Opposition Brief — Michigan v. Burbank

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No. 84-803 ~~” SUPREME COURT. US.

IN THE Sepreme Court, US.

SUPREME COURT OF THE UNITED STATES FILED

October Term, 1984 EC 31 4

PAAERPEE? | BTEVES

GERK

THE PEOPLE OF THE STATE OF MICHIGAN,

Petitioner,

vs.

CAROLIN BURBANK,

Respondent.

ON PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF FOR RESPONDENT IN OPPOSITION

‘ F. RANDALL KARFONTA

Attorney for Respondent

One Kennedy Sauare

Suite 1930

Detroit, Michiaan 48226

Telephone: (313) 962-7210

QUESTION PRESENTED

DOES THE FOURTH AMENDMENT PROHIBIT THE PERSONAL

SEARCH OF A CITIZEN IN A PRIVATE RESIDENCE WHERE

(1) THE SEARCH WARRANT DOES NOT AUTHORIZE THE

SEARCH OF THAT CITIZEN, (2) WHERE THE SEARCHING

OFFICER DID NOT READ THE SEARCH WARRANT, (3)

WHERE THE OFFICER DID NOT TESTIFY TO A SEARCH

FOR REASONS OF SAFETY , AND (4) WHERE THE OFFI-

CER DID NOT TESTIFY TO A SEARCH SUSPECTING

CONTRABAND?

(i)

TABLE OF CONTENTS

QUESTION PRESENTED POCO DD ODS COTCEDERSéSCe

INDEX OF AUTHORITIES 6665668600000 2 4045006000

OPINIONS BELOW COREPECRS CR CdD CERES O So ES ED OOS

JURISDICTION eee, Sere ee re ae ree ee

CONSTITUTIONAL PROVISIONS INVOLVED oe eeeccese

COUNTERSTATEMENT OF THE CASE Coccccceccccccce

REASONS FOR DENYING THE WRIT C Cc ccccccccccccs

CONCLUSION CORRODE EEOD CODCOD NEE USCCDACbbRCS

RELIEF REQUESTED PO CCOC OCR OO CODE EOO CO SEéOOObCS

CERTIFICATE OF SERVICE COococecoscccesoscecoe

(ii)

ee ): — ee 7

TABLE OF AUTHORITIES

Cases

Dunaway v. New York, 442 U.S. 200 (1979)

Segura v. United States, C.8% (1984)

Sibron v. New York, 392 U.S. 40 (1968)

Stanford v. Texas, 379 U.S. 476 (1965)

State v. Broadnax, Wash., 654 P.2d 96 (1982)

Terry v. Ohio, 392 U.S. 1 (1968)

United States v. Di Re, 332 U.S. 581 (1947)

United States v. Leon, U.S. (1984)

Ybarra v. Illinois, 444 U.S. 85 (1979)

No. 84-803

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1984

THE PEOPLE OF THE STATE OF MICHIGAN,

Petitioner,

vs.

CAROLIN BURBANK,

Respondent.

/

BRIEF FOR RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the Michigan Court of Appeals is unreported

as yet. (Pet. App. A) The Order of the Michigan Supreme Court is

unreported. (Pet. App. B)

JURISDICTION

Respondent accepts Petitioner's statement of jurisdic-

tion.

CONSTITUTIONAL PROVISIONS INVOLVED

The Fourth Amendment to the United States Constitution

provides:

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, sup-

ported by oath or affirmation, and parti-

cularly describing the place to be searched,

and the persons or thinas to be seized.

The Fourteenth Amendment to the United States Constitution

provides, in pertinent part:

-+-No state shall make or enforce any law

which shall abridge the privileges or

immunities of citizens of the United

States; nor shall any state deprive any

person of life, liberty, or property,

without due process of law; nor deny to

any person within its jurisdiction the

equal protection of the laws.

COUNTERSTATEMENZ OF THE CASE

Defendant was charged with possession with intent to

delivery methamphetamine. The preliminary examination and a

subsequent evidentary hearina comprise the record in this case.

Carolin Burbank was present in a home subject to a

search warrant for controlled substances.

When police officer Charnitta Perdue entered the

dwelling, Carolin Burbank was in the living room facing the

wall:

Q Do you know whether that search warrant

authorized you to search individuals on

the premises?

A I didn't read the search warrant to know

what was in it. (Prelim. Exam. 23)

The officer noted something in Carolin Burbank's

brassiere.

Q What did those bulges look like?

A I couldn't really say what it looked like,

It was something in there that didn*t belong

there. (Prelim. Exam. 25) (Emphasis added)

. . 7 .

A It looked like something that she had

just stuck in her brassiere. What, I don't

know. (Prelim. Exam. 25-26)

Alone with Carolin Burbank, Officer Perdue took

Carolin Burbank to a room and removed the items.

Officer Perdue gave no testimony regarding fear of

Carolin Burbank, any suspicion regarding weapons, nor a need for

protection:

Q You didn't ask anybody to assist you because

you were afraid; isn't that right?

A That's correct. (Evid. Hearing 14)

Officer Perdue gave no testimony that she thought the

“something” was contraband. She gave no testimony that she had

personal experience regarding concealed contraband.

— Naas

REASONS FOR DENYING THE WRIT

The Fourth Amendment prohibits the personal

search of a citizen in a private residence

where (1) the search warrant does not autho-

rize the search of that citizen, (2) where

the searching officer did not read the search

warrant, (3) where the officer did not testi-

fy to a search for reasons of safety, (4)

where the officer did not testify to a search

suspecting contraband.

A.

Individualized cause to search a citizen is

required.

The protections of the Fourth and Fourteenth Amendments

do not give way to permit evidence searches of persons who, at

the commencement of a search, are on compact premises subject

to a search warrant.

In Ybarra v. Illinois, 444 U.S. 85 (1979), this Court

reaffirmed this proposition. 444 U.S. at 94. In that case,

the State sought to apply the Terry v. Ohio, 392 U.S. 1 (1967),

reasonable belief or suspicion standard to aid the evidence-

gathering function of the search warrant. This Court rejected

the proposed constitutional infringement, saying:

The long prevailing constitutional standard

of probable cause embodies the best compro-

mise that has been found for accomodating

the often opposing interests’ in safeguard-

ing citizens from rash and unreasonable

interferences with privacy and in seeking

to give fair leeway for enforcing the law

in the community's protection. 444 U.S. at

95.

In Ybarra the State failed in its attempt to bypass

the probable cause standard. This Court refused to permit

searches of such persons “at least where police have a reason-

able belief that such persons are connected with drug traffick-

ing and may be concealing or carrying the contraband." Id. at

94.

Here, the State seeks review of a proposition far

beyond that already rejected in Ybarra.

The rule sought by the State eliminates the following

constitutional protections:

~ iss

(1) Probable cause to believe that the

persons to be searched are connected with

the crime.

(2) Reasonable belief that the person to

be searched is danqerous.

(3) This Court's emphasis on the rule of

the macistrate in directing who will be

searched pursuant to a warrant. See, e.a.,

United States v. Leon, U.S.

(1984).

(4) The basic tenet that merely associating

with a person suspected of criminal acti-

vity does not strip away the protections

of the Fourth Amendment. State v. Broadnax,

Wash., 654 P.2d 96 (1982) (search of pri-

vate residence where narcotics had probably

been sold within the preceding 24 hours;

held, regardless of the setting, constitu-

tional protections are held individually).

In reaffirming the probable cause requirement, Ybarra recoqnized

that over 30 years ago the Court rejected a similar argument in

United States v. DiRe, 332 U.S. 581 (1947).

Similarly, in Dunaway v. New York, 442 U.S. 200 (1979),

where seizure was the issue, the Court declined the State's

invitation to dispense with the probable cause requirement:

The requisite balancing has been performed

in centuries of precedent and is embodied

in the principle that seizures are reason-

able only if supported by probable cause.

Similarly, it seems clear that the Terry limits upon

the intensity of the search should generally be applicable in

this situation as well:

Under that doctrine a law enforcement

officer for his own protection and safety

may conduct a pat down to find weapons

that he reasonably believes or susvects

are then in the possession of the person

he has accosted. Ybarra v. Illinois, 444

U.S. at 93. See also Sibron v. New York,

392 U.S. 40, 64 (1968).

The operating principle is the sound one of requiring

individualized justification before qovernment interfers with

the right to privacy, including (1) articulated reasons for

initiating a search of a citizen, and (2) articulated reasons

for intensifying the search.

For example, here Officer Perdue, the Officer who con-

ducted the search of Carolin Burbank, (1) had not read the

—— =—

search warrant, (2) gave no testimony that this search was for

self protection, (3) gave no testimony that she thought the items

might be contraband, and (4) testified simnly that “I couldn't

really say what it looked like." (Prelim. Fxam. 25)

The present rule protects a doctor making a house call,

a plumber, a neichbor, a television repairman, a school teacher

discussino the proaress of children, and all others when there

is not demonstrable nexus with danger or crime.

The principle which emerges from the decisiorsis that

it is not constitutionally permissible to search 4 person, not

connected in any way with the place being searched, who merely

happens to be uvon the premises and who is not mentioned or

Gescribed in the affidavit of probable cause upon which the

warrant was issued. Rather, the law reauires that there be

probable cause to believe that such persons are themselves

participating in criminal activity, or, somewhat more precisely,

that there be vrobable cause that evidence which might be con-

cealed or destroyed is to be found unon the person searched.

This is certainly correct, for a broader power to search persons

vresent at the vlace to be searched would provide for a ceneral

search or one conducted on mere suspicion.

General Warrants are prohibited.

Here, someone in the house alleqedly sold heroin to an

informant.

The officer who searched Carolin Burbank did not read

the search warrant.

Here, the officer iqnored the search warrant. The

requirement of particularity is to qive direction to police.

The Fourth Amendment protects persons. The requirement

of individualized cause to search a citizen cannot be deleted

from it in the catecorical fashion sought here. If police can

search any place or any person found on premizres during execution

of a search warrant without regard to the specific directions in

i

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~ ~~

the warrant, then they are effectively operating under a qeneral

warrant and usurping the function of the macistrate.

Specificity is the primary buffer placed between qovern-

mental intrusion and the individual. In discussino the Fourth

Amendment in Stanford v. Texas, 379 U.S. 476 (1965), Justice

Stewart, expressina the unanimous view of the Court, wrote:

The hated writ of assistance had qiven

Customs officials blanket authoritity

to search where they pleased for aoods

imported in violation of the British tax

laws. They were denounced by James

Otis as “the worst instrument of arbi-

trary power, the most destructive of

Enaqlish liberty, and the fundamental

principles of law, that ever was found

in an Fnglish law book,” because they

placed "the liberty of every man in the

hands of every petty officer." 379

U.S. at 481-482.

Finally, the preferred status afforded privacy in the

home does not evaporate upon initial entry:

The home is sacred in Fourth Amendment

terms not primarily because of the

occupants possessory interest in the

premises, but because of their privacy

interests in activities that take

place within. Secura v. United States,

U.S. (1984).

The vrimacy cf these protections is apparent from the

lancuace of the Fourth Amendment itself, the richt of the people

to be secure in their persons, houses ... aaainst unreasonable

searches and seizures, shall not be violated[.)

A search warrant for a place does not permit police

searches of individuals absent articulated cause.

CONCLUSION

The principles involved herein are matters well settled

by recent and time honored case authority. The decision below

was required by the record in this case. It was reached using

correct lecal principles, is not in conflict with any other

decision, and is dependent solely upon its own uniaue facts.

RELIEF REQUESTED

The petition for a writ of certiorari should be denied.

-6-

Respectfully submitted,

° 713)

Attorney for Res

One Ken Square

Suite 1930

Detroit, Michiqan 48226

Dated:

-7-

NO. 64-803

In THE

SU°REME COURT OF THE UNITED STATES

October Term, 1984

THE PEOPLE OF THE STATE OF MICHIGAN,

Petitioner,

vs.

CAROLIN BURBANK,

Respondent.

CERTIFICATE OF SERVICE

F. RANDALL KARFONTA, in compliance with Supreme Court

Rule 26.4(a) and 26.5(b) does hereby certify that he is «

menber of the Bar of the Supreme Court and that on the 25”

Gay of December, 1984, Gid deposit in the United States mail

with postage fully prepaid, one (1) copy of the Brief for

Respondent In Opposition addressed to Timothy A. Baughman,

Principal Attorney, 12th Floor, 1441 St. Antoine, Detroit,

Michigan 48226.