Petition — Coplen v. United States

Supreme Court, U.&

Fi?reED

OCT 27 1976

MICHAEL RODAK, JR., CLERK

IN THE

SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1976

TOMMY JOE COPLEN,

Petitioner, No.

Vv >

UNITED STATES OF AMERICA,

Respondent. 76 es 5 8 6

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

FLYNN KIMERER THINNES

& DERRICK

By: Clark L. Derrick

Robert B. Hoffman

1950 First National Bank Plaza

100 West Washington Street

Phoenix, Arizona 85003

Attorneys for Petitioner

Page

EE LED s ERTL AT OTE EET Oe 1

Jurisdictional Grounds ............:cccseeeeeeeeeeeseees 2

Questions Presented for Review ................:++ 2

Constitutional Provision Involved ................. 2

Statement of the Case .............:ccccccccesseeeseeeeeees 3

Reasons for Granting the Writ ....................6 15

REISER Oe a 20

Appendix A

Opinion of the United States Court of Ap-

peals for the Ninth Circuit, of August 16,

ES NRE a een Te la

Appendix B

Order Denying Petition for Rehearing .......... lb

TABLE OF CASES

Coolidge v. New Hampshire, 403 U.S. 443, 91

S.Ct. 2022, 29 L.Ed.2d 564 (1971) ...............0. 15,16

Hill v. United States, 379 F.2d 811 (9th Cir.

TIE ssinmeinaiscsiciisssceiieshchadinaediebdtticaintoaetianshdilesiatiia tie 19

Nipp v. United States, 422 F.2d 509 (10th Cir.

1970) cert. denied 399 U.S. 913 (1971) .......... 19

Thomas v. United States, 363 F.2d 159 (9th

iy IIIT ibicenciececipnueaieak laden lh 18

United States v. Childs, 457 F.2d 173 (9th Cir.

ID snceinchlniscinessincinciadh ahaa cial 20

United States v. Cirillo, 499 F.2d 872 (2nd Cir.

1974) cert. denied 419 U.S. 1059 (1975) ........ 19

United States v. Epperson, 485 F.2d 514 (9th

Fa STEED ‘enccasenecnansesoniecnsmapuniuniinenmisiampaiindeiina 20

ii

Page

United States v. Morado, 454 F.2d 167 (5th

SN I scaleiinsuiiiilitnadinnncsiinncedatadlMasal ttre hic dialed 19

United States v. Zumpano, 436 F.2d 535, (9th

I 18

CONSTITUTIONAL PROVISIONS

Fourth Amendment to the United States Con-

SEE Sa Reet SORE RF Fol en I NN IO 2,3

STATUTES

Rule 29 (a), Federal Rules ot Criminal Proce-

i 4

Rule 33, Federal Rules of Criminal Procedure,

ETE NE 6 eg Nik t 2 Ee

21 U.S.C. § 841 (a) (1) and (D) 0.0.02... ceeeeeeeee

a ees OD seithcepiiecadshentensicnnsonensoncenievorsenens

21 U.S.C. § 960 (a) (1) and (b) «00... esecesseees

LES ede | | | | eee

nowonwnon wo -

IN THE

SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1976

TOMMY JOE COPLEN,

Petitioner, No.

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

TO THE HONORABLE, THE CHIEF JUSTICE

AND ASSOCIATE JUSTICES OF THE SUPREME

COURT OF THE UNITED STATES:

Tommy Joe Coplen, the petitioner herein, prays that

a writ of certiorari issue to review the judgment of the

United States Court of Appeals for the Ninth Circuit

entered in the above entitled case on August 16, 1976.

I. OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Ninth Circuit has not been officially reported

as of this date. A copy of the opinion is printed in

2

Appendix A hereto. A copy of the order below, denying

petitioner’s petition for a rehearing and modifying said

opinion is printed in Appendix B hereto.

Il. JURISDICTIONAL GROUNDS

The judgment of the United States Court of Appeals

for the Ninth Circuit (Appendix A, infra) was entered

on August 16, 1976. A timely motion for. rehearing was

denied on September 17, 1976 (Appendix B, infra). On

September 30, 1976, the United States Court of Ap-

peals for the Ninth Circuit entered an order dated

September 24, 1976 staying the issuance of the man-

date pending the filing, consideration and disposition

by this Honorable Court of a petition for writ of cer-

tiorari provided such petition is filed in the clerk’s

office of this Honorable Court on or before

October 27, 1976. The jurisdiction of the Supreme

Court is invoked under 28 U.S.C. § 1254 (1).

Ill. QUESTIONS PRESENTED FOR REVIEW

A. Were warrantless visual intrusions into petition-

er’s airplane ard a subsequent warrantless physical

intrusion therein and seizure of debris, a violation of

petitioner’s Fourth Amendment protections against

unreasonable searches and seizures?

B. When considering the evidence presented against

the petitioner at trial in a light most favorable to the

respondent, should petitioner’s motion for judgment of

acquittal have been granted?

IV. CONSTITUTIONAL PROVISION INVOLVED

The Fourth Amendment to the United States Con-

stitution provides:

3

“The right of the people to be secure in their per-

sons, houses, papers, and effects, against un-

reasonable searches and seizures, shall not be vio-

lated, and no Warrants shall issue, but upon

probable cause supported by Oath or affirmation,

and particulariy describing the place to be

searched, and the persons or things to be seized.”

V. STATEMENT OF THE CASE

The petitioner was charged on April 2, 1975, in a

three count indictment with conspiring to import mar-

ijuana in violation of 21 U.S.C., § 952 (a) and 960 (a)

(1) and (b), and with conspiring to possess marijuana

with the intent to distribute the same in violation of

21 U.S.C., § 841 (a) (1) and (b); with the illegal impor-

tation of marijuana in violation of 21 U.S.C., § 952 (a)

and 960 (a) (1) and (b); and with the possession of

marijuana with the intent to distribute the same in

violation of 21 U.S.C., § 841 (a) (1) and (b). See Tran-

script of Record on Appeal, hereinafter cited as AR,

at 29.

The petitioner Coplen raised a pretrial motion to

suppress marijuana debris seized from his aircraft on

February 20 and 21, 1975, alleging a violation of the

Fourth Amendment guaranty against unreasonable

searches and seizures. See AR at 50, 120. Shortly prior

thereto, codefendant McKittrick filed a motion to

suppress the five hundred pounds of marijuana seized

from his vehicle, alleging the same to have been a war-

rantless arrest and seizure in violation of the Fourth

Amendment to the United States Constitution. This

motion was joined in by Petitioner Coplen on June 5,

1975, AR at 53, and by defendant Valenzuela on June

11, 1975, AR at 55. A hearing on the joint motions to

suppress was heard by the District Court, the Honor-

4

able Carl A. Muecke presiding, on June 7, 1975, June

8, 1975, June 11, 1975, and October 10, 1975. See Re-

porter’s Transcript of Proceedings on Motions to

Suppress, Volume A, hereinafter referred to as MS.

Following the taking of testimony and the final argu-

ments of counsel, the court denied the defendants’

joint motions to suppress both the marijuana debris

seized from the aircraft belonging to Coplen and the

five hundred pounds of marijuana obtained as a result

of the arrest of McKittrick and the subsequent search

of his vehicle. MS at 377-78.

The matter was tried to a jury commencing on Octo-

ber 21, 1975. AR at 163. Following the District Court’s

denial of defendant Coplen’s motion for judgment of

acquittal raised pursuant to Rule 29 (a), Federal Rules

of Crimina) Procedures, 18, U.S.C., and the submission

of ali evidence to the jury for its deliberation, a verdict

of guilty on all counts of the indictment was returned

against all three codefendants on October 23, 1975. AR

at 244-46. Subsequently, defendant Coplen filed a

motion for new trial pursuant to Rule 33 of the Fed-

eral Rules of Criminal Procedure, 18 U.S.C., reurging

his contention that the District Court erred both in

denying his pretrial motion to suppress and his motion

for judgment of acquittal submitted at the close of the

government’s case. AR at 248. On November 24, 1975,

the District Court denied Coplen’s motion for new

trial and entered its order of judgment and commit-

ment, imposing a sentence of five (5) years on each

count of the indictment, the sentences to run concur-

rently; to be followed thereafter by a special parole

term of three (3) years. Additionally, defendant

Coplen was ordered to pay a fine of five hundred dol-

5

lars ($500.00) for each of the three (3) counts of the

indictment. AR at 259.

The Evidence

The salient facts adduced at the evidentiary hearing

on petitioner Coplen’s motion to suppress the debris

seized from his aircraft logically commence with the

United States Customs agent Kontrabecki’s visual

searches of Coplen’s aircraft while parked and tied

down at Freeway Airport in Tucson, Arizona. As the

transcript reveals, Kontrabecki, consistent with an as-

signment to conduct surveillance of airports in the

Tucson and Phoenix areas, peered into the window of

an aircraft bearing registration number NW9286W

(hereinafter referred to as 86W) on November 5, 1974,

for the sole purpose of observing marijuana debris and

gathering evidence of smuggling. MS at 5-6, 48, 50. As

luck would have it, he spied “... marijuana debris on

the seats and floor of the aircraft.” MS at 7.

When questioned concerning his authority for peer-

ing in the windows of private aircraft, it was the

agent’s testimony that he was present at the airport in

the same capacity as any other private citizen who

comes upon public property. MS at 51.' Following

Kontrabecki’s initial visual search of the aircraft, a

registration check was requested from the customs

communication sector which revealed the names of the

' Subsequently, Kontrabecki indicated that he did not know

whether the airport property was public or private. MS at 57.

Further testimony elicited at the hearing on July 8, 1975, revealed

the existence of two signs at Freeway Airport which specifically

notified those walking onto the flight line at the executive ter-

minal that the aircraft ramp is an area restricted by federal

aviation regulation. See MS at 188.

6

defendant, Thomas Coplen, and a Verne Olsen as co-

owners. MS at 13. Additionally, it was Kontrabecki’s

testimony that he was apprised at that time that the

Drug Enforcement Administration (DEA) in-Tucson

was investigating Coplen for possible narcotics smug-

gling charges. MS at 13-14.

After November 5, 1974, the record reveals that Kon-

trabecki conducted at least seven or eight additional

visual searches of 86W but was never again able to

observe any evidence whatsoever of marijuana debris

or smuggling activity during this period of time. MS at

18,7 19,° 42-43.

Following the commencement of government surveil-

lance of Coplen’s activities on January 2, 1975, MS at

15, it was further adduced at the hearing on the mo-

tion to suppress that Gerald Young, customs patrol

officer, was requested to investigate the activities of

Coplen and his two codefendants on February 20,

1975. He received instructions to launch an aircraft for

the purpose of assisting a ground surveillance crew and

observing the activities of Valenzuela and McKittrick

in an area immediately south of Arizona City. MS at

130-31. After spending some fifteen minutes airborne

over this area and searching unsuccessfully for Co-

plen’s aircraft or any other aircraft, MS at 144, Young

was advised by radio communication to head for Sky

Harbor Airport in Phoenix to look for 86W and “...

Kontrabecki specifically recalied peering into the window of

86W on February 12, 1975, at Sky Harbor Airport in Phoenix,

and being unsuccessful in uncovering any evidence of marijuana

or any other indicia of smuggling.

On February 18, 1975, another visual search of 86W at Free-

way Airport proved abortive.

7

for marijuana and marijuana debris and contraband

..” which might be contained therein. MS e* 133.

Indeed, this was the sole purpose testified to by Young

for proceeding to the airport in Phoenix. MS at 155-

56.

Upon his arrival at Sky Harbor just prior to 10:15

p.m. on February 20, 1975. Young deplaned his air-

craft, proceeded to the parked 86W, peered through a

window and observed marijuana debris on the floor

and under the seats. MS at 133-34. Having subse-

quently felt the engine and determined that it was

warm, he then radioed his observations to other mem-

bers of the surveillance team. MS at 133, 159. At this

point, Young seized the aircraft. MS at 328. Surveil-

lance was then set up to await the return of the pilot.

MS at 143.

Young and his co-pilot then proceeded to Sky Har-

bor terminal in an attempt to ascertain Coplen’s

whereabouts. They immediately learned from Donald

Clark, a refueling employee on duty at Sky Harbor,

that he had received a refueling order from Coplen at

9:46 p.m., MS at 175-76, and that Coplen had at that

time informed Mr. Clark that he was going to remain

in Phoenix overnight.‘ MS at 185. Once Clark com-

municated the entirety of this information to Agent

Young, MS at 186, the customs officials requested that

Clark delay fueling of the aircraft. MS at 178. The re-

cord further reflects that the aircraft was tied down by

chains that were anchored in the ground and fastened

to the wings. MS at 187.

* Indeed, the agents, by their own testimony, had every reason

to believe that the pilot of the aircraft would be spending the

night at the Sheraton Inn in Phoenix. MS at 322-23, 327.

8

Following the discussions among the customs offi-

cials and Clark, Young and his co-pilot remained with

the aircraft until 1:30 a.m. when the identification

team arrived. MS at 161,318. Having never considered

obtaining a search warrant for the aircraft, MS at 332-

33, the agents, with the help of a lock-pick set, entered

the aircraft after it had been dusted for fingerprints.

MS at 327-28, 332. Following this search, marijuana

debris, which eventually formed the basis of Coplen’s

motion to suppress, was taken from the floor of the

aircraft. MS at 323-26.

The evidence elicited at the time of trial substan-

tially duplicates much of the testimony presented at

the hearing on defendants’ joint motions to suppress.

Therefo.e, where there is no substantial variance be-

tween the two, it is petitioner’s intention to merely

rely upon the facts set forth above without specifically

reiterating them a second time.

Kontrabecki testified at the time of trial that on

January 2, 1975, following his visual search of 86W

and the registration check through communications,

he observed a second aircraft at Freeway Airport

which bore registration numoer N3988G (hereinafter

referred to as 88G). See Transcript of Trial Proceed-

ings, hereinafter cited at TR, Vol. I at 7. Although no

testimony was presented at the time of trial concern-

_ing the registration and ownership of 88G Kontrabecki

testified that on January 5, 1975, he observed Coplen

climb in 88G at Freeway Airport and engage in several

gy

short field landings and takeoffs.’ TR, Vol. I at 13.

Following the next several weeks during which Kon-

trabecki persisted in visually examining 86W and 88G

unsuccessfully for marijuana debris, he was notified on

February 20, 1975, by Customs Agent Harper, that he,

Harper, had observed Valenzuela driving a pickup truck

at approximately 5:00 p.m. in the Tucson area. TR, Vol.

I at 19, 20, 56, 58. Following Harper’s discontinuance of

his surveillance of Valenzuela,° Kontrabecki picked

up the ground surveillance at approximately 5:00 p.m.

or a few minutes thereafter. TR. Vol. I at 12. Shortly

after 5:00 p.m. and the resumption of the surveillance

by Kontrabecki, the latter testified that he observed

Valenzuela pick up Coplen at a convenience market

and proceed to Freeway Airport where Valenzuela left

Coplen at 5:40 p.m. TR, Vol. I at 40. Coplen was then

observed to climb inside 86W and commence prepara-

tions for takeoff as Valenzuela departed the airport in

his pickup. TR. Vol. I at 21-22. Following 86W’s take-

off at 5:45 p.m., TR. Vol. I at 40, Kontrabecki

requested customs pilot Parthen to launch a surveil-

lance aircraft. TR. Vol I at 23.

* Warren Parthen, a United States Customs pilot who partici-

pated in the investigation of this case, testified that these so-

called short field landing and takeoffs constitute normal flight

practice for one undertaking early training. TR, Vol. I at 99.

* Agent Harper testified that prior to the discontinuance of his

visual ground surveillance that he observed Valenzuela drive a

pickup truck to an apartment complex where McKittrick lived

and departed that complex shortly thereafter with a second uni-

dentified person. TR at 57. Harper’s further testimony was that

he was never able to identify another person with Valenzuela be-

fore he terminated surveillance. TR at 59-60.

10

Once Parthen became airborne, Kontrabecki fol-

lowed Valenzuela to a Tucson taco stand where he met

McKittrick who arrived shortly thereafter in a second

vehicle. TR. Vol. I at 24-25. As Parthen proceeded to

follow 86W once it had become airborne, Kontrabecki

was simultaneously maintaining surveillance on Valen-

zuela and McKittrick who proceeded to a gas station,

briefly used the pay telephone, and then drove to-

gether in their separate vehicles to Interstate Route 10

(1-10), northbound toward Casa Grande. TR. Vol. I at

26. At this juncture, Kontrabecki requested and re-

ceived aerial surveillance from a second aircraft

piloted by John Redden and equipped with an observ-

er, Scott Eshelman. TR. Vol. I at 27. Kontrabecki

maintained surveillance of the two vehicles until they

exited I-10 at Toltec at approximately 7:25 p.m., at

which point a flat tire forced him to discontinue his

investigation. TR. Vol. I at 28.

According to Eshelman’s testimony, he and Redden

joined the surveillance from the air in the area of the

Toltec intersection near Cox Ranch at approximately

8:00 p.m. TR. Vol. I at 105,118. The record then re-

veals that the two observed Valenzuela and

McKittrick proceed in their respective vehicles to the

Cox Ranch area where they turned off their lights. TR.

Vol. I at 108. Over an hour later, Eshelman testified

that he then observed the two vehicles facing each

other with their light on, TR. Vol. I at 111, and that

some two to three minutes prior to this he had re-

ceived notification from the ground crew that the noise

of a low-flying airplane had been heard in the vicinity

at approximately 9:15 p.m. TR. Vol. I at 113-114; Vol.

II at 214, 247-48. Eshelman then added that after he

11

observed the lights of the vehicles come on, that he

saw an aircraft landing light illuminating the area for

approximately thirty seconds. TR. Vol. I at 114-115.

This was thought to have occurred at 9:12 or 9:13 p.m.

TR. Vol. I at 55. Upon further examination however,

Eshelman admitted that the written reports of those

to whom he had reported this observation (Harper and

Kontrabecki) contained no mention of any aircraft

landing light on the evening in question. TR. Vol. I at

120-21; Vol. II at 141, 146. Consistently, William

Loughridge, a member of the ground crew, testified

that no landing lights were ever seen on the aircraft

that he heard or on any other aircraft on the night in

question. TR. Vol. II at 249-50, 251, 254, 260, 290-91.

Shortly thereafter, the third customs aircraft of the

evening was summoned to the Cox Ranch area, TR.

Vol. I at 115, now equipped with an infrared system

with the admitted capability of detecting the presence

of an airplane whether on the ground or in the air. TR.

Vol. II at 182. Although the pilot of this third aircraft

advised Eshelman that he was able to observe the two

vehicles on the ground approximately one-half mile

west of Cox Ranch at 9:25 p.m., TR. Vol. I at 116; Vol.

II at 158, 167, at no time did anyone either on the

ground or in the air, ever see any private aircraft in

the vicinity. TR. Vol. II at 144, 160, 181-82.

Having unsuccessfully combed the Arizona City area

for the rendezvous aircraft, Young flew to Sky Harbor

Airport where he landed his aircraft at approximately

10:15 p.m. As previously indicated, he then observed

aircraft 86W parked and tied down without a pilot,

approached the plane, peered in one of the windows,

and observed marijuana debris on the floor behind the

+

12

seats. It was after this that he then felt the engine of

86W and determined that it was warm. TR. Vol. II at

162. It should be recalled that after this visual search

Young was informed by Donald Clark of Coplen’s re-

quest for fuel at 9:46 p.m., TR. Vol. II at 191, and that

Agent Loughridge had received a telephone call from

Larpy [sic Hjerpe] at 9:45 p.m. wherein he communi-

cated to Loughridge the fact that 86W was parked at

Sky Harbor Airport. TR. Vol. II at 230. The aircraft

was then seized and searched in a manner accurately

depicted by the testimony set forth above which was

elicited at the time of the hearing on the joint motions

to suppress.

Finally, pilot Parthen testified that simultaneous

with the occurrence of the aforementioned events, and

during the course of his surveillance of 86W which

began at Freeway Airport in Tucson, he observed the

aircraft take off at 5:45 p.m. and eventually head

southbound across the Mexican border at 6:23 p.m.

TR. Vol. I at 83. Although Parthen was unable to iden-

tify the pilot of the subject aircraft, he continued the

surveillance of 86W to a point approximately twenty

miles southeast of Caborca where he lost visual contact

with the aircraft at 7:15 p.m. (TR. Vol. I at 84) at an

altitude of approximately five thousand feet. TR. Vol.

[ at 86.

Although Parthen testified that the area over which

he lost contact with 86W was one “commonly used to

pick up marijuana,” TR. Vol. I at 86, and that he fur-

ther observed two vehicles with flashing lights leave

the area below in a northbound direction, TR. Vol. I at

87, he not only did not observe the aircraft land in

Mexico, but neither he nor anyone else ever saw 86W

13

again until approximately 10:00 p.m. that evening at

Sky Harbor Airport in Phoenix. TR. Vol. I at 98.

Although evidence elicited at the time of trial dem-

onstrated the absence of any record of 86W registering

a crossing into the United States from Mexico on

February 20, 1975, TR. Vol. II at 204-205, testimony

from Mr. Walker, Assistant Director of Investigation

for the Immigration Service, further failed to demon-

strate that the same constituted a violation of either a

customs or an immigration service regulation. TR. Vol.

II at 206-207.

Following the close of the government’s case-in-chief

on October 23, 1975, petitioner Coplen’s motion for

judgment of acquittal alleging insufficiency of the evi-

dence was denied. TR. Vol. III at 350. Immediately

prior to the court’s ruling, the following colloquy con-

cerning the arrival of 86W at Sky Harbor Airport took

place between the court and counsel:

“THE COURT: — Yes, all right, as I remember

it, and I remember it well, it is correct and I have

it in my notes that there was testimony by Agent

Loughridge that he had a radio, received a radio

message from Harper that around 9:45 the suspect

plane had landed at Sky Harbor so that is there as

far as I’m concerned. Now as far as the fueling,

they got there at 10:15, saw that debris, went and

talked to the refueling man and he had already

received a refueling order, so we know that the

order was sometime between 9:45 when the plane

landed and 10:15; and he testified concerning

some time right after 10:15 or 10:30 or whatever

time it took to go from the plane into talking with

the refueling man —

14

“MR. DRAKE: — If Your Honor please, now I

don’t disagree with the proposition that has been

brought forward or stated by the defendant for

viewing the evidence on a motion for acquittal,

but I feel that as —

“THE COURT: Well, I don’t think you have to

do any more talking, I’ve heard enough —

. “MR. FLYNN: — Excuse me, Your Honor, only

if the Court please in relation to the evidence just

recited by the Court, the evidence is correct in

relation to that time that he heard, that Agent

Harper told him that the plane had landed at

9:45, not that the plane had landed but at 9:45 he

was talking to Agent Harper, and in the motion to

suppress the evidence was clear that he was the

agent who recalled or who testified as to a call to

the tower and as to the time but Agent Lough-

ridge did not testify that Agent Harper said it was

9:45 that the plane landed at Sky Harbor.

“THE COURT: Yes he did.

“MR. FLYNN: But that at 9:45 he talked to

Agent Harper and said that the plane had landed

but not when.

“THE COURT: Yes he did.

“MR. FLYNN: I think there’s a substantial dif-

ference if the Court please as to the time that the

plane arrived.

“THE COURT: Well I think that’s a good thing

that you can argue to the jury but I’ll deny your

motion of acquittal. Do you gentlemen have any-

thing else to present? Do you have any further

testimony?” TR. Vol. III at 348-50.

15

After a brief presentation of the defendant’s case-in-

chief, the jury began its deliberations at 3:30 p.m., re-

turning with a verdict of guilty on all counts as to all

of the defendants several hours later that same day.

AR at 244-46.

VI. REASONS FOR GRANTING THE WRIT

A. With respect to Question A, Part III hereof, the

writ should be granted because the Court of Appeals

has decided a federal question in a way in conflict with

applicable decisions of this Honorable Court.

In order to justify a search as falling within the ex-

ception which has come to be referred to as the “plain

view” doctrine, it is clear that there must exist some

prior justification for the initial intrusion. Thus, the

cases are quite clear in their requirement that, absent

a search warrant or the existence of a search incident

to a lawful arrest, the discovery of the evidence sought

to be utilized by the government be an inadvertent

and coincidental consequence of the prior unrelated,

yet legitimate, intrusion. Coolidge v. New Hampshire,

403 U.S. 443, 91 S.Ct. 2022, 29 L. Ed.2d 564

(1971)... Moreover, even assuming a search can be

properly viewed as legitimately inadvertent within the

meaning of the exception, the “plain view” doctrine

_.. The initial intrusion may, of course, be legitimated not

by a warrant but by one of the exceptions to the warrant require-

ment, such as hot pursuit or search incident to lawful arrest. But

to extend the scope of such an intrusion to the seizure of ob-

jects—not contraband nor stolen nor dangerous in

themselves—which the police know in advance they will find in

plain view and intend to seize, would fly in the face of the basic

rule that no amount of probable cause can justify a warrantless

seizure.” 403 U.S. at 471.

16

requires the use of a warrant or the existence of exi-

gent circumstances justifying a warrantless search.

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

In the instant case, the testimony elicited at the time

of trial and referred to above clearly establishes the

absence of both the elements of inadvertence and exi-

gent circumstances. Because the visual intrusions

testified to below involved nothing more than visual

searches by the agents in an attempt to uncover in-

criminating evidence of narcotics smuggling, it cannot

honestly be argued that the same was accidentally

uncovered and wholly inadvertent to a prior legitimate

purpose. Nor can it be said that any showing was made

of the existence of exigent circumstances justifying the

warrantless intrusion into the aircraft following the

visual observations. To the contrary, as previously in-

dicated, the government agents reasonably believed

that the aircraft would remain immobile and unmo-

lested throughout the remainder of the night and that

its suspected pilot, Coplen, would not return until

morning. Therefore, in view of the existence of a spe-

cific governmental intent to discover evidence of crime

in this case, the government’s subsequent contention

that the same was justified as falling within the “plain

view” exception represents nothing more than a boots-

trap argument to justify its intrusion into Coplen’s

zone of reasonably expected privacy, and the Court of

Appeals decision upholding the search is contrary to

Coolidge v. New Hampshire, supra.

B. With respect to Question B in Part IV, supra, the

writ should be granted because the Court of Appeals

decision has so far sanctioned a lower court’s depar-

ture from the accepted and usual course of judicial

17

proceeding as to call for an exercise of this Court’s

supervisory power.

The Court of Appeals states in its opinion (Appendix

A, infra, p.9a) that during Coplen’s flight he flew with-

out filing the required flight plan and that he failed to

clear customs after landing. Nowhere in the record is

there an indication of any evidence elicited at the time

of trial demonstrating the existence of a requirement

that a flight plan be filed. In this regard, petitioner

herein would respectfully submit that his failure to

engage in activity which is in no way required of him

should not be allowed to form the basis of evidence

somehow demonstrating a consciousness of guilt. In-

deed, testimony from Mr. Walker, Assistant Director

of Investigation for the Phoenix Immigration Service,

revealed that Coplen’s failure to register his crossing

into the United States did not constitute a violation of

any immigration service regulation unless the pilot had

actually landed on foreign soil prior to his flight into

the United States, TR. Vol. II at 206-07.

Next, although the record does support the Court of

Appeals statement that the sounds of a low-flying air-

craft were heard in the Silver Bell Estates area, it is

respectfully submitted that the inference that that

sound emanated from Cc “len’s aircraft is indeed mere

speculation. Such an inference first requires the as-

sumption that the noise came from a private aircraft

and that that private aircraft was 86W. Agein, it would

appear that the Court of Appeals has overlooked the

fact that no evidence was ever adduced at the time of

trial of Coplen’s actual arrival time at Sky Harbor

Airport on the night in question. Rather, the evidence

merely demonstrates that Coplen filled out a fuel ser-

18

vice request at 9:46 p.m. TR. Vol. II at 186-89. Thus, it

is equally as plausible to assume that Coplen may well

have landed at Sky Harbor prior to 9:00 p.m. on

February 20, 1975. This being the case, it then be-

comes impossible to infer that the sounds of low-flying

aircraft heard in the Silver Bell Estates area at 9:15

p.m. (TR. Vol. I at 113-14, and Vol. II at 214) came

from Coplen’s aircraft. In this regard, appellant would

reiterate the well-established principle that evidence

susceptible of two constructions or inferences, each of

which appears to be reasonable and one of which

points to the guilt of the defendant and the other to

his innocence, requires the adoption of the inference or

construction admitting of the defendant’s innocence

and rejecting that supporting his guilt. United States

v. Zumpano, 436 F.2d 535, 538 (9th Cir. 1970);

Thomas v. United States, 363 F.2d 159, 162, n.7 (9th

Cir. 1966). Although the Court of Appeals then con-

cludes its analysis by pointing to the fact that

marijuana debris was found shortly thereafter in Co-

plen’s airplane, it fails to take account of the fact that

this was some sixty to eighty miles from the location of

the other two alleged conspirators and the five

hundred pounds of contraband which they were found

to have actually possessed.

Finally, the Court of Appeals in its opinion originally

stated that Coplen prior to the day in question

(February 20, 1975), “. . . was seen with his codefen-

dants on many occasions.” (Appendix A, p.9a, ll 14-15)

This language was corrected by the September 17,

1976 order (Appendix B) to read “was seen with code-

fendant Valenzuela prior to the day of arrest”, when it

was pointed out in the petition for rehearing that

19

nowhere in the entire three volumes of transcripts con-

tained as part of the record on appeal, was there any

evidence placing Coplen in the company of his code-

fendant McKettrick prior to the day in question, and

that, in fact, the only time prior to February 20, 1975,

that Coplen was seen with either of the alleged con-

spirators was on February 12, 1975, when he was seen

with Valenzuela in the waiting room of Sawyer Avia-

tion Building at Sky Harbor Airport. In spite of the

correction of the opinion in this regard, the Court of

Appeals appears to have drifted from the well-

established principle of criminal law of conspiracy that

mere association with other alleged conspirators is in-

sufficient to establish another person as a member of a

conspiracy. United States v. Cirillo, 499 F.2d 872 (2d

Cir. 1974), cert. denied 419 U.S. 1056 (1975); United

States v. Morado,-454 F.2d 167 (5th Cir. 1972): Nipp

v. United States, 422 F.2d 509 (10th Cir. 1970), cert.

denied 399 U.S. 913 (1971); Hill v. United States, 379

F.2d 811 (9th Cir. 1967).

On the basis of the foregoing, it is respectfully sub-

mitted that the facts as set forth in the record below

represent too thin a reed upon which appellant’s con-

victions should be allowed to rest. Not only has the

Court of Appeals overlooked and misapprehended

those facts in affirming the lower court, but its deci-

sion of August 16th as amended as it now stands is at

odds with that Court’s previous judicial standards re-

lating to that degree of evidence upon which jurors

could reasonably arrive at the conclusion that the de-

fendant was guilty of the offenses beyond a reasonable

20

doubt. See, e.g., United States v. Epperson, 485 F.2d

514 (9th Cir. 1973); United States v. Childs, 457 F.2d

173 (9th Cir. 1972).

VII. CONCLUSION |

For the foregoing reasons this petition for a writ of

certiorari should be granted.

Respectfully submitted,

FLYNN KIMERER THINNES &

DERRICK

By

Robert B. Hoffman

Attorneys for Petitioner

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, |

Plaintiff-Appellee,

vs. No. 75-3633

TOMMY JOE COPLEN,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VS. ®

+ No. 75-3739

HENRY VALENTIN VALENZUELA.

Defendant-Appellant. |

UNITED STATES OF AMERICA, |

Plaintiff-Appellee,

vs. No. 75-3663

JOHN BALMER McKittrick,

Defendant-Appellant.. OPINION

{August 16, 1976]

Appeal from the United States District Court

for the District of Arizona

Before: BARNES, KENNEDY, Circuit Judges, and

EAST,” District Judge

Honorable William G. East, Senior District Judge, District

of Oregon, sitting by designation.

2a

BARNES, Senior Circuit Judge:

On November 5, 1974, United States Customs Agent

Kontrabecki conducted a routine investigation to dis-

cover smuggling activity at Freeway Airport, Tucson,

Arizona. During this investigation, he discovered mari-

juana debris in an aircraft registered to Tommy Joe

Coplen. Thereafter, Coplen and his aircraft were kept

under surveillance by federal authorities.

On February 20, 1975, defendant Valenzuela (under

observation) drove Coplen to Freeway Airport. There-

after, Coplen departed in his plane (under obser-

vation) and flew into Mexico, south of Caborca, Mexi-

co, located approximately sixty miles from the

American border. Coplen departed for this flight with-

out filing the required flight plan. He also failed to

activate the aircraft navigation lights when it became

dark, at approximately 6:30 to 7:15 p.m.

After dropping Coplen off at the airport, Valenzuela

met defendant McKittrick at a restaurant. They then

entered their separate vehicles and left Tucson, head-

ing north on Interstate 10 (under observation). Both

vehicles left Interstate 10 at the Toltec Road Exit and

proceeded south towards Arizona City, finally entering

Silver Bell Estates, a known narcotics drop point.

Once into Silver Bell Estates, the vehicles extinguished

their headlights.

Approximately an hour later aerial surveillance ob-

served the headlights of two stationary vehicles facing

each other approximately one-half mile apart. Al-

though Customs Air Officer Eschelman was unable to

testify that these vehicles were the same ones he had

been following earlier, he stated that no other vehicles

3a

were detected to have entered the area. He further tes-

tified that the headlights appeared to have been

lighting up a runway located on a dry lake bed.

Shortly before the vehicular headlights appeared,

ground surveillance units heard an aircraft but were

unable to detect its location since it was operating

without navigational lights. Shortly after the vehicular

headlights were turned on, aerial surveillance observed

an aircraft in the vicinity of the lights. Shortly there-

after, the vehicles extinguished their headlights.

At 9:25 p.m., approximately fifteen minutes after the

vehicle headlights were turned off, aerial surveillance

units using infrared equipment detected two vehicles

leaving the dry lake bed area. Ground surveil-

lance units observed the vehicles leaving the area,

heading toward Interstate 10, and entering the Inter-

state northbound to Phoenix. Agent Seaver testified

that the curtains on the camper portion of one of the

vehicles were closed on departure, while they had been

opened when the vehicles arrived at Silver Bell Es-

tates.

While ground surveillance units were returning to

Interstate 10, aerial surveillance units proceeded to

Sky Harbor Airport in Phoenix. Upon arrival, the offi-

cers observed that Coplen’s aircraft had landed

without clearing customs and that Coplen was not

present. Officer Young approached the aircraft and

with the aid of a flashlight looked into the back win-

dow on the pilot’s side. He saw marijuana debris in the

aircraft He then felt that the engine was warm.

Thereupon, the officer advised the surveillance units

of his information.

4a

The vehicle driven by Valenzuela left Interstate 10

and was stopped by agents. A search of the camper

revealed no contraband. This information was relayed

to the agents following McKittrick’s vehicle who then

stopped him. A search of McKittrick’s camper re-

vealed 500 pounds of marijuana. Thereupon, both

Valenzuela and McKittrick were arrested. Attempts to

locate Coplen, however, proved unsuccessful. After

waiting until the identification team had taken finger-

prints off the plane, the agents, with the aid of a lock-

pick set, entered the aircraft and seized the marijuana

debris. Coplen was arrested the following morning.

The three defendants were charged as follows: Count

I—all three defendants were charged with conspiracy

to import 500 pounds of marijuana; count II—Coplen

alone was charged with importation of the same five

hundred pounds of marijuana; count II[]—all three

defendants were charged with possession with intent

to distribute the same 500 pounds. The defendants

moved to suppress the marijuana debris taken from

Coplen’s airplane and the 500 pounds of marijuana

found in McKittrick’s vehicle, alleging that their

fourth amendment rights had been violated. Each mo-

tion was denied. After trial, all three defendants were

convicted on counts I and III and Coplen alone on

count II.

The first issue that we consider on appeal is whether

appellants’ fourth amendment rights were violated

when the federal agents searched Coplen’s aircraft and

seized the marijuana debris. The uncontroverted evi-

dence is that Agent Young discovered the marijuana

debris when he looked into the aircraft with the aid of

a flashlight. Subsequently, the agents, with the aid of a

5a

lock-pick set, entered the airplane and seized the mari-

juana debris.

Our first inquiry is whether Agent Young’s conduct

in looking into the airplane constituted a search. The

law is clear that it was not. It is well settled that visual

observation by a law enforcement officer situated in a

place where he has a right to be is not a search within

the fom of the fourth amendment. See United

States vs. Connor, 478 F.2d 1320, 1323 (7th Cir. 1973);

United States v. Hanahan, 442 F.2d 649, 653 (7th Cir.

1971); United States v. Freeman, 426 F.2d 1351, 1353

(9th Cir. 1970); Ponce v. Craven, 409 F.2d 621, 625

(9th Cir. 1969). This Court, however, must also deter-

mine whether the looking into the aircraft violated

appellants’ reasonable expectation of privacy. If an

individual knowingly exposes his conduct to public

view, his reliance upon privacy is unreasonable and

unjustified. Katz v. United States, 389 U.S. 347, 351-

52 (1967); see United States v. Santana, US. _,

44 U.S.L.W. 4970, 4971-72 (1976). In Ponce v. Craven,

supra, police officers, while standing in a motel park-

ing lot, witnessed illegal activity by looking into the

defendant’s bathroom window. In rejecting the conten-

tion that such conduct constituted a search and that

such search was illegal, this Court stated:

“Ponce’s reliance on privacy in his motel room

was not reasonable under the circumstances. If he

did not wish to be observed, he could have drawn

his blinds. The officers did not intrude upon any

reasonable expectation of privacy in this case by

observing with their eyes the activities visible

through the window... .”

6a

409 F.2d at 625; see l'nited States v. Hersh, 464 F.2d

228, 229-30 (9th Cir.), cert. denied, 409 U.S. 1008

(1972).

Similarly here, we decline to conclude that the

agent’s conduct in looking into the airplane consti-

tuted a search within the meaning of the fourth

amendment. In this case, the agent was lawfully within

the area where Coplen’s aircraft was parked. He pro-

ceeded to the aircraft and looked into the back window

which was open to the public view. The fact that the

officer was forced to use a flashlight is immaterial.

Being dark outside, it was necessary to employ such a

device. Rather, if privacy were desired here, Coplen

should have closed off the window from public view.

By failing to do so, thus permitting the agent by mere

observation to view the marijuana debris, there was no

reasonable expectation of privacy insofar as looking

into windows is concerned.

We next consider the question whether the officers,

by breaking into the plane and seizing the marijuana

debris without a search warrant, violated appellants’

fourth amendment rights. Upon viewing the marijuana

debris through the plane window, it is clear that the

agents had probable cause to search and seize the air-

craft. But, as observed by Justice Stewart in Coolidge

v. New Hampshire, 403 U.S. 443, 468 (1971), “no

amount of probable cause can justify a warrantless

search or seizure absent ‘exigent circumstances.’ ”

Thus, the essential inquiry here is whether exigent cir-

cumstances existed to justify the warrantless search

and seizure.

7a

We conclude that sufficient such exigent circum-

stances were present here. Coplen’s airplane was

parked on a runway and was “readily accessible to

anyone who might want access.” United States v.

McClain, 531 F.2d 431, 434 (9th Cir. 1976). Agents

reasonably believed that other confederates were in-

volved in the scheme. As importantly, easily destroyed

contraband was involved. Taking these factors into

account, we have a situation where an aircraft was

capable of removal and the marijuana debris also was

capable of being destroyed. Accordingly, we hold that

the search of Coplen’s airplane and the seizure of the

marijuana debris did not violate the fourth amend-

ment. See United States v. McClain, supra, 531 F.2d

at 433-35; United States v. Church, 490 F.2d 353, 354-

55 (9th Cir. 1973), cert. denied, 416 U.S. 983 (1974);

United States v. Cohn, 472 F.2d 290, 292 (9th Cir.

1973).

We next consider the second issue raised by appel-

lants, namely, that the district court erred in denying

defendant McKittrick’s motion to suppress the 500

pounds of marijuana seized from his camper. Appel-

lants argue that this search and seizure violated their

fourth amendment rights. We do not agree. The evi-

dence presented to the trial court overwhelmingly

indicates that the agents had probable cause to con-

duct the search and seizure in question. Both

Valenzuela and McKittrick were seen with Coplen on

several occasions. On the day of the alleged transac-

tion, both vehicles were seen in the Silver Bell Estate

area. Approximately an hour after McKittrick and

Valenzuela arrived at the area, agents detected the

sound of a low-flying aircraft. Shortly thereafter, ve-

8a

hicular headlights were facing each other on the dry

lake bed as though lighting up an airstrip. Shortly af-

ter the airplane had departed from the dry lake bed,

two vehicles were observed running without head-

lights. When the vehicles McKittrick and Valenzuela

were driving departed from the area, the curtains on

them were closed while they had been opened when

the vehicles entered the area. Further, Valenzuela had

driven Coplen to the airport for his flight and then

had met McKittrick before they both drove out to the

Silver Bell Estates area. Marijuana debris subse-

quently was discovered in Coplen’s aircraft and this

information was communicated to the other agents

who then stopped and searched the vehicles. With this

abundance of information, we clearly cannot hold that

the district court’s decision denying the motion to

suppress was error. See United States v. Westover,

511 F.2d 1154, 1155-56 (9th Cir.), cert. denied, 422

U.S. 1009 (1975); United States v. See, 505 F.2d 845,

855 (9th Cir. 1974), cert. denied, 420 U.S. 992

(1975).°

As a separate and distinct point on appeal, defen-

dant Coplen submits that the district court committed

reversible error by denying his motion for judginent of

acquittal. Viewing the evidence in a light most favora-

* We note that the government has not argued that the defen-

dants lack standing to contest the searches and seizures in

question. Upon examining the record, we observe that there is a

substantial issue whether all of the defendants have standing to

contest each search and seizure. It is clear, however, that at least

one defendant has standing in regard to each search and seizure.

Since we hold that the searches and seizures do not violate the

fourth amendment, we find it unnecessary to determine whether

each defendant has standing to contest each search and seizure.

9a

ble to the government, Glasser v. United States, 315

U.S. 60 (1942), Coplen argues that there was insuffi-

cient evidence to support his convictions. We disagree.

The standard we employ is whether the jurors could

reasonably arrive at their conclusions that Coplen was

guilty of the charged offenses beyond a reasonable

doubt. See United States v. Rojas, 458 F.2d 1355,

1356 (9th Cir. 1972); United States v. Nelson, 419

F.2d 1237, 1243 (9th Cir. 1969).

Applying this standard, the trial court correctly de-

nied Coplen’s motion. Coplen was seen with his

codefendants on many occasions. On the day in ques-

tion, Valenzuela had driven him to the airport.

Although none of the agents saw Coplen land in Mexi-

co, his plane was seen sixty miles inside Mexico.

During this flight, Coplen flew without filing the re-

quired flight plan and failed to clear customs after

landing. Coplen makes much of the fact that no au-

thorities saw him land in the Silver Bell Estates area.

However agents heard the sounds of a low-flying air-

craft and observed the turning on of vehicular head-

lights apparently lighting up a runway on the dry lake

bed. Furtier, marijuana debris shortly thereafter was

found in Coplen’s airplane. Viewing the evidence in a

light most favorable to the government, we conclude

that Coplen’s convictions are supported by sufficient

evidence.

As another separate and distinct point on appeal,

defendant Valenzuela argues that the district court

abused its discretion by denying his motion to sever.

In support of his motion, Valenzuela contends that he

was denied the use of exculpatory testimony of his

codefendants who refused to testify at the joint trial

10a

because they would incriminate themselves. We note

that the defendant must make some showing that the

testimony of a codefendant will be used at his trial

before the denial of a motion to sever will be held to

be an abuse of discretion. Hence, “[t]he unsupported

possibility that such testimony might be forthcoming

does not make the denial of a motion for severance

erroneous.” United States v. Bumatay, 480 F.2d 1012,

1013 (9th Cir. 1973). Further, “(t]he bare assertion

that [defendant] could not call either co-defendant as

a witness does not warrant reversal on the theory that

if he could he would have done so.” Jd. See United

States v. Larios-Montes, 500 F.2d 941, 944 (9th Cir.

1974), cert. denied, 422 U.S. 1057 (1975); United

States v. Thomas, 453 F.2d 141, 144 (9th Cir. 1971),

cert. denied, 405 U.S. 1069 (1972). Here, Valenzuela

failed to make any showing other than his mere asser-

tion that a joint trial would be prejudicial. Under the

law in this Circuit, such a showing is inadequate. Ac-

cordingly, the district court was correct in denying the

motion.

Having considered the issues raised on appeal and

finding no merit in them, the convictions are affirmed.

~ Unirep STATES OF AMERICA,

lb

APPENDIX B

IN THE UNITED STATES

COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff- Appellee,

“ No. 75-3633

Tommy Joe CopLen, |

Defendant-Appellant.

Plaintiff-Appellee,

Ve No. 75-3739

HENRY VALENTIN VALENZUELA,

Defendant-Appellant. |

UNITED STATES OF AMERICA,

Plaintiff- Appellee,

Ve No. 75-3663

JOHN BaLMER MckKirtrick,

Defendant-Appellant. ORDER

Before: BARNES and KENNEDY, Circuit Judges,

and EAST,” District Judge.

* The Honorable William G. East, Senior Judge, District of

Oregon, sitting by designation.

2b

The Opinion in the above entitled matter, filed with

this Court on August 16, 1976, is modified by striking

the words “co-defendants on many occasions”, appear-

ing in the slip opinion, page 7, lines 2 and 3, and

inserting in place thereof, “co-defendant Valenzuela

prior to the day of arrest.”

With this modification, the Petition for Rehearing is

unanimously denied by the panel.