Amicus Brief — Washington v. Chrisman

Office Supreme Court, U.S

FILED

SEP 4 198!

No. 8@- 1349 ALEXANDER L. STEVAS,

IN THE CLERK

Supreme Court of the United States

October Term 1980

THE STATE OF WASHINGTON,

Petitioner,

Vv.

NEIL CHRISMAN,

Respondent.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF WASHINGTON

BRIEF OF AMICUS CURIAE

AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON

Timothy K. Ford

2101 Smith Tower

Seattle, Washington 98104

(206) 624 2180

ABCD AT CRAFTSMAN PRESS, SEATTLE

QUESTION PRESENTED

This amicus believes that the only

question properly presented is whether

Respondent's joint tenant voluntarily

consented to return to his room with the

arresting officer after having been placed

under arrest.

TABLE OF CONTENTS

STATEMENT OF THE INTEREST OF

AMICUS CURIAE . * ° o ° * . ° . . . o

STATEMENT OF THE CASE ..+ ++ +e

I. THE SOLE ISSUE IN THIS CASE IS

WHETHER OVERDAHL VALIDLY CONSENTED

TO OPEN HIS ROOM TO OFFICER

DAUGHERTY'S ENTRY AND VIEW. .. .

II. THE PACTS AND PETITION HERE DO

NOT PROPERLY RAISE ANY QUESTION

OF "EXIGENT CIRCUMSTANCES" OR

"GOOD PAITH. ™ . ° . Sd . . . . . °

CONCLUS ION * . ° eo . s . * . . ° ° ° °

5

TABLE OF AUTHORITIES

Statutes and Court Rules Page

Supreme Court Rule 36.2 ...4++s++«e-s.

Supreme Court Rule 21.1(a), (h) ... -~

Washington Rule of Appellate Procedure

Tee 6 6 Ale fe yo. 6 6 ab 0 ep

Cases

Beck v. Ohio, 379 U.S. 89 (1964) . 2...

Bumper v. North Carolina,

U.S. 3 ) eo o * — eo e* — es .

Chimel v. California, 395 U.S. 752

( 9 . e s ° ° . ° ° o ° ° s 7 ° °

Giacalone v. Lucas, 445 F.2d 1238

(6th Cir. Bale ah eee, | 6. ee Ae

Schneckloth v. Bustamonte, 412 U.S. 218

(19 “ee ee? * # # #® # @# # # @

Shapoey v. California, 395 U.S. 818

State v. Chrisman, 94 Wn.2d 711,

P. 1 1980) ° 7 @ eo 7] so s o .

State v. Chrisman, 24 Wn.App. 385,

; P. (1980) «ee * « e ° *

State v. Hehman, 90 Wn.2d 45,

Pe (1979) oe * J * s . 7 — o

United States v. United States District

Court, U.S. ’ ta Sa

United States v. Watson, 423 U.S. 411

6) ° ° . o ° ° e@ e ° . ° . ° e so

Williams v. United States, 622 F.2d 830,

t f. » cert. denied,

Sr ee. OP OeMET 5 6 6 ete eee 9

Other Authorities

2 LaPAVE, SEARCH AND SEIZURE 421-2 (1978) 6

ajo

STATEMENT OF THE INTEREST OF AMICUS CURIAE

The American Civil Liberties Union of

Washington is a statewide, non-partisan

organization dedicated to defending the

liberties guaranteed by the Bill of Rights.

A principal concern of the ACLU-W has

always been the security of Washington

citizens against invasions of their homes,

"the chief evil against which the wording

of the Fourth Amendment is directed."

United States v. Wnited States District

Court, 407 U.S. 297, 313 (1972).

Out of this concern, the ACLU-W has

argued. major Fourth Amendment issues here

and in the lower courts, and has responded

to countless citizen complaints about

police actions similar to this one. Our

interest here is to answer the sweeping

Claims of state power made by Petitioner

and its supporting amici, and to focus the

narrow Fourth Amendment issue we believe

this case presents. The parties have

consented to our appearance. Rule 36.2.

@30

STATEMENT OF THE CASE

This case arose from a warrantless entry

and search of Respondent Neil Chrisman's

college dormitory room, which resulted from

the arrest of his roommate, James Overdahl,

for possession of alcohol. ! The facts

the Supreme Court of Washington held

controlling are relatively straight-

forward. . Those facts involve the _ two

critical incidents here: the arresting

officer's decision to go to Overdahl's and

Chrisman's room, and his actions once

there. The testimony on both these points

was clear and undisputed.

1 Respondent and Overdahl were jointly

charged, and jointly represented in the

courts below, until Overdahl's dismissal

while the case was pending in the state

supreme court. Up to that time, the focus

of the case was on the relation between the

statements Overdahl made at the time of his

arrest, without Miranda warnings, and the

search that followed them. See State v.

Chrisman, 24 Wn. App. 385, 388-9, 600 P.2d

80). Overdahl's removal from the

case after briefing was completed (see

Washington Rule of Appellate Procedure 13.7

(a)) may have resulted in some confusion in

the arguments below.

=3-

Officer Daughtery testified that, after

he arrested Overdahl (RP 5),

I then asked the subject for his

identification. He stated that he did

not have any. He then asked me to hold

the bottle while he returned to his dorm

room to obtain the proper identification.

I stated at that time it was not our

policy to subsequently let an individual

leave from an area at that particular

point without, it just was not the way

that we handled the situation....

I stated to him that he could not go

alone because we just don't release

people from custody....

I stated that he could not go back to his

room, and that we could both go up which

he stated to me okay. We then entered

back into Orton Hall ....

RP 5-6. A witness to this conversation,

Lisa Anthony, testified the officer's terms

were somewhat more forceful:

9. And, when Carl said it was up in his,

his identification was up in his room,

what did the officer say in response to

that?

A. He says where do you live, and Carl

told him 1141.

Q. And, then what did the officer say?

A. He said let's go to 1141.

RP 83.

-4-

Officer Daugherty testified that, as the

two were approaching the room,

I observed the door to be open

approximately 3 to 4 inches. As we got

to the room Mr. Overdahl pushed the door

open and entered the room. I stood in

the doorway without entering, actually

physically entering the room.

RP 7. From that vantage point the Officer

observed a marijuana pipe and seeds. 2

That observation led the Officer to go

farther into the the room, where he placed

Respondent under arrest and obtained

consent for the more thorough search of the

room in which he found the drugs Resvondent

was convicted of possessing. RP 21-28.

We believe these facts, and these facts

alone, control this case. The only issue

2 RP 18. The confusion as to whether the

Officer was inside or outside the room

apparent in Petitioner's Brief (at 5-7) is,

as the court below said, a confusion over

legal “niceties”. State v. Chrisman, 94

Wn.2d 711, 716, 619 P.2d 971 (1980).There

was no confusion in the officer's

testimony:

Q. Okay. Were you in the hallway or were

you in the doorway?

A. I was standing against the doorjamb.

RP 9.

-S-

presented by the petition here is, as the

state supreme court framed it, “whether

{the officer] had a right to be" “in the

room when he observed the seeds and pipe."

State v. Chrisman, supra, 94 Wn.2d at 716.

If he did, the search was proper. If he

did not, the lower court held the

illegality of that observation “tainted”

all his subsequent actions (94 Wn.2d at 717

-18)--and that holding has _ not_ been

challenged in this petition. In either

case, there is no reason to reach the

sweeping and novel Fourth Amendment issues

Petitioner and its supporting amici seek to

raise here.

I. THE SOLE ISSUE IN THIS CASE IS WHETHER

OVERDAHL VALIDLY CONSENTED TO OPEN HIS ROOM

TO OFFICER DAUGHERTY'S ENTRY AND VIEW.

Officer Daugherty's “right to be" where

he was when he saw the marijuana pipe and

seeds from the doorjamb of the room depends

we submit, wholly on the legal significance

of the conversation with Overdahl which

brought him there.

-6-

Clearly, Overdahl's arrest alone gave

the Officer no power to direct Overdahl to

the room he shared with Respondent or to

enter or examine that room, Chimel v.

California, 395 U.S. 752 (1969); Shipley v.

California, 395 U.S. 818 (1969). If the

Officer had that power, he could obtain it

only through Overdahl's consent. 3 See

Giacalone v. Lucas, 445 F.2d 1238, 1247,

1256-8 (6th Cir. 1971); 2 LaFAVE, SEARCH

AND SEIZURE 421-2 (1978). If that consent

was obtained through "“colorable lawful

coercion," it was invalid, Bumper v. North

Carolina, 391 U.S. 543, 549-50 (1968), and

can justify neither the opening of the dorm

room door nor the entry into it. See

Johnson v. United States, 333 U.S.10 (1948).

3 rf the officer's power to enter the

room derived from the arrest alone, the

issue here would be controlled by

Washington law, which more strictly limits

the powers of an officer making an arrest

for a petty offense than does the federal

constitution. See State v. Hehman, 90

Wn.2d 45, 578 P.2d 527 (1979).

-Jo

If Overdahl had consented voluntarily to

have the Officer go to the room with him,

the authority he so conferred would not

have ended at the doorjamb where the

Officer first stopped.

Although the Washington Supreme Court's

decision was not clearly based on this

rationale, its reading of the record

establishes the absence of voluntary

consent. Overdahl went to his room only in

response to the Officer's demand for

identification, which Overdahl had by then

admitted would not prove that he was

lawfully in possession of the alcohol. RP

7. Overdahl initially asked to go to his

room alone. RP 5. The Officer either

suggested (RP 5-6) or demanded (RP 83) to

go to the room with him. Overdahl was a

young man under arrest (RP 37), and was not

advised he had any right to refuse. The

totality of circumstances here did not

demonstrate voluntary consent. Compare

United States v. Watson, 423 U.S. 411

(1976); Schneckloth v. Bustamonte, 412 U.S.

218 (1973).

We submit that is all this Court need

decide in this case. Arrest simpliciter

cannot justify a c¢esidential search; but

valid third-party consent can. This case

begins and ends with the validity of

Overdahl's consent.

II. THE FACTS AND PETITION HERE DO NOT

PROPERLY RAISE ANY QUESTION OF “EXIGENT

CIRCUMSTANCES” OR “GOOD FAITH."

Petitioner and its supporting amici have

gone far beyond the facts and the petition

here in their requests that this Court

create “exigent circumstances” and "good

faith" exceptions to the Fourth Amendment

and the exclusionary rule. Neither of

these issues is necessarily or properly

raised by this case.

The "good faith" argument barely

mentioned by Petitioner (Pet. Br. 69), but

more strenuously urged by its amici, was

-9-

raised neither in the courts below nor the

Petition here. This Court has always said

the Fourth Amendment's protection cannot

turn on “subjective good faith alone." Beck

v. Ohio, 379 U.S. 89, 97 (1964). Though

that dictum has recently been questioned in

a context very different from that here,

Williams v. United States, 622 F.2d 830,

(Sth Cir. 1980), cert. denied, 101 S.Ct.

946 (1981), its continued validity is not

properly at issue in this case. Rule

21.1(a), (h).

Petitioner's "exigent circumstances"

argument (Pet.Br. 19-52) was made below and

is properly raised here, but need not be

reached. As we argued above, if Officer

Daugherty had the right to have the room

opened for his observation, he obtained the

right to enter it not from any “exigent

circumstances," but from the same

source--Overdahl's consent. If the room

was opened to him by invalid consent, the

-10-

“exigencies” that then arose--solely as a

result of his unnecessary demand _ for

incriminating information--cannot change

that fact or separately justify his later

actions.

CONCLUSION

The decision of the Supreme Court of

Washington should be affirmed.

Respectfully submitted,

Timothy K. Ford

ACLU of Washington

2101 Smith Tower

Seattle, WA 98104

(206) 624-2180

September 1, 1981