Petitioners Brief — Cardwell v. Lewis
Supreme Court brief1974
Ask Donna
What actually matters in this document.
Text
wv
TALE Copy
IN THE
Supreme Court of the United States
OCTOBER TERM, 1972
No. 72-1603
HAROLD J. CARDWELL, Warden,
Ohio Penitentiary,
Petitioner,
v.
ARTHUR BEN LEWIS,
Respondent.
On Writ oF CERTIORARI TO THE UNITED STATES CouRT
oF APPEALS FOR THE SixtTH CIRCUIT
PETITIONER'S BRIEF
WILLIAM J. Brown,
Attorney General of the State of
Ohio
Lzo J. Conway,
NicHo.tas R. Curci,
Assistant Attorneys General
JEFFREY L. MCCLELLAND
48 E. Gay Street, Room No. 202,
Columbus, Ohio 43215,
Attorneys for Petitioner
MIDWEST LAW PRINTERS AND PUBLISHERS, INC., Columbus, Ohio 43216
>
SUBJECT INDEX
ec ce te me me ee a ee a ae ee ee a ee we we ee oe
er IE aes
en ere
ee Oe We Coe ea
7, eens Of Parte io
Summary of Argument ____-__-____-
Mm bois 8
The United States Court Of Appeals Erred In Af-
firming The Decision Of The United States Dis-
_ trict Court That Paint Samples Taken From Re-
spondent’s Automobile Which Had Been Legally
Seized As Incident To His Arrest Were Admitted
In Evidence At Respondent’s Trial In Violation
Of His Rights Under The Fourth And Fourteenth
Amendments To The Constitution _____________
1) The Courts Below Erred In Ignoring The Find-
’ ing Of Fact Made By The Trial Court Following
A Full Voir Dire Hearing On A Motion To Sup-
press Which Finding Of Fact Was Clearly Sup-
marie Ty Tine MOOG. spi ess
2) The Courts Below Erred In Finding That The
Arresting Officers Had Not Seized Respondent’s
Automobile Incident To A Lawful Arrest After
The Trial Court Had Made Such A Finding
Based Upon Relevant Evidence Before It. ______
3) The Courts Below Erred In Finding That It Was
Illegal To Remove An Automobile From A Near-
by Public Parking Lot To The Police Pound For
Examination By Technical Experts When It Was
i
12
15
21
Page
Removed After A Valid Seizure Of A Parking
Ticket To The Automobile By The Arresting Of-
ficers Who Had Good Reason To Believe It To
Have Been Used In The Comission Of A Crime
For Which Respondent Was Arrested. __-______ 24
4) The Courts Below Erroneously Held That After
An Automobile Had Been Seized Incident To A
poe Arrest And Was In The Sole Possession
e Police That It Was Necessary To Procure
A Search Warrant In Order To Examine The Car
For Tire And Paint enpartene. DDE EMR 27
Come oie ae a 35
TABLE OF AUTHORITIES CITED
sa
Page
Brinegar v United 4 States, 338 U.S. 160 (1949) __-. 15
Brown v Wisconsin State Department of Public
Welfare, 457 F.2d 257. (7th Cir. 1972) _-------- 21
Cady v Dombrowski, __ U.S. __ 37 L.Ed. 2d 706
Be fae CR eee i mi Rok acct 21, 23, 33, 35
Carroll v United States, 267 U.S. 132 (1925) __15, 23, 30
Carlton v Bstelle, 480 F.2d 759 (5th Cir., 1973) _.-- 2
Chambers ® Maroney, 399 U.S. 42
(0 12, 23, 26, 30, 31
Commonwealth v Smith, 304 A.2d 456 (1973) _ 30, 31
Coolidge v New Hampshire, 403 U.S. 443
Gi... 11, 18, 19, 21, 23, 28, 29, 30, 31, 32, 35
Cooper v California, 386 U.S. 58
C1IGGN) sib i es 14, 18, 22, 30, 32, 33
Cotton v United States, 371 F.2d 385 (9th Cir., 1967) :
Cupp v Murphy, -- U.S. -_ 36 L.Ed 2d 900 (1973) a
Desist v United States, 394 U.S. 244 (1969) _-_---- ;
ii
Page
” Drummond v United States, 350 F.2d 983 (8th Cir.,
i nA RREGOP CR OD Say OE 23
Dyke v Taylor Implement Mfg. Co., 391 U.S. 216
SRE ek SESS SERRA age a Se 15
Fuller v Alaska, 393 U.S. 80 (1968) _________-_-_-_ 19
Hall v Craven, 325 F. Supp. 516 (C.D. Cal., 1971) __ 20
Harris v United States, 390 U.S. 234 (1968) ___25, 32, 33
La Vallee v Rose, __ U.S. __ 35 L.Ed. 2d 637 (1973)_
13; 18; 22
Leavitt v Howard, 462 F.2d 992 (1st Cir., 1972) ____ 21
Lewis v Ohio, 400 U.S. 959 (1970) _._-_-_______- 4, 11, 19
Linkletter v Walker, 381 U.S. 618 (1965) ___.__-_- 19
Mapp v Ohio, 367 U.S. 643 (1961) ____-_____--____ 19
Orricer v Erickson, 471 F.2d 1204 (8th Cir., 1972) _. 23
Paulson v Florida, 360 F.Supp. 156 (S. D. Fla., 1973) 20
People v Teale, 450 P.2d 564 (Cal., 1969) ________ 14
Preston v United States, 376 U.S. 364 (1964) ______ 30
Schneckloth v Bustamonte, _ U.S. __ 36 L.Ed 2d 854
ee 36
Smith v Slayton, 484 F.2d 1188 (4th Cir., 1973) ____ 23
State v Lewis, 22 Ohio St. 2d 125 (1970) ______ 3, 11, 18
Thompson v United States, 484 F.2d 942 (6th Cir.,
es I 23
United States v Bozada, 473 F.2d 389 (8th Cir., 1973)
cert. denied 93S.Ct.2161_ 26
United States v Bright, 471 F.2d 723 (5th Cir., 1973) 25
United States v Candella, 469 F.2d 173 (2d Cir.,
(te ATEC eR RE EE 2 ae es a 25
United States v Cecil, 457 F.2d 1178 (8th Cir.,
(EE SUES MRS ee fb a ne ee pc 23, 25
United States v Francolino, 367 F.2d 1013 (2d Cir.,
(Sa SSE GRRE EE mn a 23
—x
Page
United States v Graham, 391 F.2d 439 (6th Cir.,
2) REE TSE SCNT Cate SES CRONE ONE lOO ee ene 13
United States v Gulledge, 469 F.2d 713 (5th Cir.,
i BRN CEN DST a vas OM TS SE LY ELE Se Cole Ong EA Ae 23
United States v Johnson, 413 F.2d 1396 (5th Cir.,
1968) Lisiicc IOI GF a SP Oe er 13, 14
United States v Powers, 439 F.2d 373 (4th Cir.,
IPERS i Le Ue es a 14
United States v Rabinowitz, 339 U.S. 56 (1950) __-_ 15
United States v Sheard, 473 F.2d 139 (D.C. Cir.,
OUD) isin ai ee a 20, 25
United States v Shye, 473 F.2d 1061 (6th Cir., 1973) 23
United States v Valen, 479 F.2d 467 (3rd Cir., 1973) 26
United States v Ware, 457 F.2d 828 (7th Cir., 1972). 13
United States ex rel. Griffin v Vincent, 359 F.Supp.
1072 ( S. D. N. Y. 1973) CEE TRO tk ee eee 20
Warden v Hayden, 387 U.S. 294 (1967) __..----- 18, 21
Constitutional Provisions
United States Constitution, Fourth
Asmendmaet :. 55 eas 2, 13, 15, 22, 34, 36
United States Constitution, Fourteenth
Amendment EET IOUT are YE 3, 34, 36
Title 28, U.S.C. Section 1254(1) ~..-_------------ 1-2
Statutes
Section 2933.21, Ohio Revised Code ~-..--~--~-~~- 21
Section 2941.36, Ohio Revised Code -..-.------. 21
IN THE
Supreme Court of the United States
OCTOBER TERM. 1972
No. 72-1603
HAROLD J. CARDWELL, Warden,
Ohio Penitentiary,
Petitioner,
Vv.
ARTHUR BEN LEWIS,
Respondent.
On Wait OF CERTIORARI TO THE UNITED STATES COURT
or APPEALS FOR THE SIXTH CIRCUIT
PETITIONER'S BRIEF
Opinions Below
- The opinion of the United States Court of Appeals for
the Sixth Circuit entitled Arthur Ben Lewis v Harold J.
Cardwell, Warden, No. 72-1679, is set forth as Appendix
A to the Petition for Writ of Certiorari at page 27
thereof.
The prior opinion of the United States District Court
for the Southern District of .Ohio, Eastern Division en-
titled Arthur Ben Lewis, Jr. v Harold J. Cardwell,
Warden, Civil Action 71-76, is set forth as Appendix B
to the Petition for Writ of Certiorari at page 35 thereof.
Jurisdiction
The opinion of the United States Court of Appeals was
filed on April 5, 1973. The Petition for Writ of Certiorari
was filed in typewritten form on June 1, 1973 and in
printed form on or about November 3, 1973 and Certi-
2
orari was granted December 3, 1973. The jurisdiction of
this Court derives from 28 U.S.C. Section 1254(1).
Questions Presented
1. Whether, after a state trial court judge has, follow-
ing a full voir dire hearing, found the objected to evi-
dence to have been legally seized, which finding was sup-
ported by the record, the United States District Court
suould ignore this finding and conduct a separate evi-
dentiary hearing.
2. Whether, after an acknowledged valid arrest, re-
spondent voluntarily displayed to the arresting officers
a parking lot ticket and the keys to his automobile which
they believed to have been used by him in the perpetra-
tion of the crime for which he was arrested and these
articles were turned over to the.arresting officers either
voluntarily or involuntarily, a seizure incident to a lawful
arrest was consumated.
3. Whether, after a valid seizure of a parking ticket
and keys to an automobile which the arresting officers
had good reason to believé had been used in the com.
mission of a crime for which respondent was arrested,
which automobile was parked at a nearby public parking
lot, it was illegal to remove the automobile to the police
pound for examination by technical experts.
4. Whether, after an automobile has been seized inci
dent to a lawful arrest, and is in the sole possession. of
the police, it is necessary to procure a search warrant
in order to examine the car for tire and paint comparison.
Constitutional Provisions Involved
United States Constitution, Amendment IV:
“The right of the people to be secure in their per-
sons, houses, papers, and effects, against unreason
able searches and seizures, shall not be violated,
and no warrants shall issue, but upon probable cause,
wr
3
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 1,
in relevant part:
“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 property, without due proc-
ess of law; nor deny to any person within its juris-
diction the equal protection of the laws.”
STATEMENT OF THE CASE
A. History of the Case
On November 8, 1967, the Delaware County Grand
Jury returned an indictment charging respondent with
murder in the first degree in violation of $2901.01, Ohio
Revised Code. He was tried before a jury on March 4-21,
1968, and found guilty with the recommendation of
mercy. On March 29, 1968, he was sentenced to a term
of life imprisonment in the Ohio Penitentiary.
Prior to trial several defense motions were made and
decided. One, a motion to suppress evidence, was heard
by the trial court on January 25, 1968 (4A) and over-
ruled in a written opinion and order dated February 20,
-1968 (19A). The subject of this motion was the seizure
and examination of respondent’s automobile.
Respondent appealed his case directly to the Fifth Dis-
trict Court of Appeals for Delaware County, Ohio, which
affirmed the judgment of conviction on February 6, 1969.
Thereafter, respondent appealed to the Supreme Court
of Ohio which affirmed his conviction on May 13, 1970.
See State v. Lewis, 22 O.S.2d 125.
Respondent then filed a Petition for Writ of Certiorari
in this Court. Among those questions gene ia in that
petition was the following: :
4
“Were appellant’s rights under the Fourth and Fifth
Amendments abridged where appellant’s automo
bile, parked on a private lot one-half block from
site of appellant’s arrest, was seized and searched
without legal process of any kind—even though ap.
pellant had been out of the automobile for over eight
hours—and where the fruits obtained by such search
were received in evidence at appellant’s trial in the
state court?”
This Court denied the Petition for Writ of Certiorari,
See: Lewis v. Ohio, 400 U.S. 959 (1970).
In April of 1971, respondent filed a petition for the writ
of habeas corpus in the United States District Court for
the Southern District‘of Ohio, Eastern Division.
In this petition the following question, among others,
was raised:
“The warrantless seizure of his automobile, parked
on a private lot one-half block from site of his arrest,
for purpose of ascertaining as to whether said auto-
mobile had been an instrumentality of the crime,
violated Fourth Amendment prohibition where such
seizure was justified only after the seizure; (in
theory of the State’s case), further, the automobile
was not seized contemporaneous in ti e and place
with petitioner’s arrest, and evidence there-
from served as a basis of his convi ." {P. FH;
Appendix B to petition )
Th ube ainacnnenctisias hah een adeanamaaeil
Supreme Court of Ohio dealt with the use of hearsay
evidence by the State.
Following the filing of a Return of Writ and appoint-
ment of counsel, an evidentiary hearing .was_held on
April 20, 1972.
Thereafter, on May 19, 1972, the court issued an Opin-
ion and Order finding nine of the ten issues to be with-
out merit. (Page 35, Appendix B to Petition). However,
as to issue five, the court found that respondent had been
a :
|
denied due process of law and ordered “that the writ of
habeas corpus issue ninety days after the filing of this
Opinion and Order, and that petitioner be released from
custody, unless within such ninety day period State of-
ficials initiate action for a new trial of petitioner. If State
oficials initiate action for a new trial, it is ORDERED
(sic) that no writ of habeas corpus shall issue.”
‘Petitioner then filed a timely notice of appeal and
obtained a stay of execution. Oral argument was heard
cuit on December 8, 1972 and on April 5, 1973, the court
of appeals issued its decision affirming the opinion of
the district court. (Page 27, Appendix A to petition).
It is from this judgment of the court of appeals which
petitioner seeks this writ of certiorari.
B. Statement of Facts
At the trial of respondent, one Steven Molnar, Jr., a
laboratory technician and firearms examiner for the Ohio
State Bureau of Criminal Identification and Investiga-
tion, testified for the State. He testified that he took paint
scrapings from respondent’s car while it was at the Co-
lumbus police impounding lot. He also said that he had
paint scrapings which had been taken from the murder
victim’s car, which, it was thought, was pushed over the
river bank at the scene of the crime, by another car. This
examination occurred on October 11, 1967, and the paint
was taken from the right rear and the left front of re-
spondent’s car, and from the right rear fender and the
‘ight side of the rear fender of the victim’s car for pur-
poses of comparison. He went on to testify that, in his
opinion, there was
“. . no difference in color, texture, or order of
layering of the paint samples that I was comparing.”
(Bill of Exceptions, p. 221)
6
Furthermore, the color of paint was the same.
The paint samples from respondent’s car and testi-
mony were admitted over objection.
There was, however, a pre-trial hearing on a motion
to suppress filed by respondent. The motion concerned
the evidence and testimony referred to above. The hear-
ing was held in the trial court on January 25, 1968. Testi-
fying were Clyde Mann, then Chief Investigator for the
Division of Criminal Activities of the Attorney General
of Ohio, David Tingley, Attorney at Law, and Sgt. Wil-
liam Lavery, of the Delaware County, Ohio, Sheriff's
Office.
Facts adduced at this hearing were as follows:
Respondent was interrogated in the office of the At-
torney General, 40 S. Third Street, Columbus, Ohio, on
October 10, 1967, pursuant to a request to come to the
office. He was served with an arrest warrant and placed
under arrest late in the afternoon, after which his car
was impounded by the Columbus, Ohio, Police Depart-
ment.
Mr. Mann testified at the hearing that present during
‘the interrogation of respondent of October 10, 1967, in
the Attorney General’s Office, were Lavery, Jim Heise,
David Kessler, Ed James, respondent and himself. He
said that he told respondent, after he was arrested, that
he, Mann, was going to impound respondent’s car be
cause it was used in a felony, and that he had no war-
rant. On direct examination, Mr. Mann revealed that
respondent asked him to have his car impounded or put
in a police lot for safekeeping (10A).
Next to testify was David E. Tingley, Attorney at Law,
who testified that he witnessed the facts surrounding the
seizure of the automobile. He testified that at about 5:30
p.m. on October 10th, respondent was in custody and
7
that Clyde Mann indicated to Mr. Scott that he wanted
possession of some books and records respondent brought
with him as well as the automobile, because it was used
in the commission of a felony. Scott then, according to
Mr. Tingley, said that he would not enter into a physical
fight over the car and gave the keys to Mann. He then
got the parking ticket from respondent and gave it to
Mann.
Next to testify was Sergeant William Lavery. He
stated that he obtained a warrant for respondent’s arrest
on the morning of October 10, 1967. Furthermore, he
stated that he requested Mr. Mann to have the automo-
bile impounded but that, according to his recolletion,
respondent had asked the officers to watch the car as he
was concerned about it.
The trial court made the following finding:
“In this Court’s opinion the seizure of this car was
incident to a lawful arrest. In this Court’s opinion
the subsequent search of this car was a reasonable
search of a legally impounded vehicle and was inci-
dental to the crime for which the Defendant was,
arrested.” (26A)..
At the evidentiary hearing of April 20, 1972, in the
district court the testimony relative to the seizure and
search of the automobile elicited the following: Paul
Scott, defense counsel at the trial, testified that respon-
dent gave him the keys to his car shortly before or sub-
sequent to his being arrested, with instructions to return
the automobile to his (respondent’s ) family. He also gave
Scott the parking lot claim ticket. Furthermore, after
Scott’s arrival at the Attorney General’s Office and after
a conference with respondent, the arrest warrant was
served on respondent. After that, according to Scott,
Clyde Mann confronted Scott and demanded respondent’s
briefcase and automobile. Rather than get into a physical
confrontation with Mann, Scott relinquished the keys
and the claim check to Mann with the admonition that
he would see Mann in court on a motion to suppress.
On cross-examination, Mr. Scott testified that, although
there was no real threat from Mann, he did not will-
fully turn the automobile over to Mann, that it was done
under protest, subject to what would happen in a court
of law. His exact words were “Well Mr. Mann, I am
not going to have a physical confrontation with you for
that automobile. Here is the key. Here is the ticket, and
I will see you in court on a motion to suppress on that.”
(49A). “.. . [Tihere was no threat.” (52A). He acknowl-
edged that he did not give up the briefcase. (52A). Mr.
Scott did not question the validity of the arrest (50A).
He did not testify at the trial court hearing on the motion
to suppress.
Sergeant Lavery testified for the respondent. He stated
that, prior to the actual seizure of the car, he did know
the description of respondent’s car, that on the day of
the seizure he had no search warrant, and that respon-
dent asked that his car be taken care of (56A). The
Columbus police actually towed the car.
- On cross-examination, he stated that he believed the
request by respondent that his car be taken care of was
made about 5:00, while Mr. Scott was present. He fur-
ther said that, in his opinion, respondent’s request was
a general request made of no one in particular. He could
recall no discussion between Scott and Mann relative to
the car (59A). He also stated that he did not Know that
respondent’s car was parked on the lot south of the At
torney General’s Office (62A).
In answer to questions by the district judge, Sergeant
Lavery testified:
THE COURT: “You also testified that Mr. Lewis took
the parking lot ticket out of his pocket and asked if either
you or Mr. Mann—you weren’t sure which—could take
care of this automobile since you were going to take him
back?”
THE WITNESS: “Yes, sir, that is correct.” (60A)
* > * * * * z * *
THE COURT: “Sometime between 4:00 o’clock and
the time that the conference terminated, you took Arthur
Ben Lewis back to Delaware; that Clyde Mann demanded
Mr. Scott that he, Mr. Scott, turn over the keys to Mr.
Lewis’s car and the ticket to Mr. Lewis’s car. Do you
recall that Mr. Mann demanded that Mr. Scott turn over
the ticket and the keys to Mr .Lewis’s car?”
THE WITNESS: “No, sir, that isn’t correct at all be-
cause I recall precisely Mr. Lewis removing the parking
ticket and asking if some one of us would take care of
his car. I don’t recall the keys.” (61A).
. Respondent himself was next to testify on the issue
of illegal search and seizure at the evidentiary hearing.
He testified that he drove to the attorney general’s of-
fice and parked on a parking lot near that office. He also
denied that he asked anyone from the attorney general’s
office to remove his car saying that he gave his keys and
claim check to Paul Scott before he was arrested so that
Scott could take the car home for respondent’s family’s
use. Furthermore, he testified that the police officers did
have a description of his car (64-65A).
Clyde Mann was the first witness for petitioner to
testify relative to the search and seizure issue. He testi-
fied again that respondent requested Mr. Mann to take
care of his car and claim ticket. Furthermore, this oc-
curred at approximately 5:00 p.m., on October 10, 1967,
in the hallway inside the attorney general’s office and
that, to the best of his knowledge, the claim check was
10
handed directly to him by respondent. This confronta-
tion apparently occurred close in time to Mr. Mann’s re
quest of Scott for possession of respondent’s briefcase
(73A). Mr. Mann also again testified that he believed
the car was used in the commission of the crime and for .
this reason wanted the car (74A).
Sergeant Lavery was called by petitioner as his wit-
ness and testified on direct examination. He testified as
to facts he had in his possession on October 10, 1967,
relative to respondent’s involvement in the crime and
the role his automobile played in the commission thereof
(76-79A).
Summary of Argument
Arresting officers, in possession of a valid arrest war-
rant, inadvertently discovered that respondent’s auto
mobile, which they sought as evidence in the crime for
which he had been arrested, was parked at a nearby
public parking lot when respondent produced the park-
ing ticket in their presence and disclosed its location.
The police took the parking ticket, recovered the auto
mobile and removed it to the police pound where the
following day it was examined. Tire casts were made
and paint scrapings were taken for comparison with
foreign paint taken from the victim’s automobile which
had been pushed over a river bank by his murderer.
Prior to trial a motion to suppress the paint sample
was made and heard. The trial court, after a voir dire
hearing, in a well reasoned opinion found that the officers
had legally seized the parking ticket incident to the ar-
rest, that this constituted constructive possession of the
automobile, and that the subsequent removal and ex-
amination of the automobile was made incident to a
lawful arrest and upon probable cause.
This finding was clearly supported by the record and
—y
11
could not be considered to have been erroneous. In addi-
tion, the Supreme Court of Ohio, on direct appeal, had
found that the record supported the trial court’s finding
that the car had been seized incident to a lawful arrest
and examined as an instrumentality of the crime. State
v. Lewis, supra. This Court had denied certiorari. Lewis
v. Ohio, supra. The finding of the Ohio courts should
have been accepted by the federal district court in a
subsequent habeas corpus action. La Vallee v. Rose
__ US. __, 35 L.Ed. 2d 637 (1973).
In the habeas corpus petition respondent contended
that his automobile had been illegally seized and that
the paint scrapings and the comparison testimony was
improperly admitted in evidence. The district court con-
ducted an evidentiary hearing wherein the evidence
elicited did not vary materially from that in the state
trial court. One difference, however, did develop. Re-
spondent testified that he gave the parking ticket to his
attorney in the presence of the officers with instructions
to recover the automobile and deliver it to his family.
This was corroborated by the testimony of his trial at-
torney, Paul Scott. Neither had testified in the trial court
hearing on the motion to suppress. This supported the
belief of the officers that if the car was to be moved they
might never thereafter find it.
The district court refused to find, as had the trial court,
that the seizure of the parking ticket was not tantamount
to a seizure of the car incident to a lawful arrest, that
there were no exigent circumstances for its seizure, and
that since the arresting officers knew that they wanted to
seize the automobile they should have procured a search
warrant for it. The court erroneously relied on the deci-
sion of this Court in Coolidge v. New Hampshire, 403
U.S. 443 (1971) for its finding. Coolidge was not decided
—
a
12
until over three years after the officers had seized re
spondent’s automobile and the trial court had ruled upon
the motion to suppress.
The United States Court of Appeals for the Sixth Cir-
cuit followed the reasoning of the district court and
affirmed its decision on appeal.
This is not a Coolidge case. Although the officers in-
tended to seize respondent’s car, they could not have
procured a/Search warrant therefor until they knew its
location, and this knowledge came about only after his
arrest. Moreover, there were exigent reasons for them
to seize the car when and where they did. Otherwise they
should have had to place a guard on it until a search
warrant could be procured which, in effect, would have
produced the same intrusion on the rights of respondent
as would the seizure itself. Chambers v. Maroney, 399
US. 42 (1970).
Argument
. The United States Court Of Appeals Erred In
Affirming The Decision Of The United. States Dis-
trict Court That Paint Samples Taken From Re-
spondent’s Automobile Which Had Been Legally
Seized As Incident To His Arrest Were Admitted In
Evidence At Respondent’s Trial In Violation Of His
Rights Under The Fourth And Fourteenth Amend-
ments To The Constitution.
The United States District Court authored a lengthy
analysis of the allegation that admission of certain paint
scrapings at trial against respondent was violative of the
Fourth and Fourteenth Amendments. The court con-
cluded that the evidence was not seized as incident to a
valid arrest, that respondent did no® consent to its seizure,
and that the search was not justified as having been seized
in “plain view.” The court of appeals indicated it was in
“full agreement” with this opinion. Petitioner submits
13
such a conclusion was erroneous. The parking ticket for
the car was seized incident to the arrest. The car then
was taken by presenting the parking ticket to the park-
ing lot operator and was moved to the police pound
where the next morning it was examined.
Petitioner initially notes that the evidence complained
of by respondent in the courts below was paint scrapings
taken from the exterior surface of his car while it was
in the Columbus, Ohio, police impounding lot. No evi-
dence was admitted as a result of any intrusion to ‘the
car’s interior.
Petitioner contends, therefore, that such paint scrap-
ings were properly admitted against respondent at trial
as such scrapings were the result of a scientific examina-
tion of an instrumentality of the crime for which re-
spondent was arrested. Cf: Cotton v. United States, 371
F. 2d 385 (9th Cir., 1967); United States v. Graham, 391
F. 2d 439 (6th Cir., 1968), wherein it is stated at page
442:
“While it is true that the Constitutional proscription
against unreasonable searches and seizures extends
to automobiles, since they, like houses, legitimately
“Serve as repositories for personal effects and belong-
ings of the owners and occupants, this is immaterial
to the question presented at bar. No articles of evi-
dence separate from and independent of the cars
themselves were obtained as a result of the police
examination, as was true in such cases as Preston v.
United States, 376 U.S. 364, 84 S. Ct. 881, 11 L. Ed.
2d 777 (1964), and Cooper v. State of California, 386
U.S. 58, 87 S. Ct. 788, 17 L. Ed. 2d 730 ((1967).”
See also: United States v. Ware, 457 F.2d 828 (7th Cir.,
1972); United States v. Johnson, 413 F.2d 1396 (5ht Cir.,
1969).
~ But assuming that this examination did constitute a
search within Fourth Amendment contemplation, which
14
petitioner does not concede, such was valid as
.... the search of the car - - - whether the state had
legal title to it or not - - - was closely related to the
reason petitioner was arrested, the reason his car
had been impounded, and the reason it was being
retained.” Cooper v. California, 386 U.S. 58 (1967).
The record clearly indicates that the inspection of
respondent’s car was consistent with the reason the car
was impounded and with the reason for which respondent
was arrested. No intrusion was made to the interior and
' no general exploratory search for evidence of any kind
complained of in the courts below was conducted. The
car itself was evidence and the police had complete
dominion and control over it. As such, there could be no
further trespass committed by a subsequent examination.
Under the circumstances, therefore, it cannot be said
that the inspection and examination of the paint samples
in question for purposes of identification, which iden-
tification was consistent with the reason the car was
seized, was unreasonable. See, United States v. Powers,
439 F.2d 373 (4th Cir., 1971); United States v. Johnson,
supra.
In its simplest form the situation presented here in-
volves the propriety of the examination of a piece of
evidence after seizure. The case of People v. Teale, 450
P. 2d 564 (Cal., 1969) speaks to this eh tes aca at foot-
note 10, p. 572:
“Only an object reasonably believed to be itself evi-
dence of the charged crime is subject to seizure
and, therefore, to detailed examination subsequent
to seizure.”
Respondent’s automobile was reasonably believed to
have been evidence of the crime itself.
An analogous situation would be where perhaps a gun
believed to have been a murder weapon, or blood-stained
15
clothing believed to have been worn by a suspected offen-
der were in police possession. Can it be doubted that the
police have every right to examine such items consistent
with the reasons they were seized? Obviously not. Such
then, is the instant situation.
As to the seizure of the car, it must first be noted that
“automobiles, because of their mobility, may be searched
without a warrant upon facts not justifying a warrant-
less search of a residence or office.” Dyke v. Taylor Imple-
ment Mfg. Co., 391 U.S. 216, 221 (1968). See also, Brine-
gar v. United States, 338 U.S. 160 (1959); Carroll v.
United States, 267 U.S. 132 (1925). Petitioner submits
that such a proposition is equally applicable to seizures of
automobiles as it is to searches. Accordingly, the seizure
of the automobile was necessitated by the exigencies of
the situation compounded by the fact that the item or
evidence to be seized was a large, readily mobile entity
such as an automobile.
Additionally, at the time of the seizure and at the time
of the trial, the “relevant test (was) not whether it is
reasonable to procure a search warrant, but whether the
search was reasonable.” See: United States v. Rabino-
. witz, 339 U.S. 56 (1950). Petitioner submits that the
actions of the investigating authorities were at all times
reasonable and consistent with respondent’s Fourth
Amendment protections.
1) The Courts Below Erred In Ignoring The Finding Of
Fact Made By The Trial Court Following A Full Voir
Dire Hearing On A Motion To Suppress Which Find-
ing Of Fact Was Clearly Supported By The Record.
Prior to trial defense counsel filed several motions
one of which was a motion to suppress evidence seized
in and about respondent’s Pontiac automobile. The com-
plete proceedings on this motion to suppress appears at
———
pages 4-19A. At pages 19-27A is the-complete opinion of
the trial court in overruling the motion. The significant
part of his ruling was as follows:
“A complete record of the testimony and state
ment of counsel at the various hearings in this
i tha
alleged
the Decedent’s automobile. ioieeany plaster
and molds of automobile tire tracks and the results
of laboratory tests of samples of car paint are ex-
pected to be offered as evidence.
facts and circum stances of this case?’ In this Court’s
opinion it was.
‘It appeart so this Court that it was reasonable
for law enforcement officers to immediately seize a
the felony charged. The car was in the possession or
constructive possession of the Defendant; he had
the key and parking ticket for it. It was on a public
parking lot adjacent to the building in which public
State offices are located and where the Defendant
had just been arrested.
‘This is not a case in which a person’s home or
private structure has been unreasonably invaded.
This is not a case in which an individual’s person
has been reasonably searched.
‘In this Court’s the seizure of this car
was incident to a arrest. In this Court’s
opinion the subsequent search of this care was a
reasonable search of a legally impounded vehicle
and was incidental to the crime for which the De-
fendant was arrested.” (25-26A).
The trial court based its finding upon the fact that the
17
seizure of the automobile was incident to respondent’s
arrest, the legality of which never has been questioned.
“This was based upon the testimony that the parking
ticket, however turned over, was the claim for the car
which was parked in the vicinity and thusly construc-
tive possession of the automobile had passed from re-
spondent to the officers by the seizure of the parking
ticket. Petitioner submits that the vehicle, by virtue of
the parking ticket, then was picked up and removed to
the police pound: where it was held as evidence in’ the
case until it could be subjected to an examination and
tests. It was well known to respondent that the investigat-
ing officers believed his car had been used in the perpetra-
tion or cover up of the murder and that he had every
reason for concealing it.
The district court noted that after hearing the motion
to suppress, the trial court made no detailed findings of
fact. But the trial court was careful to note:
“No good purpose would be here served by re-
peating here all the evidentiary matters, oral and
written contentions of counsel and all the legal
authorities which were cited. As yet the complete
record of the hearing has not been transcribed; it
will be available to counsel and any reviewing
soorgia aneacant | is of the oan that, to enable
counsel adequate time to prepare for trial, it should
“<p on pe this ruling until that record is avail-
a eg
The transcript referred to by the trial judge was be-
fore the district court which then deemed it necessary
{0 conduct an evidentiary hearing of its own. Witnesses
Mann and Lavery testified in both the state and district
court hearings. The district court noted that this testi-
mony in the two hearings did not differ materially. Paul
Scott, who did not testify at the motion to suppress hear-
aC
18
ing, testified in the district court. This testimony did not
vary materially from that of David Tingley at the state
court hearing.
The district court also was fully aware that the Su-
preme Court of Ohio had found the car to have been
seized incident to a lawful arrest and examined as an
instrumentality of the crime and a was not an illegal
search (p. 52 App. B)."
“The district court ignored the findings of all Ohio
courts and found that the search of the car was not in-
cident to the arrest nor seized as an instrumentality of
the crime. It also found that the article seized was not
in plain view, was not voluntarily relinquished nor were
there any exigent circumstances to eliminate the neces-
sity of a search warrant. The court of appeals adopted
the findings of.the district court and emphasized that
there could have been no “exigent circumstances”, and
no “instrumentality of the crime” hence the seizure of
the car without a warrant was illegal. (pp. 30-32 App.
A).
There is no doubt that the trial court attempted in
every way to insure respondent’s claim of illegal search
and seizure was thoroughly heard. It also is clear that its
decision was not hastily and casually made but rather
was made after a thorough study of the law it believed
applicable at the time. This was some three. and one half
years before Coolidge v. New Hampshire, supra, so often
referred to by the courts below, was decided. It therefore
relied upon Cooper v California, supra and United States
v Rabinowitz, supra, and correctly interpreted the ruling
of this court in Warden v Hayden, 387 US 294 (1967).
It found by whatever means the seizure of the automobile
was made it was reasonable under existing authority.
*- State v Lewis 22 Ohio St 2d 125, 128.
19
It is petitioner’s contention that both the district court
and the court of appeals, in arriving at their decisions,
applied their interpretations of Coolidge v. New Hamp-
shire, supra, retroactively. This Court never has applied
any case dealing with the exclusionary rule retroactively.
Thus, in Linkletter v. Walker, 381 U.S. 618 (1965) it was
held that the rule of Mapp v. Ohio, 367 U.S. 643 (1961)
was to be applied prospectively. See Fuller v. Alaska,
393 U.S. 80 (1968), Desist v. United States, 394 U.S. 244
(1969). ?
This Court has recently held in the case of an alleged
involuntary confession, which consistently has been con-
sidered to go to the very heart of the fact finding process,
that-a state court’s determination of the merits of a fac-
tual issue, made after a hearing and evidenced by a writ-
ten opinion, shall be correct unless it appears that the
merits of the factual dispute were not resolved in the
state court hearing, where the trial court summarized the
evidence, and concluded that the confessions were vol-
untary.” Where, as here, the evidence is relevant and its
admission had no bearing on the innocence or guilt of the
respondent, it is believed that the rationale of Lavallee v.
Rose, supra should apply to a motion to suppress evi-
_dence. Linkletter v Walker, supra.
After the finding of the trial judge a long trial followed
which resulted in respondent’s conviction. Both the state
court of appeals and the Supreme Court of Ohio found no
fault with the findings of the trial court and this Court
seemingly noted no grievous error when it denied cer-
tiorari. Lewis v Ohio, supra. .
After a careful review of the trial court’s findings by
the Ohio Appellate Courts and of this Court on direct ap-
peal a collateral attack in federal habeas corpus should
* Lavallee v Rose, supra
20
not result in a reversal of the state court determination
unless it can be found that there was no basis for the trial
court’s findings. On direct appeal the determinations of
the trial court must be upheld unless they are clearly
erroneous. This is the generally accepted rule. Although
not directly in point, the United States Court of Appeals
for the District of Columbia recently stated:
“The ultimate determination by a trial judge at a
suppression hearing as to the issue of consent,
' whether it be consent to enter or consent to search,
is factual in nature. As such, under the guidelines
established for this court in Jackson v. United States,
122 U.S. App. D.C, 324, 353 F.2d 862 (1965), that de-
termination must remain untouched on appeal unless
it is “clearly erroneous.” See Hoover v. Beto, 467
F.2d 516 (5th Cir. 1972); United States v. J. B.
Kramer Grocery Co., Inc., 418 F.2d 987 (8th Cir.
1969); Schoepflin v. United States, 391 F.2d 390 (9th
Cir. 1968), cert. denied, 393 U.S. 865, 89 S.Ct. 146,
.21 L.Ed.2d 133 (1968); Green v. United States, 128
U.S.App.D.C. 408, 389 F.2d 949 (1967); Villano v.
United States, 310 F.2d 680 (10th Cir. 1962). A find-
ing is not “clearly erroneous” unless the reviewing
court is left with the definite and firm conviction that
a mistake has been made—the finding either is not
supported by or is clearly against the weight of the
evidence, or induced by an erroneous view of the
law. United States v. United States Gypsum Co., 333
U.S. 364, 63 S.Ct. 525, 92 L.Ed. 746 (1948.” United
States v Sheard 473 F2d 139 (D.C. Cir'1973).
Where a federal habeas corpus petitioner has raised the
same contentions in his appeal to state courts that he ad-
vances in his habeas petition and the state’s fact-finding
process was full and fair, presumption of correctness
should be applied to the state court’s findings. Cf: Hall »
Craven, 325 F. Supp 516 (C.D. Cal., 1971); Paulson »
Florida, 360 F. Supp 156 (S.D. Fla., 1973); United States
21
ex rel. Griffin v Vincent, 359 F. Supp 1072 (S.D.N.Y.
1973); Brown v Wisconsin State Department of Public
Welfare, 457 F.2d 257 (7th Cir., 1972); Leavitt v Howard,
462 F.2d 992, (1st Cir., 1972). This Court has stated that
the finding of facts of a state court should not be ignored
by a federal appellate court. Cady v Dombrowski
US 37 L. Ed 2d 706 (1973). The Supreme Court of
Ohio found that the officers had reasonable grounds to
believe that the car had been used in the furtherance of
the commission of the crime for which respondent was
arrested and that it was an instrumentality thereof. This
finding was ignored by the court below which brushed
off the instrumentality theory on the basis of Warden v
Hayden supra. In so doing the court of appeals, not the
Ohio Supreme Court, misconstrued the holding in that
case.
The facts before the state courts were that the car had
been used in the commission of the crime and was evi-
dence whether plain or as an instrumentality. The claim
check for the car came into view inadvertantly incident
- to the lawful arrest of respondent and as such was recog-
nized by this Court as an exception in Coolidge v New
Hampshire, supra at pages 465-466.
2) The Courts Below Erred In Finding That The Ar-
resting Officers Had Not Seized Respondent’s Auto-
mobile Incident To A Lawful Arrest After The Trial
Court Had Made Such A Finding Based Upon Rele-
vant Evidence Before It.
The trial court found that the seizure of respondent’s
automobile was incident to a lawful arrest. It based this
finding upon the fact that at the time of the arrest or im-
mediately thereafter respondent had turned over a claim
check to the law enforcement officers. This is not dis-
22
puted. The car, by virtue of the parking ticket, was in the
possession or constructive possession of the respondent
and physically was in a public parking lot adjacent to the
building wherein the arrest took place. The officers had
reasonable grounds to believe the car had been used in
the commission of the crime for which respondent had
been arrested. Lastly the court found that the car itself
then was seized in the parking lot and removed to the
police pound where it was searched (21, 25-26 A). The
court found that, “The arrest and seizure of the car were
in the same general transaction.” (26 A). The court based
its findings upon the rationale of Cooper v. California,
supra.
Petitioner submits that the seizure of the claim check
constituted the intrusion into respondent’s Fourth
Amendment protected area, which intrusion was justified
as being incident to the valid arrest of respondent. By
seizing the claim check at that time, respondent’s control
and dominion over the car effectively ceased. Quite obvi-
ously, without either of these items, the complete use of
the automobile by respondent was limited if not impos-
sible. Respondent’s “possession” of the car was dependent
upon the claim check, .
Of equal effect would have been the only other prac-
tical alternative available to the investigating authorities —
at the time; that being to have placed a guard at the car
and make it inaccessible to Scott until a warrant could
be obtained to remove the car. In either case, an intru-
sion into respondent’s Constitutionally protected domain
would have occurred, either of which would have been
justified. This Court has spoken to the practice of allow-
ing a “lesser” intrusion to justify a “greater” intrusion
of an individual’s Fourth Amendment rights:
“Arguably, because of the preference for a magis-
trate’s judgment, only the immobilization of the car
23
should be permitted until a search warrant is ob-
tained; arguably, only the ‘lesser’ intrusion is per-
missible until the magistrate authorizes the ‘greater.’ .
But which is the ‘greater’ and which the ‘lesser’
intrusion is itself a debatable question and the an-
swer may depend on a variety of circumstances. For
constitutional purposes, we see no difference be-
tween 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.” Chambers v. Maroney
supra, at 51-52 (1970). (Emphasis supplied )
Although the trial court found that the car Was seized
incident to a lawful arrest which petitioner contends is
fully supported by the record it also found that the subse-
quent search like that in Cooper was a reasonable search
of a legally impounded vehicle and was incidental to the
crime for which respondent was arrested. See also:
(Footnote 12, 403 US 457). Carroll vy United States,
supra. ;
“Never does the majority opinion in Coolidge v New
Hampshire, supra overtule Cooper. Cooper is distinguish-
ed as a case not based upon a search incident to a lawful
arrest but rather upon the seizure of an automobile which
the officers reasonable believed to have been used in the
commission of the crime.
grounds set forth in Cooper. See also: United States v
Francolino, 367 F2d 1013 (2d Cir., 1966); Orricer v Erick-
son, 471 F.2d 1204 (8th Cir., 1972); United States v Shye,
473 F.2d 1061 (6th Cir., 1973); Commonwealth v Smith,
304 A. 2d 456 (Pa. 1973); Drummond v United States,
350 F.2d 983 (8th Cir., 1965); United States » Cecil, 457
F.2d 1178 (8th Cir., 1972); United States v Gulledge, 469
24
F.2d 713 (5th Cir., 1972); Smith v Slayton, 484 F.2d 1188
(4th Cir., 1973); Thompson v United States 484 F.2d 942
(6th Cir., 1973).
3) The Courts Below Erred In Finding That It Was Il-
legal To Remove An Automobile From A Nearby
Public Parking Lot To The Police Pound Ffor Exami-
tion By Technical Experts When It Was Removed
After A Valid Seizure Of A Parking Ticket To The
Automobile By The Arresting Officers Who Had Good
Reason To Believe It To Have Been Used In The
Commission Of A Crime For Which Respondent Was
Arrested.
The arresting officers believed, and had good reason
to believe, that respondent’s automobile had been used
to push the victim’s automobile over a river bank. In so
doing the rear of the victim’s car had been damaged and
flecks of foreign paint were deposited thereon. This paint
was removed and samples were taken and forwarded to
the F.B.I. laboratory. Based upon the FBI report it was
learned that the paint could have come from a gold color-
ed 1966 Pontiac, the same as that of respondent. Investi-
gation disclosed that respondent’s 1966 Pontiac had been
taken to a body shop shortly after the murder for front
end repairs. The officers, therefore, consideféd the Pon-
tiac automobile to be valid evidence to be used in the
proof of the commission of the crime. The location of the
car became known to the officers at the time of arrest.
Even though the car was not under the direct control of
respondent in*the attorney general’s office the claim
check was turned over to the officers who then had con-
structive possession of the car (76-79A).
The officers were interested primarily in two areas, the
color and texture of the paint of the car and the make and
pattern of the front tires. This examination of the car
25
could not be done properly on a busy parking lot and was
’ pemoved to the police pound where the inspection was
completed. .
It is petitioner’s contention that the police had a right
to inspect the car on the spot and that, therefore, they
had a right to have it removed to the pound for proces-
sing. Cf: Carlton v Estelle 480 F2d 759 (5th Cir., 1973).
At the outset, although this argument was not accepted
by the courts below, petitioner contends that where re-
spondent produced the parking ticket after his arrest, it
was in plain view of the officers. He indicated that it was
a parking ticket for the car and the officers wanted the
car. They therefore took constructive possession of the
car at that time and deprived respondent or his agents
of the ability to take it. It is emphasized that the evidence
in plain view was pertinent to the crime alleged and was
not seized as a result of an exploratory search. It there-
fore was admissable under the “plain view” doctrine.
Cf: Harris v United States, 390 US 234, 236 (1968);
United States v Sheard, supra; United States v Bright,
471 F2d 723 (5th Cir., 1973); United States v Candella,
469 F.2d 173 (2d Cir., 1972); United States v Cecil, supra.
The court below refused to accept the “plain view”
theory for the reason that there were no exigent circum-
stances to seize the automobile without a warrant. This,
of course, is a completely erroneous finding. Both re-
spondent and his attorney Paul Scott testified in the dis-
trict court evidentiary hearing that respondent wanted
Scott to get the car and take it to his family. If this had
‘been done the automobile, as did the brief case which was
not seized and was not subsequently available to the
police, pending the procurement of a search warrant,
could have disappeared and never been found (48-49,
64-65 A). Had a guard been placed over the car to pre-
vent its removal pending the procurement of a search
-_
warrant respondent would have been in the same relative
position with respect to the inspection of the car as he
was under the immediate seizure. This Court in Cham-
bers v Maroney, supra, stated as page 51-52:
“Arguably, because of the preference for a magis-
trate’s judgment, only the immobilization of the car
should be permitted until a search warrant is ob-
tained; arguably, only the “lesser” intrusion is per-
missible until the magistrate authorizes the “great-
er.”” But which is the “greater” and which the “les-
ser” intrusion is itself a debatable question and the
answer may depend on a variety of circumstances.
# For constitutional purposes, we see no difference
between on the one hand seizing and holding a car
before presenting the probable cause issue to a mag-
istrate and on the other hand carrying out an im-
mediate search without a warrant. Given probable
cause to search, either course is reasonable under the
Fourth Amendment.”
See also: United States v Bozada 473 F.2d 389 (8th Cir.,
1973) cert. denied 93 S Ct 2161; United States v Walen
479 F.2d 467 (3rd Cir 1973).
Petitioner contends and earnestly believes that the
seizure of the car at that time was necessitated as the
authorities had reason to believe that a very valuable
piece of evidence was likely to be moved or destroyed.
The record bears out their fears. During the interrogation
session of October 10, 1967, in the attorney general’s of-
fice, respondent was made acutely aware of how the
authorities felt the car figured into the crime and what
part of the car was thought to have been used. There was
no reason to think that respondent could not have con-
tacted someone, friends or family, with instructions to
dispose of the car or conceal it from the authorities.
While the courts below could find no facts to justify the
seizure on the basis of exigency petitioner believes that
the facts, as set out above, which constituted a very real
26
27
prospect of concealed evidence, necessitated the seizure
of the car in the manner and method, that it was seized
and at the time it was seized.
The facts, which are largely uncontradicted, are
ignored by the courts below yet were apparently given
much consideration by the trial court, who was in the
best position to make the most valid judgment. The courts
below are clearly in error. Cf. LaVallee v. Rose, supra.
4) The Courts Below Erroneously Held That After An
Automobile Had Been Seized Incident To A Lawful
Arrest And Was In The Sole Possession Of The Police
That It Was Necesasry To Procure A Search Warrant
In Order To Examine The Car For Tire And Paint
Comparison.
It is not surprising that the courts below would choose
to ignore these uncontradicted facts. Both courts were
laboring under a misapprehension regarding the necessity
of a search warrant. Both courts seem to believe that
because a search warrant might have been readily obtain-
ed to effectuate a seizure at an earlier time, the conditions
otherwise justifying a seizure as incident to a valid arrest
are either absent or of no force or effect.
The fact is that a search warrant for the automobile
could not have been obtained prior to the time of respon-
dent’s arrest. When the police had finished their investi-
gation which was the basis for the arrest warrant they
had no knowledge of the whereabouts of respondent’s
automobile. The arrest warrant was issued in Delaware
County, Ohio, the situs of the crime. A search warrant
issued by the same court would have been invalid in
Franklin County, Ohio where the arrest took place. Sec-
tion 2933.21, Ohio Revised Code, provides that a judge
may issue a search warrant within his jurisdiction as op-
posed to an arrest warrant which may be served in any
28
county in the state. Section 2941.36, Ohio Revised Code.
Actually the arresting officers did not know the where.
abouts of the automobile until respondent produced the
parking ticket therefore at 5:30 P.M. on the day in ques-
tion. This parking ticket, by respondent’s own representa-
tion under either his or the state’s theory, was a claim
check for the automobile that they wanted to seize as hav-
ing been used in the commission of the offense for which
respondent had been arrested. It was in plain view to the
officers who just had arrested respondent pursuant to a
valid arrest warrant. Respondent told them where the car
was parked on a public parking lot. They knew that un-
less they seized the car that it could be removed and
never found. Mr. Justice Stewart speaking for the ma-
jority opinion in Coolidge v New Hampshire supra at
page 467-68 stated:
“The “plain view” doctrine is not in conflict with the
first objective because plain view does not occur
until a search is in progress. In each case, this initial
intrusion is justified by a warrant or by an excep
tion such as “hot pursuit” or search incident to a law-
ful arrest, or by an extraneous valid reason for the
officer’s presence. And, given the initial intrusion,
the seizure of an object in plain view is consistent
with the second objective, since it does not convert
the search into a general or exploratory one. As
against the minor peril to Fourth Amendment pro-
tections, there is a major gain in effective law en-
forcement. Where, once an otherwise lawful search
is in progress, the police inadvertently come upon a
piece of evidence, it would often be a needless incon-
venience, and sometimes dangerous—to the evidence
or to the police themselves—to require them to
ignore it until they have obtained a warrant particu
larly describing it.” .
At pages 469-471 he continued:
“The second limitation is that the discovery of evi
dence in plain view must be inadvertent. The ration
29
ale of the exception to the warrant requirement, as
just stated, is that a plain-view seizure will not turn
an initially valid (and therefore limited) search
- into a “general” one, while the inconvenience of pro-
curing a warrant to cover an inadvertent discovery
is great. But where the discovery is anticipated,
where the police know in advance the location of
the evidence and intend to seize it, the situation is
altogether different. The requirement of a warrant to .
seize imposes no inconvenience whatever, or at least
none which is constitutionally cognizable in a legal
system that regards warrantless searches as, “per se
unreasonable” in the absence of “exigent circum-
stances.”
At page 472 he concluded:
“In the light of what has been said, it is apparent
that the “plain view” exception cannot justify the
police seizure of the Pontiac car in this case. The
police had ample opportunity to obtain a valid war-
rant; they knew the automobile’s exact description
and location well in advance; they intended to seize
it when they came upon Coolidge’s property. And
this is not a case involving contraband or stolen
goods or objects dangerous in themselves.”
The factual situation in our case differs materially
from that in Coolidge. Unlike Coolidge there was no
search in progress but the officers did inadvertantly come
upon the claim check to the automobile they wanted as
evidence. They were not converting a limited search into -
@ general one. While they seized the claim check to the
automobile they did not seize respondent’s brief case
which they believed might have contained incriminating
evidence, and in spite of the finding of the courts below
there were genuine exigent circumstances for i
the claim check which was in fact tantamount to seizing
the automobile.
Prior to the discovery of the whereabouts of the auto-
mobile the officers did not have an opportunity to pro-
30
cure a search warrant for it. Whereas they knew the aiito-
mobile’s exact description they did not know its location,
and they had no expectation of finding it at the office of
the attorney general although they did intend to seize it
when they found it.
A study of a great number of cases has convinced this
writer that the majority decision in Coolidge is not clear-
ly understood by either state or federal courts. Not only
was there a variation of interpretations of the meaning
of the majority opinion, particularly concerning the ne-
cessity for a serach warrant, between the various circuit
courts of appeal and district courts but there also is evi-
dence of a divergence of opinion between the judges in
the various courts of appeals. If this is so it is inconceiv-
able that police officers, few of whom have any legal
expertise, possibly can know what to do in any given
circumstance. Where an object, which they know to be
valuable evidence in a case which they are investigating
comes into their view, must they place a guard on it until
they can procure a search warrant? In this day of ever.
increasing crime the hesitancy of a police officer to take
prompt action to seize and protect evidence could be
fatal to the protection to which the public is entitled.
Seldom would a prompt seizure of incriminating evi-
dence interfere with the Fourth Amendment Rights of
the innocent.
At the time the seizure in this case was made the of-
ficers were not aware of Coolidge which came later. If
properly schooled they were familiar with Cooper and
Carroll. Even Chambers was not available to them. They
did know that it was not a Preston case for the reason
that the evidence they sought was relevant to the crime
for which they had arrested respondent. Mr. Justice
Black, in his dissenting opinion, noted that Coolidge in-
31
troduced a new rule to enforce proper police conduct. At
page 488-489 he stated:
“The majority holds that evidence it views as im-
properly seized in violation of its ever changing
concept of the Fourth Amendment is inadmissible.
The majority treats the exclusionary rule as a judge-
made rule of evidence designed and utilized to en-
force the majority’s own notions of proper police
conduct. The Court today announces its new rules
of police procedure in the name of the Fourth
Amendment, then holds that evidence seized in
violation of the new “guidelines” is automatically
inadmissible at trial. The majority does not purport
to rely in the Fifth Amendment to exclude the evi-
dence in this case. Indeed, it could not. The majority
prefers instead to rely in “changing times” and the
Court’s role as it sees it, as the administrator in
charge of regulating the contacts of officials with
citizens. The majority states that in the absence of
a better means of regulation, it applies a court-
created rule of evidence.
I readily concede that there is much recent pre-
cedent for the majority’s present announcement of
yet another new set of police operating procedures.
By invoking this rulemaking power found not in
the words but somewhere in the “spirit” of the
Fourth Amendment, the Court has expanded that
Amendment beyond recognition. And each new
step is justified as merely a logical extension of the
step before.”
While the police officer did not have the benefit of
the Coolidge or Chambers decisions the courts below did.
Yet they ignored the holding of this Court in Chambers v
Maroney supra. As Mr. Justice Black stated at page 504:
“Moreover, under our decision last Term in Cham-
bers v Maroney, 399 US 42, 26 L Ed 2d 419, 90 S Ct
1975 (1970), the police were entitled not only to
seize petitioner’s car but also to search the car after
32
it had been taken to the police station. The police
had probable cause to believe that the car had been
used in the commission of the murder and that it
contained evidence of the crime. Under Carroll »v
United States, 267 US 132, 69 L Ed 543, 45 S Ct 280,
39 ALR 790 (1925), and Chambers v Maroney,
supra, such belief was sufficient justification for the
seizure and the search of petitioner’s automobile.”
In Coolidge Mr. Justice White, in a thoroughly docu-
mented dissenting opinion stated:
“For Fourth Amendment purposes, the difference
between a moving and movable vehicle is tenuous
at best. It is a metaphysical distinction without roots
in the commonsense standard of reasonableness
governing search and seizure cases. Distinguishing
the case before us from the Carroll-Chambers line
of cases further enmeshes Fourth Amendment law
in litigation breeding refinements having little rela-
tion to reality. I suggest that in the interest of coher-
ence and credibility we either overrule our prior
cases and treat automobiles precisely as we do
houses or apply those cases to readily movable as
well as moving vehicles and thus treat searches of
automobiles are we do the arrest of a person. By
either course we might bring some modicum of cer-
tainty to Fourth Amendment law and give the law
enforcement officers some slight guidance in how
they are to conduct themselves.” Coolidge v New
Hampshire, supra, at page 527.
In the interest of proper law enforcement and the
protection of the public it is urged that the latter alterna-
tive be adopted. It is believed that this Court has em-
barked upon such a step in this direction in the recent
case of Cady v Dombrowski, supra. Although the facts
in Cady are not‘the same as those herein the majority
of the court likened them to those in Harris v United
States, supra and Cooper v California, supra. In Harris
the petitioner had been arrested for robbery and his car
_
33
impounded as evidence. Here respondent was arrested
for murder and his car impounded as evidence. In Cooper
the petitioner was arrested for selling heroin and his
car impounded pending forfeiture proceedings. In either
Harris or Cooper the police could have gotten a search
warrant. In summing up the basis for holding the search
to be valid Mr. Justice Rehnquist stated:
“The Court’s previous recognition of the distinction
between motor vehicles and dwelling places leads
us to conclude that the type of caretaking “search”
conducted here of a vehicle that was neither in the
custody nor on the premises of its owner, and that
had been placed where it wassby virtue of lawful
police action, was not unreasonable solely because
a warrant had not been obtained. The Framers of
the Fourth Amendment have given us only the
general standard of “unreasonableness” as a guide
in determing whether searches and seizures meet
the standard of that Amendment in those cases
where a warrant is not required. Very little that
has been said in our previous decision, see Cooper,
supra, Harris, supra, Chambers, supra, and very
little that we might say here can usefully refine the
language of the Amendment itself in order to evolve
some detailed formula for judging cases such as this.
Where, as here, the trunk of an automobile, which
the officer reasonably believed to contain a gun, was
vulnerable to intrusion by vandals, we hold that the
search was not “unreasonable” within the meani
of the Fourth and Fourteenth Amendments.” Cady v
Dombrowski, 37 L Ed 2d at page 718.
Here the automobile was parked on a public parking
lot. It was not in respondent’s home or on his property.
It could be readily moved. Had the officers not impounded
it they would have run the risk of losing valuable evi-
dence believed by them to be such. Had the car been
moved and concealed pending their procuring a search
34
warrant they could have been found derelict in their
duty for letting the evidence disappear.
Any intrusion into respondent’s automobile was a very
limited one. Paint samples were taken and tire casts
were made. This appears to be a far less intrusion than
that of taking a sample of scrapings from the fingernalis
of a strangulation-murder suspect, over his protest and
without a warrant. In Cupp v Murphy, US 35
L Ed 2d 900 this Court held at page 906:
“On the facts of this case, considering the existence
of probable cause, the very limited intrusion under-
taken incident to the station house detention, and the
ready destructibility of the evidence, we cannot say
that this search violated the Fourth and Fourteenth
Amendments.”
Petitioner believes that there was no Fourth and Four-
teenth Amendment violation here.
35
CONCLUSION
Petitioner feels that the courts below have improp-
erly gauged the impact of Coolidge v New Hampshire,
supra, in the process of invalidating the seizure of re-
spondent’s automobile. While on the surface the case
seems to be factually in point with the instant situation,
and while the state has, in all the cases, attempted to
justify the search for a number of similar reasons, there
are significant factors which are not present in the
instant case, and which make the instant seizure allow-
able. In Coolidge an individual’s private property was
entered and his automobile taken therefrom. In Coolidge
his automoble was where there was no prospect that it
was about to be moved. Petitioner would not contest if
respondent’s car had been seized from his private prop-
erty and there were no real prospects of the car being
moved.
In the instant situation, the intrusion into respondent’s
control over his car was not dependent upon an invasion
of his physical premises. The car itself was seized from
a public parking lot, upon which police needed no specific
authorization to enter.
In Coolidge there was no significant prospect of the
car in question being moved while in the instant situa-
tion such was actually a certainty. While the authorities
in our case had information relating to the car, prior
to the seizure, there is no indication such information
amounted to probable cause to obtain a warrant. Nor
can it be said that on the morning of the interrogation
it was reasonable to procure a warrant considering the
mobile nature of the item to be seized and the uncer-
tainty of its location at any particular time. Petitioner
believes rather, that this decision in Cady v Dombrowski,
supra, should govern this case.
36
Accordingly, petitioner submits that the admission |
of the paint scrapings in question were admitted at re.
spondent’s trial without violating his rights under the
Fourth and Fourteenth Amendments to the Constitu.
tion. A finding to the contrary by the courts below and —
the granting of the Writ of Habeas Corpus were con —
clusions clearly erroneous.
Lastly petitioner iterates that the question of the
legality of the seizure of the paint samples was, after
a motion to suppress and voir dire hearing, determined
by the trial court. The question was raised by respondent
and rejected by two Ohio appellate courts and this Court.
Petitioner believes that the district court was in error in
relitigating the matter. As enunciated by Mr. Justice
Powell in his concurring opinion:
“Where there is no constitutional claim bearing on
innocence, the inquiry of the federal court on habeas
review of a state prisoner’s Fourth Amendment
claim should be confined solely to the question
whether the defendant was provided a fair op
portunity in the state courts to raise and have ad-
judicated the Fourth Amendment claim. Limiting
the scope of habeas review in this manner would
reduce the role of the federal courts in determining
the merits of constitutional claims with no relation
te a petitioner’s innocence and contribute to the
restoration of recently neglected values to their
proper place in our criminal justice system.”
Schneckloth v Bustamonte, —— US ____ 36 L Ed
24 854, 855 (1973).
Respectfully submitted,
Wru1aM J. BRowNn
Attorney General of the State of Ohio
Leo J. Conway
Nicuoias R. Curci
Assistant Attorneys General
JEFFREY L. MCCLELLAND
Attorney for Petitioner
———
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.