Petition for Writ of Certiorari — Bassett v. Alabama

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WACRNEL ROOK ney

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1973

McARTHUR BASSETT,

Petitioner,

VS.

STATE OF ALABAMA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

To Alabama Supreme Court

RICHARD S. MANLEY

P. 0. Drawer U

Demopolis, Alabama 36732

T. W. THAGARD, JR.

600 Bell Building

Montgomery, Alabama 36104

Attorneys for Petitioner

Of Counsel

SMITH, BOWMAN, THAGARD,

CROOK & CULPEPPER

600 Bell Building

Montgomery, Alabama 36104

St. Louis Law Printing Co., Inc., 812 Olive Street 63101 314-231-4477

aol

INDEX

Page

PYAYET ...--cccccccccceccccccccssccccccccccccscens 1

Opinions below ...........5.- eee ee ee eee e ee eeeeees 2

EE cs nea a tumann eee tap eCenen eee ales 2

Questiem presented .. 2... - ccc cvccccerscensescsocss 2

i i leans aka ce ek kee 3

Reasons for granting the writ ....................-. 6

ne i ete ceri mes VaR R eR’ 10

Appendix A—Opinion of the Alabama Supreme Court A-1

Appendix B—Alabama Supreme Court order remand-

ing case to Court of Criminal Appeals ............ A-6

Appendix C—Opinion of Alabama Court of Criminal

NN aie eters panera et al eee aeons ache a acke ele A-7

Appendix D—Entry of Judgment by Alabama Court

Se I oe ceed wincekackcdvduseasaos A-19

Cases Cited

Chambers v. Maroney, 399 U.S. 42, 26 L. Ed. 2d 419, 90

ee a Sool aise aun 5, 8, 9, 10

Coolidge v. New Hampshire, 403 U.S. 443, 30 L. Ed. 2d

PE en kadubes uaepenncudeuele 6, 7,10

Preston v. United States, 376 U.S. 364, 84 S. Ct. 881, 11

L. Ed. 2d 777 (1964)

ii

Statutes Cited

Oe SE as es buaccahenaeesatceeuencus. 2

Constitution of the United States:

ey eS oi le is ean s 6a e ke bee 2

I oc Vacawaedees sas sapecny 2

Texts Cited

47 Notre Dame Lawyer 668 (1972) .................. g

Oe Be, Ba ee CPE oh caceccicescccskesss 9

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1973

Pi viakinwnes

McARTHUR BASSETT,

Petitioner,

VS.

STATE OF ALABAMA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

To Alabama Supreme Court

To the Honorable the Chief Justice and the Associate

Justices of the Supreme Court of the United States

of America

McArthur Bassett (hereinafter ‘‘Petitioner’’) prays that

a writ of certiorari be issued to the Supreme Court of

Alabama to review a decision of that Court, reversing a

decision of the Alabama Court of Criminal Appeals and

ordering the reinstatement of the Petitioner’s conviction

in the Cireuit Court of Coffee County, Alabama.

i

OPINIONS BELOW

The opinion of the Supreme Court of Alabama is re-

ported at 275 So. 2d 720 and is printed as Appendix A to

this Petition. The opinion of the Alabama Court of Crim.

inal Appeals is reported at 275 So. 2d 713 and is printed as

Appendix C to this Petition.

The order of execution of judgment, entered by the

Alabama Court of Criminal Appeals on March 20, 1973, is

reported at 275 So. 2d 724 and is printed as Appendix D

to this Petition.

JURISDICTION

The jurisdiction of this Court is invoked under 28

U.S.C. § 1257(3).

LAWS INVOLVED

This case involves the Fourth and Fourteenth Amend-

ments to the Constitution of the United States.

QUESTION PRESENTED

Whether the Fourth and Fourteenth Amendments will

permit a conviction based on evidence which was seized

during the search of Petitioner’s automobile under the

following circumstances:

1. The automobile was thoroughly searched on the high-

way where it was originally stopped.

2. Neither Petitioner’s automobile nor its contents were

seized at this juncture.

3. With Petitioner’s consent, a police officer drove his

automobile to the police station.

pie, ee

4. At the police station, some two hours after Petition-

er’s automobile was stopped, it was subjected to a second

search during which the evidence in question was seized.

5. The second search was conducted pursuant to an

illegal warrant.

6. At the time of the second search, Petitioner was

securely in jail.?

STATEMENT OF THE CASE

Petitioner was convicted in the Cireuit Court of Coffee

County, Alabama, for transporting or possessing lysergic

acid dielhylaminde (hereinafter ‘*LSD"’) and sentenced to

aterm of eight years in the penitentiary,

The following chronology of events preceded the seizure

of the LSD which gave rise to Petitioner’s conviction. On

the night of July 16, 1970, while on a trip which carried

them through Alabama, Petitioner and a companion were

traveling in Petitioner’s ear on the highway in Enterprise,

Alabama, which is a short distance from Dothan, where an

armed robbery had oceurred earlier in the evening. Shortly

after midnight, Petitioner’s car was stopped by the Enter-

' There was also a substantial “probable cause” issue in this

case. When this case was before Alabama Court of Criminal Ap-

peals, Judge Cates noted, in a concurring opinion, that he would

reverse Petitioner’s conviction because there was a lack of “prob-

‘ible cause”. App. C, p. A-17, 275 So, 2d at 720. The Court of Crim-

inal Appeals decided the “probable cause” issue against the Pe-

titioner, but decided the case for him on the basis of the issue

how presented by this petition. The “probable cause” issue never

reached the Alabama Supreme Court, because the State of Ala-

bama naturally did not. raise this issue on appeal and the at-

torney representing the Petitioner at that time did not file a

cross-appeal on this issue. When this case was before the Alabama

Supreme Court, Justice Jones noted his opinion that there was

a lack of “probable cause”, although this issue was not before

the Court. App. A, p. A-5, 275 So. 2d at 723. The issue of “prob-

able cause” is not raised in this Petition solely because we as-

sume ‘hat we cannot raise any issue now which was not properly

brought to the attention of the Alabama Supreme Court.

way ees

prise City Police who (according to the Alabama Criminal

Court of Appeals and the Alabama Supreme Court) had

‘*probable cause"’ for thinking that Petitioner and his com.

panion answered the description of the men who had com-

mitted the Dothan robbery. On the highway where Peti-

tioner was stopped, the police conducted a thorough search

of his car, including the glove compartment, the console

between the bucket seats, and the trunk. Although the

officers found no weapons, they found ‘‘quite a bit of

money’’ on Petitioner’s person and observed in the car

plastic bags containing yellow tablets and a substance sus.

pected of being marijuana. At this time, the Petitioner

and his companion were not arrested; and no seizure was

made of the Petitioner’s car or any of its contents (App.

C, p. A-8, A-9, 275 So. 2d at 715, 716). The Petitioner and

his companion voluntarily agreed to go in a police car to the

Enterprise Police Station to await the arrival of the Dothan

robbery victim who would identify them. Petitioner’s

car was driven to the police station by a policeman. Al-

though no charges had been placed against Petitioner and

his companion at this time, they were placed in a cell, at

their own request, so they could get some rest (App. C, p.

A-8, 275 So. 2d at 715, 716). At about 3:00 A.M., while Pe-

titioner and his companion were resting in a cell, Petition-

er’s car was searched for a second time, but this time pur-

suant to a search warrant which the state later admitted

was defective? (App. C, p. A-8, 275 So. 2d at 716). During

the course of this second search, a policeman and a state nar-

eotics agent uncovered and seized the LSD on which Peti-

tioner’s conviction was based. A short time later, the

Dothan robbery victim arrived and concluded that Peti-

tioner and his companion were not the robbers. Thereafter,

Petitioner was arrested on the drug charges in question.

* The record does not show why this warrant was defective

and since Petitioner was not represented by his present attorneys

in the proceedings below, we do not have any personal knowledge

of why the warrant was deemed defective.

—

Prior to his conviction, Petitioner’s attorney filed timely

motions to suppress the evidence and to quash the indict-

ment (App. C, p. A-9, 275 So. 2d at 715), thereby raising the

issue now presented to this Court in this Petition for Cer-

tiorari, After hearing, these motions were denied and Peti-

tioner Was convicted at a trial at which the LSD in ques-

tion was admitted into evidence.

Petitioner's conviction was reversed by the Alabama

Court of Criminal Appeals on the ground that the LSD

in question was not admissible evidence sinee it had been

uneovered and seized, without a valid seareh warrant, dur-

ing the course of a search of Petitioner's automobile made

at a time, i.c., several hours after Petitioner had voluntarily

submitted to the custody of the police, aud ata place, i.e.,

the police station, when ‘exigent cirenmstances"’ had long

since passed, The Alabama Court of Criminal Appeals

predicated its holding on Preston vy. United States, 376

US. 364, 54S. Ct. 881, 11 L. Ed. 2d 777 (1964) (App. C

pp. A-16, A-17, 275 So. 2d at 719).

,

Subsequently, the Alabama Supreme Court reversed the

Criminal Court of Appeals and ordered the reinstatement

of Petitioner’s conviction. In large part, the Alabama Su-

preme Court predicated its reversal on this Court's decision

in Chambers v. Maroney, 399 U.S. 42, 26 L. Ed. 2d 419, 90

S. C(t. 1975 (1970) which, in the Alabama Court’s view,

“presented ... a factual situation .. . strikingly similar’’

to that of the ease under consideration (App. A, pp. A-2,

\-3, 275 So. 2d at 722). Apparently concluding that Cham.

bers abolished the requirement of ‘‘exigent eireumstances”’

fora warrantless search conducted at the police station, the

Alabama Supreme Court assumed that the search was legal

and, thereby, avoided a consideration of the issue raised

by this Petition. Instead, the Court addressed itself to

the question whether officers, when having ‘*probable

cause”’ to look for one kind of property, can seize property

on

‘‘relating to an entirely different offense’? (App. A, p. A-1,

275 So. 2d at 721).

On March 29, 1973, acting pursuant to the Alabama Sov.

preme Court’s mandate, the Criminal Court of Appeals en-

tered a judgment affirming the trial Court’s conviction of

the Petitioner (App. D, p. A-19).

REASONS FOR GRANTING THE WRIT

The Petitioner seeks a Writ of Certiorari because the

Alabama Supreme Court’s determination of the instant

ease is not in accord with the prevailing decisions of this

Court.

This Court has long held that, under the Fourth amend-

ment, a search for seizure conducted without a valid war-

rant is ‘‘unreasonable’’ unless ‘‘the exigencies of the situa-

tion made that course imperative’’ Coolidge v. New

Hampshire, 403 U.S. 443, 455, 30 L. Ed. 2d 564, 576 (1971).

‘*Exigent cireumstances’’ are those which demand imme.

diate police action because, as in the case of an automobile

which can be moved out of the jurisdiction, the opportu-

nity for a search is ‘‘fleeting’’. Under such circumstances,

the officer who waits to obtain a warrant engages in an

exercise in futility because, when he gets around to mak-

ing his search, he will find that the evidence has been

destroyed or moved. In the instant case, the record makes

clear that there were no such ‘‘exigent circumstances’ pre-

vailing at the time when the Enterprise Police, acting on

the basis of an illegal warrant, seized the narcotics in

question from Petitioner’s automobile while it was lo-

cated at the police station. For many reasons, this is simply

not a case for the doctrine of ‘‘exigent circumstances”.

First, the Enteprise Police did in fact secure « warrant

before they conducted the search in question. This is not

a case where the failure to secure a warrant ean be ex-

plained away on the basis of a lack of time; rather, this

js a case Where, having ample time, the police secured an

illegal warrant. Thus, the doctrine of ‘exigent cireum-

stances’’ ix not applicable to the instant case because that

doctrine, as we understand it, was never intended to ex-

euse police from following procedures prescribed by the

Constitution where, as here, time was no problem. Certainly,

the Fourth Amendment contemplates that, if time permits,

a policeman must secure a valid warrant. Otherwise, why

have any warrant requirement at all?

Second, several hours before the search in question, the

police thoroughly searched Petitioner's ear on the high-

way at the place where it was initially stopped. At that

time, the officers saw what they suspected as being illegal

nareotics. They had the benefit of this suspicion when

they later conducted the search at the police station and,

for this reason, they were assisted in this search by a

state narcotics agent. This strong suspicion, taken in con-

junction with the fact that the Enterprise Police had ample

time to go before a magistrate, makes even more inex-

cusable their failure to secure a valid warrant specifying

the drugs which they ultimately seized. In short, the of-

fiecers had ‘tadvance knowledge of the existence and

location of the [narcotics in question], [they had an] in-

tention to seize [them], and [they had] the ample oppor-

tunity for obtaining a warrant."* Coolidge v. New Hamp-

shire, 403 U.S. at 482, 29 L. Ed. 2d at 592. Accordingly,

the police cannot plead as an ‘texigent circumstance’’ the

“inconvenience of procuring a warrant to cover an inad-

vertent discovery". Coolidge v. New Hampshire, 403 U.S.

at 470, 29 L. Ed. 2d at 585.

Third, at the time of the search at the police station,

there was no danger, with the Petitioner in jail, that he

could use weapons hidden in his automobile. Preston v.

United States, supra. In this connection, the initial search

of the automobile while it was still on the highway had

revealed that it did not contain any weapons anyway.

a

Fourth, it was impossible for the Petitioner, who was in

jail, to destroy evidence which was located in his automo.

bile. Preston v. United States, supra.

Fifth, there was no ‘‘ danger that [Petitioner’s] car would

be moved out of the locality of the jurisdiction,’’ Preston

v. United States, 376 U.S. at 368, 11 L. Ed. 2d at 781.

Hence, we see, the Alabama Court of Criminal Appeals

correctly applied Preston to the case sub judice. However,

in placing its total reliance on Preston, that Court failed to

point out what the record in the instant case makes clear:

the Petitioner has a stronger case than the accused did in

Preston. In the instant case, there are even more reasons

than there were in Preston militating against the applica-

tion of the doctrine of ‘‘exigent cireumstances’”’.

Chambers v. Maroney, supra, on which the Alabama Sn-

preme Court relied for its decision, is not apposite to the

case under consideration for several reasons: (i) In the

instant case, the police officers conducted their initial search

on the highway, making clear that it was ‘‘safe’’ and

‘*practicable’’ to conduct a search at that juncture, whereas,

in Chambers, the officers deferred their initial search to

the police station since they were dealing with four sus-

pects ‘‘in a dark parking lot in the middle of the night”

in a situation which made it ‘‘unsafe’’ or ‘‘impracticable”

to remain long at the scene of arrest. Chambers v. Ma-

roney, 399 U.S. at 52, 26 L. Ed. 2d at 429, f.n. 10; (ii) in

the instant case, the Petitioner’s automobile had not been

seized at the time when it was searched at the police sta-

tion, whereas, in Chambers, the arresting officers seized the

suspects vehicle at the time of arrest on the highway, so

that it could later be searched at the police station under

‘‘safer’’ conditions; and (iii) in the instant case, the Court

is dealing with a search and seizure conducted pursuant to

an illegal warrant, which the officers had ample time to

secure, whereas, in Chambers, the Court was dealing with

—

the failure to obtain a warrant for the search of a ve-

hicle which had been seized earlier when ‘‘exigent cireum-

stances’’ still prevailed.

Finally, this case is important to the efficient adminis-

tration of criminal justice because it affords this Court an

opportunity to take another look at Chambers which, prior

to being circumscribed by Coolidge, seemed to cast consid-

erable doubt on the continuing vitality of Preston. Cham-

bers has been the source of much confusion, which is exem-

plified by the divergent treatment accorded the instant

ease in the Alabama Courts below. This confusion has in-

evitably led to an increase in the workload of the lower

courts, both state and federal; in this connection, Shep-

pard’s Citations reveals that Chambers, since it was decided

in 1971, has been discussed in over 200 opinions in the

lower appellate courts. Chambers has also caused much

consternation among commentators who, in the course of

their criticism, have taken varying positions with respect

to its meaning, viz: (i) Chambers cannot be reconciled with

Preston which, as a practical matter, it overruled; (ii)

Chambers has abolished altogether the requirement of ‘‘ex-

igent circumstances’ for the warrantless searches of auto-

mobiles stopped on the highway, irrespective of when and

where the search is conducted; and (iii) Chambers is based

on ‘‘hootstrap’’ logic to the extent that it employs ‘‘exi-

gent cireumstances’’ which might have existed on the high-

way to justify a subsequent search at the police station long

after all ‘‘exigent cireumstances’’ are gone. See, e.g., 46

Notre Dame Lawyer 610 (1971): 47 Notre Dame Lawyer

f68 (1972); and 55 Minn. L. Rev. 1011, 1026 (1971). Cer-

tainly, some of this criticism contains merit. Nevertheless,

we do not urge this Court to consider the case sub judice

for the purpose of overruling Chambers, because, first, we

do not think it necessary for a proper disposition of the

case at hand and, second, we are mindful of this Court’s

assertion in Coolidge that it did not intend to seek clarity

— =

in this area of the law by the ‘‘overruling of recently de-

cided cases’’. 403 U.S. at 483, 29 L. Ed 2d at 564. Rather,

we urge this Court to give consideration to the instant case

so that it can continue the process of refinement on Cham.

bers which was commenced in Coolidge. There is an ob-

vious need for Chambers in the factual situation, presented

in that ease, where the search of an automobile is deferred

to the police station because conditions prevailing on the

highway made it ‘‘unsafe’’ for officers to undertake any

more than ‘‘seizure’’ at that time and place. By refining

its language, this Court can preserve for Chambers its orig-

inal meaning and yet make manifest that Chambers was

never intended to reach those situations, prevailing in the

instant case, where it was not ‘‘dangerous’’ or ‘‘imprae-

tical’? to make a search on the highway; or where the

automobile in question was not seized on the highway so

that it could later be searched at the police station; or

where the search in question was conducted pursuant to

an illegal warrant.

CONCLUSION

Wherefore, Petitioner respectfully submits that this

Court should grant the Writ of Certiorari prayed for herein.

‘RICHARD S. MANLEY

P. O. Drawer U

Demopolis, Alabama 36732

T. W. THAGARD, JR.

600 Bell Building

Montgomery, Alabama 36104

Of Counsel

SMITH, BOWMAN, THAGARD,

CROOK & CULPEPPER

600 Bell Building

Montgomery, Alabama 36104

l

. Ty ath NN IAT AR LEE BUT OH ATTN AI

ake ee Aa oe ae aia

— jj] —

Certificate of Service

I hereby certify that on this date I served a copy of the

foregoing Petition for Writ of Certiorari upon the Hon.

William Baxley, Attorney General of the State of Alabama,

by placing a copy thereof in the United States Mail, post-

age prepaid and properly addressed to him on this the . a:

day of June, 1973.

TRS Be 62 68 Wit eee 6 Oe & € eee &

“Of Counsel

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APPENDIX

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APPENDIX ‘‘A”’

Opinion of the Alabama Supreme Court

The State of A\labama—Judicial Department

The Supreme Court of Alabama

October Term 1972-75

Ex Parte: State of Alabama

ex rel. Attorney General

Petition for Writ of Certiorari to the Court of

Criminal Appeals

S.C. 146 (In re: MeArthur Bassett

v.

State of Alabama)

Maddox, Justice

The Court of Criminal Appeals, with one judge dis-

senting, reversed the convietion of MeArthur Bassett for

possession of illicit drugs and remanded the cause to the

circuit court. On petition by the State of Alabama for

certiorari, We granted the writ in order to review the

opinion and judgment of the Court of Criminal Appeals, on

the issue framed by that court as follows:

‘Where officers have probable cause to conduct a

warrantless search not incident to an arrest, may prop-

erty relating to an entirely different offense be seized,

Where possession of that property alone constitutes a

crime ?’’

r ' tO ae P

The Court of Criminal Appeals answered the question

in the negative, apparently on the ground that since the

defendant was not arrested on the drug charge at the time

of the search,’ the search was not conducted incident to

the arrest on the drug charge, and even admitting that

the officers had probable cause to stop and search the ve.

hicle in which the drugs were located in connection with

a robbery investigation, they could not seize the illicit

drugs which turned up in the course of this search.

After a review of the law applicable to warrantless

searches of automobiles, we are of the opinion that the

judgment of the Court of Criminal Appeals is due to be

reversed and remanded.

The facts of this case are strikingly similar to the factual

situation presented in Chambers v. Maroney, 399 U.S. 42,

26 L. Ed. 2d 419, 90 S. Ct. 1975 (1970). There, Chambers

was one of four men arrested after the car in which they

were riding was stopped by police shortly after an armed

robbery of a service station. The arrests were made upon

information given by the service station attendant and

bystanders. The car was taken to the police station and

searched without a warrant. The search disclosed two re-

volvers and cards bearing the name of an attendant at

another service station who had been robbed at gunpoint

a week earlier,

The Supreme Court, in Chambers v. Maroney, supra,

found that the search of the car at the station house in

that case was not unreasonable, and evidence obtained in

the search was permitted to be introduced at the trial.

Admittedly, all the guiding principles which apply to

warrantless searches of automobiles are difficult to under-

stand. The fact that there were three separate views ex-

pressed on the issue here by the Court of Criminal Ap-

peals seems to indicate the difficulty which Fourth Amend-

1 A search was conducted on the streets when the car was

stopped and later at the police station. A search warrant, ad-

mittedly invalid, was obtained to conduct the search at the

station.

pay ese

ment questions pose. But a few general principles seem

to be fairly well established.

(1) Questions involving searches of motor cars or other

things readily moved cannot be treated as questions aris-

ing out of searches of fixed structures like houses. Preston

v. United States, 376 U.S. 364, 11 L. Ed. 2d 777, 84S. Ct.

841 (1964); Chambers v. Maroney, 399 U.S. 42, 26 L. Ed.

2d 419, 90S. Ct. 1975 (1970).

(2) There is a limitation of time-place upon the justi-

fiable warrantless search incident to an arrest which is ap-

plicable in motor vehicle situations. Preston, supra; Cham-

bers, supra; Coolidge v. New Hampshire, 403 U.S. 443, 29

L. Ed. 2d 564, 91 S, Ct. 2022 (1971).

(3) In some situations the permissible objeet of the

search is limited to weapons or the fruits or implements of

the crime which may be concealed or destroyed. Cf. Preston,

supra; Chimel v, California, 395 U.S. 752, 23 L. Ed. 2d 685,

80S. Ct. 2084 (1969).

The Court of Criminal Appeals admits that the officers

had probable cause to search the automobile for fruits of

the Dothan robbery, both on the streets of Enterprise and

at the police station.2. Two members of the court decided,

however, that even though the illegal drugs were discovered

during this admittedly valid warrantless search, the sei-

zure was nevertheless invalid. The other member concurred

that the cause should be reversed,

The opinion of two of the judges quotes from Harris v.

United States, 331 U.S. 145, 91 L. Ed. 1399, 67 S. Ct. 1098

(1947), as follows:

* We recognize that Judge Cates apparently does not agree

that there was probable cause to conduct any search. We do not

address ourselves to this point since it appears that a majority

of the Court of Criminal Appeals thought probable cause existed

to search,

ei nae

‘¢ |. If entry upon the premises be authorized and

the search which follows be valid, there is nothing iy

the Fourth Amendment which inhibits the seizure by

law-enforcement agents of government property the

possession of which is a crime, even though the officers

are not aware that such property is on the premises

when the search is initiated.’’

The two judges also cite Abel v. United States, 362 US,

217, 4 L. Ed. 2d 668, 80 S. Ct. 683 (1960), which holds that

when an article subject to lawful seizure properly comes

into an officer’s possession in the course of a lawful search

it would be entirely without reason to say that he must re-

turn it because it was not one of the things it was his busi-

ness to look for.

We are aware that Harris, supra, has been overruled, in

part, by Chimel v. California, 395 U.S. 752, 23 L. Ed, 2d

685, 89 S. Ct. 2034 (1969), but we believe the statements

in Harris are still viable to the effect that when an article

subject to lawful seizure properly comes into an officer’s

possession in the course of a lawful search, it would be en-

tirely without reason to say that he must return it because

it was not one of the things it was his business to look for.

As we read Chimel, it only overruled Harris on the permis.

sible scope of a search incident to an arrest. Harris had

permitted a broad area within which a search could be

conducted incident to a lawsuit arrest. Chimel substanti-

ally restricted the ‘‘search ‘ncident to an arrest’’ exception

to the warrant requirement. But, Chimel, as we view it,

did not address the question of the seizure of evidence

during a valid search, whether with or without a warrant.

Consequently, we believe that Harris, and Abel are still

good precedent for the proposition that there is nothing

in the Fourth Amendment which would inhibit the seizure

by law enforcement agents of property, the possession of

which is a crime, even though the officers were not aware

that such property was on the premises when the search

was initiated.

Perey) oe

As we understand the opinion, the Court of Criminal Ap-

peals distinguishes Harris and Abel, saying that in Harris

and Abel there was a valid search warrant and here there

was no warrant. We see no reason to make this distine-

tion between a search with a warrant and a warrantless

search. If the search was lawful, whether with or without

a warrant, then the Harris and Abel rule would apply.

We recognize that every search of an automobile may not

be valid, and we will not attempt to spell out in specific

detail the many facets of the exclusionary rule of evidence

under the Fourth Amendment which has anchored itself in

our jurisprudence, because the rules which determine what

is and is not permissible under the Fourth Amendment are

far from exact and some of the decisions of the Supreme

Court of the United States seem to conflict. But as we un-

derstand the principles which are applicable in fact situa-

tions similar to those present here, we conclude that the

evidence obtained in this case was not inadmissible because

of the method of its seizure. See United States v. LaVallee

(2nd Cir., 1966), 367 F. 2d 351. The judgment of the Court

of Criminal Appeals is due to be reversed and the cause re-

manded to that Court.

REVERSED AND REMANDED

Jones, Justice (Coneurring specially),

I] agree with the majority in holding that the fruits of

the warrantless search of the car made at the station house

are admissible to prove 4 different and independent crime

where such search and seizure is conducted with probable

cause. [I do not wish to be understood as agreeing that

probable cause sufficient to support a warrantless search

exists under the faets of this case. I feel that the otherwise

llysterious absence of arrest of the accused, as well as the

invalid search warrant, is explained by the lack of prob-

able cause. In this respect I agree with the specially con-

curring opinion of Presiding Judge Cates. However, the

limited review by this Court of the Court of Criminal Ap-

peals constrains me to accept the finding of that Court

that there was probable cause in this case,

— )

APPENDIX ‘‘B’”’

Alabama Supreme Court Order Remanding Case

to Court of Criminal Appeals

February 8, 1973

The State of Alabama—Judicial Department

In the Supreme Court of Alabama

October Term 1972-73

SC 146

Ex Parte: State of Alabama, ex rel. Attorney General

Petition for Writ of Certiorari to the Court of Criminal

Appeals

(Re: McArthur Bassett v. State of Alabama)

Whereas on November 9, 1972, a Writ of Certiorari to

the Court of Criminal Appeals was granted in this Court

and the cause was set down for submission pursuant to

Supreme Court Rule 39.

Whereupon, come the parties and the cause being sub-

mitted on briefs and duly examined and understood by the

Court, it is considered that in the proceedings of the Court

of Criminal Appeals there is manifest error.

It Is, Therefore, Ordered and Adjudged that the judg-

ment of the Court of Criminal Appeals be reversed and

annulled, and that the cause be remanded to the Court of

Criminal Appeals for further proceedings in accordance

with the opinion this day rendered by the Supreme Court,

with the costs of this proceeding taxed against the respond-

ent, MeArthur Bassett, for which costs let execution issue.

a

APPENDIX ‘‘c”’

Opinion of Alabama Court of Criminal Appeals

The State of Alabama—Judicial Department

The Alabama Court of Criminal Appeals

October Term, 1971-72

4 Div. 102

MeArthur Bassett

v.

State

Appeal From Coffee Cireuit Court

Tyson, Judge

The indictment charges the appellant with possessing

or transporting marijuana, and also possessing or trans-

porting lysergie acid dielhylaminde (LSD-25), contrary

tothe law. Verdict and judgment of guilty were entered for

possessing or transporting lvsergie acid dielhylaminde,

whieh resulted in a sentence of cight years in the peni-

tentiary.

On the night of July 16, 1970, Officers Baxter and Doty

of the Enterprise Police Department were on duty pa-

trolling the streets of the city in their police cruiser.

About 11:00 p.m., they received an alert over their police

hand radio that an armed robbery had occurred in nearby

Dothan, Alabama. This radio report alerted them to a

deseription of the robbery suspects.

Subsequent to this alert, in the early morning hours,

the two officers spotted two men who appeared to fit the

descriptions of the robbery suspects, one of whom was

the appellant, at the Cannon Oil Station in Enterprise,

Alabama. At that time the appellant was standing out-

‘ide his car in what was deseribed as a well-lighted area.

ie ee

When appellant and his companion left the gas station,

they were followed by the two officers in their patrol car,

At this time Officer Baxter called in the tag number

and a deseription of the ear to the police station.

After travelling a short distance in the direction opposit.

Dothan, Officer Baxter signaled by a blinking blue light

for them to stop. Officer Baxter approached appellant’s

car and asked to see his driver's license, after which he

asked appellant to get out of the car. At that time, while

the other occupant remained in the car, Officer Baxter

made a search of the driver’s side of the vehicle, the con-

sole between the bucket seats, and the glove compartment.

During this search, Officer Baxter observed in the con-

sole a plastic bag containing a substance which he sus.

peeted as being marijuana. The officer also observed a

plastic bag containing small yellow tablets. At the officer’s

request, the appellant opened the trunk, the officer shined a

flashlight therein, and luggage was observed. The officers

noted that the appellant had quite a bit of money on his

person. No seizure was made at this time.

The appellant and the other suspect consented to be

and were thereafter taken to the police station in Officer

Baxter's car. At the same time, Lieutenant MeDaniel, who

had arrived on the scene shortly after the appellant was

stopped, drove appellant’s automobile to the parking lot

at the police station.

Upon arrival at the station, the appellant and his com-

panion were placed in a cell, at their request, in order to

get some rest. No charges were filed against the two men

at this time. At around 3:00 a.m., Officer Baxter, another

policeman, and a State narcotics agent searched appel-

lant’s car under the auspices of what the State concedes

was a defective search warrant.' The search revealed il

! Neither the warrant nor any of the details pertaining to it

appear in the record.

may * vem

legally possessed marijuana and LSD, some of each being

taken from the console and some from the trunk of the

vehiele.

Sometime after the search, the robbery victim arrived

from Dothan and stated that the appellant and his com-

panion were not the robbers. It was subsequent to these

events that the appellant was placed under arrest for

transporting and possessing the drugs in question.

Before hix arraignment, appellant filed motions to sup-

press the evidence and to quash the indictment. There

was a full hearing on the motion to suppress, resulting

in its denial. The motion to quash the indictment Was also

denied. Appellant was subsequently tried and convicted:

henee this appeal.

The prineipal question in this case involves the admissi-

bility of evidence seized from the appellant's automobile.

Appellant argues that the search of his ear on the street

and the subsequent search and seizure of various illegally

possessed drugs from his automobile at the police station

were illegal, thus rendering such drugs inadmissible into

evidence at the trial.

The evidence clearly established that a ‘‘search’’ was

made of appellant ’s car when initially stopped on the street

in Enterprise. However, there was absolutely no evidence

to indicate that a ‘‘seizure’’ was made at that time. Con-

sequently, appellant's motions to suppress the evidence

and quash the indictment, when directed to this initial

search, were properly denied.

We next turn our attention to the search of appellant’s

car made at the police station. It is the fruits of this search

which form the basis of appellant’s conviction. The State

concedes that the search was made without a valid search

Warrant, but asserts that it was not in violation of the ap-

pellant’s Fourth Amendment rights because it was made

with probable cause.

— A-10 —

We believe that probable cause existed for both searches,

In relation to the initial search of appellant’s car on the

street, the case of Dyke v. Taylor Implement Manufactur-

ing Co., 391 U. S. 216, 88S. Ct. 1472, 20 L. Ed. 2d 538, is in

point. There, the court stated that a warrantless search of

an automobile may be made where ‘‘officers have reason-

able or probable cause to believe that they will find the

instrumentality of a crime or evidence pertaining to a

crime.”’

The police officers who initially stopped and searched the

appellant’s car were acting on the basis of information

transmitted to them on their police radio that an armed

robbery had occurred in the nearby city of Dothan, Ala-

bama. It was the testimony of the two officers that the

suspects were described to them as two white males of

medium build; that one was described as ‘‘just over six

foot’? and having ‘‘long sideburns, dark colored hair and

not bushy’’; that the other suspect was described as being

short, approximately five feet eight inches to five feet ten

inches, and having ‘‘sandy colored hair bushy; no distine-

tive hair style, beard and mustache’’; that one suspect was

reportedly wearing dark work clothes, and the other light

colored clothing; and that the mode of transportation was

unknown.

The two officers testified that the appellant and his com-

panion, when spotted at the Cannon Gas Station in Enter-

prise, closely fit the description given in the radio report

of the robbery. Officer Baxter testified at trial as follows:

“Q. Now, where was this defendant when you first

saw him?

‘A. He was right under the lights at the gas station.

‘**(. Was he inside the automobile or outside?

‘*A. No, sir, he was standing outside.

‘‘Q. Was there anyone with him?

‘A. You, of.

— A-11—

‘“‘Q. What was the general appearance of this de-

fendant at that time with regard to his build, his

height, the condition of his hair and or beard, and so

forth?

‘‘A. Very closely resembled from message we had

received on the radio.

‘‘Mr. Rowe: We object to that, to the message re-

ceived on the radio.

‘The Court: I sustain the similarity.

‘‘Mr. Rowe: And I move to exclude that from the

jury.

“The Court: Yes, that is excluded, gentlemen.

“Q. (Mr. Stephens continuing) Just tell what you

saw there.

‘Well, the subject there had sandy hair bushy, no

distinctive hair style, a beard, and a mustache. And

he dressed—well, he had on the same clothes that were

given out in the report.

“*Q. Same type clothing?

‘*A, Same type work clothes.

“*Q. Was there anyone with this defendant?

‘A. There was an occupant in the ear on the passen-

ger side.

““Q. What did he look like?

“A. Well, 1 couldn’t tell right then exactly, but when

we stopped him he was tall, had dark hair, long side-

burns as the same description given on the radio re-

port.’’

Baxter also testified that when he first observed the

appellant in Enterprise, ‘‘ We figured he had had just about

enough time to get to Enterprise.’’ Also, the fact that the

vehicle driven by appellant was headed in the direction

away from Dothan, the robbery site, reinforced the offi-

cers’ suspicion that had already begun to foens on the

appellant and his passenger. This was also supported by

the luggage in the trunk and the large sum of money on the

appellant’s person.

=.

At the trial, Officer Baxter was asked to read a copy of

the alert which he received over his police radio on the

night of the robbery. It read as follows:

‘A. Ten-fifty p.m, 16 July 1970. Robbery of Texaco

Station in Dothan, $100.00 taken, two white males: Six

foot, blond hair, long sideburns, goatee, light colored

clothes. Number two, five foot eight to five foot ten,

black hair, green and white hunting cap, camouflage.

type, with dark colored work clothes. Called each

other William and Terry, pulled the phone out of the

wall, kept talking about a white Chevy, left on foo

running toward the parking at Northside Mall. Inves.

tigation being handled by Dothan P.D.”’

Sergeant Charles Heath of the Enterprise Police Depart-

ment testified that he received a ‘‘flash’’ of the robbery in

question during the night of July 16, 1970, and was respon-

sible for broadeasting the information about the robbery

over the police band radio. In his testimony, he corrobo-

rated Officers Baxter’s and Doty’s testimony that the ap-

pellant and his companion fit the descriptions of the rob-

bery suspects, as follows:

**Q. When you first saw this defendant there at the

police station he matched that general description, did

he not, except possibly for the height?

‘*A\. Yes, sir, just a little bit in height I would say,

sir.

**Q. All right, sir. Did the other subject fit the de-

scription as to the hair other than the clothing he had!

‘*A. He would have been just a little bit tall.

**(). He was a little taller?

**A. Yes, sir.

‘*Q. But as far as the hair, it was dark?

‘“*A. That is correct?’’

In Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280.

69 L. Ed. 543, the Supreme Court stated:

— A-13 —

“+The right to search and the validity of the seizure

are not dependent on the right to arrest. They are

dependent on the reasonable cause the seizing officer

has for belief that the contents of the automobile offend

against the law.’

‘‘*The measure of legality of such a seizure is, there-

fore, that the seizing officer shall have reasonable or

probable cause for believing that the automobile which

he stops and seizes had contraband * * *’ ”’

In Brinegar v. United States, 338 U. S. 160, 69 S. ('t.

1302, 93 L. Ed. 1879, the court stated that:

‘In dealing with probable cause, however, as the

very name implies, we deal with probabilities. These

are not technical; they are the factual and practical

considerations of everyday life on which reasonable

and prudent men, not legal technicians, act. The stand-

ard of proof is accordingly correlative to what must

be proved,

“«**The substance of all the definitions” of probable

cause ‘‘is a reasonable ground for belief of guilt.’’

MeCarthy v. DeArmit, 99 Pa. 63, 69, quoted with ap-

proval in the Carrol opinion. 267 U. S. at page 161,

40 S. Ct. at page 288, 69 L. Ed. 043, 39 A.L.R. 790.

And this ‘‘means less than evidence which would jus-

tify condemnation’’ or eonvietion * * *?

Based on all of these factors, we believe that the officers

had problable cause to believe that appellant's automobile

contained the fruits of a crime: namely, the Dothan rob-

hery,

Given the probable cause which existed at this time, we

do not believe that the subsequent search at the police

‘tation constituted a Fourth Amendment violation. We

‘ind the case of Chambers v. Maroney, 399 U.S. 42, 90S. Ct.

1975, 26 L. Ed, 2d 419, to be dispositive of this question.

inka

That was a case involving armed robbery where the po-

lice were given a description of the robbers’ car and the

clothing worn by two of the four men seen in the car. After

stopping such a car which contained occupants who met

the descriptions given, the four men were arrested and the

ear was taken to the police station. The police there con-

ducted a warrantless search of the car which revealed the

property stolen in the robberies. In affirming that convie-

tion, the Supreme Court thereby extended the rule of per-

missible search to a warrantless search based on probable

cause of an automobile which, having been stopped origi-

nally on a highway, is parked outside a police station.

As was stated in Chambers, supra:

‘On the facts before us, the blue station wagon could

have been searched on the spot when it was stopped

since there was probable cause to search and it was a

fleeting target for a search. The probable-cause factor

still obtained at the station house and so did the moll

ity of the car unless the Fourth Amendment permits a

warrantless seizure of the car and the denial of its use

to anyone until a warrant is secured. In that event

there is little to choose in terms of practical conse

quences between an immediate search without a war-

rant and the car’s immobilization until a warrant is

obtained... .”’

Thus, we find that the probable cause to search appel-

lant’s vehicle which existed on the street in Enterprise still

existed at the police station, as to the fruits of the Dothan

robbery.

II

We then come to this question: Where officers have

probable cause to conduct a warrantless search not incl

dent to an arrest, may property relating to an entirely

different offense be seized, where possession of that prop-

erty alone constitutes a crime? In Marron v. United States,

}

— A-15 —

275 U. S. 192, 48S. Ct. 74, 72 L. Ed. 231, the Supreme Court

stated:

“The requirement that warrants shall particularly

describe the things to be seized makes general searches

under them impossible and prevents the seizure of one

thing under a warrant describing another. As to what

is to be taken, nothing is left to the discretion of the

officer executing the warrant.’’

However, in Harris v. United States, 331 U. S. 145, 67

S. Ct. 1098, 91 L. Ed. 1399, the Court formulated an ex-

ception to the strict language of Marron. From Harris,

the following:

“... If entry upon the premises be authorized and

the search which follows be valid, there is nothing in

the Fourth Amendment which inhibits the seizure by

law-enforcement agents of government property the

possession of which is a crime, even though the of-

ficers are not aware that such property is on the prem-

ises when the search is initiated.’’

Again, in Abel v. United States, 362 U.S. 217, 80S. Ct.

683, 4 L. Ed. 2d 668, the Supreme Court spoke directly

to this point when it said:

‘‘... When an article subject to lawful seizure prop-

erly comes into an officer’s possession in the course

of a lawful search it would be entirely without reason

to say that he must return it because it was not one

of the things it was his business to look for... .”?

Although the opinions in Harris and Abel contain the

‘tatement that a policeman may seize any articles subject

o lawful seizure which turn up in the course of a lawful

earch, such was not said about a warrantless search not

incident to an arrest. Rather, in Harris and Abel, articles

Were seized from suspects incidental to lawful arrest.

— A-16 —

In Aron v. United States, 382 F. 2d 965 (8 Cir, 1967),

and United States v. Eisner, 297 F. 2d 595 (6 Cir. 1962),

federal appeals courts went one step further and held that,

even where no arrest has been made, officers searching

under a valid search warrant may seize property not de.

scribed in the warrant and relating to a different offense

where possession alone of that property constitutes a crime,

These two exceptions to the Marron doctrine have been

recognized by most courts to be the narrow scope of the

exception to Marron which was formulated in Harris,

and as indicated in Seymour v. United States, 369 F. 24

825 (10 Cir. 1966), cert. denied 386 U. S. 987, 87 S. (Ct.

1297, 18 L. Ed. 239, wherein the court stated:

‘|. . [NJotwithstanding the specificity of the consti-

tutional prohibition, the courts have apparently reeog.

nized a narrow exception dictated by the practicali-

ties of a particular situation as where in the course

of a lawful search pursuant to a lawful arrest or the

execution of a valid search warrant the officer u-

covers evidence of another crime. In these circum.

stances the officer is not required to close his eyes to

the realities of the situation. He may seize the fruits

or the instruments of the crime or even that which is

presumptively contraband.’’ (Italics added.)

In the instant case, and as previously noted, the seareh

and seizure which led to appellant’s conviction was made

prior to his arrest and not under the auspices of a valid

search warrant. In fact, such search was under an ad-

mittedly defective warrant. It therefore cannot be sue-

cessfully contended that the Harris exception, or the Aron

and Eisner extensions of this are applicable to the case at

bar.

We are, therefore, of the opinion that since both suspects

had been placed in jail and their automobile placed on the

county parking lot, there could be no question that they

— A-17 —

would flee with the vehicle. See Preston v. United States,

876 U.S. 364, 84S. Ct, 881, 11 L, Ed. 2d 777. We hold that

the officers should have gone before a magistrate and ob-

tained a valid search warrant before their seizure of the

items in the appellant’s vehicle, other than those involving

the Dothan robbery, could be deemed lawful.

In view of this, we are of the opinion that the appellant’s

motion to suppress the State’s evidence should have been

granted,

In light of these determinations, we pretermit considera-

tion of the other claims of error as herein urged by the

appellant.

For the foregoing reasons, this judgment of conviction

is due to be reversed and the cause be remanded.

Reversed and Remanded.

Harris, J., concurs; Cates, P. J., concurs specially as per

opinion; Almon, J., concurs in the result.

Cates, P. J., concurring specially.

I would reverse under Whiteley v. Warden of Wyoming

Penitentiary, 401 U.S. 560, wherein the court said:

“* * * In support of this proposition, the State

argues that a reviewing court should employ less

stringent standards for reviewing a police officer’s

assessment of probable cause as a prelude to a war-

rantless arrest than the court would employ in re-

Viewing a magistrate’s assessment as a prelude to

issuing an arrest or search warant. That proposition

has been consistently rejected by this Court. United

States v. Ventresca, 380 U.S. 102, 105-109 (1965);

Aquilar vy, Texas, 378 U. S. 108, 110-111 (1964); Jones

V. United States, 362 U. S. 2597, 270-271 (1960). And

the reason for its rejection is both fundamental and

Obvious: less stringent standards for reviewing the

— A-18 —

officer’s discretion in effecting a warrantless arrest and

search would discourage resort to the procedures for

obtaining a warrant. Thus the standards applicable to

the factual basis supporting the officer’s probable cause

assessment at the time of the challenged arrest and

search are at least as stringent as the standards applied

with respect to the magistrate’s assessment. See Me.

Cray v. Dlinois, 386 U. S. 300, 304-305 (1967)."’

—401 U. S. 566

On Rehearing

We have carefully considered the application for rehear.

ing and deem that it should be overruled, and in further

support of the views expressed in our original opinion, in

part II thereof, we also wish to cite Coolidge v. New Hamp.

shire, 403 U. S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564.

Application overruled.

Cates, P. J., Harris and DeCarlo, J. J., concur.

Almon, J., dissenting from the overruling of the appli-

cation for rehearing.

After further consideration of this cause, I would grant

the application for rehearing and affirm the judgment of

conviction on authority of Chambers v. Maroney, 399 U.S.

42, 90 S. Ct. 1975, 26 L. Ed. 2d 419.

— A-19 —

APPENDIX ‘‘D”’

Entry of Judgment by Alabama Court of Criminal Appeals

March 20, 1973

State of Alabama — Judicial Department

Court of Criminal Appeals

dth Div. 102

McArthur Bassett

vs.

State of Alabama

Appeal from Coffee Cireuit Court

(JUDGMENT AFTER REMANDMENT BY THE

SUPREME COURT OF ALABAMA)

Come the parties by attorneys, and the record and mat-

ters therein assigned for errors being submitted on briefs

and duly examined and understood by the Court, it is con-

sidered that in the record and proceedings of the Circuit

Court there is no error. It is therefore considered that the

judgment of the Cireuit Court be in all things affirmed.

It is also considered that the appellant, and sureties on the

appeal bond, pay the costs of appeal of this Court and of

the Cireuit Court.

BRIEF FOR THE

RESPONDENTS IN

OPPOSITION

a —UPY ' —— |

J. 18 @

IN THE ,

Supreme Court of the United gai 4

OCTOBER TERM, 1973

No. Q= 17 1 1

McARTHUR BASSETT,

Petitioner

versus

STATE OF ALABAMA,

Respondent

ON PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF ALABAMA

BRIEF FOR RESPONDENT IN OPPOSITION

WILLIAM J. BAXLEY

Attorney General of Alabama

RICHARD F. CALHOUN

Assistant Attorney General

of Alabama

DON CHARLES DICKERT

Assistant Attorney General

of Alabama

COUNSEL FOR RESPONDENT

Page

OPINIONS BELOW ... 1

JURISDICTION 1

QUESTIONS PRESENTED. ..... 2

CONSTITUTIONAL PROVISIONS INVOLVED ...._........ 2

STATEMENT OF THE CASE 2

ARGUMENT 3

CONCLUSION 8

CERTIFICATE OF SERVICE cscs 9

ii

CITATIONS

CASES: Page

Abel v. United States, 362 U. S. 217, 80 S. Ct. 683,

4 L. Ed. 2d 668 TC,

Chambers v. Maroney, 399 U. S. 42, 90 S. Ct. 1975,

26 L. Ed. 2d 419 (1970) 3

Coolidge v. New Hampshire, 403 U. S. 443, 91 S. Ct.

EE | EEE 3

Davis v. United States, 328 U. S. 582, 66 S. Ct. 1256,

90 L. Ed. 1453 (1946) 7

Harris v. United States, 331 U. S. 145, 67 S. Ct. 1098,

D1 L. Ed. 1399 (1947) 6

Henry v. United States, 361 U. S. 98, 80 S. Ct. 168,

4 L. Ed. 2d 134 (1959) eae

Schneckloth v. Bustamonte, —— U. S. ——, 93 S.

Ct. ——, 36 L. Ed. 2d 854 (1973)

~1

Seymour v. United States, 369 F. 2d 825 (10 Cir. 1966) .... 6

United States v. Davis, 423 F. 2d 974 (5th Cir. 1970)... 7

Zap v. United States, 328 U. S. 624, 66 S. Ct. 1277,

a 7

IN THE

Supreme Court of the United States

OCTOBER TERM, 1973

No.

McARTHUR BASSETT,

Petitioner

versus

STATE OF ALABAMA,

Respondent

SC ————— —

ON PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF ALABAMA

—————————————————— Sere SSeS nasnsnnen a

BRIEF FOR RESPONDENT IN OPPOSITION

SSS

asain ‘ieeeenae —$—$—$— ——

OPINIONS OF THE COURT BELOW

The opinion of the Court of Criminal Appeals of Ala-

bama was rendered August 15, 1972, and is reported at 275

So. 2d 713, and is also reproduced in Appendix C to the in-

stant Petition. The opinion of the Alabama Supreme Court

Was rendered on February 8, 1973, and is reported at 275

So. 2d 720 and is also reproduced in Appendix A to the in-

stant Petition.

JURISDICTION

The Petitioner has applied to this Honorable Court for

a Writ of Certiorari to review the judgment of the Alabama

2

Supreme Court rendered on February 8, 1973, which reversed

the decision previously rendered by the Alabama Court of

Criminal Appeals on August 15, 1972. As a result of the

Alabama Supreme Court’s decision, the Alabama Court of

Criminal Appeals entered an order on March 20, 1973, affirm-

ing the conviction of McArthur Bassett.

Petitioner applied for this Writ of Certiorari under the

provisions of Title 28, Section 1257(3), United States Code.

QUESTION PRESENTED

Where officers have probable cause to conduct a warrant-

less search, may property relating to an entirely different of-

fense be seized, where possession of that property alone con-

stitutes a crime?

CONSTITUTIONAL PROVISIONS INVOLVED

The Fourth and Fourteenth Amendments to the Consti-

tution of the United States.

STATEMENT OF THE CASE

On November 9, 1970, McArthur Bassett was convicted

in the Coffee County Circuit Court of possession of Lysergic

Acid Diethylamide (LSD-25). On appeal, the Alabama Court

of Criminal Appeals reversed the judgment of the trial court,

holding that even though there was probable cause to search,

the evidence seized was not admissible because it was not

what the officers expected to find. The Alabama Supreme

Court granted certiorari and reversed the decision of the

3

Alabama Court of Criminal Appeals and remanded it where

the conviction was affirmed. Bassett then filed the instant

Petition. The facts are adequately set out in the opinions

below which are reproduced as Appendices to Bassett’s

Petition.

ARGUMENT

Petitioner Bassett seeks to have this Honorable Court

reverse the Supreme Court of Alabama and hold that police

officers having probable cause to conduct a warrantless search

could not seize property the possession of which constituted

an offense unrelated to the offense for which probable cause

existed. Petitioner contends that Coolidge v. New Hampshire,

403 U. S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971), re-

quires that rather untenable conclusion in the case at bar

even though Chambers v. Maroney, 399 U. S. 42, 90 S. Ct.

1975, 26 L. Ed. 2d 419 (1970), is clearly applicable. Bas-

sett argues that there were no “exigent circumstances” pres-

ent justifying a warrantless search of Petitioner's automobile.

Opinion of Alabama Supreme Court correct

Despite Petitioner’s insistence to the contrary, the de-

cision below is correct. It was noted in that opinion that

the facts sub judice are very similar to the factual situation

presented to this Honorable Court in Chambers v. Maroney,

supra. In Chambers this Court held that there was no

violation of an accused’s Fourth Amendment rights for

police officers to make a warrantless search of an auto-

mobile taken to a police station after the accused and others

had been arrested while riding in the automobile where:

(1) there was probable cause to arrest the occupants of the

4

automobile for armed robbery and to search the automobile

for guns and stolen money; (2) an immediate search of the

automobile at the time and place of the arrest would have

been constitutionally permissible; and (3) it was not un-

reasonable to take the automobile to the police station before

making the search and probable cause for the search still

existed after the automobile was taken to the police station.

Here both the Alabama Court of Criminal Appeals and

the Alabama Supreme Court found that probable cause to

search existed both at the time the automobile was stopped

on the street and later at the police station. Therefore, the

conclusion that the search and seizure of the contraband was

constitutionally permissible is inescapable.

Coolidge does not require reversal

| Petitioner insists that Coolidge v. New Hampshire, 403

U. S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971), requires

that evidence seized during a warrantless search is not ad-

missible unless there are “exigent circumstances.” However,

this Court again acknowledged in Coolidge, supra, at 29 L.

Ed. 2d at 579, that “ ‘exigent circumstances’ justify the war-

rantless search of ‘an automobile stopped on the highway,

where there is probable cause. .. .”

The facts giving rise to the Court’s decision in Coolidge,

supra, are vastly different from those in the case at bar.

In that case, the police had known for some time of the

automobile in question and of its probable role in the crime.

Moreover, they had planned in advance to seize it! In the

instant case, there was no planned seizure as there was in

Coolidge, supra. The situation presented to Officers Bax-

5

ter and Doty was precisely the same as that which confronted

the police in Chambers, supra.

As in Chambers the automobile could have been searched

on the spot when it was stopped, since there was probable

cause to search and it was a fleeting target for search. Also,

in both that case and the instant case, the probable cause

factor and the mobility of the vehicle still obtained at the

station house. Petitioner’s argument implies that the car

should have been held until a valid warrant was obtained

before it was searched. Addressing this alternative in Cham-

bers, supra, Mr. Justice White wrote:

“For constitutional purposes, we see no difference

between on the one hand seizing and holding a car

before presenting the probable cause issue to a magis-

trate and on the other hand carrying out an imme-

diate search without a warrant. Given probable

cause to search, either course is reasonable under

the Fourth Amendment.”

That probable cause to search the car existed both on the

street and a short time later at the police station is not ques-

tioned here. Thus, the evidence discovered was admissible

against Bassett. It is emphasized that the officers made a

diligent good faith effort to obtain a valid search warrant

prior to their thorough search of Petitioner’s automobile

even though it was after midnight. There is no claim that

the police intentionally bypassed procedures designed to safe-

guard individual constitutional rights.

Appellant arrested prior to search and seizzure

It is noted in the opinion rendered herein by the Ala-

bama Court of Criminal Appeals that had there been a law-

6

ful arrest prior to the officer’s search of Petitioner’s car,

the narcotics would have been properly admitted. It was

further frequently acknowledged that probable cause existed

both at the time the car was stopped by the police and at the

time it was searched at the station house. However, it is

stated in that opinion that the search and seizure leading

to Bassett’s conviction was made prior to his arrest.

; As argued by the State below, the facts clearly show that

the contrary is true, i.e., Petitioner was arrested prior to any

seizure of evidence. It is fundamental that an arrest takes

place at the moment that an individual is restrained and

comes under the control of the officers. When Officers

Doty and Baxter detained Bassett and his companion and

restricted their liberty of movement, the arrest was complete.

Henry v. U. S., 361 U. S. 98, 80 S. Ct. 168, 4 L. Ed. 2d 134.

The Henry case is very similar in many respects to the case

at bar; however, it was reversed because the Police did not

have probable cause at the time of the arrest. This fatal

defect is not contained in the instant case. Thus, those pro-

visions quoted by the Alabama Court of Criminal Appeals

from Harris v. U. S., 331 U. S. 145, 67 S. Ct. 1098, 91 L. Ed.

1399, Abel v. U. S., 362 U. S. 217 80 S. Ct. 683, 4 L. Ed. 2d

668, and Seymour v. U. S., 369 F. 2d 825 (10 Cir. 1966) are

applicable to the search and seizure in this case.

seizure of article in plain view proper after valid entry

Another rationale which authorizes seizures such as that

involved herein is the plain view theory. Objects falling in

plain view of an officer who has a right to be in the position

to view such objects are subject to seizure and may be intro-

duced into evidence. Coolidge v. New Hampshire, 403 U.S.

7

443, 91 S. Ct. 2022, 29 L. Ed. 24 564, 582-584 (1971) ; United

States v. Davis, 423 F. 24 974 (5th Cir., 1970).

The Court of Criminal Appeals of Alabama admits in

its opinion that probable cause existed to search the auto-

mobile both on the street and at the police station. Thus,

the initial intrusion based on probable cause gave the officers

the right to observe the contraband and to seize it without

a search warrant.

Appellant Consented To The Search

It is well-settled that a search conducted pursuant to

consent is an exception to the requirement of a warrant

and is constitutionally permissible. Davis y. United States,

328 U. S. 582, 66 S. Ct. 1256, 90 L. Ed. 1453 (1946) ; Zap »v.

United States, 328 U. S. 624, 66 S. Ct. 1277, 90 L. Ed. 1477

(1946). The only question which then arises under the Fourth

and Fourteenth Amendments concerns the voluntariness of

the “consent.”

It is respectfully submitted that in the instant case

Bassett voluntarily consented to the search. That the con-

sent was not actually submission to any express or implied

assertion of authority is borne out by his agreeing to open

the trunk of his car at Officer Baxter’s request. In fact,

Petitioner argues that he voluntarily accompanied officers

to the police station and even requested a cell so that he could

get some rest,

A case bearing a striking resemblance to the one at bar

is Schneckloth v. Bustamonte, U. S.

——-, 36 L. Ed. 2d 854, decided by this Honorable Court

on May 29, 1973. In that case, consent was determined to

8

have been voluntarily given when an occupant of a car stopped

by the police not only allowed them to search said car but

also assisted in the search by opening the trunk as in the

case sub judice.

Thus, though a warrant had been obtained and probable

cause existed, as noted by the lower courts, an exception to

the requirement of both or either of these was present. There-

fore, the fruits of this search are constitutionally :dmissible

under the consent theory as well as the other theories noted.

CONCLUSION

Respondent strenuously maintains that: (1) the opinion

of the Alabama Supreme Court is correct; (2) that the con-

traband is clearly admissible under Chambers v. Maroney;

(3) that the drugs are also admissible under the plain view

theory; and (4) that Bassett consented to the search. Any

of these theories provide legal justification for the seizure

and introduction of the drugs into evidence. Thus, the con-

clusion is unavoidable that the search and seizure in the in-

stant case is not unreasonable in the Constitutional sense.

Respectfully submitted,

~ LLL. Zz / Kv Jf "

WILLIAM J. BAXLEY

Attorney General of Alabama

#) — f) / j

RICHARD F. CALHOUN

Assistant Attorney General

Of Alabama

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a

-

we _ LEHAS OO?

DON CHARLES DICKERT

Assistant Attorney General

of Alabama

250 Administrative Building

Montgomery, Alabama 36104

Attorneys for Respondent

CERTIFICATE OF SERVICE

I, Richard F. Calhoun, one of the Attorneys for Re-

spondent, and a member of the Bar of the Supreme Court

of the United States, hereby certify that on the i> day

of July, 1973, I served the requisite number of copies of the

foregoing Brief for Respondent In Opposition upon Honora-

ble Richard S. Manly, P.O. Drawer U, Demopolis, Alabama

36732, and Honorable T. W. Thagard, Jr., 600 Bell Building,

10

Montgomery, Alabama 36104, Attorneys for Petitioner, by

depositing the same in the United States mail, first class

postage prepaid, properly addressed to him at the address

given.

RICHARD F. CALHOU

Assistant Attorney General

of Alabama