# Petition for Writ of Certiorari — MacKenzie v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1975
- **Citation:** 423 U.S. 827

## Text

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SuPrrac couRyT, Oh & i FILDQED
SUPREME COURT | joe 94. 07
OF THE UNITED STATES) wc: /00»s

October Term
1974

No...... 94-1346

DUNCAN SCOTT MACKENZIE and

RICHARD STEVEN BONDAR,
Petitioners

UNITED STATES OF AMERICA,
Respondent

a ee

PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
SAMUEL FRIZELL ROBERT W. FRASER
Attorney at Law Attorney at Law
638 North Van Ness 433 Civic Center Drive West
Santa Ana, California 92701 Santa Ana, California 92701
Telephone: 714] 835-3529 Telephone: [714] 558-8888
Attorneys for Petitioners

LLL LL LLL SS SS So Se ce Se eee GEES SOE Gee aun aces eee

J. GALLAGHER, Printed Briefs {714) 547-6073

INDEX TO PETITION

Page
Table of Authorities ii
PETITION

Proceedings Below 1
Jurisdiction 1
Questions Presented 2
Constitutional and Statutory

Provisions Involved 2
Procedural History 5
Statement of the Facts 6
Reasons for Granting the Writ 16

1. The decision of the Court below cannot be

REIN

reconciled with the decisions of the Supreme
Court in Coolidge v. New Hampshire, 493 U.S.
443; and in Preston v. United States, 376 U.S.
364; and has so extended the rule of Chambers v.
Maroney, 399 U.S. 42 that fourth amendment
protection virtually disappears in me presence of
an automobile.

. The Court below has misused the doctrine of

“founded suspicion” to abrogate appellant’s
rights under Miranda v. Arizona, 383 U.S. 436.

APPENDIX A
lll. The statutes under which petitioners were
convicted are unconstitutional.

CONCLUSION

APPENDIX A

TABLE OF AUTHORITIES

Page
Constitution, United States, Amendment 4 2
Constitution, United States, Amendment 5 2
Statutes
United States Code
21 United States Code Section 841 3
21 United States Code Section 846 3
28 United States Code Section 1254 4
Cases
Brinegar v. United States, 338 U.S. 160 22
Cady v. Dombrowski, 413 U.S. 433 20
Carroll v. United States, supra 23
Chambers v. Maroney, 399 U.S. 42 18
Coolidge v. New Hampshire, 403 U.S. 443 17
Henry v. United States, 361 U.S. 98 21, 23
Lowe v. United States, 407 F. 2d 1391, 1393-94 21
Miranda v. Arizona, 384 U.S. 436 23
Preston v. United States, 376 U.S. 364 20
United States v. Church, 490 F. 2d 353 16
United states v. Cohn, 472 F. 2d 29 17

United States v. Sherman, 430 F. 2d 1402 16

ee ee ee

SUPREME COURT
OF THE UNITED STATES

DUNCAN SCOTT MACKENZIE and
RICHARD STEVEN BONDAR, Petitioners
Vv.

UNITED STATES OF AMERICA, Respondent

Petitioners, DUNCAN SCOTT MACKENZIE and
RICHARD STEVEN BONDAR, by their counsel Robert W.
Fraser and Samuel Frizell, pray that a writ of certiorari
issue to review the judgment of the United States Court
of Appeals for the Ninth Circuit as that judgment affirms
their guilt of possession of marijuana with intent to
distribute, in violation of Title 21 U.S.C. Section 841 (a)(1)
and conspiracy to possess marijuana with intent to
distribute in violation of Title 21 U.S.C. Section 846.

PROCEEDINGS BELOW

In a memorandum decision, a copy of which is

attached as Appendix A, pages 31-34, petitioners’

. convictions were affirmed.

JURISDICTION
The judgment of the Court of Appeals was entered on
March 25, 1975. The jurisdiction of this Court is invoked
pursuant to 28 U.S.C. Section 1254.

'
Gare ae PRA OAPI HN LOA LT

QUESTIONS PRESENTED

1. Is the warrantless search of an automobile valid in
the absence of a showing that it was impractical to obtain
a search warrant?

2. Can an arrested suspect be interrogated without a
Miranda warning when officers have probable cause to
believe the suspect unlawfully possesses marijuana at
the time of the interrogation?

3. Are the statutes under which Petitioners were
convicted constitutional?

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED

The following constitutional and Statutory provisions
are involved in this case:

United States Constitution, Amendment 4:

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.

United States Constitution, Amendment 5:

No person shall be held to answer for a Capital,
or otherwise 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 compensation.

Title 21, U.S.C. Section 841 [a] 1}[2]:

(a) Except as authorized by this subchapter, 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 controlled substance; or

(2) to create, distribute, or dispense, or
possess with intent to distribute or dispense, a
counterfeit substance.

Title 21, U.S.C. Section 846:

Any person who attempts or conspires to
commit any offense defined in this subchapter is
punishable by imprisonment or fine or both which
may not exceed the maximum punishment
prescribed for the offense, the commision of
which was the object of the attempt or conspiracy.

Title 28, U.S.C. Section 1254:

Cases in the courts of appeals may be reviewed
by the Supreme Court by the following methods:

(1) By writ of certiorari granted upon the
petition of any party to any civil or ciminal case,
before or after rendition of judgment or decree;

(2) By appeal by a party relying on a State
statute held by a court of appeals to be invalid as
repugnant to the Constitution, treaties or laws of
the United States, but such appeal shall preclude
review by writ of certiorari at the instance of such
appellant, and the review o:. «peal shall be
restricted to the Federal questions presented;

(3) By certification at any time by a court of
appeals of any question of law in any civil or
criminal case as to which instructions are desired,
and upon such certification the Supreme Court
may give binding instructions or require the entire
record to be sent up for decision of the entire

matter in controversy.

a nea

PROCEDURAL HISTORY

This is a criminal prosecution for violations of 21
USC§841 (a) (1), possession with intent to distribute
marijuana and 21 USC §846, conspiracy to possess with
intent to distribute marijuana. The overt act alleged was
that appellant MACKENZIE drove a vehicle in the
southern district of Caiifornia. (Clerk’s Transcript page 1
— hereafter the cierk’s transcript will be abbreviated to
C.T.).

Appeliants were arrested on January 25, 1974 and
indicted on February 6, 1974 in the southern district of
California.

Appellants were duly arraigned (C.T. 4), discovery
proceedings were completed (C.T. 8), and appellants
moved the Court for an order suppressing evidence
seized from a 1968 Chevrolet driven by appellant
MACKENZIE, to suppress observations made by govern-
ment agents of the vehicle from and at the time it was
stopped; and of items seized from a 1959 Chevrolet
Apache driven by appellant BONDAR (C.T. 15). The
motion to suppress was made on the grounds that the
searches and seizures were made without judicial
warrants and were unreasonable within the meaning of
the Fourth Amendment to the United States Constitution.
The motion was heard by the Court on Monday, May 6,
1974, and denied (C.T. 40).

The case was called for trial on June 20, 1974; a jury
was chosen and sworn; and heard testimony though
June 20 and June 21, 1974 (C.T. 55). A motion for
acquittal was made and denied at close of appellants’
case (Reporter's Transcript pages 219-221 — hereafter the
Reporter's Transcript will be abbreviated to R.T.). On
June 24, 1974 the jury returned a verdict of guiity on both
counts against both appellants (C.T. 86). A motion in
arrest of judgment was made on grounds the statute was
unconstitutional (C.T. 88) which was denied. Notice of
appea! was duly filed and perfected (C.T. 94). Appellant
MACKENZIE was sentenced to two years in prison (C.T.
93), and appellant BONDAR committed under the Youth
Correction Act (C.T. 93). Both appellants were released
on bail. The transcript on appeal was duly transmitted to
the Ninth Circuit Court of Appeals, docketed, and briefs
filed. The Court of Appeals refused argument and
submitted the case. It's memorandum decision issued on
March 25, 1975, affirming the judgments.

STATEMENT OF THE FACTS

On January 25, 1974 John R. Pulley, a Special Agent
for the Federal Drug Enforcement Administration, was
working his duty station in Calexico, California (R.T.
80-81). While northbound on Heber Avenue in Calexico,
California, Pulley’s attention was drawn to a 1968
Chevrolet Impala, four door hardtop, black over yellow,
California License WXK 949 because the vehicle was

sitting a little lower in the rear than he thought it should
and the rear tires appeared to be bulging on the sidewalls
(R.T. 82-83). The vehicle was approximately two and one
nalf blocks from the Mexican border facing southbound
on Heber (R.T. 83). Pulley looked in the vehicle and could
see no personal belongings or anything other than the
motor vehicle registration receipt which was in the open
glove compartment (R.T. 84).

The doors were locked and the suspension of the
vehicle was “beefed up” with air suspension type shock
absorbers (R.T. 85-86). Pulley established a surveillance
of the vehicle at about 11:30 A.M. (R.T. 86) and during
this surveillance noticed a Mexican female approach the
vehicle at approximately 12:10 P.M. (R.T. 87) and about
twenty minutes later remove a parking iicket under the
windshield wiper of the vehicle (R.T. 88). Two or three
minutes later she rode by as a passenger in a 1974
Mustang with Baja California license plates (R.T. 87-88).

There were two other Drug Enforcement Administration
units in the area, who observed the Mustang until it
crossed into Mexico (R.T. 89).

Special Agent Walker relieved Pulley at about 2:00
P.M. so Pulley could get lunch (R.T. 90). Pulley remained
on his surveillance until approximately 6:50 P.M. at
which time he drove to his office and was having a cup of
coffee some seven blocks away (R.T. 90). At about 7:00
P.M. Pulley received information that there was activity at

the subject vehicle (R.T. 90) at which time he returned.
When Pulley returned the vehicle was at Second Avenue
westbound, crossing the intersection of Holland, and
Pulley began following the vehicle (R.T. 93). The vehicle
proceeded until it reached Highway 98, approximately
twelve blocks away from where Pulley began following it.
During his pursuit of the subject vehicle he noticed
another vehicle, a 1968 Chevrolet Pane! Truck, proceeu-
ing in the same direction as the subject vehicle (R.T.
95-96). Pulley pulled in behind the panel truck in the left
turn lane from northbound Imperial Avenue onto Highway
98 and saw the driver look in his rearview mirror (R.T. 97).
Pulley pulled slightly to the right so that he was not
visible to the side rearview mirror and saw the driver of
the panel truck look up towards his rearview mirror (R.T.
98). At the time Pulley was following the subject vehicle
there were four other units in the area — all of whom took
up the pursuit (R.T. 98). In addition to the ground units
there was an aircraft carrying Special Agent Pettingill
(R.T. 99). Pulley advised Pettingil! that he was going to
make a left turn on a particular road and that the third
vehicle in front of him would be the panel truck. Pulley
made his left turn off of Highway 98 (R.T. 100).

Pettingill was an observer in the aircraft flying over the
area and did see a vehicle make a left turn onto Clark
Road. He, by radio, requested another agent, one Polish,
to hit his brake lights several times (R.T. 198). The

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vehicles were westbound on Highway 98 in light to
moderate traffic (R.T. 198). Approximately twenty miles
out of Calexico on Highway 98 Pettingill observed the
second vehicle which was the subject of this surveillance
(the panel truck) to hit the high beams on his headlights
about twice at a time when the two suspect vehicles were
seventy-five to one hundred yards apart. He saw no
vehicles at that point coming from the eastern direction
towards the vehicles he was watching (R.T. 199). Signals
from the agents’ vehicles to the plane were also given by
flashing the agents’ vehicles bright lights (R.T. 212).

The plane in which Pettingill was riding travelled
approximately one hundred and twenty miles per hour,
going approximately twice the speed of the ground
vehicles (R.T. 202). The plane crbited the vehicles in a
clockwise direction for approxi:nately twenty minutes
(R.T. 202). The aircraft from which Pettingill was making
his observations was about five thousand feet in altitude
(R.T. 205).

After making the left turn off the highway, Agent Pulley
picked up Deputy Wallace of the Imperial County Sheriff's
Department and then continued in a westerly direction on
Highway 98. Pulley ordered the agents involved in the
surveillance to stop the vehicles if they continued
westbound on Interstate 8. Accordingly, both vehicles
were stopped when they got on Interstate 8 westbound;
Pulley stopping the 1968 Chevrolet with his red light and

siren (R.T. 102) and some of the other agents stopping
the panel truck which passed the Chevrolet automobile
and went on down the road (R.T. 103). Appellant
MACKENZIE was driving the 1968 Chevrolet (R.T. 104).
Pulley displayed his badge, stated he was a federal
agent, asked MACKENZIE to step out of the vehicle,
asked him whose car it was, and asked if he had
contraband on tire truck. MACKENZIE said the vehicle
was a friend's and that he had no countraband and
refused the request to search the truck (R.T. 104). Pulley
then removed the keys from the ignition, opened the
trunk, and observed that the trunk was completely full of
packages which, in his opinion, contained marijuana
(R.T. 105). There were tw hundred eighty-six kilogram
packages, of which ten were retained and entered into
evidence as Government's Exhibit No. 2(R.T. 106). In the
Calexico area a kilogram of marijuana in a large quantity
would sell for eighty to one hundred dollars, and the price
would increase the further one got from the border (R.T.
107). The marijuana is usually broken into small packages
called a baggy or lid weighing approximately one ounce
prior to being used (R.T. 108).

Agent Walker brought Appellant BONDAR from the
Stopped panel truck back to the 1968 Chevrolet (R.T. 109).

Deputy Camarena of the Imperial County Sheriff's
Office returned the 1968 Chevrolet back to the DEA Office
in Calexico where the marijuana was unloaded, counted,

Pe OA ERENCE roma

marked, initialed and boxed (R.T. 110).

Under cross-examination Agent Pulley stated that he
could see nothing in the trunk compartment by looking
through the windows of the car as it was parked on the
Street (R.T. 116).

Pulley also testified on cross-examination that he was
familiar with the smell of marijuana, but that he could not
smell any around the car nor could he smell marijuana by
sniffing at a partially opened window (R.T. 137) as it was
parked in Calexico. He further testified that the
automobile had come across the border at 10:07 on that
morning (R.T. 125). The government sought to present
evidence that Agent Pulley obtained the assistance of a
specially trained dog, which indicated by pawing at the
trunk of the car that marijuana was contained therein. The
Court refused to permit this evidence to be presented to
the jury (R.T. 128-129). The subject 1968 Chevrolet was
registered to a man named Donald E. Martin in
Huntington Beach (R.T. 114). The wrappers from the
marijuana that was taken from the trunk were submitted
for fingerprint analysis at the FBI Fingerprint identify
Bureau in Washington, D.C. (R.T. 133), but neither of the
Appellants’ fingerprints were found upon the wrappers
(R.T. 216).

Agent Walker of the Drug Enforcement Administration
also worked in Calexico, California (R.T. 143). He
assisted Agent Pulley on the surveillance of the 1968

11

RERERAIE AERIS LIT ELLE LE ILIA IY LEE ING FIER CINE OTERO PNT: LORE SE SETI SS PIL

Chevrolet, beginning at about 12 noon (R.T. 144) Walker
alsO was on surveillance of the vehicle at 7 P.M. on
January 25, 1974. He had relieved Agent Pulley, and
Pulley had gone back to the office (R.T. 146). At about 7
P.M. Appellant MACKENZIE approached the driver's side
of the automobile, entered the vehicle and drove scuth to
Second Street then proceeded west on Second toward
Imperial (R.T. 146-147). Waiker was one of several cars
following MACKENZIE (R.T. 147). Walker had first seen
the Chevrolet Panel Truck, driven by Appellant BONDAR,
in Calexico, northbound on Imperial Avenue. The 1968
Chevrolet was in front of the panel truck as they were
northbound on Imperial.

Walker using his red light and sirens stopped the panel
truck on Interstate 8 immediately after the 1968 Chevrolet
driven by the Appellant MACKENZIE was stoppcd (R.T.
148). Walker identified himself as a Federal Narcotics
Agent to Appellant BONDAR, told him he was
conducting a narcotics investigation (R.T. 149) and asked
him “who his friend was in the vehicle just to the east”
(R.T. 153). Objection was made at this point on the
grounds that Appellant BONDAR had not been advised
nor had he waived his rights set forth by the United States
Supreme Court in Miranda v. Arizona (R.T. 150). This
objection was overruled and Walker testified that
Appellant BONDAR replied that he “didn’t have any friend
or denied any knowledgs of knowing anyone in the

ERR oe TEER AERTS meme names ete ym

Ae OST ERA SRR RD:

vehicle” (R.T. 153). Appellant BONDAR was taken back to
the other vehicle where Agent Pulley placed him under
arrest (R.T. 153).

Appellant BONDAR’s vehicle, the panel truck, was
searched in Calexico after it was returned to the DEA
Offices there. Certain documents, letters addressed to
Appellant MACKENZIE, (Government Exhibits 3, 4, and 5)
were found in the BONDAR vehicle (R.T. 154). Admission
of these items in evidence was objected to, but the
objection was overruled (R.T. 155 and 160).

When Appellant MACKENZIE first approached the car,
he did not open the trunk, nor did he look at the shock
absorbers (R.T. 162). Agent Walker had watched the car
off and on from noon until 7:00 P.M., and on one
occasion sniffed at the partially opened window and
smelled nothing unusual (R.T. 164). Walker did know
what marijuana smelled like (R.T. 164).

Agent Walker testified that from the time he turned on
his red light and his siren, just prior to stopping the panel
truck, that Appellant BONDAR was not free to proceed as
he wished (R.T. 176). The panel truck was given a cursory
search on the highway at the location where it was
stopped for any obvious contraband or possible
weapons. An hour to an hour and fifteen minutes later
after it had been taken back to the DEA Office the vehicle
was thoroughly searched. No weapon or no countraband
was ever found in the vehicle (R.T. 177). BONDAR was

13

placed under arrest by Agent Pulley within a few minutes
after the vehicle stop was made (R.T. 178). At the time
BONDAR was stopped, he was a suspect according to
Agent Walker (R.T. 183).

Deputy Sheriff Camarena of the Imperial County
Sheriff's Department was riding with Agent Pulley in his
vehicle (R.T. 185). He saw the kilo bricks of marijuana in
the trunk of the 1968 Chevrolet, and drove the vehicle
approximately thirty-five miles back to Calexico. He
described it as riding very hard, and having steering that
was lighter than normal (R.T. 186). He testified that he
noticed a smell of unburned marijuana while inside the
automobile (R.T. 187).

The parties all stipulated that the bricks found in the
trunk of the 1968 Chevrolet were in fact marijuana and
that the bricks which were the subject of Government's
Exhibit 2 remained in the custody of the United States
since their seizure by Agent Pulley until they were
presented as evidence to the Court. (R.T. 217).

With this evidence the government rested and motions

(R.T. 219-220). Both motions were denied (R.T. 221).

The defense consisted primarily of character witnesses
concerning Appellant MACKENZIE’s character. In addi-
tion to the character witnesses, Mr. Tom Shea-han
testified than he saw Appellants in Elsinore at
approximately 10:00 A.M. on January 25, 1974, at the

14

—terjuagmnent otacgeitial were-made by both appellants

time the load vehicle was crossing the border (R.T.
237-238). A motion to strike this evidence as irrelevant
and prejudicial to Appellant BONDAR was made and
denied (R.T. 240).

The Court took judicial notice that the distance from
Elsinore to Calexico was between one hundred and fifty
and two hundred miles (R.T. 270).

15

REASONS FOR GRANTING THE WRIT
!

THE DECISION OF THE COURT BELOW
CANNOT BE RECONCILED WITH THE DECIS-
IONS OF THE SUPREME COURT IN COOLIDGE
v. NEW HAMPSHIRE, 493 U.S. 443; AND IN
PRESTON V. UNITED STATES, 376 U.S. 364;
AND HAS SO EXTENDED THE RULE OF
CHAMBERS V. MARONEY, 399 U.S. 42 THAT
FOURTH AMENDMENT PROTECTION VIR-
TUALLY DISAPPEARS IN THE PRESENCE OF
AN AUTOMOBILE.

Although the Supreme Court has held that the word
“automobile” is not a talisman in whose presence the
Fourth Amendment fades away and disappears, there is a
long line of cases in the Ninth Circuit cited by the United
States in its brief to the Court of Appeals which
essentially holds just that. This line of cases is
exemplified by United States v. Church, 490 F. 2d 353 in
which a warrantless search of an automobile was
sustained even though it occurred approximately four and
one-half hours after federal agents initiated surveillance
and even though a U. S. Magistrate’s office was only one
block away. This same theory pervades the holdings in
United States v. Sherman, 430 F. 2d 1402 where a
warrantless search was sustained though agents had

twelve hours in which to procure a search warrant, and in
United States v. Cohn, 472 F. 2d 29 in which a
warrantless search of a vehicle was upheld after a
nineteen hour vigil.

In the case now before the Court, federal agents
established surveillance of the MACKENZIE vehicle, at 11
a.m. in the morning where it was parked on the streets of
Calexico, California. The surveilling agent had full time
assistance of another agent from and after 2 P.M. and the
vehicle was not driven away until 7 P.M. A United States
Magistrate was located in El Centro, a distance of some
ten miles from Calexico, and a California Magistrate
empowered to issue a search warrant was located in
Calexico itself. The agents actually engaged in the
surveillance also had several other agents with cars in the
vicinity, and were able to call on Sheriff's Deputies with
cars and airplanes when needed. There was simply no
evidence presented to the Court to create a factual
exception to the Fourth Amendment requirements that a
search warrant be obtained before a search.

This Court in Coolidge v. New Hampshire, 403 U.S. 443
held:

“Thus the most basic constitutional rule in this
area is that searches conducted outside the judicial
process without prior approval by judge or magis-
trate, are per se unreasonable under the Fourth
Amendment — Subject only to a few specifically

Established and well delineated exceptions.”
403 U.S. at 454-5; 91 S. Ct. at 2032)

17

The burden is upon the government to show exigent
circumstances which would justify the failure to obtain a
warrant. There is not a scintilla of evidence in the record
which justifies this failure. The agents had the necessary
probably cause to search 8 hours prior to the search and
there were at least two agents involved in the full time
surveillance of the subject vehicle for a period of five
hours as it was parked on the streets of Calexico. There
were two magistrates within minutes away, and no
showing was made that it was impractical to obtain a
search warrant from one of these magistrates.

The holding in Chambers v. Maroney, 399 U.S. 42; 90
S. Ct. 1975 is illustrative of a permissible warrantless
search:

a re exigent circumstances justify the
warrantless search of an automobile stopped on
the highway where there is probably 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. The
opportunity to search is fleeting.”

The only similarity in the case now before the Court
and that before the Court in Chambers v. Maroney, supra,
is the fact that an automobile is involved. The opportunity
to search the MACKENZIE vehicle in the case now before

18

the Court was not fleeting. This opportunity existed for at
least eight hours prior to the time the vehicle was moved
by appellant MACKENZIE.

The record reflects a callous denial of Fourth
Amendment rights to appellants. The federal agerits
involved were able to get relief from the surveillance
in order to get lunch, and later to get coffee, but they
could not find the necessary time to comply with the
Fourth Amendment and get a search warrant.

With the exception of the word “automobile” there is
nothing in the record to excuse this warrantless search
and appellants submit that, under the line of cases cited
by the government, the word “automobile” truly is a
talisman in whose presence Fourth Amendment rights
totally dissipate.

The search of the BONDAR vehicle is even less
constitutionally defensible than the search of the
MACKENZIE vehicle. In MACKENZIE, at least, the
officers had some evidence that the vehicle contained
contraband. The circumstances surrounding it’s appear-
ance and the indication shown by Rex, the local
marijuana sniffing dog, could, arguendo, give the officers
probable cause for believing that the MACKENZIE vehicle
contained contraband.

However, when the-BONDAR vehicle was stopped on
the highway and its driver arrested, the officers had no
evidence whatsoever, either objective or subjective, that

the vehicle contrained any contraband or any other item
susceptible of seizure. After BONDAR’s arrest, his
vehicle was driven some thirty miles back to the DEA
Offices before it was searched. This activity is forbidden
by the holding in Preston v. United States, 376 U.S. 364 ;
84 S. Ct. 881. The Court of Appeals held that Preston,
supra, was not applicable to the BONDAR vehicle search
' because Preston applied only to attempts to justify a
search as incident to an arrest. The Court of Appeals held
that in this case the Trial Court upheld the search
because it found the officers had probably cause to
Search the vehicle at the time they arrested BONDAR.
Yet, the record is devoid of any evidence whatsoever of
probably cause that the vehicle contained any seizable
items of contraband or other instrumentalities of crime. If
the officers can justify the search of the BONDAR vehicle
at all it must be justified on the grounds that it was
searched as an incident of BONDAR’s arrest. And if this
is justification, then the search was barred by the holding
in Preston v. United States, supra. The search cannot be
justified by Cady v. Dombrowski, 413 U.S. 433; 93S. Ct.
2523, as this was not a caretaking search by state
officers, but a search for evidence.

i
THE COURT BELOW HAS MISUSED THE
DOCTRINE OF “FOUNDED SUSPICION” TO
ABROGATE APPELLANT’S RIGHTS UNDER
MIRANDA V. ARIZONA, 384 U.S. 436.

The Ninth Circuit utilizes a doctrine known as
“Founded Suspicion” to permit the stopping of vehicles
for investigation without probable cause. The Court
dismissed appellants’ argument that their statements
should not have been admitted into evidence because
they were not warned pursuant to Miranda, supra, with
the following language:

“It appears that they argue that the whole
panopoy of warnings required by that case
(Miranda) should be applied whenever an inves-
tigation has ‘focused’ sufficiently to justify
stopping a vehicle. They cite no authority for
this novel proposition, and we see no reason to
adopt it. See Lowe v. United States, 407 F. 2d
1391, 1393-94 (Ninth Circuit 1969).”

Assuming, arguendo, that Miranda warnings are not
required when a vehicle is stopped pursuant to a
“Founded Suspicion”. this rule would have no applica-
tion to this case. The Court below held that the agents
had probable cause not only to stop the vehicles but to
search the vehicles. Henry v. United a, 361 U.S. 98;
80 S. Ct. 168 held:

“The fact that the suspects were in an auto-

is not enough. Carroll v. United States, supra,
liberalized the rule governing searches when a
moving vehicle is involved. But that decision
merely relaxed the requirements for a warrant on
grounds of practicality. It did not dispense with

the need for probable cause.” (361 U.S. at 104; 80 S.
Ct. at 172)

The necessary probable cause to justify the search
would only exist where the facts and circumstances
within the searching officers knowledge were sufficient
within themselves to warn a man of reasonable caution in
the belief that an offense has been or is being committed
or that contraband was contained in the MACKENZIE

The necessary probable cause to justify the search
would only exist where the facts and circumstances
within the searching officers knowledge were sufficient
within themselves to warrant a man of reasonable caution
in the belief that an offense has been or is being
committed or that contraband was contained in the
vehicle (Brinegar v. United States, 338 U.S. 160; 69 S.
Ct. 1302).

When the agenst stopped BONDAR and MACKENZIE
they either had probable cause to believe MACKENZIE
was Carrying marijuana and that an offense was being
committed or they had no justification for searching

either of the vehicles. The Court below did hold that they
had probable cause for searching the vehicles and it is
totally inconsistent to hold that the Miranda warnings
were not required.

It is very clear that the twa.appellants were undergoing
custodial interrogation.

As is stated in Henry v. United States, 361 U.S. 98; 80
S. Ct. 168: .

“When the officers interrupted the two men and
restricted their liberty of movement, the arrest,
for the purposes of this case, was complete.”
(361 U.S. at 103; S. Ct. at 171)

After appellants were stopped on the highway, not free
to go, by federal officers who had probable cause to
believe that they were transporting marijuana, they were
questioned and their answers were put into evidence.
This violates the holding of Miranda v. State of Arizona,
384 U.S. 436; 86S. Ct. 1602:

“ . . The prosecution may not use statements,
whether excuipatory or inculpatory, stemming
from custodial interrogation of a defendant
unless it demonstrates the use of procedural
safeguards effective to secure the privilege of
self-incrimination. By custodial interrogation,
we mean questioning initiated by law enforce-
ment officers after a person has been taken into
custody or otherwise deprived of his freedom in
any significant way.” (384 U.S. at 444; 86S. Ct.
at 1612)

foot

23

By inconsistent holdings that the officers on the one
hand had probable cause to justify a search for
contraband and on the other hand to hold that the
investigation had not focused sufficiently to require the
Miranda warnings, the Court below effectively negates
Miranda as applied to interrogation of vehicle drivers.
Like the Fourth Amendment, the Fifth Amendment does

not fade away and disappear in the presence of the word
“automobile”.

il
THE STATUTES UNDER WHICH PETITIONERS WERE
CONVICTED ARE UNCONSTITUTIONAL.

One of the most familiar phrases in jurisprudence is
“Ignorance of the law is no excuse”. However, this maxim
does have its exceptions and can no longer be viable on
its common law basis as to acts which purely malum
prohibitum.

The doctrine that ignorance of the law is no excuse
developed early in the history of the English common law
when all crimes were mala in se. Even after the body of
criminal law developed statutory offenses which were
malum prohibitum the presumption that everyone knew
the law still had a grain of truth to it. As is stated by the
Supreme Court of North Carolina in 1849 in the case of
State v. Boyett, 32 N.C. 336:

24

LOI SI GER PF I IL, SEI a i Be a Ree hen meee one

——

“In criminal matters the presumption most
usually accords with the truth. As to such as
are mala in se everyone has an innate sense of
right and wrong which enables him to know
when he violates the law, and it is of no con-
sequence if he be not able to give the name
by which the offense 1s known in the law books,
or tc point out the nice distinctions botween the
different grades of offense. As to such as are
mala prcohibita they depend upon statutes
printed and published and put within the reach
of everyone; so ne one has a right to complain
if a presumpticn necessary to the administra-
tion of law is applied to him.”

As the Court spoke in 1849 it was probably true that the
statutory law was put within the reach of everyone. The
body of law was extremely smail at that time, compared
with the vast proliferation of the statutes surrounding us

at the present time.

There are cases in American jurisprudence which hold
that in some circumstances knowledge that an act is
malum prohibitum is a prerequisite for conviction. The
Supreme Court of Massachusetts in 1935, in the case of
Commonwealth v. Benesch, 290 Mass. 125; 194 N.E. 905

stated in resolving a case involving the Blue Sky Laws:

“So long as the contracts had not beden
approved, a sale of the shares was malum pro-

hibitum because of the statute, and nothing
more. While no decision is this commonwealth
directly in point has been called to our atten-
tion, it has been held by excellent authority in
other jurisdictions that in order to sustain an
indictment for conspiracy to commit an offense
which, like that here involved, is malum pro-
hibitum only, belonging to a general type of
offenses which has been greatly expanded by
modern legislature in many fields, it must
appear that the defendant knew of the illegal
element involved in that which the combination
intended to accomplish. People v. Powell,
63 N.Y. 88; Landon v. United States, 299 Fed.
75. See, Welch v. Adams, 114 Mass. 323;
Vogel v. Brown, 201 Mass. 261; 87 N.E. 686;
People v. Flack, 125 N.Y. 324; 26 N.E. 267.
We believe this is sound law when the charge
is conspiracy.”

Furthermore, the Supreme Court in Lambert v.
California, (1957) 355 U.S. 225; 78 S. Ct. 240 held
unconstitutional a registration statute of the Los Angeles
Municipal Code:

“We believe that actual knowledge of the duty
to register or proof of the probability of such

knowledge and subsequent failure to comply are
necessary before a conviction under the
ordinance can stand. ..... Where a person
did not know of the duty to register and where
there was no proof of the probability of such
knowledge, he may not be convicted con-
sistently with due process. Were it otherwise,
the evil would be as great as it is when the law
is written in print too fine to read or in a
language foreign to the community.”

Under the current state of the law, a citizen of Oregon
commits only an infraction when he posseses one ounce
or less of marijuana. This will probably be true in
California as of January 1, 1976. This same citizen would,
by the same act, be committing a federal felony. There
are none of the usual indicia of a federal offense
involved: No traffic over state lines, no communication
over state lines, no contact with a federally insured
institution. The act involved is purely local and may be
only an infraction of the state law. There is no
requirement in the law itself that the unsuspecting citizen
be aware of the existence of the federal law. Making such
a morally innocent act felonious with no requirement of
knowledge does not comport with due process.

Petitioners submit that with such a law as they are
charged with violating there should be a requirement of

27

publication and a showing tnat they either knew or
should have known that their malum prohibitum act was
illegal.
CONCLUSION

Based on the foregoing argument and authorities it is
respectfully suggested to the court that the questions are
of widespread and general importance which have not
been, but should be, decided by this Court. It is further
suggested that the decision of the Court of Appeals is in
conflict with applicable decisions of other circuits, and
has so far departed from the accepted course of judicial
proceedings as to call for an exercise of this Court's
power of supervision. For those reasons, it is respectfully
suggested that the Court should grant its Writ of
Certiorari to the Court of Appeals for the Ninth Circuit
and reverse the judgment of that court.

Respectfully submitted,

ROBERT W. FRASER AND
SAMUEL FRIZELL

by:
SAMUEL FRIZELL
Attorneys for Petitioner

DO NOT PUBLISH

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

Unitep Staves or AMERICA,
Plaintif--\ppclee, |
Vs,

No. 74-3031
Duncan Scorr MacKrnzim,

Defcrdant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

- : No. 74-3032

RicHarp Sreven Boxpar,

Defe ndant-Appellant. | MEMORANDUM

« y *

| March 25, 1975]

Appeal trom the United States Distriet Court
for the Southern District of California

Before: BROWNING and WRIGHT, Circuit Judges, and
ZIRPOLI,* District Judge.

Dunean Scott MacKenzie and Richard Steven Bondar appeal
from their convictions, after jury trial, of possession of 629 pounds
of marijuana with intent to distribute and conspiracy to possess
the marijuana in violation of 21 U.S.C. sections 841(a)(1); S46.
They raise six issues on appeal. We affirm.

Appellants first argue that the searches of their respective ve-
hicles were made without probable cause. At the hearing on the

*Honoradle Alfouso J. Zirpoli, United States District Judze for the
Northern [Mstrict of California, sittine by designation.

29

= Vnited Slates of America vs.

notion to Suppress the marijuana, after receiving testimony from
several law enforcement officers and from appellant Bondar, the
trial court concluded that the officers had probable cause to search
both vehicles. The agent who stopped and senrehed the Chevrolet
Mackenzie was driving testified that he first: saw it parked in a
notorious “drep™ area near the border with Mexico im Calexico,
California. He noticed that it had special air suspension shock
absorbers similar to those often used on “load” cars to transport
marijuana and that, despite these special shock absorbers, it was
sitting low in the back and its rear tires, although new, were
bulging. He therefore obtained the services of Rex, the local
marijuana-sniffing dog, which signalled that there was marijuana
in the trunk of the car. He thereupon decided to watch the ear.
Several hours later, appellant MacKenzie got into the Chevrolet
and drove toward the interstate highway leading out of town. The
agent, along with other officers assisting in following the Chevrolet,
then observed that the car was travelling in tandem with a van,
which he testified was a common modus operandi of drug smug-
glers. The officers observed the cars travelling in this tandem
arrangement for some 35 miles, usually only 100 yards apart and
never more than one-quarter mile apart. While so following both
vehicles they were informed that the van had once flashed its
headlights several times when there was no traffie approaching,
as if to signal the other vehicle. They stopped both vehicles,
searched the trunk of the Chevrolet, found the marijuana, and
arrested both MaeKenzie and Bondar, who was driving the van.
Viewing the evidence in the light most favorable to the appellee,
as we must, there is no question that the trial ecourt’s finding that
there was probable cause to search the MacKenzie vehicle was not
elearly erroneous. See [ ‘nited States v. Patterson, 492 F.2d 995
(9th Cir. 1974). While the search of the Bondar vehicle presented
a close question, given the tandem arrangement, signalling and the
discovery of the marijuana, which confirmed the officers’ suspi-
cions, the trial court was not clearly in error in finding they had
probable cause to search the van.

Appellants’ second argument is that the officess should have
obtained warrants before searching the vehicles. The government
relics upon the automobile exeeption to the warrant requirement,
See Carroll rv. Uniled Slates, 267 U.S. 182 (1925). The trial eourt
found the agent’s failure to obtain a warrant te search the Chevre-

30

Duncan Neott MacKenzie, et al. 3

let during the several hours between the time he first observed
it and the time MaeKenzie drove it away was justified: we sce
hoe reason to overturn this finding. See Uauiled Nlatcs v. Church.
490 F.2d 353 (oth Cir, 1974). Bondar arenes that the warrantless
search of the van is not justified since the officers had taken him
intu custody and driven the van back to their offices prior to
searching it, relying on Preston v. United Ntates, 376 US. 364
(1964). But Presten applies only to attempts to justify a search
as incident to an arrest. Cady v. Dombrowski, 413 US. 433, 444
(1975). Here, the trial court. did not uphold the search because
it was incident to an arrest. Rather, it found that the officers had
probable cause to search the vehicle at the time they arrested
Bondar. Thus, under the doctrine of Chambers v. Moroncy, 399
US. 42 (1970, they were permitted to defer their search to a
more convenicnt time. See also Coolidge v. New Hampshire, 403
U.S. 443, 463 (1971).

Third, appellants argue that admission of their answers to vari-
ous initial inquiries the officers made of them when they stopped
them violated their rights under Virenda v. Arizena, 384 U.S. 436
(1965). Tt appears that they argue that the whele paneply of
warnings required by that case should be applied whenever an
investigation has “focussed” sufficiently to justify stopping a
vehicle. They cite no authority for this novel proposition, and we
see no reason to adopt it. See Loire v. United States, 407 F.2d 1391,
1393-94 (9th Cir. 1969).

Fourth, appellants urge that there was not sufficient evidence to
support their convictions. They do not challenge any of the jury
instructions; the court must therefore rejcet their argument if
there was sufficient evidence to permit the jury rationally te eon-
clude that they were guilty bevond a reasonable doubt. United
States v. Nelson, 419 F.2d 1237 (9th Cir. 1969). There clearly
was sufficient evidence to convict MacKenzie on both counts:
again, as to Bondar, this appeal presents a more difficult question.
To justify the conviction the prosceution necded to tie him to the
marijuana found in the trunk of the Chevrolet. In addition to the
evidences diseussed shove concermming the tenden. arrar gement, the
jury had before it the facts that when he was stepped Bondar
denied any scquaintanee with Ma-Kenzie while be had. im the
glove compartmeat of the van he was driving, various letters

31

4 United Slates of America vs.

addressed to or from MacKenzie, who resided in the same town he
did. In light of this additional evidence of Bondar's CONSCIOUSNESS
of guilt, this court cannot hold that the jury could not rationally
conclude that he was aware of, and participating in, the trans-
portation of the marijuana.

Fifth, appellants argue that the trial court erred in failing to
sever their trials. But they never moved for severance; while it
might have been a wiser tactical decision for them to seek separate
trials, it was not clear error for the trial court to fail to order
such severance sua sponte.

Finally, appellants attack the constitutionality of prohibitions
against possession and use of marijuana on the theory that such
conduct is not a moral wrong but merely malum prohibitum. Thus,
they reason, the statute must, to satisfy due process, require proof
that they actually knew that possession was prohibited. This argu-
ment is frivolous since convictions under these statutes have
repeatedly been affirmed.

The judgments appealed from are affirmed.

32

PROOF OF SERVICE BY MAIL

STATE OF CALIFORNIA, COUNTY OF RIVERSIDE

lam acitizen of the United States and a resident of the
county aforesaid; | am over the age of eighteen years and
not a party to the within entitled action; my business
address is: 1509 North Main Street, Santa Ana, California
92701. On , | served the within
PETITION FOR WRIT OF CERTIORARI on the following:
Solicitor General of the U. S.

Department of Justice U. S. District Court
U. S. Courthouse
Washington, D. C. 20530 312 North Spring Street

United States Court of Appeals OS Angeles, Calif. 90012
Ninth Judicial Circuit
Seventh and Mission Streets U. S. Attorneys Office
P.O. Box 547 12th Floor

312 North Spring Street
San Francisco, Calif. 94101 Los Angeles, Calif. 900012

by placing a true copy thereof enclosed in a sealed
envelope with postage fully prepaid, in the United States
mail at Santa Ana, California.

| declare under penalty of perjury that the foregoing is
true and correct.

Executed on 1975, at Santa
Ana, California.

JACK GALLAGHER

33

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_1061%3A1. Public record. Not legal advice.