# Petition — Simpson v. Ohio > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1552%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 424 U.S. 943 ## Text Supreme Court, U. &. > mae 2 oe a JAN 9 1976 . Supreme Court of the United States October Term, 1975 " No. 75-97 1 4 CHARLES SJMPSON, Petitioner, vs. STATE OF OHIO, Respondent. — — — z= PETITION FOR WRIT OF CERTIORARI To the Ohio Court of Appeals for the Eighth Appellate Judicial District of the State of Ohio —— —— — — —— J— — — | JAMEs R. WILL Is, Ese. 1212 Bond Court Building 1300 East Ninth Street Cleveland, Ohio 44114 216/523-1100 Attorney for Petitioner Joun T. CORRIGAN Cuyahoga County Prosecutor Criminal Courts Building 1560 East 21st Street Cleveland, Ohio 44114 216/771-0660 Attorney for Respondent THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO—TEL. (216) 621-5647 TABLE OF CONTENTS e ee NE EO 1 Petition for Writ of Certiorari i 1 e SAL eS 1 J er — 2 r 2 ] 2 Constitutional and Statutory Provisions Involved 3 .. tices 8 r xx 9 B. The Trial nnn . 28 C. Motions Made During Trial * 32 r Ä 32 Arguments Relied On for Allowance of Writ 34 I. An affidavit for a search warrant which makes no effort to show the source of an undisclosed informant’s conclusions, or to demonstrate that he is credible or his information otherwise re- liable, cannot support the issuance of a search warrant for the seizure of a motor vehicle as EE SE ( 34 II. An intentional or recklessly untruthful mis- representation will result in an invalidation of a warrant, the same is true of an unintentional misrepresentation of a material issue of fact 43 III. The right of confrontation and the hearsay rule are both violated when a crucial witness is allowed to relate as substantive evidence the contents of conversations had with an undis- closed informant, and with others—including a Judge and the County Prosecutor ................ 52 VII. II A trial court cannot, consistent with the re- quirements of due process, sanction the non- disclosure of the identity of an alleged infor- mant where it appears necessary (1) to avoid the risk of false testimony, (2) to secure use- ful testimony, or (3) it is essential to a fair de- termination of a cause or issue 59 It is a violation of due process for the court to resort to disjunctive language in charging the jury where such language creates affir- mative theories upon which a verdict of guilt ö 70 A law which alters the rules of evidence so as to permit an uccused to be convicted upon less, or different, evidence than was required when the charged crime supposedly was com- mitted is invalid as ex post facto 75 It is a violation of due process to instruct the jury that one can be convicted of committing one offense upon proof he committed another distinctly different offene 82 —— 2 te os 83 Appendices: A. Journal Entry of Supreme Court of Ohio De- Rn, Al B. Journal Entry of Supreme Court of Ohio Dis- r A2 C. Opinion and Journal Entry of Court of Appeals e òůͥ ̃fTſ]hG!!! A3 D. Journal Entry of Court of Appeals Denying „%%% — Ale E. Journal Entry of Court of Common Pleass A20 F. Search Warrant for Volkswagen 422 G. Search Warrant for Cadillac A25 III TABLE OF AUTHORITIES Cases Ackley v. United States, 200 F.2d 217. 72 Aguilar v. Texas, 378 U.S. 108 (1964) 35, 36, 38, 42, 43 Alderman v. United States, 394 U.S. 165 (1969) ............ 66 Brady v. Maryland, 373 U.S. 83 (1963) ...... 61 Branzburg v. Hayes, 408 U.S. 665 (1972) .................... 59 Calder v. Bull, 3 U.S. (3 Dall) 386 (1798) 78 Chambers v. Mississippi, 410 U.S. 284 (1973) 60 Coleman v. McGettrick, 2 Ohio St. 2d 177 (1965) 74 Crain v. United States, 162 U.S. 625 71 Douglass v. Alabama 380 U.S. 415 (1965) 54 Favre v. Henderson, 464 F.2d 359 (5th Cir.), cert. de- kl, 57, 58 Giglio v. United States, 405 U.S. 150 (1972) ................... 61 In Re Winship, 397 U.S. 358 (19717 ———— 72 Jencks v. United States, 353 U.S. 657 (1957 62 Kitchen v. United States, 272 F.2d 757 (1959) ................ 71 Kring v. Missouri, 107 U.S. 221 (1883) 76 Leary v. United States, 395 US. 31 (1969) .................... 81 Nixon v. Sirica, 360 F. Supp. 1 (1973) 66, 67 Nixon v. Sirica, 487 F.2d 700 (1973) 67, 68, 69 North Carolina v. Wrenn * „94 S. Ct. 3°30 177 ˙ A A ˙ ˙²²p1 ̃—˙wV; 47 Parker v. Maxwell, 174 Ohio St. 471 (1963) 70 People v. Lewis, 20 III. App. 3d 161, 313 N. E. 2d 170 e, 65 People v. Riser, 47 Cal. 2d 566, 305 P.2d 1 (1956) o4 Plachy v. State, 91 Tex. Crim. R. 405, 239 S.W. 979 (ia ELAS SET 2 75 IV Pointer v. Texas, 380 U.S. 400 (1965) . . 54, 63 Price v. Georgia, 398 US. 323 (1970) 79 Roviaro v. United States, 353 U.S. 53 (1957) — ꝓ ——̃ Ä 58, 59, 62, 65, 69 Scher v. United States, 305 U.S. 251 (1938) 59 Silverthorne Lumber Company v. United States, 251 „„ 39 Smith v. Illinois, 390 U.S. 129 (1968) eee 54, 55 Spinelli v. United States, 393 U.S. 410 (1969) ß 35, 36, 38, 40, 42, 43 State v. Daniels, 169 Ohio St. 87 (19599 71 State v. Johnson, 12 Minn. 476 (1867) .. 75 State v. Thompson, 1 Ohio App. 2d 533 (1965) ............ 39 Steele v. United States, 267 U.S. 498 (1925) 45 Stromberg v. California, 283 U.S. 359 (1931) ........ 80, 81, 82 Thompson v. Missouri, 171 U.S. 380 (1898) 75 United States v. Belculfine, 508 F.2d 58 (1974 50, 51 United States v. Carmichael, 489 F.2d 983 (7th Cir. 6838 — ů¶ ana 46, 48, 50 United States v. Damitz, 495 F.2d 50 (1974) 48, 49, 50 United States v. Dunning, 425 F.2d 836 (1969) 41, 48, 49 United States v. Hurse, 453 F.2d 128 (1972) . 68 United States v. Jackson, 384 F.2d 825 (1967) . 68 United States v. Leichtfuss, 331 F. Supp. 723 (1971) 64 United States v. Marihart, 492 2d 897 (8th Cir. 1974) —̃ — ³—ͤ — — ˙*ö⏑— LU tatiana 46, 48, 50 United States v. Paroutian, 299 F.2d 486 (1962) 39 United States v. Reynolds, 345 U.S. 1 (1953) 66, 67, 68 United States v. Thomas, 489 F.2d 664 (5th Cir. 1973) . ͤ ett semen 46, 48, 50 United States v. Thompson, 422 F.2d 1104 (1970) .......... 72 Washington v. Texas, 388 U.S. 14 (1967) 60 Vv Whitely v. Warden, 401 U.S. 560 (197999 40 Wilborg v. United States, 163 U.S. 632 1 —— 72 Will v. United States, 389 U.S. 990 64 Texts 51 Federal Rules Decisions 37ù „ 59 Forkosh, The Constitutional Right to Challenge the Contents of Affidavits in Warrants Issued Under the Fourth Amendment, 34 Onto Sr. L.J. 297 (1973) ... 47 Grano, A Dilemma for Defense Counsel: Spinelli- Harris, Search Warrants and the Possibility of Police Perjury, 1971 U. ILL. L.R. 40) 40 Kipperman, Inaccurate Search Warrant Affidavits as a Ground for Suppressing Evidence, 84 Harv. L. Rev. e 47 r 2 Te 70 Constitutions United States Constitution: ä 3, 78 CE 4 r ̃Ä U 4 r ee 4 Statutes Rule 29, Ohio Rules of Criminal Procedure 4 Rule 41, Ohio Rules of Criminal Procedure 5, 12, 39, 40 Rule 41(C), Ohio Rules of Criminal Procedure 41 Ohio Revised Code, Section 2945.33333333;lm 6, 83 Ohio Revised Code, Section 4545.0o77ʒ 8, 33 Ohio Revised Code, Section 4549.04 6, 7, 76, 83 Ohio Revised Code, Section 4549.04 (EL)) 71 Ohio Revised Code, Section 4549.07 7ʒ 77 8, 83 Supreme Court of the United States Octeber Term, 1975 — STATE OF OHIO, Respondent. PETITION FOR WRIT OF CERTIORARI To the Ohio Court of Appeals for the Eighth Appellate Judicial District of the State of Ohio To the Honorable, the Chief Justice and Associate Justices of the Supreme Court of the United States: The petitioner, Charles Simpson, prays that a writ of certiorari issue to review the judgment of the Ohio Court of Appeals for Cuyahoga County, which judgment became final on October 16, 1975, when the Supreme Court of Ohio denied further appellate review. OPINIONS BELOW The judgment entries of the Supreme Court of Ohio denying further appellate review are attached hereto as Appendixes “A” and “B”, infra, at pp. Al and A2. The decision of the Ohio Court of Appeals for Cuyahoga 2 County, the judgment to which this petition is directed, was not formally reported. The Journal Entry of that Court is attached hereto as Appendix C“ infra, at page A3. The entry of the Court of Common Pleas (the trial court) is Appendix E“, infra, at page A20. JURISDICTION The judgment of the Supreme Court of Ohio was entered on October 16, 1975. The jurisdiction of this Court is invoked under 28 U.S.C. §1257(3), on the basis that rights, privileges, and immunities under the United States Constitution are contended to have been violated. QUESTIONS INVOLVED (1) Can an affidavit for a search warrant which makes no effort to show the source of an undisclosed informant’s conclusions, or to demonstrate that he is cred- ible or his information otherwise reliable, support the issu- ance of a search warrant for the seizure of a motor vehicle as stolen property? (2) Can an intentional or recklessly untruthful mis- representation of a material fact, or even an umintentional misrepresentation of such a fact in an affidavit be disre- garded if the affidavit is otherwise sufficient? (3) Is it a violation of the right of confrontation and the hearsay rule where a crucial witness is allowed to relate as substantive evidence the contents of conver- sations had with an undisclosed informant, and with others—including a Judge and the County Prosecutor? (4) Can a trial court, consistent with the require- ments of due process, sanction the nondisclosure of the 3 identity of an alleged informant where it appears neces- sary (1) to avoid the risk of false testimony, (2) to secure useful testimony, or (3) it is essential to a fair determma- tion of a cause or issue? (5) Is it a violation of due process to charge a jury by means of disjunctive language which creates alternative theories upon which a verdict of guilty could be based? (6) Is a law which alters the rules of evidence so as to permit an accused to be convicted upon less or different evidence than was required when the charged crime supposedly was committed invalid as ex post facto? (7) Is it a violation of due process to instruct the jury that one can be convicted of committing one offense upon proof he committed another distinctly different of- fense? CONSTITUTIONAL AND STATUTORY . PROVISIONS INVOLVED Constitution of the United States, Article I, Section 10, Clause 1: “No State shall * * * pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.” Constitution of the United States, Amendment IV: “The right of the people to be secure 1 their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” 4 Constitution of the United States, Amendment V: No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or in- dictmment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.” Constitution of the United States, Amendment XIV: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” ‘Rule 29, Ohio Rules of Criminal Procedure: “The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or com- plaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. The court may not reserve ruling on a motion for judgment of acquittal made at the close of the state’s case.” 5 Rule 41, Ohio Rules of Criminal Procedure: “A search warrant authorized by this rule may be issued by a judge of a court of record to search and seize property located within the court’s territorial juris- diction, upon the request of a prosecuting attorney or a law enforcement officer. A warrant may be issued under this rule to search for and seize any: (1) evidence of the commission of a criminal offense; or (2) contraband, the fruits of crime, or things otherwise criminally possessed; or (3) weapons or other things by means of which a crime has been committed or reasonably appears about to be committed. A warrant shall issue under this rule only on an affidavit or affidavits sworn to before a judge of a court of record and establishing the grounds for issuing the warrant. The affidavit shall name or describe the per- son to be searched or particularly describe the place to be searched, name or describe the property to be searched for and seized, state substantially the offense in relation thereto, and state the factual basis for the affiant’s belief that such property is there located. If the judge is satis- fied that probable cause for the search exists, he shall issue a warrant identifying the property and naming or describing the person or place to be searched. The find- ing of probable cause may be based upon hearsay in whole or in part, provided there is a substantial basis for believ- ing the source of the hearsay to be credible and for be- lieving that there is a factual basis for the information furnished. Before ruling on a request for a warrant, the judge may require the affiant to appear personally, and may examine under oath the affiant and any witnesses he may produce. Such testimony shall be admissible at a hearing on a motion to suppress if taken down by a court reporter or recording equipment, transcribed and made part of the affidavit. The warrant shall be directed to a law enforcement officer. It shall command the officer to search, within three days, the person or place named for the property specified ... .” Ohio Revised Code, Section 2945.83: “No motion for a new trial shall be granted or verdict set aside, nor shall any judgment of conviction be reversed in any court because of: (A) An inaccuracy or imperfection in the indictment, information, or warrant, provided that the charge is suffi- cient to fairly and reasonably inform the accused of the nature and cause of the accusation against him; (B) A variance between the allegations and the proof thereof unless the accused is misled or prejudiced thereby; (C) The admission or rejection of any evidence of- fered against or for the accused unless it affirmatively appears on the record that the accused was or may have been prejudiced thereby; (D) A misdirection of the jury unless the accused was or may have been prejudiced thereby; (E) Any other cause unless it appears affirmatively from the record that the accused was prejudiced thereby or was prevented from having a fair trial.” Ohio Revised Code, Section 4549.04 [Repealed 3/20/72] “No person shall commit any of the following acts: (A) Steal any motor vehicle; (B) Purposely take, drive, or operate any motor ve- hicle without the consent of its owner; 7 (C) Buy or conceal any motor vehicle that has been stolen, knowing it to have been stolen; (D) Knowingly conceal a person who has stolen any motor vehicle.” Ohio Revised Code, Section 4549.04 [Effective 3/20/72] „(A) No person shall steal any motor vehicle. (B) No person shall purposely take, operate, or keep any motor vehicle without the consent of its owner, and either remove it from this state, or keep possession of it for more than forty-eight hours. (C) No person shall, with intent to defraud, hire a motor vehicle or operate or keep a motor vehicle which has been hired. It is prima-facie evidence of an intent to defraud if the offender does any of the following: (1) Hires the motor vehicle by means of any false representation or by means of the unlawful use of a credit card; (2) Hires the motor vehicle knowing he is without sufficient means to pay the hire; (3) Absconds without paying the hire for the motor vehicle; (4) Knowingly fails to pay the hire for the motor vehicle on its return, in the absence of a prior agreement for extended credit, without reasonable excuse for such failure; (5) Knowingly fails to return the motor vehicle as required by the contract of hire, without reasonable excuse for such failure. (D) No person shall purposely take, operate, or keep any motor vehicle without the consent of its owner. (E) No person shall receive, buy, operate, conceal, or dispose of a motor vehicle that was obtained by means of an auto theft offense, knowing or having reasonable cause to believe it to have been so obtained.” Ohio Revised Code, Section 4549.07 “No person shall knowingly buy, sell, receive, dispose of, conceal, or have in his possession any motor vehicle, as defined in section 4501.01 of the Revised Code, from which the manufacturer’s serial number or any other dis- tinguishing number or identification mark has been re- moved, defaced, covered, or destroyed, for the purpose of concealing or destroying the identity of the said motor vehicle.” STATEMENT OF THE CASE’ Charles Simpson, the petitioner herein, variously re- ferred to throughout this Petition as “Simpson”, “the ac- cused”, or the “petitioner”, was found “guilty as charged by the Judge” of two (2) counts involving the alleged concealment, operation and purchase of various “stolen” cars. He was also convicted on a charge that he altered the numbers on a motor vehicle. The appeal to the Court of Appeals for Cuyahoga County was from the judgment 1. Whenever reference is made in this Petition to the Tran- antes of Teens „ prefix ‘ . — — — entered on these verdicts, as well as the trial court’s failure to grant either a judgment of acquittal or a new trial. That Court affirmed the judgment of the trial court and also denied petitioner’s Motion for Rehearing (See Appen- dix D“, infra, p. Al9). The Supreme Court of Ohio denied further appellate review. By this Petition, it is contended that this cause involves serious and substantial constitutional questions. Because of the involved nature of this case, and the vastness of this Record, this Petition will develop the facts in several divisions. These will include those labeled Pre- trial Motions, The Trial, Motions Made During Trial, and The Instructions. A. Pre-trial Motions The charges against Simpson and his wife were con- veniently spread over two cases numbered 6859 and 6860. The Court consolidated these for trial (R 213) after grant- ing a separate trial for Mrs. Simpson (R 215). The Court first considered the Motion to Suppress filed in these cases. The contentions made therein were te the effect that the original warrant, for the Volkswagen (Appendix F“ infra, p. A22), was issued without probable cause, and that the subsequent information acquired incident to this illegal search was then used as the prime ingredient in the affidavit utilized as the basis for the subsequent war- rant for the Cadillac (Appendix G“, infra, p. A25). The evidence bearing on the essential issues included the testimony of William McComb, the affiant. Distilled, his evidence was that he was connected with the Automo- bile Theft Unit of the Cleveland Police Department, and 10 that on October 10, 1972, he met with an informant, “who related that he was aware of a theft ring which was operating in . Cleveland. ...” (R 12 [Emphasis added].) Supposedly this informant told him the names of the people involved and that they, “were proficient in the altering of vehicle identification numbers” (R 12). Of specific importance here, as will be developed later, McComb stated: “He [the informer] told us that Mr. Simpson was in possession of a 1972 Cadillac Eldorado, that was a stolen vehicle. He told us that the vehicle had been titled to Mr. Simpson by way of a salvage title obtained frorn a place called Moyer’s Auto Wrecking in Crestline, Ohio. He told us that the title that was for this car was for a 71 model, although the car ac- tually was a 72. And he told us that the people that had done the work on the car, the altering the numbers of that, had altered the appearance of the car to make it to appear to be a 71 in order to match the title. He further said that Mr. Simpson was not in pos- session of a Porsche automobile.. He said that this Porsche automobile had been stolen from Euclid, Ohio; that when it was stolen it was a Porsche model 911- T, like in Tom, and he said the title of this car had been obtained from Moyer’s Auto Wrecking for a model 911-E. He said the identifying marks on this car had been altered to make it appear to be a 911-E to cor- respond with the title.” (R 12-13). 11 McComb added further that this informant also told him during this October 10, 1972, conversation that: “. . . Mr. Simpson was in possession of a Volkswagen automobile which was stolen. He described it as a yellow Volkswagen with black interior. He told us that this car had been stolen on Euclid Avenue in Cleveland, Ohio, and again that the title for this car that was in Mr. Simpson’s name or possession, it was actually titled to Nancy Simpson, had been obtained from Moyer’s Auto Wrecking in Crestline... . [and that] the informer related that Mr. Simpson had been in possession of a number of other cars, in particular he mentioned a 69 Corvette, which he believed that Mr. Simpson had resold. He related that Mr. Simpson at one time owned a Camaro automobile which was a stolen automobile. He [also] related that Mr. Simp- son’s mother was in possession of a Chevrolet sta- tionwagon, but basically, that is the story that he reported to us.” (R 14-15.) Based on this information, and obvious misinformation, McComb says he made various checks with certain insur- ance companies, title clerks, and individuals. He also checked with a Charles Allspaugh, Agent in Charge of the National Auto Theft Bureau in Chicago, Illinois (R 18). Armed with these “facts” (if that is what they were), he consulted with our County Prosecutor and then with Judge Matia (R 54). According to McComb, they gave a lot of information to the Judge. At least, we have his testimony this occurred. And, we also have his unveri- fied statement that he was sworn in before talking to Judge Matia. Be all that as it may, and we do seriously doubt this in fact occurred, the facts show that no court 12 reporter was present to record this asserted event, nor was there any other type of recording device on hand to verify this occurred as is required by Rule 41(C), Ohio Rules of Criminal Procedure R 55-56). Based on this specific disclosure, counsel moved the Court to “exclude all of the testimony from its consider- ation insofar as ruling on the motion . . . [which related] to conversations that he [McComb] had with Judge Matia, in which he . . . [alleged] a considerable amount of in- formation, which obviously . . . [was] not on the affidavits” (R 58). Although the Court reserved its ruling on this Motion, it is significant that the Court later decided that Rule 41, Ohio Rules of Criminal Procedure, “does not apply to . . search warrants .. . obtained in October, 1972,” and consequently, “the motion to exclude the testimony relative to the conversations with the magistrate is over- ruled” (R 206-207). The unavoidable effect of this is that the Court thus made it clear it was giving consider- able weight to these asserted conversations. This, of course, made the credibility of the affiant a factor of increased proportions. Here, the critical ruling of the trial judge was that: “The facts in this case as adduced from the witness stand was that the detective, McComb, had discussions with the County Prosecutor and the original affidavit and search warrant was drafted and that they both proceeded to see Judge Matia, who was the issuing magistrate. The Judge placed the detective under oath. There was searching inquiry as to the matter and the Judge found, as a matter of fact, probable cause existed. 13 The second search warrant was obtained later that day and the same basic information was recited to them, that is the whole story, and that had been made available to Judge Matia, in addition to the affidavit and the search warrant for the Cadillac was before him. He now had the additional information that the informant was reliable and on both occasions the Judge found that probable cause existed.” (R 208- 209.) Significant here, the cross examination of the affiant shows the flat admission that his “affidavit does not set forth any of the underlying circumstances from which .. . [his] informant concluded that the Cadillac was stolen“ (R 60). Additional testimony on this reliability feature shows some almost incredible responses. Here, reference is being made to the affiant’s testimonial analysis of various seg- ments of his affidavit: Q. The affiant says this informant proved reliable by a subsequent check of records of the Clerk’s office, which records revealed that one Nancy L. Simpson, the wife of Charles A. Simpson existed as the owner of a two-door sedan, 1970 Volkswagen, purchased Sep- tember 14th from Moyer’s Used Cars. Right? A. Right. Q. Now, you knew that you had to not only set forth im your affidavit some of the underlying basis for the—you had to set forth some of the rea- sons which led the informant to conclude the car was stolen. You knew you also had to set forth in your affidavit some of the underlying reasons for which you concluded that the informant was reliable, you knew that, didn’t you? A. Right. 14 Q. So that the only thing that is set forth in your affidavit to bolster the reliability of this informa- tion, is your statement that he proved to be reliable because you checked the records and found out that there was a Volkswagen purchased from Moyer’s by Nancy Simpson on September the 14th, isn’t that right? A. That is not right. Q. Well— A. You left out about a half of the page of the affidavit, by saying that. Q. What did I leave out? A. Well, the affidavit goes on to say that further investigation was conducted and that it reveals a number of other things. It says, ‘All this investigation dove-tailed with what the in- formant said.” ; Q. That is not what you said in your affidavit? A. If yours is the same as mine, it is. Q. That appears to be the same, doesn’t it? A. Yes. Q. It says, right here, ‘The affiant says that this informant proved reliable by a subsequent check of the records of the Clerk’s office, which revealed that Nancy Simpson has a Volkswagen that was pur- chased on September the 14th from Moyer’s.’ That is what you say, isn’t that right? A. Yes. Q. That is what I thought you said. Now, you also told us that this informant had told you that Simpson purchased the Cadillac from Moyer’s? A. That’s right. Q. But you checked on that and found out that that was not true, is that right? A. Yes, I did. Q. But you didn’t put that in the affidavit? A. We put in the affidavit what we did find out. 2. This reference in the affidavit, of course, to even a pass- ing student of this facet of the law, simply has to be regarded as the affiant’s conclusion and as such enti to no weight. 15 Q. But in the affidavit that relates to the Cadillac seizure, you put in this affidavit, didn’t you, that the informant had told you that Simpson had purchased a car on February the 10th from Pearson Motor Sales, didn’t you? A. That the informant said that, no, that is not what it says. It says that the information from the informant, that the 71 Eldorado, black Cadillac was driven and titled to Charles Simpson, a stolen automobile, is what it says. Q. But why didn’t you put in there the infor- mant had told you that the 1971 Eldorado Cadillac convertible had been purchased from Moyer’s and you had checked that and it didn’t come from Moyer’s, why didn’t you put that in there? A. What purpose would that have served? Q. It would have shown that the informant wasn’t reliable. A. I don’t believe so Q. All right. If the informant tells you that the car came from one city and gives you the name of a dealer there and you find out it came from a differ- ent city and county and from a different dealer, are you telling the Court that proves that informant is reliable? A. Informant— Q. Does that prove he is reliable, Mr. McComb? A. It doesn’t prove that he is reliable. Q. It tends to prove that he is not reliable, doesn’t it? A. It might be construed that way. Q. But you were not interested in showing that he was not reliable, you were interested in showing that he was reliable so it was for that reason that you didn’t put it in the affidavit? A. Quite naturally. Q. Right. You were interested in deceiving the Court. A. Not at all. That is why we outlined other information in the affidavit. 16 Q. But you concealed proof that the informant was unreliable, didn’t you? A. No, I did not. Q. The informant also told you that Mr. Simp- son’s mother was driving a stolen car? You docu- mented that for us in your testimony, didn’t you? A. No. I don’t believe that I said that at all. . Are you positive of that? A. My under- standing from— Q. Not your understanding. I am talking about what you testified to. A. What I testified to, the informant said that his mother was driving a Chevro- let stationwagon— Q. That was stolen? A. I don't think I said it was stolen. I certainly didn’t intend to, if I did. Q. What did you say? A. Let’s ask the court reporter. Q. I'm asking you. A. I outlined what the in- formant said and one of the things he said, Mr. Simp- son’s mother has a Chevy stationwagon. Q. Does that prove him to be reliable if his mother has a Chevrolet stationwagon? A. Yes. Q. If the person gives you something that is com- mon knowledge that is proof that he is reliable? A. Common knowledge to who? Q. Let me ask you this: Isn't it a fact, Mr. Me- Comb,—do you deny—you are under oath—that Ty- rone Battle told you in October, 1972, that Simpson was driving a stolen car, Cadillac, that his wife was driving a stolen Volkswagen, that his mother was driving a stolen—what kind of a car was that? Chev- rolet. MR. LIPOLD: Just driving a stationwagon. Q. Driving a stolen Chevrolet stationwagon that was titled to her— MR. LIPOLD: Objection. ein * —— — — — 17 Q. Do you deny that Battle was not the one that told you this? A. Yes, I deny that. Q. Affirmatively? (R 61-66 [Emphasis added]. The latter portion of the above quoted testimony is significant because while the affiant denied his previous testimony had been that the informant told him Simpson’s mother was driving a stolen Chevy stationwagon, the facts show this specific remark was in the written statement the affiant indicated was a summary of the information given him (R 114). Also relevant at this juncture is testimony by this witness that Tyrone Battle, the person who testified dur- ing the trial that he stole the Cadillac in question, was not his informant (in fact he affirmatively denied that Battle was his informant [R 66]), he could only testify in response to the question how did the informant know the Cadillac was stolen by stating, “I cannot disclose the informant’s name or how we obtained this knowledge without disclosing his name, because the informant fears for his safety” (R 68). Then, too, the affidavit stated the Cadillac had been purchased from a Pearson Motor Sales and that it had originally been “a metallic bronze color” (R 68). Fur- ther, that the car Simpson was driving appeared to be an original black paint job (R 68). However, the affiant ad- mitted that they only talked to Pearson to determine the kind of car he had sold Simpson after the warrant had been issued (R 74), and that he did not determine, prior to the issuance of the warrant, from Pearson the condi- tion the car was in when it was sold to Simpson (R 81). He did not know whether what had been sold was “a junk heap” or a “repaired car” (R 82). 18 With reference to the warrant for the seizure of the Volkswagen (as had been done with the Cadillac), this officer was asked to show where it appeared, in his affida- vit, the source of the informant’s knowledge that the car was stolen (R 98). Here, again, he admitted it was not set forth in the affidavit. Also, he did not check, accord- ing to this testimony, to see if the car Mr. Simpson was driving was a stolen car. He admitted that if Battle had told him her car was stolen and it in fact was not this would affect his credibility (R 113). But, of course, McComb had to make this admission, since he says it was afterwards determined her car had in fact been pur- chased legitimately (R 113). This then brings us to perhaps the most crucial aspects of our contention with reference to (1) the affiant’s cred- ibility (essential aspects of which were perjurious); (2) the various invalid arguments made by the prosecutor; and (3) certain indefensible rulings made by the Court. First, the Record shows McComb also credited his informant with having told him Simpson’s wife was driv- ing a car that had been stolen in Cleveland in the early part of 1971 (R 108), that he established Simpson’s wife was driving a Volkswagen that had been purchased from Moyer’s, and he learned from Shirley Patton the condition of the car when she told it to Moyer’s. Further, that the National Bureau told him the only Volkswagen stolen in Cleveland that had not been recovered was yellow with a black interior and this made his informer reliable (R 108-109). With reference to the Cadillac (for which the war- rant was issued), the informant told McComb that Simpson was driving a stolen Cadillac (the source of the informant’s conclusion was unstated), which had been purchased from 19 Moyer’s. He then traced this car back to its origination and learned it was originally sold as “bronze” and the one Simpson had was black, which he concluded was an original paint job (R 110). Also of significance here is the fact that the affiant did not relate either in his affidavit or in his invisible testimony to Judge Matia that the informant was wrong in his statement that the car had been purchased from Moyer’s (R 110). And he did not further check, at least this is what he said, to learn Simpson’s mother’s car had been purchased from Luby Chevrolet (R 113). Any question as to whether these omissions were will- ful, as we contend, is resolved by the segment of the Record quoted above (—that is, R 61-66). With the above salient facets of McComb’s testimony in mind, he was then asked to identify a written document (Motion Exhibits C-1 and C-2). His testimony was that it was “a typewritten summary of the information that was given to... [him] prior to the time . [they] obtained the search warrants” (R 114). He denied it was given to him by Battle (ibid.). In any event, this “written summary” stated: “Battle said that he was familiar with an auto theft ring that was operating in Cleveland, Ohio, and fur- nished the following information in this regard: The operation of one Sam, a male Negro, age 26, who has a garage in the immediate vicinity of 110th Street and Superior in Cleveland, in which Sam alters the confidential numbers on stolen vehicles. Another individual in Cleveland who has also pur- chased a wrecking yard in the same area where Sam works on his cars, is one Kaiser Houston. Kaiser 20 usually works on trucks and Porsches, alters the num- bers, and sells them * * * * * Both Sam and Kaiser have worked out methods for obtaining papers for the vehicles, which they resell or upon which they change the numbers. Kaiser gets the majority of his cars from Pennsylvania. Sam gets most of his cars from Detroit. Sam has previously or maybe currently been employed by Fisher Body plant, located on Coit Road, Cleveland. Sam is an excellent mechanic in changing and altering numbers on vehicles, as the police department has examined a number of vehicles after Sam has worked on them, and have been unable to identify them as stolen cars. The numbering stamps that Sam uses to put a serial number on a vehicle are not the same types of num- bers that are put on at the factory, but it would take an expert from the factory to determine the dif- ferences. As an example some of the vehicles that Sam has worked on have been purchased by the City pros- ecutor, Charles Simpson, he is believed to have the following stolen vehicles in his possession, upon which the numbers have been altered: - The 1972 black Cadillac, titled in 1971. Originally, this vehicle came from Detroit, but was stolen from the Somerset Inn, located on Shaker Boulevard. The car was a rental car from Detroit. The words E- dorado, which are on the front of the 1972 Cadillacs was removed and the holes were filled in and then spot painted. Kaiser had the vehicle first, having obtained it from ‘Shorty’ [Moyer’s] or ‘Crestline’. 21 A 1971 or 1972 Porsche which Simpson keeps at his house was repainted a burnt orange color. This vehicle is titled possibly as a 1971. Sam did the work on it and turned it into a Model 911-E, however, when it was stolen, it was a 911-T. It was stolen from some apartments on Euclid Boulevard in the suburbs. A 1970 Volkswagen sedan* which Simpson’s wife drives, which usually sits outside of Simpson’s house. It was stolen by one Campbell, who gave it to Kaiser, who sold it to Charlie Simpson. Simp- son’s mother drives a 1969 Chevrolet station wagon, which is also stolen [cf. R 65-66], and which was worked on by Sam. This vehicle is kept in some garages in the rear door to Simpson’s home, which Simpson rents from his neighbors near 110th and Su- perior. It is actually between 107th and 110th and Superior. To enter the garage from the rear, one must take the alley off of 110th Street. He originally had a garage on 110th Street near Superior which had a sign on the garage, which was possibly Color Specialities. Simpson also has a 1970 or 1971 Corvette, which vehicle was stolen in Cleveland after it had been brought there by some people from Canada. There are no papers on the vehicle, as it is used to race at Thompson Raceway, Thompson, Ohio, and the 1972 Dragway, Norwalk, Ohio. Kaiser moves his stolen property fast. His lot is at 130th near Surplus City. It is the lot across the street from the Town Gas Service Station, just 3. McComb says he told Judge Matia that his informant told him this car was stolen on Euclid Avenue (R 14). To the extent then this may have influenced the issuance of the warrant, it must be so credited. 22 over the bridge, going east. Kaiser has a flat bed truck which was originally a pick-up truck. He simply cut the pick-up bed off and put on a flat bed. One time Kaiser sold his brother a stolen car, and his brother was arrested for it. Kaiser had to return the money to his brother. Sam, in working on the vehicles, has a heavy duty hoist where he lifts the bodies off the frames. Sam does the work on the cars by himself, and will not allo anyone in the garage when he is working on a car. Sam has the reputation of being very cau- tious, and has not been arrested in Cleveland. Sam refused to do any cars for several months after a car ring was broken up that operated at 1llth and Superior. This place was where the police found about 500 license plates in barrels, which belonged to vehicles that had been worked on. When Sam works on a car he changes the trans- mission numbers, the window numbers and the en- gine numbers along with the visible numbers. Attorney Josselson is Charlie Simpson’s attorney. Josselson has a 1971 or 1972 Grandville, white top, maroon body, which came from somewhere in Michi- gan, and is reportedly stolen. a — Battle said that he was only allowed to be present near Sam’s garage on one occasion, when Sam was actually working on a vehicle, which he believed was a white Cadillac.” (R 114-119 [Emphasis added]). Thus, the affiant’s positive admission that this docu- ment was a summary of the information supposedly given him prior to the issuance of the warrants (R 114), a posi- tion reaffirmed by him during his re-cross examination 23 (R 127-128), is most significant. Also significant is Mc- Comb’s categorical testimony (although it was apparent Battle was being quoted as having made the statements therein) that he got the document from another informant who could have been a police officer (R 128). As to this, there is his further evidence that if his informant— that is, the one that gave him the document—was a police officer then when he said that person was reliable he was talking about a fellow officer (R 128). Returning, then, to the stated basis for the Court’s ruling denying our Motion to Suppress, by the Court’s own reckoning, he regarded as a factor on the question of the informer’s credibility and the reliability of his in- formation, “the officer’s personal knowledge of the in- former.” (R 210 [Emphasis added].) Stated another way, he found that the policeman-informaat who gave McComb the obviously secondhand information contained in the ‘summary was reliable. The Court also stated he regarded as significant the fact that the affiant worked for the Auto Theft Unit and was able to make an informed assessment. Further, that the affiant’s personal belief as to the truthfulness of the informant’s information was relevant. More simply put, McComb believed what a fellow police officer told him, because obviously this officer would not have told him (McComb) if he (the informant-officer) did not believe it to have been the truth. Then the Court really taxes our credulity by adding that the informant’s information was fresh and had been personally corroborated (ibid.). As to the freshness point, there is no way the Court could have possibly determined when Battle, or anyone else, made these statements to the informant. Hence, to conclude he had done so on 24 October 10, the day the affiant says he talked to his in- formant, is to say the record supports this conclusion be- cause the Judge says so. This same assailment applies to the Court’s conclusion that the informant had been found reliable in his recent information, and to the inaccurate statement that the of- ficer personally corroborated “the informant’s informa- tion.” (ibid.). : As to the corroboration point, the Record is clear. It is simply not a fact that the officer corroborated “the in- formant’s information.” This is so because some of the informant’s so-called information was shown to be false. The officer even conceded (although we contend he lied as to Simpson’s mother’s car) he did not check certain crucial segments of the information supposedly given him. (As an aside one must wonder why the Court would gen- eralize on a point as crucial as this. While we concede the officer’s testimony could support a statement to the effect that he corroborated some, rather than all, of the informa- tion. supposedly given him, the distinction between these two views is rather substantial.) This leaves the “freshness of the [alleged] informant’s information” a factor (ibid.). Here again, the fact that the Court was reasoning on an ad hoc basis becomes most clear. For surely it has to be the Court was trying to justify the conclusion he wanted to reach to even mention this point. This idea is especially compelling when one realizes that even if the informant were a person other than Tyrone Battle, it was apparent the “informant” was reporting what Battle told him. Viewed in this sense, any determination as to the “freshness” of the information has to turn not on the date information was given to the affiant, but rather on the date the information was given to the informer. 25 The final point urged by the Court, in denying the mo- tion, was the fact that the reputation of the suspect can be regarded as a factor (ibid.), which the Court coupled with the suggestion such evidence was in this record. Since there was no evidence bearing on the petitioner's reputation presented either to the Court, to the issuing magistrate, or stated in affidavits, one can only hope the Court did not expose a predilection on its part to ratify the actions of this officer regardless of how gross. Other evidence considered by the Court on the motion included that rendered by Detective Thomas Gaul. His testimony was that he had seen Simpson, who was an Assistant Police Prosecutor, driving the Cadillac and had seen it several times parked around the police station (R 132). He saw nothing unusual about the paint job done on the car. In short, it was his opinion the car had not been repainted, although on cross examination he admitted he was not an expert (R 136). It was then, and is now our contention that the origi- nal Motion to Suppress should have been granted on the basis of the factual patterns . the Record at the close of the evidence heard directly on the motion. However, even assuming arguendo the Court’s original rulings were cor- rect, given certain crucial testimony at the trial, the Court’s failure to grant this motion when it was renewed both at the close of the State’s case (R 2261), and at the close of all the evidence (R 2656) is a further significant factor in this appeal. The additional relevant evidence to which reference is being made involves the testimony by Tyrone Battle and 26 McComb. Here, the Record is most clear. Battle denied that he “ever furnished any information . . before No- vember of 1972, to the effect that. . [he was] familiar with a vehicle theft ring operating in Cleveland” (R 1187). It is, of course, a fact of no mean significance that Battle was in California from March or April Ist of 1972, until November, 1972 (R 752-753). The information supposedly given by the informant was on October 10, 1972 (R12). In line with this, the Record shows further Battle’s specific denial that he discussed any of the cars particularized in the summary of the information supposedly supplied by the informant. These were, “a Corvette, a Volkswagen, and a Cadillac.” Nor did he discuss “a Porsche, or a sta- tion wagon, Chevy station wagon” (R 1244). More specifically, Battle’s unequivocal testimony was as follows: Q. They didn’t discuss none of those cars with you? A. No. Q. You never discussed any of those cars with anybody. A. Not in California. Q. Meaning you did not discuss them with any- body before October 27, 1972, right? A. No. Before January 6. Q. 73 A. Right. : Q. That follows then, you hadn’t discussed it then before October 27th, 1972? A. I hadn't. Q. Had not, right? A. Yes (R 1244-1245). Still another aspect of this problem involves the Court’s refusal to permit the defense to question Battle relative to the contents of the purported summary which specifically attributed to Battle certain specific informa- tion, and inferentially exposed him to be the source of all the so-called information in the summary. 27 As to this, it was the Court’s ill-advised position that because Battle denied having seen the statement, and the State took the position they did not know who had given the summary to Detective McComb, this made their ob- jection valid (R 1189-1190). On the other hand, the de- fense took the valid position that the defense had an ab- solute right to show that the State’s chief witness made statements out of court that were inconsistent with his in court testimony (R 1190-1194). In any event, even though the Court made the wrong ruling, certainly one that cannot be defended in either law, logic or common sense, one fact did emerge from his re- marks. The Court recognized the “summary” as a “pur- ported synopsis of what Mr. Battle supposedly had said” (R 1193). Given this expressed conviction by the Court, the prosecutor’s analysis of this point will at least be inter- esting, as he will be required to argue those flaws in Simpson’s conviction are harmless errors—a position that is thoroughly at odds with the adamancy of his objections at the trial. Again, during the trial on the merits, McComb (the affiant) repeated that Defense Exhibits R-1 and R-2 were a summary, or (using the Court’s term [R 1193]) a “synop- sis” of the information supposedly given him by his in- formant on October 10, 1972 (R 2048). Of course, the Record here shows that the Court af- firmatively refused to require the disclosure of the identity of the person who supposedly gave this document to Mc- Comb (R 2049-2050). While the Court’s refusal to require disclosure on the suppression question was wrong, the fact that the Court had previously allowed this witness to tes- tify, over defense objections, as to his asserted conversa- 28 tion with this undisclosed informant (R 1916-1921), com- pounded the error by also affronting the confrontation clause, and as such camnot be as easily glossed over as the Court and the prosecutor were willing to do. This course of conduct was strenuously opposed by the defense in quest of disclosure (R 2051-2059). More specifically, it was argued to the Court, at this juncture: “We have the point being emphasized by Mr. McComb today that this statement was a summary of the infor- mation that was given to him on October tenth. Now, all of this, Your Honor, I want the Court to under- stand, bears on the propriety of the issuance of the search warrant. It bears on the propriety of the Court’s order sustaining the issuance of the search warrant and the seizure of the Cadillac and Volks- wagen.” (R 2057-2058). Here, again, in denying the request for disclosure the Record simply shows the Court’s penchant for assuming the prosecutor was the appropriate lawgiver on the seri- ous questions involved in this case. For, it was at this point the Court allowed the Record to perpetuate these remarks: J would say [the defense request for disclosure was being denied] . because of the argument of Mr. Lipold” (R 2017). B. The Trial The facts in this case show the Volkswagen, charged in Count 1 as having been illegally concealed, operated, purchased or received by Simpson and his wife, had been purchased by Mrs. Simpson from Kaiser Houston. Mrs. Simpson had talked to a neighbor, Donald Rutger, and in the course of that conversation she mentioned wanting to buy a Volkswagen. Donald told her he had a friend who could sell her one—this turned out to be Kaiser Houston (R 2270-2271). She subsequently bought a Volkswagen from Houston on September 8, 1971, paying for it from money she had saved (she was a nurse) and partly from money she borrowed from her mother-in-law. She re- ceived a receipt (R 2272). It should be noted too that her husband, Charles Simpson, not only had not participated in this purchase, he had opposed the purchase because he thought Volkswagens were unsafe (R 2272-2273). The title shows the vehicle was transferred from Moyer’s. As was shown in many instances by the State, the title often jumped from owner to salvage yard without intermediate ownership in the insurance company. Likewise, the evi- dence supports the jump from the salvage yard to Mrs. Simpson without title in Kaiser Houston who had a body shop and repaired salvaged automobiles. The original owner had been Shirley (Patton) Hud- son who bought the 1970 Volkswagen new. Subsequently the car was wrecked in an accident and sold to Moyer’s. It had a white exterior with red interior. The car as pur- chased by Nancy Simpson had been repaired and repainted yellow (R 2285). An Allan Clapp also owned a 1970 yellow Volkswagen (R 1385) which had been stolen August 10, 1971 (R 1389- 1390). Simpson’s contact with this car was limited to his hav- ing operated it in the same fashion any husband would operate his wife’s car—that is, occasionally. The Cadillac, which was later titled to Simpson, had a rather involved history—regardless of whose version 30 one accepts. According to the State, the Cadillac had been stolen by Battle (R 746), from Mark Hartley, while he was a guest at the Somerset Inn. Their evidence was that it was delivered to Kaiser and then to Simpson. Somewhere along the line the numbers were changed— both by substitution of frame sections and by the substi- tution of the numbers belonging to the salvaged car pur- chased from Pearson Motor Sales. This latter car had been totalled in a wreck in Cincinnati, Ohio. At least, the owners regarded it as a total loss because it was a used past model (R 469). Tyrone Battle testified that after stealing the car he sent it by his accomplice to Kaiser Houston (R 748-749). The next day they picked up the money for this transac- tion from Simpson (R 750). In March or April, 1972, he left for California (R 772) where he stayed until November, 1972 (R 753). He was arrested in Cleveland in December, 1972 (R 754). Next, he admitted meeting McComb for the very first time in December, 1972 (R 754). On cross exainination Battle implied he was rather proud of the fact (R 776) that he was a notorious car thief. His total exceeded a mere 300 or 400 cars (R 759). Although he sold all these cars he could not tell us the names of any of the people to whom they were sold (R. 759). In any event, as the Court saw it, he was not required to reveal any of their names and addresses (R 760-761). Also, and this is important, by his own admission, Battle was a liar (R 766), and he had a history of having lied to the police (R 766). As he put it, he will lie when he is “hemmed up” (R 766), and that “it’s not a planned thing. It is just something that happens right then” (R 767). — 31 Also, Battle admitted he will deceive the authori- ties in order to avoid prosecution” (R 768). And he con- ceded that although he had stolen possibly 800 or 900 cars he had only been caught for stealing 3 cars. It was for these thefts that he was sentenced to the workhouse (R 771-774) Battle denied that what in fact had happened was that his brother-in-law stole the Cadillac from the Somerset Inn, sold it to Kaiser Houston, and that he learned about it and simply claimed credit and implicated Simpson in order to improve his own predicament (R 788-789). At least this much is certain, while Battle misdescribed the car as being triple black—that is, black top, black body and black upholstery (R 782-783), the car stolen from Hartley had red upholstery (R 559). Simpson’s version was that he purchased the car through Kaiser Houston from Pearson Auto Sales. Pear- son, in turn, had purchased it from the salvage dealer who obtained it following the Cincinnati wreck. He regarded the car as repairable (R 527-528). Pearson also testified he sold the car to several men from Cleveland for $5,500, which included sufficient parts to rebuild the car in its entirety (R 534). Simpson’s evidence further showed a relationship be- tween the sale of his 1969 Cadillac to Kaiser and the trans- fer of the 1971 Cadillac Eldorado to him (R 2417-2421). The third count of the indictment involves the alleged altering of identification numbers on a Camaro. The his- tory of this car is as follows: A Leonard Hotaling bought a 1969 Camaro (yellow exterior) which he wrecked in an automobile collision. The car was then sold to a salvage dealer—R & R Auto Sales. This car was subsequently sold to the petitioner, Charles Simpson. He had the car 32 repaired but chose to resell it when his wife became preg- nant and they needed a larger car. He sold it to a Mary Ferguson. The car at this time was black with silver stripes as it had been totally rebuilt and repainted. The State alleged that this was a stolen vehicle. C. Motions Made During Trial In addition to the “Motion for a Mistrial” (based in- ter alia on the abuse to Simpson’s right of confrontation), the “Motion to Suppress”, which was renewed at various points throughout the case (R 2261, 2657), the “Motion for Discharge”, and for the “Disclosure of the Identity of the Alleged Informant”; the defense moved (first at the close of the State’s case [R 2261], and renewed at the close of all the evidence [R 2656], and again post-verdict) for a Judgment of Acquittal. Still another motion sought to require the elimination of the disjunctive features of the indictment, and for the elimination of those alternatively charged crimes for which there was insufficient evidence to support a conviction (R 2656). Additionally, there were the defense motions and ob- jections related to the admission of so-called “similar acts” testimony. The facts relevant to these motions will, at least to some extent, be developed during the course of the argument related thereto. The denial of all these motions (R 2672), was likewise assigned as errors. D. The Instructions Prior to the submission of this case to the jury the defense submitted various written instructions, which were coupled with the request that they be given to the jury 33 before argument. Those rejected by the Court included the last sentence of No. 3, a segment of No. 4, No. 5, and No. 7 (R 2686-2687). In addition to the above formal request, the defense made the further specific request with reference to the various charges in this case “that an included offense on each of those charges is that described in Section 4545.07, motor vehicle with concealed identity” (R 2688). It was argued at the time that: “4549.07 is an included offense in the charges brought under 4549.04; particularly 4549.04(E) ... insofar as the concealed aspect is concerned. [Here] the statute uses the same language, ‘buy, sell, receive, dis- pose of, or conceal, or have in his possession a motor vehicle.’ I think the clear intent of the legislature was to make that particular charge under .07 an included offense under 4549.04(E). I would [therefore] re- quest the jury be instructed that such is the case” (R 2688-2689) . The Court refused to give this instruction with refer- ence to Count 3. Additionally, the defense requested the Court to spe- cifically limit the scope of the phrase “on or about” as recited in the indictment (R 2693). Here, it was contended that “on or about” should be defined as being reasonably close to the date indicated (ibid.). Subsequent to the charge the objection was made to charging the jury disjunctively for the reasons that such language does not emphasize that all must agree as to a specific alternative (R 2753). Also, an objection was made to the Court’s use of the word “disguise” as an aspect of conceal. Also, the defense objected to the following seg- ment of the Court’s charge: 34 “Where a motor vehicle is sold by one not an automo- _ bile dealer to another, title to such motor vehicle can pass without the formal issuance of a new certificate of title, by means of the duly executed assignment of title, and, as between such persons, notwithstanding the failure to secure a new certificate of title, the own- ership of such vehicle passes to the vendee” (R 2715). ARGUMENTS RELIED ON FOR ALLOWANCE OF WRIT I. An Affidavit for a Search Warrant Which Makes No Effort to Show the Source of an Undisclosed Informant’s Conclusions, or to Demonstrate That He Is Credible or His Information Otherwise Re- liable, Cannot Support the Issuance of a Search Warrant for the Seizure of a Motor Vehicle As Stolen Property. (A) In this case, the affidavit for the search warrant for the Volkswagen, the first warrant issued, contains the conclusory assertion that (1) the affiant had “received information from an informant to the effect that a Volks- wagen automobile, 1970, was stolen in Cleveland, Ohio, in the early part of August, 1971, that in the month of September, 1971, a Charles Simpson purchased a wrecked 1970 Volkswagen from Moyer’s Used Car and that he, Simpson, is using the title relating to the wrecked Volks- wagen for the . . . stolen Volkswagen.” Next, (2) the affiant concluded, for the Court, that “this informant proved reliable by a subsequent check of 35 the Clerk’s office which records reveal that one Nancy Simpson, the wife of Charles A. Simpson, is listed as the owner of a... 1970 Volkswagen purchased September 14, 1971, from Moyer’s Used Cars.” Further, (3) the affiant concluded the Volkswagen purchased from Moyer’s “was a total wreck to such a de- gree that it was virtually impossible to repair,’ and that his investigation revealed a yellow Volkswagen had been stolen on August 10, 1971, from one Allan Clapp. It was then concluded, for the Court, that “the affiant has reason to believe the Volkswagen . .. titled in the name of Nancy Simpson and driven by Charles Simpson . [was the stolen] automobile of Allan Clapp.” For starters, it must be obvious from a mere cursory reading of the affidavit that the affiant in no way even sought to satisfy the basis of knowledge prong of the test established (in Aguilar v. Texas, 378 US. 108 [1964]) for measuring hearsay information in a probable cause set- ting. This pry required the affiant to set forth some of the underlying circumstances” which led his informant to conclude in substance that, “Charles Simpson had pur- chased a wrecked 1970 Volkswagen from Moyer’s and that he, Simpson, . was using the title to the wrecked Volkswagen for . [a] stolen Volkswagen”—that had been stolen during August in Cleveland. But the really short answer was supplied by the affi- ant in his testimony. He admitted there is nothing in the 4. The two-prong test of Aguilar requires that the magistrate be informed of (1) some of the underlying facts circumstances from which the informant drew his conclusion, and (2) some of the underlying circumstances from which the affiant-officer concluded the information was credible or his in- formation reliable. (378 U.S., at 114). Under Spinelli, infra, the first prong of Aguilar may be satisfied by informant’s description of — criminal behavior in sufficient detail (393 U.S. 410, 416-418). 36 affidavit showing the source of this informant’s knowl- edge (R 60, 99). : Given this crucial admission, the next inquiry must be was the information reliable. In deciding this ques- tion, it becomes important to know if the informant him- self was offering direct knowledge as distinguished from hearsay twice compounded. If the latter is true, then the entire evaluation process must begin again at a second level of remoteness. The question then is did the pri- mary informant pass along sufficiently detailed informa- tion to enable the Judge issuing the warrant to determine (1) the credibility of the secondary informant, and (2) the worth of his information. Not only this, if it should happen that the secondary informant is a mere conduit for hearsay thrice removed from a tertiary informant, the evaluation process is escalated to yet another level of re- moteness. See Spinelli v. United States, 393 U.S. 410, at 410 (majority opinion), and 423-425 (concurring opinion). What this means is that ultimately the Court issuing the warrant must have the benefit of someone’s firsthand knowledge in order to evaluate the worth of the informa- tion. And, he must have satisfactory proof of the credi- bility of every person involved in the chain of transmis- sion from the initial informant to the magistrate himself. As applied to this case, then, there is just no way the un- named informant can pass the second prong—that is, the veracity prong—of the Aguilar-Spinelli formulation. This being the case, our conclusion, since the credibility of the affiant’s so-called informant was indispensable to the vali- dation of the affidavit in this case is that the affidavit was insufficient. On the other hand, we concede it may be possible to satisfy this disjunctive aspect of the veracity prong of 37 Aguilar without knowing anything about the credibility of the affiant’s source—that is, his informant—the ques- tion then is was the so-called information furnished un- der circumstances giving reasonable assurance of trust- worthiness. In our judgment, even with this possibility, there seems no way such a thesis could rescue this warrant. This is so for a number of reasons. The first of these is, of course, the patent fact that the “summary” of the inform- ant’s information (R 114-119), or the “synopsis” of what Battle said (R. 1193), shows the informant in this case was a mere conduit, if he was that, for some more remote source. But even that is not all. The “synopsis” credits Bat- tle with having said things that were both at variance with items particularized in the affidavit, and with the other indisputable facts. Then there is the irrepressible fact that Battle denied having made the statements in the synopsis. Furthermore, the Record categorically shows Battle was in California; hence, could not possibly have been subjected to any interview in Cleveland on October 10, 1972—the day McComb says he talked to his infor- mant (R 12). Then, of course, the fact that the affiant’s informant stated Charles Simpson, as distinguished from his wife, had purchased a Volkswagen from Moyer’s shows, if nothing else, the lack of any self-verifying de- tails in the hearsay information relied on as the basis for the warrant. Even if the above analysis were invalid, the allega- tions still could pass muster only if the affidavit furnished a sufficient basis for the conclusion that the source of the so-called information was “credible.” But it does not do that either. 38 Here, of course, the affiant did not even suggest this was the case. His conclusion was that his informant was reliable,“ because he checked the title records on the basis of the informant’s statement that Charles Simpson had purchased a car from Moyer’s and was (—that is, Charles Simpson) using this title for a stolen Volkswagen. Thus, one must wonder how the discovery that Simpson’s wife was the purchaser of a Volkswagen from Moyer’s proves the informant is reliable. This is especially so since the basis for the informant’s conclusion that the car was stolen was not even suggested in the affidavit (R.99). It is obvious this is the type of allegation the Court doubtless had in mind when it concluded that, “in the absence of a statement detailing the manner in which the information was gathered [here the asser- tions made by the informant about Simpson], it is especially important that the tip describe the accused’s criminal activity in sufficient detail so that the mag- istrate may know that he is relying on something more substantial than a casual rumor [then] circulating” (Spinelli, at 416). : (B) The analysis developed above, as well as the valid conclusions drawn therefrom, of course, apply full strength ty’ informant’s “credibility.” Under Aguilar, 378 U.S., at 114, the conclusion that an informant is credible is a relevant circum- stance, if the basis for that belief is furnished the magistrate and the basis for the informant’s conclusions are likewise exposed. The reliability feature relates to simply an alternative way the requirements of Aguilar can be met, if the source of the informant’s conclusion is stated in the affidavit. 39 to the search warrant issued for the Cadillac—only more so. As to this warrant, in addition to the failure to offer any basis for the informant’s conclusion that “a 1971 El- dorado convertible black Cadillac, being driven by and titled in the name of Charles Simpson is a stolen auto- mobile.” (R 59-60); “reliability” (as distinguished from “credibility”) for this unnamed source was specifically related to the fact that his conclusion that the Volkswagen was stolen proved to be true. If the above analysis requires the conclusion that the original warrant (for the Volkswagen) was issued with- out probable cause, then there is no way to avoid char- acterizing this second warrant as having been based on a “fact” that was “fruit of the poisonous tree.” Stated an- other way, we contend that inasmuch as the Volkswagen warrent was issued without probable cause, to the extent the Cadillac warrant was based on the fruit of this illegal search, the seizure of the Cadillac has to be viewed as illegal. Silverthorne Lumber Company v. United States, 251 U.S. 385, 392 (1920); United States v. Paroutian, 299 F.2d 486, 489 (1962); State v. Thompson, 1 Ohio App. 2d 533 (1965). (C) Also, the Record shows the Court’s stated position to be that Rule 41, Ohio Rules of Criminal Procedure, was no bar to his consideration of the information the affiant supposedly gave to the issuing judge. Here, the Court specifically concluded that this Rule does not apply to warrants issued prior to the effective date of our new Criminal Rules—July 1, 1973. We contend, on the other hand, that the existence of these rules at the time the motion was considered was the relevant circumstance. Furthermore, this specific rule ob- 40 viously reflected the growing awareness of the extent the public has been victimized by police perjury. See Grano, “A Dilemma for Defense Counsel: Spinelli-Harris, Search Warrants and the Possibility of Police Perjury,” 1971 U. III. L.R. 405, 427-457. Under this Rule, of course, the requirement is that all of the elements necessary to establish probable cause must be expressly stated in the affidavit as the basis for the war- rant. The upshot being that the judicial officer issuing the warrant may only do so on the basis of information stated in the affidavit when such is sufficient to support his inde- pendent determination that probable cause exists. Whitely v. Warden, 401 U.S. 560, at 564 (1971). From this position, emerges the concept that the mere assertions by an affiant that probable cause exists based on unsupported conclu- sions cannot justify the issuance of a warrant. As applied to this case, a necessary inference from the Court’s position that he could consider the conversations supposedly had by the affiant with the issuing Court, is that he did so. } Given then the Spinelli requirement that courts should demand a higher standard of specificity of information when scrutinizing an affidavit which relies on an in- former’s tip (393 US., at 415), the fact that this affiant was impeached to the extent that he was; as well as the exposure that the affiant had obviously not indicated to the magistrate that his primary source was also relying on hearsay certainly cast a dark cloud on the Court’s ruling in this regard. In this sense, if the Court, in spite of Rule 41, had the discretion to consider the asserted contents of these con- versations with the issuing court, such was surely abused. This is especially so in light of the State’s successful op- 41 position to any disclosures that might have led to the in- formant’s identity. In fully evaluating these contentions, it is hoped this Court will recognize that one of the real problems else- where (—that is, in places other than Ohio, where police officers are almost automatically regarded by the courts as honest, credible and reliable except when they are de- fendants or defense witnesses) involves the genuine con- cern being evidenced in the reported cases over the ap- parent willingness of some magistrates to simply rubber stamp applications for warrants. This most courts do de- spite the virtual plethora of cases holding that courts can- not, with impunity, continue to rely solely on an affiant’s assertions that his informant is trustworthy, truthful, pru- dent, reliable and credible. Thus, the law has imposed an affirmative duty upon the courts, qualified to issue war- rants, to see to it that they are not being deceived. See United States v. Dunning, 425 F.2d 836, at 840 (1969). Also see Rule 41(C), Ohio Rules of Criminal Procedure, which expressly authorizes the production of witnesses before the magistrate to assist him in the performance of his duty to independently determine whether the privacy of our citizens should be invaded. If this concept has any validity whatsoever, then our case presents a virtual textbook example of when a war- rant should not have been issued. It also shows all of the reasons why, if the Court felt obligated as this one obvi- ously did, to issue the warrant, he should have required the affiant to produce the informant at least so that the court could satisfy itself that one existed. This surely could have resolved some of these veracity questions. Un- fortunately, none of these things were done, and we have a situation here where the trial court, in reviewing the issuance of a warrant, not only considered as relevant the 42 ‘substance of information supposedly given outside the four corners of the affidavit, but frustrated the defense efforts to prove the issuing court had been willfully deceived. The Court of Appeals, in dealing with the contentions made above, drew the conclusion that “probable cause was established from information supplied by the affiant from his own knowledge irrespective of any additional allega- tion in the search warrant attributed to an undisclosed in- formant” (see Journal Entry, Appendix, p. A8). As to this crucial holding, certain issues are at once apparent. Unless the Court of Appeals’ opinion is being either misread or misunderstood, while inferentially agree- ing with counsel that the trial judge’s stated reasons for validating these warrants were defective, the Court has convinced itself that the affidavits were sufficient on their face. This the Court concludes to be the case in a fashion that leaves the trial judge, the trial prosecutor, and the affiant unconvinced that the Court would zealously scruti- nize shotgun assertions in an affidavit, if it just happens to also contain a sufficient number of factual points. Not only this, if the affidavit is subsequently validated the real culprits can be secure in the thought that they will not even be cautioned that there is a point beyond which they can at least be rebuked for either lying under oath, or being less than candid in their dealings with our courts. As to this specific finding by the Court—that is, that the affidavit was facially sufficient, it can only be that the Court of Appeals has concluded that it can “fairly be said that the tip [—that is, that Simpson was in possession of these stolen cars, even after certain parts of it have been corroborated by independent sources, . [was] as trust- worthy as a tip which would pass the Aguilar test without corroboration.” Spinelli v. United States, 393 US. 415. 43 The problem with this, however, is that one using this standard finds only a rather nebulous report as to the Volks- wagen, part of which was admittedly inaccurate. We have, with reference to the Cadillac, the fact that the Volks- wagen was shown to have been a stolen car and Simpson’s possession of a Cadillac that was, when it was originally placed on the market, a different color. The question is, can the police seize this car to determine if it is stolen. The answer seems obvious. The police can no more seize a car “for investigation” than it can seize a man for this purpose. Il. An Intentional or Recklessly Untruthful Misrep- resentation Will Result in an Invalidation of a Warrant, the Same Is True of an Unintentional Mis- representation of a Material Issue of Fact. First of all, it is conceded, as the State must agree, that when the internal evidence about the informant him- self or the information supposedly supplied by him, fails to establish intrinsically either personal credibility or in- formational reliability, other evidence in the affidavit may satisfy the alternate route to probable cause developed in the wake of Spinelli. Here, this gap was sought to be bridged by the product of subsequent investigations al- legedly made by Detective McComb. Ostensibly, these were undertaken to verify, or corroborate, information sup- posedly supplied by his informant. We should look then under Spinelli,“ to the relevant assertions as set forth in the first affidavit. At the risk of is “ean it fairly be said that the tip, even when certain parts of it have been corroborated by t sources, is as trust- asa which would pass A test without corrobora- w tion?” 393 U.S., at 415. 44 sounding repetitious, we contend that the affiant’s actions were deliberate and willful. This is especially so since by his own admission he only put in his affidavit the things he felt checked out. The necessary inference from this is that he intentionally and deceptively left out those things his investigation showed were in conflict with what he reported his “informant” had said. Of interest as to this point, the Record shows that in defending these crucial omissions, this officer brazenly testified that “quite naturally” (R 64), he did not put those things in his affidavit which might have tended to undermine his efforts to show the informer was reliable. In other words,. . [He was] not interested in showing . . [the informant] was not reliable, [he was] interested in showing he was reliable so it was for that reason. . . [he] did not put it in the affidavit.” (ibid.). In this same vein, there is McComb’s cute testimony that he had not been told, nor had he testified his informant had said, the car Simpson’s mother was driving was stolen (R 65-66). Given the fact McComb testified he checked the Title Bureau for cars in the name of the various Simpsons, his testimony that he did not check and determine, before warrants were issued, whether the mother’s car was stolen property is at least suspect. This is especially so in view of his express testimony that he expressly checked the records “in regard to vehicles owned by Charles Simpson, by Nancy Simpson, and by Rosa Simpson (R 15). But actually it is more than that. The conclusion that his tes- timony was perjurious becomes even more irresistable in light of the showing that the written summary of what the informer told him (R 114) (that is, the purported synopsis of what Battle said [R 1193]), credits the informer with having reported to McComb, before the warrants were is- sued, that the mother’s car was stolen (R 117). 45 Thus, to believe McComb was giving anything other than false testimony, and misleading conclusions in his affidavit, this Court must be convinced that when McComb stated he checked on the cars in the Simpson name and found contrary to what his informant had supposedly said, a Volkswagen in the wife’s name, that he did not check at that time to see whether there was a stolen Chevrolet stationwagon listed to Simpson’s mother. In any event, regardless of the position the Court takes on this point, it must still be recognized that the in- formant specifically credited the Cadillac car with having been purchased by Simpson from Moyer’s whereas the records, checked by affiant, showed it had been purchased from a different dealer in a different county. Add to this the fact that the informant had said the Volkswagen was in Simpson’s name and that too turned out not to be true. Neither of these facts were stated in the affidavit, nor was any mention made therein about the misinformation rela- tive to the mother’s car. Add to this Battle’s testimony denying that the remarks were his, and the fact that the informant was giving hear- say information that was not exposed to be such in the affidavit, and the issue here becomes most clear. Surely, then, it must be as obvious to this Court, as it was to the trial court, that the considerable amount of mis- information in the affidavit was deliberate. The question thus created, one which may be viewed as novel for our courts (at least our research has not un- covered any cases on this point), involves the effect of inaccurate or willfully false statements in an affidavit. A possible explanation for this could be the fact that this Court has not clearly decided this issue. See Steele v. United States, 267 U.S. 498, at 501 (1925). 46 Other courts, however, have concerned themselves with the problems created where, as here, a showing of deception, falsehoods, misrepresentations, or imposition on the magistrate is made. The leading cases on this point include United States v. Carmichael, 489 F.2d 983 (7th Cir. 1973); United States v. Thomas, 489 F.2d 664 (5th Cir. 1973); and United States v. Marihart, 492 F.2d 897 (8th Cir. 1974). In Carmichael, the Court took the position that a defen- dant is absolutely entitled to show any misrepresentation by the affiant of a material fact in his affidavit, or an intentional misrepresentation whether material or not. Further, that if a deliberate misrepresentation is shown, “the Court need not inquire as to . . . [its materiality].” Id., at 988-989. Where the misrepresentation is negligent, or reckless, the Carmichael Court would then determine whether it affected the issuance of the warrant (ibid.). The Fifth Circuit, in Thomas, held that, ‘. . . affidavits containing misrepresentations are in- valid if the error (1) was committed with an intent to deceive the magistrate, whether or not the error is material to the showing of probable cause; or (2) made nonintentionally but the erroneous statement is mate- rial to the establishment of probable cause for the search.” (489 F.2d, at 669.) 8 The Eighth Circuit Court, in Marihart, after consider- ing both of these views, adopted the position as expressed in Carmichael. In line with this, they ruled that an in- tentional or recklessly untruthful, misrepresentation will result in an invalidation of a warrant as will an uninten- tional misrepresentation of a material issue of fact. Quite obviously, these rules were designed to test the credibility of affiants whose testimony or affidavits are 47 before the Court. See Forkosh, The Constitutional Right to Challenge the Contents of Affidavits in Warrants Issued Under the Fourth Amendment, 34 Omo Sr. L. J. 297 (1973), and Kipperman, Inaccurate Search Warrant Affidavits as a Ground for Suppressing Evidence, 84 Harv. L. Rev. 825 (1971). Anticipating a possible contention that the decisions above, which clearly authorize an in depth exploration into the asserted basis for the issuance of a warrant, are merely Federal cases, and do not apply full strength to state courts, the recent decision of North Carolina v. Wrenn, ....... „ , 94 S. Ct. 3180 (1974), may prove enlightening to the prosecutor. Here, the Court was deal- ing with a state prosecution involving a warrant that on its face satisfied the applicable state statutes and was con- stitutionally adequate. Although the conviction had been affirmed by the state Supreme Court, apparently in line with the concept that only facial sufficiency was required, the Federal District Court, in granting a Habeas Corpus Writ, saw it as his duty “to rule out erroneous averments in the affidavit and proceeded to test the validity of the warrant in the light of the remaining uncontested aver- ments,” and after so doing found the affidavit insufficient. On appeal, the Federal Court of Appeals approved this procedure. This Court then denied certiorari with only two judges dissenting from this action. Surely then if this type of analysis is given the af- fidavits in this case, the required conclusion can only be that this argument supports our position, in an alternative way to that urged in Argument No. I. In dealing with the defense contention that the affi- davit contained false, perjurious and willfully deceptive representations, the Court made the interesting holding that: 48 “No case has been cited that holds either (1) all in- formation given to police officers by undisclosed in- formants must be stated in the affidavit, or (2) if any information stated by the informant turns out to be in- accurate, the search warrant is invalid notwithstanding the fact that the accurate information standing alone is sufficient to establish probable cause.” (id., at page 7.) In support of the Court’s ultimate thesis on this point, the case of United States v. Damitz, 495 F.2d 50 (1974), was cited. Apart from the fact that an analysis of the Damitz case does not support the Court’s disposition on this point, there is the fact that the two premises, upon which the Court structured its syllogism, simply cannot survive close scrutiny. While the Court is quite correct when it concludes that “no case has been cited that holds. . (1) all information given to police officers by undisclosed informants must be stated in the affidavit”, the fact is no case could possibly hold that such is a requirement. On the other hand, cases were cited which do hold that a showing of deception or imposition on the issuing magistrate are sufficient circum- stances to require the voiding of a search warrant. Those cases include United States v. Carmichael, United States v.- Thomas, United States v. Marihart, and United States v. Dunning. The upshot of these cited cases is that our courts should not be deceived, as the magistrate in this case was, into routinely accepting the naked representations of po- lice officers. This is especially so if they are from Cleve- land, Ohio, where “history has shown that the police act- ing on their own cannot be trusted”. 49 While this proneness on the part of some of our courts, to accept the oath of a police officer as gospel, and to view as unthinkable the idea that all police are not honest and fair, may have had some high degree of validity in some bygone era when a presumption of regularity and candor concerning law enforcement officers could be invoked. But given the facts of this case, and numerous others (both state and federal, which show members of the Executive or Enforcement branches of government are, after all, hu- mans like the rest of us), the fact that they are police- men is alone a circumstance that should require judges issuing warrants, and those reviewing such actions, to carefully scrutinize their ex parte papers. The federal appellate courts seem willing to impose an affirmative duty on those issuing to see that they are not being deceived (United States v. Dunning, 425 F.2d 836). Thus, it comes as a real blow to learn that the trial courts in Ohio are not required to exercise comparable control over those who apply to them for warrants. Dealing then directly with what counsel regards as the heart of the Court’s ruling on this point, the affirma- tive position here being taken is that United States v. Damitz does not stand for the invariable proposition (as the Court of Appeals’ opinion can be read to hold) that where there is sufficient accurate information in the affi- davit to pass constitutional muster, such is all that is re- quired. Damitz, to be sure, did look past certain inaccurate portions of an affidavit, and drew the conclusion that apart therefrom the affidavit was sufficient. However, the Damitz Court made the point that the affidavit con- taining the faulty information was that of a third party, “not that of a government agent” (id., at 55). Further, that Court held “the case might have been different if 50 a government agent had made an affidavit containing ma- terial false statements” (ibid.). So structured, it is apparent that Damitz is really not in point here. Not only this, the real point can be made by paraphrasing the Court’s premise to read: no case can be cited which holds that if certain information is either artificially or correctly attributed to an informant turns out to be inaccurate, or the affidavit otherwise con- tains intentional falsehoods (or even unintentional mis- representations) the affidavit must be deemed valid if apart from these defects it still contains probable cause. This brings us back to the Court’s original premise that no case was cited showing, in effect, that the exis- tence of falsehoods in an affidavit is sufficient to void a warrant containing enough accurate information to other- wise support its issuance. What the cases of Carmichael, Thomas and Marihart all agree on is that the relevant considerations are (1) whether the falsehoods were inten- tional, and (2) whether they were made with an intention to deceive. All of these cases hold that if the falsehoods were intentional (whether on a material point or not) the warrant should be voided. Then there is the case of United States v. Belculfine, 508 F.2d 58 (1974), which was cited to the Court during™ argument, as a more recent decision in this area. This case also refutes the Court’s stated position that “no case has been cited” bearing on these points. As to the Bel- culfine case, it takes the rather strong position that even after having determined “the misstatement in the affi- davit as immaterial in the sense of not being a ‘but for essential’ of probable cause, does not dispose of the case” (id., at 62). This view is, to be sure, diametrically opposed to that expressed by the Court of Appeals in its Journal Entry. (Appendix, p. A9). 51 In the view of the Belculfine Court, although the mis- ‘statement related to an immaterial fact, it nonetheless “changed a marginally adequate affidavit into a solidly persuasive one” (ibid.). Further, that Court reasoned that [Al knowing misstatement of so significant a fact would exhibit exactly that quality of unscrupled zeal which im- pelled the adoption of the exclusionary rule” (ibid.). Even more significantly, the Belculfine Court, in what can be regarded as a direct refutation or confutation of the position taken by the Court of Appeals on the same point, reasoned that: Were the judicial response to be merely the elimina- tion of the false statements and the assessment of the affidavit’s adequacy in the light of the remaining averments, enforcement officers would be placed in the untoward position of having everything to gain and nothing to lose in strengthening an otherwise marginal affidavit by letting their intense dedication to duty blur the distinction between fact and fantasy. We therefore see no supportable alternative to sup- pression of evidence obtained pursuant to a warrant based on an affidavit containing an intentional, rele- vant, and nontrivial misstatement. We see no basis for confining this sanction to false statements made with the specific intent to deceive the magistrate as opposed to false statements merely intended to ‘round out the picture. We see no danger of frequent frus- tration of warrant-based searches and seizures occa- sioned by challenges based on intentional misstate- ments. Such challenges, to be entertained, would have to be preceded by a showing of falsity of allega- tion—a showing presumably not easily to be made in most cases.” (Id., at 63.) (Emphasis added.) 52 III. The Right of Confrontation and the Hearsay Rule Are Both Violated When a Crucial Witness Is Al- lowed to Relate As Substantive Evidence the Con- tents of Conversations Had With an Undisclosed Informant, and With Others—Including a Judge and the County Prosecutor. So that this aspect of our Petition can be properly structured, the factual background for the above conten- tion, in the first instance, relates to the following segment of the Record: Q. . . Will you tell the Court and jury how your investigation or involvement in this matter be- gan? MR. WILLIS: Objection. . s * 2 * MR. WILLIS: [Out of the hearing of the jury] I guess he is going to say some informer told him something. I don’t know who it is he is going to be talking about. I am objecting. MR. LIPOLD: Of course, we have to get started somewhere. We have to start out where he started. MR. WILLIS: I don’t think we should start with some unnamed informant that you are going to resist, make every effort to resist [disclosing]. THE COURT: The objection is overruled. You may answer. THE WITNESS: I was directed by Sergeant Dierker to conduct an investigation into the possi- bility that Mr. Simpson was involved with some stolen automobiles. Q. All right. Now, after that what happened as far as your investigation is concerned? Particularly calling your attention to October 10, 1972, did any- thing happen on this day in relation to this investiga- tion? MR. WILLIS: Objection. THE COURT: All right. THE COURT: [at side bar] What is the ground for your objection, Mr. Willis? MR. WILLIS: I anticipate he is going to say on that day he met with an informant who gave him information. This is precisely what he testified to on the motion to suppress. THE COURT: Will you please repeat the ques- tion? (Question read.) THE COURT: The objection is overruled. You may answer. A. Yes, something did happen. Q. What was it? MR. WILLIS: Objection. THE COURT: Overruled. A. On September—excuse me, on October 10, 1972, Detective Tesar, Sergeant Dierker and myself met with an informant who related— MR. WILLIS: Objection. THE COURT: Overruled. MR. LIPOLD: Continue. A. —who related information to us in regard to some particular automobiles that were owned by Mr. Simpson. Q.. Now, what automobiles did you receive in- formation relative to? ~ * MR. WILLIS: Objection. THE COURT: Overruled. 54 A. A particular Cadillac automobile, a Volks- wagen automobile, a Porsche automobile, a Corvette automobile was mentioned. I believe a Chevrolet stationwagon was mentioned. There may have been others. I believe that was substantially it. Q. This information, or whatever it was that you received at that time, as a result of it, what if any- thing did you do? MR. WILLIS: Objection. THE COURT: Overruled. A. The following—well, I believe it was the fol- lowing day we went to the Cuyahoga County Title Bureau, that is Detective Tesar and I. Q. For what purpose? A. At the title bureau, I conducted an investigation into their records of auto- mobiles owned by the Simpson family, that is including Charles Simpson, his wife Nancy, and his mother, Rosa. Q. Did you find any such titles? A. Yes. I found a number of automobiles that were titled, either actively or dormantly, in their name (R 1916-1920). Thus, the Record reveals, even to a casual student of the due process spectrum, that the thrust of the above sequence was to suggest that an informant’s disclosures_ were completely vindicated by the officer’s investigation. The question then is, did the State’s intentional use of this evidence violate the petitioner’s right of confronta- tion. Any evaluation of this issue must, of course, start with a consideration of the cases of Pointer v. Texas, 380 U.S. 400 (1965), Douglass v. Alabama, 380 U.S. 415 (1965), and Smith v. Illinois, 390 U.S. 129 (1968). The upshot of these cases is not only to the effect that an accused is en- titled to confront any witness whose declarations are weighed against him; he is entitled to cross examine them. 55 Not only this, by virtue of Smith v. Illinois, supra, an ac- cused is entitled to have any such witness completely un- masked. As applied here, it is at once apparent that to the ex- tent the informer’s information supposedly supplied (or to the extent Detective McComb credited him with being the source thereof) added any weight to the prosecutor’s case in a manner not subject to cross examination, it vio- lated these principles. Here, of course, there was not only an inability to cross examine the alleged informant to whom the imper- missible disclosures were attributed, this wrong was ag- gravated by the fact that at the time the questions were asked the prosecutor knew he would resist any disclosure request. Surely this makes his having asked these ques- tions deliberate. In our judgment, this was an act of inexcusable misconduct. In any event, it was because of these questions, asked with the Court’s aggressive approval, that counsel made the Motion for a Mistrial, the denial of which is assigned as error. Here, it was contended: J. . . move for a mistrial at this time because of certain statements that have been permitted into the record over my objections. There has been testimony elicited from Mr. Mc- Comb about information supplied to him by informers, whose identity has been withheld from counsel. This violates, in my judgment the admission of this, the defendant’s right of confrontation. I think it is under the 6th Amendment. It also violates all of the rules that I know with reference to the admission of hearsay testimony. 56 Also, the same objection and motion for mistrial is made for the same reasons as it pertains to con- versations had with Mr. John T. Corrigan. The obvious thrust of this examination was to sug- gest that Mr. Corrigan had affirmatively approved and deemed sufficient the information that had been sup- plied by Mr. McComb and the informer to him and I don’t think that was appropriate. All this testimony about the basis for the search warrant was certainly unnecessary and prejudiced the defendant’s right to a fair trial. Because we have the injection of Judge Matia as another factor bolstering the efficacy of the police efforts insofar as the seizure of these cars is concerned. I don’t think the State was entitled to present that evidence and I feel it violates the defendant’s right of confrontation. Also, I might add that in view of the evidence that has already been permitted from Mr. McComb, about an informer, if the Court is disposed to reject my mo- tion for a mistrial, that the Court rule. . whether I am ever going to be supplied with the identity of this fictitious informer, if he is anybody other than Battle—fictitious is my judgment—in order that I be in a position to properly examine Mr. McComb. I have to know whether or not this so-called in- former exists before I embark on my cross-examina- tion. I have to also know what his attitude is based on my interview with him and all of these things are necessary if I am to have an adequate opportunity to cross-examine Mr. McComb. 57 I cannot assume the burden of cross-examining this man, knowing that he is going to be giving the fantastic leadway he has been given today by the Court to credit an informer with having told him things. And I have no way, absolutely no way of verifying this. So, therefore, I can’t ask him any questions be- cause I am at his mercy, if I ask him questions about what some informant told him. Mr. McComb is not the type of person at whose mercy I want to be.” (R 1945-1949). These motions, as were virtually all but the most ele- mentary, were denied. Here, the Judge again exposed his apparent lack of comprehension of either our objections or of the willfulness of the prosecutor’s tactics. If it were otherwise, there is just no way the Court could have possi- bly concluded, in response to a facet of these motions that, “there was no testimony relative to the content or actual words that passed back and forth” as between the prose- cutor and the Judge who issued the warrant (R 1961). As to this expressed view by the Court, see Favre v. Henderson, 464 F.2d 359, 362 (5th Cir.), cert. denied, 409 U.S. 942 (1972). In Favre a policeman was allowed to tes- tify that his pursuit of the defendant was caused, at least in part, by information obtained from two reliable in- formants, but he did not testify as to the content of his conversations with the informants. Id., at 360-61. The court found that a logical inference from the testimony would go beyond identification of the defendant to an in- ference of guilt and thus, that the implied statements were hearsay as offered to establish guilt. Id., at 362. Admis- sion of the testimony violated defendant’s Sixth Amend- ment right to confront the witnesses against him and, therefore, was reversible error. Id., at 463. Surely it must be apparent that the Favre case is al- most on all fours with the case here, at least insofar as the impermissible use as proof of guilt of the necessary inference flowing from this type of evidence is concerned. Despite this, our Court of Appeals, in resolving these very serious problems involving confrontation and hearsay, apparently concluded that the Roviaro principle can be ex- teuded to authorize a police officer to report to the jury the substance of his conversation with an undisclosed in- formant, the County Prosecutor and a Common Pleas Court Judge. Apparently, this would not deprive the ac- cused of a fair trial, if (as was the case with the false statements in the affidavit) “there is enough evidence to convict without the information” to which this argument was addressed. The fact is there is no way to say how much the jury may have been influenced by McComb’s testimony that he screened the objected to hearsay with the judge and prose- cutor. At least this much is certain, the Court was spe- cifically directed to Favre v. Henderson, 464 F.2d 359 (1972), which involved a situation somewhat comparable to ours—only not nearly as bad. In Favre, unlike the officer in our case, the testimony was simply that the de- dendants in that case had become targets because of in- formation supplied by informants. No testimony was given as to the contents of the witness’ conversations with these informants. Stated another way, the hearsay itself was not admitted as substantive proof. In our case, this is exactly what occurred. The result in the Favre case was that a logical inference from this testimony was that of guilt. Yet, the same issue becomes harmless error in our case. This despite the fact that the prosecutor’s justification for asking these questions really does not make sense. 59 IV. A Trial Court Cannot, Consistent With the Require- ments of Due Process, Sanction the Nondisclosure of the Identity of an Alleged Informant Where It Appears Necessary (1) to Avoid the Risk of False Testimony, (2) to Secure Useful Testimony, or (3) It Is Essential to a Fair Determination of a Cause or Issue. In Scher v. United States, 305 US. 251, at 254 (1938), the Court concluded, and we surely recognize this as the fact, that: “Public policy forbids disclosure of an informant’s iden- tity unless essential to the defense, as, for example, where this turns upon the officer’s good faith.” Next, in commenting on this same thesis, the Court, in Roviaro v. United States, 353 U.S. 53, at 60-61 (1957), concluded that “where the disclosure of an informant’s identity . . . is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.” Thus it is that regardless of the known penchant of most of our judges to allow the police to decide whether disclosure is required, the law has determined that whether disclosure is required depends upon the circumstances of each case. This perforce involves a balancing of the pub- lic’s right to the flow of information and the requirement of providing a fair trial to the defendant. In this sense, it follows that an informer’s “identity cannot be concealed from the defendant when it is critical to his case.” Branz- burg v. Hayes, 408 U.S. 665, at 668 (1972). Thus, the test that emerges from these cases is that where there is a reasonable probability that the informer can give testimony necessary to a fair determination of a material issue (see 51 Federal Rules Decisions 378), the 60 burden is on the prosecution to show that the informer cannot supply any relevant evidence. If the above reasoning is valid, then there is really no way to deny that disclosure can be constitutionally re- quired. This being the case, it is only necessary to deter- mine whether circumstances requiring disclosure are present here. Given the Motion to Suppress, as amplified by Battle’s evidence that he did not supply the “information” at- tributed to him by “the informer,’ and the Court’s flat recognition that the summary of the informer’s informa- tion was a “purported synopsis of what Battle supposedly had said” (R 1193); as well as the intimation in McComb’s testimony that the informant may have been a police of- ficer (R 128), it is apparent there were sufficient circum- ‘stances here to raise a legitimate question as to whether McComb committed perjury not only when he testified (if he did) before the issuing magistrate, but also in his testi- mony at this trial. Surely, this question could not be re- solved merely by accepting the officer’s testimony that he would not reveal his informant’s identity (R 68) as the sole basis for the Court’s decision not to require him to do so (R 2065). In addition, since McComb and Battle both testified té facts which were in contradiction to certain segments of the informant’s summary, the defense right to interview the “informer” to have compulsory process Washington v. Texas, 388 U.S. 14 (1967), and to cross examine him Cham- bers v. Mississippi, 410 U.S. 284 (1973), were frustrated. In this case, the Record is clear, there is no way to know what the posture of the defense would have been if disclosure had been required. Nor is there any way to know what the informer’s testimony would have been if 61 the defense had had the benefit of the person’s evidence. It is also quite possible, we contend, that the officer made up this informant (and Battle’s testimony leaves no other option), in order to camouflage certain ulterior motives. Here, too, the Record is clear that the Court did not make a determination that there was a legitimate basis for nondisclosure. Nor did the Court even seek to deter- mine whether, in spite of our stated position (R 2511 et seq.), disclosure would not have been of any possible bene- fit to the defense. We contend, therefore, that these fail- ures of the Court cannot be said to be only an abuse of dis- cretion, but they also must be viewed as a denial of the right to the compulsory process for the presence of wit- nesses, and as a violation of the right to confrontation. Furthermore, the failure of the prosecutor to disclose, especially in view of our affirmative efforts to gain such information (even apart from the Court’s unwillingness to insure a fair trial for this petitioner) amounts to the suppression of evidence. Stated another way, we contend it was prosecutorial misconduct within the meaning of Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972) to withhold information which was at the very least material to impeachment of certain crucial prosecution witnesses. The fact that the prosecutor also asked questions eliciting information which was specifically attributed by their witness to the informant, whose identity he did not intend to disclose, only aggravates his misconduct. At least this much is certain, the testimony rendered by Detective McComb and by Tyrone Battle was both crucial to the State’s case and extremely damaging to the accused. To this extent their credibility was a major fac- tor, one of vital importance to the petitioner. Given these 62 undeniable facts, if the defense was entitled to disclosure, any belated argument that the ultimate effect of the Court’s rulings denying disclosure and the other related aspects was harmless error has to be regarded as sophomoric. The same would be true of any allied contention that the prosecutor should be excused for not knowing better. Again, so that our position may be clear, we contend as to this segment of our petition, that for the informer privilege to be deemed controlling, or otherwise appli- cable, it must be properly asserted (a situation that did not occur here) and the Court is at least required to make meaningful findings both as to the propriety of the asser- tion of the privilege and as to whether the information sought would be “relevant and helpful” to the defense. Yet, in this case, for reasons that were not articulated, the trial court, solely on the basis of the officer’s testimony and the prosecutor’s unsupportable argument, not only spe- cifically denied the defense information as to the informer’s identity, the Court otherwise frustrated our efforts to de- termine his identity by grievously limiting our cross ex- amination of the officer. This untenable position the Court ‘maintained even after the State’s chief witness denied having made certain remarks supposedly attributed to him by the informant, and after it was further shown that cer- tain factual assertions credited to the informant were either not in his “written summary,” were not factual, or were misrepresented in the affidavit for search warrant. All this points to crucial flaws in the Court’s sum- mary assessment of this situation. For, if under Roviaro v. United States, the Court had the duty “of balancing the public interest in the flow of information against [Simpson’s] right to prepare his defense” (353 U.S., at 62); then surely such requirement is clearly at odds with the arbitrary and indefensible position taken herein. Refer- ence here, of course, is being made to the Court’s spontane- ous ruling that disclosure would not be ordered. Again, the fact that the Court maintained this adamant position is even more startling after the Court permitted Detective McComb to testify, in the presence of the jury, over defense objections as to information supposedly sup- plied him by the informant during the course of his in- vestigation. Pointer v. Texas, 380 U.S. 400 (1965). Be all that as it may, there is just no way it can be concluded that the judicial task of seeking fundamental fairness could in this situation ever be achieved where a police officer is given the power to decide both what is privileged and whether the defense is entitled to evidence which so obviously could be put to beneficial use. Under the proper standard the trial court’s ruling can only be justified, if it had been shown that the informer’s evidence did not relate to any of the deciding factors upon which a conviction or acquittal could rest. In addition, it had to be affirmatively shown that any possible testimony by him was grossly outweighed by the factual consider- ations favoring nondisclosure in the public interest. Given these tenets, for any court, including this one, to deal impartially with and balance such conflicting in- terests, some knowledge was required as to what relevant information the informant actually possessed. Since the Court was not aided by any evidence from which it could have possibly resolved these issues against the petitioner impartially, it can only follow that the Court must have indulged in a judicial guessing game when it ruled in favor of nondisclosure at the expense of Simpson’s right to a fair trial. See Jencks v. United States, 353 U.S. 657, at 671 (1957). 64 Ik such were not the case, at least this much is cer- tain; the record in this case shows no basis (absolutely none) for the trial court’s decision against disclosure. Given even an equiponderant interest between the public and the accused, it seems only fair that due process would require a fuller analysis than has been given to this issue. Surely then an apparent finding that the public interest required that the identity of this informer not be disclosed can never be delegated with impunity to the witness as has been attempted here. While it is true, as a basic premise, that the range of conduct prosecuted by our criminal statutes is broad, the danger in most situations of violent repercussions against witnesses really does not present any significant objection to disclosures of their identity. Thus, the sensible require- ments are that the State has no interest in denying an ac- cused access to all evidence that can throw light on the issues involved in his case. See People v. Riser, 47 Cal. 2d 566, 305 P.2d 1, at 13 (1956). Here, of course, given the possibility that the informant was a police officer (R 128), it does seem strange that due process could weed 1x that he remain anonymous. As to this possibility, the case of United States v. Leichtfuss, 331 F. Supp. 723 (1971), seemis to be directly in point. Here, the United States Attorney opposed a request for the names and addresses of potential government wit- nesses, all employees of the government. The Court, in granting the request, ruled that “certainly there is no ap- parent threat that disclosure of the identity of these wit- nesses .. . will subject the witness to physical . . harm or to threats designed to make him unavailable to testify or to influence him to change his testimony.” Also see Will v. United States, 389 U.S. 90, at 96. There, this Court recognized that where it is shown “that such disclosure will 65 involve physical risk to individuals“ (389 U.S., at 101) such is a circumstance that must be dealt with. These cases and others seem to require a showing of at least probable cause to believe the danger of intimida- tion exists. Even when such danger does exist, the re- quirements of due process are that where the information sought is “relevant and helpful to the defense of any ac- cused, or is essential to a fair determination of a cause, the privilege [of nondisclosure] must give way.” Roviaro v. United States, 353 U.S., at 60-61. In this latter situation the prosecution acquires the choice, either surrender the information or “dismiss the action” (ibid.). Still another court that has dealt with the question as to whether disclosure can be required is the Supreme Court of Illinois. In their decision (People v. Lewis, 20 III. App. 3d 161, 313 N.E.2d 170 [1974]), they dealt specifi- cally with the prosecution’s refusal to disclose the identity of their informer on the ground that his life had been threatened. The Court reasoned that, “the desirability of calling . [the informant] as a witness, or at least interviewing him. „ was a matter for the accused rather than the government to decide.” If the State’s contention that dis- closure cannot be compelled were valid, “a defendant would never be entitled to know the informer’s identity, for they could always claim [as they always do in Cleve- land, in even the most routine cases] that disclosure would place the informer’s life or health in jeopardy.” After reasoning it was unfair to refuse to afford a de- fendant the opportunity to decide for himself whether the informer could provide testimony helpful to the defense, the Court concluded that the State’s interest in protecting informers and the flow of information they provide was insufficient to justify denying disclosure of their identity where the same is required is a violation of constitutional rights. Such being the law elsewhere, it remains strange how, in this case, the issue can be said to turn solely on the basis of the conclusory assertions made by a witness whose testimony portends, as this officer’s does, the very real possibility that his evidence was perjurious. During one of the arguments made in quest of dis- closure, counsel stated: „J don’t think that the Court can properly put the defendant in a position of withholding from him relevant evidence. The test as I see it, in the light of Alderman {Alderman v. United States, 394 U.S. 166 (1969)], in the light of Reynolds [United States v. Reynolds, 345 U.S. 1 (1953)], and in the light of the Sirica opinion in the Nixon case [360 F. Supp. 1 (1973) ], this evidence is arguably relevant. We have a right to know who the informer is. My right to cross-examine McComb is seriously curtailed if I can’t raise the foundation to impeach him. Apart from that aspect, we have the testimony of Mr. Battle that he did not relate any of this informa- tion to anybody and yet the statement credits Battle with having contributed all this information.” (R 2057). As our sagacious prosecutor saw it (and this was the ultimate basis for the Court’s decision [R 2067]), the principle involved in these cases “is entirely different from the matter now before this Court. It is not even similar. There, [they] are talking about an executive privilege.” (R 2059-2060). 67 . Aside from exposing a lack of substantive knowledge as to the basic thrust of these cases, the prosecutor’s stated view likewise reveals a total lack of comprehension of the analogy between the privileges involved. In our case, the question dealt with the witness McComb’s inferential as- sertion of the informer privilege against our request for the disclosure of his alleged informant’s name and where- abouts. In the Nixon case, which was affirmed in Nixon v. Sirica, 487 F.2d 700 (1973), the question there was whether the executive privilege was a sufficient barrier to the disclosure of certain tapes. Thus, the issue in both cases involved a determina- tion as to whether the person asserting the privilege (The President, in Nixon, or McComb, in our case) was the sole judge as to whether disclosure was required. In Nixon, Judge Sirica, after rejecting the contention that, “it is the executive that finally determines whether its privilege is properly invoked,” went on to conclude in language that is surely apt here, that, “the availability of evidence including the validity and scope of privileges is a judicial decision.” (360 F. Supp., at 5). Next, the Court, relying on the Reynolds decision (deemed inapt to this situation by our prosecutor), concluded that judicial con- trol over evidence in a case “cannot be abdicated to the caprice of executive [which of course, includes enforce- ment] officers” (ibid.). In further amplification of this point, it was then stated, [Flor the courts to abdicate this role to the Presi- dent or anyone else, to make each officer the judge of his own privilege, would dishonor the genius of our consti- tutional system and breed unbearable abuse.” (Id., at 5-6). In approving this concept, the Court of Appeals rea- soned (contrary to the position taken by the President that his mere assertion of the privilege . . . [was sufficient to overcome the need of the party subpoenaing the docu- ments”]) that “the courts have repeatedly asserted that the applicability of the privilege is in the end for them and not the executive to decide.” (487 F.2d, at 713). The upshot of these cases, including Reynolds, is that, “the Court itself must determine whether the circum- stances are appropriate for the claim of privilege.” (Id., at 714). Given then the trial court’s refusal to require dis- closure, even in the face of its apparent relevance to many of the issues in this case; as well as, our strong showing of need (a factor stressed in Nixon, 487 F.2d, at 717) there does not appear to be any possible basis for approving the trial judge’s thesis in this case—that is, that McComb would not be required to disclose because he did not want to. At least this much is certain, the disclosure requested here was essential both to a fair trial and to the integrity of the verdict that has been returned. See United States v. Hurse, 453 F.2d 128 (1972), and United States v. Jack- son, 384 F.2d 825 (1967). In our judgment then, any one of the flaws developed in this segment of the Petition fur- nished a sufficient basis for a reversal. 1 Despite this, the Court of Appeals’ point in rejecting the above argument must be that unless the defense can show that an asserted informant was a participant in the transactions involved in the trial his identity need not be disclosed. Here, too, the Court has created a basis for rejecting a defense argument that differs from that ex- pressed by the trial court. While no one can dispute the fact that it is proper to look at all the facts and circumstances in resolving the merits of an issue, still one is prone to feel he has been ambushed when the trial court takes one position, which is indefensible, and the Court of Appeals says he was right but for different reasons. However, in this case, Roviaro cannot be regarded as the complete answer to these contenti [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1552%3A1. Public record. Not legal advice.