Opposition Brief — Pennsylvania v. Jackson

IN THE

Supreme Court of the United States

October Term, 1975

No. 75-223

COMMONWEALTH OF PENNSYLVANIA,

Petitioner,

vs.

EDDIE JACKSON & RONALD GARRETT,

Respondent.

ON PETITION FOR A WRIT OF

CERTIORARI TO THE SUPREME COURT

OF PENNSYLVANIA

BRIEF FOR RESPONDENTS IN OPPOSITION

HENRY B. ROTHBLATT

Attorney for Respondents

232 West End Avenue

New York, N. Y. 10023

SLT A DIOL LS A EI LEI: OIE IRE L ROR BOAT GIT BER oH, GG.

POMPOM BEEBE NO of

INDEX

Page

QUESTIONS a ee ee

CONSTITUTIONAL PROVISIONS INVOLVED.....2

ARGUMENT

I.

II.

IItr.

IV.

This Court Lacks Jurisdiction to

Review the Judgment of the Su-

preme Court of Pennsylvania.....3

Petitioner has Misconstrued the

Staleness Standard Applied by

the Supreme Court of Pennsyl-

vania. The Pennsylvania Court

Correctly Held That Probable

Cause to Search the Trunk of

Respondents' Automobile did not

BRAGG aon 6 0 ee eC s ee eR tec e were oS

There is No Need for Supreme

Court Review of the Effect of

Staleness Upon the Determina-

tion of Probable Cause to Con-

duct a Search. -The Record in

This Case is Particularly Un-

suitable for such Review Even

Sf 10 Were BOCOSBEEV acc ccccsccccl

Since No Effective Alternative

to the Exclusionary Rule is

Presently Operative, Reversal

of the Decision Below Would

Leave Unlawful Police Conduct

CRGNOGNOG sc eee cewetecosverevacede

Coraras ee bo 06-0 0 6656 640'0.00.00600 5008860 0RE

PROPS YPM RAAT LEE, Ot PO ILE RIO EL TE ALE E TH EGY Gi IN » war ot

TABLE OF AUTHORITIES

Cases: Page

Aguilar v. Texas, 378 U.S.

108 (1964) 7 . . . . ~ . . * . . 8

Commonwealth v. Eazer, 455

Pa. 320, 312 A.2d 398 (1973) .. 4, 6

7, 20

Commonwealth v. Pinno, 433 Pa.

248 A. 2d 26 (1968) . * . . - © 6

Commonwealth v. Shaw, 444 Pa.

EAGy GEk Rca Bet Abele) «+ > © so 4

Commonwealth v. Simmons, 450 Pa.

Ose, 20k Meee CAP Teele) 2 se ws 4 :

Durham v. United States, 403 F.2d

ape tan Gans Sees 2s 2h ee 8 4

Jankovich v. Indiana Toll Road

Commission, 379 U.S. 487 (1965) . 4

;

Nathanson v. United States, 290

U.S. 41 (1933) ‘ @ * « 6, 8 j

Schoenman v. United States, 317

Foam A778. (ete ChE: BPO8) & ee » 8

Sgro v. United States, 287 U.S.

206 (1932) . . . - . + . . - . . eo 8

Spinelli v. United States, 393 U.S.

410 (1969) . . . co . . . . . - . 8 .

A eee

United States v. Day, 455 F.2d

aoe (200 Gane BOTS) 2.2 + oe ee SS :

United States v. Harris, 483 F. }

20 Like (200 CLE. Eelal -« 6 + & eee SA

DGPS LID LOE PIL LOGE OL LG LTA AD ig LITT) OF me p NO ner ee ae el a anes PROP The POY AEE aR OAM NE EI

a

: OTOP INTE PT LPR H LN I IT

:

TABLE OF AUTHORITIES

(Continued)

Statutes: Page

Pennsylvania Constitution,

Article 1, Section8’..... 3

Other Authorities:

Annot., 100 A.L.R. 2d 525 (1965) 9

ii

Le eT eee

KS COSREE ELENA LA PROB NEE NN IIR FRE BE GEL) REO,

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975

No. 75-223

COMMONWEALTH OF PENNSYLVANIA,

Petitioner

vs.

EDDIE JACKSON & RONALD GARRETT,

Respondents. ~

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT

OF PENNSYLVANIA

BRIEF FOR RESPONDENTS IN OPPOSITON _

QUESTIONS PRESENTED

1. Whether this Court lacks jurisdiction

to review the judgment of the Supreme Court

of Pennsylvania because that judgment was

based upon an independent and adeauate

state ground.

NPR gh < SEEN SPN ASME OBI LON AOI ‘

1 Noy

2. Whether evidence that respondents en-

gaged in illegal narcotics activity in

SPEIER Nt Sy RET

1. :

OLN CEO PO PIB TERS SE POR? Pe TPR PIL Se ty “

So ee,

wack, Pe ee EA OR HE

LE LPO RPSL

the State of Michigan in January, 1972

was too remote to establish probable cause

to believe their automobile contained

narcotics when stopped for a speeding

violation in Pennsylvania in June, 1972,

where there was no actual evidence that

respondents were committing any crime

at the time they were stopped.

3. Whether the exclusionary rule should

be abandoned so as to permit the use of

unlawfully seized evidence, where no

effective alternative means of controlling

unlawful police conduct is operative.

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Amendment IV

The right of the people to be secure in

their persons, houses, papers, and effects,

against unreasonable searches and seizures

shall not be violated, and no Warrants

shall issue, but upon probable cause,

supported by Oath or affirmation, and

particularly describing the place to be

searched, and the persons or things to

be seized.

United States Constitution, Amendment XIV,

Section l

All persons born or naturalized in

the United States, and subject to the

jurisdiction thereof, are citizens of

the United States and the State wherein

they reside. No State shall make or

enforce any law which shall abridge

the privileges or immunities of citizens

of the United States; nor shall any State

deprive any person of life, liberty, or

OO TH RT SN

a a as a ie

Was seo

ee ee eae

property, without due process of Taw,

nor deny to any person within its juris-

diction the equal protection of the laws.

Pennsylvania Constitution, Article l,

Section 8

The people shall be secure in their

persons, houses, papers and possessions

from unreasonable searches and seizures,

and no warrant to search any place or

to seize any person or things shall

issue without describing them as nearly

as may be, nor without probable cause,

supported by oath or affirmation

subscribed to by the affiant.

DTI ROR EN

ARGUMENT

PLT ERIE ML

I

Sat Ble eta a og

THIS COURT LACKS JURISDICTION TO REVIEW

THE JUDGMENT OF THE SUPREME COURT OF

PENNSYLVANIA.

Article 1, Section 8, of the Pennsylvania

Constitution reads as follows:

"The people shall be secure in their

persons, houses, papers and possessions

from unreasonable searches and seizures,

and no warrant to search any place

or to seize any person or things shall

issue without describing them as nearly

as may be, nor without probable cause,

supported by oath or affirmation sub-

scribed to by the affiant."

In the decision below, the Supreme

Court of Pennsylvania held that the search

PSI LOGI: ORO ILA LIER. CIE EES ELEY ESE TRIE OTOL OMEGA

Warrant was " .. . constitutionally /

defective, in that it was issued with-

out a showing or probable cause...

and that evidentiary use of the property

seized was thus "constitutionally pro-

scribed ... ." (Petition, App. A,

pp. 27-28).

While the opinion makes no specific re-

ference to either the United States Con-

stitution or the Pennsylvania Constitution,

it is clear that the decision was based

upon both federal and state law. Not

only are both federal and state author-

ities cited throughout the opinion, but

regarding the key "staleness" issue, the

Pennsylvania Supreme Court relied most

directly upon its own decisions in Common-

ealth v. Eazer, 455 Pa. 320, 312 A.2d 398

(1973); Commonwealth v. Simmons, 450 Pa.

624, 301 A.2d 819 (1973); and Commonwealth

v. Shaw, 444 Pa. 110, 291 A.2d 897 (1971).

Moreover, in Commonwealth v. Eazer,

supra, where the Pennsylvania Supreme Court

espoused the language "actual continuity" [of

the illegal enterprise] which petitioner

finds objectionable, the court expressly

noted that its decision was mandated by

the Pennsylvania Constitution as well as

the Fourth Amendment of the United States

Constitution. 312 A.2d 398, 399 n.2.

It is well settled that this Court will

decline to review cases based upon indepen-

dent and adequate state grounds. Janko-

vich v. Indiana Toll Road Commission, 379

U.S. 487 (1965). Accordingly, the in-

stant petition should be denied for

lack of jurisdiction.

ee eee en ey HANEY RN

Teree

PPA

APART eS

PLS ERLE MOO 8 IF AGT FF

II

PETITIONER HAS MISCONSTRUED THE STALENESS

STANDARD APPLIED BY THE SUPREME COURT OF

PENNSYLVANIA. THE PENNSYLVANIA COURT

CORRECTLY HELD THAT PROBABLE CAUSE TO

SEARCH THE TRUNK OF RESPONDENTS' AUTO-

MOBILE DID NOT EXIST.

Petitioner states:

"The standard which the Pennsylvania

court applied was that ‘evidence to

demonstrate continued criminal activity

must establish actual continuity of

the illegal enterprise.' (emphasis

theirs). '‘Actual' was applied to mean

proof beyond doubt, effectively re-

quiring that the officer prove the

crime before he may legally search, :

and proof beyond doubt is not within

the concept of probable cause under

the Fourth Amendment."

(Petition, p.14) (emphasis in original).

The Pennsylvania Supreme Court did not

apply, or even suggest, any such requirement

of “proof beyond doubt." The following is the

relevant portion of the decision below:

FEN E TETANY NEES ERNE OEE RII

"The Commonwealth argues the furtive

behavior of the appellants, when con-

sidered with the reports of past crimi-

nal narcotic activity, dictated the

probability that, on June 14th, the

appellants were using the Pennsylvania

Turnpike for the transportation of

narcotics, thus supplying the required

element of continuity. However, evi-

dence to demonstrate continued criminal

activity must establish actual continuity

I INR ig

hated we POET PEt

a > ae

of the illegal enterprise. Common-

wealth v. Eazer, supra at 324,

A. at . Herein, Trooper

Wynn possessed no information that a

crime had been committed. He had

neither an informant's tip nor the

benefit of police surveillance to

indicate that narcotics were being

transported in the Ford vehicle.

Although the appellants’ behavior

may not have been of an outwardly

innocent character, it was not such

as indicated a probability that

narcotics would be found in the Ford

automobile. The appellants' re-

sponses and movements may have appeared

suspicious to Trooper Wynn, but ‘mere

suspicion’ is not an adequate ground

for the issuance of a search warrant.

Nathanson v. United States, 290 U.S. 41,

47, 54 S. Ct. 11(1933); United States ;

v. Day, 455 F.2d 454,456(3d Cir. 1972);

Commonwealth v. Pinno, 433 Pa. 1,5, 248

A.2d 26 (1968). Therefore, we conclude

there did not exist probable cause to

search the trunk of the Ford automobile :

for narcotics and controlled substances."

(Petition, App. A, p.29) (emphasis in original).

In Commonwealth v. Eazer, cited in the

above paragraph, the Pennsylvania Supreme

Court reversed the appellant's conviction

of conducting a lottery, and held that a

sixty-one day hiatus between alleged com-

mission of a criminal act and application

for the search warrant vitiated any showing

of probable cause as of the date the warrant

issued. There the court wrote:

"(SJurveillance of appellant's home fail-

ed to establish continuing criminal acti-

vity. Evidence, to demonstrate continuing

:

conduct, must establish actual con-

tinuity of the illegal enterprise.

A police officer's unsubstantiated

impression that a particular crime

is of the sort which usually is con-

tinuing is not sufficient; nor may a

magistrate issue a warrant upon such

an impression."

312 A.2d 398, 400 (footnote and citations

omitted).

Thus, in both Eazer and the instant case,

by the phrase “actual continuity of the

illegal enterprise," the Pennsylvania

Supreme Court sought to distinguish a

situation where police have actual evidence

of continued criminal conduct, from

one in which they merely infer or

suspect there to be continuity without

objective evidence thereof. if” The Penn-

sylvania court certainly did not hold, as

petitioner suggests, that such evidence

must estadlish existence of the criminal

conduct by “proof: beyond doubt" in order

to support issuance of a search warrant.

Here, the prior conduct consisted of the

following information set forth in the

affidavit of Trooper George Wynn: (1) that

on January 21, 1972, Jackson had been

stopped for speeding while traveling east

on the Pennsylvania Turnpike and a brown

paper bag containing twenty-five thousand

Gollars in cash was found in his possession;

(2) that as of January 21, 1972, the Detroit

Police Department was in receipt of infor-

mation from a "reliable confidential in-

1/ See Sgro v. United States, 287 U.S.206,

211~{1932).

CRETE! PRATT RoE Le eRe ee ee a

SQ ERA eR as SSP SRNAR NE A - a,

SAmARARIATIGANEN wana

formant" that Jackson was a large scale

narcotics dealer in the Detroit area;

and (3) that shortly after January 21,

1972, Jackson and Garrett were arrested

by federal authorities on narcotics

charges.

The information concerning prior nar-

cotics activity of respondents was thus

uncorroborated hearsay concerning alleged

conduct in Detroit, Michigan in January

of 1972. Trooper Wynn possessed no ob-

jective evidence that this activity con-

tinued after the alleged federal narcotics

arrest of respondents "shortly after" Jan-

uary 21, 1972, much less that respondents

were actually in possession of narcotics

when stopped for speeding some five months

later in Cumberland County, Pennsylvania.

Under standards well established by

this Court, the Supreme Court of Pennsy-

lvania correctly held that probable cause

to search the trunk of respondents' auto-

mobile did not exist. Spinelli v. United.

States, 393 U.S. 410 (1969); Aquilar v.

Texas, 378 U.S. 108 (1964); Nathanson v.

United States, 290 U.S. 41 (1933); Sgro

v. United States, 287 U.S. 206 (1932).

II!

THERE IS NO NEED FOR SUPREME COURT REVIEW

OF THE EFFECT OF STALENESS UPON THE

DETERMINATION OF PROBABLE CAUSE TO CON-

DUCT A SEARCH. THE RECORD IN THIS CASE

IS PARTICULARLY UNSUITABLE FOR SUCH

REVIEW EVEN IF IT WERE NECESSARY.

The staleness of information presented

to the issuing magistrate is but one

factor to be considered in the determin-

ation of probable cause to conduct a

q.

«

search. It is not susceptible to précise

guidelines, but must be determined on a

case-by-case basis. As the Court observed

in Sgro v. United States, 287 U.S. 206,

210-211 (1932):

"[I]t is manifest that the proof must

be of facts so closely related to the

time of the issue of the warrant as

to justify a finding of probable

cause at that time. Whether the proof

meets this test must be determined by

the circumstances of each case."

Neither the federal courts of appeals nor

the state courts have been troubled with

this concept, 2. and there appears no suf-

ficient reason to reexamine it at this

time.

Moreover, the record in this case is

particularly unsuitable for such review

even if it were necessary.

The staleness issue is typically raised

in a case where police officers have pro-

bable cause to conduct a search at one

point in time, but they delay and a to

act upon it until some later date.’ The

question then presented is whether or not

the passage of time vitiated the once

2/ See, e.g., United States v. Harris, 483

F.2d 1115 (3d Cir.1973); Durham v. United

States. 403 F.2d 190 (9th Cir. 1968);

Schoenman v. United States, 317 F.2d 173

(D.C. Cir. 1963); and numerous cases col-

lected in 100 A.L.R.2d 525 (1965).

3/ See, e.g., Sgro-v. United States, supra;

Durham v. United States, supra; Common-

wealth v. Shaw, supra.

existing probable cause.

As indicated above (pp.7-8, supra)., the

prior information in this case consisted

of uncorroborated hearsay to the effect

that in January, 1972, Jackson was re-

portedly a large narcotics dealer in

Detroit; that on January 21, 1972 Jackson

had been stopped for speeding on the Penn-

sylvania Turnpike and $25,000 in cash was

found in his possession; and that shortly

after January 21, 1972, both respondents

were allegedly arrested by federal author-

ities on narcotics charges.

Certainly it is doubtful that this infor-

mation would have established probable

cause to search the trunk of respondents

automobile for narcotics even if it had

been fresh. Understandably then, the

decision below was not based soley on

staleness, but on an overall lack of prob-

able cause at the time the warrant issued.

Thus the staleness issue is not + oe

squarely presented in this case.

There is another aspect of this case

which sets it apart from the usual stale-

ness situation. Here the Pennsylvania

State Troopers were not investigating

respondents Jackson and Garrett for nar-

4/ Compare Commonwealth v. Eazer, 455 Pa.

320,312 A.2d 398 (1973), where the Penn-

sylvania Supreme Court did base its de-

cision soley on the question of. stale-

ness, and therefore considered it un-

necessary to determine whether the in-

formation presented to the magistrate was

sufficient to establish probable cause.

See 312 A.2d at 399 n.3.

RAE *

cotics violations, and they did not

obtain information concerning criminal

activity of respondents and then deli-

berately delay seeking a search warrant.

Rather, the Troopers merely stopped re-

spondents vehicle for speeding during

routine patrol of the Pennsylvania Turn-

pike. All of the information concerning

respondents alleged narcotics activity

was thereafter obtained through communi-

cations with the Detroit Police Depart-

ment. Therefore, this record does not

present an opportunity to examine the

various factors which may justify delay

in seeking a search warrant in the far

more typical situation of an ongoing

police investigation. See, e.g., United

States v. Harris, 482 F.2d 1115 (3d Cir.

1973).

Finally, it should be emphasized that in

the courts below respondents also chal-

lenged the validity of the initial war-

rantless search of their automobile during

which the state troopers discovered the

absence of a trunk key and a Blue Cross

identification card belonging to neither

respondent. This information was set

forth in the issuing affidavit (Petition,

pp. 9-10), and relied upon by the Com-

monwealth in its contention that pro-

bable cause existed to conduct the further

search of the vehicle's trunk. (See

Petition, pp.15, 19).

If this information were indeed the

product of an unlawful search, then the

subsequent search of the trunk would be

ll.

RPL IRE IY GE PIER Sees

invalid aside from the staleness ques-

tion.5/ This is an additional reason why

this record is a poor choice for Supreme

Court review of the staleness concept.

Iv

SINCE NO EFFECTIVE ALTERNATIVE TO THE EX-

CLUSIONARY RULE IS PRESENTLY OPERATIVE,

REVERSAL OF THE DECISION BELOW WOULD

LEAVE UNLAWFUL POLICE CONDUCT UNCHECKED.

Petitioner describes as "brilliant" and

"innovative" police conduct which the

Supreme Court of Pennsylvania held to be

unlawful, and urges this Court to abandon

or modify the exclusionary rule so as

to render evidence seized as a result of

that conduct admissible at trial.

While the exclusionary rule may eventually

be replaced by a more effective control

over unlawful police conduct, that day has

not yet arrived. Since no effective alter- ©

native to the exclusionary rule is pre- |

sently operative, reversal of the decision |

below would leave unchecked, and only

encourage, further unlawful police in-

vasion of constitutional guarantees.

5/ Because the Pennsylvania Supreme Court

found that probable cause did not exist

even if this information were considered,

it did not reach the issue of the legality

of the initial warrantless search. (Peti-

tion, App. A, p.26 n.3).

12.

CONCLUSION

For the foregoing reasons, the petition

for a writ cf certiorari should be denied.

Respectfully submitted,

HENRY B. ROTHBLATT

Attorney for Respondents.

JON G. ROTHBLATT

Of Counsel

October, 1975

13-