Petitioners Reply Brief — Arkansas v. Sanders

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CASES

Brinegar v. United States,

338 U.S. 160 (1949) ..... indienne ee cores

Cady v. Dumbrowski,

Se SP ED 6c baecesscnceee a 7

Cardwell v. Lew's,

ED on donc inn ohhuwe WeedesedahwaeedkeuNseeness 6

Carroll v. United States,

267 U.S. 132 (1925) 1, 7,9

Chadwick v. Umted States,

433 U.S. 1 (1977) : 1, 3,5

Chambers v. Maroney,

399 U.S. 42 (1970) ; , TT. ee

Chimel v. California,

395 U.S. 752 (1971) en eee 9

Draper v. United States,

358 U.S. 307 (1959) 10

Umted States vy. Finnegan,

568 F. 2d 637 (9th Cir. 1977) .. ST

Umited States v. Schleis,

582 F. 2d 116 (8th Cir. 1978) . Spa ane _ 3,5

Limited States v. Stevie,

582 F. 2d 1175 (8th Cir. 1978) * mG

l’mted States v. Stevie,

578 F. 2d 204 (8th Cir. 1977) me 4

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

No. 77-1497

DE AE NS bos 50.b ccc etecicetsetenoven eens Petitioner

Vs.

fC PPT TT TPT er erie Respondent

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF ARKANSAS

REPLY BRIEF FOR PETITIONER

ARGUMENT

The respondent’s brief is filled with the broken field logic

which might be expected from one occupying his fact position.

The respondent, faced with the task of placing a round peg in a

square hole, has attempted to do just that, via his attempt to

remove this case from the ambit of the automobile exception to

the Fourth Amendment and piace it within the confines of

Chadwick vy. United States, 433 U.S. 1 (1977). When confronted

with the holdings of Carreli v. United States, 267 U.S. 132 (1925);

Chambers v. Maroney, 399 U.S. 42 (1970), and others, he leaps to

another topic or attempts to dismiss them by misstatements of

their rationale and holdings.

The initial error bearing discussion is the respondent’s

erroneous dismissal of Chambers v. Maroney, supra. In so doing,

the respondent notes that:

a justification for the delayed search in Chambers, supra, in that

the occupants in the car were arrested in a dark parking lot in

the middle of the night and a careful search at that point was

impractical perhaps unsafe for the officers. Chambers, supra, at

52., n.6. Nothing in Chambers, supra, suggests that the officers

could search a suitcase clearly utilized as a repository of per-

sonal effects without first procuring a warrant.’ Respondent's

brief, PP. 5-6.

The last sentence quoted above will be dealt with fully in

subsequent paragraphs. The petitioner calls the Court's atten-

tion to the fact that this quote is an example of the respondent's

broken field logic used to ignore the Court’s holdings which are

contrary to his position.

The respondent here has merely explained some of the

practicalities for allowing the officers to search the car at the

police station, rather than at the scene and has failed to note the

full impact and the rationale: that the officers in Chambers had

probable cause to search, coupled with the exigent cir-

cumstances inherent in the fact that there was an automobile in-

volved containing the probable felons and the fruit of the crime.

The facts being as they were, the Court found no constitutional

difference between seizing the car and occupants and holding

them until a magistrate could rule on probable cause and issue

a warrant, and carrying out an immediate warrantless search.

Chambers v. Maroney, supra, 399 U.S. at 50-52.

The fact is simply that, contrary to the respondent’s treat-

ment of it, Chambers is applicable to the facts of the case at bar.

Here, as in Chambers, the officers had probable cause to believe

that the taxi contained the probable felons and a suitcase full of

contraband. There were likewise present exigent circumstances

in that they were contained in a taxi speeding away from the

airport to an unknown destination during 5:00 P.M. rush hour

traffic on a Friday afternoon when stopped.

The respondent next attempts to buttress his position by

reliance upon the Eighth Circuit's holding in Umted States v.

Schlets, 582 F. 2d 116 (8th Cir. 1978). The petitioner will not

here attempt to reiterate the distinction between the present

case and Chadwick which it drew in its original brief. Suffice it to

say that Chadwick stands on its own footing and has its own

realm, into which the present case does not fall. The petitioner

makes this statement by way of showing that Schlets falls square-

ly within the facts of Chadwick (See 582 F. 2d at 1168-1169).

Indeed, the petitioner points out that this Court obviously

agrees, having remanded Schleis for further consideration in light

of Chadwick. 403 U.S. 905; also, 582 F. 2d at 1167.

The petitioner thoroughly distinguished the doctrine of

“search incident to an arrest”’ from that of the automobile ex-

ception in its original brief. Save it to say the petitioner fails to

see the correlation between the search of a defendant’s locked

briefcase at the station, after he had been placed in a cell, as in

Schlets, not remotely dealing with the automobile exception, and

the search in the case at hand.

The respondent also relies upon United States v. Stevie, 582 F.

2d 1175 (8th Cir. (1978). The fact situation in Stevie was almost

identical to the one here in that the defendants had been ap-

prehended by DEA officers after they had left the St. Paul air-

port. It should be noted here that the opinion relied upon by the

respondent was rendered on rehearing. The Stevie panel had

originally upheld the constitutionality of the search and seizure

in an opinion by Judge Webster which distinguished Chadwick.

Umied States v. Stevie, 578 F. 2d 204 (8th Cir. 1977).

The opinion on rehearing upon which the respondent relies

is erroneous and it is obvious that the court fell into the same

misconstrued interpretation of Chadwick as did the Arkansas

Supreme Court in its opinion below here. Indeed, this can be

easily seen by the fact that, in making its decision, the court

relied in part on the Sanders decision. 582 F. 2d 1179, n. 5.

The petitioner feels that the distinction between Chadwick

and the facts of Stevie and the case at hand were correctly noted

by Chief Judge Gibson in his dissent:

“After carefully considering Judge Heaney’s opinion and

reconsidering the panel opinion in this case, published at

578 F. 2d 204, I would affirm the convictions. As deter-

mined by the panel opinion, the search of the suitcase

should be upheld as within the automobile exception to the

warrant requirement. United States v. Finnegan, 568 F. 2d

637, 641-42 (9th Cir. 1977).

I have little to add to the panel opinion but will correct the

apparent misapprehension of the majority as to the distinc-

tion the panel drew between Chadwick and the present case.

The majority view Chadwick as involving seizure of a

footlocker outside an automobile. Actually, in both cases the

luggage was inside an automobile when seized. However,

in Chadwick, the Government conceded that no automobile

search was involved because the seizure occurred im-

mediately after the footlocker was placed in the

automobile’s trunk and before the trunk had been closed or

the engine started. This fleeting contact was not sufficient

to bring the automobile search exception into play.

By contrast, the seizure in this case occurred on a four-lane

express highway. The suitcases had been transported a

considerable distance in the automobile by the defendants.

The search was conducted immediately after the

automobile was stopped. Thus the present case is dis-

tinguishable from Chadwick by the significant contact the

suitcases had with the automobile. Umited States v. Chadwick,

433 U.S. at 22-24, 97 S. Ct. 2476 (Blackmun, J., dissen-

ting). The reasons justifying warrantless automobile

searches apply, in my opinion, to searches of containers

found inside the automobile. See cases cited in U/mited States

v. Chadwick, 433 U.S. at 23 n.4, 97 S. Ct. 2476 (Blackmun,

J., dissenting).

There is one other element of the majority’s decision that

disturbs me. The majority opinion in this case and in

United States v. Schlies, 582 F. 2d 1166 (8th Cir. to be filed

concurrently), seem carefully crafted to suggest that

warrants will now be required for a search of most personal

property that had been reduced to the exclusive control of

law enforcement officers. The dictum in the panel opinion

in Umited States v. Haley, 581 F. 2d 723 (8th Cir. 1978)

carries this suggestion one step further. It correctly up-

holds the warrantless opening of a zippered leather con-

tainer found in plain view in a car, but only because of the

exigent circumstances of an apparently injured man

needing assistance. To assume that the expectation of

privacy in a zippered bag approaches the expectation of

privacy in a locked footlocker is carrying the analogy

beyond its reasonable limits. The entire opinion in

ck is premised on the obvious expectation of privacy

enjoyed by a person who doublelocks a footlocker.

As properly noted in Chadwick, the warrant clause of the

Fourth Amendment “protects people from unreasonable

government intrusions into their legitimate expectations of

privacy”, but how much “legitimate” expectation of

privacy should a person be permitted to enjoy in the con-

cealment and transportation of contraband? If Chadwick is

viewed as applying to all closed pieces of luggage and con-

tainers that are subject to personal modes of transporta-

tion, then the enforcement of the criminal laws will be

severely diminished by the inability of the law enforcement

officers to discover and apprehend those who are in the

pursuit of lawless activities. The additional time, energy

and cost in attempting to locate a magistrate and secure a

warrant cannot help but impair and diminish the effective

operation of law enforcement officers. This is not to say

that the Fourth Amendment is not a prized personal con-

stitutional right enjoyed by free people, but the Fourth

Amendment proscription is “against unreasonable

searches and seizures.” In this situation I do not think that

the defendant had, should have had, or could have had

any “‘legitimate”’ expectation of privacy in the concealment

of marijuana in a closed piece of luggage being transported

on a public highway of this country. I view this search as

reasonable. ... . =f

582 F. 2d at 1180-1181.

The respondent next states that the Fourth Amendment

protects people not places and asks that the Court focus its

attention on the privacy interest of the passenger and not on the

moving taxi or the suitcase. He goes on further to state that the

Court’s language dealing with the lesser expectation of privacy

in an auto, found in Cardwell v. Lewis, 417 U.S. 583, 589-590

(1974), holding that there is a lesser expectation of privacy in an

automobile because the automobile seldom serves a3 the

repository of personal effects, is “unnecessarily broad and not

entirely accurate.”” Respondent’s brief, p. 10.

The petitioner agrees that the Fourth Amendment protects

people, not places. The petitioner hastens to add, however, that

in Cardwell, supra; Cady v. Dumbroski, 413 U.S. 433 (1973);

Chambers, supra; and Carroll, supra, the Court has noted that

there is a lesser expectation of privacy which attaches to

automobile passengers.

This is most implicit in the holdings above, for it is not the

lifeless automobile itself which has the lesser expectation of

privacy; but rather, those who use and operate automobiles

upon the public thoroughfares. Indeed, this is one of the foun-

dations of the automobile exception noted in Cardwell, supra;

Chambers, supra; and Carroll, supra.

The respondent is somewhere in between talking out of

both sides of his mouth, and wanting to have his cake and eat it

too. He first argues that the Fourth Amendment protects people

not places. Then, while begrudgingly admitting the diminished

expectation of privacy of automobile passengers, he nevertheless

asks the Court to disregard this concept because of a thing or

place, i.e., luggage, inside the automobile. In other words, the

respondent appears to be contending that the same degree of

privacy which would attach to a suitcase which is found in one’s

home, attaches to that suitcase when it is found in a car.

However, the Fourth Amendment right of privacy is not lodged

in lifeless objects, to-wit: the automobile itself, or luggage found

therein; rather, this right inures to the persons who operate

vehicles and who place luggage therein. As noted above, it is not

the automobile which has the lesser expeciation of privacy, but

rather, those who operate them. Thus, the respondent’s logic

convolutes his own “people vs. places” argument.

It thus stands to reason that a person carrying contraband

in a container within a common carrier on the public highway

has a somewhat more diminished expectation of privacy than

would one having such container within the confines of his own

home.

In this regard, remembering that the Fourth Amendment

protects people not places, the petitioner cannot help but

wonder whether the person carrying contraband in an unlocked

container within a common carrier on a public street has a

greater expectation of privacy than Carroll did in carrying con-

traband hidden inside the seats of his private automobile?

Likewise, does he have a greater expectation of privacy than did

Chambers carrying contraband in a concealed compartment un-

der the dashboard of his private automobile?

Going further and in regard to the last sentence of the top

paragraph of respondent's brief on p. 6, the petitioner knows of

no cases, save the one at bar and the rehearing opinion in Stevie,

supra, which have prohibited those conducting a legitimate

automobile-exception search from searching containers found

in the car. Indeed, as noted by both the Ninth Circuit in United

States v. Finnegan, 568 F . 2d 637, 641 (9th Cir. 1971), and the Dis-

sent of Chief Judge Gibson in Steve, supra, 582 F. 2d at

11801181, to so rule would be illogical and would lead to incon-

sistent and contradictory results.

Another related point which bears discussion is, assuming

that the respondent’s contention regarding a “ luggage excep-

tion’’to the automobile exception is adopted, what then con-

stitutes “luggage’’? Would luggage be limited to “American

Tourister’? Would it be extended to cover briefcases? Would it

extend to sacks or paper bags in which a person might

keep “personal effects”? If not, could the poor then raise an

Equa! Protection claim if they did not have the money to afford

‘formal luggage’’? How would an officer, in the process of con-

ducting an otherwise reasonable search under the automobile

exception, know what constituted “luggage” and what did not?

To follow where the respondent seeks to lead the Court sur-

ely would lead to either the “inconsistent and contradictory

results’ which Finnegan supra, spoke of; or, it would totally

emasculate the reasonable and necessary automobile exception

to the warrant requirement of the Fourth Amendment. Neither

of these results should follow, nor should the respondent's logic

be followed.

The respondent next attempts an implicit dismissal of the

automobile e> eption by the ludicrous contention that once he

was stopped by the officers the exigent circumstances ceased to

exist and that the officers should have taken the whole kit and

kaboodle to the police station. In so doing, the respondent again

attempts to draw the “search-incident’’ doctrine under Chimel

v. California, 395 U.S. 752 (1971).

First, it should be restated, as on page 21 of the petitioner’s

original brief, that the exigent circumstances do not melt away

like snowflakes in the Bahamas simply because the officers have

stopped the defendant. This is obvious from the facts surroun-

ding the constitutional search in Carroll, supra. It is even more

apparent in light of the fact that the Chambers search was not

done at the scene, but rather, at the police station. Chambers v.

Maroney, 399 U.S. at 44. If the respondent's logic were followed,

10

the only way such a search would ever be accomplished would

be when a daring officer made a “John Wayne” leap from his

moving vehicle into the moving automobile of the defendant and

conducted the search while fighting with a felon.

At this point, the petitioner would reiterate its contention

in its original brief that exigent circumstances did indeed exist

in the instant case. Without rehashing the factual circumstances

of the case, which are set forth in detail in the original brief, the

petitioner notes that while the ultimate decision of whether ex-

igent circumstances were present as a matter of law in any given

case is one to be determined after the fact by the trial court, the

initial determination thereof must necessarily be made by the

law enforcement officer present at the time of the incident. The

making of this determination is similar to the determination of

probable cause, which, as noted in Draper v. United States, 358

U.S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959) and Brinegar v.

United States, 338 U.S. 160, 69 S. Ct. 1302, 93 L. Ed. 2d 1879

(1949), must be based upon the factual and practical considera

tion of a prudent police officer at the time of the arrest — not

from the vantage point of a legal technician. A moving

automobile on a busy public thoroughfare was involved herein;

it has long been recognized that exigent circumstances are in-

herent in moving vehicles once they are stopped. As noted in

Carroll, this doctrine has been in existence since at least 1789.

267U.S. at 150, 151.

Moreover, it is precisely this situation that the Court ad-

dressed itself in Chambers when it stated:

“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,

11

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 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.” Chambers v. Maroney, supra, 399 U.S. at 51-

52.

Clearly, these contentions are meritless.

The Constitution is a living instrument. In construing it for

application to the ever-changing world in which we live, it is

necessary that it be interpreted in a rational, commonsense

manner, for it governs the lives of a// our people. The respondent

here has in reality, attempted to carve out an exception for

“luggage” from the automobile exception and in so doing, has

asked this Court to forge an interpretation of the Fourth

Amendment which flies in the face of existing law, as well as

common-sense and rational thought. Clearly, his contentions

are meritless and must therefore be rejected.

12

CONCLUSION

For the foregoing reasons, the petitioner prays that relief be

granted and the decision of the Arkansas Supreme Court be

reversed.

Respectfully submitted,

Steve CLARK

Altorney General

Josern H. Purvis

Deputy Attorney General

Justice Building

Little Rock, Arkansas 72201

and

Joun Westey Hatt, Jr.

Deputy Prosecuting Attorney

304 Pulaski County Courthouse

P. O. Box 1979

Little Rock, Arkansas 72203

Attorneys for Petitioner