# Petition for Writ of Certiorari — Hocker v. Heffley > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1455%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1970 - **Citation:** 399 U.S. 521 ## Text ‘LIBRARY Mass SUPREME COURT, U.S. ie EL ED Hee Sepa ee igh eee | FEB 17 170 INTHE * | Mtn SUPREME Ci | opm 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 # . ° LET ET TO OTE —_ : Ps ‘ . a ° ~ 8 - 4 ese . . : : — ‘ « \ 7 ‘ . a . , : x ; o eee ? x i . % - . . e * | ie ‘ ‘ : ° . ° i . . e ‘ —— y ihe. Ny y . . ° - i = % . . . ad Es, . . . > , * \ . 3 ‘ ‘ .* ° ~ 3 . , > >. ‘ ; / ‘ « - ‘ 3 q : ° . — A : — ‘ > oY ee as” . . qe . . ve > 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. fy 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 . ~~ 7 2 —— eee —— —, a ‘ . . . . ?. . = ’ Fy bs . e . . — e . . 4 . ~ . 2 4 . e ™ * . a be = - . A . bad . - . ° ms . . . 2 , . a " ¥ . . . . s r . ‘ ” a . . - r ’ . iat i i ani rr a 7) . : FY . . . > e . ’ ’ . —_” . . R 2 a , \ : . » 2 » im e . - . . : ae ¢ ses 8 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.............-...-- 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, 16 » 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 mo 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 y ca * 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 C 19 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. : 20 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 21 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. 22 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 23 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 24 ’ 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 26 - 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 . ws 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 28 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 same view concerning the significance of ©/rmel in constgyyae Preston - 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” ; : 30 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 31 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. the “econd” suprrets the findings of ‘the detract court, below thar ~* * © 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 Pasterduk © United Sates, 400 F 2d 696 (9th Cir, 1968) Cevidence 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 ‘ 33 (%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: “* © * We must bear in mind that the Fourth Amendment 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 , “ee ec ¢ . t aeree © California ike US Se >) 68 (1987) idisent) » --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1455%3A1. Public record. Not legal advice.