# Petition — Katzman v. Pennsylvania > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0749%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1982 - **Citation:** 459 U.S. 971 ## Text 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, ) . ‘ .) 5° ‘ $ om wi - ‘ | : ‘309 . >) aaa ‘oe. Ie Pe ew TO 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 . Seah 7 ~~ . ae npn. 6 Rs ad - x 5 A mae. 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 —— > - . % ¥ ale. a. -* & 7 Pe 6 ai + : 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 =) 42 a , = ¥ ’) 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; the i : ot tis 7 * #2 . : ae La, Aes Aree fe Aw ae. | wt il La OW i ae SS A UR TS 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. it eee OS ie. ph. we ee iy * id nce he SS Bae Ve 2°64" as. J : ee ey, oe EE OP ee aes es et ee” ey Bc ea ASS 7 - / ee * * + 17 q 7 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 | ) : " - --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0749%3A1. Public record. Not legal advice.