Petition for Writ of Certiorari — Gibson v. Louisiana

© TL MD

00 573 SEP 1 42000

No. AKFICL U

In the

Supreme Court of the United States

ROLAND GIBSON, SR., JESSE GIBSON,

ROLAND GIBSON, JR. and DENNIS GIBSON

PETITIONERS

THE CITY OF NEW ORLEANS and LLOYD WEST

RESPONDENTS

ON PETITION FOR A WRIT OF CERTIORARI TO THE

LOUISIANA STATE SUPREME COURT

PETITION FOR WRIT CERTIORARI

Catrice A. Johnson Matthew B. Collins, Jr.

LSBA # 24475 LSBA # 4310 - Trial Counsel

636 North Broad Street COLLINS & MARSHALL

New Orleans, LA 70119 234 Loyola Avenue - Suite 312

(504) 822-0360 New Orleans, LA 70112

(504) 525-2255

Dianne J. Marshall

LSBA # 8441

COLLINS & MARSHALL

234 Loyola Avenue - Suite 312

New Orleans, LA 70112

(504) 525-2255

Attorneys for Petitioners,

Roland Gibson, Sr., Jesse Gibson,

Roland Gibson, Jr. and Dennis Gibson

Riverside Printing, L.L.C., 4939 Tchoupitoulas, N. O., LA 70115, (504) 897-5000

QUESTIONS PRESENTED FOR REVIEW

1. Does a warrantless arrest by police of a citizen,

while in his home after a fruitless search, pursuant to uncor-

roborated information provided by an arrestee, who was a

convicted felon, known by police to be unreliable, violate the

provisions of the Fourth Amendment where the search war-

rant affidavit was deceptive, in that it contained deliberate

lies by the informant, along with intentional misstatements

and omissions including omissions regarding the informant's

veracity, credibility and basis of knowledge.

2. When a citizen has both state and federal remedies

for violations of his Fourth and Fourteenth Amendment

rights, can that state's highest court, on review, create post-

trial, an arbitrary, evidentiary rule, solely applicable to that

case, that by its effect, retroactively revokes the state reme-

dy, thereby effectively denying that citizen his federal reme-

dy and the equal protection to which he is entitled under the

Fourteenth Amendment.

3. Is a citizen's Fourth Amendment right to be free

from unlawful arrest violated when he is arrested in his home

without a warrant by police officers whose conduct when

judged by an objective standard would be considered, at a

minimum, grossly negligent and most probable as evidenc-

ing a reckless indifference to the individual's right?

4. Is a citizen deprived of liberty within the meaning

of the Due Process Clause of the Fourteenth Amendment

when he is convicted and serves twenty-five years of a life

sentence as a result of the police officers’ misconduct in con-

il

nection with the arrest and the prosecution's failure to dis-

close exculpatory material in the state's file?

5. Can a state's highest court, on review, post-trial,

effectively eviscerate a person's state tort-law remedy so as

to deny that individual adequate redress for injury to which

he is entitled under the Fourteenth Amendment?

ili

LIST OF ALL PARTIES

¥ The City of New Orleans

Represented by: Mavis Early

Franz L. Zibilich

Annabelle H. Walker

City of New Orleans

City Hall

1300 Perdido Street

Room SEO1

New Orleans, Louisiana 70112

2. Lloyd West

Represented by: Terry E. Allbritton

Tulane University Law Center

Appellate Advocacy Program

6939 Freret Street

New Orleans, Louisiana 70118

* Roland Gibson, Sr., Jesse Gibson, Roland Gibson, Jr.

and Dennis Gibson

Represented by: Matthew B. Collins, Jr.

Counsel of Record

Dianne J. Marshall

COLLINS & MARSHALL

234 Loyola Avenue - Suite 312

New Orleans, Louisiana 70112

iV

Catrice A. Johnson

636 North Broad Street

New Orleans, Louisiana 70119

All parties have been served pursuant to Suprerne Court Rule

29.3.

TABLE OF CONTENTS

I. QUESTIONS PRESENTED FOR REVIEW............ i

Il. Se SO SAGE ee Cictiteientirdicinctheciitiinammensslacs iil

SA Or Ge siktiren Vv

IV. TABLE OF AUTHORITIES. .ccccecissessssconcscsccsseses vill

Vv CF IEE NT hihi diehnsnioginlabitchtcbndasnbiead iinicilbanien l

VI PENI Kiri. schcininiiatieiiacipibiicinideceRE iaieiaccten l

VII. CONSTITUTIONAL, PROVISION AND

STATUTE INVOLVED IN THE CASE.................. 2

Vill. STATEMENT OF THE CASE q.....cccccccccsccssccnscesores 3

in PER MN ica enstsssssconnessntnnsrensccars 5

X. REASONS FOR ALLOWANCE

A, WUE IIE Sadi csanivonald hidiatatpdelicuibilaientuiinuascsaicosed 8

THE QUESTIONS ARE OF EXTRA-

ORDINARY NATIONAL IMPORTANCE

THAT NEED TO BE ADDRESSED IF

CONSTITUTIONAL GOVERNMENT IS

Fe EE whdicanacdhetaaiplnithistangncivnet 8

vi

Page

B. SUMMARY OF ARGUMENT.........0...0.0. 10

C. THE LOUISIANA STATE SUPREME

COURT REJECTED OUTRIGHT THIS

COURT'S BASIC TEST FOR DETER-

MINING THE SCOPE OF THE

PI TRIITES siciveivncsstenncsicleircesanniciadnceeniinins 13

D. PROBABLE CAUSE TO ARREST ........0.0.00000... 18

E. THE LOUISIANA STATE SUPREME

COURT DENIED PETITIONER'S

FEDERAL AND STATE REMEDIES

FOR VIOLATIONS OF HIS FOURTH

AND FOURTEENTH AMENDMENT

CONSTITUTIONAL RIGHTS WITH AN

ARBITRARY EVIDENTIARY RULING........... 20

X. CA RAPIIITE sscsisnonnscsanscssantanpemisnciaiuaneleinie 24

XI. APPENDIX

A. Gibson v. State, 758 So. 2d 782 (LA

PONG 1G), PO ircccnanpinanaiaials A-l

B. Gibson v. State, 731 So. 2d 379 (LA

Pua: A, Wiss cciccsstncinearnsnadionincsn A-29

A Trial Court's Judgment............... eee A-45

Vii

Trial Court's Reasons for Judgment.......A-49

I OI icici aiciccde cnctaiian A-65

Court's Jury's Charges........................000. A-68

gE RT ee RRR eT A-85

Search warrant directed at Roland

| ERIC eA OES eT A-119

Search warrant directed at

EER ey eae eRe A-128

viii

TABLE OF AUTHORITIES

CASES Page

Aguilar v. Texas, 378 U.S. 108 (1964)... eee eeeeeeeeeeee 13

Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383,

FE ee OEE ic iadcknsapiciniansatetiaissitinceniiian 11,15

Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223 - 225, 226,

5S Re BOE CE IPOD sti rimcsniscsinscenrarcsicmnnets 10,17

Bennett v. City of Grand Prairie, Texas, 883 F.2d 400

Ce SI icitiacha hich asecleliphciens dati 11,15

Borsky-v. Board of Regents of New York, 347 US.

442, 98 L.Ed. 829, 74 S.Ct. 650 (1954) ..00. 23

Boykin v. Alabama, 395 U.S. 238, 241 - 242 (1969) ........... l

Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194,

Be Ee ED aiid cha ne inseticgscennbenines 21

Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674,

FF Mees TOE CTI Vciahcidiictidixtaiichinnsacinaceashinasia 10,14

Gibson v. State, 731 So. 2d 379 (LA App. 4th Cir.

1994), writ denied, 758 So. 2d 782 (LA

8 SAGE irene ern OF eer enn: 2

Grannis v. Ordean, 234 U.S. 385, 345 S-Ct. 779,

Se i Be Ce icin deacknieniscctegaeteealandens 23

ix

CASE Page

Hill v. California, 401 U.S. 797, 804, 91 S.Ct. 1106,

L111, 28 L.Ed.2d 484 (1971) wn. 17

Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317,

16 L.EB6.2d 527 (1983) ........<.0.0¢.. 10,13,16,17,18,19

Johnson v. United States, 333 U.S. 10 (1948) ccc. 20

Jones v. United States, 362 U.S. 257, 271, 80

S.Ct. 725., 736, 4 L.Ed.2d 697 (1960) ............ 16,17

Knapper v. Connick, 681 So. 2d 944 (LA 1996).........0.00002- 6

Kurtz v. Moffitt, 115 U.S. 487, 6 S.Ct. 148,

Oe Ga I I inchs adic bacitilsadetaietoeres 11,18

Manhattan Life Insurance Company v. Cohen, 234

ae ey Pe Usdin tit hi in ei sida, |

Morin v. Caire, 77 F. 3d 116 (Sth Cir. 1996) 2000.0... 19

New York & Queens Gas Company v. McCall,

245 U.S. 345, 38 S.Ct. 122, 62 L.Ed. 337

i hadeiradinnleacebinita teiidpuabtbadeauileaaisichsibcsainioasis 23

Oretga v. Christian, 85 F. 3d 1521, 1524 (11th

i eas 17

Payton v. New York, 445 U.S. 573, 591,

100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) ....... 13,18,20

CASE Page

Provident Savings and Life Assurance Society

v. Kentucky, 239 U.S. 103, 36 S.Ct. 34,

I EID cans sieosancaeessntinnonscensnesasencs 23

Raley v. Ohio, 360 U.S. 423, 436 - 437 (1959) ....... l

Spinelli v. United States, 393 U.S. 410 (1969) ............. 13

State of Louisiana v. Roland Gibson, 27\

Be NE IE CI ieconsstnasietnacesarentesosssnsinianosnenness 5

Terry v. Ohio, 88 S.Ct. 1868, 392 U.S. 120 (1960) ........... 13

United States v. Collins, 549 F.2d 557, 561 (8th Cir.

1977), cert. denied, 431 U.S. 940, 97 S.Ct.

, ee ER } FA. 2g , Perrone 15

United States v. Harris, 403 U.S. 573, 29 L.Ed.2d 723,

.

Pe SA SOOO CHE ED seseiseincsnntintniinientinaininan 13,15,17

United States v. House, 604 F.2d 113 5,

eg es ee Mae UU seieiiieadianieiinthinininndnsiiansees 15

United States v. Jackson, 818 F.2d 345 (Sth Cir. 1987) .....17

United States v. Lewis, 425 F.Supp. 1166, 1173

as nN TUUPET Diaciisccsiaceintnchannesciinenntnientiibinbhssenitanbnasteie 15

United States v. Magluta, 44 F.3d 1530 (11th Cir. 1995)..17

Xl

CASE Page

United States v. Park, 531 F.2d 754, 758 -759 (Sth

a WU iiciialiiinlasabaliitctdbnia ictal iat a on 15

Willis v. Jordan, 20 R.1. 630, 41 ATL 233 (1898)........0.0000. 10

CONSTITUTIONAL PROVISIONS,

STATUTES AND RULES

United States Constitution, Amendment 4 .................... 2,7,8

United States Constitution, Amendment 14................... 2,7,8

28 U.S.C.A. section 125 7(a) .........iccccccccccsccecsescecscocscsssssccess 2

ee Sana: UU BI a inskinsinsivssinisestnatnnnatinniiniaaiiasiie 21

Or I 2

Louisiana Civil Code Article 2315........ccccccccccccccccccceecceceees 21

PETITION FOR WRIT OF CERTIORARI

Petitioners, Roland Gibson, Sr., Jesse Gibson,

Roland Gibson, Jr. and Dennis Gibson respectfully petition

this Court for a writ of certiorari to review the judgment of

the Louisiana State Supreme Court which disposed of peti-

tioners' Fourth and Fourteenth Amendment claims on the

merits. A ruling on the merits of federal questions by the

highest state court leaves the federal questions open to

review by this Court.!

V.

OPINION BELOW

The Louisiana State Supreme Court decided this case

on April 11, 2000. An Application for Rehearing was filed on

April 13, 2000. The Application for Rehearing was denied on

June 16, 2000. The opinion of the Louisiana State Supreme

Court of April 11, 2000 and the per curiam opinion dated

June 16, 2000 are reported at 758 So. 2d 782 (LA 2000). The

opinions of the Louisiana State Supreme Court and the

Louisiana Fourth Circuit Court of Appeals are reprinted as

Appendix A and Appendix B, respectively.

VI.

STATEMENT OF JURISDICTION

The Gibsons seek review of the judgment of the

Louisiana State Supreme Court issued on April 11, 2000

1 Manhattan Life Insurance Company v. Cohen, 234 U.S. 123, 134

(1914); Raley v. Ohio, 360 U.S. 423, 436 - 437 (1959); Boykin v.

Alabama, 395 U.S. 238, 241 - 242 (1969).

2

and their denial of rehearing on June 16, 2000.2

This Court has jurisdiction under 28 U.S.C.A. section

1257 (a). This petition was filed within ninety days of the |

date of the denial of petitioners' Application for Rehearing

and thus, timely.3

VIL.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED IN THIS CASE

The following constitutional provisions and statutes are

involved in this case:

United States Constitution, Fourth and Fourteenth

Amendments

The Fourth Amendment to the United States Constitution

provides in pertinent part:

The right of the people to be secure in their person, hous-

es, papers and effects, against unreasonable searches and

seizures, shall not be violated ...

The Fourteenth Amendment to the United States

Constitution provides in pertinent part:

[nJor shall any state deprive any person of life, liberty or

property without due process of law, nor deny any person

within its Jurisdiction the equal protection of the laws.

2 See Appendix A.

3 Supreme Court Rule 13. 1.

Ee TR eM

3

VII.

STATEMENT OF THE CASE

At approximately 8:30 o'clock p.m. on December 30,

1967, Charles Reinecke, Jr., a taxi driver, was killed with a

.22 caliber weapon during an armed robbery. A fingerprint

which was lifted from one of the back windows of the cab

was later traced to Lloyd West. West's fingerprints were on

file because he had prior criminal convictions for burglary,

assault and battery. Also, during a previous arrest West had

been charged with illegal possession of a .22 caliber weapon.

West was arrested on January 29, 1968 and charged

with a crime that was unrelated to the Reinecke murder. He

was brought in for questioning about the Reinecke murder on

March 27, 1968, approximately three months after the mur-

der. He first denied any knowledge of the murder and gave

the police two individuals with whom he claimed to have

been at the time of the murder. Those individuals were ques-

tioned by the police and denied being with West. West next

gave the police a third individual as an alibi witness, Thomas

Crayton, who also denied being with West at the time of the

murder. According to the police, Crayton informed them that

on December 29, 1967 West and an AWOL soldier named

"Roland" had spent the night at his home. Crayton stated that

he left West and "Roland" at his home before noon, on

December 30, 1967, approximately nine hours before the

crime. The police contacted the Army and confirmed that as

of 7:00 o'clock a.m. on December 30, 1967, a soldier named

Roland Gibson, Sr. was AWOL from

4

his company at Fort Campbell, Kentucky and could have

been missing for forty-eight (48) hours .4

West was interviewed a third time and confronted by

the police with the discrepancies in his two earlier state-

ments. At this point, he again changed his story and claimed

that he was with his mother at the time of the murder. The

police reported that when Mrs. West was summoned to the

police station, she denied being with her son at the time of

the murder and told them that he was lying. The police then

asked West to submit to a polygraph test which he failed. On

March 29, 1968, after failing the polygraph, according to the

police, West admitted he was at the scene of the Reinecke

murder and named Roland Gibson, Sr. as the shooter.

rn

Based on West's alleged confession, the police

obtained a search warrant for Gibson's residence. The search

was conducted, however, the alleged murder weapon was not

discovered.5 Although the search of Gibson's home produced

no incriminating evidence, he was arrested in his home with-

Out an arrest warrant more than two hours after the fruitless

search.

Ironically, on March 30, 1968 the police obtained a

search warrant for West's residence because, following the

fruitless search of Gibson's home, West confessed that the

murder weapon, as stated in the probable cause affidavit to

obtain the search warrant for Gibson's home was, all along,

at his residence under his mattress.

4 See Appendix F.

5 See Appendix G.

aE TTC ENE |

5

On April 4, 1968 West and Gibson were jointly

indicted by a Grand Jury for first degree murder. On

November 21, 1968 Gibson was found guilty as charged

with a recommended life sentence and on November 25,

1968 the Court sentenced Gibson to serve the balance of his

natural life at hard labor in the Louisiana State Penitentiary

at Angola. On November 27, 1968 West withdrew his plea of

not guilty and entered a plea of guilty to the charge of first

degree murder without capital punishment. The State cf

Louisiana accepted West's guilty plea and he was sentenced

to serve the balance of his natural life at hard labor in the

Louisiana State Penitentiary at Angola.

Gibson was granted a new trial on December 18,

1993. On March 31, 1993, the State of Louisiana entered a

Nolle Prosequi in the matter State of Louisiana v. Roland

Gibson.®

IX.

PROCEEDINGS BELOW

The instant lawsuit was filed in the Civil District

Court for the Parish of Orleans on March 30, 1993 against

the City of New Orleans, Lloyd West and the Orleans Parish

District Attorney's Office seeking damages for malicious

prosecution, false imprisonment and intentional, - reckless

and inexcusable indifference to the constitutional rights of

6 271 So. 2d 868 (LA 1973).

petitioner, Roland Gibson, Sr.. The Orleans Parish District

Attorney's Office was voluntarily dismissed from this matter

after the Louisiana State Supreme Court held in another case

that the office enjoyed absolute immunity.”

A bifurcated trial was held on January 29 and 30,

1998 and on February 2, 1998. On February 2, 1998 the jury

returned a unanimous verdict in favor of the Gibson family

and against Lloyd West which found West twenty-five per-

cent at fault and the City of New Orleans seventy-five per-

cent at fault for causing Mr. Gibson's false arrest, malicious

_prosecution and time served in prison. On February 9, 1998

the trial court rendered its verdict in favor of the Gibson fam-

ily and against the City of New Orleans finding the City

ninety percent at fault for the deliberate actions of the police

in causing Mr. Gibson's false arrest, malicious prosecution

and time served in jail. The trial court found West only ten

percent at fault.

On February 28, 1998 the Louisiana Fourth Circuit

Court of Appeals amended the trial court's judgment by

reducing the ninety percent assessment of fault against the

City of New Orleans to forty-five percent. The Court then

assigned the forty-five percent reduction to the non-party,

immune, defendant, the Orleans Parish District Attorney's

office. Mr. West's assessment of fault remained at ten per-

cent.9

7 Knapper v. Connick, 681 So. 2d 944 (LA 1996).

8 See Appendix C.

9 See Appendix B.

7

On March 4, 1999 the City of New Orleans filed an

Application for Rehearing with the Louisiana Fourth Circuit

Court of Appeals. On May 14, 1999 the Louisiana Fourth

Circuit Court of Appeals denied the City's Application for

Rehearing. Mr. West did not file an Application for

Rehearing, nor did he file an Application for Supervisory

Review with the Louisiana State Supreme Court. On June

14, 1999 the City of New Orleans, filed an Application for

Supervisory Review with the Louisiana State Supreme

Court. The Louisiana State Supreme Court granted the City's

Writ Application and on April 11, 2000 reversed the trial

court's judgment in its entirety.

On April 13, 2000 the Gibsons filed an Application

for Rehearing asserting, inter alia, that the Louisiana State

Supreme Court had taken various decisions of the federal

appellate courts and this Court's decisions out of their prop-

er context and decided significant federal questions regard-

ing the Fourth and Fourteenth Amendments to the United

States Constitution in ways that directly conflicted with

those federal decisions. Further, the Gibson's asserted that

the Court was not following its own evidentiary rules in not

permitting the trier of fact to determine, based on her own

observation, whether to believe testimony offered before her

in the 1998 civil trial rather than a confession implicating

petitioner which was so suspect that a criminal court judge in

1993 granted petitioner a new trial which resulted in the later

dismissal of the charges. On June 16, 2000 the Louisiana

State Supreme Court denied rehearing in a per curiam opin-

ion, holding that the trial judge was manifestly erroneous in

crediting West's 1993 recantation of his 1968

8

criminal trial testimony.!® The trial judges's statement in her

Reasons for Judgment that based on personal observations in

the 1998 civil trial she found his recantation of his earlier tes-

timony and his allegations of beatings "very credible". At no

point in her Reasons for Judgment, did she indicate that she

credited West's 1993 sworn recantation at the post conviction

relief hearing of his 1968 trial testimony.!! The Louisiana

State Supreme Court ignored West's 1998, uncontroverted

civil trial testimony which the trial court held was "very

credible”. !2

X.

REASONS FOR ALLOWANCE OF THE WRIT

A. THE QUESTIONS PRESENTED ARE OF

EXTRAORDINARY NATIONAL IMPOR-

TANCE THAT NEED TO BE ADDRESSED

IF CONSTITUTIONAL GOVERNMENT IS

TO SURVIVE

Courts have a constitutional obligation to identify

constitutional violations and also to remedy them. The

Louisiana State Supreme Court was derelict in its duty to

recognize violations of its citizens' Fourth and Fourteenth

Amendment rights and to provide a meaningful remedy for

the unconstitutional punishment suffered by Mr. Gibson and

his family as a result of police misconduct that violated

Gibson's Fourth and Fourteenth Amendment rights under the

10 See Appendix A.

1! See Appendix C.

12 See Appendix A.

9

Constitution of the United States of America.

Certiorari is appropriate in this case to determine:

Does a warrantless arrest by police of a citizen, while

in his home after a fruitless search, pursuant to uncor-

roborated information provided by an arrestee, who

was a convicted felon, known by police to be unreli-

able, violate the provisions of the

Fourth Amendment where the search warrant affi-

davit was deceptive, in that it contained deliberate

lies by the informant, along with intentional mis-

statements and omissions including omissions

regarding the informant's veracity, credibility and

basis of knowledge.

When a citizen has both state and federal remedies

for violations of his Fourth and Fourteenth

Amendment rights, can that state's highest court, on

review, create post-trial, an arbitrary, evidentiary rule

solely applicable to that case that by its effect,

retroactively revokes the state remedy, thereby effec-

tively denying that citizen his federal remedy and the

equal protection to which he is entitled under the

Fourteenth Amendment.

Is a citizen's Fourth Amendment right to be free from

unlawful arrest violated when he is arrested in his

home without a warrant by police officers whose con-

duct when judged by an objective standard would be

considered, at a minimum, grossly negligent and

most probable as evidencing a reckless indifference

to the individual's right?

10

Is a citizen deprived of liberty within the meaning of

the Due Process Clause of the Fourteenth

Amendment when he is convicted and serves twenty-

five years of a life sentence as a result of the police

officers' misconduct in connection with the arrest and

the prosecution's failure to disclose exculpatory

material in the state's file?

Can a state's highest court, on review, post-trial,

effectively eviscerate a person's state tort-law reme-

dy so as to deny that individual adequate redress for

injury to which he is entitled under the Fourteenth

Amendment?

The Louisiana State Supreme Court's decision decid-

ed Fourth Amendment questions that conflict with Beck v.

Ohio; Illinois v. Gates, Franks v. Delaware and Willis v.

Jordan'3, which hold that uncorroborated, untrustworthy

information supplied by a convicted felon, who had already

been arrested for the crime, cannot provide sufficient proba-

ble cause to justify an arrest or a search warrant.

B. SUMMARY OF ARGUMENT

The Louisiana State Supreme Court erroneously held

that the arrest of Roland Gibson in his home without an

arrest warrant does not violate the provisions of the Fourth

Amendment where he was arrested more than two hours

after a fruitless search pursuant to a warrant which lacked

'3 Beck v. Ohio, 379 U.S. 89, 91 - 93 (1964); Illinois v. Gates, 462 U.S.

213 (1983); Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed.

667 (1978), Willis v. Jordan, 20 R.1. 630, 41 ATL 253 (1898).

I]

probable cause because the search warrant affidavit was

deceptive and misleading and contained false statements by

the informant, and material misstatements and omissions.

The search warrant affidavit does not reveal that West had

been convicted of burglary, assault and battery or that he had

been previously arrested for illegal possession of a .22 cal-

iber pistol which was the same type of weapon used in the

Reinecke murder. The search warrant affidavit contains mis-

statements and is deceptive in that it states that West's alibis

did not check out and that he took a polygraph test, howev-

er, it did not reveal that West had first denied any knowledge

of the crime on at least four occasions and that he had failed

the poly-graph test.!4 The affidavit does not state that West's

left middle fingerprint had been lifted from the back window

of the victim's cab or that he confessed and named Gibson as

the shooter only after being confronted with the information

regarding his fingerprint. The affidavit falsely stated that

Gibson was in possession of the murder weapon and that he

had shot into a lady's apartment and at military police with

this weapon.!5 The affidavit truthfully stated that Gibson

was AWOL from the Army. Even though Gibson was AWOL

the police could not arrest him for that infraction. !6

The Louisiana State Supreme Court, on rehearing

concluded that West's faulty confession was corroborated by

Thomas Crayton who had stated that he had seen West and

14 Barefoot v. Estelle, 463 U.S. 880, 103 S. Ct. 3383, 77 L. Ed. 1090

(1983); Bennett v. City of Grand Prairie, Texas, 883 F. 2d 400 (Sth Cir.

1989).

15 See Appendix E and

16 Kurtz v. Moffitt, 115 U.S. 487, 6 S. Ct. 148, 29 L. Ed. 458 (1895).

12

Gibson together nine hours before the murder, however,

Thomas Crayton's statement was not contained in the search

warrant affidavit. Furthermore, the statement was provided

to the police on March 27, 1968 and Gibson's arrest took

place three days later, or on March 30, 1968. The police had

three days to secure an arrest warrant. Moreover, the fact

that, when questioned by the police three months after the

crime, Thomas Crayton mistakenly stated that he saw West

and Gibson together nine hours before the murder, is not suf-

ficient information or exigent circumstances to establish

probable cause for Gibson's arrest three days later without a

warrant.

There is no information in the search warrant affi-

davit regarding West's veracity, basis of knowledge, or relia-

bility. The affidavit is devoid of Mr. West's general back-

ground, employment, personal attributes, position in the

community, reputation with others or the police, the proba-

ble absence of any motivation for falsity, the presence of

West's criminal record, his association with known crimi-

nals, the accuracy of the information provided by him in the

past, his educational background and that he was also

charged as a principal in the Reinecke murder.

The uncorroborated information by West, a convict-

ed felon, who on four previous occasions had denied any

knowledge of the Reinecke murder, and failed a polygraph

test cannot, under these circumstances, provide sufficient

probable cause or a residence search warrant or the warrant-

less arrest of Mr. Gibson, while he was in his home, whether

applying the present totality of the circumstances

13

analysis under Gates!7, or the earlier two prong test in

Aguilar v. Texas'8 and Spinelli v. United States'9,

C. THE LOUISIANA STATE SUPREME COURT

REJECTED OUTRIGHT THIS COURT'S

BASIS TEST FOR DETERMINING THE

SCOPE OF THE FOURTH AMENDMENT.

The common law, from the time our forefathers

adopted the Fourth Amendment, has always provided signif-

icant, if not decisive, guidance as to what the framers of the

Fourth Amendment thought was reasonable probable cause

for the issuance of a search warrant, particularly involving

the sanctity of the home. No right is held more sacred or is

more carefully guarded by the common law than the right to

be free of unreasonable searches and seizures.?®

What has evolved over time is a clear set of rules that

were abdicated in this case. The Louisiana State Supreme

Court held that the trial court committed manifest error by

finding that the police should not have believed West's state-

ments when he implicated Gibson in the murder. The

Louisiana State Supreme Court, citing United States v.

Harris?! reasoned that West's statements were believable

'7 Hlinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527

(1983).

18 378 U.S. 108 (1964).

19 393 U.S. 410 (1969).

20 Terry v. Ohio, 88 S. Ct. 1868, 392 U.S. 120 (1968); Payton v. New

York, 445 U.S. 573, 591 (1983).

21 403 U.S. 573, 91 S. Ct. 2075, 29 L. Ed. 2d 723 (1971).

ic

14

because he implicated himself in the Reinecke murder. To

the contrary, West told the police only what they already

knew. After denying any knowledge of the crime on four

occasions by giving false alibis; after failing a polygraph

examination; after being told by the police that Crayton stat-

ed that nine hours before the crime he was with an AWOL

soldier named "Roland"; and after being confronted by

police with the fact that his left, middle fingerprint had been

lifted from the rear window of the victim's cab, West admit-

ted being at the scene of the crime but named Roland Gibson

as the shooter. At the time West implicated Mr. Gibson in the

Reinecke murder he was charged as the prime suspect.

This Court, in Franks v. Delaware,2? in summary

stated:

"(W]e hold that, where the defendant makes a sub-

stantial preliminary showing that a false_statement

wingly and intentionall Wi e re-

a r the truth, was incl i

warrant affidavit, and if the allegedly false statement

is necessary to the finding of probable cause, the

Fourth Amendment requires that a hearing be held at

the defendant's request. In the event that at that hear-

7 the allegation of perjury or — disregard is

lished by t en f

ripe and, with the affidavits false material

set to one side, the affidavit's remaining content is

insufficient to establish probable cause, the search

warrant must be voided and the fruits of the search

excluded to the same extent as if probable cause was

lacking on the face of the affidavit. Id. 98 S. Ct. at

2676-77."

22 438 US. 154, 98 S. Ct. 2674, 57 L. Ed. 667 (1978).

15

While Franks dealt only with misstatements, Judge

Coleman in United States v. Park?3; recognized that allega-

tions of material omissions were to be treated essentially

similarly, to claims of material misstatements. According to

United States v. House?4; United States v. Collins?5; United

States v. Lewis?®. The affidavit is misleading in that it failed

to state that West had actually denied any knowledge of the

crime on four occasions. The affidavit further stated that

West had taken a polygraph test. The information regarding

the polygraph test misled the judge who signed the warrant

into believing that West had passed the polygraph test, when

in fact he had failed the test. The polygraph test results can

be included in a probable cause affidavit?” but West's test

results were not included in the probable cause affidavit to

search Gibson's home.

The affidavit is devoid of any indicia of West's cred-

ibility or reliability. When we view the affidavit as a whole it

is obvious that it does not provide a substantial basis to sup-

port probable cause to search Gibson's home. It certainly

does not provide probable cause to arrest him after the search

failed to turn up the weapon or any other incriminating evi-

dence.

23 531 F.2d 754, 758 - 759 (Sh Cir. 1976).

24 604 F.2d 1135, 1141, N. 9 (8h Cir. 1979).

25 549 F.2d 557, 561 (8th Cir. 1977), cert. denied, 431 U.S. 940, 97 S.Ct.

2656, 53 L.Ed.2d 259 (1977).

26 425 F.Supp. 1166,1173 (D. Conn. 1977).

27 Barefoot v. Estelle, 463 U.S. 880, 103 S. Ct. 3383, 77 L. Ed. 1090

(1983); Bennett v. City of Grand Prairie, Texas, 883 F. 2d 400 (Sth Cir.

1989).

16

In /llinois v. Gates,*® this Court adopted the "totality

of the circumstances" test for determining whether a warrant

is supported by probable cause. Under Gates (supra):

"The task of the issuing magistrate is simply to make

a practical common sense decision whether, given all

the circumstances set forth in the affidavit before

him, including the veracity and basis of knowledge

of persons supplying hearsay information there is a

fair probability that contraband or evidence of a

crime will be found in a particular place. And the

duty of a reviewing court is simply to ensure that the

magistrate had a substantial basis for ... concluding

that probable cause existed.

Id. 103 S. Ct. at 2332 [quoting Jones v. United States,

362 U.S. 257, 271, 80 S. Ct. 725, 736, 4 L. Ed. 2d

697, (1960)]}. In reviewing a warrant therefore, we

consider the informant's veracity, reliability and

basis of knowledge as important factors, however, a

deficiency in one may be compensated for in deter-

mining the overall reliability of a tip by a strong

showing as to the other or by some other indicia of

reliability.

The first consideration by the Court is that the affi-

davit must demonstrate the veracity and reliability of

the informant. Reliability may be established by

showing that the informant is a bystander or eye-wit-

ness; the second consideration is whether the inform-

ant incriminates himself; the third consideration is

whether the affidavit demonstrates a sufficient basis

of knowledge on the part of the informant."

28 462 U.S. 213, 103 S. Ct. 2317, 2328, 76 L. Ed. 2d 527 (1983).

17

Citing United States v. Harris, the Louisiana State

Supreme Court held that West's confession where he impli-

cated himself in the crime and stated that Gibson was the

shooter in the robbery and murder was credible because this

was his first confession and because he made an admission

against his penal interests. Admissions against penal interests

are of little value where the informer is speaking under

immunity or a deal.29 This is true under JIlinois v. Gates?9,

however, a flexible totality of the circumstances approach is

required. Where an affidavit personally incriminates the affi-

ant or informer by telling the police what they already knew,

such an act is viewed as an attempt to curry favor and receive

more lenient treatment from the police officers.3!

In this case, West testified under oath that at the

police's insistence he implicated Gibson in the Reinecke

murder to avoid capital punishment and to stop the beatings.

Other than to stop the beatings and avoid capital punish-

29 United States v. Harris, 403 U.S. 573, 29 L. Ed. 2d 723, 91 S. Ct. 2075

(1971).

30 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983).

31 United States v. Jackson, 818 F. 2d 345 (5th Cir. 1987); Illinois v.

Gates, 462 U.S. 213, 103 S. Ct. 23 17, 2328, 76 L. Ed. 2d 527 (1983);

Jones v. United States, 362 U.S. 257, 271, 80 S. Ct. 725, 736, 4 L. Ed.

697 (1960).

32 Beck v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223 - 225, 226, 13 L. Ed. 2d

142 (1964), because sufficient probability, not certainty is the touchstone

of reasonabieness under the Fourth Amendment. Hill v. California, 401

U. S. 797, 804, 91 S. Ct. 1106, L111, 28 L. Ed. 2d 484 (1971), probable

cause itself is a doctrine of reasonable probability not certainty. United

States v. Magluta, 44 F. 3d 1530 (11th Cir. 1995); Ortega v. Christian, 85

F. 3d 1521, 1524 (11th Cir. 1996).

18

ment, he had no other reason for saying that Gibson had

committed the murder.

D. PROBABLE CAUSE TO ARREST

Probable cause to arrest exists when the facts and cir-

cumstances within the collective knowledge of law enforce-

ment officers or of which they have reasonably trustworthy

information, would cause a prudent person to believe that the

suspect has committed or is committing an offense." It must

be judged not with clinical detachment, but with a common

sense view of the realities of normal life.43

In this particular case Gibson was arrested at his

home more than two hours after a search pursuant to a war-

rant failed to turn up the weapon or any other incriminating

evidence. The .22 caliber weapon the police were looking for

was in the possession of West when he gave the police the

false information to establish probable cause for the Gibson

search-warrant application. The police had ample time, more

than two hours, in which to secure an arrest warrant. In

Payton v. New York,34 this Court held that absent special cir-

cumstances, a warrantless arrest in the home is unconstitu-

tional.

Contrary to Payton v. New York5 this Court also held

in Illinois v. Gates3® that probable cause must be deter-

33 Kurtz v. Moffitt, 115 U.S. 487, 6S. Ct. 148, 29 L. Ed. 458 (1885).

34 445 US. 573, 591, 100 S. Ct. 1371, 63 L. Ed. 2d 639

35 (1980). 445 U.S. 573, 591, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980).

36 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983).

19

mined by the totality of the circumstances. However, an

informant's reliability, veracity and basis of knowledge are

still, “all highly relevant"37 Under Gates, a confidential

informant may provide adequate information to establish

probable cause for a warrantless arrest, so long as the basis

for the informant's knowledge and the information's reliabil-

ity, when examined under the totality of the circumstances,

are established. Hearsay statements of anonymous inform-

ants may provide probable cause even without corroboration,

if there is sufficient circumstances and details to provide a

substantial factual basis for concluding that the informant is

credible and that the information is reliable and was obtained

under circumstances or from sources indicating its veracity,

particularly where there is an incentive to lie.38

In the present case the record does not establish or

even suggest that West's confession was credible and there

was no corroboration. The evidence indicates that the police

knew the information provided by West was unreliable.

The Louisiana State Supreme Court's conclusion that

Thomas Crayton's statement to the police on March 27, 1968

that he had seen West and Gibson together on December 30,

1967 nine hours before the murder, was not contained in the

search warrant affidavit. A statement that Gibson was with

West nine hours before the murder, even if true, was not suf-

ficient information to obtain an arrest warrant, nor arrest Mr.

37 Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317. 76 L. Ed. 2d $27

(1983).

38 Morin v. Caire, 77 F. 2d 116 (5' Cir. 1996).

20

Gibson without a warrant. Moreover, Gibson's arrest took

place three days later, or on March 30, 1968. Since no exi-

gent circumstances can be shown, the police were required to

secure an arrest warrant. The search failed to turn up any

incriminating evidence and absent exigent circumstances,

the arrest was illegal under Payton because the "government

cannot at the same time justify an arrest by a search or, jus-

tify a search by an arrest.39

E. THE LOUISIANA STATE SUPREME COURT

DENIED PETITIONER'S FEDERAL AND

STATE REMEDIES FOR VIOLATIONS OF

HIS FOURTH AND FOURTEENTH AMEND-

MENT CONSTITUTIONAL RIGHTS WITH

AN ARBITRARY EVIDENTIARY RULING

Roland Gibson was wrongfully convicted of murder,

based on the sole testimony of Lloyd West, as a result of an

alleged confession made by West implicating Gibson, which

was secured by beatings. West's fingerprint was found at the

crime scene. Other than West's alleged confession no other

evidence connected Gibson to the crime scene or the crime.

Gibson had his mother, mother-in-law, and his wife as alibi

witnesses. Furthermore, Mr. Gibson testified in his own

defense. _

After serving twenty-five years of a life sentence, Gibson

secured his release when it was determined that the prosecu-

tion did not turn over information to Gibson's attorney indi-

cating that West had lied repeatedly to police prior to

39 Johnson v. United States, 3 3 3 U.S. 10 (1948).

21

and after giving the alleged confession which implicated

Gibson.4®

After his release, Gibson had the option to seek relief

under the federal remedy, 42 U.S.C.A. section 1983, or a

state remedy, Louisiana Civil Code Article 2315, for false

imprisonment, malicious prosecution, and reckless disregard

for his constitutional rights. Given that West was now will-

ing to be truthful, and trusting in the ability of a trial judge to

be able to determine the credibility of West or any police wit-

nesses who would be called to dispute his testimony, Gibson

chose to pursue his remedy in state court.

'

West testified at the civil trial that the police beat him

in order to obtain a confession, told him they knew he was

with "Roland" and forced him to implicate Gibson as his

accomplice. West testified that, at that point, he would have

given anyone's name to stop the beatings.

The Louisiana State Supreme Court in its per curiam

opinion*! attempted to corroborate, or buttress statements by

West in his confession which at the civil trial he testified

were lies. Mentioning Thomas Crayton's statement does not

cure the lies that West had told at the time of his arrest, nor

does it cure the false and misleading search warrant affidavit.

40 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215

(1963).

41 See Appendix A at page 794.

22

The City of New Orleans did not call any witnesses

except West to testify at the trial nor was any evidence

offered to refute West's testimony. The trial judge found

West's testimony to be very credible and gave reasons based

on observations that were made during his testimony, and

during the course of the trial. In this particulay case the trial

judge observed Mr. West's demeanor during the three day

trial. She questioned Mr. West extensively regarding his

1968 statement and the beatings and rendered a judgment

regarding West's civil trial testimony. The trial Judge stated

in her Reasons for Judgment that she "found Mr. West to be

a very credible witness. He described the beatings and tor-

ture in great detail and it was apparent that while testifying

he was actually reliving this experience".42 The Louisiana

State Supreme Court did not accord the trial court the "much

discretion" that has always been given the findings by the

trier of fact, and it ignored the fact that there was no testi-

mony adduced by the City of New Orleans to dispute West's

testimony.

To the contrary, the Louisiana State Supreme Court

held that the most reliable evidence given by West was the

1968 confession in the police report and his 1968 criminal

trial testimony. At the civil trial‘: West admitted that both his

1968 confession and the 1968 criminal trial testimony were

lies, coerced by the police. In effect, the Louisiana State

Supreme Court created an evidentiary rule, solely applicable

to this case, which did not exist at the time the Gibson's filed

their lawsuit or at the time of the trial, i.e. West's testimony

could only be believed if it supported his alleged voluntary

42 See Appendix C.

23

confession. Thus, Gibson had no post-deprivation due

process remedy in that the testimony offered by West at the

trial which the Court concluded to be "very credible" was not

accorded any weight by the Louisiana State Supreme Court.

The Louisiana State Supreme Court completely ignored

West's civil trial testimony that his confession and 1968

criminal trial testimony were lies and arbitrarily concluded

that the confession and criminal trial testimony should be

believed over the testimony that he provided in the 1993

criminal proceedings.43

Finally, petitioners were prevented from exercising

their federal remedy for the violations of Gibson's Fourth

and Fourteenth Amendment rights because the Louisiana

State Supreme Court, ignored the law on the standard of

review, by arbitrarily setting aside corroborated, uncontra-

dicted, credible evidence on appeal, thereby failing to pro-

vide petitioner equal protection under the law which retroac-

tively revoked petitioners’ state court remedy years after the

choice of forums had been made.

43 Borsky v Board of Regents of N. Y, 347 U.S. 442, 98 L.Ed. 829, 74S.

Ct. 650 (1954); Provident Savings and Loan Association Society v.

Kentucky, 239 U.S. 103, 36 S. Ct. 34, 60 L. Ed. 167 (1915); Grannis v.

Ordean, 234 U.S. 385, 345 S. Ct. 779, 58 L. Ed. 1363 (1914); New York

& Queens Gas Company v. McCall, 245 U.S. 345, 38 S. Ct. 122, 62 L.

Ed. 337 (1917).

24

XI.

CONCLUSION

The Petition for a Writ of Certiorari should be grant-

ed and the Judgment of the Louisiana State Supreme Court

should be

summarily reversed. Alternatively, the Court

should grant plenary review of the Judgement below.

By:

RESPECTFULLY SUBMITTED:

MATTHEW B. COLLINS, JR., LSBA # 4310

DIANNE J. MARSHALL, LSBA # 8441

COLLINS & MARSHALL

ATTORNEYS AT LAW

234 LOYOLA AVENUE - SUITE 312

NEW ORLEANS, LOUISIANA 70112

TELEPHONE: (504) 525-2255

FACSIMILE: (504) 525-9126

CATRICE A. JOHNSON, LSBA # 24475

ATTORNEY AT LAW

636 NORTH BROAD STREET

NEW ORLEANS, LOUISIANA 70119

TELEPHONE: (504) 822-0360

TOLL FREE: (800) 253-0360

FACSIMILE: (504) 821-0871