Brief for the United States in Opposition — Witt v. United States (No. 942)

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FEAR Re ae

No. 942

ju the Suprenw Court of thy United States -

‘CcTOBER TERM, 1960

RuTH ETA WITT, PETITIONER

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UNITED STATES OF “AMERICA”

PETITION FOR A WRIT OF CERTIONARL Ta THE

NITE? STATES COURT OF Al As Fok THE

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INDEX

Opinion below | 1

Jurisdiction . 1

Questions presented 2

Statutes involved »

Statement ; 3

Argument D

Conclusion. 7

CITATIONS

Cases:

Blackford Vv. United States, 217 Fo 2d Th. certio

‘avi denied, 326 US. 914 . 6

Bradford Vv. United Stetes. 271 F. 2d Se 7

Carrall Vv. United States, 267 U.S. 132 »

Casey V. United States, 276 US. 112 7

_ Cervantes ¥. United States. 2623 F- 247 S00 6

Copp rthiuenite Vo Und State $s. 372 F. 2a 846 = > 7

Dear Check Quong Vi United States. 160 F. 2d

* 251 a ; 7

Harris v. United Stares, 359 US. 19 6

Landau Vv. United States Attorney. for Southern

District of New York, 82 F. 2d 285, certiorari

denied, 298 U.S. 665 5

Stein Vv. United States, 166 F2 2d S51, certiorari

° denied, 334 U.S. S44 oes

United States Vv. Moc Liss, 105 F. 2d 144 7

United States Vv. Valdes, 229 F.2d 145. certiorari

denied, 350 U.S, 996 6-7

Uraited States vi Yeu Ngee How. 105 F Supp.

a17 D

-Yee Hem v. United States, 268°U.S 17% 7

Statutes:

’ .

19 U.S.C. 182; .14 Stat. 178 gan ee

19 U.S.C. 1582, 46 Stat. TIX © 2

21.U.S.C. 174. 70 Stat. 570 3.6

Inthe Supreme Court of the United States

OCTOBER TERM, 1966

No. 942

RutH Etta WITT, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORAR] TO THE

UNITED STATES COURT CF APPEALS FOR THE

NINTH CIRCUIT

‘s

BRIEF FOR THE UNITED STATES IN OPPOSITION

“ge OPINION BELOW .

> Tie a

_ The opinion of the court of appeals (III R. 3-7;

Pet. App. “A”, pp, 1-7).-is. reported at 287 F.2d 389.

sr - JURISDICTION

. The judgment of the court of appeals was entered

on February 16, 1961 (III R. 8). A_ petition for

“R.” reféra to the three volames of the transcript of rec-

ord in the courts below on file in this Court, and will be

designated by the appropriate volume number,

(1)

?

rehearing was denied on April 5, 1961 (Il Rh. 9)

The petition for a writ of certiorar! was tiled on May

3.1961. The jurisdiction of this Court is ‘nvoked

under 98 U.S.C, 1254(1).

QUESTIONS PRESENTED

1. Whether petitioner, upon entry into the United

States, was lawfully searched by a customs inspec:

tress, and whether narcotics found ‘on her person wer

lawfully seized.

2 Whether 21 U.S.C. 174 is constitutional in per-

mitting a presumption arising from possession,

STATUTES INVOLVED

19 U.S.C. 482, 14 Stat. 178, provides in pertinent

part: i

Any of the officers or persons authorized to

board or. search vessels may stop, search, and

examine, as well without as within their respec

‘tive districts, any vehicle, beast, or person, on

which or whom he or they shall suspect there 's

merchandise which is subject to duty, or ings

have been introduced into the United States

any mauner contrary to law * * *; and if

such officer or other perseia so authorized shat

find any merchandise on or about any suc! th ve-

hicle, beast, or person, or intany such trunk or

envelope, which he shall have reasonable cause

to believe is subject to duty, or to have be:

unlawfully introdueed into the United States.

* * « he shall seize and secure the same for trial.

19 U.S.C, 1582, 46 Stat. T7418, provides:

The Seerctary of the Treasury may preser ihe

reculations for the search of persons and bag-

gage and he is authorized to employ female in-

spectors for the examination and seare h of per-

cons of their own sex; and all persons coming

into the United States from foreign countries

shall be liable to detention an@ search by author-

‘ized officers or agents of the, Government under

such regulations.

21 U.S.C. 174, 70 Stat. S570, provides in pertinent

part: ;

Whoever fraudulently or knowingly imports

or brings any narcotic drug into the United

States * * * contrary to law, or receives, Con-

ceals, buys, sells, or in any manner facilitates

the’ tr: insport: ition, concealment, or sale of any

such nareotic drug after wiry imported or

brought in, knowing the same to have been im- -

ported or brought into. the United States con-

trary to law * * * shall be imprisoned not less

thar five or more than’twenty vears * * *.

Whenever on trial for a violation of this see-

tion the defendant is shown to have or to have

had possession of the narcotic drug. such posses-

sion shall be deemed sufficient evidence to au-

thorize conviction unless the defendant explains

the possession to the satisfaction ofthe Jury.

* + * *

STATEMENT

Petitioner was convicted (IT R. Prs- rsa. in the

Distriet Court fer the Southern Distriet of California

on one: count of an ingictimé nt charging willfal trans-

4 .

‘portation of narcotics into the United States, in viola- +

tion of 21 U.S.C. 174 (1 R. 2; see IT R. 164). She was

sentenced to five years’ imprisonment (If R. 197; see

o R. 27-30). On appeal, the conviction was unani- --

mously affirmed (III R- 7, 8;’Pet. App.."A™: p. 7.

The principal issue raised is the validity of the search

' of petitioner’s person ‘from which the narcotics were

seized.

‘At a pre-trial motion to suppress, it was shown

that, on December 26, 1959, Customs Inspector [u-

dolph Dale was told to be on the lookout for a green

and white 1957 Mercury -hardtop automobile, with

California license plates number MNJ-592, wide

would contain one or two colored-women, At alam

9:15 p.m. that same day, Inspector Dale stopped 5

a vehicle at the Customs House at San Ysidro, Ca.-

fornia, as it entered the United States from Mex.

(II R. 35-37, 41-42). A man was driving; petitioner

Was seated next to him in the front seat. When the

petitioner and the driver indicated that they did ns

have any merchandise. to declare, Inspector Date vn-

tered the car and drove it over to a customs atci

where it was subsequently searched (II R. 87-40).

A customs inspectress brought the petitioner into

a private search room and told the petitioner tha’

she would have to remove her clothing in order to

a “personal search” cowld be made (11 R. 44). Th:

inspectress said that, if the petitioner did not remove

“er clothing, “measures” weuld be taken to have «

removed (II R. 46). ‘Petitioner then removed si. ot

her clothing. The inspectress found a package «

hervin inside of the petitioner’s brassiere (IT R. b.

~

fay €

- 49-50).2 The inspectress also m: ide a search of peti-

tioner’s person. ‘After the petitioner was. dressed, she

was questioned by customs officers regarding the

package of nareoties. She said that she had pur-

chased the “narcotics” in Tiajuana with honey sUps

plied to her from a man in Los Angeles named * Bo”

to whom she was supposed to deliver the “narcotics”

and that she was to reccive $100 for her services (LI

R. 81-82, 90-91, 92)... These admissions were denicd

by the petitioner at the trial (ID R. 118, 125-126,

134).

ARGUMENT

1. Petitioner contends (Pet. 8-S)>-+h2) that the

search and seizure were unlawful because the customs”

officers lacked probable cause to believe that the pe tit

tioner was carrying contraband, The short answet,

however, is that 19 U.S.C. 482,. supra, p. 2 -author-,

izes customs officials to search any person entering

the United States “on * * * whom * * * they shall.

suspect there is merchandise which “ * * shall have

heen introduced into the United States in.any manner

contrary to law” (emphasis added). This) statute

has been construed to authorize custolis searches "of

the’ broadest vossible character” at the borders of

the United States. Landau v, United States Afforney

for Southern District of New York, S2-F. 2d 255,

286 (C.A, 2), cortiorarl denied, 208 U Ds 665; United

Stoufes vo Yoo Naee How, 1Q5 BF. Supp. 514, az0 (N.D.

Cal.j: see Carrodl v. U woted States, 267 U.S. 152, 14.

At the trial dhe custems iispectcess testified that. the

me toemer Wiis net “anxious . to reimove hey clo

ence she had lone se, =} Ns “COOpe rative ( tt fh. ahd.

” 4

6

Cervantes v. United States, 263 F. 2d 800, 803, fn. 5 -.

(C. A. 9); Blackford v. United States, 247 F. 2d 745,

(49-753. (CLA, 9), certiorari denied, 356 U.S, 914.

‘In the present ease, the Customs Agency Sard ice

had received. information, that the petitioner’s car

would be used in introducing narcotics into the United ‘

States from Mexico, and that two colored women

would probably be the occupants of the car. This in-

formation, together with a detailed description of the

ear, including its license tag numbers, was trans-

mitted in the, form of a “lookout bulletin” to the

Customs House at ‘San Ysidro,. California, with in-

‘structions to stop (and search) such a vehicle (IP I.

36-37, 54-55). With this information, the customs

officials, at the very least, had “suspicion” thatesomé

type of, merchandise either, subject to duty or illegal,

such as narcotics, would be introduced inte the United

States by the occupants of the petitioner’s car, . The

haltiug of the vehicle and the search ef the petition

were author ized, therefore, under 19 U.S.C. 482.

Petitioner attacks the validity of the “sbi il

tion arising from “possession” under 21 U.S.C. 174

supra, p. 3, on the ground that it eliminates the pre-

sumption of innocence and necessity of proof beyond a

reasonable doubt. The fact of possession is, however, ~ ,

an issue to be proved beyond a reasonable doubt sub-.

ject to the presumption of innocence. See Harris v.

' United States, 359 US. 19, 23; United States v.

Valdes, 229 F, 2d 145, 147 (CLA. 2), certiorari denied. |

350 U.S, 996. The fact that'the ‘jury is authorized to

convict a defendant unless he explains Ris possession ”

of the narcotics to the satisfaetion ‘of thé jury is not

.

unreasonable, for it is “consistent with all the consti-

‘tutional protections of accused men to throw on them

the burden of proving facts peculiarly within their

knowledge and hidden from discovery by the Govern-

ment.” Cascy v. United States, 276 U.S. 418, 418zsce

Yee Hem vy. United States, 268 U.S. 178, 183-185.

CONCLUSION

For the foregoing reusons,.we respectfully subm't

that the petition for a writ of certiorari should. be >

4

denied,

ARCUIBALD Cox,

Solicitor (se rheogedte,

HERBERT J. MILLER, JR

lssivtdnt Afforeey General.

May 1961.

Of St. tees

* forms 6)

“The constitulionahiv of the proyisions

here under attack has been sustained ageitt

challenge. See, e.g. Bradford VP anited Ste bla Oe ee a a

- 60-65 0CC AL Os Dea Check’ Quong Vv. United NAaties, 160 F,

2d 251, 242-253 (CLAIDIC) : Unried States vielen Liss, 105

F. DLA 11, 116 (CLA, 2) 3 Copperth toni’ v. United States, 33

F. 2d 816, SI8-S192(C:A. 6): Sheu v ted States, 166.F.

*. ™ . .

2a oe RD (CLA. OV: certio Meh denied,

S$ GOVESRMENT FSA'S

.