# Amicus Brief — Torres v. Puerto Rico

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0999%3A8

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Brief
- **Published:** January 1, 1979
- **Citation:** 442 U.S. 465

## Text

| FILED

6 1978
IN THE

Supreme Court of the United

Ocroper Term, 1978

AEL RODAK, JR., CLERK

No. 77-1609

-
Terry T. Torres,

Appellant,

—_Y —

CoMMONWEALTH OF Pverro Rico,

Appellee.

ON APPEAL FROM THE SUPREME COURT OF THE
COMMON WEALTH OF PUERTO RICO

BRIEF FOR THE
AMERICAN CIVIL LIBERTIES UNION,
AMICUS CURIAE

Bruce J. Ennis

Cuartes S. Sms
American Civil Liberties Union
22 East 40th Street
New York, New York 10016

Attorneys for Amicus Curiae

TABLE OF CONTENTS

Pages
TABLE OF AUTHORITIES ecocccccccoece § SS
INTEREST OF AMICUS coceeccecccee 1
STATEMENT OF THE CASE Ce tee eee renee 3
SUMMARY OF ARGUMENT eeocccecccccoce 5
ARGUMENT epecccocscocces§ SG

I. THE WARRANTLESS SEARCH AND
SEIZURE OF PERSONAL LUGGAGE
IN APPELLANT'S POSSESSION
WAS CONDUCTED WITHOUT PROB-
ABLE CAUSE, IN THE ABSENCE
OF EXIGENT CIRCUMSTANCES,
AND IN DIRECT VIOLATION OF
APPELLANT'S FOURTH AMENDMENT
RIGHTS. eccscccsccess 10

II. ARTICLE V, SECTION 4 OF THE
CONSTITUTION OF PUERTO RICO,
WHICH PREVENTED THE MAJORITY
OF THE JUSTICES BEFORE WHOM
APPELLANT ARGUED HIS STATE
COURT APPEAL FROM ENTERING
AN ORDER REVERSING HIS CONVIC-
TION DESPITE THEIR OPINION
THAT THE CONVICTION WAS UNCON-
STITUTIONAL, VIOLATES THE
SUPREMACY CLAUSE AND ABRIDGES
APPELLANT'S RIGHTS TO EQUAL
PROTECTION AND DUE PROCESS. «e+ 24

A. The Supremacy Clause ....... 24

B. Equal Protection and
Due Process eesececesecces§ Oe

ii

TABLE OF AUTHORITIES

Cases:

Ableman v. Booth, 62 U.S.
oe —t—(—i( le Oe ROR 27

Almeida-Sanchez v. United States,
413 U.S. 266 (1973) i «eecees 5, 6, 16, 19

Amesquita v. Hernandez-Colon,

518 F.2d 8 (lst Cir. 1975), cert.

denied, 424 U.S. 916 (1976) = «eeueeeees 14
Ballew v. Georgia, 435 U.S. 223 (1978).... 33

Briscoe v. Commonwealth Bank of Kentucky,

33 U.S. 118 (1834) = = — weeeee 35, 36
Calero-Toledo v. Pearson Yacht Leasing Co.,

416 U.S. 663 (1974) = = = —= wesecee 14-18
Califano v. Torres, 435 U.S. 1 (1978) -
Camara v. Municipal Court,

387 U.S. 523 (1967) = = —§ «weeeeee 21
Chimel v. California,

395 U.S. 752 (1969) eeceses 13
Commonwealth v. Aguayo,

83 P.R.R. 534 (1958) = -— «eecece 35
Coolidge v. New Hampshire, 403 U.S. 443

eo ee Ts 5S, ia
Courtney v. Williams,

oe er) 6U™C™C™~C~C/

14/ The extreme importance of the Supremacy
Clause, as the bedrock provision upon
which the entire federal system ultimately
rests, was clearly recognized by the Found-
ing Fathers. Even prior to the Constitu-
tional Convention James Madison wrote,

"If the judges in the last resort depend
on the States, and are bound by their oaths
to them and not to the Union, the inten-
tion of the law and interests of the Union
may be defeated by the obsequiousness of
the tribunals to the policy or prejudices
of the States.” 2 J. Madison, Writings 339.
Moreover, even the harshest contemporary
critic of modern "judicial activism"
acknowledges the singular importance of
exacting strict fidelity to the commands
of the Supremacy Clause. See R. Berger,
Congress v. The Supreme Court, at 223-285.
(1969).

15/ It has also caused the members of the
court to violate their oaths of office.
Article VI, § 16 of the Puerto Rican
Constitution requires that "all public
officials . . . shall take an oath to
support the Constitution of the United
States." The oath makes no exception for
the Supremacy Clause or the Fourth

(Footnote 15 continued on next page)

=26@

Relying upon the Supremacy Clause,
this Court has repeatedly set aside state
procedures which impeded the enforcement
of constitutional rights. Long before
passage of the Fourteenth Amendment, which
drastically altered the balance in federal-
state relations in favor of the federal
gevernment, this Court relied upon the
Supremacy Clause to ensure that federal
rights would be enforced by state courts.
Even in the antebellum heyday of the
states’ rights doctrine, this Court inter-
vened dramatically to strike down “any
state law" or state judicial procedure
which “interrupt[ed], limit[ed], delay[ed],

(Footnote 15 continued)

Amendment. Commentators have long noted
the intimate connection between the
Supremacy Clause and the clause relating
to the oath of office. See 2 J. Madison,

supra. R. Berger, supra.

The ironies and anomalies presented
by this situation are numerous. Perhaps
the greatest of them is that the most
compelling and exhaustive legal argument
for reversing appellant's conviction
presently before this Court is to be
found in the majority opinion of the
court below. In Ss Lamited respect at
least, this case, like Estate of Wilson
v. Aiken Indus., cert. denied, 47 U.S.L.W.
3215 (Oct. 2, 1978), also recalls the
well known remark by Charles Dickens as to

what the law can sometimes be. Id. at
3219 n. 3.

o%Fa

or postpone[d]" the assertion of a "posi-
tive and absolute" constitutional right.
See Prigg v. Pennsylvania, 41 U.S.

539, 611-12 (1842) (state kidnapping
statute invalidated); Ableman v. Booth,

62 U.S. 506 (1859) (state habeas
corpus process invalidated). Surely the

values of privacy and liberty embodied in
the Fourth Amendment are as worthy of this
Court's protection as the "property"
interests it invoked the Supremacy Clause
to defend one hundred and thirty years
ago on behalf of the fugitive slave
clause.

Moreover, because this Court's
decision in Stone v. Powell, supra,
severely restricts a state defendant's

right to have an independent federal
determination of a Fourth Amendment claim,
the Court should exercise particular care
to ensure that a state court gives every
appellant a full and fair opportunity to
prevail on his Fourth Amendment claim.

See Mincy v. Arizona, U.S. __, 57
L.Ed.2d 290, 306 (1978) (Marshall and
Brennan, J.J., concurring) .25/

16/ As the concurring justices observed,
It is far from clear that we would have

=29-

The Court's decision in Stone v.

Powell presupposes parity between state
and federal courts as forums for enforcing
federal rights. Stone v. Powell, supra,

(Footnote 16 continued)

granted certiorari solely to resolve the
Fifth Amendment issue in this case, for
that could have been resolved on federal
habeas corpus. With regard to the Fourth
Amendment issue, however, we had little
choice but to grant review, because our
decision in Stone v. Powell precludes
federal habeas consideration of such
issues." Mincy v. Arizona, supra, at 306.
Indeed, in the aftermath of Stone, at

least one circuit court has suggested

that a state defendant has a right to
"meaningful appellate review" of his Fourth
Amendment claim. See O'Ber v. Wain-
wright, 546 F.2d 1204, th Cir.)
1976), cert. denied, 433 U.S. 911 (1977).
See also,Gates v. Henderson, 568 F.2d 830,
843-4 (2d Cir. 1977), cert. denied, 98

S. Ct. 775 (1978) (Oakes, J. concurring).
The net effect of Article V, § 4 and similar
state provisions could well be a substantial
increase in the number of Fourth Amendment
cases this Court is required by law to
adjudicate on the merits. See 28 U.S.C.

§§ 1257(1), (2), 1258(1), (2).

=29-

at 493, n. 35. But Article V, § 4 of the
Constitution of Puerto Rico operates as

a direct and special presumption against
the successful assertion of constitutional
claims in a direct criminal appeal. When
a rule of state appellate procedure unduly
burdens the presentation of a Fourth
Amendment claim on direct appeal, the
arguments concerning relative institutional
competence which supported the result in
Stone v. Powell, supra, argue just as
strongly that the state court rule must

be set aside. +2/ Article V, § 4 of the

17/ See also Smyth v. Ames, 169 U.S. 466
(1898) (possible availability of an adequate
state court remedy should not foreclose
federal court consideration of a properly
presented federal issue). Should the Court
decide that Art. V, § 4 is a state rule
denying appellant an "opportunity for full
and fair litigation" of his Fourth Amend-
ment claim, see Stone v. Powell, supra,

at 494, without reaching Say ee
Amendment question, amicus urges the Court
to make explicit in its decision that
appellant's right to federal collateral
attack on his conviction is not foreclosed.

-30-
Constitution of Puerto Rico clearly and
unmistakably contradicts Stone v. Powell's
fundamental premise, and it cannot be har-

monized with that case.

B. Equal Protection and Due
Process

In addition to obstructing the
enforcement of federal rights in general,
Article V, § 4 specifically deprives the
criminal appellant challenging the con-
stitutionality of his conviction in the
Supreme Court of Puerto Rico of equal
protection and due process.

Although a state has no obligation
to afford a criminal defendant an
opportunity to appeal his conviction at
all, once an appeal is granted it must be
made available on a fair and non-
discriminatory basis. See, Griffin v.
Illinois, 351 U.S. 12 (1956); Douglas v.
California, 372 U.S. 353 (1963). See also
Ross v. Moffitt, 417 U.S. 600 (1974).
Puerto Rican law provides the criminal

defendant an appeal to the Commonweaith's
Supreme Court, P.R. Laws Ann. tit. 4, § 37
(Supp. 1977), but Article V, § 4 of the
Puerto Rican Constitution discriminates
against certain criminal defendants in

oZl<

two important ways.

First, it discriminates against appel-
lants raising federal constitutional claims
in a way which serves no rational state
purpose. Under the current Puerto Rican
procedure which permits the Puerto Rican
Supreme Court to sit in three-man panels,
see People v. Perez, supra, a mass murderer

may win an appeal by a vote of two Supreme
Court justices by successfully arguing, for
example, a hearsay point. Meanwhile, appel-
lant must serve a substantial prison sentence
for a minor drug charge because his constitu-

tional rights were violated by an unconstitu-

tional statute and despite a majority opinion

entered by four of the court's justices
stating that his conviction should be
reversed. In addition, Article V, §4 also
discriminates among different constitutional

claims. Had this search been conducted in
the absence of statutory authorization, four
votes would have sufficed to reverse appel-
lant's conviction.

Second, Article V, §4 discriminates
against appellants raising identical consti-
tutional claims by arbitrarily increasing
their individual burdens of persuasion
depending upon the number of justices who
happen to sit on a particular day. As noted
above, Article V, §4 is superfluous when all

=320

eight justices are sitting: general common
law rules would require their majority vote
on a constitutional case coming before them.

See FTC v. Flothill Products, Inc.,
Supra. But when only seven of them sit on a

constitutional case, Article V, §4 makes it
necessary for a criminal appellant to per-
suade 70% of the bench before him. When six
justices sit, the appellant must persuade
83%. When five are sitting, he must persuade
100%. And when fewer than five appear, as
People v. Perez, supra, permits, an appellant

challenging the constitutionality of a Puerto
Rican statute simply cannot win. A sliding-
scale standard for successful appellate
review, in which the scale slides upward
depending upon factors over which the appel-
lant has no control, is an “arbitrary and
capricious" procedure. 18/

18/ The fundamental unfairness of the appeal
below is highlighted by considering how the
Supreme Court of Puerto Rico came to be com-
posed of eight justices in December 1977.
The court had previously been composed of
nine justices, but the Puerto Rican legisla-
ture decided in 1975 to decrease their number
to seven through gradual attrition. See
P.R. Laws Ann. tit. 4, §31 (Supp. 1977).
Were this same issue to be decided in the
future, when the court is comprised of the
seven justices now contemplated, a vote of
four would be sufficient to declare the

statute unconstitutional. (Footnote 18
continued)

@33-

Article V, §4's sliding scale offends
fundamental fairness in other ways as well.
This Court has held repeatedly that questions
concerning the burden of persuasion in crim-
inal cases are matters of constitutional
dimension. See In Re Winship, 397 U.S. 358,
(1970); Mullaney v. Wilbur, 421 U.S. 684

(Footnote 18 continued)

Indeed, if the non-participating eighth
justice had died just before appellant's
case was heard, this conviction would have
been reversed.

Originally, the Puerto Rican Supreme
Court was composed of only five justices.
See Article V, §2 of the Constitution of
Puerto Rico. Thus, the votes of only
three would then have reversed appellant's
conviction. This Court, after an extensive
review of the relevant social science
literature on small group interaction, has
recently ruled that a group of six is
sufficient to guarantee adequate consider-
ation of the questions the group must
decide. See Ballew v. Georgia, 435
U.S. 223 (1978); Williams v. Florida, 399
U.S. 78 (1970). Appellant's appeal was
decided by a group of seven.

-34-

(1975). And, however burdens of persuasion
may be distributed between the prosecution
and the defense as matters of law, in every

cther phase of a criminal proceeding the
prosecutor and the defendant are evenly
matched in terms of the number of persons

they must each convince to win their point.
On motions, they must each convince one
judge. In most jurisdictions, they must
each convince twelve jurors to convict or
acquit. In states with a unanimous jury
rule, either can hang a jury by convincing
a single juror. And in states where non-
unanimous jury rules apply, either side can

obtain a final judgment on the same vote-
count. But under Article V, §4 of the
Constitution of Puerto Rico, and People v.

Perez, supra, a prosecutor can sustain a

conviction on appeal without convincing a
single justice that the law underlying the

conviction is constitutional. A defendant
whose rights have been violated must con-
vince five that it is not. Although there may
be a legitimate state interest in construct-
ing legal presumptions in favor of the
constitutionality of duly enacted state
legislation, 22/ it is impermissible to

enforce that interest by creating judicial

19/ [Please see next page for footnote]

-35

mechanisms that operate in a manner which is
fundamentally unfair.

For many years this Court also refused
to decide major constitutional questions by
a vote of fewer than a majority of the entire
Court. See, e.g., Briscoe v. Commonwealth
Bank of Kentucky, 33 U.S. 118 (1834 ).
But that self-imposed rule has been dis-

regarded for some twenty-four years. See,
e.g., United States v. South-Eastern Under-
writers Ass'n., 322 U.S. 533 (1944); Feldman
v. United States, 322 U.S. 487 (1944), reh.
denied 323 U.S. 811 (1944). More importantly,
even while the "Briscoe Doctrine" was in
effect, the Court made sure that no abuses
such as these would arise. Briscoe itself

19/ Commonwealth v. Aguayo, 83 P.R.R. 534
(1958), suggests that the Puerto Rican Con-
stitutional Convention was concerned with

the “presumption of constitutionality,” as
well as the problems of non-uniformity which
might arise from the court's sitting in
divisions, when it framed Article V, §4.

See also People v. Perez, supra. On the other
hand, Article V, §4 does not on its face create
any presumption favoring the integrity of
lower court judgments. Under Article V, §4,

a party seeking to set aside a state statute
must convince five justices of the Puerto
Rican Supreme Court regardless of whether

he won or lost below.

-36-

made an exception for “cases of absolute
necessity." Briscoe v. Commonwealth Bank of

Kentucky, supra at 122. And when a decision

was not “absolutely necessary," the Court's
solution was simple: if the entire Court
could not be assembled, a case was simply
put over until it could be. See, e.g.,
Graff, "The Charles River Bridge Case," in
Quarrels That Shaped the Constitution

62, 71 (J. Garraty ed. 1964) (case put over
for six years).

Virtually every state which has a rule
resembling Article 5, §4 of the Puerto Rican
Constitution has also created a special
procedural or remedial device to prevent the
victonesmes * maascreaatd before the Court from

arising.— Puerto Rico has made none. When
an injustice occurs, it simply allows that

20/ See, e.g., North Dakota Constitution,
Article 4, §95 (requiring the state Supreme
Court's chief justice to appoint another
judge, or a retired justice, to replace any
justice who is unable to hear a particular
case); Nebraska (local practice requirement
that "Notice of Constitutional Issue" be
filed in advance with the Chief Clerk of
the Supreme Court so that the court willsit
en banc); Colorado (informal requirement that
the Supreme Court sit en bane to decide a
constitutional issue).

(Footnote 20 continued)

a ha, Wo

o37a

injustice to stand. This cannot be the
law.

(Footnote 20 continued)

Nor should the Court's holding in Ohio
ex rel. Bryant v. Akron Metropolitan Park
Dist., U.S. 74 (1930) govern here.

That case, decided almost half a century ago,
was a civil case concerning the power of the
states to organize their own political sub-
divisions. The Court's opinion was brief.
The enormous changes in due process doctrine
since 1930, combined with the fact = this
is a criminal case, render Ohio ex rel,
Bryant, supra, inapplicable. In addition,
the people of Ohio voted ten years ago to
repeal the provision of the Ohio Constitu-
tion this Court upheld in that case.

~38e

CONCLUSION

The Judgment entered below should be
reversed.

Respectfully submitted,

BRUCE J. ENNIS

CHARLES S. SIMS

American Civil Liber-
ties Union Foundation
22 East 40th Street

New York, New York 10016

ATTORNEYS FOR
AMICUS CURIAE *

November 15, 1978

e Counsel for Amicus wish to acknowledge the
substantial assistance of George Kannar, a
candidate for admission to the New York Bar,
in the research and preparation of this brief.

_—_ ae eee

+ ee

---

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