Opposition Brief — California v. Greenwood

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ORIGINAL

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1986

r Term »\

No. 86-684

THE STATE OF CALIFORNIA,

Petitioner,

Vv.

BILL GREENWOOD and DYANNE VAN HOUTEN,

Respondents.

On writ of Certiorari to the

Court of Appeal of California

Fourth Appellate District, Division Trree

RESPONDENT'S BRIEF IN OPPOSITION

MICHAEL IAN GAREY

Attorney at Law

611 Civic Center Drive west

Penthouse Suite, 4tn Floor

Santa Ana, California 92701

(714) 834-1950

Attorney for Responcent

Bill Greenwood

yu

.

QUESTIONS PRESENTED

l.

1S A FEDERAL QUESTION SQUARELY PRESENTED.

i.

TABLE OF CONTENTS

QUESTIONS PRESENTED... 2. 2 2 ee eee ee eee eee ene

TABLE OF THORITIES . . 2. 2 2 ee ee ee ee ee ee ewes

STATEMEN, . TWE CASE. 2 2 we ee eee eee ee eee ees

STATEMENT OF FACTS . 0 2 2 ee eee eee ee eee ee eee

REASONS WHY THE PETITION SHOULD BE DENIED... ~~ e+ ee ees

l.

A FEDERAL QUESTION IS NOT SQUARELY PRESENTED.

tii.

TABLE OF AUTHORITIES

UNITED STATES CONSTITUTION

Fourth

ee ae ee ee a ee ee

Bolen v. State (Tenn. 1976) 544 S.W.2¢ 916, 920... ++ +++

In re Lance, W. (1985) 37 Cal.3¢ 673, 884... - ++ eee es

Mason v. United States 719 F.2d 1485, (10th Cir. 1963) ....--.

Miller

Oliver

People

v. ites States ~ U.S. 310, 305, 2 L.fd.2¢ 1332,

8

v. United States ew 466 U.S. 170, 177-176

. S V0 S.Ct. 1735) 2. - 2 ee ee ee ee

vy. Krivda (1973) 8 Cal.3¢ 623, 624. . ~~ eee ee eee

Peonle

vy. Krivda (1971) 5 Cal.3¢ 357 2. 2 2 2 ee ee ee es

State v. Tanaka (Haw. 1985) 701 P.2¢ > Pee ee

United

States v. Jarabek 726 F.2d 889, 900 (Ist Cir. 1984)...

United

States v. Manfredi, 488 F.2¢ 586, 596 (2nd Cir. 1973) . .

United

States v. McNolty 729 F.2¢ 1243, 1281 (10th Cir. 1963) . .

Urited

States v. Mitchell, 763 F.20 971, 973-976 (10th Cir.

1963)

United

, he eee eo Sh ES OSM ASSO SS So ee

States v. Rickos 737 F.2d 360 (3ra Cie. 0B8) . cw co we

Unitec

States v. Watson 423 U.S. 411, 620 fr. 8, 46 L.E¢.2s

. < Pe ee ee

Respondent, Bill Greendwood, respectfully requests this Court deny

the Petition for Certiorari, seeking review of tne decision of the Court

of Appeal of California, Fourth Appellate District, Division Three ir

this matter, decided June 23, 1984. The opinion is reported at 1&2

Cal .App.3d 729.

STATEMENT OF THE CASE

Respondent Greenwood adopts Petitioner's Statement of the Case. (See

Petition for Writ of Certiorari, pp. 2-3.)

STATEMENT OF FACTS

Respondent Greenwood adopts the facts contained in the Opinion of

the Court of Appeals.

«feo

REASONS WHY THE PETITION SHOULD BE DENIED.

l.

A FEDERAL OUESTION IS NOT SQUARELY PRESENTED.

The question of whether or not a warrantless search of trash

recepticles left at curbside for collection mandates suppression of

evidence under the Fourth Amendment would appear to turn on the question

of whether or not the citizen has a reasonable expectation of privacy in

the contents. As wil) be noted, infra, in the peculiar text herein

involved, that issue must itself be determined almost wholly as a matter

of state )aw.

The exclusionary rule of the Fourth Amendment is held to apply in

those instances wherein there has been a violation of a constitutionally

protected reasonable expectation of privacy. As this Court recently

observed in Oliver v. United States (1984) 466 U.S. 170, 177-178 [80

L.£¢.2¢ 214, 223, 104 S.Ct. 1735):

This interpretation of the Fourth Amendment's

lanauage is consistent with the understanding of the

riant to privacy expressed in our Fourth Amendment

jurisprudence. Since Katz v. United States, 389

U.S. 347, 19 L.Ed.2d 576, 88 S.Ct. 507 (1967), the

touchstone of Amendment analysis has been the

question whether a person has a “constitutionally

protected reasonable expectation of privacy." Id., at

360, 19 L.Ed.2¢ 576, 88 S.Ct. 507 (Harlan, J.,

concurring). The Amendment doe: not protect the

merely subjective expectation of privacy, but only

those “expectation[s] that society is prepared to

recognize as ‘reasonable.'" Id., at 361, 19

L.£d.2¢ 576, 88 S.Ct. 507. See also Smith v.

Maryland, 442 U.S. 735, 740-741, 61 L.Ed.2d 220, 99

$.Ct. 2577 (1979).

7 . *

No single factor determines whether an

individual legitimately may claim under the Fourth

Amendment that a place should be free of government

intrusion not authorized by warrant. See Rakas v.

Illinois, 439 U.S. 128, 152-153, 58 L.Ed.20 387, 99

§.Ct. 421.

(1978) (Powell, J., concurring).

There is substantial precedent that in determining the validity of an

arrest or search, Fourth Amendment analysis requires reference to state

law.

o2-

Thus, a’though in part commanded by act of Congress, this Court

noted in the case of U.S. v. Di Re, 332 U.S. 581, 589 [68 S.Ct. 222, 226,

92 L.Ed. 210 (1948):

We believe, however, that in absence of an

applicable federal statute the law of the state where

an arrest without warrant takes place determines its

validity. By one of the earliest acts of Conoress,

the principle of which is still retained, the arrest

by judicial process for a federal offense must be

“agreeably to the usual mode of process against

offenders in such state." There is no reason to

believe that state law is not an equally appropriate

standard by which to test arrests without warrant,

except those cases where Congress has enacted a

federal rule. Indeed the enactment of a federal rule

in some specific cases seems to imply the absence of

any aeneral federal law of arrest.

(In accord, Miller v. Unites States 357 U.S. 310, 305, 2 L.Ed.20 1332,

1336 78 S.Ct. 1190 (1668); U.S. v. Watson, 423 U.S. 411, 420 fn. 6, 46

L.E£d.2¢ 598, 607, 96 S.Ct. 820.)

Federal circuit decisions do not appear unanimous on this issue, anc

its resolution would appear to depend laraeiy on the particuiar context

involved. As noted in U.S. v. McNolty 729 F.2d 1243, 1251 (10th Cir.

1983):

We do not say that federal courts need never

construe or apply state law. Where the circumstances

dictate the propriety of applying state law, it will

be recognizec. An example of this United States v.

Dudek, 530 F.2d at 690. The failure of Ohio police

officers to file a timely report and a verified

inventory was held (in Dudek) to not require

vitiation of an otherwise validly executed search

warrant issued under Ohio law. A dearth of federa!

law on the issue in question is one such constraint.

United States v. Di Re, 332 U.S. 581, 589-91, 68

S.Ct. 222, 226-27, 92 L.Ed. 210 (1948). In that

case, the Court ruled that state law governed the

propriety of seizure of evidence of a federal crime

by a state officer working with a federal officer,

because there was insufficient federal law on the

question of warrantless arrest. More to the point

here, a relevant federal statute may prescribe

reference to state law in certain instances. (Cf.

Fed.R.Evid. 501 (privilege in certain actions to be

determined in accordance with state law). Thus a

careful examination of Title III, the federal wiretap

statute, is necessary here. (Fn. omitted.)

(See also, U.S. v. Mitchell, 783 F.2d. 971, 973-974, (10th Cir. 1963)

holding Federal Law controlling; cf. Mason v. United States 719 F.2¢

1485, (10th Cir 1983) referring to state law; U.S. v. Rickos 737 F.2d

360 (3rd Cir. 1984).)

x*

And in a series of cases dealina with wiretap evidence some courts

have relied on state law, since the issue involved the basic right of

privacy, particularly when state officers act pursuant to a state

warrant. As stated in U.S. v. Manfredi, 488 F.2d 585, 598 (2nd Cir.

1973):

In dealing with the question of the validity

of the warrants themselves, clearly a question of

law, it will be recalled that the Crodelle affidavit

submitted to the state court judae in support of the

petition seeking the wiretap order contained an

aareement “to limit the seizure of conversations to

those specifically pertaining to the aforementioned

Penal Law violations.” (Fn. omitted.)

But this doctrine concededly is not without its limitations. As stated

in U.S. v. Jarabek 726 F.2d 889, 900 (Ist Cir. 1984):

Curreri involved a state investigation

with the use of wiretap equipment authorized by a

state court order. Federal officials became involved

only after the wiretapping was completed. The

analysis in this case, upon which appellants rely,

must be read in the context of the court's

observation that a stricter state statute reaarding

wiretap interception will be applied by a federal

court only in the event electronic surveillance is

conducted pursuant to a state court authorization.

Curreri provices no support for appellant's

claim.

We have found no federal case that has relied on

state law in judaing the admissibility of evidence of

intercepted communications in any circumstances other

than where the electronic surveillance was conducted

pursuant to a state warrant or order. On the other

hand, a number of cases stand for the proposition

that in federal criminal trials, regardless of any

violation of state law, the admissibility of wiretap

evidence always is a question of federal law. €.qa.,

United States v. Butera, 677 F.2d 1376, 1380

(llth Cir. 1982), cert. denied, U.S.

(1983); United States v. Ho-ton, 601 F.2d SIS

323 (7th Cir.) cert. denied, 444 U.S. 937 (1979);

United States v. Nelligan, 575 F.2d 251, 253 (Sth

Cir. 1978); United States v. Shaffer, 520 F.2d

1369, 1371-72 (3d Cir. 1975) (per curiam), cert.

denied, 423 U.S. 1051 (1976). In the instant case

it is not necessary for us to rest our decision upon

this proposition, for here we have federal officers

who performed their duties in a lawful manner in a

joint investigation. The mere involvement of state

officers is not sufficient reason to look to state

law to determine the admissibility of interception

evidence. (fn. omitted.)

The foregoing decisions provide ample analogous authority for

reference to state law to determine certain basic issues of privacy.

And the warranties. trash searches involved in the present case what

-4-

is at first blush a general Fourth Amendment issue, but ultimately it is

an issue which must rest on state law.

In People v. Krivda (1971) 5 Cal.3¢ 357, the California Supreme

Court ruled that warrantless trash searches violate a reasonable

expectation of privacy. In People v. Krivda (1973) 8 Cal.3d 623, 624,

that Court ruled that its decision was based on both state and federa)

principles. California is not entirely alone on this issue, see, State

v. Tanaka (Haw. 1985) 701 P.2d 1274, 1276; see also, Bolen v. State

(Tenn. 1976) 544 S.W.2d 918, 920.)

More importantly, for purposes of the present analysis, a state

citizen's reasonable expectation of privacy must be largely influenced bv

the peculiar facets of state law. State law is thus a circumstance

which, viewed with other circumstances, determines the extent of privacy

which a citizen might reasonably expect.

Celifornia has its own constitutionally protected rioht to be free

from unreasonable searches and seizures (Cal. Const. Art I §13), and its

own constitutional provisions protecting its citizens’ right to privacy.

(Cal.Const. Art I §1.)

The adoption of Article I, §28(d) which eliminates the remedy of

exclusion, does not by its terms alter these basic notions of privacy.

(In re Lance W. (1985) 37 Cal.3d 873, 884.)

A citizen in California, thus has the right to expect that his

privacy will not be invaded by violations of the state constitution, even

though that constitution no longer provides a remedy of exclusion in a

criminal proceeding. That expectation of privacy is reasonable, since it

it embodied in the state constitution, and its

CONCLUSION

For these reasons, the Petition for Writ of Certiorari should be

denied.

Respectfully submitted,

Attorney for Respondent

Billy Greenwood

aie

THE STATE OF

Vv.

BILLY GREENWO

STATE OF CALI

COUNTY OF ORA

1, ROSANA HUI

California.

action: my b

Suite, 4th Fl

On February 1

BRIEF IN OPPO

conv thereof

United States

addressed as

Attorney Gene

110 West “A”

San Dieac, CA

Court of Appe

Fourth Appell

600 West Sant

Sant Ana, CA.

Further, that

-entitled act

hereinafter n

Cecil Hicks,

700 Civic Cen

Santa Ana, CA

I declare und

correct.

Executed on F

IFORNIA,

Petitioner,

DECLARATION OF VICE

, 2 By,

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Respondents

RNIA)

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ss

R, am employed in the county of Orange, State of

am over the age of 18 and not a party to the within

iness address is 611 Civic Center Drive west, Penthouse

r, Santa Ana, California 92701.

1987, I served the foregoing document described as

TION, in the above entitled action by depositina a

@ sealed envelope, postage thereon fully prepaid, in the

jo at Santa Ana, California. Said envelopes were

‘lows:

7 Richard Schwartzberg

reet, #600 401 Civic Center Drive West #820

92101 Santa Ana, CA. 92701

California Supreme Court

e District 3580 Wilshire Blvd., Room 213

Ana Blvd. Los Angeles, CA. 90010

92701

in the same date 1] personally served a copy of the above

yn by delivering by hand and leaving with the person

ied a copy thereof:

strict Attorney Michael J. Pear, D.D.A.

r Drive West 700 Civic Center Drive west

92701 Santa Ana, CA. 92701

penalty of perjury that the foregoing is true and

ruary 10, 1987, at Santa Ana, California.

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