Petition — Chases v. United States

f FILED

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T2Z-821

MICHAEL RODAK, JR.. CLERK

In The Supreme Court of The United States

Term, 1977

t

ALEXANDER BENJAMIN CHASES

Petitioner.

* Vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Barton C. Shee.

3104 Fourth Ave: ue

San Diego, California 92103

Counsel for Petitioner

i.

SUBJECT INDEX

Pages

INTRODUCTION 1

OPINION BELOW 1

JURISDICTION 2

QUESTION PRESENTED 2

CONSTITUTIONAL PROVISION INVOLVED 2-3

STATEMENT OF THE CASE 3-8

REASON FOR GRANTING THE WRIT 8-13

CONCLUSION 13

APPENDIX "A" - Opinion of the

Ninth Circuit Court of Appeals 14-16

Sie

CITATIONS

Cases:

Burrows v. Superior Court,

Cal. (1974)

Dorman v. United States,

~ 435 F.2d 385 (D.c.Cir. 1970)

McDonald ve United States,

335 U.s. F511 (

Takahashi v. United States,

143 F.2d 118 (9th Cir. 1944)

Terry v. Ohio, 392 U.S. 1 (1967)

United States v. Basurto,

497 F.2d 781 (9th Cir. 1974)

United States v. Gamble,

473 F.2d 1274 (7th Cir. 1973)

United States v. Harris,

435 F.2d 74 (D.C.Cir. 1970)

United States v. Watson,

189 F.Supp. 776 (S.D.Cal.

1960)

Vale v. Louisiana, 399 U.S.

ong United States,

Sun v.

371 Us. 471 (

Pages

12

9,10

8,9

11

12

10

12

iii.

Statutes:

Title 21 United States

Section 841

Title 21 United States

Section 846

Title 21 United States

Section 952

Title 21 United States

Section 960

Title 21 United States

Section 963

Title 28 United States

Section 1254(1)

Constitutions:

Code

Code

Code

Code

Code

Code

United States Constitution,

Fourth Amendment

Rules:

Rules of the Supreme Court,

Rule 22(2)

2,3

2,3

2,3

IN THE SUPREME COURT OF THE UNITED STATES

Term, 1977

No.

ALEXANDER B. CHASES,

Petitioner,

-vs-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

The petitioner, ALEXANDER B.

CHASES, respectfully prays that a

writ of certiorari issue to review

the judgment of the United States

Court of Appeals for the Ninth

Circuit entered in the above case

June 24, 1977.

OPINION BELOW

The opinion of the Court of

Appeals of June 24, 1977, is not

reported, but is set forth verbatim

in Appendix "A" at pages 14 through 16.

JURISDICTION

On June 24, 1977, the Court of

Appeals of the Ninth Circuit entered

judgment affirming the criminal convic-

tion of petitioner for conspiracy to

import marijuana and possess marijuana

with intent to distribute, in violation

of 21 U.S.C. Sections 841, 846, 952,

960, and 963. The jurisdiction of this

Court is invoked under Title 28 United

States Code, Section 1254(1), and Rule

22(2) of the Rules cf the Supreme Court.

QUESTION PRESENTED

Is a pretective sweep search of a

residence and its detached garage,

executed to discern the presence of

unknown, possible co-conspirators,

justified solely on the basis that

government agents believe conspiratorial

activity to be in progress?

CONSTITUTIONAL PROVISION INVOLVED

The constitutional provision

involved is the Fourth Amendment to the

United States Constitution:

The right of the people to be

secure in their persons,

houses, papers, and effects,

against unreasonable searches

and seizures, shall not be

violated, and no Warrants

shall issue, but upon probable

cause, supported by Oath or

affirmation, and particularly

describing the place to be

2.

searched, and the persons or

things to be seized.

STATEMENT OF THE CASE

In an indictment, the grand jury

for the Southern District of California

charged petitioner ALEXANDER B. CHASES

and three others with conspiracy to

import marijuana and to possess mari-

juana with intent to distribute in

violation of 21 U.S.C. Sections 841,

846, 952, 960, and 963. Petitioner

pled not guilty and moved to suppress

evidence. The court denied that motion.

Following a stipulated facts trial,

the court imposed a sentence of five

years. Petitioner appealed to the Ninth

Circuit Court of Appeals and his con-

viction was affirmed in a memorandum

opinion filed June 24, 1977.

The facts of the case are as follows:

On the morning of October 18, 1975,

DEA special agents H. Curtis Burrell and

Owen Miller drove to an area in the

vicinity of Blythe, California. Burrell

had been informed that certain individuals

would pick up a quantity of "what pur-

ported to be marijuana” at an airstrip

in Imperial County on October 19, 1975.

Burrell had also been informed that an

undercover agent, a Mr. Farnan, had been

introduced into this group of individuals,

and that Mr. Farnan would be piloting

the airplane which was to deliver the

purported "marijuana" to the airstrip

[R.T. 5-6. All page references herein

are to the reporter's transcript.].

3.

Burrell and the other agents involved

in this operation knew that the substance

to be delivered would not be marijuana

but alfalfa, packaged so as to simulate

marijuana kilos [R.T. 5, 6, 33]. Burrell

and Miller located an abandoned airstrip

approximately twenty-five miles north of

the town of Blythe [R.T. 6].

At 4:00 a.m. on the 19th of October,

Burrell positioned himself on a hill to

the east of the airstrip. At approxi-

mately 6:25 a.m., an airplance landed on

the strip for about ten minutes [R.T. 7].

After the plane had departed,

Burrell and Miller observed a station

wagon and a motor home drive to the

point where the airplane had stopned,

and park there for a short time. Then

both vehicles left the area, proceeding

south [R.T. 7]. Burrell and Miller took

up surveillance of the two vehicles, aided

by a DEA cover plane and approximately

six other DEA vehicles.

The station wagon and the motor

home were under continuous surveillance

until they reached their ultimate destina-

tion in San Diego at approximately noon

on October 19 [R.T. 11]. The two vehicles

proceeded south on Highway 163, then

west on Friars Road and parked in the

lot of the Levitz Furniture Store [R.T.

12).

At this point, the station wagon and

the motor home were met by a third

vehicle, a blue Volkswagen, containing a

single occupant [R.T. 12]. The driver

4.

of the station wagon left that vehicle

and entered the Volkswagen [R.T. 23].

The mobile home then followed the Volks-

wagen to the residence of Randolph

Perkey [R.T. 28] at 1911 Denver Street,

San Diego [R.T. 12-13, 23].

When agents arrived in the vicinity

of Perkey's residence, they observed the

motor home backed into the driveway

adjacent to the house, about "four

paces" from a double-car garage located

on Perkey's premises [R.T. 18, 23], but

separated from, and standing somewhat

south of, the residence [R.T. 19].

DEA Agent Richenberger drove his

car southbound on Denver Street [R.T.

24], stopping for a period of about four

or five seconds in front of the resi-

dence [R.T. 25]. From that position,

Richenberger observed "three pairs of

legs coming and going from the motor

home" but was not able to observe if

anyone entered the garage [R.T. 24, 42].

Richenberger advised other DEA agents

as to what he had seen and the order was

given for the agents to move in [R.T.

23]. The motor home left as the agents

moved in and was off the premises at the

time the agents entered the residence

[R.T. 25]. The motor home was followed

a short distance and then stopped by

agents [R.T. 15, 26].

Agent Richenberger entered the grounds

of the residence and went to the area at

the rear yard [R.T. 25]. He was the

only agent to go into the back yard

area, the other agents entering the

S.

front of the house [R.T. 46]. As Richen-

berger was approaching the gate going

into the back yard, at a point between

the back door of the house and the

garage, Perkey came out through the back

gate [R.T. 25, 34]. Richenberger was

not able to tell whether Perkey had come

from the house or from the garage [R.T.

35].

Richenberger informed Perkey that.

he was a federal agent and, in placing

Perkey under arrest [R.T. 26], took him

over to the garage and made him brace

while leaning against the garage [R.T.

26, 31, 49]. Richenberger searched

Perkey for weapons and then handcuffed

him and took him into the house [R.T.

26, 47).

The arrest of Perkey took place at

approximately 12:33 p.m. [R.T. 39].

Although two other individuals, CHASES

and a Mr. Charles Chappell, had already

been arrested in the house, several

agents were still searching the house

[R.T. 32, 53], and also the garage,

allegedly to see if there was anyone

else on the premises [R.T. 47, 53].

This search was conducted even though at

the time the agents entered the premises

only three individuals had been indi-

cated as being present there [R.T. 48-

49], and the agents had no reason to

believe other suspects may have been

present.

Perkey was taken into the house

together with CHASES and Chappell and

advised of his rights [R.T. 26]. CHASES

6.

ss

and Chappell were then taken to the DEA

office for processing [R.T. 28]; however,

Perkey was kept at the residence because

the agents intended to contact the

United States Magistrate for a search

warrant [R.T. 28]. Several agents had

already left for the United States

Attorney's Office in an attempt to

obtain a search warrant for the resi-

dence [R.T. 39, 43].

When Perkey asked how long it would

take the agents to get a search warrant,

Richenberger informed him that it would

take several hours [R.T. 28, 41].

Richenberger said that the process could

be speeded up if Perkey would consent to

a search of the residence [R.T. 28, 43-

44]. Perkey was aware at that time that

DEA agents had been roaming in and about

the house [R.T. 53]. Perkey gave his

consent to a search of his residence,

signing a written consent prepared by

Richenberger, at 1:08 p.m. [R.T. 29].

This writing does not mention the garage

[R.T. 30]. Perkey was never asked to

consent to a search of the garage, and

Richenberger knew that the garage had

already been searched at the time the

consent was obtained [R.T. 4l, 43], and

that the alfalfa had already been seized

[R.T. 34].

In the course of their search of

the house, the agents found marijuana, a

Mexican sugar sack containing seven

cellophane wrappers, two small glass

vials containing a white powder, mari-

juana plants and seeds, a triple-beam

scale, various documents and an address

7.

—?

book belonging to Perkey, and a handbag,

later determined to belong to CHASES,

containing a marijuana cigarette and

an address book with phone numbers and

addresses of other persons [R.T. 3l,

33).

In the garage the agents discovered

twenty-five or thirty “Mexican sugar

sacks" containing alfalfa [R.T. 36]. No

marijuana was found in the garage [R.T.

31-36].

REASON FOR GRANTING THE WRIT

To resolve the following claim of

petitioner:

The search of a residence and

detached garage exceeds the scope of a

protective sweep search when government

agents’ sole justification for the

search is their belief that conspira-

torial activity is in progress.

There is no principle more

firmly rooted in our consti-

tutional jurisprudence than

that warrentless search is

presumptively illegal. Only

where the Government sustains

a heavy burden of demonstrating

that exigent circumstances

rendered impossible the secur-

ing of a search warrant or

conclusively proves that a

knowing and voluntary consent

to search was obtained may a

warrantless search stand and

the evidence therein seized be

used at the trial of its

owner.

United States v. Gamble, 473 F.2d 1274,

1276 (7th Cir. 1973).

The importance of a search warrant

to protect the privacy of one's resi-

dence has been emphasized in numerous

cases. In McDonald v. United States,

335 U.S. 451, 456 (1948), this Court

addressed itself to the issue of excep-

tions to the Fourth Amendment's warrant

requirement and stated: "We cannot be

true to that constitutional requirement

and excuse the absence of a search

warrant without a showing by those who

seek exemption from the constitutional

mandate that the exigencies of the

situation made that course imperative."

(Emphasis added.)

In Terry v. Ohio, 392 U.S. 1, 20-

21 (1967), this Court held that in order

to justify a warrantless intrusion, the

police officer must be able to point to

“specific and articulable facts" warrant-

ing suck an intrusion.

Dorman v. United States, 435 F.2d

385 (D.C.Cir. 1970), emphasized the

heavy burden placed on police to show

circumstances which avoid condemnation

of a warrantless search as “unreasonable."

Considerations specified by the Dorman

decision are that (1) a grave offense

is involved, particularly one that is a

crime of violence; (2) the suspect is

reasonably believed to be armed; (3)

9.

probable cause exists to believe that

the suspect committed the crime involved;

and (4) there is strong reason to

believe that the suspect is in the

premises being entered.

In Vale v. Louisiana, 399 U.S. 30,

34 (1969), the Court reiterated that

“only in a few specifically established

and well-delineated situations ... may

a warrantless search of a dwelling

withstand constitutional scrutiny.

- - + The burden rests on the State to

show the existence of such an exceptional

Situation." As set forth in Vale, those

exceptional situations include (1) the

officers’ response to an emergency; (2)

hot pursuit of a fleeing felon; and

(3) the possibility that the goods

ultimately seized are in the process of

destruction or are about to be removed

from the jurisdiction.

The testimony of the DEA agents in

the instant case did not demonstrate

the presence of any of the considera-

tions mentioned in either Dorman or

Vale. The only justification for the

"protective sweep search" ultimately

rests on the proposition that a con-

spiracy was believed to be in progress.

The Court of Appeals, in upholding the

search, stated: "(T]he possibility that

other conspirators were present was real

and far from insubstantial." (See,

Appendix "A" at 16.) (Emphasis added.)

Is a mere "possibility" of the

presence of other suspects sufficient

justification for warrentless intrusion

10.

into domains of privacy long accorded

full Fourth Amendment protection? One

can imagine a myriad of situations in

which suspicion as to the possible

presence of other suspects may arise.

Under the appellate court's rationale,

in such instances police would no longer

be required to articulate particular

"exigent circumstances" to justify their

warrantless search of a residence. In

any arrest involving a crime in which

more than one individual might potentially

be involved, a "protective sweep search"

of the entire premises, including addi-

tional detached buildings, would become

the standard operating procedure

of the police.

During the course of the post-

arrest search of Perkey's residence, and

especially upon entering the garage, the

DEA agents did not possess any reason-

able basis from which to infer that

anyone was hiding therein who might pose

a threat to their safety, or that evidence

pe in the process of destruction. Com-

e United States v. Harris, 435 F.2d

TD: C.Cir. 1970) with United States

v. Basurto, 497 F.2d 781 (9th Cir. 1974).

The articulation of “exigent circumstances"

which is a constitutionally mandated

precondition to lawful execution of a

non-consensual search of protected premises

is simply not shown by the record and

facts in this case.

There were no facts existent at the

time the DEA agents entered Perkey's

premises to indicate that individuals,

other than Perkey, CHASES, and Chappell,

were present in the house or the garage

ll.

[R.T. 48-49]. There are no facts in the

record to indicate that the DEA agents

believed Perkey, CHASES, or Chappell to

be armed, and in fact, no weapons were

found on the premises [R.T. 31-32].

The mere fact that DEA agents sus-

pected Perkey, CHASES, and Chappell of

involvement in conspiratorial activity

should not justify the broad and intru-

Sive search of the residence and of its

detached garage which took place.

Petitioner contends that suspicion,

belief, and even knowledge that a con-

spiracy is in operation is, alone, an

insufficient "exigent circumstance" to

authorize a warrantless and uncontrolled

invasion into the privacy of areas fully

protected by the Fourth Amendment.

In view of the fact that the "protective

sweep search" far exceeded any permis-

sible scope, it is further argued that

Perkey's later "consent" to search was a

product of the DEA agents' illegal

activity. The consent and the illegal

search are inextricably joined. Won

Sun v. United States, 371 U.S. 47

(1963); Takahashi v. United States,

143 F.2d 118, 122 (9th Cir. 1944);

United States v. Watson, 189 F.Supp.

776, 781 (S.D.Cal. 1560); Burrows v.

Su erior Court, 13 Cal.3d 2738, 251

4).

Should this Court agree with peti-

tioner that the initial “protective

sweep search" was a violation of peti-

tioner's Fourth Amendment rights, it is

respectfully submitted that this case

12.

should be remanded to the trial court so

as to assess the voluntariness of Perkey's

consent as affected by the government's

conduct.

CONCLUSION

For the foregoing reasons, petitioner

ALEXANDER B. CHASES respectfully prays

that a writ of certiorari issue to

review the judgment of the United States

Court of Appeals for the Ninth Circuit

in this case.

Dated: November 30, 1977

Respectfuliy submitted,

4

rton C. ela, "

13.

APPENDIX “A"

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 76-2981

ALEXANDER B. CHASES, MEMORANDUM

)

)

)

)

)

)

.

Defendant-Appellant. )

)

Appeal from the United States District Court

for the Southern District of California

Before: CLARK, Justice,* and TRASK and

WALLACE, Circuit Judges

Chases was convicted, after a court

trial, of conspiracy to import marijuana

and to possess marijuana with intent to

distribute in violation of 21 U.S.C. §§

841, 846, 952, 960, and 963. On appeal,

he contends that certain evidence used

against him should have been suppressed

because seized in violation of the Fourth

Amendment. We affirm.

*Associate Justice Tom C. Clark, United

States Supreme Court (Ret.), sitting by

designation. Justice Clark concurred in

the result after oral argument but did

not vote on the disposition due to his

untimely death.

14.

The government challenges Chases'

standing to raise the Fourth Amendment

issue. Chases counters with the argu-

ment that he was legitimately on the

searched premises and therefore has

standing. See Brown v. United States,

411 U.S. 223 (1973). The government

points out that, although Chases was

indeed legitimately on the searched

premises initially, he was not there

"at the time of the contested search

and seizure," id. at 229 (emphasis

added), of the handbag. By that time

government agents had taken him away.

It appears from the record, however,

that Chases was still present at the time

of the initial protective sweep which

took the agents into the garage where

the dummy marijuana was stored. We

hold, therefore, that Chases has standing

to challenge the initial protective sweep

or search. Because of our disposition

on the merits, we will assume, without

deciding, that Chases may also challenge

the second, post-consent search that

uncovered the handbag.

The initial sweep through the house

and garage immediately following the

arrest of Chases and his codefendants

was legitimate. In our view, the agents

were entitled to determine for self-

protective purposes if other members of

the conspiracy and any weapons were

present. See Warden v. Hayden, 387 U.S.

294 (1967). Chases skeen that it was

clear to the agents that only Chases,

Perkey and Chappell (who by then were

under arrest) were present and that self-

protection was a mere pretext for the

15.

sweep. We reject this argument. It

smacks too much of Monday morning quarter-

backing. The agents were not omniscient

and the possibility that other con-

spirators were present was real and far

from insubstantial.

The district court's determination

that Perkey's consent to the second

search was knowing and voluntary in

light of all the circumstances, see

Schneckloth v. Bustamonte, 412 U.S.

, 18 not Clearly erroneous.

United States v. Judge, 501 F.2d 1348

(9th Cir. 1974); United States v.

Marshall, 488 F.2d 1169, 1186-89 (9th

Cir. 1973). The district court had an

opportunity to observe and evaluate

the demeanor and testimony of parti-

cipating agents as well as codefendant

Perkey. Its findings are consistent

with the record in all respects.

Accordingly, we hold that the search

and seizure of the handbag, and its

introduction into evidence, were not

violative of the Fourth Amendment or

its exclusionary rule.

AFFIRMED.

16.