Opposition — Goings v. New Jersey

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7 Guoreme Court, U.@

——BE TE D

IN THE | JUN 28 1980

Supreme Court of the United SwRS roan sp, CLERA

Octoser TERM, 1979

No. 79-1860

CLARENCE H. GOINGS,

Petitioner,

Vv.

STATE OF NEW JERSEY,

Respondent.

On Petition for a Writ of Certiorari to the Superior

Court of New Jersey, Appellate Division

RESPONDENT’S BRIEF IN OPPOSITION

JoHn J. DreGNaAN,

Attorney General of New Jersey,

Attorney for Plaintiff-Respondent,

State of New Jersey,

State House Annex,

Trenton, New Jersey 08625.

JoHun DeCicco,

Assistant Attorney General,

Division of Criminal Justice,

Appellate Section,

13 Roszel Road,

Princeton, New Jersey 08540,

609-452-9500,

Of Counsel.

Anne C. Paskow,

Deputy Attorney General,

On the Brief.

Adams Press Corp., 5 Commerce Street, Newark, N. J. 07102—(201) 623-8611

TABLE OF CONTENTS

Opinions BeLow

QUESTION PRESENTED

STATEMENT OF THE CASE 20.cccccccccecccecccecccceccocencccoooceee

Reasons For DENYING THE Writ—The facts of rec-

ord do not legitimately permit resolution of the

issue formulated by petitioner .........

A. The inventory search was properly found

constitutional under the holding in South

Dakota v. Opperman ..................

B. The inventory procedure was routine within

the meaning of South Dakota v. Opperman

CoNncLUSION

Cases Cited

Arkansas v. Sanders, —— U.S. ——, 99 S. Ct. 2586,

— L. Ed. 2d — (1979)

Cady v. Dombrowski, 413 U.S. 433, 93 S. Ct. 2523, 37

L. Ed. 2d 706 (1973)

Cooper v. California, 386 U.S. 58, 87 S. Ct. 788, 17

L. Ed. 2d 730 (1967) ..........

Denson v. State, 128 Ga. App. 456, 197 S.E. 2d 156

(Ct. App. 1973)

Ker v. California, 374 U.S. 23, 83 S. Ct. 1623, 10 L.

Kd. 2d 726 (1963)

Mozzetti v. U.S. Superior Court of Sacramento

County, 94 Cal. Rptr. 412, 4 Cal. 3d 699, 484 P. 2d

CRUEL, MIMa, MOPED dncealechgishisesceuncisnniebdnacincttaracnd mcs :

ii TABLE OF CONTENTS

PAGE

One 1965 Econoline, Ete., In re, 109 Ariz. 433, 511

P. 2d 168 (Sup. Ct. 1973) 8

South Dakota v. Opperman, 428 U.S. 364, 96 S. Ct.

3092, 49 L. Ed. 2d 1000 (1976) ......................-..- 6, 7, 10-12

State v. Keller, 510 P. 2d 568 (Sup. Ct. Ore. 1972) 8

State v. Mangold, —— N.J. _ A. 2d ——

(Sup. Ct. May 19, 1980) 11

State v. McDougal, 68 Wis. 2d 399, 228 N.W. 2d 671

(Sup. Ct. 1975) ..... 8

State v. Roberson, 156 N.J. Super. 551, 384 A. 2d

195 (App. Div. 1978), certif. den. 77 N.J. 487, 391

A. 2d 502 (Sup. Ct. 1978) 7

State v. Walker, 119 Ariz. 121, 579 P. 2d 1091 (Sup.

Ct. 1978) 8

United States v. Chadwick, 433 U.S. 1, 97 S. Ct. 2476

53 L. Ed. 2d 538 (1977) ...... ; 9

United States v. Edwards, 557 F. 2d 883 (5th Cir.

1978), cert. den. —— U.S. ——, 99 S. Ct. 458

— (1978) 7

Williams v. State, 557 P. 2d 135 (Sup. Ct. Wyo.

1976) 8

United States Constitution Cited

Se III. ncinciciscitnintntciltansctiaitsdb atacand, 2,11

Statutes Cited

es ee eS en

N.J.S.A. 2A :151-41

IN THE

Supreme Court of the United States

Octoser TERM, 1979

No. 79-1860

CLARENCE H. GOINGS,

Petitioner,

STATE OF NEW JERSEY,

Respondent.

On Petition for a Writ of Certiorari to the Superior

Court of New Jersey, Appellate Division

» =

—_-

RESPONDENT’S BRIEF IN OPPOSITION

The respondent State of New Jersey respectfully re-

quests that this Court deny the petition for a writ of

certiorari, seeking review of the judgment of the Superior

Court of New Jersey, Appellate Division, in this case.

Opinions Below

The orders of the New Jersey Supreme Court deny-

ing petitioner’s petition for certification and appeal are

reported at —— N.J. ’ A.2d (February

26, 1980) and appear as petitioner’s appendix B, pages

6a to 7a. The opinion of the Superior Court of New

Jersey, Appellate Division, not reported, appears as

petitioner’s appendix A, pages la to 5a. The Superior

Court of New Jersey, Law Division, Bergen County,

did not issue a written opinion; its oral ruling denying

petitioner’s motion to suppress evidence appears in the

transcript of September 12, 1978 at pages 140 to 151.

Question Presented

Whether the inventory exception to the Fourth Amend-

ment’s search warrant requirement extends to the search

of a closed shoulder bag found within a vehicle’s closed

trunk where the impounding of the vehicle is lawful

and the nonarrested driver has specifically declined an

offer to remove the shoulder bag, preferring instead to

leave it with the impounded vehicle.

Statement of the Case

Bergen County Indictment No. S-0621-78, filed April

26, 1978, charged petitioner Clarence H. Goings with

possession of a pistol without the requisite permit,

N.J.S.A. 2A:151-41 (count one) and attempted bribery,

N.J.S.A. 2A:85-1 (count two). Prior to trial petitioner

moved to suppress a pistol, leather shoulder bag and

currency in the amount of $20,010 which were seized

from his automobile on the occasion of the offenses re-

ferred to in the indictment. An evidentiary hearing was

conducted on September 11 and 12, 1978, in the Superior

Court of New Jersey, Law Division, Bergen County, be-

fore the Honorable Morris Malech, Judge, Superior Court.

The relevant facts elicited at that suppression hearing

demonstrated the following:

While patrolling in an unmarked vehicle at approxi-

mately 2:10 a.m. on December 7, 1977, Detectives John

Schmidig and Mare Fenech of the Bergen County Police

Department observed a brown Cadillac traveling at an

excessive rate of speed. Upon following the Cadillae,

driven by petitioner Clarence H. Goings, its sole oc-

cupant, for about one mile, they determined it to be

travelling 70 miles per hour in a 50 mile per hour zone.

Thereupon, the detectives activated their red flashing

lights and pulled over petitioner’s vehicle for the pur-

pose of issuing a speeding summons.

Detective Schmidig approached the driver’s side of the

vehicle and requested petitioner’s credentials while De-

tective Fenech stood by the passenger's side, Although

petitioner tendered a valid driver’s license and vehicle

registration showing ownership of the vehicle by Vivian

Peterson, petitioner’s mother, the temporary insurance

identification card he produced had expired three months

earlier and thus was invalid. In response to the officer’s

inquiry, petitioner replied that the car belonged to his

aunt, and he did not know whether it was insured. De-

tective Schmidig then advised petitioner that the vehicle

would be impounded and towed because it lacked the requi-

site insurance, and that summons for the speeding and

insurance card violations would be issued. Petitioner

was not placed under arrest.

At that point the officers conducted a routine inventory

of the vehicle. Detective Fenech, using a flashlight, visu-

ally inspected the interior portion of the vehicle to check

for valuables. Solely for this purpose he checked the

seats, glove compartment and floor area, discovering

nothing remarkable. Meanwhile petitioner accompanied

Detective Schmidig to the rear of the automobile and

opened the trunk at the officer’s direction. In the trunk

there was a brown leather shoulder bag which had two

straps but no locks. One of the straps was fastened; the

other one was not.

Petitioner was asked what the bag contained, to which

he replied “personal things.” Rather than opening it,

Detective Schmidig specifically asked petitioner if he

wanted to remove the bag from the car. Petitioner, how-

ever, rejected this offer and expressed his desire that

the bag be left with the vehicle. Consequently, the de-

tective, who was concerned primarily with valuables be-

ing left in the automobile, opened the bag to check and

inventory its contents. The only reason the bag was

opened was to inventory the personal items it contained

since it was tobe left in the vehicle in accordance with

petitioner’s preference. In the bag, Detective Schmidig

unexpectedly discovered an extraordinarily large sum of

currency (described by petitioner as $10,000 but subse-

quently determined to be $20,010) wrapped in a brown

paper bag within a plastic bag.

Upon finding this extraordinary amount of money,

Detective Schmidig notified Detective Fenech, who by this

time had concluded his brief inspection of the car’s in-

terior, to conduct a more thorough search, a “double

check,” inside the vehicle to insure that no other valuables

were present. Thereupon, as a result of these unusual

circumstances, Detective Fenech conducted a more care-

ful search of the car’s interior, Specifically, he rechecked

under the seats and ran his hand into the spring areas.

He also checked under the dashboard by running his

fingers along the lip by the steering column. Both of-

ficers testified that money and other items had been

found under dashboards in the past, and it was this

memory coupled with the discovery of the large amount

of money in the trunk that prompted Detective Fenech

to check in this area, Behind the dashboard lip, the

detective discovered an unregistered, fully loaded .380

caliber automatic pistol.

Upon its discovery, petitioner was arrested for pos-

session of the pistol and advised of his rights. The B & K

Towing Company, the private contractor utilized by the

Bergen County Police Department, was called and its

wrecker arrived to remove the impounded automobile to

its lot. Petitioner was transported to police headquarters

in the patrol vehicle. Enroute, the bribery offense was

committed.

At the suppression hearing, it was also adduced that

within the Bergen County Police Department, there exists

a written order requiring that an inventory be routinely

conducted for all vehicles which are impounded. Such

standard inventory consists of a survey of a vehicle’s

exterior to check for damage, and its interior, including

the trunk, to locate and itemize valuables. A standard

report form or “inventory sheet” is completed with re-

spect to each inventory inspection. At headquarters,

the officers in the instant matter prepared their report

and inventory sheet, and the two traffic summons were

issued to petitioner. Items which were left in the vehicle

were included on the inventory sheet; items which were

removed from the automobile (the bag, the $20,010 and

the unregistered weapon) were listed on a separate “evi-

dence list” or “property sheet.”

At the conclusion of the hearing, the court denied peti-

tioner’s motion to suppress the items taken from the auto-

mobile. Thereafter, following a short recess, petitioner

entered a retraxit guilty plea to both counts of the indict-

ment pursuant to a negotiated plea arrangement. On

November 9, 1978, Judge Malech sentenced petitioner in

accordance with the plea bargain to concurrent indeter-

minate terms to three years at the Youth Reception and

Correction Center.

Petitioner appealed the denial of his suppression mo-

tion and conviction to the Superior Court of New Jersey,

Appellate Division (Fritz, Kole, Lane, JJ.A.D.). That court

affirmed the judgment below in a written opinion dated

December 7, 1979. (Petitioner’s appendix A, pages la to

5a). Thereafter, the New Jersey Supreme Court denied

petitioner’s petition for certification and appeal on Feb-

ruary 26, 1980. (Petitioner’s appendix B, pages 6a to 7a).

The instant petition for a writ of certiorari to the Superior

Court of New Jersey, Appellate Division, follows:

REASONS FOR DENYING THE WRIT

The facts of record do not legitimately permit reso-

lution of the issue formulated by petitioner.

A. The inventory search was properly found constitutional

under the holding in South Dakota v. Opperman.

As recognized in Ker v. California, 374 U.S. 23, 83

S. Ct. 1623, 10 L. Ed. 2d 726 (1963), the states are not

precluded from developing workable rules governing

searches and seizures to meet the practical demands of

the law enforcement community provided those rules do

not violate the federal constitutional proscription against

unreasonable searches and seizures. It is submitted that

the State of New Jersey appropriately determined the

instant search to fall within the inventory rationale ap-

proved in South Dakota v. Opperman, 428 U.S. 364, 96

S. Ct. 3092, 49 L. Ed. 2d 1000 (1976). Moreover, the

legitimate facts of record do not permit the proper formu-

lation or resolution of the issue presented by petitioner

as to whether an inventory search into closed containers

within the trunk of an automobile is constitutionally valid.

The Court has ruled it constitutionally permissible for

the police to routinely inventory the contents of a vehicle

which they have lawfully taken into custody in South

Dakota v. Opperman, supra.* As articulated, such an

inventory procedure serves three distinct needs: (1) it

protects the owner's property while it remains in police

custody, (2) it protects the police against claims or dis-

putes over lost or stolen property, and (3) it protects

the police from potential danger. Jd. at 428 U.S. 369.

Such standard inventories may properly include an ex-

amination of the customary places where documents are

kept and valuables are temporarily stored, such as the

glove compartment, See Opperman v. South Dakota, or

the trunk. See Cady v. Dombrowski, 413 U.S. 433, 93

S. Ct. 2523, 37 L. Ed. 2d 706 (1973); United States v.

Edwards, 557 F. 2d 883 (5th Cir. 1978), cert. den.

US. ——, 99 S. Ct. 458 (1978). Certainly, the reason-

able and routine entry into the trunk in this matter falls

squarely within the inventory inspection endorsed by this

Court.

Petitioner claims, however, that intrusion into a sealed

container, in this case an unlocked leather shoulder bag

with one of its two straps fastened, was overbroad. This

pure question of whether the scope of an inventory search

extends into a closed container found within an automo-

bile’s trunk is not legitimately presented by the facts

*The impoundment in this case was clearly valid under New

Jersey law as the automobile lacked the requisite insurance. See

State v. Roberson, 156 N.J. Super. 551, 384 A. 2d 195 (App. Div.

1978), certif. den. 77 N.J. 487, 391 A. 2d 502 (Sup. Ct. 1978).

Moreover, petitioner stipulated to the validity of the impoundment

in both the trial and appellate courts.

of record.* This is so because petitioner herein was speci-

fically offered the opportunity to remove the unopened

shoulder bag intact from the vehicle, and it was only

when he rejected this offer and directed that the bag

remain with the automobile that an inventory of its con-

tents became necessary. Thus it was petitioner’s own

actions which precipitated and necessitated the inventory;

he could easily have precluded any intrusion into his bag

by accepting its custody when it was proffered, unopened,

to him. Once he rejected the choice of removing his

bag unopened, it was entirely appropriate for the de-

tective to inventory the contents, not merely for peti-

tioner’s benefit, but to safeguard the interests of the police

and towing company as well.

* The State notes, however, that there is a split among juris-

dictions as to whether or not the scope of an inventory search

must be arbitrarily limited only to those items in plain view. Some

jurisdictions so limit an inventory. See e.g. State v. McDougal,

68 Wis. 2d 399, 228 N.W. 2d 671 (Sup. Ct. 1975) (search of

locked suitcases in trunk invalidated) ; State v. Keller, 510 P. 2d

568 (Sup. Ct. Ore. 1972) (search of closed and wire-tied fishing

tackle box invalidated) ; Mozzetti v. U.S. Superior Court of Sacra-

mento County, 94 Cal. Rptr. 412, 4 Cal. 3d 699, 484 P. 2d 84

(Sup. Ct. 1971) (search of unlocked suitcase invalidated). Others,

however, have rejected this plain view limitation. See e.g. State

v. Walker, 119 Ariz. 121, 579 P. 2d 1091 (Sup. Ct. 1978) (in-

ventory search rationale was an alternate theory sustaining the

search of an unlocked suitcase in a locked trunk); Jn re One 1965

Econoline, Etc., 109 Ariz. 433, 511 P. 2d 168 (Sup. Ct. 1973)

(inventory search of small suitcase and shaving satchel reasonable) ;

Williams v. State, 557 P. 2d 135 (Sup. Ct. Wyo. 1976) (inventory

of a duffel bag found in a locked trunk when screwdriver used

to open trunk was legitimate); Denson v. State, 128 Ga. App.

456, 197 S.E. 2d 156 (Ct. App. 1973) (valid inventory revealed

heroin wrapped in tin foil within an envelope in a bank folder

containing other items).

]

Petitioner further seeks to implicate the inventory of

the shoulder bag under this Court’s recent holdings in

Arkansas v. Sanders, —— U.S. ——, 99 S. Ct. 2586,

L. Ed. 24 —— (1979), and United States v. Chadwick,

433 U.S. 1, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977).

Both of those cases dealt with warrantless probable cause

searches, however, and not with inventory searches. The

underlying rationale of those cases is thus totally inapplic-

able when analyzing an inventory procedure. As noted

in Chadwick, in a noncriminal inventory search, probable

cause to search is irrelevant and a warrant is not re-

quired. The constitutional reasonableness of an inventory

search is determined on other bases. United States v.

Chadwick, supra at 433 U.S. 10, n.5.

If petitioner is relying on these decisions for the pro-

position that certain “expectations of privacy” attended

his shoulder bag, his reliance is not appropriately sup-

ported by the factual record presented. The record makes

clear that petitioner exhibited no expectation of privacy

in the shoulder bag whatsoever. Despite his claim that

the detective did not offer him an opportunity to re-

move the bag (a factual claim resolved against petitioner

by the State courts), by his own admission at the sup-

pression hearing he indicated that in fact he had no ob-

jection to the inventory procedure and the inspection of

the bag:

Q. What did you want done with the bag at

that point that the officer was holding the bag?

A. [Petitioner] He could have gave it to me if

he wanted to. If he would have given it to me

I would have kept it. I would have opened it and

showed him what was in it if he wanted to know.

(transcript of September 12, 1978, p. 109-7 to 12,

emphasis supplied).

The fundamental inquiry in any search or seizure, of

course, is whether it is reasonable under all the circum-

stances. See Cooper v. California, 386 U.S. 58, 87 S. Ct.

788, 17 L. Ed. 2d 730 (1967). Although Detective Fenech

had concluded his brief visual inspection of the seats,

glove compartment and floor area by the time Detective

Schmidig had found the $20,000 in the shoulder bag, the

unusual discovery of such a considerable sum in a place

where it would not ordinarily be kept certainly and rea-

sonably suggested that a more careful inspection was essen-

tial to insure that no other valuables were secreted in

the vehicle. The subsequent recheck of the interior, while

more thorough, was but minimally intrusive. Specific-

ally, Detective Fenech now ran his hands under the seats

and under the dashboard, where the loaded weapon was

discovered. The inspection remained an inventory pro-

cedure, however, and was not “metamorphasized” into

a warrantless probable cause search. Both officers testi-

fied that money and other items had been found under

the dashboard in the past. Thus while this area might

not always be within the scope of every ordinary in-

ventory situation, in the instant matter, when the unex-

pected discovery of the large sum of money triggered

the memory of the dashboard area concealing money and

other items in the past, the officers were justified by the

situation confronting them in checking this area to locate

and itemize valuables. The State maintains that the New

Jersey courts correctly determined the instant procedures

were both reasonable under the peculiar facts of this

case and constitutionally authorized under the inventory

rationale of South Dakota v. Opperman. As such, there

is no need for this Court to grant certiorari to address

a manufactured issue concerning whether the scope of an

inventory search extends to a closed container within the

trunk of an automobile.

Moreover, petitioner’s application would seem to sug-

gest that the state courts of New Jersey are either un-

able or unwilling to deal with the issue of inventory

searches and the limitation of unreasonable, unconstitu-

tional inventory procedures. Such is not the case. This

State is ever vigilant in this area, and most recently has

addressed the very issue of the permissible undertaking

of an inventory inspection following lawful impoundment

in State v. Mangold, N.J. . A. 2d —— (Sup.

Ct. May 19, 1980). In fact, Mangold may very well im-

pose a more restrictive criterion than mandated by the

federal Constitution, since the Supreme Court of New

Jersey has ruled that law enforcement officials must af-

ford the owner or permissive operator the opportunity

to remove or make other arrangements for his posses-

sions prior to the undertaking of an inventory of a law-

fully impounded vehicle. Consequently, for the addi-

tional reasons that the State of New Jersey is vigorously

protecting those rights guaranteed by the Fourth Amend-

ment, we submit that the petition for a writ of certiorari

is not warranted and should be denied.

B. The inventory procedure was routine within the mean-

ing of South Dakota v. Opperman.

Within the Bergen County Police Department, there is

a written order requiring that an inventory be routinely

conducted for all vehicles which are impounded. Such

standard inventory consists of a survey of the vehicle’s

exterior to check for damage, and its interior, including

the trunk, to locate and itemize valuabes. <A standard

report or “inventory sheet” is completed with respect to

each inventory inspection.

Petitioner urges that the absence of more specific criteria

defining the precise manner and scope of such an inven-

tory inspection renders the instant inventory procedure

constitutionally infirm. Contrary to his argument, how-

ever, there is no requirement that instructions or pro-

cedures more detailed than those existing in Bergen

County be promulgated by the local law enforcement

agency to demonstrate that an inventory search is rou-

tine, in accord with standard procedure and thus con-

stitutionally valid. The State submits that the inven-

tory procedure herein, which fully comports with the one

described and approved in South Dakota v. Opperman,

supra, at 428 U.S. 380 n.6, 384 n.11 (Powell, J., concur-

ring), and which was required with respect to all im-

pounded vehicles was “routine.” The police officers had

no discretion at all with respect to which vehicles to

inventory, and the interior and trunk portions of the

vehicle were standard areas to be covered. Beyond that,

it would be impossible to refine the precise limits of such

an inspection, since the unique circumstances of an in-

dividual case might properly require a check of a par-

ticular area not necessarily involved in another situation.

Naturally, of course, an officer’s discretion is not absolute,

and judicial review is always an available remedy for

unreasonable actions.

CONCLUSION

For the reasons set forth herein, it is respectfully

urged that the petition for a writ of certiorari should

be denied.

Respectfully submitted,

JoHN J. DEGNAN,