Opposition Brief — Newton v. California

BILE COPY | TTT TF

f° 1973

| In The Supreme

Of The United

OcToBER TERM, 1972

| NO. 72-1412

ODAK, JR..CLERE

——

Hurry P. Newton

and Roper? L. Bay.

Petitioners,

VS.

SUPERIOR COURT OF THE

STATE OF CALIFORNIA,

Respondent.

OPPOSITION OF RESPONDENT TO

PETITION FOR WRIT OF CERTIORARI

EVELLE J. YOUNGER,

Attorney General of the State of

California

Epwarpb A. HINzZ, JR.,

Chief Assistant Attorney

General—Criminal Division

WILLIAM E. JAMES,

Assistant Attorney General—

Appeals Section

RoBERT R. GRANUCCI

Deputy Attorney General

W. Eric COLLins

"7 Deputy Attorney General

66S DC Reck fae Dacnandonts &

Teh ha Pe RT ANIL R AR LLL PME IS BMD ORI

Proceedings Below ....... 00sec rere eect eer eetees

BeapinCHO «0. ons cco ccncncccscesecscoescrevenss

Questions Presented .......-. +e seer re reer ert sees

Statement of the Case ...... eee renee reer eres

Statement Of Facts .....-.cecceercrcccercceeseres

APGUMIOE onc cccscrsccenccccenencessoenecscerers

1. THERE IS NO FINAL JUDGMENT.

THE PETITION IS PREMATURE ......

Il. THE SEIZURE OF THE SATCHEL

AND OF THE HAND GUN IF

CONTAINED WAS PROPER |... ---. 5555

Comcbisle on icc ccc th cccesanssneweseasenensceses

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Tables of Authorities Cited

Pages

Cases

Boykin v. Alabama .........-0-0-0eeeee cere r sees 6

395 U.S. 238 (1969)

Chambers v. Moroney .........--52 000+ eeeeeeeeee if

399 9 U.S. 42, 52 (1970)

Chimel v. California ...........--0eeeee ee ee eeees 8.9. 10

395 U.S. 752. 762. 763 (1969)

Coolidge v. New Hampshire ....-...-----e0esee55 8

403 U.S. 443 (1971)

Mills v. Alabama ............--- eee ce ence ee eeees 7

384 U.S. 214. 217 (1966)

Mozzetti v. Superior Court ........---+---+++0005> 11, 12

4 Cal.3d 699, 94 Cal.Rptr. 412, 484 P.2d 84 (1971)

North v. Superior Court .........6-00+2 2 eee eeeees 9

8 Cal.3d 301, __Cal.Rptr. __.___ P.2d____ (1972)

People v. Medina ..........-.--+eeeeeeeeeeereees 4, 5,6

o Cal.3d 484, 99 Cal. Rptr. 630, 492 P.2d 686

(1972)

People v. Superior Court .......--- ++ -0eeee errr ees 5

6 Cal.3d 757, 100 Cal. Rptr. 281, 493 P.2d 1145

(1972)

Preston v. United States .......... 0. eee eee tenes 10, 11

376 U.S. 364 (1964)

Terry V. OWIO .... 6. cece e cece eee eee eeeeeeces 10

392 U.S. 1 (1968)

United States V. Tate ....... cece cece cece eenceees 9.10

209 F.Supp. 762 (D.C. Del. 1962)

2

r

Statutes

California Penal Code:

TES Oe a ae tg wee vio yx: diciehe Dateskoews 7

EA ESCORTS S etl gant ns a 3

i RAIS 1 25

EARS gs ates ea AN he a 4

Leela pel SERS ea itl gn dee cl eh 5

RM AOC TS Ee A Ra A il Bie a i 9

28 United States Code:

A apd cael BORIS LGA A cote a i 4.6

ER FT tee ae Ate ai a ee 1.4

California Statutes. 1967 Chapter 1537. p. 3652. §1. 4

eo

Se Egy

In The Supreme Court

Of The United States

OctropeR TERM, 1972

NO. 72-1412

Hut y P. Newton

and Ropert L. Bay.

Petitioners,

Vs.

SUPERIOR COURT OF THE

Srait or CALtPORNIA,

Respondent.

OPPOSITION OF RESPONDENT TO

PETITION FOR WRIT OF CERTIORARI

PROCEEDINGS BELOW

The judgment that the petitioners seek reviewed was

entered by the appellate department of the Alameda

County Superior Court on January 24. 1973 (Pet., Exh.

3). Certification to the California Court of Appeal was

denied on February 9. 1973 (Pet., Exh. C).

JURISDICTION

The petitioners invoke the jurisdiction of this Court

under title 28. United States Code, section 1257(3).

QUESTIONS PRESENTED

|. Whether the case is properly before this Court.

al —_——

y

2. Whether an officer serving an arrest warrant for,

inter alia, carrying a concealed weapon may remove

from the arrestee/driver’s side of the car a case from the

floor of the car between the arrestee’s feet and, feeling a

bulky object like a weapon, may open the case and

remove the weapon when he has previously been told

the arrestee carried the weapon in just such a case.

STATEMENT OF THE CASE

The petitioners were charged in Municipal Court of

the State of California, Oakland-Piedmont Judicial

District, Alameda County. with violations of California

Penal Code sections 12025 (carrying a weapon con-

cealed) and 12031 (carrying loaded firearms) (Pet.. p. 5).

A hearing to suppress evidence under California Penal

Code section 1538.5 was held on August 17, 1962, and

denied on September 5, 1972 (Pet., Exh. A).

Petitioners appealed this denial of their motion to

the appellate department of the Superior Court of

Alameda County. California. The municipal court order

was affirmed on January 24, 1972. Certification to the

California District Court of Appeal was denied on

February 9, 1973 (Pet.. Exh. C). A petition for stay was

presented to Mr. Justice Douglas on April 20, 1973, and |

denied. The petition for writ of certiorari was filed on |

April 18. 1973. and opposition was requested on May |

31, 1973. |

The case ts set for trial on August 22, 1973.

STATEMENT OF FACTS

On April 27. 1972. warrants were issued for the

arrest of the petitioners for battery (Cal. Pen. Code §

242). and drawing or exhibiting a firearm (Cal. Pen.

Code § 417). Mr. Bay was also charged with carrying a

concealed weapon (Cal. Pen. Code § 12025). These

warrants arose out of attack by the petitioners on Mr.

Alonzo Miller.

Later that day, at about 4:00 p.m., Sergeant

Robert Farkas and other officers were in the vicinity

of 1200 Lakeshore Avenue, Oakland. His purpose

was to make arrests pursuant to these warrants (RT

4)... He saw a brown Mercury Brougham automobile

being driven by Mr. Bay. Next to him was a young

woman. Mr. Newton was seated in the rear seat (RT

7). Sgt. Farkas and Lt. Fugler were standing on the

driver's side of the vehicle (RT 8, 28). They looked

in the automobile and saw among other things a vinyl-

type case, 18” by 12” (RT 15), on the floor of the car

between Mr. Bay's feet (RT 8). Mr. Miller, the

complainant and the victim in the original case, had

told Sergeant Farkas that when he had been pistol-

whipped, the weapon had been removed from a case

of a similar color and shape (RT 14). Sergeant Farkas

ordered Mr. Bay out of the automobile and then

removed the case. As he removed the case. he could

feel that it contained a bulky object inside which felt

like a weapon. He lifted the flap and discovered a

weapon inside (RT 14). It was a hand gun, blue-steel

in color. with brown wooden grips (RT 17). It was a

9 mm. weapon. The clip was loaded. There was a

round in the chamber (RT 18). The sergeant testified

that he looked into the case since he was “‘ninety-

nine and nine-tenths’” sure there was a weapon in

'The respondent has obtained a copy of the reporter's transcript of the

proceedings at the motion to suppress evidence and has lodged this with

the Clerk of the Court

: ee 1

ste

PR

there (RT 33).

ARGUMENT

!

THERE IS NO FINAL JUDGMENT. THE PETITION IS

PREMATURE.

The petitioners invoke the jurisdiction of this Court

under title 28, United States Code, section 1257 (3)

(Pet., p. 2).° That statute provides that the writ of

certiorari is available under circumstances therein

outlined but only to review final judgments or decrees.

28 U.S.C. § 1257. The respondent submits that the

order of the municipal court now sought to be reviewed

is an interlocutory one only. It is not final. The petition

is therefore premature and should be denied.

The petitioners quote California Penal Code section

1538.5(j) (Pet., Exh. E) which provides for an interlocu-

tory appeal in misdemeanor cases from the order of a

municipal court relating to the return of property seized

and the suppression of evidence relating thereto. They

then aver that such an appeal is binding on them (Pet..

p. 3). The quotation is not complete. The last sentence

of the statute at issue omitted from the excerpt quoted

in Exhibit E goes on to read:

““....1f the people prosecute review by appeal or

writ to decision, or any review thereof, in a felony

or misdemeanor case, it shall be binding on them.”

(Cal. Stats. 1967, ch. 1537, p. 3652. § 1)

This sentence clearly makes interlocutory appellate

review binding on the People. but it does not purport to

bind a defendant in a criminal case.

In People v. Medina. 6 Cal.3d 484, 99 Cal. Rptr.

“The petitioner's reliance on 28 U.S.C. 28 1247(3) appears to be but a

ty pographical error.

630, 492 P.2d 686 (1972), the California Supreme Court

held in a felony case that the denial of a motion to

suppress evidence under California Penal Code section

1538.5 and subsequent denial of an appellate writ

without opinion was not a conclusive determination on

the merits of a challenged search and seizure and did

not preclude further review of that issue on appeal from

an ensuing judgment of conviction. The respondent

submits that the petitioners’ Exhibit B does not reflect a

decision on the merits. This ruling by the Appellate

Department of Alameda County Superior Court iS

therefore not binding on them on their appeal from any

judgment of conviction which they may suffer in the

future.

The California Supreme Court went on to state even

if. in the course of denying the petition for an

interlocutory writ. a California appellate court did give

full reasons in a written opinion after full oral argument,

that denial is not res judicata. It pointed out that the

statute permitted the defendant, as opposed to the

People.* to seek further review of the validity of the

search on appeal from the judgment of conviction, a

concept totally at variance with the application of the

doctrine of res judicata. Medina, supra at 492. At most.

the interlocutory opinion of the reviewing appellate

court may be considered the law of the case since the

review is interim appellate review by writ in lieu of

appeal. But. in applying this latter concept the Cali-

fornia Supreme Court has abjured the lower courts to:

‘+... {KJeep in mind that ‘the law of the case,

“The respondent notes that under Penal Code section 1538.5 and the

decisions of the California Supreme Court. a defendant's interests are

protected to a greater extent than are those of the People. People v.

Superior Court. 6 Cal.3d 757, 100 Cal. Rptr. 281, 493 P.2d 1145 (1972).

a

6

which is merely a rule of procedure and does not go

to the power of the court. has been recognized as

harsh, and will not be adhered to where its

application will result in an unjust decision’ [citation

omitted]. People v. Medina, supra, at 492.

The respondent therefore respectfully submits that

contrary to petitioners’ conclusory statement, the ruling

by the appellate department of the Alameda County

Superior Court is not binding on them and there is no

final order of the highest state court ripe for review. 28

U.S.C. § 1257.

But even if it be considered for the sake of argument

that the interlocutory order of the appellate department

be a final one, the case is not ripe for decision by this

Court. It does not follow that because the evidence

complained of is admitted that the petitioners will be

convicted. The evidence against the petitioners has not

been presented to a jury. There are questions of

criminal knowledge, possession and control, and credi-

bility. Very properly, the People are not aware of the

direction which a presumably spirited defense will take,

but it is certain that the petitioners have not yet pleaded

guilty. Were the petitioners to concede that a finding of

their guilt was inevitable and thus bind themselves to

the position that in the event that the complained of

evidence is ruled admissible on the present record, such

a ruling would remove any defense they might have ina

California trial court and that furthermore their right to

appeal subsequent to conviction has been effectively

removed, then perhaps such concessions? would effec-

tively reduce further proceedings in this case to:

‘The constitutional propriety of such concessions would be doubtful

absent’ precautions of the caliber deemed mandatory in Bovdin v.

Alabama. 395 U.S. 238 (1969).

7

[A] few formal gestures leading inexorably

towards a conviction, and then another appeal to

the .. . [California] Court for it formally to repeat its

rejection of . . . [the] constitutional contentions

whereupon the case would wind its weary way

back...as a judgment unquestionably final and

appealable. ...°° Mills v. Alabama, 384 U.S. 214,

217 (1966).

This is, however, not our case. To the contrary,

there is, thus far, merely a pre-trial evidentiary ruling.

though admittedly on a constitutional basis. It could be

that a ruling favorable to the petitioners would make the

People’s burden of proof well nigh impossible to

discharge. but it does not follow that an unfavorable

ruling will necessarily result in a conviction. In effect.

the petitioners seek two bites of the apple. This. the

respondent submits, may well be understandable but it

is hardly supportable. The respondent submits that full

and binding review at this time would result in

‘+. a completely unnecessary waste of iime and

energy in judicial systems already troubled by delays

due to congested dockets... . [footnote omitted]”

Mills v. Alabama, supra at 217, 218.

The respondent therefore submits that because the

ruling sought to be reviewed is interlocutory, as such it

is not properly before this Court.

il

THE SEIZURE OF THE SATCHEL AND OF THE HAND

GUN IT CONTAINED WAS PROPER.

A. It was both incident to an arrest and in protection of

the arresting officers.

The uncontraverted testimony is that the search

took place contemporaneously with the arrest of Mr.

8

Bay and Mr. Newton pursuant to valid arrest warrants

(RT 4). It will be recalled that the vinyl case was in

plain view between petitioner Bay's feet. Moreover, the

satchel was similar in color and shape to the one from

which the gun was taken by Mr. Bay when he pistol-

whipped his victim Mr. Alonzo Miller. Thus the case

itself was known to the officer to be at once evidence of

the crime of which Mr. Bay was charged and also, the

container of a weapon carried by Mr. Bay. In Chimel v,

California, 395 U.S. 752, 762, 763 (1969), this Court

Stated:

**When an arrest is made, it is reasonable for the

arresting officer to search the person arrested to

remove any weapons that the latter might use in

order to resist arrest or effect his escape. Otherwise,

the officers’ safety might well be endangered and the

arrest frustrated. In addition it is entirely reasonable

for the arresting officer to search for and seize any

evidence on the arrestee’s person to prevent its

concealment or destruction. And the area into which

an arrestee might reach in order to grab a weapon or

evidentiary items must. of course, be governed by a

like rule. A gun on a table or in a drawer in front of

one who is arrested can be as dangerous to the

arresting officer as one concealed in the clothing of

the person arrested. There is ample justification

therefore for a search of the arrestee’s person and

the area ‘within his immediate control’-construing

that phrase to mean the area from which he might

gain possession of a weapon or destructible evi-

dence.”

The petitioners insist that “plain view” alone will

not justify a search and that in any event the doctrine

has no application to this case citing Coolidge v. New

Hampshire, 403 U.S. 443 (1971). Though the interpreta-

9

tion of the rule of that case is not without difficulty, see

e.g., North v. Superior Court, 8 Cal.3d 301, —— Cal.

Rptr.___, ___. P.2d ___ (1972), it seems clear that

under any interpretation of its effect, the plain view

doctrine at the very least permits the seizure by an

officer of evidence which he inadvertently discovers

when he is where he has a right to be. /d., plurality

opinion at p. 466. On this point, even the dissenting

opinion in North v. Superior Court, supra at 316,

agrees. This is our case and the officers’ actions were

justified.

The respondent therefore submits that under the

rule of Chimel v. California, supra, the seizure of the

vinyl case was justified.

The petitioners rely on United States v. Tate, 209

F.Supp. 762 (D.C. Del. 1962), for the proposition that

because Mr. Bay had been ordered out of the car,

therefore the seizure of the vinyl case was not justified

as being incident to an arrest. In Tate the defendant had

been arrested for speeding and after offering resistance,

was handcuffed and placed in the rear of a locked police

car. The police officer made a general search of the

automobile and found a shotgun beneath the front seat.

In directing a verdict for the defendant, the Court held

that ‘*The searcher must have in mind some reasonably

specific thing he is looking for and reasonable ground to

believe it is in the place being searched..... ** United

States Vv. Tate, supra at 76S.

In reaching its decision, the district court noted that

it was a speeding arrest, the police officer was not

looking for means by which the crime had been

committed. wasn't looking for weapons and didn’t

recognize the defendant as having a police record.

Indeed the arresting officer was positive that the

10

arrestee could not escape nor get at weapons concealed

in the automobile. Characterizing it as a ‘‘close case,”

the judge therefore ruled it was a general exploratory

search.

Our case is very different. There was an arrest

pursuant to warrant involving the use of a hand gun, the

case was in plain view, it had been used in the original

crime to contain a weapon and was evidence thereof

and the petitioners were in fact known to the arresting

officers to have criminal records. The respondent

submits therefore that Tate is not controlling.

Closely allied to the petitioners ability to escape is

the interest of self-protection for the officers making the

arrest. The respondent notes that even where there is

neither cause to search nor reason to arrest, there exists

the right to protect oneself. Thus, a lesser intrusion

known as a pat search is permissible where the officer

has grounds to believe the detainee is armed. Terry v.

Ohio, 392 U.S. 1 (1968). This interest is present in

arrest situations as well as in ‘‘stop and question’”’

situations. It was recognized in Preston v. United

States, 376 U.S. 364 (1964), and cited with approval and

replied upon in Chimel v. California, supra at 764. It

was minimal in United States v. Tate, supra, because

the arrestee had already been handcuffed and placed in

a police car by the arresting officer.*®

B. There was probable cause to search the case.

The petitioners had been stopped in the automobile.

The arresting officer at the time of the stop approached

the car and saw the vinyl case on the floor between Mr.

*The respondent notes that the petitioners in their cross-examination at

the hearing tried hard albeit unsuccessfully to bring themselves under the

peculiar facts of Tate.

Bay's legs. It was in plain view. Up to this time there

had not been any search. The officer knew that Mr. Bay

and Mr. Newton had assaulted the victim, Mr. Miller,

and that Bay had used a hand gun to pistol-whip Mr.

Miller. He also knew that this hand gun had been taken

by Mr. Bay from a case of similar shape and color. The

respondent therefore submits that it was reasonable for

the officer to believe that this vinyl case was not only

evidence of a crime but also contained a hand gun. One

reasonable inference surely is that Mr. Bay, who it may

be noted was accompanying Mr. Newton once more,

was in some way acting as Mr. Newton's bodyguard

and was carrying a weapon concealed in violation of

California Penal Code section 12025.

But even if there was not then probable cause to

look inside the case the moment it was first seen by the

arresting officer, there was certainly cause to search

when the case was picked up. The officer could feel a

bulky weapon-like object in it. In his own words, he

was ninety-nine and nine-tenths sure it Was a weapon.

The cases relied pon by petitioners are readily

distinguishable. In Press n V. United States, 376 U.S.

364 (1964), it was a/ater search not incident to an arrest

which was condemned because though there was

initially cause to arrest there was not subsequently

probable cause to search. Of course. if there is probable

cause. a search of an automobile appears to be no

longer necessarily detective if the automobile is taken

from the point of stop to another and more convenient

place for the actual search. Chambers v. Moroney, 399

U.S. 42. $2 (1970). There is no such movement in our

case. The California case of Moczzetti v. Superior

Court. 4 Cal.3d 699. 94 Cal. Rptr. 412, 484 P.2d 84

(1971). on which appellant also relies concerns itself to

Ee.

12

an inventory listing of the contents of an impounded

automobile and holds that sealed containers or compart.

ments may not be entered in the course of such

inventory absent cause. Such an impound and search is

not at issue in our case. But even under Mozzetti if the

impounding officer could properly lift up the container

and then, because of what he felt, reasonably come to

the conclusion that it contained contraband, then such

contraband may be seized.

The petitioners appear to complain that because the

officer was told on April 21, 1972, of the existence of

the vinyl case and that Mr. Bay had taken the pistol

from it. the officer should have obtained a search

warrant to search the automobile (Pet., p. 11). The

respondent notes that we are not faced with a general

search of an automobile but with a search of a case.

The officer had no pre-warning that the arrest would

take place in an automobile. According to the petition

(p. 11), it appears that the officers were waiting to serve

the warrant in the vicinity of Mr. Newton's residence

and. to quote the petitioners, **.... The fact that the

arrest occurred while the petitioners were in the vehicle

is entirely fortuitous... ."° (Pet., p. 11). The respon-

dent therefore submits that petitioners’ point is not well

taken. On these facts, no search warrant was required.

CONCLUSION

The petition is premature because it attempts to

seek review of an interlocutory judgment and not a final

one.

Both the vinyl case and loaded gun were evidence of

the original crime and seized incidental to an arrest in

the automobile. In any event there was probable cause

to search the case once it Was seen in plain view.

13

We therefore submit that the petition for certiorari

be denied.

DATED: June 25th, 1973.

EvetLe J. YOUNGER,

Attorney General of the State of

California

Epwarp A. HINzZ, JrR.,

Chief Assistant Attorney

General—Criminal Division

WILLIAM E. JAMES,

Assistant Attorney General—

Appeals Section

ROBERT R. GRANUCCI

Deputy Attorney General

W. Eric COLLINS

Deputy Attorney General

Attorneys for Respondents