Petition for a Writ of Certiorari — Penaat v. City of San Jose

INDEX

Page

Opinions Below 2

Jurisdiction 2

. Questions Presented 3

Constitutional Provisions

oe ‘Involved 4

Statement of the Case 5

- Reasons for Granting the Writ 8

— Conclusion 14

Cases Page

Carroll v. U.S. 9

Chambers v. Maroney 7-8, 10, 12

Chimel v. California 10

Cooper v. California 9, 12

Harris v. U.S. 9

Ker v. California 5

Mozetti v. Superior Court 10

Preston v. U.S. 9

Statutes

U.S. Constitution

Fourth Amendment

U.S. Constitution

Fourteenth Amendment

PETITION FOR WRIT

OF CERTIORARI

TO THE SUPREME COURT OF THE UNITED STATES

William H, Penaat, petitioner herein,

prays that a Writ of Certiorari issue to re-

view the judgment of the Court of Appeal of

the State of California, First Appellate Dis

trict, Division I, ruling in the above case

Made on April 4, 1972; the Supreme Court

of the State of California denied a peti-

tion for hearing of the case on May 31,

1972.

PMA NOS RE ALN REY PROT E eMI

OPINIONS BELOW

The opinion of the Court of Appeal

of the state of California, First Appellate

District, Division I, Wm. H. PENAAT vs. City

of San Jose, is reported at 24 Cal. App.

3d, 707, a copy thereof is appended hereto.

JURISDICTION

The judgment of the Court of

Appeals of the State of California, First

Appellate District, Division I was made

and entered on April 4, 1972. A petition

for hearing of the matter by the Supreme

Court of the State of California was denied

by order made and entered on May 31, 1972.

The jurisdiction of this Court is invoked

under 28 U.S.C. §1257(3), in that a right,

claim and immunity asserted to exist under

the Constitution of the United States, under

amendments Four and Fourteen, has been denied

by the State Court.

EE PLL OT PT ERR OPEL EO

=

SS ere eer oe Ee ee

QUESTIONS PRESENTED

Petitioner is the registered owner

of the subject motor vehicle. Petitioner's

automobile was parked and locked at the

curb of a four lane, one-way street in

San Jose, California. The vehicle was not

suspected of being involved in the commis-

sion of a crime nor was it believed to

contain contraband. it was, however, left

there illegally, in that by local ordinance

motor vehicles are prohibited from parking

oa that street between assigned hours of

the day.

Pursuant to the ordinance the San

Jose Police Department cited the automo-

bile and called for a tow truck to re-

move it. Upon arrival and prior to tow-

ing, the operator forced an entry into

the locked vehicle, released the brake,

Placed the gear in neutral and hitched

it to the tow vehicle. The automobile

r was removed without Petitioner's know-

ledge or consent to a private garage.

The questions presented are;

1. Does the Opening and entry

of a locked motor vehicle under such

circumstances violate the Pourth and/or

Pourteenth Amendments to the United States

Constitution?

2. If such entry is constitution-

ally prohibited does this make the subse-

guent towing of the automobile constitution

ally forbidden as being the fruit of an

“unreasonable search and seizure."?

CONSTITUTIONAL PROVISIONS

INVOLVED

The Fourth Amendment to the United

Constitution Provides:

"The right of the People to be

secure in their persons, houses,

Papers, and effects, against un-

Warrants shall issue, but upon

Probable cause, Supported by Oath

or affirmation, and Particularly

describing the Place to be searched,

The Fourteenth Amendment to the

United States Constitution, Section I,

provides:

"All persons born or naturalized

in the United States, and subject

to the jurisdiction thereof, are

citizens of the United States and

of the State wherein they reside.

No State shall make or enforce any

law which shall abridge the pri-

vileges or immunities of citizens

of the United States; nor shall any

State deprive any person of life,

liberty, or property, without due

process of law; nor deny to any per-

son within its jurisdiction the

equal protection of the laws."

The Fourteenth Amendment has been held to

be the means of enforcing the provisions of

the Fourth Amendment from unreasonable

State interference. Ker v. California,

374 U.S. 23,33, 10 L.Ed2a 726, 83 S.Ct. 162

(1963).

STATEMENT OF THE CASE

Petitioner's vehicle was illegally

parked, in violation of a posted city

ordinance, at a location marked as a

tow-away zone. San Jose City Police

ticketed the vehicle in preparation for

its removal. The tow truck Operator found

the doors locked yet entered the vehicle

and took it to a private garage for

‘storage.

Petitioner, contending that the

entry into the locked vehicle was a viola-

tion of rights under the Fourth Amendment

to the United States Constitution, brought

a class action in the Superior Court of

Santa Clara County, California, for an

order permanently restraining the City of

San Jose from entering automobiles which

were about to be towed without the per-

mission of the owners thereof and applied

for a preliminary injunction to the same

effect.

Petitioner raised the constitu-

tional question in his original complaint

wherein he demanded relief for the illegal

search and for illegally entering his

vehicle. Plaintiff's complaint, paragraph

RETA ERR ———— PLE TRL LEE a SSID

r———————

xX.

The issue was again raised in Peti-

tioner's motion for a temporary injunction

where he asked that the defendant City of

San Jose (hereinafter City) be restrained

("from entering automobiles which are

about to be towed"). See also, opening

statement at the hearing on the motion,

(Rptrs trans. 3 L10) and the points and

authorities submitted to the trial court.

(Par. 11 p.2. L 15, 16.)..

The trial court denied the motion

for the preliminary injunction and from

its judgment petitioner appealed to the

Court of Appeal of the State of California

First Appellate District, Division I.

Petitioner's opening brief in the

Court of Appeals states at page 5:

"In enforcing the Fourth Amend-

ment's prohibition against un-

reasonable searches and seizures,

the Court has insisted upon pro-

bable cause as a minimum require-

ment for-a reasonable search permitted

by the Constitution." Chambers v.

_ J=- —_ _

_—_ PL NTIS LIE IL tS ET OOS ELT IF: TE RE Aimer pe

ET ee

saehineenenieieadtemin tata aaeeeet oe

_ —

Maroney, 399 41 s. 42 26 L.Ed2a 419,

428, 90 S.Ct. 1975 (1970),

Petitioner then States in his Reply

Brief, page 2:

Street. This can be accomplished

without entry into the vehicle in

violation of the Owner's Fourth

Amendment rights. Tr. p17, 20,

24."

The Court of Appeal, on April 4,

1972, filed its judgment affirming the

decision of the trial court. Petitioner

thereupon petitioned the Supreme Court of

the State of California for a hearing of

the matter. The Supreme Court's order deny-

ing such hearing was filed On May 31, 1972,

Petitioner urges that such entry

is a violation of petitioner's Fourth

Amendment guarantees, that the seizure was

thus void and the subsequent towing of the

vehicle illegal.

REASONS FOR GRANTING THE WRIT

It has been held by this court

-f=

. CRETE OS ATOR gee eR pS EN,

. are ons

-_ ee Ses gers reas y [OAR IE RM

—— eNO MIT AAMT A a *

__ — SEIS saat

in Carroll v. U.S., 267 U.S. 132, 692 L.

Ed 543, S.Ct. 132 (1925) that officers are

entitled to stop and search the fleeting

target of an automobile if they believe

it to contain contraband.

In Preston v. U.S., 376 U.S. 364,

11 L.Ed2d 777, 84 S.ct. 881 (1964) this

court held that a car, towed to a garage

and then searched, having been deprived

of mobility, could be searched only with

prior judicial approval.

Cooper v, California, 386 U.S.

58, 17 L.Ed2d 730, 87 S.ct. 788 (1967) hold

that "lawful custody of an automobile does

not of itself dispense with constitutional

requirements of searches thereafter made

of it". (Page 61) :

In Harris v. U.S., 390 y.s. 234, 19

L.Ed2d 1067, 88 S.ct. 992 (1968) this court

held that "once the door [of the car) had

lawfully been opened,” objects in view are

=9—

: LRA S TE EOE LAAT RNIN UR AER

— LEP IEEE IE BES ANE RE PINT RNY LEONE ae

eR aie ie REN or Be . i ni

I

subject to seizure. (Page 236)

In Chimel v. California, 395 U.S.

752, 23 L.Ed2d 685, 89 S.ct. 2034 (1969)

it is held that a search incident to an

arrest is limited to the person of the ar-

restee and the area “within his immediate

control". The Preston case was cited with

approval.

In Chambers v. Maroney, 399 U.S.

42, 26 L.Ed2d 419, 90 S.ct. 1975 (1970)

the court held that "Given probable cause

to search", an immediate search without

&@ warrant is reasonable.

These pronouncements of this court

do not provide precise rules by which the

current matter can be judged.

in the case of Mozetti v. Superior

Court, 4 Cal.3d 699 (1971) the police

conducted an inventory search of an

automobile that they had removed from

a public highway following the emergency

hospitalization of the vehicle's Owner.

—

. — -

a — =e

ne California Supreme Court held that the

inventory search violated the Fourth Amend-

ment's proscription of unreasonabilc-

searches and seizures, finding that the

vehicle owner's interest in privacy

outweighed any conflicting interests

in the preservation of the owner's pro-

perty during the period when ne was ab-

sent from his car. (Page 707) The court

goes on to direct the police to “simply

close the windows and iock the doors

rather than search the contents of their

cars". (Page 708) The Mozetti Case was

called to the attention otf the Court

of Appeal in petitioner's reply Diief

in contending that the tow uperator's

entry of the locked vehicle was a viola-

tion of Fourth Amendme:t riguts. (Reply

Brief, p2) The Court of Appeal, mowever,

brushed this argument aside and Sustained

the judgment of tiie tiial court. Mocetti

Was also called to tise attention of the

a . _~

- ee =

CL PERE EL ET LE, SERS PEE LOLI AO TS

Supreme Court. (Petition for Hearing, pl)

As Mr. Justice Douglas aptly said

in his dissent in Cooper vy, California,

Supra, at page 65,

"these days police often take

Possession of cars, Carrying them

away when improper ly barked. Those

cars are ‘validily' heid by the

police. Yet if they can be searched

without a Warrant,=the precincts of

the individual are invaded and the

barriers to Privacy breached,"

This court has said:

"In entorcing the Fourth Amend--

ment's prohibition agaiust un-

reasonable searches and Selzures

the Court has insisted upon pro-

bable cause as a minimum require-

ment for a reasonable search per-

mitted by the Constitution."

Chambers V: Maroney, supra, 428.

eee

There ais nothing about a parked

automobile to Justily wpening and search-

ing it prior to towing it away. Vehicles

can be towed, without being opened,

through the use of a dolly. The record

Shows there was nothing about petitioner's —

Parked vehicle to give probable cause to

believe that it was involved in the com-

rer

J

‘

aie

PES RP EE

‘ DS

RR Ores

mission of a crime or that it contained

contraband and there was no justification

for its entry without the Owner's permission

The questions presented by this

case are weighty and of recurring signifi-

cance. Hundreds of vehicles are towed

away for improper parking each day in the

United States, many of them under circum-

stances similar to those now presented

to the Court. The Supreme Court of the

State of California upheld the right of

police to open and search locked vehicles,

by declining to review the decision of

the Court of Appeal. This establishes, in

California at least, a fegal principle

that appears at variance with constitutiona

principles f1xed by this Court. Since the

Fourth Amendment rights of many citizens

throughout the land in addition to Calif-

Ornia are directly arfected by this type

Of police activity, it is desirable for

this Court to review the matter.

—_ not ra . — =] j3~ —_ . -

ENN IF TLL ONE EE NE

CONCLUSION

For the reasons set forth above,

it is respectfully submitted that this

petition for a Writ of Certiorari should

be granted.

: Attorney for Petitioner

-14-

_—_— a

SOLO SAIL LOLOL PSE EIR PE ON OT oa

PROOF OF SERVICE BY MAIL

NO. 29559

I am a citizen of the United States,

over 18 years of age, a resident of Santa

Clara County, and not a party to the

within action. My business address is

330 North Market Street, San Jose, Cali-

fornia, 95110. I served three (3) copies

of the attached: PETITION FOR WRIT OF CER-

TIORARI TO REVIEW JUDGMENT OF THE SUP REME

COURT OF THE STATE OF CALIFORNIA, by pla-

cing said copy in an envelope addressed to:

CITY CLERK

CITY OF SAN JOSE

CITY HALL

801 North First Street

San Jose, California

Each envelope was then sealed and

postage fully prepaid thereon, and was

on August 25, 1972, deposited in the

United States mail at San Jose, California.

That there is delivery service by United

States mail at the place so addressed,

or regular communication by United States

mail between the place of mailing and

the place so addressed.

I declare under penalty of perjury that

the foregoing is true and correct.

Dated: August 25, 1972, at San Jose,

California.

/s/

MARY LOU LAFUENTE

Y LOU LAFUENTE

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INDEX

Page

Summary of Proceedings 1

Preliminary Statement 2

Reasons Why Writ Should Be Denied 6

Conclusion

TABLE OF AUTHORITIES

Cases

Carroll v. U. S.

Chambers v. Maroney

Chimel v. California

Cooper v. California

Hale v. Henkel

Harris v. U. S.

Ker v. California

Mozetti v. Superior Court

Preston v. U. S.

Statutes

U. S. Constitution

Fourth Amendment

U. S. Constitution

Fourteenth Amendment

Texts

Cal Jur

U. S. Supreme Court Digest

SUMMARY OF PROCEEDINGS

Petitioner sought and was denied an

injunction to restrain City from entering

illegally parked cars for the purpose of

towing them away and from towing such cars

to private garages that had been designa-

ted by the Chief of Police pursuant to

towing contracts negotiated by him with

the garages and tow truck operators. Pe-

titioner contends that the City's policy

of having the Chief of Police negotiate:

the contracts violated Veh. Code, § 22850,

requiring that a removed vehicle be towed

to “e garage designated . . . by the gov-

ernmental agency of which the officer or

employee is a member..." Petitioner

also contended that entry into illegally

parked vehicles by police or tow-truck

operators about to tow the vehicle was

unconstitutional and illegal. Moreover,

petitioner contended that removal of such

vehicles after such entry constituted auto

a Oi al SC PMry

—

theft. (Superior Court of Santa Clara

County, No. 242836, 0. Vincent Bruno, Judge.)

The Court of Appeal affirmed the denial

of the injunction. The Court pointed out

that petitioner had made no showing that

the authority to negotiate the towing con-

tracts had not been validly designated and

held that, under the circumstances, the

statutory presumption of regularity in

official functions was controlling. The

court also held that, absent a showing of

unreasonableness in the means chosen or

the force used, authorized entry into il-

legally parked cars was valid and that

removal of the cars in accordance with

the Vehicle Code and local ordinances was

not auto theft. (The California Supreme

Court denied a petition for hearing of the

case on May 31, 1972.)

PRELIMINARY STATEMENT

Respondent wishes to point out the

following matters in response to Petitioner's

"Question Presented": that Petitioner's

vehicle was parked on a one-way street

which was a main commute thoroughfare and

means of egress for homeward-bound traffic

between the hours of 4:00 p.m. and 6:00 p.m.;

and Petitioner admits that his automobile

had been “left there illegally," in viola-

tion of a posted City ordiriance at a loca-

tion marked as a tow-away Zone. Further,

Petitioner's contention that it was un-

necessary to gain entry into his parked

vehicle for purposes of removing it from

the street--and that other means should

have been used--was answered by the Court

of Appeal of the State of California, be-

low:

“The means chosen for removal,

for entering the vehicle and re-

leasing the gears and brake to

avoid damage to the impounded ve-

hicle, seems reasonably chosen to

minimize loss to the Plaintiff.

Exigent circumstances exist, re-

quiring rapid removal of vehicles

parked in illegal obstruction of

the heavy rush-hour traffic. The

means used is apparently customary

and normal, whether removing a

vehicle at private request or for

public need. Since there is no

showing of unreasonableness in the

means chosen or the degree of force

used, the trial court's ruling as to.

the validity of the entry is proper."

|

(24 CA 34 707, at pp. 709-710.)

It is Respondent's main contention

that the opening and entry of an illegally

parked vehicle for purposes of removing it

from a public street, under these circun-

stances, is neither a "search" nor a "sei-

zure" under the Fourth and/or Fourteenth

Amendments to the U. S. Constitution, nor

any ruling of this Court:

|

"The word 'search' implies

some exploratory investigation, or

an invasion and quest--a looking

for and seeking out. It also im-

plies a prying into hidden places

for that which is concealed and

that the object searched for has

been hidden or intentionally put

out of the way. The observing

of that which is open and ,patent,

however, is not a search."

44 Cal Jur 2d (Rev.) “Searches &

Seizures.” Sec. 2, p. 6, and cases

cited in footnotes 10, 1l, and 12.

"A search ordinarily implies

@ quest by an officer of the law,

and a seizure contemplates a for-

cible dispossession of the owner."

mee =~ ee —"

Cine adnate

> .

"Objects falling in the plain

view of a police officer who has the

right to be in the position to have

that view are not the product of a

search."

12 U.S. Supreme Court Dircest

“Search & Seizure” Sec. ©, p. 53

aes Sa Sr i,

> 88S. Ct. 992 (1968).

In the present case there was no

search of Petitioner's vehicle, no seizure

of his personal property for use as evi-

dence, no criminal or civil court proceedings

involving such property or evidence, nor

any conceivable invasion of Petitioner's

privacy. There was merely an effort on

the part of Respondent's agents to prevent

loss or damage to Petitioner in the course

of removing his illegally parked and un-

attended vehicle from a public street.

And, since Petitioner has already conceded

that the police had authority to remove

his car (Petition for Hearing to California

Supreme Court, at p. 4), he can make no

= —_ — . = — ey Ae

[eer 7

——

claim of being forcibly dispossessed of

his property. In light of the above,

and the authorities cited, he has failed

to raise any grounds for relief under the

U. S. Constitution or any provision of

Federal law.

Ker v. California, 374 U. S. 23, 33;

10 L Ed 2d 726; (1963), cited by Petitioner,

would further support Respondent's argument

that the observation of evidence lying in

plain view, (in that case a brick of mari-

juana), is not a search.

REASONS WHY WRIT SHOULD BE DENIED

While Respondent has no quarrel with

the authority of Petitioner's cases dealing

with the suppression of “illegally obtained"

evidence in criminal prosecutions, we would

emphasize that none of the conclusions he

draws from those cases has any relevance or

application to the present facts.

For instance, in Carroll v. U.S., 267 U.S.

132369 L Ed 543 (1925), this Court upheld the

-6- —————

: Se aad 5 ciel —

ne > be be

warrantless search of a motor vehicle

engaged in the interstate transporta-

tion of intoxicating liquor. Preston v.

U. S.; 376 U. S. 364; 11 L Ed 24 777;

(1964), involved a conviction on a

charge of conspiracy to rob a federally

insured bank, where the Court found a

warrantless vehicle search to be un-

reasonable because too remote in time

from petitioner's arrest. However, in

Cooper v. Calif., 386 U. S. 58; 17 L Ed

2d, (1967), the Court affirmed petitioner's

conviction on a charge of possessing and

transporting narcotics, holding that the

warrantless search of a vehicle in police

custody was not unreasonable under the

Fourth Amendment. In Harris v. U. S.;

cited above, the Court ruled that the dis-

covery of the evidence was not the result

of a search, but rather the result of mea-

sures taken to protect a car in police

custody:

"A police regulation of the

Metropolitan Police Devartment

requires the officer who takes

an impounded vehicle in charre to

search the vehicle thoroughly, to

remove all valuables from it, and

to attach to the vehicle a property

tag listing certain information

about the circumstances of the ime

pounding. Pursuant to this regu-

lation, and without a warrant, the

arresting officer proceeded to the

lot, to which petitioner's car had

been towed, in order to search the

vehicle, to place a property tag

on it, roll up the windows, and to

lock the doors ... the discovery

of the card was not the result of

& search of the car, but of a mea-

sure taken to protect the car while

it was in police custody. Nothing

in the Fourth Amendment reouires

the police to obtain a warrant in

ese narrow circumstances.

390 U. S. 235, 236; 19 L Ed

d at p. 1096; emphasis added. )

Likewise Mozetti v. Superior Ct., 4

Cal 3d 699 (1971), cited by Petitioner,

which, although narrowing the scope of

permissible vehicle searches to objects

in plain view, left undisturbed the right

of police to inventory vehicles that were

parked or immobilized. In the words of

Justice Burke's concurring opinion:

LI he SE AL URI

—

"I would emphasize, however, that

our decision in no way interferes with

or impinges upon the customary auth-

ority of the police to inspect and

inventory all items of personal prop-=

erty left in plain sight within an

automobile or other vehicie in police

custody .. . The 'plain sigtt' rule

recognizes that no citizen has a

reasonable expectation of privacy

with respect to unconcealed items

within a vehicle in police custody. . ."

(4 Cal 3d at pp. 712-713).

Chimel v. Calif., 395 U. S. Toe3 23 L

Ed 2d 685, (1969), involved the warrantless

search of a three bedroom house,. including

an attic, garage, small workshop, and vare-

ious drawers pursuant to a burglary arrest.

In this case the Court merely found, under

the circumstances, that, in the absence

of a@ search warrant, there was no consti-

tutional excuse for extending the police

_ search beyond suspect's immediate. area.

The more appropriate rule is that stated

in Chambers v. Maroney, 399 U. S. 42; 26

L Ed 24 419, (1970), where the Court up-

held still another warrantless search of

wie

ne AE Rigel Famer Om

a areca eMac pe ets RIN SII EN wy me t 5

— SATA TRST ETE DARA SS A GT, PRN rs

a vehicle in police custody and ruled that

such a search did not violate petitioner's

Fourth Amendment rights, following his

arrest for probable cause. In an annota-

tion to the Maroney decision appearing

in 26 L Ed 2d 893, ("Velidity, Under Fed-

eral Const., Of Warrantless Search of

Automobile--Supreme Court Cases,") the

commentator wrote:

"The Supreme Court has indi-

cated that if an officer who has

no search warrant has a right to

be where he is and Simply observes

in an automobile objects which

are in 'plain view', the mere

observation of such objects does

not constitute a search at all

and therefore does not fall within

the constitutional proscription

against unreasonable searches and

seizures,"

(26 L Ed 2d at 897, and

citing Harris v. 9.8..

above, )

This rule has been followed consis-

ee ee Ne te

= Ale 1 EERE ME TER CARE EDS ree hea 2S BM bees VRE

tently by both the State and Federal courts,

A EIR oe I

and Petitioner's question--rather than being

"weighty" and "significant"--has long been

-10-

70% RIE NENT TT ME LIAL RS DL EOE Oh PICS

SoS has PLP PLT ERI, IRICEN ENE T2,

Pi ott MEI ROR oe NS :

&@ settled issue of law, nearly universal

in scope and commonplace in its appli-

cation.

CONCLUSION

Petitioner's contention, that enter-

ing em illegally parked vehicle prior to

its removal from a public street is pro-

scribed by the Fourth and Pourteenth

Amendments, is opposed by legal author-

ity and the precedents of this Court; and,

for the reasons set forth hereinabove, it

is respectfully urged that his petition

for @ writ of certiorari be denied.

Respectfully submitted,

FERDINAND P, PALLA, City Attorney

DONALD C, ATKINSON, Division

Deputy City Attorney

Attorneys for Defendants and

Respondents

; -ll-

PROOF OF SERVICE BY MAIL

- Ct. No. 262836

Bo. 1 Civil Bo. 29559

I am a citizen of the United States,

over 18 years of age, a resident of Santa

Clara Couty, and not a party to the within

action. My business address is 151 West

Mission Street, San Jose, California 95110.

I served a copy of the attached ANSWER OP-

POSING PETITION FOR WRIT OF CERTIORARI by

placing said copy in an envelope addressed

as follows:

(1 copy) Jon FP. Gray, Esq.

330 N. Market Street

San Jose, CA 95110

(1 copy) William H. Penaat, Esq.

330 N. Market Street

San Jose, CA 95110

In addition, forty (40) copies of the

above-referred to Petition were sent to:

Supreme Court of the United States

» D. C. 20543

Each envelope was then sealed and postage

fully prepaid thereon, and was on September 25,

we; Geposited in the United States mall a

Jose, California. That there is delivery

service by United States mail at the places

So addressed, or regular communication by

United States mail between the place of

mailing and the places so addressed.

I declare under penalty of perjury that

the foregoing is true and correct.

Dated: September 25,1972, at San Jose, Calif.

Vines Kraan)