# Petition — Hickey v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 439 U.S. 960

## Text

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Appendix A — Unpublished Opinion of the United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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1896%3A1. Public record. Not legal advice.