Petition for Writ of Certiorari — Nalenzer Lee Edwards, Petitioner v. United States

No. ____________________

IN THE

SUPREME COURT OF THE UNITED STATES

_____________________________________________

NALENZER LEE EDWARDS,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

_____________________________________________

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Eighth Circuit

_____________________________________________

PETITION FOR WRIT OF CERTIORARI

_____________________________________________

JOHN G. GROMOWSKY

Attorney for Petitioner

Nalenzer Lee Edwards

The Gromowsky Law Firm, LLC

1100 Main Street, Suite 2800

Kansas City, Missouri 64105

E-Mail: jgromowsky@gromowsky-law.com

Telephone: (816) 842-1130

QUESTION PRESENTED

As recently as 2014, this Court reemphasized that an informant’s knowledge

of a suspect’s future movements may be indicative of some familiarity with the

suspect’s affairs, but it does not necessarily imply the informant knows whether the

suspect is carrying hidden contraband. Navarette v. California, 572 U.S. 393, 399

(2014), citing Florida v. J.L., 529 U.S. 266, 271 (2000). The question presented is:

Did the Court of Appeals for the Eighth Circuit error in finding probable

cause to justify a vehicle stop and the arrest of petitioner, where a previously

reliable confidential informant twice correctly predicted that petitioner would drive

from Columbia, Missouri, to Jefferson City, Missouri, supposedly for the purpose of

purchasing heroin, but where police gave minimum effort to confirm petitioner

would actually be in possession of heroin at the time of arrest, beyond following

petitioner on his trips to Jefferson City?

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TABLE OF CONTENTS

QUESTION PRESENTED ............................................................................................. i

TABLE OF AUTHORITIES ......................................................................................... iii

OPINION BELOW......................................................................................................... 2

STATEMENT OF JURISDICTION .............................................................................. 2

CONSTITUTIONAL PROVISION ................................................................................ 2

STATEMENT OF THE CASE....................................................................................... 3

I.

MATERIAL FACTS .................................................................................................. 3

II. PROCEEDINGS BELOW ........................................................................................... 6

REASONS FOR GRANTING THE PETITION FOR WRIT ........................................ 8

I. THE FACTS OF THIS CASE SUPPORT A FINDING THAT, AT THE TIME OF MR.

EDWARDS’ ARREST, REASONABLE SUSPICION EXISTED TO BELIEVE HE MAY HAVE BEEN

INVOLVED IN CRIMINAL ACTIVITY; HOWEVER, THE SAME FACTS DO NOT SUPPORT A

FINDING THAT PROBABLE CAUSE FOR ARREST EXISTED. ................................................ 8

CONCLUSION ............................................................................................................ 15

PETITIONER’S APPENDIX A ...................................................................................A1

PETITIONER’S APPENDIX B ...................................................................................B1

ii

TABLE OF AUTHORITIES

Cases

Adams v. Williams, 407 U.S. 143 (1972)........................................................... 8, 10, 12

Alabama v. White, 496 U.S. 325 (1990) ........................................................................ 8

Carter v. Hamaoui, 699 Fed.Appx. 519 (6th Cir. 2017) ............................................. 14

District of Columbia v. Wesby, 138 S.Ct. 577 (2018) .................................................... 9

Draper v. United States, 358 U.S. 307 (1959) ............................................. 8, 10, 11, 12

Florida v. J.L., 529 U.S. 266 (2000) ..................................................................... i, 8, 14

Heien v. North Carolina, 135 S.Ct. 530 (2014) ............................................................. 9

Illinois v. Gates, 462 U.S. 213 (1983) ............................................................................ 8

Illinois v. Wardlow, 528 U.S. 119 (2000) .................................................................... 10

Navarette v. California, 572 U.S. 393 (2014) ................................................... i, 8, 9, 14

Terry v. Ohio, 392 U.S. 1 (1968) .................................................................................. 12

United States v. Freitas, 716 F.2d 1216 (9th Cir. 1983) ............................................. 13

United States v. Gibson, 928 F.2d 250 (8th Cir. 1991) ............................................... 13

United States v. Edwards, 891 F.3d 708 (8th Cir. 2018) ..................................... 2, 8, 9

Ybarra v. Illinois, 444 U.S. 85 (1979) ......................................................................... 14

Statutes

18 U.S.C. §3231 .............................................................................................................. 7

21 U.S.C. §841 ............................................................................................................... 6

21 U.S.C. §846 ................................................................................................................ 6

28 U.S.C. §1254(1) ......................................................................................................... 2

iii

Constitutional Provision

U.S. CONST. amend. IV .................................................................................................. 2

iv

IN THE

SUPREME COURT OF THE UNITED STATES

_____________________________________________

NALENZER LEE EDWARDS,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

_____________________________________________

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Eighth Circuit

_____________________________________________

PETITION FOR WRIT OF CERTIORARI

_____________________________________________

Nalenzer Lee Edwards respectfully prays that a writ of certiorari issue to

review the United States Court of Appeals for the Eighth Circuit’s May 31, 2018,

opinion holding that probable cause supported the warrantless arrest of Mr.

Edwards and the subsequent warrantless search of his vehicle, where police relied

on a confidential informant’s report that Mr. Edwards would be travelling to a

particular location and returning from that location with drugs.

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OPINION BELOW

The United States Court of Appeals for the Eighth Circuit’s opinion is

published at United States v. Nalenzer Lee Edwards, 891 F.3d 708 (8th Cir. 2018).

Petitioner’s Appendix (“Pet. App.”) A.

Western

District

of

Missouri

The order of the District Court for the

denying

petitioner’s

suppression

motion

is

unpublished. Pet. App. B.

STATEMENT OF JURISDICTION

The United States Court of Appeals for the Eighth Circuit entered judgment

on May 31, 2018. Petitioner timely filed this petition within ninety days of the

filing of the appellate court’s judgment and opinion.

This Court has jurisdiction pursuant to 28 U.S.C. §1254(1).

CONSTITUTIONAL PROVISION

The Fourth Amendment to the United States Constitution provides:

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.

U.S. CONST. amend. IV

2

STATEMENT OF THE CASE

I.

Material Facts

On June 10, 2015, a confidential informant advised Detective Giger of the

Columbia, Missouri, Police Department that Nalenzer Lee Edwards would be

traveling from Columbia to Jefferson City, Missouri, to obtain heroin from his

dealer. The confidential informant did not provide a specific address in Jefferson

City where the drug transaction would occur, but he did inform Detective Giger that

Mr. Edwards’ dealer was a black female named Tasha.

According to Detective

Giger, he had used this particular informant for several months prior to June 10,

2015, and found the informant’s information to be reliable.

Armed with the information from the informant, Detective Giger coordinated

with the Drug Enforcement Agency (DEA) and the Jefferson City Police

Department to surveil Mr. Edwards on the afternoon of June 10, 2015. During this

surveillance, law enforcement officers followed Mr. Edwards from a hotel in

Columbia to a house in Jefferson City.

Mr. Edwards entered the house and

remained there for about thirty minutes. He then drove back to the Columbia hotel

where his travel began. Mr. Edwards made no stops in Jefferson City, other than at

the house police watched him enter.

However, there is nothing in the record

showing with whom Mr. Edwards met in Jefferson City, if anyone.

Moreover,

nothing in the record confirms that Mr. Edwards actually picked up heroin.

Detective Greg Bestgen of the Jefferson City Police Department, who assisted

Detective Giger with the investigation, was familiar with the house Mr. Edwards

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visited, due to prior narcotics investigations. Detective Bestgen knew a woman

named Natasha Terrell resided there.

Based on the day’s activities, Detective

Bestgen decided to conduct a trash pull at the residence. That evening, he collected

trash left outside the house and searched it, discovering drug paraphernalia

consistent with drug trafficking. Detective Bestgen then applied for and received a

state search warrant for the residence but held off on executing it.

On June 17, 2015, Detective Giger’s confidential informant again informed

him that Mr. Edwards would be traveling from Columbia to Jefferson City to visit

his drug dealer to purchase heroin. And again, Detective Giger coordinated with

DEA and Jefferson City police to follow Mr. Edwards.

On his end, Detective

Bestgen coordinated with a SWAT unit from his department to execute the

previously obtained search warrant of the Terrell residence after Mr. Edwards left

there. Detective Bestgen also asked Jefferson City Police Officer Paul Gash to be on

standby, so Officer Gash could pull over Mr. Edwards after he left the house.

Detective Bestgen instructed Officer Gash to arrest Mr. Edwards on contact. No

one applied to a court to obtain either a warrant to arrest Mr. Edwards or a warrant

to search his car or hotel room.

During the afternoon of June 17th, Mr. Edwards again drove from Columbia

to the Terrell house in Jefferson City, followed by surveillance units. Upon arrival,

he entered the house. A short time later, Ms. Terrell arrived and entered the house

through her garage.

Mr. Edwards was at the house for a total of about thirty

minutes before leaving.

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Detectives followed Mr. Edwards from the scene until Officer Gash caught up

in his patrol car.

Officer Gash followed Mr. Edwards for a short while on the

highway between Jefferson City and Columbia, until they reached a stretch were

Officer Gash believed he could safely conduct a car stop. Once Officer Gash stopped

Mr. Edwards’ vehicle, he put handcuffs on Mr. Edwards and placed him in the back

of his patrol car, thus complying with Detective Bestgen’s directive to arrest Mr.

Edwards on contact. While following Mr. Edwards, Officer Gash did not observe

any traffic violations. Furthermore, detectives testified that no one ever saw Mr.

Edwards conduct any illegal activity in the Jefferson City house. Taken together,

this means the sole basis of the car stop and arrest was Detective Bestgen’s

directive.

After arresting Mr. Edwards, Officer Gash requested permission to search

Mr. Edwards’ vehicle, which Mr. Edwards denied. Officer Gash, who was also a K-9

officer, walked his trained drug-sniffing dog around the outside of Mr. Edwards’ car,

but the dog failed to alert to the presence of any drugs. At trial, Officer Gash opined

that his dog failed to alert to the presence of any drugs because only about four

minutes had elapsed from the time Mr. Edwards left the house to when he pulled

over Mr. Edwards. In any event, Officer Gash called Detective Bestgen, who told

him to search the car anyway, because there was sufficient probable cause to

support a search.

During his warrantless search of Mr. Edwards’ vehicle, Officer Gash noticed

a part of the instrument panel appeared loose. When he pulled on the panel, it

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came free of the dash and revealed four small, individually wrapped packages of

heroin.

Later lab testing confirmed that Officer Gash recovered approximately

twenty grams of heroin.

When the car stop was taking place, Detective Bestgen and the SWAT team

simultaneously executed the search warrant at the Terrell house. There, police

recovered approximately five grams of heroin, forty-five grams of crack cocaine, and

about $7,000.00 in cash. Additionally, one of the two persons in the house told

police that Mr. Edwards had left the house with twenty grams of heroin.

After his arrest, officers took Mr. Edwards to a police station in Jefferson

City, where he provided a Mirandized statement to detectives. In the statement,

Mr. Edwards admitted receiving from Ms. Terrell the twenty grams of heroin found

in his car and that, over the course of three to four months, he obtained

approximately one hundred grams of heroin from her.

Prior to trial, Mr. Edwards moved to have any evidence or statements derived

from his warrantless arrest and the warrantless search of his car suppressed. The

district court denied his motion, a decision the appellate court upheld.

II.

Proceedings Below

Based upon the investigation described above, a grand jury in the United

States District Court for the Western District of Missouri indicted Mr. Edwards

with one count of conspiracy to distribute heroin, in violation of 21 U.S.C. §846, and

one count of possessing heroin with the intent to distribute it, in violation of 21

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U.S.C. §841. The district court had original jurisdiction of the matter under 18

U.S.C. §3231, in that Mr. Edwards was charged with offenses against the laws of

the United States.

Mr. Edwards filed a motion to suppress evidence recovered due to his

warrantless arrest and the related warrantless search of his vehicle. Claiming it

was fruit of the poisonous tree, the motion also sought to suppress a subsequent

statement made during a police interview.

The magistrate judge conducted an

evidentiary hearing on September 28, 2015.

He filed his Report and

Recommendation, suggesting the denial of the suppression motion, on January 28,

2016.

The district court entered an order on March 8, 2016, adopting the

magistrate judge’s findings of fact and conclusions of law, and denying Mr.

Edwards’ motion.

After a two day trial concluded on May 3, 2016, a jury returned verdicts of

guilty on both counts of the indictment. On February 6, 2017, the district court

sentenced Mr. Edwards to a total of 156 months of imprisonment. An appeal timely

followed.

Mr. Edwards' trial counsel raised only one issue on appeal, namely whether

the district court erred in finding the warrantless arrest of Mr. Edwards and the

related warrantless search of his car did not offend the Fourth Amendment.

On May 31, 2018, a panel of the Eighth Circuit filed its judgment and

published its opinion, affirming the district court’s order denying the Mr. Edwards’

suppression motion. Specifically, the appellate court held that the statements of the

7

confidential informant combined with corroborating evidence gathered during the

investigation to establish probable cause to arrest Mr. Edwards for drug trafficking.

United States v. Edwards, 891 F.3d at 711.

REASONS FOR GRANTING THE PETITION FOR WRIT

This Court should grant certiorari because the opinion of the Eighth Circuit

is contrary to this Court’s controlling precedents concerning use of an informant’s

information to establish probable cause or reasonable suspicion to interact with a

suspect, including Navarette v. California, 572 U.S. 393 (2014); Florida v. J.L., 529

U.S. 266 (2000); Alabama v. White, 496 U.S. 325 (1990); Illinois v. Gates, 462 U.S.

213 (1983); Adams v. Williams, 407 U.S. 143 (1972); and Draper v. United States,

358 U.S. 307 (1959).

Each of these cases support the conclusion police had

reasonable suspicion to further investigate Mr. Edwards’ activities, but the

information known to police was not sufficient to support a finding of probable

cause at the moment they stopped Mr. Edwards’ vehicle and placed him under

arrest.

I.

The facts of this case support a finding that, at the time of Mr.

Edwards’ arrest, reasonable suspicion existed to believe he may have

been involved in criminal activity; however, the same facts do not

support a finding that probable cause for arrest existed.

The primary issue in this case is whether probable cause to arrest Mr.

Edwards existed at the moment police stopped his car for the purpose of arresting

him and searching his car. If there was no probable cause to arrest Mr. Edwards at

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the very moment of his stop, it follows that there was no probable cause to search

his car.1 This Court recently summarized probable cause to arrest in the following

way:

The Fourth Amendment protects the right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable

searches and seizures. Because arrests are seizures of persons, they

must be reasonable under the circumstances. A warrantless arrest is

reasonable if the officer has probable cause to believe that the suspect

committed a crime in the officer’s presence.

To determine whether an officer had probable cause for an arrest, we

examine the events leading up to the arrest, and then decide whether

these historical facts, viewed from the standpoint of an objectively

reasonable police officer, amount to probable cause. Because probable

cause deals with probabilities and depends on the totality of the

circumstances, it is a fluid concept that is not readily, or even usefully,

reduced to a neat set of legal rules. It requires only a probability or

substantial chance of criminal activity, not an actual showing of such

activity. Probable cause is not a high bar.

District of Columbia v. Wesby, 138 S.Ct. 577, 585-586 (2018)(internal quotations

and citations omitted).

On the other hand, reasonable suspicion is “‘a particularized and objective

basis for suspecting the particular person stopped’ of breaking the law.” Heien v.

North Carolina, 135 S.Ct. 530, 536 (2014).

A mere hunch does not create

reasonable suspicion, but “the level of suspicion the standard requires is . . .

‘obviously less’ than is necessary for probable cause.” Navarette v. California, 572

At some point after Mr. Edwards’ arrest, police interviewed someone in the

Jefferson City house, who said Mr. Edwards left the house with twenty grams of

heroin. This information was eventually forwarded to the arresting officer, but it

was not known to him at the time of arrest or initial K-9 search. The Eighth Circuit

found this additional information irrelevant, writing: “In any event, officers did not

need the second informant’s statement to establish probable cause, because

statements from the first informant and subsequent investigation were sufficient.”

United States v. Edwards, 891 F.3d at 712.

1

9

U.S. at 397. Despite this, “the Fourth Amendment requires at least a minimal level

of objective justification for making the stop.” Illinois v. Wardlow, 528 U.S. 119, 120

(2000).

This is a case related to the use of a confidential informant to establish

probable cause to arrest a person and then to search their car. The Court has

considered the use of informants a number of times, but the two cases most directly

on point—because of the use of confidential informants known to investigating

police—are Draper v. United States, 358 U.S. 307 (1959), and Adams v. Williams,

407 U.S. 143 (1972).

Draper is an example of a case where the use of a known, reliable informant

coupled with police corroboration of the informant’s information served to establish

probable cause for an arrest. There, a reliable informant advised a federal narcotics

agent that Draper was a drug dealer in Denver. A few days later, the informant

told the agent that Draper had travelled to Chicago by train, where he was going to

pick up three ounces of heroin and return to Denver by train on the morning of

September 8th or September 9th.

The informant gave the agent a detailed

description of what Draper would be wearing, and also said he would be carrying a

tan zipper bag and walking really fast. Draper v. United States, 358 U.S. at 309.

Based on this information, the agent went to the train station on the morning

of September 8th and watched the passengers disembarking from all trains coming

from Chicago. He did not find Draper, so the agent returned to the station the

following morning. On that day, the agent enjoyed greater success, in that he saw

10

Draper get off a train from Chicago, dressed as predicted and carrying a tan bag.

Draper also started walking fast to the exit. When the agent and a local police

officer with him caught up to Draper, they arrested him and found him to be in

possession of two packages of heroin and a syringe. Draper v. United States, 358

U.S. at 309-310.

After a conviction for violating federal narcotics laws, Draper complained

that the informant’s information was insufficient to show that he was violating the

law or to justify his warrantless arrest. In response, this Court wrote: “Probable

cause exists where ‘the facts and circumstances within the arresting officers’

knowledge and of which they had reasonably trustworthy information are sufficient

in themselves to warrant a man of reasonable caution in the belief that’ an offense

has been or is being committed.” Draper v. United States, 358 U.S. at 313. In light

of the informant’s prior reliability and the agent’s ability to corroborate every detail

of the informant’s information, including a return from Chicago, the carrying of a

tan zipper bag, and Draper’s penchant for walking fast, the Court ruled that

probable cause existed for Draper’s arrest. Draper v. United States, 358 U.S. at

313-314.

In Adams, the focus was on whether a police officer, based on a known

informant’s tip, had reasonable suspicion to suspect a man named Robert Williams

would be in possession of a gun and drugs. In that case, a police officer was on

patrol in a high crime area. A person known to the officer approached his cruiser

and told him that a person sitting in a nearby vehicle was carrying narcotics and

11

had a gun on his hip.

The officer approached the vehicle to investigate the

information. He tapped on a car window and asked the occupant, Williams, to open

the door. When Williams rolled down his window instead, the officer reached inside

and pulled a concealed revolver from Williams’ waist. The revolver was in the exact

location the informant had described. The officer then placed Williams under arrest

for unlawful possession of the revolver. Subsequent searches of Williams and the

car revealed an additional firearm and heroin. Adams v. Williams, 407 U.S. at 144145.

In response to Williams’ argument that the informant’s tip did not provide

the officer justification for seizing his revolver, which led to the later arrest and

search, the Court started: “The Fourth Amendment does not require a policeman

who lacks the precise level of information necessary for probable cause to arrest to

simply shrug his shoulders and allow a crime to occur or a criminal to escape.”

Adams v. Williams, 407 U.S. at 145. Rather, Terry v. Ohio allows an officer to

investigate the possibility of criminal activity even absent probable cause for an

arrest, and where that officer is justified in believing the person being investigated

is armed and dangerous, he may conduct a limited search to assure his safety.

Adams v. Williams, 407 U.S. at 145-146, citing Terry v. Ohio, 392 U.S. 1, 24 (1968).

In the end, the Court in Adams decided that the informant’s tip, largely

unverified, may not have been sufficient to establish probable cause, but it was

reliable enough to justify the officer’s forcible stop of Williams. Adams v. Williams,

407 U.S. at 147.

12

The controlling facts in the instant case are more closely aligned to Adams

than Draper.

Unlike Draper, where the federal agent corroborated every detail

provided by his informant, the police here did nothing but follow Mr. Edwards to

and from Jefferson City. Because of this, information associated with Mr. Edwards’

supposed criminal activity was left largely unverified, as was the case in Adams.

Indeed, police only corroborated innocent details provided by the informant,

namely that Mr. Edwards would be driving to and from Jefferson City. United

States v. Gibson, 928 F.2d 250, 253 (8th Cir. 1991)(Where informant’s tip is detailed

and based on personal observation, police failure to corroborate anything but the

innocent details leaves finding of probable cause lacking.). Police did not confirm

that Tasha, whom the confidential informant said was Mr. Edwards’ dealer, was the

same person as Natasha Terrell. United States v. Freitas, 716 F.2d 1216, 1222 (9th

Cir. 1983)(“The hypothesis that the ‘Mike’ named by the informant was [defendant]

Michael Buster was strictly conjecture on the part of the agents, and was not

confirmed by the informant.”). Police did not see Mr. Edwards actually meet with

anyone in Jefferson City, although during his second trip Ms. Terrell was observed

to arrive at and enter a house in which Mr. Edwards was previously observed to

enter. Neither the confidential informant nor police saw Mr. Edwards buy heroin or

stash it in his car, even though he was under law enforcement’s constant

surveillance.

Police, apparently, did not ask the confidential informant whether Mr.

Edwards returned from his first trip with heroin. Prior to stopping Mr. Edwards’

13

car during the return from his second trip to Jefferson City, police did nothing to

corroborate that he purchased and possessed heroin.

Again, an informant’s

knowledge of a suspect’s future movements may be indicative of some familiarity

with the suspect’s affairs, but it does not necessarily imply the informant knows

whether the suspect is carrying hidden contraband. Navarette v. California, 572

U.S. at 399, citing Florida v. J.L., 529 U.S. at 271; see also Carter v. Hamaoui, 699

Fed.Appx. 519, 530 (6th Cir. 2017)(unpublished)(Tip that a black flatbed truck

headed eastbound on highway, loaded with soda cans and bags of marijuana, is

insufficient, because it merely described a condition that existed at the time of the

call.).

It is telling in this case that police obtained a search warrant of the Terrell

house in Jefferson City after Mr. Edwards’ first visit there, but they did not seek a

search warrant for Mr. Edwards’ hotel room after the visit. Police were fully aware

they lacked probable cause for such a search, and they developed no additional

evidence of Mr. Edwards’ alleged criminal activities thereafter. This Court has held

that “[w]here the standard is probable cause, a search or seizure of a person must

be supported by probable cause particularized with respect to that person.” Ybarra

v. Illinois, 444 U.S. 85, 91 (1979). Further, “a person’s mere propinquity to others

independently suspected of criminal activity does not, without more, give rise to

probable cause . . .” Ybarra v. Illinois, 444 U.S. at 91. Because of the lack of

additional investigation into Mr. Edwards’ activities, when it comes to arguing for

probable cause, the government is compelled to hang its hat on the fact that Mr.

14

Edwards visited the house of a person “independently suspected of criminal

activity.” That approach, obviously, is insufficient to establish probable cause.

CONCLUSION

For the reasons above, Nalenzer Lee Edwards submits that the Eighth

Circuit erred in finding probable cause existed to stop the vehicle driven by Mr.

Edwards for the purpose of placing him under arrest and conducting a warrantless

search of the vehicle. The opinion of the Eighth Circuit is in direct conflict with the

precedents of this Court and with the opinions of the other federal circuits.

Accordingly, Mr. Edwards respectfully prays that this Court grant his petition for

writ of certiorari and reverse the Eighth Circuit’s opinion.

Respectfully submitted,

/s/ John G. Gromowsky

JOHN G. GROMOWSKY

Attorney for Petitioner

Nalenzer Lee Edwards

The Gromowsky Law Firm, LLC

1100 Main Street, Suite 2800

Kansas City, Missouri 64105

E-Mail: jgromowsky@gromowsky-law.com

Telephone: (816) 842-1130

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