Opposition Brief — Connecticut v. Badgett

WGINAL «| CES

OCT 6 1966

~ GOBER F. Shani. Je

NO. 86-376 CLE WK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

‘STATE OF CONNECTICUT,

" Petitioner

EARL BADGETT,

Respondent

ON WRIT OF CERTIORARI TO

THE SUPREME COURT OF CONNECTICUT

MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS

Respondent, Earl Badgett, asks leave to proceed in forma pauperis

pursuant to Rule 46. Respondent's Affidavit in support of this Moton is

attached hereto. Respondent was permitted to proceed in forma pauperis in

‘the Superior Court of Connecticut dated April 18, 1983.

RESPONDENT

BY:

| : ASH

i _” ASSISTANT PUBLIC DEFENDER

" Chief Public Defender Office

121 Elm Street

New Haven, CT 06510

(203) 789-7477

Counsel for Respondent

NO. 86-376

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

STATE. OF CONNECTICUT,

Petitioner,

Vv.

EARL BADGETT,

Respondent

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF CONNECTICUT

AFFIDAVIT IN SUPPORT OF MOTION FOR LEAVE TO

PROCEED IN FORMA PAUPERIS

I Earl Badgett, being first duly sworn, depose and say

that I am the Respondent in the above-entitled case; that in

support of my Motion for Leave To Proceed In Forma Pauperis, I

state that I am confined in the Connecticut Correctional Institu-

tion, Enfield and that because of my poverty I am unable to pay

the costs of proceedings in this Court or to give security

therefor.

I further swear that the responses which I have made to

the questions and instructions below relating to my ability

fto pay the costs of proceedings in this Court are true.

1. Are you presently employed? Yes, I work in the kitchen at

Enfield Correctional Center where I am presently incarcerated.

2. Have you received within the past twelve months any

income from a business, profession or other form of self-

employment, or in the form of rent payments, interest, dividends

or other source? Income $37 per month for work at Enfield

Correctional Center.

3. Do you own any cash or checking or savings account?

Yes, I have a prison account of approximately $125.

4. Do you own any real estate, stocks, bonds, notes,

automobiles, or other valuable property (excluding ordinary

household furnishings and clothing)? No.

5. List the persons who are dependent upon you for support

and state your relationship to those persons.

None at present.

I understand that a false statement or answer to any ques-

tions in this Affidavit will subject me to penalties for perjury.

Jot: Colerfe

EARL BADGETT

STATE OF CONNECTICUT )

) Ss ENFIELD

COUNTY OF TOLLAND )

Personally appeared before me Earl Badgett, signer of

the foregoing Affidavit, who, being first duly sworn declared

the same to be his free act and deed this +m day of September,

yy ay

! / me ie ae.

“4 / I An a < chile.

MARTIN ZELDIS 7%

COMMISSIONER OF THE SUPERIOR COURT

1986.

NC. 86-376

Iv THE

SUPREME COURT OF THE UNITED STATES

STATE OF CONNECTICUT,

Petitioner

ve

EARL BADGETT,

Respondent

ON WRIT OF CERTIORARI TO

THE SUPREME COURT OF CONNECTICUT

BRIEF IN OPPOSITION

G. Douglas Nash

Chief Public Defender Office

121 Elm Street

New Haven, CT 06510

(203) 789-7477

Counsel for Respondent

On The Brief:

Martin Zeldis

Assistant Public Defender

October 6, 1986

QUESTIONS PRESENTED FOR REVIEW

1. Whether this case is ripe for Review by this Court

where there ‘% no formal judgment from the Connecticut Supreme

Court because this matter was remanded by that court to the

Connecticut trial court to conduct further proceedings regarding

the validity of the instant vehicle search.

2. Whether this on-site search of respondent's automobile

‘made after respondent's arrest was reasonable under the inventory

exception to the Exclusionary Rule when such search was not

undertaken pursuant to an on site inventory policy and was

not undertaken by officers intending to implement such policy,

and when this claim is now raised for the first time in the

petition for certiorari to this Court.

3. Whether the search of an automobile incident to the

arrest of its driver is rendered unreasonable under the Fourth

Amendment when the driver had been removed from it at the time

the evidence sought to be admitted was discovered.

TABLE OF CONTENTS

Questions Presented

Table of Authorities

Opinion Below

Jurisdiction

Constitutional and Statutory Provisions Invoived

Counter Statement

Reasons For Denying The Writ

Conclusion

Appendix

« Sx

TABLE OF AUTHORITIES

CASE AUTHORITIES PAGE

Batt @. Meat iam, S5% Usd... GEO LIGIS) ci ccccvoconcsseces 13

Chimel v. California, 395 U.S. 752 (1969).......ceeeee, 9, 16, 17, 18

Cooliage v. New Hampshire, 403 U.S. 443 (1971).......... 9

Cooper v. California, 386 U.S. 58 (1967).........eeeeee im

Cox Broadcasting v. Cohn, 420 U.S. 469 (1974).......... 4, 5, 6, 7

ieeeee 2. Benes, Bee B.S. GEG TISGE) oo cc ccccavccssucdece 15

Fives 6. Bere, O6r OLS. SIP CIO}. ana cccerceveveesacer 4, 7

Heath v. Alabama, _—sadU«.S. _ —s-106 S.Ct. 433 (1985).... 15

Illinois v. Lafayette, 462 U.S. 640 (1983)............. 12, 13

katz vy, Uatted States, 369 U.S. 347 CIU9G7). cccccccccoss 9

Mayhood v. State, 669 S$.W.2d 873 (Tex. App. 13 Dist

MO oe rack siiicesssy ons ceacsuixe 13

Richiaes vw. Tular, 636 U.S. SOD (1077). 0.0 cccccccccecss 13

New York v. Belton, 453 U.S. 454 (1981)....... cee cee eees 16, 17, 18

Dis @. Beseseee., GOr U.S, OF (IGGE) i cencacdacivcecives 3, 6

North Dakota Board of Pharmacists v. Snyders Drug-

SEOPOR £0014 WIS UeSs VER EPEC acca acccerriscncsecces S

Radio Station WOW v. Johnson, 326 U.S. 120 (1945)...... 4

San Diego Gas and Electric Co. v. San Diego, 450 U.S.

“MET YUMSl Ftc aees Pre rrr ry ETE re Terr errr rr Try rere &, 7. 6

‘Scott v. United States, 436 U.S. 128 (1978) et edeavas 12

‘South Dakota v. Opperman, 428 U.S. 364 (1976).......... 9,10,11,15,18

State v. Badgett, 200 Conn. 412 _—A.2d (1086)... .To9eF Tatts

State v. Gasparro, 194 Conn. 86,480 A.2d 509 (1984).... 11

|State v. Hernandez, 410 So.2d 1381 (1982)............- 3 16

State v. Hudson, 390 A.2d 509 (Me. 1979)..........-005. 13

State v. Johnson, 183 Conn. 148,438 A.2d 851 (1981).... 17

State v. Miskolczi, 123 N.H. 626,465 A.2d 919 (1983)... 18

State v. Murphy, 6 Conn. App. 394, 505 A.2d 1251 (1986). MW

- ili -

CASE AUTHORITIES-CONTINUED PAGE

State v. Walker, 579 P.2d 1091 (Ariz. 1978)........-0.. 13

Traylor v. State, 458 A.2d 1170 (Del. > 18

United States v. Cotton, 751 F.2d 1146 (10th Cir.

pi) rr rr er SE A Pa ee eee eat a ae ee aes 18

United States v. Hall, 565 F.2d 917 (5th Cir. 1978).... 13, 15

United States v. Hellman, 566 F.2d 442 (9th Cir. 1977). 13

United States v. Prescott, 599 F.2d 103 (5th Cir.

Bi. ) eee Lee CUWeSbae ed been nee dees enliew dnt bebendse 13, 14,

STATUTORY AND CONSTITUTIONAL AUTHORITIES

FOUPEN: AMENERENS US. CONST UEC ION s «.o oisccic cole cic cee ee vos a

0 Oe rer Pa bik os SuSs ebb eue csdeknwees 2, 4

MISCELLANEOUS AUTHORITIES

A. Amsterdam, Perspectives on The Fourth Amendment,

58 Minnesota Law Review 349 (1974).......cceeeees ins 15

LaFave, Search and Seizure, A Treatise on The Fourth

Si. Te 4 Gk BG h Ac eO dons 60456848 5 08 16

- iv -

NO. 86-376

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

STATE OF CONNECTICUT,

Petitioner.

EARL BADGETT,

Respondent

ON WRIT OF CERTIORARI TO

THE SUPREME COURT OF CONNECTICUT

BRIEF IN OPPOSITION

OPINION BELOW

The opinion of the Connecticut Supreme Court is reported at

,

00 Conn. 412, A.2d_ (1986) and is reprinted in full in the

Mm

appendix to petitioner's brief.

JURISDICTION

The decision of the Connecticut Supreme Court was rendered

on July 8, 1986 The petitioner claims jurisdiction under

28 U.S.C. 1257(3). As will be detailed below the respondent

opposes this jurisdictional claim.

CONSTITUTIONAL AND STATUTORY 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, supported by

Oath or affirmation, and particularly

describing the place to be searched, and

the persons or things to be seized.

28 U.S.C. §1257(3) provides as follows:

§1257. State courts; appeal; certiorari

Final judgments or decrees rendered by the

highest court of a State in which a decision

could be had, may be reviewed by the Supreme

Court as follows:

(3) By writ of certiorari, where the validity

of a treaty or statute of the United States is

drawn in question or where the validity of a

State statute is drawn in question on the ground

of its being repugnant to the Constitution,

treaties or laws of the United States, or where

any title, right, privilege or immunity is

specially set up or claimed under the Constitution,

treaties or statutes of, or commission held

or authority exercised under, the United States.

COUNTER STATEMENT

For the purpose of this brief the respondent does not

oppose the petitioner's statement contained at pages two through

five of its petition except as follows:

1. At page four of the petition the factual statement

contained therein might be interpreted to mean that the search

of the black bag was made prior to the respondent being taken

from the scene. The conclusion of the Connecticut Supreme

Court which is supported by the evidence is that the search

‘of the black bag found in the respondent's automobile was not

made until after the respondent had been removed from the scene.

State v. Badgett, 200 Conn. 412, 423, 427-428, Tr. at 30, 79.?:

2. At page five of its brief the petitioner represents

that the State Supreme Court concluded that "because the officers

did not search the vehicle pursuant to a formal on-site inventory

policy the inventory exception to the warrant requirement was

not applicable." The court's opinion adds to the above reason

the following as another justification for its holding. "Further,

it is clear that the officers’ purpose in searching the vehicle

at the scene was to investigate and not to inventory the contents."

State v. Badgett, supra at 431.

REASONS FOR DENYING THE WRIT

1. The Instant Connecticut Supreme Court Decision Is Not A

Final Judgment.

The respondent contends that the Connecticut Supreme Court's

opinion in State v. Badgett, supra, 1s not a final judgment.

Although the state court's opinion does decide the three presented

exceptions to the warrant requirement in the respondent's

favor (search incident to an arrest, probable cause and inventory

search) the court's decision to remand this case hinges on

its discussion of “inevitable discovery" as a possible exception

to the exclusionary rule as adopted by this court in Nix v.

Williams, 467 U.S. 431 (1984). Interestingly, the court's

opinion does not find error or no error; does not reverse or

affirm. The court simply remands the case for further proceedings

in accordance with the opinion. State v. Badgett, supra at

434. Thus, not only is there not a final judgment here, there

is no judgment at all: The Connecticut Supreme Court has simply

remanded the matter for futher proceedings without ultimately

deciding the case one way or the other.

1. “Tr. at " refers to the transcript of that portion of the

suppression hearing held on February 15, 1983.

The United States Code at 28 U.S.C. §1257 attempts to

limit Supreme Court review to final judgments of the highest

state court which could review the decision. The purposes

of this limited review of state court judgments are threefold:

"(1) it avoids piecemeal review of state court decisions;

(2) it avoids giving advisory opinions in cases where there

may be no real ‘case’ or ‘controversy’ in the sense of Article III;

(3) it limits review of state court determination of federal

constitutional issues to leave at a minimum federal intervention

in state affairs." North Dakota Board of Pharmacists v. Snyders

Drug Stores Inc., 414 U.S. 156, 159 (1973).

The requirement that review by this court must be predicated

upon a final state court judgment has existed since 1887, and

although some exceptions have been made to the finality requirement,

they are permitted "[o]nly in a very few situations where

intermediate rulings may carry serious public consequences..."

Radio Station WOW v. Johnson, 326 U.S. 120, 124 (1945). This

court still consistently holds that the finality "requirement

is not one of those technicalities to be easily scorned.

It is an important factor in the smooth working of our federal

system." Id. at 124. See also Flynt v. Ohio, 451i U.S. 619

(1981); San Diego Gas and Electric Co. v. San Diego, 450 U.S.

621 (196i).

The definative case on the exceptions to the finality

rule is Cox Broadcasting v. Cohn, 420 U.S. 469 (1974). While

acknowledging the importance of the final judgment rule, the

court in Cox set forth four exceptions to the rule as follows:

1: Those cases where there are further proceedings

yet to occur but the federal issue is conclusive,or the outcome

of further proceedings is preordained. Id. at 479.

«a«

2. Those cases in which the federal issue, finally

decided by the highest court in the state, will survive and

require decision regardless of the outcome of future state-

court proceedings. Id at 480.

q

ial ly

3. Those cases where the federal cleim has been fi

decided, with further proceedings on the merits stiil to come,

but in which later review of the federal issue cannot be had,

whatever the outcome of the case. Id. at 481.

4. Those cases where the federal issue has been finally

decided in the state courts with further proceedings pending

in which the party seeking review might prevail on the merits

on nonfederal grounds, thus rendering unnecessary review of

the federal issue by the Supreme Court, and where reversal

>

of the state court on the federal issue would be prec!

usive

of any further litigation on the relevant cause of action rather

than merely controlling the nature and character of, or determinin

i 9

the admissibility of evidence in, the state proceeding stil]

to come. Id. at 482-483.

This Court in Cox further noted that "[iJn most, if n

all, of the cases in these categories [the exceptions to the

finality rule] these additional proceedings would not require

the decision of other federal questions that might also require

review by the Court at a later date...." id. at 477.

It appears clear that the first three exceptions to the

finality requirement of §1287 do not apply here. The federal

issue is not conciusive and the outcome of future proceedings

is not preordained. The federal issue will not necessarily

survive and require decision no matter what the outcome of future

proceedings. The federal issue has not been finally decidea

and even if it had been it cannot be said that review by this

court cannot be had no matter what the outcome of the further

proceedings.

The petitioner suggests in its petition at footnote 5

that review can be made here pursuant to the fourth exception

stated in Cox. In so suggesting the petitioner seriously misstates

the standards set by the fourth exception of Cox.

First, even if the federal issues raised by the state

have been decided, which is not conceded by the respondent,

the standard set by the fourth exception in Cox relates to

the federal issue(s) decided by the highest state court, not

selective federal issue(s) raised by the petitioner in its

petition. Here the federal issue relates to the constitutionality,

under the fourth amendment,of the search of respondent's auto-

mobile. Since the Connecticut Supreme Court remanded this

cese for further proceedings related to the constitutionality

under the fourth amendment of the instant search, it cannot

be said that the Federal issue involved here has been finally

resolved.

Second, the fourth exception stated in Cox requires that

the futher proceedings ordered by the state court might result

in the petitioner prevailing on nonfederal grounds. Since,

the further proceedings ordered by the Connecticut Supreme

Court relate to another exception of the exclusionary rule

as decided by this court in Nix v. Williams, supra, there is

no possibility that the petitioner would prevail in the further

proceedings on nonfederal grounds. The hearing ordered by

the Connecticut Supreme Court was for the consideration of

a federal issue.

For these reasons the respondent contends that the petitioner

does not meet the requirements of the fourth exception to the

finality rule as stated in Cox.

In Flynt v. Ohio, 451 U.S. 619 (1981), the court specifically

discussed the applicability of the fourth exception in Cox

saying that the requirements of the exception were not met.

“The cases which the Cox opinion listed as falling in the fourth

category involved identifiabie federal statutory or constitutional

policies which would have been undermined by the continuation

of the litigation in the state courts. (citations omitted).

Here there is no identifiable federal policy that will suffer

if the state criminal proceeding goes forward." Id. at 622.

Likewise here no federal policy wili suffer in any way if the

proceeding ordered by the Connecticut court goes forward.

This court in Flynt also declined to treat the matter

as failing within the final judgment exceptions specified in

Cox because there were additional unresolved federal issues

which were likely to come up in the further proceedings to

be held in the state court. Flynt v. Ohio, supra at 621. Here

as discussed above the further proceeding ordered by the Connecticut

Supreme Court will necessarily address federal issues of the

same type and deal with the same search and the same constitutional

principles as those addressed by the Connecticut Supreme Court

in its opinion in State v. Badgett, supra. See aiso San Diege

Gas and Electric v. San Diego, 450 U.S. 621 (1981), where the

highest California court held that there was no entitlement

to a monetary award for an alleged property condemnation but

ordered further proceedings to determine if there was any other

appropriate remedy. As argued herein by the instant respondent

this court held in San Diego that the Cox exceptions did not

apply because "further proceedings are necessary to resolve

the federal question whether there has been a taking at all.

The court's decision therefore is not final and we are without

jurisdiction to review it." San Diego Gas and Electric v.

San Diego, supra at 633. o

For these reasons the respondent maintains that the court

should deny the state's petition for a writ of certiorari.

Without a final judgment from the Connecticut Supreme Court,

this Court does not have jurisdiction pursuant to 28 U.S.C.

§1257 to accept this matter.

~— 2

In dealing with the two substantive issues raised by the

petitioner it should be pointed out that the Fourth Amendment

and the relevant cases provide that the normal rule is that

a search must be performed pursuant to a warrant. Coolidge

v. New Hampshire, 403 U.S. 443, 454-55 (1971); Katz v. United

States, 389 U.S. 347, 357; (1967) Chimel v. California, 395 U.S.

752, 760-762 (1969). While the state in its petition points

to recognized exceptions to the warrant requirement, it must

‘be remembered that we are addressing exceptions to the rule

rather than the rule itself, and whether the search activities

performed here qualify under the warrant requirement exceptions

raised by the petitioner. The Connecticut Supreme Court held

that they did not.

2. When A Search Is Performed Without An Inventory Purpose

And Is Not Based Upon Rules Regarding Inventory Searches

It Does Not Qualify For The Inventory Search Exception

To The Warrant Requirement.

The respondent concedes that inventory searches are 4

recognized exception to the warrant requiremn*. South Dakota

v. Opperman, 428 U.S. 364 (1976). The respondent argues though

that the petitioner's attempted extension of this acknowledged

exception to the warrant requirement, in order to validate

a search when there is no inventory motive and no inventory

rules or guidelines to follow, is simply preposterous. As

will be shown, this extreme position, advocated now for the

first time by the state, is unsupported by any law in any juris-

diction. In addition the petitioner wants this Court to go

-one step further. It wants this court to hold that even though

the Connecticut Supreme Court has foilowed the clear thrust

of Opperman and other precedents in deciding the instant inventory

issue, Monetheless the court acted unreasonably in deciding

— o

that an inventory search must have an inventory motive and

must be performed pursuant to inventory rules and guidelines.

Despite the state's claim in its petition at page six

that certiorari should be granted here because there is conflict

in state and federal jurisdictions and resulting confusion

relative to the handling of “inventory searches," tne respondent

maintains that there is no conflict of authority when applying

the law to the facts present here; that Connecticut has developed

its inventory search law based upon Opperman and has exhibited

no confusion whatsoever; and that whatever conflict of authority

might exist regarding inventory searches, this case is not

an appropriate vehicle for this court to attempt to resolve

such alleged conflict. The obvious and natural conclusion

of this petitioner's claim goes far beyond inventory searches,

because if its position were adopted it would permit any search

of anybody and his possessions who is taken into custody no

matter what the basis; no matter what the motive.

In contrast to its detailed treatment of the search incident

to an arrest and probable cause aspects of the search of respon-

dent's vehicle, the Connecticut Supreme Court was able to

succinctly decide the inventory search aspect.

The state also contends that the warrant-

less search and seizure of the contentS of the

black bag were constitutionally permissible

in order to inventory the contents of the

vehicle. We summarily reject this contention

Although we have recognized the validity of

department authoriz2d inventory searches;

(citation omitted), the state, as is its burden,

did not offer evidence of any police department

practice for inventory searches to be conducted

on the highway by field officers. Further, it is

clear that the officers’ purpose in searching

the vehicle at the scene was to investigate

and not to inventory the contents. The fact that

no lists of property were made and that the officers

discontinued their search immediately after discovering

the contraband indictes that the search was not under-

taken to inventory the contents of the vehicle.

State v. Badgett, supra at 431.

In South Dakota v. Opperman, supra, this court approved

of police inventory searches as an exception to the warrant

requirement. See also Cooper v. California, 386 U.S. 58 (1967).

In allowing this exception to the warrant requirement this

court applied a reasonablmess standard to “inventory searches”

and set forth guidelines on determining the Vegitimacy of such

searches.

"Tne decisions of this court point

unmistakably to the conclusion reached

by both fedealand state courts that

inventories pursuant to standard police

Procedures are reasonabie.' South Dakota

v. Opperman, supra at 372.

"In applying the rewonablenes standard

adopted by the Framers, this Court has

consistently sustained police intrusions

into automobiles impounded or otherwise

in lawful police custody where the process

is aimed at securing or protecting the car

and its contents.

aa. @t 373.

The standards announced in Opperman by this court merely state

the obvious; that for an “inventory” search to be valid it

must be performed for inventory purposes pursuant to standard

police procedures. The petitioner concedes, as the Connecticut

Supreme Court decided, that such was not done here. Connecticut

and other jurisdictions in the ten years since Opperman have

relied upon and applied the standards set forth there in deter-

mining the reasor-+leness of inventory searches. For

Connecticut see State v. Gasparro, 194 Conn. 86, 108480 A.2d

‘509 (1984); State v. Johnson, 183 Conn. 148, 438 A.2q 851 (1981);

‘State v. Murphy, 6 Conn. App. 394, 401 n.8, 505 A.2¢ 1251 (1986).

'

The petitioner points to a number of cases from various

jurisdictions which it claims support the contention that neither

an inventory purpose nor inventory procedures are necessary

for a search to qualify for the inventory exception to the

warrant requirement. Upon closer scrutiny it is clear that

none of the cited cases stand for this proposition.

Scott v. United States, 436 U.S. 128 (1978), relied on

heavily by the petitioner for the claim that an inventory purpose

is not necessary, was not an inventory search case; it was a

wiretap case. The question decided there was whether a minimi-

zation limitation on nonrelated interceptions was complied with.

In deciding that the lower court had not improperly decided that

the minimization order had not been violated, the court applied

a reasonableness standard and looked, as they could in the wiretap

situation, to the actions of the police officers in intercepting

calls rather than trying to determine the state of mind of the

officers when the interceptions were made,

Illinois v. Lafayette, 462 U.S. 640 (1983) was an inventory

search of a handbag perforned for inventory purposes pursuant to

a standardized inventory procedure. Ail that Lafayette says is

that inventory searches are valid to protect the police against

certain risks such as false claims by detainees of property loss

and department theft or carelessness in handling the property of

detainees, and just because the officer making the search does not

specifically consider such possibility “the need to protect

against such risks arises independently of a particular officer's

subjective concerns." Id. at 647.

Although cited by the petitioner in support of its position,

Illinois v. Lafayette, holds very much for the respondent's

position relative to the need for inventory searches to be perforn-

ed pursuant to standardized inventory procedures.

"A standardized procedure for making a

list or inventory as soon as reasonable after

reaching the station house not only deters

false claims but also inhibits thefts or care-

less handling of articles taken from the

arrested person. ... Examining all the items

removed from the arrestee's person or possession

and listing or inventorying them is an entirely

reasonable administrative procedure."

Id, at 646.

Lafayette is much more on point regarding whether an inventory

o 32s

! “ee

search needs to be performed pursuant to standardized procedures

than are Bell _v. Wolfish, 441 U.S. £20 (1979) and Michigan v.

Tyler, 436 U.S. 499 (1977) cited by the petitioner in support of

its contention that standardized procedures are not necessary.

Neither Bell v. Wolfish nor Michigan v. Tyler are inventory

searches, Wolfish involves a body cavity search. Tyler involves

a fire marshall's investigatory search. Both cases deal with the

reasonableness of the search. Neither case turns on the lack of

procedural standards. In any event, since Lafayette and Opperman

deal directly with inventory searches and since both appear to

require that such searches be performed pursuant to standardized

inventory procedures, the respondent maintains that those rulings

are controlling.

Even the lower court cases cited by the petitioner do not

support its position. While; when claiming a conflict of author-

ity the petitioner concedes that cases such as United States v.

Hellman, 556 F.2d 442, 443-4 (9th Cir. 1977) and State v. Hudson,

390 A.2d 509, 511 (Me. 1979) are supportive of the respondent's

position, it points to United States v. Hall, 565 F.2d 917, 922

(5th Cir. 1978); State v. Walker, 579 P.2d 1091, 1098 (Ariz. 1978);

Mayhood v. State, 669 S.W.2d 873, 874 (Tex. App., 13 Dist. 1984

pet. ref'd); and United States v. Prescott, 599 F.2d 105-106

(5th Cir. 1979) as supportive of its position. The respondent

submits that petitioner's reliance on these cases for the pro-

|, position that an inventory search to be valid need not have either

an inventory purpose or be performed pursuant to standardized

'' policies is misplaced.

In United States v. Hall, supra at 919, 921-22, Mayhood v.

State, supra at 874, and State v. Walker, supra at 1098, ‘he

searches all had inventory purposes, inventory forms were com-

pleted in at least two of the searches and all the searches were

nerformed pursuant to standard department policy. All three cases

hold that if the officer performing the inventory search hopes or

a tie

intends to discover evidence during the inventory search, a valid

inventory search is not thereby rendered invalid. The respondent

here concedes this point, but notes that it has no relevance to

the instant situation because there was no valid inventory search

performed here.

Even the most extreme case cited by the petitioner United

States v, Prescott, supra requires that to be valid an inventory

search must have an inventory purpose, "Inventory searches must

be limited to effectuation of the recognized purposes for which

they are conducted and they may not be used as a pretext for

intrusive investigatory searches that would be otherwise imper-

missible." Id. at 105,

From the foregoing it appears that there is no caselaw which

supports the extreme position maintained by the petitioner.

Therefore, the claim that this court should grant certiorari in

order to reconcile the conflicting authorities is in this instance

wholly without merit.

Turning briefly to one final consideration, the respondent

is constrained to note that the petitioner raises the inventory

argument in this form for the first time in its petition to this

court. In fact, at the state level the petitioner elected not to

address the inventory exception to the warrant requirement, ex-

plaining in its brief that this was “because the record demon:-:

strates that the trial court correctly upheld the search on

grounds that it was incident to the defendant's arrest and was

based upon probable cause to search for weapons, Therefore, this

_ court can sustain the trial court's ruling on those grounds and

| need not reach the question of inventory search." Res, App. at la.

Although it appears from petitioner's brief that it was

abandoning the inventory aspect of the instant search, the re-

spondent concedes that the petitioner never formally did so. But

at no time did the state formally address the inventory issue and

« A «

it certainly was not ever addressed in the form that is now pre-

sented to this court.

This court has consistently held that it will not consider

on a petition for certiorari an issue that was not raised below.

Heath v. Alabama, _—sUwS. __g «106 S.Ct. 433, 436-37 (1985);

Ellis v. Dixon, 349 U.S. 458, 460 (1955). Therefore, for this

additional reason the respondent maintains that this court should

decline to graht certiorari to the petitioner as to the "inventory

search" issue.

There is no conflict of authority of the sort claimed by the

petitioner. Thus, this is not an appropriate case for this court

to review because it can not possibly be shown that the Connecticut

Supreme Court decided unreasonably when its holding that there

was no inventory search here was based upon the clear guidelines

set forth by this court in South Dakota v. Opperman, supra.

The petitioner contends that the fruits of a warrantless

search should be admitted simply because there exists an inventory

exception to the warrant requirement. The state is not troubled

by the lack of inventory purpose and is oblivious to the need for

standardized inventory rules. Yet rulemakiog has a valid purpose

in that it “supplies a needed check against arbitrariness in the

conduct cf various searches and seizures." A, Amsterdam, Per-

spectives on the Fourth Amendment, 58 Minnesota Law Review 349,

418 (1974). This contention flies in the face of all authorities

and would open our highways, our homes and our persons to uncor-

trolled pretextual searches. The petitioner maintains that the

pretextual searches which would result from ruleless and motive-

less “inventory searches” should be of no concern to this court

because al] police powers are subject to abuse through pretextual

use. But even the authorities cited by the petitioner express dis-

approval of the possible pretextual use of inventory searches.

See United States v. Hall, supra at 922; United States v, Prescott,

supra at 105. For all these reasons this court should refuse the

state's petition for certiorari as to the "inventory" search

claim.

3. It Was Reasonable To Conclude That The Search Of Respondent's

Automobile Did Not Qualify Under The “Search Incident To An

Arrest” Exception To The Warrant Requirement.

The Connecticut Supreme Court decided, based on the evidence

that at the time the black bag in respondent's automobile was

opened by Officer Kiernan anc the white powdery substance dis-

covered within, the respondent had been removed from the scene.

State v. Badgett, supra at 423, 427, 428. The court ultimately

held “that the right of a police officer to search the vehicle

ceases the instant the arrestee departs the scene because the

arrestee's removal forecloses any possibility that he could reach

for an article within the vehicle.” Id. at 428.

The reason for allowing an exception to the warrant recuire-

ment for searches made incident to an arrest is to protect police

officers from a weapon that the arrestee may grab ard use against

the police officer and to protect evidence which the arrestee

may attempt to reach and destroy. Chimel v. California, 395 U.S.

752, 768 (1969).

In New York v. Belton, 453 U.S. 454 (1981) this court held

that “when a policeman has made a lawful custodial arrest of the

occupant of the automobile, he may, as a contemporaneous incidert

of that arrest, search the passenger compartment of that auto-

mobile." Id. at 460. Although Belton was an attempt to establish

an understandable, standardized rule which could be easily

followed by the police, it was noted by Justice Brennan's dissent

in Belton and by subsequent commentators that the Belton rule

does not provide the definitive answer for ait! wsrranctiess vehicle

searches made incident to an arrest. Id. at 470; W. LeFave,

Search and Seizure, 1986 Supp. §7.1 at 218.

One of the factors left unspecified by Belton-{s the defini-

oe Me

tion of “contemporaneous", All that Belton requires is that the

search take place as a contemporaneous incident of the arrest,

The court therein eppropriately left the concept open for the

individual courts to determine whether in fact a perticular search

was indeed “contemporaneous” ,as such a term can only be evaluated

on an ad hoc basis. In the instant case, the definition of the

term contemporaneous becomes crucial to the validity of the search

of respondent's vehicle. The Connecticut Supreme Court held “that

-the right of a police officer to search the vehicle ceases the

instant the arrestee departs the scene because the arrestee's re-

moval forecloses any possibility that he could reach for an

article within the vehicle.” State v, Badgett, supra at 428.

Thus the Connecticut Supreme Court has defined "contemporaneous"

in Belton type searches incident to an arrest to mean the time

during which the arrestee is at the scene of the stop. The fruits

of any search activities which occur after the arrestee has left

the scene will not be admissilbe under the search incident to an

arrest exception te the warrant requirement,

The state m intains that this Court should grant its petition

and then define "contemporaneous" as including all searches which

are commenced while the arrestee is on the scene no matter when

they terminate. In answer to this contention the respondent

maintains that the definition of “contemporaneous” made by the

Connecticut Supreme Court is more appropriate than the definiticn

advocated by the petitioner. Since the rationale for the search

incident to an arrest exception as decided by Chime! is to protect

the officer and to protect the evidence, and since Belton is an

attempt to apply Chimel to the highway arrest, the need for the

search ceases the instant that the risk ceases, The risk ceases

the instant the arrestee is removed from the scene. The risk to

the officer and the evidence may end long before the search of the

» £7 e

stopped vehicle is concluded, Support for this contention is

found in several cases cited by the Connecticut Supreme Court

where the search was found to be proper when the arrestee was

handcuffed and/or cut of the vehicle being searched, but was still

at the scene. State v. Badgett, supra, at 427. Therefore the

deciding factor for the Connecticut Supreme Court was that this

respondent had been removed from the scene, thereby foreclosing

any risk to the officers or evidence at the hands of the respondent.

The respondent also argues that because this court did not

define “ccntemporaneous" in Belton, the Connecticut court was

bound only to a reasonable standard in defining and applying that

term. Since the Connecticut Supreme Court followed the direc-

tives and heeded the concerns identified by both Chimel and Belton

relative to the need to protect evidence and arresting officers,

and not to allow unnecessary and unreasonable searches, ‘t can

not be said that the holding of the Connecticut Supreme Court was

unreasonable.

The cases decided since Belton appear to be consistent with

both the holding of the Connecticut Supreme Court as well as the

principles of Chimel and Belton thus putting into question

petitioner's contention that there is significant confusion and a

need for guidance as to how to apply the “contemporaneous” require-

ment of Belton. On the one hand there are the cases where the

arrestee is still on the scene where the courts have consistently

‘held that the search incident to the arrest was proper. United

States v. Cotton,751 F.2d 1146 (10th Cir. 1985); Traylor v. State,

458 A.2d 1170 (del 1983); State v. Miskolczi, 123 N.H. 626, 465

\A.2d 919 (1983). On the other hand where the arrestee was removed

from the scene, having been taken to the police station, the

search of the vehicle he had earlier occupied was not permissible

as incident to his arrest. State v. Hernandez, 410 So.2d 1381

(La. 182°

» 3B «

Ber

CONCLUSTON

For the reasons specified herein the respondent contends that

there is no final jedgment from which the petitioner seeks

certiorari; the search performed here was not an inventory search;

the search performed here was incident to the responcent's érrest.

The petition for certiorari should be denied.

RESPONDENT

EARL BADGETT

as 7

ZN | Ps i |

we, Pape le

CHIEF PUBLIC DEFENDER OFFICE

121 ELM STREET

NEW HAVEN, CONNECTICUT 06510

(203) 789-7477

COUNSEL FOR THE RESPOKRDENT

WITH WHOM ON THE BRIEF IS:

XN

ASSISTANT WBLIC DEFENDER

October 6,1986

= £6 «

No. 86-376

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

STATE OF CONNECTICUT

Petitioner,

v.

EARL BADGETT,

Respondent,

APPENDIX

OF TRE

RESPONDENT

FOOTNOTE IN PETITIONER'S

BRIEF IN THE CONNECTICUT SUPREME

COURT REGARDING INVENTORY

At Page 36

7. The defendant also contests the third ground of the trial

court's denial of his motion to suppress, i.e. that the search

was a valid inventory search. Defendant's Brief at 12-14. The

state does not address this issue in its brief, because the record

demonstrates that the trial court correctly upheld the search on

grounds that it was incident to the defendant's arrest and was

based on probable cause to search for weapons. Therefcre this

Court can sustain the trial court's ruling on those grounds and

need not reach the question of inventory search. Cf. State v.

Geyer, 194 Conn. 1, 17, 480 A.2d 489 (1984) (Shea, J. Concurring).

» JA -