# Petition for Writ of Certiorari — Carratt v. Virginia

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0404%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1975
- **Citation:** 420 U.S. 973

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0404%3A1. Public record. Not legal advice.