Petition — Arkansas v. Sanders

Freeh

APR 19 1978

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

No. 97-1497

I eee Petitioner

VS.

I NS NED oc vediscecscscscccctesnes Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF ARKANSAS

Birt. CLINTON

Attorney General of Arkansas

Josern H. Purvis

Assistant Altorney General

Justice Bur_pinc

Littte Rock, Arkansas 72201

AND

Joun Westey Haut, Jr.

Deputy Prosecuting Attorney

304 Putask! County CourTHoust

P. O. Box 1979

Littte Rocx, Arkansas 72203

Attorneys for Petitioner

Reg. No. 77-16248

50 Corims

Se

Page

Rd a ce Miele cédlcnss duck vesdeewulediee adhe 1

NS cies epadeGs uhteeees-o00ee onesie bsseeddvesabecstes 1

III. Question Presented ................ Wened-oen 440s «Gea sae cable kde 2

IV. Constitutional Provision Involved ...................000.00000... 2

i EE aie whida a bo o'n'o360 6.040 6oecee peer ceaeaeete 2

ee ED el icdenccdcccstevetussudececacs 6

A. The judgment below is in conflict

EE SETI LIE TT 6

B. The decision below conflicts with

decisions of the United States

Courts of Appeal and the highest

Se ors gues heii sWaN Ved és en cdsvaNodenv' 13

ee Ls cb fenced dhadeb eens Sede dedcutvecedvedbidescs 15

EE hin ob 6s bob ns Cxnk dk acc cagenleite Wes Oho Vee es aden Anan la

CITATIONS

CASES:

Cady v. Dombrowski, 413 U.S. 433 (1973) .. 2.2.2... ccc cece eee 9

ee dn pawns ldecevcbesebatsevdide 6

Carvoli v. United States, 267 U.S. 132 (1925) ..... 2.2... ccc eens. 6

Chambers v. Maroney, 399 U.S. 42 (1970) ...... 6... ccc cece eee eee ees 6

Commonwealth v. Scull, 200 Pa. 122, 186 A. 2d

ve k ec entast covonntiss 14

Coolidge v. New Hampshire, 403 U.S. 443 (1971) ©. 0000 oo cee ne 5

Peal v. State, 232 Md. 329, 193 A. 2d 52 (1963) ...............00055. 14

People v. Brajevich, 174 Cal. App. 2d 438,

ee eee ees Cr ngce) doncke béusdiereseanets 14

Peopie v. Krewchman, 37 N.Y. 2d 693, 376

ey Ge es Se HS Oe OEE GUSTO co cvccncdecwnvcctcnvenses 14

People v. Kremko, 52 Mich. App. 565,

218 N.W. 2d 112 (1974) ........ .. 14 l'mted States v. Issod, 508 F. 2d 990

People v. Lemmons, 40 N.Y. 2d 505, 387 ar Nr ty cot. domed. 5

N.Y.S. 2d 97, 354 N.E. 2d 836 (1976) 14 spl taced ier opeepnnhe

People v. Orlando, 305 Mich. 686, 9 N.W. — fp ag a9? F. o8 ‘

2d 893 (1943) ............ sa sian Se -cssienrslaaaeidahe erage

Sanders v. State, 262 Ark. 595, 559 S.W. United States v. Montgomery, 558 F. 2d

2d 704 (1977) 4 311 (5th Cir. 1977) (on rehearing

is et sagittis haart Cs after Chadwick; facts and prior

South Dakota v. Opperman, 428 U.S. 364 (1976) , 9 opinion ai 554 F. 2d 754) .......... 12

State in Interest of Wagster, 348 So. 2d United States v. Soriano, 497 F. 2d 147

. § = ., er _ 14 (5th Cir. 1974) (en banc), rea/-

, firmed without opimon sub nom.,

S I, / 2 92

> > ae anh, ons United States v. Aviles, 535 F. 2d

» & (19 2), cert. denied, 58 5 Ci 1976

409 US. 973 | 13 65 (St ir. ), cert. demed,

2 . 45 U.S.L.W. 3840 (Nos. 76-5132,

State v. Blood, 190 Kan. 812, 378 P 76-4143; June 27, 1977).......... 13

2d 54 9 vaca

iS 548 (1969) EE l'nited States v. Stene, Nos. 77-1335,

State v. Lee, 313 So. 2d 441 (Fla. App. 1975) 14 77-1424 (8th Cir., November 17,

Swonger v. Umted States, unreported below : 977), <i fr eeearng & 12

No. 76-2555 (6th Cir. 1977), summary at sath <phase ee? , sites

46 U.S.L.W. 3225, cert. dened, 46 U.S.L.W United States v. Tramunt, 513 F. 2d 1087

3470 (No. 77-314; January 24, 1978) . 13 (2d Cir. 1975), cert. demed,

Texas v. White, 423 US. 67 (1975) | ° EE Scotus nadeeséye cs en: ee 13

Ward v. State, 224 S.E. 2d 96 (Ga. App. 1976) 14 CONSTITUTIONAL PROVISIONS:

TOD ©. Se Can, Ce. App sé Fourth Amendment to the Constitution

486, 119 Cal. Rptr. 514 (1975), f the United Stat 2. passim

vacated on other grounds, 16 Cal. 3d a ae eee oe erencceneecensens -, ~

557, 128 Cal. Rptr. 641, 547 P. 2d

417 (1976) 0.2... 0.0.2. 14 Savwren

l'mted States v. Canada, 527 F. 2d 1374 , BIS TE) 8: eee dae seis 2

(%h Cir. 1975), cert. demed, Ark. Stat. Ann. § 82-2617............. bie. 4

429 U.S. 867 .... awaea soa

l'mted States v. Chadwick, 433 U.S. 1 (1977) a OTHER AUTHORITIES:

l'mted States v. Chuke, 554 F. 2d 260 Moylan, The Automobile Exception: What

(6th Cir. 1977) ..... es Pee ' 14 It Is and What It Is Not — A Rationale

: : ‘ : S | 4M

United States v. Finnegan, 568 F. 2d 637 (9th Cir. 1977) eae Oe Te en cco chee ee 8

l'mted States v. Giles, 536 F. 2d 136

(6th Cir. 1976) ..... Jetuestes 14

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

No.

ee cc ch scbebescoscecccceceeses Petitioner

vs.

i . cbc cesbeccctsceccccoces Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF ARKANSAS

Petitioner, the State of Arkansas, respectfully prays that a

Writ of Certiorari issue to review the judgment and opinion of

the Supreme Court of Arkansas entered in this proceeding

January 23, 1978.

1. OPINION BELOW

The opinion of the Supreme Court of Arkansas is reported

at 262 Ark. 595, 559 S.W. 2d 704 (1977) and is attached as

Appendix A. The record of the hearing on respondent's motion

to suppress held January 31, 1977 and his trial held February 3,

1977 is attached as Appendix B.

Il. JURISDICTION

The opinion of the Arkansas Supreme Court was filed

December 19, 1977. Petitioners’s petition for rehearing was

denied by that court and the judgment was entered on January

23, 1978. This Petition for a Writ of Certiorari was filed within

ninety days of that date. Jurisdiction of this court is invoked un-

der 28 U.S.C. § 1257 (3).

III. QUESTION PRESENTED

Whether a warrantless search of both an automobile trunk

and an immediate warrantless search of an unlocked suitcase

found therein where the search of both is based on probable

cause and exigent circumstances is reasonable and lawful under

the Fourth Amendment to the Constitution of the United

States.

IV. CONSTITUTIONAL PROVISION INVOLVED

The Fourth Amendment to the Constitution of the United

States provides:

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or af-

firmation, and particularly describing the place to be

searched, and the persons or things to be seized.

V. STATEMENT OF THE CASE

On April 23, 1976, Officer David Isom of the Little Rock

Police Department Narcotics Squad, acting upon information

provided by a confidential informant (T. 25-29), went to the

Little Rock Municipal Airport to set up surveillance for the

respondent, Lonnie James Sanders. (T. 25, 72). According to

the informant, respondent was scheduled to arrive that after-

noon in Little Rock on an American Airlines flight from Dallas,

Texas at 4:35 p.m. with a green suitcase carrying marijuana.

(T. 31) The informant told Isom that respondent had sent an

empty green suitcase to Dallas for the purpose of transporting

marijuana back to Little Rock. (T. 31). Accompanied by two

other plainclothes officers, Isom observed Sanders get off the

4:35 p.m. Dallas flight and proceed to the baggage claim area of

the terminal where Sanders met David Rambo. (T. 26, 74)

From a distance, the officers observed respondent wait at the

baggage area and pick up a green suitcase. He handed it to

Rambo, and he walked to the nearby cab stand ard got in 2 tax-

icab. (T. 26, 74) Rambo remained in the baggage area for a few

moments until the surrounding crowd dispersed, and then he

got in the taxicab with respondent. (T. 27, 76, 86) Rambo plac-

ed the green suitcase in the trunk of the taxicab (T. 93) amd the

cab left the airport.

Officer Isom and one of the others followed the taxicab as it

proceeded down East Roosevelt Road, a major arterial in Little

Rock. (T. 27, 76) The officers had requested assistance from a

marked police unit over their radio. The other police car

stopped respondent's taxicab on East Roosevelt several! blocks

from the airport. (T. 47, 76). The cab driver was asked out of

the cab and to open his trunk, and he did. Respondent and

Rambo were taken out of the cab by the police and placed

against the side of the vehicle. (T. 48) They were nat placed un-

der arrest at that point. (T. 48) In the trunk, the officers found

the green suitcase, and, without seeking anyone's consent, they

opened it (T. 35). It was unlocked. (T. 35) In the suitcase they

found what they suspected was (T. 43), anc later proved to be,

9.3 pounds of marijuana. (T. 147) Respondent Sanders and

4

Rambo were arrested and transported to the police department.

(T. 43) The cab driver was released.

On October 14, 1976, Sanders was charged by felony infor-

mation with possession of marijuana with intent to deliver in

violation of Ark. Stat. Ann. § 82-2617 (Repl. 1976), the Uniform

Controlled Substances Act. Sanders’ motion to suppress the

evidence found in the suitcase was denied after a hearing held

January 31, 1977. (T. 7) Sanders was tried by a jury and found

guilty on February 3, 1977 and sentenced to ten years in the

State penitentiary and fined $15,000. (T. 8, 9).

On appeal to the Arkansas Supreme Court, the conviction

was reversed because the search was held unreasonable under

the Fourth Amendment to the United States Constitution.!

Sanders v. State, 262 Ark. 595, 559 S.W. 2d 704 (1977), Appendix

A.

The court first held there was probable cause for the police

to believe there was a controlled substance in the green suit-

case when it was seized and searched under the Fourth Amend-

ment. The confidential informant gave detailed information

about the respondent's arrival at the Little Rock Airport on

April 23, 1976 (and the police corroborated all the details from

the informant by personal observation at the airport).

The court next held the search was not justified under the

automobile exception because the police took possession of the

suitcase even though the cab was on the street.

'The decision was based solely on the Fourth Amendment to the United

States Constitution. There were no state grounds involved. Sanders v. State, 262

Ark. 595, 599, 559 S.W. 2d 704, 706 (1977).

“(T]here is nothing in this set of circumstances that would

lend credence to an assertion of impracticality in obtaining

a search warrant, or support the State’s contention that

‘mobility of the object to be searched (the green suitcase)’

justified a warrantless search. See: * * * Coolidge v. New

Hampshire [403 U.S. 443].” Id., at 600, 559 S.W. 2d at 706.

The court added that there was a substantially greater expecta-

tion of privacy in a suitcase than an automobile under the

Fourth Amendment, and the suitcase was sufficiently out of

reach not to be within the search incident to an arrest doctrine.

Ibid.

The court finally stated that once the police had the suit-

case in their control, there was no longer any danger of loss or

destruction of evidence, and a warrant should have been ob-

tained.

“The initial seizure of appellant's suitcase, the validity of

which appellant does not contest, was sufficient to guard

against any risk that evidence might be lost. With the suit-

case safely immobilized it was unreasonable to undertake

the additional and greater intrusion of a search without a

warrant.” /d., at 601, 559 S.W. 2d at 707.

The court was apparently holding that on seizure of the suitcase

by the police on the street, exigent circumstances ceased to exist

even if there were exigent circumstances for seizure of the vehi-

cle. (Compare id., at 599, 559 S.W. 2d at 706.) Therefore, a

warrant was required under the Fourth Amendment to the

Constitution of the United States.

VI. REASONS FOR GRANTING THE WRIT

A. THE JUDGMENT BELOW IS IN CONFLICT WITH THE

DECISIONS OF THIS COURT.

The decision of the Supreme Court of Arkansas in this

case, 262 Ark. 595, 559 S.W. 2d 704 (1977), on the question of

the scope of a warrantless search of an automobile with

probable cause and exigent circumstances is in conflict with the

decisions of this court in Chambers v. Maroney, 399 U.S. 42

(1970), Carroll v. United States, 267 U.S. 132 (1925), and Cardwell

v. Lewis, 417 U.S, 583 (1974). The Arkansas Supreme Court in-

correctly applied United States v. Chadwick, 433 U.S. 1 (1977),

and Coolidge v. New Hampshire, 403 U.S. 443 (1971), to the facts

of this case and held the immediate search of the unlocked suit-

case in the trunk of the taxicab on a city street required a

warrant notwithstanding probable cause and exigent cir-

cumstances for the initia! seizure. The Arkansas court held, in

effect, there were no exigent circumstances to substantiate the

search of the suitcase after the seizure by the police reduced the

suitcase to their exclusive control because the seizure of the suit-

case dissipated exigent circumstances. Therefore, the court held

the search of the suitcase without a warrant was unreasonable

according to Fourth Amendment standards.

The automobile exception to the warrant requirement of

the Fourth Amendment was originally outlined in Carroll v.

United States, supra, 267 U.S. 132. The two necessary conditions

for such a search are probable cause to believe the vehicle is

transporting contraband or illegal merchandise and exigent cir-

cumstances because of the mobility of the vehicle. /d., at 154,

156. Carroll also clearly distinguished the search under the

automobile exception from a search incident to an arrest. /d., at

158-159; see also Chambers, supra, at 47.

Much later, the court more clearly defined the automobile

exception as to the exigency requirement in Chambers v. Maroney,

supra, 399 U.S. 42. The court there held that when there was

probable cause to believe the vehicle was involved in crime and

evidence of the crime was in the vehicle and the vehicle was seen

on the city streets by the police, there were exigent cir-

cumstances for a search and seizure. /d., at 51-52. A search on

the street could have been impractical and possibly unsafe. /d.,

at 52.

In Chambers, the court also held that under the automobile

exception, given a lawful seizure, a search is permissible.

‘‘Arguably, because of the preference for a

magistrate’s judgment, only the immobilization of the car

should be permitted until a search warrant is obtained;

arguably, only the ‘lesser’ intrusion is permissible until the

magistrate authorizes the ‘greater.’ But which is the

‘greater’ and which is the ‘lesser’ intrusion is itself a

debatable question and the answer may depend upon a

variety of circumstances. For constitvtional 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 im-

mediate search without a warrant. Given probable cause to

search, either course is reasonable under the Fourth

Amendment.” /d., at 51-52.

And see Texas v. White, 423 U.S. 67 (1975). Under Chambers and

the automobile exception, there is no constitutional qualitative

difference between a search and a seizure — given a valid

seizure under the automobile exception, a valid search is per-

missible. See Moylan, The Automobile Exception: What It Is and

What It Is Not — A Rationale in Search of a Clearer Label, 4 Mercer

L. Rev. 987, 1002-1003 (1976).

Here, the officers had probable cause to believe respondent

was Carrying marijuana in the green suitcase. Respondent and

his accomplice walked to a taxicab and left the airport. The of-

ficers called for assistance in stopping the cab, and it was

stopped on a busy street off the airport grounds during rush

hour. The cab driver was asked to open the trunk, and respori-

dent and his accomplice were gotten out of the cab and stood

next to it. They were not yet under arrest. In the trunk, the of-

ficers saw the green suitcase. They reached inside the trunk and

immediately opened the suitcase. It was unlocked, and they

found 9.3 pounds of marijuana in it. There were clearly exigent

circumstances for the search and seizure under Chambers v.

Maroney and Carroll v. Umited States.

Furthermore, the officers knew that respondent was met at

the airport by an accomplice, and they could reasonably suspect

others could have been waiting in another car to follow respon-

dent to his destin&tion. The officers called for the assistance of a

marked patrol car. The detention on the street was brief but

adequate to determine that respondent and his accomplice

should be arrested. Under Chambers, the vehicle could have been

transported to the stationhouse. However, the police also did

not want to detain the cab driver unless necessary. In this situa-

tion, the lesser intrusion on personal privacy of all concerned

was the immediate search on the street during the detention

with probable cause rather than requiring the police to arrest,

transport, book and fingerprint respondent, his accomplice,

and, possibly, the cab driver and then seek a search warrant for

the suitcase.? The officers had the lawful authority to seize and

search the car. It is illogical to also allow them to seize the suit-

case under Carroll and Chambers but deny them the opportunity

to search it at the time of the search of the taxicab when

probable cause and exigent circumstances still exist. It is sub-

mitted the Arkansas court erred in suppressing the evidence un-

der the Fourth Amendment under Carroll v. United States and

Chambers v. Maroney. See also Texas v. White, 423 U.S. 67 (1975).

The decision of the Arkansas court that there were no ex-

igent circumstances also conflicts with Cardwell v. Lewis, 417

U.S. 583, 595-596 (1974):

“Assuming that probable cause previously 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 circumstances are foreclosed if a

warrant was not obtained at the first practicable 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. Cf. Chambers, id., at

50-51. The exigency 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

2[t is important in this case that the search of the suitcase while the taxicab

was stopped on the street was short and immediate. The officers had probable

cause to believe marijuana was in the suitcase in the trunk. The intrusion was

brief, direct, and no more than was necessary to determine respondent should

be arrested. This intrusion is different that that involved in a search at night

(Chambers, supra) or a complete search of an automobile looking for fingerprints,

tireprints, or microscopic sweepings or scrapings (see Cardwell, supra) or con-

ducting an inventory (South Dakota v. Opperman, 426 U.S. 364 (1976); Cady v.

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

10

necessitating prompt police action.’’ {Footnote omitted]

The Arkansas court held that while there were exigent cir-

cumstances for the seizure, there was adequate time to secure a

warrant for the suitcase, and the exigent circumstances for the

search of the suitcase were dissipated by the police taking con-

trol of the suitcase (relying on Chadwick). Here, probable cause

and exigent circumstances arose together as Sanders picked up

the suitcase at the Little Rock airport and got into a cab. Ex-

igent circumstances do not evaporate just because of the fact the

officers opened the suitcase in the trunk of the cab when they

just determined they had probable cause to believe contraband

was in it. This holding conflicts with Cardwell v. Lewis and

Chambers v. Maroney. See Texas v. While, supra, 423 U.S. 67.

2.

The decision below improperly applied the warrant re-

quirement of United States v. Chadwick, 433 U.S. 1 (1977), and

Coolidge v. New Hampshire, 403 U.S. 443 (1971), to the search of

the suitcase contemporaneous with the search of the trunk.

U/nited States v. Chadwick involved a search incident to an

arrest. The footlocker in Chadwick was seized and removed to a

building for a search. The court held that, having been im-

mobilized at another location, the footlocker was subject to the

warrant requirement of the Fourth Amendment. /d., at 13. The

court rejected the contention the footlocker, by the fact of its

mobility, was subject to the automobile exception to the Fourth

Amendment when it was in the exclusive control of the police.

Ibid.

Goolidge v. New Hampshire, 403 U.S. 443 (1971), involved a

vehicle parked at a home for which the police had probable

cause to search for weeks and was impounded. Thus, the court

held there was no exigency for a search without a warrant under

the automobile exception when the police knew the car was go-

ing nowhere. This case differs because there clearly were ex-

igent circumstances from the time Sanders grabbed the suitcase

and headed for the cab. Exigent circumstances obtained here

under Chambers and Carroll, and exigent circumstances do not

legally dissipate under Chambers, Texas v. While, supra, and

Cardwell v. Lewis, supra. Coolidge is distinguishable because the

search there never involved exigent circumstances.

The Arkansas court held below that there were no exigent

circumstances because (1) the suitcase itself, because of its

mobility, was not within the automobile exception of the

warrant requirement of the Fourth Amendment under

Chadwick, and (2), under Chadwick, a warrant was required dur-

ing this automobile search for the suitcase when the suitcase

was in the possession of the police even though possession was

at the scene of the seizure.’

The Arkansas court erred in holding this case was a search

incident to an arrest under United States v. Chadwick rather than

an automobile search under Chambers v. ‘4aroney and Carroll v.

United States. The court’s holding blends the automobile excep-

tion and the search incident doctrine together, and the result

emasculates the automobile exception to the Fourth Amend-

ment in Arkansas. Even an automobile can sometimes be reduc-

*The parties, however, never even argued the second proposition. Respon-

dent, conceding probable cause, argued that the exigent circumstances require-

ment of the automobile exception was not present because of the officers’ prior

knowledge of his arrival at the airport. The State argued this case involved an

automobile search under Chambers and Carroll for which there were exigent cir-

cumstances. Neither party considered Chadwick applicable, and it was not

argued.

OC

12

ed to complete control of the police by impoundment and

storage. The next step in Arkansas is to eliminate the

automobile exception to the Fourth Amendment entirely. The

decision of the Arkansas court is erroneous in its application of

Chadwick and Coolidge and in the ignoring of the automobile ex-

ception to the Fourth Amendment as to the search of the suit-

case contemporaneous with the search of the trunk on a city

street. This case simply does not involve a search incident to an

arrest or a lack of exigency.

Since the decision in United States v. Chadwick, the Fifth,

Eighth, and Ninth Circuit United States Courts of Appeal have

held that Chadwick does not apply to the automobile exception

to the Fourth Amendment. See United States v. Montgomery, 558

F. 2d 311 (5th Cir. 1977) (on rehearing after Chadwick ; facts and

prior opinion at 554 F. 2d 754); United States v. Stevie, Nos. 77-

1335, 77-1424 (8th Cir., November 17, 1977), motion for rehearing

en banc granted;* United States v. Finnegan, 568 F. 2d 637 (9th Cir.

1977). Each of these decisions upheld a warrantless search of

luggage contemporaneous with a warrantless search of an

automobile under the automobile exception to the Fourth

Amendment. They held that luggage can be searched because it

is in the car; not necessarily because luggage is itself mobile.

United States v. Stevie is almost factually identical to this case.

3.

The decision of the Arkansas court below conflicts with

other actions of this court in denying certiorari in several cases

upholding searches of briefcases, suitcases, and other containers

found during a warrantless search of an automobile under the

‘Motion for rehearing en banc granted January 6, 1978. Oral argument

scheduled for April 6, 1978.

13

automobile exception to the Fourth Amendment: Swonger v.

United States, unreported below, No. 76-2555 (6th Cir. 1977)

summary at 46 U.S.L.W. 3225, cert. denied, 46 U.S.L.W. 3470

(No. 77-314; January 24, 1978); United States v. Soriano, 497 F. 2d

147 (Sth Cir. 1974) (en banc), reaffirmed without opinion sub nom.;

United States vy. Aviles, 535 F. 2d 658 (5th Cir. 1976), cert. denied,

45 U.S.L.W. 3840 (Nos. 76-5132, 76-5143; June 27, 1977).

United States vy. Tramunti, 513 F. 2d 1087 (2d Cir. 1975) poe

denied, 423 U.S. 832; United States v. Canada, 527 F. 2d 1374 (9th

Cir. 1975), cert. denied, 429 U.S. 867; United States v. Issod, 508 F.

2d 990 (7th Cir. 1974), cert. denied, 421 U.S. 916: State v. Birdwell

6 Wash. App. 284 (1972), cert. denied, 409 U.S. 973. 7

B. THE DECISION BELOW CONFLICTS WIT

; ; H

DECISIONS OF THE UNITED STATES COURTS OF

APPEAL AND THE HIGHEST COURTS

STATES. Pe

I. Numerous other appellate courts have considered the

question raised in this case, and they have uniformly held that a

warrantless search of luggage or other containers during a

warrantless search of an automobile conducted under the

automobile exception to the warrant requirement of the Fourth

Amendment is lawful:

COURTS OF APPEAL: See, ¢.g.: United States v. Tramunti,

513 F. 2d 1087, 1104-1105 (2d Cir. 1975), cert. denied, 423 U.S.

832; United States v. Soriano, 497 F. 2d 147 (5th Cir. 1974) (en

banc), reaffirmed without opinion sub nom., United States v. Aviles, 535

r. 2d 658 (Sth Cir. 1976), cert. denied, 45 U.S.L.W. 3840 (Nos.

76-5132, 76-5143; June 27, 1977); United States v. Montgomery,

558 F. 2d 311, 312 (Sth Cir. 1977) (on rehearing after Chadwick;

facts and prior opinion at 554 F. 2d 754); United States v.

14

McGarrity, 559 F. 2d 1386, 1387-1388 (Sth Cir. 1977); United

States v. Chuke, 554 F. 2d 260, 262-264 (6th Cir. 1977); United

States v. Giles, 536 F. 2d 136, 140 (6th Cir. 1976); United States v.

Issod, 508 F. 2d 990, 993 (7th Cir. 1974), cert. denied, 421 U.S.

916; United States v. Stevie, (No. 77-1335, 77-1424; November 17,

1977), motion for rehearing en banc granted*; United States v. Canada,

527 F. 2d 1374, 1380 (9th Cir. 1975); cert. denied, 429 U.S. 867;

United States v. Finnegan, 568 F. 2d 637, 640-641 (9th Cir. 1977).

STATE COURTS: People v. Areichman, 37 N.Y. 2d 693, 376

N.Y.S. 2d 497, 339 N.E. 2d 182 (1975); People v. Lemmons, 40

N.Y. 2d 505, 387 N.Y.S. 2d 97, 354 N.E. 2d 836 (1976); State v.

Birdwell, 6 Wash. App. 284, 492 P. 2d 249, 253 (1972), cert.

denied, 409 U.S. 973; Wimberly v. Superior Court, 45 Cal. App. 3d

486, 119 Cal. Rptr. 514, 519-521 (1975), vacated on other grounds,

16 Cal. 3d 557, 128 Cal. Rptr. 641, 547 P. 2d 417 (1976); People

v. Brajevich, 174 Cal. App. 2d 438, 344 P. 2d 815 (1959); State v.

Lee, 313 So. 2d 441 (Fla. App. 1975); People v. Orlando, 305

Mich. 686, 9 N.W. 2d 893 (1943); People v. Kremko, 52 Mich.

App. 565, 218 N.W. 2d 112, 115 (1974); State in Interest of

IWagster, 348 So. 2d 751 (La. 1977); Peal v. State, 232 Md. 329,

193 A. 2d 52 (1963); State v. Blood, 109 Kan. 812, 378 P. 2d 548

(1963); Commonwealth v. Scull, 200 Pa. 122, 186 A. 2d 854 (1962),

cert. denied, 376 U.S. 928.

2. The only decision appearing to support the decision of

the Arkansas court is Ward v. State, 224 S.E. 2d 96, 98 (Ga. App.

1976), stating in dictum that it was correct that the police did

not look in a money bag during the search of the trunk of an

automobile.

§See note 4, supra.

15

Vil. CONCLUSION

The Petition for a Writ of Certiorari should be granted.

Respectfully submitted.

Bit. Cuntron

Attorney General of Arkansas

Joseru H. Purvis

Assistant Attorney General

Justice Burpine

Lirtte Rock, ARKANSAS 7220]

AND

Joun Westey Hatt. Jr.

Deputy Prosecuting Attorney

304 Putaski County Courtnouse

P.O. Box 1979

Littte Rock, ArkANsas 72203

Attorneys for Petitioner

la

APPENDIX A

Lonnie James SANDERS v. STATE of Arkansas

CR 77-171

Opinion delivered December 19, 1977

(Division 1)

Appeal from Pulaski Circuit Court, Fourth Division,

Richard B. Adkisson, Judge; reversed and remanded.

McArthur & Johnson, for appellant.

Bill Clinton, Atty. Gen., by: Robert 7. Govar, Asst. Atty.

Gen., for appellee.

Georce Howarp, Jr., Justice. The fundamental inquiry

to be made by the Court in this case is whether or not the

warrantless search of appellant's suitcase by Little Rock

a officers is reasonable under the circumstances in-

volved.

FACTS

Appellant, Lonnie James Sanders, was charged by infor-

mation by the Prosecuting Attorney of the Sixth Judicial

District with possession of a controlled substance (mari-

juana) with intent to deliver in violation of Act 590 of 1971, as

amended.

The charge was the culmination of an intensive sur-

veillance of appellant by the Little Rock Police Department,

hereafter referred to as the police, just prior to and during his

scheduled arrival at the Little Rock Municipal Airport on

April 23, 1976.

The police had been advised by a confidentia! informant

some time prior to April 23, 1976, that appellant had sent an

2a ‘3

empty green suitcase to Dallas, Texas, on a flight and that in

a day or two, appellant would go to Dallas to pick up the suit-

case and that the suitcase would be containing marijuana.

On the morning of April 23, 1976, the informant advised

the police that appellant would be arriving at the Municipal

Airport of Little Rock, Arkansas, at 4:35 p.m. on April 23.

1976, and would deplane at Gate 1 and that appellant would

have the green suitcase containing the contraband.’ The

police set up a surveillance at the Municipal Airport awaiting

the arrival of appellant. As appellant exited Gate 1, appellant

was observed carrying two bags and immediately existed the

terminal and placed the two Sees in the trunk of a waiting

taxicab. Appellant returned to the luggage area inside the

terminal and took a green suitcase from the luggage rack and

passed it to one David Rambo. Appellant immediately left

the terminal and got into the compartment of the cab. Ram-

bo waited inside the terminal near the luggage area a few

minutes and he me exited the terminal and placed

the green suitcase in the trunk of the cab and took a seat in

the compartment of the vehicle. As the taxi departed the air-

port, the police followed in an unmarked vehicle. As the cab

proceeded down East Roosevelt Road, a separate unit of the

police, upon request of the officers following the taxi, stopped

the taxicab and the officers following the cab requested the

cab driver to open the trunk of the vehicle. Another officer

directed appellant and Rambo to step out of the vehicle and

stand to the side of the taxicab; police officers, without the

consent of the appellant or Rambo, opened the green suitcase

and found 9.3 pounds of marijuana. Appellant and Rambo

were then placed under arrest and appellant was placed in

one police unit and Rambo in another and were taken to the

Little Rock Police Department.

On January 31, 1977, a hearing was conducted on

appellant's Motion to Suppress the evidence which was

1The informant had supplied information to the police in the past

which had proven to be reliable and rewarding in the police's effort to cope

with the drub problem.

3a

denied by the triai court.

On February 3, 1977, appellant was found guilty by a

jury as charged and was given ten years in the

Correction and a fine of $15,000.00. ee

APPELLANT'S CONTENTIONS

Appellant alleges the following as the grounds for rever-

sal of his convicticn:

1. The trial court erred in denying appellant's Mo-

tion to Suppress the evidence gained as a result of an il-

legal search.

2. The trial court erred in allowing the co-

defendant to present evidence of a statement allegedly

made by appellant and further erred in allowing the co-

defendant to present rebuttal evidence directed toward

appellant.

3. The trial court erred in admitting into evidence

- — of this charge when it was not properly iden-

THE SEARCH

Appellant’s contention that the warrantless search of his

green suitcase, under the existing circumstances, was un-

reasonable and consequently in violation of the Fourth

Amendment to the United States Constitution has merit. We

conclude that the trial court erred in denyin appellant's Mo-

tion to Suppress the evidence confiscated from the suitcase

and, therefore, appellant’s conviction is reversed.

It is well recognized that warrantless searches are per se

unreasonable unless they fall within some established excep-

tion to the warrant requirement of the Fourth Amendment to

the United States Constitution. One of these exceptions is

4a

probable cause coupled with exigent circumstances. But

probable cause alone is insufficient for a warrantless search to

square the mandate of the Fourth Amendment against un-

reasonable searches. United States v. Chadwick, US. ‘

97 S. Ct. 2476; Coolidge v. New Hampshire, 403 U.S. 443, 91 S.

Ct. 2022; Horton v. State, 262 Ark. 211, 555 S.W. 2d 226; Perez

v. Stale, 260 Ark. 438, 541 S.W. 2d 915.

The information supplied to the police by the confiden-

tial informant is adequate to support the State’s claim that

the police had probable cause to believe that appellant's

green suitcase contained a controlled substance when the

police confiscated the suitcase and opened it. For the con-

fidential informant, who had supplied reliable information in

the past, had advised the police of appellant’s mode and

manner of transporting marijuana into the state; the police

were given the type and color of the suitcase that was being

used by the appellant; the approximate date that the empty

suitcase was sent to Dallas was supplied to the police; the

date and time of appellant’s arrival at the Little Rock

Municipal Airport was within the immediate knowledge of

the police; the name of the commercial airline, as well as the

flight number that appellant would be traveling on was

revealed to the police by the informant; and the police were

also told the gate number that appellant would exit when he

deplaned.

Moreover, appellant, at the time, was a resident of Little

Rock and was no stranger to the police. The search of the

green suitcase can not be justified under the “automobile ex-

ception” as claimed by the State. It must also be remembered

that appellant’s mode of transportation from the Little Rock

Municipal Ai was by a local taxicab; the green suitcase

was locked in the trunk of the taxicab?; the police took posses-

sion of the suitcase while appellant was in the compartment

?The evidence in this case supports the conclusion that the relationship

between the suitcase and the taxicab is coincidental, and the suitcase was

not a part of the area from which appellant might gain possession of a

weapon or destroy the evidence contained in the suitcase See: Chimel v.

Califorma, 395 U.S. 752, 763 (1969).

Sa

of the taxicab and appellant was later taken into immediate

custody and pla in a police car; the confiscation of

appellant’s suitcase took place shortly after 4:35 p.m. ina

metropolitan area. Indeed, there is nothing in this set of cir-

cumstances that would lend credence to an assertion of im-

practicality in obtaining a search warrant, or support the

State’s contention that “mobility of the object to be searched

(the green suitcase)” justified a warrantless search. See: Perez

v. Stale, supra; Tygart v. State, 248 Ark. 125, 451 S.W. 2d 225.

cert. den. 400 U.S. 807, 91 S. Ct. 50; Coolidge v. New

Hampshire, supra.

_ To paraphrase the Unied States Supreme Court’s obser-

vation in United States v. Chadwick, supra, the factors which

diminish the privacy aspects of an automobile do not apply to

appellant’s suitcase. Luggage contents are not open to public

view, except as a condition to a border entry or common

carrier travel; nor is luggage subject to regular inspections

and official scrutiny on a continuing basis. Unlike an

automobile, whose primary function is transporiation,

luggage is intended as a repository of personal effects. In sum,

a person's expectations of privacy in personal luggage are

substantially greater than in an automobile.

Nor does the suitcase’s mobility justify dispensing with

the added protections of the Waren Geum Once the Little

Rock police had seized appellant's suitcase from the trunk of

the taxicab and had the suitcase under their exclusive con-

trol, there was not the slightest danger that the suitcase or its

contents could have been removed before a valid search

warrant could be obtained. The initial seizure of appellant's

suitcase, the validity of which appellant does not contest, was

sufficient to guard against any risk that evidence might be

lost. With the suitcase safely immobilized, it was un-

reasonable to undertake the additional and greater intrusion

of a search without a warrant.

CO-DEFENDANT OFFERS AS EVIDENCE

STATEMENT ALLEGEDLY MADE BY APPELLANT

ba

Over strenuous objections of appellant, on the grounds

of relevancy, the trial court permitted Jonas Rambo to offer

the following evidence in support of appellant's co-defendant,

David Rambo. “He (appellant) told me if I'd let David (the

co-defendant) take the rap for a year, he’d get him out of jail.

First told me he had a lawyer for both of them, then went to

court and found he didn’t have a lawyer for David, but he

told me if I'd let David take the rap for both of them he would

go ahead. He'd make enough money to get a good lawyer and

get him out.”

We hold that the trial court did not commit error in ad-

mitting this testimony inasmuch as the testimony was quite

relevant inasmuch as David Rambo, in testifying in his own

behalf, corroborated the testimony of law enforcement of-

ficers as to what transpired at the airport after appellant and

the co-defendant arrived from Dallas. It was David Rambo’s

contention that appellant was completely unknown to David

Rambo before the two men met at the Dallas, ‘lexas, airport,

while on the other hand, appellant claimed that he and David

Rambo were cousins, and that he had no knowledge that the

suitcase contained marijuana, but he had agreed to carry the

bag once the two reached Little Rock in return for $5.00 that

appellant had agreed to pay him. It is obvious that David

Rambo was seeking to convince the jury that he had par-

ticipated in the drug running operation unknowingly and

that his only function in the scheme was to take the rap for

appellant in this case appellant’s activities were exposed and

criminal charges resulted. Moreover, appellant specifically

claimed that he had never seen the suitcase containing the

drugs until Rambo placed the suitcase in the taxicab to be

used in leaving the airport. In addition, Jonas Rambo sup-

ported his son’s (David Rambo) testimony and rebutted the

testimony of appellant. Jonas Rambo testified that, contrary

to appellant's contention, the two defendants were not

related. See: Rule 401, Arkansas Uniform Rules of Evidence.

Appellant also claims that the trial court committed

error in permitting Jonas Rambo to testify in behalf of his

7a

son, David Rambo, after David Rambo and appellant had

completed presenting evidence in support of their respective

cases. This contention is without merit inasmuch as it is well

settled that a large discretion is vested in the trial judges as to

the time of introducing testimony. Consequently, reversals

will not be ordered unless it is shown that this discretion has

been abused to the prejudice of the objecting party. No pre-

judice has been demonstrated. See: Marks v. S

881, 95 S.W. 2d 634. eS. See, AS £08.

Reversed and remanded.

We agree: Harris, C.].. and Focirman x

Hickman, J]. J., and Focieman, Horr, and