Petition for Writ of Certiorari — Diaz v. California (No. 08-524)

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Supreme Court of the United States

JOE DIAZ,

Petitioner,

STATE OF CALIFORNIA,

Respondent.

On Petition for Writ of Certiorari to the

Court of Appeal of California,

Second Appellate District, Division Eight

PETITION FOR WRIT OF CERTIORARI

ROGER JON DIAMOND

Counsel of Record

2115 Main STREET

SANTA Monica, CA 90405

(310) 399-3259

Counsel for Petitioner

October 17, 2008

Becker Gallagher - Cincinnat:, OI! - Washington, D.C. - 800.890.5001

QUESTIONS PRESENTED

1. Do the police violate the Fourth Amendment to

the United States Constitution when they search a

privately owned vehicle parked in a private driveway

of a private residence owned by the defendant without

benefit of a search warrant, without consent, and

without exigent circumstances?

2. Does the State of California violate the Second

Amendment by making the possession of a gun by a

felon a crime? See District of Columbia v. Heller, _

U.S. __ , 128 S.Ct. 2783 (2008).

PARTIES TO THE PROCEEDINGS

Petitioner: Joe Diaz. Joe Diaz is the defendant in a

criminal case in California.

Respondent: The State of California is prosecuting

Petitioner Diaz in the state court.

ill

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................... i

PARTIES TO THE PROCEEDINGS ........... ii

po. iii

TABLE OF AUTHORITIES Cryer rere eee eee v

PETITION FOR A WRIT OF CERTIORARI ..... 1

a 2 ina ews wee eke e's 8 1

STATEMENT OF JURISDICTION ............ 2

CONSTITUTIONAL PROVISIONS INVOLVED . 2

STATEMENT OF THE CASE ................ 4

REASONS FOR GRANTING THE WRIT ....... 6

1. Review Should Be Granted To Decide

Whether The Police Can Ever Be Required

To Obtain A Search Warrant To Search A

Vehicle, No Matter What The

ee we be oe 6

2. Certiorari Should Be Granted To Decide The

Constitutionality Of Penal Code Section

12021, Subdivision (a)(1), As Applied To A

Convicted Felon For A Non Violent Felony,

In Light Of District of Columbia v. Heller,

US. , 128 S.Ct. 2783 (2008). .. 24

‘

ee RO PT NO Hy Re ee at Ter Ae emery EE RT ORE Ra RE ee ee gy eee ee ee

EE \o id waa Nawe ee t.ente eee eee 27

APPENDIX:

Appendix A: Court of Appeal Opinion

Se ere la

Appendix B: Court of Appeal Order Modifying

Opinion, No Change in Judgment

Se Es sss ss bo wie ccmaee 7a

4 Appendix C: California Supreme Court en banc

% denial of petition for review

: Gigk MAAN 5. coe 9a

ae ap eee ee ee Pe oe oe on

TABLE OF AUTHORITIES

FEDERAL CASES

Arizona v. Gant, _ _U.S.__,

i et wee ee Geen 20

Arkansas v. Sanders, 442 U.S. 753,

a lee cue eee 9

Cady v. Dombrowski, 413 U.S. 433,

Ne eee wees 8

California v. Acevedo, 500 U.S. 565,

114 L.Ed.2d 619, 111 S.Ct. (1982) ....... 5, 22, 23

California v. Carney, 471 U.S. 386,

Pe 10, 16, 18

Carroll v. United States, 267 U.S. 132,

Ni ce ec ec ee 9,10

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

I a 9

Colorado v. Bertine, 479 U.S. 367,

NN nn Lk iweeseeben 11

Coolidge v. New Hampshire, 403 U.S. 443,

Dee cee eeeus 11

Cooper v. California, 386 U.S. 58,

eI ae mn EE 11

: ;

;

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District of Columbia v. Heller, 554 U.S.

Ee 5, 24, 25

Faretta v. California, 422 U.S. 806,

45 L.Ed.2d 562, 95 S.Ct. 2525 (1975) ........... 2

Horton v. California, 496 U.S. 128,

EE 11

Mapp vy. Ohio, 367 U.S. 643 (1961) ............. 7

Maryland v. Dyson, 527 U.S. 465,

144 L.Ed.2d, 119 S.Ct. 2913 (1999) ..... 12, 14, 15

Miller v. United States, 357 U.S. 301,

2 L.Ed.2d 1332, 78 S.Ct. 1190 (1958) Re ae eid 20

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

9 L.Ed.2d 768, 101 S.Ct. 2860 (1981) .......... 20

Pennsylvania v. LaBron, 518 U.S. 938,

135 L.Ed.2d 1031, 116 S.Ct. 2485

Ces bebe GMs U0 4.0.5 wiv.6 4.0 4 6 12, 13, 14, 15

Preston v. United States, 376 U.S. 364,

ER 8

South Dakota v. Opperman, 428 U.S. 364,

ES 8

State v. Gant, 216 Ariz. 1, 162 P.3d 640

eee teed ca Se nee dWriveccee << 20

United States v. Fields, 456 F.3d 519

eS oy alee ee buaved 17

vii

United States v. Hamilton, 792 F.2d 837

ERE RRS SE ae 15, 16, 17

United States v. Hatley, 15 F.3d 856

ee cee 15, 16, 17

United States v. Nelson, 459 F.2d 884

a 19

United States v. Ross, 456 U.S. 798,

eg IE ee en a ae 9

United States v. Sinisterra, 77 F.3d 101

ee ce ewe 18

CONSTITUTIONAL AND

STATUTORY PROVISIONS

Se So he ees we 26

ES ee passim

a rr ee passim

cc ced ewbleen 7

NE Ee 2

California Penal Code Section

IRE a 3, 5, 24, 26

California Penal Code Section 1538.5 ...... 3,4, 7

PETITION FOR WRIT OF CERTIORARI

Joe Diaz respectfully prays that a Writ of Certiorari

issue to review the judgment and opinion of the

California Court of Appeal, Second Appellate District,

Division Eight, entered on May 28, 2008. OnJune 18,

2008 the Court of Appeal modified its opinion without

changing its judgment. On September 10, 2008 the

California Supreme Court denied a Petition for

Review.

OPINIONS BELOW

The unpublished opinion of the California Court of

Appeal, Second Appellate District, Division Eight

entered on May 28, 2008 is not reported. It is

Appendix A at la. The Superior Court of the State of

California for the County of Los Angeles denied

Petitioner’s pretrial motion to suppress evidence and

thereafter Petitioner Diaz pleaded guilty with a right

to appeal the unpublished, oral decision of the

Superior Court denying his motion to suppress

evidence. The oral decision of the Superior Court is

not reported.

On June 18, 2008 the Court of Appeal, Second

Appellate District, Division Eight modified its opinion,

but did not change the judgment. The order modifying

the opinion is not reported. It is Appendix B at 7a.

The California Supreme Court on September 10,

2008 denied discretionary review in an unpublished

and unreported order, Appendix C at 9a.

STATEMENT OF JURISDICTION

The California Court of Appeal, Second Appellate

District, Division Eight issued is opinion on May 28,

2008 affirming the judgment of conviction in this case

based upon Petitioner’s guilty plea after his motion to

suppress evidence based upon the Fourth Amendment

to the United States Constitution was denied. On

June 18, 2008 the Court of Appeal, Second Appellate

District, Division Eight modified its decision.

On September 10, 2008 the California Supreme

Court denied discretionary review. This Petition for

a Writ of Certiorari is filed within 90 days of the denial

of the Petition for Review. This Court’s jurisdiction is

invoked pursuant to 28 U.S.C. Section 1257(a). Ifthe

highest court of the state refuses to exercise

discretionary jurisdiction then this Court has

certiorari jurisdiction to review the decision of the

intermediate state appellate court. See Faretta v.

California, 422 U.S. 806, 45 L.Ed.2d 562, 95 S.Ct. 2525

(1975), where this Court reversed an unpublished

decision of the California Court of Appeal, Second

Appellate District after the California Supreme Court

denied discretionary review.

CONSTITUTIONAL PROVISIONS INVOLVED

The Fourth Amendment to the United States

Constitution provides as follows:

“The right of the People to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not

be violated, and no warrants shall issue, but

upon probable cause, supported by oath or

affirmation, and particularly describing the

place to be searched, and the persons or things

to be seized.”

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California Penal Code Section 12021(a)(1) provides, |

in part, as follows:

“Any person who has been convicted of a felony

under the laws of. . . the State of California . .

. and who owns, purchases, receives, or has in

his or her possession or under his or her custody

or control any firearm is guilty of a felony.”

California Penal Code Section 1538.5 provides, in

part, as follows:

“(a)(1) A defendant may move for the return of

property or to suppress as evidence any tangible

or intangible thing obtained as a result of a

search or seizure on either of the following

grounds:

(A) The search or seizure without a warrant was

unreasonable.”

STATEMENT OF THE CASE

Prior to October 20, 2005, Petitioner Joe Diaz

(“Diaz”) was convicted of a felony. On October 20,

2005 Diaz’ motor vehicle was parked on a private

driveway of an apartment building which Diaz owned.

Diaz, a former Los Angeles Police Officer, got into an

argument with someone named Kenneth Jones,

outside of Diaz’ apartment building. During the

dispute over money Diaz pulled out a small handgun

and pointed it at Jones. Diaz also calied the police,

walked to his parked car on the private driveway,

opened his trunk, and put the handgun inside the

trunk.

The police arrived in response to Diaz’ call, opened

the trunk of the vehicle, and found two handguns. The

police justified the search based upon probable cause

to believe that Diaz had assaulted Jones with a deadly

weapon and that there was a gun in the trunk of Diaz’

vehicle, which was parked on his private driveway of

his apartment building (although he did not live

there).

After Diaz was arrested for assault with a deadly

weapon and later only charged with possession of

handguns by a felon, he moved the Superior Court

pursuant to Penal Code Section 1538.5 for an order

suppressing evidence on the ground that the search of

his vehicle violated the Fourth Amendment. The

prosecution conceded that there was no search

warrant, no consent by Diaz, and no exigent

circumstances. Rather, the prosecution contended

that as a matter of law no search warrant is ever

needed to search a vehicle when there is probable

cause to search the vehicle.’

After the Superior Court denied Diaz’ motion to

suppress the guns, he entered into a plea bargain with

* The probable cause here was extremely thin, almost non

existent. It is not a crime to point a gun at someone unless there

is no valid reason to do so.

a el

the prosecution that resulted in his plea of guilty to

possession of a gun in violation of Penal Code Section

12021(a\(1). Diaz was sentenced to 18 months in

prison. Diaz appealed his conviction and was

permitted to remain free on bail pending appeal.

California law allows a person who has been

convicted of a crime after unsuccessfully moving to

suppress evidence to appeal from the conviction even

though the conviction was based upon a guilty plea.

While he did not argue this point in the trial court,

Diaz did argue on appeal! that he anticipated that this

Court in District of Columbia v. Heller, 554 U.S. __,

128 S.Ct. 2783 (2008) would find that the possession

of a gun is protected by the Second Amendment. At

the time the briefs were filed in the Court of Appeal

the District of Columbia v. Heller case had not yet

been decided.

On June 26, 2007, after the Court of Appeal

modified its Opinion but before its Opinion became

final as to the Court of Appeal, this Court in a five to

four decision struck down a District of Columbia

ordinance banning the possession of handguns based

upon the Second Amendment. The Court of Appeal

below did not reach the Second Amendment issue

because it had not been raised in the trial court.

In upholding the search the Court of Appeal below

cited California v. Acevedo, 500 U.S. 565, 114 L.Ed.2d

619, 111 S.Ct. 1982 (1991), a case which neither side

cited. After Diaz lost in the State Court of Appeal

below Diaz sought discretionary review in the

California Supreme Court. He specifically raised

before the California Supreme Court both the Second

Amendment gun issue as well as the Fourth

Amendment search and seizure issue. The California

Supreme Court denied discretionary review on

September 10, 2008.

REASONS FOR GRANTING THE WRIT

1. Review Should Be Granted To Decide

Whether The Police Can Ever Be Required

To Obtain A Search Warrant To Search A

Vehicle, No Matter What The

Circumstances

Recognizing that there apparently is some sort of

exception to the search warrant requirement when a

motor vehicle is involved, Diaz nevertheless argued

below that the so called motor vehicle exception to the

warrant requirement is not absolute and that there is

still is a residual area of law where the Fourth

Amendment would require a search warrant, even to

search a motor vehicle. Specifically, Diaz argued

below and argues here that although there are a

number of cases involving motor vehicles and searches

where the courts have dispensed with the search

warrant requirement, there still must be one area of

law where a search warrant is still required for motor

vehicles and that area involves the situation where a

privately owned motor vehicle is parked on one’s

privately owned driveway at a residence, where there

is no exigent circumstance, where there is no consent

to search, and where nothing would prevent the police

officer from obtaining a search warrant. The Fourth

Amendment to the United States Constitution

provides as follows:

“The right of the People to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not

be violated, and no warrants shall issue, but

upon probable cause, supported by oath or

affirmation, and particularly describing the

place to be searched, and the persons or things

to be seized.”

This Court in Mapp v. Ohio, 367 U.S. 643 (1961)

held that evidence seized in violation of the Fourth

Amendment cannot be used in state court criminal

cases. By virtue of the Fourteenth Amendment to the

United States Constitution, the Fourth Amendment

applies to the states.

The rights guaranteed by the Fourth Amendment

may be exercised by the filing of a motion to suppress

evidence pursuant to California Penal Code Section

1538.5.

Penal Code Section 1538.5 provides, in part, as

follows:

“(aX(1) A defendant may move for the return of

property or to suppress as evidence any tangible

or intangible thing obtained as a result of a

search or seizure on either of the following

grounds:

(A) The search or seizure without a

warrant was unreasonable.”

In his Opening Brief filed with the Court of Appeal

Diaz surveyed a number of search and seizure cases

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involving automobiles. The first case examined by

Diaz was Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct.

2523 (1973). This case involved a defendant whose

vehicle was disabled as a result of an accident. The

defendant was intoxicated and could not make

arrangements to have the vehicle towed and stored.

The police seized the vehicle and towed it to a storage

facility. The police opened the trunk and seized

certain incriminating evidence. This was done without

a search warrant. This Court held that the search was

legal. This Court did refer to its earlier decision in

Preston v. United States, 376 U.S. 364, 84 S.Ct. 881

(1964), where this Court held in that particular case

that the search of the automobile violated the

Constitution. This Court noted that in the Preston

case the search had been conducted after the

defendant was under arrest and in custody. Under

those circumstances this Court said that the search

was not incidental to the arrest.

Establishing that Cady v. Dombrowski, supra, does

not apply to this case, we now move to other more

recent cases including South Dakota v. Opperman, 428

U.S. 364, 96 S.Ct. 3092 (1976), which held that the

Fourth Amendment is not violated when the police

conduct a routine inventory search of an automobile

lawfully impounded by police for violations of

municipal parking ordinances. Obviously the South

Dakota _v. Opperman case does not assist us in

resolving the issue presented by this case. We must

again emphasize that this case involves the search of

a vehicle parked at Diaz’ apartment building. The

vehicle was not used for the commission of a crime,

there was no search warrant, and no permission to

search.

We next examine Arkansas v. Sanders, 442 U.S.

753, 99 S.Ct. 2586 (1979), which involved a police

pursuit of a taxicab in which the defendant was riding.

A suitcase was removed from the taxicab’s trunk and

searched. This Court ruled the search was valid but

again this case did not involve a parked vehicle on a

private driveway. This Court in Arkansas v. Sanders,

supra, referred to its earlier decision in Chambers v.

Maroney, 399 U.S. 42, 90 S.Ct. 1975 (1970), but that

case is not on point. That case involved robbers who

had fled the scene of the robbery in a vehicle. The

police stopped the vehicle, searched it for guns and

stolen money, and then searched vehicle again at the

police station. The Chambers v. Maroney case is not

a case like the instant one, where a vehicle was

searched at a private residence. This Court in

Chambers v. Maroney, supra, referred to its earlier

decision in Carroll v. United States, 267 U.S. 132, 45

S.Ct. 280 (1925), but that case involved the

admissibility of evidence seized in a warrantless

search of a vehicle on a highway. The Carroll case did

not involve a vehicle at a private residence.

United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157

(1982), was also a vehicle stop case. In the Ross case

police officers legitimately stopped an automobile and

had probable cause to believe that contraband was

concealed somewhcre within the vehicle. This Court

ruled that the police could conduct a search of the

vehicle. This Court stated, 456 U.S. at 806-807, 102

S.Ct. 2163:

“. . . Given the nature of an automobile in

transit, the Court recognized that an immediate

intrusion is necessary if police officers are to

secure the illicit substance. In this class of

cases, the court held that a warrantless search

of an automobile is not unreason- able.”

The quote above was in reference to the earlier

decision by the this Court, Carroll v. United States,

supra.

California v. Carney, 471 U.S. 386, 105 S.Ct. 2066

(1985) does not apply to this case. In the Carney case

this Court stated in the initial paragraph of the

opinion:

“We granted certiorari to decide whether law

enforcement agents violated the Fourth

Amendment when they conducted a warrantless

search, based on probable cause, of a fully

mobile ‘motor home’ located in a public place.”

This Court stated at 471 U.S. 392-393, 105 S.Ct. |

2070: ; |

“When a vehicle is being used on the highways,

or if it is readily capable of such use and is

found stationary in a place not regularly used

for residential purposes — temporary or

otherwise — the two justifications for the vehicle

exception come into play.”

Since the Carney case applied to a vehicle “located

in a public place” it does not apply to the instant case.

Note the phrase, “not regularly used for residential

purposes.”

“

’

We next turn to Colorado v. Bertine, 479 U.S. 367,

107 S.Ct. 738 (1987). This case likewise does not

involve the current case before this Court. In

Colorado v. Bertine, the defendant was arrested for

driving under the influence of alcohol. After he was

taken into custody the vehicle was inventoried for the

contents. This was done just prior to the arrival of the

tow truck. Contraband was found during the

inventory search. Again, Colorado v. Bertine does not

apply to the instant case, which involves the search of

a vehicle parked on a private driveway.

Horton v. California, 496 U.S. 128, 110 S.Ct. 2301

(1990) is only mentioned because it discusses earlier

automobile search cases including Coolidge v. New

Hampshire, 403 U.S. 443, 91 S.Ct. 2022 (1971). This

Court in the Coolidge case reversed a state court

murder conviction because, among other things,

evidence was seized from the defendant’s motor vehicle

which had been parked on the defendant’s driveway.

This Court first ruled that the search warrant that

was used was invalid and then rejected the argument

that the vehicle was searched incidental to an arrest.

In the course of the Coolidge v. New Hampshire

opinion, this Court referred to its earlier decision in

Cooper v. California, 386 U.S. 58, 87 S.Ct. 788 (1967),

but that case does not assist the prosecution here

because that case involved a California statute

authorizing the seizure by the police of a vehicle which

had been impounded and which was being held in a

police garage. The case really involved the forfeiture

statute. The California Attorney General even

conceded that the search could not be justified as

allegedly incidental to an arrest.

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Since the issue is narrow - whether the police can

dispense with a warrant requirement when searching

a vehicle parked on a private driveway there is no

reason to deal with cases involving police pursuits of

vehicles, the impoundment of vehicles, the location of

vehicles parked on public streets, or inventory

searches. None of those cases applies to the situation

at hand.

At the hearing on the motion to suppress evidence

the prosecution relied upon one case, Maryland v.

Dyson, 527 U.S. 465, 144 L.Ed.2d, 119 S.Ct. 2013

(1999). With all due respect to the state, that case

does not apply. It involved the stopping of a moving

vehicle, not a vehicle parked on a private driveway.

This Court referred to its prior decision in

Pennsylvania v. LaBron, 518 U.S. 938, 135 L.Ed.2d

1031, 116S.Ct. 2485 (1996), which involved two search

and seizure cases from the Pennsylvania Supreme

Court. Of the two cases reviewed by this Court from

the Pennsylvania Supreme Court, the one involving

defendant Kilgore comes the closest to the factual

scenario of the instant case but is not the same case.

There is a significant distinction. In the Kilgore case

re by this Court in Pennsylvania v. LaBron,

upra, this Court pointed out that the drug transaction

canal the driving of a pick-up truck which was

parked at a farm house. The owner of the farm house

where the truck was parked gave permission to search.

The opinion is slightly ambiguous as to whether the

consent given by the owner of the farm house to search

the farm house extended to the vehicle parked at the

farm house. This Court pointed out that the pick-up

truck was “parked in the driveway of the farm house.

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” Pennsylvania v. LaBron, 518 U.S. at 939; 116

S. Ct. at 2486. In the instant case, the property where

Diaz’ vehicle was parked was Mr. Diaz’ property. Diaz

certainly did not give consent to search and even if

Diaz were not the owner of the property, no owner of

the property gave consent to search the property

including the vehicle parked on the driveway of the

property.

After analyzing the cases above in his Opening

Brief filed with the Court of Appeal Diaz then pointed

out that there was not one case involving search and

seizure law and the search of vehicles without a

warrant involving the precise factual scenario of this

case - a motor vehicle parked on a private driveway of

a private residence owned by the defendant himself.

Diaz pointed out that there was never a case holding

that no matter what the circumstances a search

warrant is never necessary for the search of a vehicle.

Diaz argued in his Opening Brief that when a vehicle

is parked on one’s own private driveway and no

consent is given, a search warrant is necessary. Diaz

pointed out that there were no cases to the contrary.

The California Attorney General in his

Respondent’s Brief primarily relied upon federal cases.

Diaz in his Appellant’s Reply Brief distinguished all of

the cases upon which the California Attorney General

relied. Before distinguishing those cases Diaz

reminded the Court of Appeal that the narrow issue

was whether the Fourth Amendment is violated when

the police, without benefit of a search warrant, without

consent, and without exigent circumstances, search a

privately owned vehicle parked on a private driveway

of a private residence owned by the defendant.

The Attorney General primarily relied upon two

United States Supreme Court decisions, Pennsylvania

v. Labron, 518 U.S. 938, 135 L.Ed.2d 1031, 116 S.Ct.

2485 (1996) and Maryland v. Dyson, 527 U.S. 455, 144

L.Ed.2d 442, 119 S.Ct. 2013 (1999).

As Diaz told the California Court of Appeal,

Maryland v. Dyson, supra, does not apply because it

involved the stopping of a moving motor vehicle, not a

vehicle parked in a private driveway. This is the

same case upon which the prosecution primarily

relied. In this case the Attorney General referred to

dictum quoted out of context. Two additional points

must be made about the Maryland v. Dyson, supra

case. First, it should be noted that the Maryland

Court of Special Appeals ruled that the search was

unconstitutional. Thus, we have the decision of an

intermediate state appellate court in support of the

Fourth Amendment. Second, the decision of the

Maryland Court of Special Appeals was reviewed by

this Court without the benefit of any brief or argument

by the defendant in that case who prevailed in the

Maryland Court of Special Appeals. The defendant

did not file a brief in opposition to the Petition for Writ

of Certiorari, did not file a brief on the merits, and did

not argue the matter. As Justice Breyer noted in his

dissenting opinion (in which Justice Stevens joined), a

summary reversal does not decide any new or

unanswered questions of law. Accordingly, not only is

Maryland v. Dyson, supra, not directly on point, it was

not even decided in a traditional adversarial way with

both sides appearing and arguing their respective

points. While this Court occasionally does reverse

lower court decisions summarily, it does so after at

least considering some opposition. Apparently Mr.

Dyson, who prevailed in the Maryland Court of Special

Appeals, was not represented in this Court because his

attorney was not a member of the Bar of this Court.

Diaz concedes that this Court can decide cases

without the benefit of considering both sides of the

issue and when it does so (which is extremely rare) its

decisions would obviously have to be followed by lower

courts. However, lower courts are not obligated to

follow dictum but only the holding. The “holding” of

this Court in Maryland v. Dyson, supra, would only

involve a search with respect to a vehicle that was

stopped by the police while it was being driven on a

public street.

This Court in Maryland v. Dyson, supra, quoted

from its earlier decision in Pennsylvania v. Labron,

518 U.S. 938, 135 L.Ed.2d 1031, 116 S.Ct. 2485 (1996),

but as Diaz told the Court of Appeal below, the case

involved a situation where the owner of the farm house

where the truck was parked gave permission to search.

In contrast, Diaz did not give consent to search.

With no United States Supreme Court decision

right on point, the California Attorney General

necessarily shifted to federal appellate court decisions

and relied heavily upon two Ninth Circuit decisions,

United States v. Hamilton, 792 F.2d 837 (9 Cir. 1986)

and United States v. Hatley, 15 F.3d 856 (9 Cir.

1994). The Hamilton case is not really helpful to the

State of California here. The Hamilton decision by

the Ninth Circuit was a split decision with two of the

three judges dissenting with respect to parts of the

majority’s decision. The case involved a warrantless

search of a motor home. The search was primarily

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upheld because the District Court concluded that

consent was given for the search. Accordingly, the

majority upheld the decision of the District Court

denying a motion to suppress evidence. After

discussing the primary basis for upholding the search

the majority of the Ninth Circuit then moved to

discuss the issue of whether the so called vehicle

exception to the Fourth Amendment would also have

justified the search. In suggesting an alternative

basis for also upholding the search, the majority in

United States v. Hamilton, supra, referred to this

Court’s decision in California v. Carney, 471 U.S. 386,

85 L.Ed.2d 406, 105 S.Ct. 2066 (1985). But California

v. Carney, supra, arguably is limited by its facts. The

search and seizure in California v. Carney, supra,

involved a public place, not a private driveway. The

majority in United States v. Hamilton, supra, even

an gt this aspect of Gelifernia ¥. Carney,

supra, that it involved a motor home parked in a

public place, not a private driveway.

It is interesting to note that Circuit Judge Hug

dissented. Justice Hug stated that he saw “a

significance difference in the expectation of privacy in

a motor home located in a public parking lot, such as

involved in California v. Carney . .. and a motor home

located in a private driveway... .” United States v.

Hamilton, 792 F.2d at 843 (Hug dissenting).

The Ninth Circuit in United States v. Hatley, 15

F.3d 856 (9 Cir. 1994) did hold that a warrantless

search can be conducted of a vehicle parked in a

private driveway. There was also a consent to search

but the District Court did rule that the consent was

improperly obtained. The District Court on the

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‘

alternative ground that no search warrant was needed

to search a car parked in a private driveway upheld

the search of the vehicle where 19 ounces of cocaine

were found in a closed container. The Ninth Circuit

relied upon its earlier decision in United States v.

Hamilton, supra. Diaz concedes that the Hatley case

is virtually the same as the instant case in terms of the

facts. Diaz simply disagrees with the holding in the

Hatley case.

Some courts have reached the opposite conclusion

or at least have suggested that the so called motor

vehicle exception should not apply when the vehicles

are parked on private driveways especially driveways

of residential property owned by the defendant

himself. One of the cases, recognized by the

California Attorney General, is United States v. Fields,

456 F.3d 519 (5™ Cir. 2006). In the Fields case the

defendant sought to have suppressed evidence

obtained from his vehicle which was parked on private

property. The District Court denied the motion to

suppress because the District Court found that the

search was conducted incidental to an arrest. The

Fifth Circuit upheld the search on this ground. The

defendant argued that the automobile exception

should not apply because his vehicle was parked on

private property. The Fifth Circuit stated, 456 F.3d at

524-525:

“... Thus, we have concluded that automobile

exception may not apply when a vehicle is

parked at the residence of the criminal

defendant challenging the constitutionality of

the search....”

;

The Fifth Circuit referred to its earlier decision in

United States v. Sinisterra, 77 F.3d 101, 104-05 (5"

Cir. 1996), where the Fifth Circuit then stated :

;

“Here, the-mall parking lot was not related to

anyone’s residence.”

United States v. Sinisterra, supra, involved the :

search of a van parked in a mall parking lot open to .

the public. The Fifth Circuit did conclude in the

Sinisterra case that the search was proper. The Fifth

Circuit distinguished the Carney case because in the

Sinisterra case “the mall parking lot was not related to

anyone’ residence... .”

OS nN Te oe. . ee ee

’

It is true that in the Fields case the court

commented that defendant Fields “did not regularly

use the duplex for residential purposes. ...” The Fifth

Circuit was apparently of the view that because

defendant Fields did not use his duplex as a residence

he might not be protected by the Fourth Amendment

but the Court went on to say that the vehicle was not

parked in the driveway. Rather, defendant Fields had

crashed his car into the side of the building. The Fifth

Circuit then stated,

“.. The Fourth Amendment concerns that arise

when the police search a car that is parked in

the driveway of a home, without a warrant, are

not present here....” Id. at 525.

Of course, in the instant case, Diaz did not crash

his car into the side of his residential property. It was

simply parked in the driveway. The California

Attorney General argued that it was important for

Diaz to have been the actual resident of the property

where his car was parked but that should not be the

deciding factor since it is undisputed that the property

was residential in nature and that he owned it and

that his car was parked on his privately owned

driveway. That should be sufficient to warrant Fourth

Amendment protection. Otherwise the Courts will get

into the complicated issue of actual residency. There

should simply be a bright line rule that if the vehicle

is parked on a private driveway on property consisting

of a residence owned by the defendant then probable

cause alone is not sufficient to justify a search of the

vehicle.

The Fourth Amendment recognizes the sanctity of

private property. Residential property has always

been considered to be at the heart of what the Fourth

Amendment was designed to protect.

Homes are afforded the maximum protection from

warrantless searches and seizures. As the Sixth

Circuit noted in United States v. Nelson, 459 F.2d 884,

885 (6 Cir. 1972), “the concept that a man’s home is

his castle is an ancient one. It has had a profound

effect upon our legal history. Its application to the

innocent and tlhe guilty, the rich and the poor is not

figment of the imagination of modern day judges.”

William Pitt, the Earl of Chatham, said,

“The poorest man may in his cottage bid

defiance to all the forces of the Crown. It may be

frail; its roof may shake; the wind may blow

through it; the storm may enter, the rain may

enter; but the King of England cannot enter - al]

his force dares not cross the threshold of the

ruined tenement!”. Miller v. United States, 357

U.S. 301, 307, 2 L.Ed. 2d 1332 1337, 78 S.Ct.

1190 (1958).

It is undisputed here that it was Diaz’ residential

property where his vehicle was parked and where it

was searched without permission, without a search

warrant, and without exigent circumstances. This

Court has never authorized searches under such

circumstances. It is about time to draw the line here

and allow the intrusion into the Fourth Amendment to

go no further. We do not want the exception to

swallow the rule. This would be a good place to make

such a point. This Court has never ruled on this

issue. On October 7, 2008 this Court conducted oral

argument in Arizona v. Gant, No. 07-542, which also

involved a contested search of a vehicle parked in a

private driveway. In the Gant case the Arizona

Supreme Court held the search and seizure by the

Tucson police violated the Fourth Amendment. The

police had already arrested Mr. Gant and placed him

in the back of the patrol car. The Arizona Supreme

Court held that this Court’s decision in New York v.

Belton, 453 U.S. 454, 69 L.Ed.2d 768, 101 S.Ct. 2860

(1981) did not apply. See State v. Gant, 216 Ariz. 1,

162 P.3d 640 (Ariz. 2007).

This Court granted certiorari, Arizona v. Gant, __

US. , 128 S.Ct. 1443 (2008) limited to the

following question:

“Does the Fourth Amendment require law

enforcement officers to demonstrate a threat to

their safety or a need to preserve evidence

related to the crime of arrest in order to justify

a warrantless vehicular search incident to

arrest conducted after the vehicle’s recent

occupants have been arrested and secured?

Hopefully for Petitioner Diaz, this Court will affirm

the Arizona Supreme Court and stop the movement to

eliminate the Fourth Amendment from vehicle search

litigation. If the Fourth Amendment is irrelevant

when a vehicle is involved, no matter what the

situation, this Court should say so. If not, this Court

should instruct the lower courts that there are still

some circumstances where search warrants must be

obtained.

The Court of Appeal below indicated that it

understood Diaz’ argument that the automobile

exception should not apply if a car is parked in a

private driveway rather than stopped by the police.

See page 3 of Court of Appeal Slip Opinion. The Court

of Appeal below then stated that it would not address

this issue because the structure in this case was not a

private home but rather only an apartment building

owned by Diaz and inhabited by others. The Court of

Appeal specifically stated that it need not express a

view about the relationship, if any, that there may be

between the concept of the curtilage around a private

home and the search of an automobile located within

the curtilage. Diaz respectfully disagrees and states

this is an appropriate case to decide this point because

if that situation is protected by the Fourth

Amendment this also should be protected because

courts should not be in the business of determining

where a particular home owner or apartment owner

lives at any point. For example, if Diaz lived part of

the time in his apartment building would that have

made a difference? It should make no difference

whether the property owner lives full time in his

residence, part of the time in his residence, or none of

the time. The rule of law should be the same. If the

vehicle is parked on a private driveway of a private

residence owned by the defendant that should be

sufficient and the Court of Appeal should have reached

the underlying issue.

This Court is in a position to rule on the issue and

should rule in favor of the Fourth Amendment. The

Court of Appeal cited California v. Acevedo, supra, but

neither side cited that in any lower court proceedings

and the case is not on point.

Like the other cases involving searches of vehicles

without search warrants, which Diaz has

distinguished from the unique facts of this case, the

decision of this Court in California v. Acevedo, 500

U.S. 565, 114 L.Ed.2d 619, 111 S.Ct. 1982 (1991),

which neither side cited in this case, but which the

Court of Appeal below cited on its own, is likewise

distinguishable from the unique facts of this case.

The vehicle that was searched in California v. Acevedo

without a search warrant was being driven away. The

relevant paragraph in the decision of this Court is as

follows:

“At 12:30 P.M., respondent Charles Steven

Acevedo arrived. He entered Daza’s apartment,

stayed for about 10 minutes, and reappeared

carrying a brown paper bag that looked full. The

officers noticed that the bag was the size of one

of the wrapped marijuana packages sent from

Hawaii. Acevedo walked to a silver Honda in

the parking lot. He placed the bag in the trunk

of the car and started to drive away. Fearing

the loss of evidence, officers in a marked police

car stopped him. They opened the trunk and the

bag, and found marijuana.” Id. at 567, 111S.Ct.

at 1984-1985.

The Acevedo case, therefore, is no different than

the numerous other cases cited by the prosecution

which did not involve a parked vehicle on a private

driveway of a residence owned by the defendant.

Certiorari should be granted to decide whether or

not under the facts of this case the warrant

requirement of the Fourth Amendment may be

ignored. As stated earlier, once it is established that

the car was parked on a private driveway owned by

the defendant at a residence owned by the defendant,

there should be no further inquiry as to whether or not

the defendant actually lived at the residence that he

owns. That further inquiry only complicates matters

and should not be necessary. The rule should simply be

that a parked vehicle on a parked driveway of a

private residence owned by the defendant requires the

obtaining of a warrant, whether or not the defendant

himself actually lives at the residence that he owns.

ee Ue Pe RO eee FEN ie oy ey < sap a

2. Certiorari Should Be Granted To Decide

The Constitutionality Of Penal Code

Section 12021, Subdivision (a)(1), As

Applied To A Convicted Felon For A Non

Violent Felony, In Light Of District of

Columbia v. Heller, _-: U.S. _ , 128 S.Ct.

2783 (2008).

While it is true Diaz pleaded guilty to violating

Penal Code Section 12021, subdivision (a)(1), he did so

on May 8, 2007 and was sentenced on September 5,

2007, the same day he filed his Notice of Appeal. This

Court did not grant certiorari in District of Columbia

v. Heller, supra, until November 20, 2007, long after

Diaz pleaded guilty and twoanda half months after he

was sentenced and filed his Notice of Appeal. See

District of Columbia v. Heller, 552 U.S.__, 128 S.Ct.

645 (2007). Diaz did have the right to appeal his

conviction and the Attorney General does not dispute

this. Diaz also seeks to bring before this Court the

issue of the Second Amendment because on June 26,

2008, after the Court of Appeal decided this case but

prior to its decision becoming final, this Court held

that the Second Amendment protects the individual’s

right to possess firearms. The specific holding of the

Unite States Supreme Court was that a _ local

ordinance of the District of Columbia, which prohibited

the private possession of a firearm in one’s own home,

violated the Second Amendment.

Under these circumstances Diaz ought to be able to

raise this issue now while his case is still pending on

direct appeal. If, in fact, the very penal statute to

which Diaz pleaded guilty is unconstitutional then this

‘

;

Court would have jurisdiction to reverse the judgment

of the Court of Appeal and order the case dismissed.

It is true that in Justice Scalia’s opinion for the five

to four majority in District of Columbia v. Heller

_ Justice Scalia referred to the possession of firearms by

felons but the reference to that situation must be

considered dictum. Justice Scalia stated,

“. . . Although we do not undertake an

exhaustive historical analysis today of the full

scope of the Second Amendment, nothing in our

opinion should be taken to cast doubt on long

standing prohibitions on the possession of

firearms by felons and the mentally ill... .”

This dictum should not be construed as supporting

a ban on the possession of firearms by all felons but

rather felons whose felonies involved acts of violence or

other conduct that would make the possession of a

firearm by such a felon a problem for the community.

There are many felonies that do not involve violence

and which should not be used to justify a prohibition

upon the possession of a firearm. For example, if a

person is convicted of making a false statement to a

federal official, as for example Martha Stewart, should

such a person be prohibited from possessing a firearm

for self defense. The opinion by Justice Scalia in the

Second Amendment case recognizes the importance of

self defense. Indeed, in this particular case Diaz, a

former Los Angeles Police Officer, was found to have

the guns in the trunk of his car. As stated, his car

was parked on his own private driveway at a residence

owned by him. Should not a person, even if a

convicted felon, have the right to self defense.’

The rights enumerated in the first ten

Amendments to the United States Constitution are

important and persons do not forfeit those rights by

virtue o1 certain conduct. For example, the right to a

jury trial cannot be forfeited if a person has suffered a

prior conviction for jury tampering. If one sells an

obscene book does that mean one forfeits his or her

right to be protected by the First Amendment with

respect to future sales of books. The answer is no.

Likewise, unless one is a dangerous felon (by virtue

of a prior conviction involving violence), one should not

lose his or her right to self defense. Convicted felons

are no more safe in our society than other persons.

They should have a right to self defense as any citizen,

absent a showing that the particular person should not

be trusted with a gun by virtue of prior conduct. To

the extent that Penal Code Section 12021, subdivision

(a1) purports to prohibit all convicted felons from

possessing guns, no matter what their convictions, the

statute must be considered to be in violation of the

“acond Amendment, as applied.

This issue is worthy of review by this Court and

this case presents this Court with an early opportunity

? While there is some reference to Diaz having previously pointed

a gun at someone else, that was not the basis for his conviction,

and should not be considered by this Court with respect to the

issue of whether Diaz can be convicted of a crime because he

happened to possess a gun in the trunk of his vehicle.

to provide its views on. the important issue of the

Second Amendment. |

CONCLUSION

For the foregoing reasons, Petitioner Joe Diaz

respectfully asks this Honorable Court to grant his

Petition for Writ of Certiorari and reverse the

judgment below.

Respectfully submitted,

Roger Jon Diamond

Counsel of Record

2115 Main Street

Santa Monica, CA 90405

(310) 399-3259

Counsel for Petitioner

APPENDIX A

IN THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA

SECOND APPELLANT DISTRICT

DIVISION EIGHT

No. B202017

Los Angeles County Super. Ct. No. BA292071

; [Filed May 28, 2008] ,

4 !

’ THE PEOPLE, )

5 )

Plaintiff and Respondent, )

q )

v. )

)

JOE DIAZ,

)

Defendant and Appellant. )

)

OPINION

APPEAL from a judgment of the Los Angeles

County Superior Court. Hank M. Goldberg and Steven

R. Van Sicklen, Judges. Affirmed.

Roger Jon Diamond for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R.

Gillette, Chief Assistant Attorney General, Pamela C.

Hamanaka, Assistant Attorney General, Scott A.

Taryle and Douglas L. Wilson, Deputy Attorneys

General, for Plaintiff and Respondent.

Appellant Joe Diaz was charged with two counts of

felon in possession of a firearm (Pen.Code, § 12021,

subd. (a)(1) (section 12021(a)(1)), based on two

handguns that were found in the trunk of his parked

car. The information also alleged two prior felony

convictions for the purpose of section 12021 and one

prior strike conviction pursuant to the “Three Strikes”

law. His motion to suppress evidence pursuant to

Penal Code section 1538.5 was denied. Pursuant to a

negotiated plea, he pled no contest to the twoprior

convictions and the low term of 16 months in prison on

one of the section 12021(a)(1) counts. The remaining

allegations were distnissed. He was sentenced in

accordance with the plea. He appealed. He has been

released on bail throughout the trial and appellate

proceedings.

Appellant contests both the legality of the search

and the constitutionality of section 12021(a)(1). We

find no error and affirm.

FACTS AT THE SUPPRESSION HEARING

On October 20, 2005, Police Officer Andrew

Gonzalez spoke to a man named Kenneth Jones

outside an apartment building. Jones said that, during

a verbal dispute with appellant about money,

i“

appellant pulled out a small handgun and pointed it at

him. Jones further stated that appellant then called

the police on his cell phone, walked to his parked car

in the driveway, opened the trunk, and put the

handgun inside.

A neighbor told Gonzalez he saw appellant point

the handgun at Jones and walk toward the car.

Appellant informed Gonzalez that he was a retired

police officer, although he had no credentials with him

to prove that. He said he did not live there but owned

the apartments as a rental property. He admitted to.

another officer, Sergeant Humphries, that there were

two handguns in the trunk of his car. Gonzalez

believed there was probable cause to believe the trunk

contained evidence of a felony, assault with a deadly

weapon. He searched the trunk and found two

firearms inside. Appellant was arrested.

Gonzalez testified during cross-examination that

appellant was 30 feet from his car when the officer

arrived.

DISCUSSION

1. The Search Issue

Appellant maintains that the warrantless search of

his car violated the Fourth Amendment because “the

police, without benefit of a search warrant, without

consent, and without exigent circumstances, search[ed]

a privately owned vehicle parked on a private

driveway of a private residence owned by the

defendant.”

“A defendant may seek further review of the

validity of a search or seizure on appeal from a

conviction in a criminal case notwithstanding the fact

that the judgment of conviction is predicated upon a

plea of guilty [or no contest].” (Pen.Code, § 1538.5,

subd. (m).)

The trial court denied the Penal Code section

1538.5 motion on the ground that probable cause alone

was sufficient, without exigent circumstances, based

on the automobile exception to the warrant

requirement.

In reviewing that ruling, we utilize the appropriate

standard (People v. Memro (1995) 11 Cal.4th 786, 846)

and apply the federal exclusionary rules for

interpreting the Fourth Amendment. (/n re Lance W.

(1985) 37 Cal.3d 873, 896)

The automobile exception permits the warrantless

search of a car if there is probable cause to believe the

car contains evidence of a crime, even though there are

no exigent circumstances that preclude obtaining a

search warrant. (Maryland v. Dyson (1999) 527 U.S.

465, 466-467; see also United States v. Ross (1982) 456

U.S. 798, 825.)

Appellant argues that the exception should not

apply if a car is parked in a private driveway rather

than stopped by the police.

The protection of the Fourth Amendment extends

to the curtilage of a private home, which is the land

that surrounds and is associated with the home.

(Oliver v. United States (1984) 466 U.S. 170, 180

[curtilage is the area to which extends the intimate

activity associated with the sanctity of the home and

the privacies of life].) We need not address the

intersection of the protection afforded to a home and

- its curtilage, on the one hand, and the automobile

exception, on the other. The structure in this case was

not a private home but rather an apartment building

owned by appellant and inhabited by others. We

therefore need not, and do not, express a view about

the relationship, if any, that there may be between the

concept of the curtilage around a private home and the

search of an automobile located within the curtilage.

In this case, the uncontradicted evidence is that the

officers were told that appellant had pointed a gun at

Jones during a dispute between the two men and that

Jones saw appellant put the gun in the trunk of his

car, the latter being a fact that appellant’s own

statement confirmed. By any measure, this constituted

probable cause to search the trunk of the car. This is

all that was required. (California v. Acevedo (1991)500

U.S. 565, 569.)

We therefore find no error in the denial of

appellant’s suppression motion.

2. The Constitutionality of Section 12021(a)(1)

Defense counsel recognized below that appellant’s

no contest plea precluded raising any issue on appeal

other than the legality of the search. Even so, in an

asserted attempt to preserve the issue, the briefing

adds “a long shot argument,” which is that appellant’s

conviction for violating section 12021(a)(1) violates his

Pe ee ee ee ee ee ee

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Second Amendment right to bear arms.’ We find that

the no contest plea and failure to obtain a certificate of

probable cause preclude consideration of this issue.

(Pen.Code, § 1237.5; People v. Buttram (2003) 30

Cal.4th 773, 780.)

DISPOSITION

The judgment is affirmed.

FLIER, J.

We concur:

COOPER, P.J., and RUBIN, J.

* Section 12021(a)(1) provides: “Any person who has been

convicted of a felony under the laws of the ... State of California ...

and who owns, purchases, receives, or has in his or her possession

or under his or her custody or control any firearm is guilty of a

felony.”

? In a footnote at the end of his reply brief, appellant notes that a

petition for writ of certiorari was granted on February 25, 2008,

in Arizona v. Gant, No. 07-542.The Supreme Court’s review will

be limited to this question: “Does the Fourth Amendment require

law enforcement officers to demonstrate a threat to their safety or

a need to preserve evidence related to the crime of arrest in order

to justify a warrantless vehicular search incident to arrest

conducted after the vehicle’s recent occupants have been arrested

and secured?”"(Arizona v. Gant (2008) --- U.S. ---- [128 S.Ct. 1443].)

Appellant suggests that we wait to file our opinion until that case

is decided. We decline to do so.

a ie

a ase ee ee

‘

APPENDIX B

IN THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA

SECOND APPELLANT DISTRICT

| DIVISION EIGHT

| No. B202017

| Los Angeles County Super. Ct. No. BA292071

: [Filed June 18, 2008]

THE PEOPLE,

Plaintiff and Respondent,

JOE DIAZ,

Defendant and Appellant.

ORDER MODIFYING OPINION :

NO CHANGE IN JUDGMENT |

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ge Ae Fe a | Le Oe ae Ady Fee ee eR oe gy es a eee

Good cause appearing, on the court’s owe motion,

the opinion herein, filed on May 28, 2008, is modified

as follows:

The sentence that begins on page 2, line 6 with the

words “Pursuant to a negotiated plea, he. pled no

contest to one of the section 12021(a)(1) counts and

admitted the two prior convictions, in exchange for the

low term of 16 months in prison.”

Modification does not affect the judgment.

/s/ Cooper, P.J.

COOPER, P.J.

/s/ Rubin, J.

RUBIN J.

/s/ Flier, J.

Flier, J.

;

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‘

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‘

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Pee ee OP Pe ee ee ye eS Ce eee ee

q ee Sota os in a i

APPENDIX C

IN THE SUPREME COURT OF CALIFORNIA

No. S164904

Court of Appeal, Second Appellate District,

Div. 8 - No. B202017

[Filed September 10, 2008]

THE PEOPLE,

Plaintiff and Respondent,

JOE DIAZ,

Defendant and Appellant.

ee ed

EN BANC

The Petition for review is Denied.

_ GEORGE __

Chief Justice

SET ee eT Se aE ee FETE TN ae SE NE ee eR, See ee

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.