Petition for Writ of Certiorari — Sanchez v. United States

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1972

NO. @ 3 ae 6

ROBERT SANCHEZ,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JULIUS A. DIX

15910 Ventura Bldg.

Suite 1412

Encino, CA 91316

(213) 981-1005

Counsel for Petitioner

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1972

NO.

ROBERT SANCHEZ,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JULIUS A. DIX

15910 Ventura Bldg.

Suite 1412

Encino, CA 91316

(213) 981-1005

Counsel for Petitioner

TOPICAL INDEX

Table of Authorities

PETITION FOR CERTIORARI 1

OPINIONS BELOW 2

JURISDICTION 2

QUESTIONS PRESENTED FOR REVIEW 3

CONSTITUTIONAL AND STATUTORY

PROVISIONS 3

STATEMENT OF THE CASE 6

REASONS FOR GRANTING WRIT OF

CERTIORARI 7

THE VALIDITY OF 19 U.S.C. §482

IN LIGHT OF THE FOURTH AMEND~

MENT OF THE UNITED STATES

CONSTITUTION HAS NOT HERETO-

FORE BEEN DETERMINED BY THE

UNITED STATES SUPREME COURT 7

CONCLUSION 10

APPENDIX A

Order of Affirmance of Court

Appeals for Ninth Circuit

TABLE OF AUTHORITIES

Cases

Almeida-Sanchez v.

United States (1973)

pm US ’ 71-6278,

June 21, 1973

Terry v. Ohio (1968)

392 U.S. l,

88 S.Ct. 1868

Constitution

United States Constitution:

Fourth Amendment

Statutes

18 U.S.C. §3231

19 U.S.C. §482

21 U.S.C. §841(a) (1)

21 U.S.C. §952

21 U.S.C. §960

21

28

U.S.C.

U.8.C.

§963

§1245 (1)

ii

2,

ao oOo Oo HO OUD

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1972

NO.

ROBERT SANCHEZ,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent,

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR CERTIORARI

Petitioner, ROBERT SANCHEZ, prays that

a Writ of Certiorari issue to review the

judgment of the United States Court of

Appeals for the Ninth Circuit entered in the

above case on August 28, 1973.

OPINIONS BELOW

The opinion of the District Court for

the Southern District of California is

unreported.

The opinion of the Court of Appeals for

the Ninth Circuit is Slip No. 73-1142.

JURISDICTION

The judgment of the Court of Appeals

; for the Ninth Circuit was made and entered

on August 28, 1973, and copies thereof are

appended to this petition in the Appendix

A. The jurisdiction of the District Court

was based on 18 U.S.C. §3231. The juris-

diction of this Court is invoked under 28

U.S.C. §1245(1):

By writ of certiorari granted

upon the petition of any part to

any civil or criminal case, before

or after rendition of judgment of

decree.

=. —

oe?

QUESTIONS PRESENTED FOR REVIEW

CER SAT a?

1. Whether the detention and search of

petitioner and his automobile, pursuant to

19 U.S.C. §482, was violative of the search

and seizure provisions of the Fourth Amend-

ment of the U. S. Constitution,

2. What limitations exist on the auth-

ority of Federal border agents in light of

a traveller's known citizenship.

CONSTITUTIONAL AND STATUTORY

PROVISIONS

This case involves the following con-

stitutional and statutory provisions:

1. Amendment IV, of the Constitution

of the United States, which provides as

follows:

"The right of the people to be

secure in their persons, houses,

papers, and effects, against

unreasonable searches and seizures,

shall not be violated, and no war-

rants shall issue, but upon probable

cause, supported by oath or affirm-

ation, and particularly describing

3.

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? the place to be searched, and the

persons or things to be seized."

2. Title 28, United States Code, Sec~

tion 1245(1) provides:

"By writ of certiorari granted

upon the petition of any party

to any civil or criminal case,

before or after rendition of judg-

ment or decree."

3. Title 28, United States Code, Sec~-

tion 3231 provides:

"The district courts of the United

States shall have original juris-

diction, exclusive of the court of

the States, of all offenses against

the laws of the United States."

4. Title 19, United States Code, Sec-

tion 482, reads as follows:

"Any of the officers or persons

authorized to board or 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

4.

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 beast,

or otherwise, and to search any

trunk or envelope, wherever found,

in which he may have a reasonable

cause to suspect there was mer-

chandise which was imported con-

trary to law; and if any such

officer or other persons so auth-

orized shall find any merchandise

on or about any such 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."

STATEMENT OF THE CASE

Petitioner drove a borrowed camper

truck into the United States from Mexico

at the Port of Entry of San Ysidro, Cali-

fornia. Petitioner presented proper proof

of U.S. Citizenship. Based on no more than

a mere suspicion on the part of Federal

Border Agents, a search was conducted

revealing marijuana and heroin concealed in

the camper truck. Petitioner was charged

with violation of 21 U.S.C. §§ 84l(a)(1l),

952, 960 and 963. Jurisdiction of the

District Court was conferred by 18 U.S.C.

§3231.

Prior to trial, petitioner moved to

dismiss the indictment and inter alia, to

suppress the evidence on the ground that it

had been illegally seized and accompanied

by an illegal arrest. An evidentiary hear-

ing by the trial court resulted in a denial

of petitioner's motion.

After pleading not guilty and waiving a

jury trial, the court found petitioner

guilty of all counts alleged. Petitioner

was sentenced to five years imprisonment;

in addition he must also serve a special

6.

term of parole for three years.

On December 6, 1972, his petition for

rehearing was denied, and on February 20,

1973, the court granted respondent's motion

to dismiss the appeal. On March 26, 1973,

bail was revoked and on April 6, 1973,

substitution of new counsel for petitioner

was filed and granted.

REASONS FOR GRANTING WRIT OF

CERTIORARI

THE VALIDITY OF 19 U.S.C. §482 IN

LIGHT OF THE FOURTH AMENDMENT OF

THE UNITED STATES CONSTITUTION HAS

NOT HERETOFORE BEEN DETERMINED BY

THE UNITED STATES SUPREME COURT

The Ninth Circuit Court of Appeal, in

affirming the conviction of petitioner, has

upheld the Government's right to search at

this Country's border for contraband, as

set forth in 19 U.S.C. §482. This statute

is clearly violative of the Fourth Amend-

ment of the United States Constitution, in

that it authorizes an unreasonable deten-

tion and subsequent search based on no more

than a mere suspicion by Federal agents.

7.

Despite language within said statute

which purports to require "reasonable cause

to suspect", the authority therein stems

from the Government's power to detain per-

sons at its whim and fancy. Practically

speaking, persons crossing this nation's

borders are no less than under arrest while

undergoing this unreasonable detention and

questioning concerning their belongings.

It is beyond the power of the Government to

deny access to any United States citizen

upon the presentation of proper identifica-

tion. Once said citizenship is proven, what

is the Government to do if faced with an

uncooperative border-crosser?

The truth of the matter is that citizen

returning to his homeland has no choice as

to whether he will submit to such a whimsi-~

cal and unreasonable detention. Conse-

quently, the Government is free to scour

the citizen's person and belongings in hope

of detecting that "probable cause" neces-

sary to strip the traveller's automobile.

Does not then the search actually commence

the instant the traveller is detained?

In the landmark case of Terry v. Ohio,

392 U.S. 1, 88 S.Ct. 1868, this Court deemed

8.

it necessary to grant its writ of certiorari

in order to determine the validity of police

"stop and frisk" authority. In its deci-

sion, the Court upheld such a police power

in order to protect the lives of this

Nation's law enforcement officers. It is

clear that the Government here seeks to

similarly invoke a compelling reason for

granting such a blanket authority to detain

and search. Conceding a legitimate inter-

est exists in seeking to exclude the

importation of narcotics, petitioner submits

that the harm therefrom carries not with it

the immediacy which a concealed weapon does.

The lives of Government Border Agents are

not sought to be protected by 19 U.S.C.

§482, and consequently, there is no similar

compulsion, as in Terry v. Ohio, supra, to

authorize that which is otherwise an unrea-

sonable search and seizure in derogation of

the Fourth Amendment of the United States

Constitution.

In its present state, 19 U.S.C. §482

grants to Federal Border Agents a blanket

authority to detain having as its parameters

nothing more restrictive than the whim and

Caprice of said agents. Petitioner as

9.

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aforementioned argues that such a power to

detain is a power to arrest without limita-

tion. Notwithstanding the fact that the

tenor of this petition expresses the uncon-

stitutionality of said statute, petitioner

asserts the need for and importance of clear

and unarbitrary guidelines for searches and

seizures undertaken at this Nation's borders.

This Court is consequently called upon by

this aggrieved petitioner to protect the

countless thousands of citizen travellers

from unreasonable intrusions upon their

constitutional guarantees.

The question thus presented is a gravely

important Federal issue, which heretofore

has not been determined by this Court.

CONCLUSION

Petitioner therefore respectfully sub-

mits that a writ of certiorari should be

granted in this case.

Respectfully submitted,

JULIUS A. DIX

Attorney for Petitioner

10.

peau

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

)

)

Plaintiff-Appellee, )NO. 73-1142

)

vs ) ORDER OF

‘ ) AFFIRMATION

ROBERT SANCHEZ, )

)

)

Defendant-Appellants.

(August 28, 1973)

On Appeal from the U.S. District Court

For the Southern District of California

Before: CHAMBERS and HUFSTEDLER, Circuit

Judges, and McNICHOLS, District

Judge.*

Appellant drove a pick-up truck into

the United States from Mexico at the Port of

Entry at San Ysidro, California. A search

was conducted revealing commercial quanti-

ties of marijuana and heroin concealed in

the vehicle. This was clearly a border

*Honorable Ray McNichols, United States

District Judge from the District of Idaho

sitting by designation.

FT te ee ee

search. Appellant's reliance on the recent

opinion of the United States Supreme Court

in Alameida-Sanchez v. United States,

US ___, No. 71-6278, June 21, 1973, is mis-~-

placed. The conviction appealed from is

ordered affirmed.

In affirming the conviction we do not

pass on the question raised as to the pur-

ported conflict of interest of trial coun-

Sao * tee a een

sel and the alleged consequent denial of

effective representation, as the record

before us is devoid of any basis for such

determination.

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