Petition for Writ of Certiorari — Mayer v. United States

wit Supreme Con, "S.

89-717 i 0

SEP 15 68

aed ANI Me

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1989

GEORGE LEE MAYER and JOHN

‘WILLIAM KETANER

Petitioners,

vs.

UNITED STATES: OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

NINTH CIRCUIT

KENNETH R. BROWN

BROWN & COX

10 West 300 South,

Suite 500

Salt Lake City, Utah 84101

(801). 363-3550 ~

Attorneys for Petitioners

QUESTIONS PRESENTED FOR REVIEW

1. Where police have probable cause

to search packages placed within a

vehicle, but no probable cause as to

the vehicle generally, was it

unreasonable for the police to conduct

a warrantless search of the packages

within the vehicle?

2. Since information acquired during

the warrantless search of the vehicles

was included in the Affidavit for a

Search Warrant of Petitioner Ketaner’s

house, was the Search Warrant

defective as the "fruit of the

poisonous tree"? x

LIST OF PARTIES IN THE

PROCEEDINGS BELOW

The caption of the case in this Court

contains the names of all parties

except Defendant Urban Daniel Gomes

was a party in the lower court and in

the appeal to the United States Court

of Appeals, Ninth Circuit.

CONCLUSION

APPENDIX "

APPENDIX *

SEARCH OF THE AUTOMOBILES

CONSTITUTED A VIOLATION OF

PETITIONER KETANER’S FOURTH

AMENDMENT RIGHT AND THE

INFORMATION DERIVED FROM

THAT ILLEGAL SEARCH WAS USED

TO OBTAIN A WRRANT FOR THE

SEARCH OF KETANER’S HOUSE.

THE RESULTS OF THE SEARCH OF

THE KETANER HOUSE ARE THE

FRUITS OF THE POISONOUS

TREE . . . . . . . 7 . . 22

> , . > . . . . . . . > . 24

A" . . > 7 . .2 7 . . . . 31

B" . . . . . . . . . >. . 32

TABLE OF AUTHORITIES

Arkansas v. Sanders, 442 U.S. 753

(1979) ... . . 13, 14, 16, 20, 21

Carrell v. Ynited States, 267 U.S. 132

(4923) oe « «6 . i2, 16, 18, 21

United States vy. Chadwick, 433 U.S. 1

(agers (eu Bi ts te ee, BO. 22

United States v. Johns, 469 U.S. 478,

482-83 (1985) . . . . . . oo >. _ _ . 7

United States v. Klein, 860 F.2d 1489,

Tel aa Se

United States v. Ross, 456 U.S. 798

(1982) sll - . J 7 a . 4, Fe 18, 19, 21

United States v. Salazar, 805 F.2d

1394, 1397-98 (9th Cir. 1986)... 5

V , 858 F.2d

1387, 1391 (9th Cir. 1988) .... 4

ac

CONSTITUTIONAL PROVISIONS

AND STATUTES

U.S.C.S. Comst. Amend. 4 ..... 3

28 U.S.C., Sec. Beeetapd « we cw ew ee eS

28 U.S.C., OG. 129k .'. « wens &

48 U.8.6., O00. 3232 «6 s wc ecsvs’®

242i U.S.C., Sec. S4l(a)(_l) . . .« « « 10

U.S.C.S. Court Rules Supreme

Court, Rule 17.1 (a) and (c) ..11

S33 Gels GE ES «6 2 6 ee 0 6 se ee

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1989

GEORGE LEE MAYER and JOHN

WILLIAM KETANER

Petitioners,

vs.

UNITED STATES OF AMERICA,

Respondent.

OPINION BELOW

The Memorandum issued by the

United States Court of Appeals for the

Ninth Circuit appears as Appendix "A"

to this Petition. The Memorandum

Opinion was issued not for publication

and would therefore not appear in any

official reports.

JURISDICTION

The Memorandum Opinion in the

United States Court of Appeals for the

Ninth Circuit was issued on May 22,

1989.

Petitioners herein filed with

the United States Court of Appeals

Appellant’s Petition for Rehearing in

Banc which was denied by the United

States Court of Appeals for the Ninth

Circuit on July 17, 1989.

Jurisdiction of this Court is

invoked pursuant to 28 U.S.C., Sec.

1254(1) and U.S.C.S. Court Rules

Supreme Court, Rule 17.1(a) and (c).

CONSTITUTIONAL PROVISIONS INVOLVED

U.S.C.S. Constitution Amendment

4 provides:

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

Fed ; 7 Li . ,

Petitioner’s were convicted of a

violation of Title 21, U.S.C. Section

841(a)(1). A timely Notice of Appeal

was filed pursuant to Rule 4B(f) of

the Federal Rules of Appellate

Procedure. Jurisdiction in the

District Court was conferred by Title

18, U.S.C., Sec. 3231. Jurisdiction

in the United States Court of Appeals

for the Ninth Circuit was conferred by

Title 28 U.S.C., Sec. 1291.

Facts material to the

d ; bi bed:

In September, 1987, agent Allan Winn

of the Drug Enforcement Administration

in Phoenix, Arizona, was introduced to

a confidential informant (Tr. 66)" The

informant provided detailed

1

References to

transcript refers to a hearing

on Petitioner’s Motion to

Suppress. ;

/

information relating to a marijuana

smuggling operation involving

Petitioners. (Te. Bz) Plans were

made for agents to conduct

Surveillance of a meeting between

Petitioner Mayer and informant

regarding this smuggling operation and

a recording was made of that

conversation. (Tr. 5 and 6) Plans

were made by Petitioner to meet near

Wickenburg, Arizona, in October of

1987. (we. F)

Or October 17, 1987, agents

conducted surveillance of a meeting

between the informant and Petitioners

and others at the intersection of

State Road 93 and the Alma Lake Road

in Arizona. (Tr. 9) Later that day,

the informant provided agents with

information about the plans to import

marijuana which was to be executed the

following day. The informant was to

fly to Mexico on the morning of

october 18, 1987, receive the

marijuana, then return to the air

strip where others with trucks would

offload the marijuana from the

airplane and put it into the waiting

vehicles. (Tr. 2i-dé, 55-56, 85-88)

The officer testified at the

suppression hearing that prior to the

time that the marijuana was unloaded

from the airplane, he had no

information that Petitioners were in

possession of any contraband. (Tr.

96)

On the morning of October 18,

1987, the plane, piloted by the

informant, was observed leaving

Arizona and followed by way of

transponder to the Mexican border.

(Tr. 33, 57) At about 2:30 p.m. on

that same date, it was again observed

by radar flying northbound from Mexico

towards the United States boarder.

(Tr. 33) The plane was then tracked

to the landing strip near the Alma

Lake Road. (Tr. 38) At that

location, approximately 20 agents were

present to conduct surveillance and to

make arrests. (Te. 38) The agents

also had surveillance aircraft

overhead and customs blackhawk

helicopter at their disposal. (Tr.

35)

The airplane landed at the air

strip and met two vehicles. A blue

pickup truck and a light colored mini-

van. The pilot and the two

individuals then were observed loading

the contents of the airplane into the

two vehicles. (Tr. 38-39, 89) Those

persons conducting surveillance were

able to see articles or items being

loaded by the individuals into the

vehicles from the aircraft. (Tr. 38-

39)

Special Agent Winn indicated at

the suppression hearing that he knew

that the marijuana was going to be

unloaded from a plane into the

vehicles and that he had no

information that there was marijuana

already in the vehicles when they

arrived at the airstrip. (Tr. 95 and

96)

~After driving a short distance,

the two vehicles went in different

directions and they were subsequently

stopped by law enforcement officers

where they were arrested and the

vehicles were taken to a staging area

where they were searched without a

warrant. (Tr. 55) The packages from

the airplane consisted of white cloth

bags which contained green heat~-sealed

plastic packages. (Tr. 42 and 49)

The marijuana was located inside of

those packages.

Petitioners were charged with a

violation of 21 U.S.C., Sec. 841(a)(1)

\

and after Petitioners’ Motions to

Suppress were denied, they entered

conditional guilty pleas, reserving

their right to appeal the trial

court’s ruling on their Motions to

Suppress Evidence.

ARGUMENT

POINT I

WHERE POLICE HAVE PROBABLE

CAUSE TO SEARCH A PACKAGE

PLACED WITHIN A VEHICLE,

BUT NO PROBABLE CAUSE AS

TO THE VEHICLE GENERALLY,

IT WAS UNREASONABLE FOR

10

THE POLICE TO CONDUCT A

WARRANTLESS SEARCH OF THE

PACKAGES WITHIN THE

VEHICLE.

According to the provisions of

Rule 17.1(c), Supreme Court Rules,

this Court may exercise its discretion

and review a lower federal court

decision which has decided an

important question of federal law,

either unsettled by this Court or ina

way in conflict with applicable

decisions of this Court. It is

respectfully submitted that the

opinion by the Ninth Circuit Court of

Appeals in this case involves an

important question of federal law

which should be settled by this Court

and the Federal Court of Appeals

11

Decision is in conflict with

applicable decisions of this Court.

It is also respectfully

submitted that the opinions of this

Court regarding the reach of the

automobile exception to the warrant

requirenent are not consistent one

with another, and ought to be settled

in this case.

In Carroll v. United States, 267

U.S. 132 (1925), this Court authorized

warrantless searches of automobiles if

such searches are based on probable

cause to believe that the vehicle in

question contains contraband. The

Carroll court, in fashioning the

“automobile exception" rule to the

a

12

warrant requirement premised its

holding on the "inherent mobility (of

automobiles) which often makes

obtaining a judicial warrant

impracticable."

This Court, in United States v.

Chaawick, 433 U.S. 1 (1977) and

Arkansas v. Sanders, 442 U.S. 753

(1979) held that a warrantless search

of a foot locker and a suitcase inside

a vehicle violated the Fourth

Amendment. In Chadwick, a foot locker

became the focus of police

investigation and suspicion when a

trained police dog alerted positively

to a sniff of the foot locker and the

foot locker was also observed to be

13

leaking talcum powder, a substance

commonly used to mask the odor of

marijuana. The foot locker was placed

in a vehicle which was stopped by

local agents. The foot locker was

opened without a warrant and marijuana

was discovered. This Court rejected

the Government’s argument that the

foot locker had some of the mobile

characteristics of automobiles, thus

justifying the warrantless search,

noting:

° ° ° A person’s

expectation of privacy in

personal luggage are

substantially greater than

in an automobile.

433 U.S. at 13.

In Arkansas _v. Sangers, supra,

14

police officers received information

that a person would arrive at the

local airport on a specified flight.

The informant provided the officers

with additional information regarding

this individual’s smuggling

activities. The person was located at

an airport, surveillance was conducted

and the green suitcase identified by

the informant was placed in a taxi.

The taxi was later stopped and a

warrantless search of the suitcase

resulted in the discovery of

marijuana. This Court relied on

Chadwick, supra, in holding that the

search of the suitcase without a

warrant violated the Fourth Amendment.

15

This line of cases, including

Chadwick and Sanders, may fairly be

read to require that when the focus of

the investigation is not upon the

automobile generally, i.e., the person

occupying the automobile is a known

drug dealer, the person in the

automobile sold me drugs, etc., but is

focused upon an identifiable thing or

object or container placed in an

automobile that the automobile

exception, as it is understood, in

Carroll, is not applicable.

The United ‘States Court of

Appeals for the Ninth Circuit in

United States v. Salazar, 805 F.2d

1394 (9th Cir. ares read this line of

16

cases as holding such when it said:

The Supreme Court has

distinguished between

searches of tontainers

found in a car based upon

probable cause that a

specific container placed

in a car contains

contraband, and searches

based upon a generalized

belief that a car contains

contraband somewhere

inside. In the latter

case, the entire vehicle,

including closed

containers found therein

may be searched to the

same extent § as if a

magistrate had issued a

warrant based on the

probable cause relied on

by the officers. Ross 456

U.S. at 823. Where, prior

to a search, officers have

probable cause to believe

that a specific closed

container holds

contraband, however, they

must obtain a search

warrant before opening it,

even though it is located

in an automobile.

17

The other line of cases,

starting with Carroll, supra, which

first. recognized the automobile

exception, generally hold that

probable cause to search an automobile

allows a search of a closed container

in an automobile without the necessity

of obtaining a warrant.

This Court in United States v.

Ross, 456 U.S. 798 (1982) held:

If probable cause

justifies the search of a

lawfully stopped vehicle,

it justifies the search of

every part of the vehicle

and its contents that may

conceal the object of a

search.

In Ross, the police had received

information from an informant that a

described individual was selling

18

narcotics kept in the trunk of a

particular car parked in a specified

location. The police went to the

specified area and stopped a vehicle

and driver matching the description

given by the informant. The officers

opened the trunk without a warrant and

obtained a paper bag from the trunk,

and in opening that, discovered

heroin. This Court held that the

obtaining of a warrant was unnecessary

and the evidence was not subject to

Suppression. It is important to note

in Poss, supra, that the information

provided to the police did not focus

the investigation on an individual

container or containers, but generally

19

upon the automobile. The police were

given information that basically a

drug dealer was selling drugs out of

his car. Unlike Chadwick and Sanders,

supra, where the focus of the

investigation was on containers placed

in a car.

: In the case at bar, officers

observed items being unloaded from an

airplane into vehicles. The focus of

the investigation was clearly upon the

items placed in the vehicle. Officers

did not have any information

indicating that generally drugs would

be found in the vehicles, but they

were able to specifically identify

those items which were placed in the |.

20

vehicles.

The holding in the case at bar

cannot be squared with the Chadwick

and Sanders line of cases and this

Court ought to entertain this Petition

for Writ of Certiorari in order to

‘reconcile this conflict in the cases.

: There is no principled

distinction between a foot locker as

in Chadwick or a suitcase as in

Sanders or a pull-type bag as in the

case at bar.

The above cases cannot_ be

reconciled with Carroll and Ross,

without doing violence to the warrant

requirement.

21

POINT II

BECAUSE THE WARRANTLESS

SEARCH OF THE AUTOMOBILES

CONSTITUTED A VIOLATION OF

PETITIONER KETANER’S

FOURTH AMENDMENT RIGHT AND

THE INFORMATION DERIVED

FROM THAT ILLEGAL SEARCH

WAS USED TO OBTAIN A

WARRANT FOR THE SEARCH OF

KETANER’S HOUSE. THE

RESULTS OF THE SEARCH OF

THE KETANER HOUSE ARE THE

FRUITS OF THE POISONOUS

TREE.

This Court in Wong Sung vv.

United , 371 U.S. 471 (1963) and

Dunaway v. New York, 442 U.S. 200

(1979) established the principle that

if evidence is derived from a

constitutional violation and there is

no break in the causal connection

between the constitutional violation

and the evidence obtained, that the

22

evidence is the fruit of the

"poisonous tree" and ought to be

suppressed. This Court in Dunaway

identified several factors to be

considered in determining whether

evidence is obtained by exploitation

of an illegal detention or whether the

causal connection has been broken.

These factors are the temporal

proximity of the constitutional

- violation and the search, the presence

of intervening circumstances and the

purpose and flagrance of the official

misconduct.

In the case at bar, the Dunaway

factors were not present. Therefore,

the search of Petitioner Ketaner’s

23

home and the evidence derived from

that search is fruit of the poisonous

tree under Wong Sung.

CONCLUSION

For the foregoing reasons, this

Court ought to grant the Petition for

Writ of Certiorari and review this

important area of the law.

Respectfully submitted,

BROWN & COX

By:

KENNETH R. BROWN

10 West Broadway

Suite 500

Salt Lake City, Utah

(801) 363-3550

Attorneys for

Petitioner, Mayer

24

GOODMAN, STEIN &

CHESNOFF

By:

DAVID C. CHESNOFF

520 South Fourth Street

Las Vegas, Nevada 89101

(702) 384-5563

Attorneys for Petitioner

Ketaner

25

STATE OF UTAH )

ss.

COUNTY OF SALT LAKE )

COMES NOW Kenneth R. Brown of

Brown & Cox, and having been first

duly sworn, depose and states as

follows:

1. I am a member of the Bar of

the Supreme Court of the United

States.

2. That on the 23rd day of

October, 1989, I deposited one

original and 40 copies of the

foregoing Petition for Writ of

Certiorari to the United States Court

of Appeals, Ninth Circuit in the

United States post office located at

26

Salt Lake City, Utah, addressed to the

Clerk of the U.S. Supreme Court,

Washington, D.C., 20543, first class

postage prepaid. Such filing was

timely.

Je That on the _2%rd day of

October, 1989, I deposited three

copies of the foregoing Petition for

Writ of Certiorari in the United

States post office located at Salt

Lake City, Utah, addressed to Stephen

M. McNamee, United States Attorney,

District of Arizona, and Robert A.

Colosi, Assistant United States

Attorney, 4000 United States

Courthouse, 230 North First Avenue,

Phoenix, Arizona, 85025, telephone

27

number (602) 261-3969, attorneys for

Respondent.

4. That on the 23rd day of

October, 1989, I deposited three

copies of the foregoing Petition for

Writ of Certiorari in the United

States post office located at Salt

Lake City, Utah, addressed to

Solicitor General, Department of

Justice, Washington, D.C., 20530.

KENNETH R. BROWN

28

~

SUBSCRIBED AND SWORN to before

me this” day of October, 1989.

NOTARY PUBLIC

Residing at Salt Lake

City, Utah

My Commission Expires:

29

APPENDIXES

APPENDIX "A"

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN WILLIAM KETANER,

Defendant-Appellant.

UNITED STATES OF AMERICA, ) No. 1291

)

Plaintiff-Appellee, ) DC No.

) CR-87-

vs. ) 0317PGR

)

GEORGE LEE MAYER, )

)

Defendant—Appellant. )

)

“ea

UNITED STATES OF AMERICA, ) No. 88-

) 1292

Plaintiff-Appellee, )

) DC No.

vs. ) CR-87-

) 0317PGR

)

)

)

)

UNITED STATES OF AMERICA, No. 88

1292

Plaintiff-Appellee,

DC No.

0317PGR

URBAN DANIEL GOMES,

)

)

)

)

vs. ) CR-87-

)

Defendant-Appellant. )

)

MEMORANDUM

Appeal From the United

States District Court for

the District of Arizona

Paul G.Rosenblatt,

District Judge, Presiding

Argued and Submitted

March 13, 1989

San Francisco, California

Betore: HUG, HALL, and O’SCANNLAIN,

Circuit Judges

* This disposition is not appropriate

for publication and may not be cited

to or by the courts of this circuit

except as provided by Ninth Circuit

Rule 36-3.

Following the district court’s

denial of their motions to suppress,

Mayer, Ketaner, and >Gomes’ pleaded

guilty to possession with intent to

distribute marijuana. They now appeal

their convictions, arguing, inter

alia, that the government' lacked

sufficient probable cause to justify

the warrantless searches of their

automobiles. We review de novo a

district court’s finding of probable

cause and its determination of the

legality of warrantless searches,

United States v. Linn, 862 F.2d 735,

739-40 (9th Cir. 1988), and we affirm.

The Fourth amendment to the

Constitution requires the police to

obtain a warrant before searching

one’s property. U.S. Const. amend.

IV. Among the various exceptions to >

this search-warrant requirement is the

so-called “automobile exception,"

which holds that, so long as the

police have probable cause to search a

lawfully stopped vehicle, they may

conduct the search of the vehicle and

its contents without first obtaining a

search warrant. United States v.

Ross, 456 U.S. 798, 825 (1982); United

States v. Vasquez, 858 F.2d 1387, 1391

(9th Cir. 1988). This exception does

not apply, however, where an

investigation focuses not on an

automobile or its general contents,

but rather on a particular container

which is subsequently placed in an

automobile. United States Vv.

Chadwick, 433 U.S. 1, 12-13 (1977);

United States v. Salazar, 805 F.2d

1394, 1397-98 (9th Cir. 1986).

Here, the uncontroverted facts

are that a reliable informant gave

detailed information to investigators

concerning a marijuana smuggling

operation, information which was only

fully corroborated when the plane

piloted by the informant touched down

where and when he said it would.

Although the investigators were able

to observe that the airplane’s

contents were being quickly

transferred to two waiting vehicles,

their distance from the landing strip

and the nature of the surrounding

vegetation precluded them from

identifying those contents, much less

any particular containers, be they

bags, bales, or bundles of marijuana.

Under these facts, in which the police

clearly had probable cause to stop the

vehicles and arrest their drivers, but

had neither observed nor focused their

investigation on any "specific closed

container believed to contain

contraband," see United States v.

~

Klein, 860 F.2d 1489, 1494 (9th Cir.

1988), we agree with the district

court’s conclusion that the

"automobile exception" line of

authority governs this case.’ See

United States v. Johns, 469 U.S. 478,

482-83 (1985) (authorities’ failure to

observe and identify specific

marijuana containers transferred from

airplanes to waiting vehicles meant

that probable cause to stop vehicles

and arrest drivers permitted

warrantless searches of automobiles;

* Because of our holding

that the district court did not

err on the question whether the

warrantless searches of the two

vehicles were constitutionally

permissible, Ketaner’s argument

concerning the "fruit of the

poisonous tree" infecting the

authorities’ search of his

residence with G warrant

necessarily fails and merits no

further discussion.

7

distinguishing both Ross and

Chadwick).

AFFIRMED.

Filed May 22, 1989.

APPENDIX "B"

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VS.

GEORGE LEE MAYER,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

vs.

JOHN WILLIAM KETANER,

Defendant-Appeilant.

Filed July 17, 1989

Before: HUG, HALL,

)

)

)

)

)

)

)

)

)

}

)

)

)

)

)

)

)

)

)

)

)

No. 1291

DC No.

CR-87-

0317PGR

No.

1292

88-

DC No.

CR-67*

0317PGR

ORDER

and O’SCANNLAIN,

Circuit Court Judges

The panel has voted to deny the

petition for rehearing and to reject

the suggestion for rehearing en banc.

The full court has been advised

of the en banc suggestion, and no

judge of the court has requested a

vote on it.

The petition for rehearing is

DENIED and the suggestion for

rehearing en banc is REJECTED.