Petition for Writ of Certiorari — Harry Brett Taylor, Petitioner v. Georgia

No. _________

================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------HARRY BRETT TAYLOR,

Petitioner,

v.

STATE OF GEORGIA,

Respondent.

-----------------------------------------------------------------On Petition For A Writ Of Certiorari

To The Supreme Court Of Georgia

-----------------------------------------------------------------PETITION FOR A WRIT OF CERTIORARI

-----------------------------------------------------------------BERNARD S. BRODY

Counsel of Record for Petitioner

BRODY LAW FIRM

1180 West Peachtree Street

Suite 2075

Atlanta, GA 30309

(404) 577-9557

bbrody@brodylawfirm.com

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTIONS PRESENTED

I.

When does lengthy solitary confinement of an accused coupled with significant pretrial delays violate an accused’s Fourteenth Amendment right to

Due Process and Sixth Amendment right to a

speedy trial?

II. Where a search warrant affidavit fails to make an

express connection between the evidence sought

and the address of the place to be searched, can a

reviewing magistrate simply infer that such a connection exists?

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................................

i

TABLE OF AUTHORITIES .................................

iv

OPINIONS BELOW.............................................

1

JURISDICTION ...................................................

1

CONSTITUTIONAL PROVISIONS INVOLVED .....

1

STATEMENT OF THE CASE..............................

3

Procedural Facts ...............................................

3

Facts Material To Taylor’s Sixth Amendment

Claim ................................................................

5

Facts Material To Taylor’s Fourth Amendment

Claim ................................................................

9

REASONS FOR GRANTING THE PETITION ... 11

I.

THIS COURT SHOULD GRANT THIS

PETITION TO HOLD THAT, BASED ON

THE KNOWN DELETERIOUS EFFECTS

OF SOLITARY CONFINEMENT ON THE

HUMAN PSYCHE, LONG-TERM PRETRIAL

SOLITARY CONFINEMENT, WITHOUT

JUSTIFICATION, VIOLATES AN ACCUSED’S

RIGHT TO A SPEEDY TRIAL BY PREJUDICING THE DEFENSE ........................ 11

iii

TABLE OF CONTENTS – Continued

Page

II.

THIS COURT SHOULD GRANT THIS PETITION TO RESOLVE A FEDERAL CIRCUIT

SPLIT: WHERE A SEARCH WARRANT AFFIDAVIT DOES NOT MAKE AN EXPRESS

CONNECTION BETWEEN THE EVIDENCE

SOUGHT AND THE ADDRESS OF THE

PLACE TO BE SEARCHED, IS THIS A FATAL DEFECT OR CAN THE MAGISTRATE

INFER THAT SUCH A CONNECTION EXISTS? .......................................................... 17

CONCLUSION..................................................... 27

APPENDIX

Supreme Court of Georgia Opinion, dated February 5, 2018 .................................................... App. 1

Court of Appeals of Georgia Opinion, dated October 11, 2016 ................................................. App. 10

iv

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Barker v. Wingo, 407 U.S. 514 (1972) .........................12

Davis v. Ayala, 135 S. Ct. 2187 (2015) ........................13

Illinois v. Gates, 462 U.S. 213 (1983) ........ 22, 24, 25, 26

L.A. County v. Rettele, 550 U.S. 609 (2007) ................26

United States v. Bautista, Case No. 5:11-CR-42

(W.D. Ky. 2012) ........................................................20

United States v. Gonzales, 399 F.3d 1225 (10th

Cir. 2005) ........................................................... 18, 19

United States v. Hove, 848 F.2d 137 (9th Cir.

1988) .................................................................. 20, 21

United States v. Hunter, 86 F.3d 679 (7th Cir.

1996) .................................................................. 22, 23

United States v. Laughton, 409 F.3d 744 (6th Cir.

2005) .................................................................. 19, 20

STATE CASES

Janis v. Commonwealth, 472 S.E.2d 649 (Va.

App. 1996).......................................................... 21, 25

State v. Trujillo, 150 N.M. 721, 266 P.3d 1

(2011) ....................................................... 22, 23, 24, 25

Taylor v. State, 792 S.E.2d 101 (Ga. App. 2016)...........1

Taylor v. State, Case No. A15A1305 (Ga. App.

Nov. 2, 2015) ..............................................................3

v

TABLE OF AUTHORITIES – Continued

Page

Taylor v. State, Case No. S17C0501 (Ga. Feb. 5,

2018) ..........................................................................4

Wilson v. State, 148 Md. App. 601 (Md. App.

2002) ........................................................................14

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. IV ............................................. 2, 11

U.S. Const. amend. VI ............................................. 1, 11

U.S. Const. amend. XIV, § 1 ..........................................2

OTHER SOURCES

John McCain with Mark Salter, Faith of My Fathers, 206 (Random House 1999) ............................11

Juan Méndez, Solitary Confinement Should be

Banned in Most Cases, UN Expert Says, UN

News (Oct. 18, 2011) (available at https://

news.un.org/en/story/2011/10/392012-solitaryconfinement-should-be-banned-most-cases-unexpert-says) .............................................................16

1

OPINIONS BELOW

The opinion of the Georgia Supreme Court, affirming the trial court’s order on Petitioner’s motion to suppress, is reported at Taylor v. State, 810 S.E.2d 113 (Ga.

Sup. Ct. 2018) and can be found in the appendix. Pet.

App. 1-9. The opinion of the Georgia Court of Appeals,

affirming the trial court’s order on Petitioner’s speedy

trial claim, is reported at Taylor v. State, 792 S.E.2d

101 (Ga. App. 2016), and can be found in the appendix.

Pet. App. 10-31.

------------------------------------------------------------------

JURISDICTION

Petitioner seeks review of the final judgment rendered by the Georgia Supreme Court on February 5,

2018, as to his claims of right under the United States

Constitution. This Court has jurisdiction to review

this case on writ of certiorari pursuant to 28 U.S.C.

§ 1257(a).

------------------------------------------------------------------

CONSTITUTIONAL PROVISIONS INVOLVED

Sixth Amendment to the

United States Constitution

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

2

nature and cause of the accusation; to be confronted with the witnesses against him; to

have compulsory process for obtaining witnesses in his favor, and to have the Assistance

of Counsel for his defence.

*

*

*

Fourth Amendment to the

United States Constitution

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.

*

*

*

Fourteenth Amendment to the

United States Constitution

Section 1

No State shall make or enforce any law which

shall abridge the privileges or immunities of

citizens of the United States; nor shall any

State deprive any person of life, liberty, or

property, without due process of law; nor deny

to any person within its jurisdiction the equal

protection of the laws.

------------------------------------------------------------------

3

STATEMENT OF THE CASE

Procedural Facts

On January 7, 2009, Harry Brett Taylor was indicted in Gwinnett County, Georgia, on allegations of

sexual offenses against children. Pet. App. 1. On July

26, 2012, Taylor filed a plea in bar asserting that the

government had violated his Sixth Amendment right

to a speedy trial. Pet. App. 14. Taylor’s case had endured over four years of delays and he spent the entirety of that time in solitary confinement. R. 591.1 The

trial court denied Taylor’s plea in bar on September 26,

2012. Pet. App. 14.

On November 21, 2013, Taylor filed a motion to

suppress evidence seized from his home during the execution of a search warrant. Pet. App. 1, 14. He argued,

on Fourth Amendment grounds, that the search warrant affidavit was insufficient because it failed to establish a connection between the alleged criminal

activity and the address to be searched. Pet. App. 3. On

April 28, 2014, the trial court denied this motion. Pet.

App. 14.

On December 18, 2014, following a stipulated

bench trial, Taylor was convicted on all counts. Pet.

App. 14. He appealed his conviction to the Georgia

Court of Appeals, claiming that the trial court had

erred in denying his plea in bar and motion to

1

Except where otherwise specified, citations to the record

and transcript refer to the appellate record in Taylor v. State, Case

No. A15A1305 (Ga. App. Nov. 2, 2015). See Pet. App. 10, fn. 1, for

a detailed explanation of the prior history in this case.

4

suppress. Pet. App. 10-11. On October 11, 2016, the

Georgia Court of Appeals affirmed. Pet. App. 31.

On October 31, 2016, Taylor petitioned the Georgia Supreme Court for certiorari to review the following two issues: (1) whether his four-plus years in

solitary confinement prior to trial, coupled with egregious delays by the State in bringing him to trial, violated his Sixth Amendment right to a speedy trial, and

(2) whether the search warrant affidavit was fatally

deficient where the facts set forth therein completely

failed to make any connection between the evidence

sought and the address to be searched. Pet. for Cert.,

Taylor v. State, No. S17G0501, 2018 Ga. LEXIS 73 (Ga.

Feb. 5, 2018).

On May 15, 2017, the Georgia Supreme Court

granted certiorari only as to the second issue, which it

restated in its opinion as follows:

[W]hether an affidavit executed in support of

an application for a search warrant that does

not specifically say that the residence to be

searched is the residence of the suspect may

nevertheless be sufficient to establish that

connection based on inferences that can be

drawn from the affidavit and thus be sufficient to establish a nexus between the evidence to be seized and the place to [be]

searched.

Pet. App. 1.

5

On February 5, 2018, the Georgia Supreme Court

affirmed the Georgia Court of Appeals’ decision as to

this issue. Pet. App. 9.

Facts Material To Taylor’s

Sixth Amendment Claim

The central fact of Taylor’s Sixth Amendment

claim is undisputed: The State kept him in solitary

confinement for over six years prior to trial and has

never explained or attempted to justify it. T. 7. The parties stipulated at trial to the fact that Taylor was

placed in administrative segregation following his arrest on July 24, 2008, and was held there continuously

for over six years until his transfer to the general jail

population on November 25, 2014. T. 7.

In an order dated September 26, 2012 – four years

into Taylor’s six-year stay in solitary confinement – the

trial court found that keeping Taylor in solitary confinement while he awaited trial was oppressive and

that “[t]here [was] no evidence propounded by the

State supporting any necessity or justification for this

confinement.” R. 631-32. In spite of this admonition,

the State continued to hold Taylor in solitary confinement for an additional two years.

*

*

*

After indicting Taylor on October 15, 2008, it took

the State almost two years to produce all of the discovery to the defense. Pet. App. 12. Most of the discovery

delays were attributable to issues related to the

6

examination of the computers seized from Taylor’s

home. MT. 110, 9/6/2012.2 Due to the inadequacy of its

computer forensic lab, the State took almost a year to

extract the data from the computers. MT. 35, 43, 54-56,

65, 105, 8/18/2010. For reasons never explained, the

State waited another year to turn this evidence over to

the defense and appears to have turned it over when it

did, only in response to a letter from Taylor’s attorney

demanding it. MT. 110, 9/6/2012.

Immediately upon receiving the computer evidence, Taylor filed a motion to suppress. Pet. App. 12.

After the court held a hearing on the motion to suppress, Taylor waited 15 months to receive a ruling.

When the court finally issued a ruling, the parties discovered that the judge’s staff attorney had been involved in his case during her previous employment as

an assistant prosecutor in the district attorney’s office.

Pet. App. 13. After that judge was recused and her ruling was vacated, the court cycled through another four

judges, all of whom recused themselves. Pet. App. 1314. It took almost two years from the date of the initial

hearing on the motion to suppress for Taylor to receive

a final ruling from a qualified judge. Pet. App. 14.

During this entire time, Taylor remained in solitary confinement. A jail administrator testified that

administrative segregation or “the hole,” where Taylor

was housed, is used for punishing inmates who violate

2

At the hearing on Taylor’s plea in bar, the State submitted

into evidence a timeline of the events in his case to date. This

timeline, labeled “State’s Exhibit 1,” appears in the motion transcript.

7

the rules and for housing inmates with severe mental

illnesses. MT. 16-25, 29-31, 9/6/2012. There was no testimony, however, that Taylor had ever broken a rule

or was suffering from a mental illness. MT. 29-31,

9/6/2012. To this day, the State has not explained why

Taylor was housed in administrative segregation. MT.

57, 9/6/2012. Even after the trial court criticized the

State for having kept Taylor in solitary confinement for

the previous four years, R. 631-32, the State continued

to hold him in solitary confinement for two additional

years, T. 7.3

Taylor testified at the hearing on his plea in bar

that, during his incarceration, he was locked in his cell

for as many as 23 hours a day, with no outside contact.

MT. 32, 9/6/2012. When he was allowed out of his cell,

he had contact with only three or four other inmates

and later with large numbers of severely mentally ill

inmates, who yelled and talked to themselves almost

24 hours a day and, on multiple occasions, had attacked Taylor. MT. 32, 58-60, 9/6/2012. None of this testimony was disputed.

Taylor also testified that a deputy came to his cell

at night and forced him to throw away hundreds of

3

Taylor’s counsel argued at the hearing on Taylor’s speedy

trial claim that Taylor’s ex-wife, a close friend of the sheriff ’s,

played a role in keeping Taylor in solitary confinement. MT. 49,

102-03, 9/6/2012. Taylor testified that, against his wishes, the

sheriff had given his estranged wife special access to him on several occasions so that she could press him for access to certain

bank accounts. MT. 48-53, 9/6/2012. The State did not respond to

this testimony or deny that these improper visits occurred.

8

pages of legal documents and notes that he had prepared for his attorney. MT. 36-38, 9/6/2012. Taylor filed

a grievance, a copy of which was placed in evidence at

the hearing, prompting an administrative investigation; however, the deputy was not disciplined as a result. MT. 38-39, 9/6/2012.

In affirming the trial court’s denial of Taylor’s

speedy trial claim, the Georgia Court of Appeals held:

While we recognize that this was a case involving lengthy solitary confinement before

trial . . . [b]ased upon the complexity of the

multi-count indictment involving 15 separate

victims, Taylor’s failure to timely assert his

right to a speedy trial, and the lack of any actual prejudice to his defense, we cannot say

that the trial court’s ultimate conclusion

amounts to an abuse of discretion.

Pet. App. 24-25 (citations omitted). In discussing the

lack of prejudice, the Court stated that, although Taylor’s placement in solitary confinement constituted oppressive pretrial incarceration, this finding did not

mandate a finding of prejudice, absent “proof of substandard conditions or other oppressive factors beyond

those that necessarily attend imprisonment.” Pet. App.

22-23 (citations omitted).

The Court concluded that Taylor did not suffer

substandard conditions while in solitary confinement

because, according to his testimony at the hearing, “he

was allowed [to] leave his solitary jail cell approximately three times a day for about an hour each time

9

and go into a day room and an enclosed recreation

yard” and, “[d]uring [that] free time, [ ] was allowed to

take showers, shave, talk to other people, buy food from

the commissary store, and make telephone calls.” Pet.

App. 22.

Facts Material To Taylor’s

Fourth Amendment Claim

Gwinnett County police obtained a warrant authorizing a search of “1751 Bergen Court” for digital

evidence of the crimes of child molestation and sexual

battery. Pet. App. 1. Taylor moved to suppress the evidence seized by police in executing this search warrant. Pet. App. 1.

The probable cause affidavit was attached to the

search warrant application as “Attachment A” and incorporated by reference. Pet. App. 2. It stated that two

children had come forward claiming to have been molested by Taylor at “the Taylor’s,” “the Taylor residence”

and “Mr. Taylor’s house.” Pet. App. 2. Neither the affidavit nor the attachment stated that Taylor lived at

1751 Bergen Court or that the alleged offenses occurred at this particular address.4 Pet. App. 2.

Taylor argued in his motion to suppress that, due

to this deficiency, the magistrate had no basis for finding probable cause to believe that evidence of the alleged offenses would be found at 1751 Bergen Court

4

No oral testimony was given to the magistrate. MT. 35,

7/10/2012.

10

and that the affidavit was therefore fatally deficient.

Pet. App. 3.

Although no Georgia courts had previously addressed this issue, Taylor identified cases from the

United States Courts of Appeals for the Sixth, Ninth,

and Tenth Circuits, a federal district court in Kentucky

and the Virginia Court of Appeals, holding that the deficiency in question rendered the search warrant invalid. MT. 17-26, 4/15/2014. In its order denying the

motion to suppress, the trial court failed to address

these decisions and, instead, based its ruling only on

“the applicable and controlling authority.” R. 692.

The Georgia Court of Appeals affirmed but identified competing decisions from the Seventh Circuit

United States Court of Appeals and the New Mexico

Supreme Court, holding that this defect in the affidavit

does not preempt a finding of probable cause. Pet. App.

3. The Georgia Court of Appeals adopted the view expressed by these courts but did not address the split

among the jurisdictions. Pet. App. 4-5.

In its opinion affirming the result reached by the

Georgia Court of Appeals, the Georgia Supreme Court

did not address the split in the authorities. Rather, it

tried to distinguish the affidavit in Taylor’s case from

those in the cases cited by Taylor. Pet. App. 8-9. In doing so, however, the Georgia Supreme Court effectively

adopted the view expressed by the Seventh Circuit and

New Mexico Supreme Court that, where the facts in an

affidavit do not expressly connect the suspect or suspected criminal activity to the particular place to be

11

searched, a magistrate may nevertheless infer that

such a connection exists. Pet. App. 6-7.

------------------------------------------------------------------

REASONS FOR GRANTING THE PETITION

I.

THIS COURT SHOULD GRANT THIS PETITION TO HOLD THAT, BASED ON THE

KNOWN DELETERIOUS EFFECTS OF SOLITARY CONFINEMENT ON THE HUMAN

PSYCHE, LONG-TERM PRETRIAL SOLITARY CONFINEMENT, WITHOUT JUSTIFICATION, VIOLATES AN ACCUSED’S RIGHT

TO A SPEEDY TRIAL BY PREJUDICING

THE DEFENSE.

It’s an awful thing, solitary. It crushes your

spirit and weakens your resistance more effectively than any other form of mistreatment.

Having no one else to rely on, to share confidences with, to seek counsel from, you begin to

doubt your judgment and your courage.

– United States Senator John McCain5

The Sixth Amendment right to a speedy trial is a

fundamental constitutional right. The Due Process

Clause of the Fourteenth Amendment guarantees that

no State may abridge or deny it. This right was designed to prevent oppressive pretrial incarceration, to

minimize undue anxiety and concern to the accused

and to limit the possibility that the accused’s defense

5

John McCain with Mark Salter, Faith of My Fathers, 206

(Random House 1999).

12

will be impaired. Barker v. Wingo, 407 U.S. 514, 515

(1972).

Solitary confinement is totally incompatible with

these interests. It is oppressive by design and intended

to maximize anxiety. Jails and prisons generally use

this form of incarceration to punish inmates who break

the rules or to keep violent inmates away from the rest

of the prison population. The goal is to isolate prisoners

by denying them social interactions allowed to the general population of inmates. Its long-term deleterious

effects on the human psyche are well documented

by former solitary inmates, such as, Senator John

McCain.

The Georgia Court of Appeals failed to acknowledge the depth of the anxiety and concern that pretrial

detainees like Taylor, who are kept in solitary confinement, suffer and the way in which it impairs their defenses.

In addition to anecdotal accounts of solitary confinement, scientific and medical research has proven

that it causes undue anxiety and concern. The Honorable Justice Kennedy acknowledged this when he

wrote:

[R]esearch still confirms what this Court suggested over a century ago: Years on end of

near-total isolation exact a terrible price. See,

e.g., Grassian, Psychiatric Effects of Solitary

Confinement, 22 Wash. U. J. L. & Pol’y 325

(2006) (common side-effects of solitary confinement include anxiety, panic, withdrawal,

13

hallucinations, self-mutilation, and suicidal

thoughts and behaviors).

Davis v. Ayala, 135 S. Ct. 2187, 2210 (2015) (Kennedy,

J., concurring).

Former President Barack Obama, a longtime critic

of solitary confinement, echoed Justice Kennedy’s position when he wrote in an op-ed piece for the Washington Post:

Today, [solitary confinement] is increasingly

overused . . . with heartbreaking results –

which is why my administration is taking

steps to address this problem. . . . Research

suggests that solitary confinement has the potential to lead to devastating, lasting psychological consequences. It has been linked to

depression, alienation, withdrawal, a reduced

ability to interact with others and the potential for violent behavior. Some studies indicate

that it can worsen existing mental illnesses

and even trigger new ones. Prisoners in solitary are more likely to commit suicide. . . .

Former President Barack Obama, “Why we must rethink solitary confinement,” Opin. Sec., D.C. Post (Jan.

25, 2016). This article was printed on the same day

that former President Obama announced a ban on solitary confinement for juvenile offenders in federal prisons.

While finding no Georgia cases addressing

pretrial solitary confinement, the Georgia Court of

Appeals analyzed Taylor’s speedy trial claim as if

solitary confinement were “the norm” for pretrial

14

incarceration. It asserted that, in order to show prejudice, Taylor needed to prove “substandard conditions

or other oppressive factors beyond those that necessarily attend imprisonment.” Pet. App. 23. It is clear

however that lengthy solitary confinement is a substandard condition that does not, and should not, attend pretrial incarceration.

This Court has never ruled on whether the anxiety

and concern associated with solitary confinement is

ever warranted in a pretrial setting. In Taylor’s case, it

certainly was not. He was placed in solitary confinement for no reason. His anxiety and concern, which

would have exceeded the levels typically experienced

by inmates in the general population, was particularly

“undue” because his placement in solitary confinement

was never shown to be necessary or justified.

The Georgia Court of Appeals cited Wilson v. State,

148 A.2d 1 (Md. App. 2002), for the proposition that

“solitary confinement does not mandate a finding [of ]

prejudice. . . .” Pet. App. 23. However, the defendants in

Wilson, who were charged with multiple murders, were

placed in solitary confinement because it was determined that they posed a danger to the general prison

population. Id. at 22. In contrast, the State has never

provided any justification for keeping Taylor in solitary

confinement, and the Georgia Court of Appeals never

addressed this distinction. The Georgia Court of Appeals’ decision is unprecedented as it appears to be the

first time a court in this country has condoned unjustified solitary confinement.

15

In addition to not knowing why he was being held

in solitary confinement, Taylor had no way of knowing

how long he would have to wait for trial. This indefiniteness added to his despair and anxiety. Taylor sat

alone in a cell for a year while the State attempted to

extract evidence from his computers. When the State

did uncover evidence, Taylor sat alone in a cell for an

additional year while it waited to turn the evidence

over to the defense. He sat alone in a cell for over a

year awaiting an initial ruling on his motion to suppress from a judge, who, due to a conflict favoring the

State, should never have presided over the motion in

the first place. At any point during these proceedings,

the State could have transferred Taylor to general population, but it chose not to.

The Georgia Court of Appeals’ finding that Taylor’s defense did not suffer actual impairment is unreasonable. Taylor’s defense was impaired by the

diminishment in his ability to assist in his defense.

This diminishment was not brought on by conditions

or factors that “necessarily attend imprisonment.” It

was brought on by his being held for years, unnecessarily, in solitary confinement – a form of incarceration

designed and proven to cause emotional distress. This

harm was detrimental to Taylor’s defense just as the

loss of evidence or of a witness would have been.

In a 2011 report to the United Nation General Assembly committee on social, humanitarian and cultural affairs, an expert on torture stated:

16

Considering the severe mental pain or suffering solitary confinement may cause, it can

amount to torture or cruel, inhuman or degrading treatment or punishment when used

as a punishment, during pre-trial detention,

indefinitely or for a prolonged period. . . . Indefinite and prolonged solitary confinement

in excess of 15 days should also be subject to

an absolute prohibition. 6

To suggest that Taylor was more or less as mentally

capable of assisting in his defense after being imprisoned in solitary confinement for over four years, without reason or recourse, as he was on the day of his

arrest, defies everything we know about the psychological effects of solitary confinement.

Regardless of the heinousness of the crimes of

which a person is accused or the strength of the evidence against him, unjustified long-term pretrial solitary confinement cannot be tolerated. Its use skews

the fairness of the entire system. The State’s delay in

bringing Taylor to trial bordered on official bad faith

and, far from suffering a dismissal as a result, the

State has succeeded in creating case law condoning

this behavior.

The Court of Appeals’ decision has established a

dangerous precedent in Georgia that it is now tolerable

to keep defendants in pretrial solitary confinement

6

Juan Méndez, Solitary Confinement Should be Banned in

Most Cases, UN Expert Says, UN News (Oct. 18, 2011) (available

at https://news.un.org/en/story/2011/10/392012-solitary-confinementshould-be-banned-most-cases-un-expert-says).

17

without justification for lengthy periods of time. This

should never be tolerable and this Court should grant

this Petition in order to prevent other lower courts

from using this decision as authority to further the perpetuation of this most oppressive form of pretrial incarceration.

II.

THIS COURT SHOULD GRANT THIS PETITION TO RESOLVE A FEDERAL CIRCUIT

SPLIT: WHERE A SEARCH WARRANT AFFIDAVIT DOES NOT MAKE AN EXPRESS

CONNECTION BETWEEN THE EVIDENCE

SOUGHT AND THE ADDRESS OF THE

PLACE TO BE SEARCHED, IS THIS A FATAL DEFECT OR CAN THE MAGISTRATE

INFER THAT SUCH A CONNECTION EXISTS?

This Court has never addressed the precise defect

raised in this Petition – the failure of a search warrant

affidavit to expressly connect the evidence sought to

the particular address to be searched. Courts in seven

jurisdictions have addressed the issue and are split in

their determination as to whether this renders the

search warrant affidavit deficient.

Two opposing views have emerged. The majority

view – adopted by the United States Sixth, Ninth and

Tenth Circuit Courts of Appeals as well as the Virginia

Court of Appeals in the Fourth Circuit – holds that this

defect renders the affidavit fatally deficient and requires exclusion of the evidence. The minority view –

adopted by the United States Court of Appeals for the

18

Seventh Circuit, the New Mexico Supreme Court (also

in the Ninth Circuit), and now the Georgia Supreme

Court (in the Eleventh Circuit) – holds that, where this

defect exists, an issuing magistrate may infer from the

totality of the circumstances that the address named

in the search warrant must be the location where evidence of the alleged crime may be found.

a. Cases Following the Majority View

In United States v. Gonzales, 399 F.3d 1225 (10th

Cir. 2005), police obtained a warrant to search “321 E.

Church” for a firearm they believed to be in the unlawful possession of Gonzales, a convicted felon. The affidavit stated that police had found a firearm magazine

in the trunk of Gonzales’ car and wanted to search his

residence for the matching firearm. The affidavit did

not state that Gonzales lived at 321 E. Church or that

the car he was driving was registered to a person living

with him at that address. Id.

The Tenth Circuit held that “the affidavit clearly

lacked probable cause as it failed to establish any connection between the place to be searched and [ ] Gonzales or the suspected criminal activity.” Id. The Tenth

Circuit also held that the warrant was so lacking in

probable cause that police could not have relied on it

in good faith.7

7

Georgia does not recognize the good faith exception, so this

was not an issue in Taylor’s case.

19

The court explained that “[the] affidavit listed the

address of the place to be searched in the caption and

described the residence with particularity; however,

there were no facts explaining how the address was

linked to Mr. Gonzales, the vehicle, or the suspected

criminal activity.” Id. at 1230.

In United States v. Laughton, 409 F.3d 744, 746

(6th Cir. 2005), police obtained a warrant to search the

residence at which an informant had made a series of

controlled drug buys. Id. The police then submitted a

search warrant affidavit that established that there

were “controlled substances located at or in the residence . . . of James Howard Laughton” but failed to

state any facts indicating the address where the residence was located. Id.

The Sixth Circuit Court of Appeals held that the

warrant “failed to make any connection between the

residence to be searched and the facts of criminal activity that the officer set out in his affidavit . . . [and]

failed to indicate any connection between the defendant and the address given.” Id. at 747-48.

The court noted that “filling the gaps in the present case would require a number of inferences, even

inferences drawn upon inferences,” id. at 750, and,

more specifically, was troubled by the fact that:

the statement that the confidential informant

had observed “controlled substances at or in

the residence or located on the person of

James Howard Laughton” does not indicate

where that residence was. . . . The application

20

simply listed the address of the premises to be

searched. . . .

Id. at 751.

In United States v. Bautista, Case No. 5:11-CR-42,

2012 U.S. Dist. LEXIS 39222 (W.D. Ky. March 22,

2012), police obtained a warrant to search “Lot #78 of

the Country Living Mobile Home Park” after, according

to the affidavit, an informant reported having recently

purchased drugs from “Bautista’s residence.” Id. at *2.

Applying Laughton, the district court held that “the affidavit neither indicated that Lot #78 was Bautista’s

residence nor [ ] that the drug sales described by [the

informant] occurred at Lot #78.” In suppressing the evidence, the district court flatly rejected the reasoning

adopted by the Georgia Supreme Court in Taylor’s

case:

The government contends that, given all the

circumstances of [the informant’s] information

and the detailed description of the place to be

searched, the inference can be made Lot #78

is Bautista’s residence. However, the government’s argument is to no avail because the affidavit contains no evidence from which such

an inference could be made.

Id. at *6.

In United States v. Hove, 848 F.2d 137 (9th Cir.

1988), police investigating a bomb threat obtained a

warrant to search “the 2727 DeAnza residence,” where

they believed the suspect, Hove, was living. Officers

went to the address and verified that Hove was living

21

there. In the affidavit, however, the officers failed to

link Hove or the suspected criminal activity to the address listed in the warrant. Id. at 139. The Ninth Circuit held:

Here, reasonable judges could not disagree

over whether probable cause existed to search

the DeAnza location because the affidavit offers no hint as to why the police wanted to

search this residence. The affidavit does not

link this location to the defendant and it does

not offer an explanation of why the police believed they may find incriminating evidence

there; the affidavit simply lists the DeAnza

address as a location to be searched.

Id. at 139-40.

In Janis v. Commonwealth, 472 S.E.2d 649 (Va.

App. 1996), an affidavit was submitted requesting a

search warrant for “803 Pine Avenue, Hopewell, Virginia.” The affidavit detailed observations by the police

of a marijuana plot where the defendant had been observed. Obviously missing from the affidavit was the

fact that this marijuana plot was located at “803 Pine

Avenue.”

Citing Hove, the Virginia Court of Appeals held,

“[T]he magistrate lacked a substantial basis for finding that probable cause existed. The affidavit . . . failed

to provide a ‘nexus’ that linked the marijuana found in

the [ ] field to 803 Pine Avenue in Hopewell,” Janis, 472

S.E.2d at 652.

22

b. Cases Following the Minority View

The Seventh Circuit Court of Appeals and the

New Mexico Supreme Court held in United States v.

Hunter, 86 F.3d 679 (7th Cir. 1996), and State v. Trujillo, 266 P.3d 1, 4-5 (2011), respectively that, under

Gates, where an affidavit does not expressly connect

the alleged criminal activity to the address to be

searched, a magistrate may infer that a nexus exists

based on the totality of the circumstances.

In Hunter, federal agents obtained a warrant to

search “510 Palace Court” for evidence linking Hunter

to bank robberies. 86 F.3d 679, 681. The affidavit failed

to establish that Hunter lived at 510 Palace Court. Id.

While conceding this fact, the Seventh Circuit held

that this deficiency did not automatically render the

warrant invalid. Id. at 681. The Seventh Circuit explained that:

Attachment A to the search warrant and affidavit described the place to be searched as

“the residence at 510 Palace Court, Schaumburg, Illinois. . . .” The affidavit referred four

times to Hunter’s residence; it made no reference to any other place connected to Hunter.

Although Hunter correctly notes that the affidavit did not explicitly state that 510 Palace

Court was his residence, that is the only logical conclusion supported by a common-sense

reading of the affidavit. See Illinois v. Gates,

462 U.S. 213, 236, 76 L. Ed. 2d 527, 103 S. Ct.

2317 (1983).

23

Id. at 681-82. This rationale is almost identical to the

reasoning adopted by the Georgia Supreme Court in

Taylor’s case.

In Trujillo, police obtained a warrant to search

“1208 Juanita SW” for evidence of child molestation

and pornography. 266 P.3d 1, 4-5. The attached affidavit, however, did not expressly state that Trujillo lived

at 1208 Juanita SW or that the alleged offenses occurred there. Id. at 6.

In reliance on Hunter, the court held that “the failure to explicitly state in a search warrant affidavit that

the listed address is that of the defendant, ‘is not a fatal flaw,’ at least not always, as long as a reasonable

inference to that effect can be drawn from the facts detailed in the affidavit,” id. (quoting Hunter, 86 F.3d

679, 681).

While the courts adopting the majority view have

held that issuing magistrates may not simply infer

that the address set forth in the caption or attachment

is the suspect’s residence, the Trujillo court held that

this inference is permissible:

Barring a hypertechnical reading of the affidavit, an inference that the residence described is the same as the residence where

evidence can be found, is much more reasonable than its opposite – that the residence described in such painstaking detail actually

has no relationship to the events of this case.

We think the reviewing judge was well within his rights to draw the rational inference

and avoid the irrational. Understandably, the

24

reviewing judge was concerned that “[t]here

[was] no indication in the affidavit that . . .

Defendant lived at this address, that he was

presently at that address or had been at that

address sometime in the past.” However, considered in context, what else could the detective have intended to say? More significant

still, what other inference could the issuing

judge reasonably have come to?

Id. at 25.

c. Why the Court Should Resolve this Circuit Split

The decisions in these cases reflect a polar opposite view of how magistrates are to conduct the probable cause analysis. In all of the cases discussed above,

the fact that the affidavit failed to expressly connect

the alleged criminal activity to the address to be

searched was undisputed. In all of the cases, the courts

applied the same Gates probable cause standard:

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.

25

Illinois v. Gates, 462 U.S. 213, 238-39 (1983) (quoting

Jones v. United States, 362 U.S. 257, 271 (1980)). This

split stems from a fundamental disagreement as to

what constitutes “common-sense” and what constitutes “the circumstances set forth in the affidavit.”

Courts favoring the majority view have overwhelmingly concluded that the defect in the affidavit

was so egregious that not even the good faith exception

could prevent exclusion of the evidence. This is in

sharp contrast to the court in Trujillo, which stated,

“[W]e acknowledge that this is a close case. Had the

issuing judge denied the search warrant based on the

same affidavit, we would likely uphold that decision as

well,” id. at 728.

The court in Janis was concerned that “because

the affidavit failed to explain why contraband would

probably be found at the Hopewell address, Agent Daniel might just as easily have supplied the magistrate

with an address belonging to an unrelated third party.”

472 S.E.2d at 653. In this age of computers, with officers using word-processing templates to prepare affidavits, this is a real concern. How would an issuing

magistrate, even using common sense, know whether

the address set forth in the caption belonged to the suspect, or was merely the address from the officer’s last

search warrant affidavit that he forgot to change?

Also, what if the officers are unknowingly using a

previous address that belonged to the suspect? How

would a magistrate be able to tell? This is precisely

26

what happened to the deputies in L.A. County v. Rettele

where the following transpired as a result:

Deputies of the Los Angeles County Sheriff ’s

Department obtained a valid warrant to search

a house, but they were unaware that the suspects being sought had moved out three

months earlier. . . . [Retelle] had purchased

the home and moved into it three months

earlier with his girlfriend Judy Sadler and

Sadler’s 17-year-old son Chase Hall. . . . The

deputies’ announcement awoke Rettele and

Sadler. The deputies entered their bedroom

with guns drawn and ordered them to get out

of their bed and to show their hands. They

protested that they were not wearing clothes.

Rettele stood up and attempted to put on a

pair of sweatpants, but deputies told him not

to move. Sadler also stood up and attempted,

without success, to cover herself with a sheet.

Rettele and Sadler were held at gunpoint for

one to two minutes before Rettele was allowed

to retrieve a robe for Sadler. He was then permitted to dress. Rettele and Sadler left the

bedroom within three to four minutes to sit on

the couch in the living room. By that time the

deputies realized they had made a mistake.

550 U.S. 609, 611-12 (2007).

Mistakes like the one made in Retelle illustrate

the problem with the minority view. This Court should

grant certiorari to settle these conflicting interpretations of Illinois v. Gates and determine whether magistrates may infer a connection between the alleged

27

criminal activity and the address listed in the warrant

where no such connection is established in the affidavit.

------------------------------------------------------------------

CONCLUSION

For the foregoing reasons, this Petition for a Writ

of Certiorari should be granted.

Respectfully submitted,

BERNARD S. BRODY

Counsel of Record for Petitioner

BRODY LAW FIRM

1180 West Peachtree Street

Suite 2075

Atlanta, GA 30309

(404) 577-9557

bbrody@brodylawfirm.com