Petition — Bordeaux v. United States

MICHASL ROD4K, fp

——<— - ..-.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

NO. 75-1108

JERRY JAMES BORDEAUX,

Petitioner,

-ys-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Patrick J. Briggs, Esq.

HARRINGTON, WADDELL §& BRIGGS

520 West Ash, Suite 300

San Diego, California 92101

(714) 238-1355

Attorneys for Petitioner

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

NO.

JERRY JAMES BORDEAUX,

Petitioner,

-vs-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

INDEX

Table of Cases

Opinion Below

Jurisdiction

Questions Presented for Review

Constitutional Provisions Involved

Statement of the Case

Statement of the Facts

Reasons for Granting the Writ

I. The affirmation of a stop

and detention based upon

less than a "founded sus-

picion" is offensive to

the requirements of the

Fourth Amendment and pre-

vious Supreme Court deci-

sions.

II. The stop and search of pe-

titioner's vehicle cannot

be justified as a valid

border search and there-

fore is not within one

of the delineated excep-

tions to the probable cause

Or warrant requirements of

the Fourth Amendment.

10

10

12

LIl. The evidence presented

in the instant case was

insufficient to support

the finding of guilt be-

yond a reasonable doubt

that petitioner possessed

marijuana with intent to

distribute. 16

Conclusion 19

Appendix A - Order Affirming

Appendix B - Order Denying

Petition for Re-

hearing and Request

for Hearing in Banc

ii

TABLE OF CASES

Cases

Alexander v. U.S., 362 F.2d

379 (9th Cir., 1966)

A’meida-Sanchez v. U.S., 413

i 266 (1973) 7 . _ . .

Arnellanes v. 302 F.2d

603 (Sth Cir 362)

Bettis v. U.S., 408 F.2d 563

(Oth Cir., 1969)

Coolidge v. New Hampshire, 403

Corngold v. U.S., 376 F.2d 1

a Gates See « 6 6 8

Doherty v. U.S., 381 F.2d 719

(9th Cir., 1963)

Evans v. U.S., 257 F.2d 121, 126

(9th Cir., 1958) i. «

Gonzales v. U.S., 301 F.2d 31

(9th Cir., 1962) ‘

Henry v. U.S., 361 U.S. 98 (1959).

Katz v. U.S., 389 U.S. 347-357

(1967) oe ee ¢ 2

Ong Way Jong v. U.S., 245 F.2d 392

Oth are « 4 é 6 «68.4

iii

Page

15

14,15

17

17

13

13,14

18

People v. Henze, 253 C.App.2d

986 (1967) . 2a eo

Terry v. Ohio, 392 U.S. 1 (1967)

U.S. v. Bowen, 500 F.2d 960

(9th Cir., 1974)

U.S. v. Gardner, 475 F.2d 1273

(9th Cir., 1973) :

U.S. v. Jackson, 423 F.2d 506

(9th Cir., 1979)

U.S. v. Lacefield, 468 F.2d 170

(Oth Cir., 1972)

U.S. v. Majourau, 474 F.2d 766

(9th Cir., 1973) :

U.S. v. Markham, 440 F.2d 1119

(9th Cir., 1970) ;

U.S. v. Martin, 483 F.2d 974

(Oth cir., 1974)

U.S. v. Thomas, 453 F.2d 141

(9th Cir., 1971)

U.S. v. Wailing, 486 F.2d 229,

(9th Cir., 73) ° ¢

U.S. v. Weil, 432 F.2d 1320

(9th cir., 1970)

U.S. v. Williams, 459 F.2d 44

(Sth Cir., 1972)

Wilson v. Porter, 361 F.2d 412

(9th Cir., 1966) ,

lv

235

17

15

17

12,15

15

18

17

10

15

11

10

Other Authorities:

U.S. Constitution Amendment IV

Statutes:

28 USC

21 USC

18 USC

21 USC

19 USC

1254(1)

841(a) (1)

420 8(a)(2)

841(b)(1)(B).

1581 (a)

3,16

13

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

NO.

JERRY JAMES BORDEAUX,

Petitioner,

-vs-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

Petitioner, Jerry James Bordeaux,

respectfully prays that a Writ of Certi-

orari issue to review the judgment and

opinion of the United States Court of

Appeals for the Ninth Circuit entered No-

vember 12, 1975, rehearing and request

for hearing in banc denied, January 7,

1976.

OPINION BELOW

The Court of Appeals entered its

unpublished memorandum decision No. 75-

2291, on November 12, 1975. A copy of

the opinion is attached as Appendix A.

Petition for Rehearing and Request for

Hearing in Banc were denied on January 7,

1976. <A copy of the order denying the

petition for rehearing and request for

hearing in banc is attached as Appendix

B.

JURISDICTION

On November 12, 1975, the United

States Court of Appeals affirmed the con-

viction of petitioner for possession of

marijuana with intent to distribute (Ap-

pendix A). Rehearing and request for

hearing in banc were denied on January 7,

1976. The jurisdiction of this court is

invoked under Title 28, United States Code,

Section 1254(1).

QUESTIONS PRESENTED FOR REVIEW

I. Was the information known by

U.S. Customs agents at the time of their

detention and arrest of petitioner suf-

ficient to constitute “founded suspicion"

or probable cause to justify such action?

Il. Can the detention and search

of the boat be justified as a valid bor-

der search where the U.S. Customs agents

had no information that petitioner's boat

or any of the co-defendants had left the

territorial limits of the United States?

III. Was the evidence presented suf-

ficient to support the finding of petition-

er's guilt where customs agents observed

him merely driving a truck and trailer to

San Diego Bay whereupon two co-defendants

loaded a boat onto the trailer which was

subsequently found to contain contraband?

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 war-

rants shall issue, but

upon probable cause,

supported by oath or af-

firmation, and particu-

larly describing the

place to be searched

and the persons or

things to be seized."

STATEMENT OF THE CASE

This is an appeal from an affirma-

tion of a judgment of conviction by the

Circuit Court of Appeals for the Ninth

Circuit of petitioner Jerry James Bordeaux

for possession of a controlled substance,

marijuana, with intent to distribute, in

violation of 21 U.S.C. 84l(a)(1).

On August 14, 1974, the Grand Jury

for the Southern District of California

3

returned a four count indictment against

petitioner Bordeaux and two co-defendants.

On October 21, 1974, petitioner

filed his motion to suppress evidence as

having been seized without probable cause,

(Clerk's Record, hereinafter C.R., p. 10-

14), with the government filing its motions

in opposition on November 4, 1974 (C.R.,

16-19).

On November 18, 1974, after receiv-

ing sworn testimony and arguments by coun-

sel in support and opposition of the mo-

tion to suppress, the Court denied said

motion. (C.R., 20)

Following petitioner's execution

of a "Waiver of Trial by Jury and Waiver

of Special Findings of Fact" on March ll,

1975, the various parties agreed to pro-

ceed by way of a stipulated facts trial.

(C.R., 22-23) Stipulations as to the na-

ture of the contraband (marijuana) and the

chain of custody were entered into, as well

as stipulations that the court could consid-

er the evidence presented at the hearing on

the motion to suppress.

On March 11, 1975, the court found

petitioner Bordeaux guilty of Count Four

as set forth above and later sentenced

him to the custody of the Attorney General

for a period of three years pursuant to

18 U.S.C. 4208(a)(2). Additionally, a

five year term of special parole was pre-

scribed under 21 U.S.C. 841(b)(1)(B).

(C.R., 24) Petitioner filed notice of

appeal on May 19, 1975, and was allowed

to remain at liberty on the original

bond.

On November 12, 1975, the United

States Court of Appeals for the Ninth

Circuit affirmed the petitioner's convic-

tion (Appendix A) and on January 7, 1976,

denied petitioner's Petition for Rehear-

ing and Request for Hearing in Banc (Ap-

pendix B).

STATEMENT OF THE FACTS

On the 26th of July, 1974, Agent

Clyde Burnett of U.S. Customs, CPO Unit,

San Diego, California, was on duty in

the area of Shelter Island in San Diego

Bay. At this time, he noticed a boat be-

ing launched into the water with one oc-

cupant aboard. The boat's trailer and

towing vehicle, a Chevrolet Blazer, then

went to one of the nearby marinas and

picked up the driver of the boat rather

than leaving Shelter Island. (Reporter's

Transcript, hereinafter R.T., n.6, 1.6)

Agent Burnett testified that the two men

were in their middle and late twenties

(R.T., p. 10, 1.6). Petitioner Bordeaux

was 35 years old, his date of birth be-

ing March 1, 1939.

Agent Burnett never saw the boat

taken out of the water, but had seen it

launched on other occasions. (R.T., p. 6

1. 20) Agent Burnett's workday was from

8:00 A.M. to 4:00 P.M. (R.T., p. 34, 1.

11) A check of the boat registration num-

ber revealed it was registered to petition-

er Bordeaux, (R.T., p. 8, 1. 3 and p. 9,

1. 25) who resided at 925 South Magnolia,

5

?

El Cajon, California (R.T., p. 36, 1. 8).

rhe towing vehicle was also registered at

the same address, to Willford and Elizabeth

Bordeaux (R.T., p. 35, 1. 5).

The boat was described as a high

speed open boat with an inboard engine

and outboard drive (R.T., p. 10, 1. 9 and

1. 12) registered on July 19, 1974 (R.T.,

p. 29, 1. 1) one week before Agent

Burnett's initial observation. The boat

had a slip rented by the month at the Voy-

ager Marina in San Diego Bay (R.T., p. 7,

oa Bane

Agent Burnett subsequently inspected

the boat in its berth at the Marina (R.T.,

p. 10, 1. 25), and described it as a new

boat (R.T., p. 27, 1. 9). There was no

contraband seen on or near the boat (R.T.,

p. 28, 1. 4). There was nothing unusual]

about the boat (R.T., p. 28, 1. 7). There

had been no alterations or modifications

to enable the boat to carry contraband

(R.T., p. 28, 1. 11). Agent Burnett ob-

served nothing suspicious about the boat

except that it was very clean (R.T., p.

28, 1. 17). He further testified that it

was not unusual to keep a new boat clean

(R.T., p. 28, 1. 22). Agent Burnett fur-

ther testified that it is necessary to

have a new boat taken out of the water to

have it serviced on a regular basis.

The name "Bordeaux" was run in the

computer and came back a "hit" (R.T., p.

8, 1. 14) indicating that he had been in-

volved in an Arizona case (R.T., p. 9, l.

1) which was adjudicated as a misdemeanor.

[Ro Feo Be BSe Be ES)

The boat was never seen engaging

in any activity connected with narcotics

or dangerous drugs or the smuggling of

any type of merchandise (R.T., p. 39, 1.

22). In fact, the boat was never seen

outside of San Diego Harbor, nor was

there ever any information that the boat

actually left the harbor (R.T., p. 39, l.

1 and R.T., p. 43, 1. 8) or the continen-

tal territory of the United States (R.T.,

DB. 83, bv 23)-

Agent Burnett testified that both

the slip where the boat was docked and

the "J" Street ramp where the boat was

subsequentiy seized are in San Diego Bay,

and further that it is not necessary to

leave the United States to go from one

to the other. (R.T., p. 45, 1. 8)

Southern California is a most pop-

ular boating area, (R.T., p. 40, 1. 11)

with tens of thousands of privately owned

pleasure boats. At approximately 7:00 P.M.

on August 3, 1974, Agent Burnett noticed

petitioner's boat was gone from its slip

at the Marina. He then sent agents to

the Lemon Street address in La Mesa to

watch the Chevrolet Blazer and trailer.

At approximately 11:00 P.M., the Blazer

and trailer left the La Mesa address and

went to a "J" Street launching ramp in

Chula Vista, adjacent to San Diego Bay.

The Blazer and trailer circled two or

three times and then left and drove around

Chula Vista before returning to the ramp.

Shortly thereafter, the Blazer and trail-

er returned to the La Mesa address. (R.

Zig Bs BBs Be Bee

Sometime after 12:00 midnight,

August 6, 1974, petitioner's boat arrived

at the "J" Street ramp (R.T., p. 3, 1. 4)

with two individuals aboard. One remained

on board while the other walked up "J"

Street to a telephone booth on Broadway,

made a phone call and started to return to

Che BOSC. hike e Be BBs: Be 28)

The Blazer and trailer arrived at

the ramp while the telephone caller was

walking back to the boat. At this time,

the Blazer was being driven by petitioner

Bordeaux. Prior to this time, petitioner

had not been identified as the driver of

the Blazer. (R.T., p. 46, 1. 20)

The boat was loaded on the trailer

and pulled partially out of the water.

The trailer had a flat tire and the boat

was started back towards the water when

Agent Burnett ordered all co-defendants

to cease further activity. (R.T., p. 16,

1. 20)

Petitioner Bordeaux was never seen

aboard the boat by either Agent Burnett

or any other agent. In fact, petitioner

Bordeaux never left the vehicle until or-

dered to do so by the agents. (R.T., p.

51, 1. 21) Agent Burnett was also satis-

fied that petitioner Bordeaux had not been

outside the United States. (R.T., p. 52,

1. 3) Petitioner Bordeaux was cooperative

at all times in every way, never attempt-

ing to run or flee or take other evasive

OCTEOR. Chub cs Be Be Be BI

At no time did the customs agents

have or seek an arrest or search warrant.

8

(R.T p. 29, 1. 1) <A search of the boat REASONS FOR GRANTING THE WRIT

was then conducted and revealed marijuana.

[Reten Ba BVe Be DB |

I

The affirmation of a stop and

detention based upon less than

a founded suspicion is offen-

Sive to the requirements of

the Fourth Amendment and pre-

vious Supreme Court decisions.

The Supreme Court has made it clear

that while evidence which would establish

defendant's guilt at trial is not neces-

Sary in order to arrest or search, "common

rumor or report, suspicion, or even strong

reason to suspect" will not suffice.

Henry v. United States, 361 U.S. 98 (1959).

In Terry v. Ohio, 392 U.S. 1 (1967),

the Supreme Court indicated that a stop

and frisk based upon facts which would

lead to a founded suspicion that criminal

activity was being engaged in by the defen-

dant was lawful. (See also Wilson v.

Porter, 361 F.2d 412, 9th Circuit, 1966).

The Court of Appeals in United

States v. Walling, 486 F.2d 229, 235 (9th

Circuit, 1973), quoting People v. Henze,

253 C. App. 2d 986 (1967), required that

officers have a "rational suspicion" that

"some activity out of the ordinary is or

has taken place" which, in some fashion,

* is connected with the subjects under scru-

tiny and which, in some manner, suggests

that the activity was criminal.

Under the foregoing requirements,

e it is apparent that the affirmative

10

allegations on which the government relies

does not warrant the belief that the defen-

dant was engaged in an unlawful enterprise

or that the boat contained illegal merchan-

dise. Specific articulable facts that a

crime was being committed were not the

product of Agent Burnett's observations.

On the contrary, the activity observed was

consistent with innocent behavior. It is

a well-established principle of law that

where events are as consistent with inno-

cent activity as with criminal activity,

a detention based on those events is un-

lawful.

The fact that a new boat is being

taken from the water at night is certainly

not suspicious. New boats need servicing

on a regular basis and the fact that Agent

Burnett never saw the boat being taken

from the water is more than likely due to

the hours he was working--8:00 A.M. to

4:00 P.M. In addition, from his location,

Agent Burnett could not observe the numer-

ous ramps in San Diego Bay from which a

boat could be removed from the Bay.

Agent Burnett also related the fact

that he had run petitioner Bordeaux's name

on the computer and obtained a "hit". How-

ever, Agent Burnett never made any effort

to follow up this inquiry to ascertain the

validity of this information or extent of

involvement or nature of the crime, if any.

In United States v. Williams, 459 F.2d 44

(9th Cir., 1972), the Court held that a

computer report is only as good as the in-

formation supplied by the reporting offi-

cer. Here there was no effort to validate

any of the computer information.

1]

The activity which is set out in

the Statement of Facts indicates activity

which is clearly consistent with innocence

and was not sufficient to establish a

founded suspicion upon which to base a

tawful detention. United States v.

Majourau, 474 F.2d /66, (9th Cir., 1973).

[It appears that Agent Burnett acted on

nothing more than the suspicion condemned

in Henry v. United States, 361 U.S. 98

(1959).

It is essential that the Court

grant the requested Writ in order to

clarify an area of law certain to be chal-

lenged time and time again within all jiur-

isdictions adjacent to international bor-

ders. The facts of this case will continue

to be presentec given our proximity to

international borders, the tremendous num-

ber of pleasure boats within numerous jur-

isdictions and our continued grappling with

the slippery "founded suspicion" standard.

It is respectfully requested that a uni-

form and specific opinion of the Court

dealing with "founded suspicion", particu-

larly in similar "boat and airplane" cases,

be decided to enable the lower courts to

more easily and efficiently deal with

such cases.

I]

The stop and search of

petitioner's vehicle can-

not be justified as a val-

id border search and there-

fore 1s not within one of

the delineated exceptions

12

to probable cause or war-

rant requirements of the

Fourth Amendment.

"Searches conducted outside the

judicial process, without prior approval

by judge or magistrate, are per se un-

reasonable under the Fourth Amendment--

subject to a few specifically established

and well-delineated exceptions." Katz v.

United States, 389 U.S. 347-357 (19567) and

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

(1971).

The crossing of an international

border is in and of itself an exigent cir-

cumstance allowing for warrantless searches

to be reasonable within the meaning of the

Fourth Amendment. However, this exception

must be confined to its appropriate scope.

In Corngold v. United States, 376

F.2d 1 (9th Cir., 1966), the Court held

that a statute containing broad delegation

of authority to customs agents to search

and seize imported merchandise could not

be used to authorize a search which would

otherwise be prohibited by constitutional

provisions. "We have treated the outer

limits of authority delegated by the sta-

tute as available only in border searches

and there is nothing in the record to sug-

gest that the search of appellant's pack-

age occurred in the course of an entry

into this country."

To permit Title 19 USC Section 1581

(a) to authorize warrantless searches with-

out the underlying justification for the

Original exception, namely, evidence of

13

international border crossing would be a

serious departure from the reasoning of

Corngold, supra.

The Almeida-Sanchez v. United

United States, 413 U.S. 266 (1973), deci-

sion held that warrantless, random, roving

stopping of automobiles by immigration of-

ficers in search of illegal aliens, not

conducted at the international boundary or

its functional equivalent or without prob-

able cause, was a violation of an indivi-

dual's rights protected by the Fourth

Amendment. Although stopping short of de-

claring the statute under which the offi-

cers were operating unconstitutional, the

Court did hold that it was unreasonably

applied in regard to a search twenty miles

from the border by agents who had no know-

ledge of any recent border crossing by the

appellant or his vehicle. The language of

the opinion eliminates the application of

the statute except in cases where the

search is conducted as the functional

equivalent of a border search. Such war-

rantless searches of vehicles are unconsti-

tutional unless conducted in such a manner

as to be reasonably certain that virtually

every vehicle searched will have just

crossed the international border. United

States v. Bowen, 500 F.2d 960 (9th Cir.,

1974). The same must be logically applied

to the present situation if pleasure boat

enthusiasts are to enjoy any semblance of

Fourth Amendment protection from govern-

mental intrusions.

The facts of this case state very

clearly that Agent Burnett had no facts

or reasonable justification to believe

14

that the boat had ever left San Diego Bay,

both the rented marina slip on Shelter Is-

land and the "J" Street ramp being located

within San Diego Bay. Furthermore, there

was no testimony in the instant case that

the defendants were ever closer than seven

miles from the border or that any of the

individuals had recently crossed the bor-

der. Without evidence of such a border

crossing, this detention and search re-

moved from the border area cannot fall

within the extended border search trilogy

of Alexander v. United States, 362 F.2d

379 (Sth Cir., 1966); United States v.

Weil, 432 F.2d 1320 (9th Cir., 19/70); and

United States v. Markham, 440 F.2d 1119

(Sth Cir., 19/70). Therefore, to sustain

this detention and search as a border

search would be contrary to the principles

of Almeida-Sanchez v. United States, supra,

and would allow for wholesale violations

of the Fourth Amendment rights of citizens

who frequent the many hundreds of pleasure

boat basins which dot our coastline.

The government cannot attempt to

justify the search herein by custom agents

as anything but a border search because

U.S. Customs Agents do not have general po-

lice jurisdiction. The court in U.S. v.

Majourau, supra, citing U.S. v. Jackson,

ok F.2d 506 (9th Cir., I970) said:

"Moreover, customs agents

‘are not, like local or

state police, general

guardians of the public

peace.' They are customs

agents, with duties and

powers limited to activities

15

of the type that the

title implies."

It is imperative then that a concise

delineation of the power of the customs

agents to conduct such searches be made

by this Court so that our jurisdictions

can effectively protect the Fourth Amend-

ment rights of pleasure boaters and water

enthusiasts.

II]

The evidence in the in-

stant case was insuf-

ficient to support the

finding of guilt beyond

a reasonable doubt that

petitioner possessed

marijuana with intent

to distribute.

The cases are uniform in their find-

ing that in order to support a conviction

for possession of a controlled substance

with intent to distribute, in violation of

21 U.S.C. 841(a)(1), there must exist both

knowledge of the contraband and dominion

and control. In the present case, the

government failed to show either dominion

and control or knowledge of the contraband

by petitioner, and unless mere conjecture

is used, there are no facts to supply

either.

The facts as related by Agent

Burnett establish that a boat was regis-

tered to Jerry James Bordeaux, and a

trailer was being pulled by a vehicle

registered to Willford and Elizabeth

16

Bordeaux, both registered to the same

address.

There is no other evidence to con-

nect Jerry James Bordeaux with the boat

on the day of its seizure. He was never

seen on it, or even near it, other than

at the time of the arrest. The two indi-

viduals described on the boat and in the

van fit the description of the co-defen-

dants, who plead guilty, but the descrip-

tion does not fit petitioner, who is in

his middle thirties.

At the time of the arrest, petition-

er Bordeaux never got out of the vehicle

until ordered to do so, never got on the

boat, and he was totally cooperative at

the time.

The government relied primarily on

the theory of constructive possession to

establish the charge, because it is clear

that petitioner Bordeaux was not in actual

possession of the boat, nor had he been

aboard the boat.

This Court has consistently reversed

the convictions of individuals who were

mere passengers in vehicles in which nar-

cotics were found. United States v.

Gardner, 475 F.2d 1273 (9th Cir., 1973);

United States v. Lacefield, 468 F.2d 170

(Sth Cir., 1972); United States v. Thomas,

453 F.2d 141 (9th Cir., 1971); Bettis v.

United States, 408 F.2d 563 (9th Cir.,

; Doherty v. United States, 318 F.2d

719 (9th Cir., 1963); Gonzales v. United

States, 301 F.2d 31 (9th Cir., 1962);

Arnellanes v. United States, 302 F.2d 603

(9th Cir., 1962).

17

In the present case, petitioner

Bordeaux was not even in the same vehicle

(the boat) in which the contraband was

located. Further, there is no way he

could have seen into the boat while re-

maining in the Chevrolet Blazer.

As pointed out in Evans v. United

States, 257 F.2d 121, 126 (9th Cir., I558),

speculation, like suspicion, is not proof

and may not be inferred from mere associ-

ations. Evans v. United States, supra;

o05 Way Jong v. United States, 245 F.2d

(9th Cir., 1957).

Mere presence in the area where

narcotics is discovered or mere associa-

tion with persons controlling the loca-

tion of drugs or property is insufficient

to support a finding of possession.

United States v. Martin, 483 F.2d 974.

Considering the tremendous number

of similar cases involving suspects

arrested within close proximity to con-

traband, it would be of national impor-

tance for this Court to enunciate the

principles of "dominion and control"

and sufficiency of evidence necessary to

convict under said circumstances.

18

DO NOT PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CONCLUSION

For the foregoing reasons, peti-

% tioner Jerry James Bordeaux respectful-

ly prays that a writ of certiorari issue

to review the decision below.

Dated: L NITED STATES OF AMERICA,

Plaintiff-A ppe llee,

oa ve L No. 75-2291

Jerry JAMES BorDEAUX, MEMORANDUM

Defendant-Appellant.

” 520 West Ash, Suite 300 | November 12, 1975}

San Diego, C: 92101

-) Appeal from the United States District Court

for the Southern District of California

’

\

(714) 238-1355

Attorneys for

Petitioner

Before: HUFSTEDLER and WRIGHT, Circuit Judges,

and FERGUSON,* District Judge

The evidence before the district court was sufficient for its deter-

mination that customs officers had clear founded suspicion to stop

amd interrogate the defendant. The stop being lawful, the mari-

juana was in plain view and its seizure proper.

Affirmed.

*Honorable Warren J. Ferguson, United States District Judge for

the Central District of California, sitting by designation.

PERN AU-WALSH PRINTING CO., SAN FRANCISCO 11-20-75 400

APPENDIX A

LED

Jf

’ J

Mp 1976

’ Ie ,

“s Rr me y

ie 1 UNITED STATES COURT OF APPEALS

2 | FOR THE NINTH CIRCUIT

s |

ty

4 | UNITED STATES OF AMERICA, .

|

5 Plaintiff-Appellee, No. 75-2291

|

)

'

J . | :

|

7 | JERRY JAMES BORDEAUX, . ORDER

. Defendant-Appellant. .

i — -

ae |

|

10 |Before: 'UI'STEDLER and WRIGHT, Circuit Judges, and

| RGUSON,* District Judge

® ae

12 | The panel as constituted in the above case has

|

13 | voted to deny the petition for rehearing and to reject

|

14 ; the suggestion for a rehearing en banc.

15 | The full court has been advised of the suggestion

}

16 | for en banc rehearing, and no judge of the court has

7 : 17 requested a vote on the suggestion for rehearing en banc.

18 Fed. R. App. P. 75(b).

19 | The petition for rehearing is denied and the

20 [suggestion for a rehearing en banc is rejected.

21 |

7 22 | Dated: January 7, 1976.

23

2

25

26

* .

= |

29

80

$1 sam aes

.

Honorable Warren J. Ferguson, United States District Judga,

Central District of California, sitting by designation.

‘