Petition — Reeve v. United States

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SUPREME COURT OF THE MICHAEL RODAK, JR., CLERK

UNITED STATES OF AMERICA

no....27.7 637

OCTOBER TERM, 1977

MICHAEL GEORGE REEVE,

DEREK TREVENNING HARRIS

and ROY DAVID THOMPSON,

Petitioners

UNITED STATES,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROGER 8. HANSON, Esq.

518 South Broadway

Santa Ana, California 92701

(714) 558-0921

Member of the Bar, United States

Supreme Court

OSCAR B. GOODMAN, Esq.

1600 Vailey Bank Plaza

300 South 4th Street

Las Vegas, Nevada 89101

(702) 384-5563

BARRY T. SIMONS, Esq.

448 So. Coast Highway

{ guna Beach, California 92651

(. 14) 497-1729

Attorney for Petitioners

TOPICALINDEX

PREAMBLE

OPINION BELOW

JURISDICTION

QUESTIONS PRESENTED FOR REVIEW

U.S. CONSTITUTIONAL AMENDMENTS INVOLVED

STATEMENT OF THE CASE WITH FACTS

MATERIAL TO THE CONSIDERATION OF THE

QUESTIONS PRESENTED

ARGUMENT

I THERE WAS NO PROBABLE CAUSE TO

BELIEVE THAT THE BROWN AND WHITE

CHEVROLET VAN CONTAINED CONTRABAND

AT THE TIME IT WAS STOPPED, THE

DRIVER FORCED FROM IT AT GUN POINT,

THE EXIT OF THE VAN BLOCKED BY

POLICE VEHICLES AND THE VEHICLE

SEARCHED WITHIN THE MEANING OF

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

Carroll v. United States, 267 U.S. 132, AND

THUS THE EVIDENCE SEIZED SHOULD

HAVE BEEN SUPPRESSED.

I! THE COURT ERRED IN FAILING TO

GRANT A PRETRIAL EVIDENTIARY

HEARING ON APPELLANT'S MOTION TO

SUPPRESS.

Il] PROBABLE CAUSE DID NOT EXIST AT

THE TIME OF THE ARREST AND SEARCH,

THUS INVALIDATING THE SEARCH AND

SEIZURE OF THE AIRCRAFT. 40

CONCLUSION 44

APPENDIX A 46

APPENDIX B 53

PROOF OF SERVICE 55

TABLE OF AUTHORITIES

Cases Page

Almeida-Sanchez v. United States,

413 U.S. 266, 269 (1973). 41

Bailey v. United States,

(1967) 128 U.S. App. D.C. 354, 389 F. 2d 305, 307-308). 17

Beck v. Ohio,

(1964) 379 U.S. 89, 91, 85 S. Ct. 223, 18 L. Ed. 2d 142. 17,40,41

Cardweil v. Lewis,

417 U.S. 581. 21

Carroll v. United States,

267 U.S. 132. 12,15,22,23

Chambers v. Maroney,

399 U.S. 42. 11,14,15,22,23,26,41

Coolidge v. New Hampshire,

403 U.S. 443.

Halpin v. Superior Court,

6 Cal 3d 885.

Henry v. United States,

(1959) 361 U.S. 98, 103, 80 S. Ct. 168, 4 L. Ed. 2d 134.

Jackson v. United States,

(Eighth Cir. 1969) 408 F. 2d 1165, 1168.

Katz v. United States,

389 U.S. 347 (1967).

Moran v. United States,

404 F. 2d 663, 666 (10th Cir. 1968).

Persico v. United States,

395 U.S. 911 (1969).

Plazola v. United States,

(Ninth Cir. 1961) 291 F. 2d 56.

Rios v. United States,

(1960) 364 U.S. 253, 80S. Ct. (43, 4 L. Ed. 2d 1968).

Solomon v. United States,

408 F. 1d 1306 (D.C. Cir., 1969).

United States v. Bates,

533 F. 2d 466, 469.

15,20

United States v. Baxter,

361 F. 2d 116 (6th Cir. 1966).

United States v. Bugarin-Cases,

484 F. 2d 2853 (9th Cir. 1973).

United States v. Dooling,

406 F. 2d 192 (2d Cir., 1969).

United States v. Johnson,

495 F. 2d 378, 381 (4th Cir. 1974).

United States v. Mauro,

507 F. 2d 802 (2d Cir. 1974).

United States vs. McClain,

531 F. 2d 431 (Ninth Cir. 1976).

United States v. McClain,

531 F. 2d 431 (Ninth Cir. 1976).

United States v. McCormick,

402 F. 2d 281 (Ninth Cir. 1974).

United States v. Ortiz,

422 U.S. 891, 896 (1975).

United States v. Portillo-Reyes,

529 F. 2d 844 (9th Cir. 1975).

United States v. Ramos-Zaragosa,

516 F. 2d 1041, 144 (9th Cir. 1975).

United States v. Robinson,

536 F. 2d 1298, per J. Hufstedler and J. Choy.

15,21

United States v. Selby,

(Ninth Cir. 1969) 407 F. 2d 241, 242.

United States v. Smith,

495 F. 2d 668 (10th Cir., 1974).

United States v. Smith,

527 F. 2d 692 (10th Cir., 1975).

United States v. Strickler,

490 F. 2d 378 (Ninth Cir. 1974).

United States v. Whitted,

454 F. 1d 642 (9th Cir. 1972).

U.S. Constitution

FOURTH AMENDMENT

FIFTH AMENDMENT

SIXTH AMENDMENT

Codes

18 U.S.C. 841(a) (1) and 846

28 U.S.C. 1254 (d)

Rules

F. R. Crim. P. 2e

F. R. Crim. P. 12

F. R. Crim. P. 12e

Supreme Court Rule 23

16,20

SUPREME COURT OF THE UNITED STATES

October Term, 1977

MICHAEL GEORGE REEVE,

DEREK TREVENNING HARRIS and

ROY DAVID THOMPSON,

Petitioners

vs.

UNITED STATES,

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEAL

FOR THE NINTH CIRCUIT

TO THE HONORABLE WARREN E. BURGER, CHIEF

JUSTICE OF THE UNITED STATES, AND TO THE

HONORABLE ASSOCIATE JUSTICES OF THE

UNITED STATES SUPREME COURT:

Comes now the petitioners, Michael George

Reeve, Derek Trevenning Harris, and Roy David

Thompson, by their attorneys Roger S. Hanson, and

Oscar B. Goodman, members of the bar of the United

States Supreme Court, and Barry T. Simon, member of

the bar, Supreme Court of California, asking for a writ

of certiorari directed to the United StateseCourt of

_ Appeals for the Ninth Circuit at San Francisco,

California, to review that certain published opinion,

United States v. Thompson, et al., ...... F. 2d 1350

(9th Cir. 1977), a copy of which is herewith attached to

this petition for certiorari.

Pursuant to Rule 23, Rules of the Supreme Court of

the United States, petitioners submit the following:

(a)

OPINION BELOW

The official report of the judgment herein sought

review is United States v. Thompson, ..... . F. 2d 1350

(9th Cir. 1977), dated June 27, 1977. A copy of tha.

opinion is attached as Appendix ‘‘A’’.

A petition for rehearing and suggestion for hearing

en banc was made and was denied by the same panel of

the U.S. 9th Circuit on August 25, 1977. A copy of the

Order of Denial is attached as Appendix ‘‘B’’.

(b)

JURISDICTION

The grounds upon which the jurisdiction of this

Honorable Court is invoked are:

(i) the opinion affirming petitioner's conviction

was entered June 27, 1977.

(ii) A rehearing and suggestion for hearing en

banc was denied by the U.S. 9th Circuit on August 25,

1977.

(iii) the statutory provision conferring jurisdiction

on this Honorable Court is 28 U.S.C. 1254 (d):

‘‘Cases in the courts of appeals may be reviewed

by the Supreme Court by the following methods:

(d) By Writ of Certiorari granted upon the petition

of any party to any civil or criminal case, before or

after rendition of judgment or decree... ”’

Jurisdiction of this Honorable Court is further

invoked because:

(1) The U.S. Court of Appeals for the Ninth Circuit

has internal gross inconsistency of authority among

panels of that court on the important national question

whether the halting of a motor vehicle at gun point and

by other vehicles blocking its path of exit constitutes an

arrest, for which probable cause to arrest must be

demonstrated, or whether the halting of a motor vehicle

at gun point and by other vehicles blocking its path of

exit constitute a mere temporary detention which may

be accomplished on a ‘‘founded suspicion.”’

(2) The U.S. Ninth Circuit Court of Appeals has

sanctioned a violation of Rule 12, Fed. R. Crim. P.,

which took effect on December 1, 1975, and by which

appellants’ case was governed by affirming a ruling by

the trial court that a motion to suppress evidence which

was timely filed on December 29, 1975, could be

delayed a hearing thereon until after the jury trial had

commenced, the jury had heard the case and the jury

had gone out to deliberate; no good cause was

advanced or demonstrated for delaying said motion

and said ruling violated the mandatory language of

Fed. R. Crim. P. 12e which provides:

‘‘A motion made before trial shall be determined

before trial unless the court, for good cause,

orders that it be deferred for determination at the

trial of the general issue or until after the verdict,

but no such determination shall be deferred if a

party’s right to appeal is adversely affected... .’’,

and where a conflict exists in the circuits now as to the

mandatory requirements of F. R. Crim. P. 12e.

(c)

QUESTIONS PRESENTED FOR REVIEW

1. Whether the stopping of a vehicle by blocking its

exit by police vehicles and by the ordering of the

occupants outside of the vehicle at gunpoint constitute

an arrest rather than a temporary detention, and thus

requiring that probable cause to arrest the occupants be

demonstrated by the government rather than a

‘‘founded suspicion’’ for temporary detention, a

question of national importance and an issue dividing

the United States Court of Appeals for the Ninth Circuit

in its various three-judge panels, and dividing the U.S.

Circuit Courts in the United States.

2. Whether (a) Federal Rule of Criminal Procedure

12e, i.e.,

‘‘A motion made before trial shall be determined

before trial unless the court, for good cause, orders

that it be deferred for determination at the trial on

the general issue or until after verdict, but no such

determination shall be deferred if a party’s right to

appeal is adversely affected. ..’”’

is mandatory in its directive that a motion to suppress

evidence timely made before trial cannot be deferred

until after the evidence has been concluded and the jury

sent out to deliberate, for a ruling thereon, where the

court does not first demonstrate that ‘‘good cause’’

exists for deferral of the ruling, and whether (b)

appellants were denied intelligent exercise of their

right to take the witness stand in their own defense in

their jury trial by the trial court refusing and neglecting

to hold an evidentiary hearing on their motion to

suppress evidence under F. R. Crim. P. 12e prior to

trial, so that the decision of the appellants whether to

testify or not could be intelligently and timely made,

and whether (c) this is plain error within the meaning of

Rule 52(b) or whether (d) this is Federal Constitutional

error under the Sixth Amendment right to call

witnesses in one’s own defense and have the assistance

of counsel for one’s defense?

3. Whether conflict in the Federal Circuits requires

the grant of certiorari by this Honorable Court in order

to resolve this gross conflict of federal authority at the

level of the U.S. Courts of Appeals of the various

circuits on the two foregoing issues?

4. Whether probable cause existed to search the

airplane piloted by petitioner Roy David Thompson.

(d)

UNITED STATES CONSITUTIONAL

AMENDMENTS INVOLVED

FOURTH AMENDMENT

AMENDMENT IV—SEARCHES AND SEIZURES

The right of the people to be secure in their

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

reasonable searches and seizures, shall not be violated,

and no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly

describing the place to be searched, and the persons or

things to be seized.

FIFTH AMENDMENT

AMENDMENT V—CAPITAL CRIMES; DOUBLE JEO-

PARDY; SELF-INCRIMINATION; DUE PROCESS;

JUST COMPENSATION FOR PROPERTY

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in

the land or naval forces, or in the Militia, when in actual

service in time of War or public danger; nor shall any

person be subject for the same offence to be twice put

in jeopardy of life or limb; nor shall be compelled in any

criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due

process of law; nor shall private property be taken for

public use, without just compensation.

SIXTH AMENDMENT

AMENDMENT VI—JURY TRIAL FOR CRIMES, AND

PROCEDURAL RIGHTS

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an

impartial jury of the State and district wherein the

crime shall have been committed, which district shall

have been previously ascertained by law, and to be

informed of the nature and cause of the accusation; to

be confronted with the witnesses against him; to have

compulsory process for obtaining witnesses in his

favor, and to have the Assitance of Counsel for his

defence.

(e)

STATEMENT OF THE CASE Wr 4 FACTS

MATERIAL TO THE CONSIDERATION OF THE

QUESTIONS PRESENTED

SUMMARY STATEMENT OF THE CASE

The case presents the recurring and troubling

concept of arrest on probable cause to arrest vis-a-vis

detention based on ‘‘founded suspicion’’ of criminal

conduct.

Appellants were driving two vans in the State of

Nevada when they were halted by law enforcement.

None of the arresting officers believed that either

van then contained contraband when the vans were

halted in broad daylight at a gas station in Boulder City,

Nevada.

We summarize the factual background without

detailed reference to the Reporter’s Transcript on

Appeal.

In this case, law enforcement officers routinely

surveilled a ‘‘dry lake’ in the vicinity of the

Arizona-Nevada border because they believed it was

used for the landing of aircraft carrying marijuana,

which would then discharge that marijuana into land

vehicles such as trucks or vans for distribution in the

United States.

In this case, the foregoing constituted the sole and

singular theory of modus operandi advanced at

petitioners’ trial by the United States Government.

The evidence indicated that Arizona law enforce-

ment officers observed a van on November 19, 1975, at

nighttime in the Red Lake area of Arizona. This was a

dry lake and was also often used for camping purposes.

They felt its presence there ‘‘suspicious’’ and an

all-night surveillance was set up.

Nothing happed at all. Indeed, at one time in the

evening of the 19th, the van was halted by police who

falsely represented to the van’s driver that they were

ranchers who feared that the van’s occupants were

‘cattle rustlers.’’ Nothing connected with that van

indicated marijuana smuggling; in particular, no smell

emanated from the vehicle, and law enforcement had

every opportunity to then ‘‘detain’’, or order the van’s

occupants outside for questioning or alleged investi-

gative activity.

In particular, all during the night, no aircraft

whatsoever were seen to come close to the area,

although it was the theory of the law enforcement that

an airplane would land and deliver marijuana-to the

waiting vans. On the following date, November 20,

1975, a ‘‘suspect’’ aircraft, piloted by Petitioner

Thompson, a Cessna, was seen flying low over the area

and was watched and pursued to where it eventually

landed, at Sheri’s Ranch, located outside Las Vegas.

Law enforcement searched that plane and allegedly

found a single seed never fully identified as a marijuana

seed, together with some particles of marijuana in the

passenger compartment. No load of marijuana was

discovered in that so-called ‘‘suspect’’ plane.

About that time, in broad daylight, near Boulder

City, Nevada, local law enforcement decided to halt the

two vans, at a gas station, which were under

‘‘suspicion.’’ Each officer that participated in the

halting of the vehicles that testified at the trial admitted

that they had absolutely no belief that the vehicle then

contained any contraband.

Officers ordered the occupants at gunpoint from

the two vehicles, a white top-brown body Chevrolet van

and a red Ford van. Petitioner’s codefendant, one Law,

wae the driver of the Chevrolet and a subsequent

search of the van revealed substantial quantities of

marijuana. Petitioner Reeve was the driver of the Ford

van which contained no marijuana. Police vehicles

blocked the exit of the vans from the place where they

were stopped.

Evidence presented at trial alleged that the

‘‘suspect’’ plane had hovered over the ‘‘suspect’’

vehicles while the ‘‘suspect’’ vehicles proceeded down

a highway.

However, evidence of aircraft-van contact in this

case was absolutely void and vacant and absent. No

evidence whatsoever showed that the ‘‘suspect’’

aircraft and the ‘‘suspect’’ vans had ever been in

contact, although the sole theory of the government

was that the ‘‘suspect’’ aircraft was to land and deliver

marijuana to the ‘‘suspect’’ vans driven by codefendant

Law and Petitioner Reeve, respectively.

While the evidence gathered after the arrest of the

pilot, Petitioner Roy David Thompson, and the arrest of

the drivers of the vans, Codefendant Law and Petitioner

Reeve might well support that a conspiracy to smuggle

existed among the defendants, the sole issue

Petitioners address themselves to was the legality of

the stopping of the vans on probable cause to believe

that they then contained contraband, and failure of the

U.S. District Judge to hold and determine a pre-trial

motion to suppress evidence per F. R. Crim. P. 2e.

Importantly, at the arrest and search of both the

airplane and the vans, the arresting officers at each site

did not know of the results of the opposite search. Radio

contact was then not possible because of mountains

blocking that type of communication.

Although timely pre-trial motions were made to

suppress the marijuana seized at both the sites of arrest

of the aircraft and the vans, the trial court refused to

hear such motions, allowed the entire matter to go to

trial, and held and denied the motions only after the

jury had gone out to deliberate.

Appellants were convicted of conspiracy to

distribute a controlled substance and possession with

intent to distribute a controlled substance, 18 U.S.C.

841(a) (1) and 846.

(f)

ARGUMENT

THERE WAS NO PROBABLE CAUSE TO BELIEVE

THAT THE BROWN AND WHITE CHEVROLET VAN

CONTAINED CONTRABAND AT TEE TIME IT WAS

STOPPED, THE DRIVER FORCED FROM IT AT

GUN POINT, THE EXIT OF THE VAN BLOCKED

BY POLICE VEHICLES AND THE VEHICLE

SEARCHED WITHIN THE MEANING OF Chambers

v. Maroney, 399 U.S. 42 and Carroll v. United States,

267 U.S. 132, AND THUS THE EVIDENCE SEIZED

SHOULD HAVE BEEN SUPPRESSED.

It would appear that the salient and probative

elements which must confront review of this major

issue in the case at bar are the following:

(a) Law enforcement Officer Willis of the

Kingman, Arizona Police Department, noticed several

male subjects gathered around some three vans in the

dry Red Lake area of Arizona in a camping scenario

before dusk on November 19, 1975. This was

purportedly ‘‘suspicious’’ and the observer law

enforcement officer departed to secure a four-wheel

drive vehicle and other equipment.

(b) He returned, and two other Kingman officers,

Lent and Chapin, performed surveillance all night,

looking for aircraft to land, for it was the theory of law

enforcement that an airplane would land and discharge

contraband (marijuana) to the waiting vans. No such

airplane ever came close all night nor was there ever

any contact between any aircraft and the ground

vehicles which were under suspicion.

1975, the brown and white van was halted; its driver

was defendant, Albert David Law; under the guise that

they were ranchers, they inquired into Law’s business

on the situs, und were told that Law was camping; Law

was told that the ranchers personal fear of ‘‘cattle

rustlers’’ forceu them to order him to leave their ranch

lands. Importantly, several minutes of conversation

through an open window failed to disclose any tell-tale

smell of marijuana emanating from the vehicle, and law

enforcement and Law departed without a scintilla of

suspicion being aroused. During this encounter, Law’s

brown and white Chevrolet van was forced off the

roadway by the ‘‘rancher’’ law enforcement officers.

(d) The next morning found a gold-white Cessna

airplane flying and hovering above and about the dry

Red Lake, but absolutely no contact existed or ensued

between the plane and the red Ford van or the brown

and white Chevrolet van.

Eventually that airplane was surveilled to land at a

Nevada Brothel, Sherry’s Ranch, and its pilot was seen

to enter that establishment to avail himself of its

facilities; no contact whatsoever was seen ever to have

occurred between the plane and the ground vehicles

under suspicion.

(e) One Stevens, a supervisor with the State of

Nevada Drug Enforcement set up a surveillance across

the street from a Mobil Gas Station where Petitioner

Reeve and Codefendant Law were seeking help for a

bad tail light in the brown and white Chevrolet driven

by Law; he unilaterally decided to then prevent the

vehicles from leaving the Mobil Gas Station and did so

by driving his vehicle across the street and halting the

exit of the vans, drawing his gun to force the occupants

to emerge from the vehicles.

(f) Shortly thereafter the vans were searched and

marijuana was found in the brown and white vehicle

driven by Albert David Law.

Under the theory of the law enforcement that the

brown and white Chevrolet van was to receive

marijuana from an airplane landing in the dry Red Lake

area, or at least in a similar neighboring dry lake, the

prosecution is faced with these salient irrefutable

truisms:

(1) At 10:40 p.m. on November 19, 1975, the

halting of the Chevrolet Van and discussions with

appellant Law evidently left law enforcement with the

conclusion that nothing was contained within the van,

for otherwise we assume that they would have then

arrested Law and searched the van. Chambers v.

Maroney, 399 U.S. 42.

(2) An all night surveillance revealed absolutely

no aircraft-van contact, for no aircraft ever came close

to the area, let alone ever landing. (See Footnote 1.)

Footnote 1: It is evident that the mere otherwise unconnected

association of vehicles, or a single vehicle, with another vehicle

even if that other vehicle is known to be involved in illegal activity,

does not elevate to ‘founded suspicion’’ or probable cause the

right to stop and seize the initial vehicle. Some sort of criminal

activity must be known about the first vehicle. United States v.

Barragan-Martinez, 504 F. 2d 1155 (Ninth Cir. 1974) Moreover,

the basis for the probable cause must be explained by the

evidence produced in Court. (504 F. 2d at 1156.) Moreover, while

it may be a popular theory of law enforcement that a ‘‘dry lake’’ is

a haven for aircraft-ground vehicle exchange of contraband, no

explicit trial testimony developed that this was the case and this

Court will not take judicial notice of such an alleged modus

operandi. 504 F. 2d 1155, 1156-1157 (Ninth Cir. 1974).

(3) In the morning at daylight, a certain Cessna

airplane was seen hovering about the dry lake from

about 8:00 a.m. to about 9:00 a.m., and then was

considered under suspicion since it was tailed by a

customs airplane; at this time, or circa thereat, the Ford

and Chevrolet vans eventually halted‘were felt to be

participating in some sort of maneuver with the

airplane, or vice-versa. Eventually the airplane

departed to land at the local Las Vegas fly-in house of ill

fame, Sherry’s Ranch.

Hence, no contact ever occurred that would

support the transfer of marijuana from the plane to the

vans, and therefore no probable cause existed to

support marijuana being then in the vans at the time

that they were halted and searched. They thus were

illegally halted and searched within the meaning of

Carroll v. United States, 267 U.S. 132 and Chambers v.

Maroney, 399 U.S. 42. See also United States v.

McClain, 531 F. 2d 431 (Ninth Cir. 1976), Coolidge v.

New Hampshire, 403 U.S. 443, and United States v.

McCormick, 402 F. 2d 281 (Ninth Cir. 1974).

We contend that a bona-fide, full-fledged arrest

occurred when Supervisor Stevens halted the vans at —

gun point and prevented their leaving; it is clear that

neither appellant Reeve nor Law were free to go and

had to subject themselves to the custodial atmosphere

of law enforcement. (See Footnote 2.) Clearly, this

constitutes an arrest within the meaning of the cases so

interpreting this factual gun-drawn, automobile-

blockage scenario in the U.S. Ninth Circuit, United

States v. Strickler, 490 F. 2d 378 (Ninth Cir. 1974).

Police vehicles blocked the exit of these van vehicles

and hence probable cause rather than a ‘‘founded

suspicion’’ must govern.

The 9th Circuit held in Strickler at 490

F. 2d 378, 380:

(1) To decide the case at bench, we need prescribe

precisely the point at which police action which

detains a suspect ceases to be a nonarrest seizure

and becomes an arrest; for we simply cannot

equate an armed approach to a surrounded vehicle

whose occupants have been commanded to raise

their hands with the ‘‘brief stop of a suspicious

individual in order to determine his identity or to

maintain the status quo momentarily while

obtaining more information’’ which was authorized

in Williams. (407 U.S. at 146, 92 S. Ct. 1921, 32 L.

Ed. 2d 610) The restriction of Strickler’s ‘‘liberty of

Footnote 2: It is clear that this circuit has held that the stopping of

a vehicle and a restraint on the freedom of movement constitutes a

“restriction of liberty of movement’’ and hence an arrest. Henry

v. United States, 361 U.S. 98, 103, 80 S.Ct. 168, 4 L.Ed. 2d 134

(1959). See United States v. Selby, 407 F. 2d 241, 242 (Ninth Cir.

1969)

Henry provides that ‘‘arrest on mere suspicion collides

violently with the basic human right of liberty.’’ U.S. v. Majorau,

474 F. 2d 766 (Ninth Cir. 1973)

Thus, Lovato, Lawrence, and Stevens arrested on their

suspicion of appellants and not on the belief that the vehicles then

contained marijuana.

movement’’ was complete when he was entered by

police and confronted with official orders made at

gun point. (See Henry v. United States (1959) 361

U.S. 98, 103, 80S. Ct. 168, 4 L. Ed. 2d 134; United

States v. Selby, (Ninth Cir. 1969) 407 F. 2d 241,

242; Jackson v. United States, (Eighth Cir. 1969)

408 F. 2d 1165, 1168) No significant, new restraint

was added when Officer Ripley, a few moments

later, handcuffed Strickler and formally pro-

nounced him ‘‘under arrest.’’ Thus the arrest was

completed before Officer Ripley reached the

window of the Cadillac. (Cf. Rios v. United States

(1960 364 U.S. 253, 80 S. Ct. (43, 4 L. Ed. 2d 1968;

Henry v. United States, supra; Plazola v. United

States (Ninth Cir. 1961) 291 F. 2d 56; Bailey v.

United States, (1967) 128 U.S. App. D.C. 354, 389

F. 2d 305, 307-308).

(2) The constitutionality of the police conduct,

therefore, depends upon whether, at the moment

the police surrounded Strickler’s automobile and

leveled a gun at him, the facts and circumstances

within their knowledge and of which they had

reasonably trustworthy information were sufficient

to warrant a prudent man in believing that

Strickler had committed or was committing a

criminal offense. (See Beck v. Ohio (1964) 379 U.S.

89, 91, 85 S. Ct. 223, 13 L. Ed. 2d 142; Henry v.

United States, supra, 361 U.S. at 102, 80 S. Ct.

168, 4 L. Ed. 2d 134).

Thus, it is clear that the Carroll-Chambers

‘‘probable cause to believe that the vehicle then

contained contraband’’ must be the hallmark of the

evaluation.

We then look to the admissions of the arresting

officers themselves to see whether they believed that

the vehicles then contained any contraband.

Participating in the arrest were officers Stevens,

Lovato, and Lawrence. Officer Lawrence testified as

follows from R.T.A. 349, line 8:

Q. ‘‘It had already landed. And what if anything

did the airplane contain neither you or Lovato or

Stevens knew at that point, did you?

A. Not right at that point; somewhere right along

there fairly close, I’m not sure, I don’t know exactly.

Q. But not at the time you went through the stop

and went through this business at the gas station?

A. No, sir.

Q. So ifthe airplane had marijuana on it or not

you had no knowledge at that particular point in time?

A. No. I just knew it was under control.

Q. And you had no knowledge at the time if the

vans had marijuana in them or not?

A. No.”’

Officer Lovato testified as follows from R.T.A. 648,

line 3:

Q. (By Mr. Sutton) You believed the aircraft and

the vans were going to meet at some place, and there

would be an exchange of a load?

A. That’s correct.

Q. And was there anything in your mind that

would suggest to you that the vans had anything?

A. No, sir.

Q. Now, when was the decision made to stop the

vans at the Mobile gas station?

A. Just prior to their exiting from the gas station,

we felt that we should stop the vans at that particular

time rather than attempt to stop them enroute.

Officer Stevens testified as follows from R.T.A.

689, line 1:

Q. (By Mr. Wright) ‘‘Then what did you do?

We had a short conversation.

Q. Whois ‘‘we?’’

A. Myself and the defendants.

Q. What was this conversation?

A. They asked a normal question, Why they were

stopped.

Q. And what did you say?

A. I told them they were stopped for their

activities the night before, and suspicious incidents,

and I specifically referred to the room registration, the

phony room registration.’

In fact, concrete efforts on the part of trial defense

attorney Raymond Sutton to learn exactly what

Stevens’ state of mind was when he ordered the

vehicles to be halted at gun point and by vehicular

blockage was effectively thwarted by the government.

From R.T.A. 751, line 25, we have:

Q. ‘‘Now up to that point, Agent Stevens, what

facts did you have in your mind or what knowledge did

you have from all agencies or sources that would

indicate to you something of a criminal nature was

about to occur?

MR. WRIGHT: I’m going to object to this, Your

Honor.

THE COURT: What’s your objection?

MR. WRIGHT: I don’t quite understand, does he

want everything in this Agent’s mind at that time?

MR. SUTTON: No. What facts, what knowledge,

had been imputed 4o Agent Stevens at that point?

MR. WRIGHT: This would all be hearsay, Your

Honor.

MR. SUTTON: That’s exactly right, it would be

hearsay. But it’s his state of mind, Your Honor.

THE COURT: Sustained.

We can only assume that this evidence, if

revealed, would be damaging to the government’s

probable cause equation, for it clearly was offered for

the state of mind exception to the hearsay rule in an

effort to show that the state of mind of Officer Stevens

was not based on concrete facts which would support

probable cause to halt the vehicles in an arrest and

search. It should therefore have been allowed into

evidence.

It is clear that under United States v Strickler, 490

F. 2d 378 (Ninth Cir. 1974), that this was not a

detention for investigative interrogation but was,

indeed, a full-fledged premeditated arrest where the

theory of the government was that the vehicle played a

certain role in their never-to-occur scenario of

aircraft-van interaction. Thus ample time existed to

secure a search warrant. Coolidge v. New Hampshire,

403 U.S. 443; United States v. McCormick, 402 F. 2d

281 (Ninth Cir. 1974); Halpin v. Superior Court, 6 Cal

3d 885; see Cardwell v. Lewis, 417 U.S. 581, specially

noting the dissents.

In fact, Stevens based his decision to halt the

vehicles solely on the ‘‘suspicious activity’’ that he had

heard of which had occurred ‘‘the night before.’’ From

R.T.A. 756, line 5-10, we have:

Q. ‘‘Okay. So at that point you wanted to stop the

vans because of the suspicious activity that you had

been informed about by those other agents?

A. Yes.

Q. Dating back to the night before?

A. Yes.”’

In fact, Stevens did not even know that the people

that were in the vans at the Mobil gas station were the

same individuals that had been seen at Red Lake the

night before. From R.T.A. 759, lines 8-15 we have:

Q. ‘‘Well, you had a guesstimate as a police

officer but you had no information to verify whether or

not the people, the individuals at the Red Lake area,

and the people that were at the gas station, were one

and the same now, did you?

A. Atthe time or before I talked to them?

Q. Yes, sir. At the time you stopped them at the

gas station?

A. No.’’

In fact, Stevens gleaned the bulk of his information

about the vans and their occupants from what he heard

testified to at their trial; From R.T.A. 761, lines 4-17,

we have:

Q. (By Mr. Sutton) Now, you’ve sat here in Court

this entire trial. Was there anything that was discussed

with you or information furnished you that you haven't

heard testified to in this Court, upon which you

believed that there had been suspicious activities?

A. A lotof it.

Q. More than was testified to here in Court?

A. No. I mean, there was a lot of it testified to

that I had no knowledge of until I heard it.

Q. You mean you’ve gained more knowledge

since you’ ve been here in Court?

A. Certainly.

Q. Than you had at that time?

A. Certainly.

In fact, Stevens admitted that he merely stopped

them because he was ‘“‘investigating their activities’’.

(R.T.A. 763, line 4) He thus clearly had no information

that would support probable cause to believe that the

vehicles then contained contraband. Carroll v. United

States, 267 U.S. 132; Chambers v. Maroney, 399 U.S.

42, 48, 26 L. Ed. 2d 419, 426, 90 S. Ct. 1975. Chambers

emphasizes over and over again that to halt and search

a vehicle requires ‘‘probable cause to believe that the

car contains articles that the officers are entitled to

seize,’’. . . ‘‘The measure of legality of such a seizure

is, therefore, that the seizing officer shall have

reasonable or probable cause for believing that the

automobile which he stops and seizes has contraband

(Restricted compounds such as marijuana) therein

which is being illegally transported.’’ Carroll v. United

States, 267 U.S. 132 at 153-154, 155-156, 69 L. Ed. at

551, 552.

As Chambers v. Maroney, 339 U.S. 542, 49, 26 L.

Ed. 2d 419, 427, 90S. Ct. 1975 makes clear:

‘‘The Court also noted that the search of an auto on

probable cause proceeds on a theory wholly

different from that justifying the search incident

to an arrest:

‘The right to search and the validity of the

seizure are not dependent on the right to arrest.

They are dependent on the reasonable cause the

seizing officer has for the belief that the contents

of the automobile offend against the law.’’ (267

U.S. at 158-159, 69 L. Ed. at 554)

Thus, really whether an ‘‘arrest’’ occurred (as it

did per 490 F. 2d 378) at the instant of halting the

vehicle is not quite as important as focusing on the key

issue which is whether there was probable cause to

believe that the vans then contained contraband at the

moment that they were halted. From the testimony of

Stevens, Lovato, and Lawrence, it is abundantly clear

that all three arresting officers had no such knowledge

and, indeed, under their theory that the hovering

airplane was to deliver the contraband, (and it

manifestly did not because it was constantly surveilled

by air until its landing at Sherry’s Ranch) it is quite

clear that the vans did not then contain the marijuana of

large quantity believed to be eventually forthcoming

from the plane if only the requisite contact would have

occurred.

We feel it is abundantly clear that no probable

cause to search the vans was demonstrated, and no

probable cause to arrest was demonstrated at the

critical time of the halting of the vans at gunpoint with

concomitant blocking of their exit by police vehicle at

the Boulder City, Nevada, Mobil gas station. Thus, the

marijuana seized should have been suppressed and a

directed verdict of acquittal entered.

Indeed, the United States Ninth Circuit in a later

case, United States v. Ramos-Zaragosa, 516 F. 2d 1041,

144 (9th Cir. 1975) stated, in distinguishing the vehicle

halt and arrest with probable cause to arrest and/or

search the vehicle from the subsequently developed

probable cause which subsequently developed after a

stop for brief investigatory detention,

‘‘Although we hold that the heroin should have

been suppressed (Henry v. United States, 361 U.S.

98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); United

States v. Strickler, 490 F.2d 378 (9th Cir. 1974);

Plazola v. United States, 291 F.2d 56 (9th Cir.

1961) and evidence seized on the basis of probable

cause which developed concurrently with a

reasonably brief investigatory stop pursuant to the

authority of Adams v. Williams, 407 U.S. 143, 92

S. Ct. 1921, 32 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 2d

889 (1968) is a difficult one to draw and follow.

Compare United States v. Bugarin-Cases, 484 F.2d

853 (9th Cir. 1974) with United States v. Strickler,

supra. In any event, an extensive review of the

authorities will serve no purpose here. Our position

can be stated simply. In this case there was an

arrest which was not based on probable cause.

The arrest was completed with the appellant and

his passenger complied with the order to get out of

the pickup. The encounter of the agents and the

appellant and his passenger was an arrest, as

opposed to an investigatory stop, because the

agents at gun point, under circumstances not

suggesting fears for their personal safety, ordered

the appellant and his passenger to stop and put up

their hands.”’

In United States v. Bugarin-Cases, 484 F. 2d 2853

(9th Cir. 1973), the distinguishing point is well taken

and is well illustrated; the vehicle was halted on a

‘founded suspicion that because it ‘‘rode low’’ in the

rear, and because it had a compartment in which aliens

might be concealed, it might then have an alien

concealed in it. When officers approached it, they saw

several packages via a floor board crack due to

displaced floor board panels. Because of the officers

extensive experience with ‘‘kilo packages’’ of mari-

juana, an arrest was then effected based on the then

developed probable cause. But it is clear that the initial

halting was an ‘‘investigatory stop’’ and not an arrest

as made clear in this circuit by Strickler, supra, and

Ramos-Zaragosa, supra. (See Footnote 3.)

Footnote 3: In United States v. Lar’ ‘n, 510 F. 2d 13, 14 (#4 Cir.

1974) this Circuit per Judges Hufstedler and Choy again affirmed

that:

. a confrontation with a vehicular blockage and drawn

weapons cannot be equated with an investigative detention.

(United States v. Strickler, 9th Cir. 1974) 490 F. 2d 378).”’

In United States v. See, 505 F. 2d 845, 855 (9th Cir. 1974) it was

emphasized that anyone not ‘‘free to leave’’ from an apprehension

situation was faced with an ‘‘arrest that was complete’’ Henry v.

United States, 361 U.S. 98.

Bulgarin-Casas also points up the ‘‘modus

operandi’’ of alien smuggling may support the

‘founded suspicion’’ to halt the cars. Contrast,

however, the case at bar, where the theory of the

prosecution that aircraft-ground vehicle marijuana

transfer was the modus operandi of the scheme: That

plan was known by the police involved to not have

occurred because of their extensive surveillance of the

plane and vehicles and because of the halting on the

previous evening of the van and a conclusion that the

van was then ‘‘clean’’, i.e., free of marijuana.

Naturally, if it was perceived that the van was not clean

we assume it would then have been searched and

Defendant Law then arrested after his extensive

interrogation to see if he was ‘‘rustling cattle’’.

In short, no ‘‘founded suspicion’’ could exist under

the theory of the police officers, and it is on that theory

of modus operandi that they must now be judged to see

if any ‘‘founded suspicion’’ could exist. In fact, since a

full-fledged arrest occurred, the sole criteria is of

course, probable cause to believe the vehicle then

contained contraband. As we have pointed out via the

testimony of the officers themselves, this state of mind

did not exist and not a single officer believed at the time

of arrest that the vehicle them contained any

contraband. Under Carroll, supra, and Chambers v.

Maroney, 399 U.S. 42, supra, that query is the deciding

benchmark.

Indeed, officer Stevens (R.T.A. 689) admitted that

his sole information came from what another officer had

relayed to him about ‘‘activities’’ of the previous night.

This can not be sufficient in the absence of probable

cause possessed by the initiating officer, who plainly

had even less probable cause than did officer Stevens,

who was to admit that the bulk of his knowledge of the

case came from his listening to the other witnesses

testify in Court!!!! See also, United States v. Robinson,

536 F. 2d 1298, per J. Hufstedler and J. Choy.

While a known type of modus operandi may

support an arrest where all elements of the modus

operandi appear to be present (e.g., see United States

v. Bates, 533 F. 2d 466, 469: car was sighted twice at a

warehouse), there the smuggling modus operandi was

someone leaving it at the warehouse at the border and a

vehicle arriving later to pick it up and take it further

north into the interior of the United States; the

elements of the modus operandi were apparently

complete when the car arrived late at night at the

warehouse.

It must follow that where the suspected modus

operandi is aircraft supplying marijuana to land

vehicles, one can hardly believe and allege that

probable cause to believe that the land vehicle contains

marijuana at the time of search is created by the known

absence and hiatus of failure of the plane and the land

vehicle to make contact! !!! That hiatus is what occurred

in the instant case, and it is surely that hiatus which

eS 2b ee ee ee

ne renee of

makes fatal any alleged probable cause under the

modus operandi theory advanced by the government in

the instant case now before the Court.

Moreover, it is apparent that an arrest can take

place under federal law without articulation of formal

words to the arrestee; actions often speak louder than

words.

No formal words are required nor is a declaration

necessary at the time of arrest.’’ Moran v. United

States, 404 F. 2d 663, 666 (10th Cir. 1968); United

States v. Baxter, 361 F. 2d 116 (6th Cir. 1966); United

States v. Johnson, 495 F. 2d 378, 381 (4th Cir. 1974).

Certiorari must be granted.

THE COURT ERRED IN FAILING TO GRANT A

PRETRIAL EVIDENTIARY HEARING ON

APPELLANT’S MOTION TO SUPPRESS

United States v. Whitted, 454 F.2d 642 (9th Cir.

1972) presented a case dealing with a District Court’s

power to reverse its prior ruling on a motion to dismiss

an indictment for grand jury prejudice. In holding that

the District Court did not have that power, the Court of

Appels examined Fed. Rules of Criminal Procedure

12(b) and noted that it ‘‘requires the District Court to

determine the motion before trial unless special

circumstances exist.’’ Whitted, supra at 644. The court

found United States v. Dooling, 406 F.2d 192 (2d Cir.,

1969) cert. den sub. nom. Persico v. United States, 395

U.S. 911 (1969) to be persuasive.

In Dooling, the Court of Appeals issued a writ of

mandamus directing the sentencing of defendants and

held that a district court judge does not have the

power to dismiss an indictment after the return of a

—— ee ee Oe ee ee

verdict of guilty upon grounds which were in part

considered and rejected without leave to renew before

trial by another district judge. Defendants made a

timely motion under Fed R. Crim. P. 12(b) (2). The

disposition of the motions was governed by Rule 12(b)

(4). In analyzing the provisions of this rule the court

stated that:

The evident purpose of these two provisions of

Rule 12(b) is to encourage the disposition before

trial of as many motions as possible which

challenge the right of the government to continue a

prosecution. Obviously this practice is greatly

preferable to considering such a motion only after

the completion of a lengthy trial. But Rule 12(b) (4)

recognizes that occasionally a decision must be

postponed until trial, since the merits of the motion

may depend on facts which will not be developed

until witnesses are called and evidence is intro-

duced. Dooling, supra, at 197.

The practice prior to the 1974 Amendments to Rule

12 indicates that, due to the policy considerations of

judicial and prosecutorial exonomy, motions under Rule

12 were required to be heard and determined prior to

trial absent some special circumstances.

The interaction between Rules 12 and 41, both as

amended, was discussed in United States v. Mauro, 507

F.2d 802 (2d Cir. 1974) a case involving defendant’s

untimely suppression motion.

Prior to 1972, Rule 4l(e) governed motions for

return of property and for suppression and provided

that the motions must be made prior to hearing or trial

unless opportunity therefore did not exist or the

defendant was not aware of the grounds for the motion

but the court had discretion to entertain the motion at

the trial or the hearing. The requirement of timely

motions served several purposes which are applicable

considerations in the case at bar:

Prompt objection to evidence which may have been

illegally seized serves other objectives as well. A

motion in advance of trial avoids the serious

personal inconvenience to jurors and witnesses

which would result from interruptions and delay

once the jury had been selected and the trial had

commenced. United States v. Bennett, 409 F.2d

888, 901 (2d Cir.) rehearing denied, 396 U.S. 852,

90 S.Ct. 113, 24 L. Ed. 2d 101 (1969). Cf. United |

States v. Allied Stevedoring Corp., 241 F. 2d 925,

931 (2d Cir. 1957) (L. Hand J.) The more telling

argument is that the waste of prosecutorial and

judicial resources occasioned by preparation for a

trial could be avoided if a timely and successful

motion were made in advance. United States v.

Salli, 115 F. 2d 292, 293, (2d Cir. 1940). In

addition, we cannot ignore the right of immediate

appeal provided to the Government by the

Omnibus Crime Control Act of 1968, as amended,

18 U.S.C.A. §3731 (Supp. 1974) (appeal from pre-

trial grant of motion to suppress; see also 18

U.S.C. §2518(10)(b) (wiretap evidence). This right

would be rendered meaningless if a request for

suppression could be postponed until mid-trial,

when the only alternative to abandonment of the

prosecution would be completion of a fruitless and

sometimes lengthy trial in the hope of an

ultimately successful post-trial appeal from the

granting of the suppression motion.

Mauro, supra at 806

In 1972 present Rule 41(f) was adopted and it

provided that suppression motions were to be made as

provided in Rule 12. In considering the inconsistencies

with regard to the timeliness aspect of,Rules 12 and 41

the court commented that ‘‘the apparent ellipsis is due

to the piecemeal adoption of rule changes rather than to

any conscious purpose on the part of Congress or the

rulemakers.’’ Mauro, supra at 806

Prior to the 1974 amendments to Rule 12 the

applicable provision with regard to a hearing on the

motion was Rule 12(b) (4)

Fed. R. Crim. P. 12

ene

(4) Hearing on Motion. A motion before trial

raising defenses or objections shall be determined

before trial unless the court orders that it be

deferred for determination at the trial of the

general issue. An issue of fact shall be tried by a

jury if a jury trial is required under the

Constitution or an act of Congress. All other issues

of fact shall be determined by the court with or

without a jury or on affidavits or in such other

manner as the court may direct.

In 1974 (effective Date December 1, 1975) Rules

12(c) and (e) were added and became the relevant

sections with regard to presentation, hearing and

determination of motions to suppress:

Fed. R. Crim. P. 12

sees

local rule, the court may at the time of the arraign-

ment or as soon thereafter as practicable, set a

time for the making of pretrial motions or requests

and, if required, a later date of hearing.

sss

(e) Ruling on motion — A motion made before

trial shall be determined before trial unless the

court, for good cause, orders that it be deferred

for determination at the trial of the general issue or

until after verdict, but no such determination shall

be deferred if a party’s right to appeal is adversely

affected. Where factual issues are involved in

determining a motion, the court shall state its

essential findings on the record.

The Advisory Committee Notes to the amendments

indicate that they were designed to make possible and

to encourage the making of motions prior to trial

whenever possible, and in a singie hearing rather than

in a series of hearings. The reference to issues which

must be tried by the jury in subdivision (e) was deleted

as unnecessary without any intention of changing

current law or practice. The considerations stated in

United States v. Maury, supra, at 806 appear relevant

at this point. Motions presented and heard in advance

of trial prevent the likelihood of interruptions at the

time of trial as well the waste of prosecutorial and

judicial resources occasioned by preparation for a trial

which could be avoided if a timely and successful

motion were made and heard in advance. In Mauro

concern was expressed concerning the possible

prejudice to the government’s right of immediate

appeal. Similar concern was apparently present in

Congress since Rule 12(e) was written to provide that

determination of the motion was not permissible if a

party's right to appeal was adversely affected. The

policy consideration in the orderly, unprejudicial

administration of justice dictate that pretrial motions of

this character be made, heard, and, in many instances,

determined prior to trial.

In Solomon v. United States, 408 F. 2d 1306 (D.C.

Cir., 1969) pretrial suppression hearings were dealt

with in the context of raising a Wade objection. Since

that case dealt with an objection of constitutional

dimension, it is analogous to the case at bar where

another constitutional objection (Fourth Amendment

rights violation) is raised. In Solomon, the Court of

Appeals observed that:

The proper way to raise a Wade objection is by a

motion to suppress identification testimony before

trial. That procedure allows a suppression hearing

and a decision on the disputed evidence before a

jury is empaneled, and promotes an orderly and

uninterrupted trial. A distinctly second-best pro-

cedure is a defense motion to suppress during trial.

That procedure at least allows decision of the con-

stitutional issue before fatally prejudicial testi-

mony comes before the jury.

Solomon, supra at 1309

This analysis requires determination of the motion

in order to prevent fatally prejudicial testimony to come

before the trier of fact. In the case at bar the court

refused to take evidence on the motion suppress until

the prosecution had rested its case. If a pretrial hearing

is not required the door is open for fatally prejudicial

testimony to come before the trier of fact, the

possibility that a denial of defendant’s right of

confrontation will occur, and as well, the probability

that the court’s determination of the motion will be

colored by objectionable evidence elicited at trial.

In another case dealing with an issue of

constitutional dimension the court required a pretrial

hearing. In United States v. Smith, 495 F. 2d 668 (10th

Cir., 1974) the Court of Appeals, in dealing with

defendant’s assertion of standing to challenge a Fourth

Amendment violation, concluded that:

The Fourth Amendment rights on which defendant

relies are personal rights which may not be

asserted vicariously. Ibid. at 230, 93 S. Ct. 1565.

The reservation in Brown of the ‘‘automatic’’

standing question means to us that one who

attacks a search must assert and establish a

personal right protected by the Fourth Amendment

and that when such an assertion is contested, ‘‘a

full hearing on standing,’’ Ibid. at 229, 93 S. Ct.

1565, must be held.

In the instant case, there was no hearing on the

motion to suppress. When it was renewed at trial,

the court impatiently denied the government

request to call a witness, ordered defense counsel

to ‘‘tell me how they got the evidence,’’ ignored

the prosecution statement of disagreement with

the defense, and then denied the motion without

bothering to say anything about standing. The

result was that the defendant had no opportunity

to challenge the search and seizure in a proceed-

ing independent of the trial to determine guilt. The

statements of counsel are no substitute for a

hearing. They showed a factual dispute. Such a

eS ee te

thee

dispute is determined on the receipt and consider-

ation of evidence, not comments of counsel.

Smith, supra at 670

After reversal, remand and retrial Smith again

appealed and the case was discussed in United States v.

Smith, 527 F. 2d 692 (10th Cir., 1975). In outlining the

case procedurally, the court interpreted Rule 12(e) to

require a pretrial hearing on a motion to suppress.

Pursuant to Fed. R. Crim. P. 41 Smith filed prior to

trial a motion to suppress the use at trial of the

money orders which formed the basis for the

prosecution. The motion to suppress was not heard

prior to trial as provided for by Rule 12[e] and at

the trial the money orders in question were

received into evidence over objection. Smith was

convicted and on appeal his conviction was

reversed. See United States v. Smith, 495 F. 2d 668

(10th Cir. 1974).

Smith, supra at 693. (Emphasis added)

In the present case, Judge Foley deferred

Appellant’s timely made motion to suppress until trial

(R. p. 182) The Court initially refused to even permit

the defense to call witnesses in support of the motion

(T. p. 714-815) but later rescinded (T. p. 817) and

decided to hear the motion and rule on it while the jury

was deliberating (T. p. 820).

Petitioners were neither asked to nor did they

stipulate to this procedure, nor did Petitioners stipulate

that the evidence presented at the trial by the

Government be considered in ruling on the motion to

suppress.

The Petitioners throughout the trial objected to the

introduction of evidence on Fourth Amendment

grounds. Furthermore, during cross examination of

witness at the trial, the defense was restricted in its

examination of issues which would have been relevant

during the motion to suppress. (See Footnote 4.) This

latter occurrence reveals the 6th Amendment confron-

tation deprivations caused by this procedure.

In the cases decided prior to the amendments to

the Federal Rules of Criminal Procedure it is indicated

that a determination of a motion to suppress, and by

implication a hearing on a motion to suppress, was

required before trial unless special circumstances

existed. The Court found no such special circumstances

in this record..

Due to the piecemeal Congressional approach to

amendment of the rules, legislative intent should be

Footnote 4: See e.g. T.p. 751-752

Q. Now, up tothat point, Agent Stevens, what facts did you

have in your mind or what knowledge did you have from all

agencies or sources that would indicate to you something of a

criminal nature was about to occur?

MR. WRITE: I'm going to object to this, Your Honor.

THE COURT: What's your objection?

MR. WRIGHT: I don’t quite understand, does he want

everything in this Agent’s mind at that time?

MR. SUTTON: No. What facts, what knowledge, had been

imputed to Agent Stevens at that point?

MR. WRIGHT: This would all be hearsay. Your Honor.

MR. SUTTON: That's exactly right, it would be hearsay. But

it's his state of mind, Your Honor.

THE COURT: Sustained.

determined and examined with great weight in an

application of the rules to the cases. Considerations of

judicial and prosecutorial economy with due regard for

the possibility of prejudicing a party’s rights should

influence any interpretation of the Rules, especially

Rules 41 and 12.

Additionally, in cases dealing with the application

of the rules to issues of Constitutional dimension,

greater weight should be given to policy considerations,

particularly where there is the possibility of fatally

prejudicing a party’s case.

In a suppression motion, as in the case at bar,

policy considerations practice under the former rules,

and from language in the rules themselves, as

interpreted by United States v. Smith, supra, it may be

concluded that a pretrial presentation and hearing and

determination of the motion is mandated. The judge in

the present case therefore erred in failing to grant a

pretrial suppression hearing. Indeed, the transcript

reveals several commends by the Court that he had

already made up his mind about refusing to suppress

even before he had heard defense evidence. Such

surely can not be the hall mark of an unbiased Federal

Judiciary in a serious criminal case. But far more

serious from a_ constitutional viewpoint is the

uncertainty left in the mind of the defendant whether

the defendant should take the stand in his own behalf

during the case in chief. If the defendant feels

optimistic over the outcome of the suppression motion,

he may, as here, waive his right to testify. But we

assert that he should not be put to that uncertain

decision due to the refusal of the trial court to hear and

adjudicate the timely filed pre-trial motion to suppress

evidence before the defense is required to put on their

case.

Moreover, a criminal defendant is entitled to the

same presumption of a neutral judge who makes no

decision on the evidence until he hears all of the

evidence that this same judge repetitively admonishes

the jury during trial — that they are to not make up

their mind on the evidence until they have heard that

evidence as offered from both sides. The instant

District Judge, prior to hearing any defense evidence,

which he illegally deferred hearing until the jury had

been sent to deliberate, announced to counsel that he

had already made up his mind.

Certiorari should be granted.

PROBABLE CAUSE DID NOT EXIST AT THE TIME

OF THE ARREST AND SEARCH, THUS

INVALIDATING THE SEARCH AND SEIZURE

OF THE AIRCRAFT.

The District Court, at the conclusion of the

evidentiary hearing on the motion to suppress, orally

denied the motion. The District Court made no findings

of fact in support of its order denying the motion,

except the oral statement that:

‘‘I do find here that there was consent given, twice

given: once to Souza and once to Franger to search

the aircraft.

‘‘But the principal ground I rely upon in denying

the motion to suppress is that there was probable

cause to seize and search the aircraft.’’

(Tr. 1185-86)

Therefore, this Court, like the Supreme Court in

Beck v. Ohio, 379 U.S. 89 (1964), should make its own

study (with the help of guidance of the Petitioner's

respectful suggestions) to conclude that the arrest of

THOMPSON and the search of the aircraft ‘‘cannot on

the record before us be squared with the demands of

the Fourth ... Amendment.’’

It is clear that in the absence of a warrant or

voluntary consent, the constitutional validity of the

search must depend upon the constitutional validity of

THOMPSON’s arrest. Whether that arrest was

constitutionally valid depends on turn upon whether at

the moment the arrest was made, the officers had

probable cause to make it — ‘‘whether at the moment

the facts and circumstances within their knowledge and

of which they had reasonably trustworthy information

were sufficient to warrant a prudent man in believing

that [THOMPSON] had committed or was committing

an offense.’’ Beck v. Ohio, supra, 85 S.Ct. at 225.

Under the ‘‘reasonable expectancy of privacy’’

doctrine of Katz v. United States, 389 U.S. 347 (1967),

the external visual perusal of the plane, which preceded

the actual physical entries by Souza and later Chapin

and Franger, constituted the beginning of the search,

which culminated with the ultimate seizure of the seed.

Certainly, no one could seriously take issue that

THOMPSON’s status at the time of the actual seizure

was that of being anything other than under arrest.

Notwithstanding the relative mobility of the

aircraft, it is submitted that probable cause is a

condition precedent even as to it, as the minimum

requirement for a lawful search. United States v. Ortiz,

422 U.S. 891, 896 (1975); Almeida-Sanchez v. United

States, 413 U.S. 266, 269 (1973). Chambers v.

Maroney, 399 U.S. 42.

The record reveals that at the time Petitioner

THOMPSON was placed in the custody of the Customs

agents, those agents were aware of only the following

specific articulable facts, together with rational

inferences from those facts, that reasonably warranted

suspicion that the aircraft was being used in an

unlawful enterprise. United States v. Portillo-Reyes,

529 F. 2d 844 (9th Cir. 1975):

On November 19, 1975, when an officer of the

Kingman, Arizona Police Department was on patrol in

the Red Lake, Arizona, area looking for narcotic

smugglers (Tr. 88, 89, 98), the Officer observed three

vehicles in the Red Lake area which he felt were

suspicious. He then left the area and went to the

Sheriff’s office, where he picked up a radio-equipped

vehicle and, at that time, notified his Sergeant of the

suspicious activity he had seen in the Red Lake area

(Tr. 101-103). Mojave County Sheriff's Officers

responded to the officer’s message and went to the Red

Lake area (Tr. 122, 202, 262). The officers, one of whom

was the aforementioned Officer Chapin, were in the

Red Lake area from the evening of November 19, 1975,

through the morning of November 20, 1975. The

officers observed a red van and a brown and white van

in the Red Lake area (Tr. 127, 130, 133, 134, 207, 209).

One officer had a conversation with the driver of the

brown and white van, who he identified as

THOMPSON’s co-defendant, Law (Tr. 133).

The officer also identified THOMPSON’s co-

defendant, Petitioner Reeve as the driver of the red van

he had observed in the Red Lake area (Tr. 136). During

the night, Officer Chapin forced a brown and white van

off the road and identified Law as the driver of the van

(Tr. 209, 210).

In the early morning of November 20, 1975, the

officers both observed a twin engine aircraft,

gold-white in color, fly around the Red Lake area for

approximately forty-five minutes to an hour (Tr. 142,

214). The officers were in radio communication with

other officers and, after observing the aircraft until it

went out of sight, one officer proceeded to head toward

Boulder Dam and Boulder City, Nevada. Enroute, that

officer observed a Government Customs aircraft

heading north toward Hoover Dam. Next, the officer

observed both vans parked at a motel in Boulder City,

Nevada (Tr. 146). The officer then received instructions

to drive toward Searchlight, Nevada, to check on

contact between the suspect aircraft and the vans (Tr.

147). He next received instructions to proceed north

and next saw a suspect aircraft at Sheri’s Ranch (Tr.

153). Officer Chapin also proceeded from the Red Lake

area into Boulder City, Nevada, and met in Boulder

City with other officers. Officer Chapin then proceeded

in the direction of Searchlight, Nevada, in search of the

suspect aircraft and when the suspect aircraft was

reported to be heading north, Chapin proceeded to

Sheri’s Ranch, where the suspect aircraft landed (Tr.

215-18).

Customs Agent and Pilot Hjerbe, piloting a

Customs aircraft, followed the suspect aircraft, which

he identified as a Cessna, from the Red Lake area to

Boulder Dam to Searchlight and then to Sheri’s Ranch

(Tr. 583). Customs agent Hjerbe was also in radio

contact with United States Customs Air Support Officer

Souza, who also flew into the Red Lake area at or about

the time the twin engine aircraft was circling Red Lake

(Tr. 590-591). The aircraft in which Souza was a

passenger also flew toward Boulder City, then

Searchlight and finally to Sheri’s Ranch where it landed

(Tr. 592).

At no time in question did the subject aircraft land

in Red Lake. Nor, at any time in question was there

contact made between the airplane and THOMPSON’S

purported ground-confederates. |

Pursuant to this factual setting there was no way

the Government agents could rationally infer there was

any connection between the aircraft and THOMPSON

with an illegal ‘‘smuggling operation’. An analysis of

all the facts, circumstances and . lawful rational

inference therefrom within the knowledge of the agents

at the moment of THOMPSON’S arrest in the field

outside of Sheri’s, mandate the conclusion that none of

the agents had probable cause to make the arrest,

therefore vitiating the fruits of the criticized search.

Certiorari should be granted.

CONCLUSIONS

(1) Because of the need to thoroughly and

scholarly define the differences in the concept of

‘‘arrest’’ vs. ‘‘temporary detention’’ where a vehicle’s

exit is blocked by law enforcement and the occupants

ordered from the vehicle at gun point, and because of

the clear conflict of authority in this area in the Circuits,

certiorari should be granted;

| APPENDIX ‘‘A’’

UNITED STATES of America,

(2) Because of the conflict of authority existing in Plaintiff-Appellee,

the U.S. Circuit Courts in the interpretation of the mi

December 1, 1974, revision to F. R. Crim. P. 12, now Roy David THOMPSON, aka, Larry

12e, concerning the time of holding pre-trial motions to Gene Madden, Defendant-Appellant.

suppress evidence, certiorari should be granted. UNITED STATES of America,

DATED: September 12, 1977, at Santa Ana, Plaintiff-Appellee,

California. i

Michael George REEVE and Albert

Respectfully submitted, David Law, Jr.,

Defendants-Appellants.

UNITED STATES of America,

Plaintiff-Appellee,

ROGER S. HANSON we

OSCAR B. GOODMAN and Derek Trovenning HARRIS,

Members of the Bar, U.S. Defendant- Appellant.

Supreme Court, Nos. 76-1821, 76-2041 and 76-2605.

United States Court of Appeals,

ond Ninth Circuit.

June 27, 1977.

BARRY T. SIMON, Appeal from the United States District Court for

Member of the Bar, Supreme the District of Nevada.

Court of California,

| Before CHAMBERS and CHOY, Circuit Judges,

Attorneys for Petitioners, and PECKHAM,* District Judge.

Michael Reeve, Derek T. Harris,

and Roy Thompson. CHOY, Circuit Judge:

*Honorable Robert F. Peckham, United States District Judge, for

the Northern District of California, sitting by designation.

Appellants contest their jury conviction under 21

U.S.C. §§841(a)(1) & 846 for conspiracy to distribute

marijuana. Reeve, Harris, and Law argue that the

search of their vans which uncovered 720 pounds of

marijuana was improper. Thompson claims that his

airplane was searched without his consent and without

probable cause. Reeve, Harris, and Thompson also

contend that the trial court committed reversible error

in postponing the hearing on their motions to suppress

until after the jury had begun deliberations. We affirm.

This case arises out of an all-night surveillance

effort by federal and state authorities, covering the

movement of two vans and an airplane in the

contiguous desert areas of Arizona and Nevada. The

following moming, the authorities stopped the two

vans forthe purpose of questioning the occupants. The

district court ruled that there was “founded suspicion”

to justify this investigatory stop, and appellants do not

seriously challenge that determination here. They do

argue, however, that the stop ripened into a

full-fledged arrest when an officer drew his weapon;

that, though the officers may have had sufficient

“founded suspicion” to justify the stop, they had no

probable cause to arrest; and that, since the arrest was

invalid, the fruit of the subsequent search of the vans

was inadmissible under Wong Sun v. United States,

371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). This

argument is without merit.

[1,2] A police officer attempting to make an

investigatory detention may properly display some

force when it becomes apparent that an individual will

not otherwise comply with his request to stop, and the

use of such force does not transform a proper stop into

an arrest. United States v. Richards, 500 F.2d 1025,

1028-29 (9th Cir. 1974), cert. denied, 420 U.S. 924, 95

S.Ct. 1118, 43 L.Ed.2d 393 (1975). See United States v.

Coades, 549 F.2d 1303, at 1305 (9th Cir. 1977); United

States v. Russell, 540 F.2d 839, 841 (9th Cir. 1976)

(Wright, J., concurring). In the instant case, a weapon

was not drawn until, after the officers had identified

themselves and ordered the vans to stop, one van

began to move and then suddenly lurched forward.

United States v. Ramos, Zaragosa, 516 F.2d 141, 144

(9th Cir. 1975), United States v. Larkin, 510 F.2d 13, 14

n.1 (9th Cir. 1974), and United States v. Strickler, 490

F.2d 378, 380 (9th Cir. 1974), relied upon by appellants,

did not involve investigatory stops that were properly

initiated through unarmed requests to stop and answer

questions and, therefore, are clearly distinguishable.

See generally United States v. Nevitt, 409 F.Supp.

1075, 1078-79 n. 10 (W.D.Mich.1976); United States v.

Diggs, 173 U.S.App.D.C. 95, 522 F.2d 1310, 1326-27 n.

5 (1975) (Justice, D.J., dissenting).

[3,4] After a brief period during which appellants

were questioned, the officers detected a strong odor of

marijuana coming from one of the vans. We have

repeatedly held that, “(i)f after a valid investigatory

stop probable cause arises, the search may then be

made,” United States v. Bugarin-Casas, 484 F.2d 853,

853 (9th Cir. 1973), cert. denied, 414 U.S. 1136, 94 S.Ct.

881, 38 1.Ed.2d 762 (1974). See e.g., United States v.

Russell, 546 F.2d 839, 840 (9th Cir. 1976) United States

v. Bates, 533 F.2d 466, 468-69 (9th Cir. 1976); United

States v. Portillo-Reyes, 529 F.2d 844, 850 (9th Cir.

1975), cert. denied, 429 U.S. 899, 97 S.Ct. 267, 50

L.Ed.2d 185 (1976); United States v. Rocha-Lopez, 527

F.2d 476, 478-79 (9th Cir. 1975), cert. denied, 425 U.S.

977, 96 S.Ct. 2181, 48 L.Ed.2d 802 (1976); United

States v. Moreno-Buelna, 524 F.2d 1129, 1132 (9th Cir.)

(Chambers J., concurring), cert. denied, 423 U.S. 1035,

96 S.Ct. 570, 46 L.Ed.2d 410 (1975); United States v.

Roeriquez-Alvardo, £10 F.2d 1063, 1064 (9th Cir. 1975).

And the detection of marijuana odor emanating from a

vehicle has been held sufficient in such situations to

give rise to probable cause to search. See Russell,

supra at 840; United States v. Laird, 511 F.2d 1039,

1040 (9th Cir. 1975); United States v. Ojeda-Rodriquez,

502 F.2d 560, 561 (9th Cir. 1974), cert. denied, 420 U.S.

910, 95 S.Ct. 830, 42 L.Ed.2d 839 (1975); Fernandez v.

United States, 321 F.2d 283, 286-87 (9th Cir. 1963). (See

Footnote 1.) Appellants were placed under arrest only

after the marijuana was discovered.

1. The district court also found that the officers had probable

cause to search the vans even before the investigatory stop and

the detection of marijuana odor. Given our disposition of the

issues, we have no need to review that finding.

[5] Next, Thompson, the pilot of the plane,

challenges the trial court’s findings both that he had

consented to the search of the plane and that, in any

event, there was probable cause to search it after the

officers on the scene were informed that the vans had

been seized in another location and were found to

contain the marijuana. Having reviewed the record, we

cannot say that these findings were clearly erroneous.

See United States v. Hart, 546 F.2d 798, 801-02 (9th Cir.

1976) (en banc), cert. denied, sub nom. Robles v.

United States, —— U.S. ——, 97 S.Ct. 1155, 51

L.Ed.2d 571 (1977); United States v. Fong, 529 F.2d 55,

58 (9th Cir. 1975); United States v. Agosto, 502 F.2d

612, 614 (9th Cir. 1974); United States v. Page, 302

F.2d 81, 85 (9th Cir. 1962) (en banc); United States v.

Patterson, 492 F.2d 995, 996 (9th Cir.), cert. denied,

419 U.S. 846, 95 S.Ct. 82, 42 L.Ed.2d 75 (1974);

Costello v. United States, 324 F.2d 260, 261 (9th Cir.

1963), cert. denied, 376 U.S. 930, 84 S.Ct. 699, 11

L.Ed.2d 650 (1964).

[6,7] Thompson also claims that his consent was

not voluntarily given because he was in a “custodial

type environment.” I is settled that a person in

custody may voluntarily consent to a search. United

States v. Watson, 423 U.S. 411, 424-25, 96 S.Ct. 820, 46

L.Ed.2d 598 (1976); United States v. Lemon, 550 F.2d

467, at 471 (9th Cir. 1977); United States v. Tolias, 548

F.2d 277, at 278 (9th Cir. 1977). We find no evidence of

duress or coercion in the ‘totality of all the

circumstances” in the record before us. Schneckloth v.

Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36

L.Ed.2d 854 (1973).

{8] Finally, the argument presented by Reeve,

Harris, and Thompson that the trial court committed

reversible error in postponing the hearinglon their

motions to suppress is also without merit. They made

ne objection below to the trial court’s adopting this

procedure, and, while it is preferable that such motions

be decided before trial, see United States v. Mauro, 507

F.2d 802, 806 (2d Cir. 1974), cert. denied, 420 U.S. 991,

95 S.Ct. 1426, 43 L.Ed.2d 672 (1975); United States v.

Whitted, 454 F.2d 642, 644 (8th Cir. 1972); Solomon v.

United States, 133 U.S.App.D.C. 103, 408 F.2d 1306,

1309 (1969); United States v. Dooling, 406 F.2d 192,

196 (2d Cir.), cert. denied sub nom. Persico v. United

States, 395 U.S. 911, 89 S.Ct. 1744, 23 L.Ed.2d 224

(1969), that procedure is not mandatory. A trial court

may, in its discretion, defer a hearing on a motion to

suppress made before trial for determination at trial or

after the verdict as long as no “party’s right to appeal is

adversely affected,” Fed.R.Crim.P. 12(e). See United

States v. Kir, 528 F.2d 1057, 1064 (5th Cir. 1976). But

see United States v. Smith, 527 F.2d 692, 693 (10th Cir.

1975). Obviously, appellants’ rights to appeal were not

“adversely affected” by the trial court’s decision to

postpone the hearing, and we can discem no other

prejudice to them that could possibly render the trial

court’s decision “plain error” under Rule 52(b). See

United States v. Jeffery, 473 F.2d 268, 270-71 (9th Cir.),

cert. denied, 414 U.S. 818, 94 S.Ct. 42, 38 L.Ed.2d 51

(1973); Herzog v. United States, 235 F.2d 664, 666-67

(9th Cir.) (en banc), cert. denied, 352 U.S. 844, 77 S.Ct.

54, 1 L.Ed.2d 59 (1956). (See Footnote 2.) AFFIRMED.

2. Appellants filed their motions to suppress on December 29,

1975, and trial commenced on February 3, 1976. Thus, the

revisions to Rule 12, Fed.R.Crim.P., which took effect on -

December 1, 1976 were applicable.

Former Rule 12(b)(4) dealt with the timing of hearings on

pretrial motions to suppress:

A motion before trial raising defenses or objections shall

be determined before trial unless the court orders that it be

deferred for determination at the trial of the general issue. . .

This Rule had been interpreted as allowing the trial court, in

its discretion, to postpone the hearing until trial or after the jury

had returned its verdict. See United States v. Covington, 395 U.S.

57, 60, 89 S.Ct. 1559, 23 L.Ed.2d 94 (1969); United States v.

Collins, 491 F.2d 1050, 1052 (5th Cir.), cert. denied, 419 U.S. 857,

95 S.Ct. 104, 42 L.Ed.2d 90 (1974); Dooling, supra, at 197. This

matter is now covered in revised Rule 12(e):

A motion made before trial shall be determined before trial

unless the court, for good cause, orders that it be deferred for

determination at the trial of the general issue or until after verdict,

but no such determination shall be deferred if a party's right to

appeal is adversely affected... .

The Advisory Committee Notes to Rule 12(e) and its legislative

history, see H.R.Rep.No.94-247, 94th Cong., Ist Sess. 7-8,

reprinted in U.S.Code Cong. & Ad.News 679-80 (1975), confirm

that, while retaining the rule that the decision to postpone the

hearing on a pretrial suppression motion lies in the sound

discretion of the district court, the amendments to Rule 12 were

intended to encourage pretrial determination of such motions. But

those sources also explain that the principal reason for preferring

that procedure is to preserve the Government's right, under 18

U.S.C. § 3731, to appeal an adverse ruling. See 8 J. Moore,

Moore's Federal Practice ¢ 12.04, at 12-24 (2d ed. 1976). See also

Mauro, supra at 806.

APPENDIX ‘‘B”’

“Cop y .

UNITED STATES COURT OF APPEALS,

NINTH CIRCUIT.

UNITED STATES of America,

Plaintiff-Appellee,

Roy David THOMPSON, aka, Larry

Gene Madden, Defendant-Appellant.

UNITED STATES of America,

Plaintiff-Appellee,

Michael George REEVE and Albert

David Law, Jr.,

Defendants-Appellants.

UNITED STATES of America,

Plaintiff-Appellee,

Derek Trevenning HARRIS,

Defendant-Appellant.

Nos. 76-1821, 76-2041 and 76-2605.

ORDER

Before CHAMBERS and CHOY, Circuit Judges,

and PECKHAM,,* District Judge.

The Panel as constituted in the above case has

voted to deny the Petition for Rehearing and to reject

the Suggestion for Rehearing en banc.

The full court has been advised of the Suggestion

for Rehearing en banc and no Judge of the Court has

voted to grant Rehearing en banc. F.R. App. P. 35(b).

The Petition for Rehearing is denied and the

Suggestion for Rehearing en banc is rejected.

F-I-L-E_p

25, 1977

ny MELFI, Jp

Ourt of Appeals

*Honorable Robert F. Peckham, United States District Judge, for

the Northern District o‘ California, sitting by designation.

PROOF OF SERVICE

State of California )

County of Riverside )

I am a citizen of the United States and a resident of the county

aforesaid: I am over the age of 18 years and not a party to the

within entitled action; My business address is 1509 N. Main,

Santa Ana, California 92701.

I served the within

PETITION FOR WRIT OF CERTIORARI

on the

interested parties in said action, by placing a true copy in each of

three sealec envelopes with postage thereon fully prepaid, in the

United States mail at Santa Ana, California, addressed to:

U. S. Solicitor General

Department of Justice

Washington, D.C. 20530

U.S. Attorney Federal Public Defender

District of Nevada U. S. Court House

300 Las Vegas Blvd. South 312 North Spring

U.S. Court House Los Angeles, California

Las Vegas, Nevada Att’n Carole Koontz, Esq.

I CERTIFY under penalty of perjury that the foregoin is true and

correct. Executed on 22 September 1977 at Santa Ana, California.

JACK GALLAGHER

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