Petition — Browder v. Director, Department of Corrections

Supreme Court brief1977

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

EN\ EARL BROWDER,

etitioner,

DIRECTOR, ‘DEPARTMENT OF CORRECTIONS,

STATE OF ILLINOIS,

Respondent.

F 2 PETITION FOR A WRIT OF CERTIORARI TO THE

\! \ UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

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Kenneth N. Flaxman

5549 North Clark Street

Chicago, Illinois 60640

(312) 728-3525

John T. Moran

407 Civic Center

Chicago, Illinois 60602

ATTORNEYS FOR PETITIONER

INDEX

OPINIONS BELOW

JURISDICTION

QUESTIONS PRESENTED

CONSTITUTIONAL PROVISIONS, STATUTES, AND RULES INVOLVED

STATEMENT OF THE CASE

ARGUMENT

I. IF THE COURT OF APPEALS MAY IGNORE THE

"MANDATORY AND JURISDICTIONAL” REQUIREMENT

THAT A NOTICE OF APPEAL BE TIMELY FILED, THEN

IT MAY DISPENSE WITH ANY LIMITATIONS ON ITS

JURISDICTION TO PRODUCE A DESIRED RESULT

II. WARRANTLESS ARRESTS FOR INVESTIGATION,

A POLICE PRACTICE REPEATEDLY CONDEMNED BY THIS

COURT, ARE LEGITIMIZED AND ENCOURAGED BY THE

DECISION IN THIS CASE

A. THE IMPORTANCE OF THE ISSUE

B. CONFLICT WITH PRIOR DECISIONS

OF THIS COURT

C. A SUBSTANTIAL UNRESOLVED

CONSTITUTIONAL QUESTION

Db. CONFLICT WITH DECISIONS IN OTHER

CIRCUITS

III. CERTIORARI SHOULD BE GRANTED TO REVIEW

THE BURGEONING TREND TOWARDS "SECRET LAW" IN

THE UNITED STATES COURTS OF APPEALS

CONCLUSION

APPENDIX:

Memorandum Opinion staying proceedings (March 7, 1975)

Order granting petition for a writ of habeas

corpus (October 21, 1975)

Memorandum opinion on order granting petition

Motion to reconsider (November 18, 1975)

Order staying execution of writ pending

hearing on motion to reconsider (December 8, 1975)

Excerpt of testimony at hearing on motion to

reconsider

Police report pertaining to petitioner's arrest

Order denying motion to reconsider, January 26, 1976

nv © &

Al7

A20

A21

A24

A26

Notice of Appeal, filed January 27, 1976

Order of the court of appeals, denying

stay of execution of writ pending appeal

(January 30, 1976)

Order of the court of appeals, reversing

the order granting the petition for a writ

of habeas corpus (April 28, 1976)

Order of the court of appeals denying the

petition for re-hearing (June 18, 1976)

Order of the court of appeals denying

"petitioner's motion that a decision by.

unpublished order be issued as a published

opinion" (July 9, 1976)

Opinion affirming petitioner's conviction

on direct appeal, People v. Browder, 13 Ill.

App. 3d 198, 300 Ed 5il (1973)

Opinion affirming the denial of state post-

conviction relief, People v. Browder, 29 Ill.

App. 3d 596, 331 N.E.2d 162 (1975)

Rule 35 of the United States Court of Appeals

for the Seventh Circuit

TABLE OF CASES, STATUTES, AND OTHER AUTHORITY

Adams v. United States, 130 U.S.App.D.C. 203,

399 F.2d 574 (1568)

Beck v. Ohio, 379 U.S. 81 (1964)

Bivens v. Six Unidentified Agents, 403 U.S. 388 (1971)

Boyd v. United States, 116 U.S. 616 (1886)

Brennan v. Midwestern United Life Insurance Co.,

450 F.2d 778 (7th Cir.

Brinegar v. United States, 338 U.S. 169 (1949)

Brown v. Illinois, 422 U.S. 590 (1975

Burnside v. Eastern Airlines, 509 F.2d 1127

(5th Cir. 1975)

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

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

Cline v. Hoogland, 518 F.2d 776 (8th Cir. 1975)

Colorado v. Springs Amusements, Ltd. v. Rizzo,

U.S uly 6, 197’

A27

A28

A30

A37

A38

A39

A49

A53

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

Davis v. Mississippi, 394 U.S. 721 (1969)

DeMarco v. United States, 415 U.S. 449 (1974)

Demers v. Brown, 343 F.2d 427 (lst Cir. 1965)

Edwards v. State of Louisiana, 496 F.2d 904

th Cir. 1974)

Ex Parte McCardle, 74 U.S. (7 Wall) 506 (1868)

Garrisson v. Patterson, 391 U.S. 464 (1968)

Gerstein v. Pugh, 420 U.S. 103 (1975)

Grasso v. Norton, 520 F.2d 27 (2d Cir. 1975)

Hicks v. Miranda, 422 U.S. 332 (1975)

Hodgson v. United Mine Workers, 473 F.2d 113

(D.C. Cir. 1972)

Holiday v. Johnson, 313 U.S. 342 (1941)

In re sgerersnting of M.B., 125 N.J. Super 115,

A. 3

Johnson v. United States, 333 U.S. 10 (1948)

Jones v. Superintendent, 465 F.2d 1091 (4th Cir. 1972)

Lego v. Twomey, 404 U.S. 477 (1972)

McDonald v. United States, 335 U.S. 451 (1948)

Mallory v. United States, 354 U.S. 449 (1957)

Marion v. United States, 404 U.S. 307 (1971)

N.L.R.B. v. Amalgamated Clothing Workers,

430 F.2d 566 (Sth Cir. 1970)

North v. Russell,

U.S. (1976)

People v. Daugherty, 324 Ill. 160, 154 N.E.907 {1927)

People v. Simmons, 330 Ill. 494, 161 N.E. 716 (1928)

Pierson v. Ray, 368 U.S. 547 (1967)

Pitchess v. Davis, 421 U.S. 482 (1975)

Polites v. United States, 364 U.S. 426 (1960)

Rose v. Hodges, 423 U.S. 19 (1975)

Rothman v. United States, 508 F.2d €48 (3d Cir. 1975)

16, 17

10, 12

22, 25

17, 18

Sadowski v. Bombardier, Ltd., 527 F.2d 1132

Gals 5) ;

Shear v. Richardson, 364 F.Supp. 43 (S.D. Ill. 1973)

Silk v. Sandoval, 435 F.2d 1266 (lst Cir. 1970)

Stanford v. Texas, 379 U.S. 476 (1965)

State v. Bribaliva, 111 Arix. 476, 533 P.2d 533 (1975)

Stirling v. Chemical Bank, 511 F.2d 1030 (2d Cir. 1975)

Stone v. Powell, U.S. (July 6, 1976)

Taylor v. United States, 286 U.S. 1 (1932)

United States v. Allen, 133 U.S.App.D.C. 84,

F. 87 (1

United States v. Dionisio, 410 U.S. 1 (1973)

United States v. Doe (Schwartz), 457 F.2d 895

(2d Cir. 1972)

United States v. Feinberg, 371 F.Supp. 1205

(N.D. Ill. 1974)

United States v. Greene, 139 U.S.App.D.Cc. 193

F. 3 (1970)

United States v. Indrelunas, 411 U.S. 216 (1973)

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

United States v. Martinez-Fuerte, U.S. (1976)

United States v. Robinson, 361 U.S. 220 (1960)

United States v. Santana, U.S. (1976)

United States v. United States District Court,

407 U.S. 297 (1972)

United States v. Watson, 423 U.S. 411 (1976)

Whiteley v. Warden, 401 U.S. 560 (1971)

Williams v. Overholser, 104 U.S.App.D.c. 18,

Wingo v. Wedding, 418 U.S. 461 (1974)

Wise v. Murphy, 275 A.2d 205 (D.C. App. 1971)

Wong Sun v. United States, 371 U.S. 471 (1963)

Zenith Radio Corp. v. Hazeltine Research Corp.,

U.S. 96

20, 21

2, 10,

17, 19,

17, 20

United States Constitution, Amendment IV

United States Constitution, Amendment XIV

28 U.S.C. §1291

28 U.S.C. §2253

Ariz. Rev. Stat. Ann. §13-1424

Idaho Code §19-625 (1975 supp.)

Ill. Rev. Stat. Ann. ch. 38, §122-1 et seq.

N.C. Gen. Stat. §15A-271 et seq.

Federal Rule of Appellate Procedure 4 (a)

Federal Rules of Civil Procedure

Rule 6

Rule 52

Rule 59

Rule 60(b)

United States Court of Appeals, Circuit Rules

First Circuit, Appendix B to Circuit Rules

Second Circuit, Rule .23

Fifth Circuit, Rule 21

Sixth Circuit, Rule 11

Seventh Circuit, Rule 35

Eighth Circuit, Rule 14

Ninth Circuit, Rule 21

Tenth Circuit, Rule 17

District of Columbia Circuit, Rule 13(c)

passim

5, 22, 23

American Law Institute, A Model Code of Pre-

Arraignment Procedure (1

Bator, Finality in Criminal Law and Federal Habeas

Corpus for State Prisoners, ?6 Harv. L. Rev. 441 (1963)

Cardozo, The Nature of the Judicial Process (1921)

Gardner, Ninth Circuit's Unpublished inions:

Denial of Equal Justice A.B.A.J. 24 (1975)

Haddad, Criminal Procedure and Habeas Corpus,

52 Chi. K. L. Rev. 295 (1975)

Hastings, The Seventh Circuit Plan for Publication

of inions -- A Continuing Experiment, 51 Ind. L. J.

366 (1576)

Report of the Chicago Bar Association Committee on

wep ats Court Congestion and Procedure, 56 Chi. Bar.

Weisgall, Stop, Search and Seize: The Emerging

Doctrine of Founded Suspicion, 9 Univ. San Fran.

L. Rev. 219 (1974)

20, 21

22, 24

15, 24

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

BEN EARL BROWDER,

Petitioner,

DIRECTOR, DEPARTMENT OF CORRECTIONS,

STATE OF ILLINOIS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Petitioner Ben Earl Browder respectfully prays

that a writ of certiorari issue to review the judgment of

the United States Court of Appeals for the Seventh Circuit

entered in this proceeding on April 28, 1976.

OPINIONS BELOW

None of the opinions in this case are reported.

The opinion of the district court granting the petition for

a writ of habeas corpus is reproduced infra at A3-Al6; the

order of the district court denying the respondent's motion

to reconsider is reproduced infra at A26.

The order of the court of appeals reversing the

decision of the district court is reproduced infra at A30-

A36. (The order of the court of appeals is noted in the

table of cases decided by unpublished opinion at 534 F.2d

330.) Rehearing was denied without opinion (A37).

Opinions in related state court proceedings are

reported in abstract form only: People v. Browder, 13 Ill.

App. 3d 198, 300 N.E.2d 511 (1973) (affirming conviction on

direct appeal), reproduced infra at A39-A48; People v. Browder,

29 I11.App.3d 596, 331 N.E.2d 162 (1975) (affirming denial

of state post-conviction relief), reproduced infra at A49~-A52.

JURISDICTION

The jurisdiction of this Court is invoked pursuant

to 28 U.S.C. §1254(1): The judgment of the court of appeals

was entered on April 28, 1976; re-hearing was denied on

June 18, 1976.

QUESTIONS PRESENTED

1. Did the court of appeals depart from the rule

of United States v. Robinson, 361 U.S. 220 (1960), that the

timely filing of a notice of appeal is “mandatory and juris-

dictional," when it held that it "need not consider" the

timeliness of a notice of appeal filed 128 days after entry

of the final appealable order, apparently assuming that

a motion to reconsider may be filed irrespective of the

strict 10 day limits of Federal Rule of Civil Procedure 59?

2. Where the incompetency of appointed defense

counsel has absolutely deprived petitioner, a state prisoner,

of an opportunity to raise and have adjudicated his Fourth

Amendment in the state courts either at trial, on direct

appeal, or through state collateral proceedings, and federal

relief to vindicate his unlawful arrest claim would not be

precluded by Stone v. Powell, U.S. (1976):

a. May police officers, consistent with the Fourth

Amendment, arrest all teen aged members of a family to deter-

b. Can there be “probable cause to arrest" absent

grounds to believe that a particular suspect has committed an

offense?

c. May police officers, consistent with the Fourth

Amendment, enter a dwelling place without a warrant of any

type in order to search for and "arrest for investigation"

all teen aged males found in the home, when there is ample

opportunity to have sought a warrant, where the facts known

to the police are inadequate to allow an arrest on sight,

and where the only possible justification for not seeking a

warrant is the knowledge that one would not be issued?

3. Assuming that the Fourth Amendment does not

prohibit warrantless, multiple suspect investigatory arrests,

did the Court of Appeals err in resolving in the first

instance disputed questions of fact, rather than remanding

to the district judge who had presided at an evidentiary

hearing?

4. May a United States Court of Appeals reverse

a decision of a district court in an unpublished and non-

citable opinion, when the case is not controlled by direct

precedent, involves a substantial question pertaining to

the protections of the Fourth Amendment, and where public

notice of the decision might encourage Illinois to follow

the lead of the American Law Institute and other states in

enacting a statute to protect its citizenry from warrantless

arrests for investigation?

CONSTITUTIONAL PROVISIONS, STATUTES, AND RULES INVOLVED

United States Constitution, Amendment IV:

The right of the people to be secure in their persons, houses,

papers and effects, against unreasonable searches and seizures,

shall not be violated, and no Warrants shall issue, except

upon probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched and the

person or things to be seized.

United States Constitution, Amendment XIV:

+ » + nor shall any state deprive any person of live, liberty,

or property, without due process of law... :

28 U.S.C. §2253, which provides in pertinent part:

In a habeas corpus proceeding before a circuit or district

judge, the final order shall be subject to review, on appeal,

by the court of appeals for the circuit where the proceeding is

mag. « «

Federal Rule of Civil Procedure 6(b), which provides

in pertinent part:

- - « [The court] may not extend the time for taking any action

under Rule 50(b), 52(b), 59)b), (da), and (e), and 60(b), except

to the extent and under the conditions stated in them.

Federal Rule of Civil Procedure 52(b), which provides

in pertinent part:

(b) Amendment. Upon motion of a party not later

than 10 days after entry of judgment the court may amend its

findings or make additional findings and may amend judgment

accordingly. The motion may be made with a motion for a new

trial pursuant to Rule 59...

Federal Rule of Civil Procedure 59, which provides

in pertinent part:

(a) Grounds. A new trial may be granted to all

or any of the parties and on all or part of the issues...

(2) in an action tried without a jury, for any of the reasons

for which rehearings have heretofore been granted in suits in

equity in the courts of the United States. ..

(b) Time for motion. A motion for a new trial shall

be served not later than 10 days after the entry of the judgment.

* * *

(ad) On Initiative of Court. Not later than 10

days after entry of judgment the court of its own initiative

may order a new trial for any reason for which it might have

granted a new trial on motion of a party. After giving the

parties notice and an opportunity to be heard on the matter,

the court may grant a motion for a new trial, timely served,

for a reason not stated in the motion. In either case, the

court shall specify in the order the grounds therefor.

(d) Motion to Alter or Amend a Judgment. A motion

to alter or amend the judgment shall be served not later than

10 days after entry of the judgment.

Federal Rule of Appellate Procedure 4(a), which

provides in pertinent part:

(a) Appeals in Civil Cases. In a civil case...

in which an appeal is permitted by law as of right from a

district court to a court of appeals the notice of appeal

required by Rule 3 shall be filed with the clerk of the district

court within 30 days of the date of the entry of the judgment

or order appealed from. . .

The running of the time for filing a notice of

appeal is terminated as to all parties by a timely motion

filed in the district court by any party pursuant to the

Federal Rules of Civil Procedure hereafter enumerated in this

sentence, and the full time for appeal fixed by this subdivision

commences to run and is to be computed from the entry of any

of the following orders made upon a timely motion under such

rules: (1) granting or denying a motion for judgment under

Rule 50(b); (2) granting or denying a motion under Rule

52(b) to amend or make additional findings of fact, whether

or not an alteration of the judgment would be required if the

motion is granted; (3) granting or denying a motion under

Rule 59 to alter or amend the judgment; (4) denying a motion

for a new trial under Rule 59. A judgment or order is entered

within the meaning of this subdivision when it is entered in

the civil docket. ..

Circuit Rule 35 (formerly Rule 28) of the United

States Court of Appeals for the Seventh Circuit, the "Plan for

Publication of Opinions of the Seventh Circuit," is set forth

in the appendix, infra at A53~-A57.

STATEMENT OF THE CASE

This case arises from the failure of Illinois --

y Y

either at trial, on direct appeal, or through state

collateral proceedings -- to have afforded petitioner

Counsel appointed by the state trial court to represent

petitioner, an indigent person, demonstrated a lack of

appreciation of the fact that the unlawfulness of an arrest

may require exclusion of its products. As the district court

noted (A9-Al0), the illegality of petitioner's arrest is

apparent from the trial court record. Although exclusion of

the fruits of the unlawful arrest had been sought by trial

counsel, the illegality of the arrest was not asserted as

a ground for exclusion. (A5-A6) Thus, the district court

held that "no reasonable tactical basis is apparent to justify

the failure to object" to the illegality of the arrest. (A9)

This finding was not challenged on appeal by the respondent.

2/ On direct appeal from his conviction, petitioner urged

the unlawful arrest issue as "clear error." The Illinois

Appellate Court refused to adjudicate the Fourth Amendment

issue, relying on prior decisions that trial counsel's lack

of appreciation of Fourth Amendment issues is an absolute

bar to appellate review. (A43) Petitioner's contention that

the intermediate appellate court had misapplied the state

waiver rule was rejected without opinion by the Illinois

Supreme Court, No. 46103, November 29, 1973. There, the

question had been framed as follows:

2. Is the Illinois waiver rule properly applied

when it denied a defendant a fair opportunity to

raise and have adjudicated on direct appeal his

Fourth Amendment claims, when the factual basis

for these claims is clear from the trial court

record? (Petition for Leave to Appeal at 3)

(filed as an exhibit to the petition for a writ

of habeas corpus in the district court)

3/ Afcxe. his conviction had been affirmed by the Illinois

Appellate Court, petitioner again sought to. raise and have

adjudicated the unlawful arrest issue in the state courts,

through the state post-conviction remedy, Ill. Rev. Stat.,

ch. 38, §122-l1 et seq. Relief was denied by the trial court,

a result affirmed by the Illinois Appellate Court (A51):

- « « Petitioner having argued in his direct

appeal that his arrest was illegal and that

all things flowing therefrom should have been

suppressed is now barred from any further

recoiusideration of that issue in post-convicticn

proceedings by the doctrine of res judicata.

Earl Browder a full and fair opportunity to raise and

~— Ee RE re oe eee —e

ve adjudicated his Fourth Amendment claim that his

dentification at a lineup and his alleged oral admission

re the tainted fruits of his brazenly unlawful arrest,

n arrest made during a warrantless investigatory dwelling

earch undertaken to seize suspects for "investigation of

When this issue was presented to the district

court, Browder's application for a writ of habeas corpus

as granted from facts apparent on the face of the state

trial record. (Al0) Rather than appeal this final order,

the respondent filed, long after expiration of the 10 day

period of Federal Rules of Civil Procedure 52 and 59, a

5 / ), pS aac

motion to reconsider. (A17-Al9’ Although the jurisdictionai

In the evening of January 31, 1971, four Chicago police

officers entered the Browder residence to arrest all of the

teen-aged males present. (Trial record at 163-165) The

charge was “investigation of rape." (Trial record at 54,

154, 233)

Q: And you arrested them all on the charge of rape?

A: Investigation of rape.

: Investigation of rape?

A: Yes, sir. (Trial record at 54)

The purpose of the arrests was to “clear up an investigation,"

(Trial record at 67), by exhibiting the suspects in a lineup

to see which one, if any, would be identified (A23):

Q: All right: Isn't it true, sir, that the

purpose behind your arrest of the teen aged

Browders was to bring them down to the station

house to place them in a line-up?

(An arresting officer): To see if they could be

identified by the victim. To see which one

would be identified.

Q: At the time you arrested both Browders you

didn't know which one, if either, would be

the one who would be identified?

A: That is correct, sir.

The officers claimed to have had ample opportunity to have

sought a warrant: “When I went to the Browder residence I

knew the gentlemen would be waiting for me." (Trial record at

170) Nonetheless, the search and seizure was made without

either an arrest or a search warrant. (Trial record at 192)

The final order granting the petition was entered on

tober 21, 1975; the motion to reconsider was filed and

basis for this motion was never disclosed, the district court

rejected petitioner's objections as to its lack of juris-

diction to consider the motion, stayed execution of the

writ, and set the matter for an evidentiary hearing on

the motion to reconsider. (A20) |

Testimony offered by the respondent at the

evidentiary hearing was at times unlikely, in conflict with

a contemporaneous arrest report, and contrary to testimony

given by the arresting officers at petitioner's exta”

What emerged as undisputed, however, is that at the time

of the arrest, the police did not know which of the persons

arrested would be identified in the lineup; the arrests

were made to determine which suspect, if any, would be

identified. (A23)

The district court denied the motion to reconsider,

6/ The respondent sought to justify the arrest on the basis

of information given to the arresting officers by the rape

victim. The first investigating officer, Stan Thomas,

testified that he had interviewed the rape victim on January

29, 1971, and was told by her that her assailant was known

to her as having the last name of "Browder," and living

in the 4000 block of West Monroe Street. (Transcript cf

evidentiary hearing at 16-19) Thomas, though, admitted

that he failed to act on this information for two days

(Ibid at 27), and no explanation was offered for this

incredible lack of zealousness.

The principal arresting officer, Martin Conroy, testified

that on January 31, 1971, he spoke with the rape victim,

and was told by her essentially what she had told Thomas

two days earlier. (Transcript of evidentiary hearing at

37) This contradicted the contemporaneous arrest report,

adopted by Conroy as true (A23), which states that the arrests

yre based on information received from a “known informer."

A23)

The respondent also sought to prove that only petitioner

and his brother had been arrested. (Transcript of evidentiary

hearing at 43) Several police officers had uniformly

testified at trial, however, that four persons were arrested

in the Browder residence -- the two Browder brothers, and

two other teenage males who happened to be present.

finding that “the writ of habeas corpus was seeperiy issued

on October 21, 1975." (A26}) Notice of appeal was filed the

next day (A27); specified as the orders under review were the

order denying the motion to reconsider, and the order of

October 21, 1975, granting the habeas corpus petition. (A27)

/ Browder was released from custody after a stay had

been denied by a panel of the Seventh Circuit. (A28-AZ29) A

different panel subsequently reversed the decision of the

district court, holding that the multiple suspect investigatory

arrest was lawful (A36), and stating that it need not “consider

whether there was a timely notice of appeal.” (A34 n. 2)

Re-hearing was denied without opinion. (a37)~

In silent testament of the fact that no court or

commentator has suggested that the Fourth Amendment allows

a warrantless arrest of several suspects to determine which

one should be charged, the Seventh Circuit has chosen to

invoke its rule relating to the disposition of appeals in

unpublished orders, and thereby to withhold its opinion in

this case from public scrutiny: Petitioner's motion that

the decision in this case be re-issued as a published opinion

was denied without explanation on July 9, 1976. (A38)

7/ The district court subsequently quashed the writ, and

petitioner surrendered to the custody of the respondent.

(Petitioner's application for a stay, made while his

petition for re-hearing was pending in the court of appeals,

was denied by Mr. Justice Stevens on May 8, 1976, No. A980.)

I, IF THE COURT OF APPEALS MAY IGNORE THE

"MANDATORY AND JURISDI“TIONAL" REQUIREMENT

THAT A NOTICE OF APPEAL BE TIMELY FILED, THEN

IT MAY DISPENSE WITH ANY LIMITATIONS ON ITS

JURISDICTION TO PRODUCE A DESIRED RESULT

In order to send petitioner Ben Browder back to

prison, it was necessary for the Seventh Circuit to ignore

the rule that the timely filing of a notice of appeal is

"mandatory and jurisdictional.” United States v. Robinson,

361 U.S. 220, 228 (1960). If this departure from the

accepted and ordinary rules of appellate jurisdiction is

allowed to stand, more will be lost than the liberty to which

Browder is entitled: If the court of appeals may ignore

the “mandatory and jurisdictional" requirement that a notice

of appeal be timely filed, then the court of appeals may

dispense with any limitations on its jurisdiction to produce

a desired result. This, however, "is not the judicial process

as we know it in our law." Cardozo, The Nature of the Judicial

Process, 135 (1921). The departure of the Seventh Circuit

from the accepted and ordinary rules of appellate jurisdiction

therefore requires correction by this Court.

1. An appeal in a habeas corpus proceeding lies

from from the final order, 28 U.S.C. 92289. The final

order in this case was entered on October 21, 1975, when the

district court granted petitioner's application for a writ

of habeas corpus, and directed that the writ be executed if

petitioner had not been re-tried-within 60 days. The

8/ Cc are 28 U.S.C. §2253 (appeal lies from “final order)

with oto S.C. §1291 (appeal lies from "final decision").

CE. petead States v. Indrelunas, 411 U.S. 216 (1973).

9 The conditional nature of the order of October 21, 1975

id not detract from its finality. E.g., Williams v.

Overholser. 104 U.S.Apn.D.C. 18. 259 F.2d 175 (1958): Edwards

notice of appeal from this order was filed on January 27,

1976 (A27), hopelessly beyond the 30 day “mandatory and

jurisdictional” limit of Federal Rule of Appellate Procedure

4(a). Thus, the court of appeals lacked the power to reverse

the final order granting the petition: "Jurisdiction is

power to declare the law, and when it ceases to exist, the

only function remaining to the court is that of announcing

the fact and dismissing the case." Ex Parte McCardle, 74 U.S.

(7 Wall) 506, 514 (1868).

2. The notice of appeal (A27) also specified as

under review an order entered on January 26, 1976. That

order (A26) denied a motion te reconsider, and directed

that the writ be executed without further opportunity to

the state to re-try petitioner. From a cryptic seotabee””

it appears that the court of appeals assumed that its juris-

diction arose from this order. Such an assumption, however,

is contrary to prior decisions of this court, as reflected

in uniform decisions among the circuits.

a. The motion to reconsider (Al17-Al9) was

not filed within the 10 day limits of Federal Rule of Civil

Procedure 52 or 59, and therefore did not toll the time to

appeal. See Federal Rule of Appellate Procedure 4(a); United

10/ A34 n. 2:

Respondent contends that even if there was no

probable cause for the arrest, the confession

would be admissible under Brown v. Illinois,

422 U.S. 590 (1975). In light of our decision

in the instant case the court need not consider

that issue nor need it consider whether there

was an untimely appeal as to this issue. (emphasis

supplied)

Apparently, the court of appeals held that the notice of

appeal was timely to bring up for review the legality of

the arrest, the issue upon which reconsideration had been

sought. (Al8) Thus, it appears that the court of appeals

concluded that the appeal from the denial of the motion to

reconsider brought up for review the merits of the deter-

mination that the arrest was unlawful.

11/

States v. Robinson, 361 U.S. 220, 229 n. 13 (1960).

b. At best, the motion to reconsider was a motion

under Federal Rule of Civil Procedure 60(b) -- a jurisdictional

theory expressly disavowed by the respondent in the court

below. Nor did the court of appeals treat the case as

an appeal from the denial of a Rule 60(b) motion, where review

is limited to determining if the district court abused its

discretion in refusing to upset the finality of its earlier

decision. E.g., Polites v. United States, 364 U.S. 426,

436 (1960). “3

c. The order of January 26, 1976 directing that

the writ be executed did not provide a fresh opportunity

to appeal from the earlier order which had granted the

petition: "That order does no more than direct execution

of the prior final judgment. Given the finality of the

former, the latter order putting iis alternative proviso

into operation cannot be error." Edwards v. State of Louisiana,

496 F.2d 904, 906 (5th Cir. 1974); Grasso v. Norton, 520 F.2d

27, 38 (2d Cir. 1975). Just as the district court could not

11/ See also Silk v. Sandoval, 435 F.2d 1266 (lst Cir. 1970);

Stirling v. Chemical Bank, 51l F.2d 1030 (2d Cir. 1975);

Rothman v. United States, 508 F.2d 648 (3d Cir. 1975);

Burnside v. Eastern Airlines, 519 F.2d 1127 (5th Cir. 1975);

Sadowski v. Bombardier, Ltd., 527 F.2d 1132 (7th Cir. 1975);

Cline v. Hoogland, 518 F.2d 776 (8th Cir. 1975).

12/ In the court of appeals, respondent asserted that the

motion to reconsider “was not filed under Rule 60," noting

that “it is doubtful whether Rule 60 even applied in habeas

cases." Reply Brief of Respondent-Appellant at 3 n. l.

13/ See also Demers v. Brown, 343 F.2d 427 (lst Cir. 1965);

Rothman v. United States, 508 F.2d 648 (3d Cir. 1975);

Burnside v. Eastern Airlines, 509 F.2d 1127 (5th Cir. 1975);

Brennan v. Midwestern United Life Insurance Co., 450 F.2d

778 (7th Cir. 1971); Cline v. Hoogland, 518 F.2d 776 (8th

Cir. 1975); Hodgson v. United Mine Wrokers, 473 F.2d 113

(D.C. Cir. 1972).

maintain “continuing supervision over a retrial conducted

pursuant to a conditional writ granted by the habeas court,"

Pitchess v. Davis, 421 U.S. 482, 490 (1975), the district

court had no power to alter the finality of its order

granting a conditional writ after expiration of the 10

day period for serving a Federal Rule of Civil Procedure 59

motion.

As set out above, there is no basis to support the

jurisdiction of the court of appeals to reverse the final

order entered 128 days prior to the filing of a notice of

appeal. Certiorari should therefore be granted to correct

this radical departure of the court of appeals from the

accepted and ordinary rules of appellate jurisdiction.

II. WARRANTLESS ARRESTS FOR INVESTIGATION, A

POLICE PRACTICE REPEATEDLY CONDEMNED BY THIS

COURT, ARE LEGITIMIZED AND ENCOURAGED BY THE

DECISION IN THIS CASE

In the evening of January 31, 1971, police officers

searched petitioner's dwelling to arrest for “investigativna

of rape" (Al0) all teen aged males who happened to be ~.

sent; the admitted purpose of the multiple suspect arrests

was “to see which one would be identified." (A23) The

basis for this invasion upon the sanctity of the home and

the dragnet arrests was "information" that one of the

14/

persons arrested had committed a rape two days before.

14/ The arrest report (A24), prepared at the time of the

arrest, states that four suspects were arrested on the basis

of “information from a known informer." Five years later,

at the evidentiary hearing in the district court, the

principal arresting officer stated that only two persons

had been arrested, and that the arrests were based on infor-

mation received from the rape victim. (A21)

a ee

- — a

The warrantless search and seizure was made without exigent

15/

circumstances, and was upheld by the Seventh Circuit.

The decision in this case resurrects the unbridled

authority of the general warrant, and “place(s]} the liberty

of every man in the hands of every petty officer,“ in

conflict with prior decisions of this Court. If allowed to

stand, the decision in this case encourages gross violations

17/

of Fourth Amendment rights, and requires review by this Court.

15/ The arresting officers claimed to have telephoned ahead,

and knew "that the gentlemen would be waiting for me." (Trial

transcript at 170)

16/ Stanford v. Texas, 379 U.S. 476, 481 (1965), quoting from

Boyd v. United States, 116 U.S. 616, 625 (1886).

17/ Federal relief on the Fourth Amendment issue is not pre-

cluded by Stone v. Powell, __'U.S. ___ (July 6, 1976). The

record in this case demonstrates that because of the negligence

or inadvertence of appointed defense counsel, petitioner was

“denied an opportunity for a full and fair litigation of

that claim at trial and on direct review." U.S. at ___— in. 37.

Although appointed defense counsel sought to exclude from

use at trial the fruits of the unlawful arrest, he never

identified the unlawfulness of the arrest as a ground for

suppression. Nor did appointed defense counsel seek to gain

sympathy from the jury from the police misconduct -- final

argument was waived. (Trial record at 278)

The absence of any tactical basis for the default of trial

counsel was recognized by the district court. (A6-A8) This

default deprived petitioner of an opportunity to raise the

Fourth Amendment issue on direct appeal, or through the

state collateral remedy. See ante at 6 n. 2, 3.

Under these circumstances, there has been a "failure

of process .. . because the totality of the state procedures

did not furnish the prisoner with a fair chance to litigate

his case." Bator, Finality in Criminal Law and Federal Habeas

Corpus for State Prisoners, 76 Harv. L. Rev. 441, 455 (1963).

Because this “failure of process" cannot be fairly attributed

to petitioner, federal relief on the Fourth Amendment issue

is not precluded by Stone v. Powell, supra.

A. THE IMPORTANCE OF THE ISSUE

This case involves one of the most important

judgments made thousands of time daily in the nation's criminal

justice systems: Whether there are reasonable grounds to make

a warrantless arrest.

When Ben Browder, his brother, and two other "sus-

pects" were arrested for "investigation of rape," the police

did not know which suspect, if any, would be charged with

the offense committed two days before. (A23) The district

judge applied the ordinary meaning of probable cause to

arrest, i.e., that there be reasonable grounds to believe

that the arrestee had committed a crime, and held that Ben

Browder had been unlawfully arrested. (Al0) The Seventh

Circuit did away with “offender probable cause,” and

held that several persons may be lawfully arrested whenever

the police suspect that the offender sought will be caught

19/

up in such a dragnet.

18/ "Offender probable cause refers to the probability that

a particular individual has committed an offense. It is

necessary for arrest but not, for instance, for issuance of

a search warrant. See, e.g., People v. Daugherty, 324 Ill.

160, 154 N.E. 907 (1927); People v. Simmons, 330 Ill. 494,

161 N.E. 716 (1928)." Haddad, Criminal Procedure and Habeas

Corpus, 52 Chi. K. L. Rev. 294, 299 n. 32 (1975).

19/ Contrary to the accepted and ordinary rules of appellate

procedure, the court of appeals resolved in the first instance

the disputed facts relating to the precise information known

to the police at the time of arrest: What the court below

described as “slight differences in the testimony of Officer

Conroy at the evidentiary hearing from the arrest report and

the trial,” (A36) were rejected as inconsequential, and

the court of appeals held that "the police had probable

cause to believe that the assailant was either Ben Earl

Browder or his brother Tyrone Browder, between whom a

physical resemblance was noted." (Ibid) This “physical

resemblance," though, overlooked the fact that at the time

of his arrest, only petitioner had his arm in a cast, while the

rape victim had failed to include this characteristic in

her description of her assailant. The district court could

well have resolved these “slight differences" in testimony

in favor of petitioner, and concluded that the police did

not have nrohahie canesa fn heliawea that the aeeailant eniinh+

—_—— ———— ee - — - ———

If allowed to stand, the decision in this case

leaves the Fourth Amendment as “little more than chetoric.*@

By holding that arrests for investigation were based on

"probable cause," and therefore lawful, the Seventh Circuit

has simultaneously eliminated the deterrent of exclusion

while rendering police officers immune for damages for

investigative arrests under the "good faith" defense of

Pierson v. Ray, 368 U.S. 547 (1967). This result signals

the continuation of unbridled arrests for investigation,

and presages "wholesale intrusions upon the personal security

of our citizenry," Davis v. Mississippi, 394 U.S. 721, 726

(1969). The importance of this issue requires review by

this Court.

B. CONFLICT WITH PRIOR DECISIONS OF THIS COURT

The investigatory arrests approved in this case

were made to round up suspects to see if one of them would

be identified in a line-up. While this Court has suggested

19/ (cont)

These “slight differences in the testimony of Officer

Conroy" were for resolution by the cistrict court: "Appellate

courts must constantly have in mind that their function 1s

not to decide factual issues de novo." Zenith Radio Corp.

v. Hazeltine Research Corp., 395 U.S. 100, 123 (1969).

". . ,factfinding is the basic responsibility of district

courts, rather than appellate courts, and... the Court

of Appeals should not have resolved in the first instance

this factual dispute which had not been considered by the

District Court," DeMarco v. United States, 415 U.S. 449, 450

n. (1974). This is especially true in habeas corpus cases,

where Congress has mandated that factual questions be resolved

by a judge who has himself heard the testimony. Holiday v.

Johnson, 313 U.S. 342 (1941); Wingo v. ‘Wedding, 418 U.S. 4ol

(1974).

20/ Bivens v. Six Unidentified Agents, 403 U.S. 388, 415 (1971)

Burger, C.J., dissenting opinion)

@16-

that investigative detentions may be permissible in "narrowly

circumscribed circumstances," Davis v. Mississippi, 394 U.S.

721, 728 (1969), the Court has repeatedly rejected invitations

to approve warrantless arrests for investigation, as approved

by the Seventh Circuit in this case.

21/

The “practical compromise" that warrantless

arrests are permissible requires that such arrests be based

on reasonable grounds to believe that the arrestee had

22/

committed a crime. I.e., arrests must be based on

probable cause, and may not be made to obtain probable cause.

In Wong Sun v. United States, 371 U.S. 471 (1963),

a description of a suspect as "Blackie Toy," operator of

a laundry “somewhere on Leavenworth Street," 371 U.S. at

481, was held insufficient to justify the arrest of a

particular Toy: “Such information is no better than the

wholesale or 'dragnet' search warrant." 371 U.S. at 481 n. 9.

But under the reasoning of the Seventh Circuit in this case,

the information available in Wong Sun would have justified

an arrest of all leundry operators named Toy: In this

case, the police at best knew that the offender sought

was named Browder who lived in the 4000 block of West Monroe

Street in Chicago; this information was held sufficienti to

justify the wholesale arrest of two teen aged male persons

named Browder and two other teenagers, who happened to be

be found by the police in the Browder residence in the 4000

21/ Gerstein v. Pugh, 420 U.S. 103, 113 (1975).

22/ £E.g., Carroll v. United States, 267 U.S. 132, 161 (1925);

Brinegar v. United States, 338 U.S. 160, 175-176 (1949);

Beck v. Ohio, 379 U.S. 81, 91 (1964); Marion v. United States,

404 U.S. 307, 320 (1971); United States v. Watson, 423 U.S.

411, 431 n. 4 (Powell, J., concurring).

23/ See Mallory v. United States, 354 U.S. 449, 456 (1957);

Johnson v. United States, 333 U.S. 10, 17 (1948); Henry v.

United States, 361 U.S. 98 (1959); Gerstein v. Pugh, 420 U.S.

732 #1907 ww» 91 £10761 PE Geamcs 3 8 TFTIMinaia aogy 1 @ Bon (41075).

block of West Monroe Street.

The wholesale arrests of the two Browders and the

two other persons who happened merely to be present highlights

the flaw in the expansive re-definition of “probable cause to

arrest" adopted by the Seventh Circuit; certiorari should be

granted to review the contraction of the Fourth Amendment

apparent in this case.

C. A SUBSTANTIAL UNRESOLVED CONSTITUTIONAL QUESTION

The greatest vice of the investigatory arrests

encouraged by the decision in this case is the unfettered

discretion vested in the police to enter dwellings to make

arrests "to clear up an investigation." If allowed to stand,

this rule reads the warrant clause out of the Fourth Amend-

ment, and “would obliterate one of the most fundamental

distinctions between our form of government, where officers

act under the law, and the police state, where they are the

law." Johnson v. United States, 333 U.S. 10, 17 (1948).

The police had ample opportunity to seek a

warrant prior to embarking on their expedition to the Browder

residence. The offense under investigation had been reported

on Janaury 29, 1971; two days had elapsed before the police

began to act on the commen ° ummmeeed obtained

immediately after the offense. Warrants, however, were

neither sought nor obtained.

24/ The arrest was made on January 31, 1971, apparently on

the basis of information obtained by the police two days

before, on January 29, 1971. (Transcript of evidentiary

hearing at 17-19) No explanation was offered for the

delay in acting on this information, if in fact it was

received on January 29, 1971; apparently, the investigation

atannsA An Tent aeir 9O4K an mre tanvianusele ean.rAmmanraa

1. If, instead of searching the Browder residence

for a person thought to have committed an offense, the police

were searching for physical evidence of that offense, it is

clear that a warrant would have been required. E.g., McDonald

v. United States, 335 U.S. 451 (1948).

2. Prior to embarking on their expedition to the

Browder residence, the police knew “that the gentlemen would

be waiting for me." (Trial record at 170) Thus, “there was

no probability of a material change in the situation during

the time necessary to secure [a] warrant." Taylor v. United

States, 286 U.S. 1, 6 (1932). Nor can the absence of a

warrant be justified by any need to prevent the destruction

of evidence. See United States v. Jeffers, 342 U.S. 48 (1951);

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

New Hampshire, 403 U.S. 443, 460-464 (1971).

3. The physical description available to the police

was too vague to allow an arrest "on sight,” as in United States

v. Watson, 423 U.S. 411 (1976). The offenders sought had been

described only as "two black males, one light complected and

one dark complected, both wearing brown jackets and in their

late teens." (Transcript of evidentiary hearing at 9) No

height ar weight description had been obtained. (Ibid at 12)

Thus, the police could not maintain surveillance of the Browder

residence, and arrest a suspect when he emerged -- essential

to their mission was the entry into the dwelling place, and

the search for "suspects." Compare United States v. Santana,

U.f. 9 (1976) (Stevens, J., concurring).

4. The only warrant that the police could have obtained

would have been a general warrant, authorizing the arrest of

all teen aged males either named Browder or found to be in the

Browder residence in the 4000 block of West Monroe Street. An

application for such a general warrant would have been refused,

Wong Sun v. United States, 371 U.S. 471, 481 n. 9 (1967);

Whiteley v. Warden, 401 U.S. 560 (1971).

If, as the court of appeals held, petitioner was

lawfully seized from his dwelling, the warrant clause of the

Fourth Amendment is "dead language," United States v. United

States District Court, 407 U.S. 297, 315 (1972). Certiorari

should be granted to resulve this question, a question

repeatedly reserved by the Court, e.g., United States v.

Watson, 423 U.S. 411 (1976).

D. CONFLICT WITH DECISIONS IN OTHER JURISDICTIONS

This Court has left open the question of under what

circumstances, if any, investigative detentions are permissible

under the Fourth Amendment. United States v. Dionisio,

410 U.S. 1, 11 (1973). In conflict with the Court of Appeals

25/

for the District of Columbia, the Seventh Circuit has

answered this question by holding that investigative

detentions are permissible whenever the police wish to clear

up an investigation.

A vastly different balance has been struck in other

26/

jurisdictions, as reflected in Article 170 of the American

25/ Adams v. United States, 130 U.S.App.D.C. 203, 399 F.2d 574

(1968); United States v. Allen, 133 U.S.App.D.C. 84, 408 F.2d

1287 (1969); United States v. Greene, 139 U.S.App.D.C.

429 F.2d 193 (1970) ’ pp-D.C. 193,

26/ E.g. Wise v. Murphy, 275 A.2d 205 (D.C.App. 1971) (en

banc); In re Fingerprinting of M.B., 125 N.J. Super 115,

309 A.2d 3 (1973); State v. Bribalva, 111 Ariz. 476, 533 P.2d

533 (1975). See also Ariz. Rev. Stat. Ann. §13-1424; Idaho

Code §19-625 (1975 supp); N.C. Gen. Stat. §15A-271 et seq.

Law Institute, A_Model Code of Pre-Arraignment Procedure (1975). III. CERTIORARI SHOULD BE GRANTED TO REVIEW THE

BURGEONING TREND TOWARDS "SECRET LAW" IN

THE UNITED STATES COURTS OF APPEALS

Article 170 of the Model Code sets out a procedure

for an “order to appear for identification procedures." The

The decision in this case made new law in the Seventh

salient feature of the model statute is the requirement for

Circuit, and is contrary to the weight of authority in other

prior authorization by a judicial officer, based upon a oO et een or

28/ jurisdictions. See ALI, A Model Code of Pre-Arraignment

detailed showing of articulated facts. This "independent,

Procedure (1975), 460-462. Nonetheless, the decision in this

neutral, and detached judgment," North v. Russell, U.S.

case is an “unpublished order," and may not be cited to the

P (1976) is lacking in the procedure sanctioned by

Seventh Circuit or to any district court in that circuit as

the Seventh Circuit.

precedent. E.g., Shear v. Richardson, 364 F.Supp. 43, 44 n.1l

"The Fourth Amendment imposes limits on search and

(S.D. Ill. 1973); United States v. Feinberg, 371 F.Supp.

seizure powers in order to prevent oppressive interferences

1205, 1214 n. 9 (N.D. Ill. 1974). Hicks v. Miranda, 422 U.S.

by enforcement officials with the privacy and personal security

332 (1975) teaches that police officers may rely on the

of individuals." United States v. Martinez-Fuerte, U.S.

disposition of this case, and continue to conduct warrantless,

P (1976). The decision in this case removes those

multiple suspect investigatory arrests. Such reliance would

limits by creating a "hunting license" for investigative arrests.

constitute "good faith," and afford the officers impunity

Little reminder is needed that an arrest "is abrupt, is

from any action for damages. Pierson v. Ray, 368 U.S. 547,

effected with force or the threat of it, and often in demeaning

(1967). This anomalous result, which insulates from public

circumstances," United States v. Dionisio, 410 U.S. 1, 10 (1973),

scrutiny the novel view of the Fourth Amendment extant in

quoting from United States v. Doe (Schwartz), 457 F.2d 895, 898

the Seventh Circuit, but allows police officers to rely on

(2d Cir. 1972). Certiorari should be granted, lest the

this broad licence to undertake investative arrests, is the

Fourth Amendment be mere precatory language,

result of the Seventh Circuit's "plan for publication of

opinions," set out in current Circuit Rule 35, reproduced at

28/ Section 170.2(6) of the Model Code requires than an appli- AS3~A57.

cation for an order for nontestimonial identification be The “plan for publication" of the Seventh Circuit,

supported by one or more affidavits showing

(a) there is reasonable cause to believe that en like its counterpart in the other circuits, arose from a

offense specifically described in the application has been recommendation of the Judicial Conference. See Hastings

committed;

(b) there are reasonable grounds to suspect that The Seventh Circuit Plan for Publication of Opinions -- A

the person named or described in the affidavit may have a — ,

committed the offense and it is reasonable in view cf the Continuing Experiment, 51 Ind. L.J. 366 (1976). Common to

seriousness of the offense to subject him to the specific

identification procedures set forth in the application;

all of these plans is a procedure for adjudicating an appeal

ee me eel a

a a ee ee ee —_— ——

parties and available to this Court in evaluating requests for

further review. E.g., Rose v. Hodges, 423 U.S. 19 (1975),

where this Court recognized and resolved an intra-circuit

conflict through reference to “unpublished opinions." 423

U.S. at 24 n. 2 (Brennan, J., dissenting). ‘

In all circuits other than the Tenth circest”

"unpublished opinions" may not be cited as precedent. In

the Fifth and Eighth ree only affirming orders

may be «isposed of in an “unpublished opinion." In the

First, Seventh, Ninth, and Tenth meniie” publication

is required whenever the decision appealed from is reported;

but if the decision appealed from is unreported, then the

court of appeals, as in this case, is free to reverse in an

“unpublished opinion." In the remaining saiaateia: "eae an

_ “unpublished opinion" rule has been aie" the

court of appeals may reverse even a reported district court

decision in an “unpublished opinion."

A recent addition to the “unpublished opinion" rule

of the Seventh Circuit is a provision allowing "any person"

to request that a decision by unpublished order be re-issued

as a published opinion; petitioner made such a motion in this

case, and the motion was denied without explanation. (A38)

29/ Rule 17(c) of the Tenth Circuit allows citation of un-

published opinions, and requires counsel to supply opposing

counsel with a copy of the unpublished opinion.

30/ Fifth Circuit Rule 21; Eighth Circuit Rule 14.

31 First Circuit, Appendix B to Circuit Rules; Seventh Circuit,

ule 35(c); Ninth Circuit Rule 21(f); Tenth Circuit, Rule 17(g).

32/ Neither the Third nor the Fourth Circuits have apparently

promulgated a formal rule dealing with disposition of appeals

in unpublished orders. In the Fourth Circuit, however, pro

on toe

“2A Te all Le haps CE

This case therefore provides the Court with a

needed opportunity to review the propriety of these “un-

published opinion" rules, to review the conflict between the

rules of the several circuits as to whether it is permissible

to reverse in an unpublished opinion, and to halt the

purgeoning trend towards “secret law."

1. The effect of not publishing the opinion in this

case is to withhold from public scrutiny the view of the

Seventh Circuit that warrantless arrests for investigation are

not prohibited by the Fourth Amendment. This result had

not been reached by the Seventh Circuit in any prior case,

and, as reflected in the opinion, there is no direct pre-

cedent supporting the power of the police to arrest, without

warrants, several suspects to determine whom they should

charge. See A34-A36. The weight of authority, in fact, is to

the contrary. See ALI, A Model Code of Pre-arraignment Pro-

cedure (1975), 460-462. Exposing the minority view of the

Seventh Circuit to public scrutiny may well result in the

states within that circuit adopting statutes to protect

their citizenry from unregulated investigative arrests; even

if such arrests are not prohibited by the Fourth Amendment,

the states may of course establish a higher standard, e.g.,

Lego v. Twomey, 404 U.S. 477, 480 (1972), but the need for

a higher standard is unknown if the decision in this case is

withheld from publication.

2. The problems inherent in disposition of an appeal

by “unpublished order” is not limited to this case, nor to

the Seventh Circuit. See, e.g., Report of the Chicago Bar

Association Committee on Appellate Court Congestion and Pro-

cedure, 56 Chi. Bar. Rec. 16, 20-21 (1974); Haddad, Criminal

Pie

n. 29 (1975); Weisgall, Stop, Search and Seize: The Emerging

Doctrine of Founded Suspicion, 9 Univ. San. Fran. L. Rev.

219, 253-254 (1974); Gardner, Ninth Circuit's Unpublished

Opinions: Denial of Equal Justice? 61 A.B.A.J. 1224 (1975).

3. In contrast to the summary disposition rules of

the Fifth and Eighth Circuits, the rule of the Seventh Circuit

allows, as in this case, a reversal absent published opinion.

Mr. Justice Brennan recently observed that affirming without

opinion is a procedure fraught with difficulties, Colorado

Springs Amusements, Ltd v. Rizzo, U.S. (July 6, 1976)

(Brennan, J., dissenting from denial of certiorari). These

difficulties are even more pronounced when, as here, a

decision is reversed without published opinion.

4. As applied in this and other cases, the effect

of the “unpublished opinion" rule is to allow a court of

appeals discretionto decide which appeals it will decide on

their merits. Assuming that a court has jurisdiction over

a case, any adjudication is an adjudication on the merits,

and entitled to precedential effect. See Hicks v. Miranda,

422 U.S. 332, 344 n. 14 (1975). This is recognized by the

Tenth Circuit, in its rule 17(c) which allows citation of

unpublished opinions. But absent such a provisions, the

"unpublished opinion" rules allow a court of appeals to

decide which of its decisions will have precedential effect,

and thereby vests a court of appeals with the power to

determine which appeals it will decide, a power lacking in

our system, Garrisson v. Patterson, 391 U.S. 464 (1968).

5. A potential evil of the “unpublished opinion"

rules is that they allow the courts of appeals “to avoid

making a difficult or troublesome decision or to conceal |

Workers, 430 F.2d 966, 972 (5th Cir. 1970) (Brown, C.J.)

This may well be the justification for withholding the opinion

in this case from publication.

For these reasons, certiorari should be granted

to review the propriety of “unpublished opinion" rules, to

review the conflict between the rules of the several circuits

as to whether it is permissible to reverse in an unpublished

opinion, and to halt the burgeoning trend towards "secret

law."

CONCLUSION

For the reasons above stated, petitioner prays that

a writ of certiorari issue to review the judgment of the United

States Court of Appeals for the Seventh Circuit entered in this

proceeding.

b A NA v0

Kenneth N. Flaxman

5549 North Clark Street

Chicago, Illinois 60640

(312) 728-3525

John T. Moran

407 Civic Center

Chicago, Illinois 60602

ATTORNEYS FOR PETITIONER

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.