Petition for a Writ of Certiorari — Wood v. Idaho

, Supreme Court af the United States’

— ul an 197 a ; 6

RANDOLPH prem! Woon, and

“ARTHUR ROMUALD DESCHAMPS, III°

_Petitioners, -

a

_vs.

STA“E OF IDAHO

* Respondent.

PETITION FOR WRIT OF CERTIORARI TO —

Seas SUPREME COURT OF THE STATE

. - OF IDAHO

| WAYNE iL. KweLL, ESQ.

* KIDWELL, MCKEE, QUANE & HARWOOD

- Sujte 414 Simplot Building —

_ Boise, Idaho 83701

Attorneys for Petitioners

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INDEX

TABLE OF CONTENTS

tions

Opinions Below ° po '

Juri

sdiction

Questions. Pr esented

Constitutional Pro: isions ai Statutes Involved

. Stat

canunt of Case © iy

Argument os ; eS.

App

App

App

endix A

(Constitution and Statutes set forth vérbatim)

endix B ada le of Idaho Supreme Court): .

endix C

“(Order Denying Pet rehg & ‘sa Remittitur)

a

a CITATIONS:

UNITED. STATES. CONSTITU TION:

Amendment 4 ,

/Amendment 14... de vie ae

+ UNITED. STATES STATUTES: :

“28 USC 1257

Cases: | | |

Aguilar ¢s. Téxas, 378 U.S. 108, 12-L. Ed.2d 723,

ys BE S.Ct 1509 we a

FEF eee Cliambe LS Us. James F. Masoney, 399 U. S. 42, |

26 L.Ed.2a. 419, 90 St. 1975 (1970) .

" Giordenello A nited States, 357 7 U.S. 480, "

' 2 L.Ed.2d 1503, 78°S.Ct. 1245 -

. Leonard vs. State of Oklah oma, 453 P.2d 257

7 (Okla., 1969)

Nathanson us. United States, 290 U.S, 41, 78 L.Ed.

159, 54 S. Ct. 11

Spinelli. vs. U ited bates: 273 U.S . 410, 21 L.Ed.

; 637, 89° S.Ct. 584 :

Whiteley Us. -W ardent of eianiiaiios State Pea., _.. __USB.

ae L. Ed. 2d 306, 91 S. Ct. (1m)

IN’? THE. -

_ Supreni Court of the Anited States

October Tefm, 1971.

No. raat

RANDOLPH DOUGLAS WOOD, and

ARTHUR ROMUALD DESCHAMPS, III

“e

Petitioners, -

=e pee Vs.

ae “STATE OF IDAHO

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE STATE

. OF) IDAHO i

OPINIONS BELOW

Defendants.herein were tried and ‘convicted, by

jury verdict, in the District Court of the Third Judi-

cial District of the State of Idaho, in and for the |

County of Washington, of the crime of possession of a

narcotic drug, to-wit: marijuana. There i is no opinion

from — trial court.

.The judgment of conviction was <saeubed to the Su-.

preme Court of the State of Idaho, which Court af-

firmed the conv iction. The opihion and decision of the

Idaho Supreme Court is not officially repor ted pending

', this Petition. It is, however, included herein as Ap-

- pendix B. Said opinion and dleciuion is unofficially re-

ported in Idaho Capital Reports, Volume 18, No. 84

at page 18 ICR 425.0 |

_ JURISDIC TION.

The. opinion ail decision of ‘the Supreme Court of .

the State of Idaho was filed July 30, 1971.

_ Said decision, according to Rule 45 of the Supreme

Court Rules of Idaho, became final upon the denial of

the Petition for Rehearing on September 27, 1971. On -

> October 19, 1971, the Supreme Court: of Idaho enter ed

its Order:

“That the Remittitur in this ‘action is hereby. recal-

led and that the Clerk ofthe District Court of the

Third Judicial District of the State of, Idaho, in and |

for Washington County, . return’. the Remittitur

dated September 27, 1971, to this’ Court, pending a

_ Petition. to the United States eupreie Court for

* Writ of Certiorari:’ .

-”~ Jurisdiction is invoked in this cause pursuant to 28

USC 1257.

QUEST IONS PRESENTED sia

Does sufficient prdébable Cause for issuance of a

search warrant and warrant for arrest exist wher e the

pee 7k

%

i

infor mation supplied the Magistr ate consists way of |

_ the officer-affiant’s statement that he received an All... ~.:

< Points ‘Bulletin ‘vadio | communication describing an,

automobile with two occupants believed to have mari-

~ juana in their possession and that he has picked up

two. men dr iving such an automobile? ‘ :

enn PROVISIONS 4 ANB

STATUTES INV OLVED' _

. The following Constitutional and Statutor y provi i-

. sions‘are set forth in Appendix A, infra:’ : t igh ea

UNITED. STATES. CONSTITUTION:

- Amendment 4

_ Amendment. 14 ae

UNITED STATES STATUTES:

28 USC 1257:

STATEMENT OF CASE |

Defendants her ein W ere tried and. convicted | of the

crime of possession of a narcotic drug, to-wit: Mari-

juana, and weré sentenced to imprisonment “in :the -

’ Idaho State Penitentiary for an indeterminate term of

not. to exceed five year's”, (Clerk's Tr. p. 41 and p. 43.)

In the fore-noon of May 4, 1968, James R. Johnston, |

Sheriff of Washington County, Idaho, Stopped at his |

office in the Courthouse to- pick up “some equipment”.

Preliminary. Heari ing Tr. p.-75, L. 6-8). While he was hed

. in the office, an All Points Bulletin was received. Tye

information. in the’ bulletin was convey ed to Sheriff

J ohnston who undet stood it to request that the she viff’s

. ees . /

| :

2

|,

office be on the lookout for “a green Mercury station

‘wagon pulling a U-Haul Trailer, that they were: pos-

sibly in possession of Narcotics.” (P H Tr. p. 75, L.

!°16-17). The information that was actually hand _re-

corded by Dispatcher Glen Bruce (PH Tr. P. 94, L.

-.7-8, was as follows: .

“5-4-68 10:46 A. Caldwell S. 0. A. P. B. Be on

_ lookout for SUB 24-25 YRS in °61 matlic’blue merc.

Montana lic 4-7154 pulling U-Haul Trailer Z-39978.

Motorcycle in trailer; has lots of mar iquana pills in

it. 5-4-68."

The actual writing is in evidence and is a part.of the

file available to this honorable court. On the Bulletin

were subsequent notations as follows:

1:32’ p.m. picked up at Weiser.” (P H.Tr. p. 93;

T+. p. 59, "L. 14-19).

The Sheriff, after. seihee been apprised of the All

Points Bulletin, met one of his Deputies, Mike.Wadley,

‘who was scheduled to go ¢ on patrol shortly. The Sher-

iff told De sputy Wadley, “. .. in a joking-way to do

something . . . to pick. them up.” (P H Tr. p. 108, L.

19-20). The Sher iff e xplained his lack of concern about

the Bulletin in the followi ing manner. at the Prelimi- ~

nary mearing: |

; But we get these bulletins all the time, as _

far. as s this woes, and one:or two an hour. Just in a

joking way I.told him to pick the vehicle up.” (P/H

Tr. p. 108, L. 20-22). .

Deputy Wadley, after, his brief discussion of the

APB with Sheriff Johnston, left in his patrol car with

4. ae io

another indiv idual, Mr. Ronald. Douglas, and they pr 0-

ceeded to go on patrol. Wadley and oo

-South. of Weiser, Idaho, in the general direction

Caldwell. As they were drivi ing south, they passed a |

vehicle traveling north and pulling a U-Haul Trailer.

Deputy Wadley, recognizing this might be-the vehicle

which was listed in the All Points Bulletin, turned

~. around and followed it. He followed the vehicle long

_ enough to identify the license number on the U-Haul

Trailer as being the one that was listed on the All

Points Bulletin. Once the vehicle crossed into Wash-

ing County, he-stopped it. (P H Tr. p. 140, L. 15-16).

Deputy Wadley and Ronald Douglas got out of the

patrol car and begun walking toward the car and trail- .

er (P H Tr. p. 11, L. 11-14). Wadley asked to se the

\ driver's license of the driver of the automobile, which

was given to him (P H Tr. pp. 18, 65, and 152), and

then Deputy Wadley and Mr. Douglas frisked the de-

fendants. (P H Tr. p.,65: P-H Tr. p. 152, L. 24-25).

Deputy Wadley then asked the defendants if ‘they

could search the car (P H Tr. p. 11, L. 16-17); de-

fendants refused to allow the search (P H Tr. P. 12,

L. 11-13; Fr. p. 62, L. 14-16).

Deputy Wadley advised the defendants they werg

‘suspected of having marijuana in their possession,

read them their rights, friskéd them, and. took their

driver's license (Tr. p. 61, L. 12-15). He told them

“they were being held on an All Points Bulletin (P H

Tr. p. 156, L. 18-19 and P H Tr. p. 157, L. 7-10), and |

instructed them to “follow me” (<P H Tr. p. 160, L.

13-15) to the Sheriff's Office. The defendants indicated

that they were having motor trouble, and if the ear

oe ooo

e

had to be moved one of them would prefer to drive it. °

CF/ Tr: p12, L. 19-21). After a brief discussion,

Deputy Wadley and Mr. Douglas suggested to the de-

fendants that one of the defendants drive the car back.

to towh with Deputy Wadley riding with him (so that

nothing could be thrown out of the ear) (P H Tr. p.

63, L. 12-15) and that the other boy ride in the patrol

ar, which was’to be driven back by Mr. Douglas, It

is important to note, at this point, that both the depu- -

ty and Mr. Douglas insisted that they had not placed

the defendants under arrest and that the defendants

could have refused to go With them. (P H Tr. pp. 12,

14, 21, and 27). On the other hand, the Officer’s re-

port (P H Tr. p. 17) shows the time of arrest as -

11:30 a.m., which is when Deputy Wadléy testified

that he stepped the defendants on the highway. After

- the procession reached the Sheriff’s Office, the defen-

dants were placed in a small room and “asked” to

stay unti! between 3 and 4 p.m., when they were offi-

cially arrested. (P HTr. p. 22).

For purposes of this Petition, the facts which trans- ~.

pired from the time of the stopping of the’two defen-

dants at.11:30 a.m. until their official arrest at around

4 p.m. are most important: After Deputy Wadley

’“asked”’:the defendants to follow him to the Sheriffs ~~

. Office and kept them in the Sheriff’s Office until some- ~

time around 4 p.m., certain steps were-taken to cloak —

the already accomplished arrest. with legality and to

obtain a Search Warrant, which Petitioners contend -

were illegal and violative of their rights.

. By Deputy Wadiey’s own testimony, he had no rea-

| son to stop the. defendants except ad the “All Points

~~

>

Bulletin. On page 25 of the Transcript of the Pre-

liminary Hearing the following exchange took .place

' between counsel for defendants and Deputy Wadley:

“Q. And if I understand your testimony, the reg-

‘son that you did hot arrest the defendants out on the

highway and waited until you had conducted your

search was that you didn’t feel that you had any prob-

able cause to make the arrest w hen you stopped them

on the highway. . .

A. No. The reason I stopped them was just to check

them out on this bulletin. °

MR. KEAST: Would: you answer that question

specifically.

A. The only cause | had 4 Was the bulletin.

Q. In other words, you didn’t feel — at that time ©

you did not have probable cause.

A. No, I didn’t have no reason to arrest them, no,

sir.”

As soon as Deputy Wadley and Mr. Douglas had the

defendants lodged safely in the Sheriff's Office they

contacted Sheriff Johnston. Sheriff Johnston was at

home with Deputy Joe Wilson, and they both came

‘ immediately down to the-Sheriff’s Office. (P H Tr. p.

74). Upon his arrival at the Sheriff's office, Sheriff

Johnston asked the defendants if they had been ad-

vised of their rights (P H Tr. p. 76) and, before talk-

ing with them, advised them of their rights. (P H Tr.

p.76). The Sheriff asked the defendants if he could

“ search their car: and when they refused (P H Tr. p.

77, L. 3- 7), he immediately left with one of the Depu-

_

ties to obtain a Search Warrant and various other

papers. He left the two defendants in his office with

two regular deputies and Mr. Douglas (P./H Tr. p.

85).

Sheriff Johnston -w vent immediately to the Prosecut-

ing Attorney and requested that the Prosecuting | At-

torney prepare the necessary papers to support a

Search Warrant and a Warrant for Arrest. The Pro-

secuting Attorney prepared, for the Sheriff’s signa-

ture,. a Deposition of Facts in Support .ef- Search ~~~

Warrant and an Affidavit for Search Warrant. The

only information or basis for requesting the prepara=

tion of the Deposition and Affidavit was the All Points

Bulletin. (P H Tr. p. 90,.L. 20-23; p. 91, L. 1-8; p. 94,

L. 16-17; p. 110, L. 19-25; p. 111, L. 1-18). The Depo-

sition ‘of Facts in Support of Search Warrant reads :

as follows:

“QU EST ION: What is your nameg,- address and

occupation?

A. James R. Johnston. I live at . Rewte 1, Weiser,

- Idaho, and am the Sheriff of Washington County,

Idaho. . e

Q. What reason did you _om for the arrest of the

above named defendants or either of them?

A. We picked up an: All-Points Bulletin by police

radio put out by Canyon County_Sheriff’s Office des-

cribing an automobile-as a 1961 Mei ‘cury Station Wa-

gon, metallic green in color, Montana license +4-7154

- and pulling an orange colored U-Haul trailer, 2-wheel,

~ Washington license = Z 39928, and advising that the

occupants were believed to have marijuana in their

—

possession and the occupants of said automobile were.

deser ibed as two male subjects.

Q.- Where were these two men picked “

A. They were traveling noith on ‘U. 8S. Highway

95 approximately five miles south of, Weiser, Idaho,

- and were stopped at 11:30 A.M. by Deputy Sheriff

Mike Wadley, May 4, 1968, at which time the suspects—

were brought to the Sheriff’soffice at Weiser, Wash- _

“ington. County, Idaho, and at which time they locked

the automobile and refused to permit the deputy sher-

iff to search said automobile.”

s- James R. Johnston

¢ Subscribed and sworn to before me this the 4th day

of May, 1968.

s Don Henderson

Probate Judge

The Affidavit for Search Warrant ‘prepared for the

“— signature of the Sheriff reads as follows: 7

“STATE OF IDAHO |:

County of Washington: ss.

James R. Johnston, being duly sworn, on oath de-

poses and says that he is the hrs elected, qualified

and acting Sheriff of Washjngton County, State of

Idaho; that certain personal property, to-wit: Mari-

juana, is now alleged to be i in the possession of said —

- Arthur Romauld Deschamps, III and Randolph —

Douglas Wood, situate in the automobile belonging

to Randolph Douglas Wood, described as a 1961

co ee ;

Mercury Station Wagon, metalic: green in ‘color, ..

Montana license .+4-7154: and pulling an-erange

colored U-Haul trailer, 2-wheel with Washington

‘license Z 39928, With ‘the intent thereof to use the

same as a means of committing a public offense, to-

wit: the offense of having .narcotics, to-wit: mari-—

Juana, in their possession. ,

All of which is contrary to the {o0n, force and effect

~ of the statute in such a case 1:9 ic and provided, and

against the peace and dignity of the people of the

State of Idaho. And this affiant prays a search war-

rant issue and the above device be brought before

a magistrate and disposed of according to law.”

s James R. Johnston

Subscribed and sworn before men this 4th day of

May, 1968. . © e

~ s . 8 Don Henderson .

' Probate Judge ~

After obtaining the : papers from the Prosecuting

Attorney’s Office, the Sheriff “contacted the Probate

Judge, who was home since it was a Saturday, and told

him he wanted him to issue a Search Warrant and a-

‘Warrant for Arrest. The Probate Judge indicated that

all of his papers were at the Courthouse.and asked the

Sheriff if he would take him to the Probate Court at .

the Courthouse. The Sheriff took the Probate Judge

to-the Probate Courtroom in the Courthouse and there,

in the presence of the-Probate Judge, signed the Depo-

sition of Facts in Support of Search Warrant and

Affidavit for Search Warrant, set forth above, and re-

a Ta

quested that the Judge issue, at that time, a Search

‘Warrant and Warrant for Arrest. The Sheriff, in the

_Preliminary Hearing, testified that Judge Henderson

read the’ papers over and signed them@pithout corit-

ment. (P H Tr. p. 95, L. 14-21; p. 99; L. 23-25: p. 100, .

LL: 21-25; p. 101, L. 1-25; p. 102, L. 1-22).-

When the'trial court heard arguments of counsel on .

defendants’ Motion to Quash the Search Warrant,

‘Motion to Quash the Warrant of Arrest, and Motion

to Suppress Evidence, Judge Henderson was placed

under oath and examined by both the State and the

defense. His testimony can be found on pp. 4-14 of the

- Transcript of the Trial. Close examination of Judge

‘ Henderson's testimony will reveal that, while he says

he had some discussion with the Sheriff, he relied

strictly on the information given him by the Sheriff

and contained in the Depositien and Affidavit. (Tr. p.

11, L. 9-25). Since the Sheriff testified that the sole

basis for his obtaining the Search —— was the

All Points Bulletin (PH Tr. p. 90, L: 20-23 ;/p. 91, L.

1-8; p. 94, L.'16-17; p. 110, ‘L. 19-25; p. 111, L..1-18),

the All Points Bulletin then had to be the sole basis for

Judge Henderson's decision to issue the Search War-

rant and Warrant for Arrest. “-

At the Preliminary Hearing, the Sheriff testified

that Judge Henderson. signed the Warrant for Arrest

"at the same time he signed the Search Warrant, and —

left both documents with him. (P_H Tr. p. 109, L. 17-

25; p. 110, .L.°1-25). Judge Henderson testified that

the Search Warrant was first- issued while he was in

his office and later, from his home, after certain items

were found as a rgsult of the search, he. issued the

—ll— .

_ Warrant of Arrest. (Tr. p. 7,'L. 13- 27). The wuitgloes

‘as to when the’ Wafrant . Arrest was issued is fur-

‘ther compounded by the fact. that Sheriff Johnston -

at the Preliminary Hearing,- after repeated question-

ing, consistently indicated that once the items were

found which were believed to be marijuana, he im-

- mediately served a Warrant of Arrest: (PH Tr. p. 79,

L. 4-6; p. 109, L. 17-25; p. 110, L. 1-15; p. 170, L. 1- ,

13). In any event, there ig no question from the testi-

.mony taken, that Judge Henderson relied wholly upon

Si the knowledge of the Sheriff for the issuance of the

documents, and that the Sheriff’s knowledge was based

entirély | upon the All Points Bulletin.

Once the Sheriff had obtained the Search Warr ant,

he took it back to the defendants, who were still being

- held in the Sheriff’s Office, and presented it to Mr.

Wood, the.driver of the car, and searched the car and

trailer. He found a-can of substance he thought to: be

_ marijuana and he thereupon arrested the defendants

and continued the search of the car, eventually find- .

ing additional substances, which, over objection, were

admitted in evidence at the trial as, marijuana.

"ARGUMENT

By its opinion ae decision (Appendix B) the Idaho

Supreme Court has effectively held that a search con-

ducted at the stationhouse more tan four hours after

the actual arrest is nevertheless lawful, w here a search

warrant is issued. based upon testimony that 1) the

affiant-officer received an APB describing an automo-

bile with two occupants believed to be in possession of

Re ee

e

marijuana, and 2) -that the affiant had “picked up,

the two men. :

Petitioners contend such a holding is contrary to

applicable decisions of this court cited herein, partic-

ularly Spinelli vs. United States, 273 U.S. 410, 21 L. »

ed. 637, 89 S.Ct. 584. ae

Obviously, the tardy stationhouse search cannot be

‘considered as “incident” to: the ‘warrantless arrest:

and consequently, the question of whether the APB:

was actually founded upon probable causé so as. to

justify a warrantless arrest and incidental search be-

- comes irrelevant. As a result, the search warrant and

subsequent search must stand independently the test

‘of “probable cause”. |

Unlike the factual situation presented in Frank

Chambers vs. James F. Maroiey, 399 U.S. 42, 26 L.

Ed.2d. 419, 90 S.Ct. 1975 (1970), this was not a-war-.

rantless search which can be justified upon the same

“probable cause” existing for the warrantless arrest.

Thig court’s opinion in Chambers. does not purport to.

answer the question hereih, namely the legality of a

subsequent. search pursdant te warrant w here inade-

quate and insufficient .s:rorn information is presented

to the issuing Magistrate. . Cink

The original informant w as completely “unknown,

and unidentified” to the issuing Magistrate—Hender-

son, as well as the Sheriff. The Affidavit for Search

Warrant and Deposition of Facts in Support of Search

Warrant, both submitted by the Sheriff (who Was not

the actual. arresting officer), essentially convey ed to

the Magistrate the information that:

a ‘ee

1. A radio message had been. received alleging that

a certain automobile’ contained marijuana, and

2. That the Sheriff had ‘ wicked up” two men travel-.

.ing north in an automobile fitting the description

given in the alos message. |

| In Aguila US. Texas, 378 U. S. 108, 12 Kd. ed. 728,

84 S. Ct. 1509, this Court stated:

“In Nathanson v United States, 290 U:S. 41, 78 L.ed.

159, 54 S.Ct. 11, a warrant was issued upon the .

sworn allegation that the affiant ‘has cause to suspect

and does believe’ that. certain merchandise was ina. |

specified: location. Id., at 44, 78 L.ed. at 160. The’

-.. Court, noting that the affidavit ‘went upon a’ mere

affirmation of suspicion and belief without any state- —

ment of adequate supporting facts, id. at. 46, 78

L.ed. at 161 (emphasis added), sinnounced the fol- .

lowing i, a te e . ;

“Under the Fourth Kontuitiieat: an officer may not

properly issue a warrant to search .°. . unless he

can find probable ‘cause therefor from facts or cir-

~scumstances presented to him under oath or affirma-

- tion. Mere affirmance of: belief or ‘suspicion is not -

enough.’ Id.,- at 47, 78 Lied. at 162. (Emphasis

_ added. )”’ | | '

There are absolutely. no facts recited in the Sheriff's °

Affidavit upon which his belief’was. founded and mere. .

belief or suspicion is not enough. In the case of Whit-.

ley -vs.. Warden of Wyoming State. Penitentiary, —

OR. Sgeiae ra 28 L. Ed.2d 306, 91 S. Ct. 1031 nih this

Court held:as follows: |

14 hes

oe |

“The decisions of this ee concerning ~ Fourth

Amendment probable cause requirements - before ‘a

- warrant for either arrest or search can issue require

‘that the judicial officer issuing sucha warrant be

supplied ‘with. sufficient infor mation to support an

independent judgement that probable cause exists

for the warrant. (citing cases) :,. That complaint

consists of nothing more than the complaintant’ s con-

clusion that the individuals named therein prepetrat-

ed the offense deser ibed in. the complaint. The actual _

-basis for Sheriff Ogburn’ s conclusion was an inform- |

er’s tip, but that fact, as well: as every other opera-

-tive’ fact, is omitted from the complaint. Under the

‘cases just cited, that doeunient alone could not sup-

port the independent judgment of a disinterested

magistrate.”’

In Spinelli vs. United States, supra, there is a dis- -

‘ cussion: of what information must be brougnt before

a magistrate:

“What is. missing in Nathanson and like cases is a

~ statement of the basis for the affiant’s believing the

facts contained in the affidavit—the good ‘cause*

which the officer in Nathanson said he had. If an

cfficer swears ‘that there is gambling equipment at

"a certain address, the possibilities are (1) that he

has seen the equipment; (2) that he has observed or

perceived facts from ‘which the: presence of the

equipment may reasonably be inferred; and (3)~

. that he has obtained the information from someone

else. If (1) is true, the affidavit is good. But in (2)

_ the affidavit is insufficient unless the perceived facts

are given, for it is the magistrate, not the officer,

ae |

who is to judge the existence of probable cause. (cit-

ing cases) With respect to (3), where the officer's

‘information is hearsay, no warrant should issue

absent good cause for erediting that heresay. Be-

cause ‘an affidavit asserting, without more, the lo-

~ gation of gambling equipment ai a particular address

does not clainr personal observation of any of the

‘facts by the officer, and because of the likelihood that

_the information came from ea unidentified third

party, affidavits of this type are unacceptable. (em-

phasis added }.

“Nejther should the warrant issue if the officer

states that there is gambling equipment in a par-

- ticular apartment and that his information comes

from _an informant, named or unnamed, since the

honesty of the informant and the basis for his re-

port are unknown. Nor would the, missing elements

‘be completely supplied by the officer's oath that ‘the

- informant has often furnished reliable information

in the past. This attests to the honesty of the infor-

mant, but Aguilar v Texas, supra, requires some-

thing more—did the information.come from obser-

vation, or did the informant in turn receive it from ~

another? Absext additional facts for believing the —

-informant’s report, his assertion stands no better

than the oath of the officer to the same effect. Indeed,

if the affidavit of an officer, known hy the magistrate

to be honest and experienced, stating that gambling

equipment is located in a certain building is unac-

ceptable, it would bé quixotic if a similar statement

from dan honest informant. were found to furnish :

probable cause.‘A strong argument can be made that te

both should be acceptable under the Fourth Amend- F

_

_ ment, but under our cases neither i is. The past relia-.

_ bility of the informant can no more furnish probable

cause for believing his current report than can pre-

_vious experience with the officer himself,

“If the affidavit rests on hearsay—an informant’s

report—what is necessary under Aguilar is one of -

two things: the informant must declare either (1)

that he has himself seen or perceived the fact or facts

asserted: or (2) that his information is hearsay, but

there is good reason foy believing it—perhaps one of

the usual grounds for crediting hearsay information.

The first presents few problems: since the report,

although hearsay, purports to be firsthand observa-

tion, remaining doubt centers on the honesty of the

informant, and that worry is dissipated by the of-

ficer’s prev ious experience wath the informant. The

’ other basis for aecepting the informant’s report is

. complicated. But if, for example, the inform-

er’s hearsay comes from one of the actors in the

crime Wy the nature of admission against interest,

the affidavit giving this information should be held

sufficient.” : s

Contrary tv the implication of the Idaho Court,

Petitioners contend the Whitely case does not hold that

an. APB is ipso*facto sufficient probable cause before

a Magistrate: ,

“We do not.of course question that the Laramie

police were entitled to act on the strength of the-

radio bulletin. Certainly police officers called upon to

aid other officers in executing arrest warrants are

7 i

entitled to assume that the officers requesting aid

offered the magistrate the information requisite to. ;

_ support.an independent: judicial assessment of prob-

able cause. Where, however, the contrary turns*out

* to be true, an otherwise illegal arrest cannot be in-

sulated’ from challenge by the decision of the insti-

- gating officer to rely on fellow officers to make the

arrest.”

In this case, no source information of any type was

viigred to the magistrate who issued the Warrants by

the officer requesting aid in the all points bulletin. The

All Points Bulletin was issued without any information.

having been given to a magistrate. The issuing magis-

trate did not receive any information concerning this:

purported crime until after the All Points Bulletin was

issued and arrest had beers made. In this case, obvi-

ously, the officers eequesting the aid had not yiven suf-

ficient. assessment of probable cause prior to the

issuance of the All Points Bulletin. The only judicial

assessment of ‘probable cause came after the issuance

of the All Points Bulletin. _ °

_ We would respectfully submit that the Idaho oo is

cision in this matter is contrary to the-Spinclli case

and constitutes a misinterpretation ‘of the Whiteley - ‘\

holding of this court and should therefore be reviewed. .

‘WHEREFORE, Petitioners pray for issuance of a- .

Writ of Certiorari to the Supreme Court of the State ©

of Idaho.

eat” Ue

DATED ‘this 20th day of December, 1971.

Respectfully submitted ™ es

KIDWELL, McKEE, QUANE & HARWOOD

By .

~ Wayne L. Kidwell, Of the Firm

Suite 414 Simplot Building

Boise, Idaho 83701

Attorneys for Petitioners:

I herein certify that on the _._ __ day of Decem-

ber, 1971, I served three true and ‘correct copies of the

foregoing Petition for.Writ of Certiorari by mail, post- —

age prepaid, on the Attorney General of the State of

Idaho and the Prosecuting Attorney of Washington

County, State of Idaho.

a

Wayne L. Kidwell

Se

" APPENDIX: A

United States Constitution, Amendment Four:

-

“The right 6f the people to be secure in their persons,

houses, papers and effects against ‘unreasonable

searches and seizures shall not be violated and no

warrants shall issue but upon probable cause sup-

ported by oath or affirmation and particularly de-

_ seribing the place’ to be searched and persons or

things to be seized.” - i eee

United States Constitution, Amendment Fourteen:

“Section . (CITIZENSHIP DUE PROCESS OF

LAW — EQUAL PROTECTION.) — AIl persons

born or naturalized in the United States, and subject

. to the jurisdiction thereof, are citizens of the United ©

States and-of the state wherein they reside. No state.

shall make or enforce any law which shall! abridge

the privileges 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 person within its jurisdiction the équal

protection of the laws.”

_ . United States Statute, 28 USC 1257: .

“STATE COURTS” APPEAL; CERTIORARI. *

Final judgments or decrees rendered by the highest

court of a State in which a decision could: be -had, .

may be reviewed by the.Supreme Court as follows: :

(1) By appeal, where is drawn in question the val-

idity of a treaty or statute of the United States and the

decision is against its validity.

7 iA AM :

(2) By appeal, where is drawn in question the val-

‘idity of a statute of any state on the grounds of this be-

ing trepugnant to the Constitution, treaties or laws

of the United States, and the decision is in favor of its

-validity.

(3) By writ of certiorari, where the validity of. a

- treaty or statute of the United States is drawn in ques-

tion @g where the validity of a State statute is drawn...

in question on the grounds of its being repugnant to the

\

Constitution, treaties or laws of the United ‘States, or

’ where any title, right, privilege or immunity is speci-

ally set up or’clatmed under the Constitution, tyeaties

or statutes of, or commission held or authority exer-

cised under, the United States.” |

2

APPENDIX Bo

IN THE SUPREME COURT OF THE

STATE OF IDAHO

No. 10849 .

STATE OF IDAHO,

Plaintiff- wins eaten

~.

“ARTHUR ROMUALD DESCHAMPS, III

and. RANDOLPH DOUGL AS WOOD,

Defendants-Appellants. .

Boise, May. Term, 1971

’ Filed, July 30, 197} |

R. H. Yoting, Clerk, ia

Appeal from the District Court of the Third Judicial

District of the State of Idaho, Washington County.

~The Honorable Edward J. Lodge, District: Judge.

Appealed from judgment ‘of conviction of possession

- of marijuana, affirmed.

Wayne L. Kidwell and Walter H. Bithell, Boiee,: for. .

~ appellant Arthur Romuald Deschamps, III; and

“Ryan & Sweet, Weiser, and Anthony F. Keast, Mis-

soula, Montana, for appellant Randolph Douglas

~ Wood.

WwW. Anthony Park Aeeesy General, Martin R.

Ward, Deputy Attorney General, and Charles P.

- Brumback, Assistant Attorney General; State of

Idaho, Boise, and Frank H. Joseph, Prosecuting —

Attorney for Washington County, Weiser, for re- .- -

- gpondent. . 7

SPEAR, J. ag! ee Bee tela

eS 13

- 4 e

~ On May 4, 1968, the sheriff's office in Washington

County received.an all points bulleffh (APB) which _

‘provided the license number and description of a ve-

hicle suspected of transporting marijuana and other

narcotics. Having been apprised of the \APB, Deputy

Wadley went on patrol accompanied by Ronald Doug- ~

las. The deputy, observed the suspect vehicle and

stopped it at approximately 11:30 a.m.

Appellants were the occupants of this automobile.

Deputy Wadley advised them that they were suspected

of. possessing marijuana, read them their rights, and

frisked them. The deputy then requested appellants’

permission to search the atitomobile which they_re-.

fused. Wadley informed them that they were being.

detained. — me

Appellants were then taken to the sheriff's. office,

with Douglas driving appellants’ vehicle. After Deputy

‘Wadley and appellants. arrived at the sheriff’s office?

‘the sheriff requested the prosecuting attorney to pre-*:

-pare the necessary paper's to support the issuance of a.

search warrant and a warrant of arrest.

These papers were presented to the probate judge

who issued a search warrant and, later, a warrant of

arrest. Appellants assert that the information eon-.

tained in the unsupported APB was the-only evidence

presented to the probate judge to establish probable

_cause, and that it was insufficient primarily because it °

was based’on. hearsay. The, State, however, contends —

‘that the information initiating the. APB was supplied

by a hitch-hiker given a ride by appellant, and‘this was

also divulged to the probate judge.

2B -

—_— j++

At trial, appellants asserted the illegality of the ar-

‘rest and search, but the district court denied various

motions based upon, these objections, Upon a jury trial

appellants were convicted of possession of mar ijuana.

Judgment of conviction Was entered on the verdict and

each was sentenced to an indeterminate term not to

exceed five years in the Idaho State Penitentiary.

. eee t

On appeal,. aside Rui continue these objections

through assignments of error, all on the basis that’ the

APB received by the* Washington County sheriff's

office does ngt provide ‘probable cause for their arrest

or the issuaifée of a search, warrant. It is our conclu-

sion that an official police communication does provide

probable cause for either purpose so long as the com-

munication itself is based upon sufficient. Entormatzon

to constitute’ probable cause.

!

Respondent ia several recent cases in Which courts’

have found that a police Communication will satisfy

the constitutional probable cause requirement if it was.

issued with probable cause: These cases are: United

States v. Avers, 426 F.2d 524-(2d Cir. L970); Coleman

v. United States, - 420 F2d 616 (D.C? Cir, 1969); Ojeda

Superior Court, In. and For County of Monterey, 91

Cai Rep. 145, 12 Cal. App. 3d 909 (1970). In the case

_at bar the informationwhich precipitated the is ssuance

of the APB was supplied by a known and identified in-

formant who had personally ‘seen the marijuana in the 7

possession of the appellants. This provided ‘a valid

basis to issue the APB-and Ostablished probable cause: *—

for the subsequent arrest and ° neneree of the search

warrant. : a

3B \

esicaie cite Whiteley v. Warden, Wve oming State

_ Penitentiary, +—U. 8. -, 91 §. Ct. 1031, .28

L. Ed.-2d : 306 (1971), as supporting their contention —

that an APB cannot supply. pr obable cause for a war-—

rantless arrest unless the arresting officer knows the

facts causing its jssuanee. We cannot agree that Whit-

ley can be so interpreted. That case concer ned a situfa-

tion where the Court found the infor mation supporting

the communication had been supplied by an undis-

closed infor mant, that it was inadequate and that the

ensuing arrest on the strength of such communication

~ was without probable cause. However the ioe also

: stated : .

“We do not of. course » question that the Lari amie |

police Were entitled to act on the strength of the

radio bulletin. Certainly police officer's called upon

to’ aide other officers in executing arrest warrants /

aye entitled’ to assume that the officers requesting

aid offered the magistrate the information requisite

to: support an independent judicial assessment of

probable cause. Where, however, the contrary turns

- out to be true, an otherwise: illeg ‘al arrest cannot be

insulated from challenge by. the decision of the in-

, esaeg officer to rely on fellow officers to make the

arrest.” — paces S: at ———

Thereforé, the United States Supreme Court has not

disturbed those decisions which hold that there is pro-

bable cause for a w ai'rantless arrest on’the basis of an_

official policecommunication supported by information

itself reliable enough ‘to supply probable cause. Fur- |

thermore the conclusion to be reached from the above

“4B

\ ee. “e

quoted language is that the Court has specifically

_ sanctioned such procedure. eae i

Since the APB provided probable cause for the war- -

rantless arrest, we find:that there was ‘also probable |

cause for the issuance by. the probate judge of the

search wayrant and subsequent. warrant of arrest. At

the pretrial conference Pi ‘obate Judge Henderson tes-

tified: a eo ;

~-Q. Well, I will withdraw that quéstion. Will you \

tell the Court,.if -you will, the’ whole extent of the

conversation that the sheriff revealed to you as to

any facts prior that he revealed to you concer ning

this thing in the all points es any information

he g gave you? . -

“A. The ‘position - of the mar ijuana Was men-

tioned and that the hitchhiker had told whoever had

the -all points bulletin put out, had told those people

that there was marijuana in possession and that the

“hitehhiker himself had a marijuana With him and

was possibly in his shirt pocket, if I remember cor-

rectly, and he had a pill i in bis shoe. Those two things

struck me as odd.”

Not only did the probate judge have the information in

the APB befove him, which, we feel would have been .

sufficient, but he w as also informed .of the spurce of

the communiéation. :

Judgment of the distri ict court affir med.

, MeQUADE, Cia. McF ADDEN, DONALDSON and

SHEPARD, JJ., coneur, |

9 ‘ e

5B

APPENDIX C.

_ In the Supreme Courf of the State of-Idaho ~

- STATE OF IDAHO

he alee ei

i

ec. ARTHUR ROMUALD DESCHAMPS, Hl,

and RANDOLPH DOUGLAS, WOOD, .

Defendants-Appellants.

Justice Spear announced the decision in- this cause

July 30, 1971, and on denial of Petition for Rehear-

ing, September 27, 1971, te the effect that the judg-

ment of the District Court of the Third Judicial ‘Dis-

trict of.the State of Idaho, Washington County, is af-

_ firmed. . ‘

IT 8 NOW THEREFORE SO ORDERED: :

_ 1, R. EB. Young; Clerk of the Supreme Court of the

State © aho, do hereby certify that the above is a _-

> aed and correct: eopiy of the judgment entered in thé

“Above entitled cause September 27, 1971, and now of —

- yecord in my office. . :

WITNESS My: hand: “and the seal of this Court,

. ‘September 27, 1971.

R. H. YOUNG, Clerk

- By Ruth A: Williams, Deputy