Petition — Astorga-Torres v. United States

Office - Supreme Court,

FILED

OCT 22 ee

ALEXA

Ho. NDER L. STEVA®

CLERK

Iu THE

SUPREME COURT OF THE UNITED STATES

October Term, 1982

RAFAEL ASTORGA-TORRES ,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

MICHAELSON & WITHEY

BY: ALVIN S. MICHAELSON

Suite 2512

1900 Avenue of the Stars

Los Angeles, CA 90067

(213) 278-4984

Attorneys for Petitioner

QUESTIONS PRESENTED

(I) Whether the evidence, seized by

federal agents in a warrantless search

of Petitioner's motel room many hours

after Petitioner had been arrested and

taken from the motel room, was admitted

into evidence at trial in violation of

Petitioner's Fourth Amendment's right

against unreasonable searches and sei-

zures and in direct contradiction with

the decisions of this Court in Mincey v.

Arizona, 537 U.S. 385, and Stoner v.

California, 376 U.S. 483.

(II) Whether the Court's error in

giving the Jewell instruction, which the

Ninth Circuit held erroneously invited

the jury to find that Petitioner was in

constructive possession of the heroin

possessed by Ambriz, and required rever-

sal of his conviction of Count MII

i.

permeated the jury's finding of guilt on

Count I and denied Petitioner his Fifth

Amendment right to due process of law?

ii.

Page

QUESTIONS PRESENTED i

TABLE OF AUTHORITIES vi

PETITION FOR WRIT OF CERTIORARI 1

OPINIONS BELOW 2

JURISDICTION 3

CONSTITUTIONAL PROVISIONS INVOLVED 3

STATEMENT OF THE CASE 4

STATEMENT OF FACTS 9

I. Motion to Supress 9

It. The Trial 19

III. The Jewell Instruction 36

REASONS FOR GRANTING THE WRIT 39

iii.

I.

Il.

THE EVIDENCE SEIZED BY

FEDERAL AGENTS IN A WAR-

RANTLESS SEARCH OF PETI-

TIONER'S MOTEL ROOM, MANY

HOURS AFTER PETITIONER

HAD ARRESTED AND

TAKEN FROM THE ROOM, WAS

ADMITTED INTO EVIDENCE AT

TRIAL IN VIOLATION OF

PETITIONER'S FOURTH

AMENDMENT RIGHTS AGAINST

UNREASONABLE SEARCHES AND

SEIZURES, AND THE DECI-

SION OF THIS COURT IN

MINCEY V. ARIZONA, 437

U.S. 385 AND STONER V.

(1964).

THE COURT'S ERROR IN

GIVING THE JEWELL IN-

STRUCTION, WHICH THE

NINTH CIRCUIT HELD ERRON-

EOUSLY INVITED THE JURY

TO FIND THAT PETITIONER

WAS IN CONSTRUCTIVE POS-

SESSION OF THE HEROIN

POSSESSED BY AMBRIZ, AND

REQUIRED REVERSAL OF HIS

CONVICTION OF COUNT II,

PERMEATED THE JURY'S

FINDING OF GUILT ON COUNT

I, AND DENIED PETITIONER

HIS FIFTH AMENDMENT RIGHT

IN DUE PROCESS OF LAW.

iv.

Page

39

53

CONCLIIS ION

APPENDIX "A"

OPINION, UNITED STATES COURT

OF APPEALS FOR THE NINTH

CIRCUIT, FILED MARCH 15, 1982

APPENDIX "B"

ORDER, UNITED STATES COURT OF

APPEALS FOR THE NINTH CIR-

CUIT, FILED MAY 21, 1982

APPENDIX "C"

ORDER DENYING REHEARING,

UNITED STATES COURT OF

APPEALS FOR THE NINTH CIR-

CUIT, FILED JULY 26, 1982

APPENDIX “D*

SUPERSEDING OPINION, UNITED

STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT, FILED

JULY 26, 1982

APPENDIX "E"

ORDER DENYING PETITION FOR

REHEARING AND SUGGESTION FOR

REHEARING EN BANC, UNITED

STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT, FILED

SEPTEMBER 20, 1982

v.

Rage

Agnello v. United States

269 U.S. 20 (1925)

Arellanes v. United States

302 F.2d 603

(9th Cir. 1962)

Chapman v. California

386 U.S. 18,

87 &.Ct. 824,

17 L.Bd.2d 705

Chapman v. United States

365 U.S. 610 (1961)

Chimel v. California

395 U.S. 752,

89 S.Ct. 2034,

23 L.B4.24 685 (1969)

Eng Fung Jem v. United States

281 F.2d 803

(9th Cir. 1960)

Jeffers v. United States

342 U.S. 48 (1951)

Johnson v. United States

333 U.S. 1068,

92 L.Ed. 436 (1948)

Jones v. United States

357 U.S. 493 (1958)

vi.

46

47

57

48

46

48

46

Mincey v. Arizona

537 U.S. 385

Silverstone Lumber Co. v.

United States

251 U.S. 385 (1920)

Stoner v. California

376 U.S. 483 (1964)

United States v. Agapito

620 F.2d 324

(24 Cir. 1979)

United States v. Batimana

623 F.2d 1366

(9th Cir.), cert.

denied, 499 U.S.

1038 (1980)

United States v. Camacho

528 F.2d 464

(9th Cir. 1976)

United States v. Erwin

625 F.2d 838

(9th Cir. 1980)

United States v. Gardner

627 F.2d 906

(9th Cir. 1980)

United States v. Jewell

532 F.2d 911

United States v. Mapp

476 F.2d 67

(2nd Cir. 1973)

vii.

45

i, 39-41

45, 46, 48

40, 42, 43

48

54

42

i, 36, 38

53, 54, 56-58

46

United States v. Maretta-Bejanno

552 F.2d 1323

(9th Cir. 1977)

United States v. Valle Valdez

554 F.2d 911

Vaccaro v. United States

461 F.2d 626

(5th Cir. 1972)

Vale v. Louisiana

399 U.S. 30,

90 S.Ct. 1969 (1970)

Weeks v. United States

232 U.S. 383 (1914)

tatutes

28 U.S.C. § 1254(1)

Rules

Federal Rules of Criminal

Procedure, Rule 29

viii.

57

50, 51

45

6, 36

Constitution

United States Constitution:

4th Amendment

5th Amendment

ix.

i, 4

ii, 3, 53

In THE

SUPREME COURT OF THE UNITED STATES

October Term, 1982

RAFAEL ASTORGA-TORRES ,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

The petitioner, RAFAEL ASTORGA-

TORRES, respectfully prays that a Writ

of Certiorari issue to review the judg-

ment and opinion of the United States

Court of Appeals for the Ninth Circuit

entered in this proceeding on July 26,

1982.

A Petition for Rehearing was denied

and the suggestion for Rehearing en banc

was rejected by the United States Court

of Appeals for the Winth Circuit on

September 20, 1982.

OPINIONS BELOW

A copy of the Winth Circuit Court of

Appeals original opinion filed on

March 15, 19862, is attached as Appendix

"A". The order of the Court of Appeals

requesting Appellants’ specific response

to Appellees’ Petition for Rehearing is

attached as Appendix "B". The order of

the Court of Appeals denying Rehearing,

withdrawing the March 15, 1982, opinion

and superseded by the July 26, 1982,

Opinion is attached as Appendix "c".

This superseding opinion is attached as

Appendix "DD". Lastly, the order of the

Court of Appeals denying Appellants‘

Petition for Rehearing and Suggestion

for Rehearing en banc is attached as

Appendix “E".

JURISDICTION

The judgment of the Court of Appeals

for the Ninth Circuit became final when

the Petition for Rehearing was denied

and Suggestion for Rehearing en banc was

rejected on September 20, 1982. This

Court's jurisdiction is invoked under

Title 28, United States Code, §1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment to the Constitu-

tion provides in pertinent part:

"[No person shall] be deprived of

life, liberty, or property, with-

out due process of law..."

3.

The Fourth Amendrainc to the Constitu-

tion provides in pertinent part:

"The right of the people to be

secure in their persons, houses,

papers and effects, against un-

reasonable searches and seizures,

shall not be violated, ..."

STATEMENT OF THE CASE

On June 19, 1980, a federal grand

jury for the Eastern District of Cali-

fornia indicted defendants, Jose Inez

Ambriz-Ambriz (hereinafter referred to

as Ambriz), petitioner Rafael Astorga-

Torres, (hereinafter referred to as

Rafael), and Jesus Torres-Torres (here-

inafter referred to as Jesus).

Petitioner Rafael was charged in four

counts:

(1) That commencing on or about June

11, 1980 he conspired to distribute

heroin.

4.

(2) Count Two (2) of the indictment

charged the petitioner with possession

with intent to distribute heroin on or

about June ll, 1980.

(3) Count Three (3) of the indict-

ment charged the petitioner with assult

on federal officers with a deadly wea-

pon.

(4) Count Four (4) of the indictment

charged petitioner with the unlawful

carrying of a firearm during the commis-

sion of a felony.

On June 23, 1989, petitioner Rafael

and Jesus entered pleas of not guilty to

all counts of the indictment. At a

later date, prior to the trial, co-

defendant Ambriz entered a guilty plea

to the indictment.

On August 22, 1980, petitioner's

Motion to Supress Evidence was denied.

Prior to trial the court conducted a

hearing to rule on the admissibility of

evidence found in the septic tank and

ruled that the evidence was admissible.

Throughout the jury trial the peti-

tioner made timely objections to the

admissibility of certain evidence and

testimony.

On November 24, 1980, at the close of

the government's case, petitioner made a

motion for judgment of acquittal pur-

suant to Rule 29 of the Federal Rules of

Criminal Procedure, which motion was

denied. (Reporter's Transcript [R.T.]

1367.)

On November 24, 1980, the Court ruled

on the use of various jury instructions

to which the petitioner made timely

objections.

On November 25, 1980, the jury found

the petitioner guilty as charged in all

counts of the indictment.

On January 19, 1981, petitioner was

sentenced to the custody of the Attorney

General on Counts I and II and to a

concurrent period of twelve years with a

six year special parole term, and on

Counts III and IV to a concurrent period

of three years, to run consecutive to

Counts I and II. The petitioner was

therefore sentenced to a total period of

fifteen yeurs.

On January 19, 1981, petitioner filed

a Notice of Appeal to the Ninth Circuit

Court of Appeals.

On March 15, 1982, a panel of the

Ninth Circuit Court of Appeals reversed

petitioner's conviction of Counts I and

7.

II and remanded the case for a new

trial.

On March 27, 1982, the government

filed a Petition for Rehearing and Sug-

gestion for Rehearing en banc.

_ On May 21, 1982, a panel of the Ninth

Circuit directed petitioner to respond

to the issue of whether a certain state-

ment was inadmissible hearsay.

On July 26, 1982, the same three

judge panel of the Ninth Circuit ex-~-

pressly reversed its own opinion of

March 15, 1982. The court withdrew its

March 15, 1982 opinion, affirmed peti-

tioner's conviction of Counts I, III and

IV and reversed petitioner's conviction

of Count II.

On August 12, 1982, petitioner filed

a Petition for Rehearing and Suggestion

for Rehearing en banc.

On September 20, 1982, the Ninth

Circuit Court of Appeals denied this

Petition and rejected the Suggestion for

Rehearing en banc.

STATEMENT OF FACTS

I. Motion To Supress

On August 22, 1980, the Court heard

petitioner's Motion to Supress. The

government admitted that there was no

search warrant obtained for the search

of the motel room.

The testimony at the hearing demon-

strated that on May 3, 1980, and May 14,

1980, Ambriz, by himself, made hand-to-

hand sales of heroin to government

agents (R.T. 173-175).

On June 10, 1980, Ambriz told under-

cover agent Delgado that he was going to

make another sale of heroin to him on

June 11, 1980, and that he may bring

some guards (R.T. 176). It was, in

effect, stipulated that the source of

the heroin to Ambriz was an “old man"

from Sinoloa, Mexico and therefore not

the defendant Jesus or petitioner Rafael

(R.T. 194-195).

On June 11, 1980, government agents

conducted a surveillance of Ambriz's

residence in South Gate, California.

Agent Quander testified that on the

morning of June 11, 1980, he observed

Ambriz alone drive his green Mustang

from his residence to the Weatherby Gun

Shop and back twice (R.T. 32, 33.). He

was then seen driving to a hardware

store and back to his residence alone,

He was observed leaving his residence

again and was lost in traffic. The

officers next saw him driving his

10.

Mustang with a passenger identified as

defendant Torres. They went to a park-

ing lot near a 7-1l store where they

parked. Rafael went over to a blue

Camero where he met Jesus. Rafael and

Jesus took the Camero and got gas.

Ambriz was seen going into the Tri City

Gun Shop and purchasing some shells.

Later the two cars, with Ambriz in the

green Mustang and Rafael and and Jesus

in the Camero, were observed driving up

Interstate 5 to Tulare County.

Agent Quander testified that at this

point they did not have probable cause

to obtain an arrest or search warrant

(RL. 43).

Agent Plavan testified that at around

3:00 p.m. on June 11, 1980, the Mustang

and the Camero pulled into the parking

lot of the Sky Ranch Motel in Tulare

ll.

(R.T. 47-48). Ambriz checked into Room

7 and Jesus and Rafael checked into Room

4. Rafael was seen taking a paper bag

out of the Camero and bringing it into

Room 4, then bringing it back out to the

Camero, and then back into Room 4 (R.T.

47).

Agent Delgado testified that Ambriz

called them and told him that he was

staying in Room 7 (R.T. 178). He testi-

fied that the plan was that he would

test the heroin in Room 7 (R.T. 178).

Agent Plavan testified that just

prior to 5:00 p.m. he went to the motel

office and told Mr. Raga, the manager/

owner, that they were investigating a

narcotics case (R.T. 49-50). At that

time he obtained the manager's consent

to enter Rooms 4 and 7 (R.T. 51, 132).

12.

Agent Delgado testified that about

5:00 p.m. he met Ambriz alone in the

parking lot of the motel. He asked

Ambriz where the heroin was and Ambriz

told him it was in his room (Room 7).

Ambriz went to room 7 and came out with

a bag, showed him the heroin, and Del-

gado walked to his car, ostensibly to

get the money (R.T. 180). Agent Delgado

then took off his hat which was the pre-

arranged arrest signal, and Ambriz was

arrested and taken into custody outside

the motel in the parking lot (R.T. 182).

At this point cgeveral (which at trial

it was determined to be approximately

15) state and federal officers converged

on Room 4, banging on the door and yell-

ing in Spanish and English that they

were federal police (R.T. 52). About

thirty seconds later an officer thought

13.

he heard a clicking sound of a gun in-

side the room. They immediately kicked

in the door, and a gun battle ensued

(R.T. 52-54). After approximately ten

minutes a tear gas canister was shot at

the room and the officers observed the

weapons being thrown out of the room

(R.T. 55). The petitioner Rafael came

out of the room with his hands up (R.T.

55). He had been seriously wounded in

the gun battle. He came out, laid face

down on the pavement, was arrested and

was taken into custody in the parking

lot outside the motel room (R.T. 55, 65,

88). Thereafter, Jesus crawled out of

the motel room and collapsed on the

pavement. He was arrested and taken

into custody in the parking lot (R.T.

55, 56, 65.). Jesus was seriously in-

jured in the gun battle (R.T. 88, 156).

14.

It should be noted that at trial it was

shown that the officers feared that

Jesus was going to die (R.T. 345-346).

Both were secured and subsequently taken

to a hospital for emergency care.

Agent Plavan testified that he ar-

rested Jesus and Rafael for distribution

of heroin and conspiracy to distribute

heroin based upon the information that

they had been "involved" with Ambriz in

the Los Angeles area (R.T. 65).

Agent Delgado testified that they had

been advised that there were only three

suspects total -- Ambriz, Jesus and

Rafael (R.T. 197).

Agent Plavan testified that after he

arrested and secured Jesus and Rafael,

in the parking lot outside of the hotel,

that he entered Room 4 (R.T. 84). As he

entered the room Agent Hendrix yelled to

15.

him that all was clear (R.T. 95). He

testified that as he understood it,

Agent Hendrix had preceded him and had

secured the room (R.T. 84). It should

be noted that at the trial in this mat-

ter Agent Hendrix testified that he had

gone into Room 4 and found that there

was no one in there and that he said it

was secure (R.T. 366, 954).

Agent Plavan then entered the hotel

room which he described as being one

large room and a bath (R.7. 61). He

testified that he visually inspected the

main room, walked into the bathroom and

heard and saw water running full in the

sink. At that time he inspected the

toilet bowl and found torn papers, docu-

ments and currency. These documents

included the drivers’ iicenses of Rafael

and Jesus, a wallet and miscellaneous

16.

money and pictures. He reached into the

toilet bowl and put the documents on top

of the tollet (R.T. 56). He testified

that he did not seize anything at that

time (R.T. 90).

Much later that night, without any

warrant, the agents returned to the room

and searched it and seized the documents

in the bathroom and photographed the

room (R.T. 191). The next day the

agents obtained a search warrant for the

automobiles and found nothing (R.T. 101-

102, 192).

At the conclusion of the hearing the

petitioner's Motion to Suppress the

documents found in the toilet bowl in

Room 4 was denied. The court stated

that it denied the motion on the grounds

that the manager consented to the search

17.

and that it was incident to the arrest

of the appellants (R.T. 214).

The Ninth Circuit Court of Appeals

upheld the denial of petitioner's Motion

to Suppress (Appendix "D", Op. at p.

4). The Court found that Agent Plavan's

initial warrantless entry into the motel

room was proper (Op. at p. 4). The

Court reasoned that this entry was jus-

tified as a protective search for addi-

tional dangerous persons, to guard

against threat of fire created by the

tear gas canister and to prevent des-

truction of evidence (Op. at p. 5).

Further, the agents could later return

without a warrant to retrieve the docu-

ments seized from the toilet during the

earlier "justifed" entry, because “there

was no further prejudicial intrusion

upon [petitioner's] privacy, especially

18.

in light of [his] ciear abandonment of

the seized items." (Op. at p.6.)

II. The Triv«

The government's theory of the case

was that Ambriz had brought fifteen (15)

ounces of heroin with him to the motel,

that he delivered seven (7) ounces to

Agent Delgado and left the other eight

(8) ounces with Jesus and Rafael in Room

4. Further, that Jesus and Rafael ini-

tiated a gun battle with the agents for

the purpose of destroying the contraband

and flushed the "“missing" eight (8)

ounces down the toilet.

The government offered the following

evidence in an effort to prove that

Jesus and Rafael actually possessed the

eight (8) ounces of heroin which Ambriz

19.

was supposed to, but did not, deliver on

June ll.

Ambriz had told the Agent Delgado

that he would sell him fifteen (15)

ounces of heroin on June 11 at $3,300.00

per ounce for $49,500.00.

On June 10 he told Delgado that he

would bring guards with him (R.T. 190-

210.) but that the transaction would be

with him alone (R.T. 198-199). However

on June 11 he handed Agent Delgado a bag

containing only 7 condoms each holding

one (1) ounce of heroin (R.T. 239-242).

A motel brochure was found in Room 7

with the figures seven (7) times thirty-

three (33) and at the bottom a total of

$49,500.00 (R.T. 1072-1076, 705-745).

These numbers corresponded to the

volume Agent Delgado was to receive and

the price he was to pay on June 11.

20.

The evidence against petitioner at

most showed that he was associated with

Ambriz but in no way supported that he

knew Ambriz possessed heroin or

possessed it himself. The only evidence

regarding the petitioner was that he was

observed briefly speaking with a lady

and Ambriz in the yard of the Ambriz

residence on May 14, 1980 (R.T. 397) and

that he drove up to the Sky Ranch Motel

with Ambriz and Jesus on June 11, 1980,

and checked into Room 4 with Jesus. All

of the drug transactions and conversa-

tions were with and by Ambriz alone.

As the trial court observed there was

no proof prior to June ll that a con-

spiracy existed, i.e. that anyone other

than Ambriz was knowingly involved in

the sale of the heroin. Further, as the

trial court noted, the evidence at the

21.

end of the government's case at most

suggested that on June 10, a conspiracy

was about to be formed because of

Ambriz's June 10 statement that he was

going to bring guards with him (R.T.

1283-1286). Ambriz repeatedly stated

that the transaction was to be with him

alone (R.T. 198-199, 212).

A vast majority of the testimony

during the three week trial related to

the May 3 and May 14 heroin transactions

between Ambriz and the agents prior to

June 11, 1980. These events occurred

prior to the alleged date of the con-

spiracy, without any demonstrated invol-

vement or presence of the petitioner.

Over petitioner's objection, the Court

admitted into evidence the heroin pur-

chased from Ambriz on May 3, May 14 and

June 11 and denied petitioner's motion

22.

to strike testimony regarding the acts

and declarations of aAmbriz prior to

June 11 (R.T. 1269, 1322).

Agent Delgado testified that on

May 3, 1980, he and Agent Camarena met

with Ambriz alone and had a conversation

with him in which they purchased an

ounce of heroin from him for $3,350.00

(R.T. 173-175). He testified that at

that time he told Ambriz that if they

liked the heroin they “would get in

contact with him, and probably order up

some more." (R.T. 175.) The condom of

heroin he received on May 3, 1980, was

identified by the witness (R.T. 176).

Agent Delgado testified that after

May 3, 1980, 2 had additional conversa-

tions with Ambriz (R.T. 178). He testi-

fied that on May 14, 1980, he purchased

two ounces of heroin from Ambriz alone

23.

for a total of Sixty-six Hundred Dollars

($6,600.00) (R.T. 178). He then identi-

fied the heroin purchased on that date

(R.T. 179).

He testified that between May 14 and

June 11, 1980, he had several conversa-

tions with Ambriz negotiating the deli-

very of heroin (R.T. 183). He testified

that they spoke about the purchace of

thirty ounces of heroin for $99,000.00

(R.T. 183-184).

The conrt agreed with the petitioner

that the statements or conduct of Ambriz

made prior to the formation of the al-

leged conspiracy were not admissible

against petitioner (R.T. 1288-1289).

Further, that there was no way the pro-

secutor could tie Jesus or Rafael to the

May 3 transaction (R.T. 1288-1289). The

court ultimately ruled that the evidence

24.

was admissible against Jesus and Rafael

on the grounds that it was relevant to

the case and that it tended to establish

a “course of conduct" by Ambriz (R.T.

1327). Accordingly, the Court gave a

limiting instruction (R.T. 1498-1501).

The government's comments during

argument on the admissibility of

Ambriz's conduct and statements reveal

that without this evidence “all [the

government had] is seven ounces of

heroin and some heroin found in condoms

in the septic tank." (R.T. 1291, lines

16-19; see below.)

The prosecutor argued that the acts

and declarations of aAmbriz prior to

June ll, 1980, were necessary to prove

that “Jesus and Rafael were members of

the conspiracy to distribute heroin on

June 11, that Jesus and Rafael were in

possession of heroin with the intent to

distribute it, and that Jesus and Rafael

initiated a gun battle with the agents

for the purpose of disposing of the

contraband." (R.T. 1314.)

The government offered the following

evidence to show that Jesus and Rafael

had flushed the “missing" eight (8)

ounces down the toilet.

Approximately two months after the

arrest of Jesus and Rafael, federal

agents pumped out one of the septic

tanks of the motel and found twelve (12)

condoms. Three of these were saved and

admitted into evidence at trial. Two of

the condoms were partially torn and had

knots on the end (R.T. 253-258). The

third condom had some liquid and eub-

stance in it (R.T. 251-252).

The condoms were analyzed and the

partially torn condoms contained no

controlled substance. The one condom

with the substance in it was analyzed

and found to contain heroin of seven

percent (7%) purity (R.T. 842-844). The

heroin seized from Ambriz on June 11 was

found to be fourteen percent (14%) pure

(R.T. 830-837). The chemist testified

that the liquid from the septic tank in

the condom would lower the percentage of

purity of the heroin (R.T. 842).

There were several septic tanks at

the motel and room 4 and other rooms

flushed into the septic tanks where the

evidence was found. Room 7 and other

room flushed into other tanks (R.T.

695).

The evidence showed that the heroin

seized from Ambriz on June 11, 1980, was

27.

tied in Trojan condoms with a date of l-

80, that the two partial condoms found

in the septic tank were Trojan condoms

Gated 12-79 and that the “full condom"

was a Trojan condom but that you could

not read the date. All that could be.

seen was the number 9 (R.T. 844-847).

Mr. Brenner of Young's Rubber Corpora-

tion, who manufacture Trojan condoms,

testified that a Trojan condom dated 12-

79 would probably reach the market by

Pebruary, 1980, but not before December,

1979 (R.T. 641-7).

The documents found in the toilet of

Room 4 were analyzed and the ch<mical

acetylmorphine was found on them _(R.T.

848-849). The chemist testified that

acetymorphine can be formed by the

breaking down cf heroin when mixed with

water (R.T. 852).

Rafael was seen walking out to the

Camero and picking up a brown paper bag

and walking into Room 4 and then back

out to the car with the bag and back

into the room (R.T. 491-496). No brown

paper bag was found in Room 4 (R.T.

1250).

During the trial, this testimony was

thoroughly impeached. The testimony at

trial revealed that by the time the

septic tank was pumped by the agents in

August, 1980, it had not been emptied

for almost a year (R.T. 700). Mr. Raga,

the motel manager, testified that the

eight toilets for Rooms 1, 2, 3, 4, 30,

31, 32 and 33 flush into the subject

septic tank (R.T. 701). He testified

that between the period of January,

1980, and August, 1980, alone the rooms

had been rented out to various people

for two hundred and twenty-one (221)

Gays (R.T. 704). There were times when

people would rent these rooms for only a

few hours and that he gets sort of a

"mixed clientele", charging $18.00 to

$22.00 per night (R.T. 753-755). He

admitted that during this time he had

called the Sheriff's Department to come

out to evict people who were not welcome

there (R.T. 702). He said that during

this ten month period he personally

called the police to his motel to kick

out people three or four times (R.T.

763).

The testimony of Agent Delgado re-

vealed that when he pumped out the tank

in August, 1980, two months after the

arrest of appellants, he found and took

at least twelve other condoms (R.T. 254,

269.). He testifieé that there were

30.

still others that could have gone

through the screen and not been caught

(R.T. 261). He testified that he looked

at these condoms and threw out all but

the three he saved for evidence (R.T.

254). He was not sure if the condoms he

Giscardeé were Trojan condoms and didn't

note the dates of any of them (R.T.

273). He testified that he discarded

them because he did not think they were

important because they were not tied at

the top (R.T. 254). Appellants moved to

dismiss on the grounds of destruction of

evidence and the motion was denied (R.T.

282).

Mr. Brennen of the Young Drug Pro-

ducts Corporation, who manufacture Tro-

jan concvms, testified that his company

manufactured approximately twelve mil-

lion Trojan condoms in December, 1979,

31.

and that twenty percent are distributed

in the west (R.T. 654-663). He testi-

fied that it is possible for a 12-79

condom to reach a retail market after a

January, 1980, condom (R.T. 662).

Mr. James A. Heagy, a forensic chem-

ist for the 0.5. Department of Justice,

Scug Enforcement Administration, was

called by the prosecution (R.T. 830).

He testified that he analyzed some of

the papers which were found in the motel

room toilet and found that there was

very small “trace” of acetylmorphine on

some of the papers (R.T. 850, 873). He

testified that acetylmorphine can be

chemically formed with heroin breaks

down but that he could not say that the

trace of acetylmorphine found on the

paper was from any heroin in the toilet

and could not tell when, or if, the

32.

papers had come in contact with heroin

(R.T. 854). He testified that normally

heroin would break down into acetylmor-

phine quickly, after a period of days it

woul? be all gone, and he did not get

the papers until after the state labora-

tory had analyzed them (R.T. 861).

Stephen John O'Clair of the Califor-

nia Department of Justice, Fresno

Regional Laboratory, testified that he

analyzed the documents on June 20, 1980,

before they went to Mr. Heagy of the

D.E.A (R.T. 879). He testified that he

examined the papers under a stereomicro-

scope looking for any kind of powder

residue and did not find any. He found

some powder residue in the wallet but

the tests he ran were negative for any

drugs. He testified that, in his opin-

ion, if papers were dumped into a toilet

33.

with heroin, it would leave a microsco-

pic residue and that there was none

present on the subject papers when he

examined them (R.T. 889-890).

The state chemist also testified that

when he examined the papeis, he placed

them on a work bench, which, over the

years, had contained heroin and that it

is possible that the fibers of the

papers would have absorbed the heroin on

the work bench (R.T. 893).

It should be noted that although

Agent Plavan testified that he thought

the water in the toilet in Room 4 was

brown when he saw it, Detective Diaz,

who was in charge of the crime scene

investigation and who was assigned the

task of observing, marking and preserv-

ing the evidence, testified that the

34.

water in the toilet was clear (R.T. 522,

1222, 1263).

The government seemed to point out

the fact that the petitioner had been

seen carrying a paper bag into Room 4

and that the bag was not found by the

agents in the room, thereby implying

that it was flushed down the toilet with

the drugs. However, no bag or remnants

of a bag was found in the septic tank.

Agent Diaz did testify that he found

discarded paper bags when he was search-

ing the parking lot area (R.T. 1266).

Agent Rodriguez testified that he is

able to detect the odor of neroin and

that if there was a large amount of

heroin in that room, even if completely

sealed in rubber condoms, he could smell

it as soon as he walked through the door

(R.T. 1155, 1166).

35.

No one testified that they detected

any smell of heroin in Room 4. No one

testified that they saw petitioner at

any time have, hold or dispose of any

heroin. No one testified that they

heard the sound of a flushing toilet

from Room 4 at any time from the time

the officers announced their presence to

the time of the arrest.

The court denied petitioner's motion

for judgment of acquittal pursuant to

Rule 29 as to Counts I - IV (R.T. 1367).

III. Jewell Instruction

Over the objection of the petitioner,

the Court ruled that it would give the

following instruction based upon the

holdings in the cases of United States

v. Jewell, 532 F.2d 911, and United

States v. Valle Valdez, 554 F.2d 911:

36.

"If you find that a defendant now

on trial was not in possession of

the heroin when it was brought to

Tulare County, but you find that

the defendant was present to

guard aAmbriz-Ambriz, you may

still find the defendant guilty

as to the offense charged in

Count II of the Indictment if you

find beyond a reasonable doubt

that, one, the defendant acted

with a conscious purpose to avoid

learning that Ambriz-Ambriz was

going to be selling heroin, and

two, was subjectively aware of a

high probability that Ambriz-

Ambriz was to sell some heroin.

Thus, actual or positive know-

ledge is not necessary to convict

the accused if he was subjec-

tively aware of a high probabil-

ity of the crucial fact, gape

that Ambriz-Ambriz was to sell

some heroin, even though he con-

sciously or deliberately disre-

garded that probability in an

effort to remain ignorant of the

fact." (R.T. 1506.)

The petitioner argued that the in-

struction was not applicable and highly

prejudical since (1) neither appellant

took the stand, and there was no evi-

dence that they ever denied anything;

(2) there was no evidence that pointed

37.

in the direction of deliberate ignor-

ance; and (3) this instruction has not

been applied nor should be applied to

the facts present before this Court

(R.T. 1395-1397).

The Court not only proceeded to give

this instruction to the jury, but empha-

sized its importance by reading the

instruction twice, stating in between

each reading, "I am going to read this

to you again -- because it's -- you've

got to deal with this instruction care-

fully and deliberately.” {(R.T. 1505-

1506.) At the conclusion of the trial

the petitioner was found guilty on all

counts.

The Ninth Circuit found that the

court erred in giving the Jewell in-

struction and this error was far from

38.

harmless. The court reversed peti-

tioner's conviction of Count II (the

substantive possession count), but af-

firmed petitioner's conviction of Count

I (conspiracy to distribute heroin).

(Appendix "D", Op. at p. 10.)

a

SEARCHES AND SEIZURES, AND

THE DECISION OF THIS COURT IR

MINCEY V. ARIZOWA, 537 U.S.

365 AND STONER V. CALIFORNIA,

376 U.S. 4863 (1964).

The Winth Circuit erroneously held

that the subsequent search of the peti-

tioner‘'s motel room, without a warrant,

39.

many hours after Jesus' and the peti-

tioner's arrest, was justified on the

theory that the petitioner abandoned the

seized items when arrested (Appendix

"Dp", Op. at p. 6). This holding is

contrary to the overwhelming weight of

authority. See, Eng Fung Jem v. United

States, 281 F.2d 803 (9th Cir. 1960);

United States v. Agapito, 620 F.2d 324

(24 Cir. 1979); Mincey v. Arizona, 437

U.S. 385 (1978); Stoner v. California,

376 U.S. 483 (1964).

There is no question that petitioner

had a right to privacy in his motel

room. In Eng Fung Jem v. United States,

supra, state and federal officers con-

ducteé a warrantless search of appel-

lant's motel room and seized the drugs.

In reversing the conviction, the court

stated:

40.

"Surely the guarentee of the

Fourth Amendment may not be conm-

promised by nice distinctions as

to the length of time a defendant

remains as a guest of the hotel

at which he is stopping. The

right of privacy must be accorded

with equal vigor both to tran-

sient hotel sts and to occu-

pants of Tete, permanent

dwellings."

Eng Fung Jem v. United States,

supra, at 805.

It should be noted that this right to

privacy is not forfeited or waived mere-

ly because there was a shootout during a

narcotics raid. See, Mincey v. Arizona,

437 U.S. 285, 391 (1978).

It is well-settled that a person has

a reasonable expectation of privacy in a

motel room that cannot be relinquished

by a motel clerk. Eng Fung Jem v. United

States, supra; Stoner v. California,

supra.

41.

Neither can the search be justified,

as the Ninth Circuit held, as a "“secur-

ity check" in order to insure that no

additional persons or danger was within

(Appendix "D", Op. at p. 5). ‘The police

could not have reasonably believed that

additional dangerous persons were pre-

sent. Cf. United States v. Gardner, 627

F.2d 906, 911 (9th Cir. 1980). Jesus

and Rafael had been under constant sur-

veillance for many hours, the agents

Clearly knew and were in fact advised

that there were only three suspects

involved (Ambriz, Rafael and Jesus)

(R.T. 197), and at no time did the

agents hear or see anyone in the room

other than Jesus and Rafael who, by the

time of entry, were under arrest.

As in United States v. Agapito, 620

P.2d 324, 336 (24 Cir. 1980), the

42.

"security check" exception to the

warrant requirement is inapplicable. In

Agapito, the agents' constant surveil-

lance for two days indicated the room

was empty; the agents at one point

looked through the open door and never

saw or heard anyone in the room other

than the appellants who were under

arrest at the time of the entry.

Moreover, in the present case, Offi-

cer Hendrix had checked the room and

told Agent Plavan that all was clear

before Agent Plavan entered the room.

(R.T. 84, 366, 954) Thus, there was no

reason for Agent Plavan to enter and

search the room.

Contrary to the Ninth Circuit's hold-

ing, Agent Plavan's entry was not rea-

sonable to guard against preserving

evidence from possible destruction. At

43.

the time of the arrest, the officers had

every reason to believe that Ambriz

alone had all the drugs in Room 7.

Ambriz had previously told the agents

that the drugs were in Room 7 and in

fact went to Room 7 to get the drugs.

There was no reason to believe that any

of the drugs were in Room 4.

Petitioner submits that the search

and seizure of evidence in Room 4 did

not fall within any recognized exception

to the warrant requirement.

ARGUMENT

It is well-established that evidence

obtained by a federal officer as a re-

sult of an illegal search and seizure is

inadmissible into evidence in a federal

prosecution. The exclusionary rule

extends to any evidence obtained as a

44.

result of information or leads received

or secured by means of an unreasonable

search and seizure. Silverthorne Lumber

Co. v. United States, 251 U.S. 385

(1920); Weeks v. United States, 232 U.S.

383 (1914).

It is also settled law that a war-

rantless search can survive constitu-

tional inhibition only upon a showing

that it comes within a recognized excep-

tion to the rule that a search must rest

upon a search warrant; e.g., if the

search is contemporaneous with an arrest

and confined to the vicinity thereof, or

that a search is made with consent. In

our case, since there was no search

warrant, and the burden thus fell upon

the government to establish that the

search falls within some exception to

the warrant requirement. Stoner v.

45.

California, 376 U.S. 483, 486 (1964);

Jones v. United States, 357 U.S. 493,

499 (1958); United States v. Mapp, 476

F.2d 67 (2nd Cir. 1973); Agnello y¥y.

United States, 269 U.S. 20 (1925); Jef-

fers v. United States, 342 U.S. 48, 51

(1951).

The petitioner respectfully submits

that there was no probable cause to

arrest the petitioner or to search the

bathroom. As set forth in the statement

of facts herein, Agent Quander admitted

that at the time the petitioner was seen

driving to Tulare, they had no probable

cause to arrest him. There was nothing

that the petitioner did subsequent to

that time which would have provided

sufficient cause to arrest him for con-

spiracy to distribute heroin or posses-

sion of heroin. All the petitioner did

46.

was check into motel Room 4 and was seen

carrying a bag into the room. At the

time of the arrest, the officers had

every reason to believe that Ambriz

alone had all the drugs in Room 7 and

there was no reason to believe that any

of the drugs were in Room 4. Ambriz had

previously told the agents that the

drugs were in Room 7 and in fact went to

Room 7 to get the drugs.

At the time the officers attempted to

arrest the petitioner, the only informa-

tion known to them was that the peti-

tioner had been in the company of An-

briz. Mere association with Ambriz and

presence on the scene is not sufficient

to find that they were in possession of

contraband. Arellanes v. United States,

302 F.2d 603, 606 (9th Cir. 1962);

47.

United States v. Camacho, 528 F.2d 464

(9th Cir. 1976).

Should this Court decide, however,

that there was probable cause to arrest

the petitioner, it is well established

that a finding of probable cause cannot

of itself justify a search without a

search warrant. Johnson v. United

States, 333 U.S. 1068, 92 L.Ed. 436

(1948); Eng Func Jem v. United States,

281 F.d 803 (9th Cir. 1960).

Petitioner contends that the trial

court erred in finding that the search

was not justified by the consent of the

motel manager. It is well-settled that

a motel clerk does not have the author-

ity to give consent to a police search

of a guest's room. Stoner v. Califor-

nia, supra, See also, Chapsan v. United

States, 365 U.S. 610 (1961), (landlord

48.

has no authority to consent to search of

tenant's rented premises).

Finally, petitioner respectfully

submits that the search and seizure

cannot be justified as incident to the

lawful errest of petitioner.

In the landmark case of Chimel v.

California, 395 U.S. 752, 89 S.Ct. 2034,

23 L.Ed.2d 685 (1969), the United States

Supreme Court held that a search inci-

dent to a lawful arrest made without a

warrant can extend only to areas within

the defendant's immediate control which

was construed to mean the area from

which he might gain possession of a

weapon or destructible evidence. The

court clearly stated in that case that

there is no justification for searching

rooms other than that in which the ar-

rest occurred pursuant to the arrest.

49.

In Vale v. Louisiana, 399 U.S. 30, 90

§.Ct. 1969 (1970), the court held that a

“search may be incident to an arrest

‘only if it is substantially contempor-

aneous with the arrest and is confined

to the immediate vicinity of the ar-

rest'".

In Vale, the appellant was arrested

on the front steps of the premises imme-

diately after the arresting officers had

observed a sale of narcotics. The court

held that a warrantless search of the

house was illegal and cou!’ not be jus-

tified as a search incident to an ar-

rest, stating that if the search is to

be upheld as incident to the arrest, the

arrest must take place inside the house,

not somewhere outside -- whether two

blocks away, twenty feet away or on the

sidewalk near the front steps. The

search must be constitutionally confined

to the area within the arrestee's reach

at the time of his arrest. Vale v.

Louisiana, supra, citing Chimel v. Cali-

fornia, supra.

In the matter before this Court, both

Jesus and Rafael were arrested outside

of the motel room in the parking lot.

They had been seriously wounded, were

totally secured and in custody in the

parking lot before the officers entered

the motel room. Although the officers

knew there were only two possible sus-

pects that had been in the room, Officer

Hendrix secured the room and advised

Agent Plavan that all was clear. It was

only after all was secured that Agent

Plavan went into the motel room and

discovered the documents in the toilet.

Even then, he did not seize the

51.

evidence. It was not until approxi-

mately midnight that night, long after

both Jesus and Rafael were in custody at

the hospital, did the agents go back

into the motel room and seize the docu-

ments. This search and seizure, without

warrant, can hardly be said to have

occurred contemporaneously with the

arrest of petitioner and Jesus in an

area within their immediate control.

The petitioner respectfully contends

that there was no reason why the offi-

cers should not have been required to

obtain a warrant.

For all of the foregoing reasons, the

motion to suppress should have been

granted.

II.

gee

ot

i!

:

as

a

:

;

The Ninth Circuit agreed with peti-

tioner that the trial court erred in

giving the Jewell instruction. The

district court twice instructed the jury

as follows:

"If you find that a defendant now

on trial was not in possession of

the heroin when it was brought to

Tulare County, but you fi that

the defendant was present to

guard aAmbriz-Ambriz, you may

still find the defendant guilty

as to the offense charged in

Count II of ‘She Indictment if you

find beyond a reasonable doubt

that, one, the defendant acted

with a conscious purpose to avoid

learning that Ambriz-Ambriz was

53.

going to be voy pe | heroin, and

two, was subjectively aware of a

high probability that Ambriz-

Ambriz was to sell some heroin.

Thus, actual or positive know-

ledge is not necessary to convict

the accused if he was subjec-

tively aware of a high probabil--

ity of the crucial fact, namely,

that Ambriz-Ambriz was to sell

some heroin, even though he con-

sciously or deliberately disre-

garded that probability in an

effort to remain ignorant of the

fact." (R.T. 1506.)

The Ninth Circuit properly found that

the Jewell instruction was not appro-

priate in this case where the petitioner

did not claim lack of knowledge and no

facts pointed in the direction of deli-

berate ignorance. (Op. at.p.9); United

States v. Erwin, 625 F.2d 838 (9th Cir.

1980); United States v. Maretta-Bejanno,

552 F.2d 1323, 1325 (9th Cir. 1977).

The Ninth Circuit articulated the pre-

judice suffered in this case.

"A given here, the instruction

invited the jury, if unable to

54.

conclude that appellants had been

in actual possession of the eight

ounces of heroin, to find that

they were in constructive posses-

sion of the seven ounces pos-

sessed by Ambriz. To find such

constructive possession, the

instruction required the jury to

find only that appellants knew,

or should have known, that Ambriz

had heroin he planned to sell.

Yet we have held that ‘'(m)ere

proximity to the druc, mere pre-

sence, or mere association with

the person who does control the

drug is insufficient to support a

finding of possession."

United States v. Batimana, 623

F.2d 1366, 1369 (9th Cir.) cert.

denied, 499 U.S. 1038 (1980).

Because the government's case as to the

actual possession was not without its

elements of doubt, the court's error in

instructing the jury as to constructive

possession was far from harmless.

The court emphasized the inetruction

by repeating it twice and telling the

jury, "You've got to deal with this

instruction carefully and deliberately."

(R.T. 1505-1506.) It was the only in-

struction which the court read twice.

The Ninth Circuit found that this

error required reversal of Count II (the

substantive possession count).

Petitioner contends, as he did before

the Ninth Circuit, that the prejudicial

error of the Jewell instruction not only

permeated Count II of the Indictment

(the substantive possession count) but

also must, of necessity, have permeated

the finding of guilt on the conspiracy

charge (Count I) since petitioner's

knowing possession was, by the prosecu-

tor's own admission, an integral part of

the conspiracy charge.

It is well-settled that errors in-

volving an instruction which states an

unconstitutional presumption are “harm-

ful per se”. See, Vaccaro v. United

States, 461 F.2€ 626 at 635 (5th Cir.

1972). “When a jury is instructed in an

unconstitutional presumption, the con-

viction must be overturned, though there

was le evitence rt from the e-

sumption to sustain the verdict." Chap-

man v. California, 386 U.S. 18, at 44,

87 S.Ct. 824 at 838, 17 L.Ed.2d 705 at

721-722; Vaccaro v. United States,

supra, at 635 (emphasis in original).

In the matter before this Court, the

Ninth Circuit properly found that the

Jewell instruction erroneously allowed

the jury to presume that the petitioner

was in constructive possession of the

heroin possessed by Ambriz. Based upon

this clear error, the Court reversed the

possession count. The Cuurt admits that

there was doubt in the government's case

57.

as to any actual possession by the Peti-

tioner. Under these circumstances, it

is inconceivable that the jury could not

have relied upon their erroneous finding

of constructive possession in finding

the petitioner guilty of conspiring with

Ambriz to possess the heroin as alleged

in Count I.

Both the trial court and the prosecu-

tor acknowledged that the Jewell in-

struction applied to Count I as well as

to Count II and that the jury could rely

on it to find guilt as to both counts

(R.T. 1414, 1415). This Court cannot be

assured that the jury did not decide

Count II first and then after having

used erroneous criteria to find posses-

sion did not use the finding of joint

possession to conclude that the Peti-

tioner had also conspired to possess and

distribute the heroin, This monumental

error as well would require a reversal

of the judgment on Count I.

CONCLUSION

For the reasons stated above, a Writ

of Certiorari should issue to review the

judgment and opinion of the Ninth Cir-

cuit.

Respectfully submitted,

ALVIN S. MICHAELSON

Attorney for Petitioner

RAFAEL ASTORGA-TORRES