Petition for Writ of Certiorari — Dunbar v. Florida

_ ——-"-— Vr oeeS 2, 2S, ED ' . — ee |

in the

Supreme Court +

of the

Ginited States

OCTOBER TERM, 1974

NO. 74-422

JOHN E. DUNBAR III,

Petitioner,

v8.

STATE OF FLORIDA,

Respondent.

Petition for a Writ of Certiorari to the District Court of

Appeal, Fourth District, West Palm Beach, Fla.

Robert C. Stone

Sheldon Schapiro

STONE AND SCHAPIRO

3201 Criffin Road

Fort Lauderdale, Florida 33312

Attorneys for Petitioner

MIAMI REVIEW — 371-4853 — 377-3721

INDEX

Page

JUDGMENT AND OPINION OF THE COURT

BELOW 2

JURISDICTION OF THIS COURT 2

QUESTION PRESENTED FOR REVIEW 2

CONSTITUTIONAL AMENDMENTS

INVOLVED 3

STATEMENT OF CASE 3

REASONS RELIED ON FOR THE ALLOWANCE

OF THE WRIT:

I. Petitioner’s constitutional rights as guaran-

teed under the Fourth and Fourteenth

Amendments, as interpreted by this Honor-

able Court, were violated because the search

and seizure of evidence from the petitioner’s

vehicle was not based on sufficient probable

cause, and was made without the benefit of

a valid search warrant

eo)

IJ. Even assuming that the arresting officer had

probable cause to stop the petitioner’s vehicle,

the petitioner’s constitutional rights under

the Fourth and Fourteenth amendments were

violated by the failure of the arresting

officer to obtain a search warrant prior to

searching and seizing the evidence from the

trunk of the petitioner’s vehicle 14

IT

INDEX (‘cont.)

Page

CONCLUSION 20

APPENDICES

App.

A. Order of the Supreme Court of Florida

dated June 4, 1974 1

B. Order of the Supreme Court of Florida

dated July 16, 1974 3

C. Orders of the District Court of Apnea! of

the Fourth District of Florida 4,5

D. Judgment of the Broward County Circuit

Court dated April 6, 1973 6

E. United States Constitution

Fourth Amendment 7

Fourteenth Amendment 7

in the

Supreme Court

at the

Gnited States

OCTOBER TERM, 1974

NO. 74-422

JOHN E. DUNBAR III,

Petitiener,

vs.

STATE OF FLORIDA,

Respondent.

Petition for a Writ of Certiorari to the District Court of

Appeal, Fourth District, West Palm Beach, Fla.

PETITION FOR A WRIT OF CERTIORARI

TO: THE HONORABLE CHIEF JUSTICE AND ASSO-

CIATE JUSTICES OF THE SUPREME COURT OF

THE UNITED STATES.

Petitioner, JOHN E. DUNBAR III, through his attor-

neys, Stone and Schapiro, prays that a Writ of Certiorari be

2

issued to review the judgment of the Supreme Court of the

State of Florida, entered on June 4, 1974, and rehearing

denied on July 16, 1974, thereby affirming the judgment

of the Fourth District Court of Appeals of the State of

Florida, which affirmed the judgment of the Circuit Court

of Broward County, Florida, placing the petitioner on

probation for a period of six (6) years, with the first year

to be spent in the Broward County Jail. Said Order was

entered on April 6, 1973.

JUDGMENT AND OPINION OF THE COURT BELOW

The Order of the Supreme Court of Florida, on June 4,

1974, and July 16, 1974, is set ont in Appendix A & B

attached to this Petition. The Order of the District Court

of Appeal for the Fourth District of Florida is set out in

Appendix C attached to this Petition. The judgment of the

Broward County Circuit Court dated April 6, 1973, is set

out in Appendix D attached to this Petition.

JURISDICTION OF THIS COURT

1. The date of judgment to be reviewed was entered

by the Supreme Court of Florida on July 16, 1974. This

Petition is filed within the ninety days of said Order.

2. The jurisdiction of this court is invoked under

Title 28 U.S. Code, See. 1257 (3) and Rule 19 (1) of the

‘ules of this Court.

QUESTION PRESENTED FOR REVIEW

Were the Petitioner’s Constitutional rights guaranteed

to him under the Feurth Amendment to the United States

3

Constitution, as made applicable to the State of Florida

by the Fourteenth Amendment to the United States Con-

stitution, when the trial court refused to grant the Peti-

tioner’s motion to suppress evidence seized from a vehicle

in which he was a passenger.

CONSTITUTIONAL AMENDMENTS INVOLVED

Fourth Amendment to the United States Constitution,

and the Fourteenth Amendment to the United States Con-

stitution. The pertinent provisions are set out in Appendix

E of this Petition.

STATEMENT OF CASE

On August 10, 1972, Petitioner and one Laurie Squire

were charged with possessing more than five grams of

marijuana, occurring on August 7, 1972. In addition to

this charge, your petitioner was charged with the mis-

demeanor of “intoxication”. On September 26, 1972, a

motion to suppress was filed. In addition, your petitioner

filed a motion seeking the disclosure of identity of the

confidential informant. On January 26, 1973, the Court

denied the motion to suppress, and refused to require the

State to reveal the identity of the confidential informant.

On February 1, 1973, Petitioner changed his plea from

Not Guilty to Nolo contendere, but reserved his right to

appeal the Court’s denial of his motion to suppress. On

April 6, 1973, Petitioner was sentenced to six (6) vears

probation, with the first year to be served in the Broward

County Jail.

The first witness called by the State on January 26,

1973, at the movion to suppress evidence hearing was Agent

4

William D. Buchanan of the Bureau of Customs. Agent

Buchanan stated that at 7:00 or 7:30 P.M. on August 7,

1972, he met officers of the Pembroke Park Police Depart-

ment, at Denny’s Restaurant, near the Holiday Trailer

Park, in Pembroke Park, Florida (Tr. 11-14). Agent

Buchanan advised the officers that he had information that

a large quantity of marijuana would be delivered inside

the trailer park that night, in some motor homes (Tr. 14).

Agent Buchanan stated that he was advised by a confiden-

tial informant that three of these motor homes, one of

which was an “Explorer”, would go out of the park one

at a time. When they returned, they would each contain a

large quantity of marijuana to be delivered to a group of

people who were staying in these motor homes at that

trailer park (Tr. 15). Agent Buchanan stated that he had

received information in the past from the informant which

had proven reliable, and that he had been in contact with

him for approximately five years (Tr. 17-18). The Agent

stated that he first received information about the ship-

ment of marijuana to the trailer park in early July, but

did not recall the exact date (Tr. 18). The last report the

Agent had with the informant was on August 7, 1972,

in the afternoon. In this report the Agent was told that

the shipment was in, and would be delivered that night

(Tr. 19).

Shortly after the meeting at Denny’s Restaurant, the

Pembroke Park officers with Agent Buchanan teok up

surveillance outside the Trailer Park (Tr. 21). At 8:30

or 9:00 P.M., the first camper left, and returned some

thirty or forty minutes later (Tr. 22). During this time,

the witness was behind a gas station, and was in radio

communications with Agents Mason and Burton, who were

inside the trailer park in a Volkswagen Camper (Tr. 23).

a

The agents in the park advised Agent Buchanan that pack-

ages were taken out of the motor homes and placed in the

trunk of two vehicles (Tr. 34). The witness forgot the

description of the vehicles, but believes that one was a

Ford (Tr. 34). The witness believed that the other vehicle

was a Dodge, but his memory was “hazy” (Tr. 35). Agent

Buchanan advised Lieutenants LoBiando and Lees that

he had been advised that the bags had been placed in the

vehicles (Tr. 36). The witness was informed that a woman

was driving one of the vehicles, and that the vehicle had

a male occupant (Tr. 37}. One of the vehicles went to

Miami Beach, and the other was stopped by Lieutenant

Lees on I-95 (Tr. 37). The activity described to the wit-

ness by the agents in the Volkswagen was that people

were going in and coming from various campers, and that

they were moving gunnysacks into the trunks of the vehicles

(Tr. 38). Lt. Lees saw one of the vehicles leave the park

and stopped it.

On cross examination, the witness stated that Lieu-

tenant Lees stopped the Ford on I-95, and that the Dodge

that went to Miami Beach was also stopped and marijuana

seized (Tr. 42). When the witness was asked how many

arrests were made as a result of information given to

him by the confidential informant, the witness said he did

not know. He then stated that it would be more than ten

but less than fifty (Tr.43). The informant has never

testified in court for Agent Buchanan. The witness was

not positive whether or not the informant had ever been

arrested. (Tr. 44). When asked how the informant got

his information on this case, Agent Buchanan stated that

he wasn’t in a position to know. When defense counsel

attempted to pursue this line of questioning of how the

informant obtained his knowledge in this case, the prosecu-

6

tor objected, and the court sustained the objection (Tr.

46). At the night in question, there were between 50-75

trailers in the trailer park. Agent Mason stated that his

confidential informant did not tell him that John Dunbar

was going to be a passenger in a car, and that the trunk

would contain marijuana (Tr. 51).

Lieutenant Lees testified that he was on surveillance

with Agert Buchanan behind the gas station, starting at

about 7:30 P.M. (Tr. 60-61). Lt. Lees stated that he re-

ceived a radio message that bags of marijuana were being

loaded into a Dodge Polara that was getting ready to leave

the trailer park. The time of this communication was ap-

preximately 3:15 or 3:30 in the morning (Tr. 61-62). Lt.

Lees was advised to stop the vehicle by Lt. LoBiando, who

was in charge ‘Tr. 62). The witness observed the Dodge

make a turn. It was approximately 3:00 in the morning,

and no other vehicles were on the highway at the time

(Tr. 65). Lt. Lees then stated that he observed the Dodge

make a left hand turn from the center lane of Hallandale

Beach Blvd. (Tr. 66). Lt. Lees hit the siren and put on

the blue light, and the vehicle stopped (Tr. 66). The driver

was a female named Laurie Squire, and the petitioner

Was a passenger (Tr. 67). The driver showed Lt. Lees her

Driver’s License, and in the witness’ opinion “was under

the influence of something.” (Tr. 70). Lt. Lees did not

detect an odor of alcohol, and concluded that she had been

doing something (Ty. 71). The driver was placed under

arrest for making an improper left turn, and driving while

under the influence of intoxicating liquor or narcotic drug,

‘Tr. 71). Lt. Lees then asked the passenger to step out,

and the passenger showed him a rental agreement bearing

his name ‘Tr. 72), Lt. Lees claimed that the petitioner

was bare-chested, and had on no shirt. The shirt was

7

draped over the front seat. The witness stated that he

detected a strong odor of marijuana coming from the

shirt (Tr. 73). At this time Lt. Lees placed the petitioner

under arrest for drunkenness, because he looked like he

hadn’t slept in five days, and shouldn’t have been in public

(Tr. 73). Lt. Lees handcuffed the petitioner and the driver,

and pvt them in the police car (Tr. 73). After the petitioner

was placed under arrest, Lt. Lees searched him and found

$1,600.00. Lt. Lees then opened the trunk of the vehicle

with a key found in Miss Squire’s purse, and found mari-

juana (Tr. 74). The marijuana was contained in burlap

bags, which in turn were wrapped in green garbage bags.

There were 40 bags weighing 40 lbs. apiece (Tr. 74). A

blue suitcase was also found in the trunk. The witness

opened the suitcase and also found a quantity of mari-

juana (Tr. 75). Lt. Lees also took the shirt in the front

seat which smelled from marijuana.

On cross examination, Lt. Lees stated that at the time

he conducted the search of the Dodge, that both the peti-

tioner and the driver were handcuffed in his police car.

A Hallandale police officer was standing guard over the

pair, and the witness did not feel that he was in any danger

(Tr. 78). Lt. Lees admitted that he really wasn’t inventory-

ing the car, that he was looking for grass (Tr. 78). Lt.

Lees then called the wrecker, and had Sgt. Barbieri go

with the wrecker driver to the police station. The officer

admitted that he would have searched the car no matter

what the occupants would have done. The inventory had

nothing to do with it; the witness stated that he was out

to search the car (Tr. 80). Lt. Lees further admitted that

he had made a statement at a Discovery deposition taken

December 21, 1972, that if the driver hadn’t made any

improper traffic violation, that he would have stopped the

8

car anyway (Tr. 81). Lt. Lees further admitted that he

was intending to stop the vehicle before the traffic viola-

tion (Tr. 83). Lt. Lees said that he was told to stop the

vehicle (Tr. 84). The witness stated that he heard over

Agent Buchanan’s radio, from agents secreted in the

bushes, that the marijuana was being loaded with grass.

It was Lt. Barbieri that instructed Lt. Lees to stop the

Dodge ‘Tr. 85), The wi:ness stated thet he had no personal

knowledge as to what was transpiring, and had no reason

to stop the car, other than what he was told (Tr. 86).

Lt. Lees reiterated the fact that the petitioner was not

Wearing a shirt that night (Tr. 91).

The Petitioner, JOHN DUNBAR, testified that at

the night in question, that he was not intoxicated (Tr. 96).

He further stated that he was wearing a shirt on that

evening (Tr. 97). Petitioner stated that as soon as the

officer turned on his light and siren, that the driver of his

car pulled over to the side (Tr. 98). The driver had a

license, and he had the registration for the car (Tr. 98).

The petitioner further stated that the arresting officer

told him to empty his pockets, and at this time another

police car pulled up (Tr. 99).

The last witness on the motion to suppress was Officer

Jack Barbieri. The witness stated at the night of the arrest,

that the petitioner was wearing a flowered shirt (Tr. 108).

The witness believed that the stop was made at about

4:00 in the morning. On cross examination, the witness

stated that he was certain that the petitioner had on a

shirt +Ty. 112 and 114). The driver of the vehicle was

placed under arrest at the time for driving under the in-

fluence and improper left turn, and the petitioner was

placed under arrest for drunkenness (Tr. 112). Officer

9

Barbieri stated that Lt. Lees made an “inventory” of the

vehicle’s contents, after the vehicle’s occupants were

arrested (Tr. 113) and placed in the police car (Tr. 114).

The agents who allegedly observed the marijuana being

loaded into petitioner’s vehicle did not testify, and no

reason was given for their failure to testify.

REASONS RELIED UPON FOR THE

ALLOWANCE OF THE WRIT

I

PETITIONER’S CONSTITUTIONAL RIGHTS

AS GUARANTEED UNDER THE FOURTH

AND FOURTEENTH AMENDMENTS, AS IN-

TERPRETED BY THIS HONORABLE COURT,

WERE VIOLATED BECAUSE THE SEARCH

AND SEIZURE OF EVIDENCE FROM THE

PETITIONER’S VEHICLE WAS NOT BASED

ON SUFFICIENT PROBABLE CAUSE, AND

WAS MADE WITHOUT THE BENEFIT OF A

VALID SEARCH WARRANT.

The questions posed by your petitioner was (1) Did

Lt. Lees have sufficient probable cause to stop the peti-

tioner’s vehicle; and (2) was the warrant requirement of

the Fourth Amendment violated, by the search cf the trunk

of your petitioner’s vehicle without a magistrate first de

termining by an affidavit under oath that probable cause

existed to search the vehicle.

An integral part of the first question is whether or

not the identity of the informant should have been disclosed

to the petitioner, as per his motion. In McCray v. Illinois,

10

386 U.S. 300, 18 L.Ed. 62, 87 S.Ct. 1056 (1967), this Court

refused to require the identity of an informant to be dis-

closed where the informant stated that the petitioner was

selling narcotics, and had narcotics on his person, and

could be found in a certain location at a certain time. The

arresting officers had observed the petitioner, and had the

informer point out the petitioner to them. The officers

testified in great detail as to the informant’s S past reli-

ability, in that he had the names of the people who were

convicted as a result of the informant’s testimony. The

Court in McCray, supra, distinguished the fact situation in

Beck v, Ohio, 3798 U.S. 89, 13 L.Ed.2d 142. 85 S.Ct. 142,

which more closely resembles the facts of the case sub

judice, and found that the testimony of each of the officers

informed the court of “the underlying circumstances from

which the informant concluded that narcotics were where

he claimed they were, and some of the underlying cir-

cumstances which the officer concluded that the informant

was credible or his information was reliable.” Aguilar vs.

Texas, 378 U.S. 108, 114, 12 L.Fd.2d 723, 729, 84 S.Ct. 741.

The Court in McCray goes on to say at 386 U.S. 311, 18

L.Ed.2d 71: “As we said in United States v. Ventresca,

380 U.S, 102, 108, 13 L.Ed.2d 684, 688, 85 S.Ct. 741. we

have recognized that ‘an affidavit may be based on hear say

information and need not reflect the direct personal ob-

servations of the affiant,’ so long as the magistrate is

‘informed of some of the underlying circumstances’ sup-

porting the affiant’s conclusions and his belief that any

informant involved ‘whose identity need not be disclosed

* was ‘eredible or his information reliable’.” Aguilar i,

Rea supra.

In the case sub judice, agent Buchanan did not give

any testimony as to the underlying circumstances from

11

which the informant concluded that narcotics were where

he or she claimed, namely the trailer park. The agent also

did not testify in any detail as to that the informant was

credible and his information reliable. The agent did not

know if the information from the informant resulted in

10 or 50 arrests. When defense counsel sought to question

the agent as to these “underlying circumstances”, the

prosecutor objected, and the court sustained his objection.

Nothing in Agent Buchanan’s testimony as to what he was

told by the informant in any way related to your petitioner,

or the fact that cars were going to be used to trans-ship

the marijuana. The alleged statement of the undisclosed

informant is the cornerstone of the State’s claim of prob-

able cause. The non-disclosure of the informant’s identity

results in unfairness to the petitioner, as demonstrated in

the Federe! Rules of Evidence, 24 L Edd crrlit, Rule

510(3): “One of the acute conflicts between the interest

of the public in nondisclosure and avoidance of unfairness

to the accused as a result of nondisclosures arises when

information from an informer is relied upon to legitimate

a search and seizure by furnishing probable cause for an

arrest without a warrant or for the issuance of a warrant

for arrest or search.” McCray v. Illinois, 386 U.S. 300, 87

S.Ct. 1056, 18 L.Ed.2d 62 11967), rehesring denied 3865

U.S. 1042. A hearing in camera provides an accommodation

of these conflicting interests. U.S. 7. Jackson, 384 F.2d

825 (3d Cir. 1967). The limited disclosure of the judge

avoids any significant impairment of secrecy, while afford-

ing the accused a substantial measure of protection against

arbitrary police action. The procedure is consistent with

McCray and decisions there discussed. Because of the

failure of the testimony of the State’s witnesses to meet

the two-pronged “Aguilar” test as stated in McCray, supra,

12

this cause should be remanded to the trial court for an in

camera hearing to resolve the question of the disclosure

of the informant’s identity. \

Agent Buchanan’s testimony fails to meet the ‘guide-

lines’ set out by the opinion of this Court in Aguilar, supra,

and Spine!li v. United States, 393 U.S. 410. 21 L.Ed.2¢ 637,

89 S.Ct. 584 (1969). The mere fact that the search in

question was without the benefit of a warrant, does not

make this standard less stringent. This was made amply

clear in Whitley v. Warden of Wyoming Penitentiary,

401 U.S. at 566, and 28 L.Ed.2d at 312, and United States

v. Ventresca, 380 U.S. at 110-111, 12 L.Ed.2d 725, 726, and

Jones vs. United States, 362 U.S. at 270, 271, 4 L.Ed.2d at

707, 708. Prior to Lt. Lees stopping the petitioner’s vehicle,

the only evidence of criminal activity at the trailer park,

outside of the informant’s statement to Agent Buchanan,

is the statement of some unidentified agent at the trailer

park, that marijuana is being loaded from the motor homes

into three vehicles. The agents in the park, for some unex-

plained reason, did not testify at the motion to suppress.

No underlying basis was stated on how they concluded that

the bags being loaded from the motor homes into the

trunks of the autos were marijuana. From the testimony

of the petitioner, the bags were wrapped first in burlap

and then in plastic garbage bags. It is clear from the

testimony that the agents and Lt. Lees assumed that the

bags being loaded from the motor homes into the trunk

of the petitioner’s vehicle was marijuana. This court has

never allowed such assumptions and suspicions to be ele-

vated to the level of “Probable Cause.” Spinelli vs. U.S.,

supra, at 593 U.S. 418, 21 L.Ed.2d 645, states: “But just

as a simple assertion of police suspicion is not itself a

sufficient basis for a magistrate’s finding of probable

13

cause, we do not believe it may be used to give additional

weight tc allegations that would otherwise be insufficient.”

The facts of the case sub judice are strikingly similar

to Henry v. United States, 361 U.S. 98, 4 L.Ed.2d 134, 80

S.Ct. 168 (1959). The Court states at 361 U.S. 103, and 4

L.Ed.2d 134: “The prosecution conceded below and adheres

to the concession here, that the arrest took place when the

federal agents stopped the car. That is our view of the

facts of this particular case. When the officers interrupted

the two men and restricted their liberty of movement, the

arrest, for purposes of this case, was complete. It is, there-

fore, necessary to determine whether at or before that

time they had reasonable cause to believe that a crime had

been committed. The fact that afterwards contraband was

discovered, is not enough. An arrest is not justified by

what the subsequent search discloses, as Johnson v. United

States, 333 U.S. 10, 92 L.Ed. 436, 68 S.Ct. 367, supra,

holds.” *** On the record, there was far from enough evi-

dence against him to justify a magistrate in issuing a

warrant. So far as the record shows, petitioner had not even

been suspected of criminal activity prior to this time. Riding

in a car, stopping in an alley, picking up packages, driving

away — these were all acts that were outwardly innocent.

Their movements in the car nad no mark of fleeing men or

men acting furtively. *** What transpired at or after the

time the car was stopped by the officers is, as we have said,

irrelevant to the narrow issue before us. To repeat, an

arrest is not justified by what the subsequent search dis-

closes, under our system suspicion is not enough for an

officer to lay hands on a citizen. It is better, so the Fourth

Amendment, teaches, that the guilty sometimes go free

than that citizens be subject to easy arrest.

14

The fact that the suspects were in an automobile is

not enough. Carroll v. United States, supra, liberalized the

rule governing searches when a moving vehicle is involved.

But that decision merely relaxed the requirements for a

warrant on grounds of practicality. It did not dispense

with the need for probable cause.

Lt. Lees intended to stop the car containing the peti-

tioner at the time the vehicle left the trailer park. There-

fore, probable cause must be determined at the time the

vehicle is stopped, not subsequent to the arrest of the peti-

tioner. The state may not benefit from the fruits of an

illegal search and seizure. Wong Sun v. United States, 371

U.S. 471, 9 L.Ed.2d, 441, 83 S.Ct. 407 11963).

II

EVEN ASSUMING THAT THE ARRESTING

OFFICER HAD PROBABLE CAUSE TO STOP

THE PETITIONER’S VEHICLE, THE PETI-

TIONER’S CONSTITUTIONAL RIGHTS UN-

DER THE FOURTH AND FOURTEENTH

AMENDMENTS WERE VIOLATED BY THE

FAILURE OF THE ARRESTING OFFICER

TO OBTAIN A SEARCH WARRANT PRIOR

TO SEARCHING AND SEIZING THE EVI-

DENCE FROM THE TRUNK OF THE PETI-

TIONER’S VEHICLE.

This court has long held in decisions interpreting the

Fourth Amendment that with a few narrow exceptions,

that searches and seizures without a search warrant, were

not justified by the searching officer’s knowledge of in-

formation which may amount to probable cause. The war-

15

rant requirement is basic to the protection of the right of

privacy, the burden is on those seeking the exception, to

show the need for it. Coolidge v. New Hampshire, 403 U.S.

443, 29 L.Ed.2d 564, 91 S.Ct. 2022 (1971) ; Katz v. United

States, 389 U.S. 347, 19 L.E-d.2d 576, 88 S.Ct. 507 11¢67).

The petitioner was arrested for drunkenness and the driver

was arrested for an “illegal left turn and driving under

the influence of something.” The arresting officer admitted

that he intended to stop the vehicle at the time it left the

trailer park. At the time the vehicle was searched, the

petitioner and his companion were not in their vehicle,

but were handcuffed, and under guard in the police cruiser.

Lt. Lees testified that he searched the trunk in order to

inventory the contents of the trunk. He admits on cross

examination, that this “inventory” was not to protect the

property of the petitioner or his companion, but was for

the purpose of discovery of evidence of a crime, namely

possession of marijuana.

The cases relating to the exzeptions to the warrant

requirement of the Fourth Amendment, as handed down

by this Court, have been close decisions, which have been

narrowly drawn to the facts in each case. There is a

danger that the so-called “auto exception” to the warrant

requirement, may become the rule.

As this court stated in Almeida-Sanchez v. United

States, 413 U.S. 266, 37 L.Ed.2d 596, 93 S.Ct. 2535 (1973),

Note 2 at 37 L.Ed.2d 691:

“Neither Carrol, supra, nor other cases in this

court require or suggest that in every conceivable

circumstance the search of an automobile even

with probable cause may be made without the

14 PPAR I TTY Shah =

—

16

extra protection for privacy that a warrant af-

fords.” Chambers v. Maroney, 399 U.S. at 50, 26

L.Ed.2d 419. See also Coolidge v. New Hampshire,

405 U.S. 443, 458-464, 29 L.Ed.2d 564, $1 S.Ct.

2022.”

As stated in Coolidge v. New Hampshire, supra, at

403 U.S. 461, 29 L.Ed.2d 580:

“The word ‘automobile’ is not a talisman in whose

presence the Fourth Amendment fades away and

disappears. And surely there is nothing in this

case to invoke the meaning and purpose of the

rule of Carroll v. United States— no alerted

criminal bent on flight, no fleeting opportunity

on an open highway after a hazardous chase, no

contraband or stolen goods or weapons, no con-

federates waiting to move the evidence, not even

the inenmnvenience of a special police detail to

guard the immobilized automobile. In short, by no

possible stretch of the legal imagination can this

be made into a case where ‘it is not practicable

to secure a warrant,’ Carrol!. supra, at 153, 39

L.Ed. 790, and the ‘automobile exception,’ despite

its label, is simply irrelevant.”

It is obvious that the “exigent circumstances” this

court found to exist in Chambers v. Maroney, 399 U.S. 42,

26 L.Ed.2d 419, 90 S.Ct. 1975 11970). The petitioner’s com-

panion had not tried to flee from the officer when notified

to stop; at the time Lt. Lees searched the trunk of the peti-

tioner’s vehicle, the officer stated that he was in no danger;

another police unit was present on the scene; the petitioner

and his companion were safely handcuffed and locked in

17

the police cruiser. The automobile exception is simply ir-

relevant to the present fact situation. The fact the officer

did conduct the search of the highway clearly demonstrates

the lack of exigent circumstances.

It is clear from Preston v. United States, 876 U.S. 364,

368, 11 L.Ed.2d 777, 84 S.Ct. 881 (1964), that a search

of the accused and things under his immediate control may

be made contemporaneous with the arrest, in order to pre-

vent the accused irom seizing a weapon or destroying evi-

dence of the crime for which he is being arrested. Once

the accused is under arrest and in custody, then a search

made at another place, without warrant, is simply not

incidenc to the arrest. At the time -f the arrest in the

case sub judice, the petitioner was not in the Dodge, but

had been previously searched and handcuffed and locked

in a police cruiser, under additional police guard. At that

point there was no danger that they could have used any

weapons in their vehicle, or could have destroyed any

evidence of the crime of “making an illegal left turn, driv-

ing under the influence of something, or drunkenness.” In

Preston, supra, the petitioners were arrested for “vagren-

cy’. In both cases, it was obvious that the charges lodged

were mere subterfuges to conduct an exploratory search

for incriminating evidence of a crime other than the one

for which the parties were arrested. In-Preston, this Court

held that the search of the petitioner’s vehicle was not

incident to a lawful arrest, and was unreasonable for lack

of a valid search warrant. The search in the present case

should have been declared to be unreasonable by the trial

judge, as not incident to a valid arrest.

In Cady v. Dombroski, 413 U.S. 433, 37 L.Ed.2d 706,

93 S.Ct. 2535 (1973), this court found th- warrantless

|

LON ELIEE BOE ER MANE AE ATS LR

Rk < . SN

S inie ty, cae eel

18

search of the trunk of a disabled vehicle belonging to a

police officer to be reasonable, because the seaich of the

trunk was to retrieve a revolver which to protect the public

from the possibility that the revolver would fall into un-

trained or malicious hands. The officer were not search-

ing for incriminating evidence, and at the time did not

know that the crime in question had taken place. Such are

not the facts before the Court.

Officer Lees’ attempts to bring his search under the

inventory exception, as expounded by this court in Harris

v. United States, 2: 390 U.S. 224, 19 L.Ed.2d 1067, 88 S.Ct.

992 (1968). In Harris, the police came across incriminat-

ing evidence which was in plain view, while they were

making efforts to protect the petitioner’s property. Justice

Douglas in his coneurrine cpinion assumed that i’) cston

v. United States, supra, survived the Court’s opinion be-

cause the car was lawfully in police custody, and the police

were responsible for protecting the car; and while en-

gaged in the performance of their duty to protect the car,

and not engaged in an inventory or other search of the

ear, they came across incriminating evidence. Such are not

the facts in the case sub judice. Lt. Lees admits that he

was not trying to protect the 11‘ed car, but was search-

ing for incriminating evidence of a crime other than what

the petitioner was arrested for. It is obvious that the

driver and the petitioner were arrested so that the car

could be inventoried. This incident graphically illustrates

how the so-called “anto” or “Carrol” exception is becoming

the rule rather than the exception. Such police practices

are common and wide-spread throughout the country.

Cardwell v, Lewis, 41 1..Ed.2d 325 (1974), is not ap-

plicable to the present fact situation, because the evidence

LLL PLEAD LABS LIER DIL ALAA CEN SIM ares

19

seized from the petitioner’s vehicle was not in “plain view”,

and there is no doubt that there was a search and seizure

of incriminating evidence from the trunk of the petitioner’s

rented car. There has, therefore, been an invasion of the

petitioner’s right of privacy as protected vy the Fourth

and Fourteenth Amendments to the United States Con-

stitution. Such invasion was without probable cause; with-

out a search warrant; and did not come under any of the

narrow exceptions to the warrant requirements of said

amendments,

IRE RT SOR ea LONE

TSA PHN UT NTIS

DIST PRED PEE

20

CONCLUSION

It is respectfully submitted that. the matters here

presented deal with basic and fundamental constitutional

rights arising under the Fourth Amendment to the United

States Constitution. This petition deals with a question of

Federal law which has not been, but should be, clearly

settled by this Honorable Court.

Respectfully submitted,

ROBERT C. STONE &

SHELDON SCHAPIRO

Attorneys for the Petitioner

BY: /s/ Robert C. Stone

ROBERT C. STONE |

APPENDIX

APPENDIX A

SUPREME COURT OF FLORIDA

JANUARY TERM, A.D. 1974

TUESDAY, JUNE 4, 1974

CASE NO. 45,209

DISTRICT COURT OF APPEAL,

FOURTH DISTRICT

73-512

JOHN E. DUNBAR, III,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

This cause having heretofore been submitted to the

Court on Petition for Writ of Certiorari, jurisdictional

briefs and portions of the record deemed necessary to re-

flect jurisdiction under Florida Appellate Rule 4.5 ¢ (6),

and it appearing to the Court that it is without jurisdie-

tion, it is ordered that the Petition for Writ of Certiorari

be and the same is hereby denied.

ADKINS, C.J., ERVIN, BOYD, McCAIN and DEKLE,

JJ., coneur

App. .2

SMB

CC: Honorable Emmett J. Comiskey,

Clerk

(with copies for the Trial Judge

& Clerk)

Honorable Andrew I. Friedrich

Honorable Stanley L. Seligman

Honorable C. Marie Bernard

Honorable George Georgieff

A True Copy

TEST:

Sid J. White

Clerk Supreme Court

By: KAY D. GENT

Deputy Clerk

App. 3

APPENDIX B

| TITLE OMITTED]

On consideration of the Petition for Rehearing filed

by attorneys for the petitioner,

IT IS ORDERED by the Court that said petition be

and the same is hereby denied.

ADKINS, C.J., ERVIN, BOYD, MeCAIN and DEKLE,

JJ., concur

cc: Hon. Emmett J. Comiskey, Clerk

Hon. John B. Dunkle, Clerk

Trial Judge

Bailey and Friedrich

Hon. Stanley L. Seligman

Hon. C. Marie Bernard

Hon. George Georgieff

A True Copy

TEST:

Sid J. White

Clerk, Supreme Court

By: s Bernice L. Saunders

Chief Deputy Clerk

App. 4

APPENDIX C

IN THE DISTRICT COURT OF APPEAL OF THE

STATE OF FLORIDA FOURTH DISTRICT

JANUARY TERM 1974

CASE NO. 73-512

JOHN E. DUNBAR, III,

Appellant

Vv.

STATE OF FLORIDA,

Appellee.

MARCH 5, 1974.

ORDERED that appellant’s Petition for Rehearing,

filed February 1, 1974, is hereby denied.

A TRUE COPY

/s/ Emmett J. Comiskey

EMMETT J. COMISKEY

CLERK

ce: Bailey & Friedrich

Stanley L. Seligman, Esq.

Thomas M. Carney, Esq.