Opposition — Bramblett v. Georgia

Supreme Court brief1978

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Supreme Court, U. 8, ~)

FILED

' péC 9 1977

—_ RODAK, JR., CLERK

Supreme Court of the United States

OCTOBER TERM, 1977

NO. 77-618

HOWARD BRAMBLETT,

Petitioner,

STATE OF GEORGIA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF GEORGIA

ARTHUR K. BOLTON

Attorney General

ROBERT S. STUBBS, II

Executive Assistant

Attorney General

RICHARD L. CHAMBERS

First Assistant

Please serve: Attorney General

JOHN C. WALDEN JOHN C. WALDEN

132 State Judicial Bidg. Senior Assistant

Assistant Attorney General

INDEX

QUESTIONS PRESENTED ...++++eetI1

STATEMENT OF THE CASE ....+.++-+ +3

REASONS FOR NOT GRANTING THE WRIT

BASED UPON THE RECEIPT OF

RELIABLE INFORMATION WHICH

WAS SUBSEQUENTLY CORROBO-

RATED BY THE LAW ENFORCEMENT

OFFICERS THROUGH SURVEILLANCE

THERE WAS SUFFICIENT PROBABLE

CAUSE PLUS THE EXISTENCE OF

EXIGENT CIRCUMSTANCES TO

JUSTIFY THE SEARCH OF THE VAN

EITHER AT THE PLACE OF ARREST,

OR LATER UPON ITS BEING TOWED

TO THE POLICE STATION... . 6

THIS IS NOT THE PROPER CASE

IN WHICH TO DETERMINE WHETHER

CONNALLY V. GEORGIA SHOULD BE

APPLIED RETROACTIVELY . . . .11

CONCLUS ION > . e . . * * + * * * . . 1 3

CERTIFICATE OF SERVICE .....+-+-. 14

CITATIONS

Cases:

Adams v. Illinois, 409 U.S. 505

} ee @. 6 ei be eye

Bramblett v. State, 139 Ga. App.

745, 229 S.E. 2a 484 (1976).

Bramblett v. State, 239 Ga. 336,

-E. 80 (1977) .

Brineqar v. United States, 238

U.S. 160, 175 (1945)

Carroll v. United States, 267 U.S.

, 66:4 gn 2 aes

Chambers v. Maroney, 399 U.S. 42

) ® © £69: 2, 6. “2 6:2

Chimel v. California, 395 U.S.

752 (15695)

Coleman v. Alabama, 399 U.S. l

. 6 +. bee. we 8

Conna lit v. Georgia, 429 U.S.

Coolidge v. New Hampshire, 403 U.S.

pewesesee

Draper v. United States, 358 U.S.

Escobedo v. Illinois, 378 U.S.

4 * * * * * > * *

Page

. 12

ore

. 9

ai;

. 12

ae?

> @

. 9

. 12

10,

Cases (continued)

Griffin v. California, 380 U.S.

“255

( Riess @ieie «ee 6

Hankerson v. North Carolina

U.S. , D3 Lb. Ed. 2d 306

(1977) .

Johnson v. New Jersey, 384 U.S.

719 { . . . + * . 7 .

Lee v. United States, 376 F. 2d

98 (Sth Cir. 1567), cert.

denied, 389 U.S. 837 (1567).

Linkletter v. Walker, 381 U.S.

( aim 6 © 4

Mapp v. Ohio, 367 U.S. 643 (1961)

Miranda v. Arizona, 384 U.S.

Spe aeeer a es te ee

Mullaney v. Wilbur, 421 U.S. 684

Tehan v. Shott, 382 U.S. 406

Texas v. White, 423 U.S. 67

United States v. Ferrara, 539

F. 24 799 (ist Cir.

1976) . . * . . . . . . -

iii

Cases (continued) Page

United States v. Mitchell, 538 F.

th Cir. 76),

cert. denied, U.S.

97s. Ct. 1578 (1977) .....9

United States v. Valenzuela, 546

F. 24 273 (Sth Cir. 1976) . J . . * 4

United States v. Waddey, 536 F. 2d

F. t - 1976) ...9

Williams v. United States, 401

U.S. 646 (1971) * . . * . . . -12

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

NO. 77-618

HOWARD BRAMBLETT,

Petitioner,

STATE OF GEORGIA,

Respondent.

oe]

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF GEORGIA

BRIEF IN OPPOSITION FOR THE RESPONDENT

QUESTIONS PRESENTED

)

Where information received by a reliable

informant is later corroborated by law enforce-

ment officers during their surveillance of a

warehouse, and where the officers observed an

empty van enter the warehouse premises, and

later leave fully loaded during the late

o2e

night hours when they knew that no

departure of merchandise from the warehouse

was authorized, did these officers have

probable cause to later arrest the occupants

of the van and conduct a search without

having previously obtained a warrant after

having followed the van to a private

residence other than that of the defendant?

Should this Court consider the question

of whether Connally v. Georgia, 429 U.S. 245

(1977) should be applied retroactively or

prospectively when a search warrant was

subsequently obtained after the police had

earlier arrested and searched the defendant

and the van he was driving following their

surveillance of the defendant pursuant to

information received from a reliable

informant?

-3-

STATEMENT OF ‘HE CASE

As a result of reports from various

companies in the northwest Georgia county of

Whitfield concerning suspected losses of

yarn used in the manufacturing of carpeting,

local and federal law enforcement agents

received information from a reliable

informant that yarn was being stolen from

the Crown Cotton Mill, and that on August

18, 1974 an additional theft of yarn from

the Crown Cotton Mill was to take place.

The informant also told the law enforcement

officers that the individual who would be

involved in this theft would be driving a

light colored Ford Econoline van, with a

certain license number, and that the yarn

would be taken from the warehouse sometime

after midnight. While one of the law

enforcement officers was driving his auto-

mobile in the direction of the Crown 6

Warehouse at around 11:30 p.m. he came

up behind a van, and upon checking the

license number of the van discovered that

it bore the same tag number of the vehicle

which their informant had said would be

used in the theft of the yarn from the

warehouse on that partic*lar evening.

This officer also noticed that the van

had transparent windows, and was empty

when it entered the premises upon which

the warehouse was located, and that when

it left approximately an hour and a half

later it was full. The law enforcement

officers had also previously checked with

the manager of the warehouse and had

learned that there were no authorized

shipments that would be leaving the

warehouse on the night in question.

~4-

When this particular van departed

from the mill warehouse it was followed

by an agent until it parked in the driveway

of a private residence which did not belong

to the defendant. The officer's car pulled

up behind the van after it had parked, with

the officer getting out of his car and

walking along side the van where he once

again noticed that the windows were covered

by what appeared to be cardboard boxes.

This van also bore the same tag number as

the van which the officer had earlier seen

entering the warehouse area, and had the

same tag number as had been described to

the officers by the informant. Before the

defendant had an opportunity to get out of

the van the agent arrested the defendant

and his passenger. The contents of the

vehicle were identified at that time as

being cartons in which yarn was customarily

packaged. The officers then called for a

tow vehicle so that the van could be

transported to the Dalton Police Department.

A search warrant was also obtained from a

local justice of the peace after the van

had been towed to the police department.

It is the petitioner's contention

that the law enforcement officers were

unauthorized to search the vehicle in

the driveway of the residence of his

brother, as well as conducting a later

and more thorough search at the police

department following the towing of the

van to that location. Petitioner contends

that the law enforcement officers had a

sufficient opportunity to obtain a search

warrant, but even under that warrant his

motion to suppress should have been

granted since the warrant was not obtained

from a neutral and detached magistrate.

Both the Georgia Court of Appeals and the

Georgia Supreme Court have found the

petitioner's arguments to be without merit.

Bramblett v. State, 139 Ga. App. 745, 229

S.E. 24 484 (1976); Bramblett v. State, 239

Ga. 336, 236 S.E. 2d 580 (1977).

te “re 4 “ . es, _*

8 i aaeve Ud Hn TRw

-6-

REASONS FOR NOT GRANTING THE WRIT

A. BASED UPON THE RECEIPT OF

RELIABLE INFORMATION WHICH

WAS SUBSEQUENTLY CORROBO-

RATED BY THE LAW ENFORCEMENT i

OFFICERS THROUGH SURVEILLANCE

THERE WAS SUFFICIENT PROBABLE i

CAUSE PLUS THE EXISTENCE OF

EXIGENT CIRCUMSTANCES TO

JUSTIFY THE SEARCH OF THE VAN

EITHER AT THE PLACE OF ARREST,

OR LATER UPON ITS BEING TOWED

TO THE POLICE STATION.

The question presented to this Court

by the petitioner is whether the search of

his van immediately following his arrest

comes within the recognized exception to

warrantless searches of automobiles under

Carroll v. United States, 267 U.S. 132

(1925) and Chambers v. Maroney, 399 U.S.

42 (1970), or whether the law enforcement

officials were required as is urged by the

petitioner under Coolidge v. New Hampshire,

403 U.S. 443 (1971) to have obtained a

search warrant before going through the

van, either at the situs of the petitioner's

arrest, which was in the driveway of his

brother's home, or later after the vehicle

had been towed to the police department.

Both Georgia appellate courts found that

the facts in this case justified a :

warrantless intrusion into the petitioner's |

van based upon the law enforcement officers

having probable cause to not only arrest,

but to search the van because of the

presence of exigent circumstances.

Brambiert v. State, 139 Ga. App. 745, 748,

pas ; Bramblett v. State, 239 Ga. 336,

1, supra.

In this case the information which

the law enforcement officers had received

from a reliable informant was independently

corroborated by an independent surveillance

by those law enforcement officers, individuals

who saw a van which both fit the color

description and out-of-state tag as given to

them by the informant enter the premises of

a warehouse »hich had previously experienced

theft of certain carpeting yarn. These

officers also noted that the van when it

entered the warehouse premises was empty,

and that when it left it appeared to be

loaded. The officers were also aware of

the fact that there were no authorized

shipping departures on the night in question,

and that the guard made no attempt to stop

the van when it left the warehouse area.

Following the van's leaving the warehouse

the officers followed the van to an unknown

residence, a house which appeared to be

unoccupied. Thus, the law enforcement

people were dealing with an out-of-state

vehicle which had pulled into the driveway

of an unknown residence, which appeared

to be unoccupied, plus the fact that there

existed other participants in the scheme

who could have returned to the location

of the vehicle containing the stolen yarn

to transport it outside the state as well

as outside the jurisdiction in which a

warrant could be obtained. The Georgia

Supreme Court pointed out that it was

quite possible that the law enforcement

officers could have considered the gate

guard at the warehouse as having knowledge

as to where the van was parked should the

officers have left the van in order to

obtain a search warrant. Bramblett,

supra at p. 341.

The petitioner in support of his

contention that it was first necessary to

obtain a warrant before his van was searched

relies exclusively upon Coolidge v. New

Hampsh‘'re. supra. However, aS pointed out

: Booreta appellate courts the factual

situation in the petitioner's case is

Significantly different from that which

occurred in Coolidge, supra. For one thing,

the law officers in this instance did not

have an opportunity to obtain a warrant

prior to the time they first came upon the

van and subsequently followed it into the

driveway of the home which turned out to

be that of the petitioner's brother.

Additionally, unlike the situation in

Coolidge, the officers had sufficient

—bants cause to believe that the

petitioner's van contained sclen merchan-

dise, as in Coolidge there was no indi-

cation that the car parked in the driveway

had been used for any illegal purpose.

The premises upon which the petitioner's

vehicie was located at the time of his

arrest and subsequent search did not

belong to the petitioner, as in Coolidge

the search of the automobile occurred on

premises owned by the defendant in that

case. Further distinguishine features

in this case are the fact that the

vehicle had out-of-state tags, and the

law enforcement officers knew from having

talked with the informant that the

petitioner was engaged in a business in

a neighboring state, plus the fact that

carpet yarn could not be made into its

final product without the assistance of

others who may have known the location

of the vehicle at that time. Lastly,

Coolidge can be factually distinguished

Since the driver of the vehicle in this

instance was arrested before he got out

-9-

of the van, as in Coolidge the owner of

the car was a reotel at Eis house, some

distance removed from the vehicle.

Under the Carroll doctrine probable

cause will justify a warrantless search

of an automobile when there are facts

and circumstances within the officer's

knowledge based upon reasonably trust-

worthy information which would lead them

to believe as men of reasonable caution

that an offense has been or is being

committed. In these instances it must

be kept in mind that, "In dealing with

probable cause, ... as the very name

implies, we deal with probability.

These are not technical; they ere the

factual and practical considerations

of everyday life on which reasonable

and prudent men, not legal technicians,

act." Brinegar v. United States, 338

U.S. 160, (1949). Respondent fully

recognizes that while the constitutional

demands for a permissible search of an

automobile are somewhat less stringent,

law enforcement officers nevertheless

must have probable cause, and that the

facts in this instance unequivocally

demonstrate the existence of probable

cause for the search. Draper v. United

States, 358 U.S. 307 (1 ; United States

v. Valenzuela, 546 F. 2d 273 (Sth Cir.

; United States v. Ferrara, 539 F.

2a 799 (ist Cir. 1976); United States v.

Mitchell, 538 F. 2d 1230 r.

cert. denied, U.S. . 97 S. Ct.

(1977); United States v. Waddey,

536 F. 2a 632 (5th Cir. 1976); Lee v.

United States, 376 F. 2d 98 (9th Cir.

, cert. denied, 389 U.S. 837 (1967).

-10-

On the night the petitioner was

arrested the law enforcement officials

had sufficient probable cause plus

exigent circumstances to justify their

search of the petitioner's van either

in the driveway of the petitioner's

brother's home, or later after it was

towed to the police department without

obtaining a search warrant. “For con-

stitutional 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 a warrant given

probable cause to search, either course

is reasonable under the Fourth Amendment.”

Chambers v. Maroney, supra at p. 53.

Accord Texas v. White, 3 U.S. 67 (1975).

Since probable cause existed at the time

of the petitioner's arrest to search,

the subsequent action of the police

officers in also obtaining a search

warrant for the purposes of this

discussion is moot.

-ll=

B. THIS ‘IS NOT THE PROPER CASE

IN WHICH: TO’ DETERMINE WHETHER

CONNALLY V. GEORGIA! SHOULD’ BE

’ APPLI RO LY.

Inasmuch as the law enforcement officers

had probable cause to search the petitioner's

van either at the place of his arrest or

later at the police station, Texas v. White,

Supra: Chambers v. Maroney, supra, the

subsequent application by the law enforcement

officers for a search warrant to a justice

of the peace who received a fee only upon the

issuing of such a warrant need not be reached,

neither it is necessary to reach the question

of whether this practice for the obtaining of

search warrants which this Court struck down

in Connally v. Georgia, supra, should be

applied retroactively to the present case.

In short, this is not the right case for

this Court to determine the question of

whether Connally, supra, is to be given

prospective or retrospective application,

since this Court need not reach the Connally

issue because of the fact that the law

enforcement officers had probable cause to

search without obtaining a warrant.

Should this Court, however, be

interested in examining the question of

whether Connally, supra, should be applied

retroactively or prospectively, respondent

offers the following as a reason for not

applying Connally, supra, retroactively.

In the pas this rt has been called

upon to determine whether one of its

1409 v.s. 245 (1977).

-12-

earlier decisions concerning a constitu-

tional violation will be applied retro-

actively, the test seems to be whether

the violation is one which directly

affects the integrity and truth of the

factfinding process of the trial render-

ing it a constitutional issue which

addresses itself to the fundamental

fairness of a trial. It thus seems that

if the constitutional violation does go

to the integrity and truth of the fact-

finding process that the decision will

be applied retroactively. See Hankerson

v. North Carolina, U.S. » a dee

Ed. 2d 306 (1977), holding Mullaney v.

Wilbur, 421 U.S. 684 (1975) retroactive.