Petition — Curtis v. United States

Supreme Geust,

PILED

W8-121 | gues 1978

_ MICHAEL RODAK, JR., CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM

1978

THEODORE THOMAS CURTIS, Petitioner

and

KEVIN ANDREW CURTIS, Petitioner

Vv.

UNITED STATES OF AMERICA, Respondent

PETITION FOR WRIT OF

CERTIORARI TO THE

UNITED STATES COURT

OF APPEALS FOR THE

NINTH CIRCUIT

ROBERT J. HOOKER

120 West Broadway

La Placita Village

Tucson, Arizona 85701

(602) 622-6708

ATTORNEY FOR PETITIONERS

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM

1978

NO.

THEODORE THOMAS CURTIS, Petitioner

and

KEVIN ANDREW CURTIS, Petitioner

Vv.

UNITED STATES OF AMERICA, Respondent

PETITION FOR WRIT OF

CERTIORARI TO THE

UNITED STATES COURT

OF APPEALS FOR THE

NINTH CIRCUIT

ROBERT J. HOOKER

120 West Broadway

La Placita Village

Tucson, Arizona 85701

(602) 622-6708

ATTORNEY FOR PETITIONERS

INDEX

OPINION BELOW .. +++ e+ «© »

JURISDICTION <2 a a

QUESTIONS PRESENTED. .

STATEMENT OF THE CASE .. .

REASONS FOR GRANTING THE WRIT.

CONCLUSION ... -

CERTIFICATE OF SERVICE ... .-

APPENDIX

Opinion Ninth Circuit

Court of Appeals. .- +--+ «+ -

30

31

A-l1 thru A-9

TABLE OF CASES

Araujo-Lopez v. United States,

405 F.2d 466 (9th Cir. 1969).

Arnold v. North Carolina,

B76 UscOe FIS 20 © 2

Chapman v. United States,

365 U.S. 610 (1961).

Chimel v. California,

394 U.S. 752 (1969).

Coolidge v. New Hampshire,

403 U.S. 443 (1971).

Fuller v. Alaska,

2 | eee

Heflin v. United States,

2 i >) ee ee

In re Winship,

397 U.S. 358, 90 S.Ct. 1068

25 L.Ed.2d 368 (1970). .

Katz v. United States,

oe wie, 267, oe &.Ct. 507,

19 L.Ed.2d 576 (1967).

Mullaney v. Wilbur,

421 U.S. 684, 703 n.31,

95 S.Ct. 1881, 44 L.Ed. 2d

408 (1975) <- S-- « = «©

Stoner v. California,

376 U.S. 483 (1964). . « -«

ii

PAGE

20

24

24

29

12,13,14,19

29

20

Table of Cases

Taglianetti v. United States,

394 U.S. 316, nolL « 2 © @ «

United States v. Castillo,

524 F.2d 286 (5th Cir. 1975)

United States v. Coplen,

541 F.2d 211 (9th Cir. 1976)

United States v. Curtis,

562 F.2a 1153 (1977)

rehearing and suggestion for

rehearing en banc denied,

(October 12, 1977)... . -

United States v. DeNovo,

523 F.2a 19/7 (ith Cir. 1975),

cert. denied 423 U.S. 1016 (1975)

United States v. Epperson,

485 F.2d 514 (9th Cir. 1973).

United States v. Frol,

518 F.2d 1134 (8th Cir. 1975)

United States v. Holmes,

521 F.2d 859 (5th Cir. 1975).

United States v. Hufford,

539 F.2d 32 (9th Cir. 1976)

United States v. Jackson,

526 F.2d 1236 (5th Cir. 1976)

United States v. Kandlis,

432 F.2d 132 (9th Cir. 1972).

334

PAGE

28

26

1, 15, Li

28

28

12,14,16,17

12,14,16,17

28

23,24,25

TABLE OF CASES

United States v. Majoureau,

474 F.2d 766 (9th Cir. 1973).

United States v. Maspero,

496 F.2d 1354 (5th Cir. 1974)

United States v. Matlock,

415 U.S. 164 (1974) . - += -

United States v. Pretzinger,

542 F.2nd 517 (9th Cir. 1976)

United States v. Pruett,

551 F.2d 1365 (5th Cir. 1977)

United States v. Stroupe,

538 F2d 1063 (4th Cir. 1976).

United States v. White,

401 U.S. 745 (1971) . « © « «

Williams v. United States,

418

k*xekeekkekkkkkkkkkkkik &

F.2q 159, 162 (9th Cir. 1969)

Fourth Amendment,

United States Constitution

21 U.S

-C. §295(a)

21 U.S.C. §841(a) (1)

21 U.S.C. §952 (a)

21 U.S

21 U.S

18 U.S

- §960(a) (1)

oC

-C. §963 (2)

C

§2

iv

PAGE

25

28

21

10,12,15,16,

17,25,28

28

28

21

27

x &

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

NO.

THEODORE THOMAS CURTIS, Petitioner,

and

KEVIN ANDREW CURTIS, Petitioner,

Vv.

UNITED STATES OF AMERICA, Respondent.

A

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

The Petitioners, THEODORE THOMAS CURTIS

and KEVIN ANDREW CURTIS, respectfully pray that

a Writ of Certiorari issue to review judgment

and opinion of the United States Court of

Appeals for the Ninth Circuit entered in this

proceedings on October 12, 1977.

OPINION BELOW

The opinion of the Court of Appeals

reported at 562 F.2d 1153 (9th Cir. 1977)

appears in the Appendix hereto.

JURISDICTION

The judgment of the Court of Appeals for

the Ninth Circuit was entered on October 12,

1977. A timely Petition for Rehearing en banc

was denied on March 10, 1978. The order of

Modification of sentence was issued on April 3 ,

1978.

It is strongly urged that this case be

decided on the merits though not timely filed.

In cases such as Heflin v. United States,

358 U.S. 415, and Taglianetti v. United States,

394 U.S. 316, n.1, where this Court noted that

the time limitation "is not jurisdictional" and

"does not bar our exercise of discretion to

consider the case", the authority of this Court

to waive the time limits has been made clear.

In Arnold v. North Carolina, 376 U.S. 773, the

petition was filed two weeks late and no exten-

sion had been sought nor had any extenuating

circumstances been shown. However, this Court

granted the petition. Likewise, in Fuller v.

Alaska, 393 U.S. 80, where the petition was

filed a month after expiration of the time

limits, this Court recognized the importance

of resolving an issue of retroactivity and

granted the petition in spite of its

untimeliness.

This case raises the question of Fourth

Amendment rights affected by the surreptitious

implantation and use of electronic tracking

devices in vehicles. In the instant case,

there is a crucial need for review of this

decision by the Ninth Circuit. In the Heflin,

supra, case, an untimely petition was granted

because the Court felt it necessary to resolve

a split in the Circuits. Here, Also, the

Circuits have reached opposite positions con-

cerning the scope of the Fourth Amendment's

protection. This is a crucial question which

needs to be resolved promptly upon the merits

because the use of secretly installed and

judicially uncontrolled surveillance devices

has become a widespread law enforcement practice.

The validity of this practice has been upheld

>

in the Ninth Circuit and denied in the Fifth

Circuit. This Court's guidance in the matter

is an urgent necessity.

QUESTIONS PRESENTED

1. Whether the surreptitious installation

and use of a transponder in the petitioners’

aircraft without judicial approval or any sub-

sequent judicial safeguards violated the

petitioners' Fourth Amendment rights?

A. Whether the initial judicially

unsupervised covert installation of the tracking

surveillance device infringed upon petitioners'

reasonable expectation of privacy, violating

their Fourth Amendment rights?

B. Whether the judicially controlled

continuous use of the tracking surveillance

device constitutes an unreasonable invasion of

petitioners' privacy violating their Fourth

Amendment rights?

C. Whether consent to search may be

given by the lessor of an aircraft when the

lessee has finalized a lease agreement, has

the paramount possessory interest in the airplane

and is not involved in any joint enterprise with

the lessor?

D. Whether there was probable cause

to implant the electronic surveillance device

when the only facts known to the government

agents were innocuous and susceptible of innocent

construction?

2. Whether there was probable cause to

search the vehicle of a co-defendant where there

were few circumstances suggesting criminal

activity and all were capable of reasonable

innocent interpretation?

3. Whether there was sufficient evidence to

sustain petitioners’ conviction for possession

of marijuana where there was no showing of

actual or constructive possession as defined and

demonstrated by previous court decisions?

STATEMENT OF THE CASE

Petitioner, Theodore Curtis, was an

experienced pilot. He rented a Piper Navajo

from ORCO Aviation and returned it on October 15,

1976. The general manager of ORCO suspected the

plane had been used to transport marijuana.

When Mr. Curtis arranged to lease the plane

again, the manager notified agents of the United

States Customs Service of his suspicion. The

general manager informed the agents that there

were apparent discrepancies between the proposed

itinary and fuel receipts, that seats in the air-

plane were resoved and improperly reinstalled,

and that the cabinet door was damaged. The

manager later admitted that a change in the

flight plan from a trip to New York to a trip to

Las Vegas was probably communicated to him, thus

account_ng for the apparent fuel receipt

discrepancy. Further, the manager also admitted

that he had no knowledge of the condition the

seats were in before the petitioner leased the

plane. These seats were often removed and rein-

stalled by pilots flying patient transport for

doctors.

On the basis of the above representations,

on November 2, 1976, the Customs Agents obtained

the permission of the manager to install the

electronic tracking device, a transponder, in

the aircraft. Despite the fact that a physical

trespass was required and that there were

absolutely no judicial guidelines to govern the

procedure, a warrant was not obtained at any

point.

On November 3, 1976, with the transponder

in place, Theodore Curtis began a series of

flights which were tracked by the transponder.

On the evening of November 10, 1976, the plane

was tracked in several flights, however, its

signal was periodically lost. A Customs aircraft

was dispatched to intercept the Piper Navajo, but

it could not be located. Officers then went to

an abandoned airstrip in the area. The Customs

plane, equipped with an infrared surveillance

device, arrived about 1:00 a.m., November ee

1976. It detected a plane which could have been

a Piper Navajo, although there was no way to

confirm this for sure or to be certain that it

was Mr. Curtis' plane. After the plane was

sighted, Customs Officers observed two land

vehicles approach the parked plane. No activity

between the aircraft and these vehicles was

observed.

When the vehicles drove off, they were

followed by the Customs aircraft. After the

two separated, ground officials stopped the

truck and camper, driven by Kevin Curtis. The

officers searched the truck and seized approxi-

mately 400 pounds of marijuana.

Meanwhile, the aircraft belonging to Ted

Curtis was traced to the Litchfield, Arizona,

area. Customs Agents proceeded to Litchfield

airfield and observed the Piper Navajo rented

by Theodore Curtis. Agents approached the air-

craft with weapons drawn and arrested the

occupants. Theodore Curtis was arrested at this

time.

On December 8, 1976, petitioners were

indicted in the United States District Court,

For the District of Arizona, for (1) Count lI,

conspiracy to violate 21 U.S.C. §295(a) and

§960(a)(1), in violation of 21 U.S.C. 963;

(2) Count II, importation, and aiding and

abetting in the importation of marijuana, in

violation of 21 U.S.C. §952(a), and §960(a) (1)

and U.S.C. §2; (3) Count III, possession with

intent to distribute marijuana, in violation of

21 U.S.C. §841(a)(1) and (b), and 18 U.S.C. §2.

On January 24, 1977, petitioners brought

motions for suppression of evidence and state-

ments. The Honorable Russell E. Smith denied

the motion to suppress the evidence seized from

the vehicle driven by petitioner, Kevin Curtis;

denied the motion to suppress evidence obtained

by use of the transponder in the aircraft;

granted the motion to suppress evidence seized

from the aircraft; granted petitioners’ motion

to suppress incriminating statements; denied

the motion to suppress co-defendant, John

Dulin's, incriminating statements.

Following these rulings, the matter was

submitted for trial to the Court on Count III of

the indictment only on the basis of the record

of the motions to suppress statements and a

stipulation by counsel that the substance seized

from the pickup truck and camper was 420 pounds

of marijuana. On March 8, 1977, petitioners

were found guilty of Count III of the indictment.

On April 18, 1977, sentence was imposed and

a timely appeal was filed. 1:1 October 12, 1977,

an opinion affirming petitioners’ conviction

was filed. On November 14, 1977, a Petition for

Rehearing en banc was filed. It was denied on

March 10, 1978. The Court of Appeals relied

upon United States v. Pretzinger, 542 F.2d 51/7

(9th Cir. 1976) for their decision concerning

use of the transponder and its Fourh Amendment

implications.

Petitioner, Theodore Curtis, sought a

modification of his sentence on March 29, 1978.

On April 3, 1978, an Order from the United

States District Court of Arizona was issued

modifying the petitioner's sentence so that he

could serve a six-month term of incarceration

in a half-way house type program instead of full

institutional incarceration.

REASONS FOR GRANTING THE WRIT

1. This case brings squarely before the

Court the question of Fourth Amendment rights

affected by the surrepticious implantation and

use of electronic tracking surveillance devices

on motor vehicles generally and aircraft in

particular. This decision by the Ninth Circuit

Court of Appeals which is in direct conflict with

that of the Fifth Circuit is domonstrative of the

substantial practical need for authoritative

guidance regarding this area from this Court.

This guidance is especially crucial at a time

when the sophistication of electronic surveil-

lance devices threatens the most fundamental

notions of privacy. Uniform Judicial Standards

must be firmly established to protect individuals

from the indiscriminate, continuous surveillance

that scientific advances have made a reality.

A. The Ninth Circuit has held that

government agents must obtain judicial approval

in the form of a warrant, based on probable

cause, if the planting of an electronic surveil-

lance device entails intrusion into an area

which is entitled to a reasonable expectation of

11

privacy under the Fourth Amendment. United

States v. Pretzinger, 542 F.2d 517 (9th Cir.

1976); United States v. Hufford, 539 F.2d 32

(9th Cir. 1976). The placement of an electronic

device in a protected area constitutes a

"search". United States v. Pretzinger, supra.

The crucial question in determining whether such

a search has taken place is whether there was

a reasonable expectation of privacy which was

violated by the intrusion.

In United States v. Holmes, 521 F.2d 859

(5th Cir. 1975), the Court of Appeals dealt with

this question in the context of a "beeper" (an

electronic tracking device) affixed to the auto-

mobile in which certain suspects were riding.

The Court recognized immediately that the install-

ation of the tracking device was a search within

the meaning of the Fourth Amendment. In doing

so, it refuted the government's contention that

the Appellants had no reasonable expectation of

privacy when the automobile was parked in a

public place or was moving about public highways.

Relying on Katz v. United States, 389 U.S. 347,

88 S.Ct. 507, 19 L.Ed.2d 576 (1967) the Fifth

12 | 13

Circuit stressed the fact that possible public

¥ accessability to the vehicle did not destroy the

expectation of privacy:

"When a person parks his car on

a public way, he does not thereby

give up all expectations of privacy

in his vehicle. There is a right

to be secure even in public."

521 F.2d at 864.

Katz, supra, is the most obvious example of this

as a public telephone booth was involved.

The fact that the vehicle, while moving

on the public highway, was easily observable

likewise provided no justification for placing

an electronic tracking device on the automobile.

The Court felt that this was an intrusion beyond

mere visual surveillance. It is a search at a

time when an individual may reasonably expect to

be alone in his car. The Court noted that few

would argue that an individual by walking on a

public street has given up his expectation of

privacy so that secretly implanting a tracking

device on his person would be unobjectionable

from a privacy standpoint.

The Holmes Court then concluded by

stating that the failure to obtain a warrant

for installation of the tracking device was

fatal to the search and the admissability of its

fruits.

United States v. Hufford, 539 F.2d 32

(9th Cir. 1976) also dealing with the search of

an automobile through use of a "beeper" reached

the opposite conclusion. The Ninth Circuit

Court of Appeals recognized that a search was

involved, i.e., an “exploratory quest for

evidence". However, the Court felt that there

was no reasonable expectation of privacy. This

belief was based upon the public nature of

operating a vehicle on the public roads.

Invoking Katz v. United States, supra, the Court

noted that the driver of an automobile knowingly

exposed his movements to the public and there-

fore was not entitled to Fourth Amendment

protection.

The Court did realize, however, that a

Fourth Amendment violation could occur while the

"beeper" was being installed. When a second

beeper was attached to a vehicle located in a

garage, drug agents obtained a warrant.

Commenting on this procedure, the Court said:

"Had the agents not resorted to

a warrant, entrance into the

garage and the opening of the

truck's hood would have been an

invasion of an area in which

Hufford had a reasonable expec-

tation of privacy."

539 F.2d at

Pretzinger, supra, apparently has

extended the holding that motor vehicles are

subject to "bugging" because of their use in

public to include aircraft. Pretzinger, supra,

was similar to the instant case in that a trans-

ponder was installed in an airplane which was

suspected of transporting marijuana. The Court

asserted its position that no reasonable expec-

tation of privacy was violated, analogizing

travel through airspace with an automobile

traveling on the highway.

In the decision by the Ninth Circuit

Court of Appeals in the instant case, United

States v. Curtis, 562 F.2d 1153 (1977), the Court

16

was careful to point out the conflict in the The Honorable Judge Ely, in footnote 2, speaking

z Circuits, concerning the interpretation of the ( for himself noted:

Fourth Amendment in the context of surrepticious "The author of this opinion joins

electronic surveillance of vehicles: his Brothers in resolving the

"The appellants vigorously comp Lain questions relating to the trans-

that their Fourth Amendment guaran-~ ponder, but he does so only because

tees were infringed by reason of he cannot logically distinguish

the installation of the transponder Hufford and Pretzinger and thus

and the introduction of evidence believes that he had no -hoice

derived from its use. Their argu- save to abide by the decisions in

ments bear considerable weight, those cases. If free to do other-

: having been adopted by the Fifth ; wise, he would follow United States

Circuit sitting en banc in United v. Holmes .. ." 562 F.2d at 1156.

States v. Holmes, 537 F.2d 22/7 It is apparent that the ’” ‘act in the

(5th Cir. 1976), affirming 521 F.2d Holmes decision with the Pretzin; tis, line

859 (5th Cir. 1975). Our Circuit, of cases places an extreme hardsain on the

however, has adopted an approach judiciary and on the individuals whose Fourth

contrary to that taken in Holmes. Amendment rights are severely curtailed in the

United States v. Pretzinger, 542 Ninth Circuit. Encroachment by sophisticated

F.2d 519 (9th Cir. 1976), United surveillance devices should be recognized as a

States v. Hufford, 539 F.2d 32 threat to the privacy of the individual beyond

(9th Cir. 1976) cert. denied anything imaginable in the last decade. Ours is

429 U.S. 1002, 97 S.Ct. 533, 50 L.Ed. | . an age in which the entire culture has been

2d 614 (1976)." 562 F.2d at 1185. | . integrated with the necessity of transporting

13

one's self on public thoroughfares. It is more

imperative than ever to protect the privacy

that remains. The fact that our technological,

transportation-orientated society has forced

citizens to expose themselves to public view

should not be used as a justification for further

invading their remaining privacy.

B. The decision below also raises reoccurr-

ing questions as to the standards to be used and

guidelines to be imposed for continuous use of

surveillance devices. As the Ninth Circuit

Court of Appeals noted in its opinion, law

enforcement agencies should not have carte

blanche power to conduct continuous surveillance

of varying numbers of people. However, by up-

holding the placement of a monitoring device

with no requirement of judicial safeguards, the

Court has encouraged this type of conduct.

Theoretically, surveillance could continue un-

checked and unsupervised for months or years into

the future. This type of surveillance could

monitor an individual's every movement regardless

of the continued existence or non-existence of

the original cause for implanting the device.

19

Use of the "beeper" is a method of

electronic surveillance much like the surveillance

accomplished by wire taps. In that area,

Congress was so concerned with surveillance that

it regulated the use of wire taps in compliance

with Katz, supra, 18 U.S.C. 2519, et seq. The

instant case provides this Court with an oppor-

tunity to institute the guidelines necessary to

prevent abuses of the Fourth Amendment inherent

in unsupervised electronic surveillance of an

individual's movement.

C. A related question in this area is one

of consent. The lower Court ruled that the

lessor of the aircraft had the authority to con-

sent to the implantation of the tracking device

even though the Appellant had finalized the

lease agreement (562 F.2d at 1155, footnote 1).

Appellant strongly asserts that this view is in

direct conflict with the law in other analogous

situations. This conflict should be clarified

and resolved by this Court.

As the lessee of the aircraft, Mr.

Curtis had an existing possessory interest in it.

The manager of the airfield recognized this and

20

admitted that at the time of the implantation,

the aircraft was "basically his plane and it was

waiting for him to come and pick it up and fly

off". (Reporter's Transcript, Volume I). This

situation is clearly analogous to the landlord-

tenant situation.

In Chapman v. United States, 365 U.S.

610 (1961), the owner of a house, suspecting

that his tenant was engaged in illegal activity,

consented to the police entering and searching

the house. This Court held that the search was

unconstitutional as a landlord has no right to

consent to the search of the tenant's room.

Stress was placed on the fact that Fourth Amend-

ment rights should not hinge on property law

distinctions.

This view was further reinforced by

Stoner v. California, 376 U.S. 483 (1964), which

extended the protection to a hotel room. The

Court rejected the argument that ownership

coupled with access for limited purposes during

rental periods constituted authority to consent

to a search. Stoner v. California, 376 U.S. at

489.

This is not a situation where there was

a joint venture with the air service manager.

Therefore, third party consent is invalid. By

virtue of the lease agreement, Mr. Curtis had

the sole possessory interest and he did not

intend the manager to be a partner in it. The

United States v. Matlock, 415 U.S. 164 (1974),

and United States v. White, 401 U.S. 745 (1971),

line of cases are inapplicable in this situation

because the lessee was not sharing co-equal

access to the plane. On the contrary, he had

reserved it for himself only. The decision of

the lower Court is in conflict with the appli-

cable decisions of this Court concerning consent

and therefore review is fully warranted.

D. The Appellant also asserts that there

was no probable cause by which the implantation

of the transponder could be justified. The

lower Court's decision that there was probable

cause stands in contrast to other decisions

making a finding of probable cause.

A review of the information given to

the government agents clearly indicates that a

finding of probable cause was unwarranted.

21

22

According to the government agent, the

reliable information which was given by the air-

port manager was (1) that discrepancies appeared

to exist between the announced itinerary and

fuel receipts; (2) the seats had been removed

and reinstalled improperly; and (3) a cabinet

door was damaged. The manager's belief that the

propellers of the aircraft indicated use on an

unimproved landing strip and that he observed a

vegetable debris which might be marijuana seeds,

was not conveyed to the government agents before

they installed the transponder (Reporter's

Transcript Volume I, 18, 80, 92-93). Each of

these factors has been shown to be innocuous

rather than suspicious. Mr. Curtis originally

planned a trip to New York. However, the air

service manager admits he was possibly told of

Appellant's change in plans--a trip to Las Vegas.

All fuel receipts reflect this trip to Las Vegas.

The manager was also not sure whether

the seats of the airplane were properly installed

when the Appellant rented the plane. The air-

craft had been used by doctors transporting their

patients and the seats were often removed and

reinstalled by the pilot.

The manager saw what he believed to be

marijuana seeds in the plane. He described them

as similar to popcorn seeds. Marijuana seeds

are dissimilar to popcorn and no chemical test

was performed on the seeds. In fact, this infor-

mation was not given to the law enforcement

agents until implanting the device had begun. At

that time, the agent also observed a vegetable

type of debris in the plane. He was not able to

identify it as marijuana despite his extensive

experience with drug-related offenses. Again,

no chemical analysis was conducted. Also, a

check of the Appellant's background revealed that

he had no prior criminal record or activities.

Appellant feels that the case clearly

shows there was not enough reliable information

to constitute probable cause. Probable cause

cannot be established by reliance on circum-

stances which are susceptible of a variety of

credible interpretations not necessarily

indicative of criminal conduct. United States v.

Kandlis, 432 F.2d 132 (9th Cir. 1972). This

Court should review the determination of the

23

24

lower Court that probable cause existed and

reaffirm the holding of United States v. Kandlis,

supra.

2. The lower Court also held that there

was probable cause to search the pickup truck

driven by Kevin Curtis. Petitioner, Theodore

Curtis, has standing to attack the search as

he was convicted of a possessory offense based

on the contraband seized from Petitioner, Kevin

Curtis. The decision of the lower court is in

need of review as it is in conflict with the

various decisions determining the presence of

probable cause.

In order to justify this search, probable

cause that the truck contained contraband must be

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

443 (1971). This search cannot be justified as

a search incident to arrest, as the co-defendant

was lying on the ground, handcuffed, at gun point,

some distance from the vehicle, Chimel v.

California, 394 U.S. 752 (1969). Nor was it

authorized by the driver's consent.

In examining the information available

to law enforcement officials at the time, an

absence of probable cause is obvious. The

agents lost the signal on Ted Curtis’ plane on

more than one occasion while attempting to track

him, therefore, they could not be certain that

the truck was actually near the Curtis airplane.

Even if this information was available, there

was no sign of the aircraft flying into Mexico.

On the ground, there was no sign of suspicious

activity such as loading or unloading. As noted

before, the activities of Ted Curtis himself

were innocuous rather than suspicious.

As the Court noted in United States v.

Kandlis, supra, probable cause cannot be generat-

ed by circumstances, reliance upon which are

"susceptible to a variety of credible interpre-

tations not necessarily compatible with nefarious

activity". See, also, United States v. Majourau,

474 F.2d 766 (9th Cir. 1973).

The instant case is clearly distinguish-

able from cases such as Pretzinger, supra, where

marijuana seeds were positively identified in

the interior of the plant; the plane was traced

to Mexico; and bags were observed in the car that

had met the plane. Likewise, in United States v.

25

Coplen, 541 F.2d 211 (9th Cir. 1976), it was

established by visual observation that marijuana

debris was in the aircraft which had been

positively tracked into Mexico.

This Court should review the finding

that probable cause to search the truck existed,

in light of the paucity of circumstances indicat-

ing probable cause.

3. In this Appeal, petitioners contend as

they did at the lower Court level, that there

was insufficient evidence to convict them of

possession of marijuana with the intent to

distribute, 21 U.S.C. §841(a)(1). The conviction

based on the evidence presented conflicts sharply

with preceding decisions regarding sufficiency of

evidence, in general, and the element of

possession, in particular. Therefore, the

authority of this Court is necessary to clarify

and reaffirm the law in these areas.

As the preceding reviews of the evidence

have shown, there was no way the government

agents could be certain that they were constantly

on the track of Theodore Curtis' plane. Assuming

that it was his plane which made contact with the

26

pickup truck, there was no evidence that mari-

juana was loaded from the airplane to the truck

or moved in any way. This is noteworthy consider-

ing the advanced surveillance in use--a forward

look infrared device which can detect a human

being on the ground from a height of 8,000 feet.

The aircraft never crossed the border. No

evidence of any marijuana residue, or anything

else, was admitted into evidence from the plane.

In order to convict petitioners of the

offense, possession must be proved. There is

absolutely no evidence that petitioner, Theodore

Curtis, was in actual possession of the marijuana

which was seized from the camper. Therefore, if

the conviction is sustainable, proof of construc-

tive possession must be established. To prove

constructive possession, the government must

prove beyond a reasonable doubt that the accused

knows of the presence of the drug and has the

power to exercise dominion and control over it,

Williams v. United States, 418 F.2d 159, 162

(9th Cir. 1969). Mere presence at the location

of a controlled substance is not sufficient to

prove possession. See, e.g., United States v.

28

Pruett, 551 F.2d 1365 (5th Cir. 1977); United

States v. Castillo, 524 F.2d 286 (5th Cir. 1975);

United States v. DiNovo, 523 F.2d 197 (7th Cir.

1975) cert. denied 423 U.S. 1016 (1975);

Araujo-Lopez v. United States, 405 F.2d 466

(9th Cir. 1969). Likewise, proof of participa-

tion in a narcotics venture is not sufficient to

support a conviction for possession in the

absence of proof of dominion and control. United

States v. Jackson, 526 F.2d 1236 (5th Cir. 1976).

Presence in the area of contraband with awareness

of its location is also insufficient to support

a conviction for possession, if dominion and

control is not proved. United States v. Maspero,

496 F.2d 1354 (5th Cir. 1974). In cases similar

to this one, the evidence has been held insuf-

ficient to sustain a conviction. See United

States v. Stroupe, 538 F.2d 1063 (4th Cir. 1976);

United States v. Epperson, 485 F.2d 514 (9th Cir.

1973); United States v. Frol, 518 F.2d 1134

(8th Cir. 1975); United States v. Pretzinger,

supra, 542 F.2d 517.

It is axiomatic that the prosecution

must prove every element of the offense charged

29

beyond a reasonable doubt. In re Winship,

397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368

(1979). In order to support a conviction,

inferences of guilt must be drawn from facts

from which an innocent inference cannot reason-

ably be drawn. Mullaney v. Wilbur, 421 U.S. 684,

702 n.31, 95 S.Ct. 1881, 44 L.Ed.2d 408 (1975).

In the instant case, considering the scanty

evidence, the existence of alternative, reason-

able inferences is obvious. Even assuming that

petitioner's aircraft was the plane observed

near the truck, it could have been summoned

there on a pretext, and when the occupants were

requested to transport the marijuana, they re-

fused to comply.

In the instant case, the Court is urged

to review the sufficiency of the evidence for a

conviction of a possession offense. Petitioners

submit that it is of crucial importance for

this Court to re-establish the standards for

proof of possession.

CONCLUSION

For the foregoing reasons, a Writ of

Certiorari should issue to review the judgment

and opinion of the Ninth Circuit.

Respectfully submitted

—_

RT J.

4th Floor reams Bldg.

La Placita Village

129 West Broadway

Tucson, Arizona 85701

(602) 622-6708

Attorney for Petitioners

31

CERTIFICATE OF SERVICE

STATE OF ARIZONA)

) ss.

County of Pima )

I, ROBERT J. HOOKER, hereby certify that

pursuant to Rule 33(3), Rules of Procedure for

the United States Supreme Court, three (3) copies

of the foregoing Petition for Writ of Certiorari

to the United States Court of Appeals for the

Ninth Circuit were mailed to the Office of the

Solicitor General, Room 5614, Department of

Justice, Washincton, on this the 18th

day of July, 1978. rll Z

ROBERT J. HOOKELR

SUBSCRIBED AND SWORN to before me, this

18th day of July, 1978, by ROBERT J. HOOKIR.

NOTARY PUBLIC

My commission expires:

Chenu PF MOS Wi

UNITED STATES of America,

Appellee,

Vv.

Theodore Thomas CURTIS, Appellant.

UNITED STATFS of America,

Appellee,

Vv.

Dale Peter CORDOVA, Appellant.

UNITED STATES of America,

APPENDIX

Appellee,

Vv.

Kevin Andrew CURTIS, Appellant.

UNITED STATES of America,

Appellee,

Vv.

John Phillip Dulin, Appellant.

Nos. 77-2070/71, 77-2107 and

77-2235

United States Court of Appeals,

Ninth Circuit.

Oct. 1977.

Defendants were convicted in the

United States District Court for the Dis-

trict of Arizona, Russell E. Smith, Chief

Judge, and C. A. Muecke, J., of possess-

ing a quantity of marijuana with intent

to distribute. Defendants appealed.

The Court of Appeals, Ely, Circuit

Judge, held that where officers had been

given reliable information, based on ar-

ticulable facts, that an airplane was be-

ing utlized in pursuit of criminal activi-

ty by a specific, identifiable individual,

who had made arrangements to rent the

plane, it was proper for the owner to

arrange for installation, bu customs offi-

cials, of a transponder, an electric track-

ing device, although, in the ordinary case,

secret surveillance devices in vehicles

should be installed pursuant to court

order under such reasonable time limita-

tions and other restrictions as the court

should, in the circumstances, reasonably

impose.

Affirmed.

1. Criminal Law -- 520(2)

Simple representation to defendant,

who was cooperative confessor, that fact

of his cooperation would be made known

to prosecuting authorities was insuffi-

cient to render his confession involun-

tary.

2. Aviation -- 245

Owner of airplane had right, before

time for commencement of period of

rental of the airplane to defendants, to

install, through owner's agent, any in-

strument that would not be physically

dangerous to occupants of the plane.

3. Customs Duties -- 126

Where officers had been given relia-

ble information, based on articulable

facts, that airplane was being utilized in

?

A-2

UNITED STATES v. CURTIS

pursuit of criminal activity by specific,

identifiable individual, who had made ar-

rangements to rent the plane, it was

proper for owner to arrange for installa-

tion, by customs officials, of transponder,

an electric trackina device, although, in

ordinary case, secret surveillance devices

in vehicles should be installed pursuant

to court order under such reasonable

time limiataions and other restrictions as

court should, in the circumstances, rea-

sonably impose. U.S.C.A. Const. Amend. 4.

4. Searches and Seizures -- 3.3(7)

There was adequate probable cause

for search of camper truck which ap- 2309

proached parked airplane which had

been under proper surveillance and re-

mained by airplane for period of five or

ten minutes, and for seizure of contra-

band being transported by the driver.

Comprehensive Drug Abuse Prevention

and Control Act of 1970, § 40l(a) (1), 21

U.S.C.A. § 84l(a) (1)? U.S.C.A. Const.

Amend. 4.

Appeal from the United States Dis~-

trict Court for the District of Arizona.

Before ELY and CARTER, Circuit

Judges, and ENRIGHT, District Judge.*

ELY, Circuit Judge:

The four appellants were charged and

convicted of having possessed a quantity

of marijuana with the intent to distri-

bute the same, a violation of 21 U.S.C.

§ 841(a) (1). Other charges in the origi-

nal indictment, conspiracy to.import

*Honorable William B. Enright, United States

District Judge, Southern District of California,

sitting by designation.

?

UNITED STATES v. CURTIS

marijuana and unlawful importation of

marijuana, had been dismissed, pursuant

to stipulation, prior to the nonjury trial.

The appellants present four principal

contentions:

(1) That the installation of a so-called

transponder in a Piper Navajo aircraft,

and the introduction of evidnece derived

from the use of the transponder, consti-

tuted an infringement of the appellants’

Fourth Amendment rights.

(2)That arresting officers did not

have probable cause to stop and search a

vehicle being driven by the appellant

Kevin Curtis.

(3) That a confession made by the ap-

pellant Dulin was involuntary.

(4) That the prosecution's evidence

was insufficient to support the convic-

tions of the appellants Thomas Curtis,

Cordova, and Dulin.

We pass an extended discussion in re-

spect to the claim of inadequate evi-

dence. If Dulin's confession was volun-

tary, there obviously was sufficient evi-

dence to convict him. And if the evi-

dence derived from the transponder and

the marijuana revealed by the search

were properly received, the evidence,

considered as a whole and viewed in the

light most favorable to the Government,

was adequate to support the confictions

of Cordova and Theodore Curtis.

[l] As to appellants' argument in

respect to Dulin's confession, the argu-

ment has no merit. The trial judge

made the determination that Dulin's con-

fession was voluntary, and that finding

must be upheld unless it can be said that

the finding is clearly erroneous. United

States v. Cluchette, 465 F.2d 749, 754

(9th Cir. 1972). The investigating offi-

cers twice gave Dulin the required warning

UNITED STATES v. CURTIS

before Dulin made his admissions.

Dulin argues that he was in fact prom-

ised, or thought he was promised, lenien-

cy in return for the admission. The rec-

ord belies this contention. Dulin was

not offered leniency. He was told only

that it would be made known to respon-

sible authorities that he had cooperated.

Furthermore, Dulin admitted that he re-

alized at the time he made his admis-

sions that no promise was being made to

him. A simple representation tO a coop-

earating confessor that the fact of his

cooperation will be made known to pros-

ecuting authorities is insufficient to ren-

der a confession involuntary. United

States v. Glasgow, 451 F.2d 557, 558 (3th

Cir. 1971). The court's finding that

Dulin's confession was voluntary is fully

supported.

2310

While it is probably unnecessary, we

briefly review the circumstances sur-

rounding the installation of the trans-

ponder. The appellant Theodore Curtis

(hereinafter Theodore) was an experi-

enced aviator. ORCO Aviation, whose

general manager at Riverside, California

was one Joe Pagan, owned a Piper Na-

vajo airplane. Theodore had rented the

plane from October 4th to October 15th,

1976. When the aircraft was returned

on the 15th of October, Pagan suspected

that the plane had been used to trans-

port marijuana. His suspicion was based

on the following: (1) There were appar-

ent discrepancies between the supposed

itinerary of the aircraft and the receipts

for the fuel that had been consumed; (2)

some of the seats in the plane had been

removed and improperly replaced; (3)

one of the cabinet doors of the aircraft

had been damaged; (4) there was vege-

table debris in the plane that Pagan

thought was marijuana; (5) the air-

craft's propellers bore evidence that the

%

A-5

UNITED STATES v. CURTIS

plane had been landed on at least an

unimproved airstrip. On October 26,

1976 Theodore arranced with Pagan to

rent the aircraft again. The period of

rental was to be ten days, beginning on

November 3, 1976, and Theodore deposit-

ed $300 to secure the arrangement. On

November lst, two days before this rent-

al period was to commence, Pagan in-

formed agents of the United States Cus-

toms Service of his suspicions. At the

same time, he arranged for the installa-

tion by Customs officials of the trans-

ponder, an electronic tracking device, in

the aircraft. The installation was made

on the following day, November 2d,

without prior judicial approval, while the

plane still remained in the possession and

control of Pagan, who, as has been not-

ed, was the agent and general manager

of the aircraft's owner. After Theodore

took possession of the plane on November

3d, and during the period from that date

to November 10th, various trackings of

the aircraft's flights were made and

recorded with the use of the transponder.

The plane was tracked to the Litchfield Airport

in Litchfield, Arizona, some ten to fifteen

miles outside the City of Phoenix, where

Theodore and Cordova was observed with the

plane. The ship was also tracked to Phoenix,

and in the early hours of November

loth, the transponder's signals indicated

that the plane was headed in the direction

of the Mexican border. The signals from

the transponder were lost when the plane

was approximately forty miles north of the

border, but at 2:40 a.m. on November 10th,

at 9:20 p.m., Signals reappeared as the

plane proceeded toward the Mexican border.

The signals were lost at the same place as

before, but at 12:45 a.m. on November 11th,

the signals reappeared and disclosed that the

UNITED STATES v. CURTIS

aircraft was heading northerly, away

from Mexico. The signals were tracked

to the vicinity of Wenden, Arizona, and

then lost. A Customs aircraft was dis-

patched for the purpose of intercepting

the Piper Navajo, but the officials were

unable to locate the Piper. The officers

then proceeded in their aircraft to an

abandoned airstrip about thirty miles

from Wenden. The Customs plane was

equipped with an infrared surveillance

device, and at approximately 1 a.m., the

Customs agents, with the use of this de-

vice, detected an airplane with the con-

figuration of a Piper Navajo. The de-

tected plane was parked on an aban-

doned airstrip. After this plane had

been sighted, the Customs officers ob-

served two land vehicles of normal size

approach the parked airplane and remain

for a period of five or ten minutes. The 231]

officers observed that neither the parked

aircraft nor the land vehicles on the

abandoned strip displayed any lights, and

when the plane under observation took

to the air at about 1:10 a.m., it did not

utilize its running lights. The Customs

officers, in their plane, briefly pursued

the departing plane and then returned to

observe the ground vehicles. These two

vehicles remained parked for a moment

and then proceeded toward an interstate

highway. They traveled about one mile

to the on-ramp of the highway before

their headlights were turned on. The

Customs airplane followed both of the

vehicles until the latter separated, at

which time the plane followed what the

operators were then able to identify vis-

ually as a truck with a camper shell.

he airborne agents contacted ground

facilities and arranged that this truck be

intercepted. Other agents, observed by

officers in the Customs aircraft, inter-

cepted the truck, which was being operated

A-7

UNITED STATES v. CURTIS

by Kevin Curtis (hereinafter Kevin).

Kevin was taken into custody. The

officers searched the truck and found

therein approximately 400 pounds of

marijuana, The contraband was seized,

and, over objection, eventually received

as prosecution evidence,

[2,3) The appellants vigorously com-

plain that their Fourth Amendment

guarantees were infringed by reason of

the installation of the transponder and

the introduction of evidence derived

from its use. Their arguments bear con-

siderable weight, having been adopted by

the Fifth Circuit sitting en banc in

States v. Holmes, 537 F.2d 227 (Sth Cir.

1976), affirming 521 F.2d 859 (5th Cir.

1975), Our Circuit, however, has adopted

an approach contrary to that taken in

eae 2d guises ay OL ); United States

v. Hufford, 539 F.2d 32 (9th Cir. cert.

tented, ee U.S. 1002, 97 &.Ct. 533, 50 L,

Ed. 24 614 (1976). Pretzinger, as does

the case at hand, involved the installation

of a transponder in an airplane suspected

of being used for the smuggling of mari-

juana and the tracking of the plane to its

rendezvous with two trucks. The facts in

Pretzginger cannot logically be distineulised

from those before us now, and the legal con-

clusions reached in Pretzinger, as well as in

Hufford, are controlling precedents that

compel the rejection of the appellants’

Fourth Amendment claims in respect to the

installation and use of the tracking device.+

1. The appellants have argued that Pagan

had no authority to grant to the officers

permission to install the transponder, They

base this argument upon the fact that the

agreement for the rental of the plane had

been made prior to the transponder's inatall-

ation. We reject the argument. The inatalle

ation occurred before the time for the come-

mencement of the rental period, The owner

’

A-8

UNITED STATES v. CURTIS

of the plane had full control and dominion

over it at the time, and it seems logical

to us that the owner, through its agent,

had the right at the time to install within

its airplane any instrument that would not

be physically dangerous to occupants of the

plane.

The three judges here concerned wish to

make it clear that in this age of ever-

advancing sophistication in the develop-

ment of electronic eavesdropping devices,

they are not insensitive to unjustifiable

intrusions on the right of privacy, a

right that is deemed to be most precious

to the American people. Law enforcement

agencies should not have carte blanche

power to conduct indiscriminate surveillance

for unlimited periods of time of varying

numbers of individuals. Our conclusion as

to the propriety of the installation and use 2312

of the transponder in this case is predicated

upon the peculiar facts and circumstances as

a whole, particularly that here the officers,

prior to the installation, had been given

reliable information, based on articulable

facts, that the plane was being utilized in

the pursuit of criminal activity by a

specific, identifable individual. Absent

these considerations, and in the ordinary

case, we are inclined to the view that

secret surveillance devices in vehicles

should be installed pursuant to court order,

as in Hufford, under such reasonable time

limitations as the court should, yn the

circumstances, reasonably impose,

2. The author of this opinion joins his

Brothers in resolving the questions relating

to the transponder, but he does so only because

he cannot logically distinguish Hufford and

Pretzinger and thus believes that he had no

choice save to abide by the decisions in those

cases, If free to do otherwise, he would

follow United States v. Holmes, 521 F.2d 659

‘

A-§

UNITED STATES v. CURTIS

(9th Cir. 1975), aff'd en banc, 537 F.2d

227 (9th Cir. 1976). See also, United

States v. Bobisink, 415 F.Supp. 1334

(p.Mass.1976). Writing in this footnote

for himself only, he expresses his opinion

that the reasoning of Holmes is more logical

and precise than that set forth by our court

in Hufford and Pretzinger.

a

[4] Finally, we hold that there was

adequate probable cause for the search

of the camper truck being operated by

Kevin and the seizure of the contraband

that he was then transporting. See,

United States v. Coplen, 541 F.2d 211,

STS (Oth Cir. 19760), cert. denied, 429 U.S,

1073, 97 S.Ct. 810, SO L.Ed. 2d 791 (1977),

and United States v. Young, 535 r,2d

484, 407-00 (Oth Cir.), cert, denied, 429

y.S, 999, 97 S.Ct. 525, SO LiFd. 2d 609

(1976). Cf. ,» United States v,. Patterson,

492 F.2a 995, 997 (9th Ciz.), Cort. aenied,

419 U.S. 846, 95 S.Ct. 82, 42 Lied. 2d 75

(1974),

The judements of conviction are

AFFIRMED,

\ A=10