Opposition — Michigan v. Miller

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

No. 62-333

STATE OF MICHIGAN,

Petitioner,

ve.

JAMES MILLER,

Respondent.

* A”. a

‘HE SUPREME CC

TATE OF MICHIC

|

RESPONDENT'S BRIEF IN OPPOSITION

STATE APPELLATE DEFENDER OFFICE

JAMES R. NEUHARD

Defender

KIM ROBERT FAWCETT

Assistant Defender

Third Floor,North Tower

1200 Sixth Avenue

fetroit, Michigan 48226

(313) 256-2614

Counsel for Respondent

COUNTER STATEMENT OF QUESTIONS nn 11

COUNTER STATEMENT or . eee 111

REASONS FOR DENYING THE . eee ee eee 1

ARGUMENT ;

I. THE PETITION Is . eee eee 1

11. NO SUBSTANTIAL FEDERAL QUESTION IS INVOLVED IW

OCCURRED,

WAS INTO THE INTERIOR OF HIS BRIEFCASE WHICH

HE LEFT INSIDE THE CLOSED CARs . . „ „„ „„ 3

i. „ ³ 64 cocccscccccccccsevcéccocccens 3

2. THE SOLE QUESTION IS WHETHER THE

BRIGHT-LINE RULE or A* YORK V BELTON

APPLIES TO THIS F, ere eee 4

REMOVED FROM THE CAR THUS, THIS CASE Is

— mee on TON TO A

DIFFERENT KIND OF F THAT

ron WHICH THE RULE was DESIGNED. 2 0c cccccccccccece 10

US Const Am 4, 6, Me cccccccccccececce iii bbb haar itititttT tT 2,3

SCR 1963 662.2 and PBrOrevcccccccccccccccccccccccceccscocecece 1

GCR 1963, 663699 1

e rds bree. 262 e.. . N

e * » 399 US 752; 89 Sct

34; 685 esd eee passim

42; 66 LEd24 1 eee. . . . . . . „eee eee ee ee eee eee ee passim

v Bender, 573 F24 1329 (CA 5

eeeeee eee eee ee ee ee eee eee eee eee eee eeeeee ee eee eee eeeeeee a

v Rasool, 657 a 582, 587 (CA

* „„ eee eee ee ee eee eee ee ee eee eee eeeeeeeee a

Gustafson » Florida, 414 US 260; 94 SCt 488; 38 LE424 456 (1973) 6

Bow york v Relves. 459 vs. 454) 101 S Ct 2660; 69 L

1) ——P ³Uk3ũvw4q „„ „„ „6 passim

Penveg ois — Tee 434 US

? sct ? 54 LEd24 331 (Ao. . . . . 0 „0e %% eee 6,7

People v Butler. 413 Rich 377; 319 e

—— k½ õu%õ²S «nhßũn „„ „„ „ „„ R

bung,; , 399 Mich 636, 250 ½ 491, 492

977 eeeeeee eee ee eee eee eee eee eee eee e ee ee eee ee eeeeeeee eee ee 1

People v Miller, 414 Mich onan . eee. . . . „ooo 1

Peace ewalt, 16 Mich App

318) , ee. . . . . „ „oe eee eee eee e 5

Robbins v California, 453

Sct 2641; 69 Lade 744, 753 1801 6

arp oat v United st „ 660 F24 967 (CA

vacat — 102 set 2951, 73 Lad 1345

CRUE 00ccccccsece] ce bbbeeeeeeesecocoocoosososoeoeoosoecoesce 2

United States v Brown, 671 2d 585 (CADC BGBR Dc . .. „oe eee 9

Grates v Cleary. 656 rd 1302 (CA 9 1981)

—— di 102 S Ct 2919; 73 2 324 (1982)..... 9

United States v Enriquez, 675 rz 9B (CA 5 197B)wseseceesereeee 9

United wee izarry,

* D 9

ma U 9.10

unites states’ » 14

? 5e 4% 56 LE424 427 „ TTrTTT ee €

caate; Siscee v Boas. 456 US __s 102 SCt 2157; 72 LEA 24

1 D. eeeeeeeeeeeeeeeeeee eee eee eee eee eee e 5.9

United states ¥ Russell, 670 za 323 (CADC 1982)

cert i den. t 102 SCt 2909; 73 LEG24 1317 (1982) 9

cited sintee © — 86 662 va —_ (CA 9,

as wee wee pe Sas SS

— . . eee Freed ree Devin. Raatieesaeepig

Vance v United States, 676 Pad 183 (CA 5, 19862 0

„ Vol 2. Sec 7.1,

main d 665656 „„„„„„„„ 8,10

61800%/ůꝶʒ 1

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1962

PEOPLE OF THE STATE OF MICHIGAN,

Petitoner,

Respondent

BRIEF FOR RESPONDENT IN OPPOSITION

Respondent James Miller respectfully requests this Honorable

Court to deny the petition for writ of certiorari.

Review is sought for the opinion of October 7, 1961 by the

Michigan Court of Appeals (Petition Appx A pp 12-20). The opin-

ion is reported as follows: People v James Miller, 110 Mich App

270; 312 wa 225 (1981) lv Genied 413 Mich 890; ae

(1982) (Petition Appx d pp 25-26); reconsideration denied 414

Mich ? 14902).

Fae

ie

182

AN

8

g

MCL 750.227: MSA 28. 424 provides:

“A person who shall carry « dagger, dirk,

stiletto, or other dangerous weapon except

hunting knives adapted and carried as such,

concealed on or about his person, or whether

concealed or otherwise in any vehicle opera-

ted or occupied by him, except in his

G@welling nouse or place of business or on

other land possessed by him; and « person who

shall carry a pistol concealed on or about

bis person, or, whether concealed or

otherwise, in a vehicle operated or occupied

by him, except in his Gwelling house or place

ef business or on other land possessed by

him, without a license to carry the pistol as

of a felony, punishable by imprisonment in

the state prison for not more than 5 years,

or by fine or not more than $2,500.00.

Amended by F. A. 1973, Ho. 206, Sec. 1, Eff.

March 29, 1974."

MCL. 7403(2)(A)(iii), MBA 14.15 (74032606111) pro-

vides:

to:

“Sec. 7403. (1) A person shall not knowingly

or —y- 11 AY —-- @ controlled sub-

stance unless substance was obtained dir-

ectly from, or pursuant to, « valid prescrip-

tion or order of a practioner while acting in

the course of the practitioner's profesional

practice, or except as otherwise authorized

by thie article.

(2) A person who violates this section as

(a) A controlled substance classified in

schedule 1 or 2 which is either a narco-

tic or described in section

7214(a)(iv),and:

11

(444) Which is in an amount of 50 grams or

more, but less than 225 grams, of any mixture

containing that substance is guilty of a

felony and shall be either isoned for not

less than 10 years nor more 20 years or

placed on probation for life.

COUNTERSTATENEST OF THE FACTS

Respondent rejects Petitioner's Statement of Facts (Petition

pp 5-6) and accepts the factual recitation found in the opinion

below, People v Miller, 110 Mich App 270, 272-274, 277; 312 ae

225, 226-227, 228, as a more complete end accurate statemert.

The original charges were two: Count I, carrying a pistol

in a motor vehicle, MCL 750.227; MSA 28.424; and Count II, pos-

session of a controlled substance, a narcotic drug weighing less

than 50 grams,i.c., «0148 grams of power containing heroin. MCL

333.7403(2)(a) (iii): MBA 14.15(74003)(2)(a)(iii). Only the evi-

Gence relating to Count II has been ordered suppressed. The pow-

der was contained in two coin envelopes which were inside a clo-

sed tippered interior of « briefcase. The briefcase was on the

front seat of a parked and closed automobile. At the time of the

stop and arrest no one was inside the sutomobile. The automobile

had stopped on its own and parked at the curbside and the two

occupants had gotten out when the police car pulled to the rear

and perked. Two officers got out of the police car and one

hailed Respondent Miller, who was not an occupant of the automo

bile, but a pedestrian.

Respondent reserves the right to refer to or quote the

record below. Pertinent matters from the record include the

following:

(ea) THE INITIAL SIGHTING OF THE BRIEFCASE

OCCURRED WHILE RESPONDENT WAS A PEDESTRIAN.

When Officer John Neuse first saw the briefcase in question

111

it was being carried by Respondent Miller nowhere near the car.

Miller was observed coming from between two houses on the west

side of Appoline Street (R 4,6) (R refers to the transcript of

the March 20, 1980 preliminary examination). Officer Reuse then

observed Miller carrying the briefcase to a 1970 Oldsmobile which

he entered on the passenger side (R 5, 6-7).

(b) THE SECOND SIGHTING OF THE BRIEFCASE OCCURRED

WHILE RESPONDENT WAS A PEDESTRIAN.

Officer Reuse later observed Miller leave the parked

Oldemobile carrying the briefcase. Both the driver of the

Oldsmobile and Miller got out. The following quotations are from

Officer Reuse's testimony. “As they turned around to shut the

doors Mr. Miller observed us" [there was another officer with

Reuse) “out of the car. . .” (R 7). After Miller looked in the

éirection of the two officers he “took the briefcase that he had

in his hand and threw it onto the front seat of the car and slam-

med the car door and turned and started walking away” (R 8).

“After he threw the briefcase in the car he walked in 8 westerly

Girection and the driver slammed his door and looking in our dir-

ection, walked in an easterly direction.” (R 9).

(c) THE STOP, THE THIRD SIGHTING OF THE BRIEFCASE

AND THE ARREST OCCURRED WHILE RESPONDENT WAS

A PEDESTRIAN.

“We stopped them both to investigate the possible traffic

violation. . . and the possibility of contraband froma Bé& E

being in the car (R 9). “We asked both the people that were in

the car for identification. As Mr. Miller was digging for iden-

tification, with the aid of my flashlight I shined the light in

the vehicle, the windows were rolled up, through the windows and

I observed in a side pouch of a brown leather briefcase «a

nickel-plated automatic” (R 9). Up until that time neither of

the two pedestrians were under arrest (R 9). Both the driver and

Miller were pleceé under arrest for carrying a concealed weapon

in a motor vehicle (R 10).

iv

(4) THE PLAIN VIEW OF THE WEAPON AS THE BASIS FOR

THE ARREST

Officer Reuse and his partner had no specific information

about a breaking and entering having in fact occurred and Reuse

saw no violation of the law by Miller aside from the weapon (R

16). Reuse was standing next to the passenger door of the

Oldsmobile when he called to Miller to halt. Miller returned to

where Reuse stood (R 19-20). The driver also halted and returned

to the other officer who was east of the Oldsmobile (R 26). The

briefcase was on the front seat laying against the seat back.

The revolver was in an open pouch in clear view (R 12). At the

time Officer Reuse saw the briefcase in the car he saw the

revolver (R 17, 23). The pouch opened on the side of the

briefcase (R 18).

(e) THE SEARCH OF THE INTERIOR CLOSED (ZIPPERED)

COMPARTMENT OF THE BRIEFCASE OCCURRED WHILE

RESPONDENT WAS HANDCUFFED AND SEATED IN THE

BACKSEAT OF THE CAR.

Both prisoners were conveyed to the precinct along with the

briefcase and revolver (R 10). Miller did not give Reuse permis-

sion to take the briefcase; he was in the scout car and handcuf-

fed at the time Reuse entered the Oldsmobile to remove the

briefcase (R 24). Officer Reuse testified that “we confiscated

the briefcase along with the weapon 4s evidence in a possible

criminal case, as a custodial search which would be performed on

any items confiscated relating to 4 specific crime.” (R 26).

fhe search of the interior of the closed (zippered) briefcase

occurred on the scene and produced two manila coin envelopes

which contained, allegedly, a substance composed in part of ber-

oin (R 10).

(t) THE EVIDENCE SUPPRESSED WAS THE POWDER FOUND

INSIDE THE CLOSED INTERIOR OF THE BRIEFCASE.

The trial in this case is pending. After the revolver and

the alleged narcotics were suppressed by the trial court the

prosecution appealed. The Michigan Court of Appeals upheld only

the suppression of the nurcotics. The Michigan Supreme Court

Geclined to review that ruling.

vi

REASONS FOR DENYING THE WRIT

I. THE PETITION IS UNTIMELY

On April 30, 1982, the Michigan Supreme Court issued an

order which is a final judgment. People v Miller, 413 Mich 890;

__MW24___ (1982). (Petition Appx D, p.25). On August 24, 1982,

one hundred sixteen days later, the petition for writ of certio-

rari was filed. In the interim, Petitioner filed an untimely

application for rehearing in the Michigan Supreme Court (on or

about June 15, 1982). On June 16, 1982 the application for

rehearing was denied as untimely. People v Miller, 414 Mich

? NWw24 (1962). (Petition Appx E p 27). (See General Court

Rules of Michigan, GCR 1963 862.2 and 864.4).

Under Michigan law, orders by the Supreme Court of Michigan

other than those by opinion become effective on the date of

entry. GCR 1963, 866.4. Jurisdiction in the Michigan Supreme

Court terminates upon the entry of a final order unless a timely

motion for reconsideration is filed. People v George, 399 Mich

638, 640; 250 wd 491, 492 (1977). The time for filing the

petition for writ of certiorari began to run from April 30, 1982.

American Railway Express Co. v Levee, 263 US 19, 20-21; 44 SCt

ll; 68 Lad 140 (1923).

The petition for writ of certiorari is untimely because it

was due sixty days after April 30, 1982 and was filed in almost

twice as many Gays. Rule 20.1, Revised Rules of the Supreme

Court of the United States (1980).

Ho motion to extend the time for filing of the writ has been

filed to date. Rule 29.2. Even had such motion been filed and

granted, the thirty day extension permitted under Rule 20.1 has

still been exceeded.

While waiver of the untimely filing of the petition is dis-

cretionary, in an interlocutory appeal such waiver ought to be

considered, if at all, only after a showing of good cause has

been made on an appropriate motion by Petitioner. Respondent's

speedy trial right, US Const Am 6, 14, is encroached upon by the

untimely acts of Petitioner. Respondent objects to the untimely

filing of the petition for writ of certiorari and requests that

this Honorable Court deny the petition.

IX. WO SUBSTANTIAL FEDERAL QUESTION IS INVOLVED

IN THIS CASE.

5 THE MICHIGAN COURT OF APPEALS

CORRECTLY HELD NEW YORK V BELTON

INAPPLICABLE WHERE RESPONDENT WAS A

PEDESTRIAN ARRESTED NEAR THE CAR HE

HAD EXITED RECENTLY, BUT BEFORE ANY

POLICE CONTACT OCCURRED, AND WHERE

THE SEARCH WAS INTO THE INTERIOR OF

HIS BRIEFCASE WHICH HE LEFT INSIDE

THE CLOSED CAR.

1. INTRODUCTION

The Michigan Court of Appeals correctly applied the Fourth

Amendment of the United States Constitution, US Const AM 4,14,

and the decisional law of this Honorable Court, to the facts of

this case. There is no difficulty posed by this case which

requires review by the Court. The Court of Appeals has not

demonstrated any flawed interpretation or understanding of the

rules governing the search incident to arrest exception to the

Warrent Clause of the Fourth Amendment. The application in this

case of search-incident law is entirely consistent with the opin-

ions of this Honorable Court.

Petitioner seeks a dramatically expanded application of the

rule of New York v Belton, 453 US 454; 101 S Ct 2860; 69 L Ed 24

768 (1981) which the Michigan Court of Appeals considered end

rejected as obviously lac ing in merit and thus deserving summary

Gisavowal by eloquent silence. In short, the Court of Appeals

deemed the search-incident rule of Belton as not being applicable

at all to the facts of this case. Moreover, the Court of Appeals

deemed New York v Belton, supra, distinguishable from this case,

which it is. This case is not a Belton-type of case; it does not

fit within the paridigm fact situation of Belton. Petitioner is

simply unhappy with the result below. Petitioner seeks an

extreme and unwarranted extension of New York v Belton, which the

Michigan Court of Appeals adequately and carefully considered,

and consistently with Belton itself, rejected as nonmeritorious.

Belton is inapposite to the present facts.

This care is not governed at all by the rule of New York v

Belton, supra. Belton was designed for cases where a police

officer removes the occupants from their vehicle. Respondent,

however, was a pedestrian who was returned by police order to the

area of the vehicle he had previously exited. Respondent did not

exit his vehicle on a police directive. There was no occupant of

the vehicle who posed a danger to the officer involved. The offi-

cer removed no one from the vehicle. The arrest of this pedes-

trian occurred near the vehicle because the officer caused it to

occur there. Respondent was handcuffed and seated in the rear of

the police car when the search of his briefcase occurred. This

case is not a Belton case. (See II, B. infra).

Moreover, the Court of Appeals properly and correctly

declined to apply the fixed-rule of Belton on an ad hoc basis to

a case clearly outside the paradigm fact situation described by

Belton itself. The justification for a “pright-line” or “stand-

ardized” rule lies in the existence of the paradigm situation to

which that rule always applies. Applications of a fixed-rule on

a case-by-case basis outside of the paradigm fact situation des-

troys the concept of 4 standardized rule. The Michigan Court of

Appeals merely recognized that the Belton paradigm is missing

from this factual setting and that there was no justification for

applying the narrow and particular fixed rule of Belton here. It

would have been inappropriate to have done otherwise. The opin-

ion below declined to extend the rule of Belton, did not destroy

the concept of standardization, and reached exactly the kind of

result Belton calls for when its paradigm fact situation is not

present. There is no substantial federal question posed here.

The writ should be denied.

2 THE SOLE QUESTION IS

WHETHER THE BRIGHT-LINE

RULE OF YORK V BELTON

APPLIES ACTUAL

SETTING.

4.

Since the revolver seized from the exterior side-pocket of

the briefcase has not been suppressed it is relevant here only as

evidence of the alleged violation of MCL 750.227; MSA 28.4241

The search of the briefcase's interior is all that is involved

here. That search produced the two coin envelopes and contents.

Petitioner does not argue, and has never argued below, that there

was probable cause to search the briefcase's interior. The

record will not support, and contradicts, any view that Officer

Reuse searched the interior of the briefcase based on his belief

or understanding of the probabilities that he would find narco-

tics or anything else inside (R 26). This case is not a

search-probable cause case and United States v Ross, 456 US __;

102 SCt 2157; 72 LEG 24 572 (1982) is not controlling.

Also not before the Court is the correctness of the decision

below, i.e., that an inventory rationale does not authorize the

search of the briefcase's interior. Vor could it seriously be

argued that plain view somehow supported the interior search of

the closed briefcase. The record further belies any consent by

Miller as justification for the search in question (R 24).

The sole question presented is whether the search incident

to arrest rule of New York v Belton, supra, applies to these

1 In Michigan a pedestrian who carries a somewhat concealed

revolver in his pocket may be arrested and tried for

carrying a concealed weapon. MCL 750.227: MSA 28.424;

Fecrls v Stirewalt, 16 Mich App 343;167_NW2d 779 (1969).

@ same statute prohibits carrying a eapon in a motor

vehicle, being an operator or occupant thereof and partici-

pating in the act of carrying. le v Butler, 413 Mich

377; 319 zd 540 (1982). Thos, isthe case at bar Officer

Reuse could have arrested Miller for being a pedestrian

carrying the revolver partially concealed in the briefcase

prior to entering the Oldsmobile. While the officer's claim

that he arrested Miller for occupying a motor vehicle and

carrying the revolver therein is not unfounded, that claim

does permit a certain measure of police manipulation of the

Fourth Amendment. If Miller had been stopped carrying the

briefcase on the street with the revolver exposed to view in

the side pouch the officer should not be allowed to then

search the Oldsmobile's interior under a search-incident

theory merely by virtue of manipulating the label of the

charge.

facts. The general search incident to arrest rule, or its scope,

under Chimel v California, 395 US 752; 89 SCt 2034; 23 LEd24 685

(1969) or United States v Robinson, 414 US 218; 94 SCt 467; 38

Lad 427 (1973) is not at issue in this case. Respondent was

never stopped in his car and ordered to alight so that the rules

ot Pennsylvania » Mimms, 434 US 106; 96 SCt 330; 54 82d 331

(1977) and Gustafson v Florida, 414 US 260; 94 SCt 488; 38 LEd24

456 (1973) re not involved in this case.

Solely involved here is the stop and arrest of a pedestrian

on the street who previously had deposited his briefcase into «4

nearby container. That container might have been a trash can in

an alley, a neighbor's fenced yard, a child's red wagon or even «a

stranger's car.2 In this case that container happened to be «

car in which he had recently been an occupant. While a Chime)

search-incident analysis may be useful in determining the search

power of the officer, the rule of New York Belton is not. The

question presented is whether Belton applies at all.

B. RESPONDENT WAS A PEDESTRIAN; HE WAS

NOT REMOVED FROM THE CAR THUS, THIS

CASE IS DISTINGUISHABLE FROM NEW

YORK V BELTOS.

As Mr. Justice Powell wrote in Robbins v California, 453 US

420, 431; 101 set 2641; 69 LEG24 744, 753 (1981): “Belton pre-

sents the volitile and fluid situation of an encounter between an

arresting officer and a suspect apprehended on the public

highway” (Powell J., concurring, Robbins, supra, 431). By

2 Had Miller tossed the briefcase into s car he had not been

seen to occupy or operate the justification for seizing the

revolver would be a plain view rationale, not «4

search-incident rationale. The same reasoning governs the

interior search of the briefcase. That Miller deposited the

briefcase into the Oldsmobile signifys a greater expectation

of privacy then had he abandoned it. Miller's constitu-

tional protections should therefore be correspondingly

greater because he placed the briefcase in the Oldsmobile

than if he had not placed it there.

contrast, there was no stop of a moving vehicle in this cause and

the officers did not direct the occupants of the automobile to

get out and stand aside. Rather, just as in Colorado v

Bannister, 449 US 1; 101 SCt 42; 66 LEG24 1 (1980), the revolver

was seized on es plain view rationale. Unless the rule of New

York v Belton, supra, is expande’ it cannot justify either the

seizure of the revolver or the interior search of the briefcase.

The Belton rule applies when a police officer reasonably directs

the occupant(s) of an automobile to get out and stand aside.

Having done so the officer, who then arrests the occupant(s),

retains the constitutional authority to search the passenger con-

partment and containers therein. Although in Belton probable

cause to arrest the occupants preexisted the order to alight the

automobile, Belton is also applicable even when the officer

develops probable cause to arrest after making the order to

alight. The rule is designed to afford protection to the officer

from dangerous weapons which the occupant(s) - qua occupants -

may have access to if they remained in the automobile.

Respondent notes that Belton is not limited to the narrower

class of cases in which probable cause to arrest preexists the

order to alight. If Belton were to be so limited the present

case would be highly distinguishable. But this case is also dis-

tinguishable from Belton even given Delton's application to cases

where an officer orders the occupant(s) to alight, and probable

cause arises after such order. The touchstone of Belton is the

combination of probable cause to arrest and an order to alight

the automobile.? wo such nexus between Respondent Miller and the

Oldemobile exists here. Miller was simply « pedestrian when the

officers made contact with hin.

An officer may have reason to direct the occupant(s) of an

3 It does not matter whether the automobile was moving and

— or was parked, so long as the officer orders the

to

automobile to alight, Pennsylvania v Mimms, supra, and officers

2 usually do order people out of cars when they believe the occu-

pants may be armed and dangerous. The Belton rule simply per-

mits a search of the recently occupied automobile when probable

cause to arrest, and the arrest occur contemporaneously with the

order to alight. See Government of the Canal Zone v Sender,

573 P24 1329 (CA 5 1978). In Belton itself the lone officer

ordered the four occupants of the automobile to alight, then he

arrested them and searched the automobile passenger compartment

and containers found therein. This Court observed: “We granted

certiorari to consider the constitutionally permissible scope of

@ search in circumstances such as these.” Belton, supra, 453 US

457 (emphasis supplied).

Where an officer encounters a pedestrian on the street, even

one who has recently left a nearby automobile, but the officer

has not removed that person from the automobile, there is not the

same need for protecting the officer and thus there is no justi-

fication for the use of the Belton rule. The balance between the

pedestrian's expectation of privacy in the automobile and its

contents and the social need to protect police officers from

undue hazards in carrying out their responsibilities is properly

observed by use of the general search incident rules found in

Chimel-Robinson, supra.

Respondent has found no federal circuit case since Belton

which involves an automobile but which does not involve an order

to alight. Certainly none of these subsequent cases apply Belton

to a pedestrian simply because that pedestrian wes an occupant of

an automobile just before he was encountered on the street by

police.5 (see also cases cited in Lafave, A Treatise on the

— Questions about mat is “contemporaneous” to an arrest are

endemic to search-incident cases. What is significant in

thie case is the nexus between the person arrested and the

intrusion into the automobile.

5 The following cases decided since Ere zork Beiten fac-

tually involve occupants of « es have

(Pootnote Continued on Next Page)

) —

Fourth Amendment, Vol 2, Sec 7.1, main vol. footnote 14, p 500.

The Belton rule is justifiable given some nexus between the

automobile, the occupant and the officer's intrusion. That nexus

is provided either by requiring (a) preexisting probable cause to

arrest followed by an order to alight, or (b) by requiring an

order to alight and contemporaneous, albeit subsequently arising,

probable cause to arrest (and an arrest). Under either view the

present case is distinguishable. Respondent Miller was a pedes-

trian. The officer did not order Miller to alight the

Oldsmobile.

The mere fact of an arrest of a pedestrian outside an

eutomobile is an insufficient nexus to justify the

protection-of-the-officer premise of the Belton rule. An illus-

trative case is United States v McGlynn, 671 za 1140, 1144 (CA 8

1962). There a suspect “S" was sitting in a parked Lincoln

Continental. He was removed from the Lincoln by officers who

then arrested him. The officers had probable cause to arrest “Ss”

prior to removing him from his automobile. The Eighth Circuit

upheld the search of the Lincoln's interior on a Belton

search-incident theory. McGlynn drove up in a Mazda, parked, and

walked over to the arresting officers who arrested him on prob-

able cause. McGlynn had been the sole occupant of the Mazda.

The police properly sought a warrant to search the Mazda. Under

(Pootnote Continued From Previous Page)

removed therefrom by police order. United States v Cleary,

656 Pad 1302, 1305 (CA 9 1961) vace 107 5 .

?

2919; 73 LE424 324 (1962); ° Th Islands v

, 657 F24 582, 587 (CA ¥ United

660 F24 967, 979 (CA 4. 1981). vaca = gee

2951; 73 2d 1345 (1982); united Eee v .

662 F24 1325, 1329 (CA 9, 1981) cert ;

102 SCt 1775; 72 ad 178 (1962); United Stat .

670 F24 323, 325 (CADC 1982) 1 te

SCt 2909; 73 az 1317 (1982); 0 o'er

1140. 1144 (CA 6 1982); t iquez, 675 F2d

98 (CA 5 1978); v Un 3 States, 83, 189-190

(CA 5, 1962). The vacated cases were ordered to be

reconsidered in light of United States v Ross, supra.

United States v Ross, supra, the police could have searched the

Mazda if they had search-probable cause. Under Colorado v

Bannister, supra, the police could enter the Mazda to seize items

in plain view. But no search-incident theory, standing alone,

would have supported a warrantless search of the Mazda. Although

the Eighth Circuit was not called upon to resolve the legality of

@ warrantless search of the Mazda, the facts of McGlynn i) lus-

trate that the police officers could and did use the warrant sys-

tem to authorize their search and were not endangered thereby.

McGlynn's facts illustrate the appropriate limits of the Belton

rule.

The Michigan Court of Appeals did not decide this case

inconsistently with New York v Belton, supra, because the factual

settings of the two cases are significantly different; this case

is not a Belton case. Belton is distinguishable; it does not

apply and the ruling below need not be reviewed by this Honorable

Court.

C. THE MICHIGAN COURT OF APPEALS

og DECLINED TO APPLY, ON AN

AD HOC, BASIS THE BRIGHTLINE RULE

OF NEW YORK V BELTON TO A DIFFERENT

KIND OF FACTUAL SETTING THAN THAT

FOR WHICH THE RULE WAS DESIGNED.

[TI. 1 do not read New York v

Belton [citation omitted] as opting for

cial flexibility in determining on «4

case to case basis what is reasonable.”

Aldrich, J. (concurring) United States v

Irizarry, 673 724 554, S62 (CA Y 1982)

If the point of New York v Belton, supra, is to provide a

standardized procedure then its usefulness is in the assertion

that whenever a police officer is confronted by the

readily-perceivable fact A then action B is permitted. See

LaFave, supra, vol 2, Sec. 7.1, p 135 (1982 pocket part). The

“readily-perceivable fact“ of Belton is, the removal of the occu-

pant of the automobile coupled with contemporaneously existing

probable cause, not the mere fact of recent occupancy. The mere

10.

fact of recent occupancy of en automobile voluntarily and legally

parked at a curbside is an insufficient nexus to bring the

instant case within the rule of New York v Belton, supra. The

Michigan Court of Appeals could not, except by an inappropriate

case-by-case application of Belton, extend the standardized rule

to a new and different situation. To have done so would renew

the very open-endedness and problematical nature of the scope of

the officer's authority to search that this Court sought to avoid

by its adoption of a “bright-line” rule in Belton. Consider that

if Petitioner's view of Belton were adopted the limits of Belton

would blur so that neither police officers, citizens, nor courts

could be sure of it true application. The following hypothetical

illustrates that lack of discernable limits. Suppose a subject,

X., walks over to and enters a car full of people parked in a

parking space in a lot next to a city park. X visite for a few

minutes and then leaves that car and goes to the next immediately

adjacent space to a second car and repeats his visit.

Subsequently he visits an additional three cars, each parked,

seriatim, in adjoining spaces. Next, X walks away from the last

car only to be stopped by « police officer who spots & puffing on

@ marijuana cigarette. The officer sees a pistol in X's

waistband and arrests and handcuffs X before placing him in the 0

back seat of a nearby patrol car. May the officer search each

and every car that X has recently been a former occupant of,

based upon a search- incident rationale? What if K produces a

registration to his own car parked 100 yards across the lot and

visible to the officer from the patrol car. X states: “I just

Grove my car over here to see my friends.” Does the

search-incident rationale support a search of X's own car? If

Belton requires nothing more than recent, former occupancy of a

vehicle prior to an arrest then the search-incident rationale

permits such searches even if Chimel-Robinson, supra, clearly do

not.

11.

Such a result is anomalous. The Michigan Court of Appeals

did not apply Belton to uphold the search of the Oldsmobile and

Miller's briefcase because Miller was sot removed from his car by

the police. Rather, he was a pedestrian. The Court could not

apply Belton to the present facts without extending it to a new

and different situation. It would be wrong for a police officer,

or @ court, to apply a “bright-line” rule to a different sit-

uation altogether by use of interpretation and case-by-case rea-

soning.

The facts of Belton itself show that it is the removal of

the occupants of a car (for the officer's protection) and the

subsequent custodial arrest outside the car which constitute the

paradigm, or the readily observable fact, justifying the

standarized rule. That rule permitted, in Belton, a search inci-

dent to arrest of the formerly occupied passenger compartment and

containers found therein. The Court in Belton did not state that

@ search of an automobile is always justified upon the arrest of

the “former occupant”. Rather, the Court carefully used the term

“the occupant", e.g., “when the occupant of an automobile is sub-

jected to a lawful custodial arrest, does the constitutionally

permissible scope of a search incident to his arrest include the

passenger compartment of the automobile in which he was riding?”

Belton, supra , 453 US 455 (Emphasis supplied). The holding also

adverts to “the occupant”:

“[A). . . we hold that when «a policeman has

made a lawful custodial arrest of

occupants of an automobile, he may, as a con-

temporaneous incident of that arrest, search

the passenger compartment of that automo-

bile". ton, supra, 453 US 460 (Emphasis

supplied).

The Court did refer, in Belton to the concept of “former

occupancy” by referring to the fact that: “the jacket was loca-

ted inside the passenger compartment of the car in which the

respondent had been a passenger just before he was arrested”

Belton, supra, 453 US 462. However, it is clear that in

12.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1962

Ho. 82-333

STATE OF MICHIGAN,

Petitioner,

vs.

JAMES MILLER,

Respondent.

STATE OF MICHIGAN)

) ss.

COUNTY OF WAYNE )

VIRGINIA M. MELOSKY, being first duly sworn, deposes and

says that on NOVEMBER 23, 1982, she mailed one copy of:

Appearance Form

Motion For Leave to Proceed in FPorma Pauperis

Affidavit

Respondent's Brief in Opposition

Statement of Mailing

TO: Wayne County Prosecutor

Frank Murphy Hall of Justice

1441 St. Antoine - Rm 1200

Detroit, Michigan 48226

Subscribed and sworn to before me

MOVEMER 23, 1982

S, Wayne >

My commission expires: COLL ZA

referring to the facts of Belton, the Court was aware that

Officer Nicot had initially directed the men to get out of the

car. Belton, supra, 453 US 456. Thus, the Court did not mean to

expand its holding beyond the particular context of Belton's

facts and to state a rule applicable to every case where a pedes-

trian was arrested and had been, just before, the occupant of a

car. “Our holding today does no more than determine the meaning

of tel principles in this particular and problematic con-

tent. It in no way alters the fundamental principles established

in the Chimel case regarding the basic scope of searches incident

to lawful custodial arrests.” Belton, supra, 453 US 460,

footnote 3.

Belton did not hold that even where a person has just left

his parked car on his own volition and becomes a pedestrian that

an ensuing custodial arrest justifies a “search- incident” as to

the car. A lone driver who is arrested while depositing coins in

a parking meter would, under such a view, suffer a search of his

locked and legally parked car and all containers in the interior.

Belton does not authorize the search of Miller's car and the sei-

ture of the gun or briefcase. The seizure of the gun in this case

was done on the basis of plain view. Colorado v Bannister,

supra. Petitioner has not argued and has never argued probable

cause as a basis justifying the seizure of the briefcase and its

immediate search. Petitioner's search-incident argument must

fail as an unusually broad interpretation of Belton, carrying the

rule of that case well beyond its factual paradigm setting and

rationale. Petitioner's expanded interpretation of Belton des-

troys the standarization of the rule sought by the Court and reo-

pens the scope of s¢ach-incident doctrine to the variables of a

case-by-case analysis. The Michigan Court of Appeals correctly

eschewed that approach and properly declined to apply Belton's

rule to a new and different factual context. There is no merit

to Petitioner's claim. The petition for writ of certiorari ought

to be denied.

CONCLUSION

For all the foregoing reasons Respondent respectfully

requests this Honorable Court to deny the Petition for Writ of

Certiorari.

STATE APPELLATE DEFENDER OFFICE

BY: |.

„ le e.

KIM ROBERT FAWCETT

Assistant Defender

Third Floor, Worth Tower

1200 Sixth Avenue

Detroit, MI 48226

(313) 256-2814

Dated: November 23, 1982

14.

IN THE

* SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1962

No. 82-333

STATE OF MICHIGAN,

Petitioner,

vse.

JAMES MILLER,

Respondent.

STATEMENT AS TO MAILING

I, JAMES R. NEUHARD, Defender, of the STATE APPELLATE

DEFENDER OFFICE hereby state, pursuant to Rule 28.2,that the

following papers pertaining to the above captioned cause were

deposited at the United States Post Office, General Post

Office, 1401 Fort Street, Detroit, Michigan 48226, on

November 23, 1982, within the time for filing said

papers, and that the same were properly addressed to the Clerk

of the United States Supreme Court, and that first class

postage was prepared.

The papers #0 mailed were:

Appearance Form

Motion For Leave to Proceed in Forma Pauperis

Affidavit

Respondent's Brief in Opposition

Statement of Mailing

Proof of Service

Assistant Defender

Third Floor, North Thower

1200 Sixth Avenue

Detroit, MI 48226

( -

Dated: November 23, 1982 313) 256-2814

IN THE 10 88 1982

*

* SUPREME COURT OF THE UNITED STATES ALEXANDER L. STEVAS,

—

OCTOBER TERM, 1982

No. 82-333

STATE OF MICHIGAN,

Petitioner,

ve.

JAMES MILLER,

Respondent.

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

AFPIDAVIT

PROOF OF SERVICE

STATE APPELLATE DEFENDER OFFICE

JAMES R. NEUHARD

Defender

KIM ROBERT FAWCETT

Assistant Defender

Third Floor,North Tower

1200 Sixth Avenue

Detroit, Michigan 48226

(313) 256-2614

Counsel for Respondent

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1982

—ͤ—I—)ß e.

No. 82-333

PEOPLE OF THE STATE OF MICHIGAN,

Petitoner,

vs

JAMES MILLER,

Respondent

APPEARANCE

The Clerk will nter my appearance as Counsel for James

Miller, who IN THIS COURT is RESPONDENT.

I certify that I am a member of the Bar of the Supreme Court

of the United States:

STATE APPELLATE DEFAENDER OFFICE

BY

fender

Ard Floor, North Tower

200 Sixth Avenue

Detroit, Michigan 48226

(313) 256-2614

Other Counsel Who Should Be Informed:

KIM ROBERT PAWCETT

Assistant Defender

State Appellate Defender Office

Third Floor North Tower

1200 Sixth Avenue

Detroit, Michigan 48226

Dated: Wovember 23, 1982

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

No. 82-333

STATE OF MICHIGAN,

Petitioner,

ve.

JAMES MILLER,

Respondent.

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

MOTION FOR LEAVE eS

NOW COMES JAMES MILLER, RESPONDENT in the above captioned

cause, by his attorneys, the State Appellate Defender Office, by

KIM ROBERT FAWCETT, and requests this Honorable Court to grant

leave to proceed in forma pauperis pursuant to Rule 46. The

Respondent's affidavit in support of this motion is attached

hereto.

STATE APPELLATE DEFENDER OFFICE

BY:

ender

KIM ROBERT F.

Assistant Defender

Third Floor, North Thower

1200 Sixth Avenue

Detroit, MI 48226

(313) 256-2614

Dated: WSovember 23, 1982

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

THE PEOPLE OF THE STATE OF MICHIGAN

Petitioner

v

JAMES MILLER,

Respondent.

AFFIDAVIT TO ACCOMPANY MOTION

FOR LEAVE TO PROCEED IN FORMA PAUPER

STATE OF MICHIGAN )

) ss

COUNTY OF MACOMB )

I, JAMES MILLER being first duly sworn according to law,

depose and say in support of my motion for leave to proceed in

forum pauperis, without being required to prepay costs of fees:

1 I am the Respondent in the above captioned cause; I am

a citizen of the United States of America.

2. Because of my poverty I am unable to psy the costs of

Gefending myself in this cause in this Honorable Court; I am una-

‘ ble to give security for the same.

3. 1 further swear that the responses I have made to the

questions and instructions below relating to my ability to pay

the cost of responding to the petition for writ of certiorari are

true:

A. I am presently on medical leave from my employer,

the Chrysler Corporation.

1.

I last worked in early August 1962; my income was

about $250.00 per week. I am currently hospitali-

zed at Glen Eden Psychiatric Hospital in Warren,

Michigan and my insurance is paying the cost of

hospitalization.

I receive $200.00 per week income in the form of

medical benefits. I support my wife and my three

children, ages, 10, 9, and 6 years old. My family

rents a residence at 13522 Gallagher, Detroit,

Michigan. Our rent is $200 per month.

I have received no income in the last twelve

months from any business, profession or other form

of self employment, or in the form of rent

payments, divide.ds, or other sources. I have no

savings or checking accounts or accumulated cash.

My wife does not work. I own no real estate,

stocks, bonds or notes.

I retained attorney Marshall C. Hill, Esquire to

represent me in the trial court proceedings in

this case. Subsequently I signed an affidvit of

indigency on February 10, 1982 in order to obtain

a Court appointment for my lewyer as I was no lon-

ger able to pay his fee.

Further, I say not.

i and worn to before me

this 2 day of November, 1982.

My commission res: