Petition — Maier v. United States

Office-Supreme Court, U.S.

FiLhLED

82-1361

FEB 5 1983

No.

4d dicts TS

CLERK

IN THE

Supreme Court of the Anited States

OCTOBER 1982 TERM

JON CARY MAIER,

Petitioner,

Vs .

THE UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI ON APPEAL

FROM THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

JAMES ROSENBAUM MARC G. KURZMAN

United States Attorney KURZMAN, SHAPIRO, MANAHAN

234 U.S. Courthouse & PARTRIDGE

110 South Fourth Street 601 Butler Square

Minneapolis, MN 55401 100 North Sixth Street

DANIEL SCHERMER Minneapolis, MN 55403-1579

Assistant U.S. Attorney (612) 333-4403

234 U.S. Courthouse SCOTT HARRIS

110 South Fourth Street KURZMAN, SHAPIRO, MANAHAN

Minneapolis, MN 55401 & PARTRIDGE

Attorneys for Respondent Attorneys for Petitioner

SOLICITOR GENERAL

Department of Justice

Washington, D.C. 20530

1983—Northwest Brief Printing Co., 3010 2nd St. No., Minneapolis 55411—588-7506

II.

III.

QUESTIONS PRESENTED FOR REVIEW

Whether the Court of Appeals violated

the "clearly erroneous" standard of

Fed.R.Civ.P. 52(a) when, based only

on direct testimony and contrary to

evidence adduced via cross examina-

tion, it overturned the _ factual

finding by the Magistrate and the

District Court that Defendant's truck

was not impounded pursuant to stand-

ard Minneapolis Police procedures.

Whether a post impoundment inventory

search of a vehicle which did not

comport with the standard impoundment

procedures of the local police is

violative of the Fourth Amendment.

Whether a full, nmonconsensual, war-

rantless search of an _ illegally

parked camper-truck is justified when

there is present an unlicensed re-

sponsible adult who can arrange for

removal of the camper-truck or its

contents, or who can_- otherwise

relieve police of liability for

property claims.

TABLE OF CONTENTS

Page

Es ccc cae ceesecescecccces ii

Questions Presented For Review ..............05: iv

Reports Of Opinions Delivered In The Courts Below... v

| eee Vv

Relevant Constitutional Provisions And Regulations ._ v

PE Scr UGhGecesesevcsrecccoscces 1

Argument

I. The Court of Appeals violated the clearly erron-

eous standard of Fed. R. Civ. P. 52(a) when,

based only on direct testimony and contrary to

evidence adduced via cross examination, it over-

turned the finding by the magistrate and district

court that the Minneapolis police impoundment

procedures were not followed in the instant case. 8

II. Under South Dakota v. Opperman, 428 U.S. 364

(1976), the police violated defendant’s constitu-

tional rights by conducting an inventory search

of his vehicle which did not comport with the

standard Minneapolis police impoundment pro-

TEE CR DUS NaGacesecccccccccecce 16

III. In light of the particular facts and circumstances

of the case, a full, nonconsensual, warrantless

search after impound of the camper-truck was un-

reasonable in scope and unconstitutional. ..... 20

TT CCTE LGU ese baedecssceccccccccecs 27

APPENDIX INDEX

Opinion of the Eighth Circuit Court of Appeals revers-

ing the Order of the District Court ........,.... A-1

Memorandum Order of the District Court granting De-

fendant’s Motion to Suppress Evidence .......... B-1

Report and Recommendation of Magistrate ........ C-]

i

TABLE OF AUTHORITIES

Cases:

Booker v. Special School Dist. No. 1, Minneapolis,

Minn., 585 F.2d 347, cert. denied 443 U.S. 915

ke eee eer 11

Boscarino v. Nelson, 518 F.2d 879 (7th Cir. 1975) 10

Cady v. Dombrowski, 413 U.S. 433 (1973) ....... 14, 18

Cardwell v. Lewis, 417 U.S. 583 (1974) .......... 22

Dombrowski v. Cady, 471 F.2d 280 (7th Cir. 1972),

pert GES DE; Be CASED bec backbevenncvinaws 14

Ferrero v. United States, 603 F.2d 510 (Sth Cir. 1979) 12

Graver Tank & Mfg. Co. v. Linde Air Products Co.,

336 U.S. 271 (1949), rev’d in part on other grounds,

S5e UR, GOS CRS 6 vce deccsaecvcccevnaces 10

International Travel Arrangers, Inc. v. Western Air-

lines, Inc., 623 F.2d 1255 (8th Cir.), cert. denied,

GHD UB. TORE CAPM dc cies cervens testncssses 11

Jackson v. U.S. Steel Corp., 624 F.2d 436 (3rd Cir.

PTE TEC ORE Tre eer eT Tere rr Cree 12

Jacobs v. City of New Orleans, 484 F.2d 24 (Sth Cir.

oo eee eee Pee er Cer re ret Ty tere hae 10

Jones v. United States, 362 U.S. 257 (1960) ........ 27

Kansas City Stockyards Co. of Maine v. Anderson,

ISP Fae Oe Ce Ce Fe 6 000 6e obo vavne vane 11

Layne-Minnesota p.r., Inc. v. Singer Co., 574 F.2d 429

Ce Ga CPE edad cede vaccvseeesea neues 11, 15

Norm Thompson Outfitters, Inc. v. General Motors

Corp., 448 F.2d 1293 (9th Cir. 1971) ....12, 14, 15

Pickens-Bond Constr. Co. v. United Broth. of Carpen-

ters and Joiners of America, Local 690, 586 F.2d

ee Le Re errr ree 11

Pullman-Standard v. Swint, 102 S.Ct. 1781 (1982) .. 10

Rakas v. Illinois, 439 U.S. 128 (1978) ............ 27

Sam Miller Bag Co. v. Burlington Northern, Inc., 641

a ee Lee EE 6c ho bb haces san ices cans 11

Southern Arizona York Refrigeration Co. v. Bush Mfg.

‘Co., 361 F.2d 336 (9th Cir. 1966) ............. 11

South Dakota v. Opperman, 428 U.S. 364 (1976) ...

PPO ee Ae 8, 9, 16, 17, 18, 20, 21, 22, 24, 25

State v. Hudson, 390 A.2d 509 (Me. 1978) ...... 18-19

State v. Jewell, 338 So.2d 633 (La. 1976) ....... 18, 20

Terry v. Ohio, 392 U.S. 1 (1968) ..........ee 00% 21

United Barge Co. v. Notre Dame Fleeting & Towing

Service, Inc., 568 F.2d 599 (8th Cir. 1978) ....11, 15

United States v. Chadwick, 433 U.S. 1 (1977) ......

oP GAR SoA este ener er era 20, 22, 23, 24

United States v. Dochterman, 603 F.2d 652 (8th Cir.

SCS cc ce nak eA ke Kae eae ke 10

United States v. Edwards, 577 F.2d 883 (Sth Cir.)

(en banc) cert. denied, 439 U.S. 968 (1978) ...... 21

United States v. Hellman, 556 F.2d 442 (9th Cir.

EOS peer Peres ree 18, 19

United States v. Hughes, 635 F.2d 449 (Sth Cir. 1981) 10

United States v. Jackson, 529 F.Supp. 1047 (D. Md.

| EE REAP Poeare a Bt i Pa a 18

United States v. Johnson, 570 F.2d 836 (8th Cir.

__, SRA er er ere err rrr rrr roe 10

United States v. Maier, 691 F.2d 421 (8th Cir. 1982)

PN ET EE OTe Tee Te ee Tree 7, 9, 19, 22

United States v. Munz, 352 F.2d 196 (9th Cir. 1965) 15

United States v. Wilson, 636 F.2d 1161 (8th Cir.

a rer re Tt rere Ve Bos. ahs, Bes am ar

United States v. Yellow Cab Company, 338 U.S. 338

BES ee re ee ern rer 11

Washington v. Watkins, 566 F.2d 1346 (Sth Cir.

1981) cert. denied, 102 §.Ct. 2021 (1982) ....... 10

Zenith Radio Corp. v. Hazeltine Research, Inc., 395

have bs babi eabeueee eves s 12, 15

Secondary Authorities:

i eT OE vcs Ce ee encnontoese es v, 20

a EE OEE bee io ease peenarivesseses 5

EE hn oa 64.6 oh 9 p00 0 605.6.5 6 0 20 5

ae USA. Geetton CIGD) (1) oo ecccccecccccvns 7, 14

Be Bee PE EAST oo cc 6g pee ceceeepeccuseses v

ME I vc a cncacpeneeobpene< iv, v, 8, 9

PE PSTN 4000 cti ee habsass eens 15

II LaFave, Search and Seizure: A Treatise on the

Fourth Amendment, Section. 7. 2 PP. 540-41 (1978

Se TPR TTECT TATE TOSI ELE EEE eTe 23

I,

II.

III.

QUESTIONS PRESENTED FOR REVIEW

Whether the Court of Appeals violated the “clear-

ly erroneous” standard of Fed.R.Civ.P. 52(a) when,

based only on direct testimony and contrary to evi-

dence adduced via cross examination, it overturned

the factual finding by the Magistrate and the District

Court that Defendant’s truck was not impounded

pursuant to standard Minneapolis Police procedures.

Whether a post impoundment inventory search of a

vehicle which did not comport with the standard im-

poundment procedures of the local police is violative

of the Fourth Amendment.

Whether a full, nonconsensual, warrantless search

of an illegally parked camper-truck is justified when

there is present an unlicensed responsible adult who

can arrange for removal of the camper-truck or its

contents, or who can otherwise relieve police of liabil-

ity for proverty claims.

iv

REPORTS OF OPINIONS DELIVERED IN THE COURTS

BELOW

The opinion of the United States Court of Appeals for

the Eighth Circuit is reported at 691 F.2d 421 (8th Cir.

1982) and is attached hereto as Appendix 1. The Order of

the United States District Court, District of Minnesota,

3-81CR.83, is unreported, but attached hereto as Appen-

dix 2. The Report and Recommendation of the United

States Magistrate is attached hereto as Appendix 3.

JURISDICTIONAL STATEMENT

On October 27, 1982, the United States Court of Appeals

for the Eighth Circuit filed its opinion in the instant case

reversing the District Court’s Order suppressing evidence.

On December 7, 1982, the United States Court of Appeals

for the Eighth Circuit entered its Order denying Defen-

dant’s Petition for Rehearing. 28 U.S.C. Section 1254 con-

fers on this Court jurisdiction to review the decision of the

Court of Appeals by Writ of Certiorari.

RELEVANT CONSTITUTIONAL PROVISIONS AND REG-

ULATIONS

(1) U.S. CONST. Amend. IV:

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

search and seizures, shall not be violated, and no

Warrants shall issue, but on probable cause, sup-

ported by Oath or affirmation, and particularly de-

scribing the place to be searched and the persons or

things to be seized.

(2) Fed.R.Civ.P. 52(a):

v

Findings by the Court:

(a) Effect. In all actions tried upon the facts

without a jury or with an advisory jury, the court

shall find the facts specially and state separately its

conclusions of law thereon, and judgment shall be en-

tered pursuant to Rule 58; and in granting or refus-

ing interlocutory injunctions the court shall similarly

set forth the findings of fact and conclusions of Jaw

which constitute the grounds of its action. Requests

for findings are not necessary for purposes of review.

Findings of fact shall not be set aside unless clearly

erroneous, and due regard shall be given to the op-

portunity of the trial court to judge the credibility of

the witnesses, The findings of a master, to the extent

that the court adopts them, shall be considered as

the findings of the court. If an opinion or memoran-

dum of decision is filed, it will be sufficient if the

findings of fact and conclusions of law appear there-

in. Findings of fact and conclusions of law are un-

necessary on decisions of motions under Rules 12 or

56 or any other motion except as provided in Rule

41(b).

IN THE

Supreme Court of the Anited States

No.

OCTOBER 1982 TERM

JON CARY MAIER,

Petitioner,

vs.

THE UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI ON APPEAL

FROM THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

STATEMENT OF THE CASE

On September 10, 1981, at approximately 2:00 a.m.,

Minneapolis police officers Myron Rognlie and Michael

Carey received a call to check a “slumper,” or party sleeping

in a vehicle parked at 330 East 46th Street, Minneapolis,

Minnesota (T./* 5-6). When they arrived the officers found

a pickup truck parked with its right-hand front and rear

wheels on the sidewalk (T. 6). The box of this pickup was

covered by a “topper,” or shell camper, so that the rear

portion of the truck was fully enclosed (T. 11). This en-

tire rear portion was divided into two separate, locked com-

“T” refers to transcript of hearing of pretrial motions held before

Magistrate Brian P. Short on October 26, 1981.

2

partments. The normal tail section of the pickup was

covered by a large sheet of plywood, approximately 4 feet

by 8 feet in dimension (T. 13, 15). This piece of plywood

rendered the normal tail section of the truck an enclosed,

concealed box twelve to eighteen inches in height (T. 33).

In order to gain access to this concealed compartment,

it was necessary to unlock the tailgate and pull it down

(T. 14). Secondly, the fiberglass “shell camper” attached

on top of the tail section created an upper compartment

which reached in height to the top of the cab (T. 11).

This camper top had a window at the back (T. 29) and

could be opened by unlocking and flipping up its hinged

back section (T. 13-14). The large sheet of plywood

board served as the floor of this upper locked compartment

(T. 14).

When the officers approached the truck they found the

Petitioner, Mr. Maier, asleep in the driver’s seat (T. 6).

The officers woke Mr. Maier, and in response to their

questions he identified himself and gave his address and

date of birth (T. 6). Officer Carey ran a driver’s license

check and a warrant check (T. 6). He discovered that Mr.

Maier was clear of any warrants but that his driver’s license

was under suspension (T. 7). The officers also determined

that the truck was not stolen (T. 26, Magistrate’s Findings

of Fact No. 6).

The officers instructed Mr. Maier to get out of the cab

of the truck, and told him that because his license was

under suspension they were not going to let him drive the

vehicle away (T. 7). They did not afford Mr. Maier the

opportunity to make arrangements to have the vehicle re-

moved by calling a licensed driver who could remove it

from its illegally parked location (T. 32). Officer Rognlie

3

frisked Mr. Maier for weapons, found none, and instructed

him to leave the scene (T. 7, 19; Magistrate’s Finding

No. 7). The officers took the keys for the truck, gave Mr.

Maier his remaining keys, and sent him on his way (T.

7). Throughout this incident, Mr. Maier made no

threatening remarks or jestures toward the officers (T. 19),

and the officers never saw any movement in the vehicle

which would have suggested the presence of someone else

(T. 34). While the officers could have ticketed the truck

and left it where it was, (T. 22-23), they decided instead

to search the vehicle (T. 8). The officers never issued a

citation on the truck for illegal parking (T. 22).

After Mr. Maier began walking away from the scene,

the officers commenced their search (T. 8). Mr. Maier

had not consented to this procedure, and the officers did

not afford him the option of relieving the police depart-

ment from liability for claims (T. 31-32). Officer Rogn-

lie entered and searched the unlocked cab compart-

ment of the vehicle. He saw nothing in plain view which

appeared to be contraband (T. 30). He did discover in the

cab a leather pouch, and he yelled down the street to Mr.

Maier, “Is this your purse?” (T. 21) Mr. Maier called back

that he had no “purse” (T. 21). Officer Rognlie then

found a second pouch which contained large amounts of

currency (T. 9). After finding this money, he ran after Mr.

Maier and found him down the street (T. 9). Again, Mr.

Maier denied ownership of any “purse” (T. 21), and stated

that he had been using the truck for the previous five

months, but that it belonged to a friend (T. 10). Officer

Rognlie ordered Mr. Maier to accompany him back to the

truck, and the two men walked back to the scene (T. 10).

Officer Rognlie immediately placed Mr. Maier in the

4

rear of the squad car and returned to his partner (T. 11).

Meanwhile. Officer Carey had already moved to the rear of

the truck. Looking through the window of the camper top,

he saw only some sleeping bags and what appeared to be

a rake and a cyclone fence (T. 29). Nonetheless, without

consent, exigent circumstances or a search warrant, Officer

Carey unlocked and opened the camper top compartment

with a key he had found on the front seat of the truck (Af-

fidavit in Support of Search Warrant; T. 11).

Upon opening the camper top, Officer Carey asked Of-

ficer Rognlie to “come over here” (T. 11). Officer Rognlie

did so, and later testified that he detected the smell of

what he believed was marijuana coming from the rear of

the vehicle (T. 12). However, Officer Rognlie admitted in

his testimony that he has never served on the Minneapolis

Narcotics Squad and has no training in narcotics (T. 27-

28), and he could not describe the smell of unburned mar-

ijuana or articulate why the smell he noticed in the truck

was that of unburned marijuana (T. 28; Magistrate’s Find-

ing No. 19). After the warrantless search of the camper

top portion of the truck, the officers unlocked the

truck’s tailgate so as to gain access to the concealed com-

partment below the sheet of plywood (T. 12-13; Magis-

trate’s Finding No. 19; Affidavit in Support of Application

for Search Warrant). Under the sheet of plywood, the of-

ficers found several sealed, opaque, plastic bags, one of

which Officer Rognlie squeezed (T. 13, 15). The officers

then returned to their squad car, advised Mr. Maier that he

was under arrest for “probable cause, narcotics,” and called

for a narcotics investigator (Magistrate’s Finding No. 20).

When Sgt. John J. Boulger, a Minneapolis Narcotics

Officer, arrived, Officers Rognlie and Carey explained to

him what they had found and how they had come upon

it (T. 41; Magistrate’s Finding No. 21). Sgt. Boulger pre-

pared an affidavit in support of an application for a

search warrant based solely on the information received

from Officers Rognlie and Carey (T. 42; Magistrate’s Find-

ing No. 22). The search warrant was issued by Hennepin

County Municipal Court Judge Kenneth Gill, and a

search pursuant to this warrant revealed a quantity of sus-

pected marijuana in the plastic bags within the camper

compartment of the vehicle. (T. 39; Magistrate’s Finding

No. 24). On the same day, Mr. Maier was charged by

complaint with possession with intent to distribute mari-

juana in violation of 21 U.S.C, Section 841. Federal juris-

diction in the United States District Court for the District

of Minnesota was based on 18 U.S.C. Section 3231 and

Fed.R.Crim.P. 18.

On October 28, 1981, the Defendant brought on for

hearing before Magistrate Brian Short a motion to suppress

all evidence obtained as a result of the search and seizure

of the vehicle. During the hearing on this motion, Officer

Rognlie claimed for the first time that the rear portion of

the truck had been searched out of a concern for his per-

sonal safety. (T. 11). In the report which he prepared the

night of the incident, Officer Rognlie made no mention of

this alleged concern for police protection (T. 18), and he

made no supplementary report which spoke of police safe-

ty as grounds for searching the rear of the vehicle (T. 34).

Because the space under the plywood sheet was only twelve

to eighteen inches in height, nothing unusual had been ob-

served during the course of the search, the defendant was

not carrying any weapons, and the truck was not stolen.

the Magistrate concluded that Officer Rognlie’s alleged fear

6

for his safety was not reasonable (Magistrate’s Report,

page 5).

Officer Rognlie also claimed at the hearing that the

search was an inventory search after impoundment con-

ducted in accordance with normal police procedure (T.

8), and that the truck was impounded because it was

parked on the sidewalk (T. 22). This claim was contradicted

by the police report, which set forth that the rationale for

impounding was the finding of the alleged marijuana (T.

23). Further, Officer Rognlie’s cross examination revealed

that, contrary to police regulations: the impound report

was not completed (T. 21) and/or filed (T. 22); no citation

was issued for the illegal parking which formed the alleged

basis for the impound (T. 22-23); he had no knowledge of

the standards for impounding a vehicle (T. 24) or the

standards for not impounding a vehicle (T. 25); the police

inventory form regarding the contents of the vehicle had not

been completed (T. 26-27); Minneapolis Police Form 6007,

otherwise known as a tow-sheet, was not completed prior

to the impounding of the vehicle (T. 44); the vehicle iden-

tification number was not checked through the Police Au-

to Unit prior to impounding (T. 26, 44); and Mr. Maier

was not afforded the opportunity to provide for the prompt

removal of the vehicle before the officers commenced

searching it (T. 32, 41).

After hearing the testimony of Officer Rognlie and Sgt.

Boulger, the Magistrate concluded that the established Min-

neapolis Police Department procedures for impoundment

of a vehicle had not been followed in the instant case

(Magistrate’s Finding No. 9), and recommended that

the trial court grant Defendant’s motion for an rder sup-

pressing certain physical evidence, including all uf the al-

7

leged marijuana found by the police (See Appendix 3,

Magistrate’s Report and Recommendation.) The Govern-

ment objected to the Magistrate’s findings that standard

procedures had not been followed, that Officer Rognlie’s

alleged fear for police safety was unreasonable, and that

the officers’ belief that they detected the smell of unburned

marijuana was unreasonable, (Government’s Memoran-

dum of Objections to the Magistrate’s Report and Recom-

mendations).

The district court conducted a de novo review pursuant

to 28 U.S.C. Section 636(b) (1) and embraced all but one

of the Magistrate’s findings. Specifically, the court con-

cluded that established procedures for impoundment of

a vehicle had not been followed and that Officer Rognlie’s

alleged fear for his safety was not reasonable (see Appen-

dix 2). The Court accepted the Magistrate’s recommen-

dation to suppress the physical evidence seized pursuant to

the search of the vehicle. District Court Judge Alsop found

no facts in the instant case to adequately distinguish it

from United States v. Wilson, 636 F.2d 1161 (8th Cir.

1980), in which the Eighth Circuit Court of Appeals held

that “[t]he routine search of a locked automobile trunk is

unreasonable under the Fourth Amendment.” 636 F.2d

at 1165. (See Appendix 2, p. 2.)

On appeal, the United States Court of Appeals for the

Eight Circuit reversed and remanded, United States v.

Maier, 691 F.2d 421 (8th Cir. 1982), concluding that the

facts in the instant case were quite different from those

presented in Wilson. Id. at 423. Moreover, in the court

of appeals’ view, “the record demonstrates that the initia-

tion of the search into the vehicle was in conformity with

the usual practice for inventory searches of a vehicle to be

8

impounded,” Id. at 424-25 n. 2, so that the warrantless

search was justified under South Dakota v. Opperman,

428 U.S. 364 (1967). It is from this decision of the court

of appeals that the instant petition arises.

ARGUMENT

1.

THE COURT OF APPEALS VIOLATED THE CLEARLY ER-

RONEOUS STANDARD OF FED. R. CIV. P. 52(a)

WHEN, BASED ONLY ON DIRECT TESTIMONY AND

CONTRARY TO EVIDENCE ADDUCED VIA CROSS

EXAMINATION, IT OVERTURNED THE FINDING BY

THE MAGISTRATE AND DISTRICT COURT THAT THE

MINNEAPOLIS POLICE IMPOUNDMENT PROCED-

URES WERE NOT FOLLOWED IN THE INSTANT CASE.

In recommending the suppression of the physical evi-

dence seized pursuant to the search of the truck driven by

Mr. Maier, Magistrate Brian Short made a factual finding

that the established Minneapolis Police Department proce-

dures for impoundment of a vehicle had not been fol-

lowed. Magistrate’s Finding No. 9. After de novo review,

the district court adopted this finding. See Appendix 2.

In reversing the decision of the district court, the United

States Court of Appeals for the Eighth Circuit “disagreed”

with this factual finding:

Although Maier argues that the police did not comply

with requirements of the Minneapolis ordinances for

an inventory search, and the magistrate made find-

ings consistent with Maier’s contention, we disagree

with that conclusion. . . . [T]he record demonstrates

that the initiation of the search into the vehicle was

9

in conformity with the usual practice for inventory

searches of a vehicle to be impounded.

United States v. Maier, 691 F.2d 421, 424-25 n. 2 (8th

Cir. 1982) (emphasis added). Interpreting South Dakota

v. Opperman, 428 U.S. 364 (1976), the Eighth Circuit

correctly concluded that “once a vehicle is seized and le-

gitimately taken into police custody, the routine practice

of securing and inventorying its contents is justified ... .”

691 F.2d at 423 (emphasis added). By setting aside the

finding of the Magistrate and district court that standard

impoundment procedures had not been followed, the

court of appeals was able to reconcile the search of the

vehicle in the instant case with its reading of Opperman.

The Eighth Circuit concluded that “we are satisfied

from our examination of the record that the police en-

tered the locked camper while conducting an appropriate

inventory search,” 691 F.2d at 423 n. 1 (emphasis added),

and supported this conclusion by including in its opinion

a lengthy quotation from the direct testimony of Officer

Rognlie. Id. at 424-25 n. 2.

A court of appeals is not empowered to overturn factual

findings simply because it “disagrees” with the trial court,

or because it is “satisfied” from its own examination of the

record that there is evidence supporting a conclusion con-

trary to that reached by the trial court.

According to Rule 52(a) of the Federal Rules:

Findings of fact [by a federal district court] shall not

be set aside unless clearly erroneous, and due re-

-. gard shall be given to the opportunity of ‘the trial

court to judge of the credibility of the witnesses. The

findings of a master, to the extent that the court adopts

them, shall be considered as the findings of the court.

Fed.R.Civ.P. 52(a).

10

Rule 52(a) has been extended to measure appellate review

applicable to a trial judge’s factual determination in a

criminal case, United States v. Hughes, 635 F.2d 449, 453

(Sth Cir. 1981); Washington v. Watkins, 655 F.2d 1346,

1353 (5th Cir. 1981) cert. denied 102 S.Ct. 2021 (1982);

United States v. Dochterman, 630 F.2d 652, 653 (8th Cir.

1980); United States v. Johnson, 570 F.2d 836, 838 (8th

Cir. 1978). This rule does not make exceptions or purport

to exclude certain categories of factual findings from the ob-

ligation of a court of appeals to accept a district court’s

findings unless clearly erroneous. Pullman-Standard v.

Swint, 102 S.Ct. 1781 (1982). Nor does the rule divide

facts into categories. Jd. A trial court’s findings with respect

to police officers’ conduct and adherence to regulations are

factual findings to which the “clearly erroneous” standard

applies for purposes of review. See, Boscarino v. Nelson,

518 F.2d 879 (7th Cir. 1975); Jacobs v. City of New Or-

leans, 484 F.2d 24 (Sth Cir. 1973).

As this Court long ago established, the dictates of Rule

52(a) that findings of fact not be set aside unless clearly

erroneous and that due regard be given to the opportun-

ity of the trial court to judge of the credibility of witnesses,

require that the appellate court make allowances for the

advantages possessed by the trial court in appraising the

significance of conflicting testimony. Graver Tank &

Mfg. Co. v. Linde Air Products Co., 336 U.S. 271 (1949),

rev'd in part on other grounds, 339 U.S. 605 (1950).

Where there is evidence which would support either of two

conflicting conclusions, but the trial court has decided to

weigh evidence more heavily for defendants, such a choice

between two permissible views of the weight of the evi-

11

dence is not “clearly erroneous.” United States v. Yellow

Cab Company, 338 U.S. 338 (1949); Pickens-Bond Const.

Co. v. United Broth. of Carpenters and Joiners of America,

Local 690, 586 F.2d 1234 (8th Cir. 1978); accord,

Booker v. Special School Dist. No. 1, Minneapolis, Minn.,

585 F.2d 347, cert. denied 443 U.S. 915 (8th Cir. 1978);

Sam Miller Bag Co. v. Burlington Northern, Inc., 641

F.2d 607 (8th Cir. 1981). This principle reflects an ap-

pellate court’s obligation to construe the evidence in a light

nost favorable to the appellee in determining whether the

district court’s findings were clearly erroneous. United

Barge Co, v. Notre Dame Fleeting & Towing Service, Inc.,

568 F.2d 599 (8th Cir. 1978); accord, Kansas City Stock-

yards Co. of Maine v. Anderson, 199 F.2d 91 (8th Cir.

1952); Southern Arizona York Refrigeration Co. v. Bush

Mfg. Co., 361 F.2d 336 (9th Cir. 1966).

The Court of Appeals for the Eighth Circuit itself has

noted that a court of appeals must accept the factual find-

ings of a trial court unless these findings are clearly erron-

eous, based upon a review of the entire record. Layne-

Minnesota p.r., Inc. v. Singer Co., 574 F.2d 429 (8th Cir.

1978). Nevertheless, without even citing the conflicting

“substantial evidence” within the forty-eight page record

on which the Magistrate and district court had relied, the

Eighth Circuit overturned their mutual finding that the

officers had not followed established Minneapolis Police

Department impoundment procedures. The Eight Circuit

did not assert that the finding was clearly erroneous, or

that the court was left with the definite and firm convic-

tion that a mistake had been committed by the trial court.

See, e.g., International Travel Arrangers, Inc. v. Western

Airlines, Inc., 623 F.2d 1255 (8th Cir.), cert. denied 449

12

U.S. 1063 (1980); Jackson v, U.S. Steel Corp., 624 F.2d

436 (3rd Cir. 1980); Ferrero v. United States, 603 F.2d

510 (5th Cir. 1979). Rather, the Eighth Circuit simply

“disagreed” with the trial court’s conclusion, 691 F.2d

at 424 n. 2.

It is not a function of a court of appeals to decide fac-

tual issues de novo. Zenith Radio Corp. v. Hazeltine Re-

search, Inc., 395 U.S. 100, 123 (1969). In Norm Thomp-

son Outfitters, Inc. v. General Motors Corp., 448 F.2d

1293 (9th Cir. 1971), the Ninth Circuit noted

the severe limitations imposed on an appellate court

in reviewing findings of fact... . It is not our func-

tion to reevaluate the evidence below . . . . Our task,

rather, is to determine if there exists evidence of sub-

stance to support the findings of fact of the trial

court....

Id. at 1294-95 (emphasis added). In the instant case, the

forty-eight page record of the hearing before Magistrate

Short is replete with evidence which supports the finding

by the Magistrate and district court. While the Eighth Cir-

cuit pretended that Officer Rognlie’s testimony established

that normal police procedure had been followed in im-

pounding the truck, on cross examination he admitted he

did not know what the police standards were for deter-

mining when to impound a vehicle (T. 24) or when not

to impound (T. 25), or even what procedures should be

followed before ordering an impound (T. 25).

Had Officer Ronglie been familiar with the Minneapolis

Police Department Manual’s standards for impounding and

not impounding vehicles, he would have known that the

vehicle driven by Mr. Maier should not have been im-

pounded. See the 6-800 Series of the Manual which ad-

13

dresses impound procedures and was introduced as

Government’s Exhibit 1.

As the record and the Magistrate’s Findings of Fact

reflect, the officers were informed that Mr. Maier had

been using his friend’s truck for the previous five months

(T. 10), Mr. Maier was clear of any warrants (T. 7), and

the truck was not stolen (T. 26, Magistrate’s Finding No.

6). Under the circumstances, proper police procedures dic-

tated that Mr. Maier be afforded an opportunity to ar-

range for the prompt removal of the truck from its im-

properly parked location. Further, under United States v.

Wilson, 636 F.2d 1161 (8th Cir. 1980), the police should

have at Jeast inquired whether Mr. Maier would relieve

them of liability for claims, thus obviating the need for a

search even /f the vehicle was seized. Id. at 1165.

Officer Rognlie’s cross examination also revealed that,

contrary to the dictates of the Minneapolis Police Depart-

ment Manual, the vehicle identification number was not

checked through the Police Auto Unit prior to impound-

ing (Government’s Exhibit 1, section 6-803); Minneapolis

Police Form 6007, otherwise known as a tow-sheet, was

not completed prior to the impounding of the vehicle

(Id.); the police inventory form (Form 6008) regarding the

contents of the vehicle was never completed (Government’s

Exhibit 1. section 6-811); and an impound report had not

been completed and/or filed as required (Government's

Exhibit 1, section 6-806). Moreover, while Officer Rognlie

claimed at one point that the truck was impounded be-

cause it was parked on the sidewalk (T, 22), he later ad-

mitted that the rationale for impounding which the officers

set forth in the police report was the finding of the alleged

marijuana (T. 23). He also admitted that no citation ever

wes issued for illegal parking (T. 22-23).

14

Having had the opportunity to examine the relevant por-

tion of the Minneapolis Police Department Manual and

to hear the witnesses and judge their credibility, the Magis-

trate found that the established Minneapolis Police De-

partment procedures for impoundment of a vehicle were

not followed. Magistrate’s Finding No. 9. The Govern-

ment objected to this finding, but the district court, after

its de novo review pursuant to 28 U.S.C. Section 636(b)

(1), embraced the Magistrate’s determination. While it is

beyond question that “there exists evidence of substance

to support the findings of fact of the trial court,” Norm

Thompson Outfitters, Inc. v. General Motors Corp., 448

F.2d at 1294-95, the Eighth Circuit apparently ignored

this evidence.

In Cady v. Dombrowski, 413 U.S. 433 (1973), as in the

case at bar, the Court of Appeals for the Seventh Circuit

simply overturned factual findings of a district court with-

out any showing that said findings were clearly erron-

eous. Dombrowski v. Cady, 471 F.2d 280, 283 (7th Cir.

1972), rev’d, 413 U.S. 433 (1973). As this Court stated in

reversing the Seventh Circuit’s decision:

While that Court [of Appeals] was obligated to exer-

cise its independent judgment on the underlying con-

stitutional issue presented by the facts of this case, it

was not free on this record to disregard these findings

of fact. . . . We believe that the Court of Appeals

should have accepted, as did the state courts and the

District Court, the findings with respect to Officer

Weiss’ specific motivation and the fact that the pro-

cedure he followed was “standard.”

413 US. at 443.

The Eighth Circuit Court of Appeals should not be free

simply to disregard the district court’s findings of fact.

15

When, as in the instant case, there is evidence of substance

to support a particular finding, the court of appeals is

obligated to accept it. Norm Thompson Outfitters, supra.

“If, on the other hand, such finding of fact is ‘clearly er-

roneous,’ it is the duty of this court [of appeals] to so de-

clare.” United States v. Munz, 352 F.2d 196, 198 (9th

Cir. 1965) (emphasis added). In the instant case, as in

Cady, the court of appeals failed to do either.

It is apparent that the Eighth Circuit abused its author-

ity in reviewing the district court’s decision by failing to

review the entire record before it, Layne-Minnesota p.r.,

Inc. v. Singer Company, 574 F.2d 429 (8th Cir, 1978), by

failing to construe the evidence within the record in the

light most favorable to the appellee, United Barge Com-

pany v. Notre Dame Fleeting & Towing Service, Inc., 568

F.2d 599 (8th Cir. 1978), and by deciding the factual is-

sues in this case de novo, Zenith Radio Corp. v. Hazeltine

Research, Inc., 395 U.S. 100 (1969), This Court should

state with precision the duties and obligations of the

courts of appeals with respect to their review of factual

findings, and should reinstate the factual finding by the

Magistrate and district court that the Minneapolis Police

Department standard impoundment procedures were not

followed in the instant case.

16

UNDER SOUTH DAKOTA V. OPPERMAN, 428 U.S. 364

(1976), THE POLICE VIOLATED DEFENDANT'S CON-

STITUTIONAL RIGHTS BY CONDUCTING AN INVEN-

TORY SEARCH OF HIS VEHICLE WHICH DID NOT

COMPORT WITH THE STANDARD MINNEAPOLIS

POLICE IMPOUNDMENT PROCEDURES.

In South Dakota v. Opperman, 428 U.S. 364 (1976),

this Court made clear throughout its opinion that the law

of that case applies only after a proper impoundment pro-

cedure has occurred in accordance with standard proce-

dures in the local police department.

At the officer’s direction, the car door was then un-

locked and, using a standard inventory form pursuant

to standard police procedures, the officer inventoried

the contents of the car... . 428 U.S. at 366 (em-

phasis added).

* * *

The decisions of this Court point unmistakenly to the

conclusion reached by both federal and state courts

that inventories pursuant to standard police proce-

dures are reasonable. Id. at 372 (emphasis added).

* * *

In applying the reasonableness standard [of the

Fourth Amendment] adopted by the Framers, this

Court has consistently sustained police intrusions into

automobiles impounded or otherwise in lawful police

custody where the process is aimed at securing or pro-

tecting the car and its contents. 7d. at 373 (emphasis

added).

* bod *”

The Court carefully noted that the protective search

{in Cady v. Dombrowski, 413 U.S. 433 (1973)] was

17

carried out in accordance with standard procedures

in the local police department, . . . a factor tending

to ensure that the intrusion would be limited in

scope to the extent necessary to carry out the care-

taking function. Jd. at 375 (emphasis in original;

emphasis added).

Finally, Mr. Chief Justice Burger stated that:

On this record we conclude that in following standard

police procedures, . . . the conduct of the police was

not “unreasonable” under the Fourth Amendment.

Id. at 376 (emphasis added).

In his concurring opinion in Opperman, Mr. Justice

Powell went to great lengths in stressing the importance of

adherence to standard local police impoundment proce-

dures:

As the Court’s opinion emphasizes, the search here

was limited to an inventory of the unoccupied auto-

mobile and was conducted strictly in accord with the

regulations of the Vermillion Police Department.

428 U.S. at 380 (emphasis added).

* * *

I agree with the Court that the Constitution permits

routine inventory searches . . . . Id. (emphasis ad-

ded).

In distinguishing proper inventory searches from those

searches which require a warrant, Mr. Justice Powell

noted:

Inventory searches are conducted in accordance with

established police department rule or policy and oc-

cur whenever an automobile is seized. 7d. at 383

(emphasis added).

18

Strict adherence to local police impoundment procedures

ensures the validity of warrantless inventory searches in a

number of ways. If all inventory searches in a particular

locale are conducted in strict compliance with established

police department policy, there is little danger that any

particular inventory search will in fact be conducted as a

subterfuge for criminal investigation so as to avoid the

more stringent requirements which apply to criminal in-

vestigative searches, Opperman, 428 U.S. at 376. Fur-

ther, uniform adherence to proper department standards

for inventory searches prevents hindsight from affecting the

judicial evaluation of the reasonableness of any particular

search. If a search has been conducted in strict accordance

with standard police department procedures and yields in-

criminating evidence valuable in a subsequent criminal

proceeding, there is little risk that the criminal court will

be faced with a “hindsight justification” for the search.

Id. at 383 (Powell, concurring). Finally, adherence to

standard procedures tends to ensure that police officers

will limit the scope of their inventory searches to the ex-

tent necessary to carry out their “community caretaking

functions,” Opperman, 428 U.S. at 375; see, Cady v. Dom-

browski, 413 U.S. at 441, and it is these caretaking func-

tions which justify warrantless intrusions by the police de-

partment. Opperman, 428 U.S. at 369-71.

In both federal and state courts, inventory searches have

been invalidated because they were not conducted pursuant

to standard impoundment procedures of the respective lo-

cal police departments. See, e.g., United States v. Hellman,

556 F.2d 442, 444 (9th Cir. 1977); United States v. Jack-

son, 529 F.Supp. 1047, 1055 (D. Md. 1981); State v.

Jewell, 338 So.2d 633, 639 (La. 1976); State v. Hudson,

19

390 A.2d 509, 511 (Me. 1978) (remanded to allow proof

that inventory was carried out pursuant to standard local

practice). In Hellman, the government contended that it

was enough that an inventory practice was a routine part

of impoundment procedures in most police departments

throughout the country, but the Ninth Circuit disagreed:

The fact that other police departments routinely fol-

low such a practice may give support to the proposi-

tion that such a practice, if locally followed, is reason-

able. It does not, however, render reasonable a search

where the inventorying practice is not locally followed

and the search, thus, is a departure from local prac-

tice. A locally followed practice gives some assur-

ance that the particular car was not singled out for

special searching attention.

United States v. Hellman, 556 F.2d at 444.

In the instant case, the Magistrate and district court

properly concluded that the established Minneapolis Police

Department procedures for impoundment of a vehicle were

not followed. (Magistrate’s Finding No. 9; see Appendices 1

and 2; see Argument I above.) While the court of ap-

peals “disagreed” with this conclusion, United States v.

Maier, 691 F.2d at 424 n. 2, its opinion suggests that the

Eighth Circuit did not properly consider the cross examina-

tion of the officers or the specific Minneapolis Police De-

partment policies (see Government’s Exhibit 1) regarding

impoundment. Under Opperman, the search of the truck

driven by Mr. Maier violated the Fourth Amendment, and

the evidence discovered in the course of that search should

be suppressed.

20

IN LIGHT OF THE PARTICULAR FACTS AND CIRCUM-

STANCES OF THE CASE, A FULL, NONCONSENSUAL,

WARRANTLESS SEARCH AFTER IMPOUND OF THE

CAMPER-TRUCK WAS UNREASONABLE IN SCOPE

AND UNCONSTITUTIONAL.

Even if this Court upholds the Eighth Circuit’s conclu-

sion that the search of the truck complied with standard

Minneapolis police impoundment procedures, the search

was unreasonable in scope and violated Mr. Maier’s con-

stitutional rights, “Unconstitutional searches cannot be con-

stitutionalized by standardizing them as a part of normal

police practices.” State v. Jewe'l, 338 So.2d 633, 640 (La.

1976). While this Court has recognized the constitutional-

ity of routine inventory searches conducted without a war-

rant, United States v. Chadwick, 433 U.S. 1, 10 n. 5

(1977); South Dakota v. Opperman, 428 U.S. 364, 376

(1976), the Fourth Amendment remains relevant to this

type of search. An inventory search must be reasonable

within the meaning of the Fourth Amendment in light of

the facts and circumstances of the particular case. See

South Dakota v. Opperman, 428 U.S. at 375.

The Fourth Amendment’s “reasonableness” standard

requires that an inventory search be limited in scope. In

Opperman, Mr. Chief Justice Burger stressed that adher-

ence to standard police procedures ensures that intrusions

are limited in scope to the extent necessary to carry out

the caretaking function, 428 U.S. at 375, and specifically

noted in validating the search of Opperman’s vehicle that

“(t]he inventory was not unreasonable in scope.” Id. at

376 n. 10. In his concurring opinion, Mr. Justice Powell

21

also noted that “the unrestrained search of an automobile

and its contents would constitute a serious intrusion upon

the privacy of the individual in many circumstances.”

Id. at 379-80 (Powell, J., concurring; emphasis added);

accord, United States v. Edwards, 577 F.2d 883, 893

(Sth Cir.) (en banc) cert. denied, 439 U.S. 968 (1978);

United States v. Wilson, 636 F.2d 1161, 1163 (8th Cir.

1980). See also Terry v. Ohio, 392 U.S.1, 18-19 (1968).

To determine whether the scope of a search is reason-

able, the governmental interests advanced by the inventory

search must be weighed against the privacy interest in-

vaded in light of the particular circumstances of the case.

United States vs. Wilson, 636 F.2d at 1163.

Three governmental interests have been advanced to jus-

tify inventory searches:

(1) “The protection of the owner’s property while

it remains in police custody”;

(2) “The protection of the police against claims or

disputes over lost or stolen property”; and

(3) “The protection of the police from potential

danger.”

South Dakota v. Opperman, 428 U.S. at 369. In the in-

stant case, the court of appeals concluded that the first

of these interests justified a thorough search of the truck,

including its locked camper/sleeper portion.

After discovering the large amount of money in the

cab, and in light of the absence of the owner, the

need under Opperman for a reasonable police proce-

dure for “protection of the owner’s property” justified

police in examining and making an inventory of the

entire vehicle, including the locked camper, to ensure

22

that any other valuable property would be recorded

and kept safe.

United States v. Maier, 691 F.2d at 425. Petitioner con-

tends that such a search was unreasonable in scope in light

of his greater expectation of privacy in the locked rear com-

partments of the truck and in view of the particular facts

of this case.

Warrantless examinations of automobiles have been up-

held in circumstances under which a search of a home or

office would be invalid. South Dakota v. Opperman, 428

U.S. at 367. The distinction rests on the principle that:

One has a lesser expectation of privacy in a motor

vehicle because its function is transportation and it

seldom serves as one’s residence or as the respository

of personal effects... . It travels public thorough-

fares where both its occupants and its contents are

in plain view.

Id. at 368, quoting Cardwell v. Lewis, 417 U.S. 583, 590

(1974) (emphasis added). While this principle was ap-

plicable to the car in Opperman and justified the search

of its cab and glove compartment, the same principle does

not apply to the particular vehicle in the instant case and

does not extend to a locked and concealed storage com-

partment such as that in the rear of Mr. Maier’s truck.

In United States v. Chadwick, 433 U.S. 1 (1977), this

Court distinguished the search of a locked footlocker in

a car from the search of the automobile itself because the

placing of personal effects in the footlocker manifested a

greater expectation that the contents would remain free

from public examination. 433 U.S. at 11. Like the foot-

locker in Chadwick, both rear compartments of the truck

23

driven by Maier were locked and the contents of the bot-

tom compartment were concealed from outside viewing.

In United States v. Wilson, 636 F.2d 1161 (8th Cir.

1980), the Eighth Circuit extended Chadwick and held

that an individual may justifiably have a greater expecta-

tion of privacy in the locked trunk of a car than in the

interior of the vehicle. 636 F.2d at 1164. The Eighth Cir-

cuit found persuasive the analysis by Professor LaFave:

The Court in Chadwick declared that a person’s ex-

pectation of privacy in personal luggage is substantial

as “luggage is intended as a repository of personal

effects.” But the trunk of a car is also intended as

such a repository, and thus it is not apparent why,

if “[b]y placing personal effects inside a double

locked footlocker, respondents [in Chadwick] mani-

fested an expectation that the contents would remain

free from public examination,” there is not the same

expectation when effects are secured in the locked

truck of a car. It will not suffice to point to what the

Court in Chadwick called “the diminished expecta-

tion of privacy which surrounds the automobile,” for

the reasons given for that reduced expectation are

inapplicable to the locked trunk—its contents are not

in plain view, looking within the trunk would not

“ordinarily be perinissible in order to ensure the run-

ning safety of a car” and an impounded car and its

contents may be adequately protected without intrud-

ing into a locked trunk.

636 F.2d at 164, quoting Il LaFave, Search and Seizure:

A Treatis on the Fourth Amendment, Section 7.2, pp.

540-41 (1978 and Supp. 1980). This argument applies

with equal weight to the locked and concealed lower stor-

age compartment of the truck driven by Mr. Maier. Once

24

Officers Rognlie and Carey looked in the window of the

camper top, it was clear to them that there was a locked

and concealed storage area below the plywood board

which manifested an expectation that the personal effects

therein would remain free from examination. Because the

reasonableness of an inventory is tied to the specific areas

searched, South Dakota v. Opperman, 428 U.S. at 376

n. 10, the analysis in Opperman will not lend support to a

routine inventory search of the locked lower storage com-

partment of the truck driven by Mr. Maier.

Petitioner was entitled to the protection of the Warrant

Clause with the evaluation of a neutral magistrate before

his privacy interests in the contents of the locked and con-

cealed storage area were invaded. United States v. Chad-

wick, 433 U.S. at 15-16. Moreover, while Opperman gen-

erally suggests that police officers may search any “win-

dowed” compartments of a vehicle since the contents of

these compartments are in plain view as the vehicle travels

the streets, 428 U.S. at 368, such a principle does not ap-

ply to the camper top compartment of the truck driven by

Mr. Maier. While the camper top section contained a

window through which the police officers could view its

contents, those contents and the circumstances surround-

ing their investigation provided notice to the officers that

Mr. Maier possessed a greater expectation of privacy re-

garding this vehicle than is normally the case.

When Officers Rognlie and Carey commenced their in-

vestigation, it was two o’clock in the morning. They found

Mr. Maier asleep in the truck, and the truck was pulled

far off the thoroughfare. The officers established that there

were no warrants out for Mr. Maier’s arrest and that the

truck was not stolen, and Mr Maier informed them that

25

the vehicle belonged to a friend but that he, Maier, had

been using it for the previous five months. The truck

had a “shell camper” attached in the rear, and when the

officers looked through the back window, they could see

sleeping bags in the camper/sleeper section. By looking

through the rear window, the officers could also see that

the truck had been further modified so as to create a con-

cealed storage compartment under the sleeper section.

While a motor vehicle “seldom serves as one’s residence or

as the repository of personal effects,” South Dakota v.

Opperman, 428 U.S. at 368, Officers Rognlie and Carey

had sufficient information to realize that this truck func-

tioned not simply as a mode of transportation, but as a

temporary residence/sleeping compartment for Mr. Maier.

[While Mr. Maier had been sleeping in the cab of the truck

rather than the camper/sleeper portion, this simply may

have been due to the weather on the night in question.

The incident occurred on a night in early September, Mr.

Maier was wearing only a pair of shorts and a tank top

while he slept, and his feet were dangling out the open

window of the cab when the police arrived (T. 5-6). Thus,

Mr. Maier may have been avoiding the heat of the camper

compartment on this particular night.] In this instance, the

view through the rear window informed the officers that

they were not at liberty to intrude upon this compartment

of the vehicle. Under the facts and circumstances of this

case, an inventory search, if appropriate at all, should have

been limited to the cab of the vehicle.

Further facts of this case make the search of the locked

rear compartment especially unreasonable. In Opperman,

this Court partially justified the inventory search because

“(t]he owner having left his car illegally parked for an

26

extended period, and thus subject to impoundment, was

not present to make other arrangements for the safe-

keeping of his belongings.” 428 U.S. at 375. In United

States v. Wilson, 636 F.2d 1161 (1980), the Eighth Circuit

invalidated a search in part because:

Wilson was present during the search and capable of

making other arrangements to safeguard his property.

The police could have protected their interests as well

as Wilson’s without intruding into the privacy of the

automobile trunk. The police, for example, could have

asked for Wilson’s consent to search the car, or in the

alternative, requested that Wilson arrange to remove

the car himself or to relieve police from liability for

claims. In addition, the police could have inventoried

the locked trunk as a single unit.

636 F.2d at 1165. In the case at bar, the Eighth Circuit

distinguished Wilson by emphasizing that “Maier was

alone without a valid driver’s license. and no responsible

person available to remove the truck from the sidewalk.”

691 F.2d at 424, This conclusion reflects a misconstruc-

tion of both facts and law.

The record reflects that Mr. Maier himself was an avail-

able and responsible person who could have arranged to

remove the truck or relieved the police from liability for

claims. While Mr. Maier disclaimed ownership of the vehi-

cle, he indicated to the police that he had been using the

truck for the previous five months. Thus, Mr. Maier as-

serted a credible possessory interest and was certainly

available to make arrangements for the removal of the

vehicle from the sidewalk.

This Court has indicated that a possessory interest in an

automobile is sufficient to raise an expectation of privacy.

27

Rakas v. Illinois, 439 U.S. 128, 148-49 (1978); Jones v.

United States, 362 U.S. 257 (1960). Officers Rognlie and

Carey knew that the truck was not stolen, knew that there

was no warrant out for Mr. Maier’s arrest, and had no

reason to question his possession of the truck. Under the

circumstances, Mr. Maier’s status was identical to that of

the defendant in Wilson insofar as making arrangements

for removal of the vehicle so as to ensure the security of its

contents. See United States v. Wilson, 636 F.2d at 1165-

66. The case at bar is indistinguishable on its facts from

Wilson, and the district court was correct in concluding

that the inventory search of the camper-truck driven by

Mr. Maier was unreasonable under the Fourth Amend-

ment.

CONCLUSION

For the reasons set forth above, this Court should de-

clare the search of the truck driven by Petitioner violative

of his constitutional rights and should reverse the judg-

ment of the Eighth Circuit.

MARC G. KURZMAN

SCOTT G. HARRIS

KURZMAN, SHAPIRO, MANAHAN & PARTRIDGE

601 Butler Square

100 North Sixth Street

Minneapolis, MN 55403-1579

(612) 333-4403

Attorneys for Petitioners