Opposition — Arkansas v. Haynes

RECEIVED

Nov 24 1980

IN THE OFFICE OF THE 7

SUPREME COURT OF THE UNITED STATES supreme COURT, U

OCTOBER TERM, 1980

STATE OF ARKANSAS, )

Petitioner

vs. No, 80-691

WILLIAM THOMAS HAYNES,

Respondent )

MOTION FOR LEAVE TO PROCEED

Itl FORMA PAUPERIS

The respondent, by his attorney, Jackson Jones, Deputy State Appellate

Defender, hereby moves that he be allowed to proceed in forma pauperis in

this Court for the reasons set out in the affidavit accompanying this

motion.

The respondent proceeded in forma pauperis in the trial court and

On appeal to the Arkansas Supreme Court.

Respectfully submitted,

llate Defender

1515 Building, Suite 714

Little Rock, Arkansas 72202

(501) 370-5515

/\

Attorney for Respondent

CERTIFICATE OF SERVICE

I, Jackson Jones, hereby certify that a copy of the foregoing motion

for leave to proceed in forma pauperis was hand-delivered to Victra L.

Fewell, Assistant Attorney General of Arkansas, one of the attorneys for

the petitioner, at her office in the Justice Building, Little Rock, Arkansas,

on this 2/<t day of November, 1980.

IN THE

SUPREME COURT OF THE UNITED STATES

STATE OF ARKANSAS,

Petitioner

vs. No. 89-691

WILLIAM THOMAS HAYNES,

Respondent

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AFFIDAVIT IN SUPPORT OF MOTION TO PROCEED

IN FORMA PAUPERIS

1, William Thomas Haynes, being first duly sworn, depose and say that

I am the respondent in the above-entitled case; that in. support of my

motion to proceed without being required to prepay fees, costs or give

security therefor, or comply with this Court's printing requirements,

I state that because of my poverty I am unable to pay the costs of said

proceeding or to give security therefor; that I believe I am entitled to

redress; and that the issues which I desire to present in my response to

the petition for writ of certiorari are the following: the decision of ©

the Arkansas Supreme Court in the above-entitled case was correct; even

if there was a federal question involved in this case which was wrongly

decided, the judgment of the Arkansas Supreme Court was based upon an

adequate and independent nonfederal or state ground.

1 further swear that the responses which I have made to the questions

and instructions below relating to my ability to pay the cost of responding

to the State's petition for writ of certiorari, and for briefing the case

on the merits if required, are true.

1. Are you presently employed? XO

a. If the answer is yes, state the amount of your salary or wages

per month and give the name and address of your employer.

*

b. If the answer is no, state the date of your last employment and

the amount of the salary and wages per month which you received.

2. Have you received within the past twelve months any income from a

business, profession or other form of self-employment, or in the

form of rent payments, interest, dividends, or other source? MO

( i si €

a. If the answer is yes, describe each source of income, and

state the amount received from each during the past twelve

months.

3. Do you own any cash or checking or savings account? NO

a. If the answer is yes, state the total value of the items

owned,

4. Do you own any real estate, stocks, bonds, notes, automobiles, or

other valuable property (excluding ordinary household furnishings

and clothing)? NO

a. If the answer is yes, describe the property and state its

approximate value.

5. List the persons who are dependent upon you for support and state

your relationship to those persons.

I proceeded in forma pauperis in the state trial court and on appeal to

the Arkansas Supreme Court.

I understand that a false statement or answer to any questions in this

affidavit will subject me to penalties for perjury.

STATE OF ARKANSAS

COUNTY OF LINCOLN

- /

SUBSCRIBED AND SWORN TO before me this —~</ day of November, 1980.

My Commission Expires: a : r

, , . =

CERTIFICAT® OF MAILING

I, Seckson Murry Jones, am a member in good standing of the Bar of

this Court. I hereby state pursuant to Rule 28 of the Rules of the

Supreme Court that the requisite number of copies of the respondent's

brief in opposition to petition for writ of certiorari (No. 80-691)

was placed in the United States mail, postage prepaid (first class),

. addressed to the Clerk of the Supreme Court of the United States,

Washington, D.C. 20543, on the Zlex day of November, 1980. The brief

is due to be filed on November 23, 1980.

STATE OF ARKANSAS

COUNTY OF PULASKI

Sworn to and subscribed before me this 421 S'day of November, 1980.

Brat Qe —

My Commission Expires:

SB-1- 8 \

CERTIFICATE OF SERVICE

I, Jackson Murry Jones, Deputy State Appellate Defender, hereby

certify that a copy of the foregoing brief in opposition to pet‘tion for

writ of certiorari (No. 80-691) was hand-delivered to Victra L. Fewell,

Assistant Attorney General of Arkansas, one of the attorneys for the

petitioner, Justice Building, Little Rock, Arkansas, on this Alex day of

November, 1980.

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

STATE OF ARKANSAS

PETITIONER

VS.

NO. 80-69]

WILLIAM THOMAS HAYNES RESPONDENT

BRIEF IN OPPOSITION

TO

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF ARKANSAS

E. ALVIN SCHAY

State Appellate Defender

JACKSON JONES

Deputy State Appellate Defender

1515 Building, Suite 714

Little Rock, Arkansas 72202

(501) 370-5515

ATTORNEYS FOR RESPONDENT

QUESTION PRESENTED FOR REVIEW

Whether the Arkansas Supreme Court erroneously reversed the

respondent's conviction because of the introduction of evidence

seized from the respondent's apartment several hours after police

officers had made a warrantless and non-consensual intrusion into

the apartment under non-exigent circumstances and seized, or

"secured", the apartment and the persons (respondent and his

father) therein while other officers applied for and obtained

a search warrant.

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW. 2... + ee eee er ee er “ae

TABLE OF CONTENTS «cs ce tee vss oes. @ eee 8 Oe 0% ii

TABLE OF AUTHORITIES . 2. ee ee eee ey a ee ee ili

OPINIONS BELOW . 1... ewes . +> 6k Oe 8 he ok cee . iv

JURISDICTION . . we ew we we we Lat an tenes ee coco e W

CONSTITUTIONAL PROVISIONS AND RULES... ....- seh neee e

STATEMENT OF THE CASE . . 2. we we eevee ve ve verve oe 0 0 WI

ARGUMENT . 2. we we ee eee ae ee Oi eRe ee i ewe ae oo"

CONCLUSION ... eee Se ee eee se ee a or 4

ii

TABLE OF AUTHORITIES

CASES: Page

Berea College v. Kentucky, 21] U.S. 45 (1908) .........6. 1

Chambers v. Maroney, 399 U.S. 42 (1970)... 1... ee ee eee 3

Fox Film Corp. v. Muller, 296 U.S. 207 (1935) ........4.6. 1

Haynes v. State, 269 Ark. _, 602 S.W.2d 599 (1980). . . iv

Murdock v. City of Memphis, 20 Wall. 590 (1875) ......... 1

Payton v. New York, U.S. (April 15, 1980)... ie 4%

Tones ¥. Mite, 423 U.S. GF (ISTE) wn cet ewe ee eee ‘ 3

CONSTITUTIONAL PROVISIONS, STATUTES, AND RULES:

Constitution of the United States, Amendment IV....... ‘ iv

Constitution of the United States, Amendment XIV .......4-. iv

Constitution of Arkansas, Article 2, Section 15......4+e646.-. iv

22: 0.5.8... See... ea a a a eee dat ata . iv

Arkansas Rules of Criminal Procedure, Rule 19.1(a) We les

Arkansas Rules of Criminal Procedure, Rule 13.2(c) ...... v, 3

Arkansas Rules of Criminal Procedure, Rule 14.3 ..... v, 1, 2,3

Arkansas Rules of Criminal Procedure, Rule 16.2(e) ; v, 2

Te

444

OPINIONS BELOW

Haynes v. State, 269 Ark. , 602 S.W.2d 599 (1989)

JURISDICTION

28 U.S.C. Sec. 1257(3)

CONSTITUTIONAL PROVISIONS AND RULES

Constitution of the United States, Amendment IV:

The right of the people to be secure in their persons, houses, papers,

ant 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.

Constitution of the United States, Amendment XIV:

(N)or shall any state deprive any person of life, liberty, or property,

Without due process of law....

Constitution of Arkansas, Article 2, Section 15:

The right of the people of this State to be secure in their persons,

houses, papers and effects against unreasonable searches and seizures

Shall not be violated; and no warrant shall issue except upon probable

cause, supported by oath or affirmation, and particularly describing the

Place to be searched and the person or thing to be seized.

Arkansas Rules of Criminal Procedure (Ark. Stat. Ann. Vol. 4A), Rule 10.1(a):

"Search" means any intrusion other than an arrest, by an officer under

lor of authority, upon an individual's person, property, or privacy,

Ter the purpose of seizing individuals or things or obtaining information

b\ inspection or surveillance, if such intrusion, in the absence of legal

‘uthority or sufficient consent, would be a civil wrong, criminal offense,

“! violation of the individual's rights under the Constitution of the

Vnited States or this state.

des ——

Arkansas Rules of Criminal Procedure (Ark. Stat. Ann. Vol. 4A), Rule 13.2(c):

Except as hereafter provided, the search warrant shall provide that it

be executed between the hours of six a.m. and eight p.m., and within a

reasonable time, not to exceed sixty (60) days. Upon a finding by the

issuing judicial officer of reasonable cause to believe that:

(i) the place to be searched is difficult of speedy access; or

(ii) the objects to be seized are in danger of imminent removal; or

(iii) the warrant can only be safely or successfully executed at

nighttime or under circumstances the occurrence of which is difficult to

predict with accuracy;

the issuing judicial officer may, by appropriate provision in the warrant,

authorize its execution at any time, day or night, and within a reasonable

time not to exceed sixty (60) days from the date of issuance.

Arkansas Rules of Criminal Procedure (Ark. Stat. Ann. Vol. 4A), Rule 14.3:

An officer who has reasonable cause to believe that premises or a vehicle

contain:

(a) individuals in imminent danger of death or serious bodily harm; or

(b) things imminently likely to burn, explode, or otherwise cause death,

serious bodily harm, or substantial destruction of property; or

(c) things subject to seizure which will cause or be used to cause

death or serious bodily harm if their seizure is delayed;

may, without a search warrant, enter and search such premises and vehicles,

and the persons therein, to the extent reasonably necessary for the pre-

vention of such death, bodily harm, or destruction.

Arkansas Rules of Criminal Procedure (Ark. Stat. Ann. Vol. 4A), Rule 16.2(e):

. - Amotion to suppress evidence shall be granted only if the court

finds that the violation upon which it is based was substantial, or if

otherwise required by the Constitution of the United States or of this state.

In determining whether a violation is substantial the court shall consider

all the circumstances, including:

(i) the importance of the particular interest violated;

(ii) the extent of deviation from lawful conduct;

(iii) the extent to which the violation was willful;

(iv) the extent to which privacy was invaded;

L

(v) the extent to which exclusion will tend to prevent violations of

these rules;

(vi) whether, but for the violation, the things seized would have been

discovered; and

(vii) the extent to which the violation prejudiced the moving party's

ability to support his motion, or to defend himself in the proceedings in

which the things seized are sought to be offered in evidence against him.

STATEMENT OF THE CASE

The respondent was charged with delivery of LSD, possession of LSD

with intent to deliver, and possession of marijuana, all in violation of

Ark. Stat. Ann. Sections 82-2601 et seq. (Repl. 1976). Prior to his trial,

the respondent filed a motion to suppress evidence\(marijuana, LSD, and

"marked" money) seized from his apartment on the ground of unlawful

search and seizure; after a hearing the motion was denied. On appeal,

the Arkansas Supreme Court ruled that the evidence should have been

suppressed; therefore, the respondent's convictions were reversed and the

case was remanded for a new trial.

The underlying facts may be briefly summarized as follows:

In April 1978 the respondent was living with his father in a room at

a motel in Harrison, Arkansas. On April 22, the police received information

from an informant concerning the respondent which led the police to place

his room under surveillance. (T. 155) The surveillance was continued on

April 23. On that date the informant was given "marked" money by the

police with which to make a "controlled buy" of drugs from the respondent.

The informant was not successful in making the purchase at that time. (T. 157)

Later during the evening of April 23, a second informant was given $5.00 in

"marked" money with which to make a “controlled buy" from the respondent

at the motel (T. 122), and he allegedly did so, at approximately 11:00 p.m.,

while the police continued to watch the respondent's room. (T. 85) After

the "controlled buy" was allegedly made, some of the officers involved in

the investigation began the process of applying for a warrant, while another

officer, Officer Hutchinson, acting pursuant to his indeperdent judgment,

immediately went to the respondent's room, entered it without the consent

of the respondent or his father, who were in the room, and, together with

other officers, occupied it until the warrant arrived approximately 3 1/2

hours later. (T. 86, 89, 95, 128) The respondent testified that when

Officer Hutchinson entered his room without a warrant he asked him to

leave (T. 70), and this testimony was uncontradicted. In fact, the officer

admitted that he did not receive permission to enter the room. (T. 94-95, 99;

see also T. 56,74) The officer's purpose in entering the room was, in his

words, to "seize the room" until an anticipated search warrant arrived. |

(T. 198) A full-scale search was not conducted until the warrant arrived;

however, the officers' occupation of the room before the search warrant

was obtained was not entirely passive. The respondent testified that one

of the officers, without consent, seized a cannister containing marijuana

from a dresser drawer prior to the time the warrant arrived. (T. 73-74)

The officer denied that he took the cannister from the drawer and stated

that the respondent had given it to him (T. 126), but the officer's own

account of the incident reveals that the marijuana was discovered as a

result of persistent and impermissible questioning by the officer. The

following is a portion of the officer's testimony:

Q. After you read him his rights, did he make any statement

or volunteer any information?

A. Yes, he did.

Q. And how did that come about?

A. I asked him about drugs and he kept saying I don't know

what you are talking about and finally he said "Post, all

I have is in that dresser drawer," and he went to the dresser

drawer and got it out and it was marijuana. (T. 125)

Approximately six ounces of marijuana, 21 "hits" of LSD (approximately

609 micrograms), and the "marked" money used by the informant to make the

“controlled buy" were seized from the respondent's apartment and introduced

into evidence at his trial over his continuing objections. At the conclusion

of the trial, the jury found the respondent guilty as charged and fixed his

punishment as follows: for possession of marijuana, 1 year's imprisonment

in the county jail and a fine of $1,000.00; for delivery of LSD, 20 years'

imprisonment in the state penitentiary and a fine of $15,900.00; for

possession of LSD with intent to deliver, 20 years’ imprisonment in the

state penitentiary and a fine of $15,000.00. The trial court ordered that

the two 20-year terms of imprisonment be served consecutively.

ARGUMENT

The respondent submits that this case is not one which requires the

exercise of this Court's extraordinary and discretionary jurisdiction,

The judgment of the Arkansas Supreme Court is correct on the basis of

settled constitutional principles announced by this Court. Furthermore,

the judgment can be sustained on independent grounds of state law, and

thus a review of the judgment on writ of certiorari is inappropriate.

Fox Film Corp. v. Muller, 296 U.S. 207, 210 (1935); Berea College v.

Kentucky, 211 U.S. 45, 53 (1908); Murdock v. City of Memphis, 20 Wall.

590, 636 (1875).

The ruling of the Arkansas Supreme Court in this case is unexcep-

tionable: police officers in this state will not intrude into a person's

home without a warrant for the purpose of searching for or seizing persons

or things, unless a true emergency exists. Arkansas Rules of Criminal

Procedure, Rule 19.1 and Rule 14.3; Payton v. New York, €.3;

(April 15, 1980).

Rule 10.1 of the Rules of Criminal Procedure defines a "search" as

any intrusion other than an arrest, by an officer under

color of authority, upon an individual's person, property,

or privacy, for the purpose of seizing individuals or

things or obtaining information by inspection or surveil-

lance, if such intrusion, in the absence of legal authority

or sufficient consent, would be a civil wrong, criminal

offense, or violation of the individual's rights under the

Constitution of the United States or this state.

According to the Commentary to Rule 10.1, the key word in this definition

is “intrusion,” which is "a term sufficiently bread to encompass any

legally cognizable interference with an individual's right to privacy."

Under Rule 10.1, the "search" of the respondent's room actually began

when Officer Hutchinson first entered the room -- i.e., when he intruded

upon the respondent's property and privacy -- with the ultimate intention

of seizing persons or things found there. In the absence of exigent

circumstances, the search of the respondent's room was therefore illegal

in its inception and could not be transformed into a legal search by the

belated production of a warrant.

Rule 14.3 of the Rules of Criminal Procedure authorizes “emergency

searches” when exigent circumstances exist:

.

C. Cc

An officer who has reasonable cause to believe that premises

or a vehicle contain:

(a) individuals in immfnent danger of death or serious

bodily harm; or

(b) things imminently likely to burn, explode, or otherwise

cause death, serious bodily harm, or substantial des-

truction of property; or

(c) things subject to seizure which will cause or be used

to cause death or serious bodily harm if their seizure

is delayed;

® may, without a search warrant, enter and search such premises

and vehicles, and the persons therein, to the extent necessary

for the prevention of such death, bodily harm or destruction.

The Arkansas Supreme Court correctly found that an emergency, within the

meaning of Rule 14.3, did not exist in this case. There was certainly no

evidence that the respondent's room contained individuals in danger of

death or serious bodily harm; or things likely to burn or explode; or

things subject to seizure which would cause or be used to cause death or

serious bodily harm if their seizure were delayed. There was even no

evidence that the respondent knew that his residence was under survetllance

by the police officers, and thus there was no danger that he would feel

compelled to destroy any evidence while the officers applied for a warrant.

It is clear that Officer Hutchinson's purpose in entering the respondent's

room was not to effect a routine felony arrest culminating in the immediate

removal of the arrestee to a police station; his admitted purpose, as noted

in the Arkansas Supreme Court's opinion, was to “seize the room" until an

anticipated search warrant arrived. Even if the Arkansas Supreme Court

had found, however, that the entry of the respondent's room by Cfficer

Hutchinson was for the purpose of making an arrest and was not the initia-

tion of a “search” within the meaning of Rule 10.1, the entry was neverthe-

less unlawful, inasmuch as it involved a warrantless intrusion into the

app2llant's home in the absence of exicent circumstances, Payton v. New

York, supra, and the court was justified in applying the exclusionary rule

in this case to deter such illegal entries into homes as occurred here.

Rule 16.2(e) of the Rules of Criminal Procedure provides that, in determining

whether a motion to suppress evidence should be granted, the state courts

must consider, inter alia, (1) the importance of the particular interest

violated; (2) the extent of deviation from lawful conduct; (3) the extent

to which privacy was violated; and (4) the extent to which exclusion will

tend to prevent violations of these rules.

ma}

C cece *

The Arkansas Supreme Court held that "seizing the room" in this case.

3 1/2 hours before a search warrant was obtained was "as much of an invasion

of privacy as searching the room." This ruling is analogous to and consistent

with this Court's ruling in Chambers v. Maroney, 399 U.S. 42 (1970), that

the intrusion involved in initially seizing a car on the highway and holding

it for the short time required to seek a warrant is so substantial as to be

constitutionally indistinguishable from the intrusion involved in a subsequent

search of the vehicle. "(T)he basic premise of Chambers’ conclusion that

to warrantless searches was that temporary seizures are themselves intrusive.”

Texas v. White, 423 U.S. 67, 71-72 (1975)(Mr. Justice Marshall, dissenting)

(emphasis added).

If an emergency exists, no warrant is required before police officers

may enter a person's home for the purpose of conducting a search or seizure.

Arkansas Rules of Criminal Procedure, Rule 14.3. If, however, no such

emergency exists, as it clearly did not in this case, police officers are

not authorized to commit the kind of intrusion and invasion of privacy

that occurred here without a prior showing of reasonable cause to a judicial

officer and the issuance of a warrant. And even then, i.e., after the warrant

has been issued, a nighttime intrusion such as occurred in this case is not

allowed in this state unless the issuing judicial officer finds a special

need for it. Arkansas Rules of Criminal Procedure, Rule 13.2. In this

regard, although a Rule 13.2 issue was not raised in the trial court and

tus was not discussed in the respondent's brief on appeal to the Arkansas

Supreme Court, it is noteworthy that in the "Affidavit for Search Warrant"

in this case one of the reasons given for the necessity of the immediate

issuance and execution of a search warrant was that police officers had

already "secure(d) the premises and persons involved" and were “presently

awaiting a search warrant." (T. 19) The respondent submits that, if the

issue were properly presented to it, the Arkansas Supreme Court would surely

hold that our Rules of Criminal Procedure were not intended to sanction

any attempt by police officers to receive judicial approval of a continuing

intrusion by showing that the intrusion had already been initiated by them.

“-

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C

Police authorities in this state have been put on notice by the

Arkansas Supreme Court that the highly intrusive "securing" (i.e.,

seizing) of a home in a non-emergency situation while application for a

search warrant is being made will not be tolerated. The respondent

respectfully submits that this ruling should be allowed to stand.

CONCLUSION

For the foregoing reasons, the respondent asks that the petition for

a writ of certiorari be denied.

Respectfully submitted,

E. ALVIN SCHAY

State Appellate Defender

- 7 ¢ bs. a

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\ eputy State Appellate Defender

~“1515 Building, Suite 714

Little Rock, Arkansas 72202

(501) 370-5515

ATTORNEYS FOR RESPONDENT