Petition for a Writ of Certiorari — Long v. Texas (No. 75-12144)

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In the

Supreme Court of the United States

OCTOBER TERM, 1975

No. —%5- iz 14

HAROLD Loy» LONG,

Petitioner,

v.

THE STATE OF TEXAS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF CRIMINAL APPEALS

OF THE STATE OF TEXAS

FRANK H. JACKSON

555 Griffin Square

Suite 968

Dallas, Texas 75202

Counsel for Petitioner

Of Counsel:

GEORGE R. MILNER

RONALD L. GORANSON

555 Griffin Square

Suite 968

Dallas, Texas 75202

SOUTHWESTERN LAW PRESS — DALLAS, TEXAS — (214) 742-4257

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INDEX

Table of Authorities

Opinion Below

Jurisdiction

Question Presented

Constitutional Provisions Involved

Statement of the Case

Reasons for Granting the Writ

Conclusion

Certificate of Service

Appendix A

Appendix B

Page

SIs

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ii Table of Authorities

Cases

Adams v. Williams, 407 U.S. 143 (1972)

Brock v. United States, 223 F.2d 681 (5 Cir. 1955)

Gil v. State, 394 S.W.2d 810 (Tex. Crim. App. 1965)

Harris v. United States, 390 U.S. 234 (1968)

Hester v. United States, 265 U.S. 57 (1925)

Johnson v. State, 469 S.W.2d 581 (Tex. Crim. App. 1971)

Jones v. United States, 357 U.S. 493 (1958)

Katz v. United States, 389 U.S. 347 (1967)

McDonald v. United States, 335 U.S. 451 (1948)

Mancusi v. Deforte, 392 U.S. 364 (1968)

Mapp. v. Ohio, 367 U.S. 643 (1961)

Sibron v. New York, 392 U.S. 40 (1968)

Silverthorne Lumber Co. v. United States, 251 U.S.

385 (1920)

Terry v. Ohio, 392 U.S. 1 (1968)

Turner v. State, 499 $.W.2d 182 (Tex. Crim. App. 1973)

United States v. Davis, 423 F.2d 974 (S Cir. 1970)

United States v. Holmes, 521 F.2d 859 (5 Cir. 1975)

Weeks v. United States, 232 U.S. 383 (1914)

Wong Sun v. United States, 371 U.S. 471 (1963)

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In the

Supreme Court of the United States

OCTOBER TERM, 1975

FEL PS INS ee!

No.

seek

PICK, oe

HAROLD Loyp LONG,

Petitioner,

Vv.

THE STATE OF TEXAS,

Respondent.

Se

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF CRIMINAL APPEALS

OF THE STATE OF TEXAS

The petitioner, Harold Loyd Long, respectfully prays that

a writ of certiorari issue to review the judgment of the Court

of Criminal Appeals for the State of Texas in this case.

OPINION BELOW

The opinion of the Court of Appeals is not yet reported

but is attached hereto as Appendix A.

JURISDICTION

The judgment of the Court of Criminal Appeals for the

State of Texas was entered on December 10, 1975. Leave

to file a motion for rehearing was denied on January 21,

1976, (attached hereto as Appendix B). The jurisdiction of

this Court is invoked under 28 U.S.C. Sec. 1257(3).

QUESTION PRESENTED

Whether the three hundred and fifty pounds of marijuana

introduced as evidence at the petitioner’s trial was seized in

violation of the search and seizure provision of the Fourth

Amendment of the United States Constitution as applied to

the states by the Fourteenth Amendment of the United States

Constitution?

CONSTITUTIONAL PROVISIONS INVOLVED

U.S. Const. amend. 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 particu’ -r'y describing the place to be

searched, and the persons .~ things to be seized.”

U.S. Const. amend XIV, Section 1:

“

. nor shall any State deprive any person of life, lib-

erty, or property, without due process of law...”

STATEMENT OF THE CASE

The sheriff of Wise County, Texas, received three reports

of aircraft circling and landing in a rural section of the county.

On the third occasion the sheriff went to the area and ob-

served one aircraft take off while another aircraft circled over-

head. The departing aircraft only used its landing lights for

a very brief period to allow the aircraft to clear the ground.

The runway lights were turned off after the aircraft cleared

the ground.

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Two weeks later the sheriff and one of his deputies decided

to visit the property to conduct further investigation. The

house was located 200 - 300 yards from the nearest neighbor.

and ninety (90) feet from a farm to market road. The sheriff

did not know who lived on the property. Upon arriving, they

parked in the driveway and knocked on the door facing the

carport of a small frame house. After receiving no answer, the

two officers walked to the back of the house and knocked

on the back door. Again they received no answer. They then

continued around the house, intending to return to their car.

As they passed a window on the west side of the house, they

felt a hot blast of air and the smell of marijuana coming from

the window. The blinds of the window were open and the

officers observed a large quantity of marijuana scattered over

the floor of a room with a fan blowing air over the marijuana.

The sheriff returned to his office and obtained a search

warrant. The house was then placed under observation by a

large number of law enforcement officers. The petitioner was

seen driving up to the residence and entering it. He was ob-

served making numerous trips between the house and a trailer

and the house and an old school bus. The officers executed

the search warrant on October 11, 1973, two days after it

was obtained. The appellant was found sleeping in the house

along with several other people. Marijuana was found in

the house, the trailer and the bus.

Prior to the trial of the case, a hearing was held on the

petitioner's Motion to Suppress. Petitioner's objection to the

search was that the initial warrantless search was illegal and

that the’ subsequently obtained search warrant (and the fruits

4

obtained therefrom) was fatally tainted. The trial court de-

nied the motion and an exception was taken. The issue was

raised on appeal, but the Court of Criminal Appeals of the

State of Texas affirmed, holding that observations through an

open window did not amount to a search, citing Turner v. State

499 S$.W.2d 182 (Tex. Crim. App. 1973), and that one so

foolish as to leave his window open could not complain if

another observes illegal activity, citing Gil v. State, 394 S.W.

2d 810 (Tex. Crim. App. 1965); Johnson v. State, 469 S.W.2d

581 (Tex. Crim. App. 1971); and Turner v. State, supra.

REASONS FOR GRANTING THE WRIT

Searches conducted outside the judicial process, without

prior approval by a magistrate, are per se unreasonable, under

the Fourth Amendment, subject only to a few specifically

established and well delineated exceptions. Katz v. United

States, 389 U.S. 347 (1967). The exceptions are jealously

and carefully drawn, Jones v. United States, 357 U.S. 493

(1958), and there must be a showing by those who seck

exemption that the exigencies of the situation made the course

imperative. McDonald vy. United States, 335 U.S. 451 (1948).

Under the facts of the present case, if the observation

through the open window was the result of an unlawful in-

trusion, then the marijuana seized as a result of the search

warrant issued after the intrusion would be “fruit of the poi-

son tree” and excludable, Silverthorne Lumber Co. v. United

States, 251 U.S. 385 (1920); Wong Sun v. United States,

371 U.S. 471 (1963), the protection of the Fourth Amend-

ment being applicable to state searches through the “duce

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process” clause of the Fourteenth Amendment. Mapp v. Ohio.

367 U.S. 643 (1961).

A IOPLLISE SED. EET Y MEDEA ENE

One of the exceptions to the warrant requirement of the

Fourth Amendment is the “plain view” doctrine. Objects fall-

ing in the plain view of an officer who has a right to be in

the position to have that view are subject to seizure. Harris v.

United States, 390 U.S. 234 (1968); Hester v. United States,

265 U.S. 57 (1925). The Texas Court of Criminal Appeals

affirmed the conviction below upon this exception, although

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stressing the “open window” as talismanic to a waiver of the

protection of the Fourth Amendment. The true issue involved

is whether the officers had a right to be outside the window.

The test for determining the issue is a balancing test between

the petitioner's reasonable expectation of privacy and the

government's power to investigate suspicious activities.'

The Fourth Amendment protects against any invasion of

a person’s reasonable expectation of privacy. Katz v. United

States, supra; Mancusi v. Deforte, 392 U.S. 364 (1968). There

is not much dispute that a person is entitled to a reasonable

expectation of privacy in his own home. Weeks v. United

States, 232 U.S. 383 (1914). In Brock v. United States, 223

F.2d 681 (5 Cir. 1955), the circuit court reversed a convic-

tion for operating a still after a law enforcement official ob-

tained incriminating evidence by going upon the defendant's

property, making observations through a window and con-

versing with the defendant through the window. The opinion

stated:

“Whatever quibbles there may be as to where the curti-

1 United States v. Magana, 512 F.2d 1169 (9 Cir. 1975).

6

lage begins and ends, clear it is that standing on a man’s

premises and looking in his bedroom window is a viola-

tion of his ‘right to be left alone’ as guaranteed by the

Fourth Amendment. McDonald v. United States (335 U.S.

451).” (footnotes omitted )

And in United States v. Holmes, 521 F.2d 859 (5 Cir. 1975),

the circuit court held that whatever precautions a homeowner

in an urban area might have to take to protect his activities

from the senses of a casual passerby, a dweller in arural area

has a somewhat broader expectation of privacy.” See also

United States v. Davis, 423 F.2d 974 (5 Cir. 1970).

The right of the law enforcement officer to be at the win-

dow must be based upon the officer’s right to investigate sus-

picious activities. In Terry v. Ohio, 392 U.S. 1 (1968), and

its companion cases, Sibron v. New York and Peters v. New

York, 392 U.S. 40 (1968), this Court recognized that a police

officer may, in appropriate circumstances and in an appro-

priate manner, approach a person for purposes of investi-

gating possible criminal behavior. See also Adams v. Williams,

407 U.S. 143 (1972). However, Terry was limited by the re-

quirement that police interference with citizens must be based

upon “specific and articuable facts which, taken together with

rational inferences from those facts, reasonably warrant” an

intrusion into constitutionally protected areas. Terry v. Ohio,

392 U.S. at 21. Further, “[T]he scope of the search must be

‘strictly tied to and justified by’ the circumstances which ren-

dered its initiation permissible.” 392 U.S. at 19.

2 See Rosencranz v. United States, 356 F.2d 310 (1 Cir. 1966), for a dif-

erentiation of the rural/urban environment with reference to probable

cause Originating from the sense of smell.

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Applying the above law to the facts of this case, it is

apparent that the sheriff probably had the right to go to

the home of the petitioner and knock on the front door to

see if anyone was present. However, his right to further in-

vestigate ceased when no one answered his knock. The house

was a small frame house. There was no testimony from the

sheriff to indicate anyone was present (an automobile in the

driveway; a radio or television operating in the house). The

circumstances do not permit a further intrusion based upon

the contention that the officer was “searching” for someone

to answer the officer’s questions about suspicious circumstances.

The mere fact that the contraband was observed through

the open window® should not permit a broadening of the

scope of the intrusion. The window was not observable from

the front door. The nearest neighbor lived 200-300 yards

from the house, and there is no evidence that the contraband

could have been observed from any place outside of petitioner's

property. The sheriff waited two weeks before beginning his

“investigation.” It is clear from the facts that the officer's

intrusion beyond the front door of petitioner’s rural residence

was a violation of the petitioner’s reasonable expectation of

privacy, and should warrant the granting of this writ.

The decision of the Texas Court of Criminal Appeals is

based upon an interpretation of law that is probably not in

accord with the above decision of this Court. Further, the

case involves an issue not precisely determined by this Court.

Upon these grounds, the Court should grant this writ of

certiorari.

3 See Olivera v. State, 315 So.2d 487 (Fla. App. 1975).

8

CONCLUSION

For the reasons set forth above, petitioner respectfully sub-

mits that a writ of certiorari should issue to review the judg-

ment and opinion of the Court of Criminal Appeals of the

State of Texas.

Dallas, Texas 75202

Counsel for Petitioner

Of Counsel:

GEORGE R. MILNER

RONALD L. GORANSON

555 Griffin Square

Suite 968

Dallas, Texas 75202

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CERTIFICATE OF SERVICE

I hereby certify that three copies of this Petition for Writ

of Certiorari were mailed, postage prepaid, to the Hon. John

Hill, Attorney General, Capitol Station, Austin, Texas 78711,

ter of transmittal accom-

on the same date as shown on the |

panying this Petition. )

Dallas, Texas 75202

Counsel for Petitioner

Of Counsel:

GEORGE R. MILNER

RONALD L, GORANSON

555 Griffin Square

Suite 968

Dallas, Texas 75202