Memorandum — Ford v. United States (No. 74-838)

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In the Supreme Court of the United States

OcTOBER TERM, 1974

No. 74-838

FREDERICK PARKER FORD, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

Petitioner contends that the warrantless search of his

truck upon probable cause was unreasonable under the

Fourth Amendment and that the district court erred in

excluding testimony intended to show that the marihuana

found in petitioner’s trunk might have been a species

other than that specified in the statutory definition of

marihuana.

After a jury trial in the United States District Court

for the Southern District of Florida, petitioner was

convicted of possessing 10,000 pounds of marihuana with

intent to distribute, in violation of 21 U.S.C. 841(a\(1).

He was sentenced to four years’ imprisonment, to be

followed by a two-year special parole term. The court of

appeals affirmed per curiam.

(1)

Os ONES CORSA

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The evidence showed that on February 14, 1974, a

truck rented and driven by petitioner apparently struck

and damaged a canopy at the entrance to the Holiday

Inn in Homestead, Florida (Tr. 7-9, 20-21). In response

to a call from the Inn’s manager, a Homestead police

officer, Raymond Shuck, arrived at the scene to fill

out an accident report (Tr. 20-22). Shortly thereafter,

another local police officer, Clinton Terry, arrived to

investigate the accident (Tr. 7-8). While Officer Shuck

questioned the motel manager and petitioner, Terry went

to the truck, which was parked in a public parking lot

across the street from the Inn, to estimate the damage

(Tr. 8, 22-23). As Terry stood on the hood of his vehicle

to see the damage to the top of petitioner’s truck, he

observed a substantial hole in the truck’s roof and

several burlap bags covered in plastic, one of which

was protruding through the hole (Tr. 9-10, 18). He also

detected a strong odor emanating from the truck, which

smelled “like a wet grass or weed of some sort,”

but he was unable at that time to identify the cargo

(Tr. 13-14). Continuing his investigation, he reached in

and felt the first bag; it appeared to contain some type

of grass (Tr. 13).

When Officer Shuck and petitioner came over to the

truck, Terry asked Shuck if he knew the nature of the

truck’s contents (Tr. 24-25). Shuck said petitioner had

told him that the truck contained furniture (Tr. 24-25).

Terry then asked petitioner about the contents, and he

responded, “marijuana” (Tr. 16, 27).! Shuck arrested

'At the suppression hearing, Terry testified that petitioner re-

sponded to a question which had actually been directed to Officer

Shuck (Tr. 16). Petitioner, who did not testify at the hearing,

stated at trial that he had said, “{i}t looks like Marijuana to me,”

in response to a direct question from one of the officers (Tr. 149).

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petitioner, advised him of his rights, and placed him in

a patrol car that was alongside the truck (Tr. 11, 28).

At the officers’ request, petitioner gave them his key to

the truck; they opened the back of the truck, examined

the contents of two bags, and burned a small amount of

the substance to determine the odor (Tr. 11-12, 28-30).

The officers discovered that the truck contained in excess

of 10,000 pounds of marihuana.

1. Petitioner contends (Pet. 6-14) that the search of his

truck, though based on probable cause, was unlawful

because it was conducted without a warrant. His theory

is that the officers could have immobilized the truck

until a warrant authorizing the search was obtained.

But that immobilization would itself have been a seizure

under the Fourth Amendment. This Court held in Cham-

bers v. Maroney, 399 U.S. 42, that, when a warrantless

seizure of a motor vehicle is justified on the basis of

probable cause, an immediate warrantless search of the

vehicle is also justified (id. at 52):

For constitutional purposes, we see no difference

between on the one hand seizing and holding a

car before presenting the probable cause issue

to a magistrate and on the other hand carrying out

an immediate search without a warrant. Given pro-

bable cause to search, either course is reasonable

under the Fourth Amendment.

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ERAT RA TS

TELE ATTN, FRE ENTE DF NES

Sy?

The Fourth Circuit’s reasoning in United States v.

Bradshaw, 490 F.2d 1097, relied upon by petitioner, is

inconsistent with the rationale of Chambers, and the case

was, in our view, wrongly decided.? Although the position

we take here was rejected by the Fourth Circuit in Brad-

shaw, the court of appeals wrote no opinion in the present

?The government's petition for a writ of certiorari in Bradshaw |

(No. 73-1809), which presented the issue raised by petitioner here, ¢

was denied by this Court on October 21, 1974. :

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case, and the basis of its decision is therefore unclear.’

Since we believe that the result reached by the court

is correct, and since this Court denied certiorari in Brad-

shaw, we do not urge the Court to grant the present

petition on this issue.

2. Petitioner contends (Pet. 15-20) that the district court

should have permitted him to present expert testimony

that there are three different species of marihuana and

that the species of the marihuana seized from him could

not be identified. He argues that the evidence fails to estab-

lish that the substance he possessed was “marihuana”

within the meaning of 21 U.S.C. 802(15), which provides

that “{t]he term ‘marihuana’ means all parts of the

plant Cannabis sativa L., whether growing or not * * *.”

Every court of appeals that has considered the question,

however, has correctly concluded that “Congress intended

to prohibit possession of all varieties of marihuana.”

United States v. Kinney, 505 F.2d 1354 (C.A. 2). Accord,

United States v. Rothberg, 480 F.2d 534 (C.A. 2),

certiorari denied, 414 U.S. 856; United States v. Moore,

446 F. 2d 448 (C.A. 3), certiorari denied, 406 U.S. 909;

United States v. Gaines, 489 F.2d 690 (C.A. 5); United

States v. Burden, 497 F.2d 385, 387 (C.A. 8) United

States v. King, 485 F.2d 353, 361 (C.A. 10); United

States v. Walton, C.A. D.C., No. 74-1790, decided Jan-

uary 23, 1975.

It is therefore respectfully submitted that the petition

for a writ of certiorari should be denied.

ROBERT H. Bork,

Solicitor General.

MarcH 1975.

3The district court upheld the search as incident to a lawful

arrest (Tr. 60-61).