Opposition — Robbins v. California

|." Supreme Court, U.S |

;

’

‘

DRE AS 1978 ||

MICHAEL ReUAK, JR., CLERK

In the Supreme Court

OF THE

United States

Ocrosrr TERM, 1978

No. 78-567

JEFFREY RicHaRD Rossins,

Petitioner,

vs.

State or CaLiIFoRNIA,

Respondent.

OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

Eve..ze J. YOUNGER

Attorney General of the State of California

Jack R. WINKLER

Chief Assistant Attorney General—

Criminal Division

Epwarp P. O’Brien

Assistant Attorney General

Currrorp K. THompson, JR.

Deputy Attorney General

Axn K., Jensen

Deputy Attorney General

6000 State Building

San Francisco, California 94102

Telephone: (415) 557-2653

Attorneys for Respondent,

BOWNE-PERNAU WALSH ¢ 1045 SANSOME ST. © &.F.,CAQ411f © (415) 981-7862

- ——-- a—

SUBJECT INDEX

Page

Pree re Sree ee Pr rere Tre 1

U2 ai, } sidine bs Puan s Aaah Siva Week. «phe gene Ok 2

FERAL TEETER TO oe 2

Constitutional provisions involved ...... shy ‘cnet ie dite Seelras 2

I UD ID 4207 5 C9 99s os ho esd cae Sb xe sen avnneed 2

ME HE OE Ot Oa yin’ ha whe 6

The warrantless search of petitioner’s automobile and the con-

tents was justified by probable cause ....................

II

Petitioner's failure to object at trial on the present ground

compels rejection of his claim here ...................... ll

PARISON cotta y's! oh Ne AF Ss ee a 13

TABLE OF AUTHORITIES CITED

Cases

Federal:

Chambers v. Maroney, 399 U.S. 42 (1970) ....7, 8, 10, 11, 12,13

Chapman v. California, 384 U.S. 18 (1967) .............. 13

Coolidge v. New Hampshire, 403 U.S. 443 (1971) ........ 10

Desist v. United States, 394 U.S. 244 (1969) ............ 11, 12

United States v. Anderson, 500 F.2d 1311 (5th Cir. 1974).. 8

United States v. Aviles, 535 F.2d 658 (1976) ............. 8

United States v. Berry, 571 F.2d 2 (7th Cir. 1978) ........ 12

United States v. Canada, 527 F.2d 1374 (9th Cir. 1975) .. 8,11

United States v. Chadwick, 433 U.S. 1 (1977) ............

Rennes RrMareaceskencint oes ea 2, 6, 7, 8, 9, 10, 11, 12, 13

United States v. Choate, 576 F.2d 165 (9th Cir. 1978) ..... 12

United States v. Evans, 481 F.2d 990 (9th Cir. 1973) ..... 8

United States v. Finnegan, 568 F.2d 637 (9th Cir. 1977)... 9

United States v. Giles, 536 F.2d 136 (6th Cir. 1976) ...... 8, 11

United States v. Peltier, 422 U.S. 531 (1975) .............. ll

United States v. Schleis, 582 F.2d 1166 (8th Cir. 1978) .... ll

United States v. Soriano, 497 F.2d 147 (5th Cir. 1974) (en

ee a rer eee 8, 11

il

TABLE oF AuTHoriTies CrTED

CASES

Page

United States v. Stevie, 582 F.2d 1175 (8th Cir. 1978) (en

MEE > ch.vnatdedensen ny Wee nkes eee bie 8,

United States v. Tramunti, 513 F.2d 1087 (2d Cir. 1975) .. 8,11

Wainwright v. Sykes, 433 U.S. 72 (1977) ............... 11,14

State:

‘People v. Cook, 13 Cal.3d 663, 119 Cal.Rptr. 500, 532 P.2d

MMIII oosvess «das c acy seeds vs acvers Gy tea u een 10, 11

india s bok s nix'e ok piebu: kek oule men 7,10

People v. Laursen, 8 Cal.3d 192, 104 Cal.Rptr. 425, 501 P.2d

BF BOD «soc bsccek soe nedeveecehat seus eee 7

Wimberly y. Superior Court, 16 Cal.3d 557, 128 Cal.Rptr.

O41, SE POA 417 (1078). 55.26... ek. Aa chuach coh

Constitutions

United States Constitution:

Pe 6. 0 5. s hls cisau a's s'o'sk pun een 2,6, 11

Fourteenth Amendment, Section] ....................... 2

Statutes

California Vehicle Code:

SME ao 6 t windisl vu os £00) Oe viel Paula eee 3

kg eee Peres ee ee Se 3

CN EE ceive ele ce cette c Oe etl AE eee 3

re I I ee 2

SE MD «wasn sc Bevis. - ste eho ec ae hae 2

EE ES 5. oc a sep abe’ Kew date Cal 2

In the Supreme Court

OF THE

United States

Octoser TERM, 1978

No. 78-567

JerrreEy RicHarp Rossins,

Petitioner,

vs.

State or CALIFORNIA,

Respondent.

OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

OPINION BELOW

The unpublished opinion of the Court of Appeal of the

State of California, First Appellate District, Division

Four, filed on May 9, 1978, and amended on May 22, 1978,

is appended to the Petition for Writ of Certiorari.'

An earlier unpublished opinion filed on June 30, 1976, by the

Court of Appeal, First Appellate District, Division Four, was

vacated by that court by order filed July 22, 1977, and petitioner’s

appeal reinstated for further briefing and oral argument. Petitioner

sought review of the earlier opinion by petition for writ of certiorari

filed in the United States Supreme Court on December 14, 1976

No. 76-817). A response to the petition was filed by the People of

e State of California, following which the Court denied the

petition.

2

On July 5, 1978, the California Supreme Court denied

petitioner’s application for a hearing without opinion.

JURISDICTION

Petitioner would invoke this Court’s appellate jurisdic-

tion under Title 28, United States Code sections 1257 and

2101. Jurisdiction is conferred by Title 28, United States

Code, section 1257(3).

QUESTION PRESENTED

Was the Pre-Chadwick warrantless search of petitioner’s

automobile and its contents, made on the highway in the

early morning, justified by probable cause?

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Amendments Four and Four-

teen, section 1.

STATEMENT OF THE CASE

The District Attorney of Solano County accused peti-

tioner Jeffrey Robbins of possession, possession for sale,

and transportation of marijuana and driving under the

influence of a drug, by an information filed on January 23,

1975 (CT 8-9).? Petitioner pleaded not guilty (CT 11), was

*“CT” refers to the Clerk’s Transcript on Appeal; “RTS” refers

to the Reporter's Transcript of the Suppression Hearing; “RT”

refers to the Reporter's Transcript of trial proceedings. “PHT” refers

to the Preliminary Hearing Transcript which was also considered by

the court at the suppression hearing.

3

tried by a jury (CT 13), and convicted of possession, pos-

session for sale, and transportation of marijuana, but ac-

quitted on the remaining charge (CT 48-49).

Proceeding eastbound on Interstate Route 80 at 1:45

a.m. on January 5, 1975, California Highway Patrol Officer

DePue noticed petitioner driving in the same direction

along parallel Nelson Road (RTS 4-5). As DePue observed

petitioner at a distance of about one tenth of a mile (RTS

5), Robbins twice crossed the center line of the roadway

(RTS 6). Approaching a curve, petitioner’s automobile

drifted into the oncoming lane the full width of the vehicle,

its right wheels reaching the center line (RTS 6). Robbins

returned his auto to the right side of the road but while

negotiating the curve drifted three feet across the center

line (RTS 6-7). DePue also noted that petitioner was driv-

ing 30 miles per hour in what DePue thought was a 55 miles

per hour zone (RTS 6). Judging petitioner’s driving to be

erratic, DePue and Sergeant Stoltz followed and stopped

him “to determine why it had left—was operating outside

of a marked road lane” (RT'S 7).

Petitioner immediately alighted, meeting DePue midway

between their vehicles (RTS 8). The officer asked for Rob-

bins’ operator’s license and ownership registration (RTS

9).* Petitioner, perspiring profusely, swallowing rapidly,

°California Vehicle Code section 4454 requires owners to main-

tain the registration or a facsimile in their vehicle. Vehicle Code

section 2804 authorizes California Highway Patrol officers, “upon

reasonable belief that any vehicle is being operated in violation of

any provisions of this code” to “require the driver of the vehicle to

stop and submit to an inspection of the . . . registration card.”

Vehicle Code section 12951 obliges a driver to carry his license

while driving and to present it upon demand of a peace officer

enforcing traffic regulations.

4

his eyes bloodshot and watery, experienced difficulty in re-

moving the license from his wallet (RT 39-40). When Rob-

bins opened his car door to retrieve his registration,

DePue, standing three to four feet behind him, smelled the

familiar odor of burned marijuana within the vehicle (RTS

9-10; RT 40-42). The officer also noted smoke in the car’s

interior (RT 43).

DePue then pat-searched Robbins for weapons (RT 42;

RTS 10), finding only a vial of a malodorous liquid (RTS

11; RT 43). DePue next entered the passenger compart-

ment to recover a pair of tweezers observed on the front

seat (RT 43, RTS 12). The patrolman previously had ob-

served such devices used to hold marijuana roaches (RT

43). After Robbins vomited (RT 44; RTS 12), DePue re-

entered petitioner’s auto and found two pairs of tweezers

on the dashboard, one with a burned hand rolled cigarette

butt, and a cookie tin on the rear floor (RT 44-45, 47).

Inside the tin were two packs of cigarette papers and a

plastic baggie containing marijuana (RT 48, 145).

While Officer DePue searched the passenger compart-

ment, petitioner remarked to Sergeant Stoltz “What you

are looking for is in the back” (RT 120). Stoltz repeated

this to DePue. Robbins was placed in the patrol vehicle

while DePue unlocked the tailgate of Robbins’ station

wagon, raised the floorboard and removed two marijuana

bricks and a tote bag containing some 30 pounds of mari-

juana (RT 50-53, 140). The bricks were wrapped in green

plastic (PHT 24). The bricks attracted DePue’s attention

because he had heard contraband was wrapped and trans-

ported in this manner (PHT 24). Inspector Grundy of the

\

5

Solano County Drug Abuse Bureau placed the street value

of the seized contraband at approximately $8,000.00 (RT

190), a quantity sufficient to supply an individual user for

17 years (RT 189).

About ten minutes after the contraband was discovered

Robbins was advised of his Miranda rights (RTS 21; RT

58). He was not interrogated by the arresting officers (RT

58). Prior to the admonition petitioner told DePue he did

not wish “to take a fall for this” (RT 58), and asked Stoltz

what it would take “to get out of this?” The sergeant re-

plied that disposition would follow booking. Robbins said,

“In my left pocket, check it.” Petitioner’s left pocket con-

tained $521.00 (RT 122).

Petitioner testified that earlier that day he had met a

woman, known to him only as Carol, who offered to pay

him $500 to drive her to Los Angeles that evening (RT

274). She refused to tell him the purpose of the trip (RT

274). Petitioner nevertheless accepted the offer and the

two embarked on their journey that evening. Petitioner

explained the woman’s absence from the car at the time of

his arrest as the result of a previous disagreement between

the two of them concerning directions and her use of mari-

juana in the car (RT 74). He testified that she exited peti-

tioner’s vehicle somewhere in Walnut Creek, leaving be-

hind approximately 37 pounds of contraband which, un-

known to petitioner, she had previously hidden in the car

(RT 257, 295). She never advised petitioner of her last

name nor did she give him an address or number where

she could be reached (RT 292).

6

ARGUMENT

I

THE WARRANTLESS SEARCH OF PETITIONER’S

AUTOMOBILE AND THE CONTENTS WAS JUSTI-

_ FIED BY PROBABLE CAUSE.

Petitioner contends that the search of his automobile

baggage compartment and of packages found inside it vio-

lated the Fourth Amendment. He does not complain that

the highway patrolman lacked probable cause; the search

followed eir observation of his physical condition, their

noting the odor of marijuana and smoke in the passenger

compartment, their discovery of what appeared to be roach-

holders near the front seat and Robbins’ remark “what you

are looking for is in the back.” Petitioner insists, however,

that the officers’ failure to secure a warrant is inexcusable

and that the 1:45 a.m. on-the-scene search cannot be justified

by the “automobile exception” to the warrant requirement.

Petitioner finds United States v. Chadwick, 433 U.S. 1

(1977), to be controlling (Pet. 9). His contention must

fail because Chadwick is inapplicable. The Court there con-

demned the warrantless search of a double-locked 200 pound

footlocker seized immediately after it had been placed in

Chadwick’s vehicle and searched 90 minutes later after its

removal to a federal building and the arrest of its posses-

sors. The Court explained:

“Once law enforcement officers have reduced luggage

or other personal property not immediately associated

with the person of the arrestee to their exclusive con-

trol, and there is no longer any danger that the arrestee

might gain access to the property to seize a weapon or

7

destroy evidence, a search of that property is no longer

an incident of the arrest.” 433 U.S. at 15.

Petitioner reasons that Chadwick should also control “in

cases of properly stopped vehicles in transit which contain

in closed compartments luggage and sealed packages, items

securely ‘closed against inspection,’ under circumstances

where it is reasonable to have ‘an expectation that their

contents would remain free from public examination’ ” (Pet.

11). However, Chadwick did not decide that question. In-

stead, the Court emphasized that “the Government does not

contend that the footlocker’s brief contact with Chadwick’s

car makes this an automobile search... .” 433 U.S. at 11.

The People do contend that luggage discovered in a trans-

porting vehicle falls within the “automobile exception” and,

upon probable cause, is subject to an on-the-scene warrant-

less search. A fortiori, the exception encompasses packages

not secured by any lock. The “automobile exception” is

based upon the mobility of vehicles, itself an exigent cir-

cumstance, Chambers v. Maroney, 399 U.S. 42, 51 (1970) ;

People v. Laursen, 8 Cal.3d 192, 201, 104 Cal.Rptr. 425,

431, 501 P.2d 1145, 1151 (1972), and the reduced expecta-

tion of privacy one enjoys in an automobile, United States

v. Chadwick, 433 U.S. at 12; People v. Dumas, 9 Cal.3d

871, 882-883, 109 Cal.Rptr. 304, 311-313, 512 P.2d 1208,

1215-1217 (1973). Recognition of a greater expectation of

privacy in personal property than in the vehicle in which

it is stored or transported is neither logical nor consistent

with actual expectations based upon common experience.

Decisions rendered before and after Chadwick confirm

our view. People v. Vermouth, 20 Cal.App.3d 746, 757, 98

Cal.Rptr. 65, 71 (1971), ruled that “it was permissible to

8

search at the place or arrest and as incident thereto every

part of the vehicle and any closed containers within it for

weapons or contraband.” Vermouth relied upon Chambers,

which approved a thorough auto search extending to a com-

partment beneath the dashboard. 399 U.S. at 44. Federal ap-

pellate courts have reached the same result. F.g., United

States v. Giles, 5386 F.2d 136, 139-140 (6th Cir. 1976);

United States v. Canada, 527 F.2d 1374 (9th Cir. 1975) ;

United States v. Tramunti, 513 F.2d 1087, 1104 (2d Cir.

1975) ; United States v. Anderson, 500 F.2d 1311, 1315 (5th

Cir, 1974) ; United States v. Evans, 481 F.2d 990, 994 (9th

Cir. 1973). Especially instructive is United States v. Sori-

ano, 497 F.2d 147 (5th Cir. 1974) (en banc), reaffirmed

sub. nom. United States v. Aviles, 5385 F.2d 658 (1976).

Sitting en banc, the Fifth Circuit there unanimously upheld

an on-the-scene warrantless search of a suitcase removed

from the trunk of a taxicab. 497 F.2d at 147. Soriano ree-

ognized that a different rule might apply were the luggage

first removed from the scene, 497 at 150 n. 6, but never-

theless upheld on-the-scene searches. In short, the Chad-

wick rule, assumed in Soriano, made no difference.

Post-Chadwick federal decisions do conflict. In United

States v. Stevie, 582 F.2d 1175 (8th Cir. 1978) (en banc)

it was held that, although, pursuant to the “automobile

exception” officers could legitimately immobilize a station

wagon and seize suitcases located in the rear, Chadwick

barred a warrantless search of an arrestee’s luggage absent

exigent circumstances. 582 F.2d at 1178-1179. The court

reasoned that an individual’s legitimate expectation that

the contents of his luggage will remain free from public

examination remains present whether the luggage is lo-

9

cated inside or outside an automobile. 582 F.2d at 1179. The

requirement that a warrant be obtained under Chadwick

was held to be triggered once officers obtained exclusive

control over the luggage. Id.

The Ninth Circuit, however, in United States v. Fin-

negan, 568 F.2d 637 (9th Cir. 1977), points out that Chad-

wick “did not substitute a test of expectation of privacy

for probable cause.” 568 F.2d at 641. Noting that the Su-

preme Court did not address the tests for, or scope of, the

automobile search exception because those issues were not

before it, the Ninth Circuit expressed the following view

with respect to the scope of the Chadwick decision:

“Chadwick lays down a rule whereby courts faced

with an invitation by the government to define a new

class of objects which may be searched without a

warrant must consider whether there is a diminished

expectation of privacy with respect to that class of

objects.” 568 F.2d at 641.

It was held in Finnegan that Chadwick does not apply

where there is probable cause to search luggage located in

an automobile and exigent circumstances exist because the

automobile containing the luggage can be moved. Jd. The

court recognized that the application of Chadwick to auto-

mobile exception cases would lead to inconsistent and con-

tradictory results.

“For instance, a police officer could search and seize

a brick of marijuana lying inside the trunk of a car

but not a brick of marijuana lying inside a suitcase in

the trunk of a car.” Id.

The Finnegan decision accurately defines the scope of the

Chadwick holding. Unlike the decision in Stevie, Finnegan

acknowledges and graphically describes the inconsistencies

10

and contradictions which would flow from grafting Chad-

wick onto the automobile search exception rule of Chambers.

Chadwick does not erode the California rule authorizing

a warrantless search of an automobile and its contents

where “(1) exigent circumstances rendered the obtaining

of a warrant an impossible or impractical alternative, and

(2) probable cause existed for the search.” People v. Dumas,

supra, 9 Cal.3d 871, 884, 109 Cal.Rptr. 304, 314, 512 P.2d

1208, 1218.

Probable cause existed for searching both Robbins’ vehi-

ele and his packages. Cf. Wimberly v. Superior Court, 16

Cal.3d 557, 567-568, 128 Cal.Rptr. 641, 647-648, 547 P.2d

417, 423 (1976). The facts which furnished probable cause

were not foreseeable by the searching officers. Contrast

Chambers v. Maroney, 399 U.S. at 51, with United States

v. Chadwick, 433 U.S. at 3-4, and Coolidge v. New Hamp-

shire, 403 U.S. 443, 471 n. 29 (1971) (“we deal here with

a planned warrantless seizure”). It was impractical to seek

a warrant at 1:45 a.m., when Robbins’ auto was out on the

highway. “Reason and good police procedure dictated that

if the officers were to preserve the evidence of illegal ac-

tivity which their investigations had uncovered, an on-the-

scene search of the vehicle was mandated.” People v. Cook,

13 Cal.3d 663, 669, 119 Cal.Rptr. 500, 503, 532 P.2d 148,

151 (1975).

Moreover, Chadwick involved a double-locked footlocker.

There is a constitutional difference between unlocking a

secured container and unwrapping a package, opening a

cookie tin, or looking into a plastic baggie, as occurred

here. That difference reflects varying actual expectations

of privacy manifested by distinct modes of concealment.

11

II

PETITIONER’S FAILURE TO OBJECT AT TRIAL ON

THE PRESENT GROUND COMPELS REJECTION

OF HIS CLAIM HERF.

Petitioner made no objection to the introduction of the

seized evidence at either the suppression hearing or trial

on the ground he raises here. His failure to object compels

rejection of his petition.

First, if Chadwick does no more than re-state exist-

ing Fourth Amendment principles as held by the Eighth

Cireuit in United States v. Schleis, 582 F.2d 1166, 1173

(8th Cir. 1978), petitioner’s failure to show cause why no

objection was made in the trial court bars review of the

issue here. Wainwright v. Sykes, 433 U.S, 72, 86-87 (1977).

Second, were Chadwick held to have silently overruled

Chambers, as well as countless state cases such as Cook

and Vermouth, it would not avail petitioner. Chadwick was

announced on June 21, 1977. The search questioned here

occurred January 5, 1975. At the time of this search both

federal and state courts believed such searches to be law-

ful under Chambers. See e.g. United States v. Giles, supra,

536 F.2d 136; United States v. Canada, supra, 527 F.2d

1374; United States v. Tramunti, supra, 513 F.2d 1087;

United States v. Soriano, supra, 497 F.2d 147; People v.

Vermouth, supra, 20 Cal.App.3d 747, 98 Cal.Rptr. 65. To

use this case as a vehicle to overturn Chambers would be

to afford petitioner a windfall contrary to this Court’s deci-

sions denying retroactivity to new restrictions on searches

and seizures. See United States v. Peltier, 422 U.S. 531,

535-542 (1975); Desist v. United States, 394 U.S. 244, 249-

12

254 (1969). If, indeed, it is presently unclear whether

Chadwick applies to automobile searches, it is doubly so

with respect to searches conducted prior to Chadwick. The

Seventh and Ninth Circuits’ rejection of the retroactive ap-

plication of Chadwick is compelled. United States v. Choate,

576 F.2d 165, 182, n. 20 (9th Cir. 1978); United States v.

Berry, 571 F.2d 2, 3 (7th Cir. 1978).

The failure of petitioner to raise this specific issue at

triai has left the record less than clear in several material

respects. First, the trial court made no finding concerning

petitioner’s consent to search. Indeed, given Chambers and

the state of existing law, no determination was necessary

concerning consent. Had petitioner advanced a theory that

the warrantless search was unlawful because it breached

his right to privacy, a further evaluation of consent would

have been necessitated. A finding of consent would have

barred any consideration by this Court of the issue now

presented.

In addition, although the record indicates that entry

into the back of the station wagon was achieved by unlock-

ing the tailgate, presumably the officers had access to the

back by entry through the unlocked front doors of the

vehicle.* Another matter which most certainly would have

been developed had a Chadwick-type objection been made,

was whether the plastic-wrapped bricks constituted, in

fact, contraband in plain view. Officer DePue testified that

his attention was drawn to the bricks because he had heard

‘The fact that the officer entered the back of the station wagon

by unlocking the tailgate did not come to light at all during the

irr 80) suppression proceedings, but was revealed at trial

13

that contraband was packaged and transported in this

manner (PHT 4). A finding that the bricks were contra-

band in plain view would render petitioner’s argument

with respect to the tote bag harmless beyond a reasonable

doubt. Chapman v. California, 384 U.S. 18, 24 (1967). Thus,

the absence of any pre-trial or trial objection by petitioner

to the admission of seized evidence on the present ground,

requires rejection by this Court of this petition for a writ

of certiorari.

CONCLUSION

While a split of authority among circuit courts on the

question whether Chadwick modifies Chambers might tempt

this Court to grant certiorari in this case, the failure of

petitioner to object to the admission of evidence at trial

on the ground advanced here and the resultant deficient

state court record compels otherwise. While no specific

findings were made by the trial court, the state of the

evidence is such that had an objection been made a rejec-

tion thereof would have been appropriate because peti-

tioner consented to the search and Officer DePue found the

marijuana bricks in plain view.

The search in this case occurred almost two and a half

years prior to the Chadwick decision. This Court’s previous

rejection of retroactive application to new restrictions on

searches mandates dismissal of this petition. To grant the

petition is to afford petitioner a windfall clearly contrary

to all this Court’s decisions denying retroactivity. And,

even if Chadwick does not state a new restriction upon

searches, petitioner has not shown cause why no objection

14

was made in the trial on the ground asserted here. His fail-

ure to do so bars review of the issue by this Court under

Wawmwright.

Dated, December 8, 1978.

Eve.ue J. YounGcER

Attorney General of the State of California

Jack R. WINKLER

Chief Assistant Attorney General—

Criminal Division

Epwakrp P. O’Brien

Assistant Attorney General

Currrorp K. THoMpPson, JR.

Deputy Attorney General

Awn K, Jensen

Deputy Attorney General

6000 State Building

San Francisco, California 94102

Telephone: (415) 557-2653

Attorneys for Respondent.