Petition for Writ of Certiorari — Sigal v. United States

Supreme Court brief1974

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MICHAEL RODAK, JR..6L

IN THE

Supreme Court of the United States

OCTOBER TERM, 1974

No. V4-126

BARRY SIGAL, a/k/a Barry Edwards, a/k/a

David Allen Spector,

Petitioner,

—_—V/)o—

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS,

TENTH CIRCUIT

ROBERT I. KALINA

575 Lexington Avenue

New York, New York 10022

Attorney for Petitioner

OWEN J. REDMOND

CHRISTOPHER REDMOND

619 W. Douglas

Wichita, Kansas 67213

Of Counsel

Y DIN Ae te At

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INDEX

PAGE

I. Opinions Delivered in the Courts Below ..... 1

II. Jurisdictional Statement ................. 2

III. Questions Presented .................005. 2

IV. Constitutional Provisions and Statutes In-

WSCSUGN ANU SEUES &G Nbcak cased Gbcccen 2

V. Statement of the Case .................... 3

VI. Statement of Facts Relevant to the Issues Pre-

eee 5

VII. Reasons Relied Upon for Allowance of Writ . . 6

SE I a od vk doo ele bkG Reh eke cdc 30

Appendix

A—Table of Amendments to the United States

ee la

B—Table of Statute Cited ................... 3a

C—Opinion of the United States Court of Appeals 4a

D—Order of the United States District Court... 15a

TABLE OF AUTHORITIES

Cases

Agnello v. United States, 269 U.S. 20............ 11, 12

Aguilar v. Texas, 378 U.S. 108 ................. 12

| rn POMP IT H's

PAGE

Carroll v. United States, 267 U.S. 182 ........ 7, 8, 10, 16,

18, 19, 20, 21

Chambers v. Maroney, 399 U.S. 42 ........ 17, 18, 19, 23,

24, 25, 26

Chapman v. United States, 365 U.S.610........ 12, 18, 24

Chimel v. Cal., 396 U.S. 752 ......... ccc ccc cccce 13, 21

Coolidge v. New Hampshire, 403 U.S. 443 ..... 17, 18, 20,

23, 24, 25

Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216 .. 23

Harris v. United States, 331 U.S. 145 ............ 10, 16

Hart v. United States, 162 F.2d 74 .............. 9

Henry v. United States, 361 U.S.98 ............. 9

Husty v. United States, 282 U.S. 694 ............ 9

Johnson v. United States, 333 U.S. 10 ........... 13, 24

Jones v. United States, 357 U.S. 493 ............. 24

Katz v. United States, 389 U.S. 347 .......... 12, 18, 20

Mapp v. Ohio, 367 U.S. 648 ..................... 24

McDonald v. United States, 335 U.S. 451 ....... 13, 15, 24

People v. Zeigler, 100 N.W. 2d 456 .............. 7

Rent v. United States, 209 F.2d 893 ............. 9

Schmerber v. Cal., 384 U.S. 757 ................ 13

Silverthorne Lumber Co. v. United States, 251 U.S.

OO: ca cobeshwskvasesa a cevadl Chskedeciecces 13

Taylor v. United States, 286 U.S.1........ 10, 11, 16, 24

Trupiano v. United States, 334 U.S. 699 .......... 24

United States v. Anderson, 468 F.2d 280 ......... 17,18

United States v. Jeffers, 342 U.S.48 ............. 13, 15

United States v. Kidd, 153 F. Supp. 605 ........... 9

United States v. Lefkowitz, 285 U.S. 452 .......... 11

United States v. Lewis, 270 F. Supp. 807 ........ 10, 16

iii

PAGE

United States v. McCormick, 468 F.2d 68 ........ 17,18

United States v. Miller, 460 F.2d 582 ........... 17, 18

United States v. Payne, 429 F.2d 169 ............ 21

United States v. Stoffey, 279 F.2d 924 ........... 9

Vale v. United States, 399 U.S. 30 ............ 12, 13, 26

Warden v. Hayden, 387 U.S. 287 ...............4. 18

Wong Sun v. United States, 371 U.S. 471 ......... 13

Zap v. United States, 328 U.S. 624 .............. 13

Statute

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United States Constitution

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PE I i's ch cl woyccesw sake ne eax 2, 26, 30

SIE 5 gc cunwean ceed bee eeunedee 3, 26, 30

IN THE

Supreme Court of the United States

October Term, 1974

No.

Barry SIGAL, a/k/a Barry Edwards, a/k/a

David Allen Spector,

Petitioner,

asst cine

UNITED STAVES OF AMERICA,

Respondent. .

PETITION FOR A WRIT OF CERTIORARI TO THE

(UNITED STATES COURT OF APPEALS,

TENTH CIRCUIT

To: The Honorable Warren E. Burger, Chief Justice of the

Supreme Court of the United States and the Associate

Justices of the Supreme Court of the United States.

This is a petition by petitioner-appellant Barry Sigal, by

his attorney Robert I. Kalina, for a writ of certiorari to

review the judgment of the United States Court of Ap-

peals for the Tenth Circuit Court, enteréd in the above

case.

I. Opinions Delivered In Courts Below

The United States District Court did not write an opinion,

except for an order denying Appellant’s motion to suppress

evidence, which is appended to this petition. The written

opinion of the United States Court of Appeals for the

Tenth Circuit has not been officially reported at this time,

but a copy of the Tenth Circuit Court’s opinion is appended

to this petition.

‘

;

II. Jurisdictional Statement

The date of the judgment sought to be reviewed is July

17, 1974 and was entered on the same date. This petition

is being filed within thirty (30) days of said judgment. The

statutory provision believed to confer jurisdiction on this

Court to review the judgment in question is 28 U.S.C. 1254

(1).

III. Questions Presented

The questions presented for review are as follows:

1. Did the Court of Appeals err in failing to reverse

the appellant’s conviction on the grounds that property

obtained from appellant’s airplane as a result of an ille-

gal and unconstitutional search and seizure in Grants,

New Mexico, and an illegal and unconstitutional search

-_ seizure in Liberal, Kansas was admitted into evi-

ence?

2. Did the Court of Appeals err in failing to reverse

the appellant’s conviction on the grounds that an ille-

gally and unconstitutionally obtained statement of the

Appellant was admitted into evidence and thereafter

used by the Court, sitting without a jury as trier of fact

as a specific basis for finding that two of the necessary

requisite elements of the crime charged in the indict-

ment, to wit: knowledge and intent, had been proved to

its satisfaction beyond a reasonable doubt?

IV. Constitutional Provisions and Statutes Involved

This case involves the Fourth Amendment to the United

States Constitution (U.S.C.A. Const. Amend. IV, p. 361),

the Fifth Amendment to the United States Constitution

(U.S.C.A. Const. Amend. V, p. 4), and the Sixth Amend-

ment to the United States Constitution (U.S.C.A. Const.

Amend. VI, p. 4), and Title 21 of the United States Code,

ct Seteeenenee

Section 841(a) (1). These constitutional amendments and

statutory provisions are set out in the Appendix hereto.

V. Statement of the Case

The basis for Federal jurisdiction in the Court of First

Instance was that appellant was criminally charged with

violation of United States Statutes, namely, 21 U.S.C. 960

(a) (1); 21 U.S.C. 960(a) (2) ; 21 U.S.C. 841(a) (1); and

21 U.S.C. 844(a).

This is an appeal by the Appellant from the judgment of

the United States Court of Appeals, 10th Circuit, unani-

mously affirming:

1. His conviction by a trial before the District Court

for the District of Kansas, Hon. Frank C. Theis, presiding,

of the crime of “possession of marijuana with intent to

distribute”, in violation of 21 U.S.C. 841 (a) (1).

2. The order of the District Court, entered May 30, 1973,

denying Appellant’s motions to suppress real and oral evi-

dence obtained by government agents from the Appellant.

3. The sentence thereinafter pronounced by the District

Court, to wit; the sentence of October 3, 1973 committing

the Appellant to the custody of the Attorney General for a

period of five (5) years, to be eligible for parole at such

time as the Board of Paroie may determine pursuant to 18

U.S.C. 4208(a) (2); as well as imposing a special Parole

Term pursuant to 21 U.S.C. 841(b) (1) (B) and subsection

The Appellant was arrested on July 24, 1972 at Liberal,

Kansas. He was subsequently indicted on August 4, 1972 in

the District of Kansas for the crimes of importation of

marijuana in violation of 21 U.S.C. 960(a) (1) ; possession

of marijuana on board an aircraft in violation of 21 U.S.C

960(a) (2); possession of marijuana with intent to dis-

tribute in violation of 21 U.S.C. 841(a) (1); possession of

a controlled substance with intent to distribute in violation

of 21 U.S.C. 841 (a) (1) ; possession of a controlled substance

in violation of 21 U.S.C. 844(a).

The Appellant pled not guilty at his arraignment upon

said indictment on August 4, 1972, Theis, D.J. presiding.

A hearing on Appellant’s motion to suppress real and

oral evidence obtained from the Appellant was held on

February 16, ad Theis D.J. presiding.

The order denying Appellant’s motions to suppress real

and oral evidence was entered on May 30, ade Thies, D.J.

The Appellant was tried without a jury before Theis,

D.J. on July 13, 1973. The government’s motion to dismiss

counts 1, 2, 4 and 5 of the indictment was then granted by

the court. After trial, the court found Appellant guilty of

count 3, violation of 21 U.S.C. 841 (a) (1).

The Appellant was sentenced by the District Court, Theis,

D.J. on October 3, 1973 to the sentence hereinbefore men-

tioned.

The conviction was unanimously affirmed by the United

States Circuit Court of Appeals, 10th Circuit, on July 17,

1974,

VI. Statement of Facts Relevant to the Issues

Presented For Review

On July 23, 1972, 5 federal customs agents in 2 airplanes

followed the Defendant (a pilot of a Piper Cherokee 6)

from Santa Monica, California to Grants, New Mexico

where the Appellant’s aircraft landed that afternoon due to

heavy turbulance and storm activity. Said weather condi-

tions made flying hazardous and imprudent for the next 12

to 15 hours. Thereafter, the 5 customs agents landed at

Grants, New Mexico, and discovered the subject airplane

to be tied down next to aviation gas pumps. The agents then

learned from the airport operator that the Appellant had

rented a room at a local motel for the night. Several hours

after first landing, Agent Weatherman, without the consent

of the Appellant, approached the subject aircraft, allegedly

smelled what he believed to be a marijuana odor, opened

the front compartment and seized a portion of the alleged

subject contraband from the aircraft. Later, Agent Wea-

therman replaced the contraband and closed up the front

compartment. The five agents, in two airplanes, were pres-

ent in Grants, New Mexico during the entire 15 hour period

of the Appeilant’s absence from the airport. The agents were

able to obtain the use of an automobile to obtain food for

themselves during their vigil of these more than fifteen

hours; the subject airport was within eighty miles of a

Federal Magistrate; yet, no effort was ever made by any-

one of the 5 agents to obtain a search warrant for the sub-

ject airplane.

The Appellant next returned to the airport more than

fifteen hours after he had first landed, and the agents

allowed the Appellant to fly the subject aircraft away. The

Seipeeneae LONER

Appellant then was allegedly followed to Liberal, Kansas

where his plane landed and the Appellant alighted there-

from. The five agents, in their two aircrafts, followed the

Appellant and also landed at Liberal.

Thereupon, one of the agents came up behind the Appel-

lant on the airstrip and yelled the name “Barry”, and im-

mediately three other agents came up to where the

Appellant was standing. Thereupon one of the agents asked,

“What’s in the plane?”, and the Appellant allegedly stated,

“the grass”. Two agents held hand guns, and one agent

had an M-1 carbine with a pistol grip, which was con-

tinually held upon the Appellant from the time the Appel-

lant first saw the agent until the Appellant was placed in an

aircraft to be taken to Wichita, Kansas for arraignment.

After the aforementioned statement, and while the guns

were still being held on the Appellant, “Miranda” warnings

allegedly were read to the Appellant, and thereupon, while

the Appellant was taken to Wichita, the plane was again

searched, without a search warrant or an arrest warrant,

and the alleged contraband that formed the subject of the

instant indictment was re-seized.

VII. Reasons Relied Upon For Allowance of Writ

1. THE UNITED STATES COURT OF APPEALS FOR THE

TENTH CIRCUIT DECIDED THE QUESTION OF THE UNCONSTITU-

TIONAL SEARCH OF APPELLANT’S AIRPLANE, A FEDERAL QUES-

TION, IN A WAY WHICH Is IN CONFLICT WITH DECISIONS IN

OTHER CIRCUIT CCURTS OF APPEALS AS WELL AS APPLICABLE

DECISIONS OF THIS COURT.

A. A Search of an Airplane Must Follow the Rules

of a Search of a Premises or an Automobile.

An automobile is no more vulnerable to an incidental

search, without a warrant than a private residence. (People

v. Zeigler, 100 N.W., 2d 456). So must the airplane be in

the instant case. The Court of Appeals stated that we are

concerned here with a search of an airplane “which cer-

tainly is as mobile, if not more so, than an automobile

. .. [T]he mobility of the thing searched in the instant

case is a most significant factor in determining whether

Weatherman’s search of Sigal’s aircraft was constitution-

ally permissible.” (App. Page 10a)

The Court of Appeals seems to be saying that the word

“airplane” is a talisman in whose presence the Fourth

Amendment fades away and disappears. Such is not the

law as will be set forth herein at length. Appellant had a

proprietary interest in the airplane. However, the fact that

a motor vehicle may, in general, be quickly removed from

a jurisdiction has led the courts to allow officers to search

motor vehicles without warrants when it would have other-

wise been impracticable to obtain warrants. The same rule

must apply, admittedly, te airplanes.

The United States Supreme Court in Carroll v. United

States, 267 U.S. 132, 153; 45 S. Ct. 280, 285 said:

“ec

.... the guaranty of freedom from unreasonable

searches and seizures... has been construed, ... as

recognizing a necessary difference between a search

of a store, dwelling house, or other structure in re-

spect of which a proper official warrant readily may

be obtained and a search of an... automobile for

contraband goods, where it is not practicable to

secure a warrant, because the vehicle can be quickly

TOO Le

;

moved out of the locality or jurisdiction in which the

warrant must be sought.”

However, the rule of the Carroll case does not authorize

warrantless searches of automobiles in the absence of “prob-

able cause”. The same must apply to airplanes. As the Su-

preme Court has said of the holding in Carroll v. United

States:

. . this does not mean, as seems to be assumed,

that every traveler along the public highways, may

be stopped and searched at the officers’ whim, caprice

or mere suspicion. . . . Those lawfully within the

country, entitled to use the highways have a right to

free passage without interruption or search, unless

there is known to a competent official authorized to

search, probable cause for believing that their

vehicles are carrying contraband or illegal mer-

chandise.” (Brinegar v. United States, 388 U.S.

160)

B. A Warrant is Necessary to Search an Automobile

Which is Not Mobile. So Must a Warrant Be

Obtained to Make a Like Search of an Immobile

Airplane.

Since the rule which permits an officer to search an auto-

mobile without a warrant is based on the ground that “it

is not practicable to secure a warrant, because the vehicle

can be quickly moved out of the locality or jurisdiction in

which the warrant must be sought”, it is clear that only

mobile vehicles may be searched without a warrant. In

any case where the vehicle is not mobile, as where the De-

fendant has already been taken into custody prior to the

search and the car is parked in the street or in a garage, the

police may not search the car without a search warrant.

That is the specific case here. In New Mexico, the officers

had many hours in which to obtain a search warrant, but

did not do so.

“We are not here confronted with an arrest of de-

fendant in his automobile. Neither are we con-

fronted with a case where law enforcing officers find

it necessary to make a search in a moving auto-

mobile or one which has been temporarily halted and

which may be moved away by the occupant at any

moment. The automobile here searched without a

search warrant was not in movement and was not

occupied by Defendant at the time of the search or

at the time of his arrest. . . . Under these circum-

stances the search of his automobile was unreason-

able. (United States v. Stoffey, 279 F. 2d 924, 929).

In Grants the Appellant was miles from the vehicle and

asleep during the search. (See also on this point: Husty v.

United States, 282 U.S. 694; Hart v. United States, 162 F.

2d 74; Rent v. United States, 209 F. 2d 893; United States

v. Kidd, 153 F. Supp 605). Furthermore, the test for de-

termining whether there is probable cause to support a

warrantless search of an airplane is just as strict as that

for probable cause for the issuance of a search warrant or

for arrest without a warrant. (See: Henry v. United

States, 361 U.S. 98, 102). Here, there is no doubt that this

private airplane is a protected area. The Court of Appeals

seems to say it is a less protected area than a house or auto.

Counsel finds no law in support of that contention ; if this be

a case of first impression for this court, then the Court

should hear it for that reason alone.

C. The Agents Herein Had No Probable Cause to

Search the Subject Airplane; and While Odor

of Contraband May, Along With Other Facts,

Provide a Probable Cause, the Rule is That Such

Information Be Submitted to Neutral and De-

tached Judicial Scrutiny and That a Warrantless

Search Not Be Conducted.

In U. S. v. Lewis, 270 Fed. Sup. 807 the court stated “It

would be a more desirable procedure for a commissioner

before issuing a warrant to require proof of odor and the

affiant’s qualification to recognize the odor”. In Taylor v.

United States, 286 U.S. 1, 6, the Supreme Court stated,

“. .. Officers may rely upon a distinctive odor as a physical

fact indicative of a possible crime; but its presence alone

does not strip the owner of the building of constitutional

guarantees against unreasonable search”. A search should

not be made without a warrant where the opportunity to

obtain a warrant exists (Harris v. U.S., 331 U.S. 145, 191

citing Carol v. U. S., supra).

The record is replete with Weatherman’s testimony that

his only probable cause to search was the odor. Taylor held

that odors alone do not authorize a search without a war-

rant. “If the presence of odors is testified to before a magis-

trate, and he finds the affiant qualified to know the odor and

it is one sufficiently distinctive to identify a forbidden sub-

stance, this court has never held such a basis insufficient to

justify the issuance of a search warrant. (The protection

of the Fourth Amendment) consists in requiring these in-

ferences be drawn by a neutral and detached magistrate

instead of being judged by the officer engaged in the often

competitive enterprise of ferreting out crime. Any assump-

tion that evidence sufficient to support a magistrate’s dis-

interested determination to issue a search warrant will

justify the officer in making a search without a warrant

would reduce the amendment to nullity and leave peoples’

homes secure only in the discretion of police officers (Citing:

U.S. v. Lefkowitz, 285 U.S. 452; and Agnello v. U. S., 269

U.S. 20).” Here, the officers never attempted to secure a

warrant of search.

They did not do so for they knew they had no probable

cause; just odor. Before that fateful sniffing, Weatherman

testified he had nothing that resembled probable cause;

merely suspicion. Taylor says that odors alone do not au-

thorize entry. It is obvious therefor that the judgment of

the Court of Appeals is in direct conflict with Taylor and

other cases as will be herein set forth.

The Court of Appeals cites Cardwell v. Lewis, US.

(42 U.S.L.W. 4928, June 17, 1974) for the proposition

that a search of an automobile is far less intrusive of 4th

Amendment rights than the search of one’s person or home.

Yet that is not the opinion of the majority, or of a plural-

ity, but an opinion in concurrence by Mr. Justice Powell in

Almeida Sanchez v. U. S., 413 U.S. 266, 279. More im-

portantly, the court in Cardwell states “This is not to say

that no part of the interior of an automobile has 4th Amend-

ment protection; the exercise of a desire to be mobile does

not, of course, waive ones right to be free of unreasonable

government intrusion. But insofar as Fourth Amendment

protection extends to a motor vehicle, it is the right of

privacy that is the touchstone of our inquiry. ,

In Cardwell nothing from the interior of the vehicle was

seized or introduced into evidence; merely, paint scrapings

from the exterior.

Additionally there was abundant probable cause in Card-

well, Here there is none.

Unlike the defendant in Cardwell, the appellant did not

have a mobile vehicle; there was no exigent circumstance;

there was no incentive to remove the vehicle because of

consciousness of guilt as in Cardwell; in fact, the appellant

slept through the search and seizure.

Cardwell is not a case for the court to rely on in this in-

stance.

D. A Warrantless Search May Be Made Only in

a Few Specifically Established and Well De-

lineated Situations. These Situations Do Not

Apply to the Case At Bar.

In Aguilar v. Texas, 378 U.S. 108 the Supreme Court

stated: “Informed and deliberate determination of magis-

trates empowered to issue warrants are to be preferred over

the hurried action of officers... who happen to make

arrests”. In Chapman v. U.S., 365 U.S. 610 at 613, citing

Angello v. U.S., supra at p. 32, the Supreme Court said “Be-

lief however well founded that an article sought is concealed

in a dwelling house furnishes no justification for a search

of that place without a warrant. Such search is not unlaw-

ful, notwithstanding facts unquestionably showing probable

cause”. In Vale v. U.S., 399 U.S. 30, 34 the court said “The

Louisiana Supreme Court thought the search independently

supportable because it involved narcotics which are easily

removed, hidden or destroyed, but here... no one else was

in the house. . . .”

Katz v. U.S., 389 U.S. 347, 357 makes it clear that “only

in a few specifically established and well delineated situa-

tions may a warrantless search of a dwelling withstand

Oe ea

constitutional scrutiny even though the authorities have

probable cause to conduct it.” The burden rests on the (Gov-

ernment) to show the existence of such an exceptional sit-

uation. Chimel v. Calif., 395 U.S. 752; U.S. v. Jeffers, 342

U.S. 48, 51; McDonald v. U.S., 335 U.S. 451, 456. Here,

there was no suggestion of consent (Zap v. United States,

328 U.S. 624, 628) ... Officers were not responding to an

emergency (U.S. v. Jeffers, svjiva and McDonald v. U.S.,

supra) ... were not in hot pursuit of a fleeing felon (War-

den v. Hayden, 387 U.S. 287, 289; Chapman v. U.S., supra

at 615; Johnson v. U.S., 333 U.S. 10) . .. The goods were

seized not in the process of destruction (Schmerber v. Cal.,

384 U.S. 757, 770-71; U.S. v. Jeffers, supra; McDonald v.

U.S., supra) ... nor were they about to be removed from the

jurisdiction (Chapman v. U.S., supra; Johnson v. U.S.,

supra; and U.S. v. Jeffers, supra).

Here, there is no possible claim under any of these ex-

ceptions. The case at bar stands “on all fours” within the

law as described in Vale v. U.S., supra, and therefor the

Court of Appeals judgment must be reviewed and reversed.

E. The Search of the Appellant’s Airplane Con-

ducted by Customs’ Agents at Grants, New

Mexico Was Illegal.

It is the Appellant’s contention that any search made at

Liberal Kansas was the product of information received

through a prior illegal search at Grants, New Mexico of

the same subject aircraft. Therefore, it is submitted that

when the Court finds the Grants, New Mexico search as

illegal, the Court must, as a matter of course, suppress all

evidence seized in this case. (Wong Sun V. U.S., 371 U.S. 471,

Silverthorne Lumber Ce. v. U.S., 251 U.S. 385).

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The testimony of Agent Weatherman is very specific on

the points raised in VI D herein. Obviously, there was no

consent, for the Appellant was not near the aircraft when

the search took place. The agents did not have a search

warrant for the airplane (Record on appeal Page 125 in-

clusive of lines 2 and 8).

“Q. Did you have a search warrant for it? A.

No sir, I did not.”

The officers were not in pursuit of a fleeing felon (Record

on appeal, Page 126, lines 5 to 8).

“Q. (By Mr. Kalina) Was Mr. Sigal fleeing from

you at this time, that you made this search? Were

you stopping a fleeing felon? A. No sir, I wasn’t.”

The goods seized were not in the process of destruction

(Record on appeal, Page 126, line 13 to 16).

“Q. Were those goods that were in the front of

the plane, that alleged contraband, were they in the

process of being destroyed? A. No, sir, they

weren't.”

The goods were not about to be removed from the juris-

diction (Record on appeal, Page 126, lines 17 and 18).

“Q. Was Mr. Sigal removing them from the juris-

diction? A. Not to my knowledge.”

Additionally, the officers were not responding to an

emergency. Agent Weatherman in his testimony would

have the Court believe that he was responding to an

emergency. (Record on appeal, page 125, line 8 to page

126, line 4).

a eee

“Q. Were you responding to any kind of an

emergency ‘by searching the plane? A. In my esti-

mation; yes sir, I was.

Q. Really? A. Yes.

Q. What emergency were you responding to?

A. I had no idea when Mr. Sigal was going to re-

turn, or how many people he was going to return

with.

Q. Was this an emergency? A. To me it was.

Q. He was under observation for two or three

weeks, is that not correct? <A. Yes sir.

Q. At no point, up to that point, did you think

there was an emergency, did you? A. No sir, sure

didn’t.

Q. And it was such an emergency that you let him

. take off the next morning when you knew there was

marijuana in the plane didn’t you? A. Yes sir.

Mr. Kalina: I just want the Court to know what

kind of an emergency it was.”

It is respectfully submitted that under the guidelines set

forth in U.S. v. Jeffers, supra and McDonald v. U.S., supra

that this was not an emergency situation at all. Agent

Weatherman’s specious statement (Record on appeal, Page

125, lines 14-15) “I had no idea when Mr. Siga! was going

to return, or how many people he was going to return with,”

is not sufficient basis to warrant an emergency. If Mr.

Sigal was not at the airport; if Mr. Sigal was, in fact, at a

motel; if, in fact, the agents had no knowledge that Mr.

Sigal was armed; if the agents had no idea whether Mr.

Sigal was aware of the presence of agents at the airstrip;

if the weather was to hazardous for flying then these cir-

cumstances certainly do not amount to an emergency situa-

tion. The physical facts contradict the agent’s testimony and

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the Court’s rationale for finding “exigent” circumstances.

As pointed out in the testimony, it was such an emergency

that Mr. Sigal was allowed te teke of the rext mrtg.

Here, we have five agents in two airplanes with a magistrate

eighty miles away at most, and at least nine and as many

as fifteen hours to obtain his signature on a warrant. The

agents made not the slightest move to get a warrant, but

decided to take the law into their own hands, and not sub-

mit their information to neutral and detached judicial

scrutiny. U.S. v. Lewis, supra; Taylor v. U.S., supra.

The Supreme Court has held that a search should not be

made without a warrant where the opportunity to obtain a

warrant exists. Harris v. U.S., supra; Carroll v. U.S., supra.

Weatherman testified he had no probable cause to believe

that a crime was being committed at any time prior to the

smelling operation at Grants, New Mexico. He was not

afraid that Mr. Sigal would flee the jurisdiction (Record on

appeal, page 126, lines 17 & 18);

“Q. Was Mr. Sigal removing them from the juris-

diction? A. Not to my knowledge.”

He did not believe that the goods were being destroyed or

that Mr. Sigal was a fleeing felon up until the time he went

to the plane in Grants, New Mexico. Whereupon, miracu-

lously with one sniff, he becomes fearful that Mr. Sigal

might return with other persons to the plane. Is this an

emergency?

The facts in the case do not warrant such a finding. In

fact, after allegedly smelling this odor of marijuana and

opening the aircraft and searching it without a warrant,

several agents proceeded to leave the airport to obtain food

to sustain them through their vigil.

The only emergency in this case is that the agent felt he

was in an emergency situation when testifying in court, and

rats ‘vo ettvemipfu‘v come up wWitn some’ pasis tor tne searén at

Grants, New Mexico. The search is baseless under all de-

cisions hereinbefore spoken of the Supreme Court of the

United States and for that reason alone the judgment of the

Court of Appeals must be reversed.

F. All Cases Relied Upon By the Court of Appeals

in Affirming the Trial Court’s Denial of the

Appelilant’s Motions to Suppress Real and Oral

Evidence are Either Inapplicable to the Case at

Bar, Are Distinguishable from the Case at Bar

or Actually Support the Defendant’s Positions

Herein.

The District Court in its order denying the Appellant’s

motion to suppress evidence herein relies on the cases of

U.S. v. Miller, 460 F.2d 582; U.S. v. McCormick, 468 F.2d

68 and U. S. v. Anderson, 468 F.2d 280 The court compared

the situations in those cases with the instant case and found

them “on point”. The Appellant respectfully points out to

this Court that there is one large difference between those

cases relied upon by the Court of Appeals and the case at

bar; this is, in all cases relied on by the lower court the

vehicle was mobile. In Miller the vehicle was stopped after

leaving a state park with the driver inside, The same holds

true in McCormick and Anderson; all moving vehicles.

Obviously, the Tenth Circuit Court in Miller, McCormick

and Anderson relied upon the rationale set forth in Coolidge

v. New Hampshire, 403 U.S. 443 and reaffirming the hold-

ing in Chambers v. Maroney, 399 U.S. 42 that the police may

make a legal contemporaneous search of the vehicle stopped

by police officers. That is not our case here. If the court were

Led)

to hold that it is the case here then the necessity for a search

warrant to search any vehicle would be completely obviated.

Obviously, that cannot be the holding here. The appeals

court states that retrospectively it appears that one of the

surveilling agents could have obtained a search warrant;

that counsel has 20/20 hindsight. Yet, the court excuses

this failure and holds the search valid nonetheless. The

Appellant strongly disagrees,

The principles outlined in Chambers Vv. Maroney, supra

and U. S. v. Miller, supra, U. S. v. McCormick, supra, and

U. S. v. Andersen, supra do not apply to the case at bar.

Coolidge v. New Hampshire, supra, decided one year after

Chambers, strictly limits Chambers to its facts and reaffirms

the principles set down in Katz v. U. S., supra.

In Coolidge, the court held that the holding in Chambers

is limited to a legal contemporaneous search, pursuant to

the definition of same in Carroll v. U. S., supra. Only in these

circumstances may the police seize the car and take it to

the police station and search it there. Note, however that the

procedure was strictly proscribed; the vehicle must be taken

to the “station”. Here, there was not even a contemporan-

eous search, as in all cases relied upon in the District Court.

As was stated by the court in Coolidge:

“The second theory put forward by the State to jus-

tify a warrantless seizure and search of the Pontiac

car is that under Carroll v. United States, supra,

the police may make a warrantless search of an auto-

mobiie whenever they have probable cause to do So,

and, under our decision last Term in Chambers v.

Maroney, supra, whenever the police may make a

legal contemporaneous search under Carroll, they

may also seize the car, take it to the police station,

and search it there. But even granting that the police

had probable cause to search the car, the application

of the Carroll case to these facts would extend it far

beyond its original rationale. Carroll did indeed hold

that ‘contraband goods concealed and illegally trans-

ported in an automobile or other vehicle may be

searched for without a warrant,’ provided that ‘the

seizing officer shall have reasonable or probable cause

for believing that the automobile which he stops and

seizes has contraband liquor therein which is being

illegally transported.’ Such searches had been ex-

plicitly authorized by Congress, and, as we have

pointed out elsewhere, in the conditions of the time

‘{a]n automobile . . . was an almost indispensable

instrumentality in large-scale violation of the Na-

tional Prohibition Act, and the car itself therefore

was treated somewhat as an offender and became

contraband.’ In two later cases, each involving an

occupied automobile stopped on the open highway

and searched for contraband liquor, the Court fol-

lowed and reaffirmed Carroll. And last Term in

Chambers, supra, we did so again. The underlying

rationale of Carroll and of all the cases that have

followed it is that there is ‘a necessary difference

between a search of a store, dwelling house or other

structure in respect of which a proper official war-

rant readily may be obtained, and a search of a ship,

motor boat, wagon or automobile, for contraband

goods, where it is not practicable to secure a war-

rant because (emphasis supplied) the vehicle can

be quickly moved out of the locality or jurisdiction

in which the warrant must be sought’. 267 U.S. at

153, 69 L. Ed at 551, 39 ALR 790. (Emphasis sup-

plied).

As we said in Chambers, supra, at 51, 26 L. Ed. 2d

at 428, ‘exigent circumstances’ justify the warrant-

}

less search of ‘an automobile stopped on the high-

way’ where there is probable cause, because the car

is ‘movable, the occupants are alerted, and the car’s

contents may never be found again if a warrant must

be obtained.” [T]he opportunity to search is fleet-

ing... .” (Emphasis supplied) ...

Here, there was ample time to obtain a search warrant.

Here, there was no fleeting opportunity to search the

“vehicle”. It was practicable to secure a warrant. None

was secured. No attempt was even made.

The question then is whether Agent Weatherman could

have made a legal contemporaneous search of the vehicle

under Katz and Coolidge. The answer is a resounding no.

Weatherman did in fact conduct an exploratory warrant-

less search.

As the courts stated in Coolidge:

“The word ‘automobile’ is not a talisman in whose

presence the Fourth Amendment fades away and

disappears. And surely there is nothing in this case

to invoke the meaning and purpose of the rule of

Carroll v. United States—no alerted criminal bent

on flight, no fleeting opportunity on an open high-

way after a hazardous chase, no contraband or stole

goods or weapons, no confederates waiting to move

the evidence, not even the inconvenience of a special

police detail to guard the immobilized automobile.

In short, by no possible stretch of the legal imagina-

tion can this be made into a case where ‘it is not

practicable to secure a warrant,’ Carroll, supra, at

153, and the ‘automobile exception,’ despite its label,

is simply irrelevant.”

In a case strikingly similar to the case at bar, the Court

of Appeals in United States v. Payne, 429 F. 2d 169 (CA9

1970) struck down the search.

“In that case, two couples were camping in an indi-

vidually allotted campsite in Yosemite National

Park. During the evening, an off-duty policeman

camping with his family in an adjoining site ob-

served the two couples smoking a substance he be-

lieved to be marihuana and also observed them mak-

ing what he thought ‘furtive’ movements to remove

objects he thought to be drugs from the glove com-

partment of a car parked nearby. He summoned a

park ranger, and the two entered the campsite.

They found that one of the couples was preparing

to bed down for the night, while the couple to whom

the car belonged were visiting in another campsite.

The officers searched the unoccupied parked auto-

mobile, found 12 seconal capsules, and arrested the

couple who had stayed behind. The Government at-

tempted to uphold the search under Carroll supra,

and Brinegar, supra. The Court of Appeals an-

swered:

“While it is true that the Supreme Court has enun-

ciated slightly different rules concerning a search of

an automobile without a warrant, the rationale is

apparently based upon the fact that a ‘vehicle can

be quickly moved out of the locality or jurisdiction

in which the warrant must be sought’. Chimel v.

California (supra) ... In the instant case the search

of the Volkeswagen cannot be justified upon this

reasoning. There is no indication in the record that

the appellant or any of his party were preparing to

leave, and quite to the contrary it is clear that ap-

pellant was bedding down for the evening and that

there was ample time to secure the necessary war-

;

rant for the search of the car had [the Park Ranger]

believed there was probable cause to seek one.” 429

F2d, at 171-172.

The conclusion is inescapable that the 9th and 10th Cir-

cuit Courts are in open conflict, one that must be resolved

by this court.

Here, the agents knew Sigal had bedded down for the

night. He had landed due to very poor flying weather.

(Record on appeal Page 101, lines 24 to 25).

(By Mr. Kalina)

“Q. Did it rain that night in Grants? A. Yes sir,

it sure did.”

(Record on appeal, Page 103, lines 1-2).

(By Mr. Kalina)

“Q. Would it be safe procedure to fly in it? A.

No, sir.”

and again (Record on appeal, page 103, line 13).

“A. No sir, I wouldn’t have flown through that rain-

storm.”

The Agents knew Sigal had gone to a motel. (Record on

appeal Page 103, lines 17-18)

“Q. You knew Mr. Sigal was going to a motel

didn’t you? A. That is what the airport manager

told me.”

The Defendant’s position can best be upheld by the testi-

mony of Agent Weatherman (Record on appeal Page 50,

line 21 to Page 51, line 4).

“A. At this time I didn’t want to stay around the

aircraft very long for fear of Mr. Sigal seeing me for

The

facts:

the second or third time, and so I parked my aircraft

where it couldn’t be seen, and then approximately an

hour and a half to two hours later, yes sir, I did. I

went up to the aircraft for a closer examination of

the aircraft when it became apparent that Mr. Sigal

was not going to come back to the airport shortly,

or it appeared that he wasn’t.

court in Coolidge, rightly limited Chambers to its

“Chambers, supra, is of no help to the state, since

that case held only that, where the police may stop

and search an automobile under Carroll, they may

also seize it and search i: later at the police station.

Rather, this case is controlled by Dyke v. Taylor

Implement Mfg., 391 U.S. 216, supra. There the

police lacked probable cause to seize or search the

defendant’s automobile at the time of his arrest, and

this was enough by itself to condemn the subsequent

search at the station house. Here there was probable

cause, but no exigent circumstances justified the

police in proceeding without a warrant. As in Dyke,

the later search at the station house was therefore

illegal.”

Here the police did not stop and search a vehicle that they

had suspicions about. Sigal stopped the plane himself and

was far away, safely tucked into bed at a motel when the

illegal governmental entry was made.

The court in Coolidge further stated:

“no amount of probable cause can justify a warrant-

less search or seizure absent ‘exigent circumstances,’

Incontrovertible testimony of the senses that an in-

criminating object is on premises belonging to a

criminal suspect may establish the fullest possible

Ul RRA li cd a ed

measure of probable cause. But even where the ob-

ject is contraband, this Court has repeatedly stated

and enforced the basic rule that the police may not

enter and make a warrantless seizure. Taylor v.

United States, (supra) ; Johnson v. United States,

(supra); McDonald v. United States, (supra) ;

Jones V. United States, 357 US 493, 497-498, 2 L Ed

2d 1514, 1518, 78 S Ct 1253; Chapman v. Uniied

States, (supra) ; Trupiano v. United States, 334 US

699, 92 L Ed 1663, 68 S Ct 1229.”

“Where the discovery is anticipated, where the police

know in advance the location of the evidence and

intend to seize it, the situation is altogether different.

The requirement of a warrant to seize imposes no

inconvenience whatever, or at least none which is

constitutionally cognizable in a legal system that

regards warrantless searches “per se unreasonable”

in the absence of “exigent circumstances.”

Here in the plainest language, the court, one year after

Chambers, reaffirms all prior rulings so that there can be

no misunderstandings about the legal requisite search in a

situation such as at bar here. The court held, in Coolidge,

that the seizure was unconstitutional; as were the fruits of

the poisoned tree.

“The seizure was therefore unconstitutional, and so

was the subsequent search at the station house. Since

evidence obtained in the course of the search was

admitted at Coolidge’s trial, the judgment must_be

reversed and the case remanded to the New Hamp-

shire Supreme Court. Mapp v. Ohio, 367 US 643, 6

L Ed 2d 1081, 81 S Ct 1684, 84 ALR 2d 933.”

Here there was no emergency. The weather for Sigal and

for the agents that night in Grants was the same. How

could it have been too bad for the agents to fly 80 miles to

get a warrant yet be good enough for Sigal to flee in? The

Court of Appeals as well as the trial court has refused to

observe one glaring physical fact; the weather. Both courts

state that the agents are to be excused from seeking a war-

rant of search in Albuquerque because of bad weather. They

could not fly; hence they were unable to even try.

Yet it seems that the bad weather that forms the excuse

for failing to attempt to obtain a search warrant for the

agents somehow miraculously is clear weather enabling the

appellant to fly away at any time.

Did Sigal have the power of Moses to part the storm

clouds and fly away, only to close them to the pursuing

agents?

Why were the physical facts ignored by the Court of

Appeals? Their decision is based on glaring error of fact.

As in Coolidge, the procedure here was unconstitutional.

Chambers may be limited by its own language:

“On the facts before us, the blue station wagon could

have been searched on the spot when it was stopped

since there was probable cause to search and it was

a fleeting target for a search. The probable-cause

factor still obtained at the station house and so

did the mobility of the car unless the Fourth Amend-

ment permits a warrantless seizure of the car and

the denial of its use to anyone until a warrant is

secured. In that event there is little to choose in

terms of practical consequences between an imme-

diate search without a warrant and the car’s im-

mobilization until a warrant is obtained. The same

consequences may not follow where there is unfore-

seeable cause to search a house. (Compare Vale v.

mY enemies

DG eave LA: watoie

United States, supra.) But as Carroll, supra, held,

for the purposes of the Fourth Amendment there is

a constitutional difference between houses and cars.”

What is meant is a moving vehicle. Here, we have no

moving vehicle. So the reason for the rule is obviated.

The rationale of Chambers is one of the probability of

flight and loss of the subject vehicle which the police sus-

pected had guns and stolen money and the occupants in con-

trol of it. Also, the police were suspicious of this before.

They stopped the car and it was for this reason, among

others, that the car was stopped. The only alternative

there would have been to let the car go. That is not our

case. Appellant had no control over the airplane. For the

foregoing, seizure in this case must fall and the Court of

Appeals’ judgment must be reviewed and reversed.

2. THE UNITED STATES COURT OF APPEALS FOR THE

TENTH CIRCUIT DECIDED THE QUESTION OF ADMISSABILITY

OF THE DEFENDANT'S STATEMENT, A FEDERAL QUESTION, IN A

WAY WHICH IS IN CONFLICT WITH APPLICABLE DECISIONS OF

THIS COURT.

It is obvious from the testimony of Agent Weatherman

and from the testimony of the three young employees at

Liberal Kansas airport that any statement Mr. Sigal made

was at gun point, under duress, and is inadmissible as a

matter of law under the Fifth and Sixth Amendments to

the United States Constitution. The agent would have the

court believe that Mr. Sigal responded “the grass” when

asked initially what was in the plane. At the time Mr.

Sigal got out of the plane at Liberal Kansas, the agent,

through his illegal search, believed Mr. Sigal had committed

a crime of possession of marijuana. (Record on appeal

Page 76, Lines 23 to Page 77 Line 11).

“Q. You knew in your own mind that there was

marijuana in the plane, did you not? A. Yes sir.

Q. Okay, You knew that because you searched it

the night before in Grants? A. No sir, I did not

search the aircraft.

Q. Did you take out a bag the night before from

the front of the plane and find 20 pounds of mari-

juana as you testified? A. I opened the front bag-

gage compartment.

Q. And, you opened a box? A. Yes sir.

Q. And that is not a search? A. Yes sir, it is.”

The agent did not inform Mr. Sigal of his rights prior to

any questioning. In fact, the alleged incriminating state-

ment of “the grass” was made before any rights were given

according to direct testimony of Agent Weatherman. (Rec-

ord on appeal Page 65, Lines 15 to 25).

“A. . . . And, he turned around. At that time I

told him who I was. I identified myself as a Special

Agent of the United States Customs. And I asked

him what he had in his airplane.

Q. What did he say? A. At this time Mr. Sigal

replied that he had “grass” in there.

Q. What happened next? A. Agent Shockley,

who was standing beside me, by this time told Mr.

Sigal he was under arrest, and advised him of his

constitutional rights.”

Therefore, even without the question of coercion, the

court must find that the Appellant (whom the agent be-

lieved had committed a crime) was questioned, albeit one

question, without advising him of his constitutional rights.

This invoked the very answer, “the grass,” that the court

used as a basis to find “probable cause,” “knowledge” and

“inten ”

Under all the facts and circumstances of the incident,

the Court must find that any statement made by Mr. Sigal

at Liberal is inadmissible as being involuntary and being

made under duress.

i The Court of Appeals states ( app. page 14a). “Any pos-

4 sible error in connection with Sigal’s statement at the time

of his arrest that he had ‘grass’ in his plane, which under

the circumstances is difficult to see, is harmless beyond rea-

sonable doubt. Accordingly we need not here be concerned

with whether the utterance was voluntary, or made under

duress. Independent of this one word utterance is over-

whelming evidence that Sigal did in fact possess 445 pounds

: of marijuana. And the quantity involved permits the in-

ferences that he possessed marijuana with an intent to dis-

, tribute it.”

The Appeals court totally disregards the fact that the

Trial Court did not use that inference to find knowledge

and intent.

The enormity of the Court’s error in admitting the state-

ment “the grass” is best illustrated in the verdict of the

court upon the trial of this action (volume 3, page 15, lines

2-7).

“. . . And, of course, the quantity of it, and, of

course, the Court has already overruled the motion

to suppress the statement. He admitted—he appar-

ently said it was, “Grass”, which the Court would

take to show his intent that he knew that he was

carrying the stuff.”

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“

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Obviously the Court relied upon the Appellant’s state-

ments, solely, as indicating knowledge and intent, requisite

elements needed to be proved by the government in order to

have the trier of the facts find the Defendant guilty. The

statement should not have been admitted into evidence and

the conviction therefore must be reserved.

3. THE CASE INVOLVES IMPORTANT QUESTIONS OF FEDERAL

LAW WHICH Have Not BEEN BUT WHICH SHOULD BE

SETTLED By THis Court, As FoLLows:

(a) Is an airplane a protected area under the

Fourth Amendment? If so, is an airplane a less pro-

tected area than an automobile because of its potential

range and speed?

(b) Is probable cause to believe contraband is in an

immobile airplane sufficient to permit a search without

a warrant?

airplane “exigent circumstances” per se?

| (d) Is odor of contraband alone sufficient to form

the basis for probable cause?

(e) Can an appellate court find that requisite ele-

ments of a crime have been proven beyond a reasonable

doubt by inferences in the record when the trial court,

sitting as trier of the facts, specifically found those

requisite elements proven by use of a constitutionally

impermissable statement of the defendant?

The issues herein raised are spoken of at length in Sec-

tion VI (1 and 2) herein and to set forth same here at length

would be duplicatous. These issues are of first impression

and should be decided by this court.

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4. THis Court’s PowER OF SUPERVISION IS CALLED For IN

THIS CASE BECAUSE THE TRIAL COURT SO DEPARTED

FROM THE ACCEPTED COURSE OF FEDERAL PROCEEDINGS

BY:

(a) Admitting into evidence alleged contraband that

was illegally seized in violation of che 4th Amendment

to the United States Constitution

‘(b): Admitting into evidence statements of the De-

fendant that were obtained in violation of his rights

ander the Fifth and Sixth Amendments to the United

States Constitution

evidence the aforementioned illegally obtained alleged

contraband, and by using the aforementioned illegally

obtained statement to specifically find that the defend-

ant knew he possessed contraband and that he intended

‘to possess contraband. |

VIII. Conclusion

Wherefore, petitioner prays that a writ of certiorari

be issued to review the judgment of the United States

Court of Appeals for the Tenth Circuit, in the above-

entitled case.

Respectf ully submitted,

ROBERT I. KALINA

Attorney for Defendant

OWEN J. REDMOND

CHRISTOPHER REDMOND

Of Counsel

SAMOS ELE AL AES

Appendix A—Table of Amendments

Amendment IV—Searches and Seizures

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

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no 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. (U.S.C.A.

Const. Amend. IV, p. 361)

Amendment V—Capital Crimes; Double Jeopardy; Self-

Incrimination; Due Process; Just Com-

pensation for Property

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

wise 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 offense to be twice put in jeopardy of life or

limb; nor shall be compelled in any criminal case to be a

witness against himself, nor be deprived of life, liberty, or

property, without due process of law; nor shall private

property be taken for public use, without just compensa-

tion. (U.S.C.A. Const. Amend. V, p. 4)

Amendment VI—Jury Trial for Crimes, and Procedural

Rights

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of

the State and district wherein the crime shall have been

committed, which district shall have been previously ascer-

tained by law, and to be informed of the nature and cause

wb: ' PPP BE ERG LI WELLE POLS POR Og oh Pm

Appendix A—Table of Amendments

of the accusation; to be confronted with the witnesses

against him; to have compulsory process for obtaining wit-

nesses in his favor, and to have the Assistance of Counsel

for his defense. (U.S.C.A. Const. Amend. VI, p. 4)

P RES

Appendix B—Statute

21 USCS § 841. Prohibited Acts A—Penalties

(a) Except as authorized by this title, it shall be unlawful

for any person knowingly or intentionally—

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

with intent to manufacture, distribute, or dispense, a con-

trolled substance;

HIG ATER OLD IE ED

‘

;

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Appendix C—Opinion of the United States

Court of Appeals

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

No. 73-1934

Appeal from the United States District Court

for the District of Kansas

(D.C. W-CR-1535)

ay.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Barry SIGAL, a/k/a Barry Edwards,

a/k/a David Allen Spector,

Defendant-Appellant.

«x

Stephen K. Lester, Assistant United States

Attorney, (Robert J. Roth, United States

Attorney, on the brief), for Plaintiff-

Appellee.

Robert I. Kalina (Christopher Redmond, on

the brief), for Defendant-Appellant.

Appendix C—Opinion of the United States

Court of Appeals

Before LEwiIs, Chief Judge, and MCWILLIAMS

and BARRETT, Circuit Judges.

MCWILLIAMS, Circuit Judge.

This is a search and seizure case. Barry Sigal was con-

victed in a trial to the court of unlawfully possessing 445

pounds of marijuana with an intent to distribute in viola-

tion of 21 U.S.C. § 841(a) (1). Prior to trial, Sigal filed a

motion to suppress the use upon trial of the 445 pounds of

marijuana obtained by United States Customs Agents from

his airplane in Liberal, Kansas, on the grounds that such

was obtained in an unlawful search and seizure. Also, Sigal

sought to suppress the use upon trial of certain statements

he made to the arresting agents at the Liberal, Kansas, air-

port on the grounds that such had been made under duress

and prior to the time he had been advised of his constitu-

tional right to remain silent. After an extended evidentiary

hearing, the trial court denied the motion to suppress.

When the matter came on for trial, Sigal waived his right

to jury trial and the case was tried on the basis of various

stipulations, which included the right of the trial court to

consider the testimony given at the hearing on the motion

to suppress. No other evidence was offered by either side.

Based, then, on such evidentiary matter, the trial court

found Sigal guilty of having violated 21 U.S.C. § 841(a)

(1). Sigal now appeals his conviction, and we affirm.

The principal matter on appeal is whether the Govern-

ment obtained the 445 pounds of marijuana from Sigal’s

airplane at the Liberal, Kansas, airport in a search and

Nh dale RN AI ad aA a

oe pee

Pa scassdosnce

a EN et os a i

Appendix C—Opinion of the United States

Court of Appeals

seizure which had been tainted by a prior unlawful intru-

sion. Our study of the matter leads us to conclude that the

search and seizure was a lawful one, even though no search

warrant had ever been issued, because the search and

seizure was based on probable cause under exigent circum-

stances which obviated any necessity to obtain a search war-

rant. The facts as developed at the hearing on the motion

to suppress will be summarized briefly in order to give

meaning to our conclusion.

Barry Sigal crossed the border into the United States

from Mexico at El Paso, Texas, under circumstances which

aroused the suspicion of the Customs Inspector. Among

other things, Sigal tried to “palm” a key bearing a tag

marked “N4270T.” The inspector related the circumstances

of Sigal’s entry to one Jerald G. Weatherman, a special

agent for the United States Customs. Weatherman was the

only witness called by the Government at the hearing on

the motion to suppress and this recital is necessarily based,

in the main, on his testimony. Sigal did not himself testify

at the suppression hearing, though he did call three em-

ployees of the Liberal Airport, who testified concerning

Sigal’s arrest.

Armed with the information which he had acquired from

tne Customs Inspector, agent Weatherman went to the El

Paso International Airport and located a Piper Cherokee-6

airplane bearing the number “N4270T.” Four of the six

seats inside the Piper had been removed and approximately

20 flattened-out cardboard boxes and two large boxes that

were sealed occupied the space where the seats had been.

Weatherman watched this plane until late in the evening,

when he was relieved by another agent. Weatherman was

Appendix C—Opinion of the United States

Court of Appeals

advised the following day by the agent who had relieved him

that the Piper had taken off about 2:30 A. M. and was fol-

lowed by Customs Agents to the airport in Wilcox, Arizona,

where somehow the agents lost contact with the Piper

Shortly thereafter word was received that the Piper had

landed in Holbrook, Arizona, and Weatherman proceeded at

once to Holbrook where he observed the Piper bearing num-

ber N4270T. Weatherman testified that he saw Sigal enter

the Piper and take off. Weatherman followed Sigal in a

Government plane to Long Beach, California. Weatherman

was then called off the case.

About ten days later, Weatherman was contacted in El

Paso by another Customs agent who informed him that

numerous boxes had been loaded into Sigal’s plane in Los

Angeles, and that Sigal’s plane had then taken off with a

Customs aircraft in pursuit. Weatherman, as requested,

took off in another Government plane and made visual con-

tact with Sigal’s plane and the other Customs aircraft near

Holbrook, Arizona. The two Customs planes followed Sigal’s

airplane as it apparently headed towards Albuquerque, New

Mexico. However, before reaching Albuquerque, Sigal’s

plane turned sharply to the left and landed at Grants, New

Mexico, some ninety miles west and north of Albuquerque.

The Customs planes maintained aerial surveillance for

about an hour and then, when it became obvious that Sigal

had landed for something other than refueling, they too

landed. What happened thereafter in Grants, New Mexico,

is of paramount importance.

Upon landing in Grants, Weatherman learned from air-

port employees that although Sigal had gone to a local

motel, “he said he would be back as soon as it [presumably

ACA avi SS ARABIA ltd ani aoa mania

Beene RIT LEE

Appendix C—Opinion of the United States

Court of Appeals

the plane] got cool.” At this time Weatherman looked in-

side the suspect aircraft and saw numerous large card-

board boxes. Upon an inspection around the air vents,

Weatherman detected what he described as the “strong

odor of marijuana.” After revealing this fact to a fellow

agent, Weatherman checked the door of the aircraft, which

he found to be locked. However, upon further investigation,

he found the front baggage compartment to be unlocked.

Weatherman testified that he then opened this compart-

ment, reached inside and opened one of the large cardboard

boxes which had been sealed with masking tape. Inside the

box Weathermar saw that which he believed to be some 20

pounds of marijuana. He later resealed the cardboard box

and closed the baggage compartment. Weatherman and his

fellow agent then waited for Sigal to return to his plane.

Sigal did not return to his plane until early the follow-

ing morning, when it was just beginning to get light. Sigal

then took off, followed shortly thereafter by the Govern-

ment planes.

Sigal next flew to Liberal, Kansas, where he landed his

plane. The Government planes landed very shortly there-

after. Sigal got out of his plane and was thereupon arrested

by the Customs agent. Weatherman testified that he iden-

tified himself as an agent and inquired as to what was in

the plane, to which Sigal replied, “grass.” Weatherman

then asked if he could have the key so as to search the

Piper, to which inquiry Sigal stated that the aircraft was

unlocked. Weatherman thereupon searched the Piper and

removed cardboard boxes containing some 445 pounds of

marijuana.

Appendix C—Opinion of the United States

Court of Appeals

As indicated, Sigal did not testify at the hearing on the

motion to suppress, though he did call as witnesses three

employees from the Liberal, Kansas, Airport. Each testi-

fied as to what he saw and heard at the time of the arrest,

with emphasis being made of the fact that at least some

of the Customs agents drew their guns.

The main thrust of Sigal’s search and seizure argument

is that Weatherman’s search of Sigal’s plane in Grants,

New Mexico, was an unlawful one, and that the subsequent

search and seizure in Liberal, Kansas, was thereby ren-

dered unlawful under the fruit of the poisonous tree doc-

trine. Wong Sun v. United States, 371 U.S. 471 (1963).

Let us now analyze Weatherman’s search of Sigal’s plane

in Grants, New Mexico.

Weatherman’s search and inspection of Sigal’s aircraft

in Grants, New Mexico, was conducted without the sanction

of a search warrant. However, the absence of a search

warrant does not necessarily mean that Weatherman’s

search of Sigal’s plane was unreasonable under the Fourth

Amendment. Under the authorities, if Weatherman’s

search was in fact based on probable cause and if there ex-

isted exigent circumstances which made impractical and

unreasonable the obtaining of a search warrant prior to

conducting a search of Sigal’s aircraft, then Weatherman’s

search was not itself unreasonable, and was lawful. Cham-

bers v. Maroney, 398 U.S. 42 (1970); Carroll v. United

States, 267 U.S. 1382 (1925): and United States v. Pollard,

466 F.2d 1 (10th Cir. 1972), cert. denied, 409 U.S. 1127

(1973). Before considering the issues of “probable cause”

and “exigent circumstances,” as such relate to the facts of

the instant case, we do note that we are not here concerned

VES PE RPIE ILIA bin Oe a ga ~ - 7

10a

Appendix C—Opinion of the United States

Court of Appeals

with a search of a home, but of an airplane, which certainly

is as mobile, if not more so, than an automobile. The search

of an automobile, for example, is far less intrusive on

Fourth Amendment rights than the search of one’s person

or home. Cardwell v. Lewis, — U.S. —, 42 U.S.L.W. 4928

(June 17, 1974); and Almeida-Sanchez v. United States,

413 U.S. 266 (1973). Clearly, then, the mobility of the

thing searched in the instant case is a most significant

factor in determining whether Weatherman’s search of

Sigal’s aircraft was constitutionally permissible.

Our study of the record leads us to conclude that Weath-

erman did have probable cause to search Sigal’s aircraft in

the airport at Grants, New Mexico. Weatherman knew of

the suspicious circumstances under which Sigal crossed the

border in El Paso, Texas. Weatherman then himself fol-

lowed Sigal all over the southwest. The facts concerning

Sigal’s suspicious conduct prior to his flight from Los An-

geles to Grants have not been detailed in this opinion, but

they are in the record, and may of course be considered in

our determination as to whether Weatherman had probable

cause when he searched the plane in Grants, New Mexico.

In the light of Sigal’s prior suspicious conduct, any possible

doubt as to probable cause was dispelled when, at the Grants

airport, Weatherman detected the strong odor of marijuana

emanating from the vents of Sigal’s aircraft. Under such

circumstances, Weatherman indeed had probable cause to

believe that marijuana was in Sigal’s aircraft. United

States v. McCormick, 468 F.2d 68 (10th Cir. 1972), cert.

denied, 410 U.S. 927 (1973) ; United States v. Miller, 460

F.2d 582 (10th Cir. 1972).

ee eid EA! errata

lla

Appendix C—Opinion of the United States

Court of Appeals

Counsel argues that even assuming the existence of prob-

able cause, the search was an unlawful one inasmuch as

there were no exigent circumstances which prevented

Weatherman from obtaining a search warrant before

searching the plane. It is agreed that the nearest available

Magistrate was in Albuquerque, New Mexico, 90 miles dis-

tant from Grants. Counsel in this regard emphasizes that

Sigal was in Grants, New Mexico, for approximately 15

hours before departing for Liberal, Kansas, which provided

ample time for Customs agents to drive to Albuquerque and

obtain a search warrant.

Much of counsel’s argument on the lack of exigent cir-

cumstances is based on 20/20 hindsight. Based on all of

the facts and circumstances, the trial court concluded that

exigent circumstances did exist. We agree. In fact, the

trial court’s findings adequately sum up our views on the

matter, and we repeat them here. In this connection the

trial court commented as follows:

“Probable cause by itself does not justify a war-

rantless search. In addition, there must be ‘exigent

circumstances’ which preclude the securing of a war-

rant. The testimony shows that a period of as long

as fifteen hours intervened between the time Agent

Weatherman searched the baggage compartment and

the time defendant departed the Grant-Milan air-

field. Retrospectively, it appears one of the surveil-

ling agents could have driven or flown to Albu-

querque, some 160 miles round-trip distance, and

procured a warrant. However, the Court is con-

cerned with the facts and circumstances as they

appeared to the agents at the time. The prime fact to

be considered is the airplane which defendant was

12a

Appendix C—Opinion of the United States

Court of Appeals

flying. An airplane is exceedingly mobile and can

carry its pilot for great distances in any direction.

Moreover, the agents had no inkling as to defendant’s

schedule, he could have returned and departed at any

time. Secondly, the agents did not know if defendant

was acting alone. Someone else could have appeared

j and either unloaded the plane or taken off. Conse-

quently, the agents not only had to be concerned

with the defendant, but also with the possibility of

others appearing on the scene. Thus, they could not

afford to disengage an agent or an airplane. Finally,

there is the testimony as to the weather conditions

that night. Apparently there were storms in the

area which would have made flying hazardous. Com-

bined, these facts and circumstances were of such

exigency as to obviate the necessity for a warrant.

Here, there is presented the classic case of law en-

forcement officials confronted with a highly mobile

vehicle and complete uncertainty as to its future use

or ultimate destination. These facts and circum-

stances likewise are well within the holdings in

Miller and McCormick.”

As indicated, in the main counsel challenges the presence

of exigent circumstances. In this regard, with reference

to the Government’s lengthy surveillance of Sigal, any

suggestion that exigent circumstances cannot be claimed at

the time of the search in Grants because, well before that

time, the agents were purportedly aware of probable cause

sufficient to seek a search warrant, but did not do so, is

fully answered in the Supreme Court’s most recent auto-

mobile search case, Cardwell v. Lewis, supra. We agree

with the following observation from Justice Blackman’s

plurality opinion: “Assuming that probable cause previ-

AEE WEE ANE os cos”

RR ME FTE

13a

Appendix C—Opinion of the United States

Court of Appeals

ously existed, we know of no case or principle that suggests

that the right to search on probable cause and the reason-

ableness of seizing a car under exigent circumstances are

foreclosed if a warrant was not obtained at the = eed

ticable moment.”

In sum, then, for the reasons set forth above, we conclude

that Weatherman’s search of Sigal’s plane in Grants, New

Mexico, was not offensive to the Fourth Amendment and

that he could have, if he had been so inclined, seized the

marijuana at the Grants airport and proceeded to arrest

Sigal forthwith. The fact that he determined to continue

the pursuit a bit further to see what developed does not

render his search and inspection of Sigal’s plane improper.

Accordingly, what thereafter occurred at the airport in

Liberal, Kansas, was not the fruit of any tree that had

been poisoned in Grants, New Mexico. 7

Nor do we believe that Sigal’s arrest in Liberal, Kansas,

or the search of his plane at the airport in that city were

themselves constitutionally infirm. For all the reasons set

forth above, the Customs agents had ample probable cause

to arrest Sigal without first obtaining a search warrant.

And the ensuing search of his plane was justified under

such authorities as Chambers v. Maroney, supra; Carroll

v. United States, supra; and United States v. Pollard, supra.

To reiterate, we deem the search and seizure matter to

be the real issue in this appeal. The other matters argued

here are in our view minor and merit no particular men-

tion. It should be remembered that this case was by agree-

ment tried to the court on the basis, in the main, of testi- |

mony adduced at the hearing on the motion to suppress.

At such hearing, there was no error in permitting Weather-

‘ r , PR EL ERG RIE OA TELESIS

nee ee Co ss

l4a

Appendix C—Opinion of the United States

Court of Appeals

| man to relate information which he had acquired from

other Customs agents in determining the question of prob-

able cause. Cf. United States v. McCoy, 478 F.2d 176 (10th

Cir. 1973), cert. denied, U.S. , 42 U.S.L.W.

3195 (Oct. 9, 1973). Nor was there any error at the hearing

on the motion to suppress in the trial court’s refusing to let

counsel inspect a report which Weatherman had not himself

prepared, and to which he apparently referred for the

limited purpose of refreshing his memory as to a proper

name. Lastly, any possible error in connection with Sigal’s

statement at the time of his arrest that he had “grass” in

his plane, which under the circumstances is difficult to see,

is harmless beyond reasonable doubt. Accordingly, we need

not here be concerned with whether the utterance was vol-

untary, or made under duress. Independent of this one

word utterance is overwhelming evidence that Sigal did in

fact possess 445 pounds of marijuana. And the quantity

involved permits the inferences that he possessed the mari-

_ juana with an intent to distribute it. United States v. King,

485 F.2d 353 (10th Cir. 1973).

Judgment affirmed.

l5a

Appendix D

Order of the United States District Court

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

FILED

May 30 1973

ARTHUR G. JOHNSON, Clerk

By JACK CRAWLEY, Deputy

Case No. W-CR-1501

UNITED STATES OF AMERICA,

Plaintiff,

vs.

Barry SIGAL, a/k/a Barry Edwards,

a/k/a David Allen Spector,

Defendant.

. 4

ORDER DENYING DEFENDANT’S

MOTION TO SUPPRESS EVIDENCE

The defendant herein is charged by indictment with the

importation and possession of 445 pounds of marijuana, in

violation of 21 U.S.C.A. §960(a). He is charged, in addi-

tion, with possessing the marijuana with intent to distri-

bute, in violation of 21 U.S.C.A. $841(a) (1). Finally, he is

charged both with possession with intent to distribute in

violation of 21 U.S.C.A. §841(a) (1), and with possession,

ey | sia |

16a

Appendix D

Order of the United States District Court

in violation of 21 U.S.C.A. §844(a), of a quantity of

cocaine. All five counts arise from one series of events

which culminated with his arrest by agents of United States

Customs on July 24, 1972. Presently before the Court is

defendant’s motion to suppress all evidence seized by the

customs agents at the time of his arrest. Having examined

the testimony of the various witnesses and the authorities

cited, the Court makes the following findings and orders.

Any inquiry into the validity of a search and seizure must

start with the fundamental proposition that “searches con-

ducted outside the judicial process, without prior approval

by judge or magistrate, 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, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

One exception to the warrant requirement was first recog-

nized in Carroll v. United States, 267 U.S. 182, 45 S.Ct. 280,

69 L.Ed. 453 (1925). In that case, the Supreme Court recog-

nized an intrinsic difference for Fourth Amendment pur-

poses between structures such as dwellings and highly

mobile vehicles such as automobiles, and held that a war-

rantless search of a vehicle may be conducted when the

seizing officer has probable cause to believe the vehicle is

carrying contraband, although under similar circumstances

the search of a dwelling would require a warrant. In a

later decision, the Supreme Court affirmed the decision in

Carroll, noting that an automobile may not be searched

without a warrant in every circumstance, However, since

an automobile is readily movable, if an effective search is

to be made either the search must be immediately made or

17a

Appendix D

Order of the United States District Court

the vehicle seized. For constitutional purposes, the Court

found no difference between an immediate search without a

warrant and seizing and holding the vehicle for a subse-

quent search, both require probable cause. Accordingly, the

Court upheld a warrantless search of a vehicle after it

had been removed to the police station. Chambers v.

Moroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed. 2d 419

(1970). The rationale given was that there were exigent

circumstances preventing an immediate search and so long

as probable cause still obtained, the warrantless search

was not illegal.

In several recent decisions the Tenth Circuit Court of

Appeals has had occasion to apply the Carroll-Chambers

exception to factual settings akin to that presented in this

case. The lead case is United States v. Miller, 460 F.2d 582

(10th Cir. 1972). There, border patrol agents first dis-

covered three large duffel bags hidden adjacent to a state

park from which they identified the odor of marijuana.

They then conducted a surveillance stakeout of the park.

Shortly after discovery of the bags, a customs agent stopped

two trucks, a Ford van and a-Chevrolet pickup, in which

three of the defendants were riding. In the course of a

search of one of the vehicles, he discovered three marijuana

seeds. He then notified other agents and the U. S. Border

Patrol of the incident and the description of the vehicles.

Later that day, a self-contained mobile home entered the

park. Three occupants left the mobile home and began

searching for something in the west area of the park.

Eventually they reappeared, carrying several bags, which

they deposited near a road on the south side of the park.

18a

Appendix D

Order of the United States District Court

Shortly thereafter the Ford van arrived and parked beside

the mobile home. Later, four persons left the mobile home

and walked south towards the Mexican border. They re-

turned some two and one-half hours later carrying large

bags. They joined four other persons who had left the

mobile home and gone to the south side of the park where

they appeared to the agents to be bundling something on

the ground. Early the next morning both vehicles left the

park. The agents. pursued and stopped both vehicles. A

search of the mubile home yielded 512 pounds of marijuana.

Viewing the circumstances as they would have appeared

to prudent, cautivus and trained police officers, the Court

held the warrantless search of the mobile home reasonable

under the totality of the facts and circumstances. The prob-

able cause element was met by the detection of the odor of

marijuana emanating from the bag, combined with the sus-

picious activities of the defendants and the fact that the

park area was ideally suited for smuggling activities.

Among the exigent circumstances justifying the search, the

Court noted that the number of persons involved was un-

known; there were a continuing series of activities the ulti-

mate duration of which was unknown; and there were two

vehicles involved. Under these circumstances, the Court

held a search warrant was unnecessary, although in retro-

spect one could have been obtained.

The next decision pertinent to this case is United States

v. McCormick, 468 F.2d 68 (10th Cir. 1972). Two border

patrol and U.S. customs inspectors stopped a vehicle in

which the defendant was a passenger. Agent Ford saw a

large black plastic bag in the rear of the truck and detected

LO AM AO.

19a

Appendix D

Order of the United States District Court

the odor of marijuana from within the truck. The truck

was directed to siding for inspection. The other officer

reached in and felt an object under the plastic cover which

he described to Agent Ford. Agent Ford then approached

the rear of the vehicle, reached in, and in attempting to lift

the bean-bag type plastic object, pulled out a paper-wrapped

brick shaped object. He opened it and determined that it

was marijuana. The two defendants were immediately ar-

rested. A consequent search of the van yielded 1,400 pounds

of marijuana. In sustaining the search, the Court found

Agent Ford had probable cause to conduct the search based

on the odor of marijuana, the suspicious behavior of the

driver of the vehicle, his prior view of the large, plastic-

covered object, and the description of the object felt by the

other agent when he first reached under the object. With

respect to the probable cause issue, the Court stated that

“[{A] border patrol agent who has learned how to identify

marijuana by sight or by its odor has probable cause to

search and seize and to effect arrests upon discovery of

marijuana in a vehicle.”

The latest decision is United States v. Anderson, 468

F.2d 1280 (10th Cir. 1972), per curiam. Again, the Court

upheld a warrantless search of a vehicle which resulted in

seizure of marijuana. In affirming the existence of prob-

able cause, the Court noted one agent smelled marijuana

and held that, together with other circumstances, this suf-

ficed.

There are a number of factual parallels between this case

and the decisions just noted. According to the testimony of

Customs Agent Weatherman, the defendant first aroused

SOI ANGI LL COLD INE LAO GD LE IE OD

20a

Appendix D

Order of the United States District Court

the interest of customs officials when he and a companion,

Mr. Stewart, were searched after crossing the Mexican

border on July 9, 1972. A hashish pipe and one marijuana

cigarette were discovered in the possession of defendant’s

companion. In the defendant’s possession, officers found

maps and an aircraft key which he had attempted to con-

ceal. The following day Agent Weatherman located the air-

craft at a local airport. Inside the craft he saw some twenty

folded cardbcurd boxes and two sealed boxes. A surveil-

lance was maintzined and on July 11, 1972, the aircraft

departed and was followed as far as Willcox, Arizona,

where contact was lost. Later that day the aircraft was

; relocated at Holbrook, Arizona, and the defendant was ob-

2 served in the company of another man, tentatively identi-

3 fied as Stewart. They then took off and flew to Long Beach,

California. After they landed they got in a red vehicle and

} departed. At the time the defendant’s aircraft was parked

at the airport in Holbrook, Arizona, Agent Weatherman

had looked inside it and observed two ladders, two traverse

rods, and a four-foot long mirror. When asked what such

articles could be used for, he stated they could be used to

set up an instrument landing system, and by employing this

system airplanes could land on any presentable surface.

’ During the period from July 12, 1972 to July 23, 1972,

j defendant’s airplane was presumably kept under surveil-

3 lance by local agents. Defendant’s plane was moved from

j Long Beach to Santa Monica, California. There it was

loaded with boxes and on July 23, 1972, departed. Agents

' from Los Angeles, California, followed in their plane and

were intercepted by Agent Weatherman and two other

Po ee ee

Bin

21a

Appendix D

Order of the United States District Court

agents in their aircraft near Holbrook. Subsequently, de-

fendant landed at Grants-Milan Airport, near Grants, New

Mexico. The agents circled the airport and one hour later

landed.

After landing, Agent Weatherman learned from the

fixed base operator that the defendant had gone to a nearby

motel. He subsequently looked into defendant’s plane and

observed a number of sealed cardboard boxes. Approxi-

mately two hours later Agent Weatherman closely exam-

ined the defendant’s aircraft and when he put his nose to

the ventilation holes he smelled a strong odor of marijuana.

Next, he opened the baggage compartment and discovered a

cardboard box and a travel bag. Inside the cardboard box

he found some twenty pounds of crude marijuana. Inspec-

tion of the travel bag disclosed several plastic bags of mari-

juana. The agents maintained surveillance throughout the

night.

Early the next morning the defendant returned, entered

his aircraft and took off, with the agents close behind. De-

fendant next landed at the Liberal, Kansas, airport. Be-

cause the agents did not care to risk losing the contraband,

the decision was made to arrest the defendant immediately

upon landing. Accordingly, the defendant was arrested and

a subsequent search of his aircraft yielded some 444 pounds

of marijuana. In addition, a post-arrest search of the de-

fendant yielded .0721 grams of cocaine wrapped in foi] and

concealed in his wallet.

The defendant contends his arrest and warrantless

search of his aircraft at the Liberal Airport following his

arrest was illegal and the evidence seized should be sup-

NR BOR OR ea ee

Biseane

22a

Appendix D

Order of the United States District Court

pressed. Also, he contends the post-arrest search of his per-

son was illegal. The facts in this case, with the notable ex-

ception of a considerable time lag between the initial search

and the subsequent arrest and search, closely parallel the

facts in United States v. McCormick, supra. The critical

questions in this case are, first, whether Agent Weather-

man had probable cause to search the baggage compart-

ment and, second, whether there existed such exigent cir-

cumstances as would justify the failure to obtain an arrest

warrant and a search warrant prior to defendant’s arrest

at the Liberal Airport. If both these questions can be an-

swered affirmatively, then under the rule developed by the

Tenth Circuit, the arrest and search were legal and the evi-

dence seized admissible.

In determining whether probable cause existed, the Court

must view the facts and circumstances as they would have

appeared to prudent, cautious and trained police officers.

First, there is defendant’s initial apnearance at the border

in the company of a man who was discovered to have a

hashish pipe and a marijuana cigarette in his possession.

The defendant also acted suspicious!y in attempting to hide

the maps in his socks and to palm the airplane key. Second,

there is Agent Weatherman’s observ*tion of materials in

defendant’s aircraft which he testi‘ied could m™m ved to set

up an instrument landing systerr. These two facts, together

with other observations made in the course of their sur-

veillance, indicated to the azents that some clandestine

scheme was afoot, that is, it fit a known M.O. Subse-

quently, Agent Weatherman smelled a strong odor of mari-

juana emanating from withi1 the plane. Agent Weather-

23a

Appendix D

Order of the United States District Court

man testified he had smelled marijuana numerous times

during his two years with the United States Customs. Con-

sidering these facts and circumstances in toto, the Court

believes them to constitute probable cause for the subse-

quent searches and arrest. These facts and circumstances

compare favorably with those noted by the Circuit Court

in Miller and McCormick.

Probable cause by itself does not justify a warrantless

search. In.addition, there must be “exigent circumstances”

which preclude the securing of a warrant. The testimony

shows that a period of as long as fifteen hours intervened

between the time Agent Weatherman searched the baggage

compartment and the time defendant departed the Grant-

Milan airfield. Retrospectively, it appears one of the sur-

veilling agents could have driven or flown to Albuquerque,

some 160 miles round-trip distance, and procured a war-

rant. However, the Court is concerned with the facts and

circumstances as they appeared to the agents at the time.

The prime fact to be considered is the airplane which de-

fendant was flying. An airplane is exceedingly mobile and

can carry its pilot for great distances in any direction.

Moreover, the agents had no inkling as to defendant’s

schedule, he could have returned and departed at any time.

Secondly, the agents did not know if defendant was acting

alone. Someone else could have appeared and either un-

loaded the plane or taken off. Consequently, the agents not

only had to be concerned with the defendant, but also with

the possibility of others appearing on the scene. Thus, they

could not afford to disengage an agent or an airplane.

Finally, there is the testimony as to the weather conditions

= ORT OE hee

Appendix D

Order of the United States District Court

that night. Apparently there were storms in the area

which would have made flying hazardous. Combined, these

facts and circumstances were of such exigency as to obviate

the necessity for a warrant. Here, there is presented the

classic case of law enforcement officials confronted with a

highly mobile vehicle and complete uncertainty as to its

future use or ultimate destination. These facts and cir-

cumstances likewise are well within the holdings in Miller

and McCormick.

Therefore, the Court finds that Agent Weatherman, at

the time he searched the baggage compartment, had prob-

able cause to search it and, further, that there were exigent

cireumstanzes excusing the failure to obtain a warrant.

This case. chen, falls well within the scope of McCormick,

wherein the Circuit Court upheld the validity of a search

which turned up marijuana and was followed by arrests

of the occupants of the vehicle and a search which disclosed

a large quantity of marijuana. Also the Court finds that

since the arrest was not illegal, the post-arrest search of

defendant’s person which yielded the cocaine, was also not

illegal, and was within the scope of the search upheld in

Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.

2d 685 (1969). Accordingly, defendant’s motion to sup-

press is denied.

It Is THEREFORE ORDERED that the defendant’s motion to

suppress the introduction of evidence seized from his air-

plane and person be, and the same is hereby, denied.

At Wichita, Kansas, this 30th day of May, 1973.

/s/ FRANK G. THEIS

United States District Judge

Pprdestairrreisctnicndss einai cores Nee eked Reese a RR Biba coe.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.