Petition for Writ of Certiorari — Hellwig v. United States

gd TILE COPY “FILED

by MAY 2 1973

| MICHAEL RODAK.JR_CLERK

In the Supreme Court of the

United States

Ocroser Term, 1972

DovcGias Frepenick WeLLwic and

Joun Epwarp WiLLiAMs,

Petitioners,

Vs.

Un rep StaTEs oF .AMERICA,

Respondent.

Petition for a Writ of Certiorari to the

Court of Appeals for the Ninth Circuit

GILBERT EISENBERG

Messrs. FinipreLit & MiskN BERG

450 Sansome Street, Suite 406

San Francisco, California 94111

Counsel for Petitioners

SUBJECT INDEX Page

Opinion Below .......-...--.---------s--c--seceseeeeeecnseneeneeneenennenneeneenees 1

EE ae CO LOTTE TT eR Oe eT 2

Questions Presented for Review -..............-....--.--------s-e-cr--- 2

NS ERLE OE TREAT TTT T EO 2

ER LED tae ene ee ea ON 3

A. Nature of the Proceedings Below ............................ 3

I a dase caitnslenlbresiocaodlonon 5

Reasons Compelling Allowance of the Writ -................... 9

Review Is Necessary to Resolve the Disparate and

Conflicting Decisions Rendered by the Cireuit

Courts Below Regarding the Definitions and Stand-

ards Applicable to So-Called ‘** Border Searches’’.. 9

ES TR Nk OS POE NET OLLIE AT 18

Appendix

TABLE OF AUTHORITIES CITED

Cases Pages

Alexander vs. United States, 362 F.2d 379 (9 Cir. 1966) 1]

Carroll vs. United States, 267 U.S. 152 (1925) 2... 10,18

Castillo-Garcia vs. United States, 424 F.2d 482 (9 Cir.

BE Peace iedcnctaieer Sake Gl aedcataaanaleaantediarcincsiannn 11, 14,15

Chambers vs. Maroney, 399 U.S. 42 (1970) ~..2..--.... 10

Coolidge vs. New Hampshire, 405 U.S. 443 (1971)... 2,18

Davis vs. United States, 431 F.2d 693 (5 Cir. 1970) ...... 15

Dyke vs. Taylor Implement Co., 391 U.S. 216 (1968)... 10

Harris vs. United States, 400 U.S. 1211 (1970) —.......... 13,17

King vs. United States, 348 F.2d 814 (9 Cir. 1965) ...... ll

Marsh vs. United States, 344 F.2d 317 (5 Cir. 1965) -...15, 16

Morales vs. United States, 378 F.2d 187 (5 Cir. 1967)... 11

Ramirez vs. United States, 263 F.2d 385 (5 Cir. 1969). 15

Rodriguez-Gonzales vs. United States, 278 F.2d 256 (9

I, I iia cns capeansoacnaibcinpehepnasnabcasuananmai apatites 14

Valadez vs. United States, 358 F.2d 721 (5 Cir. 1966). 16

Valenzuela-Garcia vs. United States, 425 F.2d 1170 (9

RR, MII sacccsoscisicdsebloosaacconesgcasaMbscioncnasaconmemanan dates 11

Walker vs. United States, 404 F.2d 900 (5 Cir. 1968) ... 16

United States vs. Almeida-Sanchez, 452 F.2d 459 (9

i a wr 13, 14,17

United States vs. Ardle, 435 F.2d 861 (9 Cir. 1970) ...... 15

United States vs. Candlis, 432 F.2d 132 (9 Cir. 1970)... 15

TABLE OF AUTHORITIES CITED ill

Pages

United States vs. Elder, 425 F.2d 1002 (9 Cir. 1970)... 15

United States vs. Glaziou, 402 F.2d 8 (2 Cir. 1968)........ 11, 16

United States vs. Guadalupe-Garza, 421 F.2d 876 (9

Ch, TOT) cris irsccncreresirncccteneceesnsrentomeenntnnniinasiamnaniacinatitn 14

WOT) ..noccennceecensnscosnensnesesesee=aenncesnscnsnssesnsncesensenseseesaccnewenenese 11,13

United States vs. Oswald, 441 F.2d 444 (9 Cir. 1971)... 15

United States vs. Warner, 441 F.2d 821 (5 Cir, 1971).. 16

United States vs. Weil, 432 F.2d 1320 (9 Cir. 1970)....11, 13,

14, 15

STATUTES

hip thee "Baer nen uneenen me ene nen ee 2,3, 10,17

a Oy Oe - is ONO ions erinn 2,4

GIP a aaa onneennee a a ee ER 2,4

a fa ccs icadanlenecaeiasioen lant 3

0 Te -: NOI I siiedsieswssinlansiicoewudennonnis ea 3

LEY yaa E.R oe he eer ene oan 3

ie ee EG | RE een eee eerie aor 2?

CONSTITUTIONS

Fourth Amendment, United States Constitution ...... passim

MISCELLANEOUS

Annotation, Validity of Border Searches and Seizures

by Customs Officials, 6 AL.R.Fed. 317 ........--.----------- 14

Comment, In Search of the Border: Searches Con-

ducted by Federal Customs and Immigration Offi-

cers, N.Y.Univ. Journal of International Law and

Polities, Vol. 5: 93 (Spring, 1972) -.......................... 14

Note, lt the Border of Reasonableness: Searches by

Customs Officials, 53 Cornell L.Rev. 871 (May, 1968) = 14

Note, Jntrusive Border Searches—Is Judicial Control

Desirable?, 115 Univ. of Pa.L.Rev. 276 (1966) -......... 14

——-

In the Supreme Court of the

United States

OcroBer TERM, 1972

Ph Vcutacaeows

Doucias Freperick HeLuwic and

Joun Epwarp WILLIAMs,

Petitioners,

VS.

UNITED STATES OF AMERICA,

Respondent.

Petition for a Writ of Certiorari to the

Court of Appeals for the Ninth Circuit

Petitioners, Douglas Frederick Hellwig and John Edward

Williams, pray that a Writ of Certiorari issue to review the

judgment of the United States Court of Appeals for the

Ninth Cireuit, entered in this case (Court of Appeals Nos.

72-2137 and 72-2185) on March 8, 1975.

OPINION BELOW

The opinion of the Court of Appeals for the Ninth Cireuit

was not reported. A copy of this opinion is attached hereto

as **. \ppendix’’,

2

JURISDICTION

The judgment of the United States Court of Appeals for

the Ninth Circuit was entered on March 8, 1973. The juris.

diction of this Court is invoked under 28 U.S.C, § 1254(1).

QUESTIONS PRESENTED FOR REVIEW

1. Whether and to what extent the Fourth Amendment

of the United States Constitution restricts the power of

customs officers to conduct warrantless searches of vehicles

under Title 19, United States Code, Section 482.

2. Whether customs officers are excused from securing a

warrant to search a vehicle within the territory of the

United States absent ‘‘exigent circumstances’’ as defined

by this Court in Coolidge vs. New Hampshire, 403 U.S. 448

(1971).

STATUTES INVOLVED

The statutes under which petitioners were prosecuted

under Counts Ill and IV of the Indictment, the only rele-

vant charges here involved, were 21 U.S.C. § 841(a)(1)

(1970) and 21 U.S.C. § 846, which provides as follows:

“$41. Prohibited acts A—Unlawful acts

‘*(a) Except as authorized by this subchapter, it

shall be unlawful for any person knowingly or inten-

tionally—

**(1) to manufacture, distribute, or dispense, or

possess with intent to manufacture, distribute, or dis-

pense, a controlled substance;...’’

$846. Attempt and conspiracy

“Any person who attempts or conspires to commit

any offense defined in this subchapter is punishable by

imprisonment or fine or both which may not exceed the

maximum punishment prescribed for the offense, the

commission of which was the object of the attempt or

conspiracy.”’

3

The statute authorizing warrantless searches of vehicles

by customs Officials is 19 U.S.C. § 482 (1866) which provides

as follows:

“$482. Search of vehicles and persons

‘Any of the ollicers or persons authorized to board

of search vessels may stop, search, and examine, as well

without as within their respective districts, any vehicle,

beast, or person, on which or whom he or they shall

suspect there is merchandise which is subject to duty,

or shall have been introduced into the United States in

any manner contrary to law, whether by the person in

possession or charge, or by, in, or upon such vehicle or

heast, or otherwise, and to search any trunk or enve-

lope, Wherever found, in which he may have a reason-

able cause to suspect there is merchandise which was

imported contrary to law; and if any such officer or

other person so authorized shall find any merchandise

on or about any vehicle, beast, or person, or in any such

trunk or envelope, which he shall have reasonable cause

to believe is subject to duty, or to have been unlawfully

introduced into the United States, whether by the per-

son in possession or charge, or by, in, or upon such

vehicle, beast, or otherwise, he shall seize and secure

the same for trial. R.S. § 3061.”’

STATEMENT

A. Nature of the Proceedings Below.

Petitioners Hellwig and Williams were indicted on a four

count indictment on September 15, 1971. They were charged

in Count I with knowingly and intentionally conspiring to

illegally import 845 pounds of marijuana in violation of

Title 21, United States Code, Sections 952, 960, and 963; in

Count Il with knowingly and intentionally importing and

attempting to import approximately 845 pounds of mari-

juana in violation of Title 21, United States Code, Sections

952, 960 and 963; in Count LI] with knowingly and inten-

4

tionally possessing, with intent to distribute, approximately

845 pounds of marijuana in violation of Title 21, United

States Code, Section S41(a)(1) and Section 846; and in

Count IV with knowingly and intentionally possessing, with

intent to distribute, 845 pounds of marijuana in violation of

Title 21, United States Code, Section 841(a)(1).

Petitioners were tried by the Court on Mareh 30 and 31,

1972 (United States District Court, Southern District of

California). Petitioners were found guilty on Counts HI

and IV only. Judgment was entered on May 2, 1972. Peti-

tioner Hellwig was sentenced to a term of 3 years imprison-

ment, and petitioner Williams was sentenced to a term of 2

years imprisonment.

On May 1, 1972, petitioners filed Notice of Appeal to the

United States Court of Appeals for the Ninth Circuit. On

May 2, 1972, petitioner Hellwig was admitted to bail on

appeal in the amount of $25,000.00, and petitioner Williams

was admitted to bail on appeal in the amount of $10,000.00,

The convictions of petitioners herein were affirmed pursuant

to judgment of the Court of Appeals for the Ninth Circuit

entered March 8, 1973 (Appendix).

On March 21, 1973, petitioners filed for rehearing in the

United States Court of Appeals for the Ninth Circuit. Re-

hearing was denied pursuant to an order of the appellate

court entered on April 2, 1973.

On April 6, 1973, petitioners moved the Court of Appeals

for a stay of its mandate pending application to this Honor-

able Court for a writ of certiorari pursuant to Rule 41(b),

Federal Rules of Appellate Procedure. Pursuant to an order

of the Court of Appeals for the Ninth Cirenit entered April

9, 1973, issuance of the mandate was stayed pending the

filing, consideration and disposition by this Honorable

Court of the Petition for a Writ of Certiorari herein.

B. Statement of Facts.

On December 6, 1971, and prior to trial, a hearing was

held before the Honorable J. Clifford Wallace, in the United

States District Court for the Southern District of Califor-

nia on petitioners’ motion to suppress evidence. At that

time all parties by and through their counsel stipulated

that if the Government’s witnesses were called, that their

testimeny would tend to prove the same facts set forth in

the aflidavit of John R. Neese, assistant United States

Attorney, which was atiached to the Government’s opposi-

tion to petitioners’ motion to suppress (iT 13-14, proceed-

ings of Dec. 6, 1971, hereinafter referred to as: ‘‘RT ........

12/6/71"’). By stipulation of the parties, no testimony was

taken at this hearing (RT 14, 12/6/71). That affidavit was,

therefore, the record before the court on the issue of the

legality of the search involved in the case. The affidavit is

hereby set forth in its entirety:

‘‘On September 8, 1971, Captain Richard Ramirez of

the Imperial County Sheriff’s Department advised

Customs Senior Resident David F. Burnett that there

were three persons, two of which were later identified

as John Edward Williams and Douglas Frederick Hell-

wig, Who were staying at Room 7 of the {El Dorado]

Motel in El Centro. California. Williams and Hellwig

had been using a 1970 Pontiae Bonneville bearing Cali-

fornia license 1% ECL. Investigation by Captain

Rumirez revealed that the vehicle was registered to

Michaei Scott Adams. who had been arrested in Sania

Cruz County, California, on July 7, 1971, when he was

found in possession of 255 kilos of marijuana.

‘Surveillance of the room and vehicle were set up

and at aproximately 6:00 p.m. Williams and Hellwig

left El Centro, California, in the 1970 Pontiae with

Williams at the driver and Hellwig as passenger. They

arrived at Calexico, California, and parked at the 200

block of Second Street, several hundred vards north of

6

the international border. Hellwig alighted from the

vehicle and entered Mexico afoot where he was ob-

served walking to a taco stand adjacent to a parking

lot. He stayed there briefly and returned back across

the border into Calexico and entered the 1970 Pontiac

driven by Williams. The two defendants drove around

Calexico for approximately 15 minutes and parked at

the Fed Mart parking lot in Calexico.

‘*Hellwig then left the 1970 Pontiac and entered the

Fed Mart store and after a few minutes returned from

the store and entered a 1965 Pontiae Bonneville bear-

ing California license NMU 599. This car was dusty as

if it had been taken cross country and seemed to be very

heavily loaded in the rear. Hellwig, with Williams

following, then drove back to I] Centro, California, and

parked at the | El] Dorado] Motel and entered Room 7.

‘* Based upon the above information and his previous

experience with smuggling operations, Agent Fernan-

dez believed that Hellwig had crossed the border to

meet his contact, to pay for the marijuana and have the

load ear’s location outlined to him. When Hellwig re-

turned to the Fed Mart lot, a common drop-off point

for load vehicles, his suspicions were confirmed, espe-

cially in light of the appearance of the vehicle.

‘Continuous surveillance was set up throughout the

night and at 6:15 a.m. Hellwig left Room 7 and was

followed out shortly thereafter by Williams. Hellwig

entered the 1965 Pontiac and Williams entered the 1970

Pontiae and they began to drive south on Imperial \ve-

nue in El] Centro, California, traveling closely together.

Both vehicles entered Interstate 8 and headed west

where they were stopped approximately seven miles

from Fl Centro.

“A search of the 1965 Pontiae revealed 382 kilo

packages of marijuana in the trunk compartment.

‘‘Hellwig and Williams were placed under arrest, ad-

vised of their rights and elected to remain silent. How-

ever, while Hellwig was being transported to the Tm-

i

_—

Page

7

perial County Jail he made a spontaneous statement

saying, ‘I shouldn’t have picked up that load.’

‘(pon arriving at the Imperial County Jail defend-

ants were searched and Hellwig was found to be in

possession of $1595 and Williams was in the possession

$548.02 (Clerk’s transcript, pp. 45-47, hereinafter re-

ferred to as “*CT p. _...... ox *

On March 30 and 31, 1972, at the trial of the case, the

Government presented evidence which revealed the follow-

ing facts:

On September 8, 1971, police officers at the Imperial

County Sheriff’s Department and agents of the United

States Bureau of Customs initiated surveillance on the two

petitioners in KI Centro, California. The two petitioners

were staying in Room 7 of the El Dorado Motel in El Centro

(RT 7-8, 93-94, 124, 150, 3/30/72).

At approximately 6:00 P.M. on September 8, 1970, peti-

tioners [lellwig and Williams left Room 7 in the El Dorado

Motel and got into a 1970 Pontiac automobile (RT 8, 3/30/

72).

Petitioner Williams dreve and petitioner Hellwig rode

on the passenger side from the El Dorado Motel in El Cen-

tro to the vicinity of Second Street and Heffernan in Cal-

exico, California (RT 40, 3/30/72). This point is approxi-

mately two blecks from the international boundary. The

petitioner Hellwig got out of the Pontiac and walked south

into Mexieali, Mexico (RT 40-41, 3/30/72). Williams re-

mained in the car at the 200 bleck of Second Street (RT 41,

126, 3/30/72).

Hellwig walked one block south from the international

horder to a taco stand (RT 42, 3/30/72). At the taco stand

Hellwig bought a soft drink and had some conservation with

a person who served him at the taco stand (RT 46, 3/30/

ya

8

72). Hellwig remained at the taco stand a few minutes and

then immediately returned to the United States through the

port of entry at Calexico (RT 47, 3/30/72). After passing

through the port of entry, Hellwig rejoined Williams who

was waiting for him in the 1970 Pontiac near Seeond and

Heffernan (RT 49, 3/30/72). The Pontiae with both peti-

tioners then proceeded to Imperial Avenue where it turned

northbound and proceeded to the Fed Mart parking lot in

Calexico (RT 51, 54, 126, 3/30/72).

Approximately five minutes after entering the Fed Mart

parking lot, the petitioner Hellwig exited the parking lot

driving a 1965 Pontiae (RT 55, 127, 3/30/72). Williams,

driving the 1970 Pontiac, followed the 1965 Pontiac to the

parking lot of the El Dorado Motel (RT 57, 3/30/72). Both

petitioners returned to Room 7 of the El Dorado Motel at

approximately 7:15 P.M. (RT 9, 3/30/72).

At approximately 11:15 P.M., both petitioners left Room

7, got into the 1970 Pontiac and drove to a restaurant where

both petitioners went inside (RT 9, 60, 3/30/72). Hellwig

and Williams remained inside the restaurant for 45 minutes,

at which time they returned to the 1970 Pontiae and drove

hack to the El Dorado Motel, arriving there at approxi-

mately 12 o’clock midnight (RT 10, 77, 78, 3/30/72).

Continuous surveillance was maintained on Room 7 of the

El Dorado Motel throughout the night (RT 10, 94, 128,

3/30/72). At approximately 6:00 A.M., petitioner Hellwig

exited Room 7, went to the 1965 Pontiae and cleaned the

windows and windshield (RT 129, 3/30/72). Hellwig also

opened the hood and appeared to put water in the radiator

(RT 129, 3/30/72). A short time after petitioner Hellwig

exited the room, petitioner Williams walked out of the room

and was observed standing near Hellwig as he was servicing

the 1965 Pontiac (RT 129-130, 3/30/72). Hellwig then

9

entered the 1965 Pontiac and Williams entered the 1970

Pontiac (RT 130, 131, 3/30/72). Both cars then exited the

parking lot of the El Dorado Motel with the 1965 Pontiac

leading the 1970 Pontiae (RT 130, 3/30/72). Both vehicles

proceeded approximately 4 or 5 miles onto Interstate 8

where they were stopped (RT 63, 96, 131, 151, 3/30/72).

Hellwig, who was driving the 1965 Pontiac, was asked to

open the trunk of the vehicle (RT 151, 3/30/72). Since no

search warrant was produced, Hellwig refused to open the

trunk at which time customs agent Sears removed the keys

from the ignition and opened the trunk of the vehicle (RT

151, 3/30/72). Immediately upon opening the trunk, the

customs agents and Sheriff’s officers observed a large num-

ber of kilo packages containing what appeared to be mari-

juana (RT 98, 151, 3/30/72). A later count disclosed that the

total number of kilo packages of marijuana was approxi-

mately 380 (TR 98, 3/30/72).

Hellwig and Williams were then both placed under arrest,

advised of their rights and elected to remain silent (RT 131,

152, 153, 3/30/72). Both petitioners were taken into custody

and transported to the Imperial County Sheriff’s Office (RT

154, 3/30/72).

REASONS COMPELLING ALLOWANCE OF THE WRIT

Review Is Necessary to Resolve the Disparate and Conflicting

Decisions Rendered by the Circuit Courts Below Regarding the

Definitions and Standards Applicable to So-Called ‘Border

Searches.”

It is petitioners’ position that the search of the automo-

hile involved was illegal in that it could neither be sustained

as a valid ‘tborder search’? nor on the basis of probable

cause. As a general rule, to satisfy the Fourth Amendment,

asearch and seizure must be based upon probable cause and

must be authorized by a warrant issued by a judicial officer.

10

An authorized officer may stop and search an automobile on

a public highway without a warrant, however, in a case

where the moving vehicle would disappear before a warrant

could be obtained. But, to conduct a constitutional search,

the officer must have probable cause to believe the vehicle is

earrying contraband; nothing in the mobility of the auto-

mobile itself justifies an intrusion upon personal privacy at

the whim or on the unsupported hunch of a government

agent. Chambers vs. Maroney, 399 US. 42 (1970) ; Dyke vs.

Taylor Implement Co., 391 U.S. 216 (1968); Carroll vs,

United States, 267 U.S. 182 (1925).

Section 482 of Title 19, United States Code, provides

United States Customs agents with statutory authority to

stop and search persons or vehicles on which or whom they

reasonably suspect there is contraband which has been in-

troduced into the United States contrary to law. This statute

provides no express limitations of time or distance, but says

only that officers ‘‘may stop, search, and examine, as well

without as within their respective districts.’’ Although the

term ‘‘border search’’ does not appear in the Constitution

or in Section 482 of Title 19, courts have used the phrase to

describe the limitation imposed by the Fourth Amendment

upon the right of Customs agents to search persons and

vehicles without probable cause. The exception is recog-

nized in the following passage in Carroll vs. United States,

supra, 267 U.S. at 153-154:

‘** Having thus established the contraband goods con-

cealed in and illegally transported in an automobile or

other vehicle may be searched for without a warrant,

we come now to consider under what circumstances

such a search may be made, It would be intolerable and

unreasonable if a prohibition agent was authorized to

stop every automobile on the chance of finding liquor.

and thus subject all persons lawfully using the high-

——

11

ways to the inconvenience and indignity of such a

search. Travelers may be so stopped in crossing an in-

ternational boundary because of national self-protec-

tion reasonably requiring one entering the country to

identify himself as entitled to come in, and his belong-

ings as effects which may be lawfully brought in. But

those lawfully within the country, entitled to use the

public highways, hace a right to free passage without

interruption or search unicss there is known to a com-

petent official authorized to search, probable cause for

beliceing that their vchicles are carrying contraband or

legal merchandise...’ (emphasis added).

Thus the ‘‘border search’? exception rests upon the inher-

ent right of sovereignty to protect and police national boun-

daries (United States vs. Weil, 482 F.2d 1820 (9 Cir. 1970) ;

dleruander vs. United States, 362 F.2d 379 (9 Cir. 1966) ;

King cs. United States, 348 F.2d 814 (9 Cir. 1965) ; United

States vs. Glaziou, 402 F.2d 8 (2 Cir. 1968); Morales vs.

United States, 378 F.2d 187 (5 Cir. 1967) ). Since the excep-

tion is in derogation of normal Fourth Amendment prin-

ciples, it must be narrowly construed. Since the power to

conduct a border search without probable cause or warrant

derives from illegal entry, it may be exercised only in con-

nection with a border crossing (United States vs. Markham,

40 F.2d 1119 (9 Cir. 1971)). While a ‘‘border search’? is

not limited only to the point of entry, it is limited by the re-

quirement that a search conducted away from the immediate

vicinity of the border must be substantial equivalent of a

search upon entry (Alesander vs. United States, supra;

Valenzucla-Garcia ts. United States, 425 F.2d 1170 (9 Cir.

1970); Castillo-Garcia us. United States, 424 F.2d 482 (9

Cir. 1970) ).

ln the instant case, there was absolutely no evidence of

any vehicular border crossing. The only salient facts in the

12

possession of the Customs officials who conducted the search

were:

1. The registered owner of the automobile in which peti-

tioners had arrived in El Centro had been arrested in Santa

Cruz County, California, two months prior to that date for

possession of 235 kilos of marijuana.

2. Petitioner Hellwig had entered Mexico on foot, pur-

chased a soft drink at a taco stand, and returned to the

United States through the port of entry.

3. After returning to the United States, petitioner Hell-

wig went directly to the Fed Mart parking lot in Calexico.

This parking lot was purportedly a ‘‘common drop-off point

for vehicles containing loads of contraband’’.

4. The 1965 Pontiac which petitioner Hellwig picked up

at the Fed Mart parking lot was dusty and seemed to be

heavily loaded in the rear.

Petitioners’ main contention in the courts below was that

under these facts the search could qualify as neither a valid

‘‘horder search’’ nor as a valid warrantless vehicle search

based upon probable cause. In ruling on petitioners’ motion

to suppress, the trial court below agreed that there was no

probable cause to search and arrest, but sustained the

search on the basis of principles regarding ‘‘border

searches’’:

‘‘Prior to the Markham case, | don’t know how you

would ever sustain the search. Counsel, of course, is

right; there is no probable cause for arrest until the

marijuana was found. The customs agents were not

looking for aliens, and so they had no right to stop the

vehicle unless there was probable cause shown’? (com-

ments of Honorable J. Clifford Wallace, Judge Pre-

siding, RT 26, 12/6/71).

Based upon the trial court’s ruling, the parties on appeal

limited their arguments to the question of the validity of the

13

search under the principles enunciated regarding ‘‘ border

searches.’

Although the appellate court agreed with petitioners’

argunient that the search in question could not be justified

asa ‘border search’’, it went on to justify the search on the

basis of probable cause. This alternative justification for

the search is based upon the appellate court’s independent

review of the facts and its opinion that probable cause is a

less exacting standard than that required to sustain a border

search. The appellate court stated :

“We agree with appellants that tie search here in

question cannot be justified as a border search. Such a

search is not authorized by the suspected presence of

contraband but rather because the contents, whatever

they may be, have crossed the border without having

heen subjected to inspection. Reasonable certainty (a

higher standard than probable cause) that such is the

case is necessary. That certainty is lacking here’’

(Opinion of the Court of Appeals for the Ninth Cireuit,

Appendix, p. 1, emphasis added).

Petitioners respectfully submit that the appellate court’s

opinion totally misapprehends the law regarding the rela-

tive standards applicable to the alternative theories of prob-

able cause and ‘‘border searches’’. Clearly the standard

applicable to searches justified upon the basis of probable

cause is higher than that regarding ‘‘border searches’’.

(United States vs. Markham, supra; United States vs. Weil,

432 F.2d 1320 (9 Cir. 1970).

The opinion of the Court of Appeals herein typifies the

confusion which has surrounded issues regarding the pro-

priety of ‘*border searches”? in light of Fourth Amendment

restrictions. The problem has been emphasized by courts

and commentators alike. See for example: Harris vs, United

States, 400 U.S. 1211 (1970); United States vs. Almeida-

14

Sanchez, 452 F.2d 459 (9 Cir. i972), dissenting opinion of

Judge Browning; Comment, Jn Search of the Border;

Searches Conducted by Federal Customs and Immigration

Officers, N.Y. Univ. Jour. of International Law and Polities,

Vol. 5: 93 (Spring, 1972); Note, 1¢ the Border of Reason-

ableness: Searches by Customs Officials, 53 Cornell 1.Rev,

871 (May, 1968); Annotation, Validity of Border Searches

and Seizures by Customs Officers, 6 A.L.R.Fed. 317.

In initial attempts to avoid conflict between the exercise

of the statutory power of Customs officials to conduct war-

rantless searches and the requirements of the Fourth

Amendment courts have construed the statutes to apply

solely to border searches (United States vs. Weil, supra)

and required that all border searches meet minimum Fourth

Amendment standards of ‘reasonableness’? (United States

vs. Guadalupe-Garza, 421 F.2d 876, 878 (9 Cir. 1970) ). Most

of the earlier cases regarding border searches held that the

determination of ‘‘reasonableness’’ was dependent, at least

in part, upon the proximity of such searches to the interna-

tional border, (See e.g., cases collected in Note, Jntrusive

Border Searches—Is Judicial Control Desirable?, 115 Univ.

of Pa. L.Rev. 276, 279-80, n. 28 (1966).) This requirement of

proximity to the border has under recent decisions been

practically abandoned. (See e.g., Castillo-Garcia vs. United

States, 424 F.2d 482 (9 Cir. 1970) upholding a ‘border

search’? occurring 105 miles within the United States ata

time 7 hours after entry; Rodriguez-Gonzales vs, United

States, 378 F.2d 256 (9 Cir. 1967) upholding a border search

oceuring 20 miles within the United States, some 15 hours

after entry.) The standards have been relaxed to such an

extent that the right to search vehicles without probable

cause is not even limited to those vehicles which have re-

cently crossed the border. As the court in Weil stated;

15

“if customs agents are reasonably certain that

parcels have been (a) smuggled across the border and

(h) placed in a vehicle, whether the vehicle has itself

crossed the border or not, they may stop and search

the vehicle, Similarly, if the agents are reasonably cer-

tain that a person has crossed the border illegally, and

has entered a vehicle on this side of the border, we

think that they may stop and search the vehicle and

person. They can assume that he may have brought

something with him’? (United States vs. Weil, 432 F.2d

13220 at 1323 (9 Cir, 1970), cert. denied, 401 U.S. 947

(1971)).

Subsequent cases of the Ninth Circuit have not indicated

whether the test of ‘‘reasonable certainty’? required a dif-

ferent standard of cause than ‘‘mere suspicion’? (United

States vs. Ardle, 435 F.2d 861 (9 Cir. 1970), cert. denied,

402 US, 947 (1971) ; United States vs. Oswald, 441 F.2d 444

(9 Cir, 1971); United States vs, Candlis, 482 F.2d 132 (9

Cir, 1970); United States vs, Elder, 425 F.2d 1002 (9 Cir.

1970)). The Ninth Circuit has, however, imposed the re-

quirement that Customs officials keep the vehicle under con-

stant surveillance from the port of entry to the point of

searel in cases where the ‘border search’? oceurs well with-

in the United States (Castillo-Garcia us. United States, 424

F.2d 482 (9 Cir. 1970) ).

Unlike the Ninth Cirenit, the Fifth Cireuit has not re-

quired constant surveillance nor has it inquired into the

condition of the vehicle at the time of search relative to the

time of entry (Davis us. United States, 431 F.2d 693 (5 Cir.

1970): Marsh vs, United States, 344 F.2d 317 (5 Cir, 1965) ;

Ramirez vs. United States, 263 F.2d 885 (5 Cir. 1969) ). The

Fifth Cireuit has held that the validity of an extended bor-

der search turns upon the issue of whether ‘*the eireum-

stances known to the officer’? amount to ‘freasonable cause

16

to suspect’? that a violation of the customs laws is taking

place (United States vs. Warner, 441 F.2d 821 (9 Cir, 1971);

Valadez vs. United States, 358 F.2d 721 (5 Cir. 1966);

Marsh vs. United States, supra).

Courts of the Second Circuit, noting the different ap.

proaches taken by the Fifth and Ninth Circuits, has em-

phasized the factors of elapsed time and distance from the

moment and location of entry as relevant to the determi-

nation of reasonableness (United States vs. Glaziou, 402

F.2d 8, 14, n. 3 (2 Cir. 1968), cert. denied, 393 U.S, 112]

(1969) ).

The Fifth Cireuit has continued, however, to focus pri-

marily upon the extent to which the searching officers’ sus-

picions were justified. According to this view, the border is

‘Celastic,’? and may be stretched to virtually any length as

long as the required basis for suspicion is present (Marsh

vs. United States, supra). This basis of ‘‘ justifiable sus-

picions’’ has revealed itself to be without limits either in

time (Walker vs. United States, 404 F.2d 900 (5 Cir. 1968))

(8 hours) or distance (Marsh vs. United States, 344 F.2d

317 (5 Cir. 1965) (63 Miles).

While the positions taken by the various Cireuits differ

a great deal, there is a common thread to all of these de-

cisions. The term ‘‘border search,’’ as presently used, is a

misnomer. It is now merely judicial shorthand used to

describe the powers of Customs officials to search without

probable cause, without limitation to any particular geo-

graphic area or time since entry into the United States, and

without a warrant. Petitioners know of no decision of this

Honorable Court which might provide guidance or resolve

the obvious conflicts which have developed in this area, .\s

noted by Mr. Justice Douglas:

Re ts 1 > sou

17

“The rather old dictum of this Court in Carroll v.

United States (citation omitted) hardly meets the re-

finements of these new distinctions”? (dlarris vs. United

States, 400 UsS, 1211 at 1218 (1970)*.

The need for a uniform standard enunciated by this Hon-

orable Court as illustrated by the conflicts in the Cireuits

ad . . . . vv. oe oy

helow is underscored by the conflict within the Ninth Cireuit

itself under the decisions rendered with regard to the in-

stant case. Whereas the multitude of decisions have held

that the objective standard regarding probable cause is

higher and more exacting than that regarding justifiability

of a border search, the appellate court’s opinion herein

(Appendix ) holds that border searches are tested by a

higher standard than probable cause.

Clearly a search not sustainable under Section 482, Title

19, United States Code, cannot upon de novo review of the

facts by the appellate court be sustained on the basis of

probable cause, Moreover, even if, arguendo the Customs

oflicials involved herein had probable cause to search peti-

tioners’ vehicle, there were no exigent circumstances which

would excuse them from obtaining or attempting to obtain

a search warrant. Lf indeed probable cause existed, it was

formed on September 8, 1971, when petitioner Hellwig

entered the 1965 Pontiac Bonneville at the Fed Mart parking

lot in Calexico, This occurred between 6 P.M. and 7:15 P.M.

on September 8, 1971, Petitioners were not arrested until

the following morning. Constant surveillance of petitioners’

motel room showed that no attempt was made to remove the

*Cortiorari has recently been granted in a case involving similar

isstes as to the propriety of a warrantless search, but there the

search was conducted by immigration officials (United States vs.

Almeidu-Sanchez, 452 F.2d 459 (9 Cir. 1971), cert. granted, 406

US, 944 (1972) ).

———

18

vehicle during the night. Accordingly, there was ample time

in which the Customs officials could have secured a search

warrant. No reason appears in the transcript to explain why

a search warrant was not sought. Absent exigent circum.

stances making it not practicable to secure a warrant. fail-

ure to obtain a warrant invalidates the search (Coolidge vs,

New Hampshire, 403 U.S. 443 (1971); Carroll vs. United

States, supra).

CONCLUSION

For the reasons stated above, this Honorable Court

should grant the petition for writ of certiorari and dispose

of the issues surrounding this significant area of criminal

justice.

Respectfully submitted,

GILBERT EISENBERG

Messrs. Fiviprecyi & Eisenperc

Counsel for Petitioners

(Appendix Follows)

Appendix

United States Court of Appeals

for the Ninth Circuit

Unirep States oF AMERICA,

Plaintiff -A ppellee,

am No. 72-2137

DoveLas Freperick HeLLwie,

Defendant-A ppellant.

Unxirep STaTEs oF AMERICA,

Plaintiff-A ppellee,

= No. 72-2185

Joux Epwarp WILLIAMS,

Defendaut-A ppellant.

| March 8, 1973]

On Appeal from the United States District Court

for the Southern District of California

Before: MERRILL and KOELSCH, Circuit Judges, and

GRAY, District Judge”

MEMORANDUM

MERRILL, Circuit Judge:

We agree with appellants that the search here in question

cannot be justified as a border search. Such a search is not

*Honorable William P. Gray, United States District Judge for

the Central District of California. sittmg by designation.

2 Appendix L

authorized by the suspected presence of contraband but

rather because the contents, whatever they may be, have

crossed the border without having been subjected to inspee-

tion. Reasonable certainty (a higher standard than probable

cause) that such is the case is necessary. That certainty is

lacking here.

Nevertheless we conclude that under the unusual circum.

stances of this case the search was valid. In our judgment

the facts, to an experienced border agent familiar with the

methods adopted by smugglers, established probable cause

to believe that the car contained seizable contraband.

Two aspects of this case distinguish it from other cases

where probable cause was alleged to exist because the sus-

pect behaved in a manner consistent with smuggling.

First, this was not a case of an isolated instance of co-

incidence. Here the whole course of. conduct observed

painted a clear picture to the experienced border agent.

Appellants arrived together at El Centro, picked up a car

at Calexico, brought it back to El Centro, and later headed

for home driving the two cars. This gives cause to believe

that the purpose of their trip was to pick up the car and take

it home. Cause to believe that the car had recently been in

Mexico and contained contraband is established by other

facts. The brief trip across the border immediately pre-

ceding the pick-up (in light of other facts) suggests that the

crossing was a necessary prelude to the pick-up, either for

gaining information as to location and identity of the car to

be picked up, securing its keys, or making payment for the

load. Reinforcing this suggestion were the facts of the car’s

proximity to the border and the knowledge of the agents

that the car’s location was at a point frequently used as a

contraband drop.

Appendix 3

Second, while this behavior alone may be consistent with

an innecent purpose, and any suggestion of criminal mis-

conduct coincidental, the additional fact that the appellants

appeared to be connected with one known to have engaged

in narcoties traffic (the car in which appellants had arrived

at El Centro was known to be registered to one who had

heen arrested in Santa Cruz County in possession of 235

kilos of marijuana) is enough to tip the scales in favor of

probable cause to believe that the car contained contraband

brought from Mexico.

We find no merit in the contention that the evidence was

insullicient to establish the guilt of appellant Williams.

DECISION

Judgment affirmed.

1 romaty

In The United States Court of Appeals

For The Ninth Circuit

Filed Apr 2 1973

Dennis R. Mathews, Clerk U.S. Court of Appeals

Unirep States OF AMERICA,

Plaintiff- Appellee,

bed No. 72-2137

Doveias Freperick HeELiwic,

Defendant-A ppellaunt.

Usirep States or AMERICA,

Plaintiff-.A ppellee,

V8. No. 72-2185

Joux Epwarp WILLIAMS,

Defendant-Appellant.

On Petition for Rehearing

Before: MERRILL and KOKLSCH, Circuit Judges,

and GRAY, District Judge

Rehearing denied.