Brief for Respondent — Cardwell v. Lewis

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4 IN THE

SUPREME COURT OF THE UNITED STATES

~ OCTOBER TERM, 1973

No. 72-1603

HAROLD J. CARDWELL, Warden,

Ohio Penitentiary,

Petitioner,

ARTHUR BEN LEWIS,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE SIXTH CIRCUIT

RESPONDENT’S BRIEF

BRUCE A. CAMPBELL

Campbell, Schwarzwalder

& Sanford

40 West Gay Street

Columbus, Ohio 43215

Attorney for Respondent

Site di

Washington, 0.C. © CLE PUBLISHERS’ © LAW PRINTING CO. © (707) 393-0675

(i)

TABLE OF CONTENTS

Page

QUESTION PRESENTED ............0.05.0ceeeeee 3

STATEMENT OF THECASE ................00005. 2

SUMMARY OF ARGUMENT .............0.000005. 6

ARGUMENT:

The Courts Below Correctly Granted Respondent

Relief Upon His Petition for Writ of Habeas

Corpus Based Upon Violation of Respondent’s

Fourth Amendment Rights in State Court Crimi-

nal Proceedings in Which Evidence was Admitted

Relating to Paint Scrapings Taken From Defend-

ant’s Automobile Which Police Had Seized With-

out Warrant and Without Constitutionally Suf-

ficient Justification for the Warrantless Intrusion......... 8

A. The “Search Incident” Exception to the

Warrant Requirement Does Not Justify the

Seizure of Defendant’s Automobile in This

CRUD nko coe ca wnees te dd Wee hoe oon tthe s ee ue 9

B. There Were No “Exigent Circumstances” Here

Which Counterbalance the Constitutional

Preference for Search Warrants ...........-2-+46- 12

C. The “Plain View” Exception to the Warrant

Requirement Is Ina le on the Facts of

og rn err ee ene er eee 18

D. There Was No Consent To Search. ............... 21

E. Petitioner’s Contention’ That the Police

Action Was Excused as “a Scientific Examina-

tion of an Instrumentality of a Crime” Is Not

ee ee re ee 21

kk Po ee ee ee ee ee 25

(ii)

TABLE OF AUTHORITIES

Page

Cases: —_—

Agnello v. United States, 269 U.S. 20 (1926) ............. 12

Cady v. Dombrowski, 413 U.S. 433 (1973) ............. 23

Carroll v. United States, 267 U.S. 132 (1925). ............ 13

Chambers v. Maroney, 399 U.S.426 (1971) .......... 16, 18

Chapman v. United States, 365 U.S. 610 (1961) ............ 8

Chimel v. California, 395 U.S. 752 (1969) .......... 11, 12, 18

Coolidge v. New Hampshire, 403 U.S. 443 (1971) ...... passim

Cooper v. California, 386 U.S. 58 (1967) ............ 21, 23

Cupp v. Murphy, 412 U.S. 291 (1973) ............0000. 18

Irvine v. California, 347 U.S. 128 (1954) ...........0... 2

James v. Louisiana, 382 U.S. 36 (1966)................. 12

J.D. Case Co. v. Borak, 377 U.S. 426 (1964) ..........0.. 2

Jones v. United States, 357 U.S. 493 (1958) ............. 8

Katz v. United States, 389 U.S. 347 (1967) ........... 8, 20

LaVallee v. Rose, 410 U.S. 690 (1973) ............0000. 2

Local 1976, United Brotherhood of Carpenters v.

Labor Board, 357 U.S. 93(1957) 2... ee eee eee eee 2

Mapp v. Ohio, 367 U.S. 643,(1961) .. 22... 6.2 e eee ee eee 9

Rios v. United States, 364 U.S. 2531960) .............. 8

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) .......... 2

Shipley v. California, 395 U.S. 818 (1969)............... 12

Stoner v. California, 376 U.S. 483 (1964) ............. 8, 12

United States v. Bozada, 473 F2nd 389 (8th Cir.

| nn 16

United States v. Jeffers, 342 U.S. 48 (1951) ............. 8

United States v. Rabinowitz, 339 U.S. 56(1950) ...... 11,12

Vale v. Louisiana, 399 U.S. 30(1970) .............005- 12

Warden v. Haden, 387 U.S. 294 (1967) ............ 21, 22, 23

(iii)

Constitutional Provisions:

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1973

No. 72-1603

HAROLD J. CARDWELL, Warden,

Ohio Penitentiary,

Petitioner,

ARTHUR BEN LEWIS,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE SIXTH CIRCUIT

RESPONDENT’S BRIEF

QUESTION PRESENTED

Was the District Court, as affirmed by the United

States Court of Appeals, correct in concluding that

admission, in Respondent’s state criminal trial, of evi-

dence concerning paint samples taken from defendant’s

car and microscopically examined by police scientists was

in violation of Respondent’s Fourth Amendment right

where the automobile was seized and impounded by

police, without a warrant, from a commercial parking lot

some distance from the site of defendant’s arrest?!

‘In its Petition for Writ of Certiorari the State of Ohio

submitted to this Court a single question. (Petition, p. 2) However,

—e

STATEMENT OF THE CASE

Petitioner’s history of the case is fairly stated, but

Respondent believes that, while Petitioner’s recitation of

the facts is accurate, there are some additional points

which would contribute to a clearer understanding of the

case.

First, it might be helpful to the Court to have a short

cast of characters to assist in sorting-out the participants

in the events at issue:

Sgt. Wm. Lavery: the Deputy Sheriff for Delaware

County, Ohio (the location of the murder) in

charge of the investigation. (S3A)

Division of Criminal Activities: a branch of the

Office of the Attorney General of Ohio called in

in the brief on the merits, Petitioner has presented four questions.

(Petitioner’s Brief p.2) While the Merits-Brief questions are

primarily restatement and sub-classification of the Petition ques

tion, one matter is raised in Question 1 and argued in sections (1),

(2) and (3) and the conclusion of the Merits-Brief (Petitioner's

Brief pp. 15, 21, 24 and 36 respectively) which includes an issue

not embodied in the Petition for Writ of Certiorari or, for that

matter, in the appeal to the Sixth Circuit Court of Appeals.

In essence, Petitioner argues that review of the search and

seizure issue in federal court collateral proceedings is estopped by

the factual determinations and legal conclusions of the Ohio

courts, which Petitioner asserts to have been made upon adequate

grounds. In support is cited the case of La Vallee v. Rose, 410 US.

690 (1973) and a portion of the recent concurring opinion of Mr.

Justice Powell in Schneckloth v. Bustamonte, 412 U.S. 218 (1973).

Respondent believes the issue to be improperly raised by

Petitioner by virtue of Rule 40(d)(2) of this Court and the caselaw.

See Irvine v. California, 347 U.S. 218 at 129 (1954); J.D. Case Co.

v. Borak, 377 U.S. 426 (1964); Local 1976, United Brotherhood of

Carpenters v. Labor Board, 357 U.S. 93 (1957). Counsel had

originally intended to raise this matter by motion for the exclusion

of the issue from consideration but was advised by the Office of

the Clerk of this Court that the better practice would be to

footnote the contention in Respondent’s brief.

by the Delaware County Sheriff to assist in the

investigation of this case. (69-70A) .

Clyde Mann & Jim Heise: investigators for the

Division of Criminal Activities. (SA & 69A)

David Kessler: an attorney who was Chief of the

Division of Criminal Activities and who acted as a

special Prosecuting Attorney in the trial of this

David E. Tingley: the attorney initially called by

defendant on the day of his arrest. (11-13A)

Paul Scott: an attorney who was called into the case

by Tingley and who became trial counsel for

defendant. (44-45A)

Next, it may be helpful to elaborate upon the

chronology of some of the events leading up to the arrest

of defendant and seizure of his car. The body of the

murder victim, Radcliff, was found on Wednesday, July

19, 1967. (S57A) By the following Monday, July 24,

1967, the investigation of the case had begun to focus

defendant, asked for and was given a description of

defendant’s car, and had the Car pointed out to him by

defendant. (54A) .

Sgt. Lavery and Mr. Mann again talked with Lewis on

September 28, 1967 and “at this time the investigation

had focused in on [Lewis] as the prime suspect.”

(Opinion of District Court, Appendix to Pet. for Cert.,

p. 40)

On October 9, 1967 (77 days after the July 24th

interrogation of defendant at his Place of business) Mann

called defendant and requested that he appear the

following day at the Office of the Division of Criminal

Activities in Columbus, Ohio. (62A & 64A)

4 :

At about 8:00 a.m. on October 10th Sgt. Lavery _

obtained an arrest warrant for defendant from a Delaware ©

County Municipal Judge and came to Columbus (which is

in adjoining Franklin County) for the meeting with

defendant at 10:00 a.m. (55A)

Mr. Lewis complied with the request to appear and.

drove the car in question to the interrogation session,

parking it in a commercial parking lot a quarter to a half

block from the building where the Division of Criminal

Activities office was located. (63A) Sgt. Lavery knew

during the questioning of defendant, prior to his arrest,

that he had driven the car to the interrogation session.

(60-61 A)

Defendant was not actually informed of the warrant or

placed under arrest until late in the afternoon of October

10th (66A-67A), but he was held in close custody

throughout the day. (67A) He was allowed only two

communications with persons other than the investigators

during the course of the day; about noon, he was

permitted to call the trade school where he taught to let

them know he would not be able to meet with his class

that day (65A), and later he was permitted to call his

attorney, Mr. Tingley. (66A) The only time during the

day Lewis and his interrogators left the offices of the

Division of Criminal Activities was during a brief journey

in the afternoon to Lewis’s home where Lavery and

Heise, in the company and with the consent of the

defendant, searched his home for a shotgun. (55A &

66A)

Defendant was finally arrested sometime after 3:30

p.m. on October 10, 1967. (67A) Although they ulti-

mately obtained possession of the claim check and keys

to the car, the investigators themselves did not

actually have any contact with the car. (8A) It appears

that Mr. Mann or Mr. Heise simply called the Columbus

Police Department and asked that a wrecker be dis-

patched to impound the car. (8A) There is conflict in the

testimony of Sgt. Lavery who was, of course, the only

actual police official present. In a deposition prior to the

hearing on defendant’s pretrial motion to suppress, Sgt.

Lavery had testified that he had not had “anything to do

with the automobile part of this transaction [on October

10th].” (16A) Later, at the motion to suppress hearing,

Lavery said he had asked Mann to request the im-

poundment (15A), but Mann indicated he was not acting

under Lavery’s orders and that Heise had actually called

for the wrecker. (8A)

Sgt. Lavery testified in the evidentiary hearing in the

District Court that, at least by the time he obtained the

arrest warrant on the morning of October 10th, he

already knew the following facts specifically pertaining to

the car, in addition to other evidence linking the

defendant to the crime:

(1) A witness near the scene of the crime heard

shots and then saw a gold colored General

Motors vehicle leaving the area.

(2) Lewis owned a gold colored 1966 Pontiac.

(3) The victim’s car had been pushed over an

embankment by another car leaving paint on

the bumper of the victim’s car.

(4) The foreign paint was from a gold 1965 or 1966

G.M. car.

(5S) Lewis’s car was taken to a body shop for body

repairs shortly after the day of the killing.

(75-77A)

Despite this information, Lavery “saw no reason

for a search warrant,” (54A) and intended to seize the car

“one way or another.” (78A) This was confirmed at the

evidentiary hearing by Mann, who testified that he knew

“throughout the whole day” (October 10th) that they

wanted to seize the car. (73-74A) No search warrant was

ever sought or obtained. (54A)

SUMMARY OF ARGUMENT

Respondent believes the Petitioner’s organizational

concept to be inimical to a clear presentation of the

issues as Respondent sees them. For this reason, and

because of the close factual and logical affinity of this

case and Coolidge v. New Hampshire, 403 U.S. 443

(1971), the argument here will be structured primarily

along the lines of Part II of the Coolidge majority opinion.

The basic contention here, as in Coolidge, supra, is that

the warrantless seizure of defendant’s automobile was

indefensable in the context of the Fourth Amendment to

the United States Constitution. Circumvention of the

warrant requirement of that amendment in this case was

not reasonable, not necessary, and not excused by any

exception to the general mandate.

The seizure and search of the automobile from a

commercial parking lot was not incident to the arrest of

defendant in a downtown Columbus office building

inasmuch as it was carried out at a time and place remote

from that arrest. The seizure of car keys and parking lot

claim check from defendant’s person at the time of arrest

did not become the legal equivalent of seizing the car

itself.

Exigent circumstances, claimed by the State to have

necessitated the warrantless seizure of the car, are not

supported factually in the record. The police had a period

of nearly three months to act upon information they had

concerning the automobile, but they did not present it to

a magistrate. Defendant knew during this period that he

and his car were the subject of police interest but took no

steps to remove the car from the jurisdiction. The police

had all information bearing upon probable cause to seize

the automobile either on or before the time of defend-

ant’s arrest but simply neglected to secure a warrant. In

any event, the possibility of the removal of the evidence

after the defendant was in police custody but before a

warrant could be obtained could have been obviated by

the simple expedient of surveillance.

There was no “plain view” issue here inasmuch as

neither the arresting officer nor any other police officer

ever saw the car on the day of it’s seizure. It was simply

impounded by a wrecker dispatched by a local police

agency at the request of the investigating officer.

This case is not significantly distinguishable from

Coolidge v. New Hampshire, supra. Petitioner’s artificial

distinction between public and private property is

untenable. The Coolidge decision, in the respects in

which it was applied to this case by the U.S. District

Court and the Sixth Court of Appeals, is not at variance

with the law existing at the time of the seizure in

question.

A consent to search was not clearly established in the

record and cannot, therefor, form the justification for

warrantless search. Respondent denies, and is supported

in this denial by his counsel at the time, that consent in

any form was given for the seizure of the car but

contends that, even in the light of the police version of

the facts surrounding the turning over of the keys and

claim check, the District Court properly found that there

was insufficient indication of an informed consent to the

seizure.

Finally, the Petitioner’s argument that the search here

somehow escapes Fourth Amendment scrutiny or, at

least, satisfies it because it was merely a “scientific

examination of an instrumentality of a crime” is not

supported by the facts of the case or the prior caselaw

suggested by the Petitioner.

—~ =~,

ARGUMENT

THE COURTS BELOW CORRECTLY GRANTED

RESPONDENT RELIEF UPON HIS PETITION FOR

WRIT OF HABEAS CORPUS BASED UPON VIO-

LATION OF RESPONDENT’S FOURTH AMEND-

MENT RIGHTS IN STATE COURT CRIMINAL

PROCEEDINGS IN WHICH EVIDENCE WAS ~

ADMITTED RELATING TO PAINT SCRAPINGS

TAKEN FROM DEFENDANT’S AUTOMOBILE

WHICH POLICE HAD SEIZED WITHOUT WAR-

RANT AND WITHOUT CONSTITUTIONALLY

SUFFICIENT JUSTIFICATION FOR THE WAR-

RANTLESS INTRUSION.

While it is perhaps unnecessary, in this forum, to

re-emphasize at any length the first principles of Fourth

Amendment interpretation, it is well to begin the

discussion with the admonition of Mr. Justice Stewart in

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

firmed in Coolidge v. New Hampshire, 403 U.S. 433,

454-5 (1971):

“... Over and again this Court has emphasized

that the mandate of the [Fourth] Amendment

requires adherence to judicial processes,” United

States v. Jeffers, 342 U.S. 48, 51 [1951], and that

searches conducted outside the judicial process,

without prior approval by judge or magistrate, are

per se unreasonable under the Fourth Amend-

ment—subject only to a few specifically established

and well-defined exceptions.

Katz, supra, at p. 357; citing: Jones v. United

States, 357 U.S. 493, 497-499 (1958); Rios v.

United States, 364 U.S. 253, 261 (1960); Chap-

man v, United States, 365 U.S. 610, 613-615

(1961); Stoner v. California, 376 U.S. 483,

486-487 (1964).

The warrantless seizure of this defendant’s automobile

under the circumstances particular to this case was not

brought within the constitutional pale of reasonableness

by any of the established exceptions to the warrant

mandate, and the evidentiary offspring of that seizure

was improperly countenanced in the trial court to the

detriment, not only of the defendant, but to the integrity

of the. judicial process as well. The Fourth Amendment,

as applied to the actions of states through the precepts of

the Fourteenth Amendment, requires, therefor, the result

reached in District Court below and affirmed in the

United States Court of Appeals. Mapp v. Ohio, 367 U.S.

643 (1961)

A. The “Search Indicent” Exception to the War-

rant Requirement Does Not Justify the Seizure

of Defendant’s Automobile in This Case.

The State of Ohio here argues, as did the State of New

Hampshire in Coolidge v, New Hampshire, 403 U.S. 443

(1971), that the search in question is legitimized as an

event incident to a valid arrest. Its argument is that, since

the officials conducting the interrogation of Respondent

on October 10, 1967 in the office of the Attorney

General’s Division of Criminal Activities gained control of

the keys and claim check for his car at the time they

finally executed the arrest warrant upon the Defendant,

this act of taking constituted the real seizure. They then

suggest that, since the taking of the keys and claim check,

albeit not the car itself, was contemporaneous in time

and place with the arrest, the entire chain of events which

followed—the impounding of the car—the taking from the

car of paint layer samples for microscopic exam-

ination—was justified as “incident” to the arrest. The

Proposition is based on the premise that possession of the

claim check and keys was equivalent to “complete

control and dominion over the car’? (a contention which

? Respondent’s Brief p. 22.

Petitioner subsequently withdraws when addressing the

question of exigency of circumstances requiring war-

rantless seizure) and that seizure of these tools of access

was, therefore, indistinguishable in a Constitutional sense

from seizure of the car itself. Respondent submits that

this argument is factually incorrect and that, if applied

generally, Petitioner’s reasoning would license wholesale

disregard of Fourth Amendment values.

The physical objects, the keys and claim check, seized

from defendant at the time of his arrest, even if that

arrest is assumed to be valid,*® did not invest the police

with the indicia of possession so completely that, by

surrendering these objects, defendant surrendered the car.

Both objects are merely a means of access—and, for that

matter, not an essential or exclusive means—to a physical

object that has an integrity quite aside from them. The

keys, like the electrical outlet plug of a tape recorder, for

example, may to some extent control or limit the

operation of mechanical objects but do not theteby

consume the identity of the object itself. The parking lot

claim check is in the nature of a written document

evidencing the short-term lease of physical space to an

individual wishing to store certain of his personal

property thereon, but it does not, in any sense, invest its

possessor with ownership or right of control of the object

stored that he did not have without it. In short, the keys

and claim check, while symbols of, and mechanical aids

to control of the automobile, did not merge with it and

become inseparable from it in such a way that seizure of

one became seizure of the other. The Fourth Amendment

> Respondent, it should be noted, has never conceded the

validity of his arrest. In the State courts on direct appeal and in the

District Court in his original Petition for Habeas Corpus he raised

issues concerning the validity of the arrest. See Issues I and II of

Petition for Habeas Corpus (Appendix pp. 30A-31A.) The District

Court agreed that the arrest warrant was defective but concluded

the officer, nevertheless, had probable cause to arrest. (Appendix

to Pet. for Cert. p. 51 Note 12)

is not so crude an instrument as to be unable to make

such distinctions.

Petitioner’s argument, carried to its logical conclusion,

would suggest that if a person was lawfully arrested and a

proper search of his person was made in which were

found keys to his home, his office, a train station locker,

a safety deposit box, his vehicles and perhaps a key to a

neighbor’s or relative’s home, all of these locations

represented by the keys would be the legitimate subject

of a warrantless search “‘incident”’ to the arrest at least to

the extent that the searches were related to the reason for

which the defendant was arrested. The implications are

manifest; in order to enjoy Fourth Amendment pro-

tection for his home or other enclaves of privacy the

citizen would have to avoid personal possession of any

means of entry or use of these entities least he be held to

have “constructively possessed” his home and his car in

his pants-pocket.

The more important question under the “search

incident” exception is whether the police here seized the

car itself as an incident of defendant’s arrest. Stated

specifically, could the police, after questioning and

eventually arresting defendant at an office building and

upon learning of the presence of defendant’s automobile

in which they were interested at a nearby commercial

parking lot, justifiably, as an incident of the defendant’s

arrest, call another police agency and ask that agency to

go to the parking lot and tow the car to an impoundment

area for later search?

In Coolidge v. New Hampshire, 403 U.S. 443 (1971),

Justice Stewart reviewed the law of search incident as it

applied to cases arising prior to the decision of Chimel v.

California, 395 U.S. 752 (1969):

The leading case in the area before Chimel was

United States v. Rabinu-vitz, 339 U.S. 56 [1950]

which was taken to stand “for the proposition, inter

alia, that a warrantless search ‘incident to a lawful

—

arrest’ may generally extend to the area that is

considered to be in the ‘possession’ or under the

‘control’ of the person arrested.’’ Chimel, supra, at

760...

...{T]his Court has repeatedly held that, even

under Rabinowitz, [a] search may be incident to an

arrest ‘ “only if it is substantially contemporaneous

with the arrest and is confined to the immediate

vicinity of the arrest... .”” ”’ Vale v. Louisiana, 399

U.S. 30, 33 [1970] quoting from Shipley vy.

California, 395 U.S. 818, 819 [1969] quoting from

Stoner v. California, 376 U.S. 483, 486 [1964].

(Emphasis in Shipley.) Cf. Agnello v. United States,

269 U.S., at 30-31 [1926] ; James v. Louisiana, 382

U.S. 36 [1966]

Coolidge, supra, at p. 456

Here, the spatial relationship between the site of arrest

and the location of the seized automobile was, if

anything, more remote than it was in Coolidge, and none

of the special factors which necessitate warrantless

intrusion as an incident of a lawful arrest were present.

The search cannot, therefor, find its justification in

incidence to the arrest.

B. There Were No “Exigent Circumstances” Here

Which Counterbalance the Constitutional Pref-

erence for Search Warrants.

In considering the arguments raised by Petitioner

within the area of the so-called “exigent circumstances”

exception to the warrant requirement, as that exception

relates to automobiles, it might be well to start with

Justice Stewart’s reminder that:

The word “automobile” is not a talisman in

whose presence the Fourth Amendment fades away

and disappears.

Coolidge, supra, at p. 461.

As this Court in the Coolidge case and the District

Court and Court of Appeals in this case demonstrated at

length, in order for a warrantless search to be justified

under the line of cases following Carroll v. United States,

267 U.S. 132 (1925), in which there were found to be

“exigent circumstances”, two conditions must be shown

by the State to be present. First, it must be shown that a

warrant could not have been obtained in advance.

Second, it must be clear that there was a real, not merely

a problematical danger that the evidence would be

removed or destroyed if time were taken to obtain a

warrant. Coolidge, supra, at pp. 458-460. In order to

prevail on this issue Petitioner .must demonstrate that

both of these factors were present. Respondent maintains

that the courts below correctly concluded that neither

factor was present in the facts.

Judge Kinneary of the District Court in his opinion,

after a detailed categorization of the pertinent auto-

mobile search cases (Appendix to Pet. for Cert.

pp. 57-59), summarized the facts pertaining to this issue:

... The first condition was not met because the

reasons establishing probable cause to search the

automobile were known to officers days, if not

weeks, prior to its seizure and subsequent search.

The second condition was not met because the

officers knew the whereabouts of the car prior to its

search and seizure. They could have obtained a

warrant at any time, including the morning of

October 10, 1967 or any time following petitioner’s

arrest. There was no danger a confederate would

remove the vehicle and destroy evidence. The

murder occurred July 19, 1967. Petitioner was first

interviewed July 24, 1967. He was again interviewed

on September 28, 1967. He knew that he was a

prime suspect when he was requested to meet with

investigators on October 10, 1967. Petitioner had

already been afforded ample opportunity to destroy

= |

the evidence. If there were any further danger that a

confederate would destroy evidence following

petitioner’s arrest, the State had ample opportunity

to obtain a search warrant and eliminate the risk.

(Appendix of Pet. for Cert. p. 60)

Contrary to the unsupported assertions of Petitioner,

there is no indication in the record whatever that the

police did not have general knowledge of the where-

abouts of the defendant, his residence, his business

locations, and his automobile during the nearly three

months, which intervened between the murder and

defendant’s arrest. Despite ample opportunity to develop,

at the evidentiary hearing in the District Court, any facts

which might support this theory, the State has offered no

testimony to show a lack of knowledge of the location of

the car at any time except the early portion of

October 10, 1967. Even with respect to that period, there

is no indication that the officer’s lack of knowledge

about the precise location of the car that day was the

product of anything other than their own failure to ask

Lewis where it was? When asked, he told them where it

was.

Petitioner has manufactured a ghost in support of its

contention that exigencies of circumstance created a

need for warrantless seizure of the car on October 10,

1967. The State constantly alludes to the possibility that

some unnamed confederate, notified in some unspecified

way by the defendant as he was held in police custody,

would come and, without keys or claim check, remove

the car before a warrant could be secured.

There is no indication whatever that Respondent had

attempted to hide or dispose of his car, despite the fact

that he had known for some eleven weeks that the police

were interested in it. That Respondent chose to drive this

particular vehicle to the October 10th interrogating

session to which he had been “invited” and at which he

voluntarily appeared certainly bespeaks no plan on his

part to secrete the car in such a way as to frustrate any

attempt to secure a warrant for its seizure; on the

contrary, it seems to justify the opposite conclusion. The

fact that the police had called the day before and

“invited” the defendant to come downtown the next day

to “talk” to them about the murder they were inves-

tigating would seem to indicate very little real concern on

their part that the defendant would abscond or otherwise

frustrate their investigation.

The fact that Respondent, at the time of his arrest,

attempted to turn the car over to his attorney for

delivery to his home does not in any sense equate this

case with those in which a danger existed that a

confederate in crime would destroy evidence if seizure

were not accomplished immediately. No testimony has

ever been tendered that this crime or its aftermath

involved confederates, nor has it ever been suggested that

the investigating officers believed as much in October of

1967. Surely, Petitioner does not suggest that Re-

spondent’s trial attorney, Mr. Scott, an officer of the

court, would participate in the destruction of evidence.

Surely, there is a difference between moving a car for the

convenience of a client’s family and spiriting it out of the

jurisdiction. In any event, Mr. Scott did, under protest,

turn over the keys and claim check to the police prior to

the seizure of the automobile, thus removing even this

theoretical exigency if we accept the Petitioner’s prior

argument that possession of these items effectively

immobilized the vehicle.

The question then arises as to whether the officers,

having forgone prior opportunity for more than eleven

weeks to secure and execute a search warrant, can, in

effect, create “exigent circumstances” simply by saying

that at the particular instant they chose to seize the car

they did not have sufficient knowledge of its location at

that moment to enable them to secure a warrant, despite

a general availability of the car at known locations and

knowledge of facts pertaining to probable cause long

before that time. Given this reasoning, any warrantless

search of a movable object could be justified by such a

conveniently manufactured exigency.

But from a factual standpoint even this “exigency” did

not exist. It is not disputed that during the course of the

questioning on Tuesday, October 10th between the hours

of 10:00 A.M. and 5:30 P.M. the investigating officials

became aware of the exact location of the car and

became possessed of the means of access to it, the keys

and claim check. Respondent was, by this time, under

arrest in the office of the Attorney General of Ohio,

Division of Criminal Activities, and could not, in any

event, have communicated with the mythical “confed-

erate” postulated by the State of Ohio. Certainly, at this

point in time, the police were in a position to seek a

search warrant from a magistrate within Franklin County,

the Municipal Court of which is located only a few blocks

from the offices where the interrogation was being

conducted.

If it is assumed, arguendo, that some exigency did

exist, and that there was some real possibility of the

disappearance of the car, despite the control by the

police of the defendant, the keys, and the claim check, it

is pertinent to discuss another alternative available to the

police in the particular circumstances of this case—the

surveillance of the car in the parking lot. Petitioner has

argued, claiming support from Chambers v. Maroney, 399

U.S. 42 (1971) that this would be indistinguishable

from outright seizure and that this is not a permissible

“That the lower Courts are not totally clear upon the impact

upon Chambers, supra, of Coolidge, supra, with respect to this

issue is perhaps best demonstrated by the divergence in the

majority and dissenting opinions in U.S. v. Bozada, 473 F.2d 389

(8th Cir. 1973).

wn 17

alternative under the Fourth Amendment. Respondent

suggests that the surveillance question, if not mooted, as

Respondent believes it to be, by the lack of any real

exigent circumstances here, is deserving of some dis-

cussion.

Police surveillance of the car in this case until a

warrant could be applied for would not, under the

limited circumstances of this case, have constituted

“seizure” any more than surveillance of a suspect by the

police constitutes “arrest” of that individual. It is within

the legitimate purview of police authority to observe and

investigate in order to obtain factual details for presen-

tation to judicial officers responsible for making probable

cause determinations. Observation alone here would have

been sufficient to preserve the opportunity to secure and

execute a warrant. |

In what real way would the defendant’s rights have

been compromised? The defendant’s privacy interest in

the object would not have been violated. His ability to

use the car was already foreclosed by his arrest. It would

have, in this case, taken only a brief period of time to

present the warrant arguments to a magistrate. If the

warrant had been issued, defendant—and the public—

would have had the benefit of a judicial determination of

probable cause. If the warrant had not: been issued, for

failure of the alleged probable cause, an improper search

would have thereby been prevented. In either event, the

costs in terms of law enforcement resources would have

been minimal, and the savings in terms of subsequent

judicial labor would have been substantial.

Although the Respondent maintains, as did the District

Court, that the initial seizure of the car from the

downtown parking lot was the basic and incurable

violation of Respondent’s Fourth Amendment right and

that all the events which flowed from it were necessarily

tainted by it, the warrantless searches of and seizures

from the car two days after it was taken to the Columbus

Police Impounding Lot most certainly cannot be justified

in terms of any “exigency”. At that point the police had

absolute control of the vehicle and unlimited opportunity

to secure a warrant, yet they simply did not trouble

themselves to do so.

This case is not in any way analogous to the situation

with which this Court dealt in Chambers v. Maroney, 399

U.S. 42 (1971), where the defendant was arrested in his

car and the police, having proper authority to search the

car incident to the arrest, merely moved it to the police

station before doing so; here there was no foundation for a

warrantless search at the point where the car was found

and, therefor, no justification for a later search at the

impoundment lot. Nor is the case comparable with the

situation in Cupp v. Murphy, 412 U.S. 291 (1973), in

which this Court approved, under Chimel v. California,

395 U.S. 752 (1969), the admission of evidence about

scrapings from the defendant’s fingernails given the true

exigency of that situation and the extreme parishability

of the evidence there in question.

C. The “Plain View” Exception to the Warrant

Requirement Is Inapplicable on the Facts of

the Case.

Petitioner also argues that the seized automobile

was an instrumentality of the crime, found in plain view

and seizable as such. This Court in Coolidge placed the

so-called “plain view” exception in perspective:

What the “plain view” cases have in common is

that the police officer in each of them had a prior

justification for an intrusion in the course of which

he came inadvertantly across a piece of evidence

incriminating the accused. The doctrine serves to

supplement the prior justification—whether it be a

warrant for another object, hot pursuit, search

incident to lawful arrest, or some other legitimate

reason for being present unconnected with a search

directed against the accused—and permits the

warrantless seizure. Of course, the extension of the’

original justification is legitimate only where it is

immediately apparent to the police that they have

evidence before them; the “plain view” doctrine

may not be used to extend a general exploratory

search from one object to another until something

incriminating at last emerges . . .

+ * * * *

The limits on the doctrine are implicit in the

statement of its rationale. The first of these is that

plain view alone is never enough to justify the

warrantless seizure of evidence . . .

* ” + *

- The second limitation is that the discovery of

evidence in plain view must be inadvertant .. . 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 dif-

ferent. 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 un-

reasonable” in the absence of “exigent circum-

stances.”

Coolidge, supra, at pp. 466-471

As in Coolidge, the facts here simply do not support a

“plain view” exception to the warrant requirement. The

object involved was, as in Coolidge, an automobile, not

“contraband or stolen goods or objects dangerous in

themselves.” The police had the information bearing

upon probable cause to secure and execute a warrant for

weeks. The police here also had a prior intention to seize

the automobile, and their discovery of it was in no sense

inadvertent. Moreover, the investigating officer here never

actually saw the vehicle at all on the day of its seizure; he

merely had someone call for a wrecker to impound the

vehicle. As the Sixth Circuit Court of Appeals suggests in

its opinion:

... Stated in its simplest form, there can be no

“plain view” where there is no “view” at all. To

attach such an extension to the plain view exception

to the warrant requirement would undercut the very

foundations of fourth amendment protections and

consequently such a proposition is untenable .. .

(Appendix to Pet. for Cert. p. 32)

Petitioner argues the inapplicability of the entire

Coolidge doctrine to the instant case on a theory that the

“viewing” and the seizure of the automobile here took

place on “public” rather than “private” property.

Respondent submits, however, that Petitioner is incorrect

both as to its factual conclusion and as to its legal

interpretation of the Coolidge decision.

From a factual standpoint, it is clear that the original

seizure of the automobile took place upon an attended

commercial parking lot on which Respondent had, in

effect, rented space, locked his car and taken the keys

with him. The very purpose of such a parking lot is to

provide a kind of secure sanctuary for a person’s chattle

property away from the vulnerability of truly public

areas. The situation is analogous to that in Katz v. United

States, 389 U.S. 347, 885 S.Ct. 507, 19 L.Ed. 2d 576

(1967), where this Court held that conversation from a

“public” telephone booth was subject to Fourth

Amendment protection:

“‘What a person knowingly exposes to the public,

even in his own home or office, is not a subject of

Fourth Amendment protection... But what he

seeks to preserve as private even in an area accessible

to the public may be constitutionally protected . . .”

Katz, supra, at pp. 351-2

The Coolidge doctrine simply does not admit to the

artificial “‘public” vs. “private” legal interpretation as-

cribed to it by the Petitioner.

D. There Was No Consent To Search.

At least in the way it has presented the facts of this

case, if not directly in argument, the State of Ohio

implies that defendant consented to the seizure and

subsequent search of his automobile by making,

according to police testimony, a request that his car be

taken by the police for “safekeeping.” It is sufficient here

to note that the District Court took great pains to review

all of the testimony pertaining to the claim of consent,

and that it concluded from this review that, even if the

testimony by defendant and his attorney disputing the

alleged request were to be disregarded and only the police

testimony considered, there still was a failure by the

State ot demonstrate the clear and unequivocal consent

necessary to justify a warrantless search. (Appendix to

Pet. for Cert. pp. 52-55) The Court of Appeals found no

need to re-examine this comprehensive decussion.

(Appendix to Pet. for Cert. p. 30)

E. Petitioner’s Contention That the Police Action

Was Excused as “A Scientific Examination of

an Instrumentality of a Crime” Is Not Valid.

Laced throughout Petitioner’s other arguments is an

elusive concept which seems to have been drawn some-

where from the recesses of Warden v. Haden, 387 U.S.

294 (1967) and Cooper v. California, 386 U.S. 58 (1967),

in which Petitioner seeks to vindicate the taking of the

automobile and the microscopic analysis of it’s sub-

surface paint layers as merely a “scientific examination of

an instrumentality of a crime” related to the “reason for

which the car was seized and the defendant arrested.” The

argument seems to have several branches. In some

——ay

instances the State appears to be saying that, because this

car was, in their view, an “instrumentality” of the crime

and, because all that was done to it was to subject it, or a

part of it, to scientific analysis, the Fourth Amendment

does not really come into play at all, and there is not

actually a seizure or search in any Constitutional sense. In

other instances, however, the Petitioner takes another

tact and suggests, without precisely saying so, that there

was a search and seizure of Fourth Amendment signifi-

cance but that it was, or ought to be, validated by a new

exception to the warrant requirement revolving around

the notion of “instrumentality.” Respondent would

suggest that these notions are first, inapplicable to the

facts of the case, second, based upon inappropriate

extrapolation from the caselaw cited, and third, sug-

gestive of a procedure which, if sanctioned and applied

generally, would severely damage Fourth Amendment

values.

In the first place, it is at least arguable as to whether

the car can accurately be classified as an “instrumentality

of the crime” in this case. It was not the police theory

here that the car they sought was the murder weapon

itself; the killing had been done with a shotgun. The role

of the car, according to police, was merely that it was

used after the murder to push the victim’s car over an

embankment so that it could not be seen and then to

leave the scene of the crime. In that sense, it is not the

instrument of commission or the object of the crime

itself but an evidentiary item.

But the distinction between an “instrumentality” and

other items relating to a crime is of no importance in

view of the holding of this Court in Warden v. Haden,

387 U.S. 294 (1967):

Nothing in the language of the Fourth Amend-

ment supports the distinction between “mere evi-

dence” and instrumefitalities, fruits of crime, or

contraband. On its face, the provision assures the

“right of people to be secure in their person,

houses, papers, and effects... .” without regard to

the use to which any of these things are applied... -

Warden v. Haden, supra, at p. 301

Warden v. Haden, as Respondent understands it,

simply said that “mere evidence” can be seized in the

same way and under the same restrictions as “instru-

mentalities.” Petitioner seeks to invert that holding by

asking the Court to re-establish the distinction between

the types of seizable objects and to place “instrumen-

talities” in a category beyond the reach of Fourth

Amendment protection. The suggestion ignores the

underlying basis of the Warden decision which was that

the Fourth Amendment was not directed to the issue of

property but, rather, to the right of privacy:

..- [NJ othing in the nature of property seized as

evidence renders it more private than property

seized, for example, as an instrumentality ; quite the

contrary may be true...

Warden, supra, at p. 302

Petitioner’s reliance on Cooper v. California, 386 U.S.

58 (1967) is similarly misplaced. Involved in Cooper,

supra, was the search of a glove compartment of an

automobile that had been impounded upon the defend-

ant’s arrest pursuant to a California statute authorizing

impoundment pending. forfeiture proceedings where a

vehicle was involved in the transportation of narcotics.

The impoundment here was based upon no such statu-

tory authority. Similarly, the Court’s recent decision in

Cady v. Dombrowski, 413 U.S. 433 (1973) does not

support Petitioner’s case because there, as in Cooper,

supra, the police had “exercised custody” over the

vehicle on the highway and, in connection with that

custody, had merely searched the car for a police service

revolver they reasonably believed to be in the car and

——ay

which they feared might be stolen and in that search

unexpectedly found incriminating evidence. Though

these cases refer to the, relationship between the reason

for the searches and the reason for which the automobiles

were being held, they are both founded upon situations,

unlike the instant case, in which the police already had

legitimate custody, of one sort or another, nef the vehicle

in question.

Finally, the words “scientific examination” do not, in

and of themselves, impart some magic which counteracts

Constitutional necessities as the Petitioner seems to

imply. A search is not made legitimate in Fourth

Amendment terms simply because it is done through a

microscope rather than with the naked eye. In order to

“scientifically examine” the layers of paint below the

visible surface of the car here, it was necessary for the

police to physically remove a portion of the paint from

the car, and that removal, no matter how minute the

sample, clearly constituted a seizure. See footnote 10 of

the District Court’s Opinion. (Appendix to Pet. for Cert.

p. 50)

CONCLUSION

Petitioner has suggested to the Court that the tenor of

the time bids a relaxation of strictures upon police

conduct and has predicted that the loosening of the

warrant requirements in cases such as this will “*[s] el-

dom ... interfere with the Fourth Amendment Rights of

the innocent.” (Petitioner’s Brief, p. 30)

The Bill of Rights, written in times no less tumultous

than our own, is not a quantative standard under which

the security of the citizen is to be respected insofaras it

may be practical, given temporal necessities. Rather, it

provides an absolute standard forbiding in each instance

and in each age the encroachment of the State upon

individual perogative except within the narrow limits

which it specifies.

The State of Ohio here asks this Court to approve the

warrantless search and seizure of an automobile in

Circumstances which in no way necessitated the bypassing

of warrant procedures. In the submission of Respondent,

the Fourth Amendment does not and should not be held

to encourage activity of the type here in question.

The decision of the United States District Court,

affirmed by the United States Court of Appeals, directed

that the writ of habeas corpus issue and that Arthur Ben

Lewis, Jr. be released from custody unless the State of

Ohio initiates action for a new trial within a stated

period. Those decisions should be affirmed by this Court.

Respectfully submitted,