Record and brief — Palm v. United States

Supreme Court of the U

Ocroser Tro, 1981

PHILIP PALM,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Rosert J. Weser

221 N. LaSalle Street

Chicago, Illinois 60601

(312) 782-1983

Samus. V. P. Banxs

221 N. LASalle Street

Chicago, IIlinois 60601

(312) 782-1983

Counsel for Petitioner,

Pamir Punx

Keenan Printing Company 312-648-0050 ses

81-2008 [ree

QUESTIONS PRESENTED

Whether the seizure by government agents of the

petitioner’s briefcase, and its subsequent search after

petitioner had been released and when there was no ex-

pectation of the presence of contraband, is an unlawful

border seizure as contemplated in 19 U.S.C. § 482?

Whether the admission of lay opinion regarding the

chemical composition of an unknown substance is an im-

proper application of Fed. R. Evid. 701?

iii.

INDEX TO PETITION

Pace

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Reasons for Granting the Writ 9

D A barcenedediwe savas 14

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TABLE OF AUTHORITIES

Cases Pace

Brown v. Illinois, 422 U.S. 590 (1975) 12

Dunaway v. New York, 442 U.S. 200 (1979) .......... 12

Henderson v. United States, 390 F. 2d 805 (9th Cir.

%%% ̃ m! ᷑̃7¾ bee sada di ehoareeeest 9

Ker v. California, 374 U.S. 23, 83 S. Ct. 1623 (1963) .. 9

Maquire v. United States, 396 F. 2d 327 (9th Cir. 1968) 12

United States v. 12 200 Reels of Film, 413 U.S. 123,

EE DYE TTT es coe aes 11

United States v. Brodzik, 366 F. Supp. 295, 297 (W. D.

, AA 0 00 ˙˙—— 12

United States v. Haro-Espinosa, 619 F. 2d 789 (9th Cir.

e BO A, C ( 13

United States v. Hill, 430 F. 2d 129, 130 (Sth Cir. 1970) 9

iv.

Cases Pace

United States v. Luschen, 614 F. 2d 1164 (8th Cir.

1980), cert. den. 100 S. Ot. 216111. 13

United States v. Place, 660 F. 2d 44, 50 (2nd Cir. 1981) 12

United States v. Ramsey, 431 U.S. 606, 616-9 (1976) ... 10

United States v. Schoor, 597 F. 2d 1303, 1306 (9th Cir.

PCPÄL cya FES eNE Cs BEER ba cbc Mee ddities 11, 12

United States v. Thirty Seven Photographs, 402 U.S.

Se TEE Web ̃ —[ñV B dane 11

Constitutional Amendments

// / e 2-3

Statutes

, e 3,9

, V 2

Rules

rene. 3, 13

Supreme Court of the United States

Ocroser Term, 1981

PHILIP PALM,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Petitioner, Philip Palm, respectfully prays that writ of

certiorari issue to review the judgment and opinion of the

United States Court of Appeals for the Ninth Circuit,

entered in this proceeding on January 18, 1982. Petitioner’s

request in the court below for rehearing was denied Feb-

ruary 26, 1982.

OPINIONS BELOW

The opinion of the court of appeals is reported at

F. 2d „ (9th Cir. 1982) and appears as Appendix A hereto.

PARTIES BELOW

The names of all parties to this proceeding in the court

of appeals appear in the caption of the case.

The judgment of the court of appeals was entered on

January 18, 1982. On February 1, 1982, petitioner sought a

rehearing. On February 26, 1982, the court of appeals

denied rehearing. This petition for certiorari was timely

filed within 60 days after the denial of the petition for

rehearing pursuant to Rule 20 of the Rules of the Supreme

Court. This Court’s jurisdiction is invoked under 28 U.S.C.

§ 1254.

CONSTITUTIONAL PROVISIONS

AND STATUTE INVOLVED

Fourth Amendment to the Constitution of the United

States;

“The right of the people to be secure in their per-

sons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated; and no

Warrants shall issue but upon probable cause, sup-

ported by Oath or affirmation, and particularly

describing the place to be searched, and the persons or

things to be seized.’’

19 U.S.C. § 482:

Any of the officers or persons authorized to board

or search vessels may stop, search, and examine as

well without as within their respective districts, any

vehicle, beast, or person, on which or whom he or they

shall suspect there is merchandise which is subject to

duty, or shall have been introduced into the United

States in any manner contrary to law, whether by the

person in possession or charge, or by, in, or upon such

vehicle or beast, or otherwise, and to search 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 merchan-

dise 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 introduced 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.’’

Fed. R. Evid 701:

Ik the witness is not testifying as an expert, his

testimony in the form of opinions or inferences is

limited to those opinions or inferences which are (a)

rationally based on the perception of the witness and

(b) helpful to a clear understanding of his testimony

or the determination of a fact in issue.’’

4

STATEMENT OF THE CASE

Seizure and Search of the Briefcase

On July 30, 1980, Dennis T. Pielage (‘‘Pielage’’) was

arrested in Honolulu, Hawaii, as he attempted to smuggle

heroin into the United States from Fiji. During a routine

border search, an inspector detected heroin sewn under the

inside lining of Pielage’s briefcase. During the subsequent

interrogation of Pielage, investigators found a piece of

paper on which was written the name of Philip Palm

(Palm“ or ‘‘the Petitioner’’). Further investigation dis-

closed that Palm was due to arrive in Honolulu from Fiji

on August 1, 1980.

On August 1, 1980, when Palm arrived in Honolulu, on

a flight from Nandi, Fiji, he went through the preliminary

customs check, afterwhich he was directed to the secondary

station. There, inspectors searched his person, and a cus-

toms inspector and DEA agent took Mr. Palm’s briefcase

to another room where it was drilled, a technique used to

locate substences hidden under linings. The agents found

no contraband in the briefcase; however, they did observe

about 200 pieces of paper.

After the drilling, Palm and the agents walked to the

DEA office where a DEA agent questioned Palm about

Pielage. Initially, Palm denied knowing Pielage; however,

when told that Pielage said he knew Palm, the defendant

admitted he knew Pielage and said he denied knowledge

because he was afraid Pielage was in trouble.

The customs inspector completed his examination of Mr.

Palm and told him that he was free to leave. The DEA

agent then said that they were going to keep Palm’s brief-

case, whereupon the customs inspector concurred because

he felt that retaining the briefcase would assist in the case

against Pielage.

An agent escorted Palm through the airport to the gate

from which he would board his flight to Los Angeles. Upon

returning to the DEA office, the agent began to examine

the contents of Palm’s briefcase and came across a bluish,

clear plastic folder. The agent testified that he noticed a

white powdery residue on both the outer and inner covers

of the folder, that he scraped this off with a knife and

requested a police officer to obtain a Marquis reagent to

test for heroin.

The police officer returned with a cobalt thiocyanate

cocaine tester, into which the agent deposited the contents

from his knife. He testified that he then noted blue specks

in the test kit which to him indicated the presence of co-

caine. In conducting this test, the DEA agent used all of the

white powder.

In addition, during his search of the briefcase, the DEA

agent found Palm’s travel itinerary. Using that itinerary,

the agent told the jury that Palm had traveled through

Bangkok, Thailand, which the agent characterized as a

“source city’’ for the purchase of drugs.

Prior to trial, Petitioner moved to suppress the use of

any items or information obtained from his briefcase. The

trial court denied that motion.

Opinion Testimony—DEA Agent

A DEA agent testified that, on August 1, 1980, while

searching the contents of Palm’s briefcase, he observed a

white powdery residue on the cover of a plastic folder;

that he scraped off all of the residue with a knife; that he

and others processed it through a cobalt thiocyanate cocaine

tester; that he observed little blue specks in the test kit;

and that he did not send any of this substance to a chemist.

In concluding this testimony the agent said that the ap-

pearance of blue specks means the presence of cocaine. On

cross-examination, the agent contradicted himself and said

that he did not testify that the substance tested for cocaine.

The cross-examination proceeded as follows:

„. (Mr. Banks) But you said it tested for cocaine.

A. (Agent Snyder) No. I just said it gave a blue

response.

Indicating it could have been cocaine.

Or heroin.

Or heroin. You don’t know which.

I don’t know which.

So what you’re saying is you don’t know what it

was but you think it was one or the other.

A. That's correct.“

In short, Agent Snyder was not sure what the substance

was.

The procedure followed by Agent Snyder with regard

to the residue found in the defendant's briefcase is to be

contrasted with his actions regarding the substance pre-

viously found in Pielage’s briefcase and with the proce-

dures followed by the DEA Chemist, Look. Fist, when the

substance was found in Pielage’s briefcase, it was se-

cured, identified and sent to the chemist.

When the DEA Chemist received the substance, he un-

dertook a procedure to identify it and determine its quality.

After weighing the substance, he ran tests to determine

whether it was cocaine or heroin. In other words, the

chemist could not make that determination with certainty

from observation. To be sure that the substance was in

fact heroin, he ran both a micro-chemical and an infra-

red spectrophotometric test. Then, after determining that

the substance was heroin, he ran a general gas chromo-

6

SFO

7

tography test to determine quality. Based upon these tests,

he reported his conclusions to the DEA office in Hono-

lulu.

On cross-examination, the chemist testified that, upon

receiving the substance, he cut out four samples and ran

tests on each. He further testified that an examination by

way of a microscope can be conducted on very minute

amounts of a substance and a determination could be

made as to whether or not the substance is heroin or

cocaine.

Opinion Testimony — Pielage

Related to the error in permitting the DEA agent to

speculate regarding the nature of the powdery residue is

the testimony of Pielage regarding a substance he smuggled

into the United States in 1975. In an effort to show prior,

similar misconduct by the petitioner, the government of-

fered the totally uncorroborated testimony of Pielage

that, in 1975, he smuggled cocaine into the United States

and delivered it to Palm. The evidence that the substance

was, in fact, cocaine consisted of the following:

„. (U.S. Attorney) What was in that package?

A. (Mr. Pielage) Cocaine.

Q. How do you know that?

A. Because I saw it unpacked.

MR. BANKS: I object to that, your Honor.

If the Court please, I ask that that be stricken.

That’s a conclusion of the witness as to what

it is.

THE COURT: Well, I think that’s probably

true unless he knows it when he sees it. That

would be true. Sustained. It may be stricken

unless there is a foundation laid,

Q. Mr. Pielage, have you ever taken cocaine?

A. I have tried it.

Q. Are you able to recognize it?

MR. BANKS: Object. Your Honor, this is a

scientific test involved to determine these types

of substances.

THE COURT: It goes to the weight, not to

the admissibility. The objection is overruled.

* * 2

Q. The question is, the first question I asked you

was whether or not you have taken cocaine.

A. Yes, I have tried it.

Q. And you have had a reaction from it?

A. Yes, I have a sinus condition which is, when

taking cocaine, I have an allergic reaction to.

Q. But you have seen it on many occasions?

A. Yes, I have.

Q. All right. And so this incident in 1975 when

you saw the cocaine, did it appear to be cocaine to

you?

A. Yes, sir.

MR. BANKS: I object to that, Judge.

THE COURT: I think he can testify that it

appeared to be cocaine. Objection is overruled.

After having permitted Mr. Pielage speculate regarding

the cocaine, the court appeared to retrench when the matter

again came up in Mr. Pielage’s testimony. The following

occurred:

Q. (Mr. Weatherwax) Did you in fact bring the

box into the United States?

A. (Mr. Pielage) Yes, I did.

Q. What did you do with that box?

9

A. (Mr. Pielage) I went through Los Angeles and

checked into the Marriott Hotel and waited for Mr.

Palm to contact me.

Q. (Mr. Weatherwax) All right. And then what

happened?

A. And then he came to my room and immediately

opened the box and took a little bit of the coke out.

MR. BANKS: I object to the conclusion.

THE COURT: Well, at any rate, he took a

little bit of something out.

THE WITNESS: Right.”

REASONS FOR GRANTING THE WRIT

THE DECISION BELOW SANCTIONS UNINTENDED

AND UNCONSTITUTIONAL EXTENSION OF THE

GOVERNMENT'S POWER TO SEARCH AND SEIZE

LUGGAGE AT A BORDER WHERE THE AGENTS

A "RIEFCASE AFTER THEY EXHAUSTED

ALL EXPZCTATIONS OF FINDING CONTRABAND

AND WHERE THEY INTENDED TO CONDUCT A

GENERAL SEARCH OF THE PAPERS CONTAINED

IN THE BRIEFCASE.

A search or a seizure must be reasonable under the

Fourth Amendment. Ker v. California, 374 U.S. 23, 83 S.

Ct. 1623 (1963). Absent the normal requirements of a

search warrant or the existence of probable cause, border

searches still must be reasonable under the Fourth Amend-

ment. United States v. Hill, 430 F. 2d 129, 130 (5th Cir.

1970) ; Henderson v. United States, 390 F. 2d 805 (9th Cir.

1967). 19 U.S.C. § 482 provides in part:

“Any of the officers or persons authorized to board

or search vessels may . . . search any trunk or enve-

lope, wherever found, in which he may have a reason-

10

able cause to suspect there is merchandise which was

imported contrary to law; and if any such officer or

other person. . shall find any merchandise on or

about any such. . trunk or envelope, which he shall

have reasonable cause to believe . . to have been un-

lawfully introduced into the United States, . . he shall

seize and secure the same for trial.” (Emphasis sup-

plied)

The history of this statute is succinctly set out in United

States v. Ramsey, 431 U.S. 606, 616-9 (1976), where this

Court concludes:

„This long-standing recognition that searches at our

borders without probable cause and without a war-

rant are nonetheless ‘reasonable’ has a history as old

as the Fourth Amendment itself.’’

However, in Ramsey, supra. p. 618, fn. 13, this Court also

noted that it was not deciding whether, and under what

circumstances, a border search might be deemed unreason-

able because of the particularly offensive manner in which

it was carried out.

Petitioner has consistently argued that the government

agents exceeded the authority given them under 18 U.S.C.

§ 482. Specifically, the agents seized petitioner’s briefcase

and its contents-—being his personal papers—after two

searches failed to uncover any contraband. This is a direct

violation of the dictates of 18 U.S.C. § 482 which conditions

seizure of a trunk or ‘‘envelope’’ upon the finding of

contraband. In this case, the alleged traces of an undefined

controlled substance were found after the seizure of the

briefcase.

Secondly, the final search of the briefcase was a viola-

tion of 18 U.S.C. § 482 in that the object was not contra-

band, but evidence. The government’s right to search and

seize at the border without a warrant is limited to the

11

prevention of smuggling. United States v. Thirty Seven

Photographs, 402 U.S. 363, 376 (1971); United States v.

12 200-Ft. Reels of Film, 413 U.S. 123, 125 (1973). In this

case, it is clear that at the time of the final search, the

agents had determined that petitioner did not possess con-

traband, and they undertook an inspection of Palm’s pri-

vate papers which were in the seized briefcase. It must be

recalled that the agents had inspected the inside of the

briefcase twice including a perusal of the contents, before

the final search of the papers. One of the prior searches

included a drilling to determine if any substance was con-

cealed under the linings.

It must also be recalled that Palm was released by the

agents—though his briefcase was retained—to catch a

flight from Hawaii to California. Therefore, the agent must

have felt that they did not have probable cause to arrest

him.

Finally, it must be recalled that this last search was a

reading of the private papers contained in the briefcase.

Because this final search was general and investigative, it

does not fall within the purview of 18 U.S.C. § 482, or any

other inherent powers that the government may have to

protect its borders and, therefore, the agents should have

obtained a warrant.

The opinion of the court below fails to discuss these

issues, and for that reason alone, this petition should be

allowed. The court below first discusses the issue of the

involvement of the DEA agent, with the Customs inspector

and resolves it by citing United States v. Schoor, 597 F. 2d

1303, 1306 (9th Cir. 1979). However, the identity and or-

ganization of the agents was not the issue raised by the

appeal. The issue, which remains unanswered, is the focus

12

of the search which had shifted from a search for contra-

band, to a search of private papers for evidence.

Petitioner is aware of the few cases where the issue of

contraband vis a vis evidence is discussed. Maquire v. United

States, 396 F. 2d 327 (9th Cir. 1968); United States v.

Schoor, 597 F 2d 1303 (9th Cir. 1979). However, in each

of these, contr«band was the object of the questioned search

which uncovered evidence of other crimes. In this case,

contraband was no longer the object of the questioned

search.

The court below next discusses the question of the bi-

furcation of the search, and resolves the matter by holding

that ‘‘the second’’ search was a continuing border search.

The court below undertakes a time and distance analysis

which completely misses the point.

As noted above, the real issues are:

1. Was the seizure without haviag found contraband

valid?

2. By reason of the shifting of the object of the search

from contraband to evidence of criminal involve-

ment, must a warrant be obtained?

In this regard, petitioner would analogize his position at

the time that he was released to that of the traveler in an

airport who has been subjected to an investigative stop.

In those instances, seizures—whether of persons, Dunaway

v. New York, 442 U.S. 200 (1979); Brown v. Illinois, 422

U.S. 590 (1975) ;—or of objects, United States v. Place,

660 F. 2d 44, 50 (2nd Cir. 1981), for investigative purposes

have been declared unconstitutional. See also: United

States v. Brodzik, 366 F. Supp. 295, 297 (W. D. N.Y. 1973).

These issues have not, as yet, been addressed by this

Court and are properly presented within the context of this

13

case. Furthermore, the court below has failed to address

these questions and, therefore, review by this Court is

necessary.

11.

THE DECISION BELOW IMPROPERLY SANCTIONS

THE ADMISSION OF LAY OPINION TESTIMONY

REGARDING THE CHEMICAL COMPOSITION OF

AN UNKNOWN SUBSTANCE AND THEREBY DAN

GEROUSLY BROADENS THE SCOPE OF FED. R.

EVID. 701 IN NARCOTIC PROSECUTIONS.

Opinion Testimony-Pielage and DEA Agent

As noted above, the trial court permitted both Pielage

and a DEA agent to testify to opinions that a white,

powdery substance was either cocaine or heroin. The court

below held that such opinion testimony was properly ad-

mitted into evidence under Fed. R. Evid. 701.

Fed. K. Evid. 701 provides for the admission of lay

opinions if the opinions are rationally based upon the per-

ception of the witnesses. Fed. R. Evid. 702 provides for

the admission of expert testimony when the witness has

been qualified. Opinions regarding the nature of a ques-

tioned substance are limited to qualified experts. United

States v. Haro-Espinso, 619 F. 2d 789 (9th Cir. 1979);

United States v. Luschen, 614 F. 2d 1164 (8th Cir. 1980);

cert. den. 100 S. Ct. 2161. To permit an agent to testify to

an opinion which cannot be impeached because the ques-

tioned substance has been used, or to permit a smuggler

to render a lay opinion under Fed. R. Evid. 701 unneces-

sarily and dangerously broadens the scope of that rule.

14

CONCLUSION

For these reasons a writ of certiorari should issue to

review the judgment and opinion of the United States Court

of Appeals for the Ninth Circuit.

Respectfully submitted,

Rosert J. Wann

Sanuk. V. P. Banks

221 N. LaSalle Street

Suite 3800

Chicago, IL 60601

(312) 782-1983

Counsel for Petitioner, Philip Palm

April, 1982

~ yIpuaday

Al

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, )

Plaintiff-Appellee, No. 81-1225

v. > D.C. No. 80-01159

PHILIP PALM, MEMORANDUM

Defendant-Appellant. |

Appeal from the United States District Court

for the District of Hawaii

Samuel King, District Judge, Presiding

Argued and submitted October 21, 1981

Before: ALARCON, POOLE and FERGUSON, Circuit

Judges

Philip Palm appeals his conviction of distributing heroin

in violation of 21 U.S.C. § 959 and of causing another indi-

vidual to import heroin in violation of 21 U.S.C. § 952(a),

§ 960(a)(1), and 18 U.S.C. § 2(b). We affirm.

Palm first contends that the seizure and search of his

briefcase was not a lawful border search because it was con-

ducted by a Drug Enforcement Agency agent. We do not

agree. The search was conducted by customs officials with

DEA agents assisting them. A border search under the

aegis of a customs official is not invalidated by the presence

of DEA agents. See United States v. Schoor, 597 F. 2d

1303, 1306 (9th Cir. 1979), United States v. Carter, 592 F.

2d 402, 405 (7th Cir.), cert. denied, 441 U.S. 908 (1979).

A2

Palm alsc argues that the second search of his briefcase

was not a border search and therefore required a war-

rant. This argument is also without merit. The entire

search and questioning of Palm was completed within

seventy minutes. During this time, customs officials never

relinquished the briefease to Palm. The second search

conducted at the airport was a continuing border search

and therefore did not require a search warrant. See United

States v. Ramsey, 431 U.S. 606, 616-20 (1977), United States

v. Rodriguez, 592 F. 2d 553, 556 (9th Cir. 1979). Customs

officials may allow a suspect to leave and subsequently

conduct a valid border search. See e.g., United States v.

Espericueta-Reyes, 631 F. 2d 616, 619 (9th Cir. 1980);

United States v. Smith, 629 F. 2d 1301 (9th Cir. 1980).

Palm next argues that the trial judge improperly ad-

mitted certain testimony. Agent Snyder’s testimony re-

garding the substance found in Palm’s briefcase and

Dennis Pielage’s testimony regarding the substance

allegedly smuggled into the country in 1975 were both

lay opinion testimony founded on personal knowledge and

observation, and were properly admitted into evidence

under Fed. R. Evid. 701.

Palm contends that Pielage’s testimony regarding the

courier from South America was inadmissible hearsay.

Assuming that admission of this testimony was error, it

was harmless. Customs officials found heroin in Pielage’s

briefcase. At trial, Pielage gave extensive and detailed

testimony concerning the agreement between Palm and

Pielage to smuggle the heroin from Fiji. For the jury

to have convicted Palm they must have believed Pielage’s

testimony regarding the present smuggling agreement.

Pielage’s testimony concerning a prior smuggling trans-

A3

action probably did not add to his credibility and there-

fore did not contribute to the conviction.

Palm’s final contention is that the evidence against him

was insufficient to support his conviction. As noted above,

customs officials found heroin in Pielage’s suitcase. Pielage

gave extensive and detailed testimony regarding the plan-

ning and effectuation of their smuggling scheme. The

eveidence in the record, when taken in the light most favor-

able to the prosecution, supports the conviction. See Jack-

son v. Virginia, 443 U.S. 307, 318-19 (1979), United States

v. Witt, 648 F. 2d 608, 611 (9th Cir. 1981).

AFFIRMED.

1— CLERK

a

n tte Supreme Court of the Gnited States

PHILLIP PALM, PETITIONER

* iW

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

‘THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

be Rex E. Lee .

15 Solicitor General

* D. LOWELL JENSEN

ry. ‘Assistant Attorney General

I; JOHN F. Dx Pur

5 Attorney |

2 of Justice

1 5

Be : |

“ws

55 1

3 1 s

3 K N

8

QUESTIONS PRESENTED

1. Whether a search of petitioner’s briefcase con-

ducted by a Customs officer, assisted by a DEA agent,

upon petitioner’s arrival in the United States on an

international flight constituted a legitimate customs

inspection.

2. Whether the district court properly admitted in

evidence opinion testimony that an otherwise unidenti-

fied substance was a narcotic.

TABLE OF CONTENTS

Page

e 1

/ bc dcUvbs eves betes 1

// POM aie deKe ⁰ 05% 0 1

/ ᷣͤͤ—qX] 7... 5

— œ Q ⁵¼—ß'»ß . 12

TABLE OF AUTHORITIES

Cases:

Brown v. Illinois, 422 U.S. 590........... 7

Dunaway v. New York, 442 U.S. 200 ..... 7

Government of Canal Zone v. Eulberg, 581

r ö 6, 7

Maguire v. United States, 396 F. 2d 327,

cert. denied, 398 U.S. 1099. 9

United States v. Atkins, 473 F. 2d 308, cert.

denied, 412 U.S. 98111 11, 12

United States v. Bermudez, 526 F.2d 89,

cert. denied, 425 U.S. 970 .............. 10

United States v. Burchinal, 657 F.2d 985,

cert. denied, 454 U.S. 1086 ............. 12

United States v. Flores, 594 F.2d 438 6,7

United States v. Grayson, 597 F.2d 1225,

cert. denied, 444 U.S. 875 .............. 9

United States v. Hampton, 507 F.2d 832,

rn ee eee 10-11

United States v. Haro-Espinosa, 619 F. 2d

„ cbnhe tbody ince cess <at> 10

United States v. Lam Lek Chong, 544 F.2d

58, cert. denied sub nom. Liganoza v.

United States, 429 U.S. 1101 ........... 11

III

Page

Cases—Continued:

United States v. Lawson, 507 F. 2d 433,

cert. denied, 420 U.S. 1004 ............. 12

United States v. Ramsey, 431 U.S. 606.... 7

United States v. Schoor, 597 F. 2d 1308 .... 9

United States v. Warner, 441 F. 2d 821,

cert. denied, 404 U.S. 829 .............. 6

Statutes and rules

ein oh a 0p) Seivesees i vvebsenwee 2

neee 5, 6, 7

nee.. 2

ne «605006 avn eubnd dhescsees 1-2

eee 2

Fed. R. Evid.:

rann 5, 11, 12

In the Supreme Court of the Gnited States

OCTOBER TERM, 1982

No. 81-2004

PHILIP PALM, PETITIONER

U.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The memorandum opinion of the court of appeals

(Pet. App. Al-A3) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

January 18, 1982. A petition for rehearing was denied

on February 26, 1982. The petition for a writ of certio-

rari was filed on April 27, 1982. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following denial of his pretrial motion to suppress

evidence, petitioner was convicted by a jury sitting in

the United States District Court for the District of

Hawaii of distribution of heroin intended for unlawful

importation into the United States, in violation of 21

1

2

U.S.C. 959; and of causing an accomplice to distribute

unlawfully imported heroin and to possess a controlled

substance, in violation of 21 U.S.C. 952(a) and 960(a)(1)

sion hearing and at trial established that in May 1980

United States by concealing them in the lining of a

briefease.1 They agreed to meet in Fiji, where they

would exchange matching briefcases. Pielage would

then bring the briefcase given to him by petitioner into

the United States, and the two would mee. in Los An-

geles, California, where petitioner would receive the

briefease and pay Pielage $7,000 for his services (Tr.

64-69). To effectuate the scheme, petitioner gave

Pielage expense money to purchase airline tickets and a

briefcase. Pielage then flew to Fiji where on July 29,

1980 he met petitioner in his hotel room and they ex-

changed briefcases (Tr. 67-68, 72-73, 78-87). The fol-

lowing day, Pielage arrived at the Honolulu

International Airport with the briefcase that petitioner

had given him. During a customs inspection, a Customs

officer discovered a quantity of heroin secreted in the

lining of the bottom of the briefcase (Tr. 90-91), and a

piece of paper bearing petitioner’s name and the tele-

phone number of a female acquaintance (H. Tr. 8-9).

Customs officials telephoned the woman and checked

the passenger manifest of incoming flights, learning

that petitioner would be arriving later that night Uh.

Tr. 10).

1 Pielage, who entered a plea of guilty to attempted importa-

tion of drugs, was the government’s principal witness at trial.

2 References to “Tr.” denote the trial transcript; H. Tr.” de-

notes the suppression hearing transcript.

3

As expected, petitioner, carrying a black briefcase

identical to Pielage’s, arrived on a flight from Fiji

shortly after midnight and was met by a Customs offi-

cer who escorted him to a “primary” customs area. Af-

ter a Treasury Enforcement Communications Systems

(TECS) computer check registered a “hit”, which indi-

cated petitioner’s prior involvement in criminal activity,

he was taken to a “secondary” customs area, where the

Customs officer, assisted by a DEA agent, inspected

the briefcase and observed that its corner had been

pulled apart and reglued. However, when the officers

punctured the lining of the bag with a drill they did not

detect the presence of drugs (H. Tr. 12-13, 15-16, 26).

Petitioner was then taken to a DEA office, where he

initially denied but later admitted knowing Pielage* (H.

Tr. 16-17, 28). Acting on the suggestion of the DEA

agent, the Customs officer decided to retain petitioner’s

briefcase but to permit petitioner, who by then had

been detained approximately one hour, to catch a con-

necting flight to Los Angeles (H. Tr. 15, 17-18, 29).

The Customs officer explained at the suppression hear-

ing that this was necessary because he “wasn’t finished

examining it” (H. Tr. 29), and because it was of appar-

ent evidentiary value in a drug importation case involv-

ing both petitioner and Pielage (H. Tr. 19-20).

Following petitioner’s departure, the Customs officer

and the DEA agent renewed their inspection of the

briefcase. While searching its contents, the DEA agent

observed a white powder residue on a blue plastic fold-

er (H. Tr. 13-14). The agent scraped the residue off the

folder and, by conducting a field test for drugs, deter-

mined that it was cocaine or heroin (H. Tr. 13-14, Tr.

* Petitioner explained that his initial denial was prompted by

his fear that Pielage was in trouble and his desire not to become

involved (H. Tr. 17).

1

156-157). The inspection of the briefcase and the folder

also revealed the presence of a passport and a trip itin-

erary prepared by a travel agency (Tr. 155).

Following denial of petitioner’s motion to suppress

the contents of the briefcase (H. Tr. 46), the district

court admitted into evidence testimony concerning both

the narcotic residue found on the folder and the travel

documents found in the briefcase (Tr. 155-156).

2. The district court denied petitioner’s motion to

suppress the contents of the briefcase concluding that,

notwithstanding the pause in the search and the

participation of a DEA agent assisting the Customs in-

spector, the second phase of the search of petitioner’s

briefcase constituted a permissible warrantless border

search conducted for the specific purpose of interdicting

unlawful importation of contraband rather than for gen-

eral law enforcement purposes (H. Tr. 40—43).* At trial

the court permitted testimony concerning both the nar-

cotics residue found on the folder and the travel docu-

ments found in the briefcase (Tr. 155-156).

On appeal petitioner argued that the second phase of

the search of his briefcase was impermissible because

the border search had ended when nothing was found in

drilling into the lining and he was permitted to go on

his way, and because of the participation of a DEA

agent. Petitioner also asserted several errors in the ad-

mission of evidence, most importantly the admission of

the DEA agent’s testimony, based upon the field test

he had administered, that the substance found on the

folder recovered from petitioner’s briefcase was either

cocaine or heroin. Finally, petitioner asserted that the

evidence was insufficient to support his conviction.

* The court concluded in the alternative that the second phase

5

The court of appeals affirmed. The court held that a

“border search under the aegis of a customs official is

not invalidated by the presence of DEA agents” (Pet.

App. Al) and that the second search conducted at

the airport was a continuing border search and there-

ore did not require a search warrant” (id. at A2; em-

phasis in original).5 The DEA agents’ testimony and

other challenged testimony were both properly admit-

ted into evidence pursuant to Fed. R. Evid. 701 as lay

opinion testimony founded upon personal knowledge

and observation, the court held (Pet. App. A2).®

Finally, the court held that petitioner’s conviction was

amply supported by the evidence, which included

Pielage’s testimony implicating petitioner in the at-

tempted importation of the heroin found in Pielage’s

briefcase (id. at Ag).

ARGUMENT

1. Petitioner contends (Pet. 9-12) that the trial judge

was required to grant his motion to suppress evidence

found in his briefcase because Customs officers ex-

ceeded their statutory authority by detaining the brief-

case for further examination while allowing his depar-

ture from the airport and by thereafter renewing a

search of its contents. More specifically, he argues that

19 U.S.C. 482 authorizes the seizure of containers by

Customs officers only following the discovery of contra-

band; thus, the detention of his briefcase for further ex-

amination following the initial inspection, which failed

5 The court noted (Pet. App. A2) that At he entire search and

questioning of Palm was completed within seventy minutes.

During this time customs officials never relinquished the brief-

case to Palm.”

The court also held (Pet. App. A2-A3) that admission of

Pielage’s testimony to the effect that petitioner had sent a cou-

rier who had supplied him with cocaine which he had delivered

to Palm on an earlier occasion was harmiess error, if error at

all.

6

to reveal the presence of contraband, is alleged to have

constituted an unlawful seizure. This claim was proper-

ly rejected by the court below.

a. 19 U.S.C. 482 authorizes a Customs officer to

search 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 * * * shall find any merchandise on or

about any such * * * trunk or envelope, which

he shall have reasonable cause to believe * * *

to have been unlawfully introduced into the

United States Ito] seize and secure the

same for trial.

It is settled law in the courts of appeals that the failure

of Customs officers, acting within the purview of this

statute, initially to detect the presence of contraband in

personal belongings does not preclude them from con-

ducting a second search of the property while it is with-

in the immediate vicinity of the border crossing point.

See, e.g., United States v. Flores, 594 F.2d 438, 439

(5th Cir. 1979); Government of Canal Zone v. Eulberg,

581 F.2d 1216, 1218 (5th Cir. 1978) (collecting cases).

As the court explained in Eulberg, quoting United

States v. Warner, 441 F.2d 821, 832-833 (5th Cir.),

cert. denied, 404 U.S. 829 (1971), “a person [and his be-

longings are] not immune from further examination by

Customs agentS‘merely because he may momentarily

escape detection and pass safely through the first Cus-

toms check.’” It is fully permissible for Customs offi-

cials to maintain custody over personal belongings long

enough to enable them to conduct secondary examina-

tions for contraband that they may have overlooked

during their initial inspection. By contrast with the sei-

zure for trial or forfeiture proceedings of property

found to contain contraband, referred to in Section 482,

such temporary detentions for investigative purposes

7

are simply an incident of the authority to enforce the

customs laws by conducting inspections at international

points of entry. See, e.g., United States v. Flores, su-

pra, 594 F.2d at 439 (warrantless secondary search of

automobile by Customs officers for drugs 10 days after

initial customs search, which revealed a quantity of her-

oin, was a valid customs search); Government of Canal

Zone v. Eulberg, supra, 581 F.2d at 1218 (customs

search of van more than a week following its initial

search and detention by Customs officers was a valid

border search under 19 U.S.C. 482).7 Here, as the Cus-

toms officer who conducted the second search explained

during the suppression hearing (H. Tr. 29), petitioner’s

briefease was retained simply because the officer

7 Disposition of this petition need not await this Court’s deci-

sion in United States v. Place, cert. granted, No. 81-1617

(June 7, 1982). The question presented in Place—whether the

police may detain luggage for exposure to a drug detecting dog

where there is suspicion not amounting to probable cause that it

contains narcotics—does not involve a detention of luggage inci-

dent to a customs search. Petitioner’s reliance upon Dunaway

v. New York, 442 U.S. 200 (1979); and Brown v. Illinois, 422

U.S. 590 (1975), is misplaced for the same reason. Both cases in-

volve investigative detentions of persons on the basis of suspi-

cion not amounting to probable cause; neither concerned the de-

tention of luggage at an international border for the purpose of

continuing a customs search.

Petitioner’s suggestion (Pet. 11) that by permitting him to go

on his way the Customs inspector revealed his view that prob-

able cause to arrest was lacking is both unfounded and irrele-

vant. First, the existence of probable cause to arrest petitioner

is not in issue. Second, probable cause is not required for a bor-

der search. United States v. Ramsey, 431 U.S. 606, 619 (1977).

Finally, there can be no requirement that law enforcement

agents exercise at all times the maximum legally justifiable re-

straint upon persons suspected of involvement in crime. That

petitioner was not held is no indication at all that he could not

have been detained for a reasonable time pending completion of

the border search.

“wasn’t finished examining it * *.“ Because the ensu-

ing search conducted at the airport was a continuing

border search, the incidental detention was proper.

b. Nor do the facts support petitioner’s related argu-

ment (Pet. 4, 10-12) that the examination of his brief-

case, which revealed traces of narcotics, was in excess

of the Customs officer’s authority to conduct border

searches because its objective was the discovery of ad-

ditional evidence against Pielage rather than discovery

of contraband imported in violation of the customs laws.

In view of the appearance of the briefcase—its similari-

ty to Pielage’s briefcase and its reglued cover, as well

as petitioner’s false statement that he did not know

Pielage, the Customs officers and DEA agents and am-

ple reason to suspect that it contained narcotics which

they had overlooked. The Customs officer who author-

ized the detention and supervised the second search of

the briefcase stated that he took these measures to

“help prove that * * * Pielage and [petitioner] were in-

volved in illegal importation f controlled sub-

stance({s]” (H. Tr. 20). He made no suggestion, howev-

er, that the inspection would not embrace a search for

controlled substances themselves. Instead he explained

that, in light of the events that followed the initial drill

search, he concluded that the first examination was too

cursory and that a more complete customs search was

required (H. Tr. 29).®

e. Finally, there is no merit to petitioner’s contention

(Pet. 11) that the search of his briefease was unreason-

ably intensive because it embraced a reading of his per-

sonal papers. First, this argument was raised neither in

* Petitioner errs in stating (Pet. 11) that, prior to the second

search, Customs officials had concluded that he did not possess

contraband. The clear implication of the Customs officer’s testi-

mony is that the continued search was to locate drugs that may

have been missed during the initial inspection.

that resulted in the discovery of petitioner’s passport

and trip itinerary, that the documents were simply ob-

served at some point during the inspection of its con-

tents.? “[Wjhere customs officers are authorized to

search for material introduced illegally into the

United States and they discover the instrumentalities

or evidence of crimes, they may seize the same.”

United States v. Schoor, 597 F.2d 1303, 1306 (9th Cir.

1979) (footnote omitted), citing Maguire v. United

States, 396 F. 2d 327, 330 (9th Cir. 1968), cert. denied,

393 U.S. 1099 (1969). In any event, where, as here,

there is reason for Customs officials to suspect that pa-

pers in the possession of a person whose belongings are

subject to inspection relate to the smuggling of contra-

band, they may examine the documents. See United

States v. Grayson, 597 F. 2d 1225, 1228-1229 (9th Cir.),

cert. denied, 444 U.S. 875 (1979). 10

During the pretrial suppression hearing no testimony was

developed as the extent to which petitioner’s personal papers

were examined or as to how or when the passport and itinerary

were discovered. Indeed, petitioner never specifically ad-

dressed the suppression of the documents. At trial, during cross

examination, the DEA agent testified that he “went through”

the papers in petitioner's briefcase during the customs search of

its contents (Tr. 166). Nothing in the record supports petition-

er’s claim that the inspection involved a systematic “reading of

the private papers contained in the briefcase” (Pet. 11).

1° Documents in Pielage’s briefcase linked him with petition-

er. It would be logical for Customs officials to suspect that pa-

pers in petitioner’s briefcase might connect him with Pielage

and corroborate his involvement in the drug smuggling oper-

|

10

2. Petitioner also claims (Pet. 13-14) that the trial

judge erred in permitting non-expert opinion testimony

that certain chemical substances were cocaine or

heroin.

a. At trial, the DEA agent who discovered the white

powder residue on the plastic folder in petitioner’s

briefcase testified that, after scraping the substance off

with a knife, he exposed it to a reagent from a cobalt

thiocyante cocaine tester kit. The agent observed a blue

crystalline reaction which, he stated, indicated the

presence of cocaine or heroin. The agent’s testimony es-

tablishes that he had received special training at the

Treasury Department Law Enforcement School in the

field testing of unknown substances for the presence of

narcotics and had additional on-the-job experience (Tr.

156-159, 168). 11

There is no merit to petitioner’s claim (Pet. 13) that,

because the DEA agent was not a trained chemist, the

trial judge improperly admitted his conclusion that the

powdery residue taken from the packet was a narcot-

ic. 12 Where, as here, a DEA agent’s opinion testimony

concerning the presence of an unlawful drug is based

upon his professional education and his on-the-job expe-

rience in analyzing drug samples, it is not an abuse of

discretion to admit such testimony. See United States

v. Haro-Espinosa, 619 F.2d 789, 795 (9th Cir. 1979);

United States v. Bermudez, 526 F.2d 89, 97-98 (2d

Cir. 1975), cert. denied, 425 U.S. 970 (1976); United

11 The agent also testified that, following the field test, no

residue was left for further analysis at a laboratory (Tr. 156).

12 The DEA agent’s inability to testify definitively that the

white powder found in petitioner’s briefcase was cocaine rather

that heroin was the result of the inability of the test that he per-

formed to discriminate between the two substances, not his lack

of training (see Tr. 168). As petitioner was not charged with

possession of the drug in his briefcase, the agent’s inability to

distinguish between the two substances was inconsequential.

11

States v. Hampton, 507 F. 2d 832, 836 (8th Cir. 1974),

affd, 425 U.S. 484 (1976); see also, United States v.

Lam Lek Chong, 544 F.2d 58, 71 (2d Cir. 1976), cert.

denied sub nom. Liganoza v. United States, 429 U.S.

1101 (1977). Admission of the agent’s testimony was

accordingly proper either under Fed. R. Evid. 702, or,

as the court of appeals concluded, under Fed. R. Evid.

701.

b. At petitioner’s trial Pielage, who appeared as a

government witness, testified that during 1975 petition-

er had sent him as a courier to Tahiti to receive a quan-

tity of cocaine and import it into the United States.

Pielage explained that he had used cocaine on occasion.

Based upon his familiarity with the drug, Pielage was

allowed to testify that the substance which he conveyed

for petitioner appeared to be cocaine (Tr. 93-95). The

trial judge did not err in admitting this testimony. Un-

der Fed. R. Evid. 702 a witness qualified as an expert

by knowledge or personal experience may present per-

tinent opinion testimony, and it is within a trial judge’s

dis*retion under this rule to admit the testimony of an

experienced drug user or courier that a particular sub-

stance is, in fact, contrabend. See United States v.

Atkins, 473 F.2d 308, 313-314 (8th Cir.), cert. denied,

412 U.S. 931 (1973) (collecting cases). In any event, the

13 We note that the DEA agent technically did not testify to

his opinion as to the identity of the substance removed from the

blue folder on direct examination. Instead, he simply reported

his observation of the results of the field test he had con-

ducted—a blue crystalline reaction (Tr. 159). He had previously

testified, in general terms, that such a reaction was indicative of

the presence of cocaine. Petitioner’s counsel had objected

earlier, when the agent was initially asked the result of the field

test (Tr. 157). After a foundation for the agent’s testimony was

laid (Tr. 157-159), however, the agent reported his observation

without any further objection. The agent stated a direct conclu-

sion respecting the identity of the contraband only upon cross-

examination by petitioner’s counsel (Tr. 167-168).

12

court of appeals’ conclusion that Pielage’s testimony

was properly admitted as lay opinion testimony under

Fed. R. Evid. 701 is plainly correct. Here, Pielage, who

had explained that he had used cocaine and had seen it

on other occasions, was properly permitted to testify

that the substance that he had smuggled on petitioner’s

behalf in 1975 had the appearance of cocaine (Tr. 95).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

Rex E. Lee

Solicitor General

D. LOWELL JENSEN

Assistant Attorney General

JOHN F. De PUE

Attorney

AUGUST 1982

14 This testimony was not introduced to establish criminal lia-

bility for petitioner’s role in the 1975 transaction, for which he

was not charged. Rather, it was intended to help establish peti-

tioner’s intent and knowledge by cementing the links between

petitioner, Pielage, and unlawful drug trafficking. Where evi-

dence of uncharged crimes is introduced for such purposes, it is

unnecessary to establish commission of the unlawful act beyond

a reasonable doubt; it is sufficient that evidence of the un-

crimes be clear and conwincing. See United States v.

Burchinal, 657 F. 2d 985, 993 (8th Cir.), cert. denied, 454 U.S.

1086 (1981) (collecting cases). In view of Pielage’s testimony

that the substance he transported for petitioner had the physi-

cal appearance of cocaine and the circumstances under which he

received it, the clear and convincing evidence standard was

satisfied here. See United States v. Atkins, supra, 473 F. ad at

314 (character of illegal substance may be proven by circum-

stances of its sale and disposition); accord, United States v.

Lawson, 507 F.2d 433, 439 (7th Cir. 1974), cert. denied, 420

U.S. 1004 (1975).