Opposition — United States v. Watson

No. 74-538 RECEIVED

= om JAN 2 91978 IN THE SUPREME COURT OF THE UNITED STATES

OF THE October Term, 1974

SUPREME COURT OF THE UNITED STATES 4 mon, [

No. 74-538

October Term, 1974

UNITED STATES C> AMERICA,

)

UNITED STATES OF AMERICA, Petitioner,

Petitioner, vs.

vs. HENRY OGLE WATSON,

HENRY OGLE WATSON, Respondent.

Respondent.

On Petition for Writ of Certiorari to the United States

— Court of Appeals for the Ninth Circuit

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

AND FOR APPOINTMENT OF COUNSEL

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

Respondent HENRY OGLE WATSON, hereby and herewith

AND FOR APPOINTMENT OF COUNSEL

asks leave to file the attached Opposition to Petition for

Writ of Certiorari without prcpayment of costs and to proceed

in forma pauperis pursuant to Rule 53, paragaraph 1 of the

Rules of this Court, and thus to dispense with the require-

MICHAEL D. NASATIR, of

Nasatir, Sherman & Hirsch ment of printed briefs in the instant matter.

8383 Wilshire Boulevard, #510

Beverly Hills, CA 90211 Respondent also requests that the Court enter an

(213) 653-3303

order appointing MICHAEL D. NASATIR, Esq., 8383 Wilshire

DONALD M. RE, of

Newton, Re & Russell Boulevard, Suite 510, Beverly Hills, California 90211, as

8383 Wilshire Boulevard, #510

Beverly Hills, CA 90211 counsel for Respondent, in order that the Clerk, pursuant to

(213) 655-5011

Rule 53(7) will be permitted to reimburse said counsel for

Attorneys for Respondent

his services rendered herein and for transportation expenses

in connection with the argument of this case.

DATED: January 23, 1975

AFFIDAVIT OF HENRY OGLE WATSON

STATE OF CALIFORNIA )

COUNTY OF LOS ANGELES =

I, HENRY OGLE WATSON, being first duly sworn, de-

pose and say:

l. I arm the respondent in the within matter. The

accompanying opposition to Petition for Writ of Certiorari

and this Motion for Leave to Proceed in Forma Pauperis and

for Appointment of Counsel was prepared by MICHAEL D. NASATIR,

Esq., 8383 Wilshire Boulevard, Suite 510, Beverly Hills,

California 90211. Mr. Nasatir represented me in all pre-

trial and trial proceedings before tne United States District

Court for the Central District of California. Mr. Nasatir

further represented me on my appeal to the United States

Court of Appeals for the Ninth Circuit.

2. On or about March 27, 1973, the United States

Court of Appeals for the Ninth Circuit entered its order per-

mitting my appeal therein in forma pauperis, and appointing

MICHAEL D. NASATIR to represent me in that appeal. A copy

of the order of the Court is attached hereto, marked Exhibit

"A", and incorporated herein by this reference.

3. Thereafter, on or about December 27, 1974,

this Court requested that a response be filed to the Petition

for Writ of Certiorari to the United States Court of Appeals

for the Ninth Circuit. I am presently unable to pay the fees

and costs in printing the opposition hereinabove requested,

or with regard to other matters which may arise in the proceed-

ings. I am also unable to pay for the services of an attorney

in the event that certiorari is granted and briefs are to be

filed before this Court. Therefore, I believe that I am

entitled to the appointment of counsel, and to be permitted

to proceed in forma pauperis with regard to the instant docu-

ment and any future documents as they may become necessary.

4. In the event that my Motion to Proceed in

Forma Pauperis is granted, I hereby request that the Court

enter an order appointing as my counsel, MICHAEL D. NASATIR,

Esq., who has informed me that, if so appointed, he will

serve as my counsel in this Court.

DATED: January 24, 1975

Subscribed and sworn to before

me on January 24, 1975

“arc €VrORMA

aS, rr uM. FICE on

— Pe. 40° Cours

By Soadson Gape: Spt 2 ISS

No. 74-538

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1974

UNITED STATES OF AMERICA,

Petitioner,

vs.

HENRY OGLE WATSON,

Respondent.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

MEMORANDUM IN OPPOSITION FOR HENRY OGLE WATSON

MICHAEL D. NASATIR, of

Nasatir, Sherman & Hirsch

8383 Wilshire Boulevard, #510

Beverly Hills, CA 90211

(213) 653-3303

DONALD M. RE, of

Newton, Re & Russell

8383 Wilshire Boulevard, #510

Beverly Hills, CA 90211

(213) 655-5011

Attorneys for Respondent

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1974

No. 74-538

UNITED STATES OF AMERICA,

Petitioner,

vs.

HENRY OGLE WATSON,

Respondent.

eee ee eee ee

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

MEMORANDUM IN OPPOSITION FOR HENRY OGLE WATSON

Opinion Below

The opinion of the Court of Appeals is reported as

United States v. Watson, 504 F.2d 849 (1974).

Statement

A hearing was held in the United States District

Court for the Central District of California on the respond-

ent's motion to suppress evidence and motion to determine the

voluntariness of the respondent's statements. The evidence

produced by the Government indicated that FRANK BARBARICK,

a United States Postal Inspector, had contact with AWAD KHOURY,

four or five times in 1972, regarding alleged mail fraud cases

concerning Mr. WATSON. RT a KHOURY never testified in

Court with regard to any of the information he gave to the

inspector, nor had the information led to any arrests prior

to the arrest of respondent on August 23, 1972, nor to any

convictions. No corroboration was obtained with regard to

KHOURY's information regarding WATSON, and no arrest of the

L

RT refers to Reporter's Transcript of proceedings.

respondent was made as a result of these early meetings.

On August 17, 1972, KHOURY told BARBARICK that he (KHOURY)

was about to obtain a credit card from HENRY WATSON later

that day. RT 11-13. BARBARICK obtained the credit card and

KHOURY indicated he could obtain more cards from respondent.

At the agent's insistence, KHOURY arranged a meeting, which

was postponed several times, but which eventually transpired

on August 23, 1972. BARBARICK had arranged with KHOURY for

a signal to indicate if WATSON was in possession of any stolen

mail. The signal was given. BARBARICK then entered the res-

taurant in which KHOURY and respondent were meeting, and

placed respondent under arrest.

WATSON was placed under arrest for the card ob-

tained by BARBARICK on August 17, 1972, and not based upon

the signal received by the surveilling agent on August 23,

1972. RT 32.

Respondent was then removed from the restaurant

and given his Miranda warnings. BARBARICK asked if he could

search respondent's car, to which respondent allegedly responded

"go ahead." RT 23. BARBARICK conducted a search of the auto-

mobile and discovered an envelope on the driver's side under

a floormat. The envelope was not opened until BARBARICK

returned to his office in downtown Los Angeles. RT 179.

Two envelopes were contained inside the outside envelope,

and it was these two envelopes which contained the credit

cards which were the source of the allegations in Counts l

and 3,

Respondent's motion to suppress the stolen credit

cards was denied by the District Court, and respondent was

subsequently convicted of possessing the two credit cards

seized from the automobile. He was acquitted on a third

count charging him with possession of the card provided by

KHOURY on August 17, 1972.

The United States Court of Appeals for the Ninth

Circuit reversed and determined that the failure to obtain

an arrest warrant under the facts of the present case vitiated

the arrest. The Court further determined that the consent

to search the automobile was involuntary and that the "fruits

of the search should have been suppressed." 504 F.2d 849,

853.

Introductory Statement

The first question allegedly presented in the

Petition for Writ of Cortiorari is “whether an arrest warrant

is required in order to make an arrest in a public place.”

The question as posed by petitioner is incorrect and irrele-

vant. The facts of the case indicate clearly that the

arresting agents had probable cause to arrest the respondent

for the offense on which he was ultimately arrested, six days

prior to the arrest, but at no time attempted to obtain prior

judicial approval for the arrest. The precise issue discussed

—_—_—_—_—

and resolved by the Court of Appeals was whether the arrest

——

was vitiated through the failure of the agents to obtain a

<<<“ -

etl

The decision of the Court of Appeals does not stand

for the proposition, as petitioner asserts, that an arrest

without a warrant is per se unconstitutional. The decision

merely places the issue of arrest, i.e., the “seizure” of a

person in proper historical and legal perspective under tra-

ditional Fourth Amendment privacy notions. As such, it is

completely compatible with prior decisions of this Court.

Petitioner's arguments with regard to the legality of the

arrest completely overlook the crucial fact that the arrest-

ing agent testified that respondent was arrested based upon

the information obtained six days prior to the arrest and

not upon any information obtained thereafter or on the date

of the arrest. The arguments presented by petitioner, when

.

3.

—

-

viewed in this factual background, are insubstantial and the

constitutional dilemma alleged is illusory.

Statement

l. The Fourth Amendment to the United States

Constitution contains specific provisions protecting the

privacy of the "person" as well as houses, papers, or effects.

That Amendment states in part:

"The right of the people to be secure

in their persons . . . against unreasonable

searches and seizures, shall not be violated,

and no Warrants shall issue, but upon pro-

bable cause, supported by Oath or affirma-

tion, and particularly describing the...

persons .. . to be seized.”

This Court has long recognized that the privacy of

the person is at least as sacrosanct as the privacy of a

dwelling or a person's papers and effects, and is thus accorded

at least as much constitutional protection. Giordenello v.

United States, 357 U.S. 480, 78 S.Ct. 1245 (1958). This notion

has perhaps been most clearly expressed in this Court's pro-

nunciation in Katz v. United States, 389 U.S. 347, 88 S.Ct.

507 (1967) that the Fourth Amendment protects “persons not

places." Rationally, protections offered with regard to a

person's home or personal effects mean little if the person

himself is not equally shielded. The most obtrusive inter-

ference with a citizen's privacy occurs through the deten-

tion or seizure of the person.

Moreover, this Court has consistently recognized

that the protection afforded by a prior judicial approval of

a search, seizure, or arrest is to be preferred over the

determination of investigative agencies involved in the

"often competitive enterprise in ferreting out crime."

Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369

of.

4.

(1948). The exigencies of law enforcement which require on

the spot determination under certain circumstances give way

to the preference for a detached determination of a magistrate

when available. The Court has also evidenced deference and

concern for the possible abrogation of the rights of citizens

based upon probable cause determinations by law enforcement

agencies. See for example, Wong Sun v. United States, 371

U.S. 471, 479, 83 S.Ct. 407, 413 (1963). The history of

growth of constitutional developments in this area demon-

strates the necessity to protect against even the slightest

of abuses which can occur through permitting law enforcement

agencies to make their own determination of this basic consti-

tutional concept. Henry v. United States, 361 U.S. 98, 100,

80 S.Ct. 168, 170 (1959). See aiso Brinegar v. United States,

338 U.S. 160, 176, 69 S.Ct. 1302,.1311 (1949).

Once it is realized that the rationale for pre-

ferring a warrant in a search and seizure situation is equally

applicable to the seizure of the person through arrest, the

specific insistence upon pricr judicial approval becomes

particularly relevant under the facts of the present case.

The pronouncements of this Court in Coolidge v. New Hampshire,

403 U.S. 443, 87 S.Ct. 1642 (1971), exemplify the scrutiny

which must be applied to a failure to obtain a warrant, absent

exigent circumstances, and when sufficient time existed to do

so with no substantial interference with the law enforcement

function. The unambiguous language of Coolidge, relied upon

by the Court of Appeals notes that:

"The case of Warden v. Hayden . . . where

the Court elaborated a ‘hot pursuit’ justi-

fication for the police entry into the

defendant's house without a warrant for

his arrest, certainly stand by negative

implication for the proposition that an

arrest warrant is required in the absence

of exigent circumstances.” 403 U.S. 479-

481, 91 S.Ct. 2045.

The Court concluded that “the determining factors

are advance police knowledge of the existence and location

of the evidence, police intention to seize it, and the ample

opportunity for obtaining a warrant." 403 U.S. at 482, 91

S.Ct. at 2046. This pronouncement is neither problematical

nor novel. The necessity for prior judicial approval with

regard to detention was recognized in Davis v. Mississippi,

394 U.S. 721, 89 S.Ct. 1394 (1969). The impropriety of

relying merely upon “inconvenience” of obtaining a warrant

was underscored in Johnson v. United States, 333 U.S. 10,

68 S.Ct. 367 (1948). The First Circuit in Niro v. United

States, 388 F.2d 535, 538 (1968), relied upon the fact that

"although (the officers) had long had sufficient knowledge

and opportunity to seek warrants for arrest and seizure, the

officers had sought none." (Emphasis added.) And finally,

as stated above, the historical and legal precedent of the

Fourth Amendment indicates an insistence upon a magistrate's

determination absent exigent circumstances.

Similariy, petitioner's concern for the effective-

ness of law enforcement as expressed in the Petition for Writ

of Certiorari at page 9 is illusory. It is there stated that

police will be required to ascertain at their peri’ the moment

that probable cause attaches. This decision, however, is

no different from the decision which must be made with regard to

seizure of tangib_e items of evidence from a dwelling, nor

is it substantively different from the probable cause deter-

mination which the officers must make “at their peril” in

arresting persons upon probable cause. Similarly, this Court

has found no difficulty in imposing such a burden with regard

hn

6.

—S nee ee

to searches of automobiles under Carroll v. United States,

267 U.S. 132, 45 S.Ct. 280, or Chambers v. Maroney, 399 U.S.

42, 90 S.Ct. 1975. In contrast, the decision of the Court

of Appeals will insure that arrests are made while evidence

is fresh and, to the extent that officers feel that the

suspect will be involved in future criminality, prevents

the commission of other crimes against the community by

effectuating an arrest of that suspect. Moreover, contrary

to the assertion of petitioner that the conduct of the agents

in this case in no way could be utilized as a subterfuge for

an eventual illegal search, it appears thatthe factual cir-

cumstances of this case directly parallel the concern which

this Court discussed in Chimel v. California, 395 U.S. 752,

89 S.Ct. 2035 (1969). The pre-Chimel, search incident to

arrest rule, enshrined in United States v. Rabinowitz, 339

U.S. 56, 70 S.Ct. 430 (1950), presumably permitted officers,

armed with probable cause, to arrest a suspect and utilize

that arrest as a subterfuge to authorize a wholesale search of

the suspect's dwelling. In this case, it is clear that the

agents, armed with probable cause to arrest the respondent,

waited over a period of several days until they felt the

respondent might be in a position in which they could,

through one means or another, initiate a search of the

respondent's person and automobile in order to discover

additional items of evidence or contraband. Again, the possi-

bility for abuse is highlighted not only by the fact that the

agents arrested the respondent based only upon the information

which they had possessed for six days and not upon the infor-

mation they obtained on the day of the arrest; but that the

agent did not even bother to verify his opinion of the nature of

the contents of the discovered envelope until returning to his

office hours later. The prophylactic measures announced in

Chimel are equally applicable to the arrest situation and the

decision of the Court of Appeals below is consistent with these

7-

Fe

———_—_—_—_——

principles. Finally, petitioner's concern that law enforce-

ment officials may be placed on the horns of a dilemman for

acting either too soon or too early overlooks the Court of

Appeals determination that a warrant must be obtained absent

exigent circumstances. If a delay in arrest is authorized,

that determination must ultimately be made judicially. In

the present case, no such exigent circumstances were adduced.

It should be noted that an alternative ground,

authorizing suppression of the evidence presented to the Court

of Appeals, but not discussed in the Opinion,is that the

seizure of the envelope with its unknown contents was itself

impermissible and could not be justified under any recognized

constitutional doctrine. The validity of a “plain view

seizure” requires that it be “immediately apparent to the

police, that they have evidence before them." Coolidge v.

New Hampshire, supra. The later search of the envelope also

violates the precepts of Preston v. United States, 376 U.S.

364, 84 S.Ct. 881 (1964).

2. The second aspect of the decision of the Court

of Appeals which petitioner asks this Court to consider deals

with the determination of that Court that the "consent" to

search the respondent's automobile was invalid. Petitioner

attempts to limit the determination of the Court of Appeals

to the conclusion that the consent was "involuntary" and thus

excluded the contention that the consent was tainted by the

illegality of the arrest as the "fruit of the poisonous tree.”

Respondent contends that the determination by the Court of

Appeals below is susceptible of supporting both these con-

tentions. First, the "fruit of the poisonous tree" issue

was raised by respondent below. Secondly, the Court states

in its conclusion at 504 F.2d 853:

_f-

"Not only was appellant WATSON in

custody, he was in custody in violation

of the Fourth Amendment, since the agents

had failed to obtain an arrest warrant.”

With regard to the issue of the voluntariness of

the consent, petitioner relies almost exclusively upon this

Court's decision in Schneckloth v. Bustamonte, 412 U.S. 219,

93 S.Ct. 2041 (1973). The tenor of petitioner's argument is

that the only considerations relevant to a voluntariness

determination under Schneckloth are those relating to the

subjective impressions of respondent. A fair reading of

Schneckloth, however, supports no such limitation. This

Court has there stated that the proper focus is on the

"totality of the circumstances." Such totality would appear

to include more than the limited inquiry into the subjective

state of the respondent. Schneckloth cites as support for

its conclusion Davis v. United States, 328 U.S. 582, 66 S.Ct.

1256 (1946). Two of the factors relied upon there with regard

to the voluntariness determination were "the public character

of the property” and the “existence of the right to inspect.”

These inquiries have no relevance with regard to the subjective

state of the alleged consentor but, rather, bear upon the

legality and appropriateness of the police conduct. This

Court in Schneckloth went on to note that:

"Two competing concerns must be

accommodated in determining the meaning

of a ‘'voluntary' consent--the legitimate

need for such searches and the equally

important requirement of assuring the

at 227,

absence of coercion.” 412 U.S.

92 S.Ct. at 2048.

The language utilized with regard to “legitimate

need" reflects the analysis made by this Court in the preceding

4:

9.

paragraphs of the Schneckloth opinion in which this Court

stressed that the standards announced were a balance between

a protection of the security of the citizenry and the neces-

sity for effective and proper law enforcement. Thus, the

Schneckloth determination would seem to include in each

case an alaysis of whether the consent as obtained serves

this legitimate police function. It thus becomes apparent

that considerations as to the legality of the arrest and

detention of respondent are completely relevant in deter-

mining the “voluntariness”" of the consent. For, exploitation

of illegal procedure does not serve the legitimate ends of

effective law enforcement. The interpretation sought by

petitioner would have the deleterious effect of encouraging

to some degree an illegal detention or arrest in the hopes

of obtaining a consent. However, there shouié be no right

for an investigative agency to benefit from a situation which

they had no right to create in the first instance.

This Court's reliance upon aspects of coercion in

the Schneckloth opinion are also relevant. This Court speci-

fically recognized the vitality of the argument expounded in

Bumper v. North Carolina, 391 U.S. 543,

that coercion is implicit in any submission to a claim of lawful

authority. In the present case, the exploitation of the illegal

arrest is tantamount to the assertion of lawful authority found

coercive in Bumper. In each case, the assertion of the right

to initiate the questioning was based upon a non-existent

authority. The position of the Court of Appeals below is thus

wholly consiste:.t with decisions of this Court. Moreover,

it clearly reflects the stance taken by the Ninth Circuit in

United States v. Rothman, 492 F.2d 1260, 1265 (1973). The

Court there noted that:

"This is not a case in which a consent

search was necessary or proper. If

-/ 6-

10.

probable cause for a search was avail-

able the officers had ample time to

get a warrant. (Citation omitted.)

There was no risk that evidence would

be lost or destroyed or that Rothman

would flee. In short there was no

justification for the coercive official

tactics which produced this consent."

Finally, the impropriety of reliance upon the

consent obtained during a term of illegal arrest conforms

with numerous decisions which prevent the utilization of

the fruits of such illegal detention or arrest. In Manning

v. Jarnigan, 501 F.2d 408 (6th Cir. 1974), the Court con-

sidered an automobile stop conducted without probable cause.

During the term of the detention, consent to search was ob-

tained and the Court determined that the items seized pur-

suant to the consent, as the fruit of the unlawful detention,

should have been suppressed. Similarly, in United States v.

Mallides, 473 F.2d 859 (9th Cir. 1973), the Court determined

that suppression was required as much as the items seized were

the fruit of an illegal detention. See also Henry v. United

States, 361 U.S. 98, 80 S.Ct. 168 (1959); United States v.

Kandlis, 432 F.2d 132 (9th Cir. 1970).

3. The opinion of the Court of Appeals is

completely consistent with both the pronouncements of this

Court and decisions of the lower Federal Courts. This case

is therefore inappropriate for consideration by this Honorable

Court. Respondent therefore respectfully submits that the

Petition for Writ of Certiorari to the United States Court of

Appeals for the Ninth Circuit should be denied.

4////

-Ih S111

ll.

DATED: January 24, 1975

Respectfully submitted,

, Nasatir,

Sherman & Hirsch, Attorneys for

Respondent

> ee &

DONALD M. RE, of Newton, Re &

Russell, Attorneys for Respondent

Id.