Petition — Brown v. Florida

ai" 2 | RECEIVED

MAY 18 1978

OFFICE OF THE CLERK

IN THE SUPREME COURT, U.S.

SUPREME COURT OF THE UNITED STATES

October Term, 1977

No. 7-67 69

CHARLES HUGH BROWN,

Petitioner,

-vs-

STATE OF FLORIDA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE DISTRICT

COURT OF APPEAL, FIRST DISTRICT, STATE OF FLORIDA

TOBIAS SIMON, P. A.

1492 South Miami Avenue

Miami, Florida 33130

RICHARD C. McFARLAIN

Post Office Box 1123

Tallahassee, Florida 32302

NORMAN J. ABOOD

2552 Gulf Life Tower

Jacksonville, Florida 32207

Attorneys for Petitioner

May 1978

INDEX

Opinions Below ° . ° :

Jurisdiction . ‘ ‘ ‘ °

Questions Presented ‘ ‘ .

Constitutional Provisions Involved ‘

Statement of the Case

Reasons for Granting the Writ |

I ‘ °

II é °

aan . e

Conclusion °

Appendix . °

Motion to Suppress

dated July 8,

1975

Order on Motion to Suppress dated July Il,

Decision of District Court of Appeal,

First District, dated June 15, 1977

Opinion of District Court of Appeal,

First District, dated July 25, 1977

Opinion of Supreme Court of Florida,

dated December 8,

Brown v. State,

Opinion of Supreme Court of Florida,

1977

355 So.2d 512

dated February 20, 1978 ‘

8A

9A

Table of Cases

Accarino v. United States, 85 U.S.App.D.C.

° -400, F. 456, 460-61

(1949) . . . . . . . .

Agnello v. United States, 269 U.S. 20,

33, 46 S.Ct. 4, 6, 70 L.Ed. 145 (1925)

Beck v. Ohio, 379 U.S. 89, 13 L.Ed.2d 142,

S.Ct. 223, 3 O.Misc. 71, 31,

0.Ops.2d 80 (1964) . ° ° ° .

Brinegar v. United States, 338 U.S. 160,

176, 93 L.Ed. 1879, 69 S.Ct. 1302

(1949) * ‘ ‘ * i ° ‘ °

Camara v. Municipal Court, 387 U.S. 523,

87 S.Ct. 1727, 18 L.Ed.2d 930 (1967) .

Chappell v. United States, 119 U.S.App.

D.C. 356, 352 F.2d 935 (1965) ° °

Dorman v. United States, 140 U.S.App.D.C.

» 435 F.2d 385, 392 (1970) ° °

Draper v. United States, 358 U.S. 307,

3 L.Ed.2d 327, 79 S.Ct. 329 (1959) °

Gerstein v. Pugh, 428 U.S. 103, 113 n 13,

43 L.Ed.2a sf, 95 S.Ct. 854 (1975) ‘

Giordenello v. United States, 357 U.S.

480, 2 L.Ed.2d 1503, 78 S.ct. 1245

(1958) ° ° . . . ° ° .

Johnson v. United States, 333 U.S. 10,

13-14, 68 S.Ct. 367, 369, 92 L.Ed.

436 (1948) ° ° ° ° ° ° °

Jones v. United States, 357 U.!. 493,

499-500, 2 L.Ed.2d 1514, 78 S.Ct.

2253 (19858). ‘ ‘ ° . ‘ .

Kerr v. California, 374 U.S. 23, 10 L.Ed.

" S.Ct. 1623, 24 0O.Op::.2d

201 (1963) P . ° ‘ > ‘ ;

McDonald v. United States, 335 U.S. 45l,

459, 69 S.Ct. 191, 93 L.Ed. 153 (igi 8)

Miller v. United States, 357 U.S. 301, 307,

78 S.Ct. 1190, 2 L.Ed.2da 1332 (1958) .

Morrison v. United States, 104 U.S.App.

p.C., 352-355, 262 F.2d 449, 452 (1958)

-ii-

10

ll

ll

10

Table of Cases

Salvador v. United States, 505 F.2d 1348

(Sth Car. £974) ‘ : ‘ ‘

United States v. Phillips, 497 F.2d 1131,

(9th Cir. 1974) ° " . ° . °

United States v. Santana, wee

49 L.bd.2a 300 (1976) . . . .

United States v. Shye, 492 F.2d 886

t 6 FR 9 4 * - * .* . .

United States v. Watson, 46 L.Ed.2d 598,

Vance v. North Carolina, 432 F.2d 984

(4th Cir. 1970) ° . ‘ . e °

Warden v. Hayden, 387 U.S. 294, 87 S.Ct.

1642, 18 L.Ed.2d 782 (1967) ‘ ° °

Williams v. Florida, 90 S.Ct. 1893, 399

U.S. 78, 26 L.Ed.2d 446 (1970) ‘ *

Wong Sun v. United States, 371 U.S. 471,

479, 9 L.Ed.2d 441, 83 S.Ct. 407 (1963)

Other Authorities

a6 8.8.6. Section 1257 (3) . . A ‘

Art. V, §4(b) (1), Fla. Const. ‘ . -

Art. V, §3(b) (3), Fla. Const. . ‘ .

-iii-

6,9,11,12,13

9,10 |

6 |

10

8,9,13

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1977

No. 77-

CHARLES HUGH BROWN,

Petitioner,

-vs-

STATE OF FLORIDA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE DISTRICT

COURT OF APPEAL, FIRST DISTRICT, STATE OF FLORIDA

Petitioner prays that a writ of certiorari issue to

review the judgment of the District Court of Appeal for the

First District of the State of Florida, entered in the above

entitled case on June 15, 1977.

OPINIONS BELOW

Re The decision of the District Court of Appeal, First

District, dated June 15, 1977, affirmed the Petitioner's con-

viction without opinion. That decision is unreported. Appendix

infra, page 5A.

2. The opinion of the District Court of Appeal, First

District, dated July 25, 1977, denied the Petition for Rehearing

in the cause. That decision is unreported. Appendix infra,

page 6A.

3. The opinion of the Supreme Court of Florida, dated

December 8, 1977, denied a Petition for Certiorari to review

the decision of the District Court of Appeal, First

District.? That decision is reported at 355 So.2d 512 (Fla.

1978). Appendix infra, pages 7A and 8A.

4. The opinion of the Supreme Court of Florida, dated

February 20, 1978, denied the Petition for Rehearing of the

denial of the Petition for Certiorari to the District Court of

Appeal, First District. That opinion is unreported. Appendix

infra, page 9A.

JURISDICTION

The judgment of the District Court of Appeal, First

District, State of Florida, was entered on June 15, 1977, and

became final upon the entry of the Order of the Supreme Court

of Florida denying the Petition for Rehearing, dated February 20,

1978. The jurisdiction of this Court is invoked pursuant to

28 U.S.C. Section 1257(3).

QUESTIONS PRESENTED

i. Whether the Fourth Amendment permits unconsented

night time entry of a dwelling to arrest all occupants therein,

without warrant, in the complete absence of exigent circum-

stances.

2. Whether knowledge that contraband is stored in a

separate garage, and that a sale of some of that contraband by

an unidentified person has been effected, constitutes suffic-

ient probable cause to enter a dwelling known to be occupied

by several persons, at night, to arrest without warrant

all occupants of the dwelling, absent exigent circumstances.

4 Under Art. V, §4(b) (1), Fla. Const., District Courts of

Appeal are “the highest court of [the] State where a decision

could be had," except where the District Court's opinion "is

in direct conflict with a decision of any District Court of

Appeal or of the Supreme Court on the same question of law."

[Fla. Const. Art. V, §3(b)(3)], in which case review by the

Supreme Court of Florida may be had by certiorari. Cf Williams

v. Florida, 90 S.Ct. 1893, 399 U.S. 78, 26 L.Ed.2a 446 (1970).

2 ee

CONSTITUTIONAL PROVISIONS INVOLVED

Ae This case involves the Fourth and Fourteenth Amend-

ments to the Constitution of the United States.

STATEMENT OF THE CASE

At 10:30 P. M. on May 24, 1975, an undercover agent of

the Duval County Sheriff's Office arranged a "buy" of mari-

juana from one Anthony Cataldo. Mr. Cataldo had never been

used as an informant before, nor had his reliability been

previously established. * Upon completing the sale of approxi-

mately six pounds of marijuana to Officer D. E. Taylor, Cataldo

was informed of Taylor's identity and arrested.>

Mr. Cataldo then informed Officer Taylor that the mari-

juana had been purchased from one Chuck Brown at 6209 Schindler

Drive.* Mr. Cataldo stated that an additional 30 to 40 pounds

of marijuana remained in the garage located behind the residence.”

Mr. Cataldo did not state that any marijuana was observed in

the dwelling, although he did indicate that “four or five

people" were in the house at the time. ®

Cataldo did not indicate that any of the occupants were

armed, nor were any weapons found during the subsequent search

of the house. ’ Cataldo gave no indication that any of the occu-

pants of the dwelling were leaving or preparing to leave.®

When asked if there was "any reason to believe that something

2 R Vol. II, pages 56-7.

3 R Vol. II, page 20.

4 This statement was corroborated by the observations of

Detective Howell, who had the house under surveillance and had

seen Cataldo and an unidentified white male walk from behind

the house with a package shortly before Cataldo's arrest. (R

Vol. II, pages 125-26.

5 R Vol. II, pages 24-5.

6 R Vol. II, page 25.

7 R Vol. II, page 92.

8 R Vol. II, page 87.

might be destroyed at the house," Officer Taylor candidly

admitted that "[w]e always have reason to believe that."?

Based solely on Cataldo's statements, corroborated by

the observation of Detective Howell, Officer Taylor telephoned

an Assistant State Attorney and was advised that, in the opinion

of the State Attorney, probable cause existed to obtain a search

10 Although no exigent circumstances

warrant for the premises.

existed which weighed against waiting for the search warrant to

be obtained, Officer Taylor immediately called in additional

police officers and informed them that "it was our plan to go

to the house and arrest the people insider t+ Although Cataldo

had identified Cnuck Brown as the seller of the marijuana, the

officers did not know which of the several occupants of the

12

dwelling was Brown. Officer Taylor "felt like...[all] the

people had committed a felony...[and]) this is the reason the

people were arrestea "3

Notwithstanding the efforts to obtain

a search warrant to authorize this niaiee time incursion into a

dwelling, Officer Taylor "[knew] enough about law enforcement

that [he] didn't need an arrest warrant at that time."14

At approximately 1:45 A. M., four or five police cars

drove to the residence at 6209 Shindler prive.}> The residence

was completely fenced, necessitating that the police officers

drive through a gate and "onto the propert,’ to make the arrests"-®

Upon exiting their cars, the officers observed an unidentified

white male who had just walked from the dwelling to stand on

the stoop. The white male was immediately arrested and

9 R Vol. II, page 59.

10 A search warrant was, in fact, obtained several hours later.

R Vol. I, pages 1 through 5.

1l R Vol. II, page 28.

12 R Vol. II, page 40.

13 R pages 47-8.

14 R Vol. II, pages 60-61.

15 R Vol. II, pages 29-31.

16 R Vol. II, pages 88-89.

17

subsequently identified as the Petitioner, Charles Brown.

Without knocking or announcing in any way their presence

or authority, 7% the policemen entered the house and began a

room to room search. At that point, according to Detective

Taylor, the police officers "were searching for bodies [to

arrest].... We felt like we could do our searching [for

contraband] later when we returned with our search warrant. "??

Some contraband was seized incident to these arrests and, three

hours later, the search warrant was obtained and executed,

yielding 180 pounds of marijuana from the garage.

A Motion to Suppress the contraband was timely filed

with the trial Court, alleging, inter alia, that the defendant's

arrest without warrant under these facts was in violation of his

20

constitutional rights. That motion was denied by the trial

21

Court, following an evidentiary hearing. Thereafter, on

November 4, 1975, the Petitioner pled nolo contendere to the

charge of possession of a controlled substance with intent to

sell, as well as possession of paraphernalia, and was sentenced

to two five year sentences, to run consecutively.7 The plea of

nolo contendere specifically reserved the right to appeal the

trial Court's denial of the Motion to Suppress.

An appeal was timely filed with the District Court of

Appeal for the First District, assigning as error the trial

Court's denial of the Petitioner's Motion to Suppress~> and

asserting that his “warrantless arrest...was illegal and un-

constitutional...." On June 15, 1977, the District Court of

al "Although the police officers, having advanced through the

gate, up the driveway, and onto the porch, then smelled burning

marijuana, as Officer Taylor candidly admitted, "I was...going

to move in and arrest the people, had I smelled the marijuana

or not." (R Vol. II, page 48).

18 R Vol. II, pages 44-45.

19 R Vol. II, page 63. [App., infra, page 1A]

20 R Vol. I, page 17. [App., infra, page 4A]

21 R Vol. I, page 20.

22 R Vol. I, pages 26-27.

23 R Vol. I, page 35.

Appeal for the First District affirmed the conviction, and,

on July 25, 1977, denied Brown's Petition for Rehearing.

Thereafter, a Petition for Certiorari was timely filed

with the Florida Supreme Court, which denied certiorari by its

Order dated February 20, 1978.

~

REASONS FOR GRANTING THE WRIT

x

This Petition raises the question of whether, and under

what circumstances, police may forcibly enter a dwelling, at

night, for the purpose of arresting all of its occupants without

benefit of an arrest warrant. This "grave constitutional ques-

tion,"74 first posed by Mr. Justice Harlan, remains unanswered?”

by this Court. While the Court has previously considered

whether arrests conformed with the constitutional standard, ©

the rule which has been enunciated has emerged from the de-

cisions of the Circuit Courts. Given the "history of the use,

and not infrequent abuse of the power to arrest,"7/ the rule

which has emerged from the decisions of the Circuit Courts? /@

establishes that the Fourth Amendment requires a negative

answer to the question presented. It is therefore submitted

that the decision of the District Court of Appeal for the

First District, apne of Florida, has decided an important

24 Jones v. United States, 357 U.S. 493, 499-500, 2 L.Ed.2d

1514, 78 S.Ct. 1253 (1958).

25 Gerstein v. Pugh, 428 U.S. 103, 113 n 13, 43 L.Ed.2da 54,

95 S.Ct. 854 (1975). This Court recently held that "a duly

authorized law enforcement officer [may] make a warrantless

arrest in a public place even though he had adequate oppor-

tunity to procure a warrant after developing probable cause

for arrest", without violating the Fourth Amendment. U.S. v.

Watson, 46 L.Ed.2d 598, 611 (Howell, J concurring), specifi-

cally reserving the question here presented.

26 Cf Beck v. Ohio, 379 U.S. 89, 13 L.Ed.2d 142, 85 S.Ct. 223,

3 O.Misc. 71, 31 0.Ops.2d 80 (1964); Kerr v. California, 374

U.S.23, 10 L.Ed.2d 726, 83 S.Ct. 1623, 24 0.0Ops.2d 201

(1963); Draper v. United States, 358 U.S. 307, 3 L.Ed.2d 327,

79 S.Ct. 329 (1959); Giordenello v. United States, 357 U.S.

480, 2 L.Ed.2d 1503, 78 S.Ct. 1245 (1958).

27 Wong Sun v. United States, 371 U.S. 471, 479, 9 L.Ed.2d

441, 83 S.Ct. 407 (1963).

27a’ As will be shown in Part III, infra, the requirement of

exigent circumstances has been inferentially accepted by this

Court. U.S. v. Santana, U.S. , 49 L.Ed.2d 300 (1976)

-6-

—ee

question of Federal law which has not, but should be, settled

by this Court. Additionally, as will be shown in part II,

infra, the District Court of Appeal for the First District,

State of Florida, has decided a Federal question in a way which

conflicts with the applicable decisional authority as to the

modicum of probable cause necessary to prevent a warrantless

incursion into a private dwelling, at night, for the purpose of

making an arrest.

The Fourth Amendment provides, in pertinent part:

The right of the people to be secure

in their...houses...against unreason-

able searches and seizures, shall not

be violated, and no Warrants shall

issue, but upon probable cause, sup-

ported by oath or affirmation, and

particularly describing the place to

be searched, and the person or things

to be seized.

It has been long recognized that the Fourth Amendment

protects a right of privacy against unwarranted incursions by

the police and other governmental officials. Perhaps the

greatest protection secured by the Fourth Amendment is the right *

of the people to exclude the police from breaking into their

homes, at night, without a warrant. Recognizing that "[t]he

right of officers to thrust themselves into a home is...a grave

concern, not only to the individual but to a society which

chooses to dwell in reasonable security and freedom from sur-

veillance",*°

‘the Courts have routinely held that a warrantless

police incursion into private property, in a "search" context is

per se unreasonable unless authorized by a warrant with the

sole exception being viewed as one to permit prompt and neces-

29

sary action in emergency situations. Although the applic-

able standards for obtaining a search warrant have been

26 Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct.

367, 369, 92 L.Ed. 436 (1948).

29 Cf Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727,

18 L.Ed.2d 930 (1967).

discussed at length by this Court, the Court below applied a

different standard to the incursion here involved because it

was characterized as an “arrest" as opposed: to a “search”,

therefore distinguishing all of the protections of the Fourth

Amendment and restricting their inquiry to the presence or

absence of "probable cause." But, as noted by Judge Prettyman,

the characterization of the police action as an "arrest" as

opposed to a "search" is a distinction without constitutional

difference.

The officers entered the house to make

a search. It was, to be sure, a search

for a person rather than the usual search

for an article of property, but it was a

search. The officers made this indubi-

tably clear in their testimony; they

went into the house to look for

[Petitioner]. It is true they intended

to arrest him if they found him, and so

the ultimate objective was an arrest.

The government urges that this latter

fact requires that we apply the rules of

law pertaining to arrest rather than the

rules governing search. But the search

was a factual prerequisite to an arrest;

it was the first objective of the entry;

the officers did in fact search the

house. They entered to make a search

as a necessary prerequisite to possible

arrest.

Morrison v. United States, 104 U.S. App.

D.C., 354-355, 262 F.20 449, 452 (1958).

That is not to say that all warrantless arrests are, per

se, invalid for this Court has recognized several exceptions

to the Fourth Amendment's general requirement for a warrant

describing the "person...to be seized." First, and most

obvious, is the situation where a suspect is reasonably

believed to be armed and dangerous. Delay in arresting such

a subject may well increase the danger to the community in

the interim, and to the officers at the time of arrest. This

consideration would bear materially on the ability of police

: ‘ 30

to effectuate a warrantless arrest, even in a residence.

30 Cf Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2a

782 (1967); Chappell v. United States, 119 U.S.App.D.C. 356, 352

F.2d 935 (1965).

Secondly, where there is strong reason to believe that

the suspect will escape if not swiftly apprehended, or that

a delay will permit the destruction of evidence by the suspect,

30a Other considera-

tions, including the gravity of the offense involved; 3+ the

arrest without warrant may be justified.

modicum of probable cause available; and the circumstances under

which the entry is made may affect the ability of police offi-

cers to arrest without warrant.

However, none of those factors was present in this case.

The testimony at the Motion to Suppress unequivocally demon-

strated that the prospective arrestee and other ocgapants of

the house were unarmed; there was no danger of the destruction

of evidence pending the three hour delay necessary to obtain

the search warrant; no indication of impending departure by

any occupant of the house was noted; and the sum total of the

probable cause available to the police was that contraband was

contained in a building contiguous to the premises under the

control of an as yet unidentified white male.

At least four Circuits have adopted criteria for warrant-

less arrests in the home. The criteria were first set forth

in the en banc decision of the District of Columbia Circuit

in Dorman v. United States, 140 U.S.App.D.C. 313, 435 F.2d

385, 392 (1970). These criteria include the commission of a

grave offense; a belief that the suspect is armed; probable

cause to believe the suspect has committed the crime; sus-

picion that the suspect is on the premises; likelihood of

escape if delay:ensues; and the peaceful entry onto the

premises by the police. These criteria have been adopted in

the Fourth, Sixth, Eighth, and Ninth Circuits. Salvador v.

United States, 505 F.2d 1348 (8th Cir. 1974); United States

v. Phillips, 497 F.2d 1131 (9th Cir. 1974); United States v.

30a Cf U.S. v. Santana, supra and Part III, infra.

31 See, e.g., Warden v. Hayden, supra, McDonald v. United

States, 335 U.S. 451, 459, 69 S.Ct. 191, 93 L.Ed. 153 (1948)

(concurring opinicn of Justice Jackson).

Shye, 492 F.2d 886 (6th Cir. 1974); Vance v. North Carolina,

432 F.2d 984 (4th Cir. 1970). The application of these

criteria to the decision below amply demonstrates the viola-

tion of the Fourth Amendment sanctioned in this cause.

II

One of the criteria utilized in determining whether a

warrantless incursion into the privacy of a residence, at

night, for the purpose of making an arrest, is the quantum

of probable cause available at the time of the entry into the

home. As the Second Circuit noted in Dorman v. United States,

supra, “[t]here is some indication that at common law the

degree of proof in hand was material in determining whether

there was not merely probable cause for arrest, but authority

for a 'breaking'." See Judge Prettyman's opinion in Accarino

United States, 85 U.S.App.D.C. 394, 398-400, 179 F.2d 456,

460-61 (1949), cited as a comprehensive discussion in Miller

v. United States, 357 U.S. 301, 307, 78 S.Ct. 1190, 2 L.Ed.2d

1332 (1958). The necessity for establishing a requirement

for a high degree of probable cause in order to justify a

warrantless incursion into a home, at night, is amply demon-

strated by the facts of this case.

Upon arresting Mr. Cataldo and learning that he has pur-

chaseu the marijuana from Chuck Brown at 6209 Shindler Drive,

Detective Taylor called an Assistant State Attorney and was

told that probable cause existed to obtain a search warrant

for the home in question. The protection afforded by the

warrant requirement, however, was illusory since the police

accomplished the same incursion into the Petitioner's home

through the simple expediency of characterizing their actions

as an “arrest" rather than a search. Thus, while a belief

“however well founded, that an article sought is concealed in

a dwelling house furnishes no justification for a search of

=10-

that house without a warrant. And such searches are held

unlawful notwithstanding facts unquestionably showing probable

aa the Court below has held that the same knowledge

cause",

authorizes a forcible entry into that dwelling house by the

police without warrant, for the purpose of making an arrest.

The Fourth Amendment's protection of people in the privacy

of their home cannot turn on so nice a distinction.

The Court below, by authorizing the police intrusion

into the Petitioner's home, late at night, on the minimal

probable cause available to them at the time that intrusion

was made, clearly “leave[s] law abiding citizens at the mercy

of the officers' whim or caprice..." Brinegar v. United States,

338 U.S. 2160, 176, 93 L.Ed. 1879, 69 S.Ct. 1302 (1949). Not

only do the police have no incentive to obtain an arrest warrant

under the rule of law sanctioned below, they have been affirm-

atively shown that the Fourth Amendment strictures applicable to

searches and seizures can be easily circumvented by the pretext

of characterizing their night time incursion into the home as a

"search for bodies" as distinguished from a “search for evi-

dence." It is respectfully submitted that, in the absence of

any exigent circumstances or a quantum of probable cause well

in excess of that evidenced in this cause, the search permitted

here violated the Fourth Amendment to the United States Consti-

tution, regardless of the object of that search.

IIil

This Court examined a similar question in United States

v. Santana, supra. There, the question presented was whether

a warrantless day time arrest, in a "public place" violated

the Fourth Amendment. This Court held that, under the facts

32 agnello v. United States, 269 U.S. 20, 33, 46 S.Ct. 4, 6, 70

L.Ed. 145 (1925).

-ll-

presented in Santana, supra, the warrantless arrest of the

petitioner was not violative of the Fourth Amendment. The

facts in United States v. Santana, supra, when compared to

the facts in the instant case, support the argument herein

contained and amply demonstrate the necessity of further con-

sideration of this issue by the Court.

Santana also involved a “buy” by an undercover narcotics

officer from a third party, one Patricia McCafferty. Unlike

Mr. Cataldo, Patricia McCafferty had been involved in previ-

ous narcotics transactions involving the same undercover

agent. Immediately after the "buy" was consummated, the offi-

cer returned to the location of the sale and, without entering

onto private property, drew “within 15 feet of Santana and got

out of their van, shouting 'police,' and displaying their

identification. As the officers approached, Santana retreated

into the vestibule of her house !">° Id. at 304.

In the context of a day time arrest, the Court considered

the relevant factors in determining whether a violation of the

Fourth Amendment had occurred. First, the Court noted that

Ms. Santana "was not merely visible to the public but as

exposed to public view, speech, hearing and touch as if she

u34 Therefore,

had been standing completely outside her house.

when the police attempted to arrest her “they merely intended

to perform a function which [the Court] had approved in Watson."

Id.

The Court then considered the question of whether the

fact that Santana attempted to thwart her otherwise lawful

3 These facts are in sharp contrast to those presented here.

Here, the delay between the narcotics “buy” and the subsequent

arrest was a matter of hours, not minutes. The police in this

cause neither identified themselves as police officers nor

announced their purpose prior to entering onto the private

property. Additionally, it affirmatively appears that no one

was visible to the policemen in this cause prior to their

driving through the gate and up the driveway in order to arrest

all occupants of the house. Unlike Santana, this arrest occur-

red late at night, and did not involve “hot pursuit" to justify

the police intrusion into the residence.

34 United States v. Santana, supra, at 305.

arrest by retreating into her house would cloak her with addi-

tional Fourth Amendment protections. While inferentially

recognizing additional Fourth Amendment protections, not recog-

nized in Watson, where entry into a domicile was required, the

Court considered the types of exigent circumstances which have

been required by the Circuit Courts.?° The Court noted speci-

fically that delay in arresting Ms. Santana would likely

result in a destruction of the evidence necessary for her con-

viction. The Court recognized that the Fourth Amendment's

protection of domicile was severely limited in a case involving

“hot pursuit." 36 It is respectfully submitted that this

Court's decision in United States v. Santana, supra, cannot be

read to per se justify all warrantless arrests in a domicile

during the day, nor does it intimate that no additional justi-

fication is necessary where such an arrest is to be effected

late at night. Santana simply stands for the proposition

that “a suspect may not defeat an arrest which has been set

in motion in a public place...by the expedient escaping to a

private place.">/ In the absence of the exigent circumstances

specifically noted, and inferentially required, in this Court's

opinion in United States v. Santana, supra, it is respectfully

submitted that the Fourth Amendment's protections against

police intrusion into a domicile at night, without warrant,

cannot be countenanced under the clear command of the Fourth

Amendment.

CONCLUSION

It is respectfully urged that this Court should issue its

Writ of Certiorari to the District Court of Appeal for the

First District, State of Florida; establish that the Fourth

’

35 See Part I, infra.

36 Cf Warden v. Hayden, supra, Johnson v. United States, supra.

37 United States v. Santana, supra, at 306.

/ -13-

Amendment does not permit an unconsented night time entry of

a dwelling to arrest all occupants therein without warrant in

the absence of exigent circumstances; the contrary decision

rendered by the Court below, and remand the case for further

proceedings in accordance with this Court's decision.

Respectfully submitted,

TOBIAS SIMON, P. A.

1492 South Miami Avenue

Miami, Florida 33130

RICHARD C. McFARLAIN

Post Office Box 1123

Tallahassee, Florida 32302

NORMAN J. ABOOD

2552 Gulf Life Tower

Jacksonville, Florida 32207

Attorneys Petitioner

By

TOBIAS SIMON

«

I HEREBY CERTIFY that a true copy of the foregoing was

mailed this 17th day of May, 1978 to Robert L. Shevin, Attorney

General, State of Florida, The Capitol, Tallahassee, Florida

32304.

=lge