Opposition Brief — Tremayne Antwane Mitchell, Petitioner v. United States

No. 18-5004

________________________________________________________________

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

TREMAYNE ANTWANE MITCHELL, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPPOSITION

_______________

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

BRIAN A. BENCZKOWSKI

Assistant Attorney General

THOMAS E. BOOTH

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

________________________________________________________________

QUESTIONS PRESENTED

1.

Whether police officers violated the Fourth Amendment by

sniffing the window and door of petitioner’s apartment while

standing on a public sidewalk.

2.

Whether the court of appeals properly concluded that the

district court erred by ruling sua sponte that a police officer

made false statements in an affidavit to support a search warrant,

where the defendant made no claim, under Franks v. Delaware, 438

U.S. 154 (1978), that the affidavit was false.

(I)

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 18-5004

TREMAYNE ANTWANE MITCHELL, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. A1-A13) is

unreported but is available at 720 Fed. Appx. 146.

The order of

the district court (Pet. App. B1-B20) is also unreported.

JURISDICTION

The judgment of the court of appeals was entered on March 28,

2018.

The petition for a writ of certiorari was filed on June 25,

2018.

The jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

2

STATEMENT

A federal grand jury in the United States District Court for

the Eastern District of Virginia returned an indictment charging

petitioner with possession of a firearm by a felon, in violation

of 18 U.S.C. 922(g)(1).

Indictment 1.

The district court granted

petitioner’s motion to suppress the firearm on Fourth Amendment

grounds.

Pet. App. B1-B20.

The court of appeals reversed.

Id.

at A1-A13.

1.

On June 27, 2016, Newport News police officers Zachary

Lyons and Glenn Marshall were on routine bike patrol at Pinedale

Manor apartments -- a two-story, garden-style apartment complex in

Newport News, Virginia.

Sidewalks run the length of each building

in the complex, directly abutting the doors and windows of the

ground-level apartments.

The apartment complex’s parking lot and

the sidewalks are accessible to the public.

Pet. App. A3.

As Officer Marshall passed in front of apartment A6, he

smelled a strong odor of burning marijuana.

Officer Lyons, who

was riding his bicycle on a grassy area between the sidewalk and

the parking lot, also smelled marijuana coming from apartment A6.

Both officers had training and experience in smelling raw and burnt

marijuana.

Pet. App. A3.

The officers spent several minutes

investigating the source of the odor by walking along the firstfloor sidewalk and the second-floor landing.

Both officers noted

that the odor was strongest near apartment A6, a street-level

3

apartment with a door and window that abut the sidewalk.

A4.

Officer Lyons

screened

window,”

Id. at

“sniffed the windowsill of A6’s exterior

and

Officer

doorframe of A6’s front door.”

Marshall

Ibid.

“smelled

the

exterior

The window and the door

were slightly “recessed into the building,” creating a few inches

of space between the window or door and the outside wall of the

building. Id. at B2.

Confident that the odor was marijuana coming

from apartment A6, Officer Lyons knocked on the door.

Id. at A4,

B3.

Petitioner opened the door, and the officers smelled an even

stronger odor of marijuana coming from inside the apartment.

The

officers drew petitioner and Sean Mitchell, the two occupants,

outside by telling them that there was a problem with the apartment

window.

Once outside, the officers told the occupants that they

had smelled marijuana coming from the apartment.

The officers

frisked and handcuffed both petitioner and Sean Mitchell and asked

for consent to search the apartment, but the men declined. Officer

Lyons left to obtain a search warrant while Officer Marshall and

a back-up officer waited outside the apartment with the two men.

Pet. App. A4, B3.

In his affidavit, Officer Lyons stated that he and Officer

Marshall had smelled the odor of marijuana from apartment A6 as

they were on bike patrol.

He further stated that when the

occupants opened the door and stepped outside, a strong odor of

4

marijuana emanated from the apartment.

Based on the affidavit, a

local magistrate judge issued a search warrant for the apartment,

finding probable cause that evidence of marijuana possession would

be found inside.

The officers executed the search warrant and

seized three partially-burned marijuana cigarettes and a loaded

semiautomatic firearm.

2.

Pet. App. A5, B4.

After he was charged with unlawful possession of a

firearm,

petitioner

filed

a

pretrial

evidence seized from the apartment.

2017).

motion

to

suppress

the

D. Ct. Doc. 13 (Feb. 13,

He contended that the officers had conducted a warrantless

search of the curtilage of his home in violation of the Fourth

Amendment when they sniffed the window and door of his apartment.

Id. at 4-10.

Petitioner did not challenge the veracity of the

affidavit that supported the search warrant.

Pet. App. A5-A6.

After a hearing, the district court granted petitioner’s

motion to suppress.

Pet. App. B1-B20.

The court viewed the

officers’ sniffing of petitioner’s window and door as a warrantless

search.

Id. at B6-B12.

Relying primarily on Florida v. Jardines,

569 U.S. 1 (2013), which involved officers’ use of a trained drugsniffing police dog on the porch of a home, id. at 3, the court

concluded

that

the

officers

“trespassed

into

immediately surrounding [petitioner’s] residence.”

the

curtilage

Pet. App. B8.

The court observed that, “[a]lthough both officers were standing

on a public walkway outside the apartment,” Officer Lyons had

5

“positioned himself as close to [petitioner’s] bedroom window as

physically possible,” and Officer Marshall had “placed his face up

against [petitioner’s] front door.”

Ibid.

The court concluded

that “[b]oth officers leaned from the public walkway into the

recessed spaces separating the window and door” from the outer

wall of the building, and that such spaces were part of “the home

itself.”

Ibid.

The district court further concluded that the good-faith

exception to the exclusionary rule was inapplicable.

B13-B17.

Pet. App.

The court stated that although the officers seized the

firearm pursuant to a search warrant, the warrant was obtained

after the magistrate judge “was misled by the knowing or reckless

omission of material information from the affidavit.”

Id. at B15.

According to the court, the affidavit “omitted the manner by which

Officers Lyons and Marshall localized the source of the marijuana

odor to [petitioner’s] residence,” i.e., that Officer Lyons had

sniffed the window and Officer Marshall had sniffed the door.

Ibid.

The

court

further

stated

that

“[o]ther

indicia

of

recklessness or gross negligence,” such as luring the occupants

outside and exceeding the scope of the warrant during the search,

“support

the

carelessly.”

3.

conclusion

that

the

affidavit

was

drafted

Ibid.; id. at B15-B18.

The court of appeals reversed.

Pet. App. A1-A13.

6

a.

The

court

of

appeals

determined

that

the

officers’

sniffs at the window and door of petitioner’s apartment were not

a search under the Fourth Amendment.

Pet. App. A7-A11.

The court

recognized that a person has a reasonable expectation of privacy

in his residence, including its curtilage.

Id. at A7.

The court

observed, however, that a person has no expectation of privacy in

things that he knowingly exposes to the public, and that “an

apartment dweller maintains no expectation of privacy in the

publicly accessible common areas of an apartment complex.”

Ibid.

Applying those principles, the court of appeals explained

that “[l]aw enforcement officers’ use of their unenhanced senses

in publicly accessible spaces

* * *

does not amount to a ‘search’

under the Fourth Amendment.”

Pet. App. A7.

The court accordingly

found that the officers here did not conduct a search because they

“used their unenhanced sense of smell to investigate the source of

the marijuana odor wafting through a public space.”

Id. at A8.

The court of appeals further explained that the district court

had misapplied this Court’s decision in Jardines.

Pet. App. A10.

In Jardines, the Court held that the use of trained police dogs to

investigate a home and its immediate surroundings is a search

within the meaning of the Fourth Amendment.

Id. at A10-A11.

The

court of appeals explained that unlike Jardines, the officers here

used their unenhanced senses, not a drug-sniffing dog.

Ibid.

The

court observed that the officers’ “sniffs were no different than

7

what any passerby could have done,” “[n]or was it disputed that

the officers caught anew the smell of marijuana after they lawfully

knocked on the door and [petitioner] voluntarily opened it.”

at A11.

Id.

The court accordingly determined that the officers “were

not required to plug their noses as they passed [petitioner’s]

apartment” and that their sniffs were not a search.

b.

Ibid.

The court of appeals also determined that the district

court had erred in its sua sponte ruling that Officer Lyons had

knowingly or recklessly misled the magistrate judge in his search

warrant affidavit. Pet. App. A12-A13. The court of appeals stated

that it was not necessary to address that issue given its holding

that no Fourth Amendment violation had occurred, but it viewed the

significance of the district court’s error as serious enough to

warrant comment.

Id. at A12.

The court of appeals noted that a search warrant is clothed

with a presumption of validity, but that under Franks v. Delaware,

438 U.S. 154 (1978), that presumption may be overcome if the

defendant makes a substantial preliminary showing that the affiant

acted in bad faith by knowingly or recklessly misrepresenting or

omitting facts essential to a warrant’s issuance.

A13.

Pet. App. A12-

The court stated that the district court had “turned th[e

Franks] process on its head” by finding a Franks violation even

though petitioner did not raise a Franks claim and thus never made

the required preliminary showing.

Id. at A13.

The court of

8

appeals observed that the district court did not hold a Franks

hearing or ask the parties to brief the propriety of suppressing

evidence obtained pursuant to a validly executed search warrant.

Ibid.

Finally, the court of appeals observed that “no record

evidence supports the district court’s finding that Officer Lyons’

application knowingly or recklessly misled” the local magistrate

judge who issued the warrant.

Ibid.

ARGUMENT

Petitioner

contends

(Pet.

7-11)

that

he

is

entitled

to

suppression of evidence found in a warrant-based search of his

home on the theory that Officers Lyons and Marshall violated the

Fourth Amendment by trespassing into the curtilage of his home to

sniff

his

apartment

door

and

window.

The

court

of

appeals

correctly rejected that contention, and its decision does not

conflict with any decision of this Court or another court of

appeals.

Petitioner

further

contends

(Pet.

11-13)

that

the

district court appropriately considered, as part of its good-faith

analysis, whether Officer Lyons had deliberately or recklessly

misled the magistrate judge in obtaining a search warrant for

petitioner’s apartment.

That issue is relevant only if petitioner

prevails on the first question presented, and the court of appeals’

criticism of the district court’s approach is correct in any event.

Further review of the unpublished decision below is accordingly

unwarranted.

9

1.

This Court’s review is unwarranted for the threshold

reason that this case is in an interlocutory posture, which “alone

furnishe[s] sufficient ground for the denial” of the petition.

Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 240 U.S. 251, 258

(1916); see Brotherhood of Locomotive Firemen & Enginemen v. Bangor

& Aroostook R.R., 389 U.S. 327, 328 (1967) (per curiam) (a case

remanded to district court “is not yet ripe for review by this

Court”).

The court of appeals reversed the district court’s order

suppressing petitioner’s firearm and remanded to the district

court for proceedings on the merits.

Pet. App. A13.

is acquitted at trial, his claim will be moot.

If petitioner

If petitioner is

convicted, he will have an opportunity to raise the claim pressed

here, in addition to any claims arising from a plea, trial, or

sentencing, in a single petition for a writ of certiorari.

See

Hamilton-Brown Shoe Co., 240 U.S. at 258; see also Major League

Baseball Players Ass’n v. Garvey, 532 U.S. 504, 508 n.1 (2001)

(per curiam) (noting that the Court “ha[s] authority to consider

questions determined in earlier stages of the litigation where

certiorari is sought from” the most recent judgment).

Petitioner

provides no sound reason to depart in this case from this Court’s

usual practice of awaiting final judgment.

2.

The Fourth Amendment protects “[t]he right of the people

to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures.”

U.S. Const. Amend. IV.

10

Absent the existence of recognized property rights capable of

invasion through “physical intrusion,” Florida v. Jardines, 569

U.S. 1, 5 (2013) (citation omitted); United States v. Jones, 565

U.S. 400, 404 (2012), the defendant must show that he had a

“‘legitimate expectation of privacy in the premises’ searched,”

Byrd v. United States, 138 S. Ct. 1518, 1526 (2018) (quoting Rakas

v. United States, 439 U.S. 128, 143 (1978)).

This Court has recognized that a police officer may observe

a suspect’s residence or curtilage from a public space.

See

California v. Ciraolo, 476 U.S. 207, 212-215 (1986) (officers

viewed curtilage of a residence from public airspace).

also recognized that an officer does not violate

It has

the Fourth

Amendment by approaching a residence, knocking, and then waiting

briefly to be received.

Jardines, 569 U.S. at 8 (citing Kentucky

v. King, 563 U.S. 452, 469-470 (2011)).

And it has recognized

that the occupant of a residence has no legitimate expectation of

privacy with respect to odors that can be smelled by police

officers outside the residence.

See United States v. Johns, 469

U.S. 478, 482 (1985); United States v. Ventresca, 380 U.S. 102,

111 (1965).

Under

those

principles,

the

court

of

appeals

correctly

determined that the officers did not conduct a Fourth Amendment

search by sniffing the door and window of petitioner’s apartment

from a public sidewalk.

Pet. App. A7-A11.

Petitioner had no

11

property right or reasonable expectation of privacy either in the

odors emanating from his apartment or on the public walkway where

the police officers were standing.

Ciraolo, 476 U.S. at 214-215;

Johns, 469 U.S. at 482; Ventresca, 380 U.S. at 111.

Accordingly,

the sniffs by the officers were not searches, nor did the officers

conduct a search by knocking on the door of petitioner’s apartment

to request entry.

Petitioner’s

King, 563 U.S. at 471.

argument

(Pet.

7-11)

that

the

officers

trespassed onto the curtilage of his apartment is incorrect.

This

Court has set forth four factors to determine whether an area

adjacent to a home is “curtilage”:

(1) proximity to the home;

(2) whether the area is included within an enclosure surrounding

a home; (3) nature and uses of the area; and (4) steps taken by

the resident to protect the area from observation.

v. Dunn, 480 U.S. 294, 301 (1987).

United States

Petitioner has identified no

case law in support of the district court’s conclusion that a few

inches of recessed space between the outside wall of the building

and the window and door were “curtilage” of his apartment, and the

Dunn factors make clear that it is not.

Other than “proximity of

the area,” the recessed space was not enclosed, was not used for

anything, and was not protected in any way from observation. Ibid.

To the contrary, the court of appeals correctly determined that

the officers smelled the odor of marijuana from a “walkway open to

the public” and then sniffed “in spaces open and accessible to the

12

public.”

Pet. App. A8.

That factbound determination does not

warrant this Court’s review.

Petitioner’s reliance on Jardines is misplaced.

In Jardines,

this Court held that police officers conducted a Fourth Amendment

search when they took a drug-sniffing dog to the front porch of a

suspect’s residence, where the dog moved to the base of the front

door and alerted to the presence of drugs inside the residence.

569 U.S. at 4, 11-12.

The Court described the front porch as

curtilage, noting that “[t]he front porch is the classic exemplar

of an area adjacent to the home and ‘to which the activity of home

life extends.’”

569 U.S. at 7 (citation omitted).

The Court

concluded that the officers’ actions amounted to a Fourth Amendment

search because they had physically entered a constitutionally

protected area and they had exceeded the scope of any consent or

implied societal license to approach the front door by bringing a

drug-sniffing dog along to explore the area in hopes of obtaining

evidence.

Id. at 7-9.

Jardines does not help petitioner. It reaffirms that officers

may

use

their

unenhanced

senses

while

stationed

on

public

thoroughfares, see 569 U.S. at 7, and the officers here did just

that.

The window and door of petitioner’s apartment abut a public

sidewalk, and nothing prevents any member of the public from

walking within inches of the window or door and smelling anything

emanating from inside the apartment.

Jardines also indicates that

13

even if petitioner were correct that the officers entered into

curtilage, they did not exceed any implied license to approach the

door by using their unenhanced sense of smell to detect marijuana.

Id. at 8-9.

Petitioner has therefore not identified any conflict

between the decision below and Jardines.

3.

Petitioner’s argument (Pet. 11-13) that the court of

appeals erred in determining that the district court misapplied

Franks v.

Delaware, 438 U.S. 154 (1978), and the

good-faith

exception to the exclusionary rule, does not warrant this Court’s

review.

The court of appeals expressly stated that its statements

on that issue were unnecessary in light of its determination that

no Fourth Amendment violation had occurred.

Pet. App. A13.

Thus,

they would be directly relevant to petitioner’s case only if this

Court were to grant review on the first question presented and

hold in favor of petitioner.

In any event, the court of appeals was correct.

Under the

good-faith exception to the exclusionary rule, evidence obtained

by the police acting in reasonable reliance on a search warrant

that is issued by a neutral and detached magistrate, but that is

ultimately found to be invalid under the Fourth Amendment, will

not be suppressed at a criminal trial.

United States v. Leon, 468

U.S. 897, 911-913 (1984). The good-faith exception does not apply,

however, if the affidavit that supported the issuance of the search

warrant included a knowing or reckless falsehood by the affiant in

14

violation of Franks, supra.

Leon, 468 U.S. at 914.

In Franks,

this Court addressed the circumstances in which a defendant seeking

to suppress evidence collected pursuant to a warrant may challenge

the veracity of the affidavit on which the warrant was based.

The

Court held that a defendant is entitled to an evidentiary hearing

if he makes a “substantial preliminary showing” that the affidavit

included a false statement made “knowingly and intentionally, or

with

reckless

disregard

for

the

truth,”

and

if

the

alleged

falsehood was “necessary to the finding of probable cause.”

U.S. at 155-156.

438

The evidence must be suppressed if the defendant

establishes at the hearing that the false statement was intentional

or

reckless

and

the

court

then

finds

that

“the

affidavit’s

remaining content is insufficient to establish probable cause.”

Id. at 156.

Consistent with the decision below, the Sixth Circuit has

held that a district court should not conduct a good-faith or

Franks

inquiry

until

the

defendant

has

made

a

substantial

preliminary showing of falsity in the affidavit. See United States

v. Archibald, 685 F.3d 553, 558-559 (2012), cert. denied, 568 U.S.

1109 (2013).

Petitioner has not identified any circuit decision

to the contrary.

Moreover, as the court of appeals correctly recognized, the

district court’s Franks ruling was especially unwarranted here.

Petitioner did not raise a Franks claim in the district court and

15

did

not

make

the

required

preliminary

showing

of

falsity.

Accordingly, the court did not hold a Franks hearing at which the

officer could have testified to the issue, or even ask the parties

to brief it before ruling against the government.

Pet. App. A13.

And, as the court of appeals observed, the record does not support

the district court’s conclusion that Officer Lyons intentionally

or recklessly misled the magistrate judge.

Ibid.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

NOEL J. FRANCISCO

Solicitor General

BRIAN A. BENCZKOWSKI

Assistant Attorney General

THOMAS E. BOOTH

Attorney

SEPTEMBER 2018