Petition — Willis v. Virginia

Supreme Court brief1980

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IN THE

Supreme Court of the United States

October Term, 1979

» 99-1464

SAMMY LEON WILLIS,

Petitioner,

COMMONWEALTH OF VIRGINIA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF VIRGINIA

THOMAS W. MOSS, JR.

Moss, Moss & Sizemore

1505 First Virginia Bank Tower

Norfolk, Virginia 23510

Counsel for Petitioner

March 3, 1980

INDEX

OPINION BELOW

JURISDICTION

QUESTION PRESENTED

CONSTITUTIONAL PROVISION

INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE

PETITION

CONCLUS ION

CERTIFICATE OF SERVICE

CITATIONS

Cases:

Carroll v. United States,

ae Bay. ke 9

Chambers v. Maroney,

399 U.S. 4 0)

Chemel v. California,

395 U.S. 752 (1969)

Coolidge v. New Hampshire,

403 U.S. 443 (1971)

17, 18, 21

ke v. Taylor Implement Mfg. Co., 10

391 U.S. 216 T1868)

Johnson v. United States,

33 U.S. 10

Katz v. United States,

389 U.S.

Lugar v. Commonwealth,

14 Va.

Manley v. Commonwealth,

211 Va. 146 (1970)

McCray v. Illinois,

386 U.S. 300 (1967)

Rugendorf v. United States,

376 U.S. 528 (1964)

United States v. Alden,

576 F.2aq 772 (1978)

United States v. Helberg,

565 F.2d (1977)

United States v. Lavender,

~ 602 F.2d (1979)

United States v. Polk, 18,

| )

United States v. Stevie,

5 F.

United States v. Trejo-Zambrano,

F.2d 460 (1978)

United States v. Young,

567 F.2a 799 (1977)

Whitley v. Warden,

401 U.S. 560 (1971)

18, 21,

22, 23

CONSTITUTIONAL PROVISIONS

United States Constitution,

Amendment IV 2, 8

MISCELLANEOUS

68 Am.Jur.2d., Searches and

Seizures §65 ll

Section 18.2-91, Code of Virginia,

1950, as amended 25

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1979

SAMMY LEON WILLIS,

Petitioner,

Vv.

COMMONWEALTH OF VIRGINIA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF VIRGINIA

Petitioner respectfully seeks the grant

of a writ of certiorari, vacation of the

judgment below, in light of the Fourth

Amendment to the Constitution of the

United States.

OPINION BELOW

There was a denial of the Petition

for Appeal to the Supreme Court of Vir-

ginia without opinion. The case was

commenced in the Circuit Court of the

City of Norfolk where it was decided

without opinion.

JURISDICTION

The Supreme Court of Virginia denied

the Petition for Appeal on December 3,

1979. Jurisdiction of this Court is in-

voked under 28 U.S.C. §1257 (3).

QUESTION PRESENTED

Whether the evidence introduced at the

trial of the matter was obtained by an

illegal search and seizure without a

warrant in violation of the Fourth Amend-

ment to the Constitution of the United

States.

CONSTITUTIONAL PROVISION INVOLVED

United States Constitution, Amendment

IV:

"The right of the people

to be secure in their per-

sons, houses, papers, and

effects, against unreason-

able searches and seizures,

shall not be violated, and

no warrants shall issue,

but upon probable cause

supported by oath or af-

firmation, and particu-

larly describing the place

to be searched, and the

persons or things to be

seized."

STATEMENT OF THE CASE

Sometime in October, 1977, a police

informant indicated to an officer of

the Norfolk, Virginia Police Department

that he had a contact in Texas who could

supply him with marijuana and who had

brought marijuana into the Norfolk area

on prior occasions. On October 20, 1977,

the informant made a call from police

headquarters to an unidentified number

supposedly in Texas. Based on the in-

formant's version of the phone conversa-

tion, it was an invitation on the part

of the informant to the Defendant for

the Defendant to bring marijuana to Nor-

folk for sale.

On November 13, 1977, at approximately

6:30 p.m., the police officer was con-

tacted by the informant. The officer,

along with five other officers, met with

the informant at a designated place in

Norfolk. At that time the informant

stated that he had received a phone

call from the Petitioner to the effect

that he was staying in Room 117 at the

Airport Motor Inn in Norfolk, and that

he had 100 pounds of marijuana and

wanted to deal. Based on the represen-

tation that the informant did not know

where the marijuana was, the police de-

cided to send the informant to the

Motor Inn and observe.

The informant arrived at the Motel

room at approximately 8:05 p.m. The

police had positioned two officers in

an unmarked car approximately four to

five doors down from the motel room.

Two additional officers were across the

street. All officers were able to see

the motel room and the camper of the

Defendant. One additional officer was

stationed down the street to make con-

tact with the informant after he left

the motel room.

The informant remained in the motel

room for about 25 minutes. During that

time, there were two separate trips made

by unidentified males from the room to

the camper. One returned to the room

carrying a plastic bag.

The police testified that the plan was

for the informant to meet the police

with the marijuana that had been

"fronted" to him, allow some time to

pass, give the informant money to return

to the motel room and get some more mari-

juana and then secure a search warrant.

The police further testified that their

plans had to change when the camper un-

expectedly left the motel parking lot at

the same time as the informant.

The police followed the camper to a

restaurant where the occupants obtained

food from the drive-up window. The

camper then proceeded to drive away and

the police then decided to stop the

vehicle.

The camper was stopped after a short

distance at approximately 9:45 p.m. The

occupants were immediately arrested for

possession of marijuana with intent to

distribute. The occupants were searched

and placed in separate police cars.

The evidence was unclear as to whether

the camper was seized and then searched

or searched and then seized. In any

event, at least three officers thor-

oughly searched the interior of the

camper portion of the vehicle. The of-

ficer testified that they searched for

"approximately ten minutes” without

finding anything although the officer

“could smell from my past experience

what I believed to be marijuana".

Finally the officer dismantled a

dresser built in a frame underneath a

bed in the front of the camper compart-

ment. After dismantling the dresser,

the officer shook the dresser frame it-

self, found it loose, and then pulled

it out from the frame that held up the

bed. Then, looking into the cavity

created by dismantling the dresser and

its frame, the officer observed a ply-

wood wall. The seams of the wall were

covered with what the officer termed

"plumber's tape". Upon opening the

door there was a compartment next to the

back of the cab where a number of closed,

opaque plastic bags were found. Upon

opening the bags, the officers found the

substance believed by them to be mari-

juana. :

A motion to suppress the seized mari-

juana was made at trial and denied. A

subsequent appeal to the Supreme Court

of Virginia based in part on the denial

of the motion to suppress was denied.

REASONS FOR GRANTING THE PETITION

The Fourth Amendment to the Constitu-

tion of the United States reads as fol-

lows: "The right of the people to be

secure in their persons, houses, papers,

and effects, against unreasonable

searches and seizures, shall not be vio-

lated, and no warrants shall issue, but

upon probable cause supported by oath

or affirmation, and particularly de-

scribing the place to be searched, and

the persons or things to be seized",

U.S. Const., Amend. IV. The fundamen-

tal guarantee of this amendment has long

been interpreted by the courts to mean

that "searches conducted outside the

judicial process, without prior approval

by a judge or magistrate, are per se un-

reasonable under the Fourth Amendment -

subject only to a few specifically es-

tablished and well-delineated excep-

tions", Katz v. U.S., 389 U.S. 347, 357

(1967).

Under the facts of the instant case,

there can be no serious contention that

the search of the subject vehicle was

"incident to arrest", although one po-

lice officer justified it in that way.

If the Commonwealth seeks to justify the

search of the vehicle under this "ex-

ception" there can be no doubt that the

search and seizure were illegal. Chimel

v. California, 395 U.S. 752 (1969).

It would appear that the Common-

wealth's contention that the search

without a warrant in this case was legal

is based upon the coctrine first enun-

ciated in Carroll v. United States, 267

U.S. 132 (1924) and later elaborated in

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

Succinctly stated, that doctrine is that

a warrantless search of a motor vehicle

may be made based on probable cause to

believe the vehicle contains contraband

or fruits of a crime along with what is

termed “exigent” circumstances. As pro-

bable cause is the first hurdle to be

overcome, it will be discussed first.

The cases recognizing the probable

cause exception to the warrant require-

ment have always insisted that the of-

ficers conducting the search have "rea-

sonable or probable cause" to believe

that they will find the instrumentali-

ties of a crime or evidence pertaining

to a crime as a prerequisite to dis-

pensing with a warrant. Dyke v. Taylor

Implement Mfg. Co., 391 U.S. 216 (1968).

It is now well recognized that hearsay

may form the basis of probable cause.

In the case of a warrant, it is clear

that when an officer seeks to obtain a

warrant he must state sufficient under-

lying facts to create a substantial

basis for crediting the hearsay, McCray

v. Illinois, 386 U.S. 300 (1967), reh.

den. 386 U.S. 1042; Rugendorf v. U.S.,

376 U.S. 528 (1964), reh. den. 377 U.S.

940.

When dealing with information supplied

by an informant, in order to obtain a

warrant, the rule supplied by the Su-

preme Court of the United States has

been interpreted to require that the in-

formant have a reputation for reliabili-

ty and that the affidavit include some

factual information independently corro-

borative of the hearsay report. Manley

v. Commonwealth, 211 Va. 146 (1970).

See 68 Am.Jur.2d Searches & Seizures

§65 and cases cited therein. While the

foregoing statement is taken in the con-

text of securing a warrant, the Supreme

Court has clearly stated that the stan-

dards applicable to the factual basis

supporting an officer's probable cause

assessment at the time of a warrantless

arrest and search are at least as strin-

gent as the standards applied with re-

spect to a magistrates assessment as a

prelude to issuing an arrest or search

warrant. Whitley v. Warden, Wyoming

State Penitentiary, 401 U.S. 560 (1971).

In the case at bar, the Commonwealth

strictly relied upon the hearsay testi-

mony of one police officer in attempting

to establish probable cause for the ar-

rest, search and seizure.

The testimony was based almost entire-

ly on information related to him by an

informant.

As the Whitley case applies the same

standards of probable cause on warrants

and warrantless arrests and searches,

the Commonwealth in presenting its evi-

dence on probable cause had to show some

basis for the contention that the infor-

mation given by the informant was re-

liable. Not one shred of evidence was

offered to show the reliability of the

informant. There was no testimony as to

the informant's general reputation for

reliability. There was no testimony to

the effect that he had previously sup-

plied information to the police that had

led to arrests. The only testimony sub-

mitted was to the effect that the police

came in contact with the informant by

virtue of him bein” arrested for a

felony and that he had probably been

convicted of a felony before.

The Commonwealth conceded that the

information supplied by the informant

never in and of itself constituted pro-

bable cause. To surmount this obstacle

the Commonwealth contended that probable

cause came through “independent verifi-

cation" of events as seen through the

eyes of an "experienced police officer".

However, what where the facts that were

that were independently verified?

The officers verified that a motel

room was occupied. They verified that

there was a camper in front of the door.

They verified that two separate men,

neither being the informer, went into

the camper and that one carried some

sort of bag into the room. No amount of

"experience", even coupled with the in-

formation supplied by the informant,

can turn these events into probable

cause to believe that any crime is

being committed. Such acts as these

cannot be compared to the exchange of

money for a small envelope on the street

corner. The events perceived by the

officers are nothing more than common,

everyday events of life. Certainly,

these events would not be sufficient for

a neutral and detached magistrate to is-

sue a warrant. As Mr. Justice Jackson

wrote in Johnson v. United States, 333

U.S. 10, 13-14:

"The point of the Fourth

Amendment which often is

not grasped by zealous

officers, is not that it

denies the support of the

usual inferences which

reasonable men draw from

evidence. Its protection

consists in requiring that

those inferences be drawn

by a neutral and detached

magistrate instead of

being judged by the offi-

cer engaged in the often

competitive enterprise

of ferreting out crime."

The only thing that would appear to

approach giving the officers probable

cause is the allegations dealing with

the "bag" seen carried into the room by

an unidentified individual. One offi-

cer testified that another officer in-

formed him that an individual carried a

plastic bag into the room. He then

testified that he observed three indi-

viduals exit the room, get into the

camper and drive to the informant's

car where the informant got into his

Own car and drove off. There was no

mention of the bag being taken by the

informer. At this point in time the

bag had disappeared.

The officer who observed the above

then testified that he received a radio

message from a third officer that the

informant had given him a bag containing

approximately five pounds of suspected

marijuana.

The question must be asked. What bag?

No garbage bag containing marijuana al-

legedly received from the informant was

ever offered into evidence. The bag

disappeared. The cornerstone of the

Commonwealth's probable cause is based

purely on hearsay testimony, easily

capable of being verified, but it was

not.

Certainly no subsequent actions of

the Defendant gave to police probable

cause to even stop the vehicle. The

vehicle violated no traffic laws nor did

it do anything unusual to indicate its

involvement in any illegal activity.

Assuming, but not admitting, that the

information available at the time the

police stopped the vehicle was suffi-

cient to constitute probable cause, the

Commonwealth failed to carry the burden

of proving exigent circumstances. "The

word ‘automobile’ is not a talisman in

whose presence the Fourth Amendment

fades away and disappears". Coolidge v.

New Hampshire, 403 U.S. 443, 461-2

(1971). Absent exigent circumstances,

no amount of probable cause can justify

a warrantless search. Id p. 468.

The original basis for the so-called

"automobile exception” is found in the

rationale that exigent circumstances

exist because an automobile is movable,

the occupants are alerted and the ve-

hicle's contents may never be found

again if the police must first obtain a

warrant. Coolidge v. New Hampshire,

Supra; Chambers v. Maroney, supra. Ad-

ditionally, courts have relied on what

has been termed the "lesser expectation

of privacy associated with automobiles".

Eg, U.S. v. Trejo-Zambrano, 582 F.2d 460

(9th Cir. 1978); U.S. v. Polk, 433 F.2d

644 (5th Cir. 1970). The justification

for a warrantless search based on mo-

bility will be explored first and then

the expectation of privacy will be dis-

cussed.

If the word "automobile" is really not

a talisman in whose presence the Fourth

Amendment disappears, and if the need

for exigent circumstances is a practical

requirement with real meaning, it would

seem elementary that once all chance of

loss of the vehicle has passed, it is no

longer mobile and is secure as any resi-

dence as if it were permanently affixed

to the ground, the warrant requirement

of the Fourth Amendment must come into

play.

In the instant case, the subject ve-

hicle was stopped on a public highway;

the two sole occupants of the vehicle

were arrested; the keys were taken from

the occupants; the vehicle was apparent-

ly seized; there were at least five of-

ficers at the scene, uniformed and plain

clothes; both the occupants and the ve-

hicle were under the complete dominion

and control of the police so that there

was nothing to prevent the officers from

obtaining a warrant. In short, every-

thing possible was done to secure the

vehicle, save bolting it to the ground.

There was no reason to believe anyone

involved. The vehicle was as secure as

any permanent dwelling.

It should be noted that at least one

State Supreme Court has held that a war-

rantless search of a motor vehicle was

invalid because of the combination of

six police officers at the scene, immo-

bilization of the vehicle by removal of

the keys and occupants, and a present

ability to obtain a warrant. Shanks v.

Commonwealth, 574 S.W.2d, 688 (Ky.App.

1978).

In the case at bar, the Commonwealth

gave but one reason for failing to at-

tempt to obtain a warrant - inconve-

nience. The unequivocal testimony of

the Commonwealth's witness was that ab-

solutely nothing was present to prevent

the obtaining of a warrant except that

to do so would entail something like a

one and one-half hour delay. Surely

that testimony from the Commonwealth's

own witness totally and completely ne-

gates any contention that exigent cir-

cumstances existed. Here it was reason-

ably practical to obtain a warrant as re-

quired by Carroll and even if there

was probable cause, there were no exi-

gent circumstances as required by

Coolidge. Certainly, the Fourth Amend-

ment is too important to be disregarded

by an hour and one-half delay. That

same delay would apply in the case of a

residence. However, the Virginia Su-

preme Court would not accept such a

reason. See, Lugar v. Commonwealth 214

Va. 609 (1974).

In addition to the exigent circum-

stances rationale for the "automobile

exception" to the Fourth Amendment,

courts have often made reference to the

lesser expectation of privacy associated

with automobiles. Eg. U.S. v. Tresjo-

Zambrano, supra; United States v. Alden,

576 F.2d 772 (8th Cir. 1978); United

States v. Young, 567 F.2d 799 (8th Cir.

1977); U.S. v. Helberg, 565 F.2d 993

(8th Cir. 1977); U.S. v. Polk, 433 F.2d

644 (5th Cir. 1970). As one court

stated, there is a lesser expectation of

privacy because “automobiles rarely

serve as a repository of personal ef-

fects, have their contents partially ex-

posed to the public, and are subject to

extensive regulation and inspection."

U.S. v. Tresjo-Zambrano, supra.

Just as the Fourth Amendment prohibi-

tions had to evolve to meet the unique

problems initially presented by the ad-

vent of the automobile, the role of ‘the

Fourth Amendment's application must

again be re-evaluated in light of the

changing role and uses of motor vehicles.

No longer is a motor vehicle simply a

means of transportation from one point

to another. In today's society, motor

vehicles are often designed not only as

repositories vor eacuenal effects, but

as self-contained or semi-self-contained

living quarters. This is the type of

vehicle concerned in the instant case.

The vehicle concerned herein was a

camper. It was equipped with drawers

for the storing of clothing and even a

bed. Certainly there is as much, if not

more, Of an expectation of privacy in a

camper as there is in a suitcase in a

car, U.S. v. Stevie, 582 F.2d 1175

(8th Cir. 1978) or a footlocker, U.S. v.

Trejo-Zambrano, supra. In both the case

of the footlocker and the suitcase, the

courts held that a warrant was necessary.

While such statement is generally true,

it is not always so. Viewed with par-

ticular reference to the facts in this

case, there is ‘tittle difference in the

actions of the police in their search of

the camper and the search of the foot-

locker, a suitcase or even a home. To

say that the police could dismantle a

dresser built into a bed, and begin to

dismantle the camper without a warrant,

but say that a warrant would have to be

obtained to search a footlocker in the

middle of the camper floor would be

almost incredible.

Some delineation must be made with

reference to the modern day recreational

vehicle. Such vehicles are, in effect,

homes on wheels. Of course, to suggest

that a court must make rules for the po-

lice to follow along the lines of saying

that whether or not you need a warrant

depends upon the size and interior fur-

nishings of a vehicle is unworkable.

Further, it is unnecessary. Carroll

laid down the rule that should be fol-

lowed: "In cases where securing a war-

rant is reasonably practical it must be

used". Carroll, supra, at 156.

With particular reference to the dis-

tinction between an ordinary automobile

and a recreational vehicle, reference

must be made to the case of U.S. v.

Lavender, 602 F.2d, 639. It was held in

that case that a recreational vehicle

was a residence for the purpose of in-

voking §18.2-9} of the Code of Virginia,

1950, as amended (Statutory boretary.

Having once clothed a vehicle with the

status of a home for the purpose of

imposing criminal sanctions and then to

deny such status to the Fourth Amendment

to the United States Constitution is

totally illogical.

In addition to the foregoing, it must

be noted that the search in the instant

case far exceeded the scope of the nor-

mal vehicle search. Indeed, the ex-

panded nature of the search appears to

have been necessitated by the residen-

tial nature of the vehicle itself.

There must be some limit to the extent

of any search. Although there are no

clear guidelines as to the scope of the

search, certainly, the dismantling of a

vehicle exceeds that scope.

In the instant case the officers

searched for some time without finding

anything. The Commonwealth's own evi-

dence showed that the police had informa-

tion that there was no set pattern as to

where the suspect would keep the mari-

juana. Yet the officers continued to

search. It was only after the officers

dismantled the dresser, a place where

100 pounds of marijuana could not be

kept, removed the actual frame from un-

der the bed, removed seam tape from the

structure of the camper and opened up

the frame of the camper body was any-

thing found. The search was an explora-

tory one. There must be some limit to

the scope of a search. To allow the

police to take apart a vehicle without

even the benefit of a warrant, is un-

reasonable, and the fruits of that search

must be suppressed.

CONCLUSION

The judgment of conviction was erro-

neous. The trial court erred in over-

ruling Defendant's motion to suppress

the evidence as it was obtained by vir-

tue of an illegal search in violation of

the Fourth Amendment to the Constitution

of the United States. The trial court

erred in overruling Defendant's motion

to suppress the evidence as it was ob-

tained by virtue of an illegal seizure

in violation of the Fourth Amendment to

the Constitution of the United States.

The conviction below should be re-

versed and the charge against the Peti-

tioner dismissed.

Respectfully submitted,

Thomas W. Moss, Jr.

Moss, Moss & Sizemore

1505 First Virginia Bank

Tower

Norfolk, Virginia 23510

March 3, 1980

CERTIFICATE OF SERVICE

I hereby certify that on this 3°”

day of March , 1980, four copies of

the Petition for Writ of Certiorari

were mailed, postage prepaid, to J.

Marshall Coleman, Attorney General for

the Commonwealth of Virginia, Supreme

Court Building, 1101 E. Broad Street,

Richmond, Virginia, 23219. I further

certify that all parties required to be

served have been served.

Thomas W. Moss, Jr.

1505 First Virginia Bank

Tower

Norfolk, Virginia 23510

Counsel for Petitioner

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.