Opposition — M. Morrin & Son Co. v. Burgess Construction Co.

In The

Supreme Court of the United States

October Term, 1975

HERBERT W. CABBLER.

Petitioner.

Vv.

SUPERINTENDENT. Vircinia State PenrrentTiary.

Respondent.

BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

ANDREW P. MILLER

Attorney General of Virginia

GiLBert W. Hairu

Assistant Attorney General

Supreme Ccourt Building

Richmond, Virginia 23219

*

.

” >» '

a a ree anes

TABLE OF CONTENTS

Page

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Sratamentr. Ov Ter Case ............;............ haem PERS Tea ae a nN 2

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TABLE OF CASES

Barker v. Johnson, 454 F.2d 981 (6th Cir, 1973) 2000000. 12

Boulet v. State, 17 Ariz.App. 64, 495 P.2d 504 (1973) 00... 15

Cabbier v. Commonwealth, 212 Va. 520, 184 S.E.2d 781 (1971) ... 2

Cady v. Dombrowski, 413 U.S. 433, 37 L.Ed.2d 706, 93 Sup. Ct.

BE, CUPID “Gintcsenicndinadiniidectibidshistidiandinidinetoien abideigedidaadl 9, 11, 12, 14

Camara v. Municipal Couri, 387 U.S. 523, 18 L.Ed.2d 930, 87

Sup.Ct. 1727 (1967) ooo... ccc ecccceeeenne at aeadaaaiaeichsidaeia nae 10

Cotton v. United States, 371 F.2d 385 (9th Cir. 1967) 2000000... 12, 13

Denson v. State, 128 Ga.App. 456, 197 S.E.2d 156 (1973) 00000... 15

Godbee v. State, 224 So.2d 441 (Fla. 1969) 0.0.0... cece ceeceeeeee 15

Harris v. United States, 390 U.S. 234, 19 L.Ed.2d 1067, 88

8 8, Ne Pe

Heffley v. State, 423 P.2d 666 (Nev. 1967) 22000000 13, 15

Jackson v. State, 243 So.2d 396 (Miss. 1971) 200020... 15

Kimbrough v. Beto, 412 F.2d 981 (5th Cir. 1969) 202... . 12

Movzzetti v. Superior Court, 94 Cal. Rptr. 412, 484 P.2d 84 (1971) . 15

People v. Norris, 68 Cal.Rptr. 582 (1968) 2.0... pelicans Oo

Page

People v. Sullivan, 29 N.Y.2d 69, 272 N.E.2d 464 (1971) .............. 14

People v. Trusty, 516 P.2d 423 (Colo. 1973) ....... eeiinideata sssiteishecinlcin 15

People v. Willis, 46 Mich.App. 436, 208 N.W.2d 204 (1973) ........ 15

Plitko v. State, 11 Md.App. 35, 272 A.2d 669 (1971) .......... shanapoes 14

St. Clair v, State, | Md. App. 605, 232 A.2d 565 (1967) ................ 1+

State v. Criscola, 21 Utah 2d 272. 444 P.2d 517 (1968) ....... dees 15

State v. Dombrowski, 171 N.W.2d 349 | Wisc. 1969) ....0000.00........ 8, 15

Sente w. Ghevtenms, SHG A.B TP) CEU, FEB) ovescvnccreccccessceisctsancnstnnionsene 15

State v. Hock, 54 N.J. 526, 257 A.2d 699 (1969)... ee. 14

State v. Montague, 73 Wash.2d 381, 438 P.2d 571 (1968) _......... 15

State v. Wallen, 185 Neb. 44, 173 N.W.2d 372 (1970) _....... 8, 13, 15

United States v. Boyd, 436 F.2d 1203 (5th Cir. 1971) —.0000000.... 12, 13

United States v. Kellehar, +70 F.2d 176 (Sth Cir. 1972) 00000000... 12

United States v. Lawson, 487 F.2d 468 (8th Cir. 1973) 000.000... 14

United States v. Lipscomb, 435 F.2d 795 (Sth Cir. 1970) ........12, 13

United States v. Mitchell, 458 F.2d 960 (9th Cir. 1972) .0000000....... 12

United States v. Pennington, 441 F.2d 249 (5th Cir. 1971) —......... 12

In The

Supreme Court of the United States

October Term, 1975

No. 75-1463

HERBERT W. CABBLER,

Petitioner,

V.

SUPERINTENDENT, Vircinia State PENITENTIARY,

Respondent.

BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

To the Honorable Chief Justice and Associate Justices of the

Supreme Court of the United Staies:

The respondent, the Superintendent of the Virginia State

Penitentiary, an employee of the Commonwealth of Vir-

ginia, respectfully submits the following brief in opposition

to the granting of a writ of certiorari in the above matter.

The parties will be referred to herein by their respective

positions in the court below, i.e., petitioner and respondent,

or by their respective positions in the state trial court, i.e.,

defendant and Commonwealth.

QUESTION PRESENTED

Did the United States Court of Appeals for the Fourth

Circuit commit error in denying and dismissing a petition

2

for a writ of habeas corpus on the ground that the seizure

of evidence from the trunk of petitioner’s vehicle during an

inventory of the contents of such vehicle while impounded

by the Roanoke, Virginia, police department was not a

violation of petitioner’s Fourth Amendment rights?

STATEMENT OF THE CASE

The petitioner was convicted in the Circuit Court of the

City of Roanoke, Virginia, on February 21, 1970, of three

counts of grand larceny and two counts of petty larceny,

pursuant to trial by jury, and was sentenced to a total of

eleven years in the Virginia State Penitentiary. Prior to peti-

tioner’s trial, he moved to suppress certain evidence ob-

tained by officers of the Roanoke City Police Department

from the trunk of his automobile, which items of evidence

were eventually used in petitioner’s trials and were the

basis for his conviction. A hearing was held on said motion

to suppress and the motion to suppress was overruled. All

of the evidence relating to whether or not said evidence

was obtained as the result of an illegal search and seizure

was developed at the hearing on the motion to suppress.

Following petitioner’s convictions, he appealed to the Vir-

ginia Supreme Court by way of direct appeal, assigning as

error, along with other matters, the admission in evidence

of the items found in the trunk of his car on the basis of

an allegation of illegal search and seizure. Petitioner’s con-

viction was affirmed, and the admission into evidence of the

items removed from the trunk of petitioner’s car was found

not to be an illegal search and seizure by the Virginia

Supreme Court on direct appeal. Cabbler v. Commonwealth,

212 Va. 520, 184 S.E.2d 781 (1971).

Petitioner then appealed to this Court by way of a peti-

tion for a writ of certiorari, and said petition for a writ of

3

certiorari was denied by an order entered April 17, 1972,

405 U.S. 1073 (1972).

Petitioner then filed a petition for a writ of habeas corpus

in the United States District Court, Eastern District of Vir-

ginia, Richmond Diwvisiom, alleging that the goods taken

from the trunk of his car and admitted into evidence at his

state court trial were takem pursuant to an illegal search

and seizure and, therefore, were improperly admitted. Re-

spondent filed a responsive pleading asserting that said

allegation was without merit and that the stolen property

used in petitioner’s trial was not obtained as the result of

an illegal search and seizere, but was obtained as a matter

of proper procedure by the Roanoke Police Department

as a result of the inventory of the petitioner’s impounded

automobile.

The District Court granted the petition for a writ of

habeas corpus by a memorandum opinion and order dated

April 23, 1974, 374 F.Supp. 696 (E.D. Va. 1974), on the

basis that said search and seizure was in violation of peti-

tioner’s constitutional rights under the Fourth Amendment

to the United States Constitution. Upon appeal by the

respondent, the United States Court ef Appeals for the

Fourth Circuit reversed the district court. It is from this

decision that the petitioner is applying for cer®rari.

As pointed out above, all of the facts relating to the

seizure of certain items from the teunk of petitiener’s auto-

mobile, which items were subsequently determined to be

stolen and were used to obtain the convictions of the peti-

tioner, were presented to the state trial court through a

hearing on a motior to suppress said evidence.

Those facts showed that in the early morning on Sep-

tember 2, 1969, Roanoke, Virgimia, City Police officers wene

looking for the petitioner because they knew that the victim

of an alleged felonious shooting imto am occupied building

4

was on his way to swear out a warrant for the petitioner.

The petitioner’s car was spotted by police officers in down-

town Roanoke and was followed to the Community Hospital

of Roanoke Valley, where the petitioner had parked his car

in a “No Parking” zone and in a position which partially

blocked the driveway to the emergency room of said hospital

and the entranceway used by emergency vehicles attempting

to get to the emergency room entrance. It was agreed that

all of the area in question where the petitioner’s vehicle

was parked is private property in which parking and traffic

regulations are made by the hospital management.

The petitioner and a passenger in the car alighted and

went into the emergency room. Police Sergeant R. C.

Reynolds observed a pistol and boxes of ammunition in the

back seat and back floor board of the car and stationed a

police officer to guard the car while, he, Sergeant Reynolds,

went inside the hospital. After going intu the hospital,

Sergeant Reynolds called the magistrate on duty and de-

termined that a felony warrant had been issued for the

petitioner. He then proceeded to arrest the petitioner in the

hospital emergency room where the passenger, who had

gotten out of the car with the petitioner, was undergoing

medical treatment. As the petitioner was arrested, he was

advised of his Constitutional rights and was handcuffed and

was taken out of the hospital emergency room to a nearby

police car.

It was starting to rain as the petitioner and Sergeant

Reynolds left the emergency room, and the petitioner asked

Sergeant Reynolds to roll up his car window, indicating

the 1967 Cadillac in which the pistol and ammunition had

already been seen. The car keys were removed from the

defendant’s pocket at this time, and then Sergeant Reynolds

took the petitioner to the police car and proceeded to roll

up the car windows. It was necessary to get the key from

5

the petitioner, because the windows were of the push button

type and the ignition had to be turned on in order to roll

up the windows.

Sergeant Reynolds went to the petitioner’s car, closed the

windows, removed the pistol and ammunition, and sta-

tioned another officer to guard the car until he could re-

turn. At this time Sergeant Reynolds advised the petitioner

that his car would be taken to the city garage and stored

there for him until he was able to post bond on the felony

charge for which he was being arrested. Sergeant Reynolds

then drove the petitioner to the municipal building to be

“booked” and turned him over to other police officers.

Sergeant Reynolds was driven back to the Community

Hospital where he got into the petitioner’s Cadillac auto-

mobile and drove it to police headquarters.

While parked outside the Roanoke Municipal Building,

Sergeant Reynolds opened the trunk of the petitioner’s auto-

mobile with the keys he had obtained from the petitioner.

His intention at that time was not to search for evidence of

any crime, but merely to remove any personal property or

other valuables from the car and to store them in the

Police Department property room, located in the main

Municipal Building. Upon seeing a large quantity of tloth-

ing and other personal items in the trunk of the car,

Sergeant Reynolds quickly concluded that the property

room in the main Municipal Building was too small for his

purposes, so he drove the car a block away to a point

beside the Municipal Building Annex in which the Police

Department’s larger, principal property room is located.

There, Sergeant Reynolds and several other officers sys-

tematically removed and tagged for identification the

numerous items of clothing and personal property which

constituted the contents of the trunk of the petitioner’s auto-

mobile. All of this property was guarded by a police officer

6

until the property officer arrived later that morning. It was

then stored in the main property room. Some of this prop-

erty, which was never claimed by the petitioner upon his

release from custody, turned out to have been stolen and

was introduced at the petitioner’s trial as evidence against

him.

Eachr of the officers who participated in the guarding and

inventorying of petitioner’s automobile testified at the hear-

ing on the motion to suppress. None of these officers testi-

fied that the purpose of the inventory was to “Search” for

evidence of any crime or to perform any function other

than finding, identifying, and storing the petitioner’s valu-

ables for safekeeping while he was in custody and while his

car was in the possession of the Police Department. None of

these officers heard the defendant protest the police officers

taking temporary custody of his vehicle or any offer by the

petitioner to have the car moved from its hazardous location

by any other means.

The evidence was uncontradicted that the inventory of

the petitioner’s automobile was conducted solely to safe-

guard the petitioner’s valuables and was conducted pursuant

to long-standing practices of the Roanoke Police Depart-

ment. Several officers testified as to the circumstances under

which it was their practice to take temporary custody of

property, such as vehicles belonging to arrested individuals,

and numerous illustrations were given. The evidence in this

regard was that whenever a person is arrested away from

his home under circumstances in which valuable personal

property will be left “stranded” as a result of the actions

of the police in making the arrest, and no other measures

to safeguard the valuables are apparently available, the

police will take into temporary protective custody such items

of personal property, including automobiles, and will store

them in an appropriate place, pending release of the ar-

7

rested individual from custody. Because of certain unfor-

tunate instances of theft in the past, the police officers had

been instructed not to surrender custody of automobiles so

impounded to personnel at the City Garage until an item-

ized list of the automobile’s contents had been made, and

such contents had been removed and stored for safekeeping

in one of the Police Department property rooms. The

original taking into custody of the arrested person’s prop-

erty does not turn on whether the property is located on

public or private property at the time of the arrest, so long

as the fact of the arrest itself would leave the property

unprotected if the police were not to assume custody of it.

In at least one instance in the past, the Police Department

had been subjected to civil suits upon claims for property

having disappeared during the time that an automobile was

in police custody, and the evidence was that the petitioner

himself had made such a claim prior to the actual initia-

tion of these criminal proceedings concerning this particular

impoundment of his automobile.

There was no evidence that the above-stated policy, which

had at least once in the past been reduced to writing and

promulgated by the Chief of Police, though such written

regulations could not be found, had been applied in this

or in any other case in a discriminatory manner, nor was

there evidence that the officers in the instant case were not

acting in a good faith effert to execute such policies. There

was no evidence that the arrest of the defendant was any

kind of a “sham” or pretext for “searching” his automobile,

or that even the initial taking of the car into custody was

done upon such pretext. Rather the impoundment of the

vehicle was for the stated purposes of eliminating the

emergency traffic hazard posed by the car in its location, as

it had been left parked by the petitioner, and for the pro-

8

tection of the petitioner’s own personal property from theft

by others.

LAW AND ARGUMENT

Initially, the respondent submits that the removal from

the petitioner’s automobile by the police of the items of

personal property was not a “search” in the Constitutional

sense, because the police were not looking for evidence of

any particular crime. A search, within the confines of the

Fourth Amendment, implies some exploratory investiga-

tion. A “search” in the Constitutional sense implies an in-

vasion and quest, a looking for or seeking out; prying into

hidden places for that which is concealed. There was no

“search” in the instant case, but only a taking of the articles

into protective custody. There is no search where the officers

are engaged in legal, non-search activity, and items are ob-

served in plain view. See People v. Norris, 68 Cal. Rptr.

582 (1968) ; State v. Dombrowski, 171 N.W.2d 349 (Wisc.

1969); State v. Wallen, 185 Neb. 44, 173 N.W.2d 372

(1970).

In the instant case the taking into custody of the peti-

tioner’s vehicle was in no way connected with his arrest for

a shooting incident, but was done in order to remove it from

obstructing the entrance to the hospital, and to protect it

while the defendant was in custody. It was done as a matter

of standard operating procedure of the Police Department,

and the police had no intention at any time of trying to use

the automobile or its contents as a part of any criminal

charges against the petitioner.

The same applies to the removal of the goods from the

trunk of the car and the placing of them in the police prop-

erty room. At no time during this procedure did the police

have any intention other than the protection of the peti-

_—_—>-

9

tioner’s property, and it was all done pursuant to longstand-

ing Police Department policy. Having lawfully taken charge

of the defendant’s automobile, it was incumbent upon the

police to ascertain its contents and to store them safely. To

protect themselves as well as the defendant, a reasonably

prudent officer could and should have made an itemized

list of all valuable personal property in the car.

It has been recognized by this Court that every physical

intrusion into a citizen’s property does not imply a “search”

of that property, if that is not the intent of the officer mak-

ing the entry. Harris v. United States, 390 U.S. 234, 19

L.Ed.2d 1067, 88 Sup.Ct. 992 (1968). In that case the

investigating officer discovered evidence against the accused

while opening the door of his car in order to protect the

car from the rain. While it was held that this was specifically

not a case involving the inventory of the contents of a ve-

hicle, it is still an extremely analogous case, because it

involves evidence obtained while attempting to protect the

property of an individual who is in custody, and not as a

part of any search. The intent in each situation is very im-

portant. As said by the Court in the Harris case:

“ . . the discovery of the card was not the result of a

search of the car, but of a measure taken to protect the

car while it was in police custody. Nothing in the Fourth

Amendment requires the police to obtain a warrant in

these narrow circumstances.”

It would appear clear that this language in Harris is still

viable and that the question is still open as to whether ac-

tivity of the pelice, such as in the instant case, is even a

“search” in the first place. See Cady v. Dombrowski, 413

US. 433, 37 L.Ed.2d 706, 93 Sup.Ct. 2523 (1973), footnote

at 413 US. 442.

Both the District Court and the Fourth Circuit in the

10

instant case recognized that this argument has some validity,

but did not rely on such for their respecive holdings for

differing reasons. In particular the Fourth Circuit implied

that it could have reversed the District Court on the basis

that this situation did not involve a Fourth Amendment

search, but it was not necessary to do so.

The petitioner attempts to reject this proposition, as did

the District Court, primarily on the authority of Camara v.

Municipal Court, 387 U.S. 523, 18 L.Ed.2d 930, 87 Sup.Ct.

1727 (1967), and its progeny. The respondent submits that

this reliance is misplaced, not only because the factual

situations are so entirely different, but furthermore because

the language in Harris referred to above is much closer to

the factual situation in the instant case than is the language

in Camara. This Court has consistently held that there are

situations which are, in fact, not searches in the Constitu-

tional sense, and the respondent submits that the instant

case is, in fact. one of those cases, and that the language of

Harris v. United States, supra, is determinative of that.

Assuming arguendo that the taking of the personal prop-

erty from the trunk of the petitioner’s car was a search, then

the question becomes one of whether the search conducted

in the instant case was reasonable. No attempt has ever

been made by the Commonwealth to justify this search on

the grounds of a search incident to an arrest or the grounds

of having probable cause therefor. ‘The Commonwealth has

consistently maintained that the taking of the personal

property from the petitioner’s automobile was pursuant to a

proper police procedure for inventorying the contents of

automobiles of persons taken into custody, and that such an

inventory search is reasonable and not a violation of peti-

tioner’s Fourth Amendment rights. This is, in effect, the

classic example of so-called “inventory searches.”

Respondent submits, as concluded by the Court of Ap-

11

peals, that the instant case is clearly controlled by the deci-

sions of this Court in Harris v. United States, supra and

Cady v. Dombrowski, supra. Although the language of the

opinion in Harris indicates that it is not to be construed as

a determination of the admissibility of evidence found as a

result of a search under such a Police Department regula-

tion, the respondent submits that from a practical and fac-

tual standpoint there is nothing to distinguish the instant

case from Harris v. United States. In both cases the ac-

tion taken by the police department was action taken

solely and totally for the purpose of protecting the prop-

erty of a person who was in custody and who was in-

capable of protecting his own property. The action taken by

the police in both cases was reasonable and was calculated

as to be appropriate action that would have been demanded

by the person in custody if the Police Department had not

done it. Once the Police Department was taking such pro-

tective action, the seizing of contraband or other items of

evidence was not an illegal search and seizure.

Even greater similarity can be found between the facts in

the instant case and the facts in Cady v. Dombrowski,

supra. In that case, the Court found two factual considera-

tions deserving of emphasis. The first was that the police had

exercised a form of custody or control over the defendant’s

vehicle for the purpose of safety and protection and, second-

ly, the opening of the trunk of that vehicle and the seizing

of items of personal property therein was standard pro-

cedure in the Police Department to protect the citizens and

the public. Both of these same factual considerations are

present in the instant case. In Harris the justification for the

initial intrusion into the vehicle was to safeguard the owner’s

property, and in Cady the justification for the intrusion into

the vehicle was concern for the safety of the general public.

In the instant case, the motivation on the part of the of-

12

ficers in taking an inventory of the contents of the trunk

of defendant’s vehicle was at least as viable and reasonable

a motivation as those. Respondent submits that the opinion

in Cady v. Dombrowski, supra, sufficiently shows that the

search of the petitioner’s trunk in the instant case was a

reasonable search and, therefore, not a violation of the

Fourth Amendment strictures on search and seizure.

Not only is the instant case controlled by Harris and

Cady v. Dombrowski, but it also is directly in line with other

decisions of federal courts upholding inventory searches as

reasonable where conducted for the two-fold purpose of

protecting the defendant’s property and safeguarding the

police from groundless claims for loss of possessions. United

States v. Kelehar, 470 F.2d 176 (5th Cir. 1972) ; Barker v.

Johnson, 484 F.2d 981 (6th Cir. 1973); United States v.

Mitchell, 458 F.2d 960 (9th Cir. 1972); United States v.

Pennington, 441 F.2d 249 (5th Cir. 1971); United States

v. Boyd, 436 F.2d 1203 (5th Cir. 1971); United States v.

Lipscomb, 435 F.2d 795 (Sth Cir. 1970); Kimbrough v.

Beto, 412 F.2d 981 (5th Cir. 1969); Cotton v. United

States, 371 F.2d 385 (9th Cir. 1967).

In Barker v. Johnson, supra, the defendant was arrested

and was in custody and his car was parked in front of the

police station. The car was opened by the police in order

“too inventory the valuables, to roll up the windows, and to

lock this car for the sole purpose of protecting the car and

its contents while the owner was in lawful custody.” The

court found that this was a proper police function under

Harris and that the contraband which was eventually seized

was in plain view once the officers were inside the auto-

mobile, a place where they had a right to be. Respondent

submits that the reasoning applied in that case is just as

applicable to the instant case.

13

The practice of protecting whatever valuables may be

in an impounded vehicle by storing them in the police sta-

tion is not only reasonable, but it is also in the public

interest where it is not used as a subterfuge to conduct a

search without a warrant. It is not unusual for items to

disappear from parked vehicles in spite of locked doors.

The Fourth Amendment does not proscribe all searches,

but only those that are unreasonable. When an inventory is

performed as a service to an individual, evidence of a crime

accidentally discovered need not be suppressed.

In at least two cases cited above, United States v. Lips-

comb, supra, and United States v. Boyd, supra, the Court

talks in terms of the police officers, in fact, owing a duty

to inventory the contents of impounded vehicles. These state-

ments are to the effect that the inventory is necessary to

protect the property of the person in custody and to safe-

guard the police from groundless claims for loss of posses-

sions. Once the car is taken to the police headquarters, the

police are under a duty to itemize the property contained

therein and store it for safekeeping. See also Cotton v.

United States, supra; Heffley v. State, 423 P.2d 666 (Nev.

1967) ; State v. Wallen, infra.

It is obvious that in inspecting vehicles they take into

custody, the police are not seeking evidence of crime, but

are pursuing precautions which any bailees of personal

property would be expected to take as a matter of reason-

able care for the benefit of the absent owner of the vehicle

and as a safeguard against claims of loss or damage. In

the instant case, to say that they could have been less care-

ful and locked it up and left it on the hospital lot, or towed

it to the impoundment lot without conducting the inventory

of the contents does not make their more cautious and more

careful action and their greater care unreasonable or un-

constitutional.

14

The District Court, and the petitioner herein, place great

emphasis on United States v. Lawson, 487 F.2d 468 (8th

Cir. 1973). Respondent says that reliance upon Lawson

is nO more apropos to the instant case than is reliance upon

all of the other cases cited by the respondent. In fact, the

court in Lawson specifically found that the police had no

right to impound the vehicle in question in the first place.

It was on a motel parking lot, was not obstructing anything,

and no request from the defendant had been made to pro-

tect it in any way. These same factors were used by the

court to distinguish the situation in Lawson from the situ-

ation in Cady v. Dombrowski. Yet, the petitioner in the

instant case attempts to avoid the import of Cady v. Dom-

browski by stating that said case does not indicate that the

requirement Of reasonableness is any way mitigated. Re-

spondent agrees with this statement and that there is still

a requirement of reasonableness, but submits that in Cady v.

Dombroski, supra, this Court placed its stamp of approval

on inventory searches of automobiles where the ultimate

standard of reasonableness is met. Respondent submits that

such standard of reasonableness has been met in the instant

case. By the same reasoning, since United States v. Lawson,

supra, is distinguishable factually from the instant case, it

does not indicate any real conflict between the lower courts

on the real issue of inventory searches.

Respondent further submits that the upholding of reason-

ableness of the inventory search in the instant case is directly

in line with the overwhelming weight of authority of those

decisions by state courts which have upheld inventory

searches of automobiles. Plitko v. State, 11 Md.App. 35,

272 A.2d 669 (1971); St. Clair v. State, 1 Md.App. 605,

232 A.2d 565 (1967) ; State v. Hock, 54 N.J. 526, 257 A.2d

699 (1969) ; People v. Norris, 68 Cal. Rptr. 582 (1968) ;

People v. Sullivan, 29 N.Y.2d 69, 272 N.E.2d 464 (1971) ;

15

State v. Dombrowski, 171 N.W.2d 349 (Wis. 1969) ; State

v. Wallen, 185 Neb. 44, 173 N.W.2d 372 (1970); People

v. Willis, 46 Mich. App. 436, 208 N.W.2d 204 (1973)

(dictum); Heffley v. State, 423 P.2d 666 (Nev. 1967) ;

State v. Montague, 73 Wash.2d 381, 438 P.2d 571 (1968) ;

State v. Criscola, 21 Utah 2d 272, 444 P.2d 517 (1968) ;

People v. Trusty, 516 P.2d 423 (Colo. 1973); Denson v.

State, 128 Ga.App. 456, 197 S.E.2d 156 (1973) ; Godbee v.

State, 224 So.2d 441 (Fla. 1969); Jackson v. State, 243

So.2d 396 (Miss. 1971); State v. Gwinn, 301 A.2d 291

(Del. 1973). See contra: Mozzetti v. Superior Court, 94

Cal. Rptr. 412, 484 P.2d 84 (1971); Boulet v. State, 17

Ariz. App. 64, 495 P.2d 504 (1973).

CONCLUSION

For the reasons set out herein, and set out in the opinion

of the Fourth Circuit, it is submitted that no error was com-

mitted by the state trial court or by the Fourth Circuit Court

of Appeals, and no substantial reasons exist for the granting

of certiorari and that the petition for a writ of certiorari be

denied.

Respectfully submitted,

ANDREW P. MILLER

Attorney General of Virginia

Gipert W. Harru

Assistant Attorney General

Supreme Court Building

Richmond, Virginia 25219

16

CERTIFICATE OF SERVICE

I hereby certify that on or before the 24th day of June,

1976, three copies of this brief were mailed to Samuel W.

Tucker, Hill, Tucker & Marsh, 214 East Clay Street, Rich-

mond, Virginia 23220, and to Gerald G. Poindexter, Poin-

dexter and Poindexter, 304 West Cary Street, Richmond,

Virginia 23220, counsel for the petitioner.

Grtpert W. Harru

Assistant Attorney General