Reply Brief — Sports Diversified, Inc. v. National Bank of Commerce of Tulsa

In THE

Supreme Court of the Anited States

Ocroser Term, 1973

No. 73-1251

CHARLES FELTON, Warden, Illinois State

Penitentiary, Joliet Branch,

Petitioner,

vs.

SAMUEL SAIKEN,

Respondent.

RESPONDENT’S ANSWER TO PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE SEVENTH OCIROUIT

Joun J. O’TooLe

29 S. LaSalle Street

Chicago, Illinois 60603

Peter GEORGES

10 S. LaSalle Street

Chicago, Illinois 60603

Attorneys for Respondent

Midwest Law Printing Co., Chicago 60601, Financial 6-3988

TABLE OF CONTENTS

QUESTIONS PRESENTED

ARGUMENT:

L

Habeas Corpus Is A Great Constitutional Priv-

ilege And There Is No Higher Duty Than To

Maintain It Unimpaired

Il.

An Affidavit Based Solely Upon Hearsay Is In-

sufficient To Establish Probable Cause For The

Issuance Of A Search Warrant Where It Does

Not Contain Any Underlying Circumstances Of

Fact Or Any Underlying Circumstances Of Re-

liability Of The Informant

CONCLUSION

List Or Autuorities CrrED

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

Brown v. United States, 365 F. 2d 976 (D.C. Cir.

1966)

Fay v. Noia, 372 U.S. 391 (1963)

Harris v. Nelson, 394 U.S. 286 (1969)

Johnson v. Avery, 393 U.S. 483 (1969)

PAGE

10

Jones v. U.S., 362 U.S. 257 (1960) ioe

Spinalli v. U.S., 393 U.S. 410 (1969) ~—

United States v. Mitchell, 457 F. 2d 513 (6th Cir,

1972)

United States v. Mohler, 442 F. 2d 1172

United States v. Roth, 391 F. 2d 507 (7th Cir. 1967) .

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

United States ex rel Cardaio v. Casscles, 446 F. 2d

oo ooo—

632 (2d Cir. 1971) 8

Wade v. Mayo, 334 U.S. 672 (1948) 2

Fourteenth Amendment to the Constitution of the

United States 5, 10

28 U.S.C. 2241 et seq. 2

Iw Tue

Supreme Court of the Ginited States

Ocroser Term, 1973

No. 73-1251

CHARLES FELTON, Warden, Illincis State

Penitentiary, Joliet Branch,

Petitioner,

vs.

SAMUEL SAIKEN,

Respondent.

RESPONDENT'S ANSWER TO PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES OOURT

OF APPEALS FOR THE SEVENTH CIRCUIT

QUESTIONS PRESENTED.

1. Whether the constitutional right of a state pris-

oner to Habeas Corpus in the Federal Courts may be

abrogated ?

2 Whether an affidavit which is based solely on hear-

say, which contains no underlying circumstances of fact,

and no facts relating to the reliability of the informant

is sufficient to establish cause for the issuance of a search

warrant?

L

HABEAS CORPUS 15 A GREAT CONSTITUTIONAL PRIy.

ILEGE AND THERE I5 NO HIGHER DUTY THAN TO Maly.

TAIN IT UNIMPAIRED.

The petitioner seeks the plenary consideration of this

Honorable Court to dilute and ultimately destroy the

protection afforded a state prisoner by the Constitution

of the United States and Congressional enactment (2

U.S.C. 2241 et seq.) (Pet. 7-10).

Plaintiff’s argument is couched in generalities, dealing

with public policy and alleged infringement on the integ-

rity and sovereignty of the several states; an argument

which is not new to this Court (Wade v. Mayo, 334 US.

672 (1948)). In Wade the Court stated (681-682) :

“Fear has sometimes been expressed that the exer-

cise of the district court’s power to entertain habeas

corpus petitions under these circumstances might give

rise to frequent instances of a single federal judge

upsetting the judgment of a state court, often th

highest court of the state. But to restrict the writ

of habeas corpus for such reason is to limit it on the

basis of a discredited fear.”

In the ultimate, petitioner would have this Court negate

and destroy an inherent and fundamental right, whic

was born in the Magna Charta; developed by the Consti-

tution of the United States; and achieved maturity in the

Jadiciary Act of February 5, 1867 and in the decisions

of this Court.

«>|

-

The history and development of this “Great Writ” is

ensively, yet succinctly, set forth in Fay v. Now,

$12 U.S. 391 (1963) 399-426, after which the court stated:

“We have reviewed the development of habeas

corpus at some length because the question of the

instant case has obvious importance to the proper

accommodation of a great constitutional privilege and

the requirements of the federal system. Our survey

discloses nothing to suggest that the Federal District

Court lacked the power to order Noia discharged be-

cause of a procedural forfeiture he may have in-

curred under state law. On the contrary, the nature

of the writ at common law, the language and purpose

of the Act of February 5, 1867, and the course of

decisions in this Court extending over nearly a cen-

tury are wholly irreconcilable with such a limitation.

At the time the privilege of the writ was written into

the Federal Constitution it was settled that the writ

lay to test any restraint contrary to fundamental law,

which in England stemmed ultimately from Mag-

na Charta but in this country was embodied in the

written Constitution. Congress in 1867 sought to pro-

vide a federal forum for state prisoners having con-

stitutional defenses by extending the habeas corpus

powers of the federal courts to their constitutional

maximum. Obedient to this purpose, we have con-

sistently held that federal court jurisdiction is con-

ferred by the allegation of an unconstitutional re-

straint and is not defeated by anything that may

oceur in the state court proceedings. State procedural

rules plainly must yield to this overriding federal

policy.”

Subsequent to Fay in Johnson v. Avery, 393 U.S. 483

(1969) the Court stated (485):

“This Court has constantly emphasized the funda-

mental importance of the writ of habeas corpus in

vntliiic

our constitutional scheme, and the Congress has dem.

onstrated its solicitude for the vigor of the Great

Writ. The Court has steadfastly insisted that ‘there

is no higher duty than to maintain it unimpaired’

Bowen v. Johnston, 306 U.S. 19, 26, 83 L. Ed. 455,

461, 59 S. Ct.”

and in Harris v. Nelson, 394 U.S. 286 (1969) the Court

stated:

“There is no higher duty of a court, under ow

constitutional system, than the careful processing

and adjudication of petitions for writs of habeas

corpus, for it is in such proceedings that a person

in custody charges that error, neglect, or evil pur.

pose has resulted in his unlawful confinement and

that he is deprived of his freedom contrary to lav.

This Court has insistently said that the power of the

federal courts to conduct inquiry in habeas corpus is

equal to the responsibility which the writ involves:

‘The language of Congress, the history of the writ,

the decisions of this Court, all make clear that the

power of inquiry on federal habeas corpus is plenary,’

Townsend v. Sain, swpra, at 312, 9 L. Ed. 2d at 785.”

The very suggestion by petitioner of the infringement

of the right of a state prisoner to habeas corpus in the

federal courts, under the banner of the integrity of the

state, belies and negates the very purpose of the writ.

I.

AN AFFIDAVIT BASED SOLELY UPON HEARSAY I8 Id

SUFFICIENT TO ESTABLISH PROBABLE CAUSE FOR THE

ISSUANCE OF A SEARCH WARRANT WHERE IT DOES NOT

CONTAIN ANY UNDERLYING CIRCUMSTANCES OF FACT

OR ANY UNDERLYING CIRCUMSTANCES OF RELIABILITY

OF THE INFORMANT.

The Court of Appeals held that the respondent’s convict

tion was obtained by the use of evidence discovered 2

—

ae

an illegal search in violation of his rights under the

Fourteenth Amendment to the Constitution of the United

States.

The affidavit of Officer Young, which formed the basis

for the issuance of the search warrant in this case, pro-

vides as follows:

“State of Indiana

County of Porter—ss:

Before the Hon. Harry Estler, Justice of the Peace

In the matter of a search for a dead human body -

believed to have been illegally procured.

Docket 25, Page 420, Cause No. 10-229

Harry Youna swears that by virtue of informa-

tion voluntarily conveyed to him by one Jorn Sarkry

on Tuesday, the 18th day of February, 1969, affiant

has good reasons to believe, and does believe, that

a dead human body, to-wit, female approximately

seventeen (17) years of age is secreted in and about

the following real estate in Porter County, Indiana:

The East % of the Southeast % of the South-

west 14 of Section 17, Township 37 North, Range

5 West of the Second Principal Meridian, con-

taining about 20 acres more or less,

said real estate being the property of Sam D. and

Minnie Saikin, said dead body being secreted in the

following place and manner, to-wit: buried beneath

the ground behind the goose house on said premises,

originally buried under or near a manure pile located

behind or near the goose house on said premises,

said manure pile subsequent thereto having been

removed.

Under and according to the provisions of Acts

1905, page 169, paragraph 61, the same being codified

at Burns Indiana Statutes 9-607, that the Honorable

Judge of this Court, taking with him such constables

=

and police officers as he shall designate, enter, inspee

and search said premises for such dead femal

human body as soon as may be reasonably convenient

to said Court and said judge.

Further affiant sayeth not.

Harry Young,

Harry Young, Affiant

Subscribed and sworn to before me, on this 19th

day of February, 1969.

Harry W. Estler,

Justice of the Peace.

My Commission expires 12-31-71.”

The search warrant issued herein must stand or fall

solely on the contents of the aforementioned affidavit of

Officer Young, for it was the only matter presented to

the Justice of the Peace to establish probable cause for

the issuance of the warrant.

Where an affidavit is based upon hearsay, as herein,

the Judge must be informed in the affidavit of: (a) some

underlying circumstances from which the informant con-

cluded that the property sought was where the informant

claimed it was; and (b) the affidavit must also contain

some underlying circumstances and facts from which the

affiant concluded that the informant was reliable. Aguilar

v. Texas, 378 U.S. 108 (1964); Spinalli v. U.S., 393 US.

410 (1969) ; Jones v. U.S., 362 U.S. 257 (1960).

With respect to these two requirements, the affidavit of

Officer Young is totally deficient. There is absolutely nm

underlying circumstances stated therein upon which Joel

Saikin believed the body to be located in that spot, nor

is there any allegation or even mention of his reliability.

Petitioners contend that an identified citizen whow

true name is used is presumed to be credible. The cases

ails

cited in support thereof are not applicable herein and are

an incomplete statement of the law. :

In Brown v. United States, 365 F. 24 976 (D.C. Cir.

1966), the Defendant was arrested by two police officers

for # minor traffic violation. One of the officers, after the

stop, heard a radio message reporting a robbery and the

general description given fit both the Defendant and his

motor vehicle. The Court held that these facts give rise

to probable cause for the arrest of the Defendant and

the search of his motor vehicle even though the general

information came from the victim of the crime who was

mknown to the arresting officers. An arrest and search

without a warrant was proper.

In United States v. Mitchell, 457 F. 2d 513 (6th Cir.

1972), the Court held that where, at the time of Defend-

ant’s arrest, officers had knowledge that a bank robbery

had been committed earlier the same afternoon by a male

bandit dressed as a woman, eyewitness had given officers

description of vehicle similar to Defendant’s and bearing

similar license number, the vehicle was parked at De-

fendant’s residence and the Defendant was in the process

of packing his suitcase at the time of arrest, the officers

had probable cause to make an arrest without warrant to

search made incident to the arrest was valid.

United States v. Mohler, 442 F. 2d 1172, affirmed the

conviction where affidavits in support of search warrants

obtained by an F.B.I. Agent at San Diego, who detailed

information received from an F.B.I. Agent at Tucson,

who got most of his information from the victim identi-

fied in the affidavit as the victim, by name and address

and detailed the whole story. Further, the affidavits state

the location of the Defendant’s photographic equipment

a

and of certain photographs, and gave a description of th

home of the Defendant, his trailer, camper and cn,

Part of this was confirmed from the California Depar.

ment of Motor Vehicles. There was also some corrobon.

tion of the victim by another woman, who was also fully

identified in the affidavits.

United States ex rel Cardaio v. Casscles, 446 F. 2d 6%

(2d Cir. 1971) affirmed the denial of a petition by a state

prisoner for Writ of Habeas Corpus holding that infor.

mation an informer gave police was sufficient to constitute

probable cause to believe that the Petitioner was th

armed robber who had taken marijuana from the ip

former where the informer related to police that the

marijuana had been taken from him by a robber at gu.

point, gave a description of Petitioner and furnished

them with Petitioner’s first name and telephone number,

Police then confirmed that the given telephone number

was listed under a person with such a first name. Upon

arrival at the address of Petitioner, given by the tele

phone company, the police were told that a person by

such a first name was there and, upon entering, officers

observed Petitioner, who conformed to informer’s de

scription. Petitioner was arrested and searched without

warrant.

In this cause, one Joel Saiken was named in the process

issued by the Justice of the Peace, but there is no show

ing if, in fact, there was such a person, who he was, how

he obtained knowledge of the facts, was he in fact credible

or his information reliable. It is clear that the Justice of

the Peace was not afforded reasonable grounds for issuing

the warrant.

—_

The Petitioners’ contention that the extremely detailed

nature of the information given to the officers estab-

lished the validity of the information is without merit.

The warrant merely recites that affiant had information

yluntarily conveyed to him by one Joel Saiken on a

given date, without reciting any details as to when and

by whom was the human body illegally procured, when

and by whom was said body buried, where on the prem-

ises was the goose house located and when and by whom

was the manure pile removed.

In reply to Petitioner’s contention that the Court read

the warrant in a grudging negative manner disapproved

in United States v. Ventresca, 380 U.S. 102 (1965), we

would quote United States v. Roth, 391 F. 2d 507 (7th

Cir. 1967),

“Although we are mindful of the Supreme Court’s

admonition in Ventresca that ‘affidavits for search

warrants, * * * must be tested and interpreted by

Magistrates and Courts in a common sense and real-

istic fashion,’ we may not overlook the equally im-

portant charge that sufficient specificity of an affida-

vit for a search warrant ‘is essential if the Magis-

trate is to perform his dettached function and not

serve merely as a rubber stamp for the police’.”

In United States v. Roth, 391 F. 2d 507 (7th Cir. 1967)

dealt with inherently defective hearsay on hearsay. In

further protecting the rights of the accused the Court

made inquiry into the quantum of underlying circum-

stances necessary to sustain an affidavit for a search

warrant due to the absence of the disclosure of inform-

ant’s source of information. Since this was not the factual

situation before this Court, this Court was limited to the

four corners of the search warrant.