Opposition — Moran v. Virginia

Office-Supreme Court, U.S.

FILED

81-2 .

AUG 10 1961

ALEXANDER L. STEVAS,

CLERK

NO.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER 1980 TERM

GREY B. MORAN,

Petitioner,

Vv.

COMMONWEALTH OF VIRGINIA,

Respondent.

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF. CERTIORARI

TO THE SUPREME COURT OF VIRGINIA

Stacy F. Garrett, IIL

Deputy Commonwealth's Attorney}

for the City of Richmond

John Marshall Courts Building

800 East Marshall Street

Richmond, Virginia 23219

(804) 780-8045

TABLE OF CONTENTS

Table of Authorities

Question Presented for Review

Statement of Facts .

Ar gument * 7 * > * a

COMGIUSIOR::' 6 os: 6.

Certificate of Service

Page

TABLE OF AUTHORITIES

Pages

Arkansas v. Sanders,

442 U.S. 753 (1979) 0 O° 6) Qn?) 1.0 oe he 1l

Cady v. Dombrowski,

yy

3 U.S. 433 (1973) . 7 . + . + . - 12

Cardwell v. Lewis,

7 U.S. 583 (1974) 7 7 ° 7 - . + . 12

Carroll v. United States,

U.S. 132 (1925) . . - . . . * 9, 11

Chambers v. Maroney,

399 U.S. 42 T1570) ee eee ee OMe 10, 1l

Rakas v. Illinois,

Sue ems ae) UEe7O). 6 0 6 ee eee pe

United States v. Chadwick,

433 U.S. 1 (1977) - . ° . . 7 . .* 11

pe Tk

No.

IN THE SUPREME COURT OF THE UNITED STATES

October 1980 Term

GREY B. MORAN,

Petitioner,

Vv.

COMMONWEALTH OF VIRGINIA,

Respondent.

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF VIRGINIA

QUESTION PRESENTED FOR REVIEW

Was the warrantless seizure of marijuana

in the instant case done in violation of the

Fourth Amendment to the United States

Constitution?

STATEMENT OF FACTS

On October 18, 1979, within the City of

Richmond, Virginia, William H. Wyrick, a member

of the Richmond Bureau of Police (hereinafter

referred to as "Wyrick"), observed the defendant

stop his 1974 Datsun automobile in front of a

house located at 3006 Fifth Avenue; the time was

approximately 10:30 p.m. [At that time, the

defendant, a white male, was on supervised

probation pursuant to a felony conviction in

Henrico County, Virginia, for the Distribution

of 2115 grams (approximately 4.7 pounds) of

Marijuana. He received a suspended sentence. ]

The defendant entered the house, stayed a short

while, then exited in the company of a black

male. The two men entered the defendant's

automobile, whereupon the defendant made a

U-turn in the middle of the street, drove a

short distance, made a left turn anc then

parked the vehicle under a street light on the

right hand side of the street at the corner of

Burns and Dill Road (Tr. 62-64). Wyrick

followed them, and when the defendant parked

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his automobile, Wyrick assumed his observation

point diagonally across from the defendant's

vehicle (Tr. 64). Wyrick had become suspicious

of the defendant's activities due to Wyrick's

two and one-half years experience as a Vice

detective; his suspicions were aroused because

of the time of night coupled with a white male

entering the home of a black male. He thought

that the defendant was planning to purchase

drugs from the black man (Tr. 63-64).

The defendant exited his vehicle, went up

to a house situated on the corner, then shortly

returned to his automobile, which had its head-

lights on. The defendant stooped in front of

the left front fender, reached up under the

bumper and pulled out a plastic bag, which the

defendant proceeded to unroll; the bag appeared

to be a twelve-inch square bag (Tr. 65). From

his experience, Wyrick knew that marijuana was

often packaged in that type of plastic bag, so

he alerted another officer, Richard L. Acampora,

(hereinafter referred to as “Acampora") and

told him to head towards 3006 Fifth Avenue

o 3.6

and that Wyrick wanted to stop the vehicle (Tr.

65-66). The defendant had already stopped his

car and was in the process of parking it when

Wyrick and Acampora “swooped in" on them in

front of 3006 Fifth Avenue, where the defendant

had driven once he re-entered his vehicle (Tr.

43, 66). Wyrick exited his vehicle and went to

the passenger side of the vehicle where William

E. Brown (hereinafter referred to as "“Brown"),

the black male, removed a clear plastic bag

containing a greenish-brown plant material

from inside his jacket and placed it on the

floorboard of the automobile, beside his right

foot. Wyrick observed this from outside of the

defendant's vehicle; the side window was raised

(Tr. 66). The contents of the plastic bag

appeared to Wyrick to be marijuana (Tr. 67).

Wyrick then opened Brown's door, reached inside

and picked up the plastic bag which was by

Brown's foot, and then asked Brown to step out

of the vehivle. Wyrick then placed Bzown

under arrest for Possession of Marijuana (Tr.

Wyrick then went to the front of the

vehicle where he had earlier seen the defendant

remove the plastic bag from under the bumper

(Tr. 68); this was done to determine whether

any additional material was present of the type

that the defendant had removed earlier. Wyrick

shined his flashlight in the grille section of

the defendant's vehicle and saw a clear plastic

baggie containing a greenish plant material (Tr.

69). It took Wyrick a while to figure out how

to get the itmes out from underneath the bumper,

but he finally recovered two clear plastic

baggies, each containing greenish-brown plant

material; he also retrieved a brown paper bag

which contained two clear wiastsc baggies, each

containing greenish-brown plant material (Tr.

69-70, 88). Wyrick did not have to remove any

part of the vehicle to observe the above-

described items; all he had to do was shine his

flashlight on the grille (Tr. 70).

The defendant was then asked to step out

of his vehicle, at which time he was placed

under arrest for Possession of Marijuana with

a: 5s

Intent to Distribute. As the defendant exited

his vehicle, Acampora found yet another clear

plastic baggie with greenish-brown plant

material; this baggie was sticking out from

under the defendant's driver's seat (Tr. 71).

Wyrick then looked under the automobile to

ascertain whether any additional contraband was

similarly secreted. He observed five additional

plastic bags stuck inside the rear bumper in

little holes (Tr. 71); these itmes were also in

plain view when a flashlight was shone upon

them. They had to be forced out of the bumper,

however, as they were stuffed in there (Tr. 72).

At the suppression hearing, the defendant

testified that he was forty-four years old, was

married and the father of a twelve year old

daughter and is a life insurance agent (Tr. 18);

he further testified that he was a convicted

felon (Tr. 45) and that the felony conviction

related to a marijuana offense (Tr. 46). The

defendant also testified that he had some

marijuana in his vehicle on October 18, 1979

(Tr. 21); that there was no marijuana located

inside the automobile (tr. 24); that he had

picked Brown up at his house at 3006 Fifth

Avenue for the purpose of selling Brown some

marijuana (Tr. 38-39); that when es poli¢6

came up to his vehicle, Brown had already paid

the defendant for the marijuana (Tr. 40); that

the marijuana that was located in the front

‘bumper was placed there by the defendant (Tr.

24); and that the marijuana in the front and

rear bumpers belonged to him (Tr. 47).

A laboratory analysis of the seized items

revealed the presence of 884 grams of Marijuana,

just shy of two pounds (Tr. 143-145).

ARGUMENT

The defendant argues that since the police

seized his marijuana without a warrant, the

seizure violated the Fourth Amendment, and thus

was illegal. Such a contention is clearly

erroneous.

Being a good, alert police officer, Wyrick

became suspicious when he saw a white male go

into the home of a black male in a black

neighborhood late at night. So he began to

-7-=

keep a closer eye on the defendant's activities.

His two and one-half years experience as a Vice

Detective caused him to have even further

suspicions when he observed the ateusant drive

a short distance, park his vehicle, get out

leaving the black male inside the vehicle, go

up to a house for a short while, and then

return to the vehicle, stopping in front of it

to remove a plastic bag containing a plant

substance from under the front bumper, finally

getting back into the vehicle, carrying the

Plastic bag he had removed from the bumper. In

addition, Wyrick knew from his experience that

marijuana is often packaged in plastic bags of

the type which the defendant had.

At this point, Wyrick had probable cause to

believe that the defendant's automobile contained

marijuana. He also had probable cause to

believe that the defendant had removed a bag

containing marijuana from the front bumper of

the automobile.

Having the above-mentioned probable cause,

under the “Carroll Doctrine," Wyrick would have

had legal justification to search the vehicle

without a warrant and without knowing any

additional facts. Carroll v. United States, 267

U.S. 132 (1925). But Wyrick did ine that.

Instead, as the defendant was parking his auto-

mobile, Wyrick and Acampora approached the

vehicle. Wyrick went to the passenger's side

of the vehicle, as he had originally thought

that the defendant was the buyer. Upon

arriving there, he observed Brown, the passenger,

secrete a plastic bag containing marijuana on

the floorboard next to his foot. All during

this time, Wyrick was outside of the automobile.

Wyrick then arrested Brown for the Possession of

Marijuana.

At this juncture, after examining what he

retrieved from the floorboard next to Brown's

foot, Wyrick certainly had probable cause to

believe that there was marijuana in the vehicle.

His suspicions of minutes earlier were now

confirmed by what he had in his hands. He had

probable cause. As such, he could have held

the automobile and presented his known facts to

a magistrate or he could carry out an

immediate search of the vehicle without a

warrant. Given probable cause to search, either

course is reasonable under the Fourth Amendment.

Chambers v. Maroney, 399 U.S. 42, 51-52 (1970).

But Wyrick did not look inside of the

automobile; instead, he went to the location

on the vehicle where he had seen the defendant

remove the plastic bag of marijuana: the front

bumper. Once there, he did not do anything

more than shine his flashlight on the vehicle's

grille. That was all it took, for he was then

able to see additional bags of marijuana.

Although it took him a while to determine how to

extricate that which he had found, Wyrick was

able to seize the marijuana.

At this point, the defendant was asked to

get out of the vehicle, and was placed under

arrest for Possession of Marijuana with Intent

to Distribute. As he was exiting the vehicle,

even more marijuana was found, this time in

plain view, sticking out from under the seat

where he had been sitting. Then Wyrick went on

“= 10 -

to look at the rear bumper, where a simple look

revealed even more marijuana. |

At his trial, the defendant vouched the

record, after the trial court refused to allow

him to testify as to a legal conclusion, that he

had an expectation of privacy when he hid the

marijuana in the bumpers. But his voucher is

not legally sound. That is because courts have

traditionally treated automobiles differently

than other private property when such searches

have been questioned. The rationale is twofold:

first, the mobility of vehicles gives rise to

exigent circumstances that make the warrant

requirement impractical, Arkansas v. Sanders,

442 U.S. 753, 761 (1979); United States v.

Chadwick, 433 U.S. 1, 12 (1977); Chambers v.

Maroney, supra. at 49-50; Carroll v. United

States, supra. at 153, and second, the public

nature of vehicles and the history of vehicle

inspection and regulation reduce the occupants’

reasonable expectation of privacy. Arkansas v.

Sanders, supra.; Rakas v. Illinois, 439 U.S.

128, 154 n.2 (1978); United States v. Chadwick,

o-23

supra. at 12-13; see Cady v. Dombrowski, 413

U.S. 433 (1973), where this Court said that

",..'extensive and often non-

criminal contact’ with vehicles:

brings police into plain view of

evidence, fruits or instrumentalities

of crime, or contraband.” at 442.

But in this case, it is most important to

observe just where on the vehicle Wyrick looked

for the marijuana. He did not look inside the

vehicle, nor did he look in the glove compart-

ment, nor did he look in the trunk, nor did he

look in any container or package inside either

the interior of the vehicle or the trunk; he

looked at the bumpers of the vehicle, which can

only be gotten to from the exterior of the

vehicle. This Court's ruling in Cardwell v.

Lewis, 417 U.S. 583 (1974), strikes home. In

that case, police seized paint scrapings from

the exterior of the car and examined a tire on

one of the automobile's wheels. In upholding

those actions done without a warrant, this Court

stated that

a, ye

", . »« nothing from the interior

of the car and no personal effects,

which the Fourth Amendment traditionally

_has been deemed to protect, were

searched or seized and introduced

into evidence. . . Stated simply,

the invasion of privacy, if it can

be said to exist, is abstract and

theoretical. . . Under circumstances

such as these, where probable cause

exists, a warrantless examination

of the exterior of a car is not

unreasonable under the Fourth and

Fourteenth Amendments.” 417 U.S. at

591-92. (Emphasis added.)

And such is the case here. By placing his

marijuana in the bumpers of his vehicles, the

Commonwealth of Virginia fails to comprehend

what expectation of privacy was infringed. In

fact, there could have been no legal expectation

of privacy.

Wyrick acted prudently; he had probable

cause, yet only seized items he saw from outside

me

the vehicle and he never searched the inside

of the vehicle. As such, even though he did

not have a search warrant, Wyrick's actions did

not violate any of the defendant's Fourth or

Fourteenth Amendment rights.

CONCLUSION

Since there has been no violation of any

right guaranteed by the United States Constitu-

tion, the Petition for a Writ of Certiorari

should be denied.

Respectfully submitted,

COMMONWEALTH OF VIRGINIA

By:

ounse

Stacy F. Garrett, III

Deputy Commonwealth's Attorney

for the City of Richmond

John Marshall Courts Building

800 East Marshall Street

Richmond, Virginia 23219

(804) 780-8045

~,/34 =

CERTIFICATE OF SERVICE

I hereby certify that forty true copies

of the foregoing Brief in Opposition to Petition

for a Writ of Certiorari were mailed to the

Clerk's Office of the Supreme Court of the United

States, and that three true copies of the same

document were mailed, all postage prepaid, to

Michael M. Morchower, Esquire, 13 East Franklin

Street, Richmond, Virginia 23219, on this 6th

pep math

day of August, 1981.

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