# Opposition Brief — Maddox v. Alabama

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1986
- **Citation:** 479 U.S. 932

## Text

~
2 Supreme Court, U.S.
PILED

NO. 86-426 OCT 20 1986

JOSEPH F. SPANIOL, JR.
IN THE SUPREME COURT THE CLERK

UNITED STATES
OCTOBER TERM, 1986

RICHARD M. MADDOX, VICKIE ELLEN
CALLAHAN, AND GARY DEAN GILLUM,

PETITIONERS,
Ve

STATE OF ALABAMA,
RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF ALABAMA

BRIEF AND ARGUMENT iN OPPOSITION
TO THE PETITION

OF
CHARLES A. GRADDICK
ATTORNEY GENERAL,

JAMES B. PRUDE
ASSISTANT ATTORNEY GENERAL

AND

JOSEPH G. L. MARSTON, III
ASSISTANT ATTORNEY GENERAL

OFFICE OF THE ATTORNEY GENERAL
Alabama State House
11 South Union Street
Montgomery, Alabama 36130
(205) 261-7300

NO. 86-426

IN THE SUPREME COURT OF THE
UNITED STATES

OCTOBER TERM, 1986

RICHARD M. MADDOX, VICKIE ELLEN
CALLAHAN, AND GARY DEAN GILLUM,

PETITIONERS,

Ve

STATE OF ALABAMA,
RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF ALABAMA

BRIEF AND ARGUMENT IN OPPOSITION
TO THE PETITION

OF
CHARLES A. GRADDICK
ATTORNEY GENERAL,

JAMES B. PRUDE
ASSISTANT ATTORNEY GENERAL

AND

JOSEPH G. L. MARSTON, III
ASSISTANT ATTORNEY GENERAL

OFFICE OF THE ATTORNEY GENERAL
Alabama State House
11 South Union Street
Montgomery, Alabama 36130
(205) 261-7300

QUESTIONS PRESENTED

1. Where a state convict appeals his
conviction, raising two unrelated federal
questions and the state's highest judicial
tribunal finally decides one federal
question but orders further litigation on
the other federal question, is the cause
final for purposes of 28 U.S.C. §1257?

2. Does this Honorable Court have
jurisdiction (28 U.S.C. §1257) to review a
Claim by a state convict, which could have
been but was not presented to the highest
State court in a manner which permitted that
court to review the claim?

3(A). Where a law enforcement officer
is in an open field and, with the aid of
binoculars , observes contraband in
open view inside a curtilage but outside of
buildings, does such officer violate any

right protected by the Fourth Amendment to

the United States Constitution?

3(B). Do persons who were physically
present on real property have standing to
question observations of the property, where
it does not appear what right, if any, such

persons had to be on the property?

THE PARTIES

In the Circuit Court of Coosa County,
Alabama, and the Supreme Court of Alabama
the Parties were Richard M. Maddox, Vickie
Ellen Callahan and Gary Dean Gillum, as
Defendants and Petitioners, respectively,
they being Petitioners herein, and the State
of Alabama, as Plaintiff and Respondent,
respectively, said State being Respondent
herein. In the Court of Criminal Appeals

the parties were and are the same Richard M.

Maddox, Vickie Ellen Callahan and Gary Dean

Gillum, as Appellants, and the same State of

Alabama, as Appellee.

TABLE OF CONTENTS

PAGE
QUESTIONS PRESET EDs ccecieceeeesesave ante,I

THE PART LUO seb eeoceces ee eeeeeeeeséeee ante,II

TABLE OF CONSTITUTIONAL PROVISIONS... iii
TABLE OF CASES. cccccccccccccccccccoce iii
TABLE OF STATUTES... cccccccccccccccce viii
TABLE OF RULES OF COURT... .cccccccces viii
OPINIONS BELOW... .ccccccccccccccccsces 1
JURISDICTION... ccc cccccvcccccccccccs 3
CONSTITUTIONAL PROVISIONS INVOLVED... 3
STATUTORY PROVISIONS INVOLVED........ 3
STATEMENT OF THE CASE AND THE FACTS.. 4
A. ALABAMA APPELLATE PRACTICE..... 4
all B. THE PROCEDURAL HISTORY OF

THIS CASE. cece cc ccccccccccccces 8

1. AT THE TRIAL LEVEL......... 8

2. APPEAL. cc cccccccccccccccces 10

3. CERTIORARI IN THE ALABAMA
SUPREME CA ae o6 bes ebbeece 13

SUMMARY OF THE RUE oc 6 6 66668060880 18

TABLE OF CONTENTS (CONT'D)

PAGE
ARGUMENT cece cc ec eee eee eee eeeeesesesse 20
I. THIS CASE IS NOT FINAL
WITHIN THE MEANING OF
28 os Aor OTA lec ececcesensese 20
II. THE ALABAMA SUPREME COURT
NEVER HAD AN OPPORTUNITY TO
RULE ON THE ISSUE PRESENTED
BY THE PETITIONERS....eeeees 22
III. THE USE OF BINOCULARS DID
NOT VIOLATE THE PETITIONERS '
RiGee see 006660080008 08686608 26
&« «Fi. 3.0 Free. 2 ee Pe oe 31

CERTIFICATE OF SBERVICBe cocccceesocce 33

ii

TABLE OF CONSTITUTIONAL PROVISIONS

PAGE

Constitution of the United States,

1789,
AMONGRONE FOUL ec ccccccecsscesesessoce SHES 13
post 3,
a3deaie
30
Amendment Bight. cccccccceccsvesccses 3,18
21
TABLE OF CASES
PAGE

Air Pollution Variance Board v.

Western Alfalfa Corp.,
476 U.S. 861, 40 CET 2a 607,

94 S.Ct. 2114 (1974) ccccccccccceee 19,30

Beck v. State,
363, 506.420 1006 (Ala. 1978) -ccccecce 8,25

Bland v. State,
277 Ala. 4, 166 So.2d 735 (1964)... 8,25-

California v. Ciraolo,

476 U.S. _, 90 L.Ed.2d 210,
106 S.Ct. (1986)... eeeeeene eeeeeveee 19,30

Camara v. Municipal Court,
387 U.S. 523, 18 L.Ed.2d 930,
87 S.Ct. 1727 $y) ae eoeeeeeeee 27

Cardinale v. Louisiana,
394 U.S. 437, 22 L.Ed.2d 98,
me fo~ wae h > ae). eee 18,26

iii

TABLE OF CASES

PAGE

Cox Broadcasting Corp. v. Cohn,
420 U.S. 469, 43 L.Ed.2d 328,
9S B.Ct. 1629 (3973) cccccccccese 20-21

Donovan v. Dewey,
452 U.S. 594, 69 L.Ed.2d 262,
101 BeGle 2534 CTSStdocececesees 27

Dow Chemical Company v. United
States,
476 U.S. , 90 L.Ed.2d 226,
106 S.Ct. (1986). .cccccccccecces 19,30

Ex parte Felder,
470 So.2d 1330 (Ala. 1985)...... 5

Ex parte Genesco, |
So. (Ala. WHS i pecceccs 6

Ex parte Grear,
484 So.2d 481 (Ala. 1985)...... ° 6

Ex parte Maddox, et al.,
_So.2d_ (Ala., April 25, 1986)... 2,12,15-

16
Ex parte Phelps,
O. (Ala., 1978) cece 6
Exxon Corp. v. Eagerton,
462 U.S. 176, 76 L.Ed.2d 497,
103 S.Ct. 2296 (1983). cccccccces 25
Felder v. State,
470 So.2d 1321 (Ala.Crim.App.
1984) .cccee ecccccccccccccooes cee 7

lv

TABLE OF CASES

PAGE

Franks v. Delaware,

438 U.S. 154, 57 L.Ed.2d 667, .

98 S Ce. 2674 (1978) ccccccccccces 12
Hanson v. Denckla,

357 U.S. 235, 2 L.Ed.2d 1283,

78 Bee 1228 (19SSdecccccccecceses 25
Hester v. United States,

. . ’ . . 898,

44 BeGte 445 CTSZS9)cccccccccccoce 27
Hitchcock v. Wainwright,

770 F.2d 1514 (11th Cir. 1985)... 17

Jackson v., State,

265 Ala. 690, 93 So.2d 808
(19ST) cccccccccecccccccccceeeseee 8,26

Leverett v. State,

462 So.2d 972 (Ala.Crim.App.
C19SE) cccccccccecesecececceococes 5

Maddox, et al., v. State,
_So.2d_ (Ala.Crim.App.,
June 11, TOSS) ccccccccccceececcce 2,10,12

Maddox v. State,

So.2d__—- (Ala.Crim.App.,
Sept. 9, 19G6) ccccccccccescscccee 2,18

Michigan v. Clifford,
464 U.S. 287, 7/8 L.Ed.2d 477,

104 S.Ct. 641 CT9SE) ccoccccscococe 28
Michigan Vv. oes
3 oBe , 206 L.Ed.2d 486,
96 S.Ct. 1942 (1977) eccccccccccecs 28

TABLE OF CASES

PAGE

Oliver v. United States,
_U.S., 80 L.Ed.2d 214, 104
SoCt. (1984) .ccccccccccccccccces 27

Pulley v. Harris,
465 U.S. 37, 79 L.Ed.2d 29,
104 S.Ct. 871 [Feel 66s ee CR KOO 17

Rakas v. Illinois,

439 U.S. 128, 58 L.Ed.2d 387,
99 S.C. 421 (ISTE) ccccccccccces 19,31

Rawlings v. Kentucky,

448 U.S. 98, 65 L.Ed.2d 633,
1EO BoC. ZISS CEPSS) co cccvvccses 20,31

Roberts v. State,
Ba (Ala.Crim.

App. ae ee a a hk 6 ae ce en ee oe 9

Rummel v. Estelle,
445 U.S. 263, 63 L.Ed.2d 382,
Se BeGtc Biss C VPEO he ccnecesess 17

Slagle v. Ohio,

366 U.S. 259, 6 L.Ed.2d 277,
SI S.Ct. 1076 (1961) .ccccccccvece 25

Smith v. Wainwright,
U.S._, 85 L.Ed.2d 151,
T05 BoGtes 1883 a. 3: eer se 17

Smith v. Wainwright,
741 Foam W288 (itth Cic. 1984).. 17

vi

TABLE OF CASES

PAGE
Solem v. Helm,

463 U.S. 277, 77 L.Ed.2d 637,
103 S.Ct. 3001 (1983)... eeeeeee 17

Stanley v. Georgia,

89 + 1243 (1969) .cccccccccce 28

State v. Hobron,
65 Haw. 157 648 F.2d 194
(VBS Zpccccnesecscserceseseeseseve 29

United States v. Allen,
675 F.2d 1373 (9th Cir. 1980)... 19,29

United States v. Karo,

468 U.S. _, 82 L.Ed.2d 530,
104 S.Ct. 3296 CTPSS Ve csccvtcoss 12,24,28

United States v. Lace,
669 F.2d 46 (2nd Cir. 1981)..... 19,29

United States v. Salvacci,

448 U.S. 83, 65 L.Ed.2d 619,
100 §.Ct. 2547 (19G0) .cccoccccsecs 19-20,32

United States v. 37 Photographs,
402 U.S. 363, 28 ce a3,

91 S.Ct. 1440 (1971). ccc eeeeeees 28

United States v. Toborda,
635 F.2d 113 (2nd Cir. 1980).... 27-29

United States v. Toborda,
491 F.Supp. 50 (E.D.N.Y.1980)... 29

United States v. Whaley,
779 F.2d 585 (11th Cir. 1985)... 19,29

vii

TABLE OF STATUTES

PAGE
Code of Alabama, 1975,
Title 12, Section 12-22-130....... 5
Title 14, Section 14-9-41....eeee. 9
Title 15, Section 15-22-26........ 9
Title 20, Section 20-2-70...ccccee 3
Section 20-2-80.....ccee-% 3,9
Section 20-2-81........4. 9

United States Code,

Title 28, Section 1257.ccccccsece ante,l,

Alabama
Rule
Rule

Rule

Rule
Rule

Rule

ii;post
3,4,18,
20,24,31

TABLE OF RULES OF COURT

Rules of Appellate Procedure,
PEevTEerrrrrer re tee 5
L PPOUTTETICTCT CTT Le 5
Wc cciececsecsseccciccesecesse Gytg th
25
| Trrrrrrr rT rrrrerrererr rs i 7
i! POPPER ETELOPET ELE 5
ee eee ee ee ee ee ee ee a 6

viii

NO. 86-426

IN THE SUPREME COURT OF THE
UNITED STATES
OCTOBER TERM, 1985

RICHARD M. MADDOX, VICKIE ELLEN
CALLAHAN, AND GARY DEAN GILLUM,

PETITIONERS,
Ve
STATE OF ALABAMA,
RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF ALABAMA

BRIEF AND ARGUMENT IN OPPOSITION
TO THE PETITION

OPINIONS BELOW

The decisions and opinions of the
Alabama appellate courts will not be

reported until the state appellate

litigation is complete, at which time they
will be reported as follows:

Maddox, et. al. v. State, So.2d_
(Ala.Crim.App., June 11, 1985)

A copy of the same is appended to the
Petition.

Ex parte Maddox, et al.; In Re:
Maddox, et al. v. State, So.2d_

(Ala. April 25, 1986)

A copy of the same is also appended to the

petition.

Maddox v. State, So.2d__

(Ala.Crim.App., Sept. 9,
1986) !

lan application for rehearing by
Petitioner Maddox is still pending in the
Court of Criminal Appeals of Alabama.

JURISDICTION

The petitioners have invoked this
Honorable Court's jurisdiction under 28

U.S.C. TASFUS) 6

CONSTITUTIONAL PROVSISIONS INVOLVED

The Petitioners are raising an alleged
claim under the Fourth Amendment to the
Constitution of the United States. In state
court there was raised and is still being
litigated a claim under the Eighth Amendment

to the Constitution of the United States.

STATUTORY PROVISIONS INVOLVED

Petitioners Maddox and Gillum were
convicted of trafficking in marijuana under

Section 20-2-80(1), Code of Alabama, 1975.

Petitioner Callahan was convicted of
possession of marijuana under Section

20-2-70(a), Code of Alabama, 1975 (Appendix

oe

STATEMENT OF THE CASE AND THE FACTS

The main issues at this point in the
litigation are:

1. Whether the judgment of the Alabama
Supreme Court is final within the meaning of
28 U.S.C. §1257, and

2. Whether the Alabama Supreme Court
was presented with the claim now advanced by
the Petitioners at a time and in a manner
which would have allowed the Alabama Supreme
Court to pass on it.

Any resolution of issue 2, above,
requires some knowledge of Alabama Appellate
practice. A brief digest of the same is,
therefore, presented under "A", below.

A.

ALABAMA APPELLATE PRACTICE

Alabama law makes appeal liberally

available, and all criminal convictions can

be appealed by the convict.2 uowever, there
is no plain error rule, except in death
cases, (Rule 45A A.R.A.P. Appendix). To
obtain review of a claim, appellant must
obtain an adverse ruling from the trial

court. Felder v. State, 470 So.2d 1321,

1326 (Ala.Crim.App. 1984); aff'd sub nom Ex

parte Felder, 470 So.2d 1330 (Ala. 1985);

Leverett v. State, 462 So.2d 972, 979

(Ala.Crim.App. 1984); cert. denied.

However, if an adverse ruling is obtained in
the trial court, the Court of Criminal

Appeals of Alabama must review it, if it is

2code of Alabama, 1975

"§12-22-130. Appealing judgment of
conviction.

"A person convicted of a criminal
offense in the circuit court or other court
from which an appeal lies directly to the
Supreme court or court of criminal appeals
may appeal from the judgment of conviction
to the appropriate appellate court."

See also Rules 1 & 3, A.R.A.P., Appendix "B"
to this brief.

argued on appeal and may review it, even if it
is not argued. Rule 45B A.R.A.P. Appendix "B".

In comparison with the liberal allowance of
appeal, discretionary review by the Alabama
Supreme Court, although available in most, if
not all cases, is circumscribed by several
procedural technicalities.

First, Supreme Court review is limited to
facts found by the Court of Appeals and set out
in that Court's opinion, although a remedy is
provided to parties who believe that the Court
Of Appeals erred in not reciting facts shown by
the record or in reciting facts not supported by
the record. Rule 39(k) A.R.A.P. Appendix "B".
Failure to preserve essential facts prevents

Supreme Court review. Ex parte Grear, 484 So.2d

481 (Ala. 1985); Ex parte Genesco, 394 So.2d 385

(Ala. 1981); Ex part Phelps, 339 So.2d 124 (Ala.

1978).

Second, before petitioning the Alabama

Supreme Court, the party must apply for

rehearing in the Court of Appeals "... on
the point, issue or decision. ..." on which
review will be sought in the Supreme Court.
Rule 39(a) A.R.A.P. Appendix "B". See Rule
40 A.R.A.P. Appendix "Br, for the require-
ments for rehearing. Failure to raise a
point on rehearing prevents Supreme Court
review, even if the point was argued on
appeal.

Third, after obtaining an adverse
ruling on his application for rehearing, the
party must petition the Alabama Supreme Court
for a writ of certiorari and show how the
issues on which he desires review fit into
one or more of certain well defined
categories. Rule 39(c) A.R.A.P. Appendix
"B". The Alabama Supreme Court is not
authorized to consider claims not presented

in the petition (Beck v. State, 365 So.2d

1006, 1007 [Ala. 1978]; Bland v. State, 277

Ala. 4, 166 So.2d 735 [1964]) and will not

consider claims presented in the petition

but not argued in brief. Jackson v. State,

265 Ala. 690, 692, 93 So.2d 808 (1957).
B.

THE PROCEDURAL HISTORY OF THIS CASE

1.

AT THE TRIAL LEVEL

The Petitioners were indicted by the
Grand Jury of Coosa County, Alabama for the
trafficking in (Maddox and Gillum) and
possession of (Callahan) marijuana. They
moved to suppress the evidence seized

pursuant to a facially valid search warrant

on the grounds that the affidavit on which
the warrant was issued contained certain
allegedly illegally obtained evidence. Ata
hearing on the motion it appeared that the
affiant officer had made observations of the
premises from several points which were
beyond the curtilage and had observed

plants growing outside of a green house and,

with the use of binoculars from said

8

beyond-the-curtilage point, had identified the
plants as marijuana. The officer then moved to
a point within the curtilage and made further
observations. All of the officer's observations
were placed before the warrant magistrate in the
affidavit and sworn testimony. Although the use
of binoculars was shown without dispute at the
hearing, no particular issue was made of it at
the trial level. In addition, it did not appear
what, if any, standing the Petitioners had in
the premises. The motion to suppress was
overruled, and Maddox went to trial. On
conviction, Maddox was sentenced to fifteen (15)
years3 imprisonment, after an unfavorable pre-

sentence report. Some months later, the other

3There is no provision for a maximum
sentence under Section 20-2-80(1), Code of
Alabama, 1975; Appendix "A". Under it, Maddox
could be paroled after serving three (3) years.
(Ibid, Sections 15-22-26, 20-2-80[1][a] and
8ifa]). Persons convicted of trafficking are
eligible for "good time". (Ibid, Section
14-9-41[a][1]. See also Roberts v. State, 482
So.2d 1293 [Ala.Crim.App. 1985]) All statutes
are set out in Appendix "A".

9

Petitioners entered plea bargains, under which
Gillum was convicted of trafficking in
marijuana and sentenced to four (4) years
inprisonment and Callahan was convicted of
possession of marijuana and sentenced to three
(3) years inprisonment. (See the trial records

generally and Maddox, et al. v. State, So.2d

_{Ala.Crim.App. June 11, 1985]; Mns.Op.pp.1-9)

y
APPEAL

On appeal, the Petitioners contended that
the officer's intrusion into the curtilage
tainted the warrant and voided it, not-
withstanding the initial beyond-the-curtilage
observations. The issues presented in the
Petitioners' brief in the Court of Criminal

Appeals were set out as follows:

10

" ISSUES PRESENTED FOR REVIEW

we Does the Plain View Doctrine
apply where, as in the case at
bar, the initial intrusion is un-
lawful and unconstitutional?

a © Does the Open Fields
Doctrine apply to property within
the curtilage of the dwelling?

"III. Should Appellant Maddox's
incriminating statements be sup-
pressed in that they were the
direct result of an illegal and

unconstitutional search and
seizure?" (Appellants' Brief,
page 1)

In a supplemental brief, the following issues
were presented:

"ISSUES PRESENTED FOR REVIEW

"ZT. Does the Plain View Doctrine
apply where, as in the case bar,
the initial intrusion is unlawful
and unconstitutional?

ato Does the Open Fields
Doctrine apply to property within
the curtlilage of the dwelling?

"IIIT. Did the trial court abuse its
discretion in sentencing Appellant
Maddox to fifteen years in the
custody of the Alabama Department
of Corrections, while sentencing
Appellants Callahan and Gillum to

11

three and four years, respectively,

in violation of the Constitution of

the United States and the State of

Alabama?" (Appellants' Supple-

mental Brief, page iii)

The Court of Criminal Appeals found,
without reaching the standing issue, that
the officer's intrusion within the curtilage
violated the Petitioners’ U.S. Constitutional
rights.4 However, the Court concluded that
there was sufficient legally obtained evidence
before the magistrate to authorize the
warrant, and upheld the search warrant.> The
Court also rejected Petitioner Maddox's con-
tention that his sentence was disproportionate.

The Court affirmed all three convictions and

sentences. Maddox, et al. v. State, So.2d_

(Ala.Crim.App. June 11, 1985).

4Tmhe State of Alabama has never conceded
and still objects to this conclusion.

9See United States v. Karo, 468 U.S. , 82
L.Ed.2d 530, 544-545, TOF S.Ct. 3296, 3303
(1984), cited by the Court of Appeals at page
13 of the manuscript opinion. See also Franks
v. Delaware, 438 U.S. 154, 171-172, 57 L.Ed.2d
667, 662, 98 S.Ct. 2674 (1978).

12

The Petitioners applied for rehearing and
argued the following points:

"I. THE ILLEGAL AND UNCONSTITU-
TIONAL INTRUSION BY OFFICER WINDSOR
INTO THE CURTILAGE OF THE RESIDENCE
WHERE APPELLANTS RESIDED REQUIRES
THE SUPPRESSION OF ALL EVIDENCE DIS-
COVERED." (Rehearing Brief, page 7)

"II. THE TRIAL COURT ABUSED ITS DIS-
CRETION IN SENTENCING APPELLANT MAD-
DOX TO 15 YEARS IN THE CUSTODY OF
THE ALABAMA DEPARTMENT OF COR-
RECTIONS, WHILE SENTENCING
APPELLANTS CALLAHAN AND GILLUM TO
THREE AND FOUR YEARS, RESPECTIVELY,
IN VIOLATION OF THE CONSTITUTIONS OF
THE UNITED STATES AND THE’ STATE OF
ALABAMA.” (Rehearing Brief, page 20)

No issue was made of the officer's use of
binoculars for his beyond-the-curtilage
identification of the marijuana plants, either

On Original submission or rehearing.

3.

CERTIORARI IN THE ALABAMA
SUPREME COURT

The issues presented to the Alabama
Supreme Court in the Petitioners' certiorari

petition and argued in their brief were the

13

same as those raised on rehearing in the Court
of Criminal Appeals. As stated in the

Petitioners’ brief they were:

"ISSUES PRESENTED FOR REVIEW

ae Does the illegal and unconsti-
tutional intrusion by Officer Wind-
sor into the curtilage of the
residence where Petitioners resided
require the suppression of all
evidence discovered within the
curtilage?

"Eds Did the trial court abuse its
discretion in sentencing Petitioner
Maddox to 15 years in the custody of
the Alabama Department of Cor-
rections, while sentencing Peti-
tioners Callahan and Gillum to three
and four years, respectively, in
violation of the constitutions of
the United States and the State of
Alabama?" (Petitioners' Brief, page
Vv)

The Alabama Supreme Court issued the writ and
affirmed the holding and reasoning of the
Court of Criminal Appeals on the search» and
seizure issue. In addition, the Alabama

Supreme Court ruled:

14

"Maddox also contends in this Court,
as he did below, that the trial
court abused its discretion in
sentencing him to fifteen years' im-
prisonment, while sentencing Cal-
lahan and Gillum to three and four
years’ imprisonment, respectively.

"The appellate courts of this state
are generally prohibited from re-
viewing the propriety of a sentence
which is within the statutorily pre-
scribed limits, as is Maddox's
sentence. Brown v. State, 392 So.2d
1248 (Ala.Crim.App. 1980), cert.
denied, 392 So.2d 1266 (Ala. 1981);
Code of Alabama, 1975, §20-2-80.
However, the appellate courts may
review a sentence, which, although
within the prescribed limitations,
is so disproportionate to the
offense charged that it constitutes
a violation of a defendant's Eighth
Amendment rights. Ex parte Harbor,
465 So. 2d 460, 461 (Ala. 1985)
(Faulkner, J., dissenting).

"United States Supreme Court in
Solem v. Helm, 463 U.S. 277 (1983),
recognized that reviewing courts
should grant substantial deference
to the authority of legislatures in
determing the kinds of limits of
punishment for crimes, as well as to
the discretion that trial courts
possess in sentencing convicted cri-
mMinals. Yet, the sentence should be
proportionate to the crime. In
making proportionality determina-
tion, a court should be guided by
objective criteria, including:

15

"(i) the gravity of the of-
fense #pd the harshness of
the menalty; (ii) the
sentences imposed on other
Criminals in the same juris-
diction; and (iii) the
sentenced imposed for com-
mission of the same crime in
Other jurisdictions.' Solem
v. Helm, 463 U.S. at § 290-
291.

"Maddox received the max imum
sentence allowed by law for his
first felony conviction, while
Gillum and Callahan received four-
year sentence and a three-year
sentence, respectively. The
potential excessiveness of Maddox's
sentence requires a review pursuant
to the Eighth Amendment. Because
the Court of Criminal Appeals did
not address this issue, we must re-
mand this cause to that court with
directions to consider this case in
light of Solem v. Helm, supra. It
is so ordered.

"AFFIRMED IN PART AND REMANDED

WITH DIRECTIONS." (Ex parte Maddox,
_So.2d. [Ala. April 25, 1986], Mns.-

Op.pp. 6-7)

The Petitioners applied for rehearing in the

16

Alabama Supreme Court, as did the State.®© In
their brief in support of their application
for rehearing, the Petitioners for the first
time in any Alabama court argued that the
officer's use of binoculars from beyond the
curtilage constituted a violation of their
constitutional rights. However, even at this
point, the Petitioners did not present this as
a separate issue. Both applications were
overruled.

On remandment, the Court of Criminal Appeals

ruled, on September 9, 1986, that Maddox's sentence

6The State's application was limited to
the ruling on the proportionality of Maddox's
sentence. The State pointed out that the
Alabama Supreme Court's ruling was in patent
conflict with this Honorable Court's decisions
and opinions in Pulley v. Harris, 465 U.S. 37,
79 L.Ed.2d 29, 104 S.Ct. 871 (1984); Solem v.
Helm, 463 U.S. 277, 77 L.Ed.2d 637, 103 S.Ct.
3001 (1983) and Rummel v. Estelle, 445 U.S.
263, 63 L.Ed.2d 382, 100 S.Ct. 1133 (1980).
Conflicts with United States Court of Appeals
decisions were also called to the Alabama
Supreme Court's attention. E.g., Smith v.
Wainwright, 741 F.ed 1248, 1 Tvlen Cir.
1984] cert. denied, _U- S._, 85 L.Ed.2d 151,
105 S.Ct. 1883 and Hitchcock v. Wainwright,
770 F.2d 1514 (11th Cir. 1985).

17

was not disproportionate under the Eighth

Amendment to the U.S. Constitution. Maddox v.

State, _So.2d. (Ala.Crim.App. Sept. 9, 1986) On
September 23, 1986, the Petitioner applied for
rehearing in the Court of Criminal Appeals of

Alabama. Said application is still outstanding.

SUMMARY OF THE ARGUMENT

1. Since there is an outstanding federal
question still in active litigation in the state
courts, this case is not final for purposes of
28 U.S.C. §1257.

2. Since the Petitioners did not raise the
issue they seek to raise here on rehearing in the ~
Court of Criminal Appeals of Alabama nor in their
certiorari petition nor in their supportive brief
in the Alabama Supreme Court, said issue was
never before the Alabama Supreme Court. Rule
39(a) & (c) A.R.A.P. Appendix "B". Therefore,
Said issue is not properly before this Honorable

Court. 28 U.S.C. §1257; Cardinale v. Louisiana,

394 U.S. 437, 22 L.Ed.2d 398, 89 S.Ct. 1162
(1969).

18

3. The use of binoculars to enhance an
observation of objects that are not inside a
home or other building from a point beyond the
curtilage, does not violate the Fourth

Amendment. United States v. Allen, 675 F.2d

1373 (9th Cir. 1980), United States v. Lace,

669 F.2d 46 (2nd Cir. 1981); United States v.

Whaley, 779 F.2d 585 (11th Cir. 1985). See

also Air Pollution Variance Board v. Western

Alfalfa Corp., 416 U.S. 861, 40 L.Ed.2d 607, 94

S.Ct. 2114 (1974); California v. Ciraolo, 476

U.S._, 90 L.Ed.2d 210, 106 S.Ct. (1986); Dow

Chemical Company v. United States, 476 U.S. _,

90 L.Ed.2d 226, 106 S.Ct. (1986). In
addition, the Petitioners never made any effort
to show what standing they had in the observed
premises. Therefore, the Petitioners have no
standing to raise the claim they now raise.

Rakas v. Illinois, 439 U.S. 128, 58 L.Ed.2d

387, 99 S.Ct. 421 (1978); United States v.

Salvucci, 448 U.S. 83, 65 L.Ed.2d 619, 100

19

S.Ct. 2547 (1980); Rawlings v. Kentucky, 448

U.S. 98, 65 L.Ed.2d 633, 100 S.Ct. 2556

(1980).

ARGUMENT

I.

THIS CASE IS NOT FINAL WITHIN
THE MEANING OF 28 U.S.C.§1257

Recognizing that this case is not final,

the Petitioners urge this Honorable Court to

follow the reasoning of Cox Broadcasting Corp.

v. Cohn (420 U.S. 469, 43 L.Ed.2d 328, 95 S.Ct.

1029 [1975]). However, In Cox this Court

observed:

",..{The] circumstances... [permit-
ting a departure from the finality
requirement are] said to be very
few,...; but as the cases have un-
folded, the Court has- recurringly
encountered situations in which the
highest court of a State has finally
determined the federal issue present
in a particular case, but in which
there are further proceedings in the
lower state courts to come. There
are now at least four categories of
such cases in which the Court has
treated the decision on the federal
issue as a final judgment for’ the
purposes of 28 U.S.C. §1257

20

|

and has taken jurisdiction without
awaiting the completion of the ad-
ditional proceedings anticipated in
the lower state courts. In most, if
not all, of the cases in’ these cate-
gories, these additional proceedings
would not require the decision of
other federal questions that might
also require review by the Court at a
later date... and immediate’ rather
than delayed review would be the best
way to avoid the mischief of economic
waste and of delayed justice,. ..."
(420 U.S. 469, 477-478, 43 L.Ed.2d
328, 339; emphasis supplied.)

The difference between the instant case and Cox
and the other cases wherein this Honorable

Court has dispensed with the finality
requirement is that in this case the still
pending issue is a federal constitutional
question.’ Should the Alabama Courts finally
reject Maddox's Eighth Amendment proportionality
claim, Maddox will certainly be seeking review

in this Court, as will the State of Alabama in

7The Petitioners characterize the issue as
a state law issue, but the Alabama Supreme
Court clearly based its decision on the Eighth
Amendment to the Constitution of the United
States.

21

the event of an opposite holding. Why not
decide all of the federal questions in one
proceeding, rather than one now and another
later? On the other hand, the Petitioners have
suggested no harm that will be visited on them,
if piecemeal review is not allowed.

This case is not final, and the
Petitioners have shown no reason for proceeding
now. For these reasons, the writ should be
denied.

II.
THE ALABAMA SUPREME COURT NEVER

HAD AN OPPORTUNITY TO RULE ON
THE ISSUE PRESENTED BY THE PETITION.

Prior to their application for rehearing

in the Alabama Supreme Court the Petitioners’

search and seizure argument had two parts:

1. In entering the curtilage after his
initial observation of marijuana from an open
field, the officer violated the petitioners'

Fourth Amendment rights, and

22

4

2. Therefore, the search warrant was
void.
The State's response was as follows: (1) The
officer's action in entering the curtilage was
reasonable in that his observations from the
open field had given him probable cause and his
intrusion into the curtilage was minor, brief
and justified by the need to determine the
exact nature and size of the operation. (2) The
Petitioners have never made any effort to show
their standing to object to the intrusion;
indeed, Petitioner Maddox specifically denied
any interest in the property. And, (3) prior
to his intrusion, the officer had lawfully
obtained sufficient evidence to constitute
probable cause and had presented this lawfully
obtained evidence to the magistrate. The Court
of Criminal Appeals agreed that the officer had
violated the Fourth Amendment in entering the
curtilage, declined to address the State's

Standing argument and upheld the search warrant

23

under United States v. Karo, (468 U.S. _, 82

L.Ed.2d 530, 544-545, 104 S.Ct. 3296 [1984]).
The same arguments were advanced on rehearing
in the Court of Appeals and on certiorari in
the Alabama Supreme Court, and the results were
the same. Until rehearing in the Alabama
Supreme Court, no issue was made of the
officer's use of binoculars for his
beyond-the-curtilage identification of the
marijuana. This issue, the only one presented
by the instant petition in this Court, was
first mentioned in the argument on the
Petitioners’ application for rehearing in the
Alabama Supreme Court. The Alabama Supreme
Court denied rehearing without opinion.

Under the plain words of 28 U.S.C.
§1257(3), the state supreme court must have had
the opportunity to address the federal question
on which review is sought here. Where, as

here, a state supreme court does not address

24

such an issue, it is presumed that the issue
was not properly before that Court.

Exxon Corp. v. Eagerton, note 3, 462 U.S. 176,

181, 76 L.Ed.2d 497, 504, 103 S.Ct. 2296

(1983); Hanson v. Denckla, 357 U.S. 235, 244, 2

L.Ed.2d 1283, 1292, 78 S.Ct. 1228 (1958).

Slagle v. Ohio, 366 U.S. 259, 264, 6 L.Ed.2d

277, 281, 81 S.Ct. 1076 (1961). However, no
such presumption is necessary here, since the
Petitioners' failure to comply with the Alabama
Rules of Appellate procedure with regard to the
binoculars issue clearly barred the Alabama
Supreme Court from considering that issue. Any
one of the following deprives the Alabama
Supreme Court of authority to review an issue
On certiorari: (1) Failure to raise the point
on rehearing in the Court of Criminal Appeals
(R. 39( [a] A.R.A.P. Appendix "B"), (2) Failure
to present the point in the certiorari petition

(Beck v. State, 365 So.2d 1006, 1007 [Ala.

1978]; Bland v. State, 277 Ala. 4, 166 So.2d

25

a

735 [1964]) or, (3) Failure to argue the point in

brief. Jackson v. State, 265 Ala. 690, 692, 93

So.2d 808 (1957). The Petitioners failed in each
of these regards as to the binoculars issue.

Even if the Alabama Supreme Court noticed this
claim, buried as it was in the rehearing argument
and desired to address it, the Court would have
had no jurisdiction to do so. Therefore, this
Claim is as a practical matter presented for the
first time in this Court, and, for that reason,

review should be denied. Cardinale v. Louisiana,

394 U.S. 437, 22 L.Ed.2d 398, 89 S.Ct. 1162
(1969).

III.

THE USE OF BINOCULARS DID NOT
VIOLATE THE PETITIONERS‘ RIGHTS.

While acknowledging, at least in this

Court, that the officer's observations from an

26

Leth alia re A a nla

eh ae iin rik it Ret a il aa

PMI PASS PIAS RG Li te APOSTLES fash

ee ah ae a

Ses BN

Ss aie is

Piss ec WALD: tare

open field were proper,8 the Petitioners argue
that the officer's use of binoculars violated
the Fourth Amendment. The numerous cases cited
by the Petitioners in support of this position
need not be distinguished by the Respondent
State, because they all support the legality of

the enhanced observations sub judice.

The only case cited by the Petitioners
which found any enhanced observation

objectionable was United Stats v. Toborda (635

F.2d 131 [2nd Cir. 1980]). But, the objected

to enhanced observations in Toborda were of

activities inside a home. The courts have

always recognized greater privacy rights in the

home than elsewhere. Compare Camara v. Munici-

pal Court, 387 U.S. 523, 18 L.Ed.2d 930, 87 S.

Ct. 1727 (1967) with Donovan v. Dewey, 452 U.S.

594, 69 L.Ed.2d 262, 101 S.Ct. 2534 (1981);

80liver v. United States, U.S. , 80
L.Ed.2d 214, 104 S.Ct. (1984); Hester v. United
States, 265 U.S. 57, 68 L.Ed.2d 898, 44 S.Ct.
445 (1929).

27

Michigan v. Tylar, 436 U.S. 499, 56 L.Ed.2d

486, 98 S.Ct. 1942 (1977) with Michigan v.

Clifford, 464 U.S. 287, 78 L.Ed.2d 477, 104

S.Ct. 641 (1984), and Stanley v. Georgia, 394

U.S. 557, 22 L.Ed.2d 542, 89 S.Ct. 1243 (1969)

with United States v. 37 Photographs, 402 U.S.

363, 376, 28 L.Ed.2d 822, 834, 91 S.Ct. 1440

(1971). See also United States v. Karo, 468

U.S._, 82 L.Ed.2d 530, 104 S.Ct. 3296 (1984)
The United States Court of Appeals for the

Second Circuit in Toborda simply applied this

Classic policy to enhanced views. The marijuana
plants observed through the binoculars in the
instant case were not inside a home or any other

building and, therefore, Toborda does not apply

here.

The other cases cited and relied on by the
Petitioners all approved of the use of
binoculars for observing outside conditions
and activities within a curtilage from a point

beyond. United States v. Allen, 675 F.2d 1373

28

(9th Cir. 1980)9; United States v. Lace, 669

F.2d 46 (2nd Cir. 1981)1!9: United States v.

Whaley, 779 F.2d 585 (11th Cir. 1985).1! The
marijuana plants observed in the instant case
were growing in the ground, inside the
curtilage but outside of any building. Compare

State v. Hobron (65 Haw. 157, 648 F.2d 194

[1982]), wherein the Supreme Court of Hawaii
refused to extend its earlier decisions on
telescopic observation of the interior of
buildings to enhanced observations of exterior
conditions. The decisions of this Honorable
Court on enhanced observation and photography

of exteriors have also consistently refused to

9United States v. Toborda (491 F.Supp. 50
[E.D.N.Y., 1980]) distinguished at 675 F.2d
1373, 1360.

10yunited States v. Toborda (635 F.2d 131
[2nd Cir. 1980]) distinguished at 669 F.2d 46,
51.

'\Itoborda distinguished at 779 F.2d 585,
591, with regard to binocular enhanced
observation of the interior of a building.

29

ee

find fault under the Fourth Amendment.

Air Pollution Variance Board v. Western Alfalfa

Corp., 416 U.S. 861, 40 L.Ed.2d 607, 94 S.Ct.

2114 (1974); California v. Ciraolo, 476 U.S. ,

90 L.Ed.2d 210, 106 S.Ct. (1986); Dow Chemical

Company v. United States, 476 U.S. _, 90 L.Ed.2d

226, 106 S.Ct. (1986).

Finally, these Petitioners have made no
effort to show their standing to object to any
search of these premises. Petitioner Gillum was
listed in the tax records as the owner of this
property, but, for all that appears he may have
leased the property to another and have had no
more right to be on the premises than the
officers. The record is silent as to Petitioner
Callahan's connection with the property, and
Petitioner Maddox affirmatively denied any
connection with the property at all. For all
that appears of record in this case, these
Petitioners were trespassers on the property.

This record will not support a finding that

30

al lias Bie TY estes SLA ERY

these Petitioners had any standing at all to
question any observation or search of this

property. Rakas v. Illinois, 439 U.S. 128, 58

L.Ed.2d 387, 99 S.Ct. 421 (1978); United

States v. Salvucci, 448 U.S. 83, 65 L.Ed.2d 619,

100 S.ct. 2547 (1980); Rawlings v. Kentucky, 448

U.S. 98, 65 L.Ed.2d 633, 100 S.Ct. 2556 (1980).

CONCLUSION

In conclusion, the Respondent submits as
follows:

1. This case is not final for purposes of
28 U.S.C. §1257.

2. The Alabama Supreme Court never had the
Opportunity to address the issue the Petitioners
raise here.

3. The enhanced observations were mani-
festly legal, and

4. The Petitioners have no standing to

raise the issue. here presented.

31

Therefore, the Respondent State prays that
the writ be denied.

Respectfully submitted,

CHARLES A. GRADDICK 4
ATTORNEY GENERAL )

JAMES B. PRUDE
ASSISTANT ATTORNEY GENERAL

JOSEPH G. L. MARSTON, III
ASSISTANT ATTORNEY GENERAL

ADDRESS OF COUNSEL:

OFFICE OF THE ATTORNEY GENERAL
ALABAMA STATE HOUSE

11 SOUTH UNION STREET
MONTGOMERY, ALABAMA 36130
(205) 261-7300

32

|
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5
:
i
¥

CERTIFICATE OF SERVICE

I, Joseph G. L. Marston, III, an Assistant
Attorney General of Alabama, a member of the Bar
of the Supreme Court of the United States and
one of the Attorneys for the State of Alabama,
hereby certify that on this ____day of October,
1986, I did serve the requisite number of copies
of the foregoing on the Attorney for Richard M.
Maddox, Vickie Ellen Callahan, and Gary Dean
Gillum, Petitioners, by mailing the same to said
attorney, first-calss postage prepaid and
addressed as follows:

Honorable David Cromwell Johnson
Attorney at Law

300 21st Street, North
Birmingham, Alabama 35203

JOSEPH G. L. MARSTON, III
ASSISTANT ATTORNEY GENERAL

ADDRESS OF COUNSEL:

Office of Attorney General
Alabama State House

11 South Union Street
Montgomery, Alabama 36130
(205) 261-7300

33

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_2479%3A2. Public record. Not legal advice.