Petition — Moore v. United States

[2h FILED

NOW 22 980

80-923 |

}

IN THE

SUPREME COURT OF THE UNITED ST&A'TRGHAEL RODAK, JR. CLERE

OCTOBER TERM, 1980

NO.

ROBERT GLENN MOORE,

MICHAEL ENGLISH,

Petitioners,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR

WRIT OF CERTIORARI

J. WILLIAM BEARD, JR.

5560 La Jolla Boulevard, Ste. E

La Jolla, California 92037

Telephone: (714) 459-4057

Attorney for Petitioner MOORE

MICHAEL J. MCCABE

SAVITZ & MCCABE

108 Ivy Street

San Diego, California 92101

Telephone: (714) 231-1181

Attorney for Petitioner ENGLISH

LAURA GOLDIN

GOLDIN & GORDON

1724 North La Brea

Post Office Box 46908:

Los Angeles, California 90046

Telephone: (213) 851-7200

Attorneys for Petitioners

MOORE and ENGLISH

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

NO.

ROBERT GLENN MOORE,

MICHAEL ENGLISH,

Petitioners,

VS.

UNITED STATES OF AMERICA,

Respondent.

QUESTIONS PRESENTED FOR REVIEW

1. Whether the search to which petitioners

were subjected was conducted at the functional

equivalent of the border so as to be characterized

as an extended border search.

2. Whether the five and one-half (5 1/2)

hour forcible detention of petitioners constituted

a de facto arrest requiring the giving of Miranda

warnings to petitioners prior to questioning.

TABLE OF CONTENTS

Page

Questions Presented For Reveiw ........ 1

Table of Contents .......... eovccsocoves 2

Table of Authorities ...cccccccccccvces 3

Reference to Opinion Below ....... teens 5

Jurisdictional GroundS ....-...eeeeeeeees 5

Constitutional Provisions and Statutes

Involved e*eeoeeeee#ee#ee#seeee#ee#e#e##e#e##e#e#ee#e#####e###*# 5

SCaCement GF Che COGS: ccccccsecesescerses 7

Argument 10

: No Competent Evidence of

Petitioners' International

Border Crossing was Intro-

duced. Therefore, the Ninth

Circuit's Reliance on the

Extended Border Search Rationale

in Upholding the Search of

Petitioners’ Aircraft and

Luggage waS Erroneous ....-.-.-.+e6- ° 10

II. The Over Five and One-Half (5 1/2)

Hour Forcible Detention of

Petitioners Constituted a De-

Facto Arrest Requiring the

Giving of Miranda Warnings to

Petitioners Prior to

GUBBEZOREOS occccsecuescseds tweese 16

CORE Woe eek ep ibb deed edeseeeaa™ cee 21

Proof of Service

Appendix "A"

Appendix "B"

TABLF OF AUTHORITIES

Cases

Alexander v. United States,

379 (9th Cir.

Almeida-Sanchez v.

1966)

362 F.2d

United States,

413 U.S. 266,

37 L.ED.2d 596 (1973)

93 §.Ct. 2535,

Castillo-Garcia v. United States,

424 F.2d 482 (9th Cir. 1970)

Chavez-Martinez v. United States,

407 F.2d 535 (9th Cir. 1969)

Dunaway v. New York, 442 U.S. 200,

Se ves SOUR BAETH) (os éeeacabnecocens

United States v. Brown, 557 F.2d

Pen Cee ey ACTS 66-06 bb bese eeeses

United States v. Chamberlin, 609

F. 1 ch tek BEM. deatecenecde

United States v. Ingham, 502 F.2d

Lae Se eee ROTOR 66 n oe cenesessces

United States v. Kessler, 497 F.2d

fg I Es Pe yf 5 eee

United States v. Mendenhall, U.S.

, 100 §.Ct. 1870, 1877 (1980)

United States v. Potter, 552 F.2d

Peas Cer. Gee Gals: LOTT) 0s 666 6.462.068

United States v. Solmes, 527 F.2d

aa) Wise Sore, Lote (een Cir. 1975)...

United States v. Strickler, 490

See: bcm are teen Gat. ERTS) écctcvne

Page

14,15,19

17,18

10,11,12,19

11,12

TABLE OF AUTHORITIES (Continued)

Cases Page

United States v. Tilton, 534 F.2d :

1363, 1366 (9th Cir. 1976) ..ccccceee 10,13,19

Statutes

28 G.8.6s Geetion L2sOt.) <oweccccsvvs 5

18 WiteGe Section 371 eee7#eee#e#e#e#eee#ke###e#*# i 6,9

18 0.8.6: SOGEIOR BOGO «cccecccccrves 19

18 U.S.C. Section 1001(a) .....---ee- 2,9

31 U.S.C. Section 110l(a) .......00e- 7,9

United States Constitution

Pourth AMONGMONE «<ccccscccecece sore wie 5

PASE PERS “oct ccecceetececccenss 6

Federal Rules of Evidence

Rule 801 (c) eoseeeeveeveoeeeene eevee ee eevee ee 16

REFERENCE TO OPINION BELOW

On August 14, 1980, the United States Court

of Appeals for the Ninth Circuit filed an Opinion

affirming petitioners' convictions. On October 22,

1980, petitioners’ Petition for Rehearing and

Suggestion for Rehearing En Banc was denied by

that Court. Copies of the Opinion and Order are

attached hereto as Appendix "A" and "B",

respectively.

The Opinion was certified for publication.

However, it has not yet appeared in print in the

Federal Reporter, Second Series, and, therefore,

petitioners do not yet have a citation for it.

JURISDICTIONAL GROUNDS

The judgment of the United States Court of

Appeals for the Ninth Circuit, was filed and

entered on August 14, 1980. A timely Petition

for Rehearing and Suggestion for Rehearing En

Bank was denied on October 22, 1980. Jurisdiction

of this Court is invoked pursuant to 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

The Fourth Amendment to the United States

Constitution:

5.

"The right of the people to be secure

in their persons, houses, papers, and

effects, against unreasonable searches

and seizures, shall not be violated,

and no Warrants shall issue, but upon

probable cause, supported by Oath or

affirmation, and particularly describing

the place to be searched, and the

persons or things to be seized."

The Fifth Amendment due process clause:

18

18

"No person shall .. . be deprived

of live, liberty, or property, without

due process of law..."

U.S.C. § 371, in pertinent part:

"If two or more persons conspire either

to commit any offense against the United

States, or to defraud the United States,

Or any agency thereof in any manner or

for any purpose, and one or more of such

persons do any act to effect the object

of the conspiracy, each shall be fined

not more than $10,000 or imprisoned not

more than five years, or both."

U.S.C. § 1001:

"Whoever, in any matter within the

jurisdiction of any department or agency

of the United States knowingly and will-

fully falsifies, conceals or covers up

by any trick, scheme, or device a material

fact, or makes any false, fictitious or

fraudulent statements or representations,

or makes or uses any false writing or

document knowing the same to contain any

false, fictitious or fraudulent state-

ment or entry, shall be fined not more

than $10,000 or imprisoned not more than

five years, or both."

31 U.S.C. § 110l(a), in pertinent part:

",. . . whoever, whether as principal,

agent, or bailee, or by an agent or

bailee, knowlingly--

(1) transports or causes to be trans-

ported monetary instruments--

(A) ‘from any place within the

United States to or through any place

outside the United States, or

(B) to any place within the United

States from or through any place out-

side the United States, or

(2) receives monetary instruments at

the termination of their transportation

to the United States from or through

any place outside the United States

in an amount exceeding $5,000 on any one

occasion shall file a report or reports

in accordance with subsection (b) of

this section."

STATEMENT OF THE CASE

On January 5, 1979, petitioners MOORE and

ENGLISH were forcibly detained at Palomar Airport,

a facility designed for small aircraft located in

north San Diego County, near Carlsbad, California.

Petitioners were leaving the airport in a taxi

cab when Carlsbad Police officers, guns drawn,

stopped the cab. Petitioners were then detained

for twenty (20) minutes in the rear of a caged

police vehicle while waiting for United States

Customs Officers to arrive from San Diego.

Petitioners were stopped and detained based

upon a radar sighting of what was alleged to be

7.

petitioners' aircraft. Respondent here, the

United States, alleged that the aircraft was

sighted in Mexican airspace on a superimposed,

video display map on the radar screen depicting

the international border. Petitioners stipulated

that a witness from San Diego Aircraft Approach

Control, if called, would testify that he had

read a Federal Aviation Administration manual

which stated the accuracy of the map. No

stipulation was entered into regarding the accuracy

of the map. Nor was any competent evidence

admitted on that issue. Petitioners' hearsay

objection and objection to the competency of

any such testimony was overruled, the trial

judge stating that the objection went to the

weight, not the admissability of the evidence.

Customs officers, upon arrival, asked

petitioners if they had anything to declare from

Mexico. Petitioners responded that they had

not been into Mexico. The customs officers then

searched petitioners' luggage, person and air-

craft. Twenty thousand dollars ($20,000) in cash

was found in petitioner MOORE's luggage. Marijuana

debris was found in the aircraft.

While the aircraft and luggage were searched,

petitioners were detained in the airport manager's

office. The currency was found within sixty (60)

seconds of arrival in the office. They remained

detained there for an additional five (5) hours.

Despite questioning, at no time during this

period were petitioners informed of their consti-

tutional rights per Miranda. Nor were they free

to leave.

Five and one-half (5 1/2) nours after their

forcible detention and de facto arrest, petitioners

were placed under arrest and warned per Miranda.

The intervening time had been spent in investiga-

tion and interrogation of petitioners.

Upon stipulated facts, petitioners were

found quilty of conspiracy in violation of

18 U.S.C. § 371 (Conspiracy to commit offense or

to defraud United States) and violation of 18 U.S.C.

§ 1001 (Statements or entries generally).

Additionally, petitioner MOORE was convicted of

a currency charge in violation of 31 U.S.C. § 1101.

The False statements and the currency were dis-

covered after petitioners’ detention and prior to

Miranda warnings.

ARGUMENT

I

NO COMPETENT EVIDENCE OF PETITIONERS'

INTERNATIONAL BORDER CROSSING WAS IN-

TRODUCED. THEREFORE, THE NINTH CIRCUIT'S

RELIANCE ON THE EXTENDED BORDER SEARCH

RATIONALE IN UPHOLDING THE SEARCH OF

PETITIONERS’ AIRCRAFT AND LUGGAGE WAS

ERRONEOUS.

A. It is fundamental that "[i]n order to

support a conclusion chat a search occurred at

the functional equivalent of a border" there must

be "articulable facts to support a reasonable

certain conclusion” that the vessel has in fact

crossed the border and entered the United States.

United States v. Potter, 552 F.2d 901, 907 (9th

Cir. 1977) quoting from United States v. Tilton,

534 F.2d 13€3, 1366 (9th Cir. 1976).

Customs officials are not at liberty to

search every vessel or vehicle which lands or

arrives near the international border. Before

a border search can be justified there must be

"articulable facts" to support the conclusion

that the vessel is arriving from outside the

United States. The same is true in searches at

the border's functional equivalent.

10.

“In Almeida-Sanchez v. United States,

413 U.S. 266, 93 S.Ct. 2535, 37 L.ED.2d

596 (1973), the Supreme Court held that

the great latitude allowed for searches

at the border also extends to the

border's functional equivalerts. The

Court gave as one example of searches

at the functional equivalent of the

border "a search of the passengers and

cargo of an airplane arriving at a St.

Louis airport after a nonstop flight

from Mexico City .. ." [citation]

"That the St. Louis airport is a func-

tional equivalent of the border does

not mean that customs agents may search

every plane wiiich lands there. Customs

agents do not have carte blanche auth-

ority to search aircraft arriving from

points within the United States merely

because nonstop flights from foreign

countries also land there. An airport

is a functional equivalent of the

border only with respect to those

airplanes arriving from outside the

United States.

United States v. Solmes, 527 F.2d 1370,

1372 (9th Cir. 1975).

Assuming, arguendo, the radar sighting of

petitioners' aircraft was sufficient evidence to

establish their presence approximately 15 miles

into Mexican airspace (see discussion infra), that

sighting did not establish that petitioners were

arriving from outside the United States.

The Ninth Circuit opinion relies on United

States v. Potter, 552 F.2d 901 (9th Cir. 1977) to

support its conclusion that a legal search at the

oS

functional equivalent of the border took place

here. The facts in Potter are distinguishable.

The basis for the search there was the observance

by U.S. Customs agents of Potter's aircraft as it

took off from El Paso International Airport and

lew towards Mexico. The aircraft was then

followed 150 miles into Mexican airspace. Customs

agents calculated the time it would take Potter's

plane to reach its projected destination in

Mexico and return to the United States. Subse-

quently, the aircraft was detected returning from

Mexico when it was about 53 miles south of the

border. Potter's aircraft was then followed as

it crossed back into the United States and landed.

Thus, it was observed leaving the United States,

traveling at least 150 miles into Mexico and

later returning from at least 53 miles south of

the border.

Similarly, in United States v. Solmes, 527

F.2d 1370 (9th Cir. 1975), Solmes' boat was

observed anchored off Puerto Santa Tomas, Mexico,

80 miles south of San Diego. The boat was subse-

quently observed in Mission Bay. See also United

States v. Ingham, 502 F.2d 1287 (Sth Cir. 1974)

12.

(vessel actually seen in foreign port or place);

Castillo-Garcia v. United States, 424 F.2d 482

(9th Cir. 1970) (automobile seen driving across

the border from Mexico).

In United States v. Tilton, 534 F.2d 1363

(9th Cir. 1976), the United States Court of Appeals

for the Ninth Circuit remanded the case "for a

post-conviction hearing on whether the boat came

from foreign or international waters" 534 F.2d at

1365. Without such a finding the border search

could not stand.

Here, petitioners were not spotted in Mexico.

Rather, a disputed radar signting (see discussion

infra) placed their aircraft 15 miles into Mexican

airspace. There fs no allegation that petitioners

were actually in Mexico, merely that they may have

crossed into Mexican airspace. Mere presence in

foreign airspace without more is not enough to

permit a search of the functional equivalent of

the border.

B. In ruling that the search and seizure

‘herein took place at the functional equivalent of

the border, the Ninth Circuit Court of Appeals

13.

has sanctioned the District Court's use of in-

competent evidence.

The evidence used to establish that peti-

tioners were in Mexican airspace was a super-

imposed, video display on the radar screen in-

dicating the location of the international border.

Continuous surveillance from a point outside

the United States to a point within the United

States is a necessary predicate to the extended

border search rationale. In order that the

surveillance is continuous and accurate, the

international border line must be defined

accurately. Castillo-Garcia v. United States,

424 F.2d 482 (9th Cir. 1970); Alexander v. United

States, 362 F.2d 379 (9th Cir. 1966).

The standard of reasonable certainty of entry

is a higher standard than that of probable cause.

United States v. Kessler, 497 F.2d 277 (9th Cir.

1974).

"Where, ...a search... by

Customs officers is not made at

or in the immediate vicinity of

the point of international border

crossing, the legality of the search

must be tested by a determination

whether the totality of the surround-

ing circumstances including...

14,

the manner and extent of surveillance,

are such as to convince the fact

finder with reasonable certainty that

any contraband which might be found

in or on the vehicle at the time of

search was aboard the vehicle at the

time of entry into the jurisdiction

of the United States.

Alexander v. United States, 362 F.2d 379,

382 (9th Cir. 1966).

The only evidence of surveillance and of the

fact of an international border crossing was

provided by the radar blip and the video map. In

order to admit that scientific evidence, the

principles upon which it is based must be suffi-

ciently established to have gained general accep-

tance in the field to which it belongs. United

States v. Brown, 557 F.2d 541 (6th Cir. 1977).

No demonstration of the accuracy, nor of the

general acceptance in the field of the radar video

map system was made. The only evidence about this

radar video map was the statements of an Air Traffic

Controller made to an investigator. The Traffic

Controller's information came from a technical

manual entitled, "Maintenance of Airport Surveil-

lance Radar Indicator Site Equipment." That manual

was not offered into evidence. —

15.

The statements made by the government

investigator about what the Traffic Controller

said about what the manual on radar video maps

said were out of court statements offered for

the truth of the matter asserted and, therefore,

hearsay. Federal Rules of Evidence, rule 80l(c),

defines hearsay and controls its admissibility

not the weight to be given the evidence as the

District Court ruled.

Assuming that mere presence in Mexican air-

space was sufficient to support the rationale

for an extended border search, the evidence which

purportedly established that presence was inadmis-

sable hearsay and there was, therefore, no

evidence to establish petitioners' presence in

Mexico and subsequent border crossing.

II

THE OVER FIVE AND ONE-HALF (5 1/2) HOUR

FORCIBLE DETENTION OF PETITIONERS CONST-

ITUTED A DE-FACTO ARREST REQUIRING THE

GIVING OF MIRANDA WARNINGS TO PETITION-

ERS PRIOR TO QUESTIONING.

Petitioners were forcibly required, at gun

point, to disembark from the taxi cab in which

they were riding and wait in the rear caged area

of a police vehicle. Such detention amounted to

16.

more than a mere investigative stop and consti-

tuted a de facto arrest. Dunaway v. New York,

442 U.S. 200, 99 S.Ct. 2248 (1979).

In United States v. Strickler, 490 F.2d 378

(9th Cir. 1974), that court found that the mere

fact that the vehicle in which the defendants

were riding was stopped and directed to the road-

side by officers with weapons drawn was sufficient

indicia of formal custody as to amount to a de

facto arrest.

Last term, this Court, said:

“[A] person has been ‘'seized' within

the meaning of the Fourth Amendment

only if, in view of all of the cir-

cumstances surrounding the incident,

a reasonable person would have believed

that he was not free to leave. Examples

of circumstances that might indicate a

seizure, even where the person did not

attempt to leave, would be the threaten-

ing presence of several officers, the

display of a weapon by an officer, some

physical touching of the person of the

citizen, or the use of language or tone

of voice indicating that compliance

with the officer's request might be

compelled."

United States v. Mendenhall, U.S.

100 S.Ct. 1870, 1877 (1980).

There can be no question that, in the instant

case, petitioners were "seized" within the meaning

17.

,

of the Fourth Amendment. They were not free to

leave. A finding that the five and one-half hour

detention here was a mere investigative stop

directly conflicts with the decisions of this

Court as well as decisions of the United States

Court of Appeals for the Ninth Circuit. See,

United States v. Mendenhall, supra; United States

v. Chamberlin, 609 F.2d 1318 (9th Cir. 1979).

Following a de facto arrest and prior to

any interrogation, procedural safeguards including

Miranda warnings, must be followed. No such

safeguards were followed here. All statements

and evidence obtained pursuant to those statements

is therefore tainted and must be disregarded.

Assuming, arguendo, that the detention here

did amount to an extended border search, procedural

safeguards were still required. Chavez-Martinez v.

United States, 407 F.2d 535 (9th Cir. 1969), held

that Miranda warnings must be given to one entering

the United States when the questioning agents

have probable cause to believe that the person

being questioned has committed an offense, or

the person is arrested whether with or without

18.

probable cause.

Here, the customs officers, if the Court

finds the requisite criteria of an extended

border search, had probable cause to believe

that an offense, or offenses, had been commit-

ted. In order to justify the extended border

search, the Court must find that the agents were

reasonably certain that the plane entered the

United States from Mexico. Alexander v. United

States, supra; United States v. Potter, supra;

United States v. Tilton, supra. This standard

of reasonable certainty is higher than probable

cause. United States v. Kessler, supra.

Therefore, when the statement by petitioners,

"we have not been to Mexico," was made, the

agents had probable cause to believe a false

statement in violation of 18 U.S.C. § 1001 had

been made. Thereafter, the officers discovered

the currency and marijuana debris. Each of

these facts, independently gave the officers

probable cause to believe petitioners had

committed a crime or crimes. Miranda warnings

were required. They were not given. Petitioners

i9.

were detained and interrogated five and one-half

hours. The evidence obtained during the time

was tainted and should have been suppressed.

20.

CONCLUSION

For the foregoing reasons, this Petition for

Writ of Certiorari should be granted and the

judgment and opinion of the United States Court

of Appeals for the Ninth Circuit reviewed.

Dated: November 20, 1980

Respectfully submitted, _

oe , ie P,

ra 4 “

ra -—

A J ow |

yy eden AS oa

J. WILLIAM BEARD, JR.

Attorney for Petitioner MOORE

’

MICHAEL J. M¢CABE

SAVITZ & MCCABE

Attorneys for Petitioner

ENGLISH

LAURA GOLDIA

GOLDIN and GORDON

Attorneys for Petitioners

MOORE and ENGLISH

21.

PROOF OF SERVICE

I, the undersigned say: I am over 18 years

of age, employed in the County of San Diego,

California, in which County the within-mentioned

mailing occurred, and not a party to the action.

My business address is 5560 La Jolla Boulevard,

Suite E, La Jolla, California 92037.

On November 20, 1980, I deposited in the U.S.

mail, at San Diego, California, in the above-

entitled action, in an envelope bearing the

requisite postage, a copy of PETITION FOR WRIT

OF CERTIORARI FOR ROBERT GLENN MOORE AND MICHAEL

ENGLISH, Petitioners, to the following:

Solicitor General of the United States

Honorable Wade McCree

Department of Justice

Washington, D.C. 20430

I declare under penalty of perjury that

the foregoing is true and correct. Executed on

this 20th day of November, 1980, at La sa

OO as

Y '.

California. to Y, Sf,

iy w ey

pO" as f 7 | eh

— SK / mK

J. WILLIAM BEARD, JR.

Filed in the Court of Appeals

Ninth Circuit

August i4, 1980

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 79-1416

DC No. 79+0045

Criminal

vs.

ROBERT GLENN MOORE,

Defendant-Appellant.

UNITED STATES OF AMERICA,

No. 79-1417

Plaintiff-Appellee,

DC No. 79-0045

vs. Criminal

MICHAEL ENGLISH, OPINION

Defendant-Appellant.

ed ee ee

Appeal from the United States District Court

for the Southern District of California

Before: CHOY, ANDERSON and PREGERSON, Circuit

Judges.

CHOY, Circuit Judge:

On stipulated facts, Moore and English were

convicted of conspiracy and making false statements

to customs officers, 18 U.S.C. § 1001; Moore was

also convicted of bringing more than $5,000 cash

into the country without reporting it,

APPENDIX "A"

31 U.S.C. § 1101. We affirm.

I. Statement of the Case

Experienced government ayents manning a

radar screen detected an unidentified object,

apparently an aircraft, crossing from Mexico into

the United States at approximately 200 miles per

hour. One of the agents called the local airport

it was nearing and specified its location; the

control tower identified it as appellants' small

airplane. The police were called. The plane

landed; appellants emerged and got into a taxi.

Policemen approached the taxi from behind with

guns ready, but it started to drive off. The

policemen raised their guns, and the taxi halted.

Appellants were frisked and told, "We are just

detaining you for customs, and this is a routine

pat-down." They were then placed in the caged

rear seat of a police car.

A few minutes later, customs officers arrived

by plane and appellants were moved to the airport

manager's office. Without giving Miranda warnings,

a customs officer asked appellants if they had

anything to declare from Mexico. They falsely

replied that they had not been into Mexico, then

lied that they had come from New Mexico and had

only been forced into Mexican airspace hy bad

weather. Officers made a warrantless search of

appellants' airplane and luggage and found $20,000.

The appellants were later given Miranda warnings

and formally arrested.

II. Warrantless Search at the "Extended Border"

No warrant or probable cause is required for

customs searches at the border. Shorter v. United

States, 469 F.2d 61, 63 (9th Cir. 1972), cert.

denied, 411 U.S. 918 (1973). The same is true of

customs searches made at the functional equivalent

of the border. United States v. Potter, 552 F.2d

901, 907 (9th Cir. 1977). The first United States

point at which an international flight lands is

the functional equivalent of the border. Id.

Essentially continuous surveillance of a vehicle,

or similar information that establishes to a

reasonable certainty that it crossed the border

and that any contraband found was aboard when the

border was crossed, brings a case within this

category of "extended border searches." See id.;

Castillo-Garcia v. United States, 424 F.2d 482,

485 (9th Cir. 1970). The facts of this case

evince an even higher degree of certainty than

that.

The government agents continuously and

reliably tracked the radar blip that represented

appellants' plane. They could not have confused

it with any other aircraft represented on the

radar screen. As the plane approached Palomar

Airport, near Carlsbad, California, the agents

learned from the Palomar control tower that the

plane represented by the blip was appellants’

twin-engine Aztec. The control tower then brought

the Aztec in and watched appellants emerge.

The tower quickly corrected its initial

confusion of the plane in question with a single-

engine Cherokee that was nearer the airport. The

agents continued to track the-blip until the plane

was in the Palomar landing pattern and its location

and true identity had been confirmed by the tower.

Moreover, the blip the agents had been tracking

could not have represented the Cherokee, because

a Cherokee cannot fly as fast as the tracked plane

was flying. Thus, this momentary confusion did

not vitiate the required reasonable certainty that

the radar blip represented appellants’ plane.

It is of course not necessary for customs

agents actually to view the airplane crossing

the border and proceeding into the United States.

See United States v. Ingham, 502 F.2d 1287, 1290

(Sth Cir. 1974), cert. denied, 421 U.S. 911 (1975).

The reliable technology used by the agents in this

case was more than acceptable. See United States v.

Potter, 552 F.2d at 906-07.

To determine the location of objects that

caused blips to appear on the radar screen, the

agents relied on a National Oceanographic Service

video map, showing the -location of geographical

features and international boundaries, that was

superimposed on the radar screen. Proof that

appellants’ plane was in Mexico, crossed the

border, and proceeded to Palomar depends in large

part on the accuracy of the map. The map's

accuracy was sufficiently proved by the testimony

of an expert in radar and air traffic, and the

FAA manual he based his opinion,on.did not have

to be admissible itself. Fed. R. Evid. 703.

Appellants’ hearsay objection below concerned the

expert's declaration regarding the manual, not

(as they assert in their reply brief here) the

agent's declaration of the expert's statements.

Appellants waived the latter hearsay objection

below by stipulating that the expert be deemed to

have been called, duly sworn and testified in

accordance with the information he gave the agent.

We conclude that the search was made at the

functional equivalent of the border, and that no

warrant or probable cause was required.

III. Stop and Detention Without Probable Cause

Appellants claim that they were arrested with-

out probable cause, and that all evidence subse-

quently obtained must be suppressed as the fruit

of a poisonous tree. They were not arrested,

however, but were subjected to a brief "forcible

stop" designed to "maintain the status quo

momentarily," Adams v. Williams, 407 U.S. 143,

146 (1972). If entrants such as appellants could

not be stopped and briefly detained against their

will pending customs officers' arrival and examina-

tion at the extended border, our customs laws could

|

not be enforced. See Almeida-Sanchez v. United

States, 413 U.S. 266, 272 (1973) ("national self

protection" permits entrants to be "stopped" at

border to stem the flow of contraband) ;

United States v. Brignoni-Ponce, 422 U.S. 873,

881 (1975) ("stops" necessary to enforce immigra-

tion laws). If reasonable suspicion to support

this stop and detention was required, it was

supplied by appellants' failure to report their ;

entry and land at a designated airport for customs

processing. Cf. United States v. Martinez-Fuerte,

428 U.S. 543, 562 (1976) (no individualized

suspicion needed for stops at border checkpoints).

The policemen's show of force was precipitated

by the action of the taxi driver, and was necessary

to prevent the appellants from being driven away;

it did not transform the stop into an arrest. See

United States v. Thompson, 558 F.2d 522, 524

(9th Cir. 1977) (policeman drew gun when van began

to drive away), cert denied, 435 U.S. 914 (1978);

United States v. Richards, 500 F.2d 1025, 1028-29

(9th Cir. 1974) (agent drew gun on airplane

preparing to take off), cert. denied, 420 U.S. 924

(1975). See also United States v. Beck, 598 F.2d

497, 500 & n.1l, 501 (9th Cir. 1979). Under the

totality of the circumstances, the conduct of the

police was reasonable. The policemen knew that

appellants were suspected smugglers, and could not

be certain that they were unarmed. After

appellants had been frisked, the policemen

holstered their guns.

The police promptly and correctly informed

appellants that, rather than being arrested, they

were being detained for U.S. Customs. We have

approved such detentions pending the arrival of

specialized officers. See United States v.

O'Looney, 544 F.2d 385, 389 (9th Cir.) (ATF agents),

cert. denied, 429 U.S. 1023 (1976). Moreover, such

verbal denial of arrest tends to disprove arrest.

United States v. Richards, 500 F.2d at 1029.

The further detention of appellants after the

customs officers arrived was, as a reasonable man

would have understood, not an arrest but a typical

administrative detention pursuant to a customs

examination.

IV. Failure to Give Miranda Warnings

The false statements for which appellants

were convicted were made without benefit of Miranda

warnings. Government agents questioning an entrant

at the border need not give Miranda warnings

"unless and until the questioning agents have

probable cause to believe that the person questioned

has committed an offense, or the person questioned

has been arrested, whether with or without probable

cause." Chavez-Martinez v. United States, 407 F.2d

535, 539 (9th Cir.), cert. denied, 396 U.S. 858

(1969). Since we hold that appellants were not

arrested until after the statements challenged

here were made, the issue is whether the question-

ing customs officer had probable cause. 2/

When the customs officer first approached

and began questioning appellants, there was no

probable cause to believe that appellants had

committed a crime. The officer could not have

had probable cause to believe that appellants

had violated 19 U.S.C. § 1459 (failure to report

arrival of vehicle containing merchandise),

because their airplane was not a "vehicle," see

19 U.S.C. § 1401(b), and he did not know whether

appellants were carrying "merchandise" (in fact,

they were not); therefore appellants’ failure to

1/ The questioning here occurred as appellants stood

outside the terminal building and in the airport

manager's office; the situation itself was not so

coercive or "police dominated" as, without more, to

bring Miranda concerns into play. See United States

v. Hickman, 523 F.2d 323, 326-27 (9th Cir. 1975),

cert. denied, 423 U.S. 1050 (1976).

report their arrival was not illegal. Even if

the officer believed that appellants had violated

the civil regulations promulgated under authority

of 19 U.S.C. § 1624, these were not "crimes."

See 19 C.F.R. & 6.11. And although conspiracy to

violate those regulations is a crime, there was

no probable cause to believe that the airplane's

two occupants were conspiring, even if there was

cause to believe that one occupant intended to

and did violate the regulations. Therefore, the

customs officer had no probable cause, and did

not have to give Miranda warnings, when he arrived

and directed his questions to appellants.

He first asked them if they had anything to

declare from Mexico; they said that they had not

been into Mexico. The officer contradicted them,

and they replied that they had flown nonstop from

Sunland Park, New Mexico,: and had only veered into

Mexican airspace to avoid a weather front.

Before, and even after, these statements, the

officer did not yet have probable cause. A

prudent man would not jump to the conclusion that

appellants were liars and criminals; he would first

determine whether they had a plausible explanation,

consistent with innocence (as in fact they claimed

to). Although the officer may have been suspicious,

he did not yet have facts and circumstances within

his knowledge and of which he had reasonably trust-

worthy information sufficient to warrant a prudent

man in believing that appellants had committed a

crime. See United States v. Avalos-Ochoa, 557 F.2d

1299, 1302 (9th Cir.) (definition of probable cause),

cert. denied, 434 U.S. 974 (1977). Therefore,

appellants' fatal statements were made before

probable cause arose.

V. Sufficiency of the Evidence

Appellants claim that their statements that

they had not been into Mexico cannot be used to

convict them under & 1001, because an answer of

"yes" or silence to the question whether they had

anything to declare would have tended to incrim-

inate them; thus, they say, they were entitled to

respond with an "exculpatory 'no.'" It is doubtful

whether the "exculpatory 'no'" defense has any

validity within this Circuit, see United States v.

Rose, 570 F.2d 1358, 1364 (9th Cir. 1978); United

States v. Goldfine, 538 F.2d 815, 820-21 (9th Cir.

1976); United States v. Ratner, 464 F.2d 101, 103-

05 (9th Cir. 1972). We need not reach the issue,

however, because appellants did more than merely

say no, they had nothing to declare; they offered

the affirmative, unsolicited statements that they

had not been into Mexico and that they had flown

from Sunland Park, New Mexico.

The stipulated facts amply demonstrate that

these statements were false. The statements, if

believed, would have enabled appellants and any

contraband they might have been carrying to enter

the contry without rigorous examination; thus

they potentially impaired the function of the

customs service and violated 18 U.S.C. § 1001.

United States v. Rose, 570 F.2d at 1364.

VI. Conclusion

No warrant or probable cause was required for

the search of appellants’ airplane and luggage,

because the search occurred at the "extended

border." Because the detention of appellants was

merely a permissible "stop," not an arrest, no

evidence must be excluded. It was not necessary

for Miranda warnings to precede the questions

that elicited appellants' false statements. The

evidence supported the convictions.

AFFIRMED.

PREGERSOQN, Circuit Judge, concurring specially:

The record satisfies me that the defendants'

actions, taken after the airplane landed, justified

the precautionary measures taken by the officers,

although at first blush those measures seemed

excessive. Because those measures were justified

an arrest did not take place.

Therefore, I concur in the result.

Filed in the Court of Appeals

Ninth Circuit

October 22, 1980

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 79-1416

Plaintiff-Appellee, DC No. 79-0045

vs.

ROBERT GLENN MOORE,

Defendant-Appellant.

UNITED STATES OF AMERICA,

No. 79-1417

Plaintiff-Appellee,

DC No. 79-0045

vs.

ORDER

MICHAEL ENGLISH,

Defendant-Appellant.

me ee ee ee ee ee ee ee ee

Before: CHOY, ANDERSON and PREGERSON, Circuit

Judges.

The panel as constituted in the above case

has voted to deny the petition for rehearing and

to reject the suggestion for rehearing en banc.

The full court has been advised of the

suggestion for rehearing en banc and no judge of

the court has voted to grant rehearing en banc.

F.R.App.P. 35(b).

The petition for rehearing is denied and the

suggestion for rehearing en banc is rejected.

bee

A

ee te meme

—_————

ee a eS

a

-—— ow

an eee a ‘

a ee

~

ps ———— mm

ame eR RE At yn At

7

———

es pee ee ee ~

*s