Petition — Ivey v. United States

Se are] S.

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in the | MAR 15 197°

Supreme Coye bes ce0

of the

United States

OCTOBER TERM, 1977

no. @%=1292

WALKER FRANKLIN IVEY and

JAMES GILKISON

Petitioners,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

MICHAEL J. DODDO

950 South Miami Avenue

Miami, Florida 33130

Telephone: (305) 374-5233

Attorney for Petitioners

TABLE OF CONTENTS

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QUESTIONS PRESENTED .................

STATUTES INVOLVED .....................

REASONS FOR GRANTING THE WRIT ....

a

APPENDIX B — ORDER ON PETITION

PUT houcanccssscccessivess

APPENDIX C — TITLE 21, UNITED

STATES CODE, SECTION 841(a) (1) ....

TABLE OF AUTHORITIES

Beck v. Ohio,

uF ee fT) eer rr rrr ee

Glasser v. United States,

315 U.S. 60, 62 S.Ct. 457 (1962) ..........

Hall v. United States,

286 F.2d 676, 679 (5th Cir., 1960)

cert. denied, 366 U.S.910................

Sibron v. New York,

392 U.S. 40, 88 S.Ct. 1889 (1968) .........

United States v. Salinas-Salinas,

555 F.2d 479 (5th Cir., 1977) .............

Vale v. Louisiana,

399 U.S. 30, 90 S.Ct. 1669 (1970) .........

OTHER AUTHORITY

REE na decceascacsstdenacecncka

in the

Supreme Court

of the

United States

OCTOBER TERM, 1977

NO.

WALKER FRANKLIN IVEY and

JAMES GILKISON

Petitioners,

US.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioners, WALKER FRANKLIN IVEY and

JAMES GILKISON, pray that a Writ of Certiorari issue

to review the judgment of the United States Court of

Appeals for the Fifth Circuit, entered in the above-

entitled case on January 11, 1978.

OPINION BELOW

The Court of Appeals affirmed Petitioners convic-

tion without a written opinion. However, the written

notice as well as the denial of the Petition for Rehearing

and Hearing en banc is printed in the Appendix A and

B, at pp. 1 and 2, respectively.

JURISDICTION

The judgment of the Court of Appeals was entered

on January 11, 1978, (A-1). A timely Petition for Rehear-

ing was denied on February 13, 1978. (A-2) The jurisdic-

tion of this Court is invoked under 28 U.S.C. §1254(1).

QUESTIONS PRESENTED

1.

Whether this Court will review for the first

time whether the evidence presented was insuf-

ficient to prove the guilt of the Petitioners

beyond a reasonable doubt?

2.

Whether this Court will review for the first

time whether Drug Enforcement Administra-

tion (D.E.A.) Agents can stop and arrest

Petitioner, James Gilkison, without possible

cause and/or without any evidence that he or

the vehicle he was driving had been involved in

any illegal activity?

3.

Whether this Court will review for the first

time whether ‘“Exigent Circumstances” exist

to permit the search of a dwelling without a

search warrant on isolated property with no ob-

jective facts that destruction of contraband is

imminent or that securing the property could

not be done?

STATUTES INVOLVED

The Federal statutory provision involved is 21

U.S.C. 841(a) (1) and is set forth in Appendix C, infra,

(p.A-3).

STATEMENT OF THE FACTS

Walker Franklin Ivey, James Gilkison and Gerald

Ivey were charged in a one count indictment with

possessing with the intent to distribute 200 pounds of

marijuana in violation of 21 U.S.C. 841 (a)(1). The

charges against Gerald Ivey were subsequently dis-

missed by the Court on Motion by the Government. A

jury trial was held before The Honorable Joe Eaton, Dis-

trict Court Judge for the Southern District of Florica.

Both Petitioners were convicted. Walker Franklin Ivey

was sentenced to eighteen months confinement followed

by a two year special parole term. James Gilkison was

sentenced to twelve months confinement followed by a

two year special parole term. Their joint appeal was af-

firmed without opinion.

The evidence presented at trial and viewed in the

most favorable light for the government revealed the

following. On July 23, 1976, seven D.E.A. agents began

surveillance of isolated farm property. This property

consisted of a farmhouse, a barn and farm land. The sur-

veillance began at 6:00 P.M. D.E.A. Agent Peter Sarron

had the sole responsibility to “eyeball’’ the farm. Agent

Sarron was in a position approximately 500 yards from

the farmhouse, 300 yards from the barn and 75 yards

west of Loxahatchee R-~—*, *he only road leading to the

property. (T-91) The other agents were at various points

along Loxahatchee Road. Other than Agent Sarron, no

other agent was in a position to observe what occurred at

the farm.

Sarron was in a position that gave him an un-

obstructed view of the farmhouse, barn and its sur-

rounding property. (T-92) At approximately 7:30-8:00

P.M., Sarron saw six of seven people outside the

farmhouse partying. (T-93, 109) Sarron could not iden-

tify any of the people. (T-109) Also near the farmhouse

were five or six vehicles. (T-93) Two of these vehicles

were campers — one was an orange truck with orange

camper top, and the other was an orange truck with a

white top. (T-93) A green mustang was among the

remaining vehicles. (T-94)

At approximately 10:15 P.M., Sarron saw two or

three unidentified individuals leave the farmhouse, en-

ter the orange and white camper truck and drive to a

position approximately 200-300 yards south of the

farmhouse. (T-94, 95, 109) Fifteen minutes later, he ob-

served an airplane make a low pass over the farmhouse.

(T-94,113)! During the first pass, this aircraft blinked its

landing lights on and off several times. (T-94) The air-

craft circled and made two more higher passes and then

flew off in a northerly direction. (T-96) This aircraft was

under surveillance but was subsequently lost by the sur-

veillance aircraft and radar. (T-151)

After the first pass by the low flying aircraft, the

orange and white camper put on its lights and drove in a

zig-zag pattern in the field behind the farmhouse. (‘T-97)

The orange and white camper stopped five or six times

in the field. (T-97) After completing the zig-zag pat-

terns, the orange and white camper turned off its lights

and drove to the barn. (T-97) At the barn, the occupants

of the orange and white camper made a couple of trips to

the barn. (T-97) They returned to the farmhouse. (T-99)

‘During the motion to suppress hearing, Agent Sarron testified

that he believed it was a twin engine aircraft. However at trial he

was not sure how many engines it had.

There was no contact by the individuals in the orange

and white camper with the orange camper. (T-99) Agent

Sarron relayed his observations to the other surveillance

agents. (T-98)

Agent Sarron could not recognize nor identify the

people who were at the farmhouse during the party, the

occupants of the orange and white camper at 10:15 P.M.

to 10:30 P.M., nor the individuals who made the trips

from the orange and white camper to the barn. (‘T-110)

He did not see anything fall from the low flying aircraft

nor did he see anything being picked-up out in the field

behind the farmhouse. (T-109, 110)

At approximately 11:20 P.M., a single engine

Cherokee 6, Number 3762W, landed at the Boca Raton

airport. This was the same aircraft that D.E.A. Agent

Spence had seen the day before, July 22, 1976, when

Walker Franklin Ivey and another unknown male in-

stalled an extra fuel tank into it and had it fueled.

(T-119) The occurrence at Fort Lauderdale, the moving

of the Cherokee 6 to an unknown location as well as

Agent Spence’s information from another D.E.A. agent

that his confidential informant advised that Ivey was in-

volved in the “marijuana” business, prompted the sur-

veillance on July 23, 1976 of the farm property and the

Boca Raton Airport. Agent Spence had the Cherokee 6

searched. (T-142) Inside the plane were found two seats

and three individuals, the extra fuel tank and some life-

rafts. (T-142) Agent Spence returned to his surveillance

position on Lox Road and Route 441. (T-142)

At approximately 12:30 A.M., July 24, 1976, Agent

Sarron observed the two campers leave the farm. The all

orange camper left first followed shortly thereafter by

8

the same orange and white camper seen at 10:30 P.M.

(T-100) Agent Sarron did not know who was driving the

campers nor did he know whether the campers were

carrying anything. (T-110) Sarron joined the other sur-

veillance agents and followed both campers. (T-111) Ap-

proximately 4 miles east of the farm, on orders from

Agent Spence, a marked police unit stopped the orange

van. (T-143; MS-161) They arrested the driver, James

Gilkison and then searched the camper and found

wrapped in an orange container, 60 pounds of mari-

juana. (T-143) Agent Sarron and two other agents in-

dependently and simultaneously stopped the orange

and white camper and arrested the driver, Walker

Franklin Ivey, and his son, Gerald Ivey. (MS-67, 71)

Nothing was found in the orange and white camper.

(MS-67) All three persons were taken back to the farm.

A warrantless search of the barn revealed 150 pounds of

marijuana. (T-147,148)

The Government was also permitted to introduce

testimony from informant, James Bender and D.E.A.

Agent James Henderson about a proposal made by

Walker Franklin Ivey between May 19, 1976 and June

10, 1976, to have Bender fly a load of marijuana from

South America and drop it on the farm he had leased.

Bender related that he had met Mr. Ivey in November,

1975, and Mr. Gilkison, one or two months later. (T-40)

Bender was a pilot and had spoken to Ivey on May 19,

1976. (T-41) Ivey talked to Bender about bringing in

marijuana. (T-41) The marijuana (approximately 1000

to 1300 pounds) was to be packed in bundles 30 pounds

each, picked up in Colombia and placed in a Beagle air-

craft to be brought to Ivey’s farm. (T-45) On one occa-

sion, (June 4, 1976) Ivey, Gilkison, Bender and two other

men flew over Ivey’s farm and simulated the dropping of

the marijuana. (T-46) On another occasion, Gilkison

was introduced by Ivey as his head ground man and was

to pick up the marijuana. (T-48) During May 19, 1976

and June 10, 1976, Ivey met or spoke to Bender 4 or 5

times. Gilkison was present during two. Gilkison made

no statements to Bender. On June 10, 1976, after Bender

told Ivey that he would not fly for Ivey, there were no

more discussions about the possible trip. The next event

occurred on July 22, 1976, when Spence observed Ivey at

the Ft. Lauderdale Airport mentioned earlier.

10

REASONS FOR GRANTING THE WRIT

1.

The evidence was insufficient to prove the guilt

of the Petitioners beyond a reasonable doubt.

Taking the evidence in a light most favorable to the

Government, as we are requested to do under Glasser v.

United States, 315 U.S. 60, 62 S.Ct. 457 (1962), there

simply was no evidence adduced proving thai Ivey

possessed marijuana or had dominion and control over

marijuana on July 23, 1976. There was no evidence that

he had knowledge that marijuana was either in the barn

or in the orange camper. Likewise, there was no evidence

that James Gilkison had knowledge that the orange

camper or the barn contained marijuana.

Specifically, the Government proved that:

1. No marijuana or packages were being dropped

from the low flying aircraft on July 23, 1976;

2. No marijuana or packages were seen being

placed in the barn on July 23, 1976;

3. No marijuana, packages or persons were inside

the all orange camper on July 23, 1976;

4. Nocontraband was found in the Cherokee 7 air-

craft or the orange and white camper;

5. The Petitioners were not seen at the farmhouse,

the barn or in proximity to both campers except after

they were stopped and arrested;

11

6. Six to seven unidentified persons were seen

partying at the farmhouse that evening. People were

seen arriving and departing at various times between

6:00 P.M., July 23, 1976 and 1:00 A.M., July 24, 1976,

leaving one woman at the farmhouse at 1:00 A.M., July

24, 1976;

7. There was 60 pounds of marijuana in the orange

camper driven by James Gilkison and 150 lbs. in the

barn.

8. Ivey, two months earlier, discussed a plan to

import marijuana, but it had been terminated.

Since this is a circumstantial evidence case, the test

for sufficiency of the evidence is whether reasonable

minds could conclude that the evidence excluded every

reasonable hypothesis except that of guilt. Hall v.

United States, 286 F.2d 676, 679 (5th Cir., 1960), cert.

denied, 366 U.S. 910. Petitioners contend that the Fifth

Circuit did not require the Government to meet this test

or it overlooked the fact that the Petitioners were not

seen at the barn or on the farm that evening. Although

approximately 150 pounds of marijuana was found in a

barn over 100 yards from the farmhouse, the Fifth Cir-

cuit overlooked the fact that there was no evidence when

it was placed there, by whom, or who had dominion and

control over it. Furthermore, although 60 pounds of

marijuana was found in the camper driven by James

Gilkison, there was no evidence to show that he had

knowledge of its presence. The Fifth Circuit overlooked

the fact that there was no evidence: (1) to sh w who

owned the camper driven by Gilkison; (2) that es-

tablished who drove the camper to the farmhouse; and

(3) to connect the camper with the events that night.

12

It is clear that the Fifth Circuit overlooked and

failed to apply these facts to those found in United

States v. Salinas-Salinas, 555 F.2d 470 (5th Cir., 1977).

In Salinas-Salinas, supra, United States Customs was

“looking out” for a particular truck when it was ob-

served at 1:40 A.M. It had just crossed the International

Bridge into the United States from Mexico. There was

no evidence who owned the truck, who was driving the

truck or why a look-out had been placed on the truck.

During the course of the surveillance, the truck which

was accompanied by a red Torino, was lost but was last

seen going into an orange grove. When an officer turned

into the grove, its headlights picked up the truck and

several people scattering. In the same area was a small

house, a shed behind the house and several parked cars,

including the red Torino. A police officer entered the

grove and spotted Hernandez, fully dressed, about 5 or

10 yards from the truck. At first he was walking and

then began running into the grove. He was ordered stop-

ped and arrested. In the course of searching for the

remaining people, the agents entered the shed. The

lights were on and marijuana as well as a weighing scale

could be seen inside the shed from the door. The agents

also found two sets of clothing — lacking only the un-

derwear inside the red Torino. The agents went to the

house and knocked on the door. A few moments later,

Salinas dressed only in his underwear and T-shirt

opened the door. Salinas explained that he was sleeping

and that is why he did not answer the door right away.

The agents also determined that Salinas’ heart was

beating fast. When asked did he know why the agents

were there, he first said “no” and then said “maybe

marijuana’’. He was arrested. He was also asked why the

truck was in the field. Salinas said, “Probably mari-

juana. That’s what you would look for.”’ No one else was

13

apprehended. Both Hernandez and Salinas filed mo-

tions to suppress. The Government prior to trial dis-

missed the charges against Hernandez. On appeal

Salinas attacked the search and the sufficiency of the

evidence. The Salinas court did not reach the search

issue since it reversed the conviction because of the in-

sufficiency of the evidence. Application of Salinas-

Salinas leads to the same result in the case sub judice.

2.

D.E.A. Agents can not stop and arrest

Petitioner, James Gilkison, without probable

cause and/or without any evidence that he or

the vehicle he was driving had been involved in

any illegal activity.

Although the actions of the low flying airplane and

the orange-white camper may appear suspicious to law

enforcement agents, they are not sufficient facts and cir-

cumstances to warrant a prudent man in believing that

a crime had been committed or was being committed to

permit the arrest of James Gilkison or the search of the

orange van. Beck v. Ohio, 379 U.S. 89, 91 (1964).

The all orange camper was stopped and its driver,

James Gilkison, was arrested by D.E.A. Agents, who did

not know who was driving the vehicle and had no

evidence whatsoever that the al/ orange camper was in-

volved in any illegal activity. Without a written opinion,

it is difficult to determine the Fifth Circuit’s point,

however, it appears that the Fifth Circuit confused the

activity on the farm by the orange-white camper with

that of the all orange camper. There was no evidence to

connect the all orange camper with the activities on the

14

' farm. To permit the stopping of that vehicle without

more, substantially erodes the Fourth Amendment

protection against unreasonable searches and seizures.

The Fifth Circuit action is also contrary to United

States Supreme Court’s holding in Sibron v. New York,

392 U.S. 40, 88 S.Ct. 1889 (1968). In Sibron, supra, the

arresting officer had been observing Sibron continually

from 4:00 P.M. to 12:00 midnight. During this period of

time, he saw Sibron conversing with six or eight persons

who were known to be narcotic addicts. Later he saw

Sibron enter a restaurant and speak with three more ad-

dicts. The officer did not overhear any of the conversa-

tions nor did he see anything pass between Sibron and

the addicts. While Sibron was eating, the officer ap-

proached him and told him to come outside. The officer

said to Sibron,““You know what I’m after.” In response

Sibron mumbled something and reached into his

pocket. Simuitaneously, the officer thrust his hand into

Sibron’s pocket and found three packets of heroin. In-

itially, the prosecution argued that the officer had

probable cause to arrest Sibron, but as the Court noted

at 392 U.S., pages 62, 63, 88 S.Ct. pages 1902, 1903:

“. . . it is clear that the heroin was inadmissi-

ble in evidence against him. The prosecution

has quite properly abandoned the notion that

there was probable cause to arrest Sibron for

any crime at the time Patrolman Martin ac-

costed him in the restaurant, took him outside

and searched him. The officer was not ac-

quainted with Sibron and had no information

concerning him. He mere'y saw Sibron talking

to a number of known narcotics addicts over a

period of eight hours. It must be emphasized

15

that Patrolman Martin was completely

ignorant regarding the content of these conver-

sations, and that he saw nothing pass between

Sibron and the addicts. So far as he knew, they

might indeed ‘have been talking about the

World Series.’ The inference that persons who

talk to narcotics addicts are engaged in the

criminal traffic in narcotics is simply not the

sort of reasonable inference required to support

an intrusion by the police upon an individual’s

personal security. Nothing resembling

probable cause existed until after the search

had turned up the envelopes of heroin. It is ax-

iomatic that an incident search may not

precede an arrest and serve as part of its

justification, E.g., Henry v. United States, 361

U.S. 98, 89 S.Ct. 168, 4 L.Ed.2d 134 (1959);

Johnson v. United States, 333 U.S. 10, 16-17,

68 S.Ct. 367, 370, 92 L.Ed. 436 (1948). Thus the

search cannot be justified as incident to a law-

ful arrest.

Although Sibron did note that a mere stopping was

not improper, it did stress that:

“The police officer is not entitled to seize and

search every person whom he sees in the street

or of whom he makes inquiries. Before he

places a hand on the person of a citizen in

search of anything, he must have con-

stitutionally adequate, reasonable grounds for

doing so.”

There were no articulable facts for the D.E.A. Agents

to connect the unknown driver of the all orange camper

16

with the activities at the farm or that differentiated the

vehicle from the others seen on the farm and that left

without being stopped. The agents did not stop the vehi-

cles to question, they stopped the vehicles for the sole

purpose of arresting its occupants. This arrest and sub-

sequent search was contrary to the Fourth Amendment

and its fruits should have been suppressed.

3.

“Exigent Circumstances” do not exist to per-

mit the search of a dwelling without a search

warrant on isolated property with no objective

facts that destruction of contraband is immi-

a or that securing the property could not be

one.

The Fifth Circuit’s decision cannot be reconciled

with this United States Supreme Court’s decision in

Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1669 (1970).

In Vale, supra, this Court held that when a valid

arrest is made of a person immediately outside his home

a generalized belief, not based on articulable and objec-

tive facts, that someone might be inside the premises

who might have destroyed the narcotic cashe was not

sufficient to trigger an “exigent circumstance’”’ excep-

tion to the warrant requirement.

An examination of the record clearly establishes

that no such danger existed. First, there were six to

seven Government Agents in the immediate area of the

farm during its surveillance plus other agents at the

Boca Raton area. The agents also had access to local

17

police which they utilized when making the stop and

arrest at 12:30 A.M. Thus, there was sufficient amount

of agents to secure the farm which had one access road

and seek a search warrant after the arrest at 12:30 A.M.

of the Petitioners over 4'2 miles from the farm. Second,

after the suspicious activities at 10:30 P.M., no efforts

were made to obtain a search warrant although they had

a sufficient number of personnel. Third, no efforts were

made to stop and search vehicles leaving the farm until

the stopping of the two campers. This is significant since

it establishes that the agents were not concerned that

contraband was being removed from the premises.

Finally, the farm had one access road and only a woman

at the farmhouse following the arrest of the Petitioners.

There was no immediate danger of destruction of any

contraband nor does the record contain any. For these

reasons, the Fifth Circuit’s decision is contrary to this

Court’s holding in Vale, supra, and serves as another

basis for this Court to grant the Writ of Certiorari.

18

CONCLUSION

For the foregoing reasons, it is respectfully submit-

ted that a Writ of Certiorari should be granted by this

Court.

Respectfully submitted,

MICHAEL J. DODDO

Attorney for Petitioners

950 South Miami Avenue

Miami, Florida 33130

Telephone (305) 374-5233

19

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and accurate

copy of the within Petition for Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit was

mailed this 15th day of March, 1978, to the Solicitor

General, Department of Justice, Washington, D.C.

20530.

MICHAEL J. DODDO

Appendix

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 77-5300

Summary Calendar*

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WALKER FRANKLIN IVEY and JAMES GILKISON,

Defendants-Appellants.

Appeal from the United States District Court for the

Southern District of Florida

(January 11, 1978)

BEFORE AINSWORTH, MORGAN and GEE, Circuit

Judges.

PER CURIAM: AFFIRMED. See Local Rule 21.!

*Rule 18, 5 Cir., see Isbell Enterprises, Inc. v. Citizens Casualty Co.

of New York, et al., 5 Cir. 1970 431 F.2d 409, Part I.

\See N.L.R.B. v. Amalgamated Clothing Workers of America, 5 Cir.

1970, 430, F.2d 966.

App. 1

APPENDIX B

United States Court of Appeals

FIFTH CIRCUIT

OFFICE OF THE CLERK

February 13, 1978

TO ALL PARTIES LISTED BELOW:

NO. 77-5300 — U. S. A. -vs- Walker Franlin Ivey and

James Gilkison

Dear Counsel:

This is to advise that an order has this day been entered

denying the petition ( ) for rehearing, and no member of

the panel nor Judge in regular active service on the

Court having requested that the Court be polled on

rehearing en banc (Rule 35, Federal Rules of Appellate

Procedure; Local Fifth Circuit Rule 12) the petition ( )

for rehearing en banc has also been denied.

See Rule 41, Federal Rules of Appellate Procedure for

issuance and stay of the mandate.

Very truly yours,

EDWARD W. WADSWORTH,

Clerk

App. 2

By /s/ R. ADELINE: BARNES

Deputy Clerk

Mr. Michael J. Doddo

Mr. Stephen M. Pave

App. 3

APPENDIX C

§841. PROHIBITED ACTS A-UNLAWFUL ACTS

(a) Except as authorized by this subchapter,

it shall be unlawfvl for any person knowingly or

intentionally —

(1) to manufacture, distribute, or dispense, or

possess with intent to manufacture, distribute, or dis-

pense, a controled substance;

App. 4