Memorandum — Beck v. United States

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

No. 74-1558

RICHARD BECK,

Petitioner,

v.

UNITED STATES OF AMERICA.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

PETITIONER’S SUPPLEMENTAL MEMORANDUM

DANIEL V. O'BRIEN

1250 Big Bend Boulevard

St. Louis, Missouri 63117

314 644-3366

Attorney for Petitioner

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

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IN THE

SUPREME COURT OF THE UNITED STATES |

OCTOBER TERM, 1974

é

No. 74-1558 j

RICHARD BECK,

Petitioner,

V.

UNITED STATES OF AMERICA.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

PETITIONER’S SUPPLEMENTAL MEMORANDUM

MEMORANDUM

In the petition, we had presented the conflict among the Cir-

cuits, and with the pronouncements of this Court in related

cases, and the reasoning of the Sixth Circuit herein. (Pet. 5, 6, 7).

Subsequent to the filing of the petition the District of Colu:nbia

Circuit had occasion to consider virtually identical facts sur-

rounding a warrantless search of an unoccupied motor vehicle.

Be

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United States v. Bradshaw, 515 F2d 360 (decided June 30,

1975). The D.C. Circuit adopted a position in direct conflict

with the Sixth Circuit, drawing a crucial distincton between

occupied and unoccupied vehicles. For the convenience of the

Court, we set forth in the Appendix pp. A-1-A-14, infra, the

District of Columbia Circuit's opinion in that case.

Respectfully submitted

DANIEL V. O'BRIEN

1250 Big Bend Boulevard

St. Louis, Missouri 63117

Area Code 314 644-3366

Attorney for Petitioner

Pana RENE et NEM iON LP OLIE NGL EOE PENOLA ADS

APPENDIX

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UNITED STATES of AMERICA, Appellant,

v.

Michael J. BRADSHAW and Vance E. Robinson, Appellee.

No. 74-1778.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 25, 1974.

Decided June 30, 1975.

An order of the United States District Court for the District

of Columbia, Joseph C. Waddy, J., suppressed certain items

seized by metropolitan police without a warrant from a parked

and occupantless automobile which had allegedly been used

as a getaway car in a bank robbery. The government appealed.

The Court of Appeals, Merhige, District Judge, held that un-

der circumstances, including the fact that the search occurred

on the morning of a business day when courts were open and

judicial officers were readily available and the fact that there

were three to ten police officers in the area, the trial court's

finding that there were no exigent circumstances to justify the

warrantless search was not clearly erroneous.

Affirmed.

1. Searches and Seizures key 7(5)

Though relaxation of certain Fourth Amendment standards

has been permitted in context of automobile searches and sei-

zures, the probable cause, neutral magistrate and warrant re-

quirements still have force in context of such a search. U.S.C.A.

Const. Amend. 4.

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es. ae

2. Searches and Seizures key 7(10)

When obtaining a warrant would unreasonably impair police

efficiency by precluding seizing of “fleeting instant” or else un-

reasonably burden effective law enforcement by requiring ex-

penditure of valuable resources in immobilizing and watching

a vehicle, Fourth Amendment countenances exception to war-

rant requirement. U.S.C.A.Const. Amend. 4.

3. Searches and Seizures key 7(10)

Rule of reason embodied in Fourth Amendment is flexible

enough to permit police officer with probable cause to search

an unoccupied automobile when prospect of mobility and bur-

den on resources occasioned by immobilizing the automobile

and posting guard to watch it create an emergency circumstance

or aggravate an already existing emergency. U.S.C.A. Const.

Amend. 4.

4. Searches and Seizures key 7(10)

If there is no extrinsic emergency arising out of factual situ-

ation facing law enforcement officers, or if threat of mobility

and prospect of unreasonable burden on resources do not in

themselves create exigency, then, even when there is probable

cause, Fourth Amendment mandates that police obtain warrant

before conducting search of an unoccupied automobile. U.S.C.A.

Const. Amend. 4.

5. Criminal Law key 1158(2)

Court of Appeals was not free to set aside trial court’s find-

ing, that there was no exigency rendering it impracticable for

police to obtain warrant before searching unoccupied auto-

mobile, unless record revealed trial court’s view of facts to be

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clearly erroneous, and where review of record and briefs did

not leave Court of Appeals with definite and firm conviction

that mistake had been committed, trial court's finding was af-

firmed. Fed.Rules Civ.Proc. rule 52(a), 28 U.S.C.A.: U.S.C.A.

Const.Amend. 4.

6. Searches and Seizures key 3.3(1)

Under circumstances, including fact that search of unoccu-

pied automobile occurred on morning of business day when

courts were open and judicial officers were readily available

and fact that there were three to ten police officers in area, trial

court’s finding that there were no exigent circumstances to

justify warrantless search was »,ot clearly erroneous. U.S.C.A.

Const.Amend. 4; Fed.Rules Civ.Proc. rule 52(a), 28 U.S.C.A.

Appeal from the United States District Court for the District

of Columbia (D.C. Criminal 239-74).

Jeffrey T. Demerath, Asst. U. S. Atty., with whom Earl J.

Silbert, U. S. Atty., John A. Terry, James F. Rutherford, and

James F. McMullin, Asst. U. S. Attys., were on the brief for

appellant.

Theodore J. Christensen, Washington, D. C. (appointed by

this Court), for appellee Robinson.

Before BAZELON, Chief Judge, WRIGHT, Circuit Judge,

and MERHIGE,* United States District Judge for the Eastern

District of Virginia.

Opinion for the Court filed by District Judge MERHIGE.

MERHIGE, District Judge.

* Sitting by designation pursuant to 28 U.S.C. § 292(d).

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The Government appeals from the District Court’s order sup-

pressing certain items—guns, money, clothing and other rele-

vant items—seized by the metropolitan police without a war-

rant from a parked and occupantless car that had allegedly

been used by appellee Robinson as the getaway car in a bank

robbery. We conclude that the District Court was not clearly

erroneous and affirm.

I

On the 21st of March, 1974, at about 11:15 a.m., a branch

of the American Security & Trust Company, a federally insured

institution, located at 822 East Capitol Street, N.E., Washington,

D. C., was robbed by four black males. Moments later a wit-

ness, Ms. Eleanor Leary, who was in the process of parking

her car near the intersection of 8th and A Streets, observed four

black men trotting north on 8th Street in her direction. Two

of them got into a two-toned tan luxury automobile (later identi-

fied as a Cadillac Eldorado) and departed the scene; one crossed

the street and fled in a second vehicle; and the fourth continued

his flight on foot. Alerted by the siren from a passing police car,

Ms. Leary approached two policemen who had arrived on the

scene and told them what she had seen. The police in turn re-

layed her information to the police communications office via

their squad car radio. The officers next escorted Ms. Leary to

the bank premises where she talked with several investigating

detectives and then took her home.

At approximately 11:20 a. m., officers Schlueter and Perkins,

who were on routine patrol at the intersection of 6th and K

Streets, N. E., received a flash message over their squad car radio

directing them to be on the lookout for a “tan luxury auto oc-

cupied by two Negro males, last seen heading north on 8th

Street, N.E.” The officers were told that the car was wanted in

connection with a possible bank robbery. Almost simultane-

SEGRE LILI OMIA SFE EAE P LE IOEITN LE SE BLD OED RENAE PNT |

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ously, the officers saw Robinson’s tan Eldorado Cadillac pass in

the opposite lane heading north. The officers turned their marked

squad car around and followed the Eldorado to 7th and Or-

leans Streets where it pulled over to the left curb of the street

and came to a halt. It was raining very hard that day and the

two suspects remained in the Eldorado for a few moments be-

fore alighting. Robinson, tls: driver, got out, looked over at the

Officers, smiled at them and then reached into the back seat

to get a coat which he put on. Robinson and the passenger,

who had no coat, then began walking south toward Morton

Place, N.E., where they met a third person. Robinson and this

third person walked into a house at 1111 7th Street, while the

passenger continued walking down Morton Place.

After the two suspects had departed, Officers Schlueter and

Perkins drove around the block and came up behind the El-

dorado where they noticed a cable wire hanging from the trunk,

which they took to be indicative of the trunk having been closed

in a hurry, so they decided to take a closer look. When they

looked through a window of the Eldorado, they saw a bundle

of clothing with a blue coat on top beneath the passenger seat.

At some point they tried to open the doors of the Eldorado but

found that they were locked. Thinking it odd that the passenger

had walked out into a heavy rain without putting on a coat,

they called for assistance, and parked in a nearby alley where

they could keep the car in sight.

Within fifteen minutes, a Detective Fontana and several others

arrived at the location of the vehicle. Detective Fontana testified

that when he arrived there were “about ten” police officers in the

vicinity of the car. (Tr. 14) Meanwhile, a Detective Kaclik and

an F.B.I. agent picked up Ms. Leary at her home and drove her

to Orleans Place where she positively identified the Eldorado as

one she had seen earlier. This identification was made approxi-

mately forty-five to fifty-five minutes after the robbery. (Com-

pare Tr. 18 with Tr. 107). Officer Fontana then called a Mo-

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bile Crime Lab for assistance in opening the vehicle. After the

arrival of the Mobile Crime Lab, Detective Fontana did not call

on the crime lab technician to open the doors of the vehicle, but

enlisted instead the aid of a young passer-by and paid him a dol-

lar to reach through a partially open window of the car and lift

the lock. With the car unlocked,’ Officer Alford of the Mobile

Crime Lab conducted a search of the passenger section and

found money and a revolver beneath the front seat. The car was

then taken to the Fifth District headquarters where the police

opened the trunk and found a carbine, money and a large purse-

type bag similar to one carried by the bank robbers. During his

search of the car, Officer Alford discovered a registered letter

bearing Robinson’s name and a nearby address. Police officers

went immediately to this address but found the apartment empty.

In an eight count indictment filed May 2, 1974, Robinson and

a co-defendant were charged with armed bank robbery, bank

robbery, armed robbery, robbery, assault with a dangerous wea-

pon, and Robinson was additionally charged with two counts of

carrying a dangerous weapon. Subsequently, on May 17, 1974,

Robinson filed a motion to suppress the fruits of the automobile

search.

On the basis of the facts just recounted, the District Court,

after hearings held on June 21 and 24, 1974, granted Robin-

son’s motion to suppress the evidence. While finding probable

cause to search it, nevertheless held the Government had failed

to prove sufficient exigency to justify the failure of the police to

obtain a search warrant and suppressed the fruits of the automo-

bile search.

1 The Eldorado was unlocked fifteen minutes after Ms. Leary’s

positive identification. (Tr. 22).

ESV LPL ELL EGIL SEEMS PILL ERI ONIN LON EE LEY ENE. FG BONS POE TES

II

[1] We start from the premise that law enforcement officers in

order to obtain legal validation of their efforts must still comply

with the requirements of the Fourth Amendment when con-

ducting a search of an automobile. While the Supreme Court

has permitted a relaxation of certain Fourth Amendment stand-

ards in the context of automobile searches and seizures, see

Cardwell v. Lewis, 417 U.S. 583, 589-90, 94 S.Ct. 2464, 41

L.Ed.2d 325 (1974), the probable cause, neutral magistrate and

warrant requirements still have force in the context of such a

search. There is no case which establishes the proposition that

law enforcement officers in “every conceivable circumstance”

may dispense with the warrant requirement in the context of an

automobile search. Chambers v. Maroney, 399 U.S. 42, 50, 90

S.Ct. 1975, 26 L.Ed.2d 419 (1970). “The word ‘automobile’ is

not a talisman in whose presence the Fourth Amendment fades

away and disappears.” Coolidge v. New Hampshire, 403 U.S.

443, 461-62, 91 S.Ct. 2022, 2035, 29 L.Ed.2d 564 (1971). In-

deed, the Government concedes as much. Appellant's Brief at 9.

[2] Nevertheless, the Fourth Amendment requirements have

been relaxed somewhat in the specific situation where the police

have probable cause to search a stopped automobile and cir-

cumstances make securing a warrant impracticable. The Court

has endorsed this more permissive approach on two grounds.

First, the cases delineate an “exigent circumstances” exception

to the warrant requirement founded upon judicial awareness of

an automobile’s mobility and the often “fleeting” opportunity to

conduct a search once probable cause has been obtained. Carroll

v. United States, 267 U.S. 132, 153, 45 S.Ct. 280, 69 L.Ed.

543 (1925); Dyke v. Taylor Implement Co., 391 U.S. 216, 221,

88 S.Ct. 1472, 20 L.Ed.2d 538 (1968); Chambers v. Maroney,

399 U.S. 42, 51, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). This

Court has also recognized that it would often be unduly burden-

some and unreasonably restrictive to require the police to post

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a guard and repair to the courthouse for a warrant once they

have probable cause to search. United States v. Free 141 US.

App.D.C. 198, 437 F.2d 631, 635 (1970). Hence, when ob-

tainment of a warrant would unreasonably impair police ef-

ficiency by precluding the seizing of the “fleeting instant” or else

unreasonably burden effective law enforcement by requiring the

expenditure of valuable resources in immobilizing and watching

a vehicle, the Fourth Amendment countenances an eception to

the warrant requirement. Second, a different standard for auto-

mobiles has also been rationalized on the ground that ndividuals

have a lessened expectation of privacy when traveling in autos—

a car travels in plain view on public thoroughfares anc “has little

capability for escaping public scrutiny’—so that the search of

an auto is far less intrusive than a search of a persoa or home.

Cardwell v. Lewis, 417 U.S. 583, 590-91, 94 S.Ct. 2464, 41

L.Ed.2d 325 (1974) (Plurality opinion); United States v. Free,

supra, at 635.

[3] Fourth Amendment considerations may also vary de-

pending upon whether the car is occupied or unoccupied. In

general the “exigency” exception has most often been associated

with an occupied car stopped on a highway. See United States

v. Free, supra. In Chambers v. Maroney, supra, the Court

said:

{Carroll v. United States] holds a search warrant unneces-

sary where there is probable cause to search an automobile

stopped on the highway; the car is movable, the occupants

are alerted, and the car’s contents may never be found

again if a warrant must be obtained. Hence an immediate

search is constitutionally permissible. 399 U.S. at 51, 90

S.Ct. at 1981.

The rule of reason embodied in the Fourth Amendment, then,

is flexible enough to permit a police officer with probable cause

to search an occupied automobile when the prospect of mobility

DIEM FILE ELIS, LRT IMIG ENS LILI OE DE PTL, LE PML SPORT no

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and the burden on resources occasioned by immobilizing the

automobile and posting a guard to watch it create an emer-

gency circumstance or aggravate an already existing emergency.

[4] By contrast, the threat of mobility and the burden on law

enforcement resources will oftentimes be less acute in the case

of an unoccupied automobile which the police have probable

cause to search. If there is no intrinsic emergency arising out of

the factual situation facing the law enforcement officers, or if

the threat of mobility and the prospect of unreasonable burden

on resources do not in themselves create an exigency, then even

where there is probable cause the Fourth Amendment mandates

that the police obtain a warrant before they conduct a search of

an unoccupied automobile. See Coolidge v. New Hampshire, 403

U.S. 443, 458-64, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)

(plurality opinion). Mr. Chief Justice Taft in delivering the

opinion of the Court in the case which created the so-called

“automobile exception,” Carroll v. United States, supra, recog-

nized as much when he wrote that “[i]n cases where the securing

of a warrant is reasonably practicable, it must be used . . .” 267

U.S. at 156, 45 S.Ct. at 286. See Coolidge v. New Hampshire,

supra, 403 U.S. at 461-62, 91 S.Ct. 2022.

We deal today with the warrantless search of the interior of

an unoccupied parked vehicle. The cases principally relied upon

by the Government, United States v. Free, 141 U.S. App.D.C.,

198, 437 F.2d 631 (1970) and Cardwell v. Lewis, 417 U/S.

583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974), are not con-

trolling. United States v. Free upheld a warrantless search of a

stopped vehicle which followed immediately the arrest of the

driver where the police had probable cause, based on the victim's

identification of the driver as her assailant, to believe that the

vehicle contained a weapon which had been used some 45

minutes earlier to perpetrate an armed assault and where prior

to the search, the police had neither sufficient information for the

issuance of a warrant nor the time to obtain a warrant once

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probable cause had attached. Cardwell v. Lewis upheld the con-

stitutional validity of a warrantless examination, made upon

probable cause, of the exterior of a car previously impounded

by the police. The evidence thus obtained was “. . . not the

product of a ‘search’ that implicate[d] traditional considerations

of the owner’s privacy interest.” 417 U.S. at 588-89, 94 S.Ct. at

2468. Hence, although Cardwell v. Lewis and United States

v. Free provide benchmarks in the exposition of the law of the

Fourth Amendment, they do not necessarily dictate the path we

must follow today.

Ill

The questions of “exigency” and “practicability” of obtaining

a warrant are dependent upon such variables as the mobility of

the automobile, the burden upon law enforcement officers, and

other facts and circumstances surrounding the warrantless search.

In short, the answer to these questions depends upon factual de-

terminations and the consequent application of legal categories

like “exigency” to the initial findings of fact.

[5] The trial court correctly framed the issue in terms of

exigency and practicability: did the exigency of the situation

render it impracticable for the police to obtain a warrant before

searching the automobile? Finding “no showing of exigent cir-

cumstances which would make it impracticable for the police to

get a warrant prior to searching that car” (Tr. 279), the trial

court suppressed the fruits of the search. On review we deal

basically with a factual question. The trial court’s finding of non-

exigency was predicated upon its evaluation of the facts and

circumstances surrounding the search. We are not free to set

aside the trial court’s finding unless the record reveals its view

of the facts to be clearly erroneous. Rule 52(a), F.R.Civ.P. Since

our review of the record and the briefs does not leave us “with

the definite and firm conviction that a mistake has been com-

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mitted,” United States v. United States Gypsum Co., 333 US.

364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948), we affirm.

bi il esa bs

[6] The trial court found that, although probable cause may

have attached, no emergency conditions existed at the time

when the two suspects parked the Cadillac at the corner of

Orleans and 7th Streets, exited, and proceeded to walk down

7th Street. (Tr. 279). Although officers Schlueter and Perkins

followed the Cadillac to 7th and Orleans after receiving the

radio message, they made no move to stop the suspects from

leaving the area where the car was parked. The Court found

that the Cadillac had been immobilized, presumably because

the occupants had departed and a substantial force of police

officers had arrived. There was no need then to effect an

immediate warrantless search on the premise that the auto-

mobile might soon be driven from the area when the premise :

itself no longer comported with reality. Additionally, as the f

trial Court noted in colloquy with government counsel (Tr.

261), the robbery occurred in the late morning of a business

day, and it would not have been difficult or time consuming

to have obtained prior judicial approval before conducting the

search. In sum, the Court saw no reason why the police could

not have put the automobile under surveillance while they

secured the warrant (Tr. 279), reasoning apparently that the

police did not lack available manpower for such a task.

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The Government contends, however, that the trial court’s

suppression order was clearly erroneous because it could have

found exigent circumstances on any one of several grounds.

First, the Government asserts that the opportunity to search

the tan automobile was “fleeting” and that the police therefore

were justified in operating on a carpé diem principle. It was

not “inconceivable,” the Government argues, that the bank

robbers could have returned and driven the vehicle away, or

made a desperate attempt to destroy the incriminating evi-

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dence. Alternatively, the vehicle could have been ransacked

by vandals or persons acting for the bank robbers while the

police were in the process of securing a warrant.

The Court must reject the Government’s “fleeting” instant

hypothesis. When Detective Fontana arrived at the scene, he

found at least 10 police officers surrounding the car. Approxi-

mately 12 minutes later, a Mobile Crime Lab arrived at the

scene. (Compare Tr. 18 with Tr. 23). The Court believes

it indeed inconceivable that the two suspects could have

wrested the car away from the sizeable force then guarding it.

It is even more unlikely that they would have returned to at-

tack the police officers in an attempt, which could only be

described as foolhardy, to destroy the evidence. Finally, the

Government's suggestion that the warrantless search was nec-

essary to prevent the car from being ransacked by vandals or

persons acting for the defendants must be characterized as

fanciful in light of the number of law enforcement officers

present in the immediate area.

Second, the Government raises the drain on resources argu-

ment: it contends that the exigency of the situation precluded

the placing of a special detachment around the car because avail-

able police manpower was needed to search for the suspects

and, consequently, the immediate search was necessary to pre-

serve any evidence which might be in the auto. This argument

has plausibility and would indeed support a warrantless search in

the appropriate circumstances,” but there is absolutely no founda-

tion for it in this record. Our reading of the record reveals that

there were never less than three officers surrounding the car and

at one period of time there were more than ten officers in the

area.*

2 See United States v. Free, supra, at 635.

’% Compare Tr. 14 [and] Tr. 19 with Tr. 42. Even when approxi-

mately a half dozen officers had been dispatched to investigate the

house which Robinson was seen entering, three officers were left to

stake out the car. Tr. 42.

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Third, the Government contends that a security detail would :

only prolong the period of time in which the police would be |

exposed to danger should the robbers attempt to recover their

automobile. Again, this might provide a plausible rationale for

a warrantless search in appropriate circumstances. There is, how- :

ever, absolutely no evidence in the record that the police detail

which first surrounded the Eldorado, then searched, and then ex- :

amined the fruits of the search, was at any time exposed to dan- ‘

ger, or that they ever thought themselves exposed to danger. i

:

The Government in its brief misconstrues the functions of a

reviewing Court. Our task is not to think of hypothetical situa-

tions which could conceivably justify the search in question, but

to ascertain whether the trial judge was clearly wrong in its view

of the relevant facts.

Our review of the record does not leave us with the definite

and firm conviction that factual error has been committed. In

conclusion we summarize the following facts and inferences sup- F

portive of the trial court’s determination that no emergency ex- |

isted and that the police could have moved expeditiously to have

obtained a warrant had they so desired: (1) The trial court’s

inference, drawn from their behavior, that Officers Perkins and

Schlueter did not think an emergency existed when they watched

the suspects depart the Eldorado; (2) the fact that the number

of police in the area appears never to have fallen below three and

at one time exceeded ten; (3) the fact that there were at least

three squad cars in the area when the witness, Ms. Leary, arrived

to identify the Eldorado (See Tr. 82); (4) the capability of the

police to move expeditiously when they so desired—they trans-

ported Ms. Leary to the bank, took her home, later returned to

her house and picked her up, and drove her to the location of the

Eldorado where she made the positive identification, all in the

space of 45 to 55 minutes; (5) the fact that the police waited for

15 minutes after Ms. Leary’s positive identification to conduct

the search supports the conclusions that no emergency existed

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and that there was surplus time which could have been used to

secure a warrant; (6) the lack of any evidence in the record to

support the Government’s contentions that the police were in

danger and that their available resources would have been un-

reasonably drained by application for a warrant; and (7) the fact

that the robbery occurred on a Thursday morning when the

courts were open and judicial officers readily available.

An order of affirmance will issue.