Petition — Bogle v. United States

*f-

.,. Supreme Court, U.S.

i FILED a/

| vg |

,

IN THE

SUPREME COURT OF THE UN) THERAES POPAKSIR. CLERK

October Term, 1976

NO. —y7-~ 14 ™

BASCOM BOGLE,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

Petition For Writ Of Certiorari

To The United States Court Of

Appeals For The Ninth Circuit,

Judgment Affirming Judgment Of

The United States District Court

For The Central District Of

California

CHESTER L. BROWN

433 North Camden Drive

Suite 1200

Beverly Hills, CA 90210

(213) 274-8274

Attorney for Petitioner

BROWN & NEWTON

Attorneys at Law

IN THE TOPICAL INDEX

SUPREME COURT OF THE UNITED STATES r

| Page

October Term, 1976 Je

No Table of Authorities ii

OPINION BE™LOW 2

JURISDICTION 2

BASCOM BOGLE,

a QUESTIONS PRESENTED 3

Petitioner,

vs. STATUTORY PROVISIONS INVOLVED 3

UNITED STATES OF AMERICA, STATEMENT OF THE CASE 5

Respondent. REASONS FOR GRANTING THE WRIT 6

THE SEARCH IN THIS CASE WAS

CONDUCTED IN CONTRAVENTION OF

STATUTORY AUTHORIZATION 7

Petition For Writ Of Certiorari ’

To The United States Court Of TITLE 19, UNITED STATES CODE,

Appeals For The Ninth Circuit, § 482 IS OVERLY BROAD AND

Judgment Affirming Judgment Of AUTHORIZES "GENERAL WARRANTS" 8

The United States District Court

For The Central District Of TITLE 19, UNITED STATES CODE,

California § 1496 DOES NOT AUTHORIZE

SEARCHES FOR CONTRABAND 8

CONCLUSION 9

APPENDIX A

CHESTER L. BROWN

} Memorandum filed March 15, 1977

433 North Camden Drive

Suite 1200 APPENDIX B

Beverly Hills, CA 90210 4

(213) 274-8274 Order Denying Petition for Rehearing

Lh filed May 27, 1977

Attorney for Petitioner ;

BROWN & NEWTON

Attorneys at Law i

TABLE OF AUTHORITIES IN THE

' SUPREME COURT OF THE UNITED STATES

October Term, 1976

Cases Page

Almedia-Sanchez v. United States

413 U.S. 266 (1973) 8 NO.

Coolidge v. New Hampshire

403 U.S. 443 (1971) 6

Statutes BASCOM BOGLE,

19 U.S.C. § 482 3, 6, 7, 8 VOCLESORSE

: vs.

19 U.S.C. § 1496 3, 5, 8

UNITED STATES OF AMERICA,

21 U.S.C. § 841(a) (1) 6 Respondent.

21 U.S.C. § 952(a) 6 Ky

21 U.S.C. § 960(a) (1) 6

r Petition For Writ Of Certiorari

A 28 U.S.C. § 1254(1) 2 To The United States Court Of

Appeals For The Ninth Circuit,

Judgment Affirming Judgment Of

The United States District Court

For The Central District Of

California

The Petitioner Bascom Bogle respect-

fully prays that a Writ of Certiorari

issue to review the judgment and dépinion

of the United States Court of Appeals

\ for the Ninth Circuit entered in this

proceeding on March 15, 1977. The order

ii l.

denying the Petition for Rehearing in the

United States Court of Appeals for the

Ninth Circuit was filed on May 27, 1977.

/

C

OPINION BELOW

The opinion of the Court of Appeals,

an unreported memorandum opinion, appears

as Appendix A hereto. A copy of the

Order denying the Petition for Rehearing

in the United States Court of Appeals for

the Ninth Circuit is attached hereto as

Appendix B. The District Court's opinion

was not reported.

JURISDICTION

The judgment of the Court of Appeals

for the Ninth Circuit was entered on

March 15, 1977. A timely Petition for

Rehearing and Suggestion for Rehearing

En Banc was denied on May 27, 1977. This

Petition for Certiorari has been filed

simultaneously with an Application for

Extension of Time for Filing Petition for

Certiorari. This Court's jurisdiction is

invoked under 28 U.S.C. § 1254(1).

or DP eye we

rapes Ree Or

QUESTIONS PRESENTED

1. Whether warrantless border

searches are authorized solely by statute,

or are judicially created "exceptions"

to the general warrant requirement.

2. Whether the instant search ex-

ceeded the permissible statutory author-

ization.

3. Whether the statute authorizing

this search is overly broad.

4. Whether § 482 or § 1496 of Title

19, United States Code, governs border

searches.

STATUTORY PROVISIONS INVOLVED

Title 19, United States Code, § 482,

provides as follows:

"Any of the officers or per-

sons authorized to board or

search vessels may stop, search,

and examine, as well without as

within their respective districts,

any vehicle, beast, or person, on

which or whom he or they shall

suspect there is merchandise which

3.

is subject to duty, or shall have

been introduced into the United

States in any manner contrary to

law, whether by the person in

possession or charge, or by, in,

Or upon such vehicle or beast,

Or otherwise, and to search any

trunk or envelope, wherever

found, in which he may have a

reasonable cause to suspect there

is merchandise which was imported

contrary to law; and if any such

officer or other persons so auth-

orized shall find any merchandise

on or about any such vehicle,

beast, Or person, or in any such

trunk or envelope, which he shall

have reasonable cause to believe

is subject to duty, or to have ©

been unlawfully introduced into

the United States, whether by

the person in possession or charge,

or by, in, or upon such vehicle,

beast, or otherwise, he shall

seize and secure the same for

ersan.*

Title 19, United States Code, § 1496,

provides as follows:

"The collector may cause an

examination to be made of the

baggage of any person arriving

in the United States in order to

ascertain what articles are con-

tained therein and whether subject

to duty, free of duty, or pro-

hibited notwithstanding a declara-

tion and entry therefor has been

made."

STATEMENT OF THE CASE

This case arises from a search for

contraband conducted by a customs inspec-

tor at the Los Angeles International Air-

port on July 21, 1976.

Inspector Varesi was assigned that

day to examine baggage of passengers

deplaning Braniff Airlines Flight 922,

arriving directly from Lima, Peru.

Varesi testified that he decided, prior

to the plane's arrival, to search all

luggage on boaid for contraband. The

Petitioner was a passenger on that flight.

5.

As he passed through customs, Inspector

Varesi searched a suitcase belonging to

the Petitioner. Varesi cut through the

bottom of the suitcase and discovered

approximately 1,700 grams of cocaine.

The Petitioner was tried and convicted

for importation of cocaine (21 U.S.C.

§ 952(a), § 960(a)(1)) and possession

with intent to distribute cocaine (21

U.S.C. § 84l(a)(1)).

REASONS FOR GRANTING THE WRIT

Border Searches Are Governed By Title

19, United States Code, § 482.

At trial and before the Ninth Circuit

Court of Appeals, the Petitioner urged

the Court to adopt the ruling that war-

rantless border searches are governed by

Title 19, United States Code, § 482. No

reported case has ever held that such

searches fall within any well-recognized

"exception" to the requirement that

searches must be conducted pursuant to

warrant. In Coolidge v. New Hampshire,

403 U.S. 443 (1971), this Court articu-

lated the exceptions and justifications

for allowing searches without a warrant.

6.

No mention was made of "border searches".

The holding of the Ninth Circuit in this

case now expands on these "exceptions"

and includes border searches.

The Petitioner urged the Circuit Court

that the search had to be governed by .

Title 19, United States Code, § 482.

Every reported case discussing border

searches in the Courts of Appeal have

used this statute as justification for

the search. Yet the Ninth Circuit in its

opinion intimates that no statutory auth-

orization is required.

THE SEARCH IN THIS CASE WAS CON-

DUCTED IN CONTRAVENTION OF STATU-

TORY AUTHORIZATION

The Petitioner further argued at trial

and in the Circuit Court that Title 19,

United States Code, § 482, only authorized

searches upon a demonstrable showing of

"reasonable cause” to quote the statute.

Here, the customs Inspector stated that

he decided to search all luggage in ad-

vance of its arrival. No attempt was

made to justify his decision, nor was any

evidence admitted in the record establish-

ing what "reasonable cause" existed at

Ve

the time this decision was made.

TITLE 19, UNITED STATES CODE,

§ 482 IS OVERLY BROAD AND AUTH-

ORIZES “GENERAL WARRANTS"

The Petitioner argued at trial and

before the Circuit Court that § 482 was

overly broad in that it authorized

searches of luggage "wherever found",

again to quote the statute. Thus, this

ancient statute (1866) suffers from the

same infirmity as the statute this Court

ruled infirm in a similar situation in

Almedia-Sanchez v. United States, 413 U.S.

266 (1973).

TITLE 19, UNITED STATES CODE,

§ 1496 DOES NOT AUTHORIZE

SEARCHES FOR CONTRABAND

The Circuit Court stated that this

search was authorized by § 1496 of Title

19, United States Code. No other Court

has ever applied this section to border

searches. The Petitioner argued that

this section dealt with examination for

dutiable items, not searches for contra-

band. The Circuit Court's ruling is

unsupported by any reported decision,

8.

BRE:

and is clearly an immense extension of

statutorily authorized border searches.

It is furthermore clearly erroneous,

since that statute by its very language

does not deal with searches for criminal

violations.

CONCLUSION

For the foregoing reasons, the Peti-

tion for a Writ of Certiorari should be

granted.

Respectfully submitted,

CHESTER L. BROWN

Attorney for Petitioner

BROWN & NEWTON

Attorneys at Law

a da’

APPENDIX A

.

PRR 6s sy

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

Mar 15 1977

Emil E. Melfi, Jr. Clerk

U.S. Court of Appeals

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 76-3388

Ve

BASCOM BOGLE,

Defendant-Appellant.

)

)

)

)

) MEMORANDUM

)

)

Appeal from the United States District

Court for the Central District

of California

Be.ore: HUFSTEDLER, GOODWIN, and ANDERSON,

Circuit Judges.

Bogle appeals from his conviction for

He contends that his motion to suppress

unlawfully importing 1700 grams .. cocaine.

the cocaine should have been granted be-

cause it was the product of an illegal

search in violation of his rights secured

by the Fourth Amendment. The contraband

was found during the course of a search

of his suitcase by customs officials when

he arrived from Lima, Peru, in Los Angeles.

A-1l.

We reject his contentions.

The examination of Bogle's luggage by

customs authorities was authorized by 19

U.S.C. §§ 482 and 1496. Bogle claims

that the statutes are overbroad in that

the statutes authorize search of trunks

or suitcases "wherever found." Bogle's

Suitcase was found at the border pursuant

to an ordinary customs se rch. He is in

no position to contend that the applica-

tion of the statute to him is in any re-

spect overbroad. Of greater moment, how-

ever, Bogle does not have any Fourth

Amendment expectation of privacy in the

contents of his suitcase when he enters

the country from abroad and presents him-

self for customs inspection. "Neither

history nor contemporary concepts of dig-

nity suggests to anyone that he will be

free from official scrutiny on crossing

an international boundary. He must antic-

ipate that he will be detained temporar-

ily at the border. He will be interro-

gated. His vehicle, if any, and his

personal effects will be examined. Such

routine detention has never been equated

with an arrest, however that term is

A-2.

defined in other context, and such routine

inspections are not deemed unreasonable

searches. (E.g., Carroll v. United States

(1925) 267 U.S. 132, 154, ...7 Boyd v.

United States (1886) 116 U.S. 616, 623-624

. . -)" #£=(United States v. Guadalupe-Garza,

421 F.2d 876, 878 (1970)).

This was plainly a border search as that

term has been interpreted by the United

States Supreme Court in Almeida-Sanchez v.

United States, 413 U.S. 266 (1973). Bogle

has no expectation of privacy in the exten-

sive search that was conducted of his suit-

case that led to the discovery of the con-

traband. Accordingly, the search that

revealed the contraband was not in viola-

tion of his Fourth Amendment right to be

free from unreasonable searches and seiz-~-

ures and denial of the motion to suppress

based upon the Fourth Amendment was cor-

rect.

AFFIRMED.

‘ UNITED STATES COURT OF APPEALS

FOR THe NINTH CIRCUIT

FILED

May 27, 1977

Emil E. Melfi, Jr.

Clerk, U.S. Court of Appeals

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

)

Vv No. 76-3388

, ye Cr 76-967

BASCOM BOGLE, ) TH

| Defendant-Appellant. } ORDER

[

sgdiesuapeeane BEFORE: HUFSTEDLER, GOODWIN, and ANDERSON,

Circuit Judges.

i. The panel as constituted in the above

case has voted to deny the petition for

rehearing and to reject the suggestion

for a rehearing en banc.

The full court has been advised of the

suggestion for anen banc hearing, and no

judge of the court has requested a vote

on the suggestion for rehearing en banc.

Fed. R. App. P. 35(b).

The petition for rehearing is denied

and the suggestion for a rehearing en

banc is rejected.

t A TRUE COPY ATTEST 5/27/77 Emil E. Melfi,

Jr. Clerk of Court - by: Pat Naeushawe,

Deputy Clerk

B-1.