# Petition for Writ of Certiorari — Toliver v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1874%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1974 - **Citation:** 419 U.S. 1056 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1874%3A1. Public record. Not legal advice.