Petition for Writ of Certiorari — Matthew B. Corder, Petitioner v. United States

Supreme Court briefApr 19, 2018

Ask Donna

What actually matters in this document.

Text

No. _______________

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2017

MATTHEW B. CORDER

PETITIONER,

vs.

UNITED STATES OF AMERICA,

RESPONDENT.

______________________________________________________

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

______________________________________________________

PETITION FOR A WRIT OF CERTIORARI

Frank W. Heft, Jr.

Counsel of Record

Donald J. Meier

Office of the Federal Defender

200 Theatre Building

629 Fourth Avenue

Louisville, Kentucky 40202

(502) 584-0525

Frank_Heft@fd.org

Counsel for Petitioner

QUESTIONS PRESENTED

When a police officer is charged under 18 U.S.C. §242 with

violating a person’s civil rights by making an invalid, warrantless

arrest, is an instruction prejudicial if it precludes the jury from

deciding whether the arrestee was standing in the doorway

(a public place) of his residence or was standing in his residence

when he was arrested.

II.

Whether a jury instruction defining “willfully” violates the

reasonable doubt standard by allowing a police officer to be

convicted under 18 U.S.C. §242 if he knew or recklessly

disregarded the possibility that his seizure of an arrestee was

constitutionally unreasonable.

III.

Whether Federal Rule of Evidence 608 allows a defendant-witness

to assert his Fifth Amendment right against self-incrimination when

the government seeks to cross-examine him on matters that are

remote and collateral to the offenses for which he is on trial.

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF CONTENTS

TABLE OF AUTHORITIES

OPINION BELOW

JURISDICTION

RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

ARGUMENTS

When a police officer is charged under 18 U.S.C. §242 with

violating a person’s civil rights by making an invalid, warrantless

arrest, an instruction is prejudicial if it precludes the jury from

deciding whether the arrestee was standing in the doorway (a

public place) of his residence or was standing in his residence when

he was arrested.

A. Background

B. Petitioner’s request for an instruction based on Santana

C. The lower courts improperly made findings of fact

D. Split of Authority – Difficulty in Reconciling Payton and

Santana

II.

A jury instruction defining “willfully” violates the reasonable doubt

standard by allowing a police officer to be convicted under 18 U.S.C.

§242 if he knew or recklessly disregarded the possibility that his

seizure of an arrestee was constitutionally unreasonable.

A. Background

B. Acting in open defiance or reckless regard

C. The possibility that the seizure was constitutionally unreasonable 30

III.

Fed.R.Evid. 608 allows a defendant-witness to assert his Fifth

Amendment right against self-incrimination when the government

seeks to cross-examine him on matters that are remote and collateral

to the offenses for which he is on trial.

A. Background

B. The Sixth Circuit misapplied Fed.R.Evid. 608(b) and thereby

violated the petitioner’s Fifth Amendment rights.

CONCLUSION

iii

TABLE OF AUTHORITIES

Cases

Page

Anderson v. Creighton, 483 U.S. 635 (1987)

Apodaca v. Oregon, 406 U.S. 404 (1972)

Ashcroft v. al-Kidd, 563 U.S. 731 (2011)

Blueford v. Arkansas, 566 U.S. 599 (2012)

Brenay v. Schartow, 709 F.App’x 331 (6th Cir. 2017)

Brinegar v. United States, 338 U.S. 160 (1949)

Brown v. United States, 356 U.S. 148 (1958)

passim

Byrd v. State, 481 So.2d 468 (Fla. 1985)

Cain v. Irvin, 286 F.App’x 920 (6th Cir. 2008)

City and County of San Francisco v. Sheehan, 135 S.Ct. 1765 (2015)

Collins v. Commonwealth, 2004 WL 315035 (Ky.Ct.App. 2004)

Cummings v. City of Akron, 418 F.3d 676 (6th Cir. 2005)

Devenpeck v. Alford, 543 U.S. 146 (2004)

Evans v. Michigan, 568 U.S. 313 (2013)

Gradisher v. City of Akron, 794 F.3d 574 (6th Cir. 2015)

Gutierrez v. Cobos, 2015 WL 13239104 at *12 (D.N.M. 2015), affirmed,

841 F.3d 895 (10th Cir. 2016)

Hameline v. Wright, 2008 WL 2696920, *2 (W.D.Mich. 2008)

In re Winship, 397 U.S. 358 (1970)

20, 21, 25

Cases

Page

Johnson v. City of Memphis, 617 F.3d 864 (6th Cir. 2010)

Johnson v. Elk Lake School District, 283 F.3d 138 (3d Cir. 2002)

Johnson v. Louisiana, 406 U.S. 356 (1972)

Kentucky v. King, 563 U.S. 452 (2011)

Kinlin v. Kline, 749 F.3d 573 (6th Cir. 2014)

Kisela v. Hughes, 584 U.S. __, 138 S.Ct. 1148 (2018)

Lawrence v. Bloomfield Township, 313 F.App’x 743 (6th Cir. 2008)

Lawson v. State, 299 Ga.App. 865, 684 S.Ed.2d 1 (2009)

Maryland v. Buie, 494 U.S. 325 (1990)

McClish v. Nugent, 483 F.3d 1231 (11th Cir. 2007)

passim

Mitchell v. United States, 526 U.S. 314 (1999)

Nails v. Riggs, 195 F.App’x 303 (6th Cir. 2006)

9, 32

Payton v. New York, 445 U.S. 573 (1980)

passim

Pearson v. Callahan, 555 U.S. 223 (2009)

People v. Garvin, 30 N.Y.3d 174, 88 N.E.3d 319, 66 N.Y.S.3d 161 (2017)

Puckett v. United States, 556 U.S. 129 (2009)

Screws v. United States, 325 U.S. 91 (1945)

28, 29, 30, 31

Smith v. State, 72 Md.App. 450, 531 A.2d 302 (1987)

Smith v. Stoneburner, 716 F.3d 926 (6th Cir. 2013)

Cases

Page

Sparing v. Village of Olympia Fields, 266 F.3d 684 (7th Cir. 2001)

Stanton v. Sims, 571 U.S. 3 (2013)

State v. Anderson, 163 Wis.2d 1093, 474 N.W.2d 529, n.1 (Ct.App. 1991)

State v. Mikkalson, 2008 WL 5215866, at *3 (Minn.Ct.App. 2008)

17, 21, 25

State v. Shellenbarger, 140 Idaho 185, 90 P.3d 935 (Ct.App. 2004)

15, 25

Strutz v. Hall, 308 F.Supp.2d 767 (E.D. Mich. 2004)

Talbott v. Commonwealth, 968 S.W.2d 76 (Ky. 1998)

12, 15

United States v. Abel, 469 U.S. 45 (1984)

United States v. Archibald, 589 F.3d 289 (6th Cir. 2009)

United States v. Beltran-Garcia, 338 F.App’x 765 (10th Cir. 2009)

United States v. Bennett, 874 F.3d 236 (5th Cir. 2017)

United States v. Botero, 589 F.2d 430 (9th Cir. 1978)

United States v. Bradley, 196 F.3d 762 (7th Cir. 1999)

United States v. Brugman, 364 F.3d 613 (5th Cir. 2004)

United States v. Carrion, 809 F.2d 1120 (5th Cir. 1987)

United States v. Corder, -- F.App’x – (6th Cir. 2018); 2018 WL 818046

United States v. Crapser, 472 F.3d 1141 (9th Cir. 2007)

United States v. Davis, 524 F.App’x 835 (3d Cir. 2013)

United States v. Epstein, 426 F.3d 431 (1st Cir. 2005)

Cases

Page

United States v. Figueroa, 729 F.3d 267 (3d Cir. 2013)

United States v. Gori, 230 F.3d 44 (2d Cir. 2000)

United States v. Hayes, 589 F.2d 811 (5th Cir. 1979)

United States v. Herring, 582 F.2d 535 (10th Cir. 1978)

United States v. Holden, 557 F.3d 698 (6th Cir. 2009)

United States v. House, 684 F.3d 1173 (11th Cir. 2012)

28, 29, 31

United States v. Jackson, 882 F.2d 1444 (9th Cir. 1989)

37, 38

United States v. Lanier, 520 U.S. 259 (1997)

United States v. Mason, 661 F.2d 45 (5th Cir. 1981)

United States v. McClurge, 311 F.3d 866 (7th Cir. 2002)

United States v. Mohr, 318 F.3d 613 (4th Cir. 2003)

United States v. Olano, 507 U.S. 725 (1993)

United States v. Quaempts, 411 F.3d 1046 (9th Cir. 2005)

United States v. Rodriguez-Rodriguez, 441 F.3d 767 (9th Cir. 2006)

United States v. Rohrig, 98 F.3d 1506 (6th Cir. 1996)

United States v. Rosario-Fuentez, 231 F.3d 700 (10th Cir. 2000)

United States v. Santana, 427 U.S. 38 (1976)

United States v. Sease, 659 F.3d 519 (6th Cir. 2011)

United States v. Shafer, 384 F.Supp. 496 (N.D. Ohio 1974)

vii

passim

28, 32

Cases

Page

United States v. Sutton, 336 F.3d 550 (7th Cir. 2003)

United States v. Thomas, 430 F.3d 274 (6th Cir. 2005)

United States v. Vaneaton, 49 F.3d 1423 (9th Cir. 1995)

passim

United States v. Watson, 423 U.S. 411 (1976)

United States v. Whitten, 706 F.2d 1000 (9th Cir. 1983)

Vangel v. Szopko, 672 F.App’x 543 (6th Cir. 2016)

10, 18

Watts v. State, 305 N.W.2d 860 fn.1 (Minn. 1981)

Welsh v. Wisconsin, 466 U.S. 740 (1984)

11, 14, 17

Constitutional Provisions and Rules

United States Constitution, Fourth Amendment

passim

United States Constitution, Fifth Amendment

passim

Statutes

18 U.S.C. §242

passim

28 U.S.C. §1254(1)

42 U.S.C. §1983

11, 18, 23

HI Rev.Stat. §626-1

KRS §431.005(1)(d)

KRS §431.060

KRS §500.050(2)

viii

Statutes

Page

KRS §501.020(1)(a)

KRS §501.020(1)(b)

KRS §501.020(3)

KRS §525.060, Commentary

KRS §525.060(1)

KRS §525.060(1)(b)

50 MN St.Ann. R.Evid. 608

NE Neb.Rev.St. §27-608

NC G.S. §8C-1

12 OK.St.Ann. §2608

WI (W.S.A.) 906.08

Rules

AR R.Evid. 608

AZ R.Evid. 608

CO R.Evid. 608

DE R.Evid. 608

Fed.R.Crim.Proc. 30(d)

Fed.R.Crim.Proc. 31(a)

Fed.R.Evid. 403

34, 37

Rules

Page

Fed.R.Evid. 608

i, 8, 33

Fed.R.Evid. 608(b)

passim

Fed.R.Evid. 609

HI R.Evid. 608

IA I.C.A. Rule 5

IA I.C.A.. 608

ID R.Evid. 608

KY R.Evid. 608

MD Rules 5-608

ME R.Evid. 608

MI R.Evid. 608

MT R.Evid. 608

NH R.Evid. 608

NC G.S. Rule 608

ND R.Evid. 608

NM R.Evid. 11-608

OH Evid.R. 608

RI R.Evid. 608

SC R.Evid. 608

Rules

Page

TN R.Evid. 608

VT R.Evid. 608

UT R.Evid. 608

WV R.Evid. 608

WY R.Evid. 608

Other Authorities

Eighth Circuit Model Jury Instructions, Criminal, Instruction 7.02 (2014)

Eleventh Circuit Pattern Jury Instructions, Criminal, Instruction B9.1A (2016)

Eleventh Circuit Pattern Jury Instructions, Criminal, Instruction O8 –

Violation of 18 U.S.C. §242 (2016)

Fifth Circuit Pattern Jury Instructions, Criminal, §1.38 (2015)

Fifth Circuit Pattern Jury Instructions, Criminal, §2.12

Fifth Circuit Pattern Jury Instructions, Criminal, Instruction 15

29, 30, 32, 33

LaFave, Search & Seizure: A Treatise on the Fourth Amendment §6.1(e)

(5th ed. 2016)

Sixth Circuit’s Pattern Jury Instructions (Chap. 2.05)

Sixth Circuit’s Pattern Jury Instruction 12

32, 33

Tenth Circuit Pattern Jury Instructions, Criminal, Instruction 2.17 –

Violation of 18 U.S.C. §242 (2011)

Third Circuit Model Jury Instructions, Criminal, §5.05 (2009)

PETITION FOR A WRIT OF CERTIORARI

Petitioner, Matthew B. Corder, respectfully petitions for a writ of certiorari

to the United States Court of Appeals for the Sixth Circuit in this case.

OPINION BELOW

The Sixth Circuit’s unpublished opinion is reproduced at App.2a-25a. See

United States v. Corder, --- F.App'x --- (6th Cir. 2018); 2018 WL 818046.

JURISDICTION

The Sixth Circuit issued its decision on February 12, 2018, (App.2a-25a)

and denied petitioner’s petition for rehearing on February 27, 2018. App.1a. The

jurisdiction of this Court is invoked under 28 U.S.C. §1254(1).

RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS

The relevant constitutional and statutory provisions are at App. 49a.

STATEMENT OF THE CASE

On October 22, 2014, petitioner, Matthew Corder, was a deputy sheriff in

Bullitt County, Kentucky. Near midnight, he and Deputy Billy Allen responded to

a call about a suspicious person at a trailer park. Allen parked his patrol car in front

of the trailer that was involved in the call. Petitioner parked his patrol car in front

of Deric Baize’s trailer which was three or four trailers down from where Allen

parked. After completing their response to the call, Allen went to his car and

petitioner walked back to his car which was about 50 to 60 feet away. (R.59,

Transcript (TR) Cross-Examination (CX) Corder at 355-56; R.64, TR Trial, Vol.2

at 682, 716, 727-28, 748-50, 763-64, 816-19).

Allen noticed that petitioner appeared to be talking to someone. He heard

two, raised voices which he described as shouting. He could not hear what was

said but one voice sounded like it was giving commands. Allen later told Deputy

Chief Cottrell that petitioner was not shouting. (R.64, TR Trial, Vol.2 at 728-29,

760-61, 777). Allen saw petitioner run or walk at “a fast pace” onto the porch of a

residence. Feeling that something was “probably wrong,” Allen got out of his car

and walked toward petitioner’s location. He went on the porch and saw petitioner

inside the doorway of the trailer trying to make an arrest. Id. at 730-31, 751, 764.

Deric Baize lived in the trailer with his stepsister, Tara Geary, and her

fiancé, Matthew Brown. It is a residential area with trailers “fairly close” to each

other. When Baize arrived home after 11:00 p.m., a patrol car was parked in front

of his trailer. He went inside his trailer to get something to eat. He went back

outside when he heard movement and saw petitioner get into his vehicle. He said

he asked petitioner what was going on and petitioner told him to mind his own

business. Baize said he asked petitioner to move his vehicle so he could park and

petitioner told him he would move when he was done or had to leave. (R.59, TR

CX Corder at 359; R.63, TR Trial, Vol.1 at 654, 657-59; R.64, TR Trial, Vol.2 at

676, 679-85, 688, 705-06).

Baize became irritated and argued with petitioner about the parking spot

“for a little bit.” As Baize started to walk to his trailer, he told petitioner to “fuck

off.” He repeated those words when petitioner asked him what he said and then

walked into his trailer. Baize admitted his voice was elevated and that he cursed at

petitioner. He didn’t think petitioner heard him the first time so he raised his voice

to be heard the second time. Baize admitted that a person could find his language

offensive. He acknowledged that the trailers had thin walls and it was “fairly easy”

to hear what went on outside. (R.63, TR Trial, Vol.1 at 658-59; R.64, TR Trial,

Vol.2 at 683, 686-88, 705). Deputy Allen testified that a lot of people would be

offended by cursing and that occupants of the trailers were in a position to be

annoyed, alarmed, or offended by such behavior. Id. at 766-68.

Ms. Geary was sleeping when Baize woke her and asked if she knew why a

police officer was outside. She didn’t know and Baize walked out of the trailer and

talked to the officer about five minutes. Baize asked the officer to move his

vehicle, he declined and Baize told him to “fuck off.” Their voices were a “little bit

above average” and Baize’s voice was elevated. The trailers were close together

and had thin walls. She said Baize had an attitude and was rude to the officer. She

heard the officer tell Baize to come down off the porch but Baize said “no” and

walked into the trailer. Geary was upset that Baize engaged the officer and told

him to “fuck off.” When the officer came to the door and told Baize to come

outside he refused and a scuffle ensued. (R.64, TR Trial, Vol.2 at 710-20).

After completing the original call, petitioner returned to his car. Baize was

on his porch and asked if he was “going to move his fucking car.” Petitioner asked

what he said and Baize repeated himself. Petitioner then told him to go in his

house. Baize asked why petitioner was there and petitioner said he would have told

Baize if he wanted him to know. Baize responded, “Fuck you” or “Fuck off.”

Petitioner said, “Excuse me” and Baize repeated the profanity. Petitioner was

concerned because Baize was shouting in the proximity of other trailers. (R.59, TR

CX Corder at 356-61, 372-74; R.64, TR Trial, Vol.2 at 820-27).

Petitioner told Baize to come to him but Baize quickly turned to run off.

Petitioner told him to stop but Baize went into the trailer and closed the door.

Petitioner believed he had probable cause to arrest Baize for disorderly conduct

because Baize was making unreasonable noise by shouting profanities late at night

near other trailers and under Kentucky law there need only be a risk of disturbance.

Petitioner said a light went on in one of the trailers which might indicate that

someone was alarmed or disturbed by the incident. (R.59, TR CX Corder at 354,

359-65, 376-85, 400-07; R.64, TR Trial, Vol.2 at 688-89, 821-27, 834-35, 841-42).

Petitioner walked up the trailer’s porch, activated his body camera, and

knocked on the trailer’s door. Baize answered the knock and appeared at the door

carrying a pizza box. Petitioner asked Baize to come outside because he had been

hollering at him. Baize refused. Petitioner tried to grab him to bring him out to the

trailer’s deck. Baize told petitioner that he was “not allowed in here.” Baize

resisted by putting his hands on either side of the door. Petitioner felt he had no

choice but to arrest him. Petitioner did not believe he was violating Baize’s rights

by putting his hand through the portal of the door to grab him. Deputy Allen aided

petitioner because Baize was bracing himself against the door frame and was

resisting petitioner’s attempt to put him in hand restraints.1 Baize admitted he

resisted arrest and was tased when he refused to put his hands behind his back after

being told multiple times to do so. Petitioner believed that the physical altercation

with Baize presented a substantial risk of physical injury. (R.63, TR Trial, Vol.1 at

662-66; R.64, TR Trial, Vol.2 at 697-700, 731-35, 769-70, 791, 830-37, 843-45).

Petitioner acknowledged that he did not have Baize’s consent to enter his

home but he believed exigent circumstances existed and he was in hot pursuit

because Baize did not stop as ordered. (R.59, TR CX Corder at 379-81, 388-91).

Petitioner believed he had the right to arrest Baize in his doorway because it was a

public place and he committed a crime outside his residence and ran inside to

avoid him. Petitioner believed that once Baize committed a crime he could be

arrested in his house. (R.65, TR Trial, Vol.3 at 884, 886).

R.59, TR CX Corder at 382-97; R.63, TR Trial, Vol.1 at 658-62; R.64, TR Trial,

Vol.2 at 685-91, 697, 709, 824-31, 837, 844-45; R.65, TR Trial, Vol.3 at 884-86.

Baize was charged with second degree disorderly conduct, second degree

fleeing or evading police, and resisting arrest. Petitioner filled out an arrest citation

and completed a use of force form as required by department policy. Baize was in

jail for two weeks before his $1,500.00 bond was posted. The charges were

dismissed in December 2014.2 In May 2015, the Bullitt County Sheriff’s

Department began an internal affairs investigation on Baize’s arrest and petitioner

was fired in June 2015. (R.63, TR Trial, Vol.1 at 481, 511, 514, 522, 553, 669;

R.64, TR Trial, Vol.2 at 791-93).

A federal grand jury charged petitioner with violating 18 U.S.C. §242 by

willfully depriving Baize of his constitutional right to be free from unreasonable

seizures by arresting him without probable cause and unlawfully entering his home

to arrest him and the offense involved the use of a dangerous weapon and resulted

in bodily injury (Count 1). Count 2 charged that petitioner violated §242 by

willfully depriving Baize of his constitutional right to be free from malicious

prosecution by charging him with crimes without probable cause and knowingly

including false and misleading information in the charging document. A jury

convicted petitioner on both counts.

The charges were dismissed without prejudice although Baize was not in court.

The order of dismissal indicates that Baize’s attorney stipulated probable cause for

arrest. At trial, the government, over petitioner’s objection, was allowed to admit

into evidence a copy of the court order on which the stipulation of probable cause

was redacted. (R.64, TR Trial, Vol.2 at 792-93; R.82, Voir Dire at 1169-84, 120607). (Government’s Exhibit (GEX) 13).

Petitioner’s guideline range was 27 to 33 months (offense level 18 and

criminal history category I). He was sentenced to 27 months imprisonment and a 1year term of supervised release. App.26a-31a. The Sixth Circuit affirmed the

conviction and the sentence. App.2a-25a. Rehearing was denied. App.1a.

REASONS FOR GRANTING THE WRIT

1. This case illustrates the lower courts’ difficulty in reconciling Payton v.

New York, 445 U.S. 573 (1980) and United States v. Santana, 427 U.S. 38 (1976)

when a warrantless threshold-doorway arrest is made. Petitioner was convicted of

violating Deric Baize’s civil rights by making an invalid, warrantless arrest of him.

The case presented a question of fact of whether Baize was in his residence

(Payton) or in the threshold- doorway (Santana) when he was arrested. The district

court gave a jury instruction based solely on Payton and denied petitioner’s request

for an additional instruction based on Santana.

There is a split of authority in applying Payton - Santana. Some courts

consider the threshold’s boundaries to be inflexible while others extend the

threshold a slight distance beyond the doorway. The latter approach is based on the

recognition that Payton is not a threshold-doorway case and applies only when an

arrest is made in the interior of a residence.

Certiorari should be granted to resolve the split of authority and reconcile the

tension between Payton and Santana to enable lower courts to consistently decide

where Santana’s arrest zone ends and Payton’s protective zone begins.

2. To obtain a conviction for violating a person’s civil rights under 18 U.S.C.

§242, it must be proved that the defendant acted willfully. This case presents an

important constitutional issue because the instruction defining “willfully” violates

the reasonable doubt standard by allowing a conviction if the defendant (police

officer) knew or recklessly disregarded the possibility that his seizure of an arrestee

was constitutionally unreasonable.

3. Fed.R.Evid. 608 protects a witness’s Fifth Amendment rights when the

cross-examination “relates only to the witness’s character for truthfulness.” The

question here is whether a defendant/witness who asserts the Fifth Amendment can

be cross-examined under Rule 608 on matters remote and collateral to the offenses

being tried. The Court’s decision on this issue will have a substantial impact

because Rule 608 applies to civil and criminal cases in federal courts and has been

adopted by a number of States.

ARGUMENTS

When a police officer is charged under 18 U.S.C. §242 with

violating a person’s civil rights by making an invalid,

warrantless arrest, an instruction is prejudicial if it precludes

the jury from deciding whether the arrestee was standing in the

doorway (a public place) of his residence or was standing in his

residence when he was arrested.

A. Background

As shown above (pp.2-5), there was ample probable cause for Baize’s arrest.

The evidence was not limited to petitioner’s testimony.3 Baize admitted: arguing

with petitioner; using profanity in an elevated voice late at night; the trailers had

thin walls; it was “fairly easy” to hear what went on outside; and some people

would find his language offensive. Independent of that evidence, the testimony of

Tara Geary and Deputy Allen established probable cause.4

Ms. Geary said the trailers were close together and she was inside Baize’s

trailer which had thin walls. She said Baize talked to petitioner about five minutes.

When he declined to move his car, Baize in an elevated voice told him to “fuck

off.” She heard petitioner tell Baize to come down off the porch but he refused and

went into the trailer.

Deputy Allen was about 50 to 60 feet from petitioner’s vehicle which was

parked in front of Baize’s trailer. He heard two raised voices shouting. One

Petitioner’s request that Baize come outside his trailer is consistent with officer

safety because the “risk of danger in the context of an arrest in the home is as great

as, if not greater than, it is in an on-the-street or roadside investigatory encounter.”

Maryland v. Buie, 494 U.S. 325, 333 (1990). An officer’s presence in a doorway is

fraught with danger. Indeed, “a position within the triangular area radiating from

the front door [is] known as the “fatal funnel” because of the higher risk of officers

being shot when standing there[.]” United States v. Sutton, 336 F.3d 550, 551 (7th

Cir. 2003). See also United States v. Archibald, 589 F.3d 289, 291, n.3 (6th Cir.

2009) (“officers testified that doorways present greater safety risks and are termed

‘fatal funnel[s]’ because they allow for increased vulnerability to attack.”).

See Collins v. Commonwealth, 2004 WL 315035 (Ky.Ct.App. 2004)

(unpublished) (finding probable cause for disorderly conduct in a case very similar

to petitioner’s case. “Kentucky case law is very sparse on disorderly conduct” and

thus inferences must be drawn “to determine how the Kentucky courts would apply

the statute[.]” Nails v. Riggs, 195 F.App'x 303, 312 (6th Cir. 2006).

sounded like it was giving commands. He told another officer that petitioner was

not shouting. Allen said people would be offended by cursing and trailer occupants

could be annoyed, alarmed, or offended by such behavior.

“Probable cause requires only the probability of criminal activity, not some

type of ‘prima facie’ showing.” Kinlin v. Kline, 749 F.3d 573, 578 (6th Cir. 2014)

(citation omitted). Here, Baize was shouting profanities from his porch, late at

night in a residential area. The noise was “unreasonable.” (‘“Reasonable’ in this

context depends upon the time, place, nature and purpose of the noise.”

Ky.Rev.Stat. (KRS) §525.060, Commentary. Deputy Allen heard shouting from 50

to 60 feet away and Ms. Geary heard the profanity while she was inside the trailer.

Their evidence alone established probable cause for disorderly conduct.

A peace officer’s role includes “restoring order.” Johnson v. City of

Memphis, 617 F.3d 864, 868 (6th Cir. 2010). Baize’s conduct warranted further

investigation so petitioner could ascertain the reason for such behavior, Vangel v.

Szopko, 672 F.App'x 543, 547 (6th Cir. 2016). Based on what petitioner saw and

heard, there was probable cause to arrest Baize for disorderly conduct because

Kentucky law does not require that the offender actually intend “to cause public

inconvenience, annoyance, or alarm[.]” Ky.Rev.Stat. (KRS) §525.060(1). App.40a.

The statute is violated if a person wantonly creates a risk of “public inconvenience,

annoyance, or alarm” by making “unreasonable noise.” KRS §525.060(1)(b).5

Petitioner’s actions simply reflect the “split-second” judgment that police officers

are “often forced to make.” City and County of San Francisco v. Sheehan, 135

S.Ct. 1765, 1775 (2015).6 Making unreasonable noise can create exigent

circumstances that justify a warrantless entry into a residence. United States v.

Rohrig, 98 F.3d 1506, 1509 (6th Cir. 1996).

Petitioner believed he was in hot pursuit of Baize who went into his trailer

rather than obey his order to come to him.7 Santana, 427 U.S. at 42-43; Kentucky v.

King, 563 U.S. 452, 460 (2011) (“Police officers may enter premises without a

warrant when they are in hot pursuit of a fleeing suspect”); Smith v. Stoneburner,

716 F.3d 926, 931 (6th Cir. 2013) (citation omitted) (“Under the hot pursuit

exception, an officer may chase a suspect into a private home when the criminal

has fled from a public place”).8

An arrest is valid as long as there is probable cause for one offense. Devenpeck v.

Alford, 543 U.S. 146, 153-55 (2004); Cain v. Irvin, 286 F.App'x 920, 925 (6th Cir.

2008).

Baize could be arrested without a warrant for disorderly conduct and fleeing and

evading because a Kentucky peace officer is authorized to “make an arrest

…Without a warrant when a misdemeanor, as defined in KRS §431.060, has been

committed in his or her presence[.]” KRS §431.005(1)(d).

As to hot-pursuit, petitioner’s proposed instruction (App.48a) is substantially

similar to the court’s instruction. (App.38a).

See Gutierrez v. Cobos, 2015 WL 13239104 at *12 (D.N.M. 2015) affirmed, 841

F.3d 895 (10th Cir. 2016) (district court in a 42 U.S.C. §1983 case concluded that

“the interpretation and reach of Welsh [v. Wisconsin, 466 U.S. 740 (1984)],

Santana, and Payton was not clear, and [a deputy sheriff] could reasonably have

Petitioner’s police training covered exceptions to the warrant requirement

(R.63, TR Trial, Vol.1 at 586, 591-600) and included Santana, 427 U.S. at 39-40 in

which the defendant was involved in a drug deal and was standing “in the

doorway” of her home holding a brown paper bag. She “retreated into the vestibule

of her house” when police approached. Id. at 40. The officers, who had probable

cause to arrest and were in “hot pursuit,” followed her through the door, and

caught her in the vestibule. Id. at 40-43. Santana held that the threshold of one’s

dwelling is a public place where there is no expectation of privacy. Id. at 42. See

also United States v. Watson, 423 U.S. 411 (1976) (warrantless arrest in a public

place upon probable cause does not violate the Fourth Amendment).

Petitioner’s instructor was not familiar with Talbott v. Commonwealth, 968

S.W.2d 76 (Ky. 1998) (which follows Santana) and when defense counsel

proposed to show her the case the government objected. Defense counsel

contended that the jury should be informed that case law supported petitioner’s

position that he acted within the law. (R.63, TR Trial, Vol.1 at 606-10). The

district court noted there appeared to be “competing case law” and it would “hash

that out” in the instructions. Id. at 610.

B. Petitioner’s request for an instruction based on Santana

concluded that these cases did not proscribe warrantless entry into a home when in

hot pursuit of a suspected misdemeanant.” In affirming the district court, the Tenth

Circuit said, “the law is unsettled even now as to whether an officer’s hot pursuit

of a misdemeanor suspect into a home violates the Fourth Amendment.” Id. at 904.

Defense counsel argued that under Santana the jury should be instructed to

decide whether Baize was standing in his home or in a public place (the doorway)

when he was arrested. Denial of such an instruction foreclosed a viable defense

because the jury would only be given part of the law regarding warrantless arrests.

(R.65, TR Trial, Vol.3 at 898-901).

Over counsel’s objection, the court instructed the jury (in relevant part):

Probable cause to arrest someone is present if an objectively

reasonable police officer under the circumstances would conclude that

there was a fair probability that a person had committed or was

committing a crime.

If you find that the defendant arrested Deric Baize without

probable cause to believe [he] had committed a crime, then you may

find that the arrest at issue was unreasonable.

Arrests that occur in someone’s home are presumed

unreasonable unless one of three things are true: (1) the officer gets an

arrest warrant authorized by a judge; (2) the person gives the officer

consent to enter his or her home; or (3) there is an emergency

situation—often referred to as exigent circumstances. Emergency

situations may include a serious threat to someone’s health or safety,

the imminent destruction of evidence, or the hot pursuit of a fleeing

suspect.

If you find that the defendant arrested Deric Baize in his home

without a warrant, consent, and in the absence of an emergency

situation, then you may find that the arrest at issue was unreasonable.

App. 38a, emphasis original; R. 65, TR Trial, Vol.3 at 912-17.

Defense counsel’s proposed instruction provided in relevant part:

[T]he doorway of one’s home is considered a “public place”

where one has no reasonable expectation of privacy and is thus

subject to a warrantless arrest. Even if, the arrest occurs as a result of

an officer reaching farther than the doorway area, the act of retreating

into a home does not thwart an otherwise legal arrest pursuant to

probable cause. If this is the case, the above restrictions relating to a

police officer entering a home to make an arrest do not apply.

App. 48a. Case law including Santana, 427 U.S. at 42, supports an instruction that

the doorway is a public place.9

Payton, 445 U.S. at 576, held that the Fourth Amendment “prohibits the

police from making a warrantless and nonconsensual entry into a suspect’s home

in order to make a routine felony arrest” and “searches and seizures inside a home

without a warrant are presumptively unreasonable.” Id. at 586; Welsh v. Wisconsin,

466 U.S. at 749. The district court explained that its instruction (App. 38a) was

based on Payton’s holding, 445 U.S. at 590, that “the Fourth Amendment has

drawn a firm line at the entrance to the house [and] [a]bsent exigent circumstances,

that threshold may not reasonably be crossed without a warrant.” (R.65, TR Trial,

Vol.3 at 925-27). But without petitioner’s proposed Santana-based instruction the

See United States v. Gori, 230 F.3d 44, 54 (2d Cir. 2000). (“No one in a place

opened to public view can expect privacy in that place and at that time, whether the

suspect is on the threshold, in a vestibule or at the far end of an exposed interior

room”); United States v. Vaneaton, 49 F.3d 1423, 1427 (9th Cir.1995), (defendant

who opened motel room door in response to police officers’ knock “exposed

himself in a public place”); United States v. Herring, 582 F.2d 535, 543 (10th Cir.

1978) (entrance to motel room was not a “private place”); United States v. Botero,

589 F.2d 430, 432 (9th Cir. 1978) (under Santana the doorway of residence is a

public place); United States v. Crapser, 472 F.3d 1141, 1148 (9th Cir. 2007)

(“where officers use no force, threats, or subterfuge, a suspect’s decision to open

the door exposes him to a public place, and the privacy interests protected by

Payton are not violated”); and United States v. Thomas, 430 F.3d 274, 275-76 (6th

Cir. 2005) (defendant who answered officers’ knock on his door and was asked to

come outside to talk to investigators, did not exit the house as a result of physical

force or any other conspicuous show of authority by the police).

jury had to believe that Payton’s presumption was unrebuttable and the illegality of

Baize’s arrest was a fait accompli.

In upholding the district court’s ruling, the Sixth Circuit stated (App. 11a):

Defendant’s body camera shows Baize open his inner door, leaving

the screen door shut. Defendant was unable to cross the threshold and

touch Baize without opening the screen door himself (which he did),

and all the while Baize remained several feet removed from his

threshold, inside of his home. Baize was not exposed to the same

degree of public view, speech, hearing, and touch as though he was on

his porch. And we have presumed that a person who is near, but

interior to, his doorway is entitled to the benefit of Payton’s

‘threshold’ rule.

But Payton does not articulate a “threshold rule” because it does not involve

a doorway or threshold arrest. Payton involves a warrantless entry into the interior

of a home and does not involve exigent circumstances. Id. 445 U.S. at 583.

Moreover, the Sixth Circuit’s presumption about Payton’s “threshold rule” not

only nullifies Santana but it also highlights the difficulty of reconciling Payton and

Santana which inevitably leads to inconsistent results.

C. The lower courts improperly made findings of fact

Courts citing Santana, use the words “threshold” and “doorway”

interchangeably.10 Here, the district court considered the threshold and doorway to

See e.g., State v. Shellenbarger, 140 Idaho 185, 188, 90 P.3d 935, 938 (Ct.App.

2004); (defendant “was standing in the open doorway of the motel” i.e., “a public

place”); State v. Anderson, 163 Wis.2d 1093, 474 N.W.2d 529, n.1 (Ct.App. 1991)

(Table – unpublished) (defendant arrested in doorway of his apartment); Talbott v.

Commonwealth, 968 S.W.2d at 81 (when defendant was arrested she “was standing

be different locations and concluded that a “reasonable jury” would not find that

Baize was “in the doorway versus the house.” (R.65, TR Trial Vol.3 at 930-31).

Such fact-finding, however, is within the exclusive province of the jury and the

district court precluded the jury from deciding the factual issue of whether Baize

was standing in his home (Payton) or in a public place (the doorway-Santana)

when he was arrested. The Sixth Circuit’s presumption regarding Payton’s

“threshold rule” is no less an improper finding of fact and unjustifiably extends

Payton’s reach. Petitioner’s proposed instruction (App.48a) would have allowed

the jury to resolve the factual issue of whether Payton or Santana governed.

D. Split of Authority – Difficulty in Reconciling Payton and Santana

[C]ourts across the country have had difficulty reconciling

Santana and Payton with respect to warrantless doorway arrests and

… some courts have held that the police may effect a warrantless

arrest when an individual voluntarily opens his door in response to a

police officer’s knock.

Smith v. State, 72 Md.App. 450, 466, 531 A.2d 302, 310 (1987) (citations omitted).

See also Sparing v. Village of Olympia Fields, 266 F.3d 684, 689 (7th Cir. 2001)

(“The Supreme Court has already considered the question of dividing outside from

in the doorway of her home, a public place where she had no reasonable

expectation of privacy”); Lawson v. State, 299 Ga.App. 865, 870, 684 S.E.2d 1, 5

(2009) (“one who is in the threshold of his dwelling is in a public place and not

within the dwelling”); Vaneaton, supra, 49 F.3d at 1425.

inside when the home is involved, although not completely resolving the question

in [] Santana”).11 The Eleventh Circuit has said that no cases from this Court

have resolved the question whether Payton or Santana applies to the

arrest of a person who, while standing firmly inside the house, opens

the door in response to a knock from the police and is then pulled

outside the unambiguous physical dimensions of the home.

McClish v. Nugent, 483 F.3d 1231, 1249 (11th Cir. 2007). See also People v.

Garvin, 30 N.Y.3d 174, 188, 88 N.E.3d 319, 346, 66 N.Y.S.3d 161, 210 (2017)

(Wilson, J. dissenting) (emphasis added) (noting Payton’s “failure to grapple

squarely with the legacy of” Santana and that one “of the most vexing questions”

on this issue is “where is the threshold”). That “vexing question” is at the root of

the courts’ difficulty in reconciling Payton and Santana. See e.g., State v.

Mikkalson, 2008 WL 5215866, at *3 (Minn.Ct.App. 2008) (unpublished) (citations

omitted) (emphasis added). “Although ‘threshold’ is not explicitly defined, the

facts in [Minnesota Supreme Court] cases following Santana indicate that the

‘threshold’ extends from the frame of the door to a short distance inside the

house.” See also Vaneaton, 49 F.3d at 1430, n.9 (Tashima, J., dissenting).

“[A] number of issues were left unanswered by the Payton court, including (a)

its effect on cases which, relying on United States v. Santana, [citation omitted]

upheld nonexigent warrantless arrests initiated at the threshold when a suspect

voluntarily opens the door to the police[.]” Watts v. State, 305 N.W.2d 860, 862

fn.1 (Minn. 1981) (citation omitted). “Payton and Welsh involved circumstances

where a resident of a home voluntarily opened the door, and yet the Supreme Court

did not weigh this as a factor in determining the lawfulness of the warrantless

entries in those cases.” Strutz v. Hall, 308 F.Supp.2d 767, 783 (E.D. Mich. 2004).

Qualified immunity cases illustrate the difficulty in reconciling Santana and

Payton. See e.g., Stanton v. Sims, 571 U.S. 3, 6 (2013) (collecting cases) (“federal

and state courts nationwide are sharply divided on the question whether an officer

with probable cause to arrest a suspect for a misdemeanor may enter a home

without a warrant while in hot pursuit of that suspect.”). To overcome a qualified

immunity defense, “a plaintiff must show that …(1) the defendant deprived him of

a constitutionally protected right, and (2) the right was ‘clearly established’ at the

time of the violation.” Gradisher v. City of Akron, 794 F.3d 574, 583 (6th Cir.

2015) (citation omitted). See also Pearson v. Callahan, 555 U.S. 223, 231 (2009);

Vangel v. Szopko, 672 F.App'x at 545.

In Brenay v. Schartow, 709 F.App'x 331, 333 (6th Cir. 2017), police officers

were granted summary judgment on a qualified immunity defense in a §1983 case.

The police went to Brenay’s home in response to Brenay, Jr.’s alleged violation of

a protective order. Brenay, Sr. answered the door when the police rang the bell and

agreed to get his son. When they returned, Brenay, Sr. opened the glass storm door

but remained inside the residence. Brenay, Jr. “stood behind his father, six inches

from the door, a foot from the outside, and a ‘few feet’ from Officer Sierras.” Id. at

332. Since Brenay, Jr. declined to go outside, the officers questioned him “through

the doorway.” Id. Brenay Sr. became frustrated with Sierras’s attitude and let go of

the storm door. As the door swung shut, Brenay, Jr. “retreated back into the

house[.]” Id. at 332. Sierras “lunged” through the doorway and grabbed Brenay, Jr.

by the wrist. Sierras continued into the hallway. Brenay, Jr. began to struggle and

was eventually subdued and handcuffed by the officers. Id.

Whether the officers were entitled to qualified immunity depended on

whether the Brenays’ constitutional right against unlawful entry was “clearly

established.” Brenay, 709 F.App'x at 333.12 Only the “hot pursuit” exception to the

warrant requirement was viable in Brenay and whether it applied

depends on whether Brenay, Jr. was standing in a public place when

Officer Sierras told him that he was under arrest. We know that

Brenay, Jr. was standing in the foyer, six inches from the open

doorway, for most of his interaction with the officers.

Id. at 334. Citing Santana’s holding 427 U.S. at 42, that a person who stands in the

doorway is in a public place, the Sixth Circuit explained,

this circuit has not addressed whether a person who opens his door

voluntarily to talk to police loses his reasonable expectation of privacy

within the meaning of Santana. Our sister circuits are split on the

issue. See Wayne LaFave, Search & Seizure: A Treatise on the Fourth

Amendment §6.1(e) (5th ed. 2016). And how the analysis might

change when the person is standing six inches back from the doorway

is even less settled.

“A Government official’s conduct violates clearly established law when, at the

time of the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently clear’

that every ‘reasonable official would have understood that what he is doing

violates that right.’” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) quoting

Anderson v. Creighton, 483 U.S. 635, 640 (1987). “[F]or a constitutional right to

be clearly established … the question is whether the defendant[] had ‘fair warning’

that [his] actions were unconstitutional.” Cummings v. City of Akron, 418 F.3d 676,

687 (6th Cir. 2005). See also United States v. Lanier, 520 U.S. 259, 270-71 (1997).

Brenay, 709 F.App'x at 334. “[H]ow Santana would apply to this case is hardly

‘beyond debate.’ That the officers violated the Brenays’ constitutional rights when

they entered the Brenays’ home would not be clearly established.” Id. at 334-35.

See also Vaneaton, 49 F.3d at 1425 (upheld warrantless arrest of defendant who

answered police knock on motel room door and “was standing at the doorway but

just inside the threshold”) and United States v. Mason, 661 F.2d 45, 47 (5th Cir.

1981) citing Santana (defendant “was arrested at the door of his home,” i.e., a

“public place” in which he “had no protectable expectation of privacy”).

In Hameline v. Wright, 2008 WL 2696920, *2 (W.D.Mich. 2008)

(unpublished) Hameline’s vehicle was found in a ditch. Deputy Wright went to

Hameline’s home to investigate. Wright opened the glass storm door and knocked

on the structural door, which opened into the house. Hameline opened the

structural door and Wright, who smelled intoxicants, put his foot inside the door to

prevent it from being closed. Wright questioned Hameline who declined to come

out of the house and tried to close the door which “bounced off” Wright’s foot. As

Hameline “attempted to back-away from the door,” Wright grabbed his wrist and

“was drawn further into the house” as Hameline “moved away from the door.”

Hameline was handcuffed and charged with “operating while intoxicated.”

In concluding that Wright was “entitled to qualified immunity with regard to

the entry[,]” the court noted that “the holdings of Vaneaton and particularly Mason

would suggest to a reasonable person that Deputy Wright did not violate the Fourth

Amendment when he reached into [Hameline’s] house to grab [his] wrist.”

Hameline, Id. at *9. See also Lawrence v. Bloomfield Township, 313 F.App'x 743,

748 (6th Cir. 2008) (no violation of constitutional rights where arrestee was

“physically and belligerently denying [police] access” to home and police pulled

him from doorway).

Brenay, Mikkalson, Hameline, and Vaneaton show that the boundaries of a

threshold are not absolute for purposes of a warrantless arrest and that doorway

arrest cases present a jury with a question of fact whether Payton or Santana

governs. Thus, it cannot be found that petitioner’s conduct violated “clearly

established law” when he seized Baize in the doorway of the trailer. Baize’s

location presented a question of fact for a jury because reasonable people can view

the videotape from petitioner’s body camera (GEX 3A) and decide whether Baize

is standing in Santana’s arrest zone or in Payton’s protective zone. (GEX 3A,

00:21-01:05). That factual issue could have been properly resolved if petitioner’s

proposed Santana instruction had been given. App.47a-48a.

McClish v. Nugent, supra, offers an insightful analysis of the Payton –

Santana conflict and it underscores the difficulty courts have in reconciling those

cases because the Eleventh Circuit notes that “the law of other circuits might have

permitted an arrest under facts similar to those presented here.” McClish, 483 F.3d

at 1249 citing Vaneaton, supra, 49 F.3d at 1426–27 and United States v. Carrion,

809 F.2d 1120, 1127–28 (5th Cir. 1987) (defendant’s “arrest occurred as he stood

in the doorway of his hotel room” where he “had no protectable expectation of

privacy”).13 Indeed, the Ninth Circuit noted in United States v. Quaempts, 411 F.3d

1046, 1048 (9th Cir. 2005) that “[i]n Vaneaton, we extended” Santana and the

Vaneaton majority “concluded that when a person opens the door in response to a

police knock, and thereby stands on the threshold of the home, that person is no

longer in a private place.” “The critical fact in both Santana and Vaneaton was that

the defendant was not in the house, but in the doorway and hence in a public, not a

private place.” Quaempts, Id.

The Florida Supreme Court has noted there is

a line of cases which have held … that an arrest at or in the threshold

of a residence does not involve an entry and, therefore, does not

implicate Payton considerations. These cases have characterized the

threshold area as a public place wherein a warrant is not required to

effectuate a valid arrest.

Byrd v. State, 481 So.2d 468, 472 (Fla. 1985) (collecting cases). Thus, there are not

not only unresolved issues in applying Santana and Payton but there is also a split

of authority on their resolution.

See also United States v. Whitten, 706 F.2d 1000, 1015-16 (9th Cir. 1983)

overruled on other grounds, see United States v. Rodriguez-Rodriguez, 441 F.3d

767, 771 n.2 (9th Cir. 2006) (defendant, who answered police officer’s knock on

door and was arrested in doorway of hotel room was in a public place).

In McClish, sheriff’s deputies went to McClish’s trailer to arrest him.

Deputy Terry knocked on the door and McClish said when he opened the door,

Terry “reached into the house, grabbed him, and forcibly pulled him out onto the

porch.” 483 F.3d at 1235-36. McClish claimed under §1983 that he was subjected

to an illegal warrantless arrest. Id. at 1236-37. Although the arrest was held to be

unlawful because “Terry crossed Payton’s firm line and physically hauled McClish

out of his home” id. at 1248, Terry was still entitled to qualified immunity, id. at

1249, because “[i]n light of Santana … and since McClish was standing within

arm’s reach of an officer at the front door, we cannot say that the illegality of

McClish’s arrest was clearly established at the time of the arrest.” McClish, 483

F.3d at 1248-49. The court concluded that:

in light of the apparent tension between Santana and Payton, we have no

basis upon which to conclude that a reasonable law enforcement officer

fairly would have known that the arrest alleged by McClish, within the

house yet within reach of an officer standing outside, was unlawful.

Id. at 1249 (emphasis original).14

In a concurring opinion, Judge Anderson explained that Payton and Santana

are fundamentally different. Payton’s “narrow” issue was “whether and under what

circumstances an officer may enter a suspect’s home to make a warrantless arrest.”

McClish, 483 F.3d at 1254 (Anderson, J., concurring) quoting Payton, 445 U.S. at

“[A] reasonable officer is not required to foresee judicial decisions that do not

yet exist in instances where the requirements of the Fourth Amendment are far

from obvious.” Kisela v. Hughes, 584 U.S. ___ , ___, 138 S.Ct. 1148, 1154 (2018).

575. Payton “was not a doorway case” because it “involved officers penetrating

well into the interior of a suspect’s home, not simply reaching through an opened

door.” Id. Santana, however,

was a doorway arrest case, and is the Supreme Court’s last and only word

on the Fourth Amendment rule at the opened door. It explicitly rejected a

test at the threshold that would depend on the plane of the door.

McClish, 483 F.3d at 1254 (Anderson, J., concurring) (emphasis added). Although

the Court “specifically used the word ‘threshold’” in Santana, 427 U.S. at 42, it

declined to accord that concept any significance in defining the scope

of the warrant requirement; and, even though Santana’s body was

partially inside that property-law threshold, adopted an expectationof-privacy test and held that the arrest would have been

constitutional… Santana therefore states the proper test at the

voluntarily opened doorway.

McClish, 483 F.3d at 1254 (Anderson, J., concurring).15 Payton said “nothing

specific about arrests at the opened doorway” and “did not overrule Santana.” Id.

at 1255, 1256. Moreover, Payton’s language about “entrance” and “threshold” was

“used rhetorically to refer to ‘the home.’” Id. at 1258. “Payton therefore cannot be

read to establish a disfavored bright-line rule at the plane of the opened doorway,

especially in light of Santana’s countervailing holding that is directly on point.” Id.

A threshold is “the plank, stone, or piece of timber that lies under a door” or “the

place or point of entering or beginning.” https://www.merriam-webster.com/

dictionary. A doorway can also be described as “the place or point of entering” and

petitioner’s case shows the spatial boundary of a threshold is broader than the

definition suggests.

Payton simply did not speak to the doorway arrest scenario, and

the rhetorical use of the word ‘threshold’ should not be relied upon as

having decided the question of the appropriate test at the opened

doorway. Payton nowhere opined about whether a plane-of-the-door or

an expectation-of-privacy test governs at the opened doorway. The

Payton holding is thus essentially neutral with respect to the proper

rule for doorway arrests. Santana … explicitly rejected a property law,

plane-of-the-door rule, and said that a warrantless arrest is proper so

long as the suspect has no expectation of privacy. It therefore contains

the controlling principle of law in the doorway arrest situation.

McClish, 483 F.3d at 1255 (Anderson, J., concurring). Judge Anderson also noted

that “most courts considering the doorway arrest situation have followed the

Santana rule.” Id. at 1262 (citing cases). Although Santana permitted a warrantless

arrest at the threshold, “common sense tells us that an officer conducting an

arrest at the literal threshold would necessarily cross the plane of the door in a

great many threshold arrests.” Id. at 1256, n.5 (Anderson, J., concurring)

(emphasis added). Santana authorizes such an arrest. See Mikkalson, Brenay,

Hameline, and Vaneaton, all supra. See State v. Shellenbarger, 90 P.3d at 938 n.1.

Shellenbarger claims that he was two to three feet inside the

motel room. However, the record as to his position within the

doorway is unclear. The officers testified that they were outside the

door, two to three feet from Shellenbarger. If the officers were

standing two feet from the threshold, Shellenbarger would have been

either on the threshold or within a foot of the threshold. The arresting

officer testified that he took one step into the doorway, placing him

into the doorway a distance equal to half the length of the door.

Regardless of whether Shellenbarger was on the threshold or two to

three feet from the threshold, he was in the open doorway and, under

Santana, was in a public place.

Petitioner has shown that in criminal cases, like qualified immunity cases,

the law regarding warrantless threshold-doorway arrests is not “clearly

established.” Thus, it cannot be found that Baize’s arrest violated his constitutional

rights. In qualified immunity cases civil liability cannot be predicated on conduct

that does not violate “clearly established” law. It follows that in criminal cases,

where guilt must be proved beyond a reasonable doubt, a conviction cannot be

based on conduct which does not violate “clearly established” law.

Whether an arrest violates a “clearly established” constitutional right is a

question of fact. But here, the jury was precluded from deciding the factual issue of

whether Baize was in Santana’s arrest zone or Payton’s protective zone because

the district court’s instruction (App.38a-39a) was based solely on Payton despite

evidence that supported petitioner’s proposed Santana instruction. App.47a-48a.

Certiorari should be granted because petitioner’s case will allow the Court to

resolve the split of authority and the difficulty in reconciling Santana and Payton.

The Court’s guidance will ensure consistency in lower court rulings on warrantless

threshold–doorway arrests and will assist law enforcement officers who often have

to make a split-second judgment whether such an arrest is justified.

II.

A jury instruction defining “willfully” violates the reasonable

doubt standard by allowing a police officer to be convicted

under 18 U.S.C. §242 if he knew or recklessly disregarded

the possibility that his seizure of an arrestee was

constitutionally unreasonable.

A. Background

“[W]illfulness is an element of an offense under 18 U.S.C. §242.” United

States v. Sease, 659 F.3d 519, 525 (6th Cir. 2011). The jury was instructed that:

A person acts willfully if he acts voluntarily and intentionally,

with the specific intent to do something the law forbids. You may find

that the defendant acted willfully if you find that he acted in open

defiance or reckless disregard of Deric Baize’s right to be free from

unreasonable seizure. In other words, the defendant acted willfully if

he seized Deric Baize knowing or recklessly disregarding the

possibility that the seizure was constitutionally unreasonable.

App. 42a (emphasis added). Defense counsel proposed the following

instruction defining “willfully.” App. 44a.

The word ‘willfully’ as that term is used in the indictment or in

these instructions, means that the act was committed voluntarily and

purposely, with the specific intent to do something the law forbids;

that is with bad purpose either to disobey or disregard the law.

The court’s instruction is flawed because: 1) an act cannot be intentional and

reckless; and 2) it relieved the government of proving guilt beyond a reasonable

doubt because petitioner could be convicted if he knew or recklessly disregarded

the possibility that his seizure of Baize was constitutionally unreasonable.

The Sixth Circuit held that the error was not preserved for review because

“defense counsel made a blanket, general objection to any instruction on

willfulness that did not mirror the one he proposed.” App. 15a (emphasis

original).16 The objection, however, was coupled with a specific instruction that

was substantially different from the court’s instruction. (R.65, TR Trial Vol.3 at

923-24). Thus, Fed.R.Crim.Proc. 30(d)’s objective was met because the district

court was aware of the objection and the proposed instruction.

B. Acting in open defiance or reckless disregard

“Whoever under color of any law...willfully subjects any person...to the

deprivation of any rights, privileges, or immunities secured or protected by the

Constitution or laws of the United States” violates 18 U.S.C. §242. App.49a.

A person acts ‘willfully’ for purposes of section 242 when he

acts with ‘a specific intent to deprive a person of a federal right made

definite by decision or other rule of law,’ or ‘in open defiance or in

reckless disregard of a constitutional requirement which has been

made specific and definite.’

United States v. House, 684 F.3d 1173, 1199–1200 (11th Cir. 2012) quoting

Screws v. United States, 325 U.S. 91, 103, 105 (1945).17 Although “willful” may

be construed to mean “reckless disregard,” see House, supra, those circuits that

have instructions defining “willfully” or instructions on §242 do not use the word

Fed.R.Crim.Proc. 30(d) provides in relevant part, A party “must inform the court

of the specific objection and the grounds for the objection before the jury retires to

deliberate.”

Acting willfully requires a defendant to have the purpose of depriving a person

of a specific, constitutional right. United States v. Shafer, 384 F.Supp. 496, 500

(N.D. Ohio 1974) citing Screws, 325 U.S. at 101. “Typically, a §242 defendant has

pre-existing malice toward his victim…” Shafer, Id. The government has not

shown that to be the case here.

“reckless” in those instructions. See Fifth Circuit Pattern Jury Instructions,

Criminal, §1.38 (2015):

[W]illfully… means that the act was committed voluntarily and

purposely, with the specific intent to do something the law forbids;

that is to say, with bad purpose either to disobey or disregard the law.

In defining “willfully” as an element of a §242 violation, the Fifth Circuit’s Pattern

Instructions inform the jury:

[]That the defendant acted willfully, that is, that the defendant

committed such act or acts with a bad purpose or evil motive to

disobey or disregard the law, specifically intending to deprive the

person of that right…

Id. at §2.12.18

The absence of the word “reckless” in the pattern instructions suggests that a

willful act cannot be a reckless act. Moreover, Instruction 15 (App. 42a) includes

multiple mental states (willfully, intentionally, knowing, and recklessly) that are

likely to cause confusion and raise a question whether there was unanimous

See also Third Circuit Model Jury Instructions, Criminal, §5.05 (2009) defining

“willfully;” Eighth Circuit Model Jury Instructions, Criminal, Instruction 7.02

(2014) – defining “willfully;” Tenth Circuit Pattern Jury Instructions, Criminal,

Instruction 2.17 – Violation of 18 U.S.C. §242 (2011); and Eleventh Circuit

Pattern Jury Instructions, Criminal, Instruction O8 – Violation of 18 U.S.C. §242

(2016). Notwithstanding House’s reference to Screws, both supra, in defining

“willfully,” the Eleventh Circuit Pattern Jury Instructions, Criminal, Instruction

B9.1A (2016) states in relevant part, “The word ‘willfully’ means that the act was

committed voluntarily and purposely, with the intent to do something the law

forbids; that is, with the bad purpose to disobey or disregard the law.” The Sixth

Circuit’s Pattern Jury Instructions (Chap. 2.05) do “not recommend any general

instruction defining the term ‘willfully,’” Committee Commentary 2.05.

agreement (Fed.R.Crim.Proc. 31(a)) or even a majority agreement on the mental

state? Johnson v. Louisiana, 406 U.S. 356 (1972); Apodaca v. Oregon, 406 U.S.

404 (1972). The need for clarity could explain why circuits that have instructions

defining “willfully’ or have §242 instructions do not use the word “reckless.”

Kentucky law illustrates the point because acting intentionally requires a

conscious objective to achieve a result; while one who acts knowingly is aware of

the nature of his conduct. See KRS §501.020(1)(a) and (b). A person acts

recklessly, however, when he fails to perceive the risk that a certain result will

occur. See KRS §501.020(3). Thus, an intentional or knowing act cannot be a

reckless act and Instruction 15 is prejudicial because it allows a conviction on

inherently contradictory mental states. The contradiction will persist as long as

Screws, 325 U.S. at 105, is read to allow a §242 conviction to be based on

“reckless disregard.” Screws, 325 U.S. at 105. Thus, Screws should be revisited.

But there is a more fundamental, constitutional problem with Instruction 15.

C. The possibility that the seizure was constitutionally unreasonable

The Due Process Clause requires that “[g]uilt in a criminal case must be

proved beyond a reasonable doubt[.]” Brinegar v. United States, 338 U.S. 160, 174

(1949); In re Winship, 397 U.S. 358, 364 (1970). Instruction 15 is unconstitutional

because it allowed petitioner to be convicted if he seized Baize “knowing or

recklessly disregarding the possibility that the seizure was constitutionally

unreasonable.” App. 42a (emphasis added). The government was thereby relieved

of its burden of proving guilt beyond a reasonable doubt because a guilty verdict

could be returned on the possibility that the arrest was unconstitutional.

Petitioner’s proposed instruction defining “willfully” (App. 44a) should have

been given because it was “substantively correct” and was “not substantially

covered in the charge given to the jury.” United States v. Bennett, 874 F.3d 236,

242–43 (5th Cir. 2017) (citations and internal quotation marks omitted). The

failure to give the proposed instruction “seriously impair[ed] the [petitioner’s]

ability to present effectively a particular defense” because he had to defend himself

against the possibility that he committed a crime. Bennett, Id.

Instruction 15 precludes a law enforcement officer from acting legally

because there is always a possibility that a court or legislative body could change

the law. (See n.14 on p.23 of this petition). The instruction is prejudicial because it

is not the “possibility” that the seizure was constitutionally unreasonable. Rather,

the seizure must actually be unconstitutional and the instruction must clearly

convey that point to the jury because the defendant must act with “an intent to

deprive a person of a right which has been made specific either by the express

terms of the Constitution or laws of the United States or by decisions interpreting

them.” Screws, 325 U.S. at 104; House, 684 F.3d at 1202; United States v. Hayes,

589 F.2d 811, 820 (5th Cir. 1979). To act “willfully” the defendant must in fact

violate a constitutional right that is “specific and definite.”19 That cannot be the

case where, as here, petitioner’s conduct does not violate a “clearly established”

constitutional right.20

The Sixth Circuit cited the district court’s Instruction 12 to reject petitioner’s

argument. App.16a. That instruction states in pertinent part that the government

had to prove petitioner deprived Baize of his right

to be free from unreasonable seizures, which includes the right not to

be arrested without probable cause, the right to be free from

warrantless arrest in one’s home absent consent or exigent

circumstances, and the right to be free from malicious prosecution.

App. 38a. According to the Sixth Circuit, Instruction 12 required the jury “to

specifically find that Baize’s rights were actually violated, which they did.”

App.16a. But, “[a] jury is presumed to follow its instructions,” Blueford v.

Arkansas, 566 U.S. 599, 606 (2012) (citation omitted); Evans v. Michigan, 568

U.S. 313, 328 (2013). So which instruction did the jury follow? If it were

Instruction 15, petitioner could have been convicted if he seized Baize “knowing or

See United States v. Figueroa, 729 F.3d 267, 277-78 (3d Cir. 2013); United

States v. Bradley, 196 F.3d 762, 769 (7th Cir. 1999); United States v. Brugman,

364 F.3d 613, 616 (5th Cir. 2004); and United States v. Mohr, 318 F.3d 613, 619

(4th Cir. 2003).

The scarcity of Kentucky law on disorderly conduct (Nails, supra,) and doubt

that petitioner’s conduct violated “clearly established” law (Payton - Santana)

militate against a finding that he acted willfully. Activating his body camera

likewise refutes the notion that for purposes of §242 he acted willfully or with a

“pre-existing malice” toward Baize. Shafer, 384 F.Supp. at 500.

recklessly disregarding the possibility that the seizure was constitutionally

unreasonable.” App. 42a (emphasis added).

The contradiction between Instructions 12 and 15 undermines the integrity

of the verdict and violates the constitutional requirement that guilt must be proved

beyond a reasonable doubt. Instruction 15 is plainly erroneous because it conflicts

with a fundamental, constitutional right; affected petitioner’s substantial rights; and

“seriously affected the fairness, integrity or public reputation of judicial

proceedings.” United States v. Olano, 507 U.S. 725, 732 (1993); Puckett v. United

States, 556 U.S. 129, 135 (2009).

The issue here implicates a core principle of constitutional law that is likely

to recur in §242 prosecutions. This case also shows the need for the Court to

decide whether “reckless disregard” remains an appropriate mental state on which

to base a §242 conviction. Certiorari should therefore be granted.

III.

Fed.R.Evid. 608 allows a defendant-witness to assert his

Fifth Amendment right against self-incrimination when the

government seeks to cross-examine him on matters that are

remote and collateral to the offenses for which he is on trial.

A. Background

In 2009, petitioner sought employment with the Audubon Park Police. He

indicated on a pre-employment questionnaire that he lied twice (in 1991 and 1998)

to internal affairs (IA) investigators when he was a Louisville police officer. When

the government sought to cross-examine petitioner on that matter, he contended

that under Fed.R.Evid. 608(b) he did not waive his Fifth Amendment right by

testifying. He also argued that his statements to the IA investigators were

inadmissible because they involved remote and collateral matters; were not

relevant to his direct testimony; and should be excluded under Fed.R.Evid. 403.

(R.59, TR CX Corder at 408, 413-18; R.64, TR Trial, Vol.2 at 852-55; R.65, TR

Trial, Vol.3 at 871-99).

The government argued that petitioner had no Fifth Amendment rights

because he could only be held accountable for a misdemeanor under Kentucky law

and the one-year statute of limitations had expired.21 But the government failed to

show that petitioner’s criminal exposure was limited to a misdemeanor because it

neither identified the offense to which it referred nor showed the nature or

substance of his lies. Since petitioner’s criminal exposure was unknown, he argued

he had a viable Fifth Amendment right. (R.59, TR CX Corder at 416-17).

The district court citing Brown v. United States, 356 U.S. 148 (1958) ruled

that petitioner waived his Fifth Amendment right by testifying and that his

credibility was relevant to his testimony and the issues that were to be submitted to

the jury. Thus, petitioner testified that when he was a Louisville police officer he

KRS §500.050(2) states: “Except as otherwise expressly provided, the

prosecution of an offense other than a felony must be commenced within one (1)

year after it is committed.”

lied on two occasions to IA investigators. (R.59, TR CX Corder at 413, 418-19,

423-24; R.65, TR Trial, Vol.3 at 871, 883-84, 889).

The Sixth Circuit upheld the district court’s ruling. App. 22a. It viewed “the

chief issue” as petitioner’s belief in the veracity of the charges that he brought

against Baize, “and he voluntarily took the stand to vouch for that belief.” Id. The

court reasoned that petitioner’s “willingness to lie to other police departments to

protect himself from allegations of misconduct is relevant to, and probative of,

whether he would lie” to the Bullitt County Sheriff’s Department when it

investigated the propriety of Baize’s arrest. Id. at 22a-23a.

The Sixth Circuit misapplied Fed.R.Evid. 608(b) and thereby

violated petitioner’s Fifth Amendment rights.

If the defendant in a criminal case takes the stand and “testifies in his own

defense his credibility may be impeached and his testimony assailed like that of

any other witness …” Brown, 356 U.S. at 154. See also Mitchell v. United States,

526 U.S. 314, 321 (1999) (citation omitted) (“[A] witness, in a single proceeding,

may not testify voluntarily about a subject and then invoke the privilege against

self-incrimination when questioned about the details.”). However, “the breadth of

[the Fifth Amendment] waiver is determined by the scope of relevant crossexamination,” Brown, 356 U.S. at 154-55, and, according to the Advisory

Committee Notes for Rule 608(b) merely by testifying a witness does not waive

“his right to foreclose inquiry on cross-examination into criminal activities for the

purpose of attacking his credibility.” Moreover, Rule 608(b) limits Brown’s scope

and any purported Fifth Amendment waiver. The rule provides in relevant part:

Except for a criminal conviction under Rule 609, extrinsic

evidence is not admissible to prove specific instances of a witness’s

conduct in order to attack or support the witness’s character for

truthfulness. But the court may, on cross-examination, allow them to

be inquired into if they are probative of the character for truthfulness

or untruthfulness of: (1) the witness …

By testifying on another matter, a witness does not waive any

privilege against self-incrimination for testimony that relates only to

the witness’s character for truthfulness.

That last sentence “constitutes a rejection of the doctrine... that any past

criminal act relevant to credibility may be inquired into on cross-examination,”

Fed.R.Evid. 608(b), Advisory Committee Notes; United States v. McClurge, 311

F.3d 866, 874 (7th Cir. 2002), and it protects petitioner’s Fifth Amendment rights

regarding his statements to the IA investigators because his trial testimony was

about another matter, i.e., whether he deprived Mr. Baize of his constitutional

rights. Thus, any testimony about petitioner’s statements to IA investigators

“relates only to [his] character for truthfulness.”22

To demonstrate that petitioner vouched for his credibility and was properly

cross-examined about the prior statements, the Sixth Circuit pointed to his direct

“In 2003, Rule 608(b) was amended by substituting ‘character for truthfulness’

in place of ‘credibility.’ The amendment intended to clarify that the absolute

prohibition on extrinsic evidence applies only when the sole reason for proffering

that evidence is to attack or support the witness’ character for truthfulness.” United

States v. Epstein, 426 F.3d 431, 439, n.4 (1st Cir. 2005) citing United States v.

Abel, 469 U.S. 45 (1984).

examination in which he denied lying on the arrest citation. Petitioner stated,

“What I wrote down was exactly what I observed.” He denied there was anything

false in the citation and said it described “exactly what [Baize] did.” App.21a;

R.65; (TR Trial, Vol.2 at 841). Petitioner was not vouching for his credibility, he

was simply stating the facts he recounted. The Sixth Circuit’s view effectively

nullifies the Fifth Amendment protection embedded in Rule 608(b). Since “the

possibilities of abuse are substantial” when dealing with Rule 608(b) evidence,

courts must consider the remoteness of the evidence and the danger of unfair

prejudice under Fed.R.Evid. 403. Advisory Committee Notes, Rule 608(b). See

also United States v. Beltran-Garcia, 338 F.App'x 765, 770–71 (10th Cir. 2009);

United States v. Rosario Fuentez, 231 F.3d 700, 705 (10th Cir. 2000).

Petitioner’s case shows more than a possibility of abuse because any

testimony about lies to Louisville Police IA investigators in 1991 and 1998

“relate[d] only to [petitioner’s] character for truthfulness” and he still had a viable

Fifth Amendment right because the nature and substance of those lies was never

made known by the government. Thus, it was not shown that the prior

untruthfulness bore any similarity to the current charges and that petitioner was

subjected to “relevant cross-examination.” Brown, 356 U.S. at 155.

Remoteness is a relevant factor in assessing the probative value of evidence

sought to be admitted under Rule 608(b). United States v. Jackson, 882 F.2d 1444,

1448 (9th Cir. 1989); United States v. Holden, 557 F.3d 698, 703 (6th Cir. 2009)

(evidence of 9 year old events was inadmissible); United States v. Davis, 524

F.App'x 835, 840 (3d Cir. 2013) (10 year old criminal charge held too remote);

Johnson v. Elk Lake School District, 283 F.3d 138, 145, n.2 (3d Cir. 2002)

(remoteness of 9 year old incident “substantially diminished its probative value.”).

The Sixth Circuit here said that “temporal remoteness reduces the value of

the evidence” offered under Rule 608(b) but the “probative value is bolstered by

the similarities the older evidence has with the instant case.” App. 23a. Those

similarities are unknown because the government failed to show the nature and

substance of the statements petitioner made to the IA investigators. Thus, it cannot

be found that statements made 18 and 25 years before petitioner’s trial had any

probative value. Remoteness warranted exclusion of that evidence. And even if the

evidence had any probative value, it was substantially outweighed by the danger of

unfair prejudice not only because it is inherently prejudicial but also the jury could

not properly assess its weight and credibility since the nature and substance of

those remote statements were unknown.

Petitioner’s case shows the need for guidance on “the breadth” of a Fifth

Amendment waiver and “the scope of relevant cross-examination” under Rule

608(b). Brown, 356 U.S. at 154-55. The issue is important to the administration of

justice because the application of a rule of evidence adopted by many states as well

as federal courts undermines the exercise of a fundamental, constitutional right.23

CONCLUSION

For the foregoing reasons, the Court should grant this petition.

Respectfully submitted,

___________________

Frank W. Heft, Jr.

Counsel of Record

Donald J. Meier

Office of the Federal Defender

200 Theatre Building

629 Fourth Avenue

Louisville, Kentucky 40202

(502) 584-0525

Frank_Heft@fd.org

Counsel for Petitioner

See e.g., AR R.Evid. 608; AZ R.Evid. 608; CO R.Evid. 608; DE R.Evid. 608; HI

Rev.Stat. §626-1, Rule 608; IA I.C.A. Rule 5.608; ID R.Evid. 608; KY R.Evid.

608; MD Rules, Rule 5-608; ME R.Evid. 608; MI R.Evid. 608; 50 MN St.Ann.

R.Evid 608; MT R.Evid. 608; NE Neb.Rev.St. §27-608; NH R.Evid. 608; NC G.S.

§8C-1, Rule 608; ND R.Evid. 608; NM R.Evid 11-608; OH Evid.R. 608; 12

OK.St.Ann. §2608; RI R.Evid. 608; SC R.Evid. 608; TN R.Evid. 608; VT R.Evid.

608; UT R.Evid. 608; WI (W.S.A.) 906.08; WV R.Evid. 608; WY R.Evid. 608.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.