# Petition — Johnson v. Ohio > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0116%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 444 U.S. 826 ## Text i € Court, U.Q ° FILED IN THE | ‘ . APR 14 197 Supreme Court of the United States . Ocroser Term, 1978 L_MICHABL RODAK, JR., CLERR Case No. ERS <= ] 5 v4 3 ei JOHN JOHNSON, Petitioner, —_—vV.— State oF OHI0, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT OF THE STATE OF OHIO Bernarp A. BERKMAN BERKMAN, Gorpon, KANCELBAUM, Levy and Murray 2121 The Illuminating Building 55 Public Square Cleveland, Ohio 44113 (216) 781-5245 Attorney for Petitioner Grorce W. Papa J. MicnuarL Murray Of Counsel TABLE OF CONTENTS Table of Authorities........... CAMEOS BOLO i ccc ste ce cctsesecn 1 Jursidiction..... RF ee “o 2 Questions Presented for Review. . *e *e *ee 7? @€ = - _ 7 - J . 2 Constitutional and Statutory Provisions Involved.......... 7 Statement of the Case.......... 8 Reasons for Granting the i *e @ ff @ 14 I. An Important Question is Presented as to Whether a Change of Venue or Continu- ance is Required Where the Reasonable Likelihood that Prejudicial Pretrial Publi- city will Prevent a Fair Trial has been Shown by the Voir Dire Examination of the Jurors and by Affirmative Proof of Prejudicial Publi- city, Much of Which has been Induced by Law Enforcement Officials and Which Includes Attacks on the Defendant's Character, Inaccurate and Totally Untrue Information, Evidence Never Offered at Trial and Facts Which Would have been Inadmissible at DEERE Gects ChGhbbatsescacescer L4 -i- Se EE hk ttt TABLE OF CONTENTS (Cont. ) II. An Important Question is Presented as to Whether Peti- tioner's Fourth and Fourteenth Amendment Rights Were Violated by the Introduction at Trial of Evidence Seized During a Warrantless Midnight Search of Petitioner's Automobile Where the Record Shows Mere Acquiescence to Authority Rather Than Consent.....ceeceeee III. An Important Question is Presented as to Whether Peti- tioner's Fourth and Fourteenth Amendment Rights Were Denied by the Introduction of Evi- dence Directly Derived from the Illegal Arrest of the PEtitClONEeL. cccccecsccccsessccese IV. An Important Question is Presented as to Whether Peti- tioner's Fourth and Fourteenth Amendment Rights Were Violated by the Warrantless Seizure of Petitioner's Automobile One Quarter of a Mile from the Place of Petitioner's Arrest, and the Subsequent Warrantless Searches of the Automobile and the Seizures of Various Items Which Were Later Intro- duced in Evidence..cccccccccces V. An Important Question is Presented Where an Affidavit Which Supported the Issuance of a Warrant for the Search - ii- Page 26 30 35 TABLE OF CONTENTS (Cont.) Page of Petitioner's Home Failed to Set Forth Facts to Show the Basis for a Named Infor- mant's Conclusory Statements Which Were Necessary to any Attempted Showing of Probable Gio cbncee se Pete te eeabewaeean (“SS VI. An Important Question is Presented as to Whether There was Sufficient Proof that False Statements Were Included in a Search Warrant Affidavit by an Affiant with Reckless Disregard for the Truth so as to Have Required that the Search Warrant be Voided....... 44 VII. An Important Question is Presented as to Whether Peti- tioner Made a Voluntary, Knowing and Intelligent Waiver of his Privilege to Remain Silent Where Petitioner was Subjected to a Lengthy, Con- tinuous, Night-time, Custodial Interrogation Prior to Making Oral and Written Statements.... 47 VIII. An Important Question is Presented as to Whether the Petitioner was Denied his Sixth and Fourteenth Amendment Rights Where, While Petitioner was Being Subjected to Lengthy, Continuous, Custodial Interro- gation, the Interrogating Officers Took Affirmative Steps to Persuade Petitioner's = 114 ‘= TABLE OF CONTENTS (Cont. ) TABLE OF CONTENTS (Cont.) ==a° | Page Wife Not to Secure Counsel Appendix for Petitioner... ceeeeeeceees 52 Order of the Supreme Court IX. An Important Question is of the United States Presented as to Whether Peti- Extending Time to File tioner's Sixth and Fourteenth Petition for Writ of Amendment Rights were Vio- COPPER S55 oe hk kee eo cclklc ae lated by the Use at Trial of a Statement Which Was Obtained Order of the Ohio Supreme After Indictment, in the Court Denying Motion for Absence of Counsel and After SAVERS. ee el ee Petitioner had Clearly Refused to Make any Statement Without Order of the Ohio Supreme the Presence of His Attorney... 53 Court Dismissing Peti- ere tioner's Appeal of Right..... A3 X. An Important Question 15S Presented Concerning Enforce- Journal Entry and Opinion ment of the Rule Established of the Court of Appeals, in Miranda v. Arizona That Eighth Appellate District, Where an Individual Indicates Cuyahoga County, Ohio, That he Wants an Attorney, the Affirming Petitioner's Interrogation Must Cease Until CORVECECAGRE) ccadicdivewxiscinsn aa the Attorney is Present........ 57 Excerpts from Application XI. An Important Question is for Rehearing to the Ohio Presented as to Whether Peti- Court of Appeals, Eighth tioner's Sixth and Fourteenth Appellate District........... A37 Amendment Rights Were Violated by the Admission of Testimony Order of the Court of Appeals, Concerning the In-court and Eighth Appellate District, Pretrial, Post-indictment Cuyahoga County, Ohio, Identifications of the Peti- Overruling Petitioner's tioner When the Pretrial Motion for Reconsideration... A46 Identification Occurred in the Absence of Petitioner's Excerpt from Petitioner's ASCORMEVS.cccccsscccsescscsesesese 59 Memorandum in Support of Jurisdiction, filed in Comoluslamicccecccsvenssesveceseee Gi the Ohio Supreme Court....... A47 TABLE OF CONTENTS (Cont. ) Assignment of Errors to the Ohio Court of Appeals, Eighth Appellate District.... A5l Judgment and Sentence in the Court of Common Pleas, Cuyahoga County, Onio........ A53 Pretrial Rulings in the Court of Common Pleas, Cuyahoga County, Ohio........ A55 Excerpts from Official Transcript of Proceedings in the Common Pleas Court, Cuyahoga County, Ohio - Rulings on Pretrial Motions.. A57 Excerpts from Official Transcript of Proceedings In the Common Pleas Court, Cuyahoga County, Ohio - Trial Testimony of Detective Ferris Concerning Oral Statement of 11/28/75........ A63 Affidavit for Search Warrant of Apartment 11/22/75..... eee yk Constitution of the United States, Fourth Amendment..... A76 Constitution of the United States, Fifth Amendment...... A76 Constitution of the United States, Sixth Amendment...... A76 = et TABLE OF CONTENTS (Cont. ) Constitution of the United States, Fourteenth PRR. 2 Ck Kae EaS 6 CReR ete Section 2905.01, Ohio Revised Code..... ey re re ae Section 2907.02, Ohio ROVises Coes. s 605. cdi enews Section 2903.01, Ohio ROViSCG COGRs <6 625s chek eee Section 2945.59, Ohio ROViSOG COGBRs bic i ck vee dm ce 460m - vii - TABLE OF AUTHORITIES Cases Aguilar v. Texas, 378 U.S. 108 (CL9IGE) ow 06 6 5-0:8.0.0:8 cies se ace ora Amos v. United States, 225 Geode SAS Cee ae AS 41 Gens i ipaaus Beck v. Ohio, 379 U.S. 89 $l ¢ | Pee Serre Ce ee Brewer v. Williams, U.S. » FF SeGts. Sasa ASST i s.e%s Brown v. Illinois, 422 U.S. S90 CLS Fos pic cs hav ii ee ee bees hes Bumper v. North Carolina, 391 U.S. 543 (1968) ..ccceceeees Cardwell v. Lewis, 417 UO. cs BES CLEVE) «6 wee ee eee ee es Carroll v. United States, IGT UcOc Lae -Laeaet kaweneascuan Chambers v. Maroney, 399 U.S. 42 (1970)... ceeeccees Chimel v. California, 395 ee Pa LY Be kp RR reer C Coolidge v. New Hampshire, 403 U.S. €33 (LOTL) wcccccvcccee Dyke v. Taylor Implement Mfg. Co., Inc., 391 U.8s Sh0 CAPOEl 6a 00 € 608% ke Escobedo v. Illinois, 378 U.S. 478 (1964) ......--eees - viii - 56 33,34 29,40 37,38,39 37,38 37,38 37 36,37,39 38 53 TABLE OF AUTHORITIES (CONT.) Estes v. Texas, 381 U.S. BEA TEPER WAL Sed we bees oe kes Franks v. Delaware, a , 98 TR in BOTS TRO PO Ws 46s 5b e048 coe beaee Gilbert v. California, FEU Di BOS (APO) Sead bina w ene Irvin v. Dowd, 366 U.S. PP SE OORT Cb bea cee Ka Se we ee Johnson v. United States, kk SF SP | 5 ee Judd v. United States, 190 F. 2d 649 (D.C. Cate REG os 6 kc bes dee eek ae Lockett v. Ohio, U.S. » 26 S.Ce. 2954 (1976) os 6.x Manson v. Bradwaithe, SOG WeOs. SE CaPee) oks obee wok ce Massiah v. United States, 275 U.S. 201 (1964) McLeod v. Ohio, 1 Ohio St. Oe SES Poca 6. oe gue ee ee Michigan v. Mosley, 423 U.S. 96 (1975) Miranda v. Arizona, 384 U.S. 436 (1966) - ix - 46,47 60 24 30 40 61 56 56 58 7,51, 53,57,58 _ TABLE OF AUTHORITIES (CONT.) Moore v. Illinois, 0. Ss ~ Be 8.CE. €596- (i976) 2.50% Murphy v. Florida, 421 U.S. 794 (1975)... ccc cere cccccccces Pennekamp v. Florida, 328 U.S. 331 (i950) cas eoeeeeve eevee Preston v. United States, bi GS Oe! Bk tae Rideau v. Louisiana, 373 U.S. 723 (1963) ..cccececesecee Schneckloth v. Bustamonte, 412 U.S. 218 (1973) ..ceceeees Sheppard v. Maxwell, 384 Biek BAe. VESRED cv cewxek aa esnes : Spinelli v. United States, 393 U.S. 410 (1969) ....cceeeee Texas v. White, 423 U.S. G7 (1975) cccccscccvcccccsccces United States v. Chadwick, 433 U.S. L CUiST7 ) oe cccwcccccces United States v. Fuothman, 492 F. 2d 1260 (9th Cir. 1973) .ccceccccccccccceces United States v. Wade, 388 U.S. 218 (1967) ..ccwcensecsees 25 25 37,38 23 29,51 23,24 43 37,38 39 40 61 TABLE OF AUTHORITIES (CONT. ) United States v. Watson, 423 U.S. 411 (1976) Wong Sun v. United States, Fourth Amendment Fifth Amendment Sixth Amendment 371 U.S. 471 (1963) Constitutional Provisions Statutory Provisions Ohio Revised Code, Section 2903.01 > P'S 2S 2. OS. 66-8 & eo 6s United States Code, Section 1257 (3) - xi - 33 3,4,5, ee ee 26,30,35, 39,47, 6,7, 12,13 &.t.22; 13,52,53, 59,60 2,3,4, 4,5,6,7,- 123513, 26. 30,35,47, 52,53,59, 60,61 IN THE SUPREME COURT OF THE UNITED STATES October Term, 1978 Case No. JOHN JOHNSON, Petitioner, Vv. STATE OF OHIO, Respondent. PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF THE STATE OF OHIO Petitioner prays that a writ of certiorari issue to review the judgment of the Supreme Court of the State of Ohio dismissing petitioner's appeal for want of substantial constitutional question. The dismissal of petitioner's appeal by the Ohio Supreme Court thereby affirmed the judgment of the Ohio Court of Appeals - Eighth District, which had affirmed petitioner's convictions of aggravated murder, kidnapping and rape. OPINIONS BELOW The judgments of the Ohio Supreme Court dismissing petitioner's appeal and denying rehearing are unreported and are set forth, respectively, in the rately bound Appendix at A3, A2. The 98. en Fie opinion of the Ohio Court of Appeals - Eighth District, 1S un~ reported and is set forth in the Appendix at 44-36. The journal entry of the Court of Common Pleas, Cuyahoga County, Ohio, the trial court in this case, is set forth in the Appendix at A53-54. JURISDICTION The judgment of the Ohio Supreme Court dismissing petitioner's appeal as of right was issued on November 9, 1978, Appendix at A3. Petitioner's motion for rehearing was denied by the Ohio Supreme Court on December 4, 1978, Appendix at A2. On February 15, 1979, Mr. Justice Stewart, upon application by petitioner, granted an order extending the time within which to file a petition for a writ of certiorari to and including April 14, 1979, Appendix at Al. This petition seeks review of a final judgment rendered by the Ohio Supreme Court, the highest court in the State of Ohio in which a decision could be had. This Court has jurisdiction pursuant to 28 U.S.C. §1257(3) because rights, privileges and immunities under the Constitution of the United States are claimed to have been violated. QUESTIONS PRESENTED FOR REVIEW ie In a state criminal trial, is a trial court required by the Due Process Clause of the Fourteenth Amendment to grant a change of venue or a continuance where the reasonable likelihood that prejudicial pretrial publicity will prevent a fair trial is demonstrated: (1) by voir dire examination of jurors in which a substantial number of pro- spective jurors admit bias or are shown to be biased and (2) by affirmative proof of the prejudicial publicity, much of which has been induced by law enforce- ment officials and which has included attacks on the defendant's character, inaccurate and totally untrue information, evidence never offered at trial and facts which would have been inadmissible at trial? ea Is a warrantless search of a locked automobile which is parked in front of the home of the owner justified on the. basis of the owner's consent where the search is conducted late at night, by a group of armed, uniformed police who state they are on official business, who fail to advise the owner, roused from sleep, that he may demand a search warrant and the owner simply does not resist the directives of the police? Or, is a search and seizure under these circumstances violative of the Fourth and Fourteenth Amendments? Iit. If at the time of a warrantless arrest of an accused, the only facts which were available to the arresting officers concerning the accused connected the automobile belonging to the accused to an alleged criminal incident separate from that for which the accused was arrested, but the facts also indicated that someone other than the accused was involved in the separate incident, is there probable cause for an arrest for any crime and, if not, were statements and any other evidence obtained as a direct result of continuous interroga- tions from the time of arrest acquired in violation of the Fourth and Fourteenth Amendment rights of the accused? IV. Is the warrantless seizure of an arrestee's automobile which is parked a quarter of a mile from the location of the arrest, on private property, in the lawful custody of another, an uncon- stitutional seizure and are warrantless searches and seizures of the contents of the seized car, conducted approxi- mately seven and fourteen hours after the initial seizure of the car, also violative of the Fourth and Fourteenth Amendments? V. Where an affidavit in support of a search warrant, drafted with the assis- tance of a lawyer, contains conclusory statements which are essential to any attempted showing of probable cause and which are attributed to a named inform- ant, but the affidavit fails to set forth any facts concerning the under- lying circumstances from which the informant reached his conclusion and there are no facts in the affidavit to show that the informant was credible cr his information reliable and, further, facts are set forth which have no seeming connection to the establishment of probable cause and no facts to explain their connection are supplied, does the affidavit fail to set forth sufficient facts to enable a magistrate to find probable cause, and is a search of a residence pursuant to a warrant, viola- tive of the Fourth and Fourteenth Amendment rights of the occupants? vi. Should a search warrant have been voided because false statements had been included in a warrant affidavit with reckless disregard for the truth where the affiant testified at an evidentiary hearing that, at the time he drafted the affidavit with the aid of a county prose- cutor and included an informant's state- ment concerning an attempted abduction which was essential to establish probable cause, the affiant knew that the location of the attempted abduction was one to one and one-half miles from where the murder victim had disappeared and that the attempted abduction had occurred at least one-half hour before the murder victim's disappearance, but the affidavit as drafted claimed that the abduction occurred "at or near the area" and "at or near the time" of the murder victim's disappearance so that it appeared on the face of the’ affidavit that the murder victim was the victim in the attempted abduction? Vil. Where after a defendant is subjected to lengthy, continuous, night-time, custodial interrogation, statements are obtained from the defendant and the question of whether the defendant was adequately advised of his rights is hotly disputed in the record, has the State failed to satisfy its burden of proving a voluntary, knowing and intel- ligent waiver of defendant's rights under the Fifth and Fourteenth Amend- ment? VIII. Was a defendant denied his rights to counsel and due process of law in violation of the Sixth and Fourteenth Amendments where defendant was arrested and subjected to lengthy, continuous, custodial interrogation and the inter- rogating officers took affirmative steps to persuade defendant's wife, who had appeared at the police station, not to get an attorney for defendant by advising the wife that there was no reason to secure an attorney, that she would be advised when an attorney was needed and that defendant would be released as soon as he made a statement when the officers knew that defendant was a suspect and was being interrogated as such? IX. Where, in a post-indictment inter- rogation, a defendant clearly states to the interrogating officer that he will make no statements without his attorney present, the defendant has clearly invoked his Sixth Amendment right to assistance of counsel and an oral state- ment obtained immediately following the expressed desire for the assistance of counsel, was the statement obtained in violation of defendant's Sixth and Four- teenth Amendment rights? ana Where, in a post-indictment inter- rogation, a defendant states unequivo- cally that he will not make any statement without his attorney present, the inter- rogation must immediately cease and where a statement is obtained after the request for the presence of an attorney, the statement must be suppressed under the rule established in Miranda v. Arizona, 384 U.S. 436 (1966). XI. Are adefendant's rights to assistance of counsel and due process of law violated by the admission at trial of a witness's testimony concerning pre- trial, post-indictment identification of the defendant which was conducted in the absence of defendant's court-appointed counsel, and by testimony concerning an in-court identification where no showing was made that the in-court identification was based on observations other than at the pre-trial, post-indictment identi- fication and where prior to viewing the defendant at the pre-trial showup, the witness, a twelve-year-old child, was told by police, among other things, that the defendant had already been picked out by other children? CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The text of the Fourth, Fifth and Sixth Amendments and the pertinent portion of the Fourteenth Amendment to the United States Constitution are set forth in the Appendix at A76-77. The text of Ohio Revised Code §§2905.01, 2907.02, 2903.01 and 2945.59 are set forth in the Appendix at A78-82. Ee STATEMENT OF THE CASE Petitioner John Johnson was con- victed on March 6, 1976, of the kid- napping, rape and aggravated murder of Melissa Hinke by a jury in the Common Pleas Court of Cuyahoga County, Ohio. The trial -court imposed consecutive sentences of seven (7) to twenty-five (25) years for the counts of kidnapping and rape, and for the count of aggra- vated murder, the court imposed a sentence of death. The judgment and sentence of the trial court were affirmed by the Ohio Court of Appeals - Eighth District. While petitioner's appeal to the Ohio Supreme Court was pending, the Ohio Supreme Court modified the sentence of death to life imprisonment, in response to rulings by this Court that the Ohio statutory regime for imposing i/ capital punishment was unconstitutional7 The Ohio Supreme Court subsequently dismissed petitioner Johnson's appeal for want of substantial constitutional question. On Thursday, November 20, 1975, Melissa Hinke, eight years old, left her home on West 67th Street in Cleveland, Ohio, to buy a half-gallon 2/ of milk at a nearby store (41.1831-1832)—— FA Lockett v. Ohio, v.83. , 98 S.Ct. 2954 (1978). ef 4 All references to the transcript of the proceedings in the trial court will be referred to by the volume number, the letter "T" and page number(s) in the transcript. She left her home at approximately 3:10 p.m. (4T.1836) with two quart-size Pepsi Cola bottles, and some change with which to purchase the milk (4T.1832, 1842), and never returned (4T.1841). Two days later, on Saturday morning, November 22, her body was found in a wooded area (4T.1993) of the Metropolitan Park System's Rocky River Reservation (4T. 1989). Soon after the victim's disappearance, the news media devoted extensive coverage to the search for the missing girl and each succeeding event.3/ The very day the body was found, Cleveland newspapers began to focus upon the grisly and brutal aspects of the crime and the investiga- tion which supposedly connected Johnson to the crime (MA2, B3, 4). Front page and lead story coverage continued through- out the investigation. By the time of Johnson's arraignment on November 28, 1975, the community was flooded with details of the "evidence" of Johnson's "guilt", much of which was inaccurate, inadmissible and never offered at trial (e.g., MA4, 5, 7, Cl, Bly DiF—-18). John Johnson was in police custody when Melissa Hinke's body was found (2T.1106). Police had arrested Johnson, without a warrant, at about 7:00 p.m. of the prior evening (3T.1243, 1337), and various teams of police had 3/ ~ All references to media coverage will be to Petitioner's Venue Motion Exhibits filed with the trial court and will be referred to by the letter "M" followed by the letter and number identifying the exhibit. interrogated him almost continuously (2T.1103, 3T.1253, 1287, 1348-1349), without the presence of an attorney, until shortly after the victim's body was found. During this overnight period of interrogation, police obtained oral and written statements from Johnson. . Even before discovery of the body, police had conducted three warrantless searches of Johnson's automobile (2T. 993-994, 3T.1294-1310). The first search (for which the sole justification urged by the State was consent (2T.963- 964)) was conducted by four uniformed police, shortly after midnight on November 21, 1975, in front of the petitioner's apartment (2T.980, 1035, 3T.1336). The other two warrantless searches were conducted by detectives while Johnson was in custody and after Johnson's car had been seized without a warrant (3T.1251), at a gas station about a quarter of a mile from where Johnson had been arrested (3T.1263). After discovery of the body, Johnson's home was searched under color of a search warrant (2T.1142). During this same period, in connection with the Hinke investigation, police interviewed as possible identification witnesses children and adults who had been con- fronted or approached by male drivers of automobiles. Johnson was indicted on November 25 and arraigned on November 28, 1975. Upon a showing of indigency, the court appointed defense counsel to represent him. Immediately after his arraignment, Johnson was taken by detectives from the courtroom to a room in the police - 10 - station (2T.1086) where, without an attorney present (2T.1097), while surrounded by police and detectives and dressed in prison clothes (2T.863), he was viewed by identification witnesses (2T.1092-1093) and further interrogated . (2T.1095-1096). A highly incriminating oral statement was obtained from Johnson during this interrogation. At trial, the State offered into evidence a semen-stained towel (SX12) and a blue sweatshirt spotted with blood (SX9-H) which had been seized during the warrantless searches of the petitioner's car. Also received in evidence was a penknife with specks of blood on it (SXl1). The penknife had been seized while Johnson was in custody, following the warrantless seizure of Johnson's automobile. From the search of Johnson's home, the State offered a pair of under- shorts (SX8-K) and a washrag (SX25-E) which were stained with blood. Extensive testimony was elicited concerning the seizure and testing of these items (3T. 1628-1638, 1653-1656, 1659-1675, 1687- 1689, 1692-1695, 4T.2230-2243, 2252-2253, 2257-2261). Some of the testimony established that the blood on the under- shorts was not the petitioner's blood- type, but matched the victim's blood- type. Four detectives testified at trial about the statements obtained from John Johnson during custodial interrogations on November 22 and 28, 1975. The jury also heard "prior acts" testimony (Revised Code §2945.59, Appendix at 82) by three young girls concerning alleged attempts by a man, who the State urged was Johnson, to entice the girls into - ll - his car. Included in the "prior acts" evidence was the testimony of twelve- year-old Lisa Chambers concerning her police station show-up identification of Johnson on November 28, 1975, immedi- ately following his arraignment, without the presence of his court-appointed attorneys. Lisa Chambers also made an in-court identification of the petitioner as the man who talked to her. Despite clear evidence ,#hown by the defense in motion exhibits as well as in the voir dire of prospective jurors of the prejudicial effect of the massive barrage of pretrial publicity, a pre- trial motion by the defense for change of venue and/or continuance was over- ruled (Appendix at A56, 2T.783-784). The motion for change of venue and/or. continuance was renewed later at trial and again was overruled (5T.2466, 2470). Pretrial motions to suppress the evidence obtained from the searches and seizures detailed above because of the violation of petitioner's Fourth and Fourteenth Amendment rights were over- ruled by the trial court (Appendix at A55, A57-58). Similarly, motions to suppress the custodial interrogation statements of the petitioner because they were obtained in violation of petitioner's Fourth, Fifth, Sixth and Fourteenth Amendment rights were overruled by the 4/ ~ Prior to voir dire, stipulations were entered into the record concerning the circulation of the newspapers and the accuracy of copies of newspaper articles and television scripts submitted by the defense. trial court (Appendix at A55, A58-61), as waS a motion to suppress the identifi- / cation testimony of Lisa Chambers concerning a "prior act" (Appendix at A55-62). All of the subjects of the pretrial motions were asserted in the assignments of error lodged with the Ohio Court of Appeals - Eighth District (Appendix at A51-52). After the court of appeals in its opinion of Janaury 30, 1978, affirmed petitioner's convictions (Appendix at A4-36), petitioner timely applied for re- hearing and urged that the issues raised under the United States Constitution required reversal and that the court of appeals should consider issues which it failed to address in its opinion, in- cluding the constitutional validity of identification testimony of Lisa Chambers (Appendix at A37-45). However, rehearing was denied by the court of appeals with- Out elaboration (Appendix at A46). Petitioner next turned to the Ohio Supreme Court and again raised the same Fourth, Fifth, Sixth and Fourteenth Amendment claims in the Propositions of Law submitted in his brief in support of appeal as had been raised before trial court and the court of appeals (Appendix at A47-50). However, the Ohio Supreme Court, without opinion, dis- missed petitioner's appeal for want of substantial constitutional question (Appendix at A3) and, subsequently, denied petitioner's application for rehearing (Appendix at A2). f REASONS FOR GRANTING THE WRIT guilt of the sensational kidnapping- ; ‘rape-murder. Deputy Coroner Lester I. Adelson was quoted by the media as saying that the killing was "one of the AN IMPORTANT QUESTION IS PRESENTED most disturbing cases I've handled" in AS TO WHETHER A CHANGE OF VENUE OR 25 years_as coroner (M. A3, A7, B19, CONTINUANCE IS REQUIRED WHERE THE Dl, F4)*2/ The media frequently referred REASONABLE LIKELIHOOD THAT PREJUDI- . to the fear and anger of the residents CIAL PRETRIAL PUBLICITY WILL PREVENT in the community. For example, a A_FAIR TRIAL HAS BEEN SHOWN BY THE television film report included the VOIR DIRE EXAMINATION OF THE JURORS following exchange from a resident: AND BY AFFIRMATIVE PROOF OF PREJUDI- "Tt is awful, it is terrible, a young CIAL PUBLICITY, MUCH OF WHICH HAS girl like that...Someone should do the BEEN INDUCED BY LAW ENFORCEMENT same thing to him." (1T.630-631. See OFFICIALS AND WHICH LNCLUDES ATTACKS also M. A3, Al4-15, C103, D18-19, Ell- ON THE DEFENDANT'S CHARACTER, IN- 12, 19-20, F115). ACCURATE AND TOTALLY UNTRUE INFOR- MATION, EVIDENCE NEVER OFFERED AT Both Cleveland newspapers carried TRIAL AND FACTS WHICH WOULD HAVE the case as a headline or front-page BEEN INADMISSIBLE AT TRIAL. story fcr a full week following the disappearance of Melissa Hinke (M. Al- The crime with which John Johnson 4, A7, Al2, Bl-5, B7, B9). Cleveland's was charged was one of the most sensa- three television stations devoted large tional and horrifying in the experience segments of air time to the details of of Cuyahoga County, Ohio. During the the crime. Every news show for a com- three-month period between the victim's plete week, often as the lead story (M. death and Johnson's trial, the community 'D7, D9, Dll, E8, E16, E19, E22, E27, in which he stood trial for his life F3, F6, F9), carried news of the crime was saturated with pretrial publicity and the police investigation focused of the most prejudicial, hostile and in- upon John Johnson. Film reports in- criminating kind. All of the newspapers cluded scenes of Johnson's appearances and television stations in Cuyahoga in court, surrounded by police and County transmitted in lurid and volu- sheriff's deputies (M. D13-15, D2l, E4- minous detail daily news accounts of 53: Melissa Hinke's death, the fears and outrage of her neighbors, the police investigation of John Johnson, the chain 5/7 of incriminating evidence against him, ~All references to the Petitioner's his partial confession of guilt, details Venue Motion Exhibits will herein- of his character defects, sexual per- after be referred to as "M" followed versions and prior crimes of a violent by the letter and number(s) identi- or sexual nature, as well as prior fying the exhbit. unrelated violent crimes of members of his family, the opinions of police and public figures, prior to trial, of his » 24 «= » 15 .° Newspaper articles and television reports wove bits of information with rumors and innuendoes to connect Johnson with the crime. On November 24, 1975, the date of the petitioner's preliminary hearing, all three television stations broadcast details of the status of the case. WJW-TV, Channel 8, began its 6:00 p.m. news show by announcing that "police believe they have their man in the brutal murder...." (M. F6). The news report speculated that "whoever abducted the girl probably had cruised this area before." This observation was followed immediately by the comment that the petitioner worked at a neighbor- hood gas station and was arrested after his license number matched an earlier report of an attempt to lure a little girl into a car. The announcer commented that the petitioner was "isolated" in jail "for his own protection." WEWS~-TV, Channel 5, reported that the petitioner was charged with murder, kidnapping and rape, and then stated, "police [are] accusing him of luring Melissa into his car, attacking her, and then stabbing and strangling her to death" (M. E17). In a later WEWS newscast, as the lead story, a picture of ‘the petitioner was displayed on the screen and the announcer stated, "police are saying this man 1s the one who kidnapped her, raped her, and then killed her. This is John Albert Johnson...." (M. E19). WKYC-TV, Channel 3, featured a film report of Johnson “as he was being led into the courtoom...." (M. D13-14). The news report stated that the petitioner was ordered held on $750,000 bond and that "then, a curious thing happened. Judge Matia told Johnson, 'May God have mercy On your soul.'" (M. D14). The newscaster noted that the "comment is usually reserved for cases in which a death sentence has been pronounced...." Channel 3 also reported that Johnson was traced through his license number (M. D15), much like the report on Channel 8. All three of the television stations reported that Johnson's brother was currently in prison for killing a woman (M. D17-18, E17, F6). The Cleveland Plain Dealer also reported this "fact" iM. AS). The Plain Dealer reported on November 24, 1975, that Johnson became a suspect after he was stopped on the day of the murder "as a suspicious character" (totally unsupported by testi- mony in the record) and was in "isola- tion...to protect him from other inmates." (M. A3). On the same date, the Cleveland Press as a front-page story reported that police indicated that petitioner "tried to lure another girl into his car earlier that day." (M. B5). A later edition of the Press, in a front- page story, carried a picture of Johnson and described his appearance in Municipal Court. The article repeated the state- ment that he was arrested "when police got his license number after he tried to lure another girl into his car" (M. B7). Also included were statements that police "declared they have sufficient evidence to bring [the petitioner ] to trial...," that "the suspect allegedly had traces of blood...on his clothing and under his fingernails." The article further detailed the coroner's report that the victim "had been stabbed repeatedly in the face, neck, chest and abdomen. Her face had been battered “a > ee instrument," and that she es ag adh gga ne Ne and sexually molested. Another article in the Press that day reported that the police had said Johnson had "a violent temper when drinking" (M. B15). November 25th, the Plain Dealer akiianen a large front-page photograph of the petitioner as he left Municipal Court. The accompanying article ee rs peated the claim of the attempted abduc tion of another girl and apnea ee through license plates. It also state : that police searched Johnson Ss agpiary and car and "among the items they saic they found were a pair of cerns rn sae gre undershorts in the apartment, blood an a semen-stained towel in the car. The article also claimed that a lie detector test was given to the petitioner and he "told police he had been in a Lorain : Ave. adult book store earlier Thursday. It further reported that "police said he [Johnson] had magazines portraying nude children in his possession" (M. ye The assertion concerning the ae ession of magazines portraying nu sag en was totally false. There was absolutely no testimony in the record to substantiate such a statement. Nevertheless, this statement was re- peated by much of the media (M. Al8, Cl, C2, El). In fact, Channel 5 con- cluded a November 25th report on the case with the remark that police said the petitioner tried to pick up another child, that police "found pictures of nude children in his home and blood- stained underwear" (M. El, emphasis added). A Cleveland Press article on November 25th carried a headline of "Police seek swift indictment of sus- pect...." After describing the slain girl in her casket, the article dis- closed in bold-face type, that "blood- stained undershorts were found in a trash can at [the petitioner's ] home," that there was "blood under his finger- nails and...a stained towel was found in the auto." It noted that Johnson "explained that the blood was the result of a fight he got into...," that police "placed" the petitioner "in an adult bookstore about two hours before Melissa was kidnapped" and that the petitioner "claimed he had 'popped a pill' that afternoon." (M. B16). The Plain Dealer, ina front-page story on November 26th, referred to comments by Art Modell, grand jury fore- man and Cleveland Browns owner, concern- ing how disturbing the coroner's testi- mony in the grand jury had been. The article then proceeded to itemize all the "evidence" gathered to prove the guilt of the petitioner (mM, avs... fe reported that a police search of Johnson's home "uncovered a blood-soaked penknife...bloody undershorts, work shirt and pants and three wet rags." The article next shifted to the gruesome nature of the slaying: "a piece of blue cloth...knotted so tightly around Melissa's neck that the imprint of a button...was left in the skin." Then shifting back to the police investiga- tion: "Found in Johnson's car, police Said, were two empty soft drink bottles, a semen-stained towel, a piece of bloody fingernail, strands of brownish-blond hair and a quart of Lawson Milk Co. milk." - 19 - report remarked, "Melissa had been pase = a Lawson store...." The article stated that "bits of shrubbery" were . found in the car, implying that Johnson's car was at the scene of the crime. The article next focused on the petitioner, "in an isolation cell...to protect him from other prisoners...." The paper claimed Johnson had said "I don't remember doing it, if I did it," and that he had "celebrated his birthday the day of the murder, "by visiting several taverns." Also mentioned was that the appellant "was fined $100.00 in Cleveland Municipal Court for pander- ing obscenities..." a year earlier. — Finally, the article noted that public "Sentiment has been growing for Melissa s family," and followed with details of the funeral of the victim. : The article was highly inaccurate, inflammatory and prejudicial. Nowhere in the record is there a shred of testi- mony concerning a "bloodsoaked" penknife (see 3T.1660-1661, 47.2240, 2291), or soft drink bottles somehow connected to Melissa Hinke (4T.1882, 5T. 2370-2371, . 2385-2386), or a “bloody fingernail" (3T.1601, 4T.2221-2224, 2263), or strands of hair belonging to Melissa Hinke (3T.1628-1629, 1643). The alleged statement by Johnson, tantamount to a confession, potentially the most damaging single piece of publicity, is not sub- stantiated anywhere in the record. Cleveland television stations covered the Hinke funeral extensively. Juxtaposed with the funeral service publicity were stories of petitioner's arraignment. Channel 3 reported that Johnson was “brought to and from court under heavy guard" and that he “has been - 20 - kept in a-cell by himself because jail officials fear other inmates could try to harm him." The film report also noted that "because the case has stirred such emotion and received heavy news coverage...it is almost certain the trial will be held outside of Cuyahoga County" (M. D20-21). The Plain Dealer focused further attention on the case by devoting a full page to the case in section one of the Sunday, December 7, 1975, edition. A headline asked the question, "Did porn shops incite killing?" (M. Al5). Below the headline, the caption on a photograph of an adult bookstore read: "A typical Lorain Avenue smut shop...Police Capt. Jerome Poelking, chief of detectives, says police information is that John A. Johnson, who has been charged with the rape murder of 8-year-old Melissa Hinke, was in a Lorain Avenue porno store...the morning of Melissa's disappearance. A homicide detective said Johnson had looked at pictures of nude children while in the store." (Emphasis added). On the remainder of the page were letters to the editor, the texts of which were based on the details of the crime which had been publicized by the media. For example, "Johnson reportedly told police he had been in a[n]...adult bookstore...the day of the murder. Police also said he had in his possession magazines portraying nude children." o 2) Intermittent television and news- paper coverage of the case continued until the time of the jury selection (e.g., M. Al6-18, Bl1-14, C2-3, E9-12, E29, F18-20). On the very first day of jury selection, February 23, 1976, Channel 5 began the first of a series of documen- tary reports on the subject of child molesting (1T. 350). The first program featured an interview with the victim's mother (1T.351) and contained damaging remarks about Johnson, including that Johnson had committed other crimes of a sexual nature (1T.351), that he had been under surveillance (1T.351), and that he attempted to abduct another girl for sexual purposes (1T.352). Adver- tisements announcing the start of the series appeared in the Plain Dealer and the Press on February 23, 1976 (1T.351). The effects of this barrage of publicity were apparent at the voir dire of the jury. Of the forty-two talismen who were questioned in regard to pretrial publicity, eleven persons volunteered, unequivocally, that they could not be impartial as jurors because of bias formed from exposure to such publicity. All but one of the special jury panel admitted exposure to the pre- trial publicity and that they had read Or seen news reports about the case. Even after a court admonition against reading any newspapers or monitoring radio or television news programs, almost one-third of the panel admitted further exposure, either deliberate or inadvertent, to news media stories about the trial. In total, almost 40 percent of the entire panel of prospective - 22 - jurors questioned were dismissed on the basis of some taint as to their inabi- lity to try the accused impartially. In their effort to empanel a fair jury, defense counsel exhausted all of their peremptory challenges. During the course of the trial and hearings on pretrial motions, the court- room was filled with spectaiurs. In order to obtain seating, prospective spectators were searched for weapons by sheriff's deputies stationed outside the courtroom doors. Because of crowded conditions in the courtroom, a table was provided for the press inside the rail separating the trial working area from the spectator section (5T.2467). During the voir dire, anews reporter copied, and used in a highly prejudicial news story (1T.354-355, and see M. Al8), a confidential psychiatric report on the sanity of the accused which he took without authorization from the private desk area of the judge's bench. Ultimately, because of the un- relenting barrage of publicity, the trial court sequestered the jury. But the damage had been done. Although trial courts have initial discretion to determine whether a change of venue or continuance should be granted in a criminal case, such dis- cretion is limited by constitutional imperative, “where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial...." (Emphasis supplied). Sheppard v. Maxwell, 384 U.S. 333, 362-363 (1966); accord, Estes v. Texas, 381 U.S. 532 (1965); Rideau v. Louisiana, 373 U.S. 723 (1963); = 23 « Irvin v. Dowd, 366 U.S. 717 (1961). Under such circumstances, grant of change of venue or continuance is constitution- ally compelled. Sheppard v. Maxwell, supra. Here, the invidious effect of pretrial publicity was shown both by lodging copies of the newspaper articles and television scripts with the court, and by voir dire examination of the prospective jurors. Furthermore, the record can fairly be read as revealing a trial judge more concerned with orchestrating a voir dire designed to gloss over the problem of pretrial publicity than he was with probing deeply so that the effect of the publicity could accurately be gauged. For example, the trial judge posed leading questions to potential jurors designed to elicit statements of their ability to be impartial (See 1T.42-44, 47-50, 62). When defense counsel asked the court to excuse two jurors who had evidenced bias due to the massive publi- city, the trial judge accused defense counsel of posing questions designed to confuse the jurors (1T.291-297). The court then posed additional leading questions to those jurors designed to cause them to recant their previous testimony (1T.297-303). "To deny that bludgeoning or poisonous comment has power to influence or at least to disturb the task of judging is to play make believe and to assume that men in gowns are angels. The psychological aspects of this problem become particularly pertinent in the case of elected judges with - 24 - zig short tenure.” Pennekamp v. Florida, 328 U.S. 331, 359 (1956) (concurring opinion). In overruling this assignment of error, the court of appeals relied principally upon Murphy v. Florida, 421 U.S. 794 (1975). However, the facts presented in Murphy are easily distin- guishable from those presented here. The Court in Murphy emphasized that most of the jurors had only a vague recollec- tion of any publicity concerning the accused and many jurors considered the publicity irrelevant, 421 U.S. at 800- 801. This is in sharp contrast to the profound effect the publicity had upon prospective jurors in this case. Furthermore, the Murphy court stated that it is necessary to "distinguish between mere familiarity with [the accused] or his past [as in Murphy] and an actuai predisposition against him, just as we have in the past distinguished largely factual publicity from that which is invidious or inflammatory." 421 U.S. at 800, n. 4 (see, also, 421 U.S. at 802). In the instant case, thirteen prospective jurors demonstrated a clear bias toward Johnson as a result of publicity directed to this case. Moreover, this case presents vivid evidence of publicity which was invi- dious and inflammatory. The publicity surrounding this trial focused on and pointed a guilty finger at the petitioner; it included vicious attacks upon his character; it included inaccurate and totally untrue information; it reported evidence that was never offered at trial; it reported evidence that would have been inadmis- sible had it been offered at trial, much of it was induced by law enforce- ment officials; all of it was untempered by cross-examination. This case pre- sents a ripe opportunity for the Court to reaffirm and clarify a trial court's duty to effect adequate prophylactic measures against prejudicial pretrial publicity in order to assure an accused a fair trial before an impartial jury.. Petitioner respectfully urges the Court to grant certiorari and reverse his conviction. Il. AN IMPORTANT QUESTION IS PRESENTED AS TO WHETHER PETITIONER'S FOURTH AND FOURTEENTH AMENDMENT RIGHTS WERE VIOLATED BY THE INTRODUCTION AT TRIAL OF EVIDENCE SEIZED DURING A_WARRANTLESS MIDNIGHT SEARCH OF PETITIONER'S AUTOMOBILE WHERE THE RECORD SHOWS MERE ACQUIESCENCE TO AUTHORITY RATHER THAN CONSENT. Shortly after midnight (2T.980, 1035, 3T.1336), on November 21, 1975, police officers Hanton, Charvat, McGuire and Wayne (2T.972) approached John Johnson's apartment at 2006 West Boule- vard in Cleveland and knocked on the door (2T.696). They were investigating the Melissa Hinke case (T.979, 1031) and had been requested to check out Johnson's auto in regard to that case (2T.967). All four of the police gathered in the hallway outside of John Johnson's apartment door (2T.983). Charvat knocked on the door for a period estimated to be less than one minute (2T.983). Johnson had been in bed for approximately - 26 - sa one hour (3T.1333). Prior to that time, he had not slept for thirty hours (3T. 1334). He got out of bed and answered the door (3T.1334); he was dressed in a T-shirt and undershorts (2T.983), and appeared to have been sleeping (2T. 984). When Johnson, a short man of small, thin build (3T.1411), opened the door to his apartment, four armed, uniformed policemen were standing there (2T. 985, 3T.1334). Their uniforms, badges and guns were plainly visible (2T.981l- 982, 1036, 3T.1334). One of the police officers was very tall and two others were of medium build. An older man, wearing glasses, appeared to be in charge (3T.1410). Either Charvat or Hanton (2T.1038, 970) announced that they were on official business (2T.1038); they wanted to talk to him (2T.970). After Johnson got dressed, he was told that they all had to go outside to his car (2T.989, 1039-1040, 3T.1335, 1377). On the way to the car Officer Hanton made it plain to Johnson that he wanted to look in the interior of the car (2T.992, 3T.1378). Sometime before reaching the car, one of the policemen told Johnson to open the trunk of his car (2T.1040). All the police walked to the car with appellant, grouped all around him (2T.1040), some in front, some alongside and behind him (2T.993). They remained in close proximity to Johnson through- out the search (2T.1040, 1042). Hanton and McGuire claimed that the police asked the appellant to open the car (2T.994, 1041). Johnson testified that - 27 - he was told to open the car door (3T. 1335, see also 1384); the police instructed him what to do (3T.1378), and he complied (3T.1335, 1337, 1410). On intense cross-examination, Johnson maintained consistently that he did not give permission but was instructed and simply did not resist (3T.1378, 1383, 1387). He testified that “you don't go around telling a law officer you are not going to do this" (3T.1415). Johnson was never advised that he could refuse the search and demand a warrant (2T.997-998, 1039, 3T. 1336-1337). Once the doors were opened, Hanton and McGuire went inside (2T. 994) and searched tle mr with flash- lights (3T.1382). Hanton determined what was to be taken (2T.998, 1044, 3T.1336, 1380). Police seized a towel and two sixteen-ounce Pepsi~Cola bottles from the car (2T.1027, 1028). After the search of the entire car was com- pleted, Hanton advised Johnson that if nothing showed up in the tests of the items seized, he would not hear from the police. If he heard from the police, there would be trouble (3T.1383, 2T. 999-1000). Johnson was then told by either Hanton or Charvat that he could return to his apartment (2T.1043). The towel, later tested and found to be semen-stained (4T.2265), the Pepsi-Cola bottles and a carton of Lawson's milk, observed but not seized from the car (2T.1042-1043), were used in support of the probable cause alleged in an affidavit in application for a warrant to search the appellant's home shortly thereafter. The semen- - 28 - stained towel was admitted at trial (5T.2448), over objection, as State Exhibit 12. The State's only justifi- cation for this search was its claim that appellant consented to it (27.963, 964) ~6/ On the basis of the alleged consent, the trial court overruled appellant's motion to suppress (3T. 43533) 3 A prosecutor has the burden of proving that consent was freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 543 (1968). This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority. Id. Schneckloth v. Bustamonte, 412 U.SW®218 (1973), teaches that in determining whether a claimed consent is in fact voluntary, voluntari- ness "is a question of fact to be deter- mined from the totality of all the circumstances," Id., at 227. Schneckloth v. Bustamonte, supra, 412 U.S. at 229, mandates consideration of the "vulnerable subjective state of the person" who has allegedly consented. Moreover, courts must be especially alert for coercion, express or implied, no matter how subtle. Id., at 228. Viewed in their totality, the facts here amount to nothing more than a tired _6/ From the inception of the motion hearing, the prosecution's only justi- fication for the search of the appel- lant's car at midnight on November 21, 1975, was its claim of consent by the appellant (2T.963, 964) and testimony was limited to that question by the trial court (2T.978). - 29 - and intimidated individual of slight stature who, awakened from sleep, unin- formed of his rights and confronted by four armed police officers in the middle of the night, submitted to the demands of open and obvious police authority. As such, the only conclusion possible is that the State utterly failed to meet its burden of proving a free and volun- tary consent, and the trial court's. denial of appellant's motion to suppress was clearly erroneous. See Amos V. United States, 225 U.S. 313 (1921); Johnson v. United States, 333 U.S. 10, 68 (1948). Therefore, certiorari should be granted and petitioner's convictions should be reversed. Til. AN IMPORTANT QUESTION IS PRESENTED AS TO WHETHER PETITIONER'S FOURTH AND FOURTEENTH AMENDMENT RIGHTS WERE DENIED BY THE INTRODUCTION OF EVIDENCE DIRECTLY DERIVED FROM THE ILLEGAL ARREST OF THE PETITIONER. John Johnson was arrested without a warrant by Cleveland detectives on November 21, 1975, at approximately 7:00 p.m. while at work at a gasoline station (317.1243, 1249, 1251, 1284). Detectives Murphy and Mulhull wanted Johnson to make a statement at the police station concerning his activities on November 20th (3T.1338). When Johnson told them he couldn't leave his job (3T.1338), he was arrested (3T.1249, 1251, 1284, 1338) and subsequently booked in connection with the dis- appearance of Melissa Hinke (3T.1255, see also 2T.949-951). At the time of Johnson's arr all of the information possessed ae tke arresting officers Murphy and Mulhull related to an alleged attempt, the day before, to lure a girl named Kimberly Stephens into an auto on Eichorn Avenue (3T. 1241, 1257-1259), a mile and a half from where the victim was last seen (2T.1177). Detective Murphy had personally investi- gated the incident and had studied police reports (3T.1241). He knew that the girl was safe and had reported the inci- dent. to her parents (3T.1257-1258). He was also aware (3T.1241) that a Mr. Bosak had reported to police the license number of the auto involved in the Eichorn Avenue incident (listed to Johnson) and that Mr. Bosak described the driver of the car as having a full beard (2T.1)92, 3T.1754). But Johnson had no beards / At the time of arrest, the police had no information to connect Johnson with the Hinke case. The midnight search of Johnson's car had yielded two pop bottles of a size different from those the victim had in her possession at the time of her disappearance (2T. 1001). The towel which was found in the car was tested on November 21st and, again, on November 22nd (47.2265). But Detective Marisch testified that the police were not aware of the test results which showed a semen stain at the time of the arrest (2T.258). Marisch as The record indicated that the police first attempted to ascertain whether someone other than Johnson had used his car on November 20th, fourteen hours after Johnson's arrest, during interrogation (2T.932). jndicated that the police became aware of the results some time prior to taking Johnson's written statement (27... 227” 930, 958). Detective Koelliker also indicated that he was unaware of any test results seven hours after the arrest when he questioned Johnson (2? 4140" 1136). Immediately following his arrest, Johnson was taken to another gas station, at least a quarter of a mile away (3T.1263) to obtain the release of his car to the police (3T.1250). The car was subsequently towed (3T.1250) and searched at the police station (3T.1301, 1315). Johnson was taken to the police station (3T.1245) and questioned almost continuously (2T.1103, 37.1253, 1348- 1349) until 4:00 or 5:00 a.m. on November 22nd (3T.1348). The interro- gation was interrupted once when Johnson was taken by police to a Lakewood address to obtain a key ring (3T 1287, 1300) which held a trunk key to Johnson's car (3T.1275) anda penknife (3T.1296). With no more than two hours of sleep (3T.1349), nothing to eat (3T. 1356), and promises of being released (3T.1256, 1351, see also 5ST. 2512), Johnson made a written statement at 9:00 a.m. on November 22nd (27.932, 37.1255). After the statement was obtained, Johnson was not released (2T. 1111, 37.1353), but was subjected to further questioning by another team of detectives (2T.1100-1101, 3T.1353-1354). Evidence obtained from the searches of the car, the seizure of the key ring and the statements obtained during the Sun v. United States, 371 U.S. 471 se aphid tae was admitted at the tria1—?/ . roe the court denied the petitioner's otions to suppress (3T.1534-1536, 1542) An arrest is invalid Le 2 pursuant to probable Seuee teen a States v. Watson, 423 U.S. 411, 415 ee Beck ¥: Ohio, 379 U.S. 89, 91 04). 1s clear tha i available to the police meee of Johnson's arrest justified no more than a mere Suspicion of the commission of any crime by Johnson, certainly not : sufficient basis to justify the arrest y Murphy and Mulhull in connection with the Hinke di ey @ disappearance (37.1249, 1254- Furthermore, evidence a result of an unlawful areac Gake a Suppressed unless the primary taint is sufficiently attenuated. Brown v Illinois, 422 U.S. 590, 592 (1975); Wong (1963). Here, as in Brown, there was 8/ Evidence derived from the se the car included testimony et 2224, 5T.2371-2374) and State Exhibits 9-H, a blue sweatshirt (marked 3T 1698 and received 5T.2447) and 20, 20A, 20B, photographs of the car begenispey 4T.2217 and received 5T.1561 partial 4T.1917, 1921, 2239-2243). tate Exhibit 1, a penknife taken from the key ring (marked 3T.1558 and received ST. 2437). Evidence derived from the interrogations included testimony (4T.1916-1934, 2161-2168) and State Exhibit 13 and 13A Johnson's written statement Of November 22nd (marked 4T.1 received 5T.2448). Fes sos o intervening factor to eragen ones ats or innel taint of the unlawful raat y aad vy. Illinois, 422 U.S. says cde (1975), nor was the arrest a eareree i te e * ant in time to attenua ms at 603-604. Finally, as in Brown, ev the "(I]llegality here,.--, had a quality of purposefulness. 5 The impropriety of the argees ‘ was obvious; awareness of tha fact was virtually conceded by the two detectives when they repeatedly acknowledge, in their testimony, that the purpose of their action was igation oO woe toning: