Petition — Rakas v. Illinois

#RECEIViD

‘ NOV25 i977

OFFICE OF 1H

E Cite

SUPREME COUR; ‘

IN VUE

SUPKEME COURT OF ‘THE UNLTED STATES

J OCTOBER TERM, 1977

f No. v4

7 —€7-5781

FRANK RAKAS AND LONNIE KING, PETITIONERS

-vs-

PEOPLE OF THE STATE OF ILLINOIS, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI

TO Thik APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

ROBERT AGOSTINELLI

Deputy Defender

Office of the State Appellate Defender

Third Judicial District

628 Columbus Street - Suite 308

Ottawa, Illinois 61350

(815) 434-5531

COUNSEL FOR PETITIONERS

G. JOSEPH WELLER

Assistant Defender

Office of the State Appellate Defender

Third Judicial District

OF COUNSEL

OV INLOW BELOW

The opinion of the Appellate Court of Ulbineis, Third

Judicial District, is reported at 46 Thl. App. 3d 569, 360

N.E. 2d 1252 (1977) (See Appendix A). Also attached hereto

is the unreported Order of the Appellate Court of Illinois,

Third Judicial District, denying Petitioner's Petition for

Rehearing (See Appendix Bb).

The Order of the Illinois Supreme Court denying, Leave

to Appeal is not reported, however, a copy of the Order is

attached hereto (See Appendix C).

JURISDICTION

The Order of the Illinois Supreme Court was entered on

September 30, 1977. This Court's jurisdiction is invoked under

28 U.S.C., §1257(3). This Petition for a Writ of Certiorari is

filed within ninety days of that Order.

QUESTIONS PRESENTED FOR REVIEW

Whether a passenger legitimately present in an automobile

has standing to challenge the constitutionality of a warrantless

police search of the automobile in which he-@s@s riding.

Whether the person against whom a search is directed has

an independent basis for standing to contest the lawfulness of

the search.

CONSTITUTIONAL PROVISIONS

United States Constitution

Amendment (IV)

The right of the people to be secure in their

persons, houses, papers, and effects, against unrea-

sonable searches and seizures, shall not be violated,

and no Warrants shall issuc, but upon probable cause,

Supported by oath or affirmation, and particularly

describing the place to be searched, and the persons

Or things to be seized.

als

Amendment (XIV)

Section L. All persons born or naturalized in the

United States, and subject to the jurisdiction thercof,

are citizens of the United States and of the State

wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or immuné-

ties of citizens of the United States; nor shall any

State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person

within its jurisdiction the legal protection of the law.

STATEMENT OF THE CASE

The Petitioners, Frank L. Rakas and Lonnie L.: King, were

convicted of armed robbery in the Circuit Court of Kankakee County,

Illinois. The most significant evidence against them was a rifle

(People's Exhibit 1) which one of the robbery victims identified

as being the same weapon used by the masked robbers (aso).

This rifle was the subject of a Motion to Suppress filed by

Petitioners prior to trial wherein it was asserted that the evi-

dence had been illegally seized by police from a search of an

automobile in which the Petitioners were, at that time, riding as

passengers (A28-30). During the pre-trial hearing on the Motion,

the Petitioners and Police Officer Donald Sollers testified as

defense witnesses.

Officer Sollers testified that, while on patrol, he spotted

a purple Plymouth Roadrunner, occupied by two males and two

females, which he thought might be the blue Roadrunner useé as a

getaway car by the two unknown male robbers (A48). The car he

saw, however, had a different license number than the getaway car

and lacked other described characteristics (A50-51). Neverthe-

less, he followed the car to a lounge where the four occupants, i.e.

lRe ferences are made to the Abstract of Record filed by

Petitioners in the Appellate Court.

the Petitioners and their female companions, went inside for about

forty minutes (A090). Sollers then telephoned the Sherlt ("a dis

patcher and was told that one of the males, dressed in a blue shirt,

matched the Limited description given of one of the robbers (A49).

[Testimony during the trial-in-chief established that the robbers

wore ski masks (A59). Moreover, the clothing worn by the

Petitioners when arrested (A58, 59, 61) did not match the ciothing

descriptions of the robbers given at trial (A58, 59, 61). Nor did

the preliminary police reports, included in the record on appeal,

suggest that the police were looking for men dressed as were the

Petitioners (A5-8).]

After the Petitioners left the lounge and were again pro-

ceeding on the highway, an assembly of policemen stopped their

car and ordered the occupants out at gunpoint (A49); and an

ensuing search of the automobile then disclosed the rifle (A50).

Before the search, none of the occupants were placed under arrest

(A49), permission to conduct the search was not sought (A50), and

the seized evidence was not visible from outside the car (A50).

The driver of the automobile was one of the Petitioners’

female éompanions, Janette M. Clontz (A45). The Petitioners both

agreed on cross-examination that Ms. Clontz was also the owner

of the automobile in which they were riding as passengers (A46,

47). Consequently, the prosecutor made an oral motion to dismiss

the Petitioners’ Motion to Suppress on the ground that, since it

was not their car, they had no standing to contest the legality

of the search. The trial judge thereupon promptly granted the

Prosecutor's motion, without allowing the appointed defense counsel

an opportunity to present contrary authority (A51-53). No further

evidence was then offered by either side. [As a result, it was not

revealed at the suppression hearing that Ms. Clontz was actually

the former wife of Petitioner King (See documents from the Common

Law Record at A23 and A115).]J

The Petitioners next challenged the lawfulness of the police

search on appeal to the Illinois Appellate Court, Third Judicial

District, which on March 23, 1977, affirmed the judgment of the

trial court, summarily disposing of Petitioners’ constitutional

assertions by deciding that they lacked standing to complain of

the disputed search. On Aprill3, 1977, the Appellate Court

denied Petitioners’ Petition for ichnethin.

On September 30, 1977, the Illinois Supreme Court refused to

review this case and the constitutional claim made herein.

REASON FOR ALLOWING THE WRIT

THIS COURT IS REQUESTED TO SETTLE A QUESTION WHICH HAS BEEN

CONFUSED BY CONFLICTING AUTHORITY, WHETHER A LEGITIMATE PASSENGER ,

IN AN AUTOMOBILE HAS STANDING TO CHALLENGE THE LEGALITY OF A

POLICE SEARCH OF THE AUTOMOBILE IN WHICH HE WAS RIDING; AND,-ALSU

THIS COURT IS REQUESTED TO DECIDE WHETHER THE "DIRECTED AT" THEURY

FURNISHES A VALID, INDEPENDENT BASIS FOR STANDING TO CONTEST THE

LAWFULNESS OF A SEARCH.

The underlying problem in this case should be relatively

simple and clear-cut; and, no doubt, it involves a factual situa-

tion which frequently arises. Yet, there is an almost unexplain-

able split of authority in this area of the law. Due to the

adverse rulings of the trial court and the Appellate Court as

to the Petitioners’ standing, without deciding the merits of their

motion to suppress, it can be assumed for the purposes of this

petition that the search of the automobile in which they were

riding as passengers was unlawful. Consequently, the only issues

presented herein concern the Petitioners’ right to object to that

search.

Petitioners, of course, rely first upon this Court's rat ion-

ale in Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L.

Ed. 2d 697, 78 A.L.R. 2d 233 (1960) which apparently abolished subtle

property law distinctions in the determination of standing to challenge the

legality of a search. And, as further defined in Brown v. United

States, 411 U.S. 223, 229, 93 S. Ct. 1565, 1569, 36 L. Ed. 2d 208,

214 (1973), the test announced by this Court seems to be that

standing exists where the defendant either (a) is on the premises

at the time of the contested search, (b) alleges a proprietary

or possessory interest in the premises, or (c) is charged with an

offense which includes, as an essential element of the offense

charged, possession of the seized evidence at the time of the

contested search and seizure. In the case-at-bar, the Petitioners

initially assert their standing based upon the first criteria of

the Brown test, their presence in the automobile at the time of

the search. They have not claimed a proprietary or possessory

interest in the automobile; nor were they convicted of an offense

which includes, as an essential element, possession of the fruits

of the search; although, it can fairly be said that they could not

have been convicted were it not for the evidence thus obtained.

Unfortunately, most of the decisions by lower federal courts

involve situations where the defendant was not actually in the

car at the time of the disputed search and, therefore, are not

directly on point, e.g., United States v. West, 557 F. 2d 151 (4th

Cir., 1977). However, at least a few courts have recognized that

the defendant's lawful presence in the car was sufficient to con-

fer standing. See United States v. Holmes, 521 F. 2d 859, 867

(Sth Cir., 1975), affirmed in relevant part on rehearing en banc,

537 F. 2d 227 (Sth Cir., 1976); Bustamonte v. Schneckloth, 448 F. 2d

699, 700 n. 1 (9th Cir., 1971). reversed on other grounds, 412 U.S.

218, 93 S. Cr. 2041, 36 L. Ed. 2d 854 (1973); and United States Vv.

Peisner, 311 F. 2d 94, 105, 5 A.L.R. 3d 1196, 1211 (4th Cir., 1963).

But see, United States v. Smith, 357 F. 2d 318, 320 (6th Cir., 1966) and

Shurman v.United States, 219 F. 2d 282, 288 (Sth Cir., 1955)

cert. den. 349 U.S. 921, 75 S. Ct. 661, 99 L. Ed. 1253 (1955).

The greatest difficulty, though, arises when one attempts

to reconcile holdings among the state jurisdictions. Indeed, a

number of state courts have concluded that automobile passengers

have standing to contest a search of the automobile in which they

werc riding. 2 On the other hand, decisions on point are by no

means uniform. Some state courts, like in Illinois, have arrived

at the opposite restlt by rejecting the Jones principle of

“legitimately on the premises". Outlining the rationale of these

decisions cannot be accomplished with any ease. However,

suffice it to say, various state courts still prefer pre-Jones

authority or have simply found Jones to be distinguishable where

the premises searched was an automobile.

2See Mullins v. State, 35 Md. App. 605, 371 A. 2d 713, 716

(1977); State v. Bresolin, 13 Wash. App. 386, 534 P. 2d 1394, 1402

(1975); Wing v. State 490 P. 2d 1376, 1380 (Okla. Cr., 1971); and

Paxton v. State, 263 N.E. 2d 636, 642 (Ind. S. Ct., 1970). See

also, State v. Gaines, 40 Ohio App. 2d 224, 318 N.E. 2d 857, 861

(1974); Hodges v. State, 267 So. 2d 798, 802 (Ala., 1972); State

v. Osborn, 300 N.W. 2d 798, 803-806 (Iowa S. Ct., 1972); People v.

Marshall, 25 Mich. App. 376, 181 N.W. 2d 578, 580 (1970);

and People v. Smith, 35 Misc. 2d 533, 230 N.Y.S. 2d 894, 909 (1962).

3The Supreme Court of Kansas, for example, in State v. Edwards,

197 Kan. 146, 415 P. 2d 231, 233-234 (1966), believed Jones to be

distinguishable and, also, declined to follow United States v.

Peisner, 311 F. 2d 94 (4th Cir., 1963). This is still the prevailing view

in Kansas, e.g., State v. Heath, 222 Kan. 50, 563 P. 2d 418, 420 (1977).

Another state which remains unaffected by Jones, so far as automobile

Passengers are concerned, is Missouri, notwithstanding an excellent

treatment of Jones by the Supreme Court of Missouri in In Re J.R.M.,

487 S.W. 2d 502, 505-509 (1972). But see, State v. Perkins, 543

S.W. 2d 805, 807-808 (1976) and State v. Browner, 514 S.W. 2d 355,

356 (1974). See also, the interesting comment in Ellis, 34 Missouri

Law Review 575, 582-584 (1969). Some cases from other state juris-

dictions of note include: Miller v. State, 520 S.W. 2d 729, 733-

734 (S. Ct. Tenn., i975), cert. den. 423 U.S. 849, 96 S. Ct. 91,

46 L. Ed. 2d 72 (1975) [disclaimer of ownership and not present at

time of search]; State v. Patterson, 252 So. 2d 398, 400 (Fla. App.,

1971) [Jones not mentioned in opinion]; State v. Hamilton, 264 N.C.

277, 141 SE. 2d 506, 512 (1965), cert. den. 384 U.S. 1020, 86 S. Ct.

1936, 16 L. Ed. 2d 1044 (1966), habeas corpus denied, 260 F. Supp.

632 (E.D.N.C., 1966), affirmed, 382 F. 2d 296 (4th Cir., 1567) [con-

sent to search piven by driver]} and Head v. State, 246 Miss. 203,

136 So. 2d 619 (1962), cert. den. 317 U.S. 910, 83 S. Ct. 2351, 8 L. Ed.

2d 179 (1962) [apparently rejected on the basis of Jones ir. Hamburg v.

State, 248 So. 2d 430, 431 (Miss. S. Ct., 1971)]). See also. the

discussion in Grant, 46 Mississippi Law Journal 147, [63 (1975).

But, despite a divergence of opinion, Petitioners belicve the

principles announced by this Court in Jones and Brown should con-

trol here. Lt appears to be well established that, in the case of

a fixed structure, one who was lawfully on the premises had standing

to challenge a search thereof, e.g., United States v. Brown, 540

F. 2d 1048, 1056-1057 (10th Cir., 1976). And, there is no logical

justification for a different rule as regard to standing when the

premises searched happened to be an automobile. See Rios v. United

States, 364 U.S. 253, 80 S. Ct. 1431, 4 L. Ed. 2d 1688 (1960);

Cotton v. United States, 371 F. 2d 385, 391 (9th Cir., 1967); and

People v. Feliciano, 70 Misc. 2d 83, 332 N.Y.S. 2d 830, 834 (1972).

See also, Weeks, 6 Arizona Law Review 65, 73-74 (1964). Althougi

the continuing validity of Jones had been subjected to some attacks

in recent years, the principle of standing from legitimate presence

premises has not been materially affected. See gen-

on the searched

erally, Duncan v. State, 276 Md. 715, 351 A. 2d 144 (1976). Im any

event, whether Jones has been eroded is for this Court to say, cf.

United States v. Alewelt, 532 F. 2d 1165, 1167 (7th Cir., 1976).

Moreover, all other considerations aside, Petitioners should

be accorded standing simply because they were the true objects or

targets of the search, cf. United States v. Jeffers, 342 U.S. 48,

72 S. Ct. 93, 96 L. Ed. 2d 59 (1951). The obvious purpose of

the police in stopping the car in which Petitioners were riding

and in conducting the search, was to determine if the Petitioners

were the two male robbers. This action, then, was ia reality

directed at them and not at their female companions, one of whom

turned out to be the registered car owner. Accordingly, it is

absurd to conclude that it was solely someone else's privacy which

was violated here. ‘To be sure, this most logical theory of standing

has not been clearly recognized by this Court, and there is 4

sparcity of authority thereon, but see then Judge Stevens re.narks

in United States v. Lisk, 522 F. 2d 228, 232-233 (7th Cir., 2975)

where he made the following observation, referring to United States

v. Jeffers:

. . . Jeffers’ standing to challenge the search as

well as the seizure might have been sustained on _

three alternative theories. (1) As a regular invitee,

even though he was not present at the time of the

search, his interest in the premises was sufficient

to make the search an invasion of his privacy as well

as his aunts'; (2) the search was ‘directed at! him

in the sense that the police were looking tor his

narcotics; or (3) that his interest in the seized

property gave him standing to challenge the search

that led to the seizure as well as the seizure it-

self.

In later cases the Supreme Court has cited Jeffers

as though it was decided on the first theory, that

the defendant's interest in the searched hotel room

rather than in the seized property allowed him to

challenge the search...

The Je4gers opinion itself emphasizes the fact that

the police entered the hotel room 'for the sole purpose

of seizing respondent's narcotics." Thus, the Court

seemed to rely on the second theory - that the search

was directed at Jeffers - as the basis for its holding

in that case that the search and seizure were not

Ssolable'. .. (emphasis added) 522 F. 2d at 232.

Then, in United States v. Potter, 419 F. Supp. 1151, 1156-1157

(N.D. Ill., 1976), Judge Decker questioned Justice Stevens' analysis

although, as in Lisk, the validity of the so-called "directed at"

theory did not have to be determined to resolve the case under

review. But, Judge Decker's views notwithstanding, the Seventh

Circuit United States Court of Appeals has recently persisted in

its recognition of this theory inthe‘Lisk case on rehearing

following remand, wherein the per curiam opinion states:

If the record has disclosed that the search of

Hunt's car had been intentionally ‘directed at’ Lisk,

the Fourth Amendment's protection might apply to Lisk.

522 F. 2d at 231, 232. Concern for the important.

values inherent in the Fourth Amendment require, in

this respect, that the burden fall upon the Government

to show the absence of a search intentionally directec

at the accused. 559 F. 2d 1108, at 1111 (7th Cir.,

1977).

See also, the comment .on the Lisk case in Young, 64 Georget>%wn Law

Journal 1187, 1193-1197 (1976). And, for other cases lending support

to the "directed at" theory, see: United States v. Cobb, 452 F. 2d

716, 720 (4th Cir, 1970) «and United States v. Fay, 344 KL 2d 625,

628-629 (2nd Cir., 1965).

In the case-at-bar, albeit in a slightly different context

than in Lisk, the disputed search was “intentionally directed at"

the Petitioners. Henee, this is a proper case lor application

of the "directed at" theory as a fourth, independent basis for

standing.

The instant case, therefore, presents a twofold reason for

this Honorable Court's attention, to settle a conflict of author-

ity on a matter of fundamental constitutional right and to decide

whether the “directed at" theory for standing is valid.

CONCLUSION

Wherefore, Petitioners respectfully request that a Wric of

Certiorari issue to the Appellate Court of Illinois, Third

District.

Respectfully submitted,

ROBERT AGOSTINELLI

Deputy Defender

‘f 4 ps as

Pre 3 Lenenl, A ae

G. JOSEPH WELLER

Assistant Defender

Office of the State Appellate Defender

Third Judicial District

628 Columbus Street - Suite 308

Ottawa, Illinois 61350

(815) 434-5531

COUNSEL FOR PETITIONERS

This Petition was prepared with

the assistance of s,osette Skelnik

a Law Student at Northwestern

University School of Law.

poorer rer: