Opposition Brief — Pennsylvania v. Giannini

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BBS-VWO4 “iy Pree

1] JAN 27 189

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{ JOSEPH F SPANIOL, JR

IN THE | se

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

COMMONWEALTH OF PENNSYLVANIA,

Petitioner

Vv.

PAUL GIANNINI AND DOUGLAS VOIGHT,

Respondents

BRIEF IN OPPOSITION TO PETITION FOR WRIT

FOR CERTIORARI FROM THE SUPREME COURT OF

PENNSYLVANIA

Jon J. Auritt, Esquire

Elisabeth R. Aaron, Esquire

Attorneys for Respondents

130 E. State Street

Media, PA 19063

(215) 565-7530

COUNTER-QUESTION PRESENTED FOR REVIEW

The "question" presented by the

Commonwealth was not actually before the

trial court because (1) the police only had

a suspicion that they were observing

ongoing criminal conduct; and (2) the

defendants were not procecuted primarily

due to what the police had observed prior

to entry, but with what was subsequently

found in a separate bedroom they shared

after the police pretextually claimed they

were making a routine security search of

the entire residence, Furthermore, as

discussed in the Brief in Opposition to

Petition for Writ for Certiorari to the

Supreme Court of the United States, other

critical questions are also involved here

that were decided adversely to the

Commonwealth.

TABLE OF CONTENTS

Counter-—Question Presented for Review .

Table of Contents .

Table of Authorities .

Reasons for Denying the Writ of Certiorari .

Conclusion ,

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Page

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iii

TABLE OF AUTHORITIES

Cases Page

Chimel v. California,

372 UB. eae OF &. Ct. 2034, 23 L. 84. 24

685, reh. denied, 396 U.S. 869, 90 S. Ct.

(PS 2s) ie IS: | | per Are ee es

Commonwealth v. Beard,

282 Pa.Super. 583, 423 A.2d 398 (1980). . 3

Commonwealth v. Eliff,

300 Pa. Super. 423, 446 A.2d 927 (1982) . 3

coo cae v. New Hampshire,

>. 443, 91 5. Ct. 2022,

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Illinois v. Gates,

S02 Use: anaes bee 8, CO. 227, 76 Ls BE

2d, reh. denied, 463 U.S. 1237, 77 L. Ed.

2G. 4408, See BS. CE. 22 CA9Ses « & et te 2

iii

REASONS FOR DENYING THE WRIT

Even if the Commonwealth of

Pennsylvania is correct that there is

some confusion among the lower courts in

their interpretation of the

"inadvertence" requirement of the plain

view doctrine as established in Coolidge

v. New Hampshire, 403 U.S. 443, 470, 91

S. Ct. 2022, 2040, 29 L. Ed. 2d 564, 585

(1971), this present case is an

inappropriate vehicle for resolving the

problem for a number of = significant

reasons;

(1) Probable cause did not exist

for the police to obtain a warrant for

the original entry into the dwelling

where defendants resided. The tip from

the previously “unencountered" informant

that the residents “looked like they were

using drugs," supplemented by the

observations of a police officer, who

was relatively inexperienced in narcotic

investigation, did not meet the "totality

of the circumstances" requirement of

Illinois v. Gates, 462 U.S. 213, 103 S.

Ct. 2317, 76 L. Ed. 2d 527, reh. denied,

463 U.S. 1237, 104 S. Ct. 23, 77 L. Ed.

2d 1453 (1983). Through binoculars from

a residence next door, a police officer

testified he saw what he and another

officer thought were "a pipe and a packet

of rolling papers,” and, later, he saw an

individual “pouring a white powder” on

what he thought was an electronic scale,

No doubt the officer was suspicious, but

Suspicion does not rise to the level of

probable cause.

(2) Even if probable cause existed

for the police to obtain a warrant to

arrest the person observed by them or to

search the immediate area where they

observed the individual, the police chose

to enter this residence without a

warrant, arrest the individual observed

and search the entire house including the

separate and private bedroom shared by

the defendants, who were not observed by

the police or present when the police

were in the residence. No adequate

showing was made of exigent

circumstances, such as the likely

destruction of evidence or departure of

the observed individual, that would

justify the failure of the police to

obtain a warrant.

(3) Even if the warrantless entry

was constitutionally permissible, it was

improperly effected, because the officers

did not “knock and announce” their

presence, No exigent circumstances

existed to justify this failure either.

See Commonwealth v. Eiliff, 300 Pa. Super

423, 446 A.2d 927 (1982); Commonwealth v.

Beard, 282 Pa. Super. 583, 423 A.2d 398

(1980).

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(4) The search incident to the

arrest went far beyond the permissible

scope allowed in Chimel v. California,

335 0.8. 732, @ 8&8. Ce. Bese. 22 bs. WE

2d 685, (1969), reh. denied, 396 U.S.

S69, 390 S. Ct. 36, 24 &. BG. 26 ive

(1969). Officers conducted a_ general

search thoughout the entire residence and

entered the separate and private bedroom

of the defendants, and the separate and

private bedroom of another tenant as

well, all of whom were residing there

along with the individual the police had

observed and arrested upon entry.

Although no one other than the suspect

arrested at the door was thought by the

police to be in the building, and the

police never articulated any potential

danger they though imperiled them, this

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room-by-room search was speciously

rationalized by the police as a routine

security measure when it was obviously a

purposeful illegal search for drugs and

related contraband.

(5) The observations made by the

police when they were illegally in

defendants' bedroom looking around then

became the basis the police used to

obtain a search warrant (the affidavit

for which was phrased in unspecific and

conclusionary language) to seize drug

paraphenalia from defendants' bedroom for

which defendants were ultimately arrested

and which was eventually and properly

surpressed.,

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CONCLUSION

For all the foregoing reasons,

Respondents respectfully request that the

Petitioner for Writ of Certiorari be

denied.

Respectfully submitted,

on J. Auritt, Esquire

Elscteth KAnn.

Elisabeth R. Aaron, Esquire

Attorneys for Respondents