Amicus Curiae Brief — California v. Carney

Office Suprerms Court, U.S

F I LED

| «

No. 83-859 ” _

— ALEAAN CER L. STEVAS,

SUPREME COURT OF THE UNITED STATES_W-S"«

—

October Term, 1983

PEOPLE OF THE STATE OF CALIFORNIA,

Petitioner,

vs.

CHARLES R. CARNEY,

Respondent,

me ee eee ee ee ee

On Writ of Certiorari to the

Supreme Court of California

BRIEF OF THE CALIFORNIA STATE

PUBLIC DEFENDER AS AMICUS

CURIAE IN SUPPORT OF RESPONDENT

FRANK O. BELL, JR.

State Public Defender

GEORGE L. SCHRAER

Deputy State Public Defender

Counsel of Record for Amicus Curiae

1390 Market Street, Suite 425

San Francisco, CA 94102

Telephone: (415) 557-1468

CYNTHIA A. THOMAS

Deputy State Public Defender

Attorneys for Amicus Curiae

TABLE OF CONTENTS

On Writ of Certiorari to the

Supreme Court of California

BRIEF OF THE CALIFORNIA STATE

PUBLIC DEFENDER AS AMICUS

CURIAE IN SUPPORT OF RESPONDENT

INTEREST OF AMICUS

CURIAE AND CONSENT

SUMMARY OF ARGUMENT

ARGUMENT

THE AUTOMOBILE EXCEPTION TO

THE WARRANT REQUIREMENT OF

THE FOURTH AMENDMENT DOES

NOT INVARIABLY APPLY TO

A MOTOR HOME

A. Introduction

B. Principles of Fourth

Amendment Jurisprudence

C. Fourth Amendment Principles

Relating to Searches

of homes

D. Fourth Amendment Principles

Relating to Searches

of Automobiles

E. Application of Fourth

Amendment Principles

to Motor Homes

CONCLUSION

Page

ll

14

19

37,38

TABLE OF AUTHORITIES

Cases Page

Bowyer vs Superior Court,

37 Cal.App.3d 151 4

Cady v. Dombroski, 413

U.S. 433, 439 (1973) 14,16,17,18

California v. Ramos, U.S.

» 77 L.Ed.2d 1171 (1983) 3

Camara v. Municipal Court, 387

U.S. 523 9

Cardwell v. Lewis, supra, 417

U.S. at 590. 9,21,25,28

Carroll v. United States 267

U.S. 132 (1925) 15

Chambers v. Maroney, 399

Coolidge v. New Hampshire, 403

U.s. 443, 455 (1971) 9,12,15,21

Cooper v. California 386

U.S. 58 (1967) 16

Florida v. Meyers, U.S.

(1984) 17

Jones v. United States, 362

U.S. 257 27

Katz v. United States, 389

U.S. 347 (1967) 10,26

ii

Table of Authorities (Continued)

Cases

Lustig v’. United States, 338

U.S. 74 (1949)

McDonald v. United States, 335

U.S. 451 (1948)

Michigan v. Thomas, 458

U.S. 259 (1982)

Mincey v. Arizona, supra 437

U.S. at 394

New York v. Belton, 453

U.S. 454

Oliver v. United States,

, 80 L.ed2d 214 4,1

Payton v. New York, 445

U.S. 573 ll,l

People v. Carney, 34

Cal.3d 597

People v. Eatman, 405 Ill. 491

People v. Morrongiello, 145

Cal.App.3d 1

People v. Ramos, 30 Cal.3d 553

Rakas v. Illinois, 439

U.S. 128

Silverman v. United States, 365

U.S. 505

iii

Page

22

14

17

32,33

33

U.S.

0,17,27

2,13,27

30,35

12

3,4

Table of Authorities (Continued)

Cases Page

Smith v.’ Maryland, 442

U.S. 786 10,25,26

South Dakota v. Opperman, 428

U.S. 364 7,15,18

Steagald v. United States, 45l

U.S. 204 12

Stoner v. California, 376

U.S. 483 14,22

Terry v. Ohio, 392 U.S. 1 10

United States District Court,

407 U.S. 297 1l

United States v. Chadwick,

433 U.S. 1 17,18,21,27

United States v. Jeffers, 342

U.S. 42 (1951) 22

United States v. Ross, 456

U.S. 798 23

United States v. Wiga, 662

F.2d 1325 30

United States v. Williams,

630 F.2d 1322 30

Welsh v. Wisconsin, | U.S.

, 52 U.S.L.W. 4581 (1984) 13

iv

Table of Authorities (Continued)

Statutes,

Page

Cal. Gov: Code section 15423 2

x* *~« & & ®

Codes

Cal. Penal Code sections 1526(b)

1528 (b) 3

Cal. Vehicle Code sections 22223

23221

23229 34

x «+ & & ®

Constitutions

Fourth Amendment passim

No. 83-859

IN THE SWPREME COURT OF THE UNITED STATES

October Term, 1983

PEOPLE OF THE STATE OF CALIFORNIA

Petitioner,

CHARLES R. CARNEY,

)

)

)

)

vs. )

)

Respondents, )

)

On Writ of Certiorari to the

Supreme Court of California

BRIEF OF THE CALIFORNIA STATE PUBLIC

DEFENDER AS AMiCUS CURIAE IN SUPPORT

OF RESPONDENT

INTEREST OF AMICUS CURIAE AND CONSENT

The State Public Defender of

California is an agency of the

California state government which is

charged with the representation on appeal

of indigent criminal defendants. The

agency is empowered by statute to appear

". « »« aS a friend of the court. . ”,

Californta Government Code section 15423,

and it appeared as amicus curiae in the

California Supreme Court. The outcome of

the instant case will have a substantial

impact upon the rights of persons repre-

sented by this office, as well as the

public as a whole, to be free of routine

warrantless searches of parked motor

homes. Accordingly, the State Public

Defender of California is filing this

brief amicus curiae in support of respon-

dent.

This brief is filed pursuant to

rule 36 of the Rules of the Supreme Court

of the United States. Consent to the

filing of this brief has been given by

counsel for petitioner and respondent.

A written consent form, signed by counsel

for the parties, accompanies this brief.

SUMMARY OF ARGUMENT

At: issue in this case is the

propriety of the warrantless search of a

parked motor home which had its curtains

drawn. The police had the motor home

under surveillance for over an hour and

half yet made no effort whatever to

obtain a warrant to search it for evi-

dence of criminal activity, despite the

fact that the motor home was located in a

downtown metropolitan area close to a

courthouse, and despite the fact that

California authorizes telephonic

warrants. See California Pena! Code +.--

tions 1526(5) and 1528(b); People v.

Ramos, 30 Cal.3d 553, 574, 639 P.2d 908,

180 Cal.Rptr. 266 (1982), reversed on

other grounds; California v. Ramos,

U.S. » 77 L.Ed.2d 1171 (1983);

People v. Morrongiello, 145 Cal.App.3d l,

9, 193 Cal.Rptr. 195 (1983); Bowyer v.

Superior, Court, 37 Cal.App.3d 151,

162-164, 112 Cal.Rptr. 226 (1974).

Petitioner seeks to justify the search on

the ground that the motor home was a

potentially mobile vehicle and as such

fell within the automobile exception to

the warrant requirement which applies to

any vehicle which might be moved. Amicus

submits that this approach, which focuses

solely on mobility, completely ignores

"the touchstone of [Fourth] Amendment

analysis [which] has been the question

whether a person has a ‘constitutionally

protected reasonable exception of

Privacy.’ ([Citation]" Oliver v. United

States, U.S. » 80 L.Ed2d 214,

223 (1984). It also ignores the facts of

this case, which show that the motor home

was parked and had its curtains drawn.

Amicus submits that when a person purcha-

ses a motor home which has a fully self-

contained living compartment furnished

Similarly to an ordinary home, he or she

enjoys a reasonable expectation that the

motor home, while parked with its cur-

tains drawn, will be treated as a home

and the police will not search it without

a warrant unless exigent circumstances

1/

require an immediate search. In such a

Situation the motor home functions as a

home, and those located inside it are

likely to be engaged in activities of a

private, personal or even intimate

nature. This is particularly true in

light of the fact that motor homes are

1. Since this case deals with a motor

home in its role as a home (parked, cur-

tains drawn), the case is not affected by

considerations which might pertain to

motor homes in their roles as vehicles,

such as a stop of a traveling motor home.

frequently used as temporary retreats by

vacationers and retirees.

The Constitution should protect

parked motor homes to the extent of

requiring the police to obtain a warrant

in the absence of exigency.

ARGUMENT

THE AUTOMOBILE EXCEPTION TO THE

WARRANT REQUIREMENT OF THE FOURTH

AMENDMENT DOES NOT INVARIABLY

APPLY TC A MOTOR HOME

A. Introduction

A motor home such as the one

involved here is a hybrid-part home, part

automobile. The court has traditionally

drawn a distinction between automobiles

and homes in relation to the Fourth

Amendmerit and has upheld searches of

automobiles in circumstances which would

not justify a search of a home. South

Dakota v. Opperman, 428 U.S. 364, 367

(1976). In the instant case, the Court

is called upon to determine whether the

facts of this case fall on the home or

the automobile side of the distinction,

Or whether a new category should be

Created for motor homes. Amicus

Giscusses in this brief several factors

to aid the Court in this task, First,

this brief contains a discussion of prin-

ciples of Fourth Amendment jurisprudence

and case law as they relate to searches

of homes and automobiles. Next, amicus

discusses whether the motor home in this

case, which was parked and had its cur-

tains drawn, when viewed in terms of a

applicable constitutional considerations,

is more appropriately governed by the

case law involving homes or automobiles.

B. Principles of Fourth Amendment

Jurisprudence

The Fourth Amendment provides:

“The right of the people to be

secure in their persons, houses,

papers, and effects, against

unreasonable searches and

seizures, shall not be violated

and no warrants shall issue, but

upon probable cause, supported by

oath or affirmation, and par-

ticularly describing the place to

be searched, and the persons or

things to be seized.”

The ultimate standard set forth in

the Fourth Amendment is reasonableness.

In construing the Fourth Amendment, there

has long been agreement that “except in

certain carefully defined classes of

cases, a search of private property

without proper consent is ‘unreasonable’

unless it has been authorized by a valid

search warrant." Camara v. Municipal

Court, 387 U.S. 523, 528-529 (1967).

"The excepcrions to the warrant require-

ment are ‘jealously and carefully drawn,”

and there must be a ‘showing by those who

seek exemption... that the exigencies

of the situation made that course

imperative." Coolidge v. New Hampshire,

403 U.S. 443, 455 (1971), footnotes

omitted. Moreover, the scope of the

search must be strictly tied to and

justified by the circumstances which ren-

- 10 «-

dered its initiation permissible. Terry

v. Ohio, 392 U.S. 1, 19 (1968).

In Oliver v. United States, supra,

80 L.Ed.2d at 223, this Court recently

reaffirmed that "[s)inc> Katz v. United

States, 389 U.S. 347 (1967) the

touchstone of [Fourth] Amendment analysis

has been the question whether a person

has a the ‘constitutionally protected

reasonable expectation of privacy.'

Citation. The Amendment does not protect

the merely subjective expectation of pri-

vacy, but only ‘those expectations that

society is prepared to recognize as

"“reasonable."' Citation.” See also Smith

v. Maryland, 442 U.S. 736, 739 (1979)

(holding that the expectation of privacy

/

/

/

= li «-

must be “justifiable,” “reasonable,” or

"legitimate").

These principles of Fourth

Amendment jurisprudence have recently

been applied, along with historical and

practical considerations, to searches of

homes and automobiles.

C. Fourth Amendment Principles

Relating to Searches of homes

Searches of homes are afforded the

greatest protection under the Fourth

Amendment. It is an established prin-

ciple that the “physical entry of the

home is the chief evil against which the

wording of the Fourth Amendment is

Girected ... “United States District

Court, 407 U.S. 297, 313 (1972). Indeed,

the concern for protecting the home long

predates the Fourth Amendment and has its

roots in English common law. Payton v.

New York, 445 U.S. 573, 591-598 (1980);

@ 12 «

see also People v. Eatman, 405 Ill. 491,

498, 91 N.E.2d 387, 390 (1950) (tracing

the concern for the home past Lord Coke

and to the Pandects). The Court has thus

recognized as a basic principle of Fourth

Amendment law that searches and seizures

inside a home without a warrant are pre-

Sumptively unreasonable. Payton v. New_

York, supra, 445, U.S. at 586; Steagald

v. United States, 451 U.S. 204, 211-212

(1981); Coolidge v. New Hampshire, supra,

403 U.S. at 474-475.

And the Court has pointed out:

"The Fourth Amendment protects the

individual's privacy in a variety of set-

tings. In none is the zone of privacy

more clearly defined than when bounded by

the unambiguous physical dimensions of an

individual's home -- a zone that finds

its roots in clear and specific constitu-

tional terms: ‘The right of the people

- 13 -

to be secure in their ... homes...

shall not’ be violated.' Payton v. New

York, supra, 445 U.S. at 589. “At the

very core [of the Fourth Amendment]

Stands the right of a man to retreat into

his own home and there be free from

unreasonable governmental intrusion.”

Silverman v. United States, 365 U.S. 505,

511 (1961). The protection against

warrantless searches afforded to homes is

not subject to question, having been

recently reaffirmed by this Court in

welet v. Wisconsin, U.S. » $2

U.S.L.W. 4581 (1984). One's expectation

of privacy in one's home is, in short, a

expectation that society has long

recognized as reasonable.

The expectation of privacy which

one enjoys in one's home does not apply

solely to one's permanent residence. It

applies as well to temporary residences

- 14 -

such as a hotel, Stoner v. California,

376 U.S.',483, 489-490 (1964), and cases

cited, and a rooming house, McDonald v.

United States, 335 U.S. 451 (1948).

Since a parked motor home can function as

a temporary residence no less than a

hotel does, it too should be entitled to

the protections afforded homes, as will

be demonstrated later in this brief.

D. Fourth Amendment Principles

Relating to Searches

of Automobiles

As we have seen, homes, even tem-

porary ones, are entitled to the greatest

protection against warrantless searches.

While automobiles are “effects” and

therefore within the reach of the Fourth

Amendment, there is a constitutional dif-

ference between houses and cars. Cady Vv.

Dombroski, 413 U.S. 433, 439 (1973).

Thus, warrantless examinations of automo-

- 18 «

biles have been upheld in circumstances

in which a search of a home or office

would mot. South Dakota v. Opperman,

supra, 428 U.S. at 367; Chambers v.

Maroney, 399 U.S. 42, 48 (1970).

The rationale behind both the

automobile exception and distinction bet-

ween homes and automobiles is twofold.

First, the inherent mobility of automobi-

les ordinarily creates circumstances of

such exigency that, as a practical

necessity, rigorous enforcement of the

wercant requirement is impossible.

Carrol v. United States, 267 U.S. 132

(1925)}; Coolidge v. New Hampshire, supra,

403 U.S. at 459-460.

Although traditionally the mobi-

lity justification was the primary factor

underlying the automobile exception,

recent decisions from this Court,

upholding warrantless automobile searches

- 16 -

in situations where no immediate danger

was geesehtes that the car would be

removed from the jurisdiction, indicate

that there is no requirement of actual or

eminent mobility. In Cady v. Dombroski,

Supra, a warrantless search of an automo-

bile was upheld even though the car was

disabled as a result of an accident, in

control of the police, and the driver,

the sole occupant, had been arrested and

hospitalized. Similarly, in Cham Ss Vv.

Maroney, Supra, all occupants of the car

had been arrested and the car taken to

the police station. Yet, the warrantless

Search was upheld. In Cooper v.

California, 386 U.S. 58 (1967), the

warrantless search was upheld even though

the occupant had been arrested and the

car impounded. Finally, the Court has

recently upheld the warrantless searches

of cars which had been impounded.

°- 17 -

Florida y. Meyers, U.S. (1984)

(per curtam); Michigan v. Thomas, 458

U.S. 259 (1982). In short, when one

looks to the mobility favor, it appears

that warrantless searches of vehicles

will be upheld even if the possibility of

the vehicle being removed is “remote, if

not non-existent.” Cady v. Dombrowski,

Supra, 413 U.S. at 441-442.

But this court's treatment of

automobiles “has been based [only] in

part on their inherent mobility.” United

States v. Chadwick, 433 U.S. 1, 12

(1977). As noted earlier in this brief,

the touchstone of Fourth Amendment

jurisprudence is whether a person has a

constitutionally protected reasonable

expectation of privacy in the place

Searched. Oliver v. United States,

Supra, 80 L.Ed2d at 223. This principle

| has been applied to automobile searches,

- 18 -

and the Court has found that it is the

diminished expectation of privacy

surrounding the automobile which also

justifys the automobile exception.

(United States v. Chadwick, supra, 433

U.S. at 12.

A variety of factors diminish

the expectation of privacy for automobi-

les. Automobiles, unlike homes, are

subjected to periodic inspection and

licensing requirements and, as part of

what this Court termed the “community

Caretaking function," vehicles are fre-

quently taken into police custody for

traffic control or excessive parking

violations. Cady v. Dombrowski, supra,

413 U.S. at 441; South Dakota v. Opperman,

Supra, 428 U.S. at 368-369. The expec-

tation of privacy as to automobiles is

further diminished by the obviously

public nature of automobile travel.

- 19 «-

"One has a lesser expectation of pri-

vacy in a.motor vehicle its function is

transportation and it seldom serves as

one's residence or as a respository of

personal effects. . . It travels public

thoroughfares where both its occupants

and its contents are in plain view.”

Cardwell v. Lewis, supra, 417 U.S. at

590.

In light of these factors it would

not be objectively reasonable for a per-

son who purchases an automobile to

believe that the police will treat it as

they would a home. But this case does

not concern a simple automobile. A motor

home is a hybrid which combines aspects

of both homes and automobiles.

Therefore, motor homes are not governed

by the rules pertaining to automobiles.

E. Application of Fourth Amendment

Principles to Motor Homes

To recapitulate, this case pre-

sents a hybrid. A motor home has the

mobility of an automobile combined with

the residential characteristics and pri-

- 20 -

vacy expectations of a home. The

question: is whether, for purposes of the

Fourth Amendment, motor homes should, to

some extent, be given the protection

afforded homes or whether as petitioner

has done, the court should ignore the

high expectation of privacy in the motor

home and treat it as if it were nothing

more than an ordinary automobile. Amicus

Suggests that most of the factors which

dilute the expectation of privacy in

automobiles are inapplicable to motor

homes, and that the expectation of pri-

vacy in a parked motor home is equivalent

to that for a home.

Undeniably, motor homes are as

inherently mobile as an ordinary automo-

bile. However, even for the automobile

exception when inherent, as opposed to

actual, mobility is urged as a justifica-

tion for a warrantless search, its true

- 2] «

basis is the reduced expectation of pri-

vacy which applies to a mere automobile.

United States v. Chadwick, supra, 433

U.S. at 12. Indeed, “(t]he word

‘automobile’ is not a talisman in whose

presence the Fourth Amendment fades away

and disappears." Coolidge v. New

Hampshire, supra, 403 U.S. at 461.

"(T]he exercise of a desire to be mobile

does not, of course, waive one’s right to

be free of unreasonable governmental

intrusion." Cardwell v. Lewis, supra,41?7

U.S. at 591.

A person has a greater reasonably

objective expectation of privacy in a

motor home than in a typical automobile.

Ordinarily a motor home serves a function

above that of merely providing transpor-

tation. The motor home often serves as a

permanent or temporary residence. The

motor home can be permanently placed in a

- 22-

mobile home park which makes it even more

consistent with a home. Even if the

motor home is for temporary residential

use, such as on a vacation trip, the

motor home serves the same function as a

hotel or motel. This court has

repeatedly stated that a person who uti-

lizes a hotel or motel has a constitu-

tionally protected right to be free of

warrantless intrusion even though he or

she does not own the premises OF reside

there permanentl,. Stoner v-

California, supra, 376 U.S. at 489-490;

United States v- Jeffers, 342 U.S. 42

(1951); Lustig v- United States, 338 U.S.

74 (1949). There is no legitimate reason

why a person traveling in a motor home

should be denied the same protection

merely because he or she chose to utilize

a motor home instead of a hotel or motel.

Indeed, a motor home is more like a home

- 23 -

than a motel or hotel since it is owned

by its occupant , it is a permanent repo-

sitory of personal effects and persons

such as maids and managers have no access

to it.

Amicus notes that even the most

frail home “is absolutely entitled to the

same guarantees of privacy as the most

majestic mansion.” United States v.

Ross, 456 U.S. 798, 822 (1982)

In keeping with this principle,

the guarantee of privacy in a home shoul.

not be reduced simply because the home is

temporary or is potentially mobile.

Motor homes also serve as a repo~

sitory for personal effects apart from

that contained in an ordinary automobile.

Motor homes are equipped with beds,

refrigerators, toilet facilities and

receptacles for clothing and other per-

sonal items. Furthermore, motor homes

- 24 -

are normally not open to public view as

with most automobiles. Motor homes are

equipped with either small or tinted win-

dows, shades or drapes which prevent

exposure of the occupants and personal

effects as well as precluding anyone from

seeing inside.

Moreover, although they could be

used for such daily activities as driving

to and from work, shopping and other

errands for which one would use a regular

automobile, motor homes are not ordi-

narily used for such purposes. And when

they are used for such purposes, it is

often incidental to their use as a resi-

dence such as stopping in a town to

purchase food or ~undries or to do

laundry.

While motor homes, like automobi-

les, are subject to periodic inspection

and to licensing requirements, this does

- 26 -

not ordinarily extend to an invasion of

the living quarters of the motor home,

and does not greatly reduce the expec~

tation of privacy in the motor home.

And, as has been shown, while an automo~

bile “seldom serves as one's residence

as a repository of personal effects,”

(Cardwell v. Lewis, Supra, 417 U.S. at

590) motor homes ordinarily serve such

functions, indeed, they are designed and

purchased in order to serve such func-

tions.

This court has consistently hela

that the application of the Fourth

Amendment depends on whether the person

invoking its protection can claim a

“justifiable,” a "reasonable" or a

"legitimate expectation of privacy” that

had been invaded by the government

action. Smith v. Maryland, Supra, 442

U.S. at 740; Rakas v. Illinois, 439 U.S.

- 26 -

128, 143.. The inquiry, as Justice Harlan

noted inthis concurring opinion in Katz

v. United States, 389 U.S. 347, 361

(1964), and as the court reiterated in

Smith v. Maryland, Supra, 442 U.S. at

740, normally embraces two discrete

questions. "The first is whether the

individual, by his conduct, has

‘exhibited an actual (subjective) expec~

tation of privacy,' [Citation], whether,

in the words of the Katz majority, the

individual has shown that ‘he seeks to

preserve [something] as private.” The

second question is whether the

individual's subjective expectation of

privacy is “one that society is prepared

to recognize as ‘reasonable,” [Citation]

Smith v. Maryland, 442 U.S. at 740.

"No single factor determines

whether an individual legitimately

may claim under the Fourth

Amendment that a place should be

free of government intrusion not

- 27 -

authorized by a warrant. Citations.

In assessing the degree to which a

search infringes upon individual pri-

vacy, the court has given weight to

such factors as the intention of the

framers of the Fourth Amendment, e.g.,

Un S V. Chadwick, 433 U.S. -l,

a: CLA the uses to which the indi-

vidual has put a location, e.g., s

Vv. S s, 362 U.S. 257, 2

(1960), and our societal understanding

that certain areas deserve the most

scrupulous protection from government

invasion, e.g., n Vv. w k, 445

U.S. 573 1380}. “Oliver ve United

States, supra, 80 L. at - .

By analyzing these factors in the instant

case, this Court should conclude that

respondent had a legitimate and

reasonable expectation of privacy in the

motor home.

Respondent's motor home was

parked on a lot with closed curtains

including one across the front window and

remained in this condition for over an

hour and a half. Under these

circumstances, respondent most assuedly

sought to prevent any exposure or

- 28 -

invasion of privacy from outside.

This expectation of privacy is

also one which society already recogni-

zes. Our society uses a large number of

motor homes, not only for traveling but

for permanent or temporary living quar-

ters as well. While an automobile

“seldom serves as one's residence or as 4

repository of personal effects,”

(Cardwell v. Lewis, Supré, 417 U.S. at

590) a motor home, as its name implys,

usually does. Indeed, it serves a resi-

dential purpose, at least temporarily,

when one parks it and closes the cur-

tains.

The fact that the motor home in

this case was not parked at motor park or

campground is of little constitutional

significance. Just as one can go to

one's house for an hour and a half to eat

lunch and to take a nap, one can do the

- 29 -

same thing by parking it on a street or

in a parking lot.

Society as a whole recognizes that

motor homes function as homes. Our

nation has numerous motor home parks as

well as established motor home com-

munities where our citizens place their

homes permanently and temporarily.

Furthermore, motor homes have tradi-

tionally been residences for vacationers,

retirees or elderly persons. This is so

because one can live in a motor home on a

modest income. If this court treats

motor homes as mere automobiles, it would

do little, if nothing, to honor the pri-

vacy expectations of a large segment of

Our society.

Petitioner correctly notes that

some courts have included motor homes

within the automobile exception. See

Petition for Writ of Certiorari 16-17,

- 30 -

24-25. A review of those cases shows no

appreciation of the residential functions

which motor homes serve, the personal,

private and intimate activities which

occur inside parked motor homes, Or the

importance of a citizen's reasonable

expectation of privacy when purchasing

and using a motor home. In contrast,

courts which have appreciated these fac~-

tors, and have considered them against

the rationales for the automobile excep-

tion, have ruled that it is the expec~

tation of privacy which prevails. United

States v. Wiga, 662 F.2d 1325, 1329 (9th

Cir. 1981), cert. denied, 449 U.S. 918

(1982); United States v. Williams 630

F.2d 1322, 1326 (9th Cir.), cert. denied,

449 U.S. 865 (1980); People v. Carney,

34 Cal.3d 597, 603-610, 668 P.2d 807, 194

Cal.Rptr. 500 (1983).

- 3] -

In summary, a motor home is more

consistent with the uses of a private

residence while an automobile is not. 4

parked motor home with its curtains drawn

should be protected from warrantless

searches and seizures at least to the

extent of requiring officers to obtain a

warrant prior to searching the motor

home.

It should also be noted that

requiring stringent warrant requirements

for motor homes poses no greater burden

or confusion for police officers than

that created by the line of cases which

discuss the extent to which the police

2/

may search an ordinary automobile.=

2. Even if law enforcement could be

made more efficient if officers were not

required to obtain a warrant, that fact

does not justify abrogation of the

warrant requirement. [T]he privacy of a

person's home and property may not be

- 32 -

Motor homes are easily distuishable from

a typical automobile. Though they are

mobile, if officers have probable cause

to believe illegal activity is being con-

ducted inside, they can conduct sur-

veillance of the motor home until a

warrant is issued. For instance in this

case, the police had previously received

information that illegal activities were

being conducted in respondent's motor

home, and the police kept respondent's

motor home under surveillance for over an

hour and a half. It would have required

little effort for the police to have

obtained a warrant in person from a

magistrate or to have utilized

California's telephonic warrant proce-

dure. See p. 2 of this brief, Supra.

(footnote 2 continued)

totally sacrificed in the name of maximum

simplicity in enforcement of the criminal

law." Mincey v. Arizona,

- 33-

Amicus recognizes that this Court

has send iy attempted, where feasible,

tc provide rules in the Fourth Amendment

context which are easily understood and

applied by the police. See, €.9-, New_

York v. Belton, 453 U.S. 454, 458 (1981).

Consistent with this approach, the posi-

tion taken in this brief provides easily

understood guidelines. This Court also

recognizes that the privacy of a person's

home and property are not to be totally

sacrificed in the name of maximum simpli-

city in enforcement or the criminal law.

Mincey v. Arizona, supra 437 U.S. 394.

Requiring the police to attempt to

obtain a warrant before searching a

parked motor home is a rule which

furthers both goals.

A true motor home--one purchased

and used in the reasonable expectation

that it will be treated as a home when it

- 34 -

is serving that function either per-

manently, or temporarily--is easily iden-

tifiable as such. Just as the police can

distinguish a sedan from a station wagon,

they can and do distinguish motor homes

from mere automobiles when, for example,

broadcasting descriptions of stolen or

suspect vehicles. Indeed, police

constantly make such distinctions when

enforcing the California Vehicle Code.

For example, while sections 23221 and

22223 of that code prohibit the drinking

of alcoholic beverages or the possession

of an open container of an alcoholic

beverage in motor vehicle, section

23229(a) expressly exempts "the living

quarters of a housecar or camper."

Petitioner seriously underestimates the

abilities of the police when he suggests

that police officers are incapable of

making distinctions which they in fact

- 35 -

routinely make in their work. See

Petition for Writ of Certiorari 28-29.

There is no problem in identifying

large motor homes, such as a 30 foot Pace

Arrow or Winnebago. External features

reasonably identify smaller motor homes.

See People v. Carney, Supra, 34 Cal.3d at

607.

The position taken in this brief

provides necessary guidance for the

police. Once they observe external

features which identify the vehicle as a

motor home and see that it is parked,

they must attempt to obtain a warrant,

either personally or telephonically,

before searching it. If something arises

which makes the obtaining of a warrant

unfeasible--such as a true exigency or

actual or imminent movement--they may

treat the motor home as an automobile.

- 36 -

The rule here advanced, in short,

adequately serves all pertinent constitu-

tional and societal vaues. It respects

the great expectation of privacy which

pertains to temporary and permanent resi-

dences, which include motor homes. It

appreciates the distinction between motor

homes and automobiles, it is easy to

apply since it involves a distinction

which police routinely make when

describing stolen or suspect vehicles.

It is a rule which permits the police to

dispense with the warrant requirement

when it appears necessary to do so.

- 37 -

CONCLUSION

Motor homes serve as temporary anu

permanent homes for a large number of

citizens, including vacationers and

retirees. Persons buying motor homes do

so in the objectively reasonable expec-

tation that they will use motor homes as

a temporary or permanent residence and

will engage in personal, private and

intimate activities in their motor homes.

Police should be required to make

some effort to honor the privacy expec-

tations of the occupants of parked

motor homes by making an attempt to

obtain a search warrant, either per-

sonally or telephonically, Accordingly,

/

/

/

/

/

- 38 -

we submit that the judgment of the

California Supreme Court should be

affirmed.

a

Respectfully submitted,

FRANK O. BELL, JR.

State Public Defender of California

GEORGE L. SCHRAER

Deputy State Public Defender

CYNTHIA A. THOMAS

Deputy State Public Defender

Attorneys of Amicus Curiae

June 29, 1984