Petition — Pacee v. United States

FILED

JAN 18 1979

MICH AE, RODAK, JR., CLERK

IN THE

SUPREME COURT OF THE UNITED ST.

OCTOBER TERM, 1977

NO. yy7=1(923

A.C.PACEE,

PETITIONER,

Vv.

UNITED STATES OF AMERICA,

RESPONDENT .

KEVIN J. MCINERNEY

Baxley & McInerney

onan ino del Rio South,

Suite. 310

San Diego, California

92106

(714) 299-8480

Attorney for Petitioner

Opinion Below Page

-2

Jurisdiction 2

Question Presented 2-3

Constitutional Provision Involved 3

Federal Statute Involved 4

Statement of the Case 5-6

Statement of Facts 6-8

Reasons for Granting the Writ 8-11

Conclusion 11-12

Appendix A-Opinion of the United States

Court of Appeals for the

Ninth Circuit 13-18

Appendix B-Order of the United States 19

Court of Appeals for the

Ninth Circuit denying Petitioner's

Petition for a Rehearing and

Suggestion for a Rehearing en banc

ii.

Cases

Katz v. United States

389 U.S. 347 (1967)

Terry v. Ohio

392 U.S. 1 (1968)

Union Pacific Railroad v. Botsford

141 U.S. 250 (1891)

Statutes

Title 19, United States Code

Section 482

Constitutional Provisions

United States Constitution

Fourth Amendment

ll

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

@.C. PACEE,

PETITIONER,

UNITED STATES OF AMERICA,

RESPONDENT .

PETITION FOR WRIT OF CERTIORARI

TO THE UNITE) SFATES COURT

OF APPEALS FOR THE NINTH CIRCUIT

The Petitioner, A.C. Pacee,

respectfully prays that a writ of certiorari issue

to review the judgment and opinion of the United

States Court of Appeals for the Ninth Circuit

entered on November 8, 1977.

OPINION BELOW

The opinion and judgment of the United

Court of Appeals for the Ninth Circuit is

contained in an opinion entered on November

8, 1977. A copy of said opinion is attached

as Appendix A. The order of that court denying

a petition for rehearing and rejecting the sugq-

estion for a rehearing en banc, entered on ‘““cember

23, 1977, is attached as Appendix B.

JURISDICTION

On November 8, 1977, the United States

Court of Appeals for the Ninth Circuit entered

a judgment affirming petitioner's conviction for

violating Title 21, United States Code,

Section 841 (a) (1). Petition for rehearing

and suggestion for rehearing en banc was filed

with the Court on November 22, 1977 and denied

on December 23, 1977.

The jurisdiction of this court is invoked

pursuant, to Title 28, United States Code, Section

1254 (1).

QUESTION PRESENTED FOR REVIEW

1. Whether Customs Inspectors, in detaining

the petitioner at the Port of Entry longer than

was necessary to determine if he was carrying

contraband so that surveillance could be placec

on him after he entered the United States, ex-

ceeded the authority of Title 19, United States

Code, Section 482, and thus unlawfully detained

the Petitioner at the Port of Entry.

CONSTITUTIONAL PROVISION INVOLVED

United States Constitution, Amendment IV:

"The right af people to be secure in their

persons, houses, papers and effects, against

unreasonable searches and seizures, shall

not be violated, and no werrants 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.” United States

Constitution, Amendment VI: "In all crim

inal prosecutions, the accused shall enjoy

the right...to have campulsory process for

Obtaining witnesses in his favor, and to have

the assistance of counsel for his defense."

FEDERAL STATUTE INVOLVED

Title 19, United States Code, Séction 482,

"Any of the officers or persons authorized

to board or search vessels may stop, search,

and examine, as well without as within their

respective districts, any vehicle, beast,

or person, on which or whom he or they shall

suspect there is merchadise which is sub-

ject to duty, or shall have been introduced

into the United States in any manner con-

trary to law, whether by the person in

possession or charge, or by, in, or upon such

behicle or beast, or otherwise, and to search

any trunk or envelope, wherever found, in

which he may have a reasonable cause to suspect

there is merchandise which was imported contrary

to law; and if any such officer or other per-

son so authorized shall find any merchandise

on er about any such vehicle, beast, or person,

or in any such trunk or envelope, which he shall

have reasonable cuase to believe is sub-

ject to duty, or to have been unlawfully in-

troduced into the United States, whether by the

person in possession or charge, or by, in or

upon such vehicle, beast, or otherwise, he

shall seize and secure the same for trial".

STATEMENT OF THE CASE

On September 22, 1975, the Federal Grand

Jury for the Southern District of California,

returned a one count indictment (Criminal No.

76-0807) charging A.C. Pacee with a violation

of Title 21, United States Code, Section 841

(a) (1), possession of a controlled substance

(129.5 grams of heroin) with intent to dis-

tribute.

On October 26, 1976, appellant's motions

to suppress was heard before the Honorable

Willliam B. Enright. Om October 27, 1976, the

motion to suppress was denied.

On March 31, 1977, a jury trial commenced.

On April 1, 1977, the Petitioner was found

guilty as charged.

On April 1, 1977, the Honorable Leland C.

Nielsen ordered the Petitioner remanded to the

custody of the Attorney General or his auth-

orized representative to await sentencing.

On April 25, 1977, Pacee was sentenced

to a period of imprisonment for five years.

(C.R. 32). It was further ordered that in

addition to such terms of imprisonment, de-

fendant was required to serve a special parole

term of ten (10) years, as prescribed by

Title 21, United States Code, Section 841

(a) (1) (a).

STATEMENT OF RELEVANT FACTS

On September 1, 1976, at approximately

7:p.m., Petitioner, driving a 1975 Monte Carlo,

was stopped while entering the United States

at the Port of Entry, Calexico, California

and was directed to the secondary inspection area.

Petitioner's person and vehicle were searched and

no contraband was produced.

Because of the Petitioner's apparent

nervousness and the presence of two thousand

dollars on his person, Custams Inspectors

decided to keep the Petitioner under surveillance.

The Petitioner was detained at the secondary

inspection area with questions until surveillance

by Custom Patrol Officers could be placed on

him. At approximately 7:30 P.M., after the

patrol officers were in place, the Petitioner

was released. Custams Inspectors retained

possession of Petitioner's driver's license

until the partol officers were positioned to

maintain surveillance on the Petitioner and

was then told he could leave.

The patrol officers kept Petitioner under

surveillance for the next two days. During that

time the Petitioner made several circuitous trips

through the town of Calexico, passed through

the Port of Entry four more times on trips

between Calexico and Mexico and met with

several people as well as taking a motel room

in Calexico. A few hours after Petitioner's

last trip into Mexico he was stopped by

Custam Patrol Officers and Drug Engorcement

Administration Agents and a search of his

vehicle revealed heroin in the trunk.

REASONS FOR GRANTING THE WRIT

The Ninth Circuit Court of Appeals in its

opinion affirming the conviction of the Petitioner

— — 7

has decided a federal question in a way in

conflict with applicable decisions of this court.

Furthermore, the Ninth Circuit Court of Appeals

has decided an important question of federal

law which has not been, but should be, settled

by this court.

Title 19, United States Code, Section

48z authorizes that search of vehicles and

persons entering the United States. But

the Ninth Circuit has ratified an expansion

of that authority without regard to statutory

authority or applicable decisions of this

court. The court of appeals held that the .

Petitioner's detention at the Port of Fntry,

Calexico, California, was within the statutory

authority of the custams officers in that it

was not excessive. (See Appendix "A")

Petitioner respectfully submits that the

Court of Appeals, through its analysis of the facts

of this case, has erroded the protections of the

Fourth Amendment and thus coming into conflict

with such decisions as Terry v. Ohio, (1968)

392 U.S. 1 and Katz v. United States, (1967)

389 U.S. 347.

Petitioner recognizes that the government

is given more leeway at an international

border, but the authority of 19 U.S.C., Sec. 482

is still limited by constitutional safeguards

of the Fourth Amendment. Implicit in 19 U.S.C.,

Sec. 482, as limited by the Fourth Amendemt,

is that an individual can be detained at an

international border only for that length of

time which is necessary to determine if any

contraband is being smuggled into the United States.

Explicityly, 19 U.S.C., Sec. 482 states that

a person may be stopped and searched if the custams

officers suspect merchandise is being introduced

into the United States contrary to law. No

r

police statute which allows customs officers to

where does the statute state an individual may stop and detain individuals at will. The statute

be detained longer than is necessary to determine is very specific as to what the custams officers

the presence of contraband, and solely for the may do, and the custams officers authority

purpose of allowing surveillance to be set to detain the Petitioner terminated when

up on the suspect. no contraband was found on his person or

The facts clearly indicate the appellant in his vehicle.

was intentionally held at the border until CONCLUSION

surveillance by custams patrol officers could This court, as far back as 1891, has held

be established. The Ninth Circuit Court of that every person has the right to the control

Appeais, in its written opinion, states that, ane possession of his or her own person

"The customs officers detained the appellant unless by clear and unquestionable authority of

with questions until the patrol officers could law. Union Pacific Railroad v. Botsford,141

be notified. After the patrol officers were U.S. 250, 251 (1891). Petitioner submits that this

in position the appellant was released." court should grant this writ because the

See Appendix A. The court of appeals downplays authority of the custams officers in this

the additional ten minute detention of the ‘ case to detain the Petitioner in the manner

Petitioner. By detaining the Petitioner only they did is clearly questionable. This

ten minutes longer than was necessary to carry federal question has yet to be addressed by

out their statutory duty, the custams officers this court and because of the large number

intruded upon the Petitioner's Fourth Amendment of daily border crossings into this country

guarantees. 19 U.S.C., Sec. 482 is not a general there may be the possibility of wholesale

10

ll

violations of the Fourth Amendment.

This court should review this situation to deter-

mine if 19 U.S.C., Sec. 482 is being inappro-

priately applied by the government.

Also, this court should grant this petition

because the court of appeals, by upholding the

conduct of the custams officers, has decided

this question contrary to prior decisions of

this court, and this issue should now be

settled by this court.

It is respectfully submitted that the

issue herein presents a substantial question

arising under the Fourth Amendment and that

a Writ of certiorari should issue to review

the opinion of the lower court.

DATED: January 10, 1978

Respectfully submitted,

Kevin JJ McInerney

APPENDIX

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OS CO A A se EO ee a

mew eee en

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Appellee, ) NO. 77-2284

A.C. PACEE,

6

ee eee ee ee ee

Appellant. OPINION

Appeal fram the United States District Court

for the Southern District of California

Before: BROWNING, GOODWIN, and KENNEDY,

Circuit Judges.

PER CURIAM:

A.C. Pacee appeals his conviction of poss-

ession with an intent to distribute approximately

129 grams of heroin, in violation of 21 U.S.C.

841 (a) (1). The only question is whether the

evidence against appellant was obtained as a

result of an illegal border detention. We

13

hold that it was not, and affirm.

On September 11, 1976, at approximately

7:00p.m., the appellant was stopped while entering

the United States at the Calexico, California,

Port of Entry, and directed to the secondary in-

spection area. Appellant's person and vehicle

were searched. Neither search produced any con-

traband. But, due to the appellant's nervousness

and a large amount of cash discovered on his per-

son, the customs officers decided to keep the

appellant ‘under surveillance. The customs officers

detained the appellant with qujestions until the

patrol officers could be notified. After the

patrol officers were in position the appellant

was released. He left the Port of Entry at app-

roximately 7:30 p.m.

The patrol officers kept appellant under

surveillance for the next two days. During this

time, appellant made several circuitous trips

through the Port of Entry each time. He took

a motel roam in Calexico, met several people,

14.

and made several telephone calls. Approximately

two and a half hours after appellant's last trip

to Mexico, the patrol officers approached appellant

and, with his permission, searched his car.

Heroin was found in the trunk.

Appellant contends that his detention at the

Port of Entry in Calexico was unlawful because

it took longer than the time necessary tc con-

duct a search. Whether or not the officers had

the right to "stall" until the surveillance

was in effect, the delay produced no evidence

used against Pacee.

Two statutes provide authority for custams

officials to stop and search a person or vehicle

entering this country. Under 19 U.S.C. 482, a

custams officer may stop, search, and examine

any vehicle or person he suspects of carrying

merchandise subject to duty or introduced into

the United States contrary to law. No probable

cause is required. Alexander v. United States,

362 F.2d 379 (9th Cir.), cert. denied,385 U.S.

15

977 (1966). Under 19 U.S.C. 1582, a custams officer

has the authority to detain and search any person

coming into the United States fram a foreign

country. All that is necessary is a reasonable

Suspicion that the entrant is engaged in activity

which violates the custams laws. United States

v. Chavarria,493 F.2d 935 (5th Cir. 1974).

Appellant, recognizing the customs officers'

right to stop and search him, does not contest

his original detention and seerch. He camplains

only of the additional ten minute detention

after this search produced no contraband. The

record indicates that the appellant was still

being questioned during this latter period and

was not being detained solely to allow a sur-

vellance to be set up. Certainly, given appellant's

nervous actions and the large amount of cash,

there was a reasonable suspicion which justified

additional questioning. We do not believe the

detention period was excessive; it lasted only

thirty minutes in its entirety. The customs

16

officers violated no law in allowing a reasonable

time to elapse.

Furthermore, even if we assume that appellant

was unlawfully detained at the border, the heroin

was properly admitted into evidence. In order to

suppress the evidence, appellant must show that his

detention “'tended significantly’ to direct the

secondary investigation directly toward the evidence

in question." United States v. Brandon,467 F.

2d 1008, 1010 (9th Cir. 1972). See United States

v. Bacall,443 F.2d 1050, 1055-57 (9th Cir.),

cert. denied, 404 U.S. 1004 (1971). If the

government shows that the evidence is a product

of sufficiently independent sources, it need not

be suppressed. Wong Sun v. United States, 371

U.S. 471, 487-488 (1963). United States v. Bacall,

443 F.2d at 1056.

Appellant has not shown that his original

detention at the Port of Fntry was significant

in leading to the stop and consensual search of

his car two days later. Since the custams officers

17

had a description of appellant and his car, he

could have been placed under surveillance at any

time. Apvellant's constant activity in Calexico,

and his passage through the Port of Rntry four

times during the two days, gave the customs officers

a multitude of opportunities to observe him.

In all probability, even without the ten minutes

of extra detention, the search of appellant's

car would still have occurred.

The district court properly denied the motion

to suppress the evidence. The district court's

judgment is

Affirmed.

18

APPENDIX

" B"

oo ae

a ee 2 rte roms: «

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Appellee, NO. 77-2284

)

)

)

)

)

)

)

)

A.C. PACEE, )

)

)

Appellant. ORDER

Appeal from the United States District

Court for the Southern District of

California

Before: BROWNING, GOODWIN, and KENNEDY, Circuit

Judges.

The panel as constituted in the above case

has voted to deny the petition for rehearing and

to reject the suggestion for a rehearing en banc.

The full court has been advised of the sug-

gestion for en banc rehearing, and no judge of

19

the court has requested a vote on the suggestion

for rehearing en banc. Fed. R. App. 35 (b).

The petition for rehearing is denied, and the

suggestion for a rehearing en banc is rejected.