# Petition — Ellis v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 445 U.S. 905

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1598%3A1. Public record. Not legal advice.