# Opposition Brief — Pennsylvania v. Jackson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_1432%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1975 - **Citation:** 423 U.S. 999 ## Text 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- --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_1432%3A2. Public record. Not legal advice.