Motion to Dismiss or Affirm — Reimer v. California

COPY

IN THE SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM 1983

NOS. 83-1356, 83-6156

- Supreme Court, U,

PILED :

APR 26 1994

ALEXANDER L. STEVAg

CLERK

HENNING REIMER and ROBERT CARLTON ENRIGHT,

Appellants,

vs.

PEOPLE OF THE STATE OF CALIFORNIA,

Appellee.

Appeal from the Court of Appeal

for the State of California, Second

Appellate District.

MOTION TO DISMISS APPEAL

ROBERT H. PHILIBOSIAN

District Attorney of

Los Angeles County

DONALD J. KAPLAN

Deputy District Attorney

GEORGE M. PALMER

Deputy District Attorney

849 South Broadway, llth Fl.

Los Angeles, California

90014-3570

‘Telephone: (213) 974-5917

Attorney for Appellee

, SUBJECT INDEX

; | Pages

Motion to Dismiss Appeal 1-16

Opinion Below 1

Jurisdiction 1-2

Statement of Facts 2-5

Question Presented 4

Argument

Since the Validity of a

Federal Statute is not

Drawn into Question and

There has been no Decision

by a State Court against

; the Validity of a Federal

Statute this Court is

Without Jurisdiction to

Hear This Appeal. 4-15

Conclusion 15-16

TABLE OF AUTHORITIES CITED

Page

Cases

Almeida-Sanchez v. United

am (1973) 413 U.S.

2

Boyd v. United States

(1886) 116 U.S. 616

Carroll v. United iitates

(1925) 267 U.S. 132

Cox v. Texas

(1906) 202 U.S. 446

Fasnacht v. Frank

(1875) 23 Wall. 416

Go v. Los Angeles

i947) 3 331 U.S. 543

Key v. Doyle

(1977) 434 U.S. 59

Klein v. United States

{oth Cir. 1973) 472 F.2d

M his Nat. Gas Co. v.

ae (1941) 315 U.S.

Pilkinton v. Pilkinton

ea Cir. 1968) 389 F.2d

Street v. New York

’ (1969) 394 U.S. 576

ii.

12

13

5

7

, Cases

United States v. Bilir

(4th Cir. 1979) 592

F.2d 735

United States v. Brown

(7th Cir. 1974) 499

F.2d 829

United States v. Chavarria

(5th Cir. 1974) 493

F.2d 935

United States v. Glaziou

(2nd Cir. 1968) 402

F.2d 8

United States v. McDaniel

(5th Cir. 1972) 463

F.2d 129

United States v. Odland

(7th Cir. 1979) 502

F.2d 148

United States v. Pr le

-(5th Cir. 1978) 57

F.2d 1114

United States v. Ramsey

(19772) 431 U.S. 606

United States v. Scheer

(3rd Cir. 1979) 600

F.2d 5

United States v. Stornini

(lst Cir. 1971) 443

t F.2d 833

United States v. 37 aa greene

<4 (1971) 402 U.S. 363

Page

14

14

13

14

13

13

13

:

|

12 !

-10,12,13

13

Codes and Statutes

Title 19 U.S.C.

§ 482

§ 1582

Title 28 U.S.C.

§ 1257(1)

IN THE SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM 1983

NOS. 83-1356, 83-6156

HENNING REIMER and ROBERT CARLTON ENRIGHT,

Appellant,

VS.

PEOPLE OF THE STATE OF CALIFORNIA,

Appellee.

MOTION TO DISMISS APPEAL

OPINION BELOW

The opinion of the Court of

Appeal for the State of California,

Second Appellate District, is not

reported in a published opinion. How-

ever, it is designated as eo Ve

ob d

Reimer, 2d Crim. No. 43532, and is also

reproduced as Appendix A to appellant's

briefs on appeal.

JURISDICTION

Appellants claim that jurisdiction is

conferred upon this Court to hear this

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case based upon 28 U.S.C., section 1251

(1). As we shall show, this claim is

without merit.

STATEMENT OF FACTS

The evidence is undisputed.

The only witnesses were federal customs

officers whose testimony was accepted as

truthful by the trial court. Their

testimony revealed that defendants, who

appeared to be traveling together,

arrived at Los Angeles International

Airport on an international flight from

Lima, Peru. Upon disembarking from the

airoraft, they proceeded to the customs

area of the airport. Each was carrying

hand luggage. At the primary inspection

point their passports were checked and

their names were entered in the

"Treasury Enforcement Computer System"

("TECS") to determine whether there were

any outstanding arrest warrants or any

-34-

other reason for detaining thin, The

computer retrieved information indicating

that two persons, with names exactly

matching those of appellants, together

were suspected of possessing cocaine in

the past and had possibly been so charged,

but that neither had been convicted of

such an offense. Other than the com-

puter match, there was nothing suspicious

about appellants' behavior or dress.

Upon this basis, a search of appellants’

hand luggage was conducted which revealed

substantial quantities of cocaine in

their possession.

The trial court suppressed

this evidence upon motion of appellants

and dismissed the case. On appeal by

the People, the order of suppression was

reversed and the Supreme Court of

California denied a hearing.

ye

QUESTION PRESENTED

The question presented is

whether 28 U.S.C., section 1257(1) con-

fers jurisdiction upon this Court to

hear this case and pass upon the merits

of the appeal.

_ ARGUMENT

SINCE THE VALIDITY OF A FEDERAL

STATUTE IS NOT DRAWN INTO QUESTION

AND THERE HAS BEEN NO DECISION BY

A STATE COURT AGAINST THE VALIDITY

OF A FEDERAL STATUTE THIS COURT IS

WITHOUT JURISDICTION TO HEAR THIS

APPEAL.

A.

28 U.S.C., section 1257(1)

; provides:

. Final judgments or decrees E

rendered by the highest court

of a State in which a decision

could be had, may be reviewed by

« § =

the Supreme Court as follows:

(1) By appeal, where is

drawn in question the validity

of a treaty or statute of the

United States and the decision

is against its validity.

* *

It has long been the rule that

mandatory jurisdictional statutes such

as 28 U.S.C., section 1257(1), authoriz-

ing appeals as of right to the Supreme

Court, will be given a narrow construction

in the absence of clear Congressional

intent to the contrary. . (Key v. Doyle

(1977) 434 U.S. 59, 65 [54 L.Ed.2d 238,

98 S.Ct. 280], Rehn. den. 434 U.S. 1025

[54 L.Ed.24 773, 8 S.Ct. 753]; Memphis

Nat. Gas Co. v. Beeler (1941) 315 U.S.

649, 651 (86 L.Ed. 1090]; Pilkinton v.

Pilkinton (8th Cir. 1968) 389 F.2d 32,

33.)

.

oa |

» 6 «

Accordingly, there being no

treaty involved, it is clear from the

statute that this Court may review this

case only where "is drawn in question the

validity of a... statute of the United

States and the decision is against its

validity." (Emphasis addea. )2/

Moreover, not only must

appellants show that a federal statute

was necessarily passed upon and found

constitutionally invalid by the highest

court of the state rendering the decision

(Cox v. Texas (1906) 202 U.S. 446 [50 L.

Ed. 1099, 1102]; Fashnacht v. Frank

(1875) 23 Wall. 416 [23 L.Ed. 81, 82]),

_—

1. We concur with appellants'

contention that this decision by the

Court of Appeal is now final within the

meaning of 28 U.S.C., section 1257(1), |

because the California Supreme Court has hi

denied a hearing. eee ee v. ios ‘s

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but also it must be shown that the

federal question presented for review in

this Court is substantial. (Street v.

New York (1969) 394 U.S. 576, 582 [22 L.

Ed.2d 572, 89 S.Ct. 1354].)

B.

Appellants have insisted from

the inception of this case that 19 U.S.C.,

section 482 governed the searches in

question and that under its "reasonable

cause to suspect" test, the searches

were inva1ia.2/ The trial court adopted

2. 19 U.S.C., section 482 provides:

Any of the officers or persons

authorized to board or search vessels

may stop, search, and examine, as well .

without as within their respective dis-

tricts, 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 posses-

sion or charge, or by, in, or upon such

vehicle or beast, or otherwise, and to

search any trunk or envelope, wherever

(Footnote continued on next page.)

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this position and found the searches

defective. Upon the People's appeal,

the. Court of Appeal reversed,

reasoning as follows:

The justification for

inspection of respondent's

handluggage was not depen-

dent upon the information

obtained by the customs

inspectors from the Treasury

Enforcement Computer System.

(Footnote 2 continued from page 6.)

found, in which he may have a reasonable

cause to suspect there is merchandise

which was imported contrary to law; and

if any such officer or other person so

authorized shall find any merchandise on

or about any such vehicle, beast, or

person, or in any such trunk or envelope,

which he shall have reasonable cause to

believe is subject to duty, or to have

been unlawfully 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. Ps

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(Cf. United States v. Gallagher

(4th Cir. 1977) 557 F.2d 1041,

1043, cert. den. 1 er Vv.

United States (1977) 434 U.S.

870.) The reasonableness of

the inspection of the contents

of respondents’ handluggage

was established solely by the

undisputed evidence that

respondents had arrived in the

United States from a foreign

country at an established port

of entry, and were subjected

to a permissible, reasonable

search of the luggage. (United

States v, Sandler, supra, 644

F.2d at 1165-1168; cf. People

v. Layba (1981) 29 Cal.3d 591, -

Jpn EER a cE ee

597.)

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—)

At no time has any state court

passed upon the question of the validity

of any United States statute nor has any

court -- particularly the Court of

Appeal -- determined that a United

States statute is constitutionally or

otherwise invalid. Indeed, as appel-

lants' briefs in this Court make clear,

the issues presented by this appeal are

which of two statutes@/ govern the

3. Appellee contended in the

California Court of Appeal that 19 U.S.C.,

section 1582 controls actual or functional

border searches, whereas 19 U.S.C., sec-

tion 482 controls customs searches away

from a border but within a customs dis-

trict. (Se ates v.

(3d Cir. S870) 506 roa 7) seers

1582 provides: ‘

The Secretary of the Treasury may ‘#

prescribe regulations for the search of a

persons gy Sis, ig. ates he-is authorized 4

to employ f e ectors for the exami- oe

. nation and search of persons of their own so

‘. sex; and all persons coming into the

ae United States from foreign countries shall

r be liable to detention and search by

authorized officers or agents of the

Government under such tions. June

218 1930, c. 497, Title IV, § 582,

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searches herein and whether some quantum

of suspicion is constitutionally mandated

before a routine, nonintrusive border

search may be undertaken. Neither 19

U.S.C., section 482 nor 19 U.S.C.,

section 1582 were analyzed to determine

their constitutional validity. They are

assumed to be constitutionally valid and

the Court of Appeal did not treat them

otherwise. In fact, it is clear the

Court of Appeal did not even consider

such an issue.

C.

It is likewise clear that no

substantial federal question is involved

here. The constitutional validity of a

federal statute is not at issue. No

state court has even questioned the

validity of a federal statute. Implicit

4. This is understandabie since

none of the parties presented such issue

to the court.

wo 2 @

in the decision of the Court of Appeal is

the conclusion that the searches in ques-

tion were valid under both federal

statutes, supra.

This conclusion is in accord

with the long-standing principle of law

that all persons and their personal

effects, crossing our international

borders2/ and entering the United States

from a foreign country are subject to a

routine nonintrusive search. (United .

States v. Ramgey (1977) 431 U.S. 606,

619 [52 L.2d. 617, 97 S.Ct. 1974; Almeida-

Sanchez v. United States, supra; United

5. The undisputed facts of the

instant case demonstrate that Los Angeles

International Airport was a functional

international border because petitioners

Enr and Reimer had just arrived in

}.)

the ted States on an international .

fl from Peru. Vv. :

(1973 ede 272- : .

- ~Hd.2d 596, 93 S.Ct. 2535} Be

international rt); F

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States v. Thirty-Seven Photographs

(1971) 402 U.S. 363, 376 [28 L.Ed.2a

822, 91 S.Ct. 1400}; Carroll v. United

States (1925) 267 U.S. 132, 153-154 [69

L.Ed. 543, 45 S.Ct. 280} Boyd v. United

States (1886) 116 U.S. 615, 623 [29 L.Ed.

746, 6 S.Ct. 524.) Thus, a search based

on mere subjective suspicion or even on

a random basis is lawful. (United States

v. Scheer, supra; United States v.

5 Pringle (5th Cir. 1978) 576 Fed.2d 1114,

1117; United States v. Odland (7th Cir.

1974) 502 F,2d 148, 150-151, cert. denied

419 U.S. 1088 [42 L.Ed.2d 680, 95 S.Ct.

679]; Klein v. United States (9th Cir.

1973) 472 F.2d 847, 849; United States

v. McDaniel (5th Cir. 1972) 463 F.2d

129, 132; United States v. Stornini (1st

Cir. 1971) 443 F.2d 833, 835.)2/ Indeed,

i. e: pie (3th Cir. ee ie

° a contrary view.

a) ee

the mere fact of crossing the border

raises "reasonable cause to suspect"

such persons may be in possession of

contraband or dutiable goods. (United

States v. Bilir (4th Cir. 1979) 592 F.2d

735, 741; United States v. Brown (7th

Cir. 1974) 499 F.2d 829, 833; United

States v. Glaziou (2nd Cir. 1968) 402

F.2d 8, 12.)

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Accordingly, it must be con-

cluded that this Court lacks jurisdiction

under 28 U.SC., section 1257(1) to pass

upon the merits of this appeal.

D.

The foregoing reasoning also

leads to the conclusion that this appeal

should not be treated as a petition for

writ of certiorari. No substantial

: federal question is presented and,

y. further, the Court of Appeal and the

| Supreme Court for the State of California

have passed upon the merits of appellants’

a ieee a US

claims and found them wanting. Discre- ».

tionary review by this Court would not |

be appropriate in these circumstances.

r CONCLUSION

: For the foregoing reasons, it

must be concluded that this Court lacks

jurisdiction to pass upon the merits of

ee eS F

this appeal. Accordingly, the appeal by

appellants should be dismissed.

Respectfully submitted,

ROBERT H. PHILIBOSIAN

District Attorney of

Los Angeles County

By

DONALD J. KAPLAN

Deputy District Attorney

Appellate Division

GEORGE M. PALMER

Deputy District Attorney

Attorney for Appellee ;

2 DPS hens a |

8. CLARK MOORE

DECLARATION OF SERVICE BY MAIL

The undersigned declares under

penalty of perjury that the following

is true and correct:

I am over eighteen years of age,

not a party to the within cause and

employed in the Office of the District

Attorney of Los Angeles, California

90014-3296. On the date of execution

hereof I served the attached document

by depositing a true copy thereof,

enclosed in a sealed envelope with

postage thereon fully prepaid in the

United States mail in the County of Los |

Angeles, California, addressed as follows:

HON. EDWARD A. HINZ, HR. ;

Judge of the Superior Court ’ |

og hepa SW District "K" "

Maple Avenue |

Torrance, CA 90503 ‘

JOHN P. KENOSIAN, Esq.

Attorney at Law Pm

7080 Hollywood Blvd., Suite 307 ‘%

Los Angeles, CA 90028

KIM H. PEARMAN, Esq.

Attorney at Law

7080 Hollywood Blvd., Suite 307

Los Angeles, CA 90028

Sr. Asst. Atty. Gen,

3580 Wilshire Blvd,

Los Angeles, CA 90010

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