# Petition for Writ of Certiorari — Sigal v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0548%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1974 - **Citation:** 419 U.S. 954 ## Text ~ Fw a ee TTR ea Pie weet « : FILEY See _ | | AUG 16 19% 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 a Y DIN Ae te At etait ee 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 7 ii 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 ey es PURE ska kk we ontaea ae bone aeee eee 3 United States Constitution ee IE cee voaN Seer awe es 2, 10, 26, 29, 30 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. % vr Barry SIGAL, a/k/a Barry Edwards, a/k/a David Allen Spector, Petitioner, asst cine UNITED STAVES OF AMERICA, Respondent. . % a 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. * 2 ‘ A : a] 4 3s i ; 4a a be 2 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, oe ct Seteeenenee 3 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 (c) of two (2) years. 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 ; 8 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: 6 . . 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. 9 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. 10 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 11 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. 12 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 13 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). i j i plete We necabs laid RIGA Nas 2B RAR RS hogths Sein QA NERA Ta UR sont ALIA Ro ts i poih waked PF! Es EOD et ony Ha nat 14 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 15 “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?