# Petition — Constantine v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0496%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 435 U.S. 926 ## Text 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).