Petition for Writ of Certiorari — Illinois v. Fogel

84-8940

No.

IN THE

SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1984

STATE OF ILLINOIS,

Petitioner,

vs.

THOMAS FOGEL,

Respondent.

PETITION FOR A WRIT

OF CERTIORARI TO THE

APPELLATE COURT OF

ILLINOIS, FIRST DISTRICT

NEIL F. HARTIGAN

Attorney General

State of Illinois

188 West Randolph Street

Suite 2200

Chicago,Illinois 60601

Attorneys for Petitioner.

RICHARD M. DALEY

State's Attorney

County of Cook

500 Richard J. Daley Center

Chicago, Illinois 60602

MICHAEL E. SHABAT, *

KEVIN SWEENEY,

Assistant State's Attorneys

Of Counsel.

*Attorney of Record

(312) 443-5496

a wv

QUESTIONS PRESENTED

he

Whether this case involves an issue

also presented in the pending case of

Oklahoma v. Castleberry (No. 83-2126, cert.

granted, No. 5, 1984).

y

Whether the automobile exception to

the search .warrant requirement applies to

the search of a vehicle which has just been

parked and left by a suspect.

11

TABLE OF CONTENTS PAGE

Ed”, 1

Opinions Below .

De ke bebe Sete eases 4

Constituional Provision Involved....... 5

ee Seem COBO... wc ccc ccc cee. 6

Reasons for Granting the Writ.......... 9

Ms

THIS CASE PRESENT AN ISSUE

AL3© INVOLVED IN OKLAHOMA V.

CASTLEBERRY, NOW PENDING BEFORE

THIS COURT

111i

if.

THE AUTOMOBILE EXCEPTION TO

THE SEARCH WARRANT REQUIREMENT

APPLIES TO THE SEARCH OF A

VEHICLE WHICH HAS JUST BEEN

PARKED AND LEFT BY A SUSPECT....

Le ee eee ae

Appendices

A-- Opinion of the Appellate

Court of Illinois, first District

in People v. Thomas’ Folgel

(Unpublished Order, No. 83-1517,

a. Den Aa ae cweeesenas

B-- Order of the Illinois

Supreme Court denying leave to

appeal in People v. Thomas Fogel

(No. 60572, October 2, 1984).....

22

la

iv

TABLE OF AUTHORITIES

Caese:

Cady v. Dombrowski, 413 US. 433,

96 S.Ct. 2523, 37 L.Ed.706 (1973)......... 14,16

Caldwell v. Lewis, 417 U.S. 583,

94 S.Ct. 2464, 41 L.Ed.2d 325 (1974)...... 15

Castleberry v. State, 678 P.2d 720

(ORLA. CLAM. L9IGE).. ccc cccccccccencsesecses 10

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

90 S.Ct. 1975, 26 L.Ed.2d 419 (1970)...... 14,17

Colorado v. Bannister, 449 U.S. l,

101 S.Ct. 42, 66 L.Ed.2d 1 (1980)......... 14,15

Coolidge v. New Hampshire, 403 U.S.

443,91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).. 18

Michigan v. Thomas, 458 U.S. 259,

102 S.Ct. 3079, 73 L.Ed.2d 750 (1982)..... 14

Oklahoma v. Castleberry, (No. 83-2126,

cert. granted, Nov, 3, 1984)... ccccececees 9

Texas v. White, 423 U.S. 67,

96 S.Ct. 304, 46 L.Ed.2d 209 (1975)...... 14,15

United States v. Chadwick, 433 U.S. 1,

97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) ... 16

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

102 S.Ct. 2157, 72 L.Ed.2d 572 (1982).4

Statute:

Ill. Rev. Stat. 1971, ch. 38, sec.108-3.. 20

1

No.

IN THE

SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1984

STATE OF ILLINOIS,

Petitioner,

vs.

THOMAS FOGEL,

Respondent.

PETITION FOR A WRIT

OF CERTIORARI TO THE

APPELLATE COURT OF

ILLINOIS, FIRST DISTRICT

Petitioner, the State of Illinois,

respectfully prays that a Writ Of Cer-

tiorari issue to review the judgment and

opinion of the Appellate Court of Illinois,

First District, which was entered on June

29, 1984.

Aen ae > en

OPINION BELOW

The unpublished opinion and order of

the Appellate Court of Illinois, First

District is reproduced as Appendix A to

this Petition. The order of the Illinois

Supreme Court denying leave to appeal from

that decision is reproduced as Appendix B

to the Petition.

JURISDICTION

The opinion, order and judgment of the

Appellate Court of Illinois, First District

was entered on June 29, 1984. The order of

the Illinois Supreme Court denying leave to

appeal from that decision was entered on

October 2, 1984. This Petition for a Writ

of Certiorari is filed within 60 days of

that date. United States Supreme Court

Rule 20(1). The jurisdiction of this Court

in invoked under 28 U.S.C. §1257(3).

CONSTITUTIONAL PROVISION AT ISSUE

UNITED STATES CONSTITUTION - FOURTH AMENDMENT:

The right of the People to be secure

in their persons, houses, papers and ef-

fects, 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 person or things to be

seized.

STATEMENT OF THE CASE

Certain police officers discovered 68

pounds of marijuana during a search of the

automobile of respondent Thomas Fogel.

After a hearing on respondent's motion to

suppress, the trial court suppressed that

evidence. (R. 58) The Appellate Court of

Illinois, First District, affirmed the

order suppressing evidence and the Illinois

Supreme Court denied leave to appeal.

(Appendices A and 8B) The State of

Illinois now seeks review by this Court.

On December 27, 1982, Chicago Police

Officer Robert Smith obtained a_ search

warrant for respondent's person and for

respondent's house in Glenview, Illinois.

(R. 69) The affidavit for the warrant

recited that a reliable informant had

helped respondent carry two large bags of

marijuana from the trunk of a car into the

house. (R. 70-71)

On the afternoon of December 28,

Officer Smith and other Chicago Police

officers arrived at respondent's house.

Respondent was not there, but a man inside

the house refused entry to the officers, so

they had to force their way in. (R. 18-19)

The officers searched the house for an hour

and a half, but discovered nothing. (R.

20)

As the officers were finishing their

search, respondent and his wife arrived at

the door of the house. The officers stop-

ped them, and saw that respondent's car,

which had not been present when the of-

ficers arrived, was parked 20 to 25 feet

away in the driveway. (R. 21-22, 25)

Respondent was searched, and two bags of

marijuana and a bag on cocaine were re-

covered from his briefcase. (R. 22-23)

$2,865 in cash was recovered from the purse

of respondent's wife. (R. 28)

Officer Smith then took the keys to

the car from respondent and searched the

vehicle. (R. 25) In the trunk he found

two large plastic trash bags filled with

marijuana. (R. 25-26)

After laboratory test results were

returned, respondent was charged with

possession of marijuana with intent to

deliver and with possession of cocaine.

(R. 75-77) The trial court suppressed the

evidence recovered from the trunk of re-

spondent's automobile, and the State ap-

pealed from that decision. (R. 95)

REASONS FOR GRANTING THE WRIT

THIS CASE PRESENTS AN ISSUE

ALSO INVOLVED IN OKLAHOMA V\V.

CASTLEBERRY, NOW PENDING BEFORE

THIS COURT.

On November 5, 1984, this Court grant-

ed certiorari in a case involving the same

question as that presented in this matter.

Oklahoma v. Castleberry, (No. 83-2126,

cert. granted, Nov. 5, 1984). That ques-

tion is whether the automobile exception to

the search warrant applies when police

officers arrest a suspect outside a parked

car and the officers have probable cause to

search the vehicle.

In Castleberry, the officers, acting

on a tip, arrested a suspect on drug

charges. At the time of the arrest the

suspect threw a small object into the

interior of his parked autombile and locked

the car door. The officers, using the

suspect's keys, searched the interior of

the automobile and the trunk, and recovered

narcotics. The Oklahoma Court of Criminal

Appeals ruled that a warrant had been

necessary to justify a search of the auto-

mobile. Castleberry v. State, 678 P.2d 720

(Okla. Crim. 1984). This Court accepted

jurisdiction, partly in order to decide if

the search fell within the automobile ex-

ception to the search warrant require-

ment.

This Illinois case present similar

facts and legal issues. Here also the

police officers encountered a suspect

outside his parked autombile. Here also

the officers lawfully arrested the suspect

and used the suspect's keys to search the

10

ee ewe ew

trunk of the vehicle. Here also contra-

band was recovered from the truck. Here

also the state reviewing Court held that

the search of the trunk was unlawful as it

had been performed without a warrant.

Therefore, certiorari may be granted

in this case without consuming a large

amount of this Court's scare time and

resources. This case could either be

consolidated with Castleberry or be given a

summary disposition after Castleberry is

decided.

11

II.

THE AUTOMOBILE EXCEPTION TO

THE SEARCH WARRANT REQUIREMENT

APPLIES TO THE SEARCH OF A

VEHICLE WHICH HAS JUST BEEN

PARKED AND LEFT BY A SUSPECT.

It is clear that under the automobile

exception to the search warrant requirement

the police may perform a warrantless search

of a vehicle they have stopped on a high-

way. It is less clear whether that ex-

ception can apply to a parked automobile.

This Court should grant certiorari in order

to resolve this important Fourth Amendment

issue.

Here, the police were performing a

lawful search of respondent's house when

respondent unexpectedly drove up in his

automobile and parked it. The officers,

who had a search warrant for respondent's

12

person, searched respondent and found

cocaine and marijuana. At that point the

officers had both probable cause to arrest

respondent and probable cause to search the

automobile. Using respondent's keys, the

officers searched the trunk and recovered

68 pounds of marjuana.

After the officers had arrested re-

spondent, there were two things they could

have done with respondent's automobile.

The first would have been to impound the

vehicle pending an application for a search

warrant. The second was to perform an

immediate search of the vehicle. The

decisions of this Court indicate that the

officers acted correctly in deciding to

make an immediate search. Under the auto-

mobile exception to the search warrant

requirement, officers with probable cause

to search a vehicle may perform an im-

13

mediate search, and do not have to impound

the vehicle and apply for a warrant.

Numerous decisions of this Court hold

that when police officers encounter an

automobile and have probable cause to

search, they may search the vehicle without

a warrant. Michigan v. Thomas, 458 U.S.

259, 102 $.Ct. 3079, 73 L.Ed.2d 750 (1962);

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

§.Ct. 2157, 72 L.Ed.2d 572 (1982); Colorado

v. Bannister, 449 U.S. 1, 101 S.Ct. 42, 66

L.Ed.2d 1 (1980); Texas v. White, 423 U.S.

67, 92 S.Ct. 304, 46 L.Ed.2d 209 (1975);

Cady v. Dombrowski, 413 US. 433, 93 S.Ct.

2523, 37 L.Ed.706 (1973); Chambers v.

Maroney, 399 U.S. 42, 90 S.Ct. 1975, 28

L.Ed.2d 419 (1970).

Thus there is a well established

automobile exception to the search warrant

requirement. Usually that exception is

applied to moving vehicles stopped by the

14

police on a highway, but the exception is

not restricted to such cases. In the

Bannister decision a warrantless search of

an automobile was held valid, even though

the vehicle was standing at a gas station

when the officer approached it. Colorado

v. Bannister, 449 U.S. 1, 101 S.Ct. 42, 66

L.Ed.2d 1 (1980). In White the automobile

exception to the search warrant requirement

was applied after a vehicle was stopped at

a drive-in window of a bank. Texas v.

White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.

2d 209 (1975). In Caldwell, a warrantless

exterior search of an automobile was held

proper after the car had been towed from a

public parking lot. Caldwell v. Lewis,

417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325

(1974). And in Cady a warrantless search

of an automobile was held valid after the

vacant vehicle had been towed following an

15

accident. Cady v. Dombrowksi, 413 U.S.

433, 93 S.ct. 2523, 37 L.Ed.2d 706 (1973).

By those standards the search in this

case fell within the automobile exception

to the search warrant requirement. The

officers did not enter into respondent's

property to search his automobile, but

instead entered to execute a lawful search

warrant for the house. The officers to

not seek out respondent's car, but instead

the vehicle unexpectedly arrived at the

scene. The officers did not have probable

cause to search the automobile until short-

ly before that search was performed. The

automobile exception to the search warrant

requirement exists because of the inherent

mobility of vehicles and because of the

diminished expectation of privacy which

surrounds them. United States v. Chadwick,

433 U.S. 1, 12, 97 S.Ct. 2476, 2484, 53

16

L.Ed.2d 538, 549 (1977). But, as stated in

Chadwick, that exception applies even after

the vehicle had been immobilized. There-

fore when police officers unexpectedly

encounter an automobile and have probable

cause to search it, they may ferform a

immediate search even if the vehicle is

parked and the owner had stepped out of it.

Such a search is reasonable under the

Fourth Amendment because impounding the

vehicle pending an application for a war-

rant would involved a greater intrusion on

the owner's privacy rights than an im-

mediate search. As this Court said in

Chambers v. Maroney, 399 U.S. 42, 52, 90

S.Ct. 1975, 1981, 26 L.Ed.2d 419 (1970)

For constititional pur-

poses, we see no difference

between on the one had seizing

and holding a car before pre-

senting the probable case to a

magistrate and on the other hand

carrying out an immediate search

17

without a warrant.

If the officers had impounded respondent's

automobile pending an application for a

warrant, the car would either have been

towed or the police would have posted guard

on it, probably overnight. This would

have created a greater intrusion on re-

spondent's privacy rights than the war-

rantless search. Therefore, a warrantless

search was reasonable under the circum-

stances of this case.

It is true that in the Coolidge deci-

sion four justices of this Court indicated

that police officers may not enter onto a

suspect's property to search an automobile

when there is time and opportunity to seek

a Warrant. Coolidge v. New Hampshire, 403

U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564

(1971). Here, however, the officers did

not enter into respondent's property to

18

search his vehicle, but to execute a lawful

warrant to search respondent's house and

person. The automobile was not present

when the officers arrived, but appeared

without warning while the officers were

searching the house. After the officers

first saw the automobile, they could have

obtained a warrant only after impounding

at.

The fact that the officers did obtain

a search warrant for respondent's house and

person shows that the officers were not

trying to evade the search warrant require-

ment. Moreover, the officers were justi-

fied in not seeking authority to search

respondent's automobile at the time they

applied for the warrant. Although the

informant had seen respondent removing a

large quantity of marijuana from the car

the previous day, when the officers applied

19

for the warrant they had no information

indicating that nay contraband was still in

the vehicle. (R. 70-71) Also, neither

the affidavit nor anything else in the

record indicates that the informant sup-

plied a description of the automobile. (R.

70-71) The application for the warrant had

to give both a specific description of the

place to be searched and information indi-

cating that evidence was presently to be

found there. Ill. Rev. Stat. 1971, ch.

38, sec. 108-1. When Officer Smith applied

for a search warrant, such information was

not available concerning respondent's auto-

mobile.

But after respondent was searched and

placed under arrest, there was probable

cause to search his vehicle. The large

quantity of marijuana seen by the informant

had not been found in the house. The

previous day respondent had transported the

20

marijuana to the house in his car, and

respondent had just arrived at the house in

his car again. Smaller quantities of

cocaine and marijuana were found on re-

spondent's person, and several thousand

dollars were found in his wife's purse.

Thus the officers searched respondent's

automobile as soon as they acquired pro-

bable cause to believe that it contained

contraband.

Here the officers, after they acquired

probable cause, searched an automobile

which had just been parked and left by

respondent. This Court should accpet

jurisidiction in order to resolve the

important question of whether the auto-

mobile exception to the search warrant

requirement applies to such searches.

CONCLUSION

For the foregoing reasons, the State

of Illinois respectfully requests that a

writ of certiorari issue to review the

judgment of the Apellate Court of Illinois,

First District.

Respectfully submitted,

NEIL F. HARTIGAN

Attorney General

State of Illinois

188 West Randolph Street

Suite 2200

Chicago, Illinois 60601

Attorneys for Petitioner.

RICHARD M. DALEY

State's Attorney

County of Cook

500 Richard J. Daley Center

Chicago, Illinois 60602

MICHAEL E. SHABAT, *

KEVIN SWEENEY,

Assistant State's Attorneys

Of Counsel.*

*Counsel of Record

(312) 443-5496

22

«ot antl

APPENDICES

APPENDIX A

Opinion of the Appellate Court of

Illinois, First District in People v.

Thomas Fogel, (Unpublished Order, No.

83-1517, June 29, 1984).

June 29, 1984

83-1517

IN THE APPELLATE COURT OF ILLINOIS

FIRST JUDICIAL DISTRICT

PEOPLE OF THE

STATE OF ILLINOIS,

Plaintiff-Appellant,

Appeal from the

Circuit Court of

Cook County.

vs.

Honorable

Paul A. O'Malley.

Judge Presiding.

THOMAS FOGEL,

Defendant~-Appellee.

~_—_— OO —— i—~—

ORDER DISPOSING OF APPEAL

UNDER SUPREME COURT RULE 23

The defendant was charged with unlaw-

ful possession with intent to deliver more

than 500 grams of marijuana recovered from

his automobile trunk, possession of less

than 30 grams of cocaine recovered from his

person, and possession with intent to de-

liver between 30 and 500 grams of mari-

la

Juana also recovered from his person. His

pretrial motion to suppress the evidence

obtained from the search of his automobile

trunk was sustained. The State has ap-

pealed that ruling, asserting that the

search of the defendant's automobile trunk

was justified.

At the hearing, the State introduced

as evidence a complaint for a search war-

rant and the search warrant itse1r.+ In the

complaint the arresting police officer

stated that an informant, who previously

had proved to be reliable, told him that he

helped carry two large plastic bags from

the defendant's car to his house. Inside

the defendant's house, the informant saw

that the bag contained marijuana; he also

1 Although there was some question

raised later at the hearing as to whether

the complaint was admitted as an exhibit,

we find that it was properly admitted and

that it is part of the record on appeal.

2a

smoked the substance, which the defendant

told him was marijuana. The search warrant

then issued for the defendant and his

house.

The arresting officer, who was the

only witness at the hearing, testified that

he and three other officers went to the

house with the warrant and entered forcibly

because a man in the house would not let

. : , 2 .

him inside. A van, which never was search-

ed, was parked in the driveway. After

police searched the premises for about one

and one-half hours and found nothing, the

defendant and his wife returned home in an

2 About 18 hours elasped between the

time the informant saw the alleged mari-

juana at the defendant's house and when the

house actually was searched by the police.

3a

eee

automobile. As the defendant and his wife

entered the house, the police confronted

defendant and found plastic bags with what

appeared to be marijuana and cocaine inside

the briefcase defendant was carrying.

They also found nearly $3,000 in the purse

of defendant's wife. He next took the de-

fendant's keys and went to the automobile.

He unlocked the car door and found nothing

inside the car, including the glove com-

partment; however, when he opened the trunk

with the keys, he found two large plastic

bags which apparently contained marijuana.

A this point, although the defendant had

already been arrested, his wife and the

other man who was in the house were not

taken into custody. The police learned

that the car which was in the driveway

about 25 feet from the house was registered

to the defendant and his wife.

4a

In ruling that the evidence seized in

the search of the defendant's automobile

trunk was inadmissible, the trial judge

concluded that a warrant should have been

obtained. In part, he found no exigent

circumstances to justify such a warrantless

search. He particularly emphasized that 10

to 15 minutes elapsed from the time the

defendant was searched until the trunk was

opened, that it was not clear at the time

of the search that the defendant owned the

car, and that the van in the driveway never

was searched.

We must affirm the ruling of the trial

judge. Initially, we note that the search

warrant extended only to the defendant's

person and his house. Although the police

could have requested a warrant for the

automobile as well, no mention whatsoever

was made in any automobile in the warrant,

even though the complaint for the warrant

5a

specifically stated that the informat had

said that the two bags of marijuana were

carried from an “auto" to the defendant's

house. Thus, once the defendant left the

car and was arrested inside the house, the

police had no justification for seizing his

car keys, going outside to the car and

opening the automobile trunk. No danger

existed to the police or to the public, and

so the search clearly was not authorized as

incidential to arrest. Further, no evi-

dence of any crime of its fruits was in

plain view inside the car to justify a

seizure. Also, the car itself was not a

nuisance that first had to be removed from

a public area and then searched. Here,

another vehicle already parked outside the

defendant's house was never’ searched.

Nothing in their search of the house or in

the defendant's arrest gave the police

6a

additional grounds to suspect that con-

traband was in the car. The police did

not learn until after, they already had

arrested the defendant, taken the keys, and

searched the parked automobile that the car

actually belonged to the defendant and his

wife. Thus, we cannot say that the trial

judge's ruling that the warrantless search

was illegal was manifestly erroneous. (See

People v. Clark, (1982), 92 I11.2d 96, 440

N.E.2d 869; People v. Jones, (1977), 45

Ill. App.3d 307, 359 N.E.2d 856!) Al-

though the State contends that the search

was justified by the exigent circumstances

that the contraband could have been de-

stroyed if the police withdrew to obtain a

warrant, we will not disturb the trial

judge's ruling on this basis either.

Because the car itself was parked and

locked on a private driveway, and the

7a

contraband was hidden from view in the

trunk, there was minimal danger that a

stranger might take the car or break into

it and remove or destroy the evidence. The

defendant himself already had been taken

into custody. Although his wife or the

other man in the house might have had

access to the car (even though a set of

keys had been seized), one of the officers

could have remained to watch the parked

car,” while the others left to request a

search warrant for the car from the judge.

Clearly, time was not the essence here; the

police did not even search the car until 10

to 15 minutes after they initially seized

the drugs and arrested the defendant. And

there was no indications that obtaining

3 However, the caselaw suggests that

immobilizing the vehicle until a warrant

was obtained would have been improper.

See People v. Peter (1973), 55 I11.2d 443,

8a

303 N.E.2d 398.

another search warrant would have been

particularly inpractical for the police.

Thus, the circumstances were not so extreme

as to justify the police in effectively

eliminating the search warrant requirement,

and thereby usurping the judicial function

of determining whether probable cause

existed to search the automobile. See

Collidge v. New Hampshire (1971), 403 U.S.

443, 29 L.Ed.2d 565, 91 S.Ct. 2022. See

also, Cady v. Dombrowski (1973), 413 US.

433, 37 L.Ed.2d 706, 93 S.Ct. 2523.

According, the judgment of the circuit

court is affirmed.

SULLIVAN, J. MEJDA, P.J. and LORENZ,J.,

concur.

9a

APPENDIX B

Order of the Illinois Supreme Court

denying leave to appeal in People v.

Thomas Fogel (No. 60572, October 2, 1984).

ILLINOIS SUPREME COURT

JULEANN HORNYAK, CLERK

Supreme Court Building

Springfield, Illinois 62706

(217) 782-2035

October 2, 1984

Hon. Richard M. Daley

Cook County State's Attorney

Criminal Appeals Section

574 Richard J. Daley Center

Chicago, Illinois 60602

No. 60572 - People State of Illinois,

petitioner, vs. Thomas Fogel,

respondent. Leave to appeal,

Appellate Court, First District.

The Supreme Court today DENIED the

petition for leave to appeal in the above

cited cause.

The mandate of this Court will issue

to the Clerk of the Appellate Court on

October 23, 1984.

10a