Petition for Writ of Certiorari — Roger Jones, Jr., Petitioner v. United States

CASE NO.

IN THE SUPREME COURT OF THE UNITED STATES

UNITED STATES OF AMERICA,

Plaintiff/Respondent,

VS.

ROGER JONES, JR.,

Defendant/Petitioner.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Robert L. Thomas

Attorney for Petitioner Roger Jones, Jr.

423 North Highland Avenue

Jackson, TN 38301

(731) 422-6895

rthomas@rlthomaslaw.com

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QUESTION PRESENTED FOR REVIEW

Whether the Sixth Circuit erred when it affirmed the district court's decision denying the

Petitioner's Motion to Suppress.

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LIST OF PARTIES

A list of all parties to the proceeding in the court whose judgment is the subject of this

Petition is as follows:

Roger Jones, Jr., Petitioner

United States of America, Respondent

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TABLE OF CONTENTS

Page

Table of Authorities

7

Requested Relief

................................9

Opinion Below

10

Statement of Jurisdiction

...............................11

Statutory Provisions Involved

................................12

Statement of the Case

...............................13

Argument

15

Conclusion

20

Proof of Service

...............................21

Appendix Designation

...............................23

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TABLE OF AUTHORITIES

Cases

Page(s)

Aguilar v. Texas,

378 U.S. 108 (1964)

15, 16

Illinois v. Gates,

462 U.S. 213 (1983)

15

Lo-Ji Sales, Inc. v. New York,

442 U.S. 319 (1979)

16

United States v. Allen,

211 F.3d 970 (6th Cir. 2000)

17

United States v. Archibald,

685 F.3d 553 (6th Cir. 2012)

17

United States v. Coffee,

434 F.3d 887 (6th Cir. 2006)

17

United States v. Durk,

149 F.3d 464 (6th Cir. 1998)

19

United States v. Frazier,

423 F.3d 526 (6th Cir. 2005)

17

United States v. Gahagan,

865 F.2d 1490 (6th Cir. 1989)

19

United States v. Leon,

468 U.S. 897 (1984)

16

United States v. Moore,

661 F.3d 309 (6th Cir. 2011)

16

United States v. Pelayo-Landero,

285 F.3d 491 (6th Cir. 2002)

18,19

United States v. Prout,

526 F.2d 380 (5th Cir. 1976)

19

United States v. Weaver,

99 F.3d 1372 (6th Cir. 1996)

15, 16, 17

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Statutes

18 U.S.C. § 1291

10

18 U.S.C. § 3231

10

21 U.S.C. § 841

10, 11, 12

21 U.S.C. § 846

10, 11, 12

28 U.S.C. § 1254(1)

10

Tenn. R. Crim. P.41

12

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IN THE SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner, Roger Jones, Jr., respectfully prays that a writ of certiorari issue in this matter

to review the judgment of the Court of Appeals below.

191

OPINION BELOW

The opinion of the United States Court of Appeals for the Sixth Circuit is unpublished

and is filed as an attachment hereto.

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STATEMENT OF JURISDICTION

The district court had jurisdiction of this criminal case pursuant to 18 U.S.C. § 3231. The

Petitioner was indicted by a federal grand jury on September 21, 2015, for the alleged violations

of possessing with the intent to distribute cocaine and cocaine base in violation of 21 U.S.C. §

841(a)(1) and 21 U.S.C. § 846.

The Sixth Circuit Court of Appeals had jurisdiction to hear the appeal of the district

court's decision to deny Petitioner's Motion to Suppress pursuant to 18 U.S.C. § 1291. The Sixth

Circuit entered its Order affirming the district court's denial of the Motion to Suppress on August

29, 2017. This Court has jurisdiction over this Petition pursuant to 28 U.S.C. § 1254(1).

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CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The pertinent provisions of 21 U.S.C. §§ 841 and 846, and the Fourth Amendment of the

U.S. Constitution cited in this Petition are at issue in the instant matter.

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STATEMENT OF THE CASE

The Petitioner, Roger Jones, Jr., was indicted by a federal grand jury on September 21,

2015, for the alleged violations of possessing with the intent to distribute cocaine and cocaine

base in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846. On April 11, 2016, the Petitioner

filed a Motion to Suppress, wherein he challenged the search of the residence located at 596 Lark

Street in Brownsville, Tennessee, and moved the district court to suppress any and all evidence

obtained during or derived from said search, including any statements that may be attributed to

the Petitioner as a result of said search and Petitioner's subsequent arrest. (United States v.

Jones, Dkt. No. 16-6811, p. 2). In his Motion to Suppress, the Petitioner argued that the

underlying affidavit supporting the search warrant was insufficient to justify a search of the

residence in this matter because it contained an incorrect address of the residence to be searched,

because the search warrant was not supported by probable cause, and because the officers

conducting the search did not comply with Rule 41 of the Tennessee Rules of Criminal

Procedure. (Id.) The district court ultimately denied the Motion to Suppress.

On July 18, 2016, the Petitioner entered into a conditional guilty plea, whereby he pled

guilty to the two (2) counts of possession with the intent to distribute cocaine and cocaine base as

contained in the Indictment herein while reserving the right to appeal the district court's decision

denying his Motion to Suppress. (Id.) The district court sentenced the Petitioner to a total period

of incarceration of 130 months on each count, to be served concurrently with each other, to be

followed by three (3) years of supervised release on each count, to be run concurrently with each

other.

The Petitioner appealed the district court's decision to deny the Motion to Suppress to the

Sixth Circuit Court of Appeals, where he made a similar argument regarding the deficiencies of

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the search warrant. A three judge panel rejected the Petitioner's arguments and held that the

search warrant was supported by sufficient probable cause, that the mistaken address contained

in the search warrant did not invalidate the warrant, and that the issuance of the no-knock

warrant was justified. (Id. at pp. 3-6).

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ARGUMENT

The Petitioner contends that the Sixth Circuit erred in affirming the decision of the

district court to deny his Motion to Suppress because the search warrant obtained in this matter

was not supported by probable cause and was insufficient on its face.

The Petitioner recognizes that current Supreme Court authority, as interpreted by the

Sixth Circuit as well as other circuits, permits the district court to make findings with regard to

whether search warrants, and subsequent searches, are proper and conducted in accordance with

applicable law; however, the prior decisions in these respects have varied widely, and this Court

should grant review herein to settle these important questions of federal law.

QUESTION ONE: Whether the Sixth Circuit erred when it affirmed the district court's

U

decision denying the Petitioner's Motion to Suppress.

The United States Supreme Court, as interpreted by the Sixth Circuit, has held that the

evidence regarding a motion to suppress on the basis of an invalid search warrant is generally

viewed in a light most likely to support the decision of the district court; however, no deference

is afforded when the district court is the reviewing court. United States v. Archibald, 685 F.3d

553, 557 (6th Cir. 2012). The reviewing court is to examine only the four corners of the

affidavit, and should "find probable cause to support a search warrant if the affidavit establishes

'a fair probability that contraband or evidence of a crime will be found in a particular place."

Id. (quoting, Illinois v. Gates, 462 U.S. 213, 238 (1983)). The district court's probable cause

determination will only be upheld if "the issuing judge had a 'substantial basis for concluding

that a search would uncover evidence of wrongdoing." Id. (quoting, Illinois, 462 U.S. at 236)).

"[W]e will reverse only if the issuing judge's determinations were arbitrarily exercised." Id.

(citing, United States v. Weaver, 99 F.3d 1372, 1376 (6th Cir. 1996)).

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PROBABLE CAUSE

The U.S. Supreme Court, as interpreted by the Sixth Circuit, has explained that when

issuing a search warrant the issuing judge must "perform his "neutral and detached" function

and not serve merely as a rubber stamp for the police." United States v. Leon, 468 U.S. 897,

913-14 (1984) (quoting, Aguilar v. Texas, 378 U.S. 108, 111 (1964)). "A magistrate failing to

'manifest that neutrality and detachment demanded of a judicial officer when presented with a

warrant application' and who acts instead as 'an adjunct law enforcement officer' cannot provide

valid authorization for an otherwise unconstitutional search. Id. at 914 (quoting, Lo-Ji Sales,

Inc. v. New York, 442 U.S. 319, 326-327 (1979). Essentially, the search warrant and supporting

affidavit must contain enough information for the issuing judge to conclude that probable cause

exists that evidence of a crime is present on the premises identified therein. United States v.

Moore, 661 F.3d 309, 312-13 (6th Cir. 2011). Although the determination of the issuing judge is

granted some deference, said determination should properly be set aside when the issuing judge

has arbitrarily exercised his authority in issuing the warrant; Weaver, 99 F.3d at 1376. "[T]he

court must.. insist that the magistrate perform his 'neutral and detached' function and not serve

.

merely as a rubber stamp for police." (Id.) (quoting, Aguilar, 378 U.S. at 111). "As such,

'deference to the [issuing] magistrate

.

.

.

is not boundless." (Id.) (quoting, Leon, 468 U.S. at

914).

The issuing judge and reviewing courts must also be careful that the warrant is not based

upon mere boilerplate language. If an affidavit states only suspicions, beliefs, or conclusions,

without providing some underlying factual circumstances regarding veracity, reliability, and

basis of knowledge, it is considered to be a "bare bones" affidavit. Weaver, 99 F.3d at 1377-78.

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"In determining whether an affidavit is 'bare bones,' the reviewing court is concerned

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exclusively with the statements contained within the affidavit itself." (Id.)

Finally, when examining a search warrant that is based primarily upon information that

has been provided by a confidential informant, such as the one at issue in this case, the reviewing

court "must consider the veracity, reliability, and basis of knowledge of the informant's

information." Archibald, 685 F.3d at 557. The Petitioner recognizes that probable cause may

still be found when the affidavit contains little information if it includes sufficient corroborating

information. Id. However, "'[w]hile independent corroboration of a confidential informant's

story is not a sine qua non to a finding of probable cause,.

.

.

in the absence of any indicia of the

informant[s'] reliability, courts insist that the affidavit contain substantial independent police

corroboration." United States v. Coffee, 434 F.3d 887, 893 (6th Cir. 2006) (quoting, United

States v. Frazier, 423 F.3d 526, 532 (6th Cir. 2005)) (emphasis added). "An affidavit is

sufficient 'where a known person, named to the magistrate, to whose reliability an officer attests

with some detail, states that he has seen a particular crime and particular evidence, in the recent

past, [such that] a neutral and detached magistrate may believe that evidence of a crime will be

found." (Id.) (quoting, United States v. Allen, 211 F.3d 970, 976 (6th Cir. 2000)) (en banc). It

is clear that the search warrant at issue herein does not meet the level required to support the

district court's decision to deny the Motion to Suppress or the Sixth Circuit's decision affirming

the denial.

In the instant case, the search warrant and affidavit are primarily based upon information

that was allegedly obtained from a confidential informant who claimed to have seen the

Petitioner in possession of a large amount of crack cocaine and a handgun. United States v.

Jones, Dkt No. 16-6811, page 3 (August 29, 2017). The search warrant affidavit relies upon

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boilerplate language that fails to establish the reliability and veracity of the informant. The

search warrant and affidavit also does not contain any corroboration of the informant's

information, but instead relies upon the blanket statement offered to support his/her reliability.

Sgt. Turner testified that he had had prior dealings with the confidential informant for eight (8)

months prior to the issuance of the search warrant at issue herein. (Id.) The informant relayed to

Sgt. Turner that s/he personally saw the Petitioner in possession of drugs and a firearm while in

the residence. Sgt. Turner asserted that he was able to corroborate the information from the

informant by driving past the residence one time and observing the Petitioner standing in the

front yard of the residence. (Id.)

The Sixth Circuit rejected the Petitioner's argument that Sgt. Turner failed to adequately

corroborate the information derived from the confidential source. The Sixth Circuit also rejected

the Petitioner's argument that the affidavit supporting the search warrant failed to adequately

establish the informant's reliability. (Id. at pp. 3-4). It is clear that Sgt. Turner's inability to

recall key details with regard to his interactions with the confidential informant fails to establish

the informant's reliability and veracity; however, the Sixth Circuit held that the information

contained in the affidavit provided "a sufficient basis for finding probable cause." (Id. at p. 4).

INCORRECT ADDRESS

The U.S. Supreme Court, as interpreted by the Sixth Circuit, has explained that "[n]o

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." United States v.

Pelayo-Landero, 285 F.3d 491, 495 (6th Cir. 2002) (quoting, U.S. Const. amend. N) (emphasis

added). "To determine whether such a description is constitutionally valid, a judge must ask

'whether the place to be searched is described with sufficient particularity to enable the

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executing officer to locate and identify the premises with reasonable effort, and whether there is

any reasonable probability that another premise might be mistakenly searched." Id. at 495-96

(quoting, United States v. Durk, 149 F.3d 464, 465 (6th Cir. 1998). "The test for determining

whether a search warrant describes the premises to be searched with sufficient particularity 'is

not whether the description is technically accurate in every detail,' but rather whether the

description is sufficient 'to enable the executing officer to locate and identify the premises with

reasonable effort, and whether there is any reasonable probability that another premises might be

mistakenly searched." Durk, 149 F.3d at 465 (quoting, United States v. Prout, 526 F.2d 380,

387-88 (5th Cir. 1976); United States v. Gahagan, 865 F.2d 1490, 1496 (6th Cir. 1989)).

In the instant case, ti is undisputed that the address for the residence to be searched is

incorrectly listed throughout the search warrant and the affidavit. (Jones, at pp. 4-5). The Sixth

Circuit rejected the Petitioner's argument that the incorrect address being listed in the search

warrant and affidavit could have led to another neighboring home being searched by mistake.

Although the Petitioner respects the decision of the Sixth Circuit with regard to this issue, the

Petitioner submits that there was a reasonable probability that the incorrect premises may have

been searched based upon the incorrect address listed in the search warrant and affidavit.

Accordingly, the Petitioner submits that the search warrant issued in this matter is invalid, and

the Sixth Circuit court erred in rejecting the Petitioner's argument on this issue.

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CONCLUSION

For the forgoing reasons, the Petitioner, Roger Jones, Jr., respectfully submits that the

Petition for Writ of Certiorari should be granted in this case. The Petitioner further submits that

the Court should grant certiorari in this case to review the holding of the Sixth Circuit Court of

Appeals with respect to the issue detailed herein.

Respectfully submitted,

Is! obert L. Thomas

Robert L. Thomas (#026629)

Attorney for Petitioner Roger Jones, Jr.

423 North Highland Avenue

Jackson, TN 38301

(731) 422-6895

rthomas@rlthomaslaw.com

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