Opposition — Turberville v. Alabama

2

[or —

F ILED

NO. 83-898

JAN 13 j994

IN THE SUPREME COURT OF] THE

UNITED STATES — ALEXANOER L srevag

CLERK

OCTOBER TERM, 1983

EVERETT ONEIL TURBERVILLE,

PETITIONER

vs.

STATE OF ALABAMA,

RESPONDENT

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT AND COURT OF

CRIMINAL APPEALS OF ALABAMA

BRIEF AND ARGUMENT IN OPPOSITION

TO THE WRIT

OF

CHARLES A. GRADDICK

ATTORNEY GENERAL

AND

RICHARD L. OWENS

ASSISTANT ATTORNEY GENERAL

. AND

JOSEPH G. L. MARSTON III

ASSISTANT ATTORNEY GENERAL

OFFICE OF THE ATTORNEY GENERAL

250 Administrative Building

64 North Union Street

Montgomery, Alabama 36130

(2055 834-5150

ATTORNEYS FOR RESPONDENT

NO. 83-898

IN THE SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1983

EVERETT ONEIL TURBERVILLE,

PETITIONER

Vs.

STATE OF ALABAMA,

RESPONDENT

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT AND CQURT OF

CRIMINAL APPEALS OF ALABAMA

BRIEF AND ARGUMENT IN OPPOSITION

TO THE WRIT

OF

CHARLES A. GRADDICK

ATTORNEY GENERAL

AND

RICHARD L. OWENS

ASSISTANT ATTORNEY GENERAL

AND

JOSEPH G. L. MARSTON III

ASSISTANT ATTORNEY GENERAL

OFFICE OF THE ATTORNEY GENERAL

250 Administrative Building

64 North Union Street

Montgomery, Alabama 36130

(2055 834-5150

ATTORNEYS FOR RESPONDENT

y

TABLE OF CASES

Arkansas v. Sanders,

61 L.Bd.2a 235,

99 S.Ct. 2586 (1979)------

Carroll v. United States,

267 U.S. 132,

69 L.Ed.2d 543,

45 S.Ct. 289 (1925)-------

Chambers v. Maroney,

26 L.Bd.24 419

90 $.Ct. 1975 (1970)------

Dickerson v. State,

414 So.2d 998

(Ala.Crim.App. 1982)------

Robbins v. California,

455 U.S. 420,

69 L. Ed.2d 744,

101 S.Ct. 2841 ’1981)-----

United States v. Chadwick,

455 U.S. l,

53 L.Ed.2d 538,

97 $.Ct. 2476 (1977) @Gee2eeoe

United States v. Moschetta,

646 F.2d 955 (5th Cir.

1981) rem'd sub nom

United States v. Spieler,

v.S.

1324, “S3Ct. _—« (1962) ---~-

PAGE

12

"

13

12

15

ii

ae

TABLE OF CASES

(continued)

PAGE

United States v. Ross,

456 U.S. 198,

72 L.Ed.2a 572,

102 S.Ct. 2157 (1982)-------- 13

TABLE OF CONSTITUTIONAL

mx 2c

Constitution of the

United States,

Amendment PFour------~-------- 7

TABLE OF STATUTES

Code of Alabama, 1975,

§15-5-8---------------------- a

iii

QUESTIONS PRESENTED

1. Where State law distinguishes

between search warrants executable in the

daytime and those executable in the

nighttime, and where a "neutral and

detached magistrate" finds probable cause

and issues a "daytime warrant" for a

certain premises, but exigent

circumstances develop while the officers

await sunrise, is an immediate search of

the premises violative of the Fourth

Amendment?

2. Where police officers nave what

nas previously been judicialiy determined

to be probable cause that a container

contains marijuana, may the officers

search that container when it is seized

from a motor vehicle being driven on the

public roadways?

PARTIES

In the Circuit Court of Monroe

County, Alabama, the Court of Criminal

Appeals and Supreme Court of Alabama the

parties were: Everett Oneil Turberville,

who is the Petitioner herein, and the

State of Alabama, who is the Respondent

herein.

The matters at issue here were first

placed in issue in the Circuit (trial)

Court and nave been at issue throughout

this litigation.

II

OPINIONS BELOW

All of the decisions of the lower

courts were without written opinions and

are therefore not reported. The

Petitioner has correctly set forth in his

appendix notifications from the

respective court of their actions.

JURISDICTION

The Petitioner has invoked this

Honorable Court's Jurisdiction under 28

U.S.C. 1257 (3).

CONSTITUTIONAL PROVISIONS

INVOLVED

The Petitioner is advancing an

alleged claim under the Fourth and

Fourteenth Amendments to the Constitution

of the United States.

STATEMENT OF THE CASE

On October 15, 1981 Petitioner,

Everett Oneil Turberville, was arrested

by law enforcement officers and charged

with violating Alabama controlled

substances laws. He requested a

preliminary hearing, which was held on

November 10, 1981. At the conclusion of

this hearing, the Petitioner was bound

over to the Monroe County Grand Jury. On

April 28, 1982, the said grand jury

indicted the Petioner for unlawfully

possessing marijuana.

The Petitioner was arraigned on said

indictment on November 29, 1982. On this

same day, he waived jury trial and

submitted the case to the trial court for

decision based upon a transcript of the

preliminary hearing. The trial court

found him guilty and proceeded to

eentence the Petitioner to five (5) years

imprisonment.

The Petitioner appealed, and on May

3, 1983, the Alabama Court of Criminal

Appeals (1 Div. 537) affirmed without

Opinion the Petitioner's conviction. On

May 31, 1983, the same court denied his

application for rehearing, again without

issuing a written opinion.

On August 12, 1983, the Alabama

Supreme Court (82-862) granted the

Petitioner's petition for writ of

certiorari and remanded the cause *o the

Court of Criminal Appeals. However, on

October 3, 1983, after the Alabama

Supreme Court considered the Respondent’

brief, the Court withdrew its earlier

decision and quashed the writ as having

been improvidently granted.

STATEMENT OF THE FACTS

At approximatley 6:00 p.m. the day

before the arrest, Deputy Sheriff Steve

Grifface received information from a

reliable informant, who had proved in the

past to supply truthful and correct

information, that the Petitioner, Everett

Turberville, would have a large quantity

of marijuana in a large brown suitcase,

and further that the Petitioner would be

driving a green "Falcon" automobile and

staying at the Downtown Motor Court South

Motel in Monroeville, Alabama. Deputy

Grifface then ascertained which room the

Petitioner was in, and at 7:00 p.m. he

had Larry Ikener, District Attorney's

Office investigator, keep the room and

car under surveillance. Between 10:00

and 11:00 p.m. Deputy Grifface obtained a

valid search warrant, however according

to State law it was executable only

during the daytime.

While waiting to execute the warrant

after sunrise, the officers continued the

surveillance all night, until just before

daylight. At that time the Petitioner

left the motel room and went straight to

the green "Falcon"; the officers did not

have time to get to him before he got in

his car. The Petitioner was observed

carrying a large brown suitcase which he

put on the back seat. Deputy Grifface

followed him down Highway 21 until it was

safe to stop the vehicle.

Deputy Grifface had the Petitioner

stand at the rear of the car, and then he

looked on the back seat for the suitcase.

Deputy Grifface opened the suitcase, at

which time he could smell the marijuana

even though it was still wrapped in two

(2) plastic gargage bags. He then

seized the container, which contained

,

ie

about twenty pounds (20 lbs.) of

marijuana, and then placed the Petitioner

under arrest. Deputy Grifface stated

that if marijuana was not found in this

container, the Petitioner would not have

been arrested and would have been free to

leave.

ARGUMENT

THE SEARCH AND SEIZURE OF A

CONTAINER FILLED WITH MARIJUANA

AND BEING TRANSPORTED BY THE

DEFENDANT IN HIS CAR DID NOT

VIOLATE THE FOURTH AMENDMENT.

v

A.

A VALID SEARCH WARRANT MEETING

THE REQUIREMENTS OF THE FOURTH

AMENDMENT HAD BEEN OBTAINED,

THOUGH IT WAS NEVER EXECUTED.

In this case, Deputy Grifface

received information from a previously

proven reliable informant that a crime

was being committed; that the Petitioner

was in possession of a large quantity of

marijuana. After verifying the supplied

facts, Deputy Grifface sought to obtain a

search warrant only hours after talking

to his informant. A valid daytime search

warrant, based on probable cause, was

obtained. The time of day or night

when a search warrant may be executed is

governed by § 15-5-8, Code of Alabama,

1975, which states, in pertinent part, "A

search warrant must be executed in the

daytime unless the affidavits state

positively that the property is on the

person or in the place to be searched, in

which case it may be executed at anytime

of the day or night." Deputy Grifface

did not execute this warrant because it

was based on probable cause, and not

actual knowledge!. However, in the

recent case Dickerson v. State, 414 So.2d

998 (Ala.Crim.App. 1982), the Alabama

\From the time of receiving the

information from the informant, to

obtaining the warrant, to keeping the

motel room under surveillance, to

stopping the Petitioner driving away and

searching the car, all occurred during

the night-time. The State of Alabama

submits that if the search had occurred

minutes later, this entire issue would

vanish, for it would have been daytime,

and Deputy Grifface would have conducted

his search pursuant to the search warrant.

8

Court of Criminal Appeals held that the

positive averment requirement for a

nighttime search warrant can be

"satisfied by the hearsay information of

a confidential informant." At p. 1012.

Therefore, Deputy Grifface had in his

possession knowledge that would have

allowed him to obtain a valid nighttime

search warrant.

Nevertheless, the Fourth Amendment

warrant requirement was met. Deputy

Grifface took to a judicial officer the

informant's information after having

verified it himself. ‘The "neutral and

detached" judicial officer determined

that there was probable cause to issue a

search warrant. The Fourth Amendment

makes no distinction between daytime and

nighttime warrants, only State law does.

It simply says that we are secure against

unreasonable searches and seizures, and

that the issuance of a warrant must be

based on probable cause. Notwithstanding

our State's distinction between day and

night search warrants, the warrant

obtained by Deputy Grifface was

undisputably issued based on probable

cause. Therefore, when Deputy Grifface

searched for the marijuana, there had

been a search warrant issued by a neutral

and detached judicial officer who

determined that there was probable cause

as required by the Fourth Amendment, to

believe that this Defendant was in

possession of a controlled substance,

to-wit: marijuana, contrary to Alabama

law.

Therefore, the requirements of the

Fourth Amendment were met--a search

warrant had been issued based upon

probable cause--however, due to a

mistaken belief as to State law, the

police officer did not conduct the search

pursuant to the valid warrant.

10

B.

THE PROBABLE CAUSE SEARCH WAS

REASONABLE BASED ON THE

AUTOMOBILE EXCEPTION TO THE

WARRANT REQUIREMENT.

Notwithstanding the fact that the

unexecuted search warrant had been issued

based on probable cause, which was

judicially determined to exist, the

subsequent "warrantless" search was

reasonable based on the automobile

exception. This exception, first

developed in Carroll v. United States,

267 U.S. 132, 69 L.Ed.2d 543, 45 S.Ct.

289 (1925), allows police officers who

have probable cause to believe that an

automobile contains contraband to search

that vehicle without a warrant.

Subsequently, in Chambers v. Maroney, 399

U.S. 42, 26 L-Bd.2d 419, 90 S.Ct. 1975

(1970), the Supreme Court stated:

Por constitutional purposes,

we see no difference between on

the one hand seizing and

"1

=

holding a car before presenting

the probable cause issue to a

magistrate and on the other

hand carrying out an immediate

search without warrant. Given

probable cause to search,

either course is reasonable

under the Fourth Amendment.

399 U.S. at 52,

26 L.EBd.2a 419,

90 S.Ct. 1975.

Therefore, if police officers have

probable cause to search a car, they can

stop it and do so without a warrant.

This exception was somewhat narrowed

by United States v. Chadwick?, 433 U.S.

1, 53 L.Ed.2d4 538, 97 S.Ct. 2476 (1977)

and Arkansas v. Sanders», 442 U.S. 753,

61 L.Ed.2d 235, 99 S.Ct. 2586 (1979).

2A footlocker placed in the trunk of a

parked car, which the officers knew for

two days that it would be arriving.

30fficers were informed that the

Defendant would fly-in later that

afternoon carrying a green suitcase. The

officers waited until he started leaving

in a taxi at which time they stopped the

taxi, opened the vehicle's trunk and

seized and searched the suticase.

These cases allowed the probable cause

based seizure of the vehicle and all

containers therein, but required officers

to obtain a search warrant before opening

the container. This was based upon a

greater expectation of privacy in closed,

Opaque containers than in the vehicle

itself. The reasoning/holding of these

two cases was affirmed in Robbins v.

Californias, 453 U.S. 420, 69 L. Ed.2d

744, 101 S.Ct. 2841 (1981).

However, in United States v. Ross,

456 U.S. 798, 72 L.Ed.2d 572, 102 S.Ct.

2157 (1982), the Supreme Court in effect

overruled Robbins, supra, and rejected

some of the reasoning in Sanders, supra.

The current status of Sanders is best

stated by Justice Marshail in his

40fficers unwrapped bricks of marijuana

wrapped in opaque, plastic garbage bags

found hidden in back of a stationwagon.

13

dissenting opinion in Ross, "Sanders is

therefore effectively overruled." 72

L.Ed.2d at 604. In Ross, supra, the

Court stated and held that:

In this case, we consider

the extent to which police

officers--who have legitimately

stopped an automobile and who

have probable cause to believe

that contraband is concealed

somewhere within it--may

conduct a probing search of

compartments and containers

within the vehicle whose

contents are not in plain view.

We hold that they may conduct a

search of the vehicle that is

as thorough as a magistrate

could authorize in a warrant

"particularly describing the

place to be serached."

456 U.S. at 800,

72 L-Ed.2d at 578.

In this case, it is undisputed that the

officers had probable cause to believe

there was contraband in the Defendant's

car, for they observed the Defendant put

into the car a suitcase that they had

probable cause (judicially determined

even) to believe contained marijuana.

14

v

’

‘

a

me

Purthermore, this Court followed its

decision in Ross in United States v.

Moschetta, 646 F.2d 955 (5th Cir.

1981)(5] rem'a sub nom United States v.

Spieler, U.S. _, 73 L.Ed.2d 1324,

__8.Ct._—s-: (1982), in which a

warrantless search of a briefcase removed

from the trunk of a car was eventually

upheld based on Ross, thus reversing the

suppression of the briefcase.

Just as if the officers were

executing a search warrant, in conducting

a@ warrantless search based on Ross,

supra, they can only open those

containers which could contain the object

of the search. As the Court said in

Ross, supra:

Just as probable cause to

believe that a stolen lawnmower

may be found in a garage will

not support a warrant to search

5Now 11th Circuit.

15

an upstairs bedroom, probable

cause to believe that

uncocumented aliens are being

transported in a van will not

justify a warrantless search of

a suitcase. Probable cause to

believe that a container placed

in the trunk |or on the rear

seat] of a taxi contains

contraband or evidence does

not justify a search of the

entire cab. (bmphasis added).

456 U.S. at 824,

72 L.8d.2d at 593.

Herein Deputy Grifface stated that he was

only looking for the suitcase and that

the suitcase was the only container that

was opened. He did not even open the

clothes bag that was on top of the

suitcase. His probable cause to search

was limited to the suitcase and that was

the only container, and area of the

vehicle, that was searched. As stated

further in Ross, supra:

The scope of a

warrantless search based on

probable cause is no

narrower--and no broader--than

the scope of a search

authorized by a warrant

16

supported by probable cause.

Only the prior approval of the

magistrate is waived; the

search otherwise is as the

magistrate could authorize.

The scope of a warrantless

search of .an automobile thus is

not defined by the nature of

the container in which the

contraband is secreted.

Rather, it 18 defined by the

object of the search and the

places in which there is

probable cause to believe that

it may be found. (Emphasis added).

456 U.S. at 823-824,

72 Le-Ed.2d at 593.

Therefore, Deputy Grifface restricted the

scope of his search to that which would

have been authorized by a warrans. His

search was therefore a valid search

within the confines of the automobile

exception to the Fourth Amendment's

warrant requirement.

17

ewe

CONCLUSION

In conclusion the State of Alabama,

Respondent, respectfully submits that the

decisions and opinions of the Alabama

Courts are patently correct and entirely

consistent with the decisions of this

Honorable Court and that the writ is due

to be denied and the Respondent prays

such denial.

Respectfully submitted,

ATTORNEY GENERAL

RICHARD L. OWENS

ASSISTANT ATTORNEY GENERAL

ASSISTANT ATTORNEY GENERAL

ATTORNEYS FOR RESPONDENT

18

CERTIFICATE OF SERVICE

I hereby certify that I have served

a copy of the foregoing on Attorney for

the Appellant, by placing a copy in the

United States mail, postage prepaid.

Paul M. Harden

Attorney at Law

201 Pineville Road, Suite 5

Monroeville, Alabama %46460

DONE this day of January,

1984.

RICHARD L. OWENS

ASSISTANT ATTORNEY GENERAL

ADDRESS OF COUNSEL:

Office of the Attorney General

250 Administrative Building

64 North Union Street

Montgomery, Alabama 436130

(205) 834-5150

19