# Petition — Bowman v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1119%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 444 U.S. 967 ## Text | } 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 i 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 EE ee EIS SEE LSS OPO CTE Constitutional Provisions and EE SS Oe eee eee eceecccces Reasons Why The Writ Should I EE EE IES The activity observed by the surveilling agents was insufficient to establish probable cause for the issuance of a search warrant for Petitioner’s residence .... EE EEE 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 > SheCcbier ars | 3 : | g i | : == 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1119%3A1. Public record. Not legal advice.