Petition — O'Brien v. United States

— —

Off.ce - Supreme Court, U.S.

ILE D

one JAN 25 1982

In the Supreme Cqurt

OF THE SY are a

United States

Octoser TERM, 1981

Currrorp Dol Lez,

Petitioner,

vs.

Unitep States or AMERICA,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

LawRENCE J. SEMENZA

P.O. Box 7823

Reno, Nevada 89510

(702) 786-5344

Counsel for Petitioner

BOWNE-PERNAU WALSH © 190 NINTH ST. © S.F., CA 94103 * (415) 864-2300

QUESTIONS PRESENTED

1. Whether the Court of Appeals erred in denying the

Petitioner’s Motion to Suppress Evidence due to the con-

stitutional insufficiency of an affidavit. The affidavit did

not establish the probable cause necessary to find Peti-

tioner was involved in violations of federal narcotics laws.

2. Whether Petitioner’s warrantless arrest, based on

information from an untested source, meets the requisite

requirements for probable cause.

3. Whether the Court of Appeals erred in admitting

the oral statement given by Petitioner subsequent to his

arrest in direct contravention of Miranda v. Arizona.

ji

TABLE OF CONTENTS

Questions presentecc ee Se

Opinion below ............................ wl

Jurisdiction C

Statement of the cases 3

Reasons for granting the writ

1

District court erred in denying appellant’s motion to

suppress evidence

II

Whether petitioner's warrantless arrest, based on

information from an untested source, meets the

requisite requirement for probable cause established

by the United States Supreme Court in Aguilar v.

—8 — —ñ—ñ—̃ —-—

III

Whether the court of appeals erred in admitting the

oral statement given by petititioner subsequent to

his arrest in direct contravention of Miranda v.

Arizona

Conclusion 5

14

16

21

TABLE OF AUTHORITIES CITED

Cases

Page

Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.

II 7, 8, 10, 11, 12, 14

Edwards v. Arizona, ........ 9 — , 101 S. Ct. 1880

. 18, 19,20, 21

Fare v. Michael C., 442 U.S. 707, 61 L. Ed. 2d 197, 99

D ETS IC Ba ES? EERE 19, 20,21

Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525,

l anna siscecicescaticsicscctianesccscsscecese 18

Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019,

1023, 82 L.Ed.2d 1461 (1938) 18

Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L. Ed.

r RELIES AE ee 19

Miranda v. Arizona, 394 U.S. 436, 86 S.Ct. 1602, 16

L.Ed.2d 694 (1966) i, 4, 16, 17, 18, 19, 20, 21

Rhode Island v. Innis, 446 U.S. 291, 298, 100 S.Ct.

1682, 1688, 64 L. Ed. 2d 297 (1980) 19

Sgro v. United States, 287 U.S. 210, 53 S.Ct. 140

( 5 13

Silverthorne Lumber Co. v. United States, 251 U.S.

385, 40 S. Ct. 182, 64 L. Ed. 319 (1920) 15

Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584,

21 L. Ed. 2d 637 (1969) 8, 9, 10, 12, 14

United States v. Harris, 403 U.S. 573, 91 S. Ct. 2075,

,, ...... 11

United States v. Larkin, 510 F.2d 13 (9th Cir. 1974) 9, 10

United States v. Lopez-Ortiz, 492 F.2d 109 (5th Cir.

1974) —. — 16

United States v. Neal, 500 F. 2d 305 (10th Cir 1974) ... 13

Whiteley v. Warden, 401 U.S. 560, 28 L. Ed. 2d 306, 91

Dre ...... 12

iv

Tasie or AuTuHorities Crrxo

Cases

Page

Williams v. United States, 361 F.2d 280 (5th Cir. 1966) 16

Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407,

9 L. Ed. 2d 441 (1963) 15

United States Constitution

Fourth Amendment i was Tou

Statutes

| e 2

299066 . 2

28 USC Section 12541) ae

In the Supreme Court

OF THE

United States

Octroser Term, 1981

Currorp Doyie LEE,

Petitioner,

vs.

Unirep States or AMERICA,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

The Petitioner, Clifford Doyle Lee, respectfully prays

that a Writ of Certiorari issue to review the judgment

and opinion of the Ninth Circuit Court of Appeals entered

on September 10, 1981.

OPINION BELOW

The Memorandum Opinion and Order of the Court of

Appeals for the Ninth Circuit appear in the Appendices

attached hereto.

JURISDICTION

The Judgment of the Court of Appeals was entered on

September 10, 1981. Petition For Rehearing was denied on

November 12, 1981. Jurisdiction of this Court is invoked

under 28 USC § 1254(1).

2

STATEMENT OF THE CASE

Petitioner and two Co-Defendants were arrested without

a warrant on September 14, 1979, for violation of federal

narcotics laws. The arrest occurred in Sparks, Nevada.

Petitioner Lee was convicted after trial by jury of pos-

session of a controlled substance with intent to distribute,

in violation of 21 USC § 841(a)(1), and conspiracy to pos-

sess and distribute a controlled substance in violation of

21 USC 5846.

Petitioner filed a pretrial Motion to Suppress the evi-

dence on November 20, 1979. A Minute Order denying Pe-

titioner’s Motion was filed on January 11, 1980. The Order

was devoid of any discussion of facts or applicable case

law supporting the Court’s decision.

Sometime in August of 1979, Drug Enforcement Admin-

istration (hereafter referred to as “DEA”) Agents began

a dialogue with Kenny Anderson, incarcerated in the Clark

County jail for burglary. Anderson, an untested source,

provided information to the DEA Agents about a ware-

house burglary which occurred on March 25, 1979. The

burglary involved ten slot machines which were taken

from the Golden Nugget Casino in Las Vegas. Anderson

was currently serving time as a result of the above-men-

tioned burglary. He informed the Agents that Petitioner,

Clifford Lee, was in possession of approximately five of

the stolen slot machines and at some time in the future,

the machines would be exchanged for narcotics. The in-

formation regarding the burglary of the Golden Nugget

Casino was verified by the DEA Agents. The Agents were

not able to verify that Petitioner Lee was in possession of

the five slot machines.

3

Anderson provided the DEA agents with additional in-

formation including the fact that Petitioner would be con-

tacting his source for amphetamines in Oregon.

Independent evidence established that Lee had visited

Anderson in the Clark County Jail on several occasions.

However, there was no evidence to establish whether

Anderson spoke with Lee immediately preceding the trip

from Las Vegas to Reno, Nevada, where Petitioner was

arrested.

From the information provided by Anderson, the DEA

Agents conducted spot surveillance on various vehicles

that might be used to transport the stolen slot machines to

Oregon. Anderson apprised the DEA Agents that the slot

machines would be moved from Las Vegas to Oregon in the

near future, without specifying a date or time.

On September 14, 1979, the DEA Agents were advised

that one of the vehicles under surveillance, a 1979 Cadillac

El Dorado, pulling a U-Haul trailer, was presumably en

route to Oregon.

Las Vegas DEA contacted the Reno DEA with the in-

formation that the Cadillac towing the U-Haul was seen

going north toward Reno. The Las Vegas DEA requested

surveillance of the automobile by Reno DEA Agents.

Upon reaching the Reno city limits, the driver of the

Cadillac pulled into a service station. After servicing the

vehicle, the driver proceeded to the MGM Grand Hotel in

Reno, Nevada, where the car and trailer were parked in

the hotel parking lot.

4

The driver of the vehicle, later identified as the Peti-

tioner, Clifford Lee, left the vehicle and entered the casino.

Petitioner proceeded to a bar where he met with two other

individuals (Co-Defendants Brown and O’Brien) for ap-

proximately 20 to 30 minutes.

The DEA surveillance team, monitoring the activities of

the three men in the bar, witnessed nothing significant. The

three individuals left the hotel, and once in their vehicles,

returned to the service station where Petitioner Lee had

originally serviced his vehicle. Co-Defendants Brown and

O’Brien were driving a Chevrolet Blazer bearing Oregon

license plates.

While in the service station lot, the Blazer was parked

next to the Cadillac. The Co-Defendants O’Brien and

Brown walked to the rear of the Cadillac, whereupon they

unhooked the U-Haul trailer. They proceeded to hook the

trailer to the back of the Chevrolet Blazer. The surveillance

team’s view of the incident was obstructed and the lighting

at this time of night was less than perfect. They were un-

able to discern any significant exchanges between the

parties.

The Co-Defendants Brown and O’Brien returned to the

Chevrolet Blazer and drove to the west end of the parking

lot. The Agents concluded that the vehicles were leaving

the area. At this time, the three defendants were arrested

and charged with unstated narcotics violations.

The three Defendants were advised of their constitu-

tional rights pursuant to the Miranda decision from a card

which one of the DEA Agents carried with him. The three

5

individuals, Lee, Brown and O'Brien were found to have

understood their rights.

At this time, one or two of the Defendants, who were

unable to be identified by the DEA Agents, asked to speak

to an attorney. At this time, the questioning was cut off

and the Defendants were transported to the Sparks County

Jail.

Three search warrants were issued by Judge Harold O.

Taber, United States Magistrate. The warrants authorized

the search of a briefease taken from the Chevrolet Blazer

as well as a search of the trunk of the Cadillac and U-Haul

trailer.

The briefcase contained $39,500 in cash as well as a

loaded revolver. The search of the Cadillac produced 12

one-pound packages of amphetamine powder. Five stolen

slot machines were found in the U-Haul trailer. In addi-

tion, Petitioner’s fingerprints were lifted from one of the

machines.

At the Sparks Jail, Petitioner was advised that he had

a right to an attorney, and a DEA Agent proceeded to

question Petitioner. At this time, Petitioner made in-

criminating admissions to the Agent. The admissions,

highly inculpatory in content, were admitted into evidénce

at trial.

Following a jury trial, the Petitioner was convicted of

possession with intent to distribute a controlled substance

and conspiracy to possess with intent to distribute a con-

trolled substance. The Petitioner received a sentence of

four years plus special parole of two years as to Count

6

Three, and three years plus two years special parole as to

Count Five, to run consecutively.

REASONS FOR GRANTING THE WRIT

The opinion of the Ninth Circuit Court of Appeals sum-

marily dismissed the questions on appeal. There is an

urgent need to review the record regarding these issues.

Without citing any applicable case law authority, the

Court of Appeals arbitrarily concluded that there was no

merit in any of the Petitioner’s contentions. This conten-

tion of the Ninth Cireuit Court of Appeals flies directly in

the face of well-established case law which has emanated

from the United States Supreme Court.

Counsel is mindful of the fact that this Court is one of

limited jurisdiction. As such, it is within the discretion of

the Justices to deny a Writ of Certiorari. However, the

holding of the Court of Appeals in the present case is

repugnant to the laws of these United States. The issues

involved in this case are sufficiently significant to warrant

the Court’s attention. The review by the Ninth Circuit

Court of Appeals was completely inadequate. When an

individual is to be deprived of his liberty in a federal

penitentiary, the reviewing court must do more than sum-

marily dismiss an appeal. The existing case law regarding

the issues to be addressed in his brief are directly on point

and were obviously overlooked on appeal.

Petitioner seeks full review by this Court. Alternatively,

Petitioner seeks a grant of certiorari and remand to the

United States Court of Appeals for the Ninth Cireuit for

7

reconsideration and findings which comport with the estab-

lished constitutional principles found in this Petition.

DISTRICT COURT ERRED IN DENYING APPEL-

LANT’S MOTION TO SUPPRESS EVIDENCE

The affidavit relied upon by the District Court, as well as

the Ninth Circuit Court of Appeals, is based entirely upon

information provided by an untested informant, Kenny An-

derson. The statements elicited froin Anderson were mere

conclusions and conjectures, based on nothing more than

hunches. Anderson’s statements failed to reveal any facts

from which a disinterested Magistrate could infer probable

cause to arrest the Petitioner. An appropriate starting

point for review of the case law, defining the probable

cause requirement for a warrantless arrest, is Aguilar v.

Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

In the majority opinion in Aguilar, the Court concluded

that the affidavit in question did not meet the stringent re-

quirements established by the Fourth Amendment. The de-

cision stated:

“... The affidavit here not only ‘contains no afiirma-

tive allegation that the affiant spoke with personal

knowledge of the matters contained herein’ it does not

even contain an ‘affrmative allegation that the affiant’s

unidentified source’ spoke with personal knowledge.

For all that appears, the source here merely believed

or concluded that there were narcotics in petitioner’s

possession. [Emphasis added.]. . The magistrate

must be informed of some of the underlying circum-

stances from which the informant concluded that the

narcotics were where he claimed they were, and some

of the underlying circumstances from which the officer

concluded that the informant, . . . was credible or his

information reliable... Otherwise, the inferences from

the facts which lead to the complaint will be drawn not

by a neutral and detached magistrate as the Constitu-

tion requires, but instead, by a police officer engaged

in the often competitive enterprise of ferreting out

crime. .. .” At 113-114. [Citations omitted.]

The above-cited quotation illustrates why the affi-

davit in the present case does not meet the two-pronged

test of Aguilar. The first prong of Aguilar, “basis-of-

knowledge,“ requires that facts be revealed which will al-

low the judicial officer making the probable cause deter-

mination to determine if the informant had a basis for his

allegations. The second prong of Aguilar, the “veracity”

prong, requires that information be brought to the atten-

tion of a neutral magistrate to allow him to determine the

credibility of the informant or, in the alternative, the re-

liability of the information presented.

It is the contention of the Petitioner that the affidavit

issued by the magistrate in the instant case does not mea-

sure up to the threshold requirements for Aguilar or its

progeny.

A further refinement of the basis-of-knowledge test es-

tablished in Aguilar is found in Spinelli v. United States,

393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). The

Spinelli decision holds that probable cause must be shown

on the basis of facts rather than mere conclusions. Justice

White stated in Spinelli:

“Where information has been obtained from someone

else, where the officer’s information is hearsay, no war-

9

rant should issue absent good cause for crediting that

hearsay.” At 423-424. (1969, White, J., concurring.)

In the instant case, Anderson failed to provide facts upon

which an arrest could be made, but instead, provided mere

conclusions and suppositions based upon his relationship

with Petitioner Lee. There is no indication in the affidavit

that the informant had any personal knowledge of any of

the specifics cited in the affidavit. Pertinent language in

Spinelli fits the situation at hand:

„. .. This meager report could easily have been ob-

tained from an offhand remark heard at a neighbor-

hood bar or could have been a casual ramor cireulat-

ing in the underworld.” At 416.

In the case at bar, the information provided the DEA

Agents in Las Vegas was nothing more than casual ob-

servations without any specific, detailed accounting of the

alleged narcotics deals.

In the absence of personal observations provided by the

informant, the Court in Spinelli found that a sufficient basis

for the information provided by the informant could be

gleaned from the detailed information which he had pro-

vided in the past. For instance, where:

“the accused’s criminal activity in sufficient detail that

the magistrate may know that he is relying on some-

thing more substantial than a casual rumor... .” At

416.

In United States v. Larkin, 510 F.2d 13 (9th Cir. 1974),

the facts of the case are strikingly similar to the case at

bar. Through an informant’s tip, Larkin was arrested by

Drug Enforcement Officers. The question addressed by the

10

Ninth Circuit dealt with the informant’s basis for believing

that a narcotics transaction was transpiring. Judge Huf-

stedler, writing for the panel, stated:

“A statement that a vehicle of a described make with

an identified license number will be proceeding toward

Los Angeles from El Centro at a certain time is in-

formation that could be readily obtained by a by-

stander observing the vehicle on the road from El

Centro to Los Angeles, .. . Nuching about the described

features of the car or its direction points to anything

suspicious, let alone criminal. That a vehicle matching

the description was spotted along a highway from El

Centro in the general direction of Los Angeles, corro-

borates nothing except, possibly, the ability of the in-

formant accurately to relay what he has seen or what

he has overheard. No hint is given thereby that the in-

formant was truthful in reporting that the vehicle con-

tained contraband. Nor does the observation supply

any information about how the informant knew that

contraband was being transported.” At 15.

Here, the officers had no evidence, save the information

of an untested informer that a crime was being committed

by the Petitioner. The mere fact that the Petitioner was

driving an automobile with «a U-Haul attached to the back

end on a public highway is hardly worthy of attention in

this day and age of mobility.

Therefore, it would appear from the language excerpted

from the Larkin opinion, as well as the preceding cases of

Aguilar and Spinelli, that Kenny Anderson’s “basis of

knowledge” regarding the exchange of stolen slot machines

for drugs provides no basis for a determination of probable

cause.

11

If no showing is made as to an informant's basis for in-

formation, then the first prong of Aguilar has not been es-

tablished with sufficiency, and then the Court must con-

sider the second prong, or the reliability factor.

This Court has enunciated several ways in which the re-

liability of an informant may be tested. In United States v.

Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971),

the majority held:

“The accusation by the informant was plainly a dec-

laration against interest since it could readily warrant

a prosecution and could sustain a conviction against

the informant himself.” At 580.

In this case, one must postulate: What statements may

be construed as declarations against Anderson’s interest?

Petitioner submits that Anderson’s statements are not dec-

larations against interest and do not establish the reliabil-

ity required to meet the test in Harris. In the instant case,

the informant, Kenny Anderson, had already been con-

victed of burglary of the slot machines. Therefore, double

jeopardy attaches and the Defendant may not be retried.

Under the circumstances of the present case, it must be

asked, How reliable could Kenny Anderson be?” If at-

tention is directed to the character make-up of typical in-

formants, they are usually criminals, drug addicts, even

pathological liars. These people, obviously, give informa-

tion for reasons other than the “call of civic duty.” The

motivating factors behind why an informant gives informa-

tion include offers of immunity or sentence reduction in

exchange for cooperation, as well as motives such as re-

venge, or the hope of eliminating crimina] competition.

12

Kenny Anderson was serving time for the burglary of

the stolen slot machines. In addition, the facts state he was

a user of various kinds and amounts of drugs. Finally,

Anderson was an untested source of information. The in-

formant, in the instant case, has not demonstrated any

history of prior dealing with the DEA Agents nor has he

established his reputation as a truthspeaker. Therefore,

his reliability is highly doubtful.

Additionally, the arresting officers failed to corroborate

the information supplied by Anderson. Under Spinelli, the

Court concluded that the corroboration of the informant’s

tips—police surveillance showing that Spinelli had access

to the apartment which contained the phones from which

Spinelli was taking bets—was insufficient to overcome the

failure to satisfy directly either of the two prongs of

Aguilar. The Court went on to state:

“This corroboration cannot by itself be said to sup-

port both the inference that the informer was gen-

erally trustworthy and that he had made his charge

against Spinelli on the basis of information obtained

in a reliable way.” At 417.

The observations made by the DEA Agents in Las Vegas,

as well as Reno, were not of themselves so highly sus-

picious as to justify making an arrest based on Anderson’s

information. See also: Whiteley v. Warden, 401 U.S. 560,

28 L.Ed.2d 306, 91 S.Ct. 1031 (1971).

Assuming arguendo hat the Court finds that the infor-

mation supplied by Anderson to the DEA Agents meets

the requirement of Aguilar and Spinelli, Petitioner wishes

to draw the attention of this Court to the age of

Anderson’s information.

13

The affidavit, signed by the DEA Agent, was based on

information almost five months old. Most striking about

the evidence disclosed in the affidavit is the lapse of time

between wher the informant obtained the information and

the application for the search warrant.

In the leading case of Sgro v. United States, 287 U.S.

210, 53 S.Ct. 140 (1932), Chief Justice Hughes stated very

succinctly :

„. .. The proceeding by search warrant is a drastic

one. Its abuse led to the adoption of the Fourth

Amendment, and this, together with legislation regulat-

ing the process, should be liberally construed in favor

of the individual. [Citing cases.. While the statute

does not fix the time within which proof of probable

cause must be taken by the judge or commissioner, it

is manifest that the proof must be of facts so closely

related to the time of the issue of the warrant as to

justify a finding of probable cause at that time. Note 9,

at 210.” {Emphasis added.]

In United States v. Neal, 500 F.2d 305 (10th Cir. 1974),

a member of an auto theft ring described his activities to

an F. B. I. agent, said activities conducted from November

1970 to August 1971. The Agent’s affidavit in support of his

search warrant application was not executed until October

1971, some three months subsequent to the informant’s

participation in the auto theft ring.

The Tenth Circuit affirmed the District Court’s suppres-

sion of the evidence produced by the search. “We are con-

vinced,” said the Court, “that the remoteness of the infor-

mation relied upon is such that it will not support the

issuance of a valid warrant. The Fourth Amendment con-

14

templates that probable cause for the issuance of a search

warrant must exist at the time the search is sought to be

made. Probable cause existing some time in the past will

not suffice unless circumstances exist from which it may

be inferred that the grounds continued to the time the affi-

davit was filed.” (500 F. 2d at 309.)

It is submitted that an affidavit that is silent as to dates

and without any specific facts lending a sense of imme-

diacy to its issuance other than a bare allegation of the

present commission of crime is inadequate to establish the

timeliness required for issuance of a search warrant.

In the present case, to permit a finding of probable cause

from the stale conclusions and hunches provided by the

informant would require a magistrate to build inference

upon inference so as to establish a basis for his belief that

probable cause exists.

WHETHER PETITIONER’S WARRANTLESS ARREST,

BASED ON INFORMATION FROM AN UNTESTED

SOURCE, MEETS THE REQUISITE REQUIREMENT

FOR PROBABLE CAUSE ESTABLISHED BY THE

UNITED STATES SUPREME COURT IN AGUILAR

v. TEXAS

The information provided by the informant, Kenny

Anderson, in the instant case, led to the arrest of the Peti-

tioner. As stated above in Part I, the information which

led to the arrest of the Petitioner did not meet the stringent

criteria established in Aguilar and Spinelli. Therefore, the

Agents lacked the probable cause necessary to arrest the

Petitioner.

15

In Silverthorne Lumber Co. v. United States, 251 U.S.

385, 40 S.Ct. 182, 64 L.Ed, 319 (1920), this Court found

that evidence unlawfully seized by the Government cannot

be used against the Defendant.

The United States Supreme Court has been consistent

in their rulings regarding the use of illegally cbtained

evidence to establish probable cause for the arrest as well

as seizure of individual’s property. The landmark case of

Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407,

9 L.Ed.2d 441 (1963), made it clear that the exclusionary

rule may not be circumvented by the indirect use of illegally

obtained evidence. Therefore, applying the rationale of

Wong Sun to the present case, all “fruits of the poisonous

tree” must be disregarded and excluded from providing

the requisite evidence to establish probable cause. In the

present case, without the tainted evidence supplied by the

informant, the justification to arrest as well as subse-

quently search Petitioner’s vehicle was nonexistent.

The information relied upon for the warrantless arrest

was the same as that relied upon for the search warrant.

The information suffers from the same defects of vague-

ness, unreliability of source and staleness f information.

The DEA Agents were unable to provide even a hint as

to why they believed a narcotics transaction was taking

place. The Agents repeatedly testified that they saw noth-

ing suspicious regarding the transaction between the three

Defendants in the parking lot of the service station.

Additionally, the cocaine found on the person of Defend-

ant Brown in no way provides probable cause to arrest

Defendant Lee and to seize the automobile he was driving.

16

Mere presence is insufficient to prove possession; Williams

v. United States, 361 F.2d 280 (5th Cir. 1966); United

States v. Lopez-Ortiz, 492 F.2d 109 (5th Cir. 1974). It is

insufficient to prove any inchoate crime in connection there-

with. Once the slot machines were confiscated from the

Chevrolet Blazer, the Agents had no reason to believe that

the Cadillac driven by Petitioner contained any contraband.

WHETHER THE COURT OF APPEALS ERRED IN AD-

MITTING THE ORAL STATEMENT GIVEN BY

PETITIONER SUBSEQUENT TO HIS ARREST IN DI-

RECT CONTRAVENTION OF MIRANDA V. ARIZONA

Following his arrest, the Defendant was interrogated in

violation of Miranda v. Arizona, 394 U.S. 436, 86 S.Ct. 1602,

16 L.Ed.2d 694 (1966). For a complete understanding of

the issues presented, a more detailed recitation of the

facts is required.

Defendant Lee and Co-Defendants Brown and O’Brien

were arrested collectively at Sierra Sid’s Truck Stop in

Sparks, Nevada, by Agents of the DEA. Agent Cameron

read them their Miranda rights from a preprinted card

immediately thereafter :

“T read the card to all three individuals. They were

gathered in a group. I read the card to all three indi-

viduals. Each individual understood what I read from

the card, and one of the individuals—I don’t recall

who—stated they didn’t wish to make a statement.”

[Emphasis added.]

Cameron then testified that Defendant Lee, in particular,

acknowledged that he under his Miranda rights, and was

17

then asked if he could recall which of the three men indi-

cated his desire to remain silent. Agent Cameron’s testi-

mony in response was:

don't recall who stated that (that he would like to

have a lawyer before questioning]. I recall as I fin-

ished the rights one of the individuals stated they

wanted to talk to a lawyer before they said anything.

J said, That's fine,’ and they were transported [to the

Sparks Police Department]. [Emphasis added.]

On cross-examination, Defendant Lee’s counsel at-

tempted to discover the identity of the one man who spoke

up:

“Mr. Semenza: Which one?

“Agent Cameron: I don’t remember.

“Mr. Semenza: Possible it was more than one?

“Agent Cameron: It was more than one, because I

only remember one person saying it.” {Emphasis

added.]

This last response is curious at best, but it is at least

clear that the three men were advised of their rights ecllec-

tively, and at least one explicitly declined to speak. At this

point, it was apparently assumed by the Agents that one

spoke for all, because the Defendants were immediately

transported to the police station.

The Petitioner was re-Mirandized while in the Sparks

County Jail; however, the trial judge held that the second

Miranda warning was defective in that it failed to warn of

the possibility of statements being used against the De-

fendants in court. Erroneously, the trial judge held that

the first Miranda warning was sufficient and that Petitioner

18

Lee had waived his rights, thereby rendering any state-

ments made by him to be admissible.

It appears that the trial court, as well as the Court of

Appeals, applied an erroneous standard for determining

whether tue Petitioner had made a voluntary and knowing

relinquishment of his right to remain silent. There are a

long line of cases which make it elear that a knowing and

voluntary relinquishment of abandonment of a right in

each case depends upon the particular facts and eireum-

stances surrounding that case, including the background,

experience and conduct of the accused.” Johnson v. Zerbst,

304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed.2d 1461

(1938); Faretta v. California, 422 U.S. 806, 835, 95 S.Ct.

2525, 2541, 45 L.Ed.2d 562 (1975).

It would appear that in the present case, when one of the

Defendants, who was unknown to the Agents, requested an

attorney, all questioning should have ceased until an at-

torney was present. Upon further questioning at the

Sparks Jail, Petitioner did not knowingly or voluntarily

waive his rights to remain sileut.

In denying Petitioner’s Motion to Suppress, both the trial

court and the Court of Appeals found the admission to

have been voluntary without separately focusing on

whether Petitioner had knowingly and intelligently relin-

quisned his right to counsel. Edwards v. Arizona, ...... US.

ae , 101 S.Ct. 1880 (1980), the most recent articulation of

Miranda applies directly to the facts of the instant case.

This Court, in Edwards focused on the voluntariness of

Edwards’ admission. The majority opinion held “when

19

an accused has invoked his right to have counsel present

during custodial interrogation, a valid waiver of that right

cannot be established by showing only that he responded

to further police-initiated custodial interrogation even if

he has been advised of his rights.” In the instant case, it

would appear that although the individual who requested

an attorney upon arrest was unidentified, the fact that one

requested counsel should be imputed to the other individ-

uals. If such is the case, it is axiomatic that once right to

counsel has been invoked, after Miranda warnings are

given, a mere resumption of questioning at the Sparks

Jail does not establish a valid waiver per Edwards. See

Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d

313 (1975); and Rhode Island v. Innis, 446 U.S. 291, 298,

100 S.Ct. 1682, 1688, 64 L.Ed.2d 297 (1980). Therefore,

from the above-cited cases it stands to reason that a re-

interrogation of the Petitioner without the benefit of re-

quested counsel is clearly inconsistent with Miranda and

does not amount to a valid waiver. Therefore, the incrim-

inating statements made by the Petitioner are inadmissible.

In addition, the Court of Appeals erroneously relied

on Fare v. Michael C., 442 U.S. 707, 61 L.Ed.2d 197, 99

S.Ct. 2560 (1979), in finding that the Petitioner had voi-

untarily relinquished his right to counsel. The holding in

Fare is totally inapposite to the facts of the instant case.

Fare was denied permission to see his probation officer,

not an attorney. More importantly, once denied his right

to see his probation officer, Fare expressly waived his

right to an attorney before he incriminated himself.

The Court held:

“Moreover, after his request to see his probation offi-

cer had been denied, and after the police officer once

more had explained his rights to him, respondent

clearly expressed his willingness to waive his rights

and continue the interrogation .. . There was no in-

dication that he was of insufficient intelligence to

understand the rights he was waiving, or what the

consequences of that waiver would be” At 727.

Therefore, it would appear from the language of the

Edwards decision last term, as well as the inapplicability

of the Fare decision to the case at hand, Petitioner’s in-

criminating statements were clearly violated, per the hold-

ing in Miranda v. Arizona, supra.

The statements elicited from Petitioner Lee are damag-

ing in content. While at the Sparks Jail, Lee was informed

that if he cooperated with the Agents, his cooperation

would be passed on to the judge. Lee responded:

“You must want to get me killed. Besides getting me

killed, my wife wouldn’t live with me, because she

wouldn't want to live with a snitch. .. . I'd rather do

my time than take a chance like that. . I was out

of the business last week, and I was talked into getting

involved for this last load.”

It is apparent from the content of the statements by

Petitioner Lee that he incriminated himself before further

questioning was cut off. The statements elicited at the

Sparks Jail cannot be used against the Petitioner. The

Government has failed to meet its burden of demonstrat-

21

ing that the statements were in conformity with the Mir-

anda decision. In addition, there is no showing that Peti-

tioner made a clear, knowing, and intelligent waiver of

his constitutional rights against self-incrimination.

CONCLUSION

In order for an arrest and search to be viable under the

dictates of the Fourth Amendment, it is incumbent upon

police officers to rely on credible and detailed information.

In the instant case, the scanty set of facts provided by

a clearly unreliable source, are not sufficient to support

the constitutional requirement needed to establish prob-

able cause. The Court must keep in mind the overwhelm-

ing case law supporting Petitioner’s contention which was

disregarded on appeal by the Ninth Circuit.

The claim that Fetitioner's incriminating statements

were voluntarily waived was in contravention of Edwards

v. Arizona.

It is incumbent upon the Ninth Circuit to take heed of

the Edwards case. Apparently for reasons unknown, the

Ninth Circuit chose to ignore Edwards, It is requested that

in light of the Edwards holding, as well as the inapplica-

bility of the Fare case, this Court take a thorough and

searching look at the case law cited.

Review of the above-mentioned issues is paramount to

a fair analysis of this case. Each of the substantive issues

involved herein has not been properly addressed on appeal.

Failure to review the Ninth Circuit’s decision will mean

that Petitioner’s conviction will be based on insufficient

evidence clearly unsupported by the overwhelming ma-

jority of case law.

Respectfully submitted this 19th day of January, 1982.

Lawrence J. SEMENZA

Counsel for Petitioner

Clifford Doyle Lee

(Appendices follow)