# Petition — Reeve v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 435 U.S. 914

## Text

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.

11

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

21

17

41

17

17

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.

iv

15

15

15,21

41

41

27

ne

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

17

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

10

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
I
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

1]

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.

(c) At 10:40 p.m. on the evening of November 19,
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

12

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.

13

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).

14

(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

15

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.

16

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.

17

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.

18

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?

19

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,

20

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

21

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

22

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

23

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

24

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.

25

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.

26

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

27

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.

28

l
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

30

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

3]

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

(c) Motion Date. Unless otherwise provided by
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.

32

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

33

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

os

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

35

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.

36

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.

37

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,

38

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.

39

Il
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):

4]

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

42

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

43

(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.

46

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.

47

[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

48

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.

49

[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

50

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

51

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.

52

APPENDIX ‘‘B”’

“Cop y .

UNITED STATES COURT OF APPEALS,

NINTH CIRCUIT.

UNITED STATES of America,
Plaintiff-Appellee,
v.

Roy David THOMPSON, aka, Larry
Gene Madden, Defendant-Appellant.
UNITED STATES of America,
Plaintiff-Appellee,

v.

Michael George REEVE and Albert
David Law, Jr.,
Defendants-Appellants.
UNITED STATES of America,
Plaintiff-Appellee,

v.

Derek Trevenning HARRIS,
Defendant-Appellant.

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

53

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
A
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.

54

PROOF OF SERVICE

State of California )
ss
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

55

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2762%3A1. Public record. Not legal advice.