Petition — Raisen v. Raisen

IN THE

Supreme Court of the Uni a ERR

OCTOBER TERM, 1979

w.99-1838

RUTH RAISEN,

Petitioner,

VERSUS

PHILIP RAISEN AND INSURANCE COMPANY

OF NORTH AMERICA,

Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

LAWRENCE B. FRIEDMAN, ESQ.

1875 Northeast 163 Street

North Miami Beach, Florida 33162

Counsel for Petitioner

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Jurisdiction.......

Questions presented

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Reasons for granting the writ

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1. The Florida Supreme Court erred in

upholding the doctrine of interspousal

immunity which classifies people by

their marital status in that said classifica-

tion is arbitrary and does not serve

important state objectives or achieve

those objectives as required by the Equal

Protection Clause of the United States

Constitution.

2.The Florida Supreme Court erred in

upholding the doctrine of interspousal

immunity which denied married couples

access to the Court contrary to the Fifth

and Fourteenth Amendments to the

United States Constitution.

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CITATIONS

Boddie v. Connecticut,

RE 13

Coffindaffer v. Coffindaffer,

i Ce COD oo. cc we ccs cancereccoucavn 9

Eisenstadt v. Baird,

ys EG 7,8,9, 10, 11, 13

Freehe v. Freehe,

81 Wash. 2d 183, 500 P.2d 777 (Wash 1972) ............. 10

Glona v. American Guarantee Co.,

EES OSE Sree 8,9

Hampton v. Mow Sun Wong,

Ne Ls Gna neue sees okee enue 14

Mullane v. Central Hanover Tr. Co.,

ey ae we wk ee Ns epee 13

Nashville, C & St. L. Ry v. Browning,

i Ls bias ete eeeadene cae 8

Orefice v. Albert,

De s,s iy 6 b.b- we ne OO COS 9

Pennsylvania R.R. Co. v. Hughes, :

nr 7,8

Railway Express Agency v. New York,

es ok bh nee el oboe a oa ae 7

Reed v. Reed,

ee ee de cae senws ae ene we 12

CITATIONS (Continued)

Royster Guano Co. v. Virginia,

BR EE EE fo cs ids Nhs 40% chon sa Re es 7

Stanton v. Stanton,

ee PT a os ve haw ns Sw Peed 0 eee eee 11

Taylor v. Louisiana,

en See ETD. 6 ok i Nb VR Oe oo eRe teenies 11

Thompson v. Thompson,

Be Se ee CR cree Meds peace eed was maeeee 12

Trammel v. United States,

Se i, CED on vd bow vec cdxapetes 10,11, 14, 15

Yick Wo v. Hopkins,

Fe Wr UD cosa hd aN aba hs eee) vee eS 13

CONSTITUTIONAL PROVISIONS

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Sree Gee. MOE TROY og ikke cd acad cerns 2, Oi F, Oe Be tO

STATUTES

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Pa a ES i ko oe sei eee Reco ear kee eae 4

OTHER AUTHORITY

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-iii-

IN THE SUPREME COURT OF THE

UNITED STATES

No.

RUTH RAISEN,

Petitioner

VERSUS

PHILIP RAISEN and INSURANCE COMPANY

of NORTH AMERICA,

Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

The petitioner, Ruth Raisen, respectfully prays that a writ

of certiorari issue to review the judgment, opinion and order on

rehearing of the Supreme Court of Florida entered in this

proceeding on December 20, 1979 and February 21, 1980.

OPINION BELOW

The opinion and order denying rehearing in the Supreme

Court reported at 379. So.2d 352 together with the decision

of the Fourth District Court of Appeals reported at 370 So.2d

1148 appear in the appendix to this brief.

JURISDICTION

The judgment of the Supreme Court of Florida was entered

on December 1979. A timely petition for rehearing was de-

nied without opinion in February 21, 1980. This petition for

certiorari was filed within ninety days of that date. This Court’s

jurisdiction is invoked under 28 U.S.C. 1257 (3).

QUESTIONS PRESENTED

1. The Florida Supreme Court erred in upholding the doc-

trine of interspousal immunity which classifies people by their

marital status in that said classification is arbitrary and does

not serve important state objectives as required by the Equal

Protection Clause of the United States Constitution.

2. The Florida Supreme Court erred in upholding the doc-

trine of interspousal immunity which denies married couples

access to the Court contrary to the Fifth and Fourteenth

Amendments to the United States Constitution.

STATUTORY AND CONSTITUTIONAL

PROVISIONS INVOLVED

AMENDMENT (V.)

Capital crimes; double jeopardy; self-incrimination; due

process; just compensation for property

No person shall be held to answer for a capital, or other-

wise infamous crime, unless on a presentment or indictment

of a Grand Jury, except in cases arising in the land or naval

forces, or in the Militia, when in actual service in time of War or

public danger; nor shall any person be subject for the same

offense to be twice put in jeopardy of life or limb; nor shall

be compelled in any criminal case to be a witness against him-

self, nor be deprived of life, liberty, or property, without due

process of law; nor shall private property be taken for public

use, without just compensation.

AMENDMENT XIV.

§ 1. Citizenship rights not be abridged by states

Section 1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No State

shall make or enforce any law which shall abridge the privileges

or immunities of citizens of the United States; nor shall any

State deprive any person of life, liberty, or property, without

due process of law; nor deny to any person within its juris-

diction the equal protection of the laws.

708.08 Married women’s rights; separate property; release of

dower

(1) Every married woman is empowered to take charge of

and manage and control her separate property, to contract

4.

*

and to be contracted with, to sue and to be sued, to sell, con-

vey, transfer, mortgage, use, and pledge ger real and personal

property and to make, execite, and deliver instruments of

every character without the joinder or consent of her husband

in all respects as fully as if she were unmarried. Every married

woman has and may exercise all rights and powers with respect

to her separate property, income and earnings and may enter

into, obligate herself to perform, and enforce contracts or un-

dertakings to the same extent and in like manner as if she were

unmarried and without the joinder or consent of her husband.

Any claim or judgment against a married woman shall not be

a claim or lien against her inchoate right of dower in her hus-

band’s separate property. All conveyances, contracts, transfers,

or mortgages of real property or any interest in it, executed by

a married woman without the joinder of her husband after the

effective date of the 1968 Constitution of Florida, are as valid

and effective as though the husband has joined.

(2) Any married woman having a right of dower in real

property may relinquish it by joining in a conveyance or mort-

gage of the property or by a separate instrument without

the joinder of her husband, executed in the same manner

as conveyances.

708.09 Same; agreements with husband, power of attorney,

etc.

Every married woman may enter into agreements and con-

tracts with her husband, may become the partner of her hus-

band or others, may give a power of attorney to her husband,

and may execute powers conferred upon by her husband, in-

cluding the power to execute and acknowledge all instruments,

including relinquishments of dower, conveying, transferring,

or encumbering property, or any interest in it, owned by her,

or by herself and her husband as tenants by the entirety, or

by her husband. All powers of attorney heretofore executed

by a wife to her husband and vice-versa, and the execution

of all documents executed thereunder, are hereby validated

and confirmed.

Uj

-4-

STATEMENT OF THE CASE & FACT

On September 4, 1976, the Petitioner, Ruth Raisen, was

injured when her husband negligently operated the automobile

that she and two mutual friends were traveling in. (R.1-3)

At the time of the accident and the filing of the lawsuit, the

Petitioner and the Respondent had been living together as

husband and wife for 37 years. The Petitioner alleged in her

complaint, that the filing of this suit would not destroy matri-

monial harmony maintained between herself and her husband,

and that she did not conspire to promote a fraudulent claim

with her husband, but that this action was one for substantial

injuries wherein the insurance company was the real party in

interest. (R.3)

In addition, the Petitioner alleged in her Complaint that

any prohibition against her being able to maintain this suit

against her husband, the Respondent, Philip Paisen, would

violate her rights under the Constitution of the United States

of America, which guarantees to all citizens equal protection

and due process of the law.(R.3)

The Respondents, Philip Raisen and Insurance Company of

North America, filed a Motion to Dismiss and moved the Trial

Court to dismiss the complaint on the grounds that it failed

to state a cause of action since Florida does not permit tort

actions by a wife against her husband, and that the Court lacked

jurisdiction over the subject matter on the basis of interspousal

immunity.

A hearing was held on April 18, 1977, before the Honorable

John G. Ferris, of the Circuit Court of the 17th Judicial Circuit

in and for Broward County, Florida, and subsequent thereto

on April 21, 1977, the Final Judgment of Dismissal with

prejudice was entered against the Petitioner on the ground

that the cause of action was barred by the doctrine of inter-

spousal immunity.

“R” refers to the record on appeal for the Supreme Court of

Florida.

5.

On May 18, 1977, the Petitioner filed her Notice of Appeal

with the Fourth District Court of Appeal. In her brief she

reasserted her rights under the Fifth and Fourteenth Amend-

ments to the United States Constitution. She argued that

classifying persons on the basis of their marital status, thereby

denying them access to the Court and thus a legal remedy for

personal injury, violated the Due Process Clause of the Fifth

and the Fourteenth Amendments.

On July 19, 1978, the District Court of Appeal affirmed

the judgment of the Trial Court and dismissed the Petitioner’s

Complaint: However, the District Court determined that the

issue of interspousal immunity was of great public interest,

and thereupon certified the following question to the Supreme

Court of the State of Florida.

Does the Doctrine of Interspousal Immunity preclude

a tort action between husband and wife in all cases

or will such an action lie if it is alleged and proven that

none of the traditional reasons supporting Interspousal

Immunity are applicable.

The Petitioner timely filed her notice of appeal and in

support thereof reasserted her rights under the Fifth and

Fourteenth Amendments of the United States Constitution in

her accompanying brief to the Supreme Court of Florida. On

December 20, 1979, the Court, notwithstanding the constitu-

tional rights of the Petitioner, affirmed the decision below

stating that the threat of fraudulent suits and the disruption

of matrimonial harmony supported the common law doctrine

of interspousal immunity.

Thereafter a timely motion for rehearing was filed, and on

February 21, 1980, it was denied without opinion by the

Florida Supreme Court. Accordingly, the Petitioner seeks

a writ of certiorari to this Court seeking to abrogate the doc-

trine of interspousal immunity, as said doctrine clearly vio-

lates the Fifth and Fourteenth Amendments of the United

States Constitution.

REASONS FOR GRANTING THE WRIT

The Doctrine of Interspousal Immunity has long outlined its

usefullness, and the modern trend of authority has been to

abrogate same. In fact, over thirty jurisdictions have recognized

the need to change in order to permit one spouse to maintain

an action against the other.

The Florida Supreme Court in upholding interspousal im-

munity implicitly considered and rejected the constitutional

ramifications inherent in the doctrine. In so doing, the Court

below denied the Petitioner, Ruth Raisen, her rights of Equal

Protection and Due Process by arbitrarily denying her access

to the Court to protect her person and property as guaranteed

by the Constitution. The petitioner now seeks a writ of certio-

rari, and advances two reasons for granting the writ.

1. The Florida Supreme Court erred in upholding

the Doctrine of Interspousal Immunity which

classifies people by their marital status in that

said classification is arbitrary and does not serve

important state objectives or achieve those objec-

tives as required by the Equal Protection Clause

of the United States Constitution.

State classifications that distinguish between married and

unmarried individuals are subject to scrutiny under the Equal

Protection Clause Eisenstadt v. Baird, 405 U.S. 438 (1972).

Whether the classification is by administrative regulation,

Railway Express Agency v. New York, 336 U.S. 106 (1949),

statute, Royster Guano Co. v. Virginia, 253 U.S. 412, 415

(1919), or by judicial decisions following the common law,

Pennsylvania R.R. Co. v. Hughes, 191 U.S. 477. 89 (1903),

it must not be inconsistent with the fundamentals underlying

the Equal Protection Clause of the United States Constitution.

U.S. CONST. amend. XIV.

— “Soy

While it is well settled that a state may administer the com-

mon law to promote the welfare of its citizens, in so doing it

cannot interfere with rights secured by the Constitution of the

United States. Pennsylvania P.R. Co., 191 U.S. at 89. It is

unnecessary for a law to be found in a statute book to violate

the 14th Amendinent for the Equal Protection Clause did not

write an “empty formalism” into the Constitution. Nashville,

C &St. L. Ry v. Browning, 310 U.S. 362, 69 (1940).

To withstand constitutional challenge classifications by

marital status must serve important state objectives and must

be substantially related to the achievements of those objectives.

Eisenstadt v. Baird, 405 U.S. at 447.

In retaining the doctrine of interspousal immunity, the State

of Florida’s two objectives are to protect its Courts from

fraudulent suits and to preserve matrimonial harmony by pro-

hibiting adversary tort lawsuits between a husband and his

wife. A carefiil examination reveals that it fails to accomplish

both of these goals and is therefore unconstitutional.

A. FRAUDULENT SUITS

Opening the Courts to this type of suit may conceivably

tempt some spouses to file fraudulent claims. However, this

Court has rejected the possibility of fraudulent law suits as a

sufficient state objective to support a statutory classification.

Glona v. American Guarantee Co., 391 U.S. 73,76 (1968).

In Glona, Louisiana law prevented a mother of an illegitimate

child from bringing an action for wrongful death. While a

woman might be tempted to assert motherhood fraudulently,

this Court categorized the problem as one of proof and in-

sufficient ‘to justify a statutory classification. Glona, 391

USS. at 76.

Assuming arguendo that the possibility of fraudulent law-

suits is a valid state purpose, the doctrine of interspousal im-

munity is not substantially related to the achievement of that

objective. Just as the possibility of a woman feigning mother-

hood in Glona is unlikely, so is the possibility of self-inflicted

injuries. It is hard to imagine a spouse purposefully falling down

stairs or allowing his or her counterpart to stike them with the

family car in order to achieve the substantial injury necessary

to make jury litigation worthwhile. See Coffindaffer v. Cof-

findaffer, 244 S.E. 2d 338, 43 (W. Va. 1978). Florida permits

lawsuits between cousins, brothers and sisters and adult children

and parents. In fact, other than interspousal suits, Florida only

prohibits suits between minor children and their parents based

upon the fictional unity between a parent and their unemanci-

pated child. Orefice v. Albert, 237 So. 2d 142 (1970).

The possibility of fraud is just as great in these suits as in

interspousal litigation since both involve close family members.

Prosser, Torts §122 (4th ed. 1971). In allowing other intrafamily

suits, where the possibility of fraud is as great, Florida has clear-

ly abandoned the purpose of interspousal immunity insofar

as fraudulent suits are concerned. Eisenstadt, 405 U.S. at 449.

The application of interspousal immunity in light of Florida’s

acquiesence in other intrafamily litigation is clearly an arbi-

trary denial of a spouse’s fundamental right of equal protection,

in that it fails to treat people similarly situated uniformly.

This argument has equal validity in the preservation of mari-

tal or intrafamily harmony which is addressed later in Peti-

tioner’s brief. Certainly it would be fallacious to assume that a

suit between close family members other than a husband and

wife would be any less disruptive to domestic life.

Furthermore, counsel for the insurance company through

discovery as well as the intelligence of jurors in assessing the

credibility of the evidence should significantly decrease any

possibility of fraudulent suits. In reviewing the experience of

over one dozen states who at that time abrogated the doctrine

-9-

of interspousal immunity, the Washington Supreme Court

noted that there was no indication that court dockets have

become cluttered with trivial or fraudulent law suits. See

Freehe v. Freehe, 81 Wash. 2d 183, 500 P. 2d 777 (Wash

1972). !

The experience of the jurisdictions which have abrogated the

doctrine clearly indicate that allowing interspousal tort liti-

gation does not increase the number of fraudulent suits. As

such, the common law doctrine does not bear a substantial

relationship to the goal it was designed to protect. Therefore

it fails to meet the test this Court originally outlined for marital

classifications in Eisenstadt, and is nsatheipht to withstand

a challenge under the Equal Protection Claus¢.

B. PRESERVATION OF MATRIMONIAL HARMONY

The primary justification for interspousal immunity is the

preservation of matrimonial harmony. This Court in abrogating

the common law privilege against adverse spousal testimony

in criminal cases noted that the ancient foundations for allow-

ing the accused to assert the privilege have long disappeared.

Trammel v. United States, 100 S. Ct. 906 (1980).

Like interspousal immunity, the ancient foundation for the

privilege in criminal cases rests upon the preservation of matri-

monial harmony, 8 Wigmore, §2228, and like the situation

found in Trammel, the privilege is more likely to frustrate

justice than to foster family peace. Trammel, 1U0 S.Ct. at 913.

This reason for interspousal immunity has been severely

criticized by legal scholars (like the privilege in Trammel) and

its justification is unpersuasive. Certainly with respect to in-

tentional torts, for exampie assault or battery, it is illogical to

assume that by barring a civil suit you will preserve domestic

tranquility, since the tranquility sought toa be protected is

-10-

already shattered. 4/

Furthermore it make little sense that a spouse who is so

angered that he or she will sue his counterpart, will be soothed

and deterred by the denial of her legal remedy. Prosser, Torts

§ 122 (4th ed. 1971).

In today’s society as opposed to fifty years ago, a woman

has a separate legal identity and is no longer destined for the

home and the rearing of the family. Stanton v. Stanton, 421

US. 7 14, 15 (1975); Taylor v. Louisiana 419 U.S. 522, 535

n.17 (1975). The abolition of the fictional unity between hus-

band and wife allows the wife to sue her husband in non-tort

litigation. Certainly there is nothing in the nature of tort actions

that make them more disturbing to domestic tranquility than

property or criminal proceeding. 47 Tenn. L. Rev. 123, 130

(1979). By allowing other types of litigation between husband

and wife, the State of Florida has clearly abandoned the pur-

pose of interspousal immunity insofar as preservation of matri-

monial harmony is concerned. Eisenstadt, 405 U.S. at 448.

Besides divorce, the other types of litigation allowed by the

State of Florida, so riddle interspousal immunity with excep-

tions, that it cannot reasonably be regarded as protecting

1/In Trammel the Court wrote:

When one spouse is willing to testify against the other in a criminal

proceeding whatever the motivation . . . Their relationship is most

certainly in disrepair; there is probably little in the way of marital

harmony for the privilege to preserve.

This is obviously true in an interspousal suit for assault with the only

difference being one of characterization, that is tort versus a criminal

action. Both suits will be equally disruptive, yet only one is allowed.

1 1-

matrimonial harmony. Id at 449. 2/

When weighing the Equal Protection Clause against the possi-

bility of avoiding intrafzmily controversy, this Court has held

the latter insufficient to support a gender classification. Reed v.

Reed, 404 U.S. 71, 77 (1971). In Reed, the mother of her

deceased son filed a petition in Probate Court seeking her

appointment as administratrix of her son. The father files

a competing petition and under the statutory preference af-

forded to ihe father’s decedents, he was appointed the ad-

ministrator of her son’s estate. One justification for the auto-

matic preference was the avoidance of intrafamily contro-

versy, but despite its positive value, the automatic preference

was the avoidance of intrafamily controversy, but despite its

positive value, the automatic preference was held to be arbi-

trary and contrary to the Equal Protection Clause of the Four-

teenth Amendment. Reed, 404 U.S. at 76.

The difference in the Reed decision and the instant case are

minimal. -3/ Here, interspousal tort suits are banned to preserve

intrafamily or matrimonial harmony. While in Reed, women are

excluded from administering estates for the identical reason.

Just as intrafamily or marital harmony is insufficient to support

a gender classification, it must also fail to support a marital clas-

sification.

.2/ Florida abolished the fictional unity in the Married Women’s Proper-

ty Act of 1943 which gave her the same rights as if she was unmarried to

sue in a Court of law. The Petitioner’s argument is not that Married

Womens Act itself abrogates interspousal immunity contrary to Thomp-

son v. Thompson, 218 U.S. 611 (1910), but that the availability of other

types of lawsuits are contrary to Florida’s express purpose for interspousal

immunity.

3/ ~= In Reed, the State of Oregon sought to preserve marital harmony

by automatically allowing husbands to administer the estate of his

children. In so doing the State prevented lawsuits between a husband and

his wife in an effort to foster domestic tranquility. There is no reason to

suspect that a suit after the loss of a child would be less disruptive than a

tort suit between husband and wife.

=}.

a

To survive a constitutional challenge under the Fourteenth

Amendment, interspousal immunity must bear a substantial

relationship to the preservation of marital harmony. This Court

made rule does not further its object by barring an action in

tort, but yet allowing a spouse to sue one another under the

same factual scenario in a non-tort action, or by denying an

angered spouse a legal remedy when he or she is the victim of

an intentional or negligent act. As such, the second justifi-

cation for this antiquated doctrine also fails to meet the stan-

dard established by Eisenstadt.

2. The Florida Supreme Court erred in upholding

the doctrine of interspousa) immunity which

denied married couples access to the Court con-

trary to the Fifth and Fourteenth Amendments

to the United States Constitution.

The Courts serve as the forum for dispute settlement in our

society. It is upon this concept that the Fifth and later the

Fourteenth Amendments were drafted as the cornerstone of

due process in the operation of the legal system. Boddie uv.

Connecticut, 401 U.S. 371, 375 (1970).

Due Process requires at a minimum, absent a countervailing

state interest of overriding significance, that all persons should

be equally entitled to have access to the Courts for the protec-

tion of their person and property. Mullane v. Central Hanover

Tr. Co., 339 U.S. 306, 313 (1950).

When a state denied a group of individuals similarly situated

access to the Court, and yet allows others access, not only is

the Due Process Clause of the Fifth Amendment violated, but

so is the Equal Protection Clause of the Fourteenth amend-

ment. U.S. CONST. amend V; U.S. CONST. amend XIV;

Yick Wo v. Hopkins, 118 U.S. 356 369 (1885). Although both

amendments utilize the identical analytical framework, the

Equal Protection Clause places an additional guaranty beyond

«$5.

the requirement of Due Process in preventing discrimination,

oppression or inequality of all persons similarly situated who

seek access to the Court. Hampton v. Mow Sun Wong, 426

U.S. 88, 100 (1975).

Therefore, for interspousal immunity to survive a challenge

under the Due Process Clause, a counterveiling state interest of

overriding significance must exist; Id. at 100; and to survive

a challenge under the Equal Protection Clause, interspousal

immunity must not place an additional burden on persons

similarly situated who seek access to the Court. Id. at 100.

Here, the State of Florida asserts the possibility of fraudulent

suits and the preservation of matrimonial harmony as sufficient

to deny the Petitioner her rights of access to the Court under

the Due Process Clause. As indicated in the Petitioner’s initial

reason for granting certiorari, the doctrine of interspousal

immunity does not bear a substantial relationship to either

of the aforementioned goals. In addition no other interest has

been advanced by the State to justify such a serious denial

of one of our most fundamental rights, access to the courts.

Therefore, the State of Florida has not stated a counterveiling

interest which is sufficient to withstand a constitutional chal-

lenge under the Due Process or the Equal Protection Clause

of the Constitution.

Experience has shown that the abrogation of interspousal

immunity does not open the Court to trivial or fraudulent

suits. Furthermore, the State’s goals in preserving matrimonial

harmony cannot be served by denying address in tort actions,

but yet allowing a spouse to sue his or her counterpart under the

same factual scenario in criminal, contract, or other proceed-

ings.

This Court recognized in Trammel that when the original

rationale for a Court-fashioned rule have long disappeared that

it is time for the rule’s creator to destroy it. Trammel, 100 S.

-14-

Ct. at 911. As with the common law privilege in Trammel,

the common law doctrine of interspousal immunity has outlived

its usefullness. Therefore it whould be abrogated so that a

spouse is allowed access to a court of law to seek redress for

injuries inflicted upon her by her husband. To decide other-

wise slams the courthouse door shut to all individuals who

for the sole reason that they are married cannot be compen-

sated for injuries sustained intentionally or by the negligent

act of either spouse.

15.

CONCLUSION

For these reasons, a writ of certiorari should issue to review

the judgment, opinion and order on rehearing of the Florida

Supreme Court.

Respectfully submitted,

Pe ae

LAWRENCE B. FRIEDMAN

1875 N.E. 163rd Street

North Miami Beach, Florida 33162

Counsel for Petitioner

May 17, 1980

-16-

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 2lst__ day of May, 1980,

three (3) copies of the Petition for a Writ of Certiorari were

mailed, postage prepaid, to JOE KASHI, P. O. Box 14723,

Fort Lauderdale, Florida 33302, Counsel for the Respondents.

I FURTHER CERTIFY that all parties required to be served

have been served.

Ay ey wae ee

LAWRENCE B. FRIEDMAN, ESQ.

1875 N.E. 163rd Street

North Miami Beach, Florida 33162

Counsel for the Petitioner

Fs.

| -

APPENDIX

A-]

IN THE SUPREME COURT OF FLORIDA

THURSDAY, FEBRUARY 21, 1980

RUTH RAISEN,

Petitioner,

vs.

PHILIP RAISEN, ET AL., CASE NO. 54,838

Respondents. DCA Case No. 77-1058

On consideration of the motion for rehearing filed by at-

torneys for petitioner,

IT IS ORDERED by the Court that said motion be and the

same is hereby denied.

ENGLAND, C.J., BOYD, OVERTON, ALDERMAN and MC

DONALD, JJ., Concur ADKINS and SUNDBERG, JJ., Dissent

On consideration of the motion to dismiss motion for rehear-

ing filed by attorneys for respondents,

IT IS ORDERED by the Court that said motion be and the

same is hereby denied.

ENGLAND, C.J., ADKINS, BOYD, OVERTON, SUNDBERG

and McDONALD, JJ., Concur ALDERMAN, J., Disserits

C

Hon. Clyde L. Heath, Clerk

A True Copy ec:

Hon. Robert E. Lockwood, Clerk

TEST: Hon. John G. Ferris, Judge

Sid J. White (Signed) Lawrence B. Friedman, Esquire

Sid J. White of Friedman & Robbins

Clerk Supreme Court Joseph S. Kashi, Esquire

of Grimmett, Conrad, Scherer

& James

Larry Klein, Esquire

A-2

370 SOUTHERN REPORTER, 2d SERIES

1148 Fla.

RUTH RAISEN, Appellant,

v.

Philip RAISEN and Insurance Company

of North America, Appellees.

No. 77-1058

District Court of Appeal of Florida,

Fourth District.

July 19, 1978.

Wife sued husband and his insurer for damages arising out

of husband’s operation of automobile. The Circuit Court,

Broward County, John G. Ferris, J., sustained motion to dis-

miss complaint on ground of interspousal immunity, and wife

appealed. The District Court of Appeal, Downey, C.J., held

that action was barred by doctrine of interspousal immunity.

Judgment affirmed and question certified.

Dauksch, J., concurred specially with opinion.

Husband and Wife Key 205(2)

Action brought by wife against husband and his insurer

for damages arising out of husband’s operation of automobile

in an allegedly negligent fashion was barred by doctrine of

interspousal immunity, despite allegations of complaint that

traditional reasons giving rise to concept of interspousal im-

munity did not exist under facts of the case.

Lawrence B. Friedman of Friedman & Robbins, North

Miami Beach, for appellant.

Joseph S. Kashi of Druck, Grimmett, Scherer & James,

A-3

Fort Lauderdale, Florida, for appellees.

DOWNEY , Chief Judge.

The individual parties to this appeal are husband and wife

and the issue involved is the application vel non of the inter-

spousal immunity doctrine.

The appellant wife sued appellee husband for damages arising

out of his operation of an automobile in such a negligent

fashion as to injure the wife. The trial court sustained a motion

to dismiss the complaint on the grounds of interspousal im-

munity and a final judgment was entered for appellees.

Appellant contends the trial court erred in dismissing this

cause because 1) the allegations of the complaint demonstrate

that the interspousal immunity doctrine is not applicable to

this case, and 2) application of the interspousal immunity

doctrine in such a way as to prohibit appellant from main-

taining this suit violates her constitutional rights of due process

and equal protection.

The complaint alleged, among other things, that the parties

have lived together as husband and wife for thirty-seven years

and will continue to do so; the maintenance of this suit will

not disrupt the peace and harmony of their home and marriage;

the parties have not conspired to promote a fraudulent or

collusive claim; the suit is not trivial but a result of severe

injuries inflicted upon plaintiff; and the defendant insurance

company is the real party in interest.

Appellant contends that on motion to dismiss the well

pleaded allegations of her complaint must be taken as true.

Thus, appellant argues that the traditional reasons giving rise

to the concept of interspousal immunity are not existent in

this case and that the complaint states a cause of action en-

titling appellant to relief. Appellant concludes by citing Prosser

and numerous other authorities / which suggest the doctrine

is an anachronism which has long outlived its time.

Be that as it may, we are constrained to follow respectable

precedent which indicates the doctrine of interspousal immuni-

ty is still viable in Florida. 2/ Any such change in the law

as appellant urges is more properly the function of the Legis-

lature or the Supreme Court. However, inasmuch as the ques-

tion is a constantly recurring one and is one of great public

interest, we certify the following question to the Supreme

Court of Florida as one of great public interest:

Does the doctrine of interspousal immunity preclude

a tort action between husband and wife in all cases

or will such an action lie if it is alleged and proven that

none of the traditional reasons supporting interspousal

immunity are applicable?

The judgment for which this appeal is perfected is affirmed.

AFFIRMED, question certified.

MOORE, J., concurs.

DAUKSCH, J., concurs specially with opinion.

DAUKSCH, Judge, concurring specially:

I concur with the court’s opinion as anounced by Judge

1/ ‘Prosser, Law of Torts, § 122 (4th Ed. 1971): Bonner v. Williams,

370 F.2d 301 (5th Cir. 1966); Klein v. Klein, 58 Cal. 2d 692, 26 Cal.

Rpt. 102, 376 P. 2d 70 (1962).

2/ ~~ Bencomo v. Benco.no, 200 So.2d 171 (Fla 1967); Horton v. Unigard

Ins. Co., 355 So.2d 154 (Fla. 4th DCA 1978); Blanton v. Blanton, 354

So. 2d 430 (Fla. 4th DCA 1978).

Downey and add my thought that it may be time our Supreme

Court reconsider the entire interfamilial immunity doctrine

in light of social development and change over ‘ie years since

it was last considered.

WEST KEY NUMBER SYSTEM

A-6

379 SOUTHERN REPORTER, 2d SERIES

352 Fla. Fla. 353

RUTH RAISEN, Petitioner,

v.

Philip RAISEN and Insurance Company

of North America, Respondents.

No. 54838.

Supreme Court of Florida.

Dec. 20, 1979.

Rehearing Denied Feb. 21, 1980.

Wife sued husband and his insurer for damages arising out of

husband’s operation of automobile. The Circuit Court, Broward

County, John G. Ferris, J., sustained motion to dismiss com-

plaint on ground of interspousal immunity, and the District

Court of Appeal affirmed, 370 So. 2d 1148. On writ of cer-

tiorari granted to wife; the Supreme Court, Alderman, J., held

that the action was barred by doctrine of interspousal im-

munity.

Decision of District Court of Appeal approved.

McDonald, J., concurred specially and filed opinion.

England, C. J., and Adkins and Sundberg, J.J., dissented and

filed opinion.

Husband and Wife Key 205 (2)

Action brought by wife against husband and his insurer

for damages arising out of husband’s operation of automobile

in an allegedly negligent fashion was barred by doctrine of

interspousal immunity, despite allegations of complaint that

traditional! reasons given rise to concept of interspousal immuni-

ty did not exist under facts of the case.

A-7

Lawrence B. Friedman of Friedman & Robbins, North

Miami Beach, for petitioner.

Joseph S. Kashi of Grimmett, Scherer & James, Fort Lauder-

dale, for respondents.

Larry Klein, West Palm Beach, for The Academy of Florida

Trial Lawyers, amicus curiae.

ALDERMAN, Justice.

This cause is before us on petition for writ of certiorari to

review the decision of the District Court of Appeal, Fourth

District, in Raisen v. Raisen, 370 So.2d 1148 (Fla. 4th DCA

1978). The district court has certified the following question

for our consideration:

Does the doctrine of interspousal immunity preclude

a tort action between husband and wife in all cases

or will such an action lie if it is alleged and proven

that none of the traditional reasons supporting inter-

spousal immunity are applicable?

Material to the disposition of this cause is the broader question

posed by the parties of whether this court should abrogate

the doctrine of interspousal immunity in Florida. We conclude

that valid policy reasons justifying the retention of the doctrine

still exist.

Mrs. Raisen sued her husband and his insurer for damages

arising out of his operation of an automobile in ar. allegedly

negligent manner so as to cause her injury. She alleged that this

suit would not disturb the domestic peace of her home and

marriage and that she and her husband have not conspired to

promote a fraudulent or collusive lawsuit. The trial court

dismissed the complaint on the basis of interspousal immunity

A-8

and entered judgment for Mr. Raisen and his insurer. The dis-

trict court affirmed.

Mrs. Raisen urges that we abrogate the common law doctrine

of interspousal immunity because the reasons for this rule have

ceased to exist. In response, Mr. Raisen and his insurance

carrier argue that the underlying justifications for this doctrine

retain their vitality. They contend that with widespread insur-

ance coverage, the probability of collusion and fraud is in-

creased and that, unquestionably, an adversary tort contest

between spouses will have an upsetting effect on domestic

tranquility.

Orginally a part of the common law of England, interspousal

tort immunity was adopted into the law of Florida in 1829 by

the enactment of what is now section 2.01, Florida Statutes

(1977). 1/Corren v. Corren, 47 So.2d 774 (Fla. 1950). As a

general rule, that part of the common law codified by section

2.01 should be changed through legislative enactment and not

by judicial decision. Only in very few instances and with great

hesitation has this Court modified or abrogated any part of the

common law enacted by section 2.01, and then only where

there was a compelling need for change and the reason for the

law no longer existed. E. g., Hoffman v. Jones, 280 So.2d

431. (Fla. 1973).

In Corren v. Corren, we considered the changes that had

occurred since 1829 and concluded that the legislature had not

1/ Section 2.01, Florida Statutes (1977), provides:

Common law and certain statutes declared in force. The common and

statute laws of England which are of a general and not a local nature, with

the exception hereinafter mentioned, down to the fourth day of July,

1776, are declared to be of force in this state; provided, the said statutes

and common law be not inconsistent with the constitution and laws of the

United States and the acts of the legislature of this state.

A-9

intended by any of its enactments to abrogate interspousal

tort immunity. At that time, we admonished the legislature

that it would be assuming a grave reaponsibility if it were, by

legislative enactment, to allow each spouse to treat the other

as a stranger so far as legal rights are concerned, and we advised

that if it should do so, the language proclaiming this revolu-

tionary change should be positive and unambiguous. 47 So.2d

at 776. Since our decision in Corren, the legislature has not

spoken in positive and unambiguous language to abrogate in-

terspousal tort immunity.

Convincing arguments for the continued validity of this

law are found in various decisions of this Court over the last

thirty years. In Corren, we rejected the argument that the

Married Women’s Property Act destroyed the unity of marriage

and explained:

{T]he so-called emancipation act did not so affect the

marriage relationship that the husband and wife were

thenceforward permitted to go their separate ways, but

instead were still mates residing in a common home,

each making in his own way a contribution to the mar-

riage venture.

As we have already commented, this fundamental

relationship does not scem directly affected by the

provisions of organic and statutory law with reference

to the woman’s dominion over her own property,

and we feel that we would have to resort to the illogic

to hold that there can be found in any of them the

implication even that she might sue her spouse for

injuries resulting from the negligent operation of his

automobile.

47 So.2d at 775. Additionally, referring to the marital discord

that could result from an embittering and distressing inter-

spousal tort action, we said:

A-10

When one ponders the effect upon the marriage

relationship were each spouse free to sue the other for

every real or fancied wrong springing even from pique

or inconsequential domestic squabbles, one can imagine

what the havoc would be to the tranquility of the home.

Certainly the success of the sacred institution of mar-

riage must depend in large degree upon harmony be-

tween the spouses, and the relationship could easily

be disrupted and the lives of offspring blighted if bick-

erings blossomed into law suits and conjugal disputes

into vexatious, if not expensive, litigation.

47 So.2d at 776.

Subsequently, in Rencomo v. Rencomo, 200 So.2d 171

(Fla. 1967), we acknowledge the continued validity and sound-

ness of the doctrine, reiterated the justification for its existence,

and reaffirmed that, in the absence of a constitutional or statu-

tory provision changing the common law, a wife could not

maintain an action against her husband for a personal tort.

In Gaston v. Pittman, 224 So.2d 326 (Fla. 1969), we recognized

the validity of the public policy arguments supporting the

doctrine: that interspousal tort actions disturb domestic tran-

quility; cause marital discord and divorce; cause fictitious,

collusive, and fraudulent claims; cause a rise in liability insur-

ance; and promote trivial actions. Again, in Orefice v. Albert,

237 So.2d 142 (Fla. 1970), we acknowledge as the established

policy of this state that suits will not be allowed among mem-

bers of a family unit for tort, and we said “‘[t] he purpose of

this policy is to protect family harmony and resources.” 237

So.2d at 145. Our recent decision in Shor v. Paoli, 353 So.

2d 825 (Fla. 1977), although holding that interspousal tort

immunity did not control over the Uniform Contribution

Among Joint Tortfeasor’s Act, did not affect the continued

vitality of the doctrine. The continuing validity of this doctrine

has also been recognized by a number of recent decisions of

the district courts of appeal. Vinci v. Gensler, 269 So.2d 20

A-11

Fla. 2d DCA 1972); ‘ims v. Mims, 305 So.2d 787 (Fla. 4th

DCA 1974); Heaton v. Yeaton, 304 So.2d 516 (Fla. 4th DCA

1975); Planton v. “lanton, 354 So.2d 430 (Fla. 4th NCA 1978);

Horton v. Unigard Insurance Co., 355 So.2d 154 (Fla. 4th DCA

1978), cert. dismissed, 373 So.2d 459 (Fla. 1979).

There is a reciprocal and often antagonistic relationship

between promotion of peace and harmony in the marital re-

lationship and avoidance of fraudulent or collusive claims.

A truly adversary tort lawsuit between husband and wife, by

its very nature, would have an upsetting and embittering effect

upon domestic tranquility. In such cases, there is little likeli-

hood of fraud and collusion, but there is a great probability

that the marriage relationship will be adversely affected. On the

other hand, if the lawsuit is not adversary and there is no real

conflict of interest between the spouses, the peace and harmony

of the marriage is not threatened, but there is a great probabili-

ty of fraudulent or collusive claims. This is particularly true

where the defendant spouse is insured and both spouses will

benefit if the plaintiff spouse wins the lawsuit and enforces the

claim against the insurance company. Under such circum-

stances, it is unrealistic to think that the defendant spouse will

do all within his or her power to defeat the claim of the plain-

tiff spouse. We expect too much of human nature if we believe

that a husband and wife who sleep in the same bed, eat at the

same table, and spend money from the same purse can be

truly adversary to each other in a lawsuit when any judgment

obtained by the plaintiff spouse will be paid by an insurance

company and will ultimately benefit both spouses.

Adversary tort lawsuits between spouses have an upsetting

and embittering effect upon domestic tranquility and the mari-

tal relationship. But non-adversary lawsuits that do not disturb

the peace and harmony of the marriage encourage fraudulent

and collusive claims, particularly where a third-party insurance

company must pay any judgment awarded. Florida’s solution

to this dilemma since 1829 has been interspousal tort immuni-

ty. This is still a viable solution. There have been many changes

A-12

in Florida since 1829, but the policy reasons justifying in-

terspousal tort immunity still exist.

Accordingly, we hold that the common law doctrine of

interspousal tort immunity is still viable in Florida and that it

precludes a tort action between husband and wife in all cases.

The decision of the district court affirming the trial court’s

dismissal of the complaint is therefore approved.

It is so ordered.

BOYTD, OVEP.TON and McDONALD, JJ., concur.

McDONALD, J., concurs specially with an opinion.

ENGLAND, C. J., and ADKINS and SUNDBERG, JJ.,

dissent with an opinion.

\*cDONAL?), Justice, specially concurring.

I concur in the conclusion that this Court should not abolish

the doctrine of interspousal immunity. I am not greatly con-

cerned with the specter of fraudulent and collusive claims

against insurance companies, since I feel that our judicial system

could ferret those out. I am much more concerned by any

intrusion which may adversely affect the marriage relationship.

Litigation between spouses would be such an intrusion.

It has been suggested that if the doctrine of interspousal

immunity is retained, the application thereof should be relaxed

to allow an action for tort when the tortious conduct is covered

by liability insurance. The real party in interest, it is urged,

is not the spouse but the insurance carrier. Reasonable men

may agree that this is a viable alternative - - but I agree that

should this distinction be made, it should be done by the

legislature rather than this Court.

ENGLAND, Chief Justice, and ADKINS and SUNDBERG.

A-13

Justices, dissenting.

We dissent.

At least twenty-eight jurisdictions have recognized the need

to make a change in permitting one spouse to maintain an

action against the other. Alabama, Bennett v. Bennett, 224

Ala. 335, 140 So. 378 (1932); Bonner v. Williams, 370 F.2d

301 (5th Cir. 1966); Alaska, Armstrong v. Armstrong, 441

P.2d 699 (Alaska 1968); Arkansas, Leach v. Leach 227 Ark.

599, 300 S.W.2d 15 (1957); California,Klein v. Klein, 58

Cal.2d 692, 26 Cal. Rpt. 102, 376 P.2d 70 (1962); Colorado,

Rains v. Rains, 97 Colo. 19, 46 P.2d 740 (1935); McSwain

v. United States, 291 F.Supp. 386 (E.D. Pa. 1968) (applying

Colorado law); Connecticut, Menczer v. Menczer, 160 Conn.

563, 280 A.2d 875 (1971); Idaho, Rogers v. Yellowstone

Park Co., 97 Idaho 14, 539 P.2d 566 (1974); Indiana, Brooks

v. Robinson, 259 Ind. 16, 284 N.E.2d 794 (1972); Kentucky,

Arnett v. Thompson, 433 S.W.2d 109 (Ky. 1968); Layne uv.

Layne, 433 S.W.2d 116 (Ky. 1968); Massachusetts, Lewis v.

Lewis, 370 Mass. 619, 351 N.E.2d 526 (1971); Michigan,

Hosko v. Hosko, 385 Mich. 39, 187 N.W.2d 236 (1971); Min-

nesota, Beaudette v. Frana, 285 Minn. 366, 173 N.W.2d 416

(1969); Nevada, Rupert v. Stienne, 90 Nev. 397, 528 P.2d

1013 (1974); New Hampshire, Thompson v. Thompson, 105

N.H. 86, 193 A.2d 439 (1963); Schneider v. Schneider, 110

N.H. 70, 260 A.2d 97 (1969); Taylor v. Bullock, 111 N.H.

214, 279 A.2d 585 (1971); New Jersey, Immer v. Risko,

56 N.J. 482, 267 A.2d 481 (1970); Merenoff v. Merenoff,

76 N.J. 535, 388 A.2d 951 (1978); New Mexico, Maestas

v. Overton, 87 N.M. 213, 531 P.2d 947 (1975) (intentional

tort); New York, Jacobs v. United States Fidelity & Guaranty

Co., 2 Misc. 2d 428, 152 N.Y.S.2d 128 (Sup. Ct. 1956); Keller

v. Greyhound Corp., 41 Misc. 2d 255, 244 N.Y.S.2d 882

(Sup. Ct. 1963); North Carolina, La Chance v. Service Trucking

Co., 215 F.Supp. 162 (D. Md. 1963) (applying North Carolina

Law); North Dakota, Fitzmaurice v. Fitzmaurice, 62 N.D. 191,

A-14

242 N.W. 526 (1932); Oklahoma, Courtney v. Courtney,

184 Okl. 395, 87 P.2d 660 (1938); Rhode Island, Digby v.

Digby, 388 A.2d 1 (R.I. 1978); South Carolina, Oshiek v.

Oshiek, 244 S.C. 249, 136 S.E.2d 303 (1964); Algie v. Algie,

261 S.C. 103, 198 S.E.2d 529 (1973); South Dakota, Scotvold

v. Scotvold, 68 S.D. 53, 298 N.W. 266 (1941); Virginia, Surratt

v. Thompson, 212 Va. 191, 183 S.E.2d 200 (1971); Vermont,

Richard v. Richard, 131 Vt. 98, 300 A.2d 637 (1973); Washing-

ton, Freehe v. Freehe, 81 Wash.2d 183, 500 P.2d 771 (1972);

West Virginia, Coffindaffer v. Coffindaffer, 244 S.E. 2d 338

(W. Va. 1978); and Wisconsin, Haumschild v. Continental

Casualty Co., 7 Wis.2d 1301, 95 N.W.2d 814 (1959).

These decisions recognize that the reasons for the common

law rule no longer exist. Chief among the reasons traditionally

assigned as justification for the doctrine of interspousal immuni-

ty are: (1) the legal unity of the husband and wife recognized

at common law: (2) the promotion of peace and harmony in

the home; and (3) the avoidance of fraudulent or collusive

claims. Respondents argue that these justifications are still

valid. They say, in fact, that with widespread insurance cover-

age, the fear of collusion and fraud is intensified. Respon-

dents also correctly point out that the doctrine of interspousal

immunity is well established in this state and has been upheld

in our recent holdings. See Orefice v. Albert, 237 So.2d

142 (Fla. 1970); Bencomo v. Bencomo, 200 So.2d 171 (Fla.

1967).

1. UNITY

Petitioner first urges that the common law unity concept

which prohibited suits between spouses is no longer viable.

We agree. Since 1943, with the passage of the Married Women’s

Property Act, now chapter 708, Florida Statutes (1977), a

married woman in Florida has been empowered to manage

and control her separate property and to enter into agreements

A-15

and contracts with her husband. 2/ She may also enforce

her contract and property claims by suing her husband. Dodson

v. National Title Insurance Co., 159 Fla. 371, 31 So.2d 402

(1947). The legal unity concept prohibiting suits between

spouses was seriously eroded by the passage of this statute

permitting interspousal suits in a wide range of cases. With

the passage of chapter 708, and in view of the expanded legal

status of women, the common law unity concept is no longer

a valid justification for the doctrine of interspousal tort im-

munity. By rejecting the common law unity concept we do

not disparage the spiritual and emotional unity which has been

hold to exist by virtue of the marriage bond. As noted by the

2/ § 708.08, Fla. Stat. (1977) provides:

(1) Every married woman is empowered to take charge of and

manage and control her separate property, to contract and to be con-

tracted with, to sue and be sued, to sell convey, transfer, mortgage, use,

and pledge her real and personal property and to make, execute, and

deliver instruments of every character without the joinder or consent of

her husband in all respects as fully as if she were unmarried. Every married

woman has and may exercise all rights and powers with respect to her

separate property, income, and earnings and may enter into, obligate

herself to perform, and enforce contracts or undertakings to the same

extent and in like manner as if she were unmarried and without the joinder

or consent of her husband. Any claim or judgment against a married wo-

man shal] not be a claim or lien against her inchoate right of dower in

her husband’s separate property. All conveyances, contracts, transfers,

or mortgages of real property or any interest in it, executed by a married

woman without the joinder of her husband after the effective date of the

1968 Constitution of Florida, are as valid and effective as through the

husband had joined.

(2) Any married woman having a right of dower in real property

may relinquish it by joining in a conveyance or mortgage of the property

or by a separate instrument without the joinder of her husband, executed

in the same manner as conveyances.

A-16

Washington Supreme Court in a case abrogating the doctrine

of interspousal immunity in that state:

The “supposed unity” of husband and wife, which

serves as the traditional basis of interspousal disability,

is not a reference to the common nature or loving one-

ness achieved in a marriage of two free individuals.

Rather, this traditional premise had reference to a situa-

tion, coming on from antiquity. in which a woman’s

marriage for most purposes rendered her a chattel of

her husband.

Freehe v. Freehe, 81 Wash. 2d 183, 500 P.2d 771, 773 (1972). ~

It is the common law concept of legal unity which rendered

the wife a chattel of her husband, which can no longer operate

to preclude one spouse from suing the other for tortious injury.

Il. PEACE AND HARMONY

We also agree with petitioner that domestic tranquility is

no longer realistically served by the existence of the doctrine.

As we initially noted, in this state spouses are free to sue each

other for breach of contractual obligations and to protect

separate property rights, but may not bring interspousal actions

_2/ Continued

§708.09, Fla. Stat. (1977), provides:

Every married woman may enter into agreements and contracts with

her husband, may become the partner of her husband or others, may give

a power of attorney to her husband, and may execute powers conferred

upon her by her husband, including the power to execute and acknow-

ledge all instruments, including relinquishments of dower, conveying,

transferring, or encoumbering property, or any interest in it, owned by

her, or by herself and her husband as tenants by the entirety, or by her

husband. All powers of attorney heretofore executed by a wife to her

husband and vice versa, and the execution of all documents executed

thereunder, are hereby validated and confirmed.

A-17

for tortious injury. 2encomo v. Rencomo; Dodson v. National

Title Insurance Co., sections 708.08 and 708.09, Florida

Statutes, (1977). The inconsistency in this approach was

identified in a dissent to an opinion of the United States Su-

preme Court construing a District of Columbia women’s proper-

ty act to permit interspousal actions in tort only for the re-

covery of property. Justice Harlan dissented, noting that such a

construction would allow:

[A] married woman to sue her husband separately, in

tort, for the recovery of her property, but deny ....

her the right or privilege to sue him separately, in tort,

for damages arising from his brutal assaults upon her

person.

Thompson v. Thompson, 218 U.S. 611, 623, 31 S.Ct. 111,

114, 54 L. Ed. 1180 (1910). It is not logical to permit one and

not the other. If marital tranquility is preserved when lawsuits

are permitted between spouses over property and contract

rights, we see no reason to conclude that tort actions between

spouses should destroy it. We find support for this view in Dean

Prosser’s criticism of the doctrine. He writes:

The chief reason relied upon by all these courts, how-

ever, is that personal tort actions between husband and

wife would disrupt and destroy the peace and harmony

of the home, which is against the policy of the law. This

is on the bald theory that after a husband has beaten

his wife, there is a state of peace and harmony left to

be disturbed; and that if she is sufficiently injured or

angry to sue him for it, she will be soothed and de-

terred from reprisals by denying her the legal remedy -

and this even though she has left him or divorced him

for that very ground, and although the same courts

refuse to find any disruption of domestic tranquility

if she sues him for a tort to her property, or brings

a criminal prosecution against him. If this reasoning

appeals to the reader, let him by all means adopt it.

A-18

Prosser, Law of Torts, section 122, page 863 (4th Ed. 1971).

We agree, and conclude that the doctrine of interspousal tort

immunity cannot be validly justified on grounds that it serves

to maintain marital peace and harmony.

lil. FRAUD

A third argument often urged in support of the doctrine is

that to permit suits between spouses would encourage fraudu-

lent claims against insurers. Recognizing that the possibility

of fraud exists in any lawsuit, we reject the contention as a

valid justification for denying one spouse compensation for

injuries negligently inflicted by the other. Support for our

position is found in the responses of other states to the same

argument.

In rejecting the common law immunity rule, the Supreme

Court of Californis noted:

It would be a sad commentary on the law if we were

to admit that the judicial processes are so ineffective

that we must deny relief to a person otherwise entitled

simply because in some future case a litigant may be

guilty of fraud or collusion. Once that concept were

accepted, then all causes of action should be abol-

ished. Our legal system is not that ineffectual. -

Klein v. Klein, 58 Cal.2d 692, 26 Cal. Rptr. 102, 376 P.2d

70 (1962).

In a decision abolishing the common law interspousal tort

immunity in Indiana, the Supreme Court of that state first

noted that, “(t]he possibility of fraud and collusion exists

in all litigation.” Brooks v. Robinson, 284 N.E.2d 794, 797

(Ind. 1972). The court continued:

However, we are not convinced that the danger is so

great when the plaintiff and defendant are also husband

A-19

and wife that judicial relief should be summarily de-

nied. Furthermore, it should not be overlooked that

the testimony of both parties will be extremely vulner-

able to impeachment at trial on the grounds of bias,

interest and prejudice. The trial court’s responsibility,

indeed, its duty, to properly instruct the jury on the

credibility of witnesses and the rules governing the

weight of evidence will remain unchanged, and, as was

stated in United States v. Freeman (2d Cir. 1966),

357 F.2d 606, 620, “‘ . . . it cannot be presumed that

juries will check their common sense at the courtroom

door.”

Id., at 797.

The Washington Supreme Court rejected the same argument

with this reasoning:

{T]he fact that there may be greater opportunity for

fraud or collusion in one class of cases than another

does not warrant courts of law in closing the door to

all cases of that class. ... . Courts will not immunize

tort feasors from liability in a whole class of cases

because of the possibility of fraud, but will depend

upon the legislature to deal with the problem as a ques-

tion of public policy.

Freehe v. Freehe, 500 P.2d at 775 (quoting Borst v. Borst,

41 Wash. 2d 642, 251 P.2d 149, 155 (1952)).

Judge Liles, dissenting in Vinci v. Gensier, 269 So.2d 20

(Fla. 2d DCA 1972), summarizes our response to the concern

over fraud in interspousal tort litigation. He writes:

Some cases, in addition to maintaining family unity

and harmony, rely on the danger of fraud and collusion.

This, I think, denies the fact that judges are able to

A-20

detect collusion and fraud when they see it. It also overlooks

the fact that lawyers are officers of the court and practice

pursuant to an oath against bringing such suits and a canon

of ethics which prohibits such action.

.. . 1 further believe that the courts are capable of distinguish-

ing between a fraudulent raid on a treasury of an insurance

company and legitimate claims of a wife or child where the bene-

fit of liability protection has been purchased by the husband

and father. I cannot believe that the father purchased this

insurance policy to protect all other wives and children but

not his own.

Id. at 21-22.

These arguments persuade us that the fear of fraud and collu-

sion in interspousal suits for tort damages is not well founded.

We reject that consideration as a legitimate justification for

preserving the interspousal immunity doctrine.

Having concluded that the traditional reasons for the doc-

trine are not sufficiently persuasive to justify its continued

operation, we would join the many other states that have

totally or partially abrogated the doctrine.

In our opinion Bencomo v. Bencomo, 200 So.2d 171 (Fla.

1967) and Corren v. Corren, 47 So. 2d 774 (Fla. 1950) should

be overruled and the doctrine of interspousal tort immunity

should be abrogated so as to permit a married person to sue

his or her spouse for any torts committed by the marital part-

ner.

WEST KEY NUMBER SYSTEM

A-21

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

No. 19-373

DONALD JONES, Petitioner,

versus

UNITED STATES OF AMERICA, Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE FIFTH CIRCUIT

ROBYN GREENE, ESQUIRE

MARC COOPER, ESQUIRE

Suite 500, Roberts Building

28 West Flagler Street

Miami, Florida 33130

NEAL R. SONNETT, ESQUIRE

Greater Miami Federal Building

Suite 500, 200 S.E. First Street

Miami, Florida 33131

Counsel for Petitioner

September 4, 1979

A-22

INDEX

Page

CO III oka. oto venneccceicspeeeeeee 1

Pa EEE TUTE EC CT Er eee 2

PT TTP re ee 2

Statutory provisions involved ....................- 2

Statement of the case and facts ................... 3

Reasons for granting the writ .................2.06- 9

1. The Decision Below Conflicts With This

Court’s Decision In Remmer v. United

States, 347 U.S. 227 (1954), appeal after re-

mand, 350 U.S. 377 (1956) And With The

Court Of Appeals Decision In Marshall v.

United States, 436 F.2d 155 (D.C.Cir.

2. The Fifth Circuit Incorrectly Held That

This Court’s Decisions In Michigan uv.

Tyler, 436 U.S. 499 (1978) And Mincey v.

Arizona, 437 U.S. 385 (1978) Are Not

PURIORCTIOR 5... 6 aii Vatican ceatanaeni ene

CNOGUIEE sins s+ nos 0dge0d eitee cane oe ee eee

PIES ov nig-6 ok vo ns de nvde scoters

A-23

ii

CITATIONS

CASES:

Almeida-Sanchez v. United States,

Me Pee. CLOTS) occ ccc cc cccccccccccccecs 15, 16,

18, 20

Burnside v. Eastern Airlines, Inc.,

519 F.2d 1127 (5th Cir. 1975) .................. 14

Chimel v. California,

395 U.S. 753 (1969) ........ccccccccccees 17, 19, 20

Edwards v. Cook,

566 F.2d 960 (5th Cir. 1978) ............ 0. ce eee 14

Marshall v. United States,

436 F.2d 155 (D.C.Cir. 1971) .......... 9, 12, 13, 15

Michigan v. Tyler,

SE PE ROTO occ csi ccovcsccccccccce 2, 8, 15,

16, 17, 20

Mincey v. Arizona,

SRE CROIGD oc ccvccoccevccvecececes 2, 8, 15,

16, 17, 18, 19, 20

Remmer v. United States,

347 U.S. 227 (1954), appeal after

remand 350 U.S. 377 (1956) .............. 9, 10, 11,

Rogers v. United States,

se. ccckeeeecebeccesvaveses 14

CITATIONS (Continued)

CASES: Page

Terry v. Ohio,

— ¢98 Gee. Sere ren ere yr ers 18, 19, 20

United States v. Brignoni-Ponce,

gtk Boi. Fane yen yr 18, 19

United States v. Green,

474 F.2d 1385 (5th Cir. 1973) .............. eee 7, 8

United States v. Herndon,

390 F.Supp. 1017 (S.D. Fla. 1975) ............. 1, 6

United States v. Martinez,

526 F.2d 954 (5th Cir. 1976) ...............005. 18

United States v. Ortiz,

Pe }as Yh | ee ees rer ear 18, 19

United States v. Peltier,

gts ft. ere re 15, 18, 20

United States v. Shelton,

588 F.2d 1242 (5th Cir. 1978) .................. 13

United States v. United States Gypsum Company,

GOB Ve COE bend cnt wins Whi cies 14

STATUTES AND RULES:

8 i rer ener eee nn eee 2

LIT , GE. ode ntsc ibs to ne kad dae 4 a nae 2

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

No.

DONALD JONES, Petitioner,

versus

UNITED STATES OF AMERICA, Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE FIFTH CIRCUIT

The petitioner Donald Jones respectfully prays that

a writ of certiorari issue to review the judgment, opinion

and order on rehearing of the United States Court of Ap-

peals for the Fifth Circuit entered in this proceeding on

June 20, 1979 and August 6, 1979.

OPINION BELOW

The opinion and order denying rehearing in the

‘Court of Appeals, reported at 597 F.2d 485, appear in the

appendix to this brief. The District Court rendered a

written opinion on the search and seizure issue. United

States v. Herndon, 390 F.Supp. 1017 (S.D.Fla. 1975).

A-26

2

JURISDICTION

The judgment of the Court of Appeals for the Fifth

Circuit was entered on June 20, 1979. A timely petition

for rehearing and timely petition for rehearing en banc

were denied without opinion on August 6, 1979. This

‘petition for certiorari was filed within 30 days of that

date. This Court’s jurisdiction is invoked under 28

U.S.C. §1254(1).

QUESTIONS PRESENTED

1. Whether a defendant’s motion for new trial on

the ground of juror misconduct should be denied,

notwithstanding the rule that such misconduct is

presumptively prejudicial, because the defendant failed

to allege and prove that he acted with due diligence in

asserting the misconduct?

2. Whether this Court’s decisions in Michigan v.

Tyler, 436 U.S. 499 (1978) and Mincey v. Arizona, 437

U.S. 385 (1978) are retroactive?

STATUTORY PROVISIONS INVOLVED

Fed.R.Crim.P. 33. NEW TRIAL

The court on motion of a defendant may

grant a new trial to him if required in the in-

terest of justice. If trial was by the court

without a jury the court on motion of a defen-

dant for a new trial may vacate the judgment if

entered, take additional testimony and direct

the entry of a new judgment. A motion for a

A-27

3

new trial based on the ground of newly dis-

covered evidence may be made only before or

within two years after final judgment, but if an

appeal is pending the court may grant the mo-

tion only on remand of the case. A motion for a

new trial based on any other grounds shall be

made within seven days after verdict or finding

of guilty or within such further time as the

court may fix during the seven-day period.

STATEMENT OF THE CASE AND FACTS

Donald Jones was convicted by a jury of multiple

offenses relating to the operation of a whiskey distillery.

Three days after the verdict, one of the jurors contacted

the trial judge and told him that she had been ap-

proached by petitioner’s wife and a ‘“‘a huge black man.”

(R. 197).! The court ordered the U.S. Attorney and an

Alcohol, Tobacco and Firearms agent to interview all

jurors to determine whether they had been similarly ap-

proached. (R. 198).

While the investigation was pending, petitioner

moved for leave to interview the jurors. (R. 198). The

trial court deferred ruling on the motion until the

government completed its investigation. (R. 209).

Although the government’s investigation was

motivated by evidence that one or more of the jurors had

been approached after the verdict, that investigation

uncovered substantial evidence that someone had at-

tempted to bribe one of the jurors during the trial. (R.

'“R” refers to the record on appeal in the United States Court

of Appeals for the Fifth Circuit. “SR” refers to the supplemental

record in that court.

A-28

218). It also established that at least one#ther juror was

informed of the attempted bribe during the trial. (R.

219). The court set an immediate hearing ‘‘to ascertain

whether jurors were improperly contacted, either during

or immediately after the trial.’ (R. 213).

A hearing was held at which the jurors testified un-

der oath. (SR. 1-55). The evidence was uncontradicted.

It showed that someone had approached one of the

jurors on more than one occasion during the trial and of-

fered her a substantial sum of money to vote “not

guilty” for petitioner. It showed that the contacted juror

spoke with another juror on more than one occasion dur-

ing the trial and informed the second juror of the at-

tempted bribe. There was no evidence that petitioner

knew of, or had anything to do with, the attempted

bribe.

Notwithstanding uncontradicted evidence of a

bribe attempt, the trial court denied petitioner’s motion

for new trial. The United States Court of Appeals for the

Fifth Circuit affirmed. 597 F.2d 485 (5th Cir. 1979). It

recognized the rule of “presumptive prejudice”’

previously established by this Court:

It is well established law that an improper com-

munication such as a bribe offer to a juror dur-

ing the trial raises a presumption of prejudice

and that a new trial must be ordered unless the

government is able to bear its heavy burden of

proving harmlessness. Remmer v. United

States, 347 U.S. 227, 74 S.Ct. 450, 98 L. Ed.

654, appeal after remand, 350 U.S. 377, 76

S.Ct. 425, 100 L.Ed. 435 (1956).

A-29

Id. at 487. The court refused to apply the rule, however,

because petitioner did not prove that he acted with due

diligence to discover the bribe attempt prior to the

verdict:

The [petitioner] had the burden of proving that

this evidence was in fact newly discovered and

that his failure to discover it prior to verdict

was not due to his lack of diligence.

* * *

It is true that the evidence does not affir-

matively establish the [petitioner’s] involve-

ment in the bribe offer. However, our decision

is grounded on the total lack of evidence dis-

proving such involvement or knowledge.

* x *

In this case [petitioner] presented no evidence

whatever on the issues of his lack of knowledge

or his due diligence. . . . All that [petitioner]

has ever stated is that no evidence shows that

[petitioner] was “connected with” the bribe of-

fer. Thus [petitioner] never satisfied his burden

of proof as movant and the Remmer

presumption does not come into play.

Id. at 488, 489, n.4.

The government never asserted in the trial court or

on appeal that petitioner’s motion for new trial should

be denied because petitioner failed to show that he acted

with due diligence in discovering the bribe attempt. The

A-30

point was simply never an issue at the trial court’s

evidentiary hearing. On rehearing, petitioner moved the

Fifth Circuit to remand the case to the trial court to af-

ford petitioner an opportunity to prove that he acted

with due diligence.? The Fifth Circuit denied the

motion.

Petitioner had also filed a pretrial motion to sup-

press evidence seized on the premises. The facts are ac-

curately detailed in the trial court’s opinion. United

States v. Herndon, 390 F.Supp. 1017 (S.D.Fla. 1975).

The search and seizure began when state officers

received an anonymous phone call reporting a shooting

on the premises. They arrived at the farm and searched

the house and barn for anyone involved in or injured by

the shooting. Their search was cursory. They found

nothing in the house. They saw an apparatus in the barn

which they could not identify. They secured both the

house and barn.

They called another state officer who arrived and

searched the barn again. He identified the apparatus in

the barn as a still. Ho summoned federal agents.

The federal agents performed a comprehensive

search of the house and barn. They searched the entire

house and inspected the contents of drawers and closets.

They seized numerous items which were the subject of

the motion to suppress.

The officers admitted that the area was secure after

the initial search for victims of the shooting. Both the

*Petitioner attached to the motion his affidavit showing due

diligence. 3

A-31

second state officer and the federal agents admitted that

they had ample time and opportunity to obtain a

warrant. But they did not obtain one. The trial court

specifically rejected the government’s argument

that there was insufficient time for the ATF

agents to obtain a warrant. In fact the evidence

established that the ATF agents were called by

the county officers at about 9:00 P.M., and that

the magistrate could be reached until about

11:00 P.M. and was located only fifteen or

twenty miles away. Furthermore, Federal

Agent Harmon testified that the stills each

weighed about 2800 pounds, and that he was

not afraid that someone would walk away with

a still. As for the smaller items in the house, the

county police had surrounded the area.

Therefore, no emergency existed concerning

the speed with which the federal agents arrived

on the scene.

390 F.Supp. at 1020-21. The trial court nevertheless held

that the federal search was valid. It held that any right

of privacy had been eliminated by the previous state

search:

The rationale which justified the federal search

is that the subsequent intrusion does not

significantly increase a pre-existing legitimate

interference with a protected interest.

390 F.Supp. at 1021. The fourth amendment was

designed to prevent unauthorized invasions of privacy.

Based upon United States v. Green, 474 F.2d 1385 (Sth

Cir. 1973), the trial court reasoned that

A-32

once that privacy is lawfully invaded, a subse-

quent search of the area already searched con-

stitutes no additional invasion of privacy and

therefore no violation of the Fourth Amend-

ment.

- 390 F.Supp. at 1021. It concluded that the federal search

without a warrant was proper because

the federal authorities entered the premises

pursuant to a call by the local authorities, and

the search conducted by the federal agents was

directly related to the objects discovered by the

county officers.

390 F.Supp. at 1022.

The trial court’s decision was entered before this

Court’s recent decisions in Michigan v. Tyler, 436 U.S.

385 (1978) and Mincey v. Arizona, 437 U.S. 385 (1978),

which specifically reject the trial court’s rationale. The

Fifth Circuit refused to consider petitioner’s claim that

the trial court’s decision was contrary to Tyler and

Mincey. It concluded that Tyler and Mincey should not

be applied retroactively. Instead, the “prevailing law”

of the circuit, as stated in United States v. Green, 474

F.2d 1385 (5th Cir. 1973), should control.

A-3 3

9

REASONS FOR GRANTING THE WRIT

1. The Decision Below Conflicts With This

Court’s Decision In Remmer v. United

States, 347 U.S. 227 (1954), appeal after re-

mand, 350 U.S. 377 (1956) And With The

Court Of Appeals Decision In Marshall v.

United States, 436 F.2d 155 (D.C.Cir.

1971).

In Remmer v. United States, 347 U.S. 227 (1954),

appeal after remand, 350 U.S. 377 (1956), this Court

recognized the fundamental importance of a fair and

impartial jury when it concluded that evidence of jury

tampering raises a ‘‘presumption of prejudice’? which

entitles the defendant to a new trial unless overcome by

the government’s affirmative proof of harmlessness.

The presumption is not conclusive, but the

burden rests heavily upon the government to

establish, after notice to and hearing of the

defendant, that such contact with the juror was

harmless to the defendant.

347 U.S. at 229. The Fifth Circuit recognized this

presumption and the burden it places on the govern-

ment, 597 F.2d at 487, but nevertheless proceeded to

emasculate it by creating a “due diligence” requirement

which shifted the burden of proof to the defendant.

The Fifth Circuit’s newly created rule has a striking

effect when viewed against the facts of this case. Once

the government’s investigation showed evidence of juror

misconduct, the trial court ordered an evidentiary hear-

ing ‘“‘to ascertain whether jurors were improperly contac-

A-34

10

ted.” (R. 213). The hearing which followed established

precisely that. A juror had been bribed and at least one

other juror had been aware of the bribe. There was no

evidence that petitioner knew about the bribe or was in-

volved in it. Neither the trial court nor the government

at any time suggested that petitioner was required to

‘prove “‘due diligence” at this hearing.

Application of Remmer mandated that petitioner

was entitled to a new trial unless the government could

prove that the bribe attempt was harmless. In fact,

harmlessness was the only argument made by the

government on appeal. But the Fifth Circuit never

reached that issue. Instead, it concluded that petitioner

had failed to meet the burden of proving ‘‘due

diligence,” a burden which was never placed on him

before. The Fifth Circuit concluded that the absence of

such evidence meant that the presumption of prejudice

never arose. Under Remmer, it should have meant that

the presumption of prejudice was never rebutted.

In Remmer, this Court held that the defendant was

entitled to a new trial where someone approached a juror

during trial and indirectly suggested the possibility of a

bribe. When the defendant first filed his motion, the

‘trial court denied it without holding an evidentiary

hearing. The court of appeals affirmed on the ground

that the trial court did not abuse its discretion. This

Court reversed. It held that the improper contact was

presumptively prejudicial. The defendant was entitled

to a new trial unless the government could overcome the

presumption. 347 U.S. at 229. It remanded the case to

the trial court for an evidentiary hearing on the pre-

judice issue.

A-35

1]

On remand, the trial court held that there was no

prejudice. This Court again reversed. It concluded that

there was no evidence to overcome the presumption of

prejudice. 350 U.S. at 381. This Court held that the

defendant was entitled to a new trial.

Remmer mandated reversal of this case for a new

trial. Yet the Fifth Circuit circumvented Remmer and

the burden of proof it imposed on the government. It

viewed the appeal as one from a motion for new trial

based on newly discovered evidence, although petitioner

appealed the final judgment.

The Fifth Circuit held that petitioner had the bur-

den of proving that the evidence of jury tampering was

newly discovered and that failure to discover it prior to

verdict was not due to his lack of diligence. 597 F.2d at

488-89. Yet the court also stated:

It is true that the evidence does not affir-

matively establish the appellant’s involvement

in the bribe offer. However, our decision is

grounded on the total lack of evidence disprov-

ing such involvement or knowledge.

597 F.2d at 489, n.4.

Proving “due diligence’’ is no different than proving

“harmfulness.” Evidence that the defendant knew

about the bribe attempt before the verdict but chose to

do nothing would establish lack of due diligence. But

such proof would also establish harmlessness, because

the error would have been invited by the defendant. Un-

der Remmer, however, that burden rests on the govern-

ment, not the defendant. The fact that the government’s

A-36

12

burden might be heavy? is no justification for shifting

that burden back to the defendant under the guise of

“due diligence.”

The Fifth Circuit incorrectly applied the due

diligence standard for another reason. The bribe at-

-tempt infringed petitioner’s sixth amendment right to a

fair and impartial jury. The due diligence standard does

not apply to a newly discovered evidence claim of con-

stitutional magnitude. Marshall v. United States, 436

F.2d 155 (D.C.Cir. 1971). In Marshall, the court of ap-

peals reversed the trial court’s holding that the defen-

dant had to prove due diligence before he could obtain a

new trial based on newly discovered evidence that the

lineup in which he was identified was unconstitutional.

The fault with the ruling of the trial court here

is that appellant, if he has anything to com-

plain about on this point, can complain that

~The Fifth Circuit apparently feared that the government

might never be able to meet its burden:

The burden of proving harmlessness placed on the

Government by Remmer is difficult to bear. If all that

need be shown by a defendant is the existence of tamper-

ing, an unscrupulous defendant could purposefully sub-

vert the administration of justice by initiating such

bribery attempts.

597 F.2d at 489. But here the government did not adduce any

evidence whatsoever indicating that petitioner initiated the bribery

attempt. Obviously, such proof by the government might be a basis

for refusing to invoke the Remmer presumption. However, the

possibility that some defendant might initiate a bribe attempt is an

insufficient iustification for denying to all defendants a fair and im-

partial jury which the Remmer presumption seeks to insure.

A-37

13

his constitutional right to due process under

the Fifth Amendment has been denied him.

Such alleged infringement of his constitutional

rights could be raised by a collateral attack at

any time subsequent to the conviction becom-

ing final. If appellant can attack his conviction

collaterally, his counsel’s lack of diligence at

time of trial should be no barrier to considering

a motion for a new trial on the merits of the

constitutional grounds raised.

* * *

Thus we are of the view that the ‘“‘due

diligence” standard which ordinarily governs

disposition of motions for a new trial based on

allegedly newly discovered evidence. . . should

not apply when the new evidence raises issues

which challenge the constitutional validity of

the conviction. Cf. the standard established by

Fed.R.Crim.P. 52(a) for disregarding ordinary

trial errors as ‘“‘harmless’’ as contrasted with

the higher standard which the Supreme Court

in Chapman v. California, 386 U.S. 18, 87S.Ct.

824, 17 L.Ed.2d 705 (1967) has held must be

applied in judging the harmlessness of con-

stitutional error.

436 F.2d at 158-59..Marshall was later recognized by the

Fifth Circuit. United States v. Shelton, 588 F.2d 1242,

1250 (5th Cir. 1978). Yet the Fifth Circuit ignored it

here.

The Fifth Circuit’s circumvention of the presump-

tion and burden of proof required by Remmer is also ap-

A-38

14

parent in light of the well-established line of decisions

which hold that on appeal from final judgment, im-

proper juror contacts constitute plain error which will be

noticed by the court on its own initiative. United States

v. United States Gypsum Company, 438 U.S. 422 (1978)

(ex parte meeting between judge and juror warranted

new trial although point not argued in trial court, in

court of appeals or in supreme court briefs); Rogers v.

United States, 422 U.S. 35 (1975) (court’s instruction to

jury in absence of counsel plain error).

Petitioner appealed from the final judgment.‘ He

brought the issue to the trial court’s attention before the

notice of appeal was filed. He raised the issue on appeal.

In Rogers and United States Gypsum, this Court found

fundamental error warranting a new trial. United States

Gypsum was a civil case in which the issue was not

raised until oral argument. Yet this Court found plain

error requiring a new trial.

This Court’s opinion in Remmer was clear. Where

there is evidence of improper juror contact, the govern-

ment has the burden of overcoming the presumption of

prejudice by proving that the contact was harmless.

That rule cannot be circumvented by imposing an in-

itial burden on the defendant to prove that he could not

‘Petitioner appealed from the final judgment and conviction,

not the motion for new trial. An appeal from an out-of-time motion

for new trial is no substitute for an appeal from final judgment.

Edwards v. Cook, 566 F.2d 960 (5th Cir. 1978); Burnside v. Eastern

Airlines, Inc., 519 F.2d 1127 (5th Cir. 1975). Conversely, the presen-

tation of an ore tenus motion for new trial 19 days after verdict can-

not deprive petitioner of his right to a plenary appeal of the final

judgment which is governed squarely by Remmer and United

States Gypsum.

A-39

15

have discovered the impropriety before verdict. Fun-

damental constitutional error is not subject to the rule of

due diligence. The conflict between the Jones decision

and the Remmer and Marshall decisions justifies the

grant of certiorari to review the judgment below.

2. The Fifth Circuit Incorrectly Held That

This Court’s Decisions In Michigan v.

Tyler, 436 U.S. 499 (1978) And Mincey uv.

Arizona, 437 U.S. 385 (1978) Are Not

Retroactive.

The search and seizure which were the subjects of

petitioner’s motion to suppress occurred on April 12,

1974. This Court decided two cases in 1978 which

squarely govern the propriety of the search and seizure.

Michigan v. Tyler, 436 U.S. 499 (1978); Mincey uv.

Arizona, 437 U.S. 385 (1978). The Fifth Circuit misap-

plied this Court’s decision in United States v. Peltier,

422 U.S. 531 (1975) in determining that Mincey and

Tyler were not retroactive.

In Peltier, this Court determined that its decision in

Almeida-Sanchez v. United States, 413 U.S. 266 (1973)

should not apply retroactively. However this Court

carefully pointed out that it so ruled because Almeida-

Sanchez was a clear departure from existing statutory

and case law and law enforcement officers had a right to

rely on that prior law:

The Border Patrol agents who stopped and

searched respondent’s automobile were acting

pursuant to §287(a)(3) of the Immigration and

Nationality Act of 1952...

A-40

16

Between 1952 and Almeida-Sanchez, roving

Border Patrol searches under §287(a)(3) were

upheld repeatedly against constitutional

attack... .

It was in reliance upon a validly enacted

statute, supported by long-standing ad-

ministrative regulations and continuous

judicial approval, that border patrol agents

stopped and searched respondent’s

automobile. Since the parties acknowledge

that Almeida-Sanchez was the first roving Bor-

der Patrol case to be decided by this Court,

. we cannot regard as blameworthy those

parties who conform their conduct to the

prevailing statutory or constitutional norm.

422 U.S. at 540-41 (footnotes omitted).

Almeida-Sanchez was this Court’s first roving bor-

der patrol case and was contrary to the “prevailing

statutory or constitutional norm.” This Court therefore

concluded that the decision should not affect searches

conducted pursuant to that norm. Mincey and Tyler,

however, were not the first cases to deal with exigent cir-

cumstances and the right of privacy. They were not con-

trary to the prevailing constitutional norm. Rather, they

were fully in accord with the norm which existed not

only when they were decided, but also when the searches

in this case were conducted. There is no issue of retroac-

tivity because Mincey and Tyler did not create any new

constitutional principle.

A-41

17

In Mincey and Tyler, this Court held that once the

exigent circumstances which justify the initial intrusion

into defendant’s premises disappear, law enforcement

officers cannot search any further in the absence of a

warrant. In Mincey, this Court rejected the argument,

relied on by district court and the government here, that

the initial police intrusion into a building justified by an

emergency eliminated any right of privacy in the

premises and justified a subsequent warrantless search.

It is one thing to say that one who is legally

taken into police custody has a lessened right of

privacy in his person. [citations omitted]. It is

quite another to argue that he also has a

lessened right of privacy in his entire house.

437 U.S. at 391. This conclusion was not based on any

new constitutional principle. It was well-settled law

from this Court’s prior decisions.

Indeed this very argument was rejected when it

was advanced to support a warrantless search

of a dwelling where a search occurred as ‘‘inci-

dent” to the arrest of its occupant. Chimel v.

California, 395 U.S. 753, 766 n.12, 89 S.Ct.

2034, 2042, 23 L.Ed.2d 685.

Id. Chimel was decided in 1969, four years before the

search in this case. This Court was explicit in Chimel:

[W]e can see no reason why, simply because

some interference with an individual’s privacy

and freedom of movement has lawfully taken

place, further intrusions should automatically

A-42

~

18

be allowed despite the absence of a warrant

that the Fourth Amendment would otherwise

require.

395 U.S. at 766, n.12.

This Court also held in Mincey that the warrant-

less first search had to be circumscribed by the

emergency which initially justified it. Once the

emergency ended, any further search required a

warrant. Again, this holding merely reiterated this

Court’s prior decision in Terry v. Ohio, 392 U.S. 1

(1968). Mincey, supra, 437 U.S. at 390. As this Court

stated in Terry:

A search for weapons in the absence of

probable cause to arrest, however, must, like

any other search, be strictly circumscribed by

the exigencies which justify its initiation. [cita-

tions omitted].

392 U.S. at 25-26 (emphasis added).

The Fifth Circuit itself has not consistently dealt

with the retroactivity issue. It has applied Peltier in the

same manner which petitioner urged in this case. United

States v. Martinez, 526 F.2d 954 (5th Cir. 1976) (opinion

on rehearing en banc). In Martinez, a search took place

subsequent to Almeida-Sanchez but before the decisions

in United States v. Ortiz, 419 U.S. 824 (1975) and

United States v. Brignoni-Ponce, 422 U.S. 873 (1975).

The government contended that Ortiz and Brignoni-

Ponce could not be considered in determining the

validity of the search. The Fifth Circuit rejected that

contention.

A-43

19

Here then we have a search post Almeida-

Sanchez and pre-Ortiz. The government argues

that the extension of the rule announced in

Almeida-Sanchez, applied to checkpoint

searches for the first time in Ortiz, should not

be given retrospective application. We dis-

agree. Ortiz did not establish a new rule in an

overruling decision. See United States v.

Peltier, 1975, 422 U.S. 531, 95 S.Ct. 2313, 45

L.Ed.2d 374; United States v. Miller, 5 Cir.

1974, 492 F.2d 37, 40. On the contrary the

Court took pains to point out that it was follow-

ing Chambers v. Maroney, 1970, 339 U.S. 42,

90 S.Ct. 1975, 26 L.Ed. 419, and Almeida-

Sanchez.

526 F.2d at 955 (emphasis by court). The court also re-

jected the argument that Brignoni-Ponce should not be

considered retrospectively because

Brignoni-Ponce did not establish a new rule in

an overruling decision, Miller, supra, or a new

constitutional principle, Peltier, supra.

526 F.2d at 956.

In Mincey, as in Ortiz, this Court carefully pointed

out that it was following established law. It did not es-

tablish a new constitutional principle or an overruling

decision. The limited nature of exigent circumstances

which justify a warrantless search was spelled out in

Terry in 1968. The effect of a limited intrusion on a per-

son’s right to privacy was spelled out in Chimel. Terry

and Chimel established the parameters of the officers’

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20

conduct at the time of the search in this case. The

justification advanced in Peltier for denying retrospec-

tive application of Almeida-Sanchez simply does not

apply to Mincey.

The Fifth Circuit’s refusal to apply Mincey and

Tyler means that every time this Court applies one of its

earlier search and seizure decisions to a different set of

facts that application has no effect on searches con-

ducted prior to it. In Peltier, this Court criticized Justice

Brennan’s dissent in which he stated that ‘‘the first duty

of a court will be to deny the accused’s motion to sup-

press if he cannot cite a case invalidating a search-or

seizure on identical facts.” 422 U.S. at 542, n.13. Yet

that is precisely what the Fifth Circuit did here. Terry

and Chimel required suppression of the evidence by the

trial court. Mincey’s application of Terry and Chimel re-

quired suppression by the Fifth Circuit. The facts of

Terry and Chimel were not identical to this case. The

application of those cases to identical facts occurred af-

ter the search. Yet the Fifth Circuit applied the retroac-

tivity concept.

Peltier did not intend such a result. Once this Court

proscribes a certain type of conduct, the government

should not need additional case law on each fact situa-

tion to which that rule of law could be applied before the

government agents “‘have notice” of the law. That would

eliminate the deterrent effect of the exclusionary rule.

Compare Peltier, supra, 422 U.S. at 538-39. The Fifth

Circuit’s distortion of this Court’s decision in Peltier

justifies the grant of certiorari to review the judgment

below.

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CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment, opinion and order on rehearing of

the Fifth Circuit.

Respectfully submitted,

ROBYN GREENE, ESQUIRE

MARC COOPER, ESQUIRE

Suite 500, Roberts Building

28 West Flagler Street

Miami, Florida 33130

NEAL R. SONNETT, ESQUIRE

Greater Miami Federal Building

Suite 500, 200 S.E. First Street

Miami, Florida 33131

Counsel for Petitioner

September 4, 1979

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APPENDIX

UNITED STATES of America,

Plaintiff-Appellee,

v.

Donald E. JONES,

Defendant-Appellant.

No. 78-5509.

United States Court of Appeals,

Fifth Circuit.

June 20, 1979.

Appeal from the United States District Court for

the Southern District of Florida.

Before AANSWORTH and VANCE, Circuit Judges,

and BOOTLE,”* District Judge.

BOOTLE, District Judge:

Convicted by a jury of multiple offenses relating to

the operation of an illegal whiskey distillery and not

challenging the sufficiency of the evidence, appellant

urges two grounds for reversal: first, alleged error in

denying his motion for new trial upon his showing that

someone attempted to bribe a juror during trial and,

second, alleged error in denying his motion to suppress

*District Judge of the Middle District of Georgia, sitting by

designation.

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2a

evidence seized in a search made without a search

warrant. For reasons following we affirm.

On August 1, 1975 a jury convicted the appellant,

Donald E. Jones, on five counts of a seven count indict-

ment arising out of his participation in the operation of

an illegal whiskey distillery. The district court dis-

missed one count as duplicative of other counts and the

jury acquitted appellant on one count. Appellant failed

to appear for a hearing and sentencing on August 20,

1975 and was not apprehended until almost three years

later. He was finally sentenced on June 23, 1978 and now ©

appeals his conviction.

I. Jury Tampering

Two days after the verdict, one of the jurors was

contacted by appellant’s wife, Debra Jones, and “‘a huge

black man’”’ who was later identified as Willie Lucas.

Lucas solicited this juror’s agreement that appellant

had been “‘shanghaied”’ and refused to tell her how her

address had been found. This juror, being upset, con-

tacted the trial judge who on August 4, 1975 entered an

order directing an investigation by the United States At-

torney’s office and the Bureau of Alcohol, Tobacco and

Firearms. The court directed that all statements taken

during the investigation be filed with the Clerk as part

of the record. The positive identification of Willie Lucas

as the “huge black man”’ is supplied in a report of an in-

terview with Lucas so filed.

On August 5, 1975, appellant submitted a motion to

interview jurors pursuant to a local rule and filed in sup-

port thereof an affidavit dated August 4, 1975 by the

same Willie Lucas which detailed post-verdict state-

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3a

ments made by another juror, Arlie Crooms. Ms.

Crooms was quoted as saying to him that she did not feel

that the right verdict was given, that there was no proof

that appellant owned the stills, and that she voted

guilty only because of pressure from other jurors and her

illness during the deliberations.

During the court ordered investigation, ATF agents

interviewed all the jurors concerning possible ap-

proaches. When they interviewed Ms. Reboso, one of

these jurors, they were told that juror Arlie Crooms had

told her during the trial that she had been offered $1000

by someone to vote for acquittal. Subsequently, Ms.

Crooms was interviewed and denied any improper ap-

proach. She later recanted and informed the ATF of a

bribe offer by Willie Lucas who asked that she vote to

acquit appellant. .

The district court ordered a hearing on the matter

for August 20, 1975. At the hearing, Ms. Crooms, Ms.

Reboso, and the juror who was subjected to a post-

verdict approach all testified. They were questioned by

the Government attorney and by counsel for a co-

defendant, B. J. Herndon, but no questions were asked

by appellant’s counsel. In fact, no evidence at all was

submitted on behalf of appellant. The district court was

informed that the Marshal had been unable to serve a

subpoena on Willie Lucas and that the Marshal had

been told that Lucas had decided to go to Nassau until

August 24th. As stated previously, appellant also failed

to appear and participate in this hearing despite the fact

that by order of August 12, 1975 the district court had

commanded his presence and despite the fact that at

10:30 A.M. on the morning of the hearing appellant and

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4a

his wife were in his attorney’s office at which time his at-

torney cautioned him to be present for the hearing at

1:00 P.M. The only explanation of his absence was made

by his attorney as follows: ‘‘I spoke to Mrs. Debra Jones.

She said that she left Donald a while ago and he was on

his way down here. They came in separate cars. She

made it; I don’t know why he didn’t make it.’ As above

indicated, appellant’s wife Debra (with separate coun-

sel) was present at the hearing and, despite her par-

ticipation in the post-verdict approach to a juror, was

not called by appellant’s counsel or by anyone as a

witness. At the conclusion of the testimony, appellant’s

counsel made a motion which in substance was a motion

for a new trial! and the district court denied it.

_“ It is well established law that an improper com-

~—“" munication such as a bribe offer to a juror during the

trial raises a presumption of prejudice and that a new

'‘Appellant’s motion is quoted in full below:

I would like to make a Motion at this time on behalf of

Mr. Donald Jones that based upon the testimony ad-

duced here from the juror, Mrs. Crooms, and which is

corroborated by Mrs. Reboso, and whom Mrs. Crooms

corroborates, the fact that Mrs. Reboso had made men-

tion she knew a particular witness and the fact that for

two days, apparently, Mrs. Reboso had known the name

of one of the defendants, and Mrs. Crooms said that she

had reached a verdict, apparently not by choice but by

what she says was the — either the other understanding

of Mrs. Reboso or some of the other jurors, that she

would have to come back and she wasn’t feeling well,

and that she reached a verdict that did indicate what she

felt to be her verdict; she did it because of compliance

with other jurors, so on that basis and on the testimony

adduced, I would make a motion on behalf of Don Jones

to set aside the verdict as returned by this jury.

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trial must be ordered unless the Government is able to

bear its heavy burden of proving harmlessness. Remmer

vu. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed.

654 (1954), appeal after remand, 350 U.S. 377, 76 S.Ct.

425, 100 L.Ed. 435 (1956). Both appellant and the

Government have concentrated their efforts primarily

on the question of harmlessness raised in Remmer. The

Government has asserted that both jurors, Ms. Reboso

and Ms. Crooms showed by their testimony that the

bribe offer had no effect on their deliberation.? Ap-

pellant insists that harmlessness was not shown. Both

sides have overlooked some fundamental issues inherent

in the procedural context in which appellant’s motion

was nade. Since these questions are controlling, this

court need not reack the issue of harmlessness.

The jury’s verdict was returned August 1, 1975. A

timely motion for new trial was filed on August 8, 1975

and overruled on August 12, 1975. Appellant’s motion

which is the subject of this appeal was not made until

August 20, 1975. After seven days from the date of the

verdict, a motion for new trial cannot be entertained

unless it is based on newly discovered evidence.

Fed.R.Cr.P. 33. Appellant’s motion was thus one which

would have to be founded upon allegedly newly dis-

‘Juror Crooms testified: “I didn’t say anything to her (referring

to Juror Reboso) because after she didn’t call me, I didn’t say

anything to her because I had decided to forget about it.” (Supp. R.

19). Juror Reboso testified: ‘I didn’t think of it at all. I was having

personal problems which were more important to me at the time. I

sort of heard her and it went in one ear and out the other because

my problems were major problems. I mean, I am being as sincere as

I can be.” (Supp. R. 38). In addition Juror Crooms argued for ap-

pellant’s acquittal during jury deliberations and the jury did in fact

acquit him of one count.

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6a

covered evidence of an improper communication to a

juror. This court and the Court of Appeals for the Sixth

Circuit have recognized the propriety of categorizing

such a motion as one for a new trial based upon newly

discovered evidence. Richardson v. United States, 360

F.2d 366 (5th Cir. 1966); Zachary v. United States, 275

F.2d 793 (6th Cir. 1960). Both the Government and ap-

pellant have treated the issues in this case without

recognizing the requirements and burdens placed on a

defendant presenting such a motion.

In most new trial motions based on newly dis-

covered evidence, the proffered evidence goes directly to

proof of guilt or innocence. In such a motion the movant

has a burden of showing (1) that the evidence was in fact

discovered after the verdict, (2) that the movant’s

failure to learn of this evidence was not due to any lack

of diligence on his part, (3) that the evidence is material

and not merely cumulative or impeaching, and (4) that

a new trial would probably result in an acquittal. United

States v. Bryant, 563 F.2d 1227 (5th Cir. 1977); United

States v. Rachal, 473 F.2d 1338 (5th Cir. 1973);

United States v. Hagerty, 561 F.2d 1197 (5th Cir. 1977);

United States v. Schwartzenbaum, 527 F.2d 249 (2d Cir.

1975); United States v. Ellison, 557 F.2d 128 (7th Cir.

1977). Admittedly, there are major distinctions in the

substance of the evidence proffered by the appellant and

that proffered in the above cited cases since appellant’s

evidence goes to the fairness of the trial rather than to

the usual question of guilt or innocence. Regardless of

those distinctions a motion for a new trial can not be

based on newly discovered evidence unless that evidence

is in fact unknown to the movant until after the verdict.

The appellant had the burden of proving that this

evidence was in fact newly discovered and that his

A-52

Ta

failure to discover it prior to verdict was not due to his

lack of diligence. Zachary v. United States, supra; see

United States v. Ellison, supra. It deserves note that in

Remmer, it was established, by the Government’s

failure to deny, that ‘“[nJeither the judge nor the

prosecutors informed the petitioner of the incident, and

he and his counsel first learned of the matter by reading

of it in the newspapers after the verdict.” 347 U.S. at

228, 74 S.Ct. at 451, 98 L.Ed. at 655. Such a burden is

eminently reasonable in view of the devastation which

jury tampering could bring to our country’s highly

valued jury system. The burden of proving harmlessness

placed on the Government by Remmer is difficult to

bear. If all that need be shown by a defendant is the ex-

istence of tampering, an unscrupulous defendant could

purposefully subvert the ad ninistration of justice by in-

itiating such bribery attempts.

’Another line of cases forcefully shows the relevance of a defen-

dant’s knowledge or lack of knowledge before the verdict of jury

tampering. These cases teach that a defendant cannot learn of juror

misconduct during the trial, gamble on a favorable verdict by

remaining silent, and then complain in a post-verdict motion that

the verdict was prejudicially influenced by that misconduct. Oakes

uv. Howard, 473 F.2d 672 (6th Cir. 1973); United States v.

Brumbaugh, 471 F.2d 1128, 1130 (6th Cir. 1973) (McCree, J., con-

curring); United States v. Carter, 433 F.2d 874 (10th Cir. 1970);

Hall v. United States, 396 F.2d 428 (10th Cir. 1968); United States

v. Coduto, 284 F.2d 464 (7th Cir. 1960). The rule requiring a show-

ing that the evidence of jury tampering is newly discovered and the

rule of waiver established by the above cited cases are not aimed

necessarily at discovering a defendant’s complicity in the improper

communication to the jury. The policies behind both rules fully en-

compass any knowledge possessed by the defendant before the ver-

dict whether it be innocent or not. Such knowledge should be dis-

closed to the trial judge before the verdict so that an attempt can be

made to salvage the trial by ridding the jury of prejudicial in-

fluences.

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8a

In this case appellant presented no evidence

whatever on the issues of his lack of knowledge or his

due diligence. In fact, his counsel did not even disclaim

such knowledge on behalf of appellant. All that ap-

pellant has ever stated is that no evidence shows that

appellant was “connected with” the bribe offer.‘ Thus

appellant never satisfied his burden of proof as movant

and the Remmer presumption does not come into play.

The district court. was correct in denying appellant’s

motion for new trial.

II. Motion to Suppress

Appellant’s other contention is that the district

court should have suppressed evidence seized by ATF

agents during a search conducted without a warrant. On

April 12, 1974, local police officers responded to a re-

ported shooting at the premises leased by appellant.

During their search for suspects or injured persons, these

officers discovered appellant’s illegal stills and other

‘It is true that the evidence does not affirmatively establish the

appellant’s involvement in the bribe offer. However, our decision is

grounded on the total lack of evidence disproving such involvement

or knowledge. Though not a basis for our decision, it is interesting

to note that the circumstances that are shown by the record tend to

show rather than negate such knowledge or involvement. Willie

Lucas, who offered the bribe, accompanied appellant’s wife two

days after the verdict in an attempt to solicit a juror to impeach the

verdict. In furtherance of this endeavor, Lucas submitted an af-

fidavit as support for appellant’s motion to interview jurors. Events

that came to light at trial also raise questions. It is clear that Debra

Jones and a Government witness, with appellant’s knowledge,

negotiated an agreement to ;ay said witness a large sum if he would

not testify. The witness claims that appellant offered a bribe; ap-

pellant describes these events as an extortion attempt by the

witness. Unfortunately, we have no way of knowing what the jury

thought of these contacts.

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9a

related paraphernalia. These local officers then called in

ATF agents who seized certain evidence. This court

agrees with the district court’s conclusion® that the ATF

agents’ conduct was proper under the doctrine of United

States v. Green, 474 F.2d 1385 (5th Cir. 1973) which was

the then prevailing law of this circuit. See, United

States v. Brand, 556 F.2d 1312 (5th Cir. 1977).

Appellant contends that two recent Supreme Court

cases, Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56

L.Ed.2d 486 (1978), and Mincey v. Arizona, 437 U.S.

385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978), invalidate

Green and require that the evidence seized in the in-

stant search be*excluded. We conclude that Tyler and

Mincey should not be applied retroactively on the facts

of this case. United States v. Peltier, 422 U.S. 531, 95

S.Ct. 2313, 45 L.Ed.2d 374 (1975); United States v.

Montgomery, 558 F.2d 311 (5th Cir. 1977).

AFFIRMED.

“United States v. Herndon, 390 F.Supp. 1017 (S.D.Fla. 1975).

A-55

10a

United States Court of Appeals

FIFTH CIRCUIT

OFFICE OF THE CLERK

August 6, 1979

TO ALL PARTIES LISTED BELOW:

NO. 78-5509 — U.S.A. v. DONALD E. JONES

Dear Counsel:

This is to advise that an order has this day been en-

tered denying the petition( ) for rehearing, and no

member of the panel nor Judge in regular active service

on the Court having requested that the Court be polled

on rehearing en banc (Rule 35, Federal Rules of Ap-

pellate Procedure; Local Fifth Circuit Rule 16) the peti-

tion( ) for rehearing en banc has also been denied.

See Rule 41, Federal Rules of Appellate Procedure

for issuance and stay of the mandate.

Very truly yours,

EDWARD W. WADSWORTH,

Clerk

By/s/Sally Hayward

Deputy Clerk

cc: Mr. Neal R. Sonnett

Mr. Marc Cooper

Mr. Bruce A. Zimet

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UNITED STATES of America

Vv.

Bobby J. HERNDON et al.,

Defendants.

No. 74-549-Cr-CF.

United States District Court,

S.D. Florida.

Feb. 20, 1975.

William Northcutt, Asst. U.S. Atty., Miami, Fla.,

for the United States.

Bernstein & Robrish, Miami, Fla. for defendant

Bobby J. Herndon.

Max P. Engel, Miami, Fla., for defendant Donald

E. Jones.

Louis Stoskopf, Miami, Fla., for defendant Thomas

E. Jones.

ORDER

FULTON, Chief Judge.

In an Indictment filed on September 25, 1974, the

defendants were charged with the illegal operation of a

still located at Barn No. 4, 19955 S.W. 248th Street,

Dade County, Miami, Florida, in violation of 26 U.S.C.

§§5601(a)(1), (2), (4), (8), 5602, 5604, and 18 U.S.C.

§371. On November 12, 1974, defendants Herndon,

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12a

Donald Jones and Thomas Jones filed a motion to sup-

press various equipment, supplies and miscellaneous

items useable in the manufacture of whiskey which were

seized on April 12, 1974 during a search of the barn, the

house, several vehicles, and the person of Thomas Jones

in the vicinity of 19955 S.W. 248th Street, Miami,

Florida. Defendants contend that the search constituted

a violation of the Fourth Amendment of the United

States Constitution in that it was made without a search

warrant and not incident to a lawful arrest. The govern-

ment argues that the search was justified due to exigent

circumstances. The government concedes that the

defendants all have standing to bring this motion to

suppress: Thomas Jones was on the premises when the

search took place; Donald Jones was renting the

premises; and Bobby Joe Herndon was living on the

premises.

On December 13, 1974, the Court held an eviden-

tiary hearing on defendants’ motion. Testimony pre-

sented at the hearing established that on Friday, April

12, 1974, at 7:31 P.M. the Dade County Public Safety

Department Perrine Substation received a call that

there had been ‘“‘shots fired in the area” at 19955 S.W.

248th Street. At 7:33 P.M., a patrol car unit was dis-

patched with one back-up unit. At 7:46 P.M. these two

units responding to the call arrived on the scene.

As reflected by plaintiffs exhibit 1A, 19955 S.W.

248th Street, Dade County, Florida, is a rural farm area.

The subject property consists of a house approximately

150 Feet from the road and a single story barn approx-

imately 300-400 Feet from the rear of the house. The

barn is approximately 50 Ft. in width and 500 Ft. in

length.

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13a

Officers Charter and Dwyer were the two units who

were dispatched to answer the call at 7:33 P.M. Officer

Dwyer was the backup unit. Prior to either officer

reaching the scene of the alleged shots, they were met by

an unidentified white female in a light colored Cadillac

who communicated with Officer Dwyer that one of the

participants in the alleged shooting was parked on the

corner of 199th Avenue and 244th Street. Both officers

proceeded to this area. Both officers approached the

defendant, Thomas Jones, who was seated in his

automobile. Mr. Jones’ automobile was parked approx-

imately 200 yards from the rear of the subject barn. Dur-

ing the conversation with defendant, Thomas Jones, a

16 year old white male approached the officers and in-

formed them that Thomas Jones did, in fact, reside at

the scene and was, in fact, a participant in the “shots

fired” as reported earlier. Thereafter, Officer Dwyer left

the area with his unit and proceeded to 19955 S.W.

248th Street, where the house and barn are located. Of-

ficer Charter remained with defendant Jones, who was

not yet under arrest.

Upon arriving at the scene, Officer Dwyer spoke

with several more neighbors who informed him that they

had observed three white males leave the barn, one en-

tering his automobile and driving to the road in front of

the house, the other two leaving the house at which time

the shots were fired in the immediate area. After this in-

formation was related to Officer Dwyer, he approached

the house and heard the telephone ring. On the front

porch Officer Dwyer looked into the living room area

through the front picture window and then entered the

house, without knocking, through the partially opened

door, and proceeded through the living room area into

the kitchen where he answered the phone. Officer Dwyer

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14a

testified that he entered the house and subsequently the

barn to look for injured persons or additional witnesses

in connection with the shooting investigation. Officer

Dwyer then looked around and saw no blood or injured

people in the house.

_ Having found no one in the house, Officer Dwyer

communicated with Officer Charter to proceed to the

barn to search for injured people there. Officer Charter

then arrived with defendant Jones in the rear cage por-

tion of the car. Officer Charter testified that Jones had

been arrested by this time for loitering and prowling

because he could not explain his presence in the area.

Officer Charter testified that the barn door was partially

opened approximately 4 to 6 inches. The officers entered

the barn equipped with flashlights and remained in the

barn approximately 5 to 10 minutes. In the rear portion

of the barn the officers came across what appeared to

them to be some form of a “still”. The officers then

departed the barn, went back to the house at which time

Officer Dwyer telephonically communicated with the

Perrine Substation for them to dispatch the duty

Lieutenant to proceed to the scene. Lt. Lyons arrived at

the scene at approximately 8:30 P.M. and spoke with

both Officers Dwyer and Charter. Subsequently, all

three officers re-entered the barn and again viewed what

the officers concluded was a possible illegal ‘‘still’’. The

officers then departed the barn, re-entered the house at

which time Lt. Lyons again telephonically com-

municated with the Perrine Substation and requested

specifically that a Federal Treasury Agent, Agent

Nowicki be telephoned and informed that an illegal still

was being operated at the subject location. Agent

Nowicki and Agent Harmon of the Bureau of Alcohol,

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15a

Tobacco and Firearms of the United States Treasury

Department (hereinafter referred to as ““ATF’’) arrived

at approximately 10:00 P.M.

Treasury Agent Nowicki, after receiving the com-

munication from the Perrine Substation, called Agent

Harmon and requested that he accompany him to the

location in the Southwest area of Dade County where

the illegal ‘“‘still’”’ had been reported. Agent Nowicki

readily admitted in his testimony that he attempted no

communication whatsoever with any United States At-

torney, Federal Judge or Magistrate at any time what-

soever on the evening of April 12, 1974.

Upon the arrival at approximately 10:00 P.M.,

Agent Nowicki testified that he read defendant Jones

his rights and was handed a small wrench and knife pur-

portedly taken from defendant, Thomas Jones upon his

arrest by Officer Charter. Agent Nowicki purportedly

observed a substance “mash” on the wrench itself and

requested of defendant Jones to take his shoes off for

possible evidence. Both Agents Nowicki and Harmon

spoke with Lt. Lyons and Officers Charter and Dwyer as

to their observations in the subject barn. The agents

then proceeded to the barn, and viewed the still. From

there they went to the house, following the electric wires

from the still water pump. In the house they found

several receipts from the Tropigas Company, a Georgia

telephone book and some shoes, on the soles of which

was mash. The gas receipts were in a closet in the hall by

the electric panel where the wires terminated. The closet

was open. The phone book was in a drawer which was

partially open in a table and the shoes were on the floor

in the bedroom.

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The ATF agents then went outside the house and

peeked into a truck camper parked on the lawn. In the

truck they observed cardboard cartons similar to the

ones they saw beside the still. These cartons were

labeled ‘Reliance Products Ltd., Winnipeg, Canada.”

The truck was seized and the glove compartment was

searched. An auto repair bill was found therein. The in-

terior of the rear of the truck camper smelled of whisky.

This occurred about 11:00 P.M.

The ATF agents then went to the car in which Jones

was found. They saw in it items similar to those they

saw by the still. They searched and seized it. In it they

found a hydrometer.

All of the state and federal agents who testified at

the hearing readily admitted that absolutely no attempt

whatsoever was made to obtain any arrest or search

warrants. In their view, none were required due to the

exigent circumstances. Therefore, unless the Court finds

that the searches were not justified and thus grants the

motion to suppress, the Government will introduce at

trial the following items from these searches and

seizures:

1. The driver’s license, wrench and shoes found on

Thomas Jones.

2. Pictures and testimony about the still and

related paraphernalia from the area of the barn.

3. The receipts, phone book and shoes from the

house.

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17a

4. The cartons and receipt from the truck camper

in the yard.

5. The hydrometer found in the car in which Jones

was arrested.

Two searches were conducted in this case, the first

by county police, and the second by federal ATF agents.

In order to be upheld, both searches must be valid.

Defendant Thomas Jones was placed under arrest .

by the county police officers at about 8:15 P.M. on April

12, 1974 for loitering and prowling. However, the search

of the house and barn by the state officers can not be

considered as incident to a legal arrest for the following

reasons: 1) Officer Dwyer had already entered and

searched the house before Officer Charter placed Jones

under arrest. 2) The officers entered the barn pursuant

to their investigation of the shooting incident which had

no relation to an arrest for loitering and prowling. Later

in the evening an ATF agent placed Jones under arrest

for the additional charge of possession of a switchblade

knife. This arrest, however, occurred after both the

house and barn had been searched by the county of-

ficers. 3) The county officers testified that both the

loitering and prowling and possession charges against

Jones were later dismissed for lack of prosecution and

never refiled. This factor is some support for defendants’

contention that the arrests themselves were not !egal.

The Court finds, however, that the county officers’ ‘

search was legal as based upon the exigent circumstance

of looking for victims of a shooting incident. Being in a

place where they had a right to be, the officers found the

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still because it was in plain view. Witnesses had re-

ported that they had heard shots fired and had seen

three men running in the vicinity of the house and barn.

Therefore it was logical and prudent for the officers to

consider that there might be someone injured and in

need of help in the house or the barn. The fact that no

‘victims were actually found does not negate the real

possibility that existed.

In Guzman v. Estelle, 493 F.2d 532, 537 (5th Cir.

1974), the court held that lack of time in which the

search warrant could have been secured is an exigent

circumstance that justifies a warrantless search. In this

case, it would be senseless to expect police officers to ob-

tain a warrant before answering the dispatch call, or,

once on the scene, before entering the buildings. Clearly,

in matters involving possible injury by gun shot, time is

of the essence.

Once legally inside the barn, the still was in plain

view. In Coolidge v. New Hampshire, 403 U.S. 443, 465,

91 S.Ct. 2022, 29 L.Ed.2d 564 (1970), Justice Stewart

held that where the initial intrusion that brings the

police within plain view of an article is supported not by

a warrant but by one of recognized exceptions to the

warrant requirement, the seizure is legitimate. He

stated that the plain view doctrine may be applied

where an officer is not searching for evidence ayainst the

accused, but inadvertently comes across an in-

criminating object. Jd. at 466, 91 S.Ct. 2022. Where ob-

jects fall in the plain view of an officer who has a right to

be in the position to have that view, they are subject to

seizure and may be introduced in evidence. Harris v.

United States, 390 U.S. 234, 236, 88 S.Ct. 992, 19

L.Ed.2d 1067 (1968).

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In this case the officers were searching for victims of

a shooting incident. They entered the house and barn

looking for victims, and inadvertently came across

evidence of the operation of a still. No evidence was

presented at the hearing to indicate that the officers’

testimony of the reasons for their conduct should not be

believed. Therefore the Court concludes that the search

and seizure conducted by the county officers were legal.

The Court further finds that the search by the

federal officers was also legal. The Court does not base

its decision on the ground suggested by the government:

that there was insufficient time for the ATF agents to

obtain a warrant. In fact the evidence established that

the ATF agents were called by the county officers at

about 9:00 P.M., and that the magistrate could be

reached until about 11:00 P.M. and was located only fif-

teen or twenty miles away. Furthermore, Federal Agent

Harmon testified that the stills each weighed about 2800

pounds, and that he was not afraid that someone would

walk away with a still. As for smaller items in the house,

the county police had surrounded the area. Therefore,

no emergency existed concerning the speed with which

the federal agents arrived on the scene.

The federal search was legal because it was based

upon a legal search by the county officers. Cr-cial to this

determination are the facts that the county. -~tice called

the federal agents to the scene, and that the federal

search was directly related to the object of the county

search. ;

The Court bases its determination that the federal

search was legal upon the direct precedent established

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by Judge Dyer in United States v. Green, 474 F.2d 1385

(5th Cir. 1973), cert. denied, 414 U.S. 829, 94 S.Ct. 55,

38 L.Ed.2d 63 (1973). While Green was away, a fire

broke out in his apartment. City firemen entered the

apartment to put out the fire, and requested the Fire

Chief to come to the premises to determine the cause of

‘the fire. During his investigation the Fire Chief inadver-

tently discovered counterfeiting plates. The Fire Chief

then called the Secret Service. In response to the call, a

Secret Service agent went to Green’s apartment, and the

Fire Marshall handed him the plates he had discovered.

At no time did either the city or federal authorities seek

to obtain a warrant.

Judge Dyer held that it was not necessary for the

secret service agent to have obtained a warrant before he

entered the apartment even though there was plenty of

time in which to do so, 474 F.2d at 1390. Judge Dyer ex-

plained that the purpose of the Fourth Amendment is to

prevent unauthorized invasions of privacy. However,

once that privacy is lawfully invaded, a subsequent

search of the area already searched constitutes no ad-

ditional invasion of privacy and therefore no violation of

the Fourth Amendment. Judge Dyer’s holding is di-

rectly applicable to the factual situation here:

The purpose of a search warrant is to ensure

judicial authorization, in advance, of intru-

sions into constitutionally protected privacy.

Where a lawful intrusion has already occurred

and a seizure by a State officer has validly

taken place as a result of that intrusion, the in-

vasion of privacy is not increased by an ad-

ditional officer, albeit a federal officer, who is

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expert in identifying the type of contraband

discovered, to enter the premises to confirm the

belief of the State officer and to take custody of

ne evidence. Once the privacy of a dwelling

has been lawfully invaded, to require a second

officer from another law enforcement agency

arriving on the scene of a valid seizure to secure

a warrant before he enters the premises to con-

firm that the seized evidence is contraband and

to take custody of it is just as senseless as re-

quiring an officer to interrupt a lawful search to

stop and procure a warrant for evidence he has

already inadvertently found and seized.

474 F.2d at 1390.

The rationale which justifies the federal search is

that the subsequent intrusion does not significantly in-

crease a preexisting legitimate interference with a

protected interest. United States v. Soriano, 482 F.2d

469, 476 (5th Cir. 1973). Thus the determination that

the subsequent search does not significantly add to the

invasion of privacy caused by the initial search is

crucial. As pointed out in Soriano, this requirement is

met if the successive intrusions are close in time, prac-

tically identical in nature and analytically and factually

separable only because made by two different

sovereigns. 482 F.2d at 476 n.13. The Court finds that all

of these criteria were present in this case.

In United States v. Carney, 356 F.Supp. 855, 858

n.l1 (M.D.Tenn. 1973), the court distinguished its facts

from Green in that in Green the secret service agent en-

tered ‘subsequent to and pursuant to”’ the discovery of

the Fire Marshall. The rationale is that independent

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searches constitute separate and additional invasions of

privacy. However, here as well as in Green, the federal

authorities entered the premises pursuant to a call by

the local authorities, and the search conducted by the

federal agents was directly related to the objects dis-

covered by the county oficers. Therefore, based upon the

authority of United States v. Green, United States v.

Soriano, and United States v. Carney, the Court con-

cludes that the search and seizure conducted by the

federal officers were legal.

The Court has considered all of the evidence

presented at the evidentiary hearing, and has studied all

of the submissions filed by the parties. For the foregoing

reasons, the Court concludes that the searches of both

the county and federal officers were legal, and therefore

the motion to suppress the evidence seized therefrom is

hereby denied.

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CERTIFICATE OF SERVICE

I hereby certify that on this 4th day of September,

1979, three copies of the Petition for Writ of Certiorari

were mailed, postage prepaid, to Solicitor General,

Department of Justice, Washington, D.C., 20530, Coun-

sel for the Respondent. I further certify that all parties

required to be served have been served.

By:

ROBYN GREEN, ESQUIRE

Suite 500, Roberts Building

28 West Flagler Street

Miami, Florida 33130

Counsel for Petitioner

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