Brief for the Respondent in Opposition — Pennington v. United States

& the Supreme Court of | te anited Sues

_-——-*™"-—-—- OCTOBER TERM, 1971

No. 71-94

JAMES LARRY PENNINGTON, PETITIONER

. . . U. .

Unirep StaTes or AMERICA

(ON PETITION FOR (1S WRIT OF CERTIORARL TO THE UNITED

STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR THE. UNITED STATES IN OPPOSITION

OPINION ‘BELOW

The opinion of the court of appeal te et. App, la-

. 8a) is not yet reported.

od URISDICTION

The judgment ef the court of appeals. was entered

on April 20, 1971. A petition for rehearing was de-

nied on June "8, 1971. Mr. Justice Black extended | “

the time for filing a petition for a writ of certiorari

to J uly 19, 1971, and on Jv ba 17, 1971, the petition was

filed. The jurisdiction of Ahis Court’ ds invoked under

28 U. S. C. 1254(1). |

(1) -

442-875--—-71

. 2

QUESTIONS PRESENTED

1. Whether the inventory of petitioner’s automo-

bile pursuant to, local police procedures, prior to the “

impounding of his car after his arrest for reckless °

~ driving, constituted an “unreasonable search” in vio. ~

lation of the Fourth Amendment.

2. Whether the testimony of two F.B.L agents, con-

cerning statements made to them by petitioner, was

improperly admittell.

| STATEMENT

Following a jury trial in the United States District

Court for the Southern District of Florida; petitioner

was convicted of interstate transportation of a firearm

by a felon in as of 15 U:S.C. (1964 ed.) 902. He’

was sentenced to mprisonment for-two years. |

In the early'morning hours of.October 18, 1965,

two Miami Beach police officers observed an automo-

bile traveling at a high, unlawful rate of speed (Tr.

21-22, 56-57,: 118-119, 128-129). After a high speed

_chase over a distance of some’ 25-30 city blocks, the

_ officers succeeded in stopping the vehicle, which was.

‘driven by the petitioner (Tr. 24, 58, 131). Petitioner,

. who had a duplicate Georgia driver’s license, but no

papers for the car, was placed under arrest for reck-

less driving (Tr. 25-26, 61-62, 121, 131). When a

-second officer. (Wilson) arrived, the arresting officer

said that he had called the. wrecker (Tr. 62-63). Offi- :

_ cer Wilson then walked to defendaw’s car. and

_ searched it for‘ valuables, for papers indiéating owner-

ship and “for any guns or anything else that could be

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used against us” (Tr. 63). A loaded gun was found in

the car and seized (Tr. 45, 64, 124, 133). Petitioner ~

was taken to the police station and a. wrecker towed -

the car away (Tr. 64).

Officers Young and Wilson testified that it’ was the

customary procedure in Miami Beach to take-a per-

son arrested for reckless driving to the police station

where. he could post a cash bond, and to impound

the car (Tr. 26, 61, 122-123, 132). Since the City of

Miami _ used commercial wreckers to remove - im-—

pounded autos, the local police procedutes required |

that an inventory of the contents of the vehicle be —

taken, in the presence of the driver, before releasing

the car and its contents to the wrecking company, .

' from whom the driver would later recover his car .

>and its contents (Tr. 27-28, 61-62, 133). A panel of

the court of appeals originally reversed petitioner’s

conviction (Pet. App. 10a-18a) on the ground that the

seizure of the weapon was unlawful since a search

would not be a necessary incident :to a traffic violation @

and was not necessary to protect the officers.

Subsequent to this Court’s decision in Chambers v.

. Maroney, 399 U.S. 42, the court of appeals granted —

the government’s petition for rehearing, withdrew its

earlier opinion and substituted a new opinion which.

affirmed petitioner’s conviction (Pet. App. la-Sa). It

held that the pistol was not the fruit of an unlawful

search or seizure since the real purpose of. the in-. *

ventory which uncovered the pistol was the protec-

- tion of personal effects contained in an automobile ©

~ lawfully impounded: (Pet. 7-€a).

| ARGUMENT Te

_ 1. The final ruling of the court of appeals as to the:

validity of the. seizure of the weapons was correct

since the evidence clearly established that it was nor-

mal police procedure to make an inventory of a car

prior to impounding it after its driver had been ar-

_ rested for reckless driving.

The inventory sprocedure was designed to- eetost .

the owner of the vehicle as well as the police, and was

-- not,,in a situation such as this, an attempt to engage

in a “fishing expedition” to discover contraband or

evidence of a crime. In addition, in this case, the offi-

cers were ‘justified in searching the car for evidence

of ownership since petitioner produced none. Under —

_ these circtimstances, the discovery of the pistol was not

the result of an “unreasonable search”’ in violation of

the Fourth Amendnient. See Chambers v. Maroney,

399 U.S. 42.

2. At trial, it was shown that petitioner had pur-

chased the gun in Atlanta on July 1, 1965 (Tr. 175).

There was also testimony that, in October 1966, peti-

’ tioner voluntarily responded to a -request from the

F.B.I. office in Atlanta to discuss matters unrelated to

~his_1965 arrest in Miami. During the course of the

discussion, after petitioner had been given warnings

‘as to his rights, petitioner stated in reference to a

“question about the Miami incident, that he did not

know that it was a felony for a-convicted felon to

transport a pistol in-interstate commerce. He did not

then say he had sold the gun to one Pridgen (Tr. 164-

165, 167, 170, 172). Wayne Pridgen, a friend of peti-.

tioner’s, testified for the defer8e that le had bought

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the. pistol from petitioner in late summer, 1965

(Tr. 188), and brought it with him when he came to

Miami with petitioner without informing petitioner

of the presence of the gun (Tr. 189-190). Pridgen stated

_ that he had placed the gun in the glove compartment

of the car rented by petitioner while his own car was _-

_being serviced, again without notifying petitioner of

. the presence of the gun (Tr. 191, 193).

Petitioner contends (Pet. 14-15) that it was error |

to admit the F.B.I. testimony in the goveriiment’s

ease in chief arguing that the testimony had little

probative value. The testimony did, however, tend to

show petitioner’s continued owner ship in Miami of the

_ gun purchased in Atlanta and was therefore proper

‘evidence. Petitioner also argues that because of the .

“heroic aura accorded the F.B.I. in the mind of the

public” (Pet. 15), the jury might have given undue

weight to the agent’s testimony. The trial judge, how-

ever, instructed the jury that extra- judicial statements

allegedly made by esata were to be viewed with

caution. °

CONCLUSION

It is therefore veenoetfully dint that the peti-

. tion for a writ of certiorari should be denied.

ERWIN N. GRISWOLD,

Solicitor General.

. Witt WILson, .

Assistant. Attorney General.

BEATRICE: ROSENBERG,

RICHARD A. _LEvIE, :

‘ . Attorneys.

SEPTEMBER 1971.

‘3 CIVERNMENT PRINTING OFFICE: 1971

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