Petition for Writ of Certiorari — Felker v. Pennsylvania

~ es

89-875 ff FTTS

° JEC 1 3989

JOSEPH F. SPANIOL, yp.

CLERK

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1989

ROBERT E. FELKER,

Petitioner,

Vv.

COMMONWEALTH OF PENNSYLVANIA,

Respondent.

WRIT OF CERTIORARI

TO THE SUPREME COURT OF PENNSYLVANIA

PETITION FOR WRIT OF CERTIORARI

William H. Robinson Jr.

Hiscott and Robinson

in 900 Scott Street

Stroudsburg, PA 18360

(717) 421-4721

Counsel of Record

D VIEW

1. Did the trial court deny the Peti-

tioner his right to due process of law by

erroneously instructing the jury that under

75 Pa.c.S. § 3742--requiring motorists to

stop and render assistance after accidents

involving death or serious injury--the Peti-

tioner could be convicted on the basis of

Simple negligence rather than on the basis of

a knowing or reckless violation?

2. Did the warrantless search of the

Petitioner's vehicle while in police custody,

and the seizure of items from its exterior,

constitute a violation of the fourth amend-

ment, where the vehicle was itself evidence

of a crime and there was ample opportunity to

obtain a search warrant?

eneeecieetle

TABLE OF CONTENTS

;

Page ;

QUESTIONS PRESENTED FOR REVIEW... i

TABLE OF CONTENTS .....+.24.e46-. ii

TABLE OF AUTHORITIES ........ iii

OPINIONS BEEON ... ss tb tte ee 1

Te; oe eee eee 2

CONSTITUTIONAL PROVISIONS INVOLVED . 2

STATEMENT OF THE CASE ....... 6

ARGUMENT

# THE PETITIONER WAS DENIED DUE

PROCESS BECAUSE THE STATE TRIAL

COURT AND APPELLATE COURT

INTERPRETED A STATE CRIMINAL

PROVISION IN A MANNER WHICH

CHANGED THE ELEMENTS OF THE

CRIM . «6st sO 12

II. THE SEARCH AND SEIZURE OF ITEMS

FROM THE PETITIONER'S VEHICLE WAS

VIOLATIVE OF THE FOURTH AMENDMENT

BECAUSE THE POLICE FAILED TO

OBTAIN A WARRANT ....... 22

CONCENIGTION . . ‘és «2 oe 33

APPENDIX

wije

Cases » Page

Arizona v. Hicks, 480 U.S. 321

Pe 28

Baptist v. Blackburn, 786 F.2d 704

(Sth Cir. 1986) . ++ + +s >

Boule Vv. City of Columbia, 378 U.S.

347 (1964) . ~~ -— . s+ 2

California v. Carney, 471 U.S.

386 (1985) :

Cardwell v. Lewis, 417 U.S. 583

Os ) a ae ee ee 25, 26, 29,

Chambers v. Maroney, 399 U.S. 42

(1970) .. - .

Commonwealth v. Kauffman, 323 Pa.

Super. 363, 470 A.2d 634

ee - 66 & & © 8 © ee 8 8 8 20,

Coolidge v. New Hampshire, 403 U.S.

ra ee

Darnell v. Swinney, 823 F.2d 299

(9th Cir. 1987), cert.

denied, 108 S. Ct. 1012

(1988) ae

In re Winship, 397 U.S. 358

(1970)

-illi-

18

17

24

30

24

30

16

0 U ES (C :

Cases

Jackson v. Virginia, 443 U.S. 307

Ci, ) ee ee ee ee ee ee ee ee

Katz v. United States, 389 U.S. 347

[ae «© 6« «© 6 6 & e © 6 8 6 lt

Patterson v. New York, 432 U.S. 197

2, Paar a a ee ee

People v. Robinson, 209 Cal. App.

3d 1047, 257 Cal. Rptr.

772 (1989) ava ae

Prantil v. California, 843 F.2d 314

(9th Cir. 1988) s se

State v. Foster, 110 Idaho 848, 718

P.2d 1286 (Ct. App. 1986)

United States v. Harris, 347 U.S. 612

(1954)

=afiye=

24

16

27

20

32

17

TABLE OF AUTHORITIES (CONT. )

Statutes Page

18 Pa.C.8. § 106 ..+.+-+ 2 = © © © © © BS

ie. Ne A ee” ee a ee ee ee ee ee 2 ee er ee ee

ie 8 AS ee ee ee ee oe ee ee ee er a

1S Pa.GCabsa § 1104 . . «© «© © © © © ew @ ow os BS -

73 BmaGamn § 37482 2. « «© tw tw te etl ltl tl CUM CO

ae. i PR BS ee ee ee ee ee ee ee ee

3 W. LaFave, Search and Seizure: A

Treatise on the Fourth

Amendment § 7. 3 (b) at 80 “ape

a. See (a x ar ee eS TS e

OPINIONS BELOW

The decision of the Supreme Court of

Pennsylvania denying the Petition for Allow-

ance of Appeal was rendered on October 2,

1989, and is set forth in the Appendix at A-

1. The decision of the Superior Court of

Pennsylvania is set forth in the Appendix at

A-2. The opinion of the Court of Common

Pleas of Monroe County, which was incor-

porated by the superior court and attached to

its opinion in an appendix, appears in the

Appendix at A-34.

JURISDICTION

The jurisdiction of this court is in-

voked pursuant to 28 U.S.C. § 1257(a). The

final disposition of this case below was the

denial of the Petition for Allowance of Ap-

peal filed by the Supreme Court of Pennsyl-

vania on October 2, 1989 (App. at A-1).

ONS UTIO OVISIONS INVOLV

The fourteenth amendment states in part:

nor shall any state deprive any

person of life, liberty, or proper-

ty without due process of law[.)

The fourth amendment to the United

States Constitution states in pertinent part:

The right of the people to be se-

cure in their persons, houses,

papers, and effects against un-

reasonable searches and seizures,

shail not be violated, and no War-

rants shall issue but upon probable

cause, supported by Oath or affir-

mation, and particularily describing

the place to be searched, and the

persons or things to be seized.

75 Pa.C.S. § 3742 states in part:

Accidents involving death or per-

sonal injury

(a) General rule.--The driver

of any vehicle involved in an ac-

cident resulting in injury or death

of any person shall immediately

stop the vehicle at the scene of

the accident or as close theret© as

possible but shall then forthwith

return to and in every event shall

remain at the scene of the accident

until he has fulfilled the require-

ments of section 3744 (relating to

duty to give information and render

aid). Every stop shall be made

without obstructing traffic more

than is necessary.

(b) Penalties.--

(1) Except as otherwise pro-

vided in this section, any person

violating this section commits a

misdemeanor of the third degree.

18 Pa.C.S. § 302(b) and (c) provide:

General requirements of culpability

(b) Kinds of culpability defined.--

(1) A person acts intentional-

ly with respect to a material ele-

ment of an offense when:

(i) if the element in-

volves the nature of his

conduct or a result

thereof, it is his con-

scious object to engage

in conduct of that nature

or to cause such a re-

sult; and

(ii) if the element in-

volves the attendant cir-

cumstances, he is aware

of the existence of such

circumstances or he be-

lieves or hopes that they

exist.

(2) A person acts knowingly

with respect to a-material element

of an offense when:

(i) if the element in-

volves the nature of his

conduct or the attendant

circumstances, he is

aware that his conduct is

of that nature or that

such circumstances exist;

and

(ii) if the element involves

a result of his conduct, he is

aware that it is practically cer-

tain that his conduct will cause

such a result.

(3) A person acts recklessly

with respect to a material element

of an offense when he consciously

disregards a substantial and unjus-

tifiable risk that the material

element exists or will result from

his conduct. The risk must be of

such a nature and degree that, con-

sidering the nature and intent of

the actor's conduct and the cir-

cumstances known to him, its dis-

regard involves a gross deviation

from the standard of conduct that a

reasonable person would observe in

the actor's situation.

(4) A person acts negligently

with respect to a material element

of an offense when he should be

aware of a substantial and unjus-

tifiable risk that the material

element exists or will result from

his conduct. The risk must be of

such a nature and degree that the

actor's failure to perceive it,

considering the nature and intent

of his conduct and the circums-

tances known to him, involves a

gross deviation from the standard

of care that a reasonable person

would observe in the actor's situa-

tion.

(c) Culpability required un-

less otherwise provided.--When the

culpability sufficient to establish

a material element of an offense is

not prescribed by law, such element

is established if a person acts

intentionally, knowingly or reck-

lessly with respect thereto.

18 Pa.cC.S. § 1104 states:

Sentence of imprisonment for mis-

demeanors

A person who has been con-

victed of a misdemeanor may be sen-

tenced to imprisonment for a defin-

ite term which shall be fixed by

the court and shall be not more

than:

(1) Five years in the

case of a misdemeanor of

the first degree.

(2) Two years in the

case of a misdemeanor of

the second degree.

(3) One year in the

case of a misdemeanor of

the third degree.

STATEMENT OF THE CASE

Some time during the evening of February

26, 1987, a pedestrian on an unlighted street

with no sidewalk in Stroudsburg, Penn-

sylvania, was struck and killed by a motor

vehicle. There were no eyewitnesses to the

accident, but several persons living on the

street heard what they described as two

a

SE et oa a ae ee Dee

thuds, following which the body was found.

The next morning, the Petitioner, Robert

E. Felker, read about the accident in the

newspaper. He had been driving on the street

where the accident occurred at or about the

time of the accident and had hit the curb and

knew that he had grazed a telephone pole.

Felker did not cause any damage to the pole

and was unaware at the time of the accident

that he might also have struck a pedestrian,

who apparently was in the highway. Upon

reading the newspaper, Felker first realized

that his vehicle might have struck a pedes-

trian. He immediately contacted his at-

torney, who called the local police and noti-

fied them of what Felker had told hin.

After this call, a police officer

visited Felker at his place of business and

examined Felker's pick-up truck, which showed

signs of having recently been involved in a

collision. Felker admitted that the truck

was his and that he had been operating the

truck the night before.

With Felker's consent, the truck was

impounded at that time and, the following

day, Pennsylvania State Trooper Richard Sachs

conducted a investigation of the accident,

including a search of the truck. During his

search of the truck, Sachs removed several

pieces of physical evidence, including a

mirror and grill. This evidence was taken

without benefit of a search warrant and with-

out the consent of Felker.

Based upon the evidence seized, Sachs

concluded that Felker's truck was the ve-

hicle which struck the victim, and Felker was

then charged and following a preliminary

hearing was bound over for trial under

several statutes: Involuntary Manslaughter

es

}

:

e

(18 Pa.C.S. § 2504(a)); Recklessly Endanger-

ing Another Person (18 Pa.C.S. § 2705); Homi-

cide by Vehicle (75 Pa. C.S. §3732); Reckless

Driving (75 Pa.cC.S. § 3714); Accidents In-

volving Death or Personal Injury (75 Pa.c.S.

§ 3742), Duty to Give Information and Render

Aid (75 Pa.C.S. § 3744(a)); and Driving Ve-

hicle at Safe Sneed (75 Pa.C.S. § 3361). As

a result of a Motion to Quash, the court dis-

missed the charges of Involuntary Man-

Slaughter, Homicide by Vehicle, and Reckless-

ly Endangering Another Person.

At the suppression hearing, the court

denied Felker's Motion to Suppress Physical

Evidence (see Record at 16a), ruling that

because the officer removed items from the

outside of Felker's car where they were

plainly visible, no legitimate expectation of

privacy interest was implicated and thus no

search or seizure took place (App. at A-19).

-10-

At trial, the trial court dismissed the

counts pertaining to Driving at Safe Speed

and Duty to Give Information and Render Aid.

At the conclusion of all testimony, the case

was submitted to the jury on the two remain-

ing counts, Accidents Involving Death or Per-

sonal Injury and Reckless Driving. The trial

court instructed the jurors with regard to

the hit-and-run statute that Felker could be

convicted if they found that "the defendant

knew or in the exercise of reasonable care

should have known that his truck was involved

in an accident resulting in injury or death

to a person" (R. at 362a; App. at A-40 (em-

phasis added)). This instruction was given

over the objection of Felker, who argued that

it erroneously permitted a conviction on the

basis of a simple negligence standard, where-

as the statute required a showing of knowl-

edge or recklessness (R. at 376a, 379a).

a

-lli-

Felker was ultimately convicted on both

counts and was sentenced to one year of pro-

bation, a $2,500 fine, and 250 hours of con-

munity service. An appeal was taken to the

Superior Court of Pennsylvania, which af-

firmed the convictions, and to the Supreme

Court of Pennsylvania, in which Felker argued

both that the search of his truck violated

the fourth amendment and that "[tjhe convic-

tion of Defendant/Appellant based on the

civil negligence standard violates both Ar-

ticle I, Section 9 of the Pennsylvania Con-

stitution and the due process clauses of the

5th and 14th Amendments to the United States

Constitution" (Petition for Allowance of Ap-

peal at 5; App. at A-58). The Pennsylvania

Supreme Court denied Felker's Petition for

Allowance of Appeal in a per curiam decision.

-12-

ARGUMENT

I. THE PETITIONER WAS DENIED

DUE PROCESS BECAUSE THE

STATE TRIAL COURT AND AP-

PELLATE COURT INTERPRETED

A STATE CRIMINAL PROVI-

SION IN A MANNER WHICH

CHANGED THE ELEMENTS OF

THE CRIME.

The Petitioner, Robert E. Felker, was

convicted for violating the provisions of 75

Pa.C.S. § 3742, which states in pertinent

part:

The driver of any vehicle in-

volved in an accident resulting in

injury or death of any person shall

immediately stop the vehicle at the

scene of the accident .. . until

he has fulfilled the requirements

of section 3744 (relating to duty

to give information and render

aid).

This provision does not, by its terms, pro-

vide for any mental culpability or mental

state. Therefore, to determine the necessary

mental state for a violation of § 3744, the

=-13-<

provisions of 18 Pa.C.S. § 302 must be con-

sulted. This section states generally that,

unless otherwise provided, "a person is not

ee

guilty of an offense unless he acted inten-

tionally, knowingly, recklessly or negligent-

ly, as the law may require, with respect to

each material element of the offense." Sub-

section (c) contains the necessary mental

state applicable to this case:

(c) Culpability required unless

otherwise provided.--When the cul-

pability sufficient to establish a

material element of an offense is

not prescribed by law, such element

is established if a person acts

lessly with respect thereto.

(Emphasis added.) "Recklessly" is defined in

A Manse

subsection (b)(3), which provides that a per-

son acts recklessly “when he consciously dis-

regards a substantial and unjustifiable risk

ee ee ee

that the material element exists or will re-

‘

:

:

:

sult from his conduct" (emphasis added). The

-14-

subsection further states that the disregard

of the risk must be a “gross deviation from

the standard of conduct that a reasonable

person would observe in the actor's situa-

tion."

By contrast, negligent conduct is des-

cribed in subsection (b)(4) as when a person

"should be aware of a substantial and unjus-

tifiable risk that the material element ex-

ists" (emphasis added).

These provisions make it clear that the

Pennsylvania legislature intended a convic-

tion under § 3744 only in those circumstances

in which the defendant intentionally, know-

ingly, or recklessly violated the provision.

Significantly, a mere negligent violation is

not, under the clear guidelines set forth,

sufficient to constitute a violation.

Despite the unambiguous nature of the

required mental state for a violation of §

-15-

3744, the trial court instructed the jury in

this case that mere negligence alone would

support a conviction of Felker. In its

charge to the jury, the trial court stated:

The defendant is charged with

a misdemeanor offense of violating

a provision of the Motor Vehicle

Code commonly known as Hit and Run.

In order to find the defendant

guilty of this charge, you must

find that the Commonwealth has

proven beyond a reasonable doubt

the following elements:

1. that the defendant knew or

that his truck

was involved in an accident result-

ing in injury or death to a person.

2. that the defendant did not

stop and remain at the scene of the

accident in order to render aid and

provide information.

(R. at 363a (emphasis added).) Obviously,

the trial court substituted a simple negli-

gence standard in lieu of the recklessness

standard required by the statute. Thus, act-

ing on this erroneous instruction, the jury

-16-

could well have improperly convicted Felker

on the basis that he should have known that

he was involved in an accident involving

death or injury.

This Court has long recognized that a

conviction in state court violates federal

due process provisions unless all of the ele-

ments of the state crime are proven beyond a

reasonable doubt. Jackson v. Virginia, 443

U.S. 307 (1979); Patterson v. New York, 432

U.S. 197 (1977); In re Winship, 397 U.S. 358

(1970). In this case, because of the im-

proper jury instruction, all of the elements

of the Pennsylvania statute cannot be said to

have been proven beyond a reasonable doubt,

because the jury was evaluating the case in

light of the wrong element of mental intent.

Thus, Felker's due process rights were vio-

lated by the trial judge and by the refusal

of the appellate court to rectify the situa-

-17-

tion.

In essence, the due process violation in

——=

this case is the same as the failure of a

state to give fair warning of the conduct

which is criminal under a statute. This

Court stated in United States vy. Harris, 347

U.S. 612, 617 (1954):

The constitutional requirement

of definiteness is violated by a

criminal statute that fails to give

a person of ordinary intelligence

fair notice that his contemplated

conduct is forbidden by the stat-

ute. The underlying principle is

that no man shall be held criminal-

ly responsible for conduct which he

could not reasonably understand to

be proscribed.

In addition, this Court has applied this rule

to situations in which the legislation itself

was Clear, but the courts applying it modi-

fied it so as to bring within the scope of

the statute conduct which should not have

been deemed criminal. In Bouie v. City of

Columbia, 378 U.S. 347, 352 (1964), for ex-

-18-

ample, the Court stated:

There can be no doubt that a

deprivation of the right of fair

warning can result not only from

vague statutory language but also

from an unforeseeable and retroac-

tive judicial expansion of narrow

and precise statutory language. As

the Court recognized in Pierce v.

United States, 314 U.S. 306, 311,

"Judicial enlargement of a criminal

act by interpretation is at war

with a fundamental concept of the

common law that crimes must be de-

fined with appropriate definite-

ness."

The principle involved in this case was

most directly addressed in a recent case from

the Fifth Circuit Court of Appeal. In Bap-

tist v. Blackburn, 786 F.2d 704 (5th Cir.

1986), the defendant was convicted of armed

robbery in a Louisiana state trial, although

there was a conflict in the evidence as to

whether the defendant had actually had a gun

during the robbery. The trial court in-

structed the jury that "if the victim thinks

the man has a gun and surrenders his money to

-19-

him, then it is armed robbery." Id. at 705.

However, the statute defining armed robbery

required that the robber commit theft by

force or intimidation "while armed with a

dangerous weapon." Id. Despite this clear

error in instruction, the Louisiana Appellate

Courts refused to reverse the defendant's

conviction.

The Fifth Circuit found that by in-

structing the jury that armed robbery can

result from the victim's mere subjective be-

lief in the presence of a weapon, the trial

judge reformulated the definition of the

crime. Because the instructions given at

trial did not adequately describe the ele-

ments of armed robbery as contained in the

Louisiana statute, the defendant's right to a

fair trial was denied. Id. at 706. In the

words of the court:

Once the legislature of such a

state as Louisiana defines a crime,

-20-

due process requires the state's

courts to follow its definition or,

at the least, to refrain from ex-

panding it to delete significant

elements of the definition ex post

facto.

Id.; see also Prantil v. California, 843 F.2d

314 (9th Cir. 1988) (recognizing rule that

erroneous instructions on state law crime can

constitute violation of federal due process

clause); Darnell v. Swinney, 823 F.2d 299

(9th Cir. 1987), cert. denied, 108 S. Ct.

1012 (1988) (same).

It should be noted that while the trial

court and appellate court below relied on

Commonwealth v. Kauffman, 323 Pa. Super. 363,

470 A.2d 634 (1983), for the holding that a

Simple negligence standard was appropriate in

a hit-and-run case, the Kauffman case in-

volved a different statute, 75 Pa.cC.S. §

3743, which under the legislative scheme is a

"summary offense". carrying a different maxi-

-21-

mum prison sentence and different culpability

standards. See 18 Pa.cC.S. § 305 (permitting

simple negligence standard in summary of-

fenses); 18 Pa.C.S. § 106(c) (Summary of-

fenses include those with a maximum prison

term of 90 days). By contrast, the maximum

sentence under 75 Pa.C.S. § 3742(a) is one

year. See 75 Pa.C.S. § 3742(b) (1); 18

Pa.C.S. § 1104 (defining length of sentence

in séedeneaner cases; one year in the case of

a misdemeanor of the third degree). Thus,

despite the conclusions of the trial court

and the appellate courts, the Kauffman case

could have no bearing on the culpability re-

quirement in this case.

In short, because of the erroneous jury

instruction given by the trial court, Felker

was denied his right to a fair trial and his

right to due process of law under the four-

teenth amendment to the United States Consti-

-22-

tution. The appellate court reviewing his

conviction merely compounded the error of the

trial court by failing to recognize that the

trial court had enlarged the elements of the

crime by permitting conviction on the basis

of negligence rather than on the knowing or

grossly reckless standard required by the

statute. Because the state courts arbitrar-

ily refused to follow the definition of the

crime as contained in the statute, due pro-

cess requires reversal of Felker's convic-

tion.

II. THE SEARCH AND SEIZURE OF

ITEMS FROM THE PETITION-

ER'S VEHICLE WAS VIOLA-

TIVE OF THE FOURTH AMEND-

MENT BECAUSE THE POLICE

FAILED TO OBTAIN A WAR-

RANT.

In this case, evidence critical to the

conviction of Felker was seized after a war-

-23-

rantless search of his vehicle, a pick-up

truck, while the truck was in police custody.

The truck had been impounded by the police

after Felker notified them that he had been

operating the truck and had struck a tele-

phone pole on the street where the victim had

been killed. Not until two days following

the accident, however, did an officer examine

the truck for evidence. At that time, pieces

of the truck's side mirror, grill, and paint

were removed and sent to a police laboratory

for analysis. Testimony at trial linked this

evidence with the death of the victim and

provided the evidence which led the jury to

believe that Felker's truck had hit the vic-

tim.

This Court has long recognized that

warrantless searches are per se unreasonable

unless supported by one of the specifically

established and well-delineated exceptions to

-24-

the warrant requirement. Katz v. United

States, 389 U.S. 347 (1969); Coolidge v. New

Hampshire, 403 U.S. 443 (1971). One of these

exceptions identified by this Court is the

automobile exception, which provides that

under certain circumstances police may dis-

pense with the need to obtain a search war-

rant to search a motor vehicle because of the

inherent mobility and reduced expectation of

privacy in motor vehicles. am S_V.

Maroney, 399 U.S. 42 (1970); California v.

Carney, 471 U.S. 386 (1985).

The court below ruled that the scraping

of paint from Felker's truck and the removal

of other physical evidence from the truck was

not a search because Felker had no expecta-

tion of privacy in the exterior of his auto-

mobile. This conclusion was not supported by

citations to any relevant case law. In fact,

however, the removal of evidence from Felk-

-25-

er's truck was a seizure for purposes of the

fourth amendment.

This Court has not definitively resolved

the question of whether there is a legitimate

expectation of privacy in the exterior of a

motor vehicle such that the examination of

evidence removed from the outside of the ve-

hicle is a search under the fourth amendment.

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

plurality of the Court upheld the validity of

the warrantless examination of tires and re-

moval of paint scrapings from a car, but the

actual basis of the holding is uncertain.

While the Court stated at one point that "the

invasion of privacy, if it can be said to

exist, is abstract and theoretical," id. at

592, it then went on to state that "[u]nder

circumstances such as these, where probable

cause exists, a warrantless examination of

the exterior of a car is not unreasonable

-26-

under the Fourth and Fourteenth Amendments."

Id. Thus, Cardwell can be interpreted to

mean either that there was no legitimate ex-

pectation of privacy in the exterior of a

vehicle or that there was probable cause to

search and thus the Court did not determine

the expectation of privacy issue.

As noted above, Cardwell was a plurality

opinion, and thus the decision in that case

does not have the precedential value of a

decision of the majority of the Court. More-

over, since Cardwell, this Court has refined

the rules regarding expectations of privacy

in such cases as Arizona v. Hicks, 480 U.S.

321 (1987). In Arizona v. Hicks, supra, the

Court recognized that while a cursory inspec-

tion of an item in plain view did not con-

stitute a search, moving the item to reveal

further information produced an invasion of

privacy which amounted to a search requiring

-27<

probable cause.

Similarly, in this case, while the fact

that the officer visually examined the exter-

ior of Felker's truck could be said not to

implicate any legitimate expectation of pri-

vacy, the removal of evidence for the express

purpose of scientific analysis elevated the

officer's actions into a search. Drawing the

line in this manner makes sense from a prac-

tical standpoint; in ordinary affairs, an

owner of a vehicle would not have a legiti-

mate expectation that other persons would not

look at his vehicle--even very closely--but

he certainly would have a legitimate expecta-

tion that nothing would be removed from his

car without his permission.

This conclusion has been shared by at

least one recent state court decision which

is in conflict with the lower court in this

case. In People v. Robinson, 209 Cal. App.

-28-

3a 1047, 257 Cal. Rptr. 772 (1989), the

court held under circumstances similar to

those in this case that the removal of paint

scrapings from a car was a search requiring

probable cause. Also analogizing to Arizona

v. Hicks, supra, the court concluded:

[W)e conclude that the officer's

conduct in scraping off a layer of

paint on appellant's car in order

to observe the color of the under-

lying coat constituted both a

"search" and a “seizure” within the

meaning of the Fourth Amendment.

By scraping off the blue paint, he

engaged in an intentional act which

had as its purpose the acquisition

of physical control over that paint

sample. (Brower v. County of Inyo,

supra, ._.._ ~%U.S. at pp. , 109

S.Ct. at pp. 1380-1381). Further,

that act when done for the purpose

of observing the underlying coat of

paint involved more than "merely

looking at what is already exposed

to view, without disturbing it.

- » «" (Arizona v. Hicks, supra,

480 U.S. at p. 328, 107 S.Ct. at p.

1154).

257 Cal. Rptr. at 777.

This case thus affords this Court the

-29-

opportunity to clarify the principles con-

cerning the expectation of privacy in the ex-

terior of motor vehicles and to resolve a

conflict in state cases over the circumstan-

ces in which the removal of evidence from the

exterior of a vehicle constitutes a search

and seizure.

Because of its erroneous ruling that the

removal of evidence from Felker's truck was

not a search or seizure, the court below did

not reach the question of whether the war-

rantless search was justified. Again, the

decisions of this Court are not dispositive

on this issue. In Cardwell v. Lewis, supra,

the plurality opinion indicated that if a

warrantless search of a car which was itself

evidence of a crime had been permitted at the

time the car was discovered, the delay in

searching would have had no bearing on

whether a warrant was necessary; however, the

-30-

majority of the Court did not reach that con-

clusion. As noted by Justice Stewart's dis-

senting opinion in Cardwell, joined by three

other justices, the automobile exception was

not available to uphold the warrantless seiz-

ure of the defendant's car in circumstances

where there was “absolutely no likelihood

that the respondent could have either moved

the car or meddled with it during the time

necessary to obtain a search warrant." 417

U.S. at 598.

Of course, in this case there was no

chance that the truck would have been moved

before a warrant to search it could have been

obtained, for the truck had been impounded by

the police. The situation is thus even more

appropriate than in Coolidge v. New Hamp-

shire, supra, for a finding that the automo-

bile exception to the warrant requirement

should not apply. In Coolidge, the plurality

-3l-

opinion held that since the officers knew

that they were going to seize an automobile

and could have obtained a warrant in advance,

the officers could not rely on the plain view

exception to seize the automobile.

The

recent automobile exception cases of

this Court have stretched the exception to

the limits of its original justification--the

mobility

majority

in which

dence of

sibility

prior to

of motor vehicles--but as of yet the

of the Court has not ruled in a case

the automobile itself was the evi-

the crime and there was no pos-

that the vehicle could be moved

the search without a warrant.

There are weighty reasons for treating a

motor vehicle differently if it itself is the

evidence

of the crime rather than simply the

repository of items which are sought in con-

nection with a crime. As pointed out by a

leading commentator on fourth amendment is-

-32-

sues, the seizure of a car as evidence is

more intrusive than the search of the car,

and for that reason deserves the added pro-

tection of the warrant process. 3 W. LaFave,

Search and Seizure: A Treatise on the Fourth

Amendment § 7.3(b) at 80 (2d ed. 1987); see

also State v. Foster, 110 Idaho 848, 718 P.2d

1286 (Ct. App. 1986) (once a car is impounded

and immobile, the automobile exception to the

warrant requirement is inapplicable, and the

validity of the seizure and subsequent search

should be judged under standards applicable

to containers, not automobiles).

This case thus presents the Court with

the opportunity to directly address the pre-

cise basis and limits of the automobile ex-

ception to the warrant requirement in those

situations in which the motor vehicle is it-

self the evidence of the crime.

-33-

minnie Cane ‘tem

CONCLUSION

ad staal

For all of the foregoing reasons, the

Petitioner, Robert Felker, requests this

Court to grant his Petition for Writ of Cer-

tiorari.

Respectfully submitted,

William H. Robinson Jr.

Hiscott and Robinson

900 Scott Street

Stroudsburg, PA 18360

(717) 421-4721

Counsel of Record