# Petition — Coplen v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0805%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1977 - **Citation:** 429 U.S. 1073 ## Text 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0805%3A1. Public record. Not legal advice.