# Opposition — Florida v. Busch

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1981
- **Citation:** 452 U.S. 909

## Text

RECEIVED

CASE NO. 80-1627 : MAY 11 1981
“OFFICE OF THE CLERK
<a SUPREME COURT, U.S.

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

STATE OF FLORIDA,
Petitioner,

Vv.

VINCENT ANTHONY BUSCH,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE
FIRST DISTRICT COURT OF APPEAL OF FLORIDA

BRIEF IN OPPOSITION TO
PETITION FOR WRIT OF CERTIORARI

P,. DOUGLAS BRINKMEYER
ASSISTANT PUBLIC DEFENDER
SECOND JUDICIAL CIRCUIT
POST OFFICE BOX 671
TALLAHASSEE, FLORIDA 32302
(904) 488-2458

ATTORNEY FOR RESPONDENT

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW
REASONS WHY THE PETITION SHOULD NOT BE GRANTED

CONCLUSION

TABLE OF AUTHORITIES

CASES:

Abood v. Detroit Board of Education, 431 U.S. 209,
reh. den. 433 U.S. 915 (1977)

Almeida-Sanchez v. United States, 413 U.S. 266 (1973)

Banks v. California, 395 U.S. 708 (1969)

Bowen v. United States, 422 U.S. 916 (1975)

Busch v. State, 392 So.2d 272 (Fla. lst DCA 1980)

California v. Green, 399 U.S. 149 (1970)

Coolidge v. New Hampshire, 403 U.S. 443 (1971)

Gerstein v. Pugh, 420 U.S. 103 (1975)

Hankerson v. North Carolina, 432 U.S. 233 (1977)

Jones v. United States, 357 U.S. 493 (1958)

Linkletter v. Walker, 381 U.S. 618 (1965)

Mancusi v. DeForte, 392 U.S. 364 (1968)

North Dakota State Board of Pharmacy v. Snyder's Drug

Stores, Inc., 414 U.S. 156 (1973)

Payton v. New York, 445 U.S. 573 (1980)

State v. Perez, 277 So.2d 778 (Fla. 1973)

State v. Santamaria, 385 So.2d 1130 (Fla. lst DCA
1980), rev. den. 392 So.2d 1380 (Fla. 1980)

United States v. Peltier, 422 U.S. 531 (1975)

United States v. Santana, 427 U.S. 38 (1975)

United States v. Watson, 423 U.S. 411 (1976)

OTHER:
Fourth Amendment, United States Constitution

28 USC §1257(3)

snd

PAGE

2

passim

2

CASE NO. 80-1627
IN THE
SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

STATE OF FLORIDA,

Petitioner, $
Vv. :

VINCENT ANTHONY BUSCH, H

Respondent,

BRIEF IN OPPOSITION TO PETITION FOR CERTIORARI
TO THE FIRST DISTRICT COURT OF APPEAL OF FLORIDA

QUESTION PRESENTED FOR REVIEW (AS
RESTATED BY RESPONDENT) :

WHETHER THE FIRST DISTRICT COURT OF
APPEAL OF FLORIDA ERRED IN RETROACTIVE-
LY APPLYING THIS COURT'S DECISION IN
PAYTON V. NEW YORK, 445 U.S. 573, (1980)
TO THE INSTANT CASE WHERE THE INSTANT
CASE WAS NOT FINAL AT THE TIME OF THE
PAYTON DECISION.

REASONS WHY THE PETITION SHOULD NOT BE.
GRANTED:

Pespondent believes this Court should decline to grant
the State of Florida's petition for a writ of certiorari for
three reasons: (1) the state has failed to show proper juris-
diction before this Court; (2) the decision of the Florida

Court to apply Payton v. New York, 445 U.S. 573 (1980) retro-

actively to the instant case was sound because the instant

case was not yet final at the time of the Payton decision; and
(3) this Court's Payton decision was not such a departure from
established law under the Fourth Amendment to the United States
Constitution as to preclude retroactive application for public
policy reasons.

The certiorari jurisdiction of this Court is narrowly de-
fined by 28 USC §1257(3), and requires a final judgment. The
opinion of the First District Court of Appeal of Florida is
not a "final judgment" because that opinion remanded this

-j=

cause to the trial court for further evidentiary hearings in-
to two issues concerning respondent's arrest and subsequent
confession:

The key factor is that the officers were
admitted to the home by another person.

The record contains conflict and is un-
clear as to whether the admittance was
consensual. Therefore, we remand to the
trial court for further hearing on the
question of whether or not the admittance
of the officers was consensual. If the
admittance was consensual, appellant's
conviction will stand because the holding
in Payton would not apply, the arrest would
be deemed legal and the subsequent confes-
sion would be admissible, the court having
already found that it was freely and volun-
tarily given.

Busch v. State, 392 So.2d 272, 273 (Fla. lst DCA 1980).

The Florida First District Court of Appeal also remanded
to the trial court for an evidentiary hearing on the confession

issue:

The circumstances surrounding Busch's con-
fession are not so clearly set forth in

the record that we can make a determination
as to whether or not the confession was
given so freely and voluntarily as to purge
the primary taint of the unlawful arrest.
Therefore, contingent upon the trial court's
finding on the entry question, further pro-
ceedings should be had below to determine
whether or not the facts surrounding the
confession satisfy the Wong Sun[v. United
States, 371 U.S. 471 (19 requirements.

Id. at 274.

This Court sometimes will review a judgment of a state
appellate court which reverses a trial court and remands to
the trial court, but only where that remand is for a minis-

terial purpose. Abood v. Detroit Board of Education, 431 U.S.

209, reh. den. 433 U.S. 915 (1977); North Dakota State Board

of Pharmacy v. Snyder's Drug Stores, Inc., 414 U.S. 156 (1973).

The reasons for requiring a final decision of a state court
prior to Supreme Court review were stated in the latter case
as follows:

The finality requirement of 28 USC §1257
which limits our review of state court
judgments, serves several ends: (1) it
avoids peacemeal review by federal courts
of state court decisions; (2) it avoids
giving advisory opinions in cases where
there may be no real "case" or “controver-

~“ sy" in the sense of Art. III; (3) it limits
federal review of state court determinations

<~=

of federal constitutional issues to leave
at a minimum federal intrusion in state
affairs.

Id. 414 U.S. at 159. See also California v. Green, 399 U.S.

149, 169-70 (1970) in which this Court held, regarding a
guestion as to whether the admission into evidence of pre-
liminary hearing testimony violated a defendant's right to
cross-examine witnesses:

Its resolution depends much upon the

unique facts in this record, and we are

reluctant to proceed without the state

court's views of what the record actually

discloses relevant to this particular

issue.

Nor has petitioner demonstrated that it had no further

relief available in the Florida Supreme Court. The juris-
diction of this Court cannot be invoked under 28 USC §1257(3)

where the petitioner has failed to seek review in the state's

highest court. Banks v. California, 395 U.S. 708 (1969). Cer-

tainly petitioner knows that discretionary review of the
First District's opinion may have been sought in the Florida
Supreme Court, as petitioner had sought such review on the

same point of law in State v. Santamaria, 385 So.2d 1130 (Fla.

lst DCA 1980), rev. den. 392 So.2d 1380 (Fla. 1980). If the
State of Florida wished to present the issue of the retroactivi-

ty of Payton v. New York, supra, to this Court it should have

Gone so in State v. Santamaria, which has been before the

Supreme Court of Florida. It should not seek a truly advisory
opinion from this Court on a case which is not yet ripe for
a decision, and which has not been reviewed by the highest
state court.

Certiorari should also be denied because the First Dis-
trict of Florida was entirely correct in granting relief to

Respondent in light of this Court's decision in Payton v. New

York, supra. A casual reading of the State of Florida's pe-
tition might lead one to believe that this Court has never
permitted a state court to give retroactive effect to its
Fourth Amendment decisions. That is simply not true. This
Court has differentiated between state court decisions which
were "final" at the time an alleged new rule of law is

-3-

announced, and those which were not "final", applying the
alleged new rule of law retroactively in the latter but not

in the former. Linkletter v. Walker, 381 U.S. 618 (1965);

Mancusi v. DeForte, 392 U.S. 364 (1968). The definition of

"final" has been stated as follows:

By final we mean where the judgment of
“conviction was rendered, the availability
of appeal exhausted, and the time for a
petition for a certiorari had elasped be-
fore our decision in Mapp v. Ohio, [367 U.S.
643 (1961) ]

Linkletter v. Walker, 381 U.S. at 622, note five. Respondent

was pending before this Court in Case No. 78-5403 at the time

Payton v. New York, was decided. To deny retroactive effect

to a case which is pending in this Court at the same time
another case is favorably decided would be to decide issues
of constitutional law as applied to a particular party on the
basis of a lottery.

Petitioner makes much of the fact that the First District
Court of Appeal of Florida may have assumed that this Court's
order of April 21, 1980 in Case No. 78-5403 required retro-

active application of Payton v. New York. Whatever truth

there may be to this interpretation is of no importance, be-
cause the foregoing argument and the following argument both
support the First District's proper retroactive application of
Payton, and therefore the denial of certiorari. Hankerson v.

North Carolina, 432 U.S. 233, 240 (1977) (note six).

Certiorari should also be denied because this Court in

Payton v. New York announced no new rule of law, contrary to

petitioner's assertions. If the purpose of the exclusionary

rule of the Fourth Amendment is not to penalize the police

for a good faith reliance upon prior decisions of this Court,

such a rationale is not applicable here because this Court

had never addressed the issue of routine warrantless arrests in
the home absent exigent circumstances. To the contrary, this
Court had expressed considerable skepticism regarding such arrests

in its recent prior decisions. See, e.g., Jones v. United

States, 357 U.S. 493, 499 (1958); Coolidge v. New Hampshire,

403 U.S. 443, 480 (1971 (Stewart, J.); Gerstein v. Pugh, 420

alte

U.S. 103, 113 (1975) (note thirteen); United States v. Watson,

423 U.S. 411, 418 (1976) (note six); United States v. Santana,

427 U.S. 38, 42 (1976) (majority opinion). Furthermore, as
this Court noted in parts III B and C of its Payton opinion,
the trend among the states in recent years was to hold war-
rantless arrests in the home unconstitutional, with only

Florida and New York resisting. Payton v. New York 445 U.S.

at 575.
Thus, petitioner may take no solace in the fact that the

Florida Supreme Court in State v. Perez, 277 So.2d 778 (Fla.

1973) misconstrued the clear harbinger of this Court's prior
decisions, disregarded the nation-wide trend of authority,
and ignored the obvious meaning of the Fourth Amendment it-
self. After all, if law enforcement's reliance is upon a
state court decision which interprets the federal constitution,
such reliance is misplaced, as this Court is the final arbi-
ter of federal constitutional law.

Petitioner seeks to equate the state law enforecement
officials in the instant case with the federal border patrol

in Bowen v. United States, 422 U.S. 916 (1975) and United

States v. Peltier, 422 U.S. 531 (1975). But the key difference

is that in those cases this Court denied retroactive application

of Almeida-Sanchez v. United States, 413 U.S. 266 (1973) as

a matter of public policy because the federal border patrol
agents were acting in reliance upon federal statutes and
federal lower court decisions. Here the police were ignoring
the clear importance of this Court's decisions on the Fourth
endment and relying solely upon the unfortunate opinion of

the Florida Supreme Court in State v. Perez, supra. Thus, the

granting of retroactive effect to Payton v. New York, in the

instant case by a Florida court is not contrary to public poli-
cy where the state formerly chose to "disregard the overriding
respect of the sanctity of the home that has been embedded in
our traditions since the origins of the Republic." Payton v.
New York, 445 U.S. at 601. Therefore certiorari should be

denied.

CONCLUSION
Respondent submits that the decision of the First District
Court of Appeal of Florida is not yet ripe for review by this
Court. Respondent further submits that the lower court pro-

perly applied Payton v. New York to the instant case. There

is no need for this Court to exercise its discretionary juris-
diction.

Respectfully submitted,

"23 / y’
TP Z —y “ )
U aie A vi 4, Ce) e len Cetarty on

P. DOUGLAS BRINKMEYER V
Assistant Public Defender
Second Judicial Circuit

Post Office Box 671
Tallahassee, Florida 32302
(904) 488-2458

Attorney for Respondent

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing has been
hand delivered to the Honorable Jim Smith, Attorney General,
The Capitol, Tallahassee, Florida; and a copy mailed to Mr.
Vincent Anthony Busch, 454 East Sixth Street, Jacksonville,
Florida, 32206, this 7 day of May, 1981. All parties

required to be served have been served.

P., DOUGLAS BRINKMEYER "i

; REE! VE

MAY 1 + 1981

OFFICE OF THE CLERK
IN THE SUPREME COURT, U.S.

CASE NO. 80-1627

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

STATE OF FLORIDA,

Petitioner,

Ve :

VINCENT ANTHONY BUSCH,

Respondent. :

MOTION FOR LEAVE TO PROCEED
IN FORMA PAUPERIS

VINCENT ANTHONY BUSCH, respondent in the above-styled
cause, hereby moves this Court, by his undersigned counsel,
for leave to proceed in forma pauperis and in support
hereof shows as follows:

1. An affidavit signed by respondent has been filed,
with the brief in opposition to the petition, wherein re-
spondent sets forth the fact that he is indigent and unable
to pay or give security for the fees and costs attendant
to this proceeding. |

2. Respondent was adjudged insolvent for the purpose
of appeal in the District Court of Appeal of Florida and was
represented there by appointed counsel. Upon review of this
conviction respondent has appeared in this Court in forma
pauperis in No. 78-5403.

WHEREFORE, it is respectfully requested that respondent
be permitted to proceed in forma pauperis in this matter.

Respectfully submitted,
es sf] ‘ff
ls Vyrente

P. DOUGLAS BRINKMEYER
Assistant Public Defender —
Second Judicial Circuit
Post Office Box 671
Tallahassee, Florida 32302
(904) 488-2458

Counsel for Respondent

CERTIFIFCATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing Motion
for Leave to Proceed in Forma Pauperis as well as the
attached Affidavit in Support of Motion for Leave to Pro-
ceed in Forma Pauperis, have been hand delivered to Mr.
Ray Marky, Assistant Attorney General, The Capitol, Tallahas-
see, Florida, and copies have been mailed to the respondent,
Mr. Vincent Anthony Busch, 434 East 6th Street, Jacksonville,
Florida, 32206, this “/__ day of Macs ae

further certify that all parties necessary to be served have

been served.

{

Ai a 4

P. DOUGLAS BRINKMEYER /

RECEIVED
MAY 1 4 198}
IN THE OFFICE OF Tae
SUPREME COURT OF THE UNITED STATES SUPREME COURT, U.S.
OCTOBER TERM, 1980

NO. 80-1627

STATE OF FLORIDA,
Petitioner,

vs.

VINCENT ANTHONY BUSCH,

Respondent.

I, VINCENT ANTHONY BUSCH, being duly sworn, depose and
say, in support of my motion for leave to proceed without
being required to prepay costs or fees and to proceed in

forma pauperis:

1. I am the respondent in the above entitled case.

2. Because of my poverty I am unable to pay the costs
of said cause; I own no real or personal property; I am on
parole.

3. I am unable to give security for said cause.

4. I believe that I am entitled to respond to the State

of Florida's petition.

U) unciad Lathoes Roush

VINCENT ANTHONY BUSCH\

STATE OF FLORIDA
COUNTY OF DUVAL
The foregoing affidavit of Vincent Anthony Busch was

ah aa
subscribed and sworn to before me this LF day of retry 1981.

NOTARY PUBLIC, STATE OF FLORIDA

MY COMMISSION EXPIRES; | :
Notary Public, State of Florida at ares
My commission expires Sept. 10, 1953
Bonded by Transamerica Insurance Coy

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1539%3A2. Public record. Not legal advice.