# Petition for Writ of Certiorari — Hickman v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_1673%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1976 - **Citation:** 423 U.S. 1050 ## Text ae = we Fry; Us, fR OCT 2 1975 IN THE SUPREME COURT OF Ae CI hy ath hippies © K aes 5-516 DONALD EUGENE HICKMAN, THOMAS HENRY LANDERS, Petitioners, vs. UNITED STATES OF AMERICA, Respondent. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT FREDERICK L. LINK and CHARLES L. GOLDBERG LINK & GOLDBERG 2320 Fifth Avenue — Suite 200 San Diego, CA 92101 Telephone: (714) 232-6671 Attorney for Petitioner, DONALD EUGENE HICKMAN JOHN J. MCCABE, JR. MITCHELL, SCHMIDT, D'‘AMICO, MCCABE & STUTZ 2170 Fourth Avenue San Diego, CA 92101 Telephone: (714) 236-1133 Attorney for Petitioner, THOMAS HENRY LANDERS Soa Ratna Ramee tb ee as PE Ea nian SOSA. dae Cina aa ing Bc IN THE SUPREME COURT OF THE UNITED STATES October Term, 1975 No. DONALD EUGENE HICKMAN, THOMAS HENRY LANDERS, Petitioners, vs. UNITED STATES OF AMERICA, Respondent. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT FREDERICK L. LINK and CHARLES L. GOLDBERG LINK & GOLDBERG 2320 Fifth Avenue Suite 200 San Diego, CA 92101 Telephone: (714) 232-6671 Attorney for Petitioner, DONALD EUGENE HICKMAN JOHN J. MCCABE, JR. MITCHELL, SCHMIDT, D'AMICO, MCCABE & STUTZ 2170 Fourth Avenue San Diego, CA 92101 Telephone: (714) 236-1133 Attorney for Petitioner, THOMAS HENRY LANDERS TOPICAL INDEX Table of Authorities PETITION FOR WRIT OF CERTIORARI OPINION BELOW JURISDICTION QUESTIONS PRESENTED FOR REVIEW CONSTITUTIONAL PROVISIONS INVOLVED STATEMENT OF THE FACTS REASONS FOR GRANTING THE WRIT A. The Decision Below Impermissi- bly Reweighs the Evidence and Finds Probable Cause to Search the Decoy Boat Even Though the Trial Court Did Not Find Prob- able Cause The Facts Introduced at the Hearing on the Motion to Suppress do not Warrant a Finding of Probable Cause to Search the Decoy Boat CONCLUSION APPENDIX A Opinion of the Court of Appeals dated September 2, 1975 ll ll 14 16 ~< TABLE OF AUTHORITIES Cases Campbell v. United States, 373 U.S. 487 (1963) Chambers v. Maroney, 399 U.S. 42 (1970) Henry v. United States, 361 U.S. 98 (1959) Jackson v. United States, 353 U.S. 862 Silverman v. United States, 365 U.S. 404 (1961) United States v. Boston, 510 F.2d 35 (9th Cir. 1974) Wong Sun v. United States, 371 U.S. 471 (1963) Statutes 21 U.S.C. §841(a) (1) 21 U.S.C. §846 21 U.S.C. §952 21 U.S.C. §960 21 U.S.C. §963 28 U.S.C. §1254(1) Constitution U.S. Constitution, Amendment IV ii Page 12 16 14 12 13 13 13 DSS as ae vata AEN coir hi dh Re Ratt Ae A centile i Ti SCHR aig Ota IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1975 No. DONALD EUGENE HICKMAN, THOMAS HENRY LANDERS, Petitioners, vs. UNITED STATES OF AMERICA, Respondent. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT The Petitioners, Donald Eugene Hickman and Thomas Henry Landers, respectfully pray that a Writ of Certiorari issue to review the judgment of the United States Court of Appeals for the Ninth Circuit entered on September 2, 1975. OPINION BELOW The Court of Appeals rendered its Opinion affirming the conviction of Peti- tioners on September 2, 1975. A copy of the September 2, 1975 Opinion, which is to be reported officially, is attached as Appendix A. JURISDICTION On September 2, 1975, the Court of Appeals entered judgment affirming the convictic: of Petitioners for conspiracy to import, conspiracy to possess with intent to distribute, importation, and possession of marijuana in violation of 21 U.S.C. §§ 963, 252, 960, 846 and 841(a) (1). Jurisdiction to review the judgment of the Court of Appeals is con- ferred upon this Court by Title 28, United States Code, Section 1254(1). QUESTIONS PRESENTED FOR REVIEW Whether there was probable cause to search the decoy boat, and if not, did that search taint the search of the load boat. ee or ie err cores EE gee i nme 2 Te ath Cet NR, athe Ae CONSTITUTIONAL PROVISIONS INVOLVED United States Constitution, Amendment IV: The right of the people to be secure in their persons, houses, papers and effects, against un- reasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and parti- cularly describing the place to be searched and the persons or things to be searched. STATEMENT OF THE FACTS On May 12, 1973, Agent ROBERT DAVIS received information from a confidential informant that a 24-foot, white power cruiser had arrived in Mission Bay, San Diego [R.T. p. 5} .2/ The confidential in- formant had seen the boat once previously, on a Friday, April 20, 1973 [R.T. p. 5]. The confidential informant told DAVIS that the number of the boat was CF9802FB and that two white males were operating the boat, one of which he knew to be THOMAS HENRY LANDERS [R.T. pp. 35-37]. 1/ "R.T." refers to the Reporter's Tran- script of the hearing on the motion to suppress. . —_ DAVIS then made a Department of Motor vehicles inquiry on the registration num- ber of the boat, and found the registered owner of the boat to be DONALD EUGENE HICKMAN [R.T- P- 6]. DAVIS also queried his Cadpin system for information on DONALD EUGENE HICKMAN and learned that HICKMAN was a4 Customs suspect in a previ- ous matter involving smuggling of pills [R.T. p- 7]- The Cadpin printout indi- cated that this information on HICKMAN was given by an agent in Tecate on August 30, 1972 [R.T- PP- 42-43]. On the evening of May 12, 1973, DAVIS went to the Islandia Marina in Mission Bay and talked with a security guard who told him that he had observed a boat come into the Marina with two white males operating the vessel, and he then observed one of them walk away from the Marina area toward the Dana Marina Inn, also on Mission Bay [R-T- PP- 7-8]. DAVIS then went to the Dana Marina Inn, and checked the registration in the hotel for Friday evening the night before, and found a registration under the name of THOMAS LANDERS [R.T- p- 81]- LANDERS had listed 4. ee a EE Ce ee et eS ees 6 ee ERT Wi MEI OAC a i ae a taka ot? aah Bop aT i ae eee Cpe California license plate number JM6300 on the registration card, and had checked in some time after eleven o'clock on Friday night, but had already checked out [R.T. p- 40]. DAVIS then made inquiries to the Department of Motor Vehicles on the license plate number, and the license number was found to come from a boat trailer registered to a DONALD JONES from Modesto, California [R.T. p. 9]. A day or two later, DAVIS contacted Deputy HOLLOWAY at the Modesto Sheriff's Department, and asked if he was familiar with HICKMAN or LANDERS. HOLLOWAY stated that HICKMAN was currently under investi- gation for suspicion of trafficking in narcotics [R.T. pp. 11-12]. DAVIS also made an inquiry of the Department of Motor Vehicles as to any other vehicles or boats owned by THOMAS LANDERS, and learned that LANDERS was the registered owner of a 24-foot power cruiser of the same type _ and model as HICKMAN with hull number CF9803FB [R.T. p. 12]. On Friday, May 25, 1972, surveillance was resumed, and at about 9:15 P.M., DAVIS De received a call from Agent GANNER who said that he had observed the boat trailer (license number JM6300) being pulled by a Chevy carryall vehicle (license number 287GCZ) at the Dana Ramp [R.T. p. 15]. GANNER had seen the Chevy carryall and the trailer being pulled up the ramp, and the boat trailer was empty and dripping wet [R.T. p. 17]. While DAVIS was on his way over to the Dana Ramp area, he received a call over the radio that the vehicle had left the trailer behind, and he him- self then spotted the vehicle being driven and parked at the west end of the Islandia Hotel, in Mission Bay [R.T. pp. 46-47]. He observed GLORIA GWEN HICKMAN exit the vehicle and walk towards the ramp area for the Islandia Marina [R.T. p. 16]. A male walked over to GLORIA HICKMAN from Pier D, had a few words with her, and then they both walked back over to the carryall. DAVIS overheard GLORIA HICKMAN say something like, "Why didn't you tell me I could drive straight across?" [R.T. p. 16]. The carryall then was driven from the west end of the Islandia Hotel to the Dana Hotel across the street [R.T. p. 17]. 6. CRESS bint. DAVIS then went over to Pier D of the Islandia Marina and observed there a boat which was secured and fully covered by a tarpaulin which overlapped the edge of the railings and also covered about a foot of the entire hull [R.T. p. 48]. In order to see the hull identification number, DAVIS lifted up the portion of the tarpau- lin which covered the number and observed the number to be CF9802FB [R.T. p. 30]. DAVIS could tell what type of boat it was even without pulling up the tarp, and felt it was a 24-foot fiberglass, high-speed V-hull boat [R.T. p. 72]. While DAVIS was engaged in searching and surveilling the moored boat in slip D-9, Agent GORE who had been called by DAVIS checked the Dana Inn registration records and determined that GLORIA HICKMAN had registered into the Dana Inn as herself with another individual [R.T. p. §i}. At 10:15 A.M., on May 26, 1973, Agents FRED MATTESON and CLYDE BURNETT observed a Chevrolet "Dooley" pickup truck, back up to the empty boat trailer and a male and a female proceeded to hook it up to 76 ee ae Prsie REE se EGBA the trailer [R.T- P- 123]. Both indivi- duals got into the truck and pulled the trailer around the parking lot and over to the Dana Ramp. The truck and trailer backed down the boat launching ramp and a 24-foot fiberglass boat came straight in onto the trailer. As the boat was pulled onto the trailer, MATTESON observed that the bow number was CF9802FB [R.T- PP- 124- 125]. MATTESON then called DAVIS over the radio, told him what he saw and DAVIS told him to stop the boat which was now being pulled away by the pickup [R-T. P- 125). As the pickup pulled away from the ramp, MATTESON and BURNETT pulled their vehicle in front of the truck and stopped it. MATTESON went over to the driver's side of the truck and stated to the driver, “I'ma special agent with United States Customs. I'd like to speak to you for a minute." [R.T. P- 126]. He then asked the driver to get out of the truck and asked for his driver's license. The driver gave him his driver's license and it indicated that the driver was DONALD EUGENE HICKMAN [R.T. P- 127]. The other passenger in the cab of the pickup truck 8. . SpA TRE BO NNR TRC e ee AS enna a AN nl a aM asf was identified by BURNETT as GLORIA GWEN HICKMAN [R.T. p. 209]. Two males were in the boat, THOMAS HENRY LANDERS and DONALD LEE PRATER [R.T. p. 128]. MATTESON then asked the individuals which one owned the truck, trailer, and boat, and DONALD HICKMAN replied that it was his [R.T. p. 134]. MATTESON then asked the subjects where they were coming from. PRATER replied that they had been fishing [R.T. p. 177]. MATTESON asked where they had been fishing, and LANDERS replied in the area of the Coronado Islands [R.T. p. 178]. MATTESON asked, "We'd like to search your boat. May we search your boat?" to which HICKMAN replied, "Yes, you can search it, I don't care." [R.T. p. 139]. Since the search did not reveal any contraband, one of the agents recommended that they take a look at the other boat moored at the Islandia Marina to see if there was any difference in the configura- tion [R.T. p. 27]. Agent GORE then left the Dana Ramp area and went back to the boat moored at the Islandia Marina to board that vessel and search it [R.T. 9. | amie SOP EM etre PR mR SUE RAB SI OW 5 START as eT EELS pp. 92-93]. He went over to the vessel, pulled back the tarpaulin that covered the vessel, and boarded it, along with two other Customs Patrol Officers [R.T. pp. 83, 194]. For approximately fifteen or twenty minutes he, and the other offi- cers conducted a search of that boat observing the interior configuration [R.T. pp. 83, 86]. GORE returned to the Dana Ramp area, boarded the boat that had been stopped by the agents, and upon looking at the in- terior configuration, could immediately notice that it was aifferent from the one at the Islandia Marina, although agents BURNETT and MATTESON had not noticed any- thing [R.T. P- 96]. He noticed that the deck on the boat at the Dana Ramp was com- pletely flat, with no step down into the cuddy cabin, whereas the boat at the Islandia Marina had a step down into the cuddy cabin [R.T. PP- 85-86]. He then pulled up the carpet in the cabin, noticed a manhole type cover which he removed, finding marijuana [R.T- P- 86]. 10. iiaisedsss Ace ew SAA, REASONS FOR GRANTING THE WRIT A. The Decision Below Impermissi- bly Reweighs the Evidence and Finds Probable Cause to Search the Decoy Boat Even Though the Trial Court Did Not Find Prob- able Cause The majority opinion characterizes Agent GORE's search of the decoy boat as involving a "search for registration papers and his concurrent observation of the configuration of the interior of the boat." [Opinion of the Court, Da Fie Apparently, the majority relies on GORE's statement in the record that he went to the decoy boat to find out who it belonged to [R.T. p. 82], and first checked for registration on it to see who the vessel came back to [R.T. p. 83]. This, however, was not GORE's purpose in searching the decoy boat, as the dissenting opinion cor- rectly points out. DAVIS stated that "it was recommended by one of the CPO's that we take a look at the other identical boat to see what difference there was in the interior configurations" [R.T. p. 27]. Furthermore, the trial court held that the ll. Se Sei enemas an OR FOE rele search of the decoy boat: "would be better characterized as an inquiry to determine whether or not the boat that they had a right to search looked like the other boat that was supposed to be identical with the small hull number. [R.T. p. 277]. This statement by the trial court ought to be construed as a finding of fact based upon the credibility of the wit- nesses. There was a discrepancy between GORE's and DAVIS' testimony as to the pur- pose behind the search. The trial court apparently believed DAVIS, the case agent, rather than GORE, an assisting agent. The findings of a District Court on a pretrial motion to suppress are binding upon a reviewing court unless they are clearly erroneous. Campbell v. United States, 373 U.S. 487, 493 (1963); Jackson v. United States, 353 F.2d 862, 865 (1965). It is also apparent that the Court of Appeal concurred with the trial judge's finding that the discovery of the mari- juana was a direct result of the search of the decoy boat. Thus the Court of 12. 2 pth ureter sne es Appeal had to find probable cause to search the decoy or the search of the load boat would have been invalid under Wong Sun v. United States, 371 U.S. 471 (1963). The trial court did not find probable cause, but overcame the Wong Sun hurdle by declaring that the search of the decoy was not really a search since it produced nothing and also that there was no stand- ing to challenge that search [R.T. p. 271]. That erroneous legal conclusion was not adopted by the Court of Appeal, and cor- rectly so. See, Silverman v. United States, 365 U.S. 505, 511 (1961); United States v. Boston, 510 F.2d 35 (9th Cir. 1974). However in finding probable cause the Court of Appeal had to reweigh the credibility of the witnesses and reach a different factual conclusion as to the state of the evidence. Nothing in the court's opinion suggests that the trial judge's finding of fact was "clearly erroneous" and therefore the Court of Appeal was in error. 13. | ee oy Seat as ee ee The Facts Introduced at the Hearing on the Motion to Suppress do not Warrant a Finding of Probable Cause to Search the Decoy Boat The majority opinion relied on the following facts as supporting probable cause to search the decoy: 1. Both boats had the same bow number. Hickman's statement of owner- ship of the trailer when it was registered to a third party. The reliable informant's tip of seeing the same boat with peti- tioners at an earlier time. Petitioners’ unusual activi- ties in the area noted for smuggling violations. Only the first of these facts applies directly to the decoy boat. While the duplication of the bow number may be sus- picious activity, it cannot be equated with probable cause to search, Henry v. United States, 361 U.S. 98, 104 (1959). All the other factors which arguably 14. ee could have provided probable cause to search the load boat [and also the decoy boat, according to the majority opinion] became less and less compelling as the search continued without negative results. This dilution of whatever probable cause existed previously is not discussed by the Court of Appeal. Rather the court speaks of the "need" for ascertaining the Ownership of the decoy boat. The dissent- ing opinion points out, there was no need to determine whether HICKMAN was lying in claiming ownership of the load boat, since it was already being searched pursuant to his consent. If the searching agents had any question as to HICKMAN's authority to consent to the search, it is odd that they searched the load boat for an hour before searching the decoy boat to determine its ownership. Finally, even if a purpose of the search was to determine its ownership, the majority opinion speaks in terms of the "need" to determine ownership ‘as jus- tifying the warrantless search. It isa fundamental precept of the law that though the "need" to search may justify a search is. without a warrant, the search itself must nonetheless be based upon probable cause, Chambers v. Maroney, 399 U.S. 42, 51-52 (1970). CONCLUSION For the foregoing reasons, the Peti- tioners Donald Eugene Hickman and Thomas Henry Landers request that a writ of certiorari issue to review the judgment of the United States Court of Appeals for the Ninth Circuit. Respectfully submitted, LINK & GOLDBERG By: CHARLES L. GOLDBERG Attorney for Petitioner, DONALD EUGENE HICKMAN MITCHELL, SCHMIDT, D'AMICO, McCABE & STUTZ By: JOHN L. MCCABE, JR. Attorney for Petitioner, THOMAS HENRY LANDERS 16. ee ae _———< ED ARE AWD AD BA ORO BLOM CAEP NA NEB le th TE ERO A AN MLNS tigi hep ae atest a ete ght PIR EAE APPENDIX "A" UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT > UNITED STATES OF AMERICA, Plaintiff-A ppellee, Vs. . No. 74-2559 DonaLp EvGENE Hickman, Defendant-Appellant. OPINION Ww’ UniTep STATES OF AMERICA, Plaintiff-A ppellec, vs. No. 74-2560 Tomas HEeNRy LANDERS, re ee [September 2, 1975] Appeal from the United States District Court for the Southern District of California Before: BROWNING and WRIGHT, Circuit Judges, and ZIRPOLI, District Judge.* WRIGHT, Circuit Judge: Appellants were each convicted on four counts of conspiracy to import, conspiracy to possess with intent to distribute, and impor- tation and possession of a controlled substance, The ease was tried without a jury on stipulated facts and the testimony of a single witness. Appellants argue that the trial judge erred in failing to suppress approximately a ton of marijuana which they allege was uncovered in an unlawful search. We affirm. Appellants were involved in a smuggling operation involving the importation of large quantities of marijuana from Mexico by boat. Appellants had purchased identical 24-foot, white power *Of the Northern District of California. tees arson nae ES Bes DE ise AGT Ce ES 2 (United States of America es. cruisers. They then had altered one boat by extending its deck into the forward euddy eabin area and creating a hidden com- partment extending the leneth of the eraft whieh could be packed with a ton of marijuana brieks. Although each boat had been properly registered io its respective owner, the identifieation mum- ber on the side of Landers’ boat had been changed so that it carried the same registration number, CF9802FB, as that assigned to Hickman’s boat. One boat would be towed into Mexico by truck, packed with marijuana, and then launched at a Mexican port. It would then sail to Mission Bay in San Diego, be hauled from the water, then driven away without passing through customs. The other boat would then be sailed to the Mexican port by the first crew and returned to the United States on a trailer, passing through cus- toms on the basis of its identical bow number. The presentencing report indicated that appellants had undertaken this venture on three previous occasions and had been paid $10,000 for each delivery. On May 12, 1973, a special customs agent received a tip from a confidential informant that a 24-foot, white power cruiser with registration number CF9802FB had arrived in Mission Bay at 11:00 p.m. the night before under suspicious cireumstances with appellants Hickman and Landers on board. A check at the registration number of the boat indicated that it belonged to Hickman. A check at a nearby hotel revealed that Landers had registered there and had rented a slip for a boat. The car license number listed on the motel registration card, JM6300, proved to be that of a boat trailer registered to a third party in Modesto, California, Hickman’s home town, This trailer was used to transport. the appellants’ beats. From the Customs computer the agents learned that Hickman had been under suspicion for pill smuggling. The Modesto Sher- ift’s Office provided information from an informant which linked appellants with naveoties trafficking. .A subsequent search for information on Landers revealed that he owned an identical boat with a registration number only one digit different from Hick- man’s. A surveillanee of the Mission Bay area was rewarded on May 25 by a report that an empty boat trailer with license JM6300 Donald Eugene Hickman, et al. 3 was being pulled from the Dana launching ramp dripping wet. A customs agent soon located both the trailer and the towing truck. A woman, later identified by hotel records as Hickman’s wife, was seen leaving the truck and walking to meet an unidentified man coming from a nearby pier at Islandia Marina. The two then drove to the Dana Hotel and entered. Agent Davis, in charge of the surveillance operation, walked to the pier and observed a 24-foot boat covered with a tarpaulin which overlapped the edge of the boat and covered its bow num- ber. He lifted the tarpaulin sufficiently to ascertain that the regis- tration number was CF9802FB. Both the boat and trailer were kept under surveillance. The following morning the agents covering the trailer reported that a man and woman had taken the trailer and moved it to the Dana Ramp to pick up a power cruiser with the registration number CF9802FB. Agent Davis, who was watching the boat with the same number still moored at Islandia Marina, requested the agents at the launching ramp to stop the boat for questioning. Agent Matteson pulled his ear in front of the truck towing the second boat and stopped it. He identified himself as a customs agent and asked for identification. The driver of the vehicle was Hickman, the passenger was his wife, and the two men in the towed boat were codefendant Prater and appellant Landers. When agent Matteson asked who owned the truck, trailer, and boat, Hickman replied that he did. This reply conflicted with the fact that the trailer was registered to a third party. On ques- tioning, the group indicated that they had not made a customs declaration in San Diego although they indicated that they had been fishing near the Coronado Islands in Mexican waters. The parties stipulated at trial that: Agent Matteson stated, “We would like to search your boat; would you mind if we searched your boat?” Hickman replied, “No, I don’t mind; you can search it.” Agent Matteson then advised Hickman of his Constitutional rights to which Hick- man replied, “I understand; I'm willing to talk to you.” The agents began a search of the boat, noting that. it had an unusual configuration in that the cuddy cabin was not lower than the deck aft and that additional gas tanks had been installed = whhihande FEIN Reka Rig KA eee Si cae ead co ate Sesaswb ist Y Biase < — SF ee ere ne ERY OH EY, SONNY ENOL + United States of America vs. above deck. They began to examine materials in the stern of the boat and to dismantle the extra gas tanks. Agent Gore, who arrived at the Dana Ramp site shortly after the search began, decided to “try to find out who the other boat belonged to that was at Slip D-9 with the identical” registration number on its bow. R.T. 82, 83, 92. He returned to the moored boat, boarded it, and checked for registration." He looked around the boat and determined that its hull configuration conformed to the specifications which he had previously found in the manufac- turer’s brochures. Returning to the boat at the ramp, he began a search of the forward cabin area, found a manhole cut into the deck, and approximately a ton of marijuana bricks in the compartment underneath. Appellants were then arrested. Appellants argue that the evidence turned up in the seareh should have been suppressed. They assert that the initial deten- tion at the boat ramp was an arrest and that their responses to questions were thus improper because a Miranda warning was not given until later. They argue in the alternative that if the initial stop was not an arrest, there was no “founded suspicion” for it. Hence, they claim that any subsequent search was tainted.* Appellants also argue that the stop and the subsequent discov- ery of the marijuana were tainted by the two warrantless searches of the decoy boat while it was moored at the Islandia Marina. 1The parties stipulated that the decoy boat contained a temporary registration permit listing Hickman as the owner and CF9803FB as its registration number. CR22. 2Appellants argue that permission for the search was not given. After an evaluation of the testimony of the parties, the trial judge found that Appellant Hickman’s reply to the officer’s request amounted to “consent to search under these circumstances.” This is supported by the fact that during the search, Hickman approached the boat to determine “how bad you're tearing up my boat” and made no objection to the continuation of what was obviously a full-scale search. From the context of these statements it is clear that Hickman granted a general permission to search. See Schneckloth v. Bustamonte, 412 U.S. 218 (1973). Sk ee =e — ou Donald Eugene Hicknan, et al. I. MIRANDA WARYINGS Appellants contend that the initial stop of the truck and boat constituted a significant impairment ¢ their freedom and thus necessitated the warning required by Miranda v. «Arizona, 384 U.S. 486 (1966), before appellants were questioned. We do not agree. No weapons or threats were wed to cffectuate the stop. The subsequent questioning was not conducted in the “police dominated” and “compelling atmospher” to which Miranda ap- plics. 384 U.S. at 445, 478. The circumstances were essentially the same as those presented in the usual routine highway-stop-and-inquiry situation to which Miranda has been consistently held inzpplicable. See, e.g., Lowe v. United States, 407 F.2d 1391, 1393-91 (9th Cir. 1969); United States v. Smith, 441 F.2d 539 (9th Cr, 1971); see also United States v. Bekowies, 432 F.2d 8, 12 (9h Cir, 1970); cf. United States v. Montos, 421 F.2d 215, 221-23 (Sth Cir, 1970) (the fact that defendant’s exit was blocked by yostal inspector’s car does not mean that questioning of defendant was “custodial interroga- tion”). There is nothing in the record to support appellants’ conten- tion that the agents made a prior deternination to arrest appel- lants regardless of their responses to questioning and of the re- sults of any legitimate search which might follow. Since we have determined that appellants were not in a “police dominated” and “compelling atmosphere” from the time they were initially stopped for questioning until the time the Miranda warn- ing was given, their contention that Statments made during this period were improperly admitted against them must also fail. Appellants contend that the questionirg was inquisitorial, not investigatory. We disagree. An. officer naking an investigatory stop will often have some suspicion of the identity of the person apprehended and of his prior unobserved activity. It is the very purpose of the investigatory stop to allow the officer to confirm or deny these suspicions by reasonable questioning, rather than forcing in each instance the “all or nothine” choice between arrest and inaction. As we held in United States v. Camacho, 506 F.2d 994, 595 (9th Cir. 1974), “[mjere reques for written identifica- EMO ne te _ r 4 z = SDRC S LAE I GD ti ED BA DOE nae N se Nm Herre i ee ae a sas "OS (teks Ae. er a “ 6 United States of America vs. tion of a person, even a suspect, by law enforcement or security officers, does not necessitate the giving of Miranda warnings.” Agent Matteson’s questions to Hickman dealt merely with his identity, ownership of the boat he was towing, and where he had taken the boat. Each area of inquiry was thus directly related to the agents’ reasonable suspicion that smuggling activities were taking place which they had a duty to curtail. Since the ques- tioning did not go beyond the purpose of the investigatory stop, it cannot be found to have changed the situation into the type recognized by this court as requiring a Miranda warning. II. FOUNDED SUSPICION Appellants argue that the agents lacked founded suspicion to stop and question them, The record does not support them. The agents who stopped the appellants were confronted with sufficient factors to constitute a founded suspicion necessary to stop and question based on: (1) the diseovery that the appellants were involved with two identical boats with the same, supposedly unique registration number; (2) the tip from an assertedly reli- able informer that the boat with appellants aboard had earlier arrived in Mission Bay under suspicious cireunstances, corrob- orated by the registration number on the arriving boat and iden- tification of the appellants by motor vehicle and hotel registra- tion data; and (3) appellants’ unusual activities in an area noted for a high number of smuggling violations. While these factors might be insufficient standing alone, see, e.g., United States v. Larkin, 510 F.2d 13 (9th Cir. 1974) (tip of unidentified informer held insufficient by itself), the cumula- tive impact provided the customs agents a founded suspicion for stopping the boat and truck and questioning their occupants. III. SEARCH OF THE DECOY BOAT Appellants argue that the discovery of the ton of marijuans in the load boat was tainted by the two searches of the second beat which was moored at Islandia Marina. The first seareh eon- sisted of Agent Davis’ lifting the covering tarpaulin sufficiently to read the registration number on the bow of the moored boat. agg geaePotancs: Donald Eugene Hickman, et al. 7 The second involved Agent Gore’s search for registration papers and his concurrent observation of the configuration of the interior of the boat. Neither ean be characterized as an improper search. Appellants were required to have their boats marked with a unique registration number [46 U.S.C. § 1467 (1970); 33 CLER. § 174.1-174.7 (1974) ] which must be displayed on each side of the forward half of the vessel “in order that it may be clearly vis- ible.” Cal. Vehicle Code § 9853.2 (Supp. 1975); see also 46 U.S.C. $§ 1467(a) & 1470 (Supp. IIT, 1973). Agent Davis lifted the tarpaulin only enough to see the regis- tration number and corroborate the informant’s tip. Appellants had no “reasonable expectation of privacy” in this circumstance, since they were required to display the registration number for observation. Absent harassment) or intimidation, no violation of Fourth Amendment rights are involved in a “search” Which merely un- covers a registration number which by law must be displayed in a “clearly visible” manner. Here no untoward conduct on the part of Agent Davis was involved. Ife sought only to determine the identification of the boat following a tip by a reliable informer and evidence that the same bout had just been launched. (The boat trailer involved in the ealicr incident was reported leaving the launching ramp and the driver of the tow vehicle was seen picking up an unidentified male returning from this pier.) The boat was moored at a publie dock and no intrusion was made other than a minimal lifting of a canvas cover to expose the bow number. Similarly, the second search of the decoy boat was a proper one. In general, searches conducted outside the judicial process ure por se unreasonable subject to a few well-established excep- tions. Katz v. United Slates, 389 US. 347, 356 (1967). One exeep- tion is provided in circumstances where there is probable cause to believe that a crime has been committed and that the vehicle in question contains evidence of the crime and where there is danger that the suspect vehicle will escape the jurisdiction dur- ing the time necessary to obtain a judicial warrant. Chambers r Maroncy, 399 U.S. 42 (1970). Here the parties have stipulated that appellant Hickman gave permission to search the load boa. jlowever, the agents also had a Meat On aes eds boat Bose ee rae ta) 8 United States of America vs. probable cause to search it based on the factors, discussed above, which provided the founded suspicion for the stop, the fact that appellants reported that they had not made a eustoms declara- tion in San Diego but had come from Mexican waters, and Hick- man’s statement of ownership of the boat trailer at a time when it carried a license showing ownership by a third party. With the exception of the statement showing arrival from inter- national waters, these same factors apply to the decoy boat. The fact that it carried the same registration number as the load boat and was an identical model provided the agents with a strong inference that it was being used as part of a smuggling opera- tion. Since the boats were identical externally, the agents needed to determine the ownership of the decoy boat in order to deter- mine whether Hickman was lying in claiming ownership of the load boat and why the boats had the same registration number. Given the totality of these circumstances, Agent Gore had prob- able cause for entering the deeoy boat in search of its registra- tion papers and any indicia of ownership. Similarly, the evidence that it was being used by the appellants provided a basis for entering the decoy boat to compare its internal configuration with that of the boat being searched at the launching ramp. The search falls within the Chambers execption to the warrant requirement since the agents could reasonably believe that other members of the conspiracy might move it. At this stage in the investigation it was not evident how many persons were involved. Indeed the agents could not diseount the possibility that the reg- istered owner of the boat trailer was actively involved and in the area ready to assist in concealing evidence of wrongdoing. More- over, the agents could believe that, without evidence gained from the deeoy boat, the appellants and their co-defendants might have to be released after a fruitless search of the load boat. They then could have moved the decoy boat (as in fact was their plan). Hence there was more than a “generalized fear that an un- known person |would| move the vehicle.” United Séates v. Con- nolly, 479 F.2d 930, 935 (9th Cir, 1973). The only known oper- ator was not under arrest as in United States v. McCormick, 502 Kd 281, 287 (9th Cir. 1974) and evidence that the boat was currently being used in a criminal activity was not lacking as in McCormick. Althoueh the agents had known of the decoy boat's presence since the night before, they did not know until an hour = eee Donald Eugene Wickman, et al. 9 earlicr that there were two boats involved with the same regis- tration number. Lacking that knowledee and the information elicited from appellants abont their recent. border crossing, the agents lacked probable cause at an carlier time to seck a search warrant. Given the exigent cireumstances at the time, search of the deeoy boat was proper. The decision of the district court is affirmed. ZIRPOLI, District Judge, concurring in part and dissenting in part. I find myself in agreement with the majority's position on most of the contentions made by appellants. | agree that the agents had a founded suspicion to stop the load boat,’ that they need not have given Miranda warnines any sooner than they did, and the appellants had no reasonable expectation of privacy as to the registration number on the decoy boat. 1 see no reason to specu- late on whether the agents had probable cause to search the load boat because the trial court found that Hickman had consented to the search of that boat and his finding is not clearly erroneous. See R.T, 275-76; Schneckloth v. Bustamonte, 412 U.S. 218 (1973) .2 1In reaching the conclusion that there was a founded suspicion to justify the stopping of the load boat, like the majority, I place no reliance on the information received from an informant and submitted to the trial court for in camera inspection. The in camera hearing was apparently outside the presence of counsel for defendant or the government, and was directed entirely to the question of whether the identity of the informant should be revealed to defendants. Under these circumstances it should not suddenly reappear on appeal through a sealed record to redeem what I view to be a questionable ruling on the motion to suppress. *The majority relies on a stipulation entered into by appellants and the government after the motion to suppress was denied to support its con- clusion that Hickman consented to the search of the load boat. Given the trial court’s finding of consent, referred to in the text, I see no reason to rely on the stipulation. Moreover, I doubt the wisdom of using stipulations entered into after a motion to suppress is denied as a ground for affirming the denial of the motion to suppress. Such a practice might deter defend- ants who wish to preserve their search-and-seizure issues for appeal from entering into stipulations for purposes of trial after the trial court has denied their motions te suppress. Additionally, the propriety of the ruling on the motion to suppress should, to my mind, be based on the record before the court at the time it rules on the motion; it seems improper to me to rehabilitate it on the basis of stipulations the parties enter into thereafter. al a a eS eS See ee ee 10 United States of America vs. [ must disagree with the majority’s conclusion that the agents had probable cause to search the decoy boat when they did. How- ever, since Hickman nowhere claimed (as he presumably could not) that he bad a possessory interest in the decoy boat, I con- cur in the majority’s affirmance as to him. See Brown v. United States, 411 U.S. 223, 229 (1973). Landers, however, affirmed on the witness stand that the decoy boat was his. R.T. 240-41. Since two of the four counts on which he was convicted were for pos- session, he has “automatic standing” to object to any search of the load boat that was the product of an illegal search of the decoy boat. Sce United States v. Boston, 510 F.2d 35 (9th Cir. 1974). I therefore dissent from the affirmance as to Landers.* Since the trial court did not find that the agents had probable cause to search the decoy boat,4 this court need not indulge any 3]Landers was sentenced to five years’ imprisonment on each count of the indictment, with the sentences on the possession counts and the sentences on the importation counts to run concurrently. While it may be that Landers does not have standing to object to the search of the load boat on the importation counts, compare United States v. Wing, 450 F.2d 806, 810 (9th Cir. 1971), I see no reason to reach that issue since the majority affirms as to all four counts and since the concurrent sentence doctrine does not apply in this case. See United States v. Moore, 452 F.2d 576 (9th Cir. 1971). 4Concerning the decoy boat, the district court reasoned as follows: Going back to the Landers boat [the decoy boat] and opening the boat up and looking at the configuration of the boat really is of no great consequence, because there was nothing found in that boat, and there is really no standing to object. The fact that that particular act led to the noticing of the differences in the boats, as far as this court is concerned, nobody that I have heard on the stand claimed even any ownership in the boat at the Islandia, except perhaps in kind of a backhanded manner. There was really no objection to that search, in that there was no contraband found in the boat, if it was a search. I think it would be better characterized as an inquiry to determine whether or not the boat that they had a right to search looked like the other boat that was supposed to be identical, with the same hull number. I can’t find that, while that act might have been an intrusion into the boat, that that was or would taint the diseovery, as the search had already been in progress. It would not taint the discovery of the marijuana that was subsequently found as a result of the comparison of the configurations of the interior of the two boats. R.T. 277. Clearly the distriet court did not conelude that the agents had probable cause to search the decoy boat. Compare R.T. 271. Equally clear, it seems to me, the district court’s factual determination that the Donald Eugene Hickman, et al. 11 presumption that the trial court did correetly so conclude. Instead, the majority concludes that the agents had probable cause to search the deeoy boat principally in reliance on the factors it recites to provide a founded suspicion (0 stop the load boat: (1) the discovery that appellants had two identical boats with the same registration number: (2) the tip from an informant that a boat with appellants aboard had earlier arrived in Mission Bay “under suspicious circumstances”: (3) information from an in- formant in Modesto (the in camera material) that appellants had been involved in narcotics trafficking; (4) appellants’ unusual activities in an area noted for a high number of smuggling viola- tions. In addition, the majority points to the fact that when ques- tioned after being stopped, appellants reported that they had not made a customs declaration even though they had come from Mexican waters and that Hickman said he owned the boat trailer although the agents knew it was registered to a third party, Absent the in camera material, | cannot agree that these cir- cumstances provide probable cause to search the decoy boat. While the majority concludes that these circumstances provided “a strong inference that [the decoy boat] was being used as part of a smuggling operation,” it appears to me that the agents had no more than a vague suspicion or hunch prior to their search of the decoy boat. The only really persuasive fact is that appel- lants had two boats with the same hull number, which does look suspicious in combination with the incidence of smuggling in the Mission Bay area. The informant’s tip about their earlier arrival ~—under “suspicious circumstances”—is so vague as not to add much to the suspicions engendered by the identical hull num- bers; it was merely the stimulus that prompted the agents to investigate and discover the identical hull numbers, At the time they stopped the load bout, therefore, the agents had very little beyond a founded suspicion to justify searching it. Since Hick- man consented to the search, they needed no more. agents found the marijuana “as a result of the comparison of the con- figuration of the interior of the two boats” requires us to conclude that that diseovery was tainted if the second search of the decoy boat was illegal. See United States v. Bacall, 443 F.2d 1050, 1056-57 (9th Cir.), cert. denied, 404 U.S. 1004 (1971 ). The majority therefore attempts to justify the search of the decoy boat on the theory that it was supported by probable cause. VecWabindlieested 2 an Cad jew ave Se oe Ce ee a SR eee me ce dee tt See 12 United States of America vs. The developments after the load bout was stopped hardly pro- vided further justification to search the decoy boat. The majority points out that appellants admitted that they had failed to make a customs declaration although they had been in Mexican waters. Whatever impact that admission might have on the propriety of searching the load boat, it does not, as the majority notes, have any bearing on the decoy boat. Additionally, it appeared that Hickman may have misspoken when asked who owned the trailer. But it is apparent from the record of the hearing on the motion to suppress that what the agents were interested in was the boat; his oversight in failing to explain that while he owned the boat he did not own the trailer does not provide more reason to believe he was engaged in smuggling. Instead, the events that followed the stop really operated to vitiate any probable cause that the agents may have had at the outset simply because they were unable, after an hour of searching the load boat, to find any- thing. The agents’ suspicions were not confirmed, but refuted. The majority does not confront this dilution of whatever prob- able cause the agents had when they first stopped the load boat. Instead, it suggests that “the agents needed to determine the own- ership of the decoy boat in order to determine whether Hick- man was lying in claiming ownership of the load boat and why the boats had the same registration number.” I am not aware of any doctrine that makes need, which might affeet the warrant requirement, a substitute for probable cause. Moreover, I see no reason why, after they had spent an hour searching the load boat, the agents had any such need to search the decoy boat. If they were concerned about whether Hickman really had authority to consent to a search of the load boat, it is odd that they waited so long to verify that he did, If they wanted to verify that Hick- man owned the loud boat, 1 do not see why they needed to seareh the decoy boat to do so, It is clear from the reeord that the rea- son Agent Gore returned to the decoy boat was that he expected to find there the key to the puzzle of how the contraband was secreted on the load boat, He had no immediate need to find a registration for the decoy boat. Under these circumstances, the majority's reliance on Chambers v, Maroney, 399 U.S. 42 (1970), is misplaced, because, at the ‘ime they began their seareh of the decoy boat, the agents had only their vague (and by that time refuted) suspicions that a ti Donald Eugene Hickman, et al, 13 crime had oecurred at all. In Chambers the situation was very different. A robbery had occurred, and two teen-agers reported seeing a station wagon speeding away from the scene of the crime. Within an hour, police stopped a station wagon fitting the de- seription given by the two teen-agers, arrested the occupants, and took the car into custody. Id. at 44. The issue before the Supreme Court was whether the police should have obtained a search war- rant before searching the ear even though they had probable cause to search it when they stopped it. The Court held that they did not have to do so. There was no question but that a robbery had been committed and that the police had probable cause, based on the description of the robbers they had received, to arrest peti- tioners for the robbery. Here, in contrast, at the time Agent Gore departed to search the decoy boat, he had no facts at his com- mand that indicated that any erime (save perhaps some technical violation in relation to the identical registration numbers) had been committed; Chambers cannot be used to support what was essentially a fishing expedition. PERNAU- WALSH PRINTING CO., SAN FRANCISCO 9-11-75-~-400 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_1673%3A1. Public record. Not legal advice.