Petition — Ficklin v. United States

Supreme Court, U. &

FILED

MAY 17 1978

IN THE MICHAEL RODAK, JR., CLERK

SUPREME COURT OF THE UNITED STATES

October Term, 1977

NO. 7771635

RAYMOND WESLEY FICKLIN, JR.,

RICHARD PAUL SEEFELDT,

Petitioners,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GOLDIN & GOLDIN

MARTHA GOLDIN

Attorneys at Law

1724 North La Brea Avenue

Holiywood, California 900+_

(213) 851-7200

Attorneys for Petitioners

age

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1977

NO.

RAYMOND WESLEY FICKLIN, JR.,

RICHARD PAUL SEEFELDT,

Petitioners,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GOLDIN & GOLDIN

MARTHA GOLDIN

Attorneys at Law

1724 North La Brea Avenue

Hollywood, California 90046

(213) 851-7200

Attorneys for Petitioners

whe. oa a

TOPICAL INDEX

TABLE OF AUTHORITIES

OPINION BELOW

JURISDICTION

QUESTIONS PRESENTED

CONSTITUTIONAL PROVISIONS AND RULES

INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

CONCLUSION

APPENDIX "A" - Memorandum of the Ninth

Circuit Court of Appeals

APPENDIX "B" - Order Denying Petition for

Rehearing.

18

TABLE OF AUTHORITIES

Case

Adams v. Williams,

407 U.S. 143, 92 S.Ct. 1921 (1972)

Almeida-Sanchez v. United States,

413 U.S. 266, 93 S.Ct. 2535 (1973)

Barber v. Superior Court for County

of San Diego,

30 Cal.App.3d 326, 106 Cal.Rptr. 304

Boyd v. United States,

ll6 U.S. 616, 6 S.Ct. 524 (1886)

Camara v. Municipal Court,

387 U.S. 523, 87 S.Ct. 1727 (1967)

Carroll v. United States,

267 U.S. 132, 45 S.Ct. 280 (1925)

Chimel v. California,

395 U.S. 752, 88 S.Ct. 2034 (1969)

Coolidge v. New Hampshire,

403 U.S. 443, 91 S.Ct. 2022 (1971)

Davis v. Mississippi,

394 U.S. 721, 89 S.Ct. 1394 (1969)

Filitti v. Superior Court of Orange County,

23 Cal.App.3d 930, 100 Cal.Rptr. 583 (1972)

Jones v. United States,

357 U.S. 493, 78 S.Ct. 1253 (1958)

Katz v. United States,

389 U.S. 347, 88 S.Ct. 507 (1967)

Morgan v. United States,

298 U.S. 468, 56 S.Ct. 906 (1936)

People v. Bello,

45 Cal.App.3d 979, 119 Cal.Rptr. 838 (1975)

ii.

13,

Case Page

People v. Brown,

24 N.Y.2d 421, 301 N.Y.Supp.2d 18 (1969) 11

People v. Colon,

81 Mise.2d 753, 367 N.Y.Supp.2d 412 (1975) 11

People v. Corrado,

22 N.Y.2d 308, 292 N.Y.Supp.2d 648 (1968) Ll

People v. Grace,

32 Cal.App.3d 447, 108 Cal.Rptr. 66 (1973) 10

People v. Odin,

36 N.Y.2d 382, 368 N.Y.Supp.2d 508 (1975) 11

Remers v. Superior Court of Alameda County,

2 Cal.3d 659, 87 Cal.Rptr. 202 (1970) 1]

Rios v. United States,

364 U.S. 253, 80 S.Ct. 1431 (1960) 7

Sibron v. New York,

392 U.S. 40, 88 S.Ct. 1889 (1968) 7, 8

Terry v. Ohio,

392 U.S. 1, 88 S.Ct. 1868 (1968) 7, 8, 9

United States v. Brignoni-Ponce,

422 U.S. 873, 95 S.Ct. 2574 (1975) 7, 9

United States v. Bugarin-Casas,

484 F.2d 853 (9th Cir. 1973) 12

United States v. Chadwick,

433 U.S. |, 97 S.Ct. 2476 (1977) 13, 14, 15

United States v. Chamblis,

425 F.Supp. 1330 (E.D. Mich. 1977) 4

United States v. Martinez-Fuertes,

428 U.S. 543, 96 S.Ct. 3074 (1976) 7

United States v. Ortiz,

422 U.S. 891, 95 S.Ct. 2585 (1975)

United States v. Rocha-Lopez,

927 F.2d 476 (9th Cir. 1975)

iti.

Case

Page

United States v. Short,

970 F.2d 1051 (D.C. Cir. 1978) 13

United States v. United States District Court,

407 U.S. 297, 92 S.Ct. 2125 (1972) 14

United States v. Watson,

423 U.S. 4ll, 96 S.Ct. 820 (1976) 12

Wolf v. Colorado,

338 U.S. 25, 69 S.Ct. 1359 (1949) 13

UNITED STATES CONSTITUTION

Fourth Amendment 2, 6, 7, 13, 15

Fifth Amendment 3, 17

STATUTES AND RULES

21 U.S.C. Section 84l(a)(1) 5

28 U.S.C. Section 1254(1)

Ninth Circuit Rule 3(a) 16

iv.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1977

NO.

RAYMOND WESLEY FICKLIN, JR.,

RICHARD PAUL SEEFELDT,

Petitioners,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

Petitioners, RAYMOND WESLEY FICKLIN, JR. and

RICHARD PAUL SEEFELDT, pray that a writ of

certiorari issue to review the judgment and memorandum

opinion of the United States Court of Appeals for the

Ninth Circuit, entered in this proceeding on February 10,

1978.

OPINION BELOW

The opinion of the court below is unpublished. A copy

of the memorandum opinion is attached to this petition

as Appendix "A".

JURISDICTION

The judgment of the United States Court of Appeals

for the Ninth Circuit, was filed and entered on

February 10, 1978. A timely Petition for Rehearing was

denied on March 28, 1978. A eopy of the order denying

the Petition for Rehearing is attached to this petition as

Appendix "B". An extension of time in which to file this

petition to and including May 18, 1978 was granted by

Mr. Justice Rehnquist. Jurisdiction of this Court is

invoked pursuant to 28 U.S.C. §1254(1).

QUESTIONS PRESENTED

l. Whether the stop of an automobile without a

warrant and without probable cause is unreasonable

within the meaning of the Fourth Amendment.

2. Whether a detention without probable cause or

founded suspicion of criminality for the purpose of

allowing sheriffs to conduct a "routine" radio check is an

attenuated detention amounting to an illegal seizure of

the person.

3. Whether a warrantless search made in the course

of a detention extended to allow sheriffs to conduct 4

routine radio check of the persons detained is unrea-

sonable.

4. Whether the slashing open by a deputy sheriff of a

sealed, opaque, odorless package in order to examine its

contents, constitutes an unreasonable general search in

violation of the mandate of the Fourth Amendment.

5. Whether the "automobile exception" to the Fourth

Amendment's warrant requirement excuses sheriffs from

obtaining a warrant for the search of sealed, opaque,

2.

wnat

odorless package located on a privately owned, non-

commercial camper truck whose occupants are being

detained without probable cause or founded suspicion of

criminality at a distant location.

6. Whether the decision in this case, made without a

hearing and contrary to Ninth Circuit Rule 3a, deprives

Petitioners of due process and equal protection of the

laws.

CONSTITUTIONAL PROVISIONS AND RULES INVOLVED

The Fourth Amendment to the United States Con-

stitution:

"The right of the people to be secure in their

persons, houses, papers, and effects, against un-

reasonable searches and seizures, shall not be violated,

and no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly

describing the place to be searched, and the persons or

things to be seized.

The Fifth Amendment due process clause:

"No person shall. . . be deprived of life, liberty, or

property, without due process of law... ."

Ninth Circuit Rule 3(a), in pertinent part:

"Pursuant to Rule 34(b), Federal Rules of Appel-

late Procedure, there is hereby established a class of

cases to be submitted without oral argument. There may

be placed in this class any appeal... the questions

raised on appeal are, in the unanimous opinion of a panel

of the court, of such a nature that oral argument would

not be of assistance to the court.

"When a case has been classified for submission

without oral argument, the clerk shall give the parties

notice in writing of such action. .. ."

STATEMENT OF THE CASE

About 6:30 a.m. on April 12, 1977, in rural Nevada,

Deputy Sheriff Bentley went to the reported location of

an accident involving trucks. When he arrived, there

were neither vehicles nor people about, but he noticed

skid marks. Off the road he saw glass, part of a camper

shell, and other accident debris. By radio he informed

Deputy Brown that he was going to investigate a possible

hit-and-run, generally asked for backup, and went looking

for the trucks.

He noticed two trucks on a nearby dirt road. One, a

green and white pickup, drove toward him (that is, in the

direction of the paved highway). Bentley flagged it to a

Stop and started to talk with the driver, Seefeldt. While

he and Seefeldt were conversing, Ficklin left the other

truck, which was parked about 100 yards away, and joined

the two men. He inquired of Seefeldt, "What's hap-

pening, Moe?" addressing him by the name boldly

emblazoned on Seefeldt's hat. Bentley talked with both

men, but neither suggested they were being investigated

for a crime, nor ticketed otherwise charged them with

4.

i ee

any type of offense. He asked Ficklin and Seefeldt for

identification, which both provided. He then detained

both men and initiated a "routine" radio check of them.

While the three men were waiting, Deputies Brown and

Vick arrived. Bentley told the deputies he felt something

was wrong and ordered them to look over the other

truck.

In response to Bentley's "feeling" Brown went to the

other truck. It was a damaged blue and white pickup.

On it he saw a number of large plastic bagged packages.

The plastic was opaque and completely obscured the

contents of ithe packages. He could not ascertain what

was in them visually, by sense of smell or in any other

way. Curious to know what was in the packages, he cut

one open with a pocketknife. Through the cut, he saw a

green, leafy substance which appeared to be marijuana.

Excitedly, he radioed Bentley and told him to watch

Ficklin and Seefeldt. Bentley, who was still detaining

both men, arrested them. The deputy sheriffs then

impounded the trucks and all the packages; obtained a

search warrant; and completed a search of the trucks and

the packages.

In a one-count indictment returned by the grand jury

for the United States District Court, District of Nevada,

Ficklin and Seefeldt were charged with possession with

intent to distribute marijuana in violation of 21 U.S.C.

$841(a)(i). Both men entered pleas of not guilty and made

motions to suppress the evidence. The motions were

denied and the men were tried jointly before a jury, the

5.

Honorable Bruce R. Thompson, Judge presiding. The jury

returned a verdict of guilty as to each defendant.

Ficklin was sentenced to three years in the custody of

the Attorney General, plus a special parole term of two

years, an’ was ordered to pay a fine of $10,000. Seefeldt

was sentenced to pay a fine of $6,000.

REASONS FOR GRANTING THE WRIT

A

The decision below, upholding the warrantless cutting

open and searching of Petitioners’ personal property was

rendered despite the untoward circumstances of the

case: the search took place after Deputy Sheriff

Bentley, who knew nothing about it or its oeccupant[s] ,

stopped a recreational truck [Petitioner Seefeldt's] while

it was lawfully using a public road; after he had

completed his inquiry of both Petitioners Seefeldt and

Ficklin; while he was preventing them from continuing

their travels, so he could make a "routine" radio check

and send newly arrived-upon-the-scene Deputy Brown to

look over a nearby camper truck [Petitioner Ficklin's] ,

on a hunch; and because Deputy Brown wanted to satisfy

his curiosity about the contents of the packages he saw

on the camper truck.

In view of these facts, this case raises a series of

questions of transcendent importance in the interpre-

tation of the Fourth Amendment:

1. Does the "founded suspicion" doctrine enunciated

in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968) and

Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889 (1968),

permit the stop of an automobile on less than probable

cause where a border search is not involved?

In Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280

(1925), this Court determined that persons entitled to use

the public highways and byways "have a right to free

passage without interruption or search [except

upon]... probable cause for believing that their vehicles

are carrying contraband or illegal merchandise."

(267 U.S. at 154). Recognizing that there is some

tension between the dictates of the Fourth Amendment

as interpreted in Carroll and the government's right to

protect its borders, in a series of "border search" cases

this Court has both reiterated the Carroll probable cause

requirement (e.g., Almeida Sanchez v. United States, 413

U.S. 266, 93 S.Ct. 2535 (1973), and modified it. E.g.,

United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct.

3074 (1976); United States v. Ortiz, 422 U.S. 891,

95 S.Ct. 2585 (1975); United States v. Brignoni-Ponce,

422 U.S. 873, 95 S.Ct. 2575 (1975). Its attention has,

however, been directed toward situations involving the

special concerns of the Border Patrol. Apart from the

border search cases, this Court has not enunciated the

permissible bounds for an investigatory stop of an

automobile upon a public highway. (In Rios v. United

States, 364 U.S. 253, 80 S.Ct. 1431 [1960], the issue was

presented, but was left unresolved.)

The question is a recurrent one. Adopting direction

from the seminal cases, Terry and Sibron, courts of

appeal have approved investigatory auto Stops on less

than probable cause. Indeed, the threshhold deter-

mination below, holding valid the Stop of one of the

trucks, was based upon the founded suspicion rational.

(Interestingly, the case relied on by the court, United

States v. Rocha-Lopez, 527 F.2d 476 [9th Cir. 1975], is a

border search case).

The founded or reasonable Suspicion doctrine evolved

in personal contact situations. Terry v. Ohio, supra, 392

U.S. 1; Sibron v. New York, Supra, 392 U.S. 40. See also,

Adams v. Williams, 497 U.S. 143, 92 S.Ct. 192] (1972). In

such cases there is a specific and imminent threat of

criminality and the particular person or persons against

whom suspicion is directed are apparent. A similar

direct contact with threatened crime and supposed

criminals, absent probable cause, is not present when a

law enforcement officer seeks to Stop a vehicle. The

intrusion is based upon more generalized information and

reaches more sweepingly to encompass the guiltless with

the guilty. In such circumstances, founded suspicion

should not provide a constitutionally adequate basis to

conduct an investigatory Stop. In light of the stricture in

Carroll that only probable cause justifies interfering with

free passage on the public highways, this is a question

the Court should address.

2. Is a "routine" radio check within the permissible

scope of a detention?

we re

This Court has not yet addressee itself to the

qualitative and temporal limits of a detention reasonable

in its inception. In Terry v. Ohio, supra, 392 U.S. at 20,

this Court established two criteria against which the

validity of a stop must be tested. The first requires a

focus upon the officers' justification for its inception.

The second asks whether the action is reasonably related

in scope to the circumstances which justified the initial

interference. Implicit in these criteria is the suggestion

that a detention, initially reasonable, may become un-

reasonable because the officers' subsequent action

changes the character of the intrusion either as to its

nature or extent. United States v. Chambliss,

425 F.Supp. 1330 (E.D. Mich. 1977). Cf., United States v.

Brignoni-Ponce, supra, 422 U.S. at 881-882.

Once an investigatory stop has produced full and

complete responses to the detaining officers’ inquiry and

has developed no articulable facts creating probable

cause relating to a particular crime, the justification for

the initial intrustion is dissipated, the people detained

have a right to be sent on their way. A further

detention, for purposes of allowing an officer to make a

"routine" radio check to find out if there are outstanding

warrants for the person being delayed constitutes an

invasion of personal liberty which must be deemed

constitutionelly impermissible. Cf., United States v.

Brig roni-Ponce, supra, 422 U.S. at 881-882.

In general, law enforcement officers are not at

liberty to stop, intrude upon, and detain individuals they

happen to encounter to determine if there are warrants

outstanding against them. Such an intrusion would

obviously not be based upon any cause whatsoever and

might well be likened to a general search. Why then

should it be permitted simply because the initial

detention was proper? It should not, for both the nature

of the inquiry and its duration then become governed,

not by the actions reasonably necessary to be taken by

the officer in the performance of his proper duty

(engendered by the initial intrusion), "but instead by how

long it takes to receive an ‘all clear' from the source or

sources to which he made inquiry." People v. Grace,

32 Cal.App.3d 447, 453, n.3, 108 Cal.Rptr. 66 (1973). See

also, Barber v. Superior Court for County of San Diego,

38 Cal.App.3d 326, 106 Cal.Rptr. 304 (1973); People v.

Bello, 45 Cal. App.3d 970, 119 Cal.Rptr. 838 (1975).

It is not uncommon for law enforcement officers to

conduct "routine" radio checks based solely upon the fact

that they have stopped a motorist for a lawful reason.

Whether such checks amount to general searches and the

attenuated detentions required to conduct them, to

unlawful seizures, is a pressing question. An answer is

needed for the guidance of law enforcement in its

relations with the public; for the instruction of the

people, to guide their response to the directives of

officers of the law; and for the assistance of the judicial

system in dealing with evidence and other consequences

of "routine" radio checks and the detentions engendered

by them.

10.

3. Does the nondescript appearance of a package

provide probable cause for a warrantless search?

The question is presented here in its most direct

form. Deputy Brown, acting without any information or

knowledge other than his fellow deputy's "feeling" that

all was not right, saw a large plastic bundle and cut it

open with his pocketknife to ascertain its contents. His

sole justification was that 3 1/2 years earlier, in a class

for law enforcement personnel, he had been instructed

that marijuana is "sometimes" packaged "like that." The

court below heid that probable cause to search had been

established.

The decision is contrary to countless state court

decisions holding that the size and shape of a potential

container, even coupled with suspicious circumstances

known to the searching officer, is not enough for

probable cause. E.g., People v. Odin, 36 N.Y.2d 382,

368 N.Y.Supp.2d 508 (1975); Remers v. Superior Court of

Alameda County, 2 Cal.3d 659, 67 Cal.Rptr. 202 (1970);

People v. Brown, 24 N.Y.2d 421, 301 N.Y.Supp.2d 18

(1969); People _v. Corrado, 22N.Y.2d 308,

292 N.Y.Supp.2d 648 (1968); People v. Colon, 81 Mise.2d

753, 367 N.Y.Supp.2d 412 (1975); Filitti v. Superior Court

of Orange County, 23 Cal.App.3d 930, 100 Cal.Rptr. 583

(1972). Disregarding the legion of decisions to the con-

trary, the court below chose to establish a rule per-

mitting warrantless searches of potential containers

ll.

because they could be used to package contraband. y If

allowed to stand, the rule will mean that every parcel

may be searched without regard to the notion of privacy,

for it cannot be gainsaid that some type of illegal

Substance "sometimes" is packaged "that way." People

will no longer be entitled to expect privacy in their

personal belongings, so long as all law enforcement

officers can call those belongings "containers."

While it has been acknowledged that the definition of

probable cause is "imprecise" (United States v. Watson,

423 U.S. 4ll, 455, 96 S.ct. 820, 843, n.22 (1976) (Mar-

shall, J., dissenting), it must have some delineation. If

the Fourth Amendment's proscription of unreasonable

searches and seizures and its requirement of probable

Cause is to have any significance, there must be

articulated a definition (even if by a description of

circumstances) which retains for persons their right of

Privacy in the contents of their boxes, packages, purses

and bags and rejects searches based upon the mere

potential of such items to be receptacles for contraband.

Probable cause to search is not meant to be a concept so

broad that it maximizes "the possibility of subjecting

innocent people to the harassment and embarrassment of

involuntary detention and & probing search of person or

I7 The court relied upon United States v. Bu arin-Casas,

484 F.2d 853 (9th Cir. 1973), cert. dente :

(1974). There, the searching officer had had personal

experience with the somewhat distinctive packaging.

Here, the packages were indistinguishable from any

innocently wrapped personal goods being moved by

Private camper truck.

12.

;

?

|

M

effects." United States v. Short, 570 F.2d 1051, 1054

(D.C. Cir. 1978). It is intended to protect the innocent

from sweeping government interference into their per-

sonal effects. Cf., Davis v. Mississippi, 394 U.S. 721,

89 S.Ct. 1394 (1969). This Court should "define" probable

cause to search in the circumstances of this case so as to

give effect to the protective purposes of the Fourth

Amendment.

4. Is the warrantless search of a package constitu-

tionally permissible simply pecause it is located on a

motor vehicle?

The Fourth Amendment stricture against unreason-

able searches and seizures has as its basic purpose the

safeguarding of individual privacy from governmental

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

97 S.Ct. 2476 (1977); Camara v. Municipal Court,

387 U.S. 523, 87 S.Ct. 1727 (1967); Katz v. United States,

389 U.S. 347, 88S.Ct. 507 (1967). See also Boyd v.

United States, 116 U.S. 616, 6 S.Ct. 524 (1886). It

expresses a principle "basic to a free society." Wolf v.

Colorado, 338 U.S. 25, 27, 69 S.Ct. 1359 (1949). The role

of the judicial warrant is deemed of prime importance in

preserving the fundamental privacy urpose of the

Fourth Amendment. See, e.g., United States v. Chad-

wick, supra, 433 U.S. 1; Coolidge v. New mampenire,

403 U.S. 443, 91S.Ct. 2022 (1971); Chima! v. California,

395 U.S. 752, 89 S.Ct. 2034 (1969); Camara v. Municipal

Court, supra, 387 U.S. 523. Hence, a search made in the

13.

CC EESESs;§ 9 QQ ____—————__,,

absence of a warrant is unreasonable, except in certain

narrowly limited, specifically defined circumstances.

United States v. United States District Court, 407 U.S.

297, 92S.Ct. 2125 (1972); Coolidge v. New Hampshire,

supra; Chimel v. California, supra; Katz v. United States,

supra; Camara v. Municipal Court, supra; Jones v. United

States, 357 U.S. 493, 78 S.Ct. 1253 (1958).

In light of the foregoing fundamental principles

sharply limiting the circumstances in which a warrantless

search may be conducted, even assuming probable cause,

is @ warrant for the search of a package excused because

the package is on a private, non-commercial, recrea-

tional truck? In Chadwick this question was not reached

as the relationship between automobile and footlocker

was incidental to the case. Here, only the relationship

between the truck and the package could explain the

gross invasion of privacy which took place when the

package was slashed apart.

This Court, in Chadwick, suggested that the proper

focus must be upon the expectation of privacy in the

object of the search, not on its mobility. A package,

itself mobile or movable because it is situated in a truck,

may have great indicia of privacy, as did the sealed,

opaque, odorless plastic bundles in this case. 2/

4 = a = ype decided that Petitioners had a lower

xpectation of privacy in the plastic bag than the

defendants in Chadwick had in their footlocker. It is

difficult to imagine a more emphatic expression of the

expectation of privacy than that created when a person

carefully wraps the contents of packages so that they

14.

Thus, absent the factor injected by the truck, the

prior decisions of this Court, and particularly Chadwick,

compel the conclusion that Petitioners were entitled to

the neutral judgment of a magistrate before having their

property cut open.

The "automobile exception," (here present by the fact

that the searched property was on a truck), based as it is

upon a person's lowered expectation of privacy in the

vehicle, ought not to have excused the need for a

warrant. For here, it was the personal property, not the

automobile, which was to be searched. The court below

disagreed with the latter analysis and rendered a decision

which conflicts with principles of the recently announced

Chadwick decision. The issue is an important one,

squarely presented here.

Even where the privacy aspect of property is con-

ceded, courts concerned with the "automobile exception"

have looked to "mobility," equating it, as if it were a

talismanie omen, with "exigency." (See, e.g., the opinion

below, Appendix "A", p. 4). The decisions in Chadwick

and in such cases as Coolidge v. New Hampshire, supra,

403 U.S. 443, strongly suggest that the equation miscon-

strues the mandate of the Fourth Amendment. The

latter decisions indicate that where, as here, there is a

cannot be detected by any of the senses and are only

revealed when one of the bundles is cut open. Even in

Chadwick, the footlocker gave a hint of its contents

Because it leaked the cover up-—-talcum powder. Not so

here, where the contents didn't even give off an odor.

15.

clearly demonstrated claim of privacy, the "exigency"

caused by the mobility of the property to be searched is

obliged to give way to the constitutionaliy compelled

preference for a judicial warrant; that the initial inquiry

must be whether it is practicable to obtain a warrant.

They further indicate that if a warrant is practicable,

neither probable cause nor mobility excuses the absence

of a warrant. While the latter analysis appears valid and

in conformity with the dictates of the Constitution, the

issue remains confused and should be clarified by the

Court in this case.

B

The Court of Appeals for the Ninth Circuit recently

promulgated a rule which permits a panel, in its

unfettered discretion, to dispense with oral argument,

Rule 3(a). According to its own announced procedure,

when a panel decides to dispense with oral argument, it

notifies counsel, who may, within ten days, submit

additional authorities. No process for obtaining a review

of the panel's decision to dispense with oral argument

exists.

In the instant case, the panel acted under Rule 3(a).

Petitioners sought review of the 3(a) determination to no

avail. In a timely manner, they filed additional citations

of authority. However, the court's decision was filed, in

its final form, on the tenth day, clearly establishing that

the decision had been made earlier and that no con-

sideration could have been given to the later material

16.

filed by Petitioners.

In all but those cases in which the panel so orders,

litigants are entitled to a full appeal, including oral

argument. A full hearing, including written and oral

argument of counsel, is a due process requirement.

Morgan v. United States, 298 U.S. 468, 480-481, 56 S.Ct.

906 (1936). Petitioners received neither full written nor

oral argument, hence, they were denied due process.

The rule promulgated by the Ninth Circuit permits

standardless, arbitrary decisions depriving some litigants

of a full hearing. Those litigants, among whom are

Petitioners, are invidiously discriminated against, for

they nave no idea what makes a case worthy of oral

argument, they have no basis for appealing the panel's

decision, and they are accorded no procedure for ob-

taining a review of the panel's determination. They are,

thus, denied equality with other litigants.

To compound the injustice in this case, the panel did

not follow its own procedure. Although announcing an

opportunity to call to its attention additional authorities

before making its decision, the panel made its decision

before the opportunity had expired.

The issues presented to the court below were of

substance. The court did not consider them in a full

hearing nor in accordance with its own rule. It deprived

Petitioners of due process and equal protection of the

law. Since its rules and procedures make possible such

deprivation of Fifth Amendment rights, they should be

17.

reviewed by this Court.

CONCLUSION

For the foregoing reasons, the Petition for a Writ of

Certiorari should be granted.

Respectfully submitted,

GOLDIN & GOLDIN

By MARTHA GOLDIN

Attorneys for Petitioners

18.

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

)

FT an

Plaintiff-Appeliee, | Re. 19-8952

77-3220

v. )

RAYMOND WESLEY FICKLIN, JR., MEMORANDUM

and RICHARD PAUL SEEFELDT, ) 9

Defendants-Appellants. ) ¥ \b © \918

ae iS ac ke a A ger jr.

niel}* of

Appeal from the United States District Court

for the District of Nevada

Before: WRIGHT, CHOY and TANG, Circuit Judges.

Appellants were convicted of possessing marijuana

with intent to distribute. On appeal, they contend that:

(a) their initial stop by police was illegal;

(b) a subsequent search occurred during an im-

proper, attenuated detention,

(ec) there was no probable ce .se to search;

(d) the warrantless search was per se unrea-

sonable; and

(e) there was no evidence that appellant Seefeldt

possessed the marijuana.

We find these contentions to be without merit.

APPENDIX "A"

FACTS:

Upon arriving at the scene of a traffic accident after

the vehicles had departed, Officer Bentley observed a

camper shell and debris. After requesting assistance

from Officer Brown, Bentley saw two pickups, one of

them damaged, on a dirt road off the main highway. The

drivers of the vehicles approached Bentley, away from

the damaged vehicle. Brown arrived and proceeded to

investigate the damaged vehicle. He observed what he

recognized to be large bags of marijuana in the back of

the pickup and confirmed this belief by making a small

cut in one bag.

DISCUSSION:

A brief investigatory detention is valid when the

detaining officer has founded suspicion of criminal

activity. United States v. Rocha-Lopez, 527 F.2d 476,

477-78 (9th Cir. 1975). The circumstances of the

accident coupled with appellants’ suspicious behavior

(hurriedly fleeing the scene of the accident, abandoning a

camper shell and meeting the officer away from the

damaged truck), gave the officer a reasonably founded

Suspicion of criminal activity which led him to investi-

gate.

The investigatory stop did not become unlawful

because it was extended. In the period between the stop

and the arrest, the officer's Suspicion of criminal activity

increased. He was justified in detaining the suspects

until they plausibly explained their behavior.

A-2

Because the scope and duration of the investigative

stop was reasonably related to the circumstances justify-

ing it, the detention was not unduly attenuated and not

unlawful. Terry v. Ohio, 392 U.S. 1, 19-20 (1967).

Regarding the ensuing search, two issues are pre-

sented: (1) whether the searching officer (Brown) acted

on probable cause in cutting a two-inch slit in one bag

found on the damaged truck; and (2) whether the search

was per se unreasonable because conducted without a

warrant.

Assuming that the searching officer did not have the

benefit of information which had been revealed to the

detaining officer (Bentley), nevertheless he had suffi-

cient independent knowledge of the sequence of events

which, when coupled with his observation of what he

recognized as bundles of marijuana, supplied probabie

cause to search one bag. See United States v. Patterson,

492 F.2d 995, 997 (9th Cir. 1974).

This issue is controlled by United States v. Bugarin-

Casas, 484 F.2d 853 (9th Cir. 1973), cert. denied,

414 U.S. 1136 (1974), in which we held there was probable

cause to justify a warrantless search where, after a valid

stop based on founded suspicion of an unrelated offense,

an agent saw what he recognized to be packaged mari-

juana prior to initiating a search. Id. at 854.

It is not the case, as appellants contend, that since

the stop was initially to investigate the possibility of a

hit-and-run accident, the search of the bag was im-

permissibly broad. The officer saw the bags before he

A-3

Started to search. His search was based on probable

cause that contraband was being transported, not on

probable cause that he would uncover evidence of a hit-

and-run offense.

Appeliants argue that even with probable cause the

search was unreasonable because it was made without a

warrant. We find that the exigencies of the situation

were sufficient to allow a warrantless search.

The search fell within the "automobile exception" to

the general warrant requirement. Chambers v.

Maroney, 399 U.S. 42, 48 (1970). Appellants rely on

United States v. Chadwick, U.S. , 97 S.Ct. 2476

(1977), for the proposition that a search of "luggage"

inside a vehicle is not within the automobile exception.

The case before us is distinguishable.

Here, appellants could not have had as great an

expectation of privacy in plastic and burlap bags (which

the officer immediately recognized as the type custo-

marily used to haul marijuana) as the Chadwick appel-

lants had in a double-locked footlocker. __ US. at

97 S.Ct. at 2484. Moreover, the exigency here still

existed at the time of the search. See United States v.

Evans, 481 F.2d 990, 994 (9th Cir. 1973) (warrantless

search of footlocker in an automobile upheld, finding

exigent circumstances.

Other courts of appeals have construed the auto-

mobile exception to include searches of briefcases,

Suitcases and footlockers where there was probable cause

to believe the containers concealed contraband, United

A-4

States v. Soriano, 497 F.2d 147, 149 (5th Cir. 1974), or

narcotics, United States v. Tramunti, 513 F.2d 1087, 1104

(2d Cir. 1975).

Finally, appellant Seefeldt argues that there was

insufficient evidence from which the jury could conclude

that he possessed the marijuana.

"Possession" encompasses such dominion and control

as to give power to dispose of the drug. While mere

association with or proximity to property on which drugs

are found is insufficient, it may be considered in

connection with other circumstances to support a finding

of possession which may be joint or constructive as well

as actual and exclusive. United States v. Zumpano,

436 F.2d 535, 538 (9th Cir. 1970); Arellanes v. United

States, 302 F.2d 603, 606 (9th Cir.), cert. denied, 371 U.S.

930 (1962).

There was evidence from which the jury could

conclude that Seefeldt assisted in reloading the mari-

juana into the damaged truck, remained behind to clean

up accident debris, lied to a passerby regarding the

direction in which the damaged truck had gone, was

found with Ficklin on a dirt road off the main highway,

attempted to keep the approaching officer away from

the marijuana-laden vehicle, misrepresented his relation

with Ficklin, made statements inconsistent with other

evidence, and was linked to Ficklin by fingerprint

evidence in both trucks.

We are satisfied that there was sufficient evidence

A-5

: ; :

rom which the jury could conclude beyond a reasonable

doubt that Seefeldt possessed the marijuana

The convictions are affirmed.

Oe ee Se eee

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, NO. 77-2923

Plaintiff-Appellee, NO. 77-3220

v.

ORDER

RAYMOND WESLEY FICKLIN, JR.,

and RICHARD PAUL SEEFELDT,

Defendants-Appellants.

ee ee ee ee ee ee ee ee”

Before: WRIGHT, CHOY and TANG, Circuit Judges.

The panel as constituted in the above cases 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 en bane sugges-

tion, and no judge of the court has requested 4 vote on it.

Fed. R. App. 35(b).

The petition for rehearing is denied and the

suggestion for a rehearing en banc is rejected.

ai: n

Mar 9

* <8, 197

‘8

Emi)

APPENDIX "B"