Petition — Merlo v. Ohio

Supreme Court, U.S.

80-460 FILED

SEP 16 1960

CASE NO.

MICHAEL RODAK, JR., CLERK

IN THE

Supreme Court of the United States

October Term, 1980

>

JOSEPH FRANCIS MERLO,

RAYMOND PARKS,

HARRY BLACKFORD,

Petitioners,

—V—

STATE OF OHIO,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT FOR THE STATE OF OHIO

BERNARD A. BERKMAN

BERKMAN, GORDON, LEVY,

MURRAY and PALDA

2121 The Illuminating Bldg.

55 Public Square

Cleveland, Ohio 44113

(216) 781-5245

Attorney for Petitioners

GEORGE W. PALDA

Of Counsel

QUESTIONS PRESENTED FOR REVIEW

1. Where affidavits submitted to a

trial court identify specific portions of a

search warrant which are material and neces-

Sary to a finding of probable cause but which

are false, and proof of deliberate falsity or

reckless disregard of truth by the search

warrant affiant because of the inclusion of

false information, or the omission of excul-

patory or conflicting information within the

knowledge of the affiant at the time the

search warrant affidavit was drafted, is

offered by reference, in an affidavit, to the

sworn testimony of the affiant and his sub-

ordinate colleagues, and by reference to

documents, referred to by the search warrant

affiant, which were introduced as exhibits

in a related case, has a sufficient showing

of falsity or reckless disregard for the

truth of material and necessary facts in the

search warrant affidavit been made to require

an evidentiary hearing to determine whether

there have been Fourth Amendment violations?

2. Where a defendant enters a plea of

no contest pursuant to plea bargaining nego-

tiations in which no charges are dropped

against the defendant and no concessions are

made in a recommended sentence for incarcera-

tion and fines so that the sole predicate for

the plea of no contest is a stipulation of

facts which is to be tested for sufficiency

of proof of the essential elements of the

crimes charged, if the defendant is not per-

mitted by an appellate court to challenge

the sufficiency of the evidence presented in

the stipulation of facts, does the right to

due process guaranteed by the Fourteenth

Amendment require that the convictions and

sentences pursuant to a no contest plea be

vacated and the case remanded to the trial

court for further proceedings?

3. Where a search warrant tails to

particularize the items to be seized except

to direct seizure of documents which are

evidence of the violation of a criminal

statute which is extremely broad in scope

- ii -

and vague in definition, is the warrant over-

broad in violation of the requirements of the

Fourth Amendment?

4. Are the requirements of the Fourth

Amendment satisfied where a magistrate, in

issuing a search warrant, relies solely upon

conclusions drawn by a law enforcement officer

involved in an investigation of possible

criminal violations because of the alleged

expertise acquired in the course of that

investigation by the officer, rather than

requiring the presentation of the underlying

facts and circumstances to support the

conclusions set forth in the affidavit for

a search?

5. Is a state criminal statute viola-

tive of due process standards of the Four-

teenth Amendment where that statute attaches

criminal liability upon standards which are

not defined by the statute because

the statute does not provide clear notice of

prohibited conduct and ascertainable stan-

dards of guilt?

- 413 =

TABLE OF CONTENTS

TABLE OF pitu. 9 .t od | Peg

OPINIONS BELOW... ccccccccvccccccecs

JURISDICTION... ccccvececvcvecvevsees

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED.....-eeeeees

STATEMENT OF THE CASE... .cccccccces

REASONS FOR GRANTING THE WRIT

I. AN IMPORTANT QUESTION FOR

REVIEW IS PRESENTED,

INVOLVING THE NEED FOR

CLARIFICATION OF THIS COURT'S

DECISION IN FRANKS V.

DELAWARE, 438 U.S. 154 (1978),

CONCERNING THE ENTITLEMENT TO

AN EVIDENTIARY HEARING ON THE

QUESTION OF FALSE STATEMENTS

INCLUDED INTENTIONALLY, OR

WITH RECKLESS DISREGARD FOR

THE TRUTH, BY THE AFFIANT IN

A SEARCH WARRANT AFFIDAVIT

WHERE THE FALSE STATEMENTS

ARE MATERIAL AND NECESSARY

TO A FINDING OF PROBABLE

CAUSE. ccccccccccccccccccccces

II. AN IMPORTANT QUESTION IS

PRESENTED FOR REVIEW CON-

CERNING WHETHER CONVICTIONS

AND SENTENCES ENTERED PUR-

SUANT TO A NO CONTEST PLEA IN

STATE CRIMINAL PROCEEDINGS

MUST BE VACATED UNDER DUE

PROCESS REQUIREMENTS WHERE

THE SOLE PREDICATE TO THE

DEFENDANT'S PLEA OF NO

21

Ill.

IV.

TABLE OF CONTENTS (CONT. )

CONTEST PURSUANT TO PLEA

BARGAINING NEGOTIATIONS IS A

STIPULATION OF FACTS WHICH IS

INTENDED TO BE TESTED FOR

SUFFICIENCY OF PROOF OF THE

ESSENTIAL ELEMENTS OF THE

CRIME CHARGED, BUT THE DEFEND-

ANT, AFTER ENTRY OF THE PLEA,

IS NOT PERMITTED TO CHALLENGE

THE SUFFICIENCY OF THE EVI-

DENCE PRESENTED IN THE

STIPULATION OF FACTS......... 26

AN IMPORTANT QUESTION IS

PRESENTED FOR REVIEW CON-

CERNING WHETHER THE PARTICU-

LARITY REQUIREMENTS OF THE

FOURTH AMENDMENT ARE SATIS-

FIED WHERE A DESCRIPTION

PROVIDED BY THE WARRANT OF

ITEMS TO BE SEIZED DIRECTED

SEIZURE OF BOOKS AND RECORDS

THAT WERE EVIDENCE OF A VIO-

LATION OF A CRIMINAL STATUTE

WHICH WAS EXTREMELY BROAD IN

SCOPE AND VAGUE IN DEFINITION. 33

AN IMPORTANT QUESTION FOR

REVIEW IS PRESENTED CON-

CERNING WHETHER THE FOURTH

AMENDMENT REQUIREMENTS ARE

MET WHERE A MAGISTRATE, IN

ISSUING A SEARCH WARRANT,

RELIES SOLELY UPON CONCLU-

SIONS DRAWN BY A LAW ENFORCE-

MENT OFFICER, RATHER THAN

REQUIRING A PRESENTATION OF

THE UNDERLYING FACTS AND

CIRCUMSTANCES TO SUPPORT

THOSE CONCLUSIONS.....+eeeee- 38

2“ ¥Y @=

TABLE OF CONTENTS (CONT. )

V. AN IMPORTANT QUESTION IS

ca

PRESENTED FOR REVIEW CON-

CERNING WHETHER A STATE

CRIMINAL STATUTE VIOLATES

THE FOURTEENTH AMENDMENT

WHERE CRIMINAL LIABILITY

ATTACHES UNDER THE STATUTE

UPON STANDARDS WHICH ARE

NOT DEFINED... .ccccccccccccvce 49

Ca «ss sa eds oa bebe 6200065 6d 28 54

TABLE OF CONTENTS (CONT. )

APPENDIX

(Separately Bound)

Decision and Journal Entry

in the Court of Appeals,

Ninth Judicial District.........

Pretrial Order of the Court

of Common Pleas, Summit

COUMCYs GeO se ss cio dscasee nhéeesee

Pretrial Order of the Court

of Common Pleas, Summit

COURGY,. OMAOs es cccss rere errr

Judgment of the Supreme

COURT GE GHEOs bce cccccecscecsees

Order Extending Time to

File Petition for Writ

Ce fe Oe Te ea ee

Fourth Amendment to the

United States Constitution......

Fifth Amendment to the

United States Constitution......

Sixth Amendment to the

United States Constitution......

Fourteenth Amendment to the

United States Constitution......

Ohio Revised Code,

BOCCEON B291.3.02s .cescs ae ee ee

Ohio Revised Code, Section

SeancUn CPU BESASs TI) be ccvecees

Ohio Revised Code, Section

Seaeila {PEO BASSI TI) 02 ceccescs

- vii -

la

27a

29a

36a

38a

39a

39a

40a

40a

42a

43a

57a

TABLE OF CONTENTS (CONT. )

APPENDIX

(Separately Bound) Page

Ohio Revised Code, Section

2915.09 (Pre 12/15/77)..... Sere 59a

Ohio Revised Code, Section

2915.01 (Post 12/15/77) .ccceecscer 6la

Ohio Revised Code, Section

2915.02 (Post 12/15/77)..... ealhe 77a

Ohio Revised Code, Section

2915.09 (Post 12/25 777) «secesdése 82a

Ohio Revised Code,

Section 2923.04....... vrrrer Tre 85a

Petitioner's Supplementary

Affidavit in Support of

Evidentiary Hearing on

Search Warrant Affidavit...... oe 88a

Petitioner's Affidavit in

Support of Evidentiary

Hearing on Search Warrant

ALSTIGAVASs 600 ciensdsewneeeesoe ee 95a

Search Warrant Affidavit....... wee 100a

Excerpts from Trial Court

Transcript of Proceedings....... 119a

Excerpt from Petitioners'

Reply Brief to the Ohio

Court Of AppealB..cccccecdessece 122a

Constitution of Ohio,

Articole 3, G6GCIOR B0ciccocddecee 123a

Propositions of Law Presented

to the Ohio Supreme Court....... 125a

- viii -

TABLE OF AUTHORITIES

Cases

Andresen v. Maryland, 472 U.S.

463 (1976)... cccccccee eocccccee

Brady v. United States,

397 U.S. 742 (1970). cccccccvces

Calautti v. Franklin, 439 U.S.

ne 2 mele, SIS (L979)... ccccee

Franks v. Delaware, 438 U.S.

TEED 6 os 6eebendeveses ccccee

Giacco v. Pennsylvania, 283

U.S. 399 (1966)... ccccccccccee

In re Search Warrant Dated

Dated July 4, 1977, 572

P.2d 321 (D.C. Cir. 1977),

cert. den. 435 U.S. 925 (1978)..

Johnson v. United States,

& = Si! Wel: | ) Pe

Mapp v. Ohio, 367 U.S. 643 (1961)..

Moore v. Michigan, 355 U.S.

L155 (1957). ccc crerescccvveee

Palermo v. Warden, Green Haven

State Prison, 545 F.2d

BGG (1976) oc cccccccccccccccccccs

Santobello v. New York, 404

U.S. 257 (1971)... ccceee cocccece

State v. Louchheim, 296 N.E.

314, 250 S.E.2d 630 (1979)......

29

52,53

21,22,23,

24,25,26,

39

52

29

32

29,30,

31,32

24

TABLE OF AUTHORITIES (CONT. )

State v. Bruce Miller and

Gary Hall, Summit County

Common Pleas Court, Case

NO. 78-06-0663. ccccccccccscccece

State v. Young, 62 Ohio St. 2d

SIO CASSO) con ccsccvccveccstsecese

United States v. House, 604

Fea BASS TEER CARs ASTS) cccccer

United States v. I. H.

Hammerman, II, 528 F.2d

326 (4th Cir. 1975)..... jee cases

United States v. L. Cohen

Grocery Co., 255 U.S. 81

CEPEE) 0b 0066s Deb SS OB eOHEER OEE HOO 68

United States v. Martin, 615

Tem SLE (eee GEE. APOC) ccvccs nee

United States v. Park, 53l

F.2d 754 (5th Cir. 1976)........

United States v. Ventresca,

380 U.S. 102 (1965) ....-.eeeeeee

Constitutional Provisions

Fourth Amendment to the

United States Constitution......

Fifth Amendment to the

United States Constitution......

= x @

passim

7,18,35

25

32

51

24

25

46,47,48

TABLE OF AUTHORITIES (CONT. )

Page

Sixth Amendment to the

United States Constitution...... 207

Fourteenth Amendment to the

United States Constitution...... passim

Statutory Provisions

SO DB. 8.Cc BASST CS) ces cs ccewseseoees 2

Ohio Revised Code,

BOBCIOR Beare Wes eeCeoesoncopncoses L,2e3

oi BR. AN Se eer 2

BPaDe Oe wore rt ctovsecsere Leasde

53

re ee passim

BeBe Oke deadeccoeseracse’ assole

18,34,

35,41

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF OHIO

Petitioners Joseph Francis Merlo, Ray-

mond Parks and Harry Blackford pray that a

writ of certiorari issue to the Ohio Supreme

Court to review the judgment of that court

which dismissed petitioners’ appeal to that

court for want of substantial constitutional

question. The dismissal by the Ohio Supreme

Court of the appeal thereby affirmed the

judgment of the Ohio Court of Appeals for the

Ninth Appellate District which affirmed peti-

tioners' convictions in the Court of Common

Pleas for Summit County, Ohio, for illegally

conducting a bingo game, Ohio Revised Code

§2915.09(A) (2), for theft, Ohio Revised Code

§2913.02, and for gambling, Ohio Revised

Code §2915.02.

OPINIONS BELOW

The judgment of the Ohio Supreme Court

was rendered without opinion and was unreported.

It is set forth in the Appendix at 36a-37a. The

decision and journal entry of the Ohio Court

of Appeals for the Ninth Appellate District

is unreported and is set forth in the Appendix

at la- 26a.

JURISDICTION

The judgment of the Ohio Supreme Court

dismissing petitioners' appeal as of right was

entered on June 18, 1980. Appendix at 36a.

On August 8, 1980, Mr. Justice Stewart granted

an order extending the time within which to

file a petition for a writ of certiorari from

August 17, 1980 to and including September

16, 1980. Appendix at 38a.

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).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The text of the Fourth, Fifth, Sixth and

the pertinent portion of the Fourteenth Amend-

ment to the United States Constitution is set

forth in the Appendix at 39a-4la. The text of Ohio

Revised Code §§2913.02, 2915.01, 2915.02(A) (2),

2915.09(A) (2) and 2923.04 is set forth in the

Appendix at 42a-87a.

STATEMENT OF THE CASE

On June 14, 1978, a four-count indict-

ment was filed in the Common Pleas Court for

Summit County, Ohio, charging the petitioners,

Joseph Francis Merlo, Raymond Parks, Harry

Blackford and five other persons with the

crimes of engaging in organized crime (R.C.

§2923.04), illegally conducting a bingo game

(R.C. §2915.09(A) (2)), theft (R.C. §2913.02)

and gambling (R.C. §2915.02). The issuance

of the indictment occurred three days after

massive, simultaneous raids were conducted

by sheriff's deputies at various locations

in Summit and Stark Counties.

The raids were conducted under color

of seventeen search warrants which author-

ized the search of the two bingo halls,

seven residences, including those of the

petitioners, and eight automobiles. The war-

1/

rants were all based upon a single

/ two search warrants which authorized the

search of two autos were returned unexe-

cuted.

"Affidavit for Search Warrant" (Appendix at

100a). Sheriff's deputies executed the war-

rants and seized papers, records and money

from several of the residences. Large quan-

tities of personal papers and effects were

also seized from the petitioners' residences

(see, e.g., I1T. iss” bemceeal Order of

Common Pleas Court, Appendix at 27a).

The search warrant affidavit was osten-

sibly based upon the intermittent surveillance

of the bingo halls and the petitioners' resi-

dences by the affiant and deputies who he

directed and by the affiant's review of bingo

reports filed with the Office of the Ohio

Attorney General by the bingo game operators.

During the course of pretrial discovery and

during the course of the separate trial of

two of the petitioners' co-defendants, trial

counsel for petitioners became aware of state-

ments by the affiant in the warrant affidavit

2/

— Record references are indicated by volume

number, followed by T., followed by the

page number.

which were in direct conflict with infor-

mation in the bingo reports submitted to the

Attorney General and in direct conflict with

sworn testimony by the affiant and subordinate

officers at the trial of petitioners' co-

Ritcatentes” Thereafter, counsel for peti-

tioners timely filed motions to suppress

evidence obtained in the searches and seizures

based in part on the argument that false

statements, material to a finding of probable

cause, were intentionally or recklessly in-

cluded in the search warrant affidavit by

the affiant, and facts within the knowledge

of the affiant were intentionally or reck-

lessly omitted. Affidavits in support of

a request for an evidentiary hearing were

filed by attorneys for petitioners (4T. 12-

15, Appendix at 88a-99a) attesting to the

clear conflict between the search warrant

state v. Bruce Miller and Gary Hall,

Summit County Common Pleas Court, Case

No. 78-06-0663. Any record references

to this transcript of the proceedings

will be cited State v. Miller at _.

affiant's sworn testimony in a related trial,

and between exhibits introduced at that

trial and specifically identified sections

of the search warrant affidavit which were

material and indispensable to any finding

of probable ne” After an in camera

inspection of the affidavits, the trial

court overruled petitioners' motions for an

evidentiary hearing (Pretrial Order of Common

Pleas Court at 2, Appendix at 30a, 4T. 14).

Petitioners also filed pretrial motions

to suppress seized evidence on grounds that

the warrants were issued without probable

cause (3T. 5) and that the warrants were

overbroad because they permitted seizure of

any evidence of engaging in organized crime,

a broad and ill-defined statute (3T. 47).

~Y sogning' for each petitioner submitted

initial affidavits which were identical,

or virtually identical. Supplementary

affidavits were filed with the trial court

by attorneys for petitioners Merlo and

Parks. They were virtually identical in

content. Petitioner Blackford joined in

the supplementary affidavits (4T. 13).

Motions to dismiss the indictment were filed

on behalf of the petitioners on the grounds

that the organized crime statute (R.C.

bak de ots the bingo statute (R.C.

§2915.09(A) (2)) were unconstitutional because

they violated federal due process standards

(2T. 10, 2T. 15, Appendix at 119a-12la).

Although the trial court found that deputies

had seized items beyond the scope of the

warrant at many of the locations searched

(Pretrial Order of Common Pleas Court 2-5,

Appendix at 27a-28a), the trial court

overruled the motions to suppress.

The organized crime statute, R.C. §2923.04,

subsequently was found to be unconstitu-

tional by the Ohio Supreme Court in an

unrelated case, State v. Young, 62 Ohio

St. 2d 370 (1980).

The trial court also overruled all facets of

the motion to dismiss (Pretrial Order of

Common Pleas Court, Appendix at 29a, 30a).

Following completion of the trial of

two of petitioners' co-defendants (State v.

Bruce Miller and Gary Hall), petitioners

and the remaining co-defendants entered intom-

plea bargaining negotiations with the prose-

cution. Early in the plea bargaining nego-

tiations, it was clear that a negotiated no

contest plea was completely contingent upon

whether the parties could agree to a stipu-

lation of facts. It was clear to the parties

that petitioner Merlo's contention would be

that, upon the facts which were to be stipu-

lated by the parties, there was insufficient

proof of any crime committed by Joseph Merlo.

At a March 12, 1979 proceeding, the prose-

cutor reported to the trial court on the

progress of the plea bargaining negotiations:

"Okay. Now, underlying the entire

--an underlying part of this

agreement with regards to all

six Defendants is that 9:00

o'clock on Wednesday morning,

all Counsel are going to meet in

the Prosecutor's Office to see

whether or not we can agree upon

the underlying factual basis for

the no contest pleas, allow all

Counsel and the State to feel

that the appeal rights have been

adequately preserved in that

entire matter. It is contingent

upon us agreeing on Wednesday,

and if we are in agreement, we

will be here at 1:30 on Wednesday

for pleas. If not, we will be

here at 9:00 o'clock, Thursday

morning to pick a jury." (5T. 29).

After a brief exchange, the prosecutor re-

peated the understanding:

"{U]nderlying this entire agree-

ment is our ability to agree on

the procedure and factual basis

underlying the pleas because there

will probably be appeals in this

case because everybody is pleading

no contest. And if we agree on

this meeting to be held at 9:00

o'clock, Wednesday morning in my

office, we will be here at 1:30

on Wednesday for pleas.

"If we cannot agree on it, we will

be here at 9:00 o'clock, Thursday,

for jury selection." (5T. 30).

On Wednesday, March 14, 1979, the pro-

secutor reported to the court that an agree-

ment on stipulated facts had been reached.

The prosecutor briefly described the

agreement on negotiated pleas to the court

and stated:

"And Defendants--I would state to

the Court--do intend to have--

indicated the desire that they

do intend to perfect their ap-

peals after the findings--if and

when the Court makes findings of

guilty and sentences with regards

to these no contest pleas.” (5T.

35, emphasis added).

Moments later, in an exchange concerning

stays pending appeal, the trial court stated:

"Stay would be granted, if the

Court would find guilty." (5T.

36, emphasis added).

Each defendant thereafter entered pleas

of no contest pursuant to the plea bargain

agreement with the prosecutor.

Petitioner Harry Blackford pleaded no

contest to the counts charging illegally

conducting a bingo game, grand theft and

gambling, and the trial court granted dis-

missal of the charge of engaging in organized

crime (5T. 55, 58). Petitioner Raymond

Parks also pleaded no contest to charges

of illegally conducting a bingo game, grand

-.10 <-

theft and gambling, and the Count I charge

of engaging in organized crime was dismissed

(5T. 62). The prosecutor's recommended sen-

tence for Blackford and Parks was probation.

The plea bargain for Joseph Merlo did not

include dismissal of the organized crime

count (5T. 26, 32-33), nor did it include a

recommendation for leniency in sentencing.

Rather, the prosecution recommended maximum

sentences of incarceration and fines for each

of the crimes charged (5T. 26, 32-33). Pur-

suant to the agreement on the stipulation of

facts, petitioner Merlo pleaded no contest

to all four counts of the indictment (5T.

41-42).

The prosecutor then recited the stipu-

lation of facts that had been agreed upon.

The stipulation of facts included most of

the transcript of the State's evidence and

exhibits received in the related case of

State v. Bruce Miller (5T. 65-66, 73).

The prosecutor's theory in the case

was that the petitioners were all involved

- 2)

to some extent with other named co-defendants

in the operation of two bingo halls. Peti-

tioner Raymond Parks allegedly ran one hall

and petitioner Blackford allegedly ran the

other. Each hall was associated with two

churches which held Ohio licenses to run

bingo games on two nights per week. Raymond

Parks and Harry Blackford allegedly managed

supply companies which provided the games

with all of the necessary supplies. The

prosecution contended that the churches were

overcharged for the supplies, in violation

of the gambling statutes.

Further, the prosecution sought to

prove that petitioner Joseph Merlo, with his

wife, his sister, and with petitioner Parks'

wife, aided petitioners Parks and Blackford

in the transportation of cash receipts from

the games at the halls and that this money

was improperly withheld or "skimmed" from

the churches.

The stipulation of facts was almost

entirely derived from surveillance and the

= 12 <=

searches and seizures. The transcript of

the State's case in State v. Miller included

the testimony of three members of the

sheriff's department concerning the sur-

veillance which was conducted intermittently,

during a two-month period, for a total of

only seventeen days, from inside unmarked

cars parked at varying distances from the

places being watched (See, e.g., State v.

Miller at 359, 399). Surveillance never

showed movement of persons or packages from

the bingo hall to the Merlo residence, al-

though several of the co-defendants were

seen arriving and leaving at the apartment

building where petitioner Merlo and his wife

resided (E.g., State v. Miller, 361, 365,

373-375, 407, 410).

There were only two occasions when

surveillance disclosed that petitioner Merlo

was even at home. On April 19, 1978, detec-

tives photographed Joseph Merlo as he parked

his car in front of 1342 Weathervane Lane

- 13-

(State v. Miller, 366). No further activity

by any of the co-defendants was observed on

that day. On April 30th, Joseph Merlo was

seen driving away from the Weathervane Lane

apartment (State v. Miller, 409). Later,

Joseph Merlo returned to Weathervane Lane in

the company of Raymond Parks; Merlo was ob-

served holding a green cloth object in his

hand. Officers speculated that it was a

bank bag. Raymond Parks left with his wife

Cecilia who had arrived earlier (State v.

Miller, 411). A short time later, Joseph

and Nancy Merlo left their apartment and

drove off (State v. Miller, 411).

Among the exhibits introduced as part

of the prosecution's case were a brown metal

file box (State Ex. 29), a brown vinyl

attache case (State Ex. 30), and a brown

paper bag with ledger books (State Ex. 31),

all of which were seized during the search

of the apartment of Joseph and Nancy Merlo

at 1342 Weathervane Lane (State v. Miller,

384-386). The brown metal box and the brown

- 14 -

vinyl attache case contained receipts and

papers from AAA Concessions Company which

operated the concession stands at the bingo

halls (2T. 313, 342-346). Labels on the

ledger books connected them with the bingo

halls (5T. 71). However, the handwriting in

the ledger books subsequently was identified

by a handwriting expert as that of Merlo's

wife (5T. 71), as was the handwriting in

an address book seized from the Merlo apart-

ment (5T. 71). None of the evidence seized

from any of the locations was connected to

Joseph Merlo, by handwriting analysis or

otherwise.

Other than the surveillance testimony

described above, the only evidence con-

cerning Joseph Merlo was the testimony of

a worker at one of the bingo halls. She tes-

tified that she knew Merlo prior to working

at the bingo halls (State v. Miller, 312).

She stated that on the day people were being

hired to work at one of the bingo halls, she

o 218

saw Merlo at the hall (State v. Miller, 313).

Raymond Parks and Harry Blackford were also

at the hall (ibid.). The worker was not

asked to explain, nor did she explain, what,

if anything, Merlo did at the hall on that

one occasion. That was the total evidence

contained in the stipulation of facts against

petitioner Merlo, other than the fact that

his wife, his sister, and several acquain-

tances were implicated in the bingo oper-

ation.

After the stipulation of facts was pre-

sented by the prosecutor, counsel for peti-

tioner Merlo moved for judgment of acquittal:

"(W]e would urge that the Court

enter a judgment of acquittal

on the basis of the fact that

none of the charges have been

proved on the basis of the

recital of facts which the pro-

secution has just stated to the

Court.” (57. 76-77).

No objection was entered by the prosecution

to petitioner Merlo's motion for acquittal;

indeed, because it was anticipated. The

trial court, however, overruled the motion

= 16 «-

(5T. 79) and sentenced Merlc, Parks, Black-

ford and their co-defendants to the sentences

recommended by the prosecutor.

Thus, the trial court found appellants

Raymond Parks and Harry Blackford guilty of

illegally conducting a bingo game, grand

theft and gambling, and sentenced each of

the petitioners to suspended concurrent

imprisonment of two to ten years for grand

theft and six months for gambling. The

trial court also imposed a fine of $3,500.00

on each appellant and placed Parks and Black-

ford on probation for a period of two years

(5T. 80-83). Petitioner Merlo was found

guilty of all four counts in the indictment

(5T. 83). The trial court sentenced appel-

lant Merlo to concurrent terms of imprison-

ment of five to twenty-five years for

engaging in organized crime, three to ten

years for illegally conducting a bingo game,

two to five years for grant theft and six

months for gambling. Joseph Merlo was also

eae

fined $18,000.00 in connection with the four

counts in the indictment (5T. 85-86). Exe-

cution of sentences was stayed pending

appeal (5T. 78, 79, 80, 81, 83, 86).

On avpeal, the court of appeals held

that petitioner Merlo could not test the

denial of his motion for acquittal,

pursuant to a plea of no contest (Opinion of

Court of Appeals, Appendix at 5a-1l4a). How-

ever, the court did not vacate the convictions

and the plea and remand for further pro-

ceedings. The appellate court simply

wg

affirmed Merlo's convictions.

—§/ ni though the court of appeals overruled

petitioner Merlo's argument that the or-

ganized crime statute (R.C. §2923.04) was

unconstitutional (Opinion of Court of Ap-

peals, Appendix at 20-2la), the court,

Sua sponte, reversed petitioner Merlo's

conviction on Count I for engaging in

organized crime and dismissed that count

because Merlo had been convicted of the

substantive crimes in Counts II, III and

IV. (See, Opinion of Court of Appeals,

Appendix at 24a). Subsequently, in an

unrelated case, the Ohio Supreme Court

held that the organized crime statute,

R.C. §2923.04 was unconstitutionally

vague, in violation of the Fourteenth

Amendment (State v. Young, 62 Ohio St. 2d

370 (1980)).

- 18 -

The court of appeals also overruled

petitioners’ arguments that the trial court

erred by not granting an evidentiary hearing

on the question of intentional or reckless

incdysion of false material statements in

the search warrant affidavit. The court

held the affidavits by counsel which referred

to the search warrant affiant's testimony in

the related case of State v. Miller were

procedurally insufficient because they were

"hearsay statements" (Opinion of Court of

Appeals, Appendix at 19a). The court also

overruled arguments concerning the lack of

probable cause for the issuance of the war-

rants and the overbreadth of the warrants

(Opinion of Court of Appeals, Appendix at

15a-18a). The Court denied petitioners'

assignments of error that the bingo statute,

§2915.09(A) (2), violated Fourteenth Amendment

due process standards. The court held that

petitioners could not complain of the

vagueness of §2915.09(A) (2) because the

= 19 «

facts showed that they violated other pro-

visions of the statute (Opinion of Court df

Appeals, Appendix at 22a). However, the

court failed to note that petitioners were

charged in Count II only with a violation of

2915.09(A) (2), and not with other sections

of the statute (which were only misdemeanors).

With the exception of the court's sua

sponte reversal of petitioner Merlo's con-

viction for engaging in organized crime (see,

footnote 5, supra, at 18), the court of

appeals denied all assignments of error and

affirmed petitioners' convictions (Appendix

at 25a).

Petitioners' subsequent appeal to the

Ohio Supreme Court was dismissed without

opinion (Appendix at 36a).

@- 26 «

REASONS FOR GRANTING THE WRIT

I. AN IMPORTANT QUESTION FOR REVIEW IS

PRESENTED, INVOLVING THE NEED FOR

CLARIFICATION OF THIS COURT'S DECISION

IN FRANKS V. DELAWARE, 438 U.S. 154

(1978) , CONCERNING THE ENTITLEMENT

TO AN EVIDENTIARY HEARING ON THE

QUESTION OF FALSE STATEMENTS INCLUDED

INTENTIONALLY, OR WITH RECKLESS

DISREGARD FOR THE TRUTH, BY THE

AFFIANT IN A SEARCH WARRANT AFFIDAVIT

WHERE THE FALSE STATEMENTS ARE

MATERIAL AND NECESSARY TO A FINDING

OF PROBABLE CAUSE.

In Franks v. Delaware, 438 U.S. 154

(1978), this Court held that

"Where a defendant makes a sub-

stantial showing that a false

statement knowingly and inten-

tionally, or with reckless dis-

regard for the truth, was included

by the affiant in the warrant affi-

davit, and if the allegedly false

statement is necessary to the

finding of probable cause, the

Fourth Amendment requires that a

hearing be held at the defend-

ant's request." 438 U.S. at 155-

156.

In the instant case, petitioners care-

fully followed the procedures required by

Franks. The affidavits of petitioners'

counsel set forth specific "allegations of

deliberate falsehood or reckless disregard

for the truth." (Affidavit, paragraph 2,

* aa °

Appendix at 95a, Supplementary Affidavit,

paragraph 4, Appendix at 89a). Furthermore,

the allegations were supported by specific

reference to "the portion of the warrant

affidavit that [was] claimed to be false."

The affidavit pointed to falsehoods in the

affiant's claim of illegal activity and to

falsehoods in the allegation of the trans-

portation of bingo receipts. (Affidavit,

Paragraphs 3 and 4, Appendix at 96a, Supple-

mentary Affidavit, paragraphs 5, 6, 7,

Appendix at 89a-90a).

"Supporting reasons" required by Franks

for the claim of falsity were provided and

the sources of proof of those reasons--the

sworn testimony, in the related case of State

v. Miller, of the affiant and detectives who

affiant supervised, and reference to State

Exhibits in State v. Miller (bingo operators'

reports to the Attorney General - SX. l, 2;

summary of audits - SX. 3)--were also pro-

vided in counsel's affidavits. Reference to

the bingo operators’ reports to the Attorney

- 22 <-

General supplied an offer of proof that mate-

rial facts had been omitted. If the statements

which were attacked as deliberately or reck-

lessly false had been omitted, the affidavit in

support of the search warrants clearly would have

failed to set forth sufficient facts of under-

lying circumstances to support a finding of

probable cause. In fulfilling this last

requirement of Franks, the appellants met

every requirement of the Franks test.

Counsel's affidavits did not include

affidavits or sworn statements of witnesses

simply because the affidavits pointed to the

sworn testimony of the affiant and other

detectives who were prosecution witnesses in

the related case of State v. Miller to demon-

strate that the allegations of appellants'

counsel were substantial.

However, despite petitioners' substan-

tial showing, the lower courts refused to

recognize petitioners' right to an evidentiary

hearing.

- 23 -

Since the decision in Franks, lower

court decisions have shown a continued lack

of uniformity in the availability of an evi-

dentiary hearing on the question of the inclu-

sion of false statements in a search warrant

affidavit. Some courts have ordered evi-

dentiary hearings without requiring a sub-

stantial showing by the defendant or without

assessing whether the allegedly false state-

ments were necessary to a finding of probable

cause. See, State v. Louchheim, 296 N.C.

314, 250 S.E. 2d 630 (1979). Cf. United

States v. Martin, 615 F.2d 318, 328 (5th

Cir. 1980). Other courts, such as the lower

courts in the instant case, have required

much more than the "Substantial showing" set

forth in Franks to permit an evidentiary

hearing to be held. In the present case,

although the petitioners' attorneys supplied

numerous examples of false statements in the

search warrant affidavit, the appellate

court denied petitioners an inference that

the false statements were made intentionally

- 24 -

or recklessly. In effect, the court required

petitioners to prove their entire case

through an adverse witness, the affiant, in

advance of an evidentiary hearing. Barriers

to evidentiary hearings, such as those

erected by the courts in this case, are

totally contrary to the aim of the Franks

decision.

Moreover, while the Franks decision

dealt with the inclusion of false statements

in a search warrant affidavit, this Court

did not decide whether a showing of the

omission of exculpatory facts, or facts

otherwise material to the question of probable

cause required an evidentiary hearing. Al-

though several federal and state courts have

determined that an evidentiary hearing should

be held on the question of omission of

material facts, where a sufficient showing

has been made (e.g., United States v. Park,

5931 F.2d 754 (5th Cir. 1976), United States

v. House, 604 F.2d 1135 (8th Cir. 1979)),

this Court's guidance would resolve a

- 25 -

question of great significance to rights

guaranteed by the Fourth Amendment and left

undecided by the Franks decision.

Review of the question presented in

this case would provide needed clarification

of the Franks decision which, in turn, would

have a salutary effect upon the already

severely strained resources of the criminal

justice system by eliminating unnecessary

evidentiary hearings while assuring availabi-

lity of an evidentiary hearing where a proper

showing has been made. Because of the impor-

tance of the question presented herein, a

writ of certiorari should be granted.

II. AN IMPORTANT QUESTION IS PRESENTED

FOR REVIEW CONCERNING WHETHER

CONVICTIONS AND SENTENCES ENTERED

PURSUANT TO A NO CONTEST PLEA IN

STATE CRIMINAL PROCEEDINGS MUST

BE VACATED UNDER DUE PROCESS RE-

QUIREMENTS WHERE THE SOLE PREDI-

CATE TO THE DEFENDANT'S PLEA OF

NO CONTEST PURSUANT TO PLEA BAR-

GAINING NEGOTIATIONS IS A STIPU-

LATION OF FACTS WHICH IS INTENDED

TO BE TESTED FOR SUFFICIENCY OF

PROOF OF THE ESSENTIAL ELEMENTS

OF THE CRIME CHARGED, BUT THE

DEFENDANT, AFTER ENTRY OF THE PLEA,

- 26 -

IS NOT PERMITTED TO CHALLENGE THE

SUFFICIENCY OF THE EVIDENCE PRE-

SENTED IN THE STIPULATION OF FACTS.

In the present case, petitioner Joseph

Merlo entered pleas of no contest to all

counts of a four-count indictment pursuant

to an agreement reached in plea bargaining

negotiations. No reduction in charge or

leniency in sentence was involved in the plea

bargain. Petitioner Merlo was charged with

four crimes and he pleaded no contest to all

four crimes (5T. 83). Further, under the

terms of the plea bargain, the prosecutor recom-

nended that maximum imprisonment and maximum

fines be imposed in sentencing (5T. 26, 32-

33). The only basis for the no contest pleas

by petitioner Merlo, was that the pleas were

conditioned upon agreement by petitioner and

the prosecution to a stipulation of facts

(ST. 29-30) and the trial court would make a

finding of guilt or innocence based upon that

Stipulation of facts (5T. 35, 38, 83).

After recital of the stipulation of

facts by the prosecution (5T. 65-74),

- 27 -

appellant Merlo moved for judgment of acquit-

tal on ail counts of the indictment (5T. 76),

but the motion was denied by the trial court

(5T. 77). After findings of guilty based

upon the stipulation of facts were made by

the trial court (5T. 83), the sentence pre-

viously recommended by the prosecution (see,

5T. 26, 32-33), was imposed by the trial

court (5T. 85-86).

On appeal, appellant Merlo assigned as

error that judgment of acquittal should have

been entered by the trial court on all counts

of the indictment, based upon the stipulation

of facts which was presented to the trial

court. The court of appeals denied the

assignment of error and affirmed appellant

Merlo's convictions on the basis that the

agreement between Merlo and the prosecutor

contemplated an invalid procedure because a

no contest plea does not permit a defendant

to challenge the sufficiency of evidence con-

tained in a stipulation of facts (Opinion

of Court of Appeals, Appendix at 12a); despite

the fact that the only basis for the with-

- 28 -

drawal of appellant Merlo's plea of not

guilty and the entry of a no contest plea

was agreement upon a stipulation of fact

from which the trial court would make a

finding of guilt or innocence.

This Court has recognized that plea

bargaining is an essential part of the admi-

Nistration of justice.

"If every criminal charge were

subjected to full-scale trial,

the States and the Federal Gov-

ernment would need to multiply

by many times the number of

judges and court facilities."

Santobello v. New York, 404 U.S.

257, 260 (1971).

However salutary the effect of plea

bargaining is on the functioning of the

criminal justice system, this Court has

repeatedly stated that there must be safe-

guards to insure considerations of due pro-

cess in the securing cf an agreement between

a defendant and the prosecution. See, Brady

v. United States, 397 U.S. 742 (1970); Moore

v. Michigan, 355 U.S. 155 (1957).

Included among the due process safe-

guards to plea bargaining is the requirement

- 29 -

that a defendant must receive the benefits of

the plea bargain in exchange for the plea

which is entered. In Santobello v. New York,

404 U.S. 257 (1971), thc United States

Supreme Court held that:

"[T]he adjudicative element inherent

in accepting a plea of guilty,

must be attended by safeguards to

insure the defendant what is

reasonably due in the circum-

stances. Thosecircumstances will

vary, but a constant factor is

that when a plea rests in any sig-

nificant degree on a promise or

agreement of the prosecutor, so

that it can be said to be part of

the inducement or consideration,

such promise must be fulfilled."

404 U.S. at 262 (Emphasis added).

The court in Santobello went on to hold that

the prosecution's breach of a plea bargain-

ing promise entitled the defendant to either

specific performance of the agreement or the

vacating of the plea. 404 U.S. at 263.

The plea bargaining negotiations in this

case centered on whether the prosecution and

appellant Merlo could agree to a stipulation

of facts upon which the trial court would

make a finding of guilt or innocence. There

- 30 -

was no other purpose to the stipulation of

facts. If, as the court of appeals contended,

the agreement between Merlo and the prosecu-

tion was invalid because the trial court was

without power to accept a no-contest plea

contingent upon the weighing of a stipulation

of facts, then the court of appeals should

have vacated the convictions and sentences

and remanded for further proceedings. In

holding petitioner Merlo to his pleas of no

contest while ignoring the conditioned basis

for the entry of such pleas, the court of

appeals denied petitioner Merlo due process

protections of the Fourteenth Amendment.

Although lower court decisions are in

agreement with the Court's decision in Santo-

bello v. New York, supra, that a prosecutor's

promise must be fulfilled when a plea is

based upon that promise and is induced by

that promise, there is some question as to

whether a defendant is entitled to relief

where a prosecutor has made promises beyond

his power to fulfill. In Palermo v. Warden,

- 31 -

Green Haven State Prison, 545 F.2d 286 (1976),

the Second Circuit Court of Appeals held that

the reasoning of Santobello required that

relief be afforded to a defendant who was in-

duced to a plea by a prosecutor's promise

which was unfulfillable. Id., 545 F.2d at

296. That decision was in agreement with the

Fourth Circuit Court of Appeals' position

enunciated in United States v. I. H. Hammer-

man, II, 528 F.2d 326 (4th Cir. 1975).

However, this case presents an appropriate

vehicle to further clarify the protection which

surrounds a process which is absolutely essen-

tial to the orderly and effective functioning

of the criminal justice system. Although the

protections afforded defendants through this

Court's decision in Santobello were substantial,

this Court should should emphasize that a de-

fendant is entitled to relief from a bargained

plea, where a promise is breached, regardless

of whether the prosecutor's promise which in-

duced the plea was within the prosecutor's power

to fulfiii. Therefore, petitioner respectfully urges

- 32 -

this Court to grant review of this case.

III. AN IMPORTANT QUESTION IS PRESENTED

FOR REVIEW CONCERNING WHETHER THE

PARTICULARITY REQUIREMENTS OF THE

FOURTH AMENDMENT ARE SATISFIED

WHERE A DESCRIPTION PROVIDED BY

THE WARRANT OF ITEMS TO BE SEIZED

DIRECTED SEIZURE OF BOOKS AND RECORDS

THAT WERE EVIDENCE OF A VIOLATION

OF A CRIMINAL STATUTE WHICH WAS

EXTREMELY BROAD IN SCOPE AND VAGUE

IN DEFINITION.

On June 9, 1977, a judge of the Summit

County Common Pleas Court issued search

Warrants authorizing the search of two

businesses, seven residences and eight auto-

mobiles. The homes and automobiles of the

petitioners were searched pursuant to those

warrants and numerous items were seized pur-

Suant to the language of the search warrants

all of which contained the same description of

the things which could be seized:

"(Flor certain property, namely:

1. Supplies, books and records

and proceeds of illegal games and

gambling paraphernalia, which is

evidence of the commission of a

criminal offense, or the fruits

of that crime, to wit: Engaging

in Organized Crime and Conducting

- 33-

eo

an Illegal Bingo Game." (Emphasis

added).

Pursuant to the broad authorization of

the warrant, members of the Sheriff's depart-

ment seized hundreds of items, including

numerous personal effects of each of the

petitioners. Indeed, the trial court speci-

fically ordered the return of many items

Which it found: were improperly seized (Pre-

trial Order of Common Pleas Court, Appendix

at 27a, See also, iT. 155).

In the instant case, the warrants were

constitutionally defective because they

allowed virtually unrestricted discretion by

the officer executing the warrant as to what

was to be seized.

The crime of Engaging in Organized

Crime, set forth in R.C. §2923.04, was ex-

tremely broad in scope and vague in defini-

tion. Indeed, so vague in definition that

the Ohio Supreme Court recently found the

statute to be unconstitutionalily vague, in

violation of due process protections of the

Fourteenth Amendment. State v. Young, 62

Ohio St. 2d 370 (1980). The Ohio Supreme

Court described the impermissible scope of

the statute as reaching the facilitation of

any activities of a criminal syndicate

whether legal or illegal. The court felt

virtually any activity fell within the stat-

ute's reach. 62 Ohio St. 2d at 376-376.

Furthermore, the court emphasized that because

the definition of a criminal syndicate in-

cluded "five or more persons collaborating

to promote or engage in any offense for the

purpose of gain" (R.C. §2923.04(C)(7)), the

statute, again, had virtually limitless scope

because of its vagueness. 62 Ohio St. 2d at

378.

Thus, it becomes clear that an officer,

authorized to search for evidence of Engaging

in Organized Crime, was given unlimited dis-

cretion to conduct a general, exploratory

search for evidence of any criminal offense

identified in the criminal statutes. The

offense of Engaging in Organized Crime was

- 35 -

in no manner restricted to only bingo related

activity. The fact that the officers often

ventured far from items connected with bingo

(See, Pretrial Order of Common Pleas Court,

Appendix at 27a), underscores the limitless

direction of the warrant. The only limitation

in the warrant (actually, no limitation at

all) was that the property to be seized be

roughly classified as "Supplies, books and

records."

Clearly, the warrants in this case do

not meet the standards of particularity

approved by this Court in Andresen v. Mary-

land, 427 U.S. 463 (1976). In rejecting the

argument that the warrants in that case were

rendered general warrants because of the

inclusion of the phrase, "together with

other fruits, instrumentalities and evidence

of crime at this [time] unknown," the Court

stated that that phrase should be read with

preceding language which was highly particu-

larized. 427 U.S. at 481-482. However, the

particularization present in the Andresen

- 36 -

warrants simply was not present in the

warraits in the instant case. Moreover,

mere inclusion of a crime of conspiracy does

not render a warrant invalid, if sufficient

particularity is supplied to define the crime

of conspiracy. Thus, inreversing a suppression

order granted by a district court because of

the overbreadth of a search warrant, the

Circuit Court of Appeals for the District of

Columbia held that authorization to seize

evidence of "conspiracies to steal government

property and obstruct justice" did not run

afoul of the particularity requirement of the

Fourth Amendment because the warrant authori-

zation was specifically referenced to an

accompanying affidavit which defined the

"conspiracies" with sufficient particularity.

In re Search Warrant Dated July 4, 1977, 572

F.2d 321 (D.C. Cir. 1977), cert. den. 435

U.S. 925 (1978). However, the fatal flaw in

wv \

this case is the failure to provide any fur-

ther particularization beyond the reference

to two criminal statutes.

- 37 -

This case presents an appropriate oppor-

tunity to the Court to supply additional

guidance to federal and state trial courts

and federal and state law enforcement agencies

in an area of great complexity. This case

presents another facet of the problem con-

fronted in Andresen and it remains for this

Court to supply the sorely needed clarifica-

tion on a question of vital importance to

the criminal justice system and to the rights

of every citizen of the United States. MThere-

fore, petitioners respectfully urge the Court

to accept this question for review.

IV. AN IMPORTANT QUESTION FOR REVIEW

IS PRESENTED CONCERNING WHETHER

THE FOURTH AMENDMENT REQUIREMENTS

ARE MET WHERE A MAGISTRATE, IN

ISSUING A SEARCH WARRANT, RELIES

SOLELY UPON CONCLUSIONS DRAWN BY

A_LAW ENFORCEMENT OFFICER, RATHER

THAN REQUIRING A PRESENTATION OF

THE UNDERLYING FACTS AND CIRCUM-

STANCES TO SUPPORT THOSE CON-

CLUSIONS.

This Court has recently affirmed that

"The bulwark of Fourth Amendment

protection, of course, is the

Warrant Clause, requiring that,

absent certain exceptions, police

- 38 -

obtain a warrant from a neutral

and disinterested magistrate before

embarking upon a search." Franks

v. Delaware, 438 U.S. 154 (1978).

Justice Jackson made clear the elemental

values behind this requirement:

"The point of the Fourth Amend-

ment, which often is not grasped

by zealous officers, is not that

it denies law enforcement the

support of the usual inferences

which reasonable men draw from

evidence. Its protection con-

Sists in requiring that those

inferences be drawn by a neutral

and detached magistrate instead

of being judged by the officer

engaged in the often competitive

enterprise of ferreting out crime.

Any assumption that evidence

sufficient to support a magis-

trate's disinterested determination

to issue a search warrant will

justify the officers in making a

search without a warrant would

reduce the Amendment to a nullity

and leave the people's homes

secure only in the discretion of

police officers. Crime, even in

the privacy of one's own quarters,

is, of course, of grave concern

to society, and the law allows such

crime to be reached on proper

Showing. The right of officers

to thrust themselves into a home

is also a grave'concern, not only

to the individual but to a society

which chooses to dwell in reasonable

security and freedom from surveil-

lance. When the right of privacy

must reasonably yield to the right

- 39 -

of search is, as a rule, to be

decided by a judicial officer,

not by a policeman or Government

enforcement agent." Johnson v.

United States, 333 U.S. 10, 14

(1948) (footnotes omitted).

However, in the instant case, the court

of appeals permitted the bulwark of protection

to be breached by permitting a dilution of the

requirement that probable cause for the

issuance of a warrant must be demonstrated to

a neutral magistrate by setting forth facts

and circumstances supporting law enforcement

officers' beliefs. In the instant case,

rejecting petitioners' arguments that the

search arrent affidavit contained only con-

Cclusory allegations insufficient to show

probable cause, the court of appeals held

that a law enforcement officer's "opinions

concerning [crime] should be considered in

affidavits for search warrants. The issuing

magistrate must distinguish between pure con-

clusory statements and opinions based upon

an expert's knowledge and experience."

(Opinion of Court of Appeals, Appendix at

l6éa). The court of appeals went on to hold

t

- 40 -

that because the expert officer had reviewed

documents and had observed actions, the

officer's opinions were sufficient to support

probable cause for a warrant (ibid.).

In the very first paragraph of the affi-

davit for the search warrant, the officer

claimed that the crimes of Illegal Bingo

(R.C. §2915.09) and Engaging in Organized

Crime (R.C. §2923.04) were being committed

at two bingo operations, and that evidence or

fruits of those crimes would be found in the

seventeen locations for which search warrants

were sought. In the remainder of the first

two pages of the affidavit, the officer pro-

vided details of the places to be searched.

In order to support his claim that

crimes were being committed, the affiant

posited three theories of illegal conduct:

(1) that attendance at the two bingo opera-

tions was understated and, as a consequence,

the gross receipts of the games were under-

stated; (2) the two churches which held the

licences for the Friday and Saturday night

- 41 -

games were being cheated because those nights

were "more lucrative"; and (3) the churches

which held the licenses to conduct bingo

games were being charged excessive and in-

flated prices for supplies by the operators.

The "facts" for his second theory were con-

tained in paragraph number four. The officer

set forth the "facts" for his third theory

in one sentence for each bingo operation.

The remainder of the "fact" section of the

affidavit was used to describe the first

theory concerning attendance and the supposed

interrelationship of the places.to be searched.

In order to show that the attendance

and, thereby, the gross receipts were being

misstated, the officer claimed that "crowd

estimates" by deputy sheriffs on "twenty plus

times" (during the course of fourteen (14)

months - April, 1977, to June 1978) ranged

"from 400 to 650 people." Conspicuously

absent from the affidavit was any description

of how the "estimate" was obtained, whether

it was a simple guess, or an attempt to

- 42 -

count heads, or counting empty chairs.

Nothing was supplied to describe the process

of the estimates. The "estimates" were,

thus, thinly veiled hearsay conclusions.

The affiant juxtaposed the crowd esti-

mates against the claim that the bingo opera-

tors reported to the Attorney General a crowd

of 300 to 400 people per night. His conclu-

sion from these "facts" is that the operators'

reports were "inconsistent with the estimates

of the Sheriff's Department, and the actual

counts taken by the Attorney General during

their formal audits" (emphasis supplied, affi-

davit page 3, paragraph 2). The latter

statement is particularly astounding in light

of the total absence of any attendance figures

from the Attorney General's audits. Indeed,

the officer even failed to indicate whether

the crowd estimates and the audits covered

the same time period as that for which the

operators submitted reports.

The affiant concluded the third para-

]

graph by contrasting the average daily gross

- 43 -

receipts of $4,174.00, reported by the opera-

tors of the Lakemore Plaza bingo game to the

Attorney General, with a figure of $6,000.00

to $9,000.00 in gross receipts which was the

product of the Sheriff's Deputies' crowd

estimates multiplied by the affiant's per

player expenditure estimate. However, this

comparison was meaningless, not only because

of the lack of factual support for the crowd

estimates, but also because if the spending

estimate of $15.00 is multiplied times the

bingo operators' reported average crowd of

300 to 400 people per night, the result of

$4,500.00 to $6,000.00 is completely consis-

tent with the Attorney General's listed

audits of gross receipts of the Mahoning Road

bingo game: $4,442.50, $5,924.50, $6,383.95,

$4,795.75. Certainly, no taint of illegality

was shown by these figures.

It is abundantly clear that the officer's

theory of illegality because of misstatement

of attendance and gross receipts was grounded

on unsupported, conclusory statements.

- 44 -

Moreover, the few facts which were provided

in paragraphs two and three were completely

consistent with the conclusion that the games

were operated legally.

The officer's second theory of illegality

was set forth in paragraph four on pages

three and four of the affidavit. He implied

that the churches holding licenses for Friday

and Saturday nights were cheated because they

received money payments which were less than

or the same as the payments to churches

holding the bingo licenses for Thursdays and

Sundays, and Friday and Saturday nights were

"substantially more lucrative" than the

Others. Nowhere did affiant provide any facts

to support this statement about the "lucrative"

nature of Friday and Saturday nights. Further-

more, the audit of the Lakenors game on

tiuraday. March 23, 1978, referred to in the

affidavit, contradicted that claim and demon-

strated substantially higher receipts than

the March 24, 1978, audit of the Lakemore

game on a "lucrative" Friday night.

- 45 -

The third and final theory concerning

illegality was that the bingo operators ran

supply companies which overcharged the churches

for supplies. However, nothing was supplied

to the magistrate in order for the magistrate

to reach his own, constitutionally mandated,

independent conclusion concerning the prices

charged.

Nothing else in the entire affidavit

lends any support to a finding of probable

cause for the issuance of the search warrants.

Paragraph number 5 details the alleged trans-

portation of the money and records from the

bingo halls through the various homes and

places which were sought to be searched.

However, the transportation of money and

records set forth in the affidavit is equally

Suggestive of innocent as well as criminal

conduct.

Although affidavits are not to be read

in a hypertechnical manner, United States v.

Ventresca, 380 U.S. 102 (1965), the affiant

in this case had the aid of prosecutors to

- 46 -

develop the facts necessary for a showing of

probable cause. Furthermore, the affidavit

makes clear that the investigation of these

games had been going on for at least fourteen

months. This clearly cannot be said to be a

case of an affidavit "draitted by nonlawyers

in the midst and haste of a criminal investi-

gation." United States v. Ventresca, supra,

380 U.S. at 108. There is no doubt in this

case that the showing of illegality in this

affidavit is attempted only through conclusory

statements. Unable to recite facts, the

affiant and prosecutors relied on the quantity

of sentences and paragraphs to support their

allegation of probable cause. The only true

"facts" in this affidavit described purely

innocent behavior.

Viewed in its entirety, this affidavit

utterly fails to set forth sufficient facts

to allow an independent, detached magistrate

to draw his own conclusions concerning probable

Cause. At every critical juncture in the

affidavit where an allegation of illegality

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is made, the affidavit contains nothing more

than bald, conclusory statements. In some

instances, the conclusions are strung together

to reach further unsupported conclusions.

Clearly the affidavit in this case was insuf-

ficient to support probable cause and the

items seized should have been suppressed.

Mapp v. Ohio, 367 U.S. 643 (1961).

As the court of appeals opinion in this

case clearly demonstrates, this Court's pro-

nouncements in United States v. Ventresca,

Supra, have been miscontrued. Subsequent

decisions by this Court have emphasized the

central role that an independent magistrate's

determination of probable cause plays in

safeguarding Fourth Amendment rights.

Continued misinterpretation of Ventresca by

lower courts will continue to defeat this

Court's attempts to supply guidance to a com-

plex and important question of constitutional

law. Therefore, the Court should accept the

question presented for review and upon review

reverse the judgment of the courts below.

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V. AN IMPORTANT QUESTION IS PRESENTED

FOR REVIEW CONCERNING WHETHER A

STATE CRIMINAL STATUTE VIOLATES

THE FOURTEENTH AMENDMENT WHERE

CRIMINAL LIABILITY ATTACHES UNDER

THE STATUTE UPON STANDARDS WHICH

ARE NOT DEFINED.

During pretrial proceedings, petitioners

Merlo, Parks and Blackford moved to dismiss

count 2 of the indictment, conducting an

illegal bingo game, R.C. §2915.09) (A) (2),

because the statute was unconstitutionally

vague (2T. 15-16, 5T. 63). On appeal,

appellants' assignments of error were over-

ruled.

R.C. §2915.09(A) (2) provides:

"Sec. 2915.09. (A) A charitable

organization that conducts a bingo

game shall:

",..(2) Use all of the gross

receipts from the bingo game for

paying prizes, for the charitable

purposes listed in its bingo li-

cense application, for purchasing

or leasing bingo cards and other

equipment used in conducting the

bingo game, hiring security per-

sonnel for the bingo game, or

advertising the bingo game provided

that the amount of the receipts

so spent is not more than is

customary and reasonable for a

Similar purchase, lease, hiring,

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or advertising, for renting premises

in which to conduct the bingo game,

and for the maintenance, expense,

and cost of a building owned by

the charitable organization in which

the bingo game is conducted,

except that, for each bingo session,

the total amount of the gross

receipts used for the maintenance,

expense, and cost of the building

shall not exceed the lesser of

two hundred fifty dollars or

twenty-five per cent of the gross

receipts from the session."

Although the statute lists various expenses

which are allowed while conducting a charita-

ble bingo game, the legality of the expendi-

tures rests solely upon the meaning of the

phrase:

"provided that the amount of the

receipts so spent is not more than

is customary and reasonable for a

Similar purchase, lease...."

Nowhere in the remainder of the section or in

other sections of the Ohio bingo statutes are

the phrases "customary and reasonable" and

"Similar purchases" defined. As a result,

one who is conducting a charitable bingo game

is given no guidance as to what conduct is

prohibited and must guess at its meaning.

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In United States v. L. Cohen Grocery Co.,

255 U.S. 81 (1921), this Court reviewed the

constitutionality of a federal law which

prohibited:

"any person willfully...to make

any unjust or unreasonable rate

or charge in handling or dealing

in or with any necessaries;...

(e) to exact excessive prices for

any necessaries...." 255 U.S.

at 86.

The Court defined the question before it to

be whether the statutory language cited above

"constituted a fixing by Congress

of an ascertainable standard of

guilt and are adequate to inform

persons accused of violation

thereof of the nature and cause of

the accusation against them." 255

U.S. at 89.

The Court held that the statute was clearly

unconstitutional. The Court adopted the

opinion of the lower court that:

"{T]o attempt to enforce the

section would be the exact equiva-

lent of an effort to carry out a

statute which in terms merely

penalized and punished all acts

detrimental to the public interest

when unjust and unreasonable in

the estimation of the court and

jury." 255 U.S. at 89.

- 51-

See, Giacco v. Pennsylvania, 382 U.S. 399

(1966).

This Court's recent decision in

Calautti v. Franklin, 439 U.S. 379, 99 S.Ct.

675 (1979), is illustrative of the defects

present in §2915.09(A) (2). In Colautti, a

section of the Pennsylvania Abortion Control

Act imposed a penal sanction upon any person

who performed an abortion and who failed to make

a determination on whether a fetus was "viable."

This Court held that the section was unconsti-

tutionally vague. The Court also noted that

the ambiguity of the statute was "aggravated

by the absence of a scienter requirement with

respect to the finding of viability." 439

U.S. at ____, 99 S.Ct. at 683. The Court also

noted that the statute was fatally vague

because there was doubt as to whether the

standard was "purely subjective" or "mixed

subjective and objective."

The instant statute also imposes criminal

liability without a scienter requirement.

Further, the vagueness of §2915.09(A) (2) is

- 52 -

the same as that found fatal to the statute —

in Calautti. Here, the standard of "customary

and reasonabie" might well be purely subjec-

tive, or mixed subjective and objective. In

short, an ordinary person is given no notice

of the standards for fixing guilt. Further,

the statute leaves a judge and jury free to

decide, without any legally fixed standards,

what is prohibited and what is not.

Moreover, identical conduct prohibited

by §2915.09(A) (2) is also prohibited by the

general gambling statute, §2915.02, classified

as a misdemeanor. However, because of the

vagueness of §2915.09(A) (2), a third degree

felony, a prosecutor can exercise unrestrained

discretion to charge either a felony or a

misdemeanor for identical conduct.

For all of the foregoing reasons

§2915.09(A) (2) clearly violates the Fourteenth

Amendment. Because the courts below failed

to strike down this obviously constitutionally

defective criminal statute, persons are

threatened with prosecution, are prosecuted

= 53 -

and are convicted under a statute which

violates basic due process rights protected

by the Fourteenth Amendment. This Court

should accept review of this question and in

ruling this statute to be unconstitutional,

provide additional guidance to the courts and

legislatures.

CONCLUSION

This petition presents questions important

to the protection of constitutional rights of

every citizen. Moreover, review by this Court

of the questions presented herein will provide

needed clarification and guidance to the daily

functioning of the criminal justice system.

Therefore, for all reasons set forth in

this petition, petitioners Joseph Merlo,

Raymond Parks and Harry Blackford respect-

fully urge this Court to grant the writ of

certiorari and accept this case for review.

Upon review, this Court should reverse

- 54 -

petitioners' convictions.

GEORGE W. PALDA

Of Counsel

Respectfully submitted,

BERNARD A. BERKMAN

BERKMAN, GORDON, LEVY,

MURRAY and PALDA

2121 The. Illuminating Bldg.

55 Public Square

Cleveland, Ohio 44113

(216) 781-5245

Attorney for Petitioner

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