Petition — Shepherd v. United States

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83-1483 |

FILED

NO. OcT

IN THE

Supreme Court of the Hnited States

—__TERM, 1983

BUEL LEE SHEPHERD,

Petitioner

United States of America,

Respondent

On Appeal from the United States Court

Of Appeals for the Fourth Circuit

Petition for a Writ of Certi@fari to the

Supreme Court of the United States of America

Franklin Smith, Esquire Solicitor General ;

656 N. Bridge St. United States Dept. —

Post Office Box 307 of Justice

Elkin, N. Carolina Washington, D.C.

28621 20530

APPELLATE PRINTING SERVICES. INC HERITAGE BLOG. RICHMOND. VA (604) 643-7789

IN THE SUPREME COURT OF THE

UNITED STATES

_______s TERM, 1983

No.

BUEL LEE SHEPHERD,

£ Petitioner

zseneeeee ere Re RRR RRR ERE BR

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE

UNITED STATES OF AMERICA

ee ezeeeeznee eee ee eRe RR ee

QUESTIONS PRESENTED

I. WHETHER OR NOT THE GOVERNMENT

AGENTS HAD PROBABLE CAUSE TO ARREST THE

DEFENDANT, BUEL LEE SHEPHERD, WITHOUT A

WARRANT ON THE MORNING OP DECEMBER 3,

1980.

II. DID THE WARRANTLESS SEARCH OF THE

DEPENDANT, BUEL LEE SHEPHERD'S AUTOMOBILE

WITHIN THE CURTILAGE OF IS HOME, VIOLATE

baal

UNITED STATES

TERM, 1983

NO.

BUEL LEE SHEPHERD,

Petitioner

a IN THE SUPREME COURT OF THE

@ee@e#?@464+ @ 8082 2428 2 fe 82 2a

TABLE OF CONTENTS

Questions Presented - - - -

Table of Authorities- - - -

Jurisdiction- - ------

Constitutional Provisions

Statement of the Case - -

Arguments - --------

- Copy of Opinion

4 from United States Court

3 of Appeals for the Fourth

a Certificate of Service- - -

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—

TABLE OF AUTHORITIES

Citations

ae. United States v. Branch, 565 F.2d 274

x £.

Katz v. United States, 389 U.S. 347, 357

oe. Carroll v. United States, 267 U.S. 132

rm ~~ (7925)

Chambers v. Maroney, 399 U.S. 42 (1980)

Texas v. White, 423 U.S. 67 (1975)

coos asic v. New Hampshire, 403 U.S. 443

a United States v. Ventoe, 533 F.2d 838,

a am Cir.

Cardwell v. Lewis, 417 U.S. 583, 590

Uni States v. Bradshaw, 490 F.2d 1097,

he rte tach Cir. or cert. denied, 419

o U.S. 895 (1974) r

Arkansas v. Sanders, 442 U.S. 753 (1979)

me Warden v. Hayden, 387 U.S. 294 (1967)

“yl United States v. Santana, 427 U.S. 38

b Taylor v. United States, 286 U.S. 1,5

~—"

ir.

Cf. si nies States v. Beech) 140 F. Supp.

’ ‘ . .

Katz v. United States, 389 U.S. 347, 353

United States v. Rama am, 632 F.2d 1149,

1153 (4th Cir. 1380) cert. denied, 450

U.S. 1030 (1981)

Martin v. United States, 183 F.2d 436,

United States v. Mitchell, 538 F.2d 1230,

en b.nc), cert.

denied, 430 a6. 946 (1977)

}

United States v. Chadwick, 433 U.S. 1

United States v. Ross, U.S. P

L.Ed. 2)

sive) a

a ne

be 5c Oe

S .

OPINIONS

The Opinion rendered by the United

States Court of Appeals for the Fourth

Circuit, filed August 4, 1983, is hereto

attached and designated as the Appendix

to this Petition for Writ of Certiorari.

JURISDICTION

The Petitioner, Buel Lee Shepherd,

is charged pursuant to a Bill of Indict-

ment filed December 29, 1980 for having

violated Title 26 of the United States

Code, Section 5601(a) (12) and Title 26

of the United States Code, Sections 5205

(a) (1) and 5604(a)(1). The Petitioner

was tried in the United States District

Court for the Middle District of North

Carolina before the Honorable Hiram H.

Ward, United States District Court Judge,

on February 13, 1981, without a jury.

The Petitioner was duly convicted by the

Court and, by Judgment entered February —

@ ("> « : >

eer, § ee

19, 198], was sentenced to fifteen (15)

months on Count One of the Bill of Indict-

ment, and, to five (5) years on Count Two

of the Bill of Indictment, said sentence

being suspended. The Petitioner was

placed on probation for a five (5) year

period after completion of the sentence

imposed on Count One of the Bill of In-

dictment. The Petitioner gave notice of

appeal to the United States Court of Ap-

peals for the Fourth Circuit. His case

was decided on August 4, 1983 by Judges

Phillips, Murnaghan and Ervin, with Judge

sec 2 Oe

Murnaghan filing a dissenting opinion. 3

CONSTITUTIONAL PROVISIONS

The Fourth Amendment of the United

States Constitution reads as follows:

The right of the people to be

secure in their persons, houses,

papers, and effects, against

unreasonable searches and seiz-

ures, shall not be violated, and

no warrants shall issue, but

upon probable cause, supported

by oath or affirmation, and par-

‘ ead Li ees

e : ; A . a4 ae S, or wee x

cits ps ee [= a ” - = - — = oy &- - > om

oe ee eg ek ae. Oe ae. rs ae: bt eek ath ce ee ae uk

ticularly describing the place

to be searched, and the person

or things to be seized.

STATEMENT OF THE CASE

Government Agent Aubrey M. Huffman

testified he was an employee of the

Bureau of Alcohol, Tobacco and Firearms

and was so employed on December 3, 1980

when he and ABC Officer Robert Cobb set

up a surveillance of the residence of

Buel Lee Shepherd, Route 3, North Wilkes-

boro, North Carolina. Agent Huffman tes-

tified that they situated themselves in

a wooded area approximately one hundred ~

years to the rear of the residence of Wr.

Buel Lee Shepherd. At 8:15 a.m., he ob-

served Buel Lee Shepherd leave his resi-

dence and walk to a 1971 Mercury Cougar

that was located approximately seventy-

five yeards to the rear of his residence.

Mr. Shepherd opened the trunk compartment

of the Mercury, went into a wooded area

and returned carrying one-gallon plastic

jugs which he placed in the trunk of the

Mercury automobile. Agent Huffman testi-

fied that Mr. Shepherd made three trips

into the woods and back to the Mercury

automobile, placing one-gallon plastic

jugs in the trunk compartment each time,

closed the trunk compartment, and then |

walked to the side of the Mercury auto-

mobile. At that time,’ Officer Lester

Russell, whom Agent Huffman had notified

by radio, drove into the driveway and

pulled up behind the 1971 Mercury auto-

mobile. At that time Agent Huffman came

out of the woods, asked Buel Lee Shepherd

for the keys to the automobile, opened

the trunk, and found thirty-eight gallons

of illegal distilled spirits.

On voir dire, Agent Huffman testi-

fied he asked the Petitioner for the keys

to the trunk of the automobile, did not

have a search warrant to search the auto-

mobile, nor, did. he have the permission

of the Petitioner, Buel Lee Shepherd, to

search said Mercury automobile.

On Direct Examination, Agent Huffman

testified the Mercury automobile was sit-

ting dirrectly behind Buel Lee Shepherd's

house, along with other vehicles - an

orange Volkswagen and a pick-up, as well

as one or two sheds and a house trailer;

that the car was parked just beyond the

house trailer and that just beyond the

trailer there was an area that had been

used for a garden and a wooded area.

Federal Agent, Lester G. Russell,

testified that on December 3, 1980, he

had been in radio contact with Agent

Huffman; that at 8:15 a.m. he received

a message from Agent Huffman that Buel

Lee Shepherd was in the process of load-

ing one-gallon jugs into the trunk of a

Ce i ee.) i ae

Mercury automobile and was advised to

come to the residence of Buel Lee Shep-

herd in his vehicle. Agent Russell testi-

fied that when he arrived, Mr. Shepherd

was standing on the driver's side of the

vehicle; that he observed Agent Huffman

asking Mr. Shepherd for the keys to the

vehicle, which Mr. Shepherd took from his

pocket and gave to Agent Huffman who then

proceeded to use the keys and to open the

trunk of the automobile.

On Cross-Examination, Agent Russell

testified that, at no time, did Buel Lee

Shepherd, the Petitioner, give permission

to Agent Huffman to search the automobile

and that they did not have a search war-

rant to search said vehicle.

At the close of the Government's

evidence, Buel Lee Shepherd made a motion

for directed verdict based upon the issue

of search and seirure.

The Petitioner raised the issues of

illegal search and seizure and, by and

through proper objections made during

the course of the trial, raised the fact

that the vehicle was not on a public

“highway at the time the search was con-

ducted, and presented these questions to

be argued before the United States Court

of Appeals for the Fourth Circuit. This

case was first argued on July 17, 1981

in Wilmington, North Carolina before

Judges Phillips, Murnaghan and Ervin. It

was then re-argued on November ll, 1982

before the United States Court of Appeals

in Richmond, Virginia. The decision of

that Court was issued on August 4, 1983,

bearing No. 81-5074.

ARGUMENTS

The United States District Court

Judge for the Middle District of North

Carolina, sitting as both Judge and as

jury, failed to afford to the Petitioner

the protection to which he was entitled

pursuant to the Fourth Amendment of the

United States Constitution. The United

States Court of Appeals for the Fourth

Circuit so departed from the accepted

and usual course of judicial proceedings

and recognized legal authorities and

legal opinions of the United States Su-

preme Court so as to call for an exercise

of the United States Supreme Court's

supervision in this case. The exercise

of supervision by the United States Su-

preme Court should be applied in this

case due to the fact that some aspects

of the case, relating to the protection

guaranteed to the Defendant pursuant to

haan

e°

the Fourth Amendment of the United States

Constitution, present questions of first

impression to the United States Supreme

Court. The United States Court of Appeals

for the Fourth Circuit relied upon the

cases of Katz v. United States, 389 U.S.

347, 357; Carroll v. United States, 267

U.S. 132; Chambers v. Maroney, 399 U.S.

42; Texas v. White, 423 U.S. 67; United

States v. Ventoe, 533 F.2d 338, 866-67;

United States v. Bradshaw, 490 F.2d 1097,

1103, cert. denied, 419 U.S. 895; United

States v. Ross, 72 L.Ed.2d 572; as well

as numerous Federal decisions.

Judge Murnaghan set forth in his

dissenting opinion the following:

"It is with no joy that I

write to announce dissent.

Nevertheless, the facts as to

whether an emergency existed,

justifying the jettisoning of

the Fourth Amendment safeguard,

are the facts. Buel Lee Shep-

herd was not free to drive his

vehicle away. His car keys had

been impounded even before the

trunk of the car had been

opened.1 The motorcar rested

not on the public highway,

where vehicles whizzing by em-

phasize the predominance of

mobility, but on private pro-

perty legitimately employed by

Shepherd as a parking area.

There were no less than two

policement so that, even apart

from the possible availability

of a warrant through telephonic

or wireless communication, one

of them could have remained

guarding the car and insuring

its immobility while the other

proceeded with the arrested

Shepherd to a place where a wirt-

rant could be obtained.

Consequently, there simply

was no exigency, and, absent it,

no justification for disregard

of the Fourth Amendment require-

ment that a warrant be obtained.

Katz v. United States, 389 U.S.

1 The insistence that Shepherd

surrender his car keys, and the

fact that the burden (which was

never met) properly rested on the

shoulders of the police who are

trying to justify a warrantless

search and seizure to whet-

her or not Shepherd been ar-

rested made irrestible the con-

clusion that Shepherd was effec-

tively immobilized before the

search of the trunk, and, a

fortiori, of the opaque con-

tainers, took place.” —

Here, these learned Judges studied

this case, asked for oral arguments on

two occasions and pondered the legal

questions from the time the case reached

the Fourth Circuit ai-.er trial on Febru-

ary 13, 1981 until the time of their de-

cision on August 4, 1983. It is believed

by this Petitioner that the Court waited

until the United States Supreme Court

decided the case of United States v.

Ross and other cases pending before the

United States Supreme Court. Counsel for

the Petitioner can not set forth better

reasons, nor find better authorities,

than those cited by Judge Murnaghan,

Circuit Judge for the United States

Court of Appeals for the Fourth Circuit.

The case of Katz v. United States, 389

U.S. 347, 357 (1967), even though not

factually analogous to the facts of this

case, is the only authority which tends

to support and treat the questions pre-

sented in this Petition for A Writ of

Certiorari. The United States Supreme

Court should grant this Petition for A

Writ of Certiorari, review the record,

and write an opinion in this case. P

WHEREFORE, the Petitioner, Buel Lee |

Shepherd, prays the Court that this ‘

Petition for A Writ of Certiorari be :

granted, that execution of judgment and

the sentences imposed by the Trial Judge

in the United States District Court for

the Middle District of North Carolina

be stayed pending a review by the United

States Supreme Court, and for such other

and further relief as the United States

Supreme Court deems this Petitioner,

Buel Lee Shepherd, justly entitled.

Respectfully submitted, this the

1 a Maty ‘ i 7

pathy v bo ; ; '

Sy 7% Pe ye ; bag

.'* " ; ¥ \ :

30th day of September, 1983.

- 2p

a 656 North Bridge Street

‘: Post Office Box 307

+ Elkin, North Carolina 28621

| Telephone: (919)-835-1351

5 es Oy

m4; : Me

APPENDIX

UNITED STATES COURT OF APPEALS .

FOR THE FOURTH CIRCUIT |

No. 81-5074 “

United States of America, ,

Ss Appellee,

Vv.

é, Buel Lee Shepherd, :

“i | Appellant.

Appeal from the United States District

Court for the Middle District of North

. Carolina, at Wilkesboro. Hiram H. Ward,

. District Judge.

Reargued: November ll, 1982

; Decided: August 4, 1983

Before PHILLIPS, MURNAGHAN and ERVIN,

E Circuit Judges

Franklin Smith for Appellant; David

Smith, Assistant United States Attorney

(H. M. Michaux, Jr., United States Attor-

ney, John W. Stone, Jr., Assistant United

States Attorney on brief) for Appellee.

ERVIN, Circuit Judge:

Buel Lee Shepherd was convicted of

possessing thirty-eight gallons of moon-

shine whiskey on which the tax had not

been paid, and of removing it from its

place of manufacture ik ‘clibebiiane it,

in violation of 26 U.S.C. 88 5205(a) (1),

5604(a) (1) and 5601(a)(12). On appeal,

Shepherd contends that his arrest and

the warrantless search of his automobile

were unlawful, Therefore, he urges the

fruits of the illegal arrest and search

were improperly admitted at his trial.

We hold that Shepherd's arrest was sup-

ported by probable cause, and that the

warrantless search was justified under

the automobile exception to the fourth

“Tl

amendment.

Late in the fall of 1980, Lester

Russell, an investigator for the North

Carolina liquor control board in Winston

Salem, received information from a

reliable confidential informant that the

defendant was engaged in an illegal whis-

key enterprise at his residence in North

Wilkesboro, North Carolina, located fifty

miles away. According to Agent Russell,

on approximately thirty earlier occasions

the informant had provided information

that had led to over twenty-five convic-

tions. After receiving the informant's

report, Russell, together with North

Carolina Alcohol and Beverage Control

(ABC) Agent Robert Cobb and Agent Aubrey

Huffman from the federal Bureau of Alco- “

hol, Tobacco and Firearms, set up sur- 4

veillance Sf the defendant's residence ¥ i

on the morning of December 3, 1980.

Russell remained in the police vehicle

some distance away while Cobb and Huff-

man positioned themselves in woods ap-

proximately one hundred yards to the

rear of Shepherd's residence.

At about 8:15 a.m., Huffman observed

Shepherd leave his residence and walk to

a 1971 Mercury Cougar parked approxima-

tely seventy-five yards to the rear of

the house. After opening the trunk of

the automobile, Shepherd made three trips

into « wooded area near the vehicle and

returned carrying translucent one gallon

plastic jugs which he placed in the open

trunk. Shepherd then closed the trunk

compartment and walked to the driver's ‘

side of the automobile. At this point

Officer Russell drove up. Agent Huffman,

leaving his observation point in the

woods, walked up to Shepherd and asked

Me te

eS ee ee eee oS

him for the key to the trunk. Shepherd

took his car keys from his pocket and

handed them to Huffman. Huffman then

opened the trunk. The trunk of the car

contained thirty-eight capped one gallon

plastic jugs. The jugs were later opened -

without a warrant. Each jug contained

moonshine. No tax had been paid and no

tax stamps had been affixed to the jugs.

1 The record does not indicate how §

many jugs per trip Shepherd carried. |

II.

We find no merit in Shepherd's con- y

tention that the agents lacked probable

cause to arrest him. The agents had 4

;

‘o :

tip

been supplied a tip from a highlt reli-

able informant whose aid in earlier

cases netted over twenty-five convic-

tions on approximately thirty tips. Upon

taking up surveillance at the location

advised by the informant, the agents

witnessed behavior consistent with the

tip and with an illegal moonshine ope-

ration. The combination of a reliable

tip and first-hand corroborative obser-

vation of suspicious activity provided

ample cause to suspect Shepherd was en-

gaged in criminal activity justifying

arrest. See United States v. Branch,

565 F.2d 274 (4th Cir. 1977) (arrest

supported by probable cause when police,

acting on informant's tip that one

Branch, carrying drugs, would alight

from certain air flight, arrested man

matching informant's description getting

into car registered in Branch's name).

Itt.

We turn now to the most difficult

issue of whether the warrantless search

of Shepherd's automobile violated the

fourth amendment to the United States

Constitution. The fourth amendment

states:

The right of the people to be

secure in their persons, houses,

papers, and effects, against

unreasonable searches and seiz-

ures, shall not be violated, and

no warrants shall issue, but

upon probable cause, supported

by oath or affirmation, and par-

ticularly describing the place

to be searched, and the person

or things to be seized.

Although by its terms the amendment does

not equate unreasonable searches with

warrantless ones, the Supreme Court has

long held this view. In Katz v. United

States, 389 U.S. 347, 357 (1967), for

example, the Court wrote that searches

conducted outside the judicial process,

without prior approval by judge or magi-

strate, are per se unreasonable under

the fourth amendment -- subject only to

a few specifically established and well-

delineated exceptions.”

The search in this case was, of

course, carried out without a warrant.

The specific exception to the warrant

requirement which the government urges

upon us is the so-called “automobile ex-

ception,” first announced in Carroll v.

United States, 267 U.S. ]32 (1925).2 In

Carroll, federal prohibition agents and

a state policeman observed a car

2 The government also maintains that

Shepherd consented to the search since

he voluntarily relinquished the key at

Agent Huffman's request. However, there

is no evidence that Shepherd's consent

was obtained. The officer asked for

Shepherd's key, not for permission to

search the trunk. Both Officer Huffman

and Officer Russell agreed in their

testimony that no consent had been ob-

tained. Moreover, obeying a polite re-

quest issued by someone obviously in

authority and capable of enforcing the

request does not amount to "consent" to

the request. Citizens may obey police

commands, even those put in the form of

polite requests (e.g., “please raise

your hands above your hear"; “please

give me your keys"), without any deri-

vation from such non-vilitional acts of

a conclusion that that have waived their

constitutional rights.

‘g

”

traveling on the road between Detriot and

Grand Rapids, Michigan. Several factors

led the agents to believe the vehicle was

involved in bootlegging; illicit liquor

traffic was precalent in the area; the

car's occupants had been observed before

in the vicinity; and the agents recognis-

ed the occupants as persons having pre-

viously attempted an illegal liquor sale.

The vehicle was stopped, and the agents

proceeded to search the interior, uncov-

ering a cache of illegal liquor hidden

in the upholstery. The occupants were

then placed under arrest. At their trial

they maintained that the warrantless

search of their car violated the fourth

amendment. On appeal, the Supreme Court

rejected this claim, reasoning that the

suspects and evidence might have left

the jurisdiction of the authorities by

the time a warrant could have been ob-

tained. The Court made clear that it

was the particular exigence of the sit-

uation that justified a warrantless

search, adding that "[i]n cases where

the securing of a warrant is reasonably

practicable, it must be used. .. ." Id.

at 156.

The automobile exception took on new

aspects in Chambers v. Maroney, 399 U.S.

42 (1970).3 There, the suspects in an

armed robbery were stopped on a public

street in a station wagon one hour after

the crime occurred. The occupants of

the car were arrested, and the station

wagon was driven to the police station

where an immediate search uncovered two

3 For developments in the area of

automobile searches between 1925 and

1970, see generally 2 W. LaFave, Search

and Seizure, ~2 (1978). Pe

revolvers and other items which were

admitted into evidence against one de-

fendant in his trial for armed robbery.

Despite the fact that, unlike the situ-

ation in Carroll, there was no danger

that the suspect vehicle would leave the

jurisdiction, since its owner was in

jail, the Supreme Court validated the

warrantless search:

Neither Carroll... nor

other cases in this Court re-

quire or suggest that in every

conceivable circumstance the

search of an auto even with

probable cause may be made

without the extra protection

for privacy that a warrant

affords. But the circumstances

that furnish probable cause to

search a particular auto for

particular articles are most

often unforeseeable; moreover,

the opportunity to search is

fleeting since a car is readily

movable. Where this is true,

as in Carroll and the case be-

fore us now, if an effective

search is to be made at any

time, either the search must

be made immediately without a

warrant or the car itself must

be seized and held without a

warrant for whatever period is

necessary to obtain a warrant

for the search... .

Arguably, because of the

preference for a magistrate's

judgment, only the immobiliza-

tion.of the car should be per-

mitted until a search warrant

is obtained; arguably, only

the “lesser” intrusion is per-

missible until the magistrate

authorizes the “greater.” But

which is the “greater” and

which the "lesser" intrusion

is itself a debatable question

and the answer may depend on a

variety of circumstances. For

constitutional purposes we see

no difference a on one

hand seizing and holding a car

. before presenti the probable

Cause issue to a magistrate and

. on the other hand eeeeed one

an i ate search w out a

warrant. Given probable cause

to search, either course is rea-

sonable under the Fourth Amend-

ment.

Id. at 50-52 (footnote omitted) (empha-

sis supplied). See also Texas v. White

. 423 U.S. 67 (1975) (per curiam), dis-

. cussed below.

| While Shepherd acknowledges the re- 4

levance of these precedents, he argues

that two factors block the application

of the automobile exception in his case:

the car's location on private property,

as opposed to the public highway,” and

the absence of exigent circumstances once

the agents gained control of the vehicle. )

In response to these contentions we

first point out that the Supreme Court

has never held that a vehicle's location

on private property forecloses applica-

tion of the automobile exception under

all circumstances. In Coolidge v. New

Hampshire, 403 U.S. 443 (1971) (plurality :

opinion), the Court did note the enhanced

privacy interest residing in a vehicle

4 Evidently, the car was actually park-

ed on property belonging to Shepherd's

neighbor. For purposes of argument we

assume no difference in the privacy in-

terest residing in a car parked on one's

Own property and a car parked on the

property of one's next door neighbor.

i ie

‘ . -

parked in a driveway. But in invalidating

a warrantless vehicle search by police

following a lengthy murder investigation,

the Coolidge plurality chiefly relied on

the authorities' failure to obtain a war-

3 rant despite ample advance opportunity to

do so and despite knowledge that the car

was not about to disappear. The vehicle,

which authorities knew to contain incri-

minating evidence, had been under sur-

veillance for days. At the time the car

was seized in Coolidge's criveway, there

was no indication that the vehicle was

about to be driven away.

These circumstances contrast sharply

with the facts before us. Prior to taking

up surveillance on the morning of Decem-

ber 3, the agents had no knowledge that

a specific vehicle was involved in Shep-

herd's moonshining operation. The infor-

mant had merely reported that Shepherd

was making illegal liquor. There was no

advance opportunity to obtain a search

warrant for Shepherd's car before ob-

serving the defendant loading jugs into

the vehicle on his property. Indeed, -

even had the informant specifically re- |

lated that Shepherd would be transporting

whiskey on the morning of December 3, no

warrants could have issued, absent in-

formation about the vehicle to be used,

which would have met the specificity |

requirements prescribed under the law.

See United States v. Vento, 533 F.2d 838, a

866-67 (3d Cir. ]976). Furthermore,

the agents moved in only when it became

obvious that Shepherd had finished load-

ing the vehicle and was about to drive

off. At that moment, exigent circum-

stances compelled the agents to act or

else risk losing both quarry and contra-

band. It makes no difference that the

car was seized on private property rather

than stopped on the public highway. Cases

such as Coolidge which draw this distinc-

tion involve stationary vehicles whose

owners are absent from the scene. Here,

the car was one brief moment away from

being driven off by its owner. The courts

have recognized that a car traveling on

the public highway affords less privacy

than the home, but that one's expectation

of privacy in a vehicle is enhanced when

the car is nestled in the driveway. See

Cardwell v. Lewis, 417 U.S. 583, 590

(1974); United States.v. Bradshaw, 490

F.2d 1097, 1103 (4th Cir. 1974), cert.

denied, 419 U.S. 895 (1974). Still, the

danger posed by the inherent mobility

of an automobile must outweigh whatever

enhanced privacy interest exists when

the car is parked at home if it appears

the car is about to take flight. Purther-

more, we reject the notion that this was

not a valid search and seizure but that

it would have been converted into one

had the officers waited until Shepherd

drove his vehicle onto a public highway

and then stopped him there. See Arkansas

v. Sanders, 442 U.S. 753 (1979), discus-

sed below.

We illustrate our position by postu-

lating different facts.” Suppose Shep-

herd had been secretly observed carrying

gallon jugs from the woods into his house.

We have no trouble saying that a search

warrant would have been essential before

agents could enter the house and seize

the containers. The law has long recog-

nized the sanctity of the home may not be

breached by government agents lacking

warrants, except under the most extra-

ordinary circumstances, as where life is =

endangered or where authorities are in |

+ * . a , = > ae

hot pursuit of a criminal suspect. See

Warden v. Hayden, 387 U.S. 294 (1967);

United States v. Santana, 427 U.S. 38

(1976).

As a second example, suppose Shepherd

was seen storing jugs in a nearby wood

shed and then padlocking the door. There

too we would require a warrant, for a

building within the curtilage of the home

enjoys the same high expectation of pri-

vacy that the dwelling does. See Taylor

v. United States, 286 U.S. 1, 5 (1932);

Martin v. United States, ]83 F.2d 436,

439 (4th Cir. 1950). Cf. United States

v. Hayden, 140 F. Supp. 429, 435 (D. Md.

1956) ("shed .. . is protected against

unreasonable searches without regard to

whether or not it is within the curtilage

“4

5 The following examples are intend- ‘

ed for illustrative purposes only. e

of a private dwelling”). See also Katz

v. United States, 389 U.S. 347, 353 (1967)

(any intrusion upon "the privacy upon

which [one] justifiably relief" consti-

tutes a search within the meaing of the

fourth amendment).

What if Shepherd had carelessly

stacked the jugs beside his house and

then driven off on an errand? By leaving

the jugs in the open Shepherd would have

indicated no expectation of privacy that

his liquor would not be spotted and au-

thorities could act without a warrant.

See Katz v. United States, 389 U.S. 347,

353 (1967); United States v. Ramapuram,

632 F.2d 1149, 1153 (4th Cir. 1980),

cert. denied, 450 U.S. 1030 (1981).

: Finally, what if Shepherd had loaded

the jugs into the trunk of his Mercury,

. but then gotten into his pickup truck

% and driven off? Here too we would ex-

pect the authorities to recognize the

absence of exigent circumstances which

would justify a warrantless seizure,

and to dispatch one of their number to

obtain a warrant. Of course, surveill-

ance could continue, and if Shepherd's

neighbor were to appear on the scene

with a set of car keys and the obvious

intention of leaving in the Mercury,

the danger of losing the evidence would

justify an immediate seizure of the car.

The reasonableness of the govern-

ment's search in this case arose out of

both the genuine exigency of the situa-

tion and the unreasonableness of alter-

natives. To have required the agents

simply to confiscate the jugs and hold

them and Shepherd on the scene while one

of the agents drove fifty miles to Wins-

ton Salem in search of a federal magi-

strate to certify an inspection would

have been a pointless exercise in the

presence of clear probable cause. Such

a procedure would have been a far greater

intrusion into Shepherd's privacy than

the course of action actually taken. If

the liquid inside the jugs had turned out

to be spring water, Shepherd would have

been on his way in a few minutes.

We are not moved by the argument that

exigent circumstances fall away, and a

warrant is therefore required, as soon as

the driver of the suspect vehicle is ar-

rested, as apparently was the case here.

Chambers v. Maroney, 399 U.S. 42 (1970),

discussed above, clearly illustrates that

the arrest of an auto's occupants does

not preclude a warrantless search. The

6 The facts are unclear as to whet-

her Shepherd was arrested before or after

the search of his car. Probable cause to

arrest him existed at both points.

Chambers principle was affirmed in Texas

v. White, 423 U.S. 67 (1975) (per curiam),

in which police had seized the car of a

suspect accused of attempting to pass bad

checks. Just before the defendant was

arrested in his car in a bank parking lot,

officers saw him stuff papers between the

seats. Back at the police station, the

defendant refused to give consent to a

search of his impounded vehicle. Without

a warrant, the officers proceeded to

search the vehicle anyway, uncovering

four bad checks which the defendant had

tried to pass at another bank. The Su-

preme Court, in a per curiam opinion

(Brennan and Marshall, JJ., dissenting),

upheld the admissibility of the four

wrinkled checks, writing that, as in

Chambers, "the probable cause factor

that developed on the scene still ob-

tained at the station house." Id. at 68

(citations omitted). The absence of

exigent circumstances at the time the

search was conducted evidently did not

concern the Court.

The Fifth Circuit has interpreted

Texas v. White, Chambers v. Maroney,

and other Supreme Court authority as -

recognizing that "“exigence is to be

determined as of the time of seizure

of an auto, not as of the time of its

search." United States v. Mitchell,

538 F.2d 1230, 1232 (5th Cir. 1976)

(en banc), cert. denied, 430 U.S. 945

(1977). This we perceive to be an ac-

curate statement of the law and one

which makes clear the constitutionality

of the search in this case. The autho-

rities had ample cause to believe Shep- a

herd's Mercury was about to be used to

transport contraband.’ The agents’

No search, even one conducted under

the most exigent of circumstances, is

justified unless the government demonst-

rates that its officers had probable

cause to believe evidence of criminality

would be uncovered. Probable cause means

less than evidence which would justify

condenmation or conviction... . Prob-

able cause exists where the facts and

circumstances within [the officers']

knowledge and of which they had reason-

ably trustworthy information, [are] suf-

ficient in themselves to warrant a man

of reasonable caution in the belief that

an offense has been or is being committed

Brinegar v. United States, 338 U.S. 160,

]}75-76 (1948) (citations omitted).

parked beside the defendant's house, a

heightened expectation of privacy ob-

tained which the agents invaded without

a warrant. Second, we held that a more

reasonable cause would have been for two

of the agents to stand guard over the

vehicle while the third sought a search

warrant. Furthermore, since Bradshaw

was absent from the scene, no individual

;

liberty interest would have been impli-

cated merely by seizing and holding the

car.

Absent from Bradshaw and present in

this case is the compelling circumstance

of imminent flight. The pick-up truck

in Bradshaw was parked and unattended,

but Buel Shepherd was at the point of

climbing into his car and driving away.

This is the circumstance that prompted

the authorities to act. At the risk of

belaboring the point, we stress that,

assuming a heightened expectation of 7

privacy in one's vehicle when the car

is parked at home, this expectation must

nevertheless yield in a situation where

authorities have probable cause to be-

lieve that incriminating evidence is

about to take wing. In such a case, the

more reasonable course is to proceed

with a warrantless search and, if nothing

is found, promptly to release the suspect

and his or her vehicle.

We also think this case is distin-

guishable from United States v. Chadwick,

433 U.S. 1 (1977), and Arkansas v.

Sanders, 442 U.S. 753 (1979). In Chadwick

federal officials suspicious of a foot-

locker leaking talcum powder watched as

the defendant carried the trunk from a

train station to his waiting automobile.

After the defendant loaded the footlocker

into the trunk of his car, agents moved

in, arrested the suspect, and opened the

footlocker without a search warrant, dis-

Closing a large quantity of marijuana.

The Supreme Court invalidated the

search, rejecting the argument that the

warrant requirement of the fourth amend-

ment protects only interests associated

with the home. As a repository for the

personal effects of an individual, a

footlocker holds a greater expectation

of privacy than an automobile, the Court

reasoned, and it makes no difference that,

like the automobile, a footlocker is

highly mobile. The government should not

enter the zone of privacy associated with

a footlocker without a search warrant.

Arkansas v. Sanders, 442 U.S. 753

(1979), involved very similar facts, ex-

cept that the defendant had already de-

parted the airport in a taxi along with

his suspicious suitcase when police

stopped the cab. The Court rejected

the argument that the automobile excep-

tion applied. Writing in concurrence,

Chief Justice Burger stated the essential

position of the Court: 4

The relationship between the 4

automobile and the contraband 4

was purely coincidental, as . >a

in Chadwick. The fact that ;

the suitcase was resting in

the trunk of the automobile

at the time of respondent's

arrest does not turn this into

an "automobile" exception case.

The Court need say no more.

Id. at 767.

United States v. Chadwick and

Arkansas v. Sanders were considered at

length in United States v. Ross,

U.S. , 72 L.EG.2d 572 (1982). In

Ross, District of Columbia police offi-

cers acting on information that the de-

fendant was.peddling narcotics out of

his car located the suspect vehicle

traveling on the city streets. The car

was pulled over, and Ross was ordered

to get out. When a pistol was found in

the glove compartment, Ross was arrested

and handcuffed. One of the officers

took Ross' keys and opened the trunk,

where he discovered a closed brown paper

bag. He opened the bag and found a

number of glassine bags containing white

powder. The officer closed the paper

bag and placed it back in the trunk. The

car was driven to headquarters where a

search, also warrantless, disclosed a

zippered leather pouch. The pouch was

opened and found to contain $3,200 in

cash. A sample of the white powder in

the paper bag was also taken and upon

analysis determined to be heroin.

Prior to his trial for possession

of heroin with intent to distribute,

Ross moved to suppress the fruits of

the warrantless searchs of the paper

bag and leather pouch. The motion was

denied and Ross was eventually convicted.

On appeal the Supreme Court upheld

the search, holding that under the auto- .

mobile exception, officers "may conduct

a search of the vehicle that is as tho-

rough as a magistrate could authorize in

a search warrant ‘particularly describing

the place to be searched.'" Ross, 72

L.Ed.2d at 578, quoting U. S. Const.

amend. 4. The scope of such a search

warrant could include the compartments

and containers within the vehicle whose

contents were not in plain view. The

majority carefully distinguished Chad-

wick and Sanders on the grounds that in

those cases the object of the govern-

ment's searchwas confined the the inter-

ior of the footlocker and suitcase,

whereas the officers in Ross had prob-

able cause to search the entire vehicle.

We believe that the case before us

is more akin to Ross than to Chadwick

and Sanders.” Here the object of the

5 We admit considerable doubt that

the plastic jugs here are deserving of

the same privacy interest as the foot-

locker in Chadwick and the suitcase in

Sanders. However, the Ross court held

that all containers are to be accorded

agents’ search was not directed solely to

the interior of the few jugs which were

seen loaded into the trunk of Shepherd's

car. The agents had good reason to sus-

pect, based on the information they had

gathered as well as what they had seen

with their own eyes, that the car was an

instrumentality of Shepherd's illegal

whiskey enterprise, and that a search of

the vehicle would disclose additional

evidence. As it turned out, this hypo-

thesis proved correct; upon opening the

trunk the agents found thirty-eight

equal dicnity under the law. Ross, 72 L.

Ed.2d at 592. We are tempted to say that

plastic jugs, under the circumstances of

this case, “by their very nature cannot

support any reasonable expectation of

privacy because their contents can be

inferred from their outward appearance."

Arkansas v. Sanders, 442 U.S. 753, 764-

65 n.13 (1979). In the context of this

case, a plastic jug partakes more the

character of a gun case than a suit case.

gallons of illegal liquor, far more than

they had observed from their hiding place.

Under Ross, once the officers had prob-

able cause to search the vehicle, they

also acquired the authority to open any

of the closed contained found therein.

Iv.

We hold that the arrest of Buel Lee

Shepherd was supported by probable cause

and that the warrantless search of his

vehicle was justified under the automo-

bile exception.” His conviction is,

therefore,

AFFIRMED.

9 Because we find that the automobile “4

exception governs this case, we need not

consider whether the plain view doctrine

is also applicable. See Texas v. SUE

U.S.__, 75 L.Ed. 2d

United States v. Haynie, 637 F.2d 227

Titk Cir. 1980), cert. denied, 451 U.S.

972 (1981).

. Pee ——

ae» ee - Tea —=--s a A « ~ - ~~ a EP ee

MURNAGHAN, Circuit Judge, dissenting:

It is with no joy that I write to

announce dissent. Nevertheless, the

facts as to whether an exigency existed

justifying the jettisoning of the Fourth

_ Amendment safeguards, are the facts.

Buel Lee Shepherd was not free to drive

his vehicle away. His car keys had been

impounded even before the trunk of the

car had been opened. ? The motorcar

rested not on the public highway, where

. vehicles whizzing by emphasize the pre-

dominance of mobility, but on private

+ The insiBtence that Shepherd sur- ae

render his car keys, and the fact that E

the burden (which was never met) proper- ¥

ly rested on the shoulders of the police S,

who are trying to justify a warrantless

search and seizure to preve whether or

not Shepherd had been arrested made ir-

restible the conclusion that §

was effectively immobilized before the

search of the truck, and a fortiori, of

the opaque containers, took place.

TR: a IE aD Oe oe. rl

property legitimately employed by Shep-

herd as a parking area. There were no

less than two policemen so that, even

apart from the possible availability of

a warrant through telephonic or wireless

communication, one of them could have re-

mained guarding the car and insuring its

immobility while the other proceeded

with the arrested Shepherd to a place

where a warrant could~be obtained.

Consequently, there simply was no

exigency, and, absent it, no justifi-

cation for disregard of the Fourth

Amendment requirement that a warrant

be obtained. Katz v. United States,

389 U.S. 347 (1967).

CERTIFICATE OF SERVICE

This is to certify that a copy of the

foregoing Petition for a Writ of Certio-

rari to the Supreme Court of the United

States of America was duly served upon

opposing counsel by depositing a copy

‘of the same with the United ep Mail

at the Post Office in Elkin, North Caro-

lina, in an envelope, with postage pre-

. paid, addressed as follows:

Solicitor General

| United States Department of Justice

| Washington, D. C. 20530

* /

or P .

PYM ls

a / f =

. ! “ae Petitioner —

656 North Bridge Street

Post Office Box 307

¥* Elkin, North Carolina 28621

i Telephone: (919) -835-1351

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