# Petition for Writ of Certiorari — Bassett v. Alabama

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_0661%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1973
- **Citation:** 414 U.S. 867

## Text

' euprome Cort, 0° Ss:
ritc ewer’ FILE D

JUN 18 = «°7°

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

:

; —— ee ree hy eet fa AS BEEN PMT
TLR PDS PEPIN EM LOE LININE RE LE ETE Nui NPR ETRE AEN SEEN HOST UNS 2S MRR RRR ARTE ¢

tes ae 6

Poreeressowe Se LR EA US Ng akan a

APPENDIX

eee. | pee

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

#t

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_0661%3A1. Public record. Not legal advice.