Petition for Writ of Certiorari — Johnson v. Maryland

W) i

- Supreme Court, U.S.

FILED

FEB 28 1985

In THE ALEXANDER & STEVAS.

ms

Supreme Court of the Unite

Octoser Term, 1984

GREENBERRY JOHNSON,

Petitioner,

Vv.

STATE OF MARYLAND,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF MARYLAND

Domenic R. IAMELE,

Levy & IAMELE,

114 E. Lexington Street,

Suite 702,

Baltimore, Maryland 21202,

(301) 752-6160.

Morton C. Po.iack,

Five Light Street,

Suite 550,

Baltimore, Maryland 21202,

(301) 539-5757,

Counsel for Petitioner.

The Daily Record Co., Baltimore, MD 21202 he

i

QUESTION PRESENTED

Whether evidence seized during warrantless search of

Petitioner’s vehicle should have been excluded.

ll

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases

Cardwell v. Lewis, 417 U.S. 583 (1974) ..............

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

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Jchnson v. United States, 333 U.S. 10 (1948)

Michigan v. Thomas, 458 U.S. 259 (1982) ..........

South Dakota v. Opperman, 428 U.S. 369

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Constitution

United States Constitution, Amendment IV ......

a

No.

In THE

Supreme Court of the United States

Ocroser Term, 1984

GREENBERRY JOHNSON,

Petitioner,

V.

STATE OF MARYLAND,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF MARYLAND

Petitioner, Greenberry Johnson, requests that a writ of

certiorari issue to review the judgments of the Court of

Appeals and the Court of Special Appeals of Maryland

entered in these proceedings.

OPINION BELOW

The Order of the Court of Appeals of Maryland denying

certiorari in Petitioner’s case is included as Appendix A.

The unreported opinion of the Court of Special Appeals of

Maryland affirming Petitioner’s conviction is included as

Appendix B.

2

JURISDICTION

The order of the Court of Appeals of Maryland denying

Petitioner's Petition for Writ of Certiorari was filed

January 8, 1985. The jurisdiction of this Court is invoked

under 28 U.S.C. Section 1257(3).

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Amendment IV:

The right of the people to be secure in their

persons, houses, papers, and effects, against un-

reasonable searches and seizures, shall not be

violated, and no Warrants shal! 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.

STATEMENT OF THE CASE

Petitioner was shot and wounded by three unknown

assailants while in his van. Police were summoned and

the Petitioner transported to the hospital. The van was

photographed on the scene at 222 East Baltimore Street

and then moved to the headquarters building for ad-

ditional processing and searched. As a result of the search,

the Petitioner was charged with the possession of cocaine

with intent to distribute. At the hearing on a Motion to

Suppress Ewidence, the officer in charge, Officer Riley,

testified, “I called for them to take the van to Head-

quarters for inventory.” “I opened the right van door at

the time to start the inventory because there were items

in there strung about. And on the right seat, right on top,

was a little blue bag tied and I untied the bag. It was tied

around the top. I picked it up to open the bag. When I

opened the bag it had U.S. currency in it.”

Officer Riley further testified that another officer,

Officer Barton, had picked up a bag, “opened it and taking

3

the bag out” discovered a glassine bag with white capsules

with a white substance.

Motion to Suppress Evidence was denied by the trial

judge and the Petitioner was ultimately convicted and

sentenced to eight (8) years incarceration.

REASONS FOR ALLOWANCE OF THE WRIT

This Court has always acknowledged the importance of

the issue underlying this Petition:

The policy underlying the warrant requirement was

succinctly stated by Mr. Justice Jackson writing for the

Supreme Court in Johnson v. United States, 333 U.S. 10 at

13-14. (1948):

“This point of the Fourth Amendment, which often

is not grapsed by zealous officers, is not that it

denies law enforcement the support of the ususal

inferences which reasonable men draw from evi-

dence. Its protection consists in requiring that

those inferences be drawn by a neutral and

detached magistrate instead of being judged by

officers engaged in the often competitive enterprise

of ferreting out crime. Any assumption that

evidence sufficient to support a magistrate’s disin-

terested determination to issue a search warrant

will justify the officers in making a search without

a warrant would reduce the amendment to a

nullity and leave the people’s homes secure only in

the discretion of the police officer . . . When the

right of privacy must reasonably yield to the right

of search is, as a rule to be decided by a judicial

officer, not by a policeman or government en-

forcement agent.”

This Court has previously held that police departments

may remove, impound, and inventory vehicles tor parking

violations, South Dakota v. Opperman, 428 U.S. 369

(1976), and traffic violations or accidents where the driver

is arrested, Michigan v. Thomas, 458 U.S. 259 (1982).

4

However, in the present case, the \vehicle itself was

legally parked and constituted no nuisance along a

highway of the State. The Petitioner was not disabled as a

result of the shooting to the point that he could make no

arrangements to have the vehicle removed from the scene

nor was he, at the time of the seizure of his vehicle, under

arrest. Officer Riley ordered the vehicle towed under the

claim that further processing may produce evidence. .

However, he could not articulate the type of evidence that

the vehicle was likely to produce under the circumstances.

In Coolidge v. New Hampshire, 403 U.S. 443 (1971), this

Court dealt with the seizure of a vehicle because of its

potential evidentiary value. There the Court specifically

held that the warrant to search defendant’s car was

illegal. Furthermore, in dismissing the State’s argument

that the automobile was seized as an “instrumentality of a

crime” which was found in plain view the Court stated:

What the “plain view” cases have in common is

that the police officer in each of them had a prior

justification for an intrusion in the course of which

he came inadvertently across a piece of evidence

incriminating the accused. The doctrine serves to

supplement the prior justification — whether it be

a warrant for another object, hot pursuit, search

incident to a lawful arrest, or some other legitimate

reasons for being present unconnected with a

search directed against the accused — and permits

the warrantless seizure. Of course, the extension of

the original justification is legitimate only where it

is immediately apparent to the police that they have

evidence before them; the “plain view” doctrine may

not be used to extend a general exploratory search

from one object to another until something incrimi-

nating at last emerges. (Emphasis provided).

Another Supreme Curt case, Cardwell v. Lewis, 417

U.S. 583, (1974) also focused its holding on the seizure of a

vehicle because of its potential evidentiary value. In

Cardwell, after defendant’s arrest upon a warrant fol-

5

lowing his appearance for questioning at police head-

quarters concerning a murder which had occurred a few

months earlier, the police seized his car from a nearby

parking lot and thereafter, inspected the tires and took an

exterior paint sample. This Court concluded that “exam-

ination of the exterior of the vehicle upon probable cause

was reasonable” and did not violate the Fourth Amend-

ment.

In reviewing the facts of the instant case, Officer Riley

cannot state why the vehicle had to be taken to police

headquarters to be further processed. The area outside the

van was canvassed and photographed. There are no facts

to support that the vehicle here was an integral part of the

crime. Here, there is no articulable showing in the present

case as to why Officer Riley reasonably believed Ap-

pellant’s van to contain evidence or that the van itself

constituted evidence.

Assuming arguendo that it was permissible to make a

warrantless search of the vehicle based upon a reasonable

belief that it contained evidence, or that it was lawful to

make a warrantless seizure of the vehicle, which was

believed to constitute evidence, then it is argued that the

intrusiveness of the police in going into the closed pouch,

located near the driver’s seat, became the kind of

intrusiveness that is repugnant to the Fourth Amend-

ment. In South Dakota v. Opperman, 428 U.S. at 396

(1976), the court held that inventory searches of auto-

mobiles were permissible: 1. to protect police from danger;

2. to protect police against claims and disputes over lost or

stolen property; and 3. to protect the owner’s interest

while the vehicle remains in police custody. Inventory

searches, therefore, not conducted in order to discover

evidence of a crime. In approving the inventory in South

Dakota v. Opperman, supra, the court pointed out that the

“owner — was not present to make other arrangements for

the safekeeping of his belongings.” That is contrasted in

\

6

the instant case with evidence that the owner was present

and available.

CONCLUSION

It is respectfully submitted that Petitioner’s case

involves an issue which merits the attention of this

Honorable Court. It has not been previously presented to

this Court and does and will continue to effect the

everyday »rocedural operations of police as well as the

constitutional rights of every citizen.

Unlike previous cases, the Petitioner’s “ase does not

involve the arrest of the vehicle’s owner, ti 2 vehicle’s

incapacity or obstruction of traffic, or the seizure of the

vehicle as an “instrumentality of a crime.” Resolution of

the question presented will further the interest of justice

by letting police officials know what they are allowed to

do, and assisting other courts in developing law in this

area. These considerations further enhance the import-

ance of granting a Writ of Certiorari in this case.

Respectfully submitted,

Domenic R. I[AMELE,

Levy & IAMELE,

114 E. Lexington Street,

Suite 702,

Baitimore, Maryland 21202,

(301) 752-6160.

Morton C. Po.iiack,

Five Light Street,

Suite 550,

Baitimore, Maryland 21202,

(301) 539-5757,

Counsel for Petitioner.

_

la

No.

In THE

Supreme Court of the United States

OcToBerR TERM, 1984

GREENBERRY JOHNSON,

Petitioner,

Vv.

STATE OF MARYLAND,

Respondent.

ON WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF MARYLAND

APPENDIX A

Denial of Writ of Certiorari to the Court of Special

Appeals

Petition Docket No.: 484

September Term, 1984

Filed: January 8, 1985

2a

In The Court of Appeals of Maryland

Petition Docket No. 484

September Term, 1984

(No. 52, September Term, 1984

Court of Special Appeals)

Greenberry R. Johnson

v.

State of Maryland

ORDER

Upon consideration of the petition for a writ of certiorari

to the Court of Special Appeals and the answer filed

thereto, in the above entitled case, it is

ORDERED, by the Court of Appeals of Maryland, that

the petition be, and it is hereby, denied as there has been

no showing that review by certiorari is desirable and in

the public interest.

/s/ Ropert C. Murpny,

ClL.icf Judge.

Date: January 8, 1985

3a

No.

In THE

Supreme Court of the United States

Octoser Term, 1984

GREENBERRY JOHNSON,

Petitioner,

Vv.

STATE OF MARYLAND,

Respondent.

ON WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF MARYLAND

APPENDIX B

Opinion Be.Low:

Johnson v. State, No. 52, Court of Special Appeals of

Maryland, September Term, 1984, Filed September 26,

PENT vaidediesellhistikciphccisakiighchisieshindiicaisdibalaceedeiianiadad diilipeadeadpbacchiialiouk App.

4a

Unreported

In The Court Of Special Appeals

Of Maryland

_ No. 52

September Term, 1984

Greenberry R. Johnson

v.

State of Maryland

Weant, Alpert, Bloom, Judges.

Per Curiam

Filed: September 26, 1984

This appeal concerns the admissibility of various drugs

seized by the police from appellant’s van following a

shooting. The factual scenario, as it relates to the status of

the parties, is a bit unusual in this case. On June 18, 1983,

Baltimore City police responded to the scene of a shooting

in the 400 block of East Baltimore Street. Appellant

Greenberry Johnson had been shot in the chest area and

informed the officer that he had been assaulted and robbed

by three black males, but was unable to provide the police

with a more specific description.

The responding officer, Officer Riley, summoned an

ambulance and the crime lab, fearing the incident was a

potential homicide. Appellant was taken to University

Hospital. Officer Riley testified at the suppression hearing

that it is the duty of the first responding officer to preserve

the crime scene. He further testified that it is normal

police procedure to process the scene, especially if it may

develop into a homicide investigation.

5a

The crime lab technician arrived at the scene, photo-

graphed the van, and inspected the surrounding area.

Officer Riley testified that nothing of significance was

discovered at the scene. The police transported the van to

headquarters for further inspection because of the poor

street lighting. Riley testified that the purpose of the

search was to secure evidence of the crime committed

against the appellant, the shooting.

During the subsequent search at headquarters, the

police discovered a cloth bag containing approximately

two thousand dollars and a partially open vinyl pouch

containing cocaine. Premised upon this inadvertent dis-

covery, appellant was charged with possession with intent

to distribute cocaine.

Appellant’s counsel attempted to suppress the drugs and

money as the fruits of an improper inventory search.

Secondarily, defense counsel argued the absence of

probable cause to search the van.

Judge Greenfeld of the Circuit Court for Baltimore City

denied the motion to suppress, finding that it is per-

missible for the police to make a reasonable inspection of

the property involved in the commission of a crime. The

parties then submitted on an agreed statement of facts

and Judge Greenfeld found the appellant guilty.

We affirm Judge Greenfeld’s decision to admit the

money and drugs and find that the search was conducted

pursuant to normal police procedure and was reasonable

in scope. Accordingly, there has been no violation of the

Fourth Amendment.

Inventory Search

Appellant’s appeal is based primarily upon the argu-

ment that the search conducted was an improper inven-

tory search. The Supreme Court of the United States

6a

delineated three reasons for permitting inventory

searches. Inventory searches are permitted to: 1) protect

an owner’s property while the property is in police

custody; 2) protect the police against claims or disputes as

to lost or stolen property; and 3) protect the police from

any potential danger. South Dakota v. Opperman, 428 US.

364, 369 (1974). Such inventory searches derive from the

“community caretaking function of the police.” Duncan v.

State, 281 Md. 247, 256 (1977). In the instant case, the

search conducted does not fall within the purview of the

caretaking function. Although Officer Riley testified that

the contents of the vehicle were listed or inventoried, he

also testified that the purpose of searching the appellant’s

van was to locate evidence of the shooting. In Manalansan

v. State, 45 Md. App. 667, 668 (1980), this Court

specifically stated “that the inventorying of the contents of

an automobile is not a constitutionally-permitted inves-

tigative technique.” Here, the police were involved in an

official investigation and even though the appellant was

not initially the object of the investigation, it was a search

for evidence and therefore beyond the perimeter of an

inventory search.

Carroll Doctrine

The State premises its primary opposition to the appeal

on the theory that the police had probable cause to believe

a crime had been committed and therefore properly

conducted a warrantless search of a motor vehicle

pursuant to the Carroll doctrine. Carroll v. United States,

267 U.S. 132 (1925). To legitimize a warrantless search of

an automobile, the police must have probable cause to

believe the vehicle contains evidence of a crime and an

exigency, e.g., danger that the evidence may later become .

unavailable. Chambers v. Maroney, 399 U.S. 42, 44 (1970).

In this case, the police certainly had probable cause to

believe a crime had been committed. The appellant was

seated in the van, seriously injured. Furthermore, ap-

7a

pellant specifically informed the responding officer that he

had been assaulted and robbed. Thus, there was certainly

probable cause to believe evidence of these crimes may be

contained within the van. Officers are not required to have

“actual knowledge” that the vehicle contains evidence,

only the probability that it does. Mobley v. State, 270 Md.

76, 81 (1973), cert. denied, 415 U.S. 992 (1974).

The exigency prong can also be satisfied in this case. As

stated in Chambers, “the opportunity to search is fleeting

since a car is readily movable.” 399 U.S. at 51. Although

there was no danger in the appellant moving the vehicle,

the testimony indicates that a crowd was gathering

around the van and furthermore the attackers were still at

large. The exigency is not affected by the acts of the police

in transporting the vehicle to the station. It is permissible

to seize a vehicle pursuant to the Carroll doctrine and

conduct the actual search later, at the station. Mobley v.

State, 270 Md. at 87 (quoting Coolidge v. New Hampshire,

403 U.S. 443, 463 (1971)).

Although the facts of the instant case technically satisfy

the two prong Carroll test, the status of the appellant

differs from the more traditional cases. The automobile

exception is generally invoked to gather evidence against

the driver or an occupant from the outset. For example, in

Carroll the police were searching for evidence that the

occupants were involved in a bootlegging operation. In

Chambers and Mobley the police were pursing robbery

suspects. In this case the police began the search in an

effort to obtain evidence to use against the appellant’s

attackers. The money and drugs found and ultimately

used against the appellant were inadvertently discovered

per normal police procedures. Accordingly, although the

two pronged test can be satisfied, this case does not fit

exactly within the scope of Carroll and its progeny.’

' The fact that the money and drugs seized were in containers

does not alter the above Carroll analysis. In United States v.

8a

Reasonableness of Police Conduct

The Fourth Amendment only proscribes unreasonable

searches and seizures by police. The test of reasonableness

is structured by the facts and circumstances of each case.

“In each case it requires a balancing of the need for the

particular search against the invasion of personal rights

that the search entails.” Bell v. Wolfish, 441 U.S. 520, 559

(1979); see also Huber v. State, 2 Md. App. 245, 259 (1967).

In Bell, the Supreme Court listed various factors to

consider, including: “the scope of the particular intrusion,

the manner in which it was conducted, the justification for

initiating it, and the place in which it was conducted,” 441

U.S. at 559. In applying this balancing test, we conclude

that the search of a victim’s van, following a violent and

life-threatening attack, was reasonable.

The police search was conducted with the express

purpose of locating clues to identify the victim’s attackers.

These men were armed. at large, and possibly a threat to

the community. This certainly outweighted appellant’s

privacy interest in his van. The police had a duty to

investigate the crime and attempt to capture the per-

petrators.”

Although there is not a large body of law in this area,

this Court addressed an analogous issue in Floyd v. State,

24 Md. App. 363 (1975). In that case, Floyd was shot but

refused to identify either himself or the shooters. In an

Ross, 456 U.S. 728 (1982), the Court authorized the search of

any part of the vehicle, including containers, which could

possibly contain the object of the search. Here, the pouches could

have contained fingerprints or could have been dropped by the

robbers.

2 It should be noted that there is no per se exception for a

murder scene search. Mincey v. Arizona, 437 U.S. 385 (1978).

Mincey is distinguishable because the shooting occurred in the

defendant's apartment during a drug raid and the search

continued for a period of four days.

9a

attempt to secure potential evidence against the as-

Sailants, the victim’s bloody clothes were seized from the

hospital. Through these acts, the police inadvertently

discovered twenty-four glassine bags containing heroin.

Floyd attempted to suppress the admission of the heroin as

an illegal search. This Court ruled that the heroin was

admissible because: 1) it constituted evidence of the

shooting and 2) the officer had both the right and the duty

to ascertain the identity of the victim. 24 Md. App. at

365-66. Once the initial intrusion is deemed lawful, any

inadvertent discovery is admissible. Id. at 366.

In the case at bar, the police were fulfilling an

investigatory duty® with no knowledge of the existence of

incriminating evidence against Johnson. We hold that the

search of the van was lawful as a reasonable police

procedure and, therefore, the evidence seized was properly

admitted.

JUDGMENT AFFIRMED; APPELLANT TO PAY THE

COSTS. ,

° See also Moore v. State, 23 Md. App. 540, 552 (1974)

(upholding warrantless search of vehicle used in kidnapping and

stating officers had the duty to seize it as evidence of the crime).