Petition — Epp v. New Jersey

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U. i

D

EILE

In THE WAY 238 1980

Supreme Cont of the United Bt

f:

ifs tig RODAK, JR., CLERE

Ocroser Term, 1979

No_29-18 61

ROBERT W. EPP and RAY B. FOSTER,

Petitioners,

VS.

STATE OF NEW JERSEY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPERIOR COURT OF NEW JERSEY,

APPELLATE DIVISION

Burton D. Zener

Counsel for Petitioner, Robert W. Epp

11 North Main Street

Woodsiown, New Jersey 08098

(609) 769-0268

JoHun J. Linpsay

Counsel for Petitioner, Ray B. Foster

49 Cooper Street

Woodbury, New Jersey 08096

(609) 845-4050

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

TABLE OF CONTENTS

Opinions BELOW .........--...0--....

JURISDICTION

QUESTION PRESENTED

CoNSTITUTIONAL Provision INVOLVED ......

STATEMENT OF THE CAsE

REASON FOR GRANTING THE Writ

‘CoNCLUSION

APPENDIX:

A—Opinion of the Superior Court of New Jer-

sey, Appellate Division 2... cece

B—Order of the Supreme Court of New Jer-

sey Denying Certification ...........

Cases Cited

Arkansas v. Sanders, 422 U.S. 573 (1979) ow...

State v. Carpentieri, 168 N.J. Super. 589 (App. Div.

1979) certif. granted 81 N.J. 344 (1979) ooo

State v. Mann, 171 N.J. Super. 173 (App. Div.

1979) .

State v. Pace, 171 N.J. 240 (App. Div. 1979) 0...

State v. Parker, 153 N.J. Super. 481 (App. Div.

1977)

U.S. v. Calandrella, 469 F.2d 173 (6th Cir. 1979) _._...

PAGE

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li TABLE OF CONTENTS

U.S. v. Dien, 609 F.2d 1038 (2nd Cir. 1979) 0.0...

United States v. Schleis, 483 U.S. 905 (1977) on re-

mand 582 F.2d 1166 (8th Cir. 1978) en bane ............

United States Constitution Cited

Fourth Amendment

Statutes Cited

SS) Ee

N.J.S.A. 24:21-19(a.1) ect

N.J.S.A. 24:21-20(a.4)

Rule Cited

N. J. Court Rule R. 3:5-7(d) .

ou

IN THE

Supreme Cot of the United States

Octoser TERM, 1979

No.

>

~~

ROBERT W. EPP and RAY B. FOSTER,

Petitioners,

VS.

STATE OF NEW JERSEY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPERIOR COURT OF NEW JERSEY,

APPELLATE DIVISION

The petitioners, Robert W. Epp and Ray B. Foster,

pray that a writ of certiorari issue to review the opinion

and judgment of the Superior Court, Appellate Division

of the State of New Jersey on December 14, 1979.

Opinions Below

The opinion of the Superior Court, Appellate Division,

unreported, appears at Appendix A. The Supreme Court

of the State of New Jersey denied a petition of certifica-

tion on February 26, 1980. Appendix B.

Jurisdiction

The opinion of the Superior Court, Appellate Division,

of the State of New Jersey was entered on December 14,

1979. <A petition for certification of said opinion was

denied by the Supreme Court of the State of New Jersey

on February 26, 1980.

This petition for certiorari was filed less than 90 days

from the date aforesaid. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1257(3).

Question Presented

The defendants vehicle, was stopped and arrested by

a State Police Officer while travelling on the New Jersey

Turnpike. Subsequent to their arrest, the police officer,

without a warrant and absent exigent circumstances, seized

and opened the closed luggage of Defendants contained in

the car. The question thereby arising is:

1. Does the rationale of Arkansas v. Sanders, 422 U.S.

573 (1979) apply retroactively thereby rendering the in-

stant warrantless search and seizure illegal?

Constitutional Provision Involved

Constitution of the United States, Amendment IV:

“The right of the people to be secure in their

persons, houses, papers and effects, against unrea-

sonable searches and seizures, shall not be violated,

and no warrant shall issue but upon probable cause,

supported by oath or affirmation, and particularly

describing the place to be searched, and the persons

or things to be seized.

3

Statement of Facts

On February 4, 1977, the defendants were travelling

on the New Jersey Turnpike when they were stopped by

a Trooper of the New Jersey State Police for an alleged

defective brake light. Upon stopping the vehicle and

examining the valid driver’s license of defendant Epp, the

Trooper and defendant EX\pp went to the rear of the vehicle

and engaged in conversation respecting the defective brake

light. At said time the officer requested defendant Epp

to open the trunk, which he did.

Upon the opening of the trunk, the Officer testified he

smelled a strong odor of unburned marijuana. Accord-

ing to the Trooper’s testimony, within the trunk were four

(4) suitcases and two duffel bags. The Trooper testified

that all the articles of luggage were closed and the suit-

cases were locked, Subsequently, the Trooper observed a

green bag sticking out of one of the duffel bags which

he pressed against with his hand and heard the crushing

of stalks. He then inserted his finger through the bag and

pulled out suspected reside of marijuana.

The Trooper then arrested, handcuffed and placed the

defendants in the police car. He then searched the glove

compartment of the defendants’ vehicle and found the keys

to the suitcases located in the trunk. A search of the

closed luggage was made at the scene which revealed a

quantity of marijuana therein. The search of the luggage

was made on the New Jersey Turnpike, after defendants

were placed under arrest and without a warrant.

The parties were subsequently charged with possession

of marijuana and possession of same with intent to dis-

tribute contrary to N.J.S.A. 24:21-20(a.4) and N.J.S.A.

24 :21-19(a.1).

Procedural History

Subsequent to their arrest, the defendants were in-

dicted for the foregoing: violations. Upon entry of not

guilty pleas, timely motions to suppress the evidence were

filed alleging that said searches were violative of the de-

fendants Federal Constitutional rights. Following an evi-

dential hearing on the motions to suppress, the trial judge

issued an order denying said motions. At said hearing

defense counsel expressly argued the same rationale which

later appeared in the rulings of Arkansas v. Sanders, 422

U.S. 573 (1979) in support of their request to suppress.

Upon a hearing for reconsideration held on January 19,

1979, the trial court affirmed its prior decision.

On January 23, 1979, the defendants, pursuant to N. J.

Court Rules R. 3:5-7(d), entered pleas of guilty to the

charges while reserving their right to appeal denial of

their motions to suppress. The defendants were sentenced

to imprisonment for 364 days in the County jail, four

months to be served with balance suspended; three years

probation; and a fine in the sum of $7,500 payable over the

probationary period.

A timely: appeal was taken by the defendants to the

Superior Court, Appellate Division of the State of New

Jersey which affirmed the judgment of the trial court on

December 14, 1979. The Appellate Division found the

ease to be within the rationale of Arkansas v. Sanders,

422 U.S. 573 (1979) but would not apply the decision

retroactively. If it were so applied, the Appellate Court

expressly stated the search was illegal.

Review of said decision was requested by the defend-

ants to the State Supreme Court of New Jersey which

denied a Petition for Certification to the Superior Court,

Appellate Division, on February 26, 1980. Appendix B.

Reasons for Granting the Writ

The decision of the Superior Court, Appellate Division

is contrary to the principles of the United States Consti-

tution, Amendment IV as expressed in Arkansas v. Sand-

ers, 422 U.S. 573 (1979).

In Arkansas v. Sanders, 422 U.S. 573 (1979) this Court

held that in the absence of exigent circumstances, police

are required to obtain a Warrant before searching lug-

gage taken from an automobile which had been stopped

and searched for contraband. The Superior Court, Ap-

pellate Division (Appendix A) expressly held that if

Sanders is applicable the search and seizure herein was

illegal. The Court did not deem it applicable solely be-

cause of its opinion on the non-retroactive nature it gave

to the Sanders opinion, supra.

Conflicting opinions exist throughout the country as

well as the State of New Jersey with regard to the

Arkansas v. Sanders, 422 U.S. 537 (1979) opinion. See

U.S. v. Schleis, 433 U.S. 905 (1977), on remand, 582 F.2d

1166 (Sth Cir. 1978) (en bane); U.S. v. Calandrilla, 469

F.2d 1973 (6th Cir. 1979); U.S. v. Dien, 609 F.2d 1038

(2nd Cir. 1979); Compare State v. Pace, 171 N.J. Super.

240 (App. Div. 1979); State v. Parker, 153 N.-. Super.

481 (App. Div. 1977); State v. Carpentieri, 168 N.J.

Super. 589 (App. Div. 1979), certif. granted 81 N.J. 344

(1979); State v. Mann, 171 N.J. Super. 173 (App. Div.

1979).

The most recent opinion in U.S. v. Dien, 609 F.2d 1038

(2nd Cir. 1979) correctly describes the Court’s holding

in Arkansas v. Sanders, 422 U.S. 537 (1979) as merely

a clarification and not a change of Fourth Amendment

principles.

At the time of the filing of this petition the defendants

are in custody serving their sentence solely in consequence

of conflicting case law pertaining to the retroactive effect

of Arkansas v. Sanders, 422 U.S. 537 (1979). It would

be grossly unfair to deny these defendants the benefit of

the Sanders ruling since the arguments made by defense

counsel at the initial motion to suppress hearing and

predating the Sanders opinion were identical to the U.S.

Supreme Court ruling of Arkansas v. Sanders, 422 U.S.

537 (1979).

By the ruling of the Superior Court, Appellate Divi-

sion, the narrow question is presented herein: “If Sanders

is deemed applicable, this search is illegal” Appendix

A p. 3. <A ruling in this matter will eliminate the in-

creasing conflict of case law among the Federal and State

Judiciary, and the influx of litigation relating to same.

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment and opinion of the Superior Court,

Appellate Division of the State of New Jersey.

Respectfully submitted,

Burton D. ZEHNER

Counsel for Petitioner, Robert W. Epp

11 North Main Street

Woodstown, New Jersey 08098

(609) 769-0268

JoHN J. Linpsay

Counsel for Petitioner, Ray B. Foster

49 Cooper Street

Woodbury, New Jersey 08096

(609) 845-4050

APPENDIX A

Opinion of the Superior Court of New Jersey,

Appellate Division

(Filed—December 14, 1979)

Superior Court or New JrErsey

APPELLATE DIVISION

A-2245-78

»™

_

Strate or New JERSEY,

Plaintiff-Respondent,

Vv.

Ray B. Foster and Roserr W. Epp,

Defendants-Appellants.

?

Argued: December 4, 1979—Decided: Dee 14, 1979

Before Judges Kole and Lane.

On appeal from Superior Court, Law Division, Salem

County.

Mr. Thomas H. Ward argued the cause for appellant,

Ray B. Foster (Messrs. Boakes, Lindsay and Smith,

attorneys).

[la]

2a

Appendix A

Mr. Daniel A. Zehner argued the cause for appellant

Robert W. Epp (Messrs. Zehner & Zehner, attorneys).

Mr. Ronald V. Smith, Deputy Attorney General, ar-

gued the cause for respondent (Mr. John J. Degnan,

Attorney General of New Jersey, attorney).

Per Curiam

Defendants pleaded guilty to unlawful possession . of

marijuana and possession thereof with intent to distribute.

They appeal solely on the ground that their motion to sup-

press evidence should have been granted by the trial

judge, since the police officer who had stopped the car in.

which they were travelling unconstitutionally searched lug-

gage contained in the trunk of defendant Epp’s automobile

without a warrant.

From our review of the proofs at the hearing on the

motion to suppress, we are satisfied that the findings of

fact by the trial judge are supported by sufficient eredi-

ble evidence and are therefore unassailable. We have fur-

ter concluded that, predicated on such findings, the judge

properly held that the search and seizure was constitu-

tional.

Defendants contend that the police officer’s claim that he

smelled the odor of unburned marijuana did not consti-

tute probable cause for the search of the automobile and

that, in any event, there were no exigent circumstances

justifying the warrantless search of the suitcases and

duffel bags contained in the trunk of the automobile.

This trained police officer’s detection of the strong odor

of unburned marijuana emanating from the automobile and

particularly from the trunk thereof, as well as his observa-

tion of cigarette papers in the glove compartment, consti-

3a

Appendix A

tuted sufficient probable cause for him to search the vehi-

cle, including the trunk, for marijuana. He first detected

the strong smell of marijuana when the right front door

of Epp’s automobile was opened but could not pinpoint

the source thereof even by a visual inspection of the vehi-

cle’s interior. He thus reasonably could have concluded,

as he did, that the odor came from the trunk. See, State

v. Harrison, 111 Ariz. 508, 5383 P. 2d 1143 (Sup. Ct. 1975);

People v. Cook, 13 Cal. 3d 663, 119 Cal. Rptr. 500, 532 P.

2d 148 (Sup. Ct. 1975), cert. den. 423 U.S. 870, 96 S.Ct.

135, 46 L.Ed. 2d 100 (1975); Ford v. State, 37 Md. App.

373, 377 A. 2d 577 (Ct. Spee. App. 1977). See also, United

States v. Hosch, 577 F. 2d 963 (5 Cir. 1978); United

States v. Thompson, 558 F. 2d 522, 524 (9 Cir. 1977), cert.

den. sub. nom. Reeve v. United States, 485 U.S. 914, 98

S.Ct. 1466, 55 L.Ed. 2d 504 (1978). Cf. Johnson v. United

States, 333 U.S. 10, 13 (1948) in which the court indi-

cated that detection of opium odors by trained individuals

could constitute probable cause. Contrast the fact situ-

ation in State v. Patino, 163 N.J.Super. 116, 122-123 (App.

Div. 1978), certif. granted 79 N.J. 477 (1979).

There were also sufficient exigent circumstances here

under the then law justifying the warrantless search of

the suiteases contained in the trunk of Epp’s automobile.

The thrust of defendant’s argument on this issue is that

since defendants had been arrested, handcuffed and placed

in the patrol car prior to the time the luggage was actu-

aly opened, the luggage and its contents were under the

exclusive dominion and control of the arresting officer

prior to the search thereof. Thus, it is said, there was no

exigency which would justify the subsequent warrantless

search.

We agree with tne trial judge that United States v.

Chadwick, 433 U.S. 1 (1977) is inapplicable, since under

4a

Appendix A

the facts here the search of the luggage came within the

automobile exception to the warrant requirement. In Chad-

wick, the court did not address the issue of the propriety

of searching luggage in a moving or readily movable auto-

mobile, noting that the government did not contend “that

the footlocker’s brief contact with Chadwick’s car made

this an automobile search * * *.” 433 U.S. at 11. Chad-

wick simply considered the privacy interests relating to

the search of a footlocker, but not in connection with the

automobile exception to the warrant requirement. In Chad-

wick the defendants were arrested after the footlocker had

been placed into the trunk of a waiting automobile, and

while the trunk of the car was still open and the car engine

had not even been started. In the present case the auto-

mobile itself was used to transport the suitcases contain-

ing the contraband. See, State v. Gray, 59 N.J. 563, 568-

569 (1971); State v. McCarthy, 130 N.J.Super. 540, 543-

049 (App. Div. 1974). See also, State v. Murray, 151 NJ.

Super. 300, 308-309 (App. Div.) certif. den. 75 N.J. 541

(1977).

Recently, however, in Arkansas v. Sanders, —— U.S.

——,, 61 L.Ed. 2d 235 (1979) the Supreme Court did hold

that once the police had the luggage exclusively within

their control, as here, even though it was in an automobile

that had been transporting it, the automobile exception

did not apply and a warrant was required before the

luggage could be searched. It found no justification for

the extension of the automobile exception to a warrant-

less search of the contents of personal luggage merely

because it was located in an automobile lawfully stopped

by the police. If Sanders is deemed applicable to this

case, the search and seizure here was unlawful. There is

no proof that the police officer feared destruction or re-

moval of evidence from the luggage if a warrant were

da

Appendix A

first obtained; nor do we find persuasive the State’s con-

tention that defendants lacked an expectation of privacy

in the luggage since a plastic bag protruded from one of

the suitcases. The record does not indicate that the police

officer could actually see through the plastic bag or was

aware that there was marijuana in it until he actually

squeezed the bag.

We hold, however, that, essentially for the reasons ex-

pressed in State v. Howcry, 80 N.J. 563 (1979), Sanders

is not retroactive to a search and seizure which occurred

prior to the date of its determination. The search here

occurred in February 1977. Compare, State v. Pace, ——

N.J.Super. (App. Div. 1979) where the matter of re-

troactivity of Sanders was not discussed and apparently

not raised.

We note that the police officer here was alone and rea-

sonably believed that, under the then existing law, given

probable cause to search an automobile on the highway

even though the defendants were under arrest, exigent cir-

cumstances justified the warrantless search of the suit-

cases here involved. See, State v. Gray, supra; State v.

McCarthy, swpra. See also, State v. Parker, 153 N.J.Super.

491, 487 (App. Div. 1977).

We find no indication that our courts anticipated the

holding in Sanders. State v. DeLorenzo, 166 N.J.Super.

483 (App. Div. 1979) and State v. Parker, supra, relied on

by defendants, deal with the search of bags or luggage al-

ready secured in police facilities, rather than the search

of luggage stored in a car stopped on the highway. They

are thus distinguishable from Sanders.

Affirmed.

A True Copy

EvizaBetH McLAuGHuin

Clerk

6a

APPENDIX B

Order of the Supreme Court of New Jersey

Denying Certification

(Filed—February 27, 1980)

SupreME Court or New JERSEY

C-463 Sepremper Term 1979

..

_—

State or New Jersey,

Plainciff-Respondent,

Vs.

Ray B. Foster and Rosert W. Epp,

Defendants-Petitioners.

To the Appellate Division, Superior Court:

A petition for certification of the judgment in A-2245-

78 having been submitted to this Court, and the Court

having considered the same;

It is Orvrerep that the petition for certification is denied

with costs.

Witness, the Honorable Robert N. Wilentz, Chief Jus-

tice, at Trenton, this 26th day of February, 1980.

A True Copy

STEPHEN W. TowNsEND

Clerk