Petition — Tillman v. Arkansas

F Len

82-706 SEP 80 1982

ee STEvas.

In the

Supreme Court of the United States

October Term, 1982

EN INE CUrwau wis cae dodersbibaeeebie's soe Petitioner

V.

OND 5 Sy ob u'bo 03 oadise suse ke avo Respondent

WRIT FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF ARKANSAS

WILLIAM C. McARTHUR

2020 Broadway

P. 0. Box 589

Little Rock, Arkansas

(501) 376-6173

Attorney for Petitioner

QUESTIONS PRESENTED FOR REVIEW

I.

THE DECISION BELOW ALLOWS A CLEAR

VIOLATION OF FOURTH AMENDMENT TO THE UNITED

STATES CONSTITUTION AND IS CONTRARY TO THIS

COURT'S RULING IN ROBBINS V. CALIFORNIA, ___

US. ___, 101 S.Ct. 2841 (1981).

ii

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW .........

TABLE OF AUTHORITIES .....................

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ..................

STATEMENT OF THE CASE ...................

REASONS FOR GRANTING THE WRIT .........

I. The Decision Below Allows a Clear

Violation of Fourth Amendment to the

United States Constitution and is Contrary

to This Court's Ruling in Robbins v.

California, ___. U.S. ___., 101 S.Ct.

CUED « vehine 0.cdvUwubys sleds bis oc'ot

i ib hins o CaKin ty od hei «6 dis Up. v0.0.

TABLE OF AUTHORITIES

CASES:

Adams v. Williams, 407 U.S. 143 (1972) .............

Auguilar v. Texas, 378 U.S. 108 (1964)... 2.26... cece eens 6

Cambers v. Moroney, 399 U.S. 42 (1970)... 6... ec cc cece nes 7

Carroll v. United States, 267 U.S. 132 (1925) ..........-.... 8

Harris v. Stephens, 361 F.2d 888 (1966) ........ 6.66. 0000es 5

Jenkins v. State, 253 Ark. 249, 485 S.W.2d

Geb CUED be cbsowecnbiedendacdess -pucccneccecces 7

Katz v. United States, 389 U.S. 347 (1967) ...... 6... 6c ee ees 7

McDonald v. State, 491 S.W.2d 253, Ark. 812 (1973)........ §

Meadows v. State, 269 Ark. 380, 602 S.W.2d

PRED «cvccucndce cbdbbetencteeeseccecessctecs 9

New York v. Belton, __. U.S. ___., 101 8.Ct.

BD GIGED 6 cvce vc ccccvcvccnccvaqsacccccocccbvcnes 8

Robbins v. California, ___ U.S. ___., 101 S.Ct.

Be BINED Canc coccovccknc cothvedeebsescngisvcceds 8

Stell v. State, 248 Ark. 159, 450 S.W.2d 545 (1970).......... 9

Terry v. Ohio, 392 U.S. 1 (1968) ..... 6. 6c cece cece eee eeees 6

United States v. Brignon-Ponce, 422 U.S. 873 (1975) ........ 6

United States v. Cortez, 499 U.S. 411 (1981)............... 6

Wong Son v. United States, 371 U.S. 471 (1963)............ 7

Constitutional Provision:

U.S. Const., Fourth Amendment .................. 1

Statutes:

Ark. Stat. Ann. 43-429 2.0.0.6. ees 2

3n the

Supreme Court of the United States

October Term, 1982

ED « 04.60 dc cde webaroucet sebevonsd Petitioner

V.

MEN osc db ccccevceehe dab pees ct Respondent

WRIT FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF ARKANSAS

OPINIONS BELOW

The opinion of the Arkansas Supreme Court is

reported at Ark. (Mar. 8, 1982) and is attached as Appendix

“B". The denial of the Petition for Rehearing, issued April

12, 1982, is attached as Appendix “D”.

JURISDICTION

The opinion of the Arkansas Supreme Court was filed

on March 8, 1982. The Petition for Rehearing was denied by

that Court on April 12, 1982. Jurisdiction of this Court is

invoked under 28 U.S.C. 1257 (3).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution Fourth Amendment:

(Unreasonable searches and seizures.) — The right of the

ee ae eee conan anne

effects, against searches and seizures,

shal) not be violated, and no warrants shall issue, but

upon probable cause, supported by oath or affirmation,

and particularly describing the place to be searched and

the persons or things to be seized.

Ark. Stat. Ann, 43-429:

43-429: Stopping and detaining person reasonable

suspected of committing or about to commit a felony —

Time Limit.—(a) Law enforcement officer lawfully

present in any place may, in the performance of his

duties, stop and detain any person whom he reasonably

suspects is committing, has committed, or is about to

commit a felony, if such action is reasonably necessary

to identify or determine the lawfulness of such person's

conduct. An officer acting under this section may

require that person to remain in or near such place in

the officer's presence for a period of not more than

fifteen (15) minutes, at the end of such period the person

detained shall be released without further restraint, or

arrested and charged with a crime.

(b) As promptly as is reasonable under the

circumstances, a law enforcement officer who has

detained a person under this section shall advise that

person of his official identity and inform such person of

the ~— for the detention, (Acts 1969, No. 378, 1, p.

1086

STATEMENT OF THE CASE

Deputy Alan Swint of the Lonoke County Sheriff's

Department was in the England, Arkansas Police

Department on February 4, 1980, at approximately 12:30

p.m. when an unknown person entered the police

department and told him that he had been following a

bronze Cadillac with three black males in the vehicle from

North Little Rock to the vicinity of Scott, Arkansas. He told

the Deputy that the car would slow down at certain houses

and then continue on. On the basis of this information,

Deputy Swint proceeded to the Scott area and upon

reaching the intersection of Highway 130 and Walkers

Corner Road, he observed the Cadillac automobile in the

roadway facing south. The automobile proceeded to the stop

sign at Highway 130 and turned toward North Little Rock.

The Deputy followed the automobile into Pulaski County

and almost into the North Litle Rock City limits. At that

point he stopped the vehicle by use of the lights on his police

unit and stopped a Pulaski County Sheriff's car at the same

time. The Deputy then arrested and took into custody all

three occupants of the vehicle. Petitioner being one, and

placed in the police unit. After the three occupants were

arrested Deputy Swint received a police communication

that the George Brown home on Walker Corner Road had

been burglarized. He then opened the trunk of the

automobile and observed some folding clothing bags in the

trunk of the vehicle. The prisoners and the automobile were

then transported to the Lonoke County Sheriff's

Department where the items were seized from the trunk of

the vehicle and the Appellants were officially charged with

burglary and theft. Petitioner moved to suppress the

evidence seized and a hearing was conducted, by the

Lonoke Circuit Court and the Motion was denied. On

August 19, 1980, Petitioner was tried by a jury in Lonoke

Circuit Court, found guilty and sentenced on both the

burglary and the theft charges.

4

Following conviction of Petitioner, his case was

appealed to the Arkansas Supreme Court and on March 8,

1982, an opinion was delivered affirming by four to three

vote the rulings of the lower court. A Petition for Rehearing

was filed on March 24, 1982 and on April 12, 1982, the Court

denied the rehearing again by four to three vote.

REASONS FOR GRANTING THE WRIT

I.

THE DECISION BELOW ALLOWS A CLEAR VIOLA-

TION OF FOURTH AMENDMENT TO THE UNITED

STATES CONSTITUTION AND IS CONTRARY TO THIS

COURT'S RULING IN ROBBINS V. CALIFORNIA, ___

US. ___, 101 S.Ct. 2841 (1981).

It must be determined whether the detention of the

three men constituted an arrest or merely an investigatory

stop and the legality oi either.

If the detention was an arrest then probable cause

would be necessary in order for the arrest to be legal.

Probable cause for an arrest means there must be a

substantial probability that a crime has been committed and

that the person to be arrested committed it. Petitioner

contends the detention was an arrest and probable cause

was not sufficient making the arrest an illegal one. The lezal

issue of probable cause necessary for arrest without a

warrant must be resolved on a case-by-case basis ‘rom

individual facts and circumstances. Harris v. Stephens 361

F.2d 888 (1966).

In McDonald v. State, 491 S.W.2d 253, Ark. 812 (1973)

the Supreme Court of Arkansas stated, “Counsel is

mistaken in arguing that there was no arrest simply

because the officers did not use the word “arrest” before

making the search. It is the actual restraint, or consent to

restraint, that constitutes an “arrest”! In this particular

case, the three men were being restrained and they felt

compelled to move in accordance with the arrestor's

instructions. In other words they felt their freedom of

movement had been taken away. Also, in the arresting

officer's testimony he concedes that the men were arrested.

(See dissenting opinion, page 2).

Since this appears to be an arrest, according to the law

and of the officer's testimony, Appellant contends probable

cause was not sufficient to make the arrest. At the time of

the detention the arresting officer did not have any

knowledge that a crime had been committed and at that

time did not have probable cause to make the arrest.

The majority opinion denies that this was an arrest but

maintains it was only an investigatory stop. Reasonable

suspicion is required for an investigatory stop to be made.

This is a slightly lesser standard than probable cause.

However, this type of stop is limited and does have

restrictions. The Supreme Court of the United States has

this type of stop in four situations. In Terry v.

Ohio, 392 U.S. 1 (1968), and Adams v. Williams, 407 U.S. 143

(1972), the search was limited to the person's clothing and

the area within their immediate control and this was only to

protect the officer from any harm that might come to him if

weapons were hidden. In United States v. Brignon-Ponce,

422 U.S. 873 (1975), special circumstances existed for border

searches and stops.

Finally, in United States v. Cortez, 499 U.S. 411 (1981)

the court said it was necessary for there to be an objective

manifestation that the person is, or is about to be, engaged

in criminal activity, the detention and investigation may not

be based on a peace officer's unsupported intuition,

subjective feelings or suspicion, mere hunch, or good faith

but it must be based on the objective perception of events,

without particularization as to a specific crime. “The

analysis of that objective manifestation may include

articulation of objective observations, information from

police reports or consideration of modes or patterns of

operation of criminals. (See dissention opinion— page 4).

United States v. Cortez. supra

In this particular case, the Deputy had information

from an unknown and unidentifiable informant. In Auguilar

v. Texas, 378 U.S. 108 (1964), underlying circumstances

7

necessary to judge the validity of an informant’'s conclusion

were necessary and the informant must be shown to be

credible and his information reliable. There is some

question in this case whether either one of these

requirements was satisfied regarding the informant. The

Deputy had knowledge of prior burglaries, but no testimony

was introduced to demonstrate the modes or patterns of

those burglaries. The deputy did not know appellants or

their backgrounds. “The specificity in the information is the

touchstone on which a legitimate .nvestigatory stop is

made.” United States v. Cortez, supra, in the instant case, it

appears the officer did not articulate a reasonable suspicion

for the stop and it was therefore unlawful.

Since, whether classified as an arrest or an

investigatory stop, the detention was unlawful, the

evidence seized as a result is tainted and should be

excluded. Wong Son v. United States, 371 U.S. 471 (1963).

If the evidence cannot be suppressed for the preceding

reason, then, if allowed it must fit into an exception to the

general rule which says the seizure of evidence without a

warrant is, per se, unreasonable. Katz v. United States, 389

U.S. 347 (1967).

In this case the seizure cannot be classified as one

incident to an arrest because the deputy testified that the

car was not searched until sometime later. “Once an accused

is under arrest and in custody, then a search made at

another place without a warrant is simply not incident to

arrest” Cambers v. Maroney, 399 U.S. 42 (1970) quoted in

Jenkins v. State, 253 Ark. 249, 485 S.W.2d 541 (1972).

This particular search and seizure cannot be classified

as a protective search because it was not a frisk for the

officer's protection. The search cannot be classified as a

“plain view” exception because the inside of the trunk

would not be considered in plain view.

New York v. Belton, __. U.S. ____ 101 S.Ct. 2860

(1981) allows for a search of the passenger compartment of a

vehicle when a lawful custodial arrest has been made. This

case is not applicable however, because it does not address

any area other than the passenger compartment and no

mention of the trunk is made. However, in Robbins v.

California, _. US. —__., S.Ct., 2841 (1981), officers

uncovered a recessed luggage compartment in a station

wagon and found two plastic garbage bags containing 30

pounds of marijuana. The Supreme Court of the United

States rejected the contention that the “automobile

exception” to the Fourth Amendment warrant requirement

justified the warrantless search of closed containers found

inside the automobile and held the contents of a closed

container is such that its contents are in plain view.

In this particular case, there is some question about

whether the contents were in plain view. The deputy

testified he saw the silver but the photograph does not show

any of the contents of the luggage. The case does involve

closed containers found in a recessed compartment (trunk)

and thus, if Robbins is followed, would be protected by the

Fourth amendment warrant requirement and the evidence

should be excluded because a warrant was not obtained.

The majority opinion argues the 1925 “Automobile

exception” case of Carroll v. United States, 267 U.S. 132

(1925). That case allows a warrantless search where the

vehicle can be quickly moved out of the locality, but in this

case the car was in custody and could not be moved.

Arkansas cases which are directly in point hold that a

warrantless search of a vehicle is invalid unless there is

both a probable cause and exitent circumstances. The

United States Supreme Court has allowed warrantless

searches on probable cause alone and the majority opinion

argues that when the officer learned of the burglary he then

had probable cause to believe the vehicle contained

evidence of the crime and the search was legal. However, if

you follow Arkansas case law, exigent circumstances must

also exist for a search without a warrant. Jenkins v. State,

supra; Stell v. State, 248 Ark. 159, 450 S.W.2d 545 (1970).

Arkansas cases direcily in point should govern even if the

standard is more stringent. Meadows v. State, 269 Ark. 380,

602 S.W.2d 636 (1980). In this case, no exigent circumstances

existed because the three men were in custody and the car

was impounded. There was no immediate danger to the

officers and no possibility of any evidence being destroyed.

The officers had time to get a warrant after transporting

the car to the Sheriff's compound and should have done so.

Because the search did not fit into any of the exceptions to

the general rule, the evidence should have been suppressed

because a warrant was not obtained.

10

CONCLUSION

For the above-stated reasons, the Petitioner

respectfully submits that the Writ of Certiorari should be

granted.

Respectfully submitted,

WILLIAM C. McARTHUR

2020 Broadway

P. 0. Box 589

Little Rock, AR 72201

(501) 376-6173

Attorney for Petitioner