Petition — Lovell v. United States

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82-1229

JAN 3 1993

ALEXANDER L. STEVAS

CLERK

NO.

in the

Supreme Court

of the

United States

October Term, 1982

RONALD DAVID LOVELL, RONALD HENRICH,

and EDWARD ABDENOUR,

Petitioners,

vs.

THE UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

KURT MARMAR, P.A.

Suite 319

Franklin International Plaza

255 Alhambra Circle

Coral Gables, Florida 33134

(305) 443-3303

Counsel for Petitioners

QUESTION PRESENTED FOR REVIEW

WHETHER THE ELEVENTH CIRCUIT'S

APPROVAL OF THE RANDOM SEIZURE

OF THE S/V ENTERPRISE BY A ROVING

COAST GUARD PATROL VIOLATED THE

PETITIONER’S RIGHTS UNDER THE

FOURTH AMENDMENT AND WAS IN

CONFLICT WITH DECISIONS OF THIS

COURT AND THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT.

TABLE OF CONTENTS

Opinion Below ............. | Se AE eee

vnc ae se vesbeees

Constitutional and Statutory

rr

Statement of the Case........................

Reasons for Granting the Writ..............

TABLE OF CITATIONS

Cases Pages

Delaware v. Prouse,

oS nee a ig 5, 6

United States v. Brignoni-Ponce,

Se A NO So ke a Ome 6

United States v. De Weese,

632 F.2d 1267 (5th Cir. 1980), cert. denied

wae!) eee eee 5

United States v. Mazyak,

650 F.2d 788 (5th Cir. 1981), cert. denied

eee) eee I UE eee 4,5

United States v. Piner,

608 F.2d 358 (9th Cir. 1979) ................. 5

OTHER AUTHORITIES

CONSTITUTION OF THE UNITED STATES

FOUR AMOREIONE oo cic tec ccc ceeseves 3

UNITED STATES CODE

pe a 2,5

TABLES OF CITATIONS (Continued)

Cases Pages

Note, High on the Seas: Drug Smuggling, the Fourth

Amendment, and Warrantiless Searches at Sea,

OO TIMPV. Ls. OV, THO ULOOED oc ccc ces enn. 7

3 W. LaFave, Search and Seizure,

NC IEDs 6.06.5 toca sarc ca veww see 7

iv

NO.

in the

Supreme Court

of the

Anited States

October ferm, 1982

RONALD DAVID LOVELL, RONALD HENRICH,

and EDWARD ABDENOUR,

Petitioners,

vs.

THE UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Petitioners, RONALD DAVID LOVELL, RONALD

HENRICH, and EDWARD ABDENOUR, respectfully

urge that a writ of certiorari issue to review the judgment

and opinion of the United States Court of Appeals for

the Eleventh Circuit rendered on November 3, 1982.

OPINION BELOW

The unpublished opinion of the United States Court

of Appeals for the Eleventh Circuit is attached as part

of the Appendix. (App. 2-4). This decision is reflected at

689 F.2d 423.

JURISDICTION

Jurisdiction of this Court is invoked under 28 U.S.C.

§1254(1), to review the judgment and opinion of the

United States Court of Appeals for the Eleventh Circuit.

This judgment and opinion was entered on September

21, 1982 (App. 2-4), and rendered on November 3, 1982,

by the denial of a timely petition for rehearing. (App.

5).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves the interplay between Title 14,

United States Code, Section 89(a), and the Fourth

Amendment to the Constitution of the United States,

which provide as follows:

TITLE 14, UNITED STATES CODE,

SECTION 89(a)

The Coast Guard may make inquiries,

examination, inspections, searches, seizures,

and arrests upon the high seas and waters

over which the United States has jurisdiction,

for the prevention, detection, and suppression

of violations of laws of the United States. For

such purposes, commissioned, warrant, and

petty officers may at any time go on board of

any vessel subject to the jurisdiction, or to the

operation of any law, of the United States,

address inquiries to those on board, examine

the ship's documents and papers, and examine,

inspect, and search the vessel and use all

necessary force to compel compliance.

FOURTH AMENDMENT

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not

be violated, and no warrants shall issue, but

upon probable cause, supported by oath or

affirmation, and particularly describing the

place to be searched, and the persons or things

to be seized.

STATEMENT OF THE CASE

The petitioners were convicted of possessing with

intent to distribute a quantity of marijuana which was

found on board the S/V ENTERPRISE on the high seas

in the Windward Passage. (App. 6-9). The marijuana

was discovered by agents of the United States Coast

Guard following their random stop and seizure of the

ENTERPRISE while on roving patrol. (App. 6-9). During

pretrial proceedings before the United States District

Court for the Southern District of Florida, the petitioners

unsuccessfully sought to suppress the seized marijuana.

(App. 2-4).

On appeal to the United States Court of Appeals

for the Eleventh Circuit, the court followed its earlier

opinion in United States v. Mazyak, 650 F.2d 788 (11th

Cir. 1981), cert. denie+, U.S. ___, 102 S.Ct. 1281

(1982), and held that Title 14, United States Code, Section

89(a)“. . . gives the Coast Guard plenary authority to

stop and board American vessels on the high

seas .. . even in the complete absence of suspicion of

criminal activity.” (App. 3). The instant certiorari

proceeding follows the affirmance below.

REASONS FOR GRANTING THE WRIT

THE ELEVENTH CIRCUIT'S APPROVAL OF

THE RANDOM SEIZURE OF THE S/V

ENTERPRISE BY A ROVING COAST GUARD

PATROL VIOLATED THE PETITIONERS’

RIGHTS UNDER THE FOURTH

AMENDMENT AND WAS IN CONFLICT

WITH DECISIONS OF THIS COURT AND

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT.

This case concerns the constitutionality of the stop

and seizure of the American flag vessel S/V

ENTERPRISE on the high seas at random by a roving

Coast Guard Patrol. The Eleventh Circuit, in affirming

the District Court's refusal to suppress as evidence the

fruits of that seizure, relied upon earlier decisions which

authorized suck Coast Guard activity pursuant to Title

14, United States Code, Section 89a). See e.g. — United

States v. Mazyak, supra, and United States v. De Weese,

632 F.2d 1267 (5th Cir. 1980), cert. denied, US.

102 S.Ct. 358 (1981).

This Court has, however, reached an entirely opposite

result in regard to the random stop of automobiles by

roving law-enforcement patrols. Delaware v. Prouse,

440 U.S. 648 (1979). In that case, this Court found that

police had stopped a motor vehicle only to check the

driver's registration and license. The stop was classified

as “routine,” there being observed no traffic violations.

Upon approaching the automobile, the officer smelled

marijuana and then observed it in plain view. The

executive action in that case was condemned by this

Court on the theory that, without at least an articulable

suspicion that the motorist was unlicensed, or that the

car was unregistered, or that either was otherwise

subject to seizure for a penal violation, the stop simply

was a random act by a roving patrol. As such, it could

not comport with the reasonableness requirement of

the Fourth Amendment. The random nature of the act

was pure executive caprice, and was therefore more

offensive even than the old colonial writ of assistance.

This Court’s holding in Delaware v. Prouse, supra,

was directly applied to Coast Guard seizures of vessels

by the Ninth Circuit in United States v. Piner, 608 F.2d

358 (9th Cir. 1979). There the Court examined a factual

setting where a Coast Guard cutter on routine patrol

stopped and boarded an American vessel for a safety

and document inspection. Two tons of marijuana in

plain view were seized but subsequently suppressed.

The court remonstated against the random stop and

boarding of the vessel after dark for a safety and

registration inspection where no cause existed to suspect

noncompliance:

A stop and boarding after dark must be for

cause, requiring at least a reasonable and

articulate suspicion of non-compliance, or must

be conducted under administrative standards

so drafted that the decision to search is not

left to the sole discretion of the Coast Guard

Officer.

Id. at 361. The Ninth Circuit was quick to note that its

holding was adverse to the well-established position of

the former Fifth Circuit. It justified its position, however,

by pointing out that those cases preceded this Court's

landmark decision in Delaware v. Prouse, supra.

The constitutional policy underlying this view is a

rejection of random selection by the executive branch

as a reasonable act of law enforcement. As early as

1975, roving border patrols were prohibited from stopping

vehicles and vessels without an articulable suspicion.

United States v. Brignoni-Ponce, 422 U.S. 873 (1975). In

Prouse, the random basis for seizure was made unlawful

for all police agencies. The Coast Guard performs as a

policy agency; it may accurately be analogized to a

marine roving patrol. As such, when it acts without a

reasonably founded suspicion that a vessel's documents

are not in order, it runs afoul of the Brignoni-Ponce and

Prouse proscriptions.

The petitioners’ view, that the Fourth Amendment

bars random Coast Guard seizures of vessels, has received

substantial support from scholarly authorities. In his

renowned treatise, Professor LaFave has opined:

It is certainly not fanciful to suggest that the

Prouse decision casts a rather heavy cloud

over the Fifth Circuit’s rulings that Coast Guard

inspections may be conducted purely at random.

3 W. LaFave, Search and Seizure, §10.8(f) at 117 (Supp.

1982). Moreover, in Note, High on the Seas: Drug

Smuggling, the Fourth Amendment, and Warrantless

Searches at Sea, 93 Harv. L. Rev. 725, 741 (1980), the

commentator observed:

Application of fourth amendment balancing

principles to vessel safety searches strongly

suggests that the current practice of completely

discretionary random searches at sea is

unconstitutional.

The instant application by the Eleventh Circuit of

its interpretation of Title 14, United States Code, Section

89(a), has resulted in a serious deprivation of the

petitioners’ Fourth Amendment rights. Prior contrary

decisions of this Court and the Ninth Circuit, as well as

policy statements by legal scholars, compel the

intervention of this Court's writ of certiorari to correct

the erroneous decision below.

Respectfully submitted,

KURT MARMAR, P.A.

Suite 319

Franklin International Plaza

255 Alhambra Circle

Coral Gables, Florida 33134

(305) 443-3303

BY: /s/

KURT MARMAR |

Appendix

INDEX

Opinion of the United States Court of Appeal: for

of I ae rr

Order Denying Rehearing ..................... 5

Stipulation of Facts for the MotiontoSuppress... 6

Judgments of Conviction and Sentencing Orders... 10

App. 1

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 81-5580

Non-Argument Calendar

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

v.

RONALD DAVID LOVELL, RONALD HENRICH,

EDWARD ABDENOUR,

Defendants-A ppellants.

Appeal from the United States District Court for the

Southern District of Florida

(September 21, 1982)

Before RONEY, VANCE and ANDERSON, Circuit

Judges.

ANDERSON, Circuit Judge:

Appellants were found guilty of possession with

intent to distribute marijuana in violation of 21 U.S.C.A.

§955(a) (West 1981) and 18 U.S.C.A. §2 (West 1969).

Appellants raise three issues on this appeal. We affirm

the judgment of the district court.

Appellants’ first contention is that the trial court

erred when it permitted the government to present

live testimony at the pretrial suppression hearing despite a

App. 2

previously entered stipulation of facts. The trial judge

carefully considered this contention, heard evidence on

the issue, and found that there was no “meeting of the

minds” between the parties on the issue to which the

live testimony was addressed — ie., the reasonableness

of the search after the officers were on board the

vessel. Accordingly, the trial judge held that the

stipulation did not preclude the live testimony. We

decline to disturb that finding. A careful reading of the

record indicates that the parties’ concern when entering

the stipulation was the legality of the boarding of the

ENTERPRISE; neither the negotiations leading up to

the stipulation, nor the stipulation itself, were concerned

with the separate issue to which the live testimony

was addressed.

Appellants also contend that the Coast Guard lacked

reasonable suspicion to stop and board the ENTERPRISE.

However, this court has consistently held that 14 U.S.C.A

§8%a) (West 1956) gives the Coast Guard plenary authority

to stop and board American vessels on the high seas to

inspect for safety, documentation, and obvious customs

and narcotics violations, even in the complete absence

of suspicion of criminal activity. See United States v.

Mazyak, 650 F.2d 788 (11th Cir. 1981), cert. denied, ___

US. ___, 102 S.Ct. 1281 (1982); United Stutes vu. De Weese,

632 F.2d 1267 (5th Cir. 1980), cert. denied, __. US.

—___., 102 S.Ct. 358 (1981); United States v. Warren, 578

F.2d 1058 (5th Cir. 1979), modified on other grounds,

612 F.2d 887, cert. denied, 446 U.S. 956 (1980).

App. 3

Appellants’ final contention is that 42 U.S.CA.

§955(a) (West 1981) requires the government to allege

and prove specific intent to distribute marijuana in the

United States. This circuit recently rejected the identical

argument in United States v. Riker, 670 F.2d 987, 988

(11th Cir. 1982).

AFFIRMED.

App. 4

[FILED NOV 2 1982]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 81-5580

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

v.

RONALD DAVID LOVELL,

RONALD HENRICH, and

EDWARD ABDENOUR,

Defendants-A ppellants.

Appeal from the United States District Court for the

Southern District of Florida

ON PETITION FOR REHEARING

(November 3, 1982)

Before RONEY, VANCE, and ANDERSON, Circuit

Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing

filed in the above entitled and numbered cause be and

the same is hereby DENIED.

ENTERED FOR THE COURT:

[Illegible}

United States Circuit Judge

App. 5

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CRIMINAL DIVISION

CASE NO: 81-105-CR-JE

UNITED STATES OF AMERICA,

Plaintiff,

Vs.

RONALD LOVELL et al.,

Defendants.

STIPULATION OF FACTS

Prosecuting attorney for the United States

Government and defense counsel for the defendants

hereby enter into the following stipulation of facts for

the evidentiary hearing on defendants’ motion to suppress

physical evidence and statements unlawfully seized.

It is stipulated as follows:

1. That the defendants have legal standing to

complain for the suppression as evidence of all those

items listed in their motion to suppress since the activity

of the Coast Guard in this case impinged upon the right

of privacy of each defendant.

2. That on March 2, 1981, the defendants were

on board the American flagship S/V Enterprise, sailing

east north-east in the Windward Passage at latitude

and longitude coordinates 19-57.5 north and 73-51 west,

App. 6

and therefore, approximately five hundred (500) nautical

miles from the nearest coastline of the United States.

3. That at the above time and place, the United

States Coast Guard cutter Gallatin approached the S/V

Enterprise and ordered her to “heave to” for boarding.

This decision to accost, halt, and board the Enterprise

was made by the United States Coast Guard at random.

The action of that agency was not supported by judicial

warrant, nor by probable cause or reasonable suspicion

of criminal conduct, nor by consent of any of the

defendants, nor by a state of emergency. It was done

simply because the crew of the Gallatin was on roving

patrol; found Enterprise in close proximity; and halted,

boarded and searched that vessel to determine if any

on-board violations of federal criminal or customs laws

existed.

4. That upon the boarding the S/V Enterprise,

Coast Guard personnel conducted a search of the vessel.

Upon finding a quantity of marijuana, these officers

placed all defendants under arrest and took the S/V

Enterprise in tow.

5. That numerous objects, papers and documents,

including but not limited to marijuana, were seized

from the Enterprise, and as well, from the persons and

effects of the defendants; in addition, each defendant,

as a result of his arrest, made certain statements and

admissions to Coast Guard personnel and police agents

of the United States Government.

6. That the Coast Guard effected the

aforementioned activity under authority of 14 U.S.C.

§89(a) and 19 U.S.C. §1581(a).

App. 7

7. That the Coast Guard, since the beginning of

1975, has pursued a policy of stopping and boarding

vessels at random on the high seas to determine whether

such vessels and their crews are in violation of federal

statutes. Since that time, and in the Fifth Circuit, the

Coast Guard, in the execution of this policy, has been

responsible for the arrest and conviction of numerous

individuals charged similarly to defendants. Those Fifth

Circuit Court of Appeals decisions cited in Paragraph

A of defendants’ Legal Memorandum of their Suppression

Motion are accepted as evidence of the aforementioned

statements.

8. That the instant prosecution against the

defendants is one developed, made and prepared by

the Coast Guard personnel.

9. That, for purposes of the evidentiary hearing

on the defendants suppression motion, ail facts stipulated

to in this pleading shall be received into evidence and

shall consitute the complete factual record of such hearing

in lieu of live testimony.

The parties, therefore, through respective counsels,

enter into this Stipulation of Facts for purposes of the

evidentiary hearing on defendants’ motion to suppress

App. 8

items unlawfully seized; and as proof thereof, this 15

day of April, 1981, at Miami, Southern District of Florida,

they set down and affix their signatures by and through

their respective attorney-of-record.

ON BEHALF OF THE UNITED

STATES GOVERNMENT and

ATLEE WAMPLER, UNITED

STATES ATTORNEY,

SOUTHERN DISTRICT OF

FLORIDA:

/s/ Robert M. Bondi

ROBERT BONDI

Assistant United States Attorney

155 South Miami Avenue

Miami, Florida

Telephone: (305) 350-4471

ON BEHALF OF THE

DEFENDANTS:

/s/ Jack M. Denaro

JACK M. DENARO

Attorney for the Defendants

Office in the Grove, Suite 900C

2699 South Bayshore Drive

Miami, Florida 33133

Telephone: (305) 856-6596

App. 9

[FILED JUN 11 1981]

UNITED STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF FLORIDA

DOCKET NO. 81-105-CR-JE

UNITED STATES OF AMERICA

vs.

RONALD DAVID LOVELL

Defendant

JUDGMENT AND

PROBATION/COMMITMENT ORDER

COUNSEL

In the presence of the attorney for the government

the defendant appeared in person on this date June 11,

1981

WITH COUNSEL I Jack Denaro, Esq.

PLEA

NOT GUILTY

FINDING & JUDGMENT

There being a finding of GUILTY.

Defendant has been convicted as charged of the

offense(s) of possession with intent to distrib

App. 10

approximately 8,500 pounds of marijuana; in violation

of Title 21 United States Code, Section 955(a), and Title

18, United States Code, Section 2, as charged in Count

Two of the Indictment.

SENTENCE OR PROBATION ORDER

The court asked whether defendant had anything

to say why judgment should not be pronounced. Because

no sufficient cause to the contrary was shown, or appeared

to the court, the court adjudged the defendant guilty

as charged and convicted and ordered that: The defendant

hereby committed to the custody of the Attorney General

or his authorized representative for imprisonment for

a period of TWENTY-SEVEN (27) MONTHS, with a

Special Parole Term of TWENTY-FOUR (24) MONTHS,

or until otherwise discharged by due process of law.

COMMITMENT RECOMMENDATION

The court orders commitment to the custody of

the Attorney General and recommends,

It is ordered that the Clerk deliver a certified

copy of this judgment and commitment to the U.S.

Marshal or other qualified officer.

SIGNED BY USS. District Judge

/s/ Joe Eaton

JOE EATON, U.S.D.J.

Date June 11, 1981

App. 11

[FILED JUN 11 1981]

UNITED STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF FLORIDA

DOCKET NO. 81-105-CR-JE

UNITED STATES OF AMERICA

vs.

EDWARD ESSA ABDENOUR

Defendant

JUDGMENT AND

PROBATION/COMMITMENT ORDER

COUNSEL

In the presence of the attorney for the government

the defendant appeared in person on this date June 11,

1981

WITH COUNSEL I Jack Denaro, Esq.

PLEA

NOT GUILTY

FINDING & JUDGMENT

There being a finding of GUILTY.

Defendant has been convicted as charged of the

offense(s) of possession with intent to distrib

App. 12

approximately 8,500 pounds of marijuana; in violation

of Title 21 United States Code, Section 955(a), and Title

18, United States Code, Section 2, as charged in Count

Two of the Indictment.

SENTENCE OR PROBATION ORDER

The court asked whether defendant had anything

to say why judgment should not be pronounced. Because

no sufficient cause to the contrary was shown, or appeared

to the court, the court adjudged the defendant guilty

as charged and convicted and ordered that: The defendant

hereby committed to the custody of the Attorney General

or his authorized representative for imprisonment for

a period of TWENTY-FOUR (24) MONTHS, with a

Special Parole Term of TWENTY-FOUR (24) MONTHS,

or until otherwise discharged by due process of law.

COMMITMENT RECOMMENDATION

The court orders commitment to the custody of

the Attorney General and recommends,

It is ordered that the Clerk deliver a certified

copy of this judgment and commitment to the U.S.

Marshal or other qualified officer.

SIGNED BY USS. District Judge

/s/ Joe Eaton

JOE EATON, U.S.D.J.

Date June 11, 1981

App. 13

[FILED JUN 11 1981)

UNITED STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF FLORIDA

DOCKET NO. 81-105-CR-JE

UNITED STATES OF AMERICA

vs.

RONALD HENRICH

Defendant

JUDGMENT AND

PROBATION/COMMITMENT ORDER

COUNSEL

In the presence of the attorney for the government

the defendant appeared in person on this date June 11,

1981

WITH COUNSEL I Jack Denaro, Esq.

PLEA

NOT GUILTY

FINDING & JUDGMENT

There being a finding of GUILTY.

Defendant has been convicted as charged of the

offense(s) of possession with intent to distrib

App. 14

approximately 8,500 pounds of marijuana; in violation

of Title 21 United States Code, Section 955(a), and Title

18, United States Code, Section 2, as charged in Count

Two of the Indictment.

SENTENCE OR PROBATION ORDER

The court asked whether defendant had anything

to say why judgment should not be pronounced. Because

no sufficient cause to the contrary was shown, or appeared

to the court, the court adjudged the defendant guilty

as charged and convicted and ordered that: The defendant

hereby committed to the custody of the Attorney General

or his authorized representative for imprisonment for

a period of TWENTY-FOUR (24) MONTHS, with a

Special Parole Term of TWENTY-FOUR (24) MONTHS,

or until otherwise discharged by due process of law.

COMMITMENT RECOMMENDATION

The court orders commitment to the custody of

the Attorney General and recommends,

It is ordered that the Clerk deliver a certified

copy of this judgment and commitment to the U.S.

Marshal or other qualified officer.

SIGNED BY U.S. District Judge

/s/ Joe Eaton

JOE EATON, U.S.D.J.

Date June 11, 1981

App. 15