Petition — Vogel v. Alabama

Office Supreme Court, U.S,

rin é&

82-17

30 | APR 18 1983

CASE NO. ALEXANOFR L. STEVAS,

| CLERK

ee

IN THE

SUPREME COURT OF THE UNITED STATES

PRESENT ‘TERM 1983

——<— <p an den ah ht OO teh eh Oe A A oe EE ee eh a ae Ee

GERALD LEN VOGEL,

PETITLONER,

VS.

STATE OF ALABAMA,

RESPONDENT.

ON WRIT OF CERTIORARI TO

THE SUPREME COURT OF ALABAMA

een Oe Ne OE ON OE EE EE

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF ALABAMA

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| FRANK W. RIGGS

ATTORNEY AT LAW

: >. ©. BOX 1067

MONTGOMERY, ALABAMA 36102

205/834-6990

COUNSEL FOR PETITIONER

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QUESTIONS PRESENTED FOR REVIEW

The question presented for review

is whether there was probable cause for

the search of an automobile behind which

Petitioner was standing at the time of

his arrest, which was shortly before the

search in question. Petitioner contends

that there was no probable cause for a

search by police officers of the vehicle

and its contents. Petitioner further

contends that even if such probable cause

existed, there were not sufficient

exigent circumstances present to allow a

Warrantless search of such vehicle.

IN THE SUPREME COURT

Of THE UNITED STATES

PRESENT TERM, 1983

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GERALD LEN VOGEL

Petitioner

vs.

STATE OF ALABAMA,

Respondent

maonananueaw eseowoeaeeeoonweneeeee—e—e ALLA LS A A A A

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF ALABAMA

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This petition asks this Honorable

Court to review the judgment o£ the

Supreme Court of Alabama, affirming

the Court of Criminal Appeals of Alabama,

in acase styled Ex Parte: Gerald Len

Vogel, Petition For Writ Of Certiorari to

the Court of Criminal Appeals (Re: Gerald

i

Len Vogel, Appellant, vs. State of

Alabama, Appellee), and the judgment and

opinion of the Alabama Court of Criminal

Appeals in Vogel vs. Alabama, reported

415 So.2a 1210. The Alabama Court of

Criminal Appeals affirmed, with an

opinion, the judgment of the Circuit

Court of Montgomery County, Alabama on

October 28, 1980, and the Alabama Supreme

Court reversed with an opinion, on

September 18, 1981. Subsequently, the

Supreme Court of Alabama granted

rehearing on application of the State of

Alabama, and, by order dated July 23,

1982, affirmed the decision of the Court

of Criminal Appeals. Petitioner was not

advised by the Supreme Court of Alabama

of such order until on or about March 3,

1983.

QUESTIONS PRESENTED FOR REVIEW

The question presented for review

*.

is whether there was probable cause for

the search of an automobile behind which

Petitioner was standing at the time of

his arrest, which was shortly before the

search in question. Petitioner contends

that there was no probable cause for &

search by police officers of the vehicle

ana its contents. Petitioner further

contends that even if such probable cause

existed, there were not sufficient

exigent circumstances present to allow a

warrantless search of such vehicle.

LIST OF PARTIES

The only parties to the proceeding

in the courts below were Gerald Len Vogel

and the State of Alabama.

TABLE OF CONTENTS

Questions presented for review ii

List of Parties iii

Table of Contents iii

iv

Table of Authorities

iii

Reference to reports of opinions of

courts below

Statement of jurisdictional grounds

Constitutional provisions involved

Ww NHN FP

Statement of the Case

Federal questions raised and ruled on

below 9

Argument 11

Appendix

Opinion of Alabama Court of Criminal

Appeals

Motion To Suppress Evidence

Opinion of Supreme Court of Alabama

Order of Supreme Court of Alabama,

dated July 23, 1982

Order of Supreme Court of Alabama,

dated February 4, 1983.

TABLE OF AUTHORITIES

1. Barnett v. United States

384 F.2d 848 14

2. Brown v. Texas iZ

3. Chambers v. Maroney,

399 U.S. 42 tb

4. United States v. Beck 11

5. United States v. Frisbie 13

1V

550 F.2d 375

6. United States v. Ortiz

422 U.S. 891 16

7. United States Constitution, Amendment

IV

REFERENCE TO REPORTS OF

OPINIONS OF COURTS BELOW

The final decision of tne Supreme

Court of Alabama in this case was

rendered on July 23, 1982, but wag not

furnished to Petitioner until on or about

March 3, 1983. Uts decision has not yet

been reported. The decision of the Court

of Criminal Appeals 9£ Alabama was

rendered October 28, 1980 and has not yet

been reported. Copies of the opinions and

orders of the Supreme Court of Alabama

and «6the)« so Yourt. of Criminal Appeals of

Alabama are included as an Appendix to

this Petition.

STATEMENT OF JURISDICTIONAL, GROUNDS

The Court of Criminal Apgo2atls of

Alabama ceadeared its decision on October

1

28, 1980. Application for Rehearing was

timely filed and was denied on November

25, 1980. A petition for writ of

certiorari was timely filed in the

Supreme Court of Alabama and was granted

by order dated July 23, 1982, which order

also affirmed the ruling of the Court of

Criminal Appeals.

Jurisdiction of this case is

conferred upon the Supreme Court of the

United States by 28 JU.S.C.S. Section

1257.

CONSTITUTIONAL PROVISIONS INVOLVED

The constitutional provision which

the case involves is the Fourth Amendment

to the United States Constitution, which

reads:

"The right of the people to

be secure in their persons,

houses, papers, and effects,

against unreasonable searches

and seizures, shall not be

violated, and no warrants

shall issue, but upon pro-~

bable cause, supported by

2

oath or affirmation, and

particularly describing the

place to be searched, and the

persons or things to be seized."

STATEMENT OF THE CASE

On May 30, 1979, two Montgomery

Police Officers, Lindsey and Pilgreen,

were on routine patrol when they saw an

automobile parked (facing them) on a

rural road near the outskirts of the City

of Montgomery. The Officers had not

received information of any recent

burglary and did not use their radio to

inquire as to any recent major crime.

As Lindsey and Pilgreen approached

the parked vehicle, they saw Petitioner

and his’ brother, Robert Louis Vogel,

standing behind the parked car at its

trunk, which was opened. Officer Lindsey

testified that, as they approached the

parked car, he saw "a subject throw a

plastic bag down on the ground." Officer

3

Pilgreen testified that he had an

unobstructed view of both sides of the

parked car and that he saw nothing thrown

on the ground.

Officers Lindsey and Pilgreen

observed three army type duffel bags in

the back seat of the car. The bags were

closed. At the hearing on Petitioner's

Motion to Suppress Evidence and to Quash

a Searcn Warrant, Officer Lindsey

testified that the outside appearance of

the duffel bags indicated that they might

contain marijuana bricks. However,

although Lindsey testified that he would

not call for a property crime

investigator in a case involving

marijuana, Lindsey did in fact instruct

his partner, Pilgreen, to get on the

radio and call headquarters for the

purpose of having a _ property crime

investigator sent to the scene.

4

Within twenty minutes after the

officers made their initial contact with

Petitioner, Froperty Investigator Jim

Nichols arrived on the scene. After he

and Officer Lindsey had discussed the

situation, Nichols requested permission

to look in the trunk of the car.

Permission was refused, whereupon

additional investigation was conducted by

Officer Lindsey and it was decided by the

Officers to arrest Petitioner for the

offense of littering.

Officer Lindsey admitted that he

did not decide to arrest Petitioner for

littering when he saw the plastic bag

thrown to the ground. Investigator

Nichols admitted that the arrest for

littering was merely a device to provide

an excuse for searching the trunk of the

automobile.

The Officers never had any basis

5

for forming a conclusion with reasonable

certainty as to what might be contained

in the duffel bags. Lindsey and Nichols

discussed the possibility that the duffel

bags probably contained either stolen

property or marijuana bricks, but there

is no evidence that they ever reached any

conclusion beyond their speculation. The

Officers merely suspected that "some kind

of contraband" may be in the car.

When Officer Nichols attempted to

lcok in the trunk of the car pursuant to

the littering arrest, Petitioner's

brother, Robert Vogel, attempted to stop

them from doing so. the Officers were

unable to get into the trunk of the car

so they then went inside the car and

opened the duffel bags, where they found

drugs.

Although an attempt was made by the

State's witnesses to indicate that

6

Petitioner Gerald Vogel was not under

arrest when the above-described events

were taking place (and thus presumably

could have taken the automobile and left

in it), the testimony of the Officers

clearly indicates the Petitioner was

under restraint. In fact, he was in

handcuffs. Furthermore, the Officers had

possession of the keys to the car.

On questioning by the trial judge,

Officer Lindsey admitted that he “just

suspected" that there might’ be marijuana

in the duffel bags.

Based upon the discovery of drugs

inside the duffel bags, the police

obtained a search warrant for the

automobile. Allegedly acting pursuant to

this search warrant, the trunk of the

automobile was opened, revealing

additional drugs.

It was admitted that the officers

7

were not looking in the Appellants’

automobile for weapons.

Petitioners were indicted by the

Montgomery County Grand Jury on June 8,

1979. He pleaded not guilty and filed a

Motion to Suppress Evidence and a Motion

to Quash Search Warrant.

A hearing was heid July 24, 1979,

before the trial judge on the Motion to

Suppress Evidence and the Motion to Quash

Search Warrant. These motions were denied

by the trial court.

After the hearing on the above

described motions, the case was tried by

the court without a jury. Petitioner

waived jury trial.

After the non-jury trial, the trial

court found Petitioner guilty.

Petitioner gave Notice of Appeal to

the Court of Criminal Appeals of Alabama.

On October 28, 1980, the Court of

8

Criminal Appeals of Alabama _ reversed

Petitioner's conviction for an error in

sentencing but held that the search which

led to Petitioner's arrest was proper.

Application For Rehearing was timely

filed and was denied.

A Petition For Writ of Certiorari

was filed in the Supreme Court of

Alabama, which on September 18, 1981 an

opinion reversing the Court of Criminal

Appeals on the search question.

Subsequently, on applications for

rehearing by both parties, the Supreme

Court of Alabama withdrew its earlier

opinion and held that the search in this

case wasS proper.

FEDERAL QUESTIONS RAISED BELOW

The federal question sought to be

reviewed were raised by a Motion To

Suppress Evidence and a Motion To Quash

Search Warrant filed in the Circuit Court

9

of Montgomery County on June 22, i973:

Copies of said Motions are set out in the

appendix. An evidentiary hearing was

held by the trial court on July 24, 1979.

At the conclusion of the evidentiary

hearing oral arguments were presented to

the trial judge, at which cases decided

by the Alabama Appellate Courts and by

the Supreme Court of the United States

were presented in support ef Petitioner's

position, The trial judge denied said

motion.

The same federal question was

presented on appeal to the Court of

Criminal Appeals of Alabama. The issues

here presented were presented in

Petitioner's brief to said Court. A copy

of Petitioner's Statement of the Issues

in said brief is included in the

Appendix. The Court of Criminal Appeals

rejected Petitioner's argument, as

10

reflected in its opinion.

The same federal questions were

presented to the Supreme Court of Alabama

by petition for writ of certiorari. In

Petitioner's brief in support of such

petition, a Statement of the Issues was

incluaed which was identical to that

reproduced in of the appendix. The

Supreme Court of Alabama also rejected

Petitioner's arguments.

ARGUMENT

In United States v. Beck(5th Cir.

7979) 602 F.2€ 726, the Fifth Circuit

Court of Appeals dealt with a case where

law enforcement officers, passing through

a predominantly black, high-crime

neighborhood, noticed a Chevrolet

automobile containing two black males

parked on the left side of the road with

its engine running. One of the officers

knew most of the people in the

oo

neighborhood and testified that these two

men were strangers. A store which was

subject to robbery or to burglary was

located nearby. When the officers

approached the occupants of the

Chevrolet, they were extremely nervous

and engaged in furtive movements, as if

something was being passed between them.

The Fifth Circuit held that the conduct

of the officers constituted a stop of the

defendants' vehicle (the same _ sort of

stop that is present in the instant case)

and said:

"in our view the police action

here, viewed in the totality

of the circumstances, did con-

stitute such a stop. Hence,

it was lawfully only if based

upon a reasonable suspicion

that some criminal activity

was afoot. Brown v. Texas,

om U.S. at -----, 99 S. Ct.

at 2641. In this case, no such

suspicion was present."

The Court went on to observe:

"Spears's mere unfounded

12

feeling that something might

be afoot did not warrant his

stop of the Chevrolet."

In United States V. Frisbie (5th

ete. 1977) S50 F.20 F356 the defendant

was arrested during the early morning

hours on a highway which was frequently

used by persons seeking to bring illegal

aliens into the United States from

Mexico. His vehicle appeared to _ be

heavily loaded. He did not have a key to

the camper on the back of the vehicle. He

appeared to be extremely nervous.

Twenty-Nine Hundred pounds of marijuana

were found in the vehicle. The Fifth

Circuit observed:

"Tested by objective standards,

see e.g., Dodd v. Beto, 5

Cir., 1970, 435 F.2d 868, 870

the movements of this van did

not give rise to a reasonable

belief that criminal activity

was afoot. Driving a loaded

van with out-of-state plates

in the early morning hours,

heading west from Fabens

toward El Paso, does not

create a reasonable inference

13

of criminal activity. The

situation is not, moreover,

turned into a basis for pro-

bable cause merely because

there was a high incidence

of smuggling in the area wee

It may be that it is the ob-

noxious thing in its mildest

and least repulsive form;

but illegitimate and unconsti-

tutional practices get their

first footing in that way,

namely, by silent approaches

and silent deviations from

legal modes of procedure.

This can only be obviated by

adhering to the rule that

constitutional provisions for

the security of person and

property should be liberally

construed. A close and literal

construction deprives them of

half their efficacy, and leads

to gradual depreciation of the

right, as if it consisted more

in sound than in substance. rt

is the duty of the courts to

be watchful for the constitu-

tional rights of the citizen

and against any stealthy en-

croachments thereon.”

In Barnett Vv. United States, (5

Civ. 1967) 364 F.2d 848, the Court

observed:

"Deputy Fisher testified with

laudatory candor that he had no

specific idea of what he was

14

looking for and that he would

have been unable to list the

items sought with sufficient

specificity to secure a warrant

for the search. The search was

a general exploratory one made

for evidence of a charge as to

which the officers had, at the

most, mere suspicion."

One simple question seems to be a

valid test of whether or not proable

cause exists. It is: Could the officer,

in applying for a search warrant, have

told the magistrate what he expected to

find in the area to be searched? TS Ooh

can, probable cause may exist. If he

cannot, probable cause definitely does

not exist.

Here, had Officers Lindsey,

Pilgreen, and Nichols been applying for a

search warrant, they could not have told

the issuing magistrate what they were

looking for. They just "suspected." They

suspected that "some kind of

(unidentified) contraband” might be in

15

the vehicle. They discussed between

themselves the possibility that the

duffel bags within the car contained

either stolen property or marijuana

bricks, but they never reached any

probable cause conclusion as to which, if

either, of those illicit substances might

be contained therein.

Under these circumstances, there

waS no probable cause to search the

vehicle by which Appellants were found.

The State of Alabama has argued

before the Appellate Courts of Alabama

that this case is controlled by Chambers

v. Maroney, 399 U.S. 42, S.Ct.

L.Ed. 2d . We submit, however,

that there is one important element of

probable cause which was present in

Chambers and not present here - in

Chambers, the police had _ been alerted

that a robbery had just been committed by

16

a perpetrator wearing a green sweater and

occupying a blue compact station wagon.

Thus, they knew what to look for. In this

case, with no report of a crime, the

police just saw two men standing behind a

yehicle on a public road.

In United States Vv. Ortiz, 422 U.S.

oi. 9S B.Ct. 258% 45 L.Ed.2d 623, this

Court observed, at 45 L.Ed.2da 629:

"This degree of discretion to

search private automobiles is

not consistent with the Fourth

Amendment. A search, even of

an automobile, is a substantial

invasion of privacy. To protect

that privacy from official

arbitrariness, the Court always

has regarded probable cause as

the minimum requirement for a

lawful search. Almeida-Sanchez,

413 U.S. at 269-270, 37 L.Ed.2d

596, 93 S.Ct. 25353 Chambers

vy. Maroney, 399 U.S. 42, 5l,

26 L.Ed.20 419, 90 S.Ct. 1975

(1970).

CONCLUSION

For the reasons stated above,

Petitioner prays that the writ applied

for be granted.

17

Respectfully submitted,

a |

/

j

tPA Linn

r CAF

FRANK W. RIGGS

Pp, O. Box 1047

Montgomery, Alabama 36102

205/834-6990

Attorney For Petitioner

CERTIFICATE OF SERVICE

I hereby certify that I have served

a copy of the foregoing Petition upon

Honorable Charrles Graddick, Attorney

General, State of Alabama, 250

Administration Building, Montgomery,

Alabama 36104, by mailing a copy of same

to him, postage prepaid, this day of

April, 1983.

par le forage S

FRANK W. RIGGS’

Attorney for Petitioner

18