Petition — Favreau v. United States

|” Supreme Court, U. Sa.

FILED |

/ NOV 3 iste |

'

}

. al iSti EL BAD? CLERK }

IN THE

Supreme Court of the United States

OctToBeR TEKM, 1978

No. S . 7 As

* @€8-C40

Ropert PETER Favreau, Petitioner,

versus

Unitep States oF America, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOURTH CIRCUIT

W. Forp Duane

Ropertson, WiLLiaMs, DuaNnr, LEwts,

Briacs & Ranson, P. A.

938 East Washington Street

Orlando, Florida 32801

(305) 425-1606

Counsel for Petitioner

PRESS OF BYRON S. ADAMS PRINTING, INC., WASHINGTON, D. C.

:

5 2

Bb

INDEX

Page

Cera TR os ods oe eee l

POUIUI 2 ns oo oa ska ss eee l

eerie: FURERSTER oo os Faken ees 2

CoNSTITUTIONAL Provision INVOLVED ............220- 2

eravewuenr ow wae Came «5. ic. isc ceicunsesees 2

ReEasON FOR GRANTING THE WRIT ..............0000: 10

1. WHETHER CONFESSION AND ADMISSION ORTAINED

From Derenpant Durinc CusropiaL [NTERROGA-

TION, ABSENT MrranpA WaRNINGS, ARE ADMISSIBLE 10

PI Ey re tn ey Ls ye 15

Appenpix A (Opinion of U.S. Court of Appeals) ... la

Appenpix B (U.S. Court of Appeals Order Denying

Petition for Rehearing) .............. 3a

Appenpix C (Pre-trial Order of the District Court

Denying Motions to Suppress Confes-

BOOM DUE ESVOGINUE). 00 c ccc be ceaudcees 4a

\ CASE CITATIONS

Beckwith v. United States, 425 U.S. 341, 48 L.Ed. 2d

Ay De i: See Ce ct ie ees 11

Harrison v. United States, 392 U.S. 219, 20 L.Ed. 2d

OORT, Gee Me re Ce hie ok ca acted 15

Miranda vy. Arizona, 384 U.S. 436, 16 L.Ed. 2d 694,

OS Se, Fee Se wick on sake ee apenas eet

Oregon v. Mathiason, 429 U.S. 492, 50 L.Ed 2d 717,

Se CR .. Tae Ces os a eke eae ine 11,14

Rosario v. Guam, 391 F.2d 896 (9th Cir. Guam 1968). 11

Umited States v. Beckowles, 432 F.2d 8, 19 (9th Cir.

a a ES ED SN heh A Oe CARESS ee DP Sere 14

United States v. Carollo, 507 F.2d 50 (5th Cir. 1975). 11

United States v. Lackey, 413 F.2d 655 (7th Cir. 1969). 11

United States v. Nash, 568 F.2d 1166, 1168 (5th Cir.

SPEED Noni cn Sones eee re Ces eee race dl

Wong Sun v. United States, 371 U.S. 471, 9 L.Ed 2d

ORE, Te PRL. GE Ce oie seeecdh Ubneccuse. 15

IN THE

Supreme Cuut of the United States

OcToBER TERM, 1978

No.

RosBert Peter Favreau, Petitioner,

versus

UNITED StaTes OF AMERICA, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOURTH CIRCUIT

—

Petitioner, Robert Pricr Favreau, prays that a

Writ of Certiorari be issued to review the opinion and

judgment of the United States Court of Appeals for

the Fourth Circuit in the above-styled cause.

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Fourth Circuit has not yet been officially re-

ported. A copy of said opinion is set forth in Ap pendix

A, infra, p. la.

JURISDICTION

The opinion of the U.S. Court of Appeals of the

Fourth Cireuit was filed, and judgment entered, on

August 16, 1978. (See App. A, infra, p. la). A timely

2

petition for rehearing was denied on October 4, 1978.

The order denying said petition is set forth in App. B,

infra, p. 3a. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1254(1). App. C, infra, p. 4a is the

pre-trial Order of the District Court which was incor-

porated by the Fourth Circuit in its opinion.

QUESTION PRESENTED

Whether confession and admission obtained from

Defendant during custodial interrogation, absent Mi-

randa Warnings, are admissible.

CONSTITUTIONAL PROVISION INVOLVED

Constitution of the United States, Amendment V:

‘‘No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a present-

ment or indictment of a grand jury, except in

eases arising in the land or naval forces, or in the

militia, when in actual service in time or war or

public danger; nor shall any person be subject for

the same offense to be twice put in jeopardy of life

or limb; nor shall ve coipelled in any criminal

case to be a witness against himself; nor be de-

prived of life, liberty, or property, without due

process of law; nor shall private property be taken

for publie use, without just compensation.

STATEMENT OF CASE

On March 15, 1977, a true bill of indictment was re-

turned in Columbia, South Carolina, charging the

Defendant, Robert Peter Favreau, et al., with three

separate violations of Federal Drug Laws. Count I

charged conspiracy to smuggle marijuana in violation

of 21 U.S.C. 963; Count II charged the offense of

smuggling of marijuana and aiding and abetting in

violation of 21 U.S.C. 952(a) and 18 U.S.C. 2, respec-

3

tively, and the third Count of the indictment charged

possession of marijuana with intent to distribute in

violation of 21 U.S.C. 841(a)(1). The Defendant filed

various Motions to Suppress seeking to exclude a con-

fession as well as the fruits of a warrantless search of

an airsraft. An extensive evidentiary hearing was held

on April 15, 1977, and in due course an opinion was

issued by the Honorable Robert W. Hemphill, Federal

District Court Judge, denying both of the Defendant’s

Motions to Suppress. (R Vol. I at 48).'

The case was scheduled for trial by jury but after

approval of the Defendant’s waiver of trial by jury,

the matter was tried by the Court without a jury at

Charleston, South Carolina. The evidentiary predicate

presented to the Court in the non-jury trial was based

upon stipulation and live testimony produced before

the Court on April 15, 1977, and May 24, 1977, and

upon this evidence the Court entered its findings of

fact (R Vol I at 66) with the conclusion that the De-

fendant was found guilty of all three counts of the

indictment on July 2, 1977.

The Petitioner instituted an appeal to the Fourth

Circuit Court of Appeals by Notice of Appeal filed

July 25, 1977. The Fourth Circuit summarily affirmed

the District Court’s pre-trial Order denying Petition-

er’s Motions to Suppress. After a timely Motion for

Rehearing was denied, Petitioner seeks relief in this

Court asking for issuance of a Writ of Certiorari.

The facts relevant to the questions presented are as

follows:

On December 28, 1976, the United States Drug En-

forcement Administration (hereinafter referred to as

* Citations to the Record on Appeal are denoted ‘‘R Vol. ——

at ——.’’

+

D.E.A.) received information that a DC-4 aircraft,

registration number unknown, had arrived at Daytona

Beach Regional Airport, Daytona Beach, Florida, and

that the plane was going to make a trip to Colombia,

South America (R Vol. II at 3) but when the plane

was to return and what its cargo was to be, as well as

its destination, were unknown. The D.E.A. in Miami,

Florida acting in consert with the local Daytona Beach,

Florida, task force agents, being members of local law

enforcement agencies’ narcotics squads which com-

prised the Volusia County Nareoties Task Force (here-

inafter referred to as VCNTF), took surveillance

photos of individuals working in and around the DC-4

aircraft. One of the individuals was identified as Rob-

ert Peter Favreau. Although Agent Grayson of the

VCONTF testified that nothing was seen that was any-

thing but innocuous conduct coupled with the fact that

the Defendant Favreau, had no arrest record at all (R

Vol III at 17); nevertheless, apparently fearing that

the DC-4 aireraft was about to engage in smuggling

activities, steps were initiated by the Volusia County

Narecoties Task Force and agents of the D.E.A., to at-

tempt to surveil the aircraft should it leave the Day-

tona Beach Regional Airport.

On December 29, 1976, the DC-4 aircraft left Day-

tona Beach, Florida at 7:00 P.M., in an unknown direc-

tion for an unknown destination (R Vol. II at 11, 12).

When allegedly iast observed somewhere in the vicinity

of the Island of Andros the DC-4 aircraft was headed

in a direction, which in approximately one hour would

have placed the aircraft over Colombia, South Amer-

ica. No other surveillance of any kind was affected

regarding the DC-4 aircraft until it was ultimately

located approximately two and one half days later at

Walterboro, South Carolina.

Therefore, before the aircraft was located at Walter-

boro, South Carolina, at approximately 10:00 or 11:00

A.M. on January 1, 1977, the sum total of faets that

could have been relied upon for probable cause to

search the DC-4 aircraft were as follows: First, some

vague source unverified (R Vol IT at 85) whose reli-

ability was unknown (R Vol. II at 28) had speculated

that the DC-4 plane might be going to make a trip to

Colombia, South America, but for what purpose was

unknown (R Vol. II at 3) (Emphasis added) ; second,

visual surveillance at the Daytona Beach Regional Air-

port revealed that metal cargo rollers had been loaded

onto the aireraft, which was designed as a cargo plane;

third, due to the fact that no effort was made to conceal

on ground activities and repairs to the DC-4 aircraft

no information was developed to indicate anything but

innocuous activity; fourth, the plane had been alleg-

edly surveilled in some fashion to within approxi-

mately one hour of Colombia, South America. All other

information that would have been possessed by law en-

forcement officials prior to entry of the aircraft was

based upon and obtained from the Defendant as a re-

sult of a custodial interrogation by Deputy Zeek

Walker of the Volusia County Sheriff’s Department

without the Defendant being advised of his rights

against self-incrimination. (R Vol. IT at 32, 62, 63).

Although there had been statewide ‘‘ BOLO” for the

DC-4 aircraft in the State of Florida; nevertheless, the

plane could not be located. One of the law enforcement

officers that participated in flying reconnaissance with

an agent of the D.E.A. was Volusia County Sheriff's

Deputy Zeek Walker, pilot and deputy for the Volusia

County Sheriff’s Department. Deputy Zeek Walker

had been informed of what local and state narcotic task

6

force agents suspected regarding the DC-4 aireraft

which allegedly contained Deputy Walker’s close per-

sonal friend, the Defendant, Robert Peter Favreau.

(R Vol. Il at 7, 47). Deputy Walker was also told that

a Mr. Wilman of TransFlorida Airlines had seen the

Defendant, aboard the DC-4 as the plane left Daytona

Beach, Florida, and finally, that the plane had been

surveilled in some fashion to within approximately one

hour of Colombia, South America. After acquiring the

aforementioned facts and knowledge regarding the in-

vestigation of the Defendant, Deputy Walker was

asked by Lt. Clain of the Volusia County Narcoties

Task Force to try to locate the Defendant, and to in-

form Lt. Clain as soon as he had loeated the Defendant.

Consequently, Deputy Walker made repeated calls to

the Defendant’s home on December 30th and 31st. (R

Vol. IT at 64) While returning home from a New

Year’s Eve party, Deputy Walker drove by the De-

fendant’s residence in DeLand, Florida, at approxi-

mately 4:00 A.M., on January 1, 1977, and noticed that

tle Defendant’s car had returned, whereupon he pro-

ceeded to a telephone booth and called the Defendant

telling him that he needed to speak with him in person,

immediately. (R Vol. II at 49).

Arriving at the Defendant’s home at approximately

4:00 to 4:30 A.M. on January 1, 1977, Deputy Walker

set about to interrogate the Defendant, in his car as to

where he had been and what he had been doing. Ini-

tially the Defendant denied that he had been involved

in any impropriety; whereupon Deputy Walker stated

in a vituperative manner that he knew what was going

on and then revealed to the Defendant the state of his

knowledge and that the Defendant had better tell him

the whole truth in order for him to be able to help the

Defendant. (R Vol. If at 50) Whereupon the Defend-

nn ee ee

7

ant, made a complete statement of his activities and

involvement to Deputy Zeek Walker.

Although Deputy Walker felt that he had probable

cause to arrest the Defendant, (R Vol. II at 55), he

never at any time advised the Defendant of his consti-

tutional rights against self-incrimination, (R Vol. IT

at 58, 61) Deputy Walker interrogated the Defendant

for approximately two hours during which time the

Defendant was not free to go and was deprived of his

freedom of movement in a significant manner because

it was Deputy Walker’s intention to take the Defend-

ant, to the Volusia County Narcotics Task Force

trailer (station house) whether the Defendant wanted

to go or not. (R Vol. IT at 53; R Vol. VIII at 64).

At the Nareoties Task Force trailer (station house)

the scenario developed that the Defendant was taken

to one end of the trailer and Deputy Walker to the

opposite end. While Deputy Walker was being de-

briefed by local task force agents, he related almost all

of the information obtained from the Defendant before

any attempted interrogation of the Defendant by other

task force agents (R Vol II, at 22, 63). The Defendant

was advised of his rights against self-incrimination by

Agent Hockenberry of the Narcotic Task Force and

the Defendant made only one statement to the effect

that he had been on the DC-4 aircraft when it left Day-

tona Beach and that the aircraft flew south to a grass

strip south of Miami where it landed and he exited the

aircraft and stayed there for one day before returning

to Orlando and driving to his home in Deland. After

making this statement to Agent Hockenberry the De-

fendant stopped talking. Sometime later the Defend-

ant was advised of his rights for a second time by

D.E.A, Agent Ernie Mertens. The Defendant gave only

8

his name and age and admitted that he was at the

Daytona Beach Airport on the day the aireraft took

off but when asked if he was aboard the aireraft the

Defendant responded that he would like questioning to

cease and acquire an attorney, whereupon questioning

ceased, (R Vol. II at 16,19) The Defendant was then

allowed to phone an attorney and after talking over the

phone privately with a loeal lawyer, the Defendant was

allowed to consult with his lawyer whereupon he was

transported back to his home in Deland, Florida, after

having been deprived of his freedom of movement for

approximately twelve hours, (Emphasis added)

Lt. Clain and Agents Hoekenberry and Grayson in

debriefing Deputy Zeek Walker regarding the infor-

mation he had obtained from his close friend, the De-

fendant, ascertained the possibility that there might

be an explosive device or bomb of some sort aboard the

aircraft. (R Vol. II at 56, 57). Consequently, after the

Defendant had indicated that he desired questioning to

cease and that he desired the services of an attorney,

(R Vol. II at 16, 18); nevertheless, when the Defend-

ant returned from seeing his attorney, agent Mertens

asked the Defendant ‘‘Is the bomb still on board?”’,

whereupon the Defendant was allowed to speak with

Deputy Walker for a moment. Deputy Walker told the

Defendant that it would be best to tell the complete

truth; therefore, the Defendant stated that there is no

bomb aboard the aireraft and this information was

telephoned to the D.E.A. at the Walterboro Airport.

(R Vol. II at 74, 75).

Once the local nareoties task force agents in Day-

tona Beach had determined that the Defendant, had

flown on a commercial airline from Charleston, South

Carolina on the evening of December 31, 1976, the in-

9

vestigation was then focused in the Charleston area

resulting in discovery of the aircraft parked on a tie

down strip with chalks in place and the doors of the

aircraft closed and secured (R Vol. II at 33, 34),

All information obtained from the Defendant, was

given to D.E.A. Agent Luther Cooke, agent in charge

of the Charleston office, by VCNTF Agent Hocken-

berry. (R Vol. II at 20, 39, 40). Agent Hockenberry

made two calls to D.E.A. Agent Cooke, the first eall

was around 8:00 A.M. and a message was left and the

second call was after 12:00 noon and it was the second

call that Agent Hockenberry mentioned there might be

a bomb. (R Vol. II at 12, 20, 34). However, Agent

Cooke swore he learned of the plane and bomb possi-

bility around 8:30 A.M. on January 1, 1977, before he

ever talked with Hockenberry. (R Vol. II at 66). Agent

Hockenberry told D.E.A. Agent Cooke that the plane

was empty. (R Vol. IT at 38).

The aircraft was apparently boarded by at least

three individuals, one of whom represented himself as

a Customs Agent, shortly before 11:00 A.M. (R Vol. II

at 104) on January 1, 1977. The initial entry into the

aircraft was accomplished by borrowing a ladder from

the owner of the Walterboro Airport, Harlon A. Pon-

tious. (R Vol. II at 103). In fact, Mr. Pontious stated

that it was not until later in the afternoon that there

was talk of a bomb seare (R Vol. II at 104, 110, 111).

It should be remembered that the conversation between

D.E.A. Agent Mertens and the Defendant, regarding

the presence of a bomb and the Defendant’s statement

to the effect that there was no bomb aboard occurred at

approximately 3:00 P.M. on January 1, 1977.

In any event, after the possibility of an explosive

device was learned no further action at reboarding the

10

&

aircraft was taken until after 1:00 P.M. on January 1,

1977, and the plane was boarded at approximately 3:00

P.M, (R Vol. IT at 86).

The aircraft was entered and searched without any

attempt whatsoever at securing a search warrant (R

Vol. II at 86), notwithstanding the fact that the air-

craft had been on the ground for approximately two

and a half days and that there existed no exigent cir-

cumstances,

Notwithstanding the testimony, the trial Court and

the lower Court rejected the Defendant’s contention

that an objective assesment of the facts and subjective

feelings of the Defendant and Deputy Walker showed

that the Defendant was subject to custodial interroga-

tion, and held that the Defendant was not in custody

consequently his confession was admissible and as such

formed the probable cause basis for the warrantless

entry of the DC-4 aircraft at Walterboro which the

Court also found to be the functional equivalent of the

border. It is these findinys of fact which were the

predicate for Defendant’s judgment and sentence that

he seeks to have reviewed as well as what he feels was

an erroneous application of the law to the facts.

REASON FOR GRANTING THE WRIT

I. Whether Confession and Admission Obtained From Defendant

During Custodial Interrogation, Absent Miranda Warnings, Are

Admissible.

In answering the question presented, the District

Court correctly stated that it must determine whether

or not the interrogation was custodial or non-custodial

as defined in Miranda v. Arizona, 384 U.S. 436, 16 L.Ed

2d 694, 86 S.Ct. 1602 (1966), and subsequent cases.

However, an examination of the record shows that the

Defendant was in custody, notwithstanding the Dis-

11

trict Court’s finding because an objective assessment of

the facts and articulated subjective intents of the De-

fendant and the Deputy Sheriff belie the District

Court’s ruling. United States v. Nash, 568 F.2d 1166,

1168 (5th Cir. 1977). Consequently, the method by

which the lower court decided this case has created a

conflict with prior decisions of this Court defining the

limits of custodial interrogation, as well as the method-

ology to be employed in determining whether or not

questioning by a police officer which results in inerimi-

nating statements, in the absence of Miranda warnings,

is improper.

This Court and other Federal Courts have stated

that the determination between custodial and non-

custodial interrogation, should be by means of an ob-

jective test wherein a Court must searchingly examine

the conversation, circumstances of the conversation,

and in particular whether or not the investigation has

focused unerringly on the Defendant as a possible De-

fendant of a specific crime rendering the allegations

accusatory in nature. Oregon v. Mathiason, 429 U.S.

492, 50 L.Ed. 2d 714, 97 S.Ct. 711 (1977) ; Beckwith v.

United States, 425 U.S. 341, 48 L.Ed, 2d 1,96 S.Ct. 1612

(1976) ; United States v. Carollo, 507 F.2d 50 (5th Cir.

1975) ; United States v. Lackey, 413 F.2d 655 (7th Cir.

1969) ; Rosario v. Guam, 391 F.2d 896 (9th Cir. Guam

(1968).

Utilization of an objective test in the instant case re-

veals two eritical errors committed by the District

Court in its assessment of the facts and the articulated

subjective feelings of both the Defendant and Deputy

Walker during the interrogation. First, the District

Court found that there are no objective indications that

the Defendant was in custody or otherwise deprived

of his freedom of movement. It is painfully obvious

12

that an examination of the conversation disclosed sev-

eral objective indications of a custodial atmosphere

with inherently coercive effects. For example the Dis-

trict Court failed or did not consider the following

facts: 1. Deputy Walker's help was enlisted beeause he

was a close personal friend of the Defendant; 2. Dep-

uty Walker was totally informed of the state of the

investigation and that it had focused unerringly on the

Defendant as a suspect; 3. The conversation between

Deputy Walker and the Defendant occurred at 4:00

A.M. on January 1, 1977, although New Year’s Eve

there was no social talk but an immediate accusation

made against the Defendant (R Vol. Il at 50) ; 4. Dep-

uty Walker then rejected Defendant’s denial, got mad

and cussed the Defendant and then proceeded to detail

his knowledge regarding the Defendant’s activities; 5.

Deputy Walker told the Defendant that he was taking

him to the Volusia County Narcotics Task Force

Trailer (as he had earlier told the Defendant's busi-

ness partner, R Vol. VIII at 51) and he intended to

take the Defendant there whether he liked it or not.

(R Vol. IL at 63; R Vol. VIII at 10) ; 6. Deputy Walker

would not let the Defendant drive his own vehicle but

told him... ‘* You will have to go with me in my ve-

hiele.”’ (R Vol. VIII at 12); 7. Onee the Defendant

was advised of his constitutional rights by Task Force

Agents after the interrogation by Deputy Walker that

the Defendant invoked his rights and he was allowed to

see a lawyer because he saw Deputy Walker as a friend

and not as a police officer and it never occurred to him

that he had constitutional rights of silence. (R Vol. II

at 124, 125) ; finally the objective fact that the Defend-

ant was in custody after he was taken from his home

questioned and detained for a period of approximately

twelve hours.

13

The second error committed by the District Court is

easier to see and appreciate than the first. Having de-

termined that there were no objective indications that

the Defendant was in custody the District Court then

purported to make an objective examination of the sub-

jective feelings of both the Defendant and Deputy

Walker. A fair reading of the District Court’s opinion

(See App. C, infra, p. 4a), shows that the Court’s de-

termination turned almost exclusively upon the sub-

jective and hypothetically reconstructed intent of the

Defendant without any consideration of the articulated

subjective intent of Deputy Walker, who had taken the

Defendant in custody and whose testimony unequivo-

cally showed that he intended to keep the Defendant

in custody. In faet, Deputy Walker testified that he

would have taken the Defendant to the Task Force

Trailer no matter what he told him. (R Vol. VIII at

64). The District Court’s determination that the De-

fendant was not in eustody was made almost solely

upon the Defendant’s statement that at the time imme-

diately prior to his incriminating admissions to Dep-

uty Walker that he did feel that he could have told

Deputy Walker to get lost and go home, although he

never tried to exit the car. The fallacy of this determi-

nation is that to reach the conclusion that the interro-

gation was non-custodial the District Court had to en-

gage in conjecture regarding the subjective intentions

of Deputy Walker and it is these holdings that are

belied by the facts. The magnitude of the District

Court’s error which was amplified beyond the bounds

of reason by the lower court’s summary affirmance and

incorporation of the District Court’s Order is seen in

14

the following two findings by the Court attributed to

Deputy Walker.

‘Deputy Walker, on the other hand, did not feel

that he was obliged to or justified in taking the

Defendant into eustody until after the confession

had been made, It is clear in this case that although

Deputy Walker suspected the Defendant, he

wold not have taken the Defendant into custody

absent the challenged confession.’’ (App. C, infra,

p. 10a, Order of District Court)

This finding by the Distriet Court is at loggerheads

with the articulated sworn testimony of intention given

by Deputy Walker, and it was necessary because to

reach the conclusion that it did require imputing this

intent to Deputy Walker because the facts belie this

determination,

The District Court’s ruling was grounded upon this

Court’s decision of Oregon v. Mathiason, 429 U.S. 492,

50 L.Ed. 2d 714, 97 S.Ct. 711 (1977). However, the ap-

plication of Mathiason to the facts resulted in conflict

which must be eured by this Court. In addition to ob-

jective facts and articulated intent showing that the

Defendant was in custody, Petitioner unlike Mathiason

did not voluntarily come to the station house, nor was

he told in express terms that he was not under arrest,

nor was he, unlike Mathiason free to in fact leave be-

cause he was deprived of his freedom in a significant

manner.

Resolution of the legal question of whether Defend-

ant was in custody turns on whether the beliefs were

reasonable. (United States v. Beckowles, 432 F.2d 8, 17

(9th Cir. 1970).

This Court, as it did in Mathiason, should reverse

and find as a matter of law that the Defendant was in

ee ee

15

custody, notwithstanding the District Court’s findings

because an objective assessment of the facts and articu-

lated subjective intents belie the lower court's ruling.

The confession and admissions of the Defendant ob-

tained during custodial interrogation absent Miranda

warnings are inadmissible.

CONCLUSION

Therefore, due to the facet that a substantial amount

if not almost all of the information obtained by the

Government was tainted due to the primary illegality

in the form of the failure to warn the Defendant of his

constitutional right to remain silent, it is apparent that

this taint renders said information and any testimonial

fruits which formed a substantial portion of the predi-

cate for any alleged probable cause the fruit of the

poisonous tree and thereby inadmissible. Harrison vy.

i/nited States, 392 U.S, 219, 20 L.Ed. 2d 1047, 88 S.Ct.

2008 (1968), Wong Sun v. United States, 371 U.S. 471,

9 L.Ed 2d 441, 83 S.Ct. 407 (1963).

Consequently, it is respectfully submitted that a

Writ of Certiorari should issue to review the judgment

and opinion of the United States Court of Appeals,

Fourth Circuit.

Respectfully submitted,

W. Forp Duane

RoBerRTSON, WILLIAMS, DUANE, Lewis,

Briceas & Ranson, P. A.

538 East Washington Street

Orlando, Florida 32801

(305) 425-1606

Counsel for Petitioner

es

xaoc&xc— '

APPENDIX

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Unpublished

No. 77-2141

Unirep States or America, Appellee,

v.

Ropert Peter Favreau, Appellant.

Received August 18, 1978

Appeal from the United States District Court for the Dis-

trict of South Carolina, at Charleston. Robert M. Hemphill,

District Judge.

Submitted: July 17, 1978. Decided: August 16, 1978

Before Russet, Circuit Judge; Fietp, Senior Circuit Judge,

and Wipener, Circuit Judge.

(W. Ford Duane, Robertson, Williams, Duane & Lewis,

P.A., Thomas Dewey Wise, Stuckey & Wise, on brief for

Appellant. Thomas E. Lydon, Jr., United States Attorney,

Lionel 8. Lofton, Assistant United States Attorney, on

brief for the Appellee.)

Per Curiam:

After a non-jury trial in the United States District Court

for the District of South Carolina, Robert Peter Favreau

2a

was convicted of three offenses’ stemming from his part

in the importation of a plane-load of marijuana from Co-

lombia, South America to an airstrip outside Walterboro,

South Carolina. Favreau contends that we should reverse

because of the use as evidence of incriminating statements

made before he had been apprised of his Miranda? rights

and because the search of the airplane was done without

probable cause and by customs agents beyond their terri-

torial jurisdiction. We consider Favreau’s appeal in light

of a motion by the United States, filed pursuant to F.R.A.P.

27, to summarily affirm without oral argument the appealed-

from convictions.

An examination of the record, the transcripts, and the

briefs filed by the parties convinces us that to properly dis-

pose of this appeal we need do no more than incorporate

into our final judgment the pre-trial order issued by the

district court on the questions presented on appeal. The

district court correctly ruled that Favreau was not “in cus-

tody” when his incriminating statements were made, Oregon

v. Mathiason, 429 U.S. 492, 495 (1977), and that the search

of the plane and the subsequent use at trial of the contents

found therein, considering the location of the plane, the

suspected contents and the fact that, when searched, it had

been abandoned, were reasonable. Almeida-Sanchez v.

United States, 413 U.S. 266 (1973); Carroll v. United States,

267 U.S. 132 (1925).

Accordingly, dispensing with oral argument, we hereby

grant the appellee’s motion to summarily affirm the judg-

ment of the district court. United States v. Dando, et al,

Cr. No. 77-79 (D.S.C., May 12, 1977).

‘Favreau was convicted of conspiracy to smuggle marijuana,

21 U.S.C. § 963; smuggling marijuana and aiding and abetting,

21 U.S.C. § 952(a) and 18 U.S.C. § 2; and possession of marijuana

with intent to distribute, 21 U.S.C, § 841(a) (1).

2 Miranda v. Arizona, 384 U.S. 436 (1966).

3a

APPENDIX B

(Caption Deleted in Printing]

ORDER

Received October 8, 1978

Upon consideration of the appellant's petition for re-

hearing, by counsel,

Ir Is Orperep that the petition for rehearing is Dentep.

Entered at the direction of Judge Russell for a panel

consisting of Judge Russell, Judge Ficld, and Judge

Widener.

Filed October 4, 1978

For the Court,

/s/ WiuuraM K, Suarte, IT

Clerk

da

APPENDIX C

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE DISTRICT OF SOUTH CAROLINA

CHARLESTON DIVISION

Criminal Number 77-79

Unitrep States OF AMERICA

v.

sORGE W uw Danvo, Ropert PeteR Favreau,

GEORGE ILLIAM ;

Loxniz James Brown and Steve NEWTON Davis

ORDER

Original Filed May 12, 1977

Received May 138, 1977

On December 28, 1976, Vietor D. Hockenberry, a Day-

tona Beach, Florida, city detective assigned to the Nar-

eoties Task Force received information from the Drug En-

forcement Administration, Miami, Florida, that a DC-4 air-

eraft located at Daytona Beach Regional Airport was going

to make a trip to Columbia, South America. As a result of

the information furnished by DEA, Miami, the aircraft

was located, and on the morning of December 29, 1976,

photographs were taken of both the aireratt and the peo-

ple working in and around the aircraft. Through contact

with Wilman’s Aviation at the Daytona Beach Regional

Airport, it was learned that an individual by the name of

George Dando had paid certain bills for the aircraft, for

fuel, ete. Through discussions with Mr. Wilman of Wil-

man’s Aviation, it was also learned that ancther individual

by the name of Robert Favreau had also been in the area

and had contact with the DC-4 aircraft. Detective Hocken-

berry also made contact with Deputy Sheriff Zeke Walker

because Walker was known to be a personal friend of

Favreau’s. Walker was questioned concerning Favreau’s

5a

ability to fly a plane such as the DC-4 and advised that

Favreau was quite capable of flying this type of aircraft.

Information was also developed that Dando had been a

suspect in another drug case,

Approximately 7:00 P.M. on the evening of December

29, 1976, Hockenberry was advised that the DC-4 aircraft

had departed Daytona Beach with Dando, Favreau and

two other people on broad. Hockenberry was also advised

that no flight plan had been filed by the DC-4 aircraft. On

the morning of December 30, 1976, Hockenberry again con-

tacted Deputy Sheriff Walker and advised him that the

DC-4 aircraft had departed Daytona Beach, and its last

known location was somewhere over the Andros Islands.

Subsequently, Walker and two DEA agents from Miami

flew different areas around the surrounding counties from

Daytona Beach looking at different airstrips where the air-

craft might land with the load of marihuana. This search

revealed nothing. Subsequently, Deputy Walker was briefed

as to the information that was available concerning

Favreau.

On the morning of January 1, 1977, at approximately

4:00 A.M., Deputy Sheriff Walker contacted his friend

Favreau (prior to this time Walker had attempted to con-

tact Favreau without success) by phone and told him “Bob,

I think we ought to talk.” Walker then went to Favreau’s

house and Favreau got into Walker’s car. Walker asked

Favreau where he had been and Favreau told him Miami.

Walker then told Favreau not to lie because he, Walker,

knew he had been to Colombia, South America. Favreau

then related to Walker that he and three other individuals,

George Dando, Lonnie Brown and Billie Potts, had been to

Colombia, South America, picked up “cargo,” marihuana,

and reentered the United States at Charleston, South Caro-

lina, and had set the aircraft down at Walterboro, South

Carolina. Favreau told Walker that the aircraft was off-

loaded at Walterboro, and the “cargo,” marihuana, placed

into two Ryder vans. Favreau advised that the original

6a

plan was to airdrop the “cargo,” marihuana, over North

Carolina and fly the aircraft on to Michigan. At no time

during this initial encounter did Officer Walker relate the

“Miranda warnings” to Favreau. Subsequently, Walker

took Favreau to see Favreau’s partner where they sat

around and drank coffee and “shot the bull.” Walker called

Detective Hockenberry and advised him that Favreau was

with him. Subsequently, Favreau was taken by Walker to

the Narcotics Strike Force Trailer where he was advised

of his rights and interviewed by Detective Hockenberry.

After being advised of his rights, Favreau refused to make

any statements. During the course of his conversation with

Deputy Walker, Favreau had advised that George Dando

had a bomb, an incendiary bomb, and that he “would go to

any lengths to do anything.”’

Hockenberry relayed all the information that he had de-

veloped from Walker to Luther Cooke, DEA, Charleston,

South Carolina. As a result of the information from Day-

tona Beach, Cooke ealled the Walterboro Airport to de-

termine whether or not the DC-4 aircraft was in fact there.

Subsequently, Cooke contacted his agents and agents of

the ATF because of the information that there might be a

bomb on board the aircraft. The aircraft was subsequently

boarded (photos introduced at hearing show ropes being

tied to doors for fear that bomb might be rigged to doors)

by ATF under the supervision of DEA generally and one

DEA agent specifically who had Customs’ search authority.

No bomb was found but a large quantity of marihuana

residue wasvaboard the aircraft. Subsequent investigation

by DEA, Charleston, revealed that the two Ryder trucks

used to off-load the aircraft had been rented from a service

station in Charleston, South Carolina. The rental agree-

ments reflected that one truck had been rented in the name

of Robert Peter Favreau, and the other in the name of

George William Dando. The rental agreements further re-

flected that the trucks had been rented at 10:00 P.M. on

December 30, 1976. On the afternoon of January 1, 1977,

7a

one of the trucks had been returned and marihuana residue

was found in the cargo area. An APB (all points bulletin)

had been placed for the other truck. On the morning of

January 3, 1977, the second Ryder truck was located in the

possession of Steve Newton Davis by the Charleston

County Police Department, and marihuana residue was also

found in the cargo area of this truck.

The defendants move to suppress all statements made

by the defendant Favreau to Deputy Walker on the morn-

ing of January 1, 1977 on the grounds that Walker failed

to advise defendant Favreau of his rights under Miranda

v. Arizona, 384 U.S. 436 (1966). In Miranda, the Court held

that, absent knowledge and voluntary waiver of a defend-

ant’s Fifth Amendment rights, that the prosecution would

be barred from using any statements stemming from ques-

tioning initiated by officers after a person has been taken

into custody or otherwise deprived of his freedom of action

in any significant way. As a practical matter, the defend-

ant must be advised of his “Miranda rights” and voluntarily

waive them before any information gathered in a custodial

interrogation may be used against the defendant. In the

present case, the prosecution does not question the fact that

defendant Favreau was not apprised of his constitutional

rights until after he had related his role in the alleged crim-

inal activity to Detective Walker. The question before this

court is whether or not the facts of this case are such as to

indicate that the encounter between Favreau and Walker

constituted a “custodial interrogation” within the meaning

of that term as used in Miranda. :

In two recent cases the Supreme Court of the United

States has outlined the meaning of the word “custodial

interrogation” as used in Miranda. In Oregon v. Mathiason,

97 S.Ct. 711 (1977), the defendant voluntarily came to a

police station and, while alone in a room with a police offi-

cer, confessed his commission of a burglary. The defendant

in that case argued that the confession, which took place

Sa

prior to the defendant’s arrest or any indication on the

part of the police that the defendant would be arrested,

should be excluded because the police station was a “coer-

cive environment.” The Snpreme Court, addressing the

question, stated that:

In the present case,..., there is no indication that

the questioning took place in a context where respond-

ent’s freedom to depart was restricted in any way. He

eame voluntarily to the police station, where he was

immediately informed that he was not under arrest.

At the close of a one-half hour interview respondent

did in fact leave the police station without hindrance.

It is clear from these facts that Mathiason was not in

custody “or otherwise deprived of his freedom of ac-

tion in any significant way.”

Such a noncustodial situation is not converted to

one in which Miranda applies simply because a review-

ing court concludes that, even in the absence of any

formal arrest or restraint on freedom of movement,

the questioning took place in a “coercive environment.”

Any interview of one suspected of a crime by a police

officer will have coercive aspects to it, simply by virtue

of the fact that the police officer is part of a law en-

forcement system to be charged with a crime. But po-

lice officers are not required to administer Miranda

warnings to everyone whom they question. Nor is the

requirement of warnings to be imposed simply because

the questioning takes place in the station house, or be-

cause the questioned person is one whom the police

suspected. Miranda warnings are required only where

there has been such a restriction on a person’s free-

dom as to render him “in custody.” It was that sort of

coercive environment to which Miranda by its terms

was made applicable, and to which it is limited.

It is clear that the Supreme Court would require some type

of restriction on the suspect’s freedom in order to render

said suspect “in custody” for Miranda purposes.

—

9a

In Beckwith v. United States, 96 S.Ct. 1612 (1976) the

defendant urged that, although he was not actually “in

custody”, that the investigation had “focused” on him and

that his protection, under Miranda, should apply to any

statements made prior to being advised of his rights, The

Court felt that “focused” as defined in Miranda meant

nothing more or less than questioning initiated by law en-

forcement personnel subsequent to the suspect being taken

into custody or otherwise deprived of his freedom of action

In any significant way.

In the present case there are no objective indications that

the defendant Favreau was in custody within the meaning

of Miranda. He was not formally placed under arrest nor

was he physically restrained or told by Deputy Walker

that he could not leave. Absent objective indications of a

deprivation of the defendant's freedom of action, the court

should look to the subject of feelings of the defendant in

the officer at the time of their encounter. At the time de-

fendant Favreau made the allegedly incriminating state-

ment to Deputy Walker, he was aware that he was not

under arrest and felt, from his own testimony, that he was

free to leave at any time. He testifi

ed, :

transcript: at page 124 of the

Q. (Mr. Lofton)—“I understand what you are saying,

but I want you to listen to my question and answer my

question specifically. At the time Zeke Walker told you,

‘Bob, you were not in Florida, you were in Columbia

[sic], South America, then you were in Walterboro

South Carolina,’ did you feel that you could not open

that door, get out of that car and go back in your

house?”

A. (Mr. Favreau)—‘“At that time I had the feeling

8 yes, I could have told Zeke to get lost and go on

ome.”’

10a

At page 1238, the defendant testified, in response to the

questioning by the Assistant United States Attorney, that

he felt as if he was free to leave the car at any time. Deputy

Walker, on the other hand, did not feel that he was obliged

to or justified in taking the defendant into custody until

after the confession had been made. It is clear in this case

that although Deputy Walker suspected the defendant, he

would not have taken the defendant into custody absent the

challenged confession. As the Court held in Mathiason,

supra, the requirements of Miranda are not invoked merely

because the questioned person is suspected of crime by the

police. The holding in Miranda was an attempt by the Su-

preme Court to counteract the inherently coercive effects

of custodial interrogation. In this ease, neither the suspect

or the officer felt that, at the time, there was any signifi-

cant deprivation of the defendant’s freedom of action. The

officer, after the confession, felt that it was his duty to take

the defendant into custody. Any other reaction on his part

would defy logic. Therefore, this court finds that the in-

terrogation of defendant Favreau by Officer Walker was

not custodial within the meaning of that term as used in

the Miranda decision. For this reason, it is admissible into

evidence against the defendant.

The defendant also objects to the use, by the government,

of the return of the search of the DC-4 aircraft at Walter-

boro Airport. At the time the search was carried out, the

the plane was empty, out of fuel and secured to the airfield

at Walterboro. As previously stated, the aircraft was

boarded by an agent of the Drug Enforcement Agency who

was specifically inve-ted with customs’ search authority with

which to prevent merchandise from being introduced into

the United States in a matter contrary to law. Customs

Officers have been given express statutory authority to

make searches without probable cause and without war-

rants. This authority lies pursuant to several sections of

the United States Code and regulations which have been

administratively developed pursuant to those sections. 19

U.S.C. § 482 provides that:

lla

Any of the officers or persons authorized to board or

search vessels may stop, search, and examine, * * * any

vehicle, beast, or person, on which or whom he or they

shall suspect there is merchandise which is sul ject to

duty, or shall have been introduced into the United

States in any manner contrary to law, * * *.

19 U.S.C. § 1581(a) states:

*?ee@ .

may at any time go on board of any vessel or

vehicle at any place in the United States or within the

customs waters * * * and examine, inspect, and search

the vessel or vehicle and every part thereof and any

person, * * * or cargo on board * * °,

19 C.F.R. § 162.5 provides that:

A Customs officer may stop any vehicle and board

any aircraft arriving in the United States from a for-

eign country for the purpose of examining the manifest

and other documents and papers and examining, in-

specting, and searching the vehicle or aircraft. (19

U.S.C, 1581, 49 U.S..C. 1509) (emphasis added).

The defendant argues that this regulation cannot be

construed to allow a warrantless search of an aircraft

= at a tie-down strip on an uncontrolled municipal air-

port.

In discussing the scope of the statutes authorizing bor-

der searches by customs officials, as limited by the Fourth

Amendment, the Supreme Court in Carroll v. United States

267 U.S. 132 (1925) said: )

Travelers may be stopped in crossing an international

boundary because of national self-protection reason-

ably requiring one entering the country to identify him-

self as entitled to come in, and his belongings as effects

which may be lawfully brought in. But those lawfully

within the country, entitled to use the public highways,

Ilva

have a right to free passage without interruption or

search unless there is known to a competent official,

authorized to search, probable cause for believing that

their vehicles are carrying contraband or illegal mer-

chandise. 267 U.S. at 154 (emphasis added).

The Court later recognized that permissible customs

searches may not only be carried out at the border itself

hut at its “functional equivalence” as well. Almeida-Sanchez

». United States, 413 U.S 266 (1973). The Court gave two

examples of what it considered the “functional equivalence”

of a border search. They say:

* * * For example, searches at an established station

near the border, at a point marking the confluence of

two or more roads that extend from the border, might

be functional equivalence of border searches. For an-

other example, a search of the passengers and cargo

of an airplane arriving at a St. Louis airport after a

nonstop flight from Mexico City would clearly be the

functional equivalent of a border search, 266 U.S. at 273

Since all the circuits have upheld searehes as being at the

“functional equivalent” of the border where, although the

vessel or aircraft landed within the geographical boundaries

of the United States, the customs officials had reason to

believe that said vessels or aircrafts had come directly into

the United States from a foreign country. United States v.

Barbera, 514 F.2d 294 (2nd Cir. 1975); United States v.

Prince, 491 F.2d 655 (5th Cir. 1974); United States v.

Chiarito, 507 F.2d 1098 (5th Cir. 1975).

The search of the plane at Walterboro, South Carolina,

must be considered a search at the “functional equivalent”

of the border in light of the circumstances in this case. De-

fendant Favreau related to Deputy Walker the entire cir-

cumstances involving the alleged smuggling operation. The

agent with customs authority who searched the aircraft

had reliable information through Deputy Walker that the

l3a

airplane had flown directly to Colombia, South America,

loaded an illegal cargo and had flown directly back into the

United States and landed at the Walterboro Airport, and at

Walterboro, the crew disembarked and the plane was left

at substantially the same location where it first touched

down in the United States. Any distinction between this

situation and one in which a regularly scheduled airline

lands within the geographic boundaries of the country would

appear to be artificial. The customs officials cannot pos-

sibly search an aircraft until it lands. If an aircraft ille-

gally flies to a foreign country and returns without filing a

flight plan, and makes an unscheduled landing in a remote

rural airport, it is unreasonable to acquire the customs

officials to search the plane before they learn of its entry

into the country. This case should be distinguished factually

from a case involving an automobile which is continuously

in the country from the time it enters. For these reasons,

the search of the aircraft at the Walterboro Airport oc-

curred at the “functional equivalent” of the border for pur-

poses of the customs law. Therefore the search of the air-

eraft without a warrant was valid and the evidence should

be admitted.

For the foregoing reasons, the defendant’s motion to

suppress defendant Favreau’s statements to Deputy Walker

and the results of the search of the DC-4 aircraft at Walter-

boro Airport are denied.

Anp It Is So Orperep,

United States District Judge

/8/ Rosert W. Hempuiti

Robert W. Hemphill

Columbia, South Carolina

May 12, 1977