Reply Brief — Browder v. Director, Department of Corrections

RECEIVED

OcT 25 1977

OFFICE OF THE CLERK

SUPREME COURT, U.S.

. IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

No. 76-5325

BEN EARL BROWDER, Petitioner,

DIRECTOR, DEPARTMENT OF CORRECTIONS

‘OF ILLINOIS, Respondent.

REPLY BRIEF OF PETITIONER BEN EARL BROWDER

Kenneth N. Flaxman

5549 North Clark Street

Chicago, Illinois 60640

(312) 728-3525

‘Attorney for Petitioner

Of Counsel:

John T. Moran

John M. Kalnins

Thomas R. Meites

RECEIVED ‘ ‘

Offire of the Public Defender | ocr 2g 197

OFF. or i.e CLERK

SUPREMS ‘Cau ‘RT, US |

407 CIVIC CENTER |

CHICAGO, ILLINOIS 60602

(312) 443-6350

JAMES J. DOHERTY

Public Defender

October 27, 1977

Office of the Clerk

Supreme Court of the United States

Washington, D.C. 20543

att: Ms. June Hoffman

re: Browder v. Director, No,76-5325

Dear Ms. Hoffman,

Kenneth Flaxman has asked me to send the following errata

sheet in connection with the reply brief delivered to your

office on October 26, 1977.

l. The line concluding page 3 should contain the

word "timely" at its end. This line should

read as follows: '

3

be corrected on appeal, but only if notice of appeal was timely.

2. The first word of the first line on page 29

("These") should not be capitalized.

3. 12 lines were omitted from the beginning of

the material starting on page 35. The material

to be inserted is attached to this letter.

Z,

fi JY ,

‘7

Very, trdly yoseg// , 2

MMM “i ht Ab: [er

q © ° . 7

74 John M. Kalnins

aaa Public Defender

cc: Raymond McKoski, Esq.

JMK:so

INDEX

INTRODUCTION

I. THE COURT OF APPEALS LACKED

JURISDICTION TO REVERSE THE FINAL

ORDER OF THE DISTRICT COURT

II. A COURT OF APPEALS MAY NOT

REVIEW FACTUAL ISSUES DE NOVO

III. THE SEIZURE OF PETITIONER'S

WAS CONTRARY TO THE FOURTH AMENDMENT

IV. THE WARRANTLESS SEARCH OF PETITIONER'S

DWELLING WAS CONTRARY TO THE FOURTH AMENDMENT

V. HABEAS CORPUS RELIEF IS PRECLUDED

BY NEITHER STONE v. POWELL, 428 U.S. 465

(1976) NOR BY WAINWRIGHT v. SYKES,

U.S. (1977)

CONCLUSION

TABLE OF AUTHORITIES

Accarino v. United States, 179 F.2d 465

(D.C. Cir. 1949)

Adickes v. Kress, 398 U.S. 144 (1970)

Aguilar v. Texas, 378 U.S. 108 (1964)

Alderman v. United States, 394 U.S. 165 (1969)

Amos v. United States, 255 U.S. 313 (1921(

Aunt Mid, Inc. v. Fjell-Orange Lines,

458 F.2d 721 (7th Cir. 1972)

Beasley v. United States, 491 F.2d 687

(6th Cir . 1974)

Beck v. Ohio, 379 U.S. 89 (1964)

{jo

12

18

28

37

Blackledge v. Perry, , U.S. , 97 S.Ct. 1621

(1977)

Bostwick v. Brinkerhof, 106 U.S. 1 (1882)

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

Braden v. 30th Judicial Circuit Court of ©

Kentucky, 410 U.S. 484 (1973)

Bumper v. North Carolina 391 U.S. 543 (1968)

Calero-Toledo v. Pearson Yacht Leasing Co.,

416 U.S. 663 (1974)

Camara v. Municipal Court, 387 U.S. 523 (1967)

Commonwealth v. Irwin, 83 Mass. 587 (1861)

Commonwealth v. Reynolds, 120 Mass. 190 (1876)

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

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

Davis v. United States, 411 U.S. 233 (1973)

Dayton Board of Education v. Brinkman,

U.S. , 97 S.Ct. 2766 (1977)

Dorszynski v. United States, 418 U.S. 424 (1974)

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

Fahy v. Connecticut, 375 U.S. 85 (1963)

Flint v. Howard, 464 F.2d 1084 (lst Cir. 1972)

Francis v. Henderson, 425 U.S. 536 (1976)

Furrer v. Ferris, 145 U.S. 132 (1892)

Gates v. Henderson, F.2d (2d Cir.,

No. 76-2065, August 19, 1977) (in banc)

Gatewood v. United States, 209 F.2d 789 (D.C.

Ciz. 1953)

18, 19

16-17,

34

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

George v. American Airlines Inc., 295 F.2d

311 (7th Cir. 1961)

G.M. Leasing Corp. v. United States,

429 U.S. 338 (1976)

Government of Virgin Islands v. Gereau,

502 F.2d 914 (3d Cir. 1974)

Harris v. Nelson, 394 U.S. 286 (1969)

Hazelwood School District v. United States,

U.S. , 97 S.Ct. 2736 (1977)

Henry v. United States, 361 U.S. 98 (1959)

‘Henry v. Mississippi, 379 U.S. 443 (1965)

Herring v. Estelle, 491 F.2d 125 (5th Cir. 1974)

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

Jones v. United States, 357 U.S. 493 (1958)

Ker v. California, 374 U.S. 23 (1967)

Kremen v. United States, 353 U.S. 346 (1953)

Lewis Mach. Co. v. Aztec Lines, 172 F.2d 746

(7th Cir. 1959)

LiPuma v. Commissioner, F.2d (No. 77-

2066, 2d Cir. July 11, 1977)

Love v. United States, 170 F.2d 32 (4th Cir.

1948)

McCaslin v. McCord, 116 Tenn. 690, 707, 94

S.W. 79, 93 (1906)

McColium v. Eager, 43 U.S. (2 How.) 61 (1844)

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

Mapp v. Ohio, 367 U.S. 643 (1961)

-iii-

17

20, 21, 24

21

35

20, 23,

23

23

15

9

35

22

22

10

19

8

26

Marcus v. Search Warrant, 367 U.S. 717. (1961)

Martin v. Wainwright, 469 F.2d 1072 (5th Cir. 1973)

Marzullo v. Maryland, F.2d (No. 76-1946

4th Cir., September 2, 1977)

The Morning Star, 14 F. 866 (C.C.N.D. Ill. 1882)

Miller v. United States, 357 U.S. 301 (1958)

Moore v. United States, 432 F.2d 730 (3d Cir.

1970) (in banc)

New York v. Earl, U.S. , 97 S.Ct. 2663

(Burger, C.J., dissenting from denial of

cert.)

Nickols v. Gagnon, 454 F.2d 467 (7th Cir. 1971)

People v. Albea, 2 I11.2d 317, 118 N.E.2d 277

(1954)

Peters v. Kiff, 407 U.S. 493 (1972)

Preston v. United States, 376 U.S. 364 (1964)

Reichman v. Harris, 252 F. 371 (6th Cir. 1918)

Ricken backer v. Warden, 550 F.2d 62 (2d Cir.

1976)

Roaden v. Kentucky, 413 U.S. 496 (1973)

Rothman v. United States, 508 F.2d 648 (3rd Cir.

1975)

Rugendorf v. United States, 376 U.S. 528 (1964)

Sabbath v. United States, 391 U.S. 585 (1968)

Shotwell Mfg. Co. v. United States, 371 U.S.

341 (1963)

Smith v. Tate, 143 Tenn. 268, 227 S.W. 1026 (1906)

Sosa v. United States, 550 F.2d 244 (5th Cir. 1977)

18

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

Stanley v. Board of Supervisors, 121 U.S. 535

(1887)

State v. Mooring, 115 N.C. 709 (1894)

State v. Perez, 277 So.2d 778 (Fla. 1973)

State v. Pontier, 95 Ida. 707, 518 P.2d 969 (1975)

Stone v. Powell, 428 U.S. 465 (1976)

United States ex rel. Allum v. Twomey,

484 F.2d 734 (7th Cir. 1973)

United States ex rel. Bonner v. Warden,

553 F.2d 1091 (7th Cir. 1977)

United States ex rel. Williams v. Twomey,

510 F.2d 635 (7th Cir. 1975)

United States v. Braasch, 542 F.2d 442 (7th Cir.

1976)

United States v. Chadwick, U.S. » Fr S.Ct.

2476, 2483 (1977)

United States v. DeCoster, 497 F.2d 1197

(D.C. Cir. 1973)

United States v. Dieter, 429 U.S. 6 (1976)

United States v. Easter, 539 F.2d 663 (8th Cir.

1976)

United States v. Healey, 376 U.S. 75 (1964)

United States ex rel. McNair v. New Jersey,

492 F.2d 1307 (3d Cir. 1974)

United States v. Martinez-Fuente, 428 U.S. 535

(1976)

United States v. Rabinowitz, 339 U.S. 56 (1950)

-Yy~o

18

10

22

22

22

18,

33

35

35

15

28,

29,

35

United States v. Rivas, .3 M.J. 282 (C.M.A. 1977)

United States v. Santana, 427 U.S. 38 (1976)-

United States v. United States Gypsum Co.,

333 U.S. 364 (1948)

United States v. W.T. Grant, 345 U.S. 629 (1953)

Vale v. Louisiana, 399 U.S. 30 (1970)

Von Cleef v: New Jersey, 395 U.S. 814 (1969)

Wainwright v. Sykes, U.S. , 97 S.Ct.

2497 (1977)

Walker v. Johnson, 312 U.S. 284 (1941)

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

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

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

United States Constitution, Amendment IV

28 U.S.C. §2243

28 U.S.C. §2253

28 U.S.C. §2254

Act of March 3, 1802, 2 Stat. 244, §2

Act of February 5, 1867, ch. 38, 14 Stat. 385

Act of March 27, 1868, ch. 34, 42, 15 Stat. 44

Pub.L. 89-773, 80 Stat. 1323 (November 6, 1966)

-vi-

26

21, 28,

14

passim

32, 34

Pub. L. 94-426, §1, 90 Stat. 1334 (September 28, 1976)

Federal Rule of Civil Procedure 81 (a) (2)

Federal Rule of Appellate Procedure 4(a)

Rule 8(a), Rules Governing Section 2254 Proceedings

Rule 11, Rules Governing Section 2254 Proceedings

Former Admiralty Rule 49 (54 U.S. (13 How.) vi)

Bator, Finality in Criminal Law and Federal

Habeas Corpus for State Prisoners,

76 Harv.L.Rev. 441 (1963)

President's Commission on Law Enforcement and

Administration of Justice, Task Force

Report: The Police (1967)

Wroth & Zobel (eds), Legal Papers of John Adams (1965)

-vii-

10

30

34

19

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

No. 76-5325

BEN EARL BROWDER, Petitioner,

DIRECTOR, DEPARTMENT OF CORRECTIONS

OF ILLINOIS, Respondent.

REPLY BRIEF OF PETITIONER BEN EARL BROWDER

Introduction

This case arises from the warrantless arrest of

‘all the teen-age black males found in a dwelling; the

arrests were made to determine which arrestee, if any,

should be charged with an offense committed two days be-

fore. After the state courts had refused to adjudicate

petitioner's claim that this arrest was unlawful, the

United States District Court granted petitioner's appli-

cation for a writ of habeas corpus, finding, inter alia,

‘that the arrest was unlawful. The Court of Appeals re-

’ yersed in an “unpublished order," and this Court granted

certiorari to consider the Fourth Amendment issues, in

addition to a number of other questions presented in the

petition. The Fourth Amendment issues need not be reached,

however, if the Court accepts our contention that the

—_

Director's notice of appeal was untimely to vest the court

of appeals with jurisdiction to review the district court's

final order. In this reply brief, we respond to the argu-

ments raised by the Director, some of which we contend have

been waived or abandoned in the district court and in the

court of appeais.

I. PHE COURT OF. APPEALS LACKED JURISDICTION

TO REVERSE THE FINAL ORDER OF THE DISTRICT

COURT

The Director concedes that the district court's

order of October 21, 1975 (App. 110) granting petitioner's

application for a writ of habeas corpus indicates "that

the matter was being concluded in the district court."

(Resp.Br. 43.) This, of ‘course, is the hallmark of a

final order. See Bostwick v. Brinkerhof, 106 U.S. 1, 3-4

(1882). The two theories offered by the Director to ex-

plain its failure to have acted with the jurisdictional

time limits of F.R.A.P. 4(a) to perfect an appeal from this

final order, as authorized by 28 U.S.C. §2253, are eqhally

devoid of merit.

1/ The Director refers (Resp.Br. 43) to the memorandum

opinion of October 21, 1975 (App. 111-17) as the "order"

in question. This is incorrect. The order granting the

petition was entered on October 21, 1975 (App. 1), ina

separate document. (App. 110.)

1. The Director contends that the order of

October 21, 1975 was not final because “it left unresolved

the statutorily prescribed question of whether an evidentiary

hearing would be required on the petition.” (Resp. Br.46.)

This contention is frivolous -- the district judge obviously

concluded that an evidentiary hearing was not required when

he discharged his duty under 28 U.S.C. §2243 to “summarily

hear and determine the facts" and granted the petition on

2/

the state court record. If the district court had erred

in failing to hold an evidentiary hearing, this error could

3/

be corrected on appeal, but only if notice of appeal was

2/ The power to grant a habeas corpus petition without

an evidentiary hearing was explicitly recognized in Walker

v. Johnson, 312 U.S. 284 (1941), and was subsequently

codified in 28 U.S.C. §2243. See Braden v. 30th Judicial

Circuit Court of Kentucky, 410 U.S. 484, 498 (1973).

While the Rules Governing Section 2254 Proceedings are

inapplicable to this case, see infra at 5 n. 6, we note

that the power to grant a habeas corpus petition without

an evidentiary hearing is specifically recognized in Rule

8(a) of these rules, which provides, in pertinent part:

"If it appears that an evidentiary hearing is not required,

the judge shall make such disposition of the petition as

justice shall require." Thus, as the Court noted in Black-

ledge v. Allison, U.S. __, 97 S.Ct. 1621 (1977), a

strict judge “may employ a variety of measures to avoid

pga for an evidentiary hearing." Id. at _, 97 S.Ct.

at °

x, See, e.g., United States ex rel. McNair v. New Jersey,

92 F.2d 1307, 1309 (3d Cir. 1974); Sosa v. United States,

550 F.2d 244, 250 (Sth Cir. 1977). Cf. Dorszynski v. United

States, 418 U.S. 424 (1974) (failure of distruct judge to

have made explicit "no benefit" finding under Youth Correction

Act, 18 U.S.C. §5010(d), reversed on review of final decision.

2. Alternatively, the Director argues that its

motion to es filed 28 days after entry of the

final order, tolled the time to appeal. (Resp.Br. 44 n. 17.)

To accept this argument, the Court must reject the uniform

decisions among the courts of ee in favor of the

Director's assertion that the tolling rules of F.R.A.P.

4(a) are inapplicable to habeas corpus proceedings. (Resp.

Br. 46.) The Rules of Appellate Procedure, however, are

fully applicable to habeas corpus proceedings, see F.R.A.P.

l, and the Director's argument to the contrary must be

rejected.

The Director's argument is two fold. First, the

Director asserts that the tolling rules of F.R.A.P. 4(a)

are in “direct contravention” of Civil Rule 81l(a) (2) and

Rule 11 of the Rules Governing Section 2254 Proceedings.

(Resp.Br. 46.) The Rules Governing Section 2254 Proceedings

4/ While the Director claims that its post-final order

request that the district court receive further evidence

on the existence of probable cause was "far from being one

for reconsideration" (Resp.Br. 43), that motion was pre-

dicated on the assertion that the district court had "erred

in granting the writ without first conducting an evidentiary ©

hearing." (App. 118, 42.) This, of course, was a request

to reconsider disposition of the case without an evidentiary

hearing. In denying this motion, the district court stated,

in part, that "The motion to reconsider is denied." (App.

161.)

5/ See, e.g., Flint v. Howard, 464 F.2d 1084, 1086 (lst

Cir. 1972); Rothman v. United States, 508 F.2d 648, 651

(3d Cir. 1975); Martin v. Wainwright, 469 F.2d 1072, 1073

(5th Cir. 1973); United States v. Braasch, 542 F.2d 442,

444-45 (7th Cir. 1976).

6/

are inapplicable to this. case, and it is difficult to

conceive of any way in which the tolling rules of F.R.A.P.

4(a) may be in “direct contravention" of Civil Rule 81l(a) (2),

which was amended in 1968 to delete "references to appellate

procedure made inappropriate by the adoption of the Federal

Rules of Appellate Procedure. Harris v. Nelson, 394 U.S.

v/

286, 293 n. 3 (1969).

Second, the Director relies on United States v.

Dieter, 429 U.S. 6 (1976), and its application of the

6/ Pub.L. 94-426, §1, 90 Stat. 1334 (September 28, 1976),

made the Rules Governing Section 2254 Proceedings applicable’

to cases commenced on or after February 1, 1977. This

case was commenced on January 8, 1975. (App. 1.)

7/ Prior to 1968, when the Federal Rules of Appellate Pro-

cedure became effective, appellate procedure was governed

by local appellate rules and by the Rules of Civil Pro-

cedure. (Congress first vested this Court with explicit

rule making authority over the courts of appeals in civil

cases in 1966, Pub.L. 89-773, 80 Stat. 1323 (November 6,

1966).) Prior to that time, uniform rules for appellate

procedure had been promulgated only insofar as practice

in the district court pertained to appeals. See Stern,

Changes in the Federal Appellate Rules, 41 F.R.D. 297 (1967).

ormer Vv ule set ou ime limits for the

filing of a notice of appeal, and contained the tolling

rules carried over into present Rule 4(a) of the Rules of

Appellate Procedure. Former Civil Rule 81(b) expressly

provided that the Rules of Civil Procedure governed appeals

in habeas corpus cases:

In the following proceedings appeals are governed by

these rules, but they are not applicable otherwise than

on appeal except to the extent that the practice is not

set forth in statutes of the United States and has

heretofore conformed to the practice in actions in

law and suits in equity: admission to citizenship,

habeas corpus ...

o§-

tolling rules of United States v. Healey, 376 U.S. 75 (1964).

to requests for reconsideration filed by the government

in criminal cases. (Resp.Br. 44 n. 17.) There is no

statute or rule governing the timeliness of a petition

for rehearing in criminal cases, United States v. Healey,

at 79, and a petition for rehearing is timely if filed

prior to expiration of the time in which an appeal could

be perfected. Id. at 77. F.R.A.P. 4(a), however, governs

the timeliness of petitions for rehearing in habeas cor-

pus cases, and as the Court noted in United States v.

Dieter, supra, it is only "timely petitions for rehearing

. « « [which render] the original judgment nonfinal for

purposes of appeal." Id. at 8.

In this case, the petition for rehearing was not

timely, and notice of appeal was not filed until 128 days

had passed after entry of the final order. The court of

appeals therefore lacked jurisdiction to review the final

order of the district court, and the decision below must

be reversed, and the case remanded to the district court to

reinstate its writ of habeas corpus.

II. A COURT OF APPEALS MAY NOT

DECIDE FACTUAL ISSUES DE NOVO

The Director recognizes (Resp.Br. 8) that the

court of appeals reversed the decision of the district court

on its independent appraisal of disputed facts. But rather

than respond to our argument that a federal court of appeals

may not decide factual issues de novo (Pet.Br. 23-25), the

Director seeks to mislead the Court by stating that we do

not contest the facts as found in the first instance by the

court of appeals. (Resp.Br. 13-14.) This is incorrect. In

our view, the court of appeals -- if it had jurisdiction to

reach the merits -- should have viewed the record in the

light most favorable to petitioner, the prevailing party in

the district court, and reviewed the decision of the district

court on the assumption that petitioner, along with the

three other teen-age black males found in the Browder resi-

dence, had been arrested on the basis of "information" re-

ceived from a “known informer," referred to in the police

report. (App. 159, introduced into evidence at App. 148.)

On these facts, as the district court found (App. 114),

petitioner was the victim of an unlawful arrest. See

Henry v. United States, 361 U.S. 98 (1959); Beck v. Ohio,

379 U.S. 89 (1964).

Determination of what facts were known to the

police at the time of arrest was the duty of the district

8/

judge. The district judge in this case was uniquely

qualified to evaluate the testimony of law enforcement

officers -- Judge Flaum came to the bench after a dis-

tinguished career as a prosecutor for Cook County, Illinois,

as an assistant Attorney General of Illinois, and as

First Assistant to the United States Attorney for the

Northern District of Illinois. As the Director does in

this Court (Resp.Br. 3-5), and as it did in the court

of appeals, the Director had sought to convince Judge

Flaum that the evidence presented at the evidentiary hear-

ing proved that the police had probable cause to believe

that the offender sought was either petitioner or his

brother ‘Tyrone Browder. (Record Item No. 32, 2-4). Peti-

tioner vigorously disputed this contention, arguing that

the police testimony was inherently incredible, that it

was impeached by a contemporaneous arrest report, and

that it was in irreconciliable conflict with testimony

given by the officers at the state court trial. (Record

Item No. 31, 3-7.) Judge Flaum refused to accept the

Director's arguments, and reaffirmed his earlier decision

to grant the petition (App. 161) -- a decision which had

been based on the factual finding that there was "no basis

upon which the arresting officer might have formed a

belief that petitioner Browder raped Ms. Alexander." (App.

114.)

8/ See Mapp v. Ohio, 367 U.S. 643, 653 (1961): “Reasonable-

ness is in the first instance for the [trial court]

to determine." (quoting United States v. Rabinowitz, 339

U.S. 56, 63 (1950)

In reversing the decision of the district court,

the court of appeals did not explicitly decide that. the

district court had misapprehended the law -- both the court

of appeals and the district court cited Beck v. Ohio, 379

U.S. 89 (1964) for the test of probable cause to arrest.

(App. 114 (district court); App. 166 (court of appeals.)

The court of appeals did not conclude that any of the

explicit or implicit findings of fact made by the district

court were clearly erroneous -- there is, in fact, no

mention of any of the district court's findings in the

opinion of the court of appeals. Nor did the court of

appeals follow its ordinary practice of ame’ a the record

in the light most favorable to the appellee. Rather, as

the Director concedes (Resp.Br. 8), the court of appeals

reversed because it held "that the facts developed at the

evidentiary hearing established probable cause for

petitioner's arrest." This a court of appeals may not do:

On appeal, the task of a Court of Appeals

is defined with relative clarity; it is

confined by law and precedent, just as are

those of the district court and of this

court. If it concludes that the findings

of the District Court are clearly erroneous,

it may reverse them under F.R.C.P. 52(a).

If it determines that the District Court

has misapprehended the law, it may accept

that court's findings of fact but reverse

its judgment because of legal errors. Dayton

Board of Education v. Brinkman, U.S. 9

~_, 97 S.Ct. 2766, 2744 (1977). onl Bi

9/ See, e.g., Aunt Mid, Inc. v. Fjell-Orange Lines, 458.

F.2d 721 (7th Cir. 1972); George v. American Airlines Inc.,

295 F.2d 311 (7th Cir. 1961); Lewis Mach. Co. v. Aztec Lines,

172 F.2d 746 (7th Cir. 1959).

-9-

The Director has properly withheld the argument,

as made in connection with the applicability of F.R.A.P. 4(a)

to habeas corpus proceedings (Resp.Br. 46), that the ordinary

standards of appellate review are in "direct contravention"

of the conformity clause of Civil Rule 8l(a)(2). Final

orders in habeas corpus proceedings under 28 U.S.C. §2254

are reviewable "on appeal," 28 U.S.C. $2253, and the same

standards of appellate review applied in civil and criminal

10/

cases are applicable to appeals in habeas corpus cases.

10/ It is no accident that, as the Court held in Wade v.

Mayo, 334 U.S. 672, 683-84 (1948), the "clearly erroneous"

standard is applicable to appeals in habeas corpus pro-

ceedings.

When Congress extended federal habeas corpus to state

prisoners in the Act of February 5, 1867, ch. 38, 14 Stat.

385, it had the option of precluding appellate review

entirely, as when it subsequently curtailed the jurisdiction

of this Court in the Act of March 27, 1868, ch. 34, 42, 15

Stat. 44. See Ex Parte McCardle, 74 U.S. (7 Wall.) 506 (1868).

Once Congress had determined that there should be

appellate review, it had three different forms of review

from which to choose. First, review could have been by writ

of error, where the reviewing court was limited to consid-

eration of questions of law. See, e.g., Stanley v. Board

of Supervisors, 121 U.S. 535 (1887). Second, review could

have been by appeal, a form of review made available for

equity cases by the Act of March 3, 1802, 2 Stat. 244, §2.

Review in equity cases followed the common law model,

McCollum yv. Eager, 43 U.S. (2 How.) 61 (1844), and factual

findings were reviewed under the "clearly erroneous" stand-

ard. See, e.g., Furrer v. Ferris, 145 U.S. 132 (1892).

The third form of review that could have been adopted

was that then extant in admiralty cases, where additional

evidence could be received on appeal. See Former Admiralty

Rule 49, promulgated 54 U.S. (13 How.) vi (1851); The

Morning Star, 14 F. 866, 867 (C.C.N.D. Ill. 1882) ("It is

also a matter of everyday practice for additional testimony

to be taken on both sides in the circuit court, and that

testimony may entirely change the case as it stood before

the district court.")

(cont. )

-10-

As we have suggested (Pet.Br. 25), the court II. THE SEIZURE OF PETITIONER'S PERSON

of appeals may have reversed on the basis of a Fourth Bak AS CONFER 0 3 EE ee

Amendment standard different than that applied by the 2 the Court chesees to reach the aerits cf ths

district court. In our view, the Fourth Amendment standard Fourth Amendment issues in this case, and does not reverse

implicit in the decision of the court of appeals is plainly because of the Director's failure to have filed a timely

wrong; if, however, this Court accepts the legal standard

notice of appeal, there are two grounds to hold that

applied by the court of appeals, and concludes that notice the seizure of petitioner's person was contrary to the

of appeal was timely, the case must be remanded to the Fourth Amendment. First, the arresting officers lacked

district court for further findings of fact. a sufficient quantum of probable cause. (Pet.Br. 27-30.)

Second, investigative arrests are per se unlawful unless,

at a minimum, they have been authorized by a judicial

officer. (Pet.Br. 30-35.)

In an attempt to meet these arguments, the Director

seeks to characterize the warrantless arrest of all four

teen-age males found in the Browder residence as a “reason-

(cont) able course of action." (Resp.Br. 16.) In this vein, the

Rather than limit review to that available by writ of

error, or allow a trial de novo on appeal, as in admiralty Director's brief reads as if this was a case where the

cases, Congress mandated that the final decision in habeas figs . .

corpus cases could be reviewed "on appeal." A reviewing police, immediately upon receiving reliable information

court is therefore limited to determining whether factual .

findings are “clearly erroneous," i.e., whether “the that a crime had been committed by a teen-age black male

viewing court on the entire evidence is left with the . |

definite ent firm conviction that a mistake has been whose surname was Browder, and who lived in the 4000 block

committed.” United States v. United States Gypsum Co., 333

U.S. 364, 395 (1948). And it is the burden ot the appellant | of West Monroe Street, determined that the only Browder

to "demonstrate that there is no rational basis for the |

District Judge's decision." United States v. W.T. Grant, family on that block resided at 4037 West Monroe’ Street,

345 U.S, 629, 634 (1953).

“gtraveled to that address, learned that there were two per-

sons fitting the description of a dark complected black

teen-age male whose surname was Browder, and placed both

ee -12-

under arrest. (Resp.Br. 3-4.) Even viewed in the light

most favorable to the respondent -- the losing party in

the district court -- the record fails to support this

mythical fact pattern.

In this case, two days elapsed before the police

decided to act on the information claimed to have been

received immediately after commission of the crime in

question. (App. 135.) The reliability of this information

is uncertain: It came either from the rape victim (App.

130, 140) or from a “known. informant." (App. 159, intro-

duced into evidence at App. 148.) Regardless of the

source of the information, it lacked specificity. At

best, the police believed that the offender sought was a

"teen-aged Browder, like 15, 16, 17, 18" (App. 146), who

lived in the "4000 block of West Monroe (App. 140), of |

unknown height and weight. (App. 128.) Once the police

determined that a Tyrone Browder, whose address was 4037

West Monroe Street, had an arrest record (App. 139), no

attempt was made to determine if another Browder family

resided in the 4000 block of West Monroe Street. The

multiple suspect arrest was not a response to an unforseen

situation; the police claimed to have telephoned ahead to

the Browder residence and knew that “the gentlemen would

be waiting.” (App. 62-63.) Nor is this a case where, after

entering the home, the police seized only two teen-age

"Browder's." The Director concedes (Resp.Br. 17) that --

-] 3=

contrary to Officer Conroy's testimony in the district

court (App. 143) -- all four teen age black males found

within the Browder residence were arrested. Finally, the

arrests were not made so that the suspects could be charged

with an offense; here, petitioner and the three other “sus-

pects" were taken into custody so that they could be placed

in a lineup to determine which one, if any, would be

1l/

identified by an eyewitness.

The Director's argument that - was

arrested on probable cause (Resp.Br. 13-18) is based on

a jaundiced view of the facts, and ignores the fact that,

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

is no showing that the police had narrowed the scope of

their search to any particular person.

ll/ The blatant investigative purpose of the arrest was

admitted by the principal arresting officer in the district

court (App. 147-48):

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 to place them in a line-up?

Officer Conroy:

To see if they could be identified by the

victim. To see which one would be identified,

yes, sir.

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.

-14-

Contrary to the Director's suggestion (Resp.Br. 17).

the fact that all of the black teen-age males found within _

the Browder residence were placed under arrest cannot be

ignored. Seizure of all of the teen-age males found within

the dwelling is identical to the seizure of the entire con-

tents of a dwelling condemned as contrary to the Fourth

Amendment in Kremen v. United States, 353 U.S. 346 (1953)

and Von Cleef v. New Jersey, 395 U.S. 814 (1969). The

Director, as the dissenters in Kremen v. United States, supra,

would factionalize the seizures, and consider only whether

there was "a sufficient factual basis to support a particular

arrest." (Resp.Br. 15.) This analysis, if accepted, would

undo the protections of the Fourth Amendment "to prevent

arbitrary and oppressive interference by enforcement officials

with the privacy and personal security of individuals."

United States v. Martinez-Fuente, 428 U.S. 535, 554 (1976).

The Director attempts to analogize the dragnet

arrest in this case to a situation where "reasonable grounds

exist for the arrest of more than one person," (Resp.Br.

15), such as when a police officer observes two persons

standing over a dead man, and each accuses the other of

murder. (Resp.Br. 15 n. 3.) But this is not a case in

which the police acted as if they had reached the "reasonable

conclusion" (Resp.Br. 16) that either petitioner or his

-15-

a)

ee

brother had committed the crime under investigation. First,

the officers were easily able to differentiate between

petitioner and his brother -- petitioner was the only per-

son seized at the Browder dwelling who had his arm in a

“bandage or cast." (App. 20, 25.) Second, the possibility

that the officers had suspected only the two Browder brothers

is entieies by the fact that all four teen-age black males --

including two whose surname was not Browder -- were arrested.

But even if the police had “reasonable grounds"

to believe that the offender sought was a "teen-aged Browder,

like 15, 16, 17, 18" (App. 146), the investigative seizures

must be considered together with the fact that, as in

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

at police headquarters of petitioner and the other young

Negroes was not authorized by a judicial officer." Id. at

728. The Director reads Davis, and its suggestion that

investigative detentions might be lawful if undertaken

pursuant to a narrowly circumscribed procedure, 394 U.S.

at 728, as irrelevant because there was a sufficient quan-

tum of "probable cause” in this case to arrest petitioner,

his brother, and any other teenagers whose surname could

have been Browder. In our view, the teaching of Davis is

12.’ The Director suggests that the police may have sus-

pected both petitioner and his brother of having perpetrated

the crime under investigation. (Resp.Br. 16.) While the

eyewitness had described two offenders, she had told the

police that one was light-complected and the other dark

complected. (App. 126.) As the Director notes (Resp.Br.

16 n. 4): “Both [petitioner and his brother] were dark-

complexioned male Negroes."

~16-

= -

that detentions for investigation -- as the arrests. in this IV. ‘THE WARRANTLESS SEARCH OF PETITIONER'S

case unabashedly were -- are per se unlawful unless, at a CLT Oe EE

minimum, they are authorized by a judicial officer. : Even though two days had elapsed before the police

Tf allowed to stand, the decision of the court decided to act on the information allegedly received from

of appeals finding that petitioner was lawfully arrested the rape victim the police did not seek a warrant prior to

would vest Lan enforcement officials with the unbridled embarking on their expedition to the Browder residence to

powme te costes 6 © F Of suspects to Chtemnins wie search for and to seize all teen-aged black males who would

ff - This

WEBy. 5S Gite GEE SP GaN yES UE, Gh. SerEENe be found therein. The Director contends that a person at

holding destroys the “practical compromise," Gerstein v.

home does not have a greater right of privacy than when on

Pugh, 420 U.S. 103, d ;

am 420 0 wae AES LENE, CE PURREIES Cae, oF the public street (Resp.Br. 23-24), and argues that the

must be reverses. Fourth Amendment does not require that a disinterested judicial

officer warrant the need to search a dwelling when the

seizure of a person, rather than the seizure of papers and

effects, is sought. (Resp.Br. 25.)

1. To accept the Director's arguments would be

to “read the Fourth Amendment out of the Constitution.”

Coolidge v. New Hampshire, 403 U.S. 443, 480 (1971) (opinion

of Stewart, J.) As the Director recognizes (Resp.Br. 20),

the primary purpose of the Fourth Amendment was to curb

searches made under general warrants in England and writs

13/

of assistance in the colonies. The principal evil of the

13/ See Stone v. Powell, 428 U.S. 465, 482 (1976); Stanford

v. Texas, 379 U.S. 476, 480-86 (1965); Marcus v. Search

Warrant, 367 U.S. 717, 724-29 (1961); Boyd v. United States,

116 U.S. 616, 624 (1886).

o1 Fe

‘general warrants and writs of assistance was that they

placed “the liberty of every man in the hands of every

petty officer," by allowing searches under unchecked

general authority. ,

The Director would reject the solution adopted

by the Framers of the Fourth Amendment to keep "the liberty

of every man" out of "the hands of every petty officer" --

the institution of the search. warrant, which interposed

a disinterested judicial officer between the citizen and

arbitrary police power. As the Court explained in McDonald

v. United States, 335 U.S. 451 (1948), a “search warrant

serves a high function."

We are not dealing with formalities. The

presence of a search warrant serves a high

function. Absent some grave emergency

the Fourth Amendment has interposed a magis-

trate bewtween the citizens and the police.

This was done not to shield criminals nor

to make the home a safe haven for illegal

activities. It was done so that an ob-

jective mind might weigh the need to in-

vade that privacy in order to enforce the

law. The right of privacy was deemed too

precious to entrust to the discretion of

those whose job is the detection of crime

and the arrest of criminals. Power is a

heady thing and history shows that the

police acting on their own cannot be trusted.

So the Constitution requires a magistrate

to pass on the desires of the police before

they violate the privacy of the home. We

cannot be true to that constitutional re-

quirement and excuse the absence of a search

warrant without a showing by those who seek

exemption from the constitutional mandate

that exigencies of the situation made that

course imperative. Id. at 455-56.

14/ Boyd v. United States, 116 U.S. 616, 625 (1886), quot-

ing the arguments of James Otis against reissuance of writs

of assistance in Boston following the death of George II

in 1761. See Wroth & Zobel (eds.), Legal Papers of John

Adams, 141-42 (1965).

-19-

Apparently, the Director fails to grasp the

“point of the Fourth Amendment," as clearly articulated in

the oft quoted words of Mr. Justice Jackson in Johnson v.

United States, 333 U.S. 10 (1948):

The point of the Fourth Amendment, which

often is not grasped by zealous officers,

is not that it denies law enforcement the

support of the usual inferences which

reasonable men draw from evidence. Its

prohibition consists in requiring that

those inferences be drawn by a neutral

and detached magistrate instead of being

judged by the officer engaged in the often

competive enterprise of ferreting out

crime . . . When the right of privacy must

reasonably yield to the right of search

is, as a rule- to be decided by a judicial

officer, not by a policeman or government

enforcement agent. (Id. at 13-14.)

Only last term, the Court reaffirmed the importance

of the Warrant clause as the primary safeguard against

"unreasonable governmental invasions of legitimate privacy

interests." United States v. Chadwick, U.S. , 97 S.Ct.

2476, 2483 (1977). It is this safeguard which the Director

would eliminate solely because the search of petitioner's

dwelling resulted in the seizure of a person, rather than

papers or effects.

The point overlooked by the Director is that the

Fourth Amendment protects two distinct privacy interests --

the right to be free of unreasonable seizures, and the right

to be free of unreasonable searches. See G.M. Leasing Corp.

-20-

v. United States, 429 U.S. 338, 352-53 (1976). The require-

ment that arrests be based on probable cause protects an

individual's rights to be free from unreasonable seizures.

United States v. Santana, 427 U.S. 38 (1976). But greater

interests are at stake in a dwelling search, which involves

a separate intrusion into privacy. The “normal Fourth

Amendment rule," G.M. Leasing Corp. v. United States, at 358,

is that "except in certain carefully defined classes of

cases, a search of private property without proper consent

is ‘unreasonable' unless it has been authorized by a valid

search warrant." Ibid, quoting Camara v. Municipal Court,

15/

387 U.S. 523, 528-29 (1967).

2. The Director seeks an exception to the "normal

Fourth Amendment rule" by relying on "the common law rule"

permitting warrantless entries to arrest. (Resp.Br. 21.)

But as the Director recognizes (Resp.Br. 20), thes is no

evidence to suggest that the Framers intended to incorporate

15/ Contrary to the Director's assertion (Resp.Br. 23), an

arrest warrant would have been constitutionally insufficient

to authorize the entry of the Browder dwelling which pre-

ceded the arrests. See Government of Virgin Islands v.

Gereau, 502 F.2d 914, 928 (3d Cir. 1974).

An arrest warrant may be secured upon a showing that

an offense has been committed, and that there is reason-

able ground to believe that a particular person has committed

thet offense, i.e., that a specific person is “seizable."

See Whiteley v. Warden, 401 U.S. 560, 564-66 (1971). The

additional privacy interests which yield in a dwelling

entry require the added showing that a seizable item is

in the place whose search is authorized. See Rugendorf

v. United States, 376 U.S. 528, 533 (1964); Aguilar v.

Texas, 378 U.S. 108, 114 (1964).

@2le

such an exception into the Fourth Amendment. This would

have been contrary to the broad protections of that amend- |

ment against "the searches and seizures which deeply con-

cerned the colonists, and which were foremost in the minds

of the Framers . . . those involving invasions of the home. . .

United States v. Chadwick, U.S. ° » 97 8.Ct.

2476, 2482 (1977). The nineteenth century state common

no 16

law opinions which apply this "common law rule" are

in obvious conflict with the development of "the Fourth

Amendment to safeguard fundamental values which would far

outlast the specific abuses which gave it birth." United

‘States v. Chadwick, supra.

16 See, e.g., Commonwealth v. Reynolds, 120 Mass. 190 (1876),

where the Court stated: "The doctrine that a man's house is

his castle, which cannot be invaded in the service of pro-

cess, was always subject to the exception that the liberty

or privilege of the house did not exist against the king.

It had no application, therefore, to the criminal process."

Id. at 196. Reynolds relied upon Commonwealth v. Irwin,

83 Mass. 587 T1861), and was in turn relied upon in State

v. Mooring, 115 N.C. 709 (1894). Mooring was cited in Love

v. United States, 170 F.2d 32 (4th cir. 1948), and the

Massachusetts cases found their way into the federal reports

via two Tennessee decisions. See McCaslin v. McCord, 116

Tenn. 690, 707, 94 S.W. 79, 83 (1906) (dictim); Smith v.

Tate, 143 Tenn. 268, 227 S.W. 1026, 1027 (1921); Reichman

v. Harris, 252 F. 371, 380 (6th Cir. 1918) (dictim); Gate-

, 209 F.2d 789, 791 n. 3 (D.C. Cir.

1953) (dictum).

The "common law authorities" were seriously questioned

by Judge Prettyman in Accarino v. United States, 179 F.2d

456 (D.C. Cir. 1949), and have been rejected by a number

of jurisdictions which have considered the vitality of

the "common law rule" in light of development of the Fourth

Amendment. See Pet.Br. 40 nn. 40, 41. Those jurisdictions

which have adhered to the "common law rule" have deferred

bo he —- oh ag of the question. See, e.g.,

ate v. Perez, 277 So.2d 778, 783 (Fla. 1973); °

v. Pontier, 95 Ida. 707, 713, 518 P.2d 969, 78 ELE

3. The Director incorrectly asserts that the

Court has "“acknowledge[d] the validity of the common law

rule permitting warrantless entries [to arrest]." (Resp.

Br. 21.) On the contrary, the Court has repeatedly and

explicitly reserved consideration of this “grave con-

stitutional question.” Jones v. United States, 357 U.S.

493, 499 (1958). See Coolidge v. New Hampshire, 403 U.S.

443, 491-92 (1971) (Harlan, J., concurring); United States

v. Santana, 427 U.S. 38, 45-46 (1976) (Marshall, J., dis-

senting).

Contrary to the Director's contention, Johnson

v. United States, 333 U.S. 10 (1948) is flatly incompatible

with any notion of a general right of warrantless entry

17/

for the purpose of arrest. In Ker v. California, 374

U.S. 23 (1967), the Court was evenly divided on the lawful-

ness of the entry, search, and arrest under Fourth Amendment

17/ In Johnson, narcotics officers had recognized the dis-

tinctive odor of burning opium coming from within a hotel

room. They knocked and, when Johnson answered, pushed past

her into the room, found narcotics paraphernalia, arrested

her, and seized it. The Court held the initial entry into

the room to be unlawful, and rejected the government's

attempt to sustain the entry as incidental to Johnson's

arrest. The entry had preceded the arrest, and the fact

discovered upon entry, i.e., that Johnson was alone in

the hotel room, was held to be necessary to furnish probable

cause for her arrest. The entry was therefore unlawful,

and tainted all that followed.

While the Court in Johnson did not further discuss the

conditions of allowable arrest entry, the Court's analysis

in that case assumes that there is no right to enter with-

out 4 warrant simply on probable cause to arrest. The

police were confronted with an occupied room in which

opium was burning, and could reasonably believe that someone

in that room was committing an offense. This quantum of

probable cause, however, was deemed insufficient to allow

the arrest entry.

@23<

18

ey but the four members of the Court who: joined

with Mr. Justice Harlan in voting to affirm found exigent

circumstances to excuse any need for a warrant. Id. at 40.

Neither Miller v.:-United States, 357 U.S. 301 (1958) nor

Sabbath v. United States, 391 U.S. 585 (1968) involved the

Fourth Amendment; in both cases, the Court held an entry

unlawful because of non-compliance with the "knock and

announce" requirements of 18 U.S.C. §3109.

4. The Director's attempt to show exigent cir-

cumstances to justify the warrantless home entry (Resp.Br.

28) must be rejected. The unexplained two day delay in

following up on the information allegedly provided to the

police by the rape victim conclusively shows the absence

of any exigency. See G.M. Leasing Co. v. United States,

429 U.S. 338, 361-62 (1976) (Burger, C.J., concurring).

5. The Director's argument that the "mobility factor".

(Resp.Br. 23) requires that persons be afforded less pro-

tection from dwelling searches than papers or effects is

frivolous and has no place in this case, where the police

claimed to have telephoned ahead to advise Mrs. Browder that |

18/ Mr. Justice Harlan voted to affirm on the ground (rejected

by the other members of the Court) that Fourteenth Amend-

ment standards regulating state police searches and seizures

are not coincident with those which the Fourth Amendment

imposes on federal officers. 374 U.S. at 44-46.

-24-

19/

they were coming for her sons, and where the police

had waited two days after allegedly learning that the sus-~-

pect sought resided in the 4000 block of West Monroe Street

before following up on that information. The officers'

own testimony shows that this was not a case where an

arrest was necessary “now or never." Roaden v. Kentucky,

413 U.S. 496, 505 (1973).

Even if the actions of the police were not suffi-

cent to rebut the possibility of any need for prompt action,

the "mobility factor" argument must be rejected. A person

is certainly less mobile than flash paper -- which disin-

tegrates when ignited -- or small quantities of narcotics --.

which may be promptly disposed of in a toilet. Yet probable

cause to believe that any inanimate object -- regardless

of the possibility that it might be destroyed upon an

arrest entry -- is present within a dwelling does not, in

itself justify a search of that dwelling. See Vale v.

Louisiana, 399 U.S. 30 (1970). In addition to probable

cause to believe that the thing to be seized is within

the dwelling, there must be either a warrant, or facts

from which the officers could reasonably infer that delay

would result in the destruction of evidence. See Preston

v. United States, 376 U.S. 364 (1964). Neither was present

in this case.

19/ Mrs. Browder denied having participated in such a con-

versation. (App. 151.)

—=_ =

6. The Director's parade of horribles which,

it is asserted, would result from application of the warrant

clause to dwelling searches made to seize persons (Resp.

Br. 24) is unconvincing. The “'mini pre-arrest hearing’

to determine whether warrantless entry is permissible”

consists of nothing more than the ex parte decisions which

are now made by a law enforcement officer whenever a warrant-

less search or seizure is undertaken. The need for a post-

- deprivation judicial determination of the reasonableness of the

officer's warrantless actions -- which the Director apparently

views as a frivolous luxury -- is necessary to preserve "one

of the most fundamental distinctions between our form of

government, where officers act under the law, and the —

state, where they are the law." Johnson v. United States, 333

U.S. 10, 17 (1948). See Calero-Toledo v. Pearson Yacht Leasing

Co., 416 U.S. 663, 678-80 (1974). Whenever, as in this case,

there is no exigency, the officers may avoid the parade of

horribles envisoned by the Director by simply applying for a

warrant. This is a salutary course of action even when a

warrant is not constitutionally required, see Watson v. United

States, 423 U.S. 411, 456 n. 22 (1976) (Marshall, J., dissent-

ing), and, if followed in this case, would likely have de-

terred the police misconduct.

7. The question of whether the alternatives to

the warrant clause suggested by the Director (Resp.Br. 25) —

would be sufficient to satisfy the demands of the Fourth

Amendment is not presented in this case, where the police

did not have probable cause to errest.any one, specific

person, where the seizure of'all teen-age black males

found within the Browder residence two days after an

offense had been committed was not “reasonable,” and

where there was no attempt to comply with the state prompt

arraignment rule. Nor can there be any “strategic incen-

tives for police to obtain warrants where possible" (Resp.

Br. 25), when, as here, the State Attorney General vigorously

defends the reasonableness of a dragnet arrest, made at

night from a dwelling, in the absence of any exigency, and

without a search warrant. ,

8. The Director's claim that the police entry

to the Browder residence was consented to by Mrs. Browder

(Resp.Br. 26) should have been raised in the district

court, when the Director had two opportunities to show

that petitioner had been lawfully arrested. The Director

cannot claim lack of notice of the warrant issue -- peti-

tioner's application for a writ of habeas corpus asserted

that his arrest was unlawful because it “was made without

probable cause, without a warrant, and in the absence of

exigent circumstances." (Petition, 413 (App. 5).)

@2Je

¢

*

It is conceivable that the Director has defended

this case on the assumption that no court would hold petitioner's

arrest unlawful because it was made without a warrant. But

as in Whiteley v. Warden, 401 U.S. 560, 569 (1971), this

would not justify a remand to the district court so that

the Director may attempt to show that there was a voluntary

consent to the police entry. This is especially true when,

viewed in the light most favorable to petitioner, the

evidence shows mere acquiescence to authority, rather than

20/

voluntary consent. See Amos v. United States, 255 U.S. 313

(1921); Bumper v. North Carolina, 391 U.S. 543 (1968).

V. HABEAS CORPUS RELIEF IS PRECLUDED BY

NEITHER STONE V. POWELL, 428 U.S. 465

NOR BY WAINWRIGHT V. SYKES, U.S.

___ (1977)

The Director argues that consideration of the

merits of petitioner's Fourth Amendment claim is precluded

by Stone v. Powell, 428 U.S. 465 (1976) and by Wainwright

21/

v. Sykes, U.S. , 97.8.Ct. 2497 (1977). In our view,

20/ While the arresting officers claimed to have been

invited into the Browder dwelling (App. 142), Mrs. Browder

testified that the police, upon arrival, said that they

had come for her sons, and when asked “What for?" had

responded that they were taking the youths “down for

questioning and they would bring them back." (App. 150.)

Petitioner's trial testimony (App. 93) corroborated

his mother's recollections of the police entry.

21 The Director apparently concedes that, if its notice

of appeal was untimely, the applicability of these cases

need not be considered. See Pet.Br. 42 n.. 43.

-28-

ee ee tt te ee

These two cases must be read together to insure that when,

as here, a state fails to provide an indigent accused with

a full and fair opportunity to raise and have adjudicated

a Fourth Amendment claim -- either at trial, on direct

appeal, or through state collateral remedies -- the doors

of the federal district courts remain open to decide the

merits of the federal claim.

| 1. The Director contends that a prisoner receives

the "full and fair opportunity” required by Stone v. Powell

whenever a state has provided a procedure in which motions

to suppress evidence may be made. (Resp.Br. 38.) While

this contention may be applicable to the totality of the

New York procedures involved in Gates v. Henderson,

22/

F.2d (2d Cir. No. 76-2065, August 19, 1977) (in banc)

it has no place in this case, which arises from the

repeated refusal of the Illinois courts to either consider

the merits of petitioner's Fourth Amendment claim, or allow

him an opportunity to avoid the failure of his appointed

trial counsel to have raised the Fourth Amendment claim at

trial.

As petitioner's travail through the Illinois courts

# es v. Henderson, the Second Circuit convened in

e270, received additional evidence (slip op. 5383), <_

reversed the panel opinion, cited in Pet.Br. 47 n. os e

case was apparently submitted without re-argument prior

to this Court's decision in Wainwright v. Sykes, supra,

See slip op. 5361. The concurring opinion of Judge Oakes

(slip op. 5381-89) discussed Sykes, and is in accord with

our analysis.

-29-

reveals, Illinois does not provide any procedure through

which a prisoner may demonstrate "cause" and "prejudice"

to escape the consequences of a procedural default

committed by trial counsel which resulted in the non-

assertion of a Fourth Amendment claim. See Pet.Br. 43

n. 44. Absent such procedures, there can never be "full

and fair litigation" of a Fourth Amendment claim which

is not raised at trial.

Use of mechanical waiver rules as applied by the

Illinois courts was rejected in Henry v. Mississippi, 379

U.S. 443 (1965) and again in Wainwright v. Sykes, supra.

Rather than a Draconian waiver rule that, regardless of

excuse, all claims not raised at trial are irretrievably

lost, the due process clause requires -that federal courts

adjudicate, under 28 U.S.C. §2254, constitutional claims

of state prisoners for the first time upon a showing of

"cause" and "prejudice." See Bator, Finality in Criminal

Law_ and Federal Habeas Corpus for State Prisoners, 76 Harv.

L.Rev. 441, 455-57 (1963). The Director, however, would

construe "cause" and "prejudice" to replicate the

mechanical waiver rules applied by the Illinois courts.

(Resp.Br. 29-37). This belated argument, see infra at

32-33, must be rejected.

-30-

2. The “cause” and “prejudice” standards of Wain-

wright v. Sykes, supra, are Gerived from Shotwell Mfg Co. v.

United States, 371 U.S. 341 (1963), where the Court held

that there was insufficient cause under F.R.Cr.P. 12(b) (2)

to allow a post-trial challenge to grand and petit jury

arrays when the alleged illegalities had not resulted in

the seating of any unqualified grand or petit juror. Id.

at 363 n. 25. Under those circumstances, the Court held

that the defendants had not been “prejudiced in any way

by the alleged illegalities in the selection of juries."

Id. at 363. In this case, however, petitioner was preju-

diced because evidence obtained as the result of his unlawful

23/

arrest was used to secure his conviction. see Peters v.

Kiff, 407 U.S. 493, 508 (1972) (Burger, C.J., dissenting);

Alderman v. United States, 394 U.S. 165, 173 (1969).

The Director argues that a person accused of a

crime is not “actually prejudiced" when evidence obtained

in violation of his Fourth Amendment rights: is used to

22/ Shotwell was applied in Davis v. United States, 411 U.S.

233 (1973) to. preclude adjudication, absent a showing of |

"cause" and "prejudice," of claims of an unlawfully selected

grand jury in a motion under 28 U.S.C. §2255 which could

have been raised prior to trial. Davis was applied to

jury discrimination claims raised by a state prisoner under

28 U.S.C. §2254, but not previously adjudicated in state

court proceedings, in Francis v. Henderson, 425 U.S. 536

(1976). Wainwright v. Sykes, Supra, applied Francis to

all constitutional claims rais y a habeas petitioner

which had not been adjudicated in the state courts.

23/ The Director had abandoned the claim, raissed in the

court below, that petitioner's alleged oral confession ~

was free of any taint flowing from the arrest. See

Appellant‘s Brie*, 7th Cir., No. 76-1089, at 11-13.

obtain his conviction and imprisonment. (Resp.Br.. 34-37.)

While this might be true when use of unlawfully obtained

evidence results in only harmless error, see Pahy v.

Connecticut, 375 U.S. 85, 94-95 (1963).(Harlan, J., dis-

senting), in this case, as the district court found (App.

117), it cannot be said that use of the fruits of petitioner's

unlawful arrest resulted in harmless error. See Whiteley

v. Warden, 401 U.S. 560, 569 n. 13 (1971).

3. We disagree with the Director's contention

‘(Resp.Br. 31-33) that the present record fails to establish

24/

the "cause" required by Wainwright v. Sykes, supra. When,

as here, the record shows that a prisoner was represented

by court appointed counsel, that counsel failed to raise

a meritorious constitutional-claim, and that assertion

of that claim would have emasculated the prosecution's case,

a prisoner has made out a prima facie case of "cause." As

in any other lawsuit, once the proponent has made out a

prima facie case, the burden of coming forward with evidence

shifts to the opposing party. See Hazelwood School District

24/ This is not to say that a stronger showing of "cause"

would not have been made had the Director raised this issue

in the district court when the waiver question was at

issue. For example, we would have proved that trial counsel

would only file pre-trial motions for which mimeographed

forms had been prepared by the Public Defender's office,

and that no form had been prepared to suppress the fruits

of a warrantless arrest. We would have also have sought

to show that, as in other cases, trial counsel was reluctant

to present a vigorous defense lest he antagonize the trial

judge, and thereby lose his coveted position as a trial

assistant in the Public Defender's office.

@32-

v. United States, U.S. , 97 S.Ct. 2736, 2745

(1977) (Stevens, J., dissenting).

In the district court, where the waiver issue

was considered under the standards of United States ex rel.

Allum v. Twomey, 484 F.2d 734 (7th Cir. 1973) -- standards

virtually identical to those adopted by this Court in

Wainwright v. Sykes, supra -- the Director declined to

come forward with any évidence to rebut the prima facie

showing made out on the state trial record. On the con-

trary, the Director relied on the state court record as

showing that, under United States ex rel. Allum v. Twomey,

supra, “[cJounsel made a reasonable choice not to challenge

the legality of the arrest but to rely instead on the

character of the evidence against petitioner." (Record Item

No. 10, at 2.) ;

Having failed to exercise its opportunity to

rebut petitioner's prima facie case in the district court,

and after having acquiesced in the district court's

finding of no waiver on appeal, the Director now asserts

that petitioner has shown insufficient "cause" to excuse

the failure of his court appointed trial attorney to have

raised the Fourth Amendment issue at trial. This liti-

gation strategy is identical to the “sandbagging" feared

by the Court in Sykes, at ___, 97 S.Ct. at 2508, and should

not be countenanced. The Court should therefore decline to

-33-

consider this belated claim of Waiver, See Adickes v.

Kress, 398 U.S, 144, 147 n. 2 (1970); Whiteley v. Warden,

401 U.S. 560, 569 (1971).

4. The Director attempts to defend the failure

of petitioner's appointed trial counsel to have raised the

Fourth Amendment claim as reasonable "in light of the status

of the law in Illinois at the time." (Resp.Br. 32.)

Petitioner's trial commenced in 1971, however, two years

after this Court's decision in Davis v. Mississippi, 394

‘U.S. 721 (1969), and four years after the President's

Commission on Law Enforcement and the Administration of

Justice had concluded that "there is no legal basis for

arresting persons simply as a means of detaining them

while an investigation of their possible involvement in a

crime is conducted. Ibid, Task Force Report: The Police

186 (1967). The Illinois Supreme Court had long prior to

petitioner's trial adopted a generous intepretation of

the "fruit of the poisonous tree doctrine," People v.

Albea, 2 I11.2d 317, 118 N.E.2d4 277 (1954), and it simply

cannot be said that it was "reasonable" for appointed trial

counsel to withhold petitioner's Fourth Amendment claim.

In addition, as Justice (then Judge) Stevens concluded

* . Nickols v. Gagnon, 454 F.2d 467 (7th Cir. 1971), counsel

has a duty to raise “points which may ultimately support

a federal constitutional claim even though foreclosed as

a matter of state law." Id. at 483.

-34-

‘. —sonieee |) |

OCT 28 17

[to be inserted at the top of page 35] ac he

SuPREME COURT, U.S.

ex rel. Bonner v. Warden, 422 F.Supp. 11 (N.D.I11. 1976),

aff'd 553 F.2d 1091 (7th Cir. 1977). Amending the petition

after this issue had been exhausted would only have pro-

traeted the already delayed adjudication of the Fourth

Amendment issue. Finally, the Director's reliance (Resp.

Br. 39 n. 16) on footnote six in LiPuma v. Commissioner,

5. The Director's reliance (Resp.Br. 33) on

F.2d (NO. 77-2006, 2d Cir., July 11, 1977) for the

etitioner's failure to have asserted a Sixth Amendment claim

P proposition that Stone v. Powell, 428 U.S. 465 (1976)

in federal proceedings is misplaced. First, as Tollett ~. requires that the failure of counsel to have raised a

Henderson, 411 U.S. 258 (1973) teaches, a different standard Fourth Amendment claim be excluded from review of counsel's

1s of incompetency is required to show a deprivation of Sixth competency, must be considered in light of the "farce

, Amendment rights than to allow adjudication of a consti- . and mockery" standard extant in the Second Circuit. See

tutional claim not asserted in state court proceedings. , Rickenbacker v. Warden, 550 F.2d 62 (2d Cir. 1976). A

Second, there is no reasonable inference which arises from different result would be reached under the more modern

petitioner's failure to have included a Sixth Amendment standards followed in the majority of the courts of etn

claim in his habeas petition:” At the time proceedings were 6. The Director's primary response to our argu-

commenced in federal court, petitioner had not clearly ment (Pet.Br. 47-50) that Stone v. Powell, supra, should

exhausted state remedies on this issue. See United States not be extended to a case involving egregious police mis-

= | conduct is to repeat its euntentien that the blatantly

investigative arrests in this case were reasonable. (Resp.

Br. 41.) The Director also relies on the fact that the

25/ See, e.g., United States v. DeCoster, 497 F.2d 1197

: D.C. Cir. 1973); Moore v. United States, 432 F.2d 730

-34A- ' (3d Cir. 1970) (in banc); Marzullo v. Maryland, _ F.2d

____ (No. 76-1946, 4th Cir., September 2, 1977) ; Herring

v. Estelle, 491 F.2d 125 (Sth Cir. 1974); Beasley v. United

States, 491 F.2d 687 (6th Cir. 1974); United States ex rel.

Williams v. Twomey, 510 F.2d 635 (7th Cir. 1975); United

States v. Easter, 539 F.2d 663 (8th Cir. 1976); United

States v. Rivas, 3 M.J. 282 (C.M.A. 1977).

= 280

court of appeals held the arrest to be lawful, but, .as

we have previously demonstrated, this conclusion was

incorrect,. and was based on an improper view of the facts.

Finally, in further support of the need for habeas corpus

review of Fourth Amendment questions involving egregious

police misconduct, where the state courts have miscon-

ceived the federal rights involved, we ase the recent

observation of Mr. Chief Justice Burger:

This Court cannot, of course, give

‘ plenary consideration to every erroneous

holding, and I have no doubt that limi-

tations of time and a crowded docket

weigh heavily in the decision denying

review. New York v. Earl, U.S.

, 97 S.Ct. 2663, 2666 (1977) eh

(Burger, C.J., dissenting from denial

of cert.)

’

For all of these reasons, assuming that the

Court chooses not to reverse on the jurisdictional question,

neither Stone v. Powell, supra, nor Wainwright v. Sykes,

supra, would preclude relief on the Fourth Amendment issues

presented in this case.

=-36-

Conclusion

For the reasons above stated, petitioner reiterates

his request that the decision of the court of appeals be

reversed, and the case remanded to the district court with

instructions to reinstate its writ of habeas corpus.

the alternative, the case should be remanded to the district

court for resolution of disputed questions of fact

resolved in the first instance by the court of appeals.

In addition, the court of appeals should be directed

to release its decision in this case for.publication free

of any restrictions on citation.

Of Counsel:

John T. Moran

John M. Kalnins

Thomas R. Meites:

October, 1977

Respectfully submitted,

Kenneth N. Flaxman

5549 North Clark Street

Chicago, Illinois 60640

(312) 728-3525

Attorney for Petitioner

@37-