Petition — Hatami v. New Jersey

No.

Supreme Cotrt, U.S,

80-562 PILED,

In The JUL 28 1980 ,

Supreme Court of the Huited MBA" ™ 1]

inten

October Term, 1980

CYRUS HATAMI,

Petitioner,

VS.

STATE OF NEW JERSEY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF NEW JERSEY

ROBERT E. LEVY

LEVY & ROBERTSON

Attorneys for Petitioner

1319 Memorial Drive

Post Office Box 150

Asbury Park, New Jersey 07712

(201) 988-5683

UTZ APPELLATE PRINTERS, INC.

law and Financial Printing

South River, N.J. New York, N.Y. Philadelphia, Pa. Washington, D.C.

(201) 257-6850 (212) 840-9494 (215) 563-5587 (202) 783-7288

1948

No.

In The

Supreme Court of the United States

+

October Term, 1980

CYRUS HATAMI,

Petitioner,

VS.

STATE OF NEW JERSEY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF NEW JERSEY

To the Honorable Chief Justice and Associate Justices of the

Supreme Court of the United States:

Cyrus Hatami, the petitioner herein, prays that a writ of

certiorari issue to review the refusal of the Supreme Court of

New Jersey to grant certification on April 29, 1980 in response

to a petition for rehearing; the denial on February 15, 1980 ofa

petition for certification to the Supreme Court of the State of

New Jersey; the affirmation of the judgment of conviction by the

Appellate Division of the Superior Court of New Jersey upon

reargument on November 21, 1979; the affirmation of the

ii

judgment of conviction by the Appellate Division of the

Superior Court of the State of New Jersey on june 27, 1979; and

the Judgment of Conviction of October 13, 1977 by the Superior

Court of the State of New Jersey for Monmouth County.

QUESTIONS PRESENTED

1. Whether the determination of the United States Supreme

Court in United States v. Chadwick, 433 U.S. 1 (1977) and

Arkansas v. Sanders, 99 S. Ct. 2586 (1979) carved out new law

or a new variant of the Exclusionary Rule or if the Supreme

Court reaffirmed the right that was created at the time of the

adoption of the Fourth Amendment of the United States

Constitution with respect to the requirement of a search warrant

for the searching and seizing of personal effects contained within

luggage in an automobile?

2. Whether a State may, without violation of the

petitioner’s constitutional guarantee against unlawful search and

seizure refuse to apply the Exclusionary Rule retroactively with

respect to searches and seizures that were executed prior to this

Court’s determination in United States v. Chadwick, supra and

Arkansas v. Sanders, supra.

iii

TABLE OF CONTENTS

Page

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Constitutional Provisions Involved .........eeeeeseeeeees l

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Reasons For Granting the Writ:

I. Whether the determination of the United States

Supreme Court in United States v. Chadwick, 433

U.S. 1 (1977) and Arkansas v. Sanders, 99 S. Ct.

2586 (1979) carved out a new law or a new variant of

the Exclusionary Rule or if the Supreme Court

reaffirmed the right that was created at the time of

the adoption of the Fourth Amendment of the

United States Constitution with respect to the

requirement of a search warrant for the searching

and seizing of personal effects contained within

luggage in an automobile. .......-eeseeeeeeeeee 5

iv

Contents

Page

Il. Whether a State may, without violation of the

petitioner’s constitutional guarantee against unlawful

search and seizure refuse to apply the Exclusionary

Rule retroactively with respect to searches and

seizures that were executed prior to this Court's

determination in United States v. Chadwick, supra

and Arkansas v. Sanders, supra. ....eeseeeeeees 15

CIOS | occ ce wcaw bc us Ve ees Uhhiceteres cuevaane 24

TABLE OF CITATIONS

Cases Cited:

Arkansas v. Sanders. 99 S. Ct. 2586, 6 L. Ed. 2d 235

x cunhdd Rewes> CvARSgOER 3, 4, 3, 41; 12, 14, 03, 16, 89, 22, 23

Carroll v. United States, 267 U.S. 132 (1925) ..... 4,3, 41, 1a

Chambers v. Maroney, 399 U.S. 42 (1970) ......eeeeeeeeee

snes <<b obs abe C de ee CA hee ae 4,5, 7, 11, 12, 14, 15, 18

Coolidge v. New Hampshire, 403 U.S. 443 (1971) ..... 6, 7, 8, 18

Desist v. United States, 394 U.S. 244 (1969) .........055- 16, 17

Franks v. Delaware, 438 U.S. 154 (1978) .........4.. 15, 16, 17

Linklette: v. Walker, 381 U.S. 618 (1965) .........eeeeeees 16

Mapp v. Ohio, 367 U.S. 643 (1961) .... cee eee cece eee wees 16

Mincey v. Arizona, 98 S. Ct. 2408 (1978) 20... . cece e ee eeee 7

y

Vv

Contents

Page

State v. Branam, 161 N.J. Super. 53, 390 A. 2d 1186 (App.

Be, TP 5 FU kan CE sae wath dnc Rb Kes be hen cEsan 19

State v. Brockington, 89 N.J. Super. 423, 215 A. 2d 362

LA. Als EPROP cb WCadec hee setae cncame es chcccctent 21

State v. Evans, 75 N.J. Super. 319, 183 A. 2d 137 (App.

Sk SR abbas baw Cicebes des dnd's tuecvetecescutws 23

State v. Howery, 80 N.J. 563 (1979) .........eeee. 4, 11, 15, 17

State v. Jacques, 86 N.J. Super. 386, 207 A. 2d 165 (App.

nt, Se Le. s ae dia tan baieceks ssa bane a 22

State v. Masi, 72 N.J. Super. 55, 177 A. 2d 773 (Law 1962)

wt cote wk se ska eC uka ee uae th vue Awabbeeihaeaen 23

State v. Nash, 64 N.J. Super. 464 (1974) ............. 16, 17, 20

State v. Petillo, 61 N.J. 165 (1972), cert. den. 410 U.S.

MP CHET EE aca: skis oad Cea tin OME ad Cds bates ecaeeee 17

State v. Smith, 37 N.J. 481, 181 A. 2d 761 (1962) ......... 16, 23

State v. Vighano, 50 N.J. 51 (1967) ....ccccwccecccccvscvecs 16

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

Wel ot Gn kw eh tuletasibin weet 4, 5,8, 9, 10, 11, 15, 18, {9

United States v. Peltier, 422 U.S. 31 (1975) .............6. 17

Statutes Cited:

PRD. AR, SURE ADE) oo vc tiin cd cacbvin cs tawnvocdvesecscces 3

vi

Contents

Page

MBB Ac PRAISGIE) 5 09/6 He ties vaebeadee vag stvbcens os ae 3

id BP, Deane bine 065 ch ees eeepc Sop tees cckex cen 3

Be RE es BET), 1.5 CR ERS 008s haf ¥aSU eer eevery rey eer l

United States Constitution Cited:

FOUR AGOGO io.sic's o.00.0:0 tewiege vie’ 45,6 1, 12:45, %

PU PE ho veh Coie 0s ipo eewepe hha ape ews cae 1, 19

FOUPtCCME AMICHOMIONE 6 occ ccc cccccscacaterswrqens 2,5, 19

Other Authorities Cited:

New Jersey State Constitution, Article I, Section7 ........ 4, 11

3 La Fave, Search and Seizure 692-97 (1978) ...........455 17

APPENDIX

Opinion of the Appellate Division Dated June 27, 1979 .... la

Opinion of the Appellate Division Dated November 21, 1979

Order Denying Petition for Certification Dated February

LS SEE ee ee Me PM PH eee 10a

Order Denying Motion for Reconsideration of Order

Denying Petition for Certification Dated April 29, 1980

l

OPINIONS BELOW

The opinion of the Appellate Division of the Superior

Court of the State of New Jersey rendered June 27, 1979,

affirming the petitioner’s conviction; the opinion of the

Appellate Division of the Superior Court of the State of New

Jersey, upon reargument, rendered November 21, 1979,

affirming the petitioner’s conviction; and the denial by the New

Jersey Supreme Court of a petition for certification on February

11, 1980 and entered on February 15, 1980 are located in the

Appendix attached hereto.

JURISDICTION

The Supreme Court of the United States has jurisdiction to

review the final judgment on a petition for certiorari pursuant to

Title 28, United States Code, Section 1257, sub-paragraph (3).

CONSTITUTIONAL PROVISIONS INVOLVED

The Fourth Amendment of the United States Constitution

provides:

“The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or

affirmation, and particularly describing the place

to be searched, and the persons or things to be

seized.”

The Fifth Amendment of the United States Constitution

provides:

“No person shall be held to answer for a

capital, or otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury,

‘4

2

except in cases arising in the land or naval forces,

or in the Militia, when in actual service in time of

War or public danger; nor shall any person be

subject for the same offence to be twice put in

jeopardy of life or limb; nor shall be compelled in

any criminal case to be a witness against himself,

nor be deprived of life, liberty, or property,

without due process of law; nor shall private

property be taken for public use, without just

compensation.”

The Fourteenth Amendment of the United States

Constitution provides:

“All persons born or naturalized in the

United States, and subject to the jurisdiction

thereof, are citizens of the United States and the

State wherein they reside. No State shall make or

enforce any law which shall abridge the

privileges or immunities of citizens of the United

States; nor shall any State deprive any 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.”

STATEMENT

On March 12, 1977 the petitioner was operating a motor

vehicle, in the trunk of which vehicle was contained a duffel bag.

Within the duffel bag were a pair of shoes and contained within

the heels of such shoes was a quantity of a controlled dangerous

substance.

Upon being stopped by the State Police, the trunk of the

vehicle was opened, the duffel bag was opened and the heels

removed from the shoes revealing the quantity of the controlled

dangerous substance.

3

From the moment of the stopping of the petitioner’s vehicle,

the duffel bag and its contents came within the control of the

police. The seizure of the vehicle and the arrest of the petitioner

placed the duffel bag and its contents within the officers’

exclusive control. The subsequent search of the duffel bag and

the shoes contained therein took place without obtaining a

search warrant.

An indictment was presented against the petitioner charging

violations of New Jersey Statutes Annotated 24:21-19a(1) and

New Jersey Statutes Annotated 24:21-19b(2) and a violation of

the New Jersey Statutes Annotated 24:21-20a(2).

On May 5, 1977 a motion was made on behalf of the

petitioner for the suppression of evidence that was obtained by

means of a warrantless search and seizure on March 12, 1977.

Such motion was denied on July 22, 1977 and the petitioner was

tried on October 12, 1977 and October 13, 1977 by the court

without a jury. On October 13, 1977, the trial court found the

petitioner guilty of the various counts of the indictment.

On December 16, 1977, the petitioner was sentenced to

twenty-five to thirty years on the First Count of the indictment

and five to ten years on the Second Count with both sentences

to run concurrently and consecutive to any other sentence

previously imposed. A timely notice of appeal was filed on

December 16, 1977.

On June 27, 1979, the judgment of conviction was affirmed

by the Appellate Division of the Superior Court of the State of

New Jersey. As a consequence of the determination of this court

in Arkansas v. Sanders, supra, an application for a rehearing

was granted and the Appellate Division of the Superior Court of

the State of New Jersey once again affirmed the judgment of

conviction on November 21, 1979. A petition for certification to

the Supreme Court of New Jersey was denied on February 15,

1980 and a petition for a rehearing for a petition for certification

was denied by the Supreme Court of the State of New Jersey on

April 29, 1980.

Summary of Argument

The Fourth Amendment to the United States Constitution

and Article I, Section 7 of the New Jersey State Constitution

require the obtaining of a search warrant for the searching of

persons, houses, papers and effects. Certain well-defined

exceptions have been set forth by judicial decision to validate

warrantless searches. One of these is called the “Automobile

Exception.” The Appellate Division has based its determination

to affirm the denial of the motion to suppress upon Chambers v.

Maroney, 399 U.S. 42 (1970) and Carroll v. United States, 267

U.S. 132 (1925). In United States v. Chadwick, 433 U.S. 1 (1977)

and Arkansas v. Sanders, 6 L. Ed. 2d 235 (1979), the Supreme

Court of the United States has drawn a distinction between the

search of a motor vehicle based upon the “Automobile

Exception” and the seizure and search of personal effects found

in such motor vehicle.

In its determination of June 27, 1979, the Appellate

Division relied upon Chambers v. Maroney, supra, and gave no

weight to United Staies v. Chadwick, supra. In its determination

of November 21, 1979, the Appellate Division based its decision

on Chambers v. Maroney and set forth that Chambers, supra

did not apply since it involved the seizure of a footlocker as it

was being placed in the open trunk of a parked car and was not

a motor vehicle search.

The Appellate Division also set forth that no effect could be

given to Chadwick or Sanders inasmuch as neither one had been

decided when the search took place in the within matter on

March 12, 1977. The Appellate Division set forth that the

Supreme Court of New Jersey had refused to apply the

Exclusionary Rule retroactively in State v. Howery, 80 N.J. 563

(1979) the essence of Howery, supra, was that only prospective

application would be accorded where there was a new

constitutional principle. The petitioner has argued that no new

constitutional principle evolved but rather that the Fourth

Amendment has always been in effect and that Sanders was an

5

atterapt by the State of Arkansas to extend the application of

Chambers to receptacles found within an automobile and that

that attempt was denied by both the Supreme Court of the State

of Arkansas and the United States Supreme Court.

REASONS FOR GRANTING THE WRIT

I.

Whether the determination of the United States Supreme

Court in United States v. Chadwick, 433 U.S. 1 (1977) and

Arkansas v. Sanders, 99 S. Ct. 2586 (1979) carved out a new law

or a new variant of the Exclusionary Rule or if the Supreme

Court reaffirmed the right that was created at the time of the

adoption of the Fourth Amendment of the United States

Constitution with respect to the requirement of a search warrant

for the searching and seizing of personal effects contained within

luggage in an automobile.

Should the “Automobile Exception” to the warrant

requirement of the Fourteenth Amendment extend to closed

personal luggage of an arrestee found in the trunk of a car or

should the arrestee’s expectation of privacy in the contents of his

luggage require the procurement of a search warrant? The issue

before the Court is a confrontation between the “Automobile

Exception” to the warrant requirement announced in Carroll v.

United States, supra, and the holding in United States v.

Chadwick, supra and Arkansas v. Sanders, supra, requiring the

issuance of a search warrant before police entry into luggage

held in police custody.

Initially it should be remembered that Carroll, supra,

announced an exception to the warrant requirement based on

practicalities arising from the mobility of the automobile and the

fleeting opportunity to search. Therefore, an immediate roadside

search of the vehicle of an arrestee is justified where probable

cause exists. However, Carroll, supra, was and remains an

exception to the warrant requirement.

ry

6

In Coolidge v. New Hampshire, 403 U.S. 443 (1971) a case

in which the Court evaluated a warrantless probable cause

search of an automobile, the Court noted that “the word

automobile is not a talisman in whose presence the Fourth

Amendment fades away and disappears.” In reviewing the

warrant requirement in Coolidge, supra, at 455-456 the Court

stated:

“Thus the most basic constitutional rule in this

area is that ‘searches conducted outside the

judicial process, without prior approval by Judge

or Magistrate are per se, unreasonable under the

Fourth Amendment subject only to a few

specifically established and well delineated

exceptions.” Katz v. United States, 389 U.S. 347,

357. The exceptions are ‘jealously and carefully

drawn’, Jones v. United States, 357 U.S. 493,

499, and there must be a ‘showing by those who

seek exemption... that the exigencies of the

situation made that course imperative.’

MacDonald v. United States, 335 U.S. 451, 456.

‘The burden is on those seeking the exemption to

show the need for it.” United States v. Jeffers, 342

U.S. 98, 51. In times of unrest, whether caused by

crime or racial conflict or fear of internal

subversion, this basic law and the values it

represents may appear unrealistic or extravagant

to some. But the values were those of the authors

of our fundament constitutional concepts. In

times not altogether unlike our own they won by

legal constitutional means in England and by

revolution in this contingent — a right of

personal security against arbitrary intrusion by

official power. If times have changed reducing

every man’s scope to do as he pleases in an urban

and industrial world, the changes have made

these values served by the Fourth Amendment

more, not less important.”

7 e

7

The Court’s recognition of the continuing vitality of the

majority’s analysis in Coolidge, supra, appears in the language

of Mincey v. Arizona, 98 S. Ct. 2408 at 2414 (1978), a case in

which the Court rejected a “murder scene exception” to the

warrant requirement.

“Moreover, the mere fact that law enforcement

may be made more efficient can never by itself

justify disregard of the Fourth Amendment. The

investigation of crime would always be simplified

if warrants were unnecessary. But the Fourth

Amendment reflects the view of those who wrote

the Bill of Rights that the privacy of a person’s

home and property may not be totally sacrificed

in the name of maximum simplicity in

enforcement of the law. For this reason warrants

are generally required to search a person’s house

or his person unless ‘the exigencies of the

situation make the needs of law enforcement so

compelling that the warrantless search is

objectively reasonable under the Fourth

Amendment.”

In Chambers v. Maroney, supra, this Court held that a

police officer with probable cause to search an automobile at the

scene where it is stopped may later do so at the station house

without first obtaining a warrant. There was a justification for

the delayed search in Chambers, supra, in that the occupants in

the car were arrested in a dark parking lot in the middle of the

night and a careful search at that point was impractical and

perhaps unsafe for the officers. Chambers, supra, at 52 n. 6.

Nothing in Chambers, supra, suggests that the officers could

search a suitcase clearly utilized as a repository of personal

effects without first procuring a search warrant.

The inherent mobility of the object to be searched cannot,

without more, justify a failure to secure a warrant. The question

in each case is not simply whether the item searched is movable;

|

rather the question is whether, in light of the realities of the

situation, there was a reasonable likelihood that the itern would

be moved before a warrant could be obtained. Where the

possibility of movement is only remote or speculative, the police

are simply not confronted with the kind of urgency which would

excuse them from the warrant requirement. See Coolidge v. New

Hampshire, supra.

In United States v. Chadwick, 97 S. Ct. 2476 (1977) the

United States Supreme Court said on page 2482:

“... In this case, important Fourth Amendment

privacy interests were at stake. By placing

personal effects inside a double-locked

footlocker, respondents manifested an

expectation that the contents would remain free

from public examination. No less than one who

locks the doors of his home against intruders,

one who safeguards his personal possessions in

this manner is due the protection of the Fourth

Amendment Warrant Clause. There being no

exigency, it was unreasonable for the

Government to conduct this search without the

safeguards a judicial warrant provides. ... Our

treatment of automobiles has been based in part

on their inherent mobility, which often makes

obtaining a judicial warrant impracticable.

Nevertheless, we have also sustained ‘warrantless

searches of vehicles...in cases in which the

possibilities of the vehicle’s being removed or

evidence in it destroyed were remote, if not non-

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

441-442, 93 S. Ct. 2523, 2528, 37 L. Ed. 2d 706

(1973); accord, South Dakota v. Opperman, 428

U.S. at 368, 96 S. Ct. at 3096.

The factors which diminish the privacy aspects

of an automobile do not apply to respondents’

vs

9

footlocker. Luggage contents are not open to

public view, except as a condition to a border

entry or common carrier travel; nor is luggage

subject to regular inspections and official scrutiny

on a continuing basis. Unlike an automobile,

whose primary function is _ transportation,

‘luggage is intended as a repository of personal

effects. In sum, a person s expectations of privacy

in personal luggage are substantially greater than

in an automobile.

Nor does the footlocker’s mobility justify

dispensing with the added protections of the

Warrant Clause. Once the federal agents had

seized it at the railroad station and had safely

transferred it to the Boston federal building

under their exclusive control, there was not the

slightest danger that the footlocker or its contents

could have been removed before a valid search

warrant could be obtained. The initial seizure

and detention of the footlocker, the validity of

which respondents do not contest, were sufficient

to guard against any risk that evidence might be

lost. With the footlocker safely immobilized, it

was unreasonable to undertake the additional

and greater intrusion of a search without a

warrant.”

The attention of the Court is also respectfully directed to

Footnote No. 8 on page 2485, which reads as follows:

“Respondents’ principal privacy interest in the

footlocker was of course not in the container

itself, which was exposed to public view, but in

its contents. A search of the interior was

therefore a far greater intrusion into Fourth

Amendment values than the impoundment of the

7%

10

footlocker. Though surely a_ substantial

infringement with respondents’ use and

possession, the seizure did not diminsh

respondents’ legitimate expectation that the

footlocker’s contents would remain private. It

was the greatly reduced expectation of privacy in

the automobile, coupled with the transportation

function of the vehicle, which made the Court in

Chambers unwilling to decide whether an

immediate search of an automobile, or its seizure

and indefinite immobilization, constituted a

greater interference with the imghts of the owner.

This is clearly not the case with locked luggage.”

The Court concluded its determination on page 2486 as

follows:

“...In our view, 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 come under the

exclusive dominion of police authority.

Respondents were therefore entitled to the

protection of the Warrant Clause with the

evaluation of a neutral magistrate, before their

privacy interests in the contents of the footlocker

were invaded.”

In its decision of June 27, 1979 the Appellate Division set

forth that the within matter is controlled by Chambers v.

Maroney, supra. The Appellate Division went on to say that it

felt that this might even be a stronger case inasmuch as the

search took place at the scene of the arrest. The Appellate

Division quoted language from Chambers, supra, which set

forth authority for the search of the vehicle without a search

warrant. The language quoted from Chambers, supra, did not in

any way concern itself with the search of anything contained

within the car but rather discussed solely the search of the

vehicle itself.

It is respectfully submitted that the Appellate Division

concerned itself solely with probable cause and at no time did it

address itself to the question of exigent circumstances.

The requirement to obtain a search warrant requires not

only the presence of probable cause but there must be a

determination of exigent circumstances. That is set forth

specifically in Carroll v. United States, supra, and in Chambers

v. Maroney, supra.

In the Appellate Division’s determination of November 21,

1979 it set forth its conclusion that the search herein passed

constitutional muster under the so-called “Automobile

Exception” to the Warrant Clause, and cited Chambers v.

Maroney, supra. The Appellate Division went further and set

forth that prior to Arkansas v. Sanders there was no decision of

the United States Supreme Court which forbade the search of

luggage uncovered during an otherwise valid but warrantless

automobile search. The Appellate Division distinguished United

States v. Chadwick, supra, by setting forth that it was not a

motor vehicle search but was a luggage search. The Appellate

Division further set forth that State v. Howery, supra, would

prevent the application of the Exclusionary Rule retroactively.

The Appellate Division erred originally and compounded

that original error in its second determination. Nothing in

Chadwick and Sanders contravened the right of police officers

to search without a warrant where there is probable cause and

an exigent circumstance. That is the “Automobile Exception”

and it is to be applied in limitation of the rights granted by the

Fourth Amendment to the United States Constitution and

Article I, Section 7 of the New Jersey State Constitution when

both elements are present. Lacking both of the elements needed

to create the exception the rights granted under the Fourth

Amendment to the United States Constitution continued to be

effective. In Sanders, supra, the application of the State of

Arkansas was to extend the scope of the “Automobile

Exception”. When the Arkansas Supreme Court and this Court

12

refused to extend the scope of that exception it did not carve out

a new law or a new variant of the Exclusionary Rule. The courts

reaffirmed a right that was created at the time of the adoption of

the Fourth Amendment which predated, by almost two

centuries, the “Automobile Exception” developed in Carroll and

Chambers. As further evidence that the court relied on the

Fourth Amendment as the law which was the controlling factor

in Sanders and not the creation of new law, the attention of the

Court is respectfully directed to following portion of Sanders:

“We conclude that the State has failed to carry its

burden ef demonstrating the need for warrantless

searches of luggage properly taken from

automobiles. A closed suitcase in the trunk of an

automobile may be as mobile as the vehicis in

which it rides. But as we noted in Chadwick, the

exigency of mobility must be assessed at the

point immediately before the search after the

police have seized the object to be searched and

have it securely within their control. See 433

U.S., at 13. Once police have seized a suitcase, as

they did here, 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.

Similarly, a suitcase taken from an automobile

stopped on the highway is not necessarily

attended by any lesser expectation of privacy

than is associated with luggage taken from other

locations. One is not less inclined to place

private, personal possessions in a suitcase merely

because the suitcase is to be carried in an

automobile rather than transported by other

means or temporarily checked or stored. Indeed,

the very purpose of a suitcase is to serve as a

13

repository for personal items when one wishes to

transport them. Accordingly, the reasons for not

requiring a warrant for the search of an

automobile do not apply to searches of personal

luggage taken by police from automobiles. We

therefore find no justification for the extension of

Carroll and its progeny to the warrantless search

of one’s personal luggage merely because it was

located in an automobile lawfully stopped by the

police.

In sum, we hold that the warrant requirement of

the Fourth Amendment applies to personal

luggage taken from an automobile to the same

degree it applies to such luggage in other

locations. Thus, insofar as the police are entitled

to search such luggage without a warrant, their

actions must be justified under some exception to

the warrant requirement other than _ that

applicable to automobiles stopped on_ the

highway. Where — as in the present case — the

police, without endangering themselves or risking

loss of the evidence, lawfully have detained one

suspected of criminal activity and secured his

suitcase, they should delay the search thereof

until after judicial approval has been obtained. In

this way, the unconstitutional right of suspects to

prior judicial review of searches will be fully

protected.

The judgment of the Arkansas Supreme Court is

affirmed.” (Emphasis ours.)

In a concurrent opinion Mr. Chief Justice Burger set forth:

“... The warrant requirement is not so onerous

as to command suspension of Fourth

e%

14

Amendment guarantees once the receptacle

involved is securely in the control of the police as

it was after Sanders’ arrest.

... Here, as in Chadwick, it was the luggage

being transported by respondent at the time of

the arrest, not the automobile in which it was

being carried, that was the suspected locus of the

contraband. The relationship between the

automobile and the contraband was purely

coincidental, as in Chadwick. The fact that the

suitcase was resting in the trunk of the

automobile at the time of respondent’s arrest

does not turn this into an ‘automobile’ exception

case, the Court need say no more.”

Sanders clarifies that this is not the creation of a new law

but rather a denial by the United States Supreme Court to

extend Carroll to validate warrantless searches of personal

luggage solely because of their being located in an automobile

lawfully stopped by the police. Sanders sets forth that the police

can only search without a warrant luggage found in a motor

vehicle based upon some exception to the warrant requirement

other than that applicable to automobiles stopped on the

highway. The United States Supreme Court has most

unequivocally set forth that Chambers v. Maroney, supra,

cannot be justification for the warrantless search of luggage

found within the trunk of a motor vehicle.

As has been noted herein above the Supreme Court of the

State of Arkansas and this Court have refused to extend the

scope of the “Automobile Exception” to the warrantless search

of personal effects contained within an automobile. To give

further effect to the determination of the Appellate Division of

the Superior Court of the State of New Jersey as reflected herein

would be to actually extend the scope of the “Automobile

Exception” as set forth in Chambers v. Maroney, supra. The

15

opinions of the Appellate Division bear this out inasmuch as the

opinion of June 27, 1979 set forth its total reliance on Chambers

v. Maroney and the second opinion of November 23, 1979

declared that it was still relying upon Chambers v. Maroney and

attempted to distinguish Chadwick by setting forth that it was

not an “Automobile Exception” case. The Appellate Division

had the benefit of this Court’s opinion in Sanders, supra, prior

to making its second determination and the Appellate Division

ignored the finding of this Court and found that the fact that the

luggage came from an automoble detracted from the petitioner’s

right of privacy because there is in existence something called

the “Automobile Exception”.

The granting of the petition for a writ of certiorari herein

will serve to advise the State of New Jersey that it is bound to

give the literal effect to the content of the Fourth Amendment to

the United States Constitution and that the State of New Jersey,

no more than the State of Arkansas, cannot be allowed to

delimit the effect of the Fourth Amendment by an extension of

the scope of the “Automobile Exception”.

Whether a State may, without violation of the petitioner’s

constitutional guarantee against unlawful search and seizure

refuse to apply the Exclusionary Rule retroactively with respect

to searches and seizures that were executed prior to this Court’s

determination in United States v. Chadwick, supra and

Arkansas v. Sanders, supra.

On November 21, 1979 the Appellate Division, while

affirming the petitioner’s conviction based upon Chambers, also

took the position that the petitioner was not entitled

retroactively to rights conferred by the Fourth Amendment and

the references thereto in Chadwick and Sanders. In State v.

Howery, 80 N.J. 563 (1979), the court refused to apply

retroactively the rule of Franks v. Delaware, 438 U.S. 154 (1978)

16

to a case which was in the appellate review process at the time

Franks was decided. For several reasons, this argument lacks

merit.

Judicial consideration of the retroactive effect of rulings

which affect the constitutional rights of citizens has produced

less than an ideally symmetrical pattern. In the area of the

Fourth Amendment, prior to 1965, such rulings were normally

given broad retroactive effect. In Linkletter v. Walker, 381 U.S.

618 (1965), the United States Supreme Court held that ihe

Exclusionary Rule of Mapp v. Ohio, 367 U.S. 643 (1961) should

not apply to cases before the Court in the context of collateral

attack, though it implicitly approved retroactive application to

cases not yet reduced to final judgment. See also, State v. S:nith,

37 N.J. 481 (1962).

Subsequently, in Desist v. United States, 394 U.S. 244

(1969), the Court ruled that the direct appeal/collateral review

distinction was not ironclad and that “there are no

jurisprudential or constitutional obstacles to a different cut-off

point.” /d. at 252. In so stating, the Court focused on the

deterrent effect of the Exclusionary Rule and the reasonable

reliance of law enforcement officers on the previously

established rule at the time of the challenged search. /d. at 253.

Adhering to the principle that judicial discretion is applicable in

determining retroactivity, the New Jersey Supreme Court also

noted that “there is no constitutional imperative which regulates

or fixes the cut-off date for application of a formerly valid rule,

or the date from which the mew or replacement rule must

operate.” State v. Vigliano, 50 N.J. 51, 65 (1967) (emphasis

added).

Later, in State v. Nash, 64 N.J. 464 (1974), the court

established guidelines for the use of judicial discretion in

determining the degree of retroactivity to be accorded a new

ruling. In making such a determination, said the court, the

competing considerations “are weighed by examining (1) the

vy

17

purpose of the rule and whether it would be furthered by a

retroactive application, (2) the degree of reliance placed on the

old rule by those who administered it, and (3) the effect a

retroactive application would have on the administration of

justice.” Jd. at 471.

It is significant that the issue of whether to apply a rule

retroactively is intimately related to the issue of whether the rule

announced is a “new” rule. See generally, 3 La Fave, Search and

Seizure 692-97 (1978). As made clear in Desist v. United States,

supra, only new rules, which clearly depart from previously

established norms of behavior as sanctioned by statutory or

decisional law, would be denied retroactive application. This is

so because law enforcement officers should not be penalized for

acting in accordance with a clear legal mandate existing at the

time of the search. See also, United States v. Peltier, 422 U.S.

531 (1975).

Such was the case which confronted the court in State v.

Howery, supra. There, defendants, on appeal, sought to

challenge the facial sufficiency of the search warrant, the

execution of which led to their arrests. At the time of the search,

and indeed at the time of the trial, such a challenge was clearly

and directly disallowed under State v. Petillo, 61 N.J. 165

(1972), cert. den. 410 U.S. 945 (1973). Subsequent to

defendants’ convictions, however, the holding of Petrillo was

nullified by the United States Supreme Court in Franks v.

Delaware, supra. Applying the standards of State v. Nash,

supra, the court concluded that Franks established a “new

constitutional principle” which should not accrue to the

defendants, whose convictions were obtained “in good faith

reliance on ‘then-prevailing constitutional norms.’”. State v.

Howery, supra, at 569-579. As to the third standard of Nash, the

court concluded that “the effect of retroactive application of

Franks on the administration of justice would be significant. It

would require courts to delve into the allegations of what would

doubtless be a considerable number of defendants, to the effect

that police officers had lied in affidavits long stale.”

A

The cardinal principle of the Fourth Amendment is that a

warrant is required unless some grave emergency can be shown

that necessitates an immediate search without a warrant. When

those circumstances do not exist the exception also does not

exist and a warrant must be obtained. This is the rationale of

Chadwick and Sanders. In view of the principle that a warrant is

required unless the circumstances dictate otherwise, it is evident

that Chadwick and Sanders did not enunciate a new rule of law.

Therefore, no retroactivity problem is encountered in applying

Chadwick and Sanders to this case.

The Appellate Division, however, decided that Sanders was

the promulgation of a new variant of the Exclusionary Rule. As

has been set forth, Sanders did not enunciate new law but rather

set forth that it would not extend the scope of the previously

defined “Automobile Exception” to negate the requirement of

obtaining a warrant for the search of luggage found within

automobiles. The Supreme Court of the United States was not

enunciating a new rule but instead underscored the constant

requirement of obtaining warrants except within certain

well-defined exceptions. The invalidity of the search in the

within matter is not as a result of Chadwick and Sanders but

because the fact situation did not fall into any accepted

exception.

The opinion in Sanders stresses the fact that the

“Automobile Exception” did not go so far as to permit

warrantless searches of luggage contained in automobiles. This

was not the creation of a new constitutional principle but rather

a restatement of the rights created by the Fourth Amendment. It

cannot be said that police officers had understood Chambers v.

Maroney to allow the search of anything found within an

automobile and that Chambers v. Maroney justified the actions

in this case until the promulgation of Sanders. To accept that

would set forth that police officers were more cognizant of

Chambers v. Maroney, supra, than they were of Coolidge v.

New Hampshire. It would also require the conclusion that police

officers were totally unaware of the contents of the Fourth

Amendment of the United States Constitution.

19

Retrospective application of Chadwick and Sanders would

be in conformity with the determinations made in the past by the

courts of the State of New Jersey. A detailing of such decisions

would show that such was the case until Howery was decided.

As a consequence a prospective application of Chadwick and

Sanders would serve to deprive the petitioner of his rights

pursuant to the Fifth and Fourteenth Amendments of the

United States Constitution.

The events which are the subject of the two counts of the

indictment took place on March 12, 1977. The hearing to

suppress took place on June 24, 1977 and on July 15, 1977. A

denial of the motion to suppress was issued by the Court on July

22, 1977. Thereafter, the petitioner was tried on October 12,

1977 and October 13, 1977 and was convicted on October 13,

1977. The decision in United States v. Chadwick, 97 S. Ct. 2476

was made on June 21, 1977 and Arkansas v. Sanders, 99 S. Ct.

2586 was decided on June 20, 1979.

Since the within matter was on direct appeal at the time of

the determination in Arkansas v. Sanders and the petitioner had

not been tried when Chadwick was decided, Sanders and

Chadwick should be retrospectively applied.

In State v. Branam, 161 N.J. Super. 53, 390 A. 2d 1186

(Arp. Div. 1978) on p. 1189, the Appellate Division said:

“Nevertheless, the State herein contends that

because Talbot was handed down 18 months

after commission of the instant offenses, a charge

in conformity with that opinion would give to it

an impermissible retroactive effect. The State

asserts that Talbot merely sets forth a

prophylactic rule designed to deter unacceptable

police conduct and that, because the police action

here is beyond deterrence, retroactive application

of the rule would be meaningless. It adds that the

#%

20

police here had also relied in good faith upon the

State of the law prior to Talbot which gave no

indication that such conduct contravened

‘fundamental fairness.’

We disagree. Without enumerating the many

considerations which may determine whether or

not a decision is to have retroactive effect, and

the many decisions concerning them, we

determine that the Talbot rule applies to all cases

then pending for trial or on direct appeal. We

note that the Talbot court did not declare that its

decision was to have only prospective effect. See

State v. Deatore, 70 N.J. 100, 119, 358 A.2d 163

(1976). Moreover, in Linkletter v. Walter, 381

U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1966),

which considered whether Mapp v. Ohio, 367

U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961),

should be applied to state court convictions

which had become final before that decision was

rendered, the court indicated that the general rule

is that appellate courts ordinarily will give effect

to the state of the law as it exists at the time of

the appeal, thus giving retroactive effect to a

decision at least insofar as such decision may

affect cases on direct appeal at the time it is

rendered. See Walker v. N.J. Dept. of Inst. &

Agencies, 147 N.J. Super. 458, 489, 371 A.2d 732

(App.Div. 1977), and cases cited therein.”

(Emphasis ours.)

Although it has been set forth that the principal effect of

State v. Nash, supra, is with respect to the determination of a

new rule Nash also agreed that retrospective application of the

new rule can be resorted to where the matter is still within the

area of final direct review. On p. 692 the Court said:

21

“Another form of limited retroactive effect

permits the new rule to govern the rights of the

parties to the overruling case and the rights of

parties to other cases pending, in the sense of

final direct review not having been exhausted,

when the overruling case was decided. The old

rule applies to the rights of parties in cases

terminated by a final judgment no _ longer

appealable at the time of the decision in the case

declaring new law. E.g., Linkletter v. Walker,

supra (exclusion of illegally seized evidence);

Tehan v. Shott, 382 U.S. 406, 86 S.Ct. 459, 15

L.Ed.2d 453 (1966) (prosecutor’s) comment on

defendant’s failure to testify); State v. Koch,

supra (use of uncounselled prior conviction to

affect credibility).

...As the first paragraph of this opinion

indicates, we adopt in this case, for the reasons

expressed herebelow, the third approach holding

DeBonis retroactive to all cases pending on direct

appeal when that decision was announced on

April 8, 1971).”

The attention of the Court is also respectfully directed to

State v. Brockington, 89 N.J. Super. 423, 215 A. 2d 362 (App.

Div. 1965) where on p. 364 the court said:

“One of these grounds clearly calls for reversal. It

is addressed to the trial judge’s charge on

defendant's failure to take the stand. The State

confesses error. Since this is a direct appeal,

Griffin v. State of California, 380 U.S. 609, 85

S.Ct. 1229, 14 L.Ed.2d 106 (April 23, 1965),

decided after the entry of the judgment of

conviction, must be given retroactive effect. State

v. Lanzo, 44 N.J. 560, 210 A.2d 613 (1965); and

see State v. Jacques, 86 N.J. Super. 386, 207

A.2d 165 (App. Div. 1965).”

22

To the same effect State v. Jacques, 86 N.J. Super. 386, 207

A. 2d 165 (App. Div. 1965) said:

“The question here is whether Malloy should be

applied to a conviction obtained at about the

time of the coming down of that decision, where

the conviction is on direct appeal. A similar

problem was presented after the Supreme Court’s

decision in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct.

1684, 6 L.Ed.2d 1081 (1961), rehearing denied,

368 U.S. 871, 82 S.Ct. 23, 7 L.Ed.2d 72 (1961),

where the court held that the Federal

Constitution barred the use by a state of evidence

seized as a result of an illegal search and seizure.

In State v. Smith, 37 N.J. 481, 483 et seq., 181

A.2d 761 (1962), certiorari denied, 371 U.S. 835,

83 S.Ct. 1879, 10 L.Ed.2d 1055 (1962), our

Supreme Court held that Mapp would be applied

retroactively to cases then pending or on appeal.

But see State v. Smith, 43 N.J. 67, 78-79, 202

A.2d 669 (1964), holding that Mapp would not

be given retroactive effect in a collateral attack

upon a prior judgment of conviction no longer

subject to direct appeal.

Since this is a direct appeal, we hold that Malloy

v. Hogan, above, must, in the circumstances of .

the present case, be given retroactive effect, and

this by analogy to our treatment of the search

and seizure problem under Mapp. Our reading of

the entire record convinces us that essential

justice so requires. A like result was reached in

State v. Murphy, 85 N.J. Super. 391, 204 A.2d

888 (App. Div. 1964).”

The petitioner should not be charged with the failure to

anticipate the decision in Arkansas v. Sanders, supra, and its

effect upon the admissibility of evidence. The petitioner timely

23

raised a constitutional issue which should have been considered

on his direct appeal and the record of conviction should have

been reviewed in the light of Arkansas v. Sanders

notwithstanding the predated trial. See State v. Evans, 75 N.J.

Super. 319, 183 A. 2d 137, 140, 141 (App. Div. 1962). See also,

State v. Smith, 37 N.J. 481, 181 A. 2d 761, 765 (1962).

The attention of the Court is also respectfully directed to

State v. Masi, 72 N.J. Super. 55, 177 A. 2d 773 (Law, 1962)

where the court said:

“The matter of retrospective application of

principles of law established by judicial! decision

was dealt with specifically in Fox v. Snow, 6 N.J.

12, 76 A.2d 877 (1950). In a per curiam opinion

the court said, ‘A change of the established law

by judicial decision is retrospective. It makes the

law at the time of prior decisions as it is declared

in the last decision, as to all transactions that can

be reached by it. On the other hand a change in

the settled law by statute is prospective only.’

State v. Smith, 32 N.J. 501, 161 A.2d 520 (1960)

cited by the State, is not to the contrary. There

the court affirmed a conviction and held that the

proceedings as to the admissibility of a

confession were not prejudicially erroneous. A

majority of the court (four in number), however,

stated in a concurring opinion that they preferred

a different approach and set forth their views ‘for

the future guidance of the trial bench.’ No such

approach was applied in the Mapp case. The

United States Supreme Court held that the

evidence seized should be suppressed and the

conviction was reversed. Their decision was

retrospectively applied in that case. This court is

bound to apply the rule of Mapp v. Ohio to every

case in which the issue is properly raised. State v.

ey

24

Valentin, 36 N.J. 41, 174 A.2d 737 (1961). Here

the attack upon the search and seizure was raised

by a timely application upon motion prior to

trial. The case must be decided upon the basis of

the law as it presently exists, in spite of the fact

that the law was otherwise at the time of the

seizure. Fox v. Snow, supra.”

CONCLUSION

For the foregoing reasons and based upon the foregoing

authorities the petitioner prays that a writ of certiorari issue

from this Honorable Court to review the judgment of the

Supreme Court of New Jersey and the Superior Court of New

Jersey. In the event that the petition is granted, the petitioner

prays that the conviction herein be reversed and the motion to

grant suppression of evidence seized as the result of a

warrantless search be suppressed.

Respectfully submitted,

ROBERT E. LEVY

LEVY & ROBERTSON

Attorneys for Petitioner

la

APPENDIX

OPINION OF THE APPELLATE DIVISION DATED JUNE

27, 1979

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

A-1567-77

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CYRUS HATAMI,

Defendant-Appellant.

Argued: May 29, 1979 — Decided: June 27, 1979

Before Judges Pressler and King.

On appeal from the Superior Court of New Jersey, Law

Division, Monmouth County.

Mr. Robert E. Levy argued the cause for appellant

(Messrs. Levy & Robertson, attorneys).

Mr. Steven Secare, Deputy Attorney General, argued the

cause for respondent (Mr. John J. Degnan, Attorney

General of New Jersey, attorney).

PER CURIAM

Defendant appeals on the sole ground that the police

officer’s search of his rented motor vehicle at the scene of his

arrest violated his right to be free of unreasonable searches and

2a

Opinion of the Appellate Division Dated June 27, 1979

seizures under the State and Federal constitutions. Defendant

was convicted at a bench trial of possession of heroin in

violation of N.J.S.A. 24:2la(2), and possession of heroin with

intent to distribute, contrary to N.J.S.A. 24:19a(1) and N.J.S.A.

24:21-196(2). A violation of the latter section requires proof of

“at least 3.5 grams of pure free base” and is punishable “by

imprisonment for up to life.” J/bid. Following conviction

defendant was sentenced to an aggregate term of 25 to 30 years

in State Prison consecutive to any other sentences.

The following facts were presented by the police witnesses

and fully credited by the trial judge. Defendant’s arrest was the

culmination of law enforcement officers’ attempts to execute

federal indictment warrants outstanding against him for

conspiring to import heroin into this country. The federal

warrants for the arrest of defendant were received by the New

Jersey State Police on March 11, 1977. Suspicion of defendant’s

whereabouts focused on an apartment at 31 Cedar Avenue in

Long Branch which was placed under 24-hour surveillance on

that date. The apartment was determined to have been rented by

Curt and Yvette Spichelmier also named in the federal warrants

and indictment.

At about 1:30 p.m. on March 12, a red 1977 Ford Granada

pulled into a parking lot next to the apartment and defendant

and one Williams emerged from the vehicle and entered the

apartment. Defendant carried a red airline-type shoulder bag

inside. A motor vehicle check by the surveillance team revealed

that the Granada had been rented to the defendant by a

Freehold agency.

At about 2:35 p.m. two persons, Gordon and Knipple, left

the apartment. Just before driving away in their car, Gordon

was observed putting something under the dashboard, the police

followed the Gordon vehicle, intercepted it, found a jar of white

powdery substance under the dashboard and arrested Gordon

and Knipple.

3a

Opinion of the Appellate Division Dated June 27, 1979

Other officers remained at the surveillance site and at 3:15

p.m. observed defendant and Williams leaving the apartment.

Defendant was observed carrying a brown gym bag and not the

shoulder flight bag he carried earlier. Defendant placed the gym

bag in the trunk of the rented car and drove away. The officers

followed.

The officers originally intended to follow defendant to his

next destination. However, the intervening discovery of

suspected narcotics in the Gordon and Knipple vehicle which

information was relayed to the surveillance team and the

“erratic” manner in which defendant was operating his vehicle

prompted a change in plans. The police observed defendant

over-compensating at curves and crossing over the center line so

the decision was made to stop the vehicle and effect defendant’s

arrest at the Eatontown traffic circle.

To this end, an advance police unit was parked at a service

station adjacent to the traffic circle and a plain clothes detective

walked into the roadway. As defendant’s vehicle approached the

circle it was observed veering sharply to the right to avoid

striking the car at its front. The plain clothes officer approached

the defendant’s vehicle, displayed his State Police identification

and demanded that defendant shut off the engine. The tailing

police vehicle arrived at the scene at this point.

After defendant failed to respond to repeated police

requests to turn off his engine, one of the officers reached into

the car and turned the ignition off. Thereupon, defendant and

Williams were ordered out of the car. Defendant appeared dull-

witted and sluggish. His speech was slurred, his eyes were

bloodshot and he “appeared to be under the influence.” There

was a strong odor of marijuana upon his hair and clothes. As

defendant was led to a nearby parking lot he appeared to be

staggering. Defendant was placed under arrest pursuant to the

federal warrants and for being under the influence of a

controlled dangerous substance.

|

4a

Opinion of the Appellate Division Dated June 27, 1979

While the defendant was being questioned one of the

officers drove defendant’s rented vehicle off the roadway onto an

adjacent parking lot. A search of defendant’s person revealed no

weapons or contraband.

The car was then searched at the scene of the arrest.

Nothing was found in the passenger compartment. A search of

the trunk revealed the brown gym bag. The police opened the

gym bag and discovered several items relating to narcotic

trafficking including an Ohaus gram scale, an electric blender,

and several white jars similar to the one recovered earlier from

the Gordon vehicle. The bag also contained a pair of women’s

platform shoes. Inspection of the shoes at the scene revealed

fresh white glue around the soles. The police removed the heels

and discovered a number of condoms containing heroin inside

the hollowed-out heels. The police had no search warrant.

Defendant contends that a warrant was necessary before the

police could search his rented car and that this on-the-scene

search contemporary with his arrest pursuant to the federal

warrants and the under the influence charge violated his

constitutional right. Defendant does not question the officers’

right to arrest.

We disagree and find this case to be controlled by

Chambers v. Maroney, 399 U.S. 42 (1970). See also State v.

Ercolano, 79 N.J. 25, 32-33 (1979). Indeed this may be a

stronger case as the search took place at the scene of the arrest.

In Chambers the search was made after the vehicle was seized

and taken back to the police station. In Chambers the weapons

used in the robbery and the fruits of the crime were discovered

“concealed in a compartment under the dashboard.” /d. at 44.

Here they were discovered in a gym bag in the trunk. In

Chambers the Supreme Court squarely held that the arresting

officers had the right to make a prompt on-the-scene search of

the entire vehicle coincidental with the valid arrest of the

occupant on felony-type charges so long as probable cause

existed to search.

Sa

Opinion of the Appellate Division Dated June 27, 1979

We have no doubt that sufficient probable cause existed at

the scene for the arresting officers to believe that defendant’s

rented car contained drugs and drug-related paraphernalia based

on the amalgam of facts known to the police at the time of

defendant’s arrest.

We find the following language from Chambers apposite to

this situation:

... For constitutional purposes, we see no

difference between on the one hand seizing and

holding a car before presenting the probable

cause issue to a magistrate and on the other hand

carrying out an immediate search without a

warrant. Given probable cause to search, either

couse is reasonable under the Fourth

Amendment.

On the facts before us, the blue station

wagon could have been searched on the spot

when it was stopped since there was probable

cause to search and it was a fleeting target for a

search. The probable-cause factor still obtained

at the station house and so did the mobility of

the car unless the Fourth Amendment permits a

warrantless seizure of the car and the denial of its

use to anyone until a warrant is secured. In that

event there is little to choose in terms of practical

consequences between an immediate search

without a warrant and the car’s immobilization

until a warrant is obtained. The same

consequences may not follow where there is

unforseeable cause to search the house. Compare

Vale v. Louisiana, 399 U.S. 30, 20 L.Ed. 2d 409,

90 S.Ct. 1969. But as [Carroll v. United States,

267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1924)]

6a

Opinion of the Appellate Division Dated June 27, 1979

held, for the purposes of the Fourth Amendment

there is a constitutional difference between

houses and cars. [399 U.S. at 52].

The trial judge properly denied the motion to suppress

because the police had probable cause to search defendant’s

vehicle and the trunk’s contents at the time of his arrest.

Affirmed.

A true copy

s/ Elizabeth McLaughlin

Clerk

ss

7a

OPINION OF THE APPELLATE DIVISION DATED

NOVEMBER 21, 1979

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

A-1567-77

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CYRUS HATAMI,

Defendant-Appellant.

Argued: May 29, 1979 — Decided: June 27, 1979

Reargued: November 7, 1979 — Decided: November 21,

1979

Before Judges Pressler and King.

On appeal from the Superior Court of New Jersey, Law

Division, Monmouth County.

Robert E. Levy argued the cause for appellant (Levy &

Robertson, attorneys).

Allan J. Nodes, Deputy Attorney General, argued the

cause for respondent (John J. Degnan, Attorney General

of New Jersey, attorney).

PER CURIAM

Our opinion in this matter was initially filed on June 27,

1979, before the text of the decision of the United States

Supreme Court in Arkansas v. Sanders, U.S. —— (1979)

‘3

Opinion of the Appellate Division Dated November 21, 1979

(decided on June 20, 1979) was available to us. On July 23, 1979

we granted defendant's petition for rehearing in order to reassess

his appellate contentions in light of Arkansas v. Sanders, supra.

Thereafter, the opinion of our Supreme Court in State v.

Howery, 80 N.J. 563, 568-571 (1979) (decided July 20, 1979)

became available to us.

The search in the case before us took place on March 12,

1977. In our initial opinion we decided that this warrantless

search of defendant’s vehicle, which led to discovery of the

substantial amount of heroin concealed in the wooden heels of

the shoes in the gym bag located in the truck, passed

constitutional muster under the so-called “automobile

exception” to the Warrant Clause. We stand on that conclusion.

Chambers v. Maroney, 399 U.S. 42 (1970).

Prior to the United States Supreme Court’s decision in

Arkansas vy. Sanders, supra, there was no decision of that Court

which forbade the search of luggage uncovered during an

otherwise valid, but warrantless, automobile search. Arguably,

United States v. Chadwick, 433 U.S. | (1977), decided on June

21, 1977, could have been so-construed, but we view the seizure

there of the footlocker as it was placed in the open trunk of a

parked car as a luggage search, not a motor vehicle search. See

discussion in Arkansas v. Sanders, Os cents cites LET

(concurring opinion of Chief Justice Burger with whom Justice

Stevens joined).

In any event, constitutional limitations on the search of

luggage seized with probable cause during a valid warrantless

search of motor vehicle were not clearly established until

Arkansas v. Sanders, supra, was decided on June 27, 1979.

Neither Chadwick nor Sanders had been decided when the

search in the present case was made on March 12, 1977. In State

v. Howery, supra, 80 N.J. at 569, our Supreme Court refused to

apply the exclusionary rule retroactively. Our Supreme Court

9a

‘Opinion of the Appellate Division Dated November 21, 1979

concluded that the deterrent purposes of the exclusionary rule

were not served by retroactive application, especially where the

reliability of the evidence was unquestioned. See United States v.

Peltier, 422 U.S. 531 (1975). We conclude here, as well, that the

“new variant of the exclusionary rule”, confirmed by Sanders

and perhaps presaged by Chadwick, should have prospective

effect only. Ibid. See also United States v. Montgomery, 558 F.

2d 311 (5 Cir. 1977); Nastu v. State, 26 Cr. L. 2117 (Tex. Crim.

App. 1979).

We hold therefore that since the search in the instant case

was valid when made it may not be attacked retrospectively,

even on direct appeal.

Affirmed.

A true copy

s/ Elizabeth McLaughlin

Clerk

10a

ORDER DENYING PETITION FOR CERTIFICATION

DATED FEBRUARY 11, 1980

SUPREME COURT OF NEW JERSEY

C-391 SEPTEMBER TERM 1979

STATE OF NEW JERSEY,

Plaintiff-Respondent,

y.

CYRUS HATAMI,

Defendant-Petitioner.

To the Appellate Division, Superior Court:

A petition for certification of the judgment in A-1567-77

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 1Ith day of February, 1980.

s/ Stephen W. Townsend

Clerk

FILED

Feb. 15, 1980

lla

ORDER DENYING MOTION FOR RECONSIDERATION

OF ORDER DENYING PETITION FOR CERTIFICATION

DATED APRIL 29, 1980

SUPREME COURT OF NEW JERSEY

M-708 SEPTEMBER TERM 1979

STATE OF NEW JERSEY,

Plaintiff-Respondent

VS.

CYRUS HATAMI,

Defendant-Movant.

This matter having been duly presented to the Court, it is

ORDERED that the motion for reconsideration of order

denying petition for certification is denied.

WITNESS, the Honorable Robert ~N. Wilentz, Chief

Justice, at Trenton, this 29th day of April, 1980.

s/ Stephen W. Townsend

Clerk

FILED

Apr. 30, 1980

12a

RELEVANT STATUTES

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

“a. Except as authorized by this act, it shall be

unlawful for any person knowingly or

intentionally:

1. To manufacture, distribute, or dispense,

or to possess or have under his control with

intent to manufacture, distribute, or dispense, a

controlled dangerous substance... .”

N.J.S.A. 24:21-19b(2):

“b. Any person who violates subsection a. with

respect to:

2. A substance, in a quantity of one ounce

or more including any adulterants or dilutants,

classified in Schedules I or II which is a narcotic

drug, provided that there are included at least 3.5

grams of the pure free base Schedule I or II

narcotic drug, is guilty of a high misdemeanor

and shall be punished by imprisonment for up to

life, a fine of not more than $25,000.00, or

both... .”

N.J.S.A. 24:21-20a(2):

“a. It is unlawful for any person, knowingly or

intentionally, to obtain, or to possess, actually or

constructively, a controlled dangerous substance

unless such substance was obtained directly, or

pursuant to a valid prescription or order from a

practitioner, while acting in the course of his

13a

Relevant Statutes

professional practice, or except as otherwise

authorized by this act. Any person who violates

this section with respect to:

2. A substance, in quantity of | ounce or

more including any adulterants or dilutants,

classified in Schedule I or II which is a narcotic

drug, provided that there are included at least 3.5

grams of the pure free base Schedule | or II

narcotic drug, is guilty of a high misdemeanor

and shall be punished by imprisoninent for not

more than 7 years, a fine of not more than

$15,000.00, or both... .”