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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for a Writ of Certiorari
- **Published:** January 1, 1972
- **Citation:** 409 U.S. 984

## Text

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
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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)

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1302%3A1. Public record. Not legal advice.