Petition — Green v. Louisiana

VOL. I

Court, U, @-

LED

IN THE ‘i = SR 2B t989

Supreme Court of the United Stal es

OCTOBER TERM, 1979

CLERN

No. 79-2045

JEFF H. DUPUIS, BERNIS H. DAVISON

JOHN ZERBE and WILBUR L. SMITH

Petitioners

VERSUS

STATE OF LOUISIANA

Respondent

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF LOUISIANA

GRISBAUM & KLEPPNER

FERDINAND J. KLEPPNER

Professional Building

3224 North Turnbull Drive

Metairie, Louisiana 70002

ATTORNEYS FOR PETITIONERS

INDEX

Petition For Writ of Certiorari to the Supreme

ere ere he ee ee error

Citation to Opinion Below .............cc0000.

a otis A ea ea ace 6.6 Ges ee

I 3 on ee Ns ale wees

Constitutional and Statutory Provisions In-

PE ENC hgh ON Kos eek ee ee ew aes

Amendment IV ........... cess cece e eee

Amendment XIV. Section]. ........0.00000.

SE Se ix bis 6 VR ee he kee ee

Re ee OID hai ca ho eeGaks coweaaepaces

ee 21 On as Nas be eee ween ea

NE IIIS inci ae ey ae enucn bay ae Gib

Rule 41. Search and Seizure .............20--

(a) Authority to Issue Warrant............

(b) Property or Persons Which May Be

Seized With a Warrant ...............

(c) Issuance and Contents ..........cccce

s6¢e¢6 6 8 8 ©. Oa

INDEX CONTINUED

Page

ES 5

(2) Warrant Upon Oral Testimony ............... 6

SUI oe cc cc nccccccccses 6

Sd eves es cos seecee’ 6

A 6

(D) Recording and Certifica-

tion of Testimony ................ 7

CGC Sy isin ose sea cccerssccces 7

(F) Additional rule forexecution ..... 7

(G) Motion to suppress Precluded.......... 7

Ee dS boss cc ce ects ees cceececes 8

Federal Questions Raised and Decided Below ............ 12

Argument and Reasons for Granting the Writ............. 14

CeCe NG ees bcsbecccceccscccsecs 49

SE ee eae 50

EE A-|

i ee tapes ccceesccces A-261

Nt ee acess esscceces A-271

LIST OF AUTHORITIES

Page

Aguilar v. Texas, 378 U.S. 108, 84 S. Ct.

Sa, Be es ee CD Ca's x vcd nei wey ee weee 35

pees: +, TONG FeO. CR ZOO vik os vee ca her eedss 45

Brock v. United States, 223 F.2d 681 (Sth Cir., 1955)... .15, 18

Carroll v. United States, 267 U.S. 132, 45

Re Se A Ea ARs peer ee 44, 46

Chambers v. Maroney, 399 U.S. 42, 90S. Ct.

epee 4 ele Fk) er ere ar 44, 45

Commonwealth v. Myers, 361 A. 2d 884 ©

Sr a saa veks cece hues Cotevebe sweats 18,19

Coolidge v. New Hampshire, 403 U.S. 443,

Re cated exiatie ae heater 41, 43, 44, 48, 49, 15

Fixel v. Wainwright, 492 F.2d 480 (Sth Cir.,

SORE a sley CLL GEN REED RSE Oe ee eRe Rha 25, 26

G.M. Leasing Corporation v. United States,

429 U.S. 338, 354, 97 S. Ct. 619, 50 L.Ed. 2d 530....... 48

Hester v. United States, 265 U.S. 57 44S. Ct.

Se, Ge i a A a es seks eek dh) cee eeen 23

In Re Brewer, 24 Ill. App. 3rd 330, 320

Paks a PE 5b 5 6a ass eae REE ees aA eas 19

Johnson v. United States, 333 U.S. 10, 13,

14, 68 &. T..367, 92 L. Ed. 436 (1948) 2... ccc cc cence 43

-iii-

LIST OF AUTHORITIES CONTINUED

Jones v. United States, 357 U.S. 493, 499

CEOSEN Fe ee as Barak Bee TOs BOE vine bois cevccvcnes 47

Katz v. United States, 389 U.S. 347, 88 S. Ct.

507, 19 L. Ed. 2d 576 (1967) ....15, 20, 23, 25, 26, 31, 33

Lorenzana v. Superior Court of Los Angeles

County, 9 Cal. App. 3d 626, 108 Cal. Rptr.

ee et ee OED +o cee Skea eee be sca enews 30

Ludlow v. State, 314 N.E. 2d 750 (Ind. 1974) ............ 47

McDonald v. United States, 335 U.S. 451,

456 (1948), 69 S. Ct. 191, 93 L. Ed. 193... 2. cece 47

Olmstead v. United States, 277 U.S. 438 (1928) .......... 24

Patler v. Slayton, 503 F.2d 472, 477 (4th

Eee CEs oe OR ee a ee ae hie 23

Payton v. New York, (No. 78-5420) (1980) ............ 6,48

People v. Abruzzi, 52 A.D. 2d 499, 385

Be, Oe Ee en ee GM. GE BPO Se awicnsccecccnvers 20

People v. Fly, 34 Cal. App. 3d 665, 110 Cal.

i, I i at Ta es ap bwin 29

People v. Sneed, 32 Cal. App. 3d 535, 108

ey ee oe as wg ae bes 6 de hae 30

People v. Walker, 64 Mich. App. 138, 235

See eee RE Rua eo a how kees amas ives eve 19, 37

LIST OF AUTHORITIES CONTINUED

Page

People v. Weisenberger 216 P. 2d 1128 (Col.

aia a se wad Ce eee ce ee kk ee ee

Phelan v. Superior Court of Mariposa County,

235i Col. Reer., 399, 66S (CL. Ape. ISTE) 2. ev cccsss 18, 28

Riddick v. New York, (No. 78-5421) (1980) ............. 26

Roaden v. Kentucky, 413 U.S. 6, 595, 93

ee eee Oe bas BO POP RASEED bo is vcs Cee ceus ews 47

Rakas v. Illinois, 439 U.S. 128; 99 S. Ct.

421: 58 L. Ed. 2d 387 (1962) .14, 15, 24, 30, 32, 33, 34. 35

State v. Allan, 113, N.J. Super. 245, 273 A.

eT A, Ce ETD va Saw bcc pos seen ches neuen 37

State v. Byers, 359 So. 2d 84 (La. 1978) ..............4.. 23

State v. Dupuis, 378 So. 2d at 937 ............... 16, 33, 42

State v. Hinton, 305 So. 2d 804 (Fla. 4th

A TU vb Sn Senate nape wens okeaneenndeed 37

State v. Lamartiniere, 362 So. 2d 526 (La., 1978) ......... 16

State v. Mankel, 27 Ariz. App. 436, 555 P.

Fe POE oh ce ewes Naas Swe dakens cheat inmate 47

State v. Parker, 355 So. 2d 900 (La. 1978) .............. 43

State v. Porter, 324 N.E. 2d 857 (Ct. App.

ee, SENET & sos aes ogee SRARREK ARS > SHORE TS 40

LIST OF AUTHORITIES CONTINUED

Page

State v. Rudolph, 369 So. 2d 1320 (La., 1979) ........... 38

i rr ee ee es o's baa W's da babes oes 29

State v. Watkins, 237 N.W. 2d 14(S.D. 1975) ............ 18

Texas v. Gonzales, 388 F. 2d 145 (Sth Cir.

he oe OU ss USS dapekas, “TEARS een ee ee 15

T. L. W. v. State, 315 So. 2d 202 (Fla. 3rd _

Ee os eee ee eae oe 64 eras we Dae 37

United States ex rel Saiken v. Bensinger, 546

er CMD cee weneeesvencnbaeee 34

United States v. Alexander, 559 F.2d 1339

i aM ay baad wate 46

United States v. Anderson, 500 F.2d 1311,

ed ute eee spake th 46

United States v. Bradshaw, 490 F.2d 1097,

i Tg Le ee tena b 15

United States v. Britt, 5 Cir. 1975, 508

F.2d 1052, 1055 Cert Denied 423 U‘S.

oo 8 Soe Oe a ky eee 31

United States v. Brown, 473 F.2d 952 (Sth

RI Tia TS aR al Pa i Re 23

-Vi-

LIST OF AUTHORITIES CONTINUED

Page

United States v. Carriger, 541 F.2d 545, 550

NAN aA oo og ok wad a olen eee ols ee

United States v. Chadwick, 1977, 493 U.S. 1,

11,97 S. Ct. 2476, 2483, 53 L. Ed. 2d 538, 548 ........31

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

a ee Me Ee te, | en cr 44

United States v. Chapmen, 474 F.2d 300

Lt es I tem teed 46

United States v. David 423 F.2d 974 (Sth Cir.

Py Riel ite Ass TORRES SW ee CR ke 16

United States v. Davis, 423 F.2d 974 (5th

Cir., 1970), Cert Denied, 400 U.S. 836 (1970)....... 26, 33

United States v. Freie, 545; F.2d 1217, 1223

re ee dace weeks veces 23

United States v. Hart, 162 F.2d 74 (10th

SR PRC Renee ores Fr (Dare eae Oa a Re ear 47

United States v. Hollon, 420 F.2d 302 (5th

RU a ira Sng ee a bee ON Nid alee ae gg eled 23

United States v. Holmes, 521 F.2d 859

MNF 5 es dels As bce GDS ee eae 17, 18, 27

United States v. Jeffers, 342 U.S. 48 51 72

cies Oe a, RUE SAS oes Bh ae coed head 47

-Vii-

LIST OF AUTHORITIES CONTINUED

Page

United States v. Johnson 541 F.2d 1311,

are e e wie eee 15

United States v. Nieto, 510 F.2d 1118 (Sth

NN fe ee rea ee ee) Saale pike Wie 0.4 008 47

United States v. Perez, 440 F. Supp. 272,

ils we woe aia 23

United States v. Chapman, 474 F.2d 300

ne ee we 5 bo Ou 46

United States v. Rios, 611 F.2d 1335 (10th

I fo a lS ike aa ead ba wide whe o's 32

United States v. Vicknair, 610 F.2d 372

ee gl la de dwn am 30, 3)

Walker v. United States, 225 F.2d 447 (Sth

ae a ees aap ewieeere 34

Williams v. United States, 404 F.2d 493

A eee ebe hare 37

U.S. Constitution

ee ks v6 kp hub aes ok ee a Re

I a Ss cee NE h eae iewes 3,4

i ee ee tk an here eae 3

-Viii-

LIST OF AUTHORITIES CONTINUED

Page

To. Oe ae 5 eee ..4

Federal Rules of Criminal Procedure Rule 41....... 3,6, 7, 41

-ix-

IN THE SUPREME COURT OF THE

UNITED STATES

TERM 1979

NO.

JEFF H. DUPUIS;

BERNIS H. DAVISON:

JOHN ZERBF” and

WILBUR L. SMITH

Petitioners

VERSUS

STATE OF LOUISIANA

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF LOUISIANA

Petitioners pray that a Writ of Certiorari issue to review the

Judgment of the Supreme Court of Louisiana, entered Decem-

ber 13, 1979, rehearing denied January 28, 1980, refusing to

overrule a decision of the Trial Court denying Petitioners’

Motion to Suppress Evidence.

CITATION TO OPINION BELOW

The opinion of the Supreme Court of Louisiana in State of

Louisiana v. Dupuis, et al is reported at 378 S.2d 934 (La.,

1979) and is set out in Appendix &, attached hereto.

¥ a tea Sobin RR. Faskon

JURISDICTION

The Judgment of the Supreme Court of Louisiana as it

pertains to Petitioners was entered on December 13, 1979, and

a timely Petition for Rehearing was denied on January 28,

1980. Petitioners sought and obtained from this Honorable

Court an Order extending the time to file a Petition for a Writ

of Certiorari to and through June 26, 1980. (See Appendix 2,

attached hereto).

Jurisdiction of this Court is invoked under 28 U. S. C. Sec-

tion 1257 (3), Petitioners having asserted below and they

assert in this Court deprivation of rights secured by the Con-

stitution of the United States of America.

QUESTIONS PRESENTED

1. Whether the lower Courts erred in concluding that

persons residing in a rural community whose property in-

cluded cultivated farm land lack a reasonable expectation that

Federal and State Law Enforcement Officers will not, in the

nighttime, surreptitiously, trespass upon their land and observe

activities in the yard and driveway of their private residence

from the cultivated protions of that private property and

driveway.

2. Whether the lower Courts erred in their analysis of

“curtilage”, in their conclusion that the concept of “‘curtilage”

was controlling in a determination of Petitioners’ ‘‘zone of

privacy’’, and in their conclusion that the observed activities

of Petitioners were outside of the “‘cutilage’’ surrounding their

residence.

3. Whether the lower Courts erred in their finding that

the officers comprising the Federal - State Task Force, hidden

on private property owned by Petitioners, had probable cause

sufficient to justify their warrantless seizure of vehicles also

2.

‘w

located on private property and to justify ultimate warrantless

search of those vehicles.

4. Whether the lower Courts erred in finding that the

warrant requirement of the Constitution of the United States

was not violated when law enforcement officers: a) seized

and b) searched trucks located on private property when there

was no indication that the vehicles were immediately to be

moved and when law enforcement officers were available and

had more than adequate time and facilities to obtain a warrant

prior to movement or to stop the vehicles if they were placed

in motion before ever reaching public highways.

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

This case involves the following Amendments to the Consti-

tution of the United States:

Amendment IV.

“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 Affirmatic., and particularly describing the

place to be searched, and the persons or things to be

seized.”

Amendment XIV. 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 the citizens

of the United States; nor shall any State deprive any

a’

person of life, liberty or property, without due process

of law; nor deny to any person within its jurisdiction

the equal protection of the laws.”

This case also involves the following provisions of the Consti-

tution of the State of Louisiana of 1974:

Article 1, Section 2

DUE PROCESS OF LAW

“No person shall be deprived of life, liberty, or proper-

ty, except by due process of law.”’

Article 1, Section 5

RIGHT TO PRIVACY

“Every person shall be secure in his person, property,

communications, houses, papers, and effects against

unreasonable searches, seizures or invasions of privacy.

No Warrants shal! issue without probable cause sup-

ported by Oath or Affirmation, and particularly describ-

ing the place to be searched, the persons or things to

be seized, and the lawful purpose or reason for the

search. Any person adversely affected by a search or

seizure conducted in violation of this Section shall

have standing to raise its illegality in the appropriate

Court.”

This case also involves the following Federal Rule of Criminal

Procedure:

Rule 41

Rule 41. Search and Seizure

(a) Authority to Issue Warrant. - A search warrant authorized

-4-

by this rule may be issued by a federal magistrate or a judge

of a state court of record within the district wherein the prop-

erty or person sought is located, upon request of a federal law

enforcement officer or an attorney for the government.

(b) Property or Persons Which May Be Seized with a Warrant. -

A warrant may be issued under this rule to search for and seize

any (1) property that constitutes evidence of the commission

of a criminal offense; or (2) contraband, the fruits of crime.

or things otherwise criminally possessed; or (3) property de-

signed or intended for use or which is or has been used as the

means of committing a criminal offense; or (4) person for

whose arrest there is probable cause, or who is unlawfully

restrained.

(c) Issuance and Contents.

(1) Warrant Upon Affidavit.- A warrant other then a war-

rant upon oral testimony under paragraph (2) of this subdi-

vision shall issue only on an affidavit or affidavits sworn to

before the federal magistrate or state judge and establishing

the grounds for issuing the warrant. If the federal magistrate

or state judge is satisfied that grounds for the application

exist or that there is probable cause to believe that they exist,

he shall issue a warrant identifying the property or person to

be seized and naming or describing the person or place to be

searched. The finding of probable cause may be based upon

hearsay evidence in whole or in part. Before ruling on a re-

quest for a warrant the federal magistrate or state judge may

require the affiant to appear personally and may examine under

oath the affiant and any witnesses he may produce, provided

that such proceeding shall be taken down by a court reporter

or recording equipment and made part of the affidavit. The

warrant shall be directed to a civil officer of the United States

authorized to enforce or assist in enforcing any law thereof

or to a person so authorized by the President of the United

States. It shall command the officer to search, within a speci-

fied period of time not to exceed 10 days, the person or place

&.

named for the property or person specified. The warrant shall

be served in the daytime, unless the issuing authority, by

appropriate provision in the warrant, and for reasonable cause

shown, authorizes its execution at times other than daytime.

It shall designate a federal magistrate to whom it shall be return-

ed.

(2) Warrant upon oral testimony.-

(A) General Rule.- If the circumstances make it reason-

able to dispense with a written affidavit, a Federal Magis-

trate may issue a warrant based upon sworn oral testi-

mony communicated by telephone or other appropriate

means.

(B) Application.-The person who is requesting the

warrant shall prepare a document to be known as a dupli-

cate original warrant and shall read such duplicate origi-

nal warrant, verbatim, to the Federal magistrate. The

Federal magistrate shall enter, verbatim, what is so read

to such magistrate on a document to be known as the

original warrant. The Federal magistrate may direct

that the warrant be modified.

(C) Issuance.- If the Federal magistrate is satisfied that the

circumstances are such as to make it reasonable to dis-

pense with a written affidavit and that grounds for the

application exist or that there is probable cause to believe

that they exist, the Federal magistrate sahll order the

issuance of a warrant by directing the person requesting

the warrant to sign the Federal magistrate’s name on the

duplicate original warrant. The Federal magistrate shall

immidiately sign the original warrant and enter on the

face of the original warrant the exact time when the

warrant was ordered to be issued. The finding of prob-

able cause for a warrant upon oral testimony may be

based on the same kind of evidence as is sufficient for

a warrant upon affidavit.

(D) Recording and certification of testimony.- When

a caller informs the Federal magistrate that the purpose

of the call is to request a warrant, the Federal magistrate

shall immediately place under oath each person whose

testimony forms a bsis of the application and each person

applying for that warrant. If a voice recording device

is available, the Federal magistrate shall record by means

of such device all of the call after the caller informs the

Federal magistrate that the purpose of the call is to request

a warrant. Otherwise a stenographic or longhand ver-

batim record shall be made. If a voice recording device

is used or a stenographic record made, the Federal magis-

trate shall have the record transcribed, shall certify the

accuracy of the transcription, and shall file a copy of the

original record and the transcription with the court. If

a longhand verbatim record is made, the Federal magis-

trate shall ‘ile a signed copy with the court.

(E) Contents. -The contents of a warrant upon oral

testimony shall be the same as the contents of a warrant

upon affidavit.

(F) Additional rule for execution. -The person who

executes the warrant shall enter the exact time of execu-

tion on the face of the duplicate original warrant.

(G) Motion to suppress precluded. -Absent a finding

of bad faith, evidence obtained pursuant to a warrant

issued under this paragraph is not subject to a motion to

suppress on the ground that the circumstances were not

such as to make it reasonable to dispense with a written

affidavit.

STATEMENT OF THE CASE

This is a Petition for a Writ of Certiorari to review the Judg-

ment of the Supreme Court of Louisiana, entered December 13,

1979, rehearing denied January 28, 1989, affirming the con-

viction of Petitioners, JEFF H. DUPUIS, BERNIS H. DAVI-

SON, JOHN ZERBE, and WILBUR L. SMITH.

Petitioners, with others, were charged by Bill of Information

with Possession of Marijuana with Intent to Distribute, a viola-

tion of Louisiana Revised Statutes 40:966 (a). The charge

resulted from a warrantless seizure and search of trucks lo-

cated on private property owned by Petitioners, JEFF H.

DUPUIS and BERNIS H. DAVISON. The seizure and search

was carried out by a joint task force consisting of United

States Government Agents and Louisiana State Police, which

operation was under the primary control of agents of the

United States Government.

The Petitioners filed a Motion to Suppress Evidence attack-

ing the seizure and search. An Evidentiary Hearing was com-

menced on December 12, 1978, and was concluded on Decem-

ber 15, 1978. That Hearing revealed the following:

On June 15, 1978, at approximately 3:00 o’clock, P.M.,

a joint task force of the United States Customs Air Officers

and Louisiana State Police commenced a surveillance of a rural

residential compound, including a house and mobile home,

which is the home of the families of Petitioners, JEFF H.

DUPUIS and BERNIS H. DAVISON. Dupuis lives in the house

with his wife and their children and grandfather, and Davison

and his wife live in the mobile home near the Dupuis house.

This residential compound, including its environs, is bounded

on the west by Louisiana State Highway 349; on the north

by the Parish Road; and on the east and south by the edge of

plowed fields of growing sugar cane. The field to the south

is included in the Dupuis property. (Transcript, Pages 500 - 503;

506 - 510; 519; 520; 522; 523; 529; 537; Exhibits S -1, D - 5,

.

6, 7, 16, 17, 18, 18A). *

The daylight activities of the joint governmental task force

were limited to “roving surveillance’ from vehicles operating

on the two public highways which formed the north and west

borders of the Dupuis property. The roving surveillance consis

ted of officers driving by the property to briefly observe what,

if any, activity was taking place. (Transcript, Pages 343 - 345;

565; 647; 648; 668).

About 7:30 P.M., as darkness fell, United States Customs

Air Officer Wade and Louisiana State Trooper LeJeune Pro-

ceeded together on foot from the Parish Road which was the

north boundary of the Dupuis property through the sugar cane

and surreptitiously secreted themselves in the cane field im-

mediately south of the Dupuis residence. The law enforcement

officers moved about within the Dupuis property from time to

time. (Transcript, Pages 432; 437; 439; 443 - 448; 451; 475;

567; 568; 572; 577; 578; 593; 594: 595: 641; 642).

The outer boundaries of the Dupuis property were clearly

defined by a gully on the south, the Parish Road on the north

and a fence along Highway 349 on the west side. (Transcript,

Pages 439; 443 - 446; 520; 522; 532; 534 - 535; 541 - 542;

577; 578; 593 - 595). Officers testified that at all times their

on - foot surveillance activities were conducted from within

these boundaries, but they indicated that they were not at all

concerned with the possibility of being on private property or

on the Dupuis property. While the officers were generally lo-

cated approximately 25 to 40 yards south of the Dupuis house,

at least once, Louisiana State Police Officer LeJeune crept to

the edge of the cane, approximately ten (10) yards from the

house. (Transcript, Pages 380 - 382; 439; 443 - 446; 446 - 448;

475; 532; 534 - 535; 541 - 542; 567; 568; 572; 577 - 579;

593; 595: 607 - 608; 641 - 642).

During the evening, Officers Wade and LeJeune observed

-9-

=~

the Petitioners having a barbeque in the Dupuis’ back yard.

Meanwhile, three (3) trucks, an 18 wheel trailer and two (2)

Bobtail trucks, remained stationary within the Dupuis family

residential compound. (Transcript, Pages 451; 482; 567).

At some time betweem 11:15 and 11:30 P.M., Officers

Wade and LeJeune observed the barbeque come to an end

and the light in the barbeque area go out. Shortly thereafter,

a car drove into the driveway. Then, the Officers heard the

refrigeration unit on the 18 wheel trailer go off. At that time,

through the use of infra-red and star light night viewing equip-

ment, the Officers observed various persons, who could not

be identified, approached the truck. Thereafter, the 18 wheel

trailer was moved a distance of approximately 3 to 4 feet and

parked on the shell driveway. One of the Bobtail trucks was

then backed up to the rear of the 18 wheel trailer. Officer Wade

testified that at that time, when the rear doors of the 18 wheel

trailer were opended to allow the Bobtail truck to be backed

flush to the trailer, he saw large bales of an unknown substance

inside the trailer which he immediately assumed to be mari-

juana. He advised his superior, Customs Air Officer Joachim,

by radio, that he saw “large bales”. Officer Wade begrudgingly

admitted that he could not confirm, by any objective standard,

his suspicion that the bales contained marijuana. Officer Wade

failed to detect the telltale odor of Marijuana, notwithstanding

the fact that the refrigeration equipment on the trailer was

off, which, if on, would have diminished any such odor. Of-

ficer Wade further admitted that he failed to observe inside

any of the bales and saw no gleanings of marijuana or other

green vegetable matter, even with the use of his sophisticated

visual aids. Finally, Officer Wade admitted that he could not

discern the wrappings on the bales, but based his suspicions

on their shape and size which subsequently he admitted were

identical to commercially purchased bales of peat moss. Of-

ficer Wade admitted that because of his pre-conceived sus-

picions, he expected to see marijuana when the bales were

-10-

opened. (Transcript, Pages 470 - 484).

Officer LeJeune, the other officer conducting the onsite

surveillance, indicated that the bales were not observed until

the first Bobtail truck was pulling away from the 18 wheel

trailer after having been unloaded. Officer LeJeune also ac-

knowledged that he failed to smell the odor of marijuana,

see inside the bales or detect the presence of marijuana glean-

ings or other green vegetable matter. Officer LeJeune admitted

that since he was expecting the substance to be marijuana,

he did not pause to consider whether the packages might have

contained anything else. Transcript, pages 570; 578; 584;

585; 590).

A United States Customs Air Officer (Joachim) contacted

United States Magistrate Herbert for the purpose of obtaining

a Telephonic Search Warrant, in accordance with Federal Rules

of Criminal Procedure 41 (c) (2). The State conceded, however,

that the issues to be presented to the Court at the Hearing on

the Motion to Suppress Evidence involved a warrantless search

because the “Affidavit” presented to the Magistrate for the

purpose of obtaining that Warrant contained undisclosed hear-

say and speculation, not revealed to the Magistrate, (Transcript,

Pages 349, 350, 351, 352, 353, 357, 358 - 360; 415; 419;

422 - 424; 426 - 428 and further contained out - and - out

false statements (Transcript, Pages 347; 361; 362; 382; 478;

488) Additionally, the Magistrate and requesting officers totally

failed to comply with the requirements of Rule 41 (c) (2) of

the Federal Rules of Criminal Procedure. (Transcript, Pages

195 - 198; 330; 331; 366; 374; and 375). In addition, the

United States Magistrate in question admitted during a Hearing

on the Motion to Suppress Evidence that the Search Warrant

itself was substantially altered several hours after it had been

issued and executed upon by expanding the description of the

premises to be searched and inserting the words, ‘“‘the vehicles

located” and further by adding a description of property to

be searched for with the words, ‘‘or other contraband.” (trans-

eas

cript, Pages 306 -309).

The Trial Court declined to invalidate the seizure and search

and denied Petitioners’ Motion to Suppress Evidence. (Trans-

cript, Pages 745 - 764). Thereafter, Petitioners entered pleas

of guilty as charged, with reservation of their rights to appeal

the Trial Court’s denial of their Motion to Suppress Evidence.

(Transcript, Pages 766 - 797). As a result of those pleas, the

Trial Court sentenced each of the Petitioners to pay fines of

FIFTEEN THOUSAND ($15,000.00) DOLLARS, plus Court

costs, and in default in payment of said fines, to serve TWO

(2) YEARS at hard labor with the Louisiana Department of

Corrections and futher that they be sentenced each to serve a

term of THREE (3) YEARS at hard labor with the Louisiana

Department of Corrections. (Transcript, Page 797).

Petitioners unsuccessfully appealed their conviction and

the refusal of the Trial Court to uphold their Motion to Sup-

press Evidence to the Louisiana Supreme Court.

FEDERAL QUESTIONS RAISED AND DECIDED BELOW

I.

Prior to Trial, Petitioners moved to suppress the evidence

seized, and they based that motion upon the Fourth Amend-

ment to the United States Constitution.

Il.

As a basis for Petitioners’ Motion to Suppress Evidence,

they contended that as residents in a rural community with

property including cultivated farm land, they had a reasonable

expectation that Federal and State Law Enforcement Officers

would not, in the nighttime, surreptitiously, trespass upon

their property and observe their activities in the yard and

driveway of their private residence, from cultivated protions

ay.

of their private property and driveway, and they contended that

these activities were direct violations of their rights as guarante-

ed by the Fourth Amendement to the Constitution.

In the Courts below, petitioners contended that the concept

of “curtilage” is no longer controlling in a termination of

Petitioners’ “zone of privacy” as protected by the Fourth

Amendment to the United States Constitution and they further

contended that, nevertheless, the activities in which Petitioners

were engaged and which law enforcement officers observed

from Petitioners’ private property were conducted from with-

in a Constitutionally protected ‘“‘zone of privacy”’.

IV.

In the Courts below, Petitioners contended that the Fourth

Amendment to the United States Constitution was violated by

law enforcement officers in the conduct of a warrantless sei-

zure and search of trucks located on private property when

there was no indication that the vehicles were immidiately

to be moved and when law enforcement officers were available

and had more than adequate time and facilities to obtain a

Warrant prior to the movement or stop the vehicles if they

were placed in motion before ever reaching public highways.

v.

In the Courts below, Petitioners contended that Federal

and State Law Enforcement Officers lacked the ‘probable

cause”’ required by the Fourth Amendment to the United

States Constitution for the conduct of a seizure and search

upon Petitioners’ private property.

-13-

ARGUMENT AND REASONS FOR GRANTING THE WRIT

1. This Court should grant Certiorari to consider whether

persons residing in a rural community, whose property

includes cultivated farm land, have a reasonable expecta-

tion that Federal and State Law Enforcement Officers

will not, in the nighttime, surreptitiously, trespass and

observe activity in the yard and driveway of that private

residence from cultivated portions of that private

property and driveway, and whether such activities on

the part of Federal and State Law Enforcement Officers

constitute a direct violation of Fourth Amendment

Rights.

In Rakas v. Illinois, 439 U.S. 128; 99 S. Ct. 421; 58 L. Ed.

2d 387 (1962), this Honorable Court discussed the “legitimate

expectations of privacy” and the manner in which they must

be defined. At footnote 12, 99 S. Ct. at 430, Justice Rehnquist,

in effect, explained that the notion of private property rights

is not dead in an inquiry as to expectations of privacy. At

99 S. Ct. 431, footnote 12, Justice Rehnquist declared:

Legitimation of expectations of privacy by law must

have a source outside of the Fourth Amendment, either

by reference to concepts of real or personal property

law or to understandings that are recognized and per-

mitted by society. One of the main rights attaching to

property is the right to exclude others, see W. Blak-

stone, Commentaries, Book II Ch. I and one who

owns or lawfully possesses or controls property will

in all likelihood have a legitimate expectation of privacy

by virtue of this right to exclude...

But by focusing on legitimate expectations of privacy

in Fourth Amendment jurisprudence, the Court has

not altogether abandoned use of property concepts in

determining the presence or absence of the privacy

interests protected by that Amendment.

-14-

A search conducted without a Warrant, as in the case before

this Court, is, per se, unreasonable, under the Fourth Amend-

ment to the United States Constitution, subject only to a few

specifically established and well-delineated exceptions. Cooli-

dge v. New Hampshire, 403 U.S. 443, 454 - 455 (1971), 91

S. Ct. 2022; 29 L. Ed. 2d 564. It is fundamental that obser-

vations made by law enforcement officers which form the

basis of a seizure and search must be made by officers who

have a right to be where they are. Coolidge v. New Hampshire,

Supra. United States v. Johnson, 541 F.2d 1311, 1316 (8th

Cir., 1976); United States v. Bradshaw, 490 F.2d 1097, 1100

(4th Cir., 1974). In Katz v. United States, 389 U.S. 347, 88

S. Ct. 507, 19 L. Ed. 2d 576 (1967), this Court defined unlaw-

ful Fourth Amendment intrusion. This Court proclaimed a

“zone of privacy” within which a citizen has a reasonable

expectation of privacy. If a government agent has intruded

into a person’s “‘zone of privacy’’, such intrusion must have

been justified by a “warrant for another object, hot pursuit,

a search incident to a lawful arrest, or some other legitimate

reason for being present, unconnected with a search directed

against the accused.” Otherwise, the results of the search

do not fall within any legitimate exception. Coolidge, 403

USS. at 446.

That an unjustified visual intrusion into the zone of privacy

violates the Fourth Amendment is well settled in the Fifth

Circuit. Texas v. Gonzales, 388 F.2d 145 (Sth Cir., 1968);

Brock v. United States, 223 F.2d 681 (Sth Cir., 1955). In

Rakas, Supra, this Court has clearly established that concepts

of property ownership and control continue to weigh heavily

in a determination of the ‘‘zone of privacy” described in Katz.

See 439 U.S. at 143 and 144, footnote 12. The facts before this

Court reveal that the “zone of privacy’? which was violated

consisted both in the location and circumstances of the trucks

and in the location and the circumstances of the officers making

observations.

-15-

In the case before this Court, Petitioners exhibited a reason-

able expectation of privacy by conducting their activities

behind their residence, on their private driveway, away from

public roads, within closed trucks, and in a manner which per-

mitted no observation except by someone crawling through

a sugai cane field (three feet high) owned by one of the Defen-

fendants under the cover of darkness. Such ‘“‘gymnastics’’ as

described by these officers in order to observe the Defendants

have been disapproved by the Supreme Court of the State of

Louisiana in such cases as State v. Lamartiniere, 362 So. 2d

526 (La., 1978).

The simple and bold fact remains that the officers con-

ducting the surveillance in question had no right to be where

they were. The Supreme Court of Louisiana, in the instant

case, has recognized that the officers were, in fact, trespassing

upon private property owned by Petitioners. State v. Dupuis,

378 So. 2d at 837).

The effect of the ruling of the Louisiana Supreme Court

in the instant case would be to give to owners of rural property

no expectation of privacy at all, if they happen to grow sugar

cane, or some other crop adjacent to the land upon which

their actual residence is located. It must be remembered that

the observations which were conducted here were absolutely

surreptitious in nature, carried out in total blackness, and

aided by the use of sophisticated night viewing equipment.

State v. Dupuis, 378 So.2d at 937). It is suggested that one

has an even greater right to expect privacy and to expect

that persons will not be trespassing in his fields at night than

he does during the daytime.

In United States v. David 423 F.2d 974 (Sth Cir., 1970), the

Court held:

-16-

Many cases involving the ‘plain view doctrine’ concern

evidence recovered from automobiles locate. in public

places. The rule lends itself to application in these

situations because the observing officer is not required

to trespass on private property in order to have a clear

view of the articles inside the automobile. (Cites omit-

ted). However, where police officers trespass in order

to secure the view, we have not hesitated to find a

search.

The foregoing language was cited approvingly in United

States v. Holmes, 521 F.2d 859 (Sth Cir., 1975), where the

Court ruled that “when a law enforcement agent trespasses

solely to unearth evidence of a crime, he has no ‘right to be

in the position to have that view”. Jd. 869. In that case, as in

the case here, the agent making the observation ‘‘admitted that

his sole purpose in getting close enough to peer into the (object

of the search) was to look for marijuana.”

In the case at bar, surveilling officers were neither in an

unprotected area nor in a protected area with prior justi-

fication. Whether they were on the Dupuis property (as they

admittedly were), or on someone else’s property without per-

mission, they acknowledged that they recognized that they

were on private property and that they had no permission to

be there. Thus, they had no prior justification to be where

they were and their threshold instrusion did not meet any

legitimate tests.

The Holmes case, Supra, also dealt with another issue square-

ly on all fours with the case at bar. In that case, the govern-

ment, while recognizing that an examination of property rights

is relevant to the dcicrmination of privacy interests, argued,

as the Trial Court in the instant case held, that the Defendants

had exhibited no reasonable expectation of privacy because

it.

“no fences enclose any part of the property, and no ‘no tres-

passing’ signs were posted, and there was not proof of special

attempts to conceal the marijuana from any ‘passerby’”’.

Id, at 869, 870. The Court of Appeals responded as follows:

The government would have us ignore the character

of the (Defendants) property. Whatever precautions

a homeowner in an urban area might have to take to

protect his activity from the senses of a casual passer-

by, a dweller in a rural area whose property is sur-

rounded by extremely dense growth, need not antici-

pate that government agents will be crawling through

the underbrush by putting up signs warning the govern-

ment to keep away. Jd. at 870.

See also Brock v, United States, 223 F.2d 681 (Sth Cir., 1955).

The decision of the lower Courts in the instant case can lead

only to the conclusion that a rural dweller is afforded less

Constitutional protections for his zone of privacy than an

urban dweller.

The logic of the Holmes rationale as given above, was recogni-

zed in Phelan v, Superior Court of Mariposa County, 151 Cal.

Rptr., 599, 603 (Ct. App. 1979) where a California Court

emphatically stated, ‘‘Nor does the absence of boundary fences

or ‘no trespass’ signs of itself negate Petitioner’s objective

expectations of privacy.” It cannot be said, therefore, that

Petitioners did not display a reasonable expectation of privacy

which was improperly violated by the instant search.

Moveover, when a “plain view’’ of evidence is obtained

during an unlawful search, the “plain view’’ doctrine can never

be used to justify the seizure of that evidence. State v. Watkins,

237 N.W. 2d 14 (S.D. 1975); Commonwealth v, Myers, 361

-18-

A 2d 884 (Pa. 1976). For law enforcement officers to see

contraband from a place where they have a right to be, the

initial intrusion must have been lawful and legitimate. People v,

Walker, 64 Mich. App. 138, 235 N.W. 2d 85 (1975); In Re

Brewer, 24 Ill, App. 3rd 330, 320 N.E. 2d 340 (1974). The

following language is pertinent:

“We believe that where the centry onto premises on the

part of a law enforcement officer is illegal ab initio,

we cannot apply the plain view doctrine . . . It is well

established that an unlawful search upon an illegal entry

cannot be justified by what is found in the search,

(citation omitted) and it seems reasonable that this

rationale should also be applied to the plain view

doctrine. In other words, the plain view doctrine was

not applicable unless (the officer) was on a part of the

premises to which the general public was allowed

access. Such was not the case... . The record revealed

that the premises were not public in nature and the

State has failed to make a showing that the situation

was of such emergency nature as to excuse the procure-

ment of a search warrant. People v. Clark Memorial

Home, 114 Ill. App. 2d 249, 252 N.E. 2d 546, 548

(1969).

In a New York case, the Court recited the lack of exigencies

to justify a police investigator’s surveillance without a warrant.

There, as here, the enforcement officer’s entry onto the prem-

ises was not incident to a lawful arrest. Nor was he engaged

in hot pursuit or motivated by the need to prevent loss of

evidence:

But having failed to obtain a warrant where no exigent

circumstances were present, the investigator's position

-19-

in the defendant’s back yard was unlawful, thereby

rendering his ‘Plain view’ constitutionally infirm.

People v, Abruzzi, 52 A.D. 2d 499, 385 N.Y.S. 2d

94, 97 (App. Div. 1976).

In Abruzzi, the police investigator, without a warrant, position-

ed himself in a doctor’s back yard where he could observe an

undercover policewoman in an examining room or a doctor who

was suspected of committing sexual misconduct with female

patients. Quite unexpectedly, the investigator observed the

doctor with a female patient in another examining room, which

led to the doctor’s conviction of sexual abuse in the first de-

gree. The Abruzzi Court concluded that, granted such initial

illegality, all the fruits of the search must be suppressed:

In applying these maxims to the appeal at bar, we hold

that the independent act of the defendant in engaging

in a course of criminal conduct not anticipated by the

trespassing investigator, is out-weighed by the severity

of the constitutional violation inherent in the initial

abuse of the defendant’s reasonable expectation of

privacy. (Cf. Katz v. United States, Supra.) This kind of

search conducted by the police investigator without a

warrant, must be declared to be invalid in all respects.

385 N.Y.S. 2d at 97.

In the case at bar, it cannot be said that the Petitioners did not

display reasonable expectation of privacy which was improper-

ly violated by this visual search.

The actions of law enforcement officers cannot be justi-

fied on the contention that the Petitioners “knowingly ex-

posed” their trucks to public view. A private residence, within

an open field, is similarly “‘exposed to public view” but the

location of that residence does not permit a visual entry into

-20-

the residence under any doctrine. Here, the presence of closed

vehicles does not justify a similar visual intrusion into the in-

terior of the trucks, a Constitutionally protected area.

It cannot be suggested that Petitioners “knowingly exposed”’

the contents of the enclosed trucks to “public view’’, It is clear

that only a limited glimpse or view of the interior of these

trucks was acquired, and that was accomplished only through

the highly secretive and sophisticated efforts of Federal and

State Narcotics Officers, hidden on private property with no

prior justification. (Transcript, Pages 432; 437; 439; 443 - 448;

451; 475; 567; 568; 572; 577; 578; 593; 594; 595; 641; 642.)

Nor can it be contended that officers might just as well have

set up their night time observation of the three trucks from any

of the public roads in the vicinity. Such a contention does not

in any way justify the establishment of surveillance by those

officers from private property without prior justification.

Moreover, had the officers conducted their surveillance from

public roads, they could not have seen into the interior of the

trucks. There was no contention made and, indeed, the record

completely negates the idea that the contents of the trucks in

question could have been observed from any public road in

the vicinity. As a matter of fact, an examination of the photo-

graphs and exhibits in the record of this proceeding will clearly

indicate that such observations would have been impossible.

The fact that the surveilling officers were required to move to

within fifteen or twenty ywrds of the trucks in order to confirm

their sighting corroborates the conclusion that they were

not mere “inadvertent”’ visual sightings.

The mere ability to observe the presence of closed vehicles in

a private driveway from a public road does not justify surrepti-

-91-

tious visual intrusion within the inside of those vehicles. It is

apparent that the officers in question were not content to

continue the “drive-by”’ of the premises or to conduct periodic

overflights of the area. If the sole purpose of the observations

by government agents was to determine when and where the

vheicles would head, it is apparent that such ‘“‘drive-bys” and

overflights, coupled with the admitted presence of a multi-

tude of police officers securing every road leading from the

premises, were more than ample to accomplish that limited

purpose. Instead, a special team of Federal and State officers

secreted themselves on private property, within a few yards

of the residence and the trucks parked on a private driveway,

and conducted an intensive visual search of the area and of the

interior of the trucks, utilizing sophisticated night viewing

equipment, binoculars, etc. A claim that these activities were

aimed solely at detecting movement of the vehicles in question

is specious and should be summarily rejected.

The mere existence of an object in “plain view’’ does not,

by itself, justify its seizure without a Search Warrant, absent

the narrow exceptions established by jurisprudence. That the

police officers who conducted the search under attack in the

instant case completely ignored that principle is evident in

the following statement by Trooper Trahan, in charge of the

joint operation for the State of Louisiana, appearing at Page

632 of the Transcript:

A.Well, when I had that information there, I told Rick - -

I said, ‘let’s hit them.’ He said, ‘Well, no, let’s get a

warrant.’ I said, ‘We don’t need a warrant. We got all

the probable cause in the world. You got two agents

setting in the field; you’ve got plain view; they saw the

bales in the truck; they heard the bales being set on the

surveyor. We don’t need no search warrant .. ’

-22-

Nor can the “‘open field’’ exception justify this initial war-

rantless search. This doctrine was first enunciated in Hester v.

United States, 265 U.S. 57, 44S. Ct. 445, 68 L.Ed. 897 (1924)

in which revenue officers examined abandoned moonshine

jugs on the land of the father of defendant. Recent cases

have held Hester to be inapplicable in light of Katz v. United

States, Supra and instead have resolved the question, not on

strict property issues, but instead upon the “‘reasonable expecta-

tion of privacy’. Cf. Patler v. Slayton, 503 F.2d 472, 477

(4th Cir. 1974); United States v, Perez, 440 F. Supp. 272,

287 (Ohio, 1977); United States v, Freie, 545 ; F.2d 1217,

1223 (9th Cir, 1976); State v. Byers, 359 So. 2d 84 (La. 1978).

As indicated in Freie, ‘Hester no longer has any independent

meaning but merely indicates that open fields are not areas

in which one traditionally might reasonably expect privacy.”

545 F.2d at 1223.

These Petitioners had not abandoned marijuana in the

middle of an unattended, uncultivated open field. Instead,

their activities were being conducted in complete privacy, with-

in enclosures which one could reasonably expect to exclude

scrutiny by the average “passer-by”. Thus’ the Hester ex-

ception is totally inapplicable. Even if the pre-Katz notion

of “open fields” were applied, that doctrine has never authori-

zed an intrusion into a protected area (in this case, the Peti-

tioners’ driveway). Instead, in all of the traditional ‘‘open

fields” cases, the objects searched were actually in anopen

field. Cf. United States v. Brown, 473 F.2d 952 (Sth Cir.,

1973) and United States v. Hollon, 420 F.2d 302 (Sth Cir.,

1970), both cited by the Trial Court in support of its ruling in

the instant case.

Here, Petitioners conducted their activities behind their

residence so that they could not be observed from the public

road and with full and reasonable expectations of privacy.

Considering the Petitioners were on a tract of land owned by

them and out of view of public roads, there is nothing more

that they could have accomplished to maintain the privacy of

their activities, under the circumstances.

In Olmstead v, United States, 277 U.S. 438 (1928). the

Supreme Court set forth the trespass doctrine as a triggering

device for Fourth Amendment protection. Some years later,

the Court “‘began to move away from basing its decisions on

the protection of privacy was at the heart of the Fourth A-

mendment’s proscriptions. Miraldi, The Relationship Between

Trespass and Fourth Amendment Protection After Katz v.

United States, 38 Ohio St. Law J. 709, 711 (1977). This move-

ment culminated with the Katz decision in 1967. The current

two-prong test for Fourth Amendment protection was set

forth in Justice Harlan’s concurring opinion in Katz:

(F) irst . . . a person (must) have exhibited an actual

(subjective) expectation of privacy and, second, ...

the expectation (must) be one that society is prepared

to recognize as “reasonable”. 389 U.S. at 361.

Although some decisions have implied that Katz overruled

the trespass doctrine, that conclusion is in error, as has been

noted by this Honorable Court in Footnote 12, Rakas, Supra.

As the Sixth Circuit declared in United States v. Carriger,

541 F.2d 545, 550 (6th Cir., 1976):

“We believe that the Supreme Court’s determination

that the “trespass” doctrine could “no longer be regard-

ed as controlling’? was intended to expand the pro-

-24.

tection afforded by the Fourth Amendment. Certain-

ly, that was the effect in Katz where the Court found

an illegal search and seizure even though no trespass

was committed by FBI agents. Accordingly, we are

of the view that Katz, considered with the case law

before it, should be read as holding that trespassing is

one form of intrusion by the government that may

violate a person’s reasonable expectation of privacy.

Although we do not hold today that any evidence

gained as a result of a federal agent’s trespass con-

stitutes an illegal search and seizure, we believe it is

helpful to rely on property concepts “simply because

they assist in establishing the perimeters of the Fourth

Amendment guarantees as they relate to the home.”

Fixel v. Wainwright, 492 F.2d 480, 483, n. 3 (5th Cir.

1974).

Under this analysis, it is manifestly clear that an illegal search

and seizure was committed in the case at bar. Petitioners’

reasonable expectation of privacy is clearly violated by the

tresspassing of the law enforcement authorities upon the private

property of one of the Petitioners. Officers secreted themselves

within a few yards of Petitioners’ residence and their trucks

which were parked on their private driveway. From there,

these officers conducted an intensive visual search of the area

and of the interior of the trucks, using sophisticated night-

viewing equipment.

Nor can this intrusion be excused as a mere “technical

trespass” under any of the meanings of that term:

First, a trespass may be technical if the officer has

moved only a short distance from a place in which

he has a right to be. Second, a trespass may be techni-

S

cal if the defendant fails to take precautions to make

the premises private. Third, if the officer could have

seen the incriminating evidence equally well from a

place where he had a right to make a view, the trespass

is technical. 38 Ohio St. Law J. 709, 721 - 722 (1977).

In the instant case, officers had penetrated the Dupuis property

and advanced as close to the residential compound as possible;

the Petitioners took all possible precautions to keep their

activities private, and the view of the incriminating evidence

could not have been attained from the private road, which is

the only place where the officers had a right to be.

The Fifth Circuit has sustained the validity of the trespass

doctrine in United States v. Davis, 423 F.2d 974 (Sth Cir.,

1970), Cert. Denied, 400 U.S. 836 (1970), a post- Katz de-

cision. See also Fixel v. Wainwright, 492 F.2d 480 (Sth Cir.,

1974) where the trespass doctrine was applied to the common

fenced - in backyard of a four unit apartment complex. Both

decisions stressed the sanctity of the home and the right to be

left alone.

The most recent expression of this Court’s vigorous pro-

tection of the sanctity of the home and private property ap-

pears in Payton v. New York, (No. 78-5420) (1980) and Rid-

dick v. New York, (No. 78-5421) (1980) in which it has held

that the Fourth Amendment to the United States Constitution

prohibits iaw enforcement officers from making warrantless

and nonconsensual entries into a home in order to accomplish

an arrest, even where probable cause exists, absent an emer-

gency situation. The language of Justice Stevens, speaking

for the majority of the Court, reaffirms this Court’s reverence

for the sanctity of the home. Petitioners submit that that

sanctity extends to all of the private property which a rural

26.

dweller calls his “‘home’’, as in the case at bar.

It has been explained in 38 Ohio St. Law J. at 729, that

“if, . . . the officer entered the property looking solely for

evidence of crime, then the officer’s presence constitutes

a search within the proscription of the Fourth Amendment.”

Citing United States v. Holmes, 521 F.2d 859 (5th Cir., 1975).

This situation describes the facts of the case at bar. Officers

herein secreted themselves on Petitioner Dupuis’ property

to watch of evidence of crime, a clear violation of the Fourth

Amendment ot the United States Constitution.

Petitioners had a reasonable expectation of privacy extend-

ing beyond the driveway and into the sugar cane fields. It is

patently illogical to conclude that where the plowed fields

began, Petitioners’ expectation of privacy ended, when they

were inside a privately owned truck located on a private drive-

way, just a few feet from the edge of the privately owned

sugar cane field, forming a part of the total residential com-

pound owned by Petitioners. As stated in People v. Weisen-

berger 216 P. 2d 1128 (Col. 1973):

“Even though the area of the search might have been

outside the curtilage, nevertheless, if it was a place

where the owner had a reasonable expectation of pri-

vacy, then it was a constitutionally protected area

where warrantless intrusions are forbidden under the

federal and state constitutions.” 516 P. 2d at 1129.

Accordingly, the Fourth Amendment protection extends to

all of defendants’ property. In the case at bar, Petitioners also

demonstrated a reasonable, justifiable expectation of privacy

within the rural Dupuis porperty. They, further, had taken

deliberate measures to ensure that their activities were pro-

e2ie

tected from detection by other persons by positioning the

trucks behind the residence, in such manner that no one on the

public road could observe the loading and unloading. Because

the evidence is the fruit of the unlawful search, it should prop-

erly have been suppressed.

To the same effect is Phelan v. Superior Court of Mariposa

County, 151 Cal. Rptr. 599 (Ct. App. 1979). There, the Defen-

dants cultivated a marijuana garden in an isolated narrow

ravine on foothill property they owned. The garden was pro-

tected in part by trees, in part by a chicken wire fence laced

with tree branches and shrubs, and by large rocks which made a

natural barrier on one side. Sheriff's officers engaged in sur-

veillance of the property and, from a vantage point atop a

rocky knob on the side of the hill, spotted the garden. Officers

verified their suspicions that the plants were marijuana with

the aid of binoculars. Officers continued their surveillance

on later dates and the defendants were subsequently arrested

for cultivation of marujuana. The warrantless search was held to

violate defendants’ subjective and objectively reasonable ex-

pectation of privacy:

‘“‘However, since petitioners took reasonable steps to

enclose their garden from the observation of others,

they echibited such a claim of privacy. That the en-

closure did not totally conceal the plants does not

foreclose a reasonable expectation of privacy; otherwise,

any discovery resulting from an officer’s exploratory

search would be lawful regardless of how flagrant or

purposeful the trespass. Only reasonable efforts to

secure privacy under all of the circumstances are re-

quired.

eee * *

-28-

As we have explained, the inquiry is not whether the

officers have violated a particular boundary line in

their searching but whether they have invaded the

defendants’ reasonable, exhibited expectation of pri-

vacy. ( Citation omitted). The expectation of privacy

defines the parameters of the right to search. (Citation

omitted). While the possessor of unfenced rural proper-

ty should anticipate the presence of occasional tres-

passers, the lack of boundary fences alone does not

foreclose a reasonable expectation of privacy as to a

particular area on the land such as the ravine, and en-

closed garden in the present case. We perceive no dif-

ference between fenced land and open land having

a particular enclosed area, insofar as the Fourth Amend-

ment is concerned. 151 Cal. Rptr. at 604, 606.”

It is also interesting to note the Court’s footnote on Page 606

to the effect that “ .. there is no basis for anticipating the

presence of police officers engaging in an exploratory search

for marijuana.” The Court concluded, as Petitioners respect-

fully contend this Court should conclude:

“By electing to engage in a surreptitious surveillance

from the adjoining owner’s property, the officers as-

sumed the risk of intruding into petitioners’ constitu-

tionally protected area of privacy. Having done so, the

search was illegal, regardless of the officers’ good

faith.” 151 Cal. Rpt. at 606.

See also State v. Wert, 550 S.W. 2d 1, and People v. Fly, 34

Cal. App. 3d 665, 110 Cal. Rptr. 158 (1973).

Similarly, where the sheriff flew a helicopter over the de-

fendant’s back yard to search out marijuana plants which

25.

were not visible from the road, defendant’s conviction for un-

lawful cultivation was reversed. The helicopter observation

amounted to a search without a warrant and an “‘unreasonable

governmental intrusion into the serenity and privacy of his

back yard” which could not be justified under theplain view

doctrine. People v. Sneed, 32 Cal. App. 3d 535, 108 Cal. Rptr.

146, 151 (1973). The helicopter was ‘“‘a seeking out, manifest-

ly in nature’’, just as was the search here.

Of additional pertinence here is the case of Lorenzana v.

Superior Court of Los Angeles County, 9 Cal. App. 3d 626,

108 Cal. Rptr. 585, 511 P.2d 33 (1973). There, the California

Supreme Court appears to equate unreasonableness with any

police intrusion into a citizen’s right of privacy:

“We now recognize the constitutional encasement which

renders inviolable the individual’s reasonable expecta-

tion of privacy; any governmental intrusion into that

privacy is an “‘unreasonable search’’ within the mean-

ing of the Fourth Amendment, whether that intrusion

be the traditional physical search (citation omitted)

or a surreptitious auditory invasion (citations omitted)

or, indeed, visual intrusion.”’ 511 P. 2d at 42.

The need for additional clarification of Rakas v. Illinois,

Supra, is apparent from a consideration of decisions from

other circuits. In United States v. Vicknair, 610 F.2d 372

(Sth Cir., 1980). Judge Rubin, at Page 377, explained that:

A search need not be clandestine tc be unlawful. The

police crossed the premises with the admittedly illegal

purpose of searching the Sky Top Il’. If that is not

enough to infect the entire entry, their entry onto the

-30-

enclosed area of the premises and their attempts to

observe the interior of the house through closed and

shuttered windows belies the assertion that their sole

purpose was to locate the owner of the premises. . . the

parade of a uniformed officer and marked police cars

does not mask the background of invalid purpose.

Judge Rubin also declared, at Page 377, that:

The police excursion onio the private premises at

9330 Balada, however, was neither entirely innocent

nor within the scope of ordinary police routine. The

police suspected that the house and the boat were

being used for marujuana smuggling. Their visit was to

confirm those suspicions.

In Vicknair, the government had contended that because

a marked police car had been in the area and because a police

officer had openly attempted to arouse occupants of the house

by knocking and because there was no ‘“‘clandestine or sur-

reptitious behavior’, the technically illegal trespass was of

no consequence. In response, Judge Rubin stated. ‘Such

threads of distinction weave too fine a cloth to cover the un-

constitutionality of the entry.” Judge Rubin also declared,

A Defendant’s attempts to maintain his privacy. see

United States v. Chadwick, 1977, 493 U.S. 1. 11. 97

S. Ct. 2476, 2483, 53 L. Ed. 2d 538, 548; Katz uv.

United States, 1967, 389 U.S. 347, 351, 88 S. Ct.

507, 511, 19 L. Ed. 2d 576, 581, and his use of an

area, See Jones v. United States, 1960, 362 U.S. 257.

80 S. Ct. 725, 4 L. Ed. 2d 697; United States v. Britt,

5 Cir. 1975, 508 F.2d 1052, 1055, Cert Denied 423

U. S. 825, 96 S. Ct. 40, 46 L. Ed. 2d 42, are both rele-

wa.

vant considerations that may establish the existence of

a privacy interest even absent property rights in the

area. See Rakas v. Illinois, 1978, 439 U.S. 128, 150,

99 S. Ct. 421, 435, 58 L. Ed. 387, 405 (Powell, J.,

concurring).

In United States v. Rios, 611 F.2d 1335 (10th Cir., 1979).

the Court analyzed considerations pertinent to determining

Fourth Amendment rights. That Court indicated that a showing

that a person who owned specific premises “took normal

percautions to maintain his privacy - that is, precautions cus-

tomarily taken by those seeking privacy”’ would bear upon the

Fourth Amendment right to privacy. The Court cited Rakas

v. Illinois, 439 U.S. at Page 152. (611 F.2d at 1345).

It is submitted to this Court that it is most appropriate

at this time for the highest Court of the land to grant the

Writs requested herein in order to fully clarify and delineate

the parameters being drawn in Rakas. In Rakas, this Court has

begun a meaningful journey on the road to practically and

fully defining the ‘“‘privacy interests” protected by the Fourth

Amendment to the United States Constitution. In the case at

bar, this Court has before it the perfect vehicle to continue

that journey toward its ultimate goal.

II. This Court should grant Certiorari to consider whether

the analysis of “curtilage”, by the lower Courts in their

conclusion that the concept of ‘“‘curtilage’’ was control-

ling in a determination of Petitioners’ ‘zone of pri-

vacy,” and in their conclusion that the observed activi-

ties of Petitioners were outside of the ‘“‘curtilage”’

surrounding their residence was erroneous and in

violation of the rights of privacy guaranteed to Peti-

tioners by the Fourth Amendment to the United

States Constitution.

-32-

The antiquated “curtilage” distinction is not wholly valid,

after this Court’s decision in Katz, Supra. The comments of

this Court in Rakas, Supra, call for a re-evaluation and clari-

fication of the apparent rejection of “‘curtilage’’ which appears

in Katz.

The Louisiana Supreme Court, in the case at bar, apparently

erroneously relied on the ‘‘curtilage’’ doctrine. State v, Dupuis,

378 So. 2d at 937. The contention that the private shell drive-

way upon which the trucks were parked was “outside of”

Petitioners’ “‘curtilage’”’ is simply without merit. This claim

just not supported by the record. A reading of the record

will reveal that the trucks were located on a private shell drive-

day in the midst of a tract of land comprising the Dupuis-

Davison residence. That tract of land contained two (2) domi-

ciles. The private shell drive was obviously a part of the two

residences and their environs. The testimony presented during

the Hearing substantiates that conclusion.

Historically, a person may reasonably expect privacy

within his home and the area surrounding it and he may ex-

pect to be safe from warrantless intrusion therein. United States

v. Davis, 423 F.2d 974 (Sth Cir., 1970). He may also expect

to be free from visual intrusion into that area. In the case

at bar, as the Trial Court correctly held, the trucks which

were searched were certainly within the environs of the Dupuis

family compound. They were on a private shell driveway

used by the Dupuis and Davison families and their guests only.

Along the side of that driveway, right at the edge of the cane

field where officers lay hidden, was a bicycle, presumably

belonging to one of the Petitioners’ children. Around and out-

side the driveway was a carefully mowed area of grass which

was maintained by Petitioners and which contrasted sharply

to the plowed and planted sugar cane fields. (Transcript, Pages

«33-

502, 503, 520, 522, $32, 577 - $79, 593 - 595).

For a recent and pertinent analysis of ‘‘curtilage’’, the Court’s

attention is invited to United States ex rel Saiken v. Bensinger,

546 F. 2d 1292 (7th Cir. 1976). That Court examined the

decisions of several Courts of several jurisdictions in an attempt

to establish whether the case law had set forth a standard for

determining how far ‘‘curtilage’’ may extend from a person’s

residence. It was held that prior case law had displayed ‘a

perfect symetry and enunciated a clear rule: any outbuilding

or area within seventy-five (75) feet of the house is within

the curtilage and any outbuilding or area further than seventy-

five (75) feet is outside the curtilage.” Jd. at 1296. This conclu-

sion was reached by expressly not considering Walker v. United

States, 225 F.2d 447 (Sth Cir., 1955) where “‘curtilage”’ was

held to extend two hundred ten (210) to two hundred forty

(240) feet from the house. Even so, applying the ‘‘clear rule”’

defined by Saiken, it is apparent that in the case before this

Court, the “‘curtilage’”’ of the Dupuis-Davison residential com-

plex extended at least to the edge of the cane field, thereby

completely engulfing the vehicles which were siezed.

Certiorari should be granted in this matter, therefore, in

order to permit this Court to provide a functional treatment

of the issues raised by Justice Rehnquist in Rakas, Supra.

The rulings of the Louisiana Supreme Court and the Trial

Court in the case at bar, as they stand, operate to provide

those who live in rural areas a lesser expectation of privacy

with respect to law enforement officers conducting night-

time trespasses than the expectation of persons located in urban

areas. Neither historically nor socially can this be justified.

In the instant case, the trucks which were seized by law en-

forcement officers and in which Petitioners were apprehended

-34-

were located entirely on private property immediately adjacent

to their residence. They were not on a public highway. They

had become, by location and destination, absolutely equi-

valent to “outbuildings” comprising a portion of the residential

compound. The protection of the Fourth Amendment to the

United States Constitution must extend to these trucks, there-

fore, at that location and under those circumstances. The princi-

ples expressed by this Court in Rakas, Supra, demand that.

III. This Court should grant Certiorari to consider wheth-

er the lower Courts of Louisiana erred in their find-

ing that officers comprising the Federal-State task

force, hidden on private property owned by Peti-

tioners, had probable cause within the meaning of

the Fourth Amendment to the United States Con-

stitution, sufficient to justify their seizure of vehicles

also located on private property and to justify the

ultimate search of those vehicles.

The one factor essential to the legality of any search is the

presence of probable cause.

It is clear that when a Search Warrant is based on hearsay,

the Affidavit in support thereof must articulate th under-

lying circumstances upon which the informant bases his conclu-

sion and the circumstances: supporting the informant’s credi-

bility. See Aguilar v. Texas, 378 U. S. 108, 84 S. Ct. 1509,

12 L. Ed. 2d 723 (1964). Likewise, a warrantless search, even

if justified under an exception to the warrant requirement,

must be based on probable cause and there must be an arti-

culable set of underlying circumstances justifying conclusions

from an informant.

In the instant case, the testimony during the Hearing on a

3S.

Motion to Suppress Evidence revealed that the “facts” of

which Law Enforcement Officers allegedly were aware, con-

sisted primarily of speculation and hearsay conclusions. The

fatal defects in the information in the instant case are revealed

in the following listing.:

(1)

(2)

(3)

(4)

A contention by Officer Joachim that one of the

trucks which was under surveillance was registered

to Zerbe & Sons was, in fact, hearsay information.

(Trasncript, Pages 349 - 350);

Officer Joachim, at the Hearing on the Motion to

Suppress Evidence, conceded that his assumption that

a relationship existed between Mr. Zerbe (a Petitioner

herein) and a Mr. Zylstra (suspected of marijuana

smuggling), was, in fact, rank hearsay, many times

removed from Joachim. (Transcript, Pages 351 - 352).

Officer Joachim assumed that a relationship existed

between Petitioner, Dupuis, and Marvin Zylstra, and

his initial suggestion that he had firsthand knowledge

of such a relationship was later revealed to be nothing

more than rank hearsay and speculation. (Transcript,

Page 53).

Officer Joachim speculated (and acted upon that

speculation by conducting a seizure and search) that

marijuana contraband supposedly aboard the trucks

under surveillance was brought in on an aircraft between

June 11 and June 15, and it was demonstrated during

a Hearing on the Motion to Suppress Evidence that

that assumption was pure, rank speculation, and, in

fact, was totally false. (Transcript, Pages 358 - 360).

-36-

(5) Officer Joachim, who made the ultimate decision to

seize and search, speculated that observers in the private

cane field saw marijuana, but in truth, and in fact,

the objects which they saw were not obviously mari-

juana, and could have contained any number of legal ,

substances. (Transcript, Pages 363 - 354; 408; 471 -

473; 480).

It has been stated that an even higher standard for deter-

mination of the existence of probable cause must be applied

to warrantless searches than that which must be applied to

searches based on a validly issued Search Warrant. United

States v. Anderson, 500 F.2d 1311, 1315 (Sth Cir., 1974).

In order to determine whether or not probable cause existed,

the Court must determine whether under the facts and circum-

stances known to police at the time of the search in question,

a reasonable person would have concluded that a crime had

or was taking place or, alternatively, that there was contraband

upon the premises. See Williams v. United States, 404 F.2d

493 (Sth Cir., 1968).

The officers in the case at bar were searching with a view

toward uncovering evidence with which to arrest. Probable

cause for warrantless arrests may be based only on those facts

in existence at the time of the arrest, not on any facts dis-

covered after the arrest. People v. Walker, 64 Mich. App. 138,

235 N.W. 2d 85 (1975). The burden of proof in a warrant-

less search is always on the State. State v. Allan, 113 N.J.

Super. 245, 273 A 20587 (App. Div. 1970). Where, as in the

case at bar, the Stat- rails to prove the validity of the arrest

leading to the search for and subsequent seizure of the con-

traband, the evidence is inadmissible and should be suppressed.

State v. Hinton, 305 So. 2d 804 (Fla. 4th D. C. A. 1975);

T. L. W. v. State, 315 So. 2d 202 (Fla. 3rd D. C. A. 1975).

et.

In the case at bar, officers commenced their surveillance

at approximately 7:30 in the evening. It revealed the presence

of trucks, not an uncommon occurrence, and a number of per-

sons enjoying a barbeque. (Transcript, Pages 344, 349, 354,

432, 443 - 446, 451, 462, 463, 511, 521 - 522, 565, 567, 583,

584, 638, 639, 654, 689, 690). It is of importance to note

that Officer Joachim admitted the presence of a number of

automobiles and trucks at the Dupuis residence as early as

2:30 or 3:00 o’clock, P.M. on June 15 (Transcript, Page 344)

and the tractor-trailer truck, a focal point of the surveillance,

was regularly at the Dupuis residence for weeks prior to the

arrest. (Transcript, Pages 349, 354). In addition, it was conced-

ed by Officers Theriot and Lemaire that it was not at all un-

usual to see a number of vehicles in the vicinity of Petitioners’

residence and driveway, including a boat owned by Petitioner

and the trailer which was ultimately searched. (Transcript,

Pages 654, 688, 689).

At approximately 11:15 to 11:30 in the evening, the barbe-

que ended and the lights in the barbeque area were turned

off. Shortly thereafter, the trucks noved into position for

loading or unloading of cargo. Transcript, Pages 452; 453; 458-

460; 462-466). Again, such activity would not reasonably

appear to be unlawful.

The Court’s attention is invited to a recent decision of the

Louisiana Supreme Court in State v. Rudolph, 369 So. 2d

1320 (La., 1979) at Page 1324, in which it quoted from ‘“‘La-

Fave ‘Street Encounters’ and the Constitution: Terry, Sibron,

Peters and Beyond,65 Mich. L. Rev. 40, 73-74 (1968) in which

appears a discussion of “‘. . . many cases where grounds for

arrest have been found lacking because the conduct of the

suspect was equivocal, that is, where the possibility of criminal

conduct was no greater that the possibility of innocent be-

-38-

havior.”

During the span of the observation, for brief periods of

time, officers observed bales of an unknown substance. (T.

363; 364; 470 - 473; 480; 570; 576; 586 - 588; 590). When

questioned as to what was in the bales, the first officer, Cus-

toms Air Officer Wade, acknowledged that the bales were

identical in shape, form and size to a bale of commercially

purchased peat moss admitted into evidence at the Hearing.

(T. 480 - 484). The other officer making the observation

admitted that in the briefings prior to the commencement of

his surveillance, he was preconditioned to believe that if any

substance was being unloaded or loaded, that substance un-

doubtedly would be marijuana. (T. 575 - 576; 585 - 588;

590). The following exchange, as it appears at Page 590 of the

transcript, is especially significant:

“Q. All right; and the difference between you

making a guess in that circumstance and you

guessing on the night of June 15th was be-

cause you were told by your fellow officers

that there would be marijuana involved in those

trucks?

A. We were looking for marijuana, yes, sir.”

Therefore, in essence, these two officers who were engaged in

ihe often competive enterprise of ferreting out crime, jumped

to the arbitrary conclusion that the bales contained marijuana

when admittedly there were no objective signs such as mari-

juana gleanings or the odor of marijuana which would perhaps

justify that conclusion. A graphic demonstration of this appears

at Page 646 of the Transcript where Trooper Trahan, in charge

of the Louisiana State Police segment of the investigation,

-39-

admitted that the “phony” bale containing peat moss, prepared

by Petitioners for the Hearing looked like marijuana, and his

only reason for concluding that it did not contain marujuana

was that he would not expect marujuana to be lying in the

hallway of the courthouse. A reasonably prudent and objective.

man, even possessing knowledge that marijuana had been placed

in bales of similar size and shape on occasion before, could just

as reasonably have concluded that a legal substance was present.

in State v. Porter, 324 N.E. 2d 857 (Ct. App. Ind. 1975).

the lessor of rural property, while in an adjoining field, ob-

served what he thought was the processing (“‘stripping’’) of

marijuana. He informed the police who, with the use of bino-

culars, observed the premises from some 200 yards away. The

police obtained a warrant which, as in the case at bar, was

subsequently stipulated to be invalid. The Court noted first

that the police observations did not fall within the “plain

view” doctrine as contended by the State. The essential ques-

tion, according to the Court, was ‘‘whether entry under authori-

ty of an invalid warrant can later be justified by reliance on

related but distinct theories of law or evidence.”’ 324 N.E.

2d at 859. In affirming the Motion to Suppress Evidence

granted below, the Porter court stated:

Further, it is evident that notwithstanding what the

officers observed, they entered the premises under

authority of a search warrant, for the announced pur-

pose of seizing that which they already knew existed.

The purpose for entering was not to arrest, at least

not initially.

‘It is a general rule of law that an unlawful arrest

cannot be the foundation of a lawful search, nor

will the information obtained by an unlawful search

-40-

alone, furnish the basis is for a lawful arrest. Where

the arrest or search is unlawful to begin with, it is

not made lawful by that which afterwards takes

place.’ (Citations Omitted).

The arrests in this case were made on the basis of an

unlawful search and seizure, and that fact cannot be

altered by reliance on what the police could have done,

or by reliance on how police conducted themselves

before or after the impoper entry and seizure. 342

N.E. 2d at 859.

IV. This Court should grant Certiorari to consider whether

the lower Court’s finding that the warrant requirement

of the Constitution of the United States was no vio-

lated when law enforcement officers (a) seized and

(b) searched trucks located on private property when

there was no indication that the vehicles were im-

mediately to be moved and when law enforcement

officers were available and had more than adequate

time and facilities to obtain a warrant prior to move-

ment or to stop the vehicles if they were placed in

motion before ever reaching public highways.

A search and seizure carried out without a warrant is per

se unreasonable, unless Law Enforcement Officers can demon-

strate that it falls within one of the carefully defined set of

exceptions, one of which is the presence of “exigent circum-

stances”, Coolidge v. New Hampshire, 403 U.S. 443, 474

through 475; 91 S. Ct. 2022 29 L. Ed. 564 (1971) Exigent

circumstances exist only where, under the facts of the case,

it is impracticable to obtain a Search Warrant.

In what appears to be an after-thought, the Louisiana Supreme

-41-

re

Court, at the conclusion of its opinion in this matter, added

a paragraph concluding that exigent circumstances existed.

State v. Dupuis, 378 So. 2d at 938. The record belies that

conclusion.

Initially, it must be remembered that the trucks in question,

located as they were on private property, were under direct

surveillance by officers for almost five (5) hours before they

were seized. Whatever information officers had which was, in

fact, speculation, existed for that entire time with the excep-

tion of activity in the vicinity of the trucks which allegedly

commenced around 11:30 P.M., almost one hour before the

ultimate siezure. (Transcript, Page 759). The availability of the

United States Magistrate for the purpose of seeking a tele-

phonic Search Warrant under Federal Rules of Criminal Proce-

dure 41(c) (2) is evident throughout the record and from the

fact that officers did contact that Magistrate and attempt to

obtain a warrant. That attempt was a disaster not only because

of the failure of both the Magistrate and officers seeking the

warrant to comply with the prerequisites of the Rule but

also because of the total lack of a demonstration of adequate

probable cause for the issuance of the warrant.(Transcript,

Pages 195 - 198, 306 - 309, 330, 331, 332, 340, 347, 349,

351, 352, 353, 357, 358 - 360, 361, 366, 374, 375, 382, 414,

415, 419, 422 - 424, 426 - 428, 470 - 484, 488, 570, 578, 584,

585, 590).

The record reflects that after communcation from Officer

Wade, hidden in Petitioners’ cane field, to the effect that he

had observed bales within one of the trailers, two officers in

charge of the entire operations agreed that an apportunity

existed to apply for a Search Warrant, but that if the trucks

began to move before the warrant was obtained, they would

“hit them”. (Transcript, Page 633). Thus, there was available

to the officers in question, the procedure suggested by this

-42-

Court in Coolidge, Supra, and by the Louisiana Supreme

Court in State v. Parker, 355 So. 2d 900 (La., 1978), namely,

securing the premises to avoid flight while applying for a

Search Warrant.

The principle which must be re-affirmed in this matter

and which was apparently ignored by Federal and State Police

Officers in the case at bar, is that clearly recognized by Jus-

tice Jackson, writing for this Court in Johnson v. United States,

333 U.S. 10, 13 - 14, 68 S. T. 367, 92 L. Ed. 436 (1948):

The point of the Fourth Amendment, which often is

not grasped by zealous officers, is not that it denies

law enforcement the support of the usual inferences

which reasonable men draw from evidence, Protec-

tion consists in requiring that those inferences be drawn

by a neutral and detached Magistrate, instead of being

judged by the officer engaged in the often competi-

tive enterprise of ferrying out crime. Any assumption

that evidence sufficient to support a Magistrate’s dis-

interested determination to issue a Search Warrant

will justify the officers in making a search without

a warrant would reduce the Amendment to a nullity

and leave the people’s homes secure only in the dis-

cretion of police officers . . . When the right of privacy

must reasonably yield to the right of search is, as a

rule, to be decided by a judicial officer, not by a police-

man or government enforcement agent.

Exigent circumstances sufficient to justify a warrantless

search do not exist merely because the objects to be searched

are vehicles. The Louisiana Supreme Court in Parker, Supra,

recognized that automobiles are not automatically excluded

from the Fourth Amendment protection. In Coolidge, Supra,

-43-

this Honorable Court has noted that ‘‘The word ‘automobile’

is not a talisman in whose presence the Fourth Amendment

fades away and disappears.’’ In making this observation, this

Court recognized that a good number of containers, that is,

“trucks, suitcases, boxes, brief cases and bags’’ are as movable

as a vehicle. Therefore, more than the fact that a vehicle is in

involved is required to establish exigent circumstances. Id.

‘at 461.

The ‘automobile exception’’, first recognized by this Court

in Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L.

Ed. 543 (1925), was clearly explained by this Court in Cham-

bers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d.

419 (1969). In Chambers, this Court found that the stopping

of an automobile on a public highway constitutes sufficiently

exigent circumstances because the opportunity to search was

fleeting, the occupants were alerted and the car’s contents

might never be found again if a warrant were required. This

reasoning has been clearly tempered, however, in such cases

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

53 L. Ed. 2d. 538 (1976) and Coolidge v. New Hampshire,

Supra. In Coolidge, it was determined that even, assuming the

presence of probable cause, with respect to a vehicle located

on private property, a warrantless search or seizure was un-

constitutional:

The police had ample opportunity to obtain a valid

warrant in advance; they knew the automobile’s exact

description and location well in advance; they intended

to seize it when they came upon Coolidge’s property °° -

the seizure was therefore unconstitutional and so was

the subsequent search at the station house. 403 U.S.

at 473 (Part C).

No United States Supreme Court case has permitted the

search or seizure of a vehicle on private property (absent

factually exigent circumstances) even when probable cause

exists. See Cooper v. State of California, 386 U.S. 58 87 S. Ct

788, 17 L. Ed. 2d. 730 (1967); Chambers v. Maroney, Supra.

In Arkansas v. Sanders, 99 S. Ct. 2586, at Note 14, this Court

again emphasized that the seizure of a vehicle under the auto-

mobile “exception” has always involved a seizure on a public

highway, as opposed to private property. The rationale in

Arkansas, involves the impracticality of requiring officers to

take a seized vehicle from a public highway and place it in a

safe location while obtaining a warrant. Obviously, in the case

at bar, the vehicles in questions were not on any public high-

way, were in a safe location, and could have been detained in

that location until a warrant was sought.

In the case at bar, it is evident that the Petitioners were

alerted to the surveillance. The opportunity to search was not

fleeting. The trucks were not on any public highway. The keys

were not in the ignition at the time of the search and it was

evident to observers of the vehicles that no one was even in

the cab of any of the vehicles. Finally, at the time of the search,

the premises had been sufficiently secured so as to prevent any

movement off the premises by the vehicles and thereby pre-

vent flight. Therefore, the Carroll doctrine is clearly inappli-

cable. (Transcript, Pages 438, 440 - 443, 591 - 592, 633, 639 -

640, 686 - 687).

A clear description of the factual situation appears at Pages

686 and 687 of the Transcript in the following sequence:

Q. Did you find any keys?

A. No, sir, I didn’t.

-45-

Q. Were the lights on?

A. Inside the cab, yes, sir.

Q. Inside the cab?

A. Inside the cab. Yes, sir.

Q. But not the headlights on the trucks?

A. I don’t know if there were any headlights on the truck.

©

None at all? You mean the trucks could not run at night?

>

There were headlights on it, but they weren’t lit.

Q. Thank you. Were the engines running?

A. No, sir, they weren’t.

Q. Was there any appearance at all that those trucks were

going to move out?

A. Not at that time, no, sir.

The most recent cases under the Carroll doctrine have recog-

nized that the doctrine is applicable to the search of moving

vehicles, not vehicles which are parked on private property.

See United States v. Ragsdale, 470 F.2d 24 (Sth Cir. 1972);

United States v. Chapman, 474 F.2d 300 (Sth Cir. 1973);

United States v. Alexander, 559 F.2d 1339 (Sth Cir. 1977).

In fact, the doctrine is now popularly referred to as the ‘‘war-

rantless search of a moving automobile”. (Emphasis Added).

United States v. Anderson, 500 F.2d 1311 (Sth Cir. 1974);

-46-

United States v. Nieto, 510 F.2d 1118 (Sth Cir. 1975).

No other facts demonstrate the existence of exigent circum-

stances. The exceptions to the warrant requirement are “‘jeal-

ously and carefully drawn’? Jones v. United States. 357 U.S.

493, 499 (1958) 78 S. Ct. 1253, 2 L. Ed. 1514. There must

be a showing by those who seek exemption that the exigency

of the situation made that course imperative. McDonald uv.

United States, 335 U.S. 451, 456 (1948). 69 S. Ct. 191, 93 L.

Ed 153. Thus, the burden is on those seeking exemption to

show the need for it. United States v. Jeffers, 342 U.S. 48

51 72 L. Ct. 93, 96 L. Ed. 59 (1951). In essence, the officers

were required to demonstrate to the Court that they literally

faced a “now or never situation’”’ whereby, unless they acted

to preserve evidence of the crime, that opportunity would be

lost in their effort to obtain a search warrant. ROADEN V.

KENTUCKY, 413 U.S. 496, 595, 93 S.Ct. 2716, 37 L.Ed. 2d

757 (1973). The “now or never” situation simply did not exist.

Where a warrantless search is not conducted under true exigent

conditions, the Fourth Amendment has been violated and the

fruits of the search should be excluded. STATE V. MANKEL,

27 Ariz. App. 436, 555 P.2d 1124 (1976); LUDLOW V. STATE,

314 .N.E. 2d 750 (Ind. 1974).

The lack of exigent circumstances in the instant case is

conclusively shown by the de facto attempt to obtain a Search

Warrant which failed, not because of the presence of exigent

circumstances or lack of time, but because of the legally un-

sound information relied upon by the Magistrate and the

failure of both the Magistrate and Law Enforcement Officers to

comply with the safeguards required by Federal Rules for the

protection of those whose property Law Enforcement Officers

seek to search. See UNITED STATES V. HART, 162 F.2d 74

(10th Cir., 1974). Clearly, the issuance of an invalid Search

Warrant prior to a search and seizure on the one hand. and a

-47-

finding of exigent circumstances, on the other, are mutually

exclusive and cannot be reconciled.

Even if there had existed exigent circumstances in the case

at bar allowing the seizure of the trucks in question (and

petitioners strenuously contend that no exigent circumstances

did, in fact, exist), there certainly were no exigent circum-

stances allowing the additional warrantless searches of those

trucks. Such a search of these seized trucks on private property,

without a warrant, is similar to the search of foot lockers, brief

cases, etc., condemned by: this Court in previous decisions.

Here, the trucks could easily have been seized as they sat

dormant on private property, while application for a legal

warrant was made. It is apparent that the mere fact that the

objects in question are connected with a vehicle does not

permit a warrantless search, without exigent circumstances.

This Court has confirmed in COOLIDGE, Supra, that a vehicle

on private property is not, per se, subject to a warrantless

search. In G.M. LEASING CORPORATION V. UNITED

STATES, 429 U.S. 338, 354, 97 S.Ct. 619, 50 L.Ed. 2d 530,

this Court recently acknowledged:

It is one thing to seize without a warrant property

resting in an open area oryseizable by levee without

an intrusion into privacy, and it is quite another thing

to effect a warrantless seizure of property . . . situated

on private premises to which access is not otherwise

available for the seizing officer. Cited with approval

in PAYTON V. NEW YORK, No. 78-5420 (1980)

(Emphasis Added).

CONCLUSION

Petitioners have presented to this Honorable Court a situa-

tion requiring the action of this Court for purpose of clarifica-

tion of previous rulings involving basic and fundamental United

States Constitutional Rights. The confusion which exists

nationally is apparent by an examination of the opinion of the

Louisiana Supreme Court in conjunction with the reasoning

of this Court in RAKAS V. ILLINOIS, Supra. Additionally,

there exists nationally the urgent need for clarification by this

Court of what has been labeled the ‘‘automobile exception’’.

Petitioners pray that their Petition for Writ of Certiorari be

‘granted, therefore, in order to review the Judgments and Opin-

-ions of the Supreme Court of Louisiana so that the Courts of

this land may have available clear and understandable guidelines

and principles for the protection of the citizens of this Nation.

Respectfully submitted,

GRISBAUM & KLEPPNER

FERDINAND J.

Attorney for Petitioners

*(Transcript, Pages 500 - 503; 506 - 510; 519; 520; 522; 523;

529; 537) (Exhibits S - 1, D- 5,6, 7, 16, 17, 18, 18A)

presently in the custody of the Clerk of Court for St. Martin

Parish which will not be released without an order of the Court)

49-

CERTIFICATE OF SERVICE

I, Ferdinand J. Kleppner, an attorney for Petitioner do hereby

certify that I have served copies of this Brief to all interested

parties. on this the 26 day of June , 1980.

}

ce ee ee

Ferdinand J. Kleppner

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