Memorandum — Sigal v. United States

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In the Supreme Court of the United States

OCTOBER TERM, 1974

No. 74-126

BARRY SIGAL, a/k/a BARRY Epwarps, a/k/a Davip

ALLEN SPECTOR, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES

Petitioner contends that the court erred in refusing to

suppress evidence discovered and seized in warrantless

searches, and that a statement made to arresting agents,

before petitioner was advised of his Miranda rights, was

inadmissible and the product of duress.

After a jury-waived trial in the United States District

Court for the District of Kansas, petitioner was convicted

of unlawfully possessing marijuana with intent to dis-

tribute, in violation of 21 U.S.C. 841(a)(1), and was

sentenced to five years’ imprisonment. The court of appeals

affirmed (Pet. App. C).

The evidence showed that when, on July 9, 1972, peti-

tioner and one Mr. Stewart crossed the border into the

United States from Mexico, customs agents discovered

a hashish pipe in Stewart’s suitcase and a marijuana

(1)

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cigarette in his sock. The agents also found a map hidden

in petitioner’s sock. When asked to empty his pockets,

petitioner tried to “palm” a key bearing a tag marked

“N4270T” (Tr. 16-23).' Petitioner and Stewart gave non-

existent addresses (Tr. 42-43).

Agent Weatherman of the Bureau of Customs then went

to the El Paso International Airport where he located

a Piper Cherokee-6 airplane with the number N4270T.

He looked inside the airplane and noted that four of the

six seats had been removed and approximately twenty

flattened cardboard boxes and two sealed boxes occupied

the seating space (Tr. 24-25). At 2:30 a.m. on July 11th,

the aircraft departed. It was followed by customs agents

to Willcox, Arizona, where it landed at 4:20 a.m. The

customs agents circled the Willcox airport for an hour

before landing; by the time they landed at 5:20 a.m., the

aircraft had departed (Tr. 27-30). The plane next landed

at Holbrook, Arizona, at 10:00 o’clock a.m. (Tr. 31).

The following day petitioner and Stewart flew to Long

Beach, California (Tr. 40-44).

Approximately one week later, customs agents observed

numerous boxes being loaded onto petitioner’s airplane

at Los Angeles (Tr. 47-48). Customs aircraft followed

petitioner’s airplane to Grants, New Mexico (Tr. 49).

After an hour of aerial surveillance, the customs air-

craft landed. Agent Weatherman learned that the pilot

had gone to a motel. Agent Weatherman then looked

'“Tr.” identifies the one-volume transcript of the arraignment and

hearing on a motion to suppress of February 16, 1973. “Tr. T.”

identifies the transcript of the court trial on July 13, 1973. The

case was submitted to the trial court after petitioner waived his

right to jury trial. The case was tried on the basis of various stipula-

tions, which included the right of the trial court to consider the

greater part of the testimony given at the suppression hearing. No

further evidence was presented by either side.

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inside the aircraft and saw numerous large cardboard

boxes. On closer examination, he detected the odor of

marijuana coming from the aircraft (Tr. 50-51). Weather-

man found the door to the iuggage compartment unlocked

and opened it. Inside he found a sealed cardboard box

and a travel bag. The box contained more than twenty

pounds of marijuana. The travel bag contained personal

effects and plastic bags of marijuana (Tr. 51-52). No

search warrant had been obtained.

The next morning, July 24th, petitioner flew to Liberal,

Kansas (Tr. 52-54). Weatherman followed. Upon landing,

Weatherman walked toward petitioner, calling his name.

Weatherman identified himself as a customs agent and

asked petitioner what he had in his airplane. Petitioner

replied “grass”. A second agent placed petitioner under

arrest and advised him of his constitutional rights (Tr. 54).

A warrantless search of the plane was then conducted

and 426 pounds of marijuana was seized (Tr. 56-57; Tr.

T. 14).

1. Petitioner contends that the search and seizure of

the marijuana at Liberal, Kansas, was the product of an

illegal search at Grants, New Mexico, and that the triai

court therefore erred in denying a motion to suppress

(Pet. 7-29). As the court below correctly held, however,

the search of petitioner’s airplane at Grants, New Mexico,”

“was based on probable cause under exigent circumstances

which obviated any necessity to obtain a search warrant”

?Petitioner’s suggestion (Pet. 7, 8, 9, 29) that the court below

treated the search of an airplane as potentially less intrusive upon

Fourth Amendment rights than the search of an automobile is un-

founded. The court of appeals found that both probable cause and

exigent circumstances must be present for a lawful warrantless

search. This is the same standard which would have applied if peti-

tioner had been driving an automobile.

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(Pet. App. C, 6a).? Chambers v. Maroney, 399 U.S. 42:

Carroll v. United States, 267 U.S. 132; United States v.

Pollard, 466 F. 2d 1 (C.A. 10), certiorari denied,

409 U.S. 1127.

Agent Weatherman’s probable cause to believe petitioner's

aircraft contained marijuana was based upon several facts,

including the suspicious circumstances under which peti-

tioner entered the United States on July 9, 1972, the

unusual contents of petitioner’s aircraft, and the odor

of marijuana from petitioner’s aircraft.4 Carroll v. United

States, supra.

Several exigent circumstances prevented the custom

agents from obtaining a search warrant by the time they

had probable cause to believe that the aircraft contained

marijuana. Petitioner could depart from Grants immediate-

ly. He had several times previously departed from loca-

tions in the middle of the night. Moreover, because the

agents could not be certain that petitioner was acting

alone, it was possible that someone other than petitioner

could remove the plane from the area. Finally, the agents

could not be certain that they could continue to pursue

petitioner. They might lose track of him, or he might fly

>Petitioner’s claim that the airplane was “immobile” at the time of

the initial search, and therefore not within an exception to the re-

quirement of a search warrant (Pet. 8, 9, 17), is unfounded, since

this Court has characterized “mobility” as “readily movable” and

“movable”. Cardwell v. Lewis, No. 72-1603, decided June 17, 1974,

slip op., pp. 5-6. Clearly the airplane in question was a “mobile vehicle.”

*Petitioner’s contention that the decision of the court below, finding

probable cause for the initial search, conflicts with the ruling of

this Court in Taylor v. United States, 286 U.S. | (Pet. 10-11, 29),

is misconceived. The lack of probable cause in Taylor was attri-

butable to the searching officer’s reliance upon an odor alone. In

Petitioner’s case the odor of marijuana was but one of a number

of elements establishing probable cause.

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across the border to Mexico. Agent Weatherman’s search

on July 23, 1972, was therefore reasonable under exigent

circumstances. Chambers v. Maroney, supra;> Carroll vy.

United States, supra; Cardwell v. Lewis, No. 72-1603,

decided June 17, 1974. Accordingly, what thereafter occur-

red at the airport in Liberal, Kansas, was not the fruit of

any tree that had been poisoned in Grants, New Mexico.

We recognized, however, that the question whether

police officers, having probable cause to believe that a ve-

hicle contains contraband, can properly conduct a warrant-

less search of the vehicle, is one in which the circuits are

in conflict. See our Petition for a Writ of Certiorari in

United States v. Bradshaw, No. 73-1809.

2. Petitioner contends that the trial court erred in

failing to suppress his one-word statement “grass” which

was made before petitioner was informed of his Miranda

rights and allegedly made under duress (Pet. 26-29).

Petitioner bases his allegation of duress upon testimony

that the arresting agents approached petitioner with

drawn weapons (Tr. 141-142, 153, 156-157). Nothing in the

record, however, indicates that petitioner’s statement was

induced by the presence of the drawn weapons. More-

over, although petitioner had been halted, the trappings

of official cu™tody were minimal. Petitioner stood on a

public airstrip, with several airport employees nearby, and

ne had not yet been placed under arrest (Tr. 54).

‘Petitioner's reliance upon United States v. Payne, 429 F. 2d 169

(C.A. 9) (noted by this Court in Coolidge v. New Hampshire, 403 U.S.

443, 462, n.19) is misplaced. In Payne law enforcement officials had

affirmative knowledge that those in control of the subject vehicle

intended to remain at the same location. No similar assurance was

entertained by the agents in the instant case.

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Even assuming arguendo that the admission of petition-

er’s statement may have been error, the error was harm-

less beyond a reasonable doubt. As the court of appeals

Stated, “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 inference that he possessed the marijuana with an

intent to distribute it. United States v. King, 485 F. 2d

353 (10th Cir. 1973)" (Pet. App. C, 14a).

3. Because the Fourth Amendment issue is raised by the

government’s petitior. for certiorari in Bradshaw, supra,

we suggest that the appropriate course here is for the Court

to hold this petition for action consistent with the Court’s

disposition in Bradshaw.

Rosert H. Bork,

Solicitor General.

SEPTEMBER 1974.

*Petitioner’s suggestion that the trial court did not infer intent

from the quantity of marijuana is unsupported by the record. The

trial court stated:

He wasn’t transporting it for some innocent purpose. No one

planted it in the plane, in other words. And, the very fact that

he possessed this amount, and all of his activities, indicate to

the Court that the defendant did intend to distribute that

quantity of marijuana. It would take him a long time to smoke

that much personally. The only inference is that he had it for

distribution in one way or another. And, I don’t have any prob-

lem in finding beyond a reasonable doubt from the evidence

before me at this point that the defendant is guilty of count

three of the indictment, of possessing the Marijuana with intent

to distribute. And, I so find the defendant guilty of count

three. (Tr. T. 17.]

DOJ-1974.99

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