# Petition — Pennsylvania v. Lovette > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0019%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 - **Citation:** 459 U.S. 1178 ## Text OCTOBER TERM, NO, COMMONWEALTH OF Ve ANDRE LOVETTE, AND Representative of Andre Lovette, R2 -918 IN THE SUPREME COURT OF THE UNITED STATES 1982 PENNSYLVANIA, Petitioner SIMONA LOVETTE, the Estate of Respondents PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF PENNSYLVANIA ERIC B. HENSON Deputy District Attorney Law Division (Counsel of Record) MARK S. GUREVITZ Assistant District Attorney GAELE McLAUGHLIN BARTHOLD Assistant Chief Appeals Division EDWARD G. RENDELL District Attorney Philadelphia County 1300 Chestnut St. Phila., Pa. 19107 (215) 875-6010 QUESTIONS PRESENTED 1. Whether the Fourth and Fourteenth Amendments prohibit the brief and limited movement of individuals reasonably sus- pected of criminal activity, absent prob- able cause to arrest? 2. Whether it is constitutionally permissible and reasonable for police to transport an individual properly detained under Terry v. Ohio, 392 U.S. 1 (1968), a short distance for a valid and reasonable investigative purpose? 3. Whether a Writ of Certiorari should be issued to resolve these ques- tions on which conflicting decisions have been rendered by the Circuit Courts of Appeals and by the highest state courts of the nation? INDEX Opinions Below Statement of Jurisdiction Constitutional Provisions Involved Statement of the Case Reasons for Granting the Writ The Fourth and Fourteenth Amendments do not require that the brief and limited movement of a lawfully detained suspect be supported by probable cause to arrest. No constitutional violation occurs if a person validly stopped and. detained under Ter v. Ohio, 392 U.S. 1 (1968), 5 moved a short dis- tance for a valid and reason- able investigative purpose. Conclusion APPENDICES Appendix A; Judgment and Opinion of the Supreme Court of Pennsylvania Appendix B: Opinion of the Super- ior Court of Pennsyl- vania 42 10-20 21 1A-15A 1LB-12B TABLE OF CITATIONS Federal Cases Dove v. United States, 423 U.S. 325, 96 S. Ct. 579 (1976) Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248 (1979) Liner v. Jafco, Inc., 375 U.S. 301, 84 S. Ct. 391 (1964) Michigan v. Summers, 452 U.S. 692, 101 S. Ct. 2587 (1981) Richardson v. Ramirez, 418 U.S. #4, 94 S. Ct. 2655 (1974) Terry v. Ohio, 392 U.S. l, 88 S. Ct. 1868 (1968) United States v. Berry, 670 F.2d 583 (5th Cir. 1982) United States v. Hill, 626 F.2d 429 (Sth Cir. 1980) United States v. McCaleb, 552 F.2d 717 (6th Cir. 1977) United States v. Oates, 560 F.2d 45 (2d Cir. 1977) United States v. Post, 607 F.2d 847 (9th Cir. 1979) United States v. Salter, 521 F.2d 1326 (2d Cir. 1975) iii PAGE 18 United States v. Short, 570 F.2d 1051 (D.C. Cir. 1978) United States v. Thevis, 469 F. Supp. 490 (D. Conn.), aff'd, 614 F.2d 1293 (2a Cir. 1979), cert. denied, 446 U.S. 908, 100 S. Ct. 1834 (1980) United States v. White, 648 F.2d 29 (D.C. Cir.), cert. denied, 454 U.S. 924, 102 S. Ct. 424 (1981) United States v. Wylie, 569 F.2d 62 (D.C. Cir. 1977), cert. denied, 435 U.S. 944, 98 S. Ct. 1527 (1978) Pennsylvania Cases Commonwealth v. Lovette, Pa. , 450 A.2d 975 (1982) Commonwealth v. Lovette, 271 Pa. Superior Ct. 250, 413 A.2d 390 (1979) Commonwealth v. Walker, 447 Pa. 146, 288 A.2d 741 (1972) Other Cases District of Columbia v. M.M., 407 A.2d 698 (D.C. App. 1979) iv PAGE 16 16 16 16 passim 17 1087, 126 Cal. Rptr. 898 (1976) People v. Brnja, 70 App.Div.2d 17, 419 N.Y.S.2d 591 (1979), aff'd on other grounds, 50 N.¥.2d 306, 429 N.Y. oS TTS , 406 N.E.2d 1066 (1980) People v. Harris, 15 Cal.3d 384, 124 Cal. Rptr. 536, 540 P.2d 632 (1975), cert. denied, 425 U.S. 934, 96 S. Ct. 1664 (1976) People v. Herron, 89 I1l.App.3d 1048, 412 N.E.2d 1365 (1980), cert. denied, 454 U.S. 1080, 102 S. Ct. 633 (1981) People v. Hidalgo, 78 Cal.App.3d 675, 144 Cal. Rptr. 515 (1978) People v. Hines, 94 I11.App.3d 1041, 419 N.E.2d 420 (1981) People v. Holdman, 73 I11.2d 213, 383 N.E.2d 155 (1978), cert. denied, 440 U.S. 938, 99 S. Ct. 1979) Singletary v. United States, 383 A.2d 1064 (D.C. App. 1978) State v. Gardner, 28 Wash. App. 721, 626 P.2d 56 (1981) State v. Isham, 70 Wis.2d 718, 235 N.W.2d 506 (1975) PAGE 19 17 19 17 19 17 17 17 17 17 State v. Watson, 165 Conn. 577, 345 A.2d 532 (1973) Wilkerson v. United States, 427 A.2d 923 (D.C. App.), cert. denied, 454 U.S. 852, 102 S. Ct. 295 (1981) Constitutional and Statutory Provisions U.S. Const. amend. IV U.S. Const. amend. XIV, §1 28 U.S.C. §1257(3) Pa.R.A.P. 502(a) Other Authorities ALI Model Code of Pre-Arraignment Procedure §110.2, Comment (Pro- posed Official Draft 1975) W. LaFave, Search and Seizure §9.21 (1978) vi PAGE 16-17 17 wo Ho wo Ww 15 15 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1982 NO. COMMONWEALTH OF PENNSYLVANIA, Petitioner Ve ANDRE LOVETTE, AND SIMONA LOVETTE, Representative of the Estate of Andre Lovette, Respondents PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF PENNSYLVANIA Petitioner, the Commonwealth of Penn- sylvania, respectfully requests that a Writ of Certiorari issue to review the Judgment and Opinion of the Supreme Court of Penn- sylvania entered in this case on October 5, 1982. OPINIONS BELOW The Opinion below and Judgment of the Pennsylvania Supreme Court, which is unoffi- cially reported at 450 A.2d 975 (Pa. 1981), but which nas not yet been officially reported, is set forth in full in Appendix A, infra at 1A-15A. The Opinion below of the Pennsylvania Superior Court, which is officially reported at 271 Pa. Superior Ct. 250 (1979), and unofficially reported at 413 A.2d 390 (Pa. Superior 1979), is set forth in full in Appendix B, infra at 1B-12B. STATEMENT OF JURISDICTION The judgment of the Pennsylvania Supreme Court was entered on October 5, 1982. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. §1257(3).> lpecause an actual case and controversy is here presented, Richardson v. Ramirez, 418 U.S. 24, 37, 94 S. Ct. 2655, 2662 (1974) (Court limited by Article III "to adjudication of actual disputes between adverse parties"), this Court's jurisdic- tion is not defeated by respondent Andre Lovette's death shortly after the Pennsyl- vania Supreme Court granted discretionary review of his case. (Footnote 1 continued on next page.) (Footnote 1 continued from previous page.) When petitioner, the Commonwealth of Pennsylvania, learned of Mr. Lovette's death two years later, shortly after oral argument of the case, it immediately peti- tioned to abate the appeal. Respondent's counsel and respondent's mother, as repre- sentative of his estate, opposed the peti- tion, however, and respondent's mother petitioned to be substituted for her deceased son "as a party before [the Penn- sylvania Supreme] Court." See Pa.R.A.P. 502(a). Thereafter, the Pennsylvania Supreme Court denied the Commonwealth's petition. See Commonwealth v. Walker, 447 Pa. 146, 288 A.2d 741 (1972) ("... it is in the interest of both a defendant's estate and society that any challenge initiated by a defendant to the regularity or constitutionality of a criminal proceed- ing be fully reviewed and decided by the appellate process."). The interests of the Estate and of the Commonwealth are therefore affected by the judgment of the Pennsylvania Supreme Court. While the question of mootness is a federal one, Liner v. Jafco, Inc., 375 US. 301, 304, 84 S. Ct. 391, 393 (1964), a continuing controversy, between adverse parties, leading to a judgment determin- ing the parties' legal interests, was resolved in the state court system and is now before this Court. This is the essence of a live controversy. (Footnote 1 continued on next page.) (Footnote 1 continued from previous page.) In this instance, unlike Dove v. United States, 423 U.S. 325, 96 S. Ct. 579 (1976), where the death of the petitioner during the pendency of a petition for certiorari resulted in its dismissal, there is no changed circumstance which defeats this Court's review. In Dove there was no showing that either party had an interest which continued beyond defendant's death. Here, respondent Andre Lovette's mother and personal representative willingly chose to substitute for her son, so as to protect his estate and insure that the validity of his conviction was justicia- ble. Respondents, therefore, may not defeat this Court's jurisdiction and cut off further appellate review, in deroga- tion of public and state interests, simply because they achieved a "favorable" result in the Pennsylvania Supreme Court. CONSTITUTIONAL PROVISIONS INVOLVED United States Constitution, Amendment Four, which provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seiz- ures, shall 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. United States Constitution, Amendment Four- teen, Section One, which provides: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the priv- ileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. STATEMENT OF THE CASE On December 15, 1976 at 5:15 p.m., Philadelphia Police Officer James McCoy was dispatched to investigate an anonymous report of men inside a deserted house with stolen property. At the vacant building, Officer McCoy and his partner discovered stereo equipment, wrapped Christmas gifts, clothing, pottery, and other items, Fur- ther investigation revealed that a nearby house had been burglarized and that the burglars took the stolen items to the deserted premises leaving trails of foot- prints in a muddy plot of ground which separated the buildings (N.T. 4-7) .° Ten minutes after the officers' arrival, the owner of the burglarized premises returned. He told police that when he left his home at approximately NAT. refers to the Trial Notes of Testimony. 10:30 a.m., the property was secured. The owner identified the property in the aban- doned building as his (N.T. 8-9). Within twenty minutes of the radio call Officer McCoy began to patrol the immediate area. A minute later and a block and a half away he spotted three men; they attracted his attention because each had mud on his shoes, Respondent, An‘?re Lovette, a member of the trio, had a paper bag in his hand (N.T. 9-11). ‘When stopped by Officer McCoy, none of the men was able to produce any identi- fication (N.T. 10-l1l, 19). Meither could they initially explain the source of the mud on their shoes, although they later said they must have walked through a field at some time during the day. Officer McCoy next asked Lovette what was in the paper bag. He responded by showing the officer a camel-colored hat which he Claimed was just obtained from an unspeci- fied friend (N.T. 12-13). Based on the trio's muddy shoes and evasive answers, Officer McCoy transported them to the burglary scene, one and one- half blocks away, for possible identifica- tion of the hat by the victim. Before placing the men in the police vehicle, the officer conducted a “pat down" search; this revealed a gold ring and a silver dime of numismatic value. At the burglar- ized house, less than a minute later, the complainant identified the hat, ring and silver dime as items taken from his house. The three men were then placed under arrest and Lovette was charged, in the Court of Common Pleas of Philadelphia County, with burglary and theft by unlaw- ful taking (N.T. 13-16). After the denial of a pre-trial suppression motion, which alleged that physical evidence was obtained in viola- tion of Lovette's constitutional rights and the product of an arrest based on less than probable cause, respondent waived trial by jury and was convicted as charged. The trial court denied post- verdict motions and imposed a sentence of four to twenty-three months imprisonment. The conviction was affirmed by the Penn- sylvania Superior Court sitting en banc. Commonwealth v. Lovette, 271 Pa. Superior Ct. 250, 413 A.2d 390 (1979) (Appendix B, infra at 1B-12B). Following the grant of a petition for allowance of appeal, the Supreme Court Of Pennsylvania reversed the conviction in an opinion issued on October 5, 1982 (Appendix A, infra at lA- 15A). The Commonwealth of Pennsylvania now seeks this Court's review of that decision. REASONS FOR GRANTING THE WRIT THE FOURTH AND FOURTEENTH AMEN” - MENTS DO NOT REQUIRE THAT THE BRIEF AND LIMITED MOVEMENT OF A ‘LAWFULLY DETAINED SUSPECT BE SUP=- PORTED BY PROBABLE CAUSE TO ARREST. NO CONSTITUTIONAL VIOLATION OCCURS IF A PERSON VALIDLY STOPPED AND DETAINED UNDER TERRY V. OHIO, 392 U.S. 1 (1968), TS MOVED A SHORT DISTANCE FOR A VALID AND REASON- ABLE INVESTIGATIVE PURPOSE. The question presented here is whether police constitutionally may transport a suspect properly detained under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968), a short distance so that the known victim of a recent burglary may determine promptly whether property found on the suspect was stolen in the burglary. In this case, a Philadelphia police officer who knew that the perpetrators of a recent burglary had trekked through mud with the stolen goods, stopped three men On a city sidewalk a short distance away 10 because the shoes of all three were cov~ ered with mud. When the trio gave evasive answers about. the mud and were unable to produce identification, this officer pre- pared to transport them to the victim to determine if he could identify a hat which respondent carried in a bag and said was given to him by an unspecified friend. A frisk then revealed a gold ring and a dime of numismatic value in the pocket of one of respondent's companions. The offi- cer then transported the trio one and one- half blocks to the burglary site to see if the victim could identify the hat, ring and dime. When the victim positively identified all three items as his, the three men were arrested. The Pennsylvania Supreme Court, on these facts, held that “the added element of a transportation of the suspects from the place of the initial encounter without exigent circumstances to support that 1l action" constituted an arrest requiring probable cause, despite the legitimate investigative purpose of the transporta- tion. Appendix A at 12A-13A.° Relying on this Court's Fourth Amendment decisions, the Pennsylvania Supreme Court concluded that movement of suspects was not encom- passed in the exception to the requirement of probable cause enunciated by this Court in Terry v. Ohio, supra, and its progeny. Appendix A at 9A-LIA. 3The Pennsylvania Supreme Court acknowl- edged the reasonableness of the stop and the further detention for identification: The police had the option of detaining the suspects at the site of the initial encounter and either bringing the com- plainant to the site for his identification of the questioned articles or taking those items to him. Either situation would present a much stronger case for the position the Commonwealth presently urges. Appendix A at 12A. 12 The mere fact that an individual who is reasonably suspected of criminal behav- ior has been moved a short distance, for a valid investigative purpose, is not determinative of whether the Fourth and Fourteenth Amendments have been violated. Rather, the question, as in any Fourth Amendment case, is whether the length and intrusiveness of the investigation was reasonable. Where, as here, detention of an indi- vidual for identification is proper, his brief transportation to a nearby known victim is not an unreasonably greater intrusion or violative of his constitu- tional rights. Transport does not unduly Or unreasonably delay the decision to release or arrest the suspect. Indeed, it may take longer to have witnesses brought to the site of the stop. This would defeat many prompt releases and 13 prevent police from expeditiously resuming their investigations when criminals are most likely to be apprehended. Contrary to the Pennsylvania Supreme Court's conclusion, the brief detention and transportation here of the unidenti- fied individuals suspected of a nearby, recent burglary was reasonable.” The time spent in transporting respondent was less than a minute. Less than a half hour elapsed between Lovette's initial contact with police and his arrest. This delay 4ohe Pennsylvania Supreme Court's reli- ance On Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2246 (1979), to support its con- Clusion that movement of a suspect neces- sarily constitutes an arrest for which probable cause must be present, is obvi- ously misplaced. In Michigan v. Summers, 452 U.S. 692, 101 Ss. Ct. x57 (1981), this Court expressly stated that Dunaway applies only to detentions designed to provide an opportunity for custodial interrogation. 452 U.S. at 702 n.15, 101 S. Ct. at 2593 n.15. 14 was no greater than that contemplated by Terry.” As Professor LaFave has noted, a stop remains reasonable in length so long as ",.. the police are diligently pursuing a means of investigation which is likely to resolve the matter one way or another very soon and ... it is rather essential to the investigation that the suspect's presence be continued during that interval." 3 W. LaFave, Search and Seizure §9.21, at 40, quoted in Michigan v. Summers, supra, 452 U.S. at 701-02 n.14, 101 S. Ct. at 2593 n.14. >the ALI Code suggests that any detention of under twenty minutes is per se reason- able in duration. See ALI Model Code of Pre-Arraignment Procedure §110.2 Commen- tary, at 283 (Proposed Official Draft 1975). This Court, however, has recently said that the investigative purpose of Terry is best served in some circumstances police are able to detain for longer than the brief period involved in the Terry case. Michi- gan _v. Summers, supra, -S. at 7 Ne ’ . Ce at 593 n.1l2. 15 The vast majority of the federal courts of appeal and state courts that have considered this issue have held that the brief transportation of suspects a short distance for identification is rea- sonable during an investigative detention 6 premised on reasonable suspicion, Two Ssee, e e.g., United States v. White, 648 F.2d 29, (D.C. Cir.), cert. denied, 454 U.S. 924, 102 S. Ct. 424 TIS81)” ("courts have routinely allowed officers to insist on reasonable changes of location when carrying out a Terry stop"); Un-ted States v. Short, 570 F. 051 (D.C. police may, pursuant to Terry sate, take mrp ye to nearby rey oe scene) ; United States v. Hyd e, 569 F.2d 62 (D.C. Ze , cert. denied, 435 U.S. 944, 98 S. Ct. 1527 (1578) (officer could bring defendant back into bank for Ter inves- tigation where suspect had no identifica- tion); United States v., Oates, 560 F.2d 45 (2a Cir. 1577) (removal into nearby office); United States v. Thevis, 469 F. Supp. 490° (D. Conn.) , afttd, 614 F.2d 1293 (2d Cir. 1979), cert. ert, denied, 446 U.S. 908, 100 S. ct. 1834 (I580) (having defendant accompany police officer into bank manager's office did not transform investigative stop into full arrest); State v. Watson, 165 Conn. 577, 345 A.2d (Footnote 6 continued on next page.) 16 federal circuit courts of appeals have held, however, that requiring an individual to (Footnote 6 continued from previous page.) 532 (1973) (where during Terry stop credit cards and watches are observed on floor of vehicle, transport of all four occupants to police station was not an arrest); Wilk- erson v. United States, 427 A.2d 923 (D.C. App.), cert. denied, 454 U.S. 852, 102 S. Ct. 295 (1981) (transporting suspect to crime scene one-half block away after sus- picious answers held to be investigatory detention); District of Columbia v. M.M., 407 A.2a 698 (D.C. App. 1979) (during valid investigatory stop, proper to transport suspects to scene as well as frisk them for weapons and look in bag one carried prior to placing pair in police cruiser); Single- tary v. United States, 383 A.2a 1064 (D.C. App. 1978) (same; placed in police car and returned to robbery scene one block away) ; People v. Hines, 94 I11.App.3d 1041, 419 N.E.2d 420 (1961) (where police could tem porarily detain suspect for investigation, it was reasonable to transport him one- half block back to scene to see whether he was involved); People v. Herron, 89 Ill. App.3d 1048, 412 NE Da T5635 (15 80) » cert, denied, 454 U.S. 1080, 102 S. Ct. 633 (brief transportation of defendants to proximate crime scene for identifica- tion by known eyewitness proper); People v. Holdman, 73 I1l1.2d 213, 383 N.E.2d 155 » cert. denied, 440 U.S. 938, 99 S. Ct. 1285 (1979) (return of passengers (Footnote 6 continued on next page.) 17 go against his will from an airport con- course to an office for further interro- gation constitutes a seizure equivalent (Footnote 6 continued from previous page.) fleeing car proper under Terry); People v. Brnja, 70 App.Div.2d 17, cheer S51 ), aff'd on other grounds, 50 N.Y.2d 366, 429 N.Y.S.2d 173, doe NE. 24 1066 (1980) (defendant stopped, frisked, hand- cuffed, put in car and driven one-half mile to store for identification by owner fifteen minutes to one-half hour after robbery; held reasonable without probable cause); State v. Gardner, 28 Wash. App. 721, 626 P.2d 56 (1981) (where police had report of two males in woods, reasonable to stop two males at roadside next to woods and return them to abandoned vehicle less than a mile away; held not an arrest but an investigative stop); State v. Isham, 70 Wis.2d 718, 235 N.W.2da 506 (1975) (reason- able under Ter to transport suspect two and one-hal ocks for voice identifica- tion by victim). See also United States v. Post, 607 F.2d 847 (Sth Cir. 1979) (if an officer is justified in stopping a person for questioning, the stop does not become an arrest if, in the absence of protest or “coercive” circumstances, the officer directs that the questioning occur in a less public place); United States v. Salter, 521 F.2d 1326 (2a Cir. 1975). 18 to an arrest that must be justified by probable cause. ’ California permits move- ment of the suspect to the crime for iden- tification purposes only where exigent circumstances exist.” Review by this Court is crucial to resolve these con- flicts and to provide guidance to police. When, as here, Terry v. Ohio, supra, permits police to detain a suspect for an "united States v. Berry, 670 F.2d 583, 802° (5th Cir. Lode); United States v. Hill, 626 F.2d 429, 433-37 (5th Cir. ; United States v. McCaleb, 552 F.2d Tove on th Cir. ° 8see People v. Barris, 15 Cal.3d 384, 124 Cal. Rptr. P.2d 632 (1975), cert. denied, 425 U.S. 934, 96 S. Ct. T664 (1976) (transport of suspect to crime scene for possible identification proper only where victim incapacitated, suspect consents, or there are other unusual cir- cumstances which the court did not specify); In re Lynette G., 54 Cal.App.3d 1087, 126 Cal. Rptr. 896 (1976) (transport of defen- dant to injured victim proper under Harris) ; People v. Hidalgo, 78 Cal.App.3d 675, 144 Cal. Rptr. 515 175 78) (transport unreason- able under Harris guidelines). 19 identification, a one minute ride to the crime scene does not convert an otherwise reasonable stop into an arrest without probable cause. 20 CONCLUSION For all the foregoing reasons, the Commonwealth of Pennsylvania respectfully requests that a Writ of Certiorari issue to review the decision below. 1300 Chestnut St. Phila., Pa. 19107 (215) 876-6010 Respectfully submitted, © 8. Dern ERIC B, HENSON Deputy District Attorney Law Division (Counsel of Record) MARK S. GUREVITZ Assistant District Attorney GAELE McLAUGHLIN BARTHOLD Assistant Chief Appeals Division EDWARD G. RENDELL District Attorney Philadelphia County 21 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0019%3A1. Public record. Not legal advice.