Petition — Maskeny v. United States

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FILED

MAY 30 1980

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| MICHAEL ROLAK, JR., CLERN

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

—

No. “9-143g

DONALD GEORGE MASKENY, LEE DuRwoop HARVEY,

MARK TIMOTHY PERKINS, SIDNEY LARRY PERNELL,

BARRY WAYNE TOOMBS, JULIAN THOMAS PERNELL

AND Tony DARWIN,

>

Petitioners,

v.

UNITED STATES OF AMERICA,

Respondent.

SUPPLEMENTAL PETITION FOR A WRIT

OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

ARTHUR S. MEISNERE

1707 L Street, N.W.

Suite 560

Washington, D.C. 20036

(202) 296-0093

Washington, 0.C. + THIEL PRESS + (202) 638-4521

(7)

TABLE OF CONTENTS

Page

pe Se eC TTT ET TTT. i

ne SERED cu bebe eh ecrecesceseseseace 1

AEs IGE ob cee ieee twee cieesanececces 2

ADDITIONAL REASON FOR GRANTING THE

PETITION:

Intrusion By Law Enforcement Officers Into A Locked

Briefcase Without A Warrant Violates The Same

Fourth Amendment Principles As Invasion Of The

Privacy Of One’s Home Or Office ..........-2-222005- 4

CES bo oo aie 6 Obie eC eho ee cede bese es 9

TABLE OF AUTHORITIES

Cases: Page

Almeida-Sanchez v. United States, 413 U.S. 266 (1973) ..... 6

G.M. Leasing Corp. v. United States, 429 U.S. 338 (1975) .... 7

Payton v. New York, No. 78-5420, 48 U.S.L.W. 4375

Cn GN or an 3 1, 2, 6, 7, 8,9

United States v. Berry, 560 F.2d 861 (7th Cir. 1977) ....... 7

United States v. Brennan, 538 F.2d.711 (5th Cir. 1976),

cort. domtod, SEO UWS: BOGR CAOTE) nk cece ccses 5,6

United States v. Chadwick, 433 U.S. 1 (1977) ......... 6,7, 8

United States v. Jones, 352 F. Supp. 369 (S.D. Ga. 1972,

aff'd, 481 F.2d 1402 (Sth Cir. 1978) .. 2... cece eee 3

United States v. Tilton, 534 F.2d 1363 (9th Cir. 1976) ...... 5

United States v. Tussell, 441 F. Supp. 1092 (M.D. Pa.

SP ic he oy coc Are eae eee eke Gd eds Sh 5

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

No.

DONALD GEORGE MASKENY, LEE Durwoop HARVEY,

MARK TIMOTHY PERKINS, SMNEY LARRY PERNELL,

BARRY WAYNE TOOMBS, JULIAN THOMAS PERNELL,

AND Tony DARWIN,

Petitioners,

Vv.

UNITED STATES OF AMERICA,

Respondent.

SUPPLEMENTAL PETITION FOR A WRIT

OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The Petitioners, Donald George Maskeny, Lee

Durwood Harvey, Mark Timothy Perkins, Sidney Larry

Pernell, Barry Wayne Toombs, Julian Thomas Pernell

and Tony Darwin, bring the following new case law to

the Court’s attention. This Court’s decision in Payton v.

New York, No. 78-5420, 48 U.S.L.W. 4375 (April 15,

1980), requires further consideration of the search and

seizure issue addressed by the Court of Appeals in this

case.

2

The companion petitions of the petitioners filed

March 14 and March 31 are incorporated herein by

reference.

QUESTION PRESENTED

Whether this Court’s decision in Payton v. New York

requires the Court below to reverse its decision that the

search of the locked briefcase was properly admissible

evidence?

ADDITIONAL FACTS

After petitioners were arrested, handcuffed and given

their Miranda warnings. a Customs agent noticed a

briefcase on top of a counter in the terminal. None of

the petitioners identified the briefcase, choosing instead

to remain silent as was their prerogative under Miranda.

Because they were handcuffed, they had no opportunity

to remove anything from the briefcase. (T.160). Some

of the petitioners asked for a lawyer before the briefcase

was opened. (T.173). Nevertheless, the Customs agent

tried to open the briefcase, but discovered that it was

locked. (T.148). The Customs agent then gave the

briefcase to DEA agent Driver.

DEA agent Driver then took the briefcase and trans-

ported it to a Georgia Highway Patrol office in States-

boro, where it was opened. Neither Driver nor Customs

agent Nolan who opened the briefcase knew whether the

briefcase had been seen coming out of the airplane.

(T.184-185). Driver admitted that he was not sure if

he could have gotten a search warrant because, “We had

no probable cause.” (T.174).

The prosecution maintained that the briefcase was

opened to determine ownership. (T.183). Yet, the agent

3

who opened the briefcase said that he heard nothing

while opening the briefcase which indicated that the

officers were attempting to ascertain ownership. (T.183).

Although the prosecution argued that the briefcase

was abandoned and thus justifiably opened, the only

authority which the Customs agent gave for his entry

into the briefcase was his authority as a Customs Officer.

(T.183).

Once the briefcase was broken open, the officers

discovered aeronautical charts, Bahamian customs

papers and Bahamian immigration papers for petitioners

Maskeny, Perkins and Darwin. (T.526-527). These

items were the only evidence tending to connect peti-

tioners and the aircraft in a question outside of the

territorial limits of the United States.! The government

admitted that the contents of the briefcase were critical

to its case.?

1The standing of petitioners Harvey, Pernell, Toombs and

Pernell is based on United States v. Jones, 352 F. Supp. 369, 376

(S.D. bar 1972), aff’d 481 F.2d 1402 (5th Cir. 1973), where Chief

Judge Lawrence determined that where, in the course of a joint

trial, a defendant with standing successfully moves to suppress

evidence, suppression is required as to all defendants. Such a result

is mandated by the overwhelming prejudice that would result if

the evidence were inadmissible as to the aggrieved person but was

admissible as to his co-defendants.

2 “THE COURT: How critical are the contents to the

Government’s case?

“MR. McABEE: Your honor, the Government feels that

the contents of the case are critical in that they form the

basis for the importation count. The documents seized in

the briefcase indicate that the aircraft in question had been

out of the Country. That the aircraft in question had landed

some three hours before it came to Sylvania in Rock South,

Bahama Islands. The ...

“THE Court: I think you are mighty, mighty,

shakey ... [T.149]

4

ADDITIONAL REASON FOR GRANTING

THE PETITION

INTRUSION BY LAW ENFORCEMENT OFFI-

CERS INTO A LOCKED BRIEFCASE WITHOUT

A WARRANT VIOLATES THE SAME FOURTH

AMENDMENT PRINCIPLES AS INVASION OF

THE PRIVACY OF ONE’S HOME OR OFFICE.

Initially, it must be realized thatthe Court of Appeals’

adoption of a border search justification for the search

of the briefcase is questionable in light of the trial

judge’f reservation after he made the ruling. After Judge

Lawrence had admitted the briefcase and its contents

into evidence, he began to doubt the correctness of that

decision.?

3 “THE CouRT: ... I think what you all argued the other

day is possibly erroncous. I don’t say it is, and I’m speaking

of the broad interpretation you give te the 19 U.S.C. 482

Customs Searches, because that applies at borders. I don’t

think that applies anywhere.” [T.512]

Petitioner’s Motion for Directed Verdict again raised the issue,

at which time the following colloquy took place:

“‘THE COURT: I blame myself, if there is any error there,

because I followed the Government’s argument without

really looking up the law, except my general knowledge

of it.

“And, they informed me that only a suspicion was neces-

sary and that the powers were very broad with regard to a

search and seizure by customs officials—that’s not the law

at all.

“MR. RIGAU: ... it is still not too late at this point to

grant the motion for mistrial.

“THE COURT: I have crossed the Rubicon on that.”

[T.702]

“. .. [T]hey should have, in my opinion not opened that

briefcase under those circumstances. But I have made that

ruling ....” [T.703]

As to the contents, the Court related:

[footnote continued]

5

The question of whether a search was made at a

functional border equivalent revolves around whether

the Customs Agent involved knew for a “reasonable

certainty” that the vessel which had been searched had

crossed in to United States territory. United States v.

Tilton, 534 F.2d 1363, 1366 (9th Cir. 1976). In deter-

mining the legality of a warrantless Customs search,

“the issues of functional equivalency and reasonable

basis must be judged according to the information

known to [the Customs Agent] at the time he gave the

signal for the interception and seizure.” United States

v. Tussell, 441 F.Supp. 109%, 1107 (M.D. Pa. 1977),

relying on United States v. Brennan, 538 F.2d 711 (5th

Cir. 1976), cert. dented, 429 U.S. 1092 (1977).

In this case, the Customs Officer who seized the

briefcase testified that at the time of the seizure she

had “no knowledge or proof” who the case belonged

to or that the briefcase had even come off the aircraft

in question. (T.163). The Customs Agent who later

searched the briefcase sometime later, miles from the

arrest, testified simply that he felt he had, under his

powers as a Customs Officer, the authority to open the

briefcase without a warrant. (T.187). The Customs

Agents involved testified that they had no idea where

the plane had come from; they did not see the briefcase

being removed from the airplane, and identified it only

“It was the fruit of the poisonous tray.” [sic] [T.704]

and further:

“Well, I made my decision. It may be wrong, but I’ve

got to stick by that. As a matter of fact, it couldn’t be cured

now.” {T.713]

Although the Court felt that error may have been committed,

the motion for mistrial was denied (T.702) and, consequently,

petitioners were convicted on all counts of the Indictment.

(R.683)

6

as a common aeronautical briefcase. (T.183-186).

Therefore, they did not have knowledge to a “reasonable

certainty” that it had come from abroad.

In applying Almeida-Sanchez v. United States, 413

U.S. 266 (1973), the Fifth Circuit in United States v.

Brennan, supra, held that a search at an airport which

was not a functional border equivalent did not possess

characteristics of a border search and could not be

supported even under the broad powers which United

States Customs Officers possess. In reaching its deter-

mination that Melbourne Regional Airport was not a

functional border equivalent, the Fifth Circuit held that

there must be a showing that the aircraft in question

flew nonstop from outside the country, or that agents

possessed a “necessary degree of certainty” that it did.

(538 F.2d at 715).

In the instant case, there was no showing whatsoever

that any of the flights landing at Plantation Field were

international in origin. As in Brennan, no flight plan

had been filed which could be used to show the pilot

intended to cross the border. Brennan held that the

mere assumption that the flight was international in

origin was, “simply too attenuated ... to support [a]

search as one occurring at a functional border equivalent

of an international border.”’ Without the contents of the

briefcase, the government in this case had no articulable

facts that the aircraft came from outside the border.

Therefore, we must consider this search under the

standards enumerated in United States v. Chadwick,

433 U.S. 1 (1977), as modified by this Court’s recent

decision in Payton v. New York, supra. In Payton,

Justice Stevens noted the distinction between a warrant-

less seizure in an open area and such a seizure on private

premises, quoting with approval-language from G.M.

7

Leasing Corp. v. United States, 429 U.S. 338, 354

(1975):

It is one thing to seize without a warrant property

resting in an open area .. . and it is quite another to

effect a warrantless seizure of property... situated

on private premises to which access is not otherwise

available for the seizing officer.

That a locked briefcase constituted “‘private premises”

should be clear after Chief Justice Burger’s opinion in

Chadwick:

“In this case, important Fourth Amendment privacy

interests were at stake. By placing personal effects

inside a double-locked footlocker, respondents

manifested an expectation that the contents would

remain free from public examination. No less

than one who locks the doors of his home against

intruders, one who safeguards his personal posses-

sions in this manner is due the protection of the

Fourth Amendment Warrant Clause. There being

no exigency, it was unreasonable for the Govern-

ment to conduct this search without the safeguards

a judicial warrant provides.” [433 U.S. 11]

In Payton, this Court stated that if federal officers

were free to search without a warraii merely upon

probable cause to believe that certain articles were within

a home, the provisions of the Fourth Amendment would

become empty phrases, and the protection it affords

largely nullified. 48 U.S.L.W. at 4379 n.26.

In this case, the same rationale applies. If officers are

free to search a locked briefcase without a warrant and

without any probable cause to believe that articles within

the briefcase may be incriminating, the same Fourth

Amendment protections are endangered. In United

States v. Berry, 560 F.2d 861 (7th Cir. 1977), Federal

8

agents removed a briefcase from appellant’s car eight

minutes after the arrest and opened it. The Court stated:

. . . [A]s was true of the footlocker in Chadwick,

the privacy interest in the attache case here centered

on its contents rather than on the container itself.

A search of the interior constituted a far greater

intrusion into the Fourth Amendment values than

either [the] arrest or the impoundment of the

case .... The warrantless search of the attache case

in police custody cannot be justified as a search of

[the] person .... [560 F.2d at 864]

Payton firmly states that absent exigent circumstances,

the threshold of the home may not reasonably be crossed

without a warrant. 48 L.W. 4380. A locked briefcase

is merely an extension of the home or office. Under

Payton, it, too, cannot be broken into without a warrant

in the absence of exigent circumstances. Since the

officers had complete control of the briefcase in this

case and: in fact transported it approximately forty-five

miles before it was opened, there were no exigent cir-

cumstances. Therefore, it should not have been opened

without a search warrant.

9

CONCLUSION

In light of this Court’s opinion in Payton v. New York,

supra, certiorari should be granted to consider the consti-

tutionality of the search in this case.

Respectfully submitted,

FRANK A. MIKA

ARTHUR S. MEISNERE

MEISNERE & MIKA

1707 L Street, N.W., Suite 560

Washington, D.C. 20036

J. FLowers Mark Attorneys for Petitioners

LOWE, MARK, MOFFITT, Pernell, Toombs & Pernell

FORD & BARTON

216 South Pat.ick Street

Alexandria, Virginia 22314

Attorney for Petitioners CARLTON L. WEDDEMEYER

Harvey and Darwin WIGHTMAN, WEIDEMEYER,

JONES & TURNBULL

319 South Garden Avenue

Clearwater, Florida 33516

JOHN KENNETH ZWERLING Attorney for Petitioner Maskeny

JONATHAN SHAPIRO

ZWERLING & SHAPIRO, P.C.

108 North Columbus Street

Alexandria, Virginia 22314

Attorneys for Petitioner Perkins

May 23, 1980