Petition — Hensler v. United States

80-841. si

No. Supreme Court, U.S.

deinen ods cima LED

ain MOV 24 1980

Supreme Court of the United /States

OCTOBER TERM, 1980 MICHAEL RODAK, JR., CLERK

JOHN F. HENSLER, JR. and CHARLES BATTY,

Petitioners,

V.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

James K. Jenkins

(Counsel of record)

Stroup, Goldstein. Jenkins

& Pritzker

900 Flat Iron Building

84 Peachtree Street, N.W.

Atlanta, Georgia 30303

(404) 524-4343

Bruce H. Morris

Devine & Morris

4 Piedmont Center, Suite 111

3565 Piedmont Road, N.E.

Atlanta, Georgia 30305

(404) 233-4141

Morris D. Rosen

Robert N. Rosen

Rosen, Oberman & Rosen

85 Broad Street

Charleston, S.C. 29402

Counsel for Petitioners

THE CASILLAS PRESS, INC.-1717 K Street. N. W.-Weshington, 0. C.-223-1220

(1)

QUESTIONS PRESENTED

1. Whether the Court below erred in

Overruling Petitioners’ Motion to Suppress

the warrantless search of the locked cabin

area of a sailboat which had been stranded

On a sandbar in intercoastal waters where

numerous officers had surveilled the boat

for a number of hours and had ample time

and opportunity to apply for a search

warrant.

2. Whether the Court below erred in

failing to base its decision on the Motion

to Suppress on factual showings contained

in the record.

3. Whether the Court below erred in

overruling Petitioners' Motion to Suppress

the warrantless search of Petitioner

Hensler's suitcase at an airport security

gate in the absence of any showing of sus-

picious circumstances or a valid consent

r me

_ *

(ii)

by Petitioner.

4. Whether the Court below erred in

admitting Petitioner Batty's counselless

confession in the absence of any showing

of a valid waiver by Petitioner of his

right to counsel.

(iii)

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED........ Soseewne. ERE

TABLE OF AUTHORITIES... cccccece » (v)

OPINIONS BELOW...... coc eccsececves 2

dH fs EE ee ee are eee rae 2

CONSTITUTIONAL PROVISIONS

Pt Kh, | | ee eoeeteeeeeeteeeeee#ee#s#see?## 8 4

STATEMENT OF THE CASE...c.scccccvecs 4

REASONS FOR ALLOWING THE WRIT...... 14

I. THE DECISION BELOW IS

CONTRARY TO THE DECISIONS

OF THIS COURT AND THE

FOURTH AMENDMENT TO THE

CONSTITUTION IN UPHOLDING

THE WARRANTLESS SEARCH

OF THE CABIN OF A GROUNDED

SAILBOAT IN THE ABSENCE

OF BOTH PROBABLE CAUSE

AND EXIGENT CIRCUMSTANCES... 14

A. Peepepie CaweO.cescivcs 16

B. Exigent Circumstances.. 24

II. THE DECISION BELOW IS

CONTRARY TO THE DECISION

OF THIS COURT AND WELL-

FOUNDED PRINCIPLES OF

APPELLATE REVIEW IN THAT

THE EVIDENCE FAILS TO

(iv)

Page

SUPPORT THE OPINION OF

THE COURT OF APPEALS....... 39

III. THE DECISION BELOW AS TO

THE WARRANTLESS SEARCH OF

PETITIONER HENSLER'S

LUGGAGE AT AN AIRPORT

SECURITY GATE IS CONTRARY

TO WELL-ESTABLISHED PRINC-

IPLES OF FOURTH AMENDMENT

LAW AND CONTRIBUTES TO A

CONTINUING AND CLEAR CON-

FLICT BETWEEN THE DECI-

SIONS OF THE VARIOUS

COURTS OF APPEALS ON THIS

ISSUE. cc cccccccccccccccccs 48

IV. THE DECISION BELOW FAILED

TO APPLY THE CORRECT

CONSTITUTIONAL STANDARD

IN ASSESSING THE ADMISS-

IBILITY OF PETITIONER

BATTY'S CONFESSION IN

THAT IT FAILED TO FIND

A WAIVER OF THE RIGHT

BO COUmMe Bbc ccccccccesecesce 5G

CONCLUSION... --cececccces ccccccccceos 63

APPENDIX A - Opinion of the

United States Court of

Appeals for the Fourth

Circuit, Case No. 79-5098

Decided July 23, 1980

APPENDIX B - Order of the United

States Court of Appeals

for the Fourth Circuit,

Case No. 79-5098,

Decided August 26, 1980

(v)

TABLE OF AUTHORITIES

Cases Pages

Aguilar v. Texas, 378 U.S. 108

CRORES 0.0 ccbebecocsscsbeee cesses 17,21,22

Arkansas v. Sanders, 442 U.S.

Fae GES la eve cccceeesceceteusets 36

Brinegar v. United States,

See Use, 400 CEPSE Khe cecckees 17,18,24

Brewer v. Williams,

SHO Coe Ser CAPtts cdacckd denedés 57,59,60,

63

Carroll v. United States,

Sey Gale BSe CAPES) 6s ct ereeweee 29

Chambers v. Maroney,

Dee Gebe GS TAP TC eee acescnsee 29,31,37,

38

Coolidge v. New Hampshire,

Wee Gele GES CEPTEs 400666660 6ue 24,28,30,

34,35,36

Draper v. United States,

S28 Ucbe FST LESS) cescvnencees 17

Duke Power Company v. Carolina

Environmental Study Group,

Boe VeSe Be CEPTS 06 6a cesctedaus 46

Estelle v. Williams,

GSS Gee DOL LATO) cescveunes oe

Marshall v. Barlow's, Inc.,

SIO Uebe SEt LESTE) 60 00486 ee ween 24

(vi)

Pages

Massiah v. United States,

377 U.S. 201 (1964) .......6- 56,59,63

McCreary v. Sigler, 406 F.2d

1264 (8th Cir. 1969)......... 21,22

Michigan v. Tyler, 436 U.S.

499 (1978) .ccccecceveceeceees 24

Miranda v. Arizona, 384 U.S.

436 (1966) .. ce eecereenecseces 56,61

Nash v. Estelle, 597 F.2d 513

(Sth Cir. 1979) ..cceeeseceees 62,63

Rhode Island v. Innis, U.S.

> Bee BSecCe. L682 (1950)... 57,62

Roemer v. Board of Public

Works of Maryland, 426 U.S.

) Co >.) ee er ee 46

Schmerber v. California,

384 U.S. 757 (1966) .ccccccces 30

Schneckloth v. Bustamonte,

412 U.S. 218 (1973) ..cccccees 52

Singleton v. Commissioner

of Internal Revenue, 606

Fame SO C36 CoE ec L979) cccccee 53

Spinelli v. United States,

39S Uc. S20 CLD) cccccces os A? pea

Terry v. Ohio, 392 U.S. l

[APOE ceecsocdsecosse oeeeeeneee > Fh

United States v. Albarado,

495 F.2d 799 (2d Cir. 1974).. 53

(vii)

Pages

United States v. Bell, 457

P.24 L233. (5th Cir. 1972) cee 22

United States v. Bradshaw,

490 F.2d 1097 (4th Cir.

Lo, are res Tee ee Ee A ee oe 30,35,44

United States v. Carabello,

571 F.2d 975 (5th Cir.

>. | rr ew ee ea ee ee ee 30,31

United States v. Caraway,

474 F.2d 25 (5th Cir.

1973), vacated on other

grounds, 483 F.2d 215

(StH Cir. 1973) .cccccccccccece 37

United States v. Chadwick,

Bae Gale B. LAPTT 666 bese seese 24,36

United States v. Clark,

S75 B.ae 240 (2G GSE. L973) «2 33

United States v. Davis,

482 F.2d 893 (9th Cir.

be) a ee ee en he awe es 53

United States v. DeAngelo,

denied, 440 U.S. 935 (1979).. 50,51

United States v. Epperson,

454 F.2d 760 (4th Cir.), cert.

denied, 406 U.S. 947 (1972).. 51

United States v. Fogelman,

586 F.2d 337 (5th Cir.

BOTOL ceeeees “eneee oeeeeeeeneeeee 30

(viii)

Pages

United States v. Freeland,

562 F.2d 383 (6th Cir.

ROTTS waeeedudnneewes Choe enas on 54

United States v. Freeman,

579 F.2d 942 (5th Cir.

1976) scccveeensoececce eer, eS a

United States v. Henry, 615

F.20 Laas (SCR CLF. 1960) ces 53

United States v. Homberg, 546

F.2d 1350 (9th Cir. 1976)..... 52

United States v. Kroll, 481

Voaa Gee teen Cake ESS cececs 54

United States v. Lopez, 328 F.

Supp. 1077 (E.D.N.Y. 1971).... 51

United States v. Martin, 562

F.2d 673 (D.C. Cir. 1977)..... 31,32, 38

United States v. Resnick, 455

F.24 ila? (Sth Cif. A2P7ad cccce 25,32

United States v. Rodriguez-

Gastelum, 569 F.2d 482

(9th Cal. es i ere ener eeeee 60

United States v. Ruiz-

Estrella, 481 F.2d 723

(2d Gar. 5 2) Pe “ee eoeeeeee . 53

United States v. Skipwith,

482 F.2d 1272 (5th Cir.

ROT El ose bbeenden keene ene eo 8 2 8 2 Be. >. 54

United States v. Slocum, 464

F.2d 1180 (3d Cir. 1972) ..cee- §1,52

(ix)

Pages

United States v. United States

cypsum Co., 333 U.S. 364

(194 See Peers CCOSSeesceseenv esse 45

United States v. Young, 489

Dae wee. (een Cal. £974) .ccccse 30

United States Constitution:

Fourth Amendment........... ecccee 4

Sixth Amendment...... eeccecces woos 4

Statutes:

Be BoBeCe § 2 cccccccccccece cesee 5 5

21 U.S.C. § 841(a) (1)... cee 2. 3

21 U.S.C. § 952(a) .. ccc ccc ccccee oe

De metate © SEO. .ccccces eevee con ae §

8 A eee Terres 2, 5

Be Be@eSe § 1256(1). nc cccccces coe SZ

Other Authorities:

Note, 83 Harv. L. Rev. 62,

re SEWOPE cesecces hh vesecds ae

Note, 72 Mich. L. Rev. 128

ET Ga a 52

\

(x)

Pages

"Validity, Under Federal

Constitution, of Pre-Flight

Procedures Used at Airports

to Prevent Hijacking of

Aircraft," 14 A.L.R. Fed.

252 (1971)

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

No.

JOHN F. HENSLER, JR. AND CHARLES BATTY,

Petitioners,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Come now Petitioners, JOHN F. HENSLER,

JR., and CHARLES BATTY, and respectfully

pray that a Writ of Certiorari issue to re-

view the judgment and opinion of the United

States Court of Appeals for the Fourth Cir-

cuit entered July 23, 1980, rehearing en

banc denied August 26, 1980.

-2-

OPINIONS BELOW

Petitioners were convicted on December

12, 1978, in a bench trial in federal Dis-

trict Court for the District of South

Carolina of conspiracy to import marijuana

(21 U.S.C. §963), importation of marijuana

(21 U.S.C. §§952(a), 960; 18 U.S.C. §2) and

possession of marijuana with intent to dis-

tribute (21 U.S.C. §841(a) (1); 18 U.S.C. §

2). On July 23, 1980, the Court of Appeals

for the Fourth Circuit affirmed the judg-

ment. A copy of this Opinion is attached to

this Petition as Appendix, Exhibit A. Re-

heacing and rehearing en banc was denied on

August 26, 1980. A copy of this Order is

attached to this Petition as Appendix, Ex-

hibit B.

JURISDICTION

In the criminal trial below, among

other issues, Petitioners challenged the

—_—

-3-

legality of a warrantless search of the

locked cabin of a sailboat, and the war-

rantless search of Petitioner Hensler's

Suitcase at an airport security gate as re-

pugnant to the Fourth Amendment to the

Constitution. Additionally, Petitioner

Batty challenged the admission of his con-

fession as contrary to the Fifth and Sixth

Amendments to the Constitution.

Petitioners' Motion for Rehearing En

Banc was denied on August 26, 1980. The

Chief Justice entered an Order on October

15, 1980, extending the time for filing a

Petition for Writ of Certiorari to and

including November 24, 1980.

The jurisdiction of this Court is

invoked under 28 U.S.C. §1254(1l).

-4-

CONSTITUTIONAL PROVISIONS INVOLVED

The Fourth Amendment to the United

States Constitution provides:

The right of the people to be

secure in their persons, houses,

papers and effects, against un-

reasonable searches and seizures,

shall not be violated, and no

warrants shall issue, but upon

probable cause, supported by

oath or affirmation, and part-

icularly describing the place

to be searched, and the person

or things to be seized.

The Sixth Amendment to the United

States Constitution provides, in pertinent

part:

In all criminal prosecutions,

the accused shall have the

right...to have the assistance

of counsel for his defence.

STATEMENT OF THE CASE

Petitioners JOHN F. HENSLER, JR. and

CHARLES BATTY were named, along with a third

-5-

individual, Michael C. Falker,? in a three-

count indictment. Count 1 alleged conspir-

acy to import approximately 21,000 pounds of

marijuana (21 U.S.C. §963); Count 2, impor-

tation of marijuana (21 U.S.C. §§952(a),

960; 18 U.S.C. §2); Count 3, possession

with intent to distribute (21 U.S.C. §

841(a) (1); 18 U.S.C. §2). A. g-11.7

Pretrial motions were filed, and evid-

entiary hearings held on three Motions to

Suppress relating to: the search of the

sailboat Desiderata-D; the airport search of

Petitioner Hensler's luggage; and Petitioner

Batty's oral confession. All were denied.

A. 199; 240; 261. Trial by jury was waived,

and the District Court found both Peti-

tioners guilty on all three counts. A.

las of this date, Falker has not yet

been arrested and remains a fugitive. App.

2s Nele

2 "A." refers to the Appendix filed in

the Court of Appeals. "App." refers to the

Appendix to this Petition.

-6-

371-319. Petitioner Hensler was sentenced

to serve a term of five years imprisonment

on Count l, one year imprisonment on Count

2, and five years imprisonment on Count 3,

the sentences on Counts 1 and 2 running

consecutive, with Count 3 to run concurrent.

Additionally, a special parole term of five

years was imposed. A. 16. Petitioner Batty

was sentenced to serve a term of four years

on each count, all sentences to run concur-

rently, followed by a special parole term

of four years. A. 18.

At pretrial hearings, the evidence

showed the following events relative to the

legal questions here involved:

On August 29, 1977, the sailboat Des-

iderata-D ran aground on a sandbar in

Murrell's Inlet, South Carolina. A. 23. At

approximately 4:00 P.M. the following day,

officers from a number of agencies boarded

the grounded vessel without a search war-

oo Fan

rant, broke a lock off of its main hatch and

seized approximately 21,000 pounds of mari-

juana from its cabin. A. 78.

The boat first came to the attention

of law enforcement around noon the day of

the search, when Detective Johnson received

a phone call from an unknown individual

stating that he had some information relat-

ing to marijuana on a grounded boat near

Garden City. A. 42-43. Johnson arranged to

meet him later, A. 23-24, and then went to

lunch with SLED Agent Anderson. A. 43-44,

58, 62, 63.

The officers then drove to meet the

caller. A. 55, 63. A young man, who ident-

ified himself as Carson Benton, approached

them and asked if they could pay him for in-

formation about marijuana. A. 56. Anderson

agreed to "take it up with my boss," A. 56,

and Benton took them and pointed out the

sailboat on a sandbar about a quarter of a

~~ =

mile away. A. 31, 56-57. Benton then

showed them a napkin with a half a gram of

marijuana in it, saying, “If it's marijuana

that boat is loaded." A. 57. Benton did

not tell the officers where he had gotten

the marijuana, or how he concluded the boat

had marijuana aboard, A. 26, 27-28, 40, 57-

58, nor was he asked how he obtained his in-

formation. A. 26-27, 57. Neither officer

had seen or talked to Benton prior to this

occasion. A. 24, 55, 65.

Anderson called Georgetown Sheriff

Carter to join them and, after meeting at a

nearby intersection, took him to a spot

‘where they could view the boat, A. 28, 29,

40, 58, 59, after which the Sheriff summoned

a deputy and boat. A. 59.

Customs had received a call on the

sailboat, A. 74-75, 82, and sent three off-

icers to investigate, with instructions to

set up surveillance. A. 85, 123. Upon arr-

~~

iving, they joined the other officers, A.

29, 59-60, 75-76. The Customs officers had

no knowledge of where the boat came from or

how it came to be grounded on the sandbar;

they did not know who owned the boat and

made no effort to ascertain this. A. 73,

86-88. After finding the tide too low to

launch the boats, the officers traveled back

up through Garden City and to the point

where Benton had met Anderson and Johnson,

where they could launch the boats. A. 29-

30, 42-44, 60.

The Customs officers indicated their

desire to set up surveillance of the boat.

A. 124. Sheriff Carter, however, insisted

on an immediate search, and, despite being

told by a Customs officer that he would need

a search warrant, A. 337, 442, 9, 10, indi-

cated that he already had some marijuana

from the boat, and had a boat on the way out

to unload it. A. 124. Although they went

-ji10-

along to assist Carter, Customs officer

Southern felt they "didn't go on there as

far as Customs was concerned." A. 337,

qW2-4.

The Desiderata-D which was "stuck up

on the sandbar" was approached on foot by

the officers, who had to leave their boats

and wade the last stretch because the tide

was out, and boarded. A. 24-30, 42-43, 60.

After boarding, the officers noticed a

strong smell of marijuana on the boat.

Finding that all the hatches were secured,

they broke a lock off the main hatch, ent-

ered and seized the contents, A. 32, includ-

ing pictures later found to show Petitioner

Batty. A. 319-330. This was all carried

Out without a warrant, despite the large

number of officers involved, and the passing

of some four hours between the tip and the

warrantless search on a weekday afternoon.

A. 21-22, 61.

-ll-

Rejecting the Government's contentions

that Petitioners did not have standing be-

cause the boat had been abandoned, A. 162-

64, 168, and a Customs-border search ra-

tionale because the search was "made under

the direction and at the insistence of Sher-

iff Carter." A. 168, the District Court

found that the warrantless search was just-

ified by exigent circumstances due to the

need to post a guard while a warrant was

procured, A. 170, 197-98, and that the boat

was threatened by "the whims of the water

and the tide and the wind and the sea." A.

198-99. Similarly, the Court of Appeals

ruled that the warrantless search was just-

ified by exigent circumstances relating to

the condition of the Desiderata-D, stating:

She had no line ashore, no anchor,

indeed no moorings of any sort.

Heeling at about 45 degrees with

the tide, to all appearances she

was quarry both to storm and

stealth, to be carried out to sea

or to the bottom, or towed to a

more ready location for the dis-

-12-

charge or dispersing of drugs.

App., p- @a. (Emphasis in

original.)

The Opinion contained no citation to the

record for these findings.

Petitioner Hensler also challenged the

legality of a warrantless search of his lug-

gage at a security gate at the Pittsburgh,

Pennsylvania airport, some six weeks prior

to the seizure of the Desiderata-D. A. 244-

61. Officer Marx testified that Hensler's

bag was opened over his protest because he

had entered the security area. A. 252.

Marx questioned Hensler about the money, and

submitted a report to the F.B.I. A. 247.

The Court denied the Motion, A. 26l, and

subsequently considered testimony concerning

Hensler's statements in its decision to

convict Petitioner Hensler. A. 291, 304.

Petitioner Batty moved to suppress an

oral confession taken some two months prior

to trial when he was arrested for a traffic

=} 3a

offense and an outstanding warrant was

found. A. 202. After being released when

his traffic case was continued, Batty was

arrested and handcuffed outside the court-

room by DEA Agents Simkins and Boeri.

Batty's rights were read to him and the

agents put him in a car to transport him to

Boston. Simkins asked Batty if he had an

attorney, and he replied that he did, but

that he was not present, although he had

been contacted. A. 207. During the drive,

the agents questioned him about the pending

charges in South Carolina, eliciting a de-

tailed account of the offense. A. 209.

Upon arriving in Boston, Batty refused to

write out a confession, and only signed a

waiver form after significant alterations.

A. 214-17. Batty testified he had had no

sleep the night before due to the subfreez-

ing temperature in his jail cell, A. 225,

and that he made the statements only after

-14-

Agent Simkins assured him the conversation

was “off the record," A. 231, which Batty

believed was "a general conversation and

couldn't or wouldn't be used against me." A.

231. The Court found that the confession

had been given after a valid Miranda warning

and was made voluntarily. A. 240-42.

The District Court denied Petitioners'

pretrial motions and, at a bench trial, sub-

sequently convicted Petitioners on all

counts. The Court of Appeals for the Fourth

Circuit affirmed, addressing in its Opinion

only the issue relating to the warrantless

search of the Desiderata-D. App. A.

REASONS FOR ALLOWING THE WRIT

he

THE DECISION BELOW IS CONTRARY TO

THE DECISIONS OF THIS COURT AND THE

FOURTH AMENDMENT TO THE CONSTITUTION

IN _UPHOLDING THE WARRANTLESS SEARCH

OF THE CABIN OF A GROUNDED SAILBOAT

IN THE ABSENCE OF BOTH PROBABLE

CAUSE AND EXIGENT CIRCUMSTANCES.

-15-

After hearing testimony, the District

Court orally denied Petitioner's Motion to

Suppress the search and seizure of the Des-

iderata-D some 18 to 24 hours after it ran

aground on a sandbar in intercoastal waters

near Murrell's Inlet, South Carolina. A.

156, 74. The District Court held that the

actions of the officers were justified with-

out a search warrant due to what the Court

felt were exigent circumstances. A. 199.

In reaching this decision, the District

Court rejected the Customs-border search

rationale, A. 168, and alleged abandonment

theories, A. 167-168, advanced by the Gov-

ernment, A. 182-186, 162-164, and also found

that both Petitioners had standing to con-

test the search of the boat. A. 168. The

Court of Appeals affirmed this decision,

adding its own interpretation of what exig-

ent circumstances existed. App. A., p. 8.

Petitioners respectfully submit that these

-~16-

Opinions are contrary to the decisions of

this Court and contrary to the Fourth

Amendment to the Constitution for two rea-

sons. First, that the information known to

the officers at the time of boarding fell

far short of probable cause and was based

entirely on the unsubstantiated tip of an

unp.coven informant. Second, that even

assuming arguendo that the officers had

sufficient probable cause, there was ample

time and opportunity to attempt to obtain a

valid search warrant for the boat.

A. Probable Cause

In a definition still viable thirty

years since its writing, this Court defined

probable cause in the following manner in

Brinegar v. United States, 338 U.S. 160

(1949):

[I]t has come to mean more than

bare suspicion: Probable cause

exists where 'the facts and cir-

cumstances within their [the off-

-l17-

icers'] knowledge and of which

they had reasonably trustworthy

information [are] sufficient in

themselves to warrant a man of

reasonable caution in the belief

that' an offense has been or is

being committed. Id. at 175, 176.

Where the officers have received in-

formation from an informant on which they

base all or part of their belief of probable

cause, this Court has held there must be a

sound basis for concluding that the inform-

ation is credible or his information reli-

able and also it must state the underlying

circumstances from which the informant ob-

tained his information. Aguilar v. Texas,

378 U.S. 108 (1964); Spinelli v. United

States, 393 U.S. 410 (1969). Absent such

background information, the officers must

verify the credibility of the informer and

tip through corroborating circumstances.

Draper v. United States, 358 U.S. 307 (1959).

A careful review of the record below

demonstrates that the Government's showing

-18-

in the instant case as to both probable

cause and the basis for relying on the in-

formant's tip were deficient under these

well-established standards.

The Desiderata-D first came to law en-

forcement's attention from a telephone tip

at about noon the day of the search. A. 20-

23. Before this, neither the officers, nor

any of their agencies had any information on

the boat at all. A. 23, 58, 62, 73. The

officer had never met or used their tipster

before, A. 47, 55, 65, and, after lunch,

drove 26 miles to meet him. A. 24. Before

providing any information to the officers,

Benton "asked if we could pay him some money

for some information, how much money we

could pay him." A. 56. Anderson said he

would take it up with his boss. A. 56.

Benton took them to the point and identified

the Desiderata-D which was grounded on a

nearby sandbar. Id. Then, as described by

——

~19-

Anderson, Benton showed them something:

He had a Kleenex or a small piece

of paper, soft like this, and he

had maybe a half a gram, not hard-

ly half a cigarette, the amount it

would take to roll a cigarette;

and he said what does that look

like? I said it looks like mari-

juana. He said if it's marijuana

that boat is loaded. A. 57. (Em-

phasis added.)

Benton did not indicate the marijuana

"sample" came from the boat, or how he came

to his conclusion that the boat contained

marijuana. > Nor did either officer make

this vital inquiry of Benton, as Johnson

testified:

Q: And what if anything did he

[Benton] tell you in addition

to giving you the napkin and

Saying it had come from the

boat?

A: [Johnson]: I don't believe he

said it came from the boat.

3That the "sample" actually came from

the Desiderata-D is questionable in light

of its locked condition when boarded by

officers that afternoon, a doubt that even

Customs Officer Southern expressed. A.

337, 412.

20-

He just asked us do you think

this is marijuana. A. 26.

(Emphasis added.)

Q: Would you state whether or not

he told you he had been on the

boat, or do you recall?

A: I don't recall. He said mari-

juana. That was it. A. 27.

Anderson testified almost identically on

this critical point:

Q: Did he tell you how he had come

into possession of that sample?

A: [Anderson]: I did not ask him.

A. 57. (Emphasis added.)

Nothing the officers observed or did

subsequent to this meeting corroborated in

any way the substance of the Benton tip.

Nothing about the "sample" of marijuana--

its quantity, color, or other characteris-

tics--indicated the marijuana came from the

boat (which even Benton did not state).

Benton did point out a sailboat, which, as

both officers could readily observe, was

indeed grounded on a nearby sandbar. A. 57.

This, of course, is no reason to believe

that it contained marijuana, and did not

-21-

corroborate Benton's tip that it did.

The officers did not determine from

where the boat had come, nor did they know,

or attempt to ascertain, the ownership of

the vessel prior to boarding. A. 86, 87.

The deficiencies of the Government's

showing of Benton's reliability are fatal.

Where the officers, as here, do "not know

the informant it would be impossible for

[them] to vouch as to the informer's reli-

ability." McCreary v. Sigler, 406 F.2d

1264, 1269 (8th Cir. 1969). See also,

Aguilar, supra, and Spinelli, supra. When

an informant is further motivated by efforts

to obtain financial reward, his information

and reliability require even more careful

scrutiny. Here, Benton requested money even

before speaking with the officers, A. 56;

after the seizure, he called Anderson seek-

ing his "reward," A. 65, and Anderson was

"sure" that Benton received some money. A.

-22-

66. See also, Note, The Supreme Court,

1968 Term, 83 Harv. L. Rev. 62, at 181

(1969).

Benton clearly fit into this category.

He was not a victim or a bystander eyewit-

ness reporting to the police what he had

suffered or observed, where the underlying

circumstances demonstrate his first-hand

knowledge. Cf., United States v. Bell, 457

F.2d 1231, 1238-39 (5th Cir. 1972); McCreary

v. Sigler, supra. From the officers' per-

spective, he was an unknown individual, who

had never previously furnished information

nor been proven reliable, who approached the

officers, unsolicited, and sought to sell

them information. His cooperation came only

after Anderson promised to take the matter

of payment up with his boss. A. 56.

The informant here also fails under

the second crucial prong of the Aguilar

test. There must be an allegation that the

-23-

informant personally observed the illegal-

ity, or:

In the absence of a statement de-

tailing the manner in which the in-

formation was gathered, it is esp-

ecially important that the tip de-

scribe the accused's criminal act-

ivity in sufficient detail that the

magistrate may know that he is re-

lying on something more substan-

tial than a casual rumor circulat-

ing in the underworld or an accu-

sation based merely on an indivi-

dual's general reputation... [or]

obtained from an offhand remark

heard at a neighborhood bar...[or

fabricated] out of whole cloth.

Id. at 416-17.

The officers did not even determine

from Benton if he had been on the boat, A.

27, or the location from which he obtained

the tiny quantity of marijuana he showed

them. ["I don't believe he said it came

from the boat."] A. 26. See also, A. 57.

When the information available to the

officers at the time they boarded and

searched the Desiderata-D is analyzed, it

falls far short of the requisite showing of

probable cause as defined in Brinegar, supra.

-24-

This search was based on the uncorroborated

statement of Benton in describing the "sam-

ple" of marijuana, "...if it's marijuana

that boat is loaded." A. 57. Such a conclu-

sory assertion by an unproven informant with-

out any corroboration was insufficient prob-

able cause to board and search the Desider-

ata-D, and the District Court erred in fail-

ing to grant Petitioner's Motion to Suppress.

B. Exigent Circumstances

This Court has repeatedly recognized

that "[W]arrantless searches are per se un-

reasonable unless they fall within some est-

ablished exception to the warrant require-

ment,..." See, e.g., United States v.

Chadwick, 433 U.S. 1 (1977); Marshall v.

Barlow's, Inc., 436 U.S. 307, 312 (1978);

Michigan v. Tyler, 436 U.S. 499, 508 (1978).

See generally, Coolidge v. New Hampshire,

403 U.S. 443, at 455 (1971).

“gee

In denying Petitioner's Motion to Sup-

press in the instant case, the Courts below

specifically relied on a finding of exigent

circumstances. A. 199. A careful review of

the record, however, indicates that such a

finding is not justified by the testimony of

the officers who carried out the warrantless

search because the Government failed to meet

"the stringent burden...of bringing itself

within one of the narrowly drawn exceptions

and of showing the exigencies of the situa-

tion made it imperative to proceed ‘outside

the judicial process, without prior approval

by judge or magistrate.'" United States v.

Resnick, 455 F.2d 1127, 1131 (5th Cir. 1972).

The events leading to the search of

the grounded sailboat commenced with the

telephone tip at about noon from Benton to

Detective Johnson, who was in his office at

the Horry County jail, directly behind the

County Courthouse. A. 21, 22.

-26-

The officers were eventually directed

by Benton to a point from which they could

view the Desiderata-D on a sandbar, about

one-quarter mile away, A. 57, where it had

been stranded since its grounding some 18-20

hours before. A. 156. The boat "was tilted

over--not on its side, but it was tilted."

A. 68. Anderson confirmed that the boat was

"[s]tuck up on a sandbar," Id. Customs

Officer Puig, who was the only officer to

state that he had some familiarity "with

boats and things of the sea" A. 88, agreed

that at the time he boarded it the boat was

not mobile. A. 88-89.

The Customs officers had instructions

from their supervisor to set up surveillance

on the boat to identify anyone trying to get

on the boat. A. 76, 85-86, 124. However,

according to Customs Officer Southern,

Sheriff Carter insisted on searching the

boat immediately:

=-27=

Well, we told him that we would

like to do it. He said, well, it's

not necessary since he already had

a boat in the water with a deputy

and that he was going’ to unload

the boat, unload the vessel. A.

124.

See also, Defendants' Exhibit 10. A. 337,

qs.

When the officers arrived, they boarded

it, checked the hatches and found it "locked

up and secured." A. 77. Puig testified

that after boarding the vessel he noticed "a

strong odor of marijuana." They broke off

the lock on the main hatch and began to re-

move the contents. A. 77-79.

At the conclusion of testimony on Pet-

itioner's Motion, the District Court indi-

cated its intention to deny the Motion on

the basis of exigent circumstances, with the

following comments:

THE COURT: ...Now, gentlemen, here

you have a boat that is lying on

its side subject to the sea, the

tide, subject to somebody coming

aboard it. The Sheriff knew it

-28-+

had marijuana in it. The whole

boat was being torn up by the

tide or carried out to sea or the

material in it was destroyed and

the boat blown up or anything

happening, anything could happen.

I can't imagine a more exigent

situation that existed at that

moment when the Sheriff wanted to

go out. I'll be glad to hear

from you. I can't understand

more exigent situations than

existed at that time. A. 168.

Although the Court admitted recogniz-

ing that there was no testimony from the

officers to the effect that they perceived

these emergency conditions and acted because

of them, A. 189, 197, the Court nonetheless

felt that the search was justified by the

exigencies.

One of the "few specifically estab-

lished and well-delineated exceptions,"

Coolidge, supra, at 455, to the warrant re-

quirement is based on the concept of mobil-

ity of the subject area to be searched.

This exception, as applied to searches of

attended, operable vehicles stopped on the

-29-

open hig) vay was announced in Carroll v.

United States, 267 U.S. 132 (1925).

In Chambers v. Maroney, 399 U.S. 42

(1970), this Court stated:

Neither Carroll, supra, nor other

cases in this Court require or

suggest that in every conceivable

circumstance the search of an auto

even with probable cause may be

made without the extra protection

for privacy that a warrant affords

---Only in exigent circumstances

will the judgment of the police

as to probable cause serve as a

sufficient authorization for a

search. Carroll, supra, holds a

search warrant unnecessary where

there is probable cause to search

an automobile stopped on the high-

way; the car is movable, the occ-

upants are alerted, and the car's

contents may never be found again

if a warrant must be obtained.

Hence an immediate search is con-

Stitutionally permissible. Id.

at 50-51. _

The mere fact that a potentially mob-

ile vehicle, such as an automobile, is in-

volved does not justify action without a

warrant. "[T]here is no general automobile

exception to Fourth Amendment requirements.

The movable nature of an automobile is not

-30-

enough. There must be exigent circum-

stances as well." United States v.

Fogelman, 586 F.2d 337, 342 (Sth Cir. 1978);

accord, Coolidge v. New Hampshire, supra,

at 462 (1971); United States v. Bradshaw, 490

F.2d 1097 (4th Cir. 1974); United States v.

Young, 489 F.2d 914, 916 (6th Cir. 1974).

As this Court has held, the exigent circum

stances exception to the warrant requirement

is “carefully defined to require the pre-

sence of circumstances indicating the risk

of loss of evidence." United States v.

Bradshaw, supra, at 1103. There must be a

real “emergency" based on the "special

facts" of the particular case. Schmerber v.

California, 384 U.S. 757, 770-71 (1966).

The exigent circumstances rationale

may apply to a "moving vessel” as well as to

a moving automobile. United States v.

Freeman, 579 F.2d 942, 948 (5th Cir. 1978).

In United States v. Carabello, 571 F.2d 975

-3]-

(5th Cir. 1978), the Court approved a search

of the vessel based on probable cause with-

out a warrant because it was in fact mobile,

being actually underway like an automobile

on a highway, Chambers v. Maroney, supra,

and because of

..-.the exigent circumstances sur-

rounding the events in question.

An immediate search was reason-

ably undertaken in view of the

inclement weather, the increasing

darkness, the vessel's unknown

destination on the Florida coast

and the consequent danger that

the vessel and its suspected con-

traband would escape interception.

Carabello, supra, at 977.

In each and every analysis applying

the exigent circumstances rationale, the

critical factor is the actual, rather than

potential, mobility, as discussed in United

States v. Martin, 562 F.2d 673 (D.C. Cir.

1977):

[T]he inherent mobility of the

object to be searched cannot,

without more, justify a failure

to secure a warrant. The ques-

tion in each case is not simply

-32-

whether the item searched is

movable; rather, the question

is whether, in light of the

"realities of the situation,'

there was a reasonable likeli-

hood that the item would be

moved before a warrant could be

obtained. Where the possibility

of movement is only remote or

Speculative, the police are .

Simply not confronted with the

kind of urgency which would ex-

cuse them from the warrant re-

quirement. Id. at 678. (Emph-

asis added).

The burden of proof in advancing this

limited exception is on the Government, and

it is a "stringent burden...of showing the

exigencies of the situation made it impera-

tive to proceed" without a warrant. United

States v. Resnick, supra, at 1131.

In the instant case, the Government

clearly failed to meet such a burden. As

the Court recognized, “there was no testi-

mony from Sheriff Carter or no testimony

from any witness that he went aboard because

he thought the boat would be taken up by the

tide and something would happen to the...

-33-

[evidence]." A. 189; see also, A. 197.

There was no testimony at all that

indicated the stranded boat was menaced by

the tides, winds, or weather conditions.

The witnesses uniformly described the tide

as low, with the boat sitting up on the

sandbar. A. 56, 68, 71, 77, 78. Moreover,

as the Court found, the boat had been at

that same location for approximately 18-20

hours. A. 156. The boat was easily ob-

served from numerous vantage points. A.

57,. 59, 60.

The officers' own actions belie either

the existence or feeling of an emergency

justifying an immediate, warrantless search.

The initial tip arrived at about noon. Be-~

fore checking it out, the officers: stopped

for lunch, made telephone calls, talked with

their informant Benton, viewed the boat,

called Sheriff Carter, met the Sheriff,

viewed the boat again, called in a boat and

-—34-

other officers, tried unsuccessfully to

launch the boats, moved to another location

across the inlet, and only then boarded and

broke into the locked boat, at approximately

4:00 P.M.

In light of the entire record, the

Government clearly failed to make a suffi-

cient showing of exigent circumstances.

Their "stringent burden" was not met, as

they failed to produce any testimony estab-

lishing a real and present danger to the

potential evidence contained in the Desid-

erata-D. The Court's own comments in ruling

indicate that the best the finder of facts

could characterize the Government's showing

was that it created inferences of potential

exigent circumstances. See especially,

comments at A. 197-99. See also, A. 195-96.

Inferences do not meet the requisite consti-

tutional standard of preponderance of the

evidence, Coolidge, supra, and these com-

-35-

ments illustrate the failure of proof sub-

mitted by the Government in meeting its

burden.

Further, there is an indication in the

record that the District Court's finding of

exigent circumstances may have been based on

an erroneous legal standard. The Court

twice stated its belief that:

--.-some of the cases hold that at

least I know the Fourth Circuit

cases hold that in an automobile

case if you have to place a guard

there, that's just as much an exi-

gent situation in that that in it-

self creates an exigent situation.

A. 170. See also, A. 197-98.

This is neither the law of the Fourth

Circuit nor the law of the land as estab-

lished by the precedents of this Court. See

United States v. Bradshaw, supra, at 1102-

1104; Coolidge v. New Hampshire, supra, at

461.

The underlying concept implicit in all

of the vehicle cases is that of mobility,

and that this mobility would deprive the

_ 36-

officers of the opportunity to obtain a

search warrant without risking loss or de-

struction of the evidence. Coolidge v. New

Hampshire, supra. See also, Chadwick, supra,

and Arkansas v. Sanders, 442 U.S. 753(1979).

The opportunity to obtain a search warrant

without any risk of such loss was evident in

the instant case. Sheriff Carter, A. 168,

simply and deliberately decided not to get a

search warrant. At least one of the offi-

cers on the scene, Customs Officer Southern,

disagreed with this decision and testified

as to his unsuccessful efforts to discuss it

with the Sheriff. A. 124; 125; 337, 48.

Southern also directly asked Sheriff Carter

"what authority he had to go aboard it

without a warrant..." A. 337, 42, and indi-

cated that he felt the Sheriff should have

4

gotten a warrant. Id., 49-10.

4southern's comments appearing in the

transcript, Defendants' Exhibit 10, A. 333-

38, were incorporated into the record with-

out objection. A. 313.

-37-

The instant case presente facts strik-

ingly similar to those presented to the

Fifth Circuit Court of Appeals in United

States v. Caraway, 474 F.2d 25 (5th Cir.

1973), vacated on other grounds, 483 F.2d

215 (5th Cir. 1973). Caraway involved the

warrantless search of the defendants’ un-

occupied houseboat. The agents arranged a

controlled delivery of marijuana to the

defendants at the marina where their boat

was located. The boat was unoccupied, and

one of its engines was dismantled on the

dock, suggesting that the boat might have

been inoperative. The Court held that the

Search, aside from being based on question-

able probable cause, was invalid because it

was conducted without a warrant (id. at 31),

specifically stating that "there was no

danger that the suspect vehicle would escape

from the jurisdiction," citing Chambers v.

Maroney, Supra, and emphasizing that the

-38-

Customs officers did not "possess any reli-

able information suggesting the necessity of

an immediate search." (Id.)

The instant case presents just such a

situation: the Desiderata-D was immobile

and not threatened by any forces which could

result in the destruction or removal of it

or its contents. As the Court in United

States v. Martin, supra, stated in similar

context:

'[T]he very term "exigency" com-

mands that analysis be shaped by

the realities of the situation

presented by the record." And in

the present case, the record simply

does not reveal a situation of un-

usual urgency. On the contrary,

the record makes it clear that the

agents here had ample opportunity

to secure a warrant; and that the

‘realities of the situation' were

such that a warrant could have

been obtained without imperiling

either the safety of those in-

volved, or the investigation it-

self. Id. at 677.

The insufficiency of the showing as to

exigent circumstances and the unexcused and

deliberate failure of the officers to obtain

-39-

a search warrant prior to boarding the Des-

iderata-D rendered the officers' boarding,

search, and seizure of the vessel and its

contents illegal. As a consequence, the

District Court erred in denying Petitioners'

Motion to Suppress.

If.

THE DECISION BELOW IS CONTRARY

TO THE DECISION OF THIS COURT

AND WELL-FOUNDED PRINCIPLES OF

APPELLATE REVIEW IN THAT THE

EVIDENCE FAILS TO SUPPORT THE

OPINION OF THE COURT OF APPEALS.

In its Opinion, the Fourth Circuit

concluded that the search of the Desiderata-

D was justified on the basis of "exigent

circumstances," App., p. 3a. and, due to

this fact, the officers were justified in

carrying out an "immediate seizure of the

vessel," id., p.7a, without first obtaining

a search warrant. The Opinion eloquently

articulates the following exigent circum-

stances in justifying this conclusion that

-40-

an immediate, warrantless search was re-

quired:

The Sheriff's and agents'

assessment of the situation as ex-

igent becomes manifestly accurate

upon allusion to the hazard of the

Desiderata-D. She had no line a-

shore, no anchor, indeed no moor-

ings of any sort. Heeling at about

45 degrees with the tide, to all

appearances she was quarry to both

storm and stealth, to be carried

out to sea or to the bottom, or

towed to a more ready location

for the discharge or dispensing of

drugs. Id., p.7a-8a. (Emphasis

in original).

Indeed, upon reading the foregoing,

one might well ask, what more exigent cir-

cumstances could exist? When would a war-

rantless search ever be more necessary or

justified?

The singular flaw in the Court's app-

roach is that the above description is with-

out basis in the Record upon which it ost-

ensibly relies (and to which it fails to

cite, on any occasion, as basis for the

facts recited). Even more tellingly, when

-4]-

that Record is reviewed, a full and fair

reading requires the conclusion that the

foregoing is not only baseless, but is, in

fact, contradicted at every point critical

to the finding of exigent circumstances

under controlling legal authority.

First, the Opinion alludes to "[t]he

Sheriff's and agents' assessment of the sit-

uation as exigent..." Id., p.7a- Not one

word of testimony at the Motion to Suppress

(where four officers testified to the cir-

cumstances surrounding the seizure) was to

the effect that any officer boarded the

vessel and searched without a warrant be-

cause of a fear that evidence was in danger

of being lost or removed. The District

Court recognized this critical absence in

its comments:

THE COURT: Well, I agree there

was no testimony from Sheriff

Carter or no testimony from any

witness that he went aboard be-

cause he thought the boat would

-42<

be taken up by the tide and some-

thing would happen to the---. A.

189; see also A. 197.

Moreover, at least one officer at the

scene, Customs Officer Southern, argued with

fellow officers at the scene against the

decision for an immediate search, asking the

Sheriff, "...what authority he had to go

aboard it without a warrant..." A. 337, 2.

Further, the actions of the officers

themselves clearly belie the District

Court's statement that the officers assessed

the "situation as exigent." App. p. 7a.

as set forth in detail above, Supra, pp. /7a-

10a.

A full and fair reading of the Record

below further demonstrates the reason behind

the inability of the Opinion to cite to

supporting testimony for its conclusion that

there were exigent circumstances: no such

evidence is contained in the Record. The

Opinion of the Fourth Circuit is accurate

o43e

when it states that the vessel had no “moor-

ings" or "line ashore." App., Pp. 8a. How-

ever, the Opinion fails to confront the

irrelevancy of this lack of restraints: the

boat was, in fact, high and dry on a sand-

bar. When the vessel was boarded and

searched by the officers, it "...was a-

ground. The tide was I guess just about

out. There wasn't much water around the

boat." A. 77. Customs Officer Puig, the

only officer familiar with maritime vessels,

agreed that at the time the Desiderata-D was

boarded, it was not mobile. A. 88-89. In

fact, the boat was grounded on such a shal-

low sandbar that when the officers finally

went out to board it, they had to park their

boat some distance away and walk up to the

boat. A. 24-30, 42-43, 60. To claim, as

the Opinion does, that the lack of moorings

to shore proves exigent circumstances in the

instant case is tantamount to the Court

-44-

finding in Bradshaw, supra, that exigent

circumstances were proved there by the fact

that the truck parked in the defendant's

back yard did not have any money in the

parking meter.

Nor does one word of testimony exist

in the Record as to any threat of tide,

storm, stealth, or towing. In fact, the

Record clearly reflects that the boat had

been in that exact location, in that exact

condition for some 18-20 hours previous to

the "emergency” search. A. 156.

In regard to the danger of removal,

the Court's Opinion is again contradicted by

the Record: the boat was easily surveilled

by the numerous officers from numerous van-

tage points, A. 57, 59, 60, and, as the

Court's Opinion recognized at page 4, the

vessel was unattended when it was boarded.

Moreover, these factors are strongly sup-

ported by the fact that Customs officers

-45-

determined, and had in fact been ordered to

set up surveillance rather than search the

boat, so as to determine who was involved

with it. This was obviously a contributing

factor to Officer Southern's dispute with

the Sheriff over his desire to effect an

immediate search without a proper warrant.

A. 76, 85-86, 124, 337.

This Court's decision in United States

v. United States Gypsum Co., 333 U.S. 364

(1948) long ago established the ground rules

for appellate review of fact findings: find-

ings of fact will not be set aside unless

"clearly erroneous." "A finding is 'clearly

erroneous' where although there is evidence

to support it, the reviewing court on the

entire evidence is left with the definite

and firm conviction that a mistake has been

committed." Id. at 395. It follows that a

"Clearly erroneous" ruling is demanded where

there is a total absence of evidence. See

-46-

Duke Power Company v. Carolina Environmental

Study Group, 438 U.S. 59 (1978).

Similarly, this Court stated in Roemer

v. Board of Public Works of Maryland, 426

U.S. 736 (1976) that "[i]t is not our place,

however, to reappraise the evidence, unless

it plainly fails to support the findings of

the trier of facts." Id. at 758 (emphasis

added).

Petitioners' case presents just such a

situation. The District Court, when dis-

cussing its decision based on "exigent cir-

cumstances" clearly admitted there was

"...no testimony from any witness that he

went aboard because he thought the boat

would be taken up by the tide and something

would happen to the---." A. 189. The Court

of Appeals, instead of examining the record

(especially in light of this admission by

the District Court) to determine if any

factual basis existed, chose to amplify the

~47=

speculation as to possible exigent circum-

stances by discoursing on the many possibil-

ities of emergencies that could arise if the

Situation were different from the one actu-

ally testified about. Both descriptions,

and their conclusions of the existence of

probable cause, are clearly contradicted by

the factual record in this case, and the

evidence plainly fails to support the find-

ings. A full and fair reading or the evid-

ence in this case demands a conclusion that

a mistake has been made, and relief must be

granted. To do otherwise erodes well-

founded principles of appellate review and

approves a conviction and sentence of in-

carceration based on a factual determination

unsupported by the evidence in the case. In

order to preserve meaningful access to app-

ellate review of factual findings by trial

courts in criminal cases, somewhere, some-

time, a line must be drawn. Petitioners'

-48-

case presents a clear and compelling factual

record for just such a determination, and

review should be granted to insure these

important principles of law.

IIil.

THE DECISION BELOW AS TO THE

WARRANTLESS SEARCH OF PETITIONER

HENSLER'S LUGGAGE AT AN AIRPORT

SECURITY GATE IS CONTRARY TO

WELL-ESTABLISHED PRINCIPLES OF

FOURTH AMENDMENT LAW AND CONTRI-

BUTES TO A CONTINUING AND CLEAR

CONFLICT BETWEEN THE DECISIONS

OF THE VARIOUS COURTS OF APPEALS

ON THIS ISSUE.

Prior to trial, Petitioner Hensler

filed a Motion to Suppress relating to the

warrantless search of his luggage at a sec~

urity gate at the Pittsburgh, Pennsylvania

airport on July 12, 1977. At the hearing on

Petitioner's Motion, Allegheny County Police

Patrolman Marx testified that while on duty

at the Pittsburgh airport on that date, he

was notified by a security guard that a bag

had been opened because, as the guard re-

-49-

ported to Marx, the operators could not de-

termine its contents from the x-ray machine,

which showed "...just one black spot through-

out the suitcase..." A. 246. Officer Marx

did not personally observe anything until

after Petitioner Hensler's bag had already

been opened and a large sum of money found

inside. A. 251. Marx never heard Hensler

give permission to search his bag, A. 252,

recalling that, "There was something about

he didn't want to open the bag and..[the

security guard] was explaining to him he had

to open the bag once he was in the security

area." A. 252. Marx further testified to

Hensler's evasive answers concerning the

money, improper identification and his des-

tination (Fort Lauderdale, Florida), and

that he filed a report containing this in-

formation with the F.B.I. This evidence sub-

sequently became the first overt act in Pet-

itioner's indictment, A. 9(2), and the test-

-50-

imony of Officer Marx was considered in the

Court's decision at Petitioners’ bench

trial. A. 291, 304.

At the same hearing, Petitioner

Hensler testified that after he placed the

bag on the conveyer to the x-ray machine and

walked through the magnetometer, "[The sec-

urity guard] said I have to open this, and

almost instantaneously she opened up the

suitcase;" A. 255. On cross-examination,

Hensler admitted to having flown in and out

of airports before, but stated he was

",..not that well knowledgeable as to what

the wording is" on signs at security gates.

No proof was ever submitted as to the ex-

istence of any signs at the airport where

Petitioner was searched.

The District Court denied Petitioner

Hensler's Motion to Suppress, specifically

relying on the Fourth Circuit's then-recent

decision in United States v. DeAngelo, 584

-5j-

F.2d 46 (1978), cert. denied, 440 U.S. 935

(1979), holding that similar circumstances

are “sufficiently suspicious" to authorize

a limited examination of luggage to deter-

mine if a gun or explosives posing "an im-

mediate danger" are present. DeAngelo also

held a valid consent based on warning signs

in the airport. A. 261. On appeal, the

Fourth Circuit found this contention to be

"without merit" and failed to dismiss this

point raised or to cite authority.

Searches at airport security gates

have been upheld pursuant to themes of:

probable cause plus exigent circumstances,

United States v. Lopez, 328 F. Supp. 1077,

1093 (E.D.N.Y. 1971); consent, United States

v. DeAngelo, supra; stop and frisk under

Terry v. Ohio, 392 U.S. 1 (1968), see United

States v. Epperson, 454 F.2d 760 (4th Cir.

1972); and pursuant to special concerns em-

bodied in the FAA hijacker profile, United

ne

-52-

States v. Slocum, 464 F.2d 1180 (3d Cir.

1972). See generally, Note, 72 Mich. L.

Rev. 128 (November 1973); "Validity, Under

Federal Constitution, of Preflight Pro-

cedures Used at Airports to Prevent Hijack-

ing of Aircraft," 14 A.L.R. Fed. 252 (1971).

The Ninth Circuit has undertaken the

most detailed analysis of this area, with a

series of holdings in direct conflict with

the approach in the Fourth Circuit. That

Circuit has vigorously applied existing

standards enunciated by this and other

Courts in analyzing consent, principally the

"totality of the circumstances" test estab-

lished by the Court in Schneckloth v.

Bustamonte, 412 U.S. 218 (1973). Of part-

icular importance to this analysis in rela-

tion to airport searches is as to the ex-

istence of an opportunity for the passenger

to decline a search and leave the boarding

area. United States v. Homberg, 546 F.2d

il Foo

4350 (Sth Cir. 1976), at p. 1352. ins

Ninth Circuit case with circumstances very

Similar to those here presented, that Court

held a warrantless search invalid due to a

failure of the Government to meet its burden

of demonstrating a knowing and voluntary con-

sent. United States v. Davis, 482 F.2d 893

(9th Cir. 1973). See also, United States v.

Henry, 615 F.2d 1223 (9th Cir. 1980).

A number of Circuit Courts of Appeals

have held that the passenger's knowledge of

a right to withdraw from the area to avoid a

search is a prerequisite to a valid search,

or at least an important factor in the

"totality of circumstances" test of consent.

United States v. Albarado, 495 F.2d 799 (2d

Cir. 1974); United States v. Ruiz-Estrella,

481 F.2d 723 (2d Cir. 1973); United States

v. Ciark, 475 F.24 240 (24 Cir. 1973):

Singleton v. Commissioner of Internal Reve-

nue, 606 F.2d 50 (3d Cir. 1979); United

=~ Rhu

States v. Freeland, 562 F.2d 383 (6th Cir.

1977). The Eighth Circuit has held that

posted warnings at airports advising passen-

gers that they are subject to search "...did

not constitute consent ‘in any meaningful

sense.'" United States v. Kroll, 481 F.2d

884, 886 (8th Cir. 1973).

As set forth above, the Fourth Circuit

does not recognize the passenger's knowledge

of the right to withdraw without a search in

undertaking an analysis of consent. Simi-

larly, the Fifth Circuit has held that

"...those who actually present themselves

for boarding on an air carrier, like those

seeking entrance into the country, are sub-

ject to a search based on mere or unsup-

ported suspicion." United States v. Skip-

with, 482 F.2d 1272 (5th Cir. 1973).

Petitioner Hensler presents a factual

record demonstrating a total absence of sus-

picious behavior such as would justify a

-55-

search under Terry, supra. Similarly, the

record is totally devoid of any proof of

Petitioner's consent to the warrantless

Search. The officers in the instant case

clearly felt that anyone entering the sec-

urity area had consented to a search, and

there is clearly no right to withdraw with-

out being subjected to a search. Finally,

the search herein, and especially the sub-

Sequent interrogation of Petitioner, result-

ing in evidence introduced against him at

trial, was far more intrusive than any

search justified to protect passengers

traveling on air carriers.

The clear factual record in Petition-

er's case, the failure of the Fourth Circuit

to confront the lack of authority under ex-

isting Circuit law to decide Petitioner's

search, and, most importantly, the continu-

ing conflict between the Circuits in this

area establish strong grounds for granting

certiorari in this case.

—

a

-56-

IV.

THE DECISION BELOW FAILED TO APPLY

THE CORRECT CONSTITUTIONAL STANDARD

IN ASSESSING THE ADMISSIBILITY OF

PETITIONER BATTY'S CONFESSION IN

THAT IT FAILED TO FIND A WAIVER OF

THE RIGHT TO COUNSEL.

The District Court admitted Batty's

confession finding that it had been given

after a valid Miranda warning and was made

voluntarily. A. 240-42. The Court of

Appeals affirmed without discussion. It

may well be argued that the confession it-

self was involuntary under due process

standards. There has been no demonstration

of voluntary waiver as required by Miranda

v. Arizona, 384 U.S. 436 (1966). But aside

from those constitutional guideposts, the

courts below may well continue to articulate

and evaluate the waiver standard only by ref-

erence to Miranda, in clear contravention of

the independent Sixth Amendment protection.

That right, asserted by this Court in

Massiah v. United States, 377 U.S. 201 (1964)

-57-

and reiterated in Brewer v. Williams, 430

U.S. 387 (1977) and Rhode Island v. Innis,

U.S. ___, 100 S.Ct. 1682 (1980), demands

that the Government, when on notice that an

indictee is represented by counsel, scrupu-

lously honor his right to counsel and demon-

strate to a high degree a voluntary waiver

of this right.

The uncontradicted testimony rendered

in the case at bar clearly demonstrates that

Petitioner Batty was interrogated while in

the custody of Drug Enforcement Administra-

tion agents during a trip from Gardner to

Boston, Massachusetts, while he remained

handcuffed. As noted in the recent case of

Rhode Island v. Innis, supra, at 1689:

-.-the term 'interrogation' under

Miranda refers not only to express

questioning, but also to any words

or actions on the part of the

police (other than those normally

attendant to arrest and custody)

that the police should know are

reasonably likely to elicit an

incriminating response from the

suspect.

-58-

Having determined that an interroga-

tion occurred, the Government failed to

carry its burden in showing that the Peti-

tioner understood and executed a voluntary

waiver of his Sixth Amendment right to

counsel. The record includes testimony by

Petitioner that he had no sleep on the night

before the interrogation as he was confined

in a subfreezing jail cell, suffered froma

condition of stress that had recently re-

quired hospitalization, A. 229, was arr-

ested, handcuffed and interrogated by DEA

agents. Testimony of DEA Agent Simkins

verifies that the first discussion of a

willingness to acknowledge and waive const-

itutional rights was in the Boston DEA off-

ice where the Petitioner refused to sign a

waiver of rights, insisted on adding the

language, "I do not choose to make any

statements" and struck out language, thus

evidencing his intention to exercise his

-59—

Fifth and Sixth Amendment rights. A. 214-

17, Defendant's Exhibit 6.

It is uncontested that before the int-

errogation began, the Government agents were

made aware that Petitioner was represented

by counsel and that counsel had been con-

tacted. A. 218, 231. Despite this aware-

ness, the agents showed no hesitancy toward

questioning their captive.

This conduct is clearly violative of

Petitioner's Sixth Amendment rights as

enunciated in Massiah v. United States,

Supra, and its progeny. This Court has

held in Brewer y. Williams, 430 U.S. 387

(1977), that a positive and certain Waiver

must be shown by the Government. In decid-

ing Brewer based on Sixth Amendment princ-

iples, this Court stated: ".,..once advers-

ary proceedings have commenced against an

individual, he has a right to legal repre-

sentation when the Government interrogates

him."

-60-

The Government bears a heavy burden to

show that the defendant understood that in

fact he had a right to the presence of

counsel during an interrogation and that the

defendant intentionally relinquished or ab-

andoned that known right. See Brewer v.

Williams, 430 U.S. 387 (1977); United States

v. Rodriguez-Gastelum, 569 F.2d 482 (9th

Cir. 1978). The Courts indulge every rea-

sonable presumption against waiver, and an

inferred waiver of a constitutional right is

disfavored. Estelle v. Williams, 425 U.S.

501 (1976).

In Brewer v. Williams, supra, the off-

icer and his prisoner embarked on a wide-

ranging conversation covering a variety of

topics, resulting in damaging admissions by

the defendant. The Supreme Court held that

there was no reasonable basis for finding

that the prisoner had waived the right to

the presence of counsel. The Court recog-

-6l-

nized that the police officer deliberately

and designedly set out to elicit information

from the prisoner just as surely as--and per-

haps more effectively than--if he had form-

ally interrogated him. The officer was ful-

ly aware that the prisoner was being repre-

sented by a lawyer in Des Moines.

In the case at bar, Batty was being

represented by counsel, and this was known

to Agent Simkins. The conversation during

the ride from Gardner to Boston was delib-

erately and designedly for the purpose of

eliciting information concerning his involve-

ment in the charges then pending against

him. Cf. Rhode Island v. Innis, supra.

Although Batty is an educated and int-

elligent man, the intelligence focused upon

in Miranda and its progeny is the knowledge

and understanding that the conduct in answer-

ing questions of the interrogating officer

constitutes a relinquishment of a constitu-

-62-

tional right. Batty did not intend to waive

his right to silence or counsel in discuss-

ing the charges with Simkins. This fact is

strongly supported by the testimony of

Simkins that Batty refused to sign a waiver

of rights and specifically wrote upon the

waiver form that he did not wish to make a

statement and did not wish to waive a law-

yer. This refusal to sign a waiver form or

even to give an oral waiver constitutes a

sufficient affirmative indication of the de-

sire to assert Fifth and Sixth Amendment

rights.

While the Court's decision in Nash v.

Estelle, 597 F.2d 513 (5th Cir. 1979) is

factually distinguishable from the case at

bar, reference to the Court's analysis is

illustrative. In Nash, the Court recognized

that:

where there is a request for an

attorney prior to any questions,

-.-a finding of knowing and int-

elligent waivér of the right to an

attorney is impossible.... Id. at

517.

In that neither the trial court nor

the Fourth Circuit Court of Appeals applied

the facts of this case to the Sixth Amend-

ment standard established by this Court in

Massiah, supra, and Brewer, supra, review by

this Court is appropriate in order to ana-

lyze the totality of the circumstances to

determine whether the Government carried the

heavy burden of demonstrating that Peti-

tioner Batty knowingly and intelligently

waived his right to counsel, and to clearly

establish the applicability of this Sixth

Amendment standard.

CONCLUSION

For the foregoing reasons, Petitioners

respectfully request that this Court issue a

Writ of Certiorari to review the judgment of

the Fourth Circuit.

-64-

Respectfully submitted,

James K. Jenkins

STROUP, GOLDSTEIN,

JENKINS & PRITZKER

900 Flat Iron Building

84 Peachtree St., N.W.

Atlanta, GA 30303

(404) 524-4343

Attorney for Petitioner

John F. Hensler, Jr.

Bruce H. Morris

DEVINE & MORRIS

4 Piedmont Center

Suite 11ll

3565 Piedmont Rd., N.E.

Atlanta, GA 30305

(404) 233-4141

Attorney for Petitioner

Charles Batty

Morris D. Rosen

Robert N. Rosen

ROSEN, OBERMAN & ROSEN

85 Broad Street

Charleston, South

Carolina 29402

Attorneys for Petitioners

—

CERTIFICATE OF SERVICE

I hereby certify that I have served a

copy of the foregoing Petition for Writ

of Certiorari to the United States Court

of Appeals for the Fourth Circuit and

Appendix upon the Solicitor General,

Department of Justice, Washington, D.C.,

20530, and upon the Honorable Lionel

Lofton, Assistant United States Attorney

for the District of South Carolina, United

States Courthouse, Meeting at Broad Streets,

Charleston, South Carolina.

This 24 day of November, 1980.

> ny

JAMES K. JENKYNS

la

UNITED STATES COURT OF APPEALS

For the Fourth Circuit

No. 79-5098

United States of America,

Appellee,

Vv.

John F. Hensler, Jr. and

Charles Batty,

Appellants.

Appeal from the United States District

Court for the District of South Carolina,

at Charleston. Sol Blatt, Jr., District

Judge.

Argued: February 2, 1980

Decided: July 23, 1980

Before BRYAN, Senior Circuit Judge, WIDENER

and HALL, Circuit Judges.

2a

James K. Jenkins (Stroup, Goldstein, Jac-

obs, Jenkins and Pritzker on brief) for

Appellant John F. Hensler, Jr.; Bruce H.

Morris (Devine & Morris on brief) for

Appellant Charles Batty; (Morris D. Rosen

and Robert N. Rosen, Rosen, Oberman & Ro-

sen on brief) for Appellants; Lionel S.

Lofton, Assistant U. S. Attorney (Thomas

E. Lydon, Jr., U. S. Attorney on brief)

for Appellee.

Albert V. Bryan, Senior Circuit Judge:

Convicted on each of the three counts

of a joint indictment!

, respectively char-

ging them with a conspiracy to import mar-

ijuana, 21 U.S.C. § 963, with the importa-

tion thereof, 21 U.S.C. §§ 952(a), 960; 18

U.S.C. § 2, and with the possession of

marijuana with intent to distribute, 21 U.

S.C. § 841(a)(1); 18 U.S.C. § 2, John F.

Hensler and Charles Batty appeal their

sentences. Common to, and decisive of,

I. Their trial, non-jury, was in the

Federal District Court for South Carolina,

but the third indictee, Michael C. Falker,

had not been apprehended and was still a

fugitive.

3a

all these accusations is the issue of

whether a grounded sailboat's cargo of

21,000 pounds of marijuana had been erro-

neously allowed in evidence at trial be-

cause it had been obtained by a search and

seizure violative of the Fourth Amend-

ment.2 With the District Judge, we think

not; though without a warrant, the search

and seizure was made under exigent circum-

stances and was based upon probable cause.

Hence, we affirm the convictions.

On the dominant issue, the proof,

taken on a motion to suppress, was not in

Zz; The Fourth Amendment states:

The right of the people to be secure

in their persons, houses, papers, and

effects, against unreasonable search-

es and seizures, shall not be viola-

ted, and no Warrants shall issue, but

upon probable cause, supported by

Oath or affirmation, and particular-

ly describing the place to be search-

ed, and the persons or things to be

seized.

U. S. Const. amend. IV.

4a

dispute and, as material, it follows. A

sailing vessel, the Desiderata D, on Aug-

ust 29, 1977, became stranded upon a sand-

bar at Murrell's Inlet, a domestic water-

way located along South Carolina's sea-

coast, near Garden City. On the next

morning, August 30--18 or 19 hours later--

she was boarded by three men, John Wayne

Strickland, Carson Benton and Bobby

Strickland, employed or residing in the

vicinity, who had learned of the vessel's

presence in the Inlet. They apparently

discovered marijuana stowed in the hold.

Returning ashore, Benton telephoned the

County Police Department and told Detec-

tive Johnson, a law enforcement officer of

eight years, that he had information con-

cerning marijuana aboard a sailing vessel

in the Inlet.

That afternoon Detective Johnson, ac-

companied by a South Carolina Law Enforce-

5a

ment Department agent, Anderson, met

Benton at a Garden City fishing pier. He

asked if they could pay him for some in-

formation about marijuana; then he told

them of the Desiderata D. At the same

time, he handed the officers a white pa-

per napkin containing a small amount of

marijuana, identified as such by Ander-

son and Johnson, the latter having worked

with marijuana for the last eight years.

According to Johnson, Benton told them

the boat was "loaded down" with it.

Soon they were joined by County

Sheriff Carter and a deputy, along with

three Customs Patrol Officers who had pre-

vious information of the stuck boat. Af-

ter circling the site from spot to spot

ashore, surveying for the most advanta-

geous approach, they determined, at the

Sheriff's insistence, to board her. The

boat was reached with a small boat and by

6a

wading. Concededly without a search

warrant, the Sheriff, the Customs Officers

and State and County Officers scaled the

deck and there whiffed a strong odor of

marijuana, whereupon they broke the lock

on one of the hatches and so exposed

21,000 pounds of contraband marijuana.

The boat and its contents were then

seized; there were no arrests since no one

else was seen aboard.

The trial judge, as do we, rested his

ruling upon the firmly precedented excep-

tion to the exaction of the Fourth Amend-

ment: that exigent circumstances can jus-

tify a search and seizure by police author-

ities without a warrant. When the subject

of the search is a movable vehicle, as

contrasted with a fixed edifice, such ex-

igency almost inevitably is present.

These cardinal points were early made

in Cavroii vy. U. &., 267 0.8. 132 (1925):

7a

On reason and authority the true

rule is that if the search and seiz-

ure without a warrant are made upon

probable cause, that is, upon a be-

lief, reasonably arising out of cir-

cumstances known to the seizing of-

ficer, that an automobile or other

vehicle contains that which by law

is subject to seizure and destruc-

tion, the search and seizure are

valid.

Id. at 149.

In reviewing the testimony relating

to the circumstances of the boarding and

taking of the Desiderata D, we consider

the evidence in the light most favorable

to the Government. With this in mind, we

hold the seizure on trial not to have been

unreasonable but, rather, to have been up-

on such probable cause as to justify the

boarders' belief that, in the circun-

stances confronting them as officers of

the law, duty demanded their immediate

seizure of the vessel.

The Sheriff's and agents' assessment

of the situation as exigent becomes mani-

8a

festly accurate upon allusion to the ha-

zard of the Desiderata D. She had no line

ashore, no anchor, indeed no moorings of

any sort. Heeling at about 45 degrees

with the tide, to all appearances she was

quarry both to storm and stealth, to be

carried out to sea or to the bottom, or

towed to a more ready location for the

discharge or dispensing of drugs.

The present application of these con-

clusions is not rendered unpersuasive or

defeasible by the neglect of the officers

to commission one of their number to ob-

tain a search warrant while leaving the

remainder to guard the vessel, a delin-

quency upon which this court vitiated the

search in United States v. Bradshaw, 490

F.2d 1097 (4th Cir. 1974). The Desidera-

ta D's preservation and protection were

impatient of hesitancy; opportunity for an

intermission of effort to take her was not

9a

assured.

As the Supreme Court has stated:

[W]e know of no case or

principle that suggests that

the right to search on prob-

able cause and the reason-

ableness of seizing a [ve-

hicle] under exigent circum-

stances are foreclosed if a

warrant was not obtained at

the first practicable moment.

Cardwell v. Lewis, 417 U.S. 583,

995 (1974).

Appellants further argue that the

District Court erred in denying Hensler's

motion to suppress evidence derived from

a previous search of his luggage at an

airport security gate, in admitting evi-

dence of Hensler's possession of a large

sum of money revealed in that search, and

in admitting a confession obtained from

Batty. In addition, appellants maintain

that the evidence was insufficient to con-

vict Hensler of importation and conspiracy

to import marijuana. We find these

10a

argunents to be without merit.

The judgments of the District Court

on appeal will be sustained.

Affirmed.

lb

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 79-5098

UNITED STATES OF AMERICA

Appellee

Vv.

JOHN F. HENSLER, JR.

and CHARLES BATTY

Appellants

ORDER

There being no request for a poll of

the court on the petition for rehearing en

banc,

It is accordingly ADJUDGED and OR-

DERE]) that the petition for rehearing en

banc shall be, and it hereby is, denied.

The panel has considered the petition

2b

for ehearing and is of opinion it is with-

out ierit.

It is accordingly ADJUDGED and OR-

DERE!) that the petition for rehearing

shal!. be, and it hereby is, denied.

With the concurrences of Judge Bryan

and Judge Hall.

s /

For the Court