# Opposition Brief — Oklahoma v. Castleberry > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0794%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1984 - **Citation:** 469 U.S. 979 ## Text Y No. 83-2126 ALEXANDER L. STEVAS, In The Supreme Court of the United States October Term, 1983 — ' Vv THE STATE OF OKLAHOMA, Petitioner, vs. TIMOTHY R. CASTLEBERRY, and NICHOLAS RAINERI, Respondents. — — BRIEF IN OPPOSITION TO PETITION FOR A WRIT OF CERTIORARI TO THE OKLAHOMA COURT OF CRIMINAL APPEALS — — C. Kent Expres” Cuartes Foster Cox Attorneys at Law 500 NW 13th Street Oklahoma City, OK 73103 (405) 235-7507 Attorneys for Respondent *Counsel of Record COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 333 QUESTIONS PRESENTED 1. Whether, under the Fourth Amendment, and the dictates of United States v Ross, 456 U.S. 798 (1982), a warrant is required to search a specific container in a ve- hicle, when the police have probable cause to believe the container secre’: contraband but no probable cause to believe the vehicle itself contains contraband. 2. Whether the police may search a locked vehicle, parked on a private parking lot, and the containers found inside, as an incident to the lawful arrest of a person standing next to the vehicle but not a recent occupant of said vehicle. ii TABLE OF CONTENTS Pages QUESTIONS PRESENTED FOR REVIEW .......... i STATEMENT OF THE CASE 2 REASONS FOR DENYING THE WRIT: I. THE OPINION OF THE OKLAHOMA COURT IL. IiT. OF CRIMINAL APPEALS IS JUST, AND CORRECTLY RULED THAT THE WAR- RANTLESS SEARCH OF THE LOCKED SUITCASES IN THE TRUNK OF THE VE- HICLE WAS NOT JUSTIFIED UNDER THE AUTOMOBILE EXCEPTION TO THE WAR- RANT REQUIREMENT OF THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION. 3 THE SEARCH OF THE BAND-AID BOX CANNOT BE JUSTIFIED AS COMING UN- DER THE AUTOMOBILE EXCEPTION TO THE GENERAL WARRANT REQUIREMENT OF THE FOURTH AMENDMENT, NOR AS A SEARCH INCIDENT TO A LAWFUL AR- REST. 7 THE OKLAHOMA COURT OF CRIMINAL APPEALS OPINION IS NOT IN CONFLICT WITH ANY DECISIONS OF THE UNITED STATES SUPREME COURT, AND REVIEW OF SAID OPINION IS UNWARRANTED. 12 CONCLUSION —__._... . 13 TABLE OF AUTHORITIES CaSEs : Arkansas v Sanders, 442 U.S. 753 (1979) .....3, 5, 13 Carroll v United States, 267 U.S. 132 (1925)...3, 4, 6, 13 Chambers v Maroney, 399 U.S. 42 (1970) 6, 13 Chimel v California, 395 U.S. 762 (1969) —...8, 10, 13 iii TABLE OF AUTHORITIES—Continued Pages Colorado v Bannister, 449 U.S. 1 (1980) 6 Katz v United States, 389 U.S. 347 (1967) 7 Michigan v Thomas, 458 U.S. 259 (1982) ......... 6,13 New York v Belton, 453 U.S. 454 (1981) 6, 11, 13 Texas v White, 423 U.S. 67 (1975) ...... aa United States v Chadwick, 433 U.S. 1 (1977) ......... 3,13 United States v Frick, 490 U.S. 666 (1973) —..... 10 United States v Ross, 456 U.S. 798 (1982) .....3, 4, 5, 6, 13 Wolf v Colorado, 338 U.S. 25 (1949) 7 No. 83-2126 Ly Vw In The Supreme Court of the United States October Term, 1983 Ly Vw THE STATE OF OKLAHOMA, Petitioner, vs. TIMOTHY R. CASTLEBERRY, and NICHOLAS RAINERI, Respondents. —_— a BRIEF IN OPPOSITION TO PETITION FOR A WRIT OF CERTIORARI TO THE OKLAHOMA COURT OF CRIMINAL APPEALS — ‘ — Respondents Timothy R. Castleberry and Nicholas Raineri hereby submit the following Brief in Opposition to the Petition for a Writ of Certiorari to the Oklahoma Court of Criminal Appeals filed by Petitioner State of Oklahoma. 2 STATEMENT OF THE CASE Although the statement of the case in the Petition con- tains an essentially accurete review of the facts of the ease, the Respondents would supplement that statement with several important facts that were not mentioned. Respondents would refer to the transcripts of the two trials in the same manner as the Petitioner. The transcript of proceedings held on September 1-2, 1981, wherein both re- spondents were tried for possession of contraband found in the suitcases (F-82-227) will be referred to as Tr. lL, and the transcript of proceedings held on September 23-24, 1981, wherein respondent Castleberry was tried for pos- session of contraband found in the band-aid box (F-82- 228) will be referred to as Tr. II. The arresting officer admitted that he had the situa- tion “under control” at the time back-up officers arrived. (Tr. I, 20). The officer also admitted that at the time of the search of the trunk, both respondents were not close to the trunk and were either on the ground or at the front of the vehicle with their hands upon it. (Tr. I, 21). He further admitted that at the time of the search neither respondents had access to the keys to the vehicle (Tr. I, 21) and at the time of the search he felt no personal jeopardy from the respondents. (Tr. I, 23). The officer further testified that at the time of the searches, neither respond- ent had any opportunity to get into the car themselves so as to reach a weapon or destroy evidence. (Tr. IT, 52). 3 REASONS FOR DENYING THE WRIT I. The Opinion Of The Oklahoma Court Of Criminal Appeals Is Just, And Correctly Ruled That The Warrantless Search Of The Locked Suitcases In The Trunk Of The Vehicle Was Not Justified Under The “Automobile Exception” To The Warrant Requirement Of The Fourth Amend- ment To The United States Constitution. The Oklahoma Court of Criminal Appeals correctly held that the mere fact that the suitcases in question had been placed in the trunk of a vehicle did not turn this into an “automobile exception” case. It must be remembered that this vehicle was not stopped upon the roadway, but was, instead, parked at all times in a parking lot of a motel and was never mobile; that the vehicle was never occupied by either of the respondents; that the arresting officers had no probable cause to believe that the vehicle itself contained anything illegal, and had such probable cause only as to suitcases; and that the State of Okla- homa failed to prove that there was any “exigency” which required such prompt action as to render a warrant un- necessary. Contrary to the contention of the Petitioner, the opin- ion of the Oklahoma Court of Criminal Appeals is entirely consistent with the reasoning pronounced in United States v Ross, 456 U.S. 798 (1982). In Ross, the Supreme Court undertook a careful examination of the “automobile ex- ception”, from its initial recognition in Carroll v United States, 267 U.S. 132 (1925), thru its inapplicability in United States v Chadwick, 433 U.S. 1 (1977) and Arkansas v Sanders, 422 U.S. 753 (1979). Through its opinion in Ross, the Supreme Court sought to clarify some of the confusion surrounding the warrantless search of contain- ers found in automobiles. The Court held that police offi- cers who have legitimately stopped an automobile and who have probable cause to believe that contraband is con- ‘eealed somewhere within it, may conduct a warrantless search of the vehicle that is as thorough as a magistrate could authorize by warrant, including the warrantless search of any container found in said vehicle. (emphasis added). The “automobile exception” established in Car- roll, supra, applies when the police have probable cause to believe the vehicle itself contains contraband, but do not know where within the vehicle it is located. The “auto- mobile exception” does not apply, however, to allow the warrantless search of any movable container that is be- lieved to contain contraband and is found in a public place, even if that container is placed in a vehicle, provided that the vehicle is not otherwise believed to be carrying con- traband. Thus, the scope of the warrantless search is not defined by the nature of the container in which the con- traband is hidden, but rather by the object of the search and places in which there is probable cause to believe that it may be found. Applying the rationale of Ross, supra, to the case at bar, since the police had probable cause to believe that contraband was contained in suitcases, and having no probable cause to believe that contraband was contained elsewhere in the vehicle, the “automobile exception” would not operate to allow the warrantless search of the suit- eases because the Respondents had a legitimate expecta- tion of privacy in the closed container protected by the Fourth Amendment to the United States Constitution. It was the suitcases that the police had probable cause to search, and not the vehicle itself. The Oklahoma Court of Criminal Appeals quoted Chief Justice Burger’s distinction set out in his concurring opinion in Arkansas v Sanders, adopted by the Ross court, wherein he stated that: It was the luggage being transported 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 coincidental, as in Chadwick. The fact that the suitease was resting in the trunk of the automobile at the time of respond- ent’s arrest does not turn this into an ‘automobile’ exception case. The Court need say no more. (Cita- tions omitted). IJd., 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. Thns, it is urged that the Oklahoma Court of Crim- inal Appeals was correct in its application of the prin- ciples of Ross, supra, to the case at bar, and correctly stated the law when it stated: “If the officer has probable cause to believe that 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 omit- ted)... . If, on the other hend, the officer has only probable cause to believe there is contraband in a specific container in the car, he must obtain the con- tainer and delay his search until a search warrant is obtained.” 678 P.2d at 724 The Petitioner would also argue that there is no sig- nificant difference between the facts in Ross and the facts 6 in the case at bar. It is respectively urged that there are several major differences between the facts of the two cases. In Ross, the police had probable cause to be- lieve that the auto contained contraband, and that same was located in the trunk. (Emphasis added). In the case at bar, the police had probable cause to believe that the suitcases contained contraband, and had no probable cause as to the vehicle itself. In addition, in Ross the police were dealing with a mobile vehicle on the roadway, and beeause of that mobility, an “exigency” existed which rendered the securing of a warrant impractical. In the present case, the vehicle was never mobile, was never on the roadway, and was never occupied. As the vehicle was in the complete control of the police from the moment of Respondent’s arrests, the rationale behind the “automobile exception”—that of exigent circumstances, never existed. There was no compelling reason why the police could not first secure a warrant. As probable cause alone will never satisfy a warrantless search absent the existence of “ex- igent circumstances”, the warrantless search of the suit- eases and the interior of the locked vehicle must neces- sarily fail. Chamb rs v Maroney, 399 U.S. 42 (1970). The Petition further urges that the opinion by the Oklahoma Court of Criminal Appeals is in conflict not only with United States v Ross, supra, but is also in con- flict with Colorado v Bannister, 449 U.S. 1 (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), New York v Belton, 453 U.S. 454 (1981) and Michi- gan v. Thomas, 458 U.S. 259 (1982). It need only be point- ed out, however, that each of the above cases dealt with a legitimate “automobile exception” case where police pe Es = - were conducting a warrantless search of a vehicle based upon probable cause accompanied by the requisite emer- gency or “exigent circumstances” as to render the pro- curing of a warrant impractical. All of the cases cited involved searches of mobile vehicles upon the roadway which were occupied immediately prior to the search, and where the police were conducting a search of the entire vehicle. In none of the above cases did the police have probable cause to believe that contraband was contained within a specific container located within the vehicle, as in the case at bar. Thus, it is urged that there is no con- flict with the cited cases, as each involved a different fac- tual situation than present in the case before the Court. In conclusion, therefore, it is respectfully urged that the “automobile exception” to the general warrant require- ment of the Fourth Amendment to the United States Con- stitution does not justify the search of the suitcases. Il. The Search Of The Band-Aid Box Cannot Be Justified As Coming Under The ‘‘Automobile Exception” To The General Warrant Require- ment Of The Fourth Amendiaent, Nor As A Search Incident To A Lawful Arrest. It is a cardinal principle that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment. . . subject only to a few specifically established and well-delineated exceptions”. Katz v United States, 389 U.S. 347 (1967). It is also settled that the fundamental purpose of the Fourth Amendment is to safe- guard individuals from unreasonable government invas- ions of legitimate privacy interests, “and not simply those interests found inside the four walls of the home”. Wolf v Colorado, 338 U.S. 25, 27 (1949). Thus, the safeguards embodied in the warrant requirement of the Fourth Amendment apply as forcefully to automobile searches as to any others. While the United States Supreme Court has recognized certain narrow exceptions to the warrant requirement for certain automobile searches, the “search incident to a lawful arrest” and the “automobile excep- tion”, the Court has upheld only those searches that were actually justified by the reasons for those exceptions. The first judicially recognized exception to the war- rant requirement for automobiles was set out in Chimel v California, 395 U.S. 752 (1965), wherein the Supreme Court approved a warrantless search “incident to a lawful arrest”. According to Chimel, supra, the area that can be lawfully searched is limited to that area “within the arrestee’s immediate control”, from which the arrestee “might gain possession of a weapon or destructable evi- dence”. Such an area might also be defined as that area within the arrestee’s “grabbing distance”. To determine if the search at bar was lawful as incident to a lawful ar- rest, one must assume that the arrest itself was lawful, and then proceed to apply the facts at bar to two separate in- quiries : At the very moment of the search: 1) What places would it be possible for the arrestee to presently reach? In determining what places the arrestee could pos- sibly reach, one must look at several considerations. Was the arrestee restrained to an extent that would prohibit him from reaching the area subsequently 7) searched? In the case at bar, both arrestees were re- strained at the time of the search of both the suit- eases and the interior of the locked automobile. Both were either handcuffed or on the ground with officers holding weapons on them; both the trunk and the in- terior of the auto were locked, with the police having possession of the keys; the police were positioned be- tween the arrestees and the automobile; gaining access to the containers searched was virtually impossible because they were inside the locked vehicle and some were locked themselves; and the police had total con- trol of the area to be searched to the exclusion of the arrestees. It is thus submitted that the items searched, the band-aid box locked in the interior and the suit- eases locked inside the trunk, were not in areas that the arrestees had any possibility of presently reach- ing at the time of the search, and thus not within the immediate control of the arrestees. Having made that first inquiry, we must look at the facts at bar to determine: 2) How probable is it that the arrestees would un- dertake to seek means of resistance or destroy evt- dence? In the case at bar, the police had no prior information that the arrestees were armed or dangerous, and the crime for which they were arrested did not involve weapons. In addition, the nature and type of evidence inside the containers searched does not lend itself to ready destructability. It would be very unlikely that the arrestees could destroy a large amount of various drugs locked inside a car while watched over by armed officers, particularly when handcuffed and ly- 10 ing on the ground. In addition, the arrestees made no furtive gestures which would indicate any inten- tion of reaching for weapons or destroying evidence. To the contrary, the movements of the arrestee in closing the trunk and locking the door would operate to make any such attempt even more unlikely. Having made these two inquiries, it can be seen that the arrestees would have to have been “possessed of the skill of Houdini and the strength of Hercules” for the areas searched to be considered within their immediate con- trol, and thus justify a warrantless search as incident to a lawful arrest. United States v Frick, 490 F.2d 666 (5th Cir. 1973). It is respectfully submitted that the Respond- ents were not so possessed at the time of the searches and that any attempt to justify the warrantless searches on the basis of the Chimel exception must fail. The Okla- homa Court of Criminal Appeals, it is urged, was correct in stating: “The search made subsequent to the arrest, however, cannot be justified as a search incident to a lawful ar- rest, 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 destructable evidence. (Citation omitted) Both appellants were restrained,—one was handcuffed, the other was on the ground with an offi- cer pointing a gun at him—at the time of the search. The car doors and trunk were locked, so once the offi- cer gained possession of the keys, there was no danger of appellants’ procuring a weapon or destroying evi- dence 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 there- in.” 678 P.2d at 723. 11 The Petitioner argues that the Oklahoma Court of Criminal Appeals’ opinion is in conflict with New York v Belton, 453 U.S. 454 (1981). However, a close examina- tion of the facts in both cases reveals that the cases are not similar. In Belton, the automobile was stopped on the roadway for speeding, and the arrestee was an occupant of the vehicle. The vehicle in Belton was not locked and was mobile. As the Court stated in Belton: “when a policeman has made a lawful custodial arrest of the occupants of an automobile, he may, as a con- temporaneous incident of that arrest, search the pas- senger compartment of that automobile. It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment, for if the passenger com- partment is within reach of the arrestee, so also will containers in it be within his reach.” 453 U.S. at 460. In the ease at bar, however, the automobile was never mobile, as it was locked and parked in a private parking lot. The arrestees were not “recent occupants” of the ve- hicle, and, as distinguished from Pelton, the passenger compartment, as well as the containers therein, were not within the reach of the arrestees at the time of the arrest and search. Thus, the search of the band-aid box located in the interior of the locked vehicle, to which the arrestees had no keys, cannot be justified as an “incident to a lawful arrest”. The Petitioner also advances the proposition that the search of the band-aid box can be justified as coming with- in the “automobile exception” to the general warrant re- quirement of the Fourth Amendment to the United States Constitution. As stated earlier, the “automobile excep- 12 tion” has been recognized as authorizing warrantless searches of vehicles under certain, narrowly defined cir- eumstances, but it is urged that the facts of the case at bar do not justify the search of the band-aid box under the “automobile exception”. As discussed in the previous section dealing with the search of the suitcases, the placing of the band-aid box in the vehicle does not, in itself, make this an “automobile exception” case. Again, the police had no probable cause to search the vehicle itself, nor any probable cause to search the band- aid box, as their probable cause information concerned it- self only with suiteases. In addition, the rationale behind the “automobile exception” requires that the vehicle be mobile on the roadway, not parked and locked, and re- quires the presence of some emergency or “exigency” which makes the securing of a warrant impractical under the circumstances. In the case at bar, there was no show- ing of any “exigent circumstances”, and if any probable cause existed to search, it ran to the band-aid box itself and not to a warrantless search of the vehicle. It is urged, therefore, that this is simply not an “automobile excep- tion” case, and that said exception will not justify the warrantless search of the locked interior of the automobile, nor the band-aid box found therein. III. The Oklahoma Court Of Criminal Appeals Opin- ion Is Not In Conflict With Any Decisions Of The United States Supreme Court, And Review Of Said Opinion Is Unwarranted. The opinion of the Oklahoma Court of Criminal Ap- peals in the case at bar is entirely consistent with the United States Supreme Court’s decisions in United States —— - 13 v Ross, 456 U.S. 798 (1982), Arkansas v Sanders, 442 U.S. 753 (1979), United States v Chadwick, 433 U.S. 1 (1977), Carroll v United States, 267 U.S. 132 (1925), as well as Michigan v Thomas, 458 U.S. 259 (1982), New York v Belton, 453 U.S. 454 (1981), Chambers v Maroney, 399 U.S. 42 (1970), and Chimel v. California, 395 U.S. 762 (1969), and no compelling justification exists to alter the prevailing law as set forth in those decisions. ray ww CONCLUSION The Petition for a writ of certiorari should be denied. Respectfully submitted, C. Kent Evprivce* CuarLes Foster Cox 500 NW 13th Street Oklahoma City, OK 73103 (405) 235-7507 Attorneys for Respondents *Counsel of Record --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0794%3A03. Public record. Not legal advice.