Opposition — Florida v. Brown

Oltice-Supreme Court, U.S.

FILED

a.

r CLE

ia the

of the

United States

OCTOBER TERM, 1980

STATE OF FLORIDA,

Petitioner,

vs.

CHARLES HUGH BROWN,

Respondent.

Brief in Opposition to Petition

For Writ of Certiorari to the

District Court of Appeal,

First District, State of Florida

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

SIMON, SCHINDLER & TRIPP, P.A.

1492 South Miami Avenue

Miami, Florida 33130

Tel: (305) 358-8611

Attorneys for Respondent

BY: Theodore L. Tripp, Jr.

eS

TABLE OF CONTENTS

Page

BED GE COMMONS bc icccsccvecccasctdecesicees i

Table of Authorities .......... 0... cece eee eens ii

MINI cic et ccc cnccdeavsicecvevcesre ves 1

Summary of Argument .................00005. 2

I sakkaaaewhaescoekessesees veces bane 3

The State District Court of Appeal correctly

applied the case of Payton vu. New York in its

consideration of this cause on remand from

the United States Supreme Court.

A. Payton v. New York does not fall within those

categories of cases which may be given

prospective application only ............... 3

B. Payton v. New York has already been applied

in other state and federal cases and has received

the attention of this Court on the very issue of

retrospective application .................. 7

C. A decision from this Court to allow consideration

of the issue of the retroactivity of Payton as it

applies to this case would effect a grave injustice

not in accord with prior case law in similar

A aaa ar ee ee 10

I, cer he cL ga uw wale alee 6 15

TABLE OF AUTHORITIES

Case Page

Almeida-Sanchez v. United States,

413 U.S. 266, 37 L.Ed.2d 596,

93 S.Ct. 2535 (1973)... 0... eee eee eee eee 11

Arkansas v. Haynes,

Case No. 80-691 (filed October 24, 1980) ...... 9

Beckwith v. United States,

425 U.S. 341, 48 L.Ed.2d 1, 96 S.Ct. 1612 (1976). 12

Chapman v. United States,

553 F.2d 886 (5th Cir. 1977)... 0... 0. 11

Chevron Oil Co. v. Huson,

404 US. 97, 30 L.Ed.2d 296, 92 S.Ct. 349 (1971) . 3

Haynes v. State,

602 S.W.2d 599 (Ark. 1980) .......... 6.000085 9

Jenkins v. Georgia,

418 U.S. 153, 41 L.Ed.2d 649,

OG A BERO UGE is vec ces cvcsccececseses 12

Johnson v. New Jersey,

384 U.S. 719, 16 L.Ed.2d 882,

Pe REM ED F sce ebesecrcekscereiss 12

Michigan v. Payne,

412 USS. 47, 36 L.Ed.2d 736,

98 S.Ct. 1966 (1978)... 1... eee eee ee ees 12

TABLE OF AUTHORITIES (Continued)

Case Page

Payton v. New York,

445 U.S. 573, 63 L.Ed.2d 639,

100 S.Ct. 1871 (1980) 0... eee ee eee Passim

Riddick v. New York,

445 U.S. 573, 63 L.Ed.2d 639,

100 S.Ct. 1871 (1980)... cee ee 9, 10

Robinson v. Neal,

409 U.S. 505, 35 L.Ed.2d 29, 93 S.Ct. 876 (1973). 12

United States v. Acevedo,

627 F.2d 68 (7th Cir. 1980)... 0... 6... eee 7,8

United States v. Fitzgerald,

545 F.2d 578 (7th Cir. 1976)... 0.6... cece 12-14

United States v. Peltier,

422 U.S. 531, 45 L.Ed.2d 374,

OB B.0s, SEAR GIGS 6 o.ccaes vase enna anees 11

United States v. Velasquez,

626 F.2d 314 (8rd Cir. 1980) .............005. 8

Valencia v. Anderson Bros. Ford,

617 F.2d 1278 (7th Cir. 1980) .............4.. 11

Wallace v. King,

626 F.2d 1157 (4th Cir. 1980) ......... 0.0005. 8

Wanger v. Bonner,

621 F.2d 675 (5th Cir. 1980) ........... 0.0008 8

iii

TABLE OF AUTHORITIES (Continued)

Case Page

Williams v. State,

401 U.S. 646, 29 L.Ed.2d 388,

91 S.Ct. 1148 (1971)... 0. ee ee ee eee 12

MISCELLANEOUS

Annot., Prospective or Retroactive Operation of

Overruling Decision, 10 ALR 3rd 1371......... 4

Stern & Gressman, Supreme Court Practice,

Sl errr rrr rerrrrrr rrr rrr. Tt 14

iv

INTRODUCTION

Respondent accepts Petitioner’s identification of

Questions Presented for Review and presentation of

the Statement of the Case.

SUMMARY OF ARGUMENT

The action taken by the District Court of Appeal

of Florida, Third District, in applying the case of Payton

v. New York, 445 U.S. 573, 63 L.Ed.2d 639, 100 S.Ct.

1371 (1980), on remand from the United States Supreme

Court was eminently correct. The issue raised by

Petitioner in its Petition for Writ of Certiorari is totally

inapplicable to the facts of this case in light of Payton.

The Payton decision is outside the ambit of those

categories of cases which may appropriately be given

prospective application only. While Payton undeniably

established a new principle of law, it neither overruled

past precedent nor decided an issue of first impression

whose resolution was not clearly foreshadowed. A review

of the decision itself satisfactorily supports this contention.

The law is clear that, in the absence of a Supreme

Court holding to the contrary, intervening decisions

shall be given retrospective application and not limited

to prospective application only. Payton has in fact already

been applied in several cases at both the state and

federal level. Indeed, this Court in December 1980

denied a petition for writ of certiorari on the precise

question of whether the Arkansas Supreme Court erred

in applying Payton to a case on direct review at the

time of Payton’s rendition.

Inasmuch as Payton was not applied retroactively

or, if applied retroactively, was appropriately applied,

this Court should deny the requested writ and allow

the cause to proceed in accordance with the ruling of

the district court.

ARGUMENT

THE STATE DISTRICT COURT OF APPEAL

CORRECTLY APPLIED THE CASE OF PAYTON

V. NEW YORK IN ITS CONSIDERATION OF THIS

CAUSE ON REMAND FROM THE UNITED

STATES SUPREME COURT.

A. Payton v New York does not fall within those categories

of cases which may be given prospective application

only.

Had Petitioner’s thoughtful and persuasive argument

been presented to this Court in a different case, the

argument and remedy sought might well have been

appropriate and successful. Based upon the procedural

facts herein, however, as well as existing case law,

Petitioner’s argument is without merit and provides no

basis for issuance of the requested writ.

The issue of retrospective application arises only

when the intervening decision by this Court establishes

a new principle of law “either by overruling clear past

precedent or by deciding an issue of first impression

whose resolution was not clearly foreshadowed.” Chevron

Oil Co. v Huson, 404 U.S. 97, 106, 92 S.Ct. 349, 355, 30

L.Ed.2d 296 (1971). The intervening decision which is

applicable in this cause, Payton v. New York, 445 U.S.

573, 63 L.Ed.2d 639, 100 S.Ct. 1371 (1980), was none of

these. As evidenced by the language of the decision

itself, it did not establish a new principle of law either

by overruling clear past precedent or by deciding an

issue of first impression whose resolution was not clearly

foreshadowed.’

Without question, Payton established a new principle

of law: the Fourth Amendment prohibits police from

making warrantless and nonconsensual entry into a

suspect’s home in order to make a routine felony arrest

in the absence of exigent circumstances. What remains

to be determined, before deciding whether Payton should

be prospectively applied only, is whether the decision

as announced by this Court overruled clear past precedent

or decided an issue of first impression whose resolution

was not clearly foreshadowed.

It is evident from a review of the case that Payton

did not overrule any past precedent, clear or otherwise.

As initially noted by Mr. Justice Stevens, writing for

the majority, there was no clear precedent governing

this issue:

The important constitutional question presented

by this challenge has been expressly left open

in a number of our prior opinions. In United

States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46

L.Ed.2d 598, we upheld a warrantless “midday

public arrest,” expressly noting that the case

did not pose “the still unsettled question. . .

whether and under what circumstances an officer

may enter a suspect’s home to make a

warrantless arrest.” 423 U.S., at 418, n. 6, 96

S.Ct., at 85, n. 6. [Footnote omitted.]

‘See generally Annot., Prospective or Retroactive Operation

of Overruling Decision, 10 ALR 3rd 1371.

100 S.Ct. at 1374 (emphasis added).

As to the second alternative requirement — whether

the case decided an issue of first impression whose

resolution was not clearly foreshadowed — it is indeed

apparent that Payton decided an issue of first impression.

The decision itself nevertheless makes clear that its

resolution was also “clearly foreshadowed.”

In his extensive historical analysis of Fourth

Amendment law, Justice Stevens stated that it was “a

‘basic principle of Fourth Amendment law’ that searches

and seizures inside a home without a warrant are

presumptively unreasonable.” 100 S.Ct. at 1380 (footnote

omitted; emphasis added). He further noted that, of the

seven United States Courts of Appeal that have

considered the issue of warrantless arrests in the home,

five have expressed the opinion that such arrests are

unconstitutional. Jd.

Further evidence of the fact that the decision in

Payton was clearly foreshadowed is given in the Court’s

analysis of states’ decisions on the issue:

But these current figures reflect a significant

decline during the last decade in the number

of States permitting warrantless entries ‘or

arrest. Recent dicta in this Court raising

questions about the practice, see n. 1 supra,

and Federal Courts of Appeals’ decisions on

point, see n. 4, supra, have led state courts to

focus on the issue. Virtually all of the state

courts that have had to confront the

constitutional issue directly have held

warrantless entries into the home to arrest to

be invalid in the absence of exigent

circumstances. See nn. 2, 3, supra. Three state

courts have relied on Fourth Amendment

grounds alone, while seven have squarely placed

their decisions on both federal and state

constitutional grounds. A number of other state

courts, though not having had to confront the

issue directly, have recognized the serious nature

of the constitutional question. Apparently, only

the Supreme Court of Florida and the New

York Court of Appeals in this case have expressly

upheld warrantless entries to arrest in the

face of constitutional challenge.

Id. at 1387 (footnotes omitted).

Justice Stevens throughout the opinion quoted

extensively from other justices and judges in support

of the rationale underlying Payton — that an entry to

arrest and an entry to search for and to seize property

implicate the same interest in preserving the privacy

and the sanctity of the home and justify the same level

of constitutional protection. He noted:

This reasoning has been followed in other

circuits. [Footnote omitted.] Thus, the Second

Circuit recently summarized its position:

“To be arrested in the home involves not

only the invasion attendant to all arrests

but also an invasion of the sanctity of the

home. This is simply too substantial an

invasion to allow without warrant, at least

in the absence of exigent circumstances,

even when it is accomplished under

6

statutory authority and when probable

cause is clearly present.” United States v.

Reed, 572 F.2d 412, 423 (CA2 1978), cert.

denied, 439 U.S. 913, 99 S.Ct. 283, 58 L.Ed.2d

259.

We find this reasoning to be persuasive and in

accord with this Court’s Fourth Amendment

decisions.

Id. at 1381 (emphasis added).

The rationale of Payton, therefore, is undeniably

apparent: the decision flows from previous decisions of

the Court itself, and merely established as the law of

the United States the very law which the majority of

state and federal courts have been following for several

years. As such, it is not an intervening decision which

established a new principle of law that either overruled

past precedent or decided an issue of first impression

whose resolution was not clearly foreshadowed. The

questions raised by Petitioner as to the alleged

retrospective application of Payton to the case sub

judice are accordingly inapposite to the court’s action

below.

B. Payton v. New York has already been applied in

other state and federal cases and has received the

attention of this Court on the very issue of retrospective

application.

Since this Court’s decision in Payton on April 15,

1980, several United States Courts of Appeal have

applied Payton in deciding cases pending before them.

7

In United States v. Acevedo, 627 F.2d 68 (7th Cir. 1980),

for example, the Seventh Circuit Court of Appeals

considered whether a defendant’s arrest, exected after

forcible entry into his home without a warrant, was

lawful in light of Payton:

On February 23, 1979, agents of the Drug

Enforcement Administration forcibly entered

Bernardino Acevedo’s apartment without a

warrant and therein arrested him. On April

15, 1980, the United States Supreme Court

held violative of the fourth amendment

warrantless nonconsensual entries to effect

in-home arrests in the absence of exigent

circumstances. Payton v. New York, 445 U.S.

573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980).

Consequently, the issue we face is whether

the agents entered Acevedo’s apartment under

circumstances that may _ properly be

characterized as exigent, that is, requiring

immediate action.

Id. at 68-69.

The Court found that exigent circumstances had in fact

existed, obviating the need for a warrant in light of

Payton, and thereby affirmed the conviction below.’

Furthermore, the question of the appropriateness

of retroactively applying Payton has already been

presented to the Court in another case in which the

*For other examples of application of Payton by federal appellate

courts, see United States v. Velasquez, 626 F.2d 314 (3rd Cir. 1980);

Wanger v. Bonner, 621 F.2d 675 (5th Cir. 1980). See also Wallace v.

King, 626 F.2d 1157 (4th Cir. 1980).

Court declined to address the issue. In Arkansas v.

Haynes, Case No. 80-691 (filed October 24, 1980), a case

factually similar to the instant one and to Payton and

Riddick v. New York, 445 U.S. 573, 63 L.Ed.2d 639, 100

S.Ct. 1371 (1980), the Arkansas Supreme Court supressed

certain evidence obtained during a warrantless, forcible,

and nonconsensual entry into a motel room on the

authority of Payton. The court specifically stated: “It is

obvious that this case [Payton] is controlling on the

matter before us at this time.” Haynes v. State, 602

S.W.2d 599, 602 (Ark. 1980). The State then filed a

petition for writ of certiorari in this Court, framing the

following questions:

(1) Did Arkansas Supreme Court erroneously

interpret and apply Payton vu. New York in

reversing defendant’s conviction because of

evidence seized pursuant to valid search warrant

but after officers made warrantless arrest of

defendant in his motel room?

(2) Did Arkansas Supreme Court err in

reversing his conviction in light of Rawlings v.

Kentucky, 48 LW 4885 (1980), which Arkansas

court did not consider?

49 U.S.L.W. 3432.

On December 16, 1980, this Court summarily denied

the Petition without opinion. 49 U.S.L.W. 3443.

While the Haynes case was before this Court for

less than two months, the instant case, in contrast, was

pending on Petition for Writ of Certiorari for almost

two years.’ To give no credence to the issue of

retrospective application of Payton in Haynes, while

allowing such consideration herein, would work an

extreme injustice on Mr. Brown and would be highly

inequitable.

Payton is being and has been unquestioningly applied

to cases which are already pending on direct review at

the time this Court rendered its decision in Payton. It

would therefore appear that this Court has impliedly

sanctioned such application and in fact does not deem

it retrospective, as posited in Part A supra.

C. A decision from this court to allow consideration of

the issue of the retroactivity of Payton as it applies

to this case would effect a grave injustice not in

accord with prior case law in similar circumstances.

At the time of this Court’s decision in Payton, this

cause was pending before the Court on a petition for

writ of certiorari on the precise question addressed

and answered in Payton.‘ With facts remarkably similar

to Payton, Brown v. Florida could well have been the

companion case to Payton instead of Riddick v. New

York, supra. The only notable difference is that the

facts in Payton and Riddick are more egregious: the

*Mr. Brown filed his Petition for Writ of Certiorari in this

Court on May 18, 1978. The Court’s Order granting the Petition

and remanding the cause for further consideration in light of

Payton was issued on April 21, 1980.

‘At the time the decision in Payton was announced, in fact,

the instant case had been pending before this Court for approximately

two years.

10

warrantless entry into Brown’s home occurred in the

middle of the night, as opposed to the daytime entries

in Payton and Riddick, and the felony thought to have

occurred involved possession of marijuana with intent

to sell, as opposed to murder and armed robbery,

respectively.

Mere prospectivity of decisions with respect to

constitutional rights should be the exception and not

the rule. Chapman v. United States, 553 F.2d 886 (5th

Cir. 1977); Valencia v. Anderson Bros. Ford, 617 F.2d

1278 (7th Cir. 1980). There could be no retroactive

application of Payton by the lower court in this cause

inasmuch as this case was in the identical procedural

posture as Payton and had raised before this Court the

identical issue of unconstitutionality of warrantless and

nonconsensual entries into a suspect’s home in the

absence of exigent circumstances. Had this case been

pending before an appellate court following trial of the

matter, then the issue of retroactive application of

Payton may appropriately have been raised.

In !’nited States v. Peltier, 422 U.S. 531, 45 L.Ed.2d

374, 95 5.Ct. 2313 (1975), for example, the case was on

appeal to the United States Court of Appeals for the

Ninth Circuit at the time this Court announced its

decision in Almeida-Sanchez v. United States, 413 U.S.

266, 37 L.Ed.2d 596, 93 S.Ct. 2535 (1973). Upon the

Government’s concession that the search and seizure

in Peltier were unconstitutional under the Almeida-

Sanchez decision, the Court of Appeals reversed Peltier’s

judgment of conviction. On certiorari to this court, it

was held that the Fourth Amendment exclusionary

rule did not require the Almeida-Sanchez decision to

11

be applied retroactively to cases involving searches

prior to the date of that deécision.°

The case of United States v. Fitzgerald, 545 F.2d

578 (7th Cir. 1976), is instructive on the issue of retroactive

application. In considering whether the decision of

Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612,

48 L.Ed.2d 1 (1976), should be applied in a case which

was on appeal at the time the Beckwith decision was

rendered, the Seventh Circuit Court of Appeals noted:

The petition for rehearing points out that the

Supreme Court has on a number of recent

occasions held that a newly announced

constitutional rule need not be applied in cases

where trials had already been commenced. The

petition urges that we therefore are not bound

by the rule of Schooner Peggy and should make

our determination as to the retroactivity of

Beckwith v. United States, 425 U.S. 341, 96

S.Ct. 1612, 48 L.Ed.2d 1 (1976).

This assertion is incorrect. When the Supreme

Court holds that a new rule of law should be

applied only prospectively, it is itself delineating

‘For other examples of cases on direct review at the time this

Court rendered a significant decision enunciating a new legal

standard or theory relevant to the case but held prospective in

application only, see Michigan v. Payne, 412 U.S. 47, 36 L.Ed.2d

736, 93 S.Ct. 1966 (1973); Williams v. State, 401 U.S. 646, 29 L.Ed.2d

388, 91 S.Ct. 1148 (1971); Jenkins v. Georgia, 418 U.S. 153, 41

L.Ed.2d 649, 94 S.Ct. 2750 (1974); Robinson v. Neal, 409 U.S. 505,

35 L.Ed.2d 29, 93 S.Ct. 876 (1973); Johnson v. New Jersey, 384 U.S.

719, 16 L.Ed.2d 882, 86 S.Ct. 1772 (1966).

12

the substantive scope of that rule. As a

conceptual matter, the Court is holding that

its new rule is not the law with respect to

cases that have already been initiated. In

contrast, when the Supreme Court announces

a new rule of law after a district court has

ruled but before a court of appeals has passed

on a case, the court of appeals can place no

such substantive limitation on the scope of the

new rule. If the Supreme Court fails to limit

the substantive scope of its new rule to purely

prospective cases, the court of appeals as an

inferior court must assume that the rule applies

in all situations. The policy factors that the

Supreme Court relies on in determining whether

its rules should have merely prospective effect

are irrelevant, though they would not be if the

court of appeals were determining whether to

give retrospective effect to a new rule which

it had itself announced.

Moreover, the Supreme Court has recently

affirmed the viability of the Schooner Peggy

doctrine. In Thorpe v. Durham Housing

Authority, 393 U.S. 268, 281-82, 89 S.Ct. 518,

526, 21 L.Ed.2d 474 (1969), the Court held that

an appellate court confronted with a change in

the law “must apply the law in effect at the

time it renders its decision,” whether the change

was constitutional, statutory, or judicial.

Furthermore, this principle governs whether

or not the new law is made specifically applicable

to pending cases. See Bradley v. Richmond

School Board, 416 U.S. 696, 711-16, 94 S.Ct.

2006, 40 L.Ed.2d 476 (1974).

13

Id. at 582 (emphasis added).

The clear understanding of practitioners before

this Court is that the entry of an order by this Court

which grants a writ of certiorari and remands the

cause to the lower appellate court for reconsideration

of the issues in light of an intervening Supreme Court

case means exactly that: the law of the intervening

case should be applied and considered when reanalyzing

the case itself. This is the basis for the view set forth

by Stern & Gressman, leading commentators on Supreme

Court practice:

The Court may grant a petition for certiorari

and at the same time summarily reverse the

judgment and remand the case for further

proceedings. Such summary action occurs when

the Court, or a majority thereof, is convinced

that the decision below is so clearly erroneous

as to make oral argument a waste of time.

Most commonly this results because the Court

believes the case to be clearly controlled by

one or more of its own recent decisions. . . .

[Footnote omitted.] And sometimes the Court

will summarily vacate and remand in order to

permit the lower court to reconsider its ruling

in the light of a new Supreme Court decision.

[Footnote omitted.|

Stern & Gressman, Supreme Court Practice, §5.12 at

362-63 (1978).

It follows, therefore, that the application of Payton

by the district court to the cause herein was in accord

with existing law on this issue and should be allowed to

stand.

14

CONCLUSION

The decision of Payton v. New York, supra, was

appropriately applied to the case sub judice by the

District Court of Appeal of Florida, First District. There

can be no rationale for attempting to apply Payton

prospectively only. It was clearly foreshadowed by other

decisions of state and federal cases, and is in accord

with Fourth Amendment law of this nation.

It follows, therefore, that the Petition for Writ of

Certiorari should be denied so that this cause may

proceed in light of the ruling of the district court.

Respectfully submittted,

SIMON, SCHINDLER & TRIPP,

P. A.

1492 South Miami Avenue

Miami, Florida 33130

(305) 358-8611

By:

THEODORE L. TRIPP, JR.

15