Petition for Writ of Certiorari — Carratt v. Virginia

ikea Gout Ug

ILED

NOV 26 19m

IN THE jE MICHAEL KODAK, JR., CLE

Sxrpreme Court of the United States

Ocroser TERM, 1974

No. @4-655 {

SaMUEt C. CaRraTT, JR., Petitioner

v. 3

CoMMONWEALTH OF VIRGINIA, Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF VIRGINIA

JAMES H. MICHAEL, JR.

MICHAEL AND DENT, Lp.

414 Park Street

Charlottesville, Virginia 22901

Attorney for Petitioner

>,

INDEX

Page

ON NE a5 oa ha bk a Cid biack'e OW Va Wi Koda cu deec ae 1

vie “tapuntimecg te CURE LEE PTET I COTE CETTE COPE 2

dio gl ec 2

ASRS A WUE MAME Ss 5 osc So as SxS sb aeceearsncs 2

Ressoxs For Granting THE WRIT ..........000005... 6

A. The Police Did Not) Have Probable Cause to

sreak and Enter Samuel (, Carratt, Jr.’s Home

Without Announcement ................006.... 6

B. Petitioner’s Rights Under the Fourth Amend-

ment Were Violated by the Police Officer’s Fail-

ure to Obtain a Warrant Authorizing a No-Knock

DEER Sins eee babs e's (us 0b4k os bck Pas ons... 14

(. Having Once Suppressed the Evidence in a Prose-

cution of the Petitioner, the Trial Judge Conld

Not Later Allow. the Kvidence To Be Used

Against the Petitioner in Another Prosecution .. 16

CONCLUSION

gps cghrvna OT EEE CORE Ce la

Opixion of Supreme Court of Virginia deted June

vices cia AL ELE Ae eS la

Order of the Supreme Court of Virginia dated

NE ees inctseisne<esnacsacerc..., 9a

TABLE OF AUTHORITIES

Cases:

Aguilar v. Texas, 378 US. 108 Syne, Oe ee 8,16

Boud v, United States, 116 US. ual | 17

Brinegar v. United States, 838 U.S. 160 (1949) ....%. 13

Byars vy. United States, 273 US. 98 J eee 17

Carratt vy. Comm, of Va. 215 Va. 55. 205 S.E. 2d 653

es sig, EEL ai a 7

il Index Continued

Page

Coolidge v. New Hompshire, 403 U.S. 443 (1971) .... Ld

Chambers v. Moroney, S99 6 5 | eee 16

Chimel v. California, 395 U.S. 052 (1969) .......-.4.- 1h

Commonwealth vy. DeMichael, 442 Pa. 553, 277 Ad 159

CUPEER Sickie kendo 0a Me keeae ree eeeennea esses 10, 12

Drape r Y, Toited State 8, 308 U.S. lg (1959) Be Pe me de s

Gilbert v. United States, 566 F.2d O23 (1966) 2.2.0... 10

Go-Bart v. United States, 282 U.S. 543 (1951) ........ 17

Gouled vy. United States, 255 US, 298 (W021) 2.2.66... Te

Harris v. United States, 408 U.S. 573 (1971) 2.2.0... so

Johnson Vv. United States, 3385 US. 10 (1947) ........ 14,17

Jones v. Cuited States, 362 U.S, 257 (1900) .......... s

Nat: v. United States, S89 ULS, 347 (1967) ........... 15

Nerv. California, 374 US. 25 (1968) 0.0... 6, 7, 8, 11, 12, 15

McDonald v, United States, 335 U.S. 451 (1948) 2.0... 14

Meyer v. United States, 282 F.2d 598 (4th Cire. 1960)

10, 12

Miller v. United States, 597 UWS. 301 (1958) .......... 15

Parsley vo. Superior Court, Riverside Co., WA Cal.

mptr. G45, 428 Pa 477 (1978)... wei ccncs esses 11, 12

People v. De Sautiago, 76 Cal. Rptr. 809, 453 P.2d 353

GREE CU sax caeweeec lace basi taaksank as week aden 10

People v. Dumas, 190 Cal. Rptr. —, 512 P.2d 1208

CRUE as Seb ee eS Aa aCe Ebates 11

People v. Marquez, 77 Cal. Rptr. 907, — P.2d — (1969) 10

Sabbath vv, United States, 301 US. 585 (1968) 22.0000. 13

Silverthorne Liber Co. vy. United States, 251 US. 885

SRE) a esreneus Wo asd enon eT hasee eee ee ee

Spinelli vy. Cited States, 393 U.S, 410 (1969) 22.2... 8

State v. Daniels, — Mimi. —. 260 N.W. 2d 403 ( ) 12

State v. Mendoza, 104 Ariz, 395, 454 P.2d 140 (1969) 2. 12

Teers ©. Ghie. See U1 CIBGE) nv can celles vccvcedas 15

Trupic 10 NV. United States, 234 U.S, 699 (1948) ...... 17

United States ve Calandra, 465 F.2d 1218 (6th Cire.

SPEED ohs Ge Ree aE LEER a es eae tee 17

United States ex rel. Ametrane v. Gable, 401 F.2d 165

Fay NG, SOON Ca rus cee ee Eo eter 9,12

United States vy. Westa, 192 FL Supp. 160 (D.C. Mass.

aap | Ne eA CT ye a RON ge TAREE Pl gti: gag 17

ROMER SES cancels ce Wee ow are ay ee tee 12

Index Continued ill

Page

United States v. LeClair, 314 F.Supp. $90 (D.C, Wise.

va ga chp en shes Rete sane Ree eae SOEs 17

"nited States v. Lefkowitz, 285 USS. S58 (10GZ) 2 osc» 17

‘yited States ¥. Likas, 448 F.2d 607 (7th Cir. 1971) ..9, 12

“piled Slates Vv. Nap la, 2S bid Ss (D.C NY. 1920) 17

—_

Vale v. Louisiana, 399 VS, 30: (1970) oo... eee ee eee 7

Weeks v. Cuited States, 232 VS, 383 (1914) .....--- Mv

Whiteley v. Warden of Wyoming State Penitentiary,

401 US. GO (1961) 22. c cece wees cree rsvccccers 8, 16

Wong Suny. Uvited States, 371 US. 471 (1905) 2.2... 7

CONSTITUTIONAL PROVISION :

Fourth Amendment .......-0000ee eee eee eres Throughout

fourteenth Amendment ...........0e sere ees Throughout

FEDERAL STATUTE:

98 U.S.C. 1257 (3B) 0. cence ccc cr ensrccccccccsccecucs 2

ule 41(5) FRCP .... 2s. ccsccecccescccessssweencs 17

IN THE

Supreme Court of the United States

OcTroBER TERM, 1974

SamMvuer C, Carnart, Jr., Petitioner

v.

COMMONWEALTH OF VIRGINIA, Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF VIRGINIA

Petitioner prays that a Writ of Certiorari issue to

review a judgmeut of the Supreme Court of Virginia

entered on June 10, 1974, affirming the judgment of

conviction of the Circuit Court of Albemarle County

on January 5, 1973.

OPINION BELOW

On June 10, 1974 the Supreme Court of Virginia

announced in an opinion that there was no reversible

error in the judgment of the Cireuit Court of Albe-

marle County, and affirmed the Petitioner’s conviction

2

for possession of lottery equipment. The Opinion of

the Supreme Court of Virginia dated June 10, 1974

and the Order of the Supreme Court of Virginia dated

August 28, 1974 are set forth in the Appendix, infra.

JURISDICTION

The judgment of the Supreme Court of Virginia was

entered on June 10, 1974. On August 28, 1974 the Peti-

tion for a Rehearing was denied. The jurisdiction of

this Court is invoked pursuant to 28 U.S.C. 1257(3).

QUESTIONS PRESENTED

A. Wreruer It Was Error To Rute THatr PropaBee

Causk Exisrep ror A No-KNock Entry or THE PE-

TITIONER’S HOME IN VIOLATION OF THE FouRTH AND

FoUuRTEENTH AMENDMENTS TO THE CONSTITUTION OF

THE UNITED STATES?

B. WuerHer It Was Error Nor To Require Ponce

Orricers To Oprain AuTHORIZATION From 4A Mac-

ISTRATE Prion To Making a No-KNock Entry or

THE PEeEririoner’s Home IN VIOLATION OF THE

FourtTH AND FourtTeEENTH AMENDMENTS OF THE

CONSTITUTION OF THE UNITED STATES?

C. WHETHER It Was Error To ALLow Evipence To

Be Usep AGAINST THE PeTITIONER Wuicu Hap

BEEN SUPPRESSED IN A Prion ProckeEpING IN VioLA-

TION OF THE FoturtTH AND FourreENtH AMEND-

MENTS OF THE CONSTITUTION OF THE UNITED STATES ?

STATEMENT OF TH™ CASE

On July 16, 1972, Petitioner was arrested at his home

in the pre-dawn darkness as the result of a search of

his house by police officers acting under a search war-

rant. The search was later found by the trial court to

3

be a no-knock entry. Items such as worksheets cover-

ing a three day period, accounting sheets, bank balance

slips, aud $3,861.00 in small denominations were seized.

These items were introduced at the trial of the case,

and were the sole basis for the pr msecution’s case.

On October 22, 1974, Petitioncr was indicted for a

violation of § 18.1-318.1 of the Code of Virginia, 1950,

as amended, which prohibits the operation of an illegal

gambling business and carries a penalty of five years

and a #20.,000 fine. § 18.1-318.1 (b) (2) (1) and

slips, and $3,861.00 in sinall denominations were seized.

(b) (2) CIT) define an illegal gambling operation as

one which involves “five or more persous”” and **which

remains in substantially continuous operation for a

period in excess of thirty days or has a gross revenue

of $2,000.00 in any single day.”

Hearings were held ou November 17th and Novem-

her 24th, 1972, on Petitioner’s Motion to Suppress the

items seized as violating Petitioner's rights under the

Fourth and Fourteenth Amendments of the United

States Constitution in that the search was illegal be-

cause a no-knoek entry was used and the search war-

ant itself was fatally defective. The evidence before

the trial court on the question of legality of the

no-knock entry indicated that the arresting officers

had had the Petitioner under surveillance for a year

prior to the arrest under the suspicion that he was

operating an egal gambling business. The search

warrant was obtained on July 16, 1974 because the

officer in charge, Officer Deavers, felt that the Peti-

tioner had discovered the police surveillance the day

prior to the arrest.

The officers decided sometime prior to arriving at

the Carratt residence that a no-knock entry would be

+

neressary, due to information they had received from

an unnamed informant. The informant had told Officer

T-avers that the evidence of the crime could easily be

de..royed, but did not tell Officer Deavers what kind

of evidence would be found at the Carratt residence,

or whether any would be found at all. Officer Deavers

assumed from the informant’s information that ‘*rice”’

or ‘flash’? paper was involved, Officer Deavers was

also told by the informant that the petitioner, Carratt,

would destroy the evidence, and that he had a gun in

his home and was eapable of using it.

The record does not disclose, however, upon what

information the informant based his assertiens, nor

what evidence gave the officers reason to believe it was

correst. The evidence before the Court showed that

the Carratt residence had been kept under continuous

surveillance from 9:00 p.m., the night before by a police

officer and that no activity had been observed after

2:00 am. Officer Deavers testified that he knew that

Mr. Carratt was crippled and that when he and his

officers arrived at the house, there was no evidence of

any person being awake or moving about inside the

house, and that his men had completely surrounded

the house prior to the entry.

On November 24, 1972, the trial court riled that

the no-knock entry was justified because the officers

had probable cause to believe that the evidence would

he destroyed, but quashed the indictment and sup-

pressed the use of any of the seized items in the prose-

cution of the Petition under § 18.1-318.1 of the Code of

Virginia because the trial court found that the Justice

of the Peace who issued the seareh warrant had not

found probable cause for a violation of § 18.1-318.1 of

the Code of Virginia.

5

The trial court denied Petitioner’s request that the

‘toms seized on July 16, 1972, be returned to him, and

ruled that the Commonuw alth of Virginia could retain

the Petiticuer’s property. On November 27th, 1972,

the Albemarle County Grand Jury returned an indict-

ment against the Petitioner charging a violation of

§ 18.1-340 of the Code of Virginia, 1950, as amended.

§ 18.1-340 of the Code of Virginia provides a mis-

demeanor penalty for the operation of a lottery, or

the buying or selling of chances, or the possession of

lottery equipment.

-

Petitioner was tried and convicted of violating

$18.1-340 on December 12, 1972. Prior to trial, Peti-

tioner renewed his objection to the introduction of the

seized property as made on November 17 and 24, 1972,

and raised the additioval objection that the evidence

having once been suppressed against the Petitioner.

it could net be used in any other proceeding against

him under the doctrine of Silverthorne Lumber Com-

pony VN. United States, 951 US. B85 (1920). The Court

overruled the Motion, On January 9, 1973, the verdict

of the jury, a one year seutence and a #500.00 fine, was

imposed.

Appeal was taken to the Supreme Court of Virginia

on the grounds that the search warrant failed to specify

an offense as required by Virginia law, and on the

grounds that there were No exigent circumstances jus-

tifving a no-knock entry, under both the Federal and

State constitutions. The question of whether authori-

zation should have beer obtained for a no-knock entry

from the magistrate was raised in the brief also.

On June 10, 1974, the Supreme Court of Virginia af-

firmed the judgement of the Cirenit Court of the County

of Albemarle and ruled that exigent circumstances

existed which justified a no-knock entry and that the

6

search warrant sufficiently specified a crime under

Virginia law. The trial court’s ruling that the evi-

dence seized could not be used in a prosecution of Peti-

tioner for violation of § 18.1-318.1 was not considered

by the Virginia Supreme Court in its ruling.

A timely Petition for a Rehearing was filed with

the Virginia Supreme Court raising again the question

of the exigent circumstances which allegedly justified

the no-knock entry and raised in that eourt th + question

of whether the trial court's suppression of the prop-

erty of the Petitioner for a prosecution under § 18.1-

318.1 suppressed the property for use in any other

prosecution under the doctrine of Silrcrthorue Lumber

Company V. United States (supra). A supplement to

the Petition for Rehearing, tiled after the time allowed

for a Petition for Rehearing, raised the question of

whether or not Rule 5A:28 of the Supreme Court of

Appeals of Virginia, the Virginia counterpart of Fed-

eral Rules of Criminal Procedure 41 E, required the

suppression of the evidence used in the prosecution of

the Petitioner under $ 18.1-340, as a matter of State,

not Federal law.

On August 28, 1974, the Petition for a Rehearing

was denied without comment by the Supreme Court of

Virginia.

REASONS FOR GRANTING THE WRIT

A. THE POLICE DID NOT HAVE PROBABLE CAUSE TO BREAK

AND ENTER SAMUEL C. CARRATT’S HOME WITHOUT AN.-

NOUNCEMENT.

The | lurality opinion in Aer vy. California, 374 US.

23 (1563) empowered police officers to break and enter

the homes of persons suspected of crimes when the

police had probable cause to believe that the oeceupant

had discovered the police surveillanee, had demon-

7

strated, through furtive conduct, an intent to evade or

foil the police, and was in the possession of easily

destructible evidence (374 U.S. at p. 40). Left un-

answered by the decision in Aer was the question of

the quantum of evidence necessary to constitute prob-

able cause to believe these exigent circumstances exist.

The Supreme Court of Virginia, im refusing to sup-

press the evidence seized from Petitioner’s home, found

that probable cause existed for breaking and entering

the Petitioner’s home because: (1) the informant had

told the police that the Petitioner would destroy the

eviderce if the Petitioner knew the police were looking

for him: (2) the informant had told Officer Deavers

that the Petitioner had a .38 revelver in his home and

was capable of using it; (3) the informant had told

Officer Deavers that the Petitioner possessed easily

destructible evidence; (4) the police suspected that the

Petitioner had diseovered the police surveillance.

Carratt v. Commonwealth, 215 Va. 55, at p. 59, 205 S.E.

2d 653 at page 656 (1974).

Since the separate grounds relied wpon by the Com-

monwealth of Virginia present varying problems, they

will be dealt with separately.

l. The Police Had No Substantial Basis for Relying on an In-

formant’s Statement that the Petitioner Had a Gun in His

Home, and Would Destroy the Evidence.

The first two exigent circumstances relied upon by

the Supreme Court of Virginia in sustaining the Peti-

tioner’s conviction in this case, that Officer Deavers

had been told by the informant that the Petitioner

would destroy the evidence and that the Petitioner

kept a gun in his home, fail to meet the criterion of a

clear line of decisions set down by this Court in Draper

8

v. United States, 358 U.S. 307 (1959); Jones v. United

States, 362 U.S. 257 (1960): Aguilar v. Teas, 378 US.

108 (1964); Spinelli v. United States, 393 U.S. 410

(1969) ; Whiteley vy. Warden of Wyoming State Peni-

tentiary, 401 U.S. 560 (1971); and Marris vy. United

States, 403 U.S. 573 (1971) that the bare assertion of

facts by an unnamed informanc to a police officer,

absent corroboration, will not constitute probable cause

for a no-knock cntry (Wer vy. California, 374 US. 23,

at p. 36 [1963].)) Draper found that an unnamed in-

formant’s statements would support a finding of prob-

able cause by a police officer if they could be **. .. eor-

roborated by the agent's observations as to the accuracy

of the informant’s description of the accused, and of

his presence at a particular place .. 2°. even though

*... the corroborative elements ... were imnecuous in

themselves 2..." (Wer ve. California, S74 U.S. at p.

36 [1963].) Spinelli and Agadar earried the Draper

analysis forward in the context of the Magistrate's

function of finding probable cause, and required that

an affiant bringing information before a Magistrate

show reasons why the informant’s statements should

he believed, and what the underlying cirenmestances are

which give the informant’s reports credibility. //arris

emphasized that the personal observation by an in-

formant of crimes through participation in the erimes

gave sufficient grounds for erediting the informants

report beeause the informant necessarily declared

against his penal interests.

In the present case, none of the requirements of

these cases is met. No amount of inférmation show-

ing the informant’s reliability conld obviate the prob-

lem in this ease, because the truth or credibility of

What the informant told Officer Deavers could not be

substantiated by the informant’s credibility or relia-

9

bility. The informant’s assertion that the Petitioner

had a gun in his home aud was capable of using it, and

that he would destroy the evidence was an assumption

beyond the realm of the informant’s personal experi-

ence and observation, and at best was based upon

rumor, The fact that the informant may have been

known to Officer Deavers to be reliable does not give

his statement credibility, for the informant was passing

information which, unknown to the informant, could

have been unreliable. Nowhere in the record does it

appear that the informant ever entered the Petitioner’s

home to determine for himself whether the Petitioner

had a gun in his bedroom or not, and nowhere does it

appear even that the informant ever had any dealings

with the Petitioner.

The information which the informant passed on did

not constitute a declaration against the penal interests

of the informant, and cannot be reseused by Harris.

Nor ean it be saved by the fact that the information

given to the officers in the affidavit for the search war-

rant. The statements of the informant could have

heen made mouths before the informant ever became

involved in the Petitioner's affairs.

2. The Informant’s Statements Did Not Provide Probable Cause

To Believe Exigent Circumstances Existed.

Independent of the Spinelli-Harris provliem of cor-

roboration, there remains the problem in this case that

information in the nature of generalized statements

about himman conduct does not suffice to show probable

cause in a particular ease, regardless of whether it

comes from an officer's expericnee with easily destruc-

tible evidence and criminals possessing the same,

United States v. Likas, 448 F. 2d 607, (ith Cire.

(1971]); United States ex rel. Ametrane Vv. Gable, 401

10

F. 2d 165 (3rd Cire. 1968); Meyer v. United States,

282 F. 2d 398 (4th Cire. 1960); People v. DeSautiago,

76 Cal. Rptr. 809, 453 P. 2d 353 (1969); Common-

wealth v. DeMichael, 422 Pa. 553, 277 A. 2d 159 (1971),

or whether that information comes from an informant.

People v. Marquez, 77 Cal. Rptr. 907, -— P. 2d —

(1969). This Court, iteVale v. Louisiana, 399 ULS. 30

(1970) in a search incident to a lawful arrest case,

ruled that the possible destruction of evidence would

not constitute probable cause for breaking and enter-

ing a house, absent a showing of some specific ciremn-

stances indicating that evidence was actually being

destroyed. There is no information in the record

before the trial court to assume that the informant‘s

information came from any other source than the in-

formant’s feeling that since the evidence was readily

destructible, it would be destroyed. Marquez rejected

the contention that generalized statements from an

informant concededly well informed about the Defend-

ant’s operations that he would destroy the evidence

were reliable absent a showing of the facts underlying

the assertion.

Even accepting the statement at face value that the

Petitioner kept a weapon in his house and was capable

of using it, probable cause for a no-knock entry can

not rest on that fact alone. ‘Indeed, it would be a

dubious privilege to *‘keep and bear arms” if by exer-

cising that right a citizen empowered the constable to

batter down his doors in the night. Ker required a

showing of some sort of intent from a suspect act

before a statement of this bland sort could give life

to a reasonable apprehension of danger. Applying

these principles to a proper situation, the 9th Cireuit

in Gilbert v. United States, 366 F.2d 923 (1966), cert.

11

den. 388 U.S. 922 (1967), upheld a no-knock entry

where the police, in investigating the shooting death of

an officer, learned from a robbery suspect who had been

mortally wounded in the shoot-out with the dead officer,

that the dying robber’s confederate in the attack was

armed and possibly hiding in a certain apartment.

California has sustained no-knock entries where the

police show from reliable information that specific cir-

cumstances exist causing peril to the officers, as where

the suspect is shown to be in the habit of answering the

door armed with a 12 gauge shotgun. Parsley vy. Su-

perior Court, Riverside County, 14 Cal. Rptr. 645, 428

P2d 477 (1973); People v. Dumas, 190 Cal, Rptr. 512

P. 2d 1208 (1973).

Taken at face value, the allegations of the informer

that a suspect has a gun ii his home and is inclined

to destroy evidence do not constitute probable cause

for a no-knock entry. Absent a specific showing that

the presence of a gun is in such circumstances as to

show a reasonable danger to officers, or a reasonable

showing that the suspect is about to destroy, or is in

fact destroying, evidence, the Fourth Amendment does

not allow a no-knock entry.

3. The Presence of Easily Destructible Evidence Alone Does

Not Constitute Probable Cause for a No-Knock Entry.

The third ground relied upon by the Supreme Court

of Virginia in sustaining the no-knock entry in this

case was that the evidence itself was easily destructible.

Ker v. California required, however, a totality of cir-

cumstances tending to show a purpose on the part of

a suspect to destroy evidence in requiring a showing

of furtive conduct on the part of the suspect (374 U.S.

at p. 40). In Ker, the suspect made a U-turn and

12

eluded police after apparently discovering that the

police were following him. The lower federal courts

and the State courts, in following the Aer decision,

have uniformly ruled that the mere fact that evidence

is destructible does not constitute probable cause for

a no-knock entry. United States v. Likas, (supra) ;

United States ex rel. Ametrane v. Gable, (supra);

Meyer vy. United States, (supra); United States v.

Gable, 276 F. Supp. 555 (D.C. Pa. 1967); State v.

Mendoza, 104 Ariz. 395, 454 P. 2d 140 (1969); Parsley

v. Superior Court, Riverside County, 104 Cal. Rptr.

643, 428 P. 477 (1973); State v. Daniels, Minn. —.

200 N.W. 2d 403 (1972); Comm. v. DeMichael, supre.

4. The Alleged Discovery of Police Surveillance by the

Petitioner Does Not Constitute Probable Cause for a No-

Knock Entry.

The assertion by the officers that they felt that the

Petitioner had discovered their surveillance and was

therefore motivated to destroy the evidence is insuf-

ficient to authorize a no-knock entry under Aer and is,

in fact, belied by the leisurely manner in which a search

warrant was obtained and executed in this case. Ker

sustained a finding of probable cause where the defend-

ant made furtive actious and eluded the police after

having been discovered. In the present case, the record

before the trial court discloses no such action by the

Petitioner.

The alleged discovery of the police surveillance took

place on the afternoon of the day prior to the raid on

the Petitioner’s home. The officers allowed a period

of time well in excess of twelve hours to elapse before

execution of the search warrant. The claimed concern

of the police that the defendant would destroy the evi-

dence when confronted by police officers borders on

the preposterous, as the time lapse would have allowed

13

the defendant ample time to destroy every incriminat-

ing item aud to warn his confederates, thereby frus-

trating the eutire police operation.

5. An Examination of All the Circumstances Known to the

Police Did Not Reveal Probable Cause for a No-Knock

Search.

Brinegar y. United States, (338 U.S. 160, [1949])

found that the proper perspective for a determination

of probable cause was from the standpoint of ‘ta man

of reasonable caution.”” (338 U.S. at p. 175-176).

Looking at the Carratt situation as a whole, rather

than selectively as the police chose to do, reveals that

probable cause did uot exist for a no-knock entry.

The Carratt residence had been kept under surveillance

for nine hours preceding the break-in. No activity

had been observed in the house since 2:00 a.m. the

morning of the 16th. bLvery indication was that the

Petitioner and his family were sound asleep. At the

time of the entry, the house had been entirely sur-

rounded by police ofiicers, thereby preventing any sort

of escape, and putting the police ina position to detect

any attempt to destroy the evidence. Officer Deavers

knew that the Petitioner was crippled and that any

quick movements on his part, even while fully awake,

were restricted. The officers stated their suspicion

that the Petitioner lad, in fact, been alerted to their

investigation. Aman of reasonable caution would have

known that the Petitioner would have had more than

suiticient time to destroy all the evidence and completely

disband his operation. They could also draw the con-

clusion from their own observations of the situation as

this Court did in Sabbath v. United Stutes, 391 US.

585. at p. 589 (1968), that if there was to be any peril

to the officers, a forced eitry was more likely to pre-

cipitate it.

14

In spite of clear evidence refuting the alleged rea-

sons of the police for entering the Carratt home with-

cut announcement, they chose to do so. The Petitioner

contends that the decisions of this Court forbid such

action, and requests that his conviction be reversed.

B. PETITIONER’S RIGHTS UNDER THE FOURTH AMENDMENT

WERE VIOLATED BY THE POLICE OFFICER’S FAILURE TO

OBTAIN A WARRANT AUTHORIZING A NO-KNOCK ENTRY.

This Court is facing for the first time the question

of whether police officers who know of the alleged

grounds for a no-knock entry well in advance of the

time the actual search warrant is obtained and exe-

cuted, must obtain prior authorization from a magis-

trate for a no-knock entry.

Investigator Deavers and his assistants knew long in

advance of the actual search the reasons why they

would make a no-knock entry of the Petitioner’s home.

In fact, they had agreed upon a no-kuock entry before

arriving at the Petitioner’s home. It is petitioner's

position that when, as here, the officers knew well in

advance of the actual search the reasons allegedly es-

tablishing probable cause for a no-knock entry, they

should be required to obtain authorization from a

magistrate for such an entry.

The quintessential feature of the Fourth Amend-

ment’s prohibition against unreasonable searches and

seizures is the requirement that police officers obtain

authorization for such searches from a neutral magis-

trate, in order to protect the citizenry from officers

whose judgment is too often clouded by their eager

participation in the competitive business of ferretting

out erime’’. Johuson ve United States, 333 U.S. 10,

at page 14 (1947); MeDouald vy. United States, 335

15

U.S. 451 (1948); Chimel v. California, 395 U.S. 752

(1969) ; Coolidge vy. New Hampshire, 403 U.S, 448

(1971). Only in certain well-defined situations, where

requiring the officer to obtain a warrant would in effect

put the Fourth Amendment in the position of imped-

ing proper law enforcement rather than protecting

society at large, has this requirement been waived.

Carroll y. United States, 267 U.S. 182 (1925); Katz

y. United States, 389 U.S. 347 (1967); Terry v. Ohio,

392 U.S. 1 (1962) ; Chimel, supra.

The warrant requirement has served not only to

regulate the fact of the search itself, but the incidents

of the search such as time, manner, place, items to be

seized, and the grounds for the search. It is the Peti-

tioner’s position that the question of whether the

police have grounds to make a no-knock entry should

he determined by a magistrate in the same manner

as any other incident of the search.

The policy of protection afforded by the magistrate’s

function is in accord with such a requirement. A

forcible entry, under the circumstances of this case,

is just as much an unreasonable search as a search

without a warrant, and the Fourth Amendment is

designed to protect against it. Gouled vy. United States,

955 U.S. 298 (1921). This Court found that ‘the re-

quirement of prior notice of authority and purpose

before forcing entry into a home is deeply rooted in our

heritage and should not be given grudging application”

in Miller vy. United States, 357 U.S. 301, at page 313

(1958). Indeed, four justices of this Court found the

requirement of announcement to be inherent in the

Fourth Amendment itself. (Wer v. California, opinion

of Brenan, J. at pages 46-54). Before a citizen is

16

subjected to this type of invasion of his coustitutional

rights, a neutral magistrate should determine if such

action is warranted when the officers have time toe ob-

tain a warrant.

Not only is the poliey behind the Fourth Ameydmeut

requirement of a warrant in accord with Petitioner's

position, but the failure to require prior authorization

from a magistrate for a ue-knock entry would leave

the Fourth Amendment a stop-gap measure, instead

of one of the fundamental liberties of the American

constitutional system. As demonstrated by this case,

once an officer has obtained a search warrant, and the

suspect has done nothing to abdieate his Fourth

Amendment rights, such as by giving the officers rea-

son to believe he actually is attempting to foil or evade

the law by destroying evidenee, the dispaysionate

search warrant procedure can stil produce a letter of

reprise, a warrant to sack as well as search the home

of a suspect. Requiring a magistrate to review such

action in advance would stop the egal practice before

it starts, thereby preventing the unnecessary police

tactics of which this Petitioner complains.

C. HAVING ONCE SUPPRESSED THE EVIDENCE IN A PROSECU-

TION OF THE PETITIONER, THE TRIAL JUDGE COULD NOT

LATER ALLOW THE EVIDENCE TO BE USED AGAINST THE

PETITIONER IN ANOTHER PROSECUTION.

The determination by the trial judge on November

24, 1972 that the issuing magistrate had not found

probable cause for the issuance of a warrant for a

search of the Petitioner’s home for a violation of

18.1-318.1 of the Code of Virginia rendered the search

of the Petitioner's home illegal. Aguilar vy. Teras, 378

U.S. 108 (1964): Chambers ve Marovey, 399 US. 42

(1969); Whiteley ve Warden of Wyoming State Peui-

tentiary, 401 U.S. 560 (1971).

17

The only jurisdiction the trial court had over the

Petitioner or his property at the time of the hearing

on November 24, 1972, was by virtue of an indictment

returned against the Petitioner on November 22, 1972,

charging a violation of $18.1-318.1 of the Code of Vir-

ginia, 1950 as Amended, The trial Court could not

empower the Commonwealth of Virginia to retain

the evidence seized, after suppressing it under that

indictment. Petitioner had a right guaranteed by the

Constitution to the return of his property onee the

trial judge found that probable canse did wot exist

for a search of the Petitioner's home for a violation of

§ 18.1-318.1. Boyd v. United States, 116 US. 616

(1886) ; Weeks v. United States, 252 US. 383 | 14):

Silverthorne Lumber Co. v. United States, 21 U.S.

385 (1920) ; Go-Bart Co. v. United States, 282 iS. 34

(1931); Byars v. United States, 273 U.S. 28 (1927);

Gouled y. United States, 255 U.S, 298 (1921); United

States v. Lefkowitz, 285 U.S, 452 (1932): Johnson v.

l'nited States, 333 U.S. 10 (1947): Trapiano v. Unite d

States, 334 U.S. 699 (1948) ; United States v. Calandra,

465 F. 2d 1218 (6th Cire. 1972); United States v.

Napcla, 28 Fed, 2d 898 [1920] D.C. N.Y.); United

States v. Festa, 192 F. Supp. 160 (D.C, Mass. 1960) ;

United States vy. LeClair, 315 F. Supp. 850 (B.D. Wise.

1970); ef. Rule 41(E) Federal Rules of Criminal

Procedure.

Having once suppressed the seized evidence against

the Petitioner, the trial court could not later allow it

to be introduced in a subsequent prosecution of the

Petitioner. Wong Sun v. United States, 371 US. 471

(1963); Silverthorne Lumber Co., supra, As expressed

by Justice Holmes in Silverthoruc, The essence of a

provision forbidding the acquisition of evidence in a

18

certain way is that not merely evidence so acquired

shall not be used before the Court but that it should

not be used at all.’? (251 U.S. at p. 385).

CONCLUSION

For the reasons set forth above, this Petition for

Certiorari should be granted.

Respectfully submitted,

JAMES H. MicHakL, JR.

Roserr H. J. Lorrus

MICHAEL AND Dent, Lip.

414 Park Street

Charlottesville, Virginia 22901

Attorneys for Petitioner

November 26, 1974