Petition for Writ of Certiorari — Paul Lynn Schlieve, Petitioner v. United States

Supreme Court briefAug 7, 2018

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No.

IN THE

SUPREME COURT OF THE UNITED STATES

Paul Lynn Schlieve

PETITIONER

VS.

The United States of America

RESPONDENT

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Paul Lynn Schlieve

5507 Chestnut Ln.

Mc Farland, WI 53558-8902

(940) 206-0631

QUESTION PRESENTED

1. Does the Prosecutor's duty to disclose exculpatory evidence

pursuant to the Fifth Amendment of the United States

Constitution include disclosure of evidence that is favorable and

material in the context of a case-dispositive motion to suppress

evidence seized in violation of the Fourth Amendment to the

Constitution of the United States.

LIST OF PARTIES

All parties appear in the caption of the case on the cover page.

TABLE OF CONTENTS

QUESTION PRESENTED............................................................................................

LISTOF PARTIES .....................................................................................................ii

TABLE OF CONTENTS ............................................................................................. iii

INDEX TO APPENDICES........................................................................................... v

TABLE OF AUTHORITIES CITED...............................................................................vii

OPINIONSBELOW ..................................................................................................1

JURISDICTION.........................................................................................................2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED .................................3

STATEMENT OF THE CASE ......................................................................................4

Introduction......................................................................................4

TheTraffic Stop................................................................................8

The Sheriffs Jail Record..................................................................9

The Traffic Stop Videotape ............................................................17

REASONS FOR GRANTING THE PETITION ..............................................................25

There is a Split in Circuit Authority .............................................25

111

DOJ Policy is an Inadequate Protection for Constitutional Rights

..........................................................27

This Case Squarely Presents the Constitutional Issue.................29

CONCLUSION........................ . ............................................................................... 30

INDEX TO APPENDICES

APPENDIX A

U.S. v. Schlieve, No. 14-40577 (5th Cir. 2018)—Opinion (Following

remand)

APPENDIX B

Schlieve v. U.S., 4:07cv293 (Ed. TX, 2014)—Order of Dismissal

(Following remand)

APPENDIX C

Schlieve v. U.S., 407cv293 (Ed. TX, 2014)—Report and

Recommendation of United States Magistrate Judge (Following

remand)

APPENDIX D

U.S. v. Schlieve, No. 14-40577 (5th Cir. 2018)—On Petition for

Rehearing En Bane (Following remand)

APPENDIX E

U.S. v. Schlieve, No. 10-41279 (5th Cir. 2012)—Opinion

APPENDIX F

Schlieve v. U.S.,, 4:07cv293 (Ed. TX, 2010)—Order of Dismissal

APPENDIX G

Schlieve v. U.S, 407cv293 (Ed. TX, 2010)—Report and

Recommendation of United States Magistrate Judge

APPENDIX H

U.S. v. Schlieve, No. 04-41112 (5th Cir. 2006)—Substituted Opinion on

Denial of Rehearing

TABLE OF AUTHORITIES CITED

PAGE NUMBER

CASES

Brady v. Maryland, 373 U.S. 83 (1963)

.4,18,29

Chambers v. Maroney, 399 U.S. 42 (1970) .............................................20

Dunbar v. Seger-Thomschitz, 615 F.3d 574 (5th Cir. 2010)...................24

Kyles V. Whitley, 514 U.S. 419 (1995) ................................................4, 17

New York v. Class, 475 U.S. 106 (1986) .................................................20

Smith v. Black, 904 F.2d 950............................................................18, 26

Terry v. Ohio, 392 U.S. 1 (1968)................................................................5

U.S. v. AlanizAlaniz, 38 F.3d 788 (5th Cir. 1994) .................................11

United States v. Barton, 995 F.2d 931 (9th Cir. 1993)...........................26

United States v. Bowie, 198 F.3d 905 (D.C. Cir. 1999) ..........................26

US. v. Brigham, 382 F.3d 500 (5th Cir. 2004) .......................................22

United States v. Cortez, 449 U.S. 411 (1981) .........................................15

US. v. Freeman,77 F.3d 812 (5th Cir. 1996)..........................................11

US. v. Grant, 2007 U.S. Dist LEXIS 14221 (S.D.Tex. February 28,

2007) ...............................................................................................20

US. v. Hutchinson, 471 F.Supp.2d 497 (M.D.Pa. 2007) ........................23

United States v. Jones, 312 S.Ct. 945 (2012) .........................................20

vii

US. v. Meredith, 480 F.3d 366 (5th Cir. 2007)

. 23

US. v. Pierre, 932 F.2d 377 (5th Cir. 1991) ...........................................20

United States v. Ruiz, 536 U.S. 622 (2002) ............................................25

U.S. v. Schlieve, 2006 U.S.App. LEXIS 7158 (5th Cir. 2006)...................5

U.S. v. Schlieve, Case No. 14-40577 (5th Cir. 2018)................................18

United States v. Scott, 245 F.3d 890 (7th Cir. 2001)..............................27

US. v. Wallen, 338 F.3d 161 (5t8h Cir. 2004)............................................8

US. v. Winnigham, 140 F.3d 1328 (10th Cir. 1998) ..............................23

Wong Sun v. United States, 371 U.S. 471 (1963) ...................................24

OTHER

U.S. Attorney's Manual (U.S.A.M.)........................................................28

viii

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to

review the judgment below.

The Government argued and both the district court and the

appellate court held that a criminal defendant's right to exculpatory

evidence pursuant to the Fifth Amendment of the U.S. Constitution and

this Court's Brady jurisprudence does not include a right to evidence

that is exculpatory exclusively with respect to the factual basis of

Fourth Amendment suppression—holding instead that the Due Process

clause of the Fifth Amendment applies exclusively to the evidence that

is material to the jury's consideration of the ultimate question of guilt or

innocence. This Court should clarify that the Due Process Clause of the

Fifth Amendment, Brady, and its progeny require the prosecutor to

disclose to a criminal defendant evidence that is material to

determining whether a search and seizure were conducted in violation

of the Fourth Amendment.

OPINIONS BELOW

The opinion of the United States court of appeals appears at

Appendix A to the petition and is unpublished.

The opinion of the United States district court appears at

Appendix B to the petition and is unpublished.

The report and recommendation of the United States Magistrate

Judge appears at Appendix C to the petition and is unpublished.

The denial of the Petition for rehearing by the United States court

of appeals appears at Appendix D.

The opinion of the United States court of appeals on its first

review and remand of the underlying petition under 28 U.S.C. § 2255

appears at Appendix E.

The opinion of the United States district court on its first review

and denial of the underlying petition under 28 U.S.C. § 2255 at

Appendix F.

The report and recommendation of the United States Magistrate

judge initially recommending denial of the petition under 28 U.S.C. §

2255 appears at Appendix G.

The opinion of the United States court of appeals on direct appeal

of the underlying federal criminal conviction appears at Appendix H.

JURISDICTION

The date on which the United States Court of Appeals decided my

case was February 15, 2018.

A timely petition for rehearing was denied by the United States

Court of Appeals on May 9, 2018, and a copy of the order denying

rehearing appears at Appendix D.

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

1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Fifth Amendment to the Constitution of the United States:

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a grand jury, except in cases arising in the

land or naval forces, or in the militia, when in actual service

in time of war or public danger; nor shall any person be

subject for the same offense to be twice put in jeopardy of life

or limb; nor shall be compelled in any criminal case to be a

witness against himself, nor be deprived of life, liberty, or

property, without due process of law; nor shall private

property be taken for public use, without just compensation.

Fourth Amendment to the Constitution of the United States:

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no warrants shall

issue, but upon probable cause, supported by oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.

STATEMENT OF THE CASE

Introduction

This case presents the foundational constitutional question of

whether a criminal defendant's right to exculpatory evidence pursuant

to the Fifth Amendment of the U.S. Constitution, as explained by this

Court in Brady v. Maryland' and Kyles v. Whitley 2 extends to evidence

that is exculpatory in the context of establishing that the seizure of

case -dispositive evidence was conducted in violation of the Fourth

Amendment of the U.S. Constitution.

In this case, the Government has argued, and both the district

court and appellate court have affirmed, that the Government may hide

evidence demonstrating that the testimony offered by police officers at a

suppression hearing is false. This position of the Government, the

district court, and the appellate court is incompatible with the U.S.

Constitution's Fifth Amendment right to due process of law.

373 U.S. 83 (1963).

514 U.S. 419 (1995).

The foundation of Dr. Schlieve's conviction is drugs and a gun

seized during a pretextual traffic stop. There are two pieces of evidence,

both dispositive to the existence of a Fourth Amendment violation, that

were not timely-provided, or ever provided, to the defense:

• First, the "reasonable suspicion"3 to detain Dr. Schlieve for almost

two hours by the side of the road at pretextual traffic stop until a

drug dog could be brought to the scene, was based on an alleged

"tip" by a confidential informant. However, the Sheriffs jail

records from a different county, finally obtained five years after

trial, in spite of the government's active concealment, conclusively

establish that the confidential informant was actually in jail in a

different county during the time period where the testifying

officers alleged that he provided the information at a location

many miles away from the jail. In other words, the officers

fabricated the tip out of thin air to create reasonable suspicion

where none existed.

See Terry v. Ohio, 392 U.S. 1 (1968).

• Second, at the suppression hearing, the K-9 Officer testified that

the drug dog had jumped into the bed of the truck where the dog

alerted of his own volition—having been driven there by the scent

of narcotics—and specifically not as the result of any

encouragement by the officer. However, the police traffic stop

videotape, which was not provided to the defense until after the

district court's denial of the motion to suppress (but before trial)

clearly shows: (1) the arresting officer lowered the tailgate of the

truck, thus providing access to the bed of the truck in violation of

Fifth Circuit case law; and (2) the K-9 officer signaled the dog by

hand motion to enter the bed of the truck, prior to the dog

exhibiting a positive alert, also in violation of Fifth Circuit and

this Court's case law. Having already decided the Fourth

Amendment issue pretrial, the district court declined the defense's

invitation to reconsider the suppression issue during trial.

The district court held, and the Fifth Circuit affirmed, that the

evidence alleged by Dr. Schlieve to constitute Brady material was not

"favorable" or "material" because:

. The sheriffs jail records were only determinative of whether there

was reasonable suspicion to detain Dr. Schlieve at the traffic.

stop—because the jail records were not relevant to the jury's

guilty verdict, had the jury seen the Sheriffs jail records, it would

not have changed the verdict at trial.

. Because the jury saw portions of the traffic stop video and still

voted to convict, there was no Brady violation with respect to the

late disclosure of the traffic stop videotape.

This is not a case where the undisclosed evidence was in the

nature of generally impeaching the officer's credibility. Instead, in both

instances, it is evidence that clearly and convincingly demonstrates that

the officer was not testifying truthfully about a material fact. Official

jail records showing that a confidential informant was incarcerated is

clearly incompatible with testimony that the confidential informant was

at a meeting in a different county. The images on a police videotape

that directly contradict an officer's testimony about his actions

eviscerates the officer's testimony on that point.4

Had the undisclosed evidence been available to the defense at the

suppression hearing, there is no question that the outcome would have

been different. The drug and gun evidence would have been suppressed

and the government would have been compelled to move to dismiss the

indictment.

The Traffic Stop

Dr. Paul Schlieve, Ph.D., was a "professional person." Schlieve had

been a Computer Science Professor since the early 1980's. At the time of

the traffic stop, Schlieve was managing a $550,000 Community

Networking grant for the City of Denton, Texas. Schlieve had never

been arrested or convicted for any offense. Schlieve had not received a

traffic citation in 20 years.

On the evening of May 19, 2003, Schlieve departed the Pilot Point,

Texas home of Sergeant Patsy Loftice, of the Denton County Sheriffs

US. V. Wallen, 338 F.3d 161, 164 (5th Cir. 2004) ("Findings that

are in plain contradiction of the videotape evidence constitute clear

error.")

[ó]

Department, driving a late-model extended-cab pickup truck owned by

Gary Don Franks. Schlieve was accompanied by a single passenger,

Robbie Reynolds, brother of a former Pilot Point police sergeant. Franks

was not present in the vehicle.

At 8:50 pm, Schlieve was stopped for routine traffic violations by

Officer James Edland in the rural Texas community of Pilot Point. A

dashboard-mounted video camera in Officer Edland's police cruiser

recorded the events of the traffic stop.

The Sheriff's Jail Record

In Schlieve's case, the government suppressed the Sheriffs Jail

Record memorializing the incarceration and release of a purported

confidential informant on May 19, 2003 (hereinafter, the "Sheriffs Jail

Record"). Said document establishes that it was impossible for the

alleged confidential informant to have provided the "tip" that ws

foundational to the court's determination that there was reasonable

suspicion to detain Dr. Schlieve by the side of the road for almost two

hours while waiting for the arrival of a drug dog.

On direct appeal, the appellate court found that arresting officer

Edland had reasonable suspicion to detain Schlieve at the traffic stop

beyond the point where the license checks came back "clean" because:

Edland knew that Schlieve was driving a truck owned

by Gary Don Franks, a known, recently active drug dealer.

Furthermore, the car had just come from a house where

someone was arrested for a drug offense, and the passenger

was a known criminal. This is sufficient for reasonable

suspicion under Terry.5

The primary factor identified by the Fifth Circuit in its affirmance

of the district court's denial of Schlieve's suppression motion was the

same primary factor originally identified by the court below—a "tip"

about Gary Don Franks. The two remaining factors cited by the Fifth

Circuit merely reinforced the reasonable suspicion established by the

"tip."

At the Motion to Suppress Hearing, federal agent David Scott

testified that he received a "tip" from prisoner Rodney Crowley that

Gary Don Franks had recently manufactured Methamphetamine and

would likely have methamphetamine in his possession, when Scott

US. v. Schlieve, 2006 U.S.App. LEXIS 7158, p.9 (5th Cir. 2006).

transported Crowley from the Cooke County Jail in Gainesville, Texas,

to the Whitesboro, Texas, city jail.

Officer Edland testified that he, in turn, received the "tip" from

Agent Scott at a 3:00-4:00 meeting at the Whitesboro police station.

However, the Sheriffs jail record clearly establishes that Rodney

Crowley was not released into federal custody by Cooke County until

5:56 pm—after the alleged meeting in Whitesboro between Edland and

Scott had concluded. By 6:00 pm, Officer Edland and FBI Agent

Whitten were already back in Pilot Point, Texas, to arrest Sherry

Craver. The testimony of Officer Edland was incredible as a matter of

law.6 Traveling back in time, as required by Officer Edland's testimony,

is not possible within the laws of nature.

Evidence that establishes that Officer Edland lied to the district

court is "favorable" to Schlieve. The Sheriffs Jail Record is "favorable"

to Schlieve.

6 US. v. Freeman,77

F.3d 812 (5th Cir. 1996) (citing US. v.

Alaniz-Alaniz, 38 F.3d 788, 791 (5th Cir. 1994) ("[T]estimony can be

declared incredible as a matter of law if it asserts events that could not

have occurred under the laws of nature.").

Schlieve tried diligently to obtain the Sheriffs Jail Record.

Immediately upon learning the identity of the purported confidential

informant, Defense counsel dispatched a private investigator to obtain

the document from the Cooke County Sheriffs department. However,

Cooke County Sheriffs Department personnel refused to provide a copy

of the document, per instructions from DEA Agent Vic Routh.

The Government does not suggest that the withheld evidence was

not material in the context of Fourth Amendment suppression. Instead,

the Government argued that it wasn't Brady material because it was

only determinative of reasonable suspicion to detain Dr. Schlieve at the

traffic stop and was irrelevant to the ultimate question of guilt:

The alleged withheld evidence is not material because

it is not determinative of Schlieve's guilt or innocence but of

whether Edland had reasonable suspicion to continue the

traffic stop on May 19, 2003."

The Report and Recommendation of United States Magistrate

Judge adopted this argument, holding:

Schlieve v. United States, Case No. 407cv293 (ED Tx), Brief of

the United States, Document 22, p. 39. ROA 14-40577.524.

Thus, the alleged withheld evidence is not material

because it is not determinative of Movant's guilt or

innocence.8

Lest the supplementary factors cited by the Fifth Circuit on direct

appeal as a basis for reasonable suspicion get elevated beyond their

due, brief consideration of those factors is in order. The "house where

someone was arrested for a drug offense" was the home of Robert

Loftice and his wife, Sergeant Patsy Loftice of the Denton County,

Texas Sheriffs Department. The individual arrested was Sgt. Loftice's

daughter, Sherry, who was arrested in the driveway of the house, prior

to reaching the home itself.

The "suspicion" attached to a law-enforcement home is

miniscule—even if the daughter is arrested in the driveway on a federal

methamphetamine conspiracy warrant.

Although the passenger with Schlieve in the truck, Robbie

Reynolds, had a criminal record, he was primarily known to police as

the brother of a Sergeant in the Pilot Point Police Department. Another

8 Schlieve v. United States, Case No. 407cv293 (ED TX), Report

and Recommendation of United States Magistrate Judge, Document 50,

p. 23.

brother, Ed, was the Assistant Chief of Police of the University of North

Texas. Reynolds' father was a retired Captain of the City of Denton,

Texas, Police Department. Reynolds was so "unsuspicious" to the

officers at the traffic stop that they didn't even ask him for

identification or run a computer check for warrants and criminal

history. Edland did not arrest Reynolds because, "[hie was just a

passenger in the vehicle from what I felt."

At the suppression hearing, Officer Edland never mentioned

Reynolds' criminal history as a factor that he considered in his

assessment of reasonable suspicion to detain Schlieve. The Government

never argued Reynolds' criminal history as a factor supporting

reasonable suspicion in the district court. The district court never

mentioned Reynolds' criminal history in its findings of fact supporting

reasonable suspicion to detain Schlieve. It was not until the

Government falsely asserted to the appellate court on direct appeal that

Reynolds had been arrested at the traffic stop that Reynolds' criminal

history was interjected into the consideration of reasonable suspicion.9

US. v. Schlieve, No. 04-41112 (51h Circuit), Brief of United

States, p. 7.

Reynolds' past criminal activity played no role in Edlands' analysis of

reasonable suspicion regarding the continued detention of Schlieve.

Clearly, the pivotal fact in both the appellate court's analysis of

reasonable suspicion, and the analysis in the district court was the "tip"

about Gary Don Franks. Except, there was no "tip" about Franks. The

officers made the whole thing up! The fabricated "tip" was Edland's sole

basis for knowledge with respect to Franks. Edland had no knowledge

of Franks' criminal history. Without the fabricated "tip," both Franks

and the truck that Schlieve was driving were complete unknowns to

Edland.

This Court's precedent requires that "[al. n investigatory stop must

be justified by some objective manifestation that the person stopped [i.e.

Schlieve] is, or is about to be, engaged in criminal activity."0 Once the

false "tip" about Franks is redacted from the calculus of reasonable

suspicion in Schlieve's case, the remaining information: 1) that Schlieve

had recently visited the home of Sergeant Patsy Loftice of the Denton

United States v. Cortez, 449 U.S. 411, 417 (1981) (emphasis

added).

County Sheriffs Department, shortly after S gt. Loftice's daughter had

been arrested for a drug offense in the driveway of the home; and 2)

that the passenger in Schlieve's truck, the brother of a Sergeant on the

Pilot Point police force, had a criminal record of unspecified nature

comes nowhere near the minimum threshold of knowledge required to

constitute "reasonable suspicion" under Terry. The officers had no

information regarding Schlieve at the time the computer checks came

back clean that would lead a reasonable officer to believe that Schlieve

was engaged in any criminal activity.

The traffic stop of Schlieve should have ended when the computer

checks came back clean. There was no further reasonable suspicion of

criminal activity to justify the further detention of Schlieve, who should

have been allowed to leave.

The lack of clear direction from this Court as to the duty of a

prosecutor to disclose exculpatory evidence determinative of the factual

basis of a Fourth Amendment violation has permitted aggressive

prosecutors to sidestep their obligations under Brady.

The Traffic Stop Videotape

The Sheriffs jail record was not the only item of exculpatory

evidence that the government failed to disclose prior to the suppression

hearing. The materiality of undisclosed exculpatory evidence must be

assessed cumulatively."

Well after the Motion to Suppress had been denied, and shortly

before trial, AUSA Maureen. Smith provided Schlieve's counsel with one

of two police video recordings of the traffic stop (the second was erased

by law enforcement and never disclosed). Counsel renewed the Motion

to Suppress at trial, but no additional evidence was considered by the

court. Schlieve's § 2255 motion asserted that the Government's failure

to provide the videotape prior to the suppression hearing was a

violation of his rights pursuant to the Fifth Amendment of the

Constitution.

The district court erroneously held that because the videotape was

played for the jury, and the jury found Schlieve guilty, the remaining

11 Kyles v Whitley, 514 U.S. 418, 436-437

elements of the Brady inquiry ["favorability" and "materiality"] are

unmet:

The videotape had been played for the jury. The jury

assessed the testimony of witnesses, watched the videotape,

and heard the remaining evidence presented, including the

testimony of several coconspirator witnesses. Yet, the jury

found Movant guilty. Movant also has not shown that the

evidence on the videotape was material. He has not shown

that there is a reasonable probability that, had the evidence

been disclosed to the defense, the result of the proceeding

would have been different.12

On appeal to the U.S. Court of Appeals for the Fifth Circuit, the

panel reinforced the notion that Brady does not apply in the context of a

Fourth Amendment violation concluding:

The record fully obliterates [the Brady] claim, because

the defense had possession of the video [at trial], as did the

jury. '3

This analysis was in error because in the context of a Brady

violation affecting a suppression hearing, the appropriate assessment

for Brady purposes, of course, is whether the nondisclosure affected the

outcome of the suppression hearing.

12 Schlieve v. United States, No. 07cv293, Report and

Recommendation of United States Magistrate Judge, Document 90, p. 7.

13 U.S. v. Schlieve, Case No. 14-40577, Slip at 2 (5th Cir. 2018).

Assuming, arguendo, that reasonable suspicion of criminal

activity existed to justify the almost two-hour detention of Schlieve from

the time the licenses came back clean until the drug dog alerted, the

drug dog's entry into the truck bed was a "search" requiring probable

cause. Officer Torres's testimony at the suppression hearing was that:

"Blitz went into the bed of the vehicle by himself. He was not directed to

go up there. The odor drove him up to the bed of the vehicle, and he

climbed up onto the tool box." Officer Torres's motive to testify in this

fashion was to convince the district court that the drug dog entered the

truck not as a result of law enforcement instruction (impermissible), but

rather by the dog's own reaction to smelling narcotics (permissible).

However, the videotape provided after the suppression hearing shows

that Blitz was not driven into the bed of the truck by the odor of

narcotics. Instead, Blitz was directed into the bed of the truck by Officer

Torres. This distinction makes the videotape material and the failure to

disclose it prior to the suppression hearing a violation of Brady.

Schlieve had a reasonable expectation of privacy in the interior

airspace of the truck14, including within the bed of a truck.15

The "plain smell" doctrine requires the smeller to be "where he

lawfully has a right to be."6 In United States v. Jones,17 this Court

explained that the "reasonable expectation of privacy" standard with

respect to searches, articulated in Justice Harlan's concurrence in Katz

v. United States, 18 augmented, as opposed to replaced, prior propertybased Fourth Amendment jurisprudence based on the principles of

common-law trespass. As Justice Scalia explained:

14 See Chambers v. Maroney, 399 U.S. 42 (1970). U.S. v. Pierre,

932 F.2d 377, 382 (5th Cir. 1991) ("While the interior of an automobile

is not subject to the same expectations of privacy that exist with respect

to one's home, a car's interior as a whole is nonetheless subject to

Fourth Amendment protection from unreasonable intrusion by the

police.") (quoting New York v. Class, 475 U.S. 106, 114-15 (1986)).

US, v. Grant, 2007 U.S. Dist LEXIS 14221 (S.D.Tex. February

28, 2007) (recognizing that officers require either consent or probable

cause to search the bed of a pickup truck).

16 US. v. Pierre, 932 F.2d 377 at 383.

17 312 S.Ct. 945 (2012).

18 389 U.S. 347 (1967).

[Tihe Katz reasonable-expectation-of-privacy test has

been added to, not substituted for, the common-law

trespassory test.19

In Schlieve's case, when Officer Edland lowered the truck tailgate

and Officer Torres then directed the narcotics-detection dog into the

interior of the bed of the truck, they committed common-law trespass,

as understood in 181h-century tort law. In Jones, this Court found a

Fourth Amendment violation where officers crawled under the motor

vehicle while it was parked in a public parking lot and affixed a GPS

tracking device to the vehicle undercarriage. The extent of the trespass

involved in crawling under a vehicle is less extensive than the trespass

resulting from lowering a vehicle tailgate and entering the interior of a

truck bed. This Court's decision in Jones strengthens the Fifth Circuit's

precedent in Pierre in requiring that officers, including a drug dog,

refrain from common-law trespass on the "effect" of the motor vehicle

while engaging in a "plain smell" dog sniff.

At the traffic stop of Schlieve, Blitz the drug dog was not

constitutionally permitted to go any place that Officer Torres, his

19 United States v. Jones, 132 S.Ct. at 952 (emphasis in original).

handler, was not permitted to go. It is undisputed that Schlieve denied

permission to search any part of the truck. The "probable cause"

associated with Schlieve's alleged traffic violations expired when

Schlieve's licenses came back clean and Officer Edland determined that

no citation would be issued.20 Therefore, neither Officer Edland, Officer

Torres, nor Blitz had the authority to intrude on Schlieve's trespassory

interest or reasonable expectation of privacy by opening the tailgate

latch, lowering the tailgate, and entering the bed of the pickup truck.

There was no legitimate pretext to authorize any of them to enter the

bed of the pickup.

Blitz did not alert to the perimeter of the truck prior to entering

the bed of the truck. Blitz was not driven into the bed of the truck by

the odor of narcotics. Instead, as shown in the videotape, provided after

the suppression motion was denied, Blitz was directed into the interior

of the truck bed by Officer Torres. Furthermore, Blitz would not have

had access to the interior of the truck bed had Officer Edland not first

20 Us. v. Brigham, 382 F.3d 500, 510 (5th Cir. 2004) (en bane)

(holding that traffic stops end when the computer checks come back

"clean").

lowered the tailgate of the vehicle. Blitz's intrusion into the truck bed

violated the Fourth Amendment:

[Tihe consensus among the courts that have addressed

this question appears to be that a canine sniff that migrates

from outside a car or other container to the interior does not

constitute a violation of the Fourth Amendment, provided

that the canine makes entry into the suspect vehicle of its

own initiative and is neither encouraged into nor placed in

the vehicle by a law enforcement officer.21

Blitz's alert, emanating from a toolbox (which contained chicken

feed, but no drugs), was tainted by Blitz's unreasonable, and therefore

unconstitutional, entrance into the interior of the truck bed, without

first establishing the requisite probable cause for Blitz to enter the

truck bed and search. The alert led to an illegal search of the truck and

US. v. Hutchinson, 471 F.Supp.2d 497, 506 (M.D.Pa. 2007);

U.S. v. Meredith, 480 F.3d 366, 369 (5th Cir. 2007) ("Opening a vehicle's

door or piercing the interior airspace constitutes a search."); U.S. v.

Winnigham, 140 F.3d 1328, 1331 (10th Cir. 1998) (suppressing

contraband discovered in a van following a canine sniff of the interior

where officers opened the van's door and the dog's handler encouraged

the dog to sniff the interior); c.f. US. v. Stone, 866 F.2d 369, 364 (10th

Cir. 1989) ("[T]here is no evidence, nor does Stone contend, that the

police asked Stone to open the hatchback so the dog could jump in. Nor

is there any evidence the police handler encouraged the dog to jump in

In these circumstances, we think the police remained

the car.

within the range of activities they may permissibly engage in when they

have reasonable suspicion to believe an automobile contains

narcotics.").

may not form the basis for a subsequent determination of probable

cause. Everything observed and seized, by either Blitz or the officers,

following Blitz's entry into the truck bed, must be suppressed as the

fruits of an illegal search.22

Officer Torres testified at the suppression hearing that Blitz was

not ordered into the truck. This testimony was later found to be

inconsistent with what can be seen on the videotape. Had the

Government disclosed the videotape prior to the suppression hearing, as

required by Brady, Schlieve would have had the foundation necessary to

fully develop the record concerning Blitz's entry into the bed of the

truck and present a fully-developed legal argument to the court.

However, the nondisclosure of the videotape denied Schlieve the

foundation to raise and support the issue in the district court, thereby

foreclosing review of that argument on direct appeal.23

22 Wong Sun v. United States, 371 U.S. 471 (1963) (fruit of the

poisonous tree doctrine).

23 Dun bar v. SegerThomschitz, 615 F.3d 574, 576 (5th Cir. 2010)

("The court of appeals will not generally consider evidence or arguments

that were not presented in the district court."), cert. denied, 131 S.Ct.

1511 (2011).

REASONS FOR GRANTING THE PETITION

There is a Split in Circuit Authority

Circuit courts have split on the issue whether Brady v. Marylands

restrictions apply to suppression hearings subsequent to this Court's

conclusion in United States v. Ruiz24 that a prosecutor does not have to

disclose impeachment evidence before the entry of a guilty plea. In an

unpublished opinion, the Tenth Circuit, without discussing whether

Brady v. Maryland applies to a suppression hearing, rejected a

defendant's argument that the prosecution violated Brady v. Maryland

by failing to disclose impeachment evidence before a suppression

hearing on the basis that the evidence was not impeachment evidence

and not material.25

The United States Court of Appeals for the District of Columbia

has recognized that "it is hardly clear that the Brady line of Supreme

Court cases applies to suppression hearings," because "[sliuppression

hearings do not determine a defendant's guilt or punishment, yet Brady

536 U.S. 622 (2002).

See United States v. Johnson, 117 F.3d 1429, 1997 WL 381926

(10th Cir. 1997) (unpublished table decision).

rests on the idea that due process is violated when the withheld

evidence is 'material either to guilt or to punishment. "26 Without

deciding the issue and in an unpublished opinion, the United States

Court of Appeals for the Sixth Circuit quoted with approval this

language from United States v. Bowie. See United States v. Bullock,

130 F.App'x 706, 723 (6th Cir. 2005) (unpublished) ("Whether the

suppression hearing might have come out the other way, however, is of

questionable relevance to the Bradyissues at stake here."). The Fifth

Circuit and the United States Court of Appeals for the Ninth Circuit

held, before this Court issued its United States v. Ruiz decision, that

Brady v. Maryland restrictions apply to suppression hearings. See

United States v. Barton, 995 F.2d 931, 935 (9th Cir. 1993) ("[W]e hold

that the due process principles announced in Brady and its progeny

must be applied to a suppression hearing involving a challenge to the

truthfulness of allegations in an affidavit for a search warrant."); Smith

v. Black, 904 F.2d 950, 965-66 (5th Cir. 1990) ("Timing is critical to

proper Brady disclosure, and objections may be made under Brady to

United States v. Bowie, 198 F.3d 905, 912 (D.C. Cir. 1999).

the state's failure to disclose material evidence prior to a suppression

hearing."), vacated on other grounds, 503 U.S. 930 (1992)). However, as

demonstrated by Schlieve's case, the Fifth Circuit no longer considers

its decision in Smith v. Black binding precedent.

The United States Court of Appeals for the Seventh Circuit held

that, under its precedent and the law from other circuits, it was not

"obvious" for clear-error purposes that "Brady disclosures are required

prior to suppression hearings."27

The unsettled state of the law, combined with a lack of consensus

among the circuits, make this issue ripe for consideration by this Court.

DOJ Policy is an Inadequate Protection for Constitutional Rights

In this case, the Government has argued, and both the district

court and appellate court have affirmed, that the Government may hide

evidence demonstrating that the testimony offered by police officers at a

case-dispositive suppression hearing is false. This position by the

Government, the district court, and the appellate court is incompatible

United States v. Scott, 245 F. 3d 890, 902 (7th Cir. 2001).

with the U.S. Constitution's Fifth Amendment right to due process of

law and this Courts decisions in Brady and its progeny.

Although the United States Attorneys'Manual requires disclosure

of evidence that "might have a significant bearing on the admissibility

of prosecution evidence,"28 the manual, however, categorizes such

disclosures as "information beyond that which is constitutionally and

legally required" to be disclosed.29 Because criminal defendants have no

ability to enforce the requirements of the U.S, Attorneys'Manual in the

courts, its requirements may be freely ignored by aggressive federal

prosecutors. Although the government, through the U.S. Attorneys'

Manual, does not recognize that Brady requires the disclosure of this

evidence, the fact that government policy requires the disclosure of such

exculpatory evidence establishes that the government favors the

disclosure of this evidence.

This case demonstrates that the guarantees of the U.S.

Constitution must not be left to government bureaucrats where

28 U.S.A.M.

§ 9-5.0010(2).

29 1d, (emphasis added).

compliance with the policy is optional and not subject to court oversight.

It is important that this Court let its voice be heard on a matter that is

foundational to hundreds of criminal prosecutions each year in this

country.

This Case Squarely Presents the Constitutional Issue

Dr. Schlieve's case is perfectly situated for this Court to clarify its

holdings in Bra dyin the context of protecting a defendant's rights

under the Fourth Amendment.

This case presents no factual disputes for this court to resolve.

This case presents a pure question of law. The dates on which each of

the pieces of exculpatory evidence were actually delivered to, or

independently obtained by the defense, are not in dispute. The dates of

the motions and hearings are a matter of record.

The timing of the disclosure of the videotape after the denial of the

suppression hearing, yet before trial, and the defendant's independent

discovery of the sheriffs jail records five years after trial, additionally

allow this Court to address the impact of timing on the disclosure of

Brady materials in the context of Fourth Amendment Suppression

under two different disclosure scenarios.

Dr Schlieve's case is the ideal foundation upon which this Court

can address the intersection of the Fourth and Fifth Amendments to the

Unites States Constitution.

CONCLUSION

The petition for a writ of certiorari should be granted.

Res e ully submitted,

Paul Lynn Schlieve

Date: August 7, 2018

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.