Petition for A Writ of Certiorari — Brigandi v. New York

eet a

SUPREME COURT, U. BS. FILED

ak oe ee

or.

In The sep 4 1973

Supreme Court of the Huited States —

October Term, 1973

No. 73- 4 19

ANTHONY BRIGANDI and DONALD BRIGANDL, .

Petitioners,

v8.

THE PEOPLE OF THE STATE OF NEW YORK,

‘ Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE COURT OF

APPEALS OF THE STATE OF NEW YORK

IRVING ANOLIK

Attomey for Petitioners

225 Broadway

New York, New York 10007

(212) 732-3050

(6480) LUTZ APPELLATE PRINTERS, INC.

Law end Financial Printing

South River, N.J. New York, N.Y. Philadelphia, Pa. Washington, D.C.

INDEX TO BRIEF

Statement oe eee eeeee eee ee ee ee 1

J ur isdiction eoseeseeeeeeeeeeeweeeee 2

Opinions Below re ee ee 2

Constitutional and Statutory Provisions In-

EE CTRT SOE a a ae a Re ee

2

Questions Presented .......2222eee- 2

Introductory . a _ +. - . _ _ a e* 7. . ec a s 8 _ a 3

E vidence at Trial © s . . . . o ° eo e . e es s * 7

Argument:

I. The rights of the petitioners were vio-

lated when the police obtained an am-

biguous and dubious “consent” to

conduct a search of their business

premises after they were taken into

custody and without advising them of

their right not to accede to the police

woqeest @ eeereR. «ccc ecceccce Al

II. The Courts below misconstrued the

doctrine of Coolidge v. New Hamp-

shire, with respect to items in “plain

view.” The medals and coins seized

without a warrant were not contraband

at sight and required a careful exam-

ination by an expert before seizure

en Le —,—”——S~S<;T tlle

ii

Index

; Page

could be effectuated. Plain view,

therefore, should not have justified

the warrantless search and seizure

of the incriminating evidence. ..... 24

Ill, The petitioners were prejudiced

by the Trial Court’s ruling that they

could not have pretrial discovery

of a tape recording made by one Rivera

which was ultimately introduced into

evidence. The granting of such relief

is warranted under Alderman v. United

States, 394 U.S. 165 (1969), ..... 26

Conclusion.

eee @ oe £2 ¢. 2 =. 9 e ° ee 8 @ 28

Order of Appellate Division (Donald Brig-

andi) (Filed January 16, 1973) ‘Joma Jae

Order of Appellate Division (Anthony Brig-

andi) (Filed January 16, 1973) .....

‘ Order of New York Court of Appeals Af-

firming Without Opinion (Filed June

6, 1973)

ee eee e @ exe se . 68 eee e ee 31

Table of Citations

CASES CITED:

Abel v. United States, 362 U.S. 217 .... 22

Alderman v. United States, 394 U.S. 165. 3, 6, 26

itt.

Index

Boykin v. Alabama, 395 U.S. 238, 23

L.Ed, 2d 274, 89 S.Ct. 1709 (1969) ... 12

Brady v. Maryland, 373 U.S. 83, 88 ..-. 27

Brown v. Mississippi, 297 U.S. 278 ... 18

Bumper v. North Carolina, 391 U.S. 544,

548

s 8 @ 6. 8 6 23 © @ 4 6-6 6 6's e*eeeee 16

Carnley v. Cochran, 369 U.S. 506, 8 L.

Ed. 2d 70, 82 S.Ct. 884 (1962) ....,

Channel v. United States, 285 F.2d 217

Chambers v. Maroney, 399 U.S. 42, 51... 14

Chapman v. United States, 333 U.S. 10,

o 2 o * - 22

15 eeeeee8#ee eeeeee8e

Chapman v. United States, 365 U.S. 610,

615 . . * ° oo * _ —_ . +. e s a. — + 2 _ - * e = — 22

Chimel v. California, 395 U.S. 757 .. 6, 15, 25

Coolidge v. New Hampshire, 403 U.S.

443 coe30ocoeeeeseeeeeee 3, 5, 6, 14, 22, 24

D. H. Overmyer Co. v. Frick Co., 405

U.S. 174, 31 L.Ed. 2d 124, 92 S.Ct.

775 (1972) e + a e = 7 a7 es - s e a — e e s e 12

Escobedo v., Illinois, 378 U.S.478...... 15,18

iv

Index

Frazier v. Cupp, 394 U.S. 731, 740 ...... 22

Fuentes v. Shevin, 407 U.S. 67, 32 L.Ed.

2d 556, 92 S.Ct. 1983 (1972) ........ 12

Ginsberg v. New York, 390 U.S. 629, 649 ... 12

Gobart Importing Co. v. United States, 282

U.S. 344, 358 e* e« ° + €¢ 2 2 8 6 6 9 eee 25-

Hill v. California, 401 U.S. 797 ....... 22

Jencks v. United States, 353 U.S. 57 ... 27

Johnson v. Zerbst, 304 U.S. 458, 464... 21

Judd v. United States, 190 F.2d 649, 651 . . 23

Kolod v. United States, 390 U.S. 136 .... 27

Katz v. United States, 389 U.S. 347, 357 ... 14

Miranda v. Arizona, 384U.S.436. . 6,12,15, 19, 21

People v. Rosario, 9 N.Y. 2d 286 ...... 27

Schneckloth v. Bustamonte, 36 L.Ed. 2d

854 . . 2,3,6,11,12,13,17, 18, 19, 20, 22, 23, 24

Schmerber v.California, 384 U.S. 757, 770-

771 _ + _ e — e +. e . ° . s . - . J . s e . 22

Spano v. New York, 360 U.S. 315 ...... 19

Index

Page

Stanley v. Georgia, 394 U.S. 557, 571... 25

Steele v. United States, 267 U.S. 498 ... 25

United States v. Jeffers, 342 U.S. 48,

Mie tn en 6S 6 @ Od 4 lee 21, 22

United States v. Lifkowitz, 285 U.S. 452, 465. . 25

United States v. Marrese, 336 F.2d 501 oe

Vale v. Louisiana, 399 U.S. 30 ..... 21, 22

Villano v. United States, 310 F.2d 680,

684 . e . a e e e es a * _ * * e e . * e . o e 23

Warren v. Hayden, 387 U.S. 294 at 298-

299 se e ° & * a es e e . ee e e a e e - o ae 22

Zap v. United States, 328 U.S. 624 ...... 21

STATUTES CITED:

28 U.S.C. Section 1257/3) .......... 2

UNITED STATES CONSTITUTION CITED:

Fourth Amendment ............ 1

Fifth Amendment e e e e . e e e e a e a eo 1

vi

Index

Sixth Amendment eeoeee#e#eee#es*eeeee # #@® @ 1

Fourteenth Amendment .....22e-ee0e- 21

’ OTHER AUTHORITIES CITED:

Bator & Vorenberg, “Arrest, Detention,

Interrogation and the Right to Counsel:

Basic Problems and Possible Legis-

lative Solutions,” 66 Colum. L. Rev.

Oe a a ee a a a a

Sages ie

ae ae ees

In The

Supreme Court of the Hnited States

October Term, 1973:

[

No. 73-

ANTHONY BRiIGANDI and

DONALD BRIGANDI,

Petitioners,

-US,-

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent.

"PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF THE STATE OF NEW YORK

Statement

Petitioners, jointly and severally, seek a writ of

certiorari to the New York Court of Appeals from the

order of that Court affirming without opinion, the order

of the Appellate Division of the Supreme Court of the

State of New York, First Department, which in turn had

affirmed without opinion the judgment of the Supreme

Court, New York County, rendered the 28th day of

February, 1972, convicting each Petitioner, after trial, of

the crimes of criminal possession of stolen property in the

first degree and sentencing ANTHONY BRIGANDI to not

more than three years imprisonment plus a $2,000.00 fine

and sentencing DONALD BRIGANDI to a term of

probation. ANTHONY BRIGANDI is now in custody.

2

Jurisdiction

The jurisdiction of this Court is predicated upon 28

U.S.C. Section 1257(3). The Court of Appeals of the State

of New York and the Appellate Division, First

Department, affirmed without opinion. The New York

Court of Appeals affirmed the judgment of the Supreme

Court and the order of the Appellate Division on the 6th

of June, 1973.

Opinions Below

There was no opinion written by either the Appellate

Divsion or the Court of Appeals in the Courts below.

Constitutional and Statutory Provisions

Involved

The Fourth, Fifth, Sixth and Fourteenth Amendments

of the United States Constitution are involved herein.

Questions Presented

1. Whether the subject of a search who is in actual

custody can “consent” to a warrantless search and seizure

without having been informed of his right to refuse to give

such consent?

(a) This is the precise issue left open and unanswered

in SCHNECKLOTH v. BUSTAMONTE, 36 L.Ed. 2d 854.

2. May the subject of a search “choose” to relinquish

his Constitutional right to be free of unreasonable searches

without knowing that he has the alternative of refusing to

accede to a police request to search?

3. Whether it is essential that the subject of a search

who is in custody be advised of his right to refuse to

permit a warrantless search?

a eB

Questions Presented

4. Whether Petitioners (ANTHONY BRIGANDI’s)

statement to the police, who were bent upon conducting a

search, “Do what you want’’, can be deemed a “‘consent”’

in view of the fact that he was then in custody and had not

been informed of his alternative of refusing to accede to

the police request*to search?

5. Whether the “plain view doctrine” of COOLIDGE v.

NEW HAMPSHIRE, 403 U.S. 443, may justify a

premeditated warrantless search and seizure where there

was ample opportunity to obtain a search warrant?

6. Whether the failure of the Trial Court to grant

pretrial discovery of a tape recording which was ultimately

used in evidence against the Petitioners, violated the

doctrine of ALDERMAN v. UNITED STATES, 394 U.S.

165?

7. Since the Petitioners herein are seeking direct review

of the judgment of conviction, they are not involved in a

collateral attack by habeas corpus such as in

SCHNECKLOTH v. BUSTAMONTE, supra, Whether in

view of this fact, certiorari should appropriately be granted?

Introductory

This case presents the issue which was left unanswered

and open in the recent case of SCHNECKLOTH v.

BUSTAMONTE, 36 L.Ed. 2d 854 (decided May 29, 1973),

namely whether the subject of a search who is actually in

custody may relinquish his Constitutional right to be free

of unreasonable searches without knowing that he has the

alternative of refusing to accede to a police request to

search.

We believe that certiorari should be granted for this

reason alone since there ought to be clarification on this

point.

4

Introductory

In the case at bar the police had been investigating the

disappearance of certain commemorative medals and coins

manufactured by the Medallic Art Company. The

Petitioners herein operated two coin stores - one at West

45th Street and another at West 44th Street, both in

Manhattan.

Entering the 45th Street store without a warrant, the

police saw certain medals and coins in a showcase and,

after examining them, decided that these had been stolen

from the Medallic Art Company, at which point it is

alleged that the Petitioners were placed under arrest.

The police however, were intent upon conducting a

search of the 45th Street and 44th Street stores and,

without advising the BRIGANDIS of their alternative not

to accede to the police request to search, they asked

ANTHONY BRIGANDI whether they could search their

stores and received the ambiguous and helpless response

“Do what you want”’.

THE PEOPLE no doubt had an opportunity to obtain

a search warrant since they had been conducting an

investigation for some time. No search warrant, however,

was secured.

THE PEOPLE OF THE STATE OF NEW YORK

alleged that ANTHONY BRIGANDI had “consented” to a

search which turned out to be a sine qua non for a

conviction.

It is not disputed that upon entering the premises of

the Petitioners, the authorities had no probable cause

whatsoever to make an arrest.

It is the a fortiori position of the Petitioners that since

they had no probable cause to make an arrest, they

certainly had no probable cause to make a warrantless

search and seizure.

b

Introductory

The prosecution, however, maintained that the

statement of ANTHONY BRIGANDI - “Do what you

want” - in response to lawful authority, constituted a

“consent”, since otherwise there obviously could not have

been a valid arrest.

The position taken on this petition is that the consent

was meaningless since it was in response to lawful

authority and, consequently, could not constitute that

type of “consent” to take the search and seizure out of the

prohibitions of the Fourth Amendment of the United

States Constitution.

It must be borne in mind that although the

BRIGANDIS were in custody when the alleged consent,

“Do what you want,” was uttered, it is not disputed in the

record that these Petitioners who had never been in

conflict with the law previously, were not advised of their

Constitutional rights to refuse to consent to any search.

How could they “waive” an unknown right?

It is submitted that there could not have been any

arrest at all unless there had been a valid search and

seizure. There was no probable cause for the warrantless

search and seizure, nor was there any probable cause for

the arrest.

The nisi prius Court was obviously confused by what

had occurred and, in rejecting the motion to suppress,

came to the incorrect conclusion that the seareh was an

incident of a lawful arrest.

In the first place, there were two premises involved,

namely West 45th Street and West 44th Street.

The initial search and seizure at the 45th Street store,

conducted by a ruse and the excuse of the “plain view

doctrine” of COOLIDGE v. NEW HAMPSHIRE, supra,

Introductory

resulted in the arrest of the Petitioners. The officers had

no search warrant and they were not looking for any

weapons (CHIMEL v. CALIFORNIA, 395 U.S. 752).

They already had placed the Petitioners in custody and

it was at this juncture that they sought and received the

ambiguous “consent’”’ to conduct searches at 44th Street

and 45th Street from ANTHONY BRIGANDI, despite the

fact that no warnings had been given of the Petitioners’

right not to consent. (MIRANDA v. ARIZONA, 384 U.S.

436, and SCHNECKLOTH v. BUSTAMONTE, supra).

The omission to have articulated the Constitutional

rights of the Petitioners not to consent was not considered

in determining whether or not there was an actual consent,

since the Courts below undoubtedly ruled that such advice

was not required. Indeed, it is submitted that the question

of proper consent should have been submitted to the jury,

or at least a specific factual determination by the Trial

Court on this issue should have been made.

The Courts below misconstrued the “plain view

doctrine” of COOLIDGE v. NEW HAMPSHIRE, supra, as

will be explained infra.

The activities of the prosecution in derogation of the

Constitutional rights of the Petitioners, was further

exacerbated by the use of a surreptitious tape recording by

one Rivera, the contents of which were withheld from a

pretrial suppression hearing. In this context it is alleged

that the doctrine of ALDERMAN v. UNITED STATES,

394 U.S. 165, was violated.

FES IMR ESIO AL PICS ATO SA WLEY

Evidence at Trial

The Petitioners, ANTHONY and DONALD

BRIGANDI, are father and son. Together with Anthony

Brigandi’s wife Anna, they are the sole stockholders in

Donald E. Brigandi Company, Inc., a firm that is in the

wholesale and retail coin business. At the times mentioned

herein, the firm operated the West 45th Street and West

44th Street stores.

Both Petitioners worked in the stores together with a

younger son Robert, sometimes referred to in the

testimony as Andy. A Mr. Metterson was in charge of the

44th Street store on November 18, 1970. Anna Brigandi is

not employed.

Neither Petitioner has any prior criminal record.

ANTHONY BRIGANDI is 55 years old, a grandfather

and a disabled World War II veteran who received two

honorable discharges and earned two Good Conduct

Medals. He supports two sons, one in college and one in

high school, in addition to his wife.

DONALD BRIGANDI is presently 25 years old and

supports a wife and two infant children.

In April 1971, a New York County Grand Jury

indicted both Petitioners upon three counts of criminal

possession of stolen property. Specifically, the first count

charges such possession in the first degree during the

period from May 1, 1970 until November 18, 1970, of a

quantity of commenorative coins, the property of Medallic

Art Company, having an aggregate value in excess of

$1,500.00. The second count charges criminal possession

of a quantity of Apollo XII and XIII commemorative

coins, the property of Medallic Art Company during the

same period of time having an aggregate value in excess of

$1,500.00. The third count charges criminal possession of

~ je eerry

Evidence at Trial

a quantity of commemorative coins property of Medallic

Art Company, during the same period of time, of an

aggregate value in excess of $250.00.

Medallic Art Company (“‘Medallic”) manufactures

commemorative medals for other companies who

distribute them for sale through retail outlets. The

Presidential Art Medals, Inc. (‘‘Presidential’’)

commissioned Medallic to make 10,000 silver Apollo XII

medals and 15,000 bronze. Thereafter Presidentail cut the

order to 6,000 silver medals. At that time, Medallic had

already manufactured 6,100 of them. Medallic shipped

5,800 to Presidential but Presidential returned 531 as

rejects. These rejects and the 300 unshipped surplus

medals—831 medals in all—were unserialized. These 831

medals were ordered defaced to be sent to a refinery for

smelting.

The manufacturer’s price for Apollo XIIs was $16.50.

The list retail price was $35.00, and some dealers,

including Presidential, cut the retail price. The silver

content value of each medal, depending on weight, was

$8.00. Some dealers bought these medals for their

silver-content value alone. Other metals manufactured by

Medallic were sold at various wholesale prices, ranging

from $2.49 to $18.50. Some metals were given away as

gratuities for services rendered to Mediallic.

Inventories in June or July and November 1970

showed shortages of several hundred Apollo XII medals.

Medallic thereupon employed a private investigating firm

in May 1970 and the police assigned a Detective Keables

to the case in June 1970.

Mark Adrian and Raymond Rivera, Medallic employees,

admitted that they were stealing unserialized medals as

“‘partners” and selling them to the Petitioners at prices a

- OSCR SFR UIC Rota

abe SE, T Meck BOSE

.

Evidence at Trial

little below their silver value and no questions were asked

of them. They testified they also sold such medals to

others. Later Rivera worked with another employee,

Ortega, as a partner.

Adrian said he sold unspecified medals at unspecified

times and at unspecified prices to DONALD BRIGANDI

on 15 occasions. The facts, circumstances and prices of

these alleged sales were not disclosed. All other alleged

sales were made to ANTHONY BRIGANDI. Adrian was 16

years old at the time but admittedly looked much older.

His contact with the Petitioners lasted only 2 months,

June and July of 1970. He testified that he introduced

Rivera in June 1970 to ANTHONY BRIGANDI as his

partner, but Anna Brigandi produced documentary proof

that she and Anthony BRIGANDI were in Europe in June

1970, when the introduction allegedly took place. The

documentary proof consisted of a U. S. passport and an

airline scroll (A-878), and was not rebutted by the

prosecution.

On November 18, 1970, Rivera was equipped with a

recording device, given a box of Medallic Art medals and

instructed to go to the West 45th Street Store and do what

had had in the past. Rivera entered this store with the box

of medals and disposed of them to someone in the store.

Keables saw Rivera enter the store. Two customers and

three Brigandis were present. He could not see which of

the three Brigandis Rivera approached or who paid for the

medals. He had no conversation with Rivera when he left

the store, nor did he listen to the tape recording on Rivera

at that time.

Some minutes later, Detective Keables entered the

store and spoke to ANTHONY without warning him of his

rights to remain silent and to have the assistance of

_ counsel. ANTHONY said that he had just purchased some

10

Evidence at Trial

medals from a Spanish looking fellow. Ruete of Medallic

then entered the store and after inspecting the medals

which were removed from the showcase, identified them as

his property.

After Ruete of Medallic identified some medals

removed from a display case as Medallic property, Keables

placed both Petitioners under arrest ‘“‘on the spot’’. He said

he then asked ANTHONY for “permission” to visit

Petitioners’ 44th Street Store, to which ANTHONY

replied, “Do what you want”. Twenty-four medals were

seized at the West 44th Street Store.

A pre-trial motion to suppress these 30 medals as

having been seized unlawfully in violation of Petitioners’

constitutional rights, was denied, the Court stating that

Petitionérs were confusing the motion to suppress with the

Fourth Amendment. These 30 medals were the only

allegedly stolen medals received in evidence at the trial.

Other medals allegedly stolen and allegedly sold to the

Petitioners were never produced.

Medals that are not mint perfect are often sold to

smelters for their silver content. The practice in the trade

followed in buying medals from strangers and young

people was in dispute.

There was abundant evidence that many employees at

Medallic were stealing medals. Rivera contradicted himself

several times and both he and Adrian stated they had lied

to investigators in the case and before the Grand Jury.

Adrian gave ANTHONY an incorrect name and

address. He sold to the Petitioners because the Petitioners

give him the best deal.

Rivera never dealt with DONALD. The medals he sold

were unserialized. Many silver medals are sold which do

11

Evidence at Trial

not bear serial numbers.

In this posture of events both Petitioners are stamped

as felons. In addition, ANTHONY faces a three-year

indeterminate sentence in State prison plus a heavy fine,

and has commenced service of his sentence. ,

Argument

I

The Rights of the Petitioners Were Violated When the

Police Obtained an Ambiguous and Dubious “Consent” to

Conduct a Search of Their Business Premises After They

Were Taken Into Custody and Without Advising Them of

Their Right Not to Accede to the Police equest to

Search. ,

In SCHNECKLOTH v. BUSTAMONTE, 36 L.Ed. 2d

854 at 875, this Court made it clear that it was not

attempting to determine whether or not warnings as to

Constitutional rights are necessary prior to obtaining

consent to search from the subject of such search who is

then in actual custody. This Court explained (id. at 875):

“Our decision today is a narrow one. We hold

only that when the subject of a search is not in

custody and the State attempts to justify a search

on the basis of his consent, the Fourth and

Fourteenth Amendments require that it

demonstrate that the consent was in fact

voluntarily given, and not the result of duress or

coercion, express or implied. Voluntariness is a

question of fact to be determined from all the

circumstances, and while the subject’s knowledge

of a right to refuse is a factor to be taken into

12

Argument

account, the prosecution is not required to

demonstrate such knowledge as a prerequisite to

establishing a voluntary consent.’’ (emphasis ours)

In SCHNECKLOTH v. BUSTAMONTE, supra, this

Court was aware of the fact that in MIRANDA v.

ARIZONA, 384 U.S. 436, warnings were held to be

mandatory where the subject of police questioning was in

actual custody. This Court felt that it was quite significant

in determining a valid consent to inquire whether a —

was in custody or not.

We also emphasize the fact that this petition is

presented in an effort to review the judgment of

conviction and is not a collateral attack by habeas corpus

which was so significant in the SCHNECKLOTH decision.

In GINSBERG v. NEW YORK, 390 U.S. 629, 649, the

concurring opinion of Justice Stewart noted that the

capacity to choose necessarily depends upon knowledge

that there is a choice to be made.

The Courts below came to the peculiar and

incongruous conclusion that a person could validly waive

his rights under the Fourth Amendment without knowing

that he had the alternative of refusing to give his consent.

This Court has always scrutinized with great care

claims that a person has foregone the opportunity to assert

Constitutional rights.

See, FUENTES v. SHEVIN, 407 U.S. 67, 32 L.Ed. 2d

556, 92 S.Ct. 1983 (1972); D.H. OVERMYER CO. v.

FRICK CO., 405 U.S. 174, 31 L.Ed. 2d 124, 92 S. Ct. 775

(1972); BOYKIN v. ALABAMA, 395 U.S. 238, 23

L.Ed.2d 274, 89 S.Ct. 1709 (1969); CARNLEY v.

COCHRAN, 369 U.S. 506, 8 L.Ed. 2d 70, 82 S.Ct. 884

(1962).

Ryser verar

4

13

Argument

There is no reason to give the claim that a person has

consented to a search any less rigorous scrutiny.

As Justice Marshall pointed out in his dissent

(SCHNECKLOTH v. BUSTAMONTE, 36 L.Ed. 2d at 892,

893): ‘

“Every case in this Court involving this kind of

search has therefore spoken of consent as a waiver:

See, e.g., Amos v United States, 255 US 313, 317,

65 L Ed 654, 41 S Ct 266 (1921); Zap v United

States, 328 US 624, 628, 90 L Ed 1477, 66 S Ct

1277 (1946); Johnson v United States, 333 US 10,

13 92 L Ed 436, 68 S Ct 367 (1948): Perhaps one

skilled in linguistics or epistemology can disregard

those comments, but I find them hard to ignore.”

This Court itself specifically left open the issue

presented in the case at bar; namely, must warnings be

given before a valid consent can be obtained from the

subject of a search who is in actual custody?

In view of the MIRANDA case, supra, it is difficult to

rationalize any basis for withholding of any such warnings

under these circumstances.

If consent to search means that a person has chosen to

forego his right to exclude the police from the place they

seek to search, it follows that his consent cannot be

considered meaningful unless he knew that he could in fact

choose to exclude the police.

This Court, of course, is well aware of the doctrine of

“response to lawful authority”. Thus, as the Circuit Court

said in BUSTAMONTE vy. SCHNECKLOTH, 448 F. 2d

699, 701:

14

Argument

“Under many circumstances a reasonable person

might read an officer’s ‘May I’ as the courteous

expression of a demand backed by force of law.”

It is well settled under the Fourth and Fourteenth

Amendments that a search conducted without a proper

warrant issued upon probable cause is “per se

unreasonable ...subject only to a few specifically

established and well delineated exceptions.” KATZ v.

UNITED STATES, 389 U.S. 347, 357; COOLIDGE v.

NEW HAMPSHIRE, 403 U.S. 443, 454-455; and

CHAMBERS v. MARONEY, 399 U.S. 42, 51.

It is equally well settled that one of the specifically

established exceptions to the requirements of both a

warrant and probable cause is a search that is conducted

pursuant to “consent”. DAVIS v. UNITED STATES, 328

U.S. 582, 593-594; ZAP v. UNITED STATES, 328 U.S.

624, 630; and SCHNECKLOTH v. BUSTAMONTE, 36

L.Ed. 2d 854 (1973).

The Respondent herein necessarily must concede that

there was no search warrant and that when the officers

entered the premises of the Petitioners, they had no

probable cause to make an arrest. Nor can THE PEOPLE

dispute the obvious fact that the officers who entered

Petitioners premises on the day of the arrest were intent

upon conducting a warrantless search.

The Trial Judge who heard the suppression evidence in

a pretrial hearing, stated in his decision that the search and

seizure was justified as an incident of a lawful arrest.

It is important to understand the chain of events.

On November 18th, 1970, three police detectives

attached to the Police Department of the City of New

York, entered the West 45th Street store of the

15

Argument

Petitioners. One, a Detective Keables, testified at the

suppression hearing that he told Petitioner ANTHONY

BRIGANDI, that he was a police officer but did not advise

either of the Petitioners, both of whom were targets of an

investigation, .of their Constitutional rights under

traditional due process rules such as ESCOBEDO vy.

ILLINOIS, 378 U.S. 478, and MIRANDA v. ARIZONA,

384 U.S. 436.

An employee of Medallic Art Company, one Ruete,

peered in the 45th Street store at this juncture and saw

certain medals in a showcase from which they were

removed and examined. Keables testified (A-104) that

Ruete identified these medals as “belonging to the

Medallic Art Company” ever though they were fungible

items and there was no evidence of theft at that point.

Notwithstanding this fact, both Petitioners were placed

under arrest on the spot.

On the record, however, Justice Murtagh denied the

motion to suppress the items seized at the West 45th

Street store, holding, inter alia:

“The above items were seized, being in plain view

of the arresting officers, and as an incident to the

arrest of the defendants Anthony and Donald

Brigandi. Accordingly the seizures were in

complete conformity with Chimel v. California,

395 U.S. 752 (1969).”

It is extremely important to note that the Trial Judge

did not attempt to justify his holding that the search and

seizure were proper on the basis of “consent”,

On the contrary, what the Trial Judge actually did was

to state that the warrantless search in essence justified an

arrest except that in writing his conclusion, the Court

16

Argument

completely misconstrued the facts and the sequence of

events. From reading Justice Murtagh’s decision it is

obvious that the nisi prius Court believed that an arrest

had first been made and then a search conducted. This is

not at all what occurred. The prosecution on this petition

cannot deny that the chain of events were the complete

reverse of the holding of the Trial Court, namely that there

was an examination of certain medals which were taken

out of a showcase window and following that examination

a declaration by someone in the employ of Medallic Art

Company that they were the property of Medallic. Then,

and only then, did an arrest occur.

It is elementary, of course, that a search invalid ab

initio is not validated by what has been discovered.

(BUMPER v. NORTH CAROLINA, 391 U.S. 543, 548 n.

10).

After the Petitioners were placed under arrest, the

request to conduct further searches was made and it is in

this context that the “consent” to search the premises of

the Petitioners was allegedly obtained when ANTHONY

BRIGANDI uttered the words “Do what you want’’.

The initial search and seizure, after the officers entered

the West 45th Street premises, was supposedly justified

under the so-called “‘plain view doctrine”’ of COOLIDGE v.

NEW HAMPSHIRE, supra. The subsequent searches were

allegedly justified on the theory of “‘consent’’.

The paradox, however, is that no effort was made to

justify any of the searches on the basis of the “plain view

doctrine” since these medals and coins were fungible and

by merely looking at them through a showcase window, no

one could have assumed that they were contraband or

stolen. Thus neither the “plain view doctrine” nor the

“consent” while in custody exception to the Fourth

Amendment could have justified the activities of the police

in this case.

17

Argument

Part and parcel of the case involved another search of

the other store of the Petitioners at 120 West 44th Street.

The arresting officers stated that “permission” was given

to them to conduct a search there by Petitioner

ANTHONY BRIGANDI.

The actual colloquy, however, reveals that the contrary

is the case. During the colloquy the officer, on

cross-examination (Detective Keables), was asked:

“Q. Did he say that he was giving you his

permission to go to the other store, and get those

Medallic Art Medals?

“A. He said, ‘Do what you want.’

“Q. He said, ‘Do what you want’?

“A. Yes.”

It is also significant that when this alleged consent was

given to conduct the search at the 44th Street store,

Detective Keables admitted the following:

“When those medals in the display case were

identified as the property of Raymond Ruddy [sic],

and when Anthony Brigandi said to you, ‘Do as

you want,’ Anthony Brigandi was already in

custody at that time is that correct?

“Ves. ”

Thus we submit that we have a completely different

situation herein than the circumstances which were present

in SCHNECKLOTH v. BUSTAMONTE, supra, In the

SCHNECKLOTH case, this Court found. that after the

officers had stopped the car, they had been told “Sure, go

ahead”’, when they asked if they could search the car. In

SCHNECKLOTH this Court further found:

18

Argument

“Prior to the search no one was threatened with

arrest and, according to Officer Rand’s

uncontradicted testimony, it ‘was all very

congenial at this time.’ ” (36 L.Ed. 2d at 858,

859).

Further, in SCHNECKLOTH, this Court seemed to

approve the Trial Court’s determination that proper

consent to the search had been given This Court noted

that:

“in the instant case the prosecution met the

necessary burden of showing consent... since

there were clearly circumstances from which the

trial court could ascertain that consent had been

freely given without coercion or submission to

‘authority. Not only Officer Rand, but Gonzales,

the driver of the automobile, testified that Alcala’s

assent to the search of his brother’s automobile

was freely given. At the time of the request to

search the automobile, the atmosphere, according

to Rand was ‘congenial’ and there had been no

discussion of any crime.”

The most extensive judicial exposition of the meaning

of “voluntariness” has been developed in those cases in

which the Court has had to determine the “‘voluntariness”

of a defendant’s confession for the purpose of the

Fourteenth Amendment.

Almost forty years ago, in BROWN v. MISSISSIPPI,

297 U.S. 278, this Court held that a criminal conviction

based upon a confession obtained by brutality and

violence was Constitutionally invalid under the due process

clause of the Fourteenth Amendment.

In some thirty different cases decided during the era

that intervened between BROWN and ESCOBEDO v.

ee RNASE A Le 8S ee eo

ee

19

Argument

ILLINOIS, supra, this Court was faced with the necessity

of determining whether in fact the confessions in issue had

been “voluntarily” given. It is to that body of case law

that we must look, as well as to the recent case of

SCHNECKLOTH v. BUSTAMONTE, supra, to determine

voluntariness of the consent.

Again we remind this Court that the

defendant-petitioners, ANTHONY BRIGANDI and

DONALD BRIGANDI, were both actually in custody at

the time the alleged consent to search the 44th Street store

was given.

It is not alleged that there was any consent to search

the 45th Street store, prior to the arrests.

The search of the 45th Street store was clearly

improper under any theory since there was no search

warrant and since there could not have been an “open

view” exception because the medals involved had to first

be examined carefully before it could be determined that

they were the property of Medallic Art Company.

Obviously a consent wrested by trickery or in

to lawful authority, is not the type of consent which will

take the search out of the restrictions of the Fourth

Amendment. (MIRANDA v. ARIZONA, supra, SPANO v.

NEW YORK, 360 U.S. 315; BATOR & VORENBERG,

“Arrest, Detention, Interrogation and the Right to

Counsel: Basic Problems and Possible Legislative

Solutions”, 66 Colum.L.Rev. 62, 72-73).

In SCHNECKLOTH, this Court noted that in all of the

cases which were reviewed there, there was no single

controlling criterion. ‘“‘Each reflected a careful scrutiny of

all the surrounding circumstances.”

|

Be

‘

abe

ay,

ee ee ate hs

20

Argument

One of the important aspects of course, which was not

present in SCHNECKLOTH,, is that in the case at bar the

Petitioners were in custody when the consent was

obtained. Secondly, there was no congeniality or free

exchange among the parties prior to the giving of the

alleged consent, as was the case in SCHNECKLOTH.

Additionally, it must be borne in mind that the Petitioner

ANTHONY BRIGANDI merely said “Do what you want”

and did not say “Sure, go ahead’’, as was the situation in

SCHNECKLOTH.

Moreover, in the case at bar we were not dealing with

an automobile, as they were in SCHNECKLOTH, but

rather, two stores, which undoubtedly had been under

surveillance for some time. There was absolutely no

problem in getting a search warrant and, indeed, that is

what should have been done in the case at bar.

The testimony reveals that there had been coaching by

detectives of two of the witnesses who later became

material in the prosecution, namely Mark Adrian and

Raymond Rivera, who admitted that they were stealing

unserialized medals as “‘partners”’ and selling them to the

Petitioners at prices a little below their silver value with no

questions asked of them.

There was other testimony in the record that there

were varying prices paid for these medals and that the fact

that they were bought or sold at below their silver value

was not in itself indication of knowledge that they were

stolen. The market varies quite a bit in these items.

In SCHNECKLOTH this Court specifically noted that

in the case of custodial questioning or the obtaining of

custodial consent, the question was far different.

2 ees -

ERPs SSI LE AEE. note be

21

Argument

A consent, of course, is « waiver of Constitutional

rights (JOHNSON v. ZERBST, 304 U.S. 456, 464).

But, as noted in MIRANDA v. ARIZONA, 384 U.S. at

475, the Supreme Court held:

“This court has always set high standards of proof

for the waiver of Constitutional rights .. . and we

reassert those standards as applied to in custody

interrogations. Since the state is responsible for

establishing the isolated circumstances under which

the interrogation takes place and has the only

means of making available corroborated evidence

of warnings given during incommunicado

interrogations, the burden is rightly on_ its

shoulders.”

It must therefore be emphasized that in the case at bar

there was absolutely no showing by the prosecution that

either of the Petitioners was told that he did not have to

consent to a search, even though he may have been told

generally about his rights and right to consult with

counsel.

In VALE v. LOUISIANA, 399 U.S. 30, and WARDEN

v. HAYDEN, 387 U.S. 294, as well as ZAP v. UNITED

STATES, 328 U.S. 624, this Court has emphasized that

the circumstances must be unusual where a search warrant

may be dispensed with. The burden is on the Government

to establish that a search is proper where no search warrant

has been secured.

We must bear in mind that there was no suggestion in

this case that prior to the initial search that there had been

any consent (ZAP v. UNITED STATES, supra). In

addition, the officers were not responding to an

emergency, UNITED STATES v. JEFFERS, 342 U.S. 48,

51, 52. They were not in hot pursuit of a fleeing felon

BRS SRE IRE ATER Se ahi Baas Ta nes ST BERIT! xe

22

Argument

(WARDEN v. HAYDEN, supra, at 298-299; CHAPMAN v.

UNITED STATES, 365 U.S. 610, 615). The goods

ultimately seized were not in the process of being

destroyed, SCHMERBER v. CALIFORNIA, 384 U.S. 757,

770-771; UNITED STATES v. JEFFERS, supra. Nor were

they about to be removed from the jurisdiction

(CHAPMAN v. UNITED STATES, 333 U.S. 10, 15 and

UNITED STATES v. JEFFERS, supra).

It should also be noted that the officers had previously

equipped Rivera with a tape recording device and, infact,

a recording had been made and was ultimately introduced

into evidence. It is therefore obvious that there was

substantial investigation and there was no reason why the

officers could not have obtained a search warrant under

the circumstances. (See VALE v. LOUISIANA, supra).

We also point out that this case does not present a

situation where there was a third party consent such as in

COOLIDGE v. NEW HAMPSHIRE, id at 487-490, where a

wife surrendered to the police guns and clothing belonging

to her husband.

FRAZIER v. CUPP, 394 U.S. 731, 740, held that

evidence seized from the defendant’s duffle bag in a search

authorized by his cousin’s consent was admissible at trial.

See also, ABEL v. UNITED STATES, 362 U.S. 217 and

HILL v. CALIFORNIA, 401 U.S. 797, 802-805, where it

was held that the police had validly seized evidence from

the petitioner’s apartment incident to the arrest of a third

party, since the police had probable cause to arrest the

petitioner and reasonably, though mistakenly, believed

that the man they had arrested was he. None of these

elements are present in the case at bar.

It is of paramount importance to also note that in the

recent case, and perhaps the most recent decision on

consent, SCHNECKLOTH v. BUSTAMONTE, supra, this

PPP PEL, ACTORS SPLOT TER TERI,

23

Argument

Court, in footnote number 29, specifically declared the

following (36 L.Ed. 2d 870):

“As we have already noted, supra, ... Miranda

itself involved interrogation of a suspect detained

in custody and did not concern the investigatory

procedures of the police in general on-the-scene

questioning. 394 U.S., at 477.

By the same taken, the present case does not

require a determination of the proper standard to

be applied in assessing the validity of a search

authorized solely by an alleged consent that is

obtained from a person after he has been placed in

custody. We do note however, that other courts

have been particularly sensitive to the heightened

possibilities of coercion when the ‘consent’ to a

search was given by a person in custody. See, e.g.,

Judd v. United States, 190 F. 2d 649, 651;

Channel v. United States, 285 F. 2d 217; Villano v.

United States, 310 F. 2d 680, 684; and United

States v. Marrese, 336 F. 2d 501.” (Emphasis ours)

The concurring opinions in_ this Court in the

SCHNECKLOTH case were also concerned over the fact

that the search and the consent issue were being raised

Collaterally on habeas corpus. Here, again, the situation is

not the same in the case at bar where there is a direct

petition for certiorari to this Court from the affirmance by

the highest Court of the State.

In the case at bar, of course, the issues were carefully

Preserved in the lower Courts and there is no habeas

Corpus collateral attack.

Therefore, it is submitted that this Court should review

the case at bar because it presents the very issue held in

abeyance in SCHNECKLOTH v. BUSTAMONTE, namely

24

Argument

what is the effect of the securing of “consent” to a search

when the giver of that consent is in police custody and

unaware of his rights? This issue was not reached in

SCHNECKLOTH and, therefore, the case at bar presents a

proper vehicle by which this Court can and should clarify

the law in this regard.

Il.

The Courts Below Misconstrued the Doctrine of

Coolidge V. New Hampshire, With Respect to Items in

“Plain View”. The Medals and Coins Seized Without a

Warrant Were Not Contraband At Sight and Required a

Careful Examination By an Expert Before Seizure Could

Be Effectuated. Plain View, Therefore, Should Not Have

Justified the Warrantless Search and Seizure of the

Incriminating Evidence.

The Trial Court, as has been noted in the preceding

Point, was confused and mistaken about the sequence of

events.

The Trial Court had assumed that the arrest occurred

before the first search. Even the prosecution does not

allege that that was the sequence of events. It is obvious

from the record that the first search occurred and the

seizure was effectuated before the arrest occurred.

For the initial search at the 45th Street store, the Trial

Court relied upon the “plain view” doctrine of

COOLIDGE v. NEW HAMPSHIRE, predicated upon its

mistaken assumption that a valid arrest had already

occurred.

COOLIDGE v. NEW HAMPSHIRE, supra, is not a case

upon which the police and the prosecution had a right to

rely. In COOLIDGE this Court carefully explained:

io

25

Argument

“An example of the applicability of the ‘plain

view’ doctrine is the situation in which the police

have a warrant to search a given area for specified

objects and in the course of the search come across

some other article of incriminating character. Cf.

Gobart Importing Co. v. United States, 282 U.S.

344, 358; United States v. Lifkowitz, 285 U.S.

452, 465; Steele v. United States, 267 U.S. 498;

Stanley v. Georgia, 394 U.S. 557, 571.”

The Court went on to explain that the plain view

doctrine obviously does not merely permit the seizure of

items in plain view unless they are of an incriminating

nature. The Court explained further at the same page:

“It is well extablished that under certain

circumstances the police may seize evidence in

plain view without a warrant. But it is important to

keep in mind that, in the vast majority of cases,

any evidence seized by the police will be in plain

view, at least at the moment of seizure. The

problem with the ‘plain view’ doctrine has been to

identify the circumstances in which plain view has

legal significance rather than being simply the

normal concomitant of any search, legal or illegal.”

Reliance upon CHIMEL v. CALIFORNIA, 395 U.S.

752 (1969) is not justified since this was not a search

incident to a lawful arrest and, under any circumstances,

the police were certainly not looking for any weapons.

Argument

Il.

The Petitioners Were Prejudiced by the Trial Court's

a that They Could Not Have Pretrial Discovery of a

Tape Reconling Made by One Rivera Which Was

Ultimately Introduced Into. Evidence. The Granting of

Such Relief is Warranted Under Alderman V. United

States, 394 U.S. 165 (1969).

It is not disputed that a tape recording was made by

Rivera and that this recording was used in evidence at the

trial. During the pretrial suppression hearings there was a

demand that the recording be made available prior to the

trial. The Petitioners’ counsel stated (A-155, 156):

“If there were recordings made, we are entitled to

‘them before trial.”

Judge Murtagh, however, denied this defense request,

declaring:

“The District Attorney has-a continuing obligation

to furnish you with any exculpatory evidence, but

I assume that when he is not doing this, he feels

that he does not have any.

I must leave that choice to him”’

This, of course, is in direct conflict with this Court’s

decision in ALDERMAN v. UNITED STATES, 394 USS.

165 (1969). In that case, this Court made it abundantly

clear that there was an absolute right on the part of the

defendant to have a recording made of a conversation with

him for pretrial determination as to its Constitutional

viability and whether a motion to suppress could be made.

The prosecutorial eye is frequently out of focus. The

Court did not even listen to it in camera. Under the

27

Argument

circumstances, this was a clear abuse of discretion and a

violation of the Constitutional rights of the Petitioners.

See KOLOD v. UNITED STATES, 390 U.S. 136;

BRADY v. MARYLAND, 373 U.S. 83, 88; JENCKS v.

UNITED STATES, 353 U.S. 657; and cf., PEOPLE v.

ROSARIO, 9 N.Y. 2d 286.

In KOLOD, this Court at 390 U.S. 137-138, explained:

“We cannot accept the Department’s ex parte

determination of relevancy in lieu of such

determination in an adversary proceeding in the

District Court... the District Court will make

such finding of fact on these questions as may be

appropriate in light of further evidence and of the

entire existing record.”

The suppression hearing was incomplete without

discovery and an adversary proceeding with respect to the

tape recording.

“kdwentey

DSreaee nr Daye

28

Conclusion

The Writ of Certiorari Should be Granted and the

Judgments of Conviction Reserved.

Respectfully submitted,

IRVING ANOLIK

Attorney for Petitioners

Order of Appellate Division (Donald Brigandi)

(Filed January 16, 1973)

At a term of the Appellate Division of the

Supreme Court held in and for the First

Judicial Department in the County of New

York, on January 16, 1973

Present—Hon.Theodore R. Kupferman, Justice Presiding,

Francis T. Murphy, Jr.

Myles J. Lane

Aaron Steuer, Justices

The People of the State of New York,

Plaintiff-Respondent,

-against-

Donald Brigandi,

Defendant-Appellant.

An appeal having been taken to this Court by the

defendant-appellant from the judgment of the Supreme

Court, New York County (Baer, J.), rendered on February

28, 1972, convicting him of the crime of criminal

possession of stolen property in the first degree, and said

appeal having been argued by Mr. William E. Ringel of

counsel for the appellant, and by Mr. Barry M. Fallick ‘of

counsel for the respondent; and due deliberation having

been had thereon,

It is unanimously ordered and adjudged that the

judgment so appealed from be and the same is hereby, in

all things, affirmed.

ENTER:

s/Hyman W. Gamso

Clerk.

30

Order of Appellate Division (Anthony Brigandi)

’ (Filed January 16, 1973)

At a term of the Appellate Division of the

Supreme Court held in and for the First

Judicial Department in the County of New

York, on January 16, 1973.

Present—Hon.Theodore R. Kupferman, Justice Presiding

Francis T. Murphy, Jr.

Myles J. Lane

Aron Steuer, Justices

The People of the State of New York,

Plaintiff-Respondent,

-against-

_ Anthony Brigandi,

Defendant-Appellant.

An appeal having been taken to this Court by

the defendant-appellant from the judgment of the

Supreme Court, New York County (Baer, J.),

rendered on February 28, 1972, convicting him of

the crime of criminal possession of stolen property

in the first degree, and said appeal having been

argued by Mr. William E. Ringel of counsel for the

appellant, and by Mr. Barry M. Fallick of counsel

for the respondent; and due deliberation having

been had thereon.

It is unanimously ordered and adjudged that

the judgment so appealed from be and the same is

hereby, in all things, affirmed.

ENTER:

s/Hyman W. Gamso

Clerk.

MASI NN Sa RENN

31

Order of New York Court

o

Withont Oram

(Filed June 6, 1973)

Court of A

State of New York

The People of the State of

New York,

Respondent,

-against- |

Anthony Brigandi and

Donald Bridandi,

Appellants.

Orders of the Appellate Division, First

Department Affired. No opinion.

All concur.

June 6, 1973

Clerk