Memorandum — MacKenzie v. United States

In the Supreme Court of the United States

OCTOBER TERM, 1975

No. 74-1346

DUNCAN SCOTT MACKENZIE AND

RICHARD STEVEN BONDAR, PETITIONERS

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

Petitioners contend that evidence was unlawfully

seized from their vehicles, that a statement made by

petitioner Bondar to officers before receiving Miranda

warnings should have been excluded from evidence, and

that the application of the Controlled Substances Act

to marijuana is unconstitutional.

After a jury trial in the United States District

Court for the Southern District of California, petitioners

were convicted of possessing and conspiring to possess

629 pounds of marijuana, in violation of 21 U.S.C. 841

(a)(l) and 846. Petitioner MacKenzie was sentenced to

two years’ imprisonment and petitioner Bondar was

sentenced to the custody of the Attorney General under

the Federal Youth Corrections Act (18 U.S.C. 5010).

The court of appeals affirmed in an unpublished opinion

(Pet. App.).

2

The evidence, which is summarized in the opinion

of the court of appeals (Pet. App. 30-32), showed that

on January 25, 1974, a federal agent observed an

unoccupied Chevrolet automobile parked near the

Mexican border in Calexico, California, in an area

frequently used by smugglers for narcotics “drops.”

The agent noticed that the car was fitted with heavy-

duty air-suspension shock absorbers of the type commonly

installed on cars used to smuggle marijuana and that

despite the special shock absorbers, the vehicle was sitting

low in the back and its rear tires, although new,

were bulging. A dog trained to detect the scent of mari-

juana was brought to the scene and indicated by his

reaction that the drug was present in the trunk of

the car.

Federal agents undertook a surveillance of the un-

occupied Chevrolet. After several hours petitioner Mac-

Ken’.e got into the car and drove away on an interstate

highway. The agents followed and observed that the

Chevrolet was traveling in tandem with a van, a common

modus operandi of drug smugglers. The Chevrolet and

the van traveled together for some 35 miles, usually only

100 yards apart and never separated by more than a

quarter of a mile. After the van had flashed its head-

lights several times when no traffic was approaching,

as if to signal the Chevrolet, the agents stopped both

vehicles.! Petitioner Bondar, the driver of the van, in

response to the agents’ inquiry, denied knowing Mac-

Kenzie. The agents searched the Chevrolet’s trunk and

seized 629 pounds of marijuana. The van, which was

subsequently searched at DEA headquarters in Calexico,

contained letters addressed to MacKenzie.

'In addition to the agents following the vehicles in an automobile,

another agent maintained surveillance from a small plane flying

over the highway (Tr. 99). The flashing lights by the van were

observed by the agent maintaining air surveillance and that

fact was communicated to agents on the ground (Tr. 199).

3

1. Contrary to petitioners’ contention, the agents were

justified in searching both vehicles without obtaining

search warrants. An agent observed the low sitting car

with special shock absorbers parked in a notorious drug

trafficking location, a trained dog signalled that there

was marijuana in the trunk, and this car was then driven

in tandem with a van, a common modus operandi of

drug smugglers. These facts established probable cause

for the search of the vehicle. Carroll v. United States,

267 U.S. 132.

Contrary to petitioners’ contention (Pet. 17-19), a

warrant was not required merely because the agents

deferred a search of the car until after petitioner Mac-

Kenzie appeared and drove it away. Although petitioner

MacKenzie did not appear for several hours, and in

retrospect it might have been possible to secure a warrant

before his arrival, it was equally likely at the time that

MacKenzie would appear and drive the car away soon

after the agent initially observed it. Probable cause

must be determined on the facts confronting the agents

at the time; hindsight is an improper criterion for

evaluating the need for a warrant. See, United States

v. Church, 490 F.2d 353, 354-355 (C.A. 9), certiorari

denied, 416 U.S. 983. In any event, the agents were

not required to secure a warrant as soon as they had

obtained probable cause. See Hoffa v. United States,

385 U.S. 293, 310.

When the agents saw the van driven by petitioner

Bondar proceeding in tandem with the car believed to

contain a large quantity of marijuana and learned that it

appeared to be signalling the other vehicle with its

headlights, they had probable cause to stop and

search it without a warrant in view of the possibility

of flight on the open highway and the likely presence

of contraband. Carroll v. United States, supra. The

PB 3 PION Rs Ri ERA LI WD NIE BE TOON NE EM

4

court of appeals correctly held, since the officers could

lawfully have searched the van without a warrant when

they stopped it, they were entitled to postpone the search

until the vehicle was removed to a more convenient

location. Chambers v. Maroney, 399 US. 42. See

also, Coolidge v. New Hampshire, 403 U.S. 443, 463.

2. At trial, Agent Walker testified, over petitioner

Bondar’s objection, that after both vehicles were stopped,

he approached petitioner Bondar, identified himself as a

government agent conducting a narcotics investigation,

and asked him “who his friend was in the vehicle just

to the east” (Tr. 152-153). Bondar replied that he “didn’t

have any friend or denied any knowledge of knowing

anyone in the vehicle” (id. at 153). Petitioner Bondar

contends that the agent’s testimony should have been

excluded because he had not been given Miranda warn-

ings prior to the inquiry.

Miranda warnings are designed to prevent the

coercion that may result from a police-dominated inquisi-

torial atmosphere, and they are required when the person

being interrogated is “in custody at the station or other-

wise deprived of his freedom of action in any significant

way.” Miranda vy. Arizona, 384 U.S. 436, 477. But this

Court’s Miranda decision was not intended to preclude

law enforcement officers from conducting a_prelim-

inary on-the-scene investigation to determine whether

a crime had been committed or was in progress. See 384

U.S. at 477-478. The agent’s inquiry to petitioner

Bondar concerning his acquaintance with the driver

of the vehicle that Bondar had been following was

made without any indication to petitioner that he was

under arrest and, in the circumstances, was a reason-

SEINE EPL LILES DBR DOL IONED OF GIDE ILIA

5

able preliminary question. See Love v. United States,

407 F.2d 1391 (C.A. 9);* United States vy. Hall, 421

F.2d 540 (C.A. 2), certiorari denied, 397 U.S. 990.2

3. Finally, petitioners claim (Pet. 24-28) that their

convictions for possession of 629 pounds -of marijuana

were unconstitutional because the Controlled Substances

Act does not require, and the government failed to prove,

that they knew that possession of marijuana was unlawful.

They argue that since the offenses punished by the

Controlled Substances Act are malum prohibitum rather

than malum in se, ignorance of the law is a defense.

But, as the court below correctly concluded (Pet. App. 32),

due process does not require proof that petitioners knew

that possession of marijuana is illegal. See United States

v. Balint, 258 U.S. 250: see also United States v.

International Minerals Corp., 402 U.S. 558.

It is therefore respectfully submitted that the petition

for a writ of certiorari should be denied.

RoserT H. Bork,

Solicitor General.

Jury 1975.

?Petitioner Bondar’s suggestion (Pet. 22-24) that Miranda warnings

were required because there was probable cause to stop and search

his vehicle, and, thus, suspicion had focused on him, is insubstantial.

This contention is founded on the erroneous premise that the

) existence of probable cause necessarily results in any police question-

ing being custodial interrogation. But probable cause to stop

and search a vehicle does not automatically create a potentially

coercive atmosphere requiring Miranda warnings. See United States

v. Hall, supra, 421 F.2d at 543. Rather it is the nature of the

question asked and the circumstances surrounding the inquiry that

are determinative. And, as shown in the text, neither the content

nor the context of the agent’s question to petitioner Bondar

required the giving of Miranda warnings.

Rite. TAL SRO PAT. RAR PINT

Ba oe ae ae