# Petition for Rehearing — Epps v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1170%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Rehearing - **Published:** January 1, 1974 - **Citation:** 414 U.S. 1129 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1170%3A1. Public record. Not legal advice.