Opposition Brief — California v. Acevedo

MO. A-783 (89-1690)

October Term, 1990

PEOPLE OF THE STATE OF CALIFORNIA,

Petitioner,

vs.

CHARLES STEVEN ACEVEDO,

Respondent.

RESPONDENT'S BRIZY IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

FRED ©. ANDERSON

ANDERSON 6&6 ANDERSON

1851 East First Street

Suite #1450

Sante Ana, CA 92705

(714) 835-4400

Attorney for Respondent

1. Whether the Court of Appeals fully considered and

correctly decided whether respondent's Fourth Amendment rights were

violated when officers searched and seized without « warrant the

brown paper lunch bag in respondent's automobile trunk.

2. Whether Chadwick, Sanders end Castieberry, were

Gistinguishable from Ross so that the decision of the Court of

Appeal was correctly decided in light of the facts of the instant

case.

PARTIES TO PROCEEDINGS

Petitioners are the People ot the State of Californie and the

Respondent is CHARLES STEVEN ACEVEDO.

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TABLE OF CONTENTS

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Counter Statement of Questions presented.......... eee —

Parties to Froceed ing — TL ae © |

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ren.. eee eee ses eee 1

Dr ee eee 2

Constitutional Provisions Ivo“ 2

BUSBSESMS GE GRO GEGBe ccc ccccccsccccccececeseeseeeseeeesecesescoeses 2

nene... . . . ... „eee eee eee ee eee ess 3

eee. .... 3

I. The Court Below Fully Considered and

Correctiy Decided the 166% rn 3

Il. The Decision Below Follows an Unbroken

SMO „rene ?

111. The Cases Relied Upon By Petitioner Are

Distinguishable in Their Pacts... ~~... ..ccccccccucce 12

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TABLE OF AUTHORITIES

United States Constitution:

United States Statutes:

Title 28, United States Code Section 1257(3)....--eeceeeececceceseseed

Cases:

Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586,

61 L. Ed. 2d 235 (1979) —U— ee 5 6 06 %% %%% % %hõůj̃e ee eee. . 6, 7, 8, 9, 10

Oklahoma v. Castleberry, 471 U.S. 1460619563) '. 1, 6, 9, 11, 12

People v. Acevedo (1989) 216 Cal.App.3d 586,

Se Ge Ue BD Secedocccccoccccccess . 1, 2, 4, 5, 6, 7, 8, 10, 12

Beamle vw. Beles (1905) 39 en. 2 lꝶ . 6660 9

United States v. Chadwick 433 U.S. 1 (1977).......4, 5, 6, 7, 9, 10, 11, 12

United States v. Johns, 469 U.S. 1 (17) 4, 3, 7, 11, 12

United States v. Ross, 456 U.S. 798 (1982).....i, 3, 4, 5, 6, 7, 10, 11, 12

United States v. Salazar, 805 F.2d 1384 (9th Cir. 1986)........4, 7, 10, 12

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NO. A-783 (89-1690)

October Term, 1990

PEOPLE OF THE STATE OF CALIFORNIA,

Petitioner,

vs.

CHARLES STEVEN ACEVEDO,

Respondent.

RESPONDENT'S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Respondent, CHARLES STEVEN ACEVEDO, respectfully prays that a

writ of Certiorari be denied to review the judgment and opinion of

the California Court of Appeal, Fourth Appellate District, Division

Three, Civil No. 6007480, issued on December 12, 1989.

OPINIONS BELOW

The opinion of the Court of Appeal in this case is reported at

216 Cal.App.3d 586, 265 Cal.Rptr. 21. It is also included in

petitioner's Appendix A to the Petition for Writ of Certiorari.

The first order modifying the concurring opinion is reported

at 216 Cal.App.3d 586, 265 Cal.Rptr. 23, and included in

Petitioner's Appendix B to the Petition. The second order

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modifying the concurring opinion is also reported at 216 Cal.App.3d

586, 265 Cal.Rptr 23, and is included in Appendix c to the

Petition.

The order of the California Supreme Court denying the Petition

for Review on direct appeal was entered in the Official Minutes of

that Court and reported in the Official Advance Sheets of the

California Supreme Court. The Minute Order is reproduced in

Petitioner's Appendix E to the Petition for Writ.

JURISDICTION

The jurisdictional requisites are adequately set forth in the

Petition by invoking Title 28, United States Code Section 1257(3).

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Amendment IV:

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 particularly

describing the place to be searched, and the

persons or things to be seized.

STATEMENT OF TEE CASE

The facts of the case are stated fully in the decision of the

Court of Appeal in the State of California (see Petitioner's

Appendix A, pages A-1 through A-4).

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STATEMENT OF FACTS

See petitioner's Petition for Writ of Certiorari, pages 8

through 12.

REASONS FOR DENYING TEE WRIT

There are two compelling reasons why the Petition should be

denied.

First, the Court below fully considered and correctly decided

the issue of whether the search of the paper lunch bag in the trunk

of the vehicle belonging to respondent was justified under the

automobile exception to the Fourth Amendment warrant requirement.

Second, the decision below follows an unbroken line of authority

and the Court's prior decisions are controlling .

I

THE COURT BELOW FULLY CONSIDERED AND

CORRECTLY DECIDED THE ISSUES

Petitioner propounds that in the case at bar the Court of

Appeal failed to recognize that once the bag was placed in the

automobile, it acquired the same degree of mobility as the vehicle

itself. g

Petitioner has relied on United States vy. Ross, 456 U.S. 798

(1982) which justified a warrantless search of an automobile that

was believed to have been transporting contraband and petitioner

argues that Ross applies with equal force to any movable container

that is believed to be carrying an illicit substance within an

automobile. However, Ross states, at page 817, "Unlike Chadwick

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and Sanders, in this case police officers had probable cause to

search respondent's entire vehicle." Ross recognizes the

distinction between probable cause to search the whole vehicle and

probable cause to search a container within a vehicle.

The Court of Appeals recognized, considered and ruled on the

basis of the existing law stating:

We recognize the anomalous nature of the

Ross-Chadwick dichotomy: If police have

probable cause to believe contraband is

concealed in a particular container, they must

obtain a warrant before searching it, even

when it is being stored in a vehicle. If the

investigation has, for whatever reason, yet to

focus on a particular container and there is

only probable cause to believe the contraband

is located gomewhere in an autouobile,

officers may conduct a warrantless search of

any container in the car that could reasonably

conceal the evidence. People vy. Acevedo, 216

Cal.App.3d 586 at 592.

The Acevedo court further relied on United States vy. Salazar,

805 F. 2d 1384 (9th Cir. 1986), in which officers saw dealers“ hand

a brown shopping bag to Salazar who placed the bag in a locked car.

Salazar was stopped as he drove away and the bag was seized and

searched. Relying upon the decisions in United States v. Chadwick,

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433 U.S. 1 (1977) and Arkansas v. Sanders, 442 U.S. 753, 761 n.8, probable cause to believe that a specific

99 S.Ct. 2586, 2592 n. 8, 61 L.Ed.2d 235 (1979), the Salazar court closed container holds contraband, however,

concluded that a warrantless search of the bag was unlawful even they must obtain a search warrant before

though it was located in an automobile because: opening it, even though it is located in an

there is no greater need for warrantless

searches of [containers] taken from automo-

biles than of [containers) taken from other

places, and that containers located in

automobiles are not ‘necessarily attended by

any lesser expectation of privacy than is

associated with [containers] taken from other

locations 422 U.S. at 764, 99 S.Ct. at

2593. The Supreme Court has distinguished

between searches of containers found in a car

based upon probable cause that a specific

container placed in a car contains contraband,

and searches based upon a generalized belief

that a car contains contraband somewhere

inside. In the latter case, the entire

vehicle, including closed containers found

therein, may be searched to the same extent as

if a magistrate had issued a warrant based on

automobile. 433 U.S.; see Ross, 456 U.S. at

813, 102 S.Ct. at 2166 (quoting Chief Justice

Burger's concurrence in Sanders, 442 U.S. at

766-67, 99 S.Ct. at 2594). See also

Castieberry _v. State, 678 P. 24 720

(Okla.Crim.App. 1984), aff'd by equally

divided Court sub __nom. __Oklahoma _v.

Castleberry, 471 U.S. 146, 105 S.Ct. 1859, 85

L. Ed. 2d 112 (1985).

Here, as in Sanders, the police officers

could have taken the container seized with

probable cause, along with the suspect, to the

police station and obtained a warrant for

search. See Sanders, 442 U.S. at 766, 99

S.Ct. at 2594. A closed paper bag shares the

same degree of Fourth Amendment protection as

the footlocker in Chadwick and the unlocked

suitcase in Sanders. IA. eat pp. 1397-1398.

the probable cause relied on by the officers. Therefore, the court below fully considered and correctly

Ross, 456 U.S. at 823, 102 S.Ct. at 2172. decided the issues.

Where, prior to a search, officers have 4/

5 6

11

THE DECISION BELOW FOLLOWS AN UNBROKEN LIWE OF AUTHORITY

As is clear from the Acevedo opinion, the Court ruled that an

officer could not open the lawfully seized bag without first

obtaining a warrant. "That is the rule of a line of cases headed

by United States vy. Chadwick, 433 U.S. 1 (1977) .... " People vy.

Acevedo, 216 cal App d 586 at 590.

In Cha@wick there was a double-locked footlocker which had

been transported on a train and which narcotics agents had probable

ceuse to believe contained narcotics. The footlocker was loaded

into an automobile after being unloaded from the train after which

the egents made an errest. More than one hour elapsed from the

time of arrest and the search of the footlocker. The Chadwick

court held that:

In our view, when no exigency is shown to

support the need for an immediate search, the

Warrant Clause places the line at the point

where the property to be searched comes under

the exclusive dominion of police authority.

Respondents were therefore entitled to the

protection of the Warrant Clause with the

evaluation of a4 neutral sagistrate before

their privacy interests in the contents of the

footlocker were invaded. United States v.

Chadwick, 433 U.S. 1 (1977) at pp. 15-16.

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Sanders involved 4a warrantless search of a suitcase that

police officers believed contained marijuana. An arrest vas made

by officers following a short chase of the respondents leaving an

airport in a taxicab. Prior to the arrest officers searched the

trunk of the taxicab without obtaining permission. The suitcase

was found and searched. It contained marijuana. The ganders court

held that:

We conclude that the State has failed to

carry its burden of demonstrating the need for

warrantless searches of luggage properly taken

from automobiles. A closed suitcase in the

trunk of an automobile may be as mobile as the

vehicle in which it rides. But as we noted in

Chadwick, the exigency of sobility sust be

assessed at the point immediately before the

search - after the police have seized the

object to be searched and have it securely

within their control. See 433 U.S. at 13.

Once police have seized a suitcase, as they

did here, the extent of its mobility is in no

way affected by the place from which it was

taken. Accordingly, #8 & general rule there

is no greater need for warrantless searches of

luggage taken from automobiles than of luggage

taken from other places.

8

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contemporaneously with the search.

In sum, we hold that the warrant

requirement of the Fourth Amendment applies to

personal luggage taken from an automobile to

the same degree it appl‘es to such luggage in

other locations. Thus, insofar as the police

are entitled to search such luggage without «

warrant, their actions sust be justified under

some exception to the warrant requirement

other than that applicable to automobiles

stopped on the highway. Where - as in the

present case - the police, without endangering

themselves or risking loss of the evidence,

lawfully have detained one suspected of

criminal activity and secured his suitcase,

they should delay the search thereof until

after judicial approval has been obtained. In

this way, constitutional rights of suspects to

prior judicial review of searches will be

fully protected. 422 U.S. at pp. 765-766.

The search of suitcases and a Band-Aid box was the subject of

the CGastieberry case wherein the defendants were arrested

In Castleberry the Court held:

The case at bar clearly falls within the

Chadwick-Sanders line of cases. The suspected

lecations of the contraband were the suitcases

and the Band-Aid box which Castleberry threw

into the car. Accordingly, we hold that the

motion to suppress was erroneously overruled.

The officers should have detained the

containers until a search warrant had been

obtained. 678 P.2d at p. 724.

Petitioner further asserts that it is not rational to make the

distinction between whether officers had knowledge that the

contraband was in « specific container in a specific part of the

vehicle as opposed to being in the vehicle generally. However, it

is not only rational, but the Supreme Court created that exception

when Ross was decided. The Bess rule carved out an exception to

Chadwick-Sanders by allowing the officers to search the entire

vehicle, including the containers when they had probable cause to

believe that narcotics were being sold from the trunk of the

vehicle. The Ross court recognized the Chadwick-Sanders rule

stating at page 614:

It is clear, however, that in neither

Chadwick nor §anders did the police have

probable cause to search the vehicle or

anything within it except the footlocker in

the former case and the green suitcase in the

latter.

Thus, it is abundantly clear that the Court of Appeal in

Acevedo properly considered and distinguished Ross from Chadwick,

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Sanders and Salazar. In addition, in Acevedo the court

specifically recognized the Ross-Chadwick dichotomy by stating:

If police have probable cause to believe

contraband is concealed in «a particular

container, they wust obtain a warrant before

searching it, even when it is being stored in

a vehicle. If the investigation has for

whatever reason, yet to focus on « particular

container and there is only probable cause to

believe the contraband is located gopewhere in

an automobile, officers say conduct «a

warrantless search of any container in the car

that could reasonably conceal the evidence.

216 Cal.App.3d at 592.

In Oklahoma vy. Castleberry, 471 U.S. 146 (1985), the

distinction between a known specific container and contraband

somewhere in the car surfaces again. Even though the United States

Supreme Court divided equally, it affirmed the decision to suppress

evidence obtained in similar conditions as in the case at bar; to

wit, police officers searched and seized « blue suitcase in the

trunk of a car, without a warrant, knowing it contained narcotics.

Finally, in United States vy. Johns, 469 U.S. 478 (1985), the

distinction between Chadwick end Ross was again recognized by this

Court. In Johns. officers seized trucks and searched their

containers without « warrant because the customs officers had

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probable cause to believe that the trucks contained contraband

because of the smell emanating from them. md. at pp. 482-483.

In Johns, police hed probable cause to believe that the vehicle,

compared to the footlocker in the trunk of the car in Chadwick.

contained contraband.

This Court has recognized the Acevedo fectual situation since

Chadwick and has consistently affirmed it. Therefore, this is not

& new or novel set of circumstances and the Writ of Certiorari wust

be denied.

111

PRIOR DECISIONS ARB CONTROLLING

Petitioner urges that there is a need for straightforward and

predictable rules. Relying on Ross. aupra, petitioner's argument

that there is an overall existence of probable cause to search this

vehicle and its contents is pure fantasy.

Furthermore, the “bright line* petitioner is seeking has

already been set forth according to specific factual distinctions

In Gastieberry. Salazar. Chadwick end Johns. There is no reason to

overrule Ross because Ross is still good lew as it applies to the

dane set of facts as Ross ~~ where officers do not have sufficient

information or knowledge that contraband say be in «a specific

container in a vehicle but have probable cause to believe the

vehicle iteelf contains contraband, they say search it without «

werreant.

Last ly, petitioner argues that the rule created by the Court

12

of Appeal will ensnare officers and citizens in time consuming and

unnecessary waits to procure warrants. Petitioner fails to

recognize the reason for the Fourth Amendment. It is the right of

the people to be secure in their persons, homes, papers, and

effects against unreasonable searches and seisures.

The line of cases relied upon by the Aceyedp Court of Appeal

are controlling under the circumstances presented by this cease.

Thus, there is no need for review of this satter.

CONCLUSION

WHEREFORE, respondent preys that this Court deny the Writ of

Certioreri.

Respectfully subsitted,

Kio

Attorney for Respondent

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