Petition for a Writ of Certiorari — Harness v. Kentucky

MAY 13 1972

MICHAEL RODAK, JR.,CLERK

(SO PY IN THE

Supreme Court of the United States

1971 TERM

Epaar EvuGenrt Harness, JR.,

Petitioner,

it

COMMONWEALTH OF KENTUCKY,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE COURT OF APPEALS OF KENTUCKY

Astor Hoaa

CREECH, Hoca & JOHNSON

Box 150

1107-1109 Second National

Bank Building

Ashland, Kentueky 41101

Attorneys for Petitioner

—

INDEX

PAGE

Citation to Opinion Below ©... 1

Demy iain nrnsnnessssesncenseseenttneasorsornenncmnonnenns 1

Question Presented ......oc.cvcsnnsnnnnnnnnmemnnnsinni 2

Statement of the Case ... EOE Oe OTE 2

(a) Nature of the Case and

Course of the Proceedings ..cccccccccccneesesnen 2

(b) Statement of the Facts .....ccccsnnnrnnenennenmen 3

Reasons for Granting the Wit 1... ..cccccccosemsmsnseneen 5

The Court should grant certiorari to determine

the substantial federal question, whether the

Fourteenth Amendment denies State Police

Officers the right to use entrapped evidence or

information obtained during the course of a

scheme of entrapment in an affidavit to sup-

port the issuance of a search Warrant. 0.00000 5

OLE LALIT LE DOAN diactshgscnescanh 12

Appendix on nsnmssinsmmeenmnninnanneiemnnimsrennnaninanni 13

Judgment of the Rowan Circuit Court. ............ 13

Opinion of the Court of Appeals of Kentucky

as modified on Denial of Rehearing 0.0.0... 15

Mandate of the Court of Appeals of Kentucky

(Judgment) ...ccecccsccnee : 25

Excerpts From Transcript of Evidence at Pe-

titioner’s Trial, Rowan Circuit Court,

Dry BE, RTO nannies erences 26

be...

Ps 1 acaba SIS ITS

ii

PAGE

AUTHORITIES CITED

Cases:

Aguilar v. Texas, 378 U.S. 108 (1964) 0... 6,7

Berkshire v. Commonwealth, (Ky.) 471 S.W.

BN CS | cicnisscrenrtciesiesiaceesniceeneen 7

Clay v. United States, 246 F. 2d 298 (5th Cir.),

cert. denied 355 U.S. 863 (1957) a 6

Griffey v. State, (Tex.) 327 S.W.2d 585 (1959) °. 10, 11

Kenney vy. United States, 157 F. 2d 442,

PR I IE Sadicncencpeccescsnten ctcnieninctnigtescinee 10

King v. United States, 282 F. 2d 398,

ci ste cecalseccy masoionm 10

Mapp V. Ohio, 367 U.S. 643 (1961) occ seseeenneee 9

Mooney v. Holohan, 294 U.S. 103 (1935) once 6

Napue v. Illinois, 360 U.S. 264 (1959) once 6

Nardone v. United States, 308 U.S. 338 (1938) ...... i)

O’Bean v. State, (Miss.) 184 So. 2d 635 (1966) .... 10

Owens v. State, (Tenn.) 399 S.W. 2d 507 (1965) .. 10

People v. Alfinito, 211 N.K. 2d 644 (1965) 2... 10, 11

People v. Bak, (Ill.) 258 N.K. 2d 341,

cert. denied, 400 U.S. 882 (1970) once wy)

People v. Mitchell, (Ill.) 258 N.E. 2d 345,

cert. denied, 400 U.S. 882 (19TO) wince i)

Rugendorf v. United States, 376 U.S. 528 (1964) .. 6

Seott v. Commonwealth, (Ky.) 197 S.W. 2d

774 (1946) 5

Seager v. State, (Ind.) 164 N.E. 274 (1928) ........... 10

Sherman v. United States, 356 U.S. 369 (1958) .... 8

>

ili

PAGE

Silverthorne Lumber Co. v. United States,

ee 7 een 9

Smith v. State, (Md.) 62 A. 2d 287 (1948) ............. 10

Sorrells v. United States, 287 U.S. 435 (1932)... 8

Southard v. State, (Okla.) 297 P. 2d 585 (1956) ..... 10

Spinelli v. United States, 392 U.S. 410 (1969) .... 6,7

State v. Stevens, (Mo.) 292 S.W. 36 (1927)... 10

State v. English, (Mont.) 229 P. 727 (1924) ......... LO

Street v. New York, 394 U.S. 576 (1969) oo. 5

Thacker v. Commonwealth, (Ky.) 17 S.W. 2d

ee ee, 8, 10

Thompson v. Commonwealth, (Ky.) 472 5.W.

| Ee 8 SARIS Reso inate eee eno 7

United States v. Brunett, 53 F. 2d 219,

4 eS 5 RR ereeenenentoeenonne 10

United States v. Ramos, 380 F. 2d 717,

PR TN aici rsp ceistaniesiblcnivnenabt 10

‘United States v. Roth, 391 F. 2d 507,

REIN neuer ein sence ennen 10

United States v. Ventresea, 380 U.S. 102 (1965). .... 6, 7

Weeks v. United States, 232 U.S. 383 (19138) oo... )

Wong Sun v. United States, 371 U.S. 471 (1963) .... 9

Statutes:

Cal. Pen. Code §$§ 1539, 1540 (West 1970)... 10

I coe ca msoocetesogeindlionden 1

Miscellaneous Authorities:

We Diary. Ti, They. CRD COTA) innenc.sicsccicsnsercccescsssncccnscseennse 5

S7 Colum. L. Bev. 1528 (1967) ........................ 5

er ee, Bs, BV. OR CTR) oicsiiceiscseienscessscceninsossietesisctine 5

1

IN THE

Supreme Court of the United States

1971 TERM

Epaar EvuGeNnet HARNESS, JR.,

Petitioner,

—V.—

\ ; \ 7 hl A K ch aa a Pa

COMMONWEALTH OF KENTUCKY,

Respondent.

eGe

PETITION FOR WRIT OF CERTIORARI TO

THE COURT OF APPEALS OF KENTUCKY

Petitioner, Edgar Eugene Harness, Jr., prays that

a writ of certiorari issue to review the judgment herein

of the Court of Appeals of Kentucky entered in the

above styled case on February 18, 1972.

Citation to Opinion Below

The opinion of the Court of Appeals of Kentucky is

reported at 475 S.W. 2d 485, and printed in the Ap-

pendix, infra, pp. 15-24. It affirmed the judgment of

the Rowan Circuit Court, which is printed in the Ap-

pendix, infra, pp. 13-14.

Jurisdiction

The final judgment of the Court of Appeals of Ken-

tucky was entered on February 18, 1972. The jurisdic-

tion of this Court is invoked under 28 U.S.C. See-

tion 1257 (3).

2

Question Presented

Does the Fourteenth Amendment deny state police

officers the right to use entrapped evidence or infor-

mation obtained during the course of a scheme of en-

trapment in an affidavit to support the issuance of a

search warrant?

STATEMENT OF THE CASE

(a) Nature of the Case and Course of

Proceedings.

Edgar Eugene Harness, Jr., Petitioner, was charged

with and indicted for (a) possession of dangerous

drugs (two counts); and, (b) sale of dangerous drugs

(two counts). Petitioner moved to suppress all the evi-

dence and controvert the search warrant. Upon mo-

tion, the Court held an oral hearing on entrapment and

concluded that there was entrapment and suppressed

evidence as to marijuana involved but over Petitioner’s

objection allowed the search warrant to stand.

The trial began May 27, 1970, resulting in a verdict

of guilty of possessing dangerous drugs. A judgment

of conviction and commitment was entered, fixing his

punishment at confinement in the penitentiary for five

years and a fine of $5,000.00, Appendix,iifra, pp. 13-14.

Petitiener appealed that judgment to the Court of

Appeals of Kentucky and that court affirmed the judg-

ment by original opinion on October 22, 1971, overruled

) Petitioner’s petition for rehearing on February 18,

1972, and issued the mandate.

Petitioner applies for a writ of certiorari to the

order overruling his petition for rehearing and the

issuance of the mandate.

ae

io perenne se PR Tek ake era oe a ae ta ad |

3

(b). Statement of Facts.

Trooper Herbert Bowling of the Kentucky State

Police, in Rowan County, Kentucky, swore to the affi-

davit which supported the search warrant in this case,

the pertinent parts of which are as follows:

(a) **. .. Dave Roberts alighted from the Affiant’s

automobile, knocked on the house trailer door,

and ‘Sonny’? Harness came to the door, talked

with Dave Roberts, and admitted him to the

trailer. In approximately two (2) minutes Dave

Roberts and ‘*Sonmniy’’ Harness reappeared at

the door, Dave Roberts came back to the car and

delivered two (2) pills or tablets of LSD to the

Affiant, and told Affiant that he had purchased

these pills from ‘Sonny’? Harness for Five

($5.00) Dollars, which Affiant had previously

given Roberts.

(b) ‘Further Affiant states that on 27th February,

1970, at 9:45 p.m. local time he went to the above

deseribed trailer and purchased ten (10) grams

of hashish or marijuana from Edgar Eugene

Harness for which Affiant paid the said Harness

the sum of $32.50 U.S. currency.’ TLE., Vol. 3,

p. 74; Defendant Exhibit No. 8; Appendix,

mfra, p. 29.

The Kentucky State Police in the evening of the

day the Rowan County affidavit was made, searched

the premises of the Petitioner and found, among other

things, twenty-five LSD tablets, T. E., Vol. 3, p. 128.

Petitioner was arrested and charged with both selling

and possession of marijuana and LSD. T. E., Vol. 3,

p. 129. That same night Trooper Bowling returned to

Fayette County, Kentucky, and made an affidavit to

support a search warrant for the premises occupied by

Mr. and Mrs. Larry Berger. I that affidavit he swore

that he purchased twenty grams of marijuana from

eT te me eer

4

Larry Knight (actually Larry Berger). T. E., Vol. 3,

pp. 49-50; Defendant Exhibit No. 2, Appendix, infra,

p. 27. During the oral hearing, Bowling admitted that

this was the same marijuana he had sworn he had

purchased from Petitioner in Rowan County in the

first affidavit mentioned herein. T. E., Vol. 3, p. 124;

Appendix, infra, p. 31. He further admitted that

the only reason he gave drugs to Petitioner was so he

could purchase them back from him. T. E., Vol. 3, pp.

78, 79; Appendix, infra, p. 30.

Petitioner moved the Court to controvert the search

warrant and suppress the evidence because the affi-

davit contained illegally obtained information. T. E.,

Vol. 3, p. 142. A hearing was held and the trial court

ruled there was entrapment but that the searen war-

rant was valid and ordered that the trial against Peti-

tioner continue upon the charge of possession of LSD.

T. E., Vol. 3, p. 131.

The LSD found pursuant to the search warrant in

this case was introduced as evidence in the trial. Peti-

tioner was convicted of possession of LSD and sen-

tenced to five years in prison and a fine of $5,000.00.

An appeal was taken to the Court of Appeals of Ken-

tucky. The conviction was affirmed by upholding the

search warrant and stating that the affidavit was reg-

ular in form and that it was not proper to attack the

integrity of the allegations of the affidavit; therefore

allowing entrapped evidence to serve as the basis of

probable cause for issuance of the search warrant.

Opinion of the Court of Appeals of Kentucky, pp. 4, 5,

Appendix, infra, p. 18.

5

REASONS FOR GRANTING THE WRIT

This Court should grant certiorari to determine the

substantial federal question, whether the Fourteenth

Amendment denies State Police Officers the right to

use entrapped evidence or information obtained during

the course of a scheme of entrapment in an affidavit to

support the issuance of a search warrant.

This issue was necessarily presented to the trial court

and the Kentucky Court of Appeals as required by

Street v. New York, 394 S.W. 576 (1969). (See T. E.,

Vol. 3, p. 131 and Appendix, infra, p. 31). (See question

and argument ‘‘A’’, Brief for Appellant, pp. i, 1, 11 and

Petitioner's petition for rehearing, pp. i, 5, where the

question was squarely presented to the Court). The

Kentucky Court of Appeals decided this issue unfavor-

ably to Petitioner. The Kentucky Court had previously

avoided deciding this issue in Scott v. Commonwealth,

(Ky.) 197 S.W. 2d 774 (1946), by reversing on other

grounds, but did decide it in this ease by upholding the

search warrant based on that portion of the affidavit

that had been held to be entrapped evidence by the

trial court.

This petition presents to this Court a substantial

federal issue that is being handled by the lower court

system without any uniformity or guidance. 84 Harv.

L. Rev. 825 (1971); 67 Colum. L. Rev. 1529 (1967);

19 U.C.L.A. L. Rev. 96 (1971). The broad and general

form of the narrow issue presented here is whether or

not the integrity of an affidavit supporting a search

warrant may be attacked? This court has never actu-

ally decided that issue or any of the more narrow

6

legal questions contained therein. Rugendorf v. United

States, 376 U.S. 528, 532 (1964).

False or perjured testimony during trial within the

knowledge of the state and not corrected is denial of

due process under the Fourteenth Amendment. Napue

v. Illinois, 360 U.S. 264 (1959); Mooney v. Holohan,

294 U.S. 103 (1935). Such matters are usually de-

tected because they arise in an adversary proceeding.

On the other hand, affidavits for search warrants are

presented in ex parte proceeding where the sole judge

of their integrity is often a magistrate not trained in

law. Clay v. United States, 246 F. 2d 298 (5th Cir.),

cert. denied 355 U.S. 863 (1957). To have such people

deciding constitutional issues as important as a per-

son’s right to be free of unreasonable searches and

not allow reasonable investigation into the integrity

of the affidavit leaves the accused solely at the

merey of the sometimes unserupulous affiant. In such

cases the magistrate is not more than a rubber stamp

for the dishonest affiant..

The affidavit to support the issuance of the seareh

warrant in this case ean be divided into two portions.

The first portion relates to information received by the

affiant from a named informant. Petitioner raised

issues in the trial court and the Kentucky Court of

Appeals with respect to this portion of the affidavit

which have already been decided by this Court in

United States v. Ventresca, 380 U.S. 102 (1965) ; Spin-

elli v. United States, 393 U.S. 410 (1969); Aguilar v.

Teras, 378 U.S. 108 (1964) ; i. e., Where an informant

is the source of information upon which the affidavit

is based the affiant must allege facts showing the in-

formant’s reliability. The first portion of the affidavit

in this case completely failed to meet these require-

7

ments. The Kentucky Court avoided these questions in

Petitioner’s case by stating that the above cited cases

“ _ . deal with the requirements of an affidavit . . .

when information has been furnished by an unnamed

informant... We do not consider it necessary to deter-

mine whether Spinelli, Ventresca and Aguilar are ap-

plicable to named informants, because we believe that

the affidavit for the search warrant is sufficient with-

out reference to the alleged purchase of the two (2)

LSD tablets by Dave Roberts,’’ (Opinion of the Court

of Appeals of Kentucky, p. 4, Appendix, infra, p. 17.

The Kentucky Court, pending the appeal, held that the

requirement of reliability is applicable to named in-

formants. Thompson v. Commonwealth, (Ky.) 472

S.W. 2d 884 (1971); Berkshire v. Commonwealth,

(Ky.) 471 S.W. 2d 695 (1971). These cases were cited

to the Kentucky Court in Petitioner's petition for re-

hearing. Petition for Rehearing, pp. 7, 8. Therefore,

the search warrant would not have and could noi have

been upheld on the first portion of the affidavit.

The Kentucky Court of Appeals decided the issue

involved in this petition by saying:

The affidavit in express language alleged that

the officer Bowling on the 27th day of February,

1970, purchased ten grams of marijuana from ap-

pellant at his house trailer. Appellant concedes

that this allegation was ample to support the issu-

anee of the warrant but argues that the order of

the trial court dismissing the indictments relating

to the marijuana had the effect of removing that

portion of the affidavit of officer Bowling relating

to the marijuana. Appellant cites no authority for

this proposition and we know no reason why it

should be so.

“The affidavit was regular in form and the

statements contained therein sufficiently showed

ae SEN gt

8

probable cause. It is not proper to go behind the

allegations of the affidavit in determining whether

the allegations furnish sufficient evidence of prob-

able cause. (Emphasis added) Commonwealth vy.

Thacker, 229 Ky. 488, 17 S.W. 2d 399 (1929).

“The twenty-five (25) tablets of LSD found in

the search were properly admitted in evidence at

the trial.’’ Opinion of the Court of Appeals of

Kentucky, pp. 4, 5, Appendix, infra, p. 18.

The facts of this case necessitated and the trial court

did find that there was entrapment as a matter of law.

All of the police methods condemned by this Court in

Sorrells v. United States, 287 U.S. 435 (1932) and

Sherman v. United States, 356 U.S. 369 (1958) are

present here, and further evidence of the officer’s un-

lawful conduct is the facet that he swore to at least one

false affidavit to secure a search warrant. T. E., Vol.

3, pp. 49, 50; Def. Exh. 1,2; Appendix, infra, pp. 26, 27.

The trial court during the trial before the jury dis-

allowed testimony with respect to the entrapment, dis-

missing the charges relating to the entrapped mari-

juana, but allowed the officer to use that information

in an affidavit to support a seareh warrant.

If police are allowed to use the fruits of their illegal

actions in affidavits to secure search warrants it will

be repugnant to any concept of fairness and encourage

the employment of such condemned practices. In this

ease the officer has realized the result he intended al-

though the court has pronounced his means illegal.

This general problem has been faced in a long line of

decisions by this Court and the decision of the Court

of Appeals of Kentucky is not in accord with appli-

eable decisions of this Court. It should be pointed out

that the Kentucky Court relied on a case decided in

1939 which was before this Court applied the exclu-

9

sionary rule to the states in Mapp v. Ohio, 367 U.S.

643 (1961).

Illegally obtained evidence cannot be used for any

purpose against a defendant. Weeks v. United States,

932 U.S. 383 (1913). Illegally obtained evidence can-

not be used as evidence to secure other evidence. Sil-

verthorne Lumber Co. v. United States, 251 U.S. 385

(1919) ; Nardone v. United States, 308 U.S. 338 (1938) ;

Wong Sun vy. United States, 371 U.S. 471 (1963). To

permit entrapped evidence to be used as a basis for the

search warrant here violates the general rule of law in

the cited cases. ‘* The essence of a provision forbidding

the acquisition of evidence in a certain way is not

merely that evidence so acquired shall not be used be-

fore the Court, but that it shall not be used at all.”’ Sil-

verthorne, supra, p. 391. But for the illegally obtained

information, there would have been no search at all.

Not only was this illegally obtained information not

usable at the trial, but its use in the affidavit was not

proper.

In deciding this case the Court of Appeals of Ken-

tucky decided a substantial federal constitutional ques-

tion, that has not been decided by this court, and that

decision is obviously in conflict with the holdings of

the above cited cases.

At the present time both the federal and state courts

are divided as to whether any attack may be made on

the integrity of an affidavit in support of the issuance

of a search warrant. There are many cases holding

that Defendants have no right to question the integrity

of affidavits. These holdings are dogmatic and without

judicial reasoning. People v. Bak, (Ill.) 258 N.E. 2d

341, cert. denied 400 U.S. 882 (1970); People v. Mitch-

sehen tir Aa

if)

ell, (Ill.) 258 N.E. 2d 345, cert. denied 400 U.S. 882

(1970) ; Seager v. State, (Ind.) 164 N.E. 274 (1928);

Commonwealth v. Thacker, (Ky.) 17 S.W. 2d 399

(1929); Smith v. State, (Md.) 62 A. 2d 287 (1948);

State v. Stevens, (Mo.) 292 S.W. 36 (1927); State v.

English, (Mont.) 229 P. 727 (1924) ; Southard v. State,

(Okla.) 297 P. 2d 585 (1956) ; Owens v. State, (Tenn.)

399 S.W. 2d 507 (1965); Griffey v. State, (Tex.) 327

S.W. 2d 585 (1959); Kenney v. United States, 157 F.

2d 442 (App. D. C. 1946); United States v. Brunett,

53 F. 2d 219 (W.D. Mo. 1931).

On the other hand, eases allowing limited inquiry

into the integrity of an affidavit have either relied on

statutory authorization or have limited such inquiries

to challenges on very narrow issues. O’Bean v. State,

( Miss.) 184 So. 2d 635 (1966) (dicta); Cal. Pen. Code

$§ 1539, 1540 (West 1970); People v. Alfinito, (N.Y.)

211 N.E. 2d 644 (1965); United States v. Roth, 391 F.

2d 507 (7th Cir. 1968) ; nited States v. Ramos, 380 F.

2d 717 (2nd Cir. 1967) (Hearing on affidavit directed

by District Court): Aing v. United States, 282 F. 2d

398 (4th Cir. 1960).

To allow an affidavit, which contains perjurious or

illegally obtained information to support a search war-

rant is in conflict with the constitution and all concepts

of justice and fairness. Obviously to allow such illegal

conduct on the part of the police is violative of the con-

stitutional rights of our citizens and will damage public

confidence im our courts.

In this ease the issue of entrapment was raised and

hearing granted in the normal course of business of the

court handling a criminal trial. The trial court was

faced with the knowledge that a police officer had en-

~ OIE PIN 5 ENO I EIT ES

—_—

I

trapped the defendant and had further used the infor-

mation gained from that entrapment to secure the war-

rant. The trial judge had full knowledge of this il-

legal conduct by the police officer confronting him,

yet had no remedy available because of the controlling

precedent of Kentucky law. This happens often in re-

ported cases and no doubt multitudinous times in un-

reported cases. It often comes to the attention of the

trial court, through admissible testimony during trial

or indirectly as it did in the instant case during a hear-

ing on entrapment, that affidavit information was il-

legally obtained or false, but courts are forced to abide

by precedents concluding that search warrant affida-

vits may not be impeached. States with precedents sim-

ilar to the New York rule, People v. Alfinito, supra,

allow impeachment of affidavits under the cireum-

stances but those following the Texas rule would not

allow impeachment even if admissible testimony at the

trial proved the affidavit to be entirely false. Griffey

v. State, supra.

The status of the rule that the affidavit cannot be

attacked under any circumstances is similar to the law

that once existed with respect to search warrants, 1.€.,

officers could not confiseate items in a search which

were not authorized by the search warrant. The ques-

tion then arose, should an officer ignore evidence of

illegality or contraband once he sees it even though it

is not expressly what he is looking for? The rule was

properly changed to allow officers to confiscate evi-

dence of illegality they observed in the normal course

of a lawful search. How ean trial courts continue to

ignore illegality on the part of police officers when

it becomes obvious during the normal course of the

proceedings? Why is perjury or illegality more ae-

a DPS REE Os oo 8 TR : ——

Mig a

Site Gita hia bts EEA ADRS ALOE TB é

12

ceptable in affidavits, which are designed to protect

a constitutional right, than during trials?

The sanctity given search warrant affidavits by the

majority of our courts is unsupported by any sound

judicial reasoning. When the courts deny the right to

reasonably question affidavits made by police officers,

who are pressured to make arrests and obtain convic-

tions, and the right to question magistrates, who are

many times unqualified to perform the duty we de-

mand oi them, constitutional protection becomes a

sham. Denial of the right to reasonably question affi-

davits leaves our constitutional right to be free of un-

reasonable searches at the merey of the law enforce-

ment officer who may be dishonest.

Where during an exclusionary hearing or during the

jury trial it becomes obvious to the trial judge that the

affidavit and the search warrant are based upon per-

jury or illegally obtained or entrapped evidence the

Fourteenth Amendment demands that the search war-

rant be quashed and the Defendant released if there is

no other competent evidence to support the charges.

CONCLUSION

For the reasons set forth above, a Writ of Certiorari

should be granted to review the judgment of the Court

of Appeals of Kentucky.

Respectfully submitted,

Astor Hoda

CREECH, Hoga & JOHNSON

Box 150

1107 - 1109 Second National

Bank Building

Ashland, Kentueky 41101

May 1972 Attorneys for Petitioner

PEER REALL TNE PS IT ET OE EN IE LE I EET a OS