Petition for Writ of Certiorari — Pugh v. Florida

rc ALEXANDER L STEVAS,

a OLERK

95-141

IN THE SUPREME COURT OF THE UNITED STATES

TERM, 1985

No.

WILLIAM HOWARD PUGH,

Petitioner,

v.

THE STATE OF FLORIDA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE 4TH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

William M. Winkel, Esq.

P.O. Box 2153

Palm Beach, Florida

33480

Counsel for Petitioner

IN THE SUPREME COURT OF THE UNITED STATES

TERM, 1985

NO.

WILLIAM HOWARD PUGH,

Petitioner,

Vv.

THE STATE OF FLORIDA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE 4TH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

QUESTIONS PRESENTED

1. Where a law enforcement officer who

is the affiant in the affidavit of probable

cause is, by his superiors, intentionally

told lies or falsified facts and affiants'

superiors cause affiant to unknowingly or

with reckless disregard of the falsity of

said facts, swear that said facts are true,

ee

iii i

is such a search warrant ever subject to

challenge?

2. Whether the trial court erred in

refusing to consider Petitioner's allega-

tions of misrepresentation in the warrant

affidavit.

TABLE OF CONTENTS

PAGE

Questions Presented l

Table of Authorities 4

Jurisdictional Statement 5

Constitutional Provisions

Involved 6

Statement of the Case

1. Facts 8

2. The Federal Question 10

Argument

1. The Instant Cas2 Presents

A Question of "Substantial

Significance" That Has Not

Previously Been Decided By

This Court 13

2. Fourth Amendment Rights

Require Judiciai Review

Of The Truth Of An Affi-

davit Supporting A

Search Warrant 15

3. The Evidence Produced In

Violation Of The Petition-

er's Fourth Amendment Rights

Significantly Prejudiced

His Case 16

4. The Law Enforcement Offic-

ials Fabricated Facts To

Support Their Suspicions. 19

Conclusions 23

Appendix 25

TABLE OF AUTHORITIES

PAGE

Aguilar v. Texas, 378 U.S.

108 (1964) 15

Brinegar v. United States,

KE U.S. 160 (1949) 15

Franks v. Delaware, 438

v.02. 1.2

Jenkins v. State, 385 So.

a. 1980) 9

Rinse vw. U.3., dea Ff... 26

398 (1960) 23

Leon v. United States, 104 S.Ct.

3405 (1984) 19

Ma v. Ohio, 367 U.S. 643

(1961) 14

Spinelli v. United States,

393 U.S. 410 (1969) 15

Weeks v. United States,

se 2 | ) 14

a

United States Constitution

Article I, §9 16

JURISDICTIONAL STATEMENT

The jurisdiction of this Court is invoked

on the basis that a right, privilege or im-

munity is claimed under the United States

Constitution, and the decision in the Court

below was against the right, privilege or

immunity.

1. The judgment in the Court below was

filed on April 3, 1985, and entered

May 8, 1985.

2. A motion for rehearing was filed on

April 16, 1985 and a response thereto filed

April 19, 1985. The order denying the

motion to rehear was filed May 8, 1985.

No order extending the time within which

to petition for Certiorari has been granted

3. The statutory provision believed to

confer jurisdiction on this Court tv review

judgment by Writ of Certiorari is 28 U.S.C.

§1257(3).

CONSTITUTIONAL PROVISIONS INVOLVED

The Constitutional provision which the

case involves is the Fourth Amendment to the

United States Constitution, which reads as

follows:

The right of the people to be

secure in their persons, houses,

papers, and effects, against un-

reasonable searches and seizures,

shall not be violated, and no

warrants shall issue, but upon

probable cause, supported by oath

or affirmation, and particularly

describing the place to be searched,

and the persons or things to be

seized.

This provision is found in Volume I, page

XLVIII of the Official Edition.

The case further involves the Fourteenth

Amendment of the United States Constitution,

Section I, which reads as follows:

All persons born or in the United

States, and subject to the juris-

diction thereof, are citizens of

the United Stat.s wherein they re-

side. No state shall make or enforce

any law which shall abridge the priv-

ileges or immunities of citizens of

the United States; nor shall any

state deprive any person of life,

liberty, or property, without due

process of law; nor deny to any per-

son within its jurisdiction the

equal protection of the laws.

This provision is found in Volume I, page.

XLIX of the Official Edition.

STATEMENT OF THE CASE

1. Facts: The Petitioner was originally

charged with trafficking in cannabis in ex-

cess oi 100 pounds. However the State re-

duced the charge to attempted trafficking

in cannabis in excess of: 100 pounus and

Petitioner plead no contest to the reduced

charge specifically reserving his right to

appeal the denial of his motion to suppress

as the Court, State and Petitioner agreed

that motion to suppress was dispositive of

the case.

The Petitioner appealed the denial of his

motion to suppress on the grounds that the

trial court erred in refusing to hear cer-

tain evidence at a suppression hearing. The

denial of Petitioner's motion to suppress

was affirmed on appeal by the Fourth Dis-

trict Court of Appeal of the State of

Florida. The Fourth District Court of

Appeal filed Its decision on April 3, 1985.

-

The decision was a per curiam affirmance,

without citation or opinion. The Supreme

Court of Florida has no jurisdiction under

the Florida Constitution to review district

court of appeal's per curiam affirmance.

Jenkins v. State.

According to the affiant in the affidavit

used to establish probable cause for the

issuance of the search warrant cannabis was

being smuggled from Petitioner's residence.

A search warrant was obtained by law en-

forcement officials and used to seize a

boat, automobile, personal effects and

cannabis, which were the subject of Peti-

tioner's motion to suppress. The trial

court refused to hear evidence offered at

the suppression hearing to impeach the

veracity, reliability and probative value

of the affidavit used to establish probable

cause for the issuance of the search

warrant.

a

385 So.2d 1356 (Fla. 1980)

othe

2. The Federal Question: The federal

question sought to be reviewed was first

raised at the suppression hearing. Peti-

tioner filed his memorandum in support of

his motion to suppress. See Appendix D,

pages 4-13 wherein the memorandum proffers

the sworn testimony of law enforcement

officers which was before the trial court in

the form of sworn depositions. The sworn

testimony of Lt. Murphy, Lt. Jones, Sgt.

York, #nd Agent Hilson which was proferred

demonstrates the falsehoods, the disregard

of the truth, the unreliability and irrele-

vant nature of the affidavit. It is inter-

esting to note that Lt. Jonec in his depo-

sition stated:

..if it was left up to me to

get a search warrant, I don't think

I could have gotten a search warrant

on what I seen...Appendix D, pages

8 and 9

and he was on surveillance with Agent

Hilson.

ya

At the suppression hearing the trial court

stated at page 17 of Appendix E:

...Well, I don't believe you can

attack a search warrant by showing

that some of the facts are false.

You can only attack it by showing

that the affiant falsified those

facts, that...that the facts that

the affiant set forth he knew were

false.

At page 30 of Appendix E the Court stated:

...The validity and the truth of

the affidavit is whether the affiant

told the truth as to what he put in

the affidavit and not as to whether

the people who reported to him were

telling the truth or not, so I'll

sustain the objection.

Again at page 73 of Appendix E the Court

rules:

Now we're having a hearing on the

motion to suppress at this time and

that's what I'm--and you are proceed-

ing with it and when you're through

with--with your presentation of evi-

dence then I'll hear any evidence the

State wants to present and then I'll

hear any rebuttal evidence you want to

present, then I'll be glad to hear argu-

ment on--on the motion. I-I-I think

we are having a hearing, I don't know

--I'm not gonna have a hearing within

a hearing. I don't know what--what

you're trying to do. I mean why can't

we do this orderly, I mean the normal

usual way to hear a motion to suppress.

eEBun

——aaa

At pages 3, 4 and 74 of Appendix E Peti-

tioner proferred testimony which the trial

court refused to hear.

If the false, unreliable and immaterial

portions of the affidavit are excluded there

is no remaining content upon which to base

a search warrant.

-12-

ee tii

ARGUMENT

The Petitioner offers the following argu-

ment in support of allowance of the writ:

l.

THE INSTANT CASE PRESENTS A QUESTION OF

"SUBSTANTIAL SIGNIFICANCE" THAT HAS NOT

PREVIOUSLY BEEN DECIDED BY THIS COURT

This Court in Franks v. Delaware” held

that a warrant may be attacked on the

grounds that the issuing judge was misled

by information provided in the affidavit

that the affidavit knew was false or would

have known was false except for his reckless

disregard of the truth.

It is a self-evident truth that Justice

cannot condone the doing of something in-

directly that it will not allow to be done

directly. Therefore where the affiant to

an affidavit is fed falsehoods, false infor-

mation and told that evidence was reliable

“438 U.S. 154

io

ee

when in truth it was not and this false, un-

reliable information is knowingly fed to the

affiant by law enforcement officers who know

that the magistrate will thereby be duped

and issue a search warrant, such a warrant

must be voided and the fruits of the search

be excluded; to decide otherwise makes the

court an accessory to unlawful activity.

Inherent in the above outlined situation

is to make the judiciary the puppet of ad-

ministration with police state overtones.

This Court in Weeks v. United States”

and Mapp v. Ohio’, required the exclusion

from federal and state courts, respectively,

of evidence seized in violation of the

Fourth Amendment to the U.S. Constitution.

That Amendment prohibits "unreasonable

searches" and declares that "...no warrants

shall issue, but upon probable cause,

supported by oath or affirmation...". Ex-

3932 U.S. 383 (1914)

4367 U.S. 643 (1961)

-14-

tensive judicial consideration has been

given to the allegations of an affidavit

necessary to establish probable cause”.

In accordance with Florida practice and

Rule 4l1(e) of the Federal Rules of Criminal

Procedure, an aggrieved person may move to

suppress evidence on the ground that there

was not probable cause for believing the ex-

istence of the grounds on which the warrant

was issued. Reason dictates that a deter-

mination of probable cause would involve

the exploration of the accuracy as well as

the sufficiency of the allegations in a

supporting affidavit.

Il.

FOURTH AMENDMENT RIGHTS REQUIRE JUDI-

CIAL REVIEW OF THE TRUTH OF AN AFFI-

DAVIT SUPPORTING A SEARCH WARRANT.

Inherent in our judicial system is the

-spinelli v. United States, 393 U.S. 410

(1969); Aguilar v. Texas, 378 U.S. 108

(1964); Brinegar v. United States, 338 U.S.

160 (1949)

H3-

aa aa

principal that truth and the seeking of the

truth is best served in the crucible of our

adversary system. Ex parte proceedings were

so abhorrent to our forefathers that they

placed specific prohibitions against bills

of attainer in our Constitution®.

The pre-search proceeding is ex parte

of necessity and if Petitioner is denied his

right to a full and fair hearing forbidding

a probe into the truthfulness of the affi-

davit he can never challenge the truthful-

ness, reliability or probative value of the

evicence presented at the ex parte hearing

wherein the search warrant is issued.

Er.

THE EVIDENCE PRODUCED IN VIOLATION

OF THE PETITIONER'S FOURTH AMEND-

MENT RIGHTS SIGNIFICANTLY PREJU-

DICED HIS CAUSE.

In the affidavit for the search warrant

6

United States Constitution, Article I,

§9

wliin

issued on January 27, 1983, five (5) facts

were alleged to establish probable cause.

Of those five facts, it is submitted that

none provided a basis for the belief that

physical evidence connected with trafficking

in cannabis might be found in the searched

premises:

a. Fact One - Garbage Pickups:

The controlled garbage pickups are of

no probative value as the Petitioner at the

suppression hearing below offered to produce

evidence Lt. Murphy didn't know who put the

garbage in front of Petitioner's house (See

Appendix D, page 4). Petitioner testified

at the suppression hearing in the trial

court that he was out of the State of

Florida during the month of August (See

Appendix E, page 77).

b. Fact Two - Surveillance:

The affiant lied about a Mako boat and

Petitioner's control of said boat. The

affiant only saw an empty dock and on one

37.

occasion a different boat named the Sea

Angel (See Appendix E, pages 24 and 25).

Affiant never saw any illegal activity

and neither did anyone else (See Appendix E,

pages 24 and 57).

c. Fact Three - Confidential Informers:

According to Lt. Murphy there were sev-

eral informers whose reliability was not

stated nor was the time when they gave

their information to Lt. Murphy established

(See Appendix E. pages 26-30). And more

importantly, the proffer would have shown

that there was never anytime established

regarding the time when the condifential

informers supposedly received their informa-

tion. The affidavit doesn't establish this

important time frame (See Appendix D, page

6).

d. Fact Four - The BOLO:

Agent Hilson said he had no reason to

believe the BOLO concerned Petitioner (See

Appendix E, page 48).

-18-

e. Fact Five - Becker:

The supposed fact of the Becker friend-

ship in the affidavit is totally untrue (See

Appendix D, pages 13 and 14).

The trial court's refusal to hear the

evidence proferred at the suppression hearing

bore on issues central to the sufficiency of

the affidavit for the application of a

search warrant and it was an error for the

trial court not to hear and consider the pro-

ferred testimony.

IV.

THE LAW ENFORCEMENT OFFICIALS FAB-

RICATED FACTS TO SUPPORT THEIR SUS-

PICIONS. _

The case of the United States v. Leon’

emphasizes what has always been the law,

that mere suspicion on the part of law en-

forcement officers is not a sufficient

ground for the issuance of a search warrant.

The Leon case makes it clear that ignor-

‘104 $.Ct. 3405 (1984)

a.

ance of the law will not excuse violations

of the Fourth Amendment, no matter what the

officer's subjective good faith:

We emphasize that the stan-

dard of reasonableness we adopt

is an objective one. Many objec-

tions to a good-faith exception

assume that the exception will

turn on the subjective good

faith of individual officers...

The objective standard we adopt

...requires officers to have a

reasonable knowledge of what the

law prohibits?®.

It is clear, therefore, that law enforce-

ment officers are charged with knowing the

difference between probable cause and rea-

sonable suspicion.

In the instant case the entire affidavit

is based on suspicion:

a. The garbage pickups were made on

suspicion. Petitioner proffered Lt. Murphy's

testimony (See Appendix E, pages 15-18) in

regard to the garbage pickup. The testimony

of Lt. Murphy would have been that he didn't

know whether the garbage came from Petition-

5

Ibid. ror

er's house (See Appendix D, page 4).

b. The affiant, Agent Hilson testified

he only saw an empty dock and on one occasion

a boat different from Petitioner's (See

Appendix E, pages 25 and 62). The surveil-

lance he reported on January 27, 1983 is all

based on suspicion. Affiant says some of

his information came from Officer Battey.

Affiant further testifies Battey only told

him of his (Battey's) suspicions (See Appen-

dix E, page 57).

c. In regard to the confidential infor-

mers the testimony was they (note more than

one) saw suspicious" activities (See Appen-

dix E, page 27).

d. The BOLO is all suspicion and no sub-

stance as earlier demonstrated herein.

e. The Becker friendship is false and

provided false grounds to add to the affi-

davit. Petitioner was not allowed to ques-

tion Lt. Murphy in his regard and proferred

to the trial judge that Lt. Murphy had told

att «

Judge Harper, the judge who signed the

search warrant, that there was no connection

between Petitioner and Becker (See Appendix

E, page 98 and Appendix D, page 14).

92.

CONCLUSIONS

It is respectfully submitted that if the

'

Fourth Amendment is to succeed in its stated

purpose of protecting the "right of the

people to be secure in their persons, houses,

papers, and effects, against unreasonable

searches and seizures...,"' a review of the

validity of an affiant's allegations in

addition to their sufficiency is required, in

accordance with carefully reasoned opinions

such as King v. U.s.?

in which the court con-

cluded, "The constitutional requirenent of

an oath or affirmation would be effectively

eroded away if fictitious oaths were per-

mitted. "10

It is respectfully submitted that every

material misstatement and false assertion

should require exclusion of the evidence

obtained as a result of false information.

7282 F. 2d 398 (1960)

10inia., p. 399

«23-

Such exclusion is necessary to deter law

enforcement officers from setting up the

Magistrate with falsehoods and in order to

adequately preserve constitutionally guar-

anteed rights against unreasonable searches

and seizures.

In view of the importance of the issues

presented in this case, granting of the Writ

Of Certiorari is indicated.

In view of the foregoing, the issuance

of a Writ Of Certiorari is earnestly soli-

cited.

Res ea sub be)

William M. Winkel

Counsel for Petitioner

-24-

LY IRN. Cah low a tn dank me

APPENDIX

Attached

ITEM

A/ ORDER PER CURIAM AFFIRMED 5/8/85

Fourth District Court of Appeal

State of Florida

B/ ORAL ORDER Denying Defendant's

Motion to Suppress 6/17/83

Circuit Court, Nineteenth Judicial

Circuit of Martin County, Florida

APPENDIX

Filed with the Clerk of the United

State Supreme Court

ORDER PER CURIAM AFFIRMED 5/8/85

AFFIDAVIT OF PROBABLE CAUSE

SEARCH WARRANT

DEFENDANT'S MEMORANDUM IN SUPPORT

OF DEFENDANT'S MOTION TO SUPPRESS

a se

E TRANSCRIPT OF AMENDED MOTION TO

SUPPRESS HEARING

I HEREBY CERTIFY that copies of the

above have been filed with the Clerk of the

United ates Supreme Court this 9Q ¥ day

of f 985.

QS NS i

; dA

—_—_

WILLIAM M. WINKEL, ESQ.

Counsel for Petitioner

=25~

IN THE DISTRICT COURT OF APPEAL

STATE OF FLORIDA

FOURTH DISTRICT JANUARY TERM 1985

WILLIAM HOWARD PUGH. CASE NO. 83-2534

Appellant,

Vs. NOT FINAL UNTIL TIME

EXPIRES TO FILE RE-

STATE OF FLORIDA, HEARING PETITION

AND, IF FILED, DIS-

Appellee. POSED OF.

th ab ate ea ae ie ae ba wae /

Decision filed April 3, 1985

Appeal from the Circuit Court

for Martin County;

C. Pfeiffer Trowbridge, Judge.

William M. Winkel of Winkel &

Sims, West Palm Beach for

Appellant.

Jim Smith, Attorney General,

Tallahassee, and Joan Fowler

Rossin, Assistant Attorney

General, West Palm Beach, for

Appellee.

PER CURIAM. -

Affirmed.

APPENDIX A/

; oe 2

AMSTEAD, C.J., DOWNEY and WALDEN, J.J.,

concur.

IN THE DISTRICT COUR OF APPEAL

STATE OF FLORIDA

FOURTH DISTRICT

WILLIAM HOWARD PUGH,

Appellant,

Vv. CASE NO. 83-2534

STATE OF FLORIDA,

Appellee.

May 8, 1985

BY ORDER OF THE COURT:

ORDERED that Appellant's April 16,

1985 Motion for Rehearing is denied.

APPENDIX A/

2 Of 2

I hereby certify the foregoing is a

true copy of the original court order.

P~

LYDE L. HEATH,

CLERK

cc: William M. Winkel, Esq.

Joan Fowler Rossin, Ass't Att.General

IN THE CIRCUIT COURT OF THE

NINETEENTH JUDICIAL CIRCUIT

MARTIN COUNTY, FLORIDA

CASE NO. 83-77

STATE OF FLOIRDA,

Plaintiff,

Vox

WILLIAM HOWARD PUGH,

Defendant.

AMENDED MOTION TO SUPPRESS HEARING

This case came before the court for

hearing on June 17, 1983, before Honor-

able C. Pfeiffer Trowbridge, Circuit

Judge, at the Martin County Courthouse,

Stuart, Florida.

Appearances were as follows:

FOR THE STATE: FOR THE DEFENDANT:

David Morgan William M. Winkel

Assistant State 249 Royal Palm Way

Attorney P. O. Box 2153

Stuart, Florida Palm Beach,Florida

33494 | 33480

APPENDIX B/

1 of 3

pression to the issuing magistrate that they

have used confidential informants in the past

on other matters, they didn't say how the

informants got the information, they didn't

say when the informant saw these acts, it

could've been ten years ago. It's all un-

trustworthy and I would submit to this court

that it can either suppress the evidence or

grant to this defendant a--a further hearing

to establish the truth or the untruth of the

statements in that affidavit of probable

cause.

Thank you.

THE COURT: Okay, from a legal standpoint

the court's of the opinion that the affida-

vit is sufficient to support the issuance of

the search warrant and from a factual stand-

point there is no evidence that the affiant

deliberately lied or acted with reckless

disregard for the truth.

The warrant in my opinion covers the pre-

mises and the curtilage, including vehicles

APPENIX B/

i ae

thereon or any boats tied to docks within

the curtilage and so the court's going to

deny the motion to suppress.

Is that all that we have or is there any

other motion that you've got that we have to

dispose of?

MR. WINKEL: Your Honor has recommended

that I make a written motion for the return

of these items?

THE COURT: Weil, I haven't recommended

anything. I've told you I'm not going to

hear that today and not gonna hear that

until you file the motion on it. Is that

all that we...

APPENDIX B/

3 of 3