Record and brief — Michigan v. Thomas

voned

Office - Supreme court, U.S.

FILED

81-5983 SEP 24 1981

No. ALEXANDER L. STEVAS.

RK

Supreme Court of the United States

OCTOBER TERM, 1981

—_—_oe——_

PEOPLE OF THE STATE OF MICHIGAN,

Petitione:,

-vs-

LAMONT CHARLES THOMAS,

Respondent.

—_~e———_

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT

OF THE UNITED STATES

-_—oe——_

L. BROOKS PATTERSON

PROSECUTING ATTORNEY

OAKLAND COUNTY

ROBERT C. WILLIAMS

CHIEF APPELLATE COUNSEL

By: GEOFFREY H. NICKOL (P29493)

Assistant Prosecuting Attorney

1200 North Telegraph Road

Pontiac, Michigan 46053

(313) 858-0685

a rs

Interstate Brief & Record Co., Wurlitzer Bidg., 1509 Broadway, Detroit, MI 48226

(313) 962-8745

QUESTION PRESENTED

WHETHER THE POLICE CAN SEARCH AN AUTOMOBILE

WITHOUT FIRST OBTAINING A WARRANT ONCE PROBA-

BLE CAUSE DEVELOPS TO DO SO DURING THE CONDUCT

OF AN ON-THE-SCENE INVENTORY SEARCH?

iii

TABLE UF CONTENTS

Page

PIED cS phen ck decd cavwevecsteeses i

Citation to Opinions Below ................++++5: 1

EE coc en Gh od eped vec tessodebsvoaeeesas 2

Constitutional Provision Involved ................ 2

ER co ncabiniscctacéscccocogecies 3

Reasons for Granting the Writ ...............++-- 5

IE so Sunddince modded 00s) pagans 460 bunds 02 9

Appendix “A” — Order of the Supreme Court of the

Genbe OF NEkctig a 6.0 ccc ccc ccscccccssccccceses 10

Appendix ‘’B’ — Opinion of the Court of Appeals

of the State of Michigan ..................++45 11

TABLE OF AUTHORITIES

Constitutional Authorities:

United States Constitution, Amendment IV ..... 2

Cases:

Cady v Dombrowski, 413 US 433; 93 S Ct 2523; 37

Cl sch: ccccdaskedeeteecnuet 7

Chambers v Maroney, 399 US 42; 90 S Ct 1975, 26

5 fF fF fy. PePrrrerrerrrrrr ree 2,5,6,7,8

iv

Coolidge v New Hampshire, 403 US 443; 71 S Ct

2022; 21 L Ed 2d 564 (1971) ..........-..-005-

Texas v White, 423 US 67; 96 S Ct 304; 46 L Ed 2d

PEEOEE Sc Vea wEKSAns yeh vckusccdaccécusane

Statutory Authorities:

MCL 750.227; MSA 28.424 ........-.22eeeeeeees

BP Es MITE a 500 a Wide Kolin nde cvccciwesevsccses

Page

No.

IN THE

Supreme Court of the United States

—__e—_—_

OCTOBER TERM, 1981

—e——_

PEOPLE OF THE STATE OF MICHIGAN,

Petitioner,

-vs-

LAMONT CHARLES THOMAS,

Respondent.

—_ e——_

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT

OF THE UNITED STATES

—o——_

CITATIONS TO OPINIONS BELOW

The decision of the Michigan Supreme Court denying

leave to appeal was filed on July 28, 1981, and is reported

at — Mich —; — NW2d — (1981). Petitioner had

appealed from a decision of the Michigan Court of

Appeals, reported at — Mich App —; — NW2d — (1981).

Although the Court of Appeals did not originally inter.d

to publish the opinion, the Court decided to

2

do so in a letter dated June 2, 1981, stating that the

opinion would be significant to the jurisprudence of the

State. Copies of the Michigan Supreme Court order and

the Michigan Court of Appeals opinion are included in

the Appendix to this Petition.

JURISDICTICN

The order of the Michigan Supreme Court was filed on

July 28, 1981. The jurisdiction of this Court is invoked

under 28 USC 1257(3). The Court of Appeals’ decision is

based on the United States Supreme Court case,

Chambers v Maroney, 399 US 42; 90 S Ct 1975; 26 L Ed 2d

419 (1970).

CONSTITUTIONAL PROVISION INVOLVED

The constitutional provision which this petition

involves is:

Constitution of the United States, Amendment IV:

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 Warrants shall issue, but

upon probable cause, supported by Oath or

affirmation, amd particularly describing the place

to be searched, and the persons or things to be

seized.

STATEMENT OF FACTS

On May 15, 1979, Respondent Lamont Thomas was

convicted in an Oakland County Circuit Court bench

trial of carrying a concealed weapon, contrary to MCL

750.227; MSA 28.424. On August 17, 1979, Appellant was

sentenced to an imprisonment term of three (3) to five (5)

years.

On August 16, 1979, Respondent made a motion for a

new trial or a judgment notwithstanding the verdict,

claiming that the gun upon which the charge was based

was produced through an illegal search and seizure. The

motion was denied by the trial judge, who was unable to

conclude that the search and seizure was unreasonable.

Respondent appealed as of right to the Court of Appeals,

who reversed his conviction because of the illegal search

and seizure on February 9, 1981. On March 17, 1981, the

Court of Appeals denied Petitioner’s Application For

Rehearing. On July 28, 1981, the Michigan Supreme

Court denied Petitioner’s Application For Leave To

Appeal.

At trial, Sergeant Hawks testified that he and his

partner, Office Brown, stopped a vehicle on Lake Street

in Pontiac, Michigan, that had failed to make a signal for

a left-hand turn at the intersection of Orchard Lake Road

and Lake Street. (R, 25) Hawks noticed the passenger in

the right front seat, identified as Respondent, bend over

very low, with his head below the dashboard. (R, 26)

Upon approaching the vehicle with his weapon

unholstered, Hawks observed an open bottle of malt

liquor standing upright on the floorboard between

Respondent's feet. (R, 28) The bottle would have fit into

the space underneath the passenger seat. (R, 29)

4

Hawks placed Respondent under arrest for open

intoxicants in a motor vehicle. (R, 20) The driver of the

vehicle was issued a citation for failure to have a driver's

license. (R, 30)

When asked whose vehicle it was, Respondent stated,

“Me and my old lady’s.” (R, 30) Respondent and the

driver were taken to the patrol vehicle. (R, 30) Nobody

was present at the scene who could have driven the

vehicle back to Respondent’s house. (R, 31) Pursuant to

departmental policy, a wrecker was called to tow the

vehicle. (R, 31)

Prior to arrival of the wrecker, Officer Brown searched

the vehicle, pursuant to departmental policy that a

vehicle be searched prior to being towed. (R, 31) Brown

discovered two (2) bags of marijuana in the glove

compartment. (R, 31) Upon Brown’s return to the patrol

vehicle, Hawks asked her if she checked underneath the

dashboard of the vehicle. (R, 57) Brown replied that she

had not. (R, 57) Sergeant Hawks proceeded to search the

air vent underneath the dashboard on the passenger's

side of the vehicle and discovered a loaded .35 Smith and

Wesson revolver. (R, 31)

Officer Brown testified that, upon approaching the

vehicle, she observed the front passenger, identified as

Respondent, bent over forward in the seat, with the top

of his head level with the dashboard. (R, 66)

The driver of the vehicle was unable to produce a

driver's license. (R, 67) The driver stated that her age was

thirteen or fourteen. (R, 67)

REASONS FOR GRANTING THE WRIT

Petitioner argued before the Michigan Court of

Appeals that the search of the air vent by the police was

not improper, contending that the police could properly

search the vehicle at the scene since probable cause

developed once marijuana was discovered in the glove

compartment. Citing the United States Supreme Court

decision in Chambers v Maroney, 399 US 42; 90 S Ct 1975;

26 L Ed 2d 419 (1970), the Court of Appeals held the’ the

police could not search the automobile without a warrant

because there were no exigent circumstances which

would justify a search without a warrant. The Court

noted that the automobile was already being lawfully

taken into police custody and that there was no danger

that the automobile would flee and no longer be

available after obtaining a search warrant. The Court

stated that the police could apply for a search warrant

without any reasonable possibility that the car would be

taken out of the jurisdiction or the contraband removed.

The police had probable cause to believe that the area

underneath the dashboard of Respondent’s vehicle

contained marijuana or other contraband. During Officer

Brown’s inventory search, which was held by the Court

of Appeals to be reasonable, she discovered marijuana in

the glove compartment. This fact, coupled with Sergeant

Hawk's observation of Respondent bending over in the

front seat, gave Hawks probable cause to believe that the

area underneath the dashboard contained additional

marijuana or contraband. The Court of Appeals’ opinion

did not address the issue of probable cause. The Court

passed that threshold issue and addressed the question

whether exigent circumstances justified a warrantless

search.

_

6

The Court of Appez» wrongfully held that the police

cannot conduct a warrantless search of an automobile

once they determine there is a probable cause to do so

during the conduct of an on-the-scene inventory search.

Under the Court’s holding, once probable cause

developed that the automobile contained contraband, the

police had two alternatives. They could have held the car

at the scene until a warrant was secured or they could

have allowed the car to be towed away even though they

had reason to believe it contained contraband. Under the

Fourth Amendment, the police were not forced to choose

between the two undesirable options.

The Fourth Amendment did not require that the police

hold the car at *e scene until a warrant could be

procured. In Char vers v Maroney, supra, this Court held

that, for constitutional purposes, there is no difference

between, on the one hand, holding a car before

presenting the probable cause issue to the magistrate

and, on the other hand, carrying out an immediate

search without a warrant. As long as there is probable

cause to search either action is reasonable under the

Fourth Amendment. In Texas v White, 423 US 67; 96 S Ct

304; 46 L Ed 2d 209 (1975), this Court held that the police

properly searched the vehicle prior to obtaining a

warrant, even though there was no danger that the car

would flee or evidence would be lost. The car was

secured at the station house. The crucial fact was that

there was probable cause to search at the scene.

The Fourth Amendment did no‘ require that the police

allow an automobile they had probable cause to believe

contained contraband to be towed away prior to a

search. The automobile would have been vulnerable to

mishap during the time of its travel from the scene to the

impoundment lot. Such a circumstance provides a

7

sufficient justification to search at the scene. In Cady v

Dombrowski, 413 US 433; 93 S Ct 2523; 37 L Ed 2d 706

(1973), this Court pointed out that although the original

justification for treating automobiles differently from

houses for Fourth Amendment purposes was the mobile

nature of automobiles, searches of vehicles have been

sustained in cases where the possibilities of the vehicle

being removed or evidence in it destroyed were

remote, if nonexistent. Although the possibility of the

contraband in Respondent's vehicle being lost during the

towing period might have been minimal, the degree of

risk alone does not determine whether the warrantless

search on the scene was reasonable.

The Court of Appeals held that the police could not

make a warrantless search, because they had custody of

the car and, thus, there were no exigent circumstances.

As pointed out by this Court in Chambers v Maroney,

however, mere control of a vehicle does not neces-

sitate the procurement of warrant under the Fourth

Amendment. The instant case differs from Chambers v

Maroney, supra, only in that probable cause developed

after the initial police impoundment of the vehicle. This

factual difference is not of constitutional significance.

The police initially impounded the automobile because

neither occupant could drive it, and, if left on the road,

the vehicle would obstruct traffic and jeopardize

public safety. Presumably, had an acquaintance of

Respondent arrived at the scene, Respondent could have

authorized the acquaintance to take control over the car.

Once probable csuse developed that the vehicle

contained contraband, the police were no longer holding

the car to prevent it from obstructing traffic. At this

point, the police were entitied to exercise the same type

of control over the car that was exercised in Chambers v

Maroney, supra, and Texas v White, supra. In Chambers v

Maroney. supra, this Court held that the police did not

have to hold the car until a warrant could be obtained. A

warrantless search at the scene was constitutionally

permissible.

The instant case must be distinguished from cases

where there was an opportunity to procure a warrarit

prior to the stop and seizure of the vehicle. In Coolidge v

New Hampshire, 403 US 443; 71 S Ct 2022; 21 L Ed 2d

564 (1971), this Court held that a warrrantless search

and seizure of an automobile violated the Fourth

Amendment because the police had ample opportunity

to procure a warrant prior to the search and seizure. In

the instant case, the police did not have probable cause

to search the vehicle until after it was stopped. There

was no opportunity to procure a warrant before the stop

and seizure. Once probable cause developed at ihe

scene, however, the search was proper even though a

warrant had not been obtained.

In summary, the Michigan Court of Appeals

wrongfully held that the police could not conduct a

warrantless search of an automobile once probable cause

developed to do so after the police impounded the car to

keep it from obstructing traffic. Once probable cause to

search developed, the police could have held the

automobile until a warrant was obtained, regardless of

whether the car continued to pose a traffic hazard. Under

the Fourth Amendment, the police can conduct a

warrantless search of an automobile on the scene rather

than hold the car until a warrant is obtained. Because the

Court of Appeals has wrongfully decided this Federal

Constitutional issue, this Court should grant this

petition for a writ of certiorari and hold that the search

by the police was proper.

CONCLUSION

WHEREFORE, Petitioner respectfully requests ihat this

Honorable Court grant this petition for a writ of

certiorari to review the judgment of the Michigan Court

of Appeals.

Respectfully submitted,

L. BROOKS PATTERSON

PROSECUTING ATTORNEY

OAKLAND COUNTY

ROBERT C. WILLIAMS

CHIEF APPELLATE COUNSEL

By: GEOFFREY H. NICKOL (P29493)

ASSISTANT PROSECUTING ATTORNEY

Dated: September 15, 1981

~ yIpuaddy

10

APPENDIX “A”

ORDER OF THE SUPREME COURT

OF THE STATE OF MICHIGAN

(People of the State of Michigan, Plaintiff-Appellant, v

Lamont C. Thomas, Defendant-Appellee, SC: 67320;

COA; 47880; LC: 79-40128-FY)

At A Session Of The Supreme Court Of The State Of

Michigan, Held at the Supreme Court Room, in the City

of Lansing, on the 28th day of July in the year of our

Lord one thousand nine hundred and eighty one.

Present the Honorable Mary S. Coleman, Chief Justice,

Thomas Giles Kavanagh, G. Mennen Williams, Charles

L. Levin, John W. Fitzgerald, James L. Ryan, Blair

Moody, Jr., Associate Justices

On order of the Court, the delayed application for

leave to appeal is considered, and it is DENIED, because

the Court is not persuaded that the question presented

should be reviewed by this Court.

(certification omitted)

11

APPENDIX “B”

OPINION OF THE COURT OF APPEALS

OF THE STATE OF MICHIGAN

(People of the State of Michigan, Plaintiff-Appellee, vs

Lamont C. Thomas, Defendant-Appellant. No. 47880)

Before: T.M. Burns, P.J.; Beasley and G.R. Deneweth, JJ.

PER CURIAM

Defendant, Lamont C. Thomas, was convicted in a

bench trial of carrying a concealed weapon, contrary to

MCL 750.227; MSA 28.424, and was sentenced to not less

than three years nor more than five years in prison. He

made a motion for a new trial, claiming that the gun

upon which the charge was based was produced through

an illegal search and seizure. Upon denial of the motion,

defendant appeals as of right.

Defendant was the front-seat passenger in an

automobile that was stopped for failing to signal a left

turn. Upon approaching the stopped vehicle, Sergeant

Hawks and Officer Brown observed defendant bend

forward so that his head was at or below the level of the

dashboard. Sgt. Hawks found an open bottle of malt

liquor standing upright on the floor-board between

defendant's feet and placed him under arrest for open

intoxicants in a motor vehicle. The 14-year-old driver of

the car was issued a citation for having no valid

operator's license on her person.

Defendant and the driver were taken to the patrol

vehicle and, pursuant to departmental policy, a wrecker

12

was called to tow the vehicle. No one was present at the

scene who could have driven the vehicle back to

defendant’s house.

Prior to the arrival of the wrecker, Officer Brown

searched the vehicle. This was pursuant to departmental

policy that vehicles be searched prior to being towed.

Officer Brown discovered two bags of marijuana in the

unlocked glove compartment. Upon Brown’s return to

the patrol car, Sgt. Hawks asked her if she had checked

underneath the dashboard. Brown replied that she

had not.

Sgt. Hawks proceeded to make a second search of the

vehicle. He checked under the front seat and looked up

under the dashboard. He opened the two vent doors

under the dash and looked inside the air vents. He also

unlocked the trunk and checked inside it. Hawks

disco, -red a loaded, .38 revolver in the air vent on the

passenger's side of the vehicle. Neither officer made a

list of the items found in the vehicle.

Defendant claims that the inventory search of his

automobile was unreasonable in scope and was merely a

pretext for a prohibited search without a warrant.

Therefore, he claims the subsequent seizure of the gun

was unreasonable and a violation of his Fourth

Amendment rights.' Plaintiff argues that the seizure of

defendant’s automobile and the subsequent search of its

interior properly falls within the inventory search

exception to the warrant requirement of the Fourth

Amendment.

The validity of inventory searches of impounded

vehicles was upheld by the United States Supreme Court

' US Const, Am IV.

13

in South Dakota v Opperman.? In Opperman, the police

found a bag of marijuana in an unlocked glove

compartment during an inventory search of a car that

had been impounded for multiple traffic violations. The

court held that the conduct of the police was reasonable

under the Fourth Amendment, stating that whether a

search and seizure is unreasonable within the meaning

of the Fourth Amendment depends upon the facts and

circumstances of each case.*

The court noted that in the case before them, the

inventory search was part of standard police procedure

and that there was no suggestion that this procedure was

a pretext concealing an investigatory motive. It further

noted that the inventory search was not unreasonable in

scope, since a car's glove compartment is a customary

place for the temporary storage of valuables and since

vandals would have had ready and unobstructed access

to an unlocked glove compartment once inside the car.

In regards to the authority of police to impound

vehicles, the court stated:

“In the interests of public safety and as part of

what the Court has called ‘community caretaking

functions,’ Cady v Dombrowski, supra, at 441, 37 L

Ed 2d 7066. 93 S Ct 2523, automobiles are

frequently taken into police custody. Vehicle

accidents present one such occasion. To permit

the uninterrupted flow of traffic and in some

2 428 US 364; 96 S Ct 3092; 49 L Ed 2d 1000 (1976). For Michigan

cases which have followed Opperman, see, People v Long, 94 Mich

App 338; 288 NW2d 629 (1980); People v Goodwin, 94 Mich App 286;

288 NW2d 354 (1980); People v Boutell, 80 Mich App 216; 263 NW2d 36

(1977).

3 Opperman, supra, at pp 375-376.

14

circumstances to preserve evidence, disabled or

damaged vehicles will often be removed from the

highways or streets at the behest of police

engaged solely in caretaking and traffic-control

activities.

“Police will also frequently remove and

impound automobiles which violate parking

ordinances and which thereby jeopardize both

the public safety and the efficient movement of

vehicular traffic. The authority of police to seize

and remove from the streets vehicles impeding

traffic or threatening public safety and con-

venience is beyond challenge.’’*

The court stated three reasons behind the practice of

inventorying an impounded vehicle’s contents: (1) the

protection of the owner's property while it remains in

police custody; (2) the protection of the police against

claims or disputes over lost or stolen property; and (3),

the protection of the police from potential danger.*®

In the instant case, defendant had been lawfully placed

in custody after having been arrested for open

intoxicants in a motor vehicle.® Since the other occupant

of the vehicle was too young to legally drive, it was

proper for the police to impound the car rather than

leaving it parked on the road where it might obstruct

traffic and jeopardize public safety. Under these

circumstances, it was reasonable, pursuant to

departmental policy, to conduct an inventory search of

the vehicle prior to its being towed.

* Opperman, supra, at pp 368-369.

5 Id.

© People v Edwards, 73 Mich App 579, 584; 252 NW2d 522 (1977).

15

We find, however, that the search conducted was

unreasonable in scope. Air vents, unlike glove

compartments,’ or trunks,* are not a customary place for

storage of valuables. Nor are they an area within plain

view. We believe that the facts and circumstances in this

case, particularly Sgt. Hawks’ second thorough search

which included the air vents and area underneath the

car’s dashboard, indicate that the “inventory” search

here went beyond a mere search for valuables prior to

the impounding of the car. Rather, it appears to have

been made solely to search for contraband and, thus,

since no effort was made to obtain a warrant, was an

impermissible, warrantless search.

Plaintiff contends that even if the inventory search of

the front air vent conducted by Sgt. Hawks was

unreasonable in scope, the search of the vent and the

subsequent seizure of the gun was nonetheless proper.

Plaintiff claims that Sgt. Hawks had probable cause to

believe a crime was being committed in his presence

and, therefore, could properly search the car after Officer

Brown discovered marijuana in the glove compartment

during her inventory search. We do not agree.

In Chambers v Maroney, the United States Supreme

Court recognized that automobiles could be searched

without a warrant in circumstances which would not

justify the search without a warrant of a house or an

office. The court said:

“Neither Carroll, supra, nor other cases in this

Court require or suggest that in every conceivable

7 People v Goodwin, supra.

8 People v Long, supra.

2 People v Roberson, 80 Mich App 241, 243; 263 NW2d 42 (1977).

10 =399 US 42; 90 S Ct 1975; 26 L Ed 2d 419 (1970).

16

circumstance the search of an auto even with

probable cause may be made without the extra

protection for privacy that a warrant affords. But

the circumstances that furnish probable cause to

search a particular auto for particular articles are

most often unforeseeable; moreover, the

opportunity to search is fleeting since a car is

readily movable. Where this is true, as in Carroll

and the case before us now, if an effective search

is to be made at any time, either the search must

be made immediately without a warrant or the car

itself must be seized and held without a warrant

for whatever period is necessary to obtain a

warrant for the search.

“In enforcing the Fourth Amendment’s

prohibition against unreasonable searches and

seizures, the Court has insisted upon probable

cause as a minimum requirement for a reasonable

search permitted by the Constitution. As a

general rule, it is also required the judgment of a

magistrate on the probable-cause issue and the

issuance of a warrant before a search is made.

Only in exigent circumstances will the judgment

of the police as to probable cause serve as a

sufficient authorization for a search. Carroll,

supra, holds a search warrant unnecessary where

there is probable cause to search an automobile

stopped on the highway; the car is movable, the

occupants ary alerted, and the car’s contents may

never be found again if a warrant must be

obtained. Hence, an immediate search is

constitutionally permissible.’’™!

"Chambers, supra, at pp 50-51.

17

The instant case did not involve “exigent circum-

stances” which would justify a search without a warrant.

Here, unlike Chambers, supra, the automobile was

already in the process of being lawfully taken into police

custody. Since the car and its occupants were already in

police custody, the police could apply for a search

warrant without any reasonable possibility that the car

could be taken out of the jurisdiction or that contraband

could be removed before a search could be conducted.

Thus, it was not necessary here to make the choice that

in Chambers constituted the basis for upholding the

validity of the search. There was no danger here that the

car would flee and no longer be available after obtaining

of a search warrant if it proved obtainable.

Having decided that Sgt. Hawks’ second “inventory”

search of the automobile was unreasonable in scope, it is

unnecessary for us to address defendant’s two other

allegations of error. The decision of the lower court is

reversed and defendant's conviction is vacated.

REVERSED.

DISSENTING OPINION OF JUDGE DENEWETH

I must respectfully dissent. I have no quarrel with the

statement of facts in my Brother's opinion. I do not,

however, believe that the search of the vehicle itself or

the scope of that search was unreasonable in any way

whatsoever. I would affirm.

As my brothers point out, the validity of inventory

searches of vehicles has been repeatedly upheld. This

includes searches of glove compartments. See South

Dakota v. Opperman, 428 US 364, 96 S Ct 3092, 49 L Ed 2d

18

1000 (1976). The test of whether the search is unreason-

able depends upon the facts and circumstances of each

case.

In the case at bar, the car was stopped on the highway,

and, as my brother notes at p. 4 of his opinion, was a

proper subject for an impoundment and for an inventory

search.

Marijuana, a perishable substance, was found in the

glove compartment. The possession of marijuana being

illegal, it also amounted to contraband. Given the

plethora of cases that have appeared before this Court, it

would appear that its members ought to take judicial

notice that marijuana is frequently secreted in the more

inaccessible parts of motor vehicles. Surely, all law

enforcement personnel are aware of this fact.

The evidence shows at least two circumstances

justifying the second search. The car was on the highway

and a danger to other traffic and was already discovered

to have contraband contained in its various com-

partments, i.e. the glove compartment. See Chambers v.

Maroney, 399 US 42, 90 S Ct 1975, 26 L Ed 2d 419 (1970).

Moreover, there was a clear possibility that the

occupants of the vehicle could have had unknown

confederates who would return to remove the secreted

contraband. Chambers, supra. These exigent circum-

stances justified Sgt. Hawks’ second search.

I would affirm.

uoIISOdd¢

in RECEIVED

ORIGINAL DEC 9 499;

OFril ae

[SUPREME cer

NO. 81-593

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

PEOPLE OF THE STATE OF MICHIGAN,

Petitioner,

-vs-

LAMONT CHARLES THOMAS,

Respondent,

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE UNITED STATES

RESPONDENT'S BRIEF IN OPPOSITION

BY: DAVID J. HOFFMAN

Attorney for Respondent

1004 Joslyn Rd.

Pontiac, Michigan 48055

(313) 332-3370

i

QUESTION PRESENTED

*WHETHER THE POLICE CAN SEARCH AN AUTOMOBILE WITHOUT FIRST OB-

TAINING A WARRANT WHERE NO EXIGENT CIRCUMSTANCES EXIST AND

THERE IS NO PROBABLE CAUSE TO SEARCH PRIOR TO THE SEIZURE OF

THE VEHICLE?

ti

TABLE OF CONTENTS

Page

Table of Authorities “eneneee oe eee eeeneeee een eeeee re iii

*Statement of Pacts eweeeeeeeeeeeeeeeeeev ee eeeeeeenee 1

Reasons for Denying the Writ of Certiorari ...... 3

Conclusion seeseeeeeeeeeeneeeeeeeeeeeeeeeeeeeeeeeeee 6

iii

Cgses: Page

Chambers v Maroney, 399 US 42;90 S Ct 1975; 26 L Ed

2a 419 (1970) er eveeeeeeeeeeeeeeneeeeeee eee eeenne eee 3;4;5

Texas v White, 423 US 67;96 S Ct 304;46 L Ed 2d 209

(1975) eee eeeeeeeeeee eee ee eee eee eer ee ere ee eee ee ee he 3

South Dakota v Opperman, 428 US 364;49 L Ed 2d 1000

96 S Ct 3092 (1976) errr eeeeeenerenreeeeeeeee eee eee ee 5

STATEMENT OF FACTS

On May 15, 1979, Respondent Lamont Thomas was convicted

*in an Oakland County Circuit Court bench trial of carrying a

concealed waepon, contrary to MCL 750.227:MSA 28.424. On August

17, 1979, Appellant was sentenced to an imprisonment term of

three (3) to five (5) years.

On August 16, 1979, Respondent made a motion for a new

trial or a judgement notwithstanding the verdict, claiming that

the gun upon which the charge was based was produced through an

illegal search and seizure. The motion was denied by the trial

judge, who was unable to conclude that the search and seizure

was unreasonable. Respondent appealed as of right to the Court

of Appeals, who reversed his conviction because of the illegal

search and seizure on February 9, 1981. On March 17, 1981, the

Court of Appeals denied Petitioner's Application For Rehearing.

On July 28, 1981, the Michigan Supreme Court denied Petitioner's

Application For Leave To Appeal.

At trial, Sergeant Hawks testified that he and his part-

ner, Officer Brown, stopped a vehicle on Lake Street in Pontiac,

Michigan, that had failed to make a signal for a left-hand turn

at the intersection of Orchard Lake Road and Lake Street. (R, 25)

Hawks placed Repondent under arrest for open intoxicants

in a motor vehicle. (R,20) The driver of the vehicle was issued

a citation for failure to have a driver's license. (R,30)

When asked whose vehicle it was, Respondent stated, ‘Me

and my old lady's.” (R,30) Respondent and the driver were take.

to the patrol vehicle. (R,30) Pursuant to departmental policy.

a wrecker was called to tow the vehicle.

Prior to the arrival of the wrecker, Officer Brown search-

ed the vehicle, pursuant to departmental policy, (R,31) and dis-

ial os

covered two bags of suspected marijuana in the glove compart-

ment. (R,31) Sergeant Hawks then proceeded to search the ve-

hicle again, also pursuant to departmental policy, (R,34) and

G@iscovered a gun in a closed air vent underneath the dashboard,

(R,62) although he had no idea what was under the dashboard.

(R, 58)

-2-

REASONS FOR DENYING THE

WRIT OF CERTIORARI

é Petitioner's reliance on this Court's holding in Texas

v White, 423 US 67;96 S Ct 304;46 L Ed 2a 209 (1975) and their

narrow reading of Chambers v Maroney, 399 US 42;90 S Ct 1975; 26

L Ed 2d 419 (1970) is misplaced in the case before this Court.

In both Texas v White, supra, and Chambers v Maroney, supra, the

police had probable cause to arrest the defendants prior to the

stop and seizure of their automobiles. At the time ef the sel

zure of the vehicles the police officers had probable cause to

believe that the vehicles carried fruits of a crime recently com-

mitted. This probable cause existed at a time when the vehicles

were clearly mobile and loss of evidence was very possible.

The rationale this Court used in Chambers v Maroney,

Supra, which obviates the general rule that requires exigent cir-

cumstances be present to justify a probable cause warrantless

search, was as follows;

For constitutional purposes, we see no dif-

ference between on the one hand seizing and

holding a car before presenting the probable

cause issue to 4 magistrate and on the other

hand carrying out an immediate search with-

out @ warrant. Given probable cause to

search, either course is reasonable under

the Fourth Amendment .1!

In that event there is little to choose in

terms of practical consequences between an

immediate search without a warrant and the

car's immobilization until a warrant is ob-

tained,2

There was no probable cause to search the vehicle the

respondent was riding in at the time of the initial stop. Only

a traffic violation had taken place. There still existed no

1, Chambers v Maroney, supra, at 1981.

2. Ibid.

"3

probable cause to search at the time of the arrest of che re-

spondent for having open intoxicants in the vehicle. And even

at the time the police seized the vehicle there existed no pro-

bible cause to search as the seizure was done pursuant to "“de-

partmental policy.”

Since there existed no probable cause to search prior

to the seizure of the respondents vehicle there existed no right

to conduct an immediate search according to the narrow holding

in Chambers v Maroney, supra, The broader holding in Chambers

v Maroney, supra, would be controlling in the instant case in

that "As a general rule, it has also required the judgment of

@ magistrate on the probable-cause issue and the issuance of a

warrant before a4 search is made. Only in exigent circumstances

will the judgment of the police as to probable cause serve as a

sufficient authorization for a search". 3

The Petitioner is suggesting that there is no differ-

ence between police stopping, seizing and searching a vehicle

they had probable cause to believe contained fleeing felons and

fruits of a crime and police stopping a vehicle for a minor

traffic violation, seizing the vehicle based on “departmental

policy”, searching the vehicle also due to “departmental policy”

and then searching the vehicle a second time pursuant to “de-

partmental policy.” Exceptions have been made to the warrant re-

quirements set forth in the Fourth Amendment but each has been

based on special, exigent circumstances, but never based on an un-

expressed, unknown “departmental policy.” The Fourth Amendment

was not written to protect police from choosing between two un-

desirable options as petitioner maintains, but it was written to

protect citizens from unreasonable searches anc seizures, such 4s

3. Chambers v Maroney, supra, at p 1981.

aie

in this case.

Effectively, petitioner is suggesting that a warrant

is no longer needed in vehicular stops, even for the most minor

traffice offenses. Chambers v Maroney, supra, does not sanction

a’ result such as petitioner is seeking. Only when probable

cause exists at the time of the seizure of the automobile will

the warrant requirement be waived.

No justification or reason was ever given by the

police as to why they seized the respondent's vehicle other then

it was policy. The respondent was never asked what he wanted

done with the vehicle nor was there any suggestion that the auto-

mobile was seized because it would “jeopardize both the public

saftey and the efficient movement of vehicular traffic," South

Dakota v Opperman, 428 US 364;49 L Ed 2d 1000; 96 S Ct 3092

(1976), which would validate the impoundment of the automobile.

Moreover, the petitioner's entire contention fails be-

cause it was never suggested by Sergeant Hawks that his search

was based on any sort of probable cause. His only rationalization

for the search was because it was “departmental policy.”

In summary, the Michigan Court of Appeals correctly

suppressed the evidence in this case as being seized in violation

of the Fourth Amendment. The Court of Appeals properly applied

Chambers v Maroney, supra, in holding that some exigent cir-

cumstances were necessary as probable cause to search did not

exist at the time of the seizure of the vehicle. This, coupled

with the fact that the search was based on departmental policy

and not probable cause, is sufficient for this Court to deny this

petition for writ of certiorari.

CONCLUSION

‘ WHEREFORE, Respondent respectfully requests that this

Honorable Court deny this petition for a writ of certiorari to

review the judgment of the Michigan Court of Appeals.

Resagctfully — Ye)

ae? heen

DAVID J. HOF £

Attorney for Respondent

1004 Joslyn Rd.

Pontiac, Michigan 48055

(313) 332-3370

-6-

RECEIVED

DEC 9 1981

IN THE SUPREME COURT OF THE UNITED ATRBACE OF THE CLERK

SUPRFME COURT, US.

OCTOBER TERM 1981 —

NO. 81-593 |

MICHIGAN,

Petitioner,

-vs-

LAMONT CHARLES THOMAS,

Respondent.

DAVID J. HOFFMAN (P 28668)

Attorney for Respondent |

aS

CERTIFICATE OF SERVICE

I, DAIVD J. HOFFMAN, Attorney for Respondent, LAMONT

CHARLES THOMAS, and a member of the Bar of the Supreme Court of

the United States, hereby certify that, on the 4thday of December '

19861, I served copies of the foregoing Motion for Leave to 1

in Forma .auperis, Affidavit in Support of Motion for Leave to '

i

Proceed in Forma Pauperis, and Respondent's Brief in Opposition

to Petition for a Writ of Certiorari to the Supreme Court of the

United States by personally delivering same to the Attorney for

Petitioner, L. BROOKS PATTERSON, Prosecuting Attorney of Oakland |

County, at 1200 N. Telegraph Road, Pontiac, Michigan, 48053.

It is further certified that all parties required to be

served have been served.

—o-@ os oe +s =

~ Z oo

DAVID J. F i

Attorney for Respondent

1004 Joslyn Rd.

Pontiac, MI 48055

332-3370

—— ones. + ao

— em

Cyr ORIGINAL RECEIVED

DEC 9 1981

OFFICE OF THE CLERK

AY SUPREME COURT, U.S,

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

PEOPLE OF THE STATE OF MICHIGAN,

Petitioner,

_e

LAMONT CHARLES THOMAS,

Respondent,

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE UNITED STATES

RESPONDENT'S MOTION FOR LEAVE

TO PROCEED IN FORMA PAUPERIS

BY: DAVID J. HOFFMAN

Attorney for Respondent

1004 Joslyn Rd.

Pentiac, Michigan 48055

(313) 332-3370

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1981

NO. 81-593

MICHIGAN,

Petitioner,

-vs-

LAMONT CHARLES THOMAS,

Respondent.

ENT VE

N R ER i

LAMONT CHARLES THOMAS, the Respondent, respectfully moves

the Court for leave to proceed herein in forma pauperis, in accord-

‘ance with the provisions of Title 28, United States Code, Section

1915, and Rule 46 of this Court, and to file herein his response |

to the petition for writ of certiorari to the Supreme Court of the

United States in single counterpart, without printing the same. :

The typed brief of respondent in opposition is presented herewith

for filing.

LAMONT CHARLES THOMAS, the Respondent, sought leave and

was granted leave to proceed in forma pauperis at the trial court

level in the Oakland County Circuit Court and at the appeliate

court level in the Michigan Court of Appeals and the Supreme Court

of the State of Michigan.

The affidavit of LAMONT CHARLES THOMAS, Respondent, in sup)

port of this motion is filed herewith.

ctfully s Meg

( , &

C ff, eect zy

DAVID J. F (P 28668)

Attorney for Respondent

1004 Joslyn Rd.

Pontiac, Michigan 48055

(313) 332-3370

RECEIVED

ORIGINAL

DEC 9 1981

OFFiCe OF THe CLERK

SUPRE Me COURT. U.S.

NO. 81-593

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

PEOPLE OF THE STATE OF MICHIGAN,

Petitioner,

-vs-

LAMONT CHARLES THOMAS,

Respondent,

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE UNITED STATES

RESPONDENT'S AFFIDAVIT IN SUPPORT OF

MOTION TO PROCEED IN FORMA PAUPERIS

BY: DAVID J. HOFFMAN

Attorney for Respondent

1004 Joslyn Rd.

Pontiac, Michigan 48055

(313) 332-3370

a

F

Ea" —_

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1981

NO. 81-593

ee + ee + eee

MICHIGAN,

Petitioner,

-vs-

LAMONT CHARLES THOMAS,

Respondent.

——

DAVID J. HOFFMAN (P 28668)

Attorney for Respondent

es

AFFIDAVIT IN SUPPORT OF MOTION

TO PROCEED FORMA PAUPERIS

I, LAMONT CHARLES THOMAS, being furst duly sworn, depose

and say that I am the Respondent in the above entitled case; that

in support of my motion to proceed on appeal without being required

to prepay fees, costs, or give security therefor, I state that be-

cause of my poverty, I am unable to pay the costs of said pro-

ceeding or printing or to give security therefor.

I further swear that the responses which I have made to

the questions and instructiors below relating to my ability to pay

the costs of defending this appeal are true.

1. Are you presently employed? NO

2. Have you received within the past 12 months any income,

from a business, profession, or other form of self-employment, or

—e--=

in the form of rent payments, interest, dividends, or other source?

NO

3. Do you own any cash or checking or savings accounts?

YES,

@. $280.00-joint with wife

me ee eee

4. Do you own any real estate, stocks, bonds, notes, auto-

a

|

; Subscribed and swo

=f

ee

—

“|

mobiles, or other valuable property (excluding household furnishings

and clothing)? YES

!

a. Real Estate - Value $28,000.00 Owed $28,000.00 |

joint with wife

b. 1974 Duster automobile $700.00

joint with wife

Cc. 1974 Honda Motorcycle $1,200.00

5. List the persons who are dependent on you for support

and state your relationship to those persons.

VERNITA THOMAS - wife

DEVINA THOMAS - daughter

I understand that a false statement or answer to any ques-

tions in this affidavit will subject me to penalities for perjury.

LAMONT CHARLES THOMAS, Zazzck

STATE OF MICHIGAN)

)ss

COUNTY OF OAKLAND)

fore me this ‘5? day of Decembde -, 19861.

Sv

DAVID J. HOFFMAN,

Oakland County, Michigan

My Commission Expires:

' 12/6/83