Opposition — Patty v. Virginia

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~~ Supreme Court, U. $

PILED

NOV 26 :977

| MICHAEL RoDAK. JR., CLERK

In The

Supreme Court of the United States

October Term, 1977

No. 77-357

LARRY DALE PATTY,

Petitioner,

V.

COMMONWEALTH OF VIRGINIA,

Respondent.

RESPONDENT'S BRIEF IN OPPOSITION

Supreme Court Building

Richmond, Virginia 23219

AnTHONY F. Troy

Attorney General of Virginia

James E. Kup

Assistant Attorney General

TABLE OF CONTENTS

Opinion Below

Jurisdiction

Statement of the Case

Argument Against Granting Certiorari

Conclusion

Certificate of Service

TABLE OF CASES

Almeida-Sanchez v. United States, 413 U.S. 206 (1973)

Brune v. State, 342 N.E.2d 637 (Ind. App. 1976)

Cady v. Dombrowski, 413 U.S. 433 (1973)

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

Carroll v. United States, 267 U.S. 132 (1925)

Chambers v. Maroney, 399 U.S. 42 (1970) .

Chevrolet Truck v. Commonwealth, 208 Va. 506, 158

S.E.2d 755 (1968)

Coolidge v. New Hampshire, 403 U.S. 443 (1971)

Cooper v. California, 386 U.S. 58 (1967)

Haefeli v. Chernoff, 526 F.2d 1314 (ist Cir. 1975)

Harris v. United States, 390 U.S. 234 (1968)

United States v. Mitchell, 538 F.2d 1230 (5th Cir. 1976)

United States v. Zaicek, 519 F.2d 412 (2d Cir. 1975)

STATUTES

Section 18.2-249, Code of Virginia (1950) , as amended

OTHER AUTHORITIES

28 U.S.C. § 1257 (3)

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4,6, 11

6, 8, 10, 11

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6,8

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4,5,6

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6, 8, 10, 11

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In The

Supreme Court of the Anited States

October Term, 1977

No. 77-357

LARRY DALE PATTY,

Petitioner,

Vv.

COMMONWEALTH OF VIRGINIA,

Respondent.

RESPONDENT'S BRIEF IN OPPOSITION

OPINION BELOW

The opinion of the Supreme Court of Virginia can be

found in 218 Va. 150, S.E.2d (1977), and is set

forth in the Appendix to the Petition.

JURISDICTION

Petitioner claims that jurisdiction is founded upon 28

U.S.C. § 1257(3).

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STATEMENT OF THE CASE

During the early morning hours of February 11, 1975,

Harold Green, the operator of the Greenville Mobil Service

Center, found a yellow Pontiac bearing Texas license plates

broken down and unattended on his lot (T. 7, 8).* At a little

after 7:00 a.m. that morning Mr. Green received a tele-

phone call from a man asking that the car be fixed (T. 8,9).

The repairs on the car were concluded a little before 2:00

p.m., and as the rear of the car was being lowered, the trunk

lid flew up (T. 12, 13).

Several people who were at the service station lot saw

the contents of the trunk and called the police. Officer

Fisher arrived at the service station just before 3:00 p.m.

(M.T. 18). Upon arrival he spoke with Mr. Green’s son

who described what he had seen in the trunk, and told the

officer that he recognized the contents as marijuana based

upon a high school lecture (M.T. 13, 16). Officer Fisher

then spoke with Mr. Hecht and Mr. Noble, both of whom

described the contents as green plant material packaged in a

combination of brown wrapping paper and plastic wrappers

(M.T. 14). Mr. Hecht drew a picture of what the seeds

looked like (M.T. 15). Mr. Hecht had seen marijuana before

at his home (T. 26), and described the taste and odor of the

material (T. 30). The material in the trunk had the same

smell as the marijuana Mr. Hecht had observed in his

house (T. 37).

Officer Fisher was advised that the suspect’s car was to

be picked up between 4:00 and 5:00 p.m. Officer Fisher

then relayed all of this information to Sergeant Russell at

approximately 3:30 p.m., and it was decided not to ap-

* References are to the Trial Transcript (T.) and the Transcript of

the motion to Suppress (M.T.).

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proach the subject Pontiac for fear that it might be under

surveillance (M.T. 21, 22, 27, 37). Sergeant Russell re-

quested back-up support and got additional men in place

around 5:00 p.m. (M.T. 33). Sergeant Russell determined

it was not feasible to obtain a search warrant since they

were dealing with unknown persons, and did not know

exactly when they were coming (M.T. 27, 32, 33, 34). The

suspects were expected any minute (M.T. 33). Officer

Fisher was in the service station, and Sergeant Russell con-

cluded it would not be proper to pull him out to seek a

search warrant (M.T. 34). The evidence showed that the

nearest magistrate was 15 minutes away, and it took any-

where from one hour to eight hours to obtain a search

warrant (M.T. 22, 24, 32).

The Pontiac had been disabled by Mr. Green’s son at

approximately 3:30 p.m. (T. 19). This information was

known to the police, but it is unclear when it was learned

(T. 48).

At approximately 8:10 p.m., an automobile containing

four adults drove into the service station. The petitioner

and another male went to the Pontiac, and the petitioner

got under the steering wheel (M.T. 18, 35). The petitioner

and his companions were arrested, and the keys to the

Pontiac were in petitioner’s possession (M.T. 35). The

trunk of the Pontiac was then broken into, and the police

recovered over 400 pounds of marijuana (T. 45).

ARGUMENT AGAINST GRANTING CERTIORARI

The Search Of The Vehicle Was Constitutional.

A. ForRFEITURE

Section 18.2-249 of the Code of Virginia (1950), as

amended, provides in pertinent part:

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“All money, medical equipment, office equipment,

laboratory equipment, motor vehicle or other con-

veyance, and all other personal property of any kind

or character, used in connection with the illegal manu-

facture, sale or distribution of controlled substances in

violation of § 18.2-248(a), shall be forfeited to the

Commonwealth and may be seized by an officer to be

disposed of in the same manner as provided for the

disposition of motor vehicles confiscated for illegally

transporting alcoholic beverages and all of the provi-

sions specified in § 4-56 of the Code shall apply mutatis

mutandis.”

At the time of the search the vehicle in question had been

seized by the officers for forfeiture pursuant to § 18.2-249,

and no warrant was required.

The present case is controlled by Cooper v. California,

386 U.S. 58 (1967). In Cooper the defendant was convicted

of selling heroin to a police informer. The conviction rested

in part on the introduction in evidence of a small piece of

a brown paper sack seized by police without a warrant from

the glove compartment of an automobile which police, upon

petitioner’s arrest, had impounded and were holding in a

garage. The search occurred a week after the arrest of

defendant. In finding that the warrantless search did not

violate the Fourth Amendment, this Court held that the

state statute authorized the seizure of a car used to transport

narcotics and that the officers seized the car because of the

crime for which they arrested the defendant.

As recognized by Mr. Justice Brennan in his dissent in

Cady v. Dombrowski, 413 U.S. 433, 453 (1973), an excep-

tion to the warrant requirement is that which sustains a

search in connection with the seizure of an automobile for

pusposes of forfeiture proceedings. In discussing this excep-

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tion, Justice Brennan reviewed the decision in Cooper v.

California and said:

“(T]he Court upheld the warrantless search of an

automobile after it had been lawfully impounded pur-

suant to a California statute mandating the seizure and

forfeiture of any vehicle used to facilitate the posses-

sion or transportation of narcotics. There, however,

the police were authorized to treat the car in their

custody as if it were their own, and the search was sus-

tainable as an integral part of their right of retention.”

The Second Circuit Court of Appeals has recently had

the opportunity to review a similar situation in United

States v. Zaicek, 519 F.2d 412 (1975). There the defendant

and a companion were arrested for possessing a stolen car.

The car was seized and removed to the police station where

it was locked. The police later searched the car without a

warrant and seized incriminating evidence. In reversing the

district court, the Court of Appeals held that once property

is seized by police pursuant to statute, such stolen or for-

feitable property can be searched by them without a war-

rant. The Court reasoned that where the car is properly

seized by the police pursuant to a forfeiture statute, they

have a greater possessory interest in the car than the owner.

Likewise, in Brune v. State, 342 N.E.2d 637 (Ind. App.

1976), the Court, citing Cooper v. California, upheld the

warrantless search of a car and trailer upon the forfeiture

provisions of the state statute. See also Chevrolet Truck v.

Commonwealth, 208 Va. 506, 158 S.E.2d 755 (1968).

B. AUTOMOBILE EXCEPTION.

The law of search and seizure as it pertains to vehicles

has been evolving over the years. In Carroll v. United States,

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267 U.S. 132 (1925), this Court recognized a distinction

between the warrantless search and seizure of automobiles

or moveable vehicles, on the one hand, and the search of a

house or office on the other. In Chambers v. Maroney, 399

U.S. 42 (1970), this Court outlined the development of

automobile searches. The original theory for treating auto-

mobiles differently from houses was the factor of mobility.

This factor has apparently been eroded over the years, at

least as far as searches conducted by state officers. Warrant-

less searches of vehicles by state officers have been sustained

by this Court in cases in which the possibilities of the vehicle

being removed or evidence in it destroyed were remote, if

not nonexistent. Cf. Harris v. United States, 390 U.S. 234

(1968) ; Cooper v. California, supra; Cady v. Dombrowski,

supra; Cardwell v. Lewis, 417 U.S. 583 (1974). Part of the

reason for this relaxation in the mobility theory has been

the fact that a search of an automobile is far-less intrusive

on the rights protected by the Fourth Amendment than the

search of one’s person or a house. Almeida-Sanchez v. United

States, 413 U.S. 266 (1973) (Powell, J., concurring). Addi-

tionally, because of the very nature of automobiles, police

are often brought into noncriminal contact with automobiles.

Cady v. Dombrowski, supra.

With this background in mind, we now must examine the

case at hand. In United States v. Mitchell, 538 F.2d 1230

(5th Cir. 1976), the sole question before the Fifth Circuit

was the constitutional validity of a warrantless search of an

automobile in which the defendant was apprehended and

in which contraband was discovered. Federal drug officials

had been contacted by a citizen who advised that he had

been hired under suspicious circumstances to drive a truck

from Mexico to the United States, and had received a cash

bonus of $5,000. Investigation indicated that these arrange-

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ments were likely a cover for some sort of a contraband-

smuggling scheme. The same citizen again advised the

federal authorities that he was to pick up a truck (which

he accurately described in great detail, including its Ver-

mont license plate) in Mexico on a certain date, cross the

border at a given time, and leave the truck on the parking

lot of a specified motel in San Antonio, Texas. The citizen

did all of these things and, as instructed by his employer,

locked the vehicle, disposed of the keys, and departed the

scene.

“Shortly thereafter at about dusk, appellant Mitch-

ell, who had been observed following Mancuso dis-

cretely all the way from Mexico, drove his rented auto-

mobile into the parking lot. The several agents who

were lying in wait there saw him circle the parked

truck, return to the public street and park. About ten

minutes later, accompanied by his dog, he re-entered

the lot and parked alongside the truck. Producing a

key, Mitchell then unlocked the rear door of the truck’s

camper body, as well as the truck’s cab. He then locked

the dog in the cab and transferred the contents of his

automobile to the truck’s camper enclosure. Among

these were several angle-irons and two hydraulic jacks,

suitable for elevating the camper shell from the truck

bed. These maneuvers were video-taped by the agents,

in part by the use of special ‘starlight’ lens equipment

provided by them in anticipation of night work. His

transfers completed, Mitchell locked the truck through-

out and drove off in his automobile. At this time, about

an hour had elapsed from his first appearance at the

parking lot that Sunday evening.

“About half an hour later, having turned in his

rented car as was later ascertained, he returned in a

taxi. When he re-entered the truck cab, seated himself,

and ‘it appeared imminent that he was going to drive

the truck away,’ agents converged on the truck and

arrested him. About a forty-five minute wait then en-

sued while Customs’ dogs trained to sense controlled

substances were summoned. When their actions indi-

cated the presence of such controlled substances in or

about the camper, the agents attempted to gain access

to the area between the camper floor and truck bed.

After about a half-hour’s effort and the removal of a

hold-down bolt, they were able to pry up the camper

and obtain a small sample of vegetable material which

they recognized as marijuana. The camper shell was

later removed by means of the jacks, and quantity of

over 400 pounds of the substance was found hidden

in the space between the camper floor and the truck

bed. The agents neither had nor ever attempted to get

a warrant authorizing any of these actions.” 538 F.2d

at 1231, 1232.

In Mitchell, the Fifth Circuit found probable cause for

the search, and the Commonwealth submits that, in light

of the facts previously mentioned, probable cause clearly

existed in the case at bar. The defendant in Mitchell, like

the petitioner in the present case, argued that for two

reasons there were no exigent circumstances justifying the

failure to obtain a search warrant.

First, the defendant argued that by the time of the search

the truck had been immobilized, exigence had passed, and

a warrant could have been obtained. The Fifth Circuit held

this argument foreclosed by Chambers v. Maroney and

Cardwell v. Lewis. “Both of these authorities recognized that

exigence is to be determined as of the time of seizure of an

automobile, not as of the time of its search; the fact that in

these cases sufficient time to obtain a warrant had passed

between each seizure and the corresponding search did not

invalidate either.” 538 F.2d at 1232. As noted by the Fifth

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Circuit, at the time of the seizure, Mitchell had completed

loading the truck, disposed of his other vehicle, and assumed

the driver’s seat, ignition key in hand. The Commonwealth

submits that virtually the same facts exist in the present

case. The petitioner here came to the service station, got into

the Pontiac under the steering wheel with ignition key in

hand. While it is true that the Pontiac had been disabled in

the present case, this should not alter the result. Once the

petitioner had paid for the repairs, the service station oper-

ator would have been required to replace the distributor

cap and the petitioner could have driven away. If the

service station operator had refused to replace the distrib-

utor cap, the petitioner would then have been alerted and

could either have escaped or made other arrangements to

move the car.

The Fifth Circuit also disposed of the defendant’s argu-

ment that exigent circumstances did not exist because of

the presence around the parking lot of ten or more sur-

veilling agents rather than one or two by stating:

“We have never before tested mobility of automo-

biles or exigence of circumstances by evaluating police

capability to respond on the balance of forces deployed.

Once commenced, the end of such a calculus would be

evaluation of the opposing armaments and of the rela-

tive top speeds of the vehicles. We decline to embark

on it.” 538 F.2d at 1233.

Second, the defendant argued that exigence did not exist

since the search was deliberately planned as a warrantless

one. The Fifth Circuit took this to mean either that there

was ample time after probable cause had arisen for ob-

taining a warrant but none was sought or that the agents,

confident that they would be dealing with an automobile,

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deliberately chose to take advantage of the so-called “auto-

mobile exception” to the warrant requirement. The Fifth

Circuit recognized that the more prudent course would

have been for the officers to have sought a warrant, but the

fact that they failed to do so did not invalidate the search.

The Court observed that the agents took a gamble that

factors of exigence excusing the trip would arise, and since

they did, it did not matter when they arose. Quoting from

Cardwell v. Lewis, the Court said:

“Respondent contends that here, unlike Chambers,

probable cause to search the car existed for some time

prior to arrest and that, therefore, there were no exi-

gent circumstances. Assuming that probable cause pre-

viously existed, we know of no case or principle that

suggests that the right to search on probable cause and

the reasonableness of seizing a car under exigent cir-

cumstances are foreclosed if a warrant was not obtained

at the first practical moment. Exigent circumstances

with regard to vehicles are not limited to situations

where probable cause is unforeseeable and arises only

at the time of the arrest. (Citation omitted). The exi-

gency may arise at any time, and the fact that the

police might have obtained a warrant earlier does not

negate the possibility of a current situation’s necessi-

tating prompt police action.” 417 U.S. at 595-96; 538

F.2d at 1233.

The Commonwealth submits that the officers in the

present case never had the opportunity to secure a search

warrant that existed in Mitchell. When Sergeant Russell

got his men into position, they were expecting the people

who were coming for the Pontiac to arrive at any minute.

The officers did not know who they were dealing with or

how many. As it ended up, there were as many defendants

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as police. Unlike the agents in Mitchell, Sergeant Russell

was faced with an uncertain situation and determined it

was not feasible to send one of the officers for a warrant.

The Fifth Circuit concluded its opinion in Mitchell with

some thoughts which appropriately should receive universal

acceptance:

“We deal here with a crime and a criminal, not a

sporting event. True, the constable put himself in the

way to blunder, though he did not. Appellant would

nevertheless have us disqualify him from the game

because he chose a course less than the best, or perhaps

because his heart was not entirely pure. But it is not

a gaine, and we decline to do so.” 538 F.2d at 1233-34.

Petitioner's reliance upon Coolidge v. New Hampshire,

403 U.S. 443 (1971), is misplaced. In Cardwell v. Lewis,

supra, this Court, in a plurality opinion, distinguished Cool-

tdge on the ground that there the police had entered on the

defendant’s private property and seized the car which was

parked in his driveway. 417 U.S. at 593. See also Cady v.

Dombrowski, supra; Haefeli v. Chernoff, 526 F.2d 1314

(Ist Cir. 1975). Coolidge has also been distinguished when

the subject of the search is contraband. United States v.

Mitchell, 538 F.2d 1230, 1233 n.3.

It is also of no moment that petitioner’s car was seized

at the service station rather than on open highway. In

addressing this question, this Court in Cardwell v. Lewis,

supra, stated:

“The fact that the car in Chambers was seized after

being stopped on a highway, whereas Lewis’ car was

seized from a public parking lot has little, if any, legal

significance. The same arguments and considerations

of exigency, immobilization on the spot, and posting a

guard obtain.” 417 U.S. at 594.

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CONCLUSION

For the foregoing reasons, the Commonwealth of Virginia

submits that the search of the vehicle in question was

proper and constitutional and in keeping with prior de-

cisions of this Court. This case does not present to the Court

any issue which is novel or would have national significance.

Therefore, the Petition for Writ of Certiorari should be

denied.

Respectfully submitted,

ANTHONY F. Troy

Attorney General of Virginia

James E. Kup

Assistant Attorney General

Supreme Court Building

Richmond, Virginia 23219

CERTIFICATE OF SERVICE

This is to certify that I, James E. Kulp, Assistant Attorney

General of Virginia, am a member of the Bar of the Supreme

Court of the United States, and I have mailed three copies

of this Brief in Opposition to P. H. Harrington, Jr., Esquire,

10560 Main Street, Suite 211, Fairfax, Virginia 22030,

counsel for petitioner, on November 25, 1977.

James E. Kup

Assistant Attorney General

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