Petition — Kulik v. United States

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

No. oy

ai Bs

ALEXANDER KULIK,

PETITIONER,

alas

UNITED STATES OF AMERICA,

‘RESPONDENT.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

PHILIP A. DeMASSA

Attorney at Law

2150 First Avenue

San Diego, California 92101

Telephone: (714) 236-0897

Attorney for Petitioner

ALEXANDER KULIK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

No.

ALEXANDER KULIK,

PETITIONER,

—

UNITED STATES OF AMERICA,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

INDEX

Table of Cases

Opinion Below

Jurisdiction

Question Presented For

Review

Importance Of The

Question Presented

Constitutional Provision

Involved

Statement Of The Case

Argument

I The Search Warrant Was

Not Supported By

Probabie Cause To

Believe The GMC

Truck Contained

Evidence.

A. The Affidavit Set

Forth Solely The

Officer Affiant'’s

belief Evidence Would

Be Found In The Pickup;

Mere Belief Is Insufficient

For Probable Cause.

pe

Bas

B. The Affidavit Failed

To Provide Any Nexus To

The GMC Vehicle As To

Provide Probable Cause

To Believe It Contained

Evidence. 15.

II The Officers Needed A

Warrant To Enter The

Condominium To Arrest

Elsie Kulik When They

Were Aware Of Her

Presence For Two Days

Prior To Entry. 18.

CONCLUSION oS B

ii.

Cases:

TABLE OF CASES

Aguilar v. United States,

378 U.S.

3 (1964)

n.

Arkansas v.

408,112,

Sanders, Cis

59

Byars v.

99 S.Ct. 2586,

(1979)

United States,

ia Usb

28, 29 (1927)

Cardwell v. Lewis, 417 U.S.

J03,

5990 (1974)

Carroll v. United States,

407 U.S.

132, 155-56,

158-59 (1925)

Coolidge v.

New Hampshire,

403 U.S.

(1971)

Franks v.

443, 461-62

Delaware, 438 U.S.

154,

Giordenello v. United States,

165 (1978)

Sal Us Be

(1958)

Goldsmith v.

480, 485-86

United States,

4339:°U.5.

J13 (1978)

Le

Page

12

14

14

14

12

12

19

Grau v. United States, United States v. Reed,

28/7 U.S. 124, 127 (1932) 13 575 F.2d 412, 417-22

ie Cae. 19

Nathanson v. United States, ;

290 U.S. 41, 47 (1933) 12 Warden v. Hayden, 387 U.S.

294, 307 (1967) 16

Payton v. New York,

No. 78-5420 18 Zurcher v. Stanford Daily,

436 U.S. 547,556-57,

People v. Pellegrin, n. 6 (1978) 12

78 Cal.App.3d 913

916-17, 144 Cal.Rptr.

421, 424 (1977) 17

United States Code:

People v. Ramey, 16 Cal.3d

203, 442 19 § 1254(1) 2

People v. Scott, 259 Cal. United States Constitution:

App.2d 268, 277 17

IV Amendment 4

Ravin v. State (Alaska 1975), .

537 P.2a 494 16 California Health and Safety: y

Riddick v. New York, ! § 11357 (b) 16

No. 78-5421 18

California Penal Code:

Spinelli v. United States, ;

393 U.S. 410, 41/-18 §1000.5 i?

n. 5 (1969) i2, a3 §1000, et seq. 16

United States v. Chadwick,

433 U.S. 1, Léd-is (i977) 14

United States v. Prescott,

Sus Fvaa 4343 oem Car.

1978) 10, 18

iv.

AMEE 0 i Ba even

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

No.

ALEXANDER KULIK,

_ PETITIONER,

-ys-

UNITED STATES OF AMERICA,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

Petitioner, Alexander Kulik, prays

that a writ of certiorari issue to

review the judgment of the United

States Court of Appeals for the Ninth

Circuit entered February 14, 1980.

1.

OPINION BELOW

The Ninth Circuit Court of Appeals

entered its decision, No. 78-3053, on

February 14, 1980, denying petitioner's

timely Petition for Rehearing and

Request for Rehearing En Banc. A copy

of the Order is attached as Appendix

"A". An Order denying petitioner's

appeal was originally entered on

May 24, 1979. A copy of the original

order is attached as Appendix "B".

JURISDICTION

The jurisdiction of this Court is

invoked under Title 28, United States

Code, Section 1254(1).

“«

QUESTION PRESENTED FOR REVIEW

1) Whether there was probable

Cause under the Fourth Amendment to

issue a search warrant for a GMC pickup

where the only fact presented to the

magistrate linking the pickup to

unawful activity was the affiant's

belief?

2) Whether a warrant was needed to

enter the residence to arrest a fugitive

when the officers knew such person was

there continuously for two days prior

to their entry?

IMPORTANCE OF THE QUESTION PRESENTED

The Fourth Amendment provides that

search warrants shall not issue but upon

"probable cause". This Court has

consistently held that the term "probable

cause" means more than the good faith

hunch or suspicion of a law enforcement

officer seeking to invade the privacy of

a citizen's effects to search. Hence,

this Court has consistently required

that facts, as opposed to the officer's

belief, are the touchstone of probable

cause.

Petitioner seeks review sc that the

issue of the quantum of facts and

evidence necessary under the circum-

stances of this case as it relates to

automobiles can be decided. An

automobile, at times, carries with it

the same sanctity of privacy as one’s

dwelling or suitcase when it is used as

a repository of personal items and it

is no longer mobile.

The Fourth Amendment's requirement

that a search warrant not issue but upon

probable cause would be eviscerated if

an officer's belief is substituted for

facts establishing unlawful activity.

An averment that one who was once

arrested for possession of narcotics or

is suspected of a homicide would,

coupied with the’ officer's belief, sub-

ject all his property to an open season

by officers who desired to continue

searching for evidence.

J.

Further, petitioner has raised the

issue of whether a warrant is necessary

to apprehend a fugitive in a house

when officers have probable cause to

believe she is in the dwelling. This

issue 1s currently before the Court.

3a.

CONSTITUTIONAL PROVISION INVOLVED

United States Constitution, Amendment

IV provides:

"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 person or

things to be seized."

STATEMENT OF THE CASE

On December 14, 1977, Newport Beach

Officer Lee Roberts swore out an

affidavit for search warrants to search

a condominium and two vehicles (a GMC

pickup and a Cadillac Deville) in

Carlsbad, California. The affidavit

indicated that the officers were in

Carlsbad on December 13, 1977, at the

condominium at 2412 Altisma Way,

Apartment "F" for the purpose of

locating fugitive Elsie Kulik ona

4.

$500,000.00 bench warrant issued

November 17, 1978, by the Orange County

Superior Court on a conspiracy to

commit murder offense. The affiant,

Newport Beach Police Officer Lee

Roberts, stated he observed Elsie Kulik

on December 13 and she did not leave

the residence at any time. Roberts

caused to have the condominium placed

under constant surveillance. Elsie

Kulik was not observed to leave the

condominium. On December 14, the

affiant and five other police officers

knocked on the door and demanded to

arrest Elsie Kulik on the Orange County

arrest warrant. Her husband, Alexander

Kulik, stated she was not there; he

was arrested for harboring a fugitive.

The affidavit indicated the

officers commenced a floor to floor

search of the 3 floor condominium.

While searching the second floor level

for Mrs. Kulik, a small amount of

loose marijuana was observed on a

coffee table. The affiant opined it

was his "experience that persons who

use marijuana keep an additional supply

hidden for personal use and for sale

in their homes and in their vehicles."

The affiant requested to search for

items that were used in the packaging

of marijuana, “such as baggies and it

has been your affiant's experience

that persons who use and sell marijuana

will keep scales to weigh substances

which are sold or purchased."

-

The affiant stated that he had

received information from another

Newport Beach officer that Alexander

Kulik had been arrested on October 22,

1977, in Orange County with a pound of

heroin and was charged with possession

tor sale.

A further search of the condominium,

indicated a .22 caliber rifle

underneath the bed on the third level

and a cylinder portion of a hypodermic

syringe, without the plunger or needle.

Elsie Kulik was arrested hiding in a

crawl hole in the bedroom area dressed

in a nightgown.

A further search of the apartment

revealed two file boxes labeled "PDI"

which stood for Prasadam Distributing

Incorporated, a business involved in

the homicide investigation. The

affiant was aware that an investigation

was being conducted by another Newport

Beach officer involving the death of

Steven Bovan who was shot numerous

times with a .9 mm weapon. Bovan

subsequently died.

The affiant related that he had

been told that Alexander Kulik was

kidnapped by Bovan and others and

subsequently ransomed for $100,000.00.

After Alexander Kulik's release,

various persons met at PDI and

$25,000.00 was offered to Anthony

Marone, Jr., Anthony Marone, Sr.,

6.

Frank Rossi, Jerry Fiori and Ray Resco

for the kidnap and murder of Bovan and

two others. Alexander Kulik made this

offer and Elsie Kulik and others

joined in it in order to get revenge

for Alexander Kulik's kidnapping.

The affiant indicated that there

were tape recording devices in each

room of PDI and there were recordings

made of conversations. An earlier

search warrant to search the offices

of PDI was unsuccessful because it was

determined that the tapes were moved to

other offices.

Further efforts were made to locate

the kidnappers including traveling, to

San Diego with expense money being paid

to Marone, Jr., Rossi, Fiori and Resco.’

It was the affiant's opinion that

the documents and tape recordings

corroborating the homicide investigation

were presently located in the file boxes

which were located in the Altisma

condominium.

The affiant found fictitious

identification in the name of Albert

Helms on Alexander Kulik when he was

arrested. Roberts related that he

"received information from official

law enforcement sources" that the GMC

pickup has been driven by Alexander

Kulik "in the recent past". The

affiant observed this vehicle parked in

Ve

the garage of the premises. Roberts

also observed Alexander Kulik driving

the Cadillac Deville during the time

he had the residence under surveillance.

(December 13 and 14, 1977).

This pickup was registered to

Albert Helms according to California

Motor Vehicle records.

The affiant concluded that based

upon his "training and experience" ,

he knew that "persons who possess

marijuana, false identification, and

other evidence of crimes often carry

and store these items in their homes

as well as their vehicle" (sic).

The affidavit concluded by seeking

a search warrant for seizure of "said

property, or any part thereof, from the

above-described premises."

A San Diego municipal court judge

issued the search warrant authorizing

the search to include all rooms,

storage areas and out buildings of the

Altisma address, along with the

Cadillac Deville and the 1977 GMC

pickup for the following personal

property: “narcotics, including but not

limited to marijuana, paraphernalia for

the sale, use and transfer of marijuana,

including but not limited to baggies,

sales records, wrapping paper, tape,

papers, documents and effects which

show possession, dominion and control

3

of said premises, including but not

limited to keys, rental receipts, mail

envelopes and monogrammed clothing, and

tape recordings, receipts, phone

messages, cancelled check stubs that

would indicate that Alexander Kulik and

Elsie Kulik hired other persons to kill

Steven Bovan, and records from

Prasadam Distributing Incorporated."

Numerous items were seized from the

Altisma residence. Seized from the air

cleaner of the GMC pickup was 13 ounces

of heroin which formed the basis of

the conviction for which petitioner

stands convicted and seeks a petition

for writ of certiorari to this Court.

On December 16, 1977, petitioner

and his wife were indicted on two

counts in United States District Court

for the Southern District of California

with conspiracy to possess with intent

to distribute and possession of 13

ounces of heroin with intent to

distribute.

On February 24, 1978, a motion to

Suppress evidence was filed by

petitioner in the district court. It

was denied on February 27, 1978.

Petitioner was convicted on July 31,

1978, on count two pursuant to a

written stipulation. On September 5,

1978, petitioner was sentenced to four

year's imprisonment and a ten year

special parole term. The government

9.

dismissed count one as to petitioner and

both counts as to Elsie Kulik.

Notice of appeal was filed

September 6, 1978. Petitioner is

currently incarcertated, having

voluntarily moved to have his previously

set appeal bond exonerated.

During the pendency of the appeal,

petitioner filed a Motion to File A

Supplemental Brief and a Supplemental, ,

Brief Based on State Court Judgment. —

At oral argument, petitioner raised

the propriety of the entry into the

condominium to arrest Elsie Kulik

without a warrant, citing United

States v. Prescott, 581 F.2d 1343

1/7 The,supplemental brief alleged that

a California superior court had ruled

on the same affidavit involved herein

at petitioner's motion to suppress

evidence in state court. The state

court ruled that the warrant was

unlawful both under the Fourth

Amendment and the California Constitution.

Petitioner's arguments that the state

court judgment should be given deference

and full faith and credit was not

reached by the Circuit Court of Appeals

and consequently will not be raised

herein. ,

10.

(9th Cir. i978).

On May 24, 1979, the circuit court

affirmed petitioner‘*s conviction. The

circuit voted two to one for conviction,

Judge Ely dissented, holding that the

affidavit was insufficient to authorize

searching of the GMC pickup. (Appendix

“3 s

A timely filed petition for rehearing

and rehearing en banc was denied

February 14, 1980. (Appendix "A").

ll.

ARGUMENT

I

THE SEARCH WARRANT

WAS NOT SUPPORTED

BY PROBABLE CAUSE

TO BELIEVE THE GMC

TRUCK CONTAINED

EVIDENCE.

A. The Affidavit Set Forth Solely

The Officer Affiant's Belief Evidence

Would Be Found In The Pickup; Mere

Belief Is Insufficient For Probable Cause.

Because the officer affiant

observed a small quantity. of marijuana

in the condominium, he stated it was

his "experience that persons who use

marijuana keep an additional supply

hidden for personal use and for sale

in their homes and vehicles".

The affiant observed a GMC pickup

parked in the garage that had been

driven by petitioner in "the recent

past,” along with a more recently

driven Cadillac. The affiant concluded

based upon his training and experience

that he knew that "persons who possess

marijuana, false identification, and

other evidence of crime often carry

and store these items in their home

as well as their vehicle" (sic).

No facts were alleged to indicate

how either vehicle related to unlawful

12.

activity, or how the affiant knew a

causal relationship between the objects

to be searched and the objects sought

existed.

Probable cause for a search warrant

requires the same degree of certitude

as probable cause to arrest. Zurcher v.

Stanford Daily, 436 U.S. 547, 556-57,

n. 6 (1978); Spinelli v. United States,

sos U.S. 410, 417-18, n. 5 (1969):

Aguilar v. United States, 378 U.S. 108,

112, n. 3 (1964); Giordenello v.

United States, 357 U.S. 480, 485-86

(1958); Ex Parte Burford, 7 U.S.

(3 Cranch) 451-52 (1806). Both arrest

and search warrants must set forth

facts and not just the officer's belief

that probable cause to arrest or search

exists. A simple assertion of police

suspicion is not itself a sufficient

basis for a magistrate's finding of

probable cause. Spinelli v. United

States, supra, at 418.

Here, the affiant officer set forth

no facts or circumstances to show

that petitioner's vehicle was involved

in unlawful activity. This Court on

several occasions has held mere

affirmance of belief or suspicion is

insufficient to support probable

cause to issue a search warrant. Facts

must be presented. Nathanson v.

United States, 290 U.S. 41, 47 (1933);

Franks v. Delaware, 438 U.S. 154, 165

(1978).

i & 2

"If an officer

Simply avers, without

more, that there is

[illegal evidence], the

warrant should not issue,

even though the belief

is an honest one, as

evidenced by his Oath,

and even though the

magistrate knows him

to be an experienced,

intelligent officer who

has been reliable in

the past." Spinelli,

Supra, at 423 (White, ~ -a

concurring); see also,

Grau v. United States,

207 Us8... i268, 127

(1932); Byars v.

United States, 273

U.S. 28, 29 (1927),

An automobile is entitled to the

same Fourth Amendment Safeguards and

privacy considerations as an

individual's home or Suitcase, when

the automobile is considered by the

police as a repository for personal

effects. This Court has normally

considered a search of an automobile

for less intrusive on the privacy

rights protected by the Fourth

Amendment than the search of one's

person or home. Cardwell v. Lewis,

417 U.S. 583, 590 (1974). The Court

reasoned that one has a "lesser

expectation of privacy in a motor

vehicle because its

14.

function is transportation and it seldom

serves as one's residence or as the

repository of personal effects".

Id. 2/

Contrary to the reasoning in

Cardwell, supra, the affiant officer

felt that vehicles were, in his

experience, used to keep marijuana

and other evidence of crime. Since

the search sought to be authorized here

was of the entire vehicle and its

contents, the Fourth Amendment's

requirement of probable Cause must be

the same quantum as to any other area

where one has a reasonable expectation

of privacy in his personal effects.

Coolidge v. New Hampshire, 403 U.S. 443,

461-62 (1971); Carroll v. United States,

267 U.S. 132, 155-56, 158-59 (1925).

Since the intrusion sought the search

Of every nook and cranny of the

2/ Automobiles have traditionally been

accorded lesser Fourth Amendment privacy

protection because of their mobility

and regulation and use. Arkansas v.

Sanders, u.8. » F2 2.Ce. 2586,

2591 (1979); United States v. Chadwick,

O22 U8. i, Taees (1977). However,

in petitioner's case, both petitioner

and his wife were under arrest and the

vehicle was in the garage. The

affidavit contained nothing to show any

personal material was observed in plain

Sight in the GMC or. Cadillac.

53;

automobile was no severe, the right to

privacy is correspondingly greater.

Cardwell v. Lewis, 417 U.S. at 573,

ae OF

Without more, a search warrant

cannot be constitutionally supported

when the facts used to support it are

the officer's beliefs which show no

unlawful activity involving petitioner

with the automobile or the automobile

itself.

B. The Affidavit Failed To Provide

Any Nexus To The GMC Vehicle As To

Provide Probable Cause To Believe It

Contained Evidence.

The affidavit set forth that a

small amount of marijuana, a plunger,

some records relating to a murder

investigation, a .22 rifle, and false

identification were found in the

residence. The GMC and Cadillac were

related to the residence solely by

petitioner's ownership under different

names - a circumstance which is not

unlawful. The affiant had observed

petitioner drive the Cadillac the

day before the search. Law enforcement

sources told the affiant petitioner

had driven the GMC truck "in the recent

past". This innocent activity is

insufficient to allow a search warrant's

issuance.

16.

Petitioner is aware of no case where

this Court has authorized a search

warrant under such meager facts and

circumstances, where the affidavit sets

fourth no activity related to the

automobile except that it was driven

in the recent past.

There must be a nexus between the

item to be seized and criminal

behavior. Warden v. Hayden, 387 U.S.

294, 307 (1967). The only nexus

alleged by the affiant here was his

Own experience. As stated previously,

ante "A", the officer's belief is

insufficient.

The criminal behavior of possession

of a small quantity of marijuana does

not lead a California police officer to

logically conclude other amounts are

concealed in an automobile. This

conclusion has been rejected by the

California legislature which recently

amended California Health and Safety

Code Section 11357(b) to provide that

possession of a ounce of marijuana is

punishable as an winfraction with a

maximum $100.00 fine. 3/ Further, the

California legislature, by enacting

Penal Code Section 1000, et seq,

3/ One state has held that possession

of small amounts of marijuana within the

home is constitutionally protected by

the right to privacy. Ravin v. State

(Alaska 1975), 537 P28 494,

commonly known as the "diversion"

statute, has provided that possessors of

small amounts of marijuana are

considered fit candidates for

rehabilitation whose cases would

ultimately be dismissed. Calif. Pen,

C. §100.5. The fact that a marijuana

plant is growing does not justify

the conclusion that one who cultivates

marijuana possesses it in his

residence, garages or outbuildings.

People v. Pellegrin, 78 Cal.App.3d

913, 916-17, 144 Cal.Rptr. 421, 424

(1977). 4/

The other facts related in the

affidavit provide no further support

for any nexus: false identification,

a syringe plunger, and a rifle add _~

nothing. Since there was no allegation

set forth in the affidavit of any

connection between the item to be

seized and criminal behavior, the

evidence seized pursuant to search of

the pickup must be suppressed under the

Fourth Amendment.

4/ See also, People v. Scott, 259 Cal.

App.2d 268, 277, 66 Cal.Rptr. 257 (1968).

18.

If

THE OFFICERS NEEDED A

WARRANT TO ENTER THE

CONDOMINIUM TO ARREST

ELSIE KULIK WHEN THEY

WERE AWARE OF HER

PRESENCE FOR TWO DAYS

PRIOR TO ENTRY.

Newport Beach officers while

executing an Orange County arrest

warrant, were present in Carlsbad in

San Diego County for two days before

attempting to arrest petitioner's wife.

Without attempting to secure a

warrant from the local San Diego

magistrate, the officers entered the

condominium, arrested petitioner and

commenced a thorough floor by floor

search to determine if Mrs. Kulik was

present.

The issue of whether a warrant

is required to arrest a person in a

home, where there already exists

probable cause to arrest, is currently

before this Court. Riddick v. New York,

No. 78-5421; Payton v. New York,

No. 78-5420; see also United States v.

Prescott, 581 F.2d 1343, 1348-49

(9th Cir. 1978); 5/ United States v.

5/ Petitioner cited Prescott at oral

argument and the circuit court

considered it. (Appendix "B").

19.

Reed, 572 F.2d 412, 417-22 (2 Cir.)

sub-nom Goldsmith v.

cert. denied,

United States,

439 U.S.

913 (1978) ;

People v. Ramey, 16 Cal.3d 263, 275,

127 Cal. Rptr. 629, 636, 545 P.2da 1333,

1340, cert. denied 429 U.S. 929 (1978).

Since this issue has been recently

fully briefed and argued before this

Court, it would serve no purpose to

restate those arguments. Petitioner

relies onthe briefs, arguments and

cases cited above as there is no

dispute on the facts.

CONCLUSION

The petition for writ of certiorari

should be granted.

DATED: MARCH 14, 1980

PHILIP A. DeMASSA,

Attorney for Petitioner

- Alexander Kulik

20.

29

30

| UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 78-3053

-vs-

ORDER

ALEXANDER KULIK,

Defendant-Appellant.

eee eee ee ee

Before: ELY, WALLACE and PREGERSON,

Circuit Judges

The majority of the panel as constituted above has

| voted to deny the petition for rehearing; Judge Ely has voted

to grant panel rehearing. Judges Wallace and Pregerson have

voted to reject the suggestion for rehearing en banc, and

Judge Ely has recommended rejection, of the same.

The full court has been advised of the suggestion

for rehearing en banc, and no judge of the court has re-

quested a vote on the suggestion for rehearing en banc. Fed.

R. App. ®. 35(b).

The petition for rehearing is denied and the sug-

|

| gestion for rehearing en banc is rejected.

APPENDIX "A"

ee @ 2 ©. & #2. 1

a en ee

oe BB ow

14

15

‘

"

UNITED STATES COURT OF APPEALS ED

l4ay 24 1979

FOR THE NINTH CIRCUIT

Pp MELA, JR

* S. COurr ‘

UNITED STATES OF AMERICA, OF 4

Plaintiff-Appellee, )

) No. 78-3053

eat ae

ALEXANDER KULIK, ORDER

)

)

Defendant-Appellant.

\

Appeal from the United States District Court

for the Southern District of California

Before: ELY and WALLACE, Circuit Judaes,

and PREGERSON,* District Judge

After considering the sufficiency of the

affidavit and search warrant and the Prescott issues, we

conclude that the trial court correctly ruled on Kulik's

motion to suppress. The conviction is affirmed. Jucce

Ely believes that the affidavit was insufficient to

authorize the search of the pickup and therefore dissents.

PPERI 6

*Honorable Harry Pregerson, United States District Judg2,

Centra’ Oistrict of California, sitting by designation.

APPENDIX "B"

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AFFIDAVIT OF SERVICE

STATE OF CALIFORNIA)

COUNTY OF SAN DIEGO) ss.

GRACE M. FOLKS, after first being

duly sworn, deposes and says:

That on March 14, 1980, she served

a copy of the PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT by placinga

true copy of same by depositing same

in an envelope, postage pre-paid, first

class, in a mailbox regularly maintained

by the United States Post-Office and

address as follows:

Solictor General of the

United States

Department of Justice

Washington, D. C. 20530

I declare under penalty of perjury

that the foregoing is true and correct.

Executed on March 13, 1980, at

| KES OFFICIAL SEaL g

kine! sy ARLENE F. GREENBSR

>

85,7 cig “OlARY PueUIE cain

& A yote PRINCIPA OFFICE

- =

SAN DIEGO CcU AQ

My Commission Expires Octoter 16, 1981

° to* ‘ y . 4 ~ /

e eit ax oe

v pis

: APHIS before

me this 13th day of March, 1980.

t ublic”i or sai

State and County