Petition for a Writ of Certiorari — Wilson v. United States

Supreme Court, U.S.

LIBRARY [? FILED

-OURT, Us Be apr 80 1971

BE, ROBERT SEAVER, OL. t

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1970

No. 1.6.5.9

EDWARD BRITT WILSON,

Petitioner,

VS.

F UNITED STATES OF AMERICA,

‘ Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Rosert B. THOMPSON

P. O. Box 677

Attorney for Petitioner

Ce AO” oli ecient meena ea ——~

INDEX

(a) Reference to Official Report ...... 1

(b) Grounds of Jurisdiction ...... 2

(c) Question Presented 3

(d) Constitutional Provisions and Statutes Involved... 3

(e) Statement of the Case .. 4

Reasons for Granting the Writ 5

a PERCE TO SOL ECD I Sey PCE OE OOM TS 10

Certificate of Service 10

Appendix— oe

Opinion, United States Court of Appeals, Fifth Cir-

cuit . Al

Judgment, United States Court of Appeals, Fifth Cir-

cuit .. OME A see PNA Cre AE TE WS WER LF ANA CRA" REPS ON A2

Table of Authorities

CASES

Barnett v. United States, 5 Cir., 384 F.2d 848 .............. 6

Carroll v. United States, 267 U.S. 132 YY

Chambers v. Maroney, ........ SR iaiciias , 90 S.Ct. 1975 ....5, 6,7

Chimel v. California, 395 U.S. 752 is

McDonald v. United States, 335 U.S. 451...

Preston v. United States, 376 U.S. 364 ..................

Ranson v. Cupp, 9 Cir., 423 F.2d 248 oe

Rent v. United States, 5 Cir., 209 F.2d 893 ................

United States v. Adams, 5 Cir., 424 F.2d 175 _.................

United States v. Harvey, 7 Cir., 397 F.2d 526 ...................

United States v. Nikrasch, 7 Cir., 267 F.2d 740 ................

Williams v. United States, 5 Cir., 382 F.2d 48 ................

II INDEX

CONSTITUTIONAL PROVISIONS

AND STATUTES

Fourth Amendment, Constitution of the United States ..

Title 26, United States Code, Section 5205 (a) (2)

Title 26, United States Code, Section 5604 (a) (1)

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1970

No.

EDWARD BRITT WILSON,

Petitioner,

Vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

(a)

REFERENCE TO OFFICIAL REPORT

The opinion of the United States Court of Appeals for

the Fifth Circuit in this case was published March 31, 1971,

and is reported in ___.. F.2d _.... It is captioned United

States of America, Appellee v. Edward Britt Wilson, Ap-

pellant. A copy of the official opinion in this case is ap-

pended hereto.

2

(b)

GROUNDS OF JURISDICTION

The decision of the United States Court of Appeals

for the Fifth Circuit sought to be reviewed here is not

published in the official reporter as yet. It is entitled

United States of America v. Edward Britt Wilson, and is

dated March 31, 1971. The court below entered an order

staying its mandate for a period of 30 days from March

31, 1971, to and including April 30, 1971, pending the fil-

ing and ultimate disposition of this petition for writ of

certiorari.

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1), and under and by virtue of Title 18, U.S.C.

3772, within the time provided for in Rule XI and Rule

22(2) of the Rules of Practice and Procedure of the Su-

preme Court of the United States.

Jurisdiction of this Court is invoked because the United

States Court of Appeals for the Fifth Circuit has decided

important questions of federal law of gravity and impor-

tance in the administration of criminal justice which have

not been but should be settled by this Court. It has decided

an imporiant and significant question of Constitutional law

contrary to the decisions of this Court and has refused to

follow the precedents of this Court on that Constitutional

issue. The decision of the Fifth Circuit Court of Appeals

in this case on substantial issues is contrary to decisions

of other cases decided by the Fifth Circuit. In its rulings,

the Court has so far departed from the accepted and pre-

scribed course of judicial proceedings so as to require the

exercise of this Court’s power of supervision to correct the

errors inherent in its decision.

3

(c)

QUESTION PRESENTED

May a parked and locked automobile be searched by

federal officers, having probable cause for the search, but

without a search warrant and not incident to an arrest,

consistent with the mandates of the Fourth Amendment

to the Constitution of the United States.

(d)

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

The Fourth Amendment to the Constitution of the

United States provides:

“The right of the people to be secure in their persons,

houses, papers and effects, against unreasonable

searches and seizures, shall not be violated, and no

warrants shail issue, but upon probable cause, supported

by Oath, and particularly describing the place to be

searched, and the persons or things to be seized.”

Title 26, Section 5205(a) (2), United States Code:

“No person shall transport, possess, buy, sell, or trans-

fer any distilled spirits, unless the immediate con-

tainer thereof is stamped by a stamp evidencing the

determination of the tax or indicating compliance

with the provisions of this chapter. . .”

Title 26, Section 5604(a) (1), United States Code:

“Any person who shall transport, possess, buy, sell,

or transfer any distilled spirits, required to be stamped

under the provisions of Section 5205(a) (2), unless the

immediate container thereof has affixed thereto a

stamp as required by such section . . . shall be fined

not more than $10,000, or imprisoned not more than 5

years, or both, for each such offense.”

(e)

STATEMENT OF THE CASE

Petitioner was indicted in the United States District

Court for the Northern District of Georgia, charged with

possession of nontaxpaid distilled spirits. A pretrial mo-

tion to suppress evidence was overruled. The trial resulted

in a judgment of conviction and a sentence of three years’

imprisonment and a $5,000 fine “to stand committed for

payment of said fine.” The conviction was summarily af-

firmed on appeal to the Fifth Circuit Court of Appeals.

The facts disclosed by the evidence that the nontax-

paid distilled spirits involved in the prosecution were con-

tained in a 1963 Pontiac automobile which was parked on a

lot behind a tavern in Atlanta, Georgia. The .ehicle was

locked and the driver had gone into the tavern anda there-

after departed from the premises with Petitioner, who had

followed him into the parking lot in another vehicle. There

were seven officers in the immediate area, all of whom

were participating in the investigation and were in actual

or radio contact with each other.

Two of the officers went to the site of the parked,

locked Pontiac and investigated it. After smelling the odor

of nontaxpaid distilled spirits around the trunk of the ve-

hicle, they searched the same by forcing a tool under the

trunk lid so as to raise the lid sufficiently to permit them

to shine a flashlight into the trunk. They observed gallon

plastic jugs in the trunk. Following this, the officers broke

into the body of the locked vehicle where they found an

additional quantity of distilled spirits. We have not re-

cited all of the evidence relating to probable cause, for the

reason that it is conceded that those facts, together with

the fact that the officer smelled the odor of distilled spirits

before he searched the vehicle by forcing the trunk lid,

H)

supplied him with sufficient probable cause to reasonably

believe that the vehicle contained illicit distilled spirits.

After the vehicle was searched, by use of his radio, the

searching officer contacted other officers who were par-

ticipating in the investigation. They arrested Petitioner

and the driver, who were an undisclosed distance down

the street. The identity of both of these parties was al-

ready known to the officers and there is no evidence or

suggestion that they were attempting to escape.

REASONS FOR GRANTING THE WRIT

The decision of the court below has decided, without

opinion, an important question of Constitutional law in a

manner contrary to the decisions of this Court. While the

precise factual situation has not been presented to this

Court, the decision below is inconsistent with the teachings

of Preston v. United States, 376 U.S. 364, and Chambers v.

Maroney, ........ Li See , 90 S.Ct. 1975. More than this, the

decision is contrary to other decisions of the Fifth Circuit

Court of Appeals referred to below.

The search took place when the officers forced the

trunk lid and thereafter broke into the vehicle. The ar-

rests were made after the search and at a place remote

from it; thus, the search was not incident to the arrests.

The recognized principle that, assuming the existence

of probable cause, “automobiles and other vehicles may be

searched and without warrants ‘where it is not practicable

to secure a warrant because the vehicle can be quickly

moved out of the locality or jurisdiction in which the war-

rant must be sought’ ”, Chimel v. California, 395 U.S. 752, fn.

9, page 763, does not obtain here for the simple reason that

the test it recites is not met. There was no grave emer-

gency, indeed, no reason at all why the officers should not

have complied with the mandate of the Constitution. The

SEPARATES Tee

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CRRA Rahs tae nce Raabe ¢ .

sa Sal SS ine aE Bi abe Kh des od WR

6

right of privacy is deemed too precious to entrust to the

discretion of those whose job is the detection of crime and

the arrest of criminals. McDonald v. United Staies, 335

U.S. 451, 455. The burden of establishing facts which

would justify a warrantless search was upon the Govern-

ment. Even Carroll v. United States, 267 U.S. 132, which

created the exception relating to the search of moving ve-

hicles, admonished that, “where the securing of a warrant

(to search a vehicle) is reasonably practicable, it must be

used.” (267 U.S. 132, 156).

The cases decided subsequent to Preston v. United

States, 376 U.S. 364, which either follow its teaching or

distinguish it, see for instance United States v. Nikrasch,

7 Cir., 267 F.2d 740; Barnett v. United States, 5 Cir., 384

F.2d 848; United States v. Harvey, 7 Cir., 397 F.2d 526; and

Ranson v. Cupp, 9 Cir., 423 F.2d 248, are not apposite for

the reason that they all involved an arrest and subsequent

search of a vehicle at a place remote from the place of

arrest at a time when the vehicle was in actual custody.

For a discussion of a number of those cases, see Barnett

v. United States, supra. However, they are enlightening

in the present situation. Reference to them might be

helpful to the Court.

In overruling the motion to suppress evidence, the

trial court relied upon Chambers v. Maroney, _..... US.

sauution , 90 S.Ct. 1975. That case is readily distinguishable

from the decisions of the Appellate Courts and the Su-

preme Court cited herein. That case involved a search

by local police and was before the Supreme Court on

certiorari in a habeas corpus proceeding. It concerned

the admissibility of evidence seized from an automobile

in which Chambers was riding at the time of his arrest.

Following the arrest, the vehicle was taken to a police

station and thoroughly searched without a warrant. The

7

Supreme Court held such search to be consistent with the

Fourth Amendment.

Here, as in Chambers, the search was not an incident

to the arrest, since Petitioner was not arrested until after

the search took place. He was arrested at a locality re-

mote from the place of the search. However, in Chambers

the “vehicle could have been searched on the spot where

it was stopped since there was probable cause to search

and it was a fleeting target for a search.” Such facts do

not obtain in the present case. The Chambers arrest in-

volved the stopping of an occupied vehicle and the arrest

of its occupants at a time when it was readily mobile. The

primary question presented there was whether the officers,

who would concededly have been authorized to search

the vehicle on the spot without a warrant were justified in

removing it to the police station before effecting the

warrantless search. In terms of “lesser” and “greater”

intrusions, the Supreme Court merely held that, under the

given facts, given probable cause to search, it was not

unreasonable to remove the vehicle to the police station

to effect the search. It was a question, in final analysis,

of convenience; the right to search having been established

by the prior arrest and the fugitive nature of the vehicle.

In the present case neither of these supportive ele-

ments are present. There was no prior arrest and there

was an already immobilized, not fleeting, vehicle. Absent

these elements an entirely different factual and legal sit-

uation is presented. The trial court overlooked these

significant distinctions. It is noteworthy, in weighing

and applying these two very pertinent elements, that

Chambers did not overrule Preston v. United States, supra.

The facts in Rent v. United States, 5 Cir., 209 F.2d 893,

differ to some extent from those present here in that the

vehicle was searched after it had been taken into “pro-

8

tective”’ custody by the officers. This distinction, how-

ever, is in form and not of substance, for the officer testified

that he would not have permitted Petitioner’s vehicle to

be moved. In Rent, after quoting from one of its earlier

cases, the Fifth Circuit said:

“As authority for that statement, this Court cited the

case of Carroll v. United States, 267 U.S. 132, and in

that case the Supreme Court recognized,

‘a necessary difference between a search of a store,

dwelling house, or other structure in respect of which

a proper official warrant readily may be obtained

and a search of a search of a ship, motor boat,

wagon, or automobile for contraband goods, where

it is not practicable to secure a warrant because the

vehicle can be quickly moved out of the locality or

jurisdiction in which the warrant must be sought.’

Carroll v. United States, 267 U.S. at page 153.

“The reason for the difference does not exist in this

case. The automobile was at rest, was actually in the

custody of the officers, locked, and not likely to be

disturbed.”

After discussing the above, the general rules relative

to the necessity for a warrant and to the application of the

principle of practicability of procuring a warrant, the Court

of Appeals, in Rent, at page 899 of the Reporter, continued:

“We think that one of the facts and circumstances to

be considered in this case is the fact that there was

no reason for not submitting to a magistrate the evi-

dence which the officer deemed sufficient to justify

a search of the automobile. The need for effective law

enforcement is not satisfied as against the right of pri-

vacy by any necessity for the officer to take the deci-

sion in his own hands. The officer had ample oppor-

tunity to apply for a search warrant and in our opinion

a search of the automobile without a warrant was not

justified.”

9

The search in the present case took place when the

officers forced the lid to the trunk so as to observe its con-

tents. Conceding that probable cause existed for the

search and/or seizure of the vehicle, under the circum-

stances present here, as in Rent, the facts should have been

presented to a magistrate. The automobile was at rest; it

was locked, and not likely to be disturbed. We think it

without significance that the vehicle was not in actual cus-

tody at the time of the search. It was, for present purposes,

not subject to be removed from its location or from the

presence of the officers.

In Williams v. United States, 5 Cir., 382 F.2d 48, it was

held that even where probable cause for a search existed,

a warrantless search of a vehicle is forbidden unless made

incident to a lawful arrest or justified by exceptional cir-

cumstances, such as a significant possibility of removal or

destruction of the object of the search. Had someone at-

tempted to remove the vehicle, perhaps such exceptional

circumstances would have existed and at that time the of-

ficers would have been justified in making an arrest and/or

a search.

The test applicable here does not justify the search.

As was said by the Fifth Circuit in United States v. Adams,

5 Cir., 424 F.2d 175:

“The search was not necessary to protect the officers,

no emergency existed, nor was there danger that evi-

dence might be lost, or that the vehicle might be re-

moved. Accordingly, we conclude that the evidence

obtained through and as a result of the search . . . was

not admissable.”

In summary, Petitioner’s Pontiac was parked and

locked. The suspects were not under arrest and, while

in the vicinity, were at a place remote from the vehicle.

There were seven officers in the vicinity, two of whom

were in the presence of the vehicle and all of whom were

10

in radio contact. A number of Commissioners, Judges

and Magistrates authorized by law to issue search war-

rants were local. There was no possibility that the vehicle

would be moved. No justification for the seizure of the

vehicle without a warrant or for its search without a war-

rant was shown by the United States. Accordingly, the

search and seizure were unlawful and the evidence ob-

tained thereby should have been suppressed.

CONCLUSION

For the reasons submitted, it is respectfully urged

that this Petition for the writ of certiorari should be

granted and that this Court should determine that the

Court below erred in affirming the judgment of the trial

Court.

Respectfully submitted,

weeee Oe

Attorney for Appellant

P. O. Box 677

Gainesville,

Georgia 30501

CERTIFICATE OF SERVICE

The undersigned does hereby certify that true copies

of the foregoing petition of Edward Britt Wilson were de-

posited in the United States Post Office with airmail

postage prepaid, addressed to the Solicitor General of the

United States, Department of Justice, Washington, D. C.

and to The Honorable John W. Stokes, Jr., United States

Attorney, P. O. Box 912, Atlanta, Georgia.

This the 28th day of April, 1971.

Rosert B. THOMPSON

Al

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 30926

Summary Calendar*

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EDWARD BRITT WILSON,

Defendant-Appellant.

Appeal from the United States District Court for the

Northern District of Georgia

(March 31, 1971)

Before BELL, AINSWORTH, and GODBOLD,

Circuit Judges.

PER CURIAM: AFFIRMED. See Local Rule 21.

*Rule 18, 5 Cir., Isbell Enterprises, Inc. v. Citizens Casualty

Company of New York, et al.,.5 Cir., 1970, 431 F.2d 409, Part I.

1. See N.L.R.B. v. Amalgamated Clothing Workers of Amer-

ica, 5 Cir., 1970, 430 F.2d 966.

A2

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

OCTOBER TERM, 1970

No. 30926

Summary Calendar

D. C. Docket No. CR A-26286

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EDWARD BRITT WILSON,

Defendant-Appellant.

Appeal from the United States District Court for the

Northern District of Georgia

Before BELL, AINSWORTH and GODBOLD,

Circuit Judges.

JUDGMENT

This cause came on to be heard on the transcript of the

record from the United States District Court for the

Northern District of Georgia, and was taken under sub-

mission by the Court upon the record and briefs on file,

pursuant to rule 18;

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgment of

the said District Court in this cause be, and the same is

hereby, affirmed.

March 31, 1971

Issued As Mandate: