to search the truck, unscrewed some

of the paneling and discovered 800 lbs of mari-

huana. See pp. 12 and 27 of Record on Appeal.

The government then made a ''deal'' with Sandoval

that if he would testify against the other parties,

ali charges against him would be dismissed. The

charges were dismissed, and in this case he

testified against Flores and Chapa. See p. 33

of Record on Appeal. In his testimony Sandoval

stated that he had known Flores approximately

»16-

one year at the time of the offense, and that he had

done some work on vehicles for Flores. In July of

1973, he testified that he made an agreement with

Flores and Chapa to fix a truck for them which was

to be used to bring marihuana from the border to

Austin. He was to be paid $1,000.00 for the trip

from Rio Grande City to Alice and another

$1,000.00 from Alice to Austin. He testified that

the repair of the truck initially was done at Flores'

house in Alice, Texas. Approximately a week

before the apprehension of Sandoval took place,

the two defendants and Sandoval drove to Rio

Grande City in Flores' vehicle and ascertained that

the rmarihuana had not crossed from Mexico. They |

then returned to Alice. See pp. 21 and 22 of Record

on Appeal. On the day of the apprehension Flores

and Chapa went to Sandoval's house and told him

that the Marihuana had gotten across and that

\

they wanted him to drive it for them. He agreed

sits

to this arrangement. See p. 23 of Record on Appeal.

The three then proceeded in the yellow car (which

was following the truc«x immediately prior to the

apprehension ) to Rio Girande City and stopped

at a house close to the river. Some persons

unknown to Sandoval then took him to a ranch

where the truck that he had fixed at Flores'

house was located. See pp. 24 and 25 and 26 of

Record on Appeal. He started the vehicle, checked

the clutch and drove to Rio Grande City. At that

point he filled up with gas and started driving

towards San Diego and was stopped by the

Border Patrolmen near La Gloria. See p. 26 of

the Record on Appeal. Sandoval further testified

that Flores and Chapa were following him in

the yellow car and passed him immediately

prior to his being stopped by the Border Patrol.

o 16.

No objection to the introduction of the

marihuana was made by counsel for Petitioner

at the time it was offered into evidence.

REASONS FOR GRANTING THE WRIT

Question No. 1 (Restated)

Did the trial court err in denying the motion

of the Petitioner, Gil Flores, to suppress the

evidence (marihuana) seized in a vehicle being

operated at the time by an alleged co-conspirator?

The facts in this case are so close to those

in Almeida-Sanchez vs United States (supra) that

there is hardly any question that the search and

seizure as to Sandoval was unlawful. The primary

issue then becomes whether these defendants have

standing to object to the unlawful search and seizure,

In Jones vs United States, 362 U.S. 257,

4 Led2d 697, 80 S Ct. 725, the Supreme Court

o}3-<

stated:

''In order to qualify as a 'person aggrieved

by an unlawful search and seizure' one must have

been a victim of a search or seizure, one against

whom the search was directed, as distinguished

from one who claims prejudice only through the

use of evidence gathered as a consequence of a

search or seizure directed at someone else.

Rule 41 (e) applies the general principle that a

party will not be heard to claim a constitutional

protection unless he ‘belongs to the class for

whose sake the constitutional protection is given. '

New York ex rel. Hatch v Reardon, 204 US 152,

160, 51 L ed 415, 422, 27 S Ct 188, 9 Ann Cas 736.

The restrictions upon searches and seizures were

obviously designed for protection against official

invasion of privacy and the security of property.

They were not exclusionary provisions against the

admission of kinds of evidence deemed inherently

-14-

unreliable or prejudicial. The exclusion in federal

trials of evidence otherwise competent but gathered

by federal officials in violation of the Fourth Amend-

ment is a means for making effective the protection

of privacy.

Ordinarily, then, it is entirely proper to

require of one who seeks to challenge the legality

of a search as the basis for suppressing relevant

evidence that he allege, and if the allegation be

disputed that he establish, that he himself was the

victim of an invasion of privacy. But prosecutions

like this one have presented a special problem.

To establish 'standing', Courts of Appeals have

generally required that the movant claim either to

have owned or possessed tue seized property or to

have had a substantial possessory interest in the

premises searched,''

See also Alderman v United States, 394

US 165, 22 Led2 176, 89S Ct 961.

-1]5-

In Mancusi vs De Forte, 392 US 364, 20 Led2

1154, 88 S Ct 2120, the Court Stated:

''Furthermore, the Amendment does not

shield only those who have title to the searched

premises. * * * It was settled even before our

decision in Jones v United States, 362 US 257, 4

L Ed2d 697, 80 S Ct 725, 78 ALR2d 233, that one

with a possessory interest in the premises might

have standing. See, e. g., United States vs Jeffers,

342 US 48, 96 L Ed 59, 72 S Ct 93. In Jones, even

that requirement was loosened, and we held that

‘anyone legitimately on premises where a search

occurs may challenge its legality...when its fruits

are proposed to be used against him. ' 362 US, at

267, 4 L Ed2d at 706, 78 ALR2d 233. The Court's

recent decision in Katz v United States, 389 US

347, 19 L Ed 2d 576, 88 S Ct 507, also makes it

clear that capacity to claim the protection of the

Amendment depends not upon a property right in

the invaded place but upon whether the area was

sibs

one in which there was a reasonable expectation of

freedom from governmental instrusion, See 389

US, at 352, 19 L ED 2d at 582."

In Katz v United States, 389 US 347, 19 L Ed

2d 576, 88 S Ct 507, the Court stated:

"In the first place, the correct solution of

Fourth Amendment problems is not necessarily

promoted by incantation of the phrase'constitution-

ally protected area.' Secondly, the Fourt Amend-

ment cannot be translated into a general constitu-

tional 'right to privacy.' That amendment protects

individual privacy against certain kinds of govern-

mental intrusion, but its protections go further,

and often have nothing to do with privacy at all.

Other provisions of the Constitution protec: personal

privacy from other forms of governmental invasion.

But the protection of a person's general right to

privay--his right to be let alone by other people--

is, like the protection of his property and of his

very life, left largely to the law of the individual

elite

States. ''

In Cash v Williams, 455 F2d 1227, 6th Cir.,

1972, the Appellant had lent his automobile to his

brother-in-law, Sharperson. Sharperson was stopped

by a deputy sheriff and charged with reckless driving

and driving without a license. A title check showed

that Sharperson's statement that the autornobile

belonged to the appellant was true. A wrecker

operator, Rainey, was summoned to the scene and

instructed to lock the automobile in his garage.

Rainey was searching the car for evidence of own-

ership and uncovered some marihuana. The Appel-

lant, Cash, was convicted of possession of mari-

huana and appealed. The Court held:

''We cannot agree with this contention,

in order to establish standing to contest a search,

a defendant must show that he owned or possessed

the seized property or that he had a possessory

interest in or was present at the premises searched.

An additional consideration arises from the fact that

-18-

when the crime charged is one of possession, a

defendant will not be forced to sacrifice his fifth

amendment rights in order to assert his fourth

amendment rights. ‘ones v United States, 362

U.S. 257, 263-264, 80S. Ct. 725, 4 L Ed. 2d 697

(1960). See also: Glisson v United States, 406 F.2d

423, 427 (5th Cir. 1969); Weed v United States,

340 F2d 827, 829 (10th Cir. 1965); United States v

Eldrige, 302 F2d 463, 464-465 (4th Cir. 1962):

United States v Lewis, 270 F.Supp. 807, 809

(S.D.N.Y. 1967), aff'd, 392 F.2d 377 (2d Cir. 1968).

We conclude that appellant's ownership of the auto-

mobile conferred standing upon him to challenge the

validity of the search and the admissibility of the

evidence seized,"'

‘'We can find no justification for the warrant-

less search by the police. The question of whether

the information supplied to the police presented

reasonable cause for a search of the automobile was

for the determination of a magistrate; only in

-19-

exceptional cases may this decision be made by the

police, "'

If the cestimony of Sandoval is to be believed

and to support a conv ction it has to be believed,

then it is evident that this Petitioner and the co-

defendant, Chapa, were the owners of the seized

goods, the marihuana. In addition, we have the

vehicle that according to Sandoval and the officers

the appellants were riding in convoy with the seized

merchandise,

Under these circumstances, it is respect-

fully submitted that this Petitioner and the co-

defendant, Chapa, have standing to object to the

unlawful search and seizure and that the motion to

suppress should have been granted.

Conclusion Under Question No. lI:

The Trial Court erred in denying the motion

of this Petitiom:to suppress the evidence and the

Court should have rendered a judgment of acquittal.

fin

Question No. 2 (Restated)

Did the trial -ourt err in permitting testi-

mony to be received rom the alleged co-conspirator”

— if we might assume, for the moment,

that the marihuana was admissible as against the

Petitioner and his co-defendant, Chapa, the testi-

mony of Sandoval should have been disallowed and

suppressed under the ''Fruit of the Poisonous

Tree'' Doctrine.

In Walder v US, 347 US 62, 98 L Ed 503,

74S Ct 354, the Supreme Court stated:

''The Government cannot violate the

Fourth Amendment--in the only way in which the

Government can do anything, namely through its

agents--and use the fruits of such unlawful conduct

to secure a conviction. Weeks v U. S. (US) supra.

Nor can the Government make indirect use of such

evidence for its case, Silverthorne Lumber Co. v

U.S., 251 US 385, 64 L ed 319, 40 S Ct 182, 24

ALR 1426, or support a conviction on evidence

= 8 s

obtained through leads from the unlawfully obtained

evidence, cf. Nardone v U.S., 308 US 338, 84 Led

307, 60 § Ct, 266. Ali these methods are outlawed,

and convictions obtained by means of them are inval-

idated, because they encourage the kind of society

that is obnoxious to free men,"'

In 29 Am Jur 2d at page 474, it is stated:

''The policy underlying the rule against

the use of evidence obtained by an unreasonable

search and seizure cannot be circumvented by the

use against the victim of evidence indirectly obtained,

as a result of information derived from the illegal

search or seizure. The exclusionary rule extends

beyond evidence directly seized in an unlawful

search to proscribe use of all evidence obtained as

an indirect result of such illegal activity--'the

fruit of the poisonous tree.' This ‘fruit of the

poisonous tree' doctrine extends, however, only

to facts which were actually discovered by a pro-

cess initiated by the unlawful act; if information

o 22 «

which could have emerged from an unlawful

search in fact stems from an independent source,

the evidence is admissible. On the other hand, a

showing that the prosecution had sufficient inde-

pendent information available so that in ‘ie normal

course of events it might have discovered the

questioned evidence without an ‘llegal search does

not excuse the illegality or cure tainted matter, '

In United States v Tane, 329 F2 848, 2d Cir.

1963, the Court stated:

'' 'The Fruit of the Poisonous Tree'

The next question which must be answered

is whether the tere mony of Wesley Pase before the

indicting Grand Jury was the derivative product of

the wiretap. We hold that it was. The identity of

Pase was derived from the wiretap, and Pase was

unwilling to testify or even admit to making any

unlawful payments until possession of the wiretap

of the December 6 conversation was revealed by

the Assistant District Attorney.

- 23 -

The government next contends that Pase's

testimony was not subject to suppression because

it was the product o: an intervening voluntary act,

breaking the necessary nexus between the tap and

the testimony. While the proffer of a living wit-

ness should not be ‘mechanically equated with the

proffer of inanimate evidentiary objects illegally

seized,' Smith v U.S., 324 F2d 879, 881 (D.C.

Cir. 1963); McLindon v U.S. 117 U.S. App. D.C.

,

to carry its burden of showing that the information

gained from the wiretap did not lead, directly

or indirectly, to the discovery of Pase and to

Pase's willingness to testify. See United States

v Coplon, 185 F2d 629, 636, 28 A.L.R. 2d 1041

(2 Cir. 1950). Indeed, the record demonstrates

that the identity of Pase and knowledge of his

implication in unlawful payments was derived from

the wiretap, and that Pase was unwilling to testify

or even admit to making any unlawful payments

- 24 e

329 F2d 238 (1964), the government has failed

until he was told by the Assistant District Attorney

that the December t « onversation between his

attorney and union of icials had been tapped. The

road from the tap to the testimony may be long,

but it is straight.’

Conclusion Under Question No, 2:

The Trial Court did err in permitting

testimony to be received from the alleged co-

conspirator, the motion to suppress should have

been granted and the Court should have rendered

a judgment of acquittal.

Question No. 3 (Restated)

Did the Honorable Court of Appeals err

in holding that even though the District Court

prior to the trial, and without a hearing, denied _

petitioner's motion to suppress on the ground of

lack of standing, the petitioner was required to

object to the introduction of the evidence in

question at the time the government offered it into

evidence and again request a hearing on his motion

outside the presence of the jury, and that his

failure to do so rendered any prior errors harm-

less?

Included within this question is the

further question, ''In a motion to suppress, with

what degree of particularity must a defendant

allege his basis for such motion, the facts on which

he relies to establish standing to object, and the

evidence he desires to suppress; and must the

defendant object to the introduction of such evi-

dence when an attempt is made to introduce it

26

at the trial on the merits? "'

In U.S. v Warrington, 17 FRD 25, USDC

for the Northern District of California (1955), the

Court stated:

"As a guide for further proceedings

in this particular case and all future proceedings

in this Court under par. (e) of Rule 41 of the Rules

of Criminal Procedure, this Court now establishes

the following procedure, to-wit:

1. The motion for return of pro-

perty and to suppress evidence must be in writing.

2. The motion must set forth in

detail the ultimate facts which will be relied upon

by the moving party, but should not set forth facts

of an evidentiary nature.

3. The motion should not be

verified.

4. The motion must be supported

by points and authorities.

=. 2

5. No affidavit may be filed in the

proceeding by either the moving party or the

Government without the express consent of the

Court having been first had and obtained. (An

affidavit will always be permitted when either

party contends that the proceeding can be deter-

mined on a point of law without an issue of fact

being involved. )

6. The defendant will be required

to support his motion by competent evidence that

must make a prima facie showing that his motion

has merit.

7. The Gevernment will be given

an opportunity to controvert the defendant's

evidence given in support of his motion.

8. Both parties will be given all

reasonable opportunity to rebut the testimony

offered by the other.

9. The defendant may not be cross-

examined by the government unless he voluntarily

-28-

offers himself as a witness in the proceedings.

10, I'nder no circumstances may

either party digress from the true issues involved

in this proceeding, and use it for a ‘fishing

expedition. ' "'

This case was decided well before the decision of

the Supreme Court in Simmons v U.S., 390 U.S.

377, 19 Led2 1247, 87S Ct 967 (1968), and it is

apparent that the court was requiring the defendant

to sacrifice his Fifth Amendment Rights in order

to claim his Fourth Amendment Rights, as he

would have had to admit guilt in his motion to

suppress with no assurance of any immunity.

In Simpson v U.S. 346 F2 291, 10th Cir.

1965, the Court made the following statement:

‘Appellant here did make a timely motion

to suppress evidence, and, while the motion was

general, the hearing was full and revealed the

activities of federal officers. The Constitutional

-29-

violation was adequately protested. "'

In Waldron v U.S., 219 F2 37, District

of Columbia (1955), the Court stated:

It seems to us the same elemen-

tary principles must apply when a motion to suppress

has been made under Rule 41 (e) and denied by the

court. In denying such a motion based upon an

allegation of unconstitutional search and seizure,

the court passes upon an important point of law,

frequently one of the most important in the case.

The court conducts a hearing for the purpose,

receives evidence, and renders a legal judgment.

If it were necessary that the point be raised again

during the course of the trial, the whole procedure

of hearing, testimony, etc., would have to be

repeated, a useless performance; or the court

would merely enter again its prior conclusion

without further hearing, an equally useless per-

formance. The movant has a right to renew his

point; it would be safer and more skillful to

-30-

interpose an objection when the evidence is offered;

but we think he is not required to do so. He does

not waive it and is not barred from pressing it

upon appeal, if he merely abides the court's

ruling and tries the remainder of his case accord-

ingly. To hold otherwise would be to inject a pure

technicality, without a purpose, into the conduct

of trials, requiring counsel to repeat a contention

already disposed of in the proceeding; and this in

respect to a waiver of a constitutional right. The

fact that the court might in its discretion enter-

tain a motion to suppress during the trial does not

make it obligatory upon parties to renew such

motions during trial 0: to object in any other way

to the evidence at the trial.''

In Simmons, the Court stated:

''We therefore hold that when a defendant

testifies in support of a motion to suppress evidence

on 4th amendment grounds, his testimony may not

thereafter be admitted against him at trial on the

sie

issues of guilt unless he makes no option, , . , ;

endant should only be required to state the time,

ae!

nsel for Petitioner has been unable to : :, 7 ,

piace and date of the nlawful search and seizure,

,

ind any firm holding that the statements in the ' » ol ,

the parties involved, and that his Fourt Amend-

motion may not be considered a judicial admission 5 , 2. tol

ment rights were violated. This information

avainst interest, even though it would certainly 13 h il}

would apprise the Government to which illegal

appear that statements in the motion would come ; , : _.

search and seizure the defendant refers. LThere-

inder the Simmons Rule. However, the defendant — _

after, the defendant would have a right to prove

orced to take that chance. . ; , , . 1:

at the hearing on the motion the basis for his

Old Rule 41 (e) of the Federal Rules of

contention that his FourhAmendment rights had

Criminal Procedure, reads as follows:

been violated, upon what facts he relies to give

See Appendix C pages 1! and 2. as

him standing to object and what evidence he

New Rule 41 (e) and (f) of the Federal Rules

ae

desires tohave suppressed. It seems clear that

of Criminal Procedure now read as follows:

inder the authority of Waldron v U.S., he is

See Appendix D pages 1 and 2. : ' ;

, no. required to renew his objections.

However, this new rule sheds no light whatsoever | on ' .

Conclusion Under Question No. 3:

on the question, . = , . ,

q The decision of the Honorable Court of

Therefore, with little, if no, authority, , = ;,

’ Appeals in this case is in direct conflict with the

to solve this dilemma, this Petitioner respect- : : _

Court of Appeals in the Waldron vs U.S., supra,

fully submits that in a motion to su ress a ; . .

PP case, and this Honorable Court should follow

-32- atte

the well-reasoned decision in the Waldron case

and find that the failure to object to the intro-

duction of the evidence at the time it was offered

did not render any prior errors harmless.

Question No. 4 (Restated)

Did the Honorable Court of Appeals err

in holding, if indeed it did so hold, that the testi-

mony of the Border Patrolmen who stopped and

searched the automobile in which the Defendants

were riding should not have been suppressed”

Border Patrolman Wheeler testified in

part as follows:

Q Will you please tell the court and

jury the circumstances around the stopping of that

vehicle”?

A Patrol Agent Tharp and I were

conducting what we call a traffic observation, and

we were proceeding on 1017 which runs between

Hebbronville and La Gloria, as we were proceed-

9H.

ing south, ten miles south of La Gloria, we observed

this '62 Chevrolet stake bed truck going north on

the highway as we were going south and behind it

was a white over yellow Ford. Agent Tharp was

driving our patrol vehicle and we turned around and

gave pursuit to the two vehicles and in doing so, the

Ford passed the truck. We pulled in behind the

stake bed truck and redlighted it with our car and

pulled the truck over and I was iet out to the truck

and my partner, Mr. Tharp, proceeded on to check

the Ford car, ---.'' (Lines 18-25, p. 5 and Lines

1-7, p. 6 of Transcript.)

Q And you saw ahead of you a truck?

A Well, as we were going south the

truck was coming toward us and it passed, like

this, and the car was directly behind the truck,

sir.

Q. Then the first time you saw the car

was after you passed the truck?

offic

top, and we thought we had something there going.

A Yes, sir, the car was behind the

It looked suspicious because they were traveling at

truck,

a slow speed,

Q And you all decided to turn around

MR. JOHNSON: I[ am going to object to any

and follow the truck.

opinions, Your Honor.

A Ve decided to check both vehicles,

THE COURT: I think that is well taken, I

Q And in the process of you all turn-

sustain it.

ing around, the car had gone ahead and passed the

Q Just tell us what you did.

truck”

A SoI1was driving and turned the red light

A Yes, sir, as we turned around,

on and stopped the truck and my partner got out

he passed the truck and went ahead.

with the driver of the truck and then I proceeded

(Line 25, p. 7; and Lines 1-13, p. 8 of Transcript).

and stopped the Ford.

Border Patrolman Tharp testified in

Q How far away did you stop the Ford from

part as tollows:

the truck?

Q Will you please tell the court and

A Half a mile or mile.

the jury, the circumstances around your seeing

Q What happened when you stopped the car?

Mr. Sandoval and Mr. Flores and Mr. Chapa”

A I identified myself as a Border Patrol-

A We were going south on Farm to

man and asked them to state their citizenship, and

Market Road 1017 and we met a white Chevrolet

asked them to open the trunk, which they did

truck with a van type body on it followed very

readily, and I had no reason to hold them so!

closely by a yellow LTD Ford with a white vinyl

-36-

oSte

turned them loose." (Lines 5-25, p. ll and Lines

1-4, p. 12 of Transcript).

In U.S. v Brignoni-Ponce, U.S.

, 45 Led2 607, 95S Ct , decided

on June 30, 1975, the Supreme Court held that:

''Even if they (the officers) saw

enough to think that the occupants were of Mexican

descent, this factor alone would justify neither a

reasonable belief that they were alien, nora

reasonable belief that the car concealed other

aliens who were illegally in the country. ---The

likelihood that any given person of Mexican

ancestry is an alien is high enough to make

Mexican appearance a relevant factor, but stand-

ing alone it does not justify stopping all Mexican-

bad

Americans to ask if they are aliens. '"'

Certainly the fact that a car is traveling

slowly would not justify any officer in stopping

it unless there were other relevant factors.

-38-

This Petitioner respectfully states, therefore,

that the evidence of Border Patrolmen Tharp and

Wheeler, insofar as it pertains to the stopping of

the Petitioner's vehicle, should be suppressed.

Conclusion Under Question No. 4:

The Honorable Court of Appeals did err

in holding, if it can be assumed that it did so

hold that the testimony of the Border Patrol-

men should not have been suppressed. The

testimony shou’ have been suppressed and the

trial court should have rendered a judgment of

acquittal.

SUMMARY

It seems paientlyv clear that the Trial

Court erred in denying the Petitioner's moiion to

suppress on the ground that the petitioner did

not have standing solely because he was not

present at the time of the seizure. This being

the case, it is respectfully urged that it would

-39-

have been completely useless to have attempted CERTIFICATE OF SERVICE

to argue the matter further with the Court or to | I hereby certify that on the 2nd day of

even ask to put on additional evidence, since any January, 1976, two copies of Petitioner's

evidence could not have changed the fact that the Petition for a writ of certiorari were by me

petitioner was not present at the time of the , mailed to the United States Attorney for the

seizure and, therefore, there is no indication Southern District of Texas, P.O. Box 61129,

whatsoever that the Court would have changed Houston, Texas, 77061, and three copies were

its mind even if a hearing had been had. on said date mailed to the Solicitor General of

the United States, Department of Justice,

WHEREFORE, Petitioner respectfully is Washington, D.C. 20530.

requests that a writ of certiorari issue to review GA »

” KZ - a HOT es

the judgment and opinion of the United States é ¥. G. ger

Court of Appeals for the Fifth Circuit. i

Respectfully submitted,

J. G. Hornberger

915 Victoria St.

Laredo, Texas 78040

John L. Johnson

1620 Guaranty Bank

Corpus Christi, Texas 78401

Attorneyg for Petitioner

“ -

-4]-

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 74-3284

UNITED STATES OF AMERICA,

Plaintiff- Appellee

V.

GIL FLORES AND WILLIE CHAPA,

Defendants -Appellants

Appeal from the United States District Court

for the Southern District of Texas

( October 30, 1975 )

Before BROWN, Chief Judge, TUTTLE and

RONEY, Circuit Judges:

PER CURIAM:

Appellants Flores and Chapa appeal

from convictions of conspiracy to possess

marijuana with intent to distribute, a violation

of 21U.S. C. §§ 841 (a) (1) and 846, and

App. A-!

of aiding and abetting one Sandoval, an un-

indicted co-conspirator, to possess with intent

to distribute the sarre quality of marijuana.

They assign as error a pre-trial ruling by

the district court that they lacked standing to

challenge the search of the vehicle which

produced the marijuana in question,

Evidence produced at trial, primarily

the testimony of Sandoval as the government's

witness, showed that appellants hired

Sandoval to repair a truck and then drive

it with a load of marijuana from Rio Grande

City to Austin, Texas. En route to Alice,

Texas (a planned stop prior to Austin),

however, Sandoval, who was being followed

closely by appellants m another vehicle, was

stopped and questioned by Border Patrol! agents

as were appellants. Appellants were not pre-

sent at the scene when the search of Sandoval's

App. A-2

vehicle was conducted and the marijuana dis-

covered, Their pre-trial motion to suppress,

moreover, failed to allege any sort of proprie-

tary or possessory interest in the vehicle or the con-

traband. See Brown v. United States, 411 U.S.

223 (1972). The district court, without a hearing

denied their motion to supress on the ground of

lack of standing.

Subsequently, when the evidence re-

sulting from the search was introduced at the

trial no objection was made by the defendants.

Appellants argue that the fact that

the district court denied them the opportunity

to prove standing in a pre-trial hearing relieved

tk *m from the duty to object a trial to the

introduction of the evidence at issue here. We

cannot agree. Had appellants made such an ob-

jection during the course of the trial, the dis-

trict court could then have held a hearing, out-

side the presence of the jury, on the standing

App. A-3

issue -- whether appellants, as they now claim

on appeal, had demonstrated a possessory or pro-

prietary interest in tie truck or marijuana suffi-

cient to satisfy Brown, Given the existence of such

an opportunity to object and request a hearing

and appellants' failure to do so, we hold that

under the circumstances of this case they are

foreclosed from raising the issue on appeal.

It was the introduction of the evidence at the

trial that would have been harmful error if it

was illegally obtained. There having been no

objection to its reception into evidence any prior

errors became epenboue. See Fed, R. Crim.

P, 51 and 52,

JUDGMENT AFFIRMED.

App. A-4

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Old Rule 41 (e) of the Federal Rules of Criminal!

Procedure, read as follows:

"Motion for return of property and

UN Nn ste -S 21C

VSD FR Tas OF AIC, to suppress evidence. --A person aggrieved

Plaintiff-Appellee by an unlawful search and seizure may move

the district court for the district in which the

Gill. FLORES AN PILL oH :

” ORES AMD WELLES CHAMA, property was seized for the return of the

Detendants-Appellants property and to suppress for use as evidence

anything so obtained on the ground that (1) the

Appeal from the United States District Court

; roperty was illegally seized without warrant,

for the Southern District of Texas — Y B y

or (2) the warrant is insufficient on its face,

ON PETITION FOR REHEARING

or (3) the property seized is not that described

| December 4, 1975 ) in the warrant, or (4) there was not probable

Before FROWN, Chief Judge, TUTTLE and cause for believing the existence of the grounds

RONEY, Circuit Judges. on which the warrant was issued, or (5) the

PER CURIAM: warrant was illegally executed. The judge

IT IS ORDERED that the petition for shall receive evidence on any issue of fact

rehearing filed on behalf of Gil Flores in the necessary to the decision of the motion. If

above entitled and numbered cause be and the the motion is granted the property shail be

same is hereby denied. App. C-

App. B-!

is

_ a

New Rule 41 (e) and (f) of the Federal Rules of

restored unless otherwise subject to lawful

Criminal! Procedure now read as follows:

detentian and it shal! not be admissible

; ‘Motion fur Return of Property. A

in evidence at any hearing or trial. The

. ; person aggrieved by an unlawful search

motion to suppress evidence may also be

and seizure may move the district court

made in the district where the trial is to

for the district in which the property was

be had. The motion shall be made before

seized for the return of the property on the

trial or hearing unless opportunity therefor

. ; yround that he is entitled to lawful possession

did not exist or the defendant was not aware

of the property which was illegally seized,

of the grounds for the motion, but the court

ae The judge shall receive evidence on any

in its discretion may entertain the motion

issue of fact necessary to the decision of

at the trial or hearing, "'

the motion. If the motion is granted the

property shall be restored and it shall not

be admissible in evidence at any hearing

or trial. If a motion for return of property

is made or comes on for hearing in the

district of trial after an indictment or infor-

mation is filed, it shall be treated also asa

motion to suppress under Rule 12."

App. C-¢ App. D-!

''Motion to Suppress. A motion

to suppress evidence may be made in the

court of the district of trial as provided

in Rule l2.

App. D-2