Opposition — Oregon v. Fondren

Suprema Coyst, U, a

FIL Ep’ |

JUL 16 1979

In The

Supreme Court of the United States

October Term, 1978

No. 78-1760

STATE OF OREGON, Petitioner,

V.

GARY LEE FONDREN, Respondent.

-ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT

OF THE STATE OF OREGON

RESPONDENT'S BRIEF IN OPPOSITION

LARRY O. GILDEA

J.P. GRAFF

LARRY O. GILDEA, P.C.

342 Fast 12th Avenue

Eugene, Oregon 97401

Telephone: (503) 342-1771

Attorneys for Respondent

Table of Contents

Page

Constitutional Provisions .............0cceececeeceeee 1

Questions Presented ............ ee pL hee a Bye TN 5 40 2

I a le eh ee alae 2

Reasons Why the Writ Should be Denied ................ 4

1. It is Not Clear Whether the Oregon Supreme

Court Decided this Case Under the State

Constitution or the Federal Constitution .......... 4

2. There is Only One Issue in This Case, and It is

Not Sufficiently Important to Warrant This

rE ED nn dd kc oO bes We Ko 40 REV ERRORS 5

3. The Allegedly Conflicting Decisions on Which

Petitioner Relies Are Distinquishable on

i RN ee rR nA eA eee ee eae 6

CRG t Siete a Ne, . eR th Us 4 garth gt gate 10

Table of Authorities

Cases

Cardwell v. Lewis, 417 US 583 (1974) ............00008. 7

Carroll v. United States, 267 US 132 (1925) ............ 10

Chambers v. Maroney, 399 US 42 (1970) ................ 6

Commonwealth v. Holzer, 480 Pa 93, 389 A2d 101 (1978) .. 9

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

State v. Florance, 270 Or 169, 527 P2d 1202 (1974) ....... 4

State v. Flores, 250 Or 273, 570 P2d 965 (1977) .......... 4

State v. Fondren, 285 Or 361, 591 P2d 1374 (1979) ....... 5

State v. Greene, 285 Or 337, 591 P2d 1362 (1979) ........ 4

United States v. Abascal, 564 F 2d 821 (9th Cir 1977) cert.

den. sub nom. Abascal v. United States, 435 US 953

CFRFOE ck ke vuety 60s 04 bes cee eee se 8

United States v. Ramirez, 513 F2d 72 (Sth Cir 1975),

cert. den. sub nom. Ramirez v. United States, 423

FS Stak CUTER ck cve-c 6d Cee ee ae ea 8

Constitutional Provisions

United States Constitution, Amendment lV .............. 1

United States Constitution, Amendment XIV ............ 2

Constitution of Oregon, Article |, Section9.........0..... 2

In The

Supreme Court of the United States

October Term, 1978

No. 78-1760

STATE OF OREGON, Petitioner,

Vv.

GARY LEE FONDREN, Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT

OF THE STATE OF OREGON

Respondent’s Brief in Opposition

The respondent, Gary Lee Fondren, respectfully requests

that this Court deny the petition for writ of certiorari seeking

review of the Oregon Supreme Court's opinion in this case,

reported at 285 Or 361, 591 P2d 1374 (1979).

Respondent accepts petitioner's statement of the opinion

below and of the basis of this Court's jurisdiction.

Constitutional Provisions

4

United States Constitution, Amendment IV:

“The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated... .”

2

United States Constitution, Amendment XIV, § 1:

4s

[Njor shall any State deprive any person of life,

liberty or property, without due process of law.. .””

Constitution of Oregon, Article I, Section 9:

“No law shall violate the right of the people to be secure

in their persons, houses, papers, and effects, against unreason-

able search, or seizure; and no warrant shall issue but upon

probable cause, supported by oath, or affirmation, and particu-

larly describing the place to be searched, and the person or

thing to be seized.”

Questions Presented

1. Did the Oregon Supreme Court decide this case under

the Fourth Amendment of the United States Constitution,

as applied to the States by the Fourteenth Amendment, or

under Article I, Section 9 of the Oregon Constitution?

2. Were exigent circumstances present which justified the

warrantless seizure of respondent's vehicle from an employe

parking lot upon probable cause?

Statement of the Case

Respondent accepts petitioner's statement of the general

background of the case and the manner in which the federal

question, if there is one, was presented. The chronology of

events on July 22, 1976 may be fixed more accurately, how-

ever, than appears from petitioner's statement of the facts.

Between 6:30 and 7:30 that evening, police officer Meier

received information at his home in Bend, Oregon, from a

confidential reliable informant that some marijuana was

contained in the trunk of a vehicle driven by respondent and

presently located in the employe parking lot of the Brooks-

Willamette particle board manufacturing plant, where

respondent was working. (Tr. 3). Within thirty to forty-five

minutes, the officer observed the car on the lot. (Tr. 5, 22).

He went to the police station where he verified registration

details and checked for arrest records and background informa-

tion on respondent. (Tr. 5). Within forty-five minutes after

3

receiving the tip, the officer had acquired and confirmed all

the information that he in fact used to obtain a search warrant

the next day. (Tr. 22).

The officer next spoke to his watch commander about

possible courses of action. (Tr. 6, 17-18). He knew from

previous experience that it took from one and one-half to four

hours to obtain a search warrant. (Tr. 9, 24). Officer Meier

believed from the information given to him that respondent

was working the swing shift at the Brooks-Willamette plant.

(Tr. 25). He learned from another officer that the swing shift

ended at midnight. (Tr. 6). They considered applying for a

warrant and the alternatives if a judge could not be found to

sign one. (Tr. 18). One of the alternatives discussed was the

action ultimately taken — seizing the car without a warrant if

respondent refused to consent to a search and immobilizing

it until a warrant could be obtained. (Tr. 17). Officer Meier

also spoke to a deputy district attorney about courses of action

probably during this period but possibly as early as between

6:30 and 7:30. (Tr. 14).

No attempt was made to apply for a warrant at this time.

Instead, the officer returned to the parking lot and at 8:45

observed the car a second time. (Tr. 6, 18). He did not keep the

vehicle under surveillance, post a guard or return to the police

station to prepare an affidavit. Instead, he did some ‘‘additional

checking” on the respondent. (Tr. 19).

Officer Meier returned to the police station between 10:00

and 10:30 P.M. and started to prepare an affidavit for a

warrant. (Tr. 6). He decided there was not enough time to get

one before respondent's shift ended, so he returned to the

Brooks-Willamette plant, spoke to respondent, indicated the

police had information that there was marijuana in the trunk

of respondent's vehicle, and asked for consent to search the

vehicle in the parking lot. (Tr. 6:7). When respondent refused,

officer Meier told him the car would be seized and held until

a warrant could be obtained. (Tr. 7). Respondent went inside.

(Tr. 7). Sometime between 11:30 and 11:45 the car was towed

to the police garage, where it was stored overnight until a

search warrant was obtained the next day.

Reasons Why the Writ Should be Denied

1. It is Not Clear Whether the Oregon Supreme Court

Decided this Case Under the State Constitution or the

Federal Constitution.

The present case was one of four automobile search and

seizure cases consolidated for review by the Oregon Supreme

Court. In the leading case, State v. Greene, 285 Or 337, 591

P2d 1362 (1979), the court discussed general principles

governing automobile searches and seizures in an effort to

clarify Oregon law in this area. The court, in deciding the

present case, relied upon its discussion in Greene.

In Greene, the defendant invoked Article |, Section 9 of

the Oregon Constitution as well as the Fourth and Fourteenth

Amendments of the United States Constitution. On two prior

occasions the Oregon Supreme Court has held that in the area

of vehicle search and seizure the Oregon Constitution affords no

more protection that the federal Constitution. State v.

Florance, 270 Or 169, 527 P2d 1202 (1274); State v. Flores,

250 Or 273, 570 P2d 965 (1977). It so held again in Greene

and declined to depart from analyses developed in the decisions

of this Court.

Justices Linde and Lent, specially concurring in the result,

described the procedure adopted below as one of

a

.. looking directly to the decisions of the United

States Supreme Court and then ‘adopting’ them to deal

with each particular case. As a result, we sometimes do not

know what the law in Oregon is until the United States

Supreme Court tells us.’’ State v. Greene, supra, 285 Or

at 349.

In view of this tradition, respondent in the present case

did not rely upon any provision of the Oregon Constitution in

challenging the warrantless seizure of his automobile. Never-

theless, to the extent to which the court below adopted federal

constitutional standards governing automobile searches and

seizures in State v. Greene, made them part of Oregon law

under Article |, Section 9 of the Oregon Constitution, applied

the discussion in Greene to the facts of the present case, and

found no exigent circumstances present here, it is unclear

whether the decision below was based on the federal or the

state constitution.

2. There is Only One Issue in This Case, and It is Not

Sufficiently Important to Warrant This Court's

Attention.

The Supreme Court of Oregon, reversing the Oregon Court

of Appeals, ruled that the warrantless seizure of respondent's

automobile was justified under federal, and hence state, con-

stitutional standards only if exigent circumstances were present.

It found from the record before it that such circumstances

were not present. Petitioner does not challenge the constitu-

tional premises of the court's analysis, but only its factual

finding that exigent circumstances were not present.

It is clear from the opinion below that the court carefully

considered the evidence before it on the issue of exigency.

Officer Meier's testimony establishes that there were at least

four hours within which to apply for a search warrant before

respondent’s vehicle was likely to be removed from the parking

lot. !t would take no more than four hours to obtain a warrant.

Police did not think it likely the vehicle would be removed

before midnight as no steps were taken to prevent its removal

earlier in the evening. Shortly after acquiring all the information

that was needed and that was in fact used the next day to

establish probable cause, the police reviewed alternatives open

to them. These included seizing and searching the car pursuant

to a warrant and seizing the car without a warrant shortly

before respondent’s shift ended and holding it overnight until

a warrant could be obtained. Further investigation was un-

necessary to establish probable cause for obtaining a warrant,

so there was no reasonable justification for the delay in

applying for a warrant. Under such circumstances, it would

appear that police inactivity was itself a primary factor

contributing to any exigencies that may have existed at 11:30.

As the court below stated, ‘’The officer cannot create exigent

circumstances by his own inaction."’ State v. Fondren, supra,

285 Or at 367.

The question presented on this record is not, as petitioner's

second question suggests, whether police must act to obtain

6

a warrant immediately upon acquiring the probable cause. It

is, rather, whether the state may invoke the exigent circum-

stances exception to the warrant requirement to justify a

warrantless seizure of a parked automobile from an employe

parking lot upon information that marijuana was contained in

its trunk when police intended to search the vehicle, they knew

there was little likelihood that it would be removed within

the time needed to obtain a warrant, there was ample

opportunity to submit the issue of probable cause to a

magistrate, police delayed in applying for a warrant until it was

probably too late to obtain one, there was no reasonable justifi-

cation for the delay and the driver subsequently refused to

consent to a search. The court below considered this question

fully and decided it correctly upon the basis of the record

before it.

3. The Allegedly Conflicting Decisions on Which Fetitioner

Relies Are Distinguishable on Their Facts.

Petitioner contends the decision below conflicts with two

decisions of this Court and three decisions of federal and state

courts. Each of the cases cited is distinguishable on its facts

from the present case, however.

In Chambers v. Maroney, 399 US 42 (1970), a moving

vehicle suspected of involvement in a robbery was stopped on

the roadside at night, the occupants arrested and the car seized

and taken to the police station where it was subsequently

searched. Both the seizure and subsequent search were

warrantless. The seizure was upheld on the grounds that exigent

circumstances existed at the time of the initial stop and in those

circumstances police may do one of two things: conduct an

immediate roadside search or seize the vehicle and conduct a

reasonably prompt warrantless search at the station. In dictum,

the Court stated that a third alternative open to the police is to

seize the vehicle and hold it until a warrani is obtained. Even

here, however, exigent circumstances must be present to justify

the seizure. °

In Chambers, the stop occurred within an hour after police

acquired probable cause. The exigent circumstances which

justified the seizure were that the car was moving, it was late

at night, its occupants were alerted to police interest, and the

car was pulled over in a parking lot where it was impractical

and perhaps unsafe to conduct a search. None of those factors

is found in the present case. Furthermore, there was no issue

of police delay in Chambers as there is here.

In Cardwell v. Lewis, 417 US 583 (1974), police wished to

examine the exterior surfaces of respondent's vehicle. They had

probable cause to conduct such a search several hours before

they arrested respondent and seized his vehicie from a com-

mercial parking lot. Following his arrest, police overheard

respondent instruct his attorneys to ask his wife to drive the car

home. Shortly thereafter the car was removed from the com-

mercial lot to a police lot, where its exterior was examined.

A plurality of this Court held that exigent circumstances existed

at the time of seizure — namely, the likelihood that respon-

dent’s wife would remove the car from the parking lot before

a warrant could be obtained. The principle announced in

Chambers therefore justified an examination of the vehicle’s

exterior in the commercial lot or its seizure and a reasonably

prompt search thereafter. Furthermore, since the search was

limited to an examination of the car’s exterior, it did not

infringe any expectation of respondent's privacy.'

The plurality observed that where probable cause previously

exists the reasonableness of seizing a car under exigent circum-

stances is not foreclosed by failure to obtain a warrant at the

first practical moment. 417 US at 595. This observation,

however, was made in a case where police failure to act in no

way contributed to any exigent circumstances present at the

time of seizure.

In the present case, of course, police wished to search an

interior portion of respondent’s automobile, not its surface.

' The plurality was careful to remark:

“This is not to say that no part of the interior of an automobile has

Fourth Amendment protection; the exercise of a desire to be mobile does

not, of course, waive one’s right to be free of unreasonable government

intrusion...”

“In the present case, nothing from the interior of the car and no

personal effects which the Fourth Amendment has traditionally been

deemed to protect, were searched or seized and introduced in evidence.”

417 US at 591.

8

Such a search would infringe upon his expectation of privacy.

Furthermore, the court below expressly found that no exigent

circumstances existed at the time of seizure. Even though it

was late at night, the police were prepared to search the car

in the parking lot with respondent's consent. Finally, police

knew that the vehicle would be driven away from the parking

lot at a certain time. Hence, here, unlike in Cardwell, delay in

applying for a warrant by itself contributed to conditions,

if any, making it impracticable to get one.

In United States v. Ramirez, 513 F2d 72 (5th Cir 1975),

cert. den. sub nom. Ramirez v. United States, 423 US 912

(1975), undercover government agents had arranged to purchase

and take delivery of a quantity of marijuana from defendants

at a prearranged location in four days’ time. A few hours before

delivery, the agent in charge decided the delivery spot was

inappropriate for a nighttime operation. Other agents, acting

according to his instructions, subsequently located the truck

carrying the marijuana parked at a service station, arrested the

occupants and conducted a warrantless search on the spot.

Defendants contended that the search was invalid because

the agents, having had probable cause to search for four days,

had foregone a genuine opportunity to get a warrant. The court

rejected this contention, finding that no genuine opportunity

was missed. The agents’ original intent was to obtain evidence

that defendants were distributing marijuana, not to search the

truck. They changed their intent only one and one-half hours

before the search, when there was no longer time to apply for

a warrant. The court stated:

‘[T]here is no requirement, constitutional or otherwise,

that in order to validate unforeseen possible searches law

enforcement officials must obtain search warrants when the

operation being conducted does not contemplate a search.”

513 F2d at 75.

The present case is distinguishable from Ramirez in that the

sole object of the police operation was to search respondent's

vehicle and a genuine opportunity to obtain a warrant existed.

The present case may also be distinguished from the United

States v. Abascal, 564 F2d (9th Cir 1977), cert. den. sub nom.

9

Abascal v. United States, 435 US 953 (1978). In the course of

investigating another incident, narcotic agents learned from a

reliable informant that defendant’s automobile, then parked

at his home, contained a quantity of LSD. They placed his

home and automobile under surveillance. A woman who left

the residence was placed under surveillance, but she eluded the

police, returned to defendant's residence, attempted to flee in

his automobile, and was stopped a few blocks away where the

car was searched without a warrant. Citing Cardwel// v. Lewis,

the court rejected defendant's contention that once probable

cause to search arose police could not evade the warrant

requirement by simply awaiting the arrival of exigent circum-

stances. It pointed out that whether or not the informant’s

tip constituted probable cause, the woman’s attempt to flee

with defendant’s car gave police abundant probable cause to

search the vehicle, and a moving vehicle containing an occupant

alerted to police interest is the classic case of exigent circum-

stances. 564 F2d at 828-29.

While’ no rule requires officers to strike the instant they

have probable cause, as noted in Abasca/, police delay in

obtaining a warrant in no way gave rise to the exigent circum-

stances which justified the search there. Any delay in applying

for a warrant was clearly due to the requirements of an ongoing

investigation of the activities of the defendant and the occu-

pants of his dweiling. The same was not true here.

The final case cited by petitioner is Commonwealth v.

Holzer, 480 Pa 93, 389 A2d 101 (1978). Police seized

defendant’s automobile, parked on a public street, several hours

after his arrest for murder. At the time of the seizure, they

knew an alleged co-conspirator was still at large and defendant's

family and girl friend lived in the area where the automobile

was found. The court rejected defendant's challenge to the

warrantless seizure on two grounds: (1) warrantless seizure of

an automobile following the driver’s arrest is less constitu-

tionally offensive than it might otherwise be since the driver

suffers no inconvenience from its immobilization; and (2) the

possibility of removal of the car from the area by defendant’s

alleged co-conspirator, girl friend or members of his family

constituted sufficiently exigent circumstances to justify seizure.

10

In the present case, respondent was not in custody, so

seizure of the automobile was a more substantial intrusion upon

his privacy expectations than in Ho/zer. Furthermore, police

had no reason to believe that the automobile would be removed

within the time required for obtaining a warrant.

Conclusion

The decision of the Supreme Court requires police to

observe a warrant requirement before seizing a vehicle from a

parking lot open to public view when they have probable cause

to search it, the object of their operation is to search it, they

know that there is no reasonable likelihood of its removal

within the time required to apply for and obtain a warrant, and

there is time and assurance enough to obtain one beforehand.

Far from expanding the warrant requirement or conflicting with

decisions of this or other federal or state courts, this decision

is consistent with constitutional standards announced by this

Court in Carroll v. United States, 267 US 132 (1925), Chambers

v. Maroney, supra, and Coolidge v. New Hampshire, 403 US

443, 458-464 (1971). Therefore, respondent respectfully

requests that the petition for writ of certiorari be denied.

Respectfully submitted,

LARRY O. GILDEA

J. P. GRAFF

LARRY O. GILDEA, P.C.

342 East 12th Avenue

Eugene, Oregon 97401

Telephone: (503) 342-1771

Attorneys for Respondent