Petition for Writ of Certiorari — Oscar Henry Steinmetz, Petitioner v. United States

No.

SUPREME COURT OF THE UNITED STATES

OSCAR HENRY STEINMETZ,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Eighth Circuit

PETITION FOR A WRIT OF CERTIORARI

Philip G. Scanlon

Counsel for Petitioner

Taaffe & Associates, LLC

1015 Locust St., Ste. 725

St. Louis, Missouri 63101

(314) 241-3700 (office phone)

(314) 241-3710 (office fax)

phil@taaffeandassociates.com

I. QUESTIONS PRESENTED

1.

Does the law regarding searches, seizures, and consent need clarification for

proper guidance and application?

2.

Should a law enforcement officer be required to notify a suspect of his or her

rights under the Fourth Amendment before requesting the suspect’s consent

to search?

i

II. TABLE OF CONTENTS

I. Question Presented

i

II. Table of Contents

ii

III. Table of Authorities

iii-iv

IV. Petition for Writ of Certiorari

5

V. Opinions Below

5

VI. Jurisdiction

5

VII. Constitutional Provisions

5-6

VIII. Statement of the Case

7-8

IX. Reasons for Granting the Writ

9-20

X. Conclusion

21

XI. Appendix

Opinion (8th Cir.) (August 15, 2018)

A-L

ii

III. TABLE OF AUTHORITIES

Cases

Betts v. Brady, 316 U.S. 455 (1942)

10

Boyd v. United States, 116 U.S. 616 (1886)

11, 18

Cody v. Solem, 785 F.2d 1323 (8th Cir. 1985)

17

Collins v. City of Harker Heights, 112 S.Ct. 1061 (1992)

12

Davis v. United States, 328 U.S. 582 (1946)

11

Florida v. Bostick, 501 U.S. 429 (1991)

15

Florida v. Jimeno, 500 U.S. 248 (1991)

14, 18

Florida v. Royer, 46 U.S. 491 (1983)

15

Gideon v. Wainwright, 412 U.S. 218 (1963)

10

Griswold v. Connecticut, 381 U.S. 479 (1965)

19

Kadrmas v. Dickinson Public Schools, 487 U.S. 450 (1987)

12

Katz v. United States, 389 U.S. 347 (1967)

11

Lochner v. New York, 198 U.S. 45 (1905)

19

Michigan v. Chesternut, 486 U.S. 567 (1988)

15

Miranda v. Arizona, 384 U.S. 436 (1966)

9-11

Ohio v. Robinette, 519 U.S. 33 (1996)

15

Schmerber v. California, 384 U.S. 757 (1966)

11

Schneckloth v. Bustamonte, 412 U.S. 218 (1973)

13-16, 18

Smith v. Wainwright, 581 F.2d 1149 (5th Cir. 1978)

17

United States v. Faruolo, 506 F.2d 490 (2d Cir. 1974)

17

iii

United States v. Glenna, 878 F.2d 867 (7th Cir. 1989)

17

United States v. Gonzalez-Garcia, 708 F.3d 684 (5th Cir. 2013)

15-16

United States v. Hidalgo, 7 F.3d 1566 (11th Cir. 1993)

17

United States v. Lemon, 550 F.2d 467 (9th Cir. 1977)

17

United States v. Lewis, 921 F.2d 1294 (D.C. Cir. 1990)

17

United States v. Lucas, 640 F.3d 168 (6th Cir. 2011)

16

United States v. Rabinowitz, 339 U.S. 56 (1950)

12-13

United States v. Rodriguez-Garcia, 983 F.2d 1563 (10th Cir. 1993)

17

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

13, 16

United States v. Whisenton, 765 F.3d 938 (8th Cir. 2014)

16-17

Williamson v. Lee Optical of Oklahoma, 348 U.S. 483 (1985)

19

Constitutional Amendments

Fourth Amendment

5

Fifth Amendment

5-6

Sixth Amendment

6

Secondary Sources

Craig M. Bradley, Two Models of the Fourth Amendment,

83 Mich. L. Rev. 1468 (1985)

12

Nelson B. Lasson, THE HISTORY AND DEVELOPMENT OF THE FOURTH

AMENDMENT TO THE UNITED STATES CONSTITUTION 13 (1970)

11

iv

IV. PETITION FOR WRIT OF CERTIORARI

Oscar Henry Steinmetz, an inmate currently incarcerated at the United

States Medical Center for Federal Prisoners located in Springfield, Missouri, by and

through Counsel, Philip G. Scanlon, respectfully petitions this Court for a writ of

certiorari to review the judgment of the United States Court of Appeals for the

Eight Circuit.

V. OPINIONS BELOW

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

reported as United States v. Oscar Steinmetz (8th Cir. 2018) (App. A-L). The

Eighth Circuit’s opinion was entered on August 15, 2018 (App. A-L).

VI. JURISDICTION

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

timely filed this petition for a writ of certiorari within ninety days of the judgment

of the Eight Circuit Court of Appeals.

VII. CONSTITUTIONAL PROVISIONS

The Fourth Amendment to the United States Constitution states as follows:

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.

The Fifth Amendment to the United States Constitution states as follows:

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

unless on a presentment of 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

5

offence 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, with our without just compensation. U.S. Const. Amend

V.

The Sixth Amendment to the United States Constitution states as follows:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and

public trial by an impartial jury of the State and district wherein the crime

shall have been committed, which district shall have been previously

ascertained by law, and to be informed of the nature and cause of the

accusation; to be confronted with the witnesses against him; to have

compulsory process for obtaining witnesses in his favor, and to have the

Assistance of Counsel for his defence. U.S. Const. Amend VI.

6

VIII. STATEMENT OF THE CASE

Steinmetz was accused of sexual assault and taking nude photographs of a

minor. Police suspected that evidence of child pornography were present in

computers or hard drives within Steinmetz’ residence. Investigation led to a station

house interrogation lasting over seven hours and involving two detectives.

During Steinmetz’ interrogation, there were multiple discussions concerning

Steinmetz’ consent to search his residence. Approximately one hour and fourteen

minutes into the interrogation, the detective at that time made the first attempt to

obtain Steinmetz’ consent. Upon the detective’s request, Steinmetz asks if he would

be released if he did so. The detective responds that she cannot make that decision.

Shortly after, the detective makes a second attempt to obtain Steinmetz’ consent.

The detective presented Steinmetz with a Consent to Search form. Said form did

not detail the items to be searched and generally lists his entire house as the object

of the search. Said form included the clause, “I understand that I have the right to

refuse to consent to the search described above[.]” After review but prior to

Steinmetz signing the form, he asked if he could be present during the search. The

detective responded, “Okay” but later testified that she had no intention of

Steinmetz being present.

Approximately four hours into the interrogation, Steinmetz is confronted

with a second interrogating detective. Steinmetz is informed that this detective

would be conducting the search which led Steinmetz to repeat his desire to be

present during the search. Steinmetz is told that his presence would delay the

7

process, that the detective would supervise the search, and that the search would be

“minimal” and “unlike a search warrant”.

Steinmetz is asked for his consent to search a third time and is presented

with a second form. The detective explained the form pertained to Steinmetz’

computer and password and made no reference to hard drives, thumb drives, or

other computer equipment being searched. Steinmetz asked the detective about the

details and procedure of the search, but the detective does not respond. Steinmetz

then signed the form. Soon thereafter, the detective informed Steinmetz that the

search was completed and Steinmetz became visibly upset, impliedly, because he

realized he was not present during the search.

Steinmetz was indicted on the charge of Production of Child Pornography.

Steinmetz moved to suppress the evidence on the grounds that the search was in

violation of the Fourth Amendment. His motion was denied.

After a jury trial, Steinmetz was convicted of the charge and sentenced to 240

months incarceration, a $10,000.00 fine, and restitution in the amount of

$69,284.00.

Steinmetz timely filed a Notice of Appeal. Oral Argument was heard by the

Eighth Circuit Court of Appeals on April 12, 2018. As part of Steinmetz argument,

he proposed the implementation of prophylactic warnings that notify custodial

suspects of their rights concerning searches and seizures. The Eighth Circuit

denied Steinmetz’ appeal and issued its opinion on August 15, 2018 (App. A-L).

8

IX. REASONS FOR GRANTING THE WRIT

This Court should grant certiorari in this case to further clarify the rights

pursuant to the Fourth Amendment, and, additionally, implement prophylactic

warnings to those in custodial interrogations when asked for consent to search.

This is an important question of law that needs to be settled by this Court.

Our Constitution is rooted in personal freedoms and instituted by persons

who fought for their existence. Our system of law is predicated on the supreme

importance of individual protection from excess governmental power. This Court’s

decision in Miranda details the sanctity of rights under the Fifth and Sixth

Amendment but does not extend to Fourth Amendment rights. Debate regarding

Fourth Amendment rights has continued since Miranda. This Court needs to

clarify the questions surrounding this issue and guide our system of law.

This Court’s review of this issue would provide much needed clarification and

guidance for individuals, law enforcement, and legal practitioners. By

implementing said prophylactic warnings, this Court would: (1) strengthen

investigative procedures and the admission of evidence, (2) restore the historical

purpose and importance of the Fourth Amendment, (3) strengthen individual

liberties, (4) increase transparency in the investigative process, and (5) promote

trust between the people and law enforcement.

9

I.

This Court needs to clarify the importance and scope of the Fourth

Amendment, in context with the Fifth and Sixth Amendments, to resolve

consistent and perplexing ambiguities pertaining to consensual searches.

A.

The law pertaining to suspects’ rights in custodial interrogations

creates an imbalance between Fifth and Sixth Amendment protections and

Fourth Amendment Protections.

The Fifth Amendment gives individuals the right to be free from selfincrimination. U.S. Const. Amend V. The Sixth Amendment gives individuals the

right to be assisted by counsel in defense of criminal prosecutions. U.S. Const.

Amend VI.

In Miranda, this Court clarified the tantamount importance of an

individual’s Fifth and Sixth Amendment rights. Miranda v. Arizona, 384 U.S. 436,

439 (1966) (stating that the right against self-incrimination goes “to the roots of our

concepts of American criminal jurisprudence: the restraints society must observe

consistent with the Federal Constitution in prosecuting individuals for crime.”) The

Miranda Court held that clear and unequivocal warnings must be given to an

accused prior to being asked questions in a custodial interrogation. See id. at 46774. The Miranda decision furthered individual liberties and was an extension of

prior cases increasing Constitutional protections. See Gideon v. Wainwright, 412

U.S. 218 (1963) (holding an accused has an absolute right to counsel thereby

overturning Betts v. Brady, 316 U.S. 455 (1942)). The Miranda Court noted that if

there are not proper limitations on a custodial interrogation, there is no assurance

that rights under the Fifth and Sixth Amendments are protected. Id. at 447. The

Miranda Court did not explicitly state how or if its decision impacted Fourth

10

Amendment protections. See generally id. (in entirety); (See also Schmerber v.

California, 384 U.S. 757, 764 (1966) (stating that Miranda does not extend to a

suspect being the source of real or physical evidence)).

The Fourth Amendment gives individuals the right to be free from

warrantless searches and seizures. U.S. Const. Amend IV. The Fourth Amendment

detracts from excess police power and instills that our Constitution does not tolerate

the tactics of a police state. See Davis v. United States, 328 U.S. 582, 597 (1946).

The fundamental right to be secure in one’s person, home, and property is not new

to modern society but rooted in ancient philosophy. See Nelson B. Lasson, THE

HISTORY AND DEVELOPMENT OF THE FOURTH AMENDMENT TO THE UNITED STATES

CONSTITUTION 13 (1970). It is unquestioned that Fourth Amendment rights are

stitched into the very fabric of American society, essential to democratic values, and

intertwined with the protection against self-incrimination. Boyd v. United States,

116 U.S. 616, 630 (1886) (stating, “any forcible and compulsory extortion of a man’s

own testimony, of his private papers to be used as evidence to convict him of a

crime…In this regard, the fourth and fifth amendments run almost into each other.”

(emphasis added)).

Unlike custodial statements that are self-incriminating or made without

counsel, a warrantless search is reviewed based only on its objective

“reasonableness” under the totality of the circumstances. Katz v. United States, 389

U.S. 347, 361 (1967). Practically speaking, the reasonableness of a search is

determined using the rational basis standard—the same test used to decide equal

11

protection and due process challenges to social and economic legislation. See

Collins v. City of Harker Heights, 112 S.Ct. 1061, 1070 (1992) (holding that a City’s

failure to train and warn employees of risks of harm was not a due process violation

as governmental programs are presumed valid and rationally based and weighed

against competing social, political, and economic interests); See also Kadrmas v.

Dickinson Public Schools, 487 U.S. 450, 457-58 (1987) (finding that a statute

survives equal protection attack if the challenged legislation is rationally related to

legitimate governmental purposes).

The problem with the reasonableness criterion is that it leads to balancing

the government’s interest in effective law enforcement against individual interests

in personal security and privacy—which almost always results in a subjective

decision against personal liberty. Craig M. Bradley, Two Models of the Fourth

Amendment, 83 Mich. L. Rev. 1468, 1472 (1985) (stating, “The Court purports to set

forth clear rules while actually adjusting them constantly to accommodate each new

fact situation.”). The reasonableness criterion also applies Fourth Amendment

protections to those in the criminal milieu. See United States v. Rabinowitz, 339

U.S. 56, 69 (1950) (stating in Justice Black’s dissent “[i]t is a fair summary of

history to say the safeguards of liberty have frequently been forged in controversies

involving not very nice people.”) This approach lacks context and results in

deferential determinations on the side of police intrusion. Id. at 83 (stating in

Justice Black’s dissent, “To say that the search must be reasonable is to require

12

some criterion of reason. It is no guide…to say that an ‘unreasonable search’ is

forbidden—that the search must be reasonable.”).

The law’s problematic treatment of the Fourth Amendment was substantially

furthered in Schneckloth. Schneckloth v. Bustamonte, 412 U.S. 218 (1973). In

Schneckloth, this Court found that the prosecution need only show that a suspect

voluntarily consented to a search when given in a non-custodial atmosphere. Id. at

248. This Court defined “voluntary” consent as consent that is objectively

reasonable based on the totality of circumstances. Id. at 225-26. The determination

of “reasonableness” weighs the societal interest in effective law enforcement against

personal liberties under the Fourth Amendment. See id. This Court declined to

follow the Ninth Circuit in requiring that the consenting suspect be made aware of

his or her rights. Id. at 229. This Court noted the impracticality of warning a

suspect of his Fourth Amendment rights in the context of a non-custodial

atmosphere. Id. at 231. Warnings elucidated in Miranda were distinguished from

Fourth Amendment rights by finding rights under the Fifth and Sixth Amendment

protect trial fairness whereas the Fourth Amendment does not. Id. at 235-37.

Specifically, the Schneckloth Court found that the Fourth Amendment in a noncustodial context is not an adjunct for truth. Id. at 242. As such, the Court stated,

“The considerations that formed the court’s holding in Miranda are simply

inapplicable to the present case.” Id. at 246. Inevitably, the holding in Schneckloth

was extended to custodial interrogations in Watson. United States v. Watson, 423

U.S. 411, 424 (1976).

13

The reasonableness standard is inherently biased against Fourth

Amendment rights and minimizes the protections of the Fourth Amendment.

Examples of the ambiguities of the reasonableness standard and the inherent bias

toward law enforcement has been illustrated in every circuit. Such is exemplified in

the majority opinion in Jimeno wherein Fourth Amendment protections were

minimized in finding that general consent to search a vehicle reasonably extended

to the search of containers inside the vehicle. Florida v. Jimeno, 500 U.S. 248

(1991). However, in a detailed and emphatic dissenting opinion, Justice Marshall

pointed out the inherent and recurring problem in using such an ambiguous

standard. Id. at 254. Marshall’s opinion highlights that law enforcement efficacy

cannot detract from the protections of the Fourth Amendment. See id. In the

context of a search, Justice Marshall promoted the requirement of an officer to

transparently and unequivocally notify the suspect of the scope and object of the

search to obtain valid consent. Id. The dissent demonstrates that the

reasonableness standard easily allows an officer to exploit the ignorance of an

individual to circumvent the individual’s security—effectually finding law

enforcement effectiveness more important than individual rights. Id. at 255-56.

Justice Marshall ends his opinion emphasizing the ongoing problem with the

practical value of a person’s Fourth Amendment rights by quoting his opinion in

Schneckloth:

[I]t would be “practical” for the police to ignore the commands of the Fourth

Amendment, if by practicality we mean that more criminals will be

apprehended, even though the constitutional rights of innocent people go by

the board. But such a practical advantage is achieved only at the cost of

14

permitting the police to disregard the limitations that the Constitution places

on their behavior, a cost that a constitutional democracy cannot long absorb.

Id. at 256 (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 288 (1973).

B.

The imbalance between Fourth, Fifth, and Sixth Amendment

protections and the decreasing value of personal security is evident in every

circuit thereby increasing the need for judicial clarification and precedential

revision.

The continued validation of the reasonableness standard and legitimization

of varying law enforcement practices inevitably leads to the question of whether

consent in a custodial atmosphere is ever unreasonable.

In Robinette, this Court affirmed the rejection of bright-line rules defining

reasonableness due to the limitless variations of facts and circumstances where

searches occur and consent is given. Ohio v. Robinette, 519 U.S. 33, 38-39 (1996)

(citing Florida v. Royer, 46 U.S. 491 (1983); Michigan v. Chesternut, 486 U.S. 567

(1988); Florida v. Bostick, 501 U.S. 429 (1991). However, Justice Stevens’

dissenting opinion notes that there is no federal law precluding admonishing

suspects of their rights under the Fourth Amendment. Id. at 52. Nevertheless,

Justice Stevens notes that although warnings would benefit law enforcement, the

courts, and the public at large, it is not a question for the United States Supreme

Court to decide. Id. at 52-53.

The Fifth Circuit minimized Fourth Amendment protections by finding

reasonable consent despite flagrant Miranda violations and officers demanding a

suspect’s decision. United States v. Gonzalez-Garcia, 708 F.3d 684, 684-688 (5th

Cir. 2013). The Fifth Circuit found that Miranda does not attach to physical

evidence seized as a result of a consensual search. Id. at 687. The Court deferred to

15

the case-by-case analysis of consent and searches thereto and furthered the

disapproval of bright-line rules. Id. at 688 (following Schneckloth and Watson).

The Sixth Circuit in Lucas minimized Fourth Amendment protections

regarding reasonableness and consent. United States v. Lucas, 640 F.3d 168 (6th

Cir. 2011). In Lucas, a suspect believed to be manufacturing marijuana was asked

to sign a consent to search form in the presence of five officers. Id. at 170. Upon

the suspect’s hesitancy, officers warned of the inevitability of a search warrant

leading the suspect to sign the form which included notice of his right to refuse and

withdraw consent and authorization for officers to search for drug related evidence.

Id. at 170-71. The search of the suspect’s residence led to the search of his

computer, hard drive, and thumb drive and the seizure of child pornography. Id. at

171-72. The Court found that consent was reasonable and that the search’s scope

extended to the computer, hard drive, and thumb drive due to the form’s contents.

Id. at 174-79.

The Eighth Circuit in Whisenton minimized Fourth Amendment protections

by finding illegal entry of multiple, armed officers into an individual’s home led to

reasonable consent due to “intervening circumstances”. United States v. Whisenton,

765 F.3d 938, 940 (8th Cir. 2014). After police entry, the suspect was effectually in

custody and non-responsive to the officers’ request for consent. Id. Officers then

notified the suspect of the inevitability of a search warrant if no consent was given.

Id. The suspect was given the opportunity to smoke a cigarette and understand the

scope of the search before signing a form that included notice of the suspect’s right

16

to refuse. Id. The Eighth Circuit found that a fifteen minute lapse between the

illegal entry and consent, the suspect’s affirmation of his right to refuse, and the

absence of his withdrawal of consent was enough for the search to be valid and the

illegal entry to be overcome. Id.

The Eleventh Circuit in Hidalgo found valid consent by a Spanish speaking

suspect despite (1) invoking his right to silence prior to consent, and (2) being

woken up to the commands of gun wielding officers, ordered to the floor, and

presented with a consent form in English. United States v. Hidalgo, 7 F.3d 1566,

1567-71 (11th Cir. 1993). In regards to the relationship between invoking Miranda

and consent to search, the 11th Circuit noted that every federal circuit ruled

Miranda warnings irrelevant to the issue of consent to search. Id. at 1568 (citing

Smith v. Wainwright, 581 F.2d 1149, 1152 (5th Cir. 1978); United States v. Lemon,

550 F.2d 467, 472 (9th Cir. 1977); United States v. Rodriguez-Garcia, 983 F.2d 1563,

1568 (10th Cir. 1993); United States v. Lewis, 921 F.2d 1294, 1303 (D.C. Cir. 1990);

United States v. Glenna, 878 F.2d 867, 971 (7th Cir. 1989); Cody v. Solem, 785 F.2d

1323, 1330 (8th Cir. 1985); United States v. Faruolo, 506 F.2d 490, 495 (2d Cir.

1974). In regards to the reasonableness of the consent in light of the circumstances,

the 11th Circuit found that because the individual had the form explained to him,

his consent was valid and the search was reasonable. Id. at 1570-71.

The preceding examples, albeit a snapshot of those available, illustrate the

need for further guidance from the Court in regards to when a search pursuant to

consent is unreasonable. The cases, supra, are examples of what Justice Marshall

17

warned of in Schneckloth and Jimeno. All preceding cases illustrate the lack of

direction the law provides and the continual trend of using the reasonableness

standard as a rubberstamp for police procedure and against individual liberty. We

cannot use the same standard in judging the legitimacy of economic legislation that

we do in judging the infringements upon individual protections of person, property,

and possessions. Such is contrary to the importance that the Framers intended

when granting the rights espoused in the Fourth Amendment.

II.

This Court needs to decide the issue regarding prophylactic

warnings in situations where custodial suspects are asked for consent to

search, and, in turn, make such warnings a requirement.

Boyd was decided 132 years ago. That decision made explicit the Court’s

understanding of the importance of the Fourth Amendment, what fighting for the

Fourth Amendment cost the Framers in allowing it to be protected in this Country,

and the sanctity of its application. Today, the importance of the Fourth

Amendment and its practical protection is diluted. Its present state is the result of

an ambiguous standard that rationalizes broad police powers. The current state of

the Fourth Amendment is precisely what Justice Marshall feared.

The Fourth Amendment is not afforded the same protections as the Fifth and

Sixth Amendments because the opinion that it is not inherently connected to trial

and reliable determination of truth. However, the purpose of a search is to get

closer to truth by finding evidence of a suspect’s guilt. The reason courts repeatedly

review this issue is because a person that consented was found guilty at the very

trial the law says the Fourth Amendment is not connected to. A suspect’s assertion

18

of consent, especially in custodial interrogations, is a statement that often extorts

the relinquishment of a person’s fundamental right and the deciding factor in

proving guilt.

Regardless of the Fourth Amendment’s connection to trial and its historical

importance, warrantless searches are measured using a standard that is too benign.

The reasonableness standard is the same standard used to determine the legality of

limits on bakers’ work hours1, activities of opticians2, and the sale of

contraceptives3. Such a test has resulted in the decay of Fourth Amendment

protections to the benefit of investigative practices. The increased power of law

enforcement is part of the ever-increasing divide between the community and law

enforcement. Similarly, Miranda was decided in a time of unrest between American

citizens and law enforcement. Its decision was a check on police power that

promoted transparency and fairness between the accused and police.

This Court has repeatedly refused to implement bright-line rules clarifying

reasonableness citing the varying circumstances in which it is reviewed. This Court

continues to avoid deciding upon whether to require prophylactic warnings

regarding a person’s Fourth Amendment rights and defers to state courts.

However, the problem is circular as state courts are left with the ambiguous

standard that perpetuates the same issues. More guidance on the issue is

1 Lochner v. New York, 198 U.S. 45 (1905)

2 Williamson v. Lee Optical of Oklahoma, 348 U.S. 483 (1985)

3 Griswold v. Connecticut, 381 U.S. 479 (1965)

19

necessary whether it results in the implementation of prophylactic warnings or not.

However, this Court’s implementation of prophylactic warnings of a custodial

suspect’s Fourth Amendment rights would provide multiple practical and systemic

benefits. It would: (1) clarify the reasonableness determination by starting the

analysis with the threshold question of whether rights were read; (2) increase the

admissibility of evidence by further legitimizing investigatory procedures; (3)

increase the use of search warrants as impliedly preferred under the plain language

of the Fourth Amendment; (4) instill and substantiate the importance of Fourth

Amendment protection; and, (5) increase trust between the populace and law

enforcement by furthering transparency and decreasing manipulative police tactics.

Steinmetz proposes the implementation of required warnings, their

retroactive application to his case, and the finding that their absence in his

interrogation invalidates the admission of evidence seized pursuant to his consent.

Such warnings should be required when law enforcement requests a custodial

suspect to consent to a search. Either oral or written, warnings should notify a

suspect of the following: (1) the right to refuse consent, (2) the possibility of law

enforcement obtaining a search warrant in light of refusal, (3) the right to condition

consent, and, (4) if consent is given, the right of officers to search for evidence and

the use of evidence seized against the suspect.

This Court has an opportunity to further guide law enforcement, the courts,

practitioners, and all individuals in our society in its review.

20

X. CONCLUSION

This petition for a writ of certiorari should be granted.

Respectfully Submitted,

/s/ Philip G. Scanlon

Philip G. Scanlon

Counsel for Petitioner

Taaffe & Associates, LLC

1015 Locust St., Ste. 725

St. Louis, Missouri 63101

(314) 241-3700 (office phone)

(314) 241-3710 (office fax)

phil@taaffeandassociates.com

21

XI. APPENDIX

United States of America, Plaintiff - Appellee,

v.

Oscar Henry Steinmetz, Defendant - Appellant.

No. 17-3061

United States Court of Appeals For the Eighth Circuit

Submitted: April 12, 2018

August 15, 2018

Appeal from United States District Court for the Eastern District of Missouri - St.

Louis

Before COLLOTON, ARNOLD, and SHEPHERD, Circuit Judges.

COLLOTON, Circuit Judge.

Oscar Henry Steinmetz was convicted of producing child pornography, in

violation of 18 U.S.C. § 2251(a). At trial, the government introduced evidence that

law enforcement officers had seized from Steinmetz's home during a warrantless

Page 2

search. Steinmetz contends that the district court1 erred in denying his motion to

suppress this evidence because he did not voluntarily consent to the search.

Alternatively, he asserts that even if his consent was voluntary, the search exceeded

the scope of his consent. Steinmetz also argues that the district court erred by

overruling his objections to certain prejudicial testimony and by restricting his right

to cross examine his accuser. We conclude that there was no reversible error, and

therefore affirm.

A

I.

The child pornography investigation began in April 2015 when a woman in her

late twenties, identified as E.S., made a complaint to the Maryland Heights Police

Department in Missouri. E.S. alleged that Steinmetz, her stepfather, had abused

her when she was between the ages of thirteen and sixteen. Some of the abuse

occurred while E.S. and Steinmetz were watching pornographic Japanese anime

films, a type of animated production. E.S. also reported that Steinmetz had

photographed some of the abuse.2

Detective Kendra House decided to contact Steinmetz and ask for consent to

search his residence and computers. On May 1, 2015, she and another detective

approached Steinmetz at his workplace, and he agreed to accompany them to the

police station. The government maintains that Steinmetz, during an interview,

Page 3

consented to a search of his residence and computers. Investigators then searched

the house and found incriminating evidence. A grand jury charged Steinmetz with

production of child pornography.

Steinmetz moved to suppress all evidence that investigators seized during the

search. After a hearing, a magistrate judge recommended denying the motion, and

the district court adopted the recommendation. The court found that Steinmetz

voluntarily consented to the search of his residence, computers, and other media,

and that investigators did not exceed the scope of his consent. The record on the

motion included testimony from Detective House, a videorecording of the Steinmetz

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interview, consent forms and waiver forms that Steinmetz signed, and photographs

taken during the search.

Steinmetz also moved in limine to exclude certain evidence as unfairly

prejudicial. The disputed evidence included (1) testimony that Steinmetz sexually

abused E.S. when she was between the ages of thirteen and sixteen; (2)

pornography from Steinmetz's computer that depicted child victims other than E.S.;

(3) pornographic anime that investigators seized from Steinmetz's residence; and (4)

images of E.S.'s mother wearing a bondage costume that E.S. was wearing in other

images. The court ruled that the evidence of sexual abuse and pornographic anime

was admissible as inextricably intertwined with the child pornography charge. The

court concluded that the pornographic images of other children were admissible

under Federal Rule of Evidence 404(b) to show identity and under Rule 414 as

evidence of similar crimes in a child molestation case. The court reserved ruling on

the images of E.S.'s mother wearing the bondage costume, but ultimately allowed

the prosecution to present one such image.

Page 4

A jury found Steinmetz guilty of production of child pornography. The district

court sentenced him to 240 months' imprisonment.

II.

Steinmetz first argues that the district court erred in denying his motion to

suppress evidence that investigators seized during the search of his residence. The

Fourth Amendment generally permits investigators to conduct a warrantless search

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of a home if they obtain a resident's voluntary consent. Fernandez v. California, 571

U.S. 292, 298-301 (2014). Whether a person voluntarily consented to a search is a

factual determination that we review for clear error. Schneckloth v. Bustamonte,

412 U.S. 218, 227 (1973); United States v. Quintero, 648 F.3d 660, 665 (8th Cir.

2011).

Steinmetz argues that he did not voluntarily consent to the search of his

residence because his consent was the product of coercive police authority. We

consider the "totality of all the circumstances" to evaluate whether consent was

"voluntary or was the product of duress or coercion, express or implied." United

States v. Mendenhall, 446 U.S. 544, 557 (1980).

On careful review of the record, we conclude that the district court did not

clearly err in finding that Steinmetz voluntarily consented to the search. The

district court found with adequate support that Steinmetz "appeared to be an

articulate, intelligent, man in his early sixties," that he "appeared to be relatively at

ease" throughout his interview with officers, and that "with one or two brief

exceptions, neither Steinmetz nor any of the officers raised their voices." Before the

interview, Detective House advised Steinmetz of his rights under Miranda v.

Arizona, 384 U.S. 436 (1966), and Steinmetz signed a waiver form, acknowledging

that he understood his rights and was willing to answer questions.

Page 5

The district court found, without clear error, that after about seventy-five

minutes, Steinmetz said it would be "okay" for Detective House to look at his

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computer, hard drives, and thumb drives to verify that he did not have naked

pictures of E.S. Steinmetz also agreed that it would be "okay" for the detective to

send his computer, computer media, and cameras to a "forensic group" for

examination. Shortly thereafter, Steinmetz signed a "Consent to Search" form that

authorized police to search his house. The form plainly notified him of "the right to

refuse to consent to the search described above and to refuse to sign this form."

Steinmetz argues nonetheless that the interview environment rendered his

consent involuntary. He emphasizes that he was unexpectedly confronted by

multiple armed officers at his place of work, and questioned for hours in a small,

locked, windowless room. The district court found, however, that the officers made

"no show of force" when they approached Steinmetz at his workplace. At the police

station, Detective House and her supervisor, Sergeant Richard White, questioned

Steinmetz individually; the interview room—which measured ten feet by seven

feet—was never crowded. The record supports the district court's finding that

Steinmetz appeared "relatively at ease and calm" for the duration of the interview.

Even assuming that Steinmetz was not free to leave, he gave consent after receiving

Miranda warnings, and custodial status does not preclude voluntary consent.

United States v. Beasley, 688 F.3d 523, 531 (8th Cir. 2012).

Steinmetz objects that the detectives interviewed him for approximately six

hours, but the district court made no error in finding that the length of the

interrogation did not render Steinmetz's consent involuntary. Steinmetz orally

consented to the search and signed a "Consent to Search" form within the first

E

ninety minutes of the interview. That the meeting carried on for several more hours

is irrelevant to whether Steinmetz's earlier expression of consent was voluntary.

Page 6

Steinmetz next contends that his consent was involuntary because the officers

misled him about the purpose and execution of the search. He complains that the

consent forms were not specific as to the items that the officers intended to search.

The detective, however, already had obtained oral consent to search computers and

other media, and a reasonable person would have understood that consent to search

the house encompassed those items.

Steinmetz also objects that Sergeant White gave assurances that he would

supervise the search himself, but then ended up remaining at the police station.

The record does not show whether White intentionally misrepresented his plan or

whether changed circumstances led him to forego traveling to the scene of the

search, but the identity of the supervising officer was not so material that

misinformation on that point requires a finding of involuntariness under the

totality of the circumstances. The district court found, without clear error, that

Detective House informed Steinmetz that the purpose of the search was to look for

nude pictures of E.S., and that the search would extend to Steinmetz's computers,

hard drives, thumb drives, cameras, and computer media. Sergeant White did not

promise to limit the scope of the search, and a reasonable person would have

understood that investigators could search the same areas and objects regardless of

the supervisor's identity.

F

Under the totality of the circumstances, the district court did not clearly err in

finding that Steinmetz voluntarily consented to a search.

B.

Alternatively, Steinmetz contends that investigators exceeded the scope of his

consent. Steinmetz asks us to conclude that his consent was predicated on his

presence during the search, and that the officers therefore exceeded the scope of his

consent when they searched his residence while he was at the police station.

Page 7

"A suspect may of course delimit as he chooses the scope of the search to which

he consents." Florida v. Jimeno, 500 U.S. 248, 252 (1991). The scope of a suspect's

consent depends on what "the typical reasonable person" would have understood by

the exchange between the officer and the suspect. Id. at 251. "Where a suspect

provides general consent to search, only an act clearly inconsistent with the search,

an unambiguous statement, or a combination of both will limit the consent." United

States v. Beckmann, 786 F.3d 672, 679 (8th Cir. 2015).

The district court found that Steinmetz "gave a general consent (both verbally

and in writing) to a search of his residence and specifically consented to a search of

his computers, external hard drives and other storage media." The court also

determined that while Steinmetz stated that he would "prefer" to be present during

the search, he did not "condition" his consent on his presence. These findings are

not clearly erroneous. Although Steinmetz stated that he would "rather be there if

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he could," a "typical reasonable person" would not have understood that Steinmetz

was limiting his consent by merely expressing a preference.

After Steinmetz expressed his desire to be present for the search, Sergeant

White explained that the search was going to take place while Steinmetz remained

at the station. The district court found that "[d]uring that discussion, it was clear

that Steinmetz understood that officers were going to remove computers and related

items from his home," and that "Steinmetz was not going to be allowed to

accompany police to his house or to be present during the search." The

videorecording substantiates this finding. Despite knowing the scope of the plan,

Steinmetz did not insist on accompanying the officers, withdraw his consent, or

otherwise make clear that his consent was conditioned on his presence during the

search. To the contrary, even after learning that he would not be present for the

search, Steinmetz told Detective House which key she could use to open the

residence. Steinmetz's words and actions consistently communicated general

consent to a search of his residence.

Page 8

We thus conclude that the officers did not exceed the scope of Steinmetz's consent.

The district court properly denied Steinmetz's motion to suppress.

III.

Steinmetz also appeals several of the district court's rulings at trial on the

ground that certain evidence was irrelevant or unfairly prejudicial. We review the

H

rulings for abuse of discretion. United States v. Emmert, 825 F.3d 906, 909 (8th Cir.

2016).

The district court admitted evidence that Steinmetz had sexually abused and

molested the victim. Steinmetz objected under Federal Rule of Evidence 403 on the

ground that the danger of unfair prejudice substantially outweighed the probative

value of the evidence. He also objected that the evidence was improper character

evidence under Rule 404. The court ruled, however, that the evidence was

"inextricably intertwined" with the charged offense of producing child pornography,

because the molestation of E.S. was part and parcel of the "grooming process" that

led to the offense. The court acknowledged that the evidence was prejudicial, but

concluded that the evidence was sufficiently probative to be admitted under Rule

403. Over the same objections, the court also admitted pornographic anime that was

discovered at Steinmetz's home as "inextricably intertwined" with the charged

offense.

We agree with the district court that the evidence of molestation and the

pornographic anime are relevant to the charged offense, because they show the

context in which Steinmetz took nude photographs of E.S. When Steinmetz first

molested E.S., he showed her the pornographic anime at issue. He began to take

nude photographs of the victim in the midst of ongoing sexual abuse. The

challenged evidence thus showed the grooming process that enabled Steinmetz to

photograph the victim. The evidence was relevant to showing how Steinmetz came

to produce child

I

Page 9

pornography, and the district court did not abuse its discretion by concluding that

any unfair prejudice did not substantially outweigh the probative value.

Steinmetz also contends that the district court erred in admitting

"miscellaneous" child pornography that investigators discovered in his possession,

because these images did not involve E.S. But we agree with the district court that

this evidence was admissible under Rule 414: "In a criminal case in which a

defendant is accused of child molestation, the court may admit evidence that the

defendant committed any other child molestation." Fed. R. Evid. 414(a). "Child

molestation" includes acts relating to child pornography. Id. 414(d)(2)(B); see also

Emmert, 825 F.3d at 909.

The miscellaneous child pornography depicted nude female children, and was

therefore similar in kind to the pornographic images of E.S. that Steinmetz was

charged with producing. The evidence tended to show that Steinmetz had an

interest in lascivious photographs involving minor females. Rule 414(a) permits

evidence that shows the defendant's character or propensity to commit certain acts

in a child molestation case, so prejudice to Steinmetz from this evidence was not

"unfair" within the meaning of Rule 403. United States v. Gabe, 237 F.3d 954, 960

(8th Cir. 2001). The district court did not abuse its discretion on this point.

Steinmetz next urges that the district court erred under Rule 403 by admitting

a pornographic image depicting his ex-wife in a bondage outfit. The challenged

image showed the ex-wife wearing a harness that was identical to one that E.S. was

J

wearing in another photograph. Both photographs were found in the Steinmetz

residence and appeared to be taken in the same location. The similarities of the

photographs, along with the relationship of the parties involved, tended to prove

that Steinmetz produced both images, so the evidence was relevant to whether

Steinmetz produced child pornography depicting E.S. It was not an abuse of

discretion to conclude that the balancing test under Rule 403 allowed admission of

the photograph.

Page 10

IV.

In his last argument, Steinmetz contends that the district court violated his

right under the Sixth Amendment to confront his accuser by limiting his ability to

cross examine E.S. about her depression and counseling. The district court retains

wide latitude to impose reasonable limits on cross-examination, Delaware v. Van

Arsdall, 475 U.S. 673, 678-79 (1986), and whether mental health evidence is

sufficiently probative to warrant examination is a fact-intensive determination. See

United States v. Love, 329 F.3d 981, 984 (8th Cir. 2003); United States v. Jimenez,

256 F.3d 330, 343-44 (5th Cir. 2001). In this case, Steinmetz made no offer of proof

to show how the proposed cross-examination might have been relevant to E.S.'s

credibility or bias. Without such an offer, we cannot ascertain what evidence was

excluded or whether any excluded evidence would have significantly affected the

jury's impression of E.S.'s credibility. Steinmetz therefore has failed to establish an

K

error in limiting cross-examination. United States v. Leisure, 844 F.2d 1347, 1360

(8th Cir. 1988); United States v. Lavallie, 666 F.2d 1217, 1220 (8th Cir. 1981).

***

The judgment of the district court is affirmed.

-------Footnotes:

1. The Honorable Rodney W. Sippel, Chief Judge, United States District Court

for the Eastern District of Missouri, adopting the report and recommendation of the

Honorable Shirley Padmore Mensah, United States Magistrate Judge for the

Eastern District of Missouri.

2. A witness testified that the victim was "transitioning to the male gender"

when she made her complaint to the police, and the victim later adopted the initials

"F.M." Like the district court, we use the victim's initials at the time of the offense

conduct.

--------

L

CERTIFICATE OF COMPLIANCE

I, the undersigned, hereby certify that this “Petition for a Writ of Certiorari”

complies with the all requirements set forth in the United States Supreme Court

Rules. Specifically, this “Petition for a Writ of Certiorari” complies with the word

limitations required under United States Supreme Court Rule 33(h) as it contains

7,249 words.

Respectfully Submitted,

/s/ Philip G. Scanlon

Philip G. Scanlon

Counsel for Petitioner

Taaffe & Associates, LLC

1015 Locust St., Ste. 725

St. Louis, Missouri 63101

(314) 241-3700 (office phone)

(314) 241-3710 (office fax)

phil@taaffeandassociates.com

CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that on the 13th day of November, 2018,

1.

Forty (40) physical copies of the foregoing “Petition for a Writ of

Certiorari”, booklet-format, and one (1), unbound copy on 8.5 x 11 inch paper were

sent to the Clerk of the United States Supreme Court through express mail;

2.

Three (3) physical copies of the foregoing “Petition for a Writ of

Certiorari”, booklet-format, were sent through express mail to Respondent, the

United States;

3.

One (1) copy of the appropriate documents composing my “Application

for Admission to the Bar of the United States Supreme Court” was sent by way of

express mail at the above-cited, requisite addresses to both the Clerk of the United

States Supreme Court and Respondent, the United States; and,

I, the undersigned, hereby certify that on the 12th day of December, 2018, after

technical issues with my Application for Admission were corrected, was allowed to

electronically file the foregoing “Petition for a Writ of Certiorari” and electronically

filed the same.

Respectfully Submitted,

/s/ Philip G. Scanlon

Philip G. Scanlon

Counsel for Petitioner

Taaffe & Associates, LLC

1015 Locust St., Ste. 725

St. Louis, Missouri 63101

(314) 241-3700 (office phone)

(314) 241-3710 (office fax)

phil@taaffeandassociates.com