# Opposition Brief — Harris v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0113%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1992 - **Citation:** 506 U.S. 827 ## 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 TO 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 ) Uy 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 ii TABLE OF AUTHORITIES Cases: Cady v. Dombrowski, 433 (1973) California v. Carney, 386 (1985) 413 VU. S. 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, 1] 12 10 12 10 13 11 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 1 + i ae ‘ > | No. 91-1224 IN THE SUPREME COURT OF THE UNITED STATES October Term, 1991 PATRICIA ANN OUZTS, Petitioner, Ws STATE OF SOUTH CAROLINA, Respondent. BRIEF IN OPPOSITION TO 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 NO > 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 £)} } ‘ - . 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 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 : = . L 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 18 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 19 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 20 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). See also State v. Cox, supra. (T]he justification to conduct such a warrantless search does not vanish once the car has been immobilized; nor does ~it depend upon a reviewing court's assess~- ment of the likelihood in each particular case that the car would have been driven away, or that its contents would have been tampered with, during the pericd required for the police to obtain a war- rant. Michigan v. Thomas, 458 U.S. 259, 261 (1982). See also United States v. Ross, 456 U.S. at 807, n. 9; State v. Cox, Supra. In 21 Chambers v. Maroney, 399 U.S. 42, reh. denied, 400 U.S. 856 (1970), the Court stated that there is "no difference [for constitutional purposes] between on the one hand seizing and holding a car _ before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment." Id., at 51-52... The Record in this case shows that the police had reason to believe that Petitioner was involved in dealing drugs and that evidence of such could be found in her car. As previously stated, they had learned from a reliable informant that there was marijua- na in Dillard's apartment -- which the informant and the police believed was shared by Petitioner -- on Wednesday, November 22, 1989. After watching the apartment for two (2) days -- during which the only car 22 observed going to or leaving the residence was that of Petitioner -- the police obtained a search warrant, covering the residence and the vehicles belonging to any of its occupants, on November 24, 1989. Later that afternoon, the reliable informant told police that Dillard would be getting a larger quantity of marijuana over. the weekend and that it would be in the resi- dence by the beginning of the coming week; the informant aiso stated that Petitioner was carrying the marijuana to her work place. For the next five (5) days, the police continued with their surveillance, but did not execute the warrant; during that time, Petitioner was followed as she drove her car from Petitioner's residence to Greenwood Mills where she worked and, when she finished her shift, back. This information and knowledge -- along with the discovery of (1) partially consumed marijuana cigarettes in the apartment near a 23 bed occupied by Petitioner at the time the police entered the residence to execute the ho search warrant and /( scaies found inside } a coat belonging to Petitioner which was in the apartment during the execution of the search warrant - clearly provided probable cause to beiieve that contraband would be found in Petitioner's car. See State v. Dean, 282 S.C. 136, 317 S.E.2d 744 (1984). .< J of Consequently, the warrantless’ search Petitioner's car was permissible under the automobile exception to the warrant require ment. The trial court properly denied Petitioner's motion to suppress and its ruling was, consequently, properly upheld by the Supreme Court of South Carolina. CONCLUSION For the reasons set forth hereinabove, it can only be concluded that the Supreme Court of South Carolina properly interpreted and applied its decisions as well as those 24 of this Court. There is, therefore, no issue for this Court to decide and the Petition for a Writ of Certiorari should be denied. Respectfully submitted, T. TRAVIS MEDLOCK Attorney General Post Office Box 11549 Columbia, SC 2921 (803) 734-3727 AMIE L. CLIFFORD* Assistant Attorney General .O. Box 70100 February 19, 1992 ALC 25 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0113%3A2. Public record. Not legal advice.