Petition for Writ of Certiorari — Allocati v. California

PETITION FOR WRIT OF CERTIORARI 1 lH!

COURT OF APPEAL OF THE STATE OF CALIFORNI

SECOND APPELLATE DISTRICT, DIVISION TW

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QUESTIONS PRESENTED

1. Whether a visitor to a residence

which is being searched by the police

pursuant to a search warrant may be

detained, absent some individualized

Suspicion connecting that person to the

illegal activity?

2. Whether a visitor to a

residence, which is being searched by

the police pursuant, to a search warrant,

may be subjected to a pat-down search,

absent some individualized suspicion that

the visitor is armed?

ats

ees

TOPICAL INDEX

PETITION

OPINIONS BELOW ’

JURISDICTION

CONSTITUTIONAL PROVISIONS.

STATEMENT OF THE FACTS —

REASONS FOR GRANTING THIS WRIT

I.

Il.

A VISITOR TO A RESIDENCE,

WHICH IS BEING SEARCHED BY

THE POLICE PURSUANT TO A

SEARCH WARRANT, MAY NOT BE

DETAINED ABSENT SOME IN-

DIVIDUALIZED SUSPICION

CONNECTING THAT PERSON TO

THE ILLEGAL ACTIVITY..

A VISITOR TO A RESIDENCE,

WHICH IS BEING SEARCHED BY

THE POLICE PURSUANT TO A

SEARCH WARRANT, MAY NOT BE

SUBJECTED TO A PAT-DOWN

SEARCH ABSENT SOME INDI-

VIDUALIZED SUSPICION THAT

THE VISITOR IS ARMED.

CONCLUSION.

-ii-

13

TABLE OF AUTHORITIES

CASES:

Lippert v. State

664 S.W.2d712 (Tex.1984)

Michigan v. Summers

452 U.S. 692 (1981)

People v. Myles

50 Cal.App.3d 423 (1975)

People v. Schwind

211 Cal.App.3d 615 (1989)

People v. Superior Court

7 Cal. 3d 186 (1972)

State v. Broadnax

654 P.2d 96 (Wash. 1982)

State v. Carrasco

711 P.2d 1231 (Ariz. 1985)

Terry v. Ohio

392 U.S. 1 (1968)

United States v. Clay

640 F.2d 157 (8th Cir. 1981)

United States v. Cortez

449 U.S. 411 (1981)

Ybarra v. Illinois

444 U.S. 85 (1979)

CONSTITUTION:

United States Constitution,

Fourth Amendment :

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aa

12

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1989

ALFONSO ALLOCATI,

Petitioner,

vs.

STATE OF CALIFORNIA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT, DIVISION TWO

The Petitioner, ALFONSO ALLOCATI,

prays that a writ of certiorari issue to

review the judgment of the Court of Appeal

of the State of California, Second Appellate

District, Division Two, entered in the

above-entitled case on July 7, 1989. A

petition for review was denied by the

Supreme Court of California on October 26,

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1989.

OPINIONS BELOW

The Opinion of the Court of Appeal

of the State of California, Second

Appellate District, Division Two, is

reported and is attached as Appendix "A"

hereto. The order denying the petition

for review in the California Supreme

Court is attached as Appendix "B" hereto.

JURISDICTION

The jurisdiction of this Court is

invoked under 28 U.S.C., section 1254.

CONSTITUTIONAL PROVISION

The Fourth Amendment to the United

States Constitution provides as follows:

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 affirma-

tion, and particularly describing

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the place to be searched,

and the persons or things to

be seized.

STATEMENT OF THE FACTS

The Petitioner, Alfonso Allocati,

was convicted of the crime of possession for

sale of cocaine in violation of California

Health and Safety Code, section 1135l. He

appealed the denial of his motion to sup-

press evidence brought on the grounds that

the cocaine was seized by the police in

violation of the Fourth Amendment. The

California Court of Appeal affirmed. The

California Supreme Court denied a petition

for review.

The facts concerning the seizure

of the cocaine are as follows. On May 22,

1986, Petitioner Allocati was carrying a

brown paper bag and a black purse as he

approached a residence at which Glendale

police officers were executing a search

-3-

warrant for narcotics. Officer Kendall

Chou secured the front of the residence

and asked Petitioner his destination as

Petitioner approached. When he stated he

was visiting the residence, Officer Chou

asked him to place the objects he was

carrying to the ground. The officer con-

ducted a pat-down search to insure safety

and asked permission to look in the bag.

Petitioner picked up the purse and started

to open it. The officer feared a weapon,

and grabbed the purse, looked in it and

observed a large amount of currency.

Officer Chou then summoned Officer Joe

Jiminez, an experienced narcotics officer,

who looked into the open paper bag and

saw various items related to drug sales,

including a plastic bag containing 110

grams of cocaine. Petitioner was then

arrested and the cocaine was seized as

evidence.

REASONS FOR GRANTING THIS WRIT

I

A VISITOR TO A RESIDENCE, WHICH IS BEING

SEARCHED BY THE POLICE PURSUANT TO A

SEARCH WARRANT, MAY NOT BE DETAINED ABSENT

SOME INDIVIDUALIZED SUSPICION CONNECTING

THAT PERSON TO THE ILLEGAL ACTIVITY

In the Petitioner's case, the state

court held that a mere visitor to a resi-

dence, that is being searched by the police

pursuant to a search warrant, may be (1)

detained by the police and (2) subjected

to a pat-down search. In so holding, the

Court stated:

Appellant's contention that

the cocaine was in plain view due

to unlawful police conduct is

without merit. Officer Chou

acted properly in having ap-

pellant place the purse and

bag on the ground while he

conducted the pat-down search

for officer safety. It was not

unreasonable for him to suspect

a visitor to a location of

illicit drug activity might

be armed. (People v. Myles

(1975) 50 Cal.App.3d 423, 430;

cf. People v. Superior Court

T1973) 7 aL 3d 186, 204) :

(Slip Opinion pp.2-3).

On the first issue, the great weight

of authority supports the conclusion that

a mere visitor to a residence while it is

being searched may not be legally detained

on the basis of his mere presence alone.

See, United States v. Clay, 640 F.2d 157

(8th Cir. 1981); State v. Broadnax, 654

P.2d 96 (Wash. 1982); Lippert v. State,

664 S.W. 2d 712 (Tex. 1984); State v.

Carrasco, 711 P.2d 123] (Ariz. 1985);

People v. Schwind, 211 Cal.App.3d 615

(1989).

Further support for Petitioner's

argument exists in this Court's decision

in Michigan v. Summers, 452 U.S. 692

(1981). In Summers, this Court held that

while the police are executing a search

warrant at a house for narcotics, they

may lawfully detain the occupants of the

house while the search is conducted. In

Summers, the defendant was detained after

descending the front steps of a residence

that was about to be searched pursuant

to a lawfully issued search warrant.

After discovering narcotics in the house,

the police returned to where the defendant

was detained and arrested him. They found

further narcotics on his person. The Court

held that the detention was lawful and

that the evidence found on his person was

admissible. In Michigan v. Summers, supra

the Court stated "If the evidence that a

citizen's residence is harboring contra-

band is sufficient to persuade a judicial

officer that an invasion of the citizen's

privacy is justified, it is constitutionally

reasonable to require that citizen to

remain while officers of the law execute

a valid warrant to search his home. Thus,

for Fourth Amendment purposes, we hold

that a warrant to search for contraband

found on probable cause implicitly carried

-J-

with it the limited authority to detain

the occupants of the premises while a

proper search is conducted." (69 L.Ed.2d

at 351).

Summers teaches that an occupant's

control over and connection to a residence

subject to a search warrant gives rise to

a reasonable suspicion the occupant is

involved in the criminal activity occurring

in his or her home. The same cannot be

said of a visitor absent some individual-

ized suspicion connecting that person to

the suspected illegal activity. In the

instant case, there were no facts known

to the police officers present that sup-

port a reasonable suspicion connecting

Petitioner to the illegal activity occurr-

ing in the searched premises. Thus, the

facts known to the police were not suf-

ficient to warrant a detention of the

Petitioner.

II

A VISITOR TO A RESIDENCE, WHICH IS BEING

SEARCHED BY THE POLICE PURSUANT TO A SEARCH

WARRANT, MAY NOT BE SUBJECTED TO A PAT-DOWN

SEARCH ABSENT SOME INDIVIDUALIZED SUSPICION

THAT THE VISITOR IS ARMED

The Court of Appeal in the instant

case held that it was not unreasonable to

conduct a pat-down search of a mere visitor

to a residence being searched by police

officers with a warrant. Such a conclusion,

however, is in direct conflict with the

United States Supreme Court decision in

Ybarra v. Illinois, 444 U.S. 85 (1979).

In Ybarra v. Illinois, supra, the

police obtained a search warrant for a

local bar on the basis of an informant's

statement that the bartender was traffick-

ing in drugs. When the police entered the

bar with the search warrant, the defendant,

who was a mere customer at the bar, was

detained by the police while the police

conducted their search of the bar. In

addition to detaining the defendant, the

police also conducted a pat-down search

of the defendant. The police officer

felt a cigarette pack with objects in it

in the defendant's pocket. After the pat-

down search, the officer removed the pack

from the defendant's pocket and discovered

heroin inside the cigarette pack.

The United States Supreme Court

held that the search af the defendant was

unlawful and ultimately suppressed the

heroin taken from the defendant's pocket.

The prosecution argued that the defendant

was properly subjected to a pat-down search

and thereafter they had probable cause to

seize the cigarette pack. ‘ii.e United

States Supreme Court held that there was

no justification for the pat-down search

because the police had no reasonable basis

for concluding that the defendant was armed

and dangerous. In so holding, the Court

-10-

stated:

The initial frisk of Ybarra

was simply not supported by a

reasonable belief that he was

armed and presently dangerous,

a belief which this Court has

invariably held must form the

predicate to a pat-down of a

person for weapons.

---{T]he state was unable to

articulate any specific fact

that would have justified a

police officer at the scene

even suspecting that Ybarra

was armed and dangerous.

(444 U.S. at 92-94)

In Terry v. Ohio, 392 U.S. 1, 27

(1968), the Court held that a police

officer could undertake a pat-down search

only “where [the officer] has reason to

believe that he is dealing with an armed

and dangerous individual.... The issue

is whether a reasonably prudent man in

the circumstances would be warranted in

the belief that his safety or that of

others is in danger." The Court also

stated that "In determining whether an

officer acted reasonably in such

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ee ge Te

circumstances, due weight must be given,

not to his inchoate and unparticularized

suspicion or ‘'hunch', but to the specific

reasonable inference which he is entitled

to draw from the facts." Id.

To uphold the pat-down search of

the Petitioner Allocati in this case is

to sanction a Terry weapons search based

on nothing more than generalized suspic-

ions concerning a person's involvement in

narcotics activities. Blanket generali-

zations about the nature of certain crimes,

however, fail to provide that specificity

of information which is the hallmark of

Fourth Amendment jurisprudence. United

States v. Cortez, 449 U.S. 411, 418 (1981);

Terry, 392 U.S. at 21, n.18.

CONCLUSION

Based upon the foregoing, the

Petitioner urges that this Petition be

granted.

Respectfully submitted,

i

JOSEPH. T. VODNOY }

.

- “ \ i

‘ . vs > | ' j

JOSEPH F. WALSH

Attorneys for Petitioner

ALFONSO ALLOCATI

APPENDIX

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PROPLE, No. B032570

Plaintiff and Respondent,) (Super.Ct.No.

A592547)

ALFONSO ELVAO ALLOCATI,

)

)

)

)

v. )

)

)

)

Defendant and Appellant. )

)

[Filed July 7,1989]

Alfonso Elvao Allocati appeals from

the judgment entered following his plea of

guilty to possession of cocaine for sale

after denial of a motion to suppress

evidence. (Health & Saf. Code, §1538.5).

He contends: "The court erred in denying

the appellant's motion to Suppress the

cocaine found in the paper bag because the

evidence came into plain view as a result

of the unlawful police conduct of ordering

the appellant to place the bag on the

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——

wah eed ee

ground."

Viewing the evidence in accordance

with the customary standard of appellate

review (People v. Leyba (1981) 29 Cal.3d

591, 596-597), it was established that on

May 22, 1986, appellant was carrying a

brown paper bag and a black purse as he

approached a residence at which Glendale

police officers were executing a search

warrant for narcotics. Officer Kendall

Chou secured the front of the residence

and asked appellant his destination as

appellant approached. When he stated he

was visiting the residence, Officer Chou

asked him to place the objects he was

carrying on the ground. The officer

conducted a pat-down search to insure

safety and asked permission to look in

the bag. Appellant picked up the purse

and started to open it. The officer

feared a weapon, and grabbed the purse,

~2A-

looked in it and observed a large amount

of currency. Officer Chou then summoned

Officer Joe Jiminez, an experienced nar-

cotics officer, who looked into the open

paper bag and saw various items related

to drug sales, including a plastic bag

containing 110 grams of cocaine.

Appellant's contention that the

cocaine was in plain view due to unlawful

police conduct is without merit. Officer

Chou acted properly in having appellant

place the purse and bag on the ground

while he conducted the pat-down search

for officer safety. It was not unreason-

able for him to suspect a visitor to a

location of illicit drug activity might

be armed. (People v. Myles (1975) 50 Cal.

App.3d 423, 430; cf. People v. Superior

Court (1972) 7 Cal. 3d 186, 204.)

The judgment is affirmed.

NOT TO BE PUBLISHED.

-3A-

ROTH

We concur:

’ we

GATES

, J.

FUKUTO

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, I eee

_ ~ T

APPENDIX "B”"

ORDER DENYING REVIEW

AFTER JUDGMENT BY THE COURT OF APPEAL

Second Appellate District, Division Two

No. B0Q32570, S011572

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA

IN BANK

THE PEOPLE, Respondent,

Vv.

ALFONSO ELVAO ALLOCATI, Appellant.

Appellant's petition for review DENIED.

The Reporter of Decisions is directed not to

publish in the Official Appellate Reports the

opinion in the above-entitled appeal filed

July 7, 1989, which appears at 212 Cal.App.

3d 392. (Cal.Const., Art.VI, Section 14;

Rule 976, Cal. Rules of Court).

LUCAS

Chief Justice