Petition for Writ of Certiorari — Christopher Fitzgerald, Petitioner v. United States

Supreme Court briefJan 30, 2019

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No.

In the

Supreme Court of the United States

_________________________

CHRISTOPHER FITZGERALD

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

__________________________

PETITION FOR A WRIT OF CERTIORARI

__________________________

STEPHEN C. NEWMAN

Federal Public Defender,

Northern District of Ohio

VANESSA F. MALONE, ESQ.

Counsel of Record

Office of the Federal Public

Defender, N. Dist. Ohio (Akron)

50 South Main St., Suite 700

Akron, Ohio 44308

(330)375-5739

vanessa_malone@fd.org

January 30, 2019

QUESTION PRESENTED

Does the “good faith” exception to the exclusionary rule apply to uphold a search

of a residence, where there is no nexus between the residence and any alleged drug

trafficking, but the affidavit contains evidence that the targeted individuals are

involved in trafficking, thus negating the third Leon factor which supports exclusion

of evidence obtained in a search where an officer drafts an affidavit “so lacking in

indicia of probable cause as to render official belief in its existence entirely

unreasonable?” United States v. Leon, 468 U.S. 897, 923 (1984).

TABLE OF CONTENTS

Page

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

PETITION FOR WRIT OF CERTIORARI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

OPINION BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

CONSTITUTIONAL PROVISION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Factual History of Suppression Issue Regarding Fitzgerald . . . . . . . . 6

The Decision Below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

REASONS FOR GRANTING THE WRIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

The Question Presented and its Affect has Eliminated the Need

For Probable Cause in a Warrant or Affidavit based upon

Application of Good Faith Exception . . . . . . . . . . . . . . . . . . . . . . . . . 15

The Exception Swallows the Rule: Good Faith trumps

Exclusionary Rule even when No Probable Cause

Exists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Several Circuits have Similarly Eroded the

Exclusionary rule using the Good Faith Exception . . . . . . . . . 19

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

PETITION APPENDIX TABLE OF CONTENTS

............................

United States Court of Appeals

for the Sixth Circuit

Opinion (November 1, 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a-13a

TABLE OF AUTHORITIES

CASES

Illinois v. Gates,

462 U.S. 213 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Illinois v. Krull,

480 U.S. 340 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Massachusetts v. Sheppard,

468 U.S. 981 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

United States v. Leon,

468 U.S. 438 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Zurcher v. Stanford Daily,

436 U.S. 547 (1978)

......................................

United States v. Berry,

565 F.,3d 332 (6th Cir.2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

United States v. Carpenter,

360 F.3d 591 (6th Cir.2004)

United States v. Corral-Corral,

899 F.3d 927 (10th Cir.1990)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

United States v. Fitzgerald et al.,

__ Fed Appx. __, 2018 WL 5734697 (6th Cir.2018)(App 1a-13a) . . . . . passim

United States v. Frazier,

423 F.3d 526 (6th Cir.2005)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

United States v. Jones,

159 F.,3d 969 (6th Cir.1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

United States v. Laughton,

409 F.,3d 744 (6th Cir.2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

United States v. Williams,

548 F.3d 311 (4thCir.2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19

United States v. Robinson

336 F.3d 1293 (11th Cir.2003)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

United States v. Weaver,

99F.3d 1372 (6th Cir.1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

UNITED STATES CONSTITUTION

Fourth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

STATUTORY PROVISIONS

28 U.S.C. §1254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

PETITION FOR WRIT OF CERTIORARI

__________________

Petitioner Christopher Fitzgerald respectfully prays that a writ of certiorari

issue to review the judgment and opinion of the United States Court of Appeals for the

Sixth Circuit in this case. This case represents another instance where an individual’s

alleged status as a “drug trafficker” is used as the sole basis to seek a warrant to

search that individual’s residence. This widespread belief that drug dealers will

conceal, harbor, store or maintain a residence which contains evidence of drug

distribution is used to support warrants to conduct blanket, sweeping searches of

residences which have no connection to any alleged trafficking or other wrongdoing.

Without this court’s intervention, the courts of appeals will continue to erode the

meaning and efficacy of United States v. Leon, 468 U.S. 897 (1984), and the necessity

for probable cause to search a dwelling where there is no evidence that the dwelling

itself played any role in ther allged wrongdoing of its occupants. This case squarely

presents these important and recurring questions and is an ideal vehicle for resolving

the issue. For these reasons, the petition should be granted.

OPINION BELOW

The opinion of the Sixth Circuit Court of Appeals, Appendix, 1a- 13a, was

unpublished and issued November 1, 2018, and is attached hereto.

JURISDICTION

The judgment of the court of appeals was entered on November 1, 2018. The

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

CONSTITUTIONAL PROVISION INVOLVED

The Questions Presented implicates the Fourth Amendment to the United

States Constitution:

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

Factual History of Suppression Issue Regarding Fitzgerald

The facts involved in the search warrant affidavit and warrant are not in

dispute.

Christopher Fitzgerald, along with his half-sister Chiquita Anderson and his

co-worker Rashard Smith, were all found guilty of violating federal drug laws based

upon the testimony of Walter Walker III who was the alleged ringleader and seasoned

narcotics trafficker. Fitzgerald and Walker had been friends in their youth, having

re-connected as adults after Walker had served numerous prison terms for drug

offenses in state and federal prisons. Fitzgerald and Smith were both employed with

Federal Express, “FedEx,” as route drivers who delivered packages on regular routes

in the Northeast Ohio area. Christopher Fitzgerald had no criminal record.

Walker initially attracted the Ohio Gaming Commission's attention as Walker

and an associate were spending and gambling large amounts of cash at the Jack Casino

in Cleveland, Ohio. The pair would trade smaller monetary denominations into larger

denominations at the casino.

Soon after the Gaming Commission notified Cleveland Police detectives and the

Northern Ohio Law Enforcement Task Force, which specialized in narcotics-related

investigations, an investigation was begun on Walker. Shortly thereafter, the

detectives received information that an individual in Aurora, Ohio, a southeastern

suburb in Portage County, Ohio, had attempted suicide, and the responding officers

had discovered evidence of drug trafficking in the apartment where the attempt was

made. The information also included the names Walter Walker and Christopher

Fitzgerald, as persons involved in the Aurora incident, as the apartment had been

rented by Fitzgerald, but was subleased to Walker. The investigation revealed that the

individual who attempted suicide blamed Walter Walker for his desperation, as he was

a driver who would make kilogram heroin runs to Chicago for Walker, but Walker had

lost the last shipment and could not pay for the drugs. The Chicago supplier was

blaming the driver for the missing drugs.

Almost one year later, the task force detectives were stil investigating the case,

having received information from a source that Fitzgerald and his half-sister,

Anderson, would assist Walker in receiving cocaine shipments from California to

Northeast Ohio, using shipments sent via Federal Express. By January of 2015, a

Title III wiretap was used on the cellular telephone of Walker: a month later, a wirtap

authorization was obtained for Fitzgerald’s cell phone. The fruits of the wiretaps

revealed coded conversations, and a specific conversation between Fitzgerald and

Walker concerning a particular drop off of a package on Fitzgerald’s delivery route.

By the time the detectives sought search warrants, the officers understood the

general method of the drug distribution as including shipments via FedEx, which were

delivered to businesses on the delivery routes of Fitzgerald and Rashard Smith, who

also was a FedEx driver. Once at the location, Walker would take the delivery instead

of delivering the package to the business to which the delivery was addressed.

The Affidavit recited pages of transcribed conversations captured via the Title

III wiretaps on Walker’s cell phone and the cell phone of Fitzgerald. None of the

conversations involved any information which would lead the officers listening to

believe that Fitzgerald was a drug dealer who was in the habit of stashing drugs at his

residence. The officers may have been able to infer from the wiretap information and

from the informant that Fitzgerald was assisting Walker through his position at FedEx

as part of the delivery chain.

There was no indication that Fitzgerald was supplying dealers or users of drugs,

or that Fitzgerald had drug source connections in California. Fitzgerald was not a

supplier or a street dealer of narcotics, and none of the inferences gained from the

wiretaps or the informants provided any support for such a finding. There was no

witness testimony that Fitzgerald ever sold any narcotics, and there was no connection

to his residence. Fitzgerald never lived at the Aurora apartment where the attempted

suicide took place: the apartment was rented for Walker. Contrary to the district

court’s findings that Detective Guzik’s experience as recited in the boilerplate language

provided a sufficient nexus to Appellant’s residence, there was no reasonable inference

of drug activity sufficient to justify the issuance of the warrant to search the

Beachwood, Ohio home.

A summary of the 62-page Affidavit revealed that a scant six paragraphs were

even remotely related to Fitzgerald’s residence in Beachwood, Ohio: none provided an

evidentiary nexus to his residence. Specifically, during the Affiant's recitation of his

experience and training, Affiant summarizes his experience with drug traffickers.

(Affidavit, at ¶¶2-6). Affiant stated that he had 15 years of experience investigating

drug cases. (Affidavit, at ¶2). Based on this experience, Affiant asserted that he is

familiar with the modus operandi of persons involved in the illegal distribution of

drugs. (Affidavit, at ¶4). Accordingly, the Affiant stated that he was aware that

"persons involved in the illegal distribution of controlled substances nearly always

attempt to conceal their identities, the location at which drug transactions take place,

and the flow of proceeds derived from their illicit drug transactions into ‘clean'

currency." (Affidavit, at ¶4). Affiant also stated that based on his training and 15 years

of experience, he was aware of where drug traffickers often keep the evidence of their

crimes. More specifically, Affiant stated that "traffickers must maintain on hand large

amounts of U.S. Currency in order to finance their on-going narcotic business and often

keep this currency in their possession" (Affidavit, at ¶6(a)); that "drug traffickers

maintain books, records, receipts, notes, ledgers, and similar items of their drug

trafficking activity where the drug traffickers have ready access to them" (Affidavit,

at ¶6(b)); that "persons involved in drug trafficking conceal in their residences (‘stash

houses'), large amounts of currency, financial instruments, precious metals and gems,

jewelry, and other items of value and/or proceeds of drug transactions; and evidence

of financial transactions relating to obtaining, transferring, secreting, or spending of

large sums of money derived from engaging in narcotics trafficking activities"

(Affidavit, at ¶6(e)); and that "when drug traffickers amass large amounts of proceeds

from the sale of drugs, they attempt to legitimize these profits through

money-laundering activities and that they often keep records of such activity (e.g. bank

records, ledgers, business records, withdrawal and deposit slips, etc.) at their

residences" (Affidavit, at ¶6(f)). None of these statements created a “fair probability

that evidence would be located on the premises of the proposed search.” Zurcher v.

Stanford Daily, 436 U.S. 547, 556 (1978).

The district court did not hold a hearing on the motion to suppress, which

alleged that the informant had not been identified or proven reliable, and that there

was no nexus between the residence of Fitzgerald and any alleged drug distribution.

Citing the government’s response in opposition, the district court determined that

“drug dealers store drugs and proceeds where they live,” and found that oft-used

justification and the affiant’s experience, as sufficient nexus to uphold the warrant’s

probable cause finding.

The Decision Below

The Sixth Circuit Court of appeals affirmed the denial of the motion to suppress,

the conviction, and the sentence imposed of 188 months for Fitzgerald. The Court of

Appeals determined that the district court’s finding of probable cause for the issuance

of the warrant was not supported by the Affidavit, stating that “our precedent does not

support the district court’s conclusion that the affiant’s ‘experience that evidence of

drug activity can often be found at the drug dealer’s residence alone, is sufficient to

establish a nexus to search the residence.’ ” Pet. App. 6a. The Court of Appeals found

that the district ocurt relied upon cases which did not stand for the blanket assertion

that evidence of drug dealing will be found where drug dealers live, stating that those

cases referenced by the district court all had more evidence of a connection between the

place to be searched and the illegality. Id.

After holding that “the nexus requirement was not satisfied, and probable cause

did not exist to issue the search warrant for Fitzgerald’s residence,” the Court of

papeals determined that the evidence seized would not be excluded, under the Good

Faith Exception to t the exclusionary rule, as announced in United States v. Leon, 468

U.S. 897 (1984). The Sixth Circuit panel recited the standards for finding that the

officers acted in good faith as follows:

The Leon good faith exception specifies that the affidavit must contain

only a “minimally sufficient nexus between the illegal activity and the

place to be searched....” That is a “less demanding showing than the

‘substantial basis’ threshold required to prove the existence of probable

cause.” [United States v.] Frazier, 423 F.3d 526, 536 (citing [United

States v.] Carpenter, 360 F.3d 591, 595). An officer relying on a search

warrant does not act in objectively reasonable good faith when: (1) the

magistrate was misled by information in the affidavit that the affiant

either knew was false or was reckless as to its falsity; (2) the magistrate

wholly abandoned her judicial role; (3) the warrant was so lacking in

indicia of probable cause that official belief in its existence is

unreasonable; or (4) the officer’s reliance on the warrant was otherwise

not in good faith or objectively unreasonable, such as where the warrant

is facially deficient. United States v. Laughton, 409 F.3d 744, 748 (6th

Cir. 2005) (citing Leon, 468 U.S. at 914–23, 104 S.Ct. 3405). The affidavit

cannot be “bare bones” and merely “state[ ] suspicions, beliefs, or

conclusions, without providing some underlying factual circumstances

regarding veracity, reliability, and basis of knowledge.” United States v.

McPhearson, 469 F.3d 518, 526 (citing United States v. Weaver, 99 F.3d

1372, 1378 (6th Cir. 1996) ). “The relevant question is whether a

reasonably well trained officer would have known that the search was

illegal despite the magistrate’s authorization.” United States v.

McCraven, 401 F.3d 693, 698 (6th Cir. 2005) (citation and internal

quotation marks omitted). Lack of good faith reliance on the affidavit may

also exist “when evidence in the affidavit connecting the crime to the

residence is ‘so vague as to be conclusory or meaningless.’ ” Frazier, 423

F.3d at 536 (quoting Carpenter, 360 F.3d at 596). The standard of

reasonableness is an objective one and “does not turn on the subjective

good faith of individual officers.” Illinois v. Krull, 480 U.S. 340, 355, 107

S.Ct. 1160 (1987) (citing Leon, 468 U.S. at 919 n.20, 104 S.Ct. 3405).

Pet.App.7a.

In its decision, the Sixth Circuit court established a new precedent in finding

that the officers acted in good faith reliance on the warrant: the appeals court was

impressed by the affidavit’s 62 pages and its descriptions of the wiretaps and what it

saw as a year-long investigation in to a “wide-ranging” drug conspiracy. Contrary to

the appeals court’s description of the contents of the affidavit, the alleged drug

conspiracy as it related to Fitzgerald’s residence was non-existent: the appeals court

cited the activitiy viewed between Walker and Anderson at her residence, but provided

no information about any activity at Fitzgerald’s residence, other than Fitzgerald’s

leaving for work, and returning at the end of the day. That the appeals court strained

to justify finding the search warrant was saved by good faith, the court’s determination

that

[T]he 62-page affidavit contains evidence of Fitzgerald’s involvement in

ongoing drug activity based on confidential informant reports and a year

of wiretapped conversations and other surveillance of suspected

co-conspirators. For example, the confidential informant claimed to speak

regularly with Fitzgerald’s half-sister, co-defendant Anderson, about the

conspiracy and specifically described Fitzgerald’s role as the FedEx

deliverer. Magistrate judges authorized wiretaps on Fitzgerald’s and

Walker’s cell phones and a tracker on Walker’s vehicle. Experienced

officers interpreted the suspects’ cryptic phone and text conversations to

refer to drug deliveries and payments. On days tapped phone calls led

officers to believe Fitzgerald and Walker planned to meet, surveillance of

Anderson’s residence showed Walker arriving with Pelican cases.

Pet.App.7a.

Contrary to the above quotation, the 62-page affidavit contained no reference,

informant testimony, surveillance, or any information regarding the “place to be

searched,” Fitzgerald’s Beachwood, Ohio residence.

Indeed, the appeals court

contradicts itself by stating that on the one occasion after Walker and Fitzgerald’s

meeting while Fitzgerald was driving for FedEx on his delivery route, the officers

surveillance captured Walker arriving at Anderson’s home, not Fitzgerald’s.

The court of appeals asserted that there was no evidence in the record to

contradict its holding that the officers relied on the warrant in good faith of its

veracity. Indeed, such proof of good faith belief will likely not be developed in the

record without a hearing on the motion to suppress, which would give a defendant an

opportunity to challenge the officer’s basis and breadth of knowledge concerning the

affidavit and its contents. Here, the district court found no need to hold a hearing,

finding that there was probable cause in the affidavit and no need to resort to good

faith to resuscitate a warrant issued without probable cause.

REASONS FOR GRANTING THE WRIT

The Sixth Circuit’s unpublished decision in United States v. Fitzgerald, reflects

a clear break with established Supreme Court precedent. This case squarely presents

the important and recurring question of whether a finding that an officer acted in good

faith reliance on a signed warrant is supported where there is no connection in the

affidavit or warrant regarding the place to be searched and its connection to the alleged

illegality. This case is an ideal vehicle for which this Court may answer this question,

as the Court of Appeals clearly found no probable cause and no connection to the

private residence, and nonetheless determined that the officer acted in good faith belief

of the warrant’s validity, thus negating Leon’s third exception to the good faith

analysis. In addition, lower courts are faced with this issue repeatedly, and as the

opinions in those courts reflect, the analysis announced in Leon has has not been

followed, and the exceptions to a good faith finding and the analysis therein have been

reduced to meaningless exercises, in violation of defendants’ Fourth Amendment

rights.

The Question Presented and its Effect has Eliminated the Need for

Probable Cause in a Warrant or Affidavit based upon Application of

Good Faith Exception

Petitioner states that in the years since Leon, law enforcement has learned that

it is not necessary to include evidence which will provide the reviewing magistrate with

a basis for finding probable cause for two reasons: first, most jurisdictions in the

United States have some magistrates who will sign a warrant affidavit without holding

the presenting officer to any meaningful evidentiary standard, and officers seeking

warrants with questionable facts know how to forum shop a weak affidavit. Secondly,

even in situations where the officer is not forum shopping, affidavits lacking in

probable cause have routinely stood up to challenge based upon the officer’s good faith

in exercising a warrant signed by a neutral magistrate.

The devolution of the exclusionary rule on the back of Leon’s good faith

exception has reduced the exclusionary rule to being a “non-starter.” In Petitioner’s

case, and in myriad other cases, law enforcement “experience” and “knowledge” has

replaced facts, and evidence gained through meaningful investigation in affidavits,

leading to warrants signed which lean on history and experience rather than

particularity and evidence.

Petitioner states that this Court should take the

opportunity to review its decision in Leon, based upon the 35 years of case law since

its inception, to determine whether the law enforcement officer’s good-faith exception

has supplanted the Fourth Amendment’s probable cause requirement as the necessary

evidentiary basis for search warrants. It is Petitioner’s belief that the Sixth Circuit’s

opinion has signaled that there indeed is no longer a probable cause “requirement.”

The Exception Swallows the Rule: Good Faith

trumps Exclusionary Rule even where No Probable

Cause Exists

Justice Blackmun, in his concurrence in Leon stated the following:

What must be stressed, however, is that any empirical judgment about

the effect of the exclusionary rule in a particular class of cases necessarily

is a provisional one. By their very nature, the assumptions on which we

proceed today cannot be cast in stone. To the contrary, they now will be

tested in the real world of state and federal law enforcement, and this

Court will attend to the results. If it should emerge from experience that,

contrary to our expectations, the good-faith exception to the exclusionary

rule results in a material change in police compliance with the Fourth

Amendment, we shall have to reconsider what we have undertaken here.

The logic of a decision that rests on untested predictions about police

conduct demands no less.

United States v. Leon, 468 U.S. at 928 (J. Blackmun, concurring). Thirty-five years

after the decision in Leon and its companion case Massachusetts v. Sheppard, 468

U.S. 981 (1984), petitioner submits that the time for reconsideration of the affect that

the good faith exception has had on the drafting of affidavits and the issuance of

warrants is at hand.

The widespread practice of using “good faith” as a cure for a facially defective

affidavit and warrant as evidenced in this case, reflects the use of law enforcement

assumptions elevated to evidentiary status.

For example, in the Sixth Circuit,

decisions from the circuit reflect regular use of the adage that drug dealers will harbor

evidence of their drug trafficking in their homes, as a substitute for actual evidence of

the use of a residence in a drug trafficking scheme.

We have acknowledged that “[i]n the case of drug dealers, evidence is

likely to be found where the dealers live.” United States v. Jones, 159

F.3d 969, 975 (6th Cir. 1998) (citing United States v. Lamon, 930 F.2d

1183, 1188 (7th Cir. 1991)). However, we also maintain that “a

defendant’s status as a drug dealer, standing alone, does not give rise to

a fair probability that drugs will be found in defendant’s home.” United

States v. Berry, 565 F.3d 332, 339 (6th Cir. 2009) (citing Frazier, 423 F.3d

at 533).

Pet.App.5a.

Even within the Sixth Circuit, the panel opinions are inconsistent and provide

no guidance as to what particular evidence, other than law enforcement speculation

as to the habits of “drug dealers,” is necessary to satisfy the Fourth Amendment’s

particularity requirement. In Petitioner’s case, the district court relied upon the drug

dealer’s residence assumption to validate a warrant that was devoid of proof of

probable cause that the residence would contain evidence of illegality. While corrected

by the Sixth Circuit, the crux of the problem identified in the Question Presented

became apparent in its holding that good faith saved the evidence from exclusion,

finding a sufficient nexus under a good faith analysis which was absent under the

analysis required under the Fourth Amendment and the exclusionary rule.

In Leon, Justice White stated the following:

We conclude that the marginal or nonexistent benefits produced by

suppressing evidence obtained in objectively reasonable reliance on a

subsequently invalidated search warrant cannot justify the substantial

costs of exclusion. We do not suggest, however, that exclusion is always

inappropriate in cases where an officer has obtained a warrant and

abided by its terms. “[S] earches pursuant to a warrant will rarely require

any deep inquiry into reasonableness,” Illinois v. Gates, 462 U.S., at 267,

103 S.Ct., at 2347 (WHITE, J., concurring in judgment), for “a warrant

issued by a magistrate normally suffices to establish” that a law

enforcement officer has “acted in good faith in conducting the search.”

United States v. Ross, 456 U.S. 798, 823, n. 32, 102 S.Ct. 2157, 2172, n.

32, 72 L.Ed.2d 572 (1982). Nevertheless, the officer’s reliance on the

magistrate’s probable-cause determination and on the technical

sufficiency of the warrant he issues must be objectively reasonable, cf.

Harlow v. Fitzgerald, 457 U.S. 800, 815–819, 102 S.Ct. 2727, 2737–2739,

73 L.Ed.2d 396 (1982),23 and it is clear that in some circumstances the

officer will have no reasonable grounds for believing that the warrant was

properly issued.

Leon, 468 U.S. at 492-493. Petitioner submits that this Court should determine

whether there are any meaningful exceptions to an officer’s good faith belief in the

validity of a warrant, or whether there are no circumstances in which an officer will

present an affidavit which is susceptible to a Fouth Amendment challenge. This is so

in light of the fact that a magistrate’s signature on a warrant predicts the outcome, as

it did in this case: even a warrant which provides no probable cause that evidence of

drug trafficking will be located at a person’s residence will contain “sufficient nexus”

for find that an officer acted in good faith.

Several Circuit Courts Have Similarly Eroded the Exclusionary

Rule using the Good Faith Exception

The uncertainty as to the vitality of the exclusionary rule as it pertains to

warrants and affidavits which fail to contain suficient cause to search a particular

place is not isolated in the Sixth Circuit: each circuit examined displayed the continued

erosion of the exclusionary rule under the good faith warrant-saving rubric. Thus in

United States v. Williams, 548 F.3d 311 (4th Cir.2008), the panel reversed the district

court’s suppression of evidence obtained from a residence identified as one where

alleged “drug traffickers” lived. In reversing the suppression decision, the Fourth

Circuit, citing Leon, stated the following:

Simply put, the district court's view is directly at odds with our

precedent. We have consistently determined that there was probable

cause to support search warrants—and not merely sufficient indicia of

probable cause to justify application of the Leon good faith exception—in

similar circumstances. That is, we have upheld warrants to search

suspects’ residences and even temporary abodes on the basis of (1)

evidence of the suspects’ involvement in drug trafficking combined with

(2) the reasonable suspicion (whether explicitly articulated by the

applying officer or implicitly arrived at by the magistrate judge) that drug

traffickers store drug-related evidence in their homes. See United States

v. Grossman, 400 F.3d 212, 217–18 (4th Cir.2005); United States v.

Servance, 394 F.3d 222, 230 (4th Cir.), vacated on other grounds, 544 U.S.

1047, 125 S.Ct. 2308, 161 L.Ed.2d 1086 (2005); United States v. Williams,

974 F.2d 480, 481–82 (4th Cir.1992); United States v. Suarez, 906 F.2d

977, 984–85 (4th Cir.1990). . . .

As part of such a common sense determination, we observed in

Grossman, “it is reasonable to suspect that a drug dealer stores drugs in

a home to which he owns a key.” Id. at 218; see also Servance, 394 F.3d

at 230 (recognizing “that the nexus between the place to be searched and

the items to be seized may be established by the nature of the item and

the normal inferences of where one would likely keep such evidence”

(internal quotation marks omitted)).

Williams, 548 F.3d at 319.

In United States v. Corral-Corral, 899 F.3d 927 (10th Cir.1990), the circuit panel

held that an affidavit that failed to present any probable cause was able to be

preserved through application of the good faith rationale. In Corral-Corral, the court

determined that an ofifcer could rely on a magistrate’s decision to issue the warrant,

even in instances where the affidavit is facially insufficient: “we believe the state

judge’s probable cause finding is not only a relevant factor, but a significant one as

well, in the good-faith equation.” Id. at 938. See also, United States v. Robinson, 336

F.3d 1293 (11th Cir.2003)(Under good faith exception t exclusionary rule, suppression

only necessary where officers are dishonest or reckless and unable to seriously believe

in the existence of probable cause).

CONCLUSION

The Court should grant this petition for a writ of certiorari.

Respectfully submitted,

s/ Vanessa F. Malone

VANESSA F. MALONE, ESQ.

(Ohio 0066230)

Attorney at Law

Office of the Federal Public Defender

vanessa_malone@fd.org

Counsel for Petitioner

APPENDIX A

United States v. Christopher Fitzgerald et al.

Sixth Circuit Court of Appeals Case No.17-3699

Opinion filed November 1, 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.