Petition — Constantine v. United States

7 Supreme Court, U.S

| FILED

| FEB 17 1978

IN THE

‘ SUPREME COURT OF THE UNITED STAI(PSPHAEL RODAK, JR., CLERK

Es

October Term, 1977

No. {i oe 1168

MARK LEWIS CONSTANTINE, Petitioner,

Vv.

UNITED STATES OF AMERICA, Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

ROGER B. TURRELL §& Solicitor General

' ASSOCIATES CO., L.P.A. Department of Justice

Roger B. Turrell Washington, D.C. 20530

2305S Central Avenue

1 Middletown, Ohio 45042 John A. Field, III

United States Attorney

RION, RION §& RION

John H. Rion E. Leslie Hoffman, III

1630 lst National Plaza Assistant United

130 West Second Street States Attorney

Dayton, Ohio 45402

COUNSEL FOR PETITIONER COUNSEL FOR RESPONDENT

February 17, 1978

INDEX

Page

OPINIONS BELOW.......-+-eeee- 1 - 2

JURISDICTION... ceccccccsees 2

QUESTIONS PRESENTED........-- 2- 4

STATEMENT OF THE CASE.......-.- 4 - 8

REASONS FOR GRANTING WRIT.... 8 - 16

1. The decision of the

Fourth Circuit Court

is in conflict with

the decision of this

Court... ceccccccccces 8

2. The decision of the

Fourth Circuit Court

is in conflict with

the decisior of other

circuit courts of

appeal......eeeeereeees 12

CONCLUSION.......ceeevecceces 16 - 18

APPENDIX. .....eceeeeeccececes App. 1-16

Exhibit A - Opinion of

Pd ee ee. « *

ii

INDEX

Page

_ Court of Appeals

for the Fourth

SCEPCHEC ce cccceces App. 2 - 9

Exhibit B - Opinion

of the District Court

for the Southern

District of West,

VEPRAMEBs cc ccccces App. 10 - 14

CONSTITUTION OF THE

UNITED STATES - AMENDMENT

(IV) (SEARCHES AND SEIZURES)

App. 15

CERTIFICATE OF SERVICE.... App. 16

CITATIONS

Cases:

Adams v. Williams, 407 U.S. 143... 12

Almeida-Sanchez v. United States,

SED DB.B. BOS coccsevecs 3,4,10,16

Beck v. Ohio, 379 U.S. 89......... 4

iii

INDEX

Page

Coolidge v. New Hampshire,

405 U.S. SS. cccccccccceces 3,4,8,10

Harris v. United States,

SOO B.B. 336, BBs ccccceces 8

Sebron v. New York, 392 U.S.

Beccncecvccesceececsescocs 12

Terry v. Ohio, 392 U.S.

RaceeWoceessccseeeceeseuese 2,3,9,16

United States v. Brignoni-

Ponce, 422 U.S. 873........ 3,9,13,16

United States v. Frisbie,

21 Cr. L. 2123 (Fifth Cir.,

Se Be TF ccccccccdccccscocepe 13

United States v. Miller,

$46 F 2d 251 (May, 1977,

Bighth Cir.) cccdosccccege 14

United States v. Montgomery,

21 Cr. L. 225 (May 26, 1977,

United States v. Morrison,

546 F 2d 319 (May, 1977,

Ninth Cir.).....ceeeeee-

United States v. Watson,

4235 U.S. Sd. ccccccccees

MISCELLANEOUS:

Zi U.S.C. B41 (a) CL} cccecss

28 U.S.C. para. 1254 (1)...

14,15

12

IN THE

SUPREME COURT OF THE UNITED STATES ;

October Term, 1977

appearing in the Appendix, marked

No. Exhibit "B" is the opinion rendered

MARK LEWIS CONSTANTINE, Petitioner by the District Court for the Southern

. District of West Virginia.

UNITED STATES OF AMERICA, Respondent JURISDICTION

The judgment of the Court of Appeals

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT ;

for the Fourth Circuit was entered on

December 14, 1977. An extension of

The petitioner, Mark Lewis Constantine, time to file a Petition for Rehearing

respectfully prays that a writ of was granted until January 28, 1978.

certiorari issue to review the judg- The Petition for Rehearing was filed

ment and opinion of the United States ‘ . January 12, 1978 and was denied Janu-

Court of Appeals for the Fourth Circuit ary 28, 1978. This Petition for Writ

in which Petition for Rehearing was of Certiorari was filed within thirty

denied on January 20, 1978 (30) days of that time. This Court's

OPINIONS BELOW jurisdiction is invoked under

The opinion of the Court of Appeals 28 U.S.C. para. 1254 (1).

for the Fourth Circuit appears in the QUESTIONS PRESENTED

Appendix marked Exhibit "A". Also 1. Should the investigative stop

limitations set forth in Terry v.

3

Ohio, 392 U.S. 1 and United States v.

Brignoni-Ponce, 422 U.S. 873 be signi-

ficantly extended?

2. Where petitioner is stonved and

summoned across the street to a cruiser

by a city policeman on a downtown street

one block from petitioner's residence

in the early morning hours because he

is a "new face", does the police of-

ficer have sufficient justification to

reach inside petitioner's jacket and

remove a bag containing a greenish

substance? Coolidge v. New Hampshire,

403 U.S. 443.

3. Does the officer, having seized

the greenish substance, have the legal

right to arrest and search petitioner

on the spot there being no danger to

the officer's safety involved?

Almeida-Sanchez v. United States, 413

U.S. 266.

4. Are the fruits of such a search,

namely an ounce of cocaine, found deep

in the inside jacket vocket, admissi-

ble in evidence against netitioner?

Beck v. Ohio, 379 U.S. 89, Coolidge v.

New Hampshire, 403 U.S. 443.

5. Does the balance of the public

interest against Fourth Amendment

guarantees require that a verson may

be stopped and summoned for field in-

vestigation without some probable

cause for stopping that person?

STATEMENT OF THE CASE

The Fourth Circuit reversed the

District Court which had suppressed

evidence. Defendant was stopped at

1:40 A.M. in downtown Huntington, West

Virginia within a block of his resi-

dence and summoned across the street

5

to a police cruiser because he was a

'new face" to a cruising patrolman.

The 23 year old petitioner was manager

of a Huntington department store. The

patrolman demanded identification. As

the defendant stood at the patrolman's

cruiser in response to the officer's

summons, the officer reached inside de-

fendant's open blue ski jacket and re-

moved a small plastic bag six inches

long from an inside pocket 6 3/4 inches

deep. The officer testified he seized

the bag containing a green substance

"for closer examination". He then

placed defendant under arrest, searched

him and found hidden deep inside the

same pocket an ounce of cocaine.

At a preliminary hearing, the of-

ficer testified that he had had some

6

reports of someone shooting a pellet

gun at windows in an area some five

to eleven blocks from where petitioner

was stopped and summoned to the patrol

car.

Nowhere in the very short record of

the preliminary hearing did the offi-

cer state or even infer that he had

"reasonable suspicion" that petitioner

might be involved in criminal activity.

Although the Fourth Circuit in its

opinion states otherwise, we find no

statement or inference in the officer's

testimony that petitioner was observed,

stopped and summoned to the cruiser,

in an area which had a disnosition

toward criminal activity.

Nor does the police officer state

that petitioner in any w:, whatever

exhibited any susnicious or "circum-

7

ambient activities" before the officer.

When petitioner's counsel raised ob-

jections under both the Fourth Amend-

ment and Section 6, Article 3, Consti-

tution of West Virginia, the prosecu-

tor representing the state dismissed

the charges while the federal drug

enforcement agency simultaneously ar-

rested and charged petitioner with

violating 21 U.S.C. 841 (a)(1) -

Possession with intent to distribute -

Schedule II Narcotic controlled sub-

stance, Cocaine. Motion was timely

made to suppress the purnvorted cocaine,

which motion was sustained. The

government appealed this action by

the trial court to the circuit court

of appeals before trial had been held.

The circuit court reversed and remanded

for trial. This is an attemnted appeal

from that decision.

REASONS FOR GRANTING THE WRIT

1. The decision of the Fourth Cir-

cuit Court is in conflict with the

decisions of this Court in the appli-

cation of the exclusionary rule in

Fourth Amendment search and seizure

cases. Harris v. United States, 390

U.S. 234, 236 and Coolidge v. New

Hampshire, 403 U.S. 433, hold that an

arresting officer who comes within plain

view of a niece of evidence not con-

cealed, may seize it but only so long

as the plain view was obtained in the

course of an appropriately limited

search of the arrestee or supnlemented

by prior justification, whether it be

warrant for another object, hot pur-

suit, search incident to lawful ar-

rest or such other legitimate reason

9

for being present. We believe the of-

ficer in the instant case had none of

those justifications for his stopping

petitioner and summoning him to his

police cruiser.

Terry v. Ohio, 392 U.S. 1 holds that

there must be a pattern of conduct

which would give rise to an inference

by a reasonable person that the defen-

dant was violating the law or about to

violate the law before an officer may

approach the defendant and pat him

down for weapons.

United States v. Brignoni-Ponce, 422

U.S. 873, states that a roving patrol

stop must be a result of the officer's

being "aware of specific articulable

facts, together with rational infer-

ences from these facts, that reasona-

bly warrant suspicion." In the in-

10

stant case, there was nothing that

would give rise to a rational in-

ference that petitioner had been

involved in or about to be involved in

criminal activity.

This Court was extremely careful

to emphasize the reasonable suspicion

necessary to justify a ston. This

Court suppressed evidence holding

that a stop and search of a moving

automobile can be made without a

warrant but, there must be probable

cause. Almeida-Sanchez v. United

States, 413 U.S. 266.

In Coolidge v. New Hampshire, 403

U.S. 443, this Court reiterated the

doctrine that searches and seizures

conducted outside judicial process,

without prior avvroval by a judge or

magistrate, are per se unreasonable

11

under the Fourth Amendment, subject

only to a few specifically established

and well delineated exceptions which

are jealously and carefully drawn. In

that case the permitted seizure of the

evidence in plain view had to be supple-

mented by prior justification whether

it be warrant for another object, hot

pursuit, search incident to lawful ar-

rest or some other legitimate reason

for being present. Plain view alone

was not enough to justify a warrant-

less seizure of the evidence. No

amount of probable cause can justify a

warrantless search or seizure in the

absence of exigent circumstances.

The Fourth Circuit's allowing the

use of the evidence in the case at

bar extends exigent circumstances to

12

a virtually unlimited extent. We

believe that this case goes far beyond

the limits set by this Court in Adams v.

Williams, 407 U.S. 143, Sebron v. New

York, 392 U.S. 40 and United States v.

Watson, 423 U.S. 411.

2. This decision by the Fourth

Circuit Court of Appeals is in conflict

with the decisions of other federal

courts of appeal as to the application

of the Fourth Amendment. The following

cases decided by the circuit courts on

Similar fact and law patters are illus-

trations, we believe, indicating that

had this case been appealed to the

Fifth, Eighth, Ninth or District of

Columbia Circuits, the trial court's

exclusion of the evidence would have

been upheld:

13

a. United States v. Frisbie,

21 Cr. L. 2123 (Fifth Cir.,

5-11-77). <A truck was stopped

in the early morning hours. The truck's

direction, the likelihood that it came

from an unpatroled river area, the

driver's difficulty in stopping and

the partially vopulated area where the

stop occurred and the officers’

knowledge that vehicle traffic did not’

normally travel the roads at such early

hours and that the route was frequently

traveled by smugglers, primarily in thr

late evening and early morning hours,

were all reasons why the government

claimed probable cause. The circuit

court suppressed the evidence citing

Brignoni holding that a reasonable

suspicion was necessary. The court

stated that the residents of border

14

areas would be subject to potentially

unlimited interference with their use

of the highways and that a traveler's

decision to travel at off hours should

not subject him to a stop.

b. United States v. Miller,

546 F 2d 251 (May, 1977,

Eighth Cir.). Defendant was

a guest in a legally searched house.

He was detained ten minutes and refused

permission to leave. His sitting with

his shirt tail out caused officers to

suspect he might be armed. He was

patted down revealing a gun. The cir-

cuit court held the gun should be sup-

pressed, that there was not sufficient

probable cause to search him or pat

him down.

c. United States v. Morrison,

15

546 F 2d 319 (May, 1977,

Ninth Cir.). Border agents saw

the defendant's car on a highway, two

and a half miles from the border in a

notorious smuggling area. They order

him to stop. Defendant's subsequent

activities or acts caused a search re-

vealing marijuana. The court held the

stop must be valid when made. The

evidence is suppressed.

d. United States v. Montgomery,

21 Cr. L. 225 (May 26, 1977,

C.A. D.C.). Defendant was

stopped by two officers in violation

of Fourth Amendment. Defendant aroused

their suspicions by encircling a

residential area but they had no

articulable facts on which to base

these suspicions. Thus, illegal fire-

arms discovered in a sequence of events

16

touched off by the illegal stop were

excluded from evidence.

These are just a few of the dozens

of cases on point, in our opinion,

showing a conflict among the courts

of appeal on the application of the

exclusionary rule.

CONCLUSION

The decision at bar extends the

Terry, Brignoni-Ponce and Almeida-

Sanchez decisions to such an extent

that it is a virtual emasculation

of the exclusionary rule.

There is hardly any time, we have

ascertained, when an officer on a

city beat cannot testify that there

was some minimal criminal activity

reported to him. Is this, together

with seeing a new face on his beat

sufficient and probable cause to

17 18

permit an officer to make a stop and from the exclusionary rule require-

aa ; ; e

summon the petitioner to his cruiser’ mente of the Pearth Ancadmeet.

Does this put the officer in a justi- See thane seandes & rie of

fiable position to a inside t F : , ,

P reach inside the certiorari should issue to review

por , ;

petitioner's coat to seize what the the judgment and opinion of the

, ; , ca 9

officer believes might be marijuana’? Beurth Circuit.

Does this activity, when the officer Respectfully submitted,

does not testify that he was in any ROGER B. TURRELL §& ASSOCIATES

fear or need of self-protection per- CO., L.P.A.

mit a search of petitioner? Does | , 3) sag

' By: a , ve

the officer have any probable cause oger B. Tutrell~

2305 Central Avenue

Middletown, Ohio 45042

($13) 422-4508

whatever, when he must view the

commission of a misdemeanor in order

to arrest without a warrant? RION, RION §& RION

}

/ 4, ,

We respectfully submit that allow- a? ,

By : softs. ae

John H. Rion

1630 First National Plaza

130 West Second Street

Dayton, Ohio 45402

(513) 223-9133

ing this decision to stand will, after

the decision is published, create a

virtual immunity for any law officer

COUNSEL FOR PETITIONER

February 17, 1978

APPENDIX

EXHIBIT A:

Opinion of the Court of

Appeals for the Fourth

CAPSMAC. ccc ccccccevcces

EXHIBIT B:

Opinion of the District

Court of the Southern

District of West

Virginia... cccccccccccs

CONSTITUTION OF THE

UNITED STATES - AMENDMENT

(IV) (SEARCHES AND

SEIZURES) ...cccccces

CERTIFICATE OF SERVICE....

bo

'

wo

10 - 14

15

16

App. 2

EXHIBIT A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 77-1604

UNITED STATES OF AMERICA, Appellant,

V.

MARK LEWIS CONSTANTINE, Appellee.

Appeal from the United States District

Court for the Southern District of West

Virginia, at Huntington Charles H. Haden,

II, District Judge

Argued 10-6-77 Decided 12-14-77

Before Bryan, Senior Circuit Judge, Russell

and Widener, Circuit Judges.

E. Leslie Hoffman, III, Assistant United

States Attorney (John A. Field, III,

United States Attorney on brief) for Ap-

pellant; Roger Turrell (William L. Redd

on brief) for Appellee.

App. 3

PER CURIAM:

Mark Lewis Constantine was arrested

and indicted for possession of cocaine

with the intent to distribute it,

21 U.S.C. 841 (a)(1). On March 7, 1977,

the District Court granted the defen-

dant's pretrial motion to suppress as

evidence against him the cocaine seized

by the police officer at the time of

the arrest. From this order the govern-

ment appeals. 18 U.S.C. 3731. We re-

verse, finding the seizure justifiable

and the evidence admissible at trial.

Assigned to the midnight patrol

shift, Officer Damon Sloan of the

Huntington, West Virginia Police De-

partment, was investigating a rash of

window breakings and vandalisms com-

mitted in the downtown area. Around

1:40 A.M. on November 24, 1976, the

App. 4

officer observed Constantine leave his

car, walk to a parked van with Ohio

license plates and talk to the driver.

Sloan drove a short distance beyond,

then decided to return to where he had

seen Constantine. Sloan was generally

familiar with the people who frequented

this part of Huntington late at night,

but had never seen the defendant pre-

viously and no one else was on the

street. Nearing him the patrolman

stopped his car and motioned to the

ar

defendant, who was standing across

the street, to come to the car. The

officer's intention was to check for

identification, to ask where Constantine

had been and to ascertain why he was

on the street at that late hour.

Constantine complied with the officer's

request and walked over to the patrol

App. 5

car and leaned down to talk to the of-

ficer through the window. Sloan could

then see a plastic bag containing a

greenish, leafy substance protruding

from a pocket inside Constantine's

open ski jacket. The officer, recog-

nizing the substance as apparently

marijuana, reached through the window

and into the pocket, removed the bag

and found it did contain marijuana.

Whereupon he got out of his vehicle,

placed Constantine under arrest for

possession of marijuana, at the same

time informing him of his Constitu-

tional rights. The defendant was

searched at the arrest site and a bag

containing cocaine was found in his

pocket.

We hold that the officer was then

pursuing his duty, in that he was

App. 6

investigating crime in the area when he

asked Constantine to approach the car

and identify himself. In these cir-

cumstances the public interest must, of

course, de weighed with the intrusion

upon individual liberty, the result of

stopping the pedestrian. Obviously,

the interference here was no more

than modest. The question is one of

fact and each incident necessarily

turns on its own peculiar facts.

In Terry v. Ohio, 392 US 1, 21

(1968). The Court found that the

governmental concern in curtailing

crime would permit a police officer

in appropriate circumstances to

“approach a person for purposes of

investigating possibly criminal be-

havior even though there is no pro-

bable cause to make an arrest."

App. 7

Id. at 22. The Court in United States v.

Brignoni-Ponce, 422 US 875 (1975) held

that probable cause was not required

for a brief investigative stop of a

car suspected of transporting illegal

aliens. It said that a reasonable

suspicion that the car contained il-

legal aliens would support this

‘minimal intrusion". Id. at 881.

The minimal intrusion of an investi-

gative stop is Constitutionally per-

missible if "the police officer (can)

point to specific and articulable

facts which, taken together with

rational inferences from those facts,

reasonably warrant that intrusion."

Terry v. Ohio, 392 US at 21. See

United States v. Brignoni-Ponce,

422 US at 884. Officer Sloan's in-

vestigative stop is consistent with

App. 8

this criterion. See United States v.

Bull, No. 77-1315 (4 Cir. November,

1977).

Assessing the need for a brief ston,

"the circumstances before (the officer)

are not to be dissected and viewed

singly; rather they must be considered

as a whole."

United States v. Hall, 525 F 2d 857,

859 (D.C. Cir. 1976). Officer Sloan

knew the section where he observed

Constantine had a high incidence of

vandalism. An area's disposition

toward criminal activity is an arti-

culable fact. United States v.

Brignoni-Ponce, 422 US at 884-885.

The mood of the precinct and the cir-

cumambient activities before Officer

Sloan "are to be viewed through the

eyes of a reasonable and cautious

App. 9

police officer on the scene, guided

by his experience and training".

United States v. Hall, 525 F 2d at

859. See United States v. Magda,

547 F 2d 756, 758 (2 Cir. 1976).

The order appealed from is reversed,

and the case remanded to the Dis-

trict Court for further proceedings

not inconsistent with this opinion.

Reversed and Remanded.

App. 10

EXHIBIT B

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF WEST VIRGINIA

HUNT INGTON

UNITED STATES OF AMERICA, Plaintiff

Vv.

MARK LEWIS CONSTANTINE, Defendant

Criminal No. 77-30002

ORDER

On the 7th day of March, 1977, came

the United States of America, by its

counsel, E. Leslie Hoffman, III, Assis-

tant United States Attorney for the

Southern District of West Virginia,

and the defendant Mark Lewis Constan-

tine, by his counsel, William L.

Redd and Roger Turrell, an attorney

appearing for the defendant in this

matter only, upon the defendant's

motion to suppress evidence.

The Court, after argument of counsel

App. 11

in support of the said motion, and

argument in opposition to said motion,

and upon mature consideration of the

facts herein, including, but not

limited to, the transcript of the pre-

liminary hearing in this matter con-

ducted before the magistrate on

January 13, 1977, is of the opinion

to, and does hereby, grant the said

motion to suppress.

In elaborating on the Court's

oral ruling of March 7, 1977, this

Court is of the opinion that the

police officer did not have I-gal

justification to stop Constantine.

As stated in Terry v. Ohio, 392 U.S.

1, 21 (1968), “in justifying the

particular intrusion the police of -

ficer must be able to point to speci-

fic articulable facts which, taken

App,. 12

together with rational inferences

from those facts, reasonably warrnt

the intrusion."' The reasons given

by the officer for the stop was that

there had been some vandalism re-

ported, that he had never seen Con-

stantine before on his "beat", and

that it was 1:30 A.M.

The Court finds nothing signifi-

cant about a man being on a downtown

Huntington street at 1:30 A.M. The

fact that the officer had never seen

Constantine is also insignificant,

particularly in view of the fact

that Constantine lived less than a

block away from the point of the

stop. Finally, the vandulism oc-

curred several blocks from this area

and there appeared no "specific and

articulable" facts to link Constantine

App. 13

in any way with the vandalism. There-

fore, when the officer did see the bag

containing marijuana, he was not in a

justifiable position to do so. See

Harris v. United States, 390 U.S. 234,

236 (1968).

Accordingly, it is ORDERED that the

evidence seized pursuant to a search

of the defendant Mark Lewis Constantine,

be, and the same is, hereby suppressed,

and it is ORDERED that such evidence

may not be introduced against the

defendant at trial.

Whereupon the United States, by

counsel, moved the Court to continue

this matter generally in order to allow

the government to prosecute an appeal

pursuant to the provisions of Title 18,

United States Code, Section 3731.

The Court is cf the opinion to,

App. 14

and does hereby, grant said motion to

continue this case generally.

WHEREFORE IT IS ORDERED that this case

be, and the same is, hereby continued

generally.

The Clerk is directed to send a

certified copy of this order to all

counsel of record.

ENTER: 3/12/77

/s/ Charles H. Haden, II

Charles H. Haden, II

United States

District Judge

App. 15

CONSTITUTION OF THE UNITED STATES

AMENDMENT (IV)

(SEARCHES AND SEIZURES)

The right of the people to be

secure in their persons, houses,

papers and effects, against unrea-

sonable searches and seizures, shall

not be violated, and no Warrants

shall issue, but upon probable cuase,

supported by oath or affirmation,

and particularly describing the

place to be searched, and the per-

sons or things to be seized.

(duplicate)

App. 16

CERTIFICATE OF SERVICE

I hereby certify that on this 15th

day of February, 1978, three copies of

the Petition for Writ of C*rtiorari were

mailed, postage prepaid, to Solicitor

General, Department of Justice, Washing-

ton, D.C. 20530 and three copies to E.

Leslie Hoffman, III, Assistant United

States Attorney, United States District

Court, Charleston, West Virginia 25301.

I further certify that all parties re-

quired to be served have been served.

ROGER B. TURRELL § ASSOCIATES

CO., L.P.A.

,

By: es [aul (/

oge . lurrell

2305S Central Avenue

Middletown, Ohio 45042

(S13) 422-4508

COUNSEL FOR PETITIONER