Petition — Colorado v. Bannister

Supreme Court brief1980

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FILED

79-1901 JUN 2 4980

ICHAEL RODAK, JR., CLERR

IN THE

SUPREME COURT OF THE UNITED STATES

THE PEOPLE OF THE )

STATE OF COLORADO )

Plaintiff-Petitioner )

) PETITION

) FOR

) WRIT OF

PETER RODNEY BANNISTER ) CERTIORARI

Defendant-Respondent. )

VS.

PETITION FOR CERTIORARI

FROM JUDGMENT OF

COLORADO SUPREME COURT

ROBERT L. RUSSEL

District Attorney

THOMAS A. BARNES, JR.

Deputy District Attorney

27 East Vermijo, Suite 2N

Colorado Springs, CO 80903

Telephone: (303)° 471-5595

Attorneys for Plaintiff-

Petitioner

ROBERT M. MOYERS, Attorney for

Defendant-Respondent

303 South Cascade

Colorado Springs, CO 80903

Telephone: (303) 636-5241

IN THE SUPREME COURT

THE UNITED STATES

THE PEOPLE OF THE

STATE OF COLORADO,

Plaintiff-Petitioner

APPEARANCE

)

) ENTRY

vs. )

)

PETER RODNEY BANNISTER, )

Defendant-Respondent. )

COMES NOW, Robert L. Russel, and

Thomas A. Barnes, Jr., and enter

their appearance as counsel on behalf

of The People of the State of Colorado,

ROBERT L. RUSSEL

District Attorney

THOMAS A. BARNES, JR.

Deputy District

Attorney

27 East Vermijo,

Suite 2N

Colorado Springs, CO

80903

Telephone: (303) 471-

5595

Attorneys for

Plaintiff-Petitioner

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .... iii-iv

I. REFERENCE TO THE OFFICIAL

REPORT OF THE OPINION

BY THE COLORADO SUPREME

sl a oe en ace ee ee l

aa.

III.

IV.

STATEMENT OF THE GROUNDS ON

WHICH THE JURISIDICTION OF

THE SUPREME COURT OF THE

UNITED STATES IS INVOKED,

SHOWING (a) THE DATE OF THE

JUDGMENT SOUGHT TO BE RE-

VIEWED, AND THE TIME OF ITS

ENTRY, (b) THE DATE OF THE

ORDER WHICH DENIED DEFENDANT

PETITIONER'S MOTION TO VACATE

REMITTITUR, AND (c) THE STATU-

TORY PROVISION BELIEVED TO

CONFER ON THIS COURT JURIS-

DICTION TO REVIEW THE JUDG-

MENT IN QUESTION BY WRIT OF

og ss GaP aot

STATEMENT OF THE QUESTIONS

PRESENTED FOR REVIEW... . 3

STATMENT OF THE CONSTITUTIONAL

PROVISIONS WHICH TRE INSTANT

CASE INVOLVES ....... 4=5

V. STATEMENT OF THE CASE, SPECI-

FYING THE STAGE IN THE PRO-

CEEDINGS IN THE COURT OF

FIRST INSTANCE AND IN THE

APPELLATE COURT, AT WHICH

AND THE MANNER IN WHICH

THE FEDERAL QUESTIONS

SOUGHT TO BE REVIEWED WERE

RAISED AND THE WAY IN WHICH

THEY WERE PASSED UPON BY

MACH COURT «© «© ts + we es OW?

VI. ARGUMENT AMPLIFYING THE

REASONS RELIED ON FOR

THE ALLOWANCE OF THE

WRIT OF CERTIOTATI ... «40-13

EXHIBIT "A"

Ruling of the Supreme

Court of Colorado ... . 14-21

EXHIBIT "B"

Colorado Appellate Rules

4.1, Interlocutory Appeals

in Criminal Cases ..... 22

EXNISIT °C"

Motion to Vacate

Remsiteitear « is os + « eaamtes

EXHIBIT "D"

Interlocutory Appeal from

the District Court El Paso

COONEY « « a +e a8 Se eee

iii

TABLE OF AUTHORITIES

CASES

Page

Carroll v. United States, 267

UeGe i324, 45 S.Ct. 280, 69

Dales SOP SABO « 0 s + « « « 8, AS

Chambers v. Maroney, 399 U.S.

42, 90 S.Ct. 1975, 26 L.Ed2d.

ae Seer els 6 a. 6. & ee «© 6 &, 23

Coolidge v. New Hampshire,

403 U.S. 443, 91 &.Ct. 2022

yoo ee ee ys) ee Pee

Ve &@

People v. Bannister, Colo. Sup.

Ce. CONS BO. Temmeems « 2s © oe l

People v. Neyra, 189 Colo. 367,

See Wome aert CASTSh« « « « © Ve 8

South Dakota v. Opperman, 428 .

U.S. 364, 96 S.Ct. 3092, 49

L.Bd2d. (1976). . « « « « « « 44,13

OTHER AUTHORITIES CITED

Page

Colorado Appellate Rule

Meets + « 6 « & = 4-30

U.S. Sup. Ct. Rule 19(1) (a)

260 U.S.C.A 30. © -s “se Bes

U.S. Const. Amend. IV... 5

SUPREME COURT OF THE UNITES STATES

THE PEOPLE OF THE STATE)

OF COLORADO, )

Plaintiff-Petitioner, )

) PETITION

vs. ) FOR

) WRIT OF

PETER RODNEY BANNISTER ) CERTIORARI

Defendant-Respondent. )

COMES NOW, the People of the

State of Colorado, by Robert L.

Russel, District Attorney, and through

his duly appointed Deputy District

Attorney, Thomas A. Barnes, Jr., and

for their Petiton for Writ of

Certiorari allege as follows:

1. A review in the Supreme

Court of the United States on Writ

of Certiorari is hereby requested

from the judgment of the Colorado

Supreme Court in Case No. 79SA556

entitled The People of the State of

Colorado vs. Peter Rodney Bannister

(1980). A copy of said opinion

which was filed in the Colorado

Supreme Court is in the appendix

hereto marked as Exhibit "A".

This case involved an inter-

louctory appeal by The People of

the State of Colorado, (hereafter

referred to as "The People" or “The

Prosecution")

Co. Appellate Rule 4.1(g)

(hereto marked as Exhibit "B"),

specifically prohibits a Petition

for Rehearing on interlocutory

appeals in criminal cases. The

opinion of the Colorado Supreme

Court, dated March 3, 1980, was

therefore ,a, final judgment.

On the same day it issued its

opinion, the Colorado Supreme Court

also issued an Order of Remittitur

to the trial court.

On March 18, 1980, The People

filed a Motion to Vacate Remittitur,

(hereto marked as Exhibit "C"). Such

Motion was denied by the Colorado

Supreme Court on March 28, 1980,

(hereto makred as Exhibit "D").

The trial court has stopped

proceedings concerning this case

pending filing of this Petition

for Writ of Certiorari.

2. The jurisdiction of this

Court is invoked pursuant to Rule 19

(1) (a) of the Revised Rules of the

Supreme Court of the United States

which provides that a review on writ

on certiorari may be considered "where

a state court has decided a federal

question of substance not thereto-

fore determined by this court, or

has decided it in a way probably not

in accord with applicable decisions

Of this court.” U.S. Gup. Ct.

Rule 19(1) (a), 28 U.S.C.A. 30.

The date of the judgment of

the Colorado Supreme Court sought

to be reviewed, and the time of its

entry are March 3, 1980. Pursuant

to U.S. Sup. Ct. Rule 22(1), 28

U.S.C.A. 36, "A petition for writ

of certiorari to review the judgment

of a state court of last resort in

a criminal case shall be deemed in

time when it is filed with the clerk

within ninety days after the entry

of such judgment."

The date of the Order which

denied The People of the State of

Colorado's Motion to Vacate

Remittitur is March 28, 1980.

3. The questions presented for

review are:

(1) Was this Honorable

Court's ruling in Coolidge v. New

Hampshire, 403 U.S. 443 91 S.Ct.

2022, 29 L.Ed.2d 564 (1971), in-

tended to prohibit the search and

seizure of stolen goods in plain

view inside the passenger compartment

of an automobile? As a corollary

issue, has the Colorado Supreme

Court's interpretation of Coolidge

v. New Hampshire, supra, resulted in

a Colorado standard of search and

seizure law, not based upon the

Constitution of Colorado, which

is in irreconcilable conflict with

landmark holdings of this Honorable

Court, including Carrol v. United

States, 267 U.S. 132, 45 &.Ct. 280,

69 L.Ed. 543 (1925); and Chambers v.

Maroney., 399 U.S. 42, 90 S.Ct. 1975

26 L.Ed.2d 419 (1970)

(2) When the Colorado

standard pertaining to search and

seizure law is based upon interpre-

tation of the federal Constitution,

should this Honorable Court require

state court compliance with its

rulings establishing plain view

and automobile exceptions to the

search warrant requirement of the

federal Constitution? As a corallary

issue, should this Honorable Court

require state court compliance with

holdings of this Court recognizing

that a search warrant is not Con-

stitutionally mandated when the hour

is late, the automobile is potenti-

ally mobile, and stolen goods are in

plain view?

4. The following Constitutional

provision is involved in the subject

case:

U.S. Const. Amend IV: "The

right of the people to be secure in

in their persons, houses, papers,

and effects, against unreasonable

searches and seizures, shall not be

violated, and no Warrants shall issue,

but upon probable cause, supported

by Oath or affirmaton, and parti-

cularly describing the place to be

searched, and the persons or things

to be seized."

5. In the early morning hours

of October 15, 1979, Officer Lopez

of the Colorado Springs Police

Department observed a 1967 blue

Pontiac GTO automobile going faster

then the posted speed limit. The

officer attempted to stop it and

cite the driver for speeding, but

the vehicle disappeared from the

Officer's sight.

A short time later, Officer

Lopez monitered a police radio dis-

yatch which reported a theft of motor

vehicle parts which had occurred in

his general vicinity. The dispatch

reported that among the items stolen

were a number of chrome lug nuts.

The report also gave a description

of two persons suspected of the theft.

Soon after hearing the radio

dispatch, Officer Lopez again ob-

served the same blue Pontiac auto-

mobile at a high rate of speed enter

a service station. He stopped the

vehicle, then located next to

several well-lit gas pumps, in order

to issue its driver a traffic cita-

tion. In the vehicle were its

driver and owner, defendant Bannister,

and a single passenger, defendant

Howarth.

As Officer Lopez approached

the vehicle, both defendants exited.

A conversation between the driver,

Bannister, and Officer Lopez took

place just outside of the left front

door of the vehicle. The door was

at this time closed.

Officer Lopez observed that the

defendants generally matched the

descriptions given in the radio dis-

patch, and also noted that the rear

tires of the vehicle were "bald".

Upon looking through the left front

window into the interior of the

automobile windows, he inadvertently

observed several chrome lug nuts in

an open glove box located between the

vehicle's front bucket seats. He

also observed two tire irons on the

floor boards of the back seat. All

of these items were in plain view,

illuminated by the lights of the

service station.

Officer Lopez immediately

arrested the defendants on a charge

of theft of auto parts, placing

them into custody in his police

Cruiser. He then seized the lug

nuts and tire irons without benefit

of a warrant.

The defendants were charged by

information with the crimes of

attempted theft of auto parts

(felony), and theft of auto parts

(misdeme anor).

Defense counsel for both

defendants requested a hearing to

Suppress the lug nuts and tire irons

seized by Officer Lopez.

The trial court suppressed the

use in evidence against defendant

Bannister, of the lug nuts and tire

irons, citing as precedent the Colo-

rado Supreme Court case of People

vs. Neyra, 189 Colo. 367, 540 P.2d

1077 (1975). Neyrs specifically

relies upon the following wording

from the U.S. Supreme Court case

of Coolidge v. New Hampshire, supra.

“The limits on the [plain view]

coctrine are implicit in the state-

ment of its rationale. The first of

these is that plain view alone is

never enough to justify the warrant-

less seizure of evidence. This is

Simply a corollary of the familiar

principle idscussed above, that no

amount of probable cause can justify

a warrantless search or seizure

absent ‘exigent circumstances.'"

The trial court, at page three

of its order, reasoned that: "no

exigent circumstances existed justi-

fying the search. The defendants

had been arrested and placed in

custody prior to the subject search,

and their automobile was taken in

police custody. Once the defendants

had been arrested and their auto

placed in police custody, Officer

Lopez was duty bound to otain a

warrant to search the defendant's

vehicle. The fact that the items

seized were in plain view, did not

lessen the duty to obtain a warrant."

The prosecution took an inter-

locutory appear of the trial court's

ruling to the Colorado Supreme Court

specifically requesting a review of

the trial court's suppression of the

lug nuts and tire irons

The Colorado Supreme Court

affirmed the ruling of the trial

court, (see Exhibit "A"), specifi-

cally relying upon People v. Neyra,

Supra. and citing with approval

the language in Neyra, (at 540 P.2d

1079) taken from Coolidge v. New

Hampshire, supra., that "no amount

of probable cause can justify a

warrantless search or seizure absent

"exigent circumstances. '!"

The Colorado Supreme Court, by

Citing Coolidge and other U.S.

Supreme Ct. decisions, has therefore

adopted its own interpretation of

the federal standard pertaining to

plain view searches and seizures.

The state court has not cited or

relied upon the Constitution of

Colorado, except in dicta regarding

standing to challenge the seizure.

This Petition for Writ of

Certriorari, therefore, involves

substantial federal questions. The

following section demonstrates how

the Colorado Supreme Court has de-

cided these questions in a way which

is in irreconcilable conflict with

applicable decisions of this Honorable

Court.

6. The Colorado Supreme

Court has reiied in its decision

upon the following wording from

the plurality opinion in Coolidge

v. New Hampshire, (supra, at 403 U.S.

458):

"The limits on [the plain view]

doctrine are implicit in

the statement of its ration-

ale. The first of these

is that plain view alone

is never enough to justify

the warrantless seizure of

evidence. This is simply

a corollary of the familiar

principle discussed above,

that no amount of probable

Cause can justify a warrant-

less search or seizure absent

"exigent circumstances'."

The language in Coolidge relied

upon by the Colorado Supreme Court

was clearly never intended by this

Honorable Court to prohibit the

search and seizure of stolen goods

in plain view inside the passenger

compartment of an automobile.

This mistaken reliance upon

Coolidge to justify the decision of

the Colorado Court is apparent when

one notes the following language in

Coolidge, appearing at 403 U.S.

471-473:

"But to extend the scope of such

an intrusion to the seizure

of obtects--not contraband

nor stolen nor dangerous in them-

Sseives--which the police know in

advance they will find in plain view

and intend to seize, would fly in

the face of the basic rule that no

amount of probable cause can justify

a warrantless seizure.

In light of what has been said,

it 1S apparent that the ‘plain view'

exception cannot justify the police

seizure of the Pontiac car in this

case. The police had ample oppor-

tunity to obtain a valid warrant;

they knew the automobile's exact

description and location well in

advance; they intended to seize it

when they came upon Coolidge's pro-

perty. And this is not a case in-

volving contraband or stolen goods

Or objects dangerous in themselves.

The seizure was, therefore,

unconstitutional."

. None of tne factors present

in Coolidge are present in the

instant case. In the case at bar,

the initial stop of the automobile

occurred in the early morning hours,

when there was not "ample opportunity

to obtain a warrant." The police did

not know the automobile's description

and location in advance. Perhaps most

importantly, the case at bar is a

case involving stolen goods.

It is obvious that Coolidge is

easily distinguishable from the in-

stant case, and that the Colorado

Supreme Court's interpretation of

Coolidge is markedly different from

the intended holding of Coolidge.

It must be emphasized that this

contorted reading of Coolidge is not

Stated by the Colorado Supreme Court

as being founded on application of

the Colorado Constitution. Reliance

is instead placed upon the Fourth

Amendment of the U.S. Constitution,

making the Colorado holding a federal

question of paramount importance to

this Honorable Court.

This Court, in South Dakota v.

Opperman, 428 U.S. 364, 96 S.Ct. 3092,

49 L.Ed.2d (1976), granted Certiorari

to an appeal by the State of South

Dakota of a ruling by the South

Dakota Supreme Court. This Court

“—

reversed the ruling Of the state

supreme court that evidence seized

from a car had been cbtained in

violation of the Fourth Amendment,

as made applicable to the states by

the Fourteenth.

This Honorable Court, relying

upon Carroll v. United States, supra.,

and Chambers v. Maroney, Supra.,

again emphasized the mobility doctrine

and also stated (at 428 U.S. 367),

“Besides the element of mobility, less

rigorous warrant requirements govern

because the expectation of privacy

with respect to one's automobile is

Significantly less than that relating

to one's home or office."

The Opperman holding clearly re-

flects a concern by this Honorable

Court when a state court, relying

upon the federal Constitution,

misinterprets the holdings of the

U.S. Supreme Court.

This Court should grant cert-

iorari in the case at bar to ensure

that its holdings are fairly applied

by the Colorado Supreme Court.

Respectfully submitted,

Thomas A. Barnes, Jr.

Deputy District Attorney

EXHIBIT "A"

IN THE SUPREME COURT OF COLORADO

NO. 70SA556

THE PEOPLE OF THE STATE

OF COLORADO,

Plaintiff-Appellant,

)

vs. )

)

PETER RODNEY BANNISTER )

Defendant-Appellee. )

Interlocutory Appeal from

the District Court of El

Paso County Honorable

John F. Gallager, Judge

EN BANC RULING AFFIRMED

Robert L. Russel, District Attorney

Thomas A. Barnes,

Deputy District Attorney

Attorneys for Plaintiff-Appellant,

Robert M. Moyers

Attorney for Defendant-Appellee

JUSTICE ERICKSON

delivered the Opinion of the Court

This 1S an interlocutory appeal

by the prosecution from an order

Suppressing evidence seized from the

Defendant Peter Rodney Bannister's

automobile. We affirm.

In the early morning hours of

October 15, 1979, Officer Lopez of

the Colorado Springs Police Depart-

ment observed a 1967 Pontiac GTO

automobile containing two occupants

and proceeding at a high rate of

speed. Before the officer could

engage in pursuit, however, the

vehicle disappeared from his sight.

Shortly thereafter, the officer

overheard a police radio dispatch

which reported a theft of motor

vehicle parts in the area he was

patrolling. The dispatch reported

that among the items stolen were

a number of chrome lug nuts. The

reports also gave a description of

the two persons suspected of the

theft.

Within minutes of the report,

Officer Lopez again saw the Pontiac

GTO that he had attempted to pur-

sue earlier containing the same

two occupants. The venhicte entered

a service station at a high rate of

speed. Officer Lopez stopped the

vehicle, which was driven anc owned

by Bannister, for the purpose of

issuing a traffic citation to him.

When Officer Lopez approached

the vehicle, both of the vehicle's

occupants got out of the car.

Officer Lopez first questioned

Bannister and then looked into the

Pontiac GTO where he allegedly saw

chrome lug nuts in plain view in an

opened glove compartment. At that

time, the officer concluded that

the vehicle's occupants matched

the description which he had heard

in the police dispatch relating to

theft of motor vehicle parts. Offi-

cer Lopez arrested Bannister and the

passenger, handcuffed them, and

placed them in the rear seat of his

police cruiser. He subsequently

searched the vehicle and seized

several lug wrenches and the chrome

lug nuts.

Prior to his trial for theft

of motor vehicle parts, Bannister

moved to suppress the items seized

by Officer Lopez. Relying on our

decision in People v. Neyra, 189

Colo. 367, 540 P.2d 1077 (1975), the

trial court properly granted the

motion, finding that no exigent

Circumstances existed to justify

the warrantless search.

One of the most fundamental rules

in Fourth Amendment jurisprudence is

that, subject only to a few specially

established and well-delineated ex-

ceptions, searches conducted outside

the judicial process, without prior

approval by judge Or magistrate, are

per se unreasonable under the Fourth

Amendment. Katz v. United States,

389 U.S. 347, BS &.CE. S07, 19 LB.

2d 576 (1967). These exceptions

have been "jealously and carefully

drawn," Jones v. United States, 357

U.S. 493, 76 &.Ct. 1253, 2 b&b. Be.26

1514 (1958), and they have been

limited in their search to that

which is necessary to accomodate the

identified needs of society. Arkan-

Sas v. Sanders, U.S. , 99 S.Ct.

2586, 61 L.Ed.2d 235 (1979). In all

cases, the burden has been squarely

placed on those seeking the exemp-

tion from warrant requirements to

show that there is a need for it. =

United States v. Jeffers, 342 U.S.

48, /2 &§.Ct. 93, 96 L.Ed. 59 (1951);

People v. Casias, 193 Colo. 66, P.2d

926.

The passenger in the

Bannister vehicle was

also charged with theft

of motor vehicle parts

and he joined with

Bannister in moving

for the suppression

of the evidence

seized by Officer

Lopez. Because

the passenger did

not assert a poss-

essory interest in

the items seized,

he was denied stand-

ing to challenge the

seizure. Rakas v.

Illinois, 439 U.S.

a2e, 99 S.Ct. 421,

598 L.Ed.,2d 387

(1978). The pro-

priety of the trial

court's ruling has

not been challenged

On appeal. We note

that this Court has

not yet considered

whether the stand-

ing limitations im-

posed by Rakas v.

Illinois, supra, —

apply to suppression

motions based on the

provisions of Article

II, section 7 of the

Colorado Constitution.

(1977); People v. Alexander, 193,

Colo. 27, 561 P.2d 1263 (1977).

The prosecution asserts on

appeal that the warrantless search

and seizure conducted by Officer

Lopez was valid because the articles

seized were in plain view. In

People v. Neyra, 189 Colo. 367,

540 P.2d 1077 (1975), however,

we held that, while a plain view

Sighting of contraband or other

evidence of a crime may be suffi-

cient to establish the requisite

probable cause needed to obtain

a warrant, it is not sufficient

to justify a warrantless entry

into a vehicle to seize evidence.