Petition — Athanasiou v. New Jersey

DEC

| Supreme Court, U.S.

FILED

26 1980

DAK, JR., CLERK

IN THE

Supreme Court of the United States

JANUARY TERM, 1981

BYRON PETER ATHANASIOU and

PETER JAMES ELLIOTT

Petitioners,

|

THE STATE OF NEW JERSEY

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPERIOR COURT OF THE

STATE OF NEW JERSEY, APPELLATE

DIVISION

MAURICE GRAHAM cf

BRIMMELL & GRAHAM P.A.

2161 E. Commercial Blvd.,

Ft. Lauderdale, Fla. 33308

Telephone: (305) 776-7500

. ¥

—

1.

QUESTIONS PRESENTED

‘VERE THE PETITIONERS DENIED THEIR

FUNDAMENTAL RIGHTS UNDER THE FOURTE

AMENDMENT TO BE SBCURE AGAINST

UNREASONABLE SEARCHES AND SEIZURES

WHEN THEY WERE STOPPED IN THEIR

MOTOR VEHICLE BY A LAW ENFORCEMENT

AGENT FOR A RANDOM VEHICLE CHECK

WITHOUT PROBABLE CAUSE THAT ANY LAW

WHATSOEVER WAS BEING VIOLATED.

SHOULD THIS COURT'S HOLDING IN DELAWARE

V. PROUSE, 440 U.S. 648 (1979) BE TPEATED

AS ANNOUNCING A NEW VARIANT TO THE

EXCLUSIONARY RULE OR AS A CLARIFICATION OF

THE ALREADY EXISTING PARAMETERS OF THE

EXCLUSIONARY RULE AS ANNOUNCED BY THIS

COURT IN UNITED STATES V. “‘MAPTIND2--FUERTE,

428 U.S. 543 (1976); UNITED STATES V.

BRIGNONI-PONCE, 422 U.S. 873 (1975);

TERRY V. OHIO, 392 U.S. 1 (1968).

SHOULD DELAWARE V. PROUSE BE APPLIED

RETROACTIVELY TO CASES WHICH WERE PENDING

BEFORE THE TRIAL COURT WHEN SAID OPINION

WAS ANNOUNCED PRIOR TO ACTUAL TRIAL OF

PETITIONERS AND WHEN PETITIONERS RAISED

THE QUESTION OF THEIR FOURTH AMENDMENT

RIGHTS AND THE PROUSE DECISION AT THE

EARLIEST POSSIBLE OPPORTUNITY BY A

MOTION TO SUPPRESS THE EVIDENCE.

IN THE

SUPREME COURT OF THE UNITED STATES

JANUARY TERM, 1981

CASE No.:

BYRON PETER ATHANASIOU and

PETER JAMES ELLIOTT

Petitioners,

~~

THE STATE OF NEW JERSEY, .

Respondent.

PETITION FOR WRIT OF CERTIORARI

SUPERIOR COURT OF THE STATE OF

NEW JERSEY, APPELLATE DIVISION

Petitioners, Byron Peter Athanasiou and Peter James Elliott,

seek to have this Court issue its Write of Certiorari to the

Superior Court of New Jersey, Appellate Division, to review the

decision of that Court affirming the conviction of Petitioners

which occurred before the Superior Court of New Jersey —

Law Division.

(1)

TABLE OF CONTENTS

PAGE

OPINION BELOW 5

JURISDICTION 6

QUESTIONS PRESENTED 6

CONSTITUTIONAL PROVISIONS INVOLVED 4

STATEMENT OF CASE 4.5

REASON FOR GRANTING WRIT 7

1.

CONCLUSION

APPENDIX

3.

The Petitioners were merely motorists who

were not observed violating any law what-

soever but who were stopped nonetheless for

a random vehicle check by the officer in

question in violation of Petitioners’ Fourth

Amendment and Fourteenth Amendment

rights.

Whether the principles announced in Delaware

v Prouse by this Court were applicable to the

to the Petitioners’ case before the trial court

or the Superior Court of New Jersey, Appellate

Division.

12

Decision of the Superior Court of New Jersey

Appellate Division. A-1 to A-3

Decision of the Supreme Court of New Jersey

A+.

[2]

TABLE OF AUTHORITIES

PAGE

Cases:

Brinegar v United States 8

388 U.S. 106 (1949).

Delaware v Prouse 10

440 U.S. 648 (1979).

Terry v Ohio 8

392 U.S. 1 (1968).

United States v Brignoni-Ponce 8

422 U.S. 873 (1975).

United States v Diaz 11

515 F.2d 892 (5th Cir. 1975).

Cert. den., 423 U.S. 1052)

United States v DiRe 8

332 U.S. 581 (1948).

United States v Martinez-Fuerte 8

428 U.S. 543 (1976).

United States v Morison 9

546 F.2d 319 (9th Cir. 1976).

[3]

CONSTITUTIONAL PROVISIONS INVOLVED

AMENDMENT FOUR

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 warrant 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.

AMENDMENT FOURTEEN

All persons born or naturalized in the United States and

subject to the jurisdiction thereof, are citizens of the

United States and of 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

law.

STATEMENT OF THE CASE

A. HISTORY

The Petitioners were indicted on the 30th of May, 1979 in

Passaic County, Indictment No. 580-79 and they were charged

in two counts, the first count being possession of marijuana,

and the second count being possession of marijuana with the

intent to distribute marijuana. Subsequently, the Petitioners

entered a plea of not guilty and filed a Motion to Suppress the

physical evidence, the marijuana, which was taken from the

motor vehicle which Petitioners were occupying when they

were stopped for a random vehicle check. The trial court

denied Petitioners’ motion and an Order to this effect was

entered.

On January 14, 1980, Petitioners entered retraxit pleas of

guilty to Count Iwo in return for the dismissal of Count One;

Petitioners further expressly reserved the right to appeal the

[4]

trial Court’s denial of their Motion to Suppress. The trial court’s

denial of Petitioners’ Motion to Suppress was appealed to the

Superior Court of New Jersey, Appellate Division and said court

affirmed the trial court’s determination

B. FACTS.

Petitioners were travelling on the Garden State Parkway,

northbound in the City of Clifton, when they were stopped by

New Jersey State Police Trooper William Bergen for a random

vehicle check. Bergen stated that he did not stop the Petitioners

with the intent to issue any traffic citations. No evidence was

ever shown that would have indicated that the officer ever had

an articulable and reasonable suspicion that Petitioners were

unlicensed motorists or that the motor vehicle itself was either

improperly registered or in need of a valid vehicle inspection

sticker, or that he thought either of the Petitioners were subject

to arrest for violation of the law.

After the officer stopped Petitioners’ vehicle he instructed

Petitioners to open the trunk of their vehicle, where he dis-

covered the marijuana. At no time did either Petitioners give the

officer permission to search the vehicle nor did the officer ever

request said permission. The officer testified that during his

five years as a State Trooper he had stopped numerous cars tor

travelling 50 m.p.h. in a 55 m.p.h. zone (such as Petitioners)

and he has never obtained a search warrant in any case he has

been involved in.

Although Officer Bergen stated that he obstensibly stopped

Petitioners because their vehicles’s tires appeared to be low, he

further stated that he wanted their trunk opened because he

assumed that he might find marijuana in it.

OPINION BELOW

The decision of. the Superior Court of New Jersey, Appellate

Division, which affirmed the trial court’s denial of Petitioners’

Motion to Suppress was by virtue of a non-published opinien

[5]

which is contained in the Appendix to this Petition at A.1-3.

A timely Petition for Certification was filed in the Supreme

Court of the State of New Jersey and said petition was denied

on September 30th, 1980, published at N.J.,

A.2d (1980), a copy of which

is contained in the Appendix to this Petition at A.4.

JURISDICTION

The judgment of the Superior Court of New Jersey,

Appellate Division, was entered on the 1st day of July, 1980.

A timely Petition for Certification was filed before the Supreme

Court of the State of New Jersey, and, was denied on the 30th

day of September, 1980. The jurisdiction of this Court to

review the decision of the Superior Court of New Jersey,

Appellate Division is invoked pursuant to Title 28 U.S.C.

§ 1257(3). |

QUESTION PRESENTED

1. WERE THE PETITIONERS DENIED THEIR

FUNDAMENTAL RIGHTS UNDER THE

FOURTH AMENDMENT TO BE SECURE

AGAINST UNREASONABLE SEARCHES AND

SEIZURES WHEN THEY WERE STOPPED IN

THEIR MOTOR VEHICLE BY A_ LAW

ENFORCEMENT AGENT FOR A RANDOM

VEHICLE CHECK WITHOUT PROBABLE

CAUSE THAT ANY LAW WHATSOEVER WAS

BEING VIOLATED.

y SHOULD THIS COURT’S HOLDING _IN

DELAWARE V PROUSE, 440 U.S. 648 (1979)

BE TREATED AS ANNOUNCING A NEW

VARIANT TO THE EXCLUSIONARY RULE

OR AS A CLARIFICATION OF THE ALREADY

EXISTING PARAMETERS OF THE EXCLU-

[6]

SIONARY RULE AS ANNOUNCED BY THIS

COURT IN UNITED STATES V. MARTINEZ-

FUERTE, 428 U.S. 543 (1976); UNITED

STATES V. BRIGNONI-PONCE, 422 U.S. 873

(1975); TERRY V. OHIO, 392 U.S. 1 (1968).

3. SHOULD DELAWARE V. PROUSE BE APPLIED

RETROACTIVELY TO CASES WHICH WERE

PENDING BEFORE THE TRIAL COURT WHEN

SAID OPINION WAS ANNOUNCED PRIOR TO

ACTUAL TRIAL OF PETITIONERS AND

WHEN PETITIONERS RAISED THE QUES-

TION OF THEIR FOURTH AMENDMENT

RIGHTS AND THE PROUSE DECISION AT

THE EARLIEST POSSIBLE OPPORTUNITY BY

A MOTION TO SUPPRESS THE EVIDENCE.

The trial court denied Petitioners’ Motion to Suppress the

physical evidence and Petitioners changed their plea to guilty

on possession of marijuana with an expression reservation

reserving their right to appeal the trial court’s denial of their

Motion to Suppress. Appeal to the Superior Court of New

Jersey, Appellate Division and affirmance of the trial court’s

ruling followed.

REASONS FOR GRANTING THE WRIT

1. The Petitioners were merely motorists who were

not observed violating any law whatsoever but who

were stopped nonetheless for a random vehicle

check by the officer in question in violation of

Petitioners’ Fourth Amendment and Fourteenth

Amendment rights.

The trial court and the lower Appellate Court affirmatively

found that Petitioners did not have the right to raise their

Fourth Amendment challenge to the search of their vehicle

from which the contraband was seized. Petitioners’ Fourth

[7]

Amendment challenge was cast aside by the Superior Court of

New Jersey, Appellate Division, where it held that;

“The charges arose out of Trooper Bergen’s stop of

defendants’ motor vehicle on the Garden State Parkway

on February 24, 1979, prior to the decision in Delaware vy.

Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed 2d 660 (1979).

Since our Supreme Court has held that the Delaware v. Prouse

rule should be applied prospectively only, State v. Carpentien,

N.J. (Docket No. A-122-79, decided May

19, 1978), we need not consider the first issue raised by

defendant, namely, whether the stop in question was a

“random stop” prescribed by Delaware v. Prouse,” (A.2).

Simply stated, the State Appellate Court ruled that the

Petitioners had no right to enforce their Fourth Amendment

rights against unreasonable searches and seizures because the

incident in question occurred prior to this Court’s ruling in

Delaware v. Prouse.

This decision by the New Jersey Appellate Court, sought

to be reviewed, has failed to take into consideration all of the

additional case law presented to it and is in direct and patent

conflict with this Court’s decision in United States v. Martinez-

Fuerte, 428 U.S. 542 (1976); United States v. Brignoni-Ponce,

422 U.S. 873 (1975); Terry v. Ohio, 392 U.S. 1 (1968);

Brinegar v. United States, 388 U.S. 160 (1949); and, United

States v. DiRe, 332 U.S. 581 (1948). In the Brinegar case, this

Court stated that:

...the citizen who has given no good cause for believing he

is engaged in that sort of activity (transporting contraband)

is entitled to proceed on his way without interference. But one

who recently and repeatedly has given substantial ground for

believing that he is engaged in the forbidden transportation in

the area of his usual operations has no such immunity, if the

officer who intercepts him in that region knows that fact at

the time he makes the interception and the circumstances

under which it is made are not such as to indicate the suspect

is going about legitimate affairs.

[8]

This does not mean, as seems to be assumed, that every

traveler along the public highways may be stopped and

searched at the officers’ whim, caprice or mere suspicion.

(at page 1311).

The Petitioners were travelers from the State of Florida,

the officer had no good cause for believing they were trans-

porting contraband and the officer who stopped the Petitioners

had no way to know at the time he stopped the Petitioners that

they were not going about their legitimate affairs. The officer

herein stopped the Petitioners’ vehicle based only upon his

whim, caprice or mere suspicion. It is intolerable and unreason-

able to condone a law enforcement officer’s stopping of

automobiles on the mere chance of finding contraband and

subjecting persons who are lawfully using the highways to the

indignity of such a search in violation of the Fourth Amend-

ment. This action was hardly a “good faith” effort by a police

officer; rather it was an intentional abuse of power based on a

pretext in a knowing attempt to circumvent the petitioners

constitutional rights.

It has been held in the case of United States v. Morrison,

546 F.2d 319 (9th Cir. 1976), that:

When a law enforcement officer signals a motorist to stop

by use of a siren or red light, there has been a seizure which

must be justified under the Fourth Amendment. United States

v. Ward, 448 F.2d 162 (9th Cir. 1973) (In banc); Carpenter v.

Sigter, 419 F.2d 169 (8th Cir. 1969). The seizure occurs when

the officer first communicates the command to halt. The

command must be valid when given; ...United States v.

DiRe, 332 US. 581, 595, 68 S.Ct. 222, 92 L.Ed 210 (1948).

The Petitioners were driving a three year old vehicle and

were proceeding at fifty miles per hour in a fifty-five miles

per hour speed zone. This officer said the car was riding low

and that the tires appeared to be in need of further inflation.

These were the factors given by the Officer to justify his seizure

of the Petitioners, their vehicle and his subsequent search. The

[9]

officer had no basis at all upon which to have a reasonable

suspicion that illegal activity was afoot; there was no idicia of

illegal activity present and thus the stopping of Petitioners

constituted an illegal, unconstitutional seizure under the Fourth

and Fourteenth Amendments to the Constitution of the United

States. United States v. Brignoni-Ponce, 442 U.S. 873 (1975).

The seizure and resultant search made by Officer Bergen

was violative of the Fourth and Fourteenth Amendments and

the decisions of this Court and the Circuit Courts. On this basis

and on the foregoing argument Petitioners maintain that review

of the Superior Court of New Jersey, Appellate Division’s

decision is mandated and a reversal is required.

2. Whether the principles announced in Delaware y.

Prouse by this Court was applicable to the

Petitioners’ case before the trial court or the

Superior Court of New Jersey. Appeallate Division.

This Court held in Delaware v. Prouse, 440 U.S. 648 (1979),

that a random stop of a motorist is per se unreasonable under

the Fourth and Fourteenth Amendments to the United States

Constitution. In that case the arresting officer stopped the

vehicle although he had not seen anything suspicious. The officer

walked toward the vehicle, smelled marijuana and found

marijuana on the floor of the vehicle as he was checking

documentation. In upholding the Delaware Court’s decision this

Court stated that:

Stopping an automobile and detaining its occu-

pants constitute a “seizure” within the meaning of

the Fourth and Fourteenth amendments, even

though the purpose of the stop is limited and the

resulting detention is quite brief.

This Court further held that unless there is a reasonable

suspicion of a violation of law, a police officer may not stop

and/or detain a motor vehicle and its occupants; that the motor-

ing public,

[10]

...may not. ..have their travel and privacy inter-

fered with at the unbridled discretion of police

officers.

In the instant case the arresting officer admitted responding

before the trial court that Appellants had not violated the law

at the time the vehicle was pulled over. He stopped the

Appellants and actively engaged in looking for possible violations

of the law; he was not merely attempting to verify the driver’s

license and the vehicle’s registration. This type of indiscriminate

probing into the motoring public’s right to travel in privacy

without fear of unreasonable, unwarranted and intolerable

searches and seizures cannot be tolerated regardless of the

outcome of any search initiated by the unbridled and groundless

discretion of police officers. The meager circumstances testified

to by the arresting officer are so uncertain and indifinite that

they fail to constitute lawful circumstantial evidence. Compare:

United States v. Diaz, 515 F.2d 892 (Sth Cir. 1975), cert den.,

423 U.S. 1052.

On this basis the Petitioners maintain that review of the

Superior Court of New Jersey, Appellate Division’s decision

is mandated and a reversal! is required.

[11]

CONCLUSION

WHEREFORE, in light of the foregoing circumstances and

authorities cited therein, the Petitioners respectfully request the

judgment of the Superior Court of New Jersey, Appellant

Division be reversed and this Court issue a Petition for Writ of

Certiorari.

Respectfully submitted,

«Wisk, ka

—~=*

Maurice Graham Esq.,

Brimmell & Graham P.A.,

2161 E. Commercial Blvd.

Ft. Lauderdale, Fla. 33308

Telephone: (305) 776-7500

Certity to: State < ot New Jersey AofAWe 4- Ag Ne we Ay,

ofox CN 2 Lae Mew Parse VESLZY

“Honorable Wie H. McCree, 7r., i. ra aah

Department of Justice, Washington, D.C. 20530. 44-5 Dec 26 /

py, W Armando, Se ee

[12]

APPENDIX

Decision of the Superior Court of

New Jersey, Appellate Division

A-1 to A-3.

Decision of the Supreme Court of

New Jersey.

A-4.

NOT FOR PUBLICATION WITHOUT THE APPROVAL

OF THE COMMITTEE ON OPINIONS

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

A-2227-79-A

STATE OF NEW JERSEY,

Plaintiff-Respondent,

Vv.

BYRON PETER ATHANASIOU and

PETER JAMES ELLIOTT,

Defendants-Appellants.

Submitted July 1, 1980--Decided JUL 44 980

Before Judges Botter and Morgar.

On appeal from Superior Court, Law Division,

Passaic County.

Ste.u, Lavinthal & Ackerme”, attorneys for appellants

(Alan R. Ack~rman, of counsel und on the brief).

John J. Degnan, Attorney General, attorney for respondent

(Lorane L. Posner, Deputy Attorney General, of counsel and

on the brief).

PER CURIAM

The sole issue on this appeal is whether Trooper Bergen

made a valid warrantless search of the truik of defendant's vehicle

in which 360 pounds of marijuana were found. Defendants’ motion to.

suppress the evidence was denied, and defendants entered guilty

pleas to the second count of the indictment which charged possession

“ith intent to distribute a controlled dangerous substance contrary

to N.J.S.A. 24:21-19(a) (1). Each defendant was sentenced to State

Prison for a term of two to threc years and each was fined $10,000.

This appeal followed.

The charges arose out of Trooper Bergen's stop of defendants’

moter vehicle on the Garden State Parkway on February 24, 1979,

prior to the decision in Delaware v. Prouse, 440 U.S. 648, 99 S.Ct.

1391, 59 L.Ed. 24 660 (1979). Since our Supreme Court has held that

the De'aware v. Prouse rule should be applied prospectively only,

State v. Carpentieri, _—s_—«wN.J._ ss (Docket No. A-122-79, deci*ed

May 19, 1989, we need not consider the first issue raised by

defendant, namely, whether the stop in question was a “random stop”

proscribed by Delaware v. Prouce.

On the evidence presentcd the trial judge found that the

search of the trunk was based on probable cause obtained when the

police officer detected a strong odor of marijuana emanating from

the passenger compartment of the vehicle and also observed various

m :ijuana seeds on the floor of the vehicle. The ‘zial judge also

found as a fact that ine driver consented to the search of the trunk

afte: being advised that he did not have to give his consent.

On the evidence presented, the tria. judge could properly make these

findings, and we must accept them a~ having support by credible

evidence. State v. Johnson, 42 N.J. 146, 162 (1964).

The search of the trunk having been made with the consent

of the vehicle's driver in keeping with the requirements of State v.

Johnson, 68 N.J. 349, 353-354 (1975), the trial judge properly

denied the motion to suppress evidence. Although this conclusion

makes it unnecessary to decide the issu. concerning probable cause

raised by defendants, it would appear that the trial judge's find-

ing of probable cause is not inconsistent with State v. Patino,

___ WJ. ____ Docket No. A-17-79, decided May 19, 1980) aff'g

163 N.J.Super. 116 (App.Div. 1978). See State v. Kahlon,

172 N.J.Super. 331, 338 (App.Div.1980).

Affirmed.

SUPREME COURT OF NEW JERSEY

C-79 SEPTEMBER TERM 1980

STATE OF NEW JERSEY,

Plaintiff-Respondent, :

Vv. t

BRYON PETER ATHANASIOU & PETER ;

JAMES ELLIOTT, ON PETITION FOR CERTIF*CATION

Defendants-Petitioners.

To the Appellate Division, Supertor Court;

A petition for certification of the judgment in A-2227-75

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 30th day of September, 1980.

Pr med

OCT @ 1960

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