# Petition for Writ of Certiorari — Torrence v. Nebraska > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1888%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1975 - **Citation:** 420 U.S. 928 ## Text Fas Hokie 3% hs Wg knee ino ee aon : Table of Contents t Page E Ae ae A 1 : eee EE REID Oe TOTS EE ee 1 : Co Peete 2 Constitutional and Statutory Provisions Involved ___. 3 : eee Oe Oe Ce 4 : 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 é é 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 - 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). ESE AOR EMT ERE, PRE CERT PI ss OSES : . ee | es See ma Peal —2-- 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 esac ' k inllaas 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; SENET A CONTA SEE Sa AE REE. Hae NNN (4) Introduction of evidence of police investigations and opinions regarding narcotics traffic; weer le os oe tLe (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. Ty N ASR NA LILA oN 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- - Y oa pa Pi & & é é 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 PEL IIR ELE OLE ETL ELOY IS el oo ba Te EE RAR me IS ae 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. > RAINE TICE RY RENT RENE SIE REE ONION ee a 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 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 FI S LOS ETE LPT D EPI GIY CLE ES POLIO ASE ITE OD Fy PT LAAN ent, RI, FMC ICRE LIS, VON rf : us & Hy ¢ & fi f 5 q + | a iy i 3 ae 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 eet | TFT NSD) AMORAD IE DD PIED IIL OE RT Bn AN ACIDITY RY ee FANART 1) | | | te a") PO I EOIN a PE PN 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1888%3A1. Public record. Not legal advice.