Opposition — Gates v. Iowa

- Supreme Court, U,

FILED

\

' SEP 14 1978

|_MICHABL RODAK, JR., CLERK

In The

Supreme Court of the United States

ry

Vv

OCTOBER TERM, 1978

No. 78-227

n.

Vv

LARRY GATES,

Petitioner,

VS.

STATE OF IOWA,

Respondent.

ft)

Vv

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF IOWA

ry

Vv

BRIEF FOR RESPONDENT IN OPPOSITION

ray

Vv

RICHARD C. TURNER

Attorney General of Iowa

RAY SULLINS

Special Assistant Attorney General

State Capitol

Des Moines, Iowa 50319

Attorneys for Respondent

COCKLE PRINTING CO., 1822 St. Mary's Ave., Omaha

i

TABLE OF CONTENTS

Neen ic cseinstevivisownnsctanrenminnnevinesiontin 2

Questions Presented (LEAS UIGR Le nee RS

I as annaeennnsenseneemennsneeneyeenmencmems 2

Argument caaiediie a

a 11

CITATIONS

CasEs

Adams v. Williams, 407 U. S. 143 (1972) once 3, 4, 5, 6

Barlow v. State, 286 A. 2d 703 (Del. Super.

1971) ER Diack al emadsccheceniessienerethoninsies 8

Beaupre v. State, 526 S. W. 2d 811 (Tex. Crim.

i ataianadimmcnineenesnnon 8

Bell v. State, 512 P. 2d 226 (Okla. Crim. App.

1973) Saalacledbhisncen tos ae

Bumper v. North Carolina, 391 U. 8. 453 (1968) ecceorns 7

Carroll v. United States, 267 U. S. 182 (1925) occ... 10, 11

Chambers v. Maroney, 399 U. S..42 (1970) cncccccccccsssnemnees 9

Commonwealth v. Woods, 368 A. 2d 304 (Pa. 1976) .... 8

Mack v. State, 298 So. 2d 509 (Bla. 1974) nccccsssee 8

People v. MeLure, 39 Cal. App. 3d 64, 113 Cal.

Neen cnesmunmesinnemeninsaetennnrtamssn 8

il

CITATIONS—Continued

Poe v. City of Oklahoma, 483 P. 2d 1190 (Okla.

oe Se | ee

Schneckloth v. Bustamonte, 412 U. S. 218 (1973) ..........

Shue v. State, 129 Ga. App. 757, 201 S. E. 2d 174

(1973)

State v. Baych, 169 N. W. 2d 578 (Towa 1969) ....0.0..

State v. Carlton, 83 N. M. 644, 495 P. 2d 1091

(1972)

State v. Douglas, 260 Ore. 60, 488 P. 2d 1366

(1971) PO) OnE ANSE eT

State v. Farrell, 242 N. W. 2d 327 (Iowa 1967) .......

State v. Hirsch, 518 P. 2d 649 (Ore. 1974) once

State v. Lewis, 80 N. M. 274, 454 P. 2d 360 (1969)

State v. Rathburn, 195 Neb. 485, 239 N. W. 2d

NE | peitesettiiseenintnen Siiieaelniailnalibeiponiencelbiiieinioninn

State v. Suchy, 277 N. E. 2d 459 (Ohio 1971) ..............

Stephanson v. State, 494 S. W. 24 900 (Tex. 1973)

Terry v. Ohio, 392 U. S. 1 (1968) ncccccccccssssmeesseseneemeen

United States v. Agosto, 502 F. 2d 612 (9th Cir.

1975)

United States v. Chadwick, 97 S. Ct. 2476 (1977) ..........

United States v. Culp, 472 F. 2d 459 (8th Cir.

1973)

10

iil

CITATIONS—Continued

United States v. Curiale, 414 F. 2d 744 (2nd Cir.

Tae 8 ee a

United States v. Miller, 442 F. Supp. 742 (D.

ag REI ee Ala Pe SS a Oo RE

Whitman v. State, 25 Md. App. 428, 336 A. 2d

B15 (1975) eomennsnnonn ste ona eo

STATUTE

Towa Code, Section 718.6 (1978) ecco

Pages

In The

Supreme Court of the United States

ry

Vv

OCTOBER TERM, 1978

No. 78-227

LARRY GATES,

Petitioner,

Vs.

STATE OF IOWA,

Respondent.

ty)

Vv

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF IOWA

fy

Vv

BRIEF FOR RESPONDENT IN OPPOSITION

ry

Vv

OPINION BELOW

The opinion of the Court of Appeals of Iowa is not

as yet officially reported, but is appended to the Petition

for a Writ of Certiorari. The opinion was filed on March

29, 1978. ‘The Order of the Supreme Court of lowa deny-

ing rehearing is unreported and is appended to the Peti-

tion.

°

JURISDICTIONAL STATEMENT

The jurisdictional requisites are adequately set forth

in the Petition.

°

QUESTIONS PRESENTED

I. Whether police officers were justified in making

an investigatory stop of Petitioner’s vehicle relying solely

on information received from a citizen (known to both

police officers) that Petitioner’s vehicle was being driven

in an erratic manner suggesting the possibility that the

driver was intoxicated?

Il. Whether Petitioner knowingly and voluntarily

consented to a search of his vehicle without a warrant

when the police officer stated that he did not have a

search warrant but that he could get one?

III. Whether the police officers were justified in

searching Petitioner’s automobile without a warrant?

°o

STATEMENT OF THE CASE

The Statement of the Case is adequately set forth in

the Petition.

3

ARGUMENT

I,

This Court has held in Adams v. Williams, 407 U.S.

143 (1972), that police officers may make an investigatory

stop based solely on information supplied by another

person carrying sufficient indicia of reliability. The hold-

ing in Adams, supra, is dispositive of the question herein

presented.

The pertinent facts were succinctly stated in the Iowa

Court of Appeals decision, State v. Gates, filed March 29,

1978, at App. 14:

‘“(1) The Gates vehicle was first seen by Rogers on

a highway directly in front of a cocktail lounge.

‘*(2) The vehicle was a blue and white Chevrolet

Monte Carlo with out-of-state license plates, which

appeared to be either Pennsylvania or New York

plates.

**(3) The car was seen in a small Iowa city during

the late evening or early morning hours, with the stop

being made at approximately 1:30 a.m.

‘*(4) The vehicle was seen on a diagonal road near

an amusement park traveling on the left side of the

traveled pprtion of the roadway for some distance.

‘*(5) Rogers, who had been a part-time deputy and

was known to law enforcement officers in the area,

radioed Kilts and informed him to be on the lookout

for a blue and white Chevrolet Monte Carlo which

was, in his opinion, driving erratically over the road

and that possibly the driver was drunk. Rogers gave

the location of the car, the direction it was headed,

and indicated that he believed there were three other

passengers in the vehicle. The substance of this radio

communication was substantiated by both Kilts and

Loebach.

‘*(6) Loebach stated that the vehicle he and Kilts

stopped was a white and blue Chevrolet Monte Carlo

with Pennsylvania license plates and that three pas-

sengers were riding therein.

‘*(7) Rogers passed by the intersection where the

two vehicles were stopped and radioed Kilts that that

was the vehicle he had described to officers earlier.”

Under this set of facts, the Iowa Court of Appeals

concluded that the officers were justified in believing that

criminal activity was in progress and that an investiga-

tory stop was reasonable (App. 15). The Supreme Court

of Iowa denied Petitioner’s request for rehearing without

opinion, on May 12, 1978 (App. 19).

Petitioner alleges that the decision reached by the

Iowa Court of Appeals is in conflict with past decisions

of this Court, citing only Terry v. Ohio, 392 U.S. 1 (1968).

Respondent contends that not only is such an allegation

unfounded, but is negated by this Court’s decision in

Adams v. Williams, 407 U.S. 143 (1972), which is con-

trolling in the instant appeal.

Under the facts presented in Adams, supra, a police

officer was on patrol at about 2:15 a.m. in a high crime

area. A person known to the officer approached his

patrol car and informed him that an individual seated in

a nearby vehicle was carrying narcotics and had a gun at

his waist. The officer approached the vehicle to investi-

gate the informant’s report. The officer tapped on the

window and requested the occupant to open the door. The

occupant rolled the window down instead, at which time

the officer reached into the car and removed a fully loaded

revolver from the occupant’s waistband. This Court held

that the officer was justified in making an investigatory

stop based solely on the information received from the

informant. Adams v. Williams, supra, at 146-147.

‘In reaching this conclusion, we reject respondent’s

argument that reasonable cause for a stop and frisk

can only be based on the officer’s personal observa-

tion, rather than on information supplied by another

person.” Adams, supra, at 147.

While this Court noted that the informant’s unverified tip

may have been insufficient for a narcotics arrest or search

warrant under previous decisions, the informant carried

enough indicia of reliability to justify the officer’s brief

and investigatory stop. Adams, supra, at 147. Among the

indices of reliability was the fact that the informant was

known to the officer, had supplied the officer with infor-

mation in the past, that the informant came forward per-

sonally to give information that was immediately verifi-

able at the scene, and under state law, might have been

subject to arrest for making a false complaint. Adams,

supra, at 146-147.

In the instgnt case, the informant was a person known

to the officers. The informant was in fact a part-time

deputy. The informant relayed to the officers his obser-

vation of a vehicle being driven in an erratic manner and

his belief that possibly the driver was drunk. The in-

formant gave a precise description of the vehicle, its

location, the direction it was headed, and the number of

passengers in the vehicle. Although the officers did not

observe the automobile in motion, all other information

supplied by the informant was verified preceding the

investigatory stop. The informant even drove past the

intersection where the two vehicles were stopped and

radioed the officers that ‘that was the vehicle he had

6

described to officers earlier. It must also be noted that

under existing Iowa law, the informant also was subject

to immediate arrest for making a false complaint to a

police officer. Supp., The Code, 1977, Criminal Law and

Criminal Procedure (Iowa Criminal Code), Section 718.6.

The indices of reliability shown in the instant case

favorably compare with the indices of reliability found

in Adams, supra, and are thereby sufficient to justify an

investigatory stop. Petitioner’s allegation that such an

investigatory stop was unjustified is unsupportable in

the face of this Court’s decision in Adams v. Williams,

supra.

Not only was the investigatory stop justified, it was

the officer’s duty to stop Petitioner on the information

they held.

“The Fourth Amendment does not require a police-

man who lacks the precise level of information neces-

sary for probable cause to simply shrug his shoulders

“a 4

and allow a crime to occur or a criminal to escape.’

Adams v. Williams, supra, at 145.

The report of an automobile being driven in an erratic

manner suggesting an intoxicated driver and reported by

a citizen known to the officers, demands the brief investi-

gatory stop as part of the “essence of good police work.”

Adams, supra, at 145.

II.

The police officers, upon making the investigatory

stop and observing an open can of beer sitting on the

floorboard of the front passenger side, instructed the

occupants to get out of the car. One of the officers asked

Petitioner if the car belonged to him and, if so, whether

Petitioner would consent to a search of the vehicle. Peti-

tioner in turn responded that the vehicle was his but

asked the officer if he had a search warrant. The officer

told Petitioner that he did not have one, but that he

could go and get one. Petitioner then agreed to the

search.

Petitioner alleges in his Petition that his consent to

the search was not voluntarily or knowingly given on the

grounds that the Petitioner acquiesced to consent because

of a lawful claim of authority to search expressed hy the

officer. In support of this allegation, Petitioner cites

Bumper v. North Carolina, 391 U. 8. 453 (1968).

The Iowa Court of Appeals declined to consider this

issue holding that the warrantless search of Petitioner’s

car was justified as one made incident to a lawful arrest,

and as one made in the presence of exigent circumstances

and probable cause to search for contraband (App. 16).

Regardless, Petitioner’s allegation is without merit.

It is not disputed that police officers may conduct a war-

rantless search of an automobile or house where its oceu-

pant voluntarily and knowingly consents to such a search.

Schneckloth v. Bustamonte, 412 U. 8S. 218 (1973).

Petitioner did consent to the search of his car. There

is no evidence Petitioner’s consent was equivocal or co-

erced. That Petitioner was aware of his rights is evident

from his question of the officers as to whether they had

a search warrant. See, United States v. Curiale, 414 F.

2d 744 (2nd Cir. 1969).

o 2)

There is nothing coercive about the officers’ reply

that they could get one. Petitioner could have continued

to deny the officers permission to search, but he chose

not to do that. He consented to the search. Petitioner

was not handeuffed when he consented. His consent was

not obtained at gun point or by threats if he refused con-

sent.

Courts which have considered whether an officer’s

statement that he would get a warrant if consent to

search was denied have uniformly held that such a state-

ment is not, by itself, sufficient to vitiate a subsequent

eonsent. Barlow v. State, 280 A. 2d 703 (Del. Super.

1971); Beaupre v. State, 526 S. W. 2d 811, 815 (Tex.

Crim. App. 1975); Commonwealth v. Woods, 368 A. 2d

304 (Pa. 1976); Mack v. State, 298 So. 2d 509 (Fla. 1974) ;

People v. McLure, 39 Cal. App. 3d 64, 113 Cal. Rptr. 815

(1974); State v. Douglas, 260 Ore. 60, 488 P. 2d 1366

(1971) ; State v. Hirsch, 518 P. 2d 649 (Ore. 1974); State

v. Rathburn, 195 Neb. 485, 239 N. W. 2d 253 (1976); State

v. Suchy, 277 N. E. 2d 459 (Ohio 1971); Stephanson v.

State, 494 S. W. 2d 900 (Tex. 1973); United States v.

Agosto, 502 F. 2d 612 (9th Cir. 1974); United States v.

Culp, 472 F. 2d 459 (8th Cir. 1973); United States v.

Curiale, 414 F. 2d 744 (2nd Cir. 1969); United States v.

Miller, 442 F. Supp. 742 (D. Maine 1977); Whitman v.

State, 25 Md. App. 428, 336 A. 2d 514 (1975). But see,

Poe v. Oklahoma City, 483 P. 2d 1190 (Okla. Crim. App.

1971); State v. Lewis, 80 N. M. 274, 454 P. 2d 360 (1969).

Even those jurisdictions which held otherwise, subsequent

decisions have found valid consents even when officers

note that a search warrant may be obtained, explaining

that each case must be decided on its own facts. Bell v.

9

State, 512 P. 2d 226, 231 (Okla. Crim. App. 1973); State

v. Carlton, 83 N. M. 644, 495 P. 2d 1091, 1097 (1972).

From the facts presented herein, it is evident that Peti-

tioner voluntarily and knowingly consented to the war-

rantless search of his vehicle.

Petitioner also alleges that even if he consented to

the search of the automobile, the officers exceeded the

scope of the consent by searching the automobile’s trunk,

thus, requiring any evidence seized as a result of the al-

leged consent to be suppressed. Respondent contends

that the scope of a warrantless search of an automobile,

where consent is obtained to search the vehicle, is not ex-

ceeded merely because the officer searches the trunk of

such vehicle. The Fifth Cireuit has held that the war-

rantless search of an automobile trunk pursuant to consent

of its owner to search the vehicle is justified, especially

where the owner makes no objection to the scope of the

officer’s search. United States v. Villarreal, 565 F. 2d

932, 937 (5th Cir. 1978). See also, Shue v. State, 129 Ga.

App. 757, 201 8. E. 2d 174 (1973). Petitioner’s complaint

“8 without merit.

II.

Regardless of the issue of consent, the search of

Petitioner’s car was valid for three reasons.

First, the officers’ observations of the open ean of

beer and the occupant’s attempt to hide a pipe gave the

two officers probable cause to believe there was contra-

band in the ear. This probable cause made the search of

Petitioner’s car reasonable and valid. Chambers v. Mar-

oney, 399 U.S. 42 (1970); State v. Baych, 169 N. W. 2d

578 (Iowa 1969). Where there is probable cause for

believing that the automobile which he stops and seizes

has illegal contraband, he may search for it. Carroll v.

United States, 267 U.S. 132 (1925). Petitioner’s reliance

on United States v. Chadwick, — U. 8. —, 97 S. Ct. 2476,

53 L. Ed. 2d 538, is misplaced. In Chadwick, supra, a

locked footlocker was transported by federal narcotics

agents to the federal building in Boston, after the foot-

locker had been seized by federal agents from the open

trunk of a parked automobile during the arrest of those

who were in possession of the footlocker. Federal nar-

cotic agents subsequently searched the footlocker without

a search warrant and without the consent of the arrested

persons. This Court held that such a search violated the

Fourth Amendment, the search being unreasonable with-

out the safeguards a judicial warrant provides. Chadwick,

supra, — U.S. —, 97 S. Ct. 2476, 2485, 53 L. Ed. 2d 551.

However, this Court noted that the initial detention of the

footlocker from the trunk was valid as a sufficient guard

against any risk that evidence might be lost. Chadwick,

supra, at — U.S. —, 97 S. Ct. 2485, 53 L. Ed. 2d 550. In

the instant case, the initial search of Petitioner’s auto-

mobile was justifiable and served to place a sufficient

guard against any risk that evidence might be lost.

Secondly, the search of Petitioner’s car was incident

to the arrest of Petitioner and therefore constituted a

valid search. State v. Farrell, 242 N. W. 2d 327, 330 (lowa

1967).

Lastly, as the Iowa Court of Appeals so held, the

search was also justified as one made in the presence of

exigent circumstances (App. 16). The cars mobility and

possible destruction of evidence a likely circumstance

11

demanded an immediate search. Carroll v. United States,

supra,

The warrantless search of Petitioner’s automobile was

Justified and Petitioner’s complaints are without merit.

i —

Vv

CONCLUSION

The Iowa Court of Appeals did not err in holding

that the officer’s made a proper and dutiful investigatory

stop of Petitioner’s vehicle, and had sufficient justifica-

tion upon probable cause to conduct a warrantless search

of Petitioner’s vehicle. The Petition for a Writ of Cer-

tiorari should be denied.

4

Respectfully submitted,

RICHARD C. TURNER

Attorney General of Iowa

RAY SULLINS

Special Assistant Attorney General

State Capitol

Des Moines, Iowa 50319

Attorneys for Respondent

CERTIFICATE OF SERVICE

I, Ray Sullins, Special Assistant Attorney General

for the State of Iowa, hereby certify that on the 13th

day of September, 1978, I mailed three (3) copies of Brief

for Respondent in opposition, correct 1st class postage

prepaid to:

Arthur L. Buzzell

Newport, Buzzell, Liebbe & Fortini

306 Citizens Federal Building

Davenport, Towa 52801

12

I further certify that all parties required to be served

have been served.

RAY SULLINS

Special Assistant Attorney General

State Capitol

Des Moines, Iowa 50319