Opposition — Colorado v. Bannister

t oe a ee os

AUG BB RO P|

|

MICHAEL RODAK, JR., CLERK |

IN THE SUPREME COURT

OF THE

UNITED STATES

No. 79-1901

THE PEOPLE OF THE STATE )

OF COLORADO, )

)

Plaintiff-Petitioner, )

) MOTION FOR LEAVE TO

vs. ) PROCEED IN

) FORMA PAUPERIS

PETER RODNEY BANNISTER, )

)

Defendant-Respondent. )

Defendant-Respondent, PETER RODNEY BANNISTER, by and

through his attorney ROBERT M. MOYERS moves this Court for an

order permitting him to proceed in this Court, in forma pauperis,

in connection with the Petition for Certiorari from the judgment

of the Colorado Supreme Court entered in this cause on March 3,

1980, pursuant to the provisions of Title 28, United States Code,

Section 1915, and Rule 53 of the Rules of this Court, and in

support thereof attaches the Affidavit of said Appellant,

Filed herewith is Defendant-Appellant's Response to

the Petition for Writ of Certiorari.

Respectfully submitted,

Kata WY wager

Robert M. Moyers r

Attorney for Peter Rodney Bannister

303 South Cascade Ave.

Colorado Springs, Colorado 80903

(303) 636-5241

( € OO grog

: FILED

AUG 12 1980

JMICHAEL RODAK, JR., CLERK

‘

IN THE SUPREME COURT

OF THE

UNITED STATES

No. 79-1901

THE PEOPLE OF THE STATE

OF COLORADO,

Plaintiff-Petitioner, AFFIDAVIT IN SUPPORT OF MOTION

TO PROCEED IN THE SUPREME COURT

OF THE UNITED STATES IN

FORMA PAUPERIS

vs.

PETER RODNEY BANNISTER,

Defendant-Respondent.

STATE OF COLORADO )

COUNTY OF EL PASO i

PETER RODNEY BANNISTER being duly sworn, deposes and

says:

1. I am a citizen of the United State$ and the Defendant-

Respondent in the above-entitled action.

2. I am aware that the PEOPLE OF THE STATE OF COLORADO

desire to prosecute an appeal from the judgment entered by the

Supreme Court of the State of Colorado, and that a Petition for

Certiorari is pending before this Court.

3. Because of my poverty I am unable to pay the costs

of responding to said appeal and still be able to provide myself

and my dependents with the necessities of life.

4. I contend that the holding of the Supreme Court of

the State of Colorado was not in error in this matter, and that

it should be affirmed, and that I should be given an opportunity

to respond to the Petition for Certiorari herein.

WHEREFORE, Affiant prays that he may have leave to

proceed in this Court on appeal in forma pauperis.

SZ AB mms

Peter Rodney Bannister

STATE OF COLORADO ) ss

COUNTY OF EL PASO ) :

PETER RODNEY BANNISTER, being first duly sworn, upon

oath, deposes and says that he is the Defendant-Respondent

in the foregoing Affidavit in Support of Motion to Proceed in

the Supreme Court of the United States in Forma Pauperis, that he

has read same and that the statements contained therein are true.

Ly i 72 -

Pei XN MS AT dk

Peter Rodney Bannister

_ Subscribed and sworn to before me this AY day of

Juli, 1980.

~~

My commission expires: ~ “""o 7

e. a ee

BA ios) £) wo 4 ee

Notary Public (

~

x Supreme Court, US.

FILED

AUG 22 180

i

|

|

|MICHAEL RODAK, JR. CLERK

e ——

eal

IN THE SUPREME COURT

OF THE

UNITED STATES

No. 79-1901

THE PEOPLE OF THE STATE )

OF COLORADO, )

)

Plaintiff-Petitioner, )

) ON PETITION FOR

vs. ) WRIT OF CERTIORARI

)

PETER RODNEY BANNISTER, )

)

Defendant-Respondent. )

BRIEF OF RESPONDENT IN OPPOSITION TO

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: (393) 471-5595

Attorneys for Plaintiff-

Petitioner

ROBERT M. MOYERS, Attorney for

De fendant-Respondent

303 South Cascade Avenue

Colorado Springs, CO 80903

Telephone: (303) 636-5241

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTION .

CONSTITUTIONAL PROVISIONS INVOLVED

QUESTIONS PRESENTED

STATEMENT OF THE CASE

ARGUMENT .

INDEX

we NY WN

TABLE OF AUTHORITIES

CASES

Carroll v. ©. S., 267 U. S. 132, 45 S.

o wee Cheese « os «0

, .

Chambers v. sarge x 399 U. S. 42, 90 S. Ct.

’ L. E . d 419 (1970) - . . . . .

443,

Coolidge v. New Hampshire, 403 U. Ss.

2022, 29 L. Ed. a Sé¢ (1971) . ..

Ss v. Bannister, 607 P. 24

0) . 7 - . . . . . . . . .

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

, L. E . 0 (1976) . . . . . . . .- .

STATUTES

U.S. Constitution, Fourth Amendment

e. 2. Supreme Court, Rule 19 (1) (a)

ct.

91 S. Ct.

Page

IN THE SUPREME COURT

OF THE

UNITED STATES

No. 79-1901

THE PEOPLE OF THE STATE )

OF COLORADO, )

)

Plaintiff-Petitioner, )

) ON PETITION FOR

vs. ) WRIT OF CERTIORARI

)

PETER RODNEY BANNISTER, )

)

Defendant-Respondent. )

BRIEF FOR RESPONDENT IN OPPOSITION

COMES NOW the Respondent above named by and through

his attorney ROBERT M. MOYERS and in response to the Petition for

Writ of Certiorari herein states as follows:

OPINION BELOW

The Opinion delivered in the Court below is reported

as 607 P. 2d 987 (1980), and is appended to the Petition for a

Writ of Certiorari. The Opinion was delivered March 3, 1980,

Opinion No. 79SA556. On March 28, 1980 the Colorado Supreme

Court denied Petitioner's Motion to Vacate Remittitur, also

appended to the Petition for a Writ of Certiorari.

JURISDICTION

Petitioner invokes Rule 19(1)(a) of the Rules of this

Honorable Court as the Jurisdictional basis for review. While

Respondent does not question the timeliness of the filing of the

writ, Respondent feels that Rule 19(a)(1) is inapplicable because

the Federal questions decided by the Colorado Supreme Court were

decided in accordance with applicable prior decisions of this

Honorable Court.

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Fourth Amendment: "The

right of the people to be secure 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 affirmation, and particularly describing the

place to be searched, and the persons or things to be seized."

QUESTIONS PRESENTED

Respondent feels that the question presented by the

Petition is the same question presented in Respondent's Motion to

Suppress Evidence filed in the trial court, namely: was the

warrantless search of Respondent's motor vehicle and the seizure

of evidence therefrom prohibited and illegal under the Fourth

Amendment of the Constituion of the United States and the judicial

interpretations thereof?

STATEMENT OF THE CASE

In the early morning hours of October 15, 1979 Officer

Lopez of the Colorado Springs Police Department obsered 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 there-

after, he overheard a police radio dispatcher reporting a theft

of motor vehicle parts in the area he was patrolling. The

dispatcher reported among the items stclen were a number of

chrome lug nuts. The report also gave a description of the two

persons suspected of the theft. Shortly thereafter Office Lopez

=2=

again saw the Pontiac GTO he had attempted to pursue earlier con-

taining the same two occupants. The vehicle entered a service

station at a high rate of speed, and the Officer stopped the vehicle,

which was driven and owned by Defendant Bannister, for the purpose

of issuing a traffic citation to him. As the Officer approached

the vehicle, both parties exited. A conversation between Bannister

and Officer Lopez took place just outside the left front door of

the vehicle, which at the time was closed. The Officer observed

chrome lug nuts in an opened glove compartment inside the vehicle

as well as two tire irons on the floorboard of the back seat. All

of these items were in plain view illuminated by the lights of the

service station. The Officer thereupon arrested Bannister and the

other occupant of the vehicle, and placed them in the rear seat of

his police cruiser. He then searched the automobile without benefit

of a warrant, seizing the lug nuts and tire irons. Prior to his

trial for theft of motor vehicle parts, Defendant Bannister moved

to suppress the items seized by the Officer. The trial court

granted the motion, and upon appeal to the Colorado Supreme Court,

the trial court's ruling was affirmed. Thereafter the People of

the State of Colorado filed the Petition for Writ of Certiorari with

this Honorable Court.

ARGUMENT

IN AFFIRMING THE TRIAL COURT'S SUPPRESSION ORDER, THE

COLORADO SUPREME COURT DID NOT ESTABLISH A NEW STANDARD OF SEARCH

AND SEIZURE, BUT RATHER PROPERLY APPLIED BOTH FEDERAL AND STATE

JUDICIAL INTERPRETATIONS OF THE FOURTH AMENDMENT AS APPLIED TO

WARRANTLESS AUTOMOBILE SEARCHES.

Petitioner contends that the Colorado Supreme Court by

Suppressing evidence in this case established a standard of search

-3-

moment of its seizure does not indicate that the "plain view"

doctrine applies. In Coolidge, this Honorable Court emphasized

that the "plain view" doctrine was subject to the limitations

that plain view is never enough to justify the warrantless search

and seizure of evidence, and that the discovery of evidence in

plain view must be inadvertent. The Court emphasized that while

the seizure of a particular object might be justified whether the

object was observed in plain view following an initial intrusion

which was legitimated either by a warrant or such exceptions to

the warrant requirement as hot pursuit or search incident to arrest,

the plurality stated that to extend the scope of such an intrusion

to the seizure of objects not contraband nor stolen nor dangerous

in themselves which the police knew in advance they would find in

plain view and which they intended to seize would fly in the face

of the basic rule that no amount of probable cause can justify a

warrantless search. [In its brief, Petitioner claims that the

instant case differs from Coolidge. It is, however, similar in

One crucial regard: in neither did there exist exigent circum-

Stances justifying a warrantless search. In the instant case

Defendant Bannister was out of the vehicle with the door closed at

the time he first encountered Officer Lopez, and at the time Officer

Lopez conducted the search of Bannister's behicle, Bannister was

under arrest and in the police cruiser. The opportunity for

search was thus hardly fleeting. The items seized were not seized

pursuant to an inventory search of the kind involved in South

Dakota v. Opperman, 428 U. S. 364, 96 S. Ct. 3092, 49 L. Ed. 2a

1000 (1976). Because Bannister's vehicle was in a well-lighted

area, not on a highway, and the occupants of the vehicle were

already under arrest and in police custody, the case is distinquish-

able also from Carroll v. U. S., 267 U. S. 132, 45 S. Ct. 280,

-5-

69 L. Ed. 543 (1925) and Chambers v. Maroney, 399 U. S. 42, 90

S. Ct. 1575, 26 L. Ed. 2d 419 (1970) for, as this Honorable Court

stated in Coolidge et 403 U. &. 479%

Carroll, on its face, appears to be a classic

example of a doctrine that warrantless searches

are per se unreasonable in the absence of exigent

circumstances. Yet if we take the viewpoint of a

judge called on only to decide in the abstract, after

the fact, whether the police have behaved "reasonably"

under all the circumstances - in short if we simply

ignore the warrant requirement - Carroll comes to

stand for something more. The stopping of a vehicle

on the open highway and a subsequent search amount

to a major interference in the lives of the

Occupants. Carroll held such an interference to

be reasonable without a warrant, given probable

cause. It may be thought to follow a fortiori that

the seizure and search here - where there was no

stopping and the vehicle was unoccupied - were also

reasonable, since the intrusion was less substantial,

although there were no exigent circumstances whatever.

Using reasoning of this sort, it is but a short step

to the position that it is never necessary for the

police to obtain a warrant, before searching and

seizing ah automobile, provided they have probable

cause,

Essentially Petitioner is urging the adoption of a

"reasonableness" test to determine the validity of warrantless

searches, rather than the test applied in Coolidge. In the instant

case, it may have been inconvenient or time consuming for the police

to obtain a warrant, but not impossible. There was no danger of the

car being tampered with. Unlike Opperman, there was no indication

of valuables in the vehicle that required an immediate inventory

search.

In its Petition, Petitioner repeatedly states that

Coolidge is inapplicable to the instant case, yet it is never made

clear how the two differ, except that in the instant case some of

the items seized were allegedly stolen. This Honorable Court has

repeatedly held that plain view is never enough to justify a warrant-

less automobile search, and there are no additional factors present

to redeem the police conduct here. Since Bannister was already

~

under arrest, the search here cannot be justified as a search in-

cident to arrest. Since the car was stopped, with all occupants

out of the vehicle, and since it was parked in an area where the

police would have had no problem preventing its being tampered with

until the warrant were obtained, the theory that the search is

justified as a "fleeting" opportunity also fails.

In the instant case the Colorado Supreme Court has

adopted the reasoning of Coolidge in suppressing the evidence

seized. An analysis of Petitioner's argument reveals that it is

not the method used by the Colorado Supreme Court to arrive at its

decision to which Petitioner objects, but rather that Court's

refusal to condone the search, in the absence of any findings of

exigent circumstances by the trial court, solely on the "plain view"

theory. Such a ruling by the Colorado Supreme Court would indeed

conflict with this Honorable Court's declarations in Coolidge. No

new standard has been advanced by the Colorado Supreme Court in

affirming the suppression order, and contrary to Petitioner's

position, a "contorted" reading of Coolidge was not necessary to

reach the finding that the Court made. Petitioner seems to forget

that the burden of proof in justifying a warrantless search is on

the prosecution, not the defendant, and that in the instant case,

the only theories advanced by the prosecution to justify this

warrantless search were the "plain view" doctrine and search

incident to arrest (this argument has apparently been abandoned

in this Petition); that theory was held insufficient by the

Colorado Supreme Court based upon what this Honorable Court has

stated in Coolidge.

It is respectfully requested that this Court not grant

the Petition for Certiorari herein, because Petitioner has failed

to show that the Colorado Supreme Court has decided a Federal

-7-

question in conflict with the prior decisions of this Honorable

Court. Rather, all that the brief of the Petitioner shows is that

the Colorado Supreme Court was asked to justify a warrantless

automobile search solely on the basis of the plain view doctrine,

which, on the facts in the instant case and based upon the prior

rulings of this Honorable Court, would have in fact been contrary

to the law.

Respectfully submitted,

ol J 07) Th

RObert M. Moyers r=

Attorney for Defendan Reames

Peter Rodney Bannister