Petition — Canada v. United States
Supreme Court brief1976
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IN THE —
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM 1975
MICHAEL RODAK, JR., CLERK
i
no. £57 1533
MARGARET CANADA,
Petitioner,
Vv.
THE UNITED STATES OF AMERICA,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILFRED C. RICE
ATTORNEY FOR PETITIONER
2436 Guardian Building
Detroit, Michigan 48226
313/965-7962
ee
COURT INDEX PRESS, INC. — 807 Walnut Street, Cincinnati, Ohio 45202 — (513) 241-1450
TABLE OF CONTENTS
i oe ay, 1
0 EES. Spee POE ee 2
STATEMENT OF QUESTIONS INVOLVED ........ 2
* STATEMENT OF RELEVANT FACTS .............. 3
REASONS FOR GRANTING WRIT:
I. (a) Airport screening searches may not be em-
ployed as a source for information to initiate
criminal investigations.
(b) Mere silence does not evidence consent to
ee a eae ke bale b's 7
II. Information gleaned through secretly obtaining
phone numbers dialed by guests at a motel, with-
out their knowledge or consent or a court order,
may not be used to web a theory of probable
cause to arrest and search. .................... 12
III. Where the known owner of property sought to be
searched, without a search warrant, is physically
present, police may not search that person’s prop-
erty on consent given by a third party. .......... 15
IV. An accused suffers an impairment of her constitu-
tional right to be free on bail pending trial, and
be accorded a fair and impartial trial and sen-
tence where:
(a) The trial court refuses to allow friends of pe-
titioner to post her bond, unless an attorney
for third parties disregard his confidential
relationship with his clients and disclose the
source of the ba‘l money. .................. 19
(b) The trial court unnecessarily commented on
evidence favorably to the prosecution. ...... 21
Page
(c) The trial judge’s refusal to allow inquiry of a
juror disclosed to have had a prior and exist-
ing amicable relationship with one of the
principal witnesses for the prosecution
smudged the appearance of justice. .......... 22
(d) The trial judge’s refusal to consider petition-
er's plea for a more lenient sentence, because
she would not aid the government's efforts
to prosecute others, is a void sentence. ........ 23
SEE. deb Kens Skee din ennseesapeuctaneess 23
APPENDIX EXHIBITS
Transcript of Proceedings March 14, 1975 .......... la
Relevant Excerpts from Trial Transcript ............ 7a
Opinion of The Ninth Circuit Court of Appeals ...... 16a
Order Denying Motion For Rehearing etc. ........ 26a
Order Extending Time For Filing Petition For
REE -dbncdensGdddused’ seeeuavedodnesusesy 27a
Order Denying Motion To Withhold Final Deci-
pe pare me En rere Ea a orien ee ey 28a
Order Denying Motion For Stay of Mandate (4-12-76) . 29a
tl.
TABLE OF CASES
Page
Amos v. U.S., 255 U.S. 313, 41 S. Ct. 266 ............ . 16
Bated v. Koormer, S70 PSG GED... ccc cc ccccccccess 20
Ss Fe Se Be FBP Tere 10
Brady v. Maryland, 373 U.S. 83 ........... ..... vi ar
Burrows v. Superior Court (1974) 13 C ed 238 .......... 14
Cash v. Williams, 455 F.2d 1227 (6th Cir., 1972) ........ 17
Chambers v. Maroney, 399 U.S. 42 (1970) ............ 17
Chapman v. U.S., 365 U.S. 610 (1961) ................ 18
Chimel v. California, 395 U.S. 752 ..............ccceeee 17
Cunningham v. Heinze, 352 F.2d 1 .................. 18
Farris v. U.S., 24 F.2d 639, 640 (9th Cir., 1928) ...... 10, 16
Hernandez v. U.S., 353 F.2d 624, 627 (9th Cir., 1965) .... 17
Herter v. U.S., 27 F.2d 521 (9th Cir., 1928) .......... 16
Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed
ED cub hdty CC CREEK oad KUEEK COW 6660288 10
me PTT ree 14
Katz v. U.S., 389 U.S. 347, 361, 88 S. Ct. 507, 516, 19
a ers ss aan ane ceatee 11, 13
May v. State, 199 So. 2d G35 ..........cccccccccvsees 18
Mooney v. Holohan, 294 U.S. 103 ...............0000- 22
People v. Flowers, 179 N.W. 2d 56 (1970) .............. 18
People v. Jones, 254 N.E.2d 843 (1969) ................ 23
People v. McKunes, 51 C.A. 3d 487, 492 .............. 14
People v. Stage, 7 C.A. 3d 681 (1970) ................ 18
People v. Weinstein, 245 N.E. 2d 788 .................. 18
Piazzola v. Watkins, 442 F. 2d 284 (5th Cir., 1971) ...... 18
Schneckloth v. Bustamonte, 412 U.S. 218 (1973) ...... 10
Silverthorne Lumber Co. v. U.S., 251 U.S. 385, 391-392
SE Nis osduvcoealy cued bon kn Oe eee tan besa dete 9, 10
Page
ee Wi Ss C5... 3s wvacoussewdivnes 18
State v. Johnson, 85 N.M. 465, 513 P. 2d 399 .......... 18
Stoner v. California, 376 U.S. 490 (1964) ............ 13, 18
a O. SII, GED ae FID og occ vc cccccccuccccees 8
US. v. Allen, 349 F. Supp. 749 ...................... 8
U.S. v. Davis, 482 F.2d 893 (9th Cir., 1973) ....8, 9, 11, 12
U.S. v. Edwards, 498 F.2d 496 .................... 8, 10
U.S. v. Fernandez, 480 F.2d 726 ..................... 21
US. v. Gillin, 345 F.Supp. 1145 ..................... 20
U.S. v. Honeyman, 470 F.2d 473 .................... 20
US. v. Krell, 388 F. Supp. 1372 .................... 8
U.S. v. Kroll, 481 F.2d 884, 886 ................ 8, 12, 17
U.S. v. Leathers, 412 F.2d 169, 134 U.S. App. D.C. 38 .. 20
U.S. v. Meulender, 351 F. Supp. 1284 ................ 8
U.S. v. Moore, 483 F.2d 1361, 1363, 1364 (9th Cir.,
BI, alle ns So is ae cides als abe oouaae 8, 17
U.S. v. Newton, 510 F.2d 1149 ...................... 8, 12
U.S. v. Nunez, 483 F.2d 453 (9th Cir., 1973) .......... 20
Vale v. Louisiana, 399 U.S. 30 ...................... 17
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM 1975
NO.
MARGARET CANADA,
Petitioner,
v.
THE UNITED STATES OF AMERICA,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Petitioner prays that a Writ of Certiorari issue to review
the judgment of the United States Court of Appeals for the
Ninth Circuit entered in this cause on December 2°, 1975 and
Petition for Rehearing with suggestion of Appropriateness for
a Rehearing En Banc being denied February 23, 1976.
CITATIONS OF OPINIONS BELOW
The judgment and commitment of the District Court adjudg-
ing the Petitioner Guilty of Counts I and II of the indictment
and sentencing her to two concurrent terms of five (5) years
under Title 18, Section 4208(a) (2) U.S.C., and a fifteen (15)
year period of special parole June 16, 1975. Decision of the
Court of Appeals affirming the judgment of the trial court
2
December 29, 1975. Denial of a Petition for Rehearing with
suggestion of the appropriateness of a rehearing en banc Feb-
ruary 23, 1976. Denial of Motion to Withhold final decision
until two companion cases have been decided March 16, 1976.
JURISDICTION
The Order of the Court of Appeals was entered February
23, 1976 and the Final Order of said court was entered March
16, 1976. This Honorable Court granted an extension of time
to file Petition for Certiorari until April 23, 1976. The jurisdic-
tion of this court is invoked under Title 28, Section 1254(1)
U.S.C.
(b)
(c)
(d)
3
confidential relationship with his clients and
disclose the source of the bail money.
The trial court unnecessarily commented on the
evidence favorably to the prosecution.
The trial judge refused to allow inquiry of a
juror disclosed to have had a prior and existing
amicable relationship with one of the principal
witnesses for the prosecution.
The trial judge refused to consider defendant's
plea for a more lenient sentence, because she
would not aid the prosecution’s efforts to prose-
cute other persons.
STATEMENT OF QUESTIONS INVOLVED
(a) May airport screening searches be employed as
a source of information to initiate criminal in-
vestigation?
(b) May a consent to search be properly construed
from the mere silence of the person to whom the
search is directed?
Whether information gleaned through secretly obtain-
ing phone numbers dialed by guests at a motel, with-
out their knowledge or consent, may be used to web a
theory of probable cause to arrest and search.
Where the known owner of property sought to be
searched, without a warrant, is physically present, may
police search that person’s property on consent given
by a third party?
Does an accused suffer an impairment of her constitu-
tional right to be free on bail to be accorded a fair
and impartial trial and sentence? Where:
(a) The trial court refuses to allow her to post bail
unless an attorney for third persons disregard his
STATEMENT OF RELEVANT FACTS
This case originated at the Detroit Metropolitan Airport,
where Petitioner and a male companion approached the Amer-
ican Airlines Security Checkpoint for preflight screening.
One of the Security Officers, Theresa Thomas, had a prior
working arrangement with the Airport DEA Office, whereby
she would report to that office her observations of any persons
coming through her checkpoint carrying a large sum of cash.
For this information, she would be paid various denominational
amounts, depending on what an investigation revealed. In the
instant case, she received a reward of TWO HUNDRED
($200.00) DOLLARS. In another case, she had received $50.
On two other cases, she received nothing, because the inves-
tigations were not fruitful.
The information gleaned through searching travelers, at the
security checkpoint, once reported to the DEA Office, would
initiate an investigation of the particular traveler, to see if the
money being carried would venture into a criminal enterprise.
In the instant cause, the security officer took possession of
Petitioner’s suitcase at the end of the conveyor belt and advised
that the suitcase had to be opened because a portion of the
contents of the suitcase could not be read on the x-ray screen.
Petitioner's male companion, who had carried the briefcase
4
to that point, inquired why the suitcase had to be opened,
since there was nothing offensive in it. The security officer
insisted that the suitcase had to be opened.
Before another word was spoken, the security officer opened
the suitcase and observed a large bundle of cash in a paper bag,
with the figure $68,000.00 on the outer cover of the bag. She
fingered through the money to ascertain the denominations of
the bills and returned the suitcase to Petitioner.
As soon as petitioner and her companion proceeded to board
the aircraft, the security officer left her post and followed them
to the boarding gate to determine what name petitioner was
traveling under. All of this information was conveyed to the
DEA Office.
DEA Agent, Paul Markonni, immediately initiated an inves-
tigation by checking on the male companion who did not board
the aircraft and phoned to the San Diego DEA Office, the name
petitioner was traveling under, her description and the descrip-
tion of the suitcase she was carrying.
Once petitioner arrived in San Diego, that DEA Office had
agents dispatched to conduct surveillance of her and two other
persons that met her at the airport.
While conducting surveillance, the DEA Agents went to the
office of the motel where petitioner was staying as a guest, and
secretly obtained the name she registered under and the phone
numbers she had called. This information was phoned to the
Detroit DEA Office who advised San Diego DEA that the
phone numbers called by petitioner were listed to persons who
had prior drug related backgrounds.
During continued surveillance, it was determined that the
two people that met petitioner at the San Diego Airport had
travelled to Mexico the next morning while petitioner remained
at San Diego.
After petitioner's companions returned to the motel that
afternoon, all three loaded their personal effects and proceeded
toward Los Angeles.
The DEA Agents, assisted by the state police, overtook and
5
stopped the vehicle they were riding in and placed them all
under arrest.
The Agent in Charge asked the lessee of the vehicle for per-
mission to search and she said, “go ahead.” Thereupon, another
agent searched everybody’s luggage, including petitioner’s. The
subject matter of the instant indictment was found in peti-
. tioner’s suitcase. She gave no consent and the officers had no
warrant.
During pre-indictment proceedings, petitioner was ordered
held under a $150,000.00 bond, which was subsequently re-
duced, on motion, to $100,000.00. The Magistrate and District
Judge refused to allow the bond to be posted unless and until
the attorney for third persons, interested in petitioner's release,
would disclose the identity of his clients furnishing the money
for petitioner's bail. The attorney invoked the attorney-client
privilege and petitioner was denied release on bail.
A pre-trial motion to suppress the evidence seized was de-
nied, as well as several other motions for reduction of peti-
tioner’s bond and justification of the surety.
The two co-defendants stipulated to waive trial by jury and
allow the court to decide their guilt or innocence on the basis
of the testimony presented at the Evidentiary Hearing. The
trial judge found them guilty of the conspiracy count only, and
their appeals are presently pending before the Ninth Circuit
Court of Appeals.
Petitioner's case was tried to a jury, with the understanding
that motions directed to the admissibility of evidence would
be considered during the course of trial.
Voir Dire of jurors was conducted. All jurors denied know-
ing any of the proposed witnesses read off. However, during
the course of trial, it was disclosed that one of the jurors,
Vincent Del Tondo, was a friend of Sgt. Redding, a principal
witness for the government who was involved in the investiga-
tion of the case. After said disclosure, the government with-
drew Sgt. Redding as a witness; however, the trial judge
refused to allow any inquiry of the particular juror to deter-
mine if the relationship would affect his judgment in the case.
6
During cross examination of a principal government witness,
the trial judge interrupted defense counsel and commented
on a significant issue of evidence favorably to the government.
Motion for mistrial was denied.
Petitioner was convicted of both counts in the indictment.
At sentencing, the trial judge said that if he thought imposing
a harsher sentence of thirty (30) years on the petitioner would
force her to cooperate with the government, that would be his
sentence. However, he theorized that she was genuinely
fearful of her safety, but would not consider her for probation,
because she did not help the government.
Petitioner was sentenced to serve two concurrent terms of
five years under Title 18, Sction 4208(a) (2).
Petitioner was let to bail, for the first time, after sentenc-
ing, pending appeal.
The conviction of the trial court was affirmed by the Ninth
Circuit Court of Appeals December 29, 1975." Petition for
Rehearing with Suggestion of the Appropriateness of Rehearing
En Banc was denied February 23, 1976.7 Petition to Withhold
final decision until two companion appeals are decided was
denied March 16, 1976.4 This court granted extension tc file
petition for certiorari to April 23, 1976.4
1 Decision of the Ninth Circuit Court of Appeals may be found in the
appendix.
2 Order denying Motion for Rehearing may be found in the appendix.
3 Order denying Motion to Withhold Final decision may be found in
the appendix.
4 Order granting extension may be found in the appendix.
7
REASONS FOR GRANTING WRIT
L
(a) AIRPORT SCREENING SEARCHES MAY NOT BE
EMPLOYED AS A SOURCE FOR INFORMATION
TO INITIATE CRIMINAL INVESTIGATIONS.
(b) MERE SILENCE DOES NOT EVIDENCE CON-
SENT TO SEARCH.
A thorough research of autorities has fai'ed to uncover a
sing'e case decided by this court on the issue herein presented.
, We submit that the instant case presents as clear a fact picture
as will ever come before this Honorable Court on the purpose
and limitations of preflight screening searches. Moreover, the
instant case offers this court an opportunity to address itself
to the allowable extent of governmental intrusion into the
privacy of air passengers as a source of initiating criminal
investigations.
In the instant case, DEA Agents had a pre-arrangement
with an American Airlines Security Officer, one Theresa
Thomas, to report to their office any persons she observed
going through her checkpoint carrying a large amount of
cash. Once such a report was received, the passenger would
be surveilled by government agents to and at their destination,
to determine if criminal activity was in the making. If so, the
airport security officer would be paid a reward for the informa-
tion supplied. The amount of the reward would depend upon
the significance of the crime uncovered to the government
agents. If the information was not fruitful, no reward was
paid.
On one prior occasion, Thomas had received a $50.00 reward
for her information. On two other occasions, she had received
nothing, because the information was not fruitful. On the
instant case, she received a $200.00 reward.
In the instant case, petitioner, traveling from Detroit, Michi-
gan to San Diego, California via American Airlines, appeared
with a male companion at the security checkpoint. The male
8
was carrying a green suitcase, which he placed on the conveyor
belt. As he and petitioner waited, Thomas took possession of
the bag at the end of the conveyor belt and the following con-
versation ensued, at p. 214 of the trial transcript:
“Q. Now, what if anything did you say to the male that
was carrying this green suitcase?
A. Well, I took the bag to the end of the belt and put it
on the table and I told him I had to open it and
inspect it because I couldn’t read what was on the
x-ray.
And what did he say?
And he asked me why I had to do it, and that there
wasn't anything in it, and I said, well I have to be-
cause I couldn't tell, I couldn’t identify the object
in the bag.
What did he say to that?
He didn’t say anything.”
(Emphasis added )
> oO
> O
The government did not contend that this conversation
between the parties evidenced consent, nor did the trial court
so find. However, the Court of Appeals ruled that the afore-
stated conversation evidenced consent-in-fact, voluntarily
given. The court further found from said conversation that
the security officer asked for permission to search the suitcase:
that since neither petitioner nor her companion objected, the
security officer was justified in assuming that she had the con-
sent of both to search.
The decision of this panel of the Court of Appeals is contrary
to prior decisions of the Ninth Circuit, as well as the great
weight of authority. U.S. v. Davis, 483 F.2d 893 (9th Cir.,
1973); U.S. v. Moore, 483 F.2d 1361 (9th Cir., 1973); U.S.
v. Alabarado, 495 F.2d 799 (2nd Cir., 1974); U.S. v. Edwards,
498 F.2d 496, 501 (9th Cir., 1975); U.S: v. Newton, 510 F.2d
1149 (7th Cir., 1975); U.S. v.-Kroll, 481 F.2d 884 (8th Cir.,
9
1973); U.S. v. Allen, 351 F.Supp. 749; U.S. v. Meulender, 351
F.Supp. 1284; U.S. v. Krell, 388 F.Supp. 1372.
The instant case is factually indistinguishable from U.S. v.
Davis, supra.. In Davis, the appellant attempted to board a
plane from San Francisco to Los Angeles. As he approached
the boarding gate, a TWA employee told him a routine security
. check was necessary, reached for his briefcase, opened it, and
found a gun. Davis had a friend with him at the time. The
magistrate denied a motion to suppress the evidence finding
consent-in-fact from appellant’s late arrival and attempt to
board the airplane. The district court affirmed. The Ninth
Circuit Court of Appeals reversed and remanded.
The deciding panel, in the instant case, conceded that the
instant case stands or falls on the propriety of the initial air-
port search, citing Silverthorne Lumber Co. v. United States,
251 U.S. 385, 391-392 (1920) (See Option in Appendix at
p. 4). However, the court found that the foregoing excerpted
conversation evidenced consent-in-fact. Such a finding is
clearly erroneous. One would have to pervert the English
language beyond elasticity to even imagine that the quoted
conversation expresses a request for permission to search and
consent-in-fact given.
It is clear from said conversation that the security officer
expressed that the suitcase had to be opened, not may she
open it. This, coupled with the fact that she had actual
possession of the suitcase at the time, manifests her intention to
act on her authority and not consent. From the positiveness
in the manner in which Thomas expressed that the suitcase
had to be opened, petitioner and her companion could reason-
ably assume that objecting would make no difference. How-
ever, the law is clear that a passenger must be warned of his
right to avoid preflight screening searches by electing not to
board the aircraft. U.S. v. Davis, supra at 912 (9th Cir.):
“In sum, airport screening searches of the persons and
immediate possessions of potential passengers for weapons
and explosives are reasonable under the Fourth Amend-
%
10
ment provided each prospective boarder retains the right
to leave rather than submit to the search.”
(Emphasis added)
In reaching its conclusion, the deciding panel, in the instant
case, opined that petitioner and her companion had a duty
to object as a prerequisite to preventing an unreasonable
search of her suitcase. The court concluded that their failure
to do so was a manifestation of consent. This is clearly
erroneous.
The law is well settled that, rights of constitutional dimen-
sion can only be waived where the purported waiver is clear
and unequivocal, which, of course, requires more than mere
silence. Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82
L.Ed 461 (1938). Moreover, one does not waive a fourth
amendment right by exercising a fifth amendment right. Boyd
v. U.S., 116 U.S. 616 (1886); Silverthorne Lumber Co v. U.S., -
251 U.S. 385 (1920); Farris v. U.S., 24 F.2d 639 (9th Cir.).
However, in the instant case, an objection to the search of
the suitcase is clearly expressed when petitioner’s companion
demanded to k:ow why it had to be opened since there was
nothing offensive inside. The lower court record is wholly
silent as to whether there were signs posted to pre-warn
passengers of searches as required by law. U. S. v. Edwards,
498 F.2d 496, 501.
Although the deciding panel, in the instant case, alludes
to Davis, supra being the law of the 9th Circuit, (Opinion,
p. 5) the court opined, ‘the present case falls somewhere be-
tween the verbal consent in Bustamonte and the facts in
Davis. |Schneckloth v. Bustamonte, 412 U.S. 218 (1973)].
The court went on to say, “In Davis the appellant's briefcase
was taken from his hand, opened before he had a chance to
really do or think anything.” This is clearly not a valid dis-
tinction because in each case the searcher had actual physical
possession of the article searched. Secondly, the record in
neither case reflects the time lapse between the expression of
the necessity to search, and the-effecting of the search. Final-
11
ly, the court should not place itself in the position of deciding
how long it should take one to make up his mind. Some
people are prone to make decisions quicker than others.
The court’s suggestion that the instant case falls between
consent actually given and no consent is clearly misplaced.
There can be no in between; there is either consent or there
_ is not. In the instant case, there was clearly no consent.
EXPECTATION OF PRIVACY
Money is not per se evidence of a crime, contraband, ex-
plosives or offensive weapons. Money is deemed in our society
as one of our most precious possession, and certainly falls
within the ambits of those possessions protected by the Fourth
Amendment.
Katz v. U. S., 389 U.S. 347, 361, 88 S. Ct. 507, 516, 19 L.
Ed.2d 576 (1967) imposes “a twofold requirement, first that a
person has exhibited an actual (subjective) expectation of
privacy and, second, that the expectation be one that society
is prepared to recognize as reasonable.” (Harlan, J., con-
curring).
The first requirement is satisfied in that, here, petitioner
relied on the privacy of her suitcase to conceal the money
she was carrying. Davis at 905.
The second requirement is satisfied from our common know!l-
edge of what society universally thinks about money. This
fact is self evident from the efforts employed daily to protect,
safekeep and conceal money.
Moreover, travelers have a right to expect that security
officers, as in the instant case, will maintain the confidence
and not disclose to anyone non-offensive articles observed
during preflight screening searches.
Here, the security officer betrayed that trust in exchange
for her personal pecuniary gain. This court cannot justify
allowing the constitutional rights of citizens to be free from
unreasonable searches and seizures to be bartered away for
individual personal gain.
12
PURPOSE OF THE SEARCH
The purpose of airport screening searches is appropriately
expressed in Davis, supra at 908:
“To prevent the carrying of weapons or explosives aboard
aircraft, and thereby prevent hijackings. The essential
purpose of the scheme is not to detect weapons or explo-
sives or to apprehend those who carry them, but to deter
persons carrying such material from seeking to board at
all.”
(See also, U. S. v. Kroll, 481 F.2d 884, 886).
The essential purpose of preflight searches was clearly sub-
verted here by the security officer's initiating a criminal in-
vestigation as a result of having seen a large sum of money
in petitioner's suitcase. Davis, supra at 909; U. S. v. Kroll,
supra; U. S. v. Newton, supra.
Obviously, the rewards being paid to airline screening em-
ployees will cause more searches than is necessary to meet
the administrative need that justifies it. Davis, supra at 910.
It would be tragic in the history of our jurisprudence if
this Honorable Court allows this unfortunate decision to stand.
Many innocent citizens are bound to suffer from the wrath of
this decision.
II.
INFORMATION GLEANED THROUGH SECRETLY
OBTAINING PHONE NUMBERS DIALED BY GUESTS
AT A MOTEL, WITHOUT THEIR KNOWLEDGE OR
CONSENT OR A COURT ORDER, MAY NOT BE USED
TO WEB A THEORY OF PROBABLE CAUSE TO
ARREST AND SEARCH.
In the instant cause, the police went to the motel manager
and secured, secretly, all of the phone numbers appellant
had phoned during her stay at the motel. These phone num-
13
bers were phoned back to Agent Markonni in Detroit, to see
if any of the persons phoned might be significant in the
investigation. This was part of the probable cause the de-
ciding panel refers to on pages 9 and 10 of the Opinion as a
basis for the subsequent arrest and search. We contend that
this evidence was obtained illegally and should have been
_ suppressed.§
The law is abundantly clear that every citizen has a reason-
able expectation of privacy that government agents do not
have access to the telephone numbers called by said citizen
while a guest at a motel. Being a guest at a motel does not
deprive one of all privacy. Stoner v. California, 376 U.S. 490
(1964), holding that, a guest in a hotel room is entitled to
the constitutional protection against unreasonable searches and
seizures and that an employee of the hotel may not waive
that right. The court said, id at 489:
“When a person engages a hotel, he undoubtedly gives
implied or express permission to such persons as maids,
janitors or repairmen to enter his room in the performance
of their duties . . . but the conduct of the night clerk and
the police in the present case was of an entirely different
order.”
The Supreme Court expanded the Fourth Amendment pro-
tections to include all reasonable expectations of privacy. Katz
v. U. S., 389 U.S. 347. The Supreme Court has said that the
courts are not bound by common law distinctions such as
5S/A Paul Markonni’s information to S/A Perkins that Boyer Bracy
was arrested as a violator of the Controlled Substance Act was clearly
erroneous, because the Controlled Substance Act was not in esse until
April 1, 1972, accordingly, he could not have been arrested for that
offense. Moreover, Bracy was a 16 year old juvenile in 1968 and would
not have been of record anyway (See Brief pages 25-27). Markonni’s
information was not dated or verified. He had had no prior contact or
knowledge of Bracy or appellant as a narcotics investigator. His informa-
tion about Bracy’s parents was admittedly incorrect (See Evidentiary
Hearing Transcript pp. 24-25; Brief pp. 6-8).
14
trespasses, etc., in deciding the search and seizure problem.
Jones v. U. S., 362 U.S. 357, 366.
Speaking on the expectation of privacy of phone subscribers,
the California Court of Appeals said in People v. McKunes,
51 C.A. 3d 487, 492 (1975):
“A subscriber has a reasonable expectation that records
of his calls will be utilized only for the accounting func-
tions of the telephone company in determining his bills.
He has no reason to expect that his personal life, as dis-
closed by the calls he makes and receives, and the day
and time of those calls, will be disclosed to outsiders
without some more judicial inquiry into the need for
such invasion and its extent.” (See also, Burrows v.
Superior Court [1974] 13 C.ed 238).
The very purpose for having unlisted phone numbers is
the security and peace of mind the subscriber has in knowing
that his numbers will fall in the hands of only those persons
who he wishes to have it.
While part of the accounting function of a motel business
is to keep records of the phone calls made by guests to
facilitate proper billing and to resolve any dispute as to the
amount of the bill, that privilege does not extend to turning
those numbers over to the police without court approval in
advance. McKunes, supra.
Clearly, the deciding panel has resolved this issue contrary
to decisions of the United States Supreme Court.
15
Til.
WHERE THE KNOWN OWNER OF PROPERTY
SOUGHT TO BE SEARCHED, WITHOUT A SEARCH
WARRANT, IS PHYSICALLY PRESENT, POLICE MAY
NOT SEARCH THAT PERSON’S PROPERTY ON
CONSENT GIVEN BY A THIRD PARTY.
In the instant case. some five carloads of police pursued
the vehicle in which appellant was riding and stopped it on
the highway. The occupants of the car were ordered out
and advised that they were being detained for investigation
of smuggling controlled substances. At least one officer had
a gun drawn. (E.T. 74-75, 98, 107)® The agent determined
that Welsh was leasing the vehicle, Turner was the driver
and appellant was a rear seat passenger. S/A Perkins in-
quired of Welsh whether she had any contraband or narcotics
in the car. She responded, “No, I don’t.” Perkins then stated,
“If you don’t have any narcotics, do you mind if I search
the car?” Welsh said, “No, go right ahead.” All the time,
appellant was standing right beside Welsh. (E.T. 76)
S/A McCoy took the keys out of the car and proceeded
to search the yellow duffel bag taken from the trunk, then on
to the green suitcase, which was likewise removed from the
trunk, wherein he found the narcotics.
Defendant Welsh testified that she gave consent because
she was frightened and was told that she was under arrest.
She did not consider that any consent she gave would extend
beyond the yellow duffel bag (E.T. 135). At no time did
she ever possess or handle the green suitcase (E.T. 105-106).
After listening to the arguments of defense counsel, the
district court inquired of the government at E.T. 146, “Assum-
ing the consent is good, doesn't it stop before it gets to that
green suitcase when they know the green suitcase is Mrs.
Canada’s, hat she has carried it from Detroit?” (Emphasis
6 E. T. references are directed to testimony in the Evidentiary Hearing
transcript.
16
added). The district court went on to deny the motion to
suppress.
We submit that the coercive manner in which the consent
of Welsh was obtained was not consent freely and voluntarily
given.
In Herter v. U. S., 27 F.2d 521 (9th Cir., 1928) the facts
were strikingly similar to those of the instant case. The off-
cer went to the defendant's house to purchase intoxicating
liquor. He rang the bell and defendant answered the door.
The officer asked the defendant, did he have any beer; defen-
dant said, “no.” The officer saw 2% cases of beer in the hall
and told defendant he had a still there; defendant denied that
he had a still. At this point, the agent said, “if you have
not, you do not mind my looking for it.” At this point, the
defendant invited the agent inside. The court found that there
was no free and voluntary consent given.
In Farris v. U. S., 24 F.2d 639, 640 (9th Cir., 1928), as the
officers approached defendant's house, they observed defen-
dant standing in the doorway in nightwear. After seeing the
officers, defendant closed the door quickly and ran back into
the house, and out onto a rear porch. He grabbed something
quickly and started back through the house and the officers
heard a breaking inside. The officers entered the house and
one of them told defendant they came there to look over
the house or search. Defendant replied, “All right. You
will find nothing here now.” The court held there was no
consent to the search. The court said at 640:
“It is very plain from this that the search was not made
because of the consent, but would have been made at all
events.”
(Citing — Amos v. U. S., 255 U.S. 313, 41 S. Ct. 266 ).
It is clear, in the instant case, that the officer intended to
stop and search the vehicle in question, consent or not. One
would be sanguine to the fullest extent to believe that the
surveilling officers would request the assistance of backup
17
police units to overtake and stop the vehicle, and order the
occupants outside to see if someone would consent to a search.
Moreover, the U. S. Attorney’s Office had informed the officers
earlier that day that there was probable cause to arrest the
occupants and search the vehicle upon its return across the
Mexican Border. Obviously, $/A Perkins had no intention
. of obtaining a warrant, because he had never obtained a war-
rant before (E.T. 69, 103-104).
Obviously, the search would have been made in all events,
just as the court said in Farris, supra. Accordingly, there was
a need to show independent probable cause and exigent cir-
cumstances to support the search without a warrant. [See
also, Cash v. Williams, 455 F.2d 1227 (CA 6, 1972)].
The deciding panel states that the warrantless arrests were
justified from the finding of the contraband. However, this
statement is clearly erroneous. An arrest is never justified
on what is found in a search, there must be independent prob-
able cause to make the arrest itself. On the other hand, a
valid search without a warrant may be made incidental to
a lawful arrest, provided the search is not extended beyond
the permissible area. Chimel v. California, 395 U.S. 752;
Vale v. Louisiana, 399 U.S. 30.
Contrary to the suggestion of the court on page 10 of the
opinion, Hernandez v. U. S., 353 F.2d 624, 627 (9th Cir.,
1965), is not comparable to the present fact situation. All of
the facts combined in the instant case were consistent with
innocent conduct. U. S. v. Kroll, 481 F.2d 884, 887; U. S. v.
Moore, 483 F.2d 1361, 1363, 1364 (9th Cir., 1973).
The deciding panel clearly errs in assigning the facts of the
instant case to the category of cases characterized the “auto-
mobile exception.” The exigent circumstances known in
Chambers v. Maroney, 399 U.S. 42 (1970) were not present
in the instant cause. The officers here had every one under
arrest and the vehicle under control in broad open daylight.
(of Cash v. Williams, supra).
On page eleven of the opinion, the court incorrectly stated
that the car made a short trip to Mexico carrying a suitcase
18
in which a large sum of cash had been seen. First, there is
no revelation of the period of time the car was in Mexico.
Second, the yellow duffel bag was in the car when it went
to Mexico and no money was ever seen in said bag. Moreover,
the court’s suggestion that the agents had no way of knowing
if the car would return to the Southern District of California
does not hold muster, because one of the group remained at
the motel and none of the parties had checked oui. The
agents reasonally knew they would return, that is why they
kept surveillance on the motel. The agents had no intentions
of seeking a warrant.
In every case examined by us, we have found that where
the issue of the validity of a third party’s consent to a search,
it involves an absentee defendant. In the instant case, the
appellant was present when the search of the green suitcase
occurred, wherein the contraband was found. As the district
court observed at E.T. 146, the agents knew the suitcase was
hers, she carried it from Detroit. Co-defendant Welsh had
no apparent connection with the green suitcase. Accordingly,
any consent that Welsh gave to the officers to search could
not extend to the green suitcase any more than if an officer
walked up to 100 soldiers and asked one of the group could
he search everybody's bag, with full knowledge that 99 of the
100 bags did not belong to the person asked. Stoner v.
California, supra; Chapman v. U. S., 365 U.S. 610 (1961);
Cunningham v. Hernze, 352 F.2d 1 (9th Cir., 1965); People
v. Stage, 7 C.A. 3d 681 (1970); State v. Johnson, 85 N.M. 465,
513 P.2d 399; People v. Weinstein, 245 N.E.2d 788; May v.
State, 199 So.2d 635; State v. Hall, 142 S.E.2d 177; Piazzola
v. Watkins, 442 F.2d 284 (5th Cir., 1971); People v. Flowers,
179 N.W.2d 56 (1970).
19
IV.
AN ACCUSED SUFFERS AN IMPAIRMENT OF HER
CONSTITUTIONAL RIGHT TO BE FREE ON BAIL
PENDING TRIAL, AND BE ACCORDED A FAIR AND
IMPARTIAL TRIAL AND SENTENCE WHERE:
(a) The trial court refuses to allow friends of petitioner
to post her bond, unless an attorney for third parties
disregard his confidential relationship with his clients
and disclose the source of the bail money.
Petitioner is a separated woman, receiving ADC benefits
for herself and two minor children in Detroit, Michigan. Her
bail was initially fixed at $150,000.00 by the magistrate and
continued to the trial court. Constant pressures were being
exterted by the court to aid the United States Attorney's Office
in their investigation of other persons. For example, the trial
judge said at petitioner's sentencing that:
“I have the feeling that the only reason she hasn't cooper-
ated with the government is her personal fear which 1
suspect in this instance is well founded. Therefore, I
am going to sentence her on the basis that, because of
that fear, she’s not going to cooperate with the govern-
ment. If I thought I could get her cooperation by giving
her thirty years, I'd give her thirty years—” (Emphasis
added )
It was only after petitioner’s sentencing that the trial court
would approve the posting of petitioner's $100,000.00 bond.
All during pretrial proceedings, the court refused to justify
the surety so that the bond could be posted. Hearings were
conducted in Michigan and San Diego on the sole issue of
justification of the surety. In each instance, the court refused
to allow the bond to be posted unless the names of the persons
furnishing the money were disclosed.
(Hearing March 14, 1975, at p. 6):
MR. SCIARRETTA: “Your Honor, would you be willing
20
or do you want to hear from Mr. Rice on the record as
to the assertions that I have made?”
THE COURT: “No, not unless he’s going to tell me on
the record under oath where that money came from.”
It is obvious, from the overall picture, that the court’s pri-
mary concern with the posting of petitioner's bond was to
force the disclosure of information that would assist the gov-
ernment’s ongoing investigation of other possible offenders.
This clearly dissclves the neutrality required in the guarantee-
ing an accused fair consideration of pretrial matters and a
fair trial. This fact becomes even more obvious after the
court was convinced that no governmental cooperation was
forthcoming from the petitioner, the trial court released her
on an appeal bond with even less collateral.
While we contend that the amount of the bond was un-
reasonable, due to the lack of any prior record and community
ties, the court’s actions in refusing to allow the posting of bail
by imposing impossible conditions so as to thwart the obvious
purpose of bail and serve as a thinly veiled cloak for preventive
detention, was highly improper. U. S. v. Leathers, 412 F.2d
169, 134 U.S. App. D.C. 38.
Here, the court put the right to be released on reasonable
bail out of reach of petitioner, as she would have no control
over an attorney that was not representing her at the time.
Moreover, the attorney could not disclose that information,
due to the possible detriment to his clients. U. S. v. Nunez,
483 F.2d 453 (9th Cir., 1973); Baird v. Koerner, 279 F.2d 623
(9th Cir., 1960); In re: Grand Jury Appearance of Alvin S.
Michaelson, Esq. Docket No. 74-3409 (9th Cir., 1-22-75).
The Bail Reform Act specifically favors release of a defen-
dant awaiting trial under minimal conditions. U. S. v. Gillin,
345 F. Supp. 1145; U. S. v. Honeyman, 470 F.2d 473. Being
released on bail so that the accused is free to use her efforts
to assist counsel in the preparation of her defense, and to
be available for private interviews of ounsel’s office without
21
the apprehension of being overheard is invaluable to the
effective assistance of counsel.
(b) The trial court unnecessarily commented on evi-
dence favorably to the prosecution.
One of the most heatedly contested issues in the trial of
the instant case was whether petitioner was carrying $68,000.
It was the argument of the government that this was the
probable amount necessary to purchase the contraband found
in petitioner's suitcase.
During defense counsel’s cross examination to test the mem-
ory of the government’s principal witness, the court interrupted
as follows, at T. 255:
Q. “Do you think you could identify everyone of those
pantsuits?
A. Not in detail.
THE COURT: Did any of them have $68,000 with
them?
(Emphasis added )
Q. Well, let’s get into that aspect. Miss Thomas you
don’t know — how much money was in that bag, do
you?
No, I don’t.
A.
Q. And when his Honor says $68,000, you don’t know
that, do you?
Except for the figure written on front, but I don’t
know.”
This was clearly not a question by the court to clear up an
ambiguity. The remark was clearly designed to assist the
prosecution to nail down a hotly contested issue in the case,
which could not otherwise be proven. U. S. v. Fernandez,
480 F.2d 726.
22
(c) The trial judge’s refusal to allow inquiry of a juror
disclosed to have had a prior and existing amicable
relationship with one of the principal witnesses for
the prosecution smudged the appearance of justice.
In the instant case, it was brought to the attention of the
court, by the Assistant United States Attorney, that one of the
jurors, Vincent Deltondo, was personally acquainted with Sgt.
Redding, a principal government witness and one of the
investigating officers that participated in the surveillances and
arrests of the defendants. Counsel advised that the relation-
ship between the officer and the juror had always been amica-
ble (T. 234-235).
Although the names of all prospective witnesses were care-
fully read during voir dire of the jury, including the name
of Sgt. Redding, all jurors, including Mr. Deltondo, denied
knowing any of the prospective witnesses.
Defense counsel requested that an inquiry be made of said
juror so that an intelligent and fair determination could be
made of his fitness to continue as a juror. Two alternate jurors
were seated. The court refused to allow any inquiry of the
juror. This was clearly erroneous.
This argument is addressed to more than just general fair-
ness or a substantially fair trial. This argument is addressed
to the very appearance of justice. Mooney v. Holohan, 294
U.S. 103; Brady v. Maryland, 373 U.S. 73, 83 S. Ct. 1194.
It is difficult to understand why the court refused to allow
an inquiry of said juror, since nobody could be prejudiced
thereby. There were sufficient alternatives to replace him
if it were deemed that he should have been excused.
Because of the prejudicial misconduct of the trial court, peti-
tioner stands convicted of serious offenses for which she has
been sentenced to five (5) years plus fifteen (15) years special
parole, wondering if the jury that convicted her was tainted.
One can only wonder what affect that one juror might have
had on the ultimate decision in petitioner's case. Certainly,
he could have been excused with a peremptory challenge.
23
Justice should never appear to be a stacked deck against
an accused as the trial court consistently allowed in the instant
case.
(d) The trial judge’s refusal to consider petitioner’s plea
for a more lenient sentence, because she would not aid
the government's efforts to prosecute others, is a void
sentence.
In the instant case, the trial judge made it clear that peti-
tioner’s failure to set aside her fear for her safety and come
forth in assisting the government in their investigation of other
possible violators, forfeited any chance she had for a more
lenient sentence (T. 419). Petitioner’s sentence was clearly
illegal, because of the factors considered by the court in im-
posing it.
It is to be noted that one of the co-defendants with a prior
criminal record received a lighter sentence than petitioner,
which was grossly unfair, and can only be attributed to the
fact that petitioner more vigorously fought her case. [See
People v. Jones, 254 N.E.2d 843 ( 1969].
CONCLUSION
A sense of justice and concern for the uniformity of our
national jurisprudence compels this Honorable Court to grant
Certiorari in this cause.
Respectfully submitted,
/s/ WILFRED C. RICE
Attorney for Petitioner
2436 Guardian Building
Detroit, Michigan 48226
313/965-7962
APPENDIX
=-
IN THE UNITED STATES DISTICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
HONORABLE LELAND C. NIELSEN, JUDGE PRESIDING
Criminal No. 75-0337
UNITED STATES OF AMERICA,
Plaintiff,
v.
MARGARET CANADA,
Defendant.
REPORTER'S TRANSCRIPT OF PROCEEDINGS
San Diego, California
Friday, March 14, 1975
APPEARANCES:
For the Plaintiff:
HARRY D. STEWARD
United States Attorney
BY: ROBERT D. KRAUSE
Assistant United States Attorney
For the Plaintiff:
JOSEPH A. SCIARRETTA, ESQ.
U. S. National Bank Building
San Diego, California and
WILFRED C. RICE, ESQ.
2436 Guardian Building
Detroit, Michigan 48226
la
2a
[2] SAN DIEGO, CALIFORNIA, FRIDAY, MARCH 14,
1975, AT 4:30 P.M.
THE CLERK: No. 1A on calendar, Case 75-0337, United
States of America v. Margaret Canada for further bail review.
MR. SCIARRETTA: Thank you, your Honor. Joseph Sci-
arretta appearing on behalf of Margaret Canada, the defen-
dant. I was told that she would probably be made available to
be present at the hearing.
THE COURT: She is.
MR. SCIARRETTA: Thank you, your Honor.
Mr. Wilfred C. Rice, an attorney admitted to practice law
in the state of Michigan, a member of good standing of that
Michigan Bar, is present in court. He has flown out here
from Detroit, Michigan, his home and also place of business,
to testify, if necessary.
Your Honor, sometime during last — well, it was this week;
it was Tuesday afternoon — in Detroit at approximately 3:30,
as you reiterated this morning, a Mr. Charles Goldfarb, a
bondsman was interviewed. At that time he indicated that
Mr. Rice gave to him certain amounts of cash totaling $60,000
to effect a premium, and also to be used as collateral for
Mrs. Canada’s surety bond which I have attempted to file
with the U. S. District Court. Mr. Rice indicated to Mr. Gold-
farb at that time that he would not divulge the name of the
person who gave him the money because that person pre-
senting the money to him was [3] also a client, and he by
telephone notified this Court through Magistrate McCue that
he was invoking the attorney/client privilege with regard
to that disposition of the money.
Your Honor, if Mr. Rice were called to testify — and he is
present to do so — he would indicate to the Court that the
person who has approached him with the financial contribu-
tion to put the bond up for Mrs. Canada is in fact a client
of his. Mrs. Canada is also a client of Mr. Rice, and if I
may explain the relationship, I am attorney of record. I am
representing Mrs. Canada in proceedings before the United
3a
States District Court here in California. Mr. Rice has also
been retained as co-counsel to represent her and her interests.
Now, I have some case authority that I have looked into.
I know that his Honor may have made up his mind with
regard to the claim of privilege. I would merely in a very
short fashion attempt to create for the record and for his
Honor our explanation of our position in this matter. I rely
upon the case of United States v. Nunez which is a Ninth
Circuit Court case and that’s a 1973 decision. In that case
the defendant Mr. Nunez was convicted of conspiracy. One
of the elements, one of the elements of evidence that was
used against him at that proceeding was the fact that he,
while not incarcerated, although albeit a suspect, put up the
bond for three co-conspirators and the Court indicated that by
doing so, by putting up the bond for those people who were
subsequently labeled as co-conspirators, [4] he was acting in
furtherance of the conspiracy.
By way of analogy, and I use the hypothetical, the person
who is Mr. Rice’s client may or might be in some way in-
volved in this transaction. If, in fact, his name is disclosed
as being the person who puts up the bond or money to
secure the bond in this case, under the Nunez decision that,
in fact, is sufficient to find him guilty of conspiracy iu this
matter. Using that case as authority, I would say that, number
one, that case as it applies here would justify Mr. Rice in not
disclosing the name or identity —
THE COURT: I have no question at this particular time,
Mr. Sciarretta, that Mr. Rice has a perfect right to rely upon
the attorney/client privilege and not say who handed him this
$60,000 in cash. That is not the question before this Court.
MR. SCIARRETTA: Well, I was under the impression in
receiving at least a telephonic account of the letter that Mag-
istrate “Convies’ from Detroit had prepared that there did
not seem to be much of an issue at all with regard to the
surety or the Goldfarb agencies in putting up the bond. I
felt that they were, those officials were, at least felt secure
that there was adequate collateral and adequate monies to
da
secure her appearance and if she did not appear, that the
government would have no difficulty in collecting on a surety
bond. Now, I may be wrong.
THE COURT: That’s not quite — well, that may be; you
may [5] be right in that — but that’s not the Court’s concern
about the matter. The Court is concerned — I want to know
where that $60,000 came from. I want to know whose money
it is. I want to know why they are interested in putting up
$60,000 of their cash money for a $10,000 premium on a
hundred thousand dollar bond, and without that information
under oath, I'm not going to approve the bond.
MR. SCIARRETTA: Your Honor, I have heard the ra-
tionale, but I would request that the Court reiterate for the
record, number one, whether or not they are seeking the in-
formation from the indemnitor to establish motive for putting
up the money, or, number two, to determine whether or not
there's adequate surety for this corporate bond.
THE COURT: Mainly it’s the motive to see what would
induce somebody — what the relationship with this defendant
is of the person who's willing to put up his or her $60,000
in cash to help get Mrs. Canada out on bail.
MR. SCIARRETTA: Your Honor, as you may or may not
know, in this case there was an attempt on the part of the
defense to put before the Court real property to secure a
bond which real property was also disallowed, or found to
be not acceptable by the United States Magistrate. I would
merely indicate that at that time the names of the parties who
were putting up the real property were disclosed but were
found to be unacceptable because of a Narcotics Task Force
officer's assertion that those people [6] may in fact be in-
volved in narcotics traffic.
I was also reminded by Mr. Rice, your Honor — and I’m
sure the Court is aware of this — that the defendant’s mother,
Mrs. Gooden, made an appearance in this district from her
home state of Michigan. She was here for approximately one
week and, in fact, pledged her real property which had an
equity of only five thousand dollars but represented all that
- 5a
the family had and they were willing to place that before the
Court. There, again, your Honor, that property was deter-
mined to be insufficient to secure the appearance of the de-
fendant.
Your Honor, would you be willing or do you want to hear
from Mr. Rice on the record as to the assertions that I have
alleged?
THE COURT: No, not unless he’s going to tell me on the
record under oath where that money came from.
MR. SCIARRETTA: Well, from a practical standpoint,
your Honor, I’m at odds because I can see the Court's posi-
tion in making inquiry, but it seems as though — and maybe
this is just the practical result — that there's more of an on-
going investigation as opposed to satisfaction of the surety.
In other words, is it the Court’s position that they want to
know who is putting up the money for further investigation?
THE COURT: I want to know who is putting up the
money from one standpoint: to find out what motive she'll
have to come back to court if she’s allowed out on bond.
I'm interested in finding [7] out whether, whoever this mysteri-
ous person is who's putting up $60,000 of his or her cash
money, whether they have a motive to keep Mrs. Canada
from coming back to court which is the primary motive which
has happened not only in this district but in other districts.
People with very substantial motives to not have defendants
appear in court have put it up.
MR. SCIARRETTA: Then are you asserting, your Honor,
that there is a fear —
THE COURT: I'm not asserting anything. I'm saying I
am not going to approve this bond unless I have testimony
under oath that is acceptable to the Court as to where the
money is coming from, who's putting it up and what their
motive is in putting it up.
We can get this case to trial in two weeks if you want to.
We'll try it the week of the 25th.
MR. SCIARRETTA: Well, your Honor, I'm sure, as you
know, there will be — we'll be discussing on Monday, on the
6a
17th of March, a motion/disposition setting date and I an-
ticipate that there will be motions filed because of the mag-
nitude of the case and I think that — I appreciate the Court’s
concern — but —
THE COURT: When there are four pounds of heroin and
a pound of cocaine involved, the U. S. Attorney’s Office is in-
terested and the Court is interested in finding out who's putting
up $60,000 in cash to secure as premium and as partial col-
lateral on the bond.
[8] MR. SCIARRETTA: Well, that basically is my po-
sition, that the investigation is not to satisfy the Court that the
amount of collateral or that the bond is good, but merely as
an avenue to continue an investigation into alleged illicit con-
nections with Mrs. Canada.
Now, the Court has fixed bond which the Court deems
reasonable in the amount of one hundred thousand dollars.
We're prepared to file such a bond with the Court to assure
her appearance. Now, I think if in fact the threat of not
accepting the bond until we have heard from someone else is
merely for an ongoing investigation on the part of the Nar-
cotics Task Force, then —
THE COURT: Im not here to help the Narcotics Task
Force or any ongoing investigation. I’m here with the idea
in mind that I want to see Mrs. Canada in this court at all
times that she’s due here, and to see that she is able to arrive
here safely.
Now, I can easily see, Mr. Sciarretta, that somebody ap-
parently back in Detroit could have a very strong desire to
see that she never comes back into this court or any other
court, with very strong reasons for that feeling.
MR. SCIARRETTA: I can see, your Honor, where you
would have those suspicions. They have been voiced by other
officials of this court, but I was going to ask Mr. Rice to step
forward and address the Court with regard to the main issue
that the Court must decide: whether or not Mrs. Canada
will make her [9] court appearances. Would you care to hear
from him?
7a
THE COURT: Not unless he’s going to testify under oath
as to where this money came from.
MR. RICE: I’m not going to name the client, but it came
from a client.
THE COURT: That is not satisfactory, Mr. Rice.
MR. SCIARRETTA: As I indicated, your Honor, he’s com-
pelled to claim a privilege in this matter because of the in-
criminating or potential i siminating nature of divulgence in
this case.
THE COURT: Allright, that’s the way it is.
The court’s in recess.
( Adjournment. )
[CERTIFICATE OMITTED]
RELEVANT EXCERPTS FROM TRIAL TRANSCRIPT
[214] Q Now, what, if a you say to the male
ing this green suitcase
~ "Well, I tak the se to the end of the belt and put it
on the table and I told the male that 1 had to open it and
inspect it because I couldn't read what was on the X-ray.
And what did he say?
A And he asked me why I had to do it, and that there
wasn't anything in it, and I said, “Well, I have to because I
couldn’t tell, I couldn’t identify the object in the bag.
Q What did he say to that?
A He didn’t say anything. 2 .
Q Now, the individual that you have identified here in
court seated at counsel table here: did she say anything
while this was going on?
A No, she didn't. .
Q How close was she to the man who was doing the
alking?
A ‘She was standing beside him.
8a
Q Did you thereafter open the bag?
A Yes.
Q And what was inside?
A There was a brown paper shopping bag and I can't
remember the article of clothing. It was either a blouse, may-
be a jacket, was on the right side of it.
Q Do you recall what color that article of clothing was?
A I couldn't tell you. I know it was dark.
[224] Q Since that time, if you can approximate, how
many people have you checked, say, since —
Did you work yesterday?
A No.
Q Well, if it was ninety days, and I don’t know if it’s
been that many, but if it was ninety days, would it be
forty-five or fifty thousand people? Would that be fair?
A Yes.
THE COURT: It would be four hundred fifty thousand.
MR. SCIARRETTA: That's why I practice law. I couldn't
do anything else.
THE WITNESS: I work a seven and a half hour day and
that’s maybe five or six thousand, something like that, is what
I check through.
BY MR. SCIARRETTA:
Q So you have seen or you have checked approximately
four hundred to four hundred fifty thousand people since this
incident.
A Yeah.
Q Would you say half of those are male?
A Yes.
Q And of the approximately two hundred thousand people
that you have checked since then, have any of those females
worn pantsuits?
A Yes.
[225] Q Have any of those been beige?
9a
A Yes.
Q Do you think that you could identify each and every
one of those pantsuits?
A Not in detail.
THE COURT: Did any of them have $68,000 with them?
Q Well, let’s get into that aspect. Miss Thomas, you
don’t know how much money was in that bag, do you?
A No, I don’t.
Q And when his Honor says $68,000, you don’t know
that, do you?
A Except for the figures written on front, but I don't
know.
Q Now, would it be fair to say that you can recall a per-
son wearing a beige suit similar to the one that you were shown,
Government's 2?
A You mean the same day?
Q Well, no, you have identified the Exhibit No. 2 as be-
ing the beige pantsuit, have you not?
A Yes.
Q Well, is it your testimony that it’s similar in nature?
You can’t identify it exactly, can you?
A No.
Q With regard to the green suitcase, Miss Thomas, you
have also identified that as having seen that before.
[226] A Yes.
Q Would you say that you see approximately as many
suitcases as you do people?
A Yes.
Q And would you say that there are a lot of green suit-
cases?
A Yes.
Q Just for the sake of convenience, can we say you have
seen a hundred thousand over that period of time?
A Yes. Sat
Q Well, when you tell this jury that you identify that
suitcase, you don’t really recall that this is the specific suitcase,
do you?
10a
A It looks familiar.
Q Okay. It looks familiar, but you can’t say with definity
that that is the very suitcase, can you?
A No.
Q Miss Thomas, did you ever see —
By the way, can you specifically identify the female in the
blue pantsuit as being the woman that you saw back on Feb-
ruary 16th?
MR. PETERSON: Objection, your Honor; that’s a mis-
statement of the evidence.
THE COURT: Sustained.
[233] THE COURT: Let the record show these proceed-
ings are outside the presence of the jury at the request of
defense counsel.
MR. SCIARRETTA: Yes, you Honor; it is at my request.
I respectfully make the motion of the Court — first of all.
I would voice my objection to the comment of the Court
focusing upon the Court’s comment as to the $68,000, and,
briefly, to give some background. I was asking the witness
at that time how she remembered the suitcase, and I be-
lieve the Court’s comment was — and please correct me if
I'm wrong — that she would remember it because there was
$68,000 in the suitcase.
THE COURT: I think your questions at that time, Mr.
Sciarretta, were directed to how she could remember this
defendant.
MR. SCIARRETTA: And I think that is when the com-
ment took place: Well, how often do you come across $68,-
000 in a suitcase? That, your Honor, first of all, is one of the
issues in the case. The witness indicated on the stand that
she didn’t know how much money was in the suitcase. I
think the Court’s comment, innuendo, would indicate to the
jury that there was $68,000 in there, and I feel that that
statement was prejudicial to my client.
Now, I don’t want to pick on minor issues, but I do feel
that that is one of the major ‘issues and if, in fact, the jury
lla
believes there was $68,000 in there, or whatever, that their
understanding is that the Court believes there was $68,000
in [234] there and it’s their province, and I think that was
prejudicial. For that reason, 1 would note my objection dnd
request a motion for a mistrial be granted at this time.
THE COURT: The motion for mistrial is denied.
MR. PETERSON: May I make an offer of proof at this
time?
THE COURT: No.
Bring the jury in.
MR. PETERSON: There is one point, unrelated point.
THE COURT: All right.
MR. PETERSON: I am told by Agent ..cdding that as
the jury was filing out for a recess, for the noon recess, Mr.
Redding came in to tell me that he knows personally one of
the jurors. I believe it’s Vincent Deltondo, and he’s person-
ally familiar with him and knows him, not on a social basis
but through his prior experience as a police officer.
I just want to bring that to the Court attention.
THE COURT: Very well. Bring the jury in.
(The jurors then resumed their places in the jury box.)
THE COURT: The record may show the jurors are now
present together with Counsel and the defendant.
Please resume the stand, Miss Thomas.
MR. SCIARRETTA: Your Honor, may we have a confer-
ence at sidebar just momentarily?
(Proceedings were then had between the Court and Coun-
sel at the bench as follows: }
[235] MR. SCIARRETTA: _I don’t know the nature of that
contact, but I’m wondering if it was a situation where the
juror was employed by the police or in some capacity was
working with them or against them or was under investigation
or —
MR. PETERSON: From what I know, Mr. Deltondo testi-
fied during voir dire that he was the manager of cocktail
lounges, as I recall.
THE COURT: That's right; two of them.
12a
MR. PETERSON: Mr. Redding informs me that his con-
tact or basis for personal acquaintanceship with Mr. Deltondo
is the fact that Mr. Redding used to be on the vice squad and
came in contact with him through that method.
THE COURT: It’s probably to the defendant’s advan-
tage, if anything.
MR. PETERSON: Well, Mr. Redding states that their
relationship was always amicable.
MR. SCIARRETTA: Did he ever offer him a free drink?
MR. PETERSON: That I don’t know.
(Proceedings were had in open court as follows: )
BY MR. SCIARRETTA:
Q Miss Thomas, just a few more questions.
First of all, you indicated that one of your duties in inspect-
ing luggage was to determine whether or not there were any
weapons; is that correct?
A Yes.
oO ° oO
[372] * ° ° She didn’t count it.” But, circumstantially, there
is no doubt that that bag contained $68,000. There they are,
the stacks of currency, the figure on the bag. What else could
it be? What else could it be? And from that point on, this
little operation, this little conspiracy, is under surveillance.
But it’s not so little, really, is it? $68,000 cash winging its
way to San Diego and Tijuana, the mecca of the drug traffic
in this area.
MR. SCIARRETTA: Your Honor, I'll object to Counsel’s
categorization of —
THE COURT: Yes, I don’t think there’s any evidence in
this case to justify that statement.
MR. PETERSON: When Margaret Canada arrives in San
Diego, there're officers waiting to see where she’s going to
go, and she’s met there by Clarence Scott Turner who, you
will recall, approached her in the airport. There was no in-
dication that Mrs. Canada waved him over. He approached
her. He obviously knew who-she was, and Mrs. Canada re-
13a
trieved the green suitcase from the conveyor belt or whatever
it is, and walked out of the airport. She handed the bag to
Mr. Turner and they walked as if to go into that parking
lot, then turned around and came back out and walked to
the center island and then all the way down that center island
to the waiting car where Anne Belle Welsh sat and off they
went.
Then there was the driving around in circles and U-turns
[373] and so forth on their way to that motel at Ninth and
“A”, and once they arrived there, Mrs. Canada and Mr. Turner
got out of the care and went in to register.
How did they register? You recall that the first room that
they rented was Room 27 and you'll see in the jury room
Government's Exhibit 3, and they registered as Mr. and Mrs.
S. Davis, 1440 South Bronson, Los Angeles, California; make
of car, AMC, and the license number, and they” paid cash.
You recall what the testimony was with Mr. Markonni? That
he went over to the boarding gate in the Detroit Airport and
talked to the boarding agent and found out what the travel
itinerary was for an S. Taylor.
A crime of concealment. Traveling under phony names,
registering under phony names.
MR. SCIARRETTA: Your Honor, I'm going to object to
that part of Counsel’s argument with regard to the itinerary.
There is no connection and there has been no testimony of
that.
THE COURT: There was testimony that he got the itiner-
ary of an S. Taylor.
MR. SCIARRETTA: That's exactly what he testified to.
THE COURT: Right. I think this is a perfectly permissi-
ble argument.
MR. PETERSON: Mrs. Canada has been under surveil-
lance for some hours now, starting at the Detroit Airport, and
she has yet to use her real name, traveling with $68,000 in
her suitcase.
[374] What else is in that suitcase, by the way? Theresa
Thomas recalls one other article of clothing, either a blouse
14a
or jacket or something of that sort, but that’s all. Winging
across half the country with $68,000 and one other article
of clothing. What is the reasonable inference to draw from
that? A short trip at the very least.
And what later do we find in that green suitcase? Do you
recall the testimony of Mr. Perkins who estimated the cost
of the value of that heroin and cocaine that was found in
that green suitcase? He estimated that the two kilos of heroin
cost $25,000 apiece and he estimated that the pound of cocaine
ran around fourteen or $13,000. Add it up; it comes up to
‘about $64,000. And how much was in the green suitcase?
$68,000. Circumstantial evidence.
His Honor will instruct you that circumstantial evidence
is every bit as good as direct evidence in proving a person
guilty of an offense — every bit as good.
Let’s talk about circumstantial evidence some more. Gov-
ernment’s Exhibit 9 found in the green suitcase. What was
this cutting agent inside of when it was found in the suitcase?
A Don Heller bag. And the receipt was on top of the bag.
Government's 10 was a Don Heller bag and inside that bag,
along with clothing, was a Don Heller receipt. Now, what
did Mrs. Canada have in her arms when she came back from
shopping that afternoon? * * °
[386] ° ° ° Don’t you think by this time she might be a —
little worried that Welsh and Turner got caught at the border
with all the stuff? Somehow this nefarious duo of Welsh and
Turuer were plotting against Mrs. Canada, Mrs. Canada who
is out here with the $68,000 and one item of clothing in her
suitcase, and for what purpose? What earthly purpose? Even
Mr. Sciarretta couldn't come up with a decent reason. There’s
only one reason and when you consider all of this evidence
and the logical, reasonable inferences that you can draw, there
is only one conclusion and that is that Mrs. Canada entered
into a conspiracy, an agreement not only with Turner and
Welsh, but with Boyer Bracy_to fly out here with $68,000
15a
end give that money over to Welsh and Turner for the pur-
chase of four pounds of heroin and one pound of cocaine.
Thank you.
THE COURT: Ladies and gentlemen of the jury, we'll
take our evening recess at this time. Please remember the
admonitions that I have given you and although you have
now heard the evidence and the arguments of Counsel, I
haven't had my chance at you yet, so you must not talk among
yourselves about the case or with anyone else, or allow anyone
else to talk to you about it, and not to form or express any
opinion on it until I finally submit it to you.
You’re excused until 9:15 tomorrow morning.
( Adjournment. )
16a
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 75-2696
UNITED STATE OF AMERICA,
Plaintiff-Appellee,
vs.
MARGARET CANADA,
Defendant-Appellant.
OPINION
{December 29, 1975]
Appeal from the United States District Court
for the Southern District of California
Before: HUFSTEDLER and WALLACE, Circuit Judges,
and PALMIERI,® Districi Judge.
PALMIERI, District Judge:
This is an appeal from a judgment entered on a jury verdict
finding appellant guilty of conspiracy to possess heroin and
cocaine with intent to distribute, 21 U.S.C. § 846(a), and of
possessing heroin and cocaine with the intent to distribute, 21
U.S.C. § 841(a)(1).
The appellant travelling under an assumed name, boarded a
scheduled air carrier in Detroit on February 16, 1975, bound
* Honorable Edmund L. Palmieri, United States District Judge, South-
em District of New York, sitting by designation.
17a
for San Diego, taking with her a suitcase containing a large
amount of cash. The concatenation of events occurring imme-
diately prior to her departure from Detroit, and in San Diego
after arrival, led to her arrest the next day as she was proceed-
ing speedily by car on a major highway in the direction of
Los Angeles.
The appellant challenges the legality of two searches and
the probable cause for her arrest.
The facts which the jury could find from the evidence are
substantially the following.
The Airport Security Search in Detroit
On February 16, 1975, Theresa Thomas, an airlines security
guard, was on duty at the Detroit Metropolitan Airport check-
ing the carry-on baggage of departing passengers for weapons
and explosives with the aid of an x-ray machine as part of
the airline’s anti-hijacking program. At approximately 5:45
p.m. a male carrying a green suitcase and accompanied by
appellant approached her station. As the suitcase went
through the x-ray machine, half of it was displayed on the
screen as an indeterminate dark area. Thomas told the
male that the suitcase would have to be opened. The man
asked why it had to be opened since there was nothing in it,
and Thomas informed hin: that it was necessary to see what
was inside since the x-ray machine did not show the contents
of half of it. Appellant’s companion did not reply. The
appellant, standing next to him, said nothing. Opening the
suitcase, Thornas found one article of clothing and a grocery
bag with a rubberband around it. She opened the bag and saw
stacks of 20- and 50-dollar bills. As she closed the bag and
returned it to the suitcase, she notice the figure $68,000 inked
on the front of the bag. As the couple left, appellant said
something to her companion which Thomas did not hear, to
which the man replied, “Don’t worry about it; it’s okay.”
Thomas noted which gate the pair proceeded to, found that
appellant Canada was flying under the name S. Taylor, and
18a
watched her board the plane for San Diego without her com-
panion. Thomas reported all this to an agent of the Drug
Enforcement Agency (OEA) at the airport.
The agent watched the male companion leave the airport
and watched as he was arrested in the parking lot by local
police for a traffic infraction. The agent learned from the
local police that the man they had arrested was on record as
a narcotics violator and that he was the son of two persons
on record with the DEA as narcotics violators.
The Events in San Diego
This information was relayed to DEA agents in San Diego
where surveillance of the airport was arranged in anticipation
of appellant’s arrival there. Appellant was met at the San
Diego International airport by a male later identified as code-
fendant Turner. Appellant retrieved the green suitcase from
a baggage conveyor belt and handed it to Turner. The couple
then left the airport, walked into the parking lot, doubled back
from the parking lot to the pedestrian island where they walked
the length of the airport until they arrived at a waiting auto-
mobile driven by a female later identified as codefendant
Welsh. During this maneuver, Turner continually glanced
over his shoulder, paying particular attention to the front of the
air terminal. In the course of driving to the downtown San
Diego area, the trio executed a variety of maneuvers, includ-
ing three or four U-turns in the middle of the block for no
apparent reason, which are not satisfactorily explained by a
lack of familiarity with the area, and which, in the opinion of
one of the officers, were attempts to spot and lose any pursuer.
Appellant and Turner registered in a motel room as man
and wife under assumed names. A second room was rented in
Welsh’s name. Three long distance calls to Detroit were made
from one of the rooms, one to a known associate of the parents
of the man who had accompanied appellant to the Detroit
airport who were known narcotics violators. That evening as
the trio drove to a cocktail lounge they executed numerous
19a
maneuvers apparently intended to flush out and abort any
surveillance.
The next morning appellant took a cardboard box and the
green suitcase to the room where the other two had stayed.
She then walked to the downtown area of San Diego, returned
at 1:30 after the others had left, and waited in a state of ob-
vious agitation for their return.
Turner placed an empty yellow duffel bag in the car and
shortly thereafter he and Welsh drove directly to Mexico, cross-
ing the border at 11:30 a.m. They were next seen returning
to the motel at 4:10 p.m. Immediately thereafter, Turner
rapidly removed from the car and carried into the motel a
paper sack and the yellow duffel bag which appeared to con-
tain objects which made the bottom form a V. Within four
or five minutes, Turner came out of the room carrying the
green suitcase and walking at a rapid pace. He almost threw
the suitcase into the trunk of the car, and followed it with
the duffel bag that now looked full and well packed. Turner
positioned the vehicle near the motel office while appellant was
in the office. When appellant came out of the office, she
entered the car with the other two and Turner accelerated at
a fast rate of speed and proceeded to an interstate highway
and headed north. The DEA agents then stopped the car
with the aid of uniformed police. They searched the car,
found four pounds of heroin and one pound of cocaine in the
green suitcase, and arrested appellant and her two codefen-
dants.
The Airport Search of the Suitcase was Conducted
Pursuant to a Valid Consent
Appellant’s first complaint is that her fourth amendment
rights were violated when the green suitcase being carried by
her male companion was searched by an airline employee at
the Detroit airport. If she should prevail on this issue, the
charges against her require dismissal as the balance of the
government’s case would be the fruit of a poisoned search.
20a
Silverthorne Lumber Co. v. United States, 251 U.S. 385, 391-
92 (1920). However, we find no legal infirmity in the search.
We find it was conducted pursuant to a valid consent.
First, there can be no doubt that the actions of the airline
security guard constituted state action for fourth amendment
purposes. United States v. Davis, 482 F.2d 893 (9th Cir.
1973). Second, the government argues that appellant does
not have standing to object to the search because the searcher
could not have known the luggage was in her custody. This
is not a requirement for standing to object. The state of mind
of the searcher regarding the possession or ownership of the
item searched is irrelevant to the issue of standing.’ Rather,
standing to object is predicated on the objector alleging and,
if challenged, proving he was the victim of an invasion of
privacy. Jones v. United States, 362 U.S. 257, 261 (1960).
In her original motion to suppress, appellant claimed the suit-
case as hers. The government has not disputed this claim of
ownership. In fact, the government's evidence that she trans-
ported it to San Diego and was seen with it there on several
occasions lends support to her claim. This is sufficient to
confer on appellant standing to object to its search.
The fact that appellant was not openly exercising control
over the suitcase immediately prior to the search does not
defeat her standing. United States v. Mulligan, 488 F.2d 732
(9th Cir. 1973), cert. denied, 417 U.S. 930 (1974) (car owner
could object to its search though he had no control over the
car when it was searched, had registered it under a fictitious
name and had parked it in an acquaintance’s driveway for over
two months). Furthermore, she did not relinquish her pro-
tectible interest, nor her standing to object, by sharing access
and control of the suitcase with her companion. Mancusi v.
DeForte, 392 U.S. 364 (1968).
1 But see United States v. Matlock, 415 U.S. 164, 177 n.14 (1974),
where the Court leaves open the question whether the government satis-
fies its burden for establishing third-party consent to a search by showing
that the searching officers reasonably believed that the third party had
sufficient authority over the area searched to consent to the search.
2la
This brings us to the question of consent. The Supreme
Court in Schneckloth v. Bustamonte, 412 U.S. 218 (1973), held
that whether a consent to search is voluntary is a question of
fact to be determined from all the circumstances and that the
government is not required to prove knowledge of a right to
withhold consent as a sine qua non of an effective consent. In
Davis, supra, we dealt with an airport search similar to the
instant case and held that the threhold question of whether or
not there had been consent-in-fact must be decided in the
affirmative before the precise Bustamonte question of volun-
tariness could be broached. The present case falls somewhere
between the verbal consent in Bustamonte and the facts in
Davis. As anticipated in Davis, we find that “the alternatives
presented to a potential passen~er approaching the screening
area are so self-evident that his election to attempt to board
necessarily manifests acquiescence in the initiation of the
screening process.” 482 F.2d at 914. Since the 1971 search
in Davis, the nature and scope of airport searches have become
much more widely known. Such searches have become an
almost universal practice. The suitcase in question was volun-
tarily placed on a conveyor belt that led directly to the check-
point and through an x-ray machine. While appellant and her
companion may not have expected the contents of the suitcase
to be subjected to a visual search,” the facts here are sufficient
to support a finding of voluntary consent-in-fact to this further
search. In Davis, the appellant’s briefcase “‘was taken from
his hand, opened before he had a chance to really do or think
anything.” 482 F.2d at 914, incontrast, the airline agent here
asked the appellant’s companion for permission to open the
suitcase and explained the need to do so before opening it.*
2 Only when baggage failed to pass the x-ray test was it subjected to
visual search.
3“Q. Allright. Now, what, if anything, did you say to the male that
was carrying thig green suitcase?
A. I took ‘ee bag over to the end of the belt and I asked the male
if I could open it up. I had to check it, and he asked me why I had to
open it and he said there wasn’t anything in it, and I told him that it
22a
Neither he nor appellant, who was present throughout the
exchange, objected. The airline agent was fully justified in
assuming she had the consent of both. We think this consti-
tutes consent-in-fact voluntarily given.
Appellant further objects that she could not be bound by
her companion’s consent to the search, claiming that the cases
which upheld third-party consent all involved absentee defen-
dants. To refute this proposition, one need look no further
than the leading case appellant cites, United States v. Matlock,
415 U.S. 164 (1974). There, the defendant was arrested in
the yard of the house where he was staying. The officers did
not ask his consent to search the house. They went to the
door and obtained permission to search from a woman who
was living there with him. The Court looked not to the
defendant’s presence or absence but to whether or not the
third party “possessed common authority over or other suffi-
cient relationship to the premises or effects sought to be
— 415 U.S. at 171. Common authority, the Court
said,
rests . . . on mutual use of the property by persons gen-
erally having joint access or control for most purposes, so
that it is reasonable to recognize that any of the co-
inhabitants has the right to permit the inspection in his
own right and that the others have assumed the risk
that one of their number might permit the common area
to be searched.
415 U.S. at 171 n.7. Applying this language to the case
before us, we find that appellant granted her companion suffi-
cient control over the suitcase so that it is reasonable to con-
clude that she assumed the risk that he might permit it to be
searched at the airport check point. Additionally, the pre-
ponderance of the evidence would warrant a finding that
was necessary to tell what was inside because I couldn’t read the x-ray
machine, and he didn’t say anything, so I opened up the bag.
Q. Where was the female during this period of time?
A. Right beside him.”
23a
appellant was acting as a courier and that her companion was
in full charge of the boarding operation and gave effective
consent on her behalf.
The Stop and Search of the Automobile
in San Diego was Valid
Appellant next complains that there was no probable cause
for the stop and search of the car, for the search of the green
suitcase in the trunk of the car, or for the arrest of appellant
and her companions, all of which were accomplished without
warrants. She further argues that Welsh’s consent to search
the car did not give the police the right to search the green
suitcase. We have concluded that, upon the totality of the
circumstances in this case, there was probable cause for the
warrantless stop and search of the car. Sufficient basis for
the warrantless arrests arose upon the finding of contraband
in the car. We do not reach the question of consent since
the probable cause to search encompassed a search of the
suitcase.
A search that is warrantless is nevertheless valid if the offi-
cers have probable cause to believe that the object of the
search contains contraband and there exists the exigent circum-
stance that it is “threatened with imminent removal or destruc-
tion.” Hernandez v. United States, 353 F.2d 624, 627 (9th
Cir. 1965), cert. denied, 384 U.S. 1008 (1966). We find that
the officers here had probable cause to believe that the car,
and the suitcase being transported therein, contained contra-
band. In arriving at this conclusion, we have considered all
the relevant facts known to the officers, as set forth above,
and all the reasonable inferences that could be drawn from
these facts by the officers. Appellant analyzes each bit of
information the officers had, expounding on the tenuous nature
of some and fashioning an innocent fabric for others. “Un-
questionably, no one item of the government's evidence, con-
sidered in solation, would have been sufficient . . .” to estab-
24a
lish probable cause. United States v. Patterson, 492 F.2d 995,
997 (9th Cir. 1974). However, even assuming that all these
facts could be given some explanation consistent with innocent
behavior, which is difficult to assume here, there nevertheless
came a time at which
[t]he succession of superficially innocent events had pro-
ceeded to the point where a prudent man could say to
himself that an innocent course of conduct was substan-
tially less likely than a criminal one.
Patterson, supra, 492 F.2d at 997. See United States v. Martin,
509 F.2d 1211 (9th Cir. 1975). “A search based upon [the]
concurrence [of the events here] would not likely invade the
privacy of an innocent person.” Hernandez, supra, 353 F.2d
at 627.
The items to be searched, the car and the suitcase, were
certainly “threatened with imminent removal.” Appellant and
her companions drove away from the motel “at a fairly fast
rate of speed” and were headed north out of San Diego on an
interstate highway. Since there was probable cause to believe
that the car contained contraband, these facts fit the “automo-
bile exception” to the requirement of a search warrant. Cham-
bers v. Maroney, 399 U.S. 42 (1970) and cases cited therein;
Carroll v. United States, 267 U.S. 132 (1925).
Appellant argues that the exceptional circumstances rule is
not applicable because the officers had time to obtain a war-
rant and did not do so. The burden rests on the government
to prove that it was not practical to secure a warrant before
the car was stopped. United States v. Jeffers, 342 U.S. 48
(1951); Hernandez v. United States, 353 F.2d 624 (9th Cir.
1965). However, appellant errs in suggesting that the officers
were required to begin seeking a warrant at 11:30 a.m. when
the car crossed the border into Mexico. The officers may well
have thought that there was insufficient probable cause to
support a warrant until the car returned from Mexico. Nor
could they predict the time when or the place at which the
car would recross the border. - After the return to the motel
25a
at approximately 4:10 p.m., they had several additional indicia
of crime to lend weight to a case for probable cause: the
car had made a short trip across the border in an area with a
high incidence of contraband smuggling carrying a suitcase in
which large amounts of cash had been seen; the car had left
with the duffel bag empty and returned with it containing
_ something that caused its bottom to sag; and the persons under
surveillance were in a great rush to depart from the motel
after their return from Mexico. The fourth amendment does
not require that the government act precipitously or apply for
a warrant prematurely. The officers could properly extend
their surveillarice-in an attempt to obtain additional evidence
or to expand the reach of the dragnet to ensnare other, as yet
unknown, confederates. Moreover, the unpredictable unfold-
ing of this criminal dama clearly left the agents uncertain as to
when or where to expect narcotics to appear. Indeed, the
automobile in question had left the United States and the
agents could not be certain that it would reappear in the
Southern District of California, much less know just when to
expect it. The rapid succession of events after it reappeared,
including the ‘brief period of little over five minutes in total
spent at the motel, precluded any possibility of the agents
approaching a magistrate at that juncture. The government
has satisfied its burden of demonstrating that there was in-
sufficient time to procure a warrant.‘
Conclusion
We have examined the other grounds urged by appellant for
reversal and find them meritless. We are satisfied after ex-
amination of the entire record that appellant received a fair
trial free from prejudicial error.
The judgment of conviction is affirmed.
4 The government testimony that February 17, 1975, was a federal
holiday does not alone meet its burden, but it is probative of the time
that would have been required to obtain a warrant on that day.
26a
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 75-2696
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
vs.
MARGARET CANADA,
Defendant-Appellant.
ORDER
(Filed February 25, 1976)
Before: HUFSTEDLER and WALLACE, Circuit Judges,
and PALMIERI,° District Judge.
The panel as constituted above has voted to deny the
petition for rehearing; Judges Hufstedler and Wallace have
voted to reject the suggestion for rehearing en banc and Judge
Palmieri has recommended rejection of the same.
The full court has been advised of the suggestion for rehear-
ing en banc and no judge of the court has requested a vote
on the suggestion for rehearing en banc. Fed. R. App. P.
35(b).
The petition for rehearing is denied and the suggestion for
rehearing en banc is rejected.
* Honorable Edmund L. Palmieri, United States District Judge, South-
em District of New York, sitting by designation.
27a
SUPREME COURT OF THE UNITED STATES
No. A-771
MARGARET CANADA,
Petitioner,
vs.
UNITED STATES
ORDER EXTENDING TIME TO FILE PETITION FOR
WRIT OF CERTIORARI
Upon ConsmDERATION of the application of counsel for peti-
tioner,
It Is Onperep that the time for filing a petition for writ of
certiorari in the above-entitled cause be, and the same is here-
by, extended to and including April 23, 1976.
/s/ WILLIAM H. REHNQUIST
Associate Justice of the Supreme
Court of the United States
Dated this 8th day of March, 1976.
28a
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 75-2696
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
vs.
MARGARET CANADA,
Defendant-Appellant.
ORDER
(Filed March 16, 1976)
Before: HUFSTEDLER and WALLACE, Circuit Judges,
and PALMIERI,° District Judge.
The motion of appellant to withhold final decision until
two companion cases have been decided is denied.
* Honorable Edmund L. Palmieri, United States District Judge, South-
ern District of New York, sitting by designation.
29a
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 75-2696
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
vs.
MARGARET CANADA,
Defendant-Appellant.
ORDER
(Filed April 12, 1976)
Before: HUFSTEDLER and WALLACE, Circuit Judges,
and PALMIERI,° District Judge.
Upon due consideration, it is ordered that appellant’s motion
for stay of mandate is denied nunc pro tunc as of February
25, 1976.
* Honorable Edmund L. Palmieri, United States District Judge, South-
em District of New York, sitting by designation.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.