# Reply Brief — Pennsylvania v. Kilgore (Nos. 95-1738, 95-1691) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0720%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 1995 ## Text 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 ~) iaegge— tig a ee ie by i 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0720%3A4. Public record. Not legal advice.