Record and brief — Jacobson v. United States

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

MICHAEL D. JACOBSON and

DAVID VAN BODEGRAVEN,

Petitioners,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

William J. Risner

100 N. Stone Ave.

901 Pioneer Plaza

Tucson, Arizona 85701

(602) 622-7494

Counsel for Petitioners

August 14, 1981

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

MICHAEL D. JACOBSON and

DAVID VAN BODEGRAVEN,

Petitioners,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

William J. Risner

100 N. Stone Ave.

901 Pioneer Plaza

Tucson, Arizona 85701

(602) 622-7494

Counsel for Petitioners

August 14, 1981

QUESTIONS PRESENTED

1. Whether an "extended border search"

authorized federal customs agents to search

fenced in real property under circumstances

where the officers either knew or concluded

that contraband birds had been taken from

the smuggling vehicle and placed in a

caged area hundreds of feet from the

vehicle?

2. Whether 19 U.S.C. §482, 19 U.S.C.

§158l1(a) or 19 U.S.C. §1595(b) either

eliminates the petitioners expectation

of privacy or authorizes federal customs

agents to search real property independent

of the search for a vehicle?

Questions Presented ..... .i

Opinion Below

po ee ee

Constitutional and

and Statutory Provisions. .. .3

Federal Questions Presented . .5

Statement of the Case ..... .5

Reasons for granting writ .. .1l

1. The decision of the

Ninth Circuit, United

States Court of Appeals,

conflicts with the opin-

ion of the Fifth Circuit

in United States v.

Steinkoenig.. ..... ll

The decision of the

Ninth Circuit Court of

Appeals stands alone

for the proposition that

an extended border search

may be made of real

CO eee

The court misread

Federal Statutes in

arguing that petitioners

did not have a reason-

able expectation of

privacy at night at their

residences inside a com-

pound fenced in barbed

SD ss ae < wow ee Se eee

at

Conclusion .

Certificate of Service .

Appendix.

-iii-

CITATIONS

Cases Page

United States v. Steinkoenig,

487 F.2d 225 (5th Cir, 1973) .11, 12, 13

United States v. Jacobson,

(9th Cir. 80-1571, June

bay BOGEP «© eve e ey ie ae ae

United States v. Espericuete-

Reyes, 631 F.2d 616 —

Cir. 1980) i wwe St Ce

United States v. Moore, 638 F.2d

LA7k. Cem Cie. i900)... «.2 « «ae

United States v. Richards,

638 F.2d 765 aly Cir.

SR gh aso Sa

-iv-

CITATIONS

Page

CONSTITUTIONAL PROVISIONS AND STATUTES

eR es

Das MEU 5 6 0 + 3 6 me oOg Shy BG

Be ects GROEN 6 « + co wwe My Sb, 26

Be wea. Beeeeeee « 2 te ce o eM, AL, 26, 47

United States Constitution,

Fourth Amendment ...... .3

-V-

No.

IN THE

SUPREME COURT OF THE UNITED STATES

MICHAEL D. JACOBSON and

DAVID VAN BODEGRAVEN,

Petitioners,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Petitioners Michael D. Jacobson

and David Van Bodegraven respectfully pray

that writ of certiorari issue to review

the judgment of the United States Court of

Appeals for the Ninth Circuit entered in this

proceeding on June 12, 1981.

OPINION BELOW

The opinion of the United States Court

of Appeals, for the Ninth Circuit is offi-

cially reported at and appears in the

appendix hereto at A-l. A copy of the

judgment rendered in the trial court, the

United District Court for the District of

Arizona on July 24, 1980, appears in the

appendix hereto at A-21,

JURISDICTION

The opinion of the United States Court

of Appeals for the Ninth Circuit was decided

on June 12, 1981. The petitioners timely

filed their petition for rehearing which

was denied on July 15, 1981. This petition

for certiorari was filed within thirty (30)

days of that date. The statutory provision

which confers jurisdiction on this Court to

review the judgment of a United States Court

of Appeals in a criminal matter by writ

of certiorari in 28 U.S.C. §1254(1).

atte

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS

The Forth Amendment to the Constiution

of the United States provides:

“The right of the people to be

secure in their persons, houses, papers,

and effects, against unreasonable searches

and seizures, shall not be violated,

and no Warrants shall issue, but upon

probable cause, supported by Oath

or affirmation, and particularly

describing the place to be searched,

and the persons or things to be

seized."

Section 482 of 19 U.S.C. provides:

“Any of the officers or persons

authorized to board or search vessels

may stop, search, and examine, as

well without as within their respec-

tive districts, any vehicle, beast,

or person, on which or whom he or

they shall suspect there is merchan-

dise which is subject to duty, or

shall have been introduced itno the

United States in any manner contrary

to law, whether by the person in

possession or veel pt or by, in,

or upon such vehicle or beast, or

otherwise, and to serach any trunk

or envelope, wherever found, in

which he may have a reasonable cause

to suspect there is merchandise

which was imported contrary to law;

and if any such officer or other

person so authorized shall find

any merchandise on or about any

such vehicle, beast, or person, or

in any such trunk or envelope, which

<=

he shall have reasonable cause

to believe is subject to duty,

or to have been unlawfully in-

troduced into the United States,

whether by the person in possession

or charge, or by, in, or upon such

vehicle, beast, or otherwise, he

shall seize and secure the same

for trial.

Section 158l(a) of 19 U.S.C. provides:

BOARDING VESSELS. Customs officers.

(a) “Any officer of the

customs may at any time go on board

of any vessel or vehicle at any

place in the United States or within

the customs waters or, as he may be

authorized, within a customs-enforce-

ment area established under the

ee one Act, or at any other

authorized place, without as well as

within his district, and examine the

manifest and other documents and

papers and examine, inspect, and

search the vessel and every part

thereof and any person, trunk, pack-

age, or cargo on board, and to this

end may hail and stop such vessel

or vehicle, and use all necessary

force to compel compliance.

Section 1595(b) of 19 U.S.C. provides:

Entry upon property of others.

b) "Any person authorized

by this chapter to make searches

and seizures, or any person assisting

him or acting under his directions,

may, if deemed necessary by him or

them, enter into or upon or pass

whe

through the lands, inclosures, and

buildings, other than the dwelling

house, of any person whomsoever,.

in the discharge of his official

duties.

HOW FEDERAL QUESTION PRESENTED.

The federal questions involved herein

were first raised in the memoranda attached

to the petitioners motions to Suppress

filed in the United States District

Court for the District of Arizona prior

to trial. They were again raised in the

briefs of the parties in the United

States Court of Appeals for the Ninth

Circuit and further discussed in oral

argument. The opinion of the Court

below discussed those federal statutory

and constitutional issues.

STATEMENT OF THE CASE.

Pursuant to their supposed authority

as United States Customs agents to make

an "extended border search" federal agents

o Sp

entered upon the fenced land of the peti-

tioners on April 30, 1980, during the

evening hours for the purpose of seizing

a large quantity of smuggled parrots which

the agents believed had been placed inside

a cage located some one hundred (100)

yards from the vehicle in which they had

been smuggled. The petitioners were

arrested approximately 100 feet from the

main residence occupied by the family

of Petitioner Michael D. Jacobson and

near the guest house occupied by petitioner

David Van Bodegraven.

The arrest of the petitioners was the

culmination of several months of work by

a "task force" of United States Customs

Agents that had agreed to "target" the

petitioner Michael D. Jacobson for

enforcement action. Early in the work of

the task force a Mexican citizen, Mr.

Gustavo Preciado, was recruited as a

paid informant for the Jacobson Task Force.

After being recruited by the govern-

ment agents Mr. Preciado travelled into

the interior of Mexico to the stare of

Nayarit where he purchased some three

hundred (300) parrots from two Mexican

citizens, the co-defendants Cosme

Guerrero and his father Pomposo Cuerrero. ~

Mr. Preciado claims to have accompanied

the Guerreros and his newly acquired

parrots to the Mexican boarder at Nogales,

Arizona. During the trip and continuously

until the parrots arrived in Tucson,

Arizona Mr. Preciado kept the government

agents informed of all the details of

the planned smuggling venture.

The custom agents had previously

become familiar with exact location and

physical layout of the premises owned

by the petitioners. Aerial photographs

of the premises had been taken over two

months prior to the controlled delivery

oFe

of the parrots. The aerial photographs

in turn had been verified by a day time

visit by a customs agent on the pretext

of being a potential customer of Mr.

Jacobson's business known as Pet Ranch

Imports.

The premises consisted of two

residences and swimming pool together

with a couple of small buildings for rep-

tiles on several acres of Sonoran desert

land surrounded by a barbed wire fence.

Scattered throughout the land were various

outdoor cages occupied by birds and

mannals that constituted part of the stock

in trade of Mr. Jacobson who ran a whole-

sale pet business. The premises were

located a few miles to the southwest of

Tucson, Arizona, a city of some one-half

million residents, and over sixty miles

from the Mexican border at Nogales,

Arizona.

Due to the constant reporting and

conferring with Mr. Preciado, the

government agents were aware of 411 the

important details of the planned smuggling

venture including the time and place of the

border crossing and the time and place

of the intended delivery of the birds

at the residence of the petitioner Mr.

Jacobson.

The government agents thus were

able to follow the van of Mr. Preciado

as he drove the birds to Tucson where

he met two female co-defendants at a

shopping center parking lot for the

purpose of transferring the birds t

their vehicle for eventual delivery to

Mr. Jacobson. When the women arrived at

the Jacobson premises various agents were

in hiding on all sides of the property

in order to observe the delivery of the

birds,

As various of the agents converged

on the front gate of the property they

were able to observe a flashlight move

from the residence area where the delivery

vehicle had been parked toward a large cage

where the birds were eventually seized.

Believing that the birds were now in the

cage and pursuant to their prearranged

plan the agent in charge radioed the

signal to enter the premises and make a

warrantless seizure and arrests.

Once on the property the agents

fanned out to search the cages before

the vehicle or house was searched. The

petitioners were arrested near the guest

house where Mr. Van Bodegraven lives and

approximately two hundred feet from the

cage where the birds were seized and one

hundred feet from the main house.

-10-

The United States District Court

for the District of Arizona in an order

by Judge Richard M. Bilby on July 24, 1980,

suppressed the evidence upon the grounds

that an extended border search could not

be made of real property. The United

States Court of Appeals for the Ninth

Circuit reversed the district court

holding that the search was reasonable

under the totality of circumstances and

that certain specific federal statutes

(19 U.S.C. §482, 19 U.S.C. §1581(a) and

19 U.S.C. §1595(b)) helped create a con-

text wherein petitioner had no reasonable

expectation of privacy on their prem.ses.

REASONS FOR GRANTING THE WRIT

1. THE DECISION OF THE NINTH CIRCUIT,

UNITED STATES COURT OF APPEALS

CONFLICTS WITH THE OPINION OF THE

FIFTH CIRCUIT IN UNITED STATES v.

STEINKOENIG .

a, =

In United States v. Steinkoerig.

487 F.2d 225, 229 (5th Cir. 1973) the

United States Court of Appeals for the

Fifth Circuit rejected a search of a

defendant's motel room by United States

customs agents as not being a valid border

search. The court stated:

It could not have been

a valid border search

because the statute

authorizing the agent's

search permits warrant-

less searches of a

"vehicle, beast or person"

not a residence.

The opinion of the Ninth Circuit in

the opinion below is directly opposed to

the Fifth Circuit view as expressed in

Steinkoenig.. The birds were seized by

customs agents from a cage located some

two hundred feet from the transporting

vehicle and the arrested defendants.

The entry upon the premises by the agents

were made upon signal by the agent in

charge after he concluded that the birds

-12-

had been removed from the cage before the

vehicle itself was searched.

Hence, the opinion below, United

States v. Jacobson, (9th Cir. 80-1571,

June 12, 1981), is precisely opposed to

the opinion and result in Steinkoenig.

supra. The constitutional rights of the

petitioners as secured by the Fourth

Amendment to the United States Constitution

should not be dependant upon which area

of the republic the petitioners reside.

2. THE DECISION OF THE NINTH

CIRCUIT COURT OF APPEALS

STANDS ALONE FOR THE PROPO-

SITION THAT AN EXTENDED

BORDER SEARCH MAY BE MADE

OF REAL PROPERTY.

The government did not cite one case

in its memoranda or briefs where any court

has approved the search of real property

under the authority of a border search.

All of the cases cited by the government

or the Ninth Circuit in its opinion,

involved the search of motor veciles.

-13-

It is, of course, not surprising that no

such cases exist since real property

cannot cross the border.

Only vehicles can cross the border

whether on the ground, in the air or

on the waters. The exception of allowing

vehicles to be followed and searched

many miles from the border is a norrow

exception to general Fourth Amendment

law. Once the agents were aware that the

birds had left the smuggling vehicle and

had been placed in the cage some three

hundred feet distant the rationale for an

extended border search had been exceeded.

Each of the recent cases cited by

the Court below supports the petitioners

position and not the government's argument.

United States v. Espericueta - Reyes,

631 F.2d 616 (9th Cir. 1980) involved

the search of a vehicle that was stopped

within one mile of the border after con-

tinuous surveillance within one-and-one half

chien

hours after it had crossed the border.

In United States v. Moore, 638 F.2d

1171 (9th Cir. 1980) the Court approved

the search by U.S. Customs officials of

appellant's airplane and luggage at the

airport where the plane first landed after

being continuously monitored by radar

from Mexican airspace. Each of those

cases involves traditional border search

authority to search vehicles under

appropriate circumstances. Their

theoretical bases fly in the face of the

approval of real property searches.

The cited case of United States v.

Richards, 638 F.2d 765 (5th Cir. 1981)

where the Fifth Circuit approved the

controlled delivery and search of a mailed

package of herion that originated outside

the country is not helpful in resolving

the Jacobson problem. Such searches are

unquestionably legal. The search of real

estate under the same authority is a very

separate question.

3. ‘THE COURT MISREAD FEDERAL STATUTES

IN ARGUING THAT PETITIONERS DID

NOT HAVE A REASONABLE EXPECTATION

OF PRIVACY AT NIGHT AT THEIR RESI-

DENCES INSIDE A COMPOUND FENCED

IN BARBED WIRE.

The premises where the petitioners

lived were a combination residence and

commerical yard. The commerical business

is primarily mail order wholesale to other

dealers and is not open to the general

public for retail sales. The search

furthermore occurred at nighttime when

the business is closed to all customers.

The Ninth Circuit laid great stress

on the absence of any reasonable expectat-

ion of privacy of the petitioners because

of their imputed awareness of congressional

intent based upon Congress's enactment of

19 U.S.C. §482, 19 U.S.C. §158l(a) and

19 U.S.C. §1595(b). Those statutes, however,

merely authorize the search of vehicles

(19 U.S.C. §482 and 19 U.S.C. §1581) or

the entry upon land for the purpose of

-16-

searching vehicles. 19 U.S.C. §1595 limits

its statutory authorization for entry upon

land to a person “in the discharge of

his official duties." Those official

duties relate to the searching of vessels

or vehicles.

Neither those cited statutes nor any

others authorize the search of real property

independent of the search for a vehicle

or a vehicle. Therefore, the petitioners

could not have had a lessened expectation

of privacy due to the existence of the cited

statutes.

CONCLUSION

The challenged opinion of the United

States Court of Appeals for the Ninth

Circuit involves a question of exceptional

importance in that it has approved the

search of real property under circumstances

where the officers either knew or concluded

that contraband had been taken from a

vehicle and placed in a caged area hundreds

-17-

of feet from the vehicle. As such, the

Court approved greater authority than has

been approved by any court under the

authority of an extended border search

and is in direct opposition to the view of

the Fifth Circuit.

For the reasons set forth herein,

a writ of certiorari should issue to

review the judgment and opinion of the

United States Court of Appeals for the

Ninth Circuit.

RESPECTFULLY MITTED,

Pp

901 Pioneer Plaza Building

100 North Stone Avenue

Tucson, Arizona 85701

(602) 622-7494

Counsel for Petitioner

August 14, 1981

-18-

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

MICHAEL D. JACOBSON, and

DAVID VAN BODEGRAVEN,

Petitioners,

vs.

UNITED STATES OF AMERICA,

Respondent.

CERTIFICATE OF SERVICE

, I hereby certify that on this 14th

day of August, 1981, one copy of the

Petition for Writ of Certiorari was mailed,

postage prepaid, to Gerald S. Frank, °

Assistant United States Attorney, P.O. Box

1951, Tucson, Arizona 85702, and three

copies were mailed, postage prepaid to

Solicitor General, Department of Justice,

Wahsington D.C. 20530. I further certify

that all parties required to be served have

been served.

-yY =

Chiu Joseph Risner

901 Pioneer Plaza

100 North Stone Avenue

Tucson, Arizona 85701

Counsel for Petitioners

-20-

APPENDIX

Opinion of the United States

Court of “sg ail Ninth

Circuit. ;

Order of the United States

District Court for the

District of Arizona .

A-i

. A-21

UNITED STATES COURT OF APPEALS

NINTH CIRCUIT

UNITED STATES OF AMERICA, )

Plaintiff-Appellant, No. 80-1571

Vv. OPINION

MICHAEL D. JACOBSON and

DAVID VAN BODEGRAVEN,

)

)

)

)

)

)

;

Defendants-Appellees. )

Argued and Submitted Feb. 9, 1981

Decided June 12, 1981.

Appeal from the United States Dis-

trict Court for the District of Arizona.

Before TRASK and SNEED, Circuit

Judges, and THOMPSON,* District Judge.

BRUCE R. THOMPSON, District Judge:

We have for consideration an appeal

from an order of the district court

*Honorable Bruce R. Thompson, Senior

United States District Judge, District

of Nevada, sitting by designation.

A-1

granting defendants’ motion to suppress

evidence. This court has jurisdiction

pursuant to 18 U.S.C. § 3731.

The district court made thorough

findings of fact which are supported by

substantial evidence. Perhaps the issue

may best be highlighted by first reciting

the facts as found by that court.

In early 1980 United States Customs

began an investigation into large scale

parrot smuggling from Mexico into the

United States. Specifically, the investi-

gation would be directed at the activities

of defendant Jacobson who operated a pet

store on West Ajo Way in Tucson. Customs

enlisted Mr. Gustavo Preciado to act an

an informant in the investigation. The

informant was dispatched to the interior

of Mexico. On April 20, 1980, the in-

formant called Customs agents and in-

formed them that a large quantity of

A-2

parrots were going to be shipped from

Ruiz, Mayarit, Mexico, to Hermosillo,

Sonora, Mexico, for eventual smuggling

into the United States at Nogales.

On April 28, 1980, in Nogales, Sonora,

Mexico, the informant was present at a

meeting between defendants Beatriz

Quintero De Fajardo, Cosme Guerrero-

Ibarra and Michael Jacobson. Defendant

Moises Moreno-Perez served as interpreter.

Business arrangements were concluded with

regard to the purchase of the parrots by

Jacobson. A business card was shown at

the meeting, which had directions to

defendant Jacobson's business on West

Ajo on the back. Jacobson destroyed the

card at the meeting‘ and informed the others

present that they should not carry any

papers that would show any type of rela-

tionship with him. Jacobson further

agreed to provide legal help if they

should be arrested. The informant

A-3

communicated the results of the meeting

to Customs.

On April 29, 1980, arrangements for

the smuggling of the birds were completed.

Since no other vehicles were available,

the informant agreed to use his van. This

information was also communicated to

government agents.

On April 30, 1980, at 3:00 p.m. the

informant called Customs agents and in-

formed them that everything was arranged

for the delivery of the parrots to de-

fendant Jacobson in Tucson that evening.

According to the plan, Defendant Fajardo

would drive from Nogales to Tucson, and

meet the informant with the birds in the

van at the K-Mart Shopping Center on

Valencia Road in Tucson. There they

would trade vehicles with the women

taking the van with the parrots for the

actual delivery to Jacobson at his resi-

dence.

At approximately 6:00 p.m. on April

30, 1980, the informant crossed the port

of entry from Mexico into the United

States. He was driving a white Chevro-

let van. The van moved down along the

international border fence and stopped.

The van then proceeded to Tucson, Arizona.

The parties stipulated for the purposes

of this motion, that from the time the

van left the small hill or the large hill

until the time it went to the front gate

of Mr. Jacobson's house, it was surveilled

and nothing was observed going in and

out of the van except people. The van

arrived at the K-Mart in Tucson at about

7:15 p.m.

Defendant Fajardo, together with

another woman, crossed the border at

Nogales in a black over blue Ford LTD

at 6:20 p.m. The Ford was kept under

constant surveillance from Nogales until

it arrived at the K-Mart at 7:45 p.m.

The women traded vehicles with the in-

formant, then proceeded in the van to

4340 West Ajo Way. They arrived at

8:10 p.m.

4340 West Ajo Way is a combination

personal residence and commercial pet

store that is jointly owed by defendants

Jacobson and Van Bodegraven. The property

is completely fenced with barbed wire

fence, with gates that allow access to the

property from two sides. There are

several buildings in the compound, to-

gether with a swimming pool and some

permanent animal cages. None of the

cages nor anything other than the tops of

houses are visible from the public roads.

Shortly after the women arrived at the

gate, a vehicle drove from the house to

where the van was parked. A gate was

opened, and the van moved into the

A-6

compound. At 8:28 p.m. the property was

completely surrounded by government

agents who were in constant radio con-

tact. No ingress or egress would have

been accomplished on the property without

detection by the officers. Agents, with-

out either arrest or search warrants,

entered the property from two sides. The

gates were closed at the time the agents

made their entry. Further, the agents

were ordered to break locks on the gates,

if necessary, to gain admission to the

property. While on the property, agents

found two small cages within the large

animal cages on the ‘oe that con-

tainec 154 parrots.

1. From the foregoing statement of facts

the court concluded: "Clearly, when

the van entered private property, the

scope of the border search was ex-

ceeded, and other justification for |

the warrantless entry would be needed."

A-7

The court's statement of facts may ap-

propriately be supplemented. The van was

in sight of and under the surveillance of

Customs Agent Wells. He and other agents

saw another vehicle drive down to the

locked gate, someone opened it, and the

van was driven up the roadway a short

distance. The gate was closed but not

locked. It was dark. The Customs agents

converged on the gate. They saw flash-

lights moving toward the area where they

had been informed that animals and birds

were kept in cages. The agents entered.

Agent Burns went directly to the white

van and there were no birds init. He

and Agent Wells encountered defendants

approximately simultaneously near the

bird cage area and arrested them. They

found two cages packed with parrots which,

inferentially, were in the same cages in

which they had been transported. The

A-8

seized birds were found and the defendants

arrested approximately 100 feet from the

house in a brushy area south of the

swimming pool.

The government's efforts to excuse

failure to obtain a search warrant on the

theory of probable cause and exigent cir-

cumstances under the related facts is fu-

tile. In this respect we agree with the

district court. With respect to the

second contention, however, we agree

with the government that the search and

seizure here were proper and reasonable

as an extended border search. The

district court held that a border search

could not be conducted after the van and

contents had entered onto the private

property owned by defendants. We dis-

agree.

In the first place, the fact that

the search was conducted on private

A-9

property is not dispositive. Since Katz

v. United States, 389 U.S. 347, 88 S.Ct.

507, 19 L.Ed.2d 576 (1967), property

interests have had slight import in the

administration of the Fourth Amendment.

In United States v. Magana, 512 F.2d

1169 (9th Cir. 1975) (a warrantless search

of a private driveway), this court ob-

served:

The question deferred in Bustamante-

Gamez is before us again. The driveway

where Magana was arrested was within the

curtilage of the house Magana was using,

but “a reasonable expectation of privacy,"

and not common-law property distinctions,

now controls the scope of the Fourth

Amendment. See Katz v. United States,

389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d

576 (1967).

The proper inquiry is whether the

officers’ intrusion into the residential

driveway constituted an invasion into

A-10

"what the resident seeks to preserve as

private even in an area which, although

adjacent to his home, is accessible to

‘the public * * *," Wattenburg v. United

States, 388 F.2d 853, 857 (9th Cir. 1968).

A driveway is only a semiprivate area.

The expectation of privacy which a

possessor of land may reasonably have while

carrying on activities on his driveway

will generally depend upon the nature of

“the activities and the degree of visibility

from the street. It would be equally un-

wise to hold, as a matter of law, that all

driveways are protected by the Fourth

Amendment from all penetrations by police

officers as to hold that no driveway is

ever protected from police incursions.

The test in each case should be that of

reasonableness, both of the possessor's

expectations of privacy and of the offi-

cers’ reasons for being on the driveway.

A-11

Here, the officers were providing se-

curity for their fellows who were known

to be effecting the arrest of a narcotics

dealer engaged in business in the resi-

dence of which the driveway formed a part.

The act of the officers in turning into

the driveway at the time and under the

circumstances of this case was reasonable.

Magana's privacy was not unreasonably

invaded when the officers entered his

driveway and then saw him throw some-

thing away. See United States v. Capps,

435 F.2d 637 (9th Cir. 1970). See also:

United States v. Santana, 427 U.S. 38, 96

S.Ct. 2406, 49 L.Ed.2d 300 (1976) (a war-

rantless arrest on private property of

arrestee); United States v. Allen, 633

F.2d 1282 (9th Cir. 1980)(at p. 1291,

“it was not necessary for them (the

officers" to secure an arrest warrant for

the arrest made on Allen's property but

A-12

not in his home."); United States v. Capps,

435 F.2d 637 (9th Cir. 1970) (observation

of contraband in locked car while on the

curtilage of the owner's residence) ;

United States v. Pruitt, 464 F.2d 494 (9th

Cir. 1972); United States v. Freie, 545 F.2d

1217 (9th Cir. 1976).

The entire subject of extended border

searches has been so recently canvassed in

elaborate opinions of this and other courts

that we are not disposed to burden the

literature with extensive discussion.

We allude primarily to the opi~‘-ns in

United States v. Espericueta-Reyes, 631

F.2d 616 (9th Cir. 1980); United States

v. Moore, 638 F.2d 1171 (9th Cir. 1980)

and United States v. Richards, 638 F.2d

765 (5th Cir. 1981). (None of these

was available to the district court

when it ordered suppression.) We note

also the decision in United States v.

Stanley, 545 F.2d 661 (9th Cir. 1976),

A-13

which applies the extended border search

concept to exports as well as imports.

Suffice it to say, that we believe

the facts of this case sustain the searches

and seizures as a legal and reasonable

extended border search because the

totality of circumstances surrounding.

the search, including the time elapsed

after the initial border crossing and

the distance from the border are such as

to convince the fact finder with reason-

able certainty that any contraband which

might be found in or on the vehicle at

the time of the search had been unlaw-

fully imported and was in the vehicle

at the time of or immediately subsequent

to the unlawful entry. Cf. Alexander

v. United States, 362 F.2d 379 (9th Cir.

1966); United States v. Markham, 440

F.2d 1119 (9th Cir. 1971); United States

v. Weil, 432 F.2d 1320 (9th Cir. 1970).

A-14

Congress has enacted specific autho-

rizations to Customs agents: 19 U.S.C.

§ 482, 19 ante § 158l1(a), 19 U.S.C.

§ 1595(b). In the context of deter-

mining whether respondents’ reasonable

expectation of privacy can be deter-

mined by the location of the barbed

wire fence, these expressions of

Congressional intent cannot be ignored.

United States v. Di Re, 332 U.S. 581,

585, 68 S.Ct. 222, 224, 92 L.Ed 210 (1948);

United States v. Watson, 423 U.S. 411,

2. "stop, search, and examine... any

vehicie ... and... any truck or

envelope, wherever found, . " 19

U.S.C. § 482 (emphasis supplied;) "at

any time go on board of any vessel or

vehicle at any place in the United

States... " 5 U.S.C. § 1581(a)

(emphasis supplied;) and, ‘if deemed

necessary,’ to enter into or upon

or ‘pee through the lands, enclosures,

and building, other than the dwellin

house, of any person whomsoever, in

the discharge of his official duties,"

19 U.S.C. § 1595(b) (emphasis

supplied).

A-15

3

96 S.Ct. 820, 46 L.Ed.2d 598 (1976).

3. “Contrary to the Court of Appeals’

view, Watson's arrest was not invalid

because executed without a warrant.

Title 18 U.S.C. § 3061(a)(3) expressly

empowers the Board of Governors of the

Postal Service to authorize Postal Ser-

vice officers and employees ‘performing

duties related to the inspection of pos-

tal matters' to

‘make arrests without warrant for

felonies cognizable under the laws

of the United States if they have

reasonable grounds to believe that

the person to be arrested has

committed or is committing such

‘ia felony.'

By regulation, 39 CFR § 232.5(a) (3)

(1975), and in identical language, the

Board of Governors has exercised that

power and authorized warrantless ar-

rests. Because there was probable

cause in this case to believe that

Watson had violated § 1708, the

inspector and his subordinates, in

arresting Watson, were acting strictly

in accordance with the anes statute

and regulations. The effect of the

judgment of the Court of Appeals was

to invalidate the statute as applied

in this case and as applied to all the

situations where a court fails to find

exigent circumstances justifying a

warrantless arrest. We reverse that

judgment.

"Under the Fourth Amendment, the

people are to be secure in their persons

(Footnote 3 continued next page.)

A-16

(Footnote 3 continued)

3.

houses, papers, and effects, against

unreasonable searches and seizures

. . . and no Warrants shall issue,

but upon probable cause. . ."

Section 3061 represents a judgment

by Congress that it is not unreason-

able under the Fourth Amendment for

postal inspectors to arrest without

a warrant provided they have probable

cause to do so. This was not an iso-

lated or quixotic judgment of the |

yo en branch. Other federal law

nforcement officers have been expressly

authorized by statute for many years

to make felony arrests on probable cause

but without a warrant. This is true of

United States marshalls, 18 U.S.C.

§ 3053, and of agents of the Federal

Bureau of Investigation, 18 U.S.C.

§ 3052; the Drug Enforcement Administra-

tion, 84 Stat. 1273, 21 U.S.C. §878;

the Secret Service, 18 U.S.C. § 3056(a),

and the Customs Service, 26 U.S.C. §7607.

"Because there is a ‘strong presump-

tion of constitutionality due to an Act

of Congress, especially when it turns on

what is “reasonable,"' '[o]bviously the

Court should be reluctant to decide that

a search thus authorized by Congress was

unreasonable and that the Act was there-

fore unconstitutional. United States

v. Di Re, 332 U.S. 581, 585, 68 S.Ct. 222,

224, 92 4 Ed 210 (1948) . Moreoever,

there is nothing in the Court's prior

cases indicating that under the Fourth

Amendment a warrant is required to make

a valid arrest for a felony. Indeed,

the relevant prior decisions are uni-

formly to the contrary.'

A-17

Congress has expressly authorized the

entry upon the "lands, inclosures and

buildings, other than the dwelling house,

of any person whomsoever." In further

support of the conclusion that defendants

had no such reasonable expectation of

privacy as to preclude an extended border

search of the vehicle (van) and the ani-

mal and bird cage area we rely on the un-

disputed evidence that defendants’ fenced

compound was not simply a residence but

was also a place of business; that a

couple of months previously one of the Cus-

toms agents had visited the establishment

as a purported business visitor and had

observed the layout of the roads, buildings

and bird and animal cages; that on the

night of the search and seizure the offi-

cers surveilling the premises saw flash-

lights moving about in the brushy area

known to be the situs of the bird cages,

A-18

which was a considerable distance from the

residence itself; that defendants had un-

locked the gate and had permitted entry

onto the premises of a vehicle which they

believed to contain parrots which had just

been unlawfully imported from Mexico and

with the imputed knowledge that the

vehicle and contents were under the Customs

laws the possible subjects of search and

seizure wherever found. This totality of

circumstances persuades us that the search

and seizure in question was a legal ex-

tended border search and was reasonable

vis-a-vis the constraints of the Fourth

Amendment to the Constitution of the

United States.

Defendants, nevertheless, contend

that the entry on private property was

unreasonable and unnecessary because the

officers already had the evidence they

needed, that is, proof of the illegal

importation and of the identity of the

A-19

conspirators. The prime source of all

this proof is Preciado, the informant

and an accomplice. Such testimony uni-

versally invokes cautionary instructions

(Federal Jury Practice and Instructions,

Devitt & Blackmar, §§ 17.02, 17.06),

despite the fact that it may be legally

sufficient to sustain a conviction.

United States v. Andrews, 455 F.2d 632

(9th Cir. 1972). It is evidence that

trailing the contraband to its ultimate

recipient is very useful corroboration.

This is an approved purpose of an extended

border search. United States v. Canada,

527 F.2d 1374 (9th Cir. 1975); Alexander

v. United States, 362 F.2d 379 (9th Cir.

1966).

The order granting the motion to

suppress is reversed.

A-20

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

UNITED STATES OF AMERICA, )

)

Plaintiff, )

) No. CR 80-126-

vs. ; TUC-RMB

MICHAEL D. JACOBSON, ) ORDER OF THE

DAVID VAN BODEGRAVEN, ) UNITED STATES

COSME GUERRER-IBARRA ) DISTRICT COURT

BEATRIZ QUINTERO DE FAJARDO, ) FOR THE DISTRICT

MOISES MORENO-PEREZ, OF ARIZONA

Defendants. ;

Defendants MICHAEL D. JACOBSON, DAVID

VAN BODEGRAVEN, BEATRIZ QUINTERO DE FAJARDO

and COSME GUERRERO-IBARRA have filed

motions to suppress evidence seized by

agents of the United States Government

during a search of the premises at 4340

West Ajo Way, Tucson, Arizona, on the

night of April 30, 1980. Additionally,

defendants seek suppression of statements

taken or any testimony by Government

agents of what they saw or seized on the

premises at the time of the search.

A-21

The facts related to these motions

were developed at an evidentiary hearing

on July 19, 1980. In early 1980 United

States Customs began an investigation

into large scale parrot smuggling from

Mexico into the United States. Specifically,

the investigation would be directed at the

activities of defendant JACOBSON who

operated a pet store on West Ajo Way in

Tucson. Customs enlisted Mr. Gustavo

Preciado to act as an informant in the

investigation. The informant was dis-

patched to the interior of Mexico. On

April 20, 1980, the informant called

Customs agents and informed them that a

large quantity of parrots were going to

be shipped from Ruiz, Nayarit, Mexico,

to Hermosillo, Sonora, Mexico. The parrots

would then be shipped from Hermosillo to

Nogales, Sonora, Mexico, for eventual

smuggling into the United States at

Nogales.

A-22

On April 28, 1980, in Nogales, Sonora,

Mexico, the informant was present at a

meeting between defendants BEATRIZ

QUINTERO DE FAJARDO, COSME GUERRERO-IBARRA

and MICHAEL JACOBSON. Defendant MOISES

MORENO-PEREZ served as interpreter.

Business arrangements were concluded with

regard to the purchase of the parrots by

JACOBSON. A business card was shown at

the meeting, which had directions to

defendant JACOBSON'S business on West Ajo

on the back. JACOBSON destroyed the card

at the meeting and informed the others

present that they should not carry any

papers that would show any type of relation-

ship with him. JACOBSON further agreed

to provide legal help if they should be

arrested. The informant communicated the

results of the meeting to Customs.

On April 29, 1980, arrangements for

the smuggling of the birds were completed.

A-23

Since no other vehicles were available,

the informant agreed to use his van. This

information was also communicated to

Government agents.

On April 30, 1980, at 3:00 P.M. the

informant ca.led Customs agents and in-

formed them that everything was arranged

for the delivery of the parrots to

defendant JACOBSON in Tucson that evening.

According to the plan, defendant FAJARDO

would drive from Nogales to Tucson, and

meet the informant with the birds in the

van at the K-Mart Shopping Center on

Valencia Road in Tucson. There they would

trade vehicles with the women taking the

van with the parrots for the actual deliv

ery to JACOBSON at his residence. 1/

This was done at the specific request

of defendant JACOBSON who advised the

informat that women ae at his

house would cause less suspicion than

men.

A-24

At approximately 6:00 P.M. on April 30,

1980, the informant crossed the port of

entry from Mexico into the United States.

He was driving a white Chevrolet van.

The van moved down along the international

herder fence and stopped. The van then

proceeded to Tucson, Arizona. Parties

stipulated that for purposes of this

motion, parrots were in the van from the

time it left the border fence, and that

the van was under constant surveilance

from the time it left the fence. The

van arrived at the K-Mart in Tucson

at about 7:15 P.M.

Defendant FAJARDO, together with

another woman, crossed the border at

Nogales in a black over blue Ford LTD

at. 6:20 P.M. The Ford was kept under

constant surveilance from Nogales until

-it arrived at the K-Mart at 7:45 P.M.

The women traded vehicles with the

A-25

informant, then proceeded in the van to

4340 West Ajo Way. They arrived at 8:10 P.M.

4340 West Ajo Way is a combination

personal residence and commerical pet

store that is jointly owned by defendants

JACOBSON and VAN BODEGRAVEN. The property

is completely fenced with barbed wire

fence, with gates that allow access to the

property from two sides. There are several

buildings in the compound, together with a

swimming pool and some permanent animal

cages. None of the cages nor anything other

than the tops of houses are visible from

the public reads.

Shortly after the women arrived at

the gate, a vehicle drove from the house

to where the van was parked. A gate was

opened, and the van moved into the compound.

At 8:28 P.M. the property was completely

surrounded by Government agents who were

in constant radio contact. No ingress or

egress could have been accomplished on the

A-26

property without detection by the officers.

Agents, without either arrest or search

warrants entered the property from two sides.

The gates were closed at the time the

agents made their entry. Further, the

agents were ordered to break locks on the

gates, if necessary, to gain admission

to the property. While on the property,

agents found two small cages within the

large animal cages on the premises that

contained 154 parrots.

The Government advances several

theories to justify the nonconsentual,

warrantless search, seizure and arrests

on private property. First, the Govern-

ment maintains that the search may be justi-

fied under their border search authority.

United States v. Kessler, 497 F.2d 277

(9th Cir. 1974). This search occurred on

private property that included a residence.

It is a far from a stop of an automobile

near the border. If the agents were

A-27

merely looking for goods or persons illegally

entering the country, they had ample

opportunity to stop the van at any time

after it crossed into the country. Instead,

they chose to wait over two hours and a

distance of over sixty miles, from the

time the van crossed into this country.

Clearly, when the van entered the private

property, the scope of the border search

was exceeded, and other justification

for the warrantless entry would be needed.

The Government's second argument

is that exigent circumstances existed

justifying the warrantless entry and

search. In this Circuit, exigent cir-

cumstances are defined as:

". , . those in which a substantial

risk of harm to the persons in-

volved or to the law enforcement

process if the police were

to delay a search until a warrant

could be obtained. The need for an

A-28

immediate search must be apparent

to the police, and so strong as to

outweigh the important protection

of individual rights provided by the

warrant requirement. There must be

no practical way to avoid these

risks and yet follow the Constituiton's

mandate of detached judicial super-

vision of such intrusions."

United States v. Robertson, 606 F.2d

853 (9th Cir. 1979) at 859, citing

Warden v. Hayden, 387 U.S. 294 (1967)

In this case no such exigent circum-

stances existed. The property was totally

fenced and surrounded, so it is unlikely

that those involved could escape. The

Government argues that, since the parrots

had not gone through quarantine, they

risked the possibility of contaminating

other animals and birds with communicable

diseases. Clearly, if the Government was

so concerned with this risk, they clearly

A-29

could have stopped the van immediately

after it left the international border

fence. When they knowingly allowed the

unquarantined birds to come into the

United States, they surely cannot argue

that their presence created an exigent

circumstance. The next argument is that

the birds could have been released into

cages, commingling with other birds

already on the premises to make it

difficult to recover the smuggled birds.

The argument has little credence, since

by the time the Government agents arrived,

the smuggled birds, although still in

their shipment cages, had been placed in-

side larger cages. If other birds had

been present, clearly these birds could

have been released and commingled if the

smugglers had so desired before the Govern-

ment agents arrived. Furthermore, the

Government agnets had no credible evidence

that such circumstances did, in fact, exist

when they broke into the defendant JACOBSON'S

premises.

Thirdly, the Government argues that the

seizure was incident to the lawful arrest

of defendants VAN BODEGRAVEN, JACOBSON

and the two women who were still in the

residence. This argument has been ex-

plicity rejected in Payton v. New York,

No. 78-5420 U.S. Supreme Court (1980).

The birds in question here were clearly

not in plain view for the officers when

the arrest was effected, even if the entry

to make an arrest had been legal, which

it was not.

Finally, the Government argues that

the defendants had no reasonable expectat-

ion of privacy over the cages, despite the

fact that there was a trespass on private

pecoerty. In this case, the property was

totally fenced. The cages were not

visible from the road. In such a situ-

ation, the expectation of privacy was

clearly reasonable. United States v.

Magana, 512 F.2d 1169 (9th Cir. 1975), cert.

denied, 423 U.S. 826.

A-30

In this case the Government had clear

probable cause for a warrant. They were

working with an informant whose credibility

was proven as the crime went off exactly

as he had communicated to the officers

that it would. The agents knew exactly

where the shipment of birds was headed.

They had radios in their cars with which

they could have called in to obtain a

warrant. They had no reason to believe

that evidence was being destroyed, or that

the perpetrators of the crime were

about to escape. Under these circum-

stances, their failure to obtain a warrant

before entering. the cutilage of a person's

private residence, past a closed fence,

is inexcusable.

IT IS ORDERED that defendants’ Motion

to Suppress is GRANTED. All evidence

obtained directly as a result of the

entry and search of the premises at 4340

West Ajo Way on the evening of April 30,

1980, is suppressed.

A-32

The Clerk of the Court is directed

to mail copies of this ORDER to all

counsel of record.

DATED: July 24, 1980.

RICHARD M. BILBY

UNITED STATES DISTRICT JUDGE

A-33

uO!l}LISOddG

; Otfice-Supreme Court, US

FILED

SEP 4 1981

No. 81-306 ALEXANDER L. STEVas,

CLERK

——

In the Supreme Court of the Hnited States

OcTOBER TERM, 1980

MICHAEL D. JACOBSON AND

DAVID VAN BODEGRAVEN, PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

Rex E. Lee

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

Inu the Supreme Court of the Hnited States

OcTOBER TERM, 1980

No. 81-306

MICHAEL D. JACOBSON AND

DAVID VAN BODEGRAVEN, PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

Petitioners contend that the warrantless search of a com-

pound containing petitioner Jacobson’s business and resi-

dence and the resulting seizure of smuggled contraband by

Customs agents violated their Fourth Amendment rights.

Petitioners were charged in a three count indictment

returned in the United States District Court for the District

of Arizona with unlawfully smuggling parrots into the Uni-

ted States and conspiracy to do so, in violation of 18 U.S.C.

545 and 371.

Following a pretrial hearing, the district court sustained

petitioners’ motion to suppress contraband parrots seized

without a warrant from cages located in a compound con-

taining petitioner Jacobson’s business and residence. It did

so on the grounds that the warrantless search was not

justified by exigent circumstances (Pet. App. A28-A30) and

2

did not qualify as an extended border search because it

occurred on private property located approximately 60

miles from the border (id. at A27-A28). Although agreeing

that there were no exigent circumstances, the Ninth Circuit

reversed the suppression order, holding that Customs

agents, who had continuously surveilled a truck containing

smuggled parrots from the border, could properly make a

warrantless, extended border search of petitioner Jacob-

son’s property after the truck stopped there (id. at A9-A14).

Petitioners contend (Pet. 11-18) that the court of appeals

erred in reversing the suppression order. Whatever the mer-

its of petitioners’ contentions, they are not presently ripe for

review by this Court. The court of appeals’ decision places

petitioners in precisely the same position they would have

occupied if the district court had denied their motion to

suppress the evidence. If petitioners are acquitted following

a trial on the merits, their claims will be moot. !f, on the

other hand, petitioners are convicted, they will be able to

present their present contentions to this Court, together

with any other claims they may have, ina petition for a writ

of certiorari seeking review of a final judgment against

them. Accordingly, review by this Court of the court of

appeals’ decision would be premature at this interlocutory

stage. See, e.g., Brotherhood of Locomotive Firemen &

Enginemen v. Bangor & Aroostook R.R., 389 U.S. 327

(1967); American Construction Co. v. Jacksonville,

Tampa & Key West Ry., 148 U.S. 372, 384-388 (1893); see

also Hamilton Shoe Co. v. Wolf Brothers, 240 U.S. 251,

257-258 (1916).!

'Because this case is interlocutory, we are not responding on the

merits to the questions presented by the petition. We will file a response

on the merits if the Court requests.

3

It is therefore respectfully submitted that the petition for

a writ of certiorari should be denied.

Rex E. Lee

Solicitor General

SEPTEMBER 1981

DOJ-1981-09