# Petition — Kline v. Louisiana > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0581%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 - **Citation:** 461 U.S. 906 ## Text 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. (THIS PAGE INTENTIONALLY LEFT BLANK) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0581%3A1. Public record. Not legal advice.