Reply Brief — Pennsylvania v. Kilgore (Nos. 95-1738, 95-1691)

Supreme Court, U.S.

7itss

NO. 95-1738 JUN 9 1996

IN THE oe

-

SUPREME COURT OF THE UNITED STATES

October Term, 1995

COMMONWEALTH OF PENNSYLVANIA,

Petitioner

V.

RANDY LEE KILGORE,

Respondent

Petition for Writ of Certiorari to

the Supreme Court of Pennsylvania

REPLY TO BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

H. STANLEY REBERT

District Attorney

CHRISTY H. FAWCETT

Chief Deputy Prosecutor

RONALD EISENBERG

Special Assistant District Attorney

(Counsel of Record)

JOAN WEINER

Special Assistant District Attorney

CATHERINE MARSHALL

Special Assistant District Attorney

York County District Attorney’s Office

c/o Ronald Eisenberg, Esquire

1421 Arch Street

Philadelphia, Pa. 19102

(215) 686-5700

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Table of Authorities

Statement of the Case

Reply to Brief in Opposition

Conclusion

FEDE AS

Almeida-Sanchez v. United

States, 413 U.S. 266 (1973)

California v. Carney, 471

U.S. 386 (1985)

Chimel v. California, 395

U.S. 752 (1969)

Texas v. Brown, 460 U.S.

730 (1983)

Texas v. White, 423 U.S.

67 (1975)

United States v. Jeffers,

342 U.S. 48 (1951)

United States v. Johns,

469 U.S. 478 (1985)

United States v. Ross,

456 U.S. 798 (1982)

Warden v. Hayden, 387

U.S. 294 (1967)

Zap v. United States,

328 U.S. 624 (1946)

2,4

STATEMENT OF THE CASE

In his counterstatement of the facts, respondent

raises various cavils about the events leading up to the

search (¢.g., respondent walked “toward” the truck where

the contraband was found, not “to” it). The implicit

point appears to be that the police may have lacked

probable cause for the search. The state court, however,

found probable cause, and respondent does not argue to

the contrary. The only issue at this stage is whether

police needed a warrant to search the vehicle.

REPLY TO BRIEF IN OPPOSITION

In its certiorari petition, petitioner explained that

this case warrants review because the Pennsylvania

Supreme Court impermissibly grafted on to this Court's

Fourth Amendment jurisprudence the requirement that

the police, acting with probable cause, must first secure

a motor vehicle and send other officers to obtain a

warrant before searching it.

in response, respondent attempts to downplay the

significance of the case by characterizing it as one of

“unique facts” falling outside the automobile exception.

He does so, however, by arguing that the automobile

exception applies only in cases involving such extra

factors as "a consent search,” “plain view,” “sudden

encounter and stop," or “search incident to arrest."

This, however, is a fundamentally mistaken view

of the automobile exception, which is the whole point of

the certiorari petition. The Pennsylvania Supreme Court

has held in this and a series of cases that the automobile

exception requires something more than a showing of

probable cause -- that it requires, in effect, an indepen-

dent exception to the warrant requirement, such as an

exigent circumstance beyond the inherent mobility of the

vehicle.

Respondent's argument, brief as it is, epitomizes

exactly this erroneous understanding « “ourth

Amendment law. The “automobile exception” ts one gf

several distinct exceptions to the warrant requirement.

Because owners have a diminished expectation of

privacy in their automobiles, as long as the police have

probable cause to search a car, they may do so without a

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

If, as respondent and the Pennsylvama Supreme

Court believe, the automobile exception instead requires

the presence of some additional factor, such as exigent

circumstances or consent, then it ceases to exist. A

consensual search, for example, is valid without a

warrant whether or not an automobile is involved.

Under the analysis of respondent and the Pennsylvania

Supreme Court, the automobile exception is swallowed

up.

The cases cited by respondent make the point

even clearer. Respondent states, for example, that the

automobile exception was applied in California v.

Carney, 471 U.S. 386 (1985), only because there were

| Other exceptions to the warrant requirement

include “hot pursuit,” see Warden v. Hayden, 387 U.S.

294, (1967); “exigent circumstances," see United States

v. Jeffers, 342 U.S. 48 (1951); “search incident to

arrest,” see Chimel v. California, 395 U.S. 752 (1969),

border searches, see Almeida-Sanchez v. United States,

413 U.S. 266 (1973); consent searches, see Zap v.

United States, 328 U.S. 624 (1946); and "plain view"

searches, see Texas v. Brown, 460 U.S. 730 (1983).

2

exigent circumstances beyond the inherent mobility of

the vehicle. The opposite is true. In Carney,

government agents received information that marijuana

was being exchanged for sex inside a certain motor

home. On-site surveillance corroborated the allegation

and the police entered the motor home without a

warrant.

This Court did not uphold the warrantless search

because of any exigencies beyond the inherent mobility

of the vehicle. Indeed, there were none. Rather, the

search was allowed under the “automobile exception”

because, as with all motor vehicles, the accused had a

diminished expectation of privacy in his trailer, and the

agents had probable cause. No additional showing was

necessary.

Respondent also points to Texas v. White, 423

U.S. 67 (1975), in which the automobile exception was

supposedly applied only because probable cause resulted

from a “plain view" discovery. That is not the case. In

White, the police were informed that a man had just

tried to negotiate four fraudulent checks at a nearby

bank. They located the described car and driver and

ordered him to stop on the road. As they did so, they

noticed that the driver was trying to hide something

between his legs, but they could not make out what it

was. However, based on the description of the culprit

and the car, they arrested the driver, drove the car to

headquarters and searched it without a warrant.

scene, their right to search the car did not abate simply

because they drove the car to police headquarters before

searching it. Respondent's contrary assertion notwith-

standing, plain view played no role in White.

3

Finally, respondent suggests that the automobile

exception applies only where a vehicle is suddenly

encountered and stopped on the highway -- presumably,

in respondent's thinking, a form of exigency. In

support, he points to United States v. Johns, 469 U.S.

478 (1985), and United States v. Ross, supra. Respon-

dent again mischaracterizes the case law.

In Johns, United States Customs officers devel-

oped information about a drug operation at a remote

airstrip. Upon further investigation, they approached a

truck near the airstrip and smelled a strong odor of

marijuana. Although the officers had probable cause to

search the truck at that point, they decided instead to

drive it to a government warehouse and question the

driver. Three days later, they searched the truck without

a warrant. This Court upheld that delayed search not

because of any “sudden encounter or stop" on the high-

way. The search was permitted because probable cause

existed, and it did not disappear with the passage of

time.

The application of the automobile exception in

United States v. Ross likewise was not determined by

assessing the circumstances under which the police first

encountered the car. In Ross, a reliable informant told

the police that a particular person was dealing drugs out

of the trunk of a car at a described location. The police

went to the scene to investigate, saw the person and car

in question, and searched the car trunk. Later, the

police again searched the car at headquarters. This

Court upheld the searches both at the scene and at

headquarters, regardless of whether any "sudden encoun-

ter or stop” or stop occurred. The searches were permit-

ted because the police had probable cause and that was

all the automobile exception required.

Actually, respondent's “sudden encounter" theory

is inconsistent not just with precedent, but with his own

argument. Once a car is stopped and the suspect is

removed, the vehicle is unlikely to drive away by itself.

Under the Fourth Amendment notions of respondent and

the state court, the police should be required to secure a

warrant at that point; the fact that the “encounter” began

"suddenly" would not impair the ability to contact a

magistrate after the stop has been made. Such reason-

ing, indeed, is exactly why the state court held in this

case that the police should have guarded the vehicle and

sent other officers off to track down a magistrate before

conducting a search.

The problem with this rationale is that the ease

of obtaining a warrant is simply not a question under the

automobile exception. The existence of probable cause,

in light of the reduced expectation of privacy in motor

vehicles, is sufficient to support the exception. Respon-

dent makes precisely the same error as the Pennsylvania

Supreme Court: they have confused the conditions for

the automobile exception with the conditions for other

exceptions to the warrant requirement, such as exigent

circumstances.

As a result, federal law is not applied in Pennsyl-

vania in the same manner as in other states. The

certiorari petition should be granted to address this

divergence.

CONCLUSION

For these reasons, as well as those stated in the

petition for writ of certiorari, petitioner respectfully

requests that a writ of certiorari issue to review the

decision below.

ie

H. STANLEY ERT

District Attorney

CHRISTY H. FAWCETT

Chief Deputy Prosecutor

RONALD EISENBERG

Special Assistant District Attorney

(Counsel of Record)

JOAN WEINER

Special Assistant District Attorney

CATHERINE MARSHALL

Special Assistant District Attorney

York County District Attorney’s Office

c/o Ronald Eisenberg, Esquire

1421 Arch Street

Philadelphia, Pa. 19102

(215) 686-5700

June 1996