Petition for A Writ of Certiorari — Lee Marshall Harris and Morris Ray Caldwell v. United States

2. This case involves an important question of

be, settled by this Court ................

3. Review should be available at this time. even

the judgment below is not final in

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Alexander v. United States, 362 F.24379 ......

Carroll v. United States, 267 U.S. 12

Carroll v. United States, 334 Us. 38s

260

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> TABLE OF AUTHORITIES CITED

Lae |

Castilto-Garcia v. United States, 424 F. 24 482

Corvantes v. Unite States, 263 F. 2 %

Gonzatee-Alonso v. United States, 379 F.24 347 ..

Henderson v. United States, 390 F.24 80S 0

Kate v. United States, 309 Us. 4,7 —

Kent v. Dulles, 357 U.S. 116 6 nse

King v. United States, 348 F.24 814 rr

Land v. Dollar, 330U.S.731 ..... 5

„mus ..............

Morales v. United States, 378 F. a 187 ........

Plazole v. United States, 291 F.2456 ....... 3.

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: Ramires v. United States, 263 F. s 4

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a New York, 392US.40 2.0.2... 10

rere - 9

Terry v. Ohio, 52 Us 0 K 10

— — 8 1

United States v. Gen, 400 F. .......... *

United States v. MoGlone, 38¢F.2475 ........ 7,8

United States v. Pedersen, 300 F.Supp. 669 8

Se. ‘

Valader v. United States, 6 F. 2 ........ 7

Warden v. Hayden, 387US. 294 ............ 10

"Ww. United States, uns ooo 12

Willis v. United States, 370 F.24604 .......... 7

Statutes (United Staves)

United States Constitut' n. Fourth Amend. 2, 10

D 8 7. 10

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R. Stern & k Grewmnan, Court Practice,

Sec. 4.19 (4th od. 1969) ....... 2.2.6 one, :

12

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*

The petitioners, Lee Masshall Harris and Morris Ray

Caldwell, respectfully pray that a writ of certiorari issue

to review the judgment and opinion of the United States

Court of Appeals for the Ninth Circuit entered in this

proceeding on July 27, 1970.

- a

The opinion of the Court of Appeals, not reported,

appears in the appendix hereto (Appenaix A). No

opinion was rendered by the District Court for the Central

District of California. (Appendix “A” is as originally issued.

This was later corrected to reflect appeal from the “Central

District of California.)

The judgment of the Court <f Appeals for the Ninth

Circuit was entered on July 27. 1970. A timely petition

for rehearing in banc was denied on August 28, 1970 (Appen-

dix N), and this petition for certiorari was filed within 30

days of that date. This Court's jurisdiction is invoked under

2 U.S.C. 125401).

1. Whether the Court should consider, on a petition

for certiorari, the judgmer t of the Court of Appeals reversing

a pre-trial district court order suppressing evidence as uncon-

stitutionally seized. 3

2. Whether federal customs agents may. consistent

with the Fourth Amendment and federal statutes and regula-

tions, c, any vehicle at any time and ai any distance from

the border, simply because the vehicle has been kept under

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“constant surveillance” from the time it crossed e border.

3. Should the Court review a decision of a Court of

Appeals which has reversed an orde of a district court com

petting the suppression of evid-nce, when this is the only

evidence which the government seeks to use’

STATEMENT OF THE CASE

This case involves the legality of so-called “extended

border searches.” A truck crossed the Mexican-American

border at San Ysidro, California, and drove to Los Angeles.

Customs officials who had followed the truck from San

Ysidro arrested petitioners as they left the location at

which it was parked in Los Angeles. The officials then

returned to the truck, searched it, and discovered contra-

band. :

Judge Manua! Real, of the Central District of California,

held that the search of the truck was illegal and ordered that

the contraband taken from the truck (the governments only

evidence) be suppressed. The United States sought review.

On July 27, 1970, in a one-sentence per curiam opinion, the

Court of Appeals for the Ninth Circuit reversed. Petitioners

filed a timely petition for rehearing and for rehearing in

banc. The petition for hearing. together with a motion

for stay of the mandate, was denied by the court on Aug-

ust 23, 1970.

1. The Decision Below Conflicts With The Decisions Of

Other Courts of Appeals.

A. The decisions of the Ninth Circuit:

The “extended border search” decisiors arising out

of the Ninth Circuit have undergone conssderable change in

were of a “specialized category, readily distinguishable”

from other searches (United States v. Yee Ngee How, 105

F.Supp. $17 IN. D. Cal. 1952]), and that because of the need

for “national self-protection” (Carroll v. United States, 267

U.S. 132, 154 [1927}), they could be of “the broadest —

possible character (Yee Ngee How, supra, 105 F Supp. at

$20). All persons crossing the border were subject to search

without warrant, without arrest, and without probable

cause.

The debate and change has centered around the location

of the border. It has long been clear that routine investiga-

tion conducted as the individual came across the border was

permissible. Questions first arose, as in Yee Ngec How, supra,

when the search was not the routine and expected search, but

a delayed and secondary search. Still, these searches were

upheld because they did take place on the border. Searches

a great distance from the border were not permitted. Ir.

Cervantes v. United States, 263 F. 24 800 (1959), the Ninth .

Circuit held that a search of an auto more than seventy

miles from the border, where there was “no indication. . .

that [the defendant] had wrongfully eluded federal officials

at the border, could not be justified, because there was no

“showing of probable cause” (263 F. 2d at 803 n. 5). Plazola

v. United States, 291 F. 2 36 (9th Cir. 1961), involved sub-

stantially similar facts. Of importance is only the fact that

the car “had been followed by customs agents to the point

P

where it was stopped” (291 F.2d at $8), “fifty or sixty

miles north of the Mexican Sosder™ (291 F.2d at $7).

There was no discussion of the “constant surveillance’;

—— soquised to guaduce protatte couse

(291 P.24 at 61).

In suteequent cases the “elastic” border has been

stretched and the necessary justifications for the Search

have shrunk. In King v. United States, 348 F.2d 814

(9th Cir. 1965), a search eight miles from the border was

held to be just like a search on the border. “Constant sur-

. velllance” was noted by the court as important, but there

was still retained the | squirement that there be “no un-

reasonable ime and “no unreasonable distance between

the border and the place where the search was made (348

F. 2d at 816). Cervantes v. United States, supra, was di

tinguiched, both because there had been no “pursuit” of

Cervantes and because the cause to arrest him was less.

Plazola, supra, was ignored.

Alexander „ United States, 362 F. 26 379 (9th Cis.

1966). presents the next step in the stretching of the

“elast. ’ bo: dcr. It is not clear how far the car was from

the border ‘hen it was searched. Significant, however, is

the increased importance given to “surveillance” (362 F.2d

at 380). No longer need the search be within a reasonable

time and distance of the border. These factors were held

to be important only insofar as they might “convince the

fact finder with reasonable certainty that any contraband

iat be tound in the or on the vehicle at the time

Gt en. was aboard the vehicle at the time of entry into

the jusisdiction of the United States (362 F. 2d at 382).

The stage was then set for the holdings in Gonzales-

6

Alonso v. United States, 379 F.2d 347 (9th Cir. 1967)

(search eleven miles from the border permissible); Rod-

riguez-Gonzales v. United States, 378 F. 2d 256 (9th

r. 1967) (search twenty miles from the border permis-

sible); Castillo-Garcia v. United 24 F. 2d 482

(9th Cir. 1970) (search one hundred five miles from the

border permissible), and the holding of the present case,

allowing a search one hundred fifty miles from the border.

Thus, the Ninth Circuit now holds that “the distance

from the border, whether it be 105 miles or 500 miles,”

is of itself unimportant. “Probable cause is not neces-

sary. There is no standard of cause which must be satis-

fied. Castillo-Garcia v. United States, supra, 424 F. 2d at

484.

B. The decisions of the Fifth Circuit:

The “extended border search” cases of the Fifth Cir-

cuit fall into a relatively consistent pattern. The standard

employed by that court is distinctly different from the

one now used by the Ninth Circuit. The focus is not upon

“surveillance” but upon “necessity” and “reasonable

cause.” '

The earliest decision appears to be Ramirez v. United

States, 263 F.2d 385 (1959). The search there apparently

took place a considerable distance from the border (263

F.2d at 386 n. 1). The importance of the case is that the

search was conducted at a routine check point, one which

was—“of necessity” et up a distance from the border.

Moreover, the conduct of the defendants gave the customs

officials probable cause to search (263 F.2d at 387 n. 2).

2

in

Marsh v. United States, 344 F. 24 317 (1965), is sub-

stantially similar. The court required that there be some

showing by the arresting customs officers “which reasonably

justified” the extended border search. There was no discus-

sion of “surveillance”; the focus remained on the cause for

the search.

Valadez v. United States, 358 F.2d 721 (Sth Cir. 1966);

Willis v. United States, 370 F. 2d 604 (Sth Cir. 1966); Morales

„ United States, 378 F. 28 187, 190 (1967), and Stassi „

United States, 410 F.2d 946, 951°(1961), all requise at least

“reasonable cause to suspect” before a search can take place.

(This is the language of 19 U.S.C. Section 482, the statute

which gives authority to search to customs officials.) No

case has focused on surveillance alone. See especiaily

Stassi v. United States, supra. No case has entirely exempt-

ed customs officials from showing reasonable cause. All

cases differ substantially from those decided in the Ninth

Circuit.

C. The decisions of other circuit courts:

Apperently, most of the problems involving “extend-

ed border searches” arise in the Fifth and the Ninth Cir-

cuits, for there are few in the remaining courts. Those few

cases, however, agree in their rejection of the standard

employed by the Ninth Circuit. In United States v.

Melone, 384 F.2d 75 (4th Cir. 1968), the court took

into consideration “the distance of the search from the

point where the goods crossed the border, the time that

has elapsed since the suspect had an opportunity to bring

in the goods, and the circumstance upon which the officers

e

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base their suspicions” (384 F. 2d at 78 [footnotes omitted).

Judge Waterman, in United States „ Glaziou, 402 F. 2d 8

(2d Cir. 1968), offers one of the bes‘ criticisms of the Ninth

Circuit view with this comment:

Aol f course the authority of customs officers to

search an individual after a person has left the

border area is more limited than the right of

customs officers to search at the actual border.

If this were not the case, an individual would

always be subject to search without probable

cause no matter where he was in the United

States, and no matter how long he had been

inside the United States if the search were con-

ducted by the Bureau of Customs. Such a condi-

tion would be repugnant to the principles of the

Fourth Amendment.” (402 F.2d at 8, 13, 14 no.

Ss

The difference in result when the standard of the Sec-

ond Circuit is employed is made clear by United States v.

Pedersen, 300 F. Supp. 669 (D. Vermont 1969).

2. This Case inv-éves An important Question Of Federal

Law Which Has Not Been, But Should Be, Settled By

This Court.

This Court has never directly ruled on the standard

to be used in determining the legality of border searches.

The dictum of Chief Justice Taft in Carroll v. United States,

267 U.S. 132, 154 (1927), represents the only attempt by

the Court to set any standard for border searches: -

“Travelers may be so stopped in crossing

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an international boundary because of ptional

self-protection i sesonably req rn one enter- _

ing the c/ untry to identify himself as entitied

to come, and his belongings as effects which 9

may be lawfully brought in. But those awfully —

within the country, entitied to use the public

highways, have a right to free passage without

interruption or search uniess there is known to

a competent official authorized to search, prob-

able cause for believing that their vehicles are

carrying contraband or illegal merchandise.

This statement has been completely disregarded by i

the Courts of Appeals and was disregarded by the court

below in this case. The search of the truck in Los Angeles

was approximately | 50 miles from the border over which

it crossed. This, according to the Court of Appeals, makes

no difference. The distance from the border, whether it

be 105 miles or S00 miles,” is of itself unimportant. C

tilio-Garcia v. United States, 424 F. 2d 482, 485 (9th Cis.

1970), and cases there cited. The Ninth Circuit has also

consistently held that probable cause to search is unnec-

essary. Castillo-Garcia, supra, 424 F.2d at 482.

The only showing that the Ninth Circuit requires is

that there be “reasonabie certainty that any contraband

which might be found in the vehicie at the time of the

search ‘was aboard the vehicle at the time of entry into

the jurisdiction of the United States. Castillo-Garcia,

supra, 424 F.2d at 485. This requirement is satisfied,

according to the Ninth Circuit, whenever there is “con-

stant surveillance” of the vehicle from the border to the

place of search. Petitioners in the present case stipulated

that there was such surveillance.

Petitioners have argued and will contend that the ſocue

on “surveillance” ignores fundamental Fourth Amendment

than they need to efficiently enforce the customs laws of the

United States. The relevant statutes and regulations need not

and should not be interpreted to sanction efforts of customs

officials which so deeply and unnecessarily intrude upon the

reasonable expectations of security of those persons—of

both this country and foreign countries—who return or visit

the United States. See Katz v. United States, 389 U.S. 347

(1968); Kent v. Dulles. 357 U.S. 116 (1958).

The Ninth Circuit has itself concluded that the Fourth

Amendment applies to “border searches” (Henderson v. a

United States, 390 F. 2d 805, 807 (9th Cir. 1967) but

refuses to recognize the fundamental constitutional corollary

that the nature of the material sought cannot justify a search.

See Warden v. Hayden, 387 U.S. 294 (1966) (concurring

opinion of Douglas, J.). Moreover, the court below ignores

the equally fundamental principle that there can be no

search without a warrant and without probable cause unless

there is some compelling reason to do away with those re-

quirements. See Chimel v. ‘United States, 395 U.S. 7582

(1969); Terry v. Ohio, 392 U.S. 1 (1969); Sibron v. New

York, 392 U.S. 40 (1969). Where the search does not take

place at the border, but miles and hours away, there is no

necessity for a search without probable cause and without

a warrant.

: There is also no statutory authority which

the broad powers which the Ninth Circuit has given customs

agents. United States Code, Title 19, Section 482, as well

8

as the relevant

19 C.F.R. Section

to believe” that

19 C.F.R. Section 23.1,

ali sequise “reasonable couse

for search.

3. Review Should Be Available At This Time, Even .

nn. Below Is Not rr

Although the decision of the Ninth Circuit Court of |

Appeals is not in form a final judgment, it can and should

be reviewed at this time. There is an important and clear-

cut issue of law that is fundamental to the further conduct

of the case and which would otherwise, petitioners submit,

qualify as a basis for certiorari. Such u case may be review-

ed despite its interlocutory status. See United States v.

General Motors Corp., 323 U.S. 373, 377 (1945); Gillespie

v. United States Steel Corp., 379 U.S. 148, 153 (1964);

Land v. Dollar, 330 U.S. 731, 734 u. 2 (1947); Larson v.

Domestic & Foreign Commerce Corp., 337 U.S. 682 n. 3

(1949); R. Stern & E. Gressman, Supreme Court Practice,

Sec. 4.19 (4th ed. 1969). In the last two named cases the

Court reviewed decisions, such as that of the Court of -

Appeals in this case, reversing a ruling of a district court

which ended the litigation and remanding the case for trial.

_ While the Court has held that a pre-trial order sup-

pressing evidence is not final (Carroll v. United States, 354. «(>

U.S. 394 [1956] ), it has considered criminal cases where

the decision sought to be reviewed was not a final judg-

ment, even in cases coming from outside the federal courts.

Mills v. Alabama, 384 U.S. 214 (1965); California v. Stewart,

3864 U.S. 436, 498 n. 71 (1966).

‘Moreover, the Carroll decision involved an attempt by

=, =

the government to seek review of a district court order 8

suppressing evidence sought to be used against « defend

ant. The decision was based to a large extent on the prin-

ciple that “appeals by the government in criminal cases are

something unusual, exception and not favored” (354 U.S.

at 400 [emphasis added! ), “at least in part because they -

always threaten to offend the policy behind the double

jeopardy provision. . . ” (Will v. United States, 389 US.

90, 96 [1967] ).

These considerations behind the refusal to allow the

government to seek review in the circumstances of Carroll

thus clearly do not apply where it is the defendant who is

seeking review of the successful effort of the government

ro reverse a suppression order Indeed, one other consid-

eration militating against review by the government clearly

supports a defendant's desire to secure the decision of the

Court. As the Court said in Will, supra, I the l general

policy against piecemeal appeals takes on added weight in

criminal cases, where the defendant is entitled to a speedy

resolution of the charges against him (389 U.S. at 96).

See DiBella v. United States, 369 U.S. 121, 126 (1962).

It seems quite clear that to delay review by the Court until

after trial will not aid in the speedy resolution of the charges

against petitioners. ä

Finally, the increasing recognition given the necessity

of allowing such issues to be resolved finally prior to trial

should be noted. See, e.g, Cal.Pen.Code Sec. 1538. 5(i );

Mann v. Superior Court, ..... Cal.34 ..... (1970); A. L. I. dis-

— ete

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d

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CONCLUSION ; i

F

.

tiorari mould be granted. 3

4

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APPENDIX “A”

—

UNITED STATES COURT OF APPEALS

ron THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

vs. No. 25,120

LEE MARSHALL HARRIS and

MORRIS RAY CALDWELL,

Defendants-Appellees.

[July 27, 1970)

Appeal from the United States District Court

for the Eastern District of California

Before: KOELSCH and HUFSTEDLER, Circuit Judges,

and *THOMPSON, District Judge.

PER CURIAM:

482 (9th Cir. 1970); accordingly, the order of the district

Court suppressing the use of such drugs as evidence ii

Reversed.

r Bruce R. Thompson, United States District Judge, Reno, Nevada,

=

APPENDIX “B”

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

{Caption—Case No 25,120)

[August 28, 1970)

Before: KOELSCH and HUFSTEDLER, Circuit Judges, and

THOMPSON, District Judge.

The panel, as constituted in the above case, has voted to

deny defendants-appellees’ petition for rehearing and to reject

the suggestion for a rehearing in banc.

The full court has been advised of the suggestion for an,

in banc hearing, and no judge of the court has requested a vote

on the suggestion for réliearing in banc. (Fed. R. App. p. 35(b)).

The petition for rehearing is denied and the suggestion ~

for a rehearing in banc is rejected,

Additionally, defendants-appellees’ motion for a stay of

the mandate is denied.

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APPENDIX “C’’

Office of the Clerk 7

U. S. Court of Appeals

| P. O. Box $47

Sen Francisco, California 9410]

[August 23, 1970

Burton Marks, Esq.

9720 Wilshire Bivd.

Beverly Hills, Calif. 90212

Dear Sir:

The Petition for a Rehearing heretofore filed in Case

No. 25120 - USA v. LEE MARSHALL HARRIS &

MORRIS RAY CALDWELL was this day denied.

Pursuant to Rule 41(a) and unless stayed by the order

of the Court, a certified copy of the judgment of this Court

under said Rule will be due to issue on the expiration of

seven (7) days from the date hereof.

Sincerely,

Wm. B. Luck,

Clerk.

be

|, the undersigned, say | am and was at all times herein mentioned, 8 citizen of

the United States and employed in the County of Orange, State of California,

over the age of cightoon years and not s party to the within action or proceeding;

thet ;

My business address is 322 Street, Huntington Beach, Californie 97648,

thet on SEPTEMBER 9) | served the within PETITION FOR WRIT OF

CERTIORARI (iasrieCaldwell v. United Stetes) on the following named parties

by depositing the designated copies ‘hereol, enclosed in 2 sealed envelope with

postage thereon fully propaid, in the United States Post Office in the City of

Huntington Beach, California, addressed to said parties at the addresses 0s

follows:

UNITED STATES ATTORNEY

ron THE CENTRAL DISTRICT OF CALIFORNIA

12TH FLOOR

U. s. COURTHOUSE - Bi,

LOS ANGELES, CALIFORNIA 90012 (3 copies)

SOLICITOR GENERAL OF THE UNITED STATES

WASHINGTON, D. c. (1 copy)

U. s. COURT OF APPEALS FOR THE NINTH CIRCUIT

SEVENTH & MISSION STREETS

SAN FRANCISCO, CALIFORNIA (1 copy)

* I declare under penalty of perjury that the foregoing is true and comect.

Executed oh SEPTEMBER), 4970, at HUNTINGTON BEACH, CALIFORNIA.

Oa

aos | 5 fey

Dean St ndefer Co. , 322 Main Street, Huntington Beach, Ca.

. i (714) $36-7161

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