Petition for Writ of Certiorari — Barron v. United States

Supreme Court brief1973

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SUBJECT INDEX

bpinion Below

grounds on which the jurisdiction

lof this Court is invoked c

uestions prerented for review Cc

co titutional Provisions and

: Statutes involved F

, ons for granting the writ and

Eamplifying the same F

Btatenent of the Facts 1

Statement of the Case : §

. I

a EXCEPTION ALLOWING WARRANTLESS SEARCHES

pIDER 8 U.S.C. § 1357(a) AND DEFINED BY 7

EGULATION 8 C.F.R. § 287.1(a) (2) CONTRA- —

NES PROTECTIONS AFFORDED BY THE FOURTH

BENDMENT. 7

i./ No apparent principles do not apply with

the same force to searches of automobiles

for: smuggled aliens as they do to similar

searches for smuggled merchandise. The

trial court erred in basing its evidentis

ruling upon this distinction. 8

THERE WAS NO PROBABLE CAUSE TO JUSTIFY THE

DETENTION OR SEARCH OF APPELLANT's VEHICLE

AT SAN CLEMENTE. 16

A./ There is no rational justification for

allowing 8 U.S.C. §1357(a) to serve as

a blanket exception to the Fourth Amend

ment requirement of probable cause.

B./ The fact that Petitioner did not stop

in the area indicated by the agents

but instead proceeded through the check

point, is not relevant to whether the

officers had probable cause to search.

III

THIS COURT MUST IN ACCORD WITH ITS CONSTI-_

BLEED THROUGH si calito

——

TIONAL DUTY TO ANNUL STATUTES AND REGULATIONS

MOLATIVE OF THE CONSTITUTION STRIKE DOWN

mIs UNWARRANTED GOVERNMENTAL BID FOR LEBEN-

sRAUM AS IMPLEMENTED BY GOVERNMENTAL REGULA-

(IONS RESCINDING THE SEARCH AND SEIZURE

RIGHTS OF OUR CITIZENS, DENYING THEM

EQUAL PROTECTION OF THE LAWS, ABRIDGING

THEIR RIGHT TO TRAVEL, COMPRESSING THEM INTO

{HE REFUGE OF MIDDLE AMERICA, DETERRING LAW

ABIDING MIDDLE AMERICANS FROM SEEKING EMPLOY-

WENT OR ENJOYING VACATIONS NEAR OUR NATION'S

BOUNDARIES, AND OBSTRUCTING FREEDOM OF INTER-.

STATE. COMMERCE. 28

CONCLUSION 41

APPENDIX "A" 42.

APPENDIX "B" + 44

APPENDIX cre 47

INDEX TO APPENDIX

PPENDIX "A" 42:

APPENDIX "B"- Opinion of the Court 44.

EE EE EEE ET TET TT Tee ye

ii-b

COPY BCUND TOO CLOSE IN CENTER '

APPENDIX "C" -— Judgment of the Court

DElOW. cccccceccccecscccesesessesessssodf

TABLE OF OF AUTHORITIES

wtheker Vv. Secretary of State 35, 37

HE U.S. 500, 64S. Ct. 1659

(1964)

padillo v. Superior Court

Te cal. 20 269, 294 P.2d

23 (1956) 27

Boyd v. United States

cB. CSe 524 (1886) 29

Carroll v. United States

767 U.S- 132, 45 S. Ct. 280

(1925) ids 32

Cervantes v. United States

3 F. 2d 800 (9th Cir. 1959) 9,1¢,12,13,

14,17,31

Chimel v. California

395 U.S. 752, 89 S. Ct. 2034

(1969) 21

Coolidge v. New Hampshire

03 U.S. 443, 91S. Ct. =

2022 (1971) 19,23

Douglas v.”California

372 U.S- 353, SS Be Cte

814 (1963) 34

Edwards v. California

314. U.S. 160, 62 5. ct. 164 (1941) 37

Gallik v. Superior Court of

Santa Clara County

5. Cal. App. 34 662, 97 Cal. Rptr.

693 (1971) 22

169 Cal. App. 2d 356, 337

p. 2d 20,. (1959)

' Heart of Atlanta Motel, Inc. —

v. United States

2: ee

379 U.S. 241, 85 &. Ct. 348 (1964) 40

' Henderson v. United States

390 F.2d 805 (9th Cir. 1967)

Hirabayashi v. United States

320 U.S. 81, 63 S. Ct. 1375

(1943)

Katz v. United States

389 U.S. 347, 88 S. Ct.

507 (1967)

Kent v. Dulles

sar Gils 282 Fe 8. Che

113 (1958)

Korematsu v. United States

325 Use cat, GD Be Gts AFe

(1944)

Landau v. United States

82 F.2d 285 (2nd Cir.)

Marbury v. Madison

I CRANCH 137 (1804)

' McLaughlin v. Florida

9 Ue oe 84, 85 ap od JF

283 (1964)

‘ Mozzetti v. Superior Court

4 Cal. App. 3d 699, 94 Cal.

Rptr. 412(1972)

il BEE ts Al POOR COPY

8,37

_—

passenger Cases ©

THow. 2¢3, 492, 12

L. Ed. 702 (1849)

Peo le Ve Cassel

73 Cal App. 3d 715,

100 Cal. Rptr. 520 (1972)

718 Cal. App. 2d 213,

32 Cal. Rptr. 246 (1963)

People v. Gale .

Te Cal. 2d 2 3, 294

p. 2d 13 (1956)

People v. Cedeno

People v. Harve

Cal. App. mt 728, 299

p.2d 310 (1956)

People v. Heredia

7) Cal. App. 3d 194,

97 Cal. Rptr. 488 (1971)

People v. Koehn

02 Cal. Rptr. 102 (1972)

People v. Shelton

60 Cal. 2a 740, (1964)

People v. Superior Court

(Kiefer), 3 Cal. 3d 807,

9] Cal. Rptr 729 (1970)

People v. Williams

20 Cal. App. 3d 590, 97

Cal. Rptr. 815 (1971)

Shapiro v. Thompson

394 U.S. 618, 89 S. Ct.

1322 (1969)

21, 23

20, 26

CORY ROIIND THO CI OCF IN CENTER

Skinner v. Oklahoma

316 U.S. 535, 62 Ss. Ct.

110 (1942)

’ Tompkins v. Su erior Court

59 Cal. 2d 65 tLSE3}

United States Ws Almeida-Sanchez

452 F.2a 459 (1971)

United States v. Guest

383 U.S. 745, 86 S. Ct.

1175 (1966)

United States v. Haith

" 65 (4th Cir. 1961)

cert. den. 369 U.S. 804, 82

S. Ct. 643

United States v. Hortze

179 F. Supp. 913 (1959)

United States v. Lee Ngee How

105 F. Supp. 517

United States v. Walker

307 F.20g 250 (4th Cir.

1962)

United States v. Wilson

159 F. Supp. 149 (D.C.

Ala. 1957) cert. den. 358 U.S.

865, 79 S. Ct. 97

Virgil v. Su ersor Court

268 Cal. App.

Cal. Rptr 793 (1968).

‘Von Moltke v. Gillies ;

332, U-s. 78, 68 BS. Ct.

316

14, 15, 30

wong Sun v.. United States

371 U.S. 483, 83 S. Ct. 407

(1963)

seniel v. Rusk

381 U.S. 1 85 Ss. Ct.

1271 (1965)

35, 37

' CONSTITUTION AND STATUTES

8 U.S.C. Sec. 1357 (a) 7,9,18,19

24,30,33

8 C.F. RR. 287.1(a) (2) 7, 30, 33

19 U.S.C.A. Sec. 482 31

United States Fourth Amendment 7,8,15,24

United States Fourteenth Amendment 15

IN THE

SUPREME. COURT OF THE — —

Noo ccccccct

RICARDO PABLO BARRON,

Petitioner,

vs.

‘UWITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO ©

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Petitioner, Ricardo Pablo Barron,

respectfully prays for a Writ of Certiorari :

to the United States Court of Appeals for

the Ninth Circuit to review its judgment

affirming a judgment of the United States

District Court for the Southern District of

California, sentencing petitioner to five

years imprisonment.

This: case squarely presents the issue

of the right of immigration: officers: to searc

‘@ vehicle at a border checkpoint, the same -

issue before this Court in Condrado Almeida-

Sanchez v. United States of ‘America (No.

71-6278). This counsel has filed an Amicus

‘Curiae brief in support of the Petitioner

in that case. Moreover, the checkpoint in

the present case was 67 miles from the

Mexican border and on the major north-south

highway in California and the West Coast.

Finally, the arguments in this case, (see

Argument III) transcend and are different

than those presented in the briefs for

Petitioner and Respondent in Almeida-

Sanchez and should be evaluated before the

- legitimacy of the border-checkpoint inquiry-

is determined.

POOR COPY

—— Ol cCr lO eee

OPINION BELOW

Trial in the Federal District Court was

by Court.

The opinion of the Court below is appended

hereto as Appendix "B" and is also found in

the Clerk's Record of the Circuit Court.

The opinion of the Court below is as yet not

reported. The judgment of the Court below

is appended hereto as Appendix *c*. A Copy

thereof also appears in the clerk's transcript

from the Circuit Court. ;

GROUNDS ON WHICH THE JURISDICTION OF

THIS COURT IS INVOKED

The date of the judgment sought to be

reviewed and the time of its entry is

January 29, 1973 (R.C.A. Judgment).

The statutory provision believed to

confer on this court jurisdiction to review

the judgment in question by Writ of Certiorari

is 28 U.S.C. 1254(1).

' QUESTIONS PRESENTED FOR REVIEW

COPY BCUND TOO CLOSE IN CENTER

THE EXCEPTION ALLOWING WARRANTLESS SEARCHES

UNDER 8 U.S.C. § 1357(a) AND DEFINED BY

REGULATION 8 C.F.R. § 287.1(a) (2) CONTRAVENES

PROTECTIONS AFFORDED BY THE FOURTH AMENDMENT.

A./ No apparent reason exists why fourth

amendment principles do not apply with

the same force to searches of automobiles

for smuggled aliens as they do to similar

searches for smuggled merchandise. The

trial court erred in basing its evidentian

ruling upon this distinction.

It |

THERE WAS NO PROBABLE CAUSE TO JUSTIFY THE

DETENTION OR SEARCH OF APPELLANT'S VEHICLE

AT SAN CLEMENTE.

A./ There is. no rational justification for .

allowing 8.U.S.C. § 1357(a) to serve

as a blanket exception to the Fourth

Amendment requirement of probable cause.

B./ The fact that Petitioner did not stop

—

in the area indicated by the agents,, but

instead proceeded through the Checkpoint,

is not relevant to whether the officers

had probable cause to search.

Tit

THIS COURT MUST IN ACCORD WITH ITS CONSTI-

TUTIONAL DUTY TO ANNUL STATUTES AND REGULA-

TIONS VIOLATIVE OF THE CONSTITUTION STRIKE

DOWN THIS UNWARRANTED GOVERNMENT BID FOR

_ LEBENSRAUM AS IMPLEMENTED BY GOVERNMENTAL

REGULATIONS RESCINDING THE SEARCH AND SEIZURE

RIGHTS OF OUR CITIZENS DENYING THEM EQUAL

PROTECTION OF THE LAWS, ABRIDGING THEIR

RIGHT TO TRAVEL, COMPRESSING THEM INTO THE

REFUGE OF MIDDLE AMERICA, DETERRING LAW

ABIDING MIDDLE AMERICANS FROM SEEKING EMPLOY-

MENT OR ENJOYING VACATIONS NEAR OUR NATION'S .

BOUNDARIES, AND OBSTRUCTING FREEDOM OF INTER-

STATE COMMERCE.

- CONSTITUTIONAL PROVISIONS AND STATUTES

INVOLVED

Involved are the First, Fourth, Fifth,

and Ninth Amendments to the United States

Constitution, 21 U.S.C. 84l(a), 8 U.S.C.

1357(a) and 8 C.F.R. 287.1(a) (2).

‘ REASONS FOR GRANTING THE WRIT

AND AMPLIFYING THE SAME

THE EXCEPTION ALLOWING WARRANTLESS SEARCHES

UNDER 8 U.S.C. § 1357(a) AND DEFINED BY

REGULATION 8 Cc. F.R. § 287.1(a) (2) CONTRAVENES

PROTECTIONS AFFORDED BY THE ‘FOURTH AMENDMENT.

A./ No apparent reason exists why fourth

amendment principles do not apply with

.the same force to searches of automobiles

for smuggled aliens as they do to ne

similar searches for smuggled Gatcvaaitle

The trial court erred in basing its

evidentiary ruling upon this distinction.

BLEED THROUGH ” *

THERE WAS NO PROBABLE CAUSE TO JUSTIFY THE

DETENTION OR SEARCH OF APPELLANT'S VEHICLE

AT SAN CLEMENTE.

“A./ There is no rational justification for

allowing 8 U.S.C. § 1357(a) to serve

as a blanket exception to the Fourth

Amendment requirement of probable

cause.

The fact that Petitioner did not stop

in the area indicated by the agents, but

instead proceeded through the checkpoint

is not relevant to whether the officers

had probable cause to search.

-IIt

THIS COURT MUST IN ACCORD WITH ITS CONSTI-

TUTIONAL DUTY TO ANNUL STATUTES AND REGULA-

TIONS VIOLATIVE OF THE CONSTITUTION STRIKE:

DOWN THIS UNWARRANTED GOVERNMENT BID FOR’

LEBENSRAUM AS IMPLEMENTED BY GOVERNMENTAL |

REGULATIONS RESCINDING THE SEARCH AND SEIZURE

COPY BOUND TOO CLOSE IN CENTER '

—

RIGHTS OF OUR CITIZENS DENYING THEM EQUAL

PROTECTION OF THE LAWS, ABRIDGING THEIR

RIGHT TO TRAVEL, COMPRESSING THEM INTO THE

REFUGE OF MIDDLE AMERICA, DETERRING LAW

ABIDING MIDDLE AMERICANS FROM SEEKING EMPLOY-

MENT OF ENJOYING VACATIONS NEAR OUR NATION'S

BOUNDARIES, AND OBSTRUCTING FREEDOM OF INTER-

STATE COMMERCE.

STATEMENT OF FACTS

The first witness for the Government

was border patrol agent, John Bagley [R.T.

6]. He testified that the San Clemente

checkpoint was 67 miles north of the Mexican-

American border. Petitioner Barron drove his

car into the number 2 lane and stopped at the

stopsign. Agent Bagley then told him to

pull over to the right. He indicated this

also with his flashlight pointing the way.

Petitioner crept forward, changed lanes and

continued through the checkpoint: Agent

Bagley never explained the purpose of

Barron pulling to the right of the road - so

that his car could be examined for aliens

for example [R.T. 6-9].

On cross-examination, Agent Bagley

stated that there were four lanes of

traffic northbound in the area where he

worked, but that two of the lanes were

Channeled off at the time. The highway

ean

involved was Highway 101, or Interstate 5,

one of the major arteries north from San

Diego toward Los Angeles [R.T. 9-11].

The Government's second witness was

Robert Anaya, another border patrol agent

[R.T 11-12]. On August 15, 1971, he was |

stationed at San Clemente, north of Oceansi,

He observed a 1963 black Oldsmobile with

California license plate IUK 131 at about

1:40 A.M. The car stopped at the stop sign,

was ordered to the secondary inspection

station and sped away north. Agent Anaya

jumped into the customs vehicle kept for the

purpose of chasing vehicles which fail to

stop. Anaya turned on his red lights, put

on the siren and his high beams. One half

mile to the north, Barron stopped his car,

jumped out and ran over into the bush

[R.T. 12-14].

Apparently the car driven by Barron

began to move by itself causing Agent

Anaya to chase it, back it up and park it.

Anaya testified that he smelled a very strong

ordor Of marijuana at that time. He had

} smelled marijuana on several previous

occasions [R.T. 14-16]. Agent Holman dis-

covered the Petitionercrouched in a ditch

d@ perhaps 50 yards south of the car. Agent

Anaya, upon observingPetitioner lying face

down in the dirt, placed Barron's hands

#Jbehind his back and handcuffed him. Barron

then accompanied Anaya to the customs vehicle

and Anaya then advised Petitionerof his

rights [R.T. 16-17]. The Petitioner was

then driven back to the office and checked

for weapons [R.T. 17]. The handcuffs

were removed and a search of Petitioner

See Se ee

pockets produced a key ring. Petitioner

had previously denied having a key for the

trunk. Agent Anaya claimed that he was

going to look for aliens at that time

[R.T. 18]. Anaya saw what appeared to be

a trunk key, gave-it to Agent Cotinas and he

opened the trunk [R.T. 18].

On cross-examination, Agent Anaya

denied that having smelled marijuana, he

going to search the trunk to see if mari-

juana was stored therein. He further

conceded that aliens don't smell like

marijuana [R.T.19].

The Government's final witness was

Agent John Holman of the U.S. Border

Patrol, San Clemente, California ([R.T.20].

His first contact with the case was hearing

a call over the radio and squealing tires,

Agent Holman then climbed into a ‘pursuit

car which wouldn't start. He ran

approximately 300 yards north on foot due

to the activity there. He discovered

Petitioner in the bushes [R.T. 21]. Agnet

Holman drove Barron's vehicle back to the

office and during the trip detected the

odor of marijuana inside the car. His eyes

watered and his nose became irritated.

POOR COPY

=e Se]. eee eee cert eee

The Odor was strong. Because the car was

warm inside, it was "like being hit with a

cloud of smoke, the odor and feeling." [R.T.;

22]. Agent Ravinas [sic] opened the trunk

to the vehicle in the presence of Agent

Holman. Marijuana brinks were discovered

in the trunk [R.T.23]. The Prosecution

rested [R.T.24]. The motion to suppress the

evidence was then argued and denied.

{R.T. 24-29] .

CORY ROLIND TOO CI OCE IN CENTER ;

STATEMENT OF THE CASE

On August 25, 1971, an indictment was

filed in the Federal District Court for the

Southern District of California accusing

Petitioner, RICARDO PABLO BARRON, in Count

One with a violation of 21 U.S.C. §§952, 969

and 963 (illegal importation of a controlled

substance) and in Count Two with 21 U.S.c.

§84l1(a) (1) (Possession of a Controlled

Substance with Intent to Distribute) [c.17.

1-2]. The Petitioner was arraigned and en-

tered a plea of not guilty [C.T.6].

On November 8, 1971, a Motion to Sup-

press the evidence under Rule 41(e) of the

Federal Rules of Criminal Procedure was

heard and denied [C.T.25]. On February 22,

1972, Petitioner submitted his cause before

the Honorable J. Clifford Wallace, Federal

District Judge, and was found guilty of

Count Two of the indictment. Count One was

dismissed [C.T.28]. The case was continued

for a presentence report to March 27, 1972,

at which time Petitioner was sentenced to

a term of five years imprisonment -' the maxi-

mum allowable under the statute [C.T.30]. A

Notice of Appeal was timely filed and Peti-

tioner was permitted to remain at liberty

on appeal on a $25,000 personal surety bond.

[C.T. 30-33]

On January 29, 1973, the Ninth Circuit

Court of Appeals affirmed the judgment.

This Petition is timely filed and this Court

has jurisdiction by virtue of Title 28 U:S.C.

1254 (1).

THE EXCEPTION ALLOWING WARRANTLESS SEARCHES

WITHOUT PROBABLE CAUSE UNDER 8 UNITED STATES

CODE § 1357 (a) AND DEFINED BY REGULATION

8 C.F.R. § 287.1(a) (2) CONTRAVENES PROTECTION

AFFORDED BY THE FOURTH AMENDMENT.

We are faced with a rule in the United States

9th Circuit Court of Appeals, which stands

COPY ROLIND TOO CLOSE IN CENTER ®

in conspicuous opposition to the consti-

wiktienk protections generally provided by

the Fourth Amendment. Those protections

threatened by this rule are based on probab]

cause, are "...per ‘se unreasonable under the

Fourth Amendment, subject only to a few |

specifically established and well delineateg

exceptions" (Katz v. United States, 389

United States 347, 357, 88 S.CT. 507, 514,

[1967]). The exception challenged here is

not well delineated, nor have the cases

demonstrated any rational grounds behind

its establishment.

A. NO APPARANT REASON EXISTS WHY

FOURTH AMENDMENT PRINCIPLES DO NOT

APPLY WITH THE SAME FORCE TO

SEARCHES OF AUTOMOBILES FOR SMUGGLED

ALIENS AS THEY DO TO SIMILAR

SEARCHES FOR SMUGGLED MERCHANDISE.

THE TRIAL COURT ERRED IN BASING

ITS EVIDENTIARY RULING UPON THIS

DISTINCTION.

POOR COPY

Petitioner contends that absent any showing

that an international boundary was crossed,

or that Petitioner was under surveillance,

the search without probable cause was not,

and cannot be legitimized as a border search.

Under the authority of 8 U.S.C. 1357,

Immigration and Naturalization Service offi-

cers have the right to search automobiles for

illegal aliens within a reasonable distance

of an international border to prevent the

illegal entry of aliens provided there is

probable cause for so doing. Cervantes v.

United States, 263 F.2d 800 (9th Cir. 1959).

However, once it has been established that

a individual has previously crossed an inter-

national border and is not presently under

surveillance or pursuit, a search conducted

seventy miles from the Mexican border, as

in the case at bar, does not constitute a

border search and is not justified absent

probable cause. Thus, the Ninth Circuit

COPY BOUND TOO CLOSE IN CENTER '

Court of Appeals has held that the search

of an automobile seventy miles from the

nearest port of entry cannot be justified as

a border search but must be Supported by

probable cause. Cervantes v. United States,

Supra. In the Cervantes case, a Federal

customs investigator for the United States

Customs Service had received information on

two occasions from an informant describing the

defendant and his several entries into

Mexico for purchases of narcotics. Moreover,

the investigator observed the defendant and

his vehicle in Tijuana, Mexico, and, after

checking defendant's license number,

determined that the defendant had previous

narcotics convictions, including one for

unlawful transportation of narcotics into

the United States. This information was

given to border inspectors and the investi-

gator requested that the automobile and its

occupants be thoroughly searched. On that

POOR COPY

——— = ll lO ae a

same date, defendant crossed the international

border at Tijuana without being searched by

the border inspectors and peieaiiiiineds weet on

U.S. 101 toward Los Angeles. Federal Immi-

gration agents at San Clemente, being in

possession of the aforedescribed information,

stopped the defendant and, after searching

the defendant and the vehicle, arrested him

for importing, transporting and concealing

narcotics. The Ninth Circuit, in reversing

defendant's conviction for lack of probable

cause to stop and search defendant's vehicle

at San Clemente, included the following re-

marks in a foot note regarding the Govern-

ment's contention that the court could sustain

the search as a border search:

"An authorized federal border official

May, upon unsupported suspicion, stop and

search persons and their vehicles entering

this country. 19 U.S.C.A. Sec. 482.

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

—— ee, Se ee ee a a ee 0 me ie =

—_

at pages 153-154, 45 S.Ct. at page oe...

' But after ‘entry has been Completed ; a search

and ‘seizure can be made ‘only on ‘a ‘showing

of probable cause. Landau v. United States, -

2 Cr., 82 F.2d 285, 286; United States v.

Lee Ngee How, D.C. 105 F. Supp. 517, 523.

The record does not reveal the elapsed time

between Cervantes’ re-entry into the United

States on December 8, 1955, and his arrest

at San Clemente. However, we take judicial

notice of the fact that San Clemente is

more than seventy miles from the nearest

port of entry from Mexico. There is no

indication in the record that Cervantes

had stopped at San Clemente in connection

with a pursuit. Insofar as the record reveals,

therefore, his entry had been completed

prior to the time he reached San Clemente,

and the government does not contend otherwise.’

‘Cervantes v. United States, 263 F.2d 800,

803, n.5. [Emphasis added.]

POOR COPY

—=—sit ee. ere eee eer et eee

—_—

It is submitted that in the case at bar, the

factual circumstances surrounding petitioner's

detention and the search of his vehicle at

San Clemente demonstrate that the grounds

for searching the vehicle driven by the

petitioner are far more tenuous than those

in the Cervantes decision and that, therefore,

absent independent probable cause for

detaining and searching defendant's vehicle,

and evidence sought to be introduced be

suppressed as not incident to a valid

international border search. See, also,

United States v. Hortze, 179 F. Supp. 913,

918 (D.C. Calif. 1959). To conclude

otherwise, not only the petitioner, but all

residents of San Diego, or indeed, visitors

who travel northbound to other parts of

California would by virtue of travelling

on Interstate Highway 101, surrender their

Constitutional protection against unreason-

able searches and seizures; and this is true

whether or not the persons involved ever

PREV DPRMIIAIN +TrTAM err ACeLe IAL COCC ATCO

crossed the border. Petitioner did not!

Such an argument is certainly fatuous and

invalid.

Respondnet in his trial brief in

Opposition to our earlier motion to suppress

-unctuously stated: "Defendant in his moving

brief has confused the different rules for

searches for contraband and searches for

aliens in his attempt to graft the probable

cause standards of the narcotics cases

(Cervantes) onto the rules justifying immi-

gration inspections."

Justice Browning, in his dissenting opinion

in Almeida-Sanchez, vehemently shares our

continuing "confusion."

"If a reason exists for distinguishing

searches for aliens from searches for

merchandise, no one - pane tive this court-

has yet suggested what it might be. Nothing

in the words of the Constitution supports

the distinction, and no one suggests that.

the public interest in excluding inadmissibl

POOR COPY |

~~ s ae l h e Oee e

aliens is greater than that in excluding

narcotics and other contraband". U.S. v.

Almeida-Sanchez, 452 F. 2d 459 (1971)

We therefore, continue to assert the

applicability of Fourth Amendment protections

to the present case, despite the absurd

application of 8 U.S.C. § 1357 (a) which

threatens to deny those protections. If

the rational distinction which Judge Browning

as well as petitioner fail to find, exists,

we demand to know what it is before

petitioner abandons the assertion of rights

Constitutionally protected by the Fourth

Amendment. *

* The trial record clearly discloses that not

even the trial judge believed the search of

the vehicle driven by petitioner, was aimed

COPY BOUND TOO CLOSE IN CENTER '

at the discovery of aliens. He declared,

",..LT don't think, when they looked in the

car in the trunk, they were looking for

aliens,..." (R.T.. 29)

THERE WAS NO PROBABLE CAUSE TO JUSTIFY

THE DETENTION OR SEARCH OF PETITIONER'S

VEHICLE AT SAN CLEMENTE.

The only reason given by the Federal

Immigration Agents for detaining petitioner

indicating their intention to search his

vehicle without first procuring a: search

warrant, was their observation that the

rear of his vehicle appeared to be riding

lower than the front of his vehicle. This

observation, absent sufficient additional

information, such as knowledge of prior

criminal activity of an individual or

reliable information that he is engaged in

illegal activity, does not constitute probable

cause for searching the vehicle. First,

unlike in United States v. Haith, 297 F. 65

82 S. Ct. 643, and United States v. Wilson,

159 F. Supp... 149 (D.C. Ala. 1957), cert. den.

358 U.S. 865, 79 S. Ct. 97, the Federal

Immigration Agents in the case at bar, had

no knowledge or information pertaining to

petitioner's reputation, nor did they smell

any odor emanating from his vehicle suffi-

cient to justify their search. Second,

unlike in United States v. Walker 307 F.2d

250 (4th Cir. 1962), the agents had had no

previous observations of the petitioner

engaged in illegal activity, nor did they

have any reliable information from an infor-

mant linking Barron with illegal activity.

As discussed in Part IA, supra, far

more compelling. arguments in Cervantes than .

are present in petitioner's case, were ruled

insufficient to establish probable cause.

(See also, People v. Gale, 46 Cal 2d 253,

294 P. 2d 13 (1956) (damage to vehicle

insufficient justification for border

search of vehicle leaving the United

States.)

In fact, the question of whether

probable cause existed which would justify

the detention and threatened search, is of

no moment here since the Trial Judge vali-

dated the agent's authority under this Court's

decisions permitting unrestricted searches

of automobiles at border checkpoints.

(R.T. 29)

A./ THERE IS NO RATIONAL JUSTIFICATION

FOR ALLOWING 8 U.S.C. § 1357 (a) TO

SERVE AS A BLANKET EXCEPTION TO THE

FOURTH AMENDMENT REQUIREMENT OF

PROBABLE CAUSE.

In further stressing the absurdity of

8 U.S.C. § 1357 (a) which allows warrantless

searches without probable cause, petitioner

urges the court to note that the judicial

trend is in the opposite direction, ie.,

toward a narrowing of exceptions which allow

warrantless searches toward strict enforce-

ment of the probable cause requirement, and

to a narrowing of the scope of searches

to eliminate the obtrusive "exploratory"

search.

For example, Coolidge v. New Hampshire,

(1971) 403 U.S. 443, 91S. Ct. 2022, limited

the Chambers rule which allowed warrantless

searches of vehicles (with probable cause)

in motion when seized. This undeniably

represents the court's wish to limit the

exception of the "movable auto" exigency.

Yet, under 8 U.S.C. § 1357, and under the

guise of a search for "aliens", any auto

within 100 miles of an external boundary

could be searched without a warrant in

possible violation of Coolidge, and without

probable cause in violation of the Supreme

Court mandate in both Coolidge and Chambers.

Section 1357 potentially renders such cases

meaningless.

Further, the probable cause requirement

has been held subject to limitations dictated

by alleged criminal activity, and by the

"reasonable" expectations of the officers ©

under the circumstances. In People v.

Superior Court (Kiefer), 3 Cal. 3d 807,

91 Cal. Rptr. 729 (1970), the Court stated

that even when there is probable cause to

arrest, a search for weapons must remain

“reasonable in scope”.

"Just as the arresting officer in an

ordinary traffic violation case

cannot reasonably expect to find

contraband in the offender's vehicle,

so also he cannot expect to find

weapons ... would likewise constitute.

an ‘intolerable and unreasonable’

intrusion into the privacy of the

vast majority of peaceable citizens

—

who travel by automobile. It follows

that a warrantless search for contraband

must be predicated...on specific

facts or circumstance giving the 7

officer reasonable grounds to believe

that such weapons are present in the

vehicle he. has stopped." [3 Cal. 3rd

at 829, 91 Cal. Rptr. at 744.]

Indeed, very recently in California,

the limitation of scope of search incidental

to arrest articulated in Chimel v. Calif.

(1969) 395 U.S. 752, 89 S. Ct. 2034 has been

applied to searches of iabibihtne. ;

(People v. Koehn, 102 Cal Rptr. 102 May 1972).

These decisions dictate that a search

without a warrant can be conducted in a

non-emergency situation, only if the search

coincides with a lawful arrest or detention.

and is restricted to the arrestee's person

or area "within his immediate control

(395 U.S. at 762-2). Yet, under § 1357,

no warrant is required, no probable cause,

no lawful arrest and no restriction of

scope of search. One has only to "look

for" aliens, and the Fourth Amendment pro-

tections supported by the above decisional

law vanish.

Other cases have limited the use of

"furtive gestures" as a basis for probable

cause to search. (Gallik v. Superior Court

of Santa Clara County, 5 Cal. App. 3d 862,

97 Cal Rptr. 693 (1971); People v. Cassel,

23 Cal App 3d 715, 100 Cal Rptr, 520 (1972),

People v. Williams, 20 Cal App. 3d 590, 97

Cal. Rptr. 815 (1971)). That limitation

is meaningless if the probable cause anit

ment is abandoned.

Finally, the courts in California have

tried to put a halt to the more obvious

abuses of the authority of the police to

"inventory" the contents of automobiles

lawfully in their custody pursuant to the

removal and storage provisions of the

vehicle code. [Mozzetti v. Superior Court,

4 Cal App. 3d 699, 94 Cal. Rptr. 412 (1971);

see also, People v. Heredia, 20 Cal. App.

3d 194, 97 Cal. Rptr. 488 (1971) [Mozzetti

rule not merely prospective in effect];

Virgil v. Superior Court, 268 Cal. App.

24 127, 73 Cal. Rptr. 793 (1968).]

In Mozzetti, there was no arrest, nor

probable cause. The court saw no rational

grounds for diluting Fourth Amendment pro-.

tection namely for "inventory" purposes.

The court in Koehn, quoted the following

from Justice Stewart's opinion in Coolidge:

...the word 'automobile' is not a

talisman in whose presence the Fourth

Amendment fades away and disappears.

(Coolidge v. New Hampshire, supra,

91S. Ct. 2022, 2035)

Followine Mozzetti, the word “inventory”

may no longer serve as the catalyst

disintegrating the Fourth Amendment

protections. Unfortunately, one such "talis.

man" remains: the word "alien".

Petitioner strongly denies existence of any

rationale for this exception. He rightfully

demands an explanation before he submits to

what can now only be termed a blatant dis-

regard of his Fourth Amendment rights under

the constitutionally invalid mandate of

8 U.S.C. § 1357.*

* The Ninth Circuit Court of Appeals has

itself made inroads on the Carte Blanche

justification for even border searches.

See Henderson v. United States (9th Cir.

1967), 390 F.2d 805. (probable cause

essential to support search of body cavities).

-B./ THE FACT THAT PETITIONER DID NOT

STOP IN THE AREA INDICATED BY THE

AGENTS, BUT PROCEEDED THROUGH THE

BLOCKADE, IS NOT RELEVANT TO

WHETHER THE OFFICERS HAD PROBABLE

CAUSE TO SEARCH.

The cases are numerous which hold that

if an officer threatens to arrest or search

at a time when he has no legal right to do

so, and this engenders a response in the

suspect, such as discarding contraband or

acting furtively, that conduct so engendered

is not usable in establishing probable cause

for a search or arrest. Wong Sun v. United

States, 371 U.S. 483 S. Ct. 407 (1963);

People v. Cedeno, 218 Cal. App. 2d 213, 32

Cal. Rptr. 246 (1963). In Wong Sun v.

‘United States, 371 U.S. 477, 483, n.10,

the United States Supreme Court opined:

",..we have consistently doubted the

probative value in criminal trials of

of evidence that the accused fled

the scene of an actual or supposed

crime.....it is not universally true

that a man who is conscious that he has

done a wrong, 'will pursue a certain

course not in harmony with the conduct

of a man who is conscious of having done

an act which is innocent, right, and

proper’, since it is a matter of

common knowledge that men who are

entirely innocent do sometimes fly

from the scene of a crime through fear

of being apprehended as guilty parties,

or from an unwillingness to appear as

witnesses. Nor is it true as an accepted

axiom of criminal law that 'the wicked

flee when no man pursueth, but the

rightous are as bold as a lion.'"

Accord, People v. Superior Court (Kiefer) ,

Supra; People v. Shelton 60 Cal. 24 740, 747

(1964); Tompkins v. Superior Court, 59 Cal.

2d 65, 68 (1963): Badillo v. Superior

‘Court, 46 Cal. 24 269, 294 P.2a 23 (1956);

Gascon v. Superior Court, 169 Cal. App.

2d 356, 337 P.2d 201 (1959); People v.

“Harvey, 142 Cal. App.2d 728, 299 P.2da 310

(1956).

IIL.

THIS COURT MUST IN ACCORD WITH ITS CONSTI-

TUTIONAL DUTY TO ANNUL STATUTES AND REGULA-

TIONS VIOLATIVE OF THE CONSTITUTION STRIKE

DOWN THIS UNWARRANTED GOVERNMENTAL BID FOR

LEBENSRAUM AS IMPLEMENTED BY GOVERNMENTAL

REGULATIONS RESCINDING THE SEARCH SEIZURE

RIGHTS. OF OUR CITIZENS, DENYING THEM EQUAL

PROTECTION OF THE LAWS, ABRIDGING THEIR

RIGHT TO TRAVEL, COMPRESSING THEM INTO THE

REFUGE OF MIDDLE AMERICA, DETERRING LAW

ABIDING MIDDLE AMERICANS FROM SEEKING EMPLOY:

MENT OR ENJOYING VACATIONS NEAR OUR NATION'S

BOUNDARIES, AND OBSTRUCTING FREEDOM OF

INTERSTATE COMMERCE.

It has been clear since Marbury v.

Madison, 1 CRANCH 137 (1804) that Congress

can neither make nor enforce a law, rule,

or regulation which is counter to the

United States Constitution. This principle

is the bedrock of our form of government,

_—

yet Congress and State legislatures and

Administrative agencies, have sometimes

overstepped the bounds of our Constitution.

It is the Judiciary's duty to be watchful

for citizen's constitutional rights.

Boyd v. United States, 116 U.S. 616, 6

S. Ct. 524 (1886). When a person brings

a proper case complaining of infringements

of constitutional rights, the judicial

branch of our Government must ascertain the

validity of suspect laws passed by our

legislative bodies, and at least as great

a duty exists when administratively passed

regulations are challenged. Individuals

must be protected from both willful and

unwitting encroachment upon their consti-

tutional rights. "This duty cannot be

discharged as though it were a mere

procedural formality." Von Moltke v.

Gillies 332 U.S. 78, 68 S. Ct. 316. It

must be thoroughly and thoughtfully

considered. Here, by the stroke of a

pen, the Government has eliminated Fourth

Amendment protections for a majority of our

200 million citizens. (See Appendix A).

One of the laws here in question, 8 U.S.C,

1357 (a), allows searches of vessels and ve-

hicles for aliens with no need of obtaining

a search warrant and without even probable

cause, as long as within a "reasonable dis-

tance" of an external boundary. Implementing

this law is 8 C.F.R. 287.1(a) (2), which

defines "reasonable distance" as 100 air

miles from any external boundary. Recent

cases have accepted these laws more by

rote than by reason. An example is United

States v. Almeida-Sanchez, 452 F.2d, 459

(1971) which is now pending in this Court.

Here, the court must not only analyze

the ends of the 8 U.S.C. 1357 (a) and

8 C.F.R. 287.1(a) (2) but must also examine

their menas to determine if they comport

with constitutional standards.

In similar legislation, 19 U.S.C. 482,

Congress literaloy authorized searches for

foreign contraband anywhere in the United

States without either a search warrant or

probable cause. The courts, doing their

duty, have understandably balked at such

broad authorization and have required

probable cause to search unless it is a

border search. Cervantes v. United States

263 F.2d. 800 (9th Cir. 1959).

If these rules are upheld, the people

of the following cities, Seattle, San

Francisco, Los Angeles, San Diego, Phoenix,

San Antonio, Houston, New Orleans, Miami,

Baltimore, Philadelphia, Pittsburg, New :

York, Buffalo, Cleveland, Columbus, Detroit

and Washington, D. C.; (cities in excess of

500,000 people) plus the entire population

of the states of Florida, Delaware, New

Jersey, Connecticut, Rhode Island, Maine,

New Hampshire, Vermont and Hawaii, 59

million people, can be stopped and their

vehicles searched without probable cause,

and as the law is stated, without any

justification. If we were to further

include cities of less than one-half milliog

people, we would learn that the preponderant

majority of Americans are subject to the

loss of their search and seizure rights +

under existing legislation. (See Appendix

A).

The right to be free from unreasonable

searches and seizures, is inextricably

interwoven into the fabric of our society.

Yet, the Government has arbitrarily chosen,

100 miles from an external boundary as a

"no Fourth Amendment Rights" zone. In

this zone, Government agents can take away

Fourth Amendment protections when riding

in vehicles.

Chief Justice Taft in Carroll v. United

States, 267 U.S. 132, 153-154, 45 S.Ct. 280,

PHOR COPY

285, (1925) said:

"It would be intolerable and unreasonable

if a prohibition agent were authorized

to stop every automobile on the chance

of finding liquor, and thus subject all

persons lawfully using the highways to

the inconvenience and indignity of

such a search. But those lawfully

within the country, entitled to use

the public highways, have a right to

free passage without interruption or

search unless there is known to a

competent official authorized to search,

probable cause for believing that their

vehicles are carrying contraband -

illegal merchandise.." [Emphasis added]

neideiite, 8 U.S.C. 1357(a) and

8C.F.R. 287.1(a) (2) read together, run

afoul of the equal protection provisions

of the Fifth Amendment. Distance from the

beach or any other external boundary should

not be a criterion for determing the extent

of one's constitutional rights. The reside:

of Miami cannot be afforded lesser constity-

tional rights than the residents of Kansas

City. It amounts to an “invidious discrimi-

nation" of the most rank sort. See e.g.

McLaughlin v. Florida, 379 U.S. 184, 190,

194, 85 S. Ct. 283 (1964); Douglas v.

California, 372 U.S. 353, 356, 83 S. Ct.

814 (1963); Skinner v. Oklahoma, 316 U.S.

535, 541, 62 S. Ct. 110 (1942). These laws

also inhibit the right to travel. Travel

restrictions within the United States were

struck down long ago. In Kent v. Dulles,

357 U.S. 116, 125-126, 78 S. Ct. 1113, 1118,

(1958). Justice Douglas stated for the

court:

"The right to travel is a part of the

‘liberty’ of which citizens cannot be

deprived without the due process of law

under the Fifth Amendment...In Anglo-

Saxon Law, that right was emerging ~

RI FCED THR OLIGH COPY

at least as early as the Magna Carta..

Freedom of movement across frontiers in

either direction, and inside feontiars

as well, was a part of our heritage. ...-

travel within the country, may be neces-

sary for a livelihood. It may be as

close to the heart of the individual

as the choice of what he eats, or wears,

or reads. Freedom of movement is basic

in our scheme of values.”

Aptheker v. Secretary of State, 378 U.S.

500, 84 S. Ct. 1659 (1964), Zemel v. Rusk,

31uU.S. 1, 85 S. Ct. 1271 (1965).

Justice Stewart reiterated the funda-

mental nature of the right in United States

v. Guest, 383, U.S. 745, 757-758, 86 S. Ct.

1175, 1778 (1966):

"The constitutional right to travel..

occupies a position fundamental to the

concept of our Federal Union. It isa

right that has been firmly established

COPY BCUND TOO CLOSE IN CENTER '

and repeatedly recognized..In any event,

freedom to travel throughout the United

States has long been recognized as a

basic right under the Constitution."

In the landmark decision of Shapiro v.

Thompson, 394 U.S. 618, 629-630, 89 S. Ct.

1322, 1329 (1969) Justice Brennan declared

for the majority:

"This court long ago recognized that the

nature of our Federal Union and our con-

stitutional concepts of personal - liberty

unite to require that all citizens be

— to travel throughout the length and

breadth or our land uninhibited by

statutes, rules, or regulations which

unreasonably burden or restrict this

movement. That proposition was early

stated by Chié Justice Taney in the

Passenger Cases, 7 How. 283, 492, 12

L. Ed. 702 (1849)."

Clearly in the present case, the government

has unreasonably, and without justification,

burdened the right to travel. See also

Edwards v. California, 314 U.S. 160, 62

S. Ct. 164 (1941), Aptheker v. Secretary of

State, 378 U.S. 500, 84 S. Ct. 1659 (1964),

Zemel v. Rusk, 381 U.S.1, 85 S. Ct. 1271

(1965). The regulations here in question

will put a chill on the choice of where to

travel. If every midwesterner feared the

possibility of searches at any time

without probable cause, he would certainly

be deterred from traveling to or near any

external boundary. "Wherever a man may be,

he is entitled to know that he will remain

free from unreasonable searches and seizures."

Katz v. United States, 389 U.S. 347, 359,

88 S. Ct. 507, 515 (1967). It has therefore,

been undeniably established that the right

to travel is a "fundamental" constitutional

right. We recognize that freedom of travel,

like freedom of speech, may be subject to

COPY BCUND TOO CLOSE IN CENTER '

reasonable limitations as to time and place,

The government, if not the Court, may take

comfort in the fact that existence of a

"compelling governmental interest” necessary

to justify infringement of a fundamental

constitutional right finds precedent in the

notorious, if not celebrated case of Korenatsu

y. United States, 323, U.S: 214, 65 S. Ct.

193 (1944). Though the Court has been under-

standably reluctant to refer to Korematsu,

the case held that:

"The liberty of every American citizen

freely to come and go must frequently, in

the face of sudden danger, be tcmporarily

limited or suspended."(323 U.S. at 231),