Petition for Writ of Certiorari — Mauro v. United States

— = eo BPEL CRED We IED

UPR: Se COURT, U, & Supreme Court, U. S.

FILED

In THE MICHAEL RODAK, JR. C

Supreme Court of the Rnited States

No. _@A4 eo 80 1 :

OCTOBER TERM — 1974

JOSEPH MAURO,

Petitioner,

-against-

THE UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

AARON SCHACHER

Attorney fer Petitioner

32 Court Street

Brooklyn, N.Y. 11201

(212) 855-1003

ARNOLD E. WALLACH

Of Counsel

253 Broadway

New York, N.Y.

(212) 227-0959

pecan aN A RR NR I AO RL RR, RAN RARER

O'ck Batley Printers © P.C. Box X, Staten Isiand, N.Y. 10302 © Tet. (212) 447-5358

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TABLE OF CONTENTS

Page

The Opinion of the Court Below ................... 2

I oe oe cd uid nenes 2

ee et he ce, ETT TET PELE RET RE ee 3

The Principal Constitutional and

Statutory Provisions Involved ..................44. 4

a A

Reasons for Granting the Writ .................... 19

A. The Issue of the Timeliness

OCT tRE WEGUION GO DUMBER 2... ccc cena escens 19

B. The Issue of the Illegal

va tok a eiekdascsananat 27

Re Sh eO Ue aw Uatla bana e ok 440 ad MAN WA RWS 84 37

Cases Cited:

Almedia-Sanchez v. U.S., 413 U.S. 266 (1973) ...... 32

Berman v. U.S., 378 U.S. 530 (1964) .............. 21

Boykin v. Alabama. 395 U.S. 238,

i aticd ceeh Ceeas web wGh koa eduk da4SS AD 26

Chamber v. Maroney, 399 U.S. 42 ..............0005 32

~ ese

il

Cardwell v. Louis, 47 L.Ed.2d 325

(1974)

SR gyn e AB tReet Ay Nes Ae a ee Pee he 34

Coolidge v. New Hampshire, 403 U.S.

BREE BeBe reat asda i gr Ane ene coer Pe SL Re 34

Davis v. Mississippi, 394 U.S. 721 ................. 36

DiBella v. U.S., 369 U.S. 121 (1962) .............. 24

Dyke v. Taylor Implement Manutacturing Co.,

SE. ic ew ha Ae res oes Cord 32

Gouled v. United States, 255 U.S. 298 .............. 34

Griftin v. Breckenridge.

aes ee OE, DENOTED. 6 cx caekendoccadevnaveu 28

Henry v. Mississippi.

ULI os a vas been hac ecusa ceca 25

Himmelfarb v. United States.

ae Le Oe ree re 25

Howard v. U.S., 423 F 2d 1102 (Ciir.

Ce ar ee en Lae ee eurue axe 29

Johnson v. Zerbst, 304 U.S. 458... 0... eee eae 26

Jones v. U.S., 362 U.S. 257,

EIEN ESR aR Ft reap igen ee eee ae ee Oe 24

Kaufman v. United States.

EE cece Gts dukks aks KER ORR DEER TELE 25

Qe tS

Ne oe ee

RNS: SD, i OP when ksh eae saaencsans 24

Michigan y. Tucker, 417 U.S.

433 (1974)

One 1958 Plymouth Sedan v. Pennsylvania,

380 U.S. 633

U.S. v. Bailey, 458 F.2d 408

(Cir. 9th, 1972)

U.S. v. McCormick,

July 17, 1974, Cir. 9th, reported in 15 CLR, 2433 ...... 33

U.S. v. Robinson, 361 U.S. 220 (1960) ............

U.S. v. Tramunti, 500 F.2d 1334 (1974) .......... ;

Wong Sun v. United States,

371 U.S. 471 (1963)

ee ee ee ee ee ee en he a a ee ee a

Other Authorities:

United States Constitution, Fourth Amendment ......

SC MOE os cas EVES ev ahaeh cee keee ee

PP Sk ewan cad bene aeeee CRAWeA SE Oana ke

PEED 5s hese Gh dhakcesanwievahesysabueaes

18 U.S.C. 2123

49 U.S.C. 781

Rules of Criminal Procedure

Rule 12

Rule 41

Froposed Amendments to Federal Rules

of Criminal Procedure for the United States

District Courts

APPENDIX

Appendix A — Opinion of the United States

Court of Appeals (Second Circuit(

Appendix B — Opinion and Decision of the

United States District Court, Eastern

District of New York

“Tre fe os; a cee eeLe et . AST ek ee Oe ee

2 RELY OMS LL TENE: BOT EN LY RN 2 IF

IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM — 1974

No.

JOSEPH MAURO,

Petitioner.

-against-

HE UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT:

The petitioner, Joseph Mauro, prays that a writ of

certiorari issue to review a final judgment and order of the

United States Court of Appeals for the Second Circuit

entered November 25, 1974, which affirmed the judgment

of the United States District Court, Eastern District of New

York, whereby petitioner was convicted after trial before a

court and jury, under counts 1, 2 and 4 of indictment

having docket number 72 C.R. 858. These counts related to

the possession and concealment of counterfeit U.S. Federal

Reserve Notes, in violation of 18 U.S.C. 472 (count 1 of the

indictment); the transferring and delivery of counterfeit:

’

~

money in violation of 18 U.S.C. 473 (count 2 of the in-

dictment); and a conspiracy engaged in with one Louis J.

Stoptello, to possess, conceal and sell counterfeit

obligations and securities of the United States, in violation

of 18 U.S.C. 371 (count 4 of the indictment).

As a consequence of the said conviction the said

petitioner was sentenced July 26, 1974 as follows: two

concurrent two (2) year jail terms on the second and fourth

counts of the indictment; the petitioner was placed on

probation under the first count of the indictment. The jail

terms were to commence after completion of a sentence

that was heretofore imposed upon the said petitioner upon

his conviction in the United States District Court, Southern

District of New York, for a violation of 18 U.S.C. 371 and

for possession of stolen bank property under 18 U.S.C.

2123. That sentence was comprised of concurrent three (3)

year jail terms.

THE OPINION OF THE COURT BELOW:

The opinion of the court below, to wit, the United States

Court of Appeals for the Second Circuit, is set forth below

in Appendix A.

The opinion and decision of the United States District

Court, Eastern District of New York, denying a motion to

suppress the evidence (4th Amendment to the United

States Constitution) is set forth below in Appendix B.

JURISDICTION

The order and judgment of the United States Court of

Appeals for the Second Circuit, affirming the conviction, is

eee -

3

dated November 25, 1974 and the jurisdiction of this Court

is invoked. made and conferred under 28 U.S.C. 1254(1).

QUESTIONS INVOLVED:

1. Were the courts below correct in denying a motion to

suppress the evidence found in a car possessed by the

petitioner because the motion was not timely, the Court of

Appeals for the Second Circuit holding that Rule 41 of the

Rules of Criminal Procedure in effect. permits that motion

to be made during trial but that Rule 12(b)(3) of the

proposed amendments to the Federal Rules of Criminal

Procedure for the United States District Courts, effective

August 1, 1975, does not permit said motion to be made

during trial, the proposed rule providing it must be made

before trial?

2. Was the warrantless seizure of a car driven by the

petitioner at the time of the petitioner's arrest, January 4,

1972, in conformity to the 4th Amendment to the Federal

Constitution and was the subsequent dismantling of the car

which the authorities seized and found counterfeit money,

reasonable when at such time a magistrate for the Eastern

District of New York directed a dismissal of the charges

and the charges were dismissed?

3. Was the initial seizure of the car reasonable under the

said 4th Amendment to the Federal Constitution where

there was no showing or proof that the car contained any

counterfeit money or was used to facilitate the possession

and transfer of the said counterfeit monzy at the time of the

said initial seizure?

bes SSSR

4

THE PRINCIPAL CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED:

The Constitution of the United States, Amendment IV:

“Searches and Seizures:

“The right of the people to be secure in their

persons, houses, papers and effects, against

~ unreasonable searches and seizures, shall not be

violated and no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation,

and particularly describing the place to be sear-

ched and the person or things to be seized.”

49 U.S.C. 781:Contraband Articles — Transportation —

Definitions — (a) It shall be unlawful (1) to

transport, carry or convey any contraband article

in, upon or i *-y means of any. . . vehicle, .. .;

(2) to conceal or possess any contraband article in

or upon... ., vehicle, . . ., or upon the person of

anyone in or upon any. . ., vehicle . . .; or (3) to

use any vehicle to facilitate the transportation,

carriage, conveyance, concealment, receipt,

possession. purchase, sale, barter, exchange or

giving away of any contraband article.”

***

Pee See

(3) Any falsely made, forged, altered, or coun-

terfeit coin or obligation or other security of the

United States or of any foreign government; or any

material or apparatus, or paraphernalia fitted or

intended to be used, or which shall have been used,

in the making of any such falsely made, forged.

altered, or counterfeit coin or obligation or other

security.”

Le RN RN OL AMES OAR AAMAS. i STS

5

Rules of Criminal Procedure

“Rule 41

Search and Seizure (a)***(b)***(c)***(q)***(e)

Motion for Return of Property. A person aggrieved

by an unlawful search and seizure may move the

District Court for the District in which the property

was seized for the return of the property on the

ground that he is entitled tu lawful possession of

the property which was illegally seized. The judge

shall receive evidence on any issue of fact necessary

to the decision of the motion. If the motion is

granted the property shall be restored and it shall

not be admissible in evidence at any hearing or

trial. If a motion for return of property is made or

comes on for a hearing in the District of trial after

an indictment or information is filed. it shall be

treated also as a motion io suppress under Rule

| og

“(f) Motion to Suppress. A motion to suppress

evidence may be made in the Court of the District

of trial as provided in Rule 12."

Rule 12.

“Pleadings and Motions Before Trial; Defenses

and Objections”

‘*(a) Pleadings and Motions. Pleadings in criminal

proceedings shall be the indictment and the in-

formation, and the pleas of not guilty, guilty and

nolo contendere. All other pleas, and demurrers

and motions to quash are abolished. and defenses

and objections raised before trial which heretofore

could have been raised by one or more of them

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shall be raised only by motion to dismiss or to grant

appropriate relief, as provided in these rules.

‘‘(b) The Motion Raising Defenses and Objections.

(1) Defenses and Objections Which May be

Raised. Any defense or objection which is capable

of determination without the trial of the general

issue may be raised before trial by motion.

(2) Defenses and Objections Which Must Be

Raised. Defenses and objections based on defects

in the institution of the prosecution or in the in-

dictment or information other than that it fails to

show jurisdiction in the court or to charge an

offense may be raised only by motion before trial.

The motion shall include all such defenses and

objections then available to the defendant. Failure

to present any such defense or objection as herein

provided constitutes a waiver thereof, but the court

for cause shown may grant relief from the waiver.

Lack of jurisdiction or the failure of the indictment

or information to charge an offense shall be

noticed by the court at any time during the pen-

dence of the proceeding.

**(3) Time of Making Motion. The motion shall be

made before the plea is entered, but the court may

permit it to be made within a reasonable time

thereafter.

(4) Hearing on Motion. A motion before trial

raising defenses or objections shall be determined

before trial unless the court orders that it be

deferred for determination at the trial of the

general issue. An issue of fact shall be tried by a

7

jury if a jury trial is required under the Con-

stitution or an act of Congress. All other issues of

fact shall be determined by the court with or

without a jury or on affidavits or in such other

manner as the court may direct.

(5) Effect of Determination. If a motion is

determined adversely to the defendant he shall be

permitted to plead if he had not previously

pleaded. A plea previously entered shall stand. If

the court grants a motion based on a defect in the

institution of the prosecution or in the indictment

or information, it may also order that the

defendant be held in custody or that his bail be

continued for a specified time pending the filing of

a new indictment or information. Nothing in this

rule shall be deemed to affect the provisions of any

act of Congress relating to periods of limitations.”

Proposed Amendments to Federal Rules of Criminal

Procedure for the United States District Courts:

“The following proposed amendments’ were

transmitted to Congress on April 22, 1974 by the

Chiet Justice of the United States pursuant to an

order of the Supreme Court of the United States.

Paragraph 2 of the order provided that the

proposed amendments were to take effect on

August 1, 1974. Pub. L. 93-361, July 30, 1974, 88

Stat. 397, provided: ‘That, notwithstanding the

provisions of sections 3771 and 3772 of title 18 of

the United States Code. the effective date of the

proposed amendments to the Federal Rules of

Criminal Procedure which are embraced by the

order entered by the United States Supreme Court

SESE LT LEI CLE, GONE, ABC INS Bt

8

on April 22, 1974, and which were transmitted to

the Congress by the Chief Justice on April 22,

1974, is postponed until August 1, 1974."

Rule 12.

‘Pleadings and Motions Before Trial; Defenses

and Objections. * * * “(b) Pretrial motions. Any

detense, objection, or request which is capable of

determination without the trial of the general issue

may be raised before trial by motion. Motions may

be written or oral at the discretion of the judge.

The following must be raised prior to trial:

**%

(3) Motions to suppress evidence; or

* e6

STATEMENT OF THE CASE

At the outset and for the Court's convenience, it is

brought to this Court's attention that the indictment herein

was consolidated with another indictment charging the

petitioner with other crimes. That indictmeni bears

number 72 CR 857 and charged the petitioner with

violating 18 U.S.C. 894(a) the illegal extension of credit.

Trial under that indictment was therefore consolidated

with the trial which this Court is now concerned with.

However, the same jury that convicted the petitioner under

the indictment at issue, acquitted the petitioner of violating

18 U.S.C. 894(a).

The basic issues presented here relate to the seizure of

the petitioner's car when he was initially arrested January

4. 1972. However, objectivity would require that this Court

be made aware of the salient facts leading to the

. . ae Pp toe see pr ig tes gsee tT CY

ON REELED RL ERE LN ROTO SGI IFILL ASE 9 PY ALES NET RD GT a PN se pate >

SSAA PL ELE TELE LORE ER OE COAT NENT SOE TR I Coe pe

9

petitioner's arrest, and the seizure of the car, the holding of

the car for about two (2) months by the authorities, the

dismantling of a portion of the car, whereby counterfeit

money was found concealed therein.

According to a government witness named Louis

Stoppiello the petitioner prior to October 1971 was lending

him money. Stoppiello fell behind in payments. The

petitioner and Stoppiello discussed ways that repayment

could be made (Ao, A10, All).* In October 1971 Stop-

piello and the petitioner discussed the distribution of

counterfeit money whereby the witness in transferring such

counterfeit money was to be credited in regard to the ac-

crued interest due the petitioner (A16, A17). This witness,

however, never kept records of any loans that were

allegedly made by the petitioner to him (A17, A18).

In October and November of 1971 the petitioner was said

by Stoppiello to have given him counterfeit money (A18,

A19). The witness could not recall how much of this

counterfeit money he disposed of (A20, A21). In December

1971 the witness claimed that the petitioner told him that

he had new and better counterfeit currency; that the

present stock of the spurious currency was inferior (A11-

A24). Thereupon, the petitioner gave this witness some

spurious currency (A24). That day Stoppiello went to the

hospital (A24, A25).

On December 10, 1971 Stoppielio while at the hospital

met a person named to him as “Mickey” (A25S). Stoppiello

related that he met ‘“‘Mickey”’ through ‘*Sal’’, a person who

was instrumental in getting loans from the petitioner for

below.

IEF es

10

Stoppiello (A25, A26, A29). While at the hospital this

witness had spurious currency and he actually gave some to

“Mickey”. He also discussed future transactions with

“Mickey” (A30, A311, A33).

Following Stoppiello’s discharge from the hospital on

December 17, 1971 he again met “Mickey”, this time on

December 30, 1971 (A33, A34). On this occasion he sold

him some counterfeit money (A34). “Mickey” told

Stoppiello that “his people” were pleased with the prior

purchases and wanted to make a larger one (A36).

“Mickey” and the witness, Stoppiello, then agreed to

transact the sale for spurious currency denominated $5,000

for which the consideration was to be $1,250. This was to

occur on January 4, 1972 (A37). Stoppiello thereupon

called the petitioner and informed him of this possible

transaction (A37, A38).

Pursuant to an arrangement with the petitioner,

Stoppiello met the petitioner on January 4, 1972. The

petitioner was accompanied by a friend of his named Lenny

Bilts. The place of meeting was “Antons Luncheonette”’

(A39). The petitioner and his friend were suspicious of

‘Mickey’, the buyer, and thereupon they discussed means

to ascertain whether the authorities were involved. In other

words, according to Stoppiello the witness and the

petitioner were going to substitute ordinary paper for the

currency to ascertain whether the authorities were in-

vestigating the case (A40, A41). However, “Mickey” did

not come at the designated time and therefore Stoppiello

called him. Stoppiello was told that the buyer for the

currency would come later that day at 2:00 P.M. (A41).

Mauro, the petitioner, also allegedly told the witness that

he was to pass the currency with “Sal” (A42). There upon,

according to Stoppiello, the petitioner told him to go to the

petitioner's car and take the currency from the back seat

(A43-A45). Stoppiello identified the car as a 1971 or 1972

Mustang (A44). Thereupon Stoppiello retrieved the

counterteit from the petitioner's car (A45). Stoppiello

secreted the money in a nearby apartment house (A45,

A46).

Meanwhile “Sal” arrived with “Mickey” (A46).

Uitimately this witness saw the arrest of the petitioner

and others (A46, A47). Later that day this witness was also

arrested (A48).

Stoppiello also testified that after he was arrested he

spoke to the petitioner about an agent named Whitaker

(ASO). The petitioner accused him of “setting him up”

(ASO, AS1). Further, that the petitioner told him that his

attorney read a government report showing that the

petitioner's car was impounded (A511).

This witness also testified that he saw counterfeit

currency in the petitioner's car on different occasions

(AS2). He told the ptitioner he would not pay off the loan

because he was going to take the “bust” for him (A52).

Michael Riley called by the government. testified that he

was an agent with the United States Secret Service (A53).

He acted as an undercover agent, that is, he would pose as

a participant in a criminal transaction, so as to effectuate a

successful investigation of a suspect (A53, A54). That on

December 3. 1971 he met a person named Sal Seminaro

who gave him three $10.00 counterfeit bills (AS4).

Seminaro was a government informer (A55, A56). He

initially met Sal Seminaro December 10, 1971 and went to

the Veterans Hospital (AS6, AS7). There he met Stop-

12

piello, the previous witness (AS6, AS7, A5S9). Stoppiello

told this witness that he had spurious currency; Riley, the

witness, asked to see them and Stoppieilo displayed them

to him. As a matter of tact he seld him some (A5S9, A60,

A6}).

These exhibits were admitted in evidence as govern-

ment’s exhibit 11 (A64).

Riley recounted that he had a discussion with Stoppiello

as to future transactions (A64-A66). Stoppiello referred to

one “Joe as his source (A66). Later Riley spoke to

Stoppiello about more transactions and Stoppiello told him

that he spoke to “Joe” about a purchase of $10,000

spurious currency at a price of $27.00 or every $100.00

spurious bill (A66).

Later this witness met Stoppiello on December 10, 1971

(A69, A70). At this meeting one or two surveilling agents

were nearby (A70). The witness spoke to Stoppiello about

the quantity of counterfeit and the price (A71). At this

occasion this witness also received two spurious bills from

Stoppiello (A71); (Government's Exhibit 12 received in

evidence subject to connecting the petitioner with the

conspiracy; A71, A72, A73). The witness then described

the type and nature of counterfeit currency (A73-A75).

On December 30, 1971 Riley, the testifying witness,

called Stoppiello and arranged a meeting for January 4,

1972 (A7S, A76).

On January 4, 1972 Riley met Stoppiello at Bay Parkway

and 72nd Street to acquire additional counterfeit money,

the terms of the sale having already been set (A77). Riley

was with another agent named Rick Sanno (A77). Seven

a

13

other agents were nearby :A78). Riley met Stoppiello and

Seminaro (A79). He introduced Stoppiello to Sanno, the

other agent (A80). Stoppiello and Seminaro agreed to get

the counterfeit and transfer the same to this witness (A81).

In the interim, the agent drove his car around and

eventually parked it at a gas station near Avenue O (A81).

He left the car and went to a yas station and made a

telephone call from a booth located in the gas station

(A82). While making the call Riley saw the petitioner drive

a green Mustang car (A83). The petitioner “appeared” to

be watching him (A83). When Riley completed his call and

walked towards the car, the petitioner approached him and

gave him a “slight pat down”. That is touched him at his

waist (A83, A84;. The witness entered his car (A85). There

was another individual in the petitioner's car (A85).

Meanwhile Riley entered his car and then saw Stoppiello

and Seminaro approach. Seminaro entered the witness’ car

and gave him the counterfeit (A85, A86); (Government's

Exhibit 13, A86, A87). This was received subject to con-

nection (A87). Then Riley signaled the other agents and

pretended to arrest Seminaro, meanwhile the petitioner

and the occupant of the petitioner's car were arrested

(A88).

As the trial progressed, the petitioner's trial counsel

brought up the issue of the authorities finding counterfeit

money in the steering wheel column of the petitioner's car

(A98, A99). Counsel explained that the basis of his ap-

plication to suppress was that the search and seizure of the

petitioner's car was made approximately two (2) months

after the initial seizure of the petitioner's car (A99). It thus

appeared that the petitioner's car was seized by the

authorities when the petitioner was arrested on January 4,

1972. The car was held by the government and searched in

14

March 1972 (A99, A100). The motion was made at the time

by the petitioner because the petitioner's tria\ counsel first

found out about the search of the petitioner's car when he

was given 3500 materials shortly before he made the motion

and that he did not know that the product of the search and

seizure was to be part of the government's case (A100,

Al13, Al14).

The government attorney then being asked by the Court

under what authority the car was “forfeited” stated “it was

never actually forfeited. It was returned to the defendant”

(A101).

The Court explained to government counsel that once

the car was ascertained to transport counterfeit bills it was

subject to forfeiture and that therefore since the car

belonged to the government every part of the car would be

under the government's control and the government bad a

right to take it apart. The Court explained that that’s not

what happened in this case because the defendant was

arrested and the agents took full and complete custody of

the car but that they had no proof that the car was being

used to transport counterfeit bills and then the Court

added that as a matter of fact the car was never forfeited

(A102).

The Court further stated that the authorities should have

gotten a search warrant (A106).

During further argument by the government it was

admitted that the complaint against the petitioner in the

Magistrate's Court was dismissed (A110). Nevertheless, the

car notwithstanding the dismissal of the complaint in the

Magistrate's Court, was retained by the government (A110,

All1). The Court then stated that there was no ground to

iS

hold the petitioner even after the government had the car

and therefore the Court inquired as to what grounds the

government had to take the steering wheel apart (A111).

Then the government argued that the government

dismissed the case pursuant to the insistence of the

Magistrate (A111).

The Court pointed out a difficulty, namely, ‘that the

arrest was made in January and the car wasn't searched

until March (A111). Further, the Court pointed out that

the government didn’t proceed with any forfeiture by

advertising and therefore the Court. believed that the

government had no grounds for a forfeiture (A111, A112).

The Court and counsel then formulated the law un-

derlying the disputed issue. That issue was that the basis

for determining the legality for the seizure of the car was

the government's right to forfeit the car and that the usual

law as to search and seizure incident to an arrest was not an

issue (A123). Counsel for the government then cited 49

U.S.C. 781 subdivision (a) subsection (3) which related to a

forfeiture of a vehicle used to facilitate the transportation,

carriage, receipt, concealment, purchase, sale, borrowing,

exchange or giving away of contraband (A124, A125).

Government's counsel argued that the car was used by

petitioner January 24, 1972 to make an observation of

Riley, the government witness who testified he was making

a telephone call from the public telephone booth; that

earlier Riley observed the petitioner's car to be parked

several feet behind the agent's car and that the petitioner

was in his car at the time and that Stoppiello testified that

Mauro was suspicious of the person who was going to make

the purchase of the counterfeit currency (A125). Therefore

government counsel concluded that the petitioner's car was

16

being used to insure the safety of the money or the integrity

of the transaction and therefore was being used to facilitate

what petitioner believed to be a sale (A125, A126). It was

then admitted by government counsel that on March 3,

1972 Stoppiello agreed to cooperate with the government

and told an agent that the car contained counterfeit

currency hidden in the steering column (A127).

Petitioner's trial counsel pointed out this was after the

Magistrate dismissed the case in February (A128).

There was further argument by petitioner's trial counsel

' that the petitioner did not know of the seizure of the bills

(A131, A132).

Further colloquy disclosed that the petitioner's attorney

discovered the above matter when he was given a copy of

the report of an agent during the course of the trial (A138).

Furthermore, the Court ruled that the government had the

burden on that application to show that the search and

seizure was proper (A138).

As to the forfeiture proceeding the government referred

to files, Government's Exhibit 36 for identification, that

the agents seized the car and turned it over to the Customs

Bureau; the government attorney stated this was to show

that the forfeiture was intended (A139). Petitioner's trial

counsel then stipulated that those files were regularly kept

by the Customs Bureau (A140). They were accordingly

admitted in evidence as Government's Exhibit 36 (A141).

Government's Exhibit 37 in evidence were files of the

Public Stores Sales and Seizures. the Bureau of Customs

(A141).

It was again established that the dismissal of this case

against the petitioner by the Magistrate was February 15,

1972 (A149).

It was also established that ultimately the government

returned the car to the petitioner (A149, A1S0).

Initially government counsel explained that the case was

dismissed in the Magistrate's Court because of the six

month rule promulgated by a plan to bring cases on for

disposition within six (6) months (A1SO).

Then the government counsel further explained that:

“The period between that time, our position vis a

vis Mauro, or at least the United States Office

position was here is a man who at that time the

government had no evidence to go against. My

personal feeling was as long as that was the case

there was no reason to further harass him by

keeping his car.”

“Whether or not | was informed of a discovery of

the bills in the car shortly after they were

discovered . . . and I might say, Your Honor, my

reaction to the agent at that time was just the same

that you had yesterday.”

“TL said, ‘Why don’t you cail me up and ask for a

warrant before you seized those bills?’ a

(A154).

Futher colloquy on the part of the government's counsel

disclosed that:

18

“In any event, the car was given back to the man, I

suppose not out of any legitimate prosecutorial

purpose but simply because we had no case against

the fellow at that time and he ought to get his car

back, that is all . . .“° (A1S4, AISS).

The Court indicated that petitioner and his former

attorney knew that the counterfeit currency was concealed

in the steering column of the returned car (A156, A157).

The Court denied the motion holding that (A) the car

was legally seized because there was proof that the car was

used to transfer bills to Stoppiello (A169); (B( the govern-

ment failed to institute timely forfeiture proceedings, but

the petitioner also failed to proceed in timely fashion

waiting until March 13, 1972 (A169, A170); (C) the

government delay in regard to the impounding of the car

wes not unreasonable because of a continuing investigation

(A170); (D) the return of the car was irrelevant and the

government had a right to forfeit the car (A170); (E) the

petitioner's motion was noi timely made (A171).

Finally, an agent by the name of Giggiano testified that

he was a Secret Service Agent and that he became involved

in this case initially on January 24, 1972 (A177). That he

arrested the petitioner and also Stoppiello (A178).

The car was seized by the agents and was identified by

this witness as 1967 Mustang (A179).

That on March 31, 1972 this witness met Stoppiello and

as a result of that conversation went to a garage known as

‘**Max Ford's Garage” at Varick Street (A170, A180). The

19

petitioner's car was there (A180). He searched the car, took

apart the steering column and found the counterfeit

currency (A180, A181). These were admitted in evidence as

Government's Exhibit 38 (A181, A182).

On cross examination, Viggiano testified that on January

4, 1972, he saw the petitioner and his car at 2:30 P.M.

(A183, A184). However, he didn’t see any spurious

currency in the petitioner's car (A184).

Other agents earched the car but found no counterfeit in

it (A184, A185).

He next saw the petitioner's car on March 3, 1972

(A185). The Customs Bureau had possession of it from

January 4, 1972 to March 3, 1972 (A185). The petitioner

was not in possession of that car from the time of his arrest

until March 3, 1972 (A186).

The petitioner was not present when the car was

searched (A187).

REASONS FOR GRANTING THE WRIT:

A. THE ISSUE OF THE TIMELINESS

OF THE MOTION TO SUPPRESS:

Existing Rule 41 subdivision (e) provides that a motion

to suppress based on 4th Amendment considerations may

be made before trial. The rule further provides an ex-

ception to this. An unawareness by the accused of the

grounds of the motion is an exception. The rule further

permits the Court in its discretion to entertain a motion

during the trial.

PEA eo

Proposed rule 12, of the Rules of Criminal Procedure,

supra, not yet in effect, directs that the time for the motion

to suppress be made before trial.

In this case, the trial court heard the motion on its merits

during trial. Its denial was on the procedural ground,

timeliness, and on the merrits. A reading of the opinion or

decision of the Court of Appeals for the Second Circuit

discloses that it was concerned with the lack of timeliness of

the motion. Be that as it may, nevertheless it would seem

that the Court below should have considered the merits of

the motion before reaching its affirmance.

The affirmance does not end this matter. In U.S. v.

Robinson, 361 U.S. 220 (1960) the petitioner filed an

untimely notice of appeal so that he could appeal his

conviction from the Court of Appeals, District of Columbia

Circuit. This Court held that relief was not available and

that there could be no appeal. However in thus denying

relief the prevailing opinion of this Court noted in footnote

14, page 230:

‘*The allowance of an appeal months or years after

expiration of the prescribed time seems un-

necessary for the accomplishment of substantial

justice, for there are a number of collateral

remedies available to redress denial of basic rights.

Examples are: . . .; the power of a District Court

to entertain a collateral attack upon a judgment of

conviction and to vacate, set aside or correct the

sentence under 28 U.S.C. Section 2255; and

proceedings by way of writ of error coram nobis.”

Thus, the issue may arise in this case in regard to

collateral relief only this time in the face of an adverse

————.. a"

21

ruling by the trial court on the merits of the motion but the

absence of an appellate consideration. At any rate the

Court below created more problems than were solved by its

affirmance on the procedural issue. See Davis v. U.S.. 41

L.Ed. 2d 109 (1974), (Justice Rehnquist dissenting.) That

case dealt with the scope of collateral review of criminal

convictions under 28 U.S.C. 2255 and it held that such

statute affording post-conviction relief is not limited to

consideration of jurisdictional or constitutional claims. The

petitioner, however, has only a constitutional claim so that

this case is well within the scope of that statute.

Therefore, in the interests of expeditious procedure

which is so favored. the Court below should have con-

sidered the appeal on its merits and ruled thereon.

As the dissent stated in Berman v. U.S., 378 U.S. 530

(1964), Justices Douglas and Goldberg joining with Mr.

Justice Black, at pages 533-534:

‘My belief is that, even if Rule 37(a)(2) is held to

require dismissal of this appeal, ... this Court

should remand the case to the Court of Appeals

with directions to treat the appeal as an application

for collateral relief under 28 U.S.S. Section 2255.

Such a course was followed in similar cir-

cumstances by the Tenth Circuit in Hixon v.

United States, 268 F.2d 667. where, as here, the

appeal was late ... And we said in Bartone v.

idk, oie a ee

***Where state procedural snarls or obstacles

preclude an effective state remedy against un-

constitutional convictions, federal courts have no

other choice but to grant relief in the collateral

22

proceeding. ... But the situation is different in

federal proceedings over which both the Court of

Appeals and this Court . . . have broad powers of

supervision. It is more appropriate whenever

possible, to correct errors reachable by the appeal

rather than remit the parties to a new collateral

proceeding.” ”

“This is precisely what I think should be done in

this case, but the Court insists on affirming the

harsh action of the Court of Appeals in dismissing

theappeal.. .”’

It was further stated by Mr. Justice Black in his dissent

on pages 537-538 that:

“Through history men have had to suffer from

legal systems which worshiped rigid formalities at

the expense of justice. It is for this debt we will

remember the Laws of the Meads and the Persians

and the injustice borne by the torturous labyrinth

of common-law pleading which it took the creation

of courts of equity to counteract. Of course, any

civilized system of judicial administration should

have enough looseness in the joints to avert gross

denials of a litigant’s rights growing out of his

lawyer's mistake or even negligence in failing to file

the proper kind of pleading at the prescribed

moment .. .”° (Citations omitted).

The aftfirmance in the Court below gave a great deal of

weight and consideration to the prospective and proposed

rule 12 not yet in effect, so as to allow the government to

keep the conviction. This Court allowed the prosecution to

retain convictions when it wrestled with the issue of

SIT: cones Ste

23

retroactivity of innovative decisions interpreting certain of

the Bill of Rights. See Michigan v. Tucker, 417 U.S. 433

(1974). Thus, the prosecution has it both ways.

The issue here is the petitioner's fundamental right of

privacy and the integrity of the 4th Amendment. It is put

that these are the considerations that survive the niceties of

procedure. Even proposed rule 12 bears with its

prospectivity, in subdivision (d) (1):

(d) Notice by the Government of the Intention to

Use Evidence.

“(1) At The Discretion of the Government. — At

the arraignment or as soon thereafter as prac-

ticable, the government may give notice to the

defendant of its intention to use specitied evidence

at trial in order to afford the defendant an op-

portunity to raise objections to such evidence prior

to trial under subdivision (b) (3) of this Rule.”

The explanation given in the trial court by the defense

was that the second attorney the petitioner had did not

know of the currency or evidence concealed in the steering

wheel apparatus. Nor was there any showing that the

petitioner himself was aware of a motion to suppress. Asa

matter of fact, there was no showing that this particular

evidence was to be used by the government.

Since the possible right under proposed Rule 12 is not in

effect. the present Rule 41 allowing the motion to be made

during trial should be liberarlly construed. Rule 2 of the

Rules of Criminal Procedure clearly provides that the

purpose of the Rules, among other things. is to provide for

fairness in the administration of justice.

24

As was held in DiBella v. United States, 369 U.S. 121

(1962) at page 129 thereof, footnote 9:

“Although Rule 41 (e) . . ., codifies prior practice

in preferring that the motion be raised before trial,

and provides for the taking of evidence on disputed

factual issues, the usual procedure followed at this

early stage is to decide the question on affidavits

alone; in addition, it has long been accepted that

the point can, and on occasion must, be renewed at

the trial to preserve it for ultimate appeal. Gouled

v. United States, 25S U.S. 298 ...; Lawn v.

United States, 355 U.S. 339. . . . We do no more

than recognize that ordinarily the District Courts

will wish to reserve final fuling until the criminal

trial.”

As this Court held in Jones v. U.S... 362 U.S. 257, 264

(1960):

". . . this qualification, proves that we are dealing

with carrying out an important social policy and

not a narrow, finicky procedural requirement.”

Present counsel who was trial counsel for petitioner was

retained after a prior attorney who represented the

petitioner was discharged. Petitioner's counsel argued at

the trial court that he did not know that the counterfeit

currency was found concealed in the steering column of the

seized automobile. Further, it was argued that at that time

the car was already in the possession of the petitioner after

the seizure of the concealed evidence. The issue in this case

was that since there is a fundamental constitutional right

involved, that right could not be forfeited by counsel for

petitioner. The record here is silent as to just why the first

PLR PRD ELL AE LIED MIE ENE E LT 5A AE REI

25

trial attorney did not communicate this fact to petitioner's

trial counsel (A133. A137, A160, A161, A164).

Nor was the omission to make the pre-trial motion an

element of trial tactics and strategy. See Henry v.

Mississippi. 379 U.S. 443 (1965), rehearing denied 380

U.S. 926. In that case, a constitutional question was

presented by the petitioner. The respondent argued that

since there was a state trial, state law governed and the

denial of the enforcement of the federal constitutional right

rested on state procedural grounds. However, this Court

held to the contrary on pages 451-452. This Court stated

that:

“Although trial strategy adopted by counsel

without prior consultation with an accused will

not, where the circumstances are exceptional,

preclude the accused from asserting constitutional

claims . . .. we think that the deliberate bypassing

by counsel of the rule as part of the trial strategy

would have that effect on this case.”

It was not shown anywhere in this case that the failure to

make the motion prior to trial was “trial strategy”. See

Kaufman v. United States, 394 U.S. 217 (1969 at page

221). See also Himmelfarb v. United States, 175 F.2d 924

(Cir. 9th-1949), at page 931.

The Court of Appeals for the Second Circuit in U.S. v.

Calabro, 467 F.2d 973 (1972), considered the issue as to the

scope of an attorney's authority in respect to waiving the

rights of an accused. On pages 985-986 it was recognized

that:

“The American Bar Association Project on the

Standards for Criminal Justice concludes that a

26

defendant is entitled to make the ultimate decision

only in regard whether to plead guilty, whether to

waive a jury, and whether to testify: ‘all other

Strategic and tactical decisions are the exclusive

province of the lawyer after consultation with his

Gt aks”

There was no proof that the petitioner and his trial

counsel consulted in regard to this omission.

Nor was there any proof in this case that in regard to the

basic right of privacy and in regard to due process of law to

the Sth Amendment to the Federal Constitution, counsel or

the client adopted as part of its strategy the foregoing of the

motion to suppress prior to trial reserving that issue for the

trial itself. The record is completely mute that petitioner

even if he knew that the counterfeit currency was concealed

in the car, that he had a right to move to suppress or avail

himself of safeguards that should be adopted in regard to

the trial disclosure of this evidence by the government. A

waiver of a fundamental right is ineffective un‘ess it is

made knowingly; see Johnson v. Zerbst. 304 U.S. 458. A

waiver of a fundamental right cannot be accomplished

upon a “‘silent record’, see Boykin v. Alabama, 395 U.S.

238, 242, 243 (1969).

Nor can the petitioner himself be faulted. There was no

showing that the petitioner knew the requirements of Rule

41, supra. There was no showing that trial counsel was

instructed to move to suppress by the petitioner. There was

no showing that the petitioner even if he might have known

about the recovery of the concealed counterfeit knew that it

was to be used in evidence against him, or alternatively,

knew the remedies open to him in regard to the seizure.

The Second Circuit itself. in the recent holding of U.S. v.

27

Tramnunti, S00 F.2d 1334 (1974), stated on page 1340 in

part that:

... the government argues that the appellant

himself, . . ., obviously must have known that he

was the beneficiary of whatever immunity he was

granted. Although Tramunti is hardly a stranger in

the criminal courts. we are loathe to attribute to

him the legal sophistication necessary to ap-

preciate, particularly while the subject of a

vigorous cross-examination, the circumstances

under which he testified in 1966, seven years before

Since there is a presumption against a waiver of a

fundamental right, the courts below should have held or

directed to be held a full evidentiary hearing to ascertain

just why there wasn’t a motion made before trial. The first

counsel for the petitioner did not raise this issue. In this

respect therefore the petitioner was unrepresented by

counsel during a vital stage of a criminal prosecution.

Second, counsel claimed that he did not know of the

retrieving of this particular item of the government's

evidence until during the trial when he read documents

given to him under 18 U.S.C. 3500. It clearly was upon the

government to establish a knowing and conscious waiver

and to produce evidence to rebut the presumption against

such waiver.

B. THE ISSUE OF THE

ILLEGAL SEARCH AND SEIZURE:

The trial court which determined the motion adversely to

petitioner but also on the merits, relied on the forteiture

Statutes found in 49 U.S.C. 782 and 782, supra.

ee

28

The forfeiture statutes do not provide for any evidentiary

standard to validate the seizure of a car and its subsequent

forfeiture. The 4th Amendment to the Federal Constitution

generally provides that a search and seizure to be proper

has to be based upon probable cause. That is probable

cause must be the basis for the issuance of a search warrant

among other things. In this case there was no search

warrant but it would nevertheless seem that probable cause

is the underlying standard. Put another way, there can be

no lesser requirement in the absence of a search warrant

than in the case where a search warrant is issued. See

Wong Sun v. United States, 371 U.S. 471 (1963).

It may be recognized and indeed it is, that the

automobile today is an integral part of the average

American’s way of life. It is further put to this Court that it

is the material embodiment of the fundamental right to

travel; see Shapiro v. Thompson, 394 U.S. 618 (1969);

Griffin v. Breckenridge, 403 U.S. 88, 105, 106 (1971).

In Clay v. U.S., 239 F.2d 1% (Cir. Sth, 1956) at pages

200-201 it was held that:

“If officers have the right to interfere with the

essential pursuit of a nation of automobilists, it

must be based on what is known or reasonably

believed before the commandeering starts. To

allow justification to arrest on discovery after

intrusion would permit ‘the government ... to

justify the arrest by the search and at the same time

to justify the search by the arrest’. . .”

At the time the car was seized, there was not one iota of

evidence and there was no probable cause that the vehicle

contained any contraband. The fact that a car may be

LE ETS OT ETL LT IT COO TE ET TILE ELE DEAN NS Ca ERIE ILENE ELE SOON

29

driven to the site where a crime is being committed, does

not warrant the seizure of the car on the grounds of a

statutory forfeiture. In Howard v. U.S., 423 F.2d 1102

(Cir. 9th, 1970), Howard was arrested driving a Chevrolet

which contained narcotic drugs. The Chevrolet was under

prior observation by the authorities who saw it entering the

United States from Mexico and being driven by a govern-

ment informant who left it at a place designated by a

person whom the informant telephoned. Later, Howard

came to the area of the Chevrolet arriving there in a Buick

automobile which he parked near the Chevrolet. He en-

tered the Chevrolet and drove it from the place he parked

his Buick and was ultimately arrested and searched. In

searching Howard, the authorities seized the key to the

Buick. Using these keys the authorities entered the Buick,

drove it to a parking lot and then searched it, finding

narcotic drugs. It was held that the search of the car, the

Buick, which the accused drove so that he could have

access to the Chevrolet was void. The court held that there

was no warrant to search the Buick, the seurch was not

incident to the arrest, and there was no consent to search.

It was held further that the basis for the search was that it

was an incident to a seizure of an automobile under the

forfeiture provisions of 49 U.S.C. 781 and 782. The court

reasoned that the seizure was valid only if the authorities

had probable cause to believe that the Buick had been used

. to “facilitate’’ the transportation of the narcotics in the

original car, the Chevrolet, that was driven over the United

States border, see page 1103. It was then stated on pages

1103-1104 that:

‘*, . . there was no evidence that the seizing officers

had cause to believe that the Buick then contained,

or ever had contained, contraband. Nor was there

any evidence that an illegal transaction had taken

30

place within the vehicle. The government proved

merely that the officers at the time of the seizure

- knew that Howard had driven the Buick car to the

location of the load car. ..., the seized car was

merely the means of locomotion by which the

person suspected of participating in illegal drug

traffic reached a site of that activity. The ease or

the difficulty of transporting the marajuana in the

_ Chevrolet was not effected by the manner in which

Howard reached the load car. The use of an

automobile to commute to the scene of the crime

does not justify the seizure of that automobile

under Sections 781 and 782 ... (Citations and

internal quotations omitted).

In this case on January 4, 1972 the time of the arrest of

the petitioner and the seizure of the car, there was no

evidence whatsoever that the petitioner used the car as a

storage place for contraband or counterfeit. The most that

the authorities could claim was that the petitioner arrived

at the scene in an automobile. The government during the

argument of the application at the trial court never even

advanced the argument that the car was seized because it

contained any contraband. Rather the government argued

that the cat was used to “facilitate” the possible transfer of

the currency or to protect the possessors of it (A125-A126).

It is now put that because of the widespread use of

automobiles, anyone's automobile can be seizued if that

person, prior to commiting a crime and after a crime

arrives at the scene in an automobile. An automobile under

those circumstances is not the means of carrying out the

crime, it is not an integral element of the operation to

effectuate the crime. It may be the means of travel to the

scene of the crime. but that is happenstance. It is not an

ingredient of the commission of the act. Persons can go to

‘

31

the scene of the crime by public transportation or by

walking. Because of the drastic nature of a forfeiture, it is

respectfully submitted that to effect the forfeiture of a

vehicle the government must be put to stringent proof and

the statutes be narrowly construed.

¢

It is respectfully submitted that the issue was wehther the

agents knew at the time of the seizure that the car con-

tained the contraband. There is no evidence in this record

that there was such knowledge. As a matter of fact, the

court in denying the motion stated that the investigation

was a continuing one. The trial court in denying the motion

further held that the authorities had a right to seize the car

under a forfeiture statute, hold the car because the in-

vestigation was continuing and thus ultimately investigate

further to ascertain whether the car contained the for-

feiture. It may be recognized that a search is good or bad

from its commencement, not what it produces.

What actually happened here was not the conventional

search and then seizure of contraband as incidental to a

warrantless arrest, rather there was initially a search for no

cause, a retention of the seized car for two months, a search

of the seized car, and ultimately an indictment against the

petitioner. However, the 4th Amendment mandates that

both the search and seizure be valid. As was stated in U.S.

v. Jeffers, 342 U.S. 48 (1951), at page 52:

* - . we do not believe that events are so easily

isolateble. Rather they are bound together by one

sole purpose to locate and seize the narcotics of

respondent. The search and seizure are, therefore

incapable of being untied. . . .”

32

The authorities in this case did not know at the time of

the seizure of the car that it contained any counterfeit

currency. Therefore, there was no probable cause to seize

the car. Even in automobile cases where courts recognize

that the mobility of a car is an exception to the warrant

requirement of the 4th Amendment to the Federal Con-

stitution, it has nevertheless been held that to justify the

seizure of a car there had to be probable cause that the car

contained the contraband subject to the seizure. See Dyke

v. Taylor Implement Manufacturing Co., 391 U.S. 216,

pages 221-222; Chamber v. Maroney, 399 U.S. 42, at pages

46-47. See also U.S. v. Bailey, 458 F.2d 408 (Cir. 9th,

1972; at page 410.

In Almeida-Sanchez v. U.S., 413 U.S. 266 (1973), an

automobile was stopped 25 miles from the Mexican border

by a “roving” border patrol of the United States Im-

migration Service. The car was searched for aliens. The

authorities had no warrant, and there was no probable

cause to believe that the ultimate accused committed any

offense. The search revealed that the car contained nar-

cotics. The government argued that the authorities had a

right to stop the automobile under the Immigration and

Nationality Act, found in 8 U.S.C. 1357(a) which provided

for the warrantless searches of automobiles within a

reasonable distance of the boundary of the United States.

The opinion in that case recognized that the stop and

search of a moving automobile could be made without a

warrant, and held that this was a narrow exception to the

warrant requirements of the 4th Amendment to the Federal

Constitution. But this court also stated on page 269 that

that doctrine did not:

“declare a field day for the police in searching

automobiles. Automobile or no automobile, there

33

must be probable cause for the search .. .”

and on page 272 this court added that:

“It is clear, of course, that no act of Congress can

authorize a violation of the Constitution .. .”

The prevailing opinion in that case also stated that:

“The needs of law enforcement stand in constant

tension with the Constitution’s protections of the

individual against certain exercises of official

power. It is precisely the predictability of these

pressures that counsels the resolute loyalty to

Constitutional safeguards ... ”’

In U.S. v. McCormick, July 17, 1974, Cir. 9th, reported

in 15 Criminal Law Reporter, 2433, it was ruled that the

federal forfeiture statutes are constitutional but never-

theless are governed by 4th Amendment considerations. In

that case the defendant's automobile was parked in front of

his house and was seized on the theory that it contained

contraband. The authorities had no warrant. It was held

that in construing the forfeiture statutes, the case law as to

search and seizure governed. Furthermore, the fact that an

automobile is involved does not necessarily make a

warrantless search a valid exception to the general

requirements of the 4th Amendment. The court further

stated that it was relying on One 1958 Plymouth Sedan v.

Pennsylvania, 380 U.S. 633, which held that an automobile

is not the obvious and apparent type of contraband subject

to search and seizure, but is derivative contraband.

Therefore, the subsequent search of the automobile in

this case remote in time and place trom the initial arrest of

34

the petitioner and the seizure of the car was void. At the

very least the authorities should have procured a search

warrant. This is argued because the car was already in the

possession of the authorities, the car was Stationery and the

authorities should have therefore first made application to

procure a search warrant to dismantle that portion of the

car where the currency was said to have been concealed.

See Coolidge v. New Hampshire, 403 U.S. 443.

In Cardwell v. Louis, 41 L.Ed. 2d 325 (1974) there was

no decisive ruling by this court in a case which involved the

seizure of an automobile from a murder suspect who was in

custody where the authorities actually had a warrant of

arrest. The issue in that case was whether under the 4th

Amendment the authorities had a right to seize the

automobile and examine its exterior at a police im-

poundment area where the car was removed from the

parking lot where it was initially left by the suspect. The

authorities had probable cause for the arrest of the suspect

and they also had probable cause to believe that the car was

being used in the commission of a crime being investigated

because a similar automobile was observed leaving the

scene of the crime, and the color of the suspect’s car was

similar to the color of the paint scrapings from the victim’s

car and lastly that the suspect’s car was recently repaired

and certain portions of it were altered, thus showing a

consciousness of guilt on the part of the suspect. The

suspect was invited by the police to appear at headquarters

and he drove his car to the headquarters, parking it at a

public lot half a block away. Later in the afternoon the

suspect was arrested pursuant to an arrest warrant. Prior to

his arrest he was permitted to call his lawyer and attorneys

actually appeared on his behalf at the time of the formal

arrest. At the time of the arrest his car keys and the

parking lot claim check were released to the police and the

ee ered

ae ne ee

35

authorities arranged for the car to be transported to an

impoundment area. The next day the authorities examined

the exterior of the car and procured evidence from the

paint scrapings.

Notwithstanding these facts, there was no majority

opinion in this court. Mr. Justice Blackmun offered an

opinion sustaining tie police procedures and this was

joined in by the Chief Justice of this Court and Justices

White and Renhquist. Mr. Justice Powell did not join in

that opinion but would sustain the conviction on the

grounds that the case came up by way of a writ of habeas

corpus to test the conviction, Mr. Justice Powell being of

the opinion that the Court should not have entertained the

case. Four other justices in an opinion by Mr. Justice

Stewart, held that the procedures violated the 4th

Amendment to the Federal Constitution. That opinion held

that the authorities should have first procured a search

warrant. It was recognized by Mr. Justice Stewart that

there was ample opportunity for the police to first procure a

search warrant and that the fact that an automobile was

involved did not remove the case from the general warrant

requirements of the 4th Amendment.

As a matter of fact in this case the prosecution at the trial

court admitted that the U.S.Attorney told the agents after

the discovery of the evidence that they should have gotten a

warrant before they made the seizures (A154). The

prosecutor explained to the trial court that he was in error;

that he thought a warrant was required to make a seizure in

the car until he read a case. Meanwhile the trial court told

the prosecutor that the case he read was irrelevant (A154).

Furthermore, the prosecutor admitted that at the time the

car was returned to the petitioner it was because the

government had no case against the petitioner (A154,

A1SS). |

36

Notice should be taken that in this case petitioner was

first indicted in July following his initial arrest in January

1972. The dismissal of the charges against him at the

Magistrate’s Court was had in February 1972. The

examination of the car was in March 1972. Therefore, the

government openly admitted that there was no probable

cause to hold the petitioner at the time of his arrest and at

the time of the seizure of the car.

Under the circumstances of this case the initial arrest of

the petitioner was therefore void because it was not

founded on probable cause. The dismissal of the case by

the Magistrate constituted, it is submitted, res adjudicata

that there was no probable cause to hold petitioner. There

can be no probable cause therefore for the holding of the

car which was incident to the arrest not founded on

probable cause. Probable cause it is submitted, under the

4th Amendment to the Federal Constitution, the governing

standard to determine the validity of an arrest where the

authorities have no arrest warrant. See Davis y.

Mississippi, 394 U.S. 721; Wong Sun v. U.S., 370 U.S.

471.

Since petition :r was first .adicted the June following the

January arrest and seizure of the car, there is thus ample

showing that the prosecution did not even have the

minimum evidence required to support a valid indictment.

Nor did the government institute timely proceedings to

validate the forfeiture as required under 49 U.S.C. 784. See

also 19 U.S.C. 1604.

— a a ~~ "

Te ae eT ae ee

37

CONCLUSION:

It is respectfully submitted that this petition for a writ of

certiorari be granted.

Respectfully submitted,

AARON SCHACHER

Attorney for Petitioner

A Member of the Bar

of the United States

Supreme Court

ARNOLD E. WALLACH

Of Counsel

A Member of the Bar

of the United States

Supreme Court.

EE EE a a

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