Petition — Janelle v. United States

ee Supreme Court, U.S.)

4 FILED

NOV 12 1979

IN THE

MICHABL ROBAK, JR. CLERR

SUPREME COURT OF THE UNITED STATES

: PO NTT ome wt

OCTOBER TERM, 1979

vo. 197802

LAURENCE ARTHUR JANELLE,

PETITIONER,

vs.

UNITED STATES OF AMERICA,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SAVITZ & McCABE

Michael J. McCabe, Esq.

108 Ivy Street

San Diego, CA 92101

(714) 231-1181

Attorney for Petitioner

LAURENCE ARTHUR JANELLE

TOPICAL INDEX

(page) =| TABLE OF AUTHORITIES

CASES eeseeoeaoeeeeveeeeeeeeeeeeeeeeeeeeeesee ii ee ,

PETITION FOR WRIT OF CERTIORARI TO | United States v. Davis,

THE UNITED STATES COURT OF APPEALS . .

FOR THE NINTH CIRCUIT .......eeceeeeee : eee Fae tee Cee) 2775) eee eans) Se ©

OPINION BELOW ...cccccccccecccccercveces

JURISDICTION ..ccccccccvcccrcccccvcccses

QUESTIONS PRESENTED FOR REVIEW ......-e-

CONSTITUTIONAL PROVISION INVOLVED ......

STATUTORY PROVISIONS INVOLVED .........6.

STATEMENT OF THE CASE ..ccccccccccccccce

REASONS FOR THE WRIT ...cccccccccccccecs

THE STATE OF THE LAW REGARDING THE FOURTH

AMENDMENT AND AIRPORTS IS FRAGMENTED

AND INCONSISTENT eeeeeeeeneeee0neeeeeee2 8 @ 3

THIS COURT HAS NEVER DECIDED AN AIRPORT

SEARCH QUESTION eeoeeereeee eee ee eeeeeeee 1d

THIS CASE SHOULD BE REMANDED FOR A

FACTUAL DETERMINATION AS TO WHETHER

WESTERN AIRLINES DID ADOPT AND IMPLEMENT

SECURITY MEASURES PURSUANT TO .14 C.F.R.

SECTION 121.538 (c) (3) w.ccccccccccccece 1h

CONCLUSION eeeeee#*eee#eecseseestseee@ee#eee#ees8s#s#etee#ee#e#8teeee#eee#e#*# 18

PROG CF MEVICE fv kck ba dcade <éeee eee 16

APPENDIX "A"

MEMORANDUM DECISION OF COURT OF APPEALS

FOR THE NINTH CIRCUIT 2... cccccccccees 1?

United States v. Fannon,

556 7.26 S961 (Sth Cir. 1977). cess 7

United States v. Gumerlock and Fannon,

So oie eee eee Cis. 1979) sc cawee 6,57

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

No.

LAURENCE ARTHUR JANELLE,

‘a

PETITIONER,

vs.

UNITED STATES OF AMERICA,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

The Petitioner, LAURENCE ARTHUR JANELLE,

respectfully prays that a Writ of Certiorari

issue to review the Opinion of the United States

Court of Appeals for the Ninth Circuit entered

on June l, 1979.

PLOT BAIR Ot

OPINION BELOW

On June l, 1979, a three-judge panel of

the United States Court of Appeals for the Ninth

Circuit issued an Opinion affirming the District

Court's Denial of Petitioner's Motion to Suppress

Evidence (Appendix "A"). The Petitioner sub-

sequently filed a Petition for Rehearing with a

suggestion for rehearing en banc. Said Petition

was denied.

JURISDICTION

On June l, 1979, the Ninth Circuit Court of

Appeals entered a Judgment affirming the Order

of the District Court denying Petitioner's Motion

to suppress Evidence. The jurisdiction of this

Court is invoked under Title 28, United States

Code, Section 1254(1).

QUESTIONS PRESENTED FOR REVIEW

1. Whether the provisions of the Air Trans-

portation Security Act of 1974 subjected air

freight shipments to the government's adminis-

trative scheme to strengthen the security of

air transportation, and thus whether the searches

in the instant case were subject to the Fourth

Amendment of the United States Constitution.

2. Whether this case should be remanded to

the District Court for a factual determination

as to whether or not Western Airlines did, in

fact, adopt and implement security procedures

with respect to cargo, pursuant to 14 C.F.R.

Section 121.538(c) (3).

CONSTITUTIONAL PROVISION INVOLVED

United States Constitution, Amendment IV:

The right of the people to be secure in

their persons, houses, papers, and effects,

against unreasonable searches, and

seizures, shall not be violated ....

STATUTORY PROVISIONS INVOLVED

a) 49 U.S.C. Section 15ll

a) The Administrator shall, by regulation,

require any air carrier, intrastate air

carrier, or foreign air carrier, to refuse

to transport --

(1) any person who does not consent

to a search of his person, as pre-

scribed in section 1356(a) of this

title, to determine whether he is

unlawfully carrying a dangerous

weapon, explosive, or other des-

tructive substance, or

(2) any property of any person who

does not consent to a search or

inspection of such property to

determine whether it unlawfully con-

tains a dangerous weapon, explosive,

or other destructive substance.

Subject to reasonable rules and

regulations prescribed by the Ad-

ministrator, any such carrier may

also refuse transportation of a

passenger or property when, in the

opinion of the carrier, such trans-

portation would or might be inimical

to safety of flight.

Section 121.538 Aircraft Security

Se

(b) each certificate holder shall,

before February 6, 1972, adopt and

put into use a screening system,

acceptable to the Administrator,

that is designed to prevent or deter

the carriage aboard its aircraft of

any explosive or incediary device or

weapon in carry-on baggage or on or

about the persons of passengers,

except as provided in Section 121.585.

Each certificate holder shall immedi-

ately adopt and put into use its

security program prescribed in

paragraph (c) of this section.

(c) Each certificate holder shall prepare

in writing and submit for approval by the

Administrator its security program includ-

ing the screening system prescribed in

paragraph (b) of this section, and showing

the procedures, facilities, or a combin-

ation thereof, that it uses or intends to

use to support that program and that are

designed to --

(1) Prevent or deter unauthorized

access to its aircraft;

(2) Assure that baggage is

checked in by a responsible agent or

representative of the certificate

holder;

(3) Prevent cargo and checked

baggage from being loaded aboard its

aircraft unless handled in accordance

with the certificate holder's security

procedures; and

(4) Assure that only persons

authorized under Section 121.585 (a)

are permitted to have on or about

their persons or property a deadly

or dangerous weapon accessible to

them while aboard any of its aircraft.

c) Section 121.538 Aircraft Security.

2 2 282 &¢ @ @ 8 @ 2 42-2 8.28 0 SS. SD

(k) Each certificate holder shall refuse

to transport --

(1) Any person who does not

consent to a search of his person

5.

d)

in accordance with the screening

system prescribed by paragraph (b)

of this section; and

(2) Any property of any person

who does not consent to a search

or inspection of that property

in accordance with the screening

system prescribed by paragraph (b)

of this section.

Section 841 of Title 21, United States Code,

provides in part as follows:

"... it shall be unlawful for any person

knowingly or intentionally --

"to ... possess with intent to .... dis-

tribute, ... a controlled substance; ...."

Section 960 and 963 of Title 21, United States

Code, provide in part as follows:

"Any person who attempts or conspires to

commit any offense defined in this title

----" is guilty of an offense.

STATEMENT OF THE CASE

On October 26, 1977, Victor Moran was em-

ployed as a freight agent by Western Airlines,

in Miami, Florida. On this date, an unknown

male, identifying himself as Tim Spencer,

presented Moran with a package which was to be

air shipped to San Diego, California. Spencer

was visibly nervous, and when asked his name,

appeared to think twice before responding. When

asked about the contents of the package, Spencer

claimed it contained photographs. The package

was addressed to Laurence A. Janelle, 426 Fourth

Avenue, Encinitas, California. (Clerk's Record,

. 35). 1/

After the package was accepted by Moran,

Spencer departed from the freight office. Moran

then took the package to his supervisor, Terry

Wood. Moran related the above information to

Wood. (C.R. p. 36). Additionally, Moran told

Wood that Spencer "fit the profile". (Reporter's

Transcript, p. 6) .2/ This "profile" is estab-

1/ Clerk's Record is hereinafter referred to

oo “CC...

2/ Reporter's Transcript is hereinafter

referred to as "R.T.".

lished by Western Airlines pursuant to FAA

regulations. (R.T. 10). Wood described the

profile as "an unknown shipper that comes up

to us and wants to ship something somewhere,

and he pays cash for it, and we have never

seen him before." (R.T. p. 6). This would

be an individual as opposed to a commercial

shipper. (R.T. p. 6).

Wood knew that a Frontier jet had been

hijacked a week earlier. He also knew that a

bomb threat had been made at the airport two

(2) days earlier. (R.T. pp. 8, 12).

Because Wood was apprehensive that the

package might contain an explosive device, he

cautiously unwrapped it and discovered two

clear, plastic bags containing a white powder.

Wood then called the Dade County Public Safety

Department. (C.R. p. 36).

The powder was found to be cocaine. The

package was resealed and shipped to San Diego,

where appellant Laurence Janelle was arrested

after picking up the package. (C.R. p. 37).

There was neither an arrest warrant nor a

search warrant for the package in which the

contraband was found. fs a |

REASONS FOR GRANTING THE WRIT

The resolution of the question of whether

the Air Transportation Security Act of 1974,

and subsequent legislation, subjected air

freight shipments to the government's admin-

istrative scheme to strengthen the security of

air transportation is one of critical consti-

tutional importance inasmuch as it requires a

definitive ruling as to the scope of the pro-

tection afforded by the Fourth Amendment of

the United States Constitution to airports.

THE STATE OF THE LAW REGARDING

THE FOURTH AMENDMENT AND AIRPORTS

IS FRAGMENTED AND INCONSISTENT

The case of United States v. Davis, 482

F.2d 893 (9th Cir. 1973) decided that searches

of airline passengers and their carry-on

baggage were conducted by the airlines pursuant

to federal legislation, and as a part of the

general regulatory scheme to strengthen the

security of air transportation. The congress-

ional intent behind the amendments and regulations

which have been passed and implemented under

and subsequent to the Air transportation Security

Act, and specifically 14 C.F.R. Section 121.538(c)

raise valid issues as to whether or not actions

of an airline taken pursuant to those regulations

would create a sufficient nexus of government

involvement to bring a search of air freight

items within the purview of United States v.

Davis, supra, and thus within the Fourth Amend-

ment. It is submitted that the Opinion in

United States v. Gumerlock and Fannon, 590 F.2d

794 (9th Cir. 1979) and the Opinion in the

instant case is in conflict with the Ninth

10.

Circuit Opinion in United States v. Davis, supra.

THIS COURT HAS NEVER DECIDED

AN AIRPORT SEARCH QUESTION

United States v. Davis, supra, holds

searches of passenger and carry-on luggage are

subject to the strictures of the Fourth

Amendment. This conclusion is based upon the

extensive federal involvement in air transpor-

tation security. This decision has been followed

by several other circuits.

The Opinion in Gumerlock and Fannon, supra,

and in the instant case carves an exception to

the Davis rule for air freight that is unwarrant-

ed by the legislative history and logic. This

Opinion, by failing to follow Davis, effectively

places the Ninth Circuit at odds with several

other circuits.

THIS CASE SHOULD BE REMANDED

FOR A FACTUAL DETERMINATION AS

TO WHETHER WESTERN AIRLINES DID

ADOPT AND IMPLEMENT SECURITY MEASURES

PURSUANT TO 14 C.F.R. SECTION 121.538(c) (3)

In United States v. Gumerlock and Fannon,

ll.

supra, the Court of Appeals en banc concluded

that Congress did not intend to require that air

freight shipmerts be subjected to the security

screening process mandated by government for

passengers and their carry-on possessions. In

particular the two packages involved in Gumer-

lock were not examined as part of a government

mandated security program. 590 F.2d 794 at 796.

This conclusion was based primarily on

the fact that there was nothing in the record

to indicate whether United Airlines in fact

adopted any security procedures with respect

to cargo, or, if it did, whether the procedures

include inspections approved by the adminis-

trator. United States v. Gumerlock and Fannon,

supra, at 799.

By contrast, the record made in the District

Court in the instant case demonstrates that the

reason the package submitted by the sender was

subjected to search by Western Airlines personnel

12.

at Miami International Airport was that the

sender fit the profile of a suspicious individual

which was established by Western Airlines in

accordance with the FAA regulations governing

the shipment of goods by common carrier.

It is true that the record does not show

whether or not inspections were approved by

the Administrator. However, at the time of

the motion to suppress evidence in the District

Court, United States v. Fannon, 556 F.2d 961

(9th Cir. 1977), was the law of the Circuit and

the inquiry of the District Court focused not

on whether the search constituted governmental

action, but whether the search was reasonable.

Therefore, it is Petitioner's contention

that:

1. The requisite showing of governmental

involvement in the search has been made.

2. Even if the Court concludes that it

13.

is Petitioner's burden to show approval by the

administrator of the FAA, the case should be

remanded to the District Court to allow Petitioner

to make such a showing.

At the time of the motion to suppress

evidence, counsel had no reason to anticipate

what the law of the Circuit would become in the

future. Trial counsel must necessarily be

directed by the law of the Circuit as it exists,

and must be directed by the Inquiries of the

Court.

It is submitted that in the instant case

the record was developed as far as reasonably

possible.

Rejection of this appeal based on failure

to adequately develop the record, under chese

circumstances, constitutes a denial of the

basic concepts of fairness and procedural due

process. Fortunately, this situation can be

remedied by a remand to the District Court for

a rehearing.

14.

PROOF OF SERVICE

CONCLUSION

I, Michael J. McCabe, hereby declare:

That I am a citizen of the United States

of America, over the age of eighteen years, and

a Writ of Certiorari issue to review the judgment not a party to the within action.

That my business address is 108 Ivy Street,

San Diego, California.

That on November , 1979, I placed an

Respectfully submitted, envelope with postage prepaid, a copy’ of

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

; e STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Kee 4 7, L. f to the following:

: (“Ta - Solicitor General of the United States

Honorable Wade McCree

Department of Justice

Washington, D.C. 20430

For the foregoing reasons, the Petitioner,

Laurence Arthur Janelle, respectfully requests

of the Ninth Circuit Court of Appeals.

Dated: November 14, 1979

SAVITZ & MCCABE

Michael 3. McCabe

Attorneys for

Petitioner

LAURENCE ARTHUR JANELLE I declare under penalty of perjury that the

foregoing is true and correct. Executed on

this day of November, 1979, at San Diego,

California.

< —y le y, ae 5 /

Wek h / j / . ie ahs

_

Michael a/ McCabe

15. 16.

Filed: June l, 1979

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 78-1837

-ve~ MEMORANDUM

LAURENCE ARTHUR JANELLE,

Defendant-Appellant.

eee ee eee ee ee

Appeal from the United States District Court

for the Southern District of California

Before: TRASK and WALLACE, Circuit Judges,

and HOFFMAN,* District Judges

Janelle appeals from his conviction for

conspiracy to possess and possession of

cocaine with intent to distribute, in vio-

lation of 21 U.S.C. §846 and 841l(a) (1).

* The Honorable Walter E. Hoffman, United

States District Judge, Eastern District of

Virginia, sitting by designation.

=-j-

APPENDIX "A"

The only issue he raises pertains to whether

or not an inspection of a consigned package

by air freight employee constitutes govern-

ment action so as to bring the search within

the purview of the Fourth Amendment.

We deferred decision of this case until

our court decided en banc United States v.

Gumerlock and Fannon, 590 F.2d 794 (9th Cir.

1979). With the guidance of that case, we

now conclude that government action was not

involved and, therefore, we do not need to

determine whether the warrantless search was

reasonable.

Janelle contends that pursuant to 14

C.F.R. Section 121.538(c) (1976), the FAA

required the carrier to promulgate a security

program and a part of the resulting program

was a description, known as a "profile", of

a suspicious individual. Janelle contends

that "since the record in the instant case

clearly demonstrates that the sender of the

package in question was suspected because he i by the administrator. That Western Airlines

'fit the profile' of a suspicious individual adopted a security program pursuant to a

promulgated as a result of the regulation," regulation is a far cry from the administrator

the required governmental involvement is SPPlOvang SASPCSLsONs

demonstrated. AFFIRMED.

As we read United States v. Gumerlock

and Fannon, we do not agree. There we stated

"This provision does not require carriers |

to adopt any particular security procedures

with respect to cargo; specifically, it does

not require inspection of cargo. There is

nothing in the record to indicate whether

United Airlines in fact adopted any security

procedures with respect to cargo, or, if it

did, whether the procedures include inspec-

tions approved by the administrator." Id.

at 799 (footnotes omitted). Here we have

essentially the same situation. The reg-

ulation does not require inspection of cargo. .

There is nothing in the record to indicate

that any inspection procedures were approved