# Opposition Brief — Michigan v. Burbank > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1727%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1985 - **Citation:** 469 U.S. 1190 ## Text WU a = araw. /2 ib hig : ORIGINAL idl . t eC 3180 | nm, \ OFFICE OF TWE CLERK, 2 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 bee rye Oe ~ ~~ 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1727%3A2. Public record. Not legal advice.