# Petition for Writ of Certiorari — Tolbert v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1639%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1974 - **Citation:** 416 U.S. 935 ## Text 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 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. RENE ri Pe RIE RPDS ER EIST ~ = a a Se oe a A CARRE ra ~ TE a eP. IB. s oe