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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2009

## Text

Supreme Court of the United States

JOE DIAZ,
Petitioner,
v.
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

i
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).

il
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.

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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

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APPENDIX:
Appendix A: Court of Appeal Opinion
Se ere la

Appendix B: Court of Appeal Order Modifying
Opinion, No Change in Judgment

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4 Appendix C: California Supreme Court en banc
% denial of petition for review
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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

1
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.

2
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

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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

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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.

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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

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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:

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“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.

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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

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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.”

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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.

14

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.

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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....”

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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 :

4
;

“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... .”

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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

19

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]

20

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

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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

22

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

23

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.

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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

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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

26

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.

27

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

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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.

P,
Zi

2a
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,

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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.”

4a

“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

5a

[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

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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.

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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,
v.
JOE DIAZ,

Defendant and Appellant.

ORDER MODIFYING OPINION :
NO CHANGE IN JUDGMENT |

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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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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,
v.

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0325%3A1. Public record. Not legal advice.