Petition — Shear v. United States

> Supreme Court, U.

FILE >” |

f

MAR 2 1979

In Tus “MigHAR RODAK, JR., CLERK

Supreme Court of the Bnited me -

October Term, 1978

“78-1 348

CAROLE SHEAR,

Petitioner,

-against-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

MICHAEL S. WASHOR

A Member of the Bar of the

United States Supreme Court

299 Broadway

New York, N.Y. 10007

Tel. (212) 732-2077

WASHOR & WASHOR, ESQS.

Attorneys for Petitioner

Dick BAILEY PRINTERS, 290 RICHMOND AVE., S.1., N.Y. 10302

VOL: (202) 007-5998

TABLE OF CONTENTS

APPENDIX

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Appendix A—Constitutional Amendments...........

CITATIONS

Barker v. Wingo 407 U.S. 514..

Brewer v. Williams 430 U.S. 387

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14

21

16

17

Brookhart v. Janis 384 U.S.1..... 6.0... c cece cecees

Carniey v. Cochran 369 U.S. 506

Elkins v. U.S. 364 U.S. 206

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Fuentes v. Shevin 407 U.S. 67

Glaser v, U.S. 315 U.S. 60

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Mapp v. Ohio 367 U.S. 643

Miranda v. Arizona 384 U.S. 471

Sample v. Eyman 469 F.2nd 819 (9th Cir. 1972)

Santobello v. New York 404 U.S. 357. ..........0005.

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U.S. v. Hayes, 385 F.2d 375 (4th Cir. 1967)

U.S. v. Marchildon, 519 F.2nd 337 (8th Cir. 1975)

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U.S. v. Nielson 392 F.2nd 849 (7th Cir. 1968)

U.S. v. Wade 388 U.S. 218

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1

IN THE SUPREME COURT |:

OF THE UNITED STATES

CAROLE SHEAR,

Petitioner,

-against-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

Writ of Certiorari issue to review the judgment and order of the

d Circuit,

Court of Appeals for the Secon

oo paginas February 8, 1979, affirming a judgment of the

crime of Possession with intent to distribute and i

Cocaine, in violation of Title 2

841(a)(1) and Section 952(a).

As a consequence of these con

Metropolitan Correctional Facility for evaluation and study,

pursuant to Title 1

thereafter, on December 13, 1978, in

receive psychiatric care in the comm

of the United States Probation Department

OPINION BELOW

The United States Court of Appeals for the Second Circuit

- ; =>

firmed the judgment of conviction without written opinion.

JURISDICTION

The Order of the i

con United States Court of Appeals for the

men from the bench on February 8,

The jurisdiction of this Court is invoked, made and confer-

red under 28 U.S.C. |

sae oa and under Rule 19(1) of the Rules

QUESTION INVOLVED

ia Was the repent Constitutional rights under the

on to the United States Constitution violated

when government used the petitioner’s

RULES OF THE SUPREME COURT

ys he Considerations Governing Review on Certiorari.

: ¢w on writ of certiorari is not a matter of right, but

accordance with the find-

unity under the supervision

of sound judicial discretion, and will be granted only where

there are special and important reasons therefor. The following,

while neither controlling nor fully measuring the Court’s discre-

tion, indicate the character of reasons which will be considered:

(a) Where a state court has decided a federal question of

substance not theretofore determined by this court, or has

decided it in a way probably not in accord with applicable deci-

sions of this court.

(b) Where a court of appeals has rendered a decision in

conflict with the decision of another court of appeals on the

same matter; or has decided an important state of territorial

question in a way in conflict with applicable state or territorial

law; or has decided an important question of federal law which

has not been but should be, settled by this court; or has decided

a federal question in a way in conflict with applicable decisions

of this court; or has so far departed from the accepted and usual

course of judicial proceedings, or so far sanctioned such a

departure by a lower court, as to call for an exercise of this

court "5 power of supervision.

STATEMENT OF THE CASE

The Petitioners, LaMorte and Shear, were returning from

Beirut, Lebanon .(39)* by way of London; they arrived at JFK

on TW Flight No. 701 at approximately 7:50 p.m. on February

2, 1978. Acter retrieving approximately five pieces of luggage,

they went ditectly. to customs; the custom agent on duty was

Agent Resnick. After giving their passports and completing

custom declarations (27) they then identified which pieces of

luggage belonged to each one (the black-LaMorte; the blue-

Shear) (35). Agent Resnick then examined the bags and asked if

the two large pieces were new (39-40). LaMorte then stated that

*Numerals in parentheses refer to the pagination of the transcript of the trial

and pre-trial hearing to suppress evidence.

my

Air France had lost their luggage going overseas and the two

pieces of luggage under question were replacements (41). This

fact was apparently verified by DEA Agent Giaimo (154-155).

Agent Resnick then felt a heaviness in the bottom of one of the

pieces of luggage after he had apparently emptied its contents

on the counter. Then he inserted a knife in the bottom of said

bag and found a white powder (41-42). He then summoned the

senior Inspector Ruoff. Agent Resnick then took- the white

powder and conducted a field test (O.D.V.) in the staff office.

A positive cocaine reaction resulted (43). Immediately

thereafter, LaMorte and Shear, were then escorted to the staff

office; at approximately 8:50 p.m. (56). Agent Resnick read the

Miranda rights to both individuals and advised them that they

were under arrest (44-45); Shear then became very nervous

(73-74) and quite upset (75). The DEA agents arrived at approx-

imately 9:15 p.m. (151) and they then spoke to both petitioners

at the DEA office at the International Arrivals Building (156). A

full search of the luggage revealed that a cardboard, the size of

the case itself, was glued in place and sealed with masking tape.

Several packages of gauze wrapped plastic bags containing co-

caine were removed from each suitcase (49 and $5).

DEA Agent Giaimo readvised both of the petitioners of

their rights (124). Again, later on, AGent Giaimo reiterated the

Miranda rights approximately an hour later at the DEA office

and for the first time LaMorte related that he was promised

$50,000 to smuggle the cocaine into the United States and

deliver it to a Hussein Jaffari Massaholto (128-129) on February

6, 1978. He added that he had told Shear that the suitcases con-

tained hashish (130). There was no testimony in any manner or

form as to when LaMorte told Shear that the suitcases contain-

ed hashish. Shear eventually stated that she had been told there

was hashish in the suitcases. The statements were allegedly made

at approximately 12:00 a.m. (131).

Both petitioners testified and denied knowledge, intent,

and participation in the cocaine smuggling operation.

The petitioner Shear testified that she reported her luggage

lost in January of 1978 while en route to Beirut, Lebanon (239)

and after approximately two weeks subsequcat to, the. report,

Air France remunerated the sum of $350 (242-243) to both of

the petitioners; on or about January 31, 1978, Air France sug-

gested a particular luggage store to replace lost; luggage and

damaged luggage; the two bags (luggage) which were paid for by

Air France were subsequently delivered to their hotel in Beirut,

Lebanon (247). Carole Shear further testified that she packed all

of the clothing in their dry cleaning wrappers (248-249) and in-

dividually packed her clothing separately from those of Mr.

LaMorte. |

While at Kennedy Airport at or about the time that the lug-

gage was opened and being inspected, Shear immediately told

Agent Resnick that the clothing she had packed in the black bag

was now in the blue bag and in complete disarray (249). She

stated that the bags were obviously not hers (253-255).

Both of the petitioners acknowledged receiving Miranda

warnings but stated that each over and again had requested an

attorney (258, 259, 260-261, 263, 268-269, 270-271, 274, 278,

374, 381, 403).

Shear also denied making any incriminating admissions

(292-293, 296). !

There were no statements that were recorded, written, or

preserved in any manner or form. There was no written waiver

of any constitutional rights executed by either of the petitioners

although such written waivers were available to both DEA

agents and custom agents.

PERTINENT FACTS AND TESTIMONY RELATED

TO THE PETITIONER’S CLAIM THAT THE

‘GOVERNMENT FAILED TO MEET THE BURDEN OF

ESTABLISHING THAT THE PETITIONER WAIVED

HER CONSTITUTIONAL RIGHTS. UNDER THE

FIFTH AMENDMENT TO THE U.S. CONSTITUTION,

Agent Resnick testified at a pre-trial hearing to suppress

evidence that he read the Miranda warnings to Shear and that

said ‘“‘warnings’’ were given to Shear several times; the agent

communicated to other agents the fact that Shear was advised

accordingly; Resnick alsc advised the other agents as well that

Shear had made no statement at that point in time. °

At the trial, when Agent Resnick testified on behalf of the

Government, he further stated that Shear refused to waive her

rights.

Agent Giaimo testified on behalf of the Government and

indicated that he personally advised the petitioner of her

constitutional rights; he testified that he advised Shear of her

rights several times; he further testified that he advised Shear

that she could receive fifteen years in jail for the crime for which

she was being charged. He acknowledged that he was himself

told by Agent Resnick that Shear was previously admonished of

the ‘*‘Miranda’’ warnings.

Agent giaimo acknowledged prior use of the waiver forms

that are utilized by the government, wherein an accused

acknowledges in writing, a waiver of constitutional rights; he

further testified that he did not know whether or not such forms

were available at his office at the time of the interrogation; in

finality, he testified that he did not have Shear sign any waiver

forms whatsoever.

Agent Castillo testified at the hearing on behalf of the

Government and stated that he was present when Shear received

the ‘‘Miranda’’ warnings; he further stated that at the inception

Shear denied any impropriety or violation of the law. He also

acknowledged that Shear was continually readvised of her cons-

titutional rights.

Agent Castillo also acknowledged the accepted use of

waiver forms; however, he testified that no forms were provided

for Shear and in fact Shear did not sign any waiver form what-

soever.

Agent Resnick, on cross examination, testified as follows:

At Page 70:

‘A, I read her her righ

id, ‘Yes.’ ;

per you present when her rights were read to her

again? ¥

A. I was in the room.

At Page 71:

“Q, And the rights were read

am I correct? ‘

A. I would believe so, by DEA, yes.

72:

no. Dida you tell one of the other officers that you

already read her her rights?

, 1 did.

=m joo you make it to other Customs agents, that

statement?

A. To Senior Inspector Ruoff.

** *

Q. Didn’t you tell him ‘I already gave her her rights?’

A. I said, ‘I read her her rights.’

73: ;

‘nap, nd she say a single word from the time you saw her

to the time you placed her under arrest?

A. Yes.

_ What did she say?

Ҥ i said at the belt that they lost their luggage and

Air France sent them to some store in Beirut, and Mr.

LaMorte said, ‘Don’t say nothing.’

Q. Mr. LaMorte told her to keep q

effect?

A, Yes.

q. Did she comply?

A. Yes.

Page 74:

= And then you went into the rear of the office where

you did read her her rights?

A. Yes.”

ts and I asked if she understood.

several times thereafter;

viet, in words to that

At Page 76:

*“*Q. Ruoff was still there, am I correct?

A. That I don’t know.

**¢¢s

Q. And he was there at the time you read the rights to

Shear, the Miranda warning; wasn’t it?

A. Yes, I believe so.’’

At Page 78:

“‘Q, How long after you read the rights to Shear did the

DEA arrive?

A. About approximately 20 minutes.”

At Page 81:

**Q. 20 minutes later DEA arrived?

A. Yes.

Q. Who arrived?

A. Agent Giaimo, and another agent with Agent.

Giaimo.”’

At Page 82:

“*Q. Did you also tell them you read the rights? \

A. Yes.

**e*s

Q. Did you tell them she made no statement at that

point?

Fes FOG eins -

Q. Didn’t you tell the DEA that you had already advised

her of her rights?

A. Yes.”

Agent Resnick testified at the trial at pages 44-45:

“THE COURT: Yes. You read the entire thing that you

read him. Read it to them.

THE WITNESS: Okay. I made myself known. I said,

“‘My name is Resnick, U.S. Customs Inspector, Badge

Number 1071, advised the person that he was being detain-

ed, was under arrest, and I said, ‘Before we ask you any

questions, it is mu duty to advise you of your rights. You

have the right to remain silent. Anything you say can be

used against you in Court, or in other proceedings. You

9

have the right to consult an attorney before making any

statement or answering any question, and you may have

him present with you during questioning. You may have an

attorney appointed by the United States Magistrate or the

Court to represent you if you cannot afford or otherwise

obtain one. If you decide to answer any questions now

with or without a lawyer, you still have the right to stop the

questioning at any time, or to stop the questioning for the

purpose of consulting a lawyer. However, you may waive

the right to advice of counsel or your right to remain silent

and answer questions to make a statement without con-

sulting a lawyer, if you so desire. Do you understand your

rights?’ He said, ‘No.’ I then went to Miss Shear, I iden-

tified myself. I read her the same rights from the card and

she answered, ‘yes.’ ‘Do you understand your rights?’ and

she said—‘Do you waive your rights?’ She said ‘No.’ ”’

Agent Giaimo testified as follows:

At Page 100:

““Q. Now, at that time did you interview the De-

fendants?

A. Yes. Myself and Agent Castillo asked each De-

fendant separately to accompany us to a separate room

which is part of the Customs staff office, but separated by

a glass wall, and it’s fairly soundproof, and it’s got a glass

door.

Q. Can you describe what you said to them and what

they said to you?

A. Again I advised them that—each of them

separately—that they were under arrest.”

At Page /01:

‘“‘THE WITNESS: That they were each under arrest,

and advised them of their Constitutional rights.

Q. How did you do that?

A. By a card that I have. It’s a DEA form.”’

At Pages 103-104:

**Q, Did you, subsequent to your interview with Mr.

—_—

10

LaMorte, did you have an interview with Miss Shear?

A. Yes, I did.

Q. And can you tell us what you said to her and what she

said to you?

A. I again advised her of her rights and the fact that she

was under arrest.

I asked her if she knew anything about the cocaine in the

suitcases, and she said she didn’t.

I asked them both a series of standard questions relative

to the suitcases, each of them separately, and they denied

any knowledge of the suitcases, the contents.’’

At Page 112:

**Q. Mr. Giaimo, how many times did you advise Miss

Shear of her rights?

A. At least once, formally.

THE WITNESS: At least twice, probably more like

three or four times.’’

At Page 113:

**Q. Did you ever tell her she could get 15 years in this?

A. Approximately 15 years I believe was the maximum.

Q. Did you tell her that she was in lots of trouble?

A. Yes.

A. I told her if convicted she stood to spend 15 years in

jail.’

At Page 121-122:

**Q. Did anybody tell you that they had already given

the rights to the Defendant Shear?

A. Generally speaking, one of the first questions I asked

the inspector is ‘Have you advised the Defendants of their

rights?’

Q. Which inspector?

A. Seizing inspector, which would be Mr. Resnick.

Q. What did he say?

A. I don’t recall.

Q. Didn’t you ask him whether he gave any rights?

11

A. Yes, I did.

Q. What did he say?

A. He said he did.”’

At Pages 124-125:

Q. You're a DEA agent for how many years?

. Four years.

mn You roa what a consent form is; don’t you?

. Yes. .

m And you know what a waiver form is?

o. haa you know what a rights form is; am I correct?

o aaa you have these forms available at your office; do

you now?

imes.

a yo testimony they weren’t available at that

ight?

~~ I don’t know if they were or not.

Q. You didn’t even look?

A. No.

**

Q. Did you have her sign the rights form?

A. No. ;

Q. Did you have her sign the waiver form?

A. No.”

Agent Castillo testified at the trial as follows:

Page 201-202:

ron Were you pre;sent when Miranda warnings were

given, if they were given, at the Customs area?

A. Yes, sir. ae

Q. Do you remember when Agent Giaimo gave the

Miranda warnings to the Defendant Shear?

A. Yes, sir. :

i ly time?

. Can you give us an approximate

Ps shortly after arriving at the TWA terminal at JFK

Airport.

12

Q. And what questions were asked by Agent Giaimo of

the Defendant Shear at that time?

A. Normal q: -stions; her name, her age, where she was

coming from.

Q. Pedigree questions?

A. Pedigree questions, as well as asking her what the cir-

cumstances were behind her bringing in the suitcases to

JRK terminal.

Q. What did she say?

A. She stated that she knew nothing about it, concerning

how the contraband had been placed in the suitcases.

Q. She was told that there was contraband in the suit-

cases; am I correct?

A. Yes, sir.”’

At Page 203:

“*Q. Other than the part of the Miranda warnings, was

she ever—did she ever ask whether she wanted a lawyer?

A. Sie was again advised of her rights at the DEA of-

fice.

Q. This is the second time?

A. Second time, yes.” ~

At Page 206:

“*Q. When you get back to the Customs area, she is

again advised of her rights?

A. At the DEA office, yes, she is.

Q. And of course you had forms back there, did you

not; waiver forms?

A. I really don’t know if there’s forms available in the

office.

Q. You know what the forms are?

A. Yes, I do.

Q. Those are the forms that act to waive any rights.

A. Yes. I know the forms.

Q. And there’s a place where the defendant given the

rights can sign their name; am I correct?’’

At Pages 209-210:

**Q. All right. Now, did you tell her at any time what she

13

was going to be charged with?

A. Yes. That she was being c

ederal Narcotics Law.

; Q. Did you tell her specifically w

A. Yes. Cocaine.”

harged with violation of the

hat narcotics?

=

14

REASONS FOR GRANTING THE WRIT

THE GOVERNMENT FAILED TO ESTABLISH THAT

CAROLE SHEAR HAD MADE A FREE, KNOWING,

AND INTELLIGENT WAIVER OF HER CONSTITU-

TIONAL RIGHTS UNDER THE FIFTH AMENDMENT

TO THE UNITED STATES CONSTITUTION.

It is now axiomatic, that ‘‘Miranda’’ warnings must be

given by law enforcement, to an accused who is in custody

before any questioning commences; this is not the end of the

law enforcement obligation, but the beginning. Merely reading

or advising of the ‘‘Miranda’’ warnings is not enough. It is en-

cumbent on law enforcement to obtain a free, knowing and

voluntary waiver of the rights from the very person being or

about to be questioned.

Courts have gone so far as to hold:

**Once it has been determined that a person taken into

custody is too upset to assert or waive his (her) rights

knowingly and intelligently under Miranda, all questioning

should cease until such time as that person is clearly

capable of so responding.’’ (Sample vs. Eyman, 469 F.2nd

819 (9th Cir. 1972).)

The Sample, supra, Court reasoned that when the Police

became aware that the accused was extremely high, emotional,

and detached from reality, all questioning should have ceased.

The rationale is that police insensitivity flaws any Miranda

**waiver’’ (see also, U.S. v. Marchildon, 519 F2nd 337, (8th Cir.

1975).)

This Supreme Court has provided specific guide lines under

Miranda, to render the proper and legal admonishments of

rights; however, this is not so with regard to the ‘‘waiver’’

aspect. There are no guide lines for the waiver of an individual’s

rights.

Both Federal and State Law Enforcement officials have

adopted a written waiver form, to aid in meeting the onus of

roving @

at: have held that the mere absence of a written waiver form

id not preclude, as a matter of law,

ptors on (U.S. v. Hayes, 385 F.2nd 375, 4th Cir. 1967), it

was reasoned and held that the prosecution’s heavy burden of

eke

eee ee

fusal to sign a waiver fo ll )

iti lack of understanding of the original Miranda rights as well

as the accu

Nielson, 392 F. 2nd 849, 7th Cir. 1968).

of the luggage being sear

ed; the petitioner Carole

16

valid waiver by an accused. While the Appellate

an effective waiver of

showing a valid waiver, was thereby increased where the waiver

form was not signed; it becomes apparent that the failure or

rm may well be indicative of the accus-

sed’s intent not to waive the Miranda rights. (U.S. v.

Almost contemporaneously with the search herein, on

February 2, 1978, by Customs Agents, the petitioner Carole

Shear expressed serious and alarming s

urprise that the contents

ched was in fact disturbed and switch-

Shear also immediately acknowledged

that the original luggage used in the trip abroad from the —

States had been lost and that the Airlines had paid for the “ne

bject of the instant search. At this point in

luggage,’ now the su

‘ak the petitioner was formally arrested and advised of her

“Miranda” rights; Custom Agent Resnick ne

testified (at the trial) that Carole Shear refused to waive he

rights. At page 82, he stated:

“Q.... Do you waive your rights?”’

“A, ,.. She said No.” gee iath

Thereafter, the petitioner was readvised of her rights bes

excess of four or five occasions and eventually asian “7

to the effect, many hours thereafter, that she had : a

the co-defeendant, Thomas LaMorte, that the contents

luggage contained ‘*hashish.”’

held that it

_ Zerbst (304 U.S. 458), the Court

wren i ‘ver demonstrating an intentional

f a known right or privilege.

These standards were enunciated in Johnson, supra, in « vss

text of demonstrating that the safeguards of a fair crimin

16

be adhered to. There is presently a basic requirement that a

**knowing’’ and ‘‘intelligent’’ waiver be articulated in a case in-

volving the validity of a defendant’s decision to forego a right

constitutionally guaranteed to protect a fair trial and the

reliability of the truth-determining process. (Schneckloth vy.

Bustamonte, 412 U.S. 218). This Court has established an ap-

propriately heavy burden on the Government before ‘‘waiver’’

could be found to be an intentional relinquishment or abandon-

ment of a known right or privilege and the basis for same is

found in the preservation of the fairness of the trial process.

(Schneckloth, supra).

The requirement of a knowing and intelligent waiver has

been applied to those rights which the Constitution guarantees

to a criminal defendant in order to preserve a fair trial; the stan-

dard of a knowing and intelligent waiver has most often been

applied to test the validity of a waiver of counsel either at trial

or upon a guilty plea. (Glaser v. U.S., 315 U.S. 60; Van Moltke

v. Gillies, 232 U.S. 708). e

The criteria to assess the effectiveness of a waiver has been

applied to other trial rights such as the right to confrontation, to

a jury trial, to a speedy trial, and the right to be free from twice

being placed in jeopardy. (Brookhart v. Janis, 384 U.S. 1;

Adams vy. U.S., 317 U.S. 269; Barker v. Wingo, 407 U.S. 514;

Green v. U.S., 355 U.S. 184).

The trial guarantees that have been alluded to above also

apply to the pre-trial stage of the criminal process and are

similarly designed to protect the fairness of the trial itself.

(Schneckloth, supra).

In U.S. v. Wade (388 U.S. 218) the Court indicated that the

standard of a knowing and intelligent waiver must be applied to

test the ‘‘waiver’’ of counsel at a particular lineup.

It is urged that in order for a waiver of constitutional rights

to be effective in any context it must at the very least be clear

and unequivocal. (Fuentes v. Shevin, 407 U.S. 67.)

In the case at bar, the petitioner Carole Shear unequivocal-

ly refused to waive any of her rights. Thereafter, the petitioner

- I ns sromes oe See

ati

ON Oe PL EE eT eT ee

ae ee er ee es

17

epea' i ‘‘Miranda’’ rights. In Brewer v.

tedly readvised of the Miran

wees 430 U.S. 387), the Court recognized wei »

statements given by the defendant were obtained only a > i

law enforcement’s use of psychology nigpiangaes .

ized that the

defendant. The Court recogni

B supra, was done with the specific intent to illicit in-

rewer,

i ical-

criminating statements. In the instant case, one can only log

ly and legally conclude that after Shear 7 vs am

titutional rights, that the repeated Miranda war i

aa ith the long hours of interrogation and subtle referenc .

cc ae to Shear most probably going vba os we ‘

acted and constituted a psychological approac som

with the intent to illicit incriminating — nab aie

It is now basic and fundamental that the p

ida to the government version of the underlying

facts related to the custodial sc sey ee

did not specifically requ rey; t :

pos bactaly disputed when viewing i tren 0 Se

sion of the incidents in question at the trial. T 8 seni

that the right to counsel does not depend nage . — oF wi

by the defendant. (Carnley v. Cochran, ee! : : on Jat on

y. Arizona, 384 U.S. 471). As a matter 0° act te so 9

that all courts must indulge in every reasona ep SS .

against waiver. (Brookhart, supra; Brewer, ~~ vt

the government can not deny tt at pe vit

ee hed and unequivocally refused to waive her ri e

(44-45) The Government must concede petitioner exercised he

fe strict standard regarding waiver applies equally to un

alleged waiver of the right to counsel whether at trial or a

18

critical stage of a pre-trial proceeding. (Brewer, supra;

Schneckloth, supra).

In the authoritative decision regarding the admonition of

constitutional rights, Miranda y. Arizona, supra, the Court held

at page 723:

“‘Once warnings have been given, the subsequent pro-

cedure is clear. If the individual indicates in any manner, at

any time prior to or during questioning that he wishes to

remain silent, the interrogation must cease. At this point

he has shown that he intends to exercise his Fifth Amend-

ment privilege; any statement taken after the person in-

vokes his privilege cannot be other than the product of

compulsion, subtle or otherwise.”’ ,

As enunciated in Escobedo v. Illinois (378 U.S. 478), if the

interrogation should continue without the presence of an at-

torney and a statement should be taken, an exceptionally heavy

burden rests upon the Government to demonstrate that the

defendant knowingly and intelligently waived his privilege

against self incrimination and his right to retained or appointed

counsel. :

An express statement that the individual is willing to make

a Statement and does not want an attorney closely followed by a

decision to speak with law enforcement officers could constitute

a waiver; but a valid waiver will not be presumed simply from

the silence of the accused after warnings are given or simply

from the fact that a confession was eventually obtained. (Miran-

da, supra)

19

defendant answers some questions or gives some information on

her own prior to invoking her right to remain silent at the time

interrogation. 2

: “is ny instant case, there were hours and hours of in

custody procedures and questioning. Considering that at the

initial stage of receiving the Miranda warnings, the gaa

Shear in fact refused to waive her constitutional rights, coup

with the lengthy period of time involved — 8 aot

i i he petitioner, leads to the con-

to have waiver forms signed by t

clusion that the Government has failed to demonstrate a know

ing and intelligent waiver by the petitioner. In Miranda, supra,

Court held at page 724 and 725: os

™ ‘‘Whatever the testimony of the authorities as to waiver

of rights by an accused, the fact of lengthy ame ee va

i i ion before a statement is

incommunicado incarceration Asc

i sed did not validly waive

is strong evidence that the accu eae

i i the fact that the indivi

rights. In these circumstances “a

stent with the conc

eventually made a statement is cons! :

ing i the interrogation

i hat the compelling influence of

Sau forced him to do so. It is inconsistent with any no-

tion of a voluntary relinquishment of the privilege - *

The requirement of warnings a ~~ a ste st _

ental with respect to the ift me

er and not simply a preliminary ritual to existing

methods of interrogation.”’

In Carnley v. Cochran, Supra, the Court held:

“‘Presuming waiver from a silent record is imper-

missible. The record must show, or there must be an

allegation and evidence which show, that an accused was

Offered counsel but intelligently and understandingly re-

jected the offer. Anything less is not waiver.”’

Again, in Miranda, supra, the Court held that where in-

custody interrogation is involved, there is no room for the con-

tention that the privilege is in fact waived if the individual

Notwithstanding the fact that the petitioner Shear did i

admit to specific knowledge of the agg IN 2 “soem

i i tatem

ine in the instant case, but made a s BA

o allege knowledge of the contents of the luggage containing

‘hashish,’ said statements are still effected by the ra

rights. Annies in Miranda, supra, the Supreme Court held:

‘‘No distinction may be drawn between ng 8d

statements and statements alleged to “ pene

exculpatory. If a statement made biep = 4 ig id

i u

culpatory it would, of course, never t

ee In fact, statements merely intended to be ex

20

culpatory by the defendant are often used to impeach his

testimony at trial or to demonstrate untruths in the state-

ment given under interrogation and thus to prove guilt by

implication. These statements are incriminating in any

meaningful sense of the word and may not be used without

the full warnings and effective waiver requirements for any

other statement.”

It is undisputed that the original law enforcement agency advis-

ing Shear of her constitutional rights had in fact conveyed the

same to the other agents at the time of turning her over to their

custody; there is no question that the obligation of the Custom

Agent in relating these facts to the Drug Enforcement Agency

should have indicated unequivocally that Carole Shear refused

to waive her rights. If there is any argument or dispute as to

such fact, it is brought to this Court’s attention that one arm of

the law has the burden of letting the other arm of the law know

exactly what has or has not been done with regard to an accus-

ed. In Santobello v. New York, 404 U.S. 357, the Court stated

at page 433:

“The staff lawyers in a prosccutor’s office have the

burden of letting the left hand know what the right hand is

doing or has done.”’

It becomes reasonably obvious that the Drug Enforcement

Agency in its readvising of Shear of her constitutional rights on

numerous occasions after the first admonishment, coupled with

the long hours of interrogation, repeated reference to the pro-

bability of Shear receiving a 15 year jail sentence, and the failure

to sign any waiver forms, was designed to extract a statement

from Shear when she had initially refused to waive her rights.

It is respectfully urged that during the pre-trial hearing and

the trial herein, the Government has failed to meet the burden

of demonstrating a clear and unequivocal waiver of constitu-

tional rights.

Finally, the use of the petitioner Shear’s statement by the

Government, in their case in chief violated due process as well as

21

the Elkins-Mapp bar to the use of illegally obtained evidence in

a criminal proceeding. (Elkins v. U. S. 364 U.S. 206; Mapp 3

Ohio, 367 U.S. 643). The progeny of Elkins, supra, deals as

with Sth amendment vic'ations and is not restricted to mere 4t

amendment proscriptions.

CONCLUSION

RESPECTFULLY SUBMITTED THAT THIS PETI-

IT IS

R A WRIT OF CERTIORARI BE GRANTED.

TION FO

Respectfully submitted,

MICHAEL S. WASHOR |

A Member of the Bar of the United States

Supreme Court

WASHOP. & WASHOR, ESQS.

Attorney for Petitioner

on Petition for Certiorari

la

APPENDIX

2a

APPENDIX ‘‘A”’

CONSTITUTIONAL AMENDMENTS

ART. V

No person shall be held to answer for a capital or otherwise

infamous crime, unlesls on a presentment or indictment of a

Grand Jury, except in cases arising in the land or naval forces,

or in the Militia, when in actual service in time of War or public

danger; nor shall any person be subject for the same offense to

be twice put in jeopardy of life or limb; nor shall be compelled

in any criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due process of law

nor shall private property be taken for public use, without just

compensation.