# Petition — Whitaker v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1976
- **Citation:** 429 U.S. 818

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2256%3A1. Public record. Not legal advice.