# Petition — Arkansas v. Sanders

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1979
- **Citation:** 442 U.S. 753

## Text

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
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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
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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0928%3A1. Public record. Not legal advice.