Petition — Whitaker v. United States

Supromo Court, U. & 4

KILLED |

| APR 14 1976

JR, CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1975

No. 75-1486

WAYNE RONALD WHITAKER, a/k/a WITTAKER,

Defendant-Petitioner,

versus

UNITED STATES OF AMERICA,

Plaintiff-Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

Preston Henrichson

222 West Cano

Edinburg, Texas 78539

Attorney for Appellant

Richard C. Smith

Of Counsel

SCOFIELOS GUALITY PRINTERS. P O BOX 63096. N O LA 70163 604°822.1611

SUBJECT INDEX

Page

BUNOGS TRGOEE ccc ccccccccccccccccccccccccccccncceces i

Constitutional Authorities ©0000... 6.66 c cence i

Statutory AuUthHOrities .....cccscccccccccvccccccccers i

Bee GE GED ccc iccccccccccccccsccccccccccescoces iii

Caption and Statement of Petition .............. 1-2

Statement of Jurisdiction 20.0... 666 c cece eee ee eees 2

Questions for Review ......... 6c ccc eee eeeeeeeees 3-5

Constitutional and Statutory Provisions ........ 5-8

Statement of the Case .......... cc ccecceceeeenees 8-9

Statement Of Facts .....cccccsccccssvcssccsevees 9-11

Argument and Authorities ...............6505. 11-21

GOP SIOND GE OT UEED co cccccccccctccctesccecscscces 22

PAGE boc cccicnccesccdcpcccccccccesccccecccceccs la

Memorandum and Order of the District Court...... la

Judgment and Commitment Order .............. lla

Order Affirming, U.S. Court of Appeals, 5th

GIES one edceseccsenccssnccececeeseeseesnencesos 13a

POCRSIOM GOR TOGMORTE cccccccccccccccccccccceces l4a

Order Denying Petition for Rehearing .......... 27a

Motion to Stay Issuance of Mandate ............ 28a

Order Denying Motion to Stay Issuance of

REED .coddonche60neenandbactabnent canes <deki 30a

ii

TABLE OF CASES (Continued)

Page

CONSTITUTIONAL PROVISIONS

Fourth Amendment, U.S. Const. .............055. 5,21

Fifth Amendment, U.S. Const. .............005. 5-6,21

Ninth Amendment, U.S. Const. ............00055. 6,21

Fourteenth Amendment, U.S. Const. ............ 6,21

STATUTORY PROVISIONS

ee ei od ee ee ieee eh eee 6-7

BP . Wace cccccccsccndcosececccsececcnceséccs 7

aa hi a ak ea a 7-8

TABLE OF CASES

Carroll v. United States, 267 US 132, 154(1955)...... 14

Morales v. United States, 378 F 2d 187 (5th Cir.

DE boinc dates o45ddsedbbbsekddcestedeaadisotines 15

Plazola v. United States, 291 F 2d 56, 61 (9th

be. dockinehsosvueede sdedesdeedabeenssendeus 14

United States v. Almeida-Sanchez, 413 U.S.

DE <ci:54 ne eeeteedndedndewdeldedéeeds viewed 15

United States v. Bowman, 502 F 2d 1215 (5th

it Se. +s itretnghesieds sknencedebaneenee ter 14,15

United States v. Brignone-Ponce, 95 S. Ct.

EE: ot vena sade cieatabaaenet ens 15

United States v. Bursey, 491 F 2d 531 (5th Cir.

Ps cbcdnsbeks dekekshehaeeds deesuavceusienseiuns 17

United States v. Hill, 430 F 2d 129 (Sth Cir.

SEE ee ee TUTTIVITELIL TTT ree 15

iii

TABLE OF CASES (Continued)

Page

United States v. Kandlis, 432 F 2d 132 (9th Cir.

GPE ccvccccccccccccesensdesenecusneesoesesaceees 14

United States v. Lara, 517 F 2d 209 (5th Cir.

ADTD) .cccccscccccvcvcccccvecccccccccseeeeececens 16

United States v. Maggard, 451 F 2d 502 (5th

GOP. GEVED cc vccccececceccdecccccesceesceseesesoce 14

United States v. Mejias, 452 F 2d 1190 (9th Cir.

SE: heb s0cdeccdesecscendennessnsecesbeueseeenees 14

United States v. Meola and Wittaker, Crim.

No. 75-B-148 (S.D. Tex. filed July 24, 1975)... 12,20

United States v. Nieto, 510 F 2d 1118 (5th Cir.

BPE cccccccccecdecccscnscvenceeeséeccbecevesccuces 20

United States v. Ortiz, 95 S. Ct. 2585 (1975). ...... 15

United States v. Poindexter, 429 F 2d 510 (Sth

« Ss PRT oT ee eee 14

United States v. Reagor, 441 F 2d 252 (5th Cir.

UE: 600 eccin.cninsdsdduddee eee 15

United States v. Selby, 407 F 2d 241 (9th Cir

SEED cccvccececesvecesecccescestageeedeeees ten 14,21

United States v. Speed, 497 F 2d 546 (Sth Cir

SPE cvcevecuccncvesescesecncesséechouwebenseueues 13

United States v. Terry, 446 F 2d 579 (9th Cir.

SPE <n000000060kdundbds Cacnceenescesedeess bu0eas 14

PEP mn

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975

No.

WAYNE RONALD WHITAKER, a/k/a WITTAKER,

Defendant-Petitioner,

versus

UNITED STATES OF AMERICA,

Plaintiff-Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

I.

Wayne Ronald Whitaker aka Wittaker petitions the

Supreme Court of the United States for a Writ of Cer-

tiorari reviewing the Judgment of conviction and

commitment and the Memorandum and Order of the

United States District Court for the Southern District

of Texas, Brownsville Division, in this cause, then

numbered 75-B-148, copies of which Judgment and

Memorandum are appended hereto, and petitions this

Honorable Court for review of the Judgment affirm-

ing the District Court order by the United States Court

of Appeals for the Fifth Circuit, in this cause, then

numbered 75-3536, a copy of which Judgment is

appended hereto, and further petitions for review of

the order denying the Petition for Rehearing by the

said United States Court of Appeals, a copy of which

order is also appended hereto.

II.

STATEMENT OF JURISDICTION

The District Court Memorandum and Order con-

taining the trial court's findings was dated and en-

tered on July 24, 1975. The Defendant was adjudged

guilty as charged, was convicted and was sentenced in

open court on August 22, 1975, as evidenced by written

Judgment and Order of Commitment which was dated

and entered on August 27, 1975. Defendant's notice of

appeal was filed on the same date. The Judgment of the

United States Court of Appeals for the Fifth Circuit af-

firmed the judgment of the trial court in a per curiam

opinion dated and entered on February 10, 1976. The

Defendant filed a Petition for Rehearing on February

24, 1976 and the same was denied by the said Court of

Appeals by order dated and entered on March 15, 1976.

The jurisdiction of this Court for discretionary review

of these decisions is conferred by the United States

Constitution, Article 3, Section 2 and by statute (28

USC 1254(1) ).

3

ITI.

QUESTIONS FOR REVIEW

The following questions are presented for review by

this Honorable Court:

A. IS THE FEDERAL GOVERNMENT ENTITLED

TO EXTEND ITS BORDER CUSTOMS-LIKE

SEARCH POWER 60 MILES INTO THE UNITED

STATES MERELY BY KEEPING SURVEILLANCE

OVER A VEHICLE WHICH HAS BEEN CLEARED

AND RELEASED AFTER A THOROUGH BORDER

SEARCH?

B. DOES A CAREFUL, THOROUGH AND

NEGATIVE BORDER SEARCH (WHICH SEARCH

SATISFIES THE SEARCHING CUSTOMS OF-

FICERS THAT NO CONTRABAND IS CONTAINED

IN AN ENTERING VEHICLE), EFFECTIVELY IN-

VALIDATE AND NEGATE PRIOR INFORMATION

THAT CONTRABAND OBTAINED IN MEXICO IS

CONTAINED IN THE VEHICLE?

C. WHEN PRIOR INFORMATION ALLEGES

THAT CONTRABAND WAS OBTAINED IN

ACAPULCO, MEXICO, FOR SMUGGLING INTO THE

UNITED STATES IN SECRET COMPARTMENTS IN

A CERTAIN VEHICLE, AND WHEN SUCH INFOR-

MATION IS NEGATED BY THOROUGH AND

NEGATIVE CUSTOMS SEARCH OF THE VEHICLE.

IS SUCH INFORMATION REVIVED FOR PROB-

ABLE CAUSE SEARCH PURPOSES BY CON-

TINUOUS VEHICLE SURVEILLANCE AND THE

4

FOLLOWING OBSERVATIONS: (1) THE VEHICLE

DRIVER PICKS UP AN APPARENT PEDESTRIAN

ACQUAINTANCE WITH KNAPSACK IN A

RESTAURANT PARKING LOT SIX OR SEVEN

BLOCKS NEAR THE BRIDGE, WHO “COULD HAVE

BEEN COMING FROM ANYWHERE”; AND (2) THE

DRIVER TRAVELS 60 MILES WEST AND NORTH

FROM THE BRIDGE POINT OF ENTRY IN SAID

VEHICLE WITH FLORIDA LICENSE PLATES BY

WELL TRAVELLED U.S. HIGHWAY 281 EXCEPT

FOR A ONE TO TWO MINUTE STOP DOWN A SIDE

ROAD FOR AN UNKNOWN PURPOSE BUT

WITHOUT ANY UNUSUAL ACTIVITY HAVING

BEEN OBSERVED DURING THE STOP?

D. DO SUCH OBSERVATIONS OUTLINED IN C.

ABOVE BY THEMSELVES CONSTITUTE PROB-

ABLE CAUSE (OR EVEN REASONABLE SUSPI-

CION) TO STOP THE VEHICLE AND TO DISASSEM-

BLE AND SEARCH THE INTERIOR CONSTRUC-

TION OF THE CAMPER WITHOUT A SEARCH

WARRANT DESPITE THE THOROUGH AND

NEGATIVE SEARCH OF THE ENTIRE CAMPER AT

THE BRIDGE AND DESPITE THE ADMISSION BY

THE SEARCHING OFFICER THAT HE DID NOT

BELIEVE THAT THE VEHICLE CONTAINED CON-

TRABAND WHEN THE VEHICLE LEFT THE

BRIDGE, AND DESPITE THE OFFICER'S ADMIS-

SION THAT THE CONTRABAND IN QUESTION

WAS FOUND IN A LOCATION WHERE IT COULD

NOT HAVE BEEN PLACED DURING THE SUR-

VEILLANCE BUT WHICH MUST HAVE BEEN

PRESENT BEFORE THE VEHICLE CROSSED THE

BRIDGE?

—

5

E. ARE THE CIRCUMSTANCES OF THIS CASE

CONSTITUTIONALLY SUFFICIENT TO SUPPORT

A FEDERAL STOP, DISASSEMBLY AND SEARCH

OF THE INTERIOR CONSTRUCTION OF A VEHI-

CLE OF AU. S. CITIZEN WITHOUT A WARRANT ON

A MAJOR ARTERIAL HIGHWAY SOME 60 MILES

INTO THE UNITED STATES FROM POINT OF EN-

TRY OF THE VEHICLE, WHEN THE VEHICLE HAS

BEEN UNDER CONSTANT SURVEILLANCE SINCE

ENTRY AND AFTER THE VEHICLE WAS

THOROUGHLY SEARCHED AND CLEARED IN A

BORDER CUSTOMS SEARCH AT THE BRIDGE?

IV.

The Constitutional provisions and statute which

this Petition involves are set out verbatim as follows:

A. “The right of the people to be secure in

their persons, houses, papers, and effects,

against unreasonable searches and

seizures, shall not be violated, and no

Warrants shall issue, but upon probable

cause, supported by Oath or affirme ‘ion,

and particularly describing the place to be

searched, and the persons or things to be

seized” (U.S. Const. Amend. 4).

B. “No person shall be held to answer for a

capital, or otherwise infamous crime, un-

less on a presentment or indictment of a

Grand Jury, except in cases arising in the

land or naval forces, or in the Militia,

when in actual service in time of War or

public danger; nor shall any person be

subject for the same offense to be twice put

in jeopardy of life or limb; nor shall be

compelled in any criminal case to be a

witness against himself, nor be deprived

of life, liberty, or property, without due

process of law; nor shall private property

be taken for public use, without just

compensation” (U.S. Const. Amend. 5).

“The enumeration in the Constitution, of

certain rights, shall not be construed to

deny or disparage others retained by the

people” (U.S. Const. Amend. 9).

“Section 1. All persons born or naturaliz-

ed in the United States, and subject to the

jurisdiction thereof, are citizens of the

United States and of the State wherein

they reside. No State shall make or en-

force any law which shall abridge the

privileges or immunities of citizens of the

United States; nor shall any State deprive

any person of life, liberty, or property,

without due process of law; nor deny to

any person within its jurisdiction the

equal protection of the laws” (U.S. Const.,

Amend. 14).

“Search of vehicles and persons. Any of

the officers or persons authorized to board

or search vessels may stop, search, and

examine, as well without as within their

respective districts, any vehicle, beast, or

7

person, on which or whom he or they shall

suspect there is merchandise which is

subject to duty, or shall have been intro-

duced into the United States in any

manner contrary to law, whether by the

person in possession or charge, or by, in,

or upon such vehicle or beast, or other-

wise, and to search any trunk or envelope,

wherever found, in which he may have a

reasonable cause to suspect there is

merchandise which was imported con-

trary to law; and if any such officer or

other person so authorized shall find any

merchandise on or about any such vehi-

cle, beast, or person, or in any such trunk

or envelope, which he shall have reason-

able cause to believe is subject to duty, or

to have been unlawfully introduced into

the United States, whether by the person

in possession or charge, or by, in, or upon

such vehicle, beast, or otherwise, he shall

seize and secure the same for trial” (R.S.

§ 3061; Act July 18, 1866, c. 201, § 3, 14 Stat.

178; 19 USC 482).

“Any officer of the customs may at any

time to go on board of any vessel or vehi-

cle at any place in the United States...

and search the vessel or vehicle and every

part thereof and any person, trunk, pack-

age or cargo on board ...’’ (19 USC 1581).

“(A)ll persons coming into the United

States from foreign countries shall be

liable to detention and search by authoriz-

ed officers or agents of the government

...' (June 17, 1930, c, 497, Title IV, Part V,

Sec. 582, 46 Stat. 748; 19 USC 1582).

Vv.

STATEMENT OF THE CASE

The Petitioner, Wayne Ronald Whitaker, aka Wit-

taker was convicted by the Federal District Court of

the Southern District of Texas, sitting at Brownsville,

of counts I, II, and III of an indictment numbered CR75-

B-148, filed in the Federal District Court on the 23rd

day of April, 1975. The indictment alleged: (1) that

Defendant did knowingly and intentionally import

into the United States from Mexico approximately 126

pounds of Marijuana, contrary to Section 952a, Title

21, United States Code; and (2) that Defendant con-

spired with one John M. Meola and other unknown per-

sons to unlawfully possess with the intent to dis-

tribute a quantity of Marijuana in violation of Sec-

tions 846 and 841(a)(1), Title 21, United States Code:

and (3) that Defendant did knowingly and inten-

tionally possess with the intent to distribute approxi-

mately 126 pounds of Marijuana contrary to Section

841(a)(1), Title 21, United States Code. Prior to trial,

Defendant filed a timely motion to suppress the

evidence. On June 10, 1975, the Court entertained

Defendant's Motion to Suppress and a hearing thereon

was held. On June 16, 1975, Appellant waived a jury

trial and requested the Court to rule on the case based

upon the evidence already presented. On July 24, 1975,

the Court entered its findings in a written Memoran-

dum and Order which denied the Defendant's Motion to

Suppress and which found the Defendant guilty of all

three counts of the indictment. In open court on Au-

gust 22, 1975, the Defendant was adjudged guilty of all

counts and was sentenced and committed to the

custody of the Attorney General for imprisonment for

a period of four years and a special parole term of two

(2) years on each count, all to be served concurrently.

The written order of Judgment and commitment was

dated and entered on August 27, 1975. Notice of Appeal

was filed on the same date. The judgment of the Trial

Court was affirmed and a rehearing was denied by the

United States Court of Appeals for the Fifth Circuit.

This petition for review follows.

VI.

STATEMENT OF FACTS

On February 25, 1975, U. S. Customs Agents in

Brownsville, Texas, received information that a 1971

Black Chevy pickup truck with a camper on the back,

with false compartments in the gas tank and with a

license number including IGK would be driven by a

man named Whitaker across the International Border

from Matamoros, Mexico, with an unknown amountof

Marijuana aboard (R. 12-16, 17-19, 39). When on

February 27, 1975, at about 8:00 P.M., a vehicle match-

ing this description approached the pointof entry into

the United States at Brownsville, Texas, the Customs

Agent, acting upon the information previously re-

ceived, directed it to the secondary search area, (R. 19-

22). An extensive secondary search was conducted by

Officer Gomez with assistance from several other

10

customs officers (R. 20-22, 24-32, 33-37). After a

thorough search they satisfied themselves that there

was no contraband in the truck, and they determined

that no grounds for arrest or seizure existed (R. 28-30,

34-36, 47). At approximately the same time, Customs

Officer Kitchen was informed that the bridge search

revealed nothing and the agents were prepared to

release the vehicle from the border after searching the

cab, camper, engine compartment, undercarriage, gas

tanks, and searching for secret compartments (R. 29-

30, 36-37, 66). U. S. Agent Kitchen positioned himself

to trail the truck and Officers Gomez and Fehlis re-

leased it to travel to the interior of the Country (R. 29,

36-37, 47-48).

From the bridge the vehicle was followed 5-6 blocks

to a restaurant where an individual later identified as

Co-defendant John M. Meola joined the Appellant and

proceeded to a gas station, to an eating establishment

and out of Brownsville on U.S. Highway 281 in a

westerly direction (R. 48-49, 53, 69, 71).

After one hour of travel, the vehicle turned down a

dirt road, off of the main highway 281, and returned 3-4

minutes later (R. 49-52). The vehicle was stopped on

the dirt road for one to two minutes, (R. 52), and was

under constant surveillance from helicopter and from

6 tailing vehicles with the assistance of binoculars (R.

52-53, 67-68). No activity within or without the pickup

was noted, no lights were seen, and the vehicle was not

stopped long enough to load the contraband which was

later found in secret compartments (R. 52-53, 64-66, 68-

69). After its return to Highway 281 the vehicle con-

tinued its westward journey (R. 52). Constant sur-

11

veillance was maintained by a cadre of six customs

vehicles and a helicopter until the vehicle reached a

point approximately three miles south of Edinburg,

Texas, and approximately 60 miles from the point of

entry into the United States (R. 40-41, 67-69, 73). At

approximately 10:15 P.M., ten to twelve officers

stopped the vehicle at gunpoint and without consent

or warrant conducted a second extensive search dur-

ing which the interior construction of the camper was

disassembled. The disassembly of the camper resulted

in a seizure of approximately 126 pounds of Mari-

juana, (R. 40-45, 63-65). The Marijuana found could not

have been secreted during the surveillance because it

required camper disassembly and therefore it had

been present in the camper before the vehicle crossed

the bridge into the United States (R. 63-66, 68-69). It is

this second search of which the Petitioner complains.

VII.

ARGUMENT AND AUTHORITIES

The Defendant's motion to suppress should have

been granted by the trial court because the search in

question was unreasonable. The second search oc-

curred without the benefit of a warrant, probable

cause, consent, or any exception to the fourth amend-

ment protection the Constitution of the United States

provides against such searches. The extent of the

search and the disassembly of the camper also was

unreasonable. All customs agents concerned were of

the opinion that the vehicle did not contain contraband

at the time it was released into the interior. (R. 22, 29-

30, 47-48), and it would have been physically impossi-

12

ble for the defendant and his companion to have

secreted the contraband in the interior construction of

the camper during the surveillance (R. 68-69),

Nevertheless, the customs agents suddenly stopped

the defendant's vehicle at gun point, some sixty miles

from the point of entry into the United States and some

two hours and fifteen minutes after entry, and

conducted what they considered to be an unlimited

search of the defendant's vehicle (R. 40-45, 63-65, 67-69,

73).

In an artful attempt to construct a legal basis for this

intrusion, the trial court adopted three alternative

theories of justification, each of which are inconsis-

tent with the facts of the case as evidenced by the

record. In a Memorandum Opinion, the trial court

found alternatively:

A. That the search was a border search;

B. That there was probable cause to search

the vehicle based upon the agents’ obser-

vations during surveillance after the vehicle

left the bridge and entered Texas; and

C. That there was probably cause to search

based upon some fictional corroboration of the

informant's information about a Mexican con-

nection (U.S. vs. John M. Meola and Wayne

Ronald Whittaker, Crim. No. 75-B-148

(S.U.Tex., filed Jul. 24, 1975) ).

We will address each of these alternative findings in

the following entitled subparagraphs: A. Not a Border

Search; B. No Probable Cause for Search Based upon

Texas Connection; C. No Probable Cause for Search

Based upon Mexican Connection.

13

A. Nota Border Search. In denying the Defendant's

Motion to Suppress, the Court erred in finding that the

search in question was a border search.

As stated by Judge Morgan in United States vs.

Speed, 497 F 2d 546 (5th Cir. 1973) rev'd on other

grounds, the test for determining a border search in-

volves two questions; “. ..we must now ask if asearch

occurred either at the border or the functional

equivalent thereof. It not, then it is not a border

search.” There is no evidence in the record nor even an

indication that the government attempted to show the

search in question occurred at the functional

equivalent of the border or at the border itself.

In fact, all of the facts bearing on this question in-

dicate the contrary. The second search occurred some

55-60 miles from the Brownsville International Bridge

and point of entry on U.S. 281 a four lane major arterial

highway which begins in Brownsville, Texas and

proceeds in a generally westerly direction until it

reaches a point some several miles south of Pharr,

Texas, where it curves North, and proceeds through

Pharr, to Edinburg, through Edinburg North to San

Antonio, Austin, Dallas and points North (R. 40-41, 43,

67-69, 73). Appellant would invite the Court to consult

any official Highway map for orientation and if

necessary take judicial notice of the relevant confor-

mation of the subject highway. Not only was the sec-

ond search greatly removed in time and distance from

the border as set out hereinabove, but significantly,

the search occurred after the vehicle and driver

cleared the border search at the bridge customs sta-

tion and the driver was released to the interior of the

14

Country as a non-violator of U.S. Customs law (R. 19-

20, 24, 28, 32, 33-37, 45-48). A line of cases from the 9th

Circuit Court of Appeals indicate that when an initial

border search is thorough and when it satisfies the in-

specting officers that no contraband is aboard the

vehicle, and after the citizen is released from the bor-

der and after the citizen actually leaves the bridge

area, he is no longer subject to a subsequent customs

border search (U.S. v. Kandlis, 432 F 2d 132 (9th Cir.

1970); U.S. v. Selby, 407 F 2d 241 (9th Cir. 1969); See

Plazola v. U.S., 291 F 2d 56, 61 (9th Cir. 1961) ). As to

those travelers lawfully within the country who are

entitled to use the public highways, the customs of-

ficers need probable cause to search (Carroll v. U.S..,

267 US 132, 154(1955) ). In each of the cases in which we

have been able to find a second search upheld asa bor-

der search, it would appear that the first search was

not sufficiently thorough to satisfy the inspecting of-

ficers (U.S. v. Maggard, 451 F 2d 502 (5th Cir. 1971) ),or

that the person or vehicle had not left or had returned

to the customs station or to the close proximity of the

bridge or border (U.S. v. Mejias, 452 F 2d 1190 (9th Cir.

1971); U.S. v. Terry, 446 F 2d 579 (9th Cir. 1971): U.S. v.

Poindexter, 429 F 2d 510 (5th Cir. 1970) ). In our case,

since the second search was removed from the border

both in time and in distance, since the officers were

Satisfied with the first search, since it was thorough,

and since the vehicle was released to the interior, we

conclude that the second search did not occur at the

border or at the functional equivalent thereof.

In finding the search was a border search, the trial

court relies heavily on the United States v. Bowman,

502 F 2d 1215 (CA 5 1974), and cites same no less than

15

five times in its memorandum and order. As this Court

well knows, Bowman was decided without the benefit

of United States vs. Almeida-Sanchez, 413 U.S. 266

(1973). In Bowman, the Court of Appeals relied on

several other pre-Almeida-Sanchez cases which sup-

port the theory that a search would be held con-

stitutional if it was within general proximity to the

border and the agents making the search had a

reasonable suspicion that a customs violation had oc-

curred (U.S. vs. Bowman, Supra, at p. 615 citing

Morales vs. United States, 378 F 2d 187 (CA 5 1967),

United States vs. Hill, 430 F 2d 129 (CA 5 1970), and

United States vs. Reagor, 441 F 2d 252 (CA5 1971) ), ali

of which are based on the reasonable suspicion test. In

considering the effect of the Almeida-Sanchez deci-

sion on Bowman, Morales, Hill and Reagor, it is clear

that such reasonable suspicion is not a substitution

for provable cause, except at the border itself.

Subsequent to the Almeida-Sanchez decision, this

Honorable Court has reenforced this requirement of

probable cause in the geographical areas neighboring

the border (United States vs. Brignone-Ponce, 95S. Ct.

2574, 2585 (1975) ). In Brignone-Ponce, this Court held

that reasonable suspicion no longer satisfies the re-

quirements for a warrantless search in the fringe

areas near the International Border. The distinction is

a fine one in that when an officer does have reasonable

suspicion, (i.e. that vehicles contain aliens, illegally

in the Country), he has a right to stop and question but

that any further search or detention must be based

upon probable cause. In United States vs. Ortiz, 95

S. Ct. 2585 (1975), this Court further clarified its posi-

tion as follows: “. .. in Almeida-Sanchez we rejected

16

the government's contention that the nation’s strong

interest in controlling immigration and the practical

difficulties of policing the Mexican border combined

to justify dispensing with both warrant and probable

cause for vehicle searches by roving patrols near the

border.” In a recently reported case, United States vs.

Lara, 517F 2d 209(CA5 1975), the Fifth Circuit Court of

Appeals held that reasonable suspicion no longer

Satisfies the requirements for a valid warrantless

search by roving border patrol agents even in an area

near the International Border. The Circuit Court did

hold that stopping of the vehicle accompanied by brief

interrogation of the occupants based upon a

reasonable suspicion was not violative of the Fourth

Amendment constitutional right when an officer's

observations lead him to reasonably suspect that a

particular vehicle's driver may have committed a

customs or immigration violation. In the instant case,

no such suspicion is present (R. 48), and no interroga-

tion was conducted (R. 43-45, 63-65). Rather, a search

which was unreasonably thorough was conducted im-

mediately, which search included dismantling the

camper (id).

Thus, upon review of the authorities, it appears

clear that at the time Defendant was searched, the

government was required to have probable cause, con-

sent or a valid warrant in order for the search not to

have been violative of Defendant's Fourth Amend-

ment constitutional rights.

B. No Probable Cause for Second Search Based on

Texas Connection. When the Defendant was searched

at the U.S. Border, information received by the govern-

17

ment concerned a purchase of contraband in Mexico

which was to be transported into the U.S. at Browns-

ville, Texas, (R. 12). The prior information was suc-

cinctly stated by the arresting officer in the record at

page 39:

“They had received information that a black

1971 Chevrolet pickup with a camper driven

by Ron Whitaker would be going into Mexico,

re-entering the United States at Brownsville,

and would have contraband hidden aboard the

truck (emphasis added).”

There was no information regarding a second person,

passenger or hitchhiker. There was no information

regarding any act to be accomplished in the U.S. (R.

15).

Once the government satisfied itself that no contra-

band had been brought into the U.S. by Defendant in

his vehicle, he was released to travel in the U.S. (R. 22,

29-30). This does nothing to corroborate the confiden-

tial information but in fact destroys its reliability. In

order to revive the information (if possible) the

government should have received further information

regarding a Mexican transaction. Instead the govern-

ment points to two dubious occurrences which the

Court holds were occasions when the Defendant“...

could have picked up Marijuana.” (R. 49-50). The Court

fails to relegate the proper significance to these two

occasions referred to above. The trial court observed

that both occasions argueably could indicate a Texas

connection or transaction. Analogously, in United

States vs. Bursey, 491 F 2d 531 (CA 5 1974), the second

18

information the government received (in that case by

tip/in this case by observation) indicated that the

suspects were seeking narcotics in Texas, not Mexico.

In order for the Court’s ruling to correctly reflect the

facts, it must be said that Officer Kitchen, at the time of

the search, believed that Defendant had loaded Mari-

juana on a dirt road in South Texas. If this was the

case, then it did not tend to corroborate the informant’s

tip that Whitaker had already loaded the Marijuana in

Mexico. It necessarily follows that since there was no

longer any reasonable suspicion of a Mexican trans-

action (R. 22, 29-30, R. 48) and no prior information

regarding a Texas connection, evidence is not present

to support probable cause.

The execution and extent of this search was con-

stitutionally unreasonable since it was not justified

by the officer's observations of the appellant and of his

vehicle after the border crossing, search and

clearance. In questioning the agent in charge of the

second search, the trial Judge addressed this problem

at page 68-69 in the record:

The Court: All right, but I mean you had

him under surveillance all the time, and you

all never saw anybody unscrewing a false

compartment under the bed and sticking mari-

juana in there or anything like that?

A NoSir, we wouldn't be able to inside the

cab.

The Court: So the chances are that when

that thing crossed that bridge it had that stuff

in it?

A Yes sir.

19

The Court: Because it was no way for them

to put it in there without you having noticed,

you or somebody working with you, is that

right?

A Iwould believe so, sir.

Even the customs patrol agent in charge of the sur-

veiliance did not believe that the vehicle contained

contraband when it left the bridge (R. 47). He stated, “I

thought it was possible that they were going to pick up

the contraband” (R. 47-48). This possibility had not

been suggested by the information given to the officer

(R. 38-39). He had received no information about a Tex-

as connection or transfer. The officer, therefore, must

have independently imagined this possibility. In fact,

he observed no loading of contraband at any time

before he stopped and searched the vehicle (R. 48, 49,

52, 53-54, 68-69).

C. No Probable Cause Based Upon Mexican Con-

nection. There was no effort on the government’s part

to indicate that these two stops made by Defendant

Whitaker caused any renewal of suspicion of a

customs violation after the complete border search at

Brownsville. When we consider the opportunity of the

government agents to satisfy themselves at the bridge

regarding the information about a customs violation,

it is undisputable that no probable cause existed to

search the Defendant a second time for a customs

violation.

Nevertheless, the trial court fallaciously attempts

to corroborate the information about a connection in

Mexico by “two occasions during which the Defendant

Whittaker could have picked up marijuana”, both of

20

which were in Texas (U.S. v. Meola and Whittaker,

Supra at 8). On both of these occasions, the Appellant

also could have (and was) doing something other than

“picking up marihuana”.

Since there was no confidential information regard-

ing a Texas connection and no observations support-

ing the information of a Mexican connection, there

could not have been probable cause for the second

search.

Nevertheless, in affirming the decision of the Trial

Court, the Court of Appeals cited United States v.

Nieto, (5th Cir. 1975) 510 F 2d 1118. The instant Case in-

volves substantially different facts and questions of

law from those in Nieto.

In Nieto, the information was received by the federal

drug agent after the vehicle left the border and while it

was proceeding to the interior of the United States. In

Nieto, only one search occurred and it was upheld un-

der the theory of corroboration of prior information.

In summary, the Nieto case involved prior informa-

tion, corroboration, a stop, search and seizure while

this case includes prior information, corroboration at

the bridge, negative search at the border crossing,

release of vehicle and occupant, surveillance, obser-

vations, a stop, search, disassembly and seizure. By

reason of these critical differences in the facts, the

Nieto case is not dispositive of this case.

The primary question before the Court in our case is

whether or not these observations during surveillance

21

constituted probable cause to stop and search the vehi-

cle on the second occasion, and if so, whether or not the

extent of the search was reasonable under the circum-

stances. As discussed extensively herein, we believe

that the activities of the Defendant after entry into the

United States were “susceptible to a variety of credi-

ble interpretations not necessarily compatible with

nefarious activities” (U.S. v. Selby, supra). Since the

surveillance failed to uncovez any probable cause to

search the Defendant in the second instance, the sec-

ond search was unreasonable both in its occurrence

and in its unlimited extent. To allow U.S. customs of-

ficers such license is to defeat a citizen's right to

privacy as well as the intent and spirit of the fourth,

fifth, ninth and fourteenth amendments to the con-

stitution. To deny this petition would effectively

license the United Staies customs officers to follow,

keep under surveillance and repeatedly search

without restriction any citizen entering our country.

WHEREFORE, PREMISES CONSIDERED,

Petitioner respectfully requests that this petition be

granted, that a Writ of Certiorari issue from this

Honorable Court, and that upon review, the judgment

of the District Court in this cause be reversed. or alter-

natively, to conform the said judgment in accordance

with the opinion of this Honorable Court.

Respectfully submitted,

Preston Henrichson

222 West Cano

Edinburg, Texas 78539

(512) 383-7453

Attorney for Appellant

EEIIEIEEEESOES'S9~—--—~—

APPENDICES

nn

la

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

BROWNSVILLE DIVISION

UNITED STATES OF AMERICA

versus Cr. No. 75-B-148

JOHN M. MEOLA and

WAYNE RONALD WITTAKER

Filed: Jul. 24, 1975

Honorable Edward B. McDonough, Jr., United

States Attorney, of Houston, Texas, and

Charles F. Sandoval, Assistant United States

Attorney, of Brownsville, Texas; for the

Government.

Roberto J. Yzaguirre, of McAllen, Texas; for

the Defendant John M. Meola.

Henrichson & Henrichson (Preston Henrich-

son), of Edinburg, Texas; for the Defendant

Wayne Ronald Wittaker.

MEMORANDUM AND ORDER

The Defendants, John M. Meola and Wayne Ronald

Wittaker, stand charged by Grand Jury Indictment in

Count One of importing approximately 126 pounds of

marihuana in violation of 21 U.S.C.A. §952(a); Count

Two charges the Defendants with conspiring to

possess, with intent to distribute, a quantity of mari-

huana in violation of 21 U.S.C.A. §846 and §841(a)(1);

and Count Three charges the Defendants with

possessing approximately 126 pounds of marihuana,

with intent to distribute, in violation of 21 U.S.C.A.

§841(a)(1). To these charges the Defendants have en-

tered a plea of not guilty and have filed a Motion to

Suppress.

On June 10, 1975, a hearing was held on the Defen-

dants’ Motions. At that hearing the Government called

the Customs Officers Charles Lutz, Raymond Perez,

Daniel Farrias, Balwin C. Fehlis, Jesus Gomez.

Melvin Kitchen, and Drug Enforcement Administra-

tion Agent Victor C. Mason to the stand. The Defen-

dants did not call any witnesses and rested at the close

of the Government's evidence.

From the testimony taken into evidence at the hear-

ing on the Motions to Suppress it appears that

Customs Officers stationed in Miami, Florida, had re-

ceived information from a previously reliable source

that a person by the name of Whitaker would attempt

to drive a 1971 black Chevrolet truck bearing a speci-

fied Florida license plate into the United States from

the Republic of Mexico via Brownsville. The suspect

would be carrying a load of marihuana which would be

hidden in secret compartments in the truck. Customs

Officers in Miami, Florida, passed this information on

to Customs Officers stationed at Brownsville, Texas.

On February 27, 1975, at approximately 8:00 p.m. the

above described black Chevrolet pickup truck driven

3a

by the Defendar Wayne Ronald Wittaker arrived at

the B&M Bridge in Brownsville, Texas, from

Matamoros, Mexico. Because Customs had a lookout

on this truck it was referred to secondary where Of-

ficers Farrias, Fehlis, and Gomez searched the cab and

camper sections of the truck without finding any

marihuana. The vehicle was then released, but not

before Customs had arranged for Officer Kitchen to

tail-out the vehicle as it left the bridge.

From the bridge the vehicle went to Denny's

Restaurant which is nearby and there picked up a per-

son later identified as the Defendant John M. Meola,

who had been seen walking from the B & M Bridge

with a knapsack on his shoulder. The vehicle and its

two occupants then proceeded out of Brownsville via

U.S. Highway 281, which is not the principal route

from Brownsville to Edinburg. The car was kept un-

der constant surveillance by a cadre of Customs

vehicles and an airplane, with the exception of one

time when the vehicle turned off the highway onto a

dirt road and was out of sight for a minute or two. The

vehicle returned to U.S. Highway 281 and continued

heading north out of the Valley. When it became ap-

parent to the officers that the vehicle was in fact leav-

ing the Valley they stopped the vehicle to search itata

point that was about three miles south of Edinburg,

Texas, at approximately 10:30 p.m. Concealed in

secret compartments Officers Fritz and Kitchen found

47 bags of marihuana weighing approximately 126

pounds.

By way of their Motions the Defendants claim that

this warrantless search was conducted without prob-

qa

able cause and not pursuant to a border search in

violation of the Fourth Amendment of the United

States Constitution.

Mere proximity to the border does not alone qualify

such a search as a border search. United States v.

Storm, 480 F.2d 701 (CA 5 1973). At the same time,

however, the fact that a search was conducted away

from the border does not alone disqualify it as a bor-

der search. In United States v. Bowman, 502 F.2d 1215

(CA 5 1974), the Fifth Circuit examined the “extended

border search” theory and set out the following stand-

ards for determining whether or not a search quali-

fies as an “extended border search”:

“Mere proximity to the border does not alone

justify such a search. To hold that a search

may be reasonably justified as an ‘extended

border search’ requires a finding that the

agent who conducted the search had ; eason-

able cause at the time of the search to suspecta

violation of the customs laws. And, atthe time

of the search, the suspect must have had some

reasonably direct connection with the border,

considering such factors as the cause for the

initiation of the search, the distance from the

border and original point of entry, and the time

elapsed since entry.”

In Bowman, supra, the Fifth Circuit found that a

search conducted approximately two hours and fif-

teen minutes after the Defendants had crossed the bor-

der and at a point that was within three miles from the

city limits of Laredo, Texas, where the Defendants had

Ps =)

5a

crossed the bridge —..d while the suspicion of the Mex-

ican transaction was still fresh and uncontradicted at

the time of the search was justified as a “border

search” which could be made on reasonable suspicion

alone.

The Bowman Court took pains to distinguish

another recent Fifth Circuit case, United States v.

Bursey, 491 F.2d 531 (CA 5 1974). In that case the Fifth

Circuit refused to characterize as a border search a

search which occurred four days after the suspects

had entered the United States and at a location 80 miles

north of the border with only intermittent sur-

veillance. In Bursey the Fifth Circuit held that under

these circumstances any nexus with the border was

clearly severed and thus ensuing search could be had

only upon a showing of probable cause.

Although Bowman and Bursey do not by themselves

clearly define the outer limits of the “extended border

search” theory, the two cases do provide some guide-

lines in determining whether or not a search qualifies

under the “extended border search” theory: the time

elapsed bo! ween the entry into the United States and

the search, the distance between the port of entry and

the location of the search, intervening factors such as

a megative search, which mitigate against the suspi-

cion of a Mexican transaction or contact, and the con-

tinuity of surveillance. The search at bar occurred

approximately two anda half hours after the suspects’

entry into the United States. There was continual sur-

veillance of the car from the time it entered into the

United States until it was ultimately stopped and

searched at about 10:30 p.m., with the exception of the

6a

vehicle’s short journey off U.S. Highway 281 up a dirt

road where Customs Officers temporarily lost sight of

the vehicle. While it is true that there was an interven-

ing search when the suspect's vehicle entered into the

United States that proved negative, Customs Officers

observed that right after the vehicle left the bridge it

picked up a passenger on foot with a knapsack who

had apparently crossed the bridge concurrently with

the vehicle. Additionally, the Officers did lose sight of

the vehicle for a short time when it departed U.S.

Highway 281 to drive up the dirt road. The search did

occur quite a distance, about 60 miles, from the port of

entry of the suspect's vehicle but in the mind of this

Court this does not disqualify the search as a border

search, particularly in light of the fact that Customs

had never relinquished interest in this vehicle as is

indicated by the large numbers of vehicles and of-

ficers who followed the vehicle after it entered the

United States. Finally, the officers were in possession

of information from Florida, which was in every detail

corroborated by their own personal observations, that

was sufficient to create a suspicion of a Mexican con-

nection. This suspicion was not dissipated by the

negative search at the bridge because after that search

there were at least two opportunities for contraband to

have entered the car: the mysterious passenger with

the knapsack and the unexplained turnoff of U.S.

Highway 281 onto a dirt road. On the authority of Unit-

ed States v. Bowman, supra, this Court holds that this

was an extended border search which could be per-

formed on reasonable suspicion alone. This Court fur-

ther finds and holds that the circumstances as set out

above were sufficient to make the officers reasonably

suspicious of a customs violation. The search was in

7a

all things legal and the Motions to Suppress are

hereby denied.

In the alternative this Court finds that even if this

search does not qualify as a border search the search

was nevertheless legal as it was attended by probable

cause. The evidence before this Court is that federal of-

ficers, acting on information supplied by a previously

reliable confidential informant, establishing a roving

surveillance on the vehicle identified by the informer.

During this surveillance the officers observed at least

two occasions during which the Defendant Wittaker

cculd have picked up marihuana. When it became ob-

vious that the Defendant was in fact leaving the Valley

via an indirect route the officers stopped him to search

his vehicle. While we now know that the marihuana

was concealed in the vehicle when it crossed the

bridge, this was not known at the time of the search

and the searching officers had every right to believe

that the contraband was taken on board after the vehi-

cle left the bridge. Thus, the negative search at the

bridge does not cut the nexus between the Defendant

and the informer’s information, which was

corroborated in every particular by the officers.

Because the search was attended by probable cause

and the exigent circumstance of searching a moving

vehicle out on the open highway, the Motions to Sup-

press must be denied.

The Defendant Wittaker has also filed a Motion to

Disclose the Identity of the Informer. The Defendant

has wholly failed to show that the identity of the in-

former is necessary to this Defendant's defense or that

the informer’s presence is required in order to give the

8a

Defendant a fair trial. The Defendant Wittaker’s Mo-

tion to Disclose the Identity of the Informer is hereby

denied. Roviaro v. United States, 353 U.S. 53 (1956).

On June 16, 1975, the Defendant Wittaker appeared

with counsel and in open court announced that he

intended to waive a jury and submit the case to tne

Court on the evidence received by the Court in the Mo-

tion to Suppress hearing. On a previous date the co-

Defendant John M. Meola appeared with counsel and

in open court announced that he had made application

to the Probation Office for the pre-trial diversion

program.

Count One charges the Defendant Wayne Ronald

Wittaker with importing approximately 126 pounds of

marihuana in violation of 21 U.S.C.A. §952(a); Count

Two charges the Defendant Wittaker with conspiring

to possess, with intent to distribute, a quantity of

marihuana in violation of 21 U.S.C.A. §846 and

§841(a)(1); and Count Three charges the Defendant

with possessing approximately 126 pounds of mari-

huana, with intent to distribute, in violation of 21

U.S.C.A. §841(a)(1). There is no question that the mari-

huana was concealed in the truck when the Defendant

Wittaker drove it into the United States. Hence, the

only question with regard to the Defendant's guilt in

Counts One and Three is whether or not he knew that

the marihuana was in the truck. Taking into account

the highly sophisticated manner in which this mari-

huana was concealed, the mysterious appearance of

the Defendant Meola on the scene right after the Defen-

dant Wittaker crossed the truck into the United States,

the use of a secondary highway rather than the

oe

9a

primary thoroughfare that runs through the area, and

the completely unexplained deviation from U.S.

Highway 281 up the dirt road, this Court can infer

beyond a reasonable doubt that the Defendant Wayne

Ronald Wittaker had knowingly involved himself ina

scheme which required him to drive a truck which he

knew to be loaded with marihuana into the country.

Thus, this Court is persuaded beyond a reasonable

doubt that the Defendant Wayne Ronald Wittaker did

knowingly import approximately 126 pounds of mari-

huana as charged in Count One of the Indictment. This

Court further finds beyond a reasonable doubt that the

Defendant Wittaker did knowingly possess approxi-

mately 126 pounds of marihuana, an amount sufficient

for this Court to presume commerciul intent and

hereby finds him guilty as charged in Count Three of

the Indictment.

Count Two charges the Defendant Wittaker with

conspiring to possess, with intent to distribute, a

quantity of marihuana ir violation of 21 U.S.C.A. §846

and §841(a)(1). This Court is persuaded beyond a

reasonable doubt that the Defendant Wittaker con-

spired to possess a commercial quantity of mari-

huana with the Defendant John M. Meola and acted in

furtherance of said agreement by driving the pickup

truck with the concealed marihuana into the United

States from the Republic of Mexico and later by

transporting the marihuana on U.S. Highway 281

along with the co-Defendant John M. Meola. Therefore,

this Court hereby finds the Defendant Wayne Ronald

Wittaker guilty as charged in Count Two of the Indict-

ment.

10a

The Defendant Wittaker will present himself to the

United States Probation Office in Brownsville, Texas,

on Friday, August 1, 1975, and the U. S. Probation Of-

ficer is ordered to make a pre-sentence report on the

Defendant. Sentencing is set for the 22nd day of

August, 1975, at 9:30 a.m.

The Clerk will send copies of this Memorandum and

Order to the Defendants, their counsel, the United

States Attorney, and the United States Probation Of-

ficer.

DONE at Brownsville, Texas, this 24th day of July,

1975.

/s/ REYNALDO G. GARZA

Reynaldo G. Garza

UNITED STATES DISTRICT

JUDGF

(SEAL)

TRUE COPY I CERTIFY

ATTEST:

V. BAILEY THOMAS, Clerk

/s/ JUAN Y. BABOU

Deputy Clerk

lla

In the United States District Court for the

Southern District of Texas, Brownsville Division

UNITED STATES OF AMERICA

versus No. 75-B-148

WAYNE RONALD WITTAKER

JUDGMENT AND COMMITMENT ORDER

In the presence of the attorney for the government,

the defendant appeared in person on this date, August

22, 1975, with counsel Richard C. Smith pleading not

guilty.

There being a finding of guilty.

Defendant has been convicted as charged of the

offenses of importing approximately 126 lbs. of

marihuana, in violation of Section 952(a), Title 21,

United States Code, as charged in Count 1 of the Indict-

ment; conspiring to possess, with intent to distribute,

a quantity of marihuana, in violation of Sections 846

and 841(a)(1), Title 21, United States Code, as charged

in Count 2 of the Indictment; and possessing ap-

proximately 126 lbs. of marihuana with intent to dis-

tribute, in violation of Section 841(a)(1), Title 21, Unit-

ed States Code, as charged in Count 3 of the Indict-

ment.

The court asked whether defendant had anything to

say why judgment should not be pronounced. Because

no sufficient cause to the contrary was shown, or

12a

appeared to the court, the court adjudged the defendant

guilty as charged and convicted and ordered that: The

defendant is hereby committed to the custody of the

Attorney General or this authorized representative

for imprisonment for a period of FOUR (4) YEARS and

a special parole term of two (2) YEARS on each of

Counts 1, 2, and 3; said sentence to run concurrently.

/s/ REYNALDO G. GARZA

Reynaldo G. Garza

United States District Judge

Date: August 27, 1975

13a

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 75-3536

Summary Calendar*

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WAYNE RONALD WITTAKER,

Defendant-Appellant.

Appeal from the United States District Court for the

Southern District of Texas

(February 10, 1976)

Before WISDOM, THORNBERRY and SIMPSON, Cir-

cuit Judges.

PER CURIAM: AFFIRMED. See Local Rule 21.! See

also United States v. Nieto, 5 Cir. 1975, 510 F.2d 1118.

* Rule 18, 5 Cir., Isbell Enterprises, Inc. v. Citizens Casualty

Company of New York, et al., 5 Cir., 1970, 431 F.2d 409, Part I.

1 See N.L.R.B. v. Amalgamated Clothing Workers of America, 5

Cir., 1970, 430 F.2d 966.

14a

In the

United States Court of Appeals

for the Fifth Circuit

No. 75-3536

Wayne Ronald Whitaker,

Defendant-Appellant,

and Petitioner,

versus

United States of America,

Plaintiff-Appellee.

Appeal from the United States District Court for the

Southern District of Texas, Brownsville Division

PETITION FOR REHEARING

Petitioner-Appellant urges a rehearing of the in-

stant case based upon the following grounds:

I.

In affirming the decision of the Trial Court in a per

curiam opinion, this Honorable Court cited United

States v. Nieto, (5th Cir. 1975) 510 F2d 1118. The in-

stant case involves substantially different facts and

questions of law from those in Nieto.

In our case, two searches occurred after information

incriminating the Appellant was received at the U. S.

15a

Custom’s Office in Brownsville, Texas. The first

search was a thorough customs-like search at the

Brownsville International Bridge, and it satisfied the

customs agents that no contraband was secreted in the

vehicle, despite the prior information to the contrary

(R. 37). The second search in our case occurred follow-

ing certain observations by customs agents during

continuous surveillance conducted after the release of

the vehicle from the virtually unlimited search

authority of the border crossing station. The primary

question before the Court in our case is whether or not

these observations during surveillance constituted

probable cause to stop and search the vehicle on the

second occasion, and if so, whether or not the extent of

the search was reasonable under the circumstances.

In Nieto, the information was received by the federal

drug agent after the vehicle left the border and while it

was proceeding to the interior of the United States. In

Nieto, only one search occurred and it was upheld un-

der the theory of corroboration of prior information.

In our case the prior information was succinctly

stated by the arresting officer in the record at page 39:

“They had received information that a black

1971 Chevrolet pickup with a camper driven

by Ron Whitaker would be going into Mexico,

re-entering the United States at Brownsville,

and would have contraband hidden aboard the

truck (emphasis added).”

This information led to the extensive but unsuccessful

border search and that portion of the information

16a

which related to the contraband was negated thereby.

Further, the later observations of the surveilling of-

ficers did nothing to corroborate the prior information

concerning contraband in secret compartments of the

vehicle. The arresting officer justified entirely the

second search on suspicions aroused by the activities

of the vehicle and its occupants after entry into the

United States (R.50). The surveilling officers ob-

served the vehicle driver pick up an apparent

pedestrian acquaintance in a restaurant parking lot

six or seven blocks from the bridge (R.71), which

pedestrian “could have been coming from anywhere”’

(R.53). They also observed the driver with passenger

travel 60 miles west and north from the bridge in the

camper pickup with Florida license plates by well

traveled U.S. Highway 281, except for a one to two

minute stop on aside road for an unknown purpose but

without observing any unusual activity (R.52-53).

These activities were “susceptible to a variety of

credible interpretations not necessarily compatible

with nefarious activities” (U.S. vs. Selby, 407 F2d 241,

(9th Cir. 1969) ). Certainly, after his release from the

bridge, the observed activities of the Appellant did

nothing to corroborate the prior inform: tion about the

alleged Acapulco, Mexico connection. Additionally,

the prior information lends nothing of logical value to

the officer’s later consideration of the observed ac-

tivities of the appellant.

It follows that the second search turned up no con-

traband that could have been concealed during the sur-

veillance. The second search was fruitless until the of-

ficers disassembled the interior construction of the

camper. The execution and extent of this search was

constitutionally unreasonable since it was not justi-

17a

fied by the officer’s observations of the appellant and

of his vehicle after the border crossing, search and

clearance. In questioning the agent in charge of the

second search, the trial Judge addressed this problem

at page 68-69 in the record:

The Court: All right, but I mean you had

him under surveillance all the time, and

you all never saw anybody unscrewing a

false compartment under the bed and

sticking marijuana in there or anything

like that?

A. No Sir, we wouldn't be able to inside the

cab.

The Court: So the chances are that when

that thing crossed that bridge it had that

stuff in it?

A. Yes sir.

The Court: Because it was no way for

them to put it in there without you having

noticed, you or somebody working with

you, is that right?

A. I would believe so, sir. |

Even the customs patrol agent in charge of the sur-

veillance did not believe that the vehicle contained

contraband when it left the bridge (R.47). He stated, “I

thought it was possible that they were going to pick up

the contraband” (R.47-48). This possibility had not

been suggested by the information given to the officer

(R.38-39). He had received no information about a Tex-

18a

as connection or transfer. The officer, therefore, must

have independently imagined this possibility. In fact,

he observed no loading of contraband at any time

before he stopped and searched the vehicle (R.48, 49,

52, 53-54, 68-69).

In summary, the Nieto case involved prior informa-

tion, corroboration, a stop, search and seizure while

this case includes prior information, corroboration at

the bridge, negative search at the border crossing,

release of vehicle and occupant, surveillance, obser-

vations, a stop, search, disassembly and seizure. By

reason of these critical differences in the facts, the

Nieto case is not dispositive of this case.

Therefore, the uncontradicted testimony of the

witnesses and the facts of which the trial Court took

judicial notice place into issue the following un-

answered questions of law in this appeal:

A. IS THE FEDERAL GOVERNMENT EN-

TITLED TO EXTEND ITS BORDER

CUSTOMS-LIKE SEARCH POWER 60 MILES

INTO THE UNITED STATES MERELY BY

KEEPING SURVEILLANCE OVER A VEHI-

CLE WHICH HAS BEEN CLEARED AND

RELEASED AFTER A THOROUGH BORDER

SEARCH? We think not (see U.S. v. Ortiz, 95

S. Ct. 162 (1975); U.S. v. Almeida-Sanchez, 413

U.S. 266 (1973); Carroll v. U.S., 267 U.S. 132, 154

(1925); U.S. v. Speed, 497 F 2d 546 (5th Cir. 1974)

rev'd on other grounds; U.S. v. Kandlis, 432

F 2d 132 (9th Cir. 1970); U.S. v. Selby, 407 F 2d

241 (9th Cir. 1969) ).

19a

B. DOES A CAREFUL, THOROUGH AND

NEGATIVE BORDER SEARCH (WHICH

SEARCH SATISFIES THE SEARCHING

CUSTOMS OFFICERS THAT NO CONTRA-

BAND IS CONTAINED IN AN ENTERING

VEHICLE), EFFECTIVELY INVALIDATE

AND NEGATE PRIOR INFORMATIO?

THAT CONTRABAND OBTAINED IN MEX-

ICO IS CONTAINED IN THE VEHICLE? We

believe it does; otherwise, the government

would be able to follow, keep under sur-

veillance and repeatedly search a citizen

without restriction if probable cause to search

is ever once established. This would violate

the citizen’s right to privacy as well as his

right to be free of unreasonable search and

seizure.

C. WHEN PRIOR INFORMATION

ALLEGES THAT CONTRABAND WAS OB-

TAINED IN ACAPULCO, MEXICO, FOR

SMUGGLING INTO THE UNITED STATES

IN SECRET COMPARTMENTS IN A CER-

TAIN VEHICLE (R. 12-13, 39), AND WHEN

SUCH INFORMATION IS NEGATED BY

THOROUGH AND NEGATIVE CUSTOMS

SEARCH OF THE VEHICLE, HOW IS SUCH

INFORMATION CORROBORATED BY CON-

TINUOUS VEHICLE SURVEILLANCE

WHICH OBSERVES THE FOLLOWING: (1)

THE VEHICLE DRIVER PICKS UP AN AP-

PARENT PEDESTRIAN ACQUAINTANCE

WITH KNAPSACK IN A RESTAURANT

PARKING LOT SIX OR SEVEN BLOCKS

NEAR THE BRIDGE (R. 71), WHO “COULD

20a

HAVE BEEN COMING FROM ANYWHERE”

(R. 53); AND (2) THE DRIVER TRAVELS 60

MILES WEST AND NORTH FROM THE

BRIDGE POINT OF ENTRY IN SAID VEHI-

CLE WITH FLORIDA LICENSE PLATES BY

WELL TRAVELLED U.S. HIGHWAY 281 EX-

CEPT FOR A ONE TO TWO MINUTE STOP

DOWN A SIDE ROAD FOR AN UNKNOWN

PURPOSE BUT WITHOUT ANY UNUSUAL

ACTIVITY HAVING BEEN OBSERVED

DURING THE STOP (R. 52-53)? We believe

that this constitutes no relevant corroboration

of the prior information and the prior informa-

tion lends no logical support or cause for the

second search.

D. DO SUCH OBSERVATIONS OUTLINED

IN D. ABOVE BY THEMSELVES CON-

STITUTE PROBABLE CAUSE (OR EVEN

REASONABLE SUSPICION) TO STOP THE

VEHICLE AND TO DISASSEMBLE AND

SEARCH THE INTERIOR CONSTRUCTION

OF THE CAMPER WITHOUT A WARRANT

DESPITE THE THOROUGH AND

NEGATIVE SEARCH OF THE ENTIRE

CAMPER AT THE BRIDGE AND DESPITE

THE ADMISSION BY THE SEARCHING OF-

FICER THAT HE DID NOT BELIEVE THAT

THE VEHICLE CONTAINED CONTRA-

BAND WHEN THE VEHICLE LEFT THE

BRIDGE (R. 47), AND DESPITE THE OF-

FICER’S ADMISSION THAT THE CON-

TRABAND IN QUESTION WAS FOUNDINA

LOCATION WHERE IT COULD NOT HAVE

2la

BEEN PLACED DURING THE SUR-

VEILLANCE BUT WHICH MUST HAVE

BEEN PRESENT BEFORE THE VEHICLE

CROSSED THE BRIDGE (R. 63-66, 68-69)? Itis

our position and belief that the observed cir-

cumstances do not constitute probable cause

to stop and search the vehicle on the second oc-

currence (see U.S. v. Kandlis, 432 F 2d 132 (9th

Cir. 1970); U.S. v. Selby, 407 F 2d 241 (9th Cir.

1969) ). Further, the extent of the second

search was unreasonable based on the con-

tinuous observations of the officers and the

previous extensive bridge search (Fourth

Amendment, U.S. Constitution).

E. IF THE OBSERVATIONS SET OUT IN D.

ABOVE CONSTITUTE REASONABLE

SUSPICION, IS REASONABLE SUSPICION

CONSTITUTIONALLY SUFFICIENT TO

SUPPORT A FEDERAL STOP, DIS-

ASSEMBLY AND SEARCH OF THE IN-

TERIOR CONSTRUCTION OF A VEHICLE

OF A U.S. CITIZEN WITHOUT A WARRANT

ON A MAJOR ARTERIAL HIGHWAY SOME

60 MILES INTO THE UNITED STATES

FROM POINT OF ENTRY OF THE VEHICLE,

WHEN THE VEHICLE HAS BEEN UNDER

CONSTANT SURVEILLANCE SINCE EN-

TRY AND AFTER THE VEHICLE WAS

THOROUGHLY SEARCHED AND

CLEARED IN A BORDER CUSTOMS

SEARCH AT THE BRIDGE? We believe that

reasonable suspicion is insufficient cause to

stop and search the vehicle (U.S. v. Ortiz,

Supra; U.S. v. Almeida-Sanchez, Supra).

22a

These issues may not have been adequately addressed

in the briefs of both parties to this appeal but they cry

out for definitive answer by this Honorable Court.

Appellant respectfully requests that this petition for

rehearing be granted in all or any of these issues and

that such issues be resubmitted to this Court on briefs

and upon oral argument.

II.

Shortly before submission date, government

appellate counsel addressed a letter commentary on

the merits of Appellant’s appeal to the panel con-

sidering such appeal. The Government letter offered

this Court an informal and shorthand summary of the

“facts of this case’, the “question” that “arises’’, the

contentions of the Appellant, a comment on the trial

court’s opinion, a reference to some “inquiry” which

is apparently outside of the record, some speculation

about this undefined “inquiry” and the position of the

government in the appeal. A copy of the government

letter is attached hereto for reference as Exhibit A. The

undersigned counsel received a copy of such letter on

February 9, 1976, and the trial court decision was af-

firmed per curiam by the panel on February 10, 1976.

For this reason, I was not afforded an opportunity to

reply to the government counsel’s letter summary

before the submission date. Needless to say, I

vociferously disagree with much of the content of the

letter. I would therefore request that this Honorable

Court grant this petition for rehearing and give the

Appellant a fair and adequate opportunity for reply to

this most recent and unexpected pleading by the

government.

23a

Ill.

The undisputed testimony in the trial record and in

the facts of which the trial Judge took judicial notice

have been grossly confused, misquoted and mis-

applied in the written opinion of the trial court, in the

government brief and in the letter commentary by

government counsel which was addressed to this

Honorable Court immediately before the submission

of this case. The net effect of such confusion and mis-

application of the relevant facts to the applicable law

was apparently not effectively overcome in

Appellant’s brief, especially since we have had no op-

portunity to reply to the government’s letter. As set

out in paragraph I above, the fact that U.S. v. Nieto was

cited by the Court indicates further that the facts in

this case have been obscured or at least not effectively

presented to this Court. For these reasons, Appellant

requests that this Motion for Rehearing be granted in

order that counsel for the Appellant be afforded an op-

portunity to more effectively set out the relevant facts

and the applicable law. Further, in light of the widely

divurging statements of facts and interpretations of

the testimony, this Honorable Court should avail

itself of another opportunity to review the record and

make its own assessment of the relevant facts, in order

that justice be done.

Respectfully submitted,

Preston Henrichson

222 West Cano

Edinburg, Texas 78539

(512) 383-7453

Attorney for Appellant

24a

EXHIBIT A

United States Department of Justice

UNITED STATES ATTORNEY

Southern District of Texas

12000 Federal Building

and U.S. Court House

515 Rusk Avenue

Houston, Texas 77002

February 6, 1976

Honorable Edward W. Wadsworth

Clerk, U.S. Court of Appeals

For the Fifth Circuit

Room 102, 600 Camp Street

New Orleans, La. 70130

Re: No. 75-3536 — U.S.A. v. Wayne Ronald

Whittaker

Dear Sir:

We have been advised that this case has been placed

upon the summary calendar and will not be argued. In

view of this, we request that the letter which follows

(submitted in four copies, with copy to opposing

counsel), be submitted to the panel which decides the

case.

The facts of this case involved a “camper” truck

which was driven into the United States from Mexico

at Brownsville, Texas. The vehicle had been the sub-

ject of an informer’s tip and was searched at the

bridge, but no marihuana was found at the time. The

vehicle was placed under surveillance and was later

stopped and searched again, whereupon one hundred

twenty-six pounds of marihuana was discovered con-

cealed in various places in the vehicle. The question

thus arises as to the point in time at which the mari-

huana was placed in the vehicle, whether before the

vehicle entered the United States or after, possibly ata

time when the vehicle briefly eluded surveillance and

was driven up a dirt road off U.S. Highway 281.

The appeai presents two principal contentions, the

first going to the lawfulness of the search in which the

marihuana was found, and the second to the suffi-

ciency of the evidence. The question of the search may,

of course, be dispositive of the appeal. If the search is

upheld, the sufficiency question will be reached.

Judge Garza’s opinion, filed in connection with the

motion to suppress evidence, states that, “While

now know that the marihuana was concealed in the

vehicle when it crossed the bridge, this was not known

at the time of the search, and the searching officers had

every right to believe that the contraband was taken

on board after the vehicle left the bridge.” Inquiry in-

dicates that this conclusion, which may very well be

the case, perhaps owes something to statements made

after his arrest by the co-defendant Meola, who is nota

party to this appeal, which statements are

presumably not binding on the present appellant.

26a

It is the position of the government that the evidence

is sufficient to support the convictions on both counts,

whichever hypothesis as to when the marihuana was

placed on the vehicle is correct. If it was on board when

the vehicle crossed the Brownsville bridge, the

appellant imported it in the most literal sense. Ifit was

crossed by a Mexican supplier pursuant to an

arrangement previously made with the appellant, the

latter would be equally guilty as a conspirator as

charged, and as a principal to the importation by vir-

tue of 18 U.S.C. §2. Since the appellant would be guilty

as charged under either theory, it is submitted that the

evidence is sufficient.

Very truly yours,

EDWARD B. McDONOUGH, JR.

United States Attorney

JAMES R. GOUGH

Assistant United States Attorney

Chief, Appeals-Research Division

EBMcDJr:JRG:gt

ce: Mr. Preston Herrichsor

27a

In the United States Court of Appeals

for the Fifth Circuit

No. 75-3536

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WAYNE RONALD WITTAKER,

Defendant-Appellant.

Appeal from the United States District Court for the

Southern District of Texas

ON PETITION FOR REHEARING

(March 15, 1976)

Before WISDOM, THORNBERRY and SIMPSON, Cir-

cuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed

in the above entitled and numbered cause be and the

same is hereby DENIED.

28a

In the United States Court of Appeals

for the Fifth Circuit

No. 75-3536

WAYNE RONALD WHITAKER,

Defendant-Appellant,

versus

UNITED STATES OF AMERICA,

Plaintiff-Appellee.

Appeal from the United States District Court for the

Southern District of Texas, Brownsville Division

MOTION TO STAY ISSUANCE OF MANDATE

Appeliant-Defendant, WAYNE RONALD

WHITAKER, AKA, WITTAKER, files this Motion to

Stay Issuance of Mandate and in support thereof says

as follows:

I.

Appellant-Defendant has retained counsel to file an

Application for Writ of Certiorari to the Supreme

Court of the United States on the following substan-

tial questions:

A. What effect does a thorough, negative

bridge search have upon the prior information

leading to such search;

B. Can the government constitutionally ex-

tend the limits of the border customslike

29a

search into the interior of the United States by

continuous surveillance of a citizen and make

a constitutional second search; and

C. After the first search at the border, did the

observations during surveillance constitute

probable cause to stop and search the vehicle.

II.

Appeliant-Defendant has deposited $5,000.00 with

the District Clerk of the Southern District of Texas,

Brownsville Division, and has executed a $50,000.00

appearance bond. Appellant-Defendant has never

failed to make a required appearance in connection

with this case and it would unnecessarily cause

hardship to Defendant-Appellant and to his family.

WHEREFORE, PREMISES CONSIDERED,

Appellant-Defendant respectfully requests this

Honorable Court to stay the issuance of the mandate

until further order of the Court or until final disposi-

tion by the Supreme Court.

Respectfully submitted,

Preston Henrichson

222 West Cano

Edinburg, Texas 78539

(512) 383-7453

Preston Henrichson

Attorney for Appellant-Defendant

Wayne Ronald Whitaker, aka,

Wittaker

30a

In the United States Court of Appeals

for the Fifth Circuit

No. 75-3536

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WAYNE RONALD WITTAKER,

Defendant-Appellant.

Appeal from the United States District Court for the

Southern District of Texas

ORDER:

IT IS ORDERED that the motion of appellant filed in

the above styled and numbered cause for a stay of the

issuance of the mandate pending his petition for writ

of certiorari in this cause be, and the same is hereby

DENIED. See Fifth Circuit Local Rule 15, as amended

January 11, 1972.

/s/ HOMER THORNBERRY

UNITED STATES CIRCUIT

JUDGE