Petition — Finch v. Oklahoma

ALEXANOER L STEVA

CLERK

*

THE STATE OF OKLAHOMA,

Respondent.

On Petition for a Writ of Certiorari to the

Court of Criminal Appeals of the

State of Oklahoma

PETITION FOR WRIT OF CERTIORARI

BILL SETTLE

SETTLE & LANDRUM

110 N. 6th St.

P.O. Box 1368

Muskogee, Oklahoma 74401

(918) 683-2866

Attorney for Petitioners

August, 1982

8888 2 : e

The District Attorney for Muskogee County, State of

Oklahoma, brought criminal charges against Eugene Finch

and Vesta Mae Finch for knowingly concealing stolen prop-

erty. The warrantless arrest of Eugene Finch was accom-

plished by enticing him to the doorway of his home before

arresting him, and the search and seizure of automobiles in

the driveway of the home was made without a search war-

rant, although ample time to sercure a warrant was avail-

able, and no exigent circumstances existed.

The questions thereby arising are:

1. Whether the action of the police in asking Eugene

Finch to step outside for a talk and then arresting him

without warrant, violated his Constitutional rights under

the Due Process Clause of the Fourteenth Amendment.

2. Whether the action of the police in seizing and

searching the immobile vehicles in the Petitioners’ drive-

way without a search warrant, although sufficient time

existed to obtain a warrant, and the cfficers searching and

seizing even discussed at length whether a warrant was

necessary, violated the Petitioners’ Fourth Amendment

rights against unreasonable search and seizure.

3. Whether the requirements, that a valid search war-

rant be obtained where no exigent circumstances existed,

were ignored in this case. Sufficient time existed to ob-

tain a warrant (3 days). The police considered getting a

warrant. An assistant District Attorney advised that they

could “get by” without one. The casual w-y the surveil-

lance was conducted negated the possibility of exigent cir-

cumstances.

er es

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF AUTHORITIES

OPINION BELOW

JURISDICTION

STATEMENT OF FACTS

REASONS FOR GRANTING THE Wu

1. The court below has decided two federal ques-

tions of substance in-a way not in accord with

applicable decisions of the Supreme Court of the

United States

2. The federal constitutional questions are of im-

portance in the administration of justice

3. The federal law on the constitutionality of war-

rantless arrest and warrantless search and seiz-

ure, seems to be in conflict with the state law

SUMMARY

CONCLUSION

APPENDIX A — Opinion of the Oklahoma Court of

Criminal Appeals (May 11, 1982)

2 *

TABLE OF AUTHORITIES

Cases PAGE(S)

Arkansas v. Sanders, 443 U.S. 753, 61 L.Ed.2d 235

(1979) a Ee

Coolidge v. New Hampshire, 403 U.S. 443, 21 L.Ed. 564

(1971) g 5,8

Dick v. State, 596 P.2d 1265 (Ok. Cr. 1979 9

Finch v. State of Oklahoma, 644 P.2d 1378 (Ok. Cr.

1982) 1

G. M. Leasing Corp. v. U. S., 429 U.S. 338, 50 L.Ed.2d

530

Hughes v. State, 552 P.2d 1154 (Ok. Cr. 1976) — 8

Katz v. U. S., 389 U.S. 347, 88 S.Ct. 507, 19 L. Ed. 2d 576

(1967) 6

Lo-sr. Sales, Inc. v. State of New York, 442 U.S. 311,

60 L.Ed.2d 960 5

Payton v. New York, 445 U.S. 573 5,8

Tate v. State, 44 P.2d 531 (Ok. Cr. 1975) 6,8

U. S. v. Magana 512 F.2d 1161 (9th Cir.) cert. den., 423

U.S. 826, 96 S.Ct. 42, 45 L.Ed.2d (197) 6

Statutes and Codes

28 U.S.C. § 1257(3) 1

U. 8. Constitution

Amendment IV 2

Amendment XIV, Sec. 1 2

In the

Supreme Court of the United States

Ocroser Term, 1982

EUGENE FINCH and VESTA MAE FINCH,

Petitioners,

v.

THE STATE OF OKLAHOMA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF CRIMINAL APPEALS OF THE

STATE OF OKLAHDOMA

The petitioners, Eugene Finch and Vesta Mae Finch,

pray that a writ of certiorari issue to review the two to

one (2 to 1) opinion and judgment of the Court of Criminal

Appeals of the State of Oklahoma rendered in these pro-

ceedings on the llth day of May, 1982.

The opinion of the Court of Criminal Appeals, Finch v.

State of Oklahoma, 644 P.2d 1378 (OkLCr. 1982), appears

as Appendix A hereto.

The order or judgment of the Court of Criminal Ap-

peals of the State of Oklahoma was entered on June 28,

1982 (see Appendix A). This petition for certiorari was

filed less than 90 days from the date aforesaid. The juris-

diction of this Court is invoked under 28 U.S.C. § 1257(3).

ra

CONSTITUTIONAL PROVISIONS INVOLVED

CONSTITUTION OF THE UNITED STATES

AMENDMENT IV:

“The right of the people to be secure in their per-

sons, houses, papers and effects against unreasonable

searches and seizures shall not be violated, and no

warrants shall issue, but on probable cause, supported

by Oath or affirmation, and particularly describing

the place to be searched and the persons or things

to be seized.”

AMENDMENT XIV, Sec. 1:

“No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States nor shall any State deprive any person

of life, liberty or property without the due process

of law; .. .”

STATEMENT OF FACTS

The facts in this case are: that Officer Terry Black-

ford of the Oklahoma Highway Patrol received a call from

Officer Larry Clayton of the Tulsa Police Department. He

testified that Officer Clayton asked him to go by the De-

fendants’ (Petitioners’) house and gave him the address,

stating that he had information there were stolen cars in

the driveway, including a maro m and white van. He was

also provided with the tag number for the van. Officer

Blackford testified he went by the house, checked and saw

several automobiles in the driveway. He stated that he

observed the described: van, but that be could not see the

tag as the van was backed up to the house. He testified

he observed a Corvette and a white Lincoln Mark IV in

.

the driveway; that he returned home, checked the tag num-

ber through the N.C.LC. for the Corvette and found that

it belonged on the white Continental Mark IV, which had

been reported stolen from Boley, Oklahoma. He testified

he called his supervisor, Lt. Tutton, advising him of the

call from Officer Clayton and what he had found. He testi-

fied he then called Officer Clayton and related to him the

information and was asked to hold off for the time being.

He testified the next day Officer Clayton called him at home

stating that he had information the van would be coming

to Tulsa in the next day or so to receive stolen property

at a northside shopping center and just to keep a check

on things. Officer Blackford testified he drove by every

day for the next three or four days and as many as two

or three times per day. He testified the van was never

moved from the position where it was backed into the gar-

age. He testified that the other cars were there with the

exception that once in a while one might be gone, but that

it would be there when he would go back again. He testi-

fied that in going back and forth to the house of the de-

fendants (Petitioners) he got another tag number, he was

not sure which car, which he checked and it also checked

out to be stolen. He testified he kept Officer Clayton and

his supervisor posted at all times regarding these matters.

Officer Blackford further testified that Officer Clayton

called him on November 6, 1978, a little after 5:00 pm.,

while it was still daylight; that Clayton told him wo Tulsa

Police Department officers had been sent to thy, house to

observe the automobiles and the house; that someone left

the house, drove to their car, rolled down the window and

then went back to the house. Officer Clayton further told

L

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Blackford that he did not know if it was a male or female

but that they had been “burned” and they would have to

move on it. Officer Blackford testified he called Muskogee

Assistant District Attorney Weldon Stout, his supervisor,

and Highway Patrol Headquarters to discuss the situation.

He testified that he talked to Assistant District Attorney

Weldon Stout about whether or not a search warrant should

be obtained and that Mr. Stout told him they did not need

a search warrant. They then all got together and went to

the house of the defendants (Petitioners), arriving shortly

after 9:30 p.m. Officer Blackford did testify it was night-

time when they arrived. Officer Blackford testified he went

to the door, rang or knocked on the door, and that the de-

fendant Eugene Finch (Petitioner here) answered. He

stated he told the defendant he had found certain stolen

automobiles in the driveway and advised him of his rights.

The defendant Eugene Finch was placed under arrest and

placed in a patrol unit. There were a great many other

officers present at the time and a search of the vehicles

was begun.

The search of the vehicles located at the house and a

check of the serial numbers showed that several of the

automobiles were stolen. The State had known for at least

three or four days prior to the arrest of the defendant Finch

and the search of the vehicles, that two of the vehicles were

stolen. This fact had been confirmed by Officer Blackford

through N.C.LC. The fact that at least two of the cars on

the premises were stolen, and the probability that the ma-

roon and white van was also stolen, was well known to the

State three or four days prior to the arrest and search and

seizure of the automobiles.

— j—

None of the exceptions to the rules that warrants are

necessary to protect the Constitutional Rights of citizens

existed. By the testimony of the police witnesses, they had

several days in which to obtain the necessary warrants,

and had probable cause. They did not do so, not because

there was not ample time to obtain the warrants, but be-

cause they erroneously believed no warrants were neces-

sary. These violations of the defendants’ Constitutional

Rights led to the admission of evidence that was so preju-

dicial as to require reversal. The law requiring warrants

of arrest and search warrants, when no exigencies exist,

is clear and unequivocal.

The landmark case of Coolidge v. New Hampshire, 403

U.S. 443, 21 L.Ed. 564 (1971), held that since the police

knew of the presence of the automobile and planned all

along to seize it, there were no exigent circumstances justi-

fying their failure to obtain a valid warrant, and the fruits

of the unconstitutional seizure of the automobile were in-

admissible, and that the doctrine of “plain view” could not

justify the police seizure of the accused’s automobile under

the circumstances of the present case.

Arkansas v. Sanders, 443 U.S. 753, 61 L.Ed.2d 235

(1979), Leer. Sales, Inc. v. State of New York, 442 U.S. 311,

60 L.Ed.2d 960, G.M. Leasing Corp. v. U. S., 429 U.S. 338,

50 L.Ed.2d 530, and Payton v. New York, 445 U.S. 573, hold

the Fourth Amendment is applicable to the States by the

Fourteenth Amendment, and prohibits the police from mak-

ing a warrantless and nonconsensual entry into a suspect's

home in order to make a routine felony arrest, and evi-

dence so obtained should be suppressed.

—g—

These arrests should be invalidated, the evidence sup-

pressed and the judgments reversed.

I. THE COURT BELOW HAS DECIDED TWO FED-

ERAL QUESTIONS OF SUBSTANCE IN A WAY

NOT IN ACCORD WITH APPLICABLE DECISIONS

OF THE SUPREME COURT OF THE UNITED

STATES.

The cases used by the Oklahoma Court of Criminal

Appeals in arriving at its decision, Katz v. U.S., 389 U.S.

347, 88 S.Ct. 507, 19 L.Ed. 2d 576 (1967); U.S. v. Magana,

512 F.2d 1161 (9th Cir.) cert. denied, 423 U.S. 826, 96 S.Ct.

42, 45 L.Ed.2d (1975) and Tate v. State, 544 P.2d 531 (Ok.

Cr. 1975), are not in point either as to the law or as to the

facts and should not be persuasive authority.

In Katz v. U. S., supra, the Supreme Court stated that

the Fourth Amendment protects people, not place; that a

private home is an area protected by the Fourth Amend-

ment.

In this case, the Petitioner, Eugene Finch, was enticed

from the privacy of his home into an open doorway by the

police and then subjected to a warrantless arrest.

The police should not be permitted to use the excep-

tions to the requirement that a valid warrant be obtained

to circumvent the requirement in a case where it is ob-

vious that a warrant should have been obtained.

a

7

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2. THE FEDERAL CONSTITUTIONAL QUESTIONS

ARE OF IMPORTANCE IN THE ADMINISTRA-

TION OF JUSTICE.

It is necessary to draw a line between the rights of

the police in enforcing the law and the rights of individuals

to be free from illegal harassment in the course of that

enforcement.

The requirements that a valid warrant be obtained

where no exigent circumstances exist, were ignored in this

case. Sufficient time existed to obtain a warrant (3 days).

The police considered getting a warrant. An assistant Dis-

trict Attorney advised that they could “get by” without

one. The casual way the surveillance was conducted ne-

gated the possibility of exigent circumstances.

Furthermore, the two Petitioners could not have spir-

ited five vehicles away during the time required to obtain

a warrant, or the officers could have kept the vehicles under

surveillance until a warrant was secured.

3. THE FEDERAL LAW ON THE CONSTITUTION.

ALITY OF WARRANTLESS ARREST AND WAR-

RANTLESS SEARCH AND SEIZURE, SEEMS TO

BE IN CONFLICT WITH THE STATE LAW.

The crux of the matter is, that although there were

neither exigent circumstances nor hot pursuit in this case,

nor was the Petitioner Eugene Finch in a public place on

his own volition without expectation of privacy, the Okla-

homa State Court of Criminal Appeals waived all these

constitutional safeguards and upheld the conviction of the

Petitioners.

—

The cases cited by the Attorney General of the State

of Oklahoma indicate, that although the criminal justice

system pays lip service to the rule that warrantless arrests

in felony cases and warrantless searches and seizures be

limited to cases where there was no time to obtain a war-

rant, with a few sharply defined exceptions involving exi-

gent circumstances as set forth in Coolidge v. New Hamp-

shire, 103 U.S. 443, 91 S.Ct. 2022, 29 L.Ed. 564, and subse-

quent cases including Payton v. New York, 445 U.S. 573, in

practice the system erodes the rule so that it becomes

meaningless, and warrants are not required unless law

enforcement officers choose to obtain a warrant.

The State cited the following cases and they circum-

vent the issues. In Tate v. State, 544 P.2d 53: (Ok. Cr.

1975), the court held that the defendant had no reasonable

expectation of privacy in his own driveway, and his Fourth

Amendment rights were not violated though the officer

technically violated his rights by a technical trespass onto

defendant's driveway and had no warrant mentioning the

truck or camper.

In Hughes v. State, 552 P.2d 1154 (Ok. Cr. 1976), the

Oklahoma Court of Criminal Appeals properly stated that

every search made without a warrant is unreasonable un-

less circumstances bring it within one of the few well-

defined exceptions of the warrant requirement, and then

decided that the vague intimations and suspicions of the

officer constituted probable cause and exigent circumstances

existed. li other words, the results justified the warrant-

less search.

ee

In Dick v. State, 596 P.2d 1265 (Ox. Cr. 1979), the

court held that no search or seizure occurs when an officer

observed items in a car that were in plain view and then

seizes anything that he believes is contraband, a weapon

or anything used in committing a crime or other evidence

of a crime, without obtaining a search warrant.

SUMMARY

These cases indicate that in cases involving an alleged

criminal act, the Oklahoma Courts, and especially the Ok-

lahoma Court of Criminal Appeals, hold as harmless error

any Constitutional rights violations that might result in

reversing the decision in the case.

For these reasons, a writ of certiorari should issue to

review the judgment and opinion of the Court of Criminal

Appeals of the State of Oklahoma.

bmi

& LANDRUM

110 N. 6th St.

P.O. Box 1368

Muskogee, Oklahoma 74401

(918) 683-2866

Attorney for Petitioners

August, 1982