Opposition — Highsaw v. Indiana

“Supreme Court, U.&

EILED

MAY 24 1979

MICHABL RODAK, JR., CLERK

IN THE

Supreme Court of the United States

Octroser Term, 1978

No. 78-1622

Sytvester Hicusaw,

Petitioner,

V.

Srate or Inprana,

Respondent.

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

THeEoporE L. SENDAK

Attorney General of Indiana

ALEMBERT W. Brayton

Deputy Attorney General

Office of the Attorney General

219 State House

Indianapolis, Indiana 46204

Telephone: (317) 633-6420

Attorneys for Respondent

C. E. Pauley & Co., Inc., Indianapolis

Page

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QUESTION PRESENTED ...0000.0.........ceeceeseseseeeeseeeeeeeeeees 1

FORE E TNT vscbiistvsnssinctgsceesivisnisicrwnvcniuiemaiinaianiamabitalann 1

STATEMENT OF THE CASE. ..000.0.........ccccceeseeeeeeeeeeees 2

REASONS FOR DENYING WRIT .....0000.00.00.00.000000000-- 3

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INDEX

CITATIONS

Page

Agutlar v. Texas, 378 U.S. 108 (1964) 2. 3

Carroll v. United States, 267 U.S. 132 (1925) 00000... 3

Chambers v. Maroney, 399 U.S. 42 (1970) 2.2... cceceeeeeeee 3

Cooper v. California, 386 U.S. 58 (1967) 0... 3, 4

Delaware v. Prouse, 99 S.Ct. 1391 (1979) oo... cceceeeeeeeee 5

Elliott v. State, 262 Ind. 413, 317 N.E.2d 173 (1974) ........ 5

Guardiola v. State, Ind., 375 N.E.2d 1105 (1978) ............ 4

Harris v. United States, 390 U.S. 234 (1968) 2.000.000... 3,4

Sibron v. New York, 392 U.S. 64 (1968) 0.0... ccccceccecceeceeee 5

South Dakota v. Opperman, 428 U.S. 364 (1976) .............. 4,6

Stone v. Powell, 428 U.S. 467 (1976) o.oo .ccceceecccececeeeeeeeeeeeee 6

Terry v. Ohio, 392 U.S. 24 (1968) oon. cceccceccceseseceseseceeee 5

United States v. Janis, 428 U.S. 433 (1976) on... eee 6

United States v. Martinez-Fuerte, 428 U.S. 543 (1976) .. 5

li

IN THE

Supreme Court of the United States

Octoser Term, 1978

No. 78-1622

Sytvester Hicusaw,

Petitioner,

Ve

Stare or INDIANA,

Respondent.

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

QUESTION PRESENTED

Whether the Court erred in admitting heroin discovered

by a police officer holding search warrants for heroin at

residences under control of Petitioner after Petitioner was

stopped in an automobile as he departed from one of those

residences ?

JURISDICTION

Petitioner claims to have invoked the Fourth and Four-

teenth Amendments to the Constitution of the United

States. However, he fails to show that he invoked or spe-

cially set up the rights, privileges, or immunities which he

1

2

herein presents to the trial court. Therefore, there is no

jurisdiction for this Court to grant certiorari. See A-1.

28 USC § 1257(3).

STATEMENT OF THE CASE

On March 21, 1977, Officer N. W. Matthews, had informa-

tion from a reliable informant, whose previous information

had resulted in at least two arrests and seizures of heroin,

that such informant had personally observed heroin used

and sold at residences under the control of Sylvester

Highsaw N/M AKA Satan at both 3326 North Ruckle Ave-

nue and 4123 North Carrollton Avenue, Indianapolis,

Marion County, Indiana, each within the preceding three

days. He filed two affidavits to that effect in the Marion

Municipal Court, and thereby procured a search warrant

for each of the two stated residences (Petition A11-23).

On March 22, 1977, as Officer Matthews approached the

4123 Carrollton Avenue residence from the south, he ob-

served Petitioner departing that residence and driving an

automobile, and stopped Petitioner in the 4000 block of

North Carrollton Avenue and advised him that he had a

search warrant for that address and for Petitioner. Mat-

thews immediately observed that Petitioner had his hand

balled up into a fist and was starting to lower his clenched

fist. Matthews thereupon ordered Petitioner to keep his

hand where ‘it was and to open it. Petitioner complied,

thereby revealing to Matthews the heroin which was there-

upon seized. Petitioner’s possession of that heroin is the

basis for the charge (Petition A24-27).

Petitioner fails to show that he presented any constitu-

tional grounds, or those grounds sought to be presented in

his Petition, as his objection to the admission of the heroin

(Petition A29-30).

3

Petitioner was found guilty by a jury of possession of

heroin and sentenced to fifteen years imprisonment.

The Supreme Court of Indiana affirmed the conviction.

381 N.E.2d 470 (1978). (Petition A1-6).

REASONS FOR DENYING WRIT

Petitioner’s Motion to Quash the Search Warrants and

his objections to the admission of the heroin into evidence |

at his trial show that he failed to present to the trial court

the Constitutional question which is necessary to invoke

this Court’s jurisdiction and to justify the writ. His motion

to quash shows no constitutional grounds and at most chal-

lenges only the validity of the search warrants and not the

reasonableness of stopping Petitioner’s automobile and the

ensuing seizure of the heroin discovered on Petitioner’s

person. Petitioner’s objection to the admission of the

heroin at the trial likewise failed to present the issue sought

as the basis for the writ.

Had Petitioner presented the issue, his contention is

without merit. Different standards must necessarily apply

to the review of searches and seizures with respect to ve-

hicles from those with respect to dwellings. A search war-

rant is not required for the stopping of an automobile where

the stopping is reasonable. Chambers v. Maroney, 399 U.S.

42, 47-48 (1970); Carroll v. United States, 267 U.S. 132

(1925); Harris v. United States, 390 U.S. 234, 236 (1968) ;

Cooper v. California, 368 U.S. 58, 62 (1967).

Thus, even had the search warrants been defective, Pe-

titioner’s pre-trial motion to quash the warrants would not

have justified the suppression of the heroin. But Petitioner

argues even here that the search warrants failed to comply

with the requirements of Aguilar v. Texas, 378 U.S. 108

(1964), yet ambiguously states that, ‘‘Petitioner has never

4

challenged the validity of these search warrants as they

applied to the two dwellings.’’ (Petition, page 7). In ad-

mitting that the search warrants were valid, Petitioner

fails to show that the trial court erred in denying his

motion to quash.

Even if the search warrants had been invalid, the heroin

found on Petitioner’s person would have been subject to

suppression only if Officer Matthews had exceeded his

authority in the circumstances. Petitioner’s motion to

quash the warrants failed to make the reasonableness of

the stop an issue and failed to present any objections based

on the Fourth and Fourteenth Amendments to the Consti-

tution of the United States. Had Petitioner done so, Officer

Matthews had knowledge of Petitioner’s recent activity in

the drug field, the same knowledge which was incorporated

into his affidavits for the search warrant (Petition A11-13,

18-20), which gave him reasonable cause to stop the Peti-

tioner and to investigate. He had an additional reason, as

he saw Petitioner leave the Carrollton Avenue address, to

stop the car and to serve the warrant upon Petitioner. In

any event, he had sufficient cause to stop the car of the

person whom he recognized as the person whose residence

he was approaching with the purpose of serving a search

warrant for the possession of heroin. South Dakota v.

Opperman, 428 U.S. 364, 367-368 (1976); Cooper v. Cali-

fornia, supra; Guardiola v. State, Ind., 375 N.E.2d 1105,

1110 (1978).

Upon being stopped, Petitioner clenched his hand into

a ball and brought it down. Thereupon, Officer Matthews,

for his own protection, was fully entitled to demand that

Petitioner open his hand, whereupon he saw the contraband

heroin in his plain view. Harris v. United States, supra;

we

4)

Terry v. Ohio, 392 U.S. 24, 27 (1968); Elliott v. State, 262

Ind. 413, 414-416, 317 N.E.2d 173, 175-176 (1974).

The facts known to Matthews were articulable and in fact

had been articulated into the affidavits which he had filed

for the search warrants, and thus established probable

cause for his stopping Petitioner. Umited States v. Mar-

tinez-Fuerte, 428 U.S. 543, 561 (1976). Officer Matthews

had reasonable ground for an individualized suspicion of

Petitioner. Petitioner errs in equating his case to Sibron

v. New York, 392 U.S. 64 (1968), wherein the officer was not

acquainted with Gibson and had no information concerning

him. Also, this case bears no resemblance to Petitioner’s

case of Delaware v. Prouse — U.S. —, 99 S.Ct. 1391 (1979),

which involved a random spot check for possible violations

of operator license and registration requirements. In

Prouse, this Court expressly separated the random spot

check from situations in which there is, ‘‘an articulable and

reasonable suspicion,’’ that the vehicle or an occupant is

subject to seizure for violation of law. That distinction is

manifest in the particular circumstances of the case at bar.

The reasoning of all of the above cases makes it clear

that the situation in this case, wherein search warrants had

already been obtained, justify the stopping of Petitioner

as he departed one of the residences which the officer was

approaching to search pursuant to a search warrant. The

mobile nature of the automobile, its likely use in transport-

ing away and disposing of the very contraband authorized

by the warrant to be sought in the search, and the negligible

chance of preventing such transportation and disposal by

obtaining an additional warrant for the search of the par-

ticular automobile, are practical factors which Respondent

believes cannot be ignored.

6

Contrary to Petitioner’s contention, the Supreme Court

of Indiana did not cavalierly ignore the Fourth and Four-

teenth Amendments in this case. Instead, it addressed itself

to Petitioner’s contention and properly held that, in the cir-

cumstances, Officer Matthews was justified in stopping Pe-

titioner’s automobile and seizing the heroin which he im-

mediately displayed. It is submitted that Petitioner’s

contention was duly considered and that the correct deci-

sion was reached under the guideline of South Dakota v.

Opperman, supra, and the other authorities cited herein.

It may also be suggested that this Court has properly

hesitated in recent decisions to extend the exclusionary

rules, correctly fearing that such rules burden good faith

police efforts with excessive deterrents. United States v.

Jamis, 428 U.S. 433 (1976), pet. for reh. denied 429 U.S. 874

(1976) ; Stone v. Powell, 428 U.S. 467 (1976).

CONCLUSION

For the foregoing reasons, Respondent urges that the

Petition for Writ of Certiorari be denied.

Respectfully submitted,

TueEoporE L. SENDAK

Attorney General of Indiana

ALEMBERT W. Brayton

Deputy Attorney General

Attorneys for Respondent

APPENDIX

IN THE

CRIMINAL COURT OF MARION COUNTY

DIVISION THREE

SratTe oF INDIANA

SS:

County oF MARION

State or Inprana, Honorable Andrew Jacobs, Sr.

vs. Presiding

Sytvester HicHsaw Cause No. Cr77-134C

MOTION TO QUASH SEARCH WARRANT

[a copy has been served]

Now comes the Defendant by his undersigned attorney

and respectfully moves this honorable Court to quash the

search warrants heretofore issued and served upon him on

the 22nd day of March, 1977 at the street of N. Carrollton

Avenue in Indianapolis, Indiana and in support thereof he

assigns the following grounds and reasons:

1. That there is a fatal variance between the affidavit

heretofore made by N. W. Matthews on the 21st day of

March, 1977 before the Honorable Judge Patrick Barton

which was the predicate for the issuance of the search

warrant which is the subject matter of this motion. That

the affidavit makes positive allegations purportedly estab-

lishing probable cause. That the controlled substances laws

of the State of Indiana were violated; that the officers have

admitted in deposition heretofore filed before this Court,

that their search of the defendant allegedly leading to the

discovery of narcotic substances was made pursuant to the

A-1

A-2

authority vested in them by this search warrant for the

person of the defendant. It is a fact, however, that the

search warrant does not contain a command to search the

person of the defendant which constitutes a fatal variance

and subjects any seized substances to being suppressed.

2. That there is a fatal variance between the conclusions

drawn in the affidavit and the probable cause contained

therein to support said conclusion.

3. That the affidavit is without probable cause to sup-

port their inference that any controlled substances were on

the person of the defendant.

4. That the search warrant for Sylvester Highsaw uses

an alias of ‘‘Satan’’ which alias was included in the affi-

davit and search warrant in order to prejudice the rights

of the defendant in bringing before a jury the substance of

the affidavit and search warrant. Further, that the use of

such a fictitious name is fundamentally unfair in view of

the obvious purjorative connotations of that word.

5. That on March 21, 1977, police officers of the City of

Indianapolis and the Marion County Prosecutor’s Office

caused to be issued two search warrants, first for 3326 N.

Ruckle Avenue and the second for 4123 N. Carrollton Ave-

nue both in Marion County and the State of Indiana. That

in addition, the officers requested in their respective affi-

davits that the search include the person of Sylvester

Highsaw and the person of N/F, name unknown and for

any evidence of the conspiracy to violate the Indiana Con-

trolled Substances Act. That under the law, these acts

constitute the issuance of a general search warrant which

is prohibited under the law of the United States of

America.

6. That the probable cause contained in both affidavits

is without sufficiency to include a search of the defendant’s

person and of any N/F, name unknown, of any conspiracy.

7. That the search of the defendant was based solely

upon the authority of this search warrant.

A-3

WHEREFORE, we respectfully request that the search

warrant and any evidence obtained therefrom be suppressed

and that said search warrant is, and ruled thereby to be

invalid.

s/ CuristoPHER C, ZOELLER

Attorney for Defendant

Christopher C. Zoeller :

1135 Market Square Ctr.

Indpls., IN 46204

632-4665