Petitioners Brief — California v. Carney

Ottica « Supreme Coun Us”

ILED

4UN Wes

NO. 83-859 ‘

ieee eae STEVAS

SUPREME COURT OF THE UNITED STATES

October Term, 1983

PEOPLE OF THE STATE OF CALIFORNIA,

Petitioner,

Ve.

CHARLES R. CARNEY,

Respondent.

BRIEF ON THE MERITS

JOHN K. VAN DE KAMP,

Attorney General of the

State of California

STEVE WHITE, Chief Assistant

Attorney General

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

PETITION FOR CERTIORARI FILED NOVEMBER 25, 1983

CERTIORARI GRANTED MARCH 19, 1984

BEST AVAILABLE COPY

QUESTIONS PRESENTED

1. Do 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. Is the underlying basis

for the vehicle exception inherent

mobility, as this Court announced

in Carroll, or did the California

Supreme Court correctly interpret

the United States Constitution

when it repudiated the Carroll

reasoning and announced the underlying

ii.

basis for the vehicle exception as

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?

ee

ns ene as te

- iii -

TOPICAL INDEX

QUESTIONS PRESENTED

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

STATEMENT OF THE CASE

A. Facts Relating to

the Offense

B. Judgment of the

California Supreme Court

SUMMARY OF ARGUMENT

ARGUMENT

I. THE HISTORY OF THE

VEHICLE EXCEPTION

DEMONSTRATES THAT,

SINCE ITS INCEPTION,

MOBILITY HAS SERVED

TO INDEPENDENTLY

JUSTIFY A WARRANTLESS

SEARCH OF A VEHICLE

A. Introduction

/

/

- iv -

TOPICAL INDEX

Pages

B, Mobility Served as

the Sole Justification

for the Vehicle

Exception When it

was First Recognized

by this Court in

Carroll v. United

States 18 - 23

C. Inherent Mobility

has Remained an

Independent

Justification for

the Vehicle Exception

Despite the Articulation

of Additional

Justifications 24 - 29

IN UNITED STATES V. ROSS,

THIS COURT REAFFIRMED

MOBILITY AS AN INDEPENDENT

JUSTIFICATION FOR THE

VEHICLE EXCEPTION 30 - 43

A. The Ross Court's

Examination of

Carroll Reinforced

Inherent Mobility as

an Independently

Sufficient Justification

for the Vehicle

Exception 30 - 32

/

/

he A EET ON Oe

- Vve=

TOPICAL INDEX

Pages

B. The Inherent Mobility

Associated With a

Vehicle Justifies the

Application of the

Vehicle Exception

Even When the Vehicle,

Like a Motor Home,

is

Capable of Supporting

a Residential Use

III. THE CRITICAL BRIGHT

LINE RULE PRESENTED

BY AN EXCEPTION BASED

ON INHERENT MOBILITY

IS A STARK CONTRAST TO

THE CALIFORNIA SUPREME

COURT'S RULE WHICH IS

INCAPABLE OF DEFINITION

OR RATIONAL APPLICATION

BECAUSE IT IS BASED

33 - 43

ON THE SUBJECTIVE ANALYSIS

OF VEHICLE CONFIGURATION

AND POTENTIAL USE

CONCLUSION

44 - 52

53 =- 55

- vi -

LIST OF AUTHORITIES CITED

CASES Pages

Arkansas v. Sanders (1979)

442 U.S. 753 10 et passim

Brinegar v. United States (1949)

338 U.S. 160 21

Cady v. Dombrowski (1973)

413 U.S. 433 24, 26, 47

Cardwell v. Lewis (1974)

417 U.S. 583 24, 26

Carroll v. United States

(1925) 267 U.S. 132 10 et passim

Chambers v. Maroney (1970)

399 U.S. 42 20 et passim

Chimel v. California (1969)

395 U.S. 752 15

Colorado v. Bannister (1980)

449 U.S. 1 15

Coolidge v. New Hampshire (1971)

403 U.S. 443 47

Dyke v. Taylor Implement Co. (1968)

391 U.S. 216 21

2

Ex parte Jackson (1878)

96 U.S. 727 34

Florida v. Meyers (1984)

U.S. [44 CCH S.Ct. Bull.P.

B2343) 25, 49

- vii -

LIST OF AUTHORITIES CITED

CASES Pages

Harris v. United States (1968)

390 U.S. 234 15

Husty v. United States (1931)

282 U.S. 694 21

Katz v. United States (1967)

389 U.S. 347 26, 33, 34

Michigan v. Thomas (1982)

458 U.S. 259 25, 48, 49

Michigan v. Tyler (1978)

436 U.S. 499 | 15

Mincey v. Arizona (1978)

437 U.S. 385 14

New York v. Belton (1981)

453 U.S. 454 47

People v. Uselding (I11.App. 1976)

350 N.E.2d 283 [39 I11.App.3d 677] 39

People v. Carney (1983)

34 Cal.3d 597

[194 Cal.Rptr. 500, 668 P.2d

807]; appen. A to Petn. for

Cert. p. 14 l et passim

Robbins v. California (1981)

453 U.S. 420 24, 47

Scher v. United States (1938)

305 U.S. 251 21

Schmerber v. California (1966)

384 U.S. 757 15

- viii -

LIST CF AUTHORITIES CITED

CASES Pages

Schneckloth v. Bustamonte (1973)

412 U.S. 218 15

Smith v. Maryland (1979)

442 U.S. 735 34

South Dakota v. Opperman (1976)

428 U.S. 364 24, 26, 27, 36

State v. Bouchles (Me. 1983)

457 A.2d 798 16

State v. Downes (Or.App. 1977)

571 P.2d 914 [31 Or.App. 419] 39

State v. Francoeur (Fla.App. 1980)

387 So.2d 1063 39

State v. Lepley (Minn. 1984)

343 N.W.2d 41 . 38

State v. Million (Ariz. 1978)

583 P.2d 897 16, 39

State v. Mower (Me. 1979)

407 A.2d 729 39

State v. Roberts (R.I. 1981) ,

434 A.2d 257 39

Terry v. Ohio (1968) 392 U.S. 1 15

Texas v. White (1975)

423 U.S. 67 25, 48

- ix -

LIST OF AUTHORITIES CITED

CASES Pages

United States v. Bozada (8th Cir. 1973)

473 F.2d 389 16

United States v. Cadena (5th

Cir. 1979) 588 F.2d 100 39

United States v. Chadwick (1977)

433 U.S. 1 24, 26, 28, 41

United States v. Kaiyo Maru No. 53

(9th Cir. 1983) 699 F.2d 989 39

United States v. Lauchli (7th

Cir. 1984) 724 F.2d 1279 39

United States v. Laughman (4th

Cir. 1980) 618 F.2d 1067 39

United States v. Lovenguth (9th Cir.

1975) 514 F.2d 96 16

United States v. Mesa (5th Cir. 1981)

660 F.2d 1070 16, 39

United States v. Miller (10th Cir.

1972) 460 F.2d 582 38

United States v. Ross (1982)

456 U.S. 798 1l et passim

United States v. Wiga (9th

Cir. 1981) 662 F.2d 1325 39

United States v. Williams

(9th Cir. 1980) 630 F.2d 1322 39

LIST OF AUTHORITIES CITED

CASES Pages

United States v. Worthington

(Sth Cir. 1977) 544 F.2d 1275 16

Warden v. Hayden (1967) 387 U.S. 294 15

TEXT

The Automobile Exception: A Contradiction

in Fourth Amendment Principles

(1980) 17 San Diego L.Rev. 933 36

The Warrantless Automobile Search:

Exception Without Justification

(1980) 32 Hastings L.J. 127 36

Warrantless Searches and

Seizures of Automobiles (1974)

87 Harvard L.Rev. 835 23

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

PEOPLE OF THE STATE OF CALIFORNIA,

Petitioner,

Vv.

CHARLES R. CARNEY,

Respondent.

BRIEF ON THE MERITS

OPINIONS BELOW

The opinion of the California

Supreme Court reversing the order of

probation is reported in People v.

Carney (1983) 34 Cal.3d 597 [194

Cal.Rptr. 500; 668 P.2d 807), and

is included as Appendix A to the

petition for writ of certiorari.

JURISDICTION

The judgment of the California

Supreme Court was filed on September 8,

1983. (Appen. A to Petn. for Cert.) A

timely petition for rehearing was denied

on October 6, 1983. (Appen. B to Petn.

for Cert.) The petition for writ of

certiorari was docketed November 25,

1983, within 60 days after the petition

for rehearing was denied. The petition

for writ of certiorari was granted March

19, 1984. This Court's jurisdiction is

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

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution,

Amendments Four and Fourteen.

—_ —- — oe

STATEMENT OF THE CASE

In an information filed by the

District Attorney of San Diego County on

September 14, 1979, respondent, Charles

Richard Carney, was charged with a

single count of possession of marijuana

for sale. (JA 4-5; CT 1.)4/

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

/

~~ ek ah Ti

l. The designation “JA" refers to

the Joint Appendix. The designation “CT"

refers to the Clerk's Transcript on

appeal. The designation “RT" refers to

the Reporter's Transcript on appeal.

-4-

subsequently denied on October 19, 1979.

(JA 6-8; 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.

A. Facts Relating to the -«

ense

While investigating 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.

- § «

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. Agent Williams watched as

respondent and the boy got into a Dodge

Mini Motor Home which was parked in a

lot at 4th and G Streets. (JA 9-12; RT

4-8, 10.)

Agent Williams noted the

license number of the motor home and

recalled he had, on numerous occasions,

received information that this 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

/

/

/

-6-

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, maybe 17. (JA 12; 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. JA 12-15;

(RT 15-22.)

Williams took the boy back to

the motor home and had the boy knock on

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 bags 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. (JA

15-22; RT 23-27, 29, 34-35, 40-49,

72-73.)

B. Judgment of the California

Supreme Court

On September 8, 1983, the

California Supreme Court reversed the

order granting probation, holding that a

motor home is fully protected by the

United States Constitution's Fourth

Amendment guarantee against unreasonable

search and seizure and is not subject to

the “automobile exception" to the warrant

requirement. (People v. Carney, supra,

34 Cal.3d 597, 610 [194 Cal.Rptr. 500,

668 P.2d 807]; appen. A to Petn. for

Cert., 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

- 9 -

"automobile exception." (People v.

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

{194 Cal.Rptr. 500, 668 P.2d 807];

appen. A to Petn. for Cert., pp. 11-17.)

—

SUMMARY OF ARGUMENT

The history of the vehicle

exception demonstrates that, since its

inception, mobility has served to in-

dependently justify a warrantless search

of a vehicle. When the exception was

first recognized by this Court in

Carroll v. United States (1925) 267 U.S.

132, mobility was the sole justification

for the exception. It is the inherent

ability of a vehicle to move which

distinguishes the search of a vehicle

from the search of a building.

Inherent mobility has remained

an independent justification for the

vehicle exception despite recognition

of additional justifications based upon

diminished expectations of privacy,

pervasive regulatory schemes and

administrative burdens. These additional

justifications do not detract from the

e ii «

inherent mobility of the vehicle nor do

they detract from mobility as an inde-

pendent justification for the exception.

In United States v. Ross (1982)

456 U.S. 798, the Court's examination of

the Carroll decision reinforced inherent

mobility as an independently sufficient

justification for the vehicle exception.

The inherent mobility associated with a

vehicle justifies the application of the

vehicle exception even when the object of

the search is a “motor home" capable of

supporting a residential use.

This Court has recognized the

critical necessity for providing law

enforcement officers with “bright line"

guidance in search and seizure

situations. "Bright lines” are necessary

so officers can apply the underlying

constitutional abstractions confidently

and consistently in the practical

e 12 «

pursuit of their daily business.

Mobility presents a bright line approach

to vehicle searches. This bright line

guidance is in contrast to the California

Supreme Court's rule which is incapable

of definition or rational application

because it is based on the subjective

analysis of vehicle configuration and

potential current use. Such a rule is

unworkable when one considers law

enforcement will come in contact daily

with every imaginable vehicle in

countless situations.

/

- (2. <> Se “ee ee ae

THE HISTORY OF THE

VEHICLE EXCEPTION

DEMONSTRATES THAT,

SINCE ITS INCEPTION,

MOBILITY HAS SERVED

TO INDEPENDENTLY

JUSTIFY A WARRANTLESS

SEARCH OF A VEHICLE

A. Introduction

In this case the court must

examine the analytical underpinnings of

the vehicle exception to the Fourth

Amendment's general search warrant

requirement. This examination is

required because of the California

Supreme Court's rejection of mobility

(and therefore inherent exigency) as the

basis, supplanting it with a subjective

and elusive “reduced expectation of

privacy” basis. As shall be demonstrated,

the practical difference is both enormous

and critical.

e 14 «

The Fourth Amendment's

guarantee against unreasonable searches

and seizures has been interpreted to

require that searches of private property

normally be performed pursuant to a

search warrant. (Arkansas v. Sanders.

(1979) 442 U.S. 753, 758, disapproved in

part on other grounds in United States v.

Ross, supra, 456 U.S. at p. 824.) Thus,

warrantless searches are per se

unreasonable under the Fourth Amendment,

subject only to a few specifically

established and well-delineated

exceptions. (Mincey v. Arizona (1978)

437 U.S. 385, 390.)

This case concerns one of these

exceptions, recognized at least since

Carroll v. United States, supra, 267 U.S.

at p. 149, which arises when an automobile

or other vehicle is stopped and the

police have probable cause to believe it

e 18 «

contains evidence of a crime. (Colorado

v. Bannister (1980) 449 U.S. l, 3.)

Though petitioner will quarrel with the

title, this exception has come to be

known as the “automobile exception."

(See, Arkansas v. Sanders, supra, 442

U.S. at p. 757.)4/

3. Other exceptions to the warrant

requirement include: search incident to

arrest, Chimel v. California (1969) 395

U.S. 752; consent, Schneckloth v.

Bustamonte (1973) 412 U.S. 218; plain

view, Harris v. United States (1968) 390

U.S. 234; hot pursuit Warden v. Hayden

(1967) 387 U.S. 294; stop and erik,

Terry v. Ohio (1968) 392 U.S. 1;

emergency, Michigan v. ler (1978) 436

U.S. 499; and prevention of loss or

destruction of evidence, Schmerber v.

California (1966) 384 U.S. 757.

4. The term “automobile exception"

is a misnomer. Use of the term

"automobile exception" has served to

create confusion in the courts and in the

minds of officers in determining when a

warrant is required in search cases. The

"automobile exception" applies to

vehicles and vessels of all types and

configurations and thus, is more properly

referred to as a "vehicle exception."

° Moe

The exceptions to the warrant

requirement have been established where

(Footnote 4 cont.)

(See State v. Bouchles (Me. 1983) 457

A.2d 798, 799-800, search of a van;

United States v. Mesa (5th Cir. 1981) 660

F.2d 1070, 1073, 1078, search of sailing

vessel, a van, and two campers; State v.

Million (Ariz. 1978) 583 P.2d 897,

- {120 Ariz. 10], search of a motor

home; United States v. Worthington (5th

Cir. 1977) 544 F.2d 1275, , search of

an airplane; United States v. Lovenguth

(9th Cir. 1975) 514 F.2d 96, 99, searc

of a comoer; and, United States v. Bozada

(8th Cir. 1973) 473 F.2d 389, 391, search

of a tractor-trailer.

The California Supreme Court's

mistaken interpretation of the Carroll

rule as creating an “automobile exception”

instead of a vehicle exception appears to

be the basis for its holding in the

Carney case. The majority goes to great

rs & in an attempt to distinguish

between an automobile, which would be

covered by an “automobile exception,” and

a motor home, which the court calls a

"hybrid" between an automobile and a

house which the California court argues,

would not come under an “automobile

caneatien.* 0 (Perr cy Carne supra,

34 Cal.3d at p. =610; [94 Cal. per

500, 668 P.2d 807] appen. A _ to Pet. for

Cert. pp. 9-31.) Had the California

Supreme Court correctly characterized the

Carroll rule as creating a vehicle

exception, it would have been forced to

e 19

it was concluded the public interest

required some flexibility in the applica-

tion of the general rule that a valid

warrant is a prerequisite for a search.

(Arkansas v. Sanders, supra, 442 U.S. at

p. 759.) These exceptions have been

carefully drawn and generally are charac-

terized by clear and coherent guidelines,

or “bright lines,” which are critical to

the consistent and efficient application

of these constitutional abstractions by

the nation's constables.

The vehicle exception was

established due to the unique ability

of a vehicle to move from one place to

another. Thus, the ability to move

creates an exigent circumstance which

TFootnote 4 cont.)

affirm the Carney case. The motor home

involved in this case is a vehicle, as

capable of movement as any automobile or

other vehicle.

© 18 «

serves to excuse the warrant requirement

where there is probable cause to believe

a vehicle contains seizable materials.

(Carroll v. United States, supra, 267

U.S. at pp. 149-156.)

B.

Any examination of the vehicle

exception must necessarily begin with an

examination of Carroll v. United States,

supra, 267 U.S. 132. The Carroll Court

engaged in an extensive analysis of the

history of warrantless searches for

contraband concealed in vessels and

vehicles. (Id., at pp. 150-153.) The

Court concluded:

"We have made a somewhat

extended reference to these

statutes to show that the

guaranty of freedom from

unreasonable searches and

e 39 «

seizures by the Fourth

Amendment has been construed,

practically since the beginning

of — gaye as

45°, da —_

Cy

: jwelling house or othe

tructure in respect of which a

sroper official warrant readi.

be obtained, anc arct

of a ship, motor boat gon Oo

automobile, for contrabanc

goods, where it is not prac-

ticable to sect w

pecause the vedic: ar

uickly moved out of the lo-

ity or jurisdiction in which

the warrant must be sought.

"Having thus established

that contraband goods concealed

and illegally transported in an

au e or 0 veh e may

searc or wit ta

warrant, we come now to con-

sider under what circumstances

such search may be made. .. .*

supee, 267. oates ae us?

sis added.)

The Carroll Court reasoned

this history justified a clearly defined

vehicle exception to the Fourth

Amendment's warrant requirement.

"On reason and authority

the true rule is that if the

» 2 «

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

which by law is subject to

seizure and destruction, the

search and seizure are valid.

The Fourth Amendment is to be

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 as the interests and

rights of individual citizens."

(Carroll v. United States,

supra, 267 U.S. at p. 149,

emphasis added.)

Carroll did not distinguish between

vehicles because of their configuration

Or present or potential uses. Rather,

the exigency due to the vehicle's ability

to move justified the exception. (See,

United States v. Ross (1982) 456 U.S.

798, 806-807.)

Between 1925 and 1970, when the

Court came down with the watershed

decision of Chambers v. Maroney (1970)

» 21 «

399 U.S. 42, the Court had few oppor-

tunities to apply the vehicle

exception. >/

A unanimous Court applied

Carroll to hold that passage of the car

from the street to the garage did not

affect the right to search the vehicle.

(Scher v. United States (1938) 305 U.S.

251, 254-255.) Though it was not moving,

it remained mobile.

The Court approved the search

of a vehicle transported to the police

station in Chambers v. Maroney, supra,

5. In two of those decisions the

Court simply reiterated the fact probable

Cause was a necessary predicate to justify

the warrantless search of a vehicle.

(Husty v. ae states States (1931) 282 U.S.

6 00; Dyke v. Taylo e Taylor Implement Co.

(1968) 391 U. "318 221- 3. ) In Dyke,

the Court refused to apply the exception

to a mobile vehicle because the officers

lacked probable cause. Id., at pp. 221l-

222.) In a third case, this Court

rejected the argument a vehicle consti-

tuted a place where one had a legitimate

Privacy right. (Brinegar v. United

States (1949) 338 U.S. 160, 176-177.)

e 2 «

399 U.S. 42, by concluding there was

probable cause to search at the time the

Car was seized and the probable cause and

inherent mobility of the vehicle still

obtained at the police station. (Chambers

v. Maroney, supra, 399 U.S. at pp.

50-52.) The inherent mobility of the

vehicle caused the Court to characterize

the opportunity to search a vehicle as

"fleeting." (Ibid.) Furthermore,

mobility created a circumstance where, in

most cases, the probable cause to search

a particular vehicle for a particular

article will be unforeseeable. (Id., at

pp. 50-51.) Thus, as Chambers pointed

out, mobility was the source of numerous

problems associated with the search of a

vehicle.

An argument was presented to

the Court in Chambers that police should

be allowed only to immobilize a vehicle

e 23 «

while they sought a warrant. In

response, the Court stated:

“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 between on the

one hand seizing and holding a

car before presenting the prob-

able cause issue to a

magistrate and on the other

hand carrying out an immediate

search without a warrant.

Given probable cause to search,

either course is reasonable

under the Fourth n+ ay

th v. Marone ra,

399 U.S. at pp. 5.78

6. For an analysis of the com-

peting interests involved in seizing a

vehicle versus searching the vehicle,

see, Note, Warrantless Searches and

Seizures of Aut es

Harvard L. Rev. 835, 840-842.

In the years following the

Court's decision in Chambers, the vehicle

exception was frequently discussed.

Consistently appearing in cases involving

the vehicle exception is the concept

there is a constitutional difference, for

purposes of warrantless searches, between

Structures and vehicles. The reason for

the difference is the inherent mobility

of the vehicles._/

7. (See, United Se LE

supra, 456 U.S. at - 07; Robbins v.

a (1981) 453 U.S. 420,

urality), overruled on other grounds

v supra, at Pp.

8245 he fanaa: Sab ae 442 U.S.

at P part in

? .

977) 433 U.S.

man (1976)

: S,

“hadw

(1974) 417 U.S. 67>

(plurality); Cady v. Seoteeeas (1973)

e 93 «

The conclusion that ability to

move is the critical inquiry and not

actual movement is evident from the fact

the Court has continued to apply the

vehicle exception to justify warrantless

searches of movable vehicles. (Florida

v. Meyers (1984) _—iU.S._ sé 44 CCH

S.Ct. Bull.P. B2343, B2344-B2345);

Michigan v. Thomas (1982) 458 U.S. 259,

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

68; Chambers v. Maroney, supra, 399 U.S.

at p. 52.) |

A heightened awareness of pri-

vacy rights caused this Court to examine

and reject those rights as justifying an

end to the vehicle exception. Instead

diminished expectations of privacy pro-

vided a second justification for the

TFootnote 7 cont.)

413 U.S. 433, 439-440; Vv.

; ; 459-480

Hampshire (1971) 403 U.S.

plura y).)

a °

exception. (See Katz v. United States

(1967) 389 U.S. 347; Arkansas v. Sanders,

supra, 442 U.S. at p. 761; United States

v. Chadwick, supra, 433 U.S. at pp.

12-13; South Dakota v. Opperman, supra,

428 U.S. at pp. 367-369; Cardwell v.

Lewis, supra, 417 U.S. at Pp. 590

(plurality) .2/ Privacy analysis

requires the identification of various

factors associated with vehicular travel

which serve to reduce privacy in compari-

son with a structure or residence.

Because individual factors are important

in such an analysis, the case law has

developed a grocery list of such factors.

For example, the regulatory scheme

8. In and , the

Court's discussion of privacy expec-

tations in vehicle searches was used as a

comparison for -he priv expectations

one has in a closed container. Both

Sanders and were container

cases, not vehicle cases.

en ee eee

- 27 =-

governing vehicle travel lessens one's

expectation of privacy.

". . « Automobiles, unlike

homes, are subjected to per-

vasive and continuing govern-

mental regulation and

controls, including periodic

inspection and licensing

requirements. As an everyday

occurrence, police stop and

examine vehicles when license

plates or inspection stickers

have expired, or if other

violations, such as exhaust

fumes or excessive noise, are

noted, or if headlights or other

safety equipment are not in

proper working order." ‘Sout

"€e

» at

Oo at p. bree,

ki, supra, 413 U.

Pp. °

The list of factors published is by no

means exhaustive. The articulation of

additional factors is limited only by the

imaginative capacity of this

country's finest legal minds.

Another justification for allowing a

warrantless search of a vehicle is

premised on the difficulty law

@ 28 «

enforcement might have in providing

a seized vehicle with secure

storage. A vehicle's size, value

and inherent mobility make secure

storage difficult and make such

objects attractive targets for theft

and vandalism. A constitutional

requirement to seize and hold a

vehicle while waiting for a search

warrant would place a severe, even

impossible, burden on law

enforcement. (Arkansas v. Sanders,

supra, 442 U.S. at pp. 765-766, fn.

14; United States v. Chadwick,

supra, 433 U.S. at p. 13, fn. 7.)

Furthermore, given these risks, it

can be seen that impound and storage

might well be a greater instrusion

than immediate search. (See,

Chambers v. Maroney, supra, 399 U.S.

- 29 -

At any rate, it is

apparent these additional justifica-

tions do not detract from the inde-

pendent sufficiency of mobility as a

basis for the vehicle exception.

- 30 -

PE RE ad

THI

MOBILITY AS AN INDEPENDENT

JUSTIFICATION FOR THE

VEHICLE EXCEPTION

ertiefest strc Pestle

Acknowledging an indisputable

need for clarification in the law of

vehicle searches, the Court traced the

origin of the vehicle exception and care-

fully examined the basis for the excep-

tion in ted States v. Ross, supra, 456

U.S. 798. In particular, the Court ex-

amined the Carroll decision and its

historical backgound. (Id., at pp.

. 804-809.) The Ross Court found, as the

| Carroll Court found, it is consistent

with the Fourth Amendment's concerns for

preserving the public interests as well

as the rights of the individual to allow

» $1 «

the warrantless search of a motor

vehicle, when the search is undertaken

with probable cause to believe the

vehicle contains that which is subject

to seizure. (Id., at p. 805; Carroll v.

United States, supra, 267 U.S. at p.

149.)

Ross makes it clear the

vehicle exception announced in Carroll is

based upon the inherent and obvious dif-

ference between a vehicle and a structure

-- the ability to move. (United States v.

Ross, supra, 456 U.S. at pp. 805-806.)

The Court concluded:

"Thus, since its earliest

days Congress had recognized

the impracticability of

securing a warrant in cases

involving the transportation of

contraband goods. It is this

impracticability, viewed in

historical perspective, that

provided the basis for the

Carroll decision. Given the

nature of an automobile in

transit, the Court recognized

oe 39 «

that an immediate intrusion is

necessary if police officers

are to secure the illicit

substance. In this class of

cases, the Court held that a

warrantless search of an auto-

mobile is not unreasonable."

(United States v. Ross, supra,

456 U.S. at pp. 806-807; foot-

notes ommitted.)

The exception established by Carroll

applies if there is probable cause to

search a movable vehicle. (Id., at p.

809.) Realizing the possibility a par-

ticular application of the rule may

appear to be unfair, the Court stated:

". . . The rules as applied in

particular cases may appear

unsatisfactory. They reflect,

however, a reasoned application

of the more general rule that

if an individual gives the

police probable cause to

believe a vehicle is .

transporting contraband, he

loses the right to proceed on

his way without official inter-

ference." (Id., at p. 807, fn. 9.)

/

/

» 33 «

B. The Inherent Mobility

Associated With a Vehicle

Justifies the Application

of the Vehicle Exception

Even When the Vehicle, Like

a Motor Home, is Capable

of Supporting a Residential

Use.

The fact an individual may

display some greater expectation of pri-

vacy in a particular vehicle or class of

vehicles does not overcome mobility as an

independent justification for applying

the exception. Contrary to the

California Supreme Court's view, privacy

expectations have not supplanted mobility

as the touchstone of vehicle search

analysis. (People v. Carney, supra, 34

Cal.3d at p. 605 [194 Cal.Rptr. 500, 668

P.2d 807]; appen. A to Petn. for Cert. p.

14,)2/

9. Following the Court's opinion in

Katz v. United States (1967) 389 U.S.

, there was renewed awareness that the

Fourth Amendment protects privacy

» 24 <

The conclusion enhanced privacy

expectations do not overcome inherent

mobility is evident from both Ross and

Carroll. In reaffirming mobility as the

basis for the vehicle exception, the

Court in Ross observed:

"In light of this

established history, individ-

uals always had been on notice

that movable vessels may be

stopped and searched on facts

giving rise to probable cause

that the vehicle contains

contraband, without the protec-

tion afforded by a magistrate's

(Footnote 9 cont.)

interests. (See, Ex parte Jackson (1878)

96 U.S. 727, 733, where the Court found

an expectation of privacy in an

individual's posted letters and

packages.) What Katz added to Fourth

Amendment analysis is a two step model to

test privacy expectations. First, has

the individual exhibited an actual or

subjective expectation of privacy?

Second, is society prepared to recognize

as “reasonable” this subjective

expectation? (Katz v. United States,

supra, at p. 347 (Harlan, J. concurring);

Smith v. Maryland (1979) 442 U.S. 735,

740.) As we shall demonstrate, this

= 38 «

prior evaluation of those facts."

(United States v. Ross, Supra, 456

U.S. at p. 806, fn. 8.)

Because they are mobile, society is not

prepared to recognize as reasonable any

subjective expectations of privacy in the

contents of a vehicle. Moreover, Ross

indicates individuals have always been on

notice that such an expectation is

unreasonable.

The configuration and present

Or potential use of the vehicle or

vessel may evidence an actual expec-

tation of privacy. 22/ However,

(Footnote 9 cont.)

expectation is not reasonable on the part

of a person who has given officers prob-

able cause to believe his vehicle con-

tains matter subject to seizure.

(United States v. Ross, supra, 456 U.S.

at p. 806, fn. 8.)

10. Individuals have exhibited

a subjective expectation of privacy in

the contents of vehicles over the years.

Cars, for example are equipped with locks

and trunks to insure privacy.

» 26 o

configuration and present or potential

use do not overcome mobility to place a

vehicle outside the vehicle exception.

In establishing the vehicle exception,

Carroll distinguished automobiles, ships,

boats and wagons from structures.

(Carroll v. United States, supra, 267

U.S. at p. 153.) Sailors live on ships.

The pioneers lived out of their wagons.

(Footnote 10 cont.)

Individuals place their most cherished

and intimate possessions in a car

expecting them to be secret. Writers's

Carry manuscripts, professors carry

tests, judges carry draft opinions,

Criminals carry weapons, fruits and

evidence. Many members of society

engaged in their first intimate contact

in the confines of a vehicle parked ina

secluded place. Other members of society

actually live in their automobiles.

(See, South Dakota v. Opperman, supra,

428 U.S. 364, 388, fn. 6, (Marshall, J.

dissenting); Wilson, The Warrantless

Automobile Search: Exception Without

Justification (1980) 32 Hastings L.J.

127, 158; Comment, The Automobile

Exception: A Contradiction in Fourth

Amendment Principles (1980) 17 San Diego

L.Rev. 933, 951-952.)

ee

« 39 «

These vehicles and vessels, which Carroll

distinguished from structures, histori-

cally served as personal residences with

the attendant privacy expectations of a

residence .2+/ Even though vehicles may

serve the identical residential function

as a house, Carroll recognized they are

subject to different treatment than

structures when there is probable cause

to search. The reason for the difference

ll. The historical function for

these vessels and vehicles contrasts

starkly with motor homes like the one

that was searched in the instant case.

Motor homes and like vehicles are com-

monly referred to as "recreational

vehicles." This term suggests a very

different purpose for the vehicle than

residence. An individual who goes to the

ballpark on a Sunday afternoon would be

led to believe a motor home's primary

function is to serve as a travelling

party.

In this case the record is

devoid of any reference to Mr. Carney's

use of this vehicle as his personal

residence. Thus, his claim is dependant

solely on potential use of the vehicle as

a residence and speculation.

= @ «

is due to the inherent ability of the

vehicles and vessels to move. (Carroll

v. United States, supra, 267 U.S. at p.

153.)

It is therefore apparent the

Court in Carroll was not concerned with

the configuration of the vehicle or its

potential or present use (other than its

use to conceal seizable material).

Subsequent appellate decisions have

applied the reasoning of Carroll to

vehicles and vessels which could be used

as a residence, and in some cases which

served as a residence .22/ The doctrine

therefore applies to Mr. Carney's motor

home for the same reason it was applied

to Mr. Ross’ automobile: both vehicles

were mobile.

12. For application of the vehicle

exception to motor homes, see, United

States v. Miller (10th Cir. 197

F.2d 582; State v. Lepley (Minn. 1984)

- 39 -

The policies which supported

the original exception still apply to

support the vehicle exception's applica-

tion to Mr. Carney's motor home. Society

is entitled to be protected from the

danger associated with criminal activity

conducted from and in motor vehicles.

The danger associated with such criminal

activity has magnified during the 60

(Footnote 12 cont.)

343 N.W.2d 41; State v. Mower (Me. 1979)

407 A.2d 729; State v. Million, supra,

583 P.2d 897 [120 Ariz. 10]; State v.

Francoeur (Fla.App. 1980) 387 So.2d 1063;

State v. Downes (Or.App. 1977) 571 P.2d

914 [31 Or.App. 419]; People v. Uselding

(I11.App. 1976) 350 NEST oD 83 [39

I11.App.3d 677]; contra, United States v.

Williams (9th Cir. 1980)

F.2d 1322; United States v. Wiga (9th

Cir. 1981) 662 F.2d 1325; for applica-

tion of the vehicle exception to ships

and boats, see, United States v. Lauchli

(7th Cir. 1984) 724 F.2d 1279; unite

States v. Kaiyo Maru No. 53 (9th Cir.

1983) 699 Fa 989; United States v. Mesa

(Sth Cir. 1981) 660 F.2d 1070; United

States v. Laughman (4th Cir. 1980) 618

F.20 1067; United States v. Cadena (5th

Cir. 1979) 588 F.2d 100, 102; State v.

Roberts (R.I. 1981) 434 A.2d 257.

» @ «

years since Carroll. The sheer volume of

traffic presents a significant hindrance

to detection of criminal activity.

Vehicles such as motor homes have room to

transport vast quantities of drugs,

weapons and contraband. Motor homes may

even serve as mobile drug laboratories.

In addition, the mobility of today's

vehicles is far greater than that of the

Oldsmobile Roadster in Carroll. Today's

vehicles are faster, have better roads to

travel, may have off-road capability, and

may be fully self-contained. Thus, the

exigency which attends inherent mobility

exists with greater force in a motor

home.

An unreasonable danger would be

presented to law enforcement officers

if they were required to seize a vehicle

and hold it while awaiting a warrant.

With ever increasing frequency, police

» 41 «

are being shot and killed in the course

of their duties. To seize and hold a

vehicle presents an obvious danger to the

officer or officers required to perform

this furction. It also prevents the

officers from responding to other

Situations which require their presence,

thereby creating a burden on the public.

Moreover, to provide secure storage for

the vehicles could be impossible, thereby

exposing the public to significant finan-

cial liability as well. (See, Arkansas

766, fn. 143; United States v. Chadwick,

supra, 433 U.S. at p. 13, fn. 7.)22/

While the need for the vehicle

exception continued to build over time,

the privacy interests involved have

13. As the Court noted in Chambers

v. Maroney, supra, 399 U.S. 42, there is

no constitutional difference between

seizing a vehicle and holding it before

e 642 «

remained constant. Although an indi-

vidual in a motor home may have a

"heightened" expectation of privacy in

the contents of his vehicle, his expec-

tation is no higher than the wagoneer's

expectation of privacy or the sailor's

expectation of privacy in the contents of

their vehicles or vessels. The original

analysis turned on the inherent mobility

of vehicles, and mobility remains to

justify application of the vehicle excep-

tion to motor homes. Though an individual

may believe he is entitled to privacy in

the contents of his motor home, he

(Footnote 13 cont.)

presenting the probable cause issue to a

magistrate and carrying out an immediate

search without a warrant. (Id., at pp.

51-52.) In the case of a motor home, the

analysis applies with equal force. The

intrusion of seizing and holding a motor

home while a warrant is obtained cannot

easily be distinguished from the intru-

sion of allowing a warrantless search

based on probable cause.

- 43 -

sacrifices that right when he provides

law enforcement officers with probable

cause to believe his operable motor home

contains seizable material. (United

States v. Ross, supra, 456 U.S. at p.

806, fn. 8.)

zx ek ekeet

- 44 -

II!

THE CRITICAL BRIGHT LINE

RULE PRESENTED BY AN EXCEPTION

BASED ON INHERENT MOBILITY IS A

STARK CONTRAST TO THE CALIFORNIA

SUPREME COURT'S RULE WHICH IS

INCAPABLE OF DEFINITION OR

RATIONAL APPLICATION BECAUSE

IT IS BASED ON THE SUBJECTIVE

ANALYSIS OF VEHICLE CONFIGURA-

TION AND POTENTIAL USE

Following Ross, analysis of a

vehicle search involves two questions:

first, was there probable cause to search

the vehicle; second, was the vehicle

capable of movement? It is a test law

enforcement officers are capable of

applying in a consistent fashion. The

analysis provides society and the

individual with adequate safeguards.

Under such a test, the officers look at

objective factors which impact mobility

and probable cause, not nebulous factors

such as configuration, present use, or

likelihood it will be moved.

oe 48 «

The mobility analysis presented

fulfills the need for a “bright line"

approach to search cases. The action

taken by an officer upon a moment's

reflection will be subjected to micro-

scopic analysis by lawyers and judges over

a period of years. In this case, the

decision to search has undergone five

years of review, now including review

by the highest tribunal in the land.

", . ». the protection of the

Fourth and Fourteenth

Amendments ‘can only be

realized if the police are

acting under a set of rules

which, in most instances, makes

it possible to reach a correct

determination beforehand as to

whether an invasion of privacy

is justified in the interest of

law enforcement.’ LaFave,

'Case-By-Case Adjudication’

versus ‘Standardized

Procedures': The Robinson

Dilemma, 1974 S.Ct.Rev. 127,

142. This is because

‘Fourth Amendment

doctrine, given force

and effect by the

exclusionary rule, is

o 4 «

primarily intended to

regulate the police

in their day-to-day

activities and thus

ought to be expressed

in terms that are

readily applicable by

the police in the

context of the law

enforcement activi-

ties in which they

are necessarily

engaged. A highly

sophisticated set of

rules, qualified by

all sorts of ifs,

ands, and buts and

requiring the drawing

of subtle nuances and

hairline distinctions,

may be the sort of

heady stuff upon

which the facile

minds of lawyers and

judges eagerly feed,

but they may be

"literally impossible

of application by the

officer in the field."'

Id., at 141.

"In short, ‘[{a] single

familiar standard is essential

to guide police officers, who

have only limited time and

expertise to reflect on and

balance the social and indi-

vidual interest involved in the

specific circumstances they

confront.'"

» 43 «

Dunaway v. New York, 442 U.S.

200, 213-214." (New York v.

Belton (1981) 453 U.S. 454,

458.)

The Court's decision in Ross was a

response toc the indisputable necessity

for a bright line rule in vehicle search

cases. (United States v. Ross, supra,

456 U.S. at pp. 803-804, )24/ That Ross

served to clarify the law in this area

was acknowledged by the concurring

14. The necessity for a bright line

approach to vehicle search cases has been

repeatedly recognized by this Court.

Justice Harlan, in his concurring opinion

in Coolidge v. New Hampshire, supra, 403

U.S. at p. 490, referred to the uncer-

tainty then existing as “intolerable.”

Justice Rehnquist characterized the law

relating to searches of vehicles as

"something less than a seamless web."

(Cady v. Dombrowski, supra, 413 U.S. at p.

440. More recently, Justice Powell

stated that the law of search and seizure

with respect to automobiles is intol-

erably confusing, to the point where the

"Court apparently cannot even agree on

what it has previously held, let alone on

how these cases should be decided.”

(Robbins v. California, supra, 453 U.S.

at p. 430 (Powell, J. concurring).)

- 48 -

justices. (United States v. Ross, supra,

456 U.S. at p. 825 (Blackmun, J.

concurring); id., at p. 826 (Powell, J.

concurring) .)

The ease of application of a

rule which centers on probable cause and

inherent mobility is evident from the two

most recent vehicle search cases ruled on

by this Court. In Michigan v. Thomas,

supra, 458 U.S. 259, the Court stated:

"We reverse. In Chambers’

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

we held that when police offi-

cers have probable cause to

believe there is contraband

inside an automobile that has

been stopped on the road, the

officers may conduct a

warrantless search of the

vehicle, even after it has been

impounded and is in police

custody. We firmly reiterated

this holding in Texas v. White,

423 U.S. 67 (1975). See also

United States v. Ross, 456 U.S.

798, 807, n. 9 (1982). It is

thus clear that the justifica-

tion to conduct such a

warrantless search does not

vanish once the car has been

immobilized; nor does it depend

» 46 «

upon a reviewing court's

assessment of the likelihood in

each particular case that the

Car would have been driven

away, or that its contents

would have been tampered with,

during the period required for

the police to obtain a warrant.

See ibid." (Michigan v. Thomas,

supra, 458 u.S. at p. 261.

The Court's most recent vehicle search

case followed Thomas and reversed the

state court's suppression ruling.

(Florida v. Meyers, supra, U.S. Bae

(44 CCH S.CT. Bull.P. B2343, B2344-

B2345].) Both cases relied on the

inherent mobility attached to the

vehicles. The test applies with equal

vigor to a motor home.

The California Supreme Court

expressly rejected the bright line

mobility test and supplanted it with a

test based on an individual's expectation

of privacy in a vehicle due to the

- 50 -

configuration and potential residential

use Of a vehicle. (People v. Carney,

supra, 34 Cal.3d at pp. 605-608 [194

Cal.Rptr. 500, 668 P.2d 807]; appen. A

to Petn. for Cert., pp. 14-26.) The

California Court concluded that the.

expectations of privacy associated with a

"motor home" precluded application of the

"automobile exception" to justify the

warrantless search of this class of

vehicle. (Id., at p. 610; appen. A to

Petn. for Cert. p. 30.) In so holding,

the California Supreme Court not only

ignored this Court's decisions in Carroll

and Ross, it also created a test inca-

pable of consistent and rational

application.

The California Court justifies

its holding by stating that motor homes

are “hybrids” with the mobility attri-

butes of automobiles and most of the

e S$} «

privacy characteristics of a house,

(People v. Carney, supra, 34 Cal.3d at p.

606; appen. A to Petn. for Cert. p. 17.)

The characterization of a motor home as a

hybrid is of no assistance to law

enforcement. This particular hybrid has

the characteristics of a chameleon and

may cover the entire range of vehicle

configurations. In this case,

Mr. Carney's motor home was referred to

in the record as a “mini motor home," a

"camper," a “motor home,” and a “van."

(JA 12-14, 20-22; RT 8-14.)

The term “motor home" defies

objective definition. A subcompact car

where the driver keeps a sleeping bag may

be "home" just as a Winnebago with

interior plumbing and sleeping for six

may simply provide transportation. It is

wholly impractical to impose on police

the burden of assigning a constitutionally

e $2 «

significant value to a person's subjec-

tive expectation of privacy according to

the shape, make, and present use of a

vehicle. The California Supreme Court

does not even provide guidance as to what

configurations fit this new class of

vehicles or what characteristics of those

vehicles set them apart from ordinary

vehicles. (See, People v. Carney, supra,

34 Cal.3d at p. 614 (Richardson, J.

dissenting); appen. A. to Petn. for Cert.

pp. 46-48.)

Such a rule should not be given

constitutional force. By erasing the

bright line of mobility and replacing it

with fuzzy concepts of configuration and

potential use, the California Supreme

Court announces 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 into a workable rule.

» §3 «

CONCLUS ION

In cases involving the warrant-

less search of a vehicle, this Court, in

Carroll, presented a rule based upon

probable cause and inherent mobility. In

Ross, the Carroll rule was given new

vitality.

On a daily basis law enforce-

ment will come in contact with every

imaginable vehicle in infinite

Situations. The officers will be

expected to make reasonable decisions on

search and seizure issues based upon

objective factors. To ensure these offi-

cers are able to perform their functions

to protect society and at the same time

protect individual rights, bright line

rules of general application must be

utilized. A vehicle search rule based

upon mobility fulfills that requirement.

/

o $4 «

In the face of this need for a

consistent application of the vehicle

exception, the California Supreme Court

has substituted a rule incapable of

Gefinition, and inconsistent in

application. The California Supreme

Court's rule places constitutional

significance on the configuration and

potential use of a class of vehicle they

decline to define.

The policy factors which served

to support the original exception apply

with greater force today to support

application of the vehicle exception to

all vehicles, including Mr. Carney's

motor home.

Accordingly, petitioner

respectfully requests this Court reverse

the decision of the California Supreme

/

/

e $3 «

Court and reaffirm the vehicle exception

established in Carroll and Ross.

Respectfully submitted,

JOHN K. VAN DE KAMP, Attorney

General of the State of

California

STEVE WHITE, Chief Assistant

Attorney General

MICHAEL D. WELLINGTON

Deputy Attorney General

Fie: a

LOUIS R. HANOIAN

Deputy Attorney General

Attorneys for Petitioner

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