Petition for Writ of Certiorari — Cimino v. Illinois

E. ROBERT SEAVER, CLERK

In Tue

Supreme Count of the Uuited States

Ocrosger Trerm, A.D. 1970

No. 6389

VINCENT CIMINO,

Petitioner,

vB.

THE PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF ILLINOIS

Geratp W. Getty

Public Defender of Cook County

JaMEs N. GRaMENOS

Assistant Public Defender

SrepHen A. SNAKARD

Of Counsel

Room 1124, County Building

Chicago, Illinois 60602

(312) 321-6350

Counsel for Petitioner

PENN METRY LAIR TET TENET em eT,

INDEX

Reference To Reports Of Opinions

Statement Of Jurisdictional Grounds

Questions Presented For Review

Constitutional Provisions Involved

Statutes Involved

Statement Of The Case

Argument For Allowing The Writ .....................-.--------

I.

This Court Must No Longer Permit State

Prosecutors To Compromise An Individual’s Life

Or Freedom And To Equivocate The Significance

Of The Jury’s Responsibility By Commenting

On The Possibility Of Probation, Pardon Or

Parole For The Accused In A Criminal Pro-

ceeding

The Petitioner Was Not Eligible For Proba-

tion And The Prosecutor Was Aware Of This

When He Advised The Jury That The Petitioner

Was Eligible For Probation ..............-....-.------------+

II.

Citizens Walking The Streets Of This Nation

Should Not Be Made The Subject Of Indiscrimi-

nate Spotlight Scrutiny By The Police; That

Police Conduct Of This Nature Should Be Tem-

pered By An Objective Evidentiary Standard

That Would Warrant This Form Of Police In-

irusion Upon The Personal Security Of Private

Citizens

PAGE

ano ww Nw WN

18

li

Under The Facts Of This Case, Does The Po-

lice Use Of A Spotlight On Citizens On The

Street Constitute An Unconstitutional Search

I I saiceahiaaiissietiites Maiessctnanaicehcansecsn cnbcnionsenishine 22

Conclusion 35

Appendices : |

A—Opinion of the ['linois Supreme Court ................ la

B—Letter from Illinois Supreme Court .................. 7a

C—Letter from Illinois Supreme Court .................. 8a

D—Chap. 38, Ill. Rev. Stats., Sec. 22-40 0.000... 9a

List Or Avutuorities Crrep

Cases:

Chapman v. California, 386 U.S. 18 (1967) ............ 16, 17

Elkins v. United States, 364 U.S. 206 (1960) ........ 34

Estes v. Texas, 381 U.S. 532 (1965) 9

Garcia v. Nelson; U.S.D.C. N. Calif., 6/15/70, 7

Cr.L. 2327-28 27, 28

Graham v. State, 202 Tenn. 423, 304 S.W. 2d 622

(1957) 13, 14

Griffin v. California, 380 U.S. 609 (1965) ................ 15

Katz v. United States, 389 U.S. 347 (1967) .............. 24

Mapp v. Ohio, 367 U.S. 643 (1961) 34

People v. Burgard, 377 Ill. 322, 36 N.E. 2d 558

(1941) 10, 11

People v. Isbell, 363 Ill. 264, 2 N.E. 2d 84 (1936) .. 10

People v. Johnson, 284 N.Y. 182, 30 N.E. 2d 465

(1940) 12

People v. Klapperich, 370 Ill. 588, 19 N.E. 2d 579

(1939) | 10

ili

People v. Lynn, 387 Ill. 549, 56 N.E. 2d 808 (1944)

10, 15

Rochin v. California, 342 U.S. 165 (1952) ..00000..... 18

Shoemaker v. State, 228 Md. 462, 180 A. 2d 682

(1962) 12

Sibron v. New York, 392 U.S. 40 ..... 29, 30

State v. Johnson, 151 La. 625, 92 So. 139 (1922) .. 12, 13

State v. Rhodes, 275 N.C. 584, 165 S.E. 2d 846

(1969) 11, 14

Terry v. Ohio, 392 U.S. 1 (1967)

23, 24, 25, 26, 28, 30, 31, 32

Statutes:

Illinois Revised Statutes, 1967, volume I, chapter

38, page 1561, paragraph 22-40 (Penalties) .. 5, 9, 9a

Constitutional Provisions:

Fourth Amendment 5, 20, 24, 34

Fifth Amendment 5, 16

Sixth Amendment 5, 8, 15, 16

Fourteenth Amendment 5, 8, 34

In Tue

Supreme Court of the United States

Ocroser Trrm, A.D. 1970

No.

VINCENT CIMINO,

Petitioner,

vs.

THE PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF ILLINOIS

Petitiouer Vincent Cimino prays that a writ of certi-

orari issue to review the judgment of the Supreme Court

of Illinois affirming the jury trial conviction of possession

of narcotics. The defendant was sentenced to a 5 to 10

year term in the Illinois State Penitentiary.

— 2.

REFERENCE TO REPORTS OF OPINION.

People v. Cimino, ...... me Oe tox , 207 N.E. 2d 97, is

attached as an Appendix.

STATEMENT OF JURISDICTIONAL GROUNDS.

The judgment of the Supreme Court of Illinois was

entered on March 24, 1970 and on April 21, 1970 the

dissenting opinion of Mr. Justice Schaefer was received

in the Office of The Clerk of the Supreme Court of Iili-

nois. A Petition for Rehearing to the Illinois Supreme

Court was filed and on May 27, 1970, “On the Court’s

own motion the mandate is recalled and stayed pending

disposition of petition for rehearing.” On October 6,

1970 the Petition for Rehearing was Cenied. Jurisdiction

of this Court is invoked under Title 28 U.S.C., sec. 1257

(3).

a

QUESTIONS PRESENTED FOR REVIEW.

1. In s& State criminal prosecution does a comment

by the prosecuting attorney in his closing argument that:

“As a matter of fact, the Defendant is Eligible for pro-

bation on this case.”, tend to diminish the jury’s sense

of responsibility and directly contravene the Sixth Amend-

ment guarantee of a right to a fair and impartial trial?

And,

(a) If this form of argument is to e Constitu-

tionally condemned would not the circumstances be

even more compelling where, as in this case, the

prosecutor knew that the accused was not eligible

for probation?

2. The Petitioner and his companion were merely

walking down the street at night approaching an inter-

section in Chicago. At this particular time the officers

involved in this case were approaching the same inter-

section from another direction in an unmarked squad

car. When the officers noticed the two men they recog-

nized the Petitioner’s companion as a known narcotics

user. One of the officers then threw a spotlight on them

and the squad car was stopped in the crosswalk block-

ing their path. Following this action by the officers, they

observed the Petitioner raise his hand to his mouth and

then lower it to his waist and release a tin foil packet,

which was later identified as heroin. The facts are in the

record and not disputed by the prosecutor; the only

reason for shining the spotlight on the Petitioner and.

stopping the squad car directly in his path was solely

because of his presence with a man known to the police

as a user of narcotics.

uilbiaies

The questions presented in light of the foregoing cir-

cumstances are:

(a) Did the indiscriminate use of a spotlight on

the Petitioner and the contemporaneous blocking of ©

his path with a squad car constitute a forceful show

of authority by the police that amounted to a search

and seizure of the Petitioner? And,

if under these circumstances, the conduct of the officers

did constitute a search and seizure of the Petitioner,

(b) Does walking down a public sidewalk with

a person known to use narcotics warrant a man of

reasonable caution in the belief that the search and

seizure was appropriate; or is such conduct noth-

ing more substantial than the product of an inarticu-

late hunch premised upon guilt by association fos-

tering an unconstitutional intrusion upon the per-

sonal security of the Petitioner without the evi-

dentiary justification which the Fourth Amendment

commands? And,

(c) Would not the sanctioning by this Court of

the indiscriminate use of spotlights on the citizenry

of this country provide the law enforcement agencies

with an effective means by which to circumvent the

guidelines carefully laid down in Terry v. Ohio, 392

US. 1, (1967), by permitting the police to prod

the object of their spotlight scrutiny into creating

the suspicious circumstances which would permit his

“stop” and “frisk” and perhaps conclude in the

eventual deprivation of his freedom?

a

CONSTITUTIONAL PROVISIONS INVOLVED.

Fourth Amendment:

“The right of the people to be secure in their

persons . . . against unreasonable searches and

seizures, shall not be violated .. .”

Fifth Amendment:

“No person shall be .. . deprived of life, liberty,

or property, without due process of law.”

Sixth Amendment:

“In all criminal prosecutions, the accused shall

enjoy the right te ... an impartial jury ... and

to have the assistance of counsel for his defense.”

Fourteenth Amendment:

“.. nor shall any State deprive any person of

life, liberty, or property, without due process of

law; nor deny to any person within its jurisdiction

the equal protection of the laws.”

STATUTES INVOLVED.

Illinois Revised Statutes, 1967, volume I, chapter 38,

page 1561, paragraph 22-4C. (Penalties). (pertinent text

is attached as Appendix D.).

a

STATEMENT OF THE CASE.

On the evening of February 3, 1966, at approximately

11:30 p.m., the officers involved in this case were on a

routine patrol in an unmarked squad car approaching

the ..tersection of Bell and Potomac Streets in Chi-

cago. (A. 31, 32; R. 50-52). As they neared the inter-

section, they noticed the Petitioner and his companion

to their right proceeding towards them on the sidewalk.

The street was sufficiently lighted to enable both officers

to recognize the Petitioner’s companion as a known

narcotics user, who had previously been arrested by

both officers. The Petitioner and his companion were

approximately 25 to 30 feet from the squad car, when

one of the officers threw the spotlight on them and stop-

ped the squad car in the crosswalk directly blocking their

path. Both officers testified that the only reason for

initiating this action was because they recognized the

Petitioner’s companion as a person known to them to

have used narcotics. The officers then stated that they

observed the defendant raise his hand to his mouth and

then lower it to his waist and release a tin foil packet,

the size of a quarter, which landed in the snow. (A.

32-34, 43-45, 17, 50; R. 52-56, 111-116, 20, 21, 132). While

the spotlight was kept on the suspects as they walked

towards the squad car, one of the officers retrieved the

packet and after determining that it appeared to be

heroin, shouted to the other officer “Stop them, it’s stuff.”

(A. 35; R. 56-57). After the Petitioner and his com-

panion were searched and nothing was found on them,

they were told to get in the backseat of the car while

ea neneet|

a om

one of the officers field tested the contents of the packet,

which resulted in a positive reaction. The officers re-

leased the Petitioner’s companion but retained the Peti-

tioner in custody and processed him at the police sta-

tion. Both testified to the foregoing facts in court. (A.

35, 44-46, 49; R. 56, 57, 114-119, 131).

The Petitioner filed a motior to suppress the packet

of heroin, (A. 3-44; R. C6-7) which was denied, (A. 4, 28;

R. 43) and the packet was received in evidence during

the course of the trial. (A. 51; R. 141-146).

Whereupon the trial proceeded accordingly until fol-

lowing the Petitioner’s closing argument, the Assistant

State’s Attorney commented to the jury during his

closing argument that, “And as a matter of fact, the

Defendant is eligible for probation on this case.” The

Assistant State’s Attorney made this statement knowing

to the contrary that the Petitioner was not eligible for

probation. (A. 77, 81-83, 85-86; R. 209, 244-249).

The jury deliberated for three and a half hours and

thereafter returned a verdict of “guilty as charged in

the information.” (A. 80, 85-86; R. 229, 259-260).

The Petitioner’s post trial motion for new trial, which

raised among its points those presented by this petition

(A. 6; R. C14), was denied. (A. 86; R. 267).

The Petitioner was then sentenced to a term of five

(5) to ten (10) years in the State Penitentiary. (A. 87;

R. 274).

Following the sentencing of the trial court, the Peti-

tioner duly prosecuted an appeal to the Supreme Court

of Illinois which affirmed on all points including those

presented by this petition, Justice Schaefer dissenting.

A copy of that Court’s opinion is attached as Apper.dix A.

a en

On May 27, 1970 the mandate was recalled and stayed

by order of the Supreme Court of Illinois pending dis-

position of the petition for rehearing, which incorpo-

rated the points raised in the instant petition. (App. B).

The petition for rehearing was denied on October 6,

1970. (App. C).

Now, wherefore, upon the denial of the petition for

rehearing, the Petitioner, Vincent Cimino, duly prose-

cutes this petition for writ of certiorari.

REASONS FOR GRANTING THE WRIT.

I.

THIS COURT MUST NO LONGER PERMIT STATE PROSE-

CUTORS TO COMPROMISE AN INDIVIDUAL’S LIFE OR

FREEDOM AND TO EQUIVOCATE THE SIGNIFICANCE OF

THE JURY’S RESPONSIBILITY BY COMMENTING ON THE

POSSIBILITY OF PRORATION, PARDON OR PAROLE FOR

THE ACCUSED IN A CRIMINAL PROCEEDING.

This case presents substantial questions concerning

this Court’s “harmless constitutional-error rule” in re-

lation to a particular form of prejudicial argument, em-

ployed by State prosecuting attorneys and sanctioned by

a few State courts, which denies the accused his rights

guaranteed by the Sixth and Fourteenth Amendments.

In 1953, when Vincent Cimino was about 17 years of

age, he was convicted of possession of narcotics and put

on probation for five years, which he completed with-

out a violation. (A. 86; R. 268-269). At a pre-trial con-

ference his past conviction was brought to the attention

a Asim eat ea

—9—

of the Court. It was then determined that the petitioner

would not be eligible for probation as proscribed in Chap-

ter 38, Section 22-40, of the Illinois Revised Statutes,

(1967). (App. D). In attendance at this conference was

the Trial Judge, the Assistant State’s Attorneys, the

Petitioner, and Petitioner’s attorney. (A. 81-83, 85-86;

R. 244-260).

Following the Petitioner’s closing argument, the As-

sistant State’s Attorney commented to the jury during

his closing argument that, “And as a matter of fact,

he is eligible for probation on this case.” (A. 76-77; R.

209). The Petitioner’s attorney did not make an objec-

tion to this statement, and the Trial Judge failed to

instruct the jury to disregard it. However, this error

was brought to the attention of the Court in the Peti-

tioner’s Post Trial Motion. Having heard the arguments

of counsel, the Trial Judge denied the Motion for New

Trial. (A. 86; R. $37).

Unquestionably Petitioner has the constitutional right

to a fair and impartial jury trial. As this Court made

explicit in Estes v. Texas, 381 U.S. 532, 540, (1965),

“That the due process requirements in both the Fifth

and Fourteenth Amendments and the. provisions of

the Sixth Amendment require a procedure that will

assure a fair trial. * * * the preservation of a fair

trial—the most fundamental of all freedoms—must

be maintained at all costs.”

However, it is just as undeniable that State prosecutors

by commenting on the possibility of probation, pardon

or parole deny the accused this most fundamental of all

freedoms. (Although the prejudicial comment complained

of in this case was the prosecutor’s reference to pro-

— —— ~ LATIONS IL REOIA Sa

LF KINI PLS LOLI LLL EOER ITED I BLAINE LOE TORT _—— —_

a Sa

—10—

bation, the Petitioner respectfully submits that the ratio

decidendi applies equally as well to references concerning

pardon and parole).

In the case at bar, the court below specifically found,

regarding the prosecutor’s reference to probation:

“While the comments exceeded the bounds of pro-

priety, we do not think that under the circumstances

of this case they were sufficiently prejudicial to call

for a reversal. Where it appears that improper re-

marks do not constitute a material factor in the

conviction, or that they are of such a minor char-

acter that prejudice to defendant is not their prob-

able result, the verdict will not be disturbed.” (App.

A). (Emphasis added)

Although in this instance the court below found that

reference to probation is of such a minor character that

' prejudice is not the probable result, thirty-five years of

Illinois precedent holds to the contrary. People v. Isbell,

363 Ill. 264, 2 N.E. 2d 84, (1936); People v. Klapperich,

370 Ill. 588, 19 N.E. 2d 579, (1939); People v. Burgard,

377 Ill. 322, 36 N.E. 2d 558, (1941); People v. Lynn, 387

Ill. 549, 56 N.E. 2d 808, (1944). In essence the court

below has overruled thirty-five years of Illinois precedent

without any mention in the opinion that such an estab-

lished concept was being overruled. Thus in affirming

Petitioner’s conviction, the Illinois Supreme Court has

established precedent that will license prosecutors through-

out the State to advise juries in all cases that the defend-

ant before the bar is eligible for probation without fear

of reversal on appeal.

Not only is the opinion of the court below in contradic-

tion to established Illinois precedent, but it is also con-

trary to the greater weight and better reasoned author-

s

= =

ity in the country. See 16 ALR 3d 1137. The State of

Georgia has thought this form of argument so repre-

hensible as to warrant a statute, which provides for the

mandatory granting of a mistrial if counsel in a criminal

case should argue to or before the jury the possibility

of pardon, parole or clemency of any nature. Ga. L.

1955 p. 191. To the same effect, the Supreme Court of

North Carolina, citing the ALR Annotation above, has

held that:

“Any reference by the judge or prosecuting attorney

to the possibility of a parole will constitute preju-

dicial error.” State v. Rhodes, 275 N.C. 584, 169 S.E.

2d 846, 849, (1969).

There are two inherent evils in this form of argument:

One going to jury determination of gvilt and innocence

and the other as to the penalty to be imposed.

As to guilt, prejudice results from leading the jury

to evade its responsibilities and compromise on the ques-

tion of guilt by way of reassuring the jury that if it

makes a mistake, the consequences will not be overly

serious, since relief by pardon, parole or probation is

available. Another form of prejudice is manifested by

way of arousing the jury’s ire against criminals gen-

erally (including the accused, who is by implication

grouped with others who have already been convicted

of crime) by pointing out the manner in which they

flout the law by escaping just punishment. (16 ALR 3d

1137, 1140). In People v. Burgard, 377 Ill. 322, at 330, 36

N.E. 2d 558, (1941), where the prosecutor commented

to the jury that the law allowed the judge to grant pro-

bation, the court in reversing the conviction noted:

“However, the inference was plain that the jury

might assume that the court had the right to grant

—1l2—

probation, and that the defendant might not be called

upon to serve a penitentiary sentence,”

See also People v. Johnson, 284 N.Y. 182, 30 N.E. 2d 465,

(1940) ; Shoemaker v. State, 228 Md. 462, 180 A. 2d 682,

(1962).

As to sentence, prejudice results from the inference

to the jury to impose an excessive punishment in order

to compensate for, or protect against the possibility of

(probation), pardon or parole. 16 ALR 3d 1137, at 1141.

The consequences of this type of argument are especially

repugnant in those instances where the death penalty

could be imposed. In State v. Johnson, 151 La. 625, 92

So. 139 (1922), the prosecutor in a murder trial com-

mented to the jury that life imprisonment was a farce

and history showed that after a short period of time,

say 5, 10, or 15 years he (defendant) would be turned

loose again on society. In setting aside the death sen-

tence, the Louisiana Supreme Court stated:

“In all prosecutions for capital offenses in this state,

the discretionary power is vested in the jury to

qualify its verdict by finding the accused guilty with-

out capital punishment, which means life imprison-

ment. . . . In the exercise of this power the jury

should be left free and untrammeled and should not

be influenced by the personal opinion of the prose-

euting officer as to the wisdom and expediency of

the law, and the effect which, in his opinion, would

result from a qualified verdict.

The remarks of the district attorney in plain English

meant, and could only mean, this:

The law which authorizes the jury to qualify its

verdict, is a farce, and means nothing to you as

jurors: you should hang the accused, and, if you do

- =

not, he will be paroled in a few years and let loose

upon society. If you will send him to the gallows,

he will be beyond the reach of the board of parole.”

id, 634.

There is a third vice which is uniquely associated

with reference by the prosecutor to the possibility of

probation for the accused. This particular form of ar-

gument by the State places defense counsel in an ex-

tremely disadvantageous position. If the defense attor-

ney does not make an objection, then the jury is free

to consider this prejudicial information during their

deliberation. If, on the other hand, defense counsel ob-

jects, this serves only to impress the statement all the

more firmly upon the minds of the jury and inclines

them towards the belief that the accused is not eligible

for probation because he has been convicted of a crime

in the past. Therefore, when faced with this dilemma,

the defense attorney is made to choose between the lesser

of two evils and is forced not to make an objection.

In light of the inherent evils, the conclusion is ines-

capable, that commenting on the possibility of probation

to the jury is highly prejudicial to the accused in a

criminal prosecution and therefore warrants constitution-

al condemnation by this Court. Prosecutors should not

be allowed in this manner to travel outside the record

and argue facts before the jury which are not in evidence.

Jurors should devote their undivided attention to deter-

mining the issue of guilt or innocence and they should

not engage in speculation concerning the possibility of

probation when a person’s freedom hangs in the balance.

In those cases wherein the jury determines the penalty,

the Court in Graham v. State, 202 Tenn. 423, at 426, 304

S.W. 2d 622, (1957), stated:

a ae

“The power to pardon, and/or commute a sentence

of imprisonment as fixed by the jury, is foreign to

the trial of any criminal case. The jury’s exclusive

duty to assess th: punishment in all cases must be

exercised fully according to the provisions of the

appropriate statute and as given in charge by the

trial judge. They cannot, under any circumstances,

consider the power of the Governor to pardon, or

the authority of the Parole Board to grant paroles.

Nor can they speculate as to what this Court might

do on appeal. ... If the Rule were otherwise the

verdict of the jury would be mere guesswork. More-

over, in such circumstances, this court would never

be able to decide if the trial judge approved the

verdict based on the facts, or on some unaccountable

speculation as to the possibility of a reduction of.

the sentence by the Governor. Both the State and

the defendant are entitled to a verdict that is based

solely and alone upon the facts of the case and the

law as given in charge by the court.”

The reasoning of the court in Graham, supra, applies

equally as well to comments on probation as illustrated

by State v. Rhodes, 275 N.C. 584, 165 S.E. 2d 846, 848,

(1969), wherein the court there stated:

“The amount of punishment which a verdict of guilty

will empower the judge to impose is totally irrelevant

to the issue of the defendant’s guilt. It is, therefore,

no concern of the jurors.”

In the instant case, the Assistant State’s Attorney’s

reference to probation seriously prejudiced the Petitioner

and denied him a fair and impartial trial. The inference

is irrebutable, as was pointed out by Justice Schaefer

in his dissent below, (App. A), when he stated:

“The majority makes no attempt to justify this ar-

gument and its only purpose appears to be to dimin-

ish the jury’s sense of responsibility by persuading

=|

them that a verdict of guilty is not a significant

matter because even if he is found guilty the de-

fendant is not going to be punished.”

The absence of an objection by the Pr‘itioner’s at-

torney and the failure of the Court below to instruct

the jury to disregard it, no doubt had an influence with

the jury and inclined them towards the belief that the

statement was accurate and a proper line of argument

to be considered during their deliberations. It cannot be

safely concluded that the jury disregarded the comment

(as to parole) by the prosecution and proceeded there-

after to a consideration of the question of the Defendant’s

guilt in the same frame of mind and the same attitude

toward the case as though the statement had not been

made. People v. Lynn, 387 Ill. 549, 555, 56 N.E. 2d 808,

(1944).

The case at bar was close and proof of the Petitioner’s

guilt was far from clear and convincing. The closeness

of the trial was exemplified by the three end a half hours

the jury deliberated before it returned a verdict. (A.

85-86; R. 259-260). The harm done by the comment was

left unchecked and its impact upon the determination of

the jury was inescapable.

Petitioner submits that the mode of argument employed

in this case should be constitutionally condemned for

many of the same reasons which led this Court in

Griffin v. California, 380 U.S. 609, (1965), to condemn

comment on the accused’s failure to testify. The evils

inherent in the form of extrajudicial comment employed

in the case at bar have been illustrated and how they

operate in derogation of the Sixth Amendment guarantee

to a fair and impartial trial. Since this particular form

of argument places defense counsel in an extremely com-

a

promising position, to the extent that his hands are

tied and he dare not object for fear of calling further

attention to the error, the accused is denied his Sixth

Amendment right to the effective assistance of counsel.

In addition, this type of comment either diminishes the

jury’s sense of responsibility or results in their assuming

the functions of the judge and the executive authorities

and inclines them towards imposing a penalty on the de-

fendant because of their speculation that clemency may

be granted at some future date. As a consequence, the

accused is denied due process of law and his right to

a fair and impartial jury.

The court below admits that the prosecutor’s argu-

ment was improper (App. 3a), but helds that it was

harmless. We now take the opportunity to respectfully

remind this Court of its statement in Chapman v. Cali-

fornia, 386 U.S. 18, 22, (1967):

“ . . we must recognize that harmless-error rules

can work very unfair and mischievous results when,

for example, highly important and persuasive evi-

dence, or argument, though legally forbidden, finds

its way into a trial in which the question of guilt

or innocence is a close one.”

The Petitioner contends that the reference to proba-

tion in his case was highly persuasive to the jury and

an important factor in his conviction and that this form

of prejudicial comment should be constitutionally for-

bidden.

Therefore, the Petitioner urges this Court to hold that

the Fifth and Sixth Amendments, in their bearing on the

States by reason of the Fourteenth Amendment, forbids

either comment by the prosecution on the possibility of

the accused’s probation, pardon or parole, or instructions

by the court to the same effect.

_—

Should this Court hold that this form of argument is

condemned by the Constitution, then the question as to

whether it constitutes harmless-error becomes a federal

one. As was pointed out by the Court in Chapman:

“Whether a conviction for crime should stand when

a State has failed to accord federal constitutionally

guaranteed rights is every bit as much of a federal

question as what particular federal constitutional pro-

visions themselves mean, what they guarantee, and

whether they have been denied. With faithfulness

to the constitutional union of the States, we cannot

leave to the States the formulation of the authorita-

tive laws, rules and remedies designed to protect

people from infractions by the States of federally

guaranteed rights.” id. 21.

Under the standard promulgated in Chapman, before

this constitutional error can be held harmless, the Court

must be able to declare a belief that it was harmless

beyond a reasonable doubt.

The case at bar was close and proof of the Petitioner’s

guilt was far from clear and convincing. The closeness

of the trial was exemplified by the three and a half hours

the jury deliberated before it returned a verdict. The

very nature of the comment itself and the failure of the

trial judge to instruct the jury to disregard it, undoubted-

ly influenced the jury’s determination of guilt. Even the

findings of the court below show that prejudice to the

defendant was not the probable result.

Therefore, upon applying the reasonable doubt stand-

ard as required by Chapman to the instant case, the Peti-

tioner prays that Your Honors will reverse his convic-

tion and constitutionally condemn the form of argument

which lead to his imprisonment.

=

A. The Petitioner Was Not Eligible For Probation And

The Prosecutor Was Aware Of This When He Advised

The Jury That The Petitioner Was Eligible For Pro-

bation.

During a pre-trial conference attended by both State

prosecutors in this case, the trial judge made it per-

fectly clear to all parties that the Petitioner would not

be eligible for probation because of his prior conviction.

(A. 81-86; R. 244-260) In spite of this, however, the

State’s Attorney saw fit to advise the jury to the con-

trary. (A. 77; R. 209).

In light of these circumstances, a serious question is

raised as to the limitations which the Due Process Clause

of the Fourteenth Amendment imposes on this form of

conduct in criminal proceedings by the States.

Petitioner maintains that the conduct of the prosecutor

in this instance denied him Due Process of Law. As

this Court pointed out in Rochin v. California, 342 U.S.

165, 169, (1952), when it stated:

“However, this Court too has its responsibility. Re-

gard for the requirements of the Due Process Clause

‘inescapably imposes upon this Court an exercise of

judgment upon the whole course of the proceedings

[resulting in a conviction] in order to ascertain

whether they offend those canons of decency and

fairness which express the notions of justice of

English-speaking peoples even toward those charged

with the most heinous offenses.”

Earlier in this petition, the inherent evils replete in

this form of argument were demonstrated. However,

when these same evils are coupled with the fact, as in

this case, that the accused is not eligible for probation,

then the conduct complained of transcends the canons of

es

decency and offends traditional notions of fair play 2nd

substantial justice. As Justice Schaefer observed in his

dissent below, when he remarked: .

“This argument is, in my opinion, clearly and de-

liberately prejudicial even if the facts were as the

prosecutor stated. In this case the error is com-

pounded, however, by the fact that the prosecutor’s

statement was not true.” (App. A).

From what source can the States derive authority

which permits their prosecutors to disregard the truth

of matters argued before the jury and which results

in the deprivation of an individual’s freedom? The ques-

tion, of course, begs the answer. Noxe!

And in a criminal proceeding, could not a white lie told

by the prosecutor develop into a malignancy that infects

a juror’s sense of responsibility until that juror no longer

appreciates the significance of his constitutional duties as

the trier of fact? And by way of an answer to this ques-

tion, should the accused be the party required to bear

the risk of this possibility?

The prosecutor below struck a bargain with the jury.

Acting in his official capacity as prosecutor and as rep-

resentative of the State, he held out to the jury a promise

or induced an agreement by way of innuendo, that should

the Petitioner be convicted, he would be considered for

probation. After the guilty verdict was returned and it

came time for the State to keep its end of the bargain,

the court below refused to consider probation and sen-

tenced the Petitioner to 5-10 years in the penitentiary.

It must be recognized that all of this comes as a direct

consequence of the prejudicial comment made below!

The Petitioner now asks this Court, in light of the

totality of the circumstances, if this form of conduct

—20—

constitutes due process and whether it is consistent with

modern day notions of decency and fairness?

We respectfully submit that an enlightened sense of

justice demands a negative answer.

Certiorari should be granted in this case in order to

eradicate this form of prejudicial error from State crim-

inal proceedings and to uphold respect for the constitu-

tional guarantee of a fair and impartial trial which is

so rooted in the traditions and conscience of our people

as to be ranked as fundamental.

II.

CITIZENS WALKING THE STREETS OF THIS NATION

SHOULD NOT BE MADE THE SUBJECT OF INDISCRIMI-

NATE SPOTLIGHT SCRUTINY BY THE POLICE; THAT PO-

LICE CONDUCT OF THIS NATURE SHOULD BE TEMPERED

BY AN OBJECTIVE EVIDENTIARY STANDARD THAT

WOULD WARRANT THIS FORM OF POLICE INTRUSION

UPON THE PERSONAL SECURITY OF PRIVATE CITIZENS.

This case presents serious questions concerning the

role of the Fourth Amendment in the confrontation on

the street between the citizen and the policeman investi-

gating what the policeman regards as suspicious cir-

cumstances. In the case at bar, the Petitioner and his

companion were merely walking down a Chicago street

at night, when they encountered the police officers in-

volved in this case. Although the two of them were

approximately 25 to 30 feet from the squad car, the

officers testified that the street was sufficiently lighted

to enable them to immediately recognize the Petitioner’s

companion as Ronnie Boland, a known narcotic user,

who had previously been arrested by both officers. It

was then that one of the officers threw the spotlight on

—

them and the squad car was stopped in the crosswalk

blocking their path. Following this action by the officers

the police testified they observed the Petitioner raise

his hand to his mouth and then lower it to his waist

and release a tin foil packet, which was later identified

by the police as narcotics. (A. 32-36, 44-50, 17, 40; R.

52-59, 116-134, 20, 21, 86).

Petitioner argued in his brief to the court below

that, under the circumstances of this case, the police

use of a spotlight on him and the contemporaneous block-

ing of his path with a squad car constituted a forceful

show of authority by the police that amounted to an

unreasonable restraint and search of the Petitioner be-

fore the officers observed him discard the packet of nar-

cotics.

However, the court below misconstrued Petitioner’s

argument and framed the issue as follows:

“The crux of the issue is whether, after viewing

this action by the defendant, the arrest that the

officers subsequently made was based on the reason-

able grounds that the defendant had committed or

was now committing a criminal offense.” (App. A).

In his petition for rehearing, the Petitioner called the

court’s attention to the fact that they had misinterpreted

the issue raised and that the behavior by the police in

this case had amounted to a search and seizure of the

Petitioner before the heroin was discovered. Notwith-

standing this, the court below denied the petition for

rehearing. (App. C).

Therefore, in pursuing his only hope of recourse, the

Petitioner now places before this Court a question of

first wmpression.

—29—

UNDER THE FACTS OF THIS CASE, DOES THE POLICE

USE OF A SPOTLIGHT ON CITIZENS ON THE STREET

CONSTITUTE AN UNCONSTITUTIONAL SEARCH AND

SEIZURE?

When viewed in light of contemporary social and ethi-

cal standards alone, this form of police harassment of

citizens on the street should be condemned.

It must be recognized at the very outset that other

parties, who are not represented here, are intimately

affected by the issue before this Court. The many thou-

sands of our citizens who have been or may be accosted

by the police in the same manner as was the Petitioner

in this case, only to be permitted to go in their way wher

the police do not observe any suspicious behavior, are

not represented here. The records of their cases are

not before the Court and cannot be brought here. Yet

it is they, far more than those charged with crime, who

will bear the consequences of this form of on-the-street

encounter.

The street encounter as shown here is an example

of the range of hostile confrontations between police

and citizens generally occurring only in economically

deprived neighborhoods. Such spotlight encounters are

initiated by the police for a wide variety of purposes,

some of which are wholly unrelated to a desire to prose-

cute for crime.

The proper adjudication of this case demands a con-

stant awareness of the scope of the latitude being given

to police officers thereby allowing wholesale harassment

by certain elements of the police community, of which

minority groups, particularly Negroes, frequently com-

plain.

— =

As this Court observed in Terry v. Ohio, 392 U.S. 1,

when it stated: ;

“The President’s Commission on Law Enforcement

and Administration of Justice found that ‘(i)n many

communities, field interrogations are a major source

of friction between the police and minority groups.’

President’s Commission on Law Enforcement and

Administration of Justice, Task Force Report: The

Police 183 (1967). It was reported that the friction

caused by ‘[mlJisuse of field interrogations’ increases

‘as more police departmer‘s adopt “aggressive pa-

trol” in which officers are encouraged routinely to

stop and question persons on the street who are un-

known to them, who are suspicious, or whose pur-

pose for being abroad is not readily evident.’ Id.,

at 184. While the frequency with which ‘frisking’

forms a part of field interrogation practice varies

tremendously with the locale, the objective of the

interrogation, and the particular officer, see Tif-

fany, McIntyre & Rotenberg, supra, n. 9, at 47-48,

it cannot help but be a severely exacerbating factor

in police-community tensions. This is particularly

true in situations where the ‘stop and frisk’ of

youths or minority group members is ‘motivated

by the officers’ perceived need to maintain the power

image of the beat officer, an aim sometimes accom-

plished by humiliating anyone who attempts to under-

mine police control of the streets.’” Jd., n. 11, at 14.

The opinion of the court below now establishes prec-

edent in Illinois that any man walking the streets of our

cities, towns, villages, whether doctor, lawyer, priest,

irrespective of any station in life, is the proper sub-

ject matter of a police spotlight for further observa-

tion and scrutinizing by the police establishment.

The citizen on the street needs the protection of the

police, amply empowered, just as he needs protection

=

from them. He is the potential victim both of crime

and of law enforcement. The very concept of indiscrimi-

nate spotlight scrutiny of citizens on the street by the

police collides violently with the basic human right of

liberty. It can be tolerated only in a society which is

willing to concede to its government powers which his-

tory and experience teach are the inevitable accouter-

ments of tyranny.

Our Constitution and Bill of Rights were designed to

take government off the backs of people. They did not

give us a welfare state. They were designed to make

it difficult for the police, prosecutors, judges, juries,

governors, presidents, and legislatures to do anything to

the individual. That is the essence of his liberty—wheth-

er he be rich or poor, popular or despised. The question

is not whether the Court at a given time is “soft” on

this group or that. It is what hurdles the Constitution

and Bill of Rights place in the path of the officials who

pursue the individual. Hon. William O. Douglas, Man-

aging the Docket of the Supreme Court of the United

States, The Record of The Association of the Bar of

the City of .vew York, May, 1970.

This Court has held that the Fourth Amendment pro-

tects people, not places. Katz v. United States, 389 U.S.

347, 351 (1967). In Katz, supra, this Court held that

wherever an individual may harbor a reasonable “ex-

pectation of privacy”, he is entitled to be free from un-

reasonable governmental intrusion. Katz, 389 U.S. at 361.

Unquestionably Petitioner was entitled to the protec-

tion of the Fourth Amendment as he walked down the

street in Chicago. Terry v. Ohio, 392 U.S. 1, (1967). The

question is whether in all the circumstances of this on-

—25—

the-street encounter, his right to personal security was

violated by an unreasonable search and seizure.

Petitioner now urges this Court, as he urged the court

below, to acknowledge that, in light of the circumstances

of this on-the-street encounter, the police use of a spot-

light on citizens on the street, constitutes a “seizure”

and a serious intrusion upon the personal security of

the individual.

In Terry, 392 U.S. n. 16, at 19, this Court delineated

at what point a “seizure” is affected for purposes of the

Fourth Amendment, when it stated:

“Only when the officer, by means of physical force

or show of authority, has in some way restrained

the liberty of a citizen may we conclude that a

‘seizure’ has occurred.”

Petitioner contends that when the policemen in this

case accosted him with their detective vehicle and their

spotlight his liberty was restrained and he was “seized”

within the meaning of the Fourth Amendment.

The spotlight is an integral part of the modern day

policeman’s arsenal which he employs to ferret out crime

and maintain control and surveillance of the streets. The

authoritative overtone implicit in the use of the police

spotlight is a matter of common knowledge among the

general populace, particularly in urban and economically

deprived areas where its use is most prevalent. The

placing of a spotlight upon an individual, under the

circumstances of the instant case, is the officer’s means

of displaying a physical show of authority. The police

spotlight to the man most likely to be the subject of

scrutiny—the man on the street in a “bad” neighbor-

hood, the man in the ghetto—is a challenge, an act of

a

dominion by the police, a thinly veiled threat of force.

To hold otherwise is to suggest that the placing of a

spotlight upon a citizen does not in some way restrain

the liberty of the citizen. What ldw abiding citizen would

be fearless enough—No! foolish enough—to ignore or

attempt to break away from the authoritative focus of

a police spotlight? But on the other hand, is it preferable

to have our citizenry ignore the authority of the law,

even if it does assume the form of a police spotlight?

Hardly! Then what could a policeman do if the citizen

did not stop? Would this justify the officer’s use of

greater force? Would this eventually lead to the con-

cept that failure to stop when a spotlight is placed upon

a citizen by an officer will justify the nvolice use of

firearms?

These questions must be posed because it is far from

a “petty indignity” to be made the focal point of at-

tention in public by the beam from a police spotlight and

it is particularly offensive to the person in his own com-

munity who may be accompanied by members of his

family or close friends. It is a serious intrusion upon

the sanctity of the person, which may inflict great “in-

diguity and arouse strong resentment, and it is not to

be undertaken lightly.” Terry v. Ohio, 392 U.S. at 16-17.

In Terry, 392 U.S. n. 14 at 17, this Court noted:

“However, the degree of community resentment

aroused by particular practices is clearly relevant

to an assessment of the quality of the intrusion upon

reasonable expectations of personal security caused

by those practices.”

A police spotlight by its very nature is not discern-

ing. It sweeps within its ambit the affluent as well as

the ghetto dwellers—the industrious as well as the idle

—27—

—the innocent as well as the guilty. Arbitrary spotlight

scrutiny of citizens on the street epitomizes, and sets

off a response to, many grievances harbored by the

community. It undeniably arouses strong community re-

sentment. Therefore, the Petitioner urges th¥Court to

find that under the circumstances of this case the po-

lice conduct complained of here constituted a “seizure”

of the Petitioner and a serious intrusion upon his per-

sonal security.

In addition, the Petitioner also asks this Court to find

that the spotlight scrutiny by the police in this case con-

stituted a “search” within the meaning of the Fourth

Amendment. The Petitioner was clearly visible without

the aid of a spotlight and he was doing nothing but

siaply walking on the public sidewalk. When the police

officers turned their spotlight on the two men, it was

to initiate their search and detention of the Petitioner’s

companion, who was known to them. They used their

spotlight to examine and probe the Petitioner and his

companion in hopes of discovering something that was

not visible to them. This form of police conduct consti-

tuted a serious intrusion upon the Petitioner’s right to

personal security—his “right to be let alone.”

In Garcia v. Nelson; U.S.D.C. N. Calif., 6/15/70, 7

Cr.L. 2327-28 a case almost identical to the one at bar,

the district court held, in granting federal habeas corpus

relief, that the defendant’s admission that he had a

“fix” earlier in the day took place after, and as a re-

sult of, an unlawful warrantless flashlight examination

of his pupils by police who stopped him on the street. The

court in Garcia, supra, stated:

“The second possible ground for the arrest is the

results of the flashlight examination of petitioner’s

—28—

eyes. A flashlight examination of one’s eyes is cer-

tainly as abhorrent to the individual as a ‘pat down’

search. Both are intrusions upon the person. The

Court in Terry v. Ohio, 392 U.S. 1, 24-25, had the fol-

lowing to say of such searches: ‘Even a limited

search of outer clothing for weapons constitutes

a severe though brief, intrusion upon cherished per-

sonal security, and it must surely be an annoying,

frightening, and perhaps humiliating experience.’ ”

The Petitioner respectfully submits to this Court that

it is no less abhorrent to the individual to be the sub-

ject of police spotlight scrutiny on the public streets nor

is it any less of an intrusion upon cherished personal

security. In addition, since the opinion of the court be-

low is in contradiction to the federal district court’s

opinion in Garcia v. Nelson, supra., a conflict exists be-

tween the jurisdictions concerning a federally guaran-

teed constitutional right. This Court should resolve this

conflict in its capacity as final arbitrator of disputes

touching upon constitutionally guaranteed rights.

Therefore we ask this Court to approve the reasoning

of Garcia, supra., and find that viewed in light of its

surrounding circumstances, the conduct of the police of-

ficers in this case amounted to a “search” and “seizure”

of the Petitioner for purposes of the Fourth Amend-

ment before the packet of heroin was discarded by the

Petitioner.

Should this Court so hold, then it must next be deter-

mined whether the police officers in the instant case had

reasonable grounds upon which to warrant this intrusion.

In Terry, 392 U.S. at 21, this Court noted and cited

authority, that before an officer intrudes upon an indi-

vidual and in justifying the particular intrusion, the

a

police officer must be able to point to specific and ar-

ticulable facts which, taken together with rational in-

ferences from those facts, reasonably warrants that in-

trusion. In footnote 18, (392 U.S. at 2!) this Court

cited extensive authority for the proposition that this

demand for specificity in the information upon which

police action is predicated is the central teaching of

Fourth Ainendment jurisprudence.

Nowhere in this case at bar is there any information

to justify the police intrusion in placing spotlight on

the Petitioner and blocking his path with their squad

ear. The facts are in the record and not disputed by the

prosecutor; the only reason for shining the spotlight

on the Petitioner was because he was walking along

with a man known to the police as a user of narcotics.

In Sibron v. New York, 392 U.S. 40, this court noted:

“The inference that persons who talk to narcotics

addicts are engaged in the criminal traffic in nar-

cotics is simply not the sort of reasonable inference

required to support an intrusion by the police upon

an individual’s personal security. Nothing resembling

probable cause existed until after the search had

turned up the envelopes of heroin. It is axiomatic

that an incident search may not precede an arrest

and serve as part of its justification. Thus the search

cannot be justified as incident to a lawful arrest.”

Id., at 62-63.

Clearly then in the case at bar, the police lacked any

semblance of probable cause upon which to warrant their

intrusion upon the Petitioner’s personal security.

As this Court pointed out in Sibron, supra, that the

police officer is not entitled to seize and search every

person whom he sees on the street or of whom he

annie

‘makes inquiries. Before he places a hand on the per-

son of a citizen in search of anything, he must have

constitutionally adequate reasonable grounds for doing

so. Sibron, 392 U.S. at 64. And in determining whether

the officer acted reasonably in such circumstances, due

weight must be given, not to his inchoate and unpar-

ticularized suspicion or “hunch”, but to the specific rea-

sonable inferences which he is entitled to draw from

the facts in light of his experience. Terry, supra, 392 U.S.

at 27. The spotlight arrest by the police in this case

was based on nothing more substantial than an inarticu-

late “hunch” premised upon guilt by association.

In Terry, supra, and the companion case of Sibron

v. New York, 392 U.S. 40, this Court reviewed the

investigative efforts of police officers who made ob-

servations of subjects for a period of time before acting.

Unlike the actions of the Chicago Police in this case,

who did no investigative effort or continued surveillance

of the subject of their inquiry, but their first compulsive

action was the initiating of the spotlight arrest of the

Petitioner.

When asked why, since he recognized the Petitioner’s

companion, did he have to put the spotlight on them—

the arresting officer testified; “So we could see him a

little better.” (A. 37; R. 66). With all due deference, we

now ask Your Honors, is this probable cause or any-

thing resembling probable cause upon which to warrant

this type of serious intrusion upon the Petitioner’s per-

sonal security? Is this sufficient justification to place him

in an annoying, frightening, and no doubt humiliating sit-

uation? Hardly! When will law enforcement agencies

heed the directives of this Court and operate as pro-

—31—

fessionals? Why could not the officers in this case have

kept the Petitioner and his companion under appropri-

ate observation until some epecific articulable facts with

rational inferences existed that would reasonably war-

rant police intrusion by spotlight or other police prac-

tice of search and seizure?

This Court should not permit this form of police in-

trusion to continue without subjecting it to the same

objective evidentiary standard espoused in Terry, supra,

where it was stated:

“The scheme of the Fourth Amendment becomes

meaningful only when it is assured that at some

point the conduct of those charged with enforcing

the laws can be subjected to the more detached,

neutral scrutiny of a judge who must evaluate the

reasonableness of a particular search or seizure in

light of the particular circumstances. And in making

that assessment it is imperative that the facts be

judged against an objective standard: would the

facts available to the officer at the moment of the

seizure or the search ‘warrant a man of reasonable

caution in the belief’ that the action taken was

appropriate? Cf. Carroll v. United States, 276 U.S.

132 (1925); Beck v. Ohio, 379 U.S. 89, 96-97 (1964).

Anything less would invite intrusions upon consti-

tutionally guaranteed rights based on nothing more

substantial than inarticulate hunches, a result this

Court has consistently refused to sanction.” (392

U.S. at 21-22). (Emphasis added)

Nowhere in the holding of the court below is there

a showing that the Illinois Supreme Court has provided

the review contemplated in the Terry, supra, opinion. In-

stead, the Illinois Supreme Court opinion ruled that the

seizure of narcotics occurred prior to the Petitioner be-

ing placed under arrest, overlooking the police spotlight

—32—

issue of search and seizure as argued below. (Petitioner’s

brief, Argument I.).

Petitioner urges that this Court condemn the police

tactics employed in this case and hold that the search

and seizure of the Petitioner was in violation of his

constitutional rights. As this Court in Terry, supra,

noted:

“Nothing we say today is to be taken as indicating

approval of police conduct outside the legitimate

investigative sphere. Under our decision, courts still

retain their traditional responsibility to gnard against

police conduct which is overbearing, or harassing, or

which trenches upon personal security without the

objective evidentiary justification which the Consti-

tution requires. When such conduct is identified, it

must be condemned by the judiciary and its fruits

must be excluded from evidence in criminal trials.

And, of course, our approval of legitimate and re-

strained investigative conduct undertaken on the

basis of ample factual justification should in no way

discourage the employment of other remedies than

the exclusionary rule to curtail abuses for which that

sanction may prove inappropriate.” (392 U.S. at 15).

Petitioner’s arrest, trial and eventual conviction was

the cumulative effect of the evils inherent in justice

founded upon guilt by association. This was all too evi-

dent from the trial judge’s concluding remarks below,

when he stated:

“The Court: He is a man (Petitioner) with a

set of twins and a little baby and a wife and he

should have kept better company. Wherever he met

the individual he was very far from his home at

the time. He was walking down the street with this

individual (the known narcotics user). Certainly the

company that you keep sometimes is a better judge

oie

of what you are or what you yourself—” (A. 87:

R. 274-275).

It is only fair to assume that if the trial judge be-

low was inclined to infer guilt merely from the Peti-

tioner’s presence with a “bad” companion, then by the

same token the jury was probably as equally disposed,

if not more so, to infer Petitioner’s guilt from his pres-

ence with another. The framers of our Constitution were

aware of the evils inherent in justice founded upon guilt

by association and they established constitutional safe-

guards designed to protect the individual against it. The

spotlight arrest and eventual conviction of the Peti-

tioner was premised upon guilt by association and there-

fore should be constitutionally condemned by this Court.

There is an additional characteristic of this spotlight

confrontation between the police and the citizen on the

street which merits particular attention. As was pointed

out earlier in this petition, the authoritative overtones

and natural implications associated with the police use

of a spotlight on the individual are matters of common.

knowledge to the populace of this country. Therefore

it is not difficult to perceive of everyday situations where

the police, lacking the specific and articulable facts upon

which to warrant an intrusion upon the individual, would

employ their spotlight in hopes of creating circumstances

which would justify their “suspicion” or “hunch” that

the individual was involved in criminal activity of some

nature. The sanctioning by this Court of the indiscrimi-

nate use of spotlights on the citizenry of this country

would provide law enforcement agencies with an effec-

tive means by which to circumvent the guidelines care-

fully laid down in Terry, supra, by permitting the po-

lice to prod the object of their spotlight scrutiny into

—34—

creating the suspicious circumstances which would per-

mit his “stop” and “frisk” and perhaps conclude in the

eventual deprivation of his freedom.

For this Court to allow the citizenry of this country

to be subjected to indiscriminate spotlight scrutiny, will

affect the vital function that the judicial process is de-

signed to implement, the function—“the imperative of

judicial integrity.” Elkins v. United States, 364 U.S. 206,

222 (1960). And foster the continued erosion of per-

sonal security. Courts which sit under our Constitution

cannot and should not be made party to lawless in-

vasions of the constitutional rights of citizens by per-

mitting unhindered police use of fruits obtained by po-

lice conduct inconsistent with the fundamental rights

of personal security of the individual. Therefore the

Petitioner urges this Court to subject this form of po-

lice conduct to the same objective standards as espoused

in Terry, supra.

Petitioner respectfully submits to this Court that his

spotlight search and seizure was unlawful and that the

admission of the narcotic packet in evidence violated

his rights under the Fourth Amendment, made applicable

to the States by virtue of the Fourteenth Amendment.

Mapp v. Ohio, 367 U.S. 643 (1961).

He prays that Certiorari be granted in this case in

order to resolve the question of first impression pre-

sented herein and to settle the conflict of federal consti-

tutional law being applied by the jurisdictions of Illinois

and the Federal District Court in Caluornia.

_—

CONCLUSION.

Petitioner prays that Your Honors will -consider his

complaints of sufficient constitutional magnitude to war-

rant this Court’s review.

Respectfully submitted,

Geratp W. Gerry

Public Defender of Cook County

JAMES N. GrRaMENOS

Assistant Public Defender

SrepHen A. SnaKkarp

Of Counsel

Room 1124, County Building

Chicago, Illinois 60602

(312) 321-6350

Counsel for Petitioner

—]a——

APPENDIX A

Opinion Of The Supreme Court Of Illinois

Docket No. 41706—Agenda 8—January, 1970.

THE PEOPLE oF THE State oF Ixuinois, Appellee, vs.

Vincent Cimino, Appellant.

[Decided March 24, 1970]

Mr. Justice Burt delivered the opinion of the court:

The grand jury returned an indictment, in the circuit

court of Cook County, against the defendant, charging him

with the offense of possession of a narcotic drug in viola-

tion of section 3 of the Uniform Narcotic Drug Act. (Ill.

Rev. Stat. 1967, ch. 38, par. 22-3.) Subsequent to this, an

error was found in the indictment and after admonishment

by the court as to the right to be reindicted properly, the

defendant agreed to waive reindictment. The People then

proceeded by information. The defendant then made a

timely motion to suppress physical evidence that was ob-

tained by the Chicago Police Department. After a hearing

on the matter, the trial judge denied the motion and al-

lowed the evidence to be introduced by the State. The jury

returned a verdict of guilty and the defendant was sen-

tenced to the penitentiary for a term of 5 to 10 years.

It appears from the record that on the evening of Feb-

bruary 3, 1966, at approximately 11:30 P.M., the defendant

and Ronnie Boland were on foot approaching the intersec-

tion of Bell and Potomac Streets in Chicago. At that mo-

ment, the police officers involved in the case were ap-

proaching the intersection in an unmarked vehicle. The

two police officers testified that they recognized Ronnie

Boland as a known narcotics user, and when the defend-

a

(Supreme Court Opinion)

ant and Boland were approximately 20 to 30 feet from

the squad car, one of the officers turned the spotlight

on the two subjects. The officers then stated that they

observed the defendant raise his hand to his mouth and

then lower it to his waist and release a tin foil packet,

the size of a quarter, which landed in the snow. One

of the officers retrieved the packet and after determining

that it appeared to be heroin, shouted to the officer to

place the two subjects under arrest. The officers field

tested the contents of the packet, which resulted in a

positive reaction. Not having any narcotics in his pos-

session, Boland was released from custody.

The first question for this court’s attention is whether

the packet of narcotics should have been introduced in

the trial. The defendant contends that the police officers

did not have probable cause to make a lawful arrest and

as a consequence, the seizure of the heroin was unrea-

sonable. The defendant has cited People v. Roebuck, 25

Ill. 2d 108, as authority for the contention that the mo-

tion to suppress the evidence should have been allowed

in the trial court. However, we believe that the factual

situation in that case was somewhat different from that

in the case a’ bar. There the defendant was arrested

without a warrant by two Chicago police officers for

violation of a Chicago ordinance. Immediately follow-

ing the arrest, as one of the officers was attempting to

search the defendant, the other officer saw defendant

throw an object into a parked car. The object was re-

trieved and was later identified as heroin. However, in

the case before us, the defendant abandoned the narcot-

ies before the police officers had placed him under ar-

rest. The police officers testified that the defendant drop-

a

(Supreme Court Opinion)

ped the packet only a few seconds after they had placed

the light on the two subjects. The crux of the issue is

whet_er, after viewing this action by the defendant, the

arrest that the officers subsequently made was based on

the reasonable grounds that the defendant had commit-

ted or was now committing a criminal offense. People v.

Wright, 41 Ill. 2d 170; People v. Peak, 29 Ill. 2d 343,

347; People v. Demarios, 401 Ill. 146, 149.

We believe that the actions of the defendant gave the

officers reasonable grounds for believing that he had, in

fact, committed or was now committing a criminal of-

fense. The existence of probable cause or reasonable

grounds for arrest depend, of course, on the totality

of the facts and circumstances of each case. (People v.

McCrimmon, 37 Ill. 2d 40, 43.) Both of the arresting of-

ficers in this case were experienced narcotics personnel

and observed the defendant throw away or drop the tin

foil packet which, as was brought out in the course of

the trial, is commonly used to carry heroin. This court

in People v. Watkins, 19 Ill. 2d 11, 19, said: “Police of-

ficers often must act upon a quick appraisal of the data

before them, and the reasonableness of their conduct

must be judged on the basis of their responsibility to

prevent crime and to catch criminals”. The officers were

reasonable in seizing the packet of heroin, and the ar-

rest that ensued was based on probable cause.

The defendant also contends that the trial court vio-

lated his constitutional rights by subjecting him to double

jeopardy when it improperly abandoned a valid indict-

ment after the empaneling and swearing of the jury and

substituted an information in lieu thereof. However, the

Resa e ISS TE SW Se KOE oie

—4a—

(Supreme Court Opinion)

record indicates that the jurors had not been sworn and

empaneled when the information was filed and sworn to.

The record is clear that the empaneling of jurors con-

tinued after the defendant waived reindictment on ad-

vice of counsel and elected to be charged by the informa-

tion. Thus, no jeopardy attached because no jury had

been sworn or empaneled. (Ill. Rev. Stat. 1967, ch. 38,

par. 3-4(a)(3); ef. People v. Watson, 394 Ill. 177, 180.)

In conjunction with this argument the defendant con-

tends that the waiver of reindictment was without an

adequate understanding of the significance of the waiver.

The record indicates that the defendant was represented

by counsel, and that the trial court gave the defendant

extensive admonishment concerning his rights to be charg-

ed by indictment. In fact, the defendant’s attorney told

him: “Do you understand they can go before a Grand

Jury and get a reindictment inserting the word ‘know-

ingly’? Then we would have to wait unul you get a

Jury again, sit in jail until you get the Jury, or we

ean waive it. They are going to put it in anyway. Do

you want to go to trial?” In addition, the question is

before us for the first time in that nothing was men-

tioned of it in the post-trial motion. The general rule

is that the failure of a defendant to make an appropri-

ate motion in the trial court, thus not preserving the

question for review, is deemed to be a waiver of the

question. (People v. Burson, 11 Ill. 2d 360, 370.) We find

that the defendant waived reindictment with an adequate

understanding of the significance of this action.

ile eT

a

(Supreme Court Opinion)

The defendant next contends that the comment by the

State’s Attorney in his closing argument: “As a matter

of fact, the defendant is eligible for probation on this

case,” denied the defendant a fair and impartial trial.

As this court said in People v. Swets, 24 Ill. 2d 418,

423: “While the comments exceeded the bounds of pro-

priety, we do not think that under the circumstances of

this case they were sufficiently prejudicial to call for

a reversal. Where it appears that improper remarks do

not constitute a material factor in the conviction, or

that they are of such a minor character that prejudice

to defendant is not their probable result, the verdict will

not be disturbed.” See also People v. Berry, 18 Ill. 2d

453, 458; People v. Sustak, 15 Ill. 2d 115, 126.

On defendant’s motion for a new trial, the trial couri

was cognizant of this argument, and was in the best posi-

tion to determine what effect, if any, it had upon the

jury. We are not inclined to set aside its decision of

the probable impact upon the jury. The judgment of the

circuit court of Cook County is, therefore, affirmed.

Judgment affirmed.

Mr. Justice Warp took no part in the consideration

or decision of this case.

= on

(Supreme Court Opinion)

Mr. Justice ScHarFer, dissenting:

In my opinion the argument of the prosecutor: “As a

matter of fact the defendant is eligible for probation on

this case,” requires a reversal of the conviction. The

majority makes no attempt to justify ths argument and

its only purpose appears to be to diminish the jury’s

sense of responsibility by persuading them that a ver-

dict of guilty is not a significant matter because even

if he is found guilty ihe defendant is not going to be

punished. (See People v. Lynn (1944), 387 Ill. 549; Peo-

ple v. Klapperich (1939), 370 Ill. 588; Kelley v. State

(1936), 210 Ind. 310, 3 N.E. 24 65; People v. Smith

(1929), 206 Cal. 235, 273 P. 789.) This argument is, in

my opinion, clearly and deliberately prejudicial even if

the facts were as the prosecutor stated. In this case the

error is compounded, however, by the fact that the prose-

eutor’s statement was not true.

a,

APPENDIX B

(Letterhead of)

State or ILurnois

Office Of

CLERK OF THE SUPREME COURT

Springfield

62706

May 27, 1970

Hon. Gerald W. Getty

Public Defender of Cook County

118 N. Clark Street - Suite 1124

Chicago, Illinois 60602

In re: People State of Illinois, vs.

Vincent Cimino - No. 41706

Dear Mr. Getty:

The Supreme Court today made the following an-

nouncement concerning the above entitled cause:

“On the Court’s own motion the mandate is recalled

and stayed pending disposition of petition for re-

hearing.”

A certified copy of this order has today been for-

warded to the Clerk of the Circuit Court of Cook County

(Criminal Division).

Very truly yours,

/s/ Justin Taft

Clerk of the Supreme Court

AAMAS

—Sa—

S&S

APPENDIX C

(Letterhead of)

Srate OF ILLINOIS

Office Of

CLERK OF THE SUPREME COURT

Springfield

62706

October 6, 1970

Hon. Gerald W. Getty

Public Defender of Cook County

118 N. Clark Street

Chicago, Illinois

Dear Mr. Getty:

In Supreme Court today, in case No. 41706 entitled:

People State of Illinois,

appellee

vs.

Vincent Cimino,

appellant

Petition for Rehearing was: DENIED

Very truly yours,

/s/ Justin Taft

Clerk of the Supreme Court

Stok AhUnaD ih l BED ONO A ABBE TERA A SOOO RIND t

ee ee nae

—9a-—

APPENDIX D

Chapter 38, Illinois Revised Statutes, Criminal Law

And Procedure, Section 22-40:

22-40. Penalties.] § 38.

Whoever violates this Act by possessing, having under

his control, manufacturing, or compounding any narcotic

drug shall be fined for the first offense not more than

$5,000 and be imprisoned in the penitentiary for a period

of not less than 2 years or more than 10 years. For any

subsequent offense the violator shall be imprisoned in

the penitentiary for any term from 5 years to life. Any

offense under this Act is a subsequent offense if the

violator has been previously convicted of an offense un-

der this Act or any previous Act of this State relating

to narcotic drugs or of a felony under any law of the

United States or of the District of Columbia relating to

*marcotic drugs. No probation or suspension of sentence

shall be granted to any violator who has been convicted

of any subsequent offense.