Petition — Hickey v. United States

Supiemebeurt, U. S.-

7 FILED

in the OCT 18 1978

Supreme Coutts

of the

United States

OCTOBER TERM, 1978

no._ 787629

WILLIAM JOSEPH HICKEY,

Petitioner

US,

THE UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Harvey N. Gedrich, Esq.

Stuart L, Stein, Esq.

GEDRICH & STEIN

Attorneys at Law

550 South Federal Highway

Suite 101

Fort Lauderdale, Florida 33301

Telephone: (305) 462-7200

Attorneys for Petitioner

INDEX

Page No

LE Calo h cea vcevcaveneeccavecescs 2

cee tbeedeseweees 3

Ee 4

Constitutional Provisions, and Statutes Involved .. 5

Statement of the Case ........cccccccccccccccevecs 14

sc cdvcctvcbevecddeseuees 8-15

Argument

ME 16-22

Reet deirecuntevenceestesscevene’ 23-27

EY LUAU s ben bhesscessececccee vanes 28

ST NEED csc escccccccveccccvececccess

Appendix A — Unpublished Opinion of the United

States Court of Appeals for the Fifth Circuit . 30-33

Appendix B — Denial of Petition for Rehearing of

United States Court of Appeals for the Fifth

Circuit

TABLE OF AUTHORITIES

Cases Cited Page No.

Brady v. Maryland,

are Ue Oe (186s) ........... ute aretidis veee neces 23

Carroll v. United States,

oes ba ais eible cp eaect sce 18

Chambers v. Maroney,

es a 17

Chemel v. California,

I UE OND nk civics s ceccennveccn 17

Cody v. Dambrouski,

ME cee cu csenvvccbienc 19, 20

Coolidge v. New Hampshire,

hs con encee'nsbicccees 17

Johnson v. United States,

oe a) .ee. BO, 13-14 (1968)... wc cc cee 16

Katz v. United States,

SP OM go. ccs cdkuecnwcsecdsecs 17

Preston v. United States.

| Ep ae ee 18

Ross v. Texas,

474 F. 2d 1150 (5th Cir. 1973) ................ 25, 26

South Dakota v. Opperman,

NOE oo csc cc annseccsccveces 18, 19

il

TABLE OF AUTHORITIES (Continued)

Cases Cited Page No.

United States v. Agurs,

ey WC EE oo icac . chaevs ca wcduvenscuss 24, 26

United States v. Chadwick,

Fe NUE ok cee ou kcuxvacasccscchant 17

United States v. Diggs,

o Bee Bb) Fl CR. 9) | 19

United States v. Edwards,

564 F. 2d 1331 (Sth Cir. 1977) ...............-. 19

United States v. Haes,

2 & we ye Lk ae oy) rr ree 21

Wong Sun v. United States,

ee Ue EN OME oc occa bax cceaddevueaeee. 21

STATUTES

Se EE ieee coed wu Ue ecb ent ec bacceeon 5

ee PD ook er Soe aw eh bk cocks 6

CONSTITUTIONAL PROVISIONS

PU 8, CULT) setae Lay 4)

RE rand pote ERE NOTE as cmc PC om 9)

iil

LL

in the

Supreme Court

of the

United States

OCTOBER TERM, 1978

NO.

WILLIAM JOSEPH HICKEY,

Petitioner

US.

THE UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The Petitioner, WILLIAM JOSEPH HICKEY.

respectfully prays that a writ of certiorari issue to review

the Judgment of the United States Court of Appeals for

the Fifth Circuit, entered in the above entitled action on

June 8, 1978, in which case the Petitioner was one of the

Appellants.

OPINION BELOW

The opinion of the United States Court of Appeals

for the Fifth Circuit is unreported. (Rule 18, Fifth Cir-

cuit, See Isbell Enterprises, Inc. v. Citizens Casualty

Company of New York, et al., 5th Cir., 1979, 431 F. 2d

409.) The unpublished opinion No. 77-5973 appears as a

matter of convenience as Appendix A to this Petition.

JURISIDCTION

The jurisdiction of this Court to review the above

mentioned decree of the said Court of Appeals is in-

voked under the provisions of 28 U.S.C.A.. Section

1254(1);

“Cases in the courts of appeals may be

reviewed by the Supreme Court by the follow-

ing methods:

(1) By writ of certiorari granted upon the

petition of any party to any civil or criminal

case, before cr after rendition of judgment or

decree;...”’

—e

QUESTIONS PRESENTED

(1) Whether the District Court erred in failing to

grant Petitioner's Motion to Suppress illegally seized

evidence where said evidence was obtained in a manner

which violated the Petitioner’s right to be searched

against unreasonable searches and seizures under the

Fourth Amendment to the Constitution of the United

States.

(2) Whether the District Court erred in denying

Petitioner’s Motion for Mistrial based on the Govern-

ment’s failure to disclose to the Petitioner’s a police

fingerprint report which was both exculpatory and

material where the Petitioner’s had moved for produc-

tion of favorable evidence, in deprivation of Petitioner's

rights to due process of law under the Constitution of the

United States.

CONSTITUTIONAL PROVISIONS and

STATUTES INVOLVED

The Amendments to the Constitution provide in

pertinent part:

AMENDMENT IV.

“The right of the people to be secure... .

against unreasonable searches and seizures,

shall not be violated. . . .”

AMENDMENT V.

“No person ... , nor be deprived of life.

liberty or property, without due process of law:

18 U.S.C. 912

Officer of Employee of the United States

‘Whoever falsely assumes or pretends to be

an officer or employee acting under the

authority of the United States or any depart-

ment, agency or officer thereof, and acts as

such, or in such pretended character demands

or obtains any money, paper, document, or

thing of value, shall be fined not more than

$1,000 or imprisoned not more than three

years, or both.

18 U.S.C. 924 (c) (i)

‘*(c) Whoever-

(1) uses a firearm to commit any felony for

which he may be prosecured in a court of the

united states, . . . shall, in addition to the

punishment provided for the commission of

such felony, be sentenced to a term of im-

prisonment for not less than one (1) nor more

than ten (10) years.”

STATEMENT OF THE CASE

The Petitioner, WILLIAM JOSEPH HICKEY was

charged by indictment with two counts of impersonating

a federal officer and two counts of using a firearm during

the commission of the offense of impersonating a federal

officer. (R. 1-3) Petitioner was charged along with co-

defendant, RICHARD WILLIAM BRAHAM.

A jury trial was conducted before the Honorable

Sidney M. Aronovitz, United States District Judge, on

July 13-15, 1977 (R. 176-699). The Petitioner was found

guilty on all counts and was sentenced to three years im-

prisonment for each impersonation count, the sentences

to run concurrently with each other, and ten years im-

prisonment for each firearm count, the sentences to run

concurrently with each other but consecutively to the

sentences for the impersonation counts. (R. 94-99, 135,

139). On July 22, 1977, the Petitioner filed a Motion

seeking a new trial; the Motion was denied by a written

order filed on August 22, 1977. (R. 120-122, 131).

An appeal was taken to the United States Court of

Appeals for the Fifth Circuit. That appeal resulted in

the Fifth Circuit affirming the decision of the trial court

on June 8, 1978. The Fifth Circuit denied the Petition

for Re-hearing on August 14, 1978. The Honorable Mr.

Justice Lewis Powell granted the Petitioner an extension

for the time in which to file this Petition for Writ of Cer-

tiorari up till and including October 14, 1978.

STATEMENT OF THE FACTS

On June 17, 1977, a hearing was held betore the

Honorable Peter R. Palermo, United States Magistrate,

on a Motion to Suppress evidence seized from Petitioner

Hickev’s automobile. (R. 34-36 143, 175). A Special

Agent, Raymond S. Thurman, testified that he arrested

the Petitioner pursuant to an indictment on March 4,

1977, in North Miami Beach, Florida. (R. 149, 151).

Agent Thurman stated that he had just set up a sur-

veillance of Co-Defendant Braham’s home on the morn-

ing of March 4, 1977 when the Defendants below drove

by in Petitioner HICKEY’s automobile. (R. 156, 157).

Thurman testified that he arrested the Petitioner by

pulling alongside the Petitioner’s car, after it had

stopped in traffic, and he ordered the Petitioner and co-

defendant below to exit their car at gunpoint.

(R. 160, 161). The defendants below were searched,

handcuffed, advised of their rights, and were placed in

an assisting agent’s car. (R. 161). Thurman stated that

the defendants below were told that the car would be

taken to the F.B.I. office and that the defendants below

were not given an opportunity to secure the vehicle

because the car was in the line of traffic. (R. 164, 165).

Thurman noted that he had no search warrant at the

time of the arrest, but that Agents Mery and Dalde en-

tered the vehicle at the scene of the arrest and looked

around in the various parts of the car. (R. 151, 162, 173).

Thurman also stated that he personaily stuck his head

in the door of the car and noted that he may have also

looked in the glove compartment. (R. 169, 170). Thur-

man testified that he noticed a box of Aramis perfume

on the floor of the car but that nothing was seized at that

time. (R. 163, 170).

Thurman stated that subsequent to the

automobile’s removal to the F.B.I. office, a complete in-

ventory of items inside the car was made. (R. 163). On

March 8, 1977, four days after the inventory at the F.B.I.

office, a search warrant was applied for, received and ex-

ecuted on Petitioner Hickey’s automobile and at least

sixteen items were taken. (R. 166-168).

The Court denied the Petitioner’s Motion finding

that the arrest, which was pursuant to a legal indict-

ment, was proper and that the initial search, the inven-

tory search, was also proper. (R. 173, 174).

Prior to the selection of the jury panel and pursuant

to Petitioner’s Motion for Production of Evidence

favorable to the accused and for additional discovery,

pursuant to Rule 16, Federal Rules of Criminal

Procedure and the Court’s Order that the parties resolve

the discovery matters by themselves, the Government

informed the court that all Jencks material had been

produced and all other discovery material had been

provided. (R. 43, 44, 51-54, 75, 76, 201).

At trial, Special Agent Raymond Thurman testified

that on June 16, 1976, he brought two sets of

photographs to the home of Mrs. Ronna Ferden in order

to have her determine if she could identify the per-

petrators of an offense committed in her home the

previous April. (R. 253, 254). Thurman selected the

photographs on the basis of descriptions given by Mrs.

Ferden in the F.B.I. report and on descriptions given by

others who were aware of the Petitioner and co-

defendant below. (R. 283, 284, 287). Thurman noted

that Mrs. Ferden had seen the Petitioner and co-

defendant below physically or by picture three times at

the time she was asked to identify them from the

photographic groups. (R. 268). Thurman testified that

both Mrs. Ferden and her mother, Mrs. Adler, were able

to identify the Petitioner and co-defendant below as the

men who came to their home impersonating an agent of

the Internal Revenue Service. (R. 274-277). Thurman

stated that Mrs. Joan Van Anglea identified the

Petitioner and co-defendant below from the photograph

as the men who posed as F.B.I. agents when they en-

tered her home. (R. 279).

Agent Thurman testified that he was aware that the

Petitioner and Co-defendant below appeared in a lineup

on May 2ist and May 24th, 1976. (R. 308, 310). Thur-

man stated that he also knew that all three women, Mrs.

Adler, Mrs. Ferden and Mrs. Van Anglea, were unable

to identify either Petitioner or co-defendant below at the

line-up. (R. 310).

Mrs. Ferden noted that she attended a lineup with

her mother on May 24, 1976. (R. 347). Mrs. Ferden was

not able to identify either Petitioner or co-defendant

below in two separate lineups. (R. 352,353). Mrs. Ferden

attributed her inability to make a positive identification

at the lineup to these factors: she was nervous, the men

were dressed differently from the day they entered her

home and one of the men did not have a mustache when

he appeared in the lineup. (R. 354-356). Mrs. Ferden

noted that on June 16, 1976, she identified both

Petitioner and co-defendant below from the

photographs shown to her by Agent Thurman. (R. 333-

336). At trial, Mrs. Ferden stated that she was positive

that the Petitioner and co-defendant below were the

men who came to her home on April 28, 1976. (R. 357).

10

a

Betty Adler testified that after the police arrived

she was shown some photographs to see if she could

recognize the men. (R. 367, 368). Mrs. Adler noted two

photographs of men she thought could possibly be the

perpetrators. (R. 369). The photographs Mrs. Adler

stated that she attended the May 24, 1976, lineup and

was unable to identify anyone because of the way the

men were dressed. (R. 371-374). At trial, Mrs. Adler

testified that there was no question in her mind that the

Petitioner and co-defendant below were the per-

petrators. (R. 375).

Joan Van Anglea testified that she received a call

from a man claiming to be an F.B.I. Agent at 9:15 A.M.

on March 11, 1976. (R. 394). The caller wanted to send

two men over to inquire about a maid who Mrs. Van

Anglea employed who was suspected of cashing bogus

welfare checks. (R. 394, 395). Mrs. Van Anglea stated

that within fifteen minutes, two men, who flashed a

badge and claimed to be from the F.B.I. showed her two

photographs. (R. 395, 396). After Mrs. Van Anglea was

unable to identify the photographs, the men said they

would return with more recent pictures. (R. 396, 397).

The men returned within two minutes stating that they

would like to leave the photographs with Mrs. Van

Anglea and also that they needed a pen to write their

phone number, so that Mrs. Van Anglea could get in

contact with them. (R. 398). When Mrs. Van Anglea

went to get a pen, the men followed her, placed a gun to

her head and led her into the bedroom. (R. 399). The

men tied her hands and ankles with plastic cuffs and

ransacked her dressing room and bedroom. (R. 402,

403). Mrs. Van Anglea testified that after the men had

left, she was able to get to the front door, and scream for

help. (R. 407).

11

Mrs. Van Anglea gave descriptions of both per-

petrators to an officer of the Bal Harbor Police Depart-

ment and to Agent Thurman. (R. 417-430, 424, 425).

Mrs. Van Anglea stated that she attended both the May

21 and May 24, 1976 lineups. (R. 427, 429, 435). Mrs.

Van Anglea testified that she could not identify either

Petitioner or co-defendant below in the May 21st lineup

because she was tired from a long wait at the Police Sta-

tion and because the men were dressed differently,

noting in particular that the men no longer had

mustaches. (R. 431, 432). Mrs Van Anglea cited changed

appearances as the reason she could not make an iden-

tification on May 24, 1976. (R. 349). At trial, Mrs. Van

Anglea could now state that she was certain that the

Petitioner and co-defendant below were the men in her

apartment on March 11, 1976. (R. 451).

Special Agent Benjamin Grogan testified that on

March 4, 1977, he drove the car in which the Petitioner

and Co-defendant below had been in, to the F.B.I. office

from the scene of the arrest. (R. 452, 453). With the

assistance of two other agents, Grogan inventoried the

car and wrote down what was there; a tan sport coat,

blue jacket, and a box which was found to contain a gun.

(R. 453, 454). The Petitioner and co-defendant below

renewed their objection to the gun on the ground it was

illegally seized. (R. 457). The judge overruled the objec-

tion. (R. 458).

Frederick Stief, II, a police technician for the

Public Safety Department, testified that he went to the

Ferden’s home on April 28, 1976, and processed the

plastic handcuffs for latent fingerprints. (R. 460, 461)

Stief noted that there was an official comparison report

which he didn’t have, but that he had an informal report

12

a a

which stated that three latents were lifted and that none

were identified. (R. 464, 465). The Petitioner and co-

defendant moved for a mistrial on the ground that the

Government had failed to comply with the Court’s man-

date under Rule 16 of the Federal Rules of Criminal

Procedure and under Brady. (R. 466-468). The court at

first received ruling and then denied the motion for mis-

trial stating that the materiality of the report had not

been established and that it’s exculpatory nature, if

any, was minimal. (R. 469, 499).

Andre Fortier, an F.B.I. Agent, testified that he

searched the Petitioner's car on March 8, 1977, pursuant

to a search warrant he had received. (R. 472, 473). For-

tier found a bottle of Viking Spirits gum, which he

stated was used to glue on false facial hair, two false

mustaches, and a Van Dyke goatee. (R. 474, 476).

The Petitioner and co-defendant moved for a

directed verdict on the ground that the Government

failed to establish a prima facie case. (R. 501). The court

denied the judgment of acquittal on all counts.

George Gold, an attorney who represented the

Petitioner and co-defendant below at the time of the

lineup, was present at the lineup when Van Anglea at-

tempted to make an identification. (R. 513, 514, 519).

Gold stated that Van Anglea did not identify the

Petitioner and co-defendant but instead identified some

other individuals. (R. 521, 523). Gold noted that at no

time did Mrs. Van Anglea complain that she could not

identify the Petitioner and co-defendant below due to

physical exhaustion or other reasons. (R. 523).

13

Alex Spector, a Bay Harbor Police Officer, was one

of the first policemen to arrive at the Ferden home on

April 28, 1976 (R. 543, 544). Officer Spector got a

description of the perpetrators from Mrs. Ferden, Mr.

and Mrs. Adler, and Mrs. Collins, the maid. (R. 544,

545). Officer Spector picked up ten photographs from

the stationhouse and displayed thein to the people on

the Ferden home. (R. 546, 548). The victims identified

Scott Worthington and Leonard Fury as the per-

petrators. (R. 549).

Aaron Campbell, an officer with the Public Safety

Department, conducted the lineups in which the

Petitioner was present. (R. 563, 564). Campbell noted

that Co-defendant Braham slouched in the lineup and

that no identification was made in either lineup.

(R. 571, 572). Campbell stated that none of the wit-

nesses who viewed the lineup had told him that they

could not make an identification due to the slouching.

(R. 572, 573).

Sherman Foreman, a court reporter hired of the

firm of Moran and Gold, was present at both the May 21

and May 24, 1976 lineups. (R. 574, 575). Foreman stated

on May 21, Van Anglea identified Dennis Hull and Dan

Bursey in a lineup which included co-defendant

Braham. (R. 577, 580, 582). On May 24, 1976, Mrs. Van

Anglea noted that Dennis Hull looked familiar and then

selected Steve Stein from a lineup which included

Petitioner Hickey. (R. 583-585, 587). Foreman testified

that Mrs. Van Anglea did say it was difficult to make an

identification due to the different clothes. (R. 589).

Foreman stated that Mrs. Adler selected Dan Bursey as

the perpetrator. (R. 586). Foreman noted that on the

14

OO —————

four lineups held over two days, no one had identified

either Petitioner Hickey or co-def

; -defend :

Braham. (R. 586, 587). penet Uelow,

. The Petitioner and co-defendant below renewed

their motion for judgment of acquittal at the close of all

the evidence. (R. 627). The court deni 7

ae : ied the Petit

and co-defendant below’s motion. (R. 627 ). etitioner

. The Petitioner thereupon appealed with his co-

defendant below to the United States District Court of

Appeals for the Fifth Circuit. The Fifth Circuit con-

firmed the decision of the trial court on June 8 1978 and

denied the Petition for rehearing on August 14, 1978 and

this Petition for Writ of Certiorari then followed

ARGUMENT

POINT I

WHETHER THE DISTRICT COURT

ERRED IN FAILING TO GRANT

PETITIONER’S MOTION TO SUPPRESS

ILLEGALLY SEIZED EVIDENCE WHERE

SAID EVIDENCE WAS OBTAINED IN A

MANNER WHICH VIOLATED THE

PETITIONER’S RIGHT TO BE SEARCHED

AGAINST UNREASONABLE SEARCHES

AND SEIZURES UNDER THE FOURTH

AMENDMENT TO THE CONSTITUTION

OF THE UNITED STATES.

“The point of the Fourth Amendment, which

often is not grasped by zealous officers, is not

that it denied law enforcement the support of

the usual inferences which reasonable men

draw from evidence. Its protection consists in

requiring that those inferences be drawn by a

neutral and detached magistrate instead of be-

ing judged by the officer engaged in the often

competitive enterprise of ferreting out crime.

Any assumption that evidence sufficient to

support a magistrate’s disinterest determina-

tion to issue a search warrant will justify the of-

ficers in making a search without a warrant,

would reduce the Amendment to a nullity, and

leave the people’s homes secure only in the dis-

cretion of police officers.” Johnson v. United

States, 333 U.S. 10, 13-14 (1948).

16

It is the recognition of the protection a search

warrant affords against improper governmental intru-

sions that has led this Court to hold that warrantless

searches are per se unreasonable under the Fourth

Amendment. Coolidge v. New Hampshire, 493 U.S. 443

(1971); Katz v. United States, 389 U.S. 347 (1963). This

general rule is subject to a few well-delineated excep-

tions. The record below demonstrates that only two of

these exceptions may be pertinent. Search incidental to

arrest and inventory search.

SEARCH INCIDENTAL TO ARREST

In Chemel v. California, 395 U.S. 752, 763 (1969)

the Court held that in order to safeguard himself and

others, and to prevent the loss of evidence, an arresting

officer may reasonably conduct a warrantless search of

the arrestee’s person and the area within his immediate

control — construing that phrase to mean the area from

within which he might gain possession of a weapon or

destructible evidence. ‘‘The reasons the court cited in

Chemel, supra, which have been thought to justify

warrantless searches are not applicable, where the ac-

cused is safely in custody or may not gain access to the

property to seize a weapon or destroy evidence.

Chambers v. Masonry, 399 U.S. 42 (1970): United

States v. Chadwick, 97 S.Ct. 2476 (1977).

In the case at bar, the Petitioner and co-defendant

below were effectively placed in custody moments after

the agents of the F.B.I. pulled alongside their stopped

vehicle. (R. 160, 161). The Petitioner and co-defendant

below were searched, handcuffed and placed in an

assisting agent’s car. (R. 161). From the moment they

17

were placed in the agent’s car, there was no longer any

danger that the Petitioner and co-defendant below could

seize a weapon or destroy evidence. It follows that the

warrantless search at the scene of the arrest and the sub-

sequent warrantless inventory search could not be

justified as searches incident to arrest. See Preston v.

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

INVENTORY SEARCH

The second exception is a derivative of the

automobile exception; the inventory search. This court

has recognized and upheld the warrantless search of

automobiles for two reasons. First, an automobile is in-

herently mobile and creates circumstances of emergency

that renders enforcement of the warrant requirement

impossible. Carroll v. United States, 267 U.S. 132

(1925). Second, the expectation of privacy one has in an

automobile is less than one may have in his home due to

the governmental control over automobiles and the

public nature of automobile travel.

As part of its community caretaking function and in

the interests of public safety, the police frequently take

automobiles into custody. The court in South Dakota v.

Opperman, 428 U.S. 364 (1976) held that police intru-

sions into automobiles in their custody would be

reasonable if:

(1) The intrusion was intended to protect the

owner’s property while it remains in custody.

(2) The intrusion was intended to protect the

police against claims or disputes over lost or

stolen property.

18

(3) The intrusion was intended to protect the

police from potential danger.

“To be constitutionally permissible, an inventory search

must be no more intrusive than necessary to respond to

these goals alone.” United States v. Edwards, 554 F. 2d

1331 (5th Cir. 1977).

In the instant case, the record is totally devoid of

any testimony which would shed light on the agent’s

purpose when they inventoried the automobile. In

Opperman, supra, the court stressed that such warrant-

less searches were reasonable only if they occurred pur-

suant to the government’s caretaking function. Here,

the Government has adduced no evidence regarding

standard F.B.I. practices which are consistent with this

caretaking function. There was not testimony as to the

incidents of theft and vandalism which would

necessarily require an intrusion into the automobile to

search its contents for the benefit of both the owner and

the police. In short, there is not one shred of evidence in

the record which goes to fulfill any of the three bases

which render a warrantless inventory search reasonable

under the guidelines developed by the Supreme Court.

This court in Opperman, supra, inferred that a

warrantless inventory search becomes unreasonable

when done as a pretext for an investigatory police

motive. Supra, at 3100. See also United States v.

Edwards, supra; United States v. Diggs, 554 F.2d. 166

(3rd Cir. 1976) (Gibbons J. concurring). In Opperman,

Justice Burger cited! a statement made in Cody v. Dom-

browski, 413 U.S. 433 (1973) to distinguish the caretak-

'\South Dakota v. Opperman, 428 U.S. 364, 369 (Footnote 4).

19

ing function engaged in by state officials and the func-

tion of federal officials in Cody the court said,

“The contact with vehicles by federal law en-

forcement officers usually, if not always, in-

volves the detection or investigation of crimes

unrelated to the operation of a vehicle.”’ Supra,

at 440.

Petitioner submits that the federal officials involved in

the instant case were acting in furtherance of an in-

vestigation into criminal activity when they searched

the Petitioner's vehicle, and were not performing any

caretaker function,

The scheme of events leading up to and through the

time of arrest plainly substantiate that conclusion.

Agent Thurman, the arresting officer in the case at bar,

indicated that although he had co-defendant below

Braham’s home under surveillance he made no attempt

to approach the home and make an arrest. (R. 156, 157,

159). Agent Thurman chose to make the arrest in the

middle of a lane of traffic rather than having the

Petitioner and co-defendant below pull over to the

shoulder or on to a side street as a local police officer

would do for an ordinary traffic violation. (R. 160, 161).

The Petitioner and co-defendant below were also not

given an opportunity to secure the vehicle through their

own efforts despite the fact that they were safely in

custody.’ (R. 165) These circumstances, coupled with

the extensive searches of the car’s interior at the scene of

the arrest as well as back at the F.B.I. offices, indicates

that the agents wanted custody of that vehicle and

arrested the Petitioner and co-defendant below in a

manner which assured them of getting it. It follows that

the Government’s inventory search is unreasonable

within the meaning of the Fourth and Fourteenth

Amendments.

The record indicates that a search warrant was

obtained four days after the Government’s inventory on

March 4, 1977. (R. 166, 167). Many of the items listed in

the inventory were seized pursuant to the March 8, 1977,

search warrant. (R. 166, 169). Where a subsequent

search is the direct result of information gained from a

previous illegal search, the evidence or fruits of the sub-

sequent search must also be suppressed. Wong Sun v.

United States, 371 U.S. 471 (1962); United States v.

Haes, 551 F.2d 767 (8th Cir. 1977). It follows that the

evidence obtained pursuant to the March 8th search

warrant should have been suppressed since the evidence

which enabled the agents to procure a warrant was ob-

tained in a manner contrary to the Fourth Amendment

to the Constitution of the United States.

? Although the F.B.I. agents were not bound by the provisions

of the Dade County Code, Section 30-384 (a) (6) of the Code

provides an interesting and proper method of disposing of the vehi-

cles on the public streets. The provisions provide that where a

driver is taken into police custody, the department, prior to im-

pounding a vehicle, should the driver with a reasonable opportunity

to provide for removal of the vehicle or the owner, may elect to allow

the vehicle to remain in place, if lawful.

The Fifth Circuit in their opinion attached as Ap-

pendix A to this Petition, found that the inventory

search was not unreasonable. Yet they go on to state

that, “‘the vehicle was stopped in the middle of an inter-

section’. (Appendix A). The routine procedures that the

police should have taken at that point that the

Petitioner and his co-defendant below were removed

from the car was to insure that the car was secure and

locked, and they would be allowed a cursory examina-

tion of the vehicle without taking an inventory at the

time. They would also be entitled to do the same type of

examination at the police station without an open and

full inspection. Since the car was in the custody of the

authorities, and they were not going to allow the car to

be removed from their custody, it would have been

reasonable and in accordance with the decisions of this

court for the F.B.I. to have obtained the search warrant

prior to the time of taking inventory.

The March 8, 1977 search warrant obtained after

the discovery of all the items in the vehicle becomes a

nullity and a travesty of the protections of the Fourth

Amendment.

22

POINT II

WHETHER THE DISTRICT COURT

ERRED IN DENYING PETITIONER’S MO-

TION FOR MISTRIAL BASED ON THE

GOVERNMENT’S FAILURE TO DISCLOSE

TO THE PETITIONER A POLICE FINGER-

PRINT REPORT WHICH WAS BOTH EX-

CULPATORY AND MATERIAL WHERE

THE PETITIONER HAD MOVED FOR

PRODUCTION OF FAVORABLE

EVIDENCE, IN DEPRIVATION OF

PETITIONER’S RIGHTS TO DUE

PROCESS OF LAW UNDER THE CON-

STITUTION OF THE UNITED STATES.

“Society wins not only when the guilty are con-

victed, but when criminal trials are fair; our system of

the administration of justice suffers when any accused is

treated unfairly.” Brady v. Maryland, 373 U.S. 83

(1963). The Supreme Court was concerned with convic-

tions that were improperly obtained through deliberate

deception or suppression of favorable evidence. To

preserve an accused’s right to due process of law, the

court promulgated the following:

“We now hold that the suppression by the

prosecutor of evidence favorable to an accused

upon request, violates due process where the

evidence is material either to guilt or to punish-

ment, irrespective of the good faith or bad faith

of the prosecutor.”’ Supra, at 87.

In the instant case, the Petitioner and co-defendant

below made a pre-trial motion for production of all

23

favorable evidence. (R. 43, 44). The Government told

the court that it had turned over all Jencks material and

had complied with the discovery mandate. (R. 201). It

became apparent during the testimony of Frederick

Stief, however. that an official fingerprint report existed

and that it had not been turned over to the Petitioner.

(R. 464, 466). The Petitioner and co-defendant below’s

motion for mistrial based on the Government’s failure to

turn over such material evidence followed. (R. 466, 468).

Where a request for favorable evidence is made, the

prosecutor’s duty to respond to that request is derived

from the exculpatory character of the evidence in his

hands. In United States v. Agurs, 427 U.S. 97 (1976) the

court discussed the standard of materiality which gives

rise to a duty of the prosecutor to turn over exculpatory

matter and, in the instance where the prosecutor is

negligent in his duties, grant an accused a new trial:

if the omitted evidence creates a

reasonable doubt that did not otherwise exist,

constitutional error has been committed. This

means that the omission must be evaluated in

the context of the entire record. If there is no

reasonable doubt about guilt whether or not

the additional evidence is considered, there is

no justification for a new trial. On the other

hand, if the verdict is already of questionable

validity, additional evidence of relatively

minor importance might be sufficient to create

a reasonable doubt.” Supra, at 113.

In the instant case, the central issue for resolution

was the identity of the perpetrators of the offense.

Technician Stief noted on his report that three latent

24

TALE TI TENT,

fingerprints of value had been lifted from the plastic

handcuffs that were used to bind the victims. (R. 464).

These prints, however, were not identified. (R. 464). The

importance of the more detailed and thorough official

report, to which Technician Stief made reference to, is

obvious. It is the comparison of latent fingerprints to

fingerprints that ‘are on file that gives the report it’s

material character.

One may reasonably assume that the fingerprints

report was not turned over the Petitioner and was not in-

troduced into evidence because the latent fingerprints

were not those of the Petitioner. The Government would

have surely produced the report of its findings were

favorable. The Government’s claim that it lacked

knowledge of the report is insignificant when one con-

siders that it had knowledge that Technician Stief had

lifted fingerprints on the scene. It follows that the

reasonably diligent prosecutor would make an effort to

determine the result of the lifting of fingerprints; the

fingerprint comparison which is contained in the official

fingerprint report. The deterrence of a prosecutor's

negligence in failing to bring to light all significant

evidence which was known or should have been known

to him, has been held to be an important reason for

granting an accused a new trial. Ross v. Texas, 474 F. 2d

1150. (5th Cir. 1972).

The Government’s failure to produce the report

prevented the Petitioner from utilizing evidence which

was crucial to his defense of misidentification. The

report would have been helpful to prove that the

Petitioner was not a perpetrator in the incident.

Without knowledge of the report, the Petitioner was also

deprived of the opportunity to prove whose fingerprints

were on that tape.

25

The materiality of the omitted evidence must be

considered in relation to any other evidence on the

record. Here, none of the victims of the offenses were

able to identify either Petitioner or co-defendant below

in a lineup. (R. 586, 587). Mrs. Van Anglea and Mrs.

Adler positively identified two men, not the Petitioner,

who appeared in the same lineups. (R. 577, 580, 582-

587). The people in the Ferden home identified two men

— not the Petitioner, just a short time after the offense

occurred. (R. 549). The omission of an exculpatory

fingerprint report is certainly sufficient to create a

reasonable doubt that did not otherwise exist, and in the

context of the victims’ previous inability to positively

identify the Petitioner, serve to deny the Petitioner due

process of law. In Agurs, the court properly noted;

* . . the defendant should not have to satisfy

the severe burden of demonstrating that newly

discovered evidence probably would have

resulted in acquittal.’ Supra, at 111.

One should not underestimate the effect of a finger-

print report to a jury. In Ross, supra, this court

recognized the impact of these reports when it noted:

‘We would reach a different result if the un-

disclosed evidence were a laboratory report

showing that another person’s fingerprints were

on the knife used in the Broushett robbery.

Such evidence would be of vital, critical and

significant importance in determining the

truth of the charges and would have a bearing

on the fundamental fairness of the trial.”

Supra, at 1154.

ic iam iim ascii caaiaiar ie aa mceeitie

The official fingerprint report is clearly material to the

Petitioner's defense and the fairness of the trial. The

Petitioner's right to a fundamentally fair trial under the

Due Process Clause of the Fourteenth Amendment

necessitates the granting of a new trial.

27

CONCLUSION

For the foregoing reasons based on the cases,

authorities and policies cited therein, the Petitioner

respectfully urges that a Petition for the Writ of Cer-

tiorari be granted.

RESPECTFULLY SUBMITTED

GEDRICH & STEIN

BY:

Harvey N. Gedrich

Attorney for Petitioner

550 South Federal Highway

Suite 101

Fort Lauderdale, Florida 33301

Telephone: (305) 462-7200

28

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy

of the foregoing Petition for Writ of Certiorari was fur-

nished to the Solicitor General, Department of Justice,

Washington, D.C. 20530, this 13th day of October, 1978.

GEDRICH & STEIN

BY:

Harvey N. Gedrich

Attorney for Petitioner

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 77-5573

SUMMARY CALENDAR*

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Vv.

WILLIAM JOSEPH HICKEY, and

RICHARD WILLIAM BRAHAM,

Defendants-Appellants.

Appeals from the United States District Court

for the Southern District of Florida

(June 8, 1978)

Before GOLDBERG, AINSWORTH, and HILL, Circuit

Judges.

PER CURIAM:

“Rule 18, 5 Cir., see Isbell Enterprises, Inc. v. Citizens

Casualty Company of New York, et al., 5 Cir., 1970, 431 F.2d 409.

30

The defendants, William Joseph Hickey and

Richard William Braham, were found guilty by-jury of

impersonating a federal officer in violation of 18

U.S.C.A. §912 and of using a firearm during the com-

mission of a felony in violation of 18 U.S.C. §924(c)(1).

The defendants assign error to (1) the district court’s

refusal to exclude from evidence a gun which was found

during an inventory search of their automobile and to

(2) the district court’s denial of their motion for a mis-

trial based on the government’s failure to disclose a

police fingerprint report. We affirm.

The testimony at trial established that on March

11, 1976, and on April 28, 1976, the defendants, acting as

internal revenue agents, entered two residences. Using a

gun on both occasions, the defendants tied and bound

their victims and then stole various items from the

premises. On March 4, 1977, the defendants, pursuant

to a grand jury indictment, were arrested at an intersec-

tion after their car had stopped for traffic. The defen-

dants were arrested and placed in custody in the back of

a patrol car. The defendants’ car was immediately taken

to the office of the Federal Bureau of Investigation

where a complete inventory was made of the articles in-

side the car. During the inventory a handgun was found

in a box which was located on the front floor on the

passenger side. The trunk of the car was not searched at

this time.

The record reveals that the procedures followed

here in making the inventory search of the vehicle were

not unreasonable. The vehicle was stopped in the mid-

dle of an intersection. It was taken into custody in order

to remove it from traffic. When officers lawfully im-

pound a vehicle in the regular course of their duties, the

31

constitution allows them to search the vehicle if to do so

accords with their routine procedures. The routine

caretaking procedures of securing and inventorying the

car's contents, which were implemented in the case at

bar, have been widely sustained as reasonable under the

Fourth Amendment. See South Dakota v. Opperman,

428 U.S. 364 (1976); United States v. Edwards, 554 F.2d

1331 (5th Cir. 1977); United States v. Kelehar, 470 F.2d

176 (5th Cir. 1972); United States v. Ducker, 591 F.2d

1190 (5th Cir. 1974). There is nothing in the record to in-

dicate that the officers had any investigatory motives in

searching the vehicle.

Appellants’ next contention that the district court

erred in refusing to grant their motion for a mistrial is

also without merit. The motion for a mistrial came

about as the result of testimony of government witness

Frederick Stief, a police technician. He was called by

the government to prove the chain of custody of some

plastic handcuffs which had been used by the per-

petrators. During the course of his testimony, he stated

that, on one occasion, he had taken some latent finger-

prints from such handcuffs. The evidence indicated that

the perpetrators had used gioves whenever they handled

the cuffs. Further, the evidence was uncontradicted that

the latent fingerprints found had never been identified.

Finally, the jury was informed that fingerprints found

on the cuffs were not the fingerprints of either of the

defendants. The motion for mistrial, and the assign-

ment of error, is based upon appellants’ contention that

the government was required to have informed the

defense of a report of the existence of these unidentified

fingerprints. The record shows that the prosecutor had

never been made aware of and was never in possession of

any such report. It was not crucial, critical, or highly

32

significant to the defense to learn that, on plastic arti-

cles, fingerprints were found. The fingerprints were not

sought to be used to connect the appellants to the crimes

and could only show that these articles had, at some

time, been handled by some unidentified member of the

general public. The fingerprints did not tend to support

any contention made by appellants nor did it indicate in

any significant way that the appellants were not the per-

petrators of the offense. See United States v. Crockett.

534 F.2d 589, 601 (5th Cir. 1976) and cases cited therein.

The judgment is AFFIRMED.

33

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 77-5573

UNITED STATES OF AMERICA,

Plaintiff-Appelle,

versus

WILLIAM JOSEPH HICKEY and

RICHARD WILLIAM BRAHAM,

Defendants-Appellants.

Appeals from the United States District Court for the

Southern District of Florida

ON PETITION FOR REHEARING

(August 14, 1978)

Before GOLDBERG, AINSWORTH and HILL, Circuit

Judges.

PER CURIAM:

34

IT IS ORDERED that the petition for rehearing

filed in the above entitled and numbered cause be and

the same is hereby DENIED.

ENTERED FOR THE COURT:

/s/ James C. Hill Po

United States Circuit Judge

35