Petition for Writ of Certiorari — Tolbert v. United States

FILED

NOV 23 1S73

STAT

SUPREME COURT. U. 8S.

IN THE

E

{] MICHAEL RODAK, JR.,cL

”

OCTOBER TERM, 1973

NO. 73-829

MIREE TOLBERT, JR.,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF -

APPEALS FOR THE NINTH CIRCUIT

LUKE McKISSACK

Attorney at Law

6430 Sunset Boulevard

Suite 521

Hollywood, California 90028

(213} 466-7331

Attorney for Petitioner

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1973

NO.

MIREE TOLBERT, JR.,

Petitioner,

vs.

‘UNITED STATES .OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

LUKE McKISSACK

Attorney at Law

6430 Sunset Boulevard

Suite 521

Hollywood, California 90028

(213) 466-7331

Attorney for Petitioner

PRS EE — Ie

SUBJECT INDEX

Page

Petition

Opinion Below

Grounds on which the jurisdiction

of this Court is invoked

Questions presented for Review

Constitutional Provisions and

Statutes Involved

Statements of the Case 1

Statement of the Facts 3

Reasons for Granting the Writ

and Amplifying the Same

I

THE EXCEPTION ALLOWING WARRANTLESS

SEARCHES WITHOUT PROBABLE CAUSE UNDER

8 UNITED STATES CODE SECTION 1357 (a)

AND DEFINED BY REGULATION 8 C.F.R.

SECTION 287.1 (a) (2) CONTRAVENES

PROTECTIONS AFFORDED BY THE FOURTH

AMENDMENT. 5

De eB et hy LA Mee

a ee ee Roy ws a >

A/ NO APPARENT REASON EXISTS WHY

FOURTH AMENDMENT PRINCIPLES DO NOT

APPLY WITH THE SAME FORCE TO

SEARCHES OF AUTOMOBILES FOR SMUGGLED

ALIENS AS THEY DO TO SIMILAR SEARCHES

FOR SMUGGLED MERCHANDISE. THE TRIAL

COURT ERRED IN BASING ITS EVIDEN-

TIARY RULING UPON THIS DISTINCTION

Il

THERE WAS NO PROBABLE CAUSE TO

JUSTIFY THE DETENTION OR SEARCH OF

PETITIONER'S VEHICLE AT SAN

CLEMENTE

A/ THERE IS NO RATIONAL JUSTIFI-

CATION FOR ALLOWING 8 U.S.C. SECTION

1357(a) TO SERVE AS A BLANKET EXCEP-

TION TO THE FOURTH AMENDMENT RE-

QUIREMENT OF PROBABLE CAUSE

pe & |

THIS COURT MUST IN ACCORD WITH ITS

CONSTITUTIONAL DUTY TO ANNUL

STATUTES AND REGULATIONS VIOLATIVE

OF THE CONSTITUTION STRIKE DOWN THIS

ii

12

14

roo BISWA

ROTORS Slt te 00a oa

Po th ee “5 9 Dar SCNT ENR Se oe . er

ee

UNWARRANTED GOVERNMENTAL BID FOR

LEBENSRAUM AS IMPLEMENTED BY

GOVERNMENTAL REGULATIONS RESCIND=-

ING THE SEARCH SEIZURE RIGHTS OF

OUR CITIZENS, DENYING THEM EQUAL

PROTECTION OF THE LAWS, ABRIDGING

THEIR RIGHT TO TRAVEL, COMPRESSING

THEM INTO THE REFUGE OF MIDDLE

AMERICA, DETERRING LAW ABIDING

MIDDLE AMERICAS FROM SEEKING

EMPLOYMENT OR ENJOYING VACATIONS NEAR

OUR NATION'S BOUNDARIES, .AND OBSTRUCT-

ING FREEDOM OF INTERSTATE COMMERCE 20

IV

THE SEARCH OF PETITIONER'S PERSON

RESULTING IN THE DISCOVERY OF A

REGISTRATION SLIP AND TOW SERVICE

LISTINGS FROM THE YELLOW PAGES OF A

TELEPHONE BOOK CEMENTING THE CASE

AGAINST HIM WAS VIOLATIVE OF THE

FOURTH, FIFTH AND NINTH AMENDMENTS TO

THE FEDERAL CONSTITUTION 33

iii

Ee et ay ea

PES PES Mee eee Cee eet

= Ree tee SAT BIN SD RINE

V

THE FACT THAT PETITIONER'S CAR

WAS IN A STATE OF LIMITED BAILMENT

MAKES THIS A CASE OF FIRST IMPRESS-

ION AND JUSTIFIES THIS COURT'S

UNDERTAKING TO DECIDE WHETHER THAT

STATE OF BAILMENT PRECLUDED

PETITIONER FROM OBJECTING TO THE

SEARCH AND SEIZURE. THE DRIVER

CONSENTED UNDER COERCION AND UNDER

SUBMISSION TO AUTHORITY THEREBY

RENDERING THE SEARCH INVALID 35

Conclusion 37

iv

a la a a a AOSD ADRES BS ESE I re Ie

TABLE OF AUTHORITIES

Page

Aguilar v. Texas

378 U.S. 108, 84 S. Ct. 1509

(1964) 34

Aptheker v. Secretary of State

378 U.S. 500, 84 S. Ct. 1659

(1964) 26,28

Camera v. Municipal Court

307 U.S. 523, 87 S. Ct. 1727

(1967) 31

Boyd v. United States

6 S. Ct. 524 (1886) 21,33

Carroll v. United States

267 U.S. 132, 45 S. Ct. 280

(1925) 9,24

Cervantes v. United States 6,7,10,i11

263 F. 2a 800 (9th Cir. 1959) 13,23

Chimel v. California

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

(1969) 17

Coolidge v. New Hampshire

403 U.S. 443, 91 S. Ct. 2022

(1971) 15,18,19,32

Douglas v. California

372 U.S. 353, 83 S. Ct. 814

(1963) 25

Edwards v. California

314 U.S. 160, 62 S. Ct. 164

(1941) 28

a a ee

ee ie

Gallik v. Superior Court of

Santa Clara County

5 Cal. App. 3d 862, 97 Cal. Rptr.

693 (1971) 17

Heart of Atlanta Motel, INC.

v. United States

379 U.S. 241, 85 S. Ct. 348

(1964) 31

Henderson v. United States

390 F.2d 805 (9th Cir. 1967) 19

Hirabayashi - United States

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

(1943) 29

Katz v. United States

389 U.S. 347, 88 S. ct. 507

(1967) 5,28

Kent v. Dulles

35/7 U.S. 116, 78 S. Ct. 113

(1958) 25

Korematsu v. United States

323 U.S. 214, 65 S. ct. 193.

(1944) 29,30

Landau v. United States

82 F. 2d 285 (2na Cates 9

Marbury v. Madison

1 CRANCH 137 (1802) 20

McLaughlin v. Florida

379 U.S. 184, 85 S. Ct. 283

(1964) 25

Mozzetti v. Superior Court

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

412 (1971) 18,19

vi

DITO ELLE PGS = 5 ONT erie ee ree

te a et

Parrish v. Civil Service

Commission

66 C2 260, 57 CR 623 (1967) 36

Passenger Cases

7 How. 283, 492, 12

L. Ed. 702 (1849) 28

People v. Bustamonte .

270 CA 2d 648, 76 CR 17 (1969) 35

People v. Cassel

23 Cal. App. 3d 715

100 Cal. Rptr. 520 (1972) 17

People v. Gale

46 Cal. 2d 253, 294 P. 2d 13

(1956) 13

People v. Heredia

20 Cal. App. 3d 194

97 Cal. Rptr. 488 (1971) 18

People v. Koehn

102 Cal. Rptr. 102 (1972) 17,18

People v. Superior Court (Kiefer)

3 Cal. 3d 807, 91 Cal. Rptr. 729

(1970) 15

People v. Williams

20 Cal. App. 3d 590, 97 Cal.

Rptr. 815 (1971) 17

Shapiro v. Thompson

394 U.S. 618, 89 S. Ct. 1322

(1969) 27

Skinner v. Oklahoma -

2n8 U.s. $35, 62 8S. Ct. 110

(1942) 25

Vii

SLRs A ES EP OES Sey

PRT ERE RL VEEN S Ae TD Sat tS Be PPI ees

Spinelli v. United States

393 U.S. 410, 89 S. Ct. 584

(1969) 34

Terry v. Ohio

392 U.S. 1, 88 S. Ct. 1868

(1968) 31,33,34

United States v. Almeida-

Sanchez

452 F.2d 459 (1971) - Zdsgdad, 3a

United States v. Guest

383 U.S. 745, 86 S. Ct. 1175

(1966) 26

United States v. Haith

297 F. 2d 65 (4th Cir. 1961)

cert. den. 369 U.S. 804,

wa G. Ct. 643 13

United States v. Hortze

179 F. Supp. 913 (1959) 10

United States v. Lee Ngee How

105 F. Supp. 517 9,22

United States v. Walker .

307 F. 2d 250 (4th Cir. 1962) 13

United States v. Wilson

159 F. Supp. 149 (D.C. Ala. 1957)

cert. den. 358 U.S. 865, 79 S. Ct.

97 13

Virgil v. Superior Court

268 Cal. App. 2d 127, 73 Cal.

Rptr. 793 (1968) 18

Von Moltke v. Gillies

Jae Uins 70, SF Be Ge Bi6 21

zZemel v. Rusk

381 U.S. 1, 85 S. Ct. 1271 (1965) 26,28

viii

a ee

wee - . . ee ee eS ee re ens

CONSTITUTION AND STATUTES

Page

8 U.S.C. Sec. 1357 (a) 5,6,14,22,

25,30,32

8 C.F.R. 287.1 (a) (2) 22,25

19 U.S.C.A. Section 482 9,22

United States Constitution

Fourth Amendment Shee ahcae,

: 21,33

Fifth Amendment 33

Ninth Amendment 34

ix

ON PEA GOAL 8 Le 9S eR age we OPT Det OO, Ee OE ay PREM Ese TR, EG TOT Pane»

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1973

No.

MIREE TOLBERT, JR.,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

Petitioner, MIREE TOLBERT, JR, respect-

fully prays for a Writ of Certiorari to the

United States Court of Appeals for the Ninth

Circuit to review its judgment affirming a

judgment of the United States District Court

for the Southern District of California,

sentencing Petitioner to one year and a day

in prison.

This case squarely presents the issue

of the richt of immigration officers to

search a vehicle at a stationary border check-

point, similar to the same issue before this

Court in Condrado Almeida-Sanchez v. United

States of America (No. 71-6278). This

counsel filed an Amicus Curiae Brief in sup-

port of the Petitioner in that case. More-

over, the checkpoint in the present case was

67 miles from the Mexican border and on the

major north-south highway in California and

the West Coast. Finally, the arguments in

this case, (see Argument III) transcend and

are different than those presented in the

briefs for Petitioner and Respondent in

Almeida-Sanchez and should be evaluated so

that the legitimacy of the stationary border

checkpoint inquiry can be soundly determined.

OPINION BELOW

Trial in the Federal District Court was

by Court.

| The Opinion of the Court below is append-

ed hereto as Appendix "B" and is also found

in the Clerk's er of the Circuit Court.

The Opinion of the Court on the Petition for

Rehearing is appended hereto as Appendix "C".

The judgment of the Court below is appended

hereto as Appendix "D". A copy thereof also

appears in the Clerk's Transcript from the

Circuit Court.

GROUNDS ON WHICH THE JURISDICTION OF

THIS COURT IS INVOKED

The date of the judgment sought to be

reviewed and the time of its entry is August

8, 1973 (R.C.A. Judgment). Petition for Re-

hearing denied October 4, 1973.

The Statutory Provision believed to con-

fer on this Court jurisdiction to review the

judgment in question by Writ of Certiorari is

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

| ee aan

QUESTIONS PRESENTED FOR REVIEW

I

THE EXCEPTION ALLOWING WARRANTLESS SEARCHES

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

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

VENES PROTECTIONS AFFORDED BY THE FOURTH

AMENDMENT.

A./ No apparent reason exists why Fourth

Amendment principles do not apply with

the same force to searches of automo-

biles for smuggled aliens as they do to

similar searches for smuggled merchan-

dise. The Trial Court erred in basing

its evidentiary ruling upon this dis-

tinction.

II

THERE WAS NO PROBABLE CAUSE TO JUSTIFY THE

DETENTION OR SEARCH OF APPELLANT'S VEHICLE

AT SAN ONOFRE.

A./ There is no rational justification for

allowing 8 U.S.C. § 1357(a) to serve

as a blanket exception to the Fourth

D

Amendment requirement of probable cause.

III

THIS COURT MUST IN ACCORD WITH ITS CONSTITU-

TIONAL DUTY TO ANNUL STATUTES AND REGULATIONS

VIOLATIVE OF THE CONSTITUTION STRIKE DOWN THIS

UNWARRANTED GOVERNMENT BID FOR LEBENSRAUM AS

IMPLEMENTED BY GOVERNMENTAL REGULATIONS RE-

SCINDING THE SEARCH AND SEIZURE RIGHTS OF OUR

CITIZENS DENYING THEM EQUAL PROTECTION OF THE

LAWS, ABRIDGING THEIR RIGHT TO TRAVEL, COM-

PRESSING THEM INTO THE REFUGE OF MIDDLE

AMERICA, DETERRING LAW ABIDING MIDDLE AMERI-

CANS FROM SEEKING EMPLOYMENT OR ENJOYING

VACATIONS NEAR OUR NATION'S BOUNDARIES, AND

OBSTRUCTING FREEDOM OF INTERSTATE COMMERCE.

IV

THE SEARCH OF PETITIONER'S PERSON RESULTING

IN THE DISCOVERY OF A REGISTRATION SLIP AND

TOW SERVICE LISTINGS FROM THE YELLOW PAGES

OF A TELEPHONE BOOK CEMENTING THE CASE

AGAINST HIM WAS VIOLATIVE OF THE FOURTH,

FIFTH AND NINTH AMENDMENTS TO THE FEDERAL

CONSTITUTION.

E

weeny

ee BAY: shew

THE FACT THAT PETITIONER'S CAR WAS IN A STATE

OF LIMITED BAILMENT MAKES THIS A CASE OF FIRST

IMPRESSION AND JUSTIFIES THIS COURT'S UNDER-

TAKING TO DECIDE WHETHER THAT STATE OF BAIL-

MENT PRECLUDED PETITIONER FROM OBJECTING TO

THE SEARCH AND SEIZURE. THE DRIVER CONSENTED

UNDER COERCION AND UNDER SUBMISSION TO

AUTHORITY THEREBY RENDERING THE SEARCH INVALID.

CONSTITUTIONAL PROVISIONS AND STATUTES

INVOLVED

Involved are the First, Fourth, Fifth,

and Ninth Amendments to the United States

Constitution, 21 U.S.C. 84l(a), 8 U.S.C. 1357

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

STATEMENT OF THE CASE

An indictment was filed in the Federal

District Court for the Southern District of

California accusing Petitioner, Miree Tolbert,

Jr., with violating 21 U.S.C. § 84l(a) (1)

(possession of a controlled substance with in-

tent to distribute). Appellant was arraigned

and entered a plea of not guilty.

On December 4, 1972, a hearing was held

under Rule 4l(e) of the Federal Rules of

Criminal Procedure to determine whether to

suppress the marijuana found in Petitioner's

vehicle after a border checkpoint search at

San Onofre and papers linking him with the car

found on his person after his arrest. The

motion to suppress was denied. (R.T. 5-17).

Ultimately, on January 30, 1973, the case

was submitted on the testimony adduced at

the hearing on the motion to suppress and the

defendant was found guilty. (R.T. 23-25).

On March 19, 1973, after a pre-sentence

report had been prepared, the Petitioner was

-l-

- See ASAP Mo Hanne — = sl Cen

rf

?

sentenced to a year and one day in custody.

A Notice of Appeal was timely filed and

Petitioner was permitted to remain at liberty

on a corporate surety bond of $3,500. (R.T.

33-34).

Appellant's Brief was filed in the Ninth

Circuit Court of Appeals and oral argument

was heard. On August 8, 1973, the Court

rendered the opinion attached as Exhibit "B".

A Petition for Rehearing En Banc was timely

lodged and denied on October 4, 1973 (See

- Appendix "C").

Bu: Pitowme

STATEMENT OF FACTS

The sole issues in the case relate to

alleged illegal.searches and seizures. The

evidence at the hearing on the motions to sup-

press the marijuana (the controlled substance

which Tolbert allegedly possessed) and the

documents found on his person linking him to

the vehicle carrying the contraband follows:

John Bagley tontition that on September

24, 1972, he was employed as a United States

Border Patrol Agent working the border patrol

checkpoint approximately four miles south of

San Clemente on Interstate 5. The checkpoint

is 67 miles above the Mexican border and is

often called the San Onofre checkpoint. It is

the principal artery for travel between San

Diego and cities to the north such as Los

Angeles, San Francisco, etc. (R.T. 6-7, 14).

At about 12:45 P.M. he observed a tow-truck

towing a white Chevrolet coming into the in-

spection station. He had the driver open the

trunk to the car he was towing. The driver

es

rasarisne.. wet

en ie eK OS S

claimed that he did not have a key to the car

trunk. Justus was told that he would be

detained until the truck was examined. The

trunk was invaded by ripping off the canvas

that led to it from the backseat. The trunk

contained packaged marijuana. Justus was

arrested and handcuffed. Justus stated he

was towing the car to San Clemente. In his

pocket was a piece of paper saying "Tow to

San Clemente". He stated that he was being

led or followed by a black man in a 1972 green

Pinto. (R.T. 7-11). The agent and Justus

proceeded up the highway until Justus pointed

out a 1972 Pinto going east- off of a bridge

and travelling toward the agent and his

arrestee. The agent halted the other car,

"took the driver out of the car and placed him

under arrest". “Petitioner was the driver. He

was immediately searched which resulted in the

discovery of a registration to the car towed

by Justus in his wallet. Also found on Peti-

tioner's person was a telephone book from the

wha

yellow pages listing several towing services

in the area. (R. T. 11-13).

4a

PPencaiiiic wer tsiceraasae bears ale ha

REASONS FOR GRANTING THE WRIT

AND AMPLIFYING THE SAME

x

THE EXCEPTION ALLOWING WARRANTLESS SEARCHES

_ WITHOUT PROBABLE CAUSE UNDER 8 UNITED STATES

CODE § 1357 (a) AND DEFINED BY REGULATION

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

IONS AFFORDED BY THE FOURTH AMENDMENT.

We are faced with a rule in the United

States 9th Circuit Court of Appeals, which

Stands in conspicuous opposition to the con-

stitutional protections generally provided by

the Fourth Amendment. Those protections

threatened by this rule are based on probable

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

Fourth Amendment, subject only to a few

specifically established and well delineated

exceptions" (Katz v. United States, 389 U.S.

347, 357, 88 S. Ct. 507, 514 (1967). The

exception challenged here is not well delin-

eated, nor have the cases demonstrated any

rational grounds behind its establishment.

~ a

ee ee 2 eR AD De

6 ee oa ated = _ . 2 = st

as ee

A. NO APPARENT REASON EXISTS WHY FOURTH

AMENDMENT PRINCIPLES DO NOT APPLY

WITH THE SAME FORCE TO SEARCHES OF

AUTOMOBILES FOR SMUGGLED ALIENS AS

THEY DO TO SIMILAR SEARCHES FOR

SMUGGLED MERCHANDISE. THE TRIAL

COURT ERRED IN BASING ITs EVIDEN-

TIARY RULING UPON THIS DISTINCTION.

Petitioner contends that absent any show-

ing that an international boundary was crossed,

or that Petitioner was under surveillance, the

search without probable cause was not, and

cannot be legitimized as a border search.

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

gration and Naturalization Service Officers

have the right to search automobiles for

illegal aliens within a reasonable distance

of an international border to prevent the

illegal entry of aliens provided there is

probable cause for so doing. Cervantes Vv.

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

However, once it has been established that

aliee

| Ba ko

poe ae RARE SEL ASRE LIER IP ID 28 0 mek Pie ee ee ee ee J

an individual has previously crossed an in-

ternational border and is not presently under

surveillance or pursuit, a search conducted

seventy miles from the Mexican border, as in

the case at bar, does not constitute a border

search and is not justified absent probable

cause. Thus, the Ninth Circuit Court of

appeals has held that the search of an auto-

mobile seventy miles from the nearest port of

entry cannot be justified as a border search,

but must be supported by probable cause.

Cervantes v. United States, supra. In the

Cervantes case, a Federal customs investigator

for the United States Customs Service had re-

ceived information on two oécasions from an

informant describing the defendant and his

several entries into Mexico for purchases of

narcotics. Moreover, the investigator observ-

ed the defendant and his vehicle in Tijuana,

Mexico, and, after checking defendant's

license number, determined that the defendant

had previous narcotics convictions, including

one for. unlawful transportation of narcotics

aFe

into the United States.- This information was

given to border inspectors and the investiga-

tor requested that the automobile and its

occupants be thoroughly searched. On that

same date, defendant crossed the international

border at Tijuana without being searched by the

border inspectors and proceeded north on

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

tion agents at San Clemente, being in possess-

ion of the aforedescribed information, stopped

the defendant and, after searching the defend-.

ant and the vehicle, arrested him for import-

ing, transporting and concealing narcotics

The Ninth Circuit, in reversing defendant's

conviction for lack of probable cause to stop

and search defendant's vehicle at San Clemente,

included the following remarks in a footnote

regarding the Government's contention that the

Court could sustain the search as a border

search:

“An authorized federal border official

May, upon unsupported suspicion, stop and

a

—— = NN SEE ST

ee .

search persons and their vehicles enter-

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

482. Carroll v. United States, supra,

267 U.S. at Pages 153-154, 45 S. Ct. at

Page 285.

But after entry has been completed, a search

and seizure can be made only on a showing of

probable cause. Landau v. United States, 2

cr., 82 F2d 285, 286; United States v. Lee

Ngee How, D.C. 105 F. Supp. 517, 523. The re-

cord does not reveal the elapsed time between |

Cervantes' re-entry into the United States on

December 8, 1955, and his arrest at San

Clemente. However, we take judicial notice of

the fact that San Clemente is more than

seventy miles from the nearest port of entry

from Mexico. There is no indication in ‘the

record that Cervantes had stopped at San

Clemente in connection with a pursuit. Inso-

far as the record reveals, therefore, his

entry had been completed prior to the time he

reached San Clemente, and the government does

=-9-

seta

eee

not contend otherwise." Cervantes v. United

States, 263 F.2d 800, 803, n. 5 {Emphasis

added].

It is submitted that in the case at bar,

the factual circumstances surrounding the

detention of Petitioner's car and the search

of his vehicle at San Clemente demonstrate

that the grounds for searching the vehicle

are far more tenuous than those in the

Cervantes decision and that, therefore, absent

independent probable cause for detaining and

searching defendant's vehicle, and evidence

sought to be introduced be suppressed as not

incident to a valid international border

search. See, also, United States v. Hortze,

179 F. Supp. 913, 918 (D.C. Calif. 1959). To

conclude otherwise, not only the Petitioner,

but all residents of San Diego, or indeed,

visitors who travel northbound to other parts

of California would by virtue of travelling

on Interstate Highway 101, surrender their

Constitutional protection against unreason-

able searches and seizures; and this is true

-10-

| te kiran

PEA CIID Be ta ER OC ER <S ee e ietotet . a

whether or not the persons involved ever

crossed the border. Petitioner did not! Such

an argument is certainly fatuous and invalid.

Respondent in his trial brief in opposi-

tion to our earlier motion to suppress unctu-

ously stated: "Defendant in his moving brief

has confused the different rules for searches

for contraband and searches for aliens in his

attempt to graft the probable cause standards

of the narcotics cases (Cervantes) onto the

the rules justifying immigration inspections."

Justice Browning, in his dissenting

opinion in Almeida-Sanchez, (prior to this

Court's decision) vehemently shares our continu-

ing "confusion". -

2s dinain exists for distinguishing

searches for aliens from searches for merchan-

dise, no one - including this court - has yet

suggested what it might be. Nothing in the

words of the Constitution supports the distin-

ction, and no one suggests that the public in- =

terest in excluding inadmissible aliens is

greater than that in excluding narcotics and

-ll-

Sree SES

and other contraband." United States Vv.

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

We, therefore, continue to assert the appli-

cability of Fourth Amendment protections to

the present case, despite the absurd appli-

cation of 8 U.S.C. Section 1357(a) which

threatens to deny those protections. If the

rational distinction which Judge Browning

as well as Petitioner fail to find, exists,

we demand to know what it is before Peti-

tioner abandons the assertion of rights

Constitutionally protected by the Fourth

Amendment.

II

THERE WAS NO PROBABLE CAUSE TO JUSTIFY THE

DETENTION OR SEARCH OF PETITIONER'S VEHICLE

AT SAN CLEMENTS.

No reason was given by the Federal

Immigration Agents for detaining Petitioner's

car indicating their intention to search his

vehicle without first procuring a search

warrant. First, unlike in United States v.

-]2-

LR ahi enn didabicee aha

~ S™

Haith, 297 F. 65 (4th Cir. 1961), Cert.

den. 369 U.S. 804, 82 S. Ct. 643, and United

States v. Wilson, 159 F. Supp. 149 (D.C.

Ala. 1957), Cert. den. 358 U.S. 865, 79 S. Ct.

97, the Federal Immigration Agents in the

case at bar, had no knowledge or information

pertaining to Petitioner's reputation, nor

did they smell any odor emanating from his

vehicle sufficient to justify their search.

Second, unlike in United States v. Walker,

307 F.2d 250 (4th Cir. 1962), the agents had

had no previous observations of the Petition-

er engaged in illegal activity, nor did they

have any reliable information from an inform-

ant linking Tolbert with illegal activity.

As discussed in Part IA, supra, far

more compelling arguments in Cervantes than

are present in Petitioner's case, were ruled

insufficient to establish probable cause.

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

294 P. 2a 13 (1956) (Damage to vehicle in-

sufficient justification for border search of

vehicle leaving the United States).

=13-

Ss er ee

bable cause existed which would justify the

In fact, the question of whether pro-

detention and threatened search, is of no

moment here since the Trial Judge validated

the agent's authority under this Court's

decisions permitting unrestricted searches

of automobiles at border checkpoints.

A/ THERE IS NO RATIONAL JUSTIFICATION

FOR ALLOWING 8 U.S.C. SECTION 1357

(a) TO SERVE AS A BLANKET EXCEPTION

TO THE FOURTH AMENDMENT REQUIRE-

MENT OF PROBABLE CAUSE.

In further stressing the absurdity of

8 U.S.C. Section 1357 (a) which allows warrant-

less searches without probable cause, Peti-

tioner urges the Court to note that the judi-

cial trend is in the opposite direction, i.e.,

toward a narrowing of exceptions which allow

warrantless searches toward strict. enforce-

ment of the probable cause requirement, and

to a narrowing of the scope of searches to

eliminate the obtrusive “exploratory" search.

ai@e

Ne a Oe ren ee De ee — s

For example, Coolidge v. New Hampshire,

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

the Chambers Rule which allowed warrantless

searches of vehicles (with probable cause)

in motion when seized. This undeniably re-

presents the Court's wish to limit the ex-

ception of the "movable auto" exigency. Yet,

under 8 U.S.C. Section 1357, and under the

guise of a search for "aliens", any auto

within 100 miles of an external boundary

could be searched without a warrant in

possible violation of Coolidge, and without

probable cause in violation of the Supreme

Court mandate in both Coolidge and Chambers.

Section 1357 potentially renders such cases

meaningless.

Further, the probable cause requirement

has been held subject to limitations dictated

by alleged criminal activity, and by the

"reasonable" expectations of the officers

under the circumstances. In People v.

Superior Court (Kiefer), 3 Cal. 3d 807, 91

-15-

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

even when there is probable cause to arrest,

a search for weapons must remain "reasonable

in scope".

"Just as the arresting officer in an

ordinary traffic violation case

cannot reasonably expect to find

contraband in the offender's vehicle,

60 also he cannot expect to find

weapons ... would likewise constitute

an ‘intolerable and unreasonable’

intrusion into the privacy of the

vast majority of peaceable citizens

who travel by automobile. It follows

that a warrantless search for contra-

band must be predicated ... on specific

facts or circumstance giving the

officer reasonable grounds to believe

that such weapons are present in the

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

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

Indeed, very recently in California, the

limitation of scope of search incidental to

-16-

ean ey LL we Ri eles bordinitatid

| eee

* er SP ae

arrest articulated in Chimel v. California

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

applied to searches of automobiles. (People

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

These decisions dictate that a search with-

out a warrant can be conducted in a non-

emergency situation, only if the search coin-

cides with a lawful arrest or detention, and

is restricted to the arrestee's person Or:

area “within his immediate control" (395

U.S. at 762-2). Yet, under Section 1357, no

warrant is required, no probable cause, no

lawful arrest and no restriction of scope of

search. One has only to "look for" aliens,

and the Fourth Amendment protections support-

ed by the above decisional law vanish.

Other cases have limited the use of

"furtive gestures" as 4 basis for probable

cause to search. (Gallik v. Superior Court

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

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

23 Cal. App. 3d 715, 100 Cal. Rptr. 520

(1972), People v. Williams, 20 Cal. App- 3d

@17-

to

590, 97 Cal. Rptr. 815 (1971)). That limita-

tion is meaningless if the probable cause

requirement is abandoned.

Finally, the courts in California have

tried to put a halt to the more obvious

abuses of the authority of the police to

"inventory" the contents of automobiles

lawfully in their custody pursuant to the

removal and storage provisions of the

vehicle code. (Mozzetti v. Superior Court,

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

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

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

rule not merely prospective in effect);

Virgil v. Superior Court, 268 Cal. App. 2d

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

In Mozzetti, there was no arrest, nor

probable cause. The Court saw no rational

grounds for diluting Fourth Amendment pro-

tection namely for "inventory" purposes.

The Court in Koehn,quoted the following

from Justice Stewart's opinion in Coolidge:

-18-

Bieri ini Red Wide

ee

" .. the word ‘automobile’ is not a ]

talisman in whose presence the

Fourth Amendment fades away and

disappears". Coolidge v. New Hamp-

shire, supra, 91 S. Ct. 2022, 2035).

Following Mozzetti, the word "inventory" may

no longer serve as the catalyst disinte-

grating the Fourth Amendment protections.

Unfortunately, one such "talisman" remains:

the word "alien". Petitioner strongly

denies existence of any rationale for this

exception. He rightfully demands an

explanation before he submits to what can

now only be termed a blatant disregard of his

Fourth Amendment rights under the constitu-

tionally invalid mandate of 8 U.S.C. Section

4337.°

¥ "The Ninth Circuit Court of Appeals has

itself made inroads on the Carte Blanche

justification for even border searches.

Seé Henderson v. United States (9th Cir. 1967),

390 F.2d 805. (Probable cause essential to

support search of body cavities).

-19-

OB Ke! ATE DLP

ie a NS So ee =

ade

III

THIS COURT MUST IN ACCORD WITH ITS CONSTI-

TUTIONAL DUTY TO ANNUL STATUTES AND REGULA-

TIONS VIOLATIVE OF THE CONSTITUTION STRIKE

DOWN THIS UNWARRANTED GOVERNMENTAL BID FOR

LEBENSRAUM AS IMPLEMENTED BY GOVERNMENTAL

REGULATIONS RESCINDING THE SEARCH SEIZURE

RIGHTS OF OUR CITIZENS, DENYING THEM EQUAL

PROTECTION OF THE LAWS, ABRIDGING THEIR

RIGHT TO TRAVEL, COMPRESSING THEM INTO THE

REFUGE OF MIDDLE AMERICA, DETERRING LAW

ABIDING MIDDLE AMERICANS FROM SEEKING EM-

PLOYMENT OR ENJOYING VACATIONS NEAR OUR

NATION'S BOUNDARIES, AND OBSTRUCTING FREEDOM

OF INTERSTATE COMMERCE.

It has been clear since Marbury v.

Madison, 1 CRANCE 137 (1804) that Congress

can neither make nor enforce a law, rule, or

regulation which is counter to the Unitea

States Constitution. This principle is the

bedrock of our form of government, yet

Congress and State Legislatures and Adminis-

~26<

DE aN RE TEI Co

trative agencies, have sometimes overstepped

the bounds of our Constitution. It is the

Judiciary's duty to be watchful for citizen's

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

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

a proper case complaining of infringements

of constitutional rights, the judicial branch

of our Government must ascertain the validity

of suspect laws passed by our legislative

bodies, and at least as great a duty exists

when administratively passed regulations are

challenged. Individuals must be protected

from both willful and unwitting encroachment

upon their constitutional rights. "This duty

cannot be discharged as though it were a mere

procedural formality." Von Moltke v. Gillies,

332 U.S. 78, 68 S. Ct. 316. It must be

thoroughly and thoughtfully considered. Here

by the stroke of a pen, the Government has

eliminated Fourth Amendment protections for a

majority of our 200 million citizens. (See

Appendix A). One of the laws here in

question, 8 U.S.C. 1357 (a), allows searches

o2i-

ee ae

dacaialel

of vessels and vehicles for aliens with no

need of obtaining a search warrant and with e

out even probable cause, as long as within

a "reasonable distance" of an external

boundary. Implementing this law is 8 C.F.R.

287.1(a) (2), which defines "reasonable

distance" as 100 air miles from any external

boundary. Recent cases have accepted these

laws more by rote than by reason. An

example was United States v. Almeida-Sanchez,

452 F.2d 459 (1971) subsequently reversed

by this Court. |

Here, the Court must not only analyze

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

287.1(a) (2) but must also examine their means

to determine if they comport with constitu-

tional standards.

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

Congress literally authorized searches for

foreign contraband anywhere in the United

States without either a search warrant or

probable cause. The courts, doing their

duty, have understandably balked at such

| >

Foe A en. Ee BT Se ey

a

broad authorization and have required pro-

bable cause to search unless it is a border

search. Cervantes v. United States, 263 F.2d

800 (9th Cir. 1959).

If these rules are upheld, the people

of the following cities, Seattle, San

Francisco, Los Angeles, San Diego, Phoenix,

San Antonio, Houston, New Orleans, Miami,

Baltimore, Philadelphia, Pittsburgh, New

York, Buffalo, Cleveland, Columbus, Detroit,

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

500,000 people) plus the entire population

of the states of Florida, Delaware, New

Jersey, Connecticut, Rhode Island, Maine,

New Hampshire, Vermont and Hawaii, 59 million

people, can be stopped and their vehicles

searched without probable cause, and as the

law is stated, without any justification. If

we were to further include cities of less

than one-half million people, we would learn

that the preponderant majority of Americans

are subject to the loss of their search and

seizure rights under existing legislation.

=23-

a ee

(See Appendix "A").

The right to be free from unreasonable

searches and seizures is inextricably inter-

woven into the fabric of our society. Yet,

the Government has arbitrarily chosen, 100

miles from an external boundary as a "no

Fourth Amendment Rights" zone. In this zone,

Government agents can take away Fourth Amend-

ment protections when riding in vehicles.

Chief Justice Taft in Carroll v. United

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

285, (1925) said:

| "It would be intolerable and unreasonable

if a prohibition agent were authorized

to stop every automobile on the chance

of finding liquor, and thus subject all

persons lawfully using the highways to

the inconvenience and indignity of such

a search. But those lawfully within

the country, entitled to use the public

highways, have a right to free passage

without interruption or search unless

there is known to a competent official

==

ee

authorized to search, probable cause

for believing that their vehicles

are carrying contraband or illegal

merchandise .." (Emphasis added).

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

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

of the equal protection provisions of the

Fifth Amendment. Distance from the beach

or any other external boundary should not be

a criterion for determining the extent of

one's constitutional rights. The residents

of Miami cannot be afforded lesser constitu-

tional rights than the residents of Kansas.

City. It amounts to an “invidious discrimi-

nation" of the most rank sort. See &.g-

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

194, 85 S. C. 283 (1964); Douglas v. Cali-

fornia, 372 U.S. 353, 356, 83 S. Ct. 814

(1963); Skinner v. Oklahoma, 316 U.S. 535,

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

inhibit the right to travel. Travel re-

strictions within the united States were

struck down long ago. In Kent v. Dulles,

@25-

5 hE a A Tg,

—

—_—

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

(1958). Justice Douglas stated for the

Court:

"The right to travel is @ part of the

"liberty' of which citizens cannot be

Geprived without the due Process of law

under: the Fifth Amendment ... In Anglo-

Saxon Law, that right was emerging at

least as early as the Magna Carta ..

Freedom of movement across frontiers in

either direction, and inside frontiers

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

travel within the country, may be neces-

Sary for a livelihood. It may be as

close to the heart of the individual

as the choice of what he eats, or wears,

Or reads. Freedom of movement is basic

in our scheme of values."

Aptheker v. Secretary of State, 378 U.S. 500,

84 S. Ct. 1659 (1964), Zemel v. Rusk, 381 U.S.

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

Justice Stewart reiterated the fundamen-

tal right in United States v. Guest, 383 U.S.

=26-

ee ee ee ~y

745, 757-758, 86 S. Ct. 1175, 1778 (1966):

"The constitutional right to travel ...

occupies a position fundamental to the

concept of our Federal Union. It is a

right that has been firmly established

and repeatedly recognized. In any

event, freedom to travel throughout the

United States has long been recognized

as a basic right under the Constitution."

In the landmark decision of Shapiro v.

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

1322, 1329 (1969) Justice Brennan declared

for the majority:

"This court long ago recognized that the

nature of our Federal Union and our con-

stitutional concepts of personal liberty

unite to require that all citizens be

free to travel throughout the length

and breadth of our land uninhibited by

statutes, rules, Or regulations which

unreasonably burden or restrict this

movement. That proposition was early

stated by Chief Justice Taney in the

-27<-

States, 389 U.S. 347, 359, 88 S. Ct. 507,

Passenger Cases, 7 How. 283, 492, 12

L. Ed. 702 (1849)."

Clearly in the present case, the government

has unreasonably, and without justification,

burdened the right to ems: See also

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

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

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

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

(1965). The regulations here in question will

put a chill on the choice of where to travel.

If every midwesterner feared the possibility

of searches at any time without probable

cause, he would certainly be deterred from.

travelling to or near any external boundary.

"Wherever a man may be, he is entitled to

know that he will remain free fron unreason-

able searches and seizures". Katz v. United

515 (1967). It has therefore, been undeni-

ably established that the right to travel

is a "fundamental" constitutional right. We

recognize that freedom of travel, like free-

-28-

Ses ee Ea

oe oe 2 at oe ES iret +,

dom of speech, may be subject to reasonable

limitations as to time and place. The

Government, if not the Court, may take comfort

in the fact that existence of a “compelling

governmental interest" necessary to justify

infringement of a fundamental constitutional

right finds precedent in the notorious, if

not celebrated case of Korematsu v. United

States, 323, U. S. 214, 65 S. Ct. 193 (1944).

Though the Court has been understandably

reluctant to refer to Korematsu, the case

held that: |

"The liberty of every American citizen

freely to come and go must frequently,

in the face of sudden danger, be tempor-

arily limited or suspended." (323 U.S.

at 231), See also Hirabayashi v.

United States, 320 U.S. 81, 63 S. ce.

1375 (1943).

Here was justification for the internment of

thousands of Japanese, 80% of whom were

American citizens by birth. Where is the

‘sudden danger’ which could justify the pre-

=-29-

aoe

eo ee

sent restriction? A rising crime rate?

The war in Vietnam? Very obviously,- no exi-

gency exists as justification.

Further, Justice Roberts dissented in

Korematsu from what he considered too broad

a restriction on the right to travel. At

least a temporal limitation was inherent in

that situation. The right to travel under a

literal reading of Section 1357 (a), on the

other hand, is restricted indefinitely. The

overbreadth of Section 1357 (a) and lack of a

compelling governmental interest to justify

the blatant infringement of the fundamental

right to travel, demand that it be ruled

unconstitutional.

This inhibiting of the right to travel

also has interstate commerce implications.

The chilling effect will dissuade people from 4

travelling from mid-america states to border

states, thus decreasing the flow of commerce [

aa impairing the commercial viability of,

for example, motels, restaurants, and gas

stations along interstate routes. See Heart

=

of Atlanta Motel, Inc. Vv. United States,

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

It is so well known that the Supreme

Court has constantly rejected the notion that

searches may be conducted without some under-

lying standard of cause that there is no need

to cite authorities. Although probable cause

is the standard normally required, the Court

has made some carefully Gelineated exceptions.

Camera v. Municipal Court, “87 0.8. 323, 37

S. Ct. 1727 (1967), Terry V- Ohio, 392 U.S. l,

88'S. Ct. 1868 (1968). In the case at bar,

the critical question is whether the Govern-

ment's interest in preventing illegal entry

of aliens is so great that we are willing to

eliminate Fourth Amendment protections for the

majority of our citizens.

In the recent Supreme Court decision,

Almeida-Sanchez v. United States, 41 LW 4970,

the Government argued that the unique problems

connecte@ with policing international travel

justified searches without warrant and with-

out probable cause under the auspices of

a3i-

ST LRG AEE ROOTES

U.S.C. 1357(a). The Government was reminded,

however, of the Supreme Court's former ruling

that the word "automobile" is not a talisman

in whose presence the Fourth Amendment faces

away and disappears. Coolidge v. New Hamp-

shire , 403 U.S. 443 at 461 (1971), 91 Ss. Ct.

2022 (1971). The Court held that the search

of Petitioner's automobile by a roving patrol

could not be justified on the basis of any

special rules applicable to automobile

searches, as probable cause was lacking. It

further held that the search was not a border

search or the functional equivalent thereof.

The Supreme Court left undecided the

question crucial to the present case - whether

searches at an established station (distant

from?) near the border are functional equiva-

lents of border searches and, if so, are they

constitutional? We urge this Court, there-

fore, to rule on this question of such con-

stitutional import. The same issues are at

hand - the invidious discrimination and

burden on the majority of our citizens of

atin

Bann aa

having their freedom of movement greatly re-

‘stricted without probable cause violating

their constitutionally protected right of

privacy - a rational distinction between the

unigueness of border searches for the illegal

entry of aliens which permits border officials

to whimsically conduct searches without cause

and other contraband which requires some

minimal standard of cause. Terry V- Ohio,

supra - the lack of guidelines in distin-

guishing between Getentions, interrogations

and searches. It is the Judiciary's duty to

be watchful for the constitutional rights of

citizens and against any stealthy encroach-

ments thereon. Boyd v. United States, 116

U. S. 616, 6 S. Ct. 524 (1886).

IV

THE SEARCH OF PETITIONER'S PERSON RESULTING

IN THE DISCOVERY OF A REGISTRATION SLIP AND

TOW SERVICE LISTINGS FROM THE YELLOW PAGES OF

A TELEPHONE BOOK CEMENTING THE CASE AGAINST

HIM WAS VIOLATIVE OF THE FOURTH, FIFTH AND

-33-

NINTH AMENDMENTS TO THE FEDERAL CONSTITUTION.

Agent Bagley arrested and handcuffed a

man hitherto unknown to him for towing a

vehicle carrying marijuana. That person was

Clearly an untested unreliable informant in

the toils of the law. He then Claimed that

Petitioner seen driving a 1972 green Pinto

was the man responsible for his towing the

vehicle. This was corroborated only by the

fact that three miles along the crowded high-

way, Interstate 5, a car of the above general

description was observed. betitisser was

immediately arrested and instantly searched

resulting in the recovery of the only

evidence dtnkine him to the towed vehicle

which housed the contraband. Clearly, there

was insufficient probable cause for the

search. See Aguilar v. Texas, 378 U.S. 108,

84 S. Ct. 1509 (1964); Terry v. Ohio, 392

U.S. 1, 88 S. Ct. 1868 (1968); Spinelli v.

United States, 393 U. Ss. 410, 89 S. Ct. 584

(1969).

of.

eae eed

Lae OES ie TRA RIO!

.

Vv

THE FACT THAT PETITIONER'S CAR WAS INA

STATE OF LIMITED BAILMENT MAKES THIS A CASE

OF FIRST IMPRESSION AND JUSTIFIES THIS

COURT'S UNDERTAKING TO DECIDE WHETHER THAT

STATE OF BAILMENT PRECLUDED PETITIONER FROM

OBJECTING TO THE SEARCH AND SEIZURE. THE

DRIVER CONSENTED UNDER COERCION AND UNDER

SUBMISSION TO AUTHORITY THEREBY RENDERING

THE SEARCH INVALID.

In its brief opinion this Court stated

that the fact that Petitioner's car was in

a state of bailment precluded him from

objecting to the search and seizure. tt is

settled law that one in use or possession of

an automobile may give consent to search.

See People v. Bustamonte, 270 CA 2a 648,

76 CR 17 (1969). The fact, however, that

the officials asked to inspect the trunk and

‘when told by the driver that he did not have

a key, replied that the driver would be de-

tained until the trunk was examined, is a

=35-

manifestation of the abuse of authority

on the part of the officials to obtain con-

sent. Certainly such consent is thereby

rendered invalid. See Parrish.v. Civil

‘Service Commission, 66 C2 260, 57 CR 623

(1967).

The car was virtually torn apart in

Order to gain entry to the trunk. Neither

the Trial Judge nor the Prosecutor urged any

bailment and consented to search; yet the

Appellate Court finds this unexplored issue

determinative. This question calls for full

review!

Bee

*

A OS a A — . -

“ a ee ee

CONCLUSION

For the aforegoing reasons, the judgment

shoulda be reversed and the case dismissed.

Respectfully submitted,

Hk, é

G 44 0

the VY mg — Th

}

LUKE MCKISSACK

Attorney for Petitioner

nije

~

APPENDIX

PERAK er ss

APPENDIX "A"

The Government's position requires

that either the majority of the residents of

our .creat nation be kept ignorant of the loss

of their constitutional guarantees cr commence

amass exodus to middle-America to reclaim

them.* Dodce City may in truth asain become

the bastion of law and order. It would seem

that such a mass evacuation of people seems

unjustified by the whimsical need to maintain

bercer checkpoints 100 miles away from our

Refer to Illustration A for a graphic

rendering of those persons potentially

within United States continental boundaries,

cepresents the 100 mile "reasonable distance"

set forth in 8 U.S.C. 1357 (a) and

R. 287-1(a) (2).

42

_l

ERIE RAG EM YTS ATT et oe

LACE

* Of course, we exclude those solid citizens

who may wish to exercise their Constitutional

right to travel to coastal areas io gain

employment, vacation or visit their relatives

and friends.

43

ee

ALLEL LLL LTE LT | ELE IE IN

SPRL RT WH RUNG

RS MENTO

ire. NW

meme cy ee err : —e

ater es & :

mh eal ; oe

RECEIVC! nrvu

ied

UNITED STATES COURT OF APPEALS

KOR THE NINTiQ CIRCUIT

UnitTep States oF AMERICA,

Plaintiff-A ppelee, No. 73-1941

vs.

ORDER OF

Mite TOoLbert, JR., AFFIRMANCE

Defendant-Appellant.

{August 8, 1973]

Appeal from the United States District Court

for the Southern District of California

Before: CHAMBERS and KOELSCH, Circuit Judges, and

LYDICK,* District Judge.

PER CURIAM: ;

The judgment of conviction is affirmed.

In our view, there was a bailment of the car that precluded

the bailor from objecting to the search and seizure.

Bail is revoked.

*The Honorable Lawrence T. Lydick, United States District Judge

for the Central District of California, sitting by designation.

PERNAU-WALSH PRINTING CO., SAN FRANCISCO 8-13-73—480

“AORTA

PRL ald ae Ee

.

en APPENDIx "on

UNITED STATES COURT OF APPEMLS, coyaz gz abe

FOR THE NINTH CIRCUIT

| Docketad

»

UNITED STATES OF AMERICA,

Plaintiff-Anpellee,

‘ey

vs.

ORDER DENYING

PETITION

FOR REHEARING

MIREE TOLBERT, JR.,

Defendant-Anopellant.

ee a a ed

Before: CHAMBERS and KOELSCH, Circuit Judges,

and LYDICX, District Judge.

The petition for rehearing is denied and the

suggestion for rehearing en banc is rejected.

All active judges have been notified of the

petition, and none has voted for en banc.

Miree Tolbert Jr. is lodged in the San Diego City Jail, San Diego, Ca.

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