# Petitioners Reply Brief — Perry v. Illinois > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0869%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Reply Brief - **Published:** January 1, 1981 - **Citation:** 451 U.S. 983 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0869%3A3. Public record. Not legal advice.