Jurisdictional Statement — Catanzaro v. Hart Electronics Corp.

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—_ - 4

JAN 2 5.1984

Orricc ur THE CLERK

2 SUPREME COURT OF THE UNITED STATES ee

35 October Term, 1984

4 a

5 NO. 83 - 6156.

6 ROBERT CARLTON ENRIGHT, Appéllant

7 -Vv-

8 THE STATE OF CALIFORNIA, Appellee

9 Siiaieectanesaiea aie

10 ON APPEAL FROM THE

COURT CF APPEAL FOR THE STATE OF CALIOFNRIA,

11 SECOND APPELLATE DISTRICT

12 xs : 7a

17 JOHN P. KEMNOSIAN

ATTORNEY AT LAW

18 A PROFESSIONAL CORPORATION

7080 Hollywood Boulevard

19 Suite 307

Hollywood, California 90028

ee (213) 466-4525

Counsel for Appellant,

22 ROBERT CARLTON ENRIGHT

|| ' \ ,

INDEX

2 » Page

3 Question Presented ..ccccccccccccssccessccevsessccsee rae |

4 ODANION cccccsccccvccvccsccnceccesecscccvecececcceoes 1

5 PEO ROCEION 6 cide 66 6e bees RE CORES 6S OER OL EOS OSS eS 1

6 Sonesetitautional ProviSionsS OGNG Bale cde scsseseussesass 2

7 Raising the Federal Question .... cere eecceeecccccces 2

8 Statesent of Che CASO <0 6:0 300 bee Vi es tae eedeseeeeeus 3

9 The Question is Substantial ..cceccccccccccsvccscsesse 4

10 CEP SUITS OGM. ig od clk We O66 AE OO oad ae a ee ee ee eae 14

11 ADPONGix “AM wc ccccccrovacccssccccsescvesscesseceeces la

le ADDONGIx “B® .nccccccccccccccvescccesecccscsesecseses 2a

1s MppenGdix "COC" .ncrccccccccccccccccesescceceesseseseees 3a

14 CITATIONS

15 2959 STATES SUPREME COURT CASES:

16 lmeida-Sanchez v. United States,

ee ON A SS es ree er ee ree ee ee 11

Ps oyd v. United States,

1 | FES a ee SE 8094504 64 05Aaa desk o Sun

19 arroll v. United States,

ETO Dells SOO COMESS ccbivicvetasecaveressenere6en 4,13

21 laware v. Prouse,

| SOG Gshc BEE. TARtR) Sas ends -cesesesrdianesanncee ese. ae

22 lorida v. Royer,

a | U.S. GEOG OT. co's hha eV erie ewe eee 14

24 nited States v. biignoni-Ponce,

| Se Wotan Dae: COPTER nk aes 00.40 08045020 so0eeorsboes . . Saye

26 nited States v. Martinez-Fuerte,

Sa was. DE ChE weenaccdcvosdediveces eeeetaws 11

27 nited States v. Ortiz

See ee ee TEED dea dcd a 0040 veedeuwan a awhe’s roe *

28 United States v. Place,

29 Wells CLOGSE ys kié wae genes s Ree eee oe ee

30 United States v. Ramse

San en, Ce TEE hr ede sc kes 6 ecaaneen 89 cooune 6, 30,n0eee

31 United States v. Villamonte-Marquez,

32 UsBe (1983) *“eenenerieeeeeneene eneeneeee es © * © 10,11

= FEDERAL CASES:

Alexander v. United States,

Klein v. United States,

Stassi v. United States,

United States v. Chavarria,

United States v. Diamond,

o ort aa & wo DD F

United States v. Diemler,

lunitea States v. Glaziou,

362 FPF. 24 397 (Sth Cir. 1966) ncn cccccccvccccccce

rn rr ee, BOTS) 2. cence ccccesccscceses

410 FP 2d 946 (Sth Cir. 1969) ...cccceccccccvcvvccce

Sees Oe Sam Coe CAF. 1974) nc cccccccccscccccces

S72 FP. 24 FIL (StH Cir. 1973) .nccccccccccccccccece

Cer OCG CAE. LOTE) wc cccccccccccccecece

12) 402 F. 24 & (20d Cir. 1968) ....ccccccccccccrcccccees

13 jiUnited States v. Scheer,

re. SUPER fcc cc cc cence ce eccnceoes

_, jnites States v. Steinkoenig,

itt v. United States,

, ee, CME GEE. BOISD cc cccccccccsccccccccce

eo me CME CAP. 1961) wn cccscccccccscccceccs

ONSTITUTION:

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ODES AND STATUTES:

DI MeMeta OB GOS co ccccccccrccsccccccccccccccccces

Title caw ccceccnssocececes

eee BS WsoC. B ISER ..ccccccccccce ee cccccccccccccccs

EE a

26/19 Code of Federal Regulations $ 162.6 ................

271119 Code of Federal Regulations 8 162.7 .............-..

28 LEGISLATIVE HISTORY:

29 lAct to regulate the Collection of Duties,

Dee ae es © BE CEIED) wncccccccwcccceccs cece

ct of August 4, 1790, Ch. 35, 8 73

31 Te ceccoéos

S2/Act to Prevent Smuggling 8 2, 8 3

BO MME BOW GEOCO) cess cccccccccccccccccccccccccses

5,6,10

7,8,9

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eo wf OW Db DY WY HY DD DD ND DD KY KY KY HY HY YY BP PP PP Be

vor OC HO ORF He oD eHY OH OWA TD F&F WH WD KY O

STAT 627, Ch.

\ 8 68 (1799)

22, STAT III,

eport of the Commission, 42nd

Congress, 2nd Sess., Misc.

no. 3, Vol. 1, Dec. 4, 1871

8 67,

Doc.

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| JAN 2 5.1984

OFFICE uF THE CLERK

SUPREME COURT OF THE UNITED STATES

October Term, 1984

NO.

ROBERT CARLTON ENRIGHT, Appellant

-V-

THE STATE OF CALIFONRIA, Appellee

ON APPEAL FROM THE COURT OF APPEAL, SECOND APPELLATE

DISTRICT OF THE STATE OF CALIFORNIA

JURISDICTIONAL STATEMENT

ROBERT CARLTON ENRIGHT, the Appellant, appeals from the

judgment of the Court of Appeal of the State of California, Second

Appellate District dated September 28, 1983 holding that the trial

court erred in granting the Appellant's motion to suppress evidence

and further ruling that "it is settled that reasonable grounds to

search a person or inspect his personal effects at an international]

port of entry is established solely by reason of entry into the

United States from a foreign country."

QUESTION PRESENTED

Probable cause or at least a reasonable suspicion under 19

U.S.C. 8S 482 is required by customs officials to search a person

or his personal belongings at an international border or its func-

tional equivalent.

OPINION

The opinion of the Court of Appeal of the State of California,

Second Appellate District division 1 which was “not to be published"

appears in the appendix hereto as appendix "A".

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JURISDICTION

» The judgment of the Court of Appeal of the State of California

Second Appellate District was entered on September 28, 1983 re-

versing the Superior Court for the County of Los Angeles which had

suppressed evidence and dismissed the case against Appellant on

the basis that said search and seizure were illegal.

Thereafter, the Supreme Court of the State of California on

November 29, 1983 denied a hearing in the instant case. The

jurisdiction of this court is invoked under 28 U.S.C. $8 1275 (1).

CONSTITUTIONAL PROVISIONS AND RULES

Fourth Amendment, United States Constitution:

"the right of the people to be secure in

their persons, houses, papers, and effects,

against unreasonable searches and seizures,

shall not be voilated ***.”

19 U.S.C. Code, $8 482:

" Any of the officers or persons authorized

to board or search and examine, as well with-

out as within their respective districts, any

vehicle, beast, or person, on which or whom

he or they shall suspect there is merchandise

which is subject to duty, or shall have been

introduced into the United States in any man-

ner contrary to law ***,"

RAISING TiS FEDERAL QUESTION

From the inception of this case, Appellant has raised the

application of the Fourth Amendment of the United States Constitu-

tion to Appellant's case and/or the application of 19 U.S.C. 8

482 requiring at the very minimum, a "reasonable suspicion te sus-

pect".

These constitutional issues were first raised in the Muni-

cipal Court of the Los Angeles Judicial District, County of Los

Angeles on March 16, 1982. Thereafter, the constitutional ques-

tion was again raised in the Superior Court for the County of

Los Angeles resulting in the suppression of all evidence against

Appellant and the dismissal of criminal charges against Appellant

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ko October 1, 1982. Appellant continued to raise the constitu-

Yional challenges and/or the applicability of 19 U.S.C. 8 482 in

the Court of Appeal, Second Appellant District which reversed the

Los Angeles Supericr Court on September 28, 1983 and thereafter in

the Supreme Court of the State of California which court refused

to grant Appellant a hearing on November 28, 1983.

STATEMENT OF THE CASE

On December 31, 1981 at approximately 8:30 a.m. Appellant,

ROBERT CARLTON ENRIGHT and HENNING REIMER came through customs at

the U.S. Customs Office, Los Angeles International Airport, on

flight number 832 from Lima, Peru on Varrig Airlines.

There was nothing suspicious about either man; they did not

act nervous nor give any reason to believe that they were doi.ng

anything illegal.

In the primary inspection line, their hand carried baggage

was checked with negative results.

Because a computer check on the TECS Machine, [which is a

United States Treasury Computer], showed both men's names on the

computer, whey were separated from the other 50 or 60 passengers

in primary and sent to a secondary inspection station approximately

100 yaris away, Out a door and down some stairs.

An "M" was marked at the top of their declarations meaning

that there was information on the TECS on these particular persons.

At secondary, the two men's bags were further searched and

in a photo album found in Appellant's bag, was a white powdery

substance inside the front and back covers which tested positive

for cocaine.

Of the approximately 6 people referred from primary to

secondary on the date in question, only Appellant and REIMER came

to secondary because Of something that was on the computer.

The office of the District Attorney for the County of Los

Angeles, State of California refused to reveal the source of the

i ‘

1K TECS computer information and the Judge of the Superior Court for

2 Me County of Los Angeles suppressed the evidence and dismissed

3|| the case against Appellant and REIMER. The motion to suppress the

4\l| evidence was granted because the computer information was insuf-

51} ficient to warrant the search of the luggage. It was stipulated

6|| there there was no search warrant obtained for the search.

7 QUESTION IS SUBSTANTIAL

8 The right of customs officers to search a person and his be-

9}} longings for contraband at an international border or its function

10]} al equivalent without probable cause or at the very least a "rea- |

11|| sonable suspicion to suspect” has never been treated before by thi

12/| court other than in dicta.

13 Carroll v. United States

14 276 U.S. 132 (1924)

15 This high court in United States v. Ramsey, 431 U.S. 606

16|| (1977) upheld 19 U.S.C. $8 482 and implementing postal regulations

17|| authorizing customs officials to inspect incoming interrational

18|| mail when they have a "reasonable cause to suspect" that the mail

19} contains illegally imported merchandise.

20 It is urged that Ramsey, supports Appellant's position that

21) 19 U.S.C. 8 482 also applies with equal force in this case.

22 «in the case at hand there are two federal statutes which

23|| had their origin in 1866. The first statute, 19 U.S.C. 8 482

24| requires officers or persons authorized to board or search and ex-

25|| amine vehicles beasts, or persons to have “reasonble cause to |

26|| suspect there is merchandise imported contrary to law" {Emphasis |

27|| Supplied.)

28 The second statute, 19 U.S.C. 8 1582, allows the Secretary

29|| the Treasury to prescribe regulations for the search of persons

30 || and baggage and authorizes employment of female inspectors for the

51|| examination and search of persons of their own sex; and all person:

32 || coming into the United States from foreign cour.tries are liable to

VW Leg ee

V ivancinn and search by authorized officers or agents of the

Dbveransnt under such regulations. (Emphasis Supplied.)

Under 19 U.S.C. 8 1582, two regulations were enacted which

apply here:

19 C.F.R. 8 162.6 Search of persons, baggage and

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merchandise.

All persons, baggage, and merchandise

arriving in the Customs territory of the

United States from places outside thereof

are liable to inspection and search by a

Customs officer. District directors and

special agents in charge are authorized

to cause inspections, examinations, and

search to be made under section 467, Tariff

Act of 1930, as amended (19 U.S.C. S 1467),

of persons, baggage, or merchandise even

though such persons, baggage, or merchandise

were inspected, examined, searched or taken

on board the vessel at another part or place

in the United States or in the Virgin Islands,

if such action is deemed necessary or appro-

priate,

19 C.F.R. 8 162.7 Search of vehicles, persons, or beasts.

A customs officer may stop, search and

examine any vehicle, person, or beast, or

searchand trunk or envelope wherever found, in

accordance with section 3061 of the Revised

Statute (19 U.S.C. 8 482). (Emphasis Supplied.)

It is more interesting to note that Section 162.7 specifical}

cites 19 U.S.C. 482 which requires “reasonable cause to suspect.”

The legislative history of Section 19 U.S.C. 8 482 and 19

U.S.C. 8 1582 clearly teaches that these two sections must be read

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- and considered together.

» Border searches have long been recognized as an exception

to the Fourth Amendment requirement that searches be based on pro-

bable cause. Boyd v. United States, 116 U.S. 616 (1886). The ex-

ception is based on two historical events: the passage of an Act

to regulate the Collection of Duties, 1 STAT 29, by the first con-

gress and the proposal of the Fourth Amendment, 1 STAT 97, two

months later by the same congress. United States v. Ramsey 431

U.S. 606, (1977). In Boyd, United States 116 U.S. 616 (1886) the

court states the following:

"The first statute passed by congress to

regulate the collection of duties, the act

of July 31, 1789, (1 St. 43,)... As this

act was passed by the same congress which

proposed for adoption the original amend-

ments to the constitution, it is clear that

the members of that body did not regard

searches and seizures of this kind as "un-

reasonable” and they are not embraced within

the prohibition of the amendment”.

The original customs act contained forty sections. Section

23 of this Act provided in pertinent part:

"(I)t shall be lawful for this collector, or

other officer of the customs, after entry made

of any goods, wares, or merchandise, or suspi-

cion of fraud, to open and examine, in the pre-

sence of two or more reputable merchants, any

package or packages thereof...”

Section 24 provided in pertinent part:

"(E)very collector, naval officer and sur-

veyor, or other person specially appointed

by either of them for that purpose, shall have

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full power and authority to enter any ship or

» vessel, in which they shall have reason to

suspect any goods, wares, or merchandise sub-

ject to duty shall be concealed; and therein

to search for, seize, and secure any such goods,

wares or merchandise; and if they shall have

cause to suspect a concealment thereof, in any

particular dwelling-house, store, building

or other place, they or either of them shall,

upon application of oath or affirmation to any

justice of the peace be entitled to a warrant

to enter such house, store, or other place (in

the date time only) and thereto search for such

goods, and if any shall be found to seize and

secure same for trial..."a STAT 29, 43.

(3mphasis Supplied.).

The Act was amended the following year by the second session

of the same congress, Act of August 4, 1790, chap. 35, sec. 73,

STAT. 145 in response to an address to congress by then Secretary

of the Treasury, Alexander Hamilton. See, “Operations of the Act

Laying Duties on Imports", State Papers, Finance, Vol. I, 45-50,

April 22, 1790.

The Act was amended by fifth congress, 1 STAT 627, Ch. 22,

statute III, March 2, 1799. The language of the original act was

retained as reflected in sections 67 and 68 of the Act.

In 1866, the Act was substantial’y amended. It was presented

as Senate Bill 222, An Act to Prevent Smuggling. The bill was pre-

_pared at the Treasury Department. New provisions were added.

"These new provisions apply cheifly to the

northern, northeastern, and northwestern

frontiers, and are suggested by the relations

which have sprung up in a few years past between

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the British Provinces on this continent and that

» region of our country." Colloquy of Mr. MORRILL,

Cong. Globe, 39th Cong., lst Sess., 2563, 1866.

Section 2 of the Act to Prevent Smuggling read in pertinent

part:

"...(I)t shall be lawful for any officer of the

customs... to go on board any vessel... and to

inspect, search, and examine the same and any

person, trunk, or envelope on board... and if

it shall appear that any breach or violation

of the laws of the United States has been

committed... such vessel, or goods on board...

is or are liable to forfeiture..." 14 STAT

178 (Emphasis Supplied.).

It was moved by Mr. HUMPHREY to amend section 2 to insert the

words "when he or they shall inspect". Cong. Globe, supra, 3420.

That motion was defeated. Section 2 pertained only to vessels and

to goods, merchandise, and wares on board.

Section 3 of the Act provided in pertinent part:

"That any of the officers or persons authorized

by the second section of this act to board or

search ineste may stop, search, and examine, any

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

or they shail suspect there are goods, wares, or

merchandise which are subject to duty or shall

have been introduced into the United States in any

manner contrary to law,... and to search any trunk

or envelope, wherever found, in which he may have

a reasonable cause to suspect there are goods

which were imported contrary to law;...

and the Secretary of the Treasury may from time

to time prescribe regulations for the search of

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grant

try on foot, horseback, or carriage who

persons and baggage, and for the employment of

female inspectors for the examination and search

of persons of their own sex; and all persons coming

into the United States from foreign countries shall

be liable to detention and search by authorized

officers or agents of the government, under such

regulations as the Secretary of the Treasury shall

from time to time prescribe..." 14 STAT 178.

Section 3 was discussed in debate on the floor of the senate

Mr. HUMPHREY:

"...under the third section these men are author-

ized to arrest any person anda examine his trunks

and vehicle for the purpose of seeing whether there

is any property which has been smuggled. But

the officer can do this only where he has reason

to believe the person or carriage has goods liable

to duty. I think that is at least an amount of

caution which ought to be placed in this bill when

we are to put such immense powers into the hands

of such men as will doubtlessly have the priviledge

of exercising them." Cong. Globe, 39th Cong., lst

Secc., 2563, (1886). e

Section 3 of the act retained the "reason to suspect” lan-

This section was in response to persons entering the coun-

band on themselves or on their horse or in a vehicle.

It was clearly the intent of the 39th Cong., congress not to

unlimited authority to customs officers. The “reasonable

suspicion" language which originated in 1789 remained even though

smuggling had become a serious problem. Cong. Globe 39th Cong.,

lst Sess. 2564-71, (1886).

It is obvious from a careful reading of section 3 that both

may have concealed contra-

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719 U.S.C. 482 and 19 U.S.C. 1582 originated from this section.

Yection 3 was divided into subsections in 1871 by a commission

appointed to revise the statutes of the United States. See report

of the Commission, 42nd Congress, 2nd Sess., Misc., Doc. no. 3,

Vol. 1, December 4, 1871. The revised and renumbered statutes

were adopted by the 43rd Congress in 1873. 18 STAT, Part, 588.

Both 19 U.S.C. 482 and 19 U.S.C. 1582 originates in the same

section, (3) of the same act. It is clear that thai legislators

contemplated that section 3 would be read as a whole.

Both 19 U.S.C. 482 and 19 U.S.C. 1582 apply in the instant

case. They are not in conflict. The only instance where congress

has expressly extended authority of customs officers without rea-

sonable suspicion is when boarding ships on the open sea. United

States v. Willamonte-Margquez U.S. (1383). Authority to

search persons crossing United States borders has always been

based on reasonable suspicion.

The act of 1789 expressly provides searches to be conducted

under circumstances "in which they shall have reason to suspect." ,

First congress, Sess. 1, Chap. 5, section 23, 1789, 1 STAT 29, 43.

Nowhere else in the 1789 act is there mention of a search except

(1), packages could be opened in the presence of two reputable mer-

chants, 1 STAT 29, 43 $ 23 and (2), a customs officer could obtain

an warrant to search a house. 1 STAT 29, 43 $ 24. Suspicion was

required in both of these latter situations.

It is significant that in almost two hundred years since the

Act to Regulate the Collection of Duties, I STAT 29, was deemed to

create the border search exception to the Fourth Amendment, the ex-

press language requiring a reasonable cause to suspect has been re-~

tained.

The Trial Court in this case applied the provisions of 19

U.S.C. 8 482 to the facts and suppressed the evidence finding that

there was no "reasonble cause to suspect”.

oonran#eet abs re

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The Court of Appeal for the Second Appellate District in

Yeversing the Trial Court surprisingly relied on United States v.

Ramsey, 431 U.S. 606 (1977). (See Appendix "A").

Ramsey held that a search of the incoming international mail

under 19 U.S.C. 8 482 required 2 “reasonable cause to suspect”.

The California Court of Appeal in its decision completely

ignored the clear provisions and expressed wording of the statute

and ignored its validity. 28 U.S.C. $ 1257 (1).

The following United States Supreme Court cases hold with

respect to border searches that any stop or search requires pro-

bable cause, reasonable suspicion, or other discretion-limiting

features.

Almeida-Sanchez v. United States

413 U.S. 266 (1973)

United States v. Brignoni-Ponce

422 U.S. 873 (1975)

United States v. Ortiz

422 U.S. 891 (1975)

United States v. Martinez-Fuerte

428 U.S. 543 (197€)

Delaware v. Prouse

440 U.S. 648 (1979)

The most recent United States Supreme Court case, United

States v. Villamonte-Marguez U.S. (1983), upheld

19 U.S.C. $8 1581(a) which allowed Customs Officials, without any

suspicions of wrongdoing, to "board for inspection of documents”

a vessel that is located in waters providing ready access to the

open sea. (Emphasis Supplied.).

The Court's emphasis in Villamonte, was on factual differ-

ences between vessels located in waters offering ready access to

the open sea and automobiles on principal thoroughfares in the

border area. The Court also considered the historical origin of

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Sect ion 158l(a).

Other than Villamonte, which deals with a different statute,

no case by the United States Supreme Court has ruled that 19 U.S.C.

8 482 is not the applicable standard for searching persons and

their belongings at the border based on "reasonable cause to sus-

pect”. As a matter of fact, this court in United States v. Ramsey,

supra, reflects that Title 19 U.S.C. $8 482 is “alive and well”.

The Circuit Courts of Appeal are in conflict over the appli-

cation of 19 U.S.C. $ 482 and 19 U.S.C. 8 1582, as noted by the

following representative cases:

United States v. Chavarria (5th Cir. 1974) 493 F.2d. 935,

937 applied 19 U.S.C. Section 1582 as stated:

"The Courts have long recognized the

government's right to search and detain

travelers at our international boundries

on the basis of reasonble suspicion..."

(Citations omitted).

United States v. Steinkoenig (5th Cir. 1973) 487 F2d. 255

required reasonable suspicion under 19 U.S.C. Section 482 in the

nature of an informer's tip and surveillance.

United States v. Diemler (5th Cir 1974) 498 F2d 1070, 1072

reversed the district court because the government did not meet.

its burden and show the existence of "reasonable suspicion" of a

customs or immigration violation.

The Fifth Circuit Court of Appeals as seen supra requires

"reasonable suspicion" under both statutes. This interpretation

and construction appear to be correct on the basis of the sections‘

legislative history. See, also, Stassi v. United States (5th Cir.

1969) 410 F2d. 946.

In Alexander v. United States (9th Cir. 1966) 362 F.2d. 379,

382 the Court in considering both statutes states that “unsupported|

or mere suspicion alone is sufficient to justify a search for pur-

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Keene of customs law enforcement." In Alexander, the suspicion wag

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Prom a tip and surveillance.

In United States v. Diamond (9th Cir. 1973) 471 F.2d. 771,

773 the Court applied 19 U.S.C. $8 482 and reviewed the evidence roy

a “founded suspicion that a violation of a customs law or laws re-

lating to narcotic drugs was occurring.”

In Klein v. United States (9th Cir. 1973) 472 F.2d. 847, 849

the Court states that a border search of a vehicle was subject to

a general test of reasonableness but could be made with or without

cause or on unsupported or mere suspicion alone. The court further

held that mere entry alone into the United States from a foreign

country was sufficient reason for a border search.

Witt v. United States (9th Cir. 1961) 287 F.2d. 389, 391,

cert. denied 366 U.S. 950, 81 S. Ct. 1904, 6 L.Ed.2d. 1242, holds

"mere suspicion has been held enough cause for a search at the bor-

der". It Witt there was a description of the car and information

to the border guards is one possibly bearing heroin.

In United States v. Sheer (3d Cir, 1979) 600 F.2d. 6, 7, the

Court applied 19 U.S.C. Section 1582 and only oneimplementing re-

gulation (C.F.R. S 162.6) and held the border search valid "not-

withstanding the absence of probable cause or even a quantum of

individualized suspicion.” 19 U.S.C. 8 482 was held not to apply.

United States v. Glaziou (2n Cir. 1968) 402 F.2d. 8, Cert.

den. 393, U.S. 1121, 22 L.Ed.2d 126, 89 S.Ct. 999 required

“reasonable suspicion” to justify the search. In Glaziou there was

a nervousness and a “bulge around Glaziou's waist."

In summary, some circuits have applied 19 U.S.C. 8 1582

while others have applied 19 U.S.C. S$ 482. Still other circuits

have cited to the dicta in Carroll v. United States, 276 U.S. 132

(1924) as controlling. The confusion is further magnified by the

express holding in United States v. Ramsey, 431 U.S. 606 (1977).

It is urged that this Court should make a decision in this

o onrt ounrt a wb HF

bn DY DD DDD D YP YP YP BY YY PY PY PP Pe BP

2 on F&F WH HY CO HO DO RIA DW FP WY dD KF OC

area which will once and for all settle the question. The issue

Yresented by this Appeal appears to be the only border search

issue which has not been decided by the United States Supreme

Court.

It is also urged that the court consider additionally the

fact that in this case the Appellant was removed fromthe other

passengers -and taken to a Secondary station approximately 100 yardgq

away, Out a door and down some stairs. At the time that Appellant

was removed from the other 50 or 60 passengers, there should at

that time have been probable cause to conduct any search.

United States v. Place, v7.8. (1983)

Florida v. Royer, U.S. (1983)

",..in short, we hold that the detention of

Respondent's luggage in this case went beyond

the narrow authority possessed by police to

detain briefly luggage reasonable suspected to

contain narcotics." (See Place supra).

Royer, supra, held that the police had exceeded the limits

of an investigative stop where they asked the defendant to accom-

pany them to a small police room and retained his ticket and

drivers’ license and indicated in no way that he was free to de-

pert. 7

It is submitted that once there is a separation of the person

under investigation from other members of the general public

that such a further detention or search must be based upon

consent or probable cause. See, United States +. Brignoni-Ponce,

422, U.S. 873 (1975).

CONCLUSION

The legislative history confirms the premise that the

congress that enacted the Fourth Amendment never intended to

allow customs officials freedom to search indiscriminately merely

because a border had been crossed. To conclude otherwise is to

it hk

bd yew EY

“treat individuals today by a different standard without the same

Protections granted by the First Congress. The intent of the

legislature is clear from an examination of the history of the

two federal statutes in question. To give force to one statute

while ignoring the other is to select terms from an act of oongudill

that conveniently justify acts of government officials and to dis-

miss the expressed protections granted by the same act.

Other than in dicta, the United States Supreme Court deci-

sions have supported the fact that absent a "reason to suspect",

a search will not be permitted. The conflict within the Circuit

Court of Appeal and the uneven application of federal law cannot

be totally rerationalized.

Due to the fact that there is no United States Supreme Court

case in point and the further fact that the Circuit Courts of

Appeal are divided and also because 19 U.S.C. 8 482 has been

applied as recently as Ramsey, this court should note probable

jurisdiction of this Appeal.

Respectfully Submitted,

JOHN P. KENOSIAN

A PROFESSIONAL CORPORATION

7080 Hollywood Boulevard,

Suite 307

Hollywood, California 90028

/ Counsel for Appellant *

DATED: January 18, 1984 :

4 >

: O ©)

NOT TO BE PUBLISHED

» IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, } 2 CRIM. NO. 43532

Plaintiff and ) (Super.Ct.No. A-900448)

Appellant, )

‘ COURT OF APPEAL-SECOND pIST,

ROBERT CARLTON ENRIGHT and ) F l LL E D

Defendants and ) SLAY ROBBINS, JR. Clare’

Respondents. )

) Deputy Clerk

APPEALS from an order of the Superior Court of Los

Angeles County. Edward A. Hinz, Jr., Judge. Reversed.

Robert H. Philibosian, District Attorney (Los Angeles

County), Donald J. Kaplan and George M. Palmer, Deputy

District Attorneys, for Plaintiff and Appellant.

John P. Kenosian under appointment by the Court of

Appeal, for Defendant and Respondent Robert Carlton Enright.

Kim H. Pearman, for Defendant and Respondent Henning

Reimer.

Appen@ix "A"

X The People appeal the order dismissing an information

which charged respondents with the illegal importation of

cocaine entered after the court granted respondents' motion to

suppress evidence. (Health & Saf. Code, § 11352; Pen. Code,

§ 1538.5.) Appellant contends: "The trial court erred in

suppressing the evidence. Customs officers at an

international border (or its functional equivalent) may search

a person and the person's effects without any cause

whatsoever, solely on the basis that the person is entering

the United States from a foreign country. Moreover, the

evidence shows there was ‘reasonable cause’ to search

defendants and their personal effects."

The motion to suppress was submitted upon the

preliminary examination transcript. The record establishes

that on December 31, 1981, respondents Robert Erright and

Henning Reimer arrived at Los Angeles International Airport by

means of an international flight from Lima, Peru. As they

proceeded through Customs, the Treasury Enforcement Computer

System (TECS) revealed that respondents were each suspected to

be in possession of cocaine. An inspection of the contents of

respondent Reimer's handluggage uncovered 807 grams of cocaine

contained within the covers of an "extremely heavy" photograph

elbum that smelled of fresh glue, and 1.34 grams of the

substance within Enright's handluggage. The trial court

> € }

granted the motion to suppress the evidence because the

computer information was insufficient to warrant the search of

the luggage. |

Appellant's contention that the trial court erred in

granting the motion to suppress is well taken. It is settled

that reasonable grounds to search a person or inspect his

personal effects at an international vort of entry is

established solely by reason of the entry into the United

States from a foreign country. (United States v. Ramsey

(1977) 431 U.S. 606, 616-617; United States v. Sandler (5th

Cir. 1981) 644 F.2d 1163; People v. Duncan (1974) 40

Cal.App.3d 940, 945; see, 19 U.S.C. §&§ 482, 1582.)

The justification for inspection of respondents'

handluggage was not dependent upon the information obtained by

the customs inspectors from the Treasury Enforcement Computer

System. (Cf. United States v. Gallagher (4th Cir. 1977) 557

F.2d 1041, 1043, cert. den. Gallagher v. 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

- 7

O | oO

1165-8168; cf. People v. Leyba (1981) 29 Cal.3d 591, 597.)

The order granting the motion to suppress evidence is

reversed.

NOT TO BE PUBLISHED.

HANSON (Thaxton), J.

We concur:

SPENCER, P.J.

LILLIE, J.

As the content of the computer entry reiating to

respondents’ suspected narcotic activity was extraneous to the

justification for a search of respondents' ts Sa the

decision in People v. Ramirez (Crim. 24489, Sept. 1983) A

Cal. 3d (Slip opn., pp. 19-21) referred to by a

respondents’ “counsel during oral argument, is not in point.

20 |

21 |

22 |

23 |

Rosert CARLTON ENRIGHT, Appellant

STATE OF CALIFORNIA, Appellee

e ©

In the Court of Appeal of the

State of California, ;

Second Appellate Listrict

-v- 2 Grim. Bo. 43532

NOTICE OF APPEAL TO THE SUPREME COURT

OF THE UNITED STATES

Notice is hereby given that ROBERT CARLTON ENRIGHT, The

Appellant above-named, hereby appeals to the Supreme Court of the

United States from the final order of the Court of Appeal of the

State of California, Second Appellate District dated November 23,

1983.

This appeal is taken pursuant to 28 U.S.C. $8 1257 (1).

JOHN P. KENOSIAN

JOHN P. KENOSIAN, Attorney for

Appellant

Appendix "B"

Cate

Oo or no Ff &F D FH

bo) YD DY WY WD WD WD WD FP HY HP HP BP BP BY ee

(PC OF OF SERVICE BY MAIL~--1Q" *a, 2015.5 C.C.P.)

STATE OF CALIFORNIA )

COUNTY OF LOS manetins =

I am a citizen of the United States and a resident of the county

droresaid; I am over the age of eighteen (18) years and not a party

to the within entitled action; my business address is 7080 Hollywood

Boulevard, Suite 307 Hollywood, California 40028.

On January 19, 1984 I served the within NOTICE OF APPEAL TO THE

SUPREME COURT OF THE UNITED STATES on the interested parties in sai

action, by placing a true copy thereof enclosed in a sealed envelop

with postage thereon fully prepaid, in the United States mail at

Hollywood, California addressed as follows:

Otrice of the District Attorney

18000 Criminal Court Building

210 West Temple Street

Los Angeles, California 90012

Office of the Attorney General

3580 Wilshire Boulevard, Room 800

Los Angeles, California 90010

Court of Appeal, Second Appellate District

3580 Wilshire Blvd., Room 301

Los Angeles, California 90010

Judge Edward A. Hinz, Jr.

Superior Court of Torrance

Attention: Department K

825 Maple Avenue

Torrance, California 90503

Solicitor General

Department of Justice

Washington, D.C. 20530

I declare (or certify), under penalty of perjury, that the foregoind

is true and correct. “

Executed on January 19, 1984, at Los Angeles, California

JOHN P. KENOSIAN

= = %

EE ee

o onroaweFrt & dD FY

13:

=—_

. 4

~—-

In the Supreme Court of the

State of California

{ ROBERT CARLTON ENRIGHT, Appellant

» -v- No. 2 Crim #43532

STATE OF CALIFORNIA, Appellee

NOTICE OF APPEAL TO THE SUPREME COURT

OF THE UNITED STATES

Notice is hereby given that ROBERT CARLTON ENRIGHT, the

Appellant above-named, hereby appeals to the Supreme Court of the

United States from the final order of the Supreme Court of

California, denying a hearing in the case on November 23, 1983 and

affirming the judgment of conviction entered herein on September

28, 1983 by the Court of apBeal in the State of California, Second

Appellate District.

This appeal is taken pursuant to 28 U.S.C. 8 1257 (1).

JOHN P. KENOSIAN, Attorney for

Appellant

Appendix "C”

o oroauw f f ND

~ YY YY YY YP PP YY

oor nanerer BO WH KF O

~e-

STATE OF CALIFORNIA )

) ss.

COUNTY OF LOS ANGELES)

I am a citizen of the United States and a resident of the County

aforesaid; I am over the age of eighteen (18) years and not a part

to the within entitled action; my business address is 7080 Holl

Boulevard, Suite 307, Hollywood, California 90028.

On January 19, 1984, I served the within NOTICE OF APPEAL TO THE

SUPREME COURT OF THE UNITED STATES on the interested parties in said

action, by placing a true copy thereof enclosed in the sealed envelope

with postage thereon fully prepaid, in the United States mail at

Hollywood, California addressed as follows:

Office of the District Attorney

18000 Criminal Courts Building

210 West Temple Street

Los Angeles, California 90012

Office of the Attorney General

3580 Wilshire Blvd., Room 800

Los Angeles, California 90010

Court of Appeal, Second Appellate District

3580 Wilshire Blvd., Room 301

Los Angeles, California 90010

Judge Edward A. Hinz, Jr.

Superior Court of Torrance

Attention: Department K

825 Maple Avenue

Torrance, California 90503

Solicitor General

Department of Justice

Washington, D.C. 20530

I declare (or certify), under penalty of perjury, ghethe foregoing

is ture and correct.

Executed on January 19, i984, at Los Angeles, California.

JOHN P. KENOSIAN

o onrt’oeoeaer a@« wn Fe

RBBES SERS &B BU HE SC

——— ~<a

RECEIVED

JAN 2 5,194

OrriCE uF THE CLERK

4 IN THE SUPREME OURT, U.S.

2 a ———

x SUPREME COURT OF THE UNITED STATES

October Term, 1984

NO. 83 - 6156

ROBE.:I. CARLTON ENRIGHT, Appellant

Vv.

MOTION FOR LEAVE TO PROCEED

iN FORMA PAUPERIS

The Appellant, Robert Carlton Enright who is now on liberty

on his own recognizance, asks leave to file the attached Appeal from

the Court of Appeal for the Court Appeal of California, .Second

Appellate District without prepayment of costs and to proceed in Formal

Pauperis pursuant to Rule 53.

The Appellant's affidavit is support of this Motion is

attached hereto.

alle ee et ,

‘ JOHN P. KENOSIAN

‘ Counsel for Aprellant™

? 7080 Hollywooe Biva., Suite 307

Hollywood, California 90028 -

213-466-4525

o onroeoeaer a@« Nb Ff

we ee ee ee ee

b> aA ek Ak eS Oo

S$sSssps sek BRE

RECEIVED

JAN 2 5: 1984

OFFICE OF THE CLERR

SUPREME COURT. U.S.

IN THE

“ve

\ SUPREME COURT OF THE UNITED STATES

October Term, 1984

NO. 83 - 6] 56

ROBERT CARLTON ENRIGHT, Appellant

Vv.

THE STATE OF CALIFORNIA, Appellee

AFFIDAVIT

I, Robert Carlton Enright, being first duly sworn according to

law, depose and say, in support of my Motion for leave to proceed

without being required to prepay costs or fees: 1. I am the Appel-

lant in the above-entitled case. 2. Because of my poverty I am

unable to pay the costs of said cause. 3. I am unable to give

security for the same. 4. I believe that I am entitled to the red-

ress I seek in said case. 5. The nature of the case is briefly

stated as follows:

I was stopped and searched by customs officials at the Los

Angeles International Airport witout probably cause or a reasonable

suspicion that I wae carrying contraband. The case against me was

dismissed by the Superior Court for the County of Los Angeles on

October 1, 198? because of an illegal search and seizure.

On September 28, 1983 the Court of Appeal of the State of

California, Second Appellate District reversed the dismissal of the

instant case by the Superior Court of Los Angeles County and on

November 28, 1983 the Supreme Court of the State of California denied

a hearing in my case. The illegality of the search and seizure is

4/}/1

L440)

4/731

o onro2eaer® a db we

a Se ee ee ee ee ee ee

yaised in this appeal.

Duly witnessed and sworn to

Gay of January, 1984.

ROBERT CARLTON ENRIGHT

bet beng EI

ar a

before me, a Notary Public, this he La

PUBL

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