Record and brief — Cobbs v. Virginia

Oleg

Ml

~——_

81-1858

MAR J

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1982

NO.

KENNETH COBBS,

Petitioner,

Vv.

COMMONWEALTH OF VIRGINIA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF VIRGINIA

David E. Boone, Esquire

George Wm. Warren, IV, Esquire

Suite 116, Shockoe Center

11 South Twelfth Street

Richmond, Virginia 23219

Counsel for Petitioner

QUESTION PRESENTED

Whether Petitioner adequately

and procedurally proved that the

false statements in the affidavit for

the search warrant were sufficient to

Suppress the evidence seized therefrom

in violation of his Fourth and

Fourteenth Amendment rights.

TABLE OF CONTENTS

OPINION BELOW ...+ e+e «

Nui be (oy os

QUESTION PRESENTED .... .-

STATEMENT OF THE CASE... .

A. Course of Proceedings

B. Fact® .-«-+-see-e«e e@

REASONS FOR GRANTING WRIT. .

CONCLUSION .. ++. + « « »

CERTIFICATE . .«. © «© © © © « «@

ORDER OF THE VIRGINIA SUPREME

COURT 12/28/81 ....+s-.

(i)

Page (s)

13

21

23

24

TABLE OF CITATIONS

Cases: Pages:

Chambers v. Maroney, 399

U.S. 42 7 . . . . . 18, 19

Franks v. Delaware, 4380

i. Bee Cneeees « + co o oe BSc BB, 39,

a0, abe @24

Howe v. United States, 36l

* — . * * . * * 20

Mapp v. Ohio, 367

U.S. 643 (1961) ..... 16

New York v. Belton, 450

i ie: a.. 9 iS

South Dakota v. Opperman, 428

Cue Se CEPOls « « 0 co oe 29

Steagold v. United States,

510-5. 204 (1981)... . 20

Stone v. Powell, 428

ails ee Een, 2 «© © co eo 2S

United States v. Calandia,

* ~ . . >. . 15

Weeks v. United States, 232

U.S. 383 (1914). * . . _ . 16

ii

IN THE

SUPREME COURT OF THE UNITED STATES

NO,

KENNETH COBBS,

Petitioner,

Vv.

COMMONWEALTH OF VIRGINIA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF VIRGINIA

Petitioner, Kenneth Cobbs, peti-

tions this Court for a Writ of Certi-

Orari to review the judgment of the

Supreme Court of Virginia.

OPINION BELOW

Petitioner filed a petition for

appeal to the Supreme Court of Virginia

from convictions in the Circvit Court

of the County of Henrico on September l,

1981. By its Order dated December 28,

2

1981, a copy of which is appended to

this Petition, that Court refused the

Petition for Appeal.

JURISDICTION

The jurisdiction of this Court

is invokec pursuant to 28 U.S.C.

§1257 (3).

QUESTION PRESENTED

Whether Petitioner adequately

and procedurally proved that the

false statements in the affidavit for

the search warrant were sufficient to

suppress the evidence seized therefrom

in violation of his Fourth and

Fourteenth Amendment rights.

STATMENT OF THE CASE

A. Course of Proceedings

3

Petitioner was tried in a bench

trial on March 27 and May 13, 1981,

on indictments charging felonious

possession with intent to distribute

more than one half ounce, but not

more than five pounds of marijuana and

felonious possession of cocaine, a

schedule II controlled substance. On

the first charge he received a ten

year penitentiary sentence with five

years suspended for a period of

twenty years. On the latter charge

he received the same sentence with

the penitentiary sentence to run

consecutively.

The following Assignment of

Error was contained in his Petition

for Appeal to the Virginia Supreme

Court:

That the affidavit for the

4

search warrant contains false

information which, when

corrected, lacks the requisite

probable cause. Consequently,

the Judge erred in denying

Appellant's motion to suppress

the evidence seized pursuant to

said warrant.

B. Facts

Petitioner was arrested by

Henrico County, Virginia police on

September 12, 1980. Seized from his

automobile were marijuana and cocaine.

A search warrant was executed on the

vehicle after Petitiorer had been

arrested. The affidavit for the

warrant read as follows:

On September 11, 1980 at

approximately 11:30 P.M. while

on stationary survillance (sic)

at the Sunoco station at the

intersection of I64 and Laburnum

Ave. located in Henrico County,

this affiant observed a black

over gray 1976 Cadalic (sic)

Virginia Lic. VEY-793 pull into

the lot. A short time later a

red Chev. driven by a black male

pulled into the lot near the

5

Cadilic (sic). The black male

in the red Chev. got out of his

vehicle and went to the driver

of the Cadalic (sic). The

driver of the Cadalic (sic) who

was a black male also got out of

his car and went to the trunk

and took out a black sackel (sic).

He then got back into the Cadalic

(sic), and the other subjec (sic)

got back into the red Chev. and

left. At this time a blue

vehicle pulled into the lot at

which time the driver of the

Cadalic (sic) went over and got

into this vehicle. Subject

returned to the Cadalic (sic)

and got a small package and

returned to the ble (sic) vehicle.

This subject then got out of the

blue vehicle and the car drove

off. This black male then went

and used the phone and then left.

On September 12, 1980 this affiant

was on stationary survillance

(sic) at the Sunoco station on

Laburnum Ave. at its intersection

with 164 when he observed this

same black over gray 1976 Cada-

lic return to the station, at

approximately 11:30 PM. At

approximately the same time a

green Lincoln bearing Va. Li-

cense JVG-3 pulled into the lot

also. The driver of the Cada-

lic (sic) gets out and goes to

the Lincoln and gets into the

vehicle. He then gets out of

6

the Lincoln and returns to his

car and gets a small plastic bag

out of the trunk and returns to

the Lincoln. At this time this

affiant and several other offi-

cers approach these subjects and

find a small bag of marijuana

in there (sic) possession. The

black male driving the Cadalic

(sic) was ordered out of his

vehicle at which time he got

out and left the door open.

This affiant observed a large

brown plastic bag pushed

between the floor and the seat

at this time.

At approximately 0200 hours

Investigator Kevin D. Macafee

of the Chesterfield County Po-

lice Dept. arrived with his

dog Kennedy who has Customs

Brand #0237 a graduate from

class #89 of the U.S. Customs

Detector Dog School Front

Royal Va. on July 18, 1980.

Kennedy is certified on detec-

tion of Hash, Marijuana, Co-

caine, and Heroin after com-

pleting a 480 hour course.

The dog was placed near the

vehicle and indicated to his

handler there was drugs of

some type in the brown bag

inside of the 1976 black over

gray Cadalic (sic).

Base (sic) on the information

in this affidavit I firmly

-

believe that there are now

illegal drugs inside of the

1976 black over gray Cadalic

(sic) Virginia Lic. VEY-793

located on the parking lot of

the Sunoco Station at 164 and

Laburnum Ave. in Henrico

County.

Upon a motion to suppress

evidence, a hearing upon which as

agreed by the parties was held

contemporaneous with the trial,

Petitioner sought to suppress from

evidence the drugs and other material

seized from the vehicle. The original

basis for the motion was that the

affidavit did not establish probable

cause for the search. After the

testimony of the arresting officer,

Petitioner also argued that there

had been materially false statements

in the warrant which should have

vitiated it and the eviijence

8

seized pursuant to it.

At trial and upon the motion

hearing the facts of the arrested

were developed as follows: On Sep-

tember 11, 1980, police officer

William H. Pridemore was on stationary

surveillance at a service station in

Henrico County. There had been several

break-ins of vehicles on the lot which

gave rise to the police surveillance.

At approximately 11:30 p.m., while the

station was closed, he observed a

black over gray 1976 Cadillac pull

into the driveway area of the station.

Petitioner, driver of the vehicle, was

observed by Pridemore to get out of

the car, go to the trunk of the vehicle,

remove an item, and get back into the

vehicle. Within a minute a red

vehicle pulled on to the lot next to

9

Petitioner's vehicle. An exchange was

made between these two subjects in

these cars and the red car left.

Shortly thereafter, a blue car pulled

onto the lot. At this time Petitioner

got out of his car, walked over to the

blue vehicle, then returned back to

his vehicle at which time the blue car

left tne lot. Pridemore could not

testify as to what, if anything, took

place between Petitioner and the

driver of the blue car. After the

blue car left the lot, Petitioner got

back into his automobile and drove

away.

The next night, September 12,

1980, Pridemore again was placed on

Stationary surveillance at the gas

Station. At 11:30 p.m., Petitioner

pulied into the service station lot

10

in the same manner in which he did the

previous night. He got out of his

vehicle, opened the trunk of his car

and took a brown bag out and placed

it in the passenger compartment of

his car. Subsequently, a green

Lincoln pulled into the service sta-

tion lot. At this time, Petitioner

got out of his vehicle, got into the

Lincoln for just a second or two,

returned back to his vehicle and

removed a small plastic bag, which

he had in his hand as he left his

vehicle. Petitioner walked back over

to the Lincoln and got inside. He

was in the Lincoln for maybe fifteen

or twenty seconds. He got back out

and returned to his vehicle and

got inside. At this time Pridemore

and two other police officers appre-

ll

hended both individuals. The green

Lincoln was searched and a plastic bag

containing marijuana was taken from

the front seat. The driver was sitting

on it.

A police officer told Petitioner

to get out of his automobile. When he

did so, the driver's side door

remained open. The interior lights

were On inside the vehicle. Pridemore

placed him under arrest at this time

and in plain view could see a brown

plastic type of bag halfway out from

underneath the driver's seat.

Pridemore testified that he oould

not see into the bag. Pridemore

contacted officer Sherry of the

Henrico Vice Unit and asked for his

assistance. Additionally, Pridemore

put in the request that officer

12

MacAfee of another police jurisdic-

tion respond with a dog trained in

the detection of narcotics.

Pridemore testified MacAfee

responded with his drug dog. MacAfee

placed the dog next to the Petitioner's

car and the dog made a trip around the

car and then went into the car. The

dog went into the back seat and

smelled around the back seat and then

came back out and kept smelling the

trunk then returned back inside the

car up on the front seat at which

time the dog pulled the bag out from

underneath the front seat. After the

dog pulled the bag out from underneath

the front seat, the dog was disengaged

from the bag and taken away. At this

point Pridemore went before a

magistrate and obtained a search warrant.

12

MacAfee of another police jurisdic-

tion respond with a dog trained in

the detection of narcotics.

Pridemore testified MacAfee

responded with his drug dog. MacAfee

placed the dog next to the Petitioner's

car and the dog made a trip around the

car and then went into the car. The

dog went into the back seat and

smelled around the back seat and then

came back out and kept smelling the

trunk then returned back inside the

car up on the front seat at which

time the dog pulled the bag out from

underneath the front seat. After the

dog pulled the bag out from underneath

the front seat, the dog was disengaged

from the bag and taken away. At this

point Pridemore went before a

magistrate and obtained a search warrant.

13

A search of the car revealed marijuana

in the brown plastic bag found under-

neath the driver's seat and, addition-

ally, a small quantity of marijuana and

cocaine were found in the trunk of the

vehicle.

REASONS FOR GRANTING THE WRIT

Whether Petitioner adequatley and

procedurally proved that the false state-

ments in the affidavit for the search

warrant were sufficient to suppress the

evidence seized therefrom in violation of

his Fourth and Fourteenth Amendment

rights.

As the Court said in Franks v.

Delaware, 438 U.S. 154 (1978), it was

faced with ". . . an important and long-stand-

ing issue of Fourth Amendment law. 438 U.S. at

454." As posed by the Court that question was

14

whether:

"a defendant in a criminal pro-

ceeding ever has the right, under

the Fourth and Fourteenth Amend-

ments, subsequent to the issuance

of an ex parte search warrant, to

challenge the truthfulness of

factual statements made in an

affidavit supporting the warrant?"

438 U.S. at 154.

It was there held that in certain

specified circumstances a challenge to

the affidavit's factual veracity would

be permitted. If the accused makes a

substantial initial showing that a

false statement knowingly and inten-

tionally made or made with reckless

disregard for its truth is included in

the affidavit by the affiant and if

such claimed false statement was

necessary to the finding of probable

cause by the judicial officer, then

the Defendant is entitled to a hear-

ing in the allegations. If, at such

15

hearing, he meets his burden of proof

by a preponderance of the evidence in

the issue and if it is concluded that the

affidavit without the false information is

insufficient to establish the requisite

probable cause, then the search warrant

is void and the evidence seized pursuant

to it not admissible.

Franks v. Delaware, supra, is tes-

tament to the living vitality of the

exclusionary rule which was judicially

created to prevent and remedy police

misconduct. United States v. Calandia,

414 U.S. 338 (1974); Stone v. Powell,

428 U.S. 465 (1976). It affirms the

societal value that evidence seized

in violation of an individual's

rights under the fourth and Fourteenth

Amendments cannot be introduced at

trial against that person.

16

Weeks v. United States, 232 U.S. 383

(1914); Mapp v. Ohio, 367 U.S. 643

(1961).

In the instant matter with the

agreed procedure of hearing the suppres-

sion motion at trial, it was not dis-

covered until the first police officer

testified that there were false state-

ments contained within the affidavit in

Support of the search warrant request.

The affidavit claims the drug dog

was placed near the vehicle and indicated

to his handler there were drugs of some

type in the brown bag inside the car.

This claim is wholly inaccurate. It was

only after the dog was put in or allowed

inside the vehicle that he “alerted” to

the presence of drugs (Trial Transcript,

pgs, 41-42).

A second false statement heightens

17

and compounds the first false statement.

It is claimed that when the officers

first approached Defendant and the

other person they found "a small bag of

marijuana in there (sic) possession."

But the testimony revealed that when

this event took place the second per-

son was sitting on the marijuana in

his own vehicle while the Defendant

was not in there but in his own

vehicle.

These two misstatements of fact,

whether intentionally made or done

with reckless disregard for their

truthfulness were indispensable for

the magistrate to make his indepen-

dent determination of probable cause

for the issuance of the warrant.

Without the presence of these false

statements, no probable cause existed

18

for the warrant's issuance.

In his Brief in Opposition to

the Petition for Appeal the Common-

wealth argued alternatively (1) that

the misstatements were mere "incon-

gruences”" which should be viewed as

harmless error at best; (2) that

Defendant failed to articulate the

Franks issue at trial; and (3) that

even if the warrant were to fail,

the search was justifiable and the

fruits admissible due to the exigent

circumstances exception to the

warrant requirement. Chambers v.

Maroney, 399 U.S. 42 (1970).

In regard to the claim by the

Commonwealth that the Franks issue

was incorrectly raised, it would

seem important to note that in this

factual setting as well as many,

19

many others the issue will arise during

the course of a trial. It would be

well for this Court after the Franks

decision to instruct in the issue of

how to properly raise the Franks issue

when it is first discovered at the

trial of the case. In regard to the

independent exigent circumstances

position of the Commonwealth relying

upon the mobility of an automobile and

the lesser invasion of privacy for a

vehicle, Chambers v. Maroney, supra,

and South Dakota v. Opperman, 428 U.S.

364 (1976) it is well to point out that

Defendant was already under arrest at

the time one of the policemen left the

scene to go to the magistrate to get

the warrant. Police are to be

encouraged to use the warrant provi-

sion of the Fourth Amendment,

20

Steagold v. United States, 45l U.S.

204 (1981), rather than relying upon

the warrantless exceptions. Such a

choice demonstrates regard for the

privacy sought to be protected

while at the same time recognizing

the need for intelligent and effi-

cient police work. Henry v. United

States, 361 U.S. 98 (1959).

The exigent circumstances excep-

tion to the warrant requirement in

light of New York v. Belton, 450 U.S.

1028 (1981) would not assist the

Commonwealth here. The issues posed

by the instant matter are thus

reduced to the procedural framework

of a Franks situation where the

articulation of an affidavit's pur-

ported lack of truthfulness does

not arise until trial. If, as here,

21

Defendant, who has prior to trial

moved to suppress evidence unrelated

to a Franks problem and during the

course of the trial, he demonstrates

by a preponderance of the evidence

that a false statement or statements

have been made by the affiant, and

but for those false statements there

existed no probable cause for the

issuance of the warrant, then the

Court should decide that the proce-

dural pre-trial requirements set

forth in Franks have been met and

the evidence seized pursuant to the

warrant is not admissible.

CONCLUSION

It is respectfully submitted by

the Petitioner that material false

statements were used in the affidavit

22

for search warrant and without which the

warrant could not have been issued. His

convictions were based upon illegally

obtained evidence which should not have

been admitted at trial. A Writ of

Certiorari should be granted to determine

the proper Franks v. Delaware, supra,

procedure when such problemis first made

known at trial.

Respectfully submitted,

KENNETH COBBS

By af ' ae. wF

Cn: E. Boone

George Wm. Warren, IV

23

CERTIFICATE

I hereby certify that true copies

of this Petition for Writ of Certiorari

were mailed to Gerald Baliles, Esquire,

Attorney General for the Commonwealth

of Virginia, 101 N. 8th Street,

Richmond, Virginia 23219, and to

Duncan P. Reid, Esquire, Assistant

Commonwealth's Attorney for the

County of Henrico, P. O. Box 27032,

peel > th

Richmond, Virginia 23273 on this ~~

day of March, 1982.

(= saZ \AZ7 fH

CS)" ' at ; Ȣ ADA,

a

“David E. Boone

George Wm. Warren, IV

VIRGINIA:

In the Supreme Court of Vinginia held at the Supreme Court Building in the

City of Richmond on Monday = the 28th day of December, 1981.

Kenneth Cobbs,

against Record No. 811545

Circuit Court Nos. 80F606 and 80F607

Appellant,

Commonwealth of Virginia, Appellee.

From the Circuit Court of Henrico County

Finding no reversible error in the judgments complained

of, the court refuses the petition for appeal filed in the above-

styled case.

A Copy,

Teste:

Allen L. Lucy, Clerk

yt ao,

Deputy Clerk

—

UOIISOddE

Office - Supreme Court, U.S.

FILED

MAY 12 1962

ee

In The CLERK

Supreme Court of the United States

October Term, 1982

No. 81-1858

KENNETH COBBS,

Petitioner,

v.

COMMONWEALTH OF VIRGINIA

Respondent.

BRIEF IN OPPOSITION

TO A PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF VIRGINIA

Joun RicHarp ALDERMAN

Assistant Commonwealth’s Attorney

Henrico County, Virginia

Henrico County Courthouse

Parham and Hungary Spring Roads

P. O. Box 27032

Richond, Virginia 23273

Counsel for Respondent

TABLE OF CONTENTS

Page

I I aecietaneceeninialnnealilnenael 1

ARGUMENTS AGAINST GRANTING WRIT .............--cccco-ecccc-eeccecceececeees 3

ier eeneennenenneds a 5

SEES SS Ee ee p 6

TABLE OF CITATIONS

Cases

Franks v. Delaware, 438 U. S. 154 (1978) ... int 3

New York v. Belton, 450 U. S. 1028 (1981) 00. ecccececeeeeeee

In The

Supreme Court of the United States

October Term, 1982

No. 81-1858

KENNETH COBBS,

Petitioner.

v.

COMMONWEALTH OF VIRGINIA,

Respondent.

BRIEF IN OPPOSITION

TO A PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF VIRGINIA

STATEMENT OF THE CASE

Petitioner’s Statement of the Case is accurate concerning

the contents of the search warrant affidavit and the events

surrounding the arrest, the search of the vehicle and seizure

of illegal drugs found therein. However, Petitioner fails to

state completely the events concerning the factual issues in

this appeal.

Petitioner filed a motion to suppress evidence seized from

his vehicle, alleging that the search warrant affidavit did

not establish probable cause. The trial court overruled the

motion. (Record, p. 28).

2

The factual issue counsel for Petitioner argued in the

suppression hearing concerns the second paragraph of the

affidavit, which reads

At this time this affiant and several other officers ap-

roached these subjects and find a small bag of mari-

Juana in there (sic) possession. (Emphasis added).

Petitioner argued that “there” was ambiguous because it

did not indicate where the marijuana was found, and that

without such information, there was no probable cause.

(Record, p. 9).

The trial court acknowledged that the ambiguity “might

cause the Court a little concern ... (and) . . . they should

have spelled it t-h-e-i-r,” (Record, p. 27), nevertheless

“ . . the word there is there for the magistrate and he

may or may not know the difference between the two,

but it certainly should be reasonable to interpret that

the magistrate figures that there means in their posses-

sion regardless of how it’s spelled . . . .” (Record, p. 27)

(Emphasis added).

The testimony at trial disclosed that the marijuana was

found in the front seat of the second vehicle, with the

driver of that vehicle sitting on it. Petitioner had returned

to \us own vehicle when the police apprehended both sub-

jects and found the marijuana. (Record, p. 46).

Petitioner alleges that this testimony “revealed” (Petition,

p. 17) marijuana in one vehicle while he was in another,

thus making the statement in the affidavit false. However,

the only thing “revealed” by this testimony is that the

driver of the second vehicle “was sitting on the marijuana” ;

counsel for Petitioner argued in the trial court that mari-

juana was found in one car and Petitioner in another.

(Record, p. 9-10).

3

A second fact was “revealed” at trial which may make a

second statement in the affidavit false. The testimony

showed that the dog did not indicate the presence of drugs

in Petitioner’s vehicle until he had been inside of the

vehicle. The affidavit reads

The dog was placed near the vehicle and indicated to

his handler there was drugs of some type in the brown

bag inside of the 1976 black over gray Cadalic (sic).

(Emphasis added).

What the Petition does not say is that when counsel for

Petitioner heard this testimony he acknowledged it was “new

evidence” (Record, p. 43), but he failed to question either

of the witnesses about the possible conflict between the

affidavit and their testimony. (Record, p. 43-44 and p. 63).

At the conclusion of the Commonwealth’s evidence, Peti-

tioner renewed his motion to suppress because of the “dif-

ferent evidence than what we have in the affidavit,”

(Record, p. 64), but he did not ask for a hearing to con-

sider the effect of the discrepancies upon the case against

his client, nor did he make any showing that the witnesses

had perjured themselves.

ARGUMENTS AGAINST GRANTING THE WRIT

I. The present case does not present an issue allowing a challenge

to the veracity of a search warrant affidavit.

Petitioner fails to prove the prerequisites necessary to

even demand a hearing on the validity of the search war-

rant affidavit, much less establish that the alleged falsity

renders the warrant invalid. Frank v. Delaware, 438 U. S.

154 (1978).

Upon discovery of the alleged falsity, Petitioner made

4

no attempt to demonstrate whether the alleged false state-

ments were made either “knowingly or intentionally, or

with reckless disregard for the truth,” or show that the

two statements were essential to the finding of probable

cause. Petitioner did not even request a hearing at which

such determinations might have been made. (See Franks,

438 U. S. at 155-156). Petitioner’s whole argument is pred-

icated upon the mere assertion that the two statements in

the affidavit are false. Even if they are false, Franks spe-

cifically held that allegations of negligence; i.e., misspelling

“their” or innocent mistakes (typing “near the vehicle”

when the affiant has personally observed the dog “inside

the vehicle”) are insufficient to invalidate the warrant.

Franks, 438 U.S. at 171.

Il. The evidence Petitioner seeks to have excluded would be ad-

missible even without a search warrant.

Under the holding in New York v. Belton, 450 U. S.

1028, (1981) the validity of the search of Petitioner’s car

in this case does not depend upon the validity of the war-

rant. Belton held:

When a policeman has made a lawful custodial arrest

of the occupant of an automobile, he may, as a con-

temporaneous incident of that arrest, search the pas-

senger compartment of that automobile. It follows from

this conclusion that the officer may also examine the

contents of any containers found within the passenger

compartment, . . . whether it is open or closed... .

Belton, 450 U. S. at 455.

In the present case, counsel for Petitioner acknowledges

that the search was incident to an arrest (Record, p. 68)

and the .alidity of the arrest is not challenged.

5

CONCLUSION

It is respectfully submitted that Petitioner failed to

establish grounds under either the Franks decision or the

Pelton decision which would have required suppression of

the evidence in this case. The trial court’s decision to admit

the evidence was consistent with both Federal and State

law. Therefore, a Writ of Certiorari in this case should

be denied.

Respectfully submitted,

CoMMONWEALTH OF VIRGINIA

Jou? Ricnarp ALDERMAN

Assistant Commonwealth’s Attorney

County of Henrico, Virginia

JouHN RicHarp ALDERMAN

Assistant Commonwealth’s Attorney

Henrico County, Virginia

Henrico County Courthouse

Parham and Hungary Spring Roads

P. O. Box 27032

Richmond, Virginia 23273

Counsel for Respondent

6

CERTIFICATE

I hereby certify that true copies of this Brief in Opposi-

tion to a Petition for a Writ of Certiorari were mailed to

David E. Boone, Esquire, Attorney for the Petitioner, Suite

116, Shockoe Center, 11 South Twelfth Street, Richmond,

Virginia 23219 on the ...49... day of May, 1982.

rb A Moreen

nw RicHarpD ALDERMAN