# Petition — Brandon v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1979
- **Citation:** 444 U.S. 837

## Text

JUN 4 1979
$f renicrdnimenerrorntire |, CLERK

IN THE

SUPREME COURT OF THE UMTED STATES

Term, 1979

-7#= 1806

G. T. BRANDON and
BRANDON BROTHERS USED CARS, INC. - Petitioners

versas

UNITED STATES OF AMERICA - .-_ Respondent

PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

E. W. RIVERS
Suite 801

Citizens Bank Building
Paducah, KY 42001

Attorney for Petitwners

WESTERFIELD-BONTE CO,., G18 W. KENTUCKY =?.6. BOX S281, LOUIBVILLE, KY,

TABLE OF CONTENTS AND AUTHORITIES

PAGE
Petition for Writ of Certiorari..................... 1-16
Tithe 38 USCA Section 1254(1).................-. 2
Title 15 USCA Section 1984, 1990(c)............. 2
Fourth Amendment of the United States Constitu-
En, eid) aa uk cle eine awedecatvecs 4
Fifth Amendment of the United States Constitu-
a ee es cas abi wences 4-5
EI SS )
Caldwell v. Lewis, 417 U. S. 583, 590............. 10

Katz v. U. S., 389 U. S. 347 at 350, 88S. Ct. 507.... 11
Wattenburg v. U. S., 388 F. 2d 853 (1968) (9th)... 11
MOP ck ccc see eses 12

U.S. v. Mandujano, 425 U. S. 564, 48 L. Ed. 2d 212,
96 S. Ct. 1768 stated at 96 S. Ct. page 1778 and

SD 14-15
EE SS 17-20
GGL a. a slob ease sss desiccee 17-18

IN THE

SUPREME COURT OF THE UNITED STATES

Term, 1979
No.
G. T. BRANDON and
BRANDON Brotuers Usep Cars, Inc. - Petitioners
v.
UNITED STATES OF AMERICA santana Respondent

PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

The Petitioners, G. T. Brandon and Brandon
Brothers Used Cars, Inc., request that the Writ of
Certiorari be issued to review the opinion and judg-
ment of the United States Court of Appeals for the
Sixth Circuit rendered in these proceedings on May 3,
1979.

1(a)

The oninion of the Court of Appeals was rendered
on May 3, 1979 and is unreported.

1(b) (i)

The judgment of the United States Court of Ap-
peals for the Sixth Circuit was entered on May 3, 1979
and it is final by its terms.

1(b) (iii)

The jurisdiction of this court is invoked under the
provisions of Title 28 USCA Section 1254(1).

1(c)

In December, 1976, the Grand Jury was conducting
an investigation under the odometer law, Title 15
USCA Section 1984, 1990(¢). The Grand Jury was
scheduled to meet on December 13, 1976 and subpoenas
were issued for about six wholesale used car establish-
ments in Calloway County, Kentucky. FBI agents
were to serve the subpoenas. The subpoenas called for
hundreds of documents, which were to be presented to
the Grand Jury that day. There was also a letter
addressed to Petitioner, Brandon, and the corporation,
which read that pursuant to an official criminal in-
vestigation of suspected violations of the federal law,
being conducted by the Grand Jury in Western Ken-
tucky, and that they were served with a forthwith
subpoena. Agent Bishop went into the office and served
the Petitioner, Brandon. He was not advised of his
rights. Another agent, Houston, went on the lot where
the office was and checked the identification numbers on
some cars and the odometer readings on the cars. The
odometer readings on three automobiles on the lot re-
sulted in the indictment of the Petitioner for altering
the three odometers. At no time was Petitioner,
Brandon, the President of the corporation, advised of
his rights. Agent Houston never obtained the consent

3

of the Petitioner to obtain the odometer readings. The
question presented is:

(1) Were the FBI agents required to have a
search warrant before searching the cars on
the Petitioner’s property?

The Grand Jury subpoenaed the records of Bran-
don Brothers Used Cars, Inc., and Brandon, as Presi-
dent, was subpoenaed by the Grand Jury to produce the
corporate records. Brandon appeared before the
Grand Jury on December 13, 1976, December 15, 1976
and December 16, 1976. He answered questions as to
the documents presented and took the fifth amendment
at various times throughout the interrogation by the
government. An order to show cause was issued
against Petitioner, Brandon, and a hearing was held
on January 19, 1977. At that time, the court ruled in
an opinion and order (EX-1) wherein the court ordered
that six questions were to be asked by the government
of the Petitioner, Brandon. The order provided that
only the six questions shall be answered by the Peti-
tioner and none others. The order further provided,
that the Petitioner shall not be required to answer any
questions pertaining to individual entries made on any
documents, which are produced to him. <A subpoena,
dated January 14, 1977, requested documentation as to
the list of cars which the government agents had inven-
toried on the Petitioner’s property on December 13,
1976. Before the Grand Jury, the prosecution de-
parted from the six questions directed to be asked by
the court and asked some thirty pages of questions,

4

which did not relate to the six questions ordered asked
and answered by the court. Brandon was questioned
about the very documents relating to the three auto-
mobiles for which he was indicted; about entries on
those documents and about Jackie Brandon, to whom
the Petitioner had sold the automobiles quite some time
before the search on December 13, 1976. The question
is:

(1) Should the evidence, and the fruits thereof,
given by Petitioner, Brandon, before the
Grand Jury, to questions prohibited being
asked by the court, be suppressed and not be
admissible at the trial of his case?

1(d)

The fourth amendment of the United States Con-
stitution provides:

‘The right of the people to be secure in their per-
sons, houses, papers, and effects, unreasonable
searches and seizures shall not be violated, and no
warrant shall issue but upon probable cause, sup-
ported by oath or affirmation, and particularly
describing the place to be searched, and the persons
or things to be seized.’’

The fifth amendment of the United States Con-
stitution provides:

‘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 of war or

5)

public danger; nor shall any person be subject for
the same offense to be twice put in jeopardy of life
or limb; nor shall be compelled in any eriminal
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 public use, without just compensation.”

1(e)

On May 15, 1978, the Grand Jury at Paducah, Ken-
tucky, returned a three count indictment against the
Petitioners. They were charged in count 1 with alter-
ing the odometer on a 1974 Oldsmobile, in order to
change the number of miles indicated thereon approxi-
mately 104,469 miles to 44,774 miles. Count 2 charged
them with altering the odometer of a 1972 Oldsmobile,
with the intent to change the number of miles indicated
thereon from 100,651 to 48,010. The third count
charged the Petitioner with altering a 1975 Oldsmobile
odometer with intent to change the number of miles
thereon from approximately 49,087 to 29,397. The
Petitioners were found guilty under counts 1 and 2, but
were acquitted on count 3.

The Petitioners had been in the wholesale used car
business for some 28 years. Prior to 1976, Petitioner
had bought and sold between 1,000 and 1,200 ears :
year. He was getting up in years and was required to
be on the road a lot, away from home, attending auc-
tions and buying and selling cars. In 1976, he decided
to slow down and stay off the road and spend more
time with his family. He had known Jackie Brandon
for about 45 years and he was a distant cousin. Bran-

6

don testified that he made an arrangement with Jackie
Brandon to the effect that when the Petitioner pur-
chased an automobile, Jackie Brandon would pay him
a hundred dollars over what is called the invoice price
or whatever Brandon paid for the car plus the Peti-
tioner’s expense in bringing the car to Murray and
cleaning up the car. This agreement involves the three
Oldsmobiles that are the s»bject of the three counts in
the indictment.

The Petitioners bought automobiles from various
wholesale dealers, leasing companies, car rental agen-
cies throughout the United States. The three auto-
mobiles in question were purchased by the Petitioner
from Royal Auto in Birmingham, Alabama. Royal
Auto, through its President, Mr. Newby, when it had
ears, would call the Petitioner at Murray, Kentucky
and describe the particular car he had and what he
wanted for it and what repair work would have to be
done. Newby would record that in his office along with
the date of sale, the price, the mileage and so forth.
The Petitioner would send a bank draft to Royal, which
was in an envelope and when Royal got the title papers,
they would forward the title papers along with the bank
draft to Petitioner’s bank at Murray, Kentucky. After
the telephone conversation, Brandon’s independent
contractors, would go from Murray, Kentucky to
Birmingham, Alabama and bring the ears back to
Murray, Kentucky. As soon as the cars were received
on the lot, the Petitioner would inventory the cars, take
the odometer mileage readings and the vehicle identi-
fication numbers and make sure it was the car he had

7

purchased. He would then call Jackie Brandon, to
whom he had already sold the car, who would then or
at a later date, pick up the car and have what me-
chanical repairs were needed performed on the ear.
He would return the car to the Petitioner’s lot and the
Petitioner would do the clean up work on the auto-
mobile, namely the paint, upholstery and anything that
was needed to be done to the car to put it in good condi-
tion, except the mechanical and body work, which Jack
Brandon had performed by himself or other people.
The three Oldsmobiles in the three counts of the indict-
ment were on Petitioner’s property on December 13,
1976, when the agents inventoried the cars and checked
the odometer readings. The Petitioner had picked up
the cars and actually sold them before receiving the
title papers and odometer statements from Royal Auto
in Birmingham, Alabama. None of the title papers
nor did any of the checks or drafts clear the Peti-
tioner’s bank at Murray, Kentucky until after Decem-
ber 13, 1976. They were subsequently picked up and
removed from the Petitioner’s premises by Jackie
Brandon, when the title papers arrived. The evidence
and checks were introduced to show that Jackie Bran-
don had paid for each of the three automobiles.

Under federal law, the seller or transferor of an
automobile in the automobile business is required to
give an odometer statement. The Petitioner’s odometer
statements on all three of the automobiles showed the
correct mileage. They showed the same mileage as was
recorded at Birmingham, by Royal Auto, in addi-
tion to the 330 miles from Birmingham to Murray,

8

Kentucky, the distance traveled by the ears. The
Petitioner gave Jackie Brandon an odometer statement
for each Oldsmobile in the indictment which showed
the correct mileage on the car on the date of its arrival
at the Petitioner’s lot in Murray, Kentucky. Jackie
Brandon signed as the transferee on each odometer
statement. His signature was identified on the odo-
meter statements and on the checks that he had given
the Petitioners for the automobiles by the banker that
Jackie Brandon did business with in Murray, Ken-
tucky. It was established at the trial of the case, that
Jackie Brandon was involved in an automobile acci-
dent with the Oldsmobile, which is the subject of count
3. This occurred on December 6, 1976, prior to the
search by the agents on December 13, 1976. Jackie
Brandon was listed as the owner on the police report
and he filed a claim against the other car’s insurance
company and was paid for the damage to the 1975
Oldsmobile, even though title papers had not been
transfered nor had Jackie Brandon paid for the ear
as of that time. Jackie Brandon returned the wrecked
Oldsmobile to Petitioner’s lot where it was inventoried
by the FBI and had the altered mileage on the odo-
meter. This was the course of dealing followed by
Petitioner with their dealings with Royal Auto, and
other wholesale car dealers and with Jackie Brandon.
Jackie Brandon was subpoenaed by the Petitioners at
the trial, but was unable to be found and did not
appear.

The Petitioner is a wholesale used car dealer and
not a retail used car dealer. It was the government’s

|

9

contention throughout that the Petitioner was a retail
used car dealer. The Petitioner had a wholesale car
license and a retail car license issued for one person,
which was to the Petitioner. The Petitioner buys cars
from dealers, leasing companies, and they are brought
to his place of business, where they are cleaned up,
waxed, polished, upholstered and put in excellent condi-
tion. Some of the cars are sold to wholesale dealers,
who come to his office. Most of them were taken to
auctions. The only time he sells a car retail is to some
friend and he has never sold over four or five cars a
year retail. Petitioner does not have any salesmen
selling cars off of the lot and has but one bookkeeper
and three employees, who are engaged in the clean up
work on the automobiles. The Petitioner’s lot is not
open to the general public and they have never been
allowed to come on his '*t or in his garage. If a mem-
ber of the general public wanted to buy a ear at retail,
the Petitioner would refuse them, since he was not
interested in the retail business, which involved finane-
ing, warranties and other paper work, which was not
involved in the wholesale business.

1(g)

The jurisdiction of the United States District Court
for the Western District of Kentucky at Padueah,
Kentucky, is conferred by Title 18 Section 3231.

1(h)

The Court of Appeals disposed of the Petitioner’s
Fourth Amendment claim summarily. The Court

10

stated that the agent’s testimony was undisputed and
it was to the effect that they entered the used car lot,
looked at the automobiles, and were never asked to
leave or forbidden to look in the windows and that this
was a commercial establishment open to the public.
The facts are that the Petitioner did not know that
FBI agent, Houston was on his premises taking
odometer readings and identification numbers from
the cars. Brandon was inside the office talking to FBI
agent, Bishop, who was delivering the subpoena and
letter and consequently had no opportunity to ask
Houston to leave or quit taking the odometer readings
or VIN numbers. Agent Houston’s testimony was that
he could get the VIN numbers from looking through
the windshields and the odometer readings from look-
ing through the windows and that he does not remember
if he opened the doors of the cars to get the odometer
readings or not, because he thought they were locked,
but he was not positive. Other testimony was to the
effect that you can’t get odometer readings from simply
looking through the window without opening the car
doors. It was brought out on cross-examination that
Houston would have had to open some doors to get the
VIN numbers and the odometer readings. This was
especially true of vans. The court cited the case of
Caldwell v. Lewis, 417 U. S. 583, 590 as authorizing the
search of the automobile. The Caldwell case went up
to the Supreme Court from the Sixth Circuit and this
court held that an exterior search of an automobile on
a public parking lot was not unreasonable under the
fourth and fourteenth amendments. The court held

11

that no expectation of privacy was violated by the ex-
amination of tire on operative wheel or in taking of
exterior paint samples from the vehicle which had been
parked in a publie place. The immediate case does not
involve an exterior search, but a search conducted on
the premises which were not commercial. True it was
a business, but it was a business where the general
public was excluded and was not the ordinary run of
the mill retail used car lot that are so prevalent. The
Petitioner only dealt with wholesalers and not the per-
sons wishing to buy automobiles at retail.

In Katz v. U. 8., 389 U. S. 347 at 350, 88 S. Ct. 507,
this court held that what a person seeks to preserve as
private, even in an area accessible to the public, may
be constitutionally protected. The case of Wattenburg
v. U. 8., 388 F. 2d 853 (1968) (9th) presents a very
similar fact situation. In that case, Defendants were
convicted for conspiring to conceal about a hundred
christmas trees which had been taken from the U. S.
The evidence shows that the trees were cut and were
taken to the premises known as Hide-a-way Lodge.
The distance between where the trees were stockpiled
and the lodge was from 20 to 35 feet and the stockpile
was about five feet from the parking area used by per-
sonnel and patrons of the lodge. Wattenburg operated
and lived at the lodge and the other Defendant, Owens .
rented a room there, which he sometimes occupied.
Government agents conducted a search on _ these
premises and obtained cuttings from trees which
matched the stumps on the government land and a
paint smudge on one of the trees which matched that

12

of the vehicle that transported them. The government
contended that the search was good under the ‘‘Open
Fields Doctrine’. The Ninth Circuit held that there
was no difficulty in holding that the trees were within
the curtilage, }-1t the court went on to hold that it
seems to be a more appropriate test in determining if
a search and seizure adjacent to a house is constitu-
tionally forbidden is whether it constitutes an intru-
sion upon what the resident seeks to preserve as
private. Even in an area, although adjacent to his
home, accessible to the public, the court held the search
was illegal and the evidence was suppressed. The
christmas trees were stockpiled so close to the lodge,
which rented rooms to patrons, who used the lodge
and the parking lot, that it was protected from a war-
rantless search. The automobiles in this case were
adjacent to the office of the Petitioners and all the evi-
dence was to the effect that it was not a business open
to the publie in general and was not there for com-
mereial in the sense that the Sixth Cireuit used the
word. The motion to suppress the odometer readings
from the three Oldsmobiles should be suppressed, since
it was a search conducted without a warrant on the
Petitioner premises.

The court dismissed the Petitioner’s claim of abuse
of the due process clause and held that this case dis-
closed no such due process abuse as was involved with
U. S. v. Doss, 563 F. 2d 265 (6). In the Doss case,
the indictments were dismissed for the reason that the
Defendant, who had been secretly indicted by sealed
indictments, was called before the Grand Jury that

13

indicted him and was questioned about the offenses in
the indictment. The court held that this was a viola-
tion of the fourth and sixth amendment of the constitu-
tion and dismissed the indictments. The Court, in the
ease now before the court stated that.it could not
ascertain any prejudice involved in his answers to the
six questions which the district court required him to
answer. (Italics ours.) The Petitioners never ob-
jected to being asked these six questions nor did the
Petitioners claim any prejudice by reason of answering
these six questions. The Petitioners contend that the
some thirty pages of questioning by the prosecutor,
which in no way related to the six questions, violated
his fifth amendment privilege in incriminating himself
and prosecutor’s actions and questions violated the due
process clause of the fifth amendment. The Petitioner,
on his three previous trips before the Grand Jury, had
invoked his privilege against self incrimination on some
questions and had answered others. But in his last
appearance, the court directed that only six questions
be asked and none others. The court had already de-
termined that any other questions propounded by the
prosecution in the Grand Jury room, was subject to the
Petitioner’s former claim of his fifth amendment privi-
lege. The court in effect, told the U.S. Attorney that
any questions other than these six, if answered would
violate the petitioner’s fifth amendment privilege. It
cannot be questioned that the U.S. Attorney violated
the direct order of the court before the grand jury.
The Petitioner was questioned about the very docu-

14

ments relating to the three automobiles in the indict-
ment. The questions were asked as to entries on these
documents, which violated the court’s order that the
Petitioner was not required to answer any questions
pertaining to individual entries on any documents
produced to him. These very documents were used in
the government’s case at trial and the petitioner’s
motion to suppress these documents was denied. The
Petitioner was asked questions about his dealings with
Jackie Brandon, who the Petitioner testified actually
owned the automobiles at the time they were inven-
toried on December 13, 1976, by FBI agents. The Peti-
tioner was questioned about other employees who
worked for him and numerous other questions in direct
disobedience to the court’s order.

Chief Justice Berger, in the case of U. S. v.
Mandujano, 425 U. 8S. 564, 48 L. Ed. 2d 212, 96 S. Ct.
1768, stated at 96 S. Ct. page 1778:

‘*‘Under Miranda, a person in police custody has,
of course, an absolute right to decline to answer
any question, incriminating or innocuous, see
Michigan v. Mosley, 423 U. 8. 96, 46 L. Ed. 2d 313,
96 S. Ct. 321 (1975), whereas a grand jury witness,
on the contrary, has an absolute duty to answer all
questions, subject only to a valid fifth amendment
elaim. And even when the grand jury witness
asserts the privilege, questioning need not cease,
except as to the particular subject to which the
privilege has been addressed. Cf. id., at 103-104,
46 L. Ed. 2d 313, 96 S. Ct. 321. Other lines of
inquiry may properly be pursued.”

15
The Court at 96S. Ct. at page 1776 stated:

“The stage is therefore set when the question is
asked. If the witness interposes his privilege, the
grand jury has two choices. If the desired testi-
mony is of marginal value, the grand jury can
pursue other avenues of inquiry; if the testimony
is thought sufficiently important, the grand jury
can seek a judicial determination as M4 the bona
fides of the witness’s fifth amendment claim. (Cit-
ing Cases), in which case the witness must satisfy
the presiding judge that the claim of privilege is
not a subterfuge. If in fact ‘there is reasonable
ground to apprehend danger to the witness from
his being compelled to answer,’ (Citing Cases),
the prosecutor must then deter mine whether the
answer is of such overriding importance as to
justify a grant of immunity to the witness.”

This case goes far beyond the court’s guidelines in
Mandujano, supra. The petitioner when he was in the
grand jury room, with twenty three grand jurors, a
court reporter and two assistant U.S. Attorneys, went
ahead and answered the questions which the court had
specifically prohibited in its erder. The government
cannot contend that the Petitioner, by not interposing
his grounds of privilege, has waived his rights. The
court in its order, had interposed the petitioner’s fifth
amendment rights to any questions other than the six,
which it authorized to be asked. If ever there was a
violation of the due process clause and the overriding of
the petitioner’s right not to incriminate himself, this
case is the shining example. The U.S. Attorney’s
office, in spite of the court’s ruling, proceeded to use

16

the Grand Jury as an investigative tool in order to
convict the petitioner. The motion to suppress all
documents and evidence relating to the three Olds-
mobiles in the three count indictment should have been
suppressed and not been admissible in the trial of this
action.

WHEREFORE, THE Petririoners Request this court
that a Writ of Certiorari be issued to the United States
Court of Appeals for the Sixth Cireuit, reversing their
decision in this case.

FE. W. Rivers

Suite 801
Citizens Bank Building
Paducah, KY 42001

Attorney for Petitioners

---

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