Petition for Writ of Certiorari — Denis A. Catania, aka Dennis Catania, Petitioner v. New Jersey
Supreme Court briefDec 4, 2017
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C2-)
• No.
IN THE
SUPREME COURT OF THE UNITED STATES
FILED
DEC
DENIS CATANIA,
207
FCE OF THE CLERK
liq
Petittoner,
-VS.
-
STATE OF NEW JERSEY,
Respondent,
On Petition For A Writ of Certiorari
To The Supreme Court of New Jersey
PETITION FOR WRIT OF CERTIORARI
Dents Catania # 841023
Lock Bag R
Rahway, New Jersey 07065
Petitioner, Pro Sc
t
Petitioner Dents Catania petitions this court for a writ
of certiorari to issue to the final judgment of the Supreme
Court of New Jersey based on the following:
a. Questions Presented For Review
Since petitioner was not under arrest requiring exigencies
of HUDSON V. MICHIGAN, din police have a right to accompany
him into a bedroom beyond WASHINGTON V. CHRISMAN guidelines,
and did this constitute an unconstitutional limited security
search beyond MARYLAND V. BUIE?
Did police surpass seizures of premises authorized in MC
ARTHUR V. ILLINOIS, (presence of illegal contraband); SEGURA
V. U.S., (arrest); and CHAMBERS V. MARONEY,. (intervening
circumstances)?
Did the fruit of the initial warrantless intrusion and
seizure of petitioner's premises used as probable cause to secure
warrants progress beyond limits imposed in WONG SUN and MURRAY
V. U.S.?
1
t
b. List of All Parties Whose Judgment Is Sought To Be Revtewed
The parties in this action consist of the petitioner, Dents
Catania, and the respondent, State of New Jersey.
2
t
-s
c. Table of Contents, Separate Appendices, and Authorities Cited
Page
d. Opinions By Courts elow.0000000000060000.6000.009
e. Jurisdtctional Statement.. .,.....................1O
f. Constitutional Provisions Involved...............l 1
g. Statement of Case
Specific Stage In State Proceedings At
Which Federal Question Sought To Be
.1 3
Reviewed Presented. ... . . ........ .. .. . .. . .
Relevant Occurrences
1. Facts.......................................1 4
2• Procedural Events....... . .......• ... . . ......22
h. Argument Amplifying Reasons For Granting Writ
Criteria For Granting Wri-t..................24
Specific Questions As Reasons For The Writ:
A. Intrusion As to Non-Arrestee Absent
Exigencies of HUDSON, Police Right to
Accompany Beyond CRISMAN, and Limited
Security Search beyond !UIE Authorization
(!) warrantless Intrusion Absent
Exigencies Present In HUDSON ...... ......26
Accompaniment of Non-Arestee
eyond CRISMAN. ....................... ..29
Limited Security Search In Excess of
.30
UIE... ... .. ... . .... . ..... ...... .. . .. . .
Police Surpassing Seizures of Premises
Authorized By Presence of Illegal Contraband
In MC ARTHUR, Arrest In SEGURA, and Intervening
Circumstances In CHAMBERS
B.
(1) Surpassing Seizures of Premises
Authorized By MC ARTHUR Absent Presence of
Illegal Contraband......................39
3
1.
Table of Contents (Continued)
Page
SEGUA Incident to Arrest
.40
Situation...... ••..,..... . . . .... ...... . .
CHAMBERS Intervening Circumstances..42
C. Fruit of Initial Warrantless Intrusion
and Seizure of Premises Used as Probable
Cause to Secure Warrants Beyond Limits
Imposed In WONG SUN and MURR AY
(!) WONG SUN-MURR AY limits....9...,....45
(2) UTAH V. STIEFF exceptions.........48
Conclusion.........•.. .. . . . . .. . . . . . .. . . .. . ... . . . . . ..51
4
Table of Contents of Separate Appendix
(Pursuant To Supreme Court R , 14.t1
Vol. I (Appendices A to D)
Appendix A 1-14
Opinion of the Hon. Bernard E. De Leury, Jr.,
J.S.C., Atlantic County, Law Division of the
Superior Court of New Jersey Denying Petitioner's
Motion To Suppress The Fruits of Searches of
November 17, 18, and 19, 2010
Atlantic County Indictment 11-12-3059-D
(November 29, 2012)
Appendix 3 1-39
Opinion of the Superior Court of New Jersey,
Appellate Division
Docket No. A-1757-13T3
(March 27, 2017)
Appendix C-i
Order of the Supreme Court of New Jersey
Docket No, C-93 079250
(September 27, 2017)
Appendix D 1-93
Stenographic Transcript of Atlantic. County Grand Jury
(December 21, 2011)
Vol.11 (Appendices E to G)
Appendix E 1-12,
Petitioner's Brief In Support of Motion To Suppress
(June 25, 2012).
Appendix F 1-13,
Respondent's grief In Opposition To Motion To Suppress
(July 2, 2012)
Appendix G 1-152
Stenographic Transcript of Motion To Suppress
(September 21, 2012)
Vol. III (Appendix H)
Appendix H 1-145
Stenographic Transcript of Motion To Suppress
(October 24, 2012)
5
Table of Contents of Separate Appendix (Continued)
Vol. IV (Appendices I-M)
Appendix I 1-4
Co-Defendant's Supplemental rief In Support of Motion To
Suppress
(November 14, 2012)
Appendix J 1-23
Petitioner's Supplemental brief In Support of Motion To Suppress
(November 15, 2012)
Appendix K 1-11
Supplemental Brief In Opposition To Motion To
Suppress
(November 19, 2012)
Respondent's
Appendix L 1-59
Stenographic Transcript of Atlantic County Grand Jury
(March 20, 2013)
Appendix M 1-61,
Petitioner's Brief To The Superior Court, Appellate Dtv[sion
(September 9, 2015)
Vol. V (Appendices N-O)
AppendiJx N 1-1140
Petitioner's Separate Appendix To rièf To The Superior Court,
Appellate Division
(September 9, 2015)
Appendix 0 1-22,
Petitioner's Petition For Certification,
Supreme Court of New Jersey
(May 18, 2017)
ii
Table of Authorities Cited
Page (s)
Cases Cited:
BREWER V. WILLIAMS,
430 U.S. 387 (1977) ............................ 32,33,37,40
CASTLE ROCK V. GONZALES,
545 U.S. 748 (2005)....... ... .. ... . .... . .. . ....24,25
CHAMBERS V. MARONEY,
399 U.S. 42 (1970).............................1 3,41 ,42,43
CHIMEL V. CALIFORNIA,
395 U.S. 752 (1969)............................31 ,34,37,48
GEORGIA V. RANDOLPH,
164 L.Ed.2d 208 (2006)....... ..................24,25
HUDSON V. MICHIGAN,
547 U.S. 586 (2006)............................1 3,26,27,28,31,38,
48
-
ILLINOIS V. MC ARTHUR,
531 U.S. 326 (2001) ............................ 13,37,39j,41,43
LEAVITT V. JANE L.,
116 S.Ct. 2068 (1996)..........................24
MARYLAND V. BUIE,
494 U.S. 325 (1990)............................1 3,26,30,31
MARYLAND V. KING,
186 L.Ed.2d (2013) .............. ...............27,28,39,48
MURRAY V. UNITED STATES,
487 U.S. 533 (1988)............................1 3,44,46,48
NARDONE V. UNITED STATES,
308 U.S. 338 (1939)....... ..... .. . . .... ... .....40,41
NIX V. WILLIAMS,
467 U.S. 431 (1984) ............................ 44,49
RHODE ISLAND V. INNIS,
446 U.S. 291 (1981) ......... ...................32,33
SEGURA V. UNITED STATES,
468 U.S. 796 (1984) ........ . ........ . ......... .13,35,36,37,39,40,
41,43,45,46,47
7
Table of Authorities Cited (Continued)
Page(s)
Cases Cited: (Continued)
STATE V. AONE,
147 N.J. 599 (1997)............................25
STONE V. POWELL,
428 U.s. 465 (1976)............................38
TERRY V. OHIO,
392 U.s. 1 (1968)..............................34
UTAH V. STIEFF,
195 L.Ed.2d 400 (2016) ......................... 48,49,5O
VIRGINIA V. HICKS,
539 U.S. 121 (2003). ... . •..... . ... . . . . . ..... ...24
WASHINGTON V. CMSMAN,
455 U.S. 1 (1982). ............................. 13,26,29,31 ,36,39,
44
WONG SUN V. UNITED STATES,
371 U.S. 471 (1963)... ... ..... ................. 13,35,37,45,46
Statutes Cite:
23 U
C
Other Authorittes Cited:
N.J. CONST. (1947), art. VI, ¶ 1 0 § 2..........9
It
d. Opinions By Courts Below
On November 29, 2012 the Superior Court, Law Division denied
a. motion to suppress the fruits of searches.
A 1-141.
On March 27, 2017 the Superior Court of New Jersey,
Appellate Division affirmed that decision after petitioner pled
guilty,, but preserved his right to appeal the ruling.
[D 1-391.
On September 27, 2017 the Supreme Court of New Jersey denied
a petition for certification. (C 11.
9
e. Jurisdictional Statement
The date review i's sought of is September 27, 2017. The
judgment is a denfal of a petition for certification. The
statutory provision jurisdiction is predicated on is 28 U.S.C.
§ 1257(a). The judgment was rendered by the Supreme Court of
New Jersey, the highest state court. N.J. CONST. (1947), art.
VI, ¶ 1, § 2.
10
f. Constitutional Provisions, Treaties, Statutes and Regulations
Involved
The Fourth Amendment of the Constitution of the Un[ted States:
"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 person or things to be seized."
N.J. CONST. (1947), art. IV, ¶ 1, § 2:
"The Supreme Court shall exercise
appellate jurisdiction in the last resort
in all causes provided for in this
Constitution."
28 U.S.C. § 1257(a):
"Final judgments or decrees rendered
by the highest court of a state in which
a decision could be had, may be reviewed
by the Supreme Court by wr[t of certiorari
where the validity of a treaty or statute
of the United States is drawn in question,
or when the validity of a statute of any
state is drawn in question on the ground
of its being repugnant to the Constitution,
treaties, or laws of the United States,
11
or where any title, right, privilege, or
Immunity is specIally set up or claImed
under the Constitution or the treaties or
statutes of, or any commission held or
authority exercised under the United States."
12
g. Statement of the Case
(t) Specific Stage In State Proceedings At
Which Federal Question Sought To Be
Reviewed Presented
The specific stage at which a federal question as to the
fourth amendment was raised were petitioner's brief in support
of the motion to suppress in petitioner's briefs to: the trial
court, (J 12-131; the Superior Court, Appellate Division, EM
301; and wi'thi'n his petition to the Supreme Court of New Jersey.
(0 111. Applicability of decisional law were made as indicated.
At trial level, by petitioner, of: WONG SUN V. UNITED
STATES, 371 U.S. 471 (1963), ID 12, J 181; SEGU.A V. UNITED
STATES, 468 U.S. 796 (1984), (A 7, J 121; and WASHINGTON V.
CISMAN, 455 U.S. 1 (1982), EJ 141, by co-defendant of ILLINOIS
V. MC ARTHUR, 531 U.S. 32
(2001), ri 21;
respondent's
acknowledgments of SEGUA and fourth amendment implications,
(E 10, K 51; and the ruling involving SEGUA. (A 71.
On appeal, by petitioner, of: HUDSON V. MICHIGAN, 547 U.S.
586 (2006), EM 301; MARYLAND V. UIE, 494 U.S. 325 (1990), EM
311; SEGURA, EM 34, 39, 41, 44, 47-491; CISMAN, EM 34, 36-371;
MC ATHU, [M 42, 441; CHAMBERS V. MAONEY, 399 U.S. 42 (1970),
EM 451; and MURRAY V. UNITED STATES, 487 U.S. 533 (1988), EM
491; as acknowledged in the opinion as to SEGURA. [B 261.
On petition to the Supreme Court of New Jersey, by
petitioner of SEGURA, (0 81, 15, 211; and MC ARTHUR, (0 161.
13
(ii) Relevant Occurrences
A. Facts
1, September 29, 210
At 3:19 a.m. Hammonton, New Jersey police extinguished
a vehicular fire and found severely burned human remains
incapable of distinguishing gender. They contacted Ross
Heimlich's grandfather, the owner. He informed them his grandson
who resided with him had used the car the day prior, and never
returned. HIs grandfather reported he phoned Heimlich's cell
several times and never received a response. Heimlich failed
to appear for class at a community college he attended on the
day of the fire. (B 81.
Surveillance video of the area revealed the burned vehicle
was being followed by a dark color vehicle. Both made right
turns and stopped. At 2:57 a.m. a bright flash was seen in
Heimlich's car then the other vehicle left.
Police obtained Heimlich's cell records and discovered
several messages between him and someone known as Diana. The
content revealed Diana told Heimlich to go to her house on the
night of September 28, 210 with the promise of sex, after her
return from PhIladelphia. She stated she would contact decedent
when she was ten minutes away. The last exchange occurred at
9:28 p.m., lasted 24 seconds, and his cell phone was near
petitioner's home in Voorhees, New Jersey. Heimlich's aunt
and a friend of his reported he was having an affair with Diana
Camacho, a co-worker at a store, who may have been married.
14
It
The. employer reported that on August 5, 2010 Camacho
attempted to file a complaint against Heimlich which alleged
he sexually assaulted her at work and home. He also related
Camacho stated .she and Rei'mlich had been having an affair since
April resultant in her getting a STD which she gave to her
boyfriend. She stated he was jealous and controlling, and drove
a dark green four door Toyota, possibly a Camry. On August
16, 2010 a municipal court dismissed that complaint. Another
employee told police petitioner came to the store on August
23, 2010 confronted Heimlich, and asked why he proposed to his
girlfriend. Police also obtained Heimlich's computer which
revealed he and Camacho had communicated via it.
After learning petitioner's identity as Camacho's boyfriend,
police located a 911 call regarding a dispute petitioner had
with a moving company at his house revealing it differed from
the 4955 number Camacho used to contact Heimlich the night prior
to his death.
2. October 1, 2010
Police went to petitioner's home and found a for sale sign
on it. They contacted the realtor involved who stated they
listed it for sale approximately seven months earlier and moved
to Florida.
Police then got petitioner's cell and E-Z pass record which
revealed he left New Jersey on July 9 and arrived in Florida
on July 19, 2010. Petitioner obtained a Florida driver's license
on the day of his arrival and lived at a home in Cape Coral.
15
On August 26, 2010 Camacho and her children left New Jersey
and moved to Florida.
3, October 5, 2010
New Jersey authorities contacted Florida police to locate
petitioner and Camacho. The same day sergeant Anton of the
Atlantic county prosecutor's office viewed the photo of the
Florida motor vehicle division which was taken on July 19,
IG 94.3-71,
October 6, 2010
Florida authorities went to petitioner's home there, and
discovered a white Cadillac registered to petitioner outside.
They also found a dark green Toyota registered to him at a nearby
apartment complex at which Camacho resided.
October 29, 2010
Dental records confirmed Heimlich's identity. Petitioner
and Camacho left their original residences and were living at
another house in Cape Coral. Police then obtained a warrant
for the Vorhees house where they recovered no electrontc devices.
November 12, 2010
Verizon responded to a subpoena regarding the 4955 number
and .reported it had been activated by a call from a pay phone
from outside a store in New Jersey on September 28.
November 16, 2010
Police viewed a surveillance tape of a man purchasing the
phone which appeared to be petitioner and went to Florida in
an attempt to interview him and Camacho. They then placed the
16
rM
Florida house the two were residing at under surveillance.
8. November 170 2010
Camacho departed in the Toyota and dropped her son off
at a day car center. Police then approached and informed her
they desired an interview regarding etmlich's death. She
refused and they returned her to the car. About ten minutes
after Camacho left the house four officers knocked on the door.
Petitioner, not wearing a shirt, responded. They identtf[ed
themselves and informed petitioner they were there for a homicide
investigation involving Heimlich. At the hearing on the motion
to suppress two of the officers testified petitioner invited
them in. One identified petitioner as the man who purchased
the phone in the surveillance video.
[B 8-151.
According to police, whom the state courts found credible,
petitioner led officers into the kitchen where the two New Jersey
detectives remained. The house had an open floor plan. From
the kitchen one of the detectives could see a laptop computer
in the living room. At first, the group engaged in talk about
restaurants tn the area. When petitioner requested to get a
shirt from his bedroom, a U.S. marshal who had accompanied them,
followed him "for safety purposes." (B 163. Purportedly, he
stood at the doorway while petitioner put on a shirt, did not
search any of the rooms, and did not make any observations.
A conversation continued regarding petitioner's plans to
take a cruise. One of the detectives asked petitioner if he
would agree to an Interview regarding Heimlich's death.
17
Petitioner responded he desired to speak to a lawyer and
questioning stopped.
Police got a Flori'da judge to issue a search warrant for
the house. It was arranged for two other officers to guard
the house from entry by others, and petitioner left after he
was informed he could not, remain while the premises were secured
and the warrant was obtained. Petitioner attempted to take
a celiphone with him and was informed he could not. Police
then exited as well. Two officers testified no search was
conducted until later in the day after the warrant was issued.
Police proceeded to the local police station about thirty
minutes away. There, an affidavit was prepared for submission
by detective Rauch who testified he had prepared the majority
of it prior to departing New Jersey. It was submitted to the
emergent duty judge at 4 p.m., who issued the warrant. It was
executed at: about 5 p.m., approximately ten hours after
Petitioner departed.
According to police reasoning for the initial intrusion
at petitioner's residence, '(and resultant 1,200 mile one-way
trip), and accosting of Camacho were two. They consisted of:
identifying petitioner as the individual who purchased the
celiphone in the New Jersey video, and interviews of the two.
These came about by viewing of the video a day prior to flying
to Florida. EG 122.14-20, 144.10-121, Detective Rauch who
had been employed by police since 1994 and had extensive training
in investigative fields, (N 82-871, maintained this was required
18
despite viewing the Florida drivers license photo of petitioner
taken four months earlier and an ability to ascertain if the
two would agree to interviews by phone.
The majority of the affidavit [n support of a warrant was
completed in New Jersey except for the information come by on
the day seeking it in Florida. tH 11.9-141. Despite this,
authorities maintained there was no intention to obtain a warrant
when they departed the state, ER 62.13-63.41, but never provided
reasons for the preparation.
Additional items seized were a laptop computer, a personal
computer, two cellphones and a ceilphone charger. Authorities
maintained the laptop germane because there was evidence the
victim and Camacho had communicated by computer that was in
plain view in the living room and not inside the bedroom which
they could not see into from the kitchen where they remained.
Despite this the laptop was found in the master bedroom. EN
97, Item 51.
At this juncture police believed petitioner and Camacho
moved to Florida in July but returned to New Jersey shortly
before September 27, the date petitioner bought the phone to
lure Heimlich to their home on the following day. Authorities
believed they had left their cells in Florida to prevent tracking
but thought they may have used a GPS device which would determine
when they had returned.
.
19
November 1.8, 2010
Three officers proceeded to the school Camacho's children
attended. They interviewed one of her children., Christopher
Reyers. He related they visited their grandparents in
Philadelphia and slept in the Voorhees house. He told them
petitioner rented a van for the trip, removed a GPS device from
one of the cars and put it in the van.
November 19, 2010
Rauch prepared a second affidavit to search petitioners
and Camacho's vehicles for GPS devices, maps, toll records,
other celiphones, computers, other electronic devices and
clothing worn by petitioner and the victim. The same judge
Issued that warrant. Later that day police found the two and
both cars in a parking lot. They recovered two GPS devices.
[3 17-201.
March 7, 2011
Petitioner was charged with murder. [G 4.3-141.
12, May 2011
A woman employed at a store in Philadelphia called the
authorities to report Damien Leo, a customer admitted involvement
in the murder according to'Rauch who testified when respondent
obtained the superseding indictment in March 2013. Leo related
petitioner requested him to help rough a guy up in fall 2010.
He agreed and petitioner picked him up and brought him to the
Voorhees home. Petitioner stated Camacho contacted Hetmlich
and told him to come there. When he arrived Camacho let him
20
in. Petitioner then entered from a back room brandishing a
starter's pistol ordered him onto the floor, then struck him
several times with the pistol and placed him in a choke hold
while Leo got in a few blows. Hetmlich stopped moving and
petitioner said, "(H)e's fucking dead."
[a 17-22J.
13, December 21, 2011 and March 20, 2013
The GPS devices were used as evidence before the grand
jury which indicted petitioner. One of the devices was at the
location the phone used to contact the victim was activated,
and three miles from the scene of the fire 21 minutes after
it- began. (D 38.3-14, 45.1-12, 46.22-47.11; L 30.16-31.111.
21
.
Procedural Events
1. March 7, 2011
Petitioner was charged with Heirnli'ch's murder and related•
offenses. [C 4.3-141.
2, December 21, 2011
The Atlantic County New Jersey grand jury indicted
petitioner, Camacho, and Leo for several offenses i ncluding
first degree murder, conspiracy to commit murder and felony
murder. [D 1-931.
3. June 25, 2012
Petitioner filed a brief in support of a motion to suppress
material seized during the searches. (E 1-121.
4, July 2, 2012
Respondent filed a brief in opposition. (F 1-133.
September 21 and October 24, 2012
Hearings were conducted on the motion to suppress. [C
1-152, H 1-1451.
November 14, 2012
Camacho filed a brief in support. II 1-41.
7, November 15, 2.012
Petitioner filed a supplemental brief. (J 1-231.
8. November 19, 2012
Respondent flied a supplemental brief. (K 1-11).
9, November 29, 2012
The motion was denied. [A 1-141. The trial judge
characterized the discrepancy between police seizing the laptop
22
in the bedroom and attesting it was in plain view in the living
room as a minor factual discrepancy, resultant in a conclusion
police were credible. (A 5; N 97, Item 51.
March 20, 2013
-
A superseding indictment charging the same offenses and
others was obtained. IL 1-59, N 35-511.
July 11, 2013
Petitioner pled guilty to aggravated manslaughter and
preserved the right to appeal disposition of motions. EN 54].
August 22, 2013
Petitioner was sentenced to 25 years imprisonment. (N
60).
September 9, 2017
Petitioner filed his brief on direct appeal, EM 1-611,
along with..a separate appendix.. (N 1-1143.
March 27, 2017
The Superior Court of New Jersey, Appellate Division
affirmed. [B 1-391. The appellate court found the seizures
of premises and fruits of searches of them and the vehicles
harmless under SEGURAS [B 341.
May 18, 2017
Petitioner filed a petition for certification wi'th the
Supreme Court of New Jersey. (0 1-221.
16. September 27, 2017
The petition was dented. [C 11.
23
h. Argument Amplifying Reasons For Granting Writ
1. Criteria For Granting Writ
The granting of certiorari is discretionary. Nonetheless,
criteria demonstrating when the exercise of the writ should
be had occurred in LEVITT V. J A NE L., 116 S.Ct. 2068 (19
There it was held that this court does not normally grant
petitions to review state law, but undoubtedly should when the
alternative is an obvious allowing of blatant federal
nullification of state law. Here, an even more egregious set
of circumstances has occurred as there has been a nullification
of the rulings of this court by a state court.
The situation in TJEAVITT presented a situation where a
court of appeals made an erroneous decision holding invalid
provisions of a Utah statute regulating abortions up to twenty
weeks was not severable from another provision regulating
abortions after twenty weeks gestational age. This nuiiifyied
a state created right and modification of it.
This court similarly held it could not simply accept a
determination of a lower court there was sufficient due process
protection to an interest provided by state law and not determine
whether petitioner's customs or policies were provided too little
protection. CASTLE ROCK V. GONZALES, 545 U.S. 748,757-758
(2005).
Yet another tnstanèe of similarity was when an implicit
decision on state law of the Virginia Supreme Court was held
rightfully subject to review, VIRGINIA V. HICKS, 539 U.S. 121
24
(2003). This was because the state law involved was an
overbreadth application of the first amendment. On what appears
to be the last holding of this court as to when jurisdiction
is rightfully invoked is GEORGIA V. RANDOLPH, 164 L.Ed.2d 20
(2006). There, the liberty interest involved in a search was
held to justify federal involvement by this court. Id., at
241.
Because of the questions which follow as to a ruling by
the state courts in this matter which authorizes police conduct
beyond precedential law of this court BY STATE PRECEDENT, it
should be apparent the matter brought by petitioner renders
an outcome which is yet more ripe for certiorari than these
matters. (Emphasis Added).
It is further maintained this should he had here based
on the finding of failing to review any police credibility
determination of a trial court addressing fourth amendment
implications predicated on STATE V. BRROT\1E, 147 N.J. 599, 615
(1997). (B 32.
Certiorari should be had to ascertain if B.
..BONE can serve
to validate pretextual highly questionable police credibility
as to where objects are found and where they entered. . This
ts especially so when, as here, documents prepared by police
contradict their own testimony. Whether this is constitutional,
is a germane topic pursuant to RANDOPLH and GONZALES, as to
whether sufficient due process was aforded.
25
2. Specific Questions As Reasons For The Writ
A. Intrusion As to Non-Arrestee Absent
Exigencies of HUDSON, Police Right to
Accompany Beyond CRISMAN, and Limited
Security Search Beyond BUlB Authortzatton
(1) Warrantless Intrusion Absent Extgenctes Present In HUDSON
Both in HUDSON and the instant matter warrantless intrusive
conduct is at issue. In HUDSON the court was confronted with
the right of the citizenry to secure their persons, papers and
property from seizure until police obtain a warrant. What was
revealed in HUDSON is that warrantless intrusive conduct is
presumably unconstitutional, and police are responsible for
providing information overcoming this presumption.
Id., at
593.
In the instant matter no person, nor police themselves,
ever maintained either patently illegal material such as drugs
or firearms were believed to he present in petitioner's
residence, or there was material present capable of ready
destruction.
If anything, the results of police conduct seizing a laptop
computer, cellular telephones and GPS devices lays hare this
matter was not one where evidence capable of instant destruction
such as drugs, were implicated. Additionally, this too, was
not a case where inherently destructive devices in the form
of firearms, explosives or other weaponry were believed present.
Accordingly, this court is confronted with a situation
where contrary to HUDSON directives governing warrantless
26
intrusive conduct may police justify that presumably
unconstttuttonal conduct absent any evidence whatsoever of either
patently illegal and/or inherently dangerous material?
This question has not previously been addressed by this
court. Not content with two specific situations present as
to a warrantless non-arrested person premised on a possible
presence of material which is per se illegal or inherently
dangerous, respondent requests intrusion based on possible
evidence presence alone. This constitutes the sole rationale.
The evidence consisted of devices which were: (a) lawful to
be possessed; and (b) incapable of instantaneous destruction,
reflected by seizure.
Respondent may disguise the conduct in whatever fashion
it desires .to make it more palatable for judicial consumption.
Nonetheless, this represents a clear break with HUDSON as police
exploitation of authorized conduct taken to new limits. This
court has never endorsed this. It is therefore ripe for
examination as to validity.
In HUDSON this court was confronted with whether failure
to comply with a knock and announce rule prior to entry of a
residence required suppression. Police admitted to turning
a doorknob prior to an announcement. Eli.minattn of the
presumption of unconstitutional conduct had absent a warrant
was addressed in M ARYL AND V. KING, 16 L.Ed.2d 1 (2013), decided
after the trial court's ruling in this matter.
27
There, it was held in such cases of intrusion there must
he present, "some quantum of individualized suspicion." Id.,
at 8. Even assuming respondent failedto comply with HUDSON
and was capable of rectification pursuant to t<ING, this has
failed to occur within the record. Police failed to articulate
any reason as to why their conduct was necessitated and overcame
the presumption of unconstitutionality.
Moreover, the record is bare as to any justification for
their.actions. They testified to no suspicious activity by
petitioner upon their accosting him. Similarly, the record
is bare as to attempted concealment or destruction of evidence,
the presence of weapons or patently illegal material such as
drugs, and the presence of weapons or any other persons posing
a danger.
If anything, police readily testified to their observations
of the sole other adult occupant of the residence depart with
her son and that they began surveillance prior to entry. The
eventual search, when conducted, yielded, materials such as a
laptop computer, celiphones and GPS devices. These fruits were
not easily destructible, nor where they per se illegal for a
person to possess.
Neither HUDSON nor KING condones these acts. Thus, the
course of conduct is one unexamined previously by this court.
LI
28
(2) Accompantment of Non-Arestee Beyond CRISMAN
In CPISMAN police observed an apparently underage man exit
a untverstty dorm with a bottle of liquor. When they requested
proof of age he responded his room contai2ned it and asked to
be permitted to retrieve it. Police maintained they had to
accompany him. When they did and remained in the doorway, within
30 to 45 seconds a roommate placed a small box in a medicine
cabinet, became nervous, and the officers saw a pipe and seeds
believed to he marijuana from their training. Both were advised
of their self-incrimination rights which they waived. Id.,
at 3-4. This court held police had a right to maintain
continuous observation of persons in custody, Ibid., at 6; a
class which petitioner in the instant matter, is not a member
of.
Today, this court is confronted with asituatton whereby
it can answer should police in certain situations be permitted
to go beyond the accompaniment of an arrestee as to a
non-arrestee? Further, the court is provided the opportunity
to answer this in the context of when the person is tn his own
residence, and there is no specific belief of the possibility
of other persons or weapons present. Such is particular to
the case since police themselves testited petitioner's
girlfriend and son left the restdence prior to their entry and
they articulated nothing regarding the presence of anyone else
or any other concerns.
29
(3) Limited Security Search In Excess of BUIE
A limited security search or a protective sweep is
authorized in certain circumstances by BUIE. There, police
had a warrant for defendant for armed robbery and saw him enter
the basement. After speaking to a woman they entered the
basement to conduct the sweep and encountered defendant along
with clothing worn in the robbery in plain view. Id., at 328.
In condoning this conduct the court was careful to note
it was limited to areas which may contain a person. Ibid.,
at 335-336. Respondent can urge petitioner's bedroom in this
matter may constitute such an area. Arguendo, petitioner readily
concedes that while this may be true, BUIE is distinguished
from this matter for several reasons.
First, no arrest warrant for petitioner or anyone was in
possesston of police. Second, this matter contrac3fcts BUIE
where poitce had observed not only the entry of a person to
the premises beyond the initial female they encountered, but
the focus of their investigation, defendant, for whom an arrest
warrant was issued. Such highly individualized suspicion of
the premises as harboring someone combined with their
observations of defendant's entry could reasonably authorize
their conduct.
However, using that as justification for what occurred
here is taking the court's holding to a ridiculous end in an
attempt to permit general expansion of intruding into all of
a residence which BUIE failed to authorize. Thus, this too
30
constitutes'
a unique expansion of BUIE never authortzed by this
court. It presents a constitutional question as to legality
which should invoke certiorari jurisdiction.
In all, police have three unique unauthorized facets as
to their conduct. They intruded throughout the residence to
observe evidence used to secure a warrant absent tndtcia presence
of anything illegal beyond HUDSON. Police progressed beyond
CRISMAN and escorted a non-arrestee inside his own residence.
Lastly, •their conduct permitted them to view evidence in plain
view absent an arrest warrant for petitioner, or an arrest
warrant for anyone believed to be in the residence authorized
in BUIE,
At
the outset, petitioner submits the entire fnctdent at
his Florida home was staged and conducted as a fishing expedition
in hopes of observing items to utilize in obtaining a search
warrant. Despfte CHIMEL V. CALIFORNIA, 395 U.S. 752 (1969)
police conducted a pre-rehearsed act tn violation of it. The
record reveals police involved appeared to he highly attuned
to what conduct was constitutional, and attempted to exploit
this by recounting a slightly different scenario than those
previously before this court.
Since the court decided CHIMEL nearly a half century ago
authorities know a pretext must be sophisticatedly cloaked as
come about in a setting they were legally in for a court to
validate it. This court condemned police conduct when they
came to defendant's residence to arrest him, permitted him to
31
enter, arrested him, and searched the entire residence which
yielded the fruits of the burglary he was arrested for. There
this court limited searches incident to arrest to areas under
immediate control of defendants. Id., at 753-754.
Here, the conduct in question is similarly disguised.
They admitted Camacho was approached after she left the same
residence with her son. Nothing indicated petitioner could
not have been approached, in the same fashion, upon exit.
Moreover, neither was the subject of arrest at the time
justifying more intrusive conduct. Finally, and of the utmost
import, police could have informed petitioner what they desired
to interview him about, their true purpose; when he answered
his door. Accordingly, he could have invoked his right to
counsel at that time and foreclosed the pretextual intrusion.
Given petitioner's reaction when he was advised of the police
purpose, nothing indicates the same response would not have
been triggered.
Proceeding to petitioner's home to engage him in topics
regarding restaurants and a cruise he was planning on which
they characterized as "small talk" is akin to previous conduct
condemned by this court in BREWE1., V. WILLIAMS, 430 U.S. 387
(1977), (officers transporting defendant charged with murder
engaged in talk regarding the ability of victim's family for
Christian burial if body located); and RHODE ISLAND V. INNIS,
446 U.S. 291 (1981), (officers transporting defendant talked
about if gun used in crime defendant was charged with not
32
located, a child could find it and get hurt).
There, the court made it clear police were to refrain from
words or actions which they should know are "reasonably likely
to elicit an incriminating response." INNIS, at 301.
The education of how not to precisely violate those dictates
is laid bare by the talk regarding differing subjects
distinguishing the conduct from BREWER. Instead they .never
came to the potnt regarding their purpose, observed as much
as they could, and then broached the topic leading to invocation
of counsel. Here, the "safety purposes" are nothing but a
disguised attempt at CHIMEL legality for weapons, as nothing
indicated the presence of weapons or others after Camacho's
departure. However, a distinguishing feature is there defendant
was arrested. Here he was not. In fact he was evicted from
his home while authorities secured it, obtained a warrant and
executed it.
What occurred here can be viewed as more thstrusive than
BREWER or INNIS. There, defendants incriminated themselves.
Here, petitioner invoked the right to counsel when the topic
of the crime he was eventually convicted of was referred to.
Nonetheless, they derived fruits of their conduct, the
observations which led to the warrant, and ultimately the
incriminating evidence seized.
Despite BREWER and INNIS constituting fifth and sixth
amendment violations, intrusive police conduct accomplished
through ruse yielding incriminating evidence has not been
33
C
condoned by this court to compromise constitutional protections.
Nonetheless, relevant law of this court on fourth amendment
principles provides no support for the actions. here. If
anything, this case represents a factual scenario of police
conduct never previously legitimized by this court, rendering
it one which is suitable for certiorari.
-
As in those matters, here police engaged in conduct hoping
not to yield an incriminating response, but an act which
justified a further intrusion. That was engaging petitioner
in a talk of some length which eventually led to a request from
him that he wanted to go to his bedroom to get a shirt.
Prolonging the talk to elicit this yielded the officer
accompanying petitioner and derived the benefit of intrusion
of what was observed in plain view being used as probable cause
for the warrant.
What is involved here resembles CHIMEL in that tt came
on the heels of TERRY V. OHIO, 392 U.S. 1 (1968). For in TERRY,
the court authorized a brief detention for investigation and
a pat down frisk for weapons for safety. Id., at 22-24. The
following term this court was confronted with CHIMEL where police
searched defendant's home, purportedly for weapons and safety
purposes pursuant to TERRY authorization. In CHIMEL police
permitted defendant to enter his residence, and then searched
it yielding a coin taken in a burglary of a coin dealer he was
arrested for. This court found a constitutional violation and
held any intrusion, (similar to TERRY), must be limited to an
34
S
immediate area under an arrestee's control which could contain
a weapon or destructible evidence.
Here
Id., at 763,
it must be noted the rulings below found petitioner
invited police into his residence resultant in a conversation
in the kitchen. What is of the utmost import is he did NOT
invite anyone to accompany him to his bedroom. (Emphasis Added).
Police continue to push the envelope as to tolerable conduct'.
This iS representative of a new frontier in that arena which
this court should examine.
In SEGURA the court enunciated a clear test was to be
resorted to when it is claimed that evidence subsequently
obtained was either tainted or the fruit of a prior illegality.
This is whether the evidence was come about at exploration of
the initial illegality, or instead by means distinguished to
be purged of the primary illegality pursuant to WONG SUN, at
484; SEGt3RA, at 804.
The facts in SECURA di'ffered greatly. A couple occupying
an apartment were arrested outside of it with one in possession
of cocaine, A United States attorney authorized an arrest at
6:30 to 7:00 p.m., and no warrant was obtained unttl the
following day while the apartment was secured to prevent possible
destruction of evidence. Also therein, agents estahltshed
external surveillance and arrested defendant at 7:30 p.m. in
the lobby and denied him entrance to the apartment. Agents
then returned to the apartment to search for other persons.
Upon doing so a woman answered the door and they observed drug
35
paraphernalia in a bedroom. Id., at 800.
Nothing here indicated any reasonable belief of other
dangerous persons. Camacho, the sole other adult residing there,
had departed. A key point here was that, as noted in ruling
on the motion to suppress, one of the officers most candidly
testified the search resulted in confiscation of a laptop
computer found on a dresser in the master bedroom was NOT
observable from the kitchen, but asserted to be in the affidavit
for the warrant. [H 115.20-25, N 971. (Emphasis Added),
This confirms the sole method for that to be known was
from the marshal accompanying defendant to retrieve a shirt,
an act authorized by neither CRISMAN nor SEGURA.
The actions here occurred in November 2010. Petitioner
was not charged until March 2011. No one was arrested and
no one testified to belief other dangerous persons were present.
Harm ensued in the form of evidence showing Camacho and decedent
communicated by computer along with inculpating petitioner by
celiphone records proving activation and purchase at times
petitioner was demonstrated to he in the areas subsequently
corroborated by the GPS devices seized.
This question presents an issue unaddressed previously
by this court. That being whether police can go beyond intrusion
authorized in CRISM,N as to accompaniment of an arrestee, and
accompany a non-arrestee into another room in hi's residence
resultant in observations used to secure .a warrant, which is
purged of taint as to WONG SUN-SEGURA requirements.
36
Certiorari on this matter would determine if the state
court could hold no violation of law of this court when
supposedly an officer did not use his entry to view anything
leading to the warrant, [B 32-331, but the laptop was found
in the master bedroom, [N 971, a room officers could NOT see
into, and maintained the laptop was in the living room, [H 103.361. (Emphasis Added). This is especially so since detective
Anton candidly admitted he did not know if anyone entered the
bedroom. [H 88.25-89.151.
The finding of police credibility despite the laptop being
located in a room different than police maintained when the
warrant was executed, and more importantly, one which polfce
were not constitutionally authorized to enter pursuant to any
previous decision of this court, cannot be said to constitute
"a minor discrepancy." [A 51. This is what the trial judge
did and which the state appellate court found unreviewahie by
state precedent.
This presents a case where at best for respondent, evidence
is found by police in a location they were admittedly not
authorized to be in.
It further presents a matter which thus far remains
unaddressed by this court, and is of significant constitutional
import. This court has previously found police motives relevant
in CHIMEL, BREWER and INNIS and here is provided with an
opportunity to rule as to whether there are some findings so
far afield from facts adduced and so intertwined with motives
37
rendering them ripe for anew findings by appellate courts in
affording due process required. It is submitted this is
particularly so for certiorari petitioned for, on direct appeal,
as opposed to habeas where hearings regarding suppression on
fourth amendment issues afforded as deemed to be full and fair,
are beyond purview. STONE V. POWELL, 428 U.S. 465 (1976).
38
B. Police Surpassing Seizures of Premises
Authorized By Presence of Illegal Contraband
In MC ARTHUR, Arrest In SEGURA, and
Intervening Circumstances In CH A MBERS
W Surpassing Seizures of Premises Authorized By MC ARTHUR
Absent Presence Of Illegal Contraband
In MC ARTHUR this court endorsed securing premises for
two hours subsequent to defendant's wife, informing police he
had narcotics inside. Here no one provided information
petitioner had anything facially presumsumably unlawful or
questionable. Securing the residence for seven hours after
observation of items contrary to CRISMAN and HUDSON, to secure
a warrant takes intrusion to anew level.
Respondent lacked the evidence required by MC ARTHUR for
securing the premises. Respondent cannot maintain the
observations of plain view items contrary toCRISMAN coupled
with a lack of individualized suspicion required by KING to
overcome the HUDSON presumptive invalidity. Extracts of
holdings out of context to come to a convoluted conclusion is
open to question as never previously endorsed..
Petitioner urges this court to examine whether police should
be permitted to go to these lengths.
39
-3
(2) SEGURA Incident To Arrest Situation
Highly relevant matter to this is SEGURA. The rulings.
rendered by the state courts in this matter utilized tt tfl
reference to residence seizure. Petitioner brought to the
attention of the court respondent had erroneously maintained
this court had given endorsement of a premises seizure for 19
hours absent a warrant. This was a minority opinion of two
justices. The majority of four failed to approve this action.
SEGURA, at 812 and 818, n. 1.
This appears to have not been known of in that the seizure
of a residence was not endorsed by this court. The state courts
apparently interpreted this court's ruling to afford much lesser
protection from a premises seizure as prelude to a search,
which petitioner was subjected to, as opposed to a search.
SEGURA, at 806. [A 341.
SEGURA
differs from this matter. Two distinctions there
were the arrest and the possible narcotics presence predicated
on paraphernalia tn plain view. Here there was no arrest, if
anything petitioner was evicted.
The determination of legality by this court has been said
to hinge on examination of an earlier illegal intrusion tainting
a later valid intrusion, SEGURA, at 604-605, or results in an
indirect result where initial intrusion becomes "so attenuated
to 'dissipate the taint." MURRAY, at 537, NARDONE V. UNITED
STATES, 308 U.S. 338 (1939).
.
Before the court is a situation not only in which there
is no suspicion of something per se illegal, but also one in
40
S
which there was no arrest. Respondent still maintains a seizure
of premises prior to obtaining a warrant was legitimate. This
logic does not succeed under MC ARTHUR or SEGURA. It follows
no intervening circumstances present in CHAMBERS, MURRAY or
NARDONE justified the action.
41
(3) CHAMBERS Intervening Circumstances
In CHAMBERS police seized a car after a stop during which
defendants were arrested based on a descriptton of suspects
in a robbery. Police seized clothing consistent with that worn,
and firearms consistent resembling those used during the robbery.
What transpired during the iittial accosting provided the
reasons for Untruston. This court condoned that action but
distinguished the difference between a home and a car because
of mobility.
With facts present there this court held either without
warrant as incidental to arrest, or seized after a warrant was
obtained, evidence was admissible. The holding was police
conduct resorted to there was necessary to be effective. Id.,
at 50-51.
Petitioner submits constraints placed on conduct as to
residences guaranteed higher protectton in CHIMEL and SEGUA,
clearly distinguished from a vehicle in CHAMBERS. CHAMBERS
could have made legitimate searching of petitioner's car for
weapons prior to his use of tt if police were truly concerned
regarding safety. With that not accomplished it displays police
were on a fishing expedition to observe as much as possible
for recounting in the pre-prepared affidavit they coincidentally
happened to bring with them.
CHAMBERS is differentiated from this. Neither presence
of weapons nor intrusion into a vehicle was initially utilized
to make a seizure of premises. Nothing intervening occurred
42
at petitioner's residence except observing electronic devices.
This reverts back to the fact police ventured into
petttioner's home, and absent invitation accompanied him into
another room to make observations which were used in an affidavit
earlier prepared, to obtain a warrant. The other scenarios
justifying seizure had either arrest or the presence of something
inherently suspi'ci'ous,, readily destructible or dangerous, such
as firearms or drugs. Moreover, they were come at during normal
good faith activity.
Here, officers testified to preparing the bulk of an
affidavit prior to proceeding to Florida, The entry was had
to conduct surveillance of as much of the home as possible,
and to recount it in the affidavit. This type of conduct has
not been previously approved by this court and is why this court
should examine this case to ascertain if police should be
afforded license to conduct such intrustons. They progress
beyond authorized ones in SEGURA, MC ARTHUR and CHAMBERS to
justify seizure of a person's home and evicting of him.
However law enforcement may package it, the record is clear
their admissions are tantamount to the declinations to be
questioned by petitioner and his girlfriend constituted the
CHAMBERS intervening circumstances. This transpired when Anton
testified after the two refused to be questioned they had to
move on to their next option which was to attempt to secure
warrants, (I 94.25-96.61, an option police would have the court
believe was never contemplated previously.
43
This offers an opportunity for the court to address whether
invocation of fifth and sixth amendment rights can provide
reasons to justify intrusions pursuant to the fourth amendment
CHAMBERS definition of intervening circumstances. If the court
can somehow believe there was no prior intent to search and
good faith intrusion, it remains open to question if this
constitutes cause for action taken.
44
C. Fruit of Ini'tta.l Warrantless Intrusion
and Seizure of Premises Used as Probable
Cause to Secure Warrants Beyond Limits
Imposed In WONG SUN and MURRAY
(!)
WONG SUN-MURRAY limits
Wtthtn SEGURA, this court addressed WONG SUN. There the
question to he resolved as to whether evidence subsequently
obtained .is tainted, or fruit of a poisonous illegality is whether
the evidence was come at by exploitation of the initial
illegality, or means purged of the taint. WONG SUN, at 484,
SEGURA, at 804.
In this matter the evidence fails to conform to one which
is "purged of the primary taint." This is an impossibility.
U.S. Marshal Green escorted petitioner to his bedroom when he
retrieved a shirt. Green's purported rationale for this conduct
was a, "general off icer safety policy." The statement is
tantamount to he was lust following orders.
This fails to suffice constitutionally, and is in direct
contradiction to CRIS1AN because of petitioner's status as a
non-arrestee, and Green's and other officers' failure to view
anything illegal at the residence. Petitioner cannot conceive
of a rational method of purging the conduct which led to an
affidavit a laptop was viewed at the residence and it was one
of the devices seized after the warrant was obtained listed
as in the master bedroom, a room officers admitted they could
not see into.
The conduct is certainly exploitation of the initial
illegality beyond WONG SUN and SEGURA. Petitioner submits this
45
I
renders this matter one suitable for review by the court to
decide if an officer can disregard rulings on constitutionally
required fourth amendment conduct because of a policy as general
practice. EG 19.3-71. Petitioner submits the intent to intrude
and observe is best demonstrated by what police failed to do.
That is pat frisk him for weapons. It is farcical to maintain
there was a concern for general safety and that he may retrieve
a weapon if unescorted, yet no one ever ascertained if he already
had one on his person.
Several facts note the benefit derived and intent.
Detective Rauch admitted: the only things added to the affidavit
for warrants were the observation of petitioner and the vehicles.
(I 7.4-8.41.. Contrarily, he maintained there was no plan to
search and police would have returned to New Jersey absent seeing
evidence at pettt[oner's residence. (I. 62.13-63.41.
In MURRAY, the court clarified the WONG SUN purging
requirement by noting that if unlawful entry has given officers
knowledge of facts x and y, but fact z has been learned by other
means, fact z can be said to be admissible because it was derived
from an independent source. MURRAY, at 537-538.
This was applied in SEGURA to conclude that what was found
during an untainted and valid search was admissible. Id., at
813-814. Eventual discovery of what was uncovered during an
initial illegal search was not excluded because it was later
legally based on a valid warrant. MURRAY, at 539-540. However,
in MURRAY there were present intervening circumstances of a
46
e.
clear break from the initial conduct to the ensuing one
accomplished with a warrant which i's not present here.
If anything, the facts as represented by the officers
present portray a continuous conduct of proceeding to the
residence, leaving, preparing affidavits, proceeding to a judge,
obtaining the warrant and returning. As noted earlier this
conduct was premeditated, and supposedly accomplished as
expedfently as possible to deprive petitioner of entry of his
home for a minimal time to execute the warrant.
With this the case, respondent cannot have things both
ways. It cannot be argued there was a continuous course of
conduct in obtaining the warrant and executing it, and too that
there was a clear break removing the exploitation of the
i:ilegality had. In essence, the officers' actions fail under
one of two scenarios either they failed to act expeditiously,
and there was undue delay not constitutional pursuant to SEGTJRk,
or there was continuous conduct in searching. This is resultant
in the failure of the intervening circumstance required under
MURRAY to validate their actions.
Accordingly, this court is being requested to examine a.
situation where neither of these occurred, and assess how the
-J
conduct can be constitutional,
47
UTAH V. STRIEFF Exceptions
Petitioner further maintains the applicability of two
holdings of the court subsequent to the ruling on his motion
to suppress in 2012 at the trial level fail to sanction the
police action below. MARYLAND V. KING, infra.; UTAH V. STRIEFF,
195 L.Ed.2d 400 (2016).
In KING this court elucidated the requirement of "some
quantum of individualized suspicion" for intrusive conduct beyond
that authorized in warrants. Id., at 8. In STRIETF the court
noted three exceptions barring primary and derivative evidence
as fruit of the poisonous tree. They were enumerated as
evidence: (1) acquired from a separate independent source, as
permitted by MURRAY, at 537; (2) come at by inevitable discovery,
allowable by NIX V. WILLIAMS, 467 U.S. 4310P 434 (1984); and
the attenuation doctrine whereby an intervening circumstance
interrupted police conduct, validated by HUDSON, at 593.
Here, respondent has pressed the KING individualized
suspicion to one of general officer safety absent any
individualized suspicion. Certiorari would present the court
with an ability to answer if this is encompassed by KING.
Secondly, as to authorized conduct by STRIEFF as acquisition
from an independent source respondent cannot point to such.
The intent of police is apparent. This was to proceed to
petttioner's residence to conduct as much surveillance as
possible, and then to supplement the pre-prepared affidavit
with it to secure more permissible intrusion.
'LI
The pretextualtty much akin to what was condemned in CHINEL,
is simple to follow here. What respondent had the state courts
authorize were that police prepared the ma j ority of an affidavit
in support of a request for a search warrant in New Jersey and
decided they would travel to Florida to identify petitioner
in person despite viewing of a drivers license photo taken four
jf he and his girlfriend would
months earlier, and to ascertain
he interviewed regarding the crime.
After
arrival they encountered petitioner and observed
the laptop. They seized hts premises, evicted him and were
unsuccessful in obtaining interviews. Viewing of the laptop
and seizure of it and several cellphones failed to place
petitioner in New Jersey at the time of the crime. Next, his
girlfriend's son was questioned. He provided information they
had traveled there at the time of the crime and a GPS device
was used. They then obtained additional warrants for the two
vehicles executed them and recovered the incriminating GPS
device.
Lastly, petitioner's affidavit which detailed his escort
into his bedroom was explained away as self-serving with a
-
conclusion the live testimony of police was highly credible,
(but not cast as self-serving to further their ends).
51.
Representations wtthtn the affidavit resultant in the
warrant recount recitation of completion of 51 courses including
the F.B.I. one regarding identification, three regarding
interrogation and none as to fourth amendment protections.
Maintaining a need for corporeal identification of petitioner
located 1,200 miles away already identified on adrivers license
four months old by a detective who has such training is utterly
ridiculous. Further, the interrogation training and the talk
about restaurants illustrate the real motives, and what
transpired. There was a desire to interrogate coupled with
a lack of compliance with the fourth amendment based on the
lack of training in that area.
The evidence was not come at by inevitable discovery
validated by STRIEFF because of NIX since petttioner fit the
criteria of no other relevant decision constitutionally
permitting an escort within his own home. There were no
intervening circumstances which occurred permitting the intrusion
with the record bare of authorities attesting to a belief others
were present or weapons were present.
Because of all of this the conduct is of the type previously
not before this court as approved. If anything it progresses
beyond what has been held constitutionally tolerable in the
past. As such it provides the court with an opportunity to
reach the question of whether the clearly defined limits
established in STRIEFF may be enlarged in certain situations.
It further triggers the question of whether police themselves
may create the CHAMBERS-MURRAY intervening exigency by resorting
to unconstitutional conduct based on policy they are unaware
is unconstitutional.
50
Conclusion
These are all serious questions of jurisprudence justifying
certiorari.
Respectfully Submitted,
Dated:
Denis Catanta,
Petitioner, Pro Se
51
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