# Motion to Dismiss or Affirm — Reimer v. California

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Motion to Dismiss or Affirm
- **Published:** January 1, 1984
- **Citation:** 467 U.S. 1201

## Text

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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S.Ct. 1428

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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.)

oF VE ever pK
PS eR Pe ane

«8 »
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

-*
‘

~~. . oo
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1427%3A2. Public record. Not legal advice.