# Petition — Bordeaux v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1976
- **Citation:** 425 U.S. 950

## Text

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.

‘

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1676%3A1. Public record. Not legal advice.