Petition — Katzman v. Pennsylvania

82-407

IN THZ

SUPREME COURT OF THE UNITED

No:

October Term, 1982

RICHARD N. KATZMAN,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPERIOR COURT OF PENNSYLVANIA

RICHARD H. MARTIN, ESQ.

BASKIN AND SEARS, P.C.

10th Floor, Frick Bldg.

Pittsburgh, PA 15219

(412) 562-8727

Attorneys for Petitioner,

Richard N. Katzman

THE QUESTIONS PRESENTED

FOR REVIEW

Did the court below err in refusing to

grant a new trial to defendant Katzman where

the only evidence supporting his conviction

was seized from his person upon a public

street under color of a search warrant that

described, in its affidavit of probable cause,

only a basis for a search of premises believed

to be under his control but contained no basis

upon which the issuing authority could con-

clude that contraband or evidence would be

found upon the person of Katzman, and where

the record is devoid of any evidence that

would otherwise support the search of Katzman

upon a public street?

(i)

BUM Soci veccccecccsvceses case cessbe ii

TABLE OF CITATIONS ........-eeeeeeees iii

GEER LOS BEI ces ccne ccc cencecccnvess 1

SUREISDICTION cscs cc cceccsvcccsccess 2

STATUTES INVOLVED .........ceeeeevcees 2

STATEMENT OF THE CASE .........--eeees 2

REASONS FOR GRANTING THE WRIT ........ 6

COMCEMIS ION ccc cece cccccccwesncceese 17

APPENDIX A-1, Juc~*ent Order,

Superior Court of Pennsylvania ...... 18

APPENDIX A-2, Opinion, Honorable

Ralph J.. Cappy, Court of Common

Pleas, Allegheny County, Pennsyl-

os RON 068 -0n sd RERE we RETO Ono e ee 19

APPENDIX B-1, U.S.C.A. Const.

Bs: ME own <6R Gb Key b VON 06 R00 He ed es 36

APPENDIX B-2, U.S.C.A. Const.

sO 6 nb snk cated anew nt bees csaswe 37

APPENDIX C, Order, Suprem. Court

Se TOURER ois Sisiwd eine + eee 0 08 6 bbe 41

TABLE OF CITATIONS

United States v. Bailey, 458

F.24 408 (Sth Cir. 180) Sy Sa ie 13

United States v. Fl an, 423

F.2d 745 (5th Cir. 18705 AP SESE 13

United States v. Gramlich, 551

F.2d 1359 (5th Cir. 1977) ......... 12

United States v. Rettig, 589

F.2¢0 418 (Sth Cir. 1878) BS. oe kes 6 12

United States v. Ventresca,

Ue is bn 4 0 He Oh Oe 16

United States v. Whitlow, 339

F.20 975 (7th Cir. 1964) .......... 13

Whiteley v. Warden, 401 U.S.

: Ct. ES Ree 12

(iii)

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1982

No:

RICHARD N. KATZMAN,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPERIOR COURT OF PENNSYLVANIA

Petitioner prays that a writ of

certiorari issue to review the judgment of

the Superior Court of Pennsylvania, entered

in the above-entitled case on February 5,

1922.

Opinions Below

The judgment order of the Superior

Court of Pennsylvania, filed on February 5,

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1982, is not yet reported and is reprinted

in Appendix A along with the opinion of the

Honorable Ralph J. Cappy, Court of Common

Pleas of Allegheny County, Pennsylvania,

upon which the Superior Court of Pennsylvania

relies.

Jurisdiction

The judgment of the Superior Court of

Pennsylvania was entered on February 5, 1982.

On May 28, 1982, the Supreme Court of Pennsyl-

vania entered an Order Denying Petitioner's

Petition for Allowance of Appeal. The juris-

diction of this Court is invoked under 28

U.S.C. § 1257(3).

Statutes Involved

The Fourth and Fourteenth Amendments to

the Constitution of the United States are

involved herein and set forth in Appendix B,

infra.

Statement of the Case

This criminal prosecution was instituted

by the arrest of the petitioner, Richard

Katzman (hereinafter "Katzman"), on October

21, 1979, by various troopers of the Pennsyl-

vania State Police. The arrest was preceded

by the attempt by said police officers to

execute a seurch warrant for the person of

Katzman. Subsequent to the execution of the

search warrant for the person of Katzman and

his ensuing arrest, said police officers

executed a search warrant for certain pre-

mises located at 203 Roup Street, Pittsburgh,

Pennsylvania.

The search warrant for the person of

Katzman was issued on October 21, 1979, on

the basis of an affidavit of probable cause

drafted and executed by Trooper Charles G.

Wilker and sworn before the issuing authority,

Andrew Kurta. The affidavit of probable

cause utilized in support of the search

warrant for Katzman's person is identical in

all respects to that utilized in support of

the search warrant issued for the premises

located at 203 Roup Street, Pittsburgh,

Pennsylvania.

The thrust of the subject affidavit

of probable cause is that Katzman was con-

ducting a telephone bookmaking business at

203 Roup Street, Pittsburgh, Pennsylvania.

Said affidavit of probable cause states

that, beginning on October 13, 1979 and con-

tinuing on October 14, 19, 20 and 21, 1979,

surveillance was maintained at Katzman's

residence and at 203 Roup Street, during

which time Katzman was observed walking on

the street and driving his car from his

residence =o the Roup Street location. The

affidavit of probable cause further states

that an informant placed bets with Katzman

by telephone during the time Katzman was

known to be inside the premises on Roup

Street.

On October 21, 1979, after having

obtained the search warvants for the person

.

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of Katzman and for the premises located at

203 Roup Street, the troopers. dressed in

street clothes, stationed themselves across

the street from the Roup Street premises and

waited for Katzman to exit. At approximately

4:40 PM, Katzman exited the Roup Street pre-

mises carrying a folded newspaper under his

arm. Nothing unusual was, observed by the

troopers relative to the newspaper which

Katzman carried.

Upon observing Katzman, the troopers

announced that they were state police. There-

upon, Katzman began to run, with the troopers

in pursuit, until he tripped over a fence

and was captured in the rear of property

located at 140 S. Negley Avenue. As a result

of the chase and the fact that Katzman

tripped over a fence, certain papers were

observed scattered on the ground and were

picked up by the police. After these papers

were retrieved and examined, the troopers

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determined that the papers consisted of

line sheets, sheets containing bets and owe

sheets. Thereupon, Katzman was placed under

arrest for bookmaking.

Reasons for Granting the Writ

The Superior Court, in affirming

without opinion the decision of the Court of

Common Pleas of Allegheny County, Criminal

Division, decided the question presented for

review in a manner not in accor= with the

applicable decisions of this Court and various

United States Courts of Appeals.

Katzman contends that he is entitled

to a new trial since the state police had no

legal justification for conducting a search

of his person upon the public street after

he had exited the premises located at 203

Roup Street, Pittsburgh, Pennsylvania.

Throughout the proceedings in the Courts

below, the Commonwealth has maintained that

the search of Katzman's person and subsequent

seizure of documents introduced as evidence

at his trial, over defense counsel's objec-

tion was conducted pursuant to a valid search

warrant for his person. +/

Based upon the contentions of the Conmon-

wealth and Katzman, Judge Cappy, at the

suppression hearing, correctly determined

that the issue before him was whether the

af At no time during this case has the

Commonwealth asserted that the search

was incident to a valid arrest or that,

apart from those facts stated in the

affidavit of probable cause, there was

an independent basis for conducting a

search of Katzman's person. Clearly,

the record in this case would not sup-

port such an assertion since Katzman

was not observed committing any offense

as he exited the Roup Street premises

prior to the execution of the search

warrant for his person. Since the

offense ere this case, Bookmaking,

18 P.S. § a is a -~ prmenygsouy an A

arrest was roper unless the arresting

officers chuarvet thn offense be com-

mitted in their presence. Pa.R.Crim.P.

10l(a). As the record indicates, the

police made no such observation in this

case.

search warrant for the person of Katzman

was based upon a legally sufficient showing

of probable cause, under the Fourth Amend-

ment of th. United States Constitution, as

incorporated into the Fourteenth Amendment,

and Article I, Section 8 of the Pennsylvania

Constitution, to justify the search of

Katzman on October 21, 1979. After examining

each statement of fact set forth in the

affidavit of probable cause, Judge Cappy made

the following finding:

"... there can be no doubt

that the defendant, Richard

Katzman, was involved in a

cleverly devised bookmaking

pe involvi the use

of telephone call-forwarding

apparatus, that during the

period involved herein, Katzman

pe i amr received bets by

telephone, that Katzman's prin-

ciple residence was located at

220 S. Negley Avenue, and that

on those occasions when bets

were placed with Katzman by

the informant herein, Katzman

was known to be at 203 Roup

Street."

Significantly, Judge Cappy did not conclude,

eae

as a result of his line by ‘ine analysis of

the affidavit of probable cause, that Katzman

was likely to be carrying on his person any

tangible fruits of the bookmaking operation.

Since neither the informant's statements

nor the police surveillance, as reflected

by the affidavit of probable cause, would

enable a magistrate to make a determination

that any item of contraband would be found

on Katzman's person, Judge Cappy determined

that it was reasonable to infer such fact:

“Common sense dictates but one

conclusion, that in view of the

surreptitious nature of Katzman's

operations, combined with fre-

gsc comings and goings of the

efendant from the Roup Street

location where he was unquestion-

ts

himse fe would be stretching

rea co the point of absurdit ‘

ro assume that the beta themselve: %

Fe not recorded but were nea! a

memorized and secrete. In Katzman'

lind. mphasis . ,

10

However, Judge Cappy's inference as to the

existence and location of the bookmaking

paraphernalia is based on conjecture and

surmise. Obviously, Judge Cappy could only

surmise, on the basis of the affidavit of

probable cause, that the contraband could

only have been located in the residence or

on the person. No case has suggested that

constitutional proscriptions against unrea-

sonable search and seizures were met as long

as the location of the suspected contraband

was narrowed down to one of several possi-

bilities.

' The Fourth Amendment to the United

States Constitution provides:

"The right of the people to

houses, papers; and affects,

Sd peleba, abet nes to".

violated, and no warrant shall

issue, but upon probable cause,

s rted by oat oP cae ephcl

t

the place ed, and the

rsons or idea to be seized."

fEmphasis added

yf,

,

11

This Court has recently reaffirmed

the traditional view that the Fourth Amend-

ment was designed to protect the privacy

and security of persons and, in so doing,

reiterated the principle that

“In the ordinary case ... a

search of private property must

be both reasonable and performed

pursuant to a cid Sori issued

search warrant. mere reason-

ableness of a search, assessed in

the light of pore circum-

stances, is not a substitute for

the judicial varrant required

under the Fourth Amendment.

***

By requiring that conclusions con-

cerning probable cause and the

scope of a search ‘be drawn by a

neutral and detached magistrate

instead of being judged by the

officer engaged in the often com-

petitive enterprise of ferreting

out crime,’ Johnson v. United

States, 33 U.S. 10, 14 68 S.Ct.

367, 369, 92 L.Ed. 436 (1948),

we minimize the risk of unreason-

able assertions of executive

parce: £ See McDonald v. United

States, 335 U.S. 451, 455-456, 69

S.Ct. 191, 193, 93 L:Ed. 153 (1948)."

Arkansas v. Sanders, U.3. ‘

99 S.Ct. 2586, 2589, 7590 (1979).

12

Thus, the constitutional scheme re-

quires that search warrants be issued only

after the police officer or affiant articu-

lates, in an affidavit of probable cause,

his reasons for wanting to conduct a search

and supports what is said by a sworn oath.

Thereupon, the statements in support of

probable cause are considered by a neutral

and detached magistrate. See e.g., Whiteley

v. Warden, 401 U.S. 560, 91 S.Ct. 1031 (1971).

In addition to the warrant procedures

specified above, the federal cases are

unanimous in holding that probable cause is

not established if the affidavit of probable

cause fails to establish, by the recital

of underlying facts and circumstances, that

the fruits of a crime or evidence thereof

will be found at the place to be searched.

See e.g., United States v. Rettig, 489 F.2d

418, 422-432 (9th Cir. 1978); United States

sy, Gramlich, 551 F.2d 1359, 1362 (Sth Cir. ;

ee sak

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ee Ih ge. ae ns Nee

13

1977); United States v. Bailey, 458 F.2d

408 (9th Cir. 1972); United Scates v. Flanagen,

423 F.2d 745 (5th Cir. 1970); United States v.

Whitlow, 339 F.2d 975, 980 (7th Cir. 1964).

Based upon the foregoing analysis and

authorities, it is clear that the search

warrant for the person of Katzman is legally

insufficient and requires suppression of the

items seized. First, it is obvious from a

reading of the affidavit of probable cause

that the police affiant informed the issuing

authority only that a telephone bookmaking

business wus being conducted at 203 Roup

Street. No underlying facts or circumstances

suggesting that any item of contraband or

evidence would be found on the person of

Katzman were described in the affidavit of

probable cause or presented to the issuing

authority. If anything, the affidavit of

probable cause negated that inference by

the following recitals:

ty ie

14

(1) The affidavit recites that infor-

mant's information to the police merely

indicate that bets were being placed over

the telephone, but did not state that said

bets were being recorded on rice paper or in

any other form;

(2) The affidavit recites that affiant

has known that Katzman was involved in book-

making for a period of six years and, on one

occasion was the subject of a search, but

does not state that said search revealed the

existence of rice paper, line sheets or any

other paraphernalia common to a bookmaking

business;

(3) The affidavit recites that the

police conducted surveillance of Katzman

on October 14, 19, 20 and 21, 1979, but does

not state that on any of those occasions he

was observed carrying anything on his person

such as rice paper, line sheets, owe sheets

or any other paraphernalia common to a book-

making business;

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15

(4) The affidavit, based on the afore-

said recitals, concludes that Katzman was

conducting the telephone bookmaking operation

from inside the premises at 203 Roup Street.

Applying the analysis set forth above,

the United States Court of Appeals, Sixth

Circuit, recently ordered that a fireare

be suppressed as evidence where it was seized

pursuant to a search warrant whose affidavit

of probable cause failed to specify any

information relating to the existence or

location of the firearm. In its opinion on

rehearing, the Court of Appeals states:

“In our previous opinion we

found that the warrant authorizing

a search for firearms was valid.

We were under the impression that

the affidavit attached to the

search warrant provided for prob-

able cause for the search for

the firearm. Upon rehearing and

review of this question, we now

find that the affidavit upon

which the warrant was granted

made no mention of any facts

about firearms. The affidavit

cannot be read as attempting to

provide probable cause for the

16

search for a firearm. In

addition, there is no indi-

cation from the record or the

riers on rehear tt

officers see the warrant

Brought any information < con=

cern ne existence or location

of a rearm to the attention

of the istrate who issued

the warrant. The lack Of p rob-

able cause in the affidavit

vitiates the search and seizure

for the firearm unless the

search comes within an excep-

tion to the warrant requirement.”

United spares v. Andrews, 612 F.

7. hasis

rains + I

Under the foregoing circumstances, the

issuing authority, even if applying the

common sense approach of United States v.

Ventresca, 380 U.S. 102, 198 (1965), could

not make a finding that a search of Katzman's

person would yield anything whatsoever. For

him to have done so was improper under the

«cited cases and requires suppression of said

evidence.

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lusion

- Based on the foregoing and the record

3 as a whole, it is respectfully requested

7 that a Writ of Certiorari to the Superior

: Court of Pennsylvania be issued for the

; special and important reasons stated herein.

Respectfully submitted,

RICHARD H. MARTIN

BASKIN AND SEARS, P.C. |

| Pittsburgh, PA 15219"

(412) 562-8727

| )

:

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