Petitioners Brief — Oklahoma v. Castleberry

Supreme Court brief1984

Ask Donna

What actually matters in this document.

Text

No. soctaail

INTHE ~~~

we on

SUPREME COURT OF THE UNITED STATES ~~~ ~-

OCTOBER TERM, 1983

THE STATE OF OKLAHOMA

Petitioner,

Vv.

TIMOTHY R. CASTLEBERRY

and

NICHOLAS RAINERI

Respondents.

ON WRIT OF CERTIORARI TO THE

OKLAHOMA COURT OF CRIMINAL APPEALS

BRIEF OF PETITIONER

. 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, Oklahoma 73105

(405) 521-3921

ATTORNEYS FOR PETITIONER

*Counsel of Record

— @,

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 of-

ficer has probable cause to believe that

there is contraband in a specific contain-

er in a vehicle, and probable cause exists

to support a search of the entire vehicle,

he is required to obtain a search warrant

for the vehicle and the compartments and

containers therein.

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 a

vehicle, the police may search the con-

tainer as a search incident to arrest or

pursuant to the automobile exception rule.

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW...

OPINION BELOW. . . «© «© «© © © «© © «© «

JURISD ICTION s 7 e * oe * s eo o * * *

RELEVANT CONSTITUTIONAL

PROVISIONS e s s s oe eo o * . . * . @

STATEMENT OF THE CASE. .......

SUMMARY OF ARGUMENT. . . .« «© «© «© « «

ARGUMENT

PROPOSITION I

TH” SEARCH OF THE SUITCASES

IN THE TRUNK OF THE VEHICLE

WAS JUSTIFIED UNDER THE AUTO-

MOBILE EXCEPTION PRINCIPLE

BECAUSE A MAGISTRATE WOULD

HAVE BEEN JUSTIFIED IN ISSU-

ING A SEARCH WARRANT AUTHOR-

IZING THE SEARCH OF THE ENTIRE

VEHICLE SINCE PROBABLE CAUSE

WOULD SUPPORT THE BELIEF THAT

THE VEHICLE CONTAINED CONTRA-

BAND e @ @ s @ s e o s © s * s s

iii

TABLE OF CONTENTS

PROPOSITION II

THE SEARCH OF THE BAND-AID BOX

FOUND IN THE FRONT SEAT OF THE

VEHICLE WAS JUSTIFIED UNDER THE

AUTOMOBILE EXCEPTION PRINCIPLE

AND AS A SEARCH INCIDENT TO A

LAWFUL ARREST . . «© «© «© © «© « «@ 58

CONCLUSION . . * . ° ° ° * sd . . . ° 63

TABLE OF AUTHORITIES

Cases:

Arkansas v. Sanders, 442 U.S.

753 (1979). . . . « © «© © 11,12,13,15

22,23,35,36

49,50,54,59

Bivens v. Six Unknown Federal

Narcotics Agents, 403 U.S. 38

Tid71

). e s es e ® @ ° * . eo ® * 34

Carroll v. United States, 267

U.s. 132 (1925)... + « o21,24,53

castlepery v. Oklahoma, 678

P. Cr. . J @ & o 1

Chambers v. Maroney, 399

ewe e e e e e e 25,41,44,56

Colorado v. Bannister, 449

U.S. 1 (1980) oe @ eo e@ e@ _ e ee eo 23,24

cuRe v. Murphy, 412 U.S. 291

@ e@ e @ oo e @ o oe o @ eo @ 41

Davis v. Mississippi, 394

eo eo s @ ® @ _ @ eo @ 40

Delaware v. Prouse, 440 U.S.

Teuate @ e©eee0e80e¢e 36

Dunaway v. New York, 442 U.S.

ee...

Florida v. Meyers, 104 S.Ct.

st ¢- & & & & @& @& ©€@ 57

TABLE OF AUTHORITIES

Cases:

Illinois v. Gates, 103 S.Ct.

Be¢6@¢ee6& © @ She eeoateoae

Illinois v. Ltt aa 103

o t. eo o eo J >. o oe 40,47

I.N.S. V. popes enna 104

a t. 4). e e © e ° © 34

Kirby v. Illinois, 406 U.S.

Srv tt ee CA

jzenagen v. Thomas, 458

e eo @o J J @ oe e 7 oe 56

New York v. Belton, 453 U.S.

Oliver v. United States, 104

S.Ct. 1735 (1984) ......e. 48,61

Payton v. New York, 445 U.S.

). e ° © ° e e@ e e @ ° 37

Robbins v. California, 453

U.s. 420 (1981) 7 eo e J o oe oe — 38

Schmerber v. California, 384

U.s. 757 (1966) eo s @ °° © ° °° s 51

Segura v. United States, 104

Ste. 3380 (1984) . ....-s + 37,44

TABLE OF AUTHORITIES

Cases:

Page

South Dakota v. Opperman, 428

ewe 2. .6@ 7-8 -¢ . . 41,44

Spinelli v. United States,

>. > ) >. . >. >. . 28

Stone v. Powell, 428 U.S.

>. >. >. 7 > 7. > . >. _ 34

Texas v. Brown, 460 U.S.

. > >. > >. >. >. > -24,28,36

Texas v. White, 423 U.S.

>. >. >. . > > > >. >. >. 24,57

United States v. Calandra,

qi4 U.s. 330 (1974) >. >. >. . >. 34

United States v. Chadwick,

. . . . . . 11,13,15,22

23,36,49,50,59

United States v. Cortez,

>. >. > i . >. >. 28

United States v. Edwards, 415

0.s. 800 T1974) >. > > > >. * > 40

United States v. Jacobsen, 104

S.ct. 1652 T1964) . . . . -35,37,50

United States v. Janis, 428

0.s. 33 Tid76) _ >. >. > >. > >. 34

vii

TABLE OF AUTHORITIES

Page

Cases:

United States v. Johns, 707

F.2d 1093 (9th Cir. 1983)... 51

United States v. Leon, 104

S.ct. 3405 (1984) -_ © * -32,33,3°

United States v. Mendenhall,

_ >. 7. >. >. > > > 43

United States v. Nigro, 727

F.2d 100 (oth Cir. +584). eee 57

United States v. Place, 103

S.Ct. 2637 (1983) : = 2 ©@ ¢ -35,43,50

United States v. Robinson,

Se ) « «© « « «40,47,60

United States v. Ross, 456

U.S. 798 (1902)... . i,10,11,15,16

23,25,26,30,49

54,56,59,60

United States v. Sheposrs: 714

_ Ir. >. >. a. >. 52

United States v. Watson, 423

. . . . . . * . . . 39

Warden v. Hayden, 387 U.S.

> >. >. > >. >. . >. 7 >. >. 55

Welsh v. Wisconsin, 104

S.ct. 2091 (1584) - >. 7 > 7 >. 37

viii

TABLE OF AUTHORITIES

Statutes:

28 U.S.C

Federal

« § 125713) . « « «

State

Okla. Stat. Ann., tit. 63,

§ 2-401

Okla. Stat. Ann., tit. 63,

§ 2-402

Other Author-

ities Cited:

LaFave,

Search and Seizure,

§ 7.2 (Supp. 1984). - @ Be ©

No. 83-2126

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

THE STATE OF OKLAHOMA

Petitioner,

Vv.

TIMOTHY R. CASTLEBERRY

and

NICHOLAS RAINERI

Respondents.

BRIEF OF PETITIONER

OPINION BELOW

The decision of the Oklahoma Court of

Criminal Appeals from which the certiorari

is sought is reported as Castleberry v.

Oklahoma, 678 P.2d 720 (Okl.Cr. 1984).

This Opinion was filed on January 23,

1984, and the State of Oklahoma's (herein-

after referred to as “the State") Petition

for Rehearing was denied on April 5, 1984.

The Court's mandate was issued on April 11,

1984.

JURISDICTION

The jurisdiction of this Court is in-

voked pursuant to 28 U.S.C. § 1257(3).

RELEVANT CONSTITUTIONAL PROVISIONS

The Fourth Amendment to the Constitu-

tion of the United States provides:

"The right of the people to be

secure in their persons, houses,

papers, and effects, against unrea-

sonable searches and seizures, shall

not be violated, and no Warrants

shall issue, but upon probable

cause, supported by Oath or affir-

mation, and particularly describing

the place to be searched, and the

persons or things to be seized."

STATEMFNT OF THE CASE

Nicholas Raineri (hereinafter refer-

red to as the “Defendant Raineri"™) and

Timothy R. Castleberry (hereinafter refer-

red to as the “Defendant Castleberry"),

were both convicted after a jury trial on

two counts of Possession of a Controlled

Dangerous Substance With Intent to Distri-

bute, Okia. Stat. Ann., tit. 63, § 2-401

in the District Court of Oklahoma County,

State of Oklahoma. The Defendant Castle-

berry was also convicted in a subsequent

jury trial for the offense of Possession

of a Controlled Dangerous Substance, Okla.

Stat. Ann., tit. 63, § 2-402.

The Defendant Raineri was sentenced

to nine years imprisonment and a $5,000.00

fine on Count 1 and seven years imprison-

ment and a $5,000.00 suspended fine on

Count 2. The Defendant Castleberry was

sentenced to ten years imprisonment and a

$5,000.00 fine on Count 1 and seven years

imprisonment and a $5,000.00 suspended

fine on Count 2. The Defendant Castleber-

ry was sentenced to eight years imprison-

ment on the separate charge of Possession

of a Contcolled Dangerous Substance.

The two cases were consolidated on

appeal and the convictions of both Defen-

dants were reversed in a decision of the

Oklahoma Court of Criminal Appeals report-

ed at 678 P.2d 720 (Okl.Cr. 1984) (A. 27).

The facts presented at trial revealed

that at approximately noontime on June 9,

1981 (Tr. I, 6),> Officer R.D. Taylor of

the Oklahoma City Police Department, Nar-

cotics Division (Tr. I, 5), received a

telephone call from an informant, previ-

ously unknown to him but referred by a

fellow police officer (Tr. I, 18). The

informant advised him that the informant

had seen a large quantity of marijuana,

some cocaine, and white pills in Room i113

at the Southgate Inn, a motel located on

Interstate 35 in Oklahoma City. The

2 The following transcript designa-

tions will be used: Tr. I - Transcript of

proceedings held on September 1-2, 1981

(F-82-227) (trial of the Defendants Cast-

leberry and Raineri}; Tr. II - Transcript

of trial proceedings held on September

23-24, 1981 (F-82-228) (trial of the De-

fendant Castleberry).

informant told Taylor that he or she had

been in the room within the past ten hours

(Tr. I, 18). The 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 was also informed that they

were driving a 1980 or 1981 blue Thunder-

bird with Florida license plates (Tr. I,

6-7).

Officer Taylor immediately drove to

the location. He drove through the park-

ing lot and observed a blue 1980 or 1981

Thunderbird with Florida license plates

parked immediately in front of Room 113.

Taylor parked his vehicle approximately

five parking spaces away from the Thun-

derbird and went to see the desk clerk.

After advising her that he was a police

officer, he inquired as to who was staying

in Room 113 (Tr. I, 7). The desk clerk

stated that it was registered to a Tim

Castleberry, that he had paid only for the

previous night and that checkout time was

at 1:00 p.m. (Tr. I, 8). It was approxi-

mately 12:50 p.m. at this time (Tr. I,

18).

The officer returned to his car and

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

cal’ ad for assistance (Tr. I, 7). After

waiting five or ten minutes, Officer

Taylor observed the Defendant Castleberry

exit the motel room carrying a baby blue

leather suitcase (Tr. I, 8), and place it

in the trunk of the car. This suitcase

matched the description of one given by

the informant which the informant stated

contained some of the drugs (Tr. I, 6,8,

12,26).

Castleberry left the trunk open and

the 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 Cast-

leberry returned with another blue suit-

case, which he placed in the backseat of

his vehicie.

After inquiring about his backup, Of-

ficer Taylor approached the car while the

door and the trunk were still open (Tr. I,

9). Taylor testified that he could detect

the smell of marijuana coming from the

trunk (Tr. I, 11). All three men were

standing outside. He held his badge in

one hand and his service revolver in the

other, auvised 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 asked him

twice to place his hands on the car but

Castleberry refused to do so. Finally,

the Defendant Castleberry threw something

from behind his back into the car (Tr. I,

11). Officer Taylor then attempted to

physically force the Defendant Castleberry

to place his hands on the car, but even-

tually had to wrestle him to the ground.

While on the ground, the Defendant

Castleberry reached up, locked the car

door, and closed it. The car keys re-

mained in the car door.

At this time, with the situation

under control, Officer Taylor's partner,

Officer Bill Citty arrived. Officer Tay-

lor gave Officer Citty the car keys, told

him he had smelled marijuana coming from

the trunk, and asked him to open the

trunk. The Defendant Raineri was at the

passenger side of the car with his hands

on top, and the Defendant Castleberry was

laying on the ground with his head next to

the left rear tire (Tr. I, 21). Officer

Citty opened the trunk and also smelled "a

very strong odor” of marijuana (Tr. I,

26). Officer Citty opened the plaid suit-

cases and found that they were filled with

marijuana (Tr. I, 12,26). Officer Taylor

then advised the men that they were under

arrest (Tr. I, 12,26).

Taylor then told cCitty that’ the

informant had told him that “there was a

large amount of powder" in the blue suit-

case and that he wanted Citty to check it

(Tr. I, 26). Officer Citty then broke

open the blue leather suitcase and found

that it contained a large sum of cash and

a clear plastic baggy containing approxi-

mately ten ounces of white powder (Tr. I,

12,27). The powder was later determined

to be methaquaalone powder (Tr. I, 37).

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, 14,5960).

This white powder was later determined to

be cocaine (Tr. II, 68).

SUMMARY OF ARGUMENT

In the present case, it the facts

known to Officer Taylor when he approached

the Defendants had been presented to a

magistrate, a search warrant based upon

probable cause would have been issued for

the search of the automobile. Therefore,

under the principles of United States v.

Ross, 456 U.S. 798 (1982), all containers

and compartments in the vehicle could have

been searched withous a search warrant

pursuant to the “automobile exception”

rule. This search would include the

luggage in the trunk and the Band-Aid box

an the passenger compartment.

The fact that the officers knew of

the specific location of some of the pnar-

cotis should not mean that they wer: re-

quired to obtain a search warrant for the

containers or compartments concealing

such. A rule such as this would inject a

great amount of uncertainty into what is

at the present time a workable, straight-

forward rule regarding searches of automo-

biles.

The present case differs from that in

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

and United States v. Chadwick, 433 9.S. 1

(1977) in that in those cases the only

potential location of the narcotics was

the suitcase and footlocker, and not a

vehicle which might have been transporting

such. In Arkansas v. Sanders, supra,

there was no reason to believe that the

taxicab which was carrying the suitcase

was a possible repository for naarcotics

and therefore, the fact that the suitcase

was merely resting in the automobile

taxicab did not give rise to the “automo-

bile exception" justification for the

search.

In the present case, however, there

was probable cause to believe that drugs

had been moved from the motel room where

they had been seen by an informant to the

vehicle parked outside the motel room.

The fact that information provided by the

informant was that he or she had seen

"some" of the drugs in a suitcase (imply-

ing that the rest of the drugs were in

other places in the room), that the Defen-

dants' were in the process of loading

their automobile at check-out time, that

the automobile had Florida licenses plates

on it, that the Defendants wee staying at

a motel located on a major interstate

highway, that the Defendant Castleberry

threw an object into the car when ap-

proached by Officer Taylor and subsequent-

ly locked the car, is part of the evidence

which supports the view that the vehicle,

as a whole, was the “suspected locus" of

the object of the search. The relation-

ship between the objection of the search

and the vehicle in Sanders and Chadwick

was purely coincidental. Here, the rela-

tionship between the vehicle and the

object of the search is apparent.

The additional intrusions into the

contents of the luggage and the Band-Aid

box were minimal when viewed in the con-

text of the right of the police to arrest

and search the person and effects of the

Defendants and impound and search their

vehicle. The interests of the public in

clear rules and efficiency in the alloca-

tion of police resources are also consid-

erations when determining whether a search

warrant should have been obtained in the

present case.

ARCUMENT

PROPOSITION I

THE SEARCH OF THE SUITCASES IN THE

TRUNK OF THE VEHICLE WAS JUSTIFIED

UNDER THE AUTOMOBILE EXCEPTION PRIW-

CIPLE BECAUSE A MAGISTRATE WOULD

HAVE BEEN JUSTIFIED IN ISSUING A

SEARCH WARRANT AUTHORIZING THE

SEARCH OF THE ENTIRE VEHICLE SINCE

PROBABLE CAUSE WOULD SUPPORT THE

BELIEF THAT THE VEHICLE CONTAINED

CONTRABAND .

The Oklahoma Court of Criminal Ap-

peals held that the officers illegally

searched the suitcases found in the trunk

of the vehicle, finding that the search

fell within the dictates of Arkansas v.

Sanders, 442 U.S. 753 (1979) and United

States v. Chadwick, 433 U.S. 1 (1977),

rather than those of United States v.

Ross, 456 U.S. 798 (1982). One of the

pertinent parts 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 some-

where in the car, but he does not

know exactly where, he may search

the entire car as well as any con-

tainers found therein. [Citations

omitted] . . . If, on the other

hand, the officer has 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 war-

rant is obtained.” 678 P.2d at 724;

A. 34.

The Court held that since the suit-

cases and the Band-Aid box were the “sus-

pected locations” of the contraband,

"[t)he officer should have detained the

containers until a search warrant had been

obtained." 678 P.2d at 724; A. 36.

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, a vehicle may be

searched without a warrant and "(t]he

scope of a warrantless search based on

probable cause is no narrower--and no

broader--than the scope of the search

authorized by a warrant supported by pro-

bable cause." 456 U.S. at 823.

The facts of the present case are

such that a magistrate would have issued a

search warrant for the search of the

Defendants' entire vehicle. Officer

Taylor had been advised that a man named

Tim Castleberry and another man named Nick

were in possession of a large quantity of

marijuana, some cocaine and “some other

white pills" (Tr. I, 6). The informant

had been in the room within the past ten

hours (Tr. I, 18). Officer Taylor was

given a physical description of the Defen-

dants, the motel and room number where

they were staying, and of the suitcase

that “some of the narcotics [were] in"

(Tr. I, 6). The informant also told him

that the Defendants were driving a late

model 1980 or 1981 blue Thunderbird with

Florida tags (Tr. I, 5-6).

The information was fully corrobcrat-

ed when Officer Taylor arrived at the

motel. When he drove through the parking

lot he observed a blue 1980 or 1981 Thun-

derbird with Florida license plates parked

“immediately” in front of the room speci-

fied by the informant (Tr. I, 7). The

motel clerk confirmed that the room re-

ferred to by the informant was registered

to a Tim Castleberry (Tr. I, 7-8).

After returning to his car and wait-

ing appropriately five or ten ninutes,

Taylor observed Defendant Castleberry

leave the motel room carrying a blue suit-

case which matched the description of the

suitcase that the informant had stated

contained “some” of the narcotics (Tr. I,

6,6,12,26). Castleberry placed this

suitcase in the trunk of the Thunderbird.

The Defendant Raineri loaded two plaid

suitcases into the trunk and Castleberry

returned with another blue suitcase, which

he placed in the backseat of the car

(Tr. I,9).

Officer Taylor had also been advised

by the motel clerk that the Defendant

Castleberry had paid for only one night

and that check-out time was 1:00 p.m.

Taylor arrived at the motel at approxi-

mately 12:50 p.m. (Tr. I, 18).

Armed with this information, Officer

Taylor approached the Defendants with his

gun drawn and his badge displayed, advis-

ing them that he was a police officer and

to put their hands on the car (Tr. I, 10).

As he approached the trunk he could detect

the odor of marijuana (Tr. I, 11). The

Defendant Raineri complied with this

command, but Castleberry, after closing

the trunk, placed his hands behind his

back and ignored two requests from Taylor

to take his hands from behind his back and

place them on the car (Tr. I, 11). Cas-

tleberry then threw an object into the car

(Tr. I, 11). Officer Taylor then atteapt-

ed to force Castleberry to place his hands

on the car, and in the process had to

wrestle him to the ground. Castleberry

then reached up, locked the car door and

closed it (Tr. I, 11).

The State submits that, based upon

this information, a magistrate would have

found probable cause to believe that the

vehicle contained contraband and would

have been justified in issuing a search

warrant allowing the police to search the

entire car.

The evidence points to the fact that

the vehicle was a repository for narco-

tics. Officer Taylor observed the car

being loaded with luggage when he arrived.

Check out time was at hand. The informant

had seen various types of drugs in Room

113, including marijuana, cocaine and what

were described as “white pills" (Tr. I,

6). At least one of the suitcases matched

the description of one which contained

"some" of the drugs (Tr. I, 6,8,12,26).

Other facts known to Officer Taylor

axe also important. Defendant Castleberry

threw an object into the car when ap-

proached by a law enforcement officer.

The car was parked at a motel located on a

major interstate highway and was display-

2 All of this

ing Florida license plates.

would lead a reasonable person to conclude

that drugs were being removed from the

motel room to the car. Certainly a magi-

strate would find that, at the very least,

probable cause existed to believe that

narcotics were being “concealed" in the

vehicle. Carroll v. United States, 267

U.S. 132, 153 (1925).

It is significant that the informant

had advised Officer Taylor that “sonme" of

the narcotics had been in a blue suitcase.

— ilinois v. Cates, 103 s.ct.

2317, 2334 { preme Court stated

that the fact that the defendants’ automo-

bile traveled from Florida to Illinois

supported the belief that it contained

drugs, noting that “Florida is well-known

as a source of narcotics and other illegal

drugs."

Therefore, this case is distinguishable

from the situations in Arkansas v. San-

ders, 442 U.S. 753 (1979) and United

States v. Chadwick, 433 U.S. 1 (1977),

where the information indicated that all

of the contraband was in one container.

In the present case, contraband could have

been concealed in any of the suitcases,

the object thrown into the car, or any

other containers or compartments in the

vehicle where drugs could have been placed

after their removal from the motel room.

It is also important to remember that

Officer Taylor testified that he detected

the odor of marijuana coming from the

trunk as he walked up to the vehicle,

which means that marijuana could have been

stored in any compartment or container in

the trunk.

As previously noted, the Oklahoma

Court of Criminal Appeals based their

holding on the reasoning that if officers

know specifically in what container con-

traband may be located, a search warrant

must be issued before the container is

searched. The State believes that this

was an incorrect and narrow reading of

United States v. Ross, supra, Arkansas v.

Sanders, supra, and United States v. Chad-

wick, supra, and is inconsistent with

other Supreme Court cases dealing with the

automobile exception as well.

In Ross the police were told by the

informant the specific location where the

drugs were located, i.e., the trunk. 456

U.S. at 800. Despite that fact, this

Court did not require that the police ob-

tain a search warrant for the trunk.

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

(1980) the police obviously knew of the

exact location of items which they

seized, lug nuts and lug wrenches, since

the police observed those items in plain

view in the glove compartment and on the

floorboard of the back seat. This Court

held that the Colorado Supreme Court was

incorrect in holding that a search warrant

should have been obtained, applying the

automobile exception principles of Car-

roll. See also Texas v. Brown, 460 U.S.

730 (1983) where facts similar to Ban-

nister existed although the warrantless

seizure and subsequent search was upheld

under the plain view doctrine.

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

the police knew of the location of the

items they were seeking since a bank em-

ployee observed the defendant “stuff some-

thing" between the seats of his automo-

bile. Nothing in the Court's opinion sug-

gested that the police should have ob-

tained a search warrant for the location

where the suspected fruits or instrumen-

talities of the crime were hidden.

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

(1970) this Court upheld the warrantless

search of a glove found in an automobile

even though they presumably may have known

that the glove contained change taken dur-

ing a robbery since one of the robbers had

directed the victim to place coins in the

glove. Obviously, the Court did not hold

that the police should have obtained a

search warrant for the glove.

The clear holding of United States Vv.

Ross, supra, is that "[i)f probable cause

justifies the search of a lawfully stopped

vehicle, it justified the search of every

part of the vehicle and its contents that

may conceal the object of the search."

456 U.S. at 825. If the police have an

idea that certain compartments or con-

\iners conceal items they are searching

for (in this case the blue suitcase) they

should not be required to obtain a search

warrant for an automobile if probable

cause exists to believe that contraband

may be hidden in other parts of the auto-

mobile. In Ross, the Court stated that

"[a] warrant to support a search of the

vehicle would support a search of every

part of the vehicle that might contain the

object of the search." 456 U.S. at 821.

It is the State's view that Officers

Taylor and Citty had probable cause to

believe that contraband could be concealed

in the automobile generally and that the

"automobile exception" rule should apply

in the present case. The fact that the

informant had not been used by Officer

Taylor previously (although the informant

had been referred to him by another police

officer) is merely a factor to be weighed

in the “totality of circumstances." See

Illinois v. Gates, supra, where an anony-

mous letter was sufficiently corroborated

by other police information. In the

present case, the State has previously

mentioned the observations of Officer

Taylor which corroborated the informant's

information, as well as the fact that the

vehicle possessed Florida tags and was

parked at a motel located on Interstate

Highway 35.

Furthermore, the refusal of Castle-

berry to cooperate with the officer's

commands, (which were issued with the

assistance of a drawn gun), followed by

Castleberry's disposing and locking up of

an object he was hiding behind his back,

surely reflect a consciousness of guilt.

In a concurring opinion in Illinois v.

Gates, supra, Justice White stated that

"the proper focus should be on whether the

actions of the suspects, whatever their

motive, give rise to an inference that the

informant is credible and obtained his

information in a credible manner." 103

S.Ct. at 2348. Justice White also noted

in his concurring opinion in Spinelli v.

United States, 393 U.S. 410, 427 (1969):

"Because an informant is right about

some things, he is more probably

right about other facts."

In Texas v. Brown, supra, the Supreme

Court observed that "probable cause is a

flexible, common-sense standard" and that

"it does not cemand any showing that such

a belief be correct or more likely true

than false.” 460 U.S. at 742. It was

further noted that "[a] ‘practical, non-

technical’ probability that incriminating

evidence is involved is all that is re-

quired.’ Brinegar v. United States, 338

U.S. 160, 176 (1949)." The Court then

quoted from United States v. Cortez, 449

U.S. 411, 448 (1981), as follows:

"The process does not deal with hard

certainties, but with probabilities.

Long before the law of probabilities

was articulated as such, practical

people formulated certain common-

sense conclusions about human behav-

ior; jurors as factfinders are per-

mitted to do the same-and so are law

enforcement officers. Finally, the

evidence thus collected must be seen

and weighed not in terms of library

analysis by scholars, but as under-

stood by those versed in the field

of law enforcement."

In Illinois v. Gates, supra, it was

stated:

"As these comments illustrate, pro-

bable cause is a fluid concept--

turning on the assessment of proba-

bilities in particular factual

contexts-not readily, or even use-

fully, reduced to a neat set of

legal rules. Informants' tips

doubtless come in many shapes and

sizes from many different types of

persons. .. . ‘Informants' tips,

like all other clues and evidence

coming to a policeman on the scene

may vary greatly in their value and

reliability." Rigid legal rules are

ill-suited to an area of such diver-

sity. ‘One simple rule will not

cover every situation.'" (Citation

omitted). 103 S.Ct. at 2328-2329.

A rule that would require police to

obtain a warrant when they knew of the

locality of the object in an automobile

would cause mugh confusion in an area

which the Court in Ross referred to as

"this troubled area." 456 U.S. at 817.

Instead of the straight-forward rule of

Ross, which looks to the overall existence

of probable cause to search a vehicle and

its compartments and containers, endless

litigation over whether the officer knew

cf the location of the contraband or

fruits or instrumentalities of a crime

would be inevitable.

This Court has repeatedly stressed

the need for rules that are clear and are

therefore, easy to apply uniformly.

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

803-804. In New York v. Belton, 453 U.S.

454 (1981) the Supreme Court quoted Duna-

way v. New York, 442 U.S. 200, 213-214

(1979) as follows:

""fa) single, familiar standard is

essential to guide police officers,

who have only limited time and ex-

pertise to reflect on and balance

the social and individual interests

involved in the specific circun-

stances they confront.'" 453 U.S.

at 458.

The need for straightforward and predic-

table rules is in the interest of both the

police and the citizens who may be sub-

jected to police activity. New York v.

Belton, supra, 453 U.S. at 459-460.

Further evidence of the inappropri-

ateness of a rule permitting an automobile

container or compartment search depending

upon whether the officer knew the specific

location within the automobile of the ob-

ject of the search is the fact that it

holds the potential for a police officer

to be able to broaden his or her authority

to make warrantless searches by revealing

less than all of their probable cause in-

formation. See LaFave, Search and Sei-

zure, § 7.2, p. 200 (Supp. 1984).

The exclusionary rule already has

several built-in aspects that are in

opposition to a system of crjminal justice

supposediy based upon a search for truth

in the assigning of guilt or innocence:

(1) the suppression of evidence that is

directly relevant to the guilt of the

person accused of an offense against

society; (2) the fact that police who lie

with regard to where evidence was found

are rewarded with the admission of the

evidence whereas those officers whc tell

the truth are punished by the suppression

of the evidence and possibly the release

of the criminal; and (3) the award of

freedom to a criminal based upon conduct

3 In United States v. Leon, 104 S.

Ct. 3405, 3409 (1984) the Court noted that

there existed a tension between the exclu-

Ssionary rule and procedures “under which

criminal defendants are ‘acquitted or con-

victed on the basis of all of the evidence

which exposes the truth.‘'"

of an officer and not upon the free will

decision of an individual to commit or not

to commit the crime, in other words, the

separation of the relationship between

choice, and responsibility for’ that

choice.

If the reasoning of the Court of

Criminal Appeals is upheld, therefore,

another mechanism at odds with the search

for the truth would exist, as an officer

who withholds facts which give him know-

ledge of the exact location of the object

of the search would be rewarded by being

allowed \ to search the entire vehicle

without search warrant whereas full dis-

closure of his knowledge would mean that

he would be required to take the time and

trouble to acquire one. |

The disadvantages of the exclusionary

rule generally have been thoroughly dis-

cussed by this Court. United States v.

Leon, 104 S.Ct. 3405, 3412-3416 (1984);

Stone v. Powell, 428 U.S. 465 (1976);

Bivens v. Six Unknown Federal Narcotics

Agents, 403 U.S. 388, 412-421 (1971). (Bur-

ger, C.J. dissenting). The applicability

of the rule varies with the interests of

the individual in a particular type of

case and the interests of the public.

(1984); United States v. Janis, 428 U.S.

433 (1976); Stone v. Powell, supra; United

States v. Calandra, 414 U.S. 338 (1974).

Whether the exclusionary sanction is

appropriately imposed in a particular case

generally “must be resolved by weighing the

costs and benefits of preventing the use

in the prosecutor's case-in-chief of

inherently trustworthy tangible evidence

pure oe” United States v. Leon, supra,

104 S.Ct. at 3412. Exceptions to the gen-

eral rule requiring search warrants exist

because the Court has found that "societal

costs of obtaining a warrant ... out-

weigh the reasons for prior recourse to a

neutral magistrate." Arkansas v. Sanders,

supra, 442 U.S. at 759.

In United States v. Place, 103 S.Ct.

2637, 2642 (1983) the Court stated that it

was necessary to “balance the nature and

quality of the intrusion on the individu-

al's Fourth Amendment interests against

the importance of the governmental inter-

ests alleged to justify the intrusion." In

United States v. Jacobsen, 104 S.Ct. 1652,

1661 (1984) the Supreme Court found that

the “additional intrusion" occasioned by a

field test of cocaine after a container

had previously been opened by private

persons did not violate the Fourth Amend-

ment.

The Court has held that there is a

"“dimmished expectation of privacy” when

one places his or her personal effects

into an automobile. United States v.

Chadwick, 433 U.S. 1, 12 (1977). For

example, the "configuation, use and regu-

lation of automobile often may dilute the

reasonable expectation of privacy that

exists with respect to differently situ-

ated property." Arkansas v. Sanders,

supra, 442 U.S. at 761.

Furthermore, when a person leaves the

privacy of his or her home and transports

items of personal property in an automo-

bile, constitutional protections cannot be

expected to be the same. One who travels

in an automobile is subject to being

stopped for an infinite number of reasons.

Delaware v. Prouse, 440 U.S. 648 (1979);

Texas v. Brown, supra, 460 U.S. at 733.

Additionally, activities undertaken in an

automobile are not generally private in

nature. As was observed in Segura v.

United States, 104 S.Ct. 3380, 3389

(1984):

"But the home is sacred in Fourth

Amendment terms not primarily be-

cause of the occupants ' possessory

interests in the premises, but be-

cause of their privacy interests in

the acitivities within." (Emphasis

original).

While the Fourth Amendment is obvi-

ously designed to protect against in-

fringements upon personal freedom in the

form of both invasions into expectations

of privacy and interference with property

interests, see United States v. Jacobsen,

104 §.Ct. 1652, 1656 (1984), the balancing

of these interests against the requirement

that a police officer be required to ob-

tain a search warrant from a magistrate

‘ Cf. Welsh v. Wisconsin, 104 S.Ct.

2091, 2094 (1984) and Payton v. New York,

445 U.S. 573, 578 (1980) where police in-

vasions of residences intruded upon indi-

viduals while they were in personal cir-

cumstances.

prior to searching containers located in

an automibile demands that the entire cir-

cumstances of a particular case be exam-

ined. Obviously, administrative consid-

erations are relevant to this determina-

tion. In Robbins v. California, 453 U.S.

420, 433-434 (1981). Justice Powell ob-

served in his concurring opinion:

"Confronted with a cigarbox or a

Dixie cup in the course of a proba-

ble-cause search of an automobile

for narcotics, the conscientious

policeman would be required to take

the object to a magistrate, fill out

the appropriate forms, await the de-

cision, and finally obtain the war-

rant. Suspects or vehicles normally

will be detained while the warrant

is sought. This process may take

hours, removing the officer from his

normal police duties. Expenditure

of such time and effort, drawn from

the public's limited resources for

detecting or preventing crimes, is

justified when it protects an indi-

vidual's reasonable privacy § in-

terests. In my view, the plurali-~

ty's requirement cannot be so just-

ified. The aggregate burden of pro-

curing warrants whenever an officer

has probable cause to search the

most trivial container may be heavy

and will not be compensated by the

advancement of important Fourth

Amendment values."

The State contends that in the pre-

sent case, the additional intrusion into

the Defendants’ privacy interests caused

by the immediate search of the luggage

found in the automobile is outweighed by

the need for clear rules governing search-

es of automobiles and the freedom from the

practical inconvenience necessitated by

the warrant procedure every time justifi-

cation exists for the search of a contain-

er or compartment in a vehicle.

This is particularly true in light of

the restraints and invasions an individual

who is driving an automobi-e is subjected

to when there is probable cause to believe

that a container or compartment within

such is concealing contraband or the

fruits or instrumentalities of a crime.

That person can be immediately and public-

ly arrested without a warrant. He can

S United States v. Watson, 423 U.S.

411 (1976).

then be handcuffed, placed in a police

car, and taken to the police station. He

can then be mugged, fingerprinted, ° and

booked. He can be subjected to a complete

search of his person’ and any personal

effects carried with him can be fully

searched, examined and inventoried. His

clothing can be taken from him, searched,

and kept in “official custody."” In

appropriate cases, his fingernails can be

(1969).

7 United States v. Robinson, 414

U.S. 218 (1978).

8 Illinois v. Lafayette, 103 S.Ct.

2605 (1983).

Davis v. Mississippi, 394 U.S. 721

United States v. Edwards, 415 U.S.

800 (1974).

10 11

his blood can be taken

scraped, and he

can be placed in a lineup.

With regard to his automobile, the

entire passenger compartment can 0be

13 and the car can be seized,

searched

towed-in, and impounded, If undertaken

pursuant to standard police procedure, the

entire automobile and its contents can be

searched and inventoried.*>

10 Cupp v. Murphy, 412 U.S. 291

(1973).

11 Schmerber v. California, 384 U.S.

757 (1966).

12 Kirby v. Illinois, 406 U.S. 682

(1972).

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

(1981).

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

51 (1970).

South Dakota v. Opperman, 428 U.

S. 364 (1976).

Therefore, in this context, the

"additional intrusion" into an indivi-

dual's privacy and property interests is

outweighed by the previously mentioned

public interests-clear search and seizure

guidelines for the protection of the

police and public alike, the efficient use

of police resources which would be diluted

by the requirement of a search warrant,

and the compelling reasons why a criminal

proceeding should be allowed to receive

evidence directly related to the truth.

At this point a defendant's privacy inter-

ests are minimal and the only function of

the warrant requirement is to remove

police from their crime prevention and

detection responsibilities and to provide

defense attorneys with a tool to thwart

the admission of evidence constituting the

most conclusive proof of the defendant's

guilt.

Furthermore, it has previously point-

ed out that "[t]he public has a compelling

interest in detecting those who would

— in deadly drugs for _ personal

profit." United States v. Mendenhall, 446

U.S. 544, 561 (1980) (Powell, J., concur-

ring). In United States v. Place, supra,

104 S.Ct. at 2643, the Court stated that

it would weigh the "strong governmental

interest" in preventing the flow of narco-

tics into distribution channels “against

the nature and extent of the intrusion

upon the individual's Fourth Amendment

sights. . . .*

Additionally, if the police are al-

lowed to make an immediate search of the

containers in a vehicle, the guilt or

innocence of the person under suspicion is

quickly determined. Instead of being sub-

jected to an arrest and the attendant in-

dignities pending the obtaining of a

search wafrant, a suspect whose baggage is

searched on the scene and found not to

possess objects of the search can be imme-

diately released, his effects promptly

returned, and the impoundment of his

automobile avoidea.®

Further evidence of the gamesmanship

inherent in juggling the various theories

used to justify a search of an automobile

is that, in the present case, if Officers

Taylor and Citty had merely termed their

search an “inventory” search, it presuma-

bly could have been upheld on this basis

if undertaken pursuant to an established

police policy. South Dakota v. Opperman,

supra. It is difficult to imagine how

privacy interests in the contents of the

16 In Segura v. United States,

supra, 104 S.Ct. at 3387, the Court noted

that in Chambers v. Maroney, supra, “it

was reasonable to seize and impound an

automobile, on the basis of probable

cause, for ‘whatever period is necessary

to obtrain a warrant for the search.'"

luggage can be viewed as being important

if they are dependent solely upon the

particular label selected by the police

which defines their state of mind at the

start of the search. Additionally, scen-

arios which have results dependent upon

semantics such as this cannot help but

increase public and police cynicism toward

the entire process and undermine respect

for the law, which is supposedly based

upon reason.

The State contends that the mix of

do's and don'ts confronting Officer Taylor

places him and other officers, whose

primary justification for existence is to

protect the rest of us from physical harn,

in an unfairly complex position. Officer

Taylor found himself confronted by two

suspected and unknown drug distributors at

a moment when both had been caught in

possession of a quantity of drugs which

would send them to prison for many years.

One of the suspects refused to remove his

hands from behind his back after repeated

commands. The suspect made aéie sudden

movement to throw an object into the car.

Officer Taylor had to forceably wrestled

him to the ground while worrying about the

other suspect, who had his hands on the

car. During the struggle, Officer Taylor,

who was still waiting for his backup to

arrive, was bitten by the Defendant's dog

(Tr. I, 8).

When Officer Citty arrived they tken

had to make an instant decision concerning

principles which judges, scholars and law-

yers have debated for decades. The offi-

cers had to decide whether to make a

search, and what name to assign to that

search. Are they to make an “inventory

search," a “search incident to arrest," an

"automobile exception search,” a “plain

view search" or an “exigent circumstances

search"? These decisions had to be made

immediately after Officer Taylor had been

confronted with a situation in which great

danger could have been involved.

This case, therefore, presents facts

which support the statements of this Court

mentioned previously which reject the

step-by-step analysis concerning search

and seizure rules, and which are under-

standable by the police and the public.

In Illinois v. Lafayette, 103 S.Ct.

2605 (1983) the Court drew from its opin-

ion in United States v. Robinson, 414 U.S.

218, 235 (1974) and reiterated:

""A police officer's determination

as to how and where to search the

person of a suspect whom he has ar-

rested is necessarily a quick ad hoc

judgment which the Fourth Amendment

does not require to be broken down

in each instance into an analysis of

each step in the search.'"* 103 S.

Ct. at 2609.

In Oliver v. United States, 104 S&S.

Ct. 1735 (1984) the Court refused to apply

the open fields doctrine on a case-by-case

basis, stating:

"Nor would a case-by-case approach

provide a workable accommodation be-

tween the needs of law enforcement

and the interests protected by the

Fourth Amendment. Under this ap-

proach police officers would have to

guess before every search whether

landowners had erected fences suffi-

ciently high, posted a sufficient

number of warning signs, or located

contraband in an area sufficiently

secluded to establish a right of

privacy. The lawfulness of a search

would turn on ‘[a] highly sophisti-

cated set of rules, qualified by all

sorts of ifs, ands, and buts and re-

quiring the drawing of subtle

nuances and hairline distinctions .

- « «* New York v. Belton, 453 U.S.

454, 458, 101 S.Ct. 2860, 2863, 69

L.Ed.2d 768 (1981) (quoting LaFave,

"Case-By-Case Adjudication" versus

"Standardized Procedure": The

Robinson Dilemma, 1974 S&.Ct.Rev.

127, 142. This Court repeatedly has

acknowledged the difficulties crea-

ted for courts, police and citizens

by an ad hoc, case-by-case defini-

tion of Fourth Amendment standards

to be applied in differing factual

circumstances. See Belton, supra,

at 458-460, 101 S.Ct., at 2863- ;

Robbins v. California, 453 U.S. 420,

430, 101 S.Ct. 2841, 2847, 69 L.Ed.

24 744 (1981) (POWELL, J., concur-

ring); Dunaway v. New York, 442 U.S.

200, 213-214, 99 S.Ct. 2248, 2257-

2258, 60 L.Ed.2d 824 (1979); United

States v. Robinson, 414 U.S. ’

’ Ct. , 476, 38 L.Ed.2d

427 (1973). The ad hoc approach not

only makes it difficult for the

policeman to discern the scope of

his authority, Belton, supra, 453

U.S., at 460, 101 B.Cte, at 4; it

also creates a danger that constitu-

tional rights will be arbitrarily

and inequitably enforced." 104 S.

Ct. 1742-1743.

The State also contends that, as

stated previously, the search of the

luggage was justified since probable cause

existed to search the Defendants’ entire

automobile.

In United States v. Ross, supra, 456

U.S. at 814, this Court observed that "in

neither Chadwick or Sanders did the police

have probable cause to search the vehicle

or anything within it except the footlock-

er in the former case and the green suit-

case in the later." It is settled that

while law enforcement officers may some-

times seize containers and packages, even

with less than probable cause, United

States v. Place, Supra, 103 S.Ct. at 2641,

"the mere existence of probable cause to

believe that a container Or package con-

tains contraband plainly cannot justify a

warrantless examination of its contents,"

United States v. Jacobsen, supra, 104

S.Ct. at 1665 (White, J., concurring).

However, this case and other similar

cases differ from Arkansas v. Sanders,

supra, and United States v. Chadwick,

Supra, in that in the latter cases pro-

bable cause did not exist to support the

belief that evidence relevant to the

criminal offense in guestion could have

been in any location other than inside of

the footlocker in Chadwick and the suit-

case in Sanders. In Sanders there was no

reason to believe that the taxicab in

which the defendant was riding contained

any contraband. The suitcase was the only

possible location of any contraband.

In United States v. Johns, 707 F.2d

1093, 1097-1098 (9th Cir. 1983) the Ninth

Circuit rejected the defendants’ conten-

tion that a search warrant should have

been obtained for the search of containers

in two trunks which were seized, although

the search was held to be invalid due to a

three day delay in opening the containers.

The Court stated:

"The officers had probable cause to

search both vehicles, not just the

new-discovered bales. Their suspi-

cions did not focus solely on the

packages; it was not obvious that

all the contraband would be in the

bales. The appellees could have

easily secrete other drugs elsewhere

in the vehicles.

In United States v. Chadwick, 433

U.S. 1, 97 S.Ct. 2476, 53 L.Ed.24a

538 (1977), the police officers had

all the facts giving them probable

cause to believe that contraband was

in the footlocker and the suitcases

before those containers were placed

in the trunks of the cars. Placing

the containers in the car did not

give the officers probable cause to

search the entire vehicle. In Ross

and in this case, the officers’

suspicions were not so specific.

They did not know the exact nature

and packaging of the contraband

transferred from the airplanes to

the trucks before arriving on the

scene. The officers had probable

cause to search both trucks. Under

Ross, they also could have opened

e packages as part of that search.

In United States v. Shepherd, 714

F.2d 316 (4th Cir. 1983) a case with facts

similar to those in the present one, the

Fourth Circuit upheld the warrantless

opening of jugs of moonshine removed from

the trunk of a parked automobile. The

Court noted:

"We believe that the case before us

is more akin to Ross than to Chad-

wick and Sanders. Here the object

of the agents’ search was not direc-

ted solely to the interior of a few

jugs which were seen loaded into

the trunk of Shepherd's car. The

agents .ad good reason to suspect,

based on the inrormation they had

gathered as well as what they had

seen with their own eyes, that the

car was an instrumentality of Shep-

herd's illegal whiskey enterprise,

and that a search of the vehicle

would disclose additional evidence.

As it turned out, this hypothesis

proved correct: upon opening the

trunk the agents found thirty-eight

gallons of illegal liquor, far more

than they had observed from their

hiding place. Under Ross, once the

officers had probable cause to

search the vehicle, they also ac-

quired the authority to open any of

the closed containers found there-

in." 714 F.2d at 323.

In the present case, the entire

automobile could have been a hideaway for

drugs. Drugs could have been placed in

the glove compartment under the seat, in

the dashboard, over the sunvisor, in the

upholstery, in the trunk, under the hub-

caps or in the ashtrays. As stated pre-

viously, the mere fact that the police

knew of the location of “some” of the

durgs should not have prevented an intense

police search of the entire automobile

without a warrant. In Carroll v. United

States, supra, the police were allowed to

tear open the seat cushion in the search

for contraband.

Here the entire car was the “suspect-

ed locus" of possible contraband and the

relationship between the automobile and

the contraband was obviously more than

"purely coincidental." Arkansas v. San-

ders, supra, 442 U.S. at 767 (Burger, C.

J., concurring in the judgment). Since a

magistrate would have issued a search war-

rant for the entire vehicle, “every part

of the vehicle and its contents that may

conceal the subject of the search" could

be searched. United States v. Ross,

supra, 456 U.S. at 825.

A hypothetical may illustrate a sit-

uation in which police should be allowed

to search an entire vehicle even though

they know of the location of some of the

objects of the search. Assume a robber

wearing a mask forced a bank teller at

gunpoint to place money in a suitcase.

The bank's employees observe the robber

run outside and place the suitcase in the

trunk. After driving a few blocks the

robber is stopped by the police and they

remove the suitcase from the trunk. The

robber does not have either the gun or the

mask. Should not the police be allowed to

search the suitcase and all containers and

compartments in the car without a warrant?

Ever though the “suspected locus" of the

ok ct of part of the search is the suit-

case, other parts of the vehicle may

contain other of evidentiary items, such

as the gun or the ski mask. Warden v.

Hayden, 387 U.S. 294 (1967). Also, it is

possible the robber could have stopped be-

tween the time he robbed the bank and the

time he was stopped and removed some of

the money from the suitcase. The critical

point is that since the entire vehicle may

be a repository for fruits or instru-

mentalities, pursuant to the dictates of

Ross, the police should be allowed to

search the entire vehicle, and its com-

partments and containers, including the

luggage. The facts of Chambers v. Maron-

ey, supra, provide a similar scenario and

demand a similar holding.

The fact that the automobile was not

moving in the present case is irrelevant.

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 are in cus-

tody the police are required to obtain a

search warrant for the contents. The

holding of the Court should apply to the

present cae:

"In Chambers v. Mar , 339 US 42

(1976), we held that when police

officers have probable cause to be-

lieve 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 re-

iterated this holding in Texas v.

White, 423 US 67 (1975). See also

United States v. Ross, 456 US 798,

» Re S - it is thus clear

that the justification to conduct

such a warrantless search does not

valish once the car has been immo-

bilized; nor does it depend upon a

reviewing court's assessment of the

liklihood 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.

See also Florida v. Meyers, 104 S.Ct. 1852

(1984); Texas v. White, supra, 423 U.S. 67

(1975); and United States v. Nigro, 727

F.2d 100, 104-107 (6th Cir. 1984).

For the reasons stated, the State

submits that all evidence found in the

Defendants’ automobile was obtained as a

result of a constitutionally permissible

search since there was probable cause to

believe that contraband drugs could have

been concealed in various parts of the

automobile and a magistrate would have

issued a search warrant for the entire

vehicle,

PROPOSITION II

THE SEARCH OF THE BAND-AID BOX FOUND

IN THE FRONT SEAT OF THE VEHICLE WAS

JUSTIFIED UNDER THE AUTOMOBILE ExX-

CEPTION PRINCIPLE AND AS A SEARCH

INCIDENT TO A LAWFUL ARREST.

The Oklahoma Court of Criminal Ap-

peals 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 the evidence found in that

container should also have been suppres-

sed. The Court stated that since the

"suspected locations of the contraband

were the suitcases and the Band-Aid box

which Castleberry threw in the car" the

officers “should have detained these con-

tainers until a search warrant had been

obtained.” 678 P.2d at 724; A.35-37. As

noted previously, the Court stated that,

under their interpretation of Ross,

Arkansas v. Sanders, and United States v.

Chadwick, supra, if an officer has proba-

ble cause to believe there is contraband

in a specific container in a car, he must

detain the container and delay his search

until a warrant is obtained. 678 P.2d at

724.

For the reasons stated in Proposition

I, the State contends that the holding of

this Court in United States v. Ross,

supra, is in conflict with this reasoning

under the automobile exception principle.

If the luggage in the trunk was validly

searched under this rule, then certainly

there was probable cause to search other

containers in the automobile, particularly

after drugs were discovered in the suit-

cases. The Court in Ross specifically

held that the rule allowing the search of

the automobile applied “equally to all

cortainers.” 456 U.S. a. 822. The facts

of the present case support the search of

the Band-Aid box, which was thrown into

the vehicle as the police approached.

The fact that Castleberry was able to

lock the car after he had thrown the box

inside shculd make no difference with

regard to the legality of the search. In

Ross, the detective, after arresting and

handcuffing the defendant, took the de-

fendant's keys and opened the trunk where

the sack containing the contraband was

found. 456 U.S. at 801.

Furthermore, under the principles of

United States v. Robinson, supra, 414 U.S.

218, since Officer Taylor had probable

cause to arrest Castleberry, he could have

searched the box as incident to the cust-

odial arrest. The fact that Castleberry

was able to throw the box into the car

after the officer approached him should

not prevent the seizure and search of the

box. In Oliver v. United States, supra,

ES States

104 S. Ct. 1735, 1743, this Court rejected

the contention that the defendants’ ac-

tions in erecting fences and signs “in

order to conceal their criminal activity,"

should provide a right to an expectation

of privacy in the premises, stating that:

"The test is not whether the indi-

vidual chooses to conceal assertedly

‘private’ activity. Rather, the

correct inquiry is whether the gov-

ernment’'s intrusion infringes upon

the personal and societal values

protected by the Pourth Amendment."

Therefore, the State contends that

the action of the Defendant Castleberry in

throwing the Band-Aid box into he car when

the police approached should not serve to

immunize it from a justified search.

This search of the interior of the

automobile, including the Band-Aid box,

should also be upheld based on the search

incident to lawful arrest principle of the

Fourth Amendment. In New York v. Belton,

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 companions, were in custody and

outside the vehicle at the time of the

search. This Court specifically held:

"(w)hen a policeman has made a law-

ful custodial arrest of the occu-

pants of an automobile, he may, as a

contemporaneous incident o that

arrest, search the possenger com-

partment of that automobile.

It follows from this conclusion that

the police may also examine the con-

tents of any containers found within

the passenger compartment, 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.

The facts of this case parallel those

in Belton, supra. The evidence reveals

that Defendant Castleberry was standing

next to the vehicle door when he threw the

box inside. Therefore, the area was ob-

viously within his control at the time of

his arrest. Cf., New York v. Belton,

supra, (coat found in backseat of vehi-

cle).

CONCLUSION

For the reasons stated, it is re-

spectfully requested that this Court re-

verse the judgment of the Oklahoma Court

of Criminal Appeals in this case.

Respectfully submitted,

MICHAEL C. TURPEN

ATTORNEY CENERAL OF OKLAHOMA

DAVID W. LEE

ASSISTANT ATTORNEY CENERAL

CHIEF, CRIMINAL AND FEDERAL

DIVISIONS

HUGH A. MANNING

ASSISTANT ATTORNEY CENERAL

112 State Capitol Building

Oklahoma City, OK 73105

(405) 521-3921

COUNSEL FOR PETITIONER

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.