Petitioners Brief — Arkansas v. Sanders

Supreme Court, U. &

FILED

NOV 24 1978

IN THE ~ MICHAEL FETHK, IR. CLERK

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

No. 77-1497

Ys oo el eh caaseuunes ..... Petttioner

vs.

ee i ubeeees Respondent

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF ARKANSAS

BRIEF FOR PETITIONER

Birt CLINTON

Altorney General

State of Arkansas

Joserpu H. Purvis

Deputy Attorney General

Justice Buitpinc

Littte Rock, ArRKaANsas 72201

AND

Joun Westey Ha t, Jr.

Deputy Prosecuting Attorney

304 Purasxi County CourTHouse

P. O. Box 1979

Littte Rock, Arkansas 72203

Attorneys for Petitioner

Req. No. 78-5268 50 Copies

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A. THE ARKANSAS SUPREME COURT ERRED IN HOLDING

THE WARRANTLESS SEARCH OF THE RESPONDENT'S

GREEN SUITCASE TO BE UNREASONABLE ................ 8

B. THE WARRANTLESS SEARCH OF RESPONDENT'S GREEN

SUITCASE WAS REASONABLE AS MADE PURSUANT TO

THE AUTOMOBILE EXCEPTION .......... ccc cece cc cccees. 16

C. UNITED STATES V. CHADWICK, 433 US. 1 (1977)

IS INAPPLICABLE TO THIS CASE AND DOES NOT

RESTRICT A REASONABLE WARRANTLESS SEARCH

MADE PURSUANT TO THE AUTOMOBILE EXCEPTION

TO THE WARRANT CLAUSE OF THE FOURTH

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CITATIONS

CASES: Page

Aguilar v. Texas, 378 U.S. 108 (1964) ...... 2... cece e eee ennnnnes 19

Berry v. State of Arkansas, 263 Ark. 446, 565

BW. 36 GOB CIDVED 2. cccccccccseccscodescoccncanennenens 16, 31

Cady v. Dombrowski, 413 U.S. 433 (1973)... 6.6 eens 21

Cardwell y. Lewis, 417 U.S. 583 (1974) ©... 0 0.6 cece cece 12, 21, 22, 23

Carroll v. United States, 267 U.S. 132 (1925) .... 11, 13, 17, 20, 21, 24, 30

Chambers v. Maroney, 399 U.S. 42 (1970) ..-11, 12, 13, 14, 15, 17, 18, 19,

20, 21, 22, 23, 24, 25, 30

Chimel v. Califorma, 395 U.S. 752 (1971) 2... cece eens 12, 29

Coolidge v. New Hampshire, 403 U.S. 443 (1971) ......... 4, 13, 21, 28, 30

Cooper vy. Califorma, 386 U.S. 58 (1967)... 2.6.6. 16, 20

Pennsylvama v. Mimms, 434 U.S. 1061 (1977) .........6 666666600000... R

People v. Krewchman, 37 N.Y. 2d 693, 376 N.Y.S.

2d 497, 399 N.E. 38 162 (9975)... nc sccccccncces wee seabaoeed 26

People v. Lemmons, 40 N.Y. 2d 505, 387 N.Y.S.

26 97, 386 10.B. 36 GBS (IOFED. .... vvcccedevcccsscsecesteccenen 26

Preston v. United States, 386 U.S. 364 (1964) ©. 2.66 ens 29

Sanders v. State of Arkansas, 262 Ark.

595, 559 S.W. 2d 704 (1977) ............ 1, 4, 5, 8, 9 13, 14, 15, 21

South Dakota v. Opperman, 428 U.S. 364 (1976) 2.0. ccs 20

Swonger v. Umted States, unreported below

(6th Cir. 1977), cert. denied, 46 U.S.L.W.

TT <1dldcseepeus: ae oe 26

oo oc cas opeseecteseocoeesess 29

eo ok eee obs ecesicccesoes OE

U'mted States v. Aviles, 535 F. 2d 658

(Sth Cir. 1976), cert. denied, 433 U.S. 911,

ee eee e cad egsedneeceeeeceess .. 2%

U/mied States vy. Canada, 527 F. 2d 1374 (%th

Se I, MI, GP OL, GD occ ccccccccsecccccccccccs ae

t'mited States v. Chadwick, 433 U.S. 1 (1977) .. 6, 7, 8, 9, 10, 12, 13, 15, 16,

27, 28, 29, 30

U'neted States v. Ficklon and Seefeldt, unreported

below, (9h Cir. 1978), cert. denied 47

eee sed bak concstesceces cc cnaseeaehene Gt

‘

U'nted States v. Finnegan, 568 F. 2d 637

(%h Cir. 1977) ........ ere SF

U'mited States v. Gauliney, 581 Fo 2d 1137

(Sth Cie. 1976) ....... i eeduenedeskencéde cueseveses 15, 26

''mted States v. Giles, 546 F. 2d 1%

EEE Ee ay 26

('mted States v. Issod, 508 F. 2d 990 (7th

Gi. GOPGD, eure. Gamied G50 U.S. G06 2... ccc ccc cccsccccescccees

U'mted States v. McGarnty, 559 F. 2d 1386

ee Cie k ss cog neseoenasteccncneseses 26

United States v. McGarth, 448 F. Supp. 1338

ae 15

! ‘mted States v. Robinson, 414 US. 281 (1973)

! 'mied States v. Sonano, 497 ¥ 2d 147

(Sth Cir. 1974)

! ‘mted States ¥. Tramunt:, 513 F 2d 1087 (2nd

Cir 1975), cert. denied, 423 US. 832

MW'unberly v. Superior Court, 45 Cal. App. 2d 480,

119 Col. Rptr. 514 (1975)

UNITED STATES CONSTITUTION

FOURTH AMENDMENI

MISCELLANEOUS

Moylan, “The Automobile Exception: What it ts

and What it is Not. A rationale in Search ol

a Clearer Label", 27 Mercer L. Rev. 987 (1976)

29

26

26

.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

No. 77-1497

EE ons ona) cn ends phntsdedd chance Petitioner

vs.

RI DIG ID a osc occceuiacindddcccsct Respondent

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF ARKANSAS

BRIEF FOR PETITIONER

I. 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 in the

Appendix.

Il. JURISDICTION

The opinion of the Arkansas Supreme Court was filed

December 19, 1977. Petitioner'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).

2

Ill. QUESTION PRESENTED

Whether a warrantless search of both an automobile trunk

and an immediately 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 Friday, April 23, 1976, Officer David Isom of the Little

Rock Police Department Narcotics Squad, acting upon infor-

mation 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 afternoon 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 mari-

3

juana 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 and got in a taxicab. (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 placed the

green suitcase in the trunk of the taxicab (T. 93) and 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 not placed under arrest at

that point. (T. 48) In the trunk the officers found the green suit-

case, 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), and later proved to be, 9.3 pounds

of marijuana. (T. 147) Respondent Sanders and 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

4

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 suitcase

when it was seized and searched under the Fourth Amendment.

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.

“|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 serrched (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 decision was hased solely on the Fourth Amendment to the United

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

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

5

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 serrch 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.

SUMMARY OF ARGUMENT

A.

The Arkansas Supreme Court erred in holding that the

warrantless search of the green suitcase was unreasonable. The

court ignored the facts, petitioner's argument and

Constitutional precepts, as well as common logic in its efforts to

6

fit the facts of this case within the ambit of Umited States v.

Chadwick, 433 U.S. 1 (1977). The court concluded that the of-

ficers had probable cause to believe that the taxi and the suit-

case within contained contraband and that the officers were

justified in stopping the taxi on the busy street during Friday

rush hour traffic. They erroneously concluded, however, that

there were no exigent circumstances to justify a warrantless

search. Further, in its determined effort to stretch Chadwick to fit

this case, the court misconstrued, added to and ever created

argument and fact in order to make the language of Chadwick fit

the facts here. In short, the opinion is irrational in light or: the

facts and incorrectly applies Chadwick.

The search here was clearly reasonable as being made un-

der the automobile exception to the warrant requirement of the

Fourth Amendment. This Court has created what has come to

be called the “automobile exception’, which deems reasonable

warrantless searches of cars when there is probable cause to

believe that they contain contraband and exigent circumstances

surrounding the mobility of the automobile precludes or makes

impractical the obtaining of a search warrant. The facts of this

case bring it squarely within the ambit of the automobile excep-

tion. Here, the officers had probable cause to believe that the

respondent's green suitcase contained contraband and was

located in the trunk of the taxicab; that the taxi was carrying

the respondent, the suitcase and an accomplice who had not

been known to the officers until just moments before, away from

the airport during Friday afternoon rush hour traffic. These fac-

tors clearly made the brief street-side stop and search of the taxi

and the discovery of the contraband in the suitcase reasonable

pursuant to the automobile exception.

C.

The Arkansas Supreme Court based its decision upon

U/nited States v. Chadwick, supra. Chadwick did not deal with an

automobile exception case, but rather with a rejection of an

attempt to create a new exception to the warrant requirement of

the Fourth Amendment for personalty in the possession of an

arrestee. This attempted exception would have allowed the

warrantless search of personalty due to its mobility and would

have amounted to an extension of the rationale of the

automobile exception beyond automobiles. The Chadwick deci-

sion did not vitiate reasonable searches made pursuant to the

automobile exception, nor did it restrict the limits of a

legitimate automobile exception search. To extend the holding

of Chadwick to so do would be error and that is precisely what

the Arkansas Supreme Court did.

ARGUMENT

A.

7

THE ARKANSAS SUPREME COURT ERRED IN

HOLDING THE WARRANTLESS SEARCH OF THE

RESPONDENT'S GREEN SUITCASE TO BE

UNREASONABLE.

The Arkansas Supreme Court erred in holding that the

search of the respondent's green suitcase was unreasonable. In

making its ruling, the Arkansas Supreme Court noted the ex-

ception to the warrant clause of the Fourth Amendment up-

holding warrantless searches as reasonable where there is

probable cause coupled with exigent circumstances. The court

examined the facts of the case and held that, while the officers

did have probable cause to believe that respondent's green suit-

case contained contraband, the search was nevertheless invalid

under the rule of l’mited States v. Chadwick, 433 U.S. 1 (1977), in

that there were no exigent circumstances. Sanders v. State of

Arkansas, 262 Ark. 595, 559 S.W. 2d 704, 706 (1977). The

petitioner agrees with the Arkansas court's finding of probable

cause, but disagrees with its overbroad application of Chadwick

so as to negate a finding of exigent circumstances.

In the case at hand, the Arkansas court had no problem in

finding probable cause for the police to believe that Sanders’s

green suitcase contained marijuana. The informant, whose

reliable information in the past had led to three previous convic-

tions of Sanders for narcotics violations, contacted the police on

Friday, April 23, 1976, and gave most detailed information

about Sanders’s expected arrival at the Little Rock Airport on

that same day. (T. 25-31, 72)

The informant had stated that the respondent would be

arriving in Little Rock on the 4:35 p.m. American Airlines flight

from Dallas at Gate 1 and would have a green suitcase full of

marijuana. (T. 25-31) This information was corroborated by

the officers’ personal observation of the respondent at the air-

port and probable cause culminated with respondent's picking

up of his green suitcase at the baggage claim area, giving it to

his confederate, Rambo, and their departure in a taxi.

The Arkansas court implicitly held that the officers did

have probable cause, and that exigent circumstances were pre-

sent such as to make reasonable the seizure of the taxi, the

search of the cab for the suitcase, and the seizure of suitcase.

The court held, however, that pursuant to l'miéed States v.

Chadwick, supra, the exigent circumstances which would have

made reasonable a warrantless search of the unlocked suitcase

were totally dissipated when the officers gained control of the

luggage on the street. Sanders v. State of Arkansas, supra, 559 S.W.

2d at 706; Petition for cert. at 5(a).

Chadwick dealt with the warrantless seizure of a 200 pound

double-locked footlocker by federal agents as it was being plac-

ed into the open trunk of a parked car whose engine was not

running. 433 U.S. at 4. The defendants were arrested and they

and the trunk were taken to the federal building where the

footlocker remained under the exclusive control of the federal

agents. An hour and a half after the arrest and seizure, the

agents conducted a warrantless search of the footlocker in the

federal building. /d.

The government in Chadwick put forth three theories in

attempting to justify the search. The first, which it raised only

at the district court level, was that the search was reasonable

10

pursuant to the automobile exception to the warrant require-

ment. The district court rejected this argument based upon the

facts surrounding the seizure, noting that the connection

between the auto and the footlocker was ‘‘merely coincidental.”

433 US. at 5.

The other two theories which the government employed

were that the search was incident to a valid arrest and that

because of the inherent mobility of the footlocker, the search

was justified. As to the former, the Court held that warrantless

searches of luggage or other property seized at the time of an

arrest cannot be justified as incident to that arrest if the search

is remote in time or place from the arrest or no exigency exists.

Going further, the Court noted that .

“once law enforcement officers have reduced luggage or

other personal property not immediately associated with

the person of the arrestee to their exclusive control, there is

no longer any danger that the arrestee might gain access to

the property to seize a weapon or destroy evidence, a

search of that property is no longer an incident of arrest.’ 433

U.S. at 15 (emphasis supplied).

In the “mobility of luggage” argument, the government

sought to break new ground by creating a new exception to the

Fourth Amendment closely analogous to the automobile excep-

tion. 433 U.S. at 11, 12. After discussing the automobile excep-

tion and its rationale as well as giving a discussion of the role of

the luggage, the Court rejected creation of the government's

luggage mobility exception based on the facts of the case:

“Once the federal agents had seized it [the footlocker| at

the railroad station and had safely taansferred it to the

Boston Federal Building under their exclusive control,

there was not the slightest danger that the footlocker or its

nien s could have been removed before a valid search

warrant could be obtained.”’ 433 U.S. at 13.

Thus, the Court refused to adopt a ‘“‘mobility exception”’ to the

Warrant Clause of the Fourth Amendment where the 200

pound double-locked footlocker not only had been seized but

also had been in the exclusive custody of the agents at the

federal building for an hour and a half prior to its warrantless

search.

Given the facts and holding of Chadwick, the Arkansas

Supreme Court erroneously applied Chadwick to the search of the

respondent's green suitcase in deeming that search un-

reasonable. Petitioner's sole contention before the Arkansas

Supreme Court was that the search of the suitcase was a

reasonable one under the automobile exception to the warrant

requirement pursuant to Carooll v. United States, 267 U.S. 132

(1925); and Chambers v. Maroney, 399 U.S. 42 (1970). The

reasons for such will be fully set forth in Part B of this argument.

Given this fact, the Arkansas Supreme Court dismissed

petitioner's argument in a misdirected attempt to bring the case

within the ambit of Chadwick. In so doing, the Arkansas court

erroneously employed the language and rationale of Chadwick,

used to refute an attempted extension of search incident to a

lawful arrest doctrine and the creation of a ‘“‘mobility doctrine,”

to totally dissipate the real exigent circumstances of a

reasonable search under the “automobile exception’’. In this

regard, it must be noted initially that a search incident to arrest

and an automobile exception search are as different as night

and day. So, too, are the exigencies which legitimize the

12

searches under each doctrine. The exigency behind a search in-

cident to an arrest is primarily for the protection of the arresting

officer. It is reasonable for him, in making his arrest, to protect

himself by searching the person arrested for weapons which the

the arrestee might use to resist or escape. Pennsylvama vy. Mimms,

434 U.S. 1;6 (1977). The “search incident”’ doctrine also allows

the officer to search the immediate area into which an arrestee

might reach to grab a weapon or destructable evidence. See

Chimel v. Californa, 395 U.S. 752, 763 (1969).

The exigencies which make a search reasonable pursuant

to the automobile exception to the warrant requirement, on the

other hand, are quite different indeed. This doctrine is premised

upon the realization that contraband goods are often concealed

and transported in automobiles o: other vehicles and that the

circumstances that furnish probable cause to search a particular

auto for particular articles are most often unforseeable and that

the opportunity to search is fleeting since a car is readily

movable. Cardwell v. Lewis, 417 U.S. 583, 590 (1974); Chambers v.

Maroney, supra, 399 U.S. at 50-51.

Thus, as apples and oranges are both fruit but totally

different, so the only common touchstone of the search incident

doctrine and the automobile exception to the Warrant require-

ment is the preservation of evidence sometimes found in a

search at the time of an arrest. Apart from that, they are

different doctrines with different factors and criteria for the

employment and rejection of each.

With this in mind, it can readily be seen how the Arkansas

Supreme Court, in its over-eager erroneous attempt to bring the

case within Chadwick, misconstrued the facts and misquoted

13

petitioner's argument, and misapplied thiseGourt’s ruling in

Chadwick.

Here, the Arkansas Court erroneously disposed of the

automobile exception which was petitioner's sole justification

for the search. The court held that, even though respondent and

the suitcase had left the airport traveling in a taxi, the

relationship between the suitcase and the taxi was “coinciden-

tal.” (Compare, 559 S.W. 2d at 706, fn. 2, with 433 U.S. at 5.)

Petitioner submits that the relationship here is substantial and

is a far cry from the “coincidental” relationship of the footlocker

and the car found in Chadwick, 433 U.S. at 4, 5, where the

footlocker had just been placed into the open trunk of the park-

ed car whose engine was not running.

The Arkansas court went on to find, implicitly if not ex-

plicitly, that, while there was probable cause to stop the taxi

and exigent circumstances to justify a warrantless search and

seizure of the taxi, there were no exigent circumstances present

to justify the warrantiess search of the suitcase found in the taxi,

based upon Coolidge v. New Hampshire, 403 U.S. 443 (1971).

Petitioner notes that Coolidge refused to find exigent cir-

cumstances present to justify a warrantless automobile search,

based upon some eight factors, one of which was that the car in

question was parked in the driveway of the home, that it was

immovable, and that the search took place well after probable

cause was found. 403 U.S. at 460-464. Petitioner also notes that

in stressing the necessity of exigent circumstances, the Court in

Coolidge distinguished between the car there and those in Carrol/

v. U/mited States, supra, and Chambers v. Maroney, supra, which had

been stopped on a highway. 403 U.S. at 459-460. It seems clear

that the Arkansas court's reliance upon Coolidge is ill-founded.

14

Apparently, the Arkansas court felt that, having made a

valid seizure of the taxi, having conducted a valid search of the

cab, and having made a valid seizure of the suitcase, the officers

should have then taken the respondent, his confederate, the

suitcase and maybe the cab driver to the police station and ob-

tained a warrant. While petitioner will deal with this point more

fully in Part B, suffice it to say that this is exactly the cir-

cumstance discussed by the Court in Chambers v. Maroney, supra,

399 U.S. at 51-52.

Petitioner takes particular umbrage at the Arkansas court's

erroneous statement that petitioner contended that “the mobili-

ty of the object to be searched (the green suitcase) justified a

warrantless search.’ Sanders v. State of Arkansas, supra, 559 S.W.

2d at 706. This was never argued in the Arkansas court. (See

petitioner's brief in Appendix) The court then used this alleged

contention to springboard into a mirror of the Chadwick rejection

of the “mobility doctrine,’ 433 U.S. at 13. Petitioner's sole con-

tention on this point has always been that the search was

reasonable pursuant to the automobile exception, and it did not

allege or even allude to that which the court quoted.

While the petitioner will discuss this area more fully in Part

B, it cannot help but note that the doctrine and phraseology

employed here by the Arkansas court is questionable. It was

utilized by this Court, in Chadwick, to note that once the double-

locked, 200 pound footlocker had been seized and transferred to

the federal building, a warrant could then have been obtained.

The validity of this rationale certainly cannot be denied when

applied to the facts in Chadwick, where the automobile exception

was not asserted by the government. It is highly questionable

whether it is equally applicable to the facts in Sanders where: (1)

the automobile exception, rather than the mobility doctrine, is

ee eee

15

the only ground asserted by petitioner to justify the search; (2)

the search had been contemporaneous to the seizure, rather

than an hour and a half subsequent by petitioner to justify the

search; (3) we are confronted with a suitcase which was unlock-

ed, rather than a 200 pound, double locked footlocker; (4) the

suitcase had not been removed from the situs of the seizure; (5)

it is questionable whether the officers had the suitcase under

their exclusive control prior to the search; and (6) contrary to

the court's assertion, the respondent did contest the validity of

the initial seizure of his suitcase. (See respondent's argument of

this point in his appellate brief in the Appendix) Also see

Chambers v. Maroney, Id.

Here, the Arkansas Supreme Court e:roneously deemed

the city street search of the green suitcase unreasonable in light

of Chadwick. Chadwick did not involve the automobile exception

and there is nothing within Chadwick that indicates that 1 limits

the scope of a valid automobile exception search. 433 U.S. at 11,

12, 13; also see, United States v. Finnegan, 568 F. 2d 637, 640-642

(%h Cir. 1977); United States v. Gaultney, 581 F. 2d 1137, 1144-

1145 (Sth Cir. 1978); Umited States v. McGrath, 448 F. Supp.

1338, 1341-1342 (S.D. N.Y. 1978). Petitioner submits that

Chadwick stands for the principle that where the warrantless

search of luggage cannot be justified under either the

automobile exception or as a search incident to an arrest, the

court will not allow the search based upon “mobility of

luggage.”

Here, the Arkansas Supreme Court invalidated a

reasonable search under the automobile exception to the

warrant requirement of the Fourth Amendment by erroneously

stretching the holding of Chadwick and the facts of Sanders, and

by twisting and even creating petitioner's argument on appeal.

16

While there is an indication that the Arkansas Supreme Court

implicitly recognized the error it made below in this case

through its strange “inter-state vs. intra-state state journey distinc-

tion” in Berry v. State of Arkansas, 263 Ark. 446, 565 S.W. 2d 418

(1978), the result of the case here is an incorrect decision which,

if allowed to stand, emasculates the automobile exception in

Arkansas.

THE WARRANTLESS SEARCH OF RESPONDENT'S

GREEN SUITCASE WAS REASONABLE AS MADE

PURSUANT TO THE “AUTOMOBILE EXCEPTION.”

The Fourth Amendment to the United States Constitution

states:

“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.”

In applying this Amendment, this Court has held that the

fundamental inquiry has been whether a search or seizure is

reasonable under all of the circumstances. United States v.

Chadwick, supra, 433 U.S. at 9; Cooper v. Califorma, 386 U.S. 58,

59, 61 (1967). In making such a determination this Court has

recognized that there are significant differences between

automobiles and stationary property which permit the

warrantless seizure and search of automobiles in circumstances

17

in which warrantless searches would not be reasonable in other

contexts.

The “automobile exception” was first recognized in Carroll

v. U/mted States, 267 U.S. 132 (1925), wherein this Court deemed

reasonable the warrantless search and seizure where there was:

(1) probable cause for believing that the car was carrying con-

traband, and (2) exigent circumstances precluded the search

and seizure, unless done without a warrant. /d., 267 U.S. at 154,

156.

In Chambers v. Maroney, supra, the petitioner contended that

the warrantless search and seizure were unconstitutional since

(a) the officers did not have probable cause to arrest him, and

(b) the fact that the search took place after the car and its oc-

cupants were in police custody and hence, had ample oppor-

tunity to procure a search warrant. See petitioner's brief, 26 L.

Ed. 2d at 891.

After determining that probable cause had existed to seize

the car and its occupants, 399 U.S. at 47-49, the Court turned

its attention to the second prong of Carroll, probable cause, and

rejected petitioner's second contention holding:

“Neither Carroll, supra, nor other cases in this Court require

or suggest that in every conceivable circumstance the

search of an auto even with probable cause may be made

without the extra protection for privacy that a warrant af-

fords. But the circumstances that furnish probable cause to

search a particular auto for particular articles are most

often unforseeable; moreover, the opportunity to search is

fleeting since a car is readily movable. Where this is true,

as in Carroll and the case before us now, if an effective

18

search is to be made at any time, either the search must '

made immediately without a warrant or the car itself nowt

be seized and held without a warrant for whatever period is

necessary to obtain a warrant for the search. In enforcing

the Fourth Amendment's prohibition against un-

reasonable searches and seizures, the Court has insisted

upon probable cause as a minimum requirement for a

reasonable search permitted by the Constitution. As a

general rule, it has also required the judgment of a

magistrate on the probable-cause issue and the issuance of

a warrant before a search is made. Only in exigent cir-

cumstances will the judgment of the police as to probable

cause serve as a sufficient authorization for a search.

Carroll, supra, holds a search warrant unnecessary where

there is probable cause to search an automobile stopped on

the highway; the car is movable, the occupants are

alerted, and the car’s contents may never be found again if

a warrant must be obtained. Hence an immediate search is

constitutionally 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 the ‘lesser’ intrusion is itself a

debatable question and the answer may depend on a varie-

ty of circumstances. For constitutional 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

19

search, either course is reasonable under the Fourth

Amendment.” 399 U.S. at 50-52.

Thus, Chambers made it clear that, given the two prongs of

the “automobile exception’, there is no constitutional

qualitative difference between a search and a seizure; that is,

given a valid seizure pursuant to the “automobile exception”’, a

valid search is permissible also. See Moylan, “The Automobile

Exception: What It Is and What It Is Not — A Rationale In Search ofa

Clearer Label.”’, 27 Mercer L. Rev. 987, 1002-1003 (1976).

Turning back to the facts of Sanders, it is obvious that the of-

ficers had probable cause, having received information that

Sanders would be arriving at 4:35 p.m. that day on the Friday

afternoon American Airlines flight from Dallas, that he would

be de-planing at Gate 1 and that he would be bringing a green

suitcase filled with marijuana. (T. 25-31) The fact that the in-

formant had previously supplied information which had led to

Sanders being convicted of three narcotics violations increased

the credibility of the information, leading the three officers to set

up surveillance at the airport.

Lest the contention be raised that the officers could have

obtained a search warrant prior to their surveillance, it should

be noted that, at that point, there was no corroboration of the

informant, and there would have still been problems particular-

ly describing the place to be searched. Further, there is nothing

in the record to indicate the underlying circumstances from

which the informant concluded that the respondent was

transporting marijuana. Therefore, the affidavit upon which an

applicant would have suought to obtain the search warrant

would have been constitutionally defective. Aguilar v. Texas, 378

U.S. 108, 114 (1964),

20

Therefore, it was not until they observed respondent pick

up his green suitcase at the baggage area that information

received from the informant was corroborated, ripening into

probable cause to believe that Sanders’s suitcase contained

marijuana.

At that point, however, the respondent had been joined by

a confederate, and when both of them got into the taxi, placing

the suitcase in the trunk, and began to drive away, exigent cir-

cumstances certainly existed. (T. 26-28, 32-34, 44, 46, 52, 53,

86, 93) At that point the officers ran for their car to follow the

taxi and were moving so quickly that Officer Mize was left

behind in the airport. (T. 27, 44, 53) The two officers followed

respondent’s taxi down one of the busiest streets in Little Rock

during 5 o'clock traffic on a Friday afternoon and called for the

assistance of a marked patrol car. (T. 47, 76) In light of the fact

that the respondent was in the company of an accomplice and

the officers knew not the respondent’s destination, they were

clearly within the ambit of Chambers and Carroll in stopping the

cab and conducting a warrantless search. Chambers v. Maroney,

supra, 399 U.S. at 50-51, also see, fn. 9 at 51; Cooper v. Califorma,

supra, 386 U.S. at 59; South Dakota v. Opperman, 428 U.S. 364, 367

(1976).

The taxi was stopped on the busy street during rush hour

and the driver was asked to open the trunk. (T. 47, 48) In the

trunk the officers saw the green suitcase. It was not locked and

they quickly opened it, finding over 9 pounds of marijuana. (T.

27, 35, 147) The respondent and his accomplice were then plac-

ed under arrest. (T. 34) The detention on the street was direct

and brief but adequate to determine that the respondent and his

accoraplice should be arrested. Clearly, the search was a

reasonable one pursuant to the “automobile exception” as

delineated by Chambers and Carroll.

21

The Arkansas Supreme Court held, however, that the ex-

igent circumstances which were present allowing the stop of the

taxi became non-existent once the cab stopped. Such reasoning

defies both common sense and the rule of the “automobile ex-

ception” and denotes some constitutional confusion on the

court's part. The court’s apparent logic was that once the of-

ficers stop or seize a vehicle, their mere presence terminates all

exigencies. Were this logic valid, there would be no such thing

as an “automobile exception,” save when some daring officer

leaps from his moving vehicle into that of the suspect's. As this

Court noted in Carroll, a form of the “automobile exception” has

been around in this country since at least 1789. 267 U.S. at 150-

151. Contrary to the court’s tilted logic, exigent circumstances

justifying the seizure do not immediately evaporate upon the

presence of law officers at the scene of the seizure. Carroll v.

United States, supra; Chambers v. Maroney, supra; Cady v. Dom-

browski, 413 U.S. 433, 441-442 (1973); Cardwell v. Lewis, 417

U.S. 583, 595-596 (1974); Texas v. White, 423 U.S. 67 (1975).

Perhaps the logic of the court is that, given the valid stop or

seizure of the taxi, the exigent circumstances are not existent

because, since the car is a taxi rather than respondent’s own

vehicle, there is no danger that it would be moved out of the

locality while the officers left the scene at 5 o’clock on a F riday

afternoon in order to obtain a warrant. Such chauvanistic think-

ing would not take into account the facts that it is the suspect

who was headed somewhere in the cab and that it is he who is

paying the fare and is then alerted. Given this, the departure of

the police to obtain a warrant leads to the very real possibility

that the contents may never be found again. It is precisely

this situation to which this Court addressed itself in Cham-

bers v. Maroney, supra, 399 U.S. at 51; and noted in Coolidge

v. New Hampshire, supra, 403 U.S. at 459-460.

22

Perhaps the logic of the court is that, having the situation

apparently under control, the police should then escort

everyone to the police station while they obtain a warrant. It be-

ing around 5:00 p.m. on a Friday afternoon, this would involve

a minimal delay of some two hours while the parties are

transported to the police station for booking and fingerprinting

and the police try and locate a judge to issue the search warrant.

It is precisely this situation Chambers addressed when it was

said:

“Carroll, supra, holds a search warrant unnecessary where

there is probable cause to search an automobile stopped on

the highway; the car is movable, the occupants are alerted,

and the car’s contents may never be found again if a

warrant must be obtained. Hence an immediate search is

constitutionally 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 the “lesser” intrusion is itself a

debatable question and the answer may depend on a varie-

ty of circumstances. For constitutional 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.” 399 U.S. at 51-52; Cardwell v. Lewis, supra, at

594.

23

THIS logic of the Court would also conflict with Cardwell’s

language stating:

“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 inforeseeable

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

necessitating prompt police action.’’ 417 U.S. at 494-596.

Finally, given the fact that the court erroneously stated that

the petitioner contended that ‘“‘mobility of the object to be

searched (the green suitcase) justified a warrantless search,”’ it

is possible that the court applied “search incident to arrest”

doctrine to determine that there were no exigent circumstances.

Whatever the rationale for the court’s decision, it is clear

that the facts of this case show the search to have been

reasonable under the “automobile exception.” At the moment

of corroboration of the informant at the airport, the offi-

cers had probable cause to believe that the suitcase con-

tained contraband; hence, they had probable cause to search

the suitcase. When the respondent and his accomplice drove

away with the suitcase in the taxi, they then certainly had

probable cause to believe that the taxi contained the contra-

band and likewise had probable cause to search it.

24

There is likewise no doubt as to the existence of exigent cir-

cumstances when the officers watched respondent and the ac-

complice place the suitcase in the trunk of the cab and drive

away onto one of the busiest streets in the city in the Friday

afternoon rush hour traffic to an unknown destination. The ex-

igent circumstances made it impractical to seek a warrant. Ob-

viously, then, the officers were justified in seizing the taxi on the

street pursuant to the “‘automobile exception”’ of Chambers and

Maroney, supra; and Carroll v. United States, supra. Therefore, there

being no constitutional qualitative difference under the

‘automobile exception’? between a search and seizure,

Chambers, 399 U.S. at 51-52, the warrantless search of the vehicle

was reasonable.

The question then becomes whether the search of the green

suitcase found in the trunk was reasonable and the answer must

be in the affirmative, because it was the fruit of the reasonable

‘automobile exception”’ search.

In Carroll, this Court held that the intrusion, the search and

seizure of the car, was reasonable pursuant to what is now

known as the “automobile exception.’’ The Court held that the

officers, armed with probable cause to believe that contraband

was situated somewhere within the car and faced with the exigen-

cies in complying with the Warrant requirement which were in-

herent in a moving vehicle, search of the car for that contraband

was reasonable. Hence, given the reasonableness of the search

and seizure pursuant to the “‘automobile exception,”’ the fruits

of that search, which were found behind the upholstery of the

seats, clearly would have been admissible.

In Chambers, the officers had probable cause to believe that

the car contained contraband and the fruit of the crime,

25

although they did not know where in the car it was located. In

view of the probable cause to search, coupled with the exigent

circumstances, the Court held that the search of the car and the

seizure of the gun and fruit of the crime found in the compart-

ment under the dash were reasonable pursuant to the ‘‘auto-

mobile exception;”’ hence, the fruit of the reasonable search was

admissible.

The point of this is that in neither Carroll or Chambers did

the officers know where in the automobile the objects of their

searches were. Under the ‘‘automobile exception’’ they were

allowed free rein to search the entire vehicles to find those ob-

jects, the exact substance of which they knew not prior to the

search. Further, it was the existence of the exigencies inherent

in moving autos, coupled with the officers’ probable cause to

believe that the contraband or fruit of the crime was located in

the car, that made reasonable the warrantless search and ad-

missible the fruit of the search.

Here, the officers had probable cause to believe that the

green suitcase contained contrab od. They also knew that the

suitcase was in the trunk of the taxi as it drove away from the

airport. Like Carroll and Chambers, the officers had probable

cause to believe that the car contained contraband. Further,

since they had seen the suitcase being placed in the trunk and

therefore knew the exact location of the contraband within the

vehicle it could be said that even greater probable cause existed

in the instant case than in Carroll and Chambers. Thus, this

probable cause coupled with the exigencies here (the moving

auto; the 5:00 p.m. Friday rush hour traffic on one of the busiest

streets in the city; the fact that it was highly probable that it

would take longer than normal to have a search warrant issued

since the courts had all closed for the weekend; the fact that the

26

respondent had been joined by a confederate), combined to

justify the seizure of the taxi and the searching of it pursuant to

the automobile exception to the Fourth Amendment.

Given the reasonableness of a warrantless search pursuant

to the automobile exception, we know of no case which limits

extent of the area of the vehicle or the fruit of that search.

Indeed, the warrantless search of trunks or luggage found

within the trunk of a car during a search pursuant to the

automobile exception to the Fourth Amendment has long been

deemed a reasonable one. United States v. Finnegan, supra, 508 F.

2d at 640-641; United States v. Gaultney, supra, 581 F. 2d at 1144-

1145; United States v. Ficklin and Seefeldt, unreported below, Nos.

77-2923 and 77-3220, (9th Cir., filed February 10, 1978), cert.

denied, 47 U.S.L.W. 3222 (No. 77-1635; October 2, 1978);

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 (5th Cir. 1974) (en banc), reaffirmed

without opinion sub nom.; United States v. Aviles, 535 F. 2d 658

(Sth Cir. 1976), cert. denied, 433 U.S. 911, 53 L. Ed. 2d 1095;

United States v. Tramunti, 513 F. 2d 1087 (2d Cir. 1975), cert.

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

1374 (9th Cir. 1975), cert. denied, 429 U.S. 867; Umited States

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

U.S. 916; United States v. McGarrity, 559 F. 2d 1386, 1387-1388

(Sth Cir. 1977); United States v. Giles, 536 F. 2d 136, 140

(6th Cir. 1976); People v. Kreichman, 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); Wimber-

ly v. Superior Court, 45 Cal. App. 2d 486, 119 Cal. Rptr. 514, 519-

521 (1975), vacated on other grounds, 128 Cai. Rptr. 641, 547 p. 2d

417 (1976).

27

In sum, the search here was clearly reasonable as having

been made pursuant to the automobile exception to the

Warrant Clause of the Fourth Amendment.

C.

UNITED STATES V. CHADWICK, 433 U.S. 1 (1977), IS

INAPPLICABLE TO THIS CASE AND DOES NOT

RESTRICT A REASONABLE WARRANTLESS SEARCH

MADE PURSUANT TO THE AUTOMOBILE

EXCEPTION TO THE WARRANT CLAUSE OF T

FOURTH AMENDMENT. sa

Umted States v. Chadwick, supra, is inapplicable to this case.

The issue before the Court in Chadwick was “whether a search

warrant is required before federal agents may open a locked

footlocker which they have lawfully seized at the time of the

arrest of its owners, when there is probable cause to believe the

footlocker contains contraband."’ 433 U.S. at 3.

As is obvious from the issue preseried, Chadwick does not

deal with a reasonable search made pursuant to the automobile

exception of the Warrant Clause of the Fourth Amendment.

The only involvement that Chadwick had with an automobile

was the fact that the footlocker was seized as it was placed into

the open trunk of a parked car before its engine had been

started. 433 U.S. at 4.

This being the factual connection of the footlocker’s

momentary contact with the automobile and noting the status

of the car at the time of seizure, it is patent that the second

prong of the automobile exception, exigent circumstances

28

prohibiting the obtaining of a warrant, could not have been

satisfied. Coolidge v. New Hampshire, supra, 403 U.S. at 459-462.

Apparently the government realized that the facts here w uld

not place the case at all within the automobile exception, and

after the district court dismissed this contention by noting the

mere coincidental relationship between the car and footlocker,

the government never raised the contention again. 433 U.S. at 5,

11, 12.

Upon seizing the 200 pound, double-locked footlocker and

arresting the petitioners, the government transported the locker

and arrestees to the federal building where the locker remained

under the exclusive control of the government for an hour and a

half. At that point, the agents conducted a warrantless search of

the Iecker which yielded marijuana. 433 U.S. at 5.

Having quickly abardoned its theory that the search was

reasonable under the automobile exception, the government

proceeded upon two theories: (1) that the Court should create a

new exception to the Warrant requirement of the Fourth Amend-

ment holding that movable personalty lawfully seized in a pub-

lic place should be subject to a search without warrant if

probable cause exists to believe it contains evidence of a crime;

(2) that the Constitution permits the warrantless search of any

property in the possession of one arrested in public, so long as

there is probable cause to believe that the property contains

contraband or evidence of crime. 433 U.S. at 14. In proffering its

first theory, the government asked the Court to analogize the

rationale of automobile searches to permit warrantless searches

of luggage. In advancing the second argument, the government

contended that the Warrant requirement of the Fourth Amend-

ment protects only interests traditionally identified with the

home. /d. The Court dismissed this argument, discussing at

29

some length the history of the Fourth, Amendment and the

narrow exceptions to the Warrant requirement. 433 U.S. at 6-11.

Turning to the government's two theories, the Court re-

jected the former on the grounds that there are significant

differences between motor vehicles and other property which

justify the different treatment, such as a vehicle’s inherent

mobility making obtaining a warrant impracticable and the

diminished expectation of privacy surrounding automobiles.

433 at 12-13. The Court then noted that these special distinc-

tions did not apply to luggage, which was primarily intended as

a repository of personal effects. 433 U.S. at 13.

The Court, therefore, refused to create a new exception to

the Warrant requirement for mobile personalty or luggage

which would have been based on the same rationale as the

automobile exception. In refusing to do so, it noted that there

were no exigent circumstances present here justifying the

warrantless search of the 200 pound, double-locked footlocker

at the federal building, one and one-half hours after the agents

had reduced it to their exclusive control. 433 U.S. at 13

The Court rejected the government's second theory, stating

that the agent's search here could not be justified as a search

incident to the arrest under Chimel, supra; Terry v. Ohio, 392 U.S.

1 (1968); or United States v. Robinson, 414 U.S. 281 (1973),

because of Preston vy Umied States, 386 U.S. 364, 367 (1964), and

the Court concluc d:

“Once law enforcement officers have reduced luggage or

other personal property not immediately associated with

the person of the arrestee to their exclusive control, and

there is no longer any danger that the arrester might gain

30

access to the property to seize a weapon or destroy

evidence, a search of that property is no longer an incident of

the arrest. 433 U.S. at 15. (emphasis supplied).

It should be noted that the Court rejected the government’s

theories attempting to create new classes of exceptions to the

Warrant requirement, and it did not say that luggage could not

be searched without a warrant where the search was reasonable

pursuant to a recognized exception to the Warrant requirement.

Indeed, this Court recognized that there may be situations in

which a warrantless search of luggage is reasonable when ex-

igent circumstances exist. 433 U.S. at 11. One of the two

elements of the automobile exception which makes the

warrantless search reasonable is the existence of exigent cir-

cumstances, which preclude obtaining a warrant. Carroll v.

Umited States, supra, 267 U.S. at 153; Chambers v. Maroney, supra,

399 U.S. at 50-51; Coolidge v. New Hampshire, supra, 403 U.S. at

459-462.

U/mted States v. Chadwick, supra, did not involve a fact situa-

tion within the ambit of the automobile exception; nor did

Chadwick proscribe the search of luggage done within the ambit

of the automobile exception, which is the situation in the case at

hand. In Chadwick, the connection between the 200 pound,

double-locked footlocker and the car was coincidental. The

footlocker had just been placed in the trunk at the moment of

apprehension. The trunk was still open, the car was parked and

the engine was not running. Here, the unlocked suitcase was in

the closed trunk of an automobile, which was moving along a

busy city street at rush hour on a Friday afternoon. The

relationship here between the taxi and the suitcase could hardly

be termed ‘“‘coincidental”’.

31

To extend the language and doctrine of this Court which it

employed to dismiss attempts to extend the automobile excep-

tion to personalty and to extend the time frame for search inci-

dent to arrest, to proscribe a reasonable search conducted pur-

suant to the automobile exception of the Fourth Amen<ment is

error. As the Ninth Circuit stated in United States v. Finnegan,

supra, and noted in Berry v. State of Arkansas, supra, 565 S.W. 2d at

420:

“Were we to rule that Chadwick applies here and renders

the search of the suitcase illegal, inconsistent and con-

tradictory results would follow. For instance, a police of-

ficer could search and seize a brick of marijuana lying in-

side the trunk of a car but not a brick of marijuana lying in-

side a suitcase in the trunk of a car.’ 468 F. 2d at 641.

Clearly, Chadwick has its realm of applicability, but within

the realm of a reasonable search pursuant to the automobile ex-

ception is not it.

32

CONCLUSION

The Writ of Certiorari should be granted, and the decision

of the Arkansas Supreme Court should be reversed and the ver-

dict of the trial court reinstated

Respectfully submitted,

Bitt CLINTON

Attorney General

State of Arkansas

Josern H. Purvis

Deputy Attorney General

Justice BuiLpinG

Lirrte Rock, ArRKaANsas 72201

AND

Joun Westey Hane, Jr.

Deputy Prosecuting Altorney

304 Pucasxi: Country CourTHOoUsE

P. ©. Box 1979

Lirrte Rock, ARKANSAS 72203

Allorneys jor Petitioner