Petitioners Brief — Combs v. United States

‘ : & ! Supreme Court US.

dalla aoe FEB 22 1972

E ROBERT SEAVER, CLER

In The. ||}

SUPREME COURT OF THE UNITED STATES

October Term, 1971

No. 71-517. -

ELISHA COMBS, :

. Petitioner, °.

- UNITED STATES.

| On Writ of Certiorari to the

United States Court of. Appeals for the Sixth Circuit

PETITIONER’S BRIEF

WILLIAM F. HOPKINS and |

JAMES N. PERRY

414 Walnut Street

(Cincinnati, Ohio 45202

‘Attorneys for Petitioner

_ Petition for Certiorari Filed October 9, 1971

' Certiorari Granted January 10, 1972

INDEX

REFERENCE.TO OPINIONS BY THECOURT.. 1

GROUNDS FOR JURISDICTION ............... 1

QUESTION PRESENTED FOR REVIEW ..... ree,

STATEMENT OF THE CASE..............+5- ee

ARGUMENT —

@ The Sixth Circuit Court of Appeals erred when

it denied standing to the Petitioner who had been

indicted for a crime having. possession as an €s-

, i re i ota tebe Rea h hws REE Losi

CONCLUSION......... sestheawiane Pub eestaene gS MET

* * LIST OF CASES CITED

Aguilar v. Texas, 378 U.S. 108 .............+++-- 4°

Glisson v. United States, 406 Fed. (2nd) 423, 427.

(Fifth Circuit, 196B). .. 2.2.2... eee ce eee eee 5

Jones v. United States, 362 U.S°257 (1960) .....2, 3, 4, 5

Nirg v.: United States, 388 Fed: (2nd) 536, 535

(First Circuit, 1968) ............:2eeeeee eens, 5

Simmons V. U. S., 390 U.S. 377, 390 -(1968) ....4, 5, 6

United States v. Allsenberrie, 424 Fed. (2nd) 1209

‘(Seventh Circuit, 1970) -.........---2++--2+4- 4-5 .

United States v. Cobb, 432 Fed. (2nd) 7 a6, "(Fourth

Circuit, 1970) 2.2.2.0 ete cece ecec ee ccees x

United States v. Combs, 446 Fed. (2nd) Bie eases l

United States v. Konigsberg, 336 Fed. (2nd) 844... 4

U. S. v. Price, 447 Fed. (2nd) 23 (July 8th, 1971) .. 4

is | SFATUTES | :

18 United States Code, § 659 =........ shin egies ee _

28 United States Code, § 1254 (1) ......---..---- 2

a ee oe eae

a ‘The

» SUPREME COURT OF THE UNIT ED STATES.

No. 71-517,

ELISHA COMBS, .

: . Petitioner,

vz !

UNITED STATES.

“ate On Writ of Cextiorari: to the -

- United States ipent of Spee for the Sixth Circuit

_ PETITIONER'S BRIEF

_ REFERENCE TO OPINIONS BY

THE COURT BELOW °

The decision of the Sixth Circuit Court of Appeals is

officially. reported as United States v. Combs, 446. Fed.

(2nd) 515. This opinion is reproduced in full beginriing

at Page 5 of.the “Petition for Writ of Certiorari” filed in,

this Court on October 9,'1971. | :

The order denying a “Petition for Rehearing” in the

Sixth Circuit Court of Appeals appears at Page 9 of the

_ “Petition for Writ of Certiorari” filed in this Court, on

October 9, 1971.

‘GROUNDS F OR JURISDICTION

‘The “Petition for Rehearing” was denied by the Sixth

Circuit Court of Appeals by an order entered on Septem-

ber 15th, 1971. The statutory “ee for this appeal

is 28 United States Lode, § 1254 (1). On October 9th,

. 1971, the “Petition for Writ of Certiorari” was docketed in

the United States = Court and assigned No. 7 1-

517.. 3 ;

' On January 9th, 1972, an saline granting the “Petition,

fot Writ of Certiorari” ‘was entered by this Court.

~ QUESTION PRESENTED FOR REVIEW

Did ‘the Sixth Circuit Court of Appeals follow’ Jones |

v. United States, 362 US. 257 (1960), when it denied

_ standing to challenge a search to the Petitioner when the ..

Petitioner was charged with receivifg, possessing: and con-

cealing contraband i in a Federal Indictment? |

: STATEMENT OF THE CASE a

:- The’ Petitioner was indicted by a Federal Grand fury

ona charge that he unlawfully, willfully, and knowingly

_ did receive, possess and conceal certain liquor which had

been stolen front Interstate Commerce in violation of

Title 18 U.S. Code, § 659.

The evidence, twenty-six (26) cases of whiskey, was

discovered di during a search of a shed on a farm in Hazard,

Kentucky, under the color of a search. warrant.

The affidavit in support of the search warrant was “clear- |

ly insufficient.” See: Bottom of Page 8, “Memorandum for

the United States ‘in Opposition to Petition for .Writ_ of

Certiorari” in the instant case. ©

Petitiqner’s standing to challenge the search warrant was

_. Mot questioned in the proceedings before the Detect Court

"Judge. | |

A “Motion to Suppress the Evidence” becatise the search |

warrant was defective, was overruled by the Trial Court

ria . >

\ 2 *

ee

. During the course of the trial on the merits, the, Pe-

titioner disclaimed any interest in the prams searched

'. or the property ‘seized.

The Petitioner was found anes by a jury, and the

ome Court sentenced the Petitioner to two (2) years imprison-

‘first’ tim

ment* and imposed a fine of Five i panna ($5; 000. acs :

Dollars. .

On appeal to the United States Cou of Ritts for.

the Sixth Circuit; the U. S. Government argued for the

ae Petitioner lacked standing. to challenge the

search wayrant because of his testimony offered uring

the trial on the merits disclaiming an interest in the prem-

_ ises searched or the property seized.

The Sixth Circuit Court, of- - Appeals sii the Gov-

ernment’s contention that the Defendant lacked standing

and affirmed the trial court’s judgment of conviction as ¥ .

ing upon Jones v. United States, supra.

, The Petitioner sought a rehearing in &he sixth Circuit |

Court of Appeals which was denied.

On October 9th, 1971, Petitioner filed his “Petition for

Writ of Certiorari” in this Court.

On January 9th, 1972, the “Petition for Writ of Certi-

orari” ‘was epee, by this Court.

s

ARGUMENT

THE SIXTH CIRCUIT COURT OF APPEALS

ERRED WHEN IT DENIED STANDING TO THE

PETITIONER WHO HAD BEEN INDICTED FOR

' A CRIME HAVING POSSESSION AS git ESSEN:

TIAL ELEMENT.

The Petitioner: was. indicted by a Federal Grand Jury”

which charged among: other things that he unlawfully, will-

fully, and mpowingly did receive, possess, and ee cer-

4

tain liquor which had been stolen from aeetine Com-

merce. See: Appendix, Page 2.

Jones held that when possession of the seized evidence

is itself an essential element of the offense with which the

Defendant is charged, the Government is precluded from

denying that the Defendant has the requisite possessory

interest to challenge the admission of the evidence. See:

Simmons v. U. S., 390 U.S. 377, 390 (1968) .

Defendant was charged in an indictment having “posses- .

- sion” as an essential element of the offense.

Therefore, the Government is precluded from denying

sanding tothe Petitioner to challerige the admission ofthe

evidence.

The Government denies that es affidavit for the search

warrant was-tlearly insufficieny/ The affidavit stated that

the “affiant had reasonable grounds from information from

an’ informant that this whiskey was transported to the

above described premises.” See: Appendix, Page 6.. Such

an affidavit is fatally defective. See: Aguilar v. rom

$78 US. 108.

aan ; supra, was interpreted narrowly by the ‘Third

Circuit’ Court of Appeals in United Stages v. Konigsberg,

$36 Fed. (2nd) 844. The Third Cifcuit Court of Ap-

_ peals suggested that when possession is only one of several

elements in the crime charged that the Defendant is not

automatically conferred standing to attack the validity

of a search. In the recent Second Circuit Court of Ap- .

peals case, U.S. v. Price, 447 Fed. (2nd) 2% (July 8th,

- 1971), the Court collected decisions which have interpreted

Jones and which have rejected Konigsberg.

At Page 28 of the official report, the Court states:

“The First, Fourth, Fifth and rae ¢ Circuit oye

followed Simmons in ego W-

. Jones. United States v. Cobb,.432 Fed. an Ra 16

_ (Fourth Circuit 1970) ; United States v. A

Ni

424 Fed. (2nd) 1209 (Seventh Circuit, 1970) ; Glisson

v. United States, 406 Fed. (2nd) 423, 427 (Fifth Cir-

cuit, 1969); Niro v. United States, 388 Fed. (2nd)

7 536, 535 (First Circuit, 1968) .”

The Second Circuit also disposed of the argument ad-

vanced by the Government that when testimony at the

pre-trial hearing on the “Motion to Suppress” tends to

incriminate the Defendant that testimiony cannot later be

psed at the trial in chief. ys

/ Sete that argument the Second Circuit Court of Appeals

ted that Simmons explicitly re-affirmed the automatic

standing of Jones. The Second Circuit refused to give

the Government the advantagé 6f a conviction based on in-

consistent positions which a Defendant may be forced to

“It is significant in the insfant case that the Petitioner's

standing to attack the validity of the search. warrant was

not raised during the course of the proceedings before

the District Court. | ao

This is unlike the situation which occurred in Jones,

supra. Jn Jones prior to the trial, the Petitioner duly

moved to suppress evidence obtained through the execution

of a search warrant on the ground that the ‘warrant had

been issued without a showing of probable-cause.

_p- The Government challenged the Petitioner's standing

to make this motion betause Petitioner alleged neither

ownership of the articles seized nor an interest in the apart-

ment greater than that of an invitee or guest. The Dis-

trict Court in Jones then agreed to take evidence on the

issue of Petitioner's standing.

‘The Petitioner in the instant case never had his stand-

ing to challenge the search warrant questioned by the

Government:

During the trial in chief, the Petitioner disclaimed in-

5

\

6

terest in the premises’ searched or the property found as

the result of the search. The Government's contention ap-

péars to be that the evidence disclosed at the trial some-

how relates back to the hearing on the pre-trial “Motior to

Suppress Evidence” and denies the Petitioner standing.

Simmons, supya, announced a further rule that any ad-

missions of the Defendant during the course of the pre-

trial hearing on thé. “Motion to Suppress” could not be

used against him at the trial in chief.

However, the Government in the instant case seems to

argue that admissions made at the trial in chief by the’

. Defendant may somehow be used to deny him standing,

after the fact %% it were, at the motion for suppression of —

evidence conducted before the trial in chief. Such a re-

sult is not supported by Simmons.

CONCLUSION

For the reasons stated herein, Petitoner respectfully re-

quests this Court to vacate the proceedings below to de- . —

termine that the search warrant is defective and further or- .

ders the suppression of the evidence seized under the color

| of the defective search warrant, and fi new trial. —

Respectfully submitted,

WILLIAM F. HOPKINS and

JAMES N. PERRY

414 Walnut Street

Cincinnati, Ohio 45202

Attorneys for Petitioner