Opposition Brief — Combs v. United States

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Gn the Supreme Gourt of the United States

OcToBER TERM, 1972

No. 72-1085

EvisHA CoMBs, PETITIONER

v.

UNITED StaTes OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

Petitioner contends that a search warrant issued

for the search of his father’s premises, specifically

including the house and all outbuildings and vehicles

and any and all adjacent properties used by the

father, was insufficient to cover the search of peti-

tioner’s Cadillac parked on a lot less than 75 feet

from his father’s residence.

Petitioner was charged in the United States District

Court for the Eastern District of Kentucky with

having illegally possessed a sawed-off shotgun; with

the illegal possession of a firearm after being con-

vieted of a felony; with having received, concealed,

and stored stolen firearms which had been transported

in interstate commerce, knowing them to have been

stolen ; and with having knowingly received, concealed,

(1)

eee Pu ok Pe te tae a eee ae

rl ower

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and stored stolen goods and merchandise valued in

excess of $5,000, in violation of 26 U.S.C. 5861(¢) and

(d), of 18 U.S.C. App. 1202(a) and 18 U.S.C. 922())

and 2315."

Prior to trial, petitioner moved to suppress evi-

dence seized in a search, pursuant to a warrant, of

the house of his father, Pearl Combs, and of peti-

tioner’s Cadillac parked nearby. The trial court, after

a hearing, overruled the motion with regard to the

search of the house but sustained the motion with

regard to the car. The government appealed pursuant

to 18 U.S.C. 3731, and the court of appeals reversed

(Pet. App. 22-25).?

1. On October 13, 1970, pursuant to a request by

the Newport, Kentucky, Police Department, the police

chief of the city of Hazard, Kentucky, and three other

officers went to the home of Pearl Combs to arrest

his son, Raymond, for whom there was an outstand-

ing arrest warrant (Tr. 19-20). When the officers

arrived, Raymond, who was on the porch, went into

the house. The officers went around the house and

met Raymond’s brother, Lester, who told them that

Raymond was inside (Tr. 24-26, 146-149). Without

objection, the officers entered the house to look for

* Another case involving the same petitioner was before the

Court last term (408 U.S. 224). There the judgment affirming

petitioner's conviction for possession of stolen whiskey was

vacated and the case remanded for consideration of petitioner's

standing to challenge the search and seizure of the whiskey.

We are advised that the district court held that petitioner

had no such standing, and his appeal is again before the Sixth

Circuit.

? Pet. App. refers to petitioner's appendix; Tr. refers to

transcript of the proceeding at the hearing on the motion to

suppress.

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Raymond ; however, he had jumped off the porch and

tled the scene. While inside the house the officers saw

a large quantity of firearms and ammunition (Tr.

28-31). At the scene the officers also saw a Cadillac

automobile in a parking area nearest the house. It

had the spare tire in the back seat, was sitting low

in the rear and bore a license tag from Campbell

County, Kentucky, the county where Raymond lived

(Tr. 85-86, 115).

The officers reported to the Newport police what

had happened and found out that both Pearl Combs

and petitioner had been previously convicted of a

felony (Tr. 98-99, 114-115). Thereafter, the Hazard

Police Chief obtained a search warrant upon an

affidavit before a United States Commissioner au-

thorizmg the search of Pearl Combs’ house and

premises, specifically including any and all out-build-

ings and vehicles found thereon. It also authorized

the search of any adjacent properties used by Pearl

Combs (Pet. App. 27-29). Armed with the search

warrant, the police returned to the house, conducted a

search, and seized forty-eight firearms and more than

500 rounds of ammunition (see Tr. 107-108: and In-

ventory of Firearms seized from residence of Pearl

Combs). The officers then proceeded to the parking

location adjacent to the Combs residence. Although it

was stated by a member of the Combs family that the

parking area belonged to a neighbor, it was the loea-

tio where the family generally parked their cars

(Tr. 146-148). The Police Chief said he did not know

who owned the lot but it was “right there close to

the house where the whole family parks their cars”

PONT TW MEINE 1 RRR AI TE Ye bey —

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(Tr. 101). At the time three family vehicles (inelud-

ing petitioner’s Cadillac) were found on the lot and

searched. The officers did not search any vehicle that

did not belong to the Combs family (Tr. 134).

When the officers went to the Cadillac, it could be

seen that the spare tire was still in the back seat and

the rear remained low (Tr. 131-132). Petitioner was

present at the time of the search of his car. He gave

the officers the key to the ignition but denied that

he had a key to the trunk. Petitioner was then told

that the trunk would have to be forced open; when

the police began to do so, petitioner slipped away,

not to be seen again that day (Tr. 102-103, 132-133).

When the trunk was opened a large quantity of

firearms and other merchandise was observed. Some

were taken out and then replaced. Because it was

dark, the automobile was driven to Hazard, where

the officers could see, and an inventory was taken of

the goods in the trunk (Tr. 102-106). A sawed-off

shotgun, twenty-seven other firearms, a quantity of

ammunition, typewriters, radios, cameras and blankets

were found and seized (Tr. 126; and see Inventory of

Firearms seized from petitioner’s automobile). Later,

upon a further search, several diamond rings were

also found in the trunk (Tr. 109-110). The vehicle

has since been the subject of a forfeiture action under

26 U.S.C. 7301, 7302, 7321 (Tr. 127).

2. Petitioner concedes here that ‘‘the warrant is

admittedly valid’? (Pet. 11), and that pursuant to

the warrant it was ‘‘constitutionally proper for the

searching officers to search any motor vehicle situated

on the premises” (Pet. 14). Petitioner, however,

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alleges that the search of petitioner’s vehicle was

improper because, though parked in an adjacent area

“close to the house” (Tr. 101), it was on property

owned by another. We submit that the court of ap-

peals properly rejected the technical challenge to the

or

’

search of an automobile belonging to a convicted :

felon, parked in an area adjacent to his family’s house, ;

where the law enforcement officers had just located i

an “arsenal’’ of weapons (Pet. App. 25). E

a. The record supports the holding of the court of :

appeals that the warrant sufficiently covered the t

search of the car and that the information in the ;

affidavit supplied to the Commissioner was adequate §

to support its breadth. The affidavit for the search

warrant clearly stated that the affiant was positive

that there were illegal firearms and ammunition con-

cealed upon the premises. The premises were fully

described as being the dwelling of Pearl Combs and

“all outbuildings and vehicles thereon. * * * including

any and all adjacent properties used by the said Pearl

Combs.” As the court below noted, the arsenal of weap-

ons observed in the house could hardly have been

brought to the remote location where the house was

located by any means other than by automobile; under

these circumstances it was permissible for the Commis-

sioner to infer probable cause to believe that the

vehicles on the premises contained weapons also.

Describing the premises as the dwelling of Pearl

Combs and “all outbuildings and vehicles thereon. * * *

including any and all adjacent properties used by the

said Pearl Combs’’, did not, as petitioner claims, author-

ize a search of the entire neighborhood, nor did it render

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NER ee yt 8 ty TET RAL AE 1 OS eee eee

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the warrant unconstitutionally vague. Affidavits and

warrants are to be interpreted in a common-sense

manner. See United States v. Ventresca, 380 U.S. 102;

United States v. Harris, 403 U.S. 573. Such a descrip-

tion in the affidavit and warrant describes no more

than what is commonly referred to as curtilage (i¢.,

those places which would be included within the scope

of the warrant even if they had not been specifically

described therein), which includes all places in close

proximity to a dwelling necessary and convenient to

the dwelling, and habitually used for family pur-

poses. See, e.g., United States v. Potts, 297 F. 2d 324

(C.A. 6); Fine v. United States, 207 F. 2d 324

(C.A,. 6).

While the lot where petitioner’s Cadillac was found

may not have been owned by Pearl Combs, it was the

nearest parking area to the Combs residence, it was

regularly used by the Combs family for the purpose

of parking their vehicles, and three family cars were

parked there at the time of the search. In these cir-

cumstances the lot as well as petitioner’s car were,

for practical purposes, part of the premises subject

to search under the warrant.

b. In any event, petitioner does not deny that there

was probable cause to believe his car contained contra-

band at the time it was searched.’ Thus, whether or

2The fact that the officers discovered the multitude of

weapons in Combs” house, the discovery of the spare tire in

the back seat, the low rear end of the automobile, the assertion

of Elisha Combs that he did not have the trunk key to an

almost new Cadillac, and the disappearance of Elisha Combs

at the time the police asserted they were going to force open

the trunk, presented sufficient probable cause for the officers to

search the vehicle at that time.

SS ee RE

ENS RE 3 a

not the warrant was broad enough to cover the car,

the officers acted reasonably in searching the car

promptly and impounding it for an inventory. See

Chambers Vv. Maroney, 399 U.S. 42, 46-52. Unlike the

situation in Coolidge v. New Hampshire, 403 U.S.

443, where four Justices concluded that a warrant

should have been secured before the automobile was

searched, the car in this case had not been immobilized

by arresting its owner and by preventing any one

else from driving it away. Thus, under the traditional

exception to the warrant requirement, the search

here, based on ample probable cause, was valid irre-

spective of the scope of the warrant for Pearl Combs’

premises.

It is therefore respectfully submitted that the peti-

tion for a writ of certiorari should be denied.

ERwin N. Griswo.p,

Solicitor General.

Marcu 1973.

US. GOVERNMENT PRINTING OFFICE: 1973

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