*1 692 at language, see id. every contain similar
However, statutes we need not consider statutes), they have (citing of that n. 5 possible application the statute 1222 challenges, protected vagueness might withstood impermissibly repeatedly inhibit pre-en- States, speech. presented with 312 U.S. see, We are v. United e.g., Gorin challenge 429, 433-434, to this advertis- 27-28, forcement facial L.Ed. 19, 61 85 S.Ct. statute ing Featherston, ban. overbreadth of a (1941); v. States “[T]he 488 real, as only must not be but substantial 1119, (5th Cir.), 1121-22 cert. de well, judged in relation to the statute’s nied, S.Ct. L.Ed.2d 93 34 legitimate sweep” justify invali- plainly to 258 its Broadrick dating the on face. statute of Given the construction the statute S.Ct. Oklahoma, 413 U.S. 93 v. specific referring proposals drug par- to of (1973). We L.Ed.2d sales, requirement aphernalia the that the Washington’s paraphernalia conclude that placed “knowing, or circum- ad be under unlikely advertising to reach a sub- is ban reasonably know stances where one should constitutionally protect- of stantial amount unduly purpose” vague. not is See its] [of speech. ed Hollywood, F.2d at 1219. III. VAGUENESS judgment is reversed.
Rocket contends that the advertis unconstitutionally vague and will
ing ban is
chill the of First Amendment exercise Rockford,
rights. Grayned City v. of 104, 108-09, 2298- S.Ct. chal Rocket America, of UNITED STATES imposition liability if lenges the of statute’s Plaintiff-Appellee, ad “reasonably one should know” that the part” purpose whole “or v. vertisement’s promote paraphernalia sales. is HILLISON, Irving John Defendant-Appellant. phrase “purpose, have the We discussed part, promote is in whole or in ... America, of UNITED STATES II.A. sale” in Section We concluded Plaintiff-Appellee, only to statute refers direct invitations buy specific paraphernalia. Three other Murray JACOBSON, F.2d agreed. Hollywood, 673 circuits have David Weiler, 1217; Casbah, 563; Defendant-Appellant. F.2d at at Nashua, 679 But see at 1350. America, of UNITED STATES clearly re- 4. F.2d at Because statute Plaintiff-Appellee, only proposals parapher- specific fers of sales, language ... “purpose nalia speech.
part” will other not chill forms MANSFIELD, Jeffrey Ketchum vague. impermissibly It is not Defendant-Appellant. In Stoianoff, this court discussed 82-1525, Nos. 82-1535 82-1536. vagueness “reasonably should Appeals, United States Court to conduct language, know” with reference Ninth Circuit. constitutionally protected. that was not April Argued and 1983. Because Submitted Stoianoff, F.2d at 1220-22. commercial constitutionally protected May Decided is issue, here speech is the standard Rehearing As Amended on Denial rigorous. more 11, 1984. Oct. Nonetheless, find the “reason- we not uncon- ably language is should know” myriad federal A vague.
stitutionally
GOODWIN, Judge. Circuit Hillison, Jef- Murray John Jacobson and frey convicted of con- Mansfield were each possess spiracy to cocaine with intent § 846, distribute, of U.S.C. violation *3 possession and of cocaine with intent § 841, distribute, in violation of U.S.C. and April based on evidence obtained on appeals Each on the appellant ground that the evidence used to convict him was in violation of the Fourth obtained additionally con- Amendment. Jacobson was insufficient to tends that evidence support his conviction. We affirm the con- victions of all three defendants. I
FACTS April p.m., On at about 2:30 drug agent ap- Gary federal Kircher saw pellants Hillison and Jacobson arrive at San Airport flight Diego International on a Denver, from Colorado. Jacobson can- carrying rectangular a briefcase and a bag; backpack. vas Hillison carried proceeded directly to a rental two men car counter where Jacobson rented a car. pair decided merited fur- Kircher they ther frequently surveillance because they glanced appeared about and because people standing unduly concerned about nearby.
After Hillison and
boarded the
Jacobson
shuttlebus,
car
Kircher
rental
examined
agreement and found
the car
rental
in the
Murray
was rented
name of
Jacob-
argued,
Swan,
Atty.,
Asst. U.S.
Patrick
as
pair
son. He ordered surveillance
Swan,
Nunez,
Atty., Patrick
Peter K.
airport
in the
left
rented car.
brief,
Diego,
San
Atty., on the
Asst. U.S.
surveilling agent
watched
Cal.,
plaintiff-appellee.
for
store,
stopped
supply
office
Jacobson
at an
Sheila, III,
Cal.,
Diego,
Barton C.
San
emerged
entered. He
which Jacobson
Newsom,
Francisco, Cal.,
J.
Brennan
San
goods.
carrying paper
The two men then
Brooks,
Cal.,
Diego,
Juanita
San
for de-
Inn,
to the Pacific Shores
where
drove
fendants-appellants.
p.m.
checked in at about 3:30
day,
The next
at about 10:00 a.m.
the Pacific Beach
followed
Office,
package
left a
to be
Post
where he
“priority
via
mail”
an Illinois
delivered
immediately re-
GOODWIN, TANG,
Agent
address.
Kircher
Before
FLETCHER,
quested
segregate
the Post
this
Judges.
Office
Circuit
package
ing
period,
drug agent
inspect-
from the normal flow of mail.
another
morning,
Later in the
Flillisonand Jacobson
ed Mansfield's vacated room at the La Jolla
checked out of the Pacific Shores Inn. Af- motel, finding marijuana seeds and debris.
departure, drug agents inspected
executed,
ter their
When the search was
the trunk
room,
the vacated motel
where
found
of Mansfield's
car was found to contain
wrapping paper
paper
grams
marijuana
grams
brown
and a brown
258.1
and 338.2
bag
marijuana
of cocaine.
that contained
seeds. The
investigating agents then summoned a nar-
appellants
sup-
Each of the
moved to
dog
cotics detector
to sniff the
press
against them, claiming
the evidence
dog
Jacobson had mailed. The
alerted
that it had been obtained in violation of the
strongly
package.
on the
Based on this Fourth Amendment. Each motion was de-
information,
obtained a warrant
appellant
nied. Each
was afterwards tried
*4
package
p.m.
and searched the
at 5:00
stipulated facts,
to the court on
and each
They
70,1 grams
discovered
of cocaine in- was convicted.
side.
Meanwhile,
drug agents
II
other
shadowed
Jacobson,
Hillison and
another motel called the Inn at La Jolla.
who checked into
DISCUSSION
motel,
agents
Challenge by
At this
appellant Mansfield, driving gold
the
first observed A. Fourth Amendment
Hillison and Jacobson.
a
Concord
automobile with Hillison and Jacobson as
procedure
investigate,
The
used to
ar
passengers. A check on the car revealed
rest,
appellants
and search
Hillison and
Vegas,
that it had been rented in Las
da, by
Neva-
Jacobson violated no Fourth Amendment
giving
"Jerry
a man
the name
Thur-
rights~
phase
investigation
The initial
ston,"
the
discovered that Mansfield
triggered by nothing
more than the
Jeffrey
had rented room 42 under the name
Mansfield. Hillison and Jacobson had rent-
subjective
by drug agents
assessment
suspiciously
Hillison and Jacobson behaved
ed room 44. Hillison was later observed
Diego Airport.
in the San
agents'
While the
driving
liquor
Mansfield on an errand to a
might
observations
under some cir
spent
store. The three men
the afternoon
justify
stop
ques
cumstances
a brief
for
together between the two rooms. At 7:00 tioning,
Post,
see United States v.
607 F.2d
p.m.,
carrying
Mansfield left
a briefcase
847,
(9th Cir.1979);
850 & n. 3
paper
Surveilling agents
and a
sack.
fol-
Chatman,
565, (9th
Cir.
lowed him to the residence of an unidenti- 1977), they certainly
give probable
did not
fied woman.
suspect
activity,
cause to
see Flor
morning,
Royer,
491,
1319,
The next
Mansfield returned to
ida v.
103 S.Ct.
(1983).
motel,
again
1323 n.
The sub
the La Jolla
where he
met
sequent
Hillison and Jacobson. Hillison and Jacob-
observations that Hillison and Ja
shortly
purchased supplies,
son left the motel
afterwards and
cobson
checked into a
Diego Airport,
motel,
package
drove back to the San
they
where
and later mailed a
did not
any
incriminating
were arrested and searched. Pack-
add
new
information to
ages containing
grams
agents' knowledge.
probable
over 100
of cocaine
the
If
cause
required
segregation
were found in each of Hillison's socks. were
for the
of Jacob
package,
segregation
son's mailed
the
and
At about 11:00 a.m. Mansfield left the
package
detention of the
would not have
stopped
motel. He
rant,
at a fast-food restau-
by
been authorized
law.
by drug
where he was arrested
agents.
give permis-
Supreme
held, however,
Mansfield refused to
Court has
probable
sup
sion to search his car. The
held that
cause is not needed to
port
segregation
delay
Mansfield and the car in the restaurant
a brief
and
of a
parking
hours,
package.
løt for five
while
wait- mailed
United States v. Van
Leeuwen,
ed for issuance of a search warrant. Dur-
period
package prior
the
detention
the
While “theo
25 L.Ed.2d
hours,
the search was nine
far less than
to
of mail
unduly long detention
retically” an
Leeu-
in
hours held reasonable Van
enough
unreasonable
become
could
Leeuwen,
on
con-
by wen. Based
Van
we
protected
privacy interests
upon
trude
segregation
clude that the
and detention
Amendment,
at
id.
the Fourth
by
package
did not
mailed
inter
Fourth Amendment
at
the main
the Fourth Amendment.
violate
to the
package attaches
mailed
est in a
contents,
speed
with
its
not
privacy of
investigation
that uncovered
delivered,
90 S.Ct. at
it is
id.
which
probable
amounting
facts
cause
reason,
the Court ruled
For this
in a
package was also conducted
search the
by
Amend
protected
the Fourth
no interest
agents did
dis
lawful manner. The
not
forwarding
package
by
is invaded
ment
turb, test, inspect,
dog
or allow the trained
day
than the
it
following day rather
on the
package
after
segregated
sniff the
until
Id.;
States
see also United
deposited.1
is
room vacated
had searched
motel
(9th
Martell,
1367-68
There
dis
Jacobson.2
(Nelson, J., dissenting)
de
Cir.1981)
cert.
paper,
scraps
wrapping
brown
covered
—
-,
nied
debris,
marijuana
marijuana
ten
seeds
recently
The Court
mailed
suggested
items that
Leeuwen,
holding of Van
adhered to the
might
marijuana.
by Jacobson
contain
one in which
characterizing
case as
gave prob
not
information
Whether or
*5
unable
show that
“the
was
defendant
package, it
to search the
certain
able cause
privacy
either a
upon
the invasion intruded
any,
ly provided
suspicion,
the founded
if
packages
the
of the
or
in
contents
interest
dog sniff.
Florida
justify
needed to
a
See
in
them
possessory
packages
the
a
interest
(plurality
n. 10
Royer,
B. Fourth persons engaging on association with based Mansfield activity, some additional circum in criminal Although investigating to infer from which it is reasonable stances and Jacobson that Hillison properly learned enterprise in must be participation drug-related activi engaged illegal in were Vilhotti, 323 shown. United States v. morning on the of Mansfield ty, the arrest (S.D.N.Y.1971). im F.Supp. One lawful unless the April was not sig portant assessing consideration that Mans cause to believe probable had nificance of the association is whether the activity. engaged such field was also contemporane activity known criminal cause to Arresting probable have officers LaFave, 1 W. ous with association. if, moment arrests at the make warrantless § 3.6, 659-61; see Search & Seizure arrest, within facts and circumstances Williams, United States knowledge have their and of which (9th Cir.1980), cert. denied are reasonably trustworthy information 865, 101 S.Ct. prudent man to warrant sufficient of the crimi Another is whether the nature person had com believing that the arrested it not normal activity nal is such that could committing an offense. mitted or was knowledge of ly be carried on without the Martin, F.2d 1211 States LaFave, persons present. W. Search all Cir.1975), denied, (9th cert. § 658-61; Williams, 3.6, at see & Seizure *6 (1975). 1958, 44 455 95 S.Ct. L.Ed.2d have concluded F.2d at 1325. We 630 probable agents had cause had above that the agents the time of arrest The that Hillison and Jacobson were (1) driving Hillison to believe observed: Mansfield during their car, (2) activity engaged criminal in his passengers and Jacobson Furthermore, Mansfield. visiting association with Mansfield, Hillison and Jacobson that Mansfield credulity to assert adjacent it taxes and forth between their back and Jacob 8; in Hillison’s (3) spent as much time April the afternoon of rooms on period during the company as he did liquor son’s driving car to a Hillison Mansfield’s knowing about their without store; (4) returning the next of surveilance Mansfield and recognize that activity. We drug dealing and meeting Hillison Ja morning and with criminals with known agents propinquity The mere departure. cobson before their more, not, give proba rise to knew, they arrested Mans does without by the time also Illinois, 444 U.S. v. field, and Jacobson were ble cause. Ybarra that Hillison 338, 341, 342, 89, 91, 62 L.Ed.2d agents had some informa The “dealers.” case, However, (1979). present in the car had been leased 238 that Mansfield’s tion Thurston”, relationship Mans between “Jerry while his the continued name of cannot be Hillison and Jacobson rented in the name field and motel room had been Rather propinquity.” “mere possible fairly use of the termed The Jeffrey Mansfield. demonstrated experienced observations suggest to the officers’ names would two the three sus something between had close association officers that the user police close days. prolonged This pects with over two close association to hide. Mansfield’s suspicion that founded at least and the well suggested contact Hillison and Jacobson engaged in nar were knew what and Jacobson very probably that Mansfield their so, time of during the If Mans cotics violations pursuing. were business gave the of- In with Mansfield something to hide. association field indeed had 698 of this infer that Mansfield the basis was lot. On parking reason ald’s
ficers Shortly information, they two. him for five hours the other after held working with Mansfield, the officers knew the trunk awaiting a warrant to search stopping debris were found in marijuana seeds and car. his Also, motel room. Mansfield’s abandoned must, majority acknowledges, The as it only initially stated that he had Mansfield person’s propinquity that “a mere to others Diego. his visit to San girlfriend on met his independently suspected of activi- criminal pro more than mere constitute
These facts
not,
more,
ty
give rise to
does
without
Atkinson,
pinquity.
See
Illinois,
probable cause.”
444
Ybarra
(5th Cir.1971),
cert. de
85, 91,
338, 342,
L.Ed.2d
S.Ct.
nied,
(1979);
see also United States v. Di
hold that the of
We
Re,
581, 593,
222, 228,
cause to arrest Mans
probable
ficers had
(1948). In
L.Ed. 210
United States Vau-
field.
(9th Cir.1983),
only
ghan,
edge of and Ja- by Hillison illegal crimes committed which our court held arrest of conspiracy possession cobson were suspected drug Beck and others activity. to their A visitor possess narcotics. observed, stop We “that the and detention these would not know hotel room way airport the individuals on the to the [of in- being unless crimes were committed days gave after four surveillance that rise And, by occupants. one of the formed suspicions pretext but no awas or more] knew, involved in if he he need not be even subterfuge to enable the officers to con- the crime. ____ stop duct a warrantless search The exigent have identified ... did not occur under the usual Other factors courts sufficient, simply to association it when added circumstances ... the last criminals, provide probable cause to Id. with the officers had.” at 502. chance present are not here. The arrest or search I hold that five would Mansfield’s hour not know the content of conver agents did following investigatory stop detention an others, among Mansfield and the sations requiring suppres- was an unlawful arrest among nothing pass them. saw sion of the evidence seized in the subse- York, 392 U.S. 40, 62, v. New See Sibron quent search of the automobile. 1889, 1902, (1968). L.Ed.2d 917 Mansfield’s conviction should be re- previously had not observed versed. Hillison, drug transactions between Jacob and others at the motel. See Ker v. son
California, At no time plain
was Mansfield observed to be within United States v.
view of contraband.
Vilhotti, (S.D.N.Y. F.Supp.
1971). of this Under the circumstances
case, say that Mansfield was we cannot “inextricably enmeshed” with the others in PRICE, Plaintiff-Appellant, Thomas E. venture. See United States drug-related
a Baker, Cir.), cert. (9th HECKLER, Secretary Margaret M. denied, Services, Health & Human L.Ed.2d 109 Defendant-Appellee. majority opinion is at odds with Chamberlin, No. 82-5870. (9th Cir.1979), invalidated a where we Appeals, United States Court of the defendant 20 minute detention of Ninth Circuit. police officer who had more cause to sus- pect the defendant than did the officers in Argued and Submitted March 1984. Chamberlin, case. In an officer ob- May Decided two individuals with known criminal served night area of records late at in a bad San *8 pace
Diego. They quickened their when he returned
the officer drove and when caught and held
they fled. The officer one searching
him for the other. We while more, Terry stop justified no
held a but York,
relying Dunaway v. New on (1979), Vaughan, the Ybarra court.
did conduct here is
F.2d at 335. The officers’ like that of the officers
much