# Petition — Rakas v. Illinois > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1253%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 439 U.S. 128 ## Text #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: --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1253%3A1. Public record. Not legal advice.