Petition for Rehearing — Epps v. United States

ee

ORT ET Tr eT nn ea

TABLE OF CONTENTS

Page

OPINIONS BELOW. .ccccccscccsecess coed

JURISDICTION........... eeeseceveneed

QUESTION PRESENTED FOR REVIEW...... 2

CONSTITUTIONAL PROVISION INVOLVED. .2

STATEMENT OF THE CASE.......cceee0e5

REASONS FOR GRANTING WRIT....... 22 06

CONCLUSION....... jetawes Terre ree 12

CERTIFICATE OF SERVICE............. 13

APPENDIX

Opinion of the Fourth Circuit

COMES GE AMBPOGIS sce ctccceesens A- 1

TABLE OF CITATIONS

Supreme Court Cases

Bumper v. N. C., 391 U.S. 543,

88 S.Ct. 178 9

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

o1; 90A S.Ct. 1975 7

Coolidge v. New Hampshire, 403

U.S. 443, 454, aes; 91 S.Ct.

2022 7

Davis v. United States, 328 U.S.

582, 593; 66 S.Ct. 1256

Katz v. United States, 389 U.S.

5347, 357; 88 S.Ct. 503

Miranda v. Arizona, 384 U.S. 436;

86 S.Ct. 1602

Schneckloth v. Bustamonte, 92

S.Ct. 2041 (1973)

U. S. v. Wade, 388 U.S. 218,

87 S.Ct. 1926 (1967)

Zap v. United States, 328 U.S.

624, 630; 66 S.Ct. 1277

Federal Cases

Judd v. United States, 89 U.S.

App. D.C. 64, 190 F.2d 649

(1952)

Rosenblatt v. Henderson, 389

F.2d 514 (6C 1968)

United States v. Blalock, 255

F.Supp. 268 (Ed.Pa. 1966)

U. S. v. Fisher, (U.S.D.C.

Minn. 1971)

U.S. v. Pelensky, 30 F.Supp.

976, 978, 979 (D.Vt. 1969)

ii

ee i ae Ea

7 as

United States v. Smith, 308 F.2d

97, 663 (2 Cir.1962) Cert.

denied, 372 U.S. 90683 S.Ct.

717

State Cases

Commonwealth v. Hares: 429 Pa.

, ; 290 (1968)

People v. Preston, 341 I11l. 407,

173 N.E. 585, 77 A.L.R. 631

State v. King, 44 N.J. 346, 209

A.2d 110, 9 A.L.R.3d 847

iii

7, 12

i

SUPREME COURT OF THE UNITED STATES

No.

THOMAS J. EPPS, JR.,

Petitioner,

UNITED STATES OF AMERICA,

Respondent

PETITION FOR A WRIT OF CERTIORARI

“THE FOURTH! CIRCUIT COURT OF APPE.

TO ALS

TO CHIEF JUSTICE AND

ASSOCIATE JUSTICES OF THE

SUPREME COURT OF THE

UNITED STATES:

Your petitioner, Thomas J.

Epps, Jr. hereby petitions for a writ of

certiorari to review the decision of the

Fourth Circuit Court of Appeals made on

September 14, 1973 which affirmed the

decision of the District Court.

ne eee

OPINIONS BELOW

Appeals opinion decided on September 14,

1973 is appended hereto in the Appendix.

The opinion of the Fourth Circuit has

not been officially reported at this

time.

The Fourth Circuit Court of |

E

:

JURISDICTION

The order sought to be reviewed

was made and entered on September 14, 1973.

No petition for a re-hearing was made nor

was there any extension granted to file

this petition for certiorari. The statu-

tory provision believed to confer juris-

diction on this Court to review the

judgment in question is 28 U.S.C. Sec.

1254(1).

QUESTION PRESENTED FOR REVIEW

1. Is an alleged consent search

of a suspect made while he is in a custodial

environment after he has requested the aid

of an attorney, which has not been furnished

to him, valid under the Fourth Amendment of

the Constitution of the United States?

CONSTITUTIONAL PROVISION INVOLVED

"The right of the people

to be secure in their persons,

BUND aiks LIN etd

houses, papers and effects

against unreasonable searches

and seizures, shall not be

violated, and no warrants shall

issue, but upon probable cause,

supported by oath or affirma-

tion, and particularly describ-

ing the place to be searched,

and the person or thing to be

seized.'' Amendment 4, Consti-

tution of the United States.

STATEMENT OF THE CASE

Petitioner was indicted on an in-

dictment containing two counts. The first :

count charged him with robbery of the First f

Virginia Bank of Nansemond, Nansemond, Vir- :

ginia, on the 29th day of December, 1972. The |

second count of the indictment charged the !

defendant with unlawfully and knowingly pos-

sessing about $500 which was taken and carried

away with intent to steal and purloin from

the care, custody, control and management and

possession of the First Virginia Bank of

Nansemond, Virginia, and that the defendant,

Thomas James Epps, Jr., knew said money had

been so taken and carried away.

The case was tried on March 27,

1973, in the District Court for the Eastern

District of Virginia and the jury found the

defendant not guilty on the first count of

the indictment and guilty on the second

count of the indictment. The defendant was

sentenced by the Court to ten years in the

Federal Penitentiary unless sooner dis-

charged by those in authority. The Fourth

Circuit Court of Appeals affirmed this de-

Cision (See App.).

lReference will be made in the following manner

(App. on Appeal) means the printed Appendix on

appeal; (App.) means Appendix in Petition for :

Certiorari. -3- ,

;

Prior to the trial of the case,

defendant motioned the Court to suppress ‘

certain evidence, to-wit: United States ;

currency taken from the defendant by agents

of the Federal Bureau of Investigation on ;

the grounds that it had been illegally 3

seized from him. The motion to suppress q

the evidence was heard in the United States

District Court on February 26, 1973 and the i

motion to suppress was overruled. '

The facts regarding the seizure

of the money are as follows: The bank was

robbed of a large quantity of money on

December 29, 1972, and on the same day the

defendant, Thomas James Epps, Jr. was en-

countered by Special Agent John Bunszel of

the Federal Bureau of Investigation in an

area in Portsmouth, Virginia, known as

Jeffry Wilson Homes (App. on appeal, p. 4).

Defendant was advised of his

rights and was questioned for a short period

of time at this site. He was given a waiver

to sign regarding his rights which he read

but declined to sign (App. on appeal, p. 5

and 6). At the time he was questioned in

the Jeffry Wilson area, he was asked if he

was involved in a bank robbery or knew any-

thing about it and he denied it (App. on ap-

peal, p. 10 and 11). At a later time, he

was asked to accompany the Federal Bureau

of Investigation to the Portsmouth, Virginia

Police Headquarters for further questioning.

The questioning took place in the office of

the Chief of Detectives of the Portsmouth

Police Department (App. on appeal p. 12 and

15). At the time of the questioning two

agents of the Federal Bureau of Investiga-

tion were present along with two detectives

from the Portsmouth Police Department (App.

on appeal p. 13). The defendant came to

&

DB LEIA RAT

N.S nee ee jee

the police headquarters voluntarily and was

not further advised of his rights (App. on

appeal p. 14). The defendant was asked if

he had any money in his possession and he in-

dicated that he had $500 with him and he was

asked if he would be willing to show this

money to the officers (App. on appeal p. 14).

He indicated that he would like to have the

money put in an envelope and sealed with the

amount written on it and then signed by the

agents and himself subject to his seeing his

attorney for advice (App. on appeal p. 15

and 16). Defendant indicated that he

wanted his lawyer there before they took

the money (App. on appeal p. 16).

He was then told that the agents

only wanted to look at the money and at

this point he produced the money and the

agent recorded the serial numbers on the

money and returned it to him (App. on ap-

peal p. 22, 23, and 24). About two hours

later the agents arrested the defendant

and took the money from him (App. on appeal

p. 24). There was no search warrant in- \

volved in this case (App. on appeal p. 25).

Although there were three officers present

at this time, the only officer to testify

in regards to the seizure of the evidence

and to the alleged consent by the defendant

was Special Agent John Bunszel. The de-

fendant, Thomas James Epps, Jr. testified

in regards to the seizure of the money in

question and stated that he was offered a

waiver to sign regarding his rights to

LSS

SO Pees

see

i Sears

ee a eee eee ne

questioning. He refused to sign it without

the presence of his counsel (App. on appeal

p. 27). He then stated that the agent told

PIT ENA TPE TES TOA EE, TES

him that he was going to ask him some rou-

tine questions, which he did (App. on ap-

peal p. 27 and 28).

Pre ree

REEL 5 REY nes

MEA TUIO LID Lc MMW OL DR As

ot me eae

iieriendiieee

When he was invited down to the

Portsmouth, Virginia police station, defen-

dant asked the officers: "Before you ask

me anything let me call my attorney first."

(App. on appeal p. 30 and 31). He was told

that he did not need his attorney because

they were only going to ask him a few basic

questions (App. on appeal p. 30). He was

then asked if he had any money in his poc-

ket and replied that he thought he had a-

bout $500 and $2 or $3 (App. on appeal p.

30). He was then asked if the agents could

look at the money and he replied if my

attorney says it's all right for you to

look at it, you can look at it (App. on ap-

peal p. 30). He said that the agent insis-

ted on looking at the money and he told

them that he would take the money and place

it in an envelope and have all the parties

Sign the envelope and put it in a vault and

it was to be opened only in his presence

(App. on appeal p. 30 and 31). Ile stated

the agents told him that they would be de-

feating their purpose and that they had

other ways of getting the money and the best

thing for him to do was to give them the

money. He then relinquished the money

(App. on appeal p. 31).

REASONS FOR GRANTING WRIT

The evidence should have been

Suppressed because it was not obtained

under the authority of a search warrant

and thus illegally seized. There was no

valid consent to the seizure.

"It is well settled in the Fourth

and Fourteenth Amendment that a search

conducted without a search warrant issued

,

7

¥

ev

'

é

}

f

:

fi,

% ~

f

&

ki

5

p

WR

upon probable cause is 'per se unreason-

able...subject only to a few specifically

established and well delineated exceptions’.

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

88 S.Ct. 503; Coolidge v. New Hampshire, 403

U.S. 443, 454, 455; BT S.Ct. 2022; Chambers

v. Maroney, 399 U.S. 42, 51; 90A S.Ct. I975.

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 pur-

suant to consent. Davis yv. United States,

328 U.S. 582, 593; 66 S.Ct. 1256; Zap v.

United States, 328 U.S. 624, 630; 5st.

1277." Schneckloth v. Bustamonte, 92 S.Ct.

2041 (1973).

The sole question in this case was

whether there was a voluntary surrender of

the money in question to the F. B. I. agents.

In accord with the general principle

permitting an individual to waive constitu-

tional provisions intended for his benefit,

constitutional right to be secure in person

and effect against unreasonable search and

seizure may be waived. A distinction is

recognized between submission to apparent

authority of an officer and unqualified

consent. People v. Preston, 341 Ill. 407,

173 N.E. 383, 77 A.C.R. O31.

When an accused consents to a

search, he relinquishes the 4th Amendment

protection which prohibits unreasonable

searches and seizures; implicit in the very

nature of the term is the requirement of

voluntariness, and to be voluntary the con-

sent must be unequovical and specific and

freely and intelligently given. United

States v. Smith, 308 F.2d 57, 663 (2Cir 1962)

4

i

Cert. denied, 372 U.S. 90683 S.Ct. 717. The

burden of proof is on the government to estab-

lish by clear and positive testimony that

the accused's consent to a search of his

premises was voluntarily given. State v.

King, 44 N.J. 346, 209 A2d 110, 9 A.L.R.3d

It is important to remember that the

defendant was in a custodial environment

at the Portsmouth Police Headquarters. A.

p. 12. The defendant denied his guilt.

A. p. 11. No sane man would actually be

willing to have the police search his per-

son for stolen money which is certain to

be discerned. Certainly the defendant

would not have consented to a search un-

less he felt because of his custodial en-

vironment that he must do so. It is un-

disputed that he asked that a lawyer be

present before this was done. A. p. 15

and 16. A. p. 22.

The question involved here is not

whether the defendant was advised of his

constitutional rights under the Fourth

Amendment, but rather was he deprived

of his rights. Since consent to an

otherwise illegal search involves a waiver

of the right to be free from such searches

the consent in question must meet the test

of Constitutional waiver. United States v.

Blalock, 255 F.Supp. 268 (Ed.Pa.T966). That

is the waiver must meet two requirements.

It must be (1) voluntary, and (2) intelli-

gent. Judd v. United States, 89 U.S.App.

D.C. 64, ‘ :

When the defendant asked for an

attorney, this indicated that he was in-

sisting on his rights.

oh SPP ter

‘ sadetddtee at tee

*

oe STREET eT SIR Amro em re oe

de Sn we

",..-Consent to a search, in order to

be voluntary must be unequivocal, specific

and intelligently given, uncontaminated by

any duress or coercion, and is not lightly

to be inferred."" Rosenblatt v. Henderson,

389 F.2d 514 (6C 1968). When the defendant

asked for an attorney prior to the search,

no effort should have been made to dissuade

him from that right.

The burden of proving a valid waiver

of the right to be free from unreasonable i

searches and seizures rests upon the gov-

ernment. Bumper v. N.C. 391 U.S. 543, 88

S.Ct. 178. Consent must be freely given

to be effective. This means there must be

a total absence of coercion, express or

implied. Commonwealth v. Harris, 429 Pa.

215, 221; 239 A.2d 290 (1968). Mere ac-

quiescence in the orders, suggestions or :

requests of the police can never be equated ?

with consent. Judd v. U. S., Supra, Bumper

v. N. C., Supra.

And in Schneckloth v. Bustamonte,

Supra, the Court said in footnote number 29:

"By the same token, 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 for coercion when the ‘consent!

to a search was given by a person in

Custody."

OMANI OG

ESTA

In order to overcome the prima

facie unconstitutionality of the search

here involved the government relies

ELL GS LEE IAT RET MAES LTE Ng OTE GES SFI

De eae ee

Maes TWA 9 RN ARE RATS i ANI

solely on the asserted consent of the

defendant to the search; in other words,

a waiver by the defendant of his Fourth

Amendment rights. "However, rights given

by the Constitution are too fundamental

and too precious for waiver lightly to be

found." U. S. v. Blalock, 255 F.Supp.

268 (Pa.).

Apart from the question of the

voluntariness of consent as a fact question,

the search violated defendant's rights under

Miranda v. Arizona, 384 U.S. 436; 86 S.Ct. 1602.

During his interrogation, he was asked if

he had any money on him. He then asked

for an attorney to advise him of his rights

in this regard. Despite this, the agents

by his own admission procecded to procure

from him a "consent" to search. The very

purpose of the Miranda warnings are to

permit a defendant to refuse further in-

terrogation and allow the defendant to ob-

tain legal advice as to his rights. The

interrogating officer in any case, when

the defendant so expresses himself and

lodges such a request, should not continue

interrogation nor seek further to procure

consensual admission from him, whether in

the form of confessions, consents to search

waiver of privileges or otherwise. Cer-

tainly this is a vital or critical step in

his case, and having asked for counsel he

Was entitled to advice of counsel as to the

Consequences of what he was doing and as to

what would be required to obtain a search

Warrant." U.S. v. Fisher, (U.S. D.C. Minn.

1971). It should be noted that the Fisher

Case is quite similar in its facts to the

Case at hand.

>

"The right to counsel, and the

Miranda warnings informing the accused of this

oT

Ean ta DS ta Ba a PERS

TRE Pe

TATRA Wt eee gear Re rere cs stares mag fs PREIS ED

WNIT Maoh

i

right, while imposed to protect the 5th Amend-

ment rights in Miranda is more pervasive. It

is not linked solely to the protection of the

Fifth Amendment rights but applies in

every "critical" stage of proceedings.

U. S. v. Wade, 388 U.S. 218, 87 S.Ct. 1926

(1967). Certainly a request to produce evi-

dence that is central to the prosecution's

case is a critical stage of the proceedings

against the accused. The presence of

counsel is an effective check on the un-

knowing relinquishment of 4th Amendment

rights just as it is an effective check on

the unknowing waiver of 5th Amendment rights. 4

Therefore, production of evidence by an ac- ;

cused without the assistance of counsel or ;

without waiver of counsel, where, as in :

Miranda, the defendant is under arrest, can-

not be construed a knowing or intelligent :

act."'" U. S. v. Pelensky, 30 F.Supp. 976, ;

978, 979, (D.Vt. 1969). f

eee

Schneckloth v. Bustamonte, Supra, &

supports the proposition that evidence ob-

tained in a search pursuant to the consent of

a person not in custody is not rendered in-

admissible by the states failure to prove

that the consenting person knew he had a

Fourth Amendment right to withhold consent.

It does not hold that a person who demands

his rights, as in this case, is not entitled

to them. The Court in Schneckloth said at

page 2058: "In this case there is no evi-

dence of any inherently coercive tactics --

either from the nature of the police ques-

tioning or the environment in which it took

place. Indeed since consent searches will

normally occur on a person's own familiar

territory, the spectre of incommunicado

police interrogation in some remote station

house is inappropriate." And in the foot-

note the Court said, "...the present case

Pag SPD

REPENS LAT ORON PIES FER LEI MT EAL L S

i Ak te a

oO2s

BRE Rg

=

Sal Maat ROR a5 Sh

does not require a determination of what

effect custodial conditions might have on

a search authorized solely by an alleged

consent."

It should be remembered in the

Case at hand that the defendant was in a

custodial environment at police headquarters.

Several F.B.I. agents were present as well

as police officers. The pressure of police

authority was upon him. A distinction

should be drawn between submission to ap-

parent authority of officers and unqualified

consent. People v. Preston, Supra.

What possible use is the fact that

the accused was told of his right to

counsel, when the undisputed facts are

that when he requested counsel his re-

quest was ignored? With the burden of

proof resting heavily on the government,

the fact that in face of the defendant's

Claim that he was told that it would be

defeating the agents' purposes to call

his attorney, the government only called

one agent to testify while many agents

and police officers were present at the

time of the search. Surely there is

doubt here that the defendant voluntarily

and intelligently consented to the search.

ou

ao ae Bek i RS

. eee gos mma

NTR LOREAL LE PF ES SRERE GES =

+

CONCLUSION

Petitioner, after having been

advised of his rights declined to Sign a

waiver but was interrogated by Federal

Bureau of Investigation agents at police

headquarters. He was asked to show the

agents any money he had on his person and f

Stated that he wanted to put the money in it

¥

%

i

ERO LE LG POLLS LEI

IKE

ae SER

See!

-12- H

Pe as Cet aera a ea

a sealed envelope to be signed by all

present only to be opened on the advice

of his attorney. The only discrepancy in

his testimony and that of the Federal

: Bureau of Investigation Agent was whether

or not he was told he did not need an

attorney. After he requested a lawyer he

was further urged by the agents to show

them the money and he allowed the agents

to see the money and to record the serial

numbers therefrom. There was no showing

of probable cause for a search. Petitioner

was searched without a search warrant and

the facts show that he did not give a valid

consent to the search. Thus the evidence

taken should have been suppressed. Peti-

tioner respectfully requests for the reasons

set forth above, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

Ne ONE NOLS OE A LAE Ma

PSE NIE RL Ae

Lester E. Schlitz,

Of Counsel

LESTER E. SCHLITZ

Counsel for Petitioner

301 Central Building

Post Office Box 1137

Portsmouth, Virginia 23705

CERTIFICATE OF SERVICE

I hereby certify that three copies

of the petition for a writ of certiorari

in the case of Thomas J. Epps, Jr. v.

United States were deposited in the United

States mail, First Class prepaid, to Roger

-13-

TAL mer we +

Williams, Esq., United States Attorney,

P, O. Box 60, Norfolk, Virginia 23501,

Counsel for the United States of America,

on the lst day of October, 1973.

LAN EH ATA HAS AEN Vie SCOT La RS METAS. A URC

UNITED STATES COURT OF APPEALS

For the Fourth ‘Circuit

No. 73-1535

UNITED STATES OF AMERICA,

Appellee,

THOMAS JAMES EPPS, JR.,

Appellant.

Appeal from the United States District

Court for the Eastern District of Virginia,

at Norfolk. Walter E. Hoffman, Chief Judge.

Argued August 15, 1973

Decided September 14, 1973

Before WINTER, FIELD and WIDENER,

Circuit Judges.

Lester E. Schlitz, (Schlitz and Levy on

brief) for Appellant; Roger T. Williams,

Assistant United States Attorney, (Brian

P, Gettings, United States Attorney, on

brief) for Appellee.

— WO MAR OT Ue Ob De ROR 5 ath ep

PER CURIAM:

On the briefs and after oral argu-

ment, we find no reversible error.

AFFIRMED.

SE Stel certs ed Ls

Core nat 2 RE Tas Lae oS