Petition — Mitchell v. United States

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Supreme Court, U. :

FILED

NOV 1% 1976

| MICHAEL RODAK

4 IR., CLE

SS SLERK |

In the

Supreme Court of the United States

October Term, 1976

No 46-689 '

WILLIAM CHADBOURNE MITCHELL,

Petitioner,

—against—

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

ERIC M. LIEBERMAN

MICHAEL B. STANDARD

Rabinowitz, Boudin and Standard

30 East 42nd Street

New York, New York 10017

Attorneys for Petitioner

November 1976

es te Semen.

INDEX

Page

Depbebeme BROW. on cece ccc cccccccescccccessboces |

RS is ta eR eee dé dih's peeden cbicecnades es 2

Constitutional Provision Involved ...............0006: 2

FOE CPOE OPT OT ET TTT TTT or 2

PPT TT TTOTELIETTTET LOTTE 3

Reasons for Granting the Writ................0000. re

GED oho ccsccécccscccceMeccccccescuccesess 15

Appendix A: Opinion of the Court of Appeals Upon Re-

PRUNE EIED. oc ccccccecéccccesoens la

Appendix B: Opinion of the Panel of the Court of Ap-

DUE pv ccccccccececcccesesescevenes 3a

Appendix C: Judgment of the Court of Appeals Upon

SONI ED TIE cc ccc ccccccccasecs 24a

Appendix D: District Court’s Judgment.............. 26a

Appendix E: District Court’s Findings of Fact and Con-

GRIND GE BG icc ccccccccsvcecccces 28a

Table of Authorities

Cases: |

CasGwell v. Lowls, G17 US. SEB. cccccccccvcccceces 9-14

Carroll v. United States, 267 U.S. 132................. 8,12

Chambers v. Maroney, 399 U.S. 42.......... 6, 8, 12, 13, 14

’ Coolidge v. New Hampshire, 403 U.S. 443. ......... 7, 8, 12

Gouled v. United States, 255 U.S. 298 ................ 7

Texas v. White, 423 US. 67 ......ccccccccccrcccece 12, 14

United States v. Bradshaw, 490 F.2d 1097 (4th Cir.

SS 640d 60596 On bh OCR hese EO Oe 12, 13, 14

eS Tere rss eee ye rey ery Pee 11,12

United States v. Ferrara, 539 F.2d 799 (1st Cir. 1976).... 11

United States v. Frazier, 535 F.2d 1322 (8th Cir. 1975)... 11

United States v. McClain, 531 F.2d 431 (9th Cir. 1976). .12, 14

United States v. Niro, 388 F.2d 535 (1st Cir. 1968)...... 11

United States v. Rabinowitz, 339 U.S. 56.............. 9

United States v. Robinson, 533 F.2d 578 (D.C. Cir.

SOUS 606 Rede edd cabesenstecedureces 12, 13, 14

United States v. Vento, 533 F.2d 838 (3d Cir. 1976)... .. 1}

Weeks v. United States, 232 U.S. 383 ................. 15

Constitutional and Statutory Provisions:

i ede besteakes 2, 7, 88, 18

a ee. 1,5

hs cbncésesdeneeeuke CTT re TTT 5

Se Goce CE CN SGb SOO ce eeenees G4aceseee 5

I. oc i ccccccauioiiacwi ck 1

In the

Supreme Court of the United States

October Term, 1976

No. 76—

WILLIAM CHADBOURNE MITCHELL,

Petitioner,

—against—

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

William Chadbourne Mitchell petitions for a writ of certio-

rari to review the judgment of the United States Court of Appeals

for the Fifth Circuit affirming his conviction of 21 U.S.C.

§841(a)(1).

Opinions Below

The opinion of the court of appeals sitting en banc and the

dissenting opinion (App. A, la-124)' are reported at 538 F.2d

1230. The prior opinion of a panel of the court of appeals (App.

B, 13a-23a), which had reversed the conviction, is reported at

525 F.2d 1275. The district court’s findings of fact and conclu-

sions of law (App. D, 28a-30a) and its judgment of guilt (App.

E, 26a-27a) are not reported.

Jurisdiction

The judgment of the court of appeals (App. C, 24a-25a)

1. References herein to “‘a” are to pages in the appendix portion of the

petition, infra.

was entered on September 20, 1976. On September 28, 1976,

Mr. Justice Powell extended the time for filing a petition for

writ of certiorari to and including November 19, 1976. The

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

Constitutional Provision Involved

The Fourth Amendment to the United States Constitution

provides:

ne ee

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or af-

firmation, and particularly describing the place to be

searched, and the persons or things to be seize 1.

Questions Presented

1. Whether federal agents were required to obtain a warrant

to search or seize a parked camper-truck when, having probable

cause, they planned days in advance to search the vehicle at the

very location and on the very day upon which the search occurred,

and where the failure to obtain a warrant in advance was not

only intentional, but, in the words of the court of appeals en

banc majority, “foolhardy and unnecessary”’?

2. Whether federal agents were required to obtain a warrant

to search or seize an off-street parked camper-truck following the

arrest of the defendant where there were over a dozen agents al-

ready on the scene and there was no reasonable possibility that

anyone would attempt or be able to move or meddle with the ve-

hicle during the time required to obtain a warrant?

Statement

1. In June, 1973 agents of the United States Drug Enforce-

ment Agency (DEA) in New Jersey were contacted by a New

Jersey resident named Mancuso. Mancuso told the agents of a

complicated series of transactions in the spring of 1973 in which

he had been hired anonymously by people purporting to repre-

sent the Green Transportation Company to drive vehicles from

Mexico to the United States (App. B, 15a). Mancuso related that

he was provided air travel to Mexico on two occasions, and that

on the second trip he drove a green pick-up truck and camper

bearing Vermont license plates from Mexico to the Holiday Inn

Northeast in San Anton‘o. Upon returning to New Jersey, he

was contacted and directed to go to the West End Bar in New

York City and to wear a red wig. There, upon returning from

the lavatory, Mancuso found an envelope addressed to him con-

taining a $5,000 “bonus” (App. A, 4a).

After a lengthy investigation, DEA established that the

transportation company with which Mancuso had dealt was a

“cover” (A. 87, S.A. 8);? that the notarization and authorization

for Mancuso to drive the truck were invalid, as was the truck’s

registration (S.A. 9,11,22); and that the pay telephones from

which Mancuso had been contacted previously were used in a

scheme to import cocaine into the United States (S.A. 59-60).

The DEA agents were convinced that Mancuso had been used in

a scheme to import illegal drugs into the United States (App. B,

16a).

In October 1973, Mancuso informed DEA that he once

again had been contacted surreptitiously by the same “cover”

company to drive the same pick-up truck over the identical route

to the Holiday Inn in San Antonio,to which he had taken it on

the earlier trip (id.). DEA agents immediately began elaborate

plans to prevent, with Mancuso’s assistance, the suspected impor-

tation of contraband and to apprehend the person or persons

who were responsible.

Mancuso informed DEA of his instructions to drive the

truck over the Mexican border on October 13, 1973. On Octo-

ber 12, Special Agent Kline, who was in charge of the entire

DEA operation, conducted a briefing at which plans for the an-

ticipated surveillance, arrest and seizure were discussed (id. ).

2. References to “A.” and to “S.A.” are to pages in the Appendix and

Supplemental Appendix filed with the court of appeals, copies of which

will be lodged with the Court upon request.

4 <

This trip aborted when Mancuso was informed that evening that

the truck was not ready and that he should return to New Jersey.

Mancuso later was instructed to return to Mexico on Octo-

ber 20 to drive the truck on the planned route to San Antonio

on October 21. He relayed the information to the DEA agents.

Kline held another briefing with DEA and customs agents? on

October 19, at which he repeated the plans for surveillance, ar- )

rest, and seizure and restated his belief that narcotics would be

on the truck (S.A. 16, 68).

On October 21, Mancuso drove the truck across the border ;

according to plan and proceeded on the appointed route to the |

San Antonio Holiday Inn. Federal agents, utilizing five automo-

biles and an airplane, kept the truck under constant surveillance

(App. B, 17a; S.A. 29, 34-36, 70-71). Meanwhile a DEA “stake-

out” unit had been established at the Holiday Inn in San Antonio.

The DEA agents at the motel set up in advance a videotape surveil-

lance unit, and a special “starlight scope” for taping by moonlight

(App. B, 17a).

Mancuso arrived at the Holiday Inn and, as instructed by

his employer, locked the vehicle, disposed of the keys, and de-

parted the scene (App. A, 5a). Shortly thereafter Mitchell, who

had been observed following Mancuso all the way from Mexico,

arrived in a rented automobile (id.). By this time there were be-

tween twelve and fifteen federal agents on the scene (S.A. 55).

Mitchell transferred some personal items from the car to the

truck, and then left in the car. He returned about a half-hour

later in a taxicab. When he attempted to enter the truck-camper,

he was arrested (App. A, 5a). Mitchell was led away from the

parking lot, but was brought back several minutes later to be

present during the search (S.A. 116-118).

An initial search of the truck did not yield contraband.

Dogs were brought in and their behavior suggested that drugs

were secreted between the truck and the camper. With con-

3. Kline later testified that he requested the assistance of customs

agents in the belief that their presence would justify the failure to ob-

tain a warrant (S.A. 61, 63).

siderable effort, the agents were able to pry the camper up

enough to discover a sample of what appeared to be marijuana.

Subsequently, at police headquarters, 400 pounds of marijuana

were removed (App. A, p. 6a).

The federal agents never attempted to obtain a search war-

rant for these actions (id.), despite the fact that it was their ad-

mitted intention to arrest whomever arrived to claim the truck

at the Holiday Inn and to search the truck at that time (S.A.52).

2. A two count indictment was returned against petitioner

on April 11, 1974. Count One alleged a conspiracy to import and

to possess with intention to distribute a commercial quantity of

marijuana, in violation of 21 U.S.C. § $963 and 864. Count Two

alleged that petitioner possessed with intent to distribute approx-

imately 400 pounds of marijuana, in violation of 21 U.S.C.

§841(a)(1).

Prior to trial petitioner moved to suppress the marijuana

and other evidence seized from the truck-camper. After a hear-

ing, the district court orally denied the motion to suppress, stat-

ing that there was probable cause to search and that no warrant

was required under the “automobile search” doctrine (A. 15).

The marijuana was introduced at the non-jury trial. The

court found petitioner guilty of both counts of the indictment.

Subsequently, the court granted the government's post-trial mo-

tion to dismiss the first count of the indictment (A. 165), and

entered a finding of guilty on Count Two (A. 168 - A. 170). The

court sentenced petitioner to a term of five years imprisonment

with a five year special parole term (App. D, 27a).

3. A unanimous panel of the court of appeals reversed the

conviction. It held that while the government had probable cause

to search the vehicle, there were no exigent circumstances to jus-

tify the failure to obtain a warrant prior to the confrontation at

the Holiday Inn. “Probable cause to suspect contraband was

present”’ (20a) existed long before the vehicle arrived in San

Antonio. Moreover, the government “knew when and where the

car [sic] was to arrive” and planned on seizing and searching it

at that time and place (id.). It was “a planned warrantless

seizure... without any unforeseeable or actually unforeseen cir-

cumstances” (id.).

The court of appeals panel also rejected the government's

effort to justify the search as a “border search,” holding that

under all the circumstances of the case, the planned warrantless

seizure of the vehicle 300 miles within the United States and

seven hours after its entry did not come within that narrow ex-

ception (id. at 22a-23a).

4. Upon rehearing en bane, the court of appeals, over four

dissents,4 overruled the panel, upheld the warrantless search as

justified by exigent circumstances, and affirmed the conviction.

The court of appeals began its analysis by acknowledging

that the agents’ failure to obtain a warrant prior to the expected

arrest and seizure at the Holiday Inn in San Antonio was “fool-

hardy and unnecessary” (7a). Expressing its “dismay” (id.) at the

agents’ actions in “precipitat[ ing] all concerned into so vexed

and parlous an area of constitutional law,” the court found that

“a trip to the magistrate by one of the many agents would have

rendered all secure” (9a).

Nevertheless, the court of appeals found that exigent cir-

cumstances arose when someone (i.e., Mitchell) appeared to

claim the truck-camper and to drive it away.-The fact that

Mitchell’s action was entirely anticipated by the agents did not

matter to the court. It held that the potential for mobility which

arose at that time excused the prior decision not to obtain a

warrant.

The court of appeals also summarily rejected appellant's

argument that after his arrest, there were no exigent circum-

stances to justify the search or seizure of the vehicle prior to ob-

taining a warrant, ruling that the argument is foreclosed by

Chambers v. Maroney, 399 U.S. 42°(7a-8a).

4. Judges Wisdom and Thornberry did not participate because of illness.

ee Oba MY ot el -«

Reasons for Granting the Writ

1. The court of appeals’ holding that a warrantless seizure

and search of a vehicle may be justified by anticipated “exigent”

circumstances when the date and location of the seizure were

known in advance and where probable cause existed well before

the seizure critically distorts the “limited [exigency] exception,”

Coolidge v. New Hampshire, 403 U.S. 443, 479, to the warrant

requirement. It is contrary to every pronouncement on the sub-

ject by this Court and by the other federal courts of appeals. Un-

less corrected it will exacerbate the confusion which already

reigns in the application of the Fourth Amendment to vehicle

searches and seizures, and which, even before the instant decision,

has compelled several circuit courts of appeals to call for clarifi-

cation from this Court. Finally, the court of appeals’ decision will

have serious ramifications well beyond vehicle searches, per se; it

will encourage “mistakenly overzealous [law enforcement] offi-

cers,”” Gouled v. United States, 255 U.S. 298, 304, to create

their own “exigent” circumstances rather than fulfill their obli-

gation under the Fourth Amendment to obtain a warrant.

(a) The court of appeals’ effort to identify exigent circum-

stances in the present case is contrary to common sense and

logic, as is demonstrated by its own awkward effort to reconcile

its holding with its criticism of the actions of the DEA agents.

The court recognized that the agents “chose to forego” (9a) a

trip to the magistrate, not because it was impractical or because

they did noi foresee the precise time and plave of their planned

search, but because they “gamble|d] that factors of exigency

excusing that trip” (9a) would arise.* It admonished the agents

for failing to consider that “any number of unforeseeable events”

(9a) could have arisen which would have interfered with the so-

called “exigency” which they anticipated. But the court upheld

the warrantless search because nothing unforeseeable in fact did

occur and the expected “exigency” in fact did arise.

The court of appeals’ analysis turns the exigent circum-

5. The expected “exigency” was that someone would appear and at-

tempt to drive away with the vehicle.

stances rationale on its head. Where every aspect of a search and

seizure is anticipated, where the failure to obtain a warrant in ad-

vance is “foolish and unnecessary,” where no event occurs to up-

set the federal agents’ scenario, by definition there is no exigency.

In defining the exigent circumstances which give rise to the

limited automobile search exception, this Court consistently has

emphasized the unforeseeability of events which require an im-

mediate search or seizure. Thus in Carroll v. United States, 267

U.S. 132, the Court noted that the federal agents “were not anti-

cipating that the defendants would be coming through on the

highway at that particular time, but when they met them there

they believed they were carrying liquor, and hence the search,

seizure, and arrest.” Id. at 136 (emphasis added). The Court up-

held the agents’ action because, under the unforeseen circum-

stances, it would not have been “practicable to obtain a warrant.”

Id. at 153. In Chambers v. Maroney, 399 U.S. 42, the Court

warned that it was not dispensing with the warrant requirement

in all automobile search cases. Only where “the circumstances

that furnish probable cause . . . are . . . unforeseeable,”’ and “the

opportunity to search is fleeting . .. ,” Id. at 50-51 (emphasis

added), may a warrantless search be conducted upon probable

cause. Finally, in Coolidge v. New Hampshire, 403 U.S. 443,

the Court refused to uphold the warrantless search and seizure

of an automobile:

Since the police knew of the presence of the automobile

and planned all along to seize it, there was no “exigent

circumstance” to justify their failure to obtain a war-

rant.

Id. at 484.°

By permitting federal agents to anticipate a so-called exi-

gency — in fact, to create it — and then to exploit its occurrence

as an excuse for an intentional previous decision not to obtain a

warrant, the court of appeals “enthrones” the exception “into

6. The quoted portion is from Part IID of the Coolidge opinion, in which

Mr. Justice Harlan joined.

Ve eet en al

the rule.” United States v. Rabinowitz, 339 U.S. 56, 80 (Frank-

furter, J., dissenting). Its decision would allow officers to avoid

the warrant requirement in almost every conceivable instance,

whether the search is of an automobile, an office, or a home. In-

stead of applying for a warrant, a police officer could wait for ,

or create a context which would justify immediate intervention

to prevent flight, destruction of evidence, possible injury, etc.’

This is the most radical departure from the warrant requirement

ever suggested by a court of appeals, and one never countenanced

by this Court. |

b. The court of appeals attempted to draw support for its

analysis from a passage from the opinion of Mr. Justice Black-

mun in Cardwell v. Lewis, 417 U.S. 583 at 595-596: o

Respondent contends that here, unlike Chambers, prob-

able cause to search the car existed for some time prior

to arrest and that, therefore, there were no exigent cir-

cumstances. Assuming that probable cause previously

> existed, we know of no case or principle that suggests

that the right to search on probable cause and the rea-

sonableness of seizing a car under exigent circumstances

are foreclosed if a warrant was not obtained at the first

practical moment. Exigent circumstances with regard to

vehicles are not limited to situations where probable

cause is unforeseeable and arises only at the time of the

arrest. Cf. Chambers, id., 399 U.S. at 50-51. The exi-

gency may arise at any time, and the fact that the police

might have obtained a warrant earlier does not negate

the possibility of a current situation’s necessitating

prompt police action.

We note initially that there was no opinion of the Court in

Cardwell, and that the Justices who addressed themselves to the

7. For example, under the court of appeals’ analysis, a DEA agent with

probable cause could knock on a person’s door, state that the individual is

suspected of narcotics possession, and request permission to search. If per-

mission were refused, a search could be conducted anyway, because of the

—— circumstance that the alerted suspect would destroy the contra-

issue relevant here were divided 4—4. Thus the broad and expan-

sive interpretation given to Mr. Justice Blackmun’s opinion by

the court of appeals is particularly unwarranted. Indeed, if the

court of appeals’ reading of Mr. Justice Blackmun’s opinion is

accurate, then certiorari should be granted so that the Court

may resolve its own differences on the question.

Petitioner submits, however, that the court of appeals

totally misread the quoted dictum from Mr. Justice Blackmun’s

opinion. Properly read, it stands for the obvious proposition

that law enforcement agents need not decide, at the precise mo-

ment when probable cause first arises, whether or not or under

what circumstances they will attempt a search or seizure. Ac-

cordingly, they need not interrupt an ongoing investigation to

secure a warrant at that moment. It is sufficient if the law en-

forcement agents delay getting a warrant until a decision is made

to conduct a seizure and search at a particular time and place. If,

in the interval between the time that probable cause first arises

and a decision to seize and search is made, an unanticipated exi-

gency arises requiring immediate intervention, then the agents

may seize and search without a warrant.

In Cardwell, for example, even after probable cause arose

the police had made no firm decision to search or seize the

vehicle; certainly no decision had been made to do so at a par-

ticular time and place. Indeed, the vehicle’s owner seemingly

was cooperating with the police and it was conceivable that a

search or seizure would not be necessary. When it became obvi-

ous to the police that a seizure was required, exigent circum-

stances had arisen.® The case is quite different from the present

case in which the federal agents not only had probable cause to

seize the vehicle well before the actual arrest and seizure, but

planned long in advance to do so on a particular day, at a par-

ticular place, and under well-anticipated circumstances. No opin-

ion in Cardwell purports to sanction a warrantless search in such

a context.

8. The dissenting Justices in Cardwell did not agree that there were exi-

gent circumstances.

Ce ee ee ee ek ees

Several courts of appeals have made the very distinction

made here between the Cardwell-type situation and that present

in the instant case.

In United States v. Frazier, 538 F.2d 1322 (1975), the

Eighth Circuit upheld a warrantiess vehicular search, despite the

possible earlier existence of probable cause, explicitly on the

grounds that it was necessary for the agents to conduct further

investigation before a search to determine accomplices, followed

by the sudden and unanticipated need to conduct an immediate

search to protect the life of an unknown individual.

In United States v. Vento, 533 F.2d 838 (1976), the Third

Circuit rejected the defendant's argument that a warrant should

have been obtained when probable cause first arose, on the

grounds that the agents had not yet determined precisely when,

where, or under what circumstances {hey would search: “The

need to search DeLuca’s car arose suddenly and it was not pos-

sible for the DEA agents to obtain a warrant for the search of

the car prior to DeLuca’s arrest.” Id. at 867.

In United States v. Farnkoff, 535 F.2d 661 (1976), the

First Circuit noted with approval the panel’s decision in the

present case, but upheld the warrantless search of an automo-

bile even though probable cause existed sufficiently in advance

to obtain a warrant. The distinguishing factor was that in Farn-

koff, unlike in Mitchell, “there [was] no indication that the

agents knew when they obtained the warrant for the building

that they would later want to search the car as well.” Id. at

666. The First Circuit followed a similar approach in United

States v. Ferrara, 539 F.2d 799 (1976), in upholding a warrant-

less search where the agents in good faith were endeavoring to

obtain additional evidence to present to a magistrate when exi-

gent circumstances arose requiring an immediate search. The

court distinguished the case from its own decision, which it re-

affirmed, in United States v. Niro, 388 F.2d 535 (1968), in

which it held:

Proceeding without a warrant is not to be justified, as

the government suggests here, by the fact that by the

time the officers act, dispatch is necessary to avoid

flight or injury to person or property. Haste does not

become necessary in the present sense if the need for

it has been brought about by deliberate and unreason-

able delay. This would allow the exception to swallow

the principle.

388 F.2d at 540.

By choosing to interpret the language of Mr. Justice Black-

mun’s Cardwell opinion as justifying the planned warrantless

search here, the Fifth Circuit has created a rule which has not

been applied elsewhere and which is totally inconsistent with

the decisions of other circuit courts and with the previous pro-

nouncements of this Court.

c. While the several courts of appeals (other than the Fifth

Circuit) agree that nothing in Cardwell justifies a warrantless

search in the circumstances which existed in the present case,

they have noted the general difficulty of reconciling some of the

language in Cardwell with previous vehicle search doctrine as

enunciated in Carroll, Coolidge and Chambers. Especially in light

of the fact that there was no opinion of the Court in Cardwell,

and that all Justices in Cardwell specifically abjured an intention

to disturb Carroll or Coolidge, 417 U.S. at 592 n. 8, 593, these

courts of appeals have pleaded that the Court provide further

clarification and guidance.

Thus in Farnkoff, supra, the First Circuit noted that the

Court’s observation in Coolidge that the automobile search cases

“over the years point in differing directions” is even more true

today in light of Coolidge, Cardwell, and Texas v. White, 423

U.S. 67. In United States v. Robinson, 533 F.2d 578 (1976), the

District of Columbia Circuit, sitting en banc, wrote of the

“needed reconciliation” of the “divergent plurality opinions” of

Coolidge and Cardwell. See also United States v. McClain, 531

F.2d 431 (9th Cir. 1976); United States v. Bradshaw, 490 F.2d

1097 (4th Cir. 1974).

Certiorari should be granted to resolve these questions.

While, as we have suggested (supra at 10), a reconciliation can

be effected among Cardwell, Coolidge, Carroll and Chambers,

me et re hee a! -

such a reconciliation requires reversal of the decision below. The

court of appeals made no effort to analyze and apply the various

cases, and its decision in effect ignores a half-century of doctrine

in this Court and in the lower federal courts. If its decision is not

reviewed, the reigning confusion and conflict in the area of ve-

hicular searches will degenerate into chaos. This Court must

restore order, logic and justice to the constitutional scheme of

the Fourth Amendment.

2. The court of appeals also rejected petitioner's alternative

argument that, even if the federal agents were not required to

obtain a warrant prior to the anticipated confrontation at the

Holiday Inn, subsequent to Mitchell’s arrest the federal agents

neither should have searched nor seized the parked vehicle with-

out obtaining a warrant. The issue raised — i.e., whether and

under circumstances law enforcement agents may conduct a

warrantless search or seizure of a parked vehicle — is similar to

that which sharply divided this Court in a different factual con-

text in Cardwell y. wis, supra, and for which no definitive

resolution was reaciied. There has been considerable disagree-

ment and confusion in the courts of appeals as to the effect and

scope of Cardwell upon searches or seizures of parked vehicles.

The opinion of the court of appeals in this case goes the furthest

toward eliminating the warrant requirement altogether, and is in

direct conflict with the approach and holdings of several other

circuit courts. See United States v. Bradshaw, 490 F.2d 1097

(4th Cir. 1974); United States v. Robinson, 533 F.2d 578 (D.C.

Cir. 1976) (en banc).

The court of appeals claimed reliance upon the holding of

Chambers v. Maroney, supra, that there is no constitutional dif-

ference between searching a mobile automobile at the scene, on

the one hand, and seizing it and searching it at the police station,

on the other. The court ignored the crucial fact that, in the con-

text of the present case, there was no need to search or seize the

vehicle at the Holiday Inn following Mitchell’s arrest, without

first obtaining a warrant. The vehicle was parked off the street

in a semi-private parking lot. Because of the extended nature of

the surveillance leading up to the arrest, there were over a dozen

federal agents on the scene to provide a protective overwatch of

the vehicle while an application for a warrant was made. The

DEA agent in charge testified that he had no reason to believe

that there was any danger that confederates or accomplices

would arrive to drive away with the vehicle or destroy contra-

band (S.A. 55).

The situation thus was radically different from that in

Chambers or Texas v. White, 423 U.S. 67, in both of which the

automobile was stopped on the road, probable cause arose un-

expectedly, and it would have been very inconvenient or impos-

sible to post an effective guard. The context was very different

even from Cardwell, in which the police officers had reason to

believe that the suspect’s wife or attorney would attempt to

drive off with the automobile. 417 U.S. at 595. Nothing in any

of those decisions contradicts the core principle expressed in

Coolidge, that where it is practical to obtain a warrant prior to a

search or seizure of a vehicle and no event transpires requiring

immediate intervention, then a warrant is required.

The District of Columbia Circuit, sitting en banc, recently

reviewed this Court's decisions, including Cardwell and White,

and came to the conclusion that it would not uphold a warrant-

less search of a parked unoccupied car in circumstances similar

to those present here. United States v. Robinson, supra.? The

court noted the “divergence” between this Court's plurality

opinions in Coolidge and Cardwell, but assumed that “if a

Supreme Court majority intends . . . to depart from its prior

approach, it will do so by express pronouncement to all con-

cerned.” 533 F.2d at 538 n. 9. The Fourth Circuit’s decision in

United States v. Bradshaw, supra, overturned a conviction ex-

pressly on the grounds that a warrant could have been obtained

prior to the search or seizure of the parked vehicle. Both courts

noted the unsettled nature of the problem. See also United

States v. McClain, 531 F.2d 431 (9th Cir. 1976).

The Fifth Circuit’s decision below is plainly contrary

to the approach and holdings of its sister circuits. If a war-

9. The court noted with approval the panel’s decision in the present

case. 533 F.2d at 583 n. 9.

se. th ae ea A lt Nat A UE eg BT Ae linea a ae

i how ted A peta ne A nh

ewe

ee ee

rant was not required prior to the search or seizure of the ve-

hicle here, it is difficult to imagine under what circumstances

a warrant ever would be required for a vehicular search. The

Court should grant certiorari to resolve the differences among

the circuits as to the meaning and scope of the Court’s various

pronouncements on the issue, and to reaffirm that law enforce-

ment officers must comply with the warrant requirement unless

it is not reasonably practicable to do so, even when they seek to

search or seize an automobile or other vehicle.

3. The internal inconsistency and tortured analysis in the

court of appeals’ opinion reveals a result-oriented approach to

this case. As Circuit Judge Dyer suggested in dissent, the major-

ity ’s opinion can be explained only by its apparent reluctance to

apply the exclusionary rule where “the constable put himself in

the way to blunder” (App. A, 11a). But the exclusionary rule is

and has remained the law in the federal courts for over sixty

years. See Weeks v. United States, 232 U.S. 383. Until and un-

less this Court overrules Weeks, the federal courts have the obli-

gation to apply the rule with full force, and without undermin-

ing the core protection of the Fourth Amendment itself.

In the instant case, application of the exclusionary rule is

particularly appropriate. This is not a case in which law enforce-

ment agents relied upon a warrant which turned out to be insuf-

ficient, or where agents in good faith mistakenly believed that

they could not obtain a warrant under the circumstances.

Rather it is a case in which, as the court of appeals recognized,

the federal agents intentionally and purposely decided to forego

the warrant procedure. It is precisely such actions against which

the exclusionary rule is directed.

CONCLUSION

For the foregoing reasons, the petition for writ of certiorari

should be granted.

Respectfully submitted,

ERIC M. LIEBERMAN

MICHAEL B. STANDARD

Rabinowitz, Boudin & Standard

30 East 42nd Street

New York, New York 10017

November 1976 Attorneys for Petitioner

“ -~ Le he a tia nr it teller

Appendix A

Opinion of the Court of Appeals,

Upon Rehearing En Banc

UNITED STATES of America,

Plaintiff-Appellee,

William Chadbourne MITCHELL,

_ Defendant-Appellant.

No. 75-1814.

United States Court of Appeals,

Fifth Circuit.

Sept. 20, 1976.

Defendant was convicted before the

United States District Court for the

Western District of Texas, Adrian A.

Spears, Chief Judge, of possessing mari-

juana with intent to distribute, and he

appealed. A panel of the Court of Ap-

peals, 525 F.2d 1275, held that neither

exigent circumstances nor “border

search” exception obtained with respect

to warrantless search of truck and re-

versed. After reargument en banc, the

Court of Appeals, Gee, Circuit Judge,

held that where at time of seizure de-

fendant had completed loading truck,

disposed of his other vehicle, and as-

sumed driver’s seat, ignition key in hand,

exigent circumstances existed for war-

rantless search of truck regardless of

fact that federal agents had had ample

prior opportunity to obtain warrant.

Affirmed.

Roney, Circuit Judge, concurred in

result only.

Dyer, Circuit Judge, filed dissenting

opinion in which Goldberg, Godbold and

Lewis R. Morgan, Circuit Judges, joined.

1. Searches and Seizures @3.3(7)

Where probable cause existed for

search of truck, and at time of seizure in

motel ing lot defendant had com-

pleted tae truck, disposed of his oth-

er vehicle, and assumed driver's seat, ig-

nition key in hand, exigent circumstanc-

es existed for warrantless search of

truck. U.S.C.A.Const. Amend. 4.

Drugs and Narcotics e183

7 Presence around parking lot in

which truck believed to contain marijua-

na was located of ten or more surveilling

agents rather than one or two did not

affect question whether truck was im-

mobile so as to preclude finding of exi-

gent circumstances for warrantless

search of truck. Comprehensive Drug

Abuse Prevention and Control Act of

1970, § 401(a)(1), 21 U.S.C.A. § 841(aX1);

U.S.C.A.Const. Amend 4.

3. Searches and Seizures *3.3(7)

Where exigent circumstances arose

for warrantless search of truck after de-

fendant completed loading truck, dis-

posed of his other vehicle, and assumed

driver’s seat, ignition key in hand, fact

that federal agents, who chose to forego

trip to magistrate and gambled that fac-

tors of exigence excusing that trip would

eae

arise, had ample time after probable

cause arose to obtain warrant but did

not attempt to do so did not invalidate

search on theory that search was deliber-

ately planned as a warrantless one. U-S.

C.A.Const. Amend. 4.

Appeal from the United States Dis-

trict Court for the Western District of

Texas.

Before BROWN, Chief Judge, and

GEWIN, THORNBERRY *, COLEMAN,

GOLDBERG, AINSWORTH, GOD.

BOLD, DYER, MORGAN, CLARK, RO-

NEY, GEE, TJOFLAT and HILL, Cir-

cuit Judges.**

GEE, Circuit Judge:

_ Mitchell appeals his conviction and

five-year sentence for possessing mari-

juana with intent to distribute, 21 U.S.C.

§ 841(aX1). The sole issues on this ap-

peal concern the constitutional validity

of a warrantless search of an automobile

in which appellant was apprehended and

in which the contraband was discovered.

A panel of this court, though acknowl-

edging the existence of probable cause to

support the search, concluded that nei-

_ ther exigent circumstances nor the “bor-

der search” exception obtained and re-

versed Mitchell’s conviction. Believing

* Because of illness, Judge Thornberry did not parti-

cipate in the consideration of this case.

** Because of illness, Judge Wisdom did not partici-

pate in the hearing or in the consideration of this case.

the views expressed by our panel dubi-

ous in light. of recent Supreme Court

authority, we took the case en banc and

heard re-argument. We now vacate the

panel’s action and affirm the judgment

below.

Pertinent Facts

The panel opinion, reported at 5 Cir.,

525 F.2d 1275, carefully sets out the

facts leading up on the critical search,

and we need not repeat these in detail

here. Suffice it to say that in the spring

of 1978, federal Drug Enforcement Ad-

ministration officials in New Jersey were

contacted by one Mancuso, who estab-

lished to their satisfaction that he had

been hired by an anonymous employer

operating in a “cover” name to drive a

truck from Mexico into the United

States. Mancuso had already completed

one such successfu) expedition, and an-

other was in the offing. His suspicions

had been aroused, however, by the unex-

munificence of a cash bonus de-

livered to him under mysterious circum-

stances after the first trip—$5,000. In-

vestigation indicated these arrangements

were likely a cover for some sort of a

contraband-smuggling scheme. After

various false starts and minor maneuvers

unnecessary to detail, Mancuso advised

the officials that he was to pick up the

truck (which he accurately described in

great detail, including its Vermont

license plate) in Mexico on October 20,

1978, cross the border at a given time,

and leave it on the parking lot of a

Le i ncn Os Cn ol

specified motel in San Antonio, Texas.

This he did and, as instructed by his

employer, locked the vehicle, disposed of

the keys, and departed the scene.

Shortly thereafter at about dusk, ap-

pellant Mitchell, who had been observed

following Mancuso discretely all the way

from Mexico, drove his rented automo-

bile into the parking lot. The several

agents who were lying in wait there saw

him circle the parked truck, return to

the public street, and park. About ten

minutes later, accompanied by his dog,

he re-entered the lot and parked along-

side the truck. Producing a key, Mitch-

ell then unlocked the rear door of the

truck’s camper body, as well as the

truck’s cab. He then locked the dog in

the cab and transferred the contents of

his automobile to the truck’s camper en-

closure. Among these were several an-

gle-irons and two hydraulic jacks, suit-

able for elevating the camper shell from

the truck bed. These maneuvers were

videotaped by the agents, in part by the

use of special “starlight” lens equipment

provided by them in anticipation of

night work. His transfers completed,

Mitchell locked the truck throughout and

drove off in his automobile. At this

time, about an hour had elapsed from his

first appearance at the parking lot that

Sunday evening.

About half an hour later, having

turned in his rented car as was later

ascertained, he returned in a _ taxi.

When he re-entered the truck cab, seat-

ed himself, and “it appeared imminent

that he was going to drive the truck

away,” agents converged on the truck

and arrested him. About a forty-five

minute wait then ensued while Customs’

dogs trained to sense controlled sub-

stances were summoned. When their ac-

tions indicated the presence of such sub-

stances in or about the camper, the

agents attempted to gain access to the

area between the camper floor and the

truck bed. After about a half-hour’s ef-

fort and the removal of a hold-down

bolt, they were able to pry up the camp-

er and obtain a small sample of vegeta-

ble material which they recognized as

marijuana. The camper shell was later

removed by means of the jacks, and

quantity of over 400 pounds of the sub-

stance was found hidden in the space

between the camper floor and the truck

bed. The agents neither had nor ever

attempted to get a warrant authorizing

any of these actions.

Probable Cause: Exigent

Circumstances?

In view of the above facts and others

detailed in the thorough opinion of our

panel, appellant wisely concedes the ex-

istence of probable cause to support the

search| He argues, however, that for

two reasons there were not exigent cir-

cumstances justifying the agents’ failure

1. Indeed, his major argument, shortly to be

dealt with, is that probable cause arose suffi-

ciently early that the agents’ failure to obtain a

warrant based on it makes their actions a

“planned warrantless search.”

to obtain a warrant. We can only con-

fess our congeniality to appellant’s objec-

tion and our perhaps ingenuous dismay

that at no time in the course of these

experienced agents’ elaborate and

lengthy preparations to apprehend him

did it appear to cross anyone’s mind to

seek a warrant. Clearly this would have

been the better course; it does not fol-

low necessarily, however, that the chosen

one was fatal and that the guilty Mitch-

ell must therefore go free. That it was

foolhardy and unnecessary, however, is

too plain for argument.

Was the Truck Immobile?

{1,2] Appellant’s first contention,

that by the time of the search the truck

had been immobilized, exigence had

passed, and a warrant could have been

obtained at leisure, is foreclosed by

Chambers v. Maroney, 399 U.S. 42, 90

S.Ct. 1975, 26 L.Ed.2d 419 (1970), and

Cardwell v. Lewis, 417 U.S. 588, 94 S.Ct.

2464, 41 L.Ed.2d 325 (1974). Both of

these authorities recognize that exigence

is to be determined as of the time of

seizure of an automobile, not as of the

time of its search; the fact that in these

cases sufficient time to obtain a warrant

had passed between each seizure and the

corresponding search did not invalidate

either. At the time of the seizure here,

Mitchell had completed loading the

truck, disposed of his other vehicie, and

assumed the driver's seat, ignition key in

hand? To require the agents to permit

2. Mitchell’s condition of mobility may be in-

structively compared with those of the defend-

him to depart and then run him to

ground on the public street would be

ludicrous. Nor do we think the matter

affected by the presence around the

parking lot of ten or more surveilling

agents rather than one or two. We have

never before tested mobility of automo-

biles or exigence of circumstances by

evaluating police capability to respond or

the balance of forces deployed. Once

commenced, the end of such a calculus

would be evaluation of the opposing ar-

maments and of the relative top speeds

of the vehicles. We decline to embark

on it.

The “Planned Warrantless Search”

[3] Appellant’s major argument for

want of exigence, and that chiefly relied

on by the panel in invalidating the

search, is that the search was deliberate-

ly planned as a warrantless one. By this

is meant either (or perhaps both) that

there was ample time after probable

cause had arisen for the obtaining of a

warrant but none was sought or that the

agents, confident that they would be

dealing with an automobile, deliberately

chose to take advantage of the so-called

ants in Cardwell and in the more recent case

of Texas v. White, 423 U.S. 67, 96 S.Ct. 304,

46 L.Ed.2d 209 (1975). In Cardwell, the car

searched was parked on a lot, and the keys

and claim check were in the defendant Lewis’

pocket at the time of his arrest. In White, the

defendant had parked the car at the curb un-

der police instructions when he was arrested.

As Cardwell notes, 417 U.S. at 594, 94 S.Ct. at

2471 (plurality opinion), none of this matters

much: “The fact that the car in Chambers was

ee Se Os eee ee

“automobile exception” to the warrant

requirement. We have already noted

our incredulity that experienced agents

would deliberately and needlessly precip-

itate all concerned into so vexed and

parlous an area of constitutional law, a

decision roughly comparable in prudence

to determining whether an electric wire

is charged by grasping it. In the first

place, as the panel opinion correctly

notes, there is no general automobile ex-

ception to Fourth Amendment require-

ments. In the second, and as a practical

matter, any number of unforeseeable

events could have frustrated the agents’

reliance on the narrower exception which

does in fact exist. A trip to the magis-

trate by one of the many agents would

have rendered all secure. Instead, the

agents chose to forego it and gamble

that factors of exigence excusing that

trip would arise.

As we have noted above, they did

arise. And since they did, it does not

matter when they did. As the Supreme

Court noted in Cardwell:

Respondent contends that here, unlike

Chambers, probable cause to search

the car existed for some time prior to

arrest and that, therefore, there were

no exigent circumstances. Assuming

that probable cause previously existed,

we know of no case or principle that

seized after being stopped on a highway,

whereas Lewis’ car was seized from a public

parking lot, has little, if any, legal signifi-

cance.” But if it had, the mobility honors

seem to rest with Mitchell, if with anyone

among the three of himself, Lewis and White.

10a

suggests that the right to search on

probable cause and the reasonableness

of seizing a car under exigent circum-

stances are foreclosed if a warrant

was not obtained at the first practical

moment. Exigent circumstances with

regard to vehicles are not limited to

situations where probable cause is un-

foreseeable and arises only at the time

of the arrest. Cf. Chambers, id., 399

U.S. at 50-51, [90 S.Ct. 1975, at 1980—

1981, 26 L.Ed.2d 419]. The exigency

may arise at any time, and the fact

that the police might have obtained a

warrant earlier does not negate the

possibility of a current situation’s ne-

cessitating prompt police action. (em-

phasis added)

417 U.S. at 595—96, 94 S.Ct. at 2472 (plu-

rality opinion). Cf. United States v.

Watson, 423 U.S. 411, 96 S.Ct. 820, 46

L.Ed.2d 598 (1976); Texas v. White, 423

U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209

(1975).*

3. We note in passing that the reference to

Coolidge v. New Hampshire, 403 U.S. 443, 472

n. 27, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971),

opinion in support of its

invalidation of the agents’ action here as a

“planned warrantless seizure,” 525 F.2d at

1278, is inapposite. The Supreme Court was

there speaking to the inadvertence element of

the plain-view doctrine, a well-established and

integral part of that exception to the warrant

requirement. Inadvertence or unforeseeability

the contrary, as the text references above to

Chambers and Cardwell demonstrate. More-

lla

We deal here with a crime and a crim-

inal, not with a sporting event. True,

the constable put himself in the way to

blunder, though he did not. Appellant

would nevertheless have us disqualify

him from the game because he chose a

course less than the best, or perhaps be-

cause his heart was not entirely pure.

a a was not a game, and we decline to

80.

Appellant’s conviction is

AFFIRMED.

RONEY, Circuit Judge, concurring in

result only.

DYER, Circuit Judge, with whom

GOLDBERG, GODBOLD and MORGAN,

Circuit Judges, join, dissenting.

With deference I dissent. Nothing

said in the majority opinion changes my

conviction that the panel opinion applied

=— legal principles to the undisputed

acts.

I have found no case, Watson, White

and Cardwell included,’ that dispenses

over, contraband is specifically excluded from

the reach of the sentence to which the foot-

note cited from Coolidge is appended.

4. Our disposition makes it unnecessary for us

to reach the issue of whether the agents’ pro-

cedures were valid as a “border search” under

United States v. Martinez, 481 F.2d 214 (5th

Cir. 1973), except insofar as we vacate the

panel’s treatment of this point.

1. The Supreme Court took pains to point out

in Cardwell that it was “not confronted with

any issue as to the propriety of a search of a

car’s interior,” and emphasized that neither

Carroll nor Coolidge was therefore apposite.

l2a

with exigent circumstances for a search

of an automobile without a warrant.

Other Circuits are in accord. United

States v. Farnkoff, 1 Cir. 1976, 585 F.2d

661 [19 Cr.L. 2205]; United States v.

McClain, 9 Cir. 1976, 531 F.2d 431 [18

Cr.L. 2521]; United States v. Robinson,

D.C.Cir.1976, 533 F.2d 578 [18 Cr.L. 2584,

en banc]; United States v. Kemper, 6

Cir. 1974, 508 F.2d 327, cert. denied,

1975, 419 U.S. 1124, 95 S.Ct. 810, 42

L.Ed.2d 824; United States v. Bozada, 8

Cir. 1978, 473 F.2d 389; United States v.

Bradshaw, 4 Cir. 1974, 490 F.2d 1097,

cert. denied 1974, 419 U.S. 895, 95 S.Ct.

178, 42 L.Ed.2d 139.

This is factually a unique case. From

beginning to end the truck’s trip varied

not one iota from the detail worked out

in rehearsal—about which all was known

by the agents. Even the closed circuit

television cameras were in place to pho-

tograph and record the arrest and sei-

zure. The agents knew that someone

(Mitchell) would get into the truck at

the Holiday Im: and attempt to drive

away. At the time of the seizure noth-

ing had occurred or did occur that was

unanticipated or unexpected. It is se-

mantic aphasia to define these circum-

stances as exigent.

I am as much against crime and crimi-

nals as the next judge. But this gener-

alization has no place in determining

whether the government has failed to

prove its case because evidence upon

which it relied is inadmissible as having

been obtained in an _ unconstitutional

manner. I would reverse the conviction.

aa es ek tcc oe

Appendix B

Opinion of the Panel of

the Court of Appeals

UNITED STATES of America,

Plaintiff-Appellee,

William Chadbourne MITCHELL,

Defendant-Appellant.

No. 75-1814.

United States Court of Appeals,

Fifth Circuit.

Jan. 16, 1976.

Defendant was convicted in the

United States District Court for the

Western District of Texas at San Anto-

nio, Adrian A. Spears, Chief Judge, of

possessing marijuana with intent to dis-

tribute. Defendant appealed. The

Court of Appeals, Dyer, Circuit Judge,

held th . where there was probable

cause to suspect contraband in a van and

where the entire operation from begin-

ning to end had been intimately surv-

eilled, the Government knowing when

and where the van was to arrive, and

where it was entirely practicable for the

agents to procure a search warrant,

search without a warrant and without

any exigency factor was violative of the

Fourth Amendment. The border search

exception to warrant requirement was

not applicable.

Reversed.

l4a *

1. Searches and Seizures @=3.3(6)

There is no per se exemption of

search warrant requirement for automo-

biles. Comprehensive Drug Abuse Pre-

vention and Control Act of 1970,

§ 401(aX1), 21 U.S.C.A. § 841(aX1); U.S.

C.A.Const. Amend. 4; 19 U.S.C.A. § 482.

2. Searches and Seizures #7(10)

Where there was probable cause to

suspect contraband in van and entire op-

eration from beginning to end had been

intimately surveilled, the Government

knowing when and where van was to

arrive, and where it was entirely practi-

cable for the agents to procure search

warrant, search without warrant and

without exigency factor was violative of

Fourth Amendment. Comprehensive

Drug Abuse Prevention and Control Act

of 1970, § 401(aX1), 21 US.C.A.

§ 841(aXi); U.S.C.A.Const. Amend. 4.

3. Customs Duties #126

Where there was complete, detailed

and reliable knowledge of itinerary and

destination of vehicle, contro! of vehicle

by cooperating informer and thorough

surveillance and general preparedness of

the Government at planned search site,

which was about 300 miles from border

crossing, border search exception to war-

rant requirement was not applicable.

Comprehensive Drug Abuse Prevention

and Control Aci of 1970, § 401(aX1), 21

U.S.C.A. § 841(aX1); U.S.C.A.Const.

Amend. 4; 19 U.S.C.A. § 482.

L5a

Appeal from the United States Dis-

trict Court for the Western District of

Texas.

Before GODBOLD, DYER and MOR-

GAN, Circuit Judges.

DYER, Circuit Judge:

Mitchell seeks reversal of his convic-

tion of possessing marijuana with intent

to distribute, 21 U.S.C.A. § 841(a)1).

He asserts that his Fourth Amendment

rights were violated in the search of a

parked pick-up truck which had recently

crossed into the United States at the

Mexican border and in the seizure of 400

pounds of marijuana. The government

argues two bases to justify the govern-

ment’s lack of search warrant: first, the

so-called automobile exception for exi-

gent circumstances; and second, that

this was a border search. We conclude

that the district court erred in denying

the appellant’s motion to suppress the

evidence and reverse.

In June of 1973, agents of the United

States Department of Justice’s Drug En-

forcement Agency (DEA) in New Jersey,

were given information by Mancuso, a

private individual, concerning a compli-

cated series of .ransactions in the spring

of 1978, in which he had been anony-

mously hired to drive a car into the

United States from Mexico. The cooper-

ating informer presented ample support-

ing documentation of these initial trips.

DEA agents in New Jersey conferred

about these operations with DEA agents

in Texas over the course of the summer

l6a

of 1973. During this period DEA discov-

ered substantial evidence indicating that

the apparent travel arrangements were

merely a cover for an illegal scheme to

import contraband narcotics. In October

of 1978, Mancuso was once again surrep-

titiously propositioned about this Mexi-

can venture in New York City by a pho-

ny transportation company. Mancuso

told DEA about his instructions to fly to

Texas, to cross the border to Mexico, to

pick up the same pick-up truck he had

driven across empty in April and deliver

it to the same San Antonio Holiday Inn

he had taken it to on the earlier trip.

On October 13th, a meeting was held

by the agents of the Texas DEA with

New Jersey DEA and the United States

Customs. The DEA agents discussed

their belief that narcotics were going to

be smuggled into the country in this

truck. This trip, like the April one,

aborted when Mancuso the next day was

told by telephone that the truck was not

yet ready, and to return to Mexico and

pick up the truck on October 20. He

supplied DEA with the truck’s descrip-

tion (color, make, license plates, etc.), its

designated destination and the time of

border crossing. These specifics were

the same as they had been in the prior

runs in the spring.

On the day of the contested search,

the DEA had made extensive prepara-

tions for the contemplated drug seizure,

both at the border and at the designated

arrival site of the truck in Texas. The

truck driven by Mancuso, and a red

Buick automobile driven by Mitchell

= ww neta A and. — ee

ne enna

17a

which was following the truck, were

kept under continuous surveillance all of

the time after they crossed the border at

Brownsville, Texas. Meanwhile, a DEA

“stake-out” unit had been established as

the same Holiday Inn in San Antonio

that had previously been designated as

the truck’s destination. The DEA

agents had set up in advance a videotape

surveillance unit, and a special “starlight

scope” for taping by moonlight.

Mancuso parked the truck in the San

Antonio Inn parking lot, seven hours and

approximately 300 miles after crossing

the Mexican border. When Mitchell ap-

peared, unlocked and attempted to enter

the truck, he was arrested by a DEA

agent. An initial search of the truck did

not turn up any contraband. Dogs were

brought in, and their behavior suggested

the presence of contraband. A bolt se-

curing the bottom of the truck was re-

moved enough to disclose a sample of

what appeared to be marijuana. Subse-

quently, at police headquarters, 400

pounds of marijuana was removed.

The government, relying on Chambers

v. Maroney, 1970, 399 U.S. 42, 90 S.Ct.

1975, 26 L.Ed.2d 419, argues that the

search is valid under the automobile

search exception to the warrant require-

ment. Mitchell responds that the search

cannot be justified because there were

no exigent circumstances. Since this

was a planned search, he contends there

was adequate opportunity to obtain a

warrant well in advance of the seizure of

the truck.

We fully recognize the general princi-

18a

ple of probable cause coupled with exi-

gent circumstances urged by the govern-

ment to justify its proceeding without a

warrant. That there was probable cause

to arrest Mitchell and to search the vehi-

cle at the time he attempted to enter it

cannot be disputed. But, the govern-

ment has been unable to demonstrate

any exigent circumstances. Its claim,

that the evidence might evaporate, is un-

substantiated in the record. To the con-

trary the government had planned and

prepared for the expected search at the

designated site with unusually extensive

personnel and equipment. There was lit-

erally no risk of loss of the contraband,

nor loss of sight of the vehicle enroute

as it was at all times under the control

of Mancuso, the cooperating informer.

The only circumstances suggesting un-

predictability were the facts unknown to

Mancuso. He did not know the identity

of the principals involved, nor that the

trip in question would not be aborted as

had previously occurred. In the distinc-

tive factual context of this case we re-

gard these uncertainties as of minimal

significance. The notion of unpredicta-

bility here is simply outweighed by the

extraordinary specificity of the govern-

ment’s advance knowledge and planning

of the search over such a prolonged time

period.

Essentially, the government’s conten-

tion is the existence of per se exigency

for a warrantless search whenever an

automobile is involved, regardless of the

attendant circumstances. To uphold this

eee es ee ee

DU etnies tne ee isthe te

19a

search under the automobile exception

would entail a radical expansion of that

theory’s scope contrary to the underlying

rationale for allowing the original devia-

tion from the constitutional rule. Car-

roll v. United States, 1925, 267 U.S. 132,

153, 45 S.Ct. 280, 69 L.Ed. 543. In the

absence of the compelling facts of exi-

gency, reason for the exception fails. As

the Supreme Court has reiterated, “The

rationale of Chambers is that given a

justified initial intrusion, there is little

difference between a search on the open

highway and a later search at the sta-

tion. Here, we deal with the prior ques-

tion of whether the initial intrusion is

justified.” Coolidge v. New Hampshire,

1971, 403 U.S. 443, 463 n. 20, 91 S.Ct.

2022, 2036, 29 L.Ed.2d 564. See also

Cardwell v. Lewis, 1974, 417 U.S. 583, 94

S.Ct. 2464, 41 L.Ed.2d 325.

{1} In Chambers, a_ warrantless

search of a car securely held in govern-

ment custody was nevertheless reasona-

ble only because te initial seizure had

been proper due to exigent circumstanc-

es. Chambers, supra, 399 U.S. at 51-52,

90 S.Ct. 1975. See Note, Warrantless

Searches and Seizures of Automobile, 87

Harv.L.Rev. 835, 843-844 (1974); Miles

and Wefing, The Automobile Search and

the Fourth Amendment—A _ Troubled

Relationship, 4 Seton Hall L.Rev. 105,

130-132 (1972). The vehicle’s potential

instant mobility has always been the cru-

cial factor rendering the prior obtaining

of a search warrant impractical. Thus

effective law enforcement requires im-

20a

mediate action because “the opportunity

[for the] search is fleeting.” Chambers,

supra at 51, 90 S.Ct. at 1981. But there

is no per se exemption of the warrant

requirement for automobiles. “The

word ‘automobile’ is not a talisman in

whose presence the Fourth Amendment

fades away and disappears.” Coolidge,

supra, 408 U.S. at 461-62, 91 S.Ct. at

2035.

[2] In the instant case the exigency

factor is missing. There were no time

constraints. On the contrary it was en-

tirely practicable for DEA to procure a

search warrant. Probable cause to sus-

pect contraband was present. The entire

operation from beginning to end was in-

timately surveilled. The government

knew when and where the car was to

arrive, and once arrived in the motel

parking lot, it was surrounded by no less

than ten surveilling agents. There was

no question of mobility. We deal here

with a planned warrantless seizure, see

Coolidge, supra, at 471 n. 27, 91 S.Ct.

2022, without any unforeseeable or actu-

ally unforeseen circumstances.

[3] The second theory advanced by

the government is that there was a cus-

toms search by Customs agents having

broad statutory authority to conduct bor-

der searches without either a search

warrant or even probable cause. 19 U.S.

C.A. § 482. United States v. Martinez, 5

Cir. 1973, 481 F.2d 214. Since there are

no specific temporal or spatial limita-

tions on this search authority the

government submits that the search is a

21a

reasonable exercise of its customs au-

thority. Mitchell’s response is that this

was not a functional equivalent of a bor-

der search, nor was it a customs search

because it was not conducted by customs

agents; the agents were simply passive

observers, present for the purpose of vi-

cariously conferring their statutory

search authority upon DEA.

We need not reach the issue of wheth-

er, and under what circumstances, an

otherwise reasonable border search could

be invalidated on the basis of the pretex-

tual presence of customs agents in a

search operation clearly run by other

governmental officials. See United

States v. Thompson, 5 Cir. 1973, 475 F.2d

1359, 1361-68. We assume that this

search was carried out under the cus-

toms authority, yet even this broad au-

thority is subject to constitutional de-

limitations.

The government relies on United

States v. Martinez, supra, in which we

upheld as constitutionally permissible a

search 150 miles from the border (after

more than 300 miles of actual driving)

and 142 hours later in time. But we

made it clear in Martinez that the proper

constitutional approach to determining

the validity of the search is the “reason-

ableness standard, which requires a full

evaluation of the circumstances leading

to the search as a basis for determining

its propriety.” We utilized this “reason-

ableness standard,” rather than the “ap-

pealing simplicity” of the bare “factors

of time and distance to the exclusion of

all other factors.” Id. at 218, 219.

22a

In applying the Martinez standard to

the facts of the instant case, we again

emphasize that we do not adopt a per se

formula defining the outside numerical

functional equivalents of the border.

That the scope of the border is “an elas-

tic concept, not susceptible to precise

definition in temporal or spatial terms,”

Martinez, supra, at 218, is simply a rec-

ognition of the infinite possibilities for

varying patterns of factual circumstanc-

es!

But, here the complete, detailed, and

reliable knowledge of the itinerary and

destination of the vehicle, the control of

the vehicle by the cooperating informer,

al preparedness of government a

the planned search site, taken together

with the time and distance, destroy the

underlying criteria for a proper border

search. So, So

vehicle’s journeying and its even

Gentian nen tae All of the

time that that vehicle was being driven

on the highways there was a contizuous

possibility that the suspected contraband

would be lost or destroyed. There was

no such possibility in the instant case,

nor was any significant aspect of the

vehicie’s journeys either unforeseeable or

unforeseen.

1. See for example the geographical range =

cases where we have upheld customs searches

conducted at distances, up to 150 miles, from

the border, collected m Martinez, supra, &

219, 2 11. But it is significant for our analy-

sis of the instant case that m all of those cases

the destination of the vehicle was unksown

23a

The border search exception to the

warrant -requirement is grounded upon

finding a pressing governmental need

for acting without a warrant. The

courts have consistently treated the bor-

der search exception as based on the ne-

cessity for “national self-protection” in

protecting the country from smuggling

of contraband. Carroll, supra, 267 U.S.

at 154, 45 S.Ct. 280. Thomas v. United

States, 372 F.2d 252, at 254. This ration-

ale of a practical imperative mandating

immediate action justifies the notion of

an extended border search.

The national interest in apprehending

smugglers and their contraband makes

such a conceptual elasticity constitution-

ally acceptable. Martinez, supra, and