Petitioners Reply Brief — Blumenthal v. Illinois

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fica - Supreme Court, US

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MAR 21 |984

NO. 83-1014

om ee ee ALEXANDER Le STEVAS.

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IN THE

SUPREME COURT OF THE UNITED STATES OF AMERICA

OCTOBER TERM, 1983

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MARK BLUMENTHAL,

Petitioner,

PEOPLE OF THE STATE OF ILLINOIS

Respondent.

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ON PETITION FOR A WRIT OF CERTIORARI ON

APPEAL FROM THE SUPREME COURT

OF ILLINOIS

re er rr ee ee me ee

HAROLD M. JENNINGS

107 North East Street

Bloomington, Illinois 61701

(309) 827-5425

Attorney for Petitioner

JOHN NAYLOR

Of Counsel

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2

TABLE OF CONTENTS

PAGE

Table of Authorities 2

Statement of Facts 4

Reasons for Granting the Petition 7

Conclusion 20

TABLE OF AUTHORITIES

l. Byers v. United States, 273 U.S. 28, 47

set 248. bisa

2. Chambers v. Maroney, 399 U.S. 42, 26 L.Ed.

2a 4 , - Se S.

3. Chimel v. ses 395 U.8. 752, 89

S.Ct. 2034, (1969).

4. Coolidge v. New Hampshire, 403 U.S. 443, 91

ce Ore (1971)

5. Davis v. Mississippi, 394 U.S. 723 89 S.Ct.

T3594 (1969).

6. Harris v. State, 452 U.S. 901, 101 S.Ct.

3025, 65 L.Ed. 34 402.

7. Harrison v. United States, 392 U.S. 219, 20

L.&d. 24 1047, 88 S.Ct, 32008, (1968).

8. Henry v. United States, 361 U.S. 98, 80

*. Se *

9. Johnson v. United States, 333 U.S. 10, 68

S.Ct. 367, (19548).

10. Ma v. Ohio, 367 U.S. 643, 81 S.Ct. 1684

HEY oe2

3

se a als v. New York, 445 U.S. 573, 100 S.Ct.

12. People v. Abney, 81 I11.2d 159, 407 N.E. 24d

TS MOK LUPE

13. People v. Eichelberger, 91 Ill. 2d 359, 438

N.E. 20 140, (1582).

;

14. People v. Peter, 55 Ill. 2d 43, 303 N.E. 2d

15. People v. Wilson, 60 Ill. 2d 235, 326 N.E.

, $75).

16. Schmerber v. California, 384 U.S. 757, 86

B.ce. 1826, (1966).

17. a v. United States, 102 S.Ct. 1642,

, 451 U.S. 216.

18. United States v. DI RE, 332 U.S. 581, 68

Dect. aaae

19. United States v. Rosselli, 506 F.2d 627,

Seventh Circuit, (1927).

20. United States v. Rubin, 474 F.2d 262, 3rd

Circuit, (1973).

21. Vale v. Louisiana, 399 U.S. 30, 90 S.Ct.

T9665 (1570).

22. Wong Sun v. United States, 371 U.S. 473, 83

S.Ct. 403 (1563).

Statutes

United States Constitution, 0.8 .CeMee

Amendments IV, V, VI, XIV.

Illinois Revised Statutes of 1981, Chapter

38, Section 107-2.

4

Illinois Revised Statutes of 1981, Chapter

38, Section 114-12.

REPLY BRIEF TO THE BRIEF FOR RESPONDENT

IN OPPOSITION

To the Chief Justice and Associate Justices

of the Supreme Court of the United States:

The Petitioner asks this Court permission to

file this Reply Brief to respond to

Respondent's novel contention in its Brief in

Opposition that the neutral magistrate who

reviewed the search warrant application, was

also reviewing the probable cause issue for

Petitioner's arrest, thus satisfying Payton's

requirements for arrest warrants in routine

felony arrests. Such was not the case, nor was

this issue argued below.

STATEMENT OF FACTS

Petitioner wishes to rely upon his submitted

statement of the case, found on page 13 of the

Petition for Writ of Certiorari.

5

However, Petitioner would also like to take

exception to the intemperate choice of words in

Respondent's Brief in Opposition and _ the

mis-description of the case contained therein.

Petitioner concedes that as in most criminal

cases and in particular the instant case, a

personal and circumstantial tragedy did occur

in this cause. Defendant regrets the

circumstances of the offense; however, the

precipitating events were not completely within

Defendant's control and Petitioner-Defendant

urges this Court to keep in mind that Defendant

was found not guilty by a jury on the trial of

this cause as to the primary offense of

aggravated arson. The jury in returning a

verdict of not guilty apparently agreed with

the Defendant's evidence and contention that a

retaliatory prank precipitated by another

student's attack upon Defendant's girl friend,

now wife, was the precipitator of the events in

question which caused a fire and damage in the

college dorm in question. Petitioner has never

6

attempted to excuse or make light of what he,

himself has described as a stupid, immature and

reckless act in response to an attack against

his financee. The Respondent states that use

of the Appellate Court's unsuitable and

intemperate description of this case is in fact

a mis-description and in the judgment of

Petitioner in derogation of this Court's Rule

34(.6) by its repetition in the State's Brief

and Opposition.

7

REASONS FOR GRANTING THE PETITION

FOR CERTIORARI

Because of the unique timing and sequential

order of the searches, arrest, and eventual

Trial Court suppression of part of the police

searches in this case, the constitutional

issues contested herein need or deserve to be

reviewed by this Supreme Court, contrary to

Respondent's contention in its Brief of

Opposition. Petitioner has not found any

previously decided cases with the exact search,

arrest, and suppressi~n order of events as

occurred in this cause. Hence a novel issue

for review may be present here which this court

may wish to exercise its discretion to decide

as per Supreme Court Rule 17(.1), and Rule

17(.1)(c).

Respondent's Brief in Opposition to

Petitioner's Writ for Certiorari, adequately

summarizes Petitioner's basic constitutional

contentions on Page 6 and 7 of Respondent's

Brief. That contention is that the

Petitioner-Defendant's basic constitutional

8

rights under the 4th, 5th, 6th, and 14th

Amendments were violated when quashed,

suppressed evidence was used by the police to

base its arrest of defendant upon. Such an

illegal arrest should have been quashed and the

resulting evidence flowing unattenuatedly from

that arrest also suppressed and returned to

Defendant as a matter of law under the line of

cases flowing from Wong Sun v. U.S., 371 U.S.

473, 83 S.Ct. 403 (1963); Mapp v. Ohio, 367

U.S. 643, 81 S.Ct. 1684 (1961); Davis v.

Mississippi, 394 U.S.723, 89 S.Ct. 1394 (1969);

Byers v. U.S., 273 U.S. 28, 47 S.Ct. 248; U.S.

v. DI RE, 332 U.S. 581, 68 S.Ct. 222.

The Trial Court at the Pre-Trial Quash and

Suppression Hearing, granted Defendant's Motion

to Suppress Evidence Illegally Seized from

Defendant's dorm room, but erroneously refused

to quash the immediately ensuing arrest of

Defendant in his dorm room, which arrest was

clinched by evidence illegally observed or

seized in that dorm room by the Illinois State

9

University police. See pages 65, 66, and 67 of

Petitioner's Writ of Certiorari.

The convinction of Defendant based on

evidence seized from Defendant's person during

this illegal arrest, namely his fingerprints,

which the police previously had no record of, is

contrary. to the rules of constitutional law as

they have evolved from the previously cited

cases of Wong Sun, Mapp, Davis, Byers, and DI

RE. This conviction of Defendant based upon

unconstitutionally seized evidence by the

Illinois courts is in direct conflict with the

aforementioned decisions of the U.S. Supreme

Court, and deserves review by Defendant's

Petition for Certiorari under this Court's rule

17(.1)(c) also.

This Court's ruling in Payton v. New York,

445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed. 2d 639

(1980), was also violated by the arresting

Illinois State University police when they

entered Petitioner's dorm room without a

warrant for his arrest, since there were no

10

no exigent circumstances present, necessitating

such a warrantless entry. The 1I.S.U. police

had previously “secured” or taxen over

Petitioner's dorm room without a warrant or

probable cause at 7 a.m. that morning, refusing

entry to Petitioner and everyone else. This

type of immobilization or securing of

Defendant's dorm room has been called a seizure

by previous Illinois and United Sates Supreme

Court decisions. People v. Peter, 55 Ill. 2d

443, 303 N.E. 2d 398 (1973); Chambers v.

Maroney, 399 U.S. 42, 26 L.Ed. 2d 419, 90 S.Ct.

1975.

If this warrantless police lock-in,

lock-out, was not a constitutionally

unreasonable search or seizure in itself, such

an immobilization of Petitioner's dorm room was

at least clear proof that no exigent

circumstancs were present in this cause,

because any evidence that might have been

destroyed or removed from Petitioner's room was

effectively sealed by this police takeover.

11

Despite the recent Illinois Supreme Court

cases of People v. Abney, 81 Ill. 2d 159, 407

N.E. 24a 543. (1980), and People Vv.

Eichelberger, 91 Tll. 2d 359, 438 N.E. 2d 140

(1982), which discussed Payton's ruling and its

guiding principles extensively, the Illinois

Supreme Court in this cause denied Petitioner's

Leave to Appeal to that Court. Such denial by

the Illinois Supreme Court on October 4, 1983,

let stand the manifestly erroneous affirmance

by the Illinois Appellate Court of the Trial

Court's conviction of Petitioner therein, which

was based upon evidence illegally seized from

Defendant following his warrantless arrest in

his dorm room.

Such actions by the Illinois Courts were

clearly contrary to constitutional principles

required in arrest and search procedures by the

police since the Payton decision. Abney and

Eichelberger, op. cited, p. 168, and p. 367,

both respectively, state that the principles of

the exigent circumstances rule enunciated in

12

Payton have been judicially engrafted on our

Illinois arrest statute. Chapter 38, Section

107-2, Illinois Revised Statutes of 1981. Yet

Petitioner's warrantless arrest in his room

with no exigent circumstances present was

allowed to stand by our Illinois courts in this

cause.

Respondent's Brief in Opposition now

attempts to say that Payton's principles were

satisfied by the Illinois Appellate Court's

action in reconstructing the determination of

the amount of probable cause possessed by the

I.S.U. police at the time of Defendant's arrest

in his room at around 1 p.m., which had been

secured by the police since 7 a.m.

Respondent's Brief also misleadingly gives the

impression on pages 7, 8, and 9, now, that the

magistrate who issued the search warrants, was

also acting on an arrest warrant application,

Or that a search warrant can serve the same

purpose as an arrest warrant. Such was not the

case, in fact, nor is it in law.

13

The search warrant applicant himself, I1.S.U.

police officer Donald Knapp, testified at the

Pre-Trial Quash and Suppression Hearing, that

he did not feel he had probable cause to arrest

Petitioner until after the search of

Defendant's room, which search was later

quashed for lack of probable cause by the Trial

Court Judge. The Trial Court Judge ruled at

the Pre-Trial Hearing, timely Motioned for by

Defendant in accordance with Illinois Revised

Statutes of 1981, Chapter 38, Sec. 114-12, that

the police possessed only a “mere suspicion"

quantum of evidence prior to the police seerch

of Defendant's dorm room.

Yet, this “mere suspicion” quantum of

evidence was relied upon by the Illinois

Appellate Court to justify Defendant's arrest

as being based upon probable cause. Such a

holding by the Illinois Appellate Court is in

direct conflict with this Court's decision in

Henry v. U.S., 361 U.S. 98. 80 S.Ct. 168, which

held that an arrest with or without a warrant

14

must stand upon firmer ground than mere

suspicion. Petitioner believes that it is

incongruous and an error of law for the

Illinois Appellate Court to hold that evidence

insufficient to uphold a search warrant of

Defendant's room can later be called sufficient

to justify Petitioner's arrest, clinched on

evidence seized during this quashed search.

Byers and DI RE, op. cited, have both ruled

that an illegal search is not validated by what

it turns up. Here Defendant's arrest was not

clinched until the evidence illegally observed

in Defendant's room was observed or seized by

the 1.S.U. police, which search was later

quashed and suppressed. An illegal arrest

should not be validated by what is discovered

because of that arrest.

Steagald v. United States, 102 s.ct. 1642,

451 U.S. 216, (1981), has recently ruled that

the inconvenience of obtaining a search warrant

at the same time as an arrest warrant was not

that significant. Such a similar procedure

15

could have been followed by the Illinois State

police in this cause since all of their

investigation was done on a weekday during

court hours in the same city as the county

seat. The early morning securing of

Defendant's room by the police and_e the

continued presence of Defendant in his dorm

room area during the day while the police were

making their investigation and searches,

Clearly are important factual grounds requiring

that Payton's principles requiring arrest

warrants in such routine, non-exigent

circumstances should have been followed by the

I.S.U. police herein. See also Harris v.

State, 452 U.S. 901, 101 S.Ct. 3025, 69 L.Ed.

2a 402. In United States v. Rubin, 474 F.2d

262, 3rd Circuit, (1973), on pages 266 and 267,

Chimel v. California, 395 J.B. 752, @ &8.Ct.

2034, (1969), and Vale v. Louisiana, 399 U.S.

30, 90 §.Ct. 1969, (1970), are both discussed

to show what kind of factual circumstances

might require the police who have already

16

secured on arrest warrant, to also seek a

search warrant for the home they will be

serving their arrest warrant at. In

Petitioner's case herein, counsel for same has

found no other cases exactly like our facts

which clearly show that an arrest warrant

should also have been sought by the I1.S.U.

police at the time they applied for their

search warrants.

Rubin goes on to state, on page 268, using

this Court's delicate balancing of rights as

discussed in Schmerber v. California, 384 U.S.

757, 86 S.Ct. 1829, (1966), Johnson v. United

States, 333 U.S. 10, 68 S.Ct. 367, (1948), and

Coolidge v. New Hampshire, 403 U.S. 443, 91

S.Ct. 2022, (1971), that even the mere presence

of probable cause, which was in doubt in this

cause, does not provide the exigent

circumstances necessary to justify a search

without a warrant. Since Payton, probable

cause has not dispensed with the necessity for

arrest warrants, either, in the absence of

17

exigent circumstances, in routine felony

arrests.

Since Petitioner's dorm room had _. been

secured, sealed, and taken over completely by

the I.S.U. police at 7 a.m., the morning of the

fire and investigation, Petitioner's case

clearly fits within the boundaries of

situations described in Rubin, on pages 266,

and 268, citing Chimel and Vale, op.cited. In

Chimei, op.cited, p.395 U.S. at 768 N. 16, and

89 S.Ct. 2034, this Court stated that there was

no showing that it would have been unduly

burdensome for the police to have also obtained

a search warrant, to go along with their arrest

warrant. In Vale, 399 U.S. at 35, 90 S.Ct. at

1972, this Court stated, in suppressing the

illegally seized evidence there, that there was

lack of any evidence suggesting that it was

impracticable for the police officers to obtain

a search warrant, as well as their arrest

warrants.

18

With language such as this, Petitioner

contends that this Court has definitely ruled

that there is a difference between a search

warrant and an arrest warrant, and that one

doesn't replace the need for the other, or

serves the same purposes, as Respondent's Brief

in Opposition erroneously contends, which

contention was not made by Respondent in any

court proceedings below.

Under the rules and reasonings of the

decisions of this Court in the aforementioned

cases of Rubin, Chimel, Vale, Schmerber,

Johnson, Coolidge, and Payton, et al, op.cited,

Petitioner's arrest should have been quashed

because of the absence of an arrest warrant and

any exigent circumstances. See also United

States v. Rosselli, 506 F. 2d 627 (1974), p.

631.

Without the fingerprint evidence seized from

Defendant's person following his unlawful

arrest in his room at the conclusion of the

quashed search, the State possessed only

19

Circumstantial evidence, which did not link

Defendant personally to the crime being

investigated. Hence the fingerprints and

Defendant's testimony at trial in his own

defense were illegally tainted because they

came, and flowed solely and unattenuatedly

from, the exploitation of Defendant's arrest,

which should have been quashed. Harrison v.

U.S., 392 U.S. 219, 20 L.Ed. 2d 1047, 88 S.Ct.

2008 (1968). No clear and convincing evidence

was produced by the State at trial to prove

that Defendant's fingerprints and testimony

came from an independent source either, as

required by Illinois law. People v. Wilson, 60

Ill. 2d 235, 326 N.E. 2d 378 (1975).

20

CONCLUSION

Wherefore, Petitioner asks this Court to

grant his Petition for Certiorari for the

foregoing reasons.

Respectfully submitted,

HAROLD M. JENNINGS

107 North East Street

Bloomington, Illinois 61701

(309) 827-5425

Counsel for Petitioner