Petition for Writ of Certiorari — Hocker v. Heffley

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UNITED STATES

Octoser TERM, 1969

3 No. AAS...

CaRL Hocker, ‘WARDEN, NEVADA STATE PRISON,

. Petitioner, :

vs.

JaMES A. HEFFLey, Respondent.

MOTION FOR LEAVE TO FILE PETITION

“FOR WRIT OF CERTIORARI

and ~.

PETITION FOR A WRIT OF CERTIORARI TO THE _

UNITED STATES COURT OF APPEALS -

FOR THE NINTH CIRCUIT

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IN THE

SUPREME COURT

OF THE 5

UNITED) STATES :

OCTOBER TERM, 1969

Caan HockER, WARDEN, NEVADA orars PRISON,

Petitioner,

vs.

JAMES A. HEFFLEY, Respondent.

MOTION FOR LEAVE TO FILE PETITION

FOR WRIT OF CERTIORARI

COMES. NOW petitioner above named, and respectfully

moves this Court for leave to file the annexed petition for certiorari :

under the provisions of section 1651 of Title 28 USCA, directed ©

to the United States Circuit Court of Appeals for the Ninth

Circuit, to review a decision of said Circuit/ Court reversing a

judgment of the United States District Court for the District of

Nevada denying a petition for a writ of habeas corpus filed by

__ and on behalf of respondent, above named, which judgment was

duly given and made on the 12th day of February, 1968.

The decision of said Circuit, Court of Appeals was duly given

and.made on December 9th, 1969. A copy of said decision

of said Circuit Court of Appeals, is more particularly described

_ in the petition for certiorari filed herewithand a copy thereof is

attached to said petition as Appendix “A”. |

WHEREFORE, petitioner prays for an order granting the

right to file said petition for certiorari, and for such other and

further relief.as to the Court may be just and proper.

DATED this 30th day of January, 1970.

e | Harvey DICKERSON,

Attorney General of Nevada

A torriey for Petitioner

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SUPREME COURT

- OF THE -

“UNITED STATES |

OcTOBER TERM; 1969

CARL Hocxes. WARDEN, NEVADA STATE PRISON,

Petitioner,

vs.

James A. HEFFLEY, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE ©

UNITED STATES COURT OF APPEALS :

FOR THE NINTH CIRCUIT

HARVEY DICKERSON *

Attorney General of Nevada

Supreme Court Building

Carson City, Nevada 89701

Attorney for Petitioner

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TABLE OF CONTENTS :

‘ : AG ; ‘ PaGB

Citations to Orders Sought to Be Reviewed......2..............2....000-000-- 8

- Jurisdiction.......... ELEN TRIAS NIEE Sedatasaitacstansh SERN eee

" «Questions Presemted.............-...--<.acacoccLeccscscoceseloesceceeseacecsesceesnenees 8

Statement of the Case........ sicstashahesiiinyancl ieiiniieadipeltaaaeanigo sian Cane re 9

Reasons for Granting Writ.............. iieanas ct ascncobiatntcsebbgs eed uations: 10 ©

Conflicting Court Decisions...........................-. (aceite eeeS °16

Conclusion...................... danish ildiad psnkinsjelsascaleatimialaiadaieanaabadee 20

Appendix “A”

Decision of the United States Court of Appeals for the Ninth

RUN Ue tistissepini Gaciese disdehesk ca Gepsibne Aas i ahead adios haideetanipsien vataalaliaaabisindgis 23

TABLE OF CASES AND AUTHORITIES CITED

CASES ‘

; PAGE

Arwine vs. Bannan, 346 F.2d 458............. “DER TORS OE 19

Cooper ¥s. California, 386 U.S. 58.000000.0..2...cccccscceeseeeeeeees 14, 19, 20

_ + Frakes vs. United States, 294 F.2d 859............0.0cccsceseoscececssersesceese 19

Harris vs. United States, 390 U.S. 234000000000. cccececneenenenenee 11, 13, 21

Hefficy vs. State, 83 Nev. 100, 423 P.2d 666.000.0000... Siete 9

Johnson vs. State, 238 Md. 528; 209 A.2d 7650000000. eccecceeencenees 19 -

Knotts vs. State, 237 Md. 417; 207 A.2d 100.0000... cocccecsesseenes 19

Miller vs, United States, 356 F.2d 63.....0000.0000.0.0000. hinsselenieanicts 21

People vs. Durgas, 51 Cal.Rptr. 178 .0....00.00ccccccccccseesserseesseeneenees 19

. People vs. Moschcta, 25 App.Div.24 686, 269 N.Y.S.2d 70........... 19

People vs. Talbot, 51 Cal.Rptr. 417......... snalcdealdelehasutintinnlansestesahs 19

Preston vs. United States, 376 U.S. a. ccosscoseseoh dy 14, 35, 16

Trotter vs. Stephens, 241 F.Supp, 33..2..0000000000000000..... Sh ctcobillagatages 19

United States vs. -Dento, 382 F.2d B60 eo toot ecco cceceeeesnnenvnene «17

United States vs, Evans, 385 F.2d 8240000000000. occ cecceeseeee 16

United States ex rel. eyo amemlia Wallack, ee

255 F.Supp. 566, 569... MO ae we

IN THE ©

SUPREME COURT

UNITED STATES -

_ Octoser TerM, 1969.

CARL Hocker, WARDEN, NEVADA STATE PRISON,

Petitioner,

: vs.

James A. Herriey, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Carl Hocker, Warden, Nevada State Prison; petitioner herein,

prays that a writ of certiorari issue to review a decison of said

Circuit Court, which decision reversed a judgment and order

duly given and made by the United States District Court for the

District of Nevada on the 12th day of February, 1968, denying

a petition for habeas corpus filed by and on behalf of respondent

abovenamed. aan

The decision of said Circuit Court of Appeals was dated the

Oth day of December, 1969; but, said decision was not received

by your petitioner until December 19th, 1969, and your petitioner

did not learn of said decision until <u.2 19th day of December,

1969. '

CITATION OF DECISION SOUGHT TO BE REVIEWED

The decision of the Ninth Circuit Court of Appeals which is -

sought to be reviewed is, as yet, unreported, but is numbered

22,661 therein, and is dated, as aforesaid, December 9, 1969; a

copy of said decision is printed in — _ hereto, infra,

7 page 23.

| a sei s |

The jurisdiction of this Court is invoked under Section 1651

of Title 28 USCA and Section 1254(1) of Title 28 USCA.

QUESTIONS PRESENTED

1. Whether the search of respondent’s automobile by tuc

police at the police station was unreasonable and illegal after the

arrest of respondent in heavy traffic on a three-lane one-way

street where a number of cars were backed up behind the scene

of arrest and were forced around respondent's car and police

vehicle in order to resume travel;

2. Whether the arrest and subsequent search by the police of

respondent's automobile at the police station without an arrest or

search warrant was illegal and unreasonable after police, upon _

stopping respondent’s car on a heavily-traveled public street,

observed through the car windows in bulk and lying in plain view

in the rear portion of the car the following items: .

“Six shotguns, two rifles, two- pistols, four cameras, field

glasses, a timing light and various papers. Most of the articles

seized were in plain view in the rear portion of the sedan, and

the evidentiary items (hereafter described ‘and discussed

under Statement of the Case) essential to the Nevada prose-

cution were there found, although they may-have been cov-

ered or obscured by the guns and other paraphernalia.”

Quotation taken from dissenting opinion in said Circuit Conk

of Appeals for the Ninth Circuit decision, page 10 thereof; and

from the “record” at 137 cited by the dissenting justice.

STATEMENT OF THE CASE

As taken from the Nevada Supreme Court’s opinion in Heffley

vs. State, Case No. 5115, 83 Nev. 100, 423 P.2d 666 (1967),

the basic facts of this case, pertaining to the search and seizure, —

are as follows:

“On October 25, 1965, the residence of Eccles and Chester

was burglarized in Washoe County. Among the items stolen

were Eccles’ passport, Chester’s passport, a trailer registra-

tion, and a truck title. No identity of the culprit was estab-

lished at that time.

““Heffley was arrested in his automobile in Sacramento, Cali-

fornia, on November 13, 1965, while he was waiting for a

stop light. Officer Santich, the arresting officer, had received

a radio report that a person driving a car answering the

description of that of Heffley was attempting to sell guns to

pawnshops and he was ordered to investigate. Santich

approached Heffley at the stop light and while interrogating

him saw the butt of a pistol under the driver's seat. He also

observed several shotguns, rifles, and pistols piled on the rear

- seat. He ordered Heffley out of the car, arfested him for pos-

session of the pistol, took the pistol from the car, and then

had Heffley taken to jail in another police car which had

been summoned by Santich. Santich drove Heffley’s car to

- the same police station three blocks away.

“A complete search of the entire automobile was immedi-

‘ately made at the station by officer Santich. He looked

into the trunk and under the hood, although no unusual arti-

cles were found in those places. On the floor by the rear seat

| he found the two passports and the two certificates of regis-

tration along with, of course, the arsenal of guns. He made

a list of the items he found in the automobile.”

REASONS FOR GRANTING WRIT .

One very persuasive reason for the granting of the writ in this

case is that the Sacramento, California police were actually

searching for the respondent, having been alerted by a radio

report that a person driving a car answering the description of that

of Heffley was attempting to sell guns to pawnshops, and the

arresting officer, Santich, was ordered to investigate.

Santich observed the described car stopped at a stop light. The

officer approached Heffley at the stop light and while questioning

him saw the butt of a pistol protruding from under. the driver's

seat and a veritable arsenal of shotguns, rifles and pistols lying on

the rear seat of Heffley’s car.

- Heffley was ordered from the car, and arrested for possession

of the pistol. The officer took the pistol and “within three minutes”

had Heffley taken to jail in apother police car which he had

_ summoned. Officer Santich then drove Heffley’s car to the same

police station three blocks away, and listed the car’s contents on

an inventory prior to having the car stored in a: public garage.

In addition to the arsenal of guns, already mentioned, the

officer found two passports and two certificates of motor vehicle

registration, all of which was listed on an inventory. All of these

documents had been stolen during a burglary of a Washoe

County, Nevada residence for which Heffley was subsequently

convicted.

The Circuit Court of fogs for the Ninth Circuit in its

opinion (No. 22,661, titled _— A. Heffley v: vs. Carl Hocker,

W arden) page 4, said:

“In our case the officer saw, from a point outside the car,

weapons on the back seat of the car. The removal of the

guns would probably have revealed the documents in ques-

tion without the need of a further search or possibly, as the

district court thought likely, the documents might themselves

have been visible from the outside.”” (Emphasis added.)

Then the court. stated, with which statement we respectfully

disagree: ,

“But the officer still ae not enter the uncecupied car after

it reached the police garage, without a warrant to search and

seize, except for some other appropriate reason as in Harris.

(Harris vs. United States, 390 U.S. 234.) In Harris the

officer’s presence in the car was lawful—he was engaged in

protecting the car by rolling up the windows and locking the

doors. In our case, the officer’s presence in the car was not

lawful, for he was engaged in a seizure, if not a search,

without a warrant. The ‘narrow circumstances’ of Harris

are not present here.”

We respectfully contend that the officer’s presence in the car

in the instant case was much more lawful than in Harris, for, in

Harris, as the Circuit Court stated, the officer, “was engaged in

protecting the car by rolling up the windows and locking the

doors.” Whereas, in our case the officer entered Heffley’s car

after the arrest, on a busy street, in order to drive it to the police

station, there to remove and inventory the car’s contents, and

store them for safekeeping prior to sending the car to a public -

12.

garage for storage. How, then, we ask, can it be properly said

that the officer’s presence in the car was not lawful? Everything

the officer did in removing the car from the public street to the

- police garage and inventorying its contents and storing them before

having the car removed to the public garage for storage was to

protect the accused’s property, more so than the police action in

Harris, supra.

In this connection, we respectfully submit va every act of the

officer in this case was reasonable and under no proper consider-

ation of the police action was the search or seizure unreasonable.

’ Furthermore, it should be noted that when confronted with the

documents, Hefiley confessed the burglary for which he was con-

victed.

In the’district court opinion denying habeas corpus, the court

said that it, “. . . thought likely the documents might themselves

have been visible from the outside.” |

However, as stated in the Circuit Court opinion: .

“But the district court did not rely solely on the possibility

that the documents were visible. That court’s primary reason

for denying the habeas application was that where, as here,

the accused was arrested in his automobile in a traffic lane on

a-‘public street, a search of the vehicle made immediately

after removal of the car to a nearby police station should be

. considered incident to and substantially contemporaneous

with the arrest, and therefore reasonable under the Fourth

Amendment.

“The majority of the courts of appeals that have dealt with

the problem support this view. See Price v. United States,

348 F.2d 68 (D.C.Cir. 1965); United States v. Dento,

382 F.2d 361, 365-366 (3rd Cir. 1967) ; United States v.

Powell, 407 F.2d 582, 585 (4th Cir. 1969) ; United States

v. Evans, 385 F.2d 824, 825 (7th Cir. 1967). Contra:

Barnett v. United States, 384 F.2d 848, 860-861 (5th Cir.

1967); Colosimo v. Perini, ...... F.2d ....... (6th Cir.

1969).”

It is also to be noted that in the Harris case, supra, this court

stated:

“Nothing in the Fourth Amendment requires the police to

obtain a warrant in these narrowing circumstances.

“Once the door had lawfully been opened, the registration

card, with the name of the robbery victim on it, was plainly

visible. It had long been settled that objects falling in plain

view of an.officer who has a right to be in the position to have

that view are subject to seizure and may be introduced in

evidence. Ker v. California, 374 U.S. 23, 42, 43 (1963) ;

United States v. Lee, 274 U.S. 559 (1927); Hester v.

United States, 265 U.S. 57 (1924).”

This quotation from Harris, supra, is quoted by the Circuit

Court orf page 4 of its opinion.

In concluding this point or reason for granting the writ, we

“respectfully submit that Preston vs. United States, 376 U.S. 364

(1964), which the Circuit Court considered controlling, is not

applicable to the instant case. For, in Preston, supra, all that

alerted the police was the presence of “suspicious” persons seated

in an automobile on a public street with no suspicious objects

visible from the outside.

This is a far cry from the instant case in which, pursuant to a

police radio report that the accused in a described car had made

several attempts to sell numerous weapons, and in which, pursuant

to specific instructions, Officer Santich arrested the accused on a

busy ‘public street and observed a veritable arsenal of guns on the

rear seat of the car and a pistol under the front seat; and in which

also there is no competent evidence that the documents objected

to were not visible from outside the car.

a ee

Further discussing Preston, supra, there, the police responded - .

to a telephone call at 3:00 o'clock a.m. that three “suspicious |

characters” were parked in a business district for several hours.

Upon arriving at the scene, police questioned the three men, who .

were unable to give satisfactory answers for their being there

~ at that hour. The four officers arrested the three men for vagrancy ;

and searched their persons. They did not search the car at the

scene of the arrest. The car was driven to the police station by

an officer. The men were booked: The car was towed to a garage.

After booking, the officers went to the garage to. search the car.

They found two revolvers in the glove compartment. They. could

not open the trunk, but at the police station a detective told the

ofhicers to go back and try again. Upon entering the trunk through

the back seat of the car, they found items including a phony

snap-on license plate, and mask fashioned from women’s stock-

‘ings. The admission of these items at the trial led to a reversal

of the conviction by the Supreme Court. '

The facts of this case have been set out in detail because of

the necessity of distinguishing this case from Preston, supra.

, The district court stated the rule that a search withouta war-

rant is permissible, provided it is incidental to a lawful arrest.

“That is, the search must be contemporaneous with the arrest, or

‘not too remote in time or place to be valid. |

The doctrine of Preston, supra, was reiterated after a fashion

in Cooper is. California, 386 U.S. 58, 17 L.F.d.2d 730 (1967).

In remarking on the Preston, supra, decision, the court reminded

us that unreasonable searches and seizures depend on the facts

and circumstances of each case (at page 732):

Of necessity, the present case must be factually distinguished

from Preston, supra. We submit that the factual differences are so

significant that the respondent is not entitled to the protection of

its ruling.

“15

In Preston, supra, the officers had no grounds for arrest, except |

that the three suspects were “‘suspicious looking” and could not

give a reasonable account for sitting in their car at 3:00 a.m.

Officer Santich knew that Heffley (by reason of the description

‘given him) was trying to pawn a large number of guns. He

observed a large number of guns in Heffley’s car. He also saw a

partially concealed pistol under the front seat.

In this case, all tems were found in the back seat of Heffley’s

car, and, although partially covered, must have been visible. In

Preston, the pistols were in the glove compartment and the bulk

of evidence was in the trunk. To reach them required the removal

of the back seat. ,

Officer Santich a ees din Heffley’ s car to the police

station three | blocks away and completed his search. This could .

not have taken more than a few minutes. In Preston, no time is

reported. It is obvious, however, that considerably more time

elapsed in Preston. The police first drove the car to the police .

station. They then drove it to a garage. The suspects were booked.

After this occurred, an attempt was made by some officers to

search the car. They couldn't open the trunk, but did obtain two

_ pistols from the glove compartment. They returned to the station.

They were instructed to go try again. Finally, they broke into the

trunk through the back seat and only then found the bulk of the

\ , evidence. This must have taken time. Thus, the time element is

A different. So is the place. We do not know the distances involved

in Preston, supra. But the search was conducted not at the police

station but rather at a garage. Here Santich immediately drove

* three short blocks to the police station and conducted the search

himself. It is not known if this is the case in Preston. Se

, In Preston, the suspects were booked before the search. In this

case Heffley was not.

In Preston, the everits occurred around 3:00 a.m. In this case,

they occurred after 10:00 a.m. and before 4:00 p.m. In Heffley,

Officer Santich was confronted with a suspect having at least one

partially concealed weapon in his car and an arsenal in the back «

seat. It seems reasonable to remove a car from the street and a

man in possession of concealed weapons in the interests of safety.

CONFLICTING CIRCUIT COURT DECISIONS

In United States vs. Evans, 385 F.2d 624 (7th Cir. 1967),-*

defendant was convicted of a narcotics violation. He was arrested

as he was entering his automobile: A search of his person was

made, and the agents started to search-his automobile, when they;

‘noticed a number of people gathering near them. They decided,

“it was advisable to move. Defendant was then placed in an agent's

car, and one of the agents drove defendant's car to the basement

of the Chicago ree Building, - trip “consuming fifteen. —

or twenty minutes.” .

The agents there searched vans’ automobile and discovered

some narcotics which F.vans draied owning. The narcotics’ were

seized and used as evidence, and defendant was convicted.

A motion to suppress was denied, although the defendant

relied on the rule of Preston, supra. The Circuit Court judge in

the /-vans’ opinion quoted from Uniited Staies ex rel. Montgom-

ery vs. Wallack, 255 F.Supp. 566, 569 (S.D.N.Y. 1966) as -

* follows:

‘‘We-need no current reminder. that arrests in a crowded, sib-

standard neighborhood oftimes triggers explosive action . ...”

In answer to the defendant's reliance on Preston, supra, the

court said:

“More applicable to the case at bar is the statement in

Cooper v. State of California, 386 U.S. 58, 61, 87 S.Ct.

el7

788, 791, 17 L.Ed.2d 730 (1967). . ... This case is neither

Preston nor controlled by it. . . .”

The court then concluded the point by stating:

‘Defendant overlooks the basic rule of Preston and Cooper:

_ The Fourth Amendment test is whether the search was rea-

sonable. We hold that under the circumstances of this case,

the search of defendant's automobile conducted in the pres-

ence of the defendant, was a reasonable search.”

This holding is in direct conflict with the Rebewent it Heffley

that:

“The circumstances that the search was conducted shortly

after the arrest, and that it was impracticable to search the

automobile on the street, are immaterial.”

We respectfully submit that the search in the instant case, even

in the absence of respondent, was as contemporaneous as was

reasonably possible, bearing i in mind that the arrest of respondent.

was made at'a traffic light on a busy street. ‘

We also respectfully submit thal under all the circumstances

of this case, the absence of a search warrant did not render this

search unreasonable in view of the mene of the Fourth Amend-

; ment.

See also United States vs. Dento, 382 F.2d 36), (ard Cir.

1967), i in which it was held that after defendant's arrest on a

busy highway, * ‘for reasons of safety there was no search made

of defendant's car while it was — along Route 22." (The

place of arrest.) |

Instead, defendant's car was driven to the State Police Bar-

racks at Clinton, N. J., where a search revealed counterfeit notes.

After defendant's conviction, defendant contended that the evi-

- dence ‘thus seized and introduced in evidence was in ‘violation of

his constitutional rights. The court said that the contention’ “rested

- on two fundamental points: The necessity of a warrant for both

the arrest and search, and the legality of the arrest and incidental

search without a warrant.”

The Third Circuit, Court of Appeals in its opinion affirming

the conviction, stated at page 365 that:

“Clearly from the facts, the search of Dento’s automobile

was substantially contemporaneous with his arrest.” (Citing

—* California, 376 U.S. 483.)

The court then continued :

“Although the place of the search was remote from that of

the arrest, the safety of the officers and defendant required

that the vehicles be moved away from the flow of highway

traffic. This is not a situation where the police take the car to

the station in order to conduct a fishing expedition for evi-

‘dence. Before the arrest was made troopers Decker and

* Cole had every reason to suspect that the defendant was

__ hiding something in connection with his alleged offense since, _

when they motioned Dento’s car to the side of the road, both

officers noticed him lean forward and apparently put some-

thing under the front seat. Once defendant's car was

removed to the safety of the Clinton barracks the police

immediately began the search which uncovered the counter-

feit money.

“Under the facts before us Preston v. atid ieee: sabia

does not control and we are satisfred that the search before

us was reasonable. There are two basic points of departure

separating the Preston decision from this appeal. First, unlike

Preston the instant search was’ substantially contemporane-

ous with the arrest (the entire arrest and search procedure

was completed within twenty minutes). Secondly, there was

a reasonable nexus between the offense the defendant was

arrested for and the search of his automobile, where as in

Preston the search was entirely unrelated to the arrest on the

charge of vagrancy. In distinguishing Preston we do not

overlook the statement made by the Supreme Court that

*[o]nce an accused is under arrest and in custody, then a —

search made at another place, without a warrant, is simply

not incident to the arrest.’ 376 U.S, 364 at 367, 84 S.Ct.

881 at 883. However, no situations are identical and a judi-

cial examination into the reasonableness of a search depends —

a great deal upon the facts and circumstances of the indi-

vidual case. Cf. United States ex rel. Murphy v. State of

New Jersey, 260 F.Supp. 987 (D.N.J. 1965), aff'd, 369

F.2d 698 (3 Cir. 1966), cert? denied, 386 U.S. 965, 87

S.Ct. 1044, 18 L.Ed.2d 114 (1967). Explaining Preston,

the Supreme Court stated in Cooper’v. State of California,

386 U.S. 58, 59, 87 S.Ct. 788, 790, 17 L.Ed.2d 730

(1967) : |

“We made it clear in Preston that whether a search _and

seizure is unreasonable within the meaning of the Fourth

Amendment depends upon the facts and circumstances of

each case and pointed out, in particular, that searches of

cars that are constantly movable may make the search of a

car without a warrant a reasonable one although the result

might be the opposite in a search of a home, a store, or other —

fixed piece of property.”

Please see also the following relevant cases:

Arwine v. Bannan, 346 F.2d 458. (1965); Price v. U.S.,

348 F.2d 68 (1965); Johnson v. State, 238 Md. 528; 209

A.2d 765 (1965); Trotter v. Stephens, 241 F.Supp. 33

(1965); People v. Durgas, 51 Cal. Rptr. 178 (1966) ; People

v. Talbot, 51 Cal.Rptr, 417 (1966); U.S. v. Wallach, 255

F.Supp. 566 (1966) ; Knotts v. State, 237 Md. 417; 207 A.2d

100 (1965); People v. Moschelta, 25 App.Div.2d 686; 269

N.Y.S.2d 70 (1966) ; Fraker v. U.S., 294 F.2d 859. :

These cases all have one thing in common, there was some

_ delay between the actual arrest and the completion of the search.

Further, the search was often not compléted at the actual place

of the arrest.

In each federal case, certiorari was denied. Perhaps the best

authority Respondent can cite comes in Cooper vs. California,

386 U.S. 58, 17 L.Ed.2d 730 (1967), where the dissent said:

_““I can see only two ways to explain the court's opinion. One

is that it overrules Preston sub silentio.””

We submit the court in Preston meant something more than

mere inconsequential deviation in space and time is required to

render a search and seizure invalid on the basis it was not inci-

dental to a lawful arrest.

The incriminating evidence introduced at the trial court, and

upon which these proceedings are based, were found on the floor

of the petitioner's automobile (TR 29-30). While the incrimi-

nating evidence may have been partially covered or obscured by

“Sen wie stata ate a aaa dnaeaaairawerad

less in plain view.

Petitioner was arrested on a concealed weapons charge under

California law, which provides:

. any person who carries concealed . . . within any

vehicle which is under his control or direction any pistol,

revolver, or other firearm capable of being concealed upon

the person without having a license to carry such firearm as

provided in this chapter is guilty of a misdemeanor, and if

he has been convicted previously of any felony or of any

crime made punishable by this chapter, is guilty of a felony.”

Thus, the car was an integral element of the charge and the

police had it in lawful custody. Furthermore, the arresting officers

had the duty to remove the automobile from the traffic lane of a

public street and to safeguard its contents after the arrest: They

were, therefore, lawfully inside the automobile. Under these cir-

cumstances, the items found in the automobile were not the prod-

uct of a search, but were subject to seizure and were lawfully

" introduced into evidence.

In the Harris case, supra, the police impounded an automobile

- as evidence. A search was conducted more than an hour after the

accused had been brought to the police station. The incriminating

evidence was an automobile registration showing the name of the

owner of the automobile. The court said:

“Once the door had lawfully been opened, the registration

card, with the name of the robbery victim on it, was plainly

visible. It has long been settled that objects falling in the

plain view of an officer who has a right to be in the position

' to have that view are subject to seizure and may be intro-

duced in evidence. Ker'v. California, 374 U.S. 23, 42-43,

10 L.ed.2d 726, 743, 83 S.Ct. 1623 (1963); United

States v. Lee, 274 U.S. 559, 71 L.ed. 1202, 47 S.Ct. 746

(1927); Hester v. United States, 265 U.S. 57, 68 L.ed.

898, 44 S.Ct. 445 (1924).”” (See also Miler: v. ULS., 356

F.2d 63 (1966).)

Because the objects were in plain view, and cote the officers

had a right to be in the automobile, no search occurred, and the

incriminating evidence was lawfully admitted by the trial court.

For the foregoing cogent reasons, we respectfully urge that this

petition for a writ of certiorari be granted. -

DATED this 30th day of January, 1970.

Harvey DICKERSON

Attorney General of Nevada

Attorney for Petitioner

APPENDIX “A”

UNITED STATES COURT OF APPEALS ’

FOR THE NINTH CIRCUIT | }

No. 22,661

James A. HEFFLEY, Appellant, vs. CARL HOCKER, WARDEN,

NEVADA STATE PRISON, Appellee.

[December 9, 1969]

APPEAL FROM THE UNITED STATES DISTRICT COURT

' FOR THE DISTRICT OF NEVADA

Before: HAMLEY and MERRILL, Circuit — and POWELL,

District Judge* ,

HAMLEY, Circuit Judge:

James Alvin Hefficy, serving a life sentence in Nevada State Peni-

tentiary, appeals from an order —— his application for a writ of

habeas corpus.

Heffley’s incarceration is pursuant to a burglary conviction and a

subsequent habitual criminal conviction obtained in 1966. The bur-

glary conviction was upheld on appeal on March 20, 1967, one justice

dissenting. Hefficy v. State, 83 Nev. __..., 423 P. 2d 666 (1967).

Hefficy alleged in his application for a writ that he was deprived of

his Fourth Amendment rights because documents scized during an

illegal search of his automobile were received in evidence against him

at his state burglary trial.

The facts pertaining to the seizure of these documents are not in

dispute. On November 13, 1965, Officer George Santich of the Sacra-

mento, California police department, received an order to investigate

a report that a person driving a 1957 blue and white Buick with

license number LUS 507 was trying to sell some guns. Sometime

thereafter Santich saw this automobile being driven along a Sacra-

mento strect. Santich drove along behind the Buick until it stopped

for a traffic light. He then got out of the police ear and approached

the other car. As he did so he observed a large quantity of guns, par-

tially covered up, on the back seat of that vehicle

°The Honorable Charles L. Powell, United States District Judge for the

_ Eastern District of Washington, sitting by designation

’ Santich asked the driver of the Buick, Hefficy, for his identification

and driver's license. As Hefficy was in the process-of getting his wallet,

Santich observed the butt end of a gun protruding from under the

seat where Heffley was sitting. He then asked Hefficy to get out of the

car, and placed him under arrest for possession of the gun. Santich

did not have a warrant for Hefficy’s’ arrest. The officer called for

another squad car to take Hefficy to police headquarters. Santich then

drove Heffley’s car about three blocks to the same police station.

Although Officer Santich looked over the guns in the back seat of

the Buick when he arrested Heffiey, he made no exploratory search of

the car at that time. Heffley was removed to the police station within

three minutes after the arrest. Santich placed the Buick in a private

- stall at the police station and, without a search warrant, immediately

searched “the whole car, the trunk, back scat, under the hood, wheels,

and everything.” Heffiey was in police custody in another part of the

police station at that time. After the search was completed, the car

was taken to a private garage and impounded. ‘

In the course of his search, Santich found the documents in ques-

tion on the rear floor of the Buick. He had not seen them before con-

ducting this search. The documents consisted of two passports, a

certificate of registration for a two-wheel trailer, and a certificate of

ownership for a one-half ton pickup. All of these papers had been

stolen during the burglary for which Heffiey was convicted. They were

received in evidence over the objection of Heffley’s counsel that ‘they

were obtaimed as a result of an illegal search and seizure.’

The district court questioned whether there was a search at all,

under these-facts, pointing out that most of the articles seized were. in

plain vjew in the rear portion of the sedan. The court conceded, how-

ever, that the documents here in question may have been covered or

obscured by the guns and other paraphernalia.

In all probability, the documents were not visible from outside the

automobile, since Officer Santich testified that he had not seen them

before conducting the search. In any event, if it be assumed that the °

documents were plainly visible so that no search was required, that

alone would not validate the setzure of the documents without first

HefMley” s trial counse! did not make a particularly forceful objection to the

— ntreatuction of these documents. However, any problems of waiver were cured

by the Supreme Court of Nevada's comsuderation of the search and scizure

question on the merits. Sce Warden. MVarviand Penitennary » Havden. 187 US

294, 297 n 3. Curry » Wilton, 406 F.2d 110, 112 (9th Cur 1968)

y ai

obtaining a search warrant. Article IV- proscribes unreasonable _seiz-.

ures as well as unreasonable searches. See Pendle fon v. Nelson, 404

F.2d 1074 (9th Cir 1958).*

- The facts of ‘this case are distinguishable from those of Harris v.

United States, 390 U.S. 234 (1968), in whigh a police seizure of a

registration card found in an impounded alttomobile was upheld.

While there was a police search of the Harris;automobile, the court

stated that the registration scard was not discovered or scized while

the police were conducting the search.

The impounded car nh held in a place open to the weather

and it had begun to rain. The windows of the car were rolled down

and the doors were unlocked. The officer opened the front door on

the passenger side “in order to secure the window and door.” As he

did so he saw the registration card lying face up on the metal stripping

over which the door closed. The Supreme Court held that since «the |

officer had a right to open the door in his effort to protect the vehicle,

he had a right to seize the card which was then plainly visible and

could be obtained without an unauthorized entry. The Court made it

clear that, with regard to the registration card, no entry. into the

vehicle for the purpose of search, or even for the purpose of seizing a

card visible from the outside, was’involved. It was in this context that

the Harris Court said:

‘“Nothing in the Fourth Aniendment requires the police to obtain

a warrant in these narrow circumstances.

“Once the door had lawfully been opened, the registration card,

with the name of the robbery victim on it, was plainly visible.

It had long been settled that objects falling in the plain view of

an offiGer who has a right to be in the position to have that view

are subject to scizure and may be introduced in evidence. Ker v.

California, 374 U.S. 23, 42-43. (1963): United States v. Lee,

274 US. S559 (1927); Hester v. United States, 265 US. 57

(1924).”

In our case the officer saw, from a point outside the car, weapons

on the back seat of the car. The ‘removal of the guns would probably

have revealed the documents in question without the need of a further

search or possibly, as the district court thought likely, the documents

might themselves have been visible from the outside. But the officer

"We there stated:

“The view of the jevadence] through the window may have provided proba.

bie cause to obtain a search warrant but, since no cugent circumstances

were shown to etist, such view did not authorize a seizure without such a

warrant or consent.” 404 Fold at 1077

- a) 2

sull could not enter the unoccupied car after it reached the police

garage without a warrant to search and seize, except for same other

appropriate reason as in Harris. In Harris the officer's presence in the

car was lawful— he was engaged in protecting the car by rolling up

the windows and locking the doors. In our case, the officer's presence

in the car was not lawful, fot he was. engaged in a svizure,-if not a

search, without a warrant. The “narrow circumstances” of Harris are

not present here.

But the district court did not‘rely solely on the possibility that the

documents were visible That court's primary reason for denying the

habeas application was that where, as here, the accused was arrested.

in his automobile in a traffic lane on a public street, a search of the

“vehicle made immediately after removal of the car to a nearby police

station should be considered incident to and substantially contempo-

rancous with the arrest, and therefore reasonable under the Fourth

Amendment. - |

The majority of the courts of appeals that have dealt with the prob-

lem support this view. See Price v. United States, 348 F.2d 68 (D.C.

Cir, 1965), United States v. Dento, 382 F.2d 361, 365-366 (3rd:

Cir, 1967); Umited States v. Powell, 407 F.2d S82, S85 (4th Cir:

1969). United States v. Evans, 385 F.2d 824, 824 (7th Cir. 1967).*

Contra, Barnett v. United States, 384 F 2d. 848, 860-861 (Sth Cir.

1967), Colosimo v. Perini, F.2d 0, (6th Gir 1969)

The definitive Supreme Court decision in this arca is Preston v:

Limited States, 376 US. 364 (1964). In that case the police arrested

‘threee men for vagrancy after reeciving a report that the.men were

“acting suSpiciously” because they had spent most of the night seated

iN A motorcar parked in a business district’ The three men were-imme-

diately searched for’ weapons at the scene and then taken to police

. . "

In Powell, however. the court also pointed out that the automobile in ques

Hon was subject to topdetture under 49 ENC & 78) because it was being used

to carry contraband Ue Suieortet mones) Jd at S88" This would appear to bring

that case under the crxaception recegnized in Cooper vo Calitornia. tan USN 48

(1967) Moreover un Powell the Court observed that if the reception of the

sewed articles deprived the defendant of hie Fourth Amendment riehts. the

‘crfor was not preyadicial because at the same tral Powell was ale convicted of

uttering avforged bull, for which he receinwed a concurrent sentence: 407 F 2d at

ant

‘The force Of the Peans decision was somewhat undercut bv the Seventh,

§ ourt’s subsequent decnyon im U mired States vo Harvey Y97 Ed O28, 628

£29 (7th Cor, 1968) ‘i

In « core the Saath Carcont withdrew from the position it had previous!

taken in freine +) Ramnan, 4460 F 3d 488 Coth Cor 1968). and Cranford 1

Rannan io b 2d SOS coth Car - 194) that Pree sh CU nited States WOH US

Ted. Could be datinguiashed on the facts .

27 | ,

headquarters. Subsequently the police towed the car, which had not

‘been searched at the scene of the arrest, to:a garage and twi

searched it. This search turned up evidence of a planned robbery, for

which the trio was convicted. The police acted without a warrant in

conducting this search and attempted to justify it on the ground that

it was incidental to a lawful arrest. The Court: rejected this argument,

holding expressly that:

“Once an accused is under arrest-and-in iil then a search.

{of his automobile] made at another place, without a warrant, is

simply not incident to the arrest.” Preston, at 367.

The Price, Dento, Powell and Evans cases cited above were decided |

_ after Preston. In cach, the court sought to distinguish Preston because

the time interval between arrest and search was shorter than in

Preston; or because, unlike Preston, a search of the vehicle on street

was impracticable due to tgaffic or a gathering crowd; or because,

unlike Preston, the search Was. related to the charge upon which the

afrest was made; or because the accused was present when the search

_was made at the police station. In Barnett and. Colosimo, Preston was

held to be applicable despiteefactual differences of this kind.

Appellee attempts the same kinds of distinction between the facts

of the instant case and those of Preston, claiming. for example, that

the time lag and distance involved here were much less. However, .

reading the Preston precedent literally, as this court has consistently

done in the past, we do not belicve such distinctions are valid. See’

Pasterchik v. United States, 400 F.2d 696, 699 (9th. Cir. 1968);

Schoepflin v. United States, 391 F.2d 390, 393 (9th Cir. 1968);

Lucero v. Donovan, 354 F.2d 16, 20 (9th Cir. 1965). The above-

quoted language from the Preston decision 1s in-such categorical form

that any disposition to relax the application of the rule announced

there should appropriately come first from the Supreme Court

The Supreme,Court has not indicated approval of any such dilution.

of the Preston holding, but has, in fact, recently made ft clear that

Preston is to be stringently applied. Late last term in Climel vy. Cath-

jornia, 398 US. 782 (1969). the Court emphasized the continied

breadth and vitality of the Preston holding that an incidental search

must be conducted: at the same time and place as the arrest. There the

Court cited Preston as. authority for a sharp curtailment of the per-

missible scope of a warrantless search of a home conducted pursuant

to a lawful arrest. The Court quoted with approval the following

language from Pre stom: .

‘

‘The rule allowing contemporancous searches ts justified, for

example, bv the need to scize we apons and other things which

might be used to assault an officer or effect an escape, as well as

by the need to preverit the destruction of evidence of the crime—.

things which might casily happen where the weapon or evidence

is on the accused's person or under his immediate control. But

these justifications are absent where a search is remote in time.

- P poe! hae the arrest. * 395 U.S. at 764, quoting from 376

at 36

In very similar. language Chimel holds that a warrantless search of

a residence, incident to a lawful arrest, may not go beyond the person

of the aceused “and the area from within which he might have

obtained cither a weapon -see that could’ have been used as

evidence against him.” 395 U.SNat 768. However, we do not here rely

on the Chimel holding as such ss use the rule of Chimel does fot

apply to searches conducted before June 23, 1968, the date of the

Chimel decision.’ Our holding here rests directly on Preston, force-

fully adhered to in Chimel, ,

In the only other court of appeals case decided since Chimel, this

has been expressed..We refer to Colosimo. Perini, decided by the

Sixth Circuit on September 17, 1969."

The S reemenecocel for a warrantless search found: absent in -

"The question of the retroactivity of Chime! was expressly left open by the ¢

Supreme Court in Von Cleef vo New Jersey, JOS US B14, 818 61969) and

Shipley v California, ¥95 US. 818, 819 61969). and by this circuit in Jordan

v United States, - F.2d.. (9th Cir, 1969). decided September 15. 1969

However, in Wilhams vo United States: F.2d (9th Cir 1969). decided

October 17, 1969, we held Chimel to be applicable only as to searches made on

‘or after June 23, 1969

‘In Colosimo, the Sixth Cifcuit said

“We are now. of the view, however, that since we made those decisions,

and since the District Judge's ruling here, further dlumination of the .

Preston decision by the Supreme Court in Chime!» California, YS US

782 (1969), requires.a different result: In a case as this where there was

sufficient opportunity to procure a search warrant after the defendant was

arrested and taken to the police station and while the automobile to be

searched remained In police custady, the search of an automobile withotit

‘a warrant, away from defendant's person cannot ‘stand Fourth Amendment

attack,

“With the perscn, or persons. suspected of crime and the automobile to

tp searched both in police custody. the precipitaus action of a warrantless

search is no longer justified It is true that in Preston the vehicle was

searched ai a point away from the scene of arrest, while here the vehicle

temained at the place where the defendant was arrested Chime! however,

persuades us that such factual distinction is not of controlling umpartance

We believe that Chime! instructs us that the rule of Precion decided prior

to the thal here involved. is the law that controls thi case Therefore, we

need not consider whether Chime! is to be given retrospective effect. The

evulence seized should have been suppressed ” >

sy | aN

29 ' . Bs " e

_ Preston were similarly lacking here. When the search of Heffley’s.

automobile was made at the police station, Heffley. was not in\ the

vehicle nor in its immediate vicinity, He was in another part of \the

building in police custody. At that time he had no power to obtain

from the interior of the automobile cither a weapon of something that

could have been used as evidence against him. This is the critical fact.

The circumstances that the search was conducted shortly after th

arrest, and that it was impracticable to search.the automobile on th

Street, are immaterial. It was practicable for police officers to obtait

a search warrant before making the search The automobile, after

heing removed to the police Station, was in no danger of being ran-

sacked or moved without police approval. |

Under Preston, read in the light of Chime! the warrantless search

of Heffley’s automobile, at the station was in yiolation of ‘the Fourth

Amendment.” Accordingly, the introduction at the burglary trial ‘of

the documents seized as a result of that search deprived him of his|'

rights under the Fourth and Fourteenth Amendments. Mapp \. Ohio.

367 U.S. 632 (1961), and entitled him to habeus relief a

Heffley also alleged in his habeas application that the prosecution's

introduction of incriminating statements made by Heffley while in

“The Nevada Supreme Court upheld the search of H@Mey's car at the police

station on the theory that it was meant solely to inventory Heffles's Kelonginges

. for safekeeping. Since the court did not view Santich’s actions as on ciploratory

search. there was no need to decide whether it was incident to a lawful arrest

HeMev v. State, 83 Nev . 423 Pld 666 61967) In this habeas proceeding |

the district court declined to adopt this theory and. on this appeal the warden

does not defend the search on that cround Whatever merit there may be to an,

“yaventory” exception to the: general: search warrant requirement. the unas |

puted evidence here demonstrates that the purpose of the search of Hefews,

automotle was exploratory. There is no other reasonable explanation for OM. |

cer Santich’s search “under the hood wheels, and everything ” as he Yeatitiedt

"To he, distinguished are cases in which the automobile ivor may be held as |

contraband. Cooper vo United States U6,U 8 68 (1987 Lomted States 4

Powell, 407 F 2d 482 (4th Cir 1969). where a stolen spent nfreing helt’

for the neghtful owner, Schorpfin «United States 91 FO 90 6Oth Cy

1968), or where articles are discovered while police are takinfg measures to.

protect an automobile after the aocupant has been arrested) Merny vt nited |

States VOOUS 234 61968): '

It should also be clear from the foregoing discussion that we are not here

concerned with the search of an antomotile under circumet Mees where it ts |

not practicable to secure a warrant because the vehicle or its contents can be |

quickly moved out of the locality or purtadiction in wlneb the warrant must be

sourht The continued validity of this distinction was made clear mm Cheme

foutnete 9 andin Cally United States ru (Mh Cor 1909) deonded

October 27, 1969 In the latter case a Wwarrvanticw: search of a duffel bar found |

on the tailgate of a parked station wagon was upheld because. thy Kae Soould |

have been quickly mowed” ; :

police custody violated his constitutional rights, eee al ea

nicnts were obtained through the use of the illegally-seized documents

relerred to above. The district court did not reach this question since

it held that the documents were not illegally seized. This is a matter

to be vaplored in the further proceedings that may follow this opinion.

In his reply -bricf on this appeal, Heffley argues for the first time

that his arrest was illegal because it was not pursuant to a warrant nor

" _ based,upon probable case. Apart from the untimeliness of this point,

it is moot. The legality of the arrest would be material only with

regard to the lawfulness of the search and scizure. Since we have

already held that the search and seizure was unlawful, Heffley will not

benefit further from a holding that the arrest was also illegal. .

The judgment is reversed and the caust is remanded with directions

' to allow the state a reasonable time within which to retry HefMey on

the burglary charge, tailing which the Strict court shall i¢suc a writ’ ’

of habeas corpus.

POWFLL. District poate ( Dissenting)

I would affirm and hold that the seizure of the incriminating docu- _

ments falls within the rule announced in Harris v. United States, 990

US 234, 236 (1968), where the Court held:

“It has long been settled that objects falling in the plain view of

an officer who has a right to be ia the position to have that view

ate subject to seizure and may be introduced in evidence. Arr v.

Calitornia, Y74 US. 23, 42-43 (1963): United States v. Lee,

274 US. $89 (1927); Me mrs United’ States, 2645 US. -S7

(1924)." ‘

In Harris, an officer was examining the defendant's car for the pur-

pose of removing any valuables When he opened the door to the

vehicle he viewed a régistration certificate, The document was sized

and used to incriminate the defendant at trial. The xamination was

conducted pursuant to a police regulation, and as in the instant case,

the evidence was scized without a warrant and while the a

was incarcerated in the station houw

Defendant Heffley was arrested for egal poweswion of a on. Al

the scene of arrest the officers viewed: in bulk, the following Heme:

ving in the back portion of the vchicle: six shotguns, two rifles, ‘Ime

pestols, four cameras, ficld glasses, a timing light and vanous papers

The documents in issue were cither underneath the weapons of lying

next to them.’ When Heffley’s vehicle was later iaken to the police

Assuming the two passports and the two certificates of registration

,were not visible from outside the vehicle, it does not follow that they

could not be seized by the officer once he was lawfully in the vehicle.

As in Harris, if the officer's presence in the car is lawful, he can seize

evidentiary items falling into view at that time. In this case, Officer

Santich’s presence in the vehicle was the result of the view of the

weapons he had at the scene of arrest, and therefore lawful.

The* majority opinion is correct in stating “* * * [t}he “narrow

circumstances’ of Harris are not present here.” Majority Opinion:

supra p. 4. In Harris, the officer did not have a view of any incrim,

inating objects before he entered the vehicle. The ‘entrance there was

justified under a police regulation. In this case the officer had the view

before he entered the sehicle, and, as Harris clearly holds, those -

objects so siewed were subject to immediate seizure. Therefore | can-

‘not agree that the officer in Sacramento had no right-to enter and

’ remove the guns or that he was required to get a search warrant to-

scize additional objects he saw once he was within the vehicle

Adopting the reasoning of the majority opinion based on Pendicton

¥. Neteon, 404 F.2d 1074, 1077 (9th Cir, 1968), the officer in Harris,

could not haye sized the incriminating documents without «first

obtaining a warrant. His scizute ould be unreasonable sitce no

CLigent circumstances cxsted justifying a Wastantless sei/ure

‘, Such feasoning docs violence 10 the Harris opinion, and the premise

upon which the United States Constitution should be interpreted

“There is no war between the Constitution and common sme” * Mapp

¥. Ohio, ¥O7 US 643, 687 (1961)

_ Deermons involving facts similar to those before us have sustained

the validity of the seizure without a warrant, See ¢ g, Lefer v. United

States, 409 F.2d 44, SO (8th Cir, 1969), Creighton v United States

406 F2d 651, 652 (D.C. 1968); Pedple ». Harris, 64 Cal Rpt 313,

434 Pd OO 11908). OF United Sater v. Rive, 408 F 26 134 Oth

Cir, 1968), cert, denied 194.08 989 (19609) Nor is a warrant.

Mat of the artales sized were in Plan vice in the Neat preetivons oft the selan

* amd the ov nlentiry deme coortial te the Nevada predcotum were there found

altiuengh they mene hane bern comer oft ob wred by the cane and other feta

persis” (0 phase ahded ) Record af 14°

i Fae 32

sisinidsscidie cially 4h Sais ini te akiek Gillies a po

- session of police. Westover v. United States, 394 F.2d 164, 165 (9th

Cir. 1968).

There is no argument with the proposition that the officers could

have seized the items at the scene of bees Fas cama of the feasibil-

ity of obtaining a warrant.

“The practicability of obtaining a warrant is not the controlling

factor when a search is sought to be justified as incident to arrest,

** *” Ker v. California, 374 U.S. 23, 41 (1963).

Instead, the officers drove the vehicle three blocks from the scene of

‘ arrest and there immediately seized the incriminating documents. If

crxigent corfcumstances were required it would seem that the public

safety factor resulting from police procedures utilized in this case

sullice. The officers here should be commended not condemned.

“1 would als. affirm on other grounds. The scizure here was not

“8 * * remote in time or place from the arrest.” Preston v. United

States, 376 US, 364, 367 (1964). Under the cipcumstances present |

here the availalility of warrant provess is not determinate. Ker v.

i alifornia, supra

The majority opinion places this Circuit in the minority of the juris.”

thetions which have decided this question. Majority Opinion supra p.

A This position & not heretofore reflected by our previous holdings

suppressed where some four hours after accused was arrested F BI

agents went to his home and searched his car located in the garage)

Schunptin ¢ United States, 1 F 2d 90 (9th Ci), cert. demed

393 LS 865 (1968), (search held violative of Preston, supra, where

rel agent was called inte case and searched accused's car at police

gatage «ime two hours after arpest) Lucero v Donovan, ‘$4 F 2d

16 (9th Cir 1965) (evidence suppressed where accused was picked

up on the street, driven to his place of residence, and residence

searched) In cach of the dbowe cases the location of the search was

either distant from the place of arrest of the lapse of time — arrest

to search exceeded two of more hours

The majorty would find support in Chimel v ¢ alitornia, OS US

TS) (190) metwithstanding ‘tis Cirewit’s recent decision limiting

— Chimel tt prospective appheation Willams, cf al v United States,

Hoetfles + cat ae topped on a three lene ome way street ¢ ate were bathed

up beled the mene of anteet and ecre totnced around in onder te tesume then

travel (Recetd ot 43 aed tet See Urorre et Mewlen, Ue 0 A 194 i ath Cw

te") cert dened 490 0S [068 C1 On8) where the needs of creed conte

and potaten of the preene eatranted tremeval of the cat and «2 sulsequent

ecatch ‘

(%h Cir.-Decided Oct. 17, 1969). In so doing law enforcement offi-

cials are held to a standard’in 1965, announced in 1969. The arrest

and search in this case occurred on November 13,1965. —

I do not find a reference in the Chimel opinion that indicates

Preston is to be “stringently” applied as: the majority, states. On

the contrary that opinion specifically excludes certain aufomobile

searches. Preston is cited as authority in Chimel but the Supreme

Court has not enlafged that holding even though opportunity’ to do |

so has cxisted.* ;

This Court should favor the reasoning of the Eighth Circuit in,

Leffler v. United States supra, where Judge Mehafly, writing in a case

similar to this one, says:

denounces only unreasonable searches and seizures, and if the

criminal laws of this country are to be enforced and law-abiding

citizens protected care should be taken not to place a doctrinaire —

"of hypertechnical interpretation upon the plam and simple lan-

guage of the C onstitution in’eur Zeal to protect the rigiits of those |

charged with crnmes.” Lefler vo United States, 409 Fold 44, 49

(Sth Cir 1969) '

’ LT would affirm

"st 8S at “H4tn ,

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.