Opposition Brief — Harris v. United States

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Text

No. 91-1224

| EFILibD !

FES 21 1992

{

{acti OF THE HE CLERK |

IN THE SUPREME COURT OF THE UNITED STATES

October Term,

PATRICIA ANN OUZTS,

Vv.

STATE OF SOUTH CAROLINA,

1991

Petitioner,

Respondent.

BRIEF IN OPPOSITION

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF SOUTH CAROLINA

T. TRAVIS MEDLOCK

Attorney General

Post Office Box 11549

Columbia, SC 29211

(803) 734-3727

AMIE L. CLIFFORD*

Assistant Attorney General

P.O. Box 70100

N. Charleston, SC 29415

(803) 740-5850

COUNSEL FOR RESPONDENT.

*Counsel of Record

QUESTION PRESENTED

Did the Supreme Court of South Carolina

err in upholding the trial court's denial of

Petitioner's motion to suppress marijuana

found during the search of her car because

the car was covered by the search warrant

and, even if it were not covered, probable

cause existed to justify the search of the

car under the automobile exception to the

warrant requirement?

TABLE OF CONTENTS

TABLE OF AUTHORITIES ..- + + + © © « * iii

0 on be i a a a l

STATEMENT OF THE CASE .- + + + © © = * l

Facts underlying Crimes and

—

Procedural History of Case

Facts Relating to Motion to

Suppress (Argument )

ARGUMENT

The Supreme Court of South

Carolina properly upheld the trial

court's denial of Petitioner's

motion to suppress marijuana found

during the search of her car

because the car was covered by the

search warrant and, even if it

were not covered, probable cause

existed to justify the search of

the car under the automobile

exception to the warrant require-

ment. ae.) see 8 + 8) ee 9

PUTESUMEEEIEE 85 6 3 6 © © © © © © © ee 14

TABLE OF AUTHORITIES

Cases:

Cady v. Dombrowski,

433 (1973)

California v. Carney,

386 (1985)

413 VU.

471 U.S.

Cardwell v. Lewis, 417 U.S.

583 (1974)

Carroll v. United States,

132 (1925)

Chambers v. Maroney,

(1970)

Katz v. United States,

267 U.S.

399. U.S... 42,

reh. denied, 400 U.S.

347 (1967)

Michigan v. Thomas,

(1982)

856

389 U.S.

458 U.S: 259

People v. Juarez, 770 P.2d 1286

(Colo. 1989)

South Dakota v. Opperman, 428 U.S.

364 (1976)

State v. Bailey, 276 S.C.

274 &.2,.290 9is3

State v. Cox, 2390 §.C.

351 S.E.2d 570

State v. Dean, 282 S.C.

317 S.E.2d 744

(1981)

(1986)

(1984)

State v. Peters, 271 S.C.

248 S.E.2d 475

(1978)

iii

32,

489,

136,

498,

United States v. Gentry, 839 F.2d

reh. denied, 844 F.2d

Sth Cir. 13968)

T T Cc? + r + + y

] ted states V Pe j i C d

Ar wr QOac

OUU os I Ae

+ | + + 2 Ag ¢

TY eQd ST +} Oc + C , “4

IO OL A

Otne!

+ , r

+ i ae ‘ >

No. 91-1224

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1991

PATRICIA ANN OUZTS,

Petitioner,

STATE OF SOUTH CAROLINA,

Respondent.

BRIEF IN OPPOSITION

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF SOUTH CAROLINA

Respondent, State of South Carolina,

respectfully requests that this Court deny

the Petition for Writ of Certiorari, seeking

review of the unpublished opinion of the

Supreme Court of South Carclina in this

case. See State v. Ouzts, Op. No. 91-M0-237

‘S.€.8. CS. AsEPL}s The opinion has been

reproduced in Petitioner's Appendix.

JURISDICTION

Respondent does not question the

Court's jurisdiction in this proceeding.

STATEMENT OF THE CASE

Facts underlying Crimes and Procedural

History of Case

On Wednesday, November 22, 1989, the

Metro Narcotics Unit of the Greenwood County

Sheriff's Department began surveillance of a

residence located on the corner of East

Cambridge Street and Willowdale Court in

Greenwood, South Carolina. The residence

was surrounded by a chain link fence;

because there was no driveway, the only

place one could park was on the road in

front of the house. On that day, police

observed Petitioner drive up to the

residence in her Cadillac; she parked

directly in front of the gate to the fence

and, ~along with George Dillard who was a

passenger in the car, got out and entered

the residence. (Tr. p. 39, line 22 - p. 41,

line 19; p. 45, line 22 p. 46, line 11; p

50, iine 23 I 5i, line 10; p. 66, line 23

i 67, iine 9 On the following night,

Petitioner was followed as she left the

residence in her car and drove to a mill

She was also followed on the following

morning, when she left the mill and returned

to the residence. Police continued to waten

the house that day, but did not observe

anything. (Tr. p. 41, line 16 p. 4

5; p. 70, lines 7-17).

Although a check of the license plate

on Petitioner's car revealed that it was

registered to another address - 1.@.,

Greenwood Trailer Park - the car was never

seen there when Sgt. G. Douglas Gunter, Jr.

checked. (Tr. p. 49, line 10 - p. 50, line

> p. 70, line 18 - p. 71, line 19).

On the afternoon of Friday, November

* References to the appellate record

filed with the Supreme Court of South

Carolina in this matter are indicated by

sii! ps gar >.” and gat a

24, 1989, Sgt. Gunter obtained a _ search

warrant for the residence located on the

corner of East Cambridge Street and

Willowdale Court in Greenwood. (Tr. OB. Gk,

lines 8-14).

From that time until Thursday, November

30, 1989, Petitioner's Cadillac was the only

car in which Petitioner or Dillard were

observed. (Tr. p. 42, lines 15-22; p. 45,

lines 4-21). The car was seen at the

residence several times; it was always

parked on the street directly in front of

the gate to the fence. Petitioner was

either seen going into or coming out of the

residence on a couple of occasions. (Tr. Pp.

50, lines 7-24).

At approximately ten o'clock p.m. on

November 30, 1989, Sgt. Gunter, Captain

Ronnie McAllister, and Officer Charles

McLeod went to the residence to execute the

search warrant. Capt. McAllister knocked on

the door and, when it was opened by an

unidentified female, identified themselves

and their purpose for being there. As the

officers entered the apartment, they saw

Dillard and Petitioner laying in a bed in

front of the door. Petitioner, who was

asleep, was awakened and the officers began

their search. The search of the apartment

revealed three (3) partially consumed

marijuana cigarettes; one (1) was located

beside the bed and two (2) were located in

the bathroom. The search also disclosed two

(2) hand held scales that would measure up

to an ounce; they were found in a coat

Petitioner identified as belonging to her.

Capt. McAllister then arrested Petitioner

and Dillard for possession of marijuana.

(Tr. p. 47, lines 2-15; Pp. Ga, a2ne 26> ®.

64, line 2; p. 65, lines 12-25; p. 75, line

2 - p. 83, line 1; p. 83, lines 15-23; p.

84, line 9 - p. 85, line 9; p. 85, line 13

p. 86, line 16; p. 91, line 5 ~- Pp. 92, line

10; p. 98, lines 5-10).

While Capt. McAllister and Officer

McLeod conducted the search of the

apartment, Sgt. Gunter asked Petitioner for

the keys to her car. He then went out and

searched it. While the search of the

passenger compartment revealed no

contraband, the search of the trunk revealed

a quantity of plant material believed to be

marijuana. Inside a blue sports bag located

in the trunk, Sgt. Gunter found eleven eey

plastic bags of plant material, a box of

zip-loc plastic bags, a roll of black tape

and a black pocketbook; the black pocketbook

contained six (6) bags of plant material and

two (2) black tape-wrapped objects which,

when opened, were found to contain plant

material. (Tr. p. 47, line 15 - p. 48, line

5; p. 50, lines 3-6; p. Si, Line 21-3 B. "a3

line 18; p. 57, lines 9-13; p. 58, lines 4-

1l; p. 64, line 3 - p. 65, line ee

Sgt. Gunter carried the sports bag to

Capt. McAllister who inventoried its

contents. (Tr. p. 59, line 20 - p. 60, line

&). At that time, Captain McAllister

advised Petitioner and Dillard that they

were being arrested for possession of

marijuana with intent to distribute. (Tr.

p. 83, line 23 - p. 84, line 3).

Petitioner was subsequently indicted

and tried for the offenses of possession of

marijuana and possession of marijuana witn

intent to distribute. At the conclusion of

her jury trial, she was found guilty of

possession of marijuana with intent to

distribute and accordingly sentenced. (ir.

Os £)}<

Petitioner appealed her convictions to

the Supreme Court of South Carolina. In

affirming her convictions and sentences in

an unpublished memorandum opinion, the state

court rejected Petitioner's challenge to the

trial court's denial of her motion to

suppress marijuana found during a search of

her car. That opinion reads, in pertinent

part, as follows.

Affirmed pursuant to Supreme Court

Rule 23 and the following

authorities: Exceptions 1-4:

State v. Dean, 262 68.C. 135, 3h7

S.E.2d 744 (1984); California v.

Carney, 471 U.S. 386, 105 S.Ct.

2066, 85 L.Ed.2d 406 (1985)....

State v. Ouzts, Supra. Petitioner timely

filed a Petition for Rehearing which was

denied by the Supreme Court of South

Carolina.

Facts Relating to Motion to Suppress

(Argument)

At the beginning of Petitioner's trial,

Petitioner's counsel moved to suppress

evidence seized from Petitioner's car. (Tr.

p. 2, lines 13-15; p. 2, lines 22-23). The

trial court then held an in camera hearing

on the motion during which both the State

and the defense presented evidence.

The State called Sergeant George

Douglas Gunter, Jr., of the Greenwood County

Sheriff's OLTice, to the stand. He

testified that during the week of November

reliable onfidential informant that there

was a quantity of piant aterial believed to

be mar yana inside the garage apartment

ated n the rne! f East imbridge and

Willowdale in Greenwood County. sgt. Gunter

was als told that a man named Butcnh D1 llard

lived in the apartment with his gl! riend

Pat, and anotner fremaiec, Judy Basea updo!

> } < ~ * YN) , y ++ *y a , _ +

L \ . hiida iS iite See ' Ly IU « AwyUiliccCd \ bi + e

surveillance f the apartment; his

bl ~<a 7 me nes = , ] - > ‘ - . 7 ~

surveillance revealed that the apartment was

« 1 ; +} > ~“h + } . oo 5 7

it atvea WIitTNI1I a cnall?n As K Lence, tnere was

¥ + . ‘7 , q - bh + + } © ~

QI lveway ana Line gate VX Cne Llenc e

non + '.7 1 ber <F7 , + ] — _ ler +

opened onto a waikway which led directly to

‘tment door. During the time the

—

—"

apartment was watched, the only car seen

going to or from it was that belonging to

Petitioner she was by herself sometimes

and, at other times, Butch was in the car

with her. Petitioner was followed, on at .

apartment late at night and drove to

Greenwood Mills where she worked. (TEs DP

3, line 8 p. 4, ine l; p. 4, ine p.

6, line 19; p. 8, lines 11-18; | 9, lines

1-13; p. 14, line 13 i 5, line 4; p. 16,

ines 6 O; p 9, nes 6-12; Pp 9, line

13 p. 20, line 7; Pp 21, lines 4-9; p. 41;

lines 10-23; p. 23, ines 20-24 A check

on the license plate on Petitioner § i

revealed that it was registered to another

address, i.e., Greenwood Trailer Park. Sgt.

Gunter

times,

(sre. BD:

Gunter

the res

Willowdale

accordingly went by the Park several

but never saw Petitioner's car there.

15, line 8 - p. 16, line 3)

Friday, November 24, 1989, Sgt.

obtained a search warrant covering

idence located at the intersection of

Court and East Cambridge Street

occupied by "Butch" and any and all vehicles

owned

occupants of the residence.

or operated "Butch" or other

At the time the

warrant was issued, Sgt. Gunter

_believed that Petitioner and another woman

named Judy lived in the apartment with

Butch; however, because the confidential

informant did not know Petitioner except by

the name "Pat", Sgt. Gunter did not list

either Petitioner or Judy by name in the

search warrant as being an occupant of the

residence. (Tr. p. 8, lines 4-10; p. 9,

lines 3-13; p. 19, line 13 - p. 20, line 7;

pp. 106-108).

On the afternoon on Friday, November

24, 1989 -- after the search warrant had

been issued -- Sgt. Gunter was again

contacted by his confidential informant. At

that time, he was told that the subjects

would be getting a larger quantity of

marijuana over the weekend and would have it

the first part of the following week. The

informant also stated that Pat was carrying

the marijuana to work. Because of this

information, the search warrant was not

executed at that time and Sgt. Gunter

continued his surveillance of the residence.

(Te. 6. 6, line 20 - p. 7, line 17; p. 16,

lines 11-20; p. 17, line 5 - p. 19, line ~ F

p. 20, lines 18-20; p. 22, lines 4-17).

Sgt. Gunter also testified that when

the search warrant was executed on Thursday,

November 30, 1989, Petitioner's car was

parked on the street in front of the gate;

he observed no other cars in the area. ey

Bt, aine 18-25; p. 9, line 14 - p. 10,

line 7; p. 23, line 25 - p. 24, line 7).

Sgt. Gunter, accompanied by Captain

McAllister, knocked on the door of the

apartment and it was opened by Judy; they

identified themselves and explained that

they had a search warrant for the residence.

As they entered the apartment, they saw

Petitioner and George "Butch" Dillard asleep

in a bed directly in front of the door. A

young child was seen laying on the couch.

The officers found partially consumed

marijuana cigarettes in the apartment; one

(1) was beside the bed. (Tr. p. 10, line &

- p. 1l, line 3). After getting the keys Ps

her car from Petitioner, Sgt. Gunter then

went outside and searched it. In the trunk

he found a blue sports bag containing seven-

teen (17) bags of plant material and a

pocketbook in which two (2) wrapped-up

packages of plant material were loca-ed.

Also found in the pocketbook was a

prescription bottle with George Dillard's

name on it and papers referring to him.

(Tr. p. 11, line 6 - p. 12, line 10; p. 13,

lines 6-21). The sports bag was turned over

to Captain McAllister who then arrested

Petitioner and the others. (Tr. Be Ads

lines 11-23).

Sgt. Gunter testified that an analysis

of the plant material found in Petitioner's

car revealed it to be marijuana. An

analysis of the partially consumed

cigarettes found inside the apartment also

revealed them to be marijuana. (Tr. p. 12,

line 24 - p. 13, line 5; p. 135, iines 2é-

24).

At the conclusion of Sgt. Gunter's

testimony, the defense presented that of

Petitioner. She began her testimony by

stating that while she had visited George

Dillard and his mother on a number of

occasions at their apartment, she was living

at Lot LT Greenwood Trailer Park in

November. 1989. She also stated that the

garage apartment was at least five (5) feet

from the road and that the gate to the fence

was the only access to the apartment from

the road; she stated that a car could not be

driven directly to the garage apartment.

She testified that when she visited Dillard

on November 30, 1989, she parked her car on

the public road outside the fence to the

apartment, but it was very close to the

fence. (Tr. p. 27, line 3 - p. 30, line 25;

p. 31, line 23 - p. 32, line 8).

At the conclusion of the suppression

hearing, Petitioner's counsel argued that

inasmuch as the search warrant did not

indicate that Petitioner's car was included

within its scope, the police improperly

searched it because it was not within the

curtilage nor did they have probable cause

to conduct a warrantless search of it. (Tr.

p. 32, line 10 - p. 34, line 2; p. 34, line

14 - p. 35, line 2; p. 38, iines 16-25).

The State opposed the motion and argued that

the search of Petitioner's car was lawful

inasmuch as the police had a reasonable

basis for believing that she was an occupant

of the residence and was therefore covered

by the search warrant. The State also

argued that Sgt. Gunter's corroboration of

the information given by the confidential

informant provided probable cause to search

the car. (Tr. p. 35, line 4 - p. 38, line

14). The trial court denied the motion to

Suppress. (Tr. p. 39, lines 1-10).

Thereafter, in the presence of the

,reus + Cc + + ry . r+ + rsran yo + +heo

}ULY , the ~~ EA EH presented evidence ‘ LCNne

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4 h “ay *

The Supreme Court of South Carolina

properly upheld the trial court's denial of

Petitioner's motion to suppress marijuana

found during the search of her car because

the car was covered by the search warrant

and, even if it were not covered, probable

cause existed to justify the search of the

car under the automobile exception to the

warrant requirement.

nasmuch as the evidence presented

j y the suppression hearing demonstrated

that Petitioner's car was covered by the

earch warrant and, even if not covered,

that probable cause existed to justify a

warrantiess search of the car, the Supreme

urt 9X South Carolina properly uphe i the

1ienial : tne moti t SuUppre

ne earci! warrant pt Dy the

r é in th ase describ the pre

t pe searcneda as |] LilOows:

The residence occupied by "Butc!

r hial: Lo . . va. On th > COrna ry ? *

BJ Lng Ocacted Uiil \ l€ OF OP ae -F j i

‘. ae ‘ r ft ‘.7 ] ‘+

CamDpDI 1ldqe 2G and illowdale UT

eal " n ta — gan) 4 } }

rne sala residence will be nm GH

] ; r an - , a " . TT’ } .

left behind the corner house. rhe

- ~t{ Aan ot I - —T

residence will be >| Garage Lye,

= ~ r mx 7 th + + . mya +

two story white frame structure

Surrounded in chain link fence and

having wooden steps leading up ti

: pepe : URGES al

the Apt. being upstairs. Any and

all vehicles owned or operated by

Butcn or occupants of residents.

. ry e 3

tae ¢ k 108). me supporting .:

\I I P| lav t A vv I l€é ] aim St Lt I t ] ead Ly

y- a T + . + by "+

cos os 28 , [t -1s lear that the warrant

vers all vehicles owned r operated by the

. ‘ + + =r)

U4 } antsS A cne at al Mele. And, aest 1te

-+nHoO | y + + Do Norte ~ - c

the Known fact that Petitioner's car was

. . " r+ . IAr 7 : =< .

registered to another acdress, there was

es ‘ “0 -—Anah . 1c¢ , hel 3 , + t

more than reasonable cause to believe that

> .

Clear that Petitioner's car fell within the

scope of the search warrant even though it

was parked on a public road. See United

States v. Gentry, 839 F.2d 1065, reh.

denied, 844 F.2d 788 (5th Cir. 1988); United

States v. Percival, 756 F.2d 600 (7th Cir.

1985); People v. Juarez, 770 P.2d 1286

(Colo. 1989). There wasS no error in the

state court's ruling upholding the denial of

the motion to suppress.

However, assuming arguendo this Court

should find that Petitioner's car was not

covered by the search warrant, the search

was still proper inasmuch as it fell within

the automobile exception to the warrant

requirement.

The Constitutions of both the United

States and the State of South Carolina

generally proscribe warrantless searches and

seizures. U.S. Const. amend. IV; S.C.

Const. art. I, Section 190. In Katz v.

United States, 389 U.S. 347 (1967), this

Court held that "searches conducted outside

the judicial process, without prior approval

by judge or magistrate, are per se

unreasonable under the Fourth Amendment --

subject only to a few specifically

established and well-delineated exceptions.”

Id., at 357. One of the exceptions noted by

the Court was the automobile exception which

is predicated on the "long-standing

distinction

between a search of a store,

dwelling house or other structure

in respect of which a proper

official warrant readily may be

obtained, and a search of a ship,

motor boat, wagon or automobile,

for contraband goods, where it is

not practicable to secure a

warrant because the vehicle can be

quickly moved out of the locality

or jurisdiction in which the

warrant must be sought.

Carroll v. Unitec States, 267 U.S. 132, 153

(1925). See also United States v. Ross, 456

U.S. 798, 806-807 (1982); State v. Cox, 290

S.C. 489, 351 S.E.2d 570 (1986); State v.

Bailey, 276 S.C. 32, 274 S.E.2d 913 (1981);

State v. Peters, 271 S.C. 498, 248 S.E.2d

S75 (i978).

Since its decision in Carroll v. United

States, Supra, this Court has addressed the

parameters of the automobile exception in

numerous cases. For example, in Cardwell v.

Lewis, 417 U.S. 583 (1974), a majority of

the Court upheld the warrantless search of

an automobile lawfully parked in a public

place. The plurality upheld the warrantless

seizure on the grounds that the police had

probable cause to believe the automobile was

evidence of a crime and prompt action was

necessary because members of the defendant's

family might remove the automobile. Id., at

a) ee The mobility of automobiles

"creates circumstances of such exigency

that, aS a practical necessity, rigorous

enforcement of the warrant requirement is

impossible." South Dakota v. Opperman, 428

U.S. 364, 367 ° (i976). The automobile

exception has been held to be applicable

even "in cases in which the possibilities of

the vehicle's being removed or evidence in

it destroyed were remote, if not = non-

existent." Cady v. Dombrowski, 413 U.S. 433

(1973) (exception applied to a locked

automobile trunk).

As recent as 1985, this Court reit-

erated that under the automobile exception,

probable cause alone is sufficient to

justify a warrantless search of a vehicle

lawfully parked in a public place provided

that the scope of the search is reasonable.

California v. Carney, 471 U.S. 386 (1985).