Petition for Writ of Certiorari — California v. Carney

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83-859

NO.

IN THE

SUPREME COURT OF THE UNITED STATS

October Term, 1983

PEOPLE OF THE STATE OF CALIFORNIA,

Petitioner,

CHARLES R. CARNEY,

Respondent.

PETITION FOR WRIT OF CERTIORARI

JOHN K. VAN DE KAMP,

Attorney General of the

State of California

MICHAEL D. WELLINGTON,

Deputy Attorney General

LOUIS R. HANOIAN,

Deputy Attorney General

110 West A“ Street, Suite 700

San Diego, California 92101

Telephone: (619) 237-7281

Attorneys for Petitioner

QUESTIONS PRESENTED

1. Whether the Fourth and

Fourteenth Amendments to the United

States Constitution permit law enforce-

ment officers to conduct a search of a

fully mobile “motor home" without a

search warrant, pursuant to the vehicle

exception to the warrant requirement

created by this Court in Carroll v.

United States (1925) 267 U.S. 132, 149,

when the officers have probable cause

to believe the motor home contains that

which is lawfully subject to seizure.

2. Whether the underlying

basis for the vehicle exception is

inherent mobility, as this Court

announced in Carroll, or whether the

California Supreme Court correctly

interpreted the United States Consti-

tution when it repudiated the Carroll

reasoning and announced the underlying

ii.

basis for the vehicle exception was

reduced expectation of privacy.

3. If a motor home is

entitled to different treatment from

other vehicles, how does one distin-

guish between a motor home and any

other vehicle for purposes of the

vehicle exception.

iii.

TOPICAL INDEX

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

STATEMENT OF THE CASE

STATEMENT OF FACTS

HOW THE FEDERAL QUESTION

IS PRESENTED

REASONS FOR GRANTING THE WRIT

ARGUMENT

THE CALIFORNIA SUPREME

COURT ERRONEOUSLY

DISREGARDED PRECEDENT

OF THIS COURT IN HOLDING

THAT MOBILITY OF A

VEHICLE HAS BEEN

SUPPLANTED BY REDUCED

EXPECTATION OF PRIVACY

AS THE BASIS FOR THE

VEHICLE EXCEPTION TO

THE FOURTH AMENDMENT'S

WARRANT REQUIREMENT

Pages

3- 4

4- 8

S8- 9

10 - 13

14 30

14 - 23

iv.

TOPICAL INDEX

(continued)

11 PETITIONER'S WRIT OF

CERTIORARI SHOULD BE

GRANTED TO RESOLVE A

CONFLICT IN THE FEDERAL

CIRCUIT COURTS OF

APPEALS AS TO THE BASIS

FOR THE VEHICLE EXCEPTION 24 = 25

III THE CALIFORNIA SUPREME

COURT'S FAILURE TO

DEFINE "MOTOR HOME" IS

CONTRARY TO THE NEED TO

PROVIDE LAW ENFORCEMENT

WITH WORKABLE GUIDELINES

BY WHICH TO REGULATE

THEIR CONDUCT 26 - 30

CONCLUSION 30

APPENDICES

Vv.

TABLE OF AUTHORITIES

CASES

Arkansas v. Sanders (1979)

442 U.S. 753

Brinegar v. United States

(1949) 338 U.S. 160

Cady v. Dombrowski (1973)

413 U.S. 433

Carroll v. United States

(1925) 267 U.S. 132 15, 20,

Chambers v. Maroney (1970)

399 U.S. 42

Colorado v. Bannister (1980)

449 U.S. 1

Dyke v. Taylor Implement Co.

(1968) 391 U.S. 216

New York v. Belton (1981)

453 U.S. 454

Pecple v. Carney (1983)

34 Cal.3d 597 15,

People v. Chavers (1983)

33 Cal. 3d 462

People v. Laursen (1972)

8 Cal.3d 192

People v. McKinnon (1972)

7 Cal.3d 899

21, 25

2, 14,

17, 27

vi.

TABLE OF AUTHORITIES

(continued)

CASES Pages

South Dakota v. Opperman

(1976) 428 U.S. 364 22.

State v. Million (Ariz. 1978)

583 P. 2d 897 17

State v. Sardo (Ariz. 1975)

543 P. 2d 1138 17

United States v. Cadena

(5th Cir. 1979)

588 F.2d 100 16, 21, 25

United States v. Clark

(5th Cir. 1977)

559 F.2d 420 23

United States v. Cusanelli

(6th Cir. 1973)

472 F.2d 1204 16, 25

United States v. Gonzalez-Rodriguez

(9th Cir. 1975)

513 F.2d 928 25

United States v. Lovenguth

(9th Cir. 1975)

514 F.2d 96 16, 21, 25

United States v. Miller

(10th Cir. 1972)

460 F.2d 582 16, 21. 25

United States v. Montgomery

(10th Cir. 1980)

620 F.2d 753 21, 25

vii.

TABLE OF AUTHORITIES

(continued)

CASES Pages

‘United States v. Rodgers

(5th Cir. 1971)

442 F.2d 902 21, 25

United States v. Ross (1982)

456 U.S. 798 15, 18, 27

United States v. Wiga

(9th Cir. 1981)

662 F.2d 1325 24

United States v. Williams

(9th Cir. 1980)

630 F.2d 1322 24

CONSTITUTIONS

United States Constitution,

Fourth Amendment 23, 24, 26, 29

Fourteenth Amendment 26

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

PEOPLE OF THE STATE OF CALIFORNIA,

Petitioner,

CHARLES R. CARNEY,

Respondent.

PETITION FOR WRIT OF CERTIORARI

Petitioner, State of California,

respectfully prays that a writ of cer-

tiorari be issued to review the judgment

and opinion of the Supreme Court of the

State of California reversing the order

of probation, entered on September 8,

1983. A petition for rehearing was

denied October 6, 1983. The remittitur

was issued on October 11, 1983.

2 So

OPINIONS BELOW

The opinion of the California

Supreme Court reversing the order of

probation (People v. Carney (1983) 34

Cal.3d 597) appears as Appendix A of

this petition. A copy of the California

Supreme Court's order denying the peti-

tion for rehearing without opinion

appears as Appendix B.

JURISDICTION

The judgment of the California

Supreme Court was filed on September 8,

1983. A timely petition for rehearing

was denied on October 6, 1983. This

petition is filed within 60 days of that

date and is therefore timely. This

Court's jurisdiction is invoked under

28 U.S.C. section 1257(3).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution,

Amendments Five and Fourteen.

STATEMENT OF THE CASE

In an information filed by the

District Attorney of San Diego County of

September 14, 1979, respondent, Charles

Richard Carney, was charged with a

single count of possession of marijuana

for sale. (CT 1.)/

Respondent's motion to suppress

evidence taken from the search of his

motor home was submitted on the tran-

script of the preliminary hearing and

1. The designation "CT" refers to

the Clerk's Transcript on appeal. The

designation "RT" refers to the

Reporter's Transcript on appeal.

subsequently denied on October 19, 1979.

(CT 41.)

On November 5, 1979, respon-

dent withdrew his not guilty plea and

entered a plea of nolo contendere to the

charge. On January 8, 1980, respondent

was granted probation for a period of

three years. (CT 34-36, 44.)

Respondent's conviction was

affirmed by the California Court of

Appeal on March 18, 1981. On September

8, 1983, the California Supreme Court

reversed respondent's grant of proba-

tion.

STATEMENT OF FACTS”/

While engaged in an ongoing

investigation into narcotics activities

2. The facts are taken from the

Reporter's Transcript of the preliminary

examination held on September 5, 1979.

This testimony served as the sole evi-

dentiary basis for the trial court's

decision to deny respondent's motion to

suppress evidence.

= 2

in downtown San Diego on May 31, 1979,

Drug Enforcement Administration (DEA)

Agent Robert Williams observed respon-

dent, Charles Carney, approach a young :

Mexican boy. Williams continued to

observe the transaction because respon-

dent did not seem to belong in the area.

Agent Williams watched as respondent and

the boy got into a Dodge Mini Motor Home

which was parked in a public parking lot

at 4th and G Streets. (RT 4-8, 10.)

Agent Williams noted the

license number of the motor home and

recalled he had, on numerous occasions,

received informaton that this particular

vehicle was involved in drug activity.

The information was received by letter

and telephone contacts from an organiza-

tion known as “WETIP" (We Turn In

Pushers). Agent Williams knew the motor

home belonged to Lee Bowman. Williams

also knew an unidentified man had taken

Bowman's place in dealing narcotics, and

exchanging marijuana for sex with young

boys, from the motor home. Williams

estimated the age of the boy respondent

escorted into the motor home to be 15 or

16. (RT 8-10, 14-15, 51, 55.)

The boy emerged from the motor

home approximately an hour and a quarter

after entry. Williams, along with

Agents Clem and Peralta, followed the

boy, made contact with him and informed

the boy they were agents conducting a

narcotics investigation. In response

to Williams’ questions, the boy stated

the “older man" asked him to have sex

with him. He allowed the older man to

orally copulate him in exchange for a

small bag of marijuana. (RT 15-22.)

Williams took the boy back to

the motor home and had the boy knock on

2 955

the door. When respondent opened the

door and stepped out of the motor home,

Williams, Clem and Peralta identified

themselves as agents. Agent Clem

stepped up one step and looked inside

the motor home to see if there were any

other occupants in the vehicle. Clem

observed, in plain view on a table

inside the motor home, a large bag of

marijuana, a small bag of marijuana,

some Ziploc baggies and a scale. When

Clem informed Williams of his observa-

tions, Williams placed respondent under

arrest. Photographs of the interior of

the motor home were taken by Agent

Williams. The vehicle was then driven

to the National City office of the

Narcotics Task Force for an inventory.

During the inventory search marijuana

was found inside the cupboard above the

table and inside the refrigerator. (RT

23-27, 29, 34-35, 40-49, 72-73.)

HOW THE 12 —

In the trial court, counsel

for respondent filed a motion to sup-

press the evidence seized from his motor

home on the ground the seizure violated

both the federal and state constitu-

tions. (CT 2-16.) The trial court

denied respondent's motion on several

bases, one of which was that the search

of the motor home and seizure of evi-

dence therefrom was authorized by the

vehicle exception to the Fourth Amend-

ment's warrant requirement. Respondent's

argument to the California Court of

Appeal, that the “automobile exception"

did not apply to a motor home, was

rejected by the Court of Appeal.

Respondent presented the same argument

2 @<

to the California Supreme Court. In its

opinion, the California Supreme Court

held a motor home is fully protected by

the United States Constitution's Fourth

Amendment guarantee against —

search and seizure and is not subject to

the “automobile except ion“ to the

warrant requirement. (34 Cal.3d 597,

610; appen. A, p. 30.) Underlying the

California Supreme Court's decision is

the premise that inherent mobility has

been supplanted by reduced expectation

of privacy as the primary reason for

the “automobile exception." (34 Cal.3d

at pp. 604-605; appen. A, pp. 11-17.)

Petitioner's timely petition for

rehearing unsuccessfully urged the

California Supreme Court's decision was

erroneously based on a mistaken premise,

and that the court failed to define the

scope of its rule.

- 10 -

REASONS FOR GRANTING THE WRIT

The California Supreme Court

has erroneously disregarded the holdings

of this Court concerning the basis under-

lying the vehicle exception to the Fourth

Amendment's warrant requirement. The

California Supreme Court held inherent

mobility of a vehicle no longer provides

the basis for the vehicle exception.

Instead, the California Supreme Court

erroneously referred to the exception as

an “automobile exception" and concluded

it is premised on a reduced expectation

of privacy an individual has in his

automobile. Based upon this false pre-

mise, the California Supreme Court held

the search of respondent's motor home

could not be based on the “automobile

exception" because an individual has a

greater expectation of privacy ina

motor home than in an automobile.

5 if «

The premise underlying the

California Supcene Court's decision con-

flicts with close to 60 years of prece-

dent from this Court. According to the

opinions of this Court, inherent mobi- ,

lity of a vehicle creates sufficient

exigency to render a warrant unnecessary

to search a vehicle, provided there is

probable cause to search. Thus, this

Court should grant the writ to insure

the Federal Constitution is properly

interpreted in accordance with this

Court's decisions.

This case is critically

important because there are millions

of vehicles travelling the highways

of this nation which could be called

"motor homes." Most of these vehicles

have added room and facilities inside

which make them particularly useful as

mobile criminal operational centers.

2 12 -

Increasingly law enforcement is finding

the larger models being used as illegal

drug laboratories. Though many of the

vehicles which could be characterized

as motor homes are large, they are no

less mobile than a subcompact automobile.

In fact, because they may be fully self-

contained, such vehicles are far more

mobile than the traditional automobile.

Though the California Supreme

Court creates a constitutionally signi-

ficant class of vehicles, those vehicles

which make up the class remain a mystery

because the California Supreme Court

never defines the class. Law enforce-

ment officers have been saddled with the

impossible burden of discerning the

constitutional significance of the

hunreds of shapes, makes and present

uses of motor vehicles. This burden

Stands in stark contrast to need for

e 13 «

clear standards or “brightlines* which

has been recognized by this Court.

(New York v. Belton (1981) 453 U.S. 454,

458.) Thus, instead of interpreting the

United States Constitution in such a

fashion as to provide guidance to those

sworn to enforce its provisions, the

California Supreme Court has created

a rule which defies definition. This

unacceptable state of affairs can be

settled only through intervention from

this Court.

_ eh i a a a eee

- 14 «

THE CALIFORNIA SUPREME COURT

ERRONEOUSLY DISREGARDED

PRECEDENT OF THIS COURT IN

HOLDING THAT MOBILITY OF A

VEHICLE HAS BEEN SUPPLANTED

BY REDUCED EXPECTATION OF

PRIVACY AS THE LASIS FOR

THE VEHICLE EXCEPTION TO

In its majority opinion, the

California Supreme court engages in a

discussion of the genesis of what it

calls the “automobile exception" to the

warrant requirement of the Fourth

Amendment. (People v. Carney (1983) 34

Cal.3d 597, 604-605; appen. A, pp. 9-17.)

Though it recognized the Original reason

for the exception was the inherent mobi-

lity of vehicles, the California Supreme

Court incorrectly concluded mobility is

no longer the prime justification for

the automobile exception under the

—

federal constitution, focusing instead

on the diminished expectation of privacy

which surrounds the automobile. (People

v. Carney, supra, 34 Cal.3d pp. 604-605;

appen. A, pp. 10-17.) The California

Supreme Court's conclusion is contrary

to this Court's decisions and accepted

policy.

The overwhelming bulk of

authority supports the position the

Primary reason for the vehicle exception

under the federal constitution is the

inherent mobility of the vehicle.

Mobility was the justification used

by this Court 59 years. ago when it

announced the vehicle exception.

(Carroll v. United States (1925) 267

U.S. 132, 153.) As recently as 1982.

this Court confirmed mobility as the

basis for the exception. (United States

. Ross (1982) 456 U.S. 798, 804-809.)

- 16 -

Between 1925 and 1982 this Court

repeatedly reconfirmed this premise.

(See, Colorado v. Bannister (1980) 449

U.S. 1, 3; Chambers v. Maroney (1970)

399 U.S. 42, 48-49; Dyke v. Taylor

Implement Co. (1968) 391 U.S. 216, 221;

Brinegar v. United States (1949) 338

u.S. 160, 164.) The United States

Circuit Courts of Appeals have applied

the Carroll analysis. (See, United

States v. Cadena (5th Cir. 1979) 588

F.2d 100, 102; United States v.

Lovenguth (9th Cir. 1975) 514 F.2d 96,

99; United States v. Cusanelli (6th Cir.

1973) 472 F.2d 1204, 1206; United States

v. Miller (10th Cir. 1972) 460 F.2d 582,

585.) The Supreme Court of Arizona twice

addressed the vehicle exception in the

context of a motor home case and based

its decisions on the inherent mobility

e 19 «

of the vehicle. (State v. Million

(Ariz. 1978) 583 P.2d 897, 902; State

v. Sardo (Ariz. 1975) 543 P.2d 1138,

1142.) As recently as February of 1983,

the California Supreme Court recognized

mobility as the primary basis for the

vehicle exception. (People v. Chavers

(1983) 33 Cal.3d 462, 468-469; see also,

People v. Laursen (1972) 8 Cal.3d 192,

201; People v. McKinnon (1972) 7 cal. 3d

899, 907.)

For whatever reason, the

California Supreme Court chose to rede-

fine the exception ignoring this Court's

precedent. In its discussion of United

States v. Ross (People v. Carney, supra,

34 Cal. Id at pp. 605-606, fn. 3; appen.

A, pp. 14-16 ) the California court

ignored the Ross court's discussion of

mobility as the primary basis for the

« 16

vehicle exception. (United States v.

Ross, supra, 456 U.S. at pp. 804-809.)

Such action demonstrates a steadfast

refusal to follow this Court's inter-

pretation of the United States

Constitution.

This case demonstrates the

critical importance of the reason

underlying tne exception. Obviously,

if mobility is the primary reason for

the vehicle exception an operable motor

home, like the one in this case, would

be subject to the exception. A contrary

result was reached in this case because

it was analyzed by the court purely on

a privacy theory, completely ignoring

mobility. Thus, it is evident the basis

for the vehicle exception is a critical

factor in the analysis of vehicle search

cases. Defining the basis for the

exception is the exclusive province of

- 19 -

this Court, and this Court has defined

the exception as one based on mobility.

The California Supreme Court's disagree-

ment on this point cannot survive.

One reason for the California

Supreme Court's mistaken interpretation

of the basis for the exception is demon-

strated by its characterization of the

exception as an “automobiie exception"

instead of a vehicle exception. Though

commonly referred to as the automobile

exception, Chief Justice Taft announced

a vehicle exception in Carroll v. United

States.

"On reason and authority

the true rule is that if the

search and seizure without a

warrant are made upon probable

cause, that is, upon a belief,

reasonably arising out of cir-

cumstances known to the seizing

officer, that an automobile

or other vehicle contains that

aw is subject to

seizure and destruction, the

search and seizure are valid.

The Fourth Amendment is to be

e 2 «

construed in the light of what

was deemed an unreasonable

search and seizure when it was

adopted, and in a manner which

will conserve public interests

as well 23s the interests and

rights of individual citizens."

87 united 9145

67 U.S. at p.

— added.)

The rationale for the rule

underscores its application to all

vehicles.

"We have made a somewhat

extended reference to these

statutes to show that the

guarantee of freedom from

unreasonable searches and

seizures by the Fourth Amend-

ment has been construed, prac-

tically since the beginning of

the Government, as recognizing

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

hig otor boat gon Or

5 J hes for e 8e

ccality of jurisdictic

ch the warrant m

= 21 «

ht." (Carroll v. United

The application of the Carroll rule to

vehicles and vessels other than auto-

mobiles further demonstrates mobility

is the true basis for the exception.

(See, United States v. Montgomery (10th

Cir. 1980) 620 F. 2d 753, 760, (warrant-

less search of an airplane and camper);

United States v. Cadena, supra, 588 F.2d

at p. 102, (search of a ship); United

States v. Lovenguth, supra, 514 F.2d at

p. 99 (search of a camper) ; United

States v. Miller, supra, 460 F.2d at p.

585, (search of a fully self-contained

Econoline van); and ited States v.

Rodgers (Sth Cir. 1971) 442 F.24 902,

904, (search of camper).) Without

question, the exception is based upon

the inherent mobility of the vehicle and

the exception applies to every operable

vehicle in use, be it an automobile, a

motor boat, or a Conestoga Wagon, the

19th century equivalent of a motor home.

Petitioner does not suggest

expectation of privacy does not have a

place in the analysis of a vehicle

search. Indeed, the lack of a reason-

able expectation of privacy serves as an

independent justification for a warrant-

less search. (Arkansas v. Sanders

(1979) 442 U.S. 753, 761.) Once a

vehicle has been rendered immobile,

expectation of privacy becomes a factor

for consideration in evaluating the

propriety of a warrantless search.

(See, South Dakota v. Opperman (1976)

428 U.S. 364, 368; Cady v. rowski

(1973) 413 U.S. 433, 441-442.) However

the vehicle in this case was Clearly not

rendered immobile. Furthermore, peti-

tioner is aware of no authority prior to

e 33 «

the California Supreme Court's decision

in this case, which has held expectation

of privacy totally supplants mobility as

the touchstone for analysis of a warrant-

less search of an occupied vehicle in a

public place. It is critical for this

Court to grant petitioner's writ of

certiorari to insure the vehicle excep-

tion to the Fourth Amendment's warrant

requirement is properly and consistently

applied in all the courts of this land.

R * *

» £6 «

PETITIONER'S WRIT OF

CERTIORARI SHOULD BE

GRANTED TO RESOLVE A

CONFLICT IN THE FEDERAL

CIRCUIT COURTS OF APPEALS

AS TO THE BASIS FOR THE

VEHICLE EXCEPTION

The California Supreme Court

is not the only appellate court in the

country to hold expectation of privacy

has supplanted mobility as the basis for

the vehicle exception. The Ninth Circuit

Court of Appeals held a motor home is not

subject to the vehicle exception because

of the heightened expectation of privacy

associated with the vehicle. (United

States v. Williams (9th Cir. 1980) 630

F.2d 1322, 1326; accord, United States

v. Wiga (9th Cir. 1981) 662 F.2d 1325,

1329.) Williams and Wiga provide a

stark contrast to cases from the other

federal circuits and prior Ninth Circuit

cases which apply the mobility analysis

— =

of Carroll v. United States, supra, 267

U.S. at page 153, to searches of vehicles

and vessels capable of serving as one's

home. (In the Tenth Circuit, United

States v. Montgomery, supra, 620 F.2d

at p. 760; United States v. Miller,

supra, 460 F.2d at p. 585; in the Ninth

Circuit, United States v. Lovenguth,

supra, 514 F.2d at p. 99; United States.

v. Gonzalez-Rodriguez (9th Cir. 1975)

513 F. 2d 928, 931; in the Sixth Circuit,

United States v. Cusanelli, supra, 472

F.2d at p. 1206; and in the Fifth

Circuit, United States v. Cadena, supra,

588 F.2d at pp. 101-102; United States

v. Clark (5th Cir. 1977) 559 F.2d 420,

423-424; United States v. Rodgers (5th

Cir. 1971) 442 F.2d 902, 903.) This

schism in the circuits serves as an

independent and compelling justification

for the granting of petitioner's writ.

—

111

THE CALIFORNIA SUPREME

COURT'S FAILURE TO

DEFINE “MOTOR HOME”

IS CONTRARY TO THE

NEED TO PROVIDE LAW

ENFORCEMENT WITH

WORKABLE GUIDELINES

BY WHICH TO REGULATE

THEIR CONDUCT

The Fourth Amendment of the

United States Constitution es applied to

the states by the Fourteenth Amendment

protects individuals from unreasonable

searches and seizures. A police officer,

who is not trained to make fine legal

distinctions must nonetheless insure his

conduct in searching a vehicle is reason-

able. Guidance for the officers is

essential. An indisputable need for

Clear standards or “brightlines" to

guide the conduct of police in vehicle

searches has been articulated by this

Court and by the California Supreme

Court. (New York v. Belton (1981) 453

U.S. 454, 458; United States v. Ross,

supra, 456 U.S. at pp. 803-804; People |

v. Chavers, supra, 33 Cal.3d at p. 469.)

Flying in the face of this

pressing need for stability in search

cases is the California Supreme Court's

steadfast refusal to define the term

"motor home." (People v. Carney, supra,

34 Cal.34 at p. 614 (dissenting opinion);

appen. A, pp. 46-47.) The California

Supreme Court has thus created a consti-

tutionally significant class of vehicles,

without providing a useable definition

of the class.

The term “motor home" defies

objective definition. The California

Supreme Court simply concluded a motor

home is a hybrid“ between a motor

vehicle and a home. (People v. Carney,

Supra, at p. 606; appen. A, p. 17.)

Such a characterzation is of no help to

law enforcement officers who must now

distinguish between motor homes and

motor vehicles. The particular hybrid

referred to by the court has the charac-

teristics of a chameleon and covers the

entire range of vehicle configurations.

A subcompact car where the driver keeps

a sleeping bag may be done“ just as the

Winnebago with interior plumbing, refri-

geration and sleeping for six may simply

provide transportation. Present use and

subjective intent of the user of the

vehicle is the critical factor to the

characterization of a vehicle as a motor

home. Unlike mobility, such factors are

not subject to objective confirmation.

On a daily basis law enforce-

ment will come in contact with every

imaginable vehicle in innumerable

situations. They will be expected to

make reasonable decisions regarding

search and seizure based upon objective

factors. Yet, in vehicle search cases

the California Supreme Court has taken

away the brightline of mobility as the

basis for the search and replaced this

brightline with the fuzzy concepts of

present use and intent. By erasing the.

brightline, this case does little but

announce a new search and seizure issue

which will require law enforcement to

work “at risk" and will both encourage

and require years of litigation to

fashion a workable rule. This rule was

announced under the guise of the Fourth

Amendment of the United States Consti-

tution. In light of the acknowledged

need for brightlines, it is vitally

important to the citizens of al. states

and to law enforcement officials for

this Court to ensure a workable, readily

@ 96 «

def inable rule to apply to all vehicle

searches.

CONCLUSION

For the foregoing reasons

petitioner respectfully submits that

the writ of certiorari should issue to

review the decision of the Supreme Court

of the State of California.

Respectfully submitted,

JOHN R. VAN DE KAMP,

Attorney General of the

State of California

MICHAEL D. WELLINGTON,

Deputy Attorney General

IS R. HANOIAN,

Deputy Attorney General

Attorneys for Respondent

LRE:mb/bah

11/21/83

SD80DA0 206

APPENDIX A

[Filed September 8, 1983]

IN THE SUPREME COURT OF THE

STATE OF CALIFORNIA

No. CRIM 22047

Superior Court No. CR 47927

OPINION

THE PEOPLE,

Plaintiff and Respondent,

CHARLES R. CARNEY,

Defendant and Appellant.

Defendant was charged with

possession of marijuana for sale.

(Health & Saf. Code, § 11359.) After

unsuccessful motions to suppress evi-

dence seized from his motor home, defen-

dant pleaded nolo contendere and was

SEE DISSENTI PINION

granted probation. He appeals from that

order.

The major issue presented is

whether the warrantless search of defen-

dant's motor home was justified by an

exception to the warrant requirement.

The People seek to justify the search

on two alternate theories: (1) the

automobile exception and (2) the pro-

tective sweep exception.2/ We conclude

that neither of these proposed justifi-

cations is applicable under the facts of

this case and hence the order must be

reversed.

1. The People have apparently

abandoned their contention, raised

below, that the motor home was validly

searched as an “instrumentality of the

crime.“ In any event, our decision in

People v. Minjares (1979) 24 Cal.3d

410, 421-422, explicitly rejected this

argument.

e fe} «

Agent Robert Williams of the

Drug Enforcement Administration under-

took a surveillance of suspected drug

dealer Lee Bowman in the Horton Plaza

area of downtown San Diego. Williams

noticed defendant because “he did not

look like he fit in the area there, and

he was approaching a Mexican boy and

talking to him." Defendant and the

youth walked to a nearby parking lot,

entered a Dodge motor home parked there

and closed the curtains, including one

across the front window.

Williams noted the license

plate number of the motor home and

recalled having received uncorroborated

information from which he inferred that

defendant “had taken the place of the

person [i.e., Bowman] we were following

and [that he was] dealing narcotics."

e Ahead

The information was furnished by an

organization called "WeTip" (We Turn in

Pushers); it suggested that the motor

home was associated with an individual

who reportedly was exchanging marijuana

for sex.

Additional officers, including

an agent by the name of Clem, arrived in

response to a request by Williams. The

motor home was kept under surveillance

during the entire hour and a half that

defendant and the youth were inside.

After the youth left the motor home the

officers followed, stopped and questioned

him. He told them the occupant of the

motor home had given him marijuana in

exchange for allowing the man to perform

oral copulation on him.

The youth then complied with

the officers’ request that he return to

the motor home, knock on the door, and

o AaS

ask defendant to come out. Defendant

answered the door and as he stepped out

of the motor home, the agents identified

themselves as law enforcement officers.

Agent Clem entered the motor home; '

inside he observed marijuana, ziploc

bags, and a scale on a table. On the

basis of Clem's observations, Williams

arrested defendant, seized the motor

home, and drove it to the police sta-

tion. A subsequent search of the motor

home revealed additional marijuana in

the cupboards and refrigerator.

At the preliminary hearing

defendant moved to suppress the evidence

seized from both searches of the motor

home. The motion was denied by the

magistrate on the ground that as to the

initial search, Agent Clem had the right

to enter to look for other persons; the

more thorough second search was upheld

as a standard inventory search. Defen-

dant unsuccessfully renewed his suppres-

sion motion in the superior court, which

found that (1) there was sufficient pro-

bable cause to arrest defendant; (2) the

search of the motor home was authorized

under the automobile exception; and (3)

the motor home itself could be seized as

an instrumentality of the crime.

Article I, section 13, of the

California Constitution establishes the

tight of the people of this state to be

secure in their persons, houses, papers

and effects against unreasonable searches

and seizures. The Fourth Amendment pro-

vides a similar guarantee. This protec-

tion has repeatedly been interpreted to

require the impartial approval of a

judicial officer before undertaking most

searches. (Payton v. New York (1980)

o fa? o

445 U.S. 573, 583-585; People v. Dalton

(1979) 24 Cal.3d 850, 855.) “In the

ordinary case .. a search of private

property must be both reasonable and

pursuant to a properly issued search

warrant." (Arkansas v. Sanders (1979)

442 U.S. 753, 758.)

The importance of the judicial

warrant cannot be overemphasized: "'The

warrant requirement has been a valued

part of our constitutional law for

decades, and it has determined the result

in scores and scores of cases in courts

all over this country. It is not an

inconvenience to be somehow “weighed”

against the claims of police efficiency.

It is, or should be, an important working

part of our machinery of government,

operating as a matter of course to check

the “well-intentioned but mistakenly

overzealous executive officers" who are

o Rne®

a part of any system of law enforcement’

.. By requiring that conclusions

concerning probable cause and the scope

of a search ‘be drawn by a neutral and

detached magistrate instead of being

judged by the officer engaged in the

often competitive enterprise of ferreting

out crime' [citation], we minimize the

risk of unreasonable assertions of exe-

cutive authority." (Id. at pp. 758-759.)

Thus, searches conducted without the

benefit of the judicial warrant process

are per se unreasonable under the

Fourth Amendment — subject only to a

few specifically established and well-

delineated except ions. (Mincey v.

Ar i zona (1978) 437 U.S. 385, 390,

quoting Katz v. United States (1967)

389 U.S. 347, 357; accord, People v.

Minjares, supra, 24 Cal.3d at p. 416.)

o i®

It is against this background

that we examine defendant's challenge to

the warrantless search of the living

compartment of his motor home. If that

search is to be upheld, it is the state's

burden to show that it falls within one

of the "few carefully circumscribed and

jealously guarded exceptions" (People v.

Dalton, supra, 24 Cal. zd at p. 855) to

the warrant requirement. (People v.

Dumas (1973) 9 Cal. 3d 871, 881; Arkansas

v. Sanders, supra, 442 U.S. at p. 760;

McDonald v. United States (1948) 335

U.S. 451, 456.)

In the present case the state

seeks to justify the search primarily

under the so-called "automobile

exception.” Our formulation of the

controlling principles of that doctrine

provides that "officers are empowered

- »« to search an automobile as ‘long

- A-10 -

as it can be demonstrated that (1)

exigent circumstances rendered the

obtaining of a warrant an inpossible

or impractical alternative, and (2)

probable cause existed for the search.“

(Wimberly v. Superior Court (1976) 16

Cal. 3d 557, 563.)

The “automobile exception" had

its genesis in Carroll v. United States

(1925) U.S. 132; it has since been

expanded and extensively litigated to

the point that this area of search and

seizure law is now characterized as

"troubled" (United States v. Ross (1982)

798, 172 L. Ed. 2d 572, 589)) and

"something less than a seamless web"

(Cady v. Dombrowski (1973) 413 U.S.

433, 440). The court in Carroil pre-

mised its analysis on the notion that

there is a constitutional difference

between houses and cars. The underlying

- A-ll -

rationale for this distinction was the

inherent mobility of automobiles. 3

(Carroll, supra, 267 U.S. at p. 153;

Cooper v. California (1967) 386 U.S. 58,

59; see also Katz, Automobile Searches

and Diminished Expectations in the

Warrant Clause (1982) 19 M. cr in. L. Rev.

557, 563-565 (hereafter referred to as

Katz).) California courts have indepen-

dently relied on similar reasoning.

(People v. Laursen (1972) 8 Cal. 3d 192,

201; People v. McKinnon (1972) 7 Cal. 3d

899, 907; People v. Odom (1980) 108

Cal.App.3d 100, 107.)

Although subsequent decisions

have purported to rely on the mobility

justification, the courts have recog-

nized that this reasoning alone fails

to support their sustaining of "“warrant-

less searches of vehicles . . in cases

in which the possibilities of the

- A-12 -

vehicle's being removed or evidence in

it destroyed were remote, if not non-

existent." (Cady v. Dombrowski, supra,

413 U.S. at pp. 441-442; accord, United

States v. Chadwick 11977 433 U.S. 1, |

12; South Dakota v. Opperman (1976) 428.

U.S. 364, 367.) This is demonstrated

first by the line of cases in which

warrantless searches were upheld regard-

less of the automobile's actual mobi-

lity, e.g., where there was no immediate

danger that the vehicle would be removed

from the jurisdiction. (See, e.g., Cady,

supra, 413 U.S. 433 [car, disabled as

result of accident, in control of police;

driver, sole occupant, arrested and

hospitalized]; Chambers v. Maroney

(1970) 399 U.S. 42 [occupants of car

arrested and car taken to police

station]; Cooper v. California (1967)

386 U.S. 58 [defendant arrested and car

- A-13 -

impounded J.) Conversely, another line

of decisions disapproves certain warrant-

less searches of containers despite the

recognition of their “mobility."

(Sanders, supra, 442 U.S. 753 (suitcase

in trunk of car]; Chadwick, supra, 433

U.S. 1 [footlocker in trunk of car];

People v. Minjares, supra, 24 Cal.3d at

p. 418 lreal, rather than theoretical,

exigencies are required before luggage

may be searched without a warrant]; see

also United States v. Ross, supra, 456

U.S. at p. 172 L. Ed. 2d at pp. 584-

586, 592-593] [containers in cars in

which there is probable cause to believe

contraband is being transported deter-

mined to be less protected than con-

tainers in other settings]; but see

- A-14 -

Coolidge v. New Hampshire (1971) 403

U.S. 443, 461, fn. 18.27

In the face of this apparent

volatility, the courts have recognized

that mobility is no longer the prime

justification for the automobile excep-

tion; rather, “the answer lies in the

diminished expectation of privacy which

surrounds the automobile." (Chadwick,

supra, 433 U.S. 1, 12; People v.

Minjares, supra, 24 Cal.3d at p. 418;