Petition for Writ of Certiorari — Edgar v. United States

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.) 7 Supreme Court, U.S,

i FILED

nS eS :

90-417 il os m

No. | BRAFPH F. SPANO, JR.

_ aa

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1989

DAVID WELLS EDGAR,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE TENTH CIRCUIT

KENNETH R. BROWN

BROWN & COX

10 West 300 So., #500

Salt Lake City, Utah

(801) 363-3550

Attorneys for Petitioner

QUESTIONS PRESENTED FOR REVIEW

Under the "objective standard"

regarding police conduct in connection

with the formulation of reasonable

articulable suspicion, were there

sufficient "objective" facts to justify

the petitioner’s detention and seizure of

incriminating evidence, or was’ the

seizure unconstitutional as violative of

the Fourth Amendment to the United States

Constitution.

LIST OF PARTIES IN THE

PROCEEDINGS BELOW

The caption of the case in this

court contains the names of all parties

in the court below.

TABLE OF CONTENTS

Questions Presented for Review .i

List of Parties in the Proceedings

Below 2 o s* . a _ — - = . s. — . ii

rr ¢ 5 5 « ¢ # «© 6 « « 3

LO ee eee eee

Constitutional Provisions

ee eee Gl,

Statement of the Case ...... 3

Federal Jurisdiction ...... 3

Facts Material to the Consideration

of Questions Presented ..... 4

ee « « «© «+s « «6 » « «0 « bs

Di a els) 6 gis ee ee « eo | SG

SE” ee ee ee ee: |

Michigan v. Chesternut, ____ U.S. ___, 43

Gil «ive 3077 sd e s e « s ° e e e ° . . 17

Reid v. Georgia, 448 U.S. 438, 440-

6 (IGGL 8 se eee ee tt BI,

Terry v. Ohio, 392 U.S. 1

[eet fe ee te em 2, we, Oe

United States v. Cortez, US

28 Cr.L. 3051, 3053, (1981) . ... . 26

United-States v. Glass, 741 F.2d 83 (5th

Cir, 39606) 2» » ‘ ‘ a

United States _v. McCranic, 703 F.2d 1213

(10th Cir. 1983) ... +. +++ 33

United States v. Mendenhall, 446 U.S.

544, 100 S.Ct. 1870 (1980) .... . 33

United States vy. Sokoloy, 109 S.Ct. 1581

(1989) ... ; « & « Oo ee

AND STATUTES

¥.8.¢C.8. Constitution

Amendment 4

4a 0.8.¢., §841(a)(1) (1982)

—_.. = @ | a, ee >; 2 eS a

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1989

DAVID WELLS EDGAR,

Petitioners,

vs.

UNITED STATES OF AMERICA,

Respondent.

OPINION BELOW

The Opinion issued by the United

States Court of Appeals for the Tenth

Circuit appears as Appendix "A" to this

Petition. The Opinion was issued and

filed with that Court on May 21, 1990, as

a nonpublished opinion and does not

appear in the official reporting

services.

JURISDICTION

The Opinion in the United States

Court of Appeals for the Tenth Circuit

was issued on May 21, 1990, and filed

with the Court.

A timely Petition for Rehearing was

filed with the United States Court of

Appeals for the Tenth Circuit, and an

Order denying that Petition for Rehearing

was filed on June 12, 1990. A copy of

that Order denying petitioner’s Petition

for Rehearing appears as Appendix "B" to

this Petition.

Jurisdiction of this Court is

envoked pursuant to 28 U.S.C., 1254 (1)

and U.S.C.S. Court Rules, Supreme Court

Rule 17.1(a) and (b).

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

Petitioner Edgar was convicted of

the crime of possession of a controlled

substance with intent to distribute in

—————————————————————————

———

violation of 21 U.S.C., § 841(a)(1)

(1982).

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 18 U.S.C. 3231.

Jurisdiction in the United States Court

of Appeals for the Tenth Circuit was

conferred by Title 28 U.S.C., § 1291.

laterial to the ¢ ig bi

eC bj : ted

On November 30, 1988, the Utah

Highway Patrol and the Grand County

Sheriff’s Office established a roadblock

50 miles northeast of Moab, Utah on

Interstate 70, eastbound. (Tr. Hearing-

2/15/89, at 4)

Ostensibly, the purpose of the

roadblock was to check drivers’ licenses

and registrations on all vehicles

traveling eastbound on Interstate 70.

The stated exception to this was that of

long-haul truckers. (Tr. Hearing

2/15/89, at 6)

At a hearing on petitioner’s Motion

to Suppress, the police officer testified

that the roadblock operated, as to each

vehicle that came through, in the

following fashion: all eastbound

traffic, with the exception of long-haul

truckers, was stopped at the roadblock

and channeled into a single lane of

traffic, that being the right-hand lane

of traffic. From the right lane of

traffic, all cars were diverted to the

park lane or far right side of the

freeway, where officers would require

that the driver produce has aGriver’s

license and registration. The officer,

in addition to examining these documents,

would then make a physical examination of

the vehicle for equipment violations.

(Tr. Hearing 2/15/89, at 41-42) This

process was estimated to take

approximately five minutes for each car.

(Tr. Hearing 2/15/89, at 28)

There were a total of five citations

issued to travelers at this roadblock.

(Tr., Hearing 2/15/89, at 57, doc. 22 at

2) Four of the five citations were

issued to drivers of out-of-state

vehicles. (Doc. 22) ‘Two of the persons

who were issued citations were located by

petitioner and testified at the

Suppression Hearing. Since they arrived

at the roadblock at different times, they

offered a general description as to how

the roadblock was being operated.

The first of the two witnesses to

approach the roadblock was George Webb

from Boulder, Montana. (Tr. Hearing

2/15/89, at 66) He testified that he

received the citation at the roadblock at

12:35 p.m. (Tr. Hearing 2/15/89, at 67)

He was at the roadblock for a period of

approximately one-half hour, during which

time his vehicle was searched twice and

he was issued a traffic citation. (Doc.

22 at 2) He testified that during that

one-half hour period, certain cars were

not being pulled over to the far right

side of the freeway and only brief

contact (1-2 minutes) was made with the

Grivers. These persons were stopped in

the lane of travel (as opposed to the far

right as Deputy Brewer had testified) and

there may have been verbal contact with

these individuals. However, Mr. Webb aid

not observe any documents being exchanged

and described these people as "family

types." He was certain that they did not

pull over to the far right side of the

freeway or parking strip and they were

simply briefly contacted by the police

mie

officers and then waived through the

roadblock. (Tr. Hearing 2/15/89, at 70)

Another person from Nebraska by the

name of Michelle Simms, arrived at the

roadblock approximately 20 minutes prior

to the petitioner and made certain

observations regarding how the roadblock

Operated. (Tr. Hearing 2/15/89, at 60)

She testified that during the time

between her vehicle being stopped and the

time petitioner’s vehicle was stopped,

there were approximately three vehicles

Simply waived through the roadblock

without producing any documents. (or.

Hearing 2/15/89, at 61 and 64) During

this period of time, there were

sufficient officers to Operate the

roadblock and obtain documents from the

vehicles, but they did not. (Tr. Hearing

2/15/89, at 64) The officers simply made

some observations regarding the occupants

and waived the cars through the

roadblock. (Tr. Hearing 2/15/89, at 65)

After the Simm’s vehicle had arrived

at the roadblock, petitioner approached

the roadblock. Deputy Curt Brewer

approached petitioner, who was the lone

occupant of the vehicle, and directed

that he park his vehicle to the extreme

right of the parking strip. (Tr. hearing

2/15/89, at 8-9) Petitioner was asked to

produce his driver’s license and

registration, which he did. The officer

determined that the vehicle was properly

registered to another person and that

petitioner was properly licensed with a

California driver’s license. The vehicle

was also registered in California and

bore California license plates. (Se.

hearing 2/15/89 at 11) Noticing that the

vehicle was registered to another person,

the officer inquired of petitioner

whether or not he had permission to drive

the vehicle. Petitioner assured the

officer that he had the owner’s

permission. (Tr. Hearing 2/15/89, at 12)

Apparently, the officer was not concerned

about this fact because he testified that

_it was not unusual for a car to be loaned

to someone else. (Tr. Hearing 2/15/89,

at 33-34) He made no effort at that

point to run an N.C.1I.C., and did not,

until well after petitioner’s arrest.

(Tr. Hearing 2/15/89, at 51)

~ The officer testified that during

his encounter with petitioner, Mr. Edgar

"seemed a little bit nervous." (tr.

Hearing 2/15/89, at 13) On cross-

examination regarding that "nervousness",

the following exchange occurred:

Q. I am trying to find out what it

is that made you feel he was

nervous. What I am getting is

that he looked straight ahead,

is that correct?

A. That is correct.

Q. And other than that, that is all

you can tell the court as to

your perception of nervousness?

A. That is correct.

(Tr. Hearing 2/15/89, at 36)

i 12

Because of that perception of

"nervousness", the officer did not "feel

comfortable" in allowing Mr. Edgar to

drive away. He testified that in a

typical roadblock stop when he _ was

through examining the documents, he would

Simply say "thank you", which would be a

Clear indication to the driver that he

was free to go. In this case, because of

his perception of "nervousness", he never

said to petitioner, "thank you", or gave

any indication that he was free to go.

(Tr. Hearing 2/15/89, at 53)

Two other circumstances seemed

"suspicious" to the officer. The first

of those was what the officer described

as the "cleanliness" or the absence of

items in the car.’ However, on Cross~

examination, all of the things which he

thought to be "unusual" in not being

present in the car, he- testified, were

indeed present in the interior of the

vehicle, with the exception of 4 nen

(Tr. Hearing 2/15/89, at )

Additionally, the vehicle had skis and

ski poles on top of the car and ski boots

in the trunk. Regarding the contents of

the vehicle, the following exchange

; The officer testified

on direct that skiers have

parkas, sunglasses, gloves,

food items and blankets in

their vehicles. During cross~

examination, he testified that

appellant had in his vehicle

sunglasses, food items, a

jacket and skis attached to the

top of the car. (Tr. Hearing

2/15/89, at 37-38)

occurred:

Q. But somehow whatever they have

(skiers) although we don’t know,

his didn’t have. Is that

correct?

A. To a certain extent.

The only other "suspicious"

circumstance in the officer’s mind was a

smell emanating from the car which he

Said was consistent with after shave

lotion. There was nothing unusual about

such a smell. During an inventory of the

car after petitioner’s arrest, officers

discovered some air fresheners which were

still factory sealed in plastic in the

car’s glove compartment. (Tr. Hearing

2/15/89, at 41)

The officer testified he did not

"feel comfortable" in allowing petitioner

to drive away, and for that reason, he

continued to investigate and ask

petitioner questions while never

indicating to petitioner that he was free

to leave. He asked petitioner to exit

the vehicle and allow a search of the

trunk of the vehicle. After further

search and investigation, cocaine was

located in a hidden compartment under the

trunk. (Tr. Hearing 2/15/89, at 20)

ARGUMENT

POINT I

UNDER THE OBJECTIVE STANDARD AS

ARTICULATED BY THIS COURT IN

CONNECTION WITH THE FORMULATION

OF REASONABLE, ARTICULABLE

SUSPICION, THERE WAS NOT

SUFFICIENT "OBJECTIVE" FACTS TO

JUSTIFY THE PETITIONER’S

DETENTION AND’ THE SEIZURE OF

INCRIMINATING EVIDENCE.

This Court, in United States v.

Mendenhall, 446 U.S. 544, 100 S.Ct. 1870

(1980), established the objective

standard in determining whether or not an

individual is seized for Fourth Amendment

purposes, in holding as follows:

A person has been "seized" within

the meaning of the Fourth Amendment

only if, in view of all the

circumstance surrounding the

incident, a reasonable person would

have believed that he was not free

to leave.

Most recently, the United States

Supreme Court followed the Mendenhall

standard in Michigan v. Chesternut,

U.S. 43 Cr.L. 3077, holding as

follows:

The appropriate test is whether a

reasonable man, viewing the

particular police conduct as a whole

and within the setting of all the

surrounding circumstances, would

have concluded that the police had

in some way restrained his liberty

so he was not free to leave.

In the Chesternut case, the police

were on routine patrol and observed a

person running away from an establishment

on foot. They accelerated their police

car and drove along side of the

individual and observed him discarding

evidence. The officers stopped and

determined that the material he had

discarded was pills containing codeine.

They then gave chase and arrested hin.

He sought to suppress the evidence he

discarded. The highest state court

agreed with this contention.

The United States Supreme Court

reversed finding that under the

"reasonable man" standard he had not been

seized at the time the officers gave

chase.

The Court commented on the objective

standard and gave the rationale for the

standard as follows:

While the test is flexible enough to

be applied to the whole range of

police conduct in an equally broad

range of settings, it calls for

consistent application from one

police encounter to the next,

regardless of the particular

individual’s response to the actions

of the police. The test’s objective

standard--looking to the reasonable

man’s interpretation of the conduct

in question--allows the police to

determine in advance whether the

conduct contemplated will implicate

the Fourth Amendment. [citations

omitted] This “reasonable person"

standard also insures that the scope

of the Fourth Amendment protection

does not vary with the state of mind

of the particular individual being

approached.

In the instant case, there is no

question that petitioner was seized for

Fourth Amendment purposes when he entered

the roadblock. The officer testified

that persons did not have the option of

going around the roadblock. All cars

were stopped and had anyone attempted to

go around the roadblock, the officers

would have given chase. The question in

this case is whether or not at any point

in time, after his initial seizure, a

reasonable person would have believed he

was free to go. Did the officers ever

give clear indication that petitioner was

free to leave, such that a reasonable

person would have believed that he was no

longer seized for Fourth Amendment

purposes. The answer to this question

must be "no". From the time of this

entry into the roadblock until the

Giscovery of cocaine, his freedom of

movement was significantly restricted in

that he was under the direct control of

the police officers. He was directed to

provide certain documentation. Certain

questions were put to him and he was

never told by the officer that he was

free to leave. A reasonable person would

believe that until the officer gave him

a clear indication that he was free to

leave by saying "thank you" or "you may

leave" that he was not free to leave. In

the instant case, the officer never

indicated to petitioner that he was free

to leave. He never said "thank you" or

words to that effect. Did the officer

believe he had released the petitioner?

No. The officer did not intend to convey

to petitioner that he was free to go.

As recently as April 1989, this

Court, in United States v. Sokolow, 109

$.ce,. 1581 (1989) reatfirasd the

continued vitality of the objective

standard where this court said:

The officer, of course, must be able

to articulate something more than an

"inchoate and unparticularized

suspicion or hunch". The Fourth

Amendment requires "some minimal

level of objective justification"

for making the stop...

A court sitting to determining

the existence of reeasonable

suspicion, must require the agent to

articulate the factors leading to

that conclusion, but the fact that

these factors may be set forth in a

"profile" does not somehow detract

from their evidentiary significance

as seen by a trained agent.

With this in mind, this Court

should consider the "articulated" facts

under the "objective standard" to

determine whether or not those facts

justify the petitioner’s detention as

being based upon "reasonable, articulable

suspicion."

In 1968, the United States Supreme

Court, in Terry v. Ohio, 392 US 188 S.Ct.

1868, 1880 (1968) authorized a search and

seizure based on less than _ probable

cause. Through the years, the Terry

doctrine has expanded into other areas,

but the underlying principles have never

changed. The holding of Terry is that an

officer who has a reasonable, articulable

suspicion that his safety is jeopardized,

may pat down a suspect for the limited

purpose of determining whether or not

that person is armed. If in the process

of that pat down, evidence is discovered,

it may be used against the accused at

trial.

The two main teachings of Terry

which have consistently been applied to

Fourth Amendment analysis are: (1) a

principled distinction has to be made

between inarticulate hunches and

reasonable, articulable suspicion; and

(2) the search must be reasonably limited

in scope to the justification for the

intrusion.

As to the first general principle,

that of distinguishing between

inarticulate hunches and reasonable

articulable suspicion, the Terry court

said:

The scheme of the Fourth

Amendment becomes meaningful only

when it is assured that at some

point the conduct of those enforcing

the laws can be subjected to the

detached, neutral scrutiny of a

judge who must- evaluate the

reasonableness of a particular

circumstance. And in making that

assessment it is imperative that the

facts be judged against an objective

standard: would the facts available

to the officer at the moment of the

seizure or the search "warrant a man

of reasonable caution in the belief"

that the action taken was

appropriate. [citations omitted]

Anything less would invite

intrusions upon constitutional

rights based on nothing’ more

substantial than inarticulate

hunches, a result this court has

consistently refused to sanction.

In 1981, the United States Supreme

Court, in United States v. Cortez,

US 28 Cr.L. 3051, 3053, (1981)

said:

This demand for specificity in the

information upon which police action

is predicated is the central

teaching of this court’s Fourth

[emphasis in original text]

What one learns from this principle

is that the suspicion referred to in

Terry must be reasonable as measured

against an objective standard. To

distinguish a "hunch" from the

constitutional "reasonable, articulable

suspicion", the facts as articulated must

justify a reasonable suspicion, pursuant

to the objective standard.

As a matter of law, this Court could

not conclude that the facts’ and

circumstances, as articulated by the

police officer, rise to the level of

"Terry" facts to allow petitioner

continued detention.

The United States Supreme Court in

Reid vs. Georgia, 100 S.Ct. 2752, (1980)

was confronted with the following facts:

the defendant arrived in Georgia from

Florida in the early morning hours. He

was separated from another man carrying

the same type of luggage he was. Eye

contact was made between the two men, but

they kept themselves separated as they

proceedea down the concourse. Then

defendant looked backwards towards the

other man as he was so moving. The other

person caught up with him at the baggage

area and they left together. The

defendant in Reid became nervous during

the encounter with police and when asked

if they could search the luggage he was

carrying, he consented. As he was

walking with them to the office, he

bolted and abandoned the bag which was

later discovered to contain cocaine. The

Court concluded, at 100 S.Ct. 2754, as

follows:

We conclude that the agent could not

as a matter of law, have reasonably

suspected the petitioner of criminal

activity on the basis of these

observed circumstances. Of the

evidence relied on, only the fact

that the petitioner preceeded

another person, and occasionally

looked backward at him as they

proceeded through the concourse

relates to their particular conduct.

The other circumstances describe a

large category of presumably

innocent travelers who would be

subject to virtually random seizures

were the court to conclude that as

little foundation as there as in

this case could justify the seizure.

Nor can we agree on this record,

that the manner in which the

petitioner and his companion walked

through the airport reasonably could

have lead the agent to suspect them

of wrong doing. Although there

could, of course, be circumstances

which wholly lawful conduct might

justify the suspicion that criminal

action was afoot, (See Terry vs.

Ohio), this is not such a case. The

agents believe the petitioner and

his companion were attempting to

conceal the fact that they were

traveling together, a belief that

was no more than inchoate and

unparticularized suspicion or hunch,

than a fair inference in the light

of his experience is simply tco

slender a reed to support the

seizure in this case. [citations

omitted ]

Consequently, the Supreme Court, in

Reid, on facts much stronger held that as

a matter of law, the agent could not have

reasonably suspected the petitioner of

criminal activity on the basis of the

articulated observed facts.