Petition for Writ of Certiorari — Oklahoma v. Castleberry

ie Couit, WS. |

83- 212 6 _@D

JUN 11 1984

ALEXANDER L. STEVAS,

CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

THE STATE OF OKLAHOMA,

Petitioner,

V.

TIMOTHY R. CASTLEBERRY

and

NICHOLAS RAINERI,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

OKLAHOMA COURT OF CRIMINAL APPEALS

MICHAEL C. TURPEN

ATTORNEY GENERAL OF OKLAHOMA

DAVID W. LEE*

ASSISTANT ATTORNEY GENERAL

CHIEF, CRIMINAL AND FEDERAL

DIVISIONS

HUGH A, MANNING

ASSISTANT ATTORNEY GENERAL

112 State Capitol Building

Oklahoma City, OK 73105

(405) 521-3921

Attorneys for Petitioner

*Counsel of Record

i

QUESTIONS PRESENTED FOR REVIEW

1. Whether, under the Fourth Amend-

ment principles set forth in United

States _ v. Ross, 456 U.S. 798 (1982),

when an officer has probable cause to

believe that there is contraband in a

specific container in a vehicle, he is

required to obtain a search warrant for

the vehicle and the compartments and

containers therein or may he search the

vehicle and compartments and containers

for contraband without a warrant.

2. Whether, when officers arrest a

Suspect on probable cause, and the sus-

pect, who is standing next to the

vehicle, is able to place a container

inside of a vehicle, the police may

search the container as being a search

incident to arrest.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR

REVIEW o o es s s @ o ® e _ _ s . o i

OPINIONS BELOW . . . «© «© «© © «© « « 2

RELEVANT CONSTITUTIONAL

PROVIS IONS @e ° ° e @ @ oe @ . . e sd 2

STATEMENT OF THE CASE ..... « 3

REASONS FOR GRANTING THE

PETITION e @ o e @ es e s oe ° ° e ° yg

PROPOSITION I

THE SEARCH OF THE SUITCASES

IN THE TRUNK OF THE VEHICLE

WAS JUSTIFIED UNDER THE AUTO-

MOBILE EXCEPTION PRINCIPLE

OF THE LAW OF SEARCH AND

SEIZURE .... +++ ++ « « 9

PROPOSITION II

THE SEARCH OF THE BAND-AID

BOX FOUND IN THE FRONT SEAT

OF THE VEHICLE WAS JUSTIFIED

BOTH AS BEING AN OBJECT OF

THE SEARCH UNDER THE AUTOMO-

BILE EXCEPTION AND AS A

SEARCH INCIDENT TO A LAWFUL

ARREST . . . «. «© © © © © © « « 17

CONCLUS ION °° 2© fe ef ef © © © © #© @# @ 20

APPENDIa A -— -— -. &£§ £ € @€ © © 6 ®@ la

OPINION OF THE OKLAHOMA COURT

OF CRIMINAL APPEALS ..... . la

iii

TABLE OF AUTHORITIES

Cases: Page

Arkansas v. Sanders,

442 U.S. 753 (1979) ..e- - 9,17

Carroll v. United States,

_ SP? 2). OC ee 13

Castleberry v. Oklahoma,

678 P.2d 720 (Okl.Cr.

1984) oo eo _ oe eo e 7 os oe 7 — oe 2

Chambers v. Maroney,

Bee Gelbc GS thee) © © ewe ee 13

Colorado v. Bannister,

449 US. 1 (1980) se ¢*¢%* 12

Michigan v. Thomas, 458 U.S. 259

(1982) ° « ° ° ° . ° o ° . ° 15

New York v. Belton, 453 U.S. 454

(1981) -_ 20©« «© «© «© @# @# #© #© @# @ 14,17-

20

Texas v. White, 423 U.S. 67

(1975) e ° ° ° o e ° ° ° e e 13

United States v. Chadwick,

Gee Gelco & CEBtth «© © © eo 6 9,18

United States v. Ross,

456 U.S. 798 (1982) ... . «i,9-12,

14,15-18

Statutes:

28 U.S.C. 3 1257(3) «.« «© « «© « «@ 2

iv

TABLE OF AUTHORITIES--Continued

Other Authorities: Page

LaFave, Search and Seizure,

3 7.2, p. 200 (Supp. 1984) .. 13

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

No.

THE STATE OF OKLAHOMA,

Petitioner,

Vv.

TIMOTHY R. CASTLEBERRY

and

NICHOLAS RAINERI,

Respondents.

‘

PETITION FOR A WRIT OF CERTIORARI TO THE

OKLAHOMA COURT OF CRIMINAL APPEALS

The Petitioner, the State of Okla-

homa, by the Attorney General of COkla-

homa, Michael C. Turpen, prays that a

Writ of Certiorari issue to review the

judgment of the Oklahoma Court of Crimi-

nal Appeals in this matter.

2

OPINIONS BELOW

The decision of the Oklahoma Court

of Criminal Appeals from which the

certiorari is sought was reported as

Castleberry v. Oklahoma, 678 P.2d 720

(Okl.Cr. 1984). See Appendix A. This

Opinion was filed on January 23, 1984,

and the State of Oklahoma's (hereinafter

referred to as “the State") Petition for

Rehearing was denied on April 5, 1984.

The Court's mandate was issued on April

ll, 1984. The jurisdiction of this

Court is invoked pursuant to 28 U.S.C.

3 1257(3).

RELEVANT CONSTITUTIONAL PROVISIONS

The Fourth Amendment to the Consti-

tution of the United States provides:

"The right of the people to be

secure in their persons, houses,

papers, and effects, against

unreasonable searches and_ sei-

zures, 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 THE CASE

At approximately noontime on June 9,

1981, Officer R. D. Taylor of the Okla-

homa City Police Department, Narcotics

Division, received a telephone call from

an informant advising him that at the

Southgate Inn, located on South Inter-

state Highway 35 in Oklahoma City, Okla-

homa, the informant had seen a large

quantity of marijuana, some cocaine, and

white pills in Room 113. MThe informant

gave the officer a description of the

men in the room and of the suitcase

containing some of the narcotics. The

informant also told the officer that one

of the men was Tim Castleberry and the

Other was named Nick. The officer wee

also informed that they were driving a

\

4

1980 or 1981 blue Thunderbird with

Florida license plates (Tr. I, 5-7).1

Officer Taylor immediately went to

the location. He drove through the

parking lot and observed a blue 1980 or

1981, Thunderbird with Florida license

plate in front of Room 113. He parked

his vehicle approximately 5 parking

Spaces away from the car and went into

the desk clerk, and after telling her

that he was a police officer, inquired

as to who was staying in Room 113 (Tr.

I, 7). The desk clerk said that it was

registered to a Tim Castleberry (Tr. I,

8).

The officer returned to his car and

waited (Tr. I, 8). He had previously

Ifthe following transcript designa-

tions will be used: Tr. I =- Transcript

of proceedings held on September 1-2,

1981 (F-82-227); Tr. II - Transcript of

trial proceedings held on September

23-24, 1981 (F-82-228).

5

called for assistance (Tr. I, 7). After

a short wait, Officer Taylor observed

the Respondent Castleberry (hereinafter

referred to as the “Defendant Castle-

berry") exit the motel room carrying a

baby blue leather suitcase (Tr. I, 8),

and place it in the trunk of the car.

He left the trunk open and the Respon-

dent Raineri (hereinafter referred to as

"Defendant Raineri”) came out carrying

two plaid suitcases, which were also

placed in the trunk. Then a young male

came out and went to a red car parked

next to the Thunderbird. The Defendant

Castleberry again came out of the room

Carrying another blue suitcase, which he

placed in the backseat of his vehicle.

After inquiring about his' backup,

Officer Taylor approached the car while

the door and the trunk were still open

(Tr. I, 9). All three men were standing

6

outside. He held his badge in one hand

and his service revolver in the other,

advised the men he was a police officer

and ordered them to place their hands on

the car.

The Defendant Raineri placed his

hands on the vehicle as ordered (Tr. I,

10), but the Defendant Castleberry,

after closing the trunk of the car,

reached behind his back. The officer

twice asked him to place his hands on

the car, but instead, the Defendant

Castleberry threw something from behind

his back into the car (Tr. I, ll).

Officer Taylor then attempted to physi-

cally force the Defendant Castleberry to

place his hands on the car, but ended up

wrestling him to the ground.

While sitting on the ground, the

Defendant reached up, locked the car

7

door, and closed it. The car keys were

still in the car door.

At this time, Officer Taylor's part-

ner, Cfficer Bill Citty arrived.

Officer Taylor gave Officer Citty the

car keys, told him he had smelled mari-

juana coming from the trunk, and asked

him to open the trunk. Officer Citty

then opened the trunk and also smelled

marijuana (Tr. I, 11). Officer Citty

then opened one of the suitcases and

observed marijuana. Officer Taylor then

advised the men that they were under

arrest. Officer City then opened the

blue leather suitcase and found that it

contained a large sum of cash and a

Clear plastic baggy containing approxi-

mately 10 ounces of white powder (Tr. I,

12). The powder was later determined to

be methaqualone powder (Tr. I, 37).

8

Officer Citty then opened the car

door and searched the interior (Tr. II,

13). In that search, he found a white

Band-Aid box on the dashboard of the

vehicle which contained approximately an

ounce of white powder (Tr. II, 14,

59-60). This white powder was later

determined to be cocaine (Tr. II, 68).

The Defendant Castleberry was

individually charged and tried for the

offense of Possession of a Controlled

Dangerous Substance with Intent to

Distribute and was convicted of Posses-

sion of a Controlled Dangerous Sub-

stance. The Defendants Castleberry and

Raineri were jointly charged and tried

on two (2) counts each for the offense

of Possession of a Controlled Dangerous

Substance with Intent to Distribute and

were subsequently convicted on both

counts.

9

REASONS FOR GRANTING THE PETITION

PROPOSITION I

THE SEARCH OF THE SUITCASES IN THE

TRUNK OF THE VEHICLE WAS JUSTIFIED

UNDER THE AUTOMOBILE EXCEPTION

PRINCIPLE OF THE LAW OF SEARCH AND

SEIZURE.

The Oklahoma Court of Criminal

Appeals held that the officers illegally

searched the suitcases found in the

trunk of the vehicle, holding that the

search fell within the dictates of

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

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

l (1977), rather than those of United

States v. Ross, 456 U.S. 798 (1982).

The pertinent part of the Opinion of the

Oklahoma Court of Criminal Appeals in

this regard is as follows:

"If the officer has probable cause

to believe there is contraband

somewhere in the car, but he does

not know exactly where, he may

search the entire car as well as

any containers found therein.

[Citations omitted] ... If, on

the other hand, the officer has

10

only probable cause to believe

there is contraband in a specific

container in the car, he must

obtain the container and delay his

search until a search warrant is

obtained." 678 P.2d at 724;

Appendix, infra, 10a.

The Court held that since the suit-

cases and the Band-Aid box were the

"suspected locations” of the contraband,

"(t]he officers should have detained the

containers until a search warrant had

been obtained." 678 P.2d at 724; Appen-

dix, infra, l2a.

The State contends that the ruling

of the Oklahoma Court of Criminal

Appeals is at odds with that of this

Court in United States v. Ross, supra.

In Ross, the Supreme Court specifically

held that once probable cause is found

that a vehicle contains contraband the

entire vehicle may be searched without a

Warrant and “(t]he scope of a warrant-

less search based on probable cause is

ee eee

a

ll

no marrower--and no broader--than the

scope of the search authorized by a

warrant supported by probable cause."

456 U.S. at 823.

The State submits that the Court of

Criminal Appeals erred when it held that

officers must procure a search warrant

for an automobile when they have know-

ledge of the suspected location of

contraband within a vehicle but are not

required to obtain a warrant when they

know only that the contraband is some-

where within.

Furthermore, there is no significant

distinction than the facts in Ross and

the facts in the present case. In Ross,

the police were advised by a confiden-

tial informant that an individual was

selling narcotics kept in the trunk of

the car. The facts in the present case

set forth previously demonstrate the

oe 6 ee ee

.

12

abundance of information possessed by

Officer Taylor which clearly establish

probable cause.

It is important to note that the

Court of Criminal Appeals did not ade-

quately set forth their rationale for

holding that the suitcases in the trunk

were improperly searched. The Court

said only that the “officers should have

detained the containers until a search

warrant had been obtained.” 678 P.2d at

724.

The State submits that the holding

of the Oklahoma Court of Criminal

Appeals with regard to the search of the

trunk conflicts not only with United

States v. Ross, supra, but established

Fourth Amendment law with regard to the

automobile exception principle to the

general requirement of a search warrant.

Cf., Colorado v. Bannister, 449 U.S. 1

13

(1980); Texas _v. White, 423 U.S. 67

(1975); Chambers _v. Maroney, 399 U.S.

42 (1970); Carroll v. United States, 267

U.S. 132 (1925).

It is not rational to make the dis-

tinction between whether a search war-

rant should be obtained be based upon

whether or not the officer had suffi-

cient knowledge to believe that’ the

contraband was in a specific part of a

vehicle, as opposed to being in _ the

vehicle generally. As was pointed out

in LaFave, Search and Seizure, 3 7.2, Pp.

200 (Supp. 1984), this holding would

mean that the police may actually be

able to broaden their power to make

warrantless searches by revealing less

than all their probable cause informa-

tion. As stated previously, the Okla-

homa Court of Criminal Appeals is

holding that if the officers had been

/

é

:

7

|

5

14

advised by the informant only that some-

where in the vehicle there are narcotics

they could have searched the vehicle

without a warrant, but that by being

told by the informant that the narcotics

were located in the suitcases they were

required to obtain a search warrant.

This rationale clearly goes against

the stated desire of this Court that

straightforward, workable rules regard-

ing the search of vehicles be formulated

to allow police, who have only limited

time and expertise, to make decisions

regarding the search of vehicles.

United States v. Ross, supra; New York

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

Furthermore, in United States v.

Ross, supra, the police in that case

also had specif.c knowledge as to the

area in which narcotics were to _ be

located, i.e., the trunk. Therefore, if

:

:

:

‘

:

5

15

the reasoning of the Court of Criminal

Appeals were used in the Ross case,

(since the police knew of the location

of the narcotics) they should have been

required to obtain a search warrant.

In Michigan v. Thomas, 458 U.S. 259

(1982), this Court again rejected the

argument that because a vehicle has been

immobilized and the occupants is in

custody the police are required to

obtain a search warrant for the con-

tents. The clear holding of the Court

applies to the present case:

"In Chambers v. Maroney, 339 US 42

(1970), we held that when police

officers 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 yv. White,

423 US 67 (1975). See also United

States v. Ross, 456 US 798, 807,

n. 9 (1982). It is thus clear

that the justification to conduct

such a warrantless search does not

16

vanish once the car has been im-

mobilized; nor does it depend 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." 458

U.S. at 261.

Since the facts of this case reveal

that there was probable cause tc believe

that the automobile contained narcotics,

United States v. Ross, supra, flatly

supports the validity of the search of

every part of the vehicle and its con-

tents including all containers and

packages. United States v. Ross, supra,

456 U.S. at 825. Therefore, the Okla-

homa court erred in ruling that the

officers should have obtained a search

Warrant prior to searching the luggage

in the trunk of the vehicle.

The Court of Criminal Appeals found

that the search of the Band-Aid box,

which had been thrown into the vehicle

by the Defendant Castleberry as_ the

officer approached with his badge, was

illegal and sheuid have been suppressed.

The Court stated that since the “sus-

pected locations of the contraband were

the suitcases and the Band-Aid box which

Castleberry threw in the car,” the

officers should have detained these

containers until a search warrant had

been obtained.” 678 P.2d at 724. AS

noted previously, the Court stated that,

under their interpretation of Ross,

Arkansas _v. Sanders, and United States

18

v. Chadwick, supra, if an officer has

probable cause to believe there is

contraband in a specific container in a

car, he must detain the container and

delay his search until a search warrant

is obtained. 678 P.2d at 724.

For the reasons stated in Proposi-

tion I, the State contends that the

holding of this Court in United States

v. Ross, supra, is in conflict with this

reasoning.

The search of the Band-Aid box

should also be upheld based on the

search incident to lawful arrest prin-

ciple of the Fourth Amendment. In New

York B n, supra, this Court upheld

the search of a jacket found in the

backseat of a vehicle belonging to a

defendant who along with his three com-

panions were in custody and outside the

19

vehicle at the time of the search. This

Court specifically held:

“[w)hen a policeman has made a

lawful custodial arrest of the

occupants of an automobile, he

may, aS a contemporaneous incident

of that arrest, search the pas-

senger compartment of that auto-

mobile.

"It follows from this conclusion

that the police may also examine

the contents of any containers

found within the passenger com-

partment, for if the passenger

compartment is within reach of the

arrestee, so also will containers

in it be within his reach." 453

U.S. at 460.

Therefore, the State contends that

the Defendants Castleberry and Raineri

who should not be able to immunize from

search a container containing contraband

by throwing such into a vehicle when the

police approach. The facts of this case

present no distinction between those in

Belton, supra. The evidence reveals

that the Defendant Castleberry was

Standing right next to the vehicle door

ss — -

20

when he threw the box inside. There-

fore, the area was obviously within his

control at the time of his arrest. Cf.,

New York v. Belton, supra, (coat found

in backseat of vehicle).

CONCLUSION

For the reasons stated, it is

respectfully requested that the Peti-

tioner's Petition for a Writ of Certi-

Orari be granted. |

Respectfully submitted,

MICHAEL C. TURPEN

ATTORNEY GENERAL OF OKLAHOMA

DAVID W. LEE

ASSISTANT ATTORNEY GENERAL

CHIEF, CRIMINAL AND FEDERAL

DIVISIONS

HUGH A. MANNING

ASSISTANT ATTORNEY GENERAL

112 State Capitol Building

Oklahoma City, OK 73105

(405) 521-3921

ATTORNEYS FOR PETITIONER

la

APPENDIX A

IN THE COURT OF CRIMINAL APPEALS

OF THE STATE OF OKLAHOMA

No. F-82-227

No. F-82-228

TIMOTHY R. CASTLEBERRY

and

NICHOLAS RAINERI,

Appellants,

Vv.

THE STATE OF OKLAHOMA,

Appellee.

[Filed January 23, 1984]

OPINION

BRETT, Judge:

Timothy R. Castleberry ard Nicholas

Raineri, appellants, were charged with

two (2) counts each of possession of a

Controlled Dangerous Substance with

Intent to Distribute in the District

Court of Oklahoma County, Case No.

CRF-81-2678. The jury found the appel-

lants guilty on both counts, and

2a

assessed punishment for Raineri at rine

(9) years’ imprisonment and a fine of

five thousand dollars ($5,000) for Count

l and seven (7) years’ imprisonment plus

a five thousand dollar ($5,000) fine for

Count 2, and, for Castleberry, ten (10)

years’ imprisonment plus a fine of five

thousand dollars ($5,000) for Count i

and seven (7) years’ imprisonment plus a

five thousand dollar ($5,000) fine for

Count 2. The trial court sentenced the

appellants accordingly, additionally

Ordering the sentences to run concur-

rently and suspending the fine for Count

zZ as to both appellants.

Appellant Castleberry was separately

convicted of Possession of a Controlled

Dangerous Substance, Cocaine, in Case

No. CRF-82-2676 in the Oklahoma County

District Court. The trial court sen-

tenced him to eight (8) years’ imprison-

3a

ment. The appeals from the judgments

and sentences are consolidated since the

same factual circumstances are involved

in each case.

At approximately noontime on June 9,

1981, Oklahoma City Police Officer R.D.

Taylor received a telephone call from a

previously unknown confidential inform-

ant who told him that two men, one named

Castleberry, were staying in Room 113 of

a motel in Oklahoma City, driving a blue

Thunderbird with Florida license plates

and carrying various narcotics in blue

suitcases. The informant also gave

physical descriptions of the men to the

officer.

Officer Taylor proceeded immediately

to the location, observed a vehicle

matching the informant's description in

front of the specified room, and dis-

covered, from the motel clerk, that a

4a

man named Castleberry was registered in

that room. He then returned to his car,

positioned some five parking spaces from

the other vehicle, and waited for

back-up assistance to arrive. After

several minutes, Officer Taylor observed

the appellants emerge from the room and

put several suitcases that matched the

informant's description into the trunk

of the car. At this point, Officer

Taylor announced himself as a police

officer, approached the car with his

badge in one hand and his weapon in the

other, and told the appellants to place

their hands on the car. Raineri did as

ordered, but Castleberry hastily closed

the trunk lid and threw a small white

object into the car. During a struggle

which ensued between Officer Taylor and

Castleberry, Castleberry reached up,

locked the car door and shut it.

Sa

At this point, Officer Citty arrived

and opened the trunk of the car with

keys Officer Taylor had removed from the

door of the car. The officers opened

the suitcases, found narcotics and

placed the appellants under arrest.

Officer Citty then searched the interior

of the car and discovered a white Band-

Aid box which contained a substance

later determined to be cocaine.

Appellants’ sole assignment of error

is that the trial court erred in over-

ruling their motion to suppress, thereby

admitting evidence obtained as a result

of an unlawful arrest, search and

seizure. The Fourth Amendment of our

federal constitution prohibits unreason-

able searches and seizures. Searches

conducted outside the judicial process,

without prior approval by judge or

Magistrate, are per se unreasonable

6a

under the Fourth Amendment, subject only

to a few specifically established and

well-delineated exceptions. Katz vy.

Unit States, 389 U.S. 347, 88 S.Ct.

507, 19 L.Ed.2d 576 (1967).

The exceptions are jealously and

carefully drawn, and there must be a

showing by those who seek exemption that

the exingencies of the situation made

that course imperative. Coolidge v. New

Hampshire, 403 U.S. 443, 91 S.Ct. 2022,

29 L.Ed.2d 564 (1971). Thus, it is

incumbent on the State to show why the

H Warrantless search of the car and its

contents was permissible in the case at

bar.

The State first contends that the

search was lawful as incident to a law-

ful arrest. Appellants challenge both

the legality of the arrest and the scope

of the search.

7a

Although Officer Taylor testified

that he did not arrest the appellants

until after the suitcases were opened,

the appellants were not free to move

after the officer advanced toward them

with revolver drawn and ordered them to

place their hands on the car. This

Court has held that when an officer

restrains the individual's freedom of

movement, that person is under arrest.

Wallace _v. State, 620 P.2d 410 (Okl.

Cr.1980), Castellano v. State, 585 P.2d

361 (Ok1.Cr.1978). Under the circum-

Stances, the appellants in the present

case were under arrest from the moment

Officer Taylor approached them and

announced his identity.

Appellants submit that the arrest

was unlawful because Officer Taylor did

not at that time have probable cause to

make it. The Oklahoma statutes allow a

—

8a

warrantless arrest if the officer has

reasonable cause to believe a felony has

been cc mitted by the person arrested.

22 0.S.1981, § 196. If at the time of

arrest the facts and circumstances

within the arresting officer's knowledge

and of which he had reasonably trust-

worthy information were sufficient to

warrant a prudent man in believing that

an offense had been or was being

committed, probable cause is established

and the arrest is lawful. Beck v. Ohio,

379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d

142 (1964), Greene v. State, 508 P.2d

1095 (Okl.Cr. 1973).

In this case, appellants argue that

the officer had no basis for judging his

informant to be reliable or the informa-

tion trustworthy. We disagree. In

Grimes v. State, 528 P.2d 1397 (Okl.Cr.

1974), this Court stated that an

EE A A ng

9a

informant's trustworthiness could be

established if independent facts within

the officer's knowledge corroborated the

information. Here, the information was

sufficiently corroborated as the only

detail not confirmed before the arrest

was the presence of narcotics in the

Suitcases, an allegation Officer Taylor

could not lawfully verify before the

arrest under the given circumstances.

The search made subsequent to the

arrest, however, cannot be justified as

a search incident to a lawful arrest,

for it far exceeded the permissible

bounds of such a search, that is, the

area within the arrestee's immediate

control from which he might gain posses-

sion of a weapon or destructible evi-

dence. s v fornia, 395

U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685

(1969). Both appellants were re-

10a

strained--one was handcuffed, the other

was on the ground with an officer

pointing a gun at him--at the time of

the search. The car doors and trunk

were locked, so once the officer gained

possession of the keys, there was no

danger of appellants’ procuring a weapon

Or destroying evidence from the interior

of the car. A search incident to the

arrest would therefore justify neither a

search of the locked car nor a search of

the suitcases therein.

The State's only other justification

offered is that the warrantless search

was lawful because the officers had

probable cause to believe that narcotics

were in the suitcases and exigent cir-

cumstances required prompt action. The

so-called automobile exception on which

the State relies was first recognized in

Carroll _v. United States, 267 U.S. 132,

lla

45 S.Ct. 280, 69 L.Ed. 543 (1925).

Cases subsequent to Carroll caused some

confusion about when containers in cars

may be searched, but the Supreme Court

Clarified the law in United States v.

Ross, 456 U.S. 798, 102 S.Ct. 2157, 72

L.Ed.2d 572 (1982).

If the officer has probable cause to

believe there is contraband somewhere in

the car, but he does not know exactly

where, he may search the entire car as

well as any containers found therein.

See United States v. Ross, 456 U.S. 798,

102 S.Ct. 2157, 72 L.Bd.2d 572 (1982);

Chambers v. Maroney, 399 U.S. 42, 90

S.Ct. 1975, 26 UL.Bd.2d 419 (1970);

Carroll _v. United States, 267 U.S. 132,

45 S.Ct. 280, 69 L.Ed. 543 (1925). If,

on the other hand, the officer only has

probable cause to believe there is

contraband in a specific container in

l2a

the car, he must detain the container

and delay his search until a search

warrant is obtained. See United States

vy. Ross, 456 U.S. 798, 102 S.Ct. 2157,

72 L.Bd.24 572 (1982); Arkansas vy.

Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61

L.Ed.2d 235 (1979); United States v.

Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53

L.Ed.2d 538 (1977).

The Ross court adopted Chief Justice

Burger's distinction set out in his

concurring opinion to Arkansas _v.

Sanders. 442 U.S. 753, 99 §.Cct. 2586, 61

L.Ed.2d 235 (1979), wherein he explained

that:

{[I}t was the luggage being trans-

ported by respondent at the time

of the arrest, not the automobile

in which it was being carried,

that was the suspected locus of

the contraband. The relationship

between the automobile and the

contraband was purely coinciden-

tal, as in Chadwick. The fact

that the suitcase was resting in

the trunk of the automobile at the

time of respondent's arrest does

l3a

not turn this into an ‘automobile'

exception case. The Court need

Say no more. (Citations omitted).

Id., at 766-767, 99 S.Ct. at 2594.

United States v. Ross, 456 U.S. at 813,

102 S.Ct. at 2166-67, 72 L.Ed.2d at

586-87.

The case at bar clearly falls within

the Chadwick-Sanders line of cases. The

suspected locations 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 con-

tainers until a search warrant had been

obtained.

We are not dealing with formal-

ities. The presence of a search

warrant serves a high function.

Absent some grave emergency, the

Fourth Amendment has interposed a

magistrate between the citizen and

the police. This was done not to

Shield criminals nor to make the

home a safe haven for illegal

activities. It was done so that

an objective mind might weigh the

l4a

need to invade that privacy in

Order to enforce the law. The

right of privacy was deemed too

precious to entrust to the discre-

tion of those whoe job is the

detection of crime and the arrest

of criminals. Power is a heady

thing; and history shows that th

epolice acting on their own cannot

be trstued. And so the Constitu-

tion requires a magistrate to pass

on the desires of the police

before they violate the privacy of

the home. We cannot be true to

that constitutional requirement

and excuse the absence of a search

warrant without a showing by those

who seek exemption from the

constitutional mandate that the

exigencies of the situation made

that course imperative.

McDonald v. United States, 335 U.S. 451,

445-456, 69 S.Ct. 191, 193, 93 L.Ed. 153

(1948).

For the reasons herein stated, the

judgments and sentences appealed from

Should be, and the same are hereby,

REVERSED.

CORNISH, J., specially concurs.

BUSSEY, P.J., Dissents.

15a

CORNISH, Judge, specially concur-

ring.

I fully concur in Judge Brett's

analysis and application of the Supreme

Court's precedents in this case. I

would simply note that it has been

settled in this State for several years

that probable cause will not support a

warrantless search in the absence of an

emergency, i.e., "exigent circum-

stances":

{I]t is without question that the

existence of probable cause alone

will not satisfy a warrantless

U.S. 42, 9 Ct. ’ L.Ed.2d

546 P.2d (Okl.Cr. .

Ordinarily, if an officer has

probable cause to make a search,

then he should go to a magistrate

for a warrant authorizing such a

search. Only when there are

‘exigent circumstances' in addi-

tion to the existence of probable

cause may an officer legitimately

make a search without a warrant.

Blackburn _v. State, 575 P.2d 638, 642

(Ok1.Cr.1978).

l6a

Absent probable cause to search the

entire car, the officers were only

authorized to seize the suspect con-

tainers and hold them pending issuance

of a search warrant. Although probable

cause existed with regard to the con-

tainers, no exigent circumstances were

shown such as to justify a warrantless

search.