Petition for Writ of Certiorari — Shirokey v. City of Cleveland Heights

ne

os-717 | SS)

a | OCT 23 1992

| DFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

JOSEPH EMILE SISSLER

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

STUART R. SHAFER (P-25599)

REID AND REID

One Business & Trade Center

200 Washington Square, North

Lansing, Michigan 48933-1384

(517) 487-6566

Attorneys for Defendant-

Petitioner

i

QUESTIONS PRESENTED

1. Whether a defendant has a Sixth

Amendment right at a pretrial suppression

hearing where the essential witnesses are

police officers who refuse to testify after

exercising their Fifth Amendment rights, and,

if so, whether such a conflict should be

resolved in favor of the defendant because of

the inherent danger of substantial prejudice.

2. Whether an "anticipatory" search

warrant is valid where the contraband was not

on a sure course to its destination and where

the warrant was based not on probable cause,

but on numerous contingencies outside the

control of the police.

3. Whether a defendant's challenge to a

search is limited to only those items in which

_(s)he has a property or possessory interest

where the police flagrantly disregarded the

limiting terms of the search warrant and

seized items far outside the scope of the

warrant and where the prevailing law is that

ii

even evidence which is properly seized

pursuant to a warrant must be suppressed if

the officers executing the warrant exhibit

"flagrant disregard" for its terms.

4. Whether a defendant's Fifth Amendment

rights are violated where (s)he is

interrogated within view of his/her attorney,

a “co-suspect," who, unbeknownst to defendant,

was intentionally not advised of his Miranda

rights and denied his repeated requests to

call an attorney, and where defendant made an

equivocal request for an attorney.

iid

“(TABLE OF CONTENTS

SE IEE ccc cc cc scceeceveses

BOMAS GE CROSS ccccccccccsecescsccecccs

DTM c<keseeccoseeeccescesesecs

TE case nbbess 60666 00 eceeeenss

Statutes .........02. Coc ccccceccccscece

POFCIGS tO Proceedings .....ccccccccics

EE CGR SSG GSS OS SK eco ceesseccce

eee OE AEE CRB cc ccc cccccccesses

PEE SG Soe weccccccceccccaccses

The Proceedings Below ............. es

Statement of Facts ....... ecccccscccs

ARGUMENT

I. The Sixth Circuit Incorrectly

Found That Sissler Was Not

Denied His Sixth Amendment

Right to Confront His

DE ccehebeGGGw6eeescecces

II. The Sixth Circuit Incorrectly

Found That The Anticipatory

Search Warrant Satisfied

Both The Sure Course and

Probable Cause Standards .......

42-324

3i-35

~

iv

III. The Sixth Circuit, Finding

That Sissler Has Standing

And That The Police Engaged

In Egregious Police

Misconduct, Improperly Failed

To Quash the Search and

Suppress The Evidence .......... 35-44

Iv. The Sixth Circuit, Based On

An Incorrect Assumption of

Facts, Erred In Finding

That Sissler's Fifth

Amendment Rights Were Not

VEORRUGE 606 ce ecescmrsececcesses 44-48

REASONS FOR GRANTING THE WRIT .......... 48

CONCLUSION ..cccccecs ooeceecaseseecseces « 50

Appendices

Appendix A

Decision of United States Court

of Appeals (6th Cir. June, 1992) .. 1-34

Appendix B

Judge Benjamin F. Gibson's

Jume ©, 1990 GRiMmioM ccccccccessess 39-55

Appendix C

Judge Benjamin F. Gibson's

August 30, 1991 Opinion ........... 56-77

Appendix D

ERRASTMORE ccccacesssese oneeeene -..- 78-80

Appendix E

Plea Agreement ........ceceeeeeeeee 81

Appendix F

Judge Gibson's October 10, 1990

Order Reopening Proofs ............ 82-88

act

Appendix G

Judgment in a Criminal Case ....... 89-90

Appendix H

Hon. Benjamin F. Gibson's

October 7, 1991 Opinion & Order.... 91-93

Appendix I

Hon. Benjamin F. Gibson's

October 14, 1992 Order ............ 94-95

Appendix J .

Affidavit for Search Warrant ~

and Search Warrant ..........22.---967111

Appendix K

FBI Agent Langkos' Testimony .....112-115

Appendix L

Testimony from Hearing held

May 24, 1990 before the Hon.

eeeaes Hs: GAD wes cccesesacves 116-121

Appendix M

Testimony from Suppression

Hearing held March 22 and

8 ee ee ee 122-138

Appendix N

Testimony from Suppression

Hearing held March 19 &

(var | SPreverrrrerrerererrerrererer? © io?

Appendix O

Inventory of Financial Records

Seized; Inventory of Computer

DEG ce ccccovecsadactceqerees siesta

Appendix P

Notes from Team Meeting Minutes ..187

Appendix Q

Note from Lt. Paul Whitford ......188

vi

Appendix R

Excerpt from Lansing Police

Report (Statement from APA Warren

and APA Cipriani) ........eeeeee--189-191

Appendix S

Excerpt from Supplemental Report. .192-196

Appendix T

Excerpt from "Policy Governing

Reverse Drug Transactions" .......197-199

Appendix U

Excerpt from "Guidelines for

Operation of the Tri-County

Metro Narcotics Squad" ...........200

Appendix V .

Excerpt from Sworn Statement

of James Joseph .......-.eeeeeeee--201-205

Appendix W

Temporary Restraining Order ...... 206-209

Appendix X

Testimony of Chris Magnus and

Steven Luciano ...cccccccccccceee 210-212

Appendix Y

Criminal Complaints re: Daniel

Zolnai and Leslie Diebolt ........213-216

Appendix Z

Excerpt of MCL 764.1(1) and

MCL 764.1A(1) wccccccccccccccccveedsl

vii

TABLE OF CASES

PAGE

Chambers v Mississippi, 401 U.S.

Bes Bee CAOTes 65's kb Oe bw ek ca eba wes aa, a2

Davis v Alaska, 415 U.S. 308, 318

SE ata c es ee bho 6k GR ROK howe 31

Dodge v United States, 272 U.S. 530,

Bon GEPEee seoeceveveer TEU CUPL T TES > |

Greene v McElroy, 360 U.S. 474,

496 (1959) ....... Se aaa oa ale GA 23

McCray v Illinois, 386 U.S. 300, 314

(1967) eeeereeeeneeeeeeeeeeeeneneeeneeee 27

Michigan v Mosley, 423 U.S. 96, 104

RU Re ee. ee ee De 48

Minnesota v Olson, 495 U.S. 91 (1990).. 38

Owen v Alabama, 849 F.2d 536 (11th Cir

ae li ee a re ee 47

Owen v State, So. 2d; 45 C.L. 1536

(1990) eeeee#eeee#e#«¢ eoeeteee3s#se#se*ee#eee#e#ee#ee#€e¢e. 47

Pennsylvania v Ritchie, 480 U.S. 39,

FF . . . eee pieraaakans 27

State v Tolson, 248 Iowa 733, 82 NW2da

105 (1957) eeeesse7seneeeteeneteenee@#e#neeeee 50

Stevens v Bordenkircher, 746 F.2d 342,

347 (6th Cir. 1984) ........ a eee

Towne v Dugger, 899 F.2d 1104 (1990).. 46,47,

48

viii

United States v Garcia, 882 F.2d 699

(2d Cir.) cert denied, 493 U.S.

943 (1989) e*eeee#*ee#eesee#eee#ee#e#eee#e#ee#ee#e##e##e#e##

United States v Heldt, 688 F.2d 1238,

1239 (D.C. Cir. 1981), cert denied

sub. nom. Hubbard v United States,

ASG U.8. GEE CEBGR) naracnsunvcces

United States v Hendricks, 743 F.2d 653

(9th Cir. 1984), cert denied, 470

Cis Se CUE 6 oo ha e608 4 oc aes

United States v Henson, 848 F.2d 1374,

1383 (6th Cir. 1988), cert denied

500 GB. CE. FOA GIGGD) .coccccccss

United States v Jones, 641 F.2d 425

(6th Cir. 1981) eeeete*ee#ee#ee#es#s#se#s#ee#e#ee#e#e#

United States v Kimble, 719 F.2d 1253,

1257 (5th Cir. 1983) quoting

Fountain v United States, 384

F.2d 624, 628 (5th Cir. 1967))...

United States v Lambert, 771 F.2d 83,

cert denied, 474 U.S. 1034 (6th

Cir. 1985) eeeeeeeeeetsgsee*ee*e#e#e#ee#egee#ee#s#see#e#e#*#

United States v Lowe, 575 F.2d 1193

(6th Cir.), cert denied, 439 U.S.

el SNE cg cause babes cece sees

United States v Medlin, 842 F.2d 1194,

R196 (20th Cie. 1968) ..0ccccscs

United States v Moore, 954 F.2d 379,

381 (6th cir. LODA) occccesecccece

United States v Osorio, 949 F.2d 38,

eS: ¢ COE eee

1x

United States v Rettig, 589 F.2d 418,

423 (9th Cir.

1978) eeeeseeenee3e8kcee#ee#e#@

United States v Talkington, 843 F.2d

United States v Upton, 763 F.Supp. 232,

1041 (7th Cir.

ME keccucen cans

239 (S.D. Ohio 1991) ........... :

CONSTITUTION

U.S. Const.,

Ves BORG, SORE TY acc cececesceseses

U.S. Const.,

STATUTES

28 U.S.C.

MCL 764.1(1)

MCL 764.1a(1)

OTHER

F.R.

Crim.

Amend VI

ee

Sec. 1254(1)

P.

11(a) (2)

36, 38

39, 40

41

45

33 |

1

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

JOSEPH EMILE SISSLER

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

TO: THE HONORABLE, THE CHIEF JUSTICE AND

ASSOCIATE JUSTICES OF THE SUPREME COURT OF THE

UNITED STATES

PRAYER

The Petitioner, Joseph Emile Sissler,

Defendant-Appellant in the Court below,

respectfully prays that a Writ of Certiorari

issue to review the Opinion of the United

States Court of Appeals for the Sixth Circuit

entered in this case.

2

OPINION BELOW

The Opinion of the United States Court of

Appeals for the Sixth Circuit affirming the

Decision of the United States District Court

for the Western District of Michigan, Southern

Division was entered on June 10, 1992 in an

unreported decision and is reproduced hereto

as App. A. The District Court's June 8, 1990

Opinion is reproduced hereto as App. B. The

District Court's August 30, 1991 Opinion is

reproduced hereto as App. C.

CONSTITUTION

U. S. Const., Amend 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 searched,

and the persons or things to be

seized.

U.S. Const., Amend V:

Capital Crimes; double jeopardy; self-

incrimination; due process; just

compensation for property

| ,

3

No person shall be held to answer for

a capital, or otherwise infamous

crime, unless on a presentment or

indictment of a Grand Jury, except in

cases arising in the land or naval

forces, or in the Militia, when in

actual service in time of War or

public danger; nor shall any person be

subject for the same offence to be

twice put in jeopardy of life or limb;

nor shall be compelled in any criminal

case to be a witness against himself,

nor be deprived of life, liberty, or

property, without due process of law;

nor shall private property be taken

for public use, without just

compensation.

U.S. Const., Amend VI:

28

Jury trial for crimes, and

procedural rights.

In all criminal prosecutions, the

accused shall enjoy the right to a

speedy and public trial, by an

impartial jury of the State and

district wherein the crime shall have

been committed, which district shall

have been previously ascertained by

law, and to be informed of the nature

and cause of the accusation; to be

confronted with the witness against

him; to have compulsory process for

obtaining witnesses in his favor, and

to have the Assistance of Counsel for

his defence.

STATUTES

U.S.C. Sec. 1254(1):

"Cases in the courts of appeals may be

’

7

reviewed by the Supreme Court by the following

methods:

"(1) By writ of certiorari granted

upon the petition of any party to any civil or

criminal case, before or after rendition of

judgment or decrees."

PARTIES TO THIS PROCEEDING

The caption of this case in this Court

contains the names of all parties.

JURISDICTION

The Opinion of the United States Court of

Appeals for the sixth Circuit was filed on

August 6, 1991. Upon the motion of

Petitioner, this Court granted an extension of

time for filing until November 7, 1992. The

jurisdiction of this Court is invoked under

Title 28 U.S.C. § 1254(1).

STATEMENT OF THE CASE

Introduction

On January 16, 1990, Petitioner, Joseph

Emile Sissler, Defendant-Appellant below,

("Sissler"), was an overnight guest at the

Okemos, Michigan home of Robert L. Baldori and

his girlfriend, Kelly S. Boyle. Shortly after

3

midnight, two dozen local and federal law

enforcement officers burst through the door to

execute a federal "anticipatory" search

warrant of the premises.

This search warrant and its execution has

led, inter alia, to the issuance of criminal

charges against two of the police officers,

including the chief evidence officer, for

wilfully exceeding the terms of the search

warrant by removing (stealing) property from

the premises. It has been established that

the police intentionally seized property far

beyond the limiting terms of the search

warrant, including, inter alia, $1,030 in

Canadian currency, computer printers, modems,

and disk drives, a fax machine, records, and

three dozen private and intimate (nude) color

Slides and several nude photographs of Ms.

Boyle, which were stolen by the police and

later passed around to other people and used

in a "stag slide show" at the police station.

It has also been established that the Asset

6

Seizure Unit, comprised of local police

assigned to a tri-county narcotics unit,

"pniggy-backed" this federal search warrant and

intentionally seized property outside the

scope of the search warrant.

At the heart of this appeal, and the

numerous and serious constitutional issues it

raises, is whether evidence seized by the

police, during this embarrassing and

documented display of intentional and flagrant

misconduct can be used by the government to-

against Sissler.

The Proceedings Below

On January 16, 1990, a criminal complaint

was filed against Sissler. On January 24,

1990, the complaint was dismissed and a two-

count indictment was filed in its stead

charging Sissler with Attempt Possession with

the Intent to Distribute Marijuana and

Interstate Travel in Aid of Racketeering.

(App. D).

On June 8, 1990, the district court

ee

4

denied Sissler's Motions to Quash the Search

tient and to Suppress Defendant's

Statements. (App. B). On June 12, 1990,

pursuant to a plea bargain, Sissler entered a

conditional plea of guilty, thereby preserving

his right to appeal the denial of his pretrial

motions. F.R. Crim. P. 11(a)(2). (App. E).

On September 21, 1990, the district court

granted Defendant's Motion to Reopen Proofs

and for a Rehearing on the basis of newly

discovered evidence relating to police

misconduct in the execution of the search

‘warrant. (App. F). On August 30, 1991,

following the reopened suppression hearing,

the court below denied Defendant's renewed

iMotion to Suppress. (App. C). On September

23, 1991, Sissler was sentenced to 57 months

in prison. (App. G). On October 7, 1991, the

district court granted Defendant's Motion for

Release Pending Appeal. (App H). On June 10,

(1992, the United States Sixth Circuit Court of

“Appeals filed its Opinion denying Sissler's

” |

8

appeal. (App. A). On October 14, 1992, the

district court ordered that Sissler appear to

begin serving his sentence on October 23,

1992. (App. I).

STATEMENT OF FACTS

On January 16, 1991 at 12:15 a.m., two

dozen law enforcement officials, including

members of the Tri-County Metro Narcotics

Squad ("Metro"), Ingham County Prosecutor's

Asset Seizure Unit, Federal Bureau of

Investigation ("FBI"), Internal Revenue

Service ("IRS"), and Western Michigan

Enforcement Team ("WEMET"), (collectively "the

police"), executed a federal "anticipatory

search warrant" ut the home / law office /

recording studio of well-known musician and

local attorney Robert L. Baldori ("Baldori"),

at 2719 East Mt. Hope Road, Okemos, Michigan.

Present in the premises at the time of the

police raid were Baldori and his girlfriend,

9

Kelly Boyle ("Boyle")', of the same address,

and Petitioner - Defendant, Joseph Emile

Sissler ("Sissler"), a resident of Virginia.

Although the police had no information

about Sissler and did not even know his

identity prior to the raid, he was searched,

interrogated, arrested, taken to jail, and

charged in federal court that very same day.

In contrast,-Baldori, who was the target of

the investigation, was not arrested,

Mirandized, nor charged with any crime that

night. Thirty-one days after the raid on his

premises, the Ingham County Prosecutor's

Office ("ICPO") issued three state felony

marijuana charges against Baldori. No federal

charges were ever brought against Baldori.

On January 12, 1990, FBI Agent Dennis

Langkos, with the assistance of assistant

United States Attorney, John Bruha, prepared

en affidavit and application for a search

'Ms. Boyle, who was alone in her

bedroom at the time of raid, was not

involved in any criminal activity.

10

warrant, and an anticipatory search warrant,

which was authorized by the federal

Magistrate. (App. J). The affidavit consists

almost entirely of unsupported, unreliable,

and uncorroborated hearsay from James Joseph

("Joseph"), an informant and convicted felon

who was under enormous pressure to target and

set-up Baldori pursuant to a plea and sentence

agreement. * Although this was a federal

anticipatory search warrant, no marijuana had

been obtained for this reverse transaction

until three days after the warrant had been

@Lankgos' affidavit for the search

warrant avers that Joseph told him that

he sold Baldori marijuana on four

occasions in 1989, the first alleged

transaction occurring in April or May,

1989. The affidavit fails to indicate

the date of any other transaction. (App.

J) Thus, within the four corners of the

affidavit, there is no indication that

Joseph sold marijuana to Baldori after

May, 1989, 8 months prior to the issuance

of the anticipatory search warrant.

Langkos admits that neither he nor anyone

else made the slightest attempt to verify

any of the information provided by

Joseph. (App. K).

ioe enemies!

11

i

‘issued.? None of the two dozen law

enforcement officers involved in the raid had

previously participated in obtaining or

executing an anticipatory search warrant.

‘None of the executing police officers had read

nor been given a copy of the search warrant or

its supporting affidavit, nor did any of them

know what items were "particularly" described

or what items could be seized under its terms.

| (app. L, pp. 15-16, 130, 159-160). The police

officers admitted, upon reviewing the search

warrant after its execution, that they were

unable to determine its time limitations.

| (App. M, pp. 145, 163-164, 170-171, 222, 226,

(344). The search warrant was drafted by

a and AUSA Bruha intending that it not

/restrict the seizure of documents to any time-

frame. To justify the seizure of thousands of

r

:

‘

«

¥

ey

‘his

3on January 11 or 12, 1990, Metro

Lt. Whitford had merely "inquired" about

the possibility of obtaining 160 pounds

of government-owned marijuana, as

reflected in 413 of the affidavit. (App.

J, 413).

12

documents dating back as far as 1969, AUSA

Bruha argued to the district court that the

police were not limited in their search by any

time periods relating to documents because

the search warrant contained no such time

limitations. (App. N, pp. 3-5). Members of

the IRS and the ICPO's Asset Seizure Unit also

admitted that they "piggy-backed" the federal

"anticipatory search warrant" because they did

not have independent probable cause to obtain

their own search warrants. (App. M, pp. 14,

65-66, 199).

To appreciate just how general, massive,

unrestricted, and illegal the search and

seizure was, one need only review the

inventories reluctantly prepared by the ICPO a

year after the search only after ordered to do

so by Judge Houk. (App. O).

The police seized thousands of documents,

including the corporate records of several

businesses in which Baldori and/or Boyle had

ownership interest and all of Baldori's

13

computer equipment and disks.* Although all

of Baldori's 500 computer disks were seized,

most of which were clearly labelled as

commercial software, attorney-client files,

and law school outlines, the police failed to

ever retain an expert to read the disks, sort

out what may be important to the police, and

return to Baldori and Ms Boyle those documents

and disks important to their livelihood and

personal life.

Particularly outrageous is the theft by

the police of personal and intimate (nude)

photographs and color slides of Ms Boyle,

‘Among the documents seized were

Baldori's canceled checks dating back to

1969, attorney-client material, movie and

concert ticket stubs, cartoons, recipes,

magazines, corporate records of several

businesses, and many other items beyond

the scope of the warrant. Det. Early

testified he seized documents to

determine Baldori's "net worth." (App.

M, pp. 28, 50, 81). Nothing in the

search warrant authorizes the seizure of

such documents and, in fact, Agent Healey

testified that "we weren't looking for

records for net worth." (App. M, p.

257).

14

which she kept in a box under her bed.° The

police entertained themselves with a slide

show of the nude photographs and slides at the

police station. For five months following the

raid, the police engaged in a "conspiracy of

silence" about these thefts and professional

misconduct.® This evolved into a "cover-

°officer Diebolt improperly removed

nude photographs from a prior and

unrelated search warrant scene, for which

he received only a verbal reprimand.

(App. M, pp. 310-311).

fonly after one of the police

officers admitted at his deposition to

being at the slide show was there a

request by Metro Squad command to the

subordinate officers for a return of the

stolen photo,vraphs and slides. Even

then, however, there was no attempt to

investigate the theft, or to discipline

or charge the officers who stole the

photographs and slides. On July 11,

1990, Metro Lt. Whitford, at a staff

meeting, requested that the police

officers return the photographs and

slides with "no questions asked." (App.

P). Lt. Whitford advised the officers

that they could lose court cases such as

this one because of this behavior. (App.

Q).-

OBA ha Re te! ba ee ts Bt

‘Ce |

15

up."’ A token criminal investigation of the

Metro officers was finally by Ingham County

Prosecutor, Donald Martin ("Martin"), and

conducted by Captain Rapp, the executive

director of Metro. Although Judge Houk

ordered that all of the criminal investigation

reports be turned over to undersigned counsel

no later than October 31, 1990, not

surprisingly, the government failed to turn

over the only incriminating report.®

"Although every police officer

deposed testified that they had seen the

photographs and slides of Ms. Boyle at

the police station, not one could

"recall" who stole them, had possession

of them, on whose desks they had seen

them, or who ran the slide projector, and

most could not "recall" the names of any

other officer who was present for the

"stag show." Although Lt. Patrick and

Agent Langkos were identified as being

present at the slide show, both denied

being present. Even two assistant

prosecutors, one who was shown a

photograph and the other who was offered

to be shown a photograph, could not

recall who was involved. (App. R).

*on September 23, 1990, Dep. Tim

Doerr, who was not a Metro Squad officer,

notified Lt. Patrick that Metro Off.

Diebolt came to Doerr's residence and

showed him a box of slides of Ms. Boyle.

16

The basis for the "anticipatory search

warrant" was a "reverse drug transaction" in

which the police used a convicted felon

motivated by a sveetheart plea and sentence

bargain, to "target" and "set-up" Baldori, his

attorney and friend of twenty-three years, by

delivering to him government-owned marijuana.’

The police clearly violated most of the

substantive provisions of their own policies

regarding reverse drug transactions, executing

search warrants, tagging and cataloguing of

evidence, and the use of confidential

0

informants." The blatant violation of their

This information was contained in several

police reports that were withheld from

the defense long after they were

available. (App. S).

%Although Joseph had been told that

he faced up to a forty-year sentence

without this agreement, he received a

sentence of only one-year work release.

Joseph had previously been convicted of a

marijuana felony in Florida and served

his sentence in a Florida penitentiary.

rnis was a joint Metro and FBI

operation governed by the policies and

guidelines of Metro, including the

"Policy Governing 'Reverse Drug

17

Transactions.'" (App. T). The Policy

defines a reverse drug transaction "as

the offering for sale of a controlled

substance by an undercover police officer

in the performance of his/her duty for

the purpose of furthering a criminal

investigation."

The Policy expressly requires that

only experienced police officer from a

departmental work unit may act as a

"seller." In blatant violation of the

Policy, the government used a civilian,

Joseph, to act as the seller. The Policy

requires that every attempt be made to

eliminate the confidential informant from

the actual reverse transaction; however,

no effort was made to eliminate Joseph.

The Policy requires that the drugs

shall never be out of the immediate

control of the undercover officer;

however, the marijuana left the immediate

control of the police from the time it

was placed in the trunk of Joseph's car

until the search warrant was executed 2

1/2 hours later. The contraband was even

out of Joseph's control for 1/2 hour

after he left the Baldori premises.

The Policy requires that the

operation shall be concluded and the

defendant(s) arrested as soon as all of

the elements of the anticipated crime has

been satisfied. The police violated this

policy in at least two respects. First,

all of the elements of the anticipated

and alleged charges were satisfied upon

Joseph delivering the police-owned

marijuana to Baldori's premises, yet,

they waited two hours before executing

the search warrant. Second, the police

18

own policies is further evidence of the

pattern of bad faith, outrageous, and

egregious conduct on the part of the police.

The actions of the police towards their own

confidential informant can be construed as

nothing less than an attempt to obstruct

violated the terms of the anticipatory

search warrant. The Magistrate

specifically "commanded" the police to

execute the search warrant “upon delivery

of the marijuana" to the premises, not

two hours after delivery of the )

marijuana. (App. J). Second, Baldori

was not arrested until a month after the |

raid.

The Policy requires that ali

personnel, including officers from other

agencies, be apprised of the Policy and

agree to comply with it; however, neither

the FBI nor the IRS, nor for that matter,

most of the Metro officers, were apprised

of the Policy.

Ae aerate

The government violated numerous

other policies: 1) No attempt was made

to verify any of the information obtained

from Joseph, a confidential informant and

request approval from the local

prosecutor (App. U); 2) Failure to have a

uniformed officer assigned to the raid

(App. U); and, 3) Failure to properly

tag, catalogue, and inventory property

seized, and otherwise maintain an

appropriate chain of evidence. (App. M,

p. 271, 274-275, 281, 283, 287, 292,

334).

19

justice.'' On January 4, 1991, when

undersigned counsel attempted to depose two

police officers about the theft cf property

from the Baldori premises, they invoked their

Fifth Amendment rights against self-

incrimination. (App. X). On March 19, 1991,

“on October 21, 1990, undersigned

took @ sworn statement of the

confidential informant, Joseph, who

testified that Lt. Whitford informed him

within days following the execution of

the search warrant that the police had

removed Ms. Boyle's personal and intimate

photographs from the premises. Joseph

testified that FBI Agent Langkos showed

him, in the Lansing FBI office, a stack

of what Langkos represented were some of

Ms. Boyle's personal and intimate

photographs. (App. V). Whitford and

Langkos have both denied Joseph's

accusations. If Joseph's testimony is

true, then Whitford and Langkos committed

perjury. Langkos admitted that he was

informed by Whitford of Joseph's

accusations and then went with Whitford

to Grand Rapids specifically to talk to

Joseph about his accusations. Langkos

had no legitimate purpose for seeing

Joseph at that time. Langkos admitted

that, even though he argued with Joseph,

Joseph refused to change his story.

(App. M, pp. 363-366). On December 19,

1990, Judge Houk, issued a Temporary

Restraining Order against, inter alia,

Whitford and Langkos restraining them

from further communication with Joseph.

(App. W).

20

Chief Evidence Officer Daniel Zolnai and

Officer Les Diebolt invoked their Fifth

Amendment rights and refused to testify at the

reopened suppression hearing. (App. N, pp.

16-18) Officer Luciano invoked his Fifth

Amendment right and refused to testify about

the execution of the search warrant and

alleged thefts by the police when called by

Sissler; however, he conveniently testified

when called by the government at the

suppression hearing.

'’Tuciano was a necessary witness in

order for the government to introduce a

videotape of the search into evidence.

Since Luciano denied any knowledge or

culpability regarding the property alleged

to have been stolen from the Baldori

premises, it must be assumed that he was

either lying at the March 19, 1991 hearing

or his earlier refusal to testify when

called by Defendant was an attempt by him

to obstruct Defendant's right to discover

the facts surrounding the execution of the

search warrant.

21

ARGUMENT

I. THE SIXTH CIRCUIT INCORRECTLY FOUND

THAT SISSLER WAS NOT DENIED HIS

SIXTH AMENDMENT RIGHT WHERE POLICE

OFFICER WITNESSES, INCLUDING THE

CHIEF EVIDENCE OFFICER, EXERCISED

THEIR FIFTH AMENDMENT RIGHTS AT A

SUPPRESSION HEARING.

The Sixth Circuit incorrectly found that

Sissler was not denied his Sixth Amendment

right where police officer witnesses,

including the chief evidence officer,

exercised their Fifth Amendment rights at a

Suppression hearing. The district judge

reopened the suppression hearing specifically

to allow inquiry into "the good faith of the

police officers and the question of whether or

not other items beyond the scope of the search

warrant were seized in flagrant disregard for

the limitations set forth in the search

warrant." (App. F, p. 4). Defendant was

denied the right to confront the crucial

witnesses on these issues. The key police

officers who executed the search warrant,

including the chief evidence officer who was

ila

22

responsible for seizing the evidence, invoked

their Fifth Amendment rights and refused to

testify as to the search and seizure of

evidence."

It is not disputed that Sissler has a

Confrontation Clause right without regard to

who calls the witness, Chambers v Mississippi,

401 U.S. 284, 298 (1973), and it cannot be

plausibly maintained that the police officer

witnesses were not witnesses against Sissler.

S~these officers had good reason to

exercise their Fifth Amendment Rights.

That same month criminal charges were

issued against them by the Ingham County

Prosecutor in connection with their

execution of this search warrant. (App.

Y). The facts underlying the criminal

charges against the two officers could be

determinative of the very issues for which

the suppression hearing was reopened. At

issue was the reasonableness and good

faith of the police officers who executed

the search warrant. Without the ability |

to question Officers Zolnai and Diebolt,

Defendant and the district court were |

effectively denied the ability to conduct

a proper fact finding into these issues.

Consequently, the district court

improperly afforded the benefit of any and

all doubt on these issues to the police

officers who had been charged criminally

with illegally executing the search

warrant.

ooo

23

The very evidence seized by these witnesses is

the essence of the government's case against

Sissler.

Of course, the right to confront

and to cross-examine is not

absolute and may, in appropriate

cases, bow to accommodate other

legitimate interests in the

criminal trial process. [citation

omitted.) But its denial or

significant diminution calls into

question the ultimate ‘integrity of

the fact-finding process' and

requires that the competing

interest be closely examined.

[citation omitted. ]

Chambers, at 295.

The U.S. Supreme Court has specifically

held that the fundamental protections of

confrontation and cross-examination are rooted

in the right of an individual to be presented

with the government's evidence and the

opportunity to defend against it. Greene v.

McElroy, 360 U.S. 474, 496 (1959). It also is

well-established that where there is a

conflict between a defendant's Sixth Amendment

right to confrontation and a witness' Fifth

Amendment right to refuse to testify, such a

24

conflict must be resolved in favor of the

defendant because of the inherent danger of

substantial prejudice.

When a witness legitimately invokes

his fifth amendment privilege,

creating a potential conflict with

a defendant's sixth amendment right

to confrontation, the relevant

question on review is "whether

defendant's inability to make the

inquiry creates a substantial

danger of prejudice by depriving

him of the ability to test the

truth of the witness's direct

testimony."

United States v. Kimble, 719 F.2d 1253, 1257

(5th Cir. 1983) (quoting Fountain v. United

States, 384 F.2d 624, 628 (5th Cir. 1967)).

The district court conceded that at least

one of these police officers called by Sissler

played a "crucial role" in the "execution of

the search warrant." (App. C, p. 11). In

“However, the district court

incorrectly stated that only one police

officer invoked his Fifth Amendment

privilege. The record clearly reflects

that two police officers, Chief Evidence

Officer Zolnai and Officer Diebolt, both

invoked their Fifth Amendment rights and

refused to testify at the suppression

hearing. Officer Magnus, who interrogated

Defendant, and Officer Luciano invoked

ee ey

25

a puzzling twist, the court ruled that the

officers' refusal to testify did not violate

Sissler's Sixth Amendment right because

“otherwise, defendants could simply

manufacture violations of the Confrontation

Clause by calling witnesses who they know will

invoke their Fifth Amendment rights and

calling them crucial to their defense." (App.

C, pp- 11-12). Stepping even further afield

of recognized constitutional doctrine, the

court concluded that it was "inappropriate"

and "unethical for the defense to call a

witness it knows will assert a Fifth Amendment

right... .." (gp. C. p. 32).

The district court reversed the

presumption in favor of the right to

confrontation articulated in Kimble, supra.

The witnesses in question are neither ordinary

nor peripheral witnesses. Their testimony

would not have been cumulative nor directed at

their Fifth Amendment rights and refused

to testify at their deposition.

26

ancillary issues. These witnesses are the

very police officers who executed the search

warrant and seized the evidence at issue.

Indeed, one of the police officers who invoked

his Fifth Amendment privilege at the

suppression hearing was the chief evidence

officer, responsible for seizing, tagging,

cataloguing, securing, and maintaining the

evidence, and writing the principal police

report. Officer Diebolt participated in the

search and seizure operation. Officer Magnus

was one of the two police officers who

interrogated Defendant and also assisted in

the execution of the search warrant. Thus,

these witnesses were not, as the district

court intimated, merely "witness[es]

associated with the Government," but they were

essential witnesses Defendant needed for

CURORATE EE AMG the lack of "good faith" in the

execution of the search warrant, and they were

essential witnesses for the Government to

prove its case at trial.

ee eee

_ 27

The 6th Circuit cites Pennsylvania v

Ritchie, 480 U.S. 39, 52 (1987) for the

proposition that the right of confrontation is

a trial right. But the Ritchie court also

said:

It is well settled that the

government has the obligation to

turn over evidence in its

possession that is both favorable

to the accused and material to

quilt or punishment." [citations

omitted].

Ritchie, at 57. Here, the government, by

virtue of its police officer witnesses

refusing to testify, withheld exculpatory

evidence from Sissler.

Relying on United States vy Moore, 954

F.2d 379 381 (6th Cir. 1992) and McCray v

Illinois, 386 U.S. 300, 314 (1967), the 6th

Circuit held that the government need not

produce all witnesses competent to testify,

nor are the government witnesses compelled to

waive testimonial privileges. Moore and

McCray are cases where the defendant attempted

to discover the identification of a

ia

28

confidential informant. That is not the

situation here.

The right to confrontation would be

hollow indeed if the government could nullify

Sissler's Sixth Amendment right by their

police witnesses, who gathered the evidence |

upon which their case is base, hiding behind

the Fifth ‘Amendment. The police officers'

testimony was critical to Sissler's Motion to

Suppress. The district court explained that

the "good faith" of the police officers who

executed the search warrant was the core issue

for determination at the reopened suppression

hearing." The burden of proof shifts to the

government to establish that the police were

entitled to the benefit of the "good faith"

exception once Sissler demonstrates that the

“By issuing the criminal charges

against Zolnai and Diebolt, the Ingham

County Prosecutor and the Magistrate

already determined that there is

“reasonable cause" to believe that these

police officers "wilfully exceeded the

authority granted by the search warrant."

See Mich. Comp. Laws 764.1(1) and Mich.

Comp. Laws 764.1a(1). (App. Z).

29

police exceeded the scope of the search

warrant. The testimony of officers Zolnai and

Diebolt were essential to negate the

government's claim of good faith." With the

officers' testimony, Sissler would have

defeated the government claim of entitlement

to the "good faith" exception and would have

demonstrated that these officers, particularly

the chief evidence officer, acted in bad faith

by committing such crimes as larceny during

the course of the search warrant execution.

It is important to note that Sissler

entered a conditional plea preserving the

pretrial legal issues, which were

inappropriate to bring before a jury.

Therefore, the suppression hearing was

“’Sissler's inability to confront the

chief evidence officer, as well as the

other officers, was especially problematic

since there was absolutely no

documentation identifying which officer

seized any particular item. (App. M, p.

74). Unless an officer actually

"recalled" seizing a particular item, the

district court precluded the defense from

asking questions concerning that item or

why it was seized.

30

Sissler's one opportunity to examine the

relevant police witnesses to establish the

facts necessary for the court to determine the

issue of flagrancy.

When the police invoked their Fifth

Amendment rights, thereby depriving Sissler of

his right to confront, cross-examine, and

satisfy the test for quashing the warrant and

suppressing the evidence, Sissler's

constitutional rights were plainly violated

and the case against him must be dismissed.

When the confrontation clause is violated, the

court must consider whether the error is

harmless beyond a reasonable doubt. Stevens

v. Bordenkircher, 746 F.2d 342, 347 (6th Cir.

1984). Here, as in Stevens, that test cannot

be satisfied.

In our view, failure to permit

cross-examination of a key

government witness concerning bias,

prejudice or motive cannot be

construed reasonably as harmless

error.

Id. A fortiori, when a defendant is denied

the ability to confront and question under

31

oath the police officers who are critical both

to his defense and the government's case, the

case cannot be maintained against that

defendant within the bounds of the

Constitution. See also Davis v Alaska, 415

U.S. 308, 318 (1974) (Denial of "the right of

effective cross-examination . . . ‘would be

constitutional error of the first magnitude

and no amount of showing of want of prejudice

would cure it.'").

II. THE SIXTH CIRCUIT INCORRECTLY FOUND

THAT THE ANTICIPATORY SEARCH

WARRANT SATISFIED BOTH THE SURE

COURSE AND PROBABLE CAUSE STANDARDS

WHERE THE CONTRABAND WAS NOT IN THE

CONTROL OF THE POLICE AND THE

“PROBABLE CAUSE" WAS BASED ON

NUMEROUS CONTINGENCIES.

The Sixth Circuit, based on an inaccurate

assumption, incorrectly found that the

"anticipatory" search warrant satisfied both

the "sure course" and "probable cause"

standards. (App. A, p. 7). The Sixth Circuit

concluded that, "At the time the warrant was

issued, the police controlled the marijuana

that was eventually delivered to Baldori.

32

Joseph, an informant, working for the

government, had arranged to deliver it to

Baldori's home on January 15." (App. A,

p. 7). This conclusion is not true.

The undisputed facts are that Lt.

Whitford attempted to make arrangements with

WEMET, a separate police agency not involved

in this case, to obtain 160 pounds of

marijuana for use in this reverse drug

transaction. However, no marijuana was

obtained from WEMET until three (3) days after

the search warrant was authorized.

Additionally, Metro was only able to obtain

only 88 pounds, not 160 pounds.

The anticipated transaction between

Joseph and Baldori was contingent upon a

number of factors, including, inter alia, 1)

Metro obtaining marijuana from WEMET; 2)

Joseph's continued cooperation; 3) Baldori

agreeing to meet with Joseph; 4) Sissler

agreeing to purchase the marijuana; and 5)

Sissler's ability to raise the money. If each

ee ao en ee rrr ae

33

of these contingencies were not met, then the

anticipated transaction would not occur.

There was no probable cause, just speculation,

that the anticipated transaction would occur.

The prevailing view is that contraband

must be "on a sure course to its destination."

United States v Garcia, 882 F.2d 699 (2d

Cir.), cert. denied, 493 U.S. 943 (1989). The

Sixth Circuit incorrectly relies on Garcia and

United States v Lowe, 575 F.2d 1193 (6th

Cir.), a2. denied, 439 U.S. 869 (1978) fora

probable cause standard to review an

"anticipatory" search warrant. "The

determining factor in Garcia, Dornhoffer, and

the other cases cited therein, is whether the

contraband "is on a sure course to its

destination. 882 F.2d at 702; 859 F.2d at

1198; (citations omitted)." United States v

Upton, 763 F.Supp. 232, 239 (S.D. Ohio 1991).

In Garcia, the search warrant was

obtained after 1) the couriers agreed to

cooperate, 2) the contraband was in their

34

possession, and 3) specific arrangements were

made with defendant for delivery. There were

no contingencies other than obtaining the

search warrant. Lowe, is a "mail" case, and,

therefore, probable cause was based on the

fact that the package was "on a sure course to

its destination."

The Sixth Circuit incorrectly relies on

United States v Hendricks, 743 F.2d 653 (9th

Cir. 1984), cert. denied, 470 U.S. 1006

(1985). The Hendricks' court also required

probable cause that the contraband be on a

sure course to its destination. Id, at 655.

Where there are contingencies left to chance

or the discretion of the police, no probable

cause exists. In Hendricks, no arrangements

had yet been made for delivery of the

contraband to the defendant; in contrast to

Garcia, where arrangements had been made prior

to obtaining the search warrant. Here, there

were, at most, only tentative arrangements

dependent on a variety of contingencies, which

aS

do not add up to probable cause; moreover, the

contraband was not a sure course to its

destination since Metro did not even have

possession of the marijuana at the time the

search warrant was issued.

III. THE SIXTH CIRCUIT, FINDING THAT

SISSLER HAS STANDING AND THAT THE

POLICE ENGAGED IN EGREGIOUS POLICE

MISCONDUCT, IMPROPERLY FAILED TO

QUASH THE SEARCH AND SUPPRESS THE

EVIDENCE.

The Sixth Circuit side stepped

established precedent in order to uphold this

search. A search warrant executed in flagrant

disregard of the limitations of the search

warrant requires suppression of all of the

evidence. United States v Henson, 848 F.2d

1374, 1383 (6th Cir. 1988), cert. denied, 109

S.Ct. 784 (1989); United States v Medlin, 842

“F.2d 1194, 1199 (10th Cir. 1988) ("Medlin

ii"); United States v Lambert, 771 F.2d 83,

cert. denied, 474 U.S. 1034, (6th Cir. 1985);

United States vy Heldt, 688 F.2d 1238, 1239

(D.C. Cir. 1981), cert. denied sub non.

Hubbard v United States, 456 U.S. 926 (1982);

36

and United States v Rettig, 589 F.2d 418, 423

(9th Cir. 1978).

When law enforcement officers

grossly exceed the scope of a

thereby requiring

all evidence seized under that

warrant.

The government overlooks the

fact that the objective

reasonableness exception to

the exclusionary rule set

forth in Leon is available

only in those cases in which

the officers act objectively

reasonable in executing a

search warrant which is

subsequently found to be

invalid.

Medlin II, at 1199 (emphasis added).

In finding that the police seized

numerous items outside the scope of the search

warrant, the Sixth Circuit explained that "We

agree that the record establishes that some of

the officers apparently engaged in egregious

misconduct while searching the Baldori home."

(App. A, p. 15) (emphasis added). The Sixth

Circuit also found, without expressly stating,

37

that the police acted in "flagrant disregard"

of the limiting terms of the search warrant:

The search warrant return indicates

that the officers seized three

computers, two printers, a modem, a

fax machine, and several disk

drives. The language of the search

Warrant does not appear to support

the seizure of any of these items.

Second, the officers seized

$1,030 in Canadian currency.

- - »« The warrant authorized

the seizure of only U.S.

currency.

x ke

Detective Early testified that

most of the records he seized,

some dating back to 1969, were

taken in an attempt to

establish Baldori's net worth.

The warrant did authorize

seizure of records showing

purchases made with marijuana

proceeds, but did not

authorize the officers to

seize all of Baldori's

financial records to establish

his net worth. The

intentional seizure of those

Gocuments goes far beyond the

terms of the warrant.

Fourth, the officers seized

more than 30 intimate

photographs and slides of

Boyle. The government

warrant. * * * Two officers

38

have been charged in state

court with illegally taking

items during the search.

(App. A, pp. 12-15) (emphasis added).

Clearly, Sissler, as an overnight guest,

has an expectation of privacy, and, therefore,

the same Fourth Amendment protections as his

host in the Baldori home. Minnesota v Olson,

495 U.S. 91 (1990); United States v Osorio,

949 F.2a 38, 41 (2d Cir. 1991). The Sixth

Circuit attempts to limit the scope of

Sissler's "standing" to challenge the search.

Unlike the defendants in Medlin and

Rettig, however, Sissler's rights

were not violated by the

misconduct. All of the property

seized from him was within the

scope of the warrant. Thus, even

We believe that deterrence

would not be served by allowing

Sissler to benefit from the alleged

violation of Baldori's and boyle's

Fourth Amendment rights. Cf.

Medlin, 842 F.2d at 1200.

(App. A, p. 15) (emphasis added).

Sissler either has or does not have

39

standing, but not partial standing. Osorio

does not distinguish, as the Sixth Circuit

attempts to do, between property belonging to

the defendant's host or the defendant. In

Osorio, defendant Castro was the overnight

guest of his host, Osorio. Castro

successfully challenged the search of Osorio's

premises. In suppressing the search, the 2d

Circuit found that, "Castro concedes that he

had no property or possessory interest in the

items seized." Osorio, at 40 (emphasis

added). The court's determination was based

on expectation of privacy, and found that

where a defendant is an overnight guest, that

defendant does have an expectation of privacy,

and, therefore, standing to challenge the

search, not merely part of the search.

Osorio, at 42.

Additionally, the Sixth Circuit's attempt

to distinguish Medlin and Rettig, both of

which suppressed all the evidence based on a

search exceeding the intended scope of the

40

warrant, are misnlaced. In Rettig, the police

obtained a state search warrant based on an

affidavit that failed to disclose the earlier

denial of a federal search warrant and failed

to disclose the real purpose of the search

warrant. Rettig, at 421. The function of the

judge reviewing an application and issuing a

search warrant is lost if the police fail to

disclose all the material facts.

By failing to advise the judge of

all the material facts, including

the purpose of the search and its

intended scope, the officers

deprived him of the opportunity to

exercise meaningful supervision

over their conduct and to define

the proper limits of the warrant.

Rettig, at 422.

A judicial officer cannot perform

the function of issuing a warrant

particularly describing the places

to be searched and the things to be

seized, and of supervising the

proper return of such process,

where the police fail to disclose

an intent to conduct a search the

purposes and dimensions of which

are beyond taat set forth in the

affidavits.

Rettig, at 423.

)

41

Here, the police did not disclose all the

material facts or the real purpose of the

search and its intended scope to the

magistrate issuing this search warrant,

including, inter alia, that the local Asset

Seizure Unit and the I.R.S. intended to

"piggy-back" this federal search warrant in

order to search for and seize property for

which they had no probable cause and could not

obtain their own search warrant. The Sixth

Circuit correctly found that the execution of

this search warrant intentionally went far

beyond the scope of the search warrant.

We find the record establishes that

the agents did not confine their

search in good faith to the objects

of the warrant, and that while

purporting to execute it, they

substantially exceeded any

reasonable interpretation of its

provisions. As interpreted and

executed by the agents, this

warrant became an instrument for

conducting a general search.

Rettig, at 423. The police in this case

obtained a search warrant from the federal

magistrate intentionally and deceptively

42

failing to disclose their intended and scope

and purpose. The police, then used the search

warrant merely as a key to enter the Baldori

premises and proceed to conduct a general

search.

The Medlin court was clear that the

Federal authorities had the obligation of

monitoring and supervising the activities of

the invited agencies during the execution of

the federal search warrant.

The ATF agents could have decided

not to bring Deputy Carter along as

an assistant on their search, but

having exercised their prerogative

to do so the ATF agents could have,

Medlin, at 1200 (emphasis added). As a result

of this search, which flagrantly exceeded the

scope of the federal warrant, requires the

suppression of all evidence seized under the

warrant.

- « « even evidence which is

properly

exhibit "flagrant disregard" for

its terms.

x * *

When law enforcement officers

grossly exceed the scope of a

search warrant in seizing

property, the particularity

requirement is undermined and

Medlin, at 1999 (emphasis added).

The Sixth Circuit incorrectly found that

Sissler's Fourth Amendment rights were not

violated since his property was within the

scope of the warrant. Sissler's standing

entitled him to challenge the search. Since

the police failed to disclose material facts

and the intended scope and purpose of the

search, and since the police intentionally

seized property far beyond the scope of the

warrant, all the property must be suppressed.

Unfortunately, the ATF agents'

failure to prevent the flagrant

disregard for the terms of their

search warrant, a failure for which

they are accountable, renders all

the fruits of the firearms search

44

inadmissible in evidence against

Medlin.

Medlin at 1200 (emphasis added).

Iv. THE SIXTH CIRCUIT, BASED ON AN

INCORRECT ASSUMPTION OF FACTS,

ERRED IN FINDING THAT SISSLER'S

FIFTH AMENDMENT RIGHTS WERE NOT

VIOLATED

The Sixth Circuit incorrectly found that

Sissler ". . . concedes * * * that he agreed

to talk with the officers before he made the

incriminating statements." (App. A, p. 15).

The circumstances of Sissler's interrogation

were unique. Sissler was interrogated in the

recording studio while Baldori, his friend and

attorney, was being interrogated a few feet

away in a glass enclosed, sound-proof control

booth within Sissler's view. Sissler was

advised of his Miranda rights while observing

his attorney talking to the police, not

knowing that Baldori was intentionally not

advised of his Miranda rights and was refused

his repeated requests to call an attorney.

Although the case of United States v.

Jones, 641 F.2d 425 (6th Cir. 1981), involved

45

the issue of a valid consent to search, the

Sixth Circuit focused on whether "the consent

was uncontaminated by duress, coercion, or

trickery." Id, at 429. The court held that

“the only credible inference [is that the

consent to search] was granted in submission

to authority rather than as an understanding

and intentional waiver of a constitutional

right." Id. The court noted that there were

several "police officers at the scene, all of

them armed, two with shotguns drawn and others

with pistols drawn." Id. Similarly, in

United States v. Talkington, 843 F.2d 1041

(7th Cir. 1988), another case involving a

consensual search, the court noted that, as in

the instant case, "({t]jhe district court

apparently did not focus on many potentially

coercive factors." Id. Although the issue

before this Court is the consent to waive the

right to counsel and to remain silent, not to

a search, the reasoning should be the same.

The coercive factors imposed on Sissler were,

46

essentially, ignored by the district court and

the Sixth Circuit.

Sissler maintains that, prior to waiving

his Miranda rights, he inquired whether he

should have an attorney. The police responded

by indicating that would never have another

opportunity to help himself as he did at that

moment, in an effort to trick him into waiving

his rights. Several courts have held that

Similar inquiries are an equivocal assertion

of a defendant's right to cut-off questioning

and have counsel.

The Eleventh Circuit held in Towne v.

Dugger, 899 F.2d 1104 (1990) held that the

defendant's question to the officer, “Officer,

what do you think about whether I should get a

lawyer?" was an equivocal request for an

attorney and the officers had a duty to

Clarify that issue prior to continuing ques-

tioning. In Towne, the defendant stated he

made a request for an attorney, but was told

by the officers that if he went that route,

i eeindinenananiaiiaaieaanaaieaaea aia

47

"he would throw the book at him." Towne, at

1105.

In Owen v. Alabama, 849 F.2d 536 (11th

Circuit 1988), the court held that "I think

I'll let y'all appoint me one" was an

equivocal request for counsel. In Owen V.

State, So. 2d; 46 Cr.L. 1536 (1990), the

defendant was freely confessing to several

murders. In response to a question later in

the interview, the defendant stated, "I'd

rather not talk about it." The officers

merely continued questioning as to other

topics. The court held that the defendant

made at least an equivocal assertion of his

right to cut-off questioning and advised:

Instead of exploring whether

this was an invocation of the

right to remain silent or

merely a desire not to talk

about the particular detail,

the police urged him to clear

matters up .. . It was error

for the police to urge

appellant to continue his

statement.

The concurring opinion goes on to state:

48

Later, in Michigan v. Mosley,

423 U.S. 96, 104 (1975), the

Court stated that an

individual's right to cut off

questioning must be "scrupu-

lously honored". Here, it was

not. (Owen, 46 Cr.L. at 1537]

These statements under the reasoning of

the 11th Circuit in Towne, supra, and the

Florida Supreme Court in Owen, supra, and

Michigan v. Mosley, su , were equivocal

assertions of the right to an attorney and

right to silence. Sissler's statements,

therefore, should be suppressed and ruled

inadmissible.

REASONS FOR GRANTING THE WRIT

This Court should grant Certiorari in

order to determine an important question of

law as to whether a defendant's Sixth

Amendment right should prevail over the Fifth

Amendment rights of the chief evidence officer

and other police witnesses at a pretrial

suppression hearing.

This Court should also grant Certiorari

to determine an important question of law as

49

to whether an "anticipatory" search warrant is

valid where the contraband that is neither "on

a sure course to its destination " or even in

the control of the police involved, and where

the probable cause is based on a series of

contingencies outside the control of the

police.

This Court should also grant Certiorari

to determine an important question of law as

to whether the evidence seized as a result of

a search executed in flagrant and egregious

disregard of the limiting terms of the federal

warrant should be suppressed, especially where

the police failed to disclose material facts

and their intended scope and purpose of the

search to the issuing magistrate.

This Court should also grant Certiorari

to determine an important question of law as

to whether a defendant's Fifth Amendment

Rights are violated when (s)he is interrogated

within view of his co-defendant attorney

talking to the police not knowing that the

50

police intentionally failed to advise him of

his Miranda rights, and where the police

response to a defendant's inquiry of whether

(s)he should have an attorney was that (s)he

would never be in a better position to help

yourself.

CONCLUSION

It is sometimes said that error

"crept" into the trial of a

lawsuit. Not so in the case at

bar. It marched in like an army,

with banners, and trumpets.

State v. Tolson, 248 Iowa 733, 82 N.W.2d 105

(1957).

The record in this case presents a full

spectrum of police abuse and misconduct and

implicates virtually every principle

underlying the Fourth, Fifth, and Sixth

Amendments. If ever a case cried out for a

judicial statement to the police that flagrant

and egregious disregard for a search warrant's

limitations will not be excused, this is that

case.!”

Dated ‘Cfeyfyy

i ai

51

WHEREFORE, for the above and foregoing

reasons, Petitioner respectfully requests that

this Honorable Court issue its writ of

Certiorari to the United States Court of

Appeals for the Sixth Circuit.

Respectfully submitted,

REID AND REID

Attorneys for Petitioner

SZ

Stuart R. Sha P25599)

One businesg/x trade Center

200 Washington Square, North

Lansing, Michigan 48933-1384

(517) 487-6566

’ As Justice Holmes explained in

, 272 U.S. 530, 532

(1926), "[{i]f the search and seizure are

unlawful as invading personal rights

secured by the Constitution, those rights

would be infringed yet further if the

evidence were allowed to be used."