Amicus Brief — Torres v. Puerto Rico

| FILED

6 1978

IN THE

Supreme Court of the United

Ocroper Term, 1978

AEL RODAK, JR., CLERK

No. 77-1609

-

Terry T. Torres,

Appellant,

—_Y —

CoMMONWEALTH OF Pverro Rico,

Appellee.

ON APPEAL FROM THE SUPREME COURT OF THE

COMMON WEALTH OF PUERTO RICO

BRIEF FOR THE

AMERICAN CIVIL LIBERTIES UNION,

AMICUS CURIAE

Bruce J. Ennis

Cuartes S. Sms

American Civil Liberties Union

22 East 40th Street

New York, New York 10016

Attorneys for Amicus Curiae

TABLE OF CONTENTS

Pages

TABLE OF AUTHORITIES ecocccccccoece § SS

INTEREST OF AMICUS coceeccecccee 1

STATEMENT OF THE CASE Ce tee eee renee 3

SUMMARY OF ARGUMENT eeocccecccccoce 5

ARGUMENT epecccocscocces§ SG

I. THE WARRANTLESS SEARCH AND

SEIZURE OF PERSONAL LUGGAGE

IN APPELLANT'S POSSESSION

WAS CONDUCTED WITHOUT PROB-

ABLE CAUSE, IN THE ABSENCE

OF EXIGENT CIRCUMSTANCES,

AND IN DIRECT VIOLATION OF

APPELLANT'S FOURTH AMENDMENT

RIGHTS. eccscccsccess 10

II. ARTICLE V, SECTION 4 OF THE

CONSTITUTION OF PUERTO RICO,

WHICH PREVENTED THE MAJORITY

OF THE JUSTICES BEFORE WHOM

APPELLANT ARGUED HIS STATE

COURT APPEAL FROM ENTERING

AN ORDER REVERSING HIS CONVIC-

TION DESPITE THEIR OPINION

THAT THE CONVICTION WAS UNCON-

STITUTIONAL, VIOLATES THE

SUPREMACY CLAUSE AND ABRIDGES

APPELLANT'S RIGHTS TO EQUAL

PROTECTION AND DUE PROCESS. «e+ 24

A. The Supremacy Clause ....... 24

B. Equal Protection and

Due Process eesececesecces§ Oe

ii

TABLE OF AUTHORITIES

Cases:

Ableman v. Booth, 62 U.S.

oe —t—(—i( le Oe ROR 27

Almeida-Sanchez v. United States,

413 U.S. 266 (1973) i «eecees 5, 6, 16, 19

Amesquita v. Hernandez-Colon,

518 F.2d 8 (lst Cir. 1975), cert.

denied, 424 U.S. 916 (1976) = «eeueeeees 14

Ballew v. Georgia, 435 U.S. 223 (1978).... 33

Briscoe v. Commonwealth Bank of Kentucky,

33 U.S. 118 (1834) = = — weeeee 35, 36

Calero-Toledo v. Pearson Yacht Leasing Co.,

416 U.S. 663 (1974) = = = —= wesecee 14-18

Califano v. Torres, 435 U.S. 1 (1978) -

Camara v. Municipal Court,

387 U.S. 523 (1967) = = —§ «weeeeee 21

Chimel v. California,

395 U.S. 752 (1969) eeceses 13

Commonwealth v. Aguayo,

83 P.R.R. 534 (1958) = -— «eecece 35

Coolidge v. New Hampshire, 403 U.S. 443

eo ee Ts 5S, ia

Courtney v. Williams,

oe er) 6U™C™C™~C~C<C;CS”*:*”*é‘«C eee 21

Douglas v. California,

Sve G8. Far (ares). + § ewecces 20

iii.

Doran v. Salem Inn, Inc.

4” 3 * |. a ee re 24

Dowd v. United States Ex. Rel. Lawrence

Cook, 340 U.S. 2046 (1951) cetececces §

Estate of Wilson v. Aiken Indus.,

cert. denied, 47 U.S.L.W. 3219

eee fe eee © ae a 1 el D en wen 26

Examining Board of Engineers, Architects

& Surveyors v. Flores de Otero,

Gan Gene Bee. taneee. - «= #sedeses 14-18

Feldman v. United States, 322 U.S. 487

(1944), reh. denied 323 U.S. 811 (1944).. 35

Fornaris v. Ridge Tool Co.,

400 U.S. 41 (1970) ceccces 6, 20

FTC v. Flothill Products, Inc.,

389 U.S. 179 (1967) seodeue Os On

Gates v. Henderson, 568 F.2d 830,

(2d Cir. 1977), cert. denied,

98 S.Ct. 775 (1978) seesotose an

Griffin v. Illinois,

351 U.S. 12 (1956) eee eeenene 30

Hicks v. Miranda, 422 U.S. 332 (1975) ... 24

Hoffman v. Pursue, Ltd.

420 U.S. 592 (1975) errr Ss ae

In Re Winship, 397 U.S. 358 (1970) ....... 21

iv.

Juidice v. Vail, 430 U.S. 327

Katz v. United States, 389 U.S

360 (1967)

(1977) ....

. 342,

Mapp v. Ohio, 367 U.S. 643 (1960) .......

Marshall v. Barlow's Inc., U.S.

, 56 L.Ed.2d 305, 318 (1978) oe ae

Mincy v. Arizona, U.S. , 57 L.Ed.

2d 290, 306 (1978)

27,

Mullaney v. Wilbur, 421 U.S. 684 (1975)

O'Berry v. Wainwright, 546 F.2d 1204

(5th Cir. 1976), cert. denied, 433

U.S. 911 (1977)

Ohio ex rel. Bryant v. Akron Metropolitan

Park Dist., 281 U.S. 74 (1830) ........

Parker v. Levy, 417 U.S. 733,

(1974)

744

People v. Caballero, 100 P.R.R. 146

(1971)

People v. Perez, 83 P.R.R. 518

(1961) 3

Prigg v. Pennsylvania, 41 U.S.

611-612 (1842)

Reid v. Covert, 354 U.S. 1 (19

Ross v. Moffitt, 417 U.S. 600

(1974)

See v. City of Seattle, 387 U.

541 (1967)

1, 32, 34,

539,

57) cccccce

Ss.

24

10

28

33

28

37

21

14

35

27

17

30

21

Smyth v. Ames, 169 U.S, 466 (1898) .....

Stone v. Powell, 428 U.S. 465 (1976)

S, 26, 27, 28, 29,

Terry v. Ohio, 392 U.S. 1, 39 (1968)

eeenvee 2, 12,

Testa v. Katt, 330 U.S. 386 (1947) ......

United States v. Brignoni-Ponce,

422 U.S. 873, 862 (1975) wcccccccee 18,

United States v. Chadwick, 433 U.S. 1

(1977) *eeeees8e? 5,

United States v. Craemer, 555 F.2d 594

(6th Cir. 1977) e*eereaeeeeneesese

United States v. Davis, 482 F.2d 893

(9th Cir. 1973) TITITEITTT EL

United States v. Diaz, 535 F.2d 130

(lst Cir. 1976) eecccecccoes

United States v. Doran, 482 F.2d 929

(9th Cir. 1973) sesceeoe 8%

United States v. Lopez, 328 F. Supp.

1077 (E.D.N.Y. 1971) eevee eoeeee

United States v. Martinez-Fuerte,

428 U.S. 543, 566 (1976) Ter rereTy

United States v. Meyer, 536 F.2d 963

(lst Cir. 1976) eeeeeeveeeaee@

United States v. Ramsey, 431 U.S. 606

(1977) eeeeee8neeeee?

29

11

23

22

14

23

22

18

14

17

vi.

United States v. South-Eastern Under-

Writers Ass'n., 322 U.S. 533 (1944). 35

United States v. Villarin-Gerena, 533

F.2d 723 (lst Céy. 1977) “ener eee eeevee 14

Williams v. Fla., 399 U.S. 78 (1970).. 33

United States Constitution

Article VI, Cl. 2 secducs Ga

Fourth Amendment seeceseese OS

Constitution of Puerto Rico

Article Ze § 4 ere eeeenenee 14

Article V, § 4 ee+eeee passim

Article VI, § 16 eeeeee passim

Statutes

28 U.S.C. §§ 1257(1),(2), 1258(1),(2)..28

P.R. Laws Ann. tit. 4, § 37

(Supp. 1977) secooeesoe OF

P.R. Laws Ann. tit. 25, § 1051 ... passim

Other Authorities

R. Berger, Congress v. The Supreme

Court, at 534-385 [et €6CSGcdacees Oe Oe

Commonwealth of Puerto Rico Tourism

Company, Tourism Industry of Puerto

Rico, Selected Statistics (1978) .... 2

vii.

Graff, "The Charles River Bridge Case,"

uarrels That Shaped The Constitution

(J. Garraty ed. 1966) .........T 36

2 J. Madison, Writings 339 ....... 25,26

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1978

No. 77-1609

TERRY T. TORRES,

Appellant,

oy,«

COMMONWEALTH OF PUERTO RICO,

Appellee.

On Appeal From the Supreme Court of the

Commonwealth of Puerto Rico

BRIEF FOR THE

AMERICAN CIVIL LIBERTIES UNION,

AMICUS CURIAE

INTEREST OF amrcus2/

The American Civil Liberties Union is

a nation-wide, non-partisan organization

of over 200,000 members, dedicated solely

to defending the principles of freedom and

democracy embodied in the Bill of Rights.

1/Letters of consent from all parties to

the filing of this brief have been lodged

with the Clerk of the Court.

_=

Central to those freedoms is the right to

be free from unreasonable government

searches and seizures protected by the

Fourth Amendment. That Amendment erects

a critical barrier between the government

and the citizen, and it defines the proce-

dures and standards which the government

must follow whenever it seeks to invade

"the right of the people to be secure in

their persons, houses, papers, and effects

The ACLU has repeatedly urged upon

this Court a "strict construction" of that

Amendment. Puerto Rico has now, by statute,

removed from the protections of the Fourth

Amendment the privacy of the nearly

2,000,000 persons who annually enter

Puerto Rico from the mainland United

States. 2/ It is the purpose of this

amicus brief to show that this statute is

inconsistent with the Fourth Amendment.

2/ See Commonwealth of Puerto Rico Tourism

Company, Tourism Indust of Puerto Rico,

Selected Statistics (l -

STATEMENT OF THE CASE

This case involves the warrantless

search of luggage belonging to a United

States citizen arriving in Puerto Rico on

a non-stop flight from the mainland United

States. The search consisted of a thorough

rummaging through the contents of appel-

lant's suitcase in the baggage claim area

of the San Juan airport. It was conducted

over appellant's clearly articulated objec-

tion and, as both the courts below have

held, without probable cause or reasonable

ground to suspect that a crime had been

committed. The baggage searched contained

approximately one ounce of marijuana. The

search led directly to appellant's arrest

and conviction.

Only seven of the eight justices who

compose the Supreme Court of the Common-

wealth of Puerto Rico participated in ap-

pellant's appeal to that court. Four of

the seven found the Puerto Rican statute

authorizing random, indiscriminate searches

of personal belongings entering Puerto

Rico from the United States to be a clear

ado

violation of the Fourth Amendment. Their

majority opinion specifically rejected the

contention that the warrantless search of

appellant's suitcase was permissible under

this Court's “border search" exception to

the Fourth Amendment, and ruled that the

Puerto Rican legislature had not enacted

the statute authorizing the search with

the intention of furthering the Common-

wealth's power to conduct reasonable admin-

istrative inspections in the interest of

public health and safety. However, the

four-man majority was prevented from revers-

ing appellant's conviction by Article 5,

§ 4 of the Constitution of Puerto Rico,

which empowers the Supreme Court of Puerto

Rico to declare Commonwealth laws unconsti-

tutional only by a majority vote of all the

justices who compose the court, that is, by

a vote of at least five justices.

The majority opinion of the court

below concluded, "The judgment appealed

should be reversed and the appellant

acquitted." Juris, Stat, App. A,

at 30. But the judgment entered by

the Chief Clerk of that Court declared

~"[T]he judgment appealed is affirmed."

Juris. Stat. App. B, at 100.

o§=

SUMMARY OF ARGUMENT

The Fourth Amendment creates a justi-

fiable expectation of privacy in the con-

tenz:s of a closed suitcase a person has in

his possession. United States v. Chadwick,

433 U.S. 1.-(1977). In the absence of exi-

gen: circumstances, or one of the other

"jealously and carefully drawn" exceptions

to the Fourth Amendment's warrant require-

ment, any warrantless search is per se

unreasonable, and the fruits of that search

are inadmissible in court. Coolidge v. New

Hampshire, 403 U.S. 443, 454-55 (1971);

see also Mapp v. Ohio, 367 U.S. 643 (1960).

The boundary between the mainland United

States and Puerto Rico is not an inter-

national border, or a "functional equivalent"

thereof, justifying invocation of the "border

search" exception to the Fourth Amendment.

Alméida-Sanchez v. United States, 413 U.S.

266, 272 (1973). Nor would the “border search"

excéption itself, even if it applied, per-

mit the extended, wholly discretionary in-

trusion which took place in this case without

a showing of reasonable suspicion or probable

o6<

cause. Almeida-Sanchez v. United States,

supra. Moreover, the statute authorizing

the search has been authoritatively con-

strued by Puerto Rico's highest court as

not being an exercise of the power to con-

duct reasonable administrative inspections

to protect public health and safety, a con-

struction which binds this Court unless it

is “inescapably wrong." Fornaris v. Ridge

Tool Co., 400 U.S. 41, 43 (1970) (per

curiam). And even if the statute had been

enacted to protect public health or safety,

this search would still be unconstitutional

because it was conducted without a warrant

and pursuant to no "specific neutral cri-

teria” serving to assure equitable appli-

cation. Marshall v. Barlow's, Inc.,

US. _, 56 L.Ed.2d 305, 318 (1978).

In addition, state courts have an un-

qualified obligation to enforce federal

constitutional rights. U.S. Const. Article

VI, cl. 2; see also Testa v. Katt, 330 U.S.

386 (1947). The provis‘'on of the Consti-

tution of Puerto Rico which prevented the

majority of the justices who heard appel-

iant's case from entering an order revers-

ing his conviction, despite their ruling

that the conviction violated his federal

=~

constitutional rights, contravenes that

obligation. Moreover, as applied to this

case,3/ it denies the appellant equal pro-

tection of the laws. Article V, § 4 of the

Constitution of Puerto Rico arbitrarily

and capriciously disadvantages appellant,

compared with other petitioners in the

Supreme Court of Puerto Rico raising

identical legal claims, by penalizing him

because all eight justices did not par-

ticipate in his case. It also unfairly dis-

criminates against him, compared with other

persons convicted of the identical crime,

because the basis of his appeal was a par-

ticular constitutional claim, which re-

quires five votes to prevail, rather than

an evidentiary or other claim, which re-

quires only a majority of those sitting to

prevail.

Finally, the provision violates due

process by unfairly shifting the burden

of persuasion on appeal. Puerto

3/ The distinction between facial unconsti-

tutionality and unconstitutionality as

applied is somewhat artificial in this

case. Article V, § 4 is only operative when

fewer than all eight justices participate

in a given case. If all eight justices

are sitting, ancient common law principles

of majority rule govern their decisions.

See FTC v. Flothill Products, Inc., 389

U.S. 179 (1967).

-8-

Rican law permits final decisions in crim-

inal cases involving the constitutionality

of state statutes to be rendered by a three-

judge panel of the Commonwealth's Supreme

Court, see, e.g., People v. Perez, 83

P.R.R. 518 (1961). But when fewer than five

justices sit, under Article V,§ 4 it be-

comes mathematically impossible for an

appellant challenging the constitutionality

of a Puerto Rican statute to prevail.

Similarly, it becomes impossible for a

prosecutor in such a case to lose.

In light of this Court's recent cur-

tailment of the right to federal collateral

attack of a state conviction on Fourth

Amendment grounds, this procedure is

especially troublesome when a aefendant

seeks to present a Fourth Amendment issue

in a direct state court appeal. Stone v.

Powell, 428 U.S. 465 (1976). The same

notions of equal institutional competence

as between state and federal courts which

supported the result in Stone v. Powell,

supra, require the Court to set aside this

state rule. For this case challenges

Stone v. Powell's most basic premise: the

majority of the court below, acting fully

in accordance with state law, was required

0 ne

= Go

to affirm a conviction which this Court,

acting under federal law and the

Constitution, is required to reverse.

There simply cannot be room in our fed-

eralism for such a right-denying anomaly. 4/

4/ Although amicus urges the Court to set

Art. V, § 4 of the Constitution of Puerto

Rico aside as unconstitutional, there are

also less drastic remedial alternatives

open to the Court. For example, the Court

might remand the case to the Supreme Court

of Puerto Rico so that the state court

might fashion in its own remedies. Two

possibilities upon remand would be entry

of an order reversing appellant's convic-

tion, but lacking in precedential effect,

and/or a new court rule requiring automatic

rehearing before the entire court within a

set period of time whenever the situation

presented here arises, in the absence of

which an order reversing the conviction

shall be entered. The Court may also wish

to order, as it has done before, Dowd v.

United States Ex Rel, Lawrence Cook, 340

U.S. 206 (1951), that appellant be given a

new, Out-of-time hearing before the entire

Supreme Court of Puerto Rico.

-10-

ARGUMENT

I. THE WARRANTLESS SEARCH AND

SEIZURE OF PERSONAL LUGGAGE

IN APPELLANT'S POSSESSION

WAS CONDUCTED WITHOUT PROB-

ABLE CAUSE, IN THE ABSENCE

OF EXIGENT CIRCUMSTANCES

AND IN DIRE VIOLATION OF

APPELLANT'S FOURTH AMENDMENT

RIGHTS.

The Fourth Amendment's mandate is

clear and unambiguous:

The right of the people to be ae

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 searched, and the

persons or things to be seized.

In determining the Fourth Amendment's

applicability to a particular governmental

intrusion, the only question is whether

the person searched had "a reasonable

expectation of privacy" in the place or

item searched. Katz v. United States,

389 U.S. 342, 360 (1967) (Harlan, J. con-

curring). An owner does have a reasonable

expectation of privacy with respect to

securely closed personal luggage in his

possession. United States v. Chadwick, supra.

elie

Thus, the only issue before the Court

is whether this warrantless search may be

justified by some special circumstance.

However, as this Court has repeatedly

warned:

[T]he most basic constitutional

rule in this area is that ‘searches

conducted outside the judicial

process, without prior approval

by judge or magistrate, are r se

unreasonable under the rourth Kaané-

ment -- subject only to a few spe-

cifically established and well-

delineated exceptions.' The excep-

tions are ‘jealously and carefully

drawn,’ and there must be a 'show-

ing by those who seek exemption

- « « that the exigencies of the

situation made that course impera-

tive.'

Coolidge v. New jampshire, 403

U.S. 443, 454-55 “As7T) (cita-

tions omitted).

Puerto Rico has not met that high burden.

First, the Puerto Rican statute

authorizing the search does not require or

even mention probable cause. It subjects

"the luggage, packages, bundles, and bags

of passengers and crew who land in the

airports and piers of Puerto Rico arriving

from the United States" to highly intrusive

and indiscriminate police "inspections"

without requiring any suspicion of crim-

o) 3e

inal activity whatever. P.R. Laws Ann.

tit. 25, § 1051.2’ This Court has held

that in the absence of probable cause, any

police intrusion on an individual's pri-

vacy must be limited to that which is neces-

sary to protect the officer's personal

safety, and that even such a limited frisk

may be conducted only after an officer has

reason to suspect that the person he

5/ P.R. Laws Ann. tit. 25, § 1051 provides:

The Police of Puerto Rico is

hereby empowered and authorized to

inspect the luggage, packages, bun-

dles, and bags of passengers and

crew who land in the airports and

piers of Puerto Rico arriving from

the United States; to examine cargo

brought into the country, and to

detain, question, and search those

persons whom the Police have

ground to suspect of illegally

carrying firearms, explosives,

narcotics, depressants or stim-

ulants or similar substances.

The courts below construed this section as

establishing two different standards, one

for searching luggage and one for "detaining,

questioning, and searching" persons. Only

the first clause is relevant héré. Insofar

as the latter clause authorizes a full-blown

"search" on less than probable cause, it

is also clearly unconstitutional under

Terry v. Ohio, supra.

o] 3-

has detained is dangerous or armed. Terry

v. Ohio, supra; see also Chimel v.

California, 395 U.S. 752 (1969) (search

incident to arrest limited to places

where the prisoner might immediately reach

to obtain a weapon),

Second, the trial judge specifically

held, and all seven justices of the Puerto

Rican Supreme Court sitting on the case

agreed, that there was no probable cause

for this search. The fact that the offi-

cers on the scene did not attempt to frisk

appellant, together with his calm request

to telephone a lawyer, only confirms that

he was considered neither dangerous nor

likely to flee the scene. In short, the

courts below were entirely correct in hold-

ing that this search -- and with it

appellant's conviction -- must stand or

fall on the constitutionality of the com-

pletely indiscriminate, highly intrusive,

and wholly discretionary police practice

authorized by P.R. Laws Ann. tit. 25,

s 1051. 9/

6/ The Commonwealth has never contended

that the Fourth Amendment is inapplicable

in Puerto Rico, and the Puerto Rican

courts involved in this case have assumed

(Footnote 6 continued on next page)

-14-

In its Motion to Dismiss or Affirm

submitted to this Court, the Commonwealth

(Footnote 6 continued)

that it applies. See also People v.

Caballero, 100 P.R.R. 146 ( 1). Although

this Court has never definitively ruled that

the Fourth Amendment applies to Puerto Rico,

see, e.g., Calero-Toledo v. Pearson Yacht

Leasing Co., 416 U.S. 663, 668 n. 5 (1974),

it has held that the general protections

of due process do apply there, through

either the Fifth or the Fourteenth Amend-

ments. Examining Bd. of Engineers, Archi-

tects & Surveyors v. Flores de Otero, 426

U.S. 572, 599-600 (1976). Relying upon

the Court's statements in Calero-Toledo, and

Examining Bd., both supra, as well as their

own long experience in dealing with the in-

tricacies of Puerto Rico-United States legal

relations, the lower federal courts within

whose jurisdiction Puerto Rico lies have

consistently held that full Fourth Amendment

protections are in effect there. Cf.

United States v. Villarin-Gerena, 553 F.2d

723 (lst Cir. 1977); United States v. Meyer,

536 F.2d 963 (lst Cir. 1976); United States

v. Diaz, 535 F.2d 130 (lst Cir. 1976);

Amesguita v. Hernandez-Colon, 518 F.2d 8

st Cir. ), cert. denied, 424 U.S. 916

(1976). Application of the Fourth Amend-

ment does not disrupt the Commonwealth's in-

ternal affairs because the protections against

unreasonable searches and seizures included

in the Constitution of Puerto Rico are more

stringent than those contained in the

Fourth Amendment. See article 1, § 4 of the

Constitution of Puerto Rico (wiretapping

unconstitutional; exclusionary rule made

a constitutional principle).

%

o1$~

suggested two justifications for the pro-

cedure authorized by P.R. Laws Ann. tit.

25, § 1051: (1) it represents a legitimate

exercise of the Commonwealth's power to

patrol its "border" with the United States,

and (2) it is a legitimate exercise of

the Commonwealth's power to conduct reason-

able inspections to protect public health

and safety. Both justifications were

rejected by the majority of the Supreme

Court of Puerto Rico, and neither with-

7/

stands analysis.—

7/ Several other arguments suggested by

the Commonwealth may be disposed of sun-

marily. First, the contention that Puerto

Rico is entitled to evade the clear commands

of the Fourth Amen nt because it is an

island is frivolous on its face. The ap-

plicability of the Fourth Amendment is a

matter of law, not geography. By the

Commonwealth's reasoning, the Fourth

Amendment would have to be held inappli-

cable to Manhattan, Long Island, Martha's

Vineyard, Nantucket, Hilton Head, and Key

Biscayne, as well as parts of Maine, Alaska,

and California, and the entire state of

Hawaii. Second, the notion that appellant

may be deemed to have consented to the

search because warnings concerning the

existence of P.R. Laws Ann. tit. 25,

§ 1051 were posted in San Juan airport is

equally frivolous. The trial court found

that no such warnings were posted on the

airplane on which appellant arrived or at

(Footnote 7 continued on next page)

@l6<

The Commonwealth's argument that the

boundary between Puerto Rico and the United

States constitutes the "functional equiva-

lent" of an international border fundamen-

tally misconstrues the Court's holding in

Almeida-Sanchez v. United States, supra,

at 272. The Commonwealth argues that its

special status requires that it be recog-

nized as a semi-independent, semi-sovereign

nation with power to suspend constitutional

rights. But Almeida-Sanchez, supra, was

not concerned with degrees of sovereignty.

It was concerned with the different Fourth

Amendment standards that might be appli-

cable at different distances from true

international borders. This Court's hold-

ing with regard to the right of the Post

Office to inspect incoming foreign mail

(Footnote 7 continued)

the mainland airport from which he departed

on his non-stop flight. Moreover, even if

the warnings in San Juan airport had con-

vinced appellant that he should leave the

island immediately in order to avoid con-

senting to a search, he still would have

had to claim his luggage before getting

another flight out. Indeed, for all the

record shows, that is precisely what he

was going to do. Finally, the regrettable

fact that Puerto Rico is currently exper-

iencing a serious crime problem is simply

irrelevant to determining the scope of the

protections afforded by the Fourth Amend-

ment, see Almeida-Sanchez v. United States,

supra, at 273.

=lJ@

confirms this analysis of Almeida-Sanchez,

supra. See United States v. Ramsey, 431

U.S. 606 (1977) ./ is

In fact, the "border search" cases,

when properly understood, directly under-

mine the Commonwealth's arguments. The

"border search" cases as a whole make

clear that borders between sovereign

countries are unique facts of international

life, representing the precise point in

space where American conceptions of free-

dom become jurisdictionally functional.

On one side of the border, the American

constitution applies. On the other side of

the border, in the absence of official

American government action, 2/ it does not,

8/ The procedures followed by U.S. Customs

Service officers at airports which serve

both domestic and international travellers

further illustrate the point. Even with-

in the same airport (at New York's Kennedy

Airport, for example) only persons entering

the United States from foreign countries are

subjected to Customs inspections. And as the

majority of the Puerto Rican Supreme Court

observed, "(W]hen traveling by plane there

is no difference between going from here

to Miami or from Miama [sic] to New York."

Juris. Stat., App. A, at 21.

9/ See Reid v. Covert, 354 U.S.-1 (1957).

Indeed, the holding in Reid, that American

freedoms may sometimes be extended

(Footnote 9 continued on next page)

-18-

The relationship between the United States

and Puerto Rico is not comparable to the

relationship between the United States and

a truly sovereign nation. With a few

limited exceptions, see, e.g., Califano v.

Torres, 435 U.S. 1 (1978), all

American legal principles are as fully

operative in Puerto Rico as in any of

the fifty states. See Examining Bd.,

supra, and Calero-Toledo, supra.

Finally, the search authorized by

P.R. Laws Ann. tit. 25, §1051 fails to

meet the standards this Court has estab-

lished for searches at true international

borders. Although it has approved war-

rantless "stops for brief questioning” at

fixed checkpoints at or near international

borders, United States v. Martinez-Fuerte, |

428 U.S. 543, 566 (1976), the Court has |

specifically held that "‘any further deten-

tion . . . must be based on consent or

probable cause.'" United States v. Martinez-

Fuerte, supra at 567, quoting, United

States v. Brignoni-Ponce, 422 U.S. 873,

882 (1975). A “roving patrol" near a

(Footnote 9 continued)

extraterritorially, only emphasizes that

they may not be compromised where American

jurisdiction is unquestionable.

-19-

border must be able to point to "specific

articulable facts, together with rational

inferences from those facts, that reason-

ably warrant suspicion" in order to con-

duct even a "modest" questioning stop.

United States v. Brignon’ «Ponce, supra,

at 880-84. And in Almeida-Sanchez v.

United States, supra, the Court ruled that

roving border patrols are not excepted

from the Fourth Amendment and are not per-

mitted to conduct searches on the basis

of their own “unfettered discretion."

Almeida-Sanchez v. United States, supra,

at 270.

But tit. 25, § 1051 of P.R. Laws

Ann. establishes no fixed checkpoints,

requires no finding of suspicion or prob-

able cause, and authorizes highly intru-

Sive searches by roving officers without

requiring an initial stop for questioning.

In the course of making its “intermediate

border" argument, the Commonwealth con-

cedes that the boundary between the United

States and Puerto Rico is something less

than an international border. Motion to

Dismiss or Affirm,at 24. If this is so,

then even by the Commonwealth's own argu-

ment a higher, rather than a lower, degree

-20-

of Fourth Amendment protection should be

accorded persons entering Puerto Rico from

the United States mainland than is accorded

persons crossing an international boundary.

The problem with the Commonwealth's argu-

ment is that P.R. Laws Ann. tit. 25,

§ 1051 does precisely the reverse.

The Commonwealth's claim that P.R.

Laws Ann. tit. 25, § 1051 may be upheld as

a proper exercise of its power to make

reasonable administrative inspections in

the interest of public health and safety

is equally unpersuasive. First, the court

below has authoritatively ruled that the

challenged statute was enacted not for the

purpose of protecting health or safety,

but as a means of enforcing the Common-

wealth's criminal laws. See Juris. Stat.,

App. A, at 13. This Court has ruled that

it will not set aside the construction of

a Puerto Rican statute by the Puerto Rico

Supreme Court unless that construction is

“inescapably wrong." Fornaris v. Ridge

Tool Co., supra. Considering that the

Statement of Motives of the Puerto Rican

legislature which accompanied passage of

this statute, quoted in Juris, Stat., App.

A,at 40-41, explicitly states the legis-

lature's concern with the Commonwealth's

-2l-

growing crime problem, and that the statute

is enforced by regular police officers, not

administrative officials, no such showing can

be made here. Moreover, even if the Common-

wealth's health and safety inspection power

could be invoked, P.R. Laws Ann. tit. 25,

§ 1051 would still be unconstitutional be-

cause it does not require a warrant or

establish the "specific neutral criteria" on

the basis of which an administrative search

warrant must be issued. See Marshall v.

Barlow's, Inc., supra, at 318; see also

Camara v. Municipal Court, 387 U.S. 523

(1967); See v. City of Seattle, 387 U.S.

“107

541 (1967). —

10/ The military search cases cited by

e Commonwealth also do not help its

case. Although this Court has traditionally

accorded the military considerable dis-

cretion to fashion its own criminal rules

and procedures, see Parker v. Le » 417

U.S. 733, 744 (1974), the U.S. Court of

Military Appeals has repeatedly made clear

its intention to require the strictest

possible application of the Fourth Amend-

ment to searches and seizures conducted

pursuant to military authority. See,

€.g., Courtney v. Williams, 24 U.5S.C.M.A.

; 89-90; SLC MF oF -M.R. 261, 262-263, 1 M.J.

267, 270 (CMA 1976) ("The burden of show-

ing that military conditions require a

different rule than that prevailing in the

civilian community is upon the party

arguing for a different rule .... We

believe that those procedures required

by the Fourth Amendment in the civilian

(Footnote 10 continued on next page)

@220

The only arguably analogous instance

in which warrantless inspections are cur-

rently permitted, namely anti-skyjacking

screenings at airport departure gates ,2+/

underscores the unreasonableness of the

Puerto Rican procedure challenged here.

Keyed to a highly specific danger of the

gravest importance (the chance that fire-

arms will be misused on a passenger air-

liner in mid-air), anti-skyjacking

searches are conducted on the basis of

articulable facts (visual screenings and

individualized comparisons with the

Federal Aviation Agency's scientifically

developed skyjacker "profile"), and carried

out in a graduated step-by-step progression

from lesser to greater intrusions (from a

visual screening, to an electronic magneto-

meter, to questioning, to physical

searches). 12/ In addition, warnings

(Footnote 10 continued)

community must also be required in the

military community. We discern no con-

siderations of military necessity that

would require a different rule." ) (citation

omitted. )

1l/ See United States v. Davis, 482 F.2d

893 (Sth Cir. 1973).

12/ See United States v. Doran, 482 F.2d

9 (9th Cir. 1973); United States v.

Lopez, 328 F. Supp., 1077 (E.D.N.Y. 1971).

(Footnote 12 continued on next page)

o23<

concerning these intrusions are posted at

a point where a would-be traveller could

still make a meaningful choice to submit

to the procedure or to leave the air-

port .23/ None of these conditions applies

to this case.

(Footnote 12 continued)

These anti-skyjacking cases are, moreover,

unique. Where less immediate threats to

innocent lives are involved, the courts

have repeatedly struck down procedures

similar to these. See, e.g., United

States v. Craemer, 555 F.2d 594 (6th

Cir. 1977) (Drug Enforcement Administra-~

tion's "drug courier profile").

13/ See, e.g., United States v. Doran,

Supra, at -31,

o24-

II. ARTICLE V, SECTION 4 OF THE

CONSTITUTION OF PUERTO RICO

WHICH PREVENTED THE MAJORITY

OF THE JUSTICES BEFORE WHOM

APPELLANT ARGUED HIS STATE

COURT APPEAL FROM ENTERING

ING HIS CONVIC-

TION DESPITI THEIR OPINION

THAT THE CONVICTION WAS UNCON-

STITUTIONAL, VIOLATES THE

UP LAUSE AND ABRIDGES

APPELLANT'S RIGHTS TO EQUAL

PROTECTION AND DUE PROCESS.

A. The Supremacy Clause

State and federal courts have an

egual duty to enforce federal constitu-

tional rights. In Article VI of the

Constitution this doctrine is set forth

in unequivocal terms:

This Constitution . .. shall be

the supreme Law of the Land; and

the Judges in every State shall

be bound thereby, any Thing in

the Constitution or Laws of any

State to the Contrary notwith-

standing. (emphasis added)

In recent years this Court has repeatedly

asserted the continuing vigor of this

fundamental principle. See, e.g., Juidice

v. Vail, 430 U.S. 327 (1977); Stone v.

Powell, supra; Doran v. Salem Inn, Inc.,

422 U.S. 922 (1975); Hicks v. Miranda,

422 U.S. 332 (1975); Hoffman v. Pursue,

=<" =

Ltd., 420 U.S. 592 (1975).24/ yet a

"Thing in the Constitution" of Puerto

Rico, namely Article V, § 4, has prevented

the vindication of appellant's federal

constitutional rights. It has prevented

the judges of the Puerto Rican Supreme

Court from being "bound" by the Fourth

Amendment. ->/

14/ The extreme importance of the Supremacy

Clause, as the bedrock provision upon

which the entire federal system ultimately

rests, was clearly recognized by the Found-

ing Fathers. Even prior to the Constitu-

tional Convention James Madison wrote,

"If the judges in the last resort depend

on the States, and are bound by their oaths

to them and not to the Union, the inten-

tion of the law and interests of the Union

may be defeated by the obsequiousness of

the tribunals to the policy or prejudices

of the States.” 2 J. Madison, Writings 339.

Moreover, even the harshest contemporary

critic of modern "judicial activism"

acknowledges the singular importance of

exacting strict fidelity to the commands

of the Supremacy Clause. See R. Berger,

Congress v. The Supreme Court, at 223-285.

(1969).

15/ It has also caused the members of the

court to violate their oaths of office.

Article VI, § 16 of the Puerto Rican

Constitution requires that "all public

officials . . . shall take an oath to

support the Constitution of the United

States." The oath makes no exception for

the Supremacy Clause or the Fourth

(Footnote 15 continued on next page)

=26@

Relying upon the Supremacy Clause,

this Court has repeatedly set aside state

procedures which impeded the enforcement

of constitutional rights. Long before

passage of the Fourteenth Amendment, which

drastically altered the balance in federal-

state relations in favor of the federal

gevernment, this Court relied upon the

Supremacy Clause to ensure that federal

rights would be enforced by state courts.

Even in the antebellum heyday of the

states’ rights doctrine, this Court inter-

vened dramatically to strike down “any

state law" or state judicial procedure

which “interrupt[ed], limit[ed], delay[ed],

(Footnote 15 continued)

Amendment. Commentators have long noted

the intimate connection between the

Supremacy Clause and the clause relating

to the oath of office. See 2 J. Madison,

supra. R. Berger, supra.

The ironies and anomalies presented

by this situation are numerous. Perhaps

the greatest of them is that the most

compelling and exhaustive legal argument

for reversing appellant's conviction

presently before this Court is to be

found in the majority opinion of the

court below. In Ss Lamited respect at

least, this case, like Estate of Wilson

v. Aiken Indus., cert. denied, 47 U.S.L.W.

3215 (Oct. 2, 1978), also recalls the

well known remark by Charles Dickens as to

what the law can sometimes be. Id. at

3219 n. 3.

o%Fa

or postpone[d]" the assertion of a "posi-

tive and absolute" constitutional right.

See Prigg v. Pennsylvania, 41 U.S.

539, 611-12 (1842) (state kidnapping

statute invalidated); Ableman v. Booth,

62 U.S. 506 (1859) (state habeas

corpus process invalidated). Surely the

values of privacy and liberty embodied in

the Fourth Amendment are as worthy of this

Court's protection as the "property"

interests it invoked the Supremacy Clause

to defend one hundred and thirty years

ago on behalf of the fugitive slave

clause.

Moreover, because this Court's

decision in Stone v. Powell, supra,

severely restricts a state defendant's

right to have an independent federal

determination of a Fourth Amendment claim,

the Court should exercise particular care

to ensure that a state court gives every

appellant a full and fair opportunity to

prevail on his Fourth Amendment claim.

See Mincy v. Arizona, U.S. __, 57

L.Ed.2d 290, 306 (1978) (Marshall and

Brennan, J.J., concurring) .25/

16/ As the concurring justices observed,

It is far from clear that we would have

=29-

The Court's decision in Stone v.

Powell presupposes parity between state

and federal courts as forums for enforcing

federal rights. Stone v. Powell, supra,

(Footnote 16 continued)

granted certiorari solely to resolve the

Fifth Amendment issue in this case, for

that could have been resolved on federal

habeas corpus. With regard to the Fourth

Amendment issue, however, we had little

choice but to grant review, because our

decision in Stone v. Powell precludes

federal habeas consideration of such

issues." Mincy v. Arizona, supra, at 306.

Indeed, in the aftermath of Stone, at

least one circuit court has suggested

that a state defendant has a right to

"meaningful appellate review" of his Fourth

Amendment claim. See O'Ber v. Wain-

wright, 546 F.2d 1204, th Cir.)

1976), cert. denied, 433 U.S. 911 (1977).

See also,Gates v. Henderson, 568 F.2d 830,

843-4 (2d Cir. 1977), cert. denied, 98

S. Ct. 775 (1978) (Oakes, J. concurring).

The net effect of Article V, § 4 and similar

state provisions could well be a substantial

increase in the number of Fourth Amendment

cases this Court is required by law to

adjudicate on the merits. See 28 U.S.C.

§§ 1257(1), (2), 1258(1), (2).

=29-

at 493, n. 35. But Article V, § 4 of the

Constitution of Puerto Rico operates as

a direct and special presumption against

the successful assertion of constitutional

claims in a direct criminal appeal. When

a rule of state appellate procedure unduly

burdens the presentation of a Fourth

Amendment claim on direct appeal, the

arguments concerning relative institutional

competence which supported the result in

Stone v. Powell, supra, argue just as

strongly that the state court rule must

be set aside. +2/ Article V, § 4 of the

17/ See also Smyth v. Ames, 169 U.S. 466

(1898) (possible availability of an adequate

state court remedy should not foreclose

federal court consideration of a properly

presented federal issue). Should the Court

decide that Art. V, § 4 is a state rule

denying appellant an "opportunity for full

and fair litigation" of his Fourth Amend-

ment claim, see Stone v. Powell, supra,

at 494, without reaching Say ee

Amendment question, amicus urges the Court

to make explicit in its decision that

appellant's right to federal collateral

attack on his conviction is not foreclosed.

-30-

Constitution of Puerto Rico clearly and

unmistakably contradicts Stone v. Powell's

fundamental premise, and it cannot be har-

monized with that case.

B. Equal Protection and Due

Process

In addition to obstructing the

enforcement of federal rights in general,

Article V, § 4 specifically deprives the

criminal appellant challenging the con-

stitutionality of his conviction in the

Supreme Court of Puerto Rico of equal

protection and due process.

Although a state has no obligation

to afford a criminal defendant an

opportunity to appeal his conviction at

all, once an appeal is granted it must be

made available on a fair and non-

discriminatory basis. See, Griffin v.

Illinois, 351 U.S. 12 (1956); Douglas v.

California, 372 U.S. 353 (1963). See also

Ross v. Moffitt, 417 U.S. 600 (1974).

Puerto Rican law provides the criminal

defendant an appeal to the Commonweaith's

Supreme Court, P.R. Laws Ann. tit. 4, § 37

(Supp. 1977), but Article V, § 4 of the

Puerto Rican Constitution discriminates

against certain criminal defendants in

oZl<

two important ways.

First, it discriminates against appel-

lants raising federal constitutional claims

in a way which serves no rational state

purpose. Under the current Puerto Rican

procedure which permits the Puerto Rican

Supreme Court to sit in three-man panels,

see People v. Perez, supra, a mass murderer

may win an appeal by a vote of two Supreme

Court justices by successfully arguing, for

example, a hearsay point. Meanwhile, appel-

lant must serve a substantial prison sentence

for a minor drug charge because his constitu-

tional rights were violated by an unconstitu-

tional statute and despite a majority opinion

entered by four of the court's justices

stating that his conviction should be

reversed. In addition, Article V, §4 also

discriminates among different constitutional

claims. Had this search been conducted in

the absence of statutory authorization, four

votes would have sufficed to reverse appel-

lant's conviction.

Second, Article V, §4 discriminates

against appellants raising identical consti-

tutional claims by arbitrarily increasing

their individual burdens of persuasion

depending upon the number of justices who

happen to sit on a particular day. As noted

above, Article V, §4 is superfluous when all

=320

eight justices are sitting: general common

law rules would require their majority vote

on a constitutional case coming before them.

See FTC v. Flothill Products, Inc.,

Supra. But when only seven of them sit on a

constitutional case, Article V, §4 makes it

necessary for a criminal appellant to per-

suade 70% of the bench before him. When six

justices sit, the appellant must persuade

83%. When five are sitting, he must persuade

100%. And when fewer than five appear, as

People v. Perez, supra, permits, an appellant

challenging the constitutionality of a Puerto

Rican statute simply cannot win. A sliding-

scale standard for successful appellate

review, in which the scale slides upward

depending upon factors over which the appel-

lant has no control, is an “arbitrary and

capricious" procedure. 18/

18/ The fundamental unfairness of the appeal

below is highlighted by considering how the

Supreme Court of Puerto Rico came to be com-

posed of eight justices in December 1977.

The court had previously been composed of

nine justices, but the Puerto Rican legisla-

ture decided in 1975 to decrease their number

to seven through gradual attrition. See

P.R. Laws Ann. tit. 4, §31 (Supp. 1977).

Were this same issue to be decided in the

future, when the court is comprised of the

seven justices now contemplated, a vote of

four would be sufficient to declare the

statute unconstitutional. (Footnote 18

continued)

@33-

Article V, §4's sliding scale offends

fundamental fairness in other ways as well.

This Court has held repeatedly that questions

concerning the burden of persuasion in crim-

inal cases are matters of constitutional

dimension. See In Re Winship, 397 U.S. 358,

(1970); Mullaney v. Wilbur, 421 U.S. 684

(Footnote 18 continued)

Indeed, if the non-participating eighth

justice had died just before appellant's

case was heard, this conviction would have

been reversed.

Originally, the Puerto Rican Supreme

Court was composed of only five justices.

See Article V, §2 of the Constitution of

Puerto Rico. Thus, the votes of only

three would then have reversed appellant's

conviction. This Court, after an extensive

review of the relevant social science

literature on small group interaction, has

recently ruled that a group of six is

sufficient to guarantee adequate consider-

ation of the questions the group must

decide. See Ballew v. Georgia, 435

U.S. 223 (1978); Williams v. Florida, 399

U.S. 78 (1970). Appellant's appeal was

decided by a group of seven.

-34-

(1975). And, however burdens of persuasion

may be distributed between the prosecution

and the defense as matters of law, in every

cther phase of a criminal proceeding the

prosecutor and the defendant are evenly

matched in terms of the number of persons

they must each convince to win their point.

On motions, they must each convince one

judge. In most jurisdictions, they must

each convince twelve jurors to convict or

acquit. In states with a unanimous jury

rule, either can hang a jury by convincing

a single juror. And in states where non-

unanimous jury rules apply, either side can

obtain a final judgment on the same vote-

count. But under Article V, §4 of the

Constitution of Puerto Rico, and People v.

Perez, supra, a prosecutor can sustain a

conviction on appeal without convincing a

single justice that the law underlying the

conviction is constitutional. A defendant

whose rights have been violated must con-

vince five that it is not. Although there may

be a legitimate state interest in construct-

ing legal presumptions in favor of the

constitutionality of duly enacted state

legislation, 22/ it is impermissible to

enforce that interest by creating judicial

19/ [Please see next page for footnote]

-35

mechanisms that operate in a manner which is

fundamentally unfair.

For many years this Court also refused

to decide major constitutional questions by

a vote of fewer than a majority of the entire

Court. See, e.g., Briscoe v. Commonwealth

Bank of Kentucky, 33 U.S. 118 (1834 ).

But that self-imposed rule has been dis-

regarded for some twenty-four years. See,

e.g., United States v. South-Eastern Under-

writers Ass'n., 322 U.S. 533 (1944); Feldman

v. United States, 322 U.S. 487 (1944), reh.

denied 323 U.S. 811 (1944). More importantly,

even while the "Briscoe Doctrine" was in

effect, the Court made sure that no abuses

such as these would arise. Briscoe itself

19/ Commonwealth v. Aguayo, 83 P.R.R. 534

(1958), suggests that the Puerto Rican Con-

stitutional Convention was concerned with

the “presumption of constitutionality,” as

well as the problems of non-uniformity which

might arise from the court's sitting in

divisions, when it framed Article V, §4.

See also People v. Perez, supra. On the other

hand, Article V, §4 does not on its face create

any presumption favoring the integrity of

lower court judgments. Under Article V, §4,

a party seeking to set aside a state statute

must convince five justices of the Puerto

Rican Supreme Court regardless of whether

he won or lost below.

-36-

made an exception for “cases of absolute

necessity." Briscoe v. Commonwealth Bank of

Kentucky, supra at 122. And when a decision

was not “absolutely necessary," the Court's

solution was simple: if the entire Court

could not be assembled, a case was simply

put over until it could be. See, e.g.,

Graff, "The Charles River Bridge Case," in

Quarrels That Shaped the Constitution

62, 71 (J. Garraty ed. 1964) (case put over

for six years).

Virtually every state which has a rule

resembling Article 5, §4 of the Puerto Rican

Constitution has also created a special

procedural or remedial device to prevent the

victonesmes * maascreaatd before the Court from

arising.— Puerto Rico has made none. When

an injustice occurs, it simply allows that

20/ See, e.g., North Dakota Constitution,

Article 4, §95 (requiring the state Supreme

Court's chief justice to appoint another

judge, or a retired justice, to replace any

justice who is unable to hear a particular

case); Nebraska (local practice requirement

that "Notice of Constitutional Issue" be

filed in advance with the Chief Clerk of

the Supreme Court so that the court willsit

en banc); Colorado (informal requirement that

the Supreme Court sit en bane to decide a

constitutional issue).

(Footnote 20 continued)

a ha, Wo

o37a

injustice to stand. This cannot be the

law.

(Footnote 20 continued)

Nor should the Court's holding in Ohio

ex rel. Bryant v. Akron Metropolitan Park

Dist., U.S. 74 (1930) govern here.

That case, decided almost half a century ago,

was a civil case concerning the power of the

states to organize their own political sub-

divisions. The Court's opinion was brief.

The enormous changes in due process doctrine

since 1930, combined with the fact = this

is a criminal case, render Ohio ex rel,

Bryant, supra, inapplicable. In addition,

the people of Ohio voted ten years ago to

repeal the provision of the Ohio Constitu-

tion this Court upheld in that case.

~38e

CONCLUSION

The Judgment entered below should be

reversed.

Respectfully submitted,

BRUCE J. ENNIS

CHARLES S. SIMS

American Civil Liber-

ties Union Foundation

22 East 40th Street

New York, New York 10016

ATTORNEYS FOR

AMICUS CURIAE *

November 15, 1978

e Counsel for Amicus wish to acknowledge the

substantial assistance of George Kannar, a

candidate for admission to the New York Bar,

in the research and preparation of this brief.

_—_ ae eee

+ ee