# Petition for Writ of Certiorari — Bates v. Indiana > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1336%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1974 - **Citation:** 415 U.S. 917 ## Text ee ig LIBRARY. ; Supreme Court, U. S. SUPR: |: >URT, U. 8. FILED NOV 29 1973 no.73-851 MICHAEL ROBAK, JR.,CL IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1973 JAMES BATES, SR., Petitioner vs. STATE OF INDIANA, Respondent PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT OF INDIANA Of Counsel: Counsel for Petitioner: Ralph R. Blume Donald D. Doxsee Stanley A. Levine 323 West Berry Street 344 Utility Bldg. Fort Wayne, Indiana 46802 Fort Wayne, Ind. Phone: 46802 219-422-3436 November, 1973 INDEX Opinions Below ......-«..-. Semiegiction ...s«+e+sr-+«eee @ Question Presented . ....... Constitutional Provisions Involved Statement of the Facts ...... Federal Question Raised in State Cour al J . = _ — J = a e e - Reasons for Granting Writ. .... Dn os & « &« «© + 6 « 6 @ 6 Appendix A - Opinion of the Court ep ee ee ee Appendix B - Petition for Re-Hearing. . . ‘© * Denial of Petition for. Re-Hearing ° . ° e ee ee e . . Appendix C - Petition for Transfer to Indiana Supreme Court. .. . Denial of Petition for Transfer Appendix D - Sentence of Trial Court o _ . J J . . s s ~ — a 7. Motion to Correct Errors. ... Pb td Rica HE atte AUTHORITIES Cases: Miranda v. Arizona (1966) 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 . 4, 5, Se F Orozio v. Texas (1969) 394 U.S. 324, 22 L.Bd.2a 311, 89 S. Ct. 10958 .- « §€ Shreckloth v. Bustamonte (1973) U.S. , 36 L.Ed.2d 854, 93 S.Ct. _—«‘¢6,, 8 Constitutional Provisions: Fifth Amendment Sixth Amendment Fourteenth Amendment Statutes: 28 U.S.C. $1257 (.3) * e * e e e o io e * 2 ii IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1973 = JAMES BATES, SR., Petitioner VS. STATE OF INDIANA, Respondent PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT OF INDIANA The petitioner, JAMES BATES, SR., prays that a Writ of Certiorari issue to review the opinion and judgment of the Indiana Court of Appeals rendered in this proceeding on March 28, 1973. A timely petition for re-hearing was denied on May 9, 1973, and a timely petition for transfer to the Supreme Court of Indiana was denied without opinion on September 4, 1973. OPINIONS BELOW The opinion of the Indiana Court of Appeals (Appendix A, pp. A-2 to A-7) was rendered on March 28, 1973, and is reported in ___ Ind. App. , 294 N.E.2d 185. The petition for re-hearing (Appendix B, pp. B-l to B-3) was denied without opinion (Appendix B, p. B-4) on May 9, 1973. The petition for transfer to the Supreme Court of Indiana (Appendix C, pp. C-1l to C-2) was denied without opinion (Appendix C, p. C-3) on September 4, 1973, and is not yet reported. JURISDICTION The order or judgment of the Indiana Court of Appeals was rendered March 28, 1973. A timely petition for re-hearing was filed and denied on May 9, 1973. A timely petition for transfer to the Supreme Court of Indiana was filed and denied without opinion on September 4, 1973. This petition is filed less than 90 days from the date of the Supreme Court of Indiana's denial of transfer. The jurisdiction _of this Court is invoked under 28 U.S.C. §1257(3). QUESTION PRESENTED The petitioner was arrested on a warrant charging professional gambling. Prior to the petitioner's arrest two police officers operating undercover on two separate occasions had conversations with the petitioner. On neither of these occasions was the petitioner advised of his rights. Over the objections of petitioner's counsel, evidence as to those conversations was admitted into evidence. The question presented then is whether the investigations had focused on the petitioner and whether the conversations constituted a custodial interrogation requiring that the petitioner be advised of his rights. . = ie * CONSTITUTIONAL PROVISIONS INVOLVED This case involves the following constitutional provisions: (1) The Fifth Amendment to the Constitution of the United States, which provides as follows: "No person .. . shall be compelled in any criminal case to be a witness against himself nor be deprived of life, liberty, or property, without due process of law... ." (2) The Sixth Amendment to the Constitution of the United States, which provides as follows: "In all criminal prosecutions, the accused shall enjoy the right .. . to have the assistance of counsel for his defense. (3) The Fourteenth Amendment to the Constitution of the United States, which provides as follows: "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States nor shall any state deprive any person of : ms | =e siidiaheeaaamnammain — atk emecaind life, liberty, or ag ght ..- --. without. dne process of law: .- nor deny to any person within its jurisdiction the equal protection of the laws." STATEMENT OF THE FACTS On March 15 and 16, 1971, Officers Combs and Grant of the Indianapolis, Indiana, Police Department, acting as undercover agents for the Fort Wayne, Indiana, Police Department, went to Jones’ Smoke Shop in Fort Wayne, Indiana, dressed in civilian clothes. The officers had been advised by the Fort Wayne Police that the petitioner was involved in selling numbers. On neither occasion did the officers advise the petitioner of his constitutional rights under the Miranda decision of this Court. The officers testified that on both occasions they entered Jones' Smoke Shop by the front door, walked past a counter in the front room through a door to the back room and observed the petitioner sitting at a table. Over the objection of counsel for the petitioner, Officers Combs and Grant testified as to the conversations they had with the petitioner about the alleged purchase of numbers slips and they intro- duced into evidence the purported numbers slips purchased during the conversations with petitioner. Without the evidence of the officers as to the conversations with the petitioner and the purported numbers purchases, there could have been no conviction. be RR aS Gliese s+ CNS Ete a ee ea FEDERAL QUESTION RAISED IN STATE COURT “@@@ae - @ «+-@ -“s @ In the Circuit Court ‘of Allen County: At the trial of this cause the federal question raised by this petition was raised by objections to the direct testimony of Officers Combs and Grant and by objections to the admission into evidence of the purported numbers slips purchased by Officers Combs and Grant. The objections to the testimony and evidence were specifically made on the bases of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and by the citation of the case of Miranda v. Arizona (1966) 384 U.S. 436, 86 S. Ct. 1602. The issue was preserved on appeal by the Motion to Correct Errors (Appendix D, pp. D-2 to D-5). In the Indiana Court of Appeals: The question was preserved by the filing of the above-mentioned Motion to Correct Errors in the Indiana Court of Appeals and in the arguments and briefs filed with the Court. The petition was further preserved in the petition for re-hearing (Appendix B, In the Supreme Court of Indiana: The federal question was preserved in the petitioner's petition to the Supreme Court of Indiana to accept transfer of the case (Appendix C, pp. C-1l to C-2). WREST GS EEL OGLE LAE LO PATS w : ts sa elec REASONS FOR GRANTING WRIT ‘“* “Phie* court bélow has decideti a Federal ~ estfon of substance in a way probably not tn accord with = ERS net ey of this Court. The question invo s whether oral statements of a suspect obtained from him by undercover police officers following interrogation but prior to his arrest, are admissible against the suspect during his criminal trial on the charge resulting from the interrogation, although the accused had not been advised of constitutional rights to remain silent and to have the assistance of counsel as set forth in this Court's holdings in Miranda v. Arizona (1966) 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694, and Orozio v. Texas (1969) 394 U.S. 324, 22 L.Ed.2d. 311, 89 S. Ct. 1095, and Schreckloth v. Bustamonte (1973) U.S. L.Ed. 2d. 854, 93 S. Ct. al ame The question presented concerns the problem of undercover police officers obtaining sought after incriminating statements from suspects prior to their arrest or physical custody by the police and then using these statements against the suspect without any effort whatsoever to obtain from the suspect any express or implied waiver of his right to remain silent and to have the assistance of counsel. It is clear and undisputed from the State's evidence in this case that petitioner's statements were not the result of a “general on-the-scene questioning", but were indeed the result of a planned and intentional inquiry by police into the activities of this particular suspect which was obviously designed to obtain his arrest and conviction. a 4 a4 _— any CONROE ” Bae lke in : It is also obvious from the evidence 4 that your petitioner did not speak spontaneously ‘or voluntarily rior did*he manifest-any-desire .-. to give a confession of his acitivities in the sale of "numbers", illegal in the State of Indiana. The statements obtained by the undercover police were coerced or "tricked" out of your petitioner by subterfuge and device and as such cannot be considered a voluntary confession constitutionally admissible, perhaps even under the pre-Miranda authority of this Court, but surely not after. 5 sci Wie aN RE ERE TERE papas anes ann SS ie aad The Court of Appeals of Indiana in sustaining the trial court's admission into evidence of your petitioner's out- of-court statements cites at length from Miranda v. State of Arizona, supra, at page 187 and then holds: The above language is Clear that "[t])he requirements of warning and waiver imposed by Miranda v. [State of] Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, apply only to custodial interrogation." New v State (1970), 254 Ind. 307, at 314, 259 N.E.2d 696 at 700. ; In the instant case, there is no evidence of "custodial interro- gation", the freedom of Bates was not restrained. On both March 15, 1971, and March 16, 1971, Bates was free to sell numbers, or not to sell numbers, to the police. He chose the former. Miranda does not require suppression of any of the evidence in this cause. — ISD) Hoty BOORMAN Pia ate EBS here sense From this language it is submitted that the only criteria used by the Indiana Court was to determine whether there was an‘ arrest or other physical restraint of your petitioner. : There was no effort by the Court to consider 3 whether your petitioner's freedom of action 4 had been deprived in any significant manner id Other than by physical control or arrest ; as such. In addition, the Indiana Court made no effort to find or rely on any express or implied waiver of your petitioner's right to remain silent and to have the assistance of counsel as required by this Court's opinion in Schneckloth v. Bustamonte (1973), supra. «- ad - 274 Nee. 2d 245, and Dickerson. ve. State (1972 2) Ind. ° 270 N.E. C-1 a SNE AI oo 2d 845, in which this Court held that the Miranda warnings must be given when the individual is first subjected to police inter- rogation at the point that he is deprived of his “freedom of action in any significant way", whether or not such police ques- tioning occurs while the indivi- dual is “in custody” at the po- lice station or any other place or location. In addition, to be admissible in evidence over Mir- anda objections the statements and answers of those interroge- ted must have been made “freely, voluntarily, and spontaneously” and not in response to police interrogation in an answeer- compelling atmosphere. Contrary to these precedents the Indiana Court of Appeals has ruled that the requirement for Miranda warr- ings and their waiver apply only to “custodial interrogation” when physical freedom of move- ment is actually restrained by the interrogating police officers. s/ Ralph R. Blum pis Re Blume 344 Utility Building Fort Wayne, Indiana 46802 219-423-3525 Attorney for Defendant- Appellant C=-2 STATE OF INOIANA CLERK OF THE SUPREME COURT AND COURT OF APPEALS BILLIE R. McCULLOUGH, CLERK 217 STATE HOUSE INOIANAPOLIS, INOIANA 46204 TELEPHONE 633-5200 NO. 3-972A61 James Bates, Sr. V. State of Indiana You are hereby notified that the Indiana Su- preme Court has on this day Denied Appellant's Petition to Transfer. Prentice, Acting C.J. All Justices Concur Please acknowledge receipt of this notice in order that our records may show that you have been notified of this action- WITNESS my name and the seal of said Court, this 4th day of Sept ember, 1973. (SEAL) S/ BILLIE R. McCULLOUGH er upreme Court an Court of Appeals seiidliceieeion mn COURT STATE OF INDIANA IN THE ALLEN CIRCUIT CAUSE NO. 14654 COUNTY OF ALLEN STATE OF INDIANA vs. JAMES BATES SENTENCING It is, therefore, ordered, adjudged and decreed by the Court thet defendant, James Bates, Sr-, is guilty of the offense of pro- fessional gambling, 4s charged in the affida- vit, that he be and he is hereby sentenced to the Indiana State Farm for a period of six (6) months, and that he be fined in the penel sum of Five Hundred ($500) Dollars, and that he pay and satisfy the costs herein taxed. (TR. p.» Sl, 1. 18 to l- 26.) /s/ Jack P. Ounten The Honorable Jack P. OUNteN, Special Judge D-1 STATE OF INDIANA IN THE ALLEN CIRCUIT SS: COURT COUNTY OF ALLEN ) CAUSE NO. 14654 STATE OF INDIANA vs. JAMES BATES DEFENDANT'S MOTION TO CORRECT ERRORS Comes now the Defendant James Bates and files herewith the following Motion to Correct Errors as follows: 1. The decision of the Court is not supported by sufficient evidence upon all ne- cessary elements of the crime of “profession- al gambling” as charged in the Affidavit filed herein, in thats A. The State failed to prove beyond @ reasonable doubt that the Defendant: | (1) Knowingly engaged in pro- fessional geabling;: (2) Accepted or offered to ac- cept money or other things of value risked in gambling; (3) Accepted money or other things for a profit; (4) Affected the public by any activity on his part; (S) Owned, controlled, and main- tained gambling lotteries or numbers games or sold chances 0-2 therein. B. The State failed to present evi- dence in this case, one based solely on cir- cumstantial evidence, which was so conclusive in character or which pointed so surely and unerringly to tine guilt of the Defendant that every reasonable hypothesis of innocence was excluded. 2. Uncorrected error of law occurred and was properly raised in the proceedings at the trial in thats The Court admitted into evidence cer- tain statements of the Defendant and slips of paper obtained by the police officers from the Defendant over the timely objection of the Defendant and such evidence was obtained with- out the police officers having first advised the Defendant of his Constitutional rights to remain silent and to have the assistance of counsel, all as required by the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution. STATEMENT OF FACTS AND GROUNDS l. As to the specification of error in Paragraphs 1A and 18 above, the facts and grounds are: The only evidence introduced by the State during the course of the trial involved a single isolated incident in which police officers D-3 paid the Defendant a few cents and they obtained in return slips of paper bearing numbers which they had quoted to the Defendant. This evidence is clearly not sufficient to prove that Defendant was engaged in professional gambling as alleged in the Affidevit filed in this cause; and is not so conclusive in character nor does it so surely and unerringly point to the quilt of the Defendant as to exclude every rea- sonable hypothesis of Defendant's innocence in this pure case of cir- cumstantial evidence. 2. As to the specification of error in Paragraph 2 above, the facts and grounds are: During the course of the trial of this cause to the Court, the Court over the timely objection of the Defendant, admitted into evidence certain figures written thereon by Defendant, and other actions and statements of Defendant, which were induced and obtained by the police officers acting in their official capacity during an investigation of Defendant by the officers at a time when Defendant was significantly deprived of his freedom of action and before he had been advised of his Constitutional rights to remain silent and to have the assistance of counsel; all as required by the Uni- ted States Supreme Court in its decision in Miranda v. Arizona (1966) 384 U.S. 436. WHEREFORE, Defendant prays that this Court grant Defendant's Motion to Correct Errors and enter a dismissal of this cause of D-4 of action. BLUME, WYNEKEN, LEVINE & CLIFFORD BY: Let op ie Re Slume p ume 344 Utility Building Fort Wayne, Indiana 46802 Phone: 219-423-3525 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1336%3A1. Public record. Not legal advice.