Petition for a Writ of Certiorari — DeBerry v. Kentucky

i

REME CouRT, U, ey

IN THE

SUPREME COURT OF THE UMTED STATES

October Term, 1974

en & Ee 9 04

CASWELL DEBERRY Petitioner

COMMONWEALTH OF KENTUCKY Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

KENTUCKY COURT OF APPEALS

JOSEPH G. GLASS

425 South Fifth Street

Suite 201

Louisville, Kentucky 40202

Counsel for Petitioner

WESTERFIELD-BONTE CO., INC., 619 W. KENTUCKY, LOUISVILLE, KY.

INDEX

PAGE

RR Or irl ucaatd CApaueuheeau pein ean ii

sc ccccchente ddan seebanieeebeeeces 1

Ee ee ee 1

Question Presented. .. ............... cece eee 2

Constitutional Provisions Involved... ............. 2

Statement of the Case... ......... 2 ccc cece ce eees 2- 4

Reasons for Granting the Writ... ................. 4-30

NE oi oko ina vile Vwebeewe ener eeeeeia ts 30

Appendix A—Opinion of the Court by Commissioner

IN 5 os es ecivexcotasceeeweneews 31-36

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en

CITATIONS

Cases: PAGE

Agnello v. United States, 269 U. S. 20, 46 S. Ct. 4, ©

TO L. Bd. 145 (1925)... ccc esccccccccccveees 29

Ballard v. Commonwealth, Ky., 462 S. W. 2d 905

CU ko soe is ei cas curses cenraweensess erses 23

Bays v. Commonwealth, Ky., 486 S. W. 2d 706

|, : Priore r Tre tr 26

Beck v. Ohio, 379 U. S. 89, 85 S. Ct. 223, 13 L. Ed.

Dd 142 (1964)... nec cccccccevcccecccceecees 12-16

Byars v. United States, 273 U. S. 28, 47 S. Ct. 248,

71 L. Bd. 530 (1927)... «0... eee eeccceceeceeces 29

Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280,

69 L. Ed. 543 (1925)... .. 2... cece cece eee eeees 17-18

Chambers v. Maroney, 399 U. S. 42, 90 8. Ct. 1975,

26 L. Ed. 2d 419 (1970)... 2... cee eee eee eeees 23-24

Draper v. United States, 358 U. S. 307, 79 S. Ct. 329,

3 L. Ed. 2d 327 (1959)... .. 2. ce ence eecevcess 8 9

Government of the Virgin Islands v. Rijos, 285 F.

Supp. 126 (1968)... ....-.-- eee eee erences 8

Henry v. United States, 361 U. S. 98, 80 S. Ct. 168,

4 L. Ed. 2d 134 (1959)..... 2... cece eee eens 9-11, 29

Jones v. United States, 357 U. S. 493, 78 8. Ct. 1253,

2 L. Bd. 2d 1514 (1958)... 2. cece eee e ec ecees 29

Marcus v. Search Warrants, 367 U. S. 717, 81S. Ct.

1708, 6 L. Ed. 2d 1127 (1961)........--------- 29

Phillips v. Commonwealth, Ky., 473 S. W. 2d 135

ee errr rere tee Terie ee 24-25, 26

Scamahorne vy. Commonwealth, Ky., 376 8. W. 2d

gi arate dream nro earee v4

Shull v. Commonwealth, Ky., 475 S. W. 2d 469

POE oo vcbocawaksceccassannesevsnesnat ten 26

Sibron v. New York, 392 U. S. 40, 88 8S. Ct. 1889, 20

we RC ge. | erewreererrerie cee 27

Terry v. Ohio, 302 U. S. 1, 88 S. Ct. 1869, 20 L. Ed.

Dd GEO (19GB). . 2... cer ccccvcsceces 16-17, 25-26, 29

United States v. Davis, 459 F. 2d 458 (9th Cir.,

rere re rrr rr Trt rrr tre. 25

ASU BANARAS RO ER A —

iii

Cases: (Cont'd) —

United States v. DiRe, 332 U. S. 581, 68 S. Ct. 222,

OF L, Wid. B10 (1948)... . cc cccccsevereseseces 29

United States v. Harris, 321 F. 2d 739 (6th Cir.,

res rrr rrr re rrr it cect 21-23

United States v. James, 378 F. 2d 88 (6th Cir.,

rrr rrr rr rrr TT Ty crete Tt 19-20

Whiteley v. Warden, 401 U. S. 560, 91 S. Ct. 1031,

98 L. Ed. 2d 306 (1971)......-cccccecscecees 27-28

Wong Sun v. United States, 371 U.S. 471, 83 S. Ct.

407, 9 L. Ed. 2d 441 (1963).......---- +2. eee 29

Worthington v. United States, 166 F. 2d 557 (6th

Ce, TOD, a x cas tarccecarccectosscssxeuesss 8

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1974

No.

CASWELL DEBERRY - - - Petitioner

Vv.

CoMMONWEALTH OF Kentucky - - Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

KENTUCKY COURT OF APPEALS

The petitioner, Caswell DeBerry, respectfully prays

that a Writ of Certiorari issue to review the judgment

and opinion of the Kentucky Court of Appeals.

CPINION BELOW

The opinion of the Kentucky Court of Appeals, not

yet reported, appears in the Appendix hereto.

JURISDICTION

The Judgment of the Kentucky Court of Appeals

was rendered on June 29, 1973. <A timely petition for

rehearing was overruled on October 26, 1973. This

Petition for Writ of Certiorari was filed within ninety

(90) days of that date. Jurisdiction is invoked under

28 U.S.C. § 1257(3).

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2

QUESTION PRESENTED

Whether the Trial Court erred when it overruled peti-

tioner-appellant’s motion to suppress the evidence of his

arrest, the search of the truck in which he was arrested

and the seizure of the tires which were located in the truck.

CONSTITUTIONAL PROVISIONS INVOLVED

The Fourth Amendment to the Constitution of the

United States provides:

The right of the people to be secured in their per-

sons, houses, papers, and effects, against unreason-

able searches and seizures, shall not be violated,

and no Warrants shall issue, but upon probable

cause, supported by oath or affirmation, and par-

ticularly describing the place to be searched, and

the persons or things to be seized.

Section 10 of the Constitution of the Commonwealth

of Kentucky provides:

The people shall be secured in their persons,

houses, papers and possessions, from unreasonable

search and seizure; and no warrant shall issue to

search any place, or seize any person or thing, with-

out describing them as nearly as may be, nor

without probable cause supported by oath or

affirmation.

STATEMENT OF THE CASE

Between 5 p.m., November 19, 1970 and 10 am.,

November 20, 1970 an outbuilding belonging to Motor

Parts Depot, Louisville, was broken into and an esti-

mated one hundred twenty-six (126) tires were stolen

3

(Transcript of Evidence, pp. 64-65, hereinafter re-

ferred to as T.E.). At approximately 9 p.m. on No-

vember 20, 1970 the petitioner with others, was ar-

rested and charged with Knowingly Receiving Stolen

Property, namely forty-two (42) tires (T.E., pp. vt,

80). Thereafter, the case was ‘filed away’’ in Louis-

ville Police Court on June 7, 1971 because of the death

of an arresting officer. It was not until January, 1972

that the matter was submitted to the Jefferson County

Grand Jury (Transcript of Record, p. 2, hereinafter

referred to as T.R.). On April 18, 1972 the case was

filed away with leave to reinstate for lack of prosecu-

tion (T.R., p. 7). Then, on April 20, 1972 the case

was reinstated (T.R., p. 8).

On October 4, 1972 petitioner was heard on his

Motion to Suppress Evidence, which motion was over-

ruled (T.E., pp. 40, 58). Trial commenced on that

date, wherein the jury returned a verdict of guilty and

fixed petitioner’s sentence at three (3) years (T.E.,

p. 134).

At the hearing on petitioner’s Motion to Suppress

Evidence, Sgt. David Davis testified that the desk man

in the Detective Bureau had received a telephone call

alleging that stolen tires were in a truck located in an

alley, behind a home in the 900 block of East Madison

(T.E., pp. 4, 14). However, Officer Eugene Roberts,

one of the two initial arresting officers testified that

they were not given any specific information prior to

the stake out, except that they were to look for stolen

property. No description of the property was given to

him by the Commanding Officer, Sgt. Davis (T.E., pp.

8, 10).

At approximately 9 p.m. on November 20, 1970

the petitioner, with another, was stopped by Officer

Roberts and his partner, now deceased, as he was

egressing from an alley in the rear of the 900 block

of East Madison Street, Louisville (T.E., pp. 9, 14).

The petitioner was a passenger in a pannel truck at

the time of his arrest.

Sgt. Davis testified that the information which he

received was “‘that there was a truck parked at this

particular location and that it was loaded with tires,

and that they had come out of a breakin on College

Street’? (T.E., p. 17). There was a truck parked in

the back yard of a house in the 900 Block of East Madi-

son, which was described by Officer Roberts as an old

green truck (T.E., p. 5). However, the truck which

the petitioner was riding in was a rental truck and had

only been in the alley for ‘‘about twenty (20) minutes”’

according to earlier testimony given by Officer Roberts

in a Police Court Hearing (T.E., p. 27). At the time

of the arrest the driver of the truck had not committed

any traffic offenses according to Officer Roberts, the

arresting officer (T.E., p. 9).

REASONS FOR GRANTING THE WRIT

The fundamental question presented the Courts

from the commencement of this lawsuit was whether

the arresting officers had grounds, or probable cause,

to arrest, or even stop the petitioner. Considering the

testimony of the arresting officer, Eugene Roberts, and

RRS NBR Sn aS RG Ea Pi NR ARO RES OOS PSP RT PY ya om

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other related testimony, the petitioner contends that

there was no lawful reason, or probable cause, to stop

the vehicle in which he was riding the night of his

arrest, November 20, 1970. _

Officer Roberts testified that he and his partner,

Ray Oyler, now deceased due to a traffic accident, re-

ceived an order from Sgt. David Davis, their immedi-

ate superior, to surveil a house in the 900 block of East

Madison Street, Louisville, Kentucky. Officer Roberts

testified that

We had received information from our Command-

ing Officer through the switchboard that a ship-

ment of stolen property was housed in a—at a

home in the rear of 900 East Madison and that it

would be moved that night. And we staked out

the location and when this truck left the location,

well, we stopped it at the mouth of the alley ( T.E.,

p. 4).

Officer Roberts testified further that he did not know

what stolen property the officers were to be looking

for, not even at the time the arrest was effected. His

only knowledge was that ‘it was supposed to be stolen

property” (T.E., p. 8). The officers also had no knowl-

edge about who was involved in the matter (T.E., pp.

9, 10).

At the hearing, testimony was adduced that a tele-

phone communication was received by the officer work-

ing the desk that stolen property was located at a house

in the 900 block of East Madison, Louisville, Kentucky.

A description of a particular house was apparently

given (T.E., pp. 4, 13-16). At approximately 6 p.m. on

Seg SARE RARER

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November 20, 1970 Officer Roberts and his partner,

with others, were assigned to surveil the area in ques-

tion (T.E., p. 6). Apparently, the various officers ex-

changed locations during this surveillance (T.E., p. 6).

About the hour of 9 p.m., that same evening, Officer

Roberts received a radio communication from Detec-

tive Kenneth Newcomb that a truck was moving out

of the alley adjacent to the point of Roberts’ surveil-

lance position (T.E., pp. 8, 78). Reberts and his part-

ner stopped the truck by blocking the mouth of the

alley (T.E., p. 3). It was only after the arrest was

effected that Roberts was able to determine that the

truck contained some forty-two (42) tires which were

later alleged to have been stolen from Motor Parts

Depot (T.E., p. 10).

Sgt. Davis, through his testimony at the hearing,

stated that he ‘‘had information from the detective

desk that it (the truck) was loaded with tires from a

break-in on College Street” (T.E., p. 18). Curiously

enough, however, this significant information was not

communicated to the other men on surveillance detail.

As previously indicated, Roberts testified that he was

not aware what the ‘‘stolen property’’ was supposed

to be (T.E., p. 10). This testimony was reaffirmed by

Roberts, at trial (T.E., p. 105).

Equally curious are the various descriptions of the

truck parked in the yard of the house under surveil- |

lance. Roberts testified that the truck in the yard was

a ‘‘green old truck”’ (T.E., p. 5). Davis testified that

it was a ‘‘white panel truck parked well up into a

yard”’ (T.E., pp. 19-20).

LCE RENE SG ATL Ne SENS BARI EEE SS RIED PRR LESLIE SIO ———

‘

One fact which is undisputed in this ease is that

no officer corroborated whatever information was re-

ceived by the desk man. Officer Roberts testified that

he and his partner rode through the alley in question,

saw a truck parked in a yard and went on to park

further down the alley (T.E., p. 6). They later were

relieved at that position by Detective Newcomb, and

they moved on to an adjacent street (T.E., p. 26).

Davis testified that he did not even go through the al-

ley because he feared that he could ‘‘blow the whole

operation’ (T.E., p. 17). In point of fact no suspi-

cious activity was viewed during the entire surveil-

lance operation (T.E., p. 9).

In sum and substance, the arrest of this petitioner

was based upon a telephone message received at the

Detective Bureau, which may or may not have given

particulars about stolen property to be moved from a

location in the 900 block of East Madison. If partic-

ulars were given, it is apparent that they were not

communicated from the Commanding Officer, Sgt.

Davis, to his men. Thereafter, without any corrobo-

ration, except that a truck was parked in the alley for

twenty ( 20) minutes, the police officers moved in and

effected an arrest of the occupants of the vehicle. The

immediate arresting officer did not even know what

he was to be watchful for, once they stopped the truck

in the alley.

The petitioner submits to this Court that none of

the facts and circumstances testified to and about at

the hearing on the Motion to Suppress or at the subse-

quent trial established any reasonable grounds, or

8

more properly, any probable cause for the arrest of

the defendant, and the subsequent search and seizure.

Neither Sgt. Davis or Officer Roberts had any infor-

mation from a responsible source on which they could

base their investigation, and their later actions. They

were acting upon a “‘tip’’, and no more. On exami-

nation both officers acknowledged that they were un-

able to corroborate, through independent investiga-

tion, any information which they received. They were

simply on a ‘‘fishing expediticn’’. It has long been

established under the law that an arrest is never jus-

tified by what it subsequently turns up.

It is now, and has always been, the law that the

facts necessary to uphold an arrest without a warrant

must be sufficiently strong to support the issuance of

a warrant for arrest. Worthington v. United States,

166 F.. 2d 557 (1948). Moreover, in considering the law-

fulness of an arrest without a warrant the question is

whether law enforcement agents could have procured

a warrant for the arrest of the person on the informa-

tion which compelled them to act. Government of the |

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Virgin Islands v. Rijos, 285 F. Supp. 126 (1968). More

succinctly, the ‘‘probable cause’’ factor must exist pre- |

ceding the arrest for the arrest to be upheld. |

This Court in Draper v. United States, 358 U. S. |

307, 79 8. Ct. 329, 3 L. Ed. 2d 327 (1959), at page 313, |

has stated that:

Probable cause exists where the facts and circum-

stances within the arresting officers’ knowledge |

and of which they had reasonably trustworthy in- |

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ESATA EMT SMILES DB A TAL EREIL GD IEE INES EL ROME PLT EN Pea

formation are sufficient in themselves to warrant

a man of reasonable caution in the belief that an

offense has been or is being committed.

In a case decided later that same year, Henry v.

United States, 361 U. S. 98, 80 S. Ct. 168, 4 L. Ed.

2d 134 (1959), at page 100-102, this Court stated:

The requirement of probable cause has roots that

are deep in our history. The general warrant, in

which the name of the person to be arrested was

left blank, and the writs of assistance against

which James Otis inveighed, both perpetuated the

oppressive practice of allowing the police to arrest

and search on suspicion. Police control took the

place of judicial control, since no showing of ‘prob-

able cause’ before a magistrate was required. The

Virginia Declaration of Rights adopted June 12,

1776, rebelled against that practice: . . . The

Maryland Declaration of Rights (1776) was equal-

ly emphatic: . . . and see North Carolina Dec-

laration of Rights (1776) .. .

That philosophy later was reflected in the

Fourth Amendment. And as the early American

decisions both before and immediately after its

adoption show, common rumor or report, suspi-

cion, or even ‘strong reason to suspect’ was not

adequate to support a warrant for arrest. And

that principal has survived to this day.

Evidence required to establish guilt is not nec-

essary. On the other hand, good faith on the part

of the arresting officers is not enough. Probable

cause exists if the facts and circumstances known

to the officer warrant a prudent man in believing

that the offense has been committed . . . Itis

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important, we think, that this requirement be

strictly enforced, for the standard set by the Con-

stitution protects both the officer and the citizen

, . And while a search without a warrant is,

within limits, permissible if incident to a lawful

arrest, if an arrest without a warrant ts to support

an incidental search, it must be made with prob-

able cause. (Emphasis added.)

The facts of Henry v. United Stutes, supra, are con-

siderably stronger than the facts of the matter herein.

In Henry, supra, FBI agents received information

from the defendant’s employer, implicating the de-

fendant in an interstate whiskey shipment theft. After

considerable surveillance the agents observed the de-

fendant, on two (2) separate occasions, place cartons

in his automobile. The defendant was stopped there-

after and he was heard to say, ‘‘It is the G’s—tell him

(you) just picked me up”. Contraband, in the form

of stolen radios was subsequently discovered.

In reversing the conviction, this Court stated at

pages 103-104.

. when the officers interrupted the two men

and restricted their liberty of movement, the ar-

rest, for purpose of this case, was complete. It is,

therefore, necessary to determine whether at or

before that time they had reasonable cause to be-

lieve that a crime had been committed. The fact

that afterwards contraband was discovered is not

enough. An arrest is not justified by what the

subsequent search discloses, as Johnson v. United

| States, 333 U. S. 10, 68 S. Ct. 367, 92 L. Ed. 436,

| supra, holds.

8 MEY Qoeaay : - lait

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It is true that a federal crime had been committed

at a terminal in the neighborhood, whiskey having

been stolen from an interstate shipment. Peti-

tioner’s friend, Pierotti, had been suspected of

some implication in some interstate shipments, as

we have said. But as this record stands, what those

shipments were and the manner in which he was

implicated remain unexplained and undefined.

The rumor about him is therefore practically

meaningless. On the record there was far from

enough evidence against him to justify a magis-

trate in issuing a warrant . . . Riding in the

car, stopping in am alley, picking up packages,

driving away—these were all acts that were out-

wardly innocent . . . To repeat, an arrest is not

justified by what the subsequent search discloses.

Under our system suspicion is not enough for an

officer to lay hands on a citizen. It is better so the

Fourth Amendment teaches, that the guilty some-

times go free than the citizens be subject to easy

arrest. (Emphasis added.)

The petitioner urges that at the time of his arrest

the police lacked the sufficient probable cause to make

anarrest. Officer Roberts had no personal knowledge

of the case whatsoever, and was in the vicinity merely

because he had been directed there by a superior of-

ficer. As argument, assuming there was, in fact, an

informant, anonymous at this point, that informant

was not known tu Officer Roberts or Sgt. Davis, nor

did they know if anyone in their office knew or knew

of the informer. Their actions, by their own testi-

inony, were based upon third, fourth of fifth hand in-

12

ad o @ «= e© @- 4 id eo-0-lUC mh CO . se @ +-*4# @ a.m eh 4.+S e2:-+@@-«e -_ae

formation received by their office and relayed to them.

All that they saw prior to the arrest of the appellant

was a truck going down the alley. On this basis they

| set the arrest in motion. It should not be enough.

It is argued that the information in the possession

of the police without more, was not sufficient to apply

to a neutral magistrate for an arrest warrant because

it would not sustain the burden of probable cause.

There simply was not sufficient information with which

to base an arrest. The events of the evening of No-

vember 20, 1970, which culminated in the arrest of Pe-

titioner added no more to the aspect of probable cause.

It was not until after the decision to arrest had been

made; the arrest effected; and the subsequent search

and seizure that any real evidence was adduced. ‘This

evidence should have been suppressed by the trial

Jourt because it was the result of an arrest based upon

‘‘mere suspicion’? and not probable cause, and was

illegal.

The Supreme Court in Beck v. Ohio, 379 U. 8. 89,

85 8. Ct. 223, 13 L. Ed. 2d 142 (1964), a case strikingly

similar to this matter, stated at page 91:

The constiutional validity of the search in

this case, then, must depend upon the constitutional

validity of petitioner’s arrest, whether that arrest

was constitutionally valid depends in turn upon

whether, at the moment the arrest was made, the

officers had probable cause to make it—whether

at that moment the facts and circumstances within

their knowledge and of which they had reasonably

OEE GE SIE PRION I LE TTL LE IA LIE NG IE INLET ONE III LS SALE SE LINE I IE SEI ERLE CHIN

13

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trustworthy information were sufficient to warrant

a prudent man in believing that the petitioner had

committed or was committing an offesense .. .

‘The rule of probable cause is a practical, non-tech-

nical conception affording the best compromise that

has been found for accommodating . . . often op-

posing interest. Requiring more would unduly

hamper law enforcement. To allow less would be to

leave law-abiding citizens at the mercy of the of-

ficers whim or caprice.’ Brinager v. United States,

338 U. S. at 176, 93 L. Ed. at 1891.

(pp. 93-94) ... As to the officer’s own knowledge

of the petitioner before the arrest, the record shows

no more than that the officer ‘had a police picture

of him and knew what he looked like,’ and that the

officer knew that the petitioner had ‘a record in con-

nection with clearing house and scheme of chance.’

Beyond that, the officer testified only that he had

‘information’ that he had ‘heard reports’, that

‘someone specifically did relate that information’

and that he ‘knew who that person was.’ There

is nowhere in the record any indication of what

‘information’ or ‘reports’ the officer had received

or beyond what has been set out above, from what

source the ‘information’ and ‘reports’ had come.

The officer testified that when he left the station, ‘I

had in mind looking for (the petitioner) in the

area of East 115th Street and Beulah, stopping

him if I did see him make a stop on that area.’

But the officer testified to nothing that would in-

dicate that any informer had said that the peti-

tioner could be found at that time and place. Cf.

Draper v. United States, 358 U. S. 307, 79 S. Ct.

329, 3 L. Ed. 2d 327. And the record does not show

14

"7°" Guat ‘the ‘oficens saw the’ petitioner ‘stop’ ‘before

they arrested him or that they saw, heard, smelled,

or otherwise perceived anything else to give them

ground for belief that the petitioner had acted or

was then acting unlawfully .. .

(pp. 96-97) An arrest without a warrant bypasses

the safeguards provided by an objective predeter-

mination of probable cause, and substitutes instead

the far less reliable procedure of an after-the event

justification for the arrest or search, too likely to

be subtly influenced by the familiar shortcomings

of hindsight judgment. ‘Whether or not the re-

quirements of reliability and particularity of the

information on which am officer may act are more

stringent where an arrest warrant is absent, they

surely cannot be less stringent than where an ar-

rest warrant is obtained. Otherwise, a principal

incentive now existing for the procurement of ar-

rest warrants would be destroyed’ Wong Sun v.

United States, 371 U. 8. 471, 479, 480, 83 8. Ct.

407, 9 L. Ed. 2d 441, 450. Yet even in cases where

warrants were obtained, the Court has held that

the Constitution demands a greater showing of

probable cause than can be found in the present

record. Agular v. Texas, 378 U. 8. 108, 84 S. Ct.

1509, 12 L. Ed. 2d 723; Giordello v. United States,

357 U. S. 430, 73 S. Ct. 1245, 2 L. Ed. 2d 1503;

Nathanson v. United States, 290 U. S. 41, 548. Ct.

11, 78 L. Ed. 159.

When the constitutional validity of an arrest is

challenged, it is the function of a court to determine

whether the facts available to the officers at the

moment of arrest would ‘warrant a man of reason-

able caution in the belief’ that an offense has been

tra TNR NONE I mien : LED LE MELEE SNS SENT IS PLE IONE

neon tA te

15

committed. Carroll v. United States, 267 U. S. 132,”

162, 45 S. Ct. 280, 69 L. Ed. 543, 555, 39 ALR 790.

If the court is not informed of the facts upon

which the arresting officers acted, it cannot prop-

erly discharge that function.

All that the trial court was told in this case was

that the officers knew what the petitioner looked

like and knew that he had a previous record of ar-

rests or convictions for violations of the clearing

house law. Beyond that, the arresting officer who

testified said no more than that someone (he did

not say who) had told him something (he did not

say what) about the petitioner. We do not hold

that the officer’s knowledge of the petitioner’s

physical appearance and previous record was

either inadmissable or entirely irrelevant upon the

issue of probable cause . . . But to hold that

knowledge of either or both of these facts consti-

tuted probable cause would be to hold that anyone

with a previous criminal record could be arrested

at will.

It is possible that an informer did in fact relate

information to the police officer in this case which

constituted probable cause for the petitioner’s ar-

rest. But when the constitutional validity of that

arrest was challenged, it was incumbent upon the

prosecution to show with considerable more spec-

ificity than was shown in this case what the in-

former actually said, and why the officer thought

the information was credible. We may assume that

the oficers acted in good faith in arresting the peti-

tioner. But ‘good faith on the part of the arrest-

ing officer is not enough.’ Henry v. United States,

361 U. S. 98, 102, 80 S. Ct. 168, 4 L. Ed. 2d 134, 138.

16

If subjective good faith alone were the test, the

protections of the Fourth Amendment would evap-

orate, and the people would be ‘secure in their per-

sons, houses, papers, and effects,’ only tm the dis-

cretion of the police (Emphasis added).

In Terry v. Ohio, 302 U.S. 1, 88 8S. Ct. 1869, 20 L.

Ed. 2d 889 (1968), this Court at page 20 stated:

. We do not retreat from our holdings that

the police must, whenever practicable, obtain ad-

vance judicial approval of searches and seizures

through the warrant procedure, see é.g., Katz v.

United States, 389 U. S. 347, 88 S. Ct. 507, 19

L. Ed. 2d 576 (1967) ; Beck v. State of Ohio, 379

89, 96, 85 S. Ct. 223, 228, 13 L. Ed. 2d 142 (1964) ;

Chapman v. United States, 365 U. S. 610, 81 S. Ct.

776, 5 L. Ed. 2d 828 (1961), or that in most in-

stances failure to comply with the warrant require-

ment can only be excused by exigent circumstances,

see e.q., Warden v. Hayden, 387 U.S. 294, 87 S. Ct.

1642, 18 L. Ed. 2d 782 (1967) ; Cf. Preston v. United

States, 376 U. S. 364, 367-68, 84 S. Ct. 881, 884, 11

L. Ed. 2d 777 (1964) . . . The scheme of the

Fourth Amendment becomes meaningful only

when it is assured that at some point the conduct

of those charged with enforcing the laws can be

subjected to the more detached, neutral scrutiny

of a judge who must evaluate the reasonableness of

a particular search or seizure in light of particular

circumstances. And in making that assessment

it is imperative that the facts be judged against

an objective standard: would the facts available

to the officer at the moment of the seizure or search

‘warrant a man of reasonable caution in the be-

BEINN Ma PS NNR SEROMA ON MAST LYNNE TEN REINS VS IUCR ITED YP WO CTS LY PUEDE OT GIR GRIN DI I ABS RRND A AR RD

sg SRE RT NS ar pa

17

lief’ that the action taken was appropriate? Cf.

Carroll v. United States, 267 U. S. 132, 45 S. Ct.

280, 69 L. Ed. 543 (1925) ; Beck v. Ohio, 379 U.S.

89, 96, 97, 85 S. Ct. 223, 13 L. Ed. 2d 142 (1964).

Anything less would invite intrusions upon con-

stitutionally guaranteed rights based on nothing

more substantial than inarticulate hunches, a re-

sult this Court has consistently refused to sanc-

tion. See, e.q., Beck v. Ohio, supra; Rios v. United

States, 364 U. S. 253, 80 S. Ct. 1431, 4 L. Ed. 2d

1688 (1960) ; Henry v. United States, 361 U. S. 98,

80 S. Ct. 168, 4 L. Ed. 2d 134 (1959).

There has been no mention in this case of the so-

called ‘‘moving vehicle doctrine’’ as first enunciated

in Carroll v. United States, 267 U. S. 182, 45 S. Ct. 280,

69 L. Ed. 543 (1925). However, anticipating that there

may be an attempt to bring this ‘‘doctrine”’ into play

in this matter, the petitioner wishes to call the Court’s

attention to the language of Mr. Justice Taft which

should resolve that possible issue. At page 155, he

states:

The measure of legality of such a seizure

is therefore, that the seizing officer shall have

reasonable or probable cause for believing that

the automobile which he stops and seizes has con-

traband liquor therein which is being illegally

transported

Such a rule fulfills the guaranty of the Fourth

Amendment. In Cases where the securing of a

warrant is reasonably practicable, it must be used,

and when properly supported by affidavit, and is-

18

sued after judicial approval, protects the seizing

officer against a suit for damages. In cases where

; seizure is impossible except without warrant, the

seizing officer acts unlawfully and at his peril un-

less he can show the court probable cause (Em-

phasis added).

It should be noted that the National Prohibition Act,

in effect in 1925, gave the agents specific authority to

search without warrants. However, the language of

Mr. Justice Taft is mandatory, where he stated that

a warrant must be used where the securing of it is

reasonably practicable. This mandate reflected the

cognizance of the Court that the Act provided for

searches without warrants. Still whenever practicable

the Court mandated the warrant requirement as a

protection against overzealous police action.

It would appear, in this case, that the police are

seeking to practice their case by hindsight and are jus-

tifying the arrest of petitioner by the findings of their

search after the arrest. The police had their, so-called,

information for more than four (4) hours, with a

stake out for three (3) hours, and yet there was ap-

parently never any thought about securing a search

warrant for the premises at 914 East Madison and for

the vehicle that was supposedly there for a period of

time. During the trial, Sgt. Davis testified that many

officers participated in this surveillance, including of-

ficers Graham, Canuel, Rawlings, Newcomb, Alexander,

Brown, Oyler, Roberts and himself (T.E., p. 78). In

all, at least nine (9) officers were involved, according

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19

to Davis. Yet not one of these officers, or any other

officers with the Louisville Division of Police was dis-

patched to seek, at least, a search warrant for the prem-

ise at 914 East Madison. Petitioner submits that the

reason for this failure was because they knew well

that they did not have sufficient information to pre-

sent to a judicial officer to justify the issuance of such

a warrant. The availability of such an officer is not

in issue since no attempt was made. The petitioner

further submits that this Court could accept, as ju-

dicial notice, the fact that the police have no qualms,

whatsoever, about calling upon a judge at all hours

of the day and night for the issuance of warrants when

they believe they have good cause and reasonable

grounds.

In this vein, the petitioner calls the court’s atten-

tion to United States v. James, 378 F. 2d 88 (6th Cir.,

1967), where the agents had a three and one-half (344)

month old arrest warrant but no search warrant for

the apartment. A large aggregation of enforcement

officers were present for the arrest and subsequent

search of the apartment. In reversing the conviction,

the Court held at page 90:

Since the agents had ample time to secure a

warrant for her arrest, they obviously had time

to secure a search warrant to search her residence,

but did not obtain one. The offense for which the

arrest warrant was issued took place on June 3,

1963. The arrest was not made until September

26, 1963, on a warrant obtained only one or two

<

20

days prior thereto. No explanation has been of-

fered as to why the agents waited for more than

three and one-half months after the offense had

been committed, to obtain the arrest warrant.

The Government contends, however, that the

only reliable information which it had was con-

cerning violations which took place at the apart-

ment on June 3, 1963, and July 9, 1963, and this

information was too remote in time from Septem-

ber 26, 1963, to obtain a search warrant. But the

fact is that the narcotics agents made no attempt

to secure a search warrant,

Taking into account all of the admitted facts

and circumstances of the case, including the large

aggregation of agents and police officers, it seems

to us that the agents and officers were interested

in something more than merely making an arrest.

It is clear that their primary purpose was to make

a general exploratory search of the apartment,

with the hope of finding narcotics. This search in

our judgment, was unreasonable and violated the

rights of appellant, James, under the Fourth

Amendment of the Constitution. United States

v. Harris, 321 F. 2d 739 (6th Cir., 1963).

The mere fact that the articles seized were con-

traband, does not make the evidence admissible

where the search was conducted in violation of

the Fourth Amendment. The owner of the con-

traband, however, was not entitled to have it re-

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

72 S. Ct. 93, 96 L. Ed. 59 (1951).

It follows that the District Court erred in de-

nying the motion to suppress. The judgment of

Tee PIDEEMET DENY eR POE IOET LIND PERS RE tek - — ‘ .

— LENSE ARE RETO T TE COO LL IT NEE NEES -

21

conviction is reversed and the cause is remanded

with instructions to grant the motion to suppress.

(Emphasis added.)

The petitioner urges that United States v. Harris,

321 F. 2d 739 (6th Cir., 1963), is also similar in theory

to the ease before this Court. In Harris, supra, the

District Judge initially overruled the defense motion

to suppress certain evidence. On petition for rehear-

ing the motion was sustained and the government ap-

pealed. In Harris, the agent had received information

from an informant about the defendant having pos-

session of a quantity of bulk narcotics. The agent made

no effort to get a search warrant and he and seven (7)

other agents went to the defendant’s apartment. At

page 741, the Court, in affirming the District Court’s

ruling, stated:

In sustaining the motion to suppress the evi-

dence the trial judge found from the evidence that

the search was not an incident of arrest, but that

it was the principal reason for the officers going to

the defendant’s apartment .

An arrest may not be used as a pretext or sub-

terfuge for making a search of premises without

a search warrant where ordinarily one would be

required under the Fourth Amendment. If, in

fact, the primary purpose of forcibly entering a

persons home is to search for evidence with which

to convict him of crime, the evidence so obtained

is not admissible in court. United States v. Lef-

kowitz, 285 U. S. 452, 467, 52 S. Ct. 420, 76 L. Ed.

877; Harris v. United States, 331 U. 8. 145, 153,

22

67 S. Ct. 1098, 91 L. Ed. 1399; Abel v. United

States, 362 U. S. 217, 225-26, 80 S. Ct. 683, 4 L. Ed.

2d 668; Jones v. United States, 357 U. S. 493, 500,

73 S. Ct. 1253, 2 L. Ed. 2d 1514; Worthington v.

United States, 166 F. 2d 557, 566, C.A. 6; Tag-

lavore v. United States, 291 F. 2d 262, 265, C.A. 9;

See also Go-Bart Importing Co. v. United States,

282 U. S. 344, 51S. Ct. 153, 75 L. Ed. 374; Hender-

son v. United States, 12 F. 2d 523; C.A. 4; Ker v.

California, 374 U. S. 23, 83 S. Ct. 1623, 1635, 10

L. Ed. 2d 726.

All of the agents of the Narcotics Bureau who

testified said that they went out to the defendant’s

apartment for the purpose of arresting him for

violation of the narcoties laws. The real purpose

of the agents must be determined from all of the

facts and circumstances surrounding the arrest of

the defendant and the search of his apartment.

The court is not bound to accept the purpose as

stated by the agents as controlling.

The record as a whole supports the conclusion

of the trial judge that the search was the principal

reason for the agents going to the apartment of

the defendant .. .

(p. 742) There was a strong urge on the agents

to make a case against this defendant but we can-

not permit the law to be circumvented by expe-

diency.

To give sanctions to a search such as was made

in this case, would virtually nullify the provision

of the Fourth Amendment that, ‘The right of the

people to be secure in their persons, houses . . .

against unreasonable searches and seizures, shall

not be violated . . .

7 BILE PE CLI CEI Fi IYER G ST NI LES LE LOI EOL NE OLE NITE LOS veal

23

We conclude that the District Judge was cor-

rect in finding that the search of the defendant’s

apartment was the primary purpose of the agents

in going to the apartment and making an arrest.

In arriving at this conclusion, we established no

new principle of the law. The question before the

District Judge was a factual one to be decided

solely on the particular facts of the case before

him. We are of the opinion that the facts sub-

stantiate the trial judge’s conclusion and we will

not disturb it. (Emphasis added).

The judgment of the District Court is affirmed.

In Ballard v. Commonwealth, Ky., 462 S. W. 2d 905

(1971), the Court extensively discussed the aspects of

probable cause justifying arrests. In point of fact,

the Court quoted extensively from this Court’s de-

cision in Chambers v. Maroney, 399 U. S. 42, 90 S. Ct.

1975, 26 L. Ed. 2d 419 (1970), which also delved deeply

into the issue of probable cause. In Chambers, supra,

the officers had descriptions of the individuals’ dress

and type of vehicle, including color to rely upon before

initiating an arrest and subsequent search and seizure.

Chambers, supra, offers the Commonwealth no sol-

ace for here the arresting officer had no knowledge of

what ‘‘contraband’’ he was looking for, let alone any

description of a vehicle or identification of a suspect.

Petitioner urges that it is questionable whether Sgt.

Davis had any such information. If he did, he must

have wanted to keep it to himself, which does not seem

reasonable. Unquestionably, if Sgt. Davis did have

the information he testified about, it is poor police

|

24

work, at best, to fail to give it to the other officers on

the surveillance detail.

It must be assumed that a telephone call was made

giving information about ‘‘stolen items’’ in a truck,

at the general location in question. Which truck? It

can be reasonably assumed that it was the truck in

the yard which the caller was talking about. Even so,

that information, without corroboration, is insufficient

to arbitrarily stop a vehicle, even a truck at 9 p.m. in

the evening. 9 p.m. is not a particularly suspicious

time to be driving through an alley in a residential

section. That time alone does not justify the stopping

of a motor vehicle for a ‘‘fishing expedition”’.

Scamahorne v. Commonwealth, Ky., 376 S. W. 2d

686 (1964), represents yet another case involving

probable cause. At page 687 the Court states:

. It has been held that if the facts are such

that an ordinary prudent man would have believed

the accused guilty and would have acted upon

that belief, a police officer’s act in making an ar-

rest without a warrant is justified . . . The

arresting officer in felony cases must act upon

facts within his own knowledge, or upon reliable

information communicated to him by a third per-

son. Mere belief or suspicion does not constitute

reasonable grounds. (Emphasis added).

The Court in Phillips v. Commonwealth, Ky., 473

S. W. 2d 135 (1971), at page 137 states:

: . We concede that the law of this Common-

wealth hold a search warrant necessary in order

;

RPS ONE TOE IS TLL IIE TE AE IMENT SS PEPE HO RS a a a ae ne

25

to search an automobile unless the officer has

probable cause to search based upon reliable in-

formation or observation . . . We further

concede that probable cause is the criterion nor-

mally followed in situations such as the one pres-

ently before us. We further concede that an ar-

rest cannot be a pretext for an otherwise illegal

search . . . (Emphasis added).

In this case, all that the officers had to base their

arrest of the petitioner upon was an uncorroborated

‘tip’? of unknown origin. They took no action to

verify this information other than to set up a ‘‘stake-

out’”’. After a three to four hour wait someone saw a

truck driving down an alley. As the Court said in

United States v. Davis, 459 F. 2d 458, 459 (9th Cir.,

1972). ‘*These observations and suspicions do not suf-

ficiently suggest that some criminal activity was afoot.”’

The trial court felt that the question of the legality

of the arrest, search and seizure was close and so

stated (T.E., p. 116). It is urged that the trial court

did, in fact, err in its ruling on petitioner’s Motion to

Suppress Evidence.

The Kentucky Court of Appeals utilized Terry v.

Ohio, 392 U. S. 1, 88 S. Ct. 1868 20 L. Ed. 2d 889,

(1968) to buttress its opinion in this case. Petitioner

urges that Terry, supra, in fact, favors the proposition

which he puts forward. In Terry, supra, it was the

acts of the defendants which aroused the officer’s in-

terest. It was, in fact, these same acts and the officer’s

extensive experience which caused this Court to affirm

the conviction of Terry. In Terry, supra, the defen-

UDP non: —2r mE

26

dants paced in front of the jewelry store window

roughly 24 times, conferred several times, and were

joined by yet a third person. At p. 23 the Court con-

cluded, ‘‘It would have been poor police work indeed

for an officer of 30 years experience in the detection

of thievery from stores in this same neighborhood to

have failed to investigate this behavior further.’’

Again, the arrests in Terry, supra, were based upon ob-

servations of suspicious behavior.

In the instant case, absent the anonymous phone

call, there was not an iota of suspicious, questionable

or even unusual behavior to arouse any officer’s sus-

picions.

The Kentucky Court also cited Bays v. Common-

wealth, Ky., 486 S. W. 2d 706 (1972); Shull v. Com-

monwealth, 475 S. W. 2d 469 (1971); and Phillips v.

Commonwealth, Ky., 473 S. W. 2d 135 (1971) in sup-

port of its Opinion. In each of these cases the arrest

was based upon facts which were suspicious, in and of

themselves, and quite distinguishable from this case.

In Bays, supra, there was suspicious and furtive

movements by the defendant(s), quite similar to the

Terry case, supra. In Shull, supra, two (2) men were

stopped in the immediate vicinity of the Sears Roe-

buck Store in the early morning hours, after the burg-

lar alarm went off. The officer testified that one man

started to run as the police car approached. Again,

very similar to the Terry case, supra. In Phillips,

supra, the arrest was also based upon suspicious cir-

cumstances and the acts of the defendant, plus the in-

TEES ILO REA SOT AE LE BANE P ARIE OEP SOT , .

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20

formation provided the police by a hitchhiker person-

ally at the police station.

The Kentucky Court cited the Peters case, con-

tained in the opinion Sibron v. New York, 392 U. 8S.

40, 88 S. Ct. 1889, 20 L. Ed. 2d 817 (1968), in further

support of its opinion. Here again, the defendant was

arrested, as this court paraphrased, because an off-

duty police officer observed the defendant conducting

himself suspiciously outside of an apartment the of-

ficer knew to be occupied by someone other than the

defendant.

Petitioner urges that Whiteley v. Warden, 401 U.S.

560, 91 S. Ct. 1031, 28 L. Ed. 2d 306 (1971), is par-

ticularly applicable to his case. The facts of that case

are very similar to the instant case. This Court held

that no probable cause existed for the arrest. In that

ease a Wyoming County Sheriff subscribed to a war-

rant against Whiteley on the basis of a ‘‘tip.’’ Of-

ficers in another locale arrested Whiteley in a car on

the basis of that warrant. This Court at p. 567-68

states:

, . The record is devoid of any information at

any stage of the proceeding from the time of the

robbery to the event of the arrest and search that

would support either the reliability of the inform-

ant or the informant’s conclusion that these men

were connected with the crime.

“ The arresting officer was not himself pos-

sessed of any factual data tending to corroborate

the informer’s tip that Daley and Whiteley com-

mitted the crime. Therefore, petitioner’s arrest

28

violated his constitutional rights under the Fourth

and Fourteenth Amendments ; the evidence secured

as an incident thereto should have been excluded

from his trial.

Petitioner considers the Whiteley case, supra, to be

virtually undistinguishable from his case. In his case

the officers were acting only on a ‘‘tip’’ and they did

absolutely nothing to corroborate the information.

Officer Roberts, the original arresting officer, obviously

had no information whatsoever about what ‘‘stolen

property”’ the police were looking for. Without some

corroboration the officers had no right to stop the

truck as it was moving down the alley. Nothing was

in “‘plain view”’ at 9:00 p.m. when the truck was mov-

ing down the alley. It was only after the officers came

abreast of the truck on foot that they saw tires. Even

at that point Roberts, in effect, saw nothing because

he had no knowledge of what he was looking for. Pe-

titioner urges that it is difficult to give Davis’ testi-

mony about the tires the benefit of the doubt because

of his obvious failure to communicate the ‘‘tire’’ in-

formation to the other officers. It seems inconceivable

that he would assign nine (9) men to a surveillance for

stolen property for more than three (3) hours, if he

really knew what the stolen property specifically was,

without telling the assigned officers what the property

was. Logis dictates that he would have been more de-

finitive about what the stolen property was if he had

really known. Police surveillances, perhaps, may be

based upon unknown quantities; arrests, however, can-

not stand upon what turns up after a search. An arrest

I AS PLPC I

Dette ae oak ec ck Lk Ins Rael Num ay han aks MOM er OTL

+— a

29

and search is good or bad when it commences. Cer-

tainly, a bad search, i.e., a search in violation of the

Fourth Amendment, cannot be made good by what it

discloses. Byars v. United States, 273 U. 8. 71 L. Ed.

520 (1927) 28, 29; 475 S. Ct. 248; Henry v. United

States, 361 U. 8S. 98, 80 S. Ct. 168, 4 L. Ed. 2d 134

(1959), 104; United States v. DiRe, 332 U.S. 581, 595;

68 S. Ct. 222; 92 L. Ed. 210 (1948). Neither suspicion

nor equivocal behavior alone justifies a search. Agnello

v. United States, 269 U.S. 20, 33, 46 S. Ct. 4, 70 L. Ed.

145 (1925) ; Jones v. United States, 357 U. S. 493, 497,

78S. Ct. 1253, 2 L. Ed. 2d 1514 (1958). Terry, supra,

condoned the frisk type search for weapons not a full

search—and that was based upon extremely suspicious

activities of a defendant.

Petitioner urges that if this decision is allowed to

stand, then the Court will open the door wide to pos-

sible abuses by overzealous law enforcement officers.

It will then be simple for an officer to testify that he

received an anonymous tip about an individual and

thereafter stopped him. In effect, this Court will be

taking the position that no corroboration is necessary

to stop a vehicle if an officer received a ‘“‘tip.’’ In

Wong Sun v. United States, 371 U.S. 471, 479, 83 8. Ct.

407, 9 L. Ed. 2d 441, 450, the Court held that the basis

for an arrest without a warrant cannot be any the

less stringent than the basis for an arrest with a war-

rant. Otherwise, it would obviously be more expedient

for an officer to make warrantless arrests.

Again petitioner concedes that ‘‘tips’’ should be in-

vestigated. Investigation is the key. Probable cause

30

cannot be established on ‘‘information and belief”’

alone. Evidential facts must be set forth. Marcus v.

Search Warrants, 367 U. 8. 717, 81 S. Ct. 1708, 6 L. Ed.

2d 1127 (1961).

CONCLUSION

The Kentucky Court of Appeals, by its Opinion of

June 29, 1973, in effect, has sanctioned the stopping

of vehicles for investigation purposes only. The peti-

tioner urges that such stops, without probable cause

to believe that a crime has been committed, or is in the

process of being committed, or unlawful and violative

of the Fourth Amendment of the Constitution of the

United States and Section 10 of the Constitution of the

Commonwealth of Kentucky. Moreover, the petitioner

submits that the decision of the Kentucky Court con-

travenes the established law of this Court as cited in

the Petition herein.

The question presented by this Petition is of such

importance to all the courts in the States, as well as

the federal courts, that this Court should accept juris-

diction and issue a Writ of Certiorari to review the

Opinion of the Court of Appeals of the Commonwealth

of Kentucky.

Respectfully submitted,

JOSEPH G. GLASS

425 South Fifth Street

Suite 201

Louisville, Kentucky 40202

Counsel for Petitioner-

Appellant