Petition for Writ of Certiorari — Garner v. United States

Supreme Court of the United States

October Term, 1973

No. ‘os ‘ i I 6

UNITED STATES OF AMERICA,

Plaintiff/Respondent,

vS.

ROY D. GARNER,

Defendant/Petitioner.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BURTON MARKS of

MARKS, SHERMAN, SCHWARTZ & BARAB

and

JONATHAN K. GOLDEN

8383 Wilshire Boulevard, Suite 510

Beverly Hills, California 90211

Telephone - (213) 655-5011

Attorneys for Petitioner

Dean-Standefer - 326% Main Street, Huntington Beach, Ca. 92648 - 714/536-7161

PASS TERS:

i

TOPICAL INDEX

Petition for Wnt of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

Opinions Below

Jurisdiction

Questions Presented

Statutes and Constitutional Provisions

Involved ......

Statement of Facts

Reasons for Granting the Wnt

Argument

I The failure of the F BI agent to secure

a warrant prior to seizing the luggage

rendered the seizure unlawful under the

Fourth Amendment and C assis v.

United States

II There is an apparent conflict among the

Circuit Courts of Appeals in rulings gov-

erning the applicability of the Fourth Amend-

ment to “‘aircraft searches” —a conflict which

can only be resolved by this Honorable

Court

III The Court of Appeals has justified the

seizure of petitioner's baggage upon a

ground which was neither urged by the

government nor supported by the evidence

Conclusion

Page

to

to

14

16

Breese ee a ee. ea.

ii

TABLE OF AUTHORITIES CITED

Cases Page

Camara v. Municipal Court, 387 U.S 523 (1967) 7,11

Chimel v. California, 395 US 752 (1969) ; 8

Coolidge v. New aaeaciicets 401 US. 433

(1971) ... : 8.16

Corngold v. United States, 367 F 2d 1

(9th Cir. 1966) 7,8,9

Gold v. United States, 378 F 2d 588

(9th Cir. 1967) oat 10, 13

Katz v. United States, 389 U.S. 347 (1967) 7

Lustig v. United States, 338 US. 74 (1949) 8

People v. Superior Court, 7 Cal. 3d 186 (1972) 15,16

Reinert v. Superior Court, 2 Cal on 3d 36

hy aM i 16

Roaden v. Kentucky, . US ..,

OT Ge ee, Fs. ys | ee ee 16

Schmerber v. California, 384 U.S. 757 (1966) 8

See v. City of Seattle, 387 US. 541 (1967)... 1]

Shapiro v. Thompson, 394 US. 618 (1969) 7

Terry v. Ohio, 392 US. 1 (1968) 7

United States v Bell, 464 F 2d 667

2nd Cir. 1972) nen di 13

United States v. Biswell, 406 US. 311 (1972) 11

TABLE OF AUTHORITIES CITED

Cases (cont'd)

United States v Burton, 475 F 2d 469

(8th Cir 1973)

United States v Clark, 475 F 2d 240

(2nd Cir 1973)

United States v Colbert, 454 F 2d 801

(Sth Cir 1972)

United States v Davis F 2d (9th Cir 1973)

(decided June 29, 1973 - No 71-2993)

7,9, 10, 14,12, 79

United States v Jeffers, 342 US 48 (1951) 16

Vale v Louisiana. 399 US 30(1970) 7

Warden v_ Hayden, 387 U.S 294 (1967) 8

Wyman v James, 400 US 309 (1971) 11

Statutes

United States Constitution

Amendment IV 3.4.7; 85520165

Amendment V -

28 U.S.C. 1254(1) 3

Federal Rules of Criminal Procedure

Rule 41(e) ‘

Berra ve

TPR Ae a PEE EN ER IOI ORI SE FB RRR CE CLO REE A

eT

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1973

No. ....

UNITED STATES OF AMERICA,

Plaintiff Respondent,

VS.

ROY D. GARNER,

Defendant/Petitioner.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

This 1s a petition of ROY D. GARNER for a wnt of

certiorari to review the order made by the United States

Court of Appeals for the Ninth Circuit on July 6, 1973

affirming the order revoking petitioner’s bond on appeal

entered by the United States District Court for the Central

District of California on March 15, 1972, and to review the

order of the appellate court entered on August 31, 1973

denying petitioner’s petition for rehearing and suggestion

for rehearing en banc.

AORN STA

AERTS REN LNA

PIT Te. Tl ee

OPINIONS BELOW

The order of the District Court revoking petitioner's

bond on appeal has not been published in any official

reports. A copy of that order 1s attached hereto as Appen-

dix A. The memorandum opinion of the Court of Appeals

for the Ninth Circuit, filed on July 6, 1973 and as yet

unpublished, as well as the order of the Court of Appeals

denying petitioner’s petition for rehearing and suggestion

for rehearing en banc are attached hereto as Appendix B

and Appendix C, respectively

JURISDICTION

1. On August 8, 1970, petitioner was convicted of

conspiring to violate federal gambling statutes He appealed

to the United States Court of Appeals for the Ninth Circuit

and, pending appeal, was released on bond.

2. On February 25, 1972, the United States Attorney’s

office filed with the United States District Court a motion to

revoke bond on appeal The basis for the government's

request for revocation of bond was that government agents

had seized, from Garner’s luggage, at the airport in New York,

paraphernalia relating to horse races, some of which could be

used to “fix” horse races; and that by virtue thereoi, Garner

was a “danger” to the community.

A hearing was held and, as a result thereof, on

March 15, 1972, the District Court ordered that petitioner's

bond be revoked. The order was stayed until Apml 24, 1972,

so that petitioner could apply to the Court of Appeals for

relief.

a

3. OnApni 17, 1972, petitioner applied to the

District Court for reconsideration of its order revoking

bond. for a stay of the order, and for the return of

property seized by the Federal Bureau of Investigation

and introduced into evidence at the hearing These

motions were denied, and petitioner filed a timely notice

of appeal.

4. On April 24, 1972, a justice of the Court of

Appeals, upon application by petitioner, issued an order

staying the order of the Distnct Court which revoked

petitioner’s bond

5 On July 6, 1973, the Court of Appeals affirmed

the order of the District Court revoking petitioner's bond

6. On August 31, 1973, the panel denied petitioner's

petition for rehearing and suggestion for rehearing en banc

7. On September 28, 1973, the Court of Appeals

for the Ninth Circuit granted petitioner's application for

stay of mandate pending filing of this petition for wnt of

certiorari

8. On September 30, 1973, Mr. Justice Douglas

extended the time for filing this petition for wnt of cer-

tiorari to and including October 30, 1973

9. The jurisdiction of this Court 1s invoked under

Title 28 USC § 125401)

QUESTIONS PRESENTED

I Whether the search of petitioner's luggage by airline

employees constituted a federal search subject to

Fourth Amendment standards of reasonableness?

Baro

iil.

~

Whether government agents who have been advised

by airline employees that luggage tendered for ship-

ment contains suspicious articles must, consistent

with the Fourth Amendment to the United States

Constitution, obtain a search warrant before con-

ducting their own search and seizing the articles?

Whether an appellate court may validate a search

and seizure upon a novel theory not advanced or

argued by the government or supported by the

evidence, and does the adoption of such a new

theory of justification for the seizure constitute

a denial of due process of law as guaranteed by the

Fifth Amendment to the United States Constitution?

STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED

The relevant and constitutional statutory provisions are

set forth in Appendix D; they are the Fourth and Fifth Amend-

ments to the United States Constitution

STATEMENT OF FACTS

On August 8, 1970, petitioner, ROY D GARNER, was

convicted of conspiring to violate federal gambling statutes

and admitted to bail pending appeal. While the appeal was

pending, the United States moved, with supporting affidavits,

to revoke the bond on appeal and remand GARNER to the

custody of the Attorney General

A hearing was held on the government’s motion, and,

oF SNE OE ES SL NED oe

‘len

concurrently, petitioner moved to strike the government's

supporting affidavits and to suppress the evidence which

gave rise to the government’s motion The facts develop-

ed at that hearing may be summarized as follows:

Petitioner, using the name “Mr Green, was attempt-

ing to board a flight from New York City to San Francisco

when he was stopped for questioning by a sky marshal He

was asked a series of questions, to which he responded, and

he permitted a search of his handbag, but when asked to

produce identification, he refused and left the boarding

area, saying, “I don’t want to fly anyway.”

The pilot of the plane was notified, and he ordered

that all passengers and luggage be removed from the aircraft

and then be reboarded. Every passenger and every piece of

luggage on board the plane was then unloaded, after which

the passengers claimed their luggage and were permitted to

reboard the flight However, four pieces of luggage were

left in the baggage area, unclaimed.

Airline personnel subsequently took the bags to the

Baggage Service Office and opened them in an attempt to

ascertain the identity of their owner and to search for any

dangerous instrumentalities like weapons or explosives

Inside the bags they found hypodermic needles, sealed

bottles of unknown substances, and photographs of horses

They also found a prescription bottle with the name of

Roy Garner.

F.B.I. Agent Joseph Fanning was summoned to the

airport, and Fanning conducted a thorough search of the

contents of the luggage and concluded that “something

wasn’t right.” He then telephoned the United States

Attorney’s office in the Eastern District of New York for

a Lig

pica dne dn Ws area) 048

a ae

instructions. The Chief United States Attorney in charge

of the Criminal Division, upon being advised of the contents

of the bags, instructed Agent Fanning to seize everything

Fanning, however, departed from the airport, leaving the

luggage in the custody of United Au Lines’ personnel and

under lock and key

No one attempted to claim the bags, and on the follow-

ing afternoon Agent Fanning returned to seize the luggage

and its contents. He did not possess a warrant for the

seizure but was, instead, relying upon the verbal author-

ization of the United States Attorney

The luggage was taken to the F BI office and inven-

toried by Agent Fanning. Many, but not all. of the items

found by the agent were introduced into evidence at the

hearing on the motion to revoke petitioner’s bond on appeal.

At the hearing it was stipulated that several items con-

tained in the luggage could be used to “fix” horse races by

injecting stimulants or depressants into the bloodstream of

horses

REASONS FOR GRANTING THE WRIT

Petitioner requests that this Court review the decision

of the United States Court of Appeals for the Ninth Circuit

affirming the judgment of the United States District Court,

Central District of California, inasmuch as the Circuit Court

has failed to apply the doctrine of stare decisis and has so

far departed from the accepted and usual course of judicial

proceedings as to call for an exercise of this Court’s power

of supervision. Specifically, the panel failed to apply the

doctrine announced by the Ninth Circuit 1n its en banc ruling

a ee

_

in Corngold v. United States, 367 F.2d 1 (9th Cir 1966),

and United States v. Davis, ..... > == (9th Cir 1973)

(decided June 29, 1972 - No. 71-2993).

ARGUMENT

I

The Failure Of The F BI. Agent To Secure A

Warrant Prior To Seizing The Luggage Render-

ed The Seizure Unlawful Under The Fourth

Amendment And Corngold v. United States.

Initially, it should be observed that petitioner resisted

the government’s motion for revocation of his appeal bond

by moving to suppress and for return of the luggage and the

contents thereof, pursuant to Rule 41(e) of the Federal

Rules of Criminal Procedure.

It iselementary “* . . . that the police must, whenever

practical, obtain advance judicial approval of searches and

seizures through the warrant procedure... ~ (Terry v.

Ohio, 392 U.S. 1 (1968) ). Moreover, it 1s clear that only

in a “few specifically established and well delineated” situa-

tions can a warrantless search be justified (Vale v. Louisiana,

399 U.S. 30, 35 (1970) ). In the instant case, no warrant

was obtained Certainly, under the circumstances, time

would have existed for such a procedure, and, thus, it would

seem to be constitutionally mandated (see, Camara v. Muni-

cipal Court, 387 U.S. $23 (1967); Karz v. United States, 389

U.S. 347 (1967) ). Also, there 1s no evidence of consent (see,

Zap v. United States, 328 U.S. 624 (1964); Shapiro v Thomp-

son, 394 U.S. 618 (1969) ) Similarly, the other justifications

~

for search were not present, such as being incident to

arrest, in hot pursuit, or pursuant to danger of imminent

destruction (see, Chimel v. California, 395 US. 752 (1969);

Warden v. Hayden, 387 US. 294 (1967); Schmerber v.

California, 384 U.S. 757 (1966); Coolidge v. New Hampshire,

401 U.S. 443 (1971) )

In Corngold v. United States, supra the Ninth Circuit,

sitting en banc, made a definitive statement on the applica-

tion of the Fourth Amendment to searches and seizures

performed by airline employees who are acting in conjunc-

tion with agents of the federal government In Corngold

federal agents, suspecting that packages due to be shipped

by air freight contained watches, approached an airline

employee and requested that he open the packages for ther

inspection. The agents not only helped to open the packages,

which were securely bound, but they also pulled out the small

inner boxes to examine their contents The packages were

then closed and shipped to their destination The Ninth Cir-

cuit invalidated this search because the federal agents “had

a hand” in it (Lustig v. United States, 338 U.S. 74 (1949) ).

Here, as in Corngold:

“ _ . . The officers had no warrant, and there

were no circumstances which might have justi-

fied a search without one No arrest was made

to which a search without a warrant might be

incident. The government made no showing

that the packages might be removed before a

warrant could be obtained. Appellant was not

threatening to remove them, nor was the airline,

except under such conditions as the officers saw

fit to impose From the time appellant left the

-s

packages with the carrier in Los Angeles they

were subject to the effective control of the

customs agents. There was nothing to prevent

the agents from securing a warrant on a proper

showing, either before the packages were shipped

from Los Angeles or after they arrived in New York.

On this record, search without a warrant was not

justified even if the customs agents had probable

cause to believe the packages contained contra-

band.”

Corngold v. United States, supra,

367 F.2d at 3.

The Court of Appeals has distinguished the present

case from Corngold on the ground that the initial search

was a private one carried out by an airline employee acting

upon his own rather than at the behest of a federal agent

and that, therefore, the Fourth Amendment standard of 3

reasonableness does not apply.

However, on June 29, 1973, one week before the

filing of the opinion in the instant case, the Ninth Circuit

Court of Appeals stated unequivocally that the government

of the United States has been sufficiently implicated in

airport searches to require that they be conducted in com-

pliance with the Fourth Amendment. United States v.

Davis, supra (9th Cir. No. 71-2993).

“The government’s role in the airport

search program is and has been a dominant

one. But even if the government’s involve-

ment at some point in the period could be

characterized accurately as mere “encourage-

ment,’ or as ‘peripheral, or. . . one of several

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cooperative forces leading to the [alleged] con-

stitutional violation, see United States v. Guest,

383 U.S. 745, 755-56 (1966), that involvement

would nevertheless be ‘significant’ for purposes

of the Fourth Amendment. Constitutional limi-

tations on governmental action would be severe-

ly undercut if the government were allowed to

actively encourage conduct by ‘private’ persons

or entities that is prohibited to the government

itself.

“It makes no difference that the act of

opening appellant’s briefcase was accomplish-

ed by a ‘private’ airline employee rather than

a ‘public’ official. The search was part of the

over-all, nationwide anti-hijacking effort, and

constituted ‘state action’ for purposes of the

Fourth Amendment.”

United States v. Davis, supra,

slip opinion page 15.

In characterizing the search of petitioner’s baggage

as a “private” search, the Court of Appeals relied upon

Gold v. United States, 378 F.2d 588 (9th Cir. 1967). In

Davis, however, the court seriously questioned the con-

tinuing vitality of Gold.

“The major governmental effort to meet

the threat of hijacking began in late 1968, when

hijacking of commercial aircraft reached serious

proportions, and intensified steadily thereafter.

“Various techniques for the surveillance

and search of potential air passengers have been

a part of that effort. At no time since late 1968

A ee el ER DS TE SRT Lt

iti

could activities of this kind at the nation’s

airports have been described accurately as

‘an independent investigation by the carrier

for its own purposes,’ Gold v. United States,

378 F.2d 588, 591 (9th Cir. 1967), and thus

beyond the reach of the Fourth Amendment. :

The United States has ‘significantly involved

itself’ in airport searches from the beginning

Reitman v. Mulkey, 387 U.S. 369, 380 (1967) ws

United States v. Davis, supra,

slip opinion page 4.

In the Davis case, the Ninth Circuit Court of Appeals

held that the appropriate standards for evaluating airport

searches under the Fourth Amendment should be the same

standards applied to “administrative” searches. (See, United

States v. Biswell, 406 U.S. 311 (1972); Wyman v. James, &

400 U.S. 309 (1971); Camara v. Municipal Court, supra,

See v. City of Seattle, 387 U.S. 541 (1967).)

“To meet the test of reasonableness, an

administrative screening search must be as

limited in its intrusiveness as is consistent

with satisfaction of the administrative need :

that justifies it. It follows that airport screen- :

ing searches are valid only if they recognize the

right of a person to avoid search by electing not

to board the aircraft.” :

United States v. Davis, supra,

slip opinion page 25.

“Since a compelled search of persons who

elect not to board would not contnbute to

barring weapons and explosives from the plane,

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it could serve only the purpose of apprehending

violators of either the criminal prohibition against

attempting to board an aircraft while carrying a

concealed weapon, 49 U.S C. § 1472(1), or some

other criminal statute Such searches would be

criminal investigations subject to the warrant

and probable cause requirements of the Fourth

Amendment.”

United States v. Davis, supra

slip opinion page 27

Petitioner contends that the search of his baggage was

plainly a governmental one The search was precipitated

only after MR. GARNER had (1) met the hyacker’s “‘pro-

file’’; (2) activated the magnetometer; (3) submitted to a

search of his handbag; (4) answered a series of questions

posed by a United States sky marshal; and (5) failing to

produce satisfactory identification, had elected not to

board the flight

In characterizing this search as a “private” one, it 1s

submitted that the Court of Appeals has failed to apply the

doctrine of stare decisis and, therefore, the case 1s properly

reviewable by this Honorable Court.

Il

There Is An Apparent Conflict Among The Circuit

Courts Of Appeals In Rulings Governing The Appli-

cability Of The Fourth Amendment To “Aircraft

Searches’’—A Conflict Which Can Only Be Resolved

By This Honorable Court

In United States v. Burton, 475 F.2d 469 (8th Cir. 1973),

itn

an airline ticket agent became suspicious of a defendant

who had met the “hiacker’s profile.” The employee

obtained a skeleton key, opened the defendant's bag, and

discovered a loaded pistol

The Court of Appeals for the Eighth Circuit deter-

mined that this was not a governmental search but, instead,

characterized it as a private one, relying upon Gold v. United

States, supra. The ruling in Burton openly conflicts with the

holding of Davis, supra, and the conflict ought to be resolved

by this Court.

The Court of Appeals for the Second Circuit, while not

characterizing anti-skyjacking procedures as administrative

searches subject to the Fourth Amendment's requirement

of reasonableness, has declared that the opening ofa

passenger’s bag is justifiable only in “compelling circum-

stances,” or after voluntary consent after the passenger

has been made aware of his nght to prevent the search by

relinquishing the opportunity to board the aircraft (See,

United Sates v. Clark, 475 F.2d 240, 247 (2nd Cir 1973) *)

lit is noteworthy, however, that Chief Judge Fnendly of the Court

of Appeals for the Second Circuit has voiced the opinion that any search of

prospective airline passengers 1s reasonable so long as the search is conducted

in good faith for the purpose of preventing hijacking and that citizens may

avoid such searches by choosing not to travel by air. (See, Untied States ¥.

Bell. 464 F.2d 667, 675 (2nd Cur. 1972) (Friendly, Chief Judge concurting).)

‘

je ah

att.

Ill

The Court Of Appeals Has Justified The Seizure

Of Petitioner’s Baggage Upon A Ground Which

Was Neither Urged By The Government Nor

Supported By The Evidence

The Court of Appeals has justified Agent Fanning’s

warrantless seizure of petitioner’s bags on the ground that

an emergency situation prevailed which threatened the

destruction of contraband. (Appendix p. 9 ) There are

two flaws in this reasoning: (1) Agent Fanning did not

recognize the contents of MR. GARNER’s baggage as

“‘seizable contraband” upon discovery, and the record is

devoid of any such subjective belief on his part; instead,

according to his own testimony, after seeing the needles,

the vials, the radio equipment, the notebook, the index

cards and photographs, “I just put the whole thing

together in my mind and I believed that something wasn’t

right here.’’(2) There is nothing in the record to indicate

that Agent Fanning was concerned with the possibility

that the suitcases would “disappear” or somehow be moved

and their contents “‘lost’’; on the contrary, the record reflects

that he was simply suspicious of petitioner’s baggage, that he

connected it with the possibility of fixed races at Aqueduct,

and that he contacted the United States Attorney in New

York for instructions. Clearly, if Agent Fanning had

believed that the bags contained contraband subject to

imminent destruction, he would not have taken the trouble

to consult with the United States Attorney, nor would he

have left the baggage overnight at the airline. Nor is there

any evidence in the record that the airline was prepared to

ee ee a -

ahi.

release the baggage to its claimant or forward the same to

Chicago without first consulting the F.B. I. In short, the

notion that there was an “emergency” justifying the

seizure is a novel theory which originated with the Court

itself

The Supreme Court of California recently addressed

itself to a somewhat similar question in People v. Superior

Court, 7 Cal. 3d 186 (1972) There, the prosecutor attempt-

ed to justify a search and seizure on a theory not urged in

the trial court but presented for the first time on appeal The

Court replied:

“The purpose of the exclusionary rule—to deter

unreasonable searches and seizures by law en-

forcement officers—would clearly be frustrated

if the courts were required to uphold a search

conducted on unreasonable grounds simply

because the prosecuting authorities belatedly

managed to devise an alternative theory on

which the arresting officer could have acted

reasonably if he had known of it Compliance

with the fundamental guarantees of the Fourth

Amendment is not a game to be won by inven-

tive counsel, but a practical, day to day respon-

sibility of law enforcement personnel Accord-

ingly, just as a warrantless arrest or search cannot

be justified by facts of which the officer was

wholly unaware at the time [citations omitted]

so also it cannot be justified on theories thereafter

invented for the consumption of reviewing courts

Id., at page 198.

—iin

“To permit the People to inject this new

theory into the case would deprive the petitioner

of a fair opportunity to present an adequate

record in response. The petitioner was entitled

to assume that the justification for the search

was presented before the magistrate. He had no

opportunity to mount a legal attack on the theory

advanced for the first time before this Court, nor

to present evidence on cross-examination to rebut

the factual basis underlying the additional justifi-

cation for the search [citations omitted] ”

Reinert v. Superior Court, 2 Cal App 3d

36 (1969), at page 42, cited with approval

in People v. Superior Court, supra.

This Court has recently characterized “exigent circum-

stances” as situations in which police action literally must

be “now or never”’ to preserve the evidence of the cnme

(Roaden v. Kentucky, ..... U.S. ....., 93 S. Ct. 2796, 2802

(1973).) Surely, there is nothing in this case to suggest that

the opportunity to seize the contents of the luggage was

fleeting or that this was a circumstance in which it was not

practicable to secure a warrant. (See, Coolidge v. New Hamp-

shire, supra; United States v. Jeffers, 342 US 48, $2 (1951);

United States v. Colbert, 454 F.2d 801, 804 (Sth Cir. 1972)

CONCLUSION

The instant case raises an important federal question

concerning the applicability of the Fourth Amendment to

“airport searches,” which question has not heretofore been

considered by this Court In view of the conflicting rulings

ate

among the Circuit Courts of Appeals and in the Ninth Circuit

itself, petitioner respectfully submits that this petition for

writ of certiorari should be granted and that the issues herein

presented be given plenary consideration by this Honorable

Court.

Respectfully submitted,

BURTON MARKS of

MARKS, SHERMAN, SCHWARTZ &

BARAB

and

JONATHAN K GOLDEN

Attorneys for Defendant/Petitioner

INDEX TO APPENDIXES

Appendix Page

A Order Revoking Bond on Appeal

And Remanding To Custody For

Service of Sentence : 1

B Memorandum Opinion of the

Court of Apepals for the Ninth C ircuit

i)

C Order Denying Petition for Rehearing 10

D Constitutional Provisions Involved 11

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INI) AN BV A ai ROA ec ahs oe “a Piatt news Les

ORDER REVOKING BOND ON APPEAL AND

REMANDING TO CUSTODY FOR

SERVICE OF SENTENCE

In the United States Distnct Court, Central District of

California.

NO. 5356(WF}C.D. (C. A. No. 71-1219)

UNITED STATES OF AMERICA, Plaintiff, v. ROY D.

GARNER, Defendant.

[Filed March 15, 1972]

The United States having appeared through its counsel

of record, the defendant ROY D. GARNER having appeared

through his counsel of record, a hearing having been held in

which both testimony and physical exhibits were introduced,

this Court having heard said testsmony and examined said

exhibits, it appearing that the defendant ROY D GARNER

has continued to participate in criminal activities after his

conviction in this court by a jury, and good cause appearing

therefor;

IT IS HEREBY ORDERED that the bond on appeal of

the defendant ROY D. GARNER heretofore set in the

amount of $10,000.00 personal surety by this court, is here-

by revoked and the defendant ROY D. GARNER 1s forthwith

remanded to the custody of the Attorney General of the

United States to commence service of the sentence hereto-

fore pronounced by this Court.

IT IS FURTHER ORDERED that the revocation of bond

and remand to custody of the defendant ROY D. GARNER

be stayed for twenty-one days until April 24, 1972 at 10:00

Se aR ed Se

Bestieicns piled Dod? es iiates Coke Bator

Appendix 2.

A.M. within which time the defendant may apply to the

United States Court of Appeals for the Ninth Circuit for

relief from this Court’s order.

IT IS FURTHER ORDERED that a bench warrant

be issued for the arrest of the defendant ROY D GARNER

with no bail, but that execution of said bench warrant shall

be stayed until April 24, 1972 at 10:00 A.M.

DATED: This 15 day of March, 1972

WARREN J. FERGUSON

United States District Judge

APPENDIX B

MEMORANDUM OPINION

OF THE COURT OF APPEALS

In the United States Court of Appeals, for the Ninth

Circuit.

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. ROY D. GARNER, Defendant-Appellant

No. 72-1823.

[Filed July 6, 1973]

Appeal from the United States District Court for the

Central District of California.

Before: HAMLEY and MERRILL, Circuit Judges, and

Appendix 3.

SCHNACKE, District Judge*

The search and seizure question presented in this appeal

arises in unusual circumstances On August 8, 1970, Roy D.

Garner was convicted of conspiring to violate federal gambling

statutes. He appealed to this court and, pending appeal, was

released on a ten thousand dollar personal surety bond with

permission to leave the state of California. While the appeal

was pending the United States moved, with supporting affi-

davits, to revoke the bond on appeal and immediately

remand Garner to the custody of the Attorney General The

motion was made on the ground that, on December 16, 1971,

while on bail pending appeal, Garner checked baggage with

United Air Lines in New York City, for transportation to

San Francisco, which was found to contain paraphernalia

used to stimulate and depress race horses According to the

Government this indicated that Garner posed a serious

threat to the community within the meaning of ISUSC

§ 3148.

Garner countered with a motion to stnke from the

Government’s supporting affidavits all statements concern-

ing the luggage and their contents, or, in the alternative, to

suppress such evidence and return the property on the

ground that the property was seized in violation of Garner's

rights under the Fourth Amendment A hearing was held,

at which the motions to strike and to suppress were denied

and the contents of the luggage were received as exhibits.

On the following day, March 15, 1972, the distnct court

entered an order revoking Garner's bail bond, remanding

*The Honorable Robert H. Schnacke, United States District Judge tor the

Northern District of Califorma. s.*tung by designation.

Appendix 4.

him to custody, but staying revocation of the bond until

April 24, 1972, to enable Garner to apply to this court for

relief from the order. On April 3, 1972, the district court

entered an ex parte order releasing most of the exhibits to

the Federal Bureau of Investigation (F.B.I.) in the Southern

District of New York for that agency’s use in conducting

investigations in that district.

On April 5, 1972, Garner moved in the district court

for an order vacating the order revoking Garner’s appeal

bond. On April 13, 1972, Garner moved for an order

setting aside the ex parte order of April 3, 1972. Alter-

natively, he moved for release of all the property to Garner

or his attorney. On April 18, 1972, the district court enter-

ed an order denying all of Garner’s pending motions. Garner

appealed from this order on April 24, 1972.!

The facts pertaining to the search and seizure here in

question are not in dispute. On December 18, 1971, a person

identifying himself as “Mr. Green” bought a ticket in New

York City for a flight to San Francisco on that day, on

United Air Lines flight number 23. A United Air Lines

employee later telephoned Deputy United States Marshal

Victor O’Boyski, Jr., who was assigned to the anti-air-piracy

sin — 20, 1972, Garner petitioned this court for a wit of mandate

t court to revoke its order revoking bail. Garner v. Ferguson,

a Ne. 9.1700. In that proceeding a judge of this cou:t granted a temporary

stay of that district court order on April 24, 1972. On May 12, 1972, a two

judge panel of this court es dents’ motion to retract the stay and

ordered the stay continued in full force and effect. Garner’s petition for a writ

of mandate had not been finally decided by this court. This opinion concerns

only his disect appeal from the decision of the district court denying his motion

for reconsideration of the district court’s bail revocation order.

With regard to the substantive issue, conspiracy, a panel of this court, in an

unreported decision, reversed Garner’s conviction on June 5, 1972. Garner v.

United States, No. 71-1219. Thereafter, the full court granted a rehearing in

banc which is still pending. The search and seizure question now before us is

not involved in the appeal from the conviction.

<a Se ere ee

Appendix 5

detail at John F. Kennedy International Airport, and said

that they had a “Code 1” on their flight number 23 to

San Francisco. This meant that they had a prospective

passenger (“‘selectee””) who had met the hijacker’s “profile”

boarding that flight

O’Boyski proceeded at once to the United Air Lines

terminal where he was informed that the selectee’s name

was “Mr. Green.” After the flight was half boarded, “Mr

Green” entered the boarding area, and was detained by

O’Boyski. “Mr. Green” walked through a magnetometer

which registered “‘a little bit,” but not enough to arouse

O’Boyski’s suspicions “Mr. Green” was asked to open his

hand bag and did so

The deputy then asked “Mr Green’ a series of ques-

tions and requested that he identify himself. “‘Mr. Green”

started to go through his wallet and then asked “Why?”

He was informed that there was an F.A A regulation that

he had to have identification to match his ticket At this

point “Mr. Green” snapped his wallet closed, put it back

in his pocket, and said “No.” O’Boyski then explained that

if “Mr. Green” refused to show O’Boyski identification, it

would be necessary to deny him clearance for the flight

“Mr. Green” then said, “I don’t want to fly anyway.” He

turned around, picked up his hand bag and walked away

from the gate

O’Boyski observed “Mr. Green” stop at the ticket

counter where he conversed with an individual later iden-

tified as Gerald Wofford. This latter individual then walked

to the boarding area and was cleared for boarding After

clearing the remainder of the passengers, O’Boyski ascer-

tained at the ticket counter that “Mr. Green” had cashed

Se SR Sees : ‘ i ar nel lie Pal SE tn SS et eS 4

Appendix 6

in his ticket but had stated that he had no luggage, even

though the employee at the counter had seen him check

some through.

Agents of the airline then informed Michael James

Harte, United Air Lines Supervisor of Passenger Service,

of the events described above. Harte, in turn, informed

the captain of flight number 23. The captain ordered that

all passengers and all luggage be removed from the aircraft

and then be reboarded. Every passenger and every piece of

luggage on board flight number 23 was then unloaded. The

passengers claimed their luggage and were permitted to

reboard the flight.

It was then discovered that four pieces of luggage were

left in the baggage area, unclaimed. These bags were taken

to the Passenger Service Office near the ticket counter

Deputy O’Boyski observed this procedure but did not

participate in any way. He then turned the entire matter

over to the airline personnel and left the United Air Lines

area. The four pieces of luggage were not searched by

O’Boyski or any other federal officers, nor were they search-

ed in their presence

The airline officials waited for ten to fifteen minutes

and the four pieces of luggage were not claimed by anyone.

Airline personnel then took the bags to the Baggage Service

Office, this being the normal procedure for unclaimed

luggage. The bags were taken there to hold them for

passenger claims, and to try to identify the baggage, or

establish the ownership of the baggage

There was no identification on the outside of the bags

Mr. Harte and a companion then took out a box of keys and

found one that would open the bags. They opened the

Nel

Appendix 7.

bags to determine the ownership of the luggage and to

determine whether there were any dangerous instrumental-

ities inside. They found, inside the bags, hypodermic needles,

sealed bottles of unknown substances, and photographs of

horses. They also found a prescnption bottle with the name

Roy Garner.

Upon seeing this paraphernalia, and feeling that some-

thing was not quite right, Mr. Harte telephoned the F.B.I.

Agent Joseph Fanning was instructed by the F BI. to pro-

ceed to the airport. There he met Harte, who informed

him of the boarding incident and described the contents

of the suitcases. Fanning requested that the suitcases be

opened again and Harte did so.2 Fanning saw the parapher-

nalia and telephoned to the Chief of the Cnminal Division

of the United States Attorney’s office in the Eastern District

of New York. Fanning was instructed by that office to seize

everything.

Fanning then left the airport, leaving the luggage there

under lock and key, with United Air Lines, for possible

claiming. The bags were not claimed by anyone. Fanning

returned to the airport the following day and, with the per-

mission of airline personnel, seized the luggage. He took the

bags to the F.B.I. office where the contents were inventoried.

It was stipulated that many of the items found in the suitcases

could be used to “fix” horse races by injecting stimulants or

depressants into the bloodstream of horses or by cutting off

their oxygen supply. Chemical analysis revealed the liquids

found in the luggage to be Phenylbutazone, a drug used to

relieve pain or reduce inflammation, Carphenasine, a

2in addition to the paraphernalia described above, the suitcases com

tained notebooks and a card index.

Cae ee Pe re en ee “ . we . en eer an al

Appendix 8.

tranquilizer, and amphetamines, a central nervous system

stimulant.

Garner does not appear to argue that the initial search

by airline personnel was of a kind which rendered the sub-

sequent government search and seizure unlawful. Nor, under

the described circumstances, would there be any merit to

such an argument. The initial search of Garner’s luggage was

accomplished by private individuals, concerning which search

no federal agents had a part. The Fourth Amendment pro-

scribes governmental, rather than private, action, and there-

fore this initial search was not illegal. United States v. Harless,

464 F.2d 953, 957 (9th Cir. 1972).

Garner does contend that the information conveyed to

the F.B.I. agent by airline personnel follow:ng the latter’s

private search of the luggage, did not provide probable cause

for the subsequent government search and that, in any event,

neither the government search nor the seizure could lawfully

be made in the absence of a search warrant

In our opinion the description airline employees gave

the F.B.I. concerning the contents of the suitcases provided

probable cause to believe that the luggage contained seizable

material. There is dictum in our in banc decision in Corngold

v. United States, 367 F.2d 1, 6 (9th Cir. 1966), to the effect

that, after government agents are advised by carrier employees,

as a result of a private search, that luggage or packages tender-

ed for shipment contain contraband, the proper course is for

the agents to obtain a search warrant before conducting their

own search. But in four more recent panel decisions by this

court it has been held that, under these circumstances, the

government agents need not obtain a search warrant before

x—

ee eee eG

Appendix 9.

conducting their own search.’

We need not resolve this question, however, since at

the time Agent Fanning went to the airport in response

to the information the F.B.I. had received, exigent circum-

stances existed which entitled him to act without delay.

There was reason to believe that unless the agent acted at

once, airline personnel might deliver the suitcases to the

person holding the check stubs, or forward the suitcases

to the airline’s headquarters in Chicago

The circumstances confronting Agent Fanning were

thus similar to those which were present in Clayton v.

United States, 413 F.2d 297 (9th Cir 1969) We there

upheld a warrantless seizure of an air express shipment

at the airport when it was tendered for shipment, holding

that the exigencies of time and the possible removal of the

contraband to another state created an emergency See

also, Gilbert v. United States, 366 F.2d 923, 933 (9th Cir.

1966).

It is true that Agent Fanning did not in fact seize the

luggage on the day he first inspected its contents, but on

the following day. However, the circumstances existing on

this second day were exactly the same as on the preceding

day—airline personnel were free to release the suitcases to

the holder of the stubs, or send them on to Chicago. Failure

of the agent to obtain a warrant when, as a matter of hind-

sight we know he had time to do so, does not change the

realities of the situation facing the agent at the time of the

seizure, nor create a duty where none otherwise existed.

3 cee United States v. Harless, 464 F.2d 953 (9th Cir. 1972); Clayton

y. United States, 413 F.2d 297, 447 F.2d 476 (9th Cir. 1971); Wolf Low v.

United States, 391 F.2d 161 (9th Cir. 1968); Gold v. United States, 378

F.2d 588 (9th Cir. 1967).

aPC. Dee) Ee FE OR AED AE DAO OE BOD a ew me <7 oe o~ Ct La BY ae

Appendix 10.

The luggage was seizable in the eyes of the law, without

warrant, at any time the government agent chose to seize it.

His willingness yesterday to risk loss does not compel him to

take the same risk today.

The order is affirmed.

+

APPENDIX C

ORDER DENYING PETITION FOR REHEARING

In the United States Court of Appeals, for the Ninth Circuit.

UNITED STATES OF AMERICA, Plaintiff-Appellee, v.

ROY D. GARNER, Defendant-Appellant.

NO. 72-1823 (D.C. 5356)

[Filed August 31, 1973]

Before: HAMLEY and MERRILL, Circuit Judges, and

SCHNACKE, District Judge*

The panel as constituted in the above case has voted to

deny the petition for a panel rehearing.

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

banc rehearing, and no judge of the court has requested a vote on

the suggestion for rehearing in banc. Fed.R.App.P. 35 (b).

The petition for rehearing is denied and the suggestion for

a rehearing in banc is rejected.

Dated: August 31, 1973

FREDERICK G. HAMLEY

United States Circuit Judge

*The Honorable Robert H. Schnacke, United States District Judge for the Northern

District of California, sitting by designation.

APPENDIX D 1]

CONSTITUTIONAL PROVISIONS

AMENDMENT IV—SEARCHES AND SEIZURES

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable search-

es and seizures, shall not be violated, and no Warrants

shall issue, but upon probable cause, supported by Oath

or affirmation, and particularly describing the place to

be searched, and the persons or things to be seized

AMENDMENT V—CAPITAL CRIMES; DOUBLE

JEOPARDY; SELF-INCRIMINATION; DUE

PROCESS; JUST COMPENSATION FOR

PROPERTY

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in

the land or naval forces, or in the Militia, when in

actual service in time of War or public danger; nor

shall any person be subject for the same offence to be

twice put in jeopardy of life or limb; nor shall be com-

pelled in any criminal case to be a witness against him-

self, nor be deprived of life, liberty, or property, without

due process of law; nor shall private property be taken

for public use, without just compensation

=

STATE OF CALIFORNIA )

) ss.

County of Orange )

I, the undersigned, say: I am and was at all times herein mentioned, a citizen

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

over the age of eighteen years and not a party to the within action or proceeding;

that

My address is 326% Main Street, Huntington Beach, California 92648, that on

OocT: nop , 1973, I served the within PETITION FOR WRIT OF CERTIORARI

TO THE D STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

(United States v. Roy D. Garner) on the following named parties by depositing the

designated copies thereof, enclosed in a sealed envelope with postage thereon fully

prepaid, in the United States Post Office in the City of Huntington Beach, California,

addressed to said parties at the addresses as follows:

3 COPIES

SOLICITOR GENERAL OF THE UNITED STATES

U. S. Department of Justice

Washington, D. C. 20530

2 COPIES

UNITED STATES ATTORNEY

CENTRAL DISTRICT OF CALIFORNIA

1200 United States Court House

312 North Spring Street

Los Angeles, California 90012

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

Executed on OCT! OBERQ } 1973, at HUNTINGTON BEACH, CALIFORNIA.

th

D. A. Standefer

Dean-Standefer, 3262 Main Street, Huntington Beach, Ca 92648

(714) 536-7161

ll a ee ee ne