Petition for Writ of Certiorari — Torrence v. Nebraska

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Table of Contents t

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Co Peete 2

Constitutional and Statutory Provisions Involved ___. 3 :

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PINE atinicieiautnnabacadicieecctu seeks 13 E

pS TERS RR ee eR eee, eRe 23 F

or ETE ee 24 4

State v. Torrence Opinion ___-........... | 24 5

Motion to Suppress Evidence ____.__..._________ 28 3

WR WINN eee cents ee a Sa 31

Table of Cases, Statutes, and Other Authorities :

Boyd v. United States, 116 U. S. 616, 630 (1886) ____ 14

Brown v. Mississippi, 297 U. S. 278 (1936) _________. 17 :

Bruton v. United States, 391 U. S. 123 (1968) ______ 21 s

Coleman v. Reilly, 8 Wash App. 684, 508 P. 2d 1035 :

NN eekiel cure eoeue eid Cre eile | 16 ;

DeLuna v. United States, 308 F. 2d 140 (C. A. 5, 1962) 21 te

Frank v. Maryland, 359 U. S. 360, 376-382 (1959) ____ 14 é

Jones v. United States, 362 U. S. 257 (1960) ________ 14 F

Holthus v. State, 138 Neb. 200, 292 N. W. 603 ______ 17 f

Ker v. California, 374 U.S. 23... 12, 15 i

Kohler v. Ford Mctor Co., 187 Neb. 428, 191 N. W. 2d :

Ge MD echiciccmscaanak scien eee ees 21 ke

Launock v. Brown, 2 B. & Ald. 592, 106 Eng. Rep. 482 é

PE ictnnitiet dicated 14 |

Malinski v. New York, 324 U. S. 401 (1945) ______ 19, 22 f

Malloy v. Hogan, 378 U.S. 1 ----_---_-________ 12, 17

Mapp v. Ohio, 367 U. S. 643 (1961) ____._..___.__ 16 é

Marshall v. United States, 360 U. S. 10 (1959) ____12, 18 :

ia res 7 = . we eee

ii

Page

Miller v. United States, 357 U. S. 301, 313 (1958) _--. 15

Miranda v. Arizona, 348 U. S. 436 __-___--_-- a: Se

ag EE 8 SO Se ee en 12

Rochin v. California, 342 U. S. 165 _---._--__--__-_-- 13

Roviaro v. United States, 353 U. S. 53 _-----._.-_--- 12

Semayne’s Case, 5 Co. Rep. 9la, 91b, 77 Eng. Rep. 194

(5 SESS EASE NEI sine OSE ene ae ee 14

Stagemeyer v. State, 137 Neb. 882 -_____-_-------__- 12

State v. Fleming, 182 Neb. 249, 154 N. W. 2d (1967) -_ 20

Dtete v. Tieowsy, 167 Nek. 1 ...................- 12

State v. Montgomery, 182 Neb. 737, 157 N. W. 2d 196. 21

State v. Riley, 182 Neb. 300, 154 N. W. 2d 741 (1967)__ 22

State v. Shawan, 423 P. 2d 39 (N. M.) -------------- 12, 18

Se Oe eee ee 20

State v. Torrence, 192 Neb. 213 (1974) -______-___- 1

State v. Wickett, 230 Iowa 1182, 300 N. W. 268, 271

I oa ss acpabaeao enemas 22

Vale v. Louisiana, 399 U. S. 30 (1970) --_-----_---_- 15

Williams v. State, 283 S. W. 2d 239 (Tex.) _-______ 12, 18

United States Constitution, Amendment IV ________ 3, 12

United States Constitution, Amendment XIV __3, 12, 13, 16

Constitution of Nebraska, Art. I, Sec. 6 __-___________ 13

Section 29-411, R. R. S. 1943 (Neb.) (1972 Supp.) 2, 4, 5, 15

I a 1

ABA Standards Relating to Pre-Trial Release part V 21

ABA Standards Relating To Free Trial and Free

Pa ALTIN, CN AEE ee,

IN THE

Supreme Court of the United States

October Term, 1974

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ES! LORE NARA “OO eo ants ear tae ome

No.

BILLY R. TORRENCE,

Petitioner,

Vs.

STATE OF NEBRASKA,

Respondent.

PETITION FOR WRIT OF CERTIORARI FROM THE

SUPREME COURT OF NEBRASKA

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BRIEF OF PETITIONER, BILLY R. TORRENCE

OPINION BELOW

The opinion of the Nebraska Supreme Court, State ».

Torrence, 192 Ne’. 213 (1974), is included in the appendix

hereto, at page 24.

JURISDICTION

The judgment of the Surreme Court of Nebraska was

entered on July 5, 1974, affirming petitioner’s conviction

and sentence to 15 years imprisonment. A timely motion

for rehearing was denied by the Nebraska Supreme Court

on September 17, 1974, and this petition for certiorari is,

filed within ninety days of that date. This Court has

jurisdiction under 28 U. S. C. 1257(3).

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QUESTIONS PRESENTED

1. Whether an unannounced search of a residence

where petitioner and others were located, under a search

warrant issued and purportedly authorized by Nebraska’s

“no-knock” warrant statute, Sec. 29-411, R. R. S. 1943

(Neb.) (1972 Supp.), is an unreasonable search when in

fact there were no exigent circumstances when the officers

executing the warrant made their unannounced entry.

2. Whether a denial of due process of law under the

Fourteenth Amendment to the United States Constitution

occurs when:

(a) A prejudicial statement obtained from petitioner

by questioning immediately or shortly after he was beaten

on the head with a nightstick by police, which beating

occurred after he was under arrest and handcuffed and

was totally without justification, and without the peti-

tioner having been advised on any rights he had as an

arrested person, is admitted into evidence against him.

(b) Motions for change of venue and to have the jurors

ouestioned individually outside the presence of other jurors

are denied even though virtually the entire panel of pro-

spective jurors, and all twelve trial jurors, had been ex-

posed to inflammatory pretrial publicity.

(c) The prosecution pursues a course of conduct, per-

mitted by the court, which is calculated to unfairly prej-

udice the petitioner, including the following, in addition

to matters previously discussed:

(1) Deliberate elicitation of highly prejudicial and ob-

viously inadmissable hearsay testimony implicating peti-

tioner in commission of another offense, with the trial

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judge refusing to declare a mistrial but simply admonish-

ing the jury to disregard such testimony;

(2) Deliberate contriving to deny release or. bail prior

to trial;

(3) Trial with a co-defendant whose defense involved

implication of petitioner;

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(4) Introduction of evidence of police investigations

and opinions regarding narcotics traffic;

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(5) Introduction of critical fingerprint identification p

evidence in direct conflict with established rules of evi- _

dence and for the apparent purpose of informing the jury t

of a prior arrest. :

CONSTITUTICNAL AND STATUTORY PROVISIONS é

INVOLVED 3

1. United States Constitution, Amendment IV. i

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

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

able searches and seizures, shall not be violated, and b

no Warrants shall issue, but upon probable cause, .

supported by Oath or affirmation, and particularly i

describing the place to be searched, and the persons

or things to be seized.

2. United States Constitution, Amendment XIV, Sec. 1.

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Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof, :

are citizens of the United States and of the State

wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or im-

munities of citizens of the United States; nor shall

any State deprive any person of life, liberty, or prop-

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erty, without due process of law; nor deny to any

person within its jurisdiction the equal protection of

the laws.

3. Section 29-411, R. R. S. 1943 (Neb.) (1972 Supp.).

29-411. Warrants; execution; powers of officer; di-

rection for executing. In executing a warrant for the

arrest of a person charged with an offense, or a search

warrant, or when authorized to make an arrest for a

felony without a warrant, the officer may break open

_ any outer or inner door or window of a dwelling

house or other building, if, after notice of his office

and purvose, he is refused admittance; or without

giving notice of his authority and purpose, if the

judge or magistrate issuing a search warrant has in-

serted a direction therein that the officer executing

it shall not be required to give such notice, but the

political subdivision from which such officer is elected

or appointed shall be liable for all damages to the

property in gaining admission. The judge or magis-

trate may so direct only upon proof under oath, to

his satisfaction that the property sought may be

easily or quickly destroyed or disposed of, or that

danger to the life or limb of the officer or another

may result, if such notice be given; but this section

is not intended to authorize any officer executing a

search warrant to enter any house or building not

described in the warrant.

STATEMENT OF THE CASE

The petitioner stands convicted of a charge of pos-

session of heroin with intent to sell or deliver. He was

arrested on April 6, 1973, while at the rented home of

one Elton Love, who was present along with his wife

and two other persons. On that day, some nineteen

Omaha, Nebraska, police officers raided the Love resi-

cence by battering in the doors and windows without

giving any notice of their authority or purpose. In an

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ensuing search, the pclice seized a quantity of heroin

anc paraphernalia, which was introduced into evidence

at the trial over petitioner’s objection and after his mo-

tion to suppress evidence was denied. Petitioner’s Motion

to Suppress is set forth in the appendix hereto at page 28,

and is found at page 29 of the Transcript from the Dis-

trict Court of Douglas County (T29); the Court’s ruling

is at T29 and in the court reporter’s transcript at page 43

(R43).

The unannounced raid and search was purportedly au-

thorized by a search warrant issued the same day by

Omaha Municipal Judge Walter Cropper pursuant to Sec.

29-411, R. R. S. 1943 (Neb) (1972 Supp.), which authorizes

execution of a search warrant without notice of authority

and purpose and by breaking open any outer or inner

door or window, if the judge so directs, the only limita-

tions being that such a warrant shall issue only upon a

finding that the property sought may be easily destroyed

or disposed of, or that danger to the life or limb of the

officer or another may result if such notice is given. A

copy of the search warrant is included in the appendix

hereto at page 31. The basis for authorizing the war-

rant on a “no knock” basis was a conclusion that the

property sought could be easily destroyed because of the

presence of toilet facilities in the Love residence (although

the supporting affidavit makes no mention of such facil-

ities),

In executing the warrant, nineteen police officers were

stationed at the front and back doors of the house. There

were no signs of elusive action, such as retreating foot-

steps, from within the house to indicate a possible escape.

The search warrant made no reference to possible danger

to the life or limb of an officer or another.

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Almost immediately after the “no knock” raid began,

the petitioner was arrested by three police officers. He

offered no resistance and cooperated fully. While the

three officers were handcuffing him behind his back, a

fourth officer hit him un the head with his nightstick.

Shortly thereafter, and without any warnings concerning

his rights as an «rested person having been given to

petitioner, Offic:.c Parker addressed him with the accusa-

tion: “Billy, I have been trying to get you for three

years and I think I got you.” Petitioner allegedly re-

sponded: “You got me good, Mr. Parker.” Parker and

petitioner had known each other for three years, during

which time Parker was openly trying to make a case

against petitioner. The accusation and response were in-

troduced into evidence over objection (R370). The exist-

ence of the oral statement was revealed at the hearing

cn the motion to suppress evidence, at which time counsel

for petitioner reserved any objeviion until trial.

Upon appeal, the Nebraska Supreme Court held that the

statement was admissible, indicating that it was “equivocal”

and “spontaneous and voluntary in nature and not the

result of interrogation” and that the failure to advise

petitioner of his rights was not error. The Court simply

failed to deal with the question of the effect of the police

violence in obtaining the statement.

Pretrial publicity in Cmaha, Nebraska, concerning the

petitioner, depicting him as a bic-time trafficker in nar-

cotics, was cousiders:.z. aiwenty-nine of the thirty-three

jurors callea fe. selection of the jury had read or heard

publicity ix advance. All twelve of the trial jurors had

been exposed to advance publicity.

Prior to trial, petitioner on May 29, 1973, moved for a

change of venue, as follows: “Defendant moves: I. That

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he be granted a change of venue for the reason that he

cannot receive a fair trial in Douglas County, Nebraska,

because of substantial adverse publicity in all of the local

news media inclusive of newspapers, television and radio

since his arrest on April 6, 1973,” (T35). The Court de-

ferred ruling until after voir dire examination of the

jurors; although the result of such examination was as

indicated above, the motion was denied at that time (T37).

As the process of impaneling the jury began, petitioner

joined counsel for a co-defendant in a motion to the court

“to order that the voir dire of the prospective jurors pro-

ceed singly as to each juror and each juror be questioned

and outside of the presence of the rest of the J ury Panel

which is now in the court room, for the reason that due

to the nature of the case, the severity of the charge, the

recent publicity attendant upon this type of prosecution,

that I feel on behalf of my client we could not attain a

fair and impartial Jury if the questioning were had in a

group and in the presence of all of the other potential

jurors.” The motion was summarily overruled (R51).

The Nebraska Supreme Court handled this issue by ob-

serving that all the jurors said that they would not be

influenced by what they had read or heard and stating

that “it is sufficient if a juror can lay aside his impression

or opinion and render a verdict based on the evidence

presented in Court” and that “It is not required that

jurors be totally ignorant of the facts and issues involved.”

During the trial, a police officer testified upon cross-

examination by co-defendant that during surveillance in-

volving the petitioner they were observing radio silence.

The prosecuting attorney then asked the officer why the

radio was silent. He responded, over objection, that:

“Well, I received information from a party that worked

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on the North Side that Mr. Torrence had a Police monitor

and did receive our radio calls.” The Court granted peti-

tioner’s motion to strike and stated “The Jury will please

disregard that stateinent.” Petitioner’s motion for a mis-

trial was denied (R500-503).

Petitioner was held in custody after his arrest with his

hond fixed at $25,000. While he was trying to raise bail,

~ previously dismissed charge was resurrected and addi-

tiona} bail totalling $26,000 was set. He arranged tc pro-

vide bonds for all offenses, and was met by 2 prosecution

move to double his bail on the instant charge and to

require separate sureties for the different offenses. No

new evidence or information justifying an increase was —

presented. The Court in fact raised the bond to $35,0%u

and further ruled that the surety could not require a

premium or security in excess of 10% of the total of

the bonds. Upon questionirg, the bondsman hed stated

that he had obtained security in the form of pledges of

real estate well in excess of that amount.

Petitioner was unable to obtain his release under the

raised bail and the conditions imposed by the Court; he

unsuccessfully prosecuted an original action of the State

Supreme Court to obtain his release on bail. He moved

Jor a continuance of the trial in order to pursue his pur-

pose to obtain his release (T34), which was denied (T36).

Prior to trial, the prosecution moved to consolidate peti-

tioner’s trial with that of other defendants, which was

granted by the Court. In fact, one other person stood

trial with him. During the course of the trial and in

argument, co-defendant’s counsel repeatedly took a course

cf action calculated to help the prosecution convict peti-

tioner. During jury selection, the prosecutor in effect

edmitted that petitioner was his prime target. A number

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of objections by petitioner to testimony of police sur-

veillance of petitioner and other prejudicial matter brought

out by co-defendant were overruled (R336, 339, 347);

petitioner’s motion for a mistrial based upon co-defend-

ant’s final argument was overruled (R756).

A SIM OND Seige —

During the trial, the prosecution was permitted, over

objection of defendant, to adduce extensive evidence of

police surveillance of the petitioner which had no pro-

bative value other than to establish that the police re-

garded him as a prime suspect, and to bring out opinion

evidence from a police officer with no demenstrated ex-

pertise regarding narcotics dealing.

One significant piece of evidence consisted of an opin-

ion by a police lab expert that a fingerprint found on a

plate of glass seized in the house, upon which a consider-

able quantity of heroin and paraphernalia was found, was

the petitioner’s. Petitioner was fingerprinted by police

twice between the time of his arrest and the trial. How-

ever, the prosecution did not use either of those sets of

prints to use as standard against which to compare the

latent print, but used prints resulting from a 1958 arrest.

No foundation was laid to establish these as belonging

to petitioner, except by testimony of an out of court com-

parison with post-arrest prints in this case. Objection

was made to the officer’s opinion and to a comparison

exhibit containing a photograph of the 1958 print on the

basis of lack of foundation, both of which objections were

overruled by the Court (R711).

The trial of the petiticner was held on May 29 - June 6,

1973, and resulted in a guilty verdict. His co-defendant

was acquitted. Subsequently, petitioner filed a timely

motion for new triai, in pertinent part, as follows (T63):

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Comes now the defendant herein and respectfully moves

the Court for a new trial for the following reasons and

each of them:

1. The Court erred in failing to sustain defendant’s

motion to suppress the evidence;

2. The Court erred in failing to grant defendant’s mo-

tion fus a directed verdict at the close of the State’s evi-

dence;

3. The Court erred in failing to grant defendant’s mo-

tion for a directed verdict at the close of the defendant’s

evidence;

4. The Court erred in submitting the causé to the jury;

5. The Court erred in failing to grant defendant’s mo-

tion for mistrial during the course of the trial;

9. That the verdict of the jury is contrary to the law;

10. That the verdict of the jury is contrary to the

evidence;

11. That the verdict returned by the jury in favor of

the State, fails to do substantial justice and an injustice

to the defendant ...

Upon appeal to the Nebraska Supreme Court, the fol-

lowing Assignments of Error were set out (Appellant’s

Brief, pp. 2-4):

1. The Court erred in ordering this case consolidated

tor trial with the case of State v. Lydia Hatcher, Doc. 87,

No. 127.

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2. The Court erred in denying defendent’s motion for

change of venue.

3. The Court erred in overruling defendant’s motion

to suppress evidence obtained under a no-knock search

warrant based on information from an undisclosesd in-

formant.

5. The Court erred in denying defendant’s motion for

a continuance.

6. The Court erred in admitting prejudicial and hear-

say evidence of activities of defendant not related to the

offense charged.

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7. The Court erred in permitting a police officer to

testify as an expert witness to hearsay opinions con-

cerning narcotics trafficking.

8. The Court erred in admitting evidence of an oral

statement made by defendant while under arrest.

11. The Court erred in denying defendant’s motion

for a mistrial based on deliberate elicitation by the State

of highly prejudicial and obviously inadmissible evidevice.

12. The Court erred in admitting fingerprint indenti-

fication evidence without proper foundation.

13. The Court erred in denying defendant’s motions

for judgment of acquittal because of insufficient evidence.

14. The Court erred in overruling defendant’s motion

for a new trial.

That petitioner was raising Federal Constitutional ques- :

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tions is set out in the foliowins Propositions of Law

(Appellant’s Brief, pp. 4-8): ‘

Il.

A change of venue should be granted where voir dire

examination of jurors reflects that a large majority had

read or heard recent and inflammatory reports concern-

ing the defendant and the alleged offense. ~

Marshall v. United States, 360 U. S. 10 (1959).

Williams v. State, 283 S. W. 2d 239 (‘Tex.).

State v. Shawan, 423 P. 2d 39 (N. M.).,

ABA Standards Relating to Free Trial and Free

Press.

Il. ;

Evidence obtained pursuant to a no-knock search war-

rant based upon information obtained from an undisclosed

informant not demonstrated to be reliable should he sup-

pressed.

Ker v. California, 374 U. S. 23.

Roviaro v. United States, 353 U. S. 53.

State v. Holloway, 187 Neb. 1.

U. S. Constitution, Amendments 4 and 14. \

VII.

An alleged admission by a defendant made when he is

under arrest and has been beaten with a night stick by

police cannot be admitted into evidence against him in

the absence of and affirmative showing that he has been

advised of his rights or that the statement was clearly

vo'untary.

Miranda v. Arizona, 384 U. S. 436.

Orozco v. Texas, 394 U. S. 1.

Mal'oy v. Hogan, 378 U. S. 1.

Stagemeyer v. State, 137 Neb. 882.

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XII.

The trial of the defendant was conducted in such a man-

ner as to constitute a denial of due process of law and

which resulted in his being convicted upon insufficient

evidence. .

U. S. Constitution, 14th Amendment.

Constitution of Nebraska, Art. I, Sec. 6.

Rochin v. California, 342 U. S. 165.

The Constitutional questions were fully argued in Appel-

lant’s Brief, Reply Brief, ard Brief on Motion for Re-

hearing. That the trial errors referred to in Cuestion 2

herein were made the basis of a Federal due process

argument is set forth in Appellant’s original brief, as

follows:

... (T)he State undertook and was allowed to prove

defendant’s guilt by a coerced admission, testimony

of police opinion about him, unsubstantiated hearsay

about narcotics trading, and improper expert testi-

mony. This evidence was presented to a jury which

had been exposed to repeated recent publicity about

the defendant and his supposed major role in nar-

cotics distribution. It was done while he was wrong-

ly confined in jail. The County Attorney deliberately

brought out inflammatory inadmissible evidence to

help persuade the jury. The defendant was tried

with another defendant who helped convict him.

The totality of circumstances demonstrates an ab-

sence of fairness, amounting to a denial of due pro-

cess of law under Article I, Section 6, Constitution

of Nebraska, and the 14th Amendment to the United

States Constitution; see Rochin v. California, 342 U.

S. 165.

ARGUMENT

I.

The decision of the Nebraska Supreme Court, holding

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that evidence obtained pursuant to an unannounced

entry of a dwelling is admissable at trial sclely be-

cause the issuing judge feels the property being sought

is of a type that can easily be destroyed, is clearly

erroneous; this Court has never allowed such a search

and seizure to stand, and has not yet clearly deiincated

the circumstances, if any, under which police may be

permitted to dispense with the general constitutional

requirement of announced authority and purpose under

so-called “no knock” statutes.

At the time of the entry in questior., the petitioner was

in a friend’s home. Under Jones v. United States, 362 U.

S. 257 (1960), he may rely on the 4th Ainendment’s pro-

hibition against unreasonable searches and seizures

It was firmly established long before the adoption of

the Bill of Rights that the fundamental liberty of the

individual includes protection against unannounced police

entry. See, e.g., Semayne’s Case, 5 Co. Rep. 91a, 91b, 77

Eng. Rep. 194 (1603); Frank v. Maryland, 359 U. S. 360,

376-382 (1959) (dissenting opinion); Fraenkel, Concern-

ing Searches and Seizures, 34 Harv. L. Rev. 361 (1921).

The principle was confirmed not long after the 4th Amend-

snent became part of our Constitution. See, Launock v.

Brewn, 2 B. & Ald. 592, 106 Eng. Rep. 482 (1819). In

Boyd v. United States, 116 U. S. 616, 630 (1886), this Court

said: “The protections of individual freedom carried into

the Fourth Amendment undoubtedly included this firmly

established requirement of an announcement by police

officers of purpose and authority before breaking into an

individual’s home.”

In this case, the requirement of announcement before

entry was ignored. The search and seizure was there-

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fore unreasonable unless the “fear of destroying evidence”

is an exception to the long established rule. Such ex-

ceptions are not to be lightly inferred, as recognized by

Justice Brennan in his opinion in Ker v. California, 374

U. S. 23, 53 (1963): “Rigid restrictions upon unannounced

entries are essential if the Fourth Amendment’s prohibi-

tion against invasion of the security and privacy of the

home is to have any meaning.” See also Miller v. United

States, 357 U. S. 301, 313 (1958), where the Court stated:

“The requirement of prior notice of authority and pur-

pose before forcing entry into a home is deeply rooted

in our heritage and should not be given grudging appli-

cation.”

In the case at bar, the judge issuing the warrant exer-

cised the authority purportedly given him by Sec. 29-411,

R. R. S. 1943 (Neb.) (1972 Supp.) to authorize unan-

nounced entry solely because the investigation involved

narcotics. The mere involvement of narcotics has been

held by this Court to not justify an exception to the Con-

stitutional requirement for a warrant prior to a search;

Vale v. Louisiana, 399 U. S. 30 (1970). The question,

heretofor unanswered by this Court, of whether such in-

volvement justifies an exception to the requirement of

announcement of entry is squarely presented. As the

Statement above points out, there are no facts to show

that the officers had any reason, such as observed elusive

action, as was present in Ker v. California, supra, to dis-

pense with notice. In view of the proliferation of “no

knock” statutes, and the long standing and firmly estab-

lished principle that Constitutional guarantees against un¢

reasonable searches and seizures are to be liberally con-

strued in favor of the individual to safeguard the right

of privacy, it is submitted that certiorari should be granted

and this issue thoroughly briefed and explored. In view

APA

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of the long history of Constitutional decisions recognizing

the announcement requirement, including the recent State

court decision in Coleman v. Reilly, 8 Wash. App. 684,

508 P. 2d 1035 (1974), it is submitted that the search

herein will, upon examination, be found to have been

unreasonable. Under Mapp v. Ohio, 367 U. S. 643 (1961),

the evidence therefore should have been excluded.

Il.

The Nebraska Supreme Court ruling that petitioner’s oral

admission, obtained immediately after his arrest and

beating by police, was admissable, was clearly erron-

eous and constitutes a denial of due process of law

under the 14th Amendment.

The treatment by the Nebraska Court of this issue is

shocking. The entire discussion by that Court, after

acknowledging the salient facts, consists of the following

paragraph:

“In Miranda v. Arizona, 384 U. S. 436... the

United States Supreme Court held specifically that

volunteered statements of any kind are admissable

without prior explanation the defendant’s rights. The

defendant’s reply was equivocal, but in any event it

was spontaneous and voluntary in nature and not the

result of interrogation. The objection was properly

overruled.”

In this case, the State made absolutely no showing of

the circumstances surrounding the statement except that

it was obtained shortly after arrest and the clubbing on

the head, and without any advice having been given the

petitioner. The Nebraska Court violated its own estab-

lished rule (which to petitioner’s knowledge is a universal

rule) that the prosecution must affirmatively establish

all that occurred immediately prior to and at the time

MS, FRAGA NCNM NHAC AAACN IRM, als DN A UMP CURE ERI TL

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of the making of the confession, which proof must show

it to have been freely and voluntarily made and exclude

the hypothesis of improper inducements or threats;

Holthus v. State, 138 Neb. 200, 292 N. W. 603. It totally

ignored cases such as Brown v. Mississippi, 297 U. S. 278

(1936), and Malloy v. Hogan, 378 U. S. 1,7, where the

Court stated that a statement “must not be extracted

by any sort of threats or violence, nor obtained by any

direct or implied promises, however slight, nor by the

exertion cf any improper influence.”

The Nebraska Court also wildly misapplied Miranda

v. Arizona, supra. By what stretch of the imagination

can a challenging accusation such as that made here be

passed off as not being interrogation? The characteriza-

tion of the statement as “equivocal” is simply wrong; in

any event, Miranda clearly applies to any statement that

night be incriminating; 384 U. S. at 467. The character-

ization of the statement as “spontaneous and voluntary”

apparently means that henceforth Nebraska police will

be authorized to obtain confessions by striking suspects

on the head, because of a “misunderstanding”, and then

hoping they will respond to attempts at conversation, so

long as formal questions are avoided. The Nebraska Court

has apparently ruled that Miranda constituted a retreat

from the prohibition against the use of violence in ob-

taining incriminating statements. It is contrary to every

decision of this Court dealing with police-obtained ad-

missions and must be repudiated. An important Federal

question is involved.

Ill.

Trial to a jury exposed to extensive prejudicial pretrial

publicity constituted a denial of due process of law.

I TT TR

ER ee te toe

FVLP a Ee

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PRT IL

—18—

a

The publicity to which 29 of the 33 prespective jurors,

and all 12 trial jurors were exposed was a great deal

more than mere news of petitioner’s arrest. It depicted

him as a prime narcotics dealer. Included were a front

page story in the only major newspaper in Omaha on

April 6; an article on the front page of the second section

of the same paper on April 7 which stressed petitioner’s

alleged involvement and included a picture of an expensive

automobile purportedly owned by him; an article on April

12, concerning allegations that petitioner owed $1,000,000

in taxes; a feature entitled “The Torrence Story” on April

15; an April 26 story on his unsuccessful bond hearing;

and a May 23 article concerning his Supreme Court case

concerning bail. Television and radio also covered the

story, and just before trial, a feature front-page story on

Officer Swanson, the narcotics squad chief and the State’s

star witness, appeared in the Omaha Sun.

In the circumstances, some corrective action beyond

voir dire examination was called for. Petitioner specif-

» ically moved for a change of venue to meet the problem;

he also requested a continuance (although for a different

_) reason), which would have alleviated the problem to some

extent. He also moved to have the voir dire so conducted

» that all of the jurors would not be fully informed of his

* media notoriety. All were denied.

In Marshall v. United States, 360 U. S. 10 (1959), seven

jurors were subjected to prejudicial news reports con-

cerning the defendant. Although the trial judge elicited

assurances that the publicity would not affect them, this

Court held that a fair trial could not be had. See also

Williams v. State, 162 Tex. Crim. 202, 283 S. W. 2d 239

(1955), where five of the trial jurors had seen prejudicial

reports, and State vw. Shawan,'77 N. M. 354, 423 P. 2d 39

»

|

FPL IRS |

—

(1967), where four jurors were so affected. In dceter-

mining due process standards in this area, the Court’s

attention is invited to ABA Standards Relating to Free

Trial and Free Press, Sec. 3.2 and 3.4, recommending a

change of venue or continuance where a reasonable like-

lihocd of not getting a fair trial exists, or, as a minimum,

that individual voir dire examination be undertaken in

such cases,

IV.

In addition to the introduction of illegally seized evidence,

admission of a coerced confession, and trial to a jury

unfairly exposed to prejudicial publicity, due process

standards were violated in the trial of this case because

of (a) the prosecution’s deliberate elicitation before the

jury of inadmissable hearsay evidence of purported mis-

conduct by the Petitioner which involved alleged com-

mission of another offense; (b) deliberate and unwar-

ranted action by the prosecution and the court to deny

Petitioner release on bail prior to and during trial; (c)

trial with a co-defendant whose defense involved impli-

cation of the Petitioner; (d) use of inadmissable evidence

of police investigation of Petitioner and opinions concern-

ing narcotics traffic; and (e) improper introduction of

critical fingerprint identification evidence. |

In Malinski v. New York, 324 U. S. 401 (1945), this

court defined the role of appellate courts in determining

whether due process of law has been afforded to a de-

fendant as being “an exercise of judgment upon the whole

course of the proceedings in order to ascertain whether

they offend those canons of decency and fairness which

express the notions of justice of English-speaking peoples

even towards those charged with the most heinous of-

fenses.” In addition to the matters specifically raised

ss swe w hehe wen ¥ rey PAP LE) ZI DIY Mme Me 8 Pe me Tek peg

DPE LOD LEELA a PP Po eae

_—

and argued above, the errors referred to in paragraph

(2) (c) of the Questions Presented in this Petition merit

consideration in order to determine whether the “whole

course of the proceeding” offended standards of fairness.

Each of the points raised will be briefly discussed.

a. As noted above, during the course of the trial, the

prosecuting attorney deliberately asked a question which

brought out obviously inadmissible hearsay testimony

that the Petitioner was alleged to have monitored the

police radio. Such monitoring 1s, of course, in violation

of Federal Law. The testimony was highly prejudicial.

The prosecutor must necessarily have known that the

hearsay answer would be stricken and the jury instructed

to disregard. Knowing that, he deliberately tried to in-

ilame the jury by asking the question anyway. Standard

5.6(b) of the A. B. A. Standards Relating to the Prosecu-

tion Function specifically prohibits such action. In Ne-

braska, it has long been held that such action is wrong;

see State v. Fleming, 182 Neb. 249, 154 N. W. 2d (1967),

where it was held that a simple admonition to disregard

G:d not eliminate prejudice and that the prosecution’s

inentioning of another offense was grounds for reversal.

In State v. Smith, 187 Neb. 152, the Nebraska Supreme

Court held that a defendant is entitled to be tried by a

prosecutor who is fair and impartial to the accused. In

allowing the jury to decide this case after having been

exposed to this prosecutorial misconduct, an established

standard of fairness in Nebraska was violated.

b. The denial of bail was arbitrary and wrongful.

There was no justification for increasing bail, and no

rational reason for not allowing Petitioner’s bondsman to

require security in order to post bond. In view of the

Petitioner’s attempts in the Supreme Court of Nebraska

to obtain his release prior to trial, it was wrong to deny

2 Wh BL RE I HIS Ain ces

=

his requested continuance. Under enlightened standards

for obtaining pre-trial release, there would seem to be ;

no question but that Petitioner would have obtained

release; see A. B. A. Standards Relating to Pre-Trial

Release, part V. The District Court apparently felt com-

pelled to apply certain rules against the bonding com-

pany; in the process of doing so, it deprived the Petitioner

of his right to release. :

i

|

i

i

c. As noted, the Petitioner was compelled io go to trial

with a co-defendant, who for eminently practical re2.ons

sought to shift the blame to Petitioner. Under estab-

lished Nebraska law, a defendant so situated is entitled

to a new trial even though no specific objection to con-

solidation has been made; State v. Montgomery, 182 Neb. _

137, 157 N. W. 2d 196. A similar Federal ruling is found

in DeLuna v. United States, 308 F. 2d 140 (C. A. 5, 1962).

The situation is comparable to that faced by this court

in Bruton v. United States, 391 U. S. 123 (1968). It is

submitted that where trial with a co-defendant interferes _

with a person’s opportunity to simply defend on the merits F

of the case against him, a fair trial under established con- _

stitutional standards cannot be had. :

d. The State offered and was permitted to adduce ex-

tensive evidence concerning surveillance of the Petitioner,

which informed the jury that he was the subject of con-

centrated police attention, but had no direct bearing on

the issues in the case. Also, a police officer whose sole

qualifications were that he had been to a narcotics in-

vestigation school and had a few years experience as an

officer was permitted to give opinion evidence, appazently

as an expert, over objection, regarding practices in nar-

cotics distribution in Omaha, Nebraska. Established Ne-

braska law regarding expert witnesses, see Kohler v. Foi?

Motor Co., 187 Neb. 428, 191 N. W. 2d 601 (1971), pro-

L212 SR SP DR EE RL EN ED SSR EN ON ONE RS gD

—

hibits the use of such expert testimony. Petitioner was

thus deprived of the benefit of established rules of law

in the triai.

e. There was no plausible excuse for permitting the

expert to use the 1958 fingerprints allegedly taken from

Petitioner as a standard. Fingerprints directly attrib-

utable to the Petitioner were claimed to be availabie. The

use of 1958 prints, which were not attributed to defend-

ant under any accepted evidentiary standard, was in

flagrant violation of the best evidence and hearsay rules;

see State v. Wickett, 230 Iowa 1182, 300 N. W. 268, 271

(1941), where the Court stated that a handwriting stand-

ard must be directly established as the genuine writing

of the subject and not by expert testimony of an out of

court comparison. If the recent fingerprints of Peti-

tioner were trustworthy and accurate, the only plausible

excuse for using the 1958 prints was to prejudice the

jury by showing an earlier police contact, an obviously

improper procedure; see State v. Riley, 182 Neb. 300, 154

N. W. 2d 741 (1967). The only other plausible reason

for using the 1958 print was that the recent print was

not reliable. This evidence was crucial in that it pur-

portedly placed the Petiticner at a table where narcotics

were found. All of the other evidence concerning activ-

ities at the raided house was that he was seated some

distance from that table.

The Nebraska Supreme Court simply failed to consider

the entire course of conduct in the trial of Petitioner.

lf it had done so, it seems abundantly clear that under

Malinski v. New York, supra, review would have revealed

a denial of due process of law. In combination with the

other matters raised earlier, it is abundantly clear that

this Petitioner was convicted in a proceeding which of-

fended those canons of decency and of fairness which

express the notions of justice under which criminal de-

fendants are entitled to be tried.

CONCLUSION

The Petitioner was convicted upon evidence seized in

én unannounced search conducted under conditions never

approved by this Court. A coerced incriminating state-

ment was used against the Petitioner, and in dealing with

it, the Nebraska Supreme Court ignored prior decisions

of this Court and misconstrued this Court’s decisiun in

Miranda v. Arizona, supra. In a trial before a jury preju-

diced by publicity, the prosecution was allowed to deviate

from normal trial practices and procedures and inflame

the jury against the Petitioner, in conflict with standards

of due process of law. Important issues are raised; a

Writ of Certiorari should be granted.

Respectfully submitted,

BILLY R. TORRENCE,

Petitioner

By:

Patrick W. HEALY

and

DvuANE L. NELSoN

His Attorneys

ERS fa net OO mL EN i eae

cli.

APPENDIX

STATE oF NEBRASKA, APPELLEE, Vv. BILLy R. TORRENCE,

APPELLANT.

— N. W. 2d —

Filed July 5, 1974. No. 39200.

1. Searches and Seizures: Affidavits: Criminal Law. An affi-

davit for a search warrant which is based in part upon in-

termation supplied by an unidentified informant is sufficient

if the affidavit contains a factual basis upon which the reli-

ability of the informant can be determined.

2. Searches and Seizures: Affidavits: Criminal Law: Trial. Where

the identity of an informant is not relevant or helpful to the

defense against the crime charged, the trial court is not re-

quired to order the identity of the informant be disclosed.

3. Confessions: Evidence: Criminal Law: Trial. Volunteered state-

ments of any kind are admissible without a prior explanation

of the defendant’s rights.

4. Jury: Evidence: Criminal Law: Trial. It is not required that

jurors be totally ignorant of the facts and issues involved.

It is sufficient if a juror can lay aside his impression or

opinion and render a verdict based on the evidence presented

in court.

Appeal from the District Court for Douglas County:

JoHN C. BurKE, Judge. Affirmed.

Duane L. Nelson, for appellant.

Clarence A. H. Meyer, Attorney General, and Betsy G.

Berger, for appeilee.

Heard before Wuitr, C. J., Spencer, BostLaucn,

McCown, Newon, CLINTON, and Bropkey, JJ.

BoSLAUGH, J.

The defendant appeals from a conviction for possession

of heroin with intent to distribute.

The defendant was arrested on April 6, 1973, as a result

of a raid by the police at a residence at 3611 Seward

Street in Omaha, Nebraska. When the police entered the

house the defendant was in the living room crouching

down near a davenport. There were other persons in the

house but no other person was in the living room except

the defendant. A large quantity of heroin was found on

a table in the dining area which was a part of the living

room. The defendant’s jacket was on a chair beside the

table. It was apparent a packaging operation had been

in progress when the raid took place. Small squares of

aluminum foil each containing a spoonful of diluted herion

were on the table and being folded. The defendant’s fin-

gerprint was found on a sheet of glass which was being

used in the packaging operation. The evidence was

clearly sufficient to sustain the finding of the jury.

The defendant’s principal assignments of error relate to

the vailidity of the search warrant which was the basis

for the raid. A motion to suppress the evidence obtained

as a result of the warrant was overruled before the trial

commenced.

The affidavit upon which the warrant was issued al-

leged the defendant had been under investigation by the

narcotics unit of the Omaha police division for the past

6 months and that the police had information heroin was

being diluted and packaged for distribution by the de-

fendant at 3611 Seward Street in Omaha, Nebraska. The

affidavit stated the information alleged therein had been

obtained by police surveillance of the defendant, particu-

larly within the preceding 24 hours; from a druggist who

had sold large quantities of Dormin (a dilutant) to the

defendant on April 4, 1973; from an agent of the Bureau

of Narcotics and Dangerous Drugs; and from an unidenti-

fied informant. The information supplied by the uniden-

tified informant related to the general method of opera-

ALOT gt Ni LOUIE Ae

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tion of the defendant in the “cutting” or dilution of her-

oin as a part of the packaging and distribution process.

The specific information relating to time and place came

from the other sources.

The affidavit alleged the informant had a “personal

relationship” with the defendant. The affidavit stated

the informant had given information in a previcts case

which had resulted in an arrest for possession of heroin i

and cocaine on January 14, 1973. This was a factual :

basis upon which the informant’s reliability could be ~

determined. The affidavit was sufficient to support the

issuance of the warrant. See, United States v. Harris,

403 U. S. 573, 91 S. Ct. 2075, 29 L. Ed 2d 723; State v. Rice,

188 Neb. 728, 199 N. W. 2d 480.

The defendant’s pretrial motion to disclose the name of

the unidentified informant was overruled. Where the

identity of an informer is relevant and helpful to the

defense, disclosure may be compelled. Because of the

nature of the evidence used by the State, the identity of

the informer was not relevant to the defense against the

charge of possession of heroin with intent to distribute.

The trial court was not required to crder a disclosure of

the identity of the informant. See, McCray v. Illinois,

386 U. S. 300, 87 S. Ct. 1056, 18 L. Ed. 2d 62; United States

v. Harris, supra.

After the defendant had been arrested and handcuffed,

but before he had been removed from the house at 3611

Seward Street, he was struck on the head by an officer

using a nightstick. The striking was not necessary to

subdue or control the defendant who had been cooper-

ative, and apparently was the result of a misunderstand-

ing by the officer involved. Shortly thereafter Officer

—27—

Parker said to the defendant: “Billy, I have been trying

to get you for three years and I think I got you.” The

defendant replied “You got me good, Mr. Parker.” The

defendant contends the statement was not admissable in

the absence of a prior explanation of his right to remain

silent.

In Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16

L. Ed. 2d 694, 10 A. L. R. 3d 974, the United States Su-

preme Court held specifically that volunteered statements

of any kind are admissable without prior explanation of

the defendant’s rights. The defendant’s reply was equiv-

ocal, but in any event it was spontaneous and voluntary

in nature and not the result of interrogation. The objec-

tion was properly overruled.

t

, On redirect examination the State was allowed to ask

Officer Miller, over objection, why the police had not

used their radio. Officer Miller answered: “Well, I re-

ceived information from a party that worked on the

North Side that Mr. Torrence had a Police monitor and

did receive our radio calls.” A motion to strike the an-

swer was sustained and the jury was directed to disre-

gard the statement. A motion for a mistrial was over-

ruled. Striking the answer from the record and admon-

ishing the jury was sufficient. The defendant was not

entitled to a mistrial.

The defendant further contends he should have been

granted a change of venue because pretrial publicity pre-

vented him from having a fair trial. The voir dire ex-

amination of the jury showed that of the jurors selected

to try the case, most had not been exposed to pretrial

publicity to any appreciable extent. Of the jurors se-

lected, all declared under oath they would not be influ-

PRM ieee Ry an

=

enced by what they had read or heard and would base

their verdict solely on the evidence.

It is not required that jurors te totaily ignorant of the

facts and issues involved. It is sufficient if a juror can

lay aside his impression or opinion and render a verdict

based on the evidence presented in court. See Irvin v.

Dowd, 366 U. S. 717, 81 S. Ct. 1639, 6 L. Ed. 2d 751.

We have examined the other assignments of error and

find them to be without merit. The judgment of the

District Court is affirmed.

AFFIRMED.

>

IN THE DISTRICT COURT OF DOUGLAS COUNTY,

NEBRASKA

STATE OF NEBRASKA, )

Plaintiff, )

vs. )

BILLY TORRENCE, )

Defendant. )

MOTION TO SUPPRESS EVIDENCE

DOC. 87 = NO. 131

Comes now the defendant, Billy Torrence, and moves

the Court for an order suppressing any purported evidence

taken from the defendant herein or from the premises

at 3611 Seward Street, Omaha, Nebraska, on the 6th day

of April, 1973, and/or testimony in connection therewith

for one or more of the following reasons:

Pin gS Ne OB ICS Rie WS BoE ANN RS BL ONT AR SEO cl HOE PBT peg a

ee

1. Any purported evidence or property taken from said

residence from the defendant personally was un-

reasonably, illegally and unconstitutionally received

by law enforcement officers and the State without

a valid search warrant and without any prior law-

ful arrest; 3

2. The law enforcement officers who made such search

and seizure did not have probable cause for arrest |

or search and seizure of the defendant or 3611

Seward Street and same was not incident to a law-

ful prior arrest of the defendant;

3. Search and seizure of the premises at 3611 Seward

Street and/or the defendant made by the law en-

forcement officers was unreasonable, unlawful and

violated one or more of the following constitutional

rights of the defendant under the Constitution of

the State of Nebraska:

a) Article I, Section 3, “No person shall be de-

prived of life, liberty or property without due

process of law.”

b) Article I, Section 7, “The right of the people

to be secure in their person, houses, paper and

affects against unreasonable searches and sei-

zures shall not be violated; and no warrant

shall issue but upon probable cause, supported

by oath or affirmation, and particularly describ-

ing the place to be searched and the person or

thing to be seized;

c) Article I, Section 12, “No person shall be com-

pelled, in any criminal case, to give evidence

against himself or be twice put in jeopardy

for the same offense.”

POLO IES TELL ILERE OEE LEE LL IRL LESTER II PI RT PRS erat Ss Nee PO * A OER RRS een

=~

4. The rights of the defendant under the Constitution

and laws of the United States and the State of

Nebraska are unreasonably, unlawfully and with-

out probable cause violated by such law enforce-

ment officers under one or more of the following

provisions of the Constitution of the United States:

a) Amendment IV, “The right of the people to be

secure in their person, houses, papers and af-

fects against unreasonable search and seizure

shall not be violated and no warrant shall issue

but upon probable cause, supported by oath or

affirmation and particularly describing the place

to be searched and the person or things to be

seized.

b) Amendment XIV, “No state shall make or en-

force any law which shall abridge the privilege

or immunities of the citizens of the United States;

or shall any state deprive any person of life,

liberty or property without due process of law

nor deny any person within its jurisdiction to

equal protection of the law.”

The defendant further moves the Court to suppress

an evidence purported obtained from the defend-

ant or his premises 2611 Seward, Omaha, Nebraska,

by law enforcement officers and the State, if any

there be, while the defendant was subsequently un-

reasonably, unlawfully and unconstitutionally de-

tained by Omaha Police and/or their agents, for

the reason that said law enforcement officers of

the State denied the defendant herein timely right

to bail and to legal counsel in violation of Article

I, Section 2, Article I, Section 9 and Article I, Sec-

tion 13 of the Constitution of the State of Nebraska

re ORES I oem EIN EN IM FAERIE POLIS GP EEF ERIE LIE ROL PLIES

LF ABA PRAMS

rn. een ere ail

and. Amendments 4, 5, 6, 8 and 9 of the Constitution

of the United States.

BILLY TORRENCE, defendant

By Clayton H. Shrout

Of Shrout, Caporale, Krieger,

Christian & Nestle

1004 City National Bank Bldg.

Omaha, Nebraska 68102

Phone 342-8015

a

A

IN THE MUNICIPAL COURT OF OMAHA, DOUGLAS

COUNTY, NEBRASKA

STATE OF NEBRASKA )

) ss.

COUNTY OF DOUGLAS )

SEARCH WARRANT

TO: Omaha Police Officer Melvin M. Berney

WHEREAS, Omaha Police Officer Melvin M. Berney

has made affidavit sworn to before me, the undersigned

Pa a neeY WoO ee Ae RR en

ERE eae IT State of Nebraska, and

Whereas, I am satisfied that there is probable cause to

believe that the following grounds exist for issuance of

a search warrant, to-wit:

During the past six months members of the Narcotics

Unit of the Omaha Police Division have been invest-

igating Billy R Torrence regarding possession of, and

Sale of Heroin and other Drugs. Billy R Torrence

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lived at 4110 John Creighton Blvd., until about Novem-

ber of 1972 when he moved to his present address of

11122 No 48th Street. An informant of Officer Charles

Benak, Informant #1, stated that Torrence moved to

11122 No 48th Street so that he might evade the juris-

diction of the Omaha Police Division. Informant num-

ber one’s reliability in the past has been proven hy

the giving of information, which led to the arrest of

Ruchelle White for Possession of Heroin and Cocaine

on January 14, 1973. Informant number one further

relates that Torrence generally does 1iot keep Narcotics

in his house, but states that Torrence keeps Narcotics

on the premises near the louse. Informant number

one states further that Torrence is always present when

the Heroin is being cut, (diluted) and distributes the

Narcotics and cuts the Narcotics at locations away from

his residence. Informant number one made the fore-

going statements as a result of his personal relationship

with Billy R Torrence. Members of the Omaha Police

Division, within the past 30 days, have had a continuous

surveillance of Billy R Torrence in connection with his

Narcotics activity but because of the type operation he

conducts, only being around the heroin physically when

it is cut up, the officers have not been able to make

a solid Narcotics case against him. On April 5, 1973

at about 1100 hours Officers of the Omaha Nebraska

Police Division Vice and Narcotics Section received in-

formation from Bureau of Narcotics and Dangerous

Drugs Agent Jerry Gersham that sometime in the eve-

ning of April 5, 1973 Billy Torrence is supposed to be

leaving Omaha, Nebraska for about one month but be-

fore he leaves Omaha he will be cutting up a supply

of Heroin that can be used while he is out of town.

Armed with this information members of the Omaha

Police Division Vice and Narcotics Unit conducted a

ANE ETRE INEAE OMEGA SE, NEM LIRIAS SAMA ANCHE FAS et HRN ACM? A”

i

és CLIVE RIW EDD TEE

—33—

concentrated surveilance on Billy R Torrence starting

at about 1110 Hours April 5th 1973. On 4 April 1973

at about 1450 Hours the pharmacists from Dall Phar-

macy at 6602 North 30th Street telephoned and advised

that a party had just purchased 8 bottles of 72 Capsule

Dormin and that this party who purchased this Dormin

was the same individual who has purchased Dormin

in large quantities at Dall Pharmacy in the past and :

the pharmacist has identified by mug shots as being

Billy Torrence and the party who purchased the 8

bottles of Dormin on April 4, 1973 was driving a pickup

truc!: with the license plate number being 1-Comm 31980

which is registered to B & D Corp 11122 North 48th

Street. Dormin is widely used as a cutt'ng agent for

Heroin.

Since 1110 Hours April 5, 1973, members of the Omaha

Police Division have kept Billy Torrence under con-

stant surveillance and have observed him entering and

leaving 3611 Seward Street on different occasions dur-

ing this time. Between the hours of 06(0 and 0700

Hours 6 April 1973, members of the Omaha Police

Division Vice and Narcotics Unit have obs2rved sev-

eral parties enter the reside’ ce of 3611 Seward Street

and remain there. One of the:2 parties observed enter-

ing was Billy Torrence. Officers are of the opinion

that this house is the house that Billy is preseatly using

for the cutting up and distributing of illegally possessed

Heroin. This house is regularly occupied by a party

by the name of Elton Love.

BP EARN Oe

You are, therefore, commanded, with the necessary and

proper assistance, to search the following described place

or person, to-wit: Billy R Torrence, Elton Love, and/or

John Doe, and/or Jane Doe and 3611 Seward Street,

Omaha, Douglas County, Nebraska. A Blue and White

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wooden framed, single family dwelling for the purpose

of discovering and seizing the following described prop-

erty, to-wit:

Heroin, Cocaine or any other illegally possessed Drugs

and Instruments for the administering of the afore-

mentioned drugs either homemade or manufactured and

any paraphernalia used for the distribution of illegally

possessed Narcotics and if found, to seize and deal with

the same as provided by law and to make return of

this warrant to me within ten days after the date hereof.

This warrant shall be served in the Daytime.

You are authorized to enter the premises described

«zbove without knocking or announcing your authority

because I have found from the affidavit that due to toilet

facilities inside of this residence that if the Officers have

to announce themselves that the contraband being sought

could easily be destroyed.

GIVEN under my hand this 6th day of April 1973.

WALTER H. CROPPER

Judge of the Municipal Court,

City of Omaha, Nebraska