Opposition — Gartner v. California

BOAT ATS ae ha —

aad os oye at

NO. 80-1032 MAR 27 1

IN THE ALEXANDER L. S

CLERK

SUPREME COURT OF THE UNITED STATES

October Term, 1980

FRANCIS DUANE GARTNER,

Petitioner,

vs.

THE PEOPLE OF THE STATE OF CALIFORNIA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF APPEAL OF THE

STATE OF CALIFORNIA, SECOND

APPELLATE DISTRICT

BRIEF OF RESPONDENT IN OPPOSITION

GEORGE DEUKMEJIAN, Attorney General

of the State of California

ROBERT H. PHILIBOSIAN, Chief

Assistant Attorney General

--Criminal Division

S. CLARK MOORE,

Assistant Attorney General

ROBERT F. KATZ,

SHUNJI ASARI,

MARK ALAN HART,

Deputy Attorneys General

358U Wilshire Boulevard

Los Angeles, California 90010

Telephone: (213) 736-2226

Attorneys for Responcent

—

Question Presented

May a law enforcement officer engage

in a warrantless inspection of a box of

documents revealed to him by a citizen-

informant known not to be the owner of

the documents, where the officer observes

no more than that already observed by

the citizen-informant?

TOPICAL INDEX

Page

Question Presented ...cccececeeccccceee Ll

Statement Of the CaS€ .ccccccccccccccee 2

I

A Law Enforcement Officer's Warrant-

less Observations of Documents

Revealed to him by a Citizen-Informant

Known not to be the Owner of the

Documents, is Proper Where the Officer

Observes no More Than That Already

Observed by the Citizen-Informant ..... 5

II

This Honorable Court Should not Grant

a Writ of Certiorari to Review a

Ruling on a Pretrial Motion Heard

Prior to the Entry of a Plea of Nolo

CORGGMEOES ceoccccecccsccecesocccesccess as

Conclusion eeeeoeeeeeeeneeeeeeeeeeeeeeeee 28

TABLE OF AUTHORITIES

Cases Page

Arkansas v. Sanders (1979)

442 U.S. 753 eeereeereeeeee ee eee 20-21

Boykin v. Alabama (1969)

395 a6. 238 eeee<e0ne4e*ene4e0ne0ne@eeeneeneteeee 22

Brady v. United States (1970)

397 a 742 eeeneeeeneeene_eeeeeneteeteneeee 22

Brotherhood of Carpenters v. United

States (1947) 330 U.S. 395 ....... 23

Burdeau v. McDowell (1921)

265 4 F 465 eeeenee7e4e#e4s8see*e#e7e*e7neeee#e7##e#e#e#e?#e 6

Chapman v. California (1967)

386 =e 18 eeeenvreeseeeeeneeeeeeeeeee 25

Coolidge v. New Hampshire (1971)

403 U.S. 443 eeeereevnsveeeeeneeeneeeneeeee 6-7

Corngold v. United States (9th Cir.

1966) 367 F.2d 1 eeeeieoeeeeenstrenstenseneee 20

Elkins v. United States (1960)

364 Sale 206 e*eeneee7u25xueoesee@ee#e7e#e4ne485xe#e#ee#ee#e#e#e 16

Harrington v. California (1969)

395 U.S. 250 eeeeeene7ene@e#*eee4neeeeneeeeeee 25

Marshall v. United States (9th Cir.

1965) 352 F.2d 1013 eee4e7ene@e8ne#8#e#e?#?e 19

McMann v. Richardson (1970)

397 U.S. 759 eeeereeeeeeeeees 22,23-24

Menna v. New York (1975)

423 U.S. 61 eeeeereeeeeeeeeee 24-25,26

ii.

North Carolina v. Alford (1970)

400 U.S. 25 sbeceeseeeseseceoecdeonsd 22

Santobello v. New York (1971)

404 U.S. 257 eee eoee*ee#e#e#7#ee#ee#ee#ee#ee#e##e#e@ 23

Stanley v. Georgia (1969)

394 U.S. 557 eeeeeenee7e3e7nensenstfeeeneeneeneee 9

United States v. Bulgier (7th Cir.

1980) 618 F.2d 472 secccccccceccee L?

United States v. Chadwick (1976)

433 U.S. l eeee<eeecs8seecs8sesees7#se4e7e83e7#e#*ee#e#e#e#e¢ 21

United States v. Foley (4th Cir.

1979) 598 F.2d 1323 eeeeeee4e8#8#e#ee#ee#ee#e 18

United States v. Frankfort Distilleries

Tear Bae Be MEO, Seevesdecsdsecne Oe

United States v. McDaniel (5th Cir.

1978) 574 F.2d 1224 eeeee5use7#27#2ee3#2#e?ee#8e#e¢ 17

United States v. Newton (7th Cir.

1975) 510 F.2d 1149 eeeeeeeeeen 19-20

United States v. Norris (1930)

281 U.S. 619 eeee4e585+eoee#e#e4s834e3ese7e8e3es8eee#e#ee#e#e#e 22

United States v. Pryba (D.C. Cir.

1974). 502 F.2G 391 cccccccccccccce LF

United States v. Ziperstein (7th Cir.

1979) 601 FP.2G 281 wccccccccecce 16,17

Walter v. United States (1980)

U.S. oe ee eee |

Statute

California Penal Code

Section 1538.5 eeeeoeeeee#ee#4s8s<eeeeeee#8e?es 26

iii.

Constitutions

United States Constitution

FOULCH AMOAGMONE cocccccssvedrsceos . teaveal

Fourteenth AMONGMENE .ccoscesecvescoese

iv.

-*

NO. 80-1032

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

FRANCIS DUANE GARTNER,

; Petitioner,

vs.

THE PEOPLE OF THE STATE OF CALIFORNIA,

Respondent.

BRIEF OF RESPONDENT IN OPPOSITION

Question Presented

May a law enforcement officer engage

in a warrantless inspection of a box of

documents revealed to him by a citizen-

informant known not to be the owner of

the documents, where the officer observes

no more than that already observed by

the citizen-informant?

xkekek

°- >

Statement of the Case

In an information filed by the

District Attorney of Los Angeles County,

California, petitioner was charged with

14 counts of grand theft, in violation

of California Penal Code section 487,

subdivision l, and with 9 counts of

forgery, in violation of California

Penal Code section 470. (C.T. pp. 980-

1004.) 7” Petitioner pleaded not guilty.

(C.T. p. 1005.)

Petitioner's motions to suppress

evidence, and to quash and traverse a

search warrant, were denied. (C.T.

2

Pp. 1194.)2/

1. "C.T." refers to the Clerk's

Transcript included as part of the

record on appeal in the state courts.

2. The constitutional provisions

and California statutes relevant’ to

petitioner's claim of error in denying

(cont. )

Thereafter, petitioner withdrew his

plea of not guilty and pleaded nolo

contendere to one count of grand theft

and one count of forgery. (C.T.

p. 1194.)

Petitioner's renewed motion to

suppress evidence, following his plea

of guilty, was denied. (C.T. p. 1195.)

Proceedings were suspended and

petitioner was granted probation for a

period a years with terms’ and

conditions including that he spend the

first 180 days in county jail. The

remaining . counts were dismissed on

motion of the People. (C.T. p. 1195.)

Petitioner was granted bail on appeal,

and the county jail condition was stayed

pending appeal. (C.T. pp. 1195-1196.)

these motions are set forth in Appendix

-D to the Petition for Writ of

Certiorari.

On August 4, 1980, in an _ opinion

certified for publication and a separate

memorandum not certified for publica-

tion, the judgment was abtivwea by the

California Court of Appeal, Second

Appellate District, Division Two. (2

Crim. 35858; Petn. for Writ of Cert.,

Appen. B.) On August 19, 1980,

petitioner's request for rehearing was

denied by the California Court of

Appeal. On September 2, 1980, the

California Court of Appeal ordered its

two opinions consolidated, and ordered

that they not be published. On October

22, 1980, the California Supreme Court

denied petitioner's request for hearing.

(Petn. for Writ of Cert., Appen. C.)

x ek

ARGUMENT ;

I

A Law Enforcement Officer's

Warrantless Observations of

Documents Revealed to him by

a Citizen-Informant Known not

to be the Owner of the Docu-

ments, is Proper Where the

Officer Observes no More Than

That Already Observed by the

Citizen-Informant.

Petitioner was the owner of a fire and

casualty insurance business which he

sold to Jack Robert Boyer. As part of

the transaction, Mr. Boyer took posses-

sion of all documents regarding policies

handled by the business, and a box of

documents belonging to petitioner

inadvertently left with Mr. Boyer.

Mr. Boyer opened the box, inspected the

documents inside, and voluntarily showed

them to a deputy sheriff of Los Angeles

County, California. The deputy inspected

the materials to the extent that they

had been previously inspected by Mr.

Boyer, and made copies of some of the

5.

**>

documents. From these observations,

the deputy compiled a list of 177

insurance policy-holders whose refunds

due them appeared to have been

appropriated by petitioner for his own

benefit, and discovered some cases

where petitioner used refunds’ to pay

for life insurance policies taken out

on the policy-holders where the

policy-holders' had never applied for

such life insurance. The deputy's

observations were included in an

affidavit in support of a warrant to

search petitioner's business premises.

It is well-settled that actions of a

private party in seizing evidence will

not be attributed to the government for

Fourth Amendment purposes when the

private party turns’ the evidence over

to the government. (Burdeau v. McDowell

(1921) 265 U.S. 465, 475; see also

Coolidge v. New Hampshire (1971) 403

6.

73

U.S. 443, 487-490.) In this Honorable

Court's most recent consideration of the

subject, eight Justices affirmed the

rule that where such evidence is made

available to the plain ‘view of law

enforcement agents by a private citizen,

it is not subject to suppression under

the Fourth Amendment. (See Walter v.

United States (1980) U.S. , , 100

S.Ct. 2395, 2398 - 2403; #£id., at

pp. 2403-2404, White, J., conc., and

pp. 2404-2406, Blackmun, J., dis.)

Petitioner contends that a search by the

government of a package previously

examined but then closed by a private

party is unlawful. He acknowledges that

this question was left unresolved in

Walter. (Petn. for Writ of Cert., p. 73

see also Walter v. United States, supra,

at p. 2402, fn. 9; and id., at p. 2404,

fn. 3, White, J., conc.) Respondent

submits first, that the evidence shown

7.

7&

to law enforcement in the instant case

was in plain view and falls within the

scope of what was acceptable in alter.

Furthermore, the government agent acted

properly in viewing no more than had

been previously viewed by the citizen-

informant.

In Walter v. United States, supra, 12

sealed packages containing 871 boxes of.

8 millimeter film depicting homosexual.

activities were shipped by private

carrier and mistakenly delivered to the

wrong party. Employees of that party

opened the packages, found suggestive

drawings and explicit descriptions of

the contents on individual film boxes,

and contacted the FBI. Federal agents

picked up the packages and, without

obtaining a warrant, viewed the films

with a projector. This led to indict-

ments on obscenity charges relating to

8.

interstate transportation of 5 of the

871 films. (Id., at pp. 2398-2400.) In

its lead opinion, this Court stated that

exhibition of the films was an

unreasonable invasion of the _ owner's

constitutional right of privacy. Citing

Sédtios Stewart's concurring opinion in

Stanley v. Georgia (1969) 394 U.S. 557,

569, the opinion noted that the film

could not be inspected as plain view

evidence since inspection required use

of a projector. The fact that federal

agents were lawfully in possession of

the film did not give them authority to

search the contents. An officer's

authority to possess a package was

held distinct from the authority to

examine the contents, and although there

was nothing wrongful about the agents’

acquisition of the packages or examina-

tion of their contents’ to the extent

that they had already been examined by

9.

third parties, the agents’ improperly

exceeded the scope of the private search

when they viewed the films on a

projector. (Id., at pp. 2400-2403.)

Contrary to petitioner's contention,

the instant record establishes not only

that the inspection of petitioner's

documents by a law enforcement agent was

no more extensive than the inspection

already made by the citizen-informant,

but also that the law enforcement agent

observed only that which was specifically

shown to him by the citizen-informant.

Thus, the instant search did not exceed

the plain view exception endorsed by

this Honorable Court for evidence

revealed to law enforcement by a private

party where government agents’ see no

more than what the private party had

exposed to their view.

The instant record establishes that

the citizen-informant showed the

10.

7%

sheriff's deputy ledger cards, books,

and other documents from the box that

had been left in the informant's

possession by petitioner. (C.T.

pp. 465-466.) In fact, the citizen-

informant conducted the inspection by

showing the contents of the box in

question to the deputy sheriff.

"Q. [by defense counsel] You were

also shown some records at that time,

weren't you?

A. [by deputy sheriff] Right.

Q. Where were you shown those

records?

A. It was in an office, just

adjacent to Mr. Boyer's office [the

citizen-informant].

Q. And what did the records look

like when you were shown them?

A. They were taken from a box, and

in the particular records that I was

really interested in, I believe, they

ll.

we 7 a

were in a Manila f»lder, and there was

maybe 100 to 20°) pieces of paper in

there with various clients, credit

memos and dailies from the insurance

companies.

Q. You were also shown -- did that

envelope come from a particular box?

A. There was a box. I believe it

was labeled 1974 records.

Q. And those records came from a

box that was in that envelope, didn't

they?

A. Right.

Q. Additionally, what else was on

that label?

A. I couldn't say, possibly Duane

Gartner & Company.

Q. Did it have any title on it,

like accounting records, or Duane

Gartner accounting records?

A. I can't recall.

"Now, that I think about it, I could

12.

not even say for certain it was a box.

It may have been a file drawer. I

believe it was a box, but it could

possibly be a file drawer full of

records.

"0. But the records that he showed

you that day all came out of the same

either box or file drawer?

A. Right, not a metal file drawer,

one of these cardboard storage bins.

Q. Like a aivtns company would

have?

A. Right.

Q. Do you remember the _ label,

1974, being on the box at least?

A. Right.

Q. Prior to being shown the

records from that box, you had a

conversation with Mr. Boyer, didn't

you?

A. Yes.

OF Rae: in that conversation he

13.

told you that he _ had inadvertently

come into possession of some records

during the sale of some business?

A. Right, that the box of records

had been there by mistake, left by the

moving people.

Q. He told you that the box of

records were Duane Gartner's, didn't

he?

A. Yes.

Q. He told you that by

inadvertently, that meant to you that

that box of records had been included

in by mistake in the records that had

been sent to Mr. Boyer?

A. Right.

Q. And at that time Mr. Boyer --

after this conversation, then you

proceeded to review the records in the

box?

© ie. Ree.

Q. And what did you do with them,

14.

sir, if anything?

A. What did I do with the records?

Q. Yes.

A. Well, I looked through then,

and Mr. Boyer gave me copies of maybe

100 of them.

Q. Did you make copies, or did he

make the copies?

"A, Well, I don't -- I am sure I

didn't. I don't know whether he did

or Camille may have.

Q. Did you pick out certain

records and ask him to make copies of

them?

A. I believe he made a copy of

most everything that was inthe

Manila folder." (C.T. pp. 502-504;

emphasis added.)

Respondent submits that the instant

inspection was not an unreasonable

search and seizure, in viclation of the

Fourth Amendment, made applicable to the

15.

es

>.

states by the Pourteenth Amendment.

"The [exclusionary] rule is calculated

to prevent, not to repair. Its purpose

is _to deter - to compel respect for the

constitutional guarantee in the only

effectively available way - by removing

the incentive to disregard it." (Elkins

v. United States (1960) 364 U.S. 206,

217.) The rule has_ no application to

evidence voluntarily placed in the plain

view of law enforcement officers by a

private citizen. For example, in United

States v. Ziperstein (7th Cir. 1979) 601

F.2d 281, pharmaceutical records were

turned over to the government by a

pharmacist employed by one of the

defendants. The Court held that even if

the employee had no authority over the

records and the defendant had a

reasonable expectation of privacy in the

records, the records should’ not be

Suppressed since the government was not

16.

> =

involved in any impropriety in gaining

the records. (Id.,: at Pp. 290.)

Similarly, in United States v. Bulgier

(7th Cir. 1980) 618 F.2d 472, a search

of luggage by airport personnel prior to

the government's involvement was held to

be a private search not protected by the

Fourth Amendment. Thereafter,

"[t]he reopening and reinspection of

the contents of a container by or in

the presence of government authorities

following a private search of the same

container does not constitute a

separate, independent search requiring

a warrant." (Id., at p. 478; see also

United States v. McDaniel (5th Cir.

1978) 574 F.2d 1224, 1225-1227, cert.

den. 441 U.S. 952 (1979); and,

United States Vv. Pryba (D.C. Cir.

1974) 502 F.2d 391, 398, cert. den.

419 U.S. 1127 (1975).)

The manner in which the private

ta

|

* |

citizen obtained the d°cuments does not

taint the government's acquisition of

them. For example, in United States v.

Foley (4th Cir. 1979) 598 F.2d 1323, a

letter that was the subject of a

protective order in a civil matter was

turned over to the government and used

in a criminal matter. The Court held

that “[t]Jhe government is not precluded

from introducing improperly obtained

evidence so long as it did not

participate in the impropriety." (Id.,

at p. 1337.)

It is submitted that a bailee has a

right not to be used es an unwilling

depository of incriminating evidence or

as an unwilling participant in the

concealment of such evidence. Upon

learning of the incriminating nature of

the documents left in his possession,

the citizen-informant's only reasonable

course of conduct was to make the

18.

materials available to law enforcement

agents. The government can hardly be

required to look the other way when such

evidence is presented for plain view

inspection. (See Marshall v., United

States (9th Cir. 1965) 352 F.2d 1013,

1014-1015 (defendant gave his landlady

an unlocked suitcase which she turned

over to the FBI contrary to defendant's

instructions) .)

Petitioner maintains that the instant

case presents an opportunity to resolve

a conflict in the circuits regarding the

extent of a warrantless government

search following a search by a private

party. (Petn. for Writ of Cert., pp. 7-

8.) On the contrary, the circuit courts

of appeal have generally upheld such

searches except when the private party

acted under color of government

authority. (See, e.g., United States v.

Newton (7th Cir. 1975) 510 F.2d 1149,

19,

’%

1153-1154; Corngold v. United States

(9th Cir. 1966) 367 F.2d 1, 4-5.) In

the case at bar, the citizen-informant

exanihed the records in question when he

purchased petitioner's business. (See

Petn. for Writ of Cert., Appen. B,

p. 4.) He did not act as a state agent

when he discovered the incriminating

documents.

A fair reading of the record made in

the state courts leads inexorably to the

conclusion that petitioner's records

were not effectively under the control

of law enforcement during the search.

Rather, the citizen-informant made

copies of the records available to the

government agent. (See C.T. pp. 502-

504, quoted supra.) Thus, petitioner's

reliance on cases dealing with

containers within the control of law

enforcement is misplaced. (Petn. for

Writ of Cert., p. 9; Arkansas v. Sanders

20.

(1979) 442 U.S. 753; United States v.

Chadwick (1976) 433 U.S. 1.)

Clearly, the instant matter fails to

present any important federal question

for resolution. The decision below is

consistent with Walter v. United States,

Supra, and no questions left undecided

in Walter are raised by the instant

facts.

II

This Honorable Court Should not

Grant a Writ of Certiorari to

Review a Ruling on a Pretrial

Motion Heard Prior to the Entry

of a Plea of Nolo Contendere

Petitioner is asking this Court to

render a decision on the admissibility

of evidence never actually admitted in a

state criminal trial. Following the

denial of petitioner's pretrial motion

to suppress evidence obtained pursuant

to the instant search and seizure,

petitioner elected not to go to trial

(where the evidence in question may or

21.

may not have been <dmitted on the issue

of guilt), and pleaded nolo contendere,

the functional equivalent of a guilty

plea for the purposes of criminal law.

It is well-settled that a plea of

guilty or nolo contendere is a waiver of

trial snd an admission of every element

of the .offense charged. (See Brady v.

United States (1970) 397 U.S. 742, 748;

McMann v. Richardson (1970) 397 U.S.

759, 766; Boykin v. Alabama (1969) 395

United States v. Frankfort Distilleries

(1945) 324 U.S. 293, 296; United States

v. Norris (1930) 281 U.S. 619, 622.)

Such a plea is proper if it represents a

voluntary and intelligent choice among

the alternatives open to the defendant.

(North Carolina v. Alford (1970) 400

U.S. 25, 31.) Federal constitutional

rights may be waived by such a plea (see

Boykin v. Alabama, supra, at p. 243),

22.

and a defendant who pleads guilty

pursuant to a plea bargain is entitled

only to what he bargained for.

(Santobello v. New York (1971) 404 U.S.

257, 262.) He may not, by right,

litigate all federal constitutional

_rights raised in pre-plea proceedings.

"Ordinarily a plea of nolo contendere

leaves open for review only the

sufficiency of an indictment."

(Brotherhood of Carpenters v. United

States (1947) 330 U.S. 395, 412.)

In McMann v. Richardson, supra, this

Court held that admissibility of an

allegedly coerced confession could not

be reviewed on habeas corpus following

defendant's plea of guilty. Unless

applicable state law provides otherwise,

the plea is a waiver of the right to

contest any evidence the _ state might

have offered against the defendant.

(McMann v. Richardson, supra, 397 U.S.

23.

7%

7.

at Pp. 766.) While a defendant who

pleads guilty does not waive all

antecedent constitutional violations, a

guilty plea does generally limit

appellate review to claimed constitu-

tional violations not inconsistent with

the factual admission of guilt which a

guilty plea involves.

"[A) counseled plea of guilty is an

admission of factual guilt so reliable

that, where voluntary and intelligent,

it quite validly removes the issue of

factual guilt from the case. In most

cases, factual guilt is a sufficient

basis for the State's imposition of

punishment. A guilty plea, therefore,

simply renders irrelevant those

constitutional violations not logically

inconsistent with the valid establish-

ment of factual guilt and which do not

stand in the way of conviction, if

factual guilt is validly established."

24.

(Menna v. New York (1975) 423 U.S. 61,

62-63, fn. 2.)

Petitioner herein unsuccessfully

sought to exclude evidence prior to his

plea of nolo contendere on the ground

that the evidence was the product of an

illegal search and seizure. Had he

proceeded to trial, suffered a convic-

tion and filed an appeal, a finding of

an unlawful search and seizure would not

per se result in a reversal. The rule

is settled that if the erroneously

admitted evidence was harmless beyond a

reasonable doubt, e.g., there was

overwhelming independent evidence of

guilt, petitioner's conviction would be

sustained. (See Harrington v. California

(1969) 395 U.S. 250, 251-254; Chapman v.

California (1967) 386 U.S. 18, 21-24.)

Respondent submits that petitioner's

voluntary and intelligent nolo

contendere plea following denial of his

25.

motion to suppress provided the requi-

site overwhelming evidence of guilt

which rendered irrelevant the constitu-

tional violations of which he complains.

In this regard the instant case differs

from Menna v. New York, supra, at page

67, footnote 2, where this Court held

that a guilty plea does not. bar

consideration of a double-jeopardy claim

since the issue is wiether the State may

convict the defendant no matter how

validly factual guilt is established.

(Menna v. New York, supra, 423 U.S. at

@. €3,. ta. 2.)

Respondent - acknowledges that

California has, by statute, provided for

appellate review of the denial of a

pretrial motion to suppress cvidence,

notwithstanding the fact that the

defendant pleaded guilty. (Cal. Pen.

Code, § 1538.5(m).) This statutory

right is not, however, constitutionally

26.

mandated. When a criminal defendant

admits, by way of a plea, every element

of the charged offense, this Court

should decline to review claims of

constitutional error which are rendered

moot by the plea.

Respondent submits that this Court

should therefore deny the requested writ

of certiorari to review the admissibility

of evidence litigated in petitioner's

pretrial motion to suppress evidence.

S 2:2

27.

CONCLUSION

For the foregoing -easons, respondent

urges that the Petition for Writ of

Ceriorari be denied.

Respectfull’ submitted,

GEORGE DEUKMEJIA.J, Attorney General

of the State of California

ROBERT H. PHILIBOSIAN,Chief

Assistait Attorney General

--Criminal Division

S. CLARK MOORE,

Assistant Attorney General

ROBERT F. KATZ,

SHUNJI ASARI,

MARK ALAN HART,

Deput,’ Attorneys General

and Attorney of Record

Attorneys for Respondent

28.