On petition for writ of certiorari to the Court of Appeals of
North Carolina.
The petition for writ of certiorari is denied.
Justice BRENNAN, dissenting.
Stone v. Powell,
428 U.S. 465 (1976), held
that "where the State has provided an opportunity for full and fair
litigation of a Fourth Amendment claim, a state prisoner may not be
granted federal habeas corpus relief on the ground that evidence
obtained in an unconstitutional search or seizure was introduced at
his trial." Id. , at 494 (footnote omitted). The effect of this
holding was to make this Court, on direct review, the only federal
forum available to the accused to monitor state-court compliance
with the Fourth Amendment. I dissented in that case and reminded by
Brethren that " institutional constraints totally preclude any
possibility that this Court can adequately oversee whether state
courts have properly applied federal law." Id., at 526. "[O]ur
certiorari jurisdiction is inadequate for containing state criminal
proceedings within constitutional bounds," because "federal review
by certiorari in this Court is a matter of grace, and it is grace
now seldom bestowed at the behest of a criminal defendant." Id., at
534. While the lower federal courts by way of habeas corpus are
better suited than are we on direct review to assure state-court
compliance with Fourth Amendment requirements, we are now duty
bound by Stone v. Powell to fulfill this monitoring function. The
denial of certiorari in this case demonstrates, however, that the
Court will not discharge that duty, because the petition presents a
substantial issue whether the North Carolina courts properly
applied the Fourth Amendment. I, therefore, dissent from the denial
of certiorari and would set this case for argument.
I
Petitioners were arrested for various crimes connected with the
possession, sale, and delivery of marihuana. Deputy
Page 451 U.S.
997 , 998
Sheriff Charlie Carawan, of Hyde County, N.C., first met
petitioner Lombardo two years prior to his arrest when Lombardo
purchased property about one-half mile from Carawan's home. App. to
Pet. for Cert. 13. Lombardo's property is "located adjacent to a
paved, rural road and adjacent to the main stream of Fortescue
Creek" which is connected to the Intracoastal Waterway. Id., at
13-14. Improvements were made on the property, including
construction of rock driveways and a metal gate.
Several events caused Carawan to become suspicious of activities
on the Lombardo property. First, "Carowan [sic] began to receive
reports from some of his acquaintances in the neighborhood that
they had begun to hear the sounds of heavy truck and boat engines
on and near the Lombardo property," sounds which were "unusual in
that area." Id., at 14. In addition, on December 21, 1978, Carawan
assisted a boat which was stuck in the mud bottom of Fortescue
Creek about one mile from the Lombardo property. Based on his
knowledge of the channels of the creek and of the prevailing winds
that day, Carawan disbelieved the story of the boat's skipper that
he had become disabled in the Pungo River and then drifted into the
creek where he ran aground. Id., at 14-16. Sometime thereafter,
Carawan motored his small boat near the Lombardo property to
observe activities thereon. While doing so he heard two rifle shots
which he believed came from the Lombardo property, one of which
apparently passed near him. Id., at 16.
These events led Carawan to suspect that the Lombardo property
was being used for marihuana smuggling. Id., at 16-17. Accordingly,
Carawan arranged for two state troopers to be stationed east and
west of the intersection of the rural paved road leading to the
Lombardo property and U. S. Highway 264. Id., at 17. On the night
of January 13, 1979, Carawan secluded himself 50 yards from the
Lombardo gate and observed the property until about midnight, when
a truck which appeared to be heavily loaded left the Lom-
Page 451 U.S.
997 , 999
bardo property. Id., at 17-18. Carawan followed the truck past
his own home, where he left his personal car and took his patrol
car. He also radioed the two state troopers who were stationed on
U. S. Highway 264. After following the truck, which was being
driven by petitioner Trapper, Carawan and the state troopers
eventually stopped it. Id., at 18. Upon reaching the truck, the two
state troopers and Carawan smelled marihuana. Id., at 19. Trapper
was then arrested and one of the troopers left for Swan Quarter to
obtain a warrant to search the truck. Ibid. The trooper returned at
1:40 a.m. on January 14, 1979, with a warrant. The search of the
truck revealed approximately 4,000 pounds of marihuana. Carawan
then obtained a warrant "to search the Lombardo double-wide house
trailer for marijuana," and "the Lombardo house and curtilage,
including a metal storage building was searched and . . . a large
quantity of baled and loose marijuana was found and seized from the
aforesaid metal building." Id., at 19-20.
Prior to trial, petitioners moved to suppress the evidence
seized during the two searches on Fourth Amendment grounds. Their
motion to suppress was denied. Petitioners then pleaded guilty to
various marihuana- related crimes and received suspended sentences.
They subsequently appealed the trial court's ruling on the
suppression motion to the North Carolina Court of Appeals, which
affirmed the trial judge. 48 N.C.App. 481,
269
S.E.2d 680 (1980). The court, taking judicial notice that "Hyde
County is on the coast of North Carolina in an area which is
regularly used by smugglers of marijuana," id., at 486, 269 S.E.2d,
at 683, held that Carawan, as an experienced law enforcement
officer, had "reasonable suspicion" that a crime was being
committed and thus was authorized to conduct a Terry stop of the
truck. Terry v. Ohio,
392 U.S. 1 (1968); see
Delaware v. Prouse,
440 U.S. 648, 99 S. Ct.
1391 (1979). The court further concluded that the stop was
reasonable in extent and time, and that when the officers smelled
marihuana from their outside inspection of
Page 451 U.S.
997 , 1000
the truck, they had probable cause to arrest Trapper and to
obtain a warrant to search the truck. The court also held that the
marihuana discovered in the truck created probable cause to obtain
a warrant to search the Lombardo premises.
The Supreme Court of North Carolina subsequently dismissed
petitioners' appeal, finding that it did not present a substantial
constitutional question. This petition followed.
II
Petitioners challenge the ruling of the North Carolina Court of
Appeals on two grounds: (1) that the stop of the truck was illegal
as not based on reasonable suspicion, resting on objective
articulable facts, that the driver was involved in criminal
activity; and (2) that the search of the Lombardo property was
unlawful since the warrant authorizing it was issued pursuant to an
affidavit which itself was premised on illegally seized evidence.
Petitioners' second argument depends entirely on the validity on
the first.
The first argument has substantial merit. The reasons advanced
by Carawan as justification for stopping the truck hardly amounted
in the aggregate to objective articulable facts leading to
reasonable suspicion that individuals associated with the Lombardo
property were engaged in criminal activity. See Brown v. Texas,
443 U.S.
47, 51, 2640 (1979). Boat and truck noises and the presence of
a locked metal gate across the Lombardo premises are fully
consistent with lawful activity. Similarly, the grounding of the
boat in Fortescue Creek occurred over one mile from the Lombardo
premises. Even if Carawan totally disbelieved the skipper's story
of how the boat came to be grounded, there is no basis for linking
the boat to the Lombardo premises. Moreover, the fact that Hyde
County, N. C., may be an area frequented by marihuana smugglers is
of no significance in the absence of articulable facts linking the
Lombardo premises to marihuana smuggling. See Ybarra v. Illinois,
444 U.S. 85
(1979);
Page 451 U.S.
997 , 1001
United States v. Mendenhall,
446 U.S.
544, 572, 1886, 64 L. Ed. 2d 497 (1980) (WHITE, J.,
dissenting).
The only arguably objective fact of criminal activity was the
firing of two rifle shots, which may have occurred as long as 24
days before the arrest. However, if Carawan believed that the shots
were directed at him, it is hard to understand why he took no
immediate action. Nor is there any indication how Carawan believed
those shots to be linked to criminal activity, particularly since
Lombardo had previously told Carawan that he bought the land for
hunting purposes. The record before us is simply too ambiguous on
the purpose, origin, and date of the shots to assess the incident
properly in terms of whether Carawan had a reasonable suspicion
that individuals on the Lombardo premises were engaged in criminal
activity on January 13, 1979. This is precisely the type of
ambiguity that a hearing before a federal habeas court is ideally
designed to resolve. But since Stone v. Powell effectively
eliminated federal habeas corpus review of Fourth Amendment claims,
this Court has no choice but to decide petitioners' nonfrivolous
constitutional claims presented in this case on the record as it
comes to us from the state courts.
If a federal habeas forum were available to petitioners, I would
not hesitate to vote to deny certiorari and leave to a habeas court
the burden of resolving any ambiguity in the key facts. Moreover,
the lower federal courts might well determine that the state courts
committed constitutional error, thereby obviating the need for
review in this Court. However, since Stone v. Powell saddles this
Court with the duty of providing the only federal forum for
decision of Fourth Amendment claims, we are obligated to decide
cases on direct review which we might otherwise deny. This is such
a case because there is a substantial question whether Carawan had
reasonable suspicion to stop Trapper's truck.
Justice STEWART also dissents from the denial of certiorari.
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