Opposition Brief — Lee Marshall Harris and Morris Ray Caldwell v. United States

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Yn the Supreme Court of the Wnited States

Oronnn TERM, 1970

No. 780

LEE MarsHaLL Harris AND Morris Ray CALDWELL,

PETITIONERS

v.

UnivTep States or AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

ATH COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals is reported at 427

F. 2d 1368,

JURISDICTION

The judgment of the court of appeals was entered

on July 27, 1970. A petition for rehearing was denied

on August 28, 1970. On September 28, the petition for

a writ of certiorari was filed. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether customs agents had authority to search a

vehicle believed to be carrying contraband at a loca-

tion approximately five blocks from the place where

408 -209-——-70 a)

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petitioners and the driver f the truck had been ar-

rested on probable. cause to believe they were involved

in smuggling.

STATEMENT

Petitioners are charged with smuggling marijuana

into the United States, in violation of 21 U.S.C.

176a and 18 U.S.C, 545. On September 25, 1969, the

United States District Court for the Central District of

California granted a motion to suppress evidence. On ap-

peal by the government, the court of appeals reversed

(Pet. App. A), holding that the evidence was ad-

missible; a request for rehearing en bane was denied

(Pet. App. B).“

The evidence on the motion to suppress showed that

the driver of a Ford pickup truck informed a cus-

toms agent that on July 28, 1969, he would enter the

United States from Mexico carrying contraband, On

that day, agents saw the Ford truck enter the San

Ysidro, California port of entry, followed closely by

one Velasquez in a separate vehicle, After both ve-

hicles had crossed the border they proceeded some

distance towards Los Angeles; Velasquez then became

the driver of the Ford truck (H. 32-35, 37). In Los

The government's appeal to the court of appeals was based

on 18 U.S.C, 3731, as amended by P. I. 90-351 of June 19, 1968,

82 Stat. 197, 257-238 (18 U.S.C. (Supp. V) 3731); it was not taken

under 18 U.S.C, 1404,

*A motion for a stay of the mandate of the court of appeals

was, on October 10, 1070, granted by Mr. Justice Douglas.

„H.“ refers to the transcript of the hearing held on the

motion to suppress. We are lodging a copy of this transcript

with the Clerk.

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Angeles, both petitioners, driving a Chevrolet, met

- Velasquez and led him to a driveway where the truck

was then parked, Velasquez joined petitioners and the

three drove away, About a minute later, approxi-

mately five blocks from where the Ford truck was

parked, customs agents stopped the Chevrolet and

arrested petitioners and Velasquez for smuggling

marijuana into the United States (II. 10-17, 38). The

arresting agents returned immediately to the truck

and pried loose a corner of the floor of the vehicle,

revealing n concealed plastic-wrapped parcel (H. 17).

At the hearing, it was stipulated “ * * that the tr uck

came across the border and it was under constant sur-

veillance up to the point where it was finally searched”

(J. 8-9),

The district court found that probable cause for

petitioners’ arrests existed (H. 48), but that under

Chimel v. California, 395 U.S. 752, the search of the

vehicle without a warrant was impermissible (H. 49).

In reversing the ruling of the district court, the

court of appeals relied upon its prior decision in

Castillo-Garcia v. United States, 424 F. 2d 482, which

Upheld, as a ‘border search’ not requiring probable

cause, the search of a vehicle believed to be carry -

Ing marijuana that had been under constant surveil-

lance from the time it crossed the border.

ARGUMENT

The search in this case was valid irrespective of the

issue of whether it could be justified as a border

search based on less than probable cause,

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There was here ample probable cause to believe that

the vehicle was carrying smuggled marihuana, The

original driver had said the truck would be carrying

marihuana; the conduct of petitioners and Valasquez

after the vehicle crossed the border served to confirm

that information and their connection with the smug-

gling. The case is thus governed by Chambers v.

Maroney, 399 U.S. 42, which holds that a warrant-

less search of a vehicle may be made on probable

cause to believe that it is carrying contraband, See

also Carroll v. United States, 267 U.S. 132.

Jongress has long given special authority to cus-

tums agents to exumine vehicles in transit in the

United States where there is ‘reasonable cause to sus-

pect” that the goods have been brought into this coun-

try contrary to law (see 19 U.S.C, 482 and 19 U.S.C.

1595(b)). On the facts of this case however, it is not

necessary to reach the question whether a vehicle, which

has been constantly observed after crossing the border,

may be searched, as at the border, on suspicion not

amounting to probable cause.

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CONCLUSION

For the foregoing reasons, it is respectfully sub-

mitted that the petition for a writ of certiorari should

be denied.

Erwin N. Giswonn,

Solicitor General,

Wu, Winsox,

Assistant Attorney General,

BEATRICE ROSENBERG,

Epwarb FENId,

Attorneys.

Ocronxn, 1970.

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© 5. GOVERNMENT PRINTING OFFICE. 1970