Petition for a Writ of Certiorari — Effler v. Tennessee (No. 73-1938)

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INDEX TO BRIEF

I CITATION TO OPINIONS OF LOWER

EP Ne eRRAL ore a dd weheesaes a ook cs

II BASIS FOR JURISDICTION ..............

IIl QUESTION PRESENTED FOR REVIEW ...

IV CONSTITUTIONAL PROVISION INVOLVED

V STATEMENT OF CASE .......ccccccccce

VI ARGUMENT AND CONTENTIONS IN SUP-

PORT FOR ALLOWANCE OF WRIT......

VII SUMMARY AND CONCLUSION ..........

TABLE OF AUTHORITIES

Cases:

Carroll v. United States,

(1925) 267 U.S. 132, 69 L. Ed. 2d 543,

ct ca hg ER ERR SN TE en RCE Brew PRE

Chambers v. Maroney,

(1970) 399 U.S. 42, 26L. Ed. 2d 419,

I Me I ie i avery eae

Coolidge v. New Hampshire,

(1971) 403 U.S. 443, 29L. Ed. 2d 564,

Pe Me EE akvunkan dhawaeniecwee ieeeee

Dyke v. Taylor Implement Mfg. Co., Inc.,

(1968) 391 U.S. 216, 20 L. Ed. 2d 538,

3 a”. Se jhivkebenwenan

Katz v. United States,

tp oF LS i | re ivebewenee

Ker v. California,

oo 6 ree sesbwersods

Mapp v. Ohio,

(1961) 367 U.S. 643, 6L. Ed. 2d 1081,

Bee le Seed Shiimaiatieie teats

10, 14

11

9, ll

McCurdy v. State,

(1965) 42 Ala. App. 646, 176 So. 2d 53..... 11

People v. Cruz,

(1968) 264 Cal. App. 2d 437, 441.......... 12

People v. Erickson,

(1964) 31 Ill. 2d 820, 201 N.E.2d 422 ..... 13

People v. Superior Court of Yolo County,

(1970) 3 Cal. 3d 807, 91 Cal. Rptr. 729,

478 P.2d 449 ...ccceceeccees ee ecsccccoese 12

Preston v. United States,

(1964) 376 U.S. 364, 11 L. Ed. 2d 777, .

OES. GE. TEE: sascessvccness pend becewe sans 11

United States v. Garay,

(1973) 477 F.2d 1306 ....... cékéoeesesbes .9

Vaughn v. State,

(1971) 477 S.W.2d 260 .....-eeee- “ntenes 10

Wong Sun v. United States,

(1963) 371 U. S. 471 eeeesee eeeeeeevev eee eee ee 14

Constitution:

Fourth Amendment,. United States Constitution. 3, 9, 16

Other Authorities:

10 A.L.R.3d, page 314 .......eeeee wee caues ll

45 A.L.R.3d, page 581 .....cccceceee Sah Sea ‘ 12

INDEX TO APPENDIX

Motion to Suppress Evidence Based on Illegal

Search and Seizure, with Affidavit in

Support Thereof, filed January 2, 1973 .... A.l

Hearing on Motion to Suppress,

January 2, 1973 ....ccccccccccsceces askans A. 4

Order Overruling Motion to Suppress,

filed January 2, 1973.......cceccccecceecs A, 24

Felony Judgment, filed January 3, 1973 ...,..

Opinion of Court of Criminal Appeals of

Tennessee, filed February 25, 1974 ......

Judgment entered pursuant to Opinion of

Court of Criminal Appeals of Tennessee,

See Pemrwary 25, 1976 wcrc cccctvcsces

Decree of Supreme Court of Tennessee

denying Petition for Writ of Certiorari,

Spe ee Sa RE vcd ab adecsasicecccn ess

Order granting stay of execution from Judg-

ment of Court of Criminal Appeals of

Tennessee, filed April 2, 1974...........

iii

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1973

NO.

EARL DEAN EFFLER,

Petitioner,

Vv.

STATE OF TENNESSEE,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF TENNESSEE

Earl Dean Effler prays for the issuance of a writ of

certiorari to review the judgment of the Supreme Court

of the State of Tennessee entered on April 1, 1974,

wherein it denied a petition for certiorari filed with it

on February 26, 1974, in which petitioner requested a

review and reversal of the judgment and decision of the

Court of Criminal Appeals of Tennessee filed on Febru-

ary 25, 1974, thereby resulting in his conviction becom -

ing final in the State of Tennessee Criminal Appellate

System.

eR Rn Pa keg Ba ae ———

EE EOS TE RAIS POLAT, “ 93

I

CITATIONS TO OPINIONS OF LOWER COURTS

The Opinion of the Court of Criminal Appeals of Ten-

nessee consisting of three pages was rendered on Febru-

ary 25, 1974, and apparently has not.as yet been reported

in the official or unofficial reports, but a copy of said

Opinion is appended hereto and set out verbatim in the

Appendix (p. A. 26). The Judgment entered pursuant to

said Opinion is likewise set out verbatim hereto in the

Appendix (p.' A. 29), and from said Judgment a Petition

for Writ of Certiorari to the Tennessee Supreme Court

was filed by petitioner which was denied by the Tennessee

Supreme Court on April 1, 1974, said Decree being like -

wise appended hereto. in the Appendix (p. A. 31), which

resulted in the Judgment heretofore referred to of the

Court of Criminal Appeals of Tennessee becoming final

in the State of Tennessee Court system. Thereafter on

April 2, 1974, the Honorable W. Wayne Oliver, one of

the Judges of the Court of Criminal Appeals of Tennessee,

signed an Order granting a stay of execution of the Judg-

ment rendered February 25, 1974, and allowing the peti-

tioner ninety (90) days from April 1, 1974, within which

to file a petition for writ of certiorari in the Supreme

Court of the United States, a copy of said Order being

appended hereto in the Appendix (p. A. 32), The present

petition is being filed within that ninety (90) day period.

Il

BASIS FOR JURISDICTION

The Judgment sought to be reviewed herein was entered

on February 25, 1974. The jurisdiction of the Supreme

_ Court of the United States to review said Judgment is con-

‘

BEATE a MEPL Rare .

AOL AREL LEE PIIES SEMEL AR RC eee mrmetetenen tiveness

3

ferred on this Court by Title 28, United States Code Sec-

tion 1257 (3).

Il

QUESTION PRESENTED FOR REVIEW

“WAS THE SEARCE, SEIZURE, AND ADMISSIBILITY

INTO EVIDENCE OF THAT PROPERTY UPON WHICH THE

PETITIONER'S CONVICTION WAS BASED; REASONABLE

UNDER THE SURROUNDING FACTS AND CIRCUMSTAi'CES

SO AS TO BE CONSTITUTIONALLY PERMISSIBLE, AND

NOT IN VIOLATION OF THE FOURTH AMENDMENT TO

THE CONSTITUTION OF THE UNITED STATES?

IV

CCNSTITUTIONAL PROVISION INVOLVED

The Fourth Amendment to the Constitution of the United

States provides as follows:

"Amendment 4. Unreasonable searches and seizures. --

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violaied, and no

Warrants shall issue, but upon probable cause, sup-

ported by Oath or affirmation, and particularly describ-

ing the place to be searched, and the persons or things

to be seized."

BEA SAI TARTS he i a cali LEN LS SR LORI ERE TEN Tipe It Re tate COO AT A iting Ng ET CR eRE RS eR ex phn We REDR

4

V

STATEMENT OF CASE

In reviewing the factual matters necessary for a proper

determination of the one issue raised herein, it is unneces-

sary to review the entire record and evidence introduced

at the trial, as the material facts are practically undis-

puted, and it is only the law applicable thereto as ex-

pounded and interpreted in the numerous decisions deal -

ing with motor vehicle searches which gives rise to the

present controversy.

On Sunday, December 3, 1972, and at around 7:00 p.m.

on that date, the petitioner was operating his automobile

ona gravel road known as the Marshall Hill Road located

in the Wildwood Community in Blount County, Tennessee,

which adjoins Sevier County, Tennessee, the latter being

the birthplace of the well-known female country and western

recording star, Miss Dolly Parton, whose rise to fame and

national recognition was hastened by her energetic rendi-

tion of a catchy little tune which she wrote and recorded

that appropriately describes the thoughts which prompted

the actions of the officers who conducted the search of

petitioner's vehicle that produced the evidence upon which

his conviction was obtained, and his resulting sentence of

not more than ten years in the Tennessee State Penitentiary.

The title of the tune, "Something Fishy", tells the story

of a young wife whose suspicions are aroused by her hus-

band's weak excuses to her for his consistently coming in

late at night, and each time in the chorus Miss Parton con-

cludes, “There must be something fishy going on," thereby

indicating her tendency to be suspicious of his actions.

With that brief introduction, and apologies to Miss Parton,

the petitioner will now review the circumstances which led

to his arrest, trial, conviction, penitentiary sentence,

Tee eee ere ee en ae

Seg

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appeals through the State of Tennessee court system, and

finally to the present petition by which he seeks a review,

reversal, and dismissal of said conviction.

The petitioner filed a written Motion to Suppress the

evidence with the trial court, and a hearing was held

thereon outside the presence of the jury at the beginning

of the trial on January 2, 1973, which testimony is set

forth in the Appendix hereto (pp. A. 4-A,. 23), and which

is copied verbatim from Vol. 1 of the Bill of Exceptions

at Pages 2-26. Briefly summarized, it is as follows:

On Sunday, the third day of December, 1972, after dark

at approximately 7:00 p.m., two deputies from the Blount

County Sheriff's Department, Mark Proctor and Floyd F.

Kimball, were on routine patrol in their cruiser on the

Marshal! Hill Road, a rural, gravel road in Biount County,

Tennessee, when they came over a rise in the road and

observed, approximately two hundred feet ahead of them,

an cutomobile that was in the process of backing from the

public road into a driveway that led into an open field,

said vehicle stopping some fifteen to twenty feet off of the

public road and up into the private drive. As the vehicle

observed by them was so backing, they observed that its

headlights were off, although its parking lights were on.

The cruiser was brought to a Stop in front of the driveway

and the deputies got out. At about the same time, the

occupant of the vehicle got out, walked the fifteen or twenty

feet down to the edge of the public road and inquiry was

made as to whether or not there was any trouble or if any-

thing was wrong. The deputies observed that the person

appeared to be nervous in that he was wringing his hands,

lit a cigarette, took two or three puffs on it and stomped

it out, and in general seemed to them to be trying to keep

them away from his car. The deputies then walked the

fifteen to twenty feet up to the petitioner's vehicle which

6

was then on private property off of the public road, shined

their flashlights into it, and observed what appeared to

them to be some antique rifles and Christmas packages

on the back seat and back floorboard. Based on such

observations by them, the petitioner was asked to have a

seat in the cruiser while the deputies radioed for a supe-

rior officer, who shortly arrived at the scene, was briefed

by the deputies on what had occurred, himself observed

the property in the petitioner's vehicle, and almost imme-

diately thereafter placed the petitioner under arrest for

"investigation." At that time, there had been no report

of the property found in petitioner's car as having been

stolen in a burglary that had occurred earlier that day.

Petitioner was then taken to the Blount County Jail where

he was “booked on investigation" and held without bond

or further charge for several days. Later that evening,

a report was received regarding the property that had

been taken in a burglary at the home of a Ken Cornett,

a.d petitioner was eventually charged, indicted, tried and

convicted of the offense of concealing stolen property, for

which he received a sentence of not less than three years

nor more than ten years in the state. penitentiary.

VI

ARGUMENT AND CONTENTIONS IN SUPPORT

FOR ALLOWANCE OF WRIT

The Court of Appeals of Tennessee has decided a Fed-

eral constitutional question of substance which has not been

specifically heretofore determined by this Court, and in

addition has decided said Federal! question of substance in

a way and manner which is not in accord with comparable

applicable principles and decisions of this Court.

Sf ones eee ee ee ee ee

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The petitioner, Earl Dean Effler, was indicted on De-

cember 14, 1972, by the Blount County Grand Jury for the

crime of concealing stolen property, said indictment pro-

viding as follows:

The Grand Jurors of the State of Tennessee, duly elected,

impaneled, sworn, and charged to inquire in and for

the body of the County of zlount in the State aforesaid,

upor their oaths, present that Earl Dean Effler late of

the said County, heretofore, to wit, on the 3rd day of

December, 1972, with force and arms, in the County

of Blount aforesaid, then and there, unlawfully feloni-

ously and fraudulently did conceal and aid in concealing

certain personal property, to-wit: shotgun, two rifles,

one pearl necklace, one electric shaver, one sewing

chest, all to the value of $1,000.00, the property of Ken

Cornett, which said property had been feloniously taken

and stolen from the said owner, the said Earl Dean

Effler aforesaid knowing the same to have been so ob-

tained, with the fraudulent intent to convert the same

to his own use and to deprive the true owner thereof,

against the peace and dignity of the State of Tennessee.

Thereafter, on January 2, 1973, a Motion to Suppress

was filed on his behalf which is appended hereto in the

Appendix (p. A. 1), anda hearing was held thereon on

January 2, 1973, outside the presence of the jury, the

testimony introduced having been heretofore referred to

and copied verbatim in the Appendix hereto (pp. A. 4-A, 23).

The trial court overruled the Motion to Suppress, said

Order being likewise appended hereto in the Appendix (p.

A.24). Thereafter, the petitioner was convicted of the

offense charged in the indictment, the punishment being

fixed at a maximum period of ten years in the state peni-

tentiary, a copy of said felony judgment entered by the

trial court on January 3, 1973, being appended hereto in

the Appendix (p. A. 25). From that final judgment, a

timely Motion for New Trial was filed and overruled, and

an appeal granted to the petitioner to the Court of Crimi-

nal Appeals of Tennessee upon the posting by him of a

$5,000.00 appearance bond. The Court of Criminal Ap-

peals affirmed the conviction as shown in its Opinion and

Judgment appended hereto in the Appendix (pp. A. 26-A. 31),

and from that Judgment a Petition for Certiorari in the Ten-

nessee Supreme Court was filed by the petitioner. The

Supreme Court of Tennessee denied the petition on April 1,

1974, said Order being appended hereto in the Appendix

(p. A. 31), which resulted in the judgment of the Court of

Criminal Appeals of Tennessee becoming final in the State

of Tennessee court system. On April 2, 1974, an Order

staying execution of that judgment and allowing the peti-

tioner ninety days within which to file a Petition for Writ

of Certiorari in the United States Supreme Court was

entered, said Order likewise being appended hereto in the

Appendix (p. A. 32). The sole issue raised in this Petition

concerns the legality of the search and seizure of the items

of personal property taken from his automobile, and intro-

duced into evidence over his objection at the trial, without

which no conviction could have been obtained. No case

exactly in point has been found and particularly none has

been found where the automobile searched was off of the

public highway, was not stopped by the searching officers,

where no arrest for any traffic offense was made by the

searching officers, and where the searching officers at

the time of the search had no knowledge regarding the

items which were seized as having been stolen and made

the basis for a criminal prosecution as in the present case.

In this case, if the evidence is finally determined to be

constitutionally admissible, it must necessarily be upon

the consideration of certain principles derived from a

variety of cases dealing with automobile searches. It is

9

now settled that evidence obtained by search and seizure

in violation of the Fourth Amendment to the United States

Constitution is inadmissible in state court proceedings,

Mapp v. Ohio, (1961) 367 U.S. 643, 6L. Ed. 2d 1081,

81S. Ct. 1684,

The Fourth Amendment to the United States Constitution

requires that a warrant issue from a magistrate before a

search and seizure may be conducted. To this rule there

have been recognized certain exceptions not requiring a

search warrant, and where the state relies upon one of

the exceptions to the warrant requirement, the burden

rests upon the state to demonstrate the ava ilability of that

exception in a particular case, see United States v. Garay,

(1973) 477 F.2d 1306, and Coolidge v. New Hampshire,

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

One of the exceptions to the warrant requirement is a

search incident to a valid arrest, while another exception,

more relevant to the present case, is a search without a

warrant of moving objects such as motor vehicles.

Searches conducted outside the judicial process, with-

out prior approval by judge or magistrate, are per se

unreasonable under the Fourth Amendment — subject

only to a few specifically established and well -delineated

exceptions.

Katz v. United States, 389 U.S. 347, 357 (1967) (foot-

notes omitted). Fourth Amendment requirements are

binding on the states. Ker v. California, 374U.S. 23

(1963).

The exception regarding motor vehicles is justified on

the grounds of necessity, that is, it is not practicable to

secure a warrant under the circumstances because the

vehicle can be quickly moved out of the locality or juris-

diction within which the warrant must be sought, this rule

SRD EY ROR EO ener oe eee

10

having been first laid down in Carroll v. United States,

(1925) 267 U.S. 132, 69 L. Ed. 2d 543, 43S. Ct. 280.

The Court of Criminal Appeals of Tennessee has had

recent occasion to cite with approval the Carroll decision,

supra, in the case of Vaughn v. State, (1971) 477 S.W.2d

260, and at page 262 of said Opinion the following state -

ment is made:

"The pivotal question, as we view this record, is

whether the search as conducted was legal. ' We are

satisfied that the search of the trunk and the discovery

of the fourteen cases of Robitussin was not connected

in any manner with the offense which brought about the

initial arrest. In fact, the only basis the officer had

for making the search was his suspicion that was aroused

by the mannerisms of Vaughn. This is not sufficient.

In Carroll v. United States, 267 U.S, 132, 149, 45S.

Ct. 280, 283-284, 69 L. Ed. 543, the following may

be found:

""On reason and authority the true rule is that if the

search and seizure without a warrant are made upon

probable cause, that is, upon a belief, reasonably aris-

ing out of circumstances known to the seizing officer,

that an automobile or other vehicle contains that which

by law is subject to seizure and destruction, the search

and seizure are valid.' (Emphasis added.)

“The trooper had no prior knowledge of any other of-

fense having been committed by the defendants, because,

as he related, he was looking for anything he could find.

In short, he was conducting a condemned exploratory

search."

Beginning with Carroli v. United States, supra, there

have been a series of cases from the United States Supreme

SIE SAA RSG SO Rarer

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ll

Court dealing with motor vehicle searches, and a compre -

hensive and exhaustive analysis of these cases is contained

in the Coolidge case, supra, which reviewed practically

every case dealing with the subject, including Preston v.

United States, (1964) 376 U.S. 364, 11 L. Ed. 2d 777,

84S. Ct. 881, Dyke v. Taylor Implement Mfg. Co., Inc.,

(1968) 391 U.S, 216, 20 L. Ed. 2d 538, 88S. Ct. 1472,

and Chambers v. Maroney, (1970) 399 U.S. 42, 26L. Ed.

2d 419, 90S. Ct. 1975.

Of the leading cases on the subject mentioned above,

that of Dyke v. Taylor Implement Mfg. Co., Inc., seems

to be most similar to the present case, and coincidentally

the Dyke case also arose in Tennessee with the Tennessee

Supreme Court having affirmed the conviction from which

certiorari was granted by the United States Supreme Court,

and the conviction set aside on the grounds that the evidence

was not obtained in compliance with the Fourth and Four-

teenth Amendments.

An annotation in 10 A.L.R. 3d, page 314, entitled "Law-

' fulness of Search of Motor Vehicle Following Arrest for

Traffic Violation," contains references to many lower

court decisions dealing with the general subject of such

searches. Although there was no testimony offered at

the suppression hearing of any traffic violation committed

by the petitioner, the Tennessee Court of Criminal Appeais'

opinion mentions that the operation of the car on the high-

way at night without lights was in fact an offense committed

in the officers’ presence, and, therefore, the reason for

petitioner making reference to this annotation. At pages

339 and 340 of that annotation in a discussion of McCurdy

v. State, (1965) 42 Ala. App. 646, 176 So. 2d 53, the fol-

lowing pertinent statement is made:

UCR Oe eT Ts 7 ESR TES ILS RG IPE NT Tae NE EP ant ant em PEEP LET AIEEE RRP On eb NE ea oes HOt

12

‘The court added that the search of the trunk of defend -

ant's automobile could not be justified on the ground

that the officer was looking for weapons of escape, and

the search was quite obviously not for the purpose of

disarming a prisoner or preventing an escape, but was

for the purpose of a general exploration for whatever

might turn up. It was further observed that it did not

appear what crime defendant committed, and the court

could not assume that he committed a crime of which

there were fruits or implements subject to seizure,

and that to justify a search and seizure as incidental

to a lawful arrest, it must appear that the search and

seizure had some reasonable relation to the offense

for which the arrest was made."

The Court of Criminal Appeals of Tennessee in its

relatively short Opinion, consisting of only three pages

and citing only three cases in support of its Opinion affirm -

ing the conviction, seems to place particular emphasis on

the fact that after the petitioner had alighted from his car

and approached the officers’ cruiser, that he was wring-

ing his hands and nervously puffing on a cigarette. While

the Tennessee appellate courts in its decision did not dis -

cuss the "furtive’ movement or gesture theory as justify -

ing the search, it perhaps would be relevant to a proper

determination of its validity in this case. An annotation

on that subject is contained in 45 A.L.R. 3d, Page 581,

in which the principal case preceding the annotation is that |

of People v. Superior Court of Yolo County, (1970) 3 Cal.

3d 807, 91 Cal. Rptr. 729, 478 P.2d 449, and at page 580

in Vol. 45 of A.L.R. 3d, the following appropriate state -

ment is made: "But a search ‘prompted by a general curi-

osity to ascertain what, if anything, was within the defend-

ant's vehicle’ (People v. Cruz, (1968) supra, 264 Cal.

App. 2d 437, 441) is manifestly exploratory in nature, and

violates both the letter and the spirit of the Fourth Amendment."

See bas

13

From a review of the many cases on the subject of motor

vehicle searches, it thus appears that at least two condi-

tions must be present before the search of a motor vehicle

may be legally justified without a warrant, the first of

which is that of probable cause, which has been defined

as knowledge of facts justifying a reasonably prudent per -

son in believing that a crime has been or is being committed,

and that evidence thereof is contained in the automobile in

question, People v. Erickson, (1964) 31 Ill. 2d 320, 201

N.E,2d 422; and the second of which is that there must

be exigent circumstances present which Webster defines

as "requiring immediate aid of action." In that connection,

let us examine the circumstances which initially confronted

the searching officers in the present case:

On a Sunday night in December, 1972, in the nighttime,

tv7o deputies on routine patrol in a rural area observed a

motor vehicle approximately two hundred feet to their front

with only its parking lights on, backing into a private drive -

way. By the time they arrived to the location, the motor

vehicle is stopped some fifteen to twenty feet off the public

highway, and the occupant of that vehicle walks down to the

stopped cruiser and inquires if anything is wrong. Neither

of the deputies knows the person, no report has been re-

ceived regarding the automobile being stolen, or of it con-

taining contraband or stolen property, but based apparently

only on the nervous mannerisms of the defendant, one of

the deputies decides to take a further look into the auto-

mobile by walking the approximately twenty feet up the

private driveway to it, and either by opening the door or

shining his flashlight through the car window, he discovers

what to him appears to be unusual items of personal prop-

erty. The occupant is then detained by the two deputies

until their superior arrives, and the superior upon observ-

ing the situation places the person under arrest for "in-

SEAS PNY Si Tarte ER re

MEER ATER WEIR PEIRCE HA Yager aIRR NRT fie

PA de ae Poe CW

PEPIN VT a Om OR NMI

14

vestigation". Prior to the first deputy walking the dis -

tance from the public road to search the petitioner's

vehicle, what reason or probable cause of any criminal

activity did he have knowledge of at that time? Based

solely on his feeling from the so-called nervous manner -

isms of the petitioner, would he have been then able to

obtain from a neutral magistrate a search warrant for

that motor vehicle? Petitioner submits that the obvious

answer to that question would be "no". All of the cases

seem to agree that a general exploratory search is to be

condemned, notwithstanding that it may satisfy the curi-

osity of the officer and even bear out his suspicions by

being contraband or some other evidence of crime being

discovered as a result of such curiosity. However,

neither an arrest nor a search, otherwise unlawful, may

be validated by what it produces, Wong Sun v. United States,

(1963) 371 U.S. 471.

But probable cause should not be based on any sixth

sense that some law enforcement officers might possess,

nor upon mere suspicion of possible criminal activity.

The Carroll opinion, supra, pointed out, as in all searches,

there must be probable cause to believe “that the contents

of the automobile offend against the law..." 267 U.S, at

page 156.

It is further submitted by the petitioner that the "plain

view" doctrine, as recognized and discussed by this Court

in some cases, is simply not applicable to the present case

because the seized items were not in plain view, but were

discovered by the searching officers taking affirmative

steps in the nighttime, off of the public highway onto pri-

vate property, and shining their flashlights into petitioner's

vehicle, and thereafter seizing said items, all of such

actions being inconsistent with the requirements necessary

for the application of the "plain view" doctrine.

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15

The only conclusion to be drawn from the actions of the

officers from the time their attention was first drawn to

the petitioner's motor vehicle until their discovery of the

items in it which later turned out to be stolen is that they

just felt like "something fishy was going on" and so they

went fishing and discovered the evidence upon which this

conviction was based, "Fishy" and suspicious circum-

Stances standing alone should not be the foundation for a

criminal prosecution such as this which has resulted in a

penitentiary sentence of not less than three nor more than

ten years for the petitioner. There is not present in this

case either probable cause or exigent circumstances, both

of which are required before a warrantless search of a

motor vehicle may be validly conducted. Petitioner,

therefore, contends that from a thorough examination of

the circumstances surrounding the search of his motor

vehicle, the only reasonable conclusion to be drawn is that

the search and subsequent seizure of the evidence was un-

reasonable, and, therefore, clearly in violation of the

Fourth Amendment as applied to the states through the

Fourteenth Amendment to the United States Constitution.

NRE PRR Ee Ee NE ERT ETS AN REI IRAN aren: NRE ae

16

vil

SUMMARY AND CONCLUSION

In summary, petitioner submits that only one logical

conclusion can follow from an analysis of the circumstances

under which the evidence was obtained that resulted in the

petitioner's conviction, namely, that it clearly resulted

from an unreasonable search in violation of the Fourth

Amendment to the United States: Constitution, and that,

therefore, the trial court committed prejudicial and re-

versible error in overruling petitioner's motion to sup-

press such evidence. Consequently, petitioner submits ~

that this Court should issue a writ of certiorari to the

Tennessee Court of Criminal Appeals, and thereafter re-

verse the Opinion of that Court and set aside the conviction

of the petitioner, or in the alternative award him a new

trial. :

Respectfully submitted,

HUGH F, LaRUE, Ill

Tenth Floor

Valley Fidelity Bank Building

Knoxville, Tennessee 37902

Telephone No. (615) 522-4191

“Attorney for Petitioner