Petition — Kaufman v. New Jersey

is a Suprema Cati?: 11, am

80 2 16 EIDE SD

55 “AUG13 1980

Supreme Court of the United tices noone JR., CLERK

October Term, 1979

CHARLES KAUFMAN,

Petitioner,

VS.

STATE OF NEW JERSEY, and

JOHN J. DEGNAN, as Attorney General

of the State of New Jersey,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE-SUPREME COURT OF THE

STATE OF NEW JERSEY

THOMAS B. MADING MICHAEL PANCER

44 Leigh Street 520 "E" Street, Suite 1100

Clinton, New Jersey 08809 San Diego, California 92101

(201) 735-4811 (714) 236-1826

ROBERT A. SEEWALD

429 Fourth Avenue, Suite 1107

Pittsburg, Pennsylvania 15219

(412) 391-4120

Attorneys for Petitioner

Dean-Siandefer, 3262 Main St., Huntington Beach, Ca. 92648

(714) 536-7161

i

QUESTIONS PRESENTED FOR REVIEW

A. Was the warrantless search of petitioner’s luggage

while under the exclusive control of the police invalid neces-

sitating the granting of petitioner’s motion below to suppress

evidence?

B. Should the Chadwick-Sanders! decisions be given

retroactive application to all cases still pending at the time

the decisions were rendered?

\tinited States v. Chadwick, 433 U.S. 1, 97 S. Ct. 2476 (1977)

Arkansas v. Sanders, ..... U.S. ..... ,99 S. Ct. 2586 (1979)

ii

TABLE OF CONTENTS

Questions Presented For Review .............+ i

EE, goss New 0 oie 6.8 06.00 Vea ae ees | ii

Table of Authorities Cited ............cec0, iii

i ne i A Ee SE 2 a ]

ES EE TF ee ee

a LNG bs darkens «Vie ate Ke eco

Constitutional Provisions Involved ............

EPP PORES CELE

Reasons Why the Writ Should be Granted ......

RISES RIGS ISG a a PE a

A. The warrantless search of petitioner’s

luggage while under the exclusive control

of the police was invalid necessitating the

granting of petitioner’s motion below to

EE RE 8

oolUleNnrmlC(C RECUMULPCUlUCUNOCOCUWNF

B. The Chadwick-Sanders decisions should

be given retroactive application to all

cases still pending at the time the deci-

I Ts on cb odin Biba o eo 6 1]

as ee oS) 6 thy oes eee ens 17

iii

TABLE OF AUTHORITIES CITED

Cases Page

Almeida-Sanchez v. United States, 413 U.S. 266,

Be Ay Tay + | Ee ene Cais Sean ay eae 11,12

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

yin’ VEL gy. , Seo ps 7,9, 10, 11, 12, 13, 15, 16, 17

Cady v. Dombrowski, 413 U.S. 433,

Fe ae BOR URE Pee 049 oaks thoes os 9

Cardwell v. Lewis, 417 U.S. 583,

D4 GB. Ch PASS CIPS) eckee cera cvarces. 9

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

ae Ge be hk valk bb bs vee wa 8,9, 15

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

PO Gs BC RT CELA cc bebicreekes 8,9, 15

Hanover Shoe, Inc. v. United Shoe Machinery

Corp., 392 U.S. 481, 88 S. Ct. 2224

SRDOD: bean tx wu oes sed hte Hb ed Hb s 38 12

Linkletter v. Walker, 381 U.S. 618,

Sor a Ss CE I ein he's oo awe hare ve - 16,17

Mapp v. Ohio, 367 U.S.643,

ob ee S| Se eee 16

Schleis v. United States, 433 U.S. 905,

ME arth oc bee eawalh ss oy: be a eb ade 7,13

United States v. Berry, 560 F.2d 861

(7th Cir. 1977), vacated on other

grounds, 571 F.2¢2, cert. denied, 3

439 U.S. 840, 99 S. Ct. 129 (1978) ........ 10, 13

United States v. Calandrella, 605 F.2d 236

ER pon ks Wihe Ade Ra COR oh ak 12

iv

TABLE OF AUTHORITIES CITED

Cases (cont’d) Page

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

WF As DOT MOTTE cca a bck cane te’

teh ee 2, 6, 7, 9, 10, 11, 12, 13, 14, 15, 16, 17

United States v. Choate, 576 F. 2d 165

(9th Cir.), cert. denied, 439 U.S. 953,

Te. Se, SOGRUOIED As wick cae eede vied: 13

United States v. Ester, 442 F. Supp. 736

Ce Ses CP sdk iad OR at’ s scid es een 10

United States v. Jackson, 576 F.2d 749

Se Gals: RP PES ik ad OU en VS oe eh wn ot 10

United States v. Johnson, 588 F.2d 147

Se SE ewe ee oes eS hr ye eked 10

United States v. Kaye, ..... Sa ae

SG ee as SERIE oo Abie k a ein Ue eee ch 12

United States v. MacKay, 606 F.2d 264

CG RRM SO sive ik AES scree bales 6, 13

United States v. Marchand, 564 F.2d 983

(2nd Cir. 1977), cert. denied, 434 U.S.

Sg Be Bey NS 7 | SIRS aee eae ree 10

United States v. Montgomery,

558 F.2d 311 (Sth Cir. 1977) ............ 12

United States v. Ochs, 595 F.2d 1247

Ce PEE uke bs Mechs Ue beeen ond 13

United States v. Peltier, 422 U.S. 531,

SS Ges MRO CRP PO 6 hick ah oreo 6, 11, 12

United States v. Reda, 563 F.2d 510

(2nd Cir. 1977), cert. denied,

435 U.S. 973, 98 S. Ct. 1617 (1978) ...... 12

v

TABLE OF AUTHORITIES CITED

Cases (cont’d) Page

United States v. Schleis, 582 F.2d 1166

(8th Cir. 1978), cert. denied, 443 U.S. 911,

SPB. CR DIOL GIFTS oc vet in cvs ce 7, 13, 14, 15

United States v. Stevie, 582 F.2d 1175

(8th Cir. 1978), cert. denied, 443 U.S. 911,

Pe Ws GR BIOS CISTERN 6c Bate wed awenceeeds 7, 10, 13

United States v. Vallieres, 443 F. Supp. 186

Dn SHeUR 66s. sseeewnerewawe einahe 10

United States Constitution

ee 4, 6, 7, 8, 11, 14

United States Statute

ye Yee reine wars ares 4

Supreme Court Rules

RE 55 oc Rude Fiaw sé theo) se enaea Nee |

NO, cccscsccseesocee

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1979

CHARLES KAUFMAN,

Petitioner,

VS.

STATE OF NEW JERSEY, and

JOHN J. DEGNAN, as Attorney General

of the State of New Jersey,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE

STATE OF NEW JERSEY

2Pursuant to Rule 21 .1(b), counsel of record for petitioner hereby

represents that the persons shown above comprise a list of all the

parties to the proceeding. (Rules of Supreme Court.)

om,

This is a petition for CHARLES KAUFMAN for

a Writ of Certiorari to review the order made by the

Supreme Court of the State of New Jersey, on May 28,

1980, refusing to review and reverse the decision of the

Appellate Division, Superior Court of New Jersey, filed

March 24, 1980, affirming the denial of petitioner’s

motion to suppress as evidence certain drugs found in

a closed leather bag which petitioner had in his posses-

sion while riding as a passenger in a motor vehicle. The

Judge of the Superior Court who presided over the mo-

tion hearing ruled that this Court’s decision in United

States v, Chadwick did not apply to the search in this

case and that the police thus did not need a warrant to

open private luggage taken from the automobile, even

though all potential suspects had been detained and the

luggage secured.

OPINIONS BELOW

To the petitioner’s knowledge, neither the order of

the New Jersey Supreme Court nor the opinion of the

Appellate Division have been officially or unofficially

reported as yet. (A copy of the opinion of the Appellate

Division of the Superior Court of New Jersey is attached

hereto as Appendix “‘A’’, and a copy of the order of the

Supreme Court of New Jersey is attached as Appendix ‘‘B”’.)

JURISDICTION

1, On August 2, 1977, the Grand Jury for Hunterdon

County returned an indictment charging petitioner with pos-

ies

sessory charges and charges of intent to distribute con-

trolled dangerous substances.

2. On September 9, 1977, petitioner filed a

Notice of Motion to Suppress Evidence of the Warrant-

less Search. The hearing on the motion was held before

the Honorable Richard Barlow, J.S.C., on July 19, 1978,

who, by order entered July 27, 1978, denied the motion,

3. On October 17, 1978, petitioner pled guilty to

Count Three of the indictment, which charged him with

unlawful possession of Opium, Quaaludes, Cocaine and

Marijuana with intent to distribute them on April 24,

1977. The plea bargain agreement was that the State

would dismiss Counts One and Two, involving simple

possession of the drugs, and not oppose the same bail

pending appeal.

4. On December 15, 1978, petitioner was sen-

tenced to a term of five to seven years in the New Jersey

State Penitentiary. The court agreed to free petitioner

on the same bail which was posted at the time of his

arrest ($50,000.00).

5. Atimely Notice of Appeal was filed with the

Appellate Division of the New Jersey Superior Court on

January 25, 1979. The appeal was argued before the

Honorable Judges Samuel Allcorn and George B. Francis

on February 25, 1980. On March 24, 1980, the court

handed down a one-sentence per curiam opinion affirming

Judge Barlow’s denial of petitioner’s motion to suppress

evidence.

6. On April 9, 1980, petitioner filed a Notice of

Petition for Certification to the Supreme Court of the

State of New Jersey. The order of that court denying

dies

the petition was filed on May 28, 1980.

7. This petition for certiorari is being filed less

than 90 days from the aforesaid date. The ‘urisdiction

of this Court is invoked under 28 U.S.C. § 1257(3).

CONSTITUTIONAL PROVISIONS

INVOLVED

Fourth Amendment to the United States Constitu-

tion.

“The right of the people to be secure in their

persons, houses, papers and effects against

unreasonable searches and seizures, shall not

be violated, and no warrants shall issue but

upon probable cause supported by oath or

affirmation and particularly describing the

places to be searched and the persons or

things to be seized.”

STATEMENT OF THE FACTS

On April 24, 1977, petitioner and an Edward

Wilczenski were passengers in a chauffeur-driven limou-

sine traveling from New York City to Easton, Pennsylvania

by way of Route 22. At approximately 7:54 a.m., Officer

Dennis M. Balent of the Bridgewater Township Police noted

that the limousine was speeding as it passed through his

radar, and he gave pursuit. Officer Balent followed the

vehicle out of Bridgewater Township into Readington

Township and, after three miles, pulled the vehicle off the

highway. Bridgewater Township is located in Somerset

salad

County, New Jersey, and Readington Township is located

in Hunterdon County, New Jersey.

While checking the driving credentials of the chauffeur,

Officer Balent noticed two passengers in the back of the

vehicle. Because the passengers were dressed in blue jeans,

Officer Balent decided to conduct a further investigation.

Upon close observation, Officer Balent noted that Wilczen-

ski had a clear plastic bag protruding from the pocket of

his jacket. The officer ordered Wilczenski to give him the

bag and, after examining it, placed Wilczenski under arrest

and advised him of his constitutional rights.

Shortly after the bag was confiscated, two additional

police vehicles arrived on the scene. In one vehicle was

Officer Palani of the Bridgewater Police and in the other

vehicle was Officer Smith of the Readington Township

Police. One of these officers ordered petitioner from the

vehicle. Officer Balent then entered the vehicle and, by

himself, began an extensive search. He began with the

front seat area of the car, checking around the seats and

in the glove compartment. Nothing of an illegal or contra-

band nature was discovered by this effort.

Officer Balent next directed his attention to the back

seat, where he observed a closed brown leather bag which

he suspected contained drugs. The leather bag was opened

by Officer Balent, whereupon he was confronted with three

zippered areas. The middle zipper was opened, producing

one brown bag. This bag was also opened, leading to another

brown bag. Inside the second brown paper bag, smaller

plastic bags containing alleged controlled dangerous sub-

stances were discovered.

At the time petitioner was ordered out of the vehicle,

a

and before the luggage was searched, he was in custody and

not free to leave. Officer Balent testified that he believed

the brown leather bag contained drugs because he suspected

that the residue of white powder found in the plastic bag

protruding from Wilczenski’s jacket pocket was a controlled

dangerous substance.

REASONS WHY THE WRIT SHOULD BE GRANTED

Shortly after this Court’s decision in United States v.

Chadwick, 433 U.S. 1, 97 S. Ct. 2476 (1977), a number of

the appellate courts were faced with the difficult issue of

whether or not that decision should be given retroactive

effect. To date, five Courts of Appeals,° relying upon the

reasoning advanced by this Court in United States v. Peltier,

422 U.S. 531, 95 S. Ct. 2313 (1975), have held that Chad-

wick is not to be applied retroactively. One circuit, the

Eighth, has held otherwise.

There is no question that good arguments can be ad-

vanced on both sides of the issue. The courts refusing to

apply the decision retroactively have concluded that Chad-

wick represents a significant expansion of traditional Fourth

Amendment protections and that the two primary rationales

for the exclusionary rule—deterrent of unlawful police con-

duct and the “imperative of judicial integrity” —would there-

fore not be served by applying Chadwick to seizures which

occurred before the decision and which law enforcement

3The Ninth Circuit Court of Appeals recently questioned the validity

of its prior rulings on this issue in United States v. MacKay, 606 F.2d

264 (9th Cir. 1979).

os ©

officers, because of prior statutory, administrative and

judicial interpretation, reasonably believed in good faith

to be admissible. The contra-argument is that Chadwick

presents no question of retroactivity because Chadwick

does not represent a departure from this Court’s long-

standing approach to the Fourth Amendment. Rather,

the argument is that the Court simply reaffirmed the long-

established constitutional principle that absent some exi-

gency requiring an immediate search of luggage, a warrant

must be obtained before law enforcement officers can

search that luggage, even if seized from a vehicle.

The very actions of this Court have also provided

support for retroactive application. Chadwick was de-

cided on June 21, 1977. The search in Arkansas v. Sanders,

ae US. ..... , 99 S. Ct. 2586 (1979), took place on April

23, 1976, and Sanders was decided on June 27, 1979.

Without any reservation, this Court applied the Chadwick

rule to a pre-Chadwick search in its Sanders opinion. In

addition, six days after Chadwick was decided, the Court

vacated a judgment of the Court of Appeals for the Eighth

Circuit involving a 1974 brief-case search and 12:manded for

furth-r consideration in light of Chadwick (Schleis v. United

States, 433 U.S. 905, 97 S. Ct. 2968). Also, after the Eighth

Circuit concluded in Schleis (582 F.2d 1166 (8th Cir. 1978) )

that Chadwick should be applied retroactively, this Court

denied certiorari in United States v. Stevie, 582 F.2d 1175

(8th Cir. 1978), cert. denied, 443 U.S. 911, 99 S. Ct. 3102

(1979), though the decision in Stevie referred to the Schleis

decision in determining the retroactivity issue.

It is thus readily apparent that only a direct decision

by this Court on this very troublesome issue will resolve the

nile

conflict not only raging in the federal court system but

also among the various state appellate courts. In the

past, the Court has chosen, by failing to grant certiorari

in a number of cases, to provide a definitive answer on

the question of retroactivity. However, due to the present

split in the circuit courts and the various state appellate

courts, it would appear that the time has finally arrived

for this Court to speak out on this issue. Therefore, in

order to provide the necessary uniformity of justice that

our system demands, it is respectfully submitt i that the

instant Writ of Certiorari should be granted.

ARGUMENT

A. The Warrantless Search Of Petitioner’s Luggage

While Under The Exclusive Control Of The Police

Was Invalid Necessitating The Granting Of Peti-

tioner’s Motion Below To Suppress Evidence.

Soon after the automobile came into widespread use,

this Court first announced the automobile exception to the

warrant requirement of the Fourth Amendment, holding

that because of its mobility, an automobile that is stopped

on the highway may be searched without a warrant when

police officers have probable cause to believe it contains

contraband or evidence of a crime (Carroll v. United States,

267 U.S. 132, 45 S. Ct. 280 (1925) ). The Court later ex-

tended the ruling in Carroll to hold that when there is justi-

fication for a warrantless seurch of an automobile stopped

on the highway, the search is not invalid if undertaken later

at the police station (Chambers v. Maroney, 399 U.S. 42,

hes

90 S. Ct. 1975 (1970); see also Cady v. Dombrowski,

413 U.S. 433, 93 S. Ct. 2523 (1973); Cardwell v. Lewis,

417 U.S. 583, 94 S. Ct. 2464 (1974) ).

In the recent decisions of United States v. Chad-

wick, 433 U.S. 1, 97 S. Ct. 2476 (1977), and Arkansas

v,, Sanders, ..... U.S. ..... , 99 S. Ct. 2586 (1979), the Court

declined to extend, however, the ruling of Carroll and its

progeny to allow the warrantless search of one’s personal

luggage merely because it was located in an automobile

lawfully stopped by the police. In Chadwick, federal

agents seized a 200-pound footlocker incident to the

arrest of three men, two of whom had just placed it in

the trunk of an automobile. The arrest occurred before

the trunk was closed. The locked footlocker, containing

marijuana, was opened by unknown means after it had

been removed by the agents to the Federal Building in

Boston. The agents had probable cause to believe mari-

juana was in the footlocker, and the question—as the

government posed it—was “[w] hether a search warrant

is required before federal agents may open a locked

footlocker that is properly in their possession and that

they have probable cause to believe contains contraband”

(97 S. Ct. at 2481, n. 3). The question was answered

affirmatively because, “[t] here being no exigency, it

was unreasonable for the government to conduct the

search without the safeguards a judicial warrant pro-

vides” (97 S. Ct. at 2483). Thus, the Court concluded

that “when no exigency is shown to support the need

for an immediate search, the Warrant Clause places the

line at the point where the property to be searched

comes under the exclusive dominion of police author-

eS

ity’’ (97 S. Ct. at 2486, emphasis added).

In the just decided case of Arkansas v. Sanders, supra,

the Court reaffirmed its ruling in Chadwick in holding that

police officers must obtain a warrant before searching

luggage taken from an automobile which was properly

stopped. Again dismissing the argument that the warrant-

less search of luggage is proper solely because such property

is taken from an automobile lawfully stopped and searched

on the street, the Court applied the rule lai:! down in Chad-

wick that “the exigency of mobility must be assessed at the

point immediately before the search . . . ” (99S. Ct. at

2593). Therefore, once police have seized the object to be

searched and have it securely within their control, ‘‘the

extent of its mobility is in no way affected by the place

from which it was taken. Accordingly, as a general rule,

there is no greater need for warrantless searches of luggage

taken from automobiles/than of luggage taken from other |

places (id., footnotes omitted).

Applying the Chadwick-Sanders rationale to the facts

in the instant case, it is clear that no exigencies existed which

made it necessary for the officers to search the entire vehicle,

let alone the closed leather bag,* before obtaining a warrant.

4The following cases have applied Chadwick to searches other than

bulky footlockers. See United States v. Johnson, 588 F.2d 147 (Sth

Cir. 1979) [duffel bag] ; United States v. Stevie, 582 F.2d 1175 (8th

Cir. 1978), cert. denied, 443 U.S. 911, 99 S. Ct. 3102 (1979) [suit-

case] ; United States v. Jackson, 576 F.2d 749 (8th Cir. 1978) [attache

case] ; United States v. Marchand, 564 F.2d 983 (2nd Cir. 1977), cert.

denied, 434 U.S. 1015, 98 S. Ct, 732 (1978) [wallet] ; United States v.

Berry, 560 F.2d 861 (7th Cir. 1977) [attache case]

grounds, 571 F.2d 2, cert, denied, 439 U.S. 840, 99 S. Ct. 129 (1978);

United States v. Vallieres, 443 F. Supp. 186 (D. Conn. 1977) [suitcase] ;

United States v. Ester, 442 F. Supp. 736 (S.D. N.Y. 1978) [suitcase] .

wed Bek

There was simply no danger that the contents of the vehicle

might have disappeared if the officers had taken the time to

obtain a warrant. At the time of the search of the vehicle

and its contents, all subjects were being detained and were

safely within police control. Further, several police officers

were present and the vehicle itself was within their firm

grasp. Under such circumstances, there was no reason to

suspect that the car would not remain safely in police cus-

tody until it was impounded and removed to the police

garage and a warrant was obtained. As stated in Arkansas

v. Sanders, supra, at page 2594:

“‘Where—as in the present case—the police,

ic atithout endangering themselves or risking loss of

the evidence, lawfully have detained one suspect-

ed of criminal activity and secured his suitcase,

they should delay the search thereof until after

judicial approval has been obtained. In this way,

constitutional rights of suspects to prior judicial

review of searches will be fully protected.”

B. The Chadwick-Sanders Decision Should Be Given

Retroactive Application To All Cases Still Pending

At The Time The Decisions Were Rendered.

The problem of retroactive application of the exclu-

sionary rule in a Fourth Amendment setting was squarely

faced by this Court in United States v. Peltier, 422 U.S.

531, 95 S. Ct. 2313 (1975). In that case, the Court con-

sidered the retroactive application of the Court’s decision

in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.

Ct. 2535 (1973), which had held warrantless border searches

a, |,

without probable cause to be unconstitutional. The Court

recognized that the search in Peltier was concededly illegal

under Almeida-Sanchez but held “that the exclusionary

rule should not be mechanically applied * * * because

the policies underlining the rule do not justify its retro-

active application to pre-Almeida-Sanchez searches” (422

U.S. at 534-535, 95 S. Ct. at 2316). The Court reached

its decision after concluding that neither of the two major

purposes of the exclusionary rule—the deterrent of unlaw-

ful police conduct and “the imperative of judicial integrity”

—would be served by excluding evidence that “law enforce-

ment officers reasonably believed in good faith” to be admis-

sible, even if later decisions “broaden the exclusionary rule

to encompass evidence seized in that manner” (id., at 537,

95 S. Ct. at 2317). According to the Court, the critical

question in determining if the exclusionary rule should be

applied retroactively on a given set of facts is not so much

whether the decision invalidating the search “constitutes a

sharp break in the line of earlier authority” (Hanover Shoe,

Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 499,

88 S. Ct. 2224, 2234 (1968) ), but, rather, “[whether]

the law enforcement officer had knowledge, or may

properly be charged with knowledge, that the search was

unconstitutional under the Fourth Amendment”’ (id., at

542, 95 S. Ct. at 2320).

Relying on the above analysis, the Second, Fifth,

Sixth, Seventh and Ninth Circuits have held that Chadwick

is not to be applied retroactively. (United States v. Reda,

563 F.2d 510 (2nd Cir. 1977), cert. denied, 435 U.S. 973,

98 S. Ct. 1617 (1978); United States v. Montgomery, 558

F.2d 311 (Sth Cir. 1977); United States v. Calandrella, 605

ibas

F.2d 236 (6th Cir.), cert. denied, United States v. Kaye,

jews U.S. ....., 100 S. Ct. 522 (1979); United States v.

Berry, 571 F.2d 2 (7th Cir.), cert. denied, 439 U.S. 840,

99 S. Ct. 129 (1978); United States v. Choate, 576 F.2d

165, 182, n. 20 (9th Cir.), cert. denied, 439 U.S. 953,

99 S. Ct. 350 (1978).) The Eighth Circuit in United

States v. Schleis, 582 F.2d 1166, 1173-1174 (8th Cir. 1978),

has held otherwise.

The principal argument for retroactive application of

Chadwick is that this Court so held sub silentio when it de-

cided Sanders, as the search in Sanders occurred prior to

the decision in Chadwick. Without any discussion, the

Court applied the Chadwick rule to a pre-Chadwick search

in its Sanders opinion. Indeed, the Ninth Circuit, one of

the circuits which had refused to apply Chadwick retro-

actively, recently questioned its previous rulings in light

of the Chadwick rule being applied to a pre-Chadwick

search in Sanders. (See United States v. MacKay, 606 F.2d

264, 265, n. 2 (9th Cir. 1979.))

The other arguments in support of retroactivity are this

Court’s order of remand in Schleis for further consideration

in light of Chadwick (433 U.S. 905, 97 S. Ct. 2968), and the

denial by this Court of certiorari in United States v. Stevie,

443 U.S. 911, 99 S. Ct. 3102 (1979). In footnote 6 of the

Schleis opinion, the Eighth Circuit viewed the remand order

as direction to apply Chadwick retroactively (582 F.2d at

1173, n. 6; see also United States v. Ochs, 595 F.2d 1247,

1255 (2nd Cir. 1979) ). It is submitted that it would have

been an exercise in futility for this Court to have remanded

Schleis had it not intended Chadwick to apply to pre-Chadwick

searches. The Court’s denial of certiorari in Stevie, even though

i thin

the decision referred to the Schleis decision on the retro-

activity issue, constitutes further evidence of the Court’s

intention to apply Chadwick retroactively.

In addition to these arguments, the Eighth Circuit,

in Schleis concluded that Chadwick presented no question

of retroactivity because Chadwick did not represent a depart-

ure from this Court’s long-standing approach to the Fourth

Amendment. After an analysis of prior decisions by this

Court, the Schleis court summarized its reasoning as follows:

“Unlike Peltier, this case does not present a

question of retroactivity and, thus, we need not

reach the question of whether or not to apply the

exclusionary rule. @f. United States v. Martinez,

526 F.2d 954 (5th Cir. 1976) (holding the Sup-

reme Court’s decisions on border searches in

United States v. Ortiz, 422 U.S. 891, 95 S. Ct.

2585, 45 L. Ed. 2d 623 (1975), and United States

v. Brignoni-Ponce, 422 U.S. 873, 95 S. Ct. 2574,

45 L. Ed. 2d 607 (1975), to be retroactive). Chad-

wick announces no new constitutional doctrine, nor

does it broaden any existing exclusionary rule. All

the Court did in Chadwick was to hold that warrant-

less searches of luggage absent an exigency are an

invasion of a ‘legitimate privacy interest’ and

cannot be justified under any of the long establish-

ed exceptions to the Fourth Amendment warrant

requirement. In so holding, the Court stressed

that ‘in this area we do not write on a clean slate.’

United States v. Chadwick, supra, 433 U.S. at 9,

97 S. Ct. at 2482. While there had been no prior

Supreme Court decisions explicitly establishing the

9%.

existence of a legitimate privacy interest in

luggage, the Court cites numerous decisions,

including Ex Parte Jackson, 96 U.S. 727, 24

L. Ed. 877 (1878), and United States v. Van

Leeuwen, 397 U.S. 249, 90 S. Ct. 1029, 25 L.

Ed. 2d 282 (1970), which ‘reflect the subtle

constitutional principles * * * that a fund-

amental purpose of the Fourth Amendment

is to safeguard individuals from unreasonable

government invasion of legitimate privacy

interests, and not simply those interests found

inside the four walls of the home.’ Jd., 433

U.S. at 11, 97 S. Ct. at 2483 (fn. omitted).

The Supreme Court need not have applied a

well-settled constitutional principle to every

possible fact situation before its decisions are

entitled to retroactive effect. Moreover, in

Peltier, the challenged border search had been

conducted pursuant to statutory authority and

similar searches had repeatedly been upheld

against constitutional attack. Jd., 422 U.S. at

539-541, 95 S$. Ct. 2313. Such is not the case

here.” (582 F.2d at 1174, footnotes omitted.)

Petitioner would urge this Court to adopt the reasoning

in Schleis when finally ruling on this very troublesome issue.

In both the Chadwick and Sanders opinions, the Court did

state that it was simply refusing to extend the “automobile

exception,” as set forth in Carroll and Chambers, to the

warrantless search of one’s personal luggage merely because

it was located in an automobile lawfully stopped by the

police. Basically, the Court only reaffirmed its prior rulings

hs

that warrantless searches of one’s personal property are

unreasonable even if found outside the home. These

prior rulings, as indicated by the Chadwick Court,

“reflect the settled constitutional principle, discussed

earlier, that a fundamental purpose of the Fourth Amend-

ment is to safeguard individuals from unreasonable gov-

ernment invasions of legitimate privacy interests, and not

simply those interests found inside the four walls of the

home. Wolf v. Colarado, 338 U.S. 25, 27, 69 S. Ct. 1359,

1361, 93 L. Ed. 1782 (1949)” (97 S. Ct. at 2483). There-

fore, there being no new constitutional principle establish-

ed by Chadwick and Sanders, and considering the privacy

interests at stake which law enforcement officers have

always known to be jealously guarded by all courts, the

purposes of the exclusionary rule would best be served

by applying the Chadwick and Sanders decisions retro-

actively.

In urging the Court to apply Chadwick and Sanders

retroactively, petitioner does recognize the overwhelming

burden such a decision would place upon the administra-

tion of justice. Hearings would have to be held on the

excludability of evidence long since destroyed, misplaced

or deteriorated. If it was excluded, the witnesses available

at the time of the original trial would no longer be available

or their memories so dimmed as to make them virtually

useless for either side. Similar considerations influenced

this Court not to apply the ruling in Mapp v. Ohio, 367

U.S. 643, 81 S. Ct. 1864 (1961), to state court convictions

which had become final before Mapp was decided. (Link-

letter v. Walker, 381 U.S. 618, 85 S. Ct. 1731 (1965).)

The instant situation being very similar to that faced by

on Fac

the Linkletter Court (six of the Courts of Appeals had

conflicting views), it is suggested that this Court, to

avoid a serious disruption of the administration of

justice, might wish to adopt the approach taken by the

Linkletter Court.

It is thus respectfully submitted that as the principle

that a warrantless search of one’s personal luggage, even

if found in an automobile lawfully stopped, was invalid

absent the existence of exigent circumstances even before

the Chadwick and Sanders decisions, the affirmation of

that principle should now be applied retroactively or, at

the very least, to all cases still pending at the time the

Chadwick and Sanders decisions were rendered.

CONCLUSION

For the above-mentioned reasons, petitioner CHARLES

KAUFMAN respectfully requests that this Honorable Court

grant the instant Petition for Writ of Certiorari to review

the order of the New Jersey Supreme Court.

Respectfully submitted,

MICHAEL PANCER

THOMAS B. MADING

ROBERT A. SEEWALD

Attorneys for Petitioner

INDEX TO APPENDIXES

Appendix Page

“A” Opinion of the Superior Court of

New Jersey, Appellate Division,

decided March 24, 1980 ............ ]

+ a Order of May 28, 1980, of Supreme Court

of New Jersey, September Term 1979 . . 2

APPENDIX “A” 1.

OPINION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE COMMITTEE ON OPINIONS

Superior Court of New Jersey, Appellate Division.

A-1634-78

STATE OF NEW JERSEY, Plaintift-Respondent,

v. CHARLES KAUFMAN, Defendant-Appellant.

Argued: February 25, 1980 - Decided: March 24, 1980

Before Judges Allcorn and Francis

On appeal from Superior Court, Law Division,

Hunterdon County.

Thomas B. Mading, attorney for appellant,

Robert Seewald of Pennsylvania Bar, argued

the cause.

John J. Degnan, Attorney General, attorney for

respondent (Mary Ann Kenny Pidgeon, Deputy .

Attorney General, argued the cause).

PER CURIAM

The order denying defendant’s motion to suppress as

evidence certain drugs found in a motor vehicle in which he

was a passenger, is affirmed substantially for the reasons

expressed by Judge Barlow in his oral opinion rendered on

Jul 19, 1978.

APPENDIX “B”

ORDER

Supreme Court of New Jersey

September Term 1979

C-711

STATE OF NEW JERSEY, Plaintiff-Respondent,

v. CHARLES KAUFMAN, Defendant-Petitioner.

To the Appellate Division, Superior Court:

A petition for certification of the judgment in

A-1634-78 having been submitted to this Court, and the

Court having considered the same;

It is ORDERED that the petition for certification is

denied with costs.

WITNESS, the Honorable Robert N. Wilentz, Chief

Justice, at Trenton, this 28th day of May, 1980.

Stephen W. Townsend

Clerk

DECLARATION OF SERVICE BY MAIL

STATE OF CALIFORNIA )

) s.

County of Orange )

I, the undersigned, say: I am and was at all times herein mentioned, acitizzen ~

of the United States and employed in the County of Orange, State of C<‘ifornia,

over the age of eighteen years and not a party to the within action or proceeding;

that

My business address is 326% Main Street, Huntington Beach, California 92648,

that on AUGUST /| , 1980, I served the within PETITION FOR WRIT OF

CERTIORARI TO THE SUPREME COURT OF THE STATE OF NEW JERSEY

(KAUFMAN vs. STATE OF NEW JERSEY) on the following named parties

by depositing three copies thereof, each, enclosed in a sealed envelope with

postage thereon fully prepaid, in the United States Post Office in the City of

Huntington Beach, California, addressed to said parties at the addresses as

follows:

NEIL S. COOPER, First Assistant Prosecutor

OFFICE OF COUNTY PROSECUTOR, HUNTERDON COUNTY

Eight Court Street

Flemington, New Jersey 08822

JOHN J. DEGNAN, Attorney General

State House Annex

Trenton, New Jersey 08625

WADE H. McCREE, JR.,

Solicitor General of the United States

U. S, Department of Justice

Washington, D. C. 20530

I declare under penalty of perjury that the foregoing is true and correct.

Executed on AUGUST / ( , 1980, at HUNTINGTON

D. A. Standefer

* 41 Copies to United States Supreme Court, Washington, D.C. Docket fee of

$200 annexed to Original Copy

Dean-Sta::defer, 326% Main St., Hun n Beach, Ca. 92648

(714) 536-7161

=. =,