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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for a Writ of Certiorari
- **Published:** January 1, 1973

## Text

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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

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5

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.

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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

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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-

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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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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

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