# Petition — Shear v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2560%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 442 U.S. 909 ## Text > 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 eeeeeveveeeveeveev eevee eee *eeeeeeveeeeeereeerpeeeee eevee evvwee eee eeeeneee Appendix A—Constitutional Amendments........... CITATIONS Barker v. Wingo 407 U.S. 514.. Brewer v. Williams 430 U.S. 387 a I oo cd vn cc rocccuccccececs eevee ee ee eeeeeeeeeeee 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 eevee eeeeeee eee eeeeeeeee Fuentes v. Shevin 407 U.S. 67 Glaser v, U.S. 315 U.S. 60 *eeee eee eee ee eee eeeeeeeenee eee ee ereeee eee eeeeeeeeeeee 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. eee eee eeeee U.S. v. Hayes, 385 F.2d 375 (4th Cir. 1967) U.S. v. Marchildon, 519 F.2nd 337 (8th Cir. 1975) “eee eeeee U.S. v. Nielson 392 F.2nd 849 (7th Cir. 1968) U.S. v. Wade 388 U.S. 218 eee eee eee eee eeenee 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? “§ 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2560%3A1. Public record. Not legal advice.