# Opposition — Robbins v. California

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1979
- **Citation:** 443 U.S. 903

## Text

|." 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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1836%3A2. Public record. Not legal advice.