Reply Brief — Fini v. United States

[Supreme Court, US |

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No. 90-1952 | 25 19

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In the

Supreme Court of the United States

OCTOBER TERM, 1991

ALAN W. FINI,

PETITIONER,

Vv.

UNITED STATES OF AMERICA,

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

Petitioner’s Reply to

Respondent’s Brief in Opposition

WILLIAM C. NEWMAN

Counsel of Record

RICHARD L. GOLDMAN

LESSER, NEWMAN, SOUWEINE

& NASSER,

39 Main Street

Northampton, Massachusetts 01060

(413) 584-7331

September 25, 1991

BATEMAN & SLADE, INC BOSTON, MASSACHUSETTS

Table of Contents.

Table of Authorities Cited

Statement

Argument

Conclusion

Table of Authorities Cited.

CASES.

Davis v. Mississippi, 394 U.S. 721 (1969)

Elkins v. United States, 364 U.S. 206 (1960)

Johnson v. United States, 333 U.S. 10 (1948)

Ker v. California, 374 U.S. 23 (1963)

Miller v. United States, 357 U.S. 301 (1958)

United States v. DiRe, 332 U.S. 581 (1948)

United States v. Watson, 423 U.S. 411 (1976)

CONSTITUTIONAL PROVISIONS.

United States Constitution

Fourth Amendment

No

NO WN NY NY W W

No. 90-1952

In the

Supreme Court of the United States

OCTOBER TERM, 1991

ALAN W. FINI,

PETITIONER,

vs

UNITED STATES OF AMERICA,

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

Petitioner’s Reply to

Respondent’s Brief in Opposition

Statement.

At trial the central evidence against Alan Fini consisted of

tape recordings of conversations between Mr. Fini and a state

government informant, Gary Forish. The conversations were

seized by a warrantless wiretap investigation initiated, planned,

conducted and administered exclusively by the state police.

State police Corporal Thomas Guilmet directed the investiga-

tion.

2

The state police procedure for taping the conversations was

as follows:

Guilmet and other state troopers first would brief Forish

before he went to meet with Fini. The state police then would

search him, his vehicle, and his person. Guilmet next would

wire Forish with the transmitter, tape it to his body, test the

equipment, and then send him on his way. The state police

would listen and record the conversations, being on one end

of the voice-activated tape recorder. Forish would meet with

Fini and then return to the state police’s pre-arranged location.

Guilmet later would listen to the tapes and review the trans-

cripts, which his office prepared.

There was no federal involvement whatsoever in the plan-

ning or execution of the warrantless seizure of Mr. Fini’s

conversations, and no federal drug enforcement officer testified

at Mr. Fini’s trial. All the law enforcement evidence connecting

Alan Fini to drugs and drug sales came from state law enforce-

ment officers.' At trial Guilmet authenticated the tapes.

Argument.

In United States v. DiRe, 332 U.S. 581, 589 (1948), the

court held that, in the absence of an applicable federal statute,

the validity of a warrantless arrest is determined by the law

of the state where the arrest takes place. The Supreme Court

consistently has affirmed the vitality of DiRe. United States

v. Watson, 423 U.S. 411, 428 n.8 (1976); Ker v. California,

374 U.S. 23, 37-41 (1963); Miller v. United States, 357 U.S.

301, 305-306 (1958); Johnson v. United States, 333 U.S. 10,

15 n.5 (1948).

‘The only federal law enforcement officers to testify at the trial were from

the Internal Revenue Service. They testified about the tax evasion counts

brought against Mr. Fini.

3

An arrest is a type of Fourth Amendment seizure. Davis v.

Mississippi, 394 U.S. 721, 726-727 (1969) (“Nothing is more

clear than that the Fourth Amendment was meant to prevent

wholesale intrusions upon the personal security of our

citizenry, whether these intrusions be termed ‘arrests’ or ‘inves-

tigat{ions]’.”) There is no analytical distinction between a

seizure in the form of an arrest and a seizure in the form of

electronic surveillance.

DiRe applies here. No federal statute governs the admissibil-

ity in a federal trial of evidence obtained from a state-conducted

warrantless wiretap investigation.

The tension that exists between United States v. DiRe (state

law governs legality of an arrest) and Elkins v. United States,

364 U.S. 206 (1960) (federal law governs legality of a search

to the extent that state officials cannot hand over to federal

authorities on a silver platter evidence seized in violation of

federal law), is put into sharp relief by this case. The rationale

of DiRe applies to this case — a warrantless electronic seizure,

conducted by state law enforcement officials, which is unlawful

under both constitutional provisions and state statutory law.

In addition to the Fourth Amendment, principles of comity

and federalism are frustrated when, as here, federal courts

hold state officers blameless after state courts have condemned

that precise conduct. Likewise damaged is the state’s interest

in insuring fundamental rights guaranteed by the state’s con-

stitution. When state law can be rendered nugatory at whim

by federal officials, the federal government is no longer one

of limited, designated powers. If the government’s position

prevails here, it means, as a practical matter, that all police

powers are ultimately reserved not to the states, but to the

federal government.

4

Conclusion.

For all the foregoing reasons and those stated in our principal

petition, this Honorable Court should grant Alan W. Fini’s

petition for certiorari and order full briefing and argument.

Respectfully submitted,

WILLIAM C. NEWMAN

Counsel of Record

RICHARD L. GOLDMAN

LESSER, NEWMAN, SOUWEINE

& NASSER,

39 Main Street

Northampton, Massachusetts 01060

(413) 584-7331

September 25, 1991