Petitioners Reply Brief — Perry v. Illinois

No. 80-870

In Tis

Supreme Court of the United States

OCTOBER TERM, 1980

DENNIS PERRY JR.,

PETITIONER,

vs.

PEOPLE OF THE STATE

OF ILLINOIS,

RESPONDENT.

ON

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF ILLINOIS.

REPLY IN SUPPORT OF CERTIORARI

William J. Stevens

Counsel for the Petitioner

Foss, Schuman & Drake

11 South La Salle Street

6th Floor

Chicago, Illinois 60603

Telephone: (312) 782-2610

i

CASES

ARKANSAS v. SANDERS 442 U.S.

753 (1979)

CHAMBERS v. MARONEY 399 U.S.

42 (1970)

COLORADO v. BANNISTER U.S.

66 Led.2d 1, 101 S.Ct. 42,

(Oct. 20, 1980)

COOLIDGE v. NEW HAMPSHIRE

403 U.S. 443 (1971)

DELAWARE v. PROUSE 440 U.S.

648 at 662-663 (1979)

McDONALD v. UNITED STATES

335 U.S. 451 at 455-

456

PRESTON v. UNITED STATES

376 U.S. 364 (1964)

SOUTH DAKOTA v. OPPERMAN

428 U.S. 364 (1976)

TEXAS v. WHITE 423 U.S. 67

(1975)

TRUPIANO v. UNITED

STATES 334 U.S. 699 at

706

UNITED STATES v. CHADWICK

443 U.S. 1, (1977)

PAGE

Jos

ii

CASES PAGE

UNITED STATES v. JEFFERS 8

342 U.S. 48 at 51

VALE v. LOUISIANA

399 U.S. 30 at 34 9

-l|-

The State seeks to justify the

search of the vehicle and the examination

of the stereo amplifier serial number

in the police station parking area on the

ground that they had probable cause to

believe that the contents of the auto-

mobile offended against the law. No

such probable cause existed. There is

nothing suspicious about students mov-

ing from one dormitory to another with

personal effects including stereo am-

plifiers in their cars. Here the offi-

cers who saw the students loading things

into the car at the dormitory did not

identify any of the items being loaded

as stolen items. Even when Lt. Keim saw

the stereo in the front seat when the

Petitioner was arrested, Keim did not

recognize it as matching the brand of the

stereo stolen. He did not recognize it

-2-

as a Pioneer Stereo (R.P.46). He

could not see the serial number of the

model of stereo at the time of arrest.

The police did not have reasonable

grounds to believe that the stereo was

an “offending item" until after they

conducted the search challenged. Until

they searched for the serial number,

they had no reasonable grounds to be-

lieve that the stereo had come from the

burglarized house. Without probable

cause, the "automobile exception" has

no applications.

The state argues for a rule that

Once the officers have probable cause to

believe that an automobile contains items

offending against the law, those items

may be seized without a warrant long

after the automobile is securely in

-3-

police custody. Such a contention

rips the cases of Chambers v. Maroney,

399 U.S. 42 (1970), Texas v. White,

423 U.S. 67 (1975), and Colorado v.

Bannister, U8. 66 Led2d. l,

101 §.Ct. 42, (Oct. 20, i986, eee ee

the whole fabric of search and seizure

law created by cases like Delaware v.

Prouse, 440 U.S. 648 at 662-663 (1979)

(the 4th Amendment protects privacy in

autos), Coolidge v. New Hampshire, 403

U.S. 443 (1971) (Warrant required to

search an automobile in the absence of

a clearly defined exception). Preston

v. United States, 376 U.S. 364 (1964)

(a warrant is required after the vehicle

is secure and the driver is no longer

near the vehicle). United States v.

Chadwick, 443 U.S. 1 (1977) (exigent

circumstances do not justify search of

-4-

a footlocker taken from an auto).

Arkansas v. Sanders, 442 U.S. 753

(1979) (exigent circumstances do

not justify searching a suitcase

when an auto carring it is stopped).

South Dakota v. Opperman, 428 U.S.

364 (1976) (investigative searches

of automobiles require warrants or

other clearly defined exceptions).

From the totality of these cases,

the Court ought to define a rule

that prohibits a warrantless search

of automobiles after exigent circum-

stances cease to exist. Colorado v.

Bannister , U.S. » 66 Led.2d l,

101 S.Ct. 42 (Oct. 20, 1980) does not

preclude such a rule. There the lug

nuts were seized immediately after

the vehicle was stopped. Exigent cir-

cumstances still existed. Chambers v.

=5=

Maroney, 399 U.S. 42 and Texas v.

White, 423 U.S. 67 also represent

cases where exigent circumstances

Still exist. In both cases, the

search occurred as soon as the car

was brought to the police station.

"The probable cause factor still

obtained at the station house and

so did the mobility of the car..."

399 U.S. at 52. In the present case

"exigent circumstances" no longer

existed. Perry and the car he had

been driving were spearated. Perry

was in the police station and the

car was parked outside the station.

The car was not going anywhere and

neither was Perry. As long as the

driver of the car was locked up, the

failure to have a neutral and detached

magistrate pass on the issue of prob-

able cause should not be excused on

=6=

the ground that searching the car

without a warrant would be quicker and

more convenient. In Trupiano v. United

States, 334 U.S. 699 at 706, the Court

observed that "no reason is offered for

not obtaining a search warrant except

the inconvenience to the officers and

some slight delay necessary to prepare

papers and present the evidence to a

magistrate. These are never very con-

vincing reasons...to bypass the con-

Stitutional requirement..." Rather

than permitting the police to justify

not getting a warrant on the ground

that it is more convenient for the user

of the automobile to have the police

ransack his vehicle promptly and not

hold his vehicle until probable cause

can be determined by a magistrate, the

Court should fashion a rule which per-

=7=

mits the person inconvenienced -

the motorist - to choose between

l. consenting to the search now so

that he can be on his way, or 2. in-

Sisting that a judicial officer deter-

mine that probable cause exists for

the search. The Court should grant

Certiorari to determine how long ex-

igent circumstances last and when a

warrant must be obtained.

The State contends that this

Court is not free to consider the

question: is this warrantless search

justified as an "inventory" search?

The Petitioner established at the hear-

ing on the Motion to Suppress that the

search occurred without a warrant

(R.P. 6-7) and that the police did

not see the Petitioner violate any

law (R.P.48). The State conceeded that

-8=

it has the burden of proving the

search lawful. (R.P.7). The Petit-

ioner established prima facie that the

search was invalid. If the State sought

to invoke the routine inventory exemp-

tion to the requirement for a search

warrant, then it had the burden of ad-

vancing that exemption. In United States

vw. Jetters, 342 U.S. 48 at 51, the Court

said:

"Over and again this Court has

emphasized that the mandate of

the Amendment requires adherence

to judicial process. [citations

omitted]. Only where incident

to a valid arrest [citations om-

mitted] or in "exceptional circum-

stances", [citations omitted] may

an exemption lie and then the burden

is on those seeking the exemption to

=9e-

show the need for it, McDonald v.

United States, 335 U.S. 451 at 455-

456." 342 U.S. at 51. See also

Vale v. Louisiana, 399 U.S. 30 at

34.

From this allocation of the burden

of proof, it follows that if the pro-

ceeding in t.e lower courts failed to

preserve the argument that the search

was justified as an inventory search,

then it is the Respondent, not the Petit-

ioner, who is barred from relying on

that special exception to the warrant re-

quirement.

The Respondent reads the record too

narrowly. At every stage of the pro-

ceedings in the lower courts, the

-10-

Petitioner objected to the illegal

search and seizure on the grounds that

the search and seizure offended the

4th and 14th Amendment. The trial

court denied the Motion to Suppress

(R.P. 87-86), admitted the items seized

over objection (R.P. 371),denied the

Motion for new trial (report of sen-

tencing hearing 20-21), the Appellate

Court held that the search did not

offend Petitioner's 4th and 14th Amend-

ment Rights 401 N.E. 2d at 1269 Pe-

tition A-19 through A-22 and the

Illinois Supreme Court denied Leave to

Appeal.

The record clearly demonstrates

that the search was investigative

rather than an inventory search. Yet

the State in the trial court character-

ized the search as an “inventory

-ll-

(R.P.85). That contention should be

rejected because the evidence does not

Support that conclusion. In any event,

it was up to the State,not the Petit-

ioner, to prove the justification, since

the State failed to advance that jus-

tification in this Court that jus-

tification should be rejected.

For the reasons stated in the

Petition tor a Writ of Certiorari and

in this Reply, Petitioner asks the

Court to grant Certiorari and reverse

the Judgment of the Illinois Supreme

Court and Illinois Appellate Court.

Respectfully submitted,

William J. Stevens

Counsel for Petitioner

William J. Stevens

FOSS, SCHUMAN & DRAKE

11 South La Salle Street

Chicago, IL 60603

Telephone: (312) 782-2610