Petition — Kline v. Louisiana

82-1480

NO.

IN THE

KF I

MAR

Office -Supreme Court, U.S.

LED

$ 1063

ALEXANDER L. STEVAS,

CLERK

SUPREME COURT OF THE UNITED STATES

1983 TERM

DAVID KLINE

Petitioner,

Versus

STATE OF LOUISIANA,

Respondent.

ON WRIT OF CERTIORAKI TO THE

SUPREME COURT OF LOUISIANA

PETITION FOR WRIT OF CERTIORARI

ELLIS & ELLIS

Carey J. Ellis, Jr., Esquire

P. O. Box 688

105 South Julia Street

Rayville, Louisiana 71269

Phone 318-728-2043

Counsel for Petitioner

yavid iline, a citizen of the ‘cate of

Louisiana ard of the United frvates, prays

that a 'lrit of Certiorari issue to review

the Judeme:t of the Supreme Court of the

State of Louisiana on December 1, 139i,

affirmine the conviction ani sentence of

vour petitioner in a criminal case.

Ouestionus Presented for Review

(1) Cau a peace officer conduct a

search and seizure of a local

citizen's vehicle basec on a

three dav old tin from an in-

formant wichout first ohtainins

&@ search warrant from either of

two resicent judaes?

(<) Is it an unlawful intrusion upon

a partv's riant to be free fron

goverirental interference when

a peace officer in a clearly

marked police car awaits the

return from work of a local truck

Griver at 3:)9 A.M. and then

(3)

effects a warrantless scarci of

is vehicle?

Does the mere observation of a gun

case in a local citizen's stcpred

venicle constitute a "plain view’

exception to the warrant require-

ment, absent exigent circumstances?

List of Parties to Proceeding

David Kline - Petitioner

State of Louisiana - Prosecutina

authority and Respondent

lionorable Lowen 3B. Loftin, District

Attorney in and for the Fifth

District Court, State of Louisiana,

Parish of Franklin

Honorable EE. R. McIntyre, Jr.,

Assistant District Attorney in

the above district.

TABLE OF CONTENTS

Questions Presented

List of Parties to Proceedings

Official Report of Case

Grounds on which Jurisdiction of

United States Supreme Court

is Invoked

Constitutional Provisions Involved

Statement of the Case

Argument

TABLE OF AUTHORITIES

Etatutory

28 U.S.C. 1257 (3)

28 U.S.C. 2101

Louisiana Revised Ctatutes 14:95.1

Cases

Carroll vs. United €tates, 267

U.S. 132, 45 &.Ct. 280 (1925)

Chambers vs. Maroney, 399 U.S. 42

990 S.Ct. (1975)

Coolidge vs. wew Kampshire, 403

U.S. 443, 91 €.Ct. 2922

(1971)

State vs. Crosby, 388 So. (2d)

564 (1976)

United States vs. Ross, 102 §.

Ct. 2157 (1982)

Official Report of the Case

The Memorandum Decision of the

Louisiana Supreme Court affirmina peti-

tioner's conviction sought to be reviewed

herein is reported at Vol. 424, Southern

Reporter (2nd) #82-KA-9U5U, the Appli-

cation for Rehearing having been denied

on January 7, 19uU3 (One Dissent).

Grounds on which Jurisdiction of

United States Supreme Court Invoked

Tie Louisiana fupreme Court affirmed

the conviction of the defendant of the

offense of "Possession of a Firearm

after a Prior Conviction of Simple Eur-

glary" by way of 'emorandum Decision

entered December 1, 1982. An Applica-

tion for Rehearing was timely filed and

was denied on January 7, 1983, followed

by a 60 day Stay Order of Lxecution ren-

dered January 17, 1983. The jurisdiction

of this iionorable Court is invoked under

26 U.S.C. Sec. 1257 (3) and 28 U.S.C.

Sec. 2101.

Constitutional Provisions Involved

The principal consitutional provision

involved in this case is the Fourth Amend-

ment to the United ¢tates Constitution

requiring a warrant based on probable

cause for the search and seizure of a

person's belongings.

Statement of the Case

This case involves a warrantless

arrest of the defendant and a warrant-

less search of his vehicle and seizure

of an encased firearm, after the vehicle

was stopped by a peace officer at 3:90

A.M. in the morning. The warrantless

action taken by the peace officer was

based upon a tip received some three

days previously by an informant to the

effect that the defendant carried a

firearm in his truck when returning home

after work in the wee hours of the morn-

ing.

—

For some time prior to January 9, 1981,

the defendant, David Kline was employed

by ‘khompson Trucking Company of !'linnsboro,

Louisiana as a driver of a transport

truck. iis driving routes for his

employer originated from the Town of

Winnsboro to various points of delivery

and pickup of cargo material in various

towns and cities of wortheast Louisiana

and adjoining States and then return to

Winnsboro. lis invariable sechedule,

or routine, was to depart from Winnsboro

at 2:00 in the afternoon and return to

Winnsboro around 3:90 or 3:30 o'clock

the following morning. Deputy Sheriff

Larry Crum was completelv familiar with

the defendant's daily work routine, as

the following excerpt from his testimony

on cross-examination demonstrates:

Q. You knew he worked for W. bh. Thomp-

son and drove a transport truck?

A. Yes Sir.

9. And that he made daily trins from

Yinnsboro to other places and would

return early in the morning hours, you

knew that didn't you?

A. Yes Sir, I did.

(See ‘ranscript, Pages 24-25)

At about 3:90 o'clock A.'1. on the

morning of January 9, 1931, the defendant

returned to “linnsboro in his emplover's

transport truck and parkec it in the

parking area provided for the vehicle.

lie then got into his own pickup truck

and started driving toward his ‘ome a

few miles Worth of "Jinnsboro. Deputy

Crum was in his official car parked on

the street a short distance away, where

he had been waiting for some time. When

the defendant drove by, Deputy Crum drove

his car in behind the defendant's truck

and after following for some little dis-

tance, the defendant pulled over and

stopped his truck and Deputy Crum did

the same. Deputy Crum then looked in

the cab of defendant's truck and saw a

"black case" that he “recognized as a

pistol case". Upon heinag asked about it,

the defendant stated that his pistol was

in the case. Deputy Crum then removed

the case from the vehicle, unzipped it

and found a “long barrel revolver"

therein which he retrieved and kept.

Deputy Crum then arrested the defendant

for Possession of a Firearm while on

probation for a previous offense and

advised him of his rights.

At the time of stoprning of defendant's

truck by Deputy Crum and his retrieval

of the pistol from the cab thereof, there

was no warrant for the search and seizure

of evidence from the defendant's truck in

the manner set out hereinabove. ‘ie

alleged basis for the search, seizure

and arrest was information Deputy Crum

testified he had received from a confi-

dential informant. lowever, he admitted

that this information had been given to

him about THREE DAYE PRIOR TO HIS SEARCH

AND SEIZURE OF DEFENDANT'S TRUCK. the

following excerpt from Dy. Crum's testi-

mony at the hearing on the iHMotion to

Suppress (on cross-examination) estab-

lishes his prior knowledae as well as

his weak explanation of no prior action

thereon:

9. but the information you had which

led to your staking out and waiting for

Mr. line, you had a full three days

ahead of time, from the tine that you

did actually stop him and actually make

the search and seizure, whether he stop-

ed because of you or whether you stopped

him?

A. Yes Sir.

Q. ‘There are two Judges here in ‘“iinns-

boro authorized to execute warrants, so

it wasn't a matter of having to execute

a warrant that night, you had the infor-

mation you felt you needed to give you

probable cause three davs ahead of this

search and seizure, did you not?

A. As I stated earlier, I didn't intend

to stop or search him, I was just look-

ing to see how he was. I hadn't seen

Mr. Kline in several days. I parked

there to see what his actions were as

he left work. (See Transcript, Page 26)

(Comment: AT 3:00 O'CLOCK IN THE MORN-

ING?!)

19

After his arrest, the defendant was

eventually charaed by Lill of Information

filed on June 12, 1981 with the offense

of Possession of a Firearm after having

been convicted of burglary on October 20,

1980, a felony in the State of Louisiana,

as per Revised Statutes 14:95.1.

Prior to trial, defendant, through

undersigned counsel, timely filed a

Motion to Suppress evidence based upon

the warrantless stopping and searching

ef the truck in which he was riding as

set out hereinabove. This Motion to Sup-

press was tried on Wovmeher 25, 1981, with

testimony put on by the State (which

admittedly has the burden of proof) being

recorded and later transcribed as the

Note of Lvidence in this case. ‘he trial

judge overruled the Ilotion to Suppress,

to which ruling the defendant noted an

objection.

11

On February 19, 1982, the tate moved

that the bill of Information previously

filed be arended to "Attempted Possession

of a Pirearn by a Convicted Felon". ‘the

defendant, through counsel, then withdrew

his former plea of ijot Guilty and entered

a plea of Guilty to the reduced charge,

with the reservation of the right to

appeal the adverse ruling of the Court on

the Notion to Suppress, as permitted by

the rule of State vs. Crosby, 3&C £o. (2d)

564 (1976). Then the Court sentenced the

defendant to one and one-half years at

hard labor under the supervision of the

Department of Corrections. An anpeal to

the Louisiana Supreme Court was taken by

defendant and timely filed therein. In-

cluded in the record of that apneal was

an Assignment of DCrror filed by counsel

for the defendant based upon the trial

judge's overruling of defendant's lotion

to fuppress prior to trial.

ARGUMEWT

Nay It Please The Court:

As set out in the Statement of the Case

hereinabove, this case presents the ques-

tion of the validity of a warrantless

search of a person's vehicle based upon

a tip from an informant received three

(3) days earlier. By his own admission,

the peace officer in question was com-

pletely familiar with the defendant's

daily work routine, and he was also well

aware that there were two district judges

residing in the small town of Winnsboro

available for obtaining the required

search warrant. Yet he gave no explana-

tion for his failure to obtain a warrant.

Since defendant's conviction was affirmed

by Memorandum decision, we have no writ-

ten opinion of the Louisiana Supreme

Court from which to deduce any basis for

the Court's excusing the obtaining of a

warrant. From the Briefs filed by the

13

Prosecution, it was contended that the

automobile exception to the warrant re-

quirement applied to the case and that

the "plain view" doctrine also applied.

Ne submit that neither of these are

applicable to this case and that the

Louisiana Supreme Court erred in failing

to reverse the lower court's ruling on

defendant's Motion to Sunpress.

ihe Automobile Exception

- ine "Carroll" Doctrine

Vhis Txception harks back to Carroll

vs. U.S., 267 U.S. 132, 45 £.Ct. 289

(1925) where officers having probable

cause made a warrantless search of a car

on a public hiahway which vielded contra-

band liquor. ‘this narrow exception to

the warrant requirement has been inter-

preted and embellished by numerous deci-

sions of this Honorable Court. jot only

must there exist probable cause on the part

of the arrestine officers, but exigent

14

circumstances must also be present in

order for this automobile exception to

be invoked. In Carroll, the basis for

the creation of the exception was shown

by the following reasoning of the Court:

tO we ot Oe ee oe © © oc o otnere 18 a

necessary difference between a search

of a store, dwelling house, or other

structure in respect of which a proper

official warrant readily may be obtained

and a search of a shin, motor boat,

wagon, Or automobile for contraband

goods, where it is not practicable to

secure a warrant because the vehicle

can be quickly moved out of the local-

ity or jurisdiction in which the warrant

must be soucht." See 267 U.S. 132, 153,

45 §.Ct. 280, 235.

Demonstratine the continuation of the

exception over the years, the following

excerpt is taken from Your Honors deci-

sion in Coolidge vs. iiew lLampshire,

£03 U.£. 443, 91 €.Ct. 2022 (1971):

"As we said in Chambers, supra, ...

* «© © « « « exigent circumstances’

justified the warrantless search of

‘an automobile stopped on the highway'

where there is probable cause, because

the car is ‘movable, the occupants are

alerted, and the car's contents may

15

never be found again if a warrant must

be obtained. 7 8 = ° . 7 . + = -the

opportunity to search is fleeting’

(Chambers vs. Maroney, 399 U.S. 42,

Ss. = .

Vnis is not a case in which the auto-

mobile exception applies in any sense of

the word. ‘le are dealing here with "home

folks" in a small town, each well known

to the other. Deputy Crum was completely

familiar with defendant's working routine,

as he admitted, and yet failed to obtain

a warrant although he had ample time and

opportunity to do so. ‘the following ex-

cerpt from this lionorable Court's Opinion

in Coolidge is extremely apropos:

"(13) The word ‘automobile’ is not

a talisman in whose presence the

Fourth Amendment fades away and dis-

appears. And surely there is nothing

in this case to invoke the meaning

and purpose of the rule of Caroll vs.

United States - no alerted criminal

bent on flight, no fleeting opportunity

on an open highway after a hazardous

chase, no contraband, no stolen goods

or weapons, no confederates waiting to

move the evidence, not even the incon-

venience of a special police detailed

to guard the mobilized automobile. In

short, by no possible stretch of the

16

legal imagination can this be made

into a case where ‘it is not practi-

cable to secure a warrant’... . °

- « e'and the automobile exception’,

despite its label, is simply irrele-

vant." See 493 U.f. 493, ve me

S.Ct. 2922, 2035-2936.

Undersigned counsel is aware of Your

Monors' recent decision in United States

vs. Ross, 192 §.Ct. 2157 (1982) where the

“automobile exception" was extended to

include the right to search containers

found in an automobile leqitimately

stopped by peace officers under the

Carroll Doctrine. liowever, in our appre-

ciation, Ross does not apply to a case

in which the “automobile exception" is

entirely absent, as in Coolidge and as in

the instant case.

She "Plain View" Doctrine

The prosecution contends that this case

presents a factual situation for the

application of the "plain view" doctrine,

or exception to the warrant requirement.

This doctrine also had extensive examina-

17

tion by this Court in Coolidge, wherein

the following introductory approach to

this exception was made:

"It is well established that under

certain circumstances the police may

seize evidence in plain view without

a warrant. Lut it is important to

keep in mind that in the vast major-

ity of cases, any evidence seized by

the police will be in plain view, at

least at the moment of seizure. The

problem with the 'plain view' doctrine

has heen to identify the circumstances

in which plain view has legal signifi-

cance other than being simply the

normal concomitant of anv search,

legal or illeqal."” 915. Ct. 2922,

2037.

In the same case, the funreme Court

made the following remarks concerning

the doctrine:

"(23=-25) The limits on the doctrine

are implicit in the statement of its

rationale. The first of these is that

plain view alone is never enough to

justify the warrantless search of evi-

dence. ‘iis is simply a corollary of

the familiar principle discussed above,

that no amount of probable cause can

justify a warrantless search and sei-

zure absent ‘exigent circumstances’.

Incontrovertible testimony of the senses

that an incriminating object is on prem-

ises belonging to a criminal suspect

may establish the fullest possible

measure Of probable cause. Dut even

16

where the object is contraband, this

Court has repeatedly stated and en-

forced the basic principle that the

police may not enter and make a warrant-

less seizure." (citing many cases)

See 91S. Ct. 2922, 2039.

From the words of Deputy Crum's own

mouth, after waiting three days without

obtaining a warrant based on tipster

information, he himself "lav in wait”

for the defendant to get into his own

vehicle and then effected a stop of the

automobile to look inside for what he

was certain that he would find. The con-

clusion is inescapable that the peace

officer knew in advance the location of

the evidence and intended to seize it

from the beginning of his stake-out.

Again, this Court's opinion in Coolidae

deals with this precise situation, as

shown by the following excerpt:

"(26-27) The second limitation is that

the discovery of evidence in plain view

must be inadvertent. The rationale,

as just stated, is that a plain view

seizure will not turn an intiially

valid (and therefore limited) search

19

into a 'general' one, while the incon-

venience of procuring a warrant to cover

an inadvertent discovery is great. Sut

where the discovery is anticipated,

where the police know in advance the

location of the evidence and intend to

seize it, the situation is altogether

erent. ‘The requirement of a war-

rant to seize imposes no inconvenience

whatever, or at least none which is

constitutionally cognizable in a legal

system that regards warrantless searches

as ‘per se unreasonable’ in the absence

of Texigent circumstances'." See 91

€&. Ct. 2022, 2040.

In footnote 27 of the same case, page

2041, we find the following amplification

of the Court's view as to the doctrine

under consideration:

of et ° eo © eo e thas Court has

never permitted the legitimation of

a planned warrantless seizure on nlain

view grounds. . .

and to do so here would be “flatly incon-

sistent with the existing body of

Fourth Amendment law.-«<+eereeve”

Yl £. Ct. 2922, 2941. (Emphisis sup-

plied).

Most importantly, the plain view doc-

trine in warrantless automobile search

cases not only requires that a valid auto-

mobile exception be present (which is not

the case here), it also has the require-

ment of “exigent circumstances” to justify

an invoking of the exception on the part

of the prosecution.

As pointed out in the earlier part of

this argument, “exigent circumstances”

as described in the cases cited herein-

above, are simply absent from the facts

of this case. A peace officer waited

three days on a stale tip to lay in wait

for the defendant to get in his own

vehicle to return home and then asserts

that the defendant's vehicle thus pro-

vides the talisman to execute a warrantless

search. We submit that such a result

is contrary to the. Fourth Amendment

and to the pronouncements of this Court

in numerous cases based on similar facts.

CONCLUSION

For the reasons set forth, it is

respectfully sibmitted that this peti-

tion for "rit of Certiorari should be

granted.

Respectfully subnitted,

EBLLIF& SLLIS

CAREY J. ELLIS, IR.

Counsel for Petitioner

P.O. box 682

1905 “outh Julia “treet

Rayville, Louisiana 71269

Pio. (318) -728-2043

Dec. 1, 1982

CUPRENE COURT OF LOUISIANA

10, s2-lKA-0056

FTATE OF LOUISIANA

Vv.

DAVID KLINE

Appeal from the 5th Judicial District

Court, Parish of Franklin,

Honorable Sonny ij. Stephens, Judge.

PER CURIAM

Affirmec.

ii

SUPREME COURT OF LOUISIANA

WEN? ORLEANS, 79112

NEWE RELEASE #1

FOR IMMEDIATE NEWS RELEASE

FROM: CLERK OF SUPREME COURT OF LOUISIANA

On January 7, 1953, the following action

was taken by the Supreme Court of Louisi-

ana, composed of Chief Justice John A,

Dixon, Jr., and Assoicate Justices Pas-

cal F. Calogero, Jr., 'lalter F. “Marcus,

Jr., James L. Dennis, Fred A. Blanche,

Jr., Jack Crozier Watson, and iiarry 7.

Lenmon, in the cases listed below:

REHEARINGS DENIED:

U2-hA-0855 State v. David Kline

Calogero, J., would grant a

rehearing.

iii

SUPREIIE COURT OF LOUISIANA

STATL OF LOUISIANA

VERSUS FILED:Jan, 17 , 19383

DAVID KLINE

APPLICATION AND ORDER

FOR STAY OF LXECUTION

UPON MOTION of DAVID KLINE, defendant-

appellant in the above styled and num-

bered cause, through his undersigned

counsel, and on suagesting to this ionor-

able Court that its decree of December 1,

1982 affirming the verdict and sentence

of the Fifth District Court in and for

the Parish of Franklin is now final, this

Court having refused an Application for

Rehearing on January 7, 1903 and on fur-

ther suggesting that the defendant is

desirous of applying to the Supreme Court

of the United State for a Writ of Cer-

tiorari to review the decision of this

luonorable Court upon the Constitutional

issue raised in said cause and as shown

iv

by the record of the same:

If IS ORDERED That petitioner, DAVIN

KLINE, be granted a Stay of Execution of

the Decree of this lonorable Court for a

period of 69 days from this date.

DONE AND SIGNED In Chambers on this

the 17th uay of January, 1953.

Jew Orleans, Louisiana s/ John A. Dixon

/s/ Carey J. Wllis, Jr.

” ’ J .

Counsel for Defendant-Petitioner

Rayville, Louisiana

January 13, 1903.

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