Petition for Writ of Certiorari — Toliver v. United States

F I

MICHAEL RODAK, JR..

In the Supreme Court of the United States

OCTOBER TERM, 1974

74-219 '

No.

HAROLD VINCENT TOLIVER,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT, AT CINCINNATI

DALE QUILLEN

308 Cavalier Building

95 White Bridge Road

Nashville, Tennessee 37205

Attorney for Petitioner

E. La Mawoanmatt, Ixc., 926 Cherry Street, Kansas City, Mo. 34106, 421-8030

In the Supreme Court of the United States

OCTOBER TERM, 1974

HAROLD VINCENT TOLIVER,

Petitioner,

Vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT, AT CINCINNATI

DALE QUILLEN

308 Cavalier Building

95 White Bridge Road

Nashville, Tennessee 37205

Attorney for Petitioner

——

E. L. Menvenxatt, Inc., 926 Cherry Street, Kansas City, Mo. 64106, 421-3030

ee

INDEX

Citation to Opinions Below ........... 2

eI serv onicicintanieciinianeesnerka 2

Questions Presented ; 2

Reasons for Granting the Writ of Certiorari .................... 3

Statement of the Case and Facts 3

Argument 5

Conclusion 9

A Te ii eceisitadcnetiin 10

Appendix—

CRITE EE El gE Sa Rs ee Ee ONO Al

Order (Sixth Circuit Court of Appeals) a A7

TABLE OF CASES

y

Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d

723 (1964) 6

Cady v. Dombrowski, 93 S.Ct. 2523, 413 U.S. 433, 41

U.S. L.W. 4995 (1973) 8

Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69

L.Ed. 543 (1925) 5, 6,8

Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26

L.Ed.2d 419 (1970) 7

Coolidge v. New Hampshire, 403 U.S. 443, 91 S Ct. 2022,

29 L.Ed.2d 564 (1971) 8

Spinelli v. United States, 394 U.S. 410, 89 S.Ct. 584, 21

L.Ed.2d 637 (1969) 6

United States v. Burch, 471 F.2d 1314 (6th Cir. 1973) .... 6,7

are Reine, ee ere ee ee ae ER ie ee eee

PR AEG LLL IIE INO AME DI can GE

United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29

L.Ed.2d 723 (1971)

6

United States v. McCreary, 455 F.2d 647 (6th Cir. 1972) 9

United States v. Prince, 301 F.2d 358 (6th Cir. 1962) ... 9

CONSTITUTIONAL PROVISIONS AND STATUTES

RELIED UPON

United States Constitution, Amendment IV .................... 5,7

18 United States Code 331 3

18 United States Code 485 3

In the Supreme Court of te United States

OCTOBER TERM, 1974

HAROLD VINCENT TOLIVER,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT, AT CINCINNATI

TO THE HONORABLE, THE CHIEF JUSTICE, AND THE

ASSOCIATE JUSTICES OF THE SUPREME COURT

OF THE UNITED STATES:

PETITIONER PRAYS THAT A WRIT OF CERTIO-

RARI ISSUE TO REVIEW THE JUDGMENT OF THE

UNITED STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT ENTERED IN THIS CASE ON JULY

5, 1974.

START RE TR ER BOM ARTERY MDM RT Cg Segara a Na ao ae in On ak

CITATION TO OPINIONS BELOW

Order of the Court of Appeals unreported filed July

5, 1974 (App. A7).

JURISDICTION

The Court of Appeals entered judgment on July 5,

1974 with time for filing this petition extending to Septem-

ber 3, 1974.

The jurisdiction of this Court is invoked under 28

U.S.C. §1254(1).

QUESTIONS PRESENTED

1. Whether the warrantless rch of a vehicle for

false, forged and counterfeit go'd/coins was an unreason-

able search under the Fourth endment, since the of-

ficers relied solely upon unco rated information from

an undisclosed source where the informant had never had

any personal dealings with thp petitioner, and no under-

lying facts as to how or whexe the informant came by

his information.

2. Whether agents should obtai

even if they have probable cause, if the in

which they rely is received two days prior to the arrest

and search, during which time the agents have mapped

out the exact route which they foresaw the subject taking,

and had ample opportunity to secure a warrant from any

magistrate.

search warrant

PAINE hE RY sar te -_

PALINGES AE EAT L POSER ARTA a MEA a6 Fer Aer cH rns enema rset: . _

WES Awe Je Py the ~ ae ue =, Pam anatee oO

- : gmoney bah ORE Be

REASONS FOR GRANTING THE WRIT

OF CERTIORARI

I. Petitioner respectfully contends the Writ should

be granted, as it presents issues important to the policies

and processes of search and seizure not yet passed upon

by the Court, but which will continue to be raised in

other cases, concerning the sufficiency of probable cause

when the search is not incident to the arrest, the officers

relied solely upon an uncorroborated informer’s tip, and

did not secure a search warrant, although they had ample

time to do so.

II. The pet:tioner has not received needed and proper

relief by the Courts below.

STATEMENT OF THE CASE AND FACTS

Petitioner, Harold Vincent Toliver, was charged in

a two-count indictment with possessing false, forged and

counterfeit gold coins with intent to defraud unknown

persons, and with fraudulently possessing altered United

States coins in violation of Title 18, U.S.C. §485 and Title

18, US.C. $331. Petitioner filed a motion to suppress

testimony which was overruled by the Trial Judge on

ee (App. A1). On December 5, 1973 the Court

found Toliver guilty as charged in the indictment and

sentenced him to prison for a period of two and one-half

years on each of the two counts of the indictment, the

sentences to run concurrentiy with each other.

At the trial, evidence presented against Toliver con-

sisted primarily of the following facts: On February 8,

ol ate ON AMIE Abr hy te

one sciar ants ihapiala dle thea IK Cals org

dis Mebu et?

%» ee ba a e

4

1973, two United States Secret Service agents began sur-

veillance of petitioner’s home at approximately 5:30 a.m.

One of the agents had previously received information

from a confidential source to the effect that Toliver was

going to deliver counterfeit gold coins from his home in

Manchester, Tennessee to Guthrie, Kentucky. This de-

livery was to take place on February 8, at approximately

9:30 am. Petitioner was observed placing two cardboard

boxes and a handcase in his car. At 8:00 am. Toliver

drove to Nashville. The agents proceeded in separate cars,

keeping petitioner under surveillance as he continued

northward through Goodlettsville and Springfield, Tennes-

see. When Toliver stopped at a roadside trash barrel

near the town of Sadlersville, Tennessee in Robertson

County, one of the agents approached him and placed

him under arrest. There was no arrest warrant or search

warrant. Toliver got out of his car and one of the agents

asked his permission to search the vehicle. Although

Toliver asked that the car not be searched, the agents

paid no attention to his objection, searched the car and

seized counterfeit and altered coins. The Secret Service

agents and Montgomery County deputies then took Toliver

and his car to the Montgomery County Sheriff’s Office

in Clarksville, Tennessee. From Clarksville the petitioner

was taken to Nashville and before a magistrate.

After the petitioner was convicted on each of the

two counts, appeal was perfected to the United States

Court of Appeals for the Sixth Circuit. A short order

affirming the judgment of the District Court did not discuss

the issues raised at any length (App. A7).

Petitioner is now properly before this Court by the

Petition.

ARGUMENT

I.

The Warrantless Search of the Vehicle for False,

Forged and Counterfeit Gold Coins Was an Unreason-

able Search under the Fourth Amendment Since the

Officers Relied Solely upon Uncorroborated Informa-

tion from an Undisclosed Source Where the Informant

Had Never Had Any Personal Dealings with the Peti-

tioner, and No Underlying Facts As to How, When, or

Where the Informant Came by His Information.

Petitioner submits that the search of the vehicle was

unreasonable under the Fourth Amendment since it was

undertaken without a search warrant, without probable

cause to believe that contraband would be found, and

was not undertaken incident te a lawful arrest. The arrest-

ing agents had neither a search warrant, nor an arrest

warrant. Furthermore, since the arrest of petitioner and

the search of the car were both based on a belief that

the automobile contained counterfeit gold coins, the search

may not stand as incident to the arrest. Most importantly,

petitioner contends that the search was invalid because

it was not based on probable cause.

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

280, 69 L.Ed. 543 (1925), the Court held that contraband

goods concealed and illegally transported in an automobile

may be searched for without a warrant. However, such

a warrantless search may not take place when there is

no probable cause to believe that the vehicle contains

contraband. The Court maintained that probable cause

exists where the facts and circumstances within the arrest-

ing officers’ knowledge and of which they had reasonably

trustworthy information are sufficient in themselves to

warrant a man of reasonable caution in the belief that

an offense is being committed.

Petitioner contends that the agents did not have suffi-

cient information to meet the test of probable cause set

forth in Carroll. They relied on information which was

received from an undisclosed source. The informant did

not have direct personal knowledge that the petitioner

was in possession of the counterfeit coins; he had never

personally had any dealings with the petitioner in counter-

feit or altered coins. The information he gave the agents

about the transaction was a mere repetition of what he

had heard from some other source. Furthermore, the infor-

mant’s reliability was questionable because there had been

no previous arrests as a result of information furnished

by him. Petitioner submits that the informant’s tip

did not constitute “reasonably trustworthy informa-

tion” as required by Carroll. The factors involved in

the instant case regarding the informer’s trustworthiness

have been considered important in other cases where the

sufficiency of an affidavit in support of a warrant has

been questioned, and the affiant relied on information

from an undisclosed source. United States v. Harris, 403

U.S. 573, 91 S.Ct. 2075, 29 LEd2d 723 (1971); Spinelli

v. United States, 394 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d

637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509,

12 LEd.2d 723 (1964). In United States v. Burch, 471

F.2d 1314 (6th Cir. 1973), a warrantless search was up-

held only after it was shown that the informant had pre-

viously had personal illegal dealings with the defendant,

and that the arresting agents had received similar informa-

tion from other informants. These factors are not present

in the instant case.

7

The corroboration requirement is also not fulfilled.

In Burch, the Court delcared that “where the initial im-

petus for an arrest is an unnamed informer’s tip, the

arresting officers must corroborate by independent investi-

gation the information that the arrestees committed a fel-

ony or were in the process of committing a felony.” Id.

471 F.2d at 1317. The agents saw the petitioner carry

two cardboard boxes and z black handcase to the vehicle.

Petitioner contends that this did not satisfy the corrobora-

tion requirement since the agents had no way of knowing

what was in these containers and the informant had not

described the type of container in which the coins were

to be transported. Petitioner was also apprehended within

the State of Tennessee; therefore, there could have been

no corroboration of the report that the transaction was

to occur in Guthrie, Kentucky. Petitioner respectfully

contends that the arresting agents relied on information

which was uncorroborated and which was not reasonably

trustworthy and that the search, therefore, violated peti-

tioner’s rights under the Fourth Amendment.

Il.

The Agents Should Obtain a Search Warrant Even

If They Have Probable Cause, If the Information upon

Which They Rely Is Received Two Days Prior to the

Arrest and Search, During Which Time the Agents

Mapped Out the Exact Route Which They Foresaw the

Subject Taking and Had Ample Opportunity to Secure

a Warrant from Any Magistrate.

Even if the agents had had probable cause to stop

and search the automobile, they should have obtained a

search warrant nevertheless. In Chambers v. Maroney,

399 U.S. 42, 50, 90 S.Ct. 1975, 1980, 26 L.Ed.2d 419 (1970)

the Court declared that “neither Carroll, nor other cases

in this Court require or suggest that in every conceivable

circumstance the search of an auto even with probable

cause may be made without the extra protection for privacy

which a warrant affords.”

In Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct.

2022, 29 L.Ed.2d 564 (1971), this Court declared that, “The

word ‘automobile’ is not a talisman in whose presence

the Fourth Amendment fades away and disappears.” Al-

though it is true that the mobility of an automobile some-

times calls for a speedy arrest in order that the vehicle

will not elude the officers or escape the jurisdiction, not

all searches and seizures of automobiles are per se reason-

able given probable cause. The Coolidge Court con-

tinued: “The rule that ‘searches conducted outside the

judicial process, without prior approval by judge or mmagis-

trate, are per se unreasonable under the Fourth Amend-

ment—subject only to a few specifically established and

well-delineated exceptions’ is not so frail that its continu-

ing vitality depends on the fate of a supposed doctrine of

warrantless arrest.” And in Cady v. Dombrowski, 93 S.Ct.

2523, 413 U.S. 433, 41 U.S. L.W. 4995 (1973), the Court

recognized that the law in the area of automobile searches

and seizures is by no means firmly established when it

declared that “. . . the decisions of this Court dealing

with the constitutionality of warrantless searches, espe-

cially when those searches are of vehicles, suggest that

this branch of the law is something less than a seamless

web.” Cady v. Dombrowski, supra at p. 4997.

One of the important factors considered in allowing

the warrantless search in Carroll was the lack of fore-

warning and the possibility that the opportunity for arrest

might be lost during the time it would take to seek a

magistrate.’ In the instant case, the arresting agents had

9

two days forewarning and ample time to secure a war-

rant from a mar istrate.

Courts have recognized that the time factor is a strong

consideration in allowing the search of an automobile with-

out a warrant. United States v. Prince, 301 F.2d 358

(1962). In United States v. McCreary, 455 F.2d 647 (1972)

the Court noted that the warrantless search of the vehicle

came only twenty minutes after the tip had been received.

The arresting agent in the instant case, however, re-

ceived the information fully two days prior to the arrest

and search. The officers had enough time to anticipate

and map out the exact route which they foresaw the peti-

tioner would take, posting agents along the way. Peti-

tioner respectfully contends that there was no valid rea-

son whatsoever for the failure of the agents to secure

a search warrant from any magistrate along this route

since they had ample forewarning and made extensive

preparations. é

CONCLUSION

For the foregoing reasons, it is respectfully submitted

that the Petition for Writ of Certiorari should be granted.

Respectfully submitied,

DALE QUILLEN

Attorney for Petitioner

co aed

10

CERTIFICATE OF SERVICE

I hereby certify that a true copy of the foregoing

Petition for Writ of Certiorari has been mailed to the

Solicitor General of the United States, Department of Jus-

tice, Washington, D.C. 20530, this 30th day of August, 1974.

DALE QUILLEN

Attorney for Petitioner

FO AR ase A ging ator ore

Al

APPENDIX

MOTION TO SUPPRESS TESTIMONY

(Filed March 12, 1973)

Comes the defendant, Harold V. Tolliver, and makes

known to the Court that his automobile was searched

by agents of the United States Secret Service in Robertson

County, Tennessee on or about February 8, 1973. That

said agents were acting without a warrant of search or

other lawful authority tc make a search of said automobile.

The defendant would further show unto the Court

that said officers seized his 1973 Buick Electra automobile

and other personal property which is more particularly

described in an inventory which is attached hereto.

WHEREFORE, the defendant prays:

1. That he be granted a hearing upon this motion.

2. That upon said hearing, an order be entered sup-

pressing the testimony of the agents of the United States

Secret Service who made the search of the defendant’s

automobile and any other officers acting in concert with

said Secret Service agents, insofar as said testimony may

pertain to 190 gold coins alleged to be false or forged

and 57 coins alleged to have been altered.

3. Further, that any property seized from the defen-

dant which is not contraband be returned to him.

4. For any other and further relief to which defen-

dant may be entitled generally.

A2

File No: J-CO-1-22,878

ITEMS SEIZED FROM HAROLD V. TOLIVER’S

RESIDENCE AND ANTIQUE SHOP

One Beretta hand gun, serial no. 885622, with six rounds

in clip.

One Leather pouch containing one bottle of 21 Cft. Gold

coins ($214) and two $1.00 Cft. gold coins.

One .410 gauge shot gun, sawed-off, IRS No. 4966.

One double barrel .12 gauge shot gun, Bone Hill Brand, No

serial number.

One .22 cal. Marlin Rifle, octagon barrel, Serial No. 442398

One percussion type antique rifle, .40 cal.

One envelope of business cards and receipts taken from

brief case found in old stone fort collectors den.

$2.00 “Inflated States of America” reproduction note.

46 miniature reproductions of $1.00 silver certificates.

One canvass bag containing 99 rolls of nickels and one

loose roll of nickels of various dates.

One canvass bag containing 53 rolls of pennies and 261

pennies loose, of various dates.

90 Individually—mounted pennies of various dates.

7 Individually—mounted nickels of various dates.

4 individually—mounted dimes of various dates.

One california gold token.

27 pennies in paper envelopes.

73 Reproductions of $20 Federal Reserve Notes.

79 Reproductions of $5.00 Federal Reserve Notes.

One 1804 Reproduction of Silver Dollar.

One % of a silver dollar, Mounted.

One black ring box.

23 Counterfeit gold coins of various denominations and

dates.

J-CO-1-22,878

ITEMS FOUND IN AUTOMOBILE OF TOLIVER

1 Box containing 12 pocket knives inscribed “Coca

Cola”

8 “Happy Bird” Novelty Toys

3 Small boxes containing minature soft drinks

1 Box containing Case “Bowie Knife & Sheath”

1 Box of small mirrors

1 Rocky Ford Cigar Box with various campaign type

buttons & key chains

1 Carton Winston Cigarettes minus one pack

43 Small paper bags containing different Chewing

Tobacco Metal Tags

32 Plastic & Paper coin containers

50 small sheets with printed tobacco seals approx. 24

seals to a sheet

(Approx)

2 Plastic sheets with 20 slots for samples of metal

chewing tobacco tags

8 Plastic sheets with 20 slots for displaying metal

tobacco tags

1 Manilla envelope containing various size plastic

containers for coins

1 Red box containing approx 100 tobacco metal

tags enclosed individually and approx. 20 loose

tags in the box

1 Small box containing various Presidential cam-

paign buttons

12 Oversize Apollo Campaign-type buttons

1 Box containing Sans Sousi Perfume 1% F1. Oz.

1 Box containing Mystice Perfume 1% F1. Oz.

—_

A4

Bottle Shibui Perfume 1 FI. Oz.

Empty Watch Case

Empty ring boxes

Black pocket magnifying glass

Plastic envelopes

Coffee County, Tennessee Constable Badge issued

August 1, 1968

Glass paper weights

Boxes playing cards

Box containing approximately 75 small glass can-

dle holders

Box Glass Insulators

Brass Tokens with inscriptions

Alum, Token with inscription

Pornographic paperback books

Pornographic Magazines

Wooden Wall Placques

Coin Magazine

Small pornographic cartoon-type booklets

Steno Notebook with handwritten notes

Small Box empty coin holders

Pkg. of approx. 200 plastic coin protectors

Ring Sizer

300W Movie Flood Lights

“Mystery of Black” After Shave

Box of Four 1.5 Volt Batteries

Large box containing 8 small boxes of pocket

knives and 2 large boxes of pocket knives :

Fishing Tackle Box containing various assortment

of pocket knives

Leather container containing asst. of pocket knives

A5

1 Pink suitcase containing an assortment of pens,

pocket knives, etc.

Pint Imported Canadian Club Whiskey

White paper bag containing arrowheads

1 Box containing 87 pornographic books (paper-

backs)

76 Reels of pornographic film

1 8mm GAF Movie Projector

1 GAF Super 8 Zoom Movie Camera

1 GAF Twin Lamp Movie Light

1 Roll Color Movie Film 8 mm

1 Carrying case for camera

1 Tape Player and two speakers

23 Tapes for Tape player in black box

2 Boxes containing 2 bottles each of ink—Stamp pad

and rubber stamps

1 Box containing knife handles and rods

1 Box containing 6 metal serving trays

1 Boxcontaining 18 mason jars

4 Plastic bottles

2 Pairs of eyeglasses

1 Large Box containing the following:

1 Small box containing approx 500 small mir-

rors

1 Small box of FOBS

5 Metal Desk paper weights

7 Pearl Handled Pocket Knives

Approx. 20 Calendar Pictures

2 Knife books

1 Antique Book

5 USN Knives in sheaths

Dag . .

a NI ISIE TEL AUNT TIRE OW NTE PAE R TRE INE RETAIN EIR RE BERE MIN PO NET THAI PRE RENTER PRR, PA BR NR

- A6

1 Partial box of staples

Various mags

2 Rulers

2 Metal stamp plates

5 Plastic boxes with 2 knives each

1 Cotton bank bag “Citizens & Southern Na-

tional Bank, Atlanta, Ga.

Several Sheets of blank address labels

Partial roll of scotch tape

110 1% Dollars with various dates

1

1

1

5

1

3

Kennedy Half Dollar

One Ounce of Silver Eagle

Set of Canadian Coins (6 coins)

$1 Silver Certificates

$1 Bleached (Illegible)

Sets of Lincoln Memorial Cent Series

190 Counterfeit coins of various denominations and

57

31

dates

Genuine but altered coins of various denomina-

tions and dates

Rings (3 of these rings are in custody cf Metro

Police Dept.)

Al

No. 74-1244

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

vs

HAROLD VINCENT TOLIVER,

Defendant-Appellant.

ORDER

(Filed July 5, 1974)

Before PHILLIPS, Chief Judge, WEICK and ENGEL,

Circuit Judges.

Based on information received from a reliable in-

former, corroborated by their own surveillance, Secret

Service Agents arrested Toliver, searched his automobile,

and seized counterfeit and altered United States coins. He

was indicted on a two-count indictment which charged him

with possessing false, forged, and counterfeit gold coins,

with intent to defraud unknown persons, and fraudulently

possessing altered United States coins, in violation of Title

18 U.S.C. §§ 485 and 331.

The District Court denied Toliver’s motion to suppress

the evidence seized.

We are of the opinion that there was substantial evi-

dence which proved that the Secret Service Agents had

probable cause to arrest Toliver, search his automobile, and

seize the coins. United States v. McCreary, 455 F.2d 647

(6th Cir. 1972). The judgment of conviction is affirmed.

Entered by Order of the Court.

/s/ John P. Hehman

Clerk