# Petition for Writ of Certiorari — Arnone v. New York > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0088%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1967 - **Citation:** 385 U.S. 1003 ## Text . SWRARY. "WME COURT. Usa. eee ONC LUE RN, ~*~ — Office-Supreme Court, U.S. FiL ED \ ocr. 24 1066 IN THE _ Supe Court of sheet nited States .. OCTOBER TERM, 1966 | ares SALVATORE ARN ONE and an TONIO ay “Ss A cers ‘@ tm PEOPLE OF THE STATE oF NEW YORK, Respondent. a \ ? 3 COURT. OF NEW ene JAFFE and FELDMAN 2 a ‘225 Broadway ’. * New York, : “4 4 ook ag 8 Ne * Of Counsel: eee ea ne, Evucene Fetpman . . +O PINTO; ie ‘Petitioners, PETITION. FORA WRIT OF CERTIORARI TO THE APPELLATE _ DIVISION, SECOND DBPARTMENT OF THE SUPREME - Attorneys for Petitioners N. Y. 10007 a : a Dad . . tolls - . a ¥ e : . unreported and is orn hereto, infra, at page Al. i, ; Bs ele 4 teed ang JS eb, : + on oS ¢ ‘ ‘ ° é - Ke 2 r >% : ; ¢ a) f : “! i 4 rie A ie Jurisdiction _ Jurisdiction of this Court is invoked hie Title 28, ¢ United ‘States: Code, ‘Section 1257 (3). An order, without - opinion, denying petitioners’ motion to vacate. ‘the-search - : warrant and to suppress certain evidence seized thereunder pursuant to’New York Code of Criminal Procedure, Section _813-c was entered on April 18, 1966, by the Appellate Divi- sion, | Second Department. of the Supreme Court of the: - 9 State. of New York.. Leave to appeal to the Court of Ap- . \peals of the State of New ‘York was denied by. the Honor- able Adrian -. Burke on July 1, 1966: Application for an extension of time in which to file this petition from Septem- ber 28, 1966 up to and including October 26, 1966 “was ‘granted i in an Order-isgued by Mr.. J ustice Harlan, dated ° wh, sonsinal 23, 1966. . Mee : oh i oe Beene Presented ™~ ‘, Whether ‘afailure. of a seargh warrant to describe the particular premises which was searched constitutes a dep- : -rivation of the-protection of the Fourth Amendment to the. United States Constitution? ; “2, Whether there are dicate governing Wee or oan _ tion of the place to be searched described in the search war- rant shfficient to’ meet the requirements of the Fourth Amendment to the United States Constitution? 3. Whether a seargh i is valid under the Fourth Amend- : ment to the United States. Constitution which is based upbn - | - alleged probable cause obtained subsequent to the issuance - of a search werrant ang, without knowledge of: any Court = J aie | the ite ‘ie eeeaaed cause??? | ~ : w& at, : : : cA J b ; " i : hi ie at a : : 4 : courier wees and Statutory Provisions Involved =. : i, This: * Case UR the Fourth Amendmenf te the _ United States Constitution. =, " 3 2. Section 813-c of the Code of Criniinal Procedure of. “the State of New York is also involved: ; Szorion 813-0 OF THE é OF Cinietis Procepune . : A person claiming to"be aggrieved by an unlawful , ~ séareh and seizure and having reasonable grounds _ to believe that the property, paper. -or things, here- © ‘imafter referred to as property, claimed to haye been | yulawfully obtained may be used as evidence against - him in a criminal proceeding, may move for the re- ¢ - turn of such property or for the suppression of its - use as evidence. The court shall hear. eviderice on any issue of fact necessary to the determination of ‘the motion.’ ¢ If the motion if granted, the property ‘shall be restored unless otherwise subject tlawful detention, and in any event it shall not be mdmissible as evi- dence in any — processing against the moving perty.. - . If. the motion is denied, the order deasiag such.” may ‘be reviewed on appeal from a: judgment of con-.. -_viction notwithstanding the fact that such judgment | A of conviction 1 is sisoaecared =p a plea-of guilty. vet Statement Pa | Prior Proceedings iat . Petitioner's were charged i in a four count indictment by, a Grand Jury in Queens County in the State of N’ ew York ee the crimes of operating a policy: business, i in. knowingly keeping a place. for. receiving written records of more than . fas ee 3 oe a knowingly .receiving in one day written records:of more than one hundred policy wagers; keeping a place to be used ~for policy playing; and possession of policy slips .(R. 5-7). On April 16, 1963, petitioners filed a Notice of Motion to controvert a search -warrant obtained herein and-to sup- - press evidence obtained thereunder in violation of théir - rights under the Fourth Amendment to the United States . Constitution (R. 32, 33). A hearing on the aforesaid motion - was held before Justice Joseph M. Conroy of the Supreme Court of the State of New York, ‘on April 16, 1963 (R. 40- . ' 57). The motion was denied by opinion and order dated - April 29, 1963 (R. 62-64 reprinted Al, ‘mfra). Thereafter petitioners pleaded guilty to the crime .of at- tempting”to commit the felony of operating a policy busi- ness in violation of Seetion 974b of the Penal Law, of the ° State of New York, without in any way, prdjudicing their ‘rights under Section 813-c of the New York Code of Crim- inal Procedure. to resist upon appeal the aforesaid inter- ‘mediate. order of Justice J osenh M. _ Conroy sated a ~ 29, 1963 (R. 15-22). : | Petitioner Salvatore Arnone was suihiisend toa term of one year, three tonths to five years in the State Prison. and Petitioner ‘Antonio Pinto was sentenved to one year, . _ three months’ to two years in the State Prison with. é&ecu- tion of both sentdhees stayed during good behavior (R. 31). On appeal to the Appellate Division of the ‘Supreme : “Court of the State of New York in the Second Judicial De- : . partment, the conviction was affirmed without opinion on - ~ April 18, 1966. Leave to appeal to the Court of Appeals - in the State of New York was denied by Hon. Adrian | oe Burke, Associate J oo on J uly, 1, — a hundred plays or bets; operating a policy business in a 5 : . os bes ° : Evens Presented at aces on Motion to Suppress ° Detective John Macauley: Detective John Macauley of the New York City: Police Department testified that he submitted an affidavit.to Judge - Francis X. O’Brien on October 26, 1962, in support of an’ * _. application for a search warrant to search premises 40-66 ‘97th Street, Queens, ‘‘a basement apartment thereat”’ (R. 42-43), A copy of the affidavit which was marked as peti- - tioner’s Exhibit “A” in evidence (R. qp!-59) described the: -. - premises to be searched as ‘‘the first floor rear apartment’’ **believed: to be occupied by Frances Arnone’’. No other . officer or other witness submitted any additional affidavits ‘ (R. 58) without reciting ; any. basis for this belief. No merition of Frances Arnone appears in the hearings ands in fact, the apartment was apparently occupied by petitioners Salvatore Arnone - and Antonio Pinto. Ina four family house it is’a distinct possibility that Frances Arnone—if: there be such a per- _ son—may occupy an’apartnient separate from that of Sal-_ vatore Arnone.’ Similarity of surname of tenant i is tot suffi- ‘ ejent to equate ‘the basement apartment with the first floor - rear apartment. In any ‘event, the warrant which is the instrument to be executed gave no clue as to who the occu- _pant of the partment sought to be searched might be and | “thus the cases relied’ upon by the. hearing. court are aca d : plicable. = There ‘was no probable cause, nor any cause demonstrated as to the search of any apartment of Arnone whether his _ name be Frances or Salvatore. The sole information sup- plied is that the petitioner Pinto entered premises, 40-66 97th Street, on four or five separate occasions. No where is it alleged that he entered the apartment of Salvatore a - Arnone. No where is it alleged that Frances. Arnone is in anyway involved with petitioner Pinto. ‘In passing on the validity of the watrant the review court may consider only the information brought to the Magistrate’s attention.”? Aguilar v..Téxas (1964), 378 U.S, 108, 109, footnote I. A search warrant to be valid should be strictly on probable cause. Pailing this, a warrant i is void, probable cause can only be determined ‘‘from the facts and circumstances pre- _ sented to him*(the Judge) under oath or affirmation.’’ 4 as? o : eg re in g "& 17 Siiesiaasin v. United States, supra, page 47. There was either no probable cause for the search involved herein as 5 is‘ set forth hereinbefore and hereiziafter or there was a lack of specificity i in the warrant which allowed the. search - to be made;: which lack of — made the warrant in-. valid. ; e The type of specificity” and accuracy called for where the, ‘premises to be’searched are located i in multiple dwellings was well summed up more than thirty years ago:: ‘*In those. cases. for example, which hold a warrant to be valid which directs a search of an.apartment house or other building occupied“by divers persons, the particular part of such apartment house or build- ing is by limitation confined either to premises there- _ in occupied by a certain stated person or persdns, or by designation of a certain part of the building.’’ . ’ a United, States ex rel. Sunrise Products Co. v. Epstein (D. C.E. D.N.Y. 1929), 33 F. 2d 982. Neither of these requirements was met by the warrant in the instant case. Under the present status of judicial © holdings in this area the laxness permitted by tlie court be- low is not surprising. ' It is however an illustration of the dangers implicit «i in suéh an approach and. as such an apt , ease for. this court to consider and to use as a basis of élari- ) fying the law in this area. : 3.. The New York State courts’ ‘rejection of petitioners’ motion to suppress not only undermines. the requirement of the Fourth Amendment that premises be described with particularity but also undercuts that Amendment’s require- ment that search warrants not issue unless there be ‘*prob- - able cause’’ for searching*the premises Alescribed. | — = > This ‘‘probable cause’? may ‘only be determined from - ‘‘facts or circumstances presented to (the judge) under oath and affirmation.”’ Nathanson v. United States, 290 U.S. .41, ay 47 -(1933).. In Sgro: v. United States, 287 U.S. 206, 211 a (1932) the Court. noted ‘‘The proofs supplied (for the is-. suance of the warrant).. . must speak as of the time of the issue of that warrant’? (anaieels supplied). It is beyond" dispute that the question of whether probable cause exists * . must be determined by the issuing g court—certainly. prior to execution of the warrant and as a. prerequisite to its . _issuance—and not by the offiéer executing it. Aguilar v. Tewas, 378 U.S. 108 (1964) ; Matter of Rossenwasser Bros., | 24 Fed. 171, 173 (D.C. 1918). ape _ The record below .provides an pone er example of the , wisdom of the’ requirement that prior determination of probable cause be made by a disinterested person. At the : time application was made for this warrant and at the time of its issuance, Detective McCauley advised the isst- ing court of those facts which he believed constituted proba- ble cause for searching the first floor rear apartment of the premises in question. These facts consisted of his hav- ing seen petitioner Pinto go to the first floor rear. apart- _ ment on the previous day and of his ‘‘belief’’ stated. with- out source that this apartment “was occupied by one Frances Arnone. Subsequent to the issuance of the warrant, but prior to its execution, and in the process of its execution, Detective McCauley saw petitioner Pinto enter a door in . the premises which. led, not to the first floor rear apart- ment, but to the basement apartment, and‘he proceeded to _ execute the warrant within the basement apartment. Q ‘Binge there was nitliing: in the warrant which deséribed” ~ | the basement apartment the purported “probable cause’’ for searching that apartment could only have arisen “from = . events arising between the issuance -and the execution of - _ “the warrant. This. intervening cause must’ have been tthe fact that petitioner Pinto entered a-door in the premises | . which the detective subsequently learned led to the: base- ment. There ‘is no. more justification for sustaining an - execution based upon this type of evidence than there would be for approving a search of any area which lay behind any door which petitioner may have chosen to. enter at the time the detective decided to.conduct a search. The effect of the decision below is to make unnecessary the existence of any search warrant, and to allow a police - officer, intent upon seizing contraband he suspects to be : present, to violate the rights of others—albeit ‘unintention- : ally—in the process. . Constitutional Sights. must not yield. to such exigencies | of the moment. Essential to-the-. protection of the, basic. constitutional right of privacy is the requirement that — probable cause be determined by a neutral and detached magistrate prior to the. search rather than ‘by the’ ‘Officer. engaged in the often competitive enterprise: of ferreting’ out crime. " Aguilar v. Texas, supra, Johnson v.- United States, 333 U.S. 10, 14 (1948) ; Giordenello v. United States, . - 857 U.S. 480, 485 (1957); United States v. Lefkowitz, 285 ~ US. 452, 463 (1932). . . There is no dispute that i in the affidavit 1 upon which the search warrant was obtained no probable cause was shown ‘to search the basement apartment; at the time he ob- tained the warrant. Detective McCauley, did not know he: fey 5 ] Nees 20° would subsequently desire to search that specials his © - desire to do so arose only at the time he-was gttemping _ " to execute the warrant.: It is undisputed that the validity of - ‘By warrant depends upon. its contents which i in turn speak ee al the time. it was issued. , Aguilar v. Texas, supra; Stan- ford v. Texas, 379 U.S. 431 (1965) ; Johnson v. United States, _ 333 US. 10 (1948). ~~ We submit that upon the basis of the securd herein the _ execution of the warrant was without legal basis and that © _ to sustain it, violates the requirement of the Fourth Amend- _ ment and this Court’s -decisions thereunder. . There ‘must oe ‘‘probable cause’’ to search the premises described i me :: the warrant: : ‘* Any other rule would undermine ‘the right of the people to be secure in their persons, houses, papers and effects,’ and would o _ obliterate one of the most fundamental - distinctions between our form of gov- . €@rnment, where officers are under the law, and the. . police state where they are the law.’? Johnson v. United States, 333 U.S. 10, 17 (1948). CONCLUSION Wikivdfovs, for the reasons tathk above stated, it is respectfully submitted that this petition should be e er javes and Fuipuan . Attorneys for Petitioners. Of Counsel :. Evcene FetpMan ace me ermeen ee ot ee Secret Y RED ON RRR Coe | | APPENDIX A. | Opinion of Coney, J., Denying Motion to Suppress | SUPREME COURT - Quzens County . Camanan Tznm—Panr I : sie : . is Ind. ‘No. 1773-62 erg came THE PEOPLE OF THE SraTE oF New Yorx, | y. Satvaronz ARNONE, Awzomt0 Pawn, + _ By Joszpn M. Conroy, J. Dated April 29th, 1963 Kd ; A hearing was held on April 16, 1963 (1) for an order ‘to vacate a search warrant issued October 26, 1962, and the return of the property seized, and (2)'to suppress the _., use of such property seized as evidence on the ground that said seizure was. unreasonable and in violation of the IV Amendment of the United States Constitution. Based upon the testimony and affidavit for the search — warrant (Ex. A), the Court finds there was probable cause for the issuance of: ‘said warrant and that branclr of the motion is denied. wei _.The remaining issue is the legality of the search and - seizure based upon the search warrant, The warrant. — Defendants. to Apyeniia A : Opinion by Conroy, J., Denying Motion to Suppress ; directed a search of premises 40-66 97th Street, Ist Floor — ’ pear apartinent,. Corona, . Queens, occupied by Frances Arnone and others.’ The testimony ‘at the hearing was _ that the entrance to. the apartment in question was or the rear of the first floor of premises 40-66 97th Street, Corona, — and ‘that upon opening the door there was a flight of steps” leading dow to 4 basement apartment. In the basement apartment. the : detectives found both of the defendants together with written records of Mutuel Race ‘Horse nid and other gambli g paraphernalia. | * The petitioners argue that the basement of said premises is a separate and distinct area and cannot be said to form a part of or to be in.any way related to the. premises desig- nated in the warrant to be searched, citing U. S.v. Falcone, © 109 Fed. (2d). 579, 582; affd. 311 U. S. 205.. A reading of _ 3 that case does not strengthen the petitioners’ position. It does state “A warrant must indeed be. specific enough not to allow the officers latitude to search at their. choice;’’ however it then goes on ‘to. state ‘All that is required is. reasonable certainty of identification,?’ citing. Steele v. U. S., 267 U.S. 498, 503, 45 S. Ct. 414, 69 L. Ed. 757 ; Chiaravalloti v. U. 8.,7 Cir. 60 F. (2) 192; “Rose v. U. 8., 8 Cir., 45 F. (2) 459. - There is no dispute that thegentranoe t to the aplistaient . _ > was in the rear of the’first floor of the premises. In addi-* tion, the two petitioners were co-lessees of the apartment _ whose entrancegwas in the rear of the first floor (see affidavit of Antonio Pinto, dated April 2, 1963, p. 1). . In U. 8. v. Barkouskas. (38 F. (2) 837,'838) the Court ; oo stated ‘*(T)t has been, held that a'search warrant is valid. which directs the search of;-an apartment house or. other: as wt Appendix’ A: oe ae. by Conroy, J. , Denying Motion to ‘Suppress buildings occupied by a number of different tenants, and states the name of the person occupying the apartment to’ _. be searched. Such a description is sufficient, as it ‘ par- ticularly’ points to .a-definite ascertainable place’’. In ra In Townsend v. U: 8. {258 F, (2d) 461), the Court stated ‘ same hereby are tinanimiguaty affirmed. abate accent : : | Enter: eae cones - Herman M. Poovut Acting Clerk. *» _ ~ ue \ 1 ; =*\ be \, ° r . on 2) ’ a ss 4 F | i . l\ | \;. \/ q € "a g atl e ie zh 4.26 . i : : *¢ i . 2 Y + * * o od ’ » % ‘ A 2 . . & : y ciel o oi ° OA. 2 p Sve pa > APPENDIX D- "Decision of Appellate Division aa 132 E. and 133 E. The People, ete., respondent, v. Salvatore Arnone and Antonio Pinto, appellants. | _ Appeal by: defendants from: (1) a judgment of the ecuie - Court, Queens County, rendered June 17, 1963, convicting . each of them of attempted violation of section 974-a of the ~ ~ Penal Law as 4 felony, on their respective pleas of guilty, and imposing and suspending execution of sentence; and (2) as limited by their brief, from an intermediate order of said court, entered May 2, 1963,,which denied after a hearing: their motion to vacate a search warrant and to suppress evidence (Code Crim. Pro., § 813-c). J udgment and intermediate order affirmed. No opinion. UcHETTA, a P. J, Dae, was Rapin and BEnsamIN, _JJ., concur. 7 April 18, 1966 {Cznmrercarr0%] Ai _SUPREME court OF THE STATE-OF NEW YORK, . ' APPELLATE Division, at widen te ‘Seconp J UDICIAL DzPpARTMENT, - Olerk’s Office, Borough of Brooklyn, N. Y. I, Herman M. Pouk, Clerk: of the Appellate Division of the Supreme Court of the State of New York in the Second J udicial Department, do hereby certify that the foregoing is a copy of the decision-made by said Court upon the e°? “7 Appendia D—Decision of Appellate Division | - Appeal in the above entitled action, and entered in may office on the 18th day of April, 1966... 4 ee ecuae oa 5 In Wrrness Wuniaor, I have hereunto set my hand and | - affixed: the seal of said Court, at’the Borough of Peete. ce | this 18th cl of October, 1966. - Heawaw M. Pocut ~ Clerk.. - [Seat] A10 APPENDIX E Certificate Denying Leave to Appeal to "Court of Appeals STATE OF NEWYORK. - _ Court or APPEALS Before: Pa Ei | Hon. Aprian P. Burge, —_ * vv Tue Peopte or THE State or New York, : Respondent, —against— jase Annons and Antowto. PrnyTOo, Associate Judge. Defendants-Appellants. : — a L Aprian P. Boake, Associate Judge of the Court of Ap- * . peals of-the State of New York, do hereby certify that, upon application timely made by the above named appellant for a | certificate pursuant to Section 520 of the Code of Criminal . Procedure, and upon the record and proceedings herein, . there is no question of law presented which ought to be re- - viewed by the Court of er and ceca to a : : is hereby denied. fats G Dated at New York City, New York: July 1, 1966 | i ius } A BuRKE Associate Judge --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0088%3A1. Public record. Not legal advice.