Petition for Writ of Certiorari — Booth v. Arkansas

Suoreme Court, US,

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SRaolae sk FILED

No. | mAR 13 1989

see SP ANIOL, JR

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IN THE

Supreme Court of the United States

October Term, 1988

RICHARD BOOTH ......... . Petitioner

VS.

STATE OF ARKANSAS ....... Respondent

ON PETITION FOR WRIT OF CERTIORARI

TO THE ARKANSAS COURT OF APPEALS

PETITION FOR WRIT OF CERTIORARI

PRISCILLA KAREN Pope

P. O. Box 3423

Fayetteville, Arkansas 72702

(501) 443-3985

Attorney for Petitioner

TREVATHAN PRESS # LITTLE ROCK

QUESTION PRESENTED

A. DOES THE INSTRUMENTALITY OF A

CRIME EXCEPTION EXCUSE THE OFFICERS’

FAILURE TO OBTAIN WARRANTS TO SEARCH

AN IMPOUNDED VEHICLE ABSENT EXIGENT

CIRCUMSTANCES OR SEARCH INCIDENT TO AN

ARREST.

TABLE OF CONTENTS

QUESTION PRESENTED ..----+-::*°° i

A.DOES THE INSTRUMENTALITY OF A

CRIME EXCEPTION EXCUSE THE

OFFICERS’ FAILURE TO OBTAIN

WARRANTS TO SEARCH AN IMPOUNDED

VEHICLE ABSENT EXIGENT

CIRCUMSTANCES OR SEARCH INCIDENT

TO AM ARREGI.. 20 sss te te Fs iii

Table of Authorities Cited... -+--++++s° iV

Opinion Below ..----+ +: °°" ° Py

Seslatietingn . 4 te ee ee ee 2

III. Constitutional Provisions Involved

A. Constitutional Provision—4th Amendment . . 3

B. Constitutional Provision— 14th Amendment . . 3

Statement of Facts ..--+.+++::° 4

V. Reasons for Granting the Writ

A. This case provides this Court with an

opportunity to delineate the boundaries of the

“instrumentality of a crime” exception to the

warrant requirement for searching motor

vehicles absent exigent circumstances or search

incident to am arrest. .....-..+.- 7

B. The evidence taken from defendant's vehicles

without a valid search warrant and absent

exigent circumstances should have been

suppressed . , 1]

Vi. "EE eras ae ae ae

TABLE OF AUTHORITIES

Cases:

Burkett v. State, 271 Ark. 150, 607

S.W.2d 399 (1980)

Cardwell v. Lewis, 417 U.S. 583, 94

S.Ct. 2464 (1974)

Chambers v. Maroney, 399 U.S. 42, 90

S.Ct. 1975 (1970)

Freeman v. State, 258 Ark. 617, 527

S.W.2d 909 (1975)

McQueen v. State, 283 Ark. 232, 675

S.W.2d 358 (1984)

Scisney v. State, 270 Ark. 610, 605

S.W.2d 451 (1980)

Tillman v. State, 271 Ark. 552, 609

S.W.2d 340 (1980)

17

18

17

Rules and Statutes

28 U.S.C. §1257 (a)

Ark. Stat. Ann. §§ 41-5104 and 75-901

Ark. R. Crim. P., 10, 12, 13.1, 13.2 and 14

Other Sources

Fourth and Fourteenth Amendments of United States

Constitution

; No.

IN THE

Supreme Court of the United States

October Term, 1988

RICHARD BOOTH ....... . . Petitioner

VS.

STATE OF ARKANSAS ....... Respondent

ON PETITION FOR WRIT OF CERTIORARI

TO THE ARKANSAS COURT OF APPEALS

PETITION FOR WRIT OF CERTIORARI

To the Honorable, the Chief Justice and the

Associate Justices of the Supreme Court of the United

States:

Petitioner, RicHarD Boorn, respectfully prays that a

writ of certiorari issue to review the judgment and

opinion of the Arkansas Court of Appeals entered in the

above entitled cause on January 11, 1989.

Opinion Below

The opinion of the Arkansas Court of Appeals is

attached as Appendix A and is reported at 26 Ark. App.

115 (1989). The unreported opinion issued by the Circuit

Court of Benton County, Arkansas, is attached as

Appendix B. The substituted opinion on denial of

rehearing of the Arkansas Court of Appeals is attached

as Appendix C and is reported at 26 Ark. App. 115

(1989).

Il.

Jurisdiction

The judgment of the Circuit Court of Benton

County was filed on February 24, 1987.

The substituted opinion on denial of rehearing of

the Arkansas Court of Appeals was filed on January 11,

1989. The jurisdiction of this Court is invoked pursuant

to 28 U.S.C. §1257 (a).

Ill.

Constitutional Provisions Involved

A. The Fourth Amendment of the United States

PETITION FOR CERTIORARI 2

Constitution provides:

AMENDMENT IV—The right of the people to

be secure in their persons, houses, papers, and

effects, against unreasonable searches and

seizures, Shall not be violated, and no Warrants

shall issue, but upon probable cause, supported

by Oath or affirmation, and particularly

describing the place to be searched, and the

persons or things to be seized.

The Fourteenth Amendment of the United Staies

Constitution provides:

AMENDMENT XIV-—Section 1. All persons

born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens

of the United States and of the State wherein

they reside. No State shall make or cnforce any

law which shall abridge the privileges or

immunities of citizens of the United States; nor

shall any State deprive any person of life,

liberty, or property, without due process of law;

nor deny to any person within its jurisdiction

the equal protection of the laws.

PETITION FOR CERTIORARI 3

IV.

Statement of Facts

In the early morning hours of December 9, 1984,

Mark and Marcene Gilliland were killed in a hit and run

accident while they were traveling south on State

Highway 43 in Arkansas. Tire marks at the scene and

paint transfers on the Gilliland vehicle led investigating

officers to believe a northbound reddish-orange semi

tractor-trailer was the second vehicle involved (Tr. 708-

709). The investigating officer estimated the time of the

accident as 1:15 a.m.

Witnesses placed defendant, RICHARD BoorTn, in the

area the night before the accident driving a semi tractor-

trailer, reddish-orange in color and leaving for Kansas

between 12:50 and 1:30.a.m. (Tr. 539; 604; 619-620; 721).

Arkansas authorities asked Kansas authorities to

locate Richard Booth to see if his vehicle evidenced

damage consistent with their findings (Tr. 123). Kansas

authorities located Mr. Booth’s vehicle and seized it

without a warrant (Tr. 126). Arkansas officials searched

the vehicle twice and Kansas authorities searched it once

while it was impounded without a search warrant ever

being issued (Tr. 143; 147; 148). A seizure warrant was

‘ssued after first search had already taken piace (Tr. 145-

146).

Defendant was charged with two counts of

PETITION FOR CERTIORARI 4

Manslaughter and one count of Leaving the Scene of an

Accident Involving Death or Physical Injury in violation

of Ark. Stats. Ann. Sec. 41-5104 and 75-901 (Tr. 5; 69).

Defendant moved to suppress all evidence and

testimony resulting from the warrantless seizure and

searches of defendant’s vehicles arguing that his Fourth

and Fourteenth Amendment rights had been violated.

(Tr. 192, 15-21). Defendant’s motion to suppress was

overruled by the trial court which found exigent

circumstances justified the warrantless searches. (Tr. 22-

23 and Appendix B).

Defendant was tried to a jury, found guilty on all

counts, and sentenced to ten years imprisonment and

Ten Thousand Dollars fine on each Manslaughter count

and to six years imprisonment and a Ten Thousand

Dollar fine on the Leaving the Scene of an Accident

Involving Death count. (Tr. 56).

Petitioner challenged the trial court’s denial of his

motion to suppress on appeal to the Arkansas Court of

Appeals, citing the failure to suppress as a point relied

upon for reversal of the trial court, as follows:

Be

THE TRIAL COURT ERRED IN DENYING

DEFENDANT’S MOTION TO SUPPRESS AND

OBJECTIONS TO INTRODUCTION OF EVIDENCE

TAKEN FROM DEFENDANT’S VEHICLES WITHOUT

PETITION FOR CERTIORARI 5

A VALID SEARCH WARRANT, WITHOUT REASON-

ABLE CAUSE AND ABSENT EXIGENT CIRCUM-

STANCES.

(Appellant’s Brief pp. 4, 171)

The Arkansas Court of Appeals affirmed the trial

court’s ruling, in a case of first impression in Arkansas,

by extending the “instrumentality of a crime” exception

to warrant requirements to petitioner's motor vehicle

(Appendix C).

PETITION FOR CERTIORARI 6

We

REASONS FOR GRANTING THE WRIT

A. THIS CASE PROVIDES THIS COURT WITH AN

OPPORTUNITY TO DELINEATE THE BOUNDARIES

OF THE “INSTRUMENTALITY OF A CRIME”

4 EXCEPTION TO THE WARRANT REQUIREMENT

FOR SEARCHING MOTOR VEHICLES ABSENT

EXIGENT CIRCUMSTANCES OR SEARCH INCI-

DENT TO AN ARREST.

The Arkansas Court of Appeals in this case has

impermissibly abrogated the warrant requirement for

search of an impounded vehicle by extending the

“instrumentality of a crime” exception to motor vehicles

despite the absence of a search incident to an arrest or

exigent circumstances.

In this case of first impression in the State of

Arkansas, the Arkansas Court of Appeals applied the

“instrumentality” exception to the warrant requirement

to the warrantless search of a motor vehicle, thus

abrogating the well established rule requiring both

probable cause and exigent circumstances to justify the

warrantless search of an automobile which has in the

past been consistently followed by the United States

Supreme Court and the Arkansas appellate courts. See,

e.g., Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975

(1970); Tillman v. State, 271 Ark. 552, 604 S.W.2d (1980);

PETITION FOR CERTIORARI 7

Freeman v. State, 258 Ark. 617, 527 S.W.2d 909 (1975).

In so ruling, this Arkansas Court of Appeals

incorrectly applied recent state court opinions extending

the exception to motor vehicles since appellant was not

arrested prior to or contemporaneously with seizure of

his vehicle as would be required by the cases relied upon

in the Court’s ruling, and also incorrectly stated the

propriety of a warrantless search where the vehicle is the

evidence or instrumentality of a crime is implicit in

several United States Supreme Court decisions.

In order to uphold the warrantless searches of

appellant’s vehicles in this case, the Arkansas Court of

Appeals relied upon the “instrumentality” exception to

the search warrant requirement which was recently

extended to some vehicle searches in People v. Griffin, —

Cal.3d —, 761 P.2d 103, 25 Cal. Rptr. 643 (1988).

In so ruling this Court erroneously overlooked the

significance of the fact that appellant was not arrested on

the charges in this case until December 26, 1984, the

information having been filed in Arkansas on December

20, 1984 (Tr. 5; Appendix i), even though his vehicle was

seized without a warrant on December 9, 1984, some

seventeen days before defendant was arrested and eleven

days before he was charged with any crime, and searched

repeatedly without a warrant prior to any charge being

filed.

PETITION FOR CERTIORARI 8

This error is of critical importance because in

Griffin, and in the cases cited on this issue therein, the

Court noted that the vehicles at issue were seized

incidental to a lawful arrest of the defendant as evidence

of the alleged crime, and later searched. Indeed, it was

such a seizure incident to a lawful arrest upon which the

Court relied in Griffin and in People v. Teale, 70 Cal.2d

497, 75 Cal. Rptr. 172, 450 P.2d 564 (1969), also cited by

the Arkansas Court of Appeals, in ruling that no search

had, in fact, occurred, since the vehicle was itself,

evidence, subject to seizure incident to an arrest, Griffin,

761 P.2d at 110.

In the present case, no seizure incident to a lawful

arrest occurred. Accordingly, the cases relied upon by

the Arkansas Court of Appeals have no application to

the present case. The United States Supreme Court and

Arkansas cases requiring both probable cause and

exigent circumstance to justify a warrantless search of a

motor vehicle should have been applied to the present

facts.

The Arkansas Court of Appeals also misstated the

law with regard to motor vehicle search warrant

requirements, relying on the reasoning in Griffin that the

propriety of a warrantless search where the vehicle is the

evidence or instrumentality of a crime is implicit in

several United States Supreme Court decisions including

Cardwell v. Lewis, 417 U.S. 583 (1974); Coolidge v. New

Hampshire, 403 U.S. 443 (1971); Cooper v. California, 386

PETITION FOR CERTIORARI 9

U.S. 58 (1967), and Carroll v. United States, 267 U.S. 132

(1925).

Contrary to this Court’s assertion, all of these cases

recognize and restate the requirement of both probable

cause and exigent circumstances before a warrantless

search of a vehicle will withstand constitutional attack

under the Fourth and Fourteenth Amendments.

Indeed, the trial court’s ruling in the present case

recognized the requirements of these cases and found,

unlike the Arkansas Court of Appeals, that exigent

circumstances existed in the present case to justify the

warrantless searches of appellant’s vehicle, specifically

relying upon Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct.

2464 (1974), in support of its denial of appellant's

motion to suppress (Tr. 23).

Application of the “instrumentality” exception to

the warrant requirement for search of appellant’s vehicle

flies in the face of the United States Supreme Court’s

constant and continued recognition that a

constitutionally protected expectation of privacy in a

vehicle exists sufficient to invoke the warrant

requirement even when, as in the present case, a vehicle

is suspected of itself being evidence of a crime and is

impounded. Cardwell v. Lewis, supra at 417 U.S. 594,

citing Chambers, supra, 399 USS. at 52.

The overextension of the “instrumentality”

PETITION FOR CERTIORARI 10

exception to the warrant requirement for the search of

impounded motor vehicles in Griffin and in the present

case eviscerates the long-standing Fourth and

Fourteenth Amendment warrant requirements

previously set out by this Court and should be reviewed

by this Court upon grant of petitioner’s petition for writ

of certiorari.

B. EVIDENCE TAKEN FROM DEFENDANT’S

VEHICLES WITHOUT A VALID SEARCH WARRANT

AND ABSENT EXIGENT CIRCUMSTANCES

SHOULD HAVE BEEN SUPPRESSED.

At the pretrial suppression hearing and at the trial

of this case, pursuant to the Fourth and Fourteenth

Amendments to the United States Constitution,

defendant sought to suppress and have excluded from

evidence all photographs, paint and glass samples, test

results and testimony resulting from seizure and four

searches of defendant’s vehicles conducted by Arkansas

and Kansas law enforcement officials.

The trial court overruled defendant’s motion to

suppress stating that the exigency exception to the search

warrant applied to the three latter searches, and that the

plain view exception applied to the first search, citing

Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464 (1974) (Tr.

23). Defendant’s objections to introduction of evidence

based upon the search and seizure violations presented

at the suppression hearing were likewise overruled

PETITION FOR CERTIORARI 1]

during the course of defendant's trial.

The requirements that the state obtain a specific

search warrant prior to searching a vehicle and the

contents of the warrant are set out in Arkansas Rules of

Criminal Procedure 10, 12 and 14. One seizure and four

separate searches of Mr. Booth’s truck and trailer

occurred in the present case. Each search will be

discussed separately with regard to the applicable rules

and case law.

At the suppression hearing, Trooper Boring and

Sheriff Ron Moore, Allen County, Kansas, testified that

defendant’s truck and trailer were impounded on

December 9, 1984, following their viewing of the vehicles

allegedly conducted pursuant to the consent of

defendant (Tr. 124-126; 141-142). No warrant was

obtained for the seizure of defendant’s vehicles prior to

this impoundment and the state’s witnesses did not

contend that defendant consented to the impoundment.

From December 9, 1984, through December 21,

1984, it is undisputed that defendant’s vehicles remained

continuously in the sole and exclusive custody of Kansas

police officials (Tr. 142, 148). Special procedures for

locking the impound lot at all times were instituted for

the duration of the impoundment of Mr. Booth’s

vehicles (Tr. 142).

On December 11, 1984, commencing at 3:40 and

PETITION FOR CERTIORARI 12

concluding about an hour later, a warrantless search was

conducted by Officer Fogley of the Arkansas State Police

(Tr. 165). Trooper Fogley testified he did not obtain a

warrant for his search nor obtain the consent of

defendant (Tr. 165). Glass samples referred to in the

report of Mr. Steve Cox, Arkansas Crime Lab, were

taken from the bed of the trailer and numerous

photographs were taken by Trooper Fogley during this

search (Tr. 165-166). It is not contended that this search

was made pursuant to an arrest and Trooper Fogley

testified this was not an inventory or safekeeping search

pursuant to Rule 12(6)(b), nor was there any exigency

such as those enumerated in Rule 14.1 preventing him

from obtaining a warrant prior to his search (Tr. 166).

On December 11, 1984, at approximately 5:40 p.m.,

a warrant was issued to Sheriff Moore directing him to

search the fenced lot of the Kansas Department of

Transportation and seize defendant’s tractor and trailer

(Def. Ex. 1) (Tr. 100-101, 145). The tractor and trailer

were already impounded on the lot of the Kansas

Department of Transportation at the time this warrant

was issued (Tr. 143-144). Sheriff Moore testified he

sought the warrant because defendant’s attorney had

requested return of the vehicle and said he would file a

civil suit for its return and Sheriff Moore wanted to

ensure that he could continue to hold the vehicle until it

could be delivered to Arkansas authorities (Tr. 144-415).

Sheriff Moore’s purpose in obtaining this warrant is also

set out in his affidavit in support of issuance of the

PETITION FOR CERTIORARI 13

warrant. (Defendant’s Exhibit 1, page 2) (Tr. 100-101).

Sheriff Moore testified that had he wanted

permission to search the vehicle it would be his normal

practice to set out with particularity the items sought for.

This was not done because he sought and obtained only

the authority to continue to hold the vehicles pending

resolution of defendant’s action to obtain their release

(Tr. 155-156).

On December 21, 1984, during a morning hearing

on defendant’s petition for release of his vehicles, Sheriff

Moore was advised by the County Attorney that things

were not going well and it looked like the vehicles were

going to be released. Prior to 12:00 a.m. on December

21, 1984, Sheriff Moore conducted a search of

defendant’s vehicles and obtained paint and glass

samples listed in Mr. Cox’s report from the State Crime

Lab and in Sheriff Moore’s own evidence custody receipt

(Defendant’s Exhibit 4, Tr. 156). Sheriff Moore obtained

no warrant to search for particular items of evidence in

or on defendant’s vehicles and did not obtain the consent

of defendant for the search. He further testified his

search was not intended as one to inventory the contents

of the vehicle but was, rather, an investigative search. He

further stated there was no reason why he coul. 10t have

obtained a warrant to search the vehicles during the

twelve days they had been impounded (Tr. 155-157).

Subsequent to Sheriff Moore’s search of the vehicle

PETITION FOR CERTIORARI 14

on December 21, 1984, Sheriff Moore returned to his

office and found an order from the District Court of

Allen County, Kansas, directing him to relcase

defendant’s vehicles (Tr. 157). In spite of this order, filed

at approximately 11:30, according to Sheriff Moore, he

phoned his officer in charge of the impoundment lot and

directed him not to release the vehicles to defendant and

to continue to hold them until Arkansas Crime Lab

personnel arrived and the County Attorney could

prepare and file a notice of appeal (Tr. 160-162). Sheriff

Moore testified this appeal was dismissed the next day

after the fourth search of the vehicles conducted by

Trooper Straub and the Arkansas Crime Lab on the

evening of December 21, 1984. Mr. Booth’s vehicles

were returned to him as previously ordered (Tr. 149).

At about 7:10 p.m. on December 21, 1984,

according to Sheriff Moore’s testimony and his evidence

custody receipt, a fourth search of defendant’s vehicles

was conducted by Arkansas authorities which lasted well

into the night. The items seized during this search are set

out in the report of Mr. Cox, State Crime Lab (Tr. 172-

174), including paint samples taken from underneath the

fenderwell and framerail of Mr. Booth’s trailer and from

the top of the trailer bed, and including and check of the

brake system while operating the truck (Tr. 88-89; 175).

Numerous photographs were taken by Mr. Page, also of

the State Crime Lab, including the interior of the cab of

the truck (Tr. 88; 1191-1192).

PETITION FOR CERTIORARI 15

According to the testimony of Officer Straub and

Mr. Cox, no search warrant was obtained prior to this

search nor was the consent of the defendant obtained

(Tr. 117; 176). Even though Officer Straub purports to

have been acting pursuant to the seizure warrant

obtained on December 11, 1984, by Sheriff Moore, he

concedes that upon his arrival he was made aware by

Sheriff Moore that a search of the vehicles had already

been conducted, the product of which was delivered to

Officer Straub at 7:10 (Tr. 107; 115-116-117). Officer

Straub did not testify to any emergency preventing him

from obtaining a warrant for his search, stating he relied

on the December 11, 1984, warrant. This fourth search of

the vehicles was also clearly investigative rather than

custodial and-the state does not contend otherwise.

The warrant issued to Sheriff Moore was never

intended by him to authorize search of defendant's

vehicles and thus sets out no particular items to be

searched for within or upon defendant’s vehicles. To the

extent this warrant was relied upon, if at all, by Officer

Straub as a search warrant, it is on the face invalid for

this absence of particularity as prohibited by Rules 13.1

and 13.2, and also would not support a second search by

Arkansas authorities after it had already been executed

by Sheriff Moore. Sheriff Moore clearly did not rely on

this warrant for his search since he personally obtained

the warrant for the sole purpose of holding the vehicles

until they could be turned over to Arkansas authorities.

PETITION FOR CERTIORARI 16

Until the Court of Appeals ruling which is the

subject of this petition, Arkansas courts have repeatedly

and uniformly held that officers must obtain a warrant

prior to searching vehicles within the exclusive control of

the police, in the absence of exigent circumstances or

consent. Scisney v. State, 270 Ark. 610, 605 S.W.2d 451

(1980); Burkett v. State, 271 Ark. 150, 607 S.W.2d 399

(1980). This requirement was more recently reaffirmed

by implication in Tillman v. State, 271 Ark. 552, 609

S.W.2d 340 (1980), permitting an immediate search of a

vehicle on a public highway if the car’s contents may

never be found again rather than seizing the car and

obtaining a warrant, since either course is reasonable. In

the present case, defendant’s vehicles were already

impounded at the time of the last three searches and,

accordingly, the exigency exception set out in Tillman is

inapplicable. Only one reasonable course of action

remained, to obtain a search warrant, which was never

obtained in this case.

The court in Tillman pointed out that in order to

justify a warrantless search of an automobile, both

probable cause for the search and exigent circumstances

must be present, citing Chambers v. Maroney, 399 US.

42, 90 S.Ct. 1975 (1970), and Freeman v. State, 258 Ark.

617, 527 S.W.2d 909 (1975). Neither is present in the

case at bar.

In Freeman, the court held that although police had

probable cause for seizure of defendant’s automobile,

PETITION FOR CERTIORARI 17

the evidence indicated no exigent circumstances such as

to excuse the requirement that a warrant be obtained

before the vehicle was seized. The court ruled that use of

photographs taken after the warrantless seizure was

therefore improper. In so doing the court noted the

vehicle, as in the present case, was not seized to protect

the public safety or safeguard the owner’s property, was

not being used for any illegal purpose or for escape, and

that the possible connection of the vehicle to the crime

was known to the officers when they initially saw it.

As discussed in both Tillman and Freeman,

Chambers requires both probable cause and exigent

circumstances to justify the warrantless search of an

automobile. The heavy reliance placed upon Chambers

in Arkansas automobile search and seizure cases is

particularly important in the present case because

Cardwell v. Lewis, supra, relied upon by the trial court in

support of its order denying defendant’s motion to

suppress, likewise relies on the Chambers decision and

quotes that portion of Chambers requiring a finding of

both probable cause and exigent circumstances before a

warrantless search of a vehicle will be found reasonable,

as follows:

For constitutional purposes, we see no

difference between on the one hand seizing and

holding a car before presenting the probable

cause issue to a magistrate and on the other

hand carrying out an immediate search without

PETITION FOR CERTIORARI 18

a warrant. Given probable cause to search,

either course is reasonable under the Fourth

Amendment.

... The probable-cause factor still obtained at

the station house and so did the mobility of the

car unless the Fourth Amendment permits a

warrantless seizure of the car and the denial of

its use to anyone until a warrant is secured. In

that event there is little to choose in terms of

practical consequences between an immediate

search without a warrant and the car’s

immobilization until a warrant is obtained.

Cardwell, supra, at 417 U.S. 594, citing

Chambers, 399 U.S. at 52.

The trial court’s reliance upon Cardwell, supra, in

support of its denial of defendant’s motion to suppress

and objections to admission of evidence and testimony,

is also misplaced because that case is distinguishable on

its facts.

The court in Cardwell ruled evidence of paint

scrapings from a car fender admissible, noting that an

exigency existed even while the vehicle was in a police

parking lot because someone might be instructed to

remove the car from the lot and any evidence would be

lost. In the present case no such exigency existed.

Defendant’s truck and trailer were not only taken to a

police parking lot but were indeed impounded in a

PETITION FOR CERTIORARI 19

fenced detention area. Special procedures to keep the

enclosure locked and monitored at all times were

initiated immediately upon arrival of the Booth vehicles

at the impound facility. In addition, all of the witnesses

at the suppression hearing testified that there were no

exigent circumstances preventing them, had they so

desired, from obtaining a warrant prior to any of the the

searches of the vehicle. Indeed, the vehicle was in police

custody for twelve days, with no search warrant ever

being sought by either Kansas or Arkansas authorities

despite repeated searches by both. No exigency

whatsoever exists or is even asserted in the present case

to justify the failure of all authorities involved in the

search of defendant’s vehicles to obtain a warrant and to

specify what they were searching for prior to the search.

Cardwell is also distinguishable from the present

case because in Cardwell, only visible paint scrapings

from the rear fender were taken during the search and

no search of the interior of the car occurred. But in the

present case, a much more extensive search was

undertaken, including taking paint scrapings from the

undercarriage and underneath the framerail of the

trailer plus glass samples photographed and taken from a

position on top of the trailer bed. Further, the interior of

the cab was searched, the vehicles were driven and the

brakes tested during this process. Evidence from inside

the cab included testimony that defendant had a C.B.

radio therein (State’s Exhibit 58, Tr. 1191-1192). In

addition, photographs of the interior and testimony were

PETITION FOR CERTIORARI 20

introduced at trial to bolster the State’s argument that

defendant left Mick’s Place in Oklahoma without giving

his brakes time to fully pressurize, thus causing a

screeching sound audible to witnesses within the bar and

upon the testimony of the time of defendant’s departure

was based. Questioning by the State of its witness,

Trooper Westgate, which directly addressed the

functioning of the interior of defendant’s vehicle and

operable condition of the brakes was phrased in terms of

the possibility of the driver being drunk and reaching

over and by mistake or a reason such as being drunk,

hitting the wrong brake button inside the cab and

dragging the trailer (Tr. 1193).

The trial court’s argument, citing Cardwell, that the

reasonableness of seizing vehicles under exigent

circumstances is not foreclosed if a warrant was not

obtained at the first practicable moment must fail

because no warrant to search defendant’s vehicle was

ever Obtained by any of the officers involved in the

searches and no exigency was ever suggested which

prevented producing one during the twelve days the

vehicles were in the exclusive custody of the police.

The trial court quotes Cardwell for the proposition

that an exigency may arise at any time and the fact that

police might have obtained a warrant earlier does not

negate the possibility of a current situation’s

necessitating prompt police action, noting defendant’s

attempt to regain his vehicle created an exigency

PETITION FOR CERTIORARI 21

sufficient to justify the warrantless searches. Certainly

this argument has no application to the search by

Sergeant Fogley on December 9, 1984, before defendant

had even filed a suit for return of his vehicle. Any

application of this argument to the searches on

December 21st would require a holding by this Court

that State authorities are entitled to avoid search

warrant requirements when the case is ruled upon the

basis of an “exigency” of their own creation. The trial

court’s suggestion that defendant’s actions to regain

custody of his own vehicle created an exigency justifying

a warrantless search, in spite of intentional police

inaction while a suit for return of the vehicle was

pending, creates a catch-22 situation in which any and

every vehicle could be searched without a warrant so

long as the police maintained custody of the vehicle until

the owner asked for it back. Surely the Fourth and

Fourteenth Amendments’ protection against

unreasonable searches and seizures and the long

established exigency requirement cannot be eliminated

so easily, particularly where, as here, the so-called

exigency was avoided by the authorities who ignored the

court order to release the vehicles until they were

satisfied all desired warrantless searches had been

conducted.

The plain view doctrine has no application in the

present case since the initial intrusion was not lawful, the

glass and paint samples were not discovered nor taken

inadvertently and the incriminating nature of the

PETITION FOR CERTIORARI 22

evidence, if any, was not immediately apparent, thus

giving rise to subsequent testing by the State Crime Lab.

McQueen v. State, 283 Ark. 232, 675 S.W.2d 358 (1984).

The three warrantless searches of defendant’s

vehicles conducted by Arkansas and Kansas authorities

while his vehicles were impounded clearly constitute a

substantial and unreasonable violation of defendant’s

Fourth and Fourteenth Amendment rights to be free of

unreasonable searches and seizures. There was no proof

that the evidence obtained during these searches would

have been obtained but for the warrantless searches and

defendant was severely prejudiced by such evidence in

his ability to defend himself in the trial of this case.

Defendant’s motion to suppress all evidence seized or

resulting from these warrantless searches of defendant’s

vehicles should have been granted, and the trial court’s

denial of this motion should have been reversed by the

Arkansas Court of Appeals.

PETITION FOR CERTIORARI 23

CONCLUSION

This case presents an important constitutional issue

regarding the boundaries of the “instrumentality of a

crime” exception to search warrant requirements for

motor vehicles. This Court has an opportunity to clarify

the limits and boundaries of the “instrumentality”

exception with regard to motor vehicles where the search

is not conducted incident to an arrest, and no exigent

circumstances exist. This case has established a

dangerous precedent which, if not clarified, other lower

courts might unwisely choose to adopt.

Respectfully submitted,

RICHARD Booth, Petitioner

By PRisciLLA KAREN PoPE

P. O. Box 3423

Fayetteville, Arkansas 72702

(501) 443-3985

Attorney for Petitioner

March 6, 1989

PETITION FOR CERTIORARI 24

PROOF OF SERVICE

PRISCILLA KAREN Pope, after being sworn, deposes and

says that pursuant to Rule 28.3 of this Court she served

all parties required to be served with the within PETITION

FOR WRIT OF CERTIORARI TO THE ARKANSAS COURT OF APPEALS

by enclosing three (3) copies thereof in an envelope, first

class postage prepaid, addressed to:

Mr. Steve Clark

Arkansas Attorney General

201 East Markham

Heritage West Building

Little Rock, Arkansas 72201

and depositing same in the U.S. Mail at Fayetteville,

Arkansas, on 10 March 1989.

PRISCILLA KAREN Pope, Affiant

P. O. Box 3423

Fayetteville, AR 72702

(501) 443-3985

Subscribed and Sworn to before

me this 7th day of March, 1989.

PATRICIA LINTHICUM

Notary Public in and for

Washington County, State of

Arkansas.

PETITION FOR CERTIORARI! 25