Reply Brief — DeBerry v. Kentucky

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1974

No. 73-904

CASWELL DEBERRY_~ .- - . - Petitioner

versus

COMMONWEALTH OF KENTUCKY .-__ Respondent

On Petition for a Writ of Certiorari to the Kentucky

Court of Appeals

REPLY BRIEF TO RESPONDENT'S

BRIEF IN OPPOSITION

JOSEPH G. GLASS

425 South Fifth Street

Suite 201

Louisville, Kentucky 40202

Counsel for Petitioner

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

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Kentucky, in its brief in opposition at page 3, that it is

only considering that one truck was involved in this

matter. There were, in fact, two (2) trucks involved

in this case.

One of the trucks was either an old green or white

panel truck, parked well up into the yard of 900 East

Madison Street, Louisville. One Officer, Sgt. Davis,

testified that this particular truck was white (Tran-

seript of Evidence, page 19, hereinafter referred to as

T.E.). Officer Roberts testified that the truck in the

yard was green (T.E., p. 25).

However, the truck in which the petitioner was rid-

ing at the time of his arrest was a rental van; appar-

ently with markings indicating ‘‘Ryders”’ as the rental

agency (T.E., p. 12).

The respondent, at p. 3 of its brief in opposition,

leaves the impression that the surveillance on the truck

in which the petitioner was arrested lasted more than

two and one-half (2%) hours. However, Officer

Roberts, in his testimony in Louisville Police Court

on November 24, 1971, testified that the moving truck

was only at the location (900 Block East Madison)

about 20 minutes (T.E., pp. 25-27). He also testified

at the suppression hearing, that he did not recall seeing

the moving truck come to the alley. However, he ad-

mitted that his present recollection was faulty and that

he ‘‘cleared up’’ some of the facts of the case by con-

versations with the people involved (T.E., p. 26).

Moreover, Roberts testified that he rode through the

alley, with his partner, trying to determine which

house. He said ‘“‘we spotted it.’’ The singular ‘“‘it”’

3

could only mean the truck in the yard which reaffirms

his earlier Police Court testimony (T.E., p. 6).

The fact that there were two trucks involved is

erucial to the consideration of this case, petitioner

believes, because of the ‘‘information”’ allegedly con-

veyed to the desk man at the Detective Bureau, Louis-

ville Division of Police. Sgt. Davis, at the pre-trial

hearing, testified about the Bureau’s Desk Man receiv-

ing a 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).

The ‘‘information”’ is about one truck. An entirely

different situation is created by the facts of this case,

because there are two trucks involved. If, as respond-

ent argues in his brief in opposition at page 5, the

police do ‘‘have the right to stop or in a technical sense

seize an individual for investigatory purposes,’’ how

far does this right extend? Or more aptly stated, under

the facts of this case, how many trucks may they stop

before they have exceeded this ‘‘right’’?

The respondent has cited Adams v. Williams, 407

U. S. 143, 32 L. Ed. 2d 612, 92 S. Ct. 1921 (1972), in

support of its contention that the police have the right

to stop or seize an individual for investigatory pur-

poses. The petitioner submits that Adams, supra, is

limited to its precise facts. In Adams, supra, the officer

received information about Williams from a person

known to him. This Court concluded that the officer

had acted justifiably because the informant had pro-

vided reliable information in the past and that ‘‘The

information carried enough indicia of reliability to

+

justify the officer’s forcible stop of Williams,’’ Adams,

supra, at page 147. These facts are quite different

from the matter herein because here, there was no

reliable information, nor any good corroboration of

the sketchy information provided by the anonymous

caller.

Brinegar v. United States, 338 U. 8. 160, 93 L. Ed.

1879, 69 S. Ct. 1302 (1949), also cited in respondent’s

brief in opposition, should offer respondent no comfort

either, because of the facts of that particular case.

In Brinegar, supra, the defendant was well known

to the government agents because of his reputation for

hauling liquor and because the government agent had

arrested the defendant on similar charges just a few

months before, Brinegar, supra, p. 170.

In its Brinegar decision, supra, at pp. 175-6, this

Court reaffirmed its position in Carroll v. United

States, infra, wherein it was held that:

. . . Probable cause exists where ‘‘the facts and

circumstances within their (the officers’) knowl-

edge and of which they had reasonable trustworthy

information (are) sufficient in themselves to war-

rant a man of reasonable caution in the belief that’’

an offense has been or is being committed. Carroll

v. United States, 267 U. S. 132, 162, 45 S. Ct. 280,

288, 69 L. Ed. 543, 39 A. L. R. 790.

Here again, petitioner argues that no such trust-

worthy or reliable information existed within any of

the officers’ knowledge, that is, either Sgt. Davis or

Officer Roberts. An arrest is not justified by what the

subsequent search discloses. Johnson v. United States,

333 U. S. 10, 68 S. Ct. 367, 92 L. Ed. 436 (1948).

5

The respondent also cited Terry v. Ohio, 392 U. 8.1,

20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968) ; Sibron v. New

York, 392 U. S. 40, 20 L. Ed. 2d 917, 88 S. Ct. 1889

(1968) ; Chambers v. Maroney, 399 U. S. 42, 26 L. Ed.

2d 419, 90 S. Ct. 1975 (1970) and Whiteley v. Warden,

401 U. S. 560, 28 L. Ed. 2d 306, 91 S. Ct. 1031 (1971).

Since petitioner discussed these cases in some detail in

his original Petition for Writ of Certiorari he will not

be redundant by treating them again.

CONCLUSION

The petitioner realizes that the fact that there were

two trucks involved in this matter was brought forth

in his original Petition in both the Statement of the

Case section and in the Reasons for Granting the Writ

section. However, even though the respondent kindly

accepted petitioner’s Statement of the Case it still only

considered the one truck in the Argument section of

its Brief in Opposition. Consequently, the petitioner

felt compelled to readdress himself to this point because

he feels these facts to be particularly impotrant to the

consideration of his Petition for Writ of Certiorari to

the Kentucky Court of Appeals.

Respectfully submitted,

JosEPH G. GLass

425 South Fifth Street

Suite 201

Louisville, Kentucky 40202

Counsel for Petitioner