Petition — Ellis v. United States

i JAN 28 j990

SUPREME COURT OF THE L vcner mbosk. in coal

UNITED STATES OF AMERICA

NO... @ te 5l

OCTOBER TE

RICHARD LLOYD ELLIS,

Petitioner,

VS.

UNITED STATES,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROGER S. HANSON, Esq.

518 South Broadway

Santa Ana, California 92701

(714) 558-0921

Member of the Bar, United States

Supreme Court

Attorney for Petitioner

J. GALLAGHER — Printed Briefs (714) 835-6522

TOPICAL INDEX

PREAMBLE es

OPINION BELOW 2

JURISDICTION 2

QUESTIONS PRESENTED FOR REVIEW 3

U.S. CONSTITUTIONAL AMENDMENTS INVOLVED 7

STATEMENT OF THE CASE WITH FACTS

MATERIAL TO THE CONSIDERATION OF THE

QUESTIONS PRESENTED 8

ARGUMENT

I ASTOPPING OF A MOTOR VEHICLE AT GUN POINT

WITH A SUBSEQUENT HANDCUFPING OF THE

OCCUPANT OF THE VEHICLE CAN NOT BE

EQUATED WITH ANYTHING OTHER THAN AN

ARREST, FOR WHICH PROBABLE CAUSE

TO ARREST MUST BE AFFIRMATIVELY

DEMONSTRATED, United States v. Strickler, 490 2d

378 (9TH CIR. 1974), THE HOLDING OF THE

OCCUPANT AT GUN POINT FOR 35 TO 50

MINUTES TO AWAIT THE ARRIVAL OF OTHER

OFFICERS CONSTITUTES AN UNREASONABLE

DETENTION AND MUST CONSTITUTE A FULL

FLEDGED ARREST AND NOT SOME SORT OF

TEMPORARY DETENTION BASED ON A

FOUNDED SUSPICION. 12

Il PETITIONER WAS DENIED HIS SIXTH (6th)

AMENDMENT RIGHT OF CONFRONTATION

WHERE THE TRIAL COURT ERRONEOUSLY

APPROVED THE GOVERNMENT'S FAILURE

TO CALL THE FOUNDATIONAL EXPERTS TO

ESTABLISH THE ACCURACY OF RADAR

EQUIPMENT, 19

CONCLUSION 23

APPENDIX A 24 TABLE OF AUTHORITIES

PROOF OF SERVICE 28 Cases Page

Adams v. Williams

(1972) 407 U.S, 143, 92 S, Ct. 1921, 32 L. Ed, 2d 612 12

Chambers v. Maroney

399 U.S. 42, 15-18

Fernandez v, United States,

321 F. 2d 283, 286-87 (9th Cir, 1963). 16

Terry v. Ohio

(1968) 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 13

Whitely v, Warden Wyoming Penitentiary,

401 U.S, 560, 28 L. Ed, 306, 91 S, Ct, 1031, 5

U.S. v. Bates

533 F. 24 466, 468-69 (9th Cir, 1976) 15

U.S. v. Bugarin-Casas,

484 F, 2d 853 (9th Cir, 1973) 15.16

U.S. v, Cepeda-Penes,

577 F, 24 754 (1st Cir, 1978) 6,19,22

U.S. v. Coades,

549 F, 2d 1303, at 1305 (9th Cir, 1977) 14

U.S. v. Dioguardi,

428 F, 2d 1033 (2d Cir, 1970) 6,19,22

U.S. v. Laird

511 F, 2d 1039, 1040 (9th Cir, 1975) 16

U.S. v. Larkin,

510 F, 24 13, 14 (9th Cir, 1974) 17

U.S. v. Moreno Buelna,

524 F, 2d 1129, 1132 (9th Cir.) 15

iil

U.S. v. Oates,

560 F, 2d 45 (2d Cir. 1977)

U.S. v, Ojeda-Rodriguez,

502 F, 2d 560, 561 (9th Cir, 1974)

U.S. v, Portillo-Reyes,

529 F. 2d 844, 850 (9th Cir, 1975)

U.S, v, Rocha-Lopez

527 F, 2d 476, 478-79 (9th Cir, 1976)

U.S. V. Rodriguez-Alvardo

5010 F. 2d 1063, 1064 (9th Cir 1975)

U.S. v. Richards,

500 F. 24 1025, 1028-29 (9th Cir 1974)

U.S. v. Russell,

546 F, 2d 839, B41 (9th Cir. 1976)

U.S. v. Ruffin

575 2d 346 (2nd Cir, 1977)

U.S. v. Strickler,

490 F, 2d 378 (9th Cir 1974)

U.S. v. Thompson, Reeve, Law & Harris,

558 F. 2d 522, (9th Cir, 1972)

U.S. Constitution

FOURTH AMENDMENT

FIFTH AMENDMENT

SIXTH AMENDMENT

Code

28 U.S.C, 1254-D

Rules

FEDERAL RULES OF EVIDENCE 803-(6)(8)

SUPREME COURT RULE 23

iv

6,19,20.21

16

15

15

15

14

14,15

6,19,21

11,12,17

14,15

Page

SUPREME COURT OF THE UNITED STATES

October Term, 1979

RICHARD LLOYD ELLIS,

Petitioner,

vs.

UNITED STATES,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEAL

FOR THE NINTH CIRCUIT

TO THE HONORABLE WARREN E. BURGER,

CHIEF JUSTICE OF THE UNITED STATES,

AND TO

THE HONORABLE ASSOCIATE JUSTICES OF

THE UNITED STATES SUPREME COURT:

Comes now the petitioner, Richard Lloyd Ellis, by

his attorney Roger S. Hanson, member of the bar of

the United States Supreme Court, asking for a writ of

certiorari directed to the United States Court of Ap-

peals for the Ninth Circuit at San Francisco, Califor-

nia, to review that certain opinion, United States v.

Ellis, ™-F.2d_ (9th Cir. 1979), a copy of

which is herewith attached to this petition for cer-

tiorari.

Pursuant to Rule 23, Rules of the Supreme Court

of the United States, petitioners submit the following:

(a)

OPINION BELOW

The official report of the judgment herein sought

review is United States v. ee a

—______ (9th Cir. 1979), dated Dec. 26, 1979. A copy

of that opinion is attached as Appendix ‘‘A”’.

No petition for rehearing and suggestion for hear-

ing en banc was made to the U.S. 9th Circuit.

(b)

JURISDICTION

The grounds upon which the jurisdiction of this

Honorable Court is invoked are:

(i) the opinion affirming petitioner's conviction

was entered December 26, 1979.

(ii) no rehearing and Suggestion for hearing en

banc was made to the U.S. 9th Circuit.

(iii) the statutory provision conferring jurisdiction

on this Honorable Court is 28 U.S.C. 1254 (d):

‘‘Cases in the courts of appeals may be reviewed

by the Supreme Court by the following

methods:(d) By Writ of Certiorari granted upon

the petition of any party to any civil or criminal

case, before or after rendition of judgement or

decree...”

Jurisdiction of this Honorable Court is further in-

voked because:

The U.S. Court of Appeals for the 9th Circuit has

erroneously extended the concept of ‘functional

equivalent of the border” to include a stop of land

vehicles some 400 miles from the U.S.—Mexican

border in Kern County, California, where said land

vehicles have been seen to merely contact an aircraft

which has never been known to have ever landed in

Mexico

(c)

QUESTIONS PRESENTED FOR REVIEW

ISSUES AND QUESTIONS

ON APPEAL

(1.) Given the following facts, can the halting and

arrest at gun point of the occupant of a van be

justified as a so-called Customs Search?:

(a) An airplane is noted approaching the United

States at 100 knots, the initial observation of the

plane being some 27 miles South of the United States-

Mexican Border.

(b) Nothing suggested or supported that the air-

craft had ever landed or contacted the Republic of

Mexico, and no evidence whatsoever exists to support

that it then contained contraband.

(c) The plane was flying without lights and landed

3

at a dirt airtstrip used by crop dusters in Kings Coun-

ty, California.

(d) As the plane landed, it was observed by a

United States Customs plane flying overhead that

had been summoned to follow it on its Northernly

course toward California; two (2) vans approached the

plane and remained some 15 minutes and tho airplane

took off and the vans left. Nothing was seen to have

been transferred from the plane to the vans.

(e) The situs of aircraft-van contact was some 400

miles from Mexico and some 100 miles inland from the

Pacific Ocean.

(f) No evidence existed to indicate that two (2)

vans had ever been close to or near the United States-

Mexican Border, and no evidence existed to show that

they contained contraband when halted and the

drivers arrested at gun point.

Thus, where nothing indicates that the two (2)

vans have been close to the Mexican-United States

Border, can there be a valid non-probable cause

“Customs Search” on the mere fact there has been an

observed, within the United States, ground contact

between the vans and an airplane which has been

observed in the air over Mexico, but which had no

observable contact with Mexico?

2. Given the foregoing facts, was there probable

cause to effect an arrest of the occupant of a van on

the reasonable belief that it was then a respository of

some sort of contraband?

3. Did the detention of the arrestee Ellis, peti-

tioner herein constitute unreasonable conduct on the

part of the state law enforcement, thus making

unreasonable the search of the camper van conducted

some 35 to 50 minutes later?

4. Did the arrest at gun point of Petitioner Ellis

constitute an arrest that must be tested by probable

cause rather than an investigatory stop based on a

founded suspicion that the van then contained contra-

band?

5. Did the arrest of Petitioner Ellis violate the

general reasoning of Whitely v. Warden Wyoming

Penitentiary, 401 U.S. 560, 28 L. Ed. 2d 306, 91 S. Ct.

1031, inasmuch as Kern County Deputy Sheriff

Casillas had no personal information whatsoever con-

cerning the nature of the crime that Petitioner Ellis

had allegedly committed nor did he have information

to support a belief that the van then contained contra-

band?

6. Where Deputy Sheriff Casillas testified under

oath initially that he did not “arrest Petitioner Ellis

for possession of marijuana,” merely detaining him

at gun point for 35 to 50 minutes until back up

Sheriffs and a United States Customs Agent arrived

did he commit perjury when called by the United

States Attorney to later state that the van reeked

with marijuana smell, thus nullifying the integrity of

his entire testimony?

7. Can two (2) vans be stopped searched under a

5

theory of ‘Customs Search”’ where not one scintilla of

evidence existed to indicate that they had ever been

near, close to, or across the United States-Mexican

Border?

8. Can the United States Government establish

the accuracy of rader equipment without calling

experts familiar with the equipment, within the

meaning of United States v. Dioguardi, 428 F. 2d 1033

(2d Cir. 1970); United States v. Cepeda-Penes, 577 F.

2d 754 (1st Cir. 1978); United States v. Oates, 560 F.

2d 45 (2d Cir. 1977); United States v. Ruffin, 575 2d

346 (2nd Cir. 1977), where defense challenge is made to

the accuracy of the equipment in establishing that an

airplane is sighted 27 miles South of the United

States-Mexican Border, and where, were it not

established that said airplane had been across the

Border, (although solely airborne, never on the

ground) there could be no legitmate United States

Customs interest or concern in the aircraft, within the

Confrontation Clause of the United States

Constitution’s Sixth (6th) Amendment?

9. Whether the United States Customs Service

can attempt to deputize Kern County Sheriffs some

300 miles from the United States-Mexican Border to

act as surrogate customs officers to arrest and detain

Petitioner Ellis for 45 minutes-lhour while Customs

Officers arrived on the scene?

(d)

UNITED STATES CONSTITUTIONAL

AMENDMENTS INVOLVED

FOURTH AMENDMENT

AMENDMENT IV—SEARCHES AND SEIZURES

The right of the people to be secure in 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.

FIFTH AMENDMENT

AMENDMENT V—CAPITAL CRIMES; DOUBLE

JEOPARDY; SELF-INCRIMINATION: DUE

PROCESS; JUST COMPENSATION FOR

PROPERTY

No person snall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand J ury, except in cases arising in

the land or naval forces, or in the Militia, when in

actual service in time of War or public danger; nor

shall any person be subject for the same offense to be

twice put in jeopardy of life or limb; nor shall be

compelled in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or property,

without due process of law: nor shall private property

be taken for public use, without just compensation.

7

SIXTH AMENDMENT

AMENDMENT VI—JURY TRIAL FOR CRIMES,

AND PROCEDURAL RIGHTS

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an

impartial jury of the State and district wherein the

crime shall have been committed, which district shall

have been previously ascertained by law, and to be

informed of the nature and cause of the accusation: to

be confronted with the witnesses against him; to have

compulsory process for obtaining witnesses in his

favor, and to have the Assistance of Counsel for his

defense.

(e)

STATEMENT OF THE CASE WITH FACTS

MATERIAL TO THE CONSIDERATION OF THE

QUESTIONS PRESENTED

SUMMARY STATEMENT OF THE CASE

Rodney Moore, a radar operator at the “Los

Angeles’ Center in Lancaster, California, detected a

moving aircraft some 27 miles south of the United

States-Mexican border heading north toward

California. Being employed by the United States

Customs Service, he radioed his contact to a United

States Customs plane, ‘‘Lema 221”, airborne in the

Palm Springs-Banning area. Following vector

methods, the customs plane was able to locate and

8

make contact within a few miles of the unknown craft,

and the two (2) planes proceeded northerly into the

United States where the unknown craft was observed

to land on an unlighted airstrip in Kings County,

California. Two land vehicles were seen, via infra red

equipment, to meet the airplane and remain for some

fifteen (15) minutes, and the plane then took off and

the vehicles departed. Nothing was observed to be

transferred from the plane to the ground vehicles. No

information existed to support that the plane

contained contraband, nor was there any evidence

that it had ever landed in Mexico. It entered the

United States without lights and in violation of failing

to stop and check in with United States Customs, yet

nothing existed to prove that its lights were not

malfunctioning when it was flying across the border.

By this time several different state law

enforcement groups were alerted concerning the

scenario, including the California Highway Patrol, the

Kern County Sheriffs, and the Kings County Sheriffs,

as well as United States Customs Officers from as far

away as San Francisco; the latter, one Gould,

travelled at high speed via car from San Francisco to

Fresno to participate in the investigation.

Via airborne customs plane, the ground-air radio

contact was continued, and observations were relayed

to the ground vehicles of various law enforcement

groups.

Petitioner ELLIS and Co-Defendant

TARKINGTON were the drivers of the two (2) land

vehicles felt to have been the ones who had met the

aircraft when it had landed in Kings

County,California.

Via radio, one Casillas, a King County Deputy

Sheriff, was ordered to halt both vehicles, although

Casillas did not know then any concrete information

which would lead him to believe that the drivers had

committed a felony or any articuable felonies. He

halted the vehicle driven by Petitioner ELLIS at gun

point, ordered ELLIS from the vehicle, handcuffed

him and locked ELLIS in his Kings County Sheriff

vehicle until his commanding Sergeant arrived fifteen

(15) minutes later. The two (2) sheriffs then awaited

another twenty(20) minutes to one-half (1/2) hour

while United States Customs Officer Gould arrived.

During this entire 30-50 minute detention, ELLIS was

never literally ‘‘arrested”’ for the officers then present

believed that they did not have probable cause to

arrest him. Anachronistically, and belatedly, upon

recall, Casillas claimed that he, Casillas, could smell a

strong and permeating aroma of marijuana emanating

from ELLIS’ vehicle. This highly unlikely story was

juxtaposed upon his earlier statements at the

suppression hearing that he felt that he did not have

probable cause to arrest ELLIS. Over the vehement

objections of Petitioner ELLIS, the camper was

entered and searched and thirty-five (35) bags of

10

marijuana were located within it.

During the halt of Petitioner ELLIS’ vehicle, the

companion vehicle driven by Co-Defendant

Tarkington escaped and was not halted until much

later within the City limits of the Village of Wasco,

California. Contained therein was marijuana.

Co-Defendant Tarkington entered a Plea of Guilty

' and was sentenced to a term of probation.

Petitioner ELLIS submitted his case on the

tra: script developed at the Suppression Motion, was

found Guilty, and took a timely Appeal to the U.S.

Ninth Circuit.

(f)

ARGUMENT

I

A’ STOPPING OF A MOTOR VEHICLE AT

GUN POINT WITH A SUBSEQUENT

HANDCUFFING OF THE OCCUPANT OF

THE VEHICLE CAN NOT BE EQUATED

WITH ANYTHING OTHER THAN AN

ARREST, FOR WHICH PROBABLE CAUSE

TO ARREST MUST BE AFFIRMATIVELY

DEMONSTRATED. UNITED STATES V.

STRICKLER, 490 F. 2d 378 (9TH CIR. 1974);

THE HOLDING OF THE OCCUPANT AT

GUN POINT FOR 35 TO 50 MINUTES TO

AWAIT THE ARRIVAL OF OTHER

OFFICERS CONSTITUTES AN

11

ee

UNREASONABLE DETENTION AND MUST

CONSTITUTE A FULL-FLEDGED ARREST

AND NOT SOME SORT OF TEMPORARY

DETENTION BASED ON A FOUNDED

SUSPICION.

In United States v. Strickler, 490 F. 2d 378 (9th Cir.

1974) the U.S. 9th Circuit held at pages 379-380 that

the halting of a land vehicle at gun point constitutes

arrest of the occupants rather than a temporary stop

for a brief investigation, and, indeed, many federal

cases, exemplified by United States v. Strickler, 490

F. 2d 378, 379-380 (9th Cir. 1974) clearly provides that

the halting of a vehicle or aircraft at gun point

constitutes a full-fledged arrest for which probable

cause for arrest must be demonstrated rather than

some sort of temporary detention stop for brief

interrorgation of the persons temporarily halted. As

the Ninth (9th) Circuit held in Strickler, supra, at 379:

“In Adams v. Williams (1972) 407 U.S. 143, 92 S.

Ct. 1921, 32 L. Ed. 2d 612, the Supreme Court

upheld the seizure of the occupant of a parked car

based on less than probable cause.!: The Court

1. To decide the case a bench, we need not prescribe precisely the point

at which police action which detains a suspect ceases to be a nonarrest

seizure and becomes an arrest; for we simply cannot equate an armed

approach to a surrounded vehicle whose occupants have been commanded

to raise their hands with the “brief stop of a suspicious individual in order

to determine his identity or to maintain the statis quo momentarily while

obtaining more information” which was authorized in Williams. (407 U.S.

at 146, 92 S. Ct. 1921, 32 L. Ed. 2d 612.) The restriction of Stricklers

“liberty of movement” was complete when he was encircled by the police

and contronted with official orders made at gunpoint.

12

os

thus made explicit what had been merely implied

in Terry v. Ohio (1968) 392 U.S. 1, 88 S. Ct. 1868,

20 L. Ed. 2d 889-forcible street encounters may be

intiated by the police if ‘‘reasonable’’ within the

meaning of the Fourth Amendment.?: The

Supreme Court, however also made it clear that

the propriety of some forms of police conduct,

even though they may be labeled ‘‘stops’’ or

“Investigory detentions’’ by the police, would

continue to be evaluated under a probable cause

standard. (See 407 U.S. at 145-146, 92 S. Ct. 1921,

32 L. Ed. 2d 612.)

As in Strickler, supra, the Kern County Sheriff’s

Office has no previous knowledge that some sort of

drug transactions had occurred on the day in

question; no description of an airplane, no description

of some sort of ground vehicle meeting it, no

description of the persons involved. But it is

abundantly clear that suspicion by the police that

certain behavior equally commensurate with

legitimate activity is seen as illegitimate behavior

does not supply the missing ingredient to ripen into

and arrest situation. Strickler, supra, provides at 380:

2. The constitutionality of the police conduct. therefore, depends upon

whether at the moment the police surrounded Strickler's automobile and

leveled a gun at him, the facts and circumstances within their knowledge

and of which they had reasonably trustworthy information were sufficient

to warrant a prudent man in believeing that Strickler had committed or

was committing a criminal offense. (See Beck v. Ohio (1964) 379 U.S. 89,

91,85 S. Ct. 223, 13 L. Ed. 2d 142: Henry v. United States, supra, 361 U.S.

al 102, 80'S. Ct. 168, 4 L. Ed. 2d 134,)"

is

“The government failed to carry its burden of

proving that probable cause to arrest existed.

Before his arrest, the police had no information

which implicated Strickler in any way in the

cocaine negotiations.”

It is clear, however, that if the defendants do in

fact seek to escape, the pulling of guns to attempt to

halt an actually occurring escape does not convert a

detention stop into an arrest situation. As noted by

the United States Ninth (9th) Circuit in U.S.A. v.

Thompson, Reeve, Law & Harris, 558 F.2d. 522, (9th

Cir. 1977):

(1,2) A police officer attempting to make an

investigatory detention may properly display

some force when it becomes apparent that an

individual will not otherwise comply with his

request to stop, and the use of such force does not

transform a. proper stop into an arrest. United

States v. Richards, 500 F. 2d 1025, 1028-29 (9th

Cir. 1974), cert. denied, 420 U.S. 924, 95 S. Ct.

1118, 43 L. Ed. 2d 393 (1975). See United States

v. Coades, 549 F. 2d 1303, at 1305 (9th Cir. 1977);

United States v. Russell, 546 F. 2d 839, 841 (9th

Cir. 1976) (Wright J. concurring)’.

Of course, assuming that the detention is valid

(which of course it is not here because of being

accompanied by the use of drawn weapons) a smell of

marijuana when the officer is proximate to the aircraft

14

would support probable cause to arrest and/or search

of the vehicle. Chambers v. Maroney, 399 U.S. 42. The

arrest situation here occurred instantly with the use

of the gun against the vehicle driven by Petitioner

Ellis. As the Ninth (9th) Circuit has stated in U.S. v.

Thompson, Reeved, Law & Harris, 558 F. 2d 522 (9th

Cir. 1977) per Honorable Herbert Y.C. Choy:

‘*(3,4) After a brief period during which appellants

were questioned, the officers detected a strong

odor of marijuana coming from one of the vans.

We have repeatedly held that, ‘‘If after valid

investigatory stop probable cause arises, the

search may then be made,”’ United States v.

Bugarin-Casas, 484 F. 2d 853 (9th Cir. 1973), cert.

denied, 414 U.S. 1136, 94 S. Ct. 881, 38 L. Ed. 2d

762 (1974). See e.g., United States v. Russell, 546

F. 2d 839, 840 (9th Cir. 1976); United States v.

Bates, 533 F. 2d 466, 468-69 (9th Cir. 1976);

United States v. Portillo-Reyes, 529 F. 2d 844,

850 (9th Cir. 1975), cert. denied, 429 U.S. 899, 97

S. Ct. 267, 50 L. Ed. 2d (1976); United States v.

Rocha-Lopez, 527 F. 2d 476, 478-79 (9th Cir. 1975)

cert. denied, 425 U.S. 977, 96 S. Ct. 2181, 48 L.

Ed. 2d 802 (1976); United States v. Moreno-

Buelna, 524 F. 2d 1129, 1132 (9th Cir.) (Chambers

J., concurring), cert. denied, 423 U.S. 1035, 96 S.

Ct. 570, 46 L. Ed. 2d 410 (1975); United States v.

Rodriguez-Alvardo, 5010 F. 2d 1063, 1064 (9th

Cir. 1975). And the detection of marijuana odor

15

OO _—_— EEE ey eee

emanating from a vehicle has been held sufficient

in such situation to give rise to probable cause to

search. See Russell, supra, at 840, United States

v. Laird, 511 F. 2d 1039, 1040 (9th Cir. 1975);

United States v. Ojeda-Rodriguez, 502 F. 2d 560.

561 (9th Cir. 1974) cert. denied, 420 U.S. 910, 95

S. Ct. 830, 42 L. Ed. 2d 839 (1975): Fernandez v.

United States, 321 F. 2d 283, 286-87 (9th Cir.

1963). (See footnote 1.) Appellants were placed

under arrest only after the marijuana was

discovered. "’

Of course U.S.A. v. Thompson, et. al., supra, is not

authority for assertion that probable cause to search

and arrest existed for the United States Ninth (9th)

Circuit at footnote 1 specifically declined resolution of

that matter upon their finding a pure detention stop:

“1. The district court also found that the officers

had probable cause to search the vans even before

the investigatory stop and the detection of

marijuana odor. Given our disposition of the

issues, we have no need to review that finding.”’

Of course, the pure detention stop must confine

itself to a non-violent, non-gun drawn interrogation

based solely on legitimate founded suspicion; if guns

are used, an arrest is indicated.

In United States v. Bugarin-Casas, 484 F. 2d 853

(9th Cir. 1973), the distinguishing point is well taken

and is well illustrated: the vehicle was halted on

“founded suspicion” that because it “rode low”’ in the

16

rear, and because it had a compartment in which

aliens might be concealed, it might then have an alien

concealed in it. When officers approached it, they saw

several packages via a floor board crack due to

displaced floor board panels. Because of the officers

intense experience with “kilo packages’”’ of marijuana,

an arrest was then affected based on the then

developed probable cause. But it is clear that the

initial halting was an ‘‘investigatory stop’’ and not an

arrest as made clear in the 9th Circuit by Strickler,

supra, and Ramos-Zaragosa, supra.

In United States v. Larkin, 510 F. 2d 13, 14 (9th

Cir. 1974) the Ninth Circuit per Judges Hufstedler

and Choy again affirmed that:

‘. . . a confrontation with a vehicular blockage

and drawn weapons cannot be equated with an

investigative detention. (United States v.

Strickler, (9th Cir. 1974) 490 F. 2d 378).”’

Plainly, if the halt of the vehicle driven by

Petitioner can not be justified under some sort of

‘Customs Stop’, then the scenario is a full-fledged

arrest for which probable cause to arrest must be

demonstrated; it can not be successfully argued that

the halting of the vehicle was some variance of a

‘‘temporary detention”’ for questioning because in the

9th Circuit the halting of a vehicle at gun point and

holding of the occupant under handcuff can not be

other than an arrest.

Plainly, not one thing was known about the

17

|

EE VEPSS FS Ce

subjuct aircraft-not that it had ever even landed in

Mexico, let alone that it contained andy sort of

contraband, although clearly surveilled from the air

with sophisticated infra-red detection equipment

which allowed a “light as day" view of the scene even

though midnight darkness prevailed, not one thing

was seen to have been transferred from the plane to

the ground equipment. Hence, not one scintilla of fact

existed to then show or Support that the two ground

vehicles then contained contraband to justify their

halt by state law enforcement officers, It is plain that

facts must exist to show that the vehicles then halted

then at that time, contained contraband. Chambers v.

Maroney, 399 U.S. 42, presents the type of factual

knowledge requisite to the seizure and search of a

vehicle on the Open highways, and Plainly such

knowledge was here zero. In short, no probable cause

existed to show that contraband then existed in the

vehicles to justify their stop at gun point and lengthy,

45 minutes to 1 hour detention of Petitioner to

attempt to categorize the ultimate search as some

extended Customs Search. This conviction, therefore,

must be reversed. This detention was clearly

unreasonable and vitiated the entire scenario,

ARGUMENT

III

PETITIONER WAS DENIED HIS SIXTH (6th)

AMENDMENT RIGHT OF

18

CONFRONTATION WHERE THE TRIAL

COURT ERRONEOUSLY APPROVED THE

GOVERNMENT'S FAILURE TO CALL THE

FOUNDATIONAL EXPERTS TO ESTABLISH

THE ACCURACY OF RADAR EQUIPMENT

WHICH PURPORTEDLY ALLOWED THE

GOVERNMENT TO ESTABLISH THAT AN

UNKNOWN AIRCRAFT HAD BEEN

SIGHTED SOME 27 MILES SOUTH OF THE

UNITED STATES-MEXICAN BORDER,

HEADING TOWARD THE UNITED STATES,

(ALTHOUGH NO EVIDENCE WAS

PROFFERED TO ESTABLISH THAT THE

AIRCRAFT HAD EVER LANDED IN

MEXICO), WHERE IT WAS CRITICAL FOR

THE GOVERMENT TO ATTEMPT TO

JUSTIFY A “CUSTOMS SEARCH" OF TWO

(2) VANS WHO HAD CONTACT WITH THE

AIRCRAFT SOME 300 MILES NORTH OF

THE UNITED STATES-MEXICAN BORDER,

WITHIN THE MEANING OF UNITED

STATES V. OATES, 560 F. 2D 45 (2D CIR.

1977); U.S. V. RUFFIN, 575 F. 2D 346 (2D CIR.

1977); U.S.A. V. DIOGUARDI, 428 F. 2p 1033

(2D CIR. 1970), AND U.S.A. V. CEPEDA.-

PENES, 577 F. 2D 754 (1ST CIR. 1978).

United States Circuit Court of Appeal authority

holds that the Government, when challenged as to the

accuracy of any scientific devices upon which it relies

19

for key substantial evidence, must provide the

foundation and basis for that scientific equipment and

devices. In United States v. Oates, 560 F. 2d 45 (2d

Cir. 1977), the court held at pages 72-73, fn. 30:

"’. . . However, a statement may not be admitted

under this exception unless the proponent of it

makes known to the adverse party sufficiently in

advance of the trial or hearing to provide the

adverse party with a fair opportunity to prepare

to meet it, his intention to offer the statement and

the particulars of it, including the name and

address of the declarant.

Although we stress that it was through no fault

of his own, the Assistant United States Attorney

did not in advance of trial inform his adversary of

the government's intention to offer the hearsay

statements of the chemist Weinberg.

Furthermore, our review of the relevant portions

of the transcript, see e.g., Tr. at 449, leaves the

distinct impression that prior to the calling of

witness Harrington to the stand, the defense was

unaware that the chemist’s report and worksheet

would be offered in lieu of the testimony of

Weinberg himself. In other words, not only did

the defense not recieve notice in advance of trial,

it did not recieve any notice at all until the actual

appearance of witness Harrington in the late

afternoon of the fourth day of trial...”

Plainly the Government must, per the foregoing

20

authority give advance notice of the fact that it

intends to present scientific data or information in

their case and must then present the requisite live

witnesses for confrontation or cross-examination once

challenge has been made to the accuracy of their

scientific information.

Moreover, apparently the Government was not

here taken by surprise as to the necessity of providing

the foundational evidence for its case in chief literally

commenced with the radar detection allegedly 27

miles South of the Mexican Border of the aircraft. and

the Government surely was placed on notice that its

case depended upon, at least, the showing that a

“Customs Search” would be attempted justification.

which necessitated proving that the radar equipment

was functioning properly and was capable of

accurately detecting aircraft ‘27 miles South of the

Border". Having failed to do this, Petitioner Ellis’

conviction must be reversed. In general, the

admission of the evidence of the radar equipment

foundation is governed by Federal Rules of

Evidence 803(6) and 803(8). Clearly, however, the

Government must satisfy the Confrontation Clause of

the Sixth (6th) Amendment in its proffering of the

foundational evidence and quite evidently here they

did not do so. The following authorities and argument

make plain that this conviction must be reversed.

United States v. Oates, 560 F. 2d 45 (2d Cir. 1977):

United States v. Ruffin, 575 F. 2d 346 (2dCir. 1977):

21

CONCLUSIONS

For each of the foregoing Reasons, Issues and

Questions on Appeal, and for the Points and

Authorities and Arguments submitted, the

Conviction of the Petitioner Richard Lloyd Ellis must

be reversed, and Certiorari should be granted.

Dated this 20th day of January, 1980 at Santa

Ana, California, 92701.

United States v. Dioguardi, 478 F. 2d 1033 (2d Cir

1970); and United States v. Cepeda-Penes, 577 F. 2d

754 (1st Cir. 1978).

Respectfully Submitted

Roger S. Hanson

Member of the Bar

U.S. Supreme Court

Attorney for Petitioner

Richard Lloyd Ellis

23

22

19 NO. 78-325

Fa 26. 49 O. 78-3251

DEY € MEMORANDUM

ov DEM PERL

AR at of

AICS cov

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA.

Plaintiff-Appellee,

RICHARD LLOYD ELLIS.

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of California

Before: MERRILL and SNEED, Circuit Judges,

and ZIRPOLI, District Judge.

Ellis was convicted of possession of marijuana

with intent to distribute, a violation of 21 U.S.C. §

841. He appeals, contending that the government

seized his marijuana in an illegal search.

24

At 9:30 p.m. on June 24, 1977, Rodney Moore, a

radar operator with the United States Customs

Service in Lancaster, California, spotted an airplane

about 25 miles south of the United States-Mexico

border flying north toward California. Moore

determined that the flight was unscheduled, and when

the plane did not land at the border to clear customs,

Moore notified a customs plane to follow the “target”

plane. The target plane flew without navigational

lights until it landed on a dirt airstrip in Kings County

at 12:15 a.m. Using infrared equipment, the customs

plane observed two pickup trucks without headlights

meet the plane. After about fifteen minutes the plane

took off without lights and the trucks departed. The

trucks drove about 10 m.p.h. without lights for more

than an hour, accelerating and turning on their lights

when they crossed an interstate highway.

The customs plane kept the trucks under constant

observation while other agents radioed Joe Casillas, a

Kings County deputy sheriff, to stop the trucks. He

stopped Ellis, but the other truck sped away. Casillas

drew his gun and held Ellis until his sergeant

handcuffed Ellis to await the arrival of customs agent

Charles Gould from San Francisco. When Gould

arrived twenty to thirty minutes later, he detected the

smell of marijuana around the truck and. shining his

flashlight through the back window, he saw several

large bales inside. Gould then searched the truck,

discovered 35 bales of marijuana, and arrested Ellis.

25

_ — — ~~ a

Gould could search Ellis’ truck without probable

cause for a customs violation if the customs agents

were reasonably certain that the target plane had

smuggled parcels across the border and someone had

placed those parcels in Ellis’ truck, even though the

transfer to Ellis’ truck took place in the United

States. United States v. Markham, 440 F. 2d 1119,

1121-22 (9th Cir. 1971), United States v. Weil. 432 F.

2d 1320, 1323 (9th Cir. 1970), cert. denied, 401 U.S.

947 (1971). Undoubtedly the agents could be

reasonably certain that a customs violation had

occurred in circumstances such as these.’ That the

transfer took place at the ‘functional equivalent” of

the border is further grounds for a search without

probable cause. Almeida-Sanchez v. United States,

413 U.S. 266 (1973).

Alternatively, we find that there was probable

cause for search, and that exigent circumstances

existed sufficient to justify proceeding without a

warrant. See United States v. Curtis, 562 F. 2d 1153

1. Ellis contends that the trial court erred in admitting Moore's testimony

because, having testified to radar sightings of the target plane. the government

failed to prove the accuracy of his radar equipment as it was required to do. He

argues that without Moore's testimony the government did not prove that the

target plane crossed the border. The government answers that Moore's

testimony was admissible as expert opinion that the plane crossed the border.

Fed. R. Evid. 702, and that radar sightings themselves need not be admissible,

Rule 703. The government was not required to prove that the plane in fact

crossed the border, only that the customs agents were reasonably certain that it

had. Therefore. Moore's testimony was admissible not for its truth but because it

illustrated the customs agents’ reasonable belief.

26

(9th Cir. 1977), cert. denied, 439 U.S. 910 (1978), and

United States v. Coplen, 541 F. 2d 211 (9th Cir. 1976),

cert. denied, 429 U.S. 1073 (1977).

Ellis contends that deputy sheriff Casillas

arrested him without probable cause, and that the

marijuana should be suppressed as the product of an

illegal arrest. This was not, however, a search incident

to arrest. Agent Gould conducted a valid search, and

the alleged illegal arrest does not make it not so.

Affirmed

PROOF OF SERVICE

State of California )

SS

County of Riverside )

I am a citizen of the United States and a resident of the county

aforesaid: I am over the age of 18 years and not a party to the within

entitled action; My business address is 1509 N. Main, Santa Ana.

California 92701.

I served the within PRTITION FOR WRIT OF CERTIORARI ON

the interested parties in said action, by placing a true copy in each of four

sealed envelopes with postage thereon fully prepaid, in the United

States mail at Santa Ana, California. addressed to:

U.S. Attorney

U.S. Solicitor General Eastern District of California

Department of Justice U.S. Court House

Washington, D.C. 20530 1130 “O” Street

Fresno, California

U.S. District J udge

Myron D. Crocker Federal Aviation Administration

U.S. Court House Attn: Frederick C. Woodruff. Esq.

1130 “O” Street 1500 Aviation Blvd.

Fresno. California 93721 Lawndale, California 9026]

I CERTIFY under penalty of perjury that the foregoing is true and

correct. Excuted on January 24, 1980 at Santa Ana, California

JACK GALLAGHER

28