Petition for Writ of Certiorari — Jackson v. United States

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ae «a CER OT JUN 10 1966

"JOHN F. DAVIS, CLERK.

IN, THE cos

. Supreme Court af the ni Dstt

, Octosen Tenm4;19 "e

: WILLIE JACKSON, Petitioner

Vv.

" UNITED Srares oF AMERICA

_ PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE *

Howarp Moore, J R. |

_ . . 85914 Hunter Street, N.W.

oF Atlanta, Georgia 30314

JOHN H. RUFFIN, a

930 Gwinnett S

Augista, a

one |’ Attorneys for Petitioner —

oe SEP ae See a Te aes

; Press or Brron S. Apams Pauvrrine, Inc.;.Wasnincron, D.C. .

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ry 3 : ¢

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Brinegar v. United

Carroll” v. United States, 267 U.S. 132: (1925). . ry Sap i

| Page

\ Optaliiia Below <0 8 OETA OS ech

Jesibiliee. i650 ies uted eeear 2

Quéstions Presented ...... eee east aes 2

Constitutional and Statutory Provisions ‘Involved . _ 8

Bhatemmet aivcin sis dines oeree cae eseepedecsccQesccess &

Reasons for oo the MOA cs os Shae Wescas oaaa 10

Conclusion Se Sktiala nk eee ee siasaaee. ae

Chistian of the Court of Appeals. Mgae ta wereeel Vass ete.

enn MU eee ‘veceate iy

Ordér Dayne Motion for Rehearing seneeeveceees 46

TABLE OF CITATIONS oe

Cams: >

_ Adams v. United States: 396 U.S. F. 24 742 (D.C. es

Sg RLY ee See oe Oy”

Armada | v. United States, 319 F. 2d 793 (5th Ci.

ee aN iatag 5 - Kah 15 fn. 4

1963) "

Beck v. United States, 379 U.S. 89° (1964) ......:..; 12

States, 338 U.S. 160: (1949) . ae

ae ee States, 358 US. ‘367 (1959) Pees (Sen

' _ Elkins v. United States, 364. U.S. 206 (1906) ere: Sg

_ Monroe v. Pape, 365 US. : i. § Bees 12 fn. 1

Olmstead v. United States, 277 U.S. 438 ae) paeaes 13

Pickett v: State, 99 Ga. 12 (1896) ...........0... arate |

sg v. United States, at U. * 364 (186) ited

e*.

AN ates ter Wrens

IY a Ak wg Rt ia pada A I a Rea ily brea

| ce ae “ ' ee Index Continued . |

| ‘Rent v. United ‘States, 209 F. 2d 893 (5th. on -

DUNE anks chen odewckeeeeUeds éxicbessccssess 14 fn. 4

. as Rhodes v. United States 294 F. 2d 348 (5th Cir. 1955) 10.

A ae - Scher v. United States, 305 U.S. | ens. 10

tia! 3 Sirimareo v, United States, 315 F. 2d 699 (10th Cir. =...

} WOGB) Ses cc ucy etc cescsecscdccveccssccces 14 fn. 4.

_/.. > rupiano v. United States, 334 U.S. 699 (1948)-....14fn.4 ©

f. United States v. Di Re, 332 U.S. 581 (1948) . 11, 14 fn. 4 -

- United States v. Rabinowitz; 339 U.S. 56 (1950) .. ..14fn. 4

. United States v. tera wids 279 F. 2d 924 (7th “Cir.

RRR, See ie! Ry eee 14 fn. 4

‘ Wong Sun v. Tnitea States, 371 US. AT. ee: ee ae ——e

ae \ =

7 ConstrruTiowaL Provisions: ye Re —

as Fourth Amengiment of the ¢ Constitution of f the United

States gees PRO ORE VG oy NEN? St RE a A 23.

ae _Fourteenth . “piecudenrat of: the Constitution of the +

ook fe ee gene, United States se peeesocerecnesteeetan Dt vine aden 2,3

Se | Sidicoens: | iy PS :

Lie ea States Code, Sections $205(a) (2) and 5604 *

ee B) cgecsincccvesesescqecé peso toebies wrdeeeeeces OS

oe ae SW 28 United, States Code, Section, 1254(1) ” a ss ; ‘, : . oN 3 |

! Saas oe, 27 Georgia Codé Annotated, Section 207 .......:.....3,5

. 68 Georgia Code Annotated, Section 1707...... 4000-8, 10 ae

‘ 68 Georgia Code Annotated, Section 1701(a) . ty theos ‘8 Be

2A Georgia Code Annotated, Section 422 woceete se A IE

_ 924 Georgia Code Annotated, ‘Section 423 ..2....... 4 |

\" ab 92A Georgia Code Annotated, Sectioin 427.1 ........ en

i < . Wart Ke [ : R

ey ¢ |

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IN THE ” es Z

| Supreme a nf the Ruiten States

; Ooctosen — 1965

¢ > ; Aa. ied

. : . .

78 .. Wintre Jackson, Petitioner —

| _ Untrep States‘or AMERICA

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

.. Petitioner prays that a writ of cortiovarl issue te

review the-judgment of the United. States Court of. .

Appeals for the Fifth Circuit entered in the above- ~

entitled case on’ November 16, 1965, rehearing of

whitey was denied on May 11, 1966.

Ser : ae OPINIONS BELOW As feed

The opinion of the United States Court of Mppeals

for the Fifth Circuit is reported at 352 F. 2d 490. It

is Lo serach in the Appendix, pages la ns 2a.

4

We.

’

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"hea

fy . “ 2-

~ The ‘opinion of the United States District Court —

for the\ Middle ‘District of Georgia, Macon ‘Division, —

= 18 not reported, but appears in the sontee, PP. =. :

%

: _ JURISDICTION |

The judgrnent of the United States Court of oes |

- for the Fifth Circuit was rendered on November 16, |

- 1965 (App. 3a). ‘Rehearing was denied -on May 11,

1966 (App, 4a). Issuance of the mandate pursuant

to the judgment was stayed for a period of thirty (30)

_ days on May 23, 1966, ‘dating from May. 11, 1966. ‘The — -

* jurisdiction of this Court is invoked pursuant to 28

- United States Code, Section 1254(1).

QUESTIONS PRESENTED

1, Where petitioner is arrested by state officers in

violation of state law for allegedly operating a motor

vehicle on. a a ay license upon their bare recol- .

_ leetion that petitioner’s license had been suspended, did _

the officers have probable cause to arrest so as to

_ justify a search of )pétitiofiér’s vehicle for evidence of

a violation of féderal law under oe Fourth and Four-

teenth Amendments? |

2, Assuming probable cause for the arrest, waioe

_: , the Fourth and Fourteenth Amendments, may evidence

‘obtained in violation of a state statute be used.in a

_. federal prosecution rs a

3. May. state officers consistent with the Fourth ‘and

Fourteenth Amendments search a motor vehicle con-.

.. ° temporaneously with an arrest for a, violation cf state.

traffic laws where the exicencies shi ia a ‘warrant-

| af less search are absent} -

Sey

/

ak

-INVOLVED > >

This case ga lawen the Fourth ied Fourteenth

Amendments to the Constitution of ifle United States.

utes:

se Giorata Ode ANNOTATED, Sacto 97-207: wi oAcg

27-207 (917 P. C.). Arrest. without warrant. An’ :

arrest for a crime may be made by am officer, either

under a warrant, or without a warrant if the of-.

_ fense is committed in‘his presence, or the offender

is endeavoring to escape, or for other.cause there

is likely to be a failure of justice for want: of an

officer to issue a warrant. —

Grorara’ Cops ANNOTATED, ‘Gouna 68-1707 (1958) :

68-1707. Marking of official vehi¢les—Any ‘motor

ae&y

vehi¢le which is used on official business by-’ any

person authorized ‘to make arrests | for traffic vio-

ee - lations in this State, or any muni¢ipality or county -

-,~ ‘thereof, shall be distinctly marked: on each side

and the back with the name of the. agency respon-

Gronars Cope ANNOTATED, SECTION 68-1701 (a) (1953) :

68-1701. Scope and effect of regulations as to equip-

?

—

ment.—(a) It is a misdemeanor for any person to

-drive or move or for-the owner to cause or know- |

ay sarbre to be driven or moved on any street .

way any vehicle or combination of vehicles

whi is in such unsafe condition as to endanger

any person, or which does not contain those :

_or is not at all times equipped with such lamps and

‘other equipment in proper condition and adjust-

ment as required in sections 68-1701 through 68-

1722, or which jis equipped i in any manner’in vio-

ea

This case also involves the following —~ Stat a

_ CONSTITUTIONAL AND STATUTORY PROVISIONS aoe

| sible therefor, in letters not -less than —A inches | ' ies

in height. (Acts 1953, Nov. Sess., ‘pp. 556, 605.) -

¢

®

_ ee

-. lation of said olives, or for any person to do any

. aet. forbidden or ug “4 perform any act.required -

- under said sections. . . (Acts 1988, Nov. Sens. "

‘Pp. 556, 602). |

‘ @EORGIA CopE ANNOTATED, SECTION 92.A-429 (1951) |

-92A-422: Refusal, suspension, revocation, or cancel- in

se

lation of license ; hearing.—U pon the dior sus-

pension, revocation, or-cancellation of an en

er’s, special learner’s, operator’s or chauffeur’s ij-

eense for cause, a hearing.shall be grantéd onde-

mand before any agent of the Department of Pub-

lic Safety authorized“by the Director to hear the

same, which hearing ‘shall be had in the county of

such person’s residence, and need not be a matter

of record.

«( jaspension foenne that the licensee’s privi- |

% lege t o drive a motor vehicle is temporarily ‘with-

_ dra . (Acts 1937, pp. 322, 349;'1939, pp. 135,

148; 1943, PP. 196, 201; 1951, pp. 598, 604.)

‘Gmondra Code ANNorarEn, SEcTION 2-493 (1951) :

92.A-423.° Same; appeared to court.—The decision

— of such agent or officer of the Department of Pub-

| tte Safety shall be final unless the person whose

- license has been suspended, reyoked or cancelled

. shall desit® an appeal, in which case he shall have

- the right to enter an appeal to the court of the

_ eounty of his residence, other than a justice’s.

court, having jurisdiction of misdemeanor cases,

after "notice to the Director, in the same manner

as appeals are entered from the court of ordinary,

except that he shall not be required to pay the costs

in advance. (Acts. 1937, Pi $8 322, 589; aii pp.

196, 201; 1951, pp. 598, 605.

Giada QovE Annorarep, Srcri0Nn 904.4917 1. Rein-

statement of suspended license.—Upon the recom-

-mendation of - judge of .the- court that ‘sus-

‘ : wast a oe : <i —.°

pended the operator’s or chauffeur’s license of any

on, the Director of the Department of Publie—

ety is authorized to reinstate such. license.

(Acts 1941, pp. 277, 278; 1943, PP. 196, 201; 1951,

pp. 598, |

: ‘STATEMENT OF THE Case’

War J ACKSON, petitioner, was indicted on Febrv- .

ary 3, 1964 by the Grand Jury of the United States .

District Court for’ the Middle District of Georgia;

- Macon Division, for alleged; violations. of 26 United

States Code, Sections 5205(a) (2), 5604(a) (R. 1,2).

— indictment was in two counts, transportation and _

- possession of non-taxpaid: or ‘‘moonshine”’ whiskey.

For several months prior to the events of Sunday,

_ November 3, 1963, plainclothes detectives Jesse Ro-

land .and Lonnie R: Brown of the Police Department |

of the City of Macon, Georgia, who patrolled in an

unmarked 1963 Plymouth, had adopted and pursued a -

: policy’ of stopping, and searching, ‘without a search: °

warraht, any vehicle owned or connected with the pe-

- titioner (R. 22, 87-93, 103, 110-112): They pursued this

policy because of petitioner’ s alleged ‘‘reputation’’.

as a dealer in ‘‘moonshine” whiskey (RB. 19). Peti-

tioner, however, had no previous convictions for deal-

, ing in “‘moonshine’’ whiskey (R 21). |

Roland and Brown were assigned to the vice squad. — |

Seventy-five percent or more of their time was spent

making investigations and arrests for moonshine liquor

violations (R. 18). They had no connection with the _

‘Federal Government and their powers of arrest as

-. Officers were ‘derived from the laws of the State of.

Georgia. They could arrest without a warrant under

Section 207, 27 Georgia Code. Annotated, for an of-

>

eel

.

. fense committed in their presence and in two other

. situations not relied upon to sustain the yalidity of

‘the arrest and search on Sunday, N ovember, 3," 1963,

About seven “a :00) o’clock in the morning, the

officers left ithe police station at City Hall and pro-

. ceeded on patrol in their unmarked Plymouth (R. 22). ~

‘Approaching the intersection of Eim and Telfair. -

Streets, they saw the petitioner alone in a red and

"white two-door Ford traveling in the opposite direction

along -Telfair Street (R. 28, 30). As petitioner’s car _

‘came down an/ incline about a block away, Officer Ro-

.land said, ““That looks like Stokey (petitioner’s nick-

- name) driving that car there’ (R. 30). Officer Brown -

replied, ‘‘Sure does”? (R. 30). There, they agreed to

. stop him (R. 31), even though he was not violating

any local ordinances (R. 30).

Petitioner turned right off of Telfair Street on to

Edgewood Avenue, an unpaved street (R. 31). ‘The

tires of his car spun, and a vapor of dust arose (R.

31).. The detectives turned and pursued the petitioner

with the intention ‘‘to catch him for violating the state

motor -vehicle law’’ (R. 32). The- officers did not

know at that time whether petitioner’s license had been

revoked or onipemmee (R. 35).

‘After following ‘Petitioner for several blocks, the .

_ Offic&rs turned on their siren (R. 36) and continued —

‘the chase at high speed (R,.41). Detective Roland

_ testified that as the petitioner’s car negotiated a curve |

about two miles from the point at which the chase -

began, he could ‘“‘tell the dodr opened on the right

hand side,” and “‘this.case went rolling down the street --

ee ee ee eS oe She

street”’ (R. 44).

fe

7

* 7. .

rm

Roland and Brown did not stop to determine the

- nature of the liquid substance (R. 45). They turned —

_ sharply in another direction (R. 45, 46) to take ad-

vantage of what the trial judge ribed as ‘‘the

shorter distance of the hypothen as against the

two other sidés of a triangle’ (R. 123). Despite the

fact that Brown was puffing away on his cigar, Roland

claimed, ‘‘there was a smell’’ (R. 45, 46).

- The chase continued for several blocks with the offi-

cers “right on [petitioner’s] tail’ (R. 47). Petition-

er’s car-ran through a driveway into a.-field and

stopped (R. 47,- 48). The- unmarked - Plymouth.

bumped into the rear of petitioner’s car (R. 48). ‘Pe-

titioner got out and moved about ten or fifteen feet

_° from his car (R. 48, 123). Officer Roland got out and

bellowed, “Hold it Stokey’’-(R.'48, 124). Petitioner

stopped. The officers placed petitioner in their un- -

- marked Plymouth and then searched his car &. 48, .

65, 66, 114, 1b) ne

Detective Roland, on cross examination, Lacmtuany

the gearch with particularity:

**Q. And which one of yon opened the back of

- the car, Mr. Brown or you?

a No, when-he got out of the car to abandon it.

they left a door open.and I was’ the first one up

there and you could see a case setting on the back

floorboard. Wasn’t ih the back of the car. ae

‘ _-was in the back floorboard. |

Q. Was it an open case?

A. The case was closed.. I don’t know hether

‘it was Atlas or Mason, but one of the two. _I: ree-

_ ognized it. as being a case of half gallon fruit

jars.

.Q. Half gallon fruit jars?

A, 1 recognized. it being a “Cane, yes sir.

2 At case in 1 which half gallon fruit Jars come?

A. Yes sir.

Q. And what was in it then, you didn’t at that

~¢- moment, have any idea, did you?

A. I knew in my own raind what was i in it, yes

sir,

: Q. You knew in your. own mind what wag in

there? , eA ’

A, Yes sir,’

Q. And then you went on in ie and opened

it up and verified what was in it, didn’t you?

A. Well, _ ‘were eae him for no driyer’s

license” (R. 48 , 49).

No effort was made to procure. a warrant iy car

of "radio during the chase (R. 52). Any of the clerks of .—

court could have issued a warrant, ae it was Sun-

day (R. 53).

Prior’ to petitioner’ S ‘iboats Detectives Roland. ana

| Brow had booked ‘‘some few”? ‘traffic cases (R. 50).

Yet, they ‘“‘were stopping [petitioner] for the driv-

‘'er’s license,” and ‘‘as a result of this arrest, charged ie

him with violating _ Aleohol Control [Act]” (R.

55, 107).

A complaint. for We of: thé Internal Revenue

Code. was sworn ou against petitioner on Monday,

‘November 4, 1963 by William W. Williams of the Al- —

“eohol and Tobases Tax Division of the Internal Rev-

enue. Service (R. 3, 4). The sworn complaint was

based, in part, upon the factual allegation that certain

named: state officers had arrested Willie “‘Stokey”’

Jackson for driving at a time i ‘‘knew: that [his]:

“driver’s license had been revoked...” ce:2 4,5).

At the time of the arrest, the detectives did not.ask —

Jackson whether he had a license or not: (R. 107, 113).

2

9

At the trial, Roland testified from written notes that |

he was prese nt,in Recorder’s Court on June 5, 1963

(R. 33, 103)," when petitioner’s license was allegedly

suspended for one year.. The Government introduced

_-a certified copy of the conviction. and sentence of, sus-

pension which showed that the trial before the Re-

‘eorder was on May 31, 1963 (R. 92; Exh. G-1), The

trial. judge—overruled—petitioner’s ‘motion. to strike -

the testimony relating to whether or not his license

. had been suspended on the grounds that the. Govern- :

ment had not proved that petitioner’s license was still _

| suspended | on the date of the arrest. (R. 119)..

_ Petitioner has never been formally charged with

violating the state whiskey laws, and the ordinances of

the City of Macon respecting. ‘‘moonshine?’ whiskey

had been declared unconstitutional. by the county su-

iperior court prior to petitioner’s arrest (R. 115). The

‘Government failed to prove whether formal charges

-were ever brought for the alleged traffic offense (R.

117). . A state arrest warrant was not taken out for —

either the traffic or whiskey. charge. Petitioner was

held more than forty-eight (48) hours before’ he was

booked. - (R. 108, 119).

Prior to trial, petitioner moved to suppress the evi-

dence on: the grounds. that it was obtained.as a result —

of an illegal search and seizure in violation of his'con-

-, stitutional rights (R. 11-14), The District Judge, after

a hearing on April 16, 1964, orally overruled the veriaer

to suppress from the bench (R. 15, 93). |

Thereafter, petitioner ° waived jury trial. and

agreed for ‘the ease to he tried before the Court with-

out -a jury (R. 1) ' |

eee

- Petitioner entered a plea of not guilty and the case

came on for trial hefore District J _ W. A. Bootle :

on July 24, 1964.

The District Court held that the siscacbds and seizure

was valid because it was (1) incident to a lawful ar-

rest, and (2) because of the ambulatory nature of the

motor vehicle (R. 126), citing Rhodes v. United States, ~

224 F. 2d 348 (5th Cir. 1955).and Carroll v. U.S. 267

United States 132 (1925). The District Court refused |

to construe Section 1707, 68, Ga. Code Ann., pro-

- hibiting arrests for traffic offenses i in unmarked patrol

cars, to require exclusion of the evidence seized from

‘petitioner’ s car (R. 127). : tS

The Court of Appeals held that the search was in- _

cident to a valid arrest for a misdemeanor committed ~*

_ in the presence of the seizing officers and that the spe- ”

';. eifie finding ‘of the District Court was, on the ney |

clearly not erroneous (App. 2a). —

Petitioner, on No ovember 24, 1965, filed a ads for

rehearing raising the. objection that the arrest for the

traffic misdemeanor was on. bare suspicion and illegal

in- any event because policemen in unmarked patrol

cars are prohibited under penalty of criminal sanction

_ from making arrests for traffic violations. The Court.

of Appeals held the motion for rehearing for five and

a half months ‘and, on May 11, 1966, denied it without

comment (App. “I

| REASONS FOR GRANTING THE WRIT

1. The decision below conflicts with the decisions of”

this Court requiring a warrantless search of a motor

vehicle to be preceded by an arrest based upon prob- |

‘ able cause. Carroll v. United States, supra; Scher v,

2

-

te uw

United States, 305 U.S. 251 (1938) ; Retsinghis “United .

States, 338 U.S. 160° (1949) ; : Preston v. United States,

376 U.S. 364 (1964). — .

The validity of the arrest must be tested by state

~~ law. . United States v. Di Re, 332 U.S. 581 (1948).

i Under state law, the arresting officer must know that a

erime is actually being committed in his presence.. He

has’ no-authority upon_bare suspicion-or-upon mere

at information derived from others to-arrest a citizen

and search, even for concealed weapons. Pickett. ‘vy °

State, , 9 Ga.12; 15 (1896). |

«Probable cause exists where ‘the facts and ‘cireum-

stances within their [the officers’] knowledge and of |

which they had reasonably trustworthy information

[are] sufficient in themselves to warrant a man of rea-

Rad sonable caution in the ‘belief that an‘ offense has ‘been

or. is being committed.” Brinegar v. United States,

‘supra, at 175, 176; Carroll v. United States, supra,,. at

162. Information: that the license was’ suspended was

insufficient (in itself) to make out probable cause for

the arrest. Corroboration was required; evidence that.

the license had not been reinstated. By statute, a sus- |

pended license may be reinstated (1) by an officer of the

Department of Public Safety or (2) upon the recom-

mendation of the judge imposing the sentence of sus-

pension, supra, pp. 4,5. One of the officers testified a

that he himself had no knowledge of reinstatement pro-. 7

- ceedings (R. 122). However, since reinstatement pro-—

céedings are not matters of record by statute, the

officer could have no knowledge of probable cause

without inquiring as to whether petitioner possessed

his license. Such inquiry was made neither prior to

. the arrest nor at any time subsequent, supra, p. 9.

%

. tioner’s vehicle was

Even if the officers had theless, under Draper v. United States,

’ 12° “: Me

Facts ascertained after the arrest and search are

not relevant. ‘‘When the constitutional validity of an

- arrest is challenged, it is the function of the court to

determine whether ‘the facts available: to the officers

_at the moment of the arrest would ‘warrant a man of |

reasonable caution in the belief’ that an offense has:

been committed.’’ Beck v. State of Ohio, 379 U.S.

89, 96 (1964). .

2. The: decision: of the court saeiacd is in direct con-

flict with the decision of this Court in. Elkins v. United ©

States, 364 U.S. 206 (1960). Elkins overturned the,

| so-called ‘“‘silver platter’’ doctrine, and held that ‘‘evi- _

' dence obtained by state officers during a search which,

if conducted by federal officers, would have violated

the defendant’s immunity from unreasonable searches -

’ and seizures undér the Fourth Amendment is inad-

missible:. . :..”” Elkins v: United States, supra, at 223.

' - The, arresting officers. acted flagramte delicto. State.

law specifically prohibits them from arresting for -

traffic violations in an: unmarked: car, supra, p.. 3.

_ They disclaim probable cause to arrest for violation of

the state alcohol control law’ an rely entirely upon the. -

arrest for an alleged traffic violation. ‘Decency, se-

curity and liberty alike demand that Government

ane officials shall be subjected to the same rules of conduct

id, Regardless of whether a warrantless search following an arrest

violation of a state statuté constitutes wrongful deprivation of

a N cclibedianalie protected right, this Court, as in Elkins, may

nevertheless exercise its supervisory jurisdiction to review the |

decision below. But consider Monroe v. Pape, 365 U.S. 167 (1961). .

2There was testimo that an informant did relate that peti-

ing used to transport whiskey (R. 23).

was for ere they

13

_ | that are’ commands to the citizens,” Mr. Justice.

' Brandeis dissenting in Olmstead v. U mited States, 277

‘US. 438, at 485 (1928).

The decision below is clearly an “inducement to

7 subterfuge and evasion with respect to federal-state co-

operation. in criminal investigation” Elkins v. United

States, supra; at 222. The arrest and search are whally

on November 4, 1963. before the ere was even

booked, supra, p. 8.

3. Certiorari should be granted to pore the con-

supra, and failure of the courts below to follow it on

the facts presented. Preston held invalid the search —

of a motor vehicle which was not contemporaneous

with. the arrest. There, it was said: 4

. devoid of good faith. The arresting officers have yet eons

‘ “to institute formal prosecution in the: state courts,

supra, p. 9. The federal prosecution was inaugurated?

»

"flict between the logic of Preston. v. United States, .

“‘The rule allowing contemporaneous searches .

is justified, for: example, by the need to seize

weapons and other things which might be used to

assault an officer or effect an escape, as well as by ©

the need to prevent the destruction of evidence of

the’ crime—things which might easily happen

where the weapon or evidence is on the accused’s

_ person or under his immediate control. But these —

justifications are absent ‘where a search is remote

in time or place from the arrest. en eee

is under arrest and in custody, then a search made

at another place, without a warrant, is simply not —

Ineo the arrest.” 376 US., at 367

“she complaint for’ violation filed Monday, November 4, 1963,

alleged tha Oe Both [Roland and Brown] knew that Jackson’s

driver’s Teens had been revoked and attempted to stop him’’ (R.

4). Roland and Brown claimed at the trial that they arrested

petitioner for driving on a suspended license, a different offense. sate

- “x Falso in uno, faleo in omnibus: 2

ae

14

The Baich of petitioner’s car was wit ot justifiet?* ‘The

. status quo with respect to the vehicle could hay e been

* The justification—necessity rationale authorizing wucioudio

searches of motor vehicles has had a long ‘uneven development

in the courts. In Carroll v. United States, supra, prohibition agents

having probable cause to believe that an automobile traveling on

the highway was carrying liquor stopped. it; searched it, and -

‘found and seized the liquor. Provisions of the National Prohibi-

tion Act, a8 construed by the Court, authorized such warrantless

search of moving vehicles on probable cause, although the Act

required a warrant for a building search. The Carroll Court

_ found this distinctiorf reasonable, in light of (a) the historical

: cireumstange that the early Congresses, at the time of adoption.

- of the Bill of Rights, had authorized customs searches of vessels ~

: on probable cause without warrant,. and (b) the practical neces- ~~

~sity of law enforcement, with respect to vehicles, which may move’ .

on and disappear before a: warrant can be obtained; and Carroll

sustained the search, . Carroll itself thus involves a specific statu-

tory authorization of warrantless search, sand ame. Be, Eeasited te

cases in which a legislature has by particular enactment

finding of necessity for this sort of search; dictum in United balks

v. Di Re, supra,: 584-586, strongly supports such .a limitation; but —

the Court in Brinegar v. United States, supra, without discuss-

-ing the question; applied Carroll to sustain a warrantless auto- .

mobile search on probable cause in a case where no statute au-_

thorized such a.search. The argument limiting Carroll is com-

pelling, but the lower courts are unlikely to, take it seriously unless °

this Court itself agrees to reconsider Brinegar.. See, eg, Armada

v. United States, 319 F.2d 793, 797 (5th Cir. 1963). }

Preston is grounded upon Carroll? s necessity rationale. Preston

“invalidated .a“ warrantless search of an immobilized vehicle, im-

_ pounded; its driver under arrest. See also Rent v. United States,

209 F.2d 893 (5th Cir. 1954) ; United States v. Stoffey, 279 F.2d

924 (7th Cir. 1960). Preston requires. reconsideration of previous

lower court decisions, séme of which it has clearly overruled, e.g.,

Sirimarco v. United States, 315 F.2d 699 (10th Cir. 1963). Preston,

also, compels reconsideration of United States v. Rabinowitz, 339 -

U.S. 56 (1950). Preston revives Trupiano v. Umitege States, 334- —

~~ US. 699 (1948), overruled at least in partiin Rabinowntz. Trupiano

‘like Preston penalizes, in a different factual contex, the omission:

to obtain a warrant where a reasonable opportunity to do so

* existed. Canes Evian 16 scald Ss Glial Wilt $e Yo steerage

nies ionamin

\

:*

oe

pee ree until a died warrant was obtained. See

_ Adams v. United States, 336 F. 2d 752°(D.C. Cir.

1964). The officers had perfected the arrest and had

petitioner in custody in their own vehicle before the

*" search occurred, supra, p. 7. There was no danger

of escape or destruction of the fruits of the crime of:

“operating a motor vehicla,on a suspended. driver’s

license. Neither was there any probability of an

_. assault upon the officers. Nor can the search be saved

‘on the grounds that the officers had a custodial duty to

_* geize the vehicle as the instrument of the crime of.

operating a motor vehicle on a suspended license, for

the ‘seizing officers. were expressly barred by state law

_. from arresting for traffic infractions while patrolling . .

in an unmarked car, supra, p.3. Thus, to sanction the

search is to reward official illegality. Wong Sun v.

United States, 371 U.S8.471 (1963). oS

a

- CONCLUSION

“Fog. the foregoing - reasons the petition - writ ae ble a

certiorari should be granted.

see Respéctfully submitted,

—! Moor, JR.

~ 85914 Hunter Street, 'N. W..

Atlanta, Georgia 30314 :

: Jon H. Rorrw, Je. _ Peete

" “980 Gwinnett Street oe :

Augusta, Georgia

| Attorneys for. Petitioner

q3