# Petition for a Writ of Certiorari — DeBerry v. Kentucky > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1350%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for a Writ of Certiorari - **Published:** January 1, 1974 - **Citation:** 415 U.S. 918 ## Text 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 | 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. - - -_ « « 5.. on 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 ooe + 6 «es @ ore .* *“- 4 +o = o?r?@e-6¢ © “2e + 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 | | | 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- | | ! 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 eRe rg PNM ES AR I oa “s ee ee a KPA se eee es ee ee @ 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 , 3 7 woe IT ES SI SIN Oe ETE IL IIT as ae ys Sa ee ee ee 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 ee e-e@ a+ce = . iad @ere oe - 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 FADO LL LD BL POL LIE EM - — FEI YE SET OAS OIE LELAND, pipe l ¥ ST pe reenmErge -% or ) 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 , . . oiiai heed mS STEM Spa et 207E OOTY . — ee ? So SN a ramen ncn ate es Na at 3 le Pree otal 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1350%3A1. Public record. Not legal advice.