Petition — Bowman v. United States

| } OCT 17 1979

IN THE Ne

Supreme Court of the Un ate ER

October Term, 1979

JOHNNY W. BOWMAN,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE NINTH CIRCUIT COURT OF APPEALS

MICHAEL PANCER

SHELDON SHERMAN

520 “E” Street, Suite 1100

San Diego, California 92101

Telephone - (714) 236-1826

Attorneys for Petitioner

RHE ROP SR ETRE ES SRT NEE ROI ACEI ENOTES ATT RNR RRR ST

Dean Staudefer, 326% Main St., Huntington Beach, Ca. 92648 - (714) 536-7161

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TOPICAL INDEX

pwn

Petition for Johnny W. Bowman for

a Writ of Certiorari to review the Memo-

randum filed by the United States Court

of Appeals for the Ninth Circuit on

PU PE wt a wesc seccseccesnces ‘

A ANABAENA CI AN aut ae

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EIS SEE

LSS OPO CTE

Constitutional Provisions and

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Reasons Why The Writ Should

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The activity observed by the surveilling

agents was insufficient to establish

probable cause for the issuance of a

search warrant for Petitioner’s residence ....

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TABLE OF AUTHORITIES CITED

Cases

Acosta v. Beto, 397 F. Supp. 89

SES OTT TEE

Aguilar v. Texas, 378 U.S. 108,

I, okie cece sce ssces

ii

TABLE OF AUTHORITIES CITED

Cases (cont’d) Page

Brinegar v. United States, 338 U.S. 160,

Ce Ce ne oi aS wk CESK ees 9, 10

Mangaser v. United States, 336 F.2d 971

Pe MEER Gee NT cde he ke ek os he ee 11, 14, 15, 16

Sibron v. New York, 392 U.S. 40,

ee re 12, 13

Spinelli v. United States, 393 U.S. 410,

ee, ee Oe ies kek eee aan kee ues 11

United States v. Bowers, 534 F.2d 176

(9th Cir., cert. denied 429 U.S. 942,

ee ES 8S ccd ite vee ss >< 10

United States v. Connolly, 479 F.2d 930

(9th Cir.), cert. denied 414 U.S. 897,

as POE Bice had be eke bcee ss 16, 17

United States v. Fried, 576 F.2d 787

GS BOPP iia a'ck bale ae Oe ls 8b ee 10

United States v. Kalama, 549 F.2d 594

Ss CREE soa eke a oe Wik e os kee o's 10

United States v. Lucarz, 430 F.2d 1051

I Sd ok chk Bue ya a gin ee Phe os 10

United States v. Moore, 483 F.2d 1361

Sn weet sav ehaeeeke wa eanseaes 13

United States v. Ventresca, 380 U.S. 102,

op He Re bd. | Bee ee, ae ee eae ee RS 10, 11

United States Constitution

NT 5: es Se PR Pe ee 3, 4,9

fa tt nN

TABLE OF AUTHORITIES CITED

Statutes (United States)

Title 21, United States Code

§ 841(a)(1)

2 ie en ee eee ee SS 8-8 ea Eee Bele

ee ee See oe COS o Bee eS Se

§ 846

Title 28, United States Code

§ 1254(1)

oe ed

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1979

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JOHNNY W. BOWMAN,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

ee PETITION FOR WRIT OF CERTIORARI

TO THE NINTH CIRCUIT COURT OF APPEALS

’ To the Honorable Chief Justice and Associate Justices

of the Supreme Court of the United States:

This is a Petition for JOHNNY W. BOWMAN for a

Writ of Certiorari to review the Memorandum filed by the

United States Court of Appeals for the Ninth Circuit on

June 26, 1979, refusing to reverse Mr. BOWMAN ’s convic-

tion for knowingly and intentionally possessing with intent

x, eo

to distribute approximately 132 grams of cocaine in viola-

tion of Title 21, United States Code Section 841(a)(1).

The United States Court of Appeals for the Ninth Circuit

ruled that the search warrant issued for Mr. BOWMAN’s

residence was supported by probable cause. Specifically,

the Court found that the activities observed by the sur-

veilling agents established a rational inference to believe

that the cocaine found on a Mr. Berroteron and a Mr.

Short came from Mr. BOWMAN’s residence and that a

search of that residence would produce additional evi-

dence of narcotics violations.

OPINIONS BELOW

To the Petitioner’s knowledge, the opinion in the

United States Court of Appeals for the Ninth Circuit,

affirming Petitioner’s conviction, has not been officially

or unofficially reported as yet. (A copy of the Memo-

randum issued by the Ninth Circuit Court of Appeals is

attached hereto as Appendix “‘A”’.)

JURISDICTION

1. On April 19, 1978, the Federal Grand Jury for

the Southern District of California returned a Three-Count

Indictment against Petitioner BOWMAN and his wife charg-

ing violations of Title 21 U.S.C. §8§ 841(a)(1) and 846.

2. On September 13, 1978, Petitioner was tried

before the Honorable Howard B. Turrentine, United States

District Judge, on “stipulated facts,” and was convicted of

knowingly and intentionally possessing with intent to distri-

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bute approximately 132 grams of cocaine (Count III).

On November 20, 1978, Petitioner was committed to

the custody of the Attorney General for a period of five

years. It was further ordered that Petitioner serve a

Special Parole Term of five years as proscribed by Title 21,

U.S.C. 8 841(b)(1)(A). Petitioner thereafter filed a timely

Notice of Appeal.

3. On June 26, 1979, the United States Court of

Appeals for the Ninth Circuit affirmed BOWMAN’s con-

viction and on September 12, 1979, BOWMAN ’s Petition

for Rehearing and Suggestion for Rehearing In Banc was

denied by said Court.

4. The jurisdiction of this Court is invoked under

Title 28, U.S.C. § 1254(1).

QUESTIONS PRESENTED

1. Were the activities observed by the surveilling

agents sufficient to establish probable cause for the issu-

ance of a search warrant for Petitioner’s residence?

2. What effect should a decision from a different

panel of the same Court, involving the identical facts, have

upon a decision rendered by another panel?

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

1. Fourth Amendment to the United States Con-

stitution:

“The right of the people to be secure in

llads

their persons, houses, papers and effects

against unreasonable searches and seizures,

shall not be violated, and no warrants shall

issue, but upon probable cause, supported

by oath or affirmation, and particularly

describing the place to be searched, and the

persons or things to be seized.”

2. Title 21, U.S.C. § 841(a)(1)

Section 841. Prohibited acts A—Unlawful acts.

“(a) Except as authorized by this subchap-

ter, it shall be unlawful for any person knowing-

ly or intentionally—

“(1) to manufacture, distribute, or

dispense, a controlled substance.”

STATEMENT OF THE FACTS

On March 29, 1978, at approximately 10:15 p.m.,

agents of the Narcotics Task Force (N.T.F.) on duty at

the San Diego International Airport observed David

Berroteron and Rodney Short walking through the con-

course area. Because of their suspicious behavior and the

fact that the two individuals fit the “profile” of a narcotics

trafficker,! surveillance was established.

The two individuals were followed when they left the

airport by taxi. The taxi took them to Santee, a drive of

about forty-five minutes. During the course of the drive

lRoth individuals appeared very nervous and were constantly looking around

as if looking for someone. Neither had any luggage, but one individual had a

briefcase while the other individual was carrying another small case.

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to Santee, the agents observed the individuals from time

to time look out the back window of the cab, as if check-

ing for anyone following them. The two individuals exited

the cab about a block and one-half from Petitioner’s resi-

dence located at 9756 Yellowstone Place, Santee. The two

individuals walked the remaining block and one-half to the

residence, arriving at approximately 10:55 p.m.

Berroteron and Short remained at the residence over

night. Throughout the evening, the surveilling agents

observed allegedly “‘suspicious” activities in and around

the residence. When some noisy activity took place at a

nearby house, the lights in Petitioner’s residence were ob-

served to go out and the drapes open. Someone then appear-

ed to look out and, after the people who had been making the

noise left, the drapes were closed and the lights were turned

back on. At approximately 11:35 p.m., a 1975 Cadillac was

observed to drive to the residence and the driver entered the

house. Approximately one-half hour later, a car drove through

the cul-de-sac street on which Petitioner’s residence is located

and, as the car’s headlights went past the house, the lights in

the residence went out. The agents then observed someone

to peer out through the drapes and, about a minute to a

minute and one-half later, the lights were again turned on.

At approximately 12:30 a.m., Petitioner and Berroteron

exited the residence and entered a red Ford Courier pick-up

truck. They drove to a U-Totem store and returned. A few

minutes later, Petitioner went from the residence to the

Cadillac, where he was observed to remain for about three

or four minutes with the lights going on and off and some

activity taking place in the car. He then returned to the

residence.

me

The next morning, Petitioner, Berroteron and Short

left the residence in the Courier pick-up truck at approxi-

mately 8:00 a.m. The truck stopped at R. W. Little Com-

pany, the registered owner of the Courier. Petitioner was

observed to enter the office and, a few minutes later,

another man entered the truck and drove off. The truck

proceeded to the San Diego Airport, arriving at approxi-

mately 8:40 a.m. Berroteron and Short entered the termi-

nal, went to the P.S.A. desk, and purchased flight tickets

in the names of Short and Vargas. The two men then went

to the bar where they had cocktails until about eight minutes

prior to the scheduled departure of their flight.

When Berroteron;and Short attempted to pass through

the security gate, they were contacted by N.T.F. agents and

escorted to the Harbor Police Office. When questioned con-

cerning his identity, Berroteron admitted that his name was

Berroteron, but said that he traveled under the name of

; Vargas all the time. One of the N.T.F. agents recalled that

Berroteron had recently been convicted of smuggling approx-

imately one-half ton of marijuana in a San Diego case and

that he was also a subject of a current investigation involving

airplane smuggling of narcotics.

The two individuals were informed that the agents were

conducting a narcotics investigation and both men were asked

for permission to search their bags. Both Berroteron and

Short voluntarily consented to the search of the briefcase

and the shaving kit. When the shaving kit was emptied, a

tennis ball can was observed inside. When the agent picked

it up, it appeared to be unbalanced. After receiving permis-

sion from Berroteron to open the tennis ball can, the agent

observed that there was only one tennis ball in it and that

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a part of the can was cut off and was, in fact, a secret

compartment. Knowing that this was a common method

of smuggling narcotics, and finding the compartment to

be empty, the agents placed Berroteron under arrest and,

during a subsequent pat-down search, a “baggie” of mari-

juana and two “baggies” containing about five ounces of

cocaine were seized from Berroteron’s boots.

The briefcase was then opened and a can of shaving

cream was examined. When it too felt unbalanced, it was

opened and also found to have a hidden compartment.

Short was then placed under arrest and a plastic bag con-

taining cocaine was found in each of his boots during a

pat-down search. A paper bundle of cocaine was also

found in his breast pocket along with a note with Donna

Bowman’s name, address and telephone number on it.

Based on the previously observed activities and the

finding of the cocaine, a federal search warrant was obtain-

ed for Petitioner’s residence. A search of the residence

uncovered approximately five ounces of cocaine, small

amounts of marijuana, and $12,400 cash. After conducting

the search of the residence, surveillance agents were notified

to arrest Petitioner. At the time of his arrest, a brown brief-

case was seized and searched and found to contain $2,140

and a book with notations concerning narcotics dealings.

Berroteron and Short were charged in a separate case

with narcotics offenses involving the nine ounces of

cocaine that they were transporting. They each brought

motions to suppress, which were granted by Judge Turren-

tine on the basis that the Government agents did not have

an adequate founded suspicion to make the initial stop at

the airport. On February 20, 1979, the Ninth Circuit Court

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of Appeals, in an unpublished Order (attached hereto as

Appendix “B’’), affirmed the decision of the District

Court ordering the evidence seized from Bzrroteron anc

Short suppressed.

REASONS WHY TRE WRIT

SHOULD BE GRANTED

In concluding that the activities observed by the

surveilling agents established a rational inference to

believe that the cocaine found on Berroteron and Short

came from Petitioner’s residence and that a search of that

residence would produce additional evidence of narcotics

violations, the particular panel of the Court unfortunately

ignored voluminous case authority which preclude a finding

of probable cause for either an arrest or search based upon

mere “suspicions,” “beliefs” or “conclusions.” Another

panel of the Court had previously recognized this principle

in holding that the activities observed in the instant case

did not even amount to a “founded suspicion” (Appendix

“B,”’ p. 4) to detain Berroteron and Short at the airport.

While Petitioner admittedly did not have standing to raise

the unlawfulness of that detention in his own case, it is still

submitted that the decision in that case should have had a

greater bearing on the outcome of this case. The only distin-

guishing factor between the two cases was the discovery of

cocaine on Berroteron’s and Short’s person. But, consider- -

ing that no contraband or any other illegitimate activity

whatsoever was observed to have taken place at Petitioner’s

residence during the previous evening, it was total specula-

tion on the part of the agents that Petitioner was the source

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of the narcotics. And, considering that Petitioner had

no history of narcotics dealings or any other criminal

record, it was further speculation that his residence

contained evidence of narcotics trafficking.

It is difficult to understand how two panels from

the same Court could have reached such opposite results

while reviewing almost identical facts. It is precisely the

inconsistency of these two rulings which requires the grant-

ing of this Petition for Writ of Certiorari. Justice and con-

tinued faith in our judicial system demand such a result.

ARGUMENT

The Activity Observed By The Surveilling

Agents Was Insufficient To Establish Probable

Cause For The Issuance Of A Search Warrant

For Petitioner’s Residence.

It is fundamental that a search warrant should only

be issued upon facts showing probable cause. (United

States Constitution, Amendment IV; Brinegar v. United

States, 338 U.S. 160, 175, 69 S. Ct. 1302, 1311 (1948).

The requirement of probable cause interposes the magis-

trate between the police officer’s zealous pursuit of

suspects and evidence and the citizen’s pursuit of privacy

and freedom from unreasonable interference. The magis-

trate’s function in this scheme is to render a neutral and

detached judgment, not to serve as a perfunctory rubber

stamp for the police. Aguilar v. Texas, 378 U.S. 108, 84

S. Ct. 1509 (1964).

Probable cause to issue a warrant is said to exist when

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the facts and circumstances shown in the affidavit would

warrant a man of reasonable caution to believe that the

items to be seized were in the stated place. Brinegar v.

United States, supra, 338 U.S. at 175-176, 69 S. Ct. at

1311; United States v. Kalama, 549 F.2d 594, 595 (9th

Cir. 1976). In determining the existence of probable

cause, che magistrate should read “the affidavit as a

whole [,] . . . giving the language a common sense

and realistic interpretation . . . ” United States v.

Bowers, 534 F.2d 176, 182, n. 5 (9th Cir.), cert. denied,

429 U.S. 942, 97 S. Ct. 360 (1976); acc’d, United States

vy. Fried, 576 F.2d 787, 790 (9th Cir. 1978); United States

vy. Lucarz, 430 F.2d 1051, 1055 (9th Cir. 1970). As stated

by this Court in United States v. Ventresca, 380 U.S. 102,

108-109, 89 S. Ct. 741, 746 (1965):

“(T]he Fourth Amendment commands,

like all constitutional requirements, are practi-

cal and not abstract. If the teachings of the

Courts’ cases are to be followed and the con-

stitutional policies served, affidavits for search

warrants, such as the one involved here, must

be tested and interpreted by magistrates and

courts in a common sense and realistic fashion.

They are normally drafted by non-lawyers in

the midst and haste of a criminal investigation:

Technical requirements of elaborate specificity

once extracted under common law pleadings

have no proper place in this area. A grudging

or negative attitude by reviewing courts towards

warrants will tend to discourage police officers

from submitting their evidence to a judicial

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officer before acting.”

Nevertheless, the courts have also recognized that a

warrant cannot stand, even with the aid of constructional

guides, if the affidavit is not based on information from

which the magistrate can make an independent determina-

tion of probable cause. Just as mere suspicion or the exist-

ence of a possibility that defendants have committed a

crime do not justify an arrest (see Mangaser v. United States,

336 F.2d 971, 974 (9th Cir. 1964) ), an affidavit containing

only opinions and conclusions will not support a finding of

probable cause for the issuance of a search warrant. See,

generally, Aguilar v. Texas, supra; Spinelli v. United States,

393 U.S. 410, 89 S. Ct. 584 (1969). The magistrate must

be presented facts and not conclusory statements if he is to

perform his detached function and not become a rubber

stamp for the police. Thus, warrants should not be sustain-

ed when to do so would dilute “important safeguards that

assure that the judgment of a disinterested judicial official

will interpose itself between the police and the citizenry.

[Footnote omitted.]” Spinelli v. United States, supra,

393 U.S. at 419, 89 S. Ct. at 591.

Turning to the affidavit here, the most that could

have been determined was that Berroteron and Short were

visitors at Petitioner’s residence the evening prior to their

being detained at the airport and cocaine seized from their

person. All other observations made by the surveilling

agents with regard to their arrival, overnight stay, and sub-

sequent departure, were, as a panel of the Ninth Circuit

stated, “consistent with innocent behavior” (Appendix “‘B,”

p. 4). Thus, it is clear that the agents based their opinion

that the cocaine seized from Berroteron and Short came

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from Petitioner’s residence upon merely a “‘suspicion”’ or

“hunch,” not upon articulable facts which could have led

a reasonable person to believe that the occupants of the

residence had been or were engaged in criminal activity.

The inability of the Government in the present case

to justify the issuance of a search warrant for Petitioner’s

residence based upon the activities observed is made clear

through an analysis of, and comparison with, several cases.

First, it must be realized that the only facts which can give

rise to probable cause are facts which deal with criminal

activity. This particular point was specifically made in

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

when the Court stated:

“Turning to the facts of Sibron’s case,

it is clear that the heroin was inadmissible

in evidence against him. The prosecution has

quite properly abandoned the notion that

there was probable cause to arrest Mr. Sibron

for any crime at the time Patrolman Martin

accosted him in the restaurant, took him out-

side and searched him. The officer was not

acquainted with Sibron and had no information

concerning him. He merely saw Sibron talking

to a number of known narcotic addicts over a

period of eight hours. It must be emphasized

that Patrolman Martin was completely ignorant

regarding the content of these conversations, and

that he saw nothing pass between Sibron and the

addicts. Insofar as he knew, they might indeed

‘have been talking about the World Series’. The

inference that persons who talk to narcotic addicts

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are engaged in the criminal traffic in narcotics

is simply not the sort of reasonable inference

required to support an intrusion by the police

upon an individual's personal security. Nothing

resembling probable cause existed until after the

search had turned up the envelopes of heroin.

It is axiomatic that an incident search may not

precede an arrest and serve as part of its justifica-

tion.’”” (Emphasis added.) (392 U.S. at 62 - 63,

88 S. Ct. at 1902 - 1903.)

In United States v. Moore, 483 F.2d 1361, 1363 (1973),

the Ninth Circuit considered the applicability of this principle

with specific regard to innocent conduct. Tne Court empha-

sized that “suspicious conduct is not enough”’ and concluded:

“Probable cause is lacking ‘if the circumstances

relied on are susceptible to a variety of credible in-

terpretations not necessarily compatible with nefar-

ious activities’. United States v. Klandis, 423 F.2d

132, 136 (9th Cir. 1970), quoting United States v.

Selby ... 407 F.2d at 243.”

As previously indicated, the Jack of any observations by

the surveilling agents in this case indicating the existence of

criminal activity was found by another panel of the Ninth

Circuit in holding that the detention of Berroteron and Short

at the airport was without even “founded suspicion” (Appen-

dix ““B,” p. 4). The panel in the present case, to maintain con-

sistency within the Circuit, must therefore have based its

opinion upon the mere presence of Berroteron and Short at

Petitioner’s residence during their stay in San Diego, the only

real nexus between the cocaine found on Berroteron and

Short and Petitioner. But, considering the deficiency of any

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specific information indicating Petitioner was the source

of the cocaine found on Berroteron and Short, the lack

of any criminal record whatsoever of Petitioner, and the

fact that Berroteron and Short were not under constant

surveillance during their stay in San Diego, it is submitted

that the single factor of “‘presence”’ in and of itself is not

sufficient to justify the issuance of a search warrant.

With regard to the specific fact of “‘mere presence,”

three factually similar cases again demonstrate the applica-

tion of the “innocent conduct” principle. In Mangaser v.

United States, supra, the Court listed the following twelve

facts as those relied upon by the Government on the ques-

tion of probable cause.

*“(1) On three occasions in January, 1963,

Daniel Estrada had purchased heroin from Pan-

iagua under the supervision of narcotics agents

and on each occasion, Paniagua had driven away

from his house to some other location where he

apparently obtained the narcotics he was selling.

(2) On January 28, 1963, Estrada again

went to Paniagua’s house to buy heroin and was

told by Paniagua that some customers in a Buick

also wanted to purchase narcotics.

“(3) Followed by the Buick, Estrada drove

Paniagua to appellant’s neighborhood, and there

Paniagua alighted from Estrada’s vehicle and spoke

to appellants who were sitting in a 1950 Chevrolet

which was stopped in the street.

“(4) Paniagua returned to Estrada’s auto and

asked him for the money—which Estrada gave him.

“(5) As this was being done, appellants drove

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the red Chevrolet into a driveway and disappear-

ed from view.

“(6) Paniagua walked in the direction their

car had gone until he too was lost from sight.

““(7) Estrada then drove a short distance

away and met with officers. When he arrived

back at his original location, the Buick, with the

other ‘customers’, was still parked at the curb.

Soon Paniagna returned and gave Estrada some

heroin.

“(8) Paniagua said that Estrada had bought

his ‘sources’ last five quarters and the source had

to get some more.

“(9) Almost immediately after this, the red

Chevrolet, occupied by appellants, backed out of

the driveway and drove away.

(10) Estrada subsequently met with officers,

turned over the heroin, and was found to be without

the money previously given him.

“(11) That afternoon appellants reappeared

in their Chevrolet and drove into the same driveway.

“(12) They were arrested as they alighted

from the car.” (336 F.2d at 973.)

In concluding on these facts that the officers did not have

probable cause to believe that the appellants had committed

an offense, the Court reasoned that these facts established

only contact between Paniagua and the appellants, “‘but

whether this conduct was a mere innocent conversation or

a salutation between acquaintances, or something more, we

cannot know.” (Emphasis added.) (/d.)

“Thus, when the [appellants] were arrested, there

ade

was certainly a possibility that they were the

suppliers, but can it fairly be said more than

a suspicion existed?” (/d.)

The Court answered this question in the negative and

reversed the appellants’ conviction.

In United States v. Connolly, 479 F.2d 930 (9th

Cir.), cert. denied, 414 U.S. 897, 94 S. Ct. 248 (1973),

appellant Connolly had sold two ounces of cocaine to

an undercover agent in Los Angeles. The agent contin-

ued negotiating with Connolly for the purchase of more

cocaine, and on the evening of the next transaction,

Connolly’s house was placed under surveillance. Just

after midnight, Connolly was followed from his house

to a house six or seven miles away. Connolly had pre-

viously told the agents that the “‘stashpad”’ for the co-

caine was some two minutes away from his house. The

surveilling agents saw Connolly start up and come down

a flight of stairs, but did not actually see Connolly enter

the house. One of the surveilling agents later testified

that he saw Connolly carrying a brown paper bag down

the stairs.

As soon as Connolly returned to his house, he was

arrested and found in his car was a paper bag containing

four ounces of cocaine. After his arrest, Connolly agreed

to lead the agents to the house from which he had obtain-

ed the cocaine. He took them to what proved to be appel-

lant Jefferson’s house. It was the same house that Connolly

had visited earlier in the evening. The Jeffersons were

arrested inside their house and ten more ounces of cocaine

were eventually seized.

In concluding that the evidence seized from the residence

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should have been excluded as against Jefferson, as the fruit

of an illegal arrest, the Court reasoned:

“At the outset, the agents lacked probable —

cause to arrest the Jeffersons when they forced

entry. The agents knew that cocaine had been

taken from the Jeffersons’ premises not long

before they arrived, but they did not know who

might be inside the house, how long such persons

might have been there, or what relationship these

individuals might have to Connolly. All the agents

knew was that some contraband probably remain-

ed on the premises.

“Even certain knowledge that contraband

is within a dwelling does not constitute probable

cause to arrest whoever happens to be inside. See

Johnson v. United States, 333 U.S. 10, 15-17,

68 S. Ct. 367, 92 L. Ed. 436 (1948).

“The intrusion into the Jefferson house fares

no better if it is seen as an entry to search rather

than to arrest. ‘Belief, however well founded, that

an article sought is concealed in a dwelling house,

furnishes no justification for a search of that place

without a warrant.’ Agnello v. United States, 269

U.S. 20, 33, 46 S. Ct. 4, 6, 70 L. Ed. 145 (1925).

To hold otherwise would be to say, paradoxically,

that when police have probable cause for a warrant

they need not obtain a warrant. The agents viola-

ted the Fourth Amendment by entering the

dwelling. [See citations omitted.]”” (479 F.2d at

936.)

Finally, in the case of Acosta v. Beto, 397 F. Supp. 89

=

(S.D. Tex. 1968), the Court was also confronted wiih the

question of whether the fact that a known narcotics dealer

visited the petitioner’s house would be adequate to support

a finding of probable cause. The Court held:

“ . . . The affidavit alleging that affiants

received reliable information from credible per-

sons that accused possessed heroin at named

address, that on or about four prior occasions

the credible person had given information con-

cerning possession of narcotics by certain indi-

viduals, that on every occasion the information

had proved to be true, that based on this informa-

tion the affiants set up a surveillance of the house

at named address from 7:00 o’clock to 10:00

o’clock and observed known users of narcotics

to enter the house and remain five minutes and

leave was insufficient to show probable cause

for the issuance of a search warrant.” (397 F.

Supp. at 94.) |

If the Court could not find probable cause with the tip of

a proven reliable informant and the above-corroborating

circumstances, then the comparable innocent activities

described in the instant case surely did not constitute

probable cause for the issuance of a search warrant.

A re-examination of the voluminous cases decided by

this Court and the Ninth Circuit Court of Appeals will reveal

that both Courts have uniformly demanded much more in-

Criminating behavior on the part of a suspect, as confirmed

by either an informant, an undercover officer, or observa-

tions by surveilling agents, before a finding of probable cause

can be made. In light of the fact that the affidavits in the

Putt r+

=t@.

instant case did not contain such first-hand information,

and the fact that absolutely no criminal activity was ob-

served by any surveilling agent to have taken place at

Petitioner’s residence, it is submitted that the search

warrant for that residence was issued without probable

cause and that all evidence seized pursuant to the illegally

issued warrant should have been suppressed.

CONCLUSION

For the above-mentioned reasons, Petitioner JOHNNY

W. BOWMAN respectfully requests that this Honorable Court

grant the instant Petition for Writ of Certiorari.

Respectfully submitted,

MICHAEL PANCER

SHELDON SHERMAN

Attorneys for Petitioner

——s-

—

—

INDEX TO APPENDICES

Page

Memorandum filed in the United

States Court of Appeals for the

Ninth Circuit on June 26, 1979

in re United States v. Johnny

Walden Bowman, No. 78-3630 ...... l

Order - not to be published - filed

in the United States Court of Appeals

for the Ninth Circuit on February 20,

1979, in re United States v. Rodney

E. Short (No. 78-2233) and David J.

Berroteron (No. 78-2232) .......... 3

APPENDIX “A”

MEMORANDUM

|

In the United States Court of Appeals for the Ninth

Circuit.

UNITED STATES OF AMERICA, Plaintiff-Appellee,

vs. JOHNNY WALDEN BOWMAN, Defendant-Appellant.

No. 78-3630.

[Filed June 26, 1979]

On Appeal from the United States District Court for

the Southern District of California.

Before: BARNES, MERRILL and TANG, Circuit Judges.

Appellant was convicted of possession of cocaine with

intent to distribute. He assigns as error the failure of the

district court to suppress evidence obtained in a search of

his house pursuant to warrant. He contends that the affi-

davits on the basis of which the warrant was issued were

insufficient to establish probable cause to believe that a

search of the premises would produce evidence of narcotics

violations.

The affidavits establish the following facts: San Diego

officers had placed two persons under surveillance at the

San Diego Airport at 10:15 p.m., March 29, 1978. The two

persons left the airport in a taxi and were followed by police

to appellant’s house. They did not drive to appellant’s door,

but at 10:55 p.m. were let out a block and a half away, from

which point they walked to the house. Thereafter, on two

occasions during the night, at 11:20 and 11:50 p.m., activity

Appendix 2.

in the neighborhood (the noisy loading of a car in front of

a house two doors away; the passage across the house of

the headlights of a car making a full turn nearby) was

followed by the extinguishing of all lights in appellant’s

house. A face then was observed peering out the front

window between the draperies for a period of a few min-

utes sufficient to enable the sources of disturbance to be

ascertained. The lights in the house then came on again.

The next morning police followed the two visitors back

to the airport. There they were stopped, questioned and

searched, and cocaine in commercial quantity was found

on their persons.

The question presented is whether these facts provided

a rational connection between the cocaine recovered from

the visitors and the house where they had spent the night

sufficient to warrant an inference that the cocaine had

been obtained there and that a search of the house would

produce evidence of narcotics traffic. In our judgment,

the extraordinary manner in which the visitors approached

the house and, after their arrival, the manner in which those

in the house reacted to street activity, could rationally give

rise to an inference that those in the house wished to avoid

discovery of what was occurring there (or was later to occur).

When the cocaine was seized at the airport a rational explana-

tion for the extraordinary conduct emerged and provided the

necessary connection.

Appellant also contends that the search of the two visi-

tors at the airport was unlawful (it was so held by the district

court in criminal proceedings taken against them), and that

the product of that unlawful search could not be relied on

in the affidavits supporting a warrant for the search of appel-

Appendix a

lant’s house. Appellant, however, has no standing to assert

invalidity of the airport search. There was neither intru-

sion upon his privacy nor on any property rights of his in

that which was seized. United States v. Rakas, ..... US. .....

(1978). Nor was there automatic standing. While appellant

was charged with possession of cocaine, it was not the cocaine

seized in the unlawful search that he was charged with posses-

sing.

Judgment affirmed.

APPENDIX “B”

ORDER

DO NOT PUBLISH

In the United States Court of Appeals for the Ninth

Circuit.

UNITED STATES OF AMERICA, Plaintiff-Appellant,

vs. DAVID J. BERROTERON, Defendant-Appellee.

No. 78-2232.

UNITED STATES OF AMERICA, Plaintiff-Appellant,

vs. RODNEY E. SHORT, Defendant-Appellee.

No. 78-2233

Appendix 4

[Filed February 20, 1979}

Before: BROWNING and ANDERSON, Circuit Judges,

and CLAIBORNE’, District Judge.

The Government appeals from a pre-trial order of the

United States District Court, Southern District of California,

granting a motion to suppress. The trial court held that the

police officers did not have a founded suspicion upon which

to detain the Appellees and, therefore, the fruits of the illegal

detention had to be suppressed. Cf. United States v. Barragan-

Martinez, 504 F.2d 1155, 1157 (9th Cir. 1974). We agree. It

appears to us that the officers could not have been aware of

specific, articulable facts, together with rational inferences

therefrom, which reasonably warranted suspicion that crim-

inal activity was afoot (Cf. United States v. Brignoni-Ponce,

422 U.S. 873, 884, 95 S. Ct. 2574, 2582, 45 L. Ed. 2d 607

(1975) ), at the time of detention in the airport security-

check area. Every act of the appellees which the officers

observed, up to that point, was consistent with innocent

behavior, and the officers reasonably should have believed

this. Cf. United States v. Holland, 510 F.2d 453, 455 (9th

Cir.), cert. denied, 422 U.S. 1010 (1975).

Affirmed.

*The Honorable Harry E. Claiborne, United States District Judge for the District

a "

PROOE.OF SERVICE BY MAIL

STATE OF CALIFORNIA )

) ss.

County of Orange )

I, the undersigned, say: I am and was at all times herein mentioned, a citizen

of the United States and employed in the County of Orange, State of Califor-

nia, over the age of eighteen years and not a party to the within action or

proceeding; that

My business address is 326% Main Street, Huntington Beach, California 92648,

that on OCTOBER / G'¥s79, I served the within PETITION FOR WRIT OF

CERTIORARI (BOWMAN vs. UNITED STATES OF AMERICA) on the

following named parties by depositing the designated copies thereof, enclosed

in a sealed envelope with postage thereon fully prepaid, in the United States

Post Office in the City of Huntington Beach, California, addressed to said

parties at the addresses as follows:

WADE H. McCREE, JR.

SOLICITOR GENERAL

U. S. DEPARTMENT OF JUSTICE

WASHINGTON, D. C. 20530 (3 copies)

MICHAEL H. WALSH

U. S. ATTORNEY

SOUTHERN DISTRICT OF CALIFORNIA

940 FRONT STREET

SAN DIEGO, CALIFORNIA 92189 (3 copies)

I declare under penalty of perjury that the foregoing is true and correct.

Executed on OCTOBER(( 1979, at HUNTI

D. A. Standefer

41 COPIES TO U. S. SUPREME COURT, WASHINGTON, D. C. 20543

with Check No. 2392 of Michael Pancer in the amount of $100

—as docket fee—attached to the original copy thereof.

(Sent via Express Mail.)

Dean-Standefer, 326% Main St., Huntington Beach, Ca. 92648

(714) 536-7161