Petition for Writ of Certiorari — Laquan L. Kellam, Petitioner v. United States

jr-

Rl INAL

■18-97

FILED

g^BSSg^l^f I

IN THE

SUPREME COURT OF THE UNITED STATES

LAQUAN L. KELLAM,

— PETITIONER

(Your Name)

vs.

UNITED STATES OF AMERICA RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

U.S. COURT OF APPEALS FOR-THE THIRD CIRCUIT

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

LAQUAN L. KELLAM

(Your Name)

F.C..I. FORT DIX, P.0. BOX 2000

(Address)

JOINT BASE MDL, N.j. 08640-5433 :

(City, State, Zip Code)

(609) 723-1100

(Phone Number)

i

LIST OF PARTIES

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

[ ] All parties do not appear in the caption of the case on the cover page. A list of

all parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

(

ii

QUESTION(S) PRESENTED

li DID THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ABUSE

ITS DISCRETIONARY, BROADLY-BASED AUTHORITY OF INTERPRETATION, THUS,

VIOLATING PETITIONER'S FOURTH, FIFTH., SIXTH, EIGHTHs AND FOURTEENTH

AMENDMENT RIGHT(S), BY INCORRECTLY MIS-INTERPRETING UNITED STATES V.

WATSON, 423 U.S. 411 (1976 - CONTRARY TO U.S. SUPREME COURT INTENTION?

2. DID THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF

PENNSYLVANIA ERR IN DENYING THE MOTION TO SDPRESS EVIDENCE WHERE THE

SHERIFF'S WARRANTLESS ARREST VIOLATED PETITIONER'S FOURTH AMENDMENT

right(s)?

3. DID THE UNITED STATES DISTRICT OOURT FOR THE MIDDLE DISTRICT OF

PENNSYLVANIA'S DENIAL OF SUPPRESSION OF THE SEARCH OF THE GREEN STREET

RESIDENCE IN ERROR BECAUSE NO VALID CONSENT WAS PROVIDED BY EITHER

PETITIONER, OR THE RESIDENT'S CWNER, NS. ASHLEY SMITH, THUS GROSSLY

VIOLATING PETITIONER'S FOURTH AMENDMENT RIGHT(S)?

4. DID THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF

. PENNSYLVANIA IMPERMISSIBLY ALLOW DETECTIVE DAVID LAU TO TESTIFY AS

BOTH A FACT WITNESS, AND EXPERT WITNESS, AND WITHOUT PROVIDING ANY

APPROPRIATE, CAUTIONARY INSTRUCTIONS TO THE JURY?

5. DID THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF

PENNSYLVANIA ERR IN INCORRECTLY APPLYING THE TWO (2) LEVEL OBSTRUCTION

ENHANCEMENT?'

)

iii

TABLE OF AUTHORITIES CITED

PAGE NUMBER

CASES

ALEXANDER V. UNITED STATES, 390 F.2d 101 (5th Cir., 1968)

9

BUMPER V. NORTH CAROLINA, 391 U.S. 543 (1968)

10

OMONWEALTH V. DOBBINS, 934 A.2d 1170 (PA., 2007)

8

COMMONWEALTH V. LEET, 641 A.2d 299 (PA., 1994)

8

DUNAWAY V. NEW YORK, 442 U.S. 200 (1979)

7

FLORIDA V. BOYER, 460 U.S. 491 (1983)

10

STATUTES AND RULES

14

5

12

12

8

U.S.S.Gw § 3C1.1

21 U.S.C. § 841(a)(1)

Fed R. Crim. P. 16(a)(1)(G)

Fed. R. Evid. 702

42 PA. C.S.A. § 2921

OTHER

tv

TABLE OF AUTHORITIES CITED

CASES

PAGE NUMBER

IN RE PAOLI R.R. YARD PCB LITIGATION,

35 F.3d 717 (3rd Cir,, 1994)

12

JOHNSON V. ZERBST, 304 U.S. 458 (1938)

10

JUDD V. UNITED STATES, 190 F.2d 649 (D.C. Cir. , 1951)

11

KATZ V. UNITED STATES 389 U.S. 347 (1967)

10

KOPKO V. MILLER, 892 A.2d 766 (PA., 2006)

8

MANWEL V. CITY OF JOLIET, 580 IJ.S.

(2017)

4

PAYTON V. NEW YORK, 445 U.S. 573 (1980)

10

REICHE V. HOWARD 566 U.S. 658 (2012)

6

SCHNEC.KL0TH V. BUSTAMONTE, 412 U.S, 218 (1973)

10

STRICKLAND V. WASHINGTON, 466 U.S. 668 (1984)

7

UNITED STATES V. AGOSTINO, 132 F.3d 1183 (7th Cir.: 1997)

15

UNITED STATES V. BEAUCHAMP, 659 F,3d 560 (6th Cir., 2011)

11

UNITED STATES V. BRENNAN ? 326 F.3d 176 (3rd Cir., 2003)

14

UNITED STATES V. CANOVA, 412 F.3d 331 (2nd Cir,, 2005)

15

2004)

12

UNITED STATES V. HALL, 565 F/.2d 917 (5th Cir., 1978)

10

UNITED STATES V. JENKINS, 275 F.3d 283 (3rd Cir., 2001)

14

UNITED STATES V, JONES, 159 F.3d 969 (6th Cir. s 1998)

15

UNITED STATES V. LOPEZ-MEDINA,. 161 F.3d 724 (6th Cir.., 2006)

13

UNITED STATES V. MCLAUGHLIN, 126 F.3d 130 (3rd Cir. , 1997)

15

UNITED STATES V. CRUZ, 363 F,3d 187 (2nd Cir.

UNITED STATES V. MITCHELL, 365 F-3d 215 (3rd Cir., 2004)

v

TABLE OF AUTHORITIES CITED

CASES

PAGE NUMBER

UNITED STATES V. MORALES-SANCHF.Z, 609 F.3d 637 (5th Cir., 2010)’

14

.UNITED STATES V. MYERS, 308 F.3d 251 (3rd Cir,, 2002)

8

UNITED STATES V, PRICE, 54.58 F.3d 270 (3rd Cir. ; 2009)

10

UNITED STATES V. SANDERS, 341 F.ed 809 (8th Cir, , 2003)

15

UNITED STATES V. SANTANA, 427 U.S. 38 (1976)

7

UNITED STATES V. SCOTT, 405 F.3d 615 (7th Cir. , 2005)

14

UNITED STATES V. SOTO-SOTO, 598 F,2d 545 (9th Cir., 1979)

9

UNITED STATES V. VASQUEZ-ALGAR.IN, 821 F-3d 467 (3rd Cir-, 2016) .

4, 5, 6, 7

UNITED STATES V. VIALE, 312 F.2d 595 (2nd Cir. ; 1963)

9

UNITED STATES V. WATSON, 423 U.S. 411 (1976)

7, 8, 9

UNITED STATES V- WATSON, 260 F.3d 301 (3rd Cir- , 2001)

13

UNITED STATES V. WHITING, 781 F. 2d 692 (9th Cir -, 1986)

9

UNTIED STATES V. WILSON, 484 F.3d 267 (4th Cir. , 2007)

12

UNITED STATES V. YRVEN BAIN, 155 F. Supp. 3rd 107 (3rd C.ir., 2015) 7

vi

TABLE OF CONTENTS

OPINIONS BELOW

1

JURISDICTION

2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

3

STATEMENT OF THE CASE

4

REASONS FOR GRANTING THE WRIT

16

CONCLUSION

17

PROOF OF SERVICE

18

INDEX TO APPENDICES

APPENDIX A

ASHLEY N. SMITH AFFIDAVIT

APPENDIX B

UNITED STATES COURT OF APPEALS OPINION

APPENDIX C

UNITED STATES COURT OF APPEALS DENIAL FOR RE-HEARING

APPENDIX D

APPENDIX E

APPENDIX F

vii

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

[ ] For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix

the petition and is

___to

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

is unpublished.

The opinion of the United States district court appears at Appendix _____ to

the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

I is unpublished.

[ ] For cases from state courts:

The opinion of the highest state court to review the merits appears at

Appendix__to the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

The opinion of the_

appears at Appendix

court

to the petition and is

[ ] reported at

J or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

1.

JURISDICTION

1x1 For cases from federal courts:

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

was SEPTEMBER 14. 2018

[ : No petition for rehearing was timely filed in my case.

[X] A timely petition for rehearing was^dmiied^by^the United States Court of

Appeals on the following date:

, and a copy of the

order denying rehearing appears at Appendix C

.

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including______

(date) on

(date)

in Application No. __ A

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

[ ] For cases from state courts:

The date on which the highest state court decided my case was

A copy of that decision appears at Appendix_______

[ ] A timely petition for rehearing was thereafter denied on the following date:

---------------------------------- , and a copy of the order denying rehearing

appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including____

(date) on

(date)in

Application No. _A

The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

2.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Petitioner rests on the Fotitfch, Sixth,, Eighth, and Fourteenth Amendment(s) in

the claims, and arguments, as are set forth, and offered, in APPEM)IX "B",

APPENDIX "C", as well as the provisions, treaties, treatises, . statutes,

ordinances, regulations * and citations, in the instant PETITION FOR A WRIT OF

CERTIORARI, violating Petitioner's right against illegal search, and seizure.

3.

STATEMENT OF THE CASE

NOW COMES, LAQUAN L. KELLAM, Petitioner, pro se8 arid respectfully moves this

AUGUST Court, in the instant PETITION FOP WRIT OF CERTIORARI, upon the judgment,

entered on June 12, 2017, by the United States District Court for the Middle.

District of Pennsylvania, Philadelphia Division, denying Petitioner RELIEF from

his conviction, and sentence; AS WELL AS the final OPINION, entered on September

14, 2018, by the United States Court of Appeals for the Third Circuit, ALSO,

denying Petitioner RELIEF from same said conviction, and sentence. These Court

decisions CONFLICTS with the decision of the United States Supreme Court in

(2017). The Third Circuit's decision in

MANUEL V. CITY OF JOLIET, 580 U.S.

UNITED STATES V. VASQUEZ-ALGARIN, 821 F.3d 467 (2016), and consideration by this

Court, is, THEREFORE, necessary to secure, and maintain, uniformity of any Court

decision(s),

In support of the instant PETITION, Petitioner respectfully offers, unto the

Court, the following STATEMENTS OF FACT:

1. The instant case, and matter, at hand originated as a State Court drug

prosecution, from Dauphin County, PA. On three (3) separate occasions, June 20*

25, and 27, 2014, controlled purchases of crack cocaine were, ALLEGEDLY, made,

from Petitioner, to a Confidential Informant (C.I.), at. various street locations,

in Dauphin County. Detective. David Lau, of the Harrisburg Police Department,

orchestrated said controlled buys. Det. Lau began using said C.I., after previous

contacts with him, for his own narcotics dealing(s). Neither Det. Lau, nor any

other law enforcement officer, observed any transaction(s) between said C.I. > and

Petitioner. During the course of the investigation, said C.I. NEVER IDENTIFIED

Petitioner by name; ONLY, "LOS". HE NEVER PROVIDED Det. Lau with information,

regarding where Petitioner lived. None of the alleged drug transactions), with

said C.I. , occurred at any residence; let alone, Petitioner's residence.

2. Approximately, three (3) weeks later, on July 18. 2014, Det, Lau directed

two (2) Dauphin County Deputy Sheriffs to conduct a WARRANTLESS arrest of

Petitioner, after he was seen exiting a residence on Green Street, and drive

4. •

away, on a scooter. Said arrest was based, SOLELY, on the alleged three (3) prior

drug transactions; three (3) weeks earlier. Petitioner was, immediately, placed

into handcuffs, by the Sheriffs, and, subsequently, searched him; which revealed

crack cocaine, and $500.00 in cash, on his person. Law enforcement requested

consent to search the Green Street residence from Petitioner, and the ignition

key was taken off of the scooter; BOTH WITHOUT Petitioner's CONSENT. Lav?

Enforcement proceeded to, SIMPLY, open the door, WITHOUT CONSENT, and walked into

the kitchen. The sight of the three (3) ARMED officers, hers, and Petitioner's,

children in the kitchen, and Petitioner, himself, handcuffed, "upended", and

startled, Ms. Smith; in, what she thought was, the privacy of her kitchen. Lav?

enforcement, THEN, proceeded to search said residence, WITHOUT Ms. Smith's

GONSENT, where they discovered, and seized, additional crack cocaine, money, and

a 9mm firearm.

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

3. After Petitioner refused to cooperate with the authorities, the case was

referred for federal, prosecution, and Petitioner was, subsequently, indicted, by

a federal Grand Jury, in the Middle District of Pennsylvania, Philadelphia

Division, on December 18, 2014; charging him with four (4) Counts of

distributtion of cocaine hydro chloride (crack cocaine); in violation of 21

U.S.C. § 841(a)(1). On September 10, 2015, a MOTION to suppress physical

evidence, and statements, was filed, in federal District Court. A hearing, on said

MOTION was held on October 6, 2015. At the conclusion of said hearing, District

Court stated that it was ".. .very concerned...." about the "WARRANTLESS" arrest;

with no farther comment(s). '

4. Each of the following errors individually require, and mandate, that

REVERSAL of Petitioner's conviction be had, and be REMANDED back to District

Court, with instructions to VACATE the convicttion, without prejudice, because of

Defendant's. claims of "actual innocence", in light of VASQUEZ-ALGARING (Supra).

The Third Circuit jojned "sister" Circuits in holding that probable cause WAS

REQUIRED to satisfy PAyton's "reason to believe" language, such that officers,

with an arrest warrant for a suspect, had to show "probable cause that the

suspect resided at, or was present, at a particular, private address that WAS NOT

the suspect's home, before forcing entry. This DID NOT OCCUR in the instant case,

and matter, at hand.

5. firstly, the instant case SHOULD EE REVERSED, VACATED, and REMANDED, back

tp the Third Circuit Court of Appeals, because Petitioner's Fourth Amendment

rights were GROSSLY VIOLATED when he was arrested, WITHOUT A WARRANT, by the

Sheriffs. The Sheriffs WERE WITHOUT LEGAL AUTHORITY to legally arrest Petitioner..

6. Secondly, District Court committed REVERSIBLE ERROR, where the ALLEGED

5.

consent to search the Green Street residence, under the totality of the known

circumstances, WAS NOT VOLUNTARY.

7. Thirdly, WITHOUT AN I OBJECTION(S) by defense counsel, District Court

permitted the investigating officer, and orchestrator of the alleged controlled

buys, Det. Lau, to testify in dual roles, as a "fact witness”, and "expert

witness". Det. Lau WAS NEVER QUALIFIED as an "expert witness", and District Court

DID NOT PROVIDE any cautionary instruction, to the jury, regarding his testimony,

as to what constituted "lay" testimony, and "expert" testimony.

8. The Fourth Amendment to the United States Constitution guarantees that:

"...[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..."

9. In VASQUEZ-ALGARIN (Supra), the Third Circuit, as well as its "sister"

Circuits, held that "probable cause" was required to satisfy "reason to believe"

language, such that officers, with an arrest warrant for a suspect, had to show

"probable cause" that the suspect resided at, or was present, at a particular

private address that was not the suspect's home, before forcing entry. The Third

Circuit went on to hold that law enforcement officers need both an arrest

warrant, and a search warrant, to apprehend a suspect at, what they know to be, a

third party's home.

10. As is in Petitioner's instant case, and matter, at hand, NEITHER an

arrest warrant, NOR a search warrant, was obtained to arrest Petitioner, or

search Ashley Smith's Green Street residence. As the record, CLEARLY, reflects,

officers MAY NOT-ENTER a third party's residence to execute ar. arresst warrant

without, FIRST, obtaining a search warrant, based upon the belief that the

suspect might be a guest there, unless the search is consensual, or justified, by

exigent circumstances. In this case, THERE WERE NO exigent circumstances. The

inconvenience incurred by the police is, simply, not that significant, and, in

any event,. CANNOT OUTWEIGH the constitutional interests at stake. Looking at the

entire legal landscape, at the time of the arrest in question, any reasonable

officer .'GOULD NOT HAVE INTERPRETED the law as permitting the arrest here. The

unlawfulness of their conduct was, CLEARLY, established in the U.S. Constitution,

at the time. REICHS V. HOWARD,

U.S. 658 (2012).

11. The Fourth Amendment establishes the standards, and procedures, ■ governing

pre-trial detention, and those constitutional protections apply, even after the

6.

start of legal process in a criminal case. Therefore, the Third Circuit s

INCORRECT ruling was, none other than, arbitrary to that of MANUEL (Supra),

VASQUEZ-ALGARIN (Supra), and UNITED STATES V. YRVEN BAIN, 155 F. Supp. 3rd 107

(2015). It was the fact that Petitioner was a guest at the Green Street

residence, and had no legitimate expectation of privacy in the house of someone

else. Finally, the cause for Petitioner not raising the issue, or issue(s), in

District Court was, solely, due to the ineffectiveness of defense counsel GROSSLY

failing to advocate the lawful objections on behalf of Petitioner, and, thus,

force the government to uphold its burden of proof, beyond a reasonable doubt.

Had this been, the outcome of proceedings would have been quite different.

STRICKLAND V. WASHINGTON, 466 U.S. 668 (1984).

12. Apparently,, for several months, a dispute between Petitioner, and trial

counsel, Shawn M. Dorwood, Esq., followed, where allegations of ineffective

assistance of counsel surfaced, culminating in the filing of a MOTION TO

WITHDRAW, by counsel, on March 15, 2017.. District Court granted that-MOTION, on

March 17, 2017, and, subsequently, appointed the Federal Public Defendant's

Office, assigning Edward J. Ryrasza, Esq.

. V.

STATEMENTS OF THE FACTS, STATEMENTS

OF THE CASE AND SUMMARY OF ARGUMENT(S)

I. DISTRICT COURT ERRED IN DENTING THE MOTION TO

SUPPRESS EVIDENCE WHERE THE SHERIFF'S WARRANTLESS

ARREST VILATED PETITIONER'S FOURTH AMENDMENT RIGHT(S)

The Fourth Amendment to the United States Constitution guarantees the

"...[tjhe right of the people to be secure in their persons, houses, papers, and

effects, against reasonable searches and seizures, shall not be violated, and no

v/arrants shall issue, but upon probable cause • • • ft If ...This power to arrest is an

awesome one and is subject to abuse..." UNTIED STATES V. SANTANA, 427 U.S. 411,

48 (Marshall J., dissenting). The existance of probable cause is a necessary

condition for a valid arrest. DUNAWAY V. NEW YORK, 442 U.S- 200, 213-14 (1979).

The law permits a warrantless arrest upon probable cause, provided that the

strict statutory requirements, to make such an arrest, are satisfies. UNITED

STATES V. WATSON, 423 U.S. 411, 423-24 (1976). Applying this well-enshrined

authority, the warrantless arrest of Petitioner, in the instant case, and matter,

7.

: •v

£

at hand, WAS INVALID.

District Court, and the Court of Appeals, based its decisions to deny

suppression motions solely upon a U.S. Supreme Court case, WATSON (Supra), that

was erroneously believed to be controlling. IT WAS NOT controlling for multiple

reasons.

First, notably, these Courts incorrectly based its decisions on the

erroneous assumptions, and record evidence, that Det. Lau,as is mentioned in the

above, was the individual who made the arrest of Petitioner. HE WAS NOT.. Rather,

it was not a police officer, but, instead, two (2) Dauphin County deputy

sherriffs who conducted the illegal arrest of Petitioner. Det. Lau WAS WOT

PRESENT for said arrest. This crucial distinctioti is fatal.

The validity of an arrest is controlled by the lav/ of the State where, the

arrest occurred. UNITED STATES V. MYERS, 308 F.3d 251 (3rd Cir. , 2002). By

statute, sherriffs, and deputy sheriffs, in Pennsylvania, HAVE NARROW AUTHORITY

that permits them to "...[sjarva process and execute orders directed to him

pursuant to law..." 42 PA. C.S.A. § 2921. In this Commonwealth, the Pennsylvania

Supreme Court has made it abundantly clear that a sheriff, and deputy sheriff,

have limited arrest powers. Indeed, they may, ONLY, make a warrantless arrest, for

felonies, and breaches of the police, COMMITTED IN THEIR PRESENCE. COMMONWEALTH

V. LEET, 641 A.2d 299 (PA., 1994) (Sheriffs have the authority to arrest for

breaches of the peace and for felonies committed in their presence). Also,

COMtfM«EMXri V. DOBBINS, 934 A. 2d 1170 (PA., 2007)-(Because of fa lack of

Statutory authority, sheriffs lack the pov/ar to conduct independant investigation

under the controlled substance act including the seeking of -warrants where no

felony has occurred in their presence).K0PK0 V. MILLER, 892 A.2d 766 (PA., 2006)

(Sheriffs are not investigative or lav/ inforcarnent officers under the wiretap

act).

Hare, no crime, let alone a felony, was committed ir. the presence of the

sheriffs. The sheriffs WERE NOT PART of the lav/ enforcement team involved in the

prior three (3) controlled buys. They DID NOT TESTIFY at the Suppression Hearing,

and THERE WAS NO EVIDENCE elicited that they had any knowledge of said prior

8.

controlled buys. THEREFORE, v,7ithout a warrant, they lacked the authority to

arrest Petitioner.

Second, both Court's dispositive application of WATSON (Supra) ignores the

critical distinctions from the facts of this case. In WATSON (Supra), unlike

here,there was no explicit statute that authorized Postal inspector officers to

make warrantless arrests for felonies if certain conditions were present. WATSON

(Supra) at 415. As such, in that case, the statutory authority was present, and

the inquiry could end there. By contrast, THERE IS NO Pennsylvania statute that

authorizes sheriffs to conduct warrantless felony arrests. Indeed, as the cases

above dramatically illustrate, in Pennsylvania sheriffs have limited authority,

and even more limited warrantless arrest powers.

Finally, warrantless searches, and arrests, by unauthorized personnel, like

the sheriffs here, are, per se, unreasonable, and demands SUPPRESSION. UNITED

STATES V. WHITING, 781 f.2d 692 (9th Cir., 1986) (Export enforcement agent of 4

Commerce Dept, was not "law enforcement agent" authorized to obtain search

waarant or conduct warrantless search and evidence suppressed); UNITED STATES"V.

SOTO-SOTO, 598 F.2d 545 (9th Cir., 1979) (Evidence suppressed where warrantless

search was conducted by FBI agent who was not authorized by statute to conduct

warrantless border search); ALEXANDER V. UNITED STATES, 390 f.2d 101 (5th Cir.,

1968) (Postal inspectors not authorized to conduct warrantless arrest under

statute); UNITED STATES V. VIALE, 312 F.2d 595 (2nd Cir., 1963), Cert, denied;

373 U.S. 903 (1963) (I.R..S. agents lacked authority to arrest defendant without a

warrant absent reasonable cause that he was committing misdemeanor in their

presence).

In their opinions, both Courts expressed "concerns'"’, but felt constrained to

rule in the government's favor solely upon WATSON (Supra). In the absence of that

case being controlling authority, the arrest WOULD NOT HAVE BEEN UPHELD. Both

Courts ERRONEOUSLY believed that this Supreme Court precedent bound it to

disregard the Court's concerns, and rule otherwise. The simple fact remains that,

under the circumstances, in this case, WATSON (Supra) was not controlling. Both

Court's "concerns" were entirly valid. The arrest was net authorized, and. the

Courts SHOULD HAVE VACATED, and REMANDED, for a new trial.

9.

••-■-rT

..ax

■M-

II. DISTRICT COURT AND THE COURT OF APPEALS' DENIAL SUPPRESSION

OF THE SEARCH OF THE GREEN STREET RESIDENCE WAS IN ERROR

BECAUSE NO VALID CONSENT WAS PROVIDED BY EITHER PETITIONER OR MS. SMITH

Given the sanctity of the home, "...searches and seizures inside a home

without a warrant are presumptively unreasonable..." PAYTON V. NEW YORK, 445 U.S.

573, 586 (1980). Every warrantless search of private premises is, per se,

unreasonable, and presumptively invalid, under the Fourth Amendment. KATZ V.

UNITED STATES, 389 U.S. 347 (1967). Moreover, all warrantless searches must fall

under one of the "...few specially established and well-delineated exceptions..."

to the warrant requirement. Id. at 357. One of those established exceptions is a

search conducted pursuant to lav/ful consent. SCHNECKLOTH V. BUSTAMONTE, 412 U.S.

218 (1973). In the absence of a search warrant, issued by a neutral, and

detached, magistrate, the government has the burden of proving that the

warrantless search is consensual, and that such consent was freely, and

voluntarily, given. BUMPER V. NORTH CAROLINA, 391 U.S. 543 (1968). Courts must

use "...the most careful scrutiny..." when reviewing claims by the government:

that a defendant consented to a search.. SCHNECKLOTH (Supra) at 229. whether

consent is voluntary is determined based upon a totality of the circumstances.

Id. at 227. The government's burden "...is not satisfied by showing a mere

submission to a claim of lawful authority..." FLORIDA V. BOYER, 460 U.S. 491, 497

(1983). Being in custody makes the prosecution's burden, to prove consent,

particularly heavy. UNITED STATES V. HALL, 565 F.2nd 917, 920 (5th Cir., 1978).

Courts indulge every reasonable presumption against waiver of fundamental

constitutional rights, and do not presume acquiescence in the loss of fundamental

rights. JOHNSON V. ZERBST, 304 U.S. 458, 464 (1938).

v.

■■■-.

At

X

- ;*

> i'«.

■ s.

Both District Court, and the. Court of Appeals, has focused on several

factors in.determining whether a consent was voluntary, including the age,

education, and intelligence, of the defendant; whether the defendant was advised

of his, or her, constitutional rights, the length of the encounter, use of

physical constraint, and the setting in which the consent was obtained.. UNITED

STATES V. PRICE, 558 F.3d 270, 278 (3rd Cir., 2009).

Applying these important standards, the government DID NOT ESTABLISH that

the consent to search the Green Street property was voluntary. A combination of a

10.

•fit

variety of coercive elements, that were presented here, and overlooked by

District Court, was enough to invalidate any consent.

First, the uncontradicted testimony, at the Suppression Hearing, established

that Petitioner had only a ninth (9th) grade education, was without a high school

diploma, or G.E.D., was illiterate, and suffered from a learning disability.

Second, at the time of his unsubstantiated, purported consent. Petitioner

was UNDENIABLY under arrest, and WAS IN CUSTODY. THEREFORE, his custodial status

WAS NOT VOLUNTARY, and made the subsequent consent to search dubious, from the

start. JUDD V. UNITED STATES. 190 F.2d 649.(D.C,. Cir., 1951) (Consent to search

home involuntary where defendant gave the consent while in police custody).

Third, Petitioner was, immediately, subjected to a coercive atmosphere, at

the time of his arrest. In the process of innocuously operating a motor scooter,

Petitioner was startlingly stopped, in broad daylight, by a marked sheriff's car,

where, he was confronted by two (2) uniformed, and armed, sheriff deputies. After

this immediate, and unmistakable, show of force, he was, immediately, placed

under arrest, and handcuffed. Only after this arrest, was the. unsubstantiated,

purported consent obtained making its validity immensely dubious, from the start.'

Within minutes, a third officer, Det. l.au, arrived, at the scene, and placed his

car in a manner where Petitioner was boxed-in. During this arrest. Petitioner was

described as being

,.very submissive..." to the officers. While he remained in

handcuffs, and after he was searched, he was, ALSO, purported to have been asked

to give consent to search the Green Street residence, while flanked by three (3)

armed officers. NO WRITTEN CONSENT was ever obtained to search the residence in

question by Petitioner, or by Ms, Smith, The three officers, working in tandem

together in the manner in which they did, and their subsequent request for

consent to search the residence, provides indicia of the coercive environment,

invalidating any lawful consent. UNITED STATES V. BEAUCHAMP, 659 F.3d 560 (6th

Cir., 2011) (Consent to search not voluntary where two uniformed officers at

scene placed his hands on defendant's body to conduct search).

Fourth, Det. Lau ACKNOWLEDGED that he could have obtained a search warrant,

but failed to do so.

11.

;. a- .

■s.

"t'J.

Finally, the police escorted Petitioner back to the Green Street residence,

obtained his key from him to open the door to the residence, and were,

immediately, met by Ms. Smith. When the door was opened. Ms. Smith observed her

boyfriend, Petitioner, handcuffed in front of her, flanked by three, armed police

officers, and advised her that he was being arrested for three separate drug

transactions. Based upon this ominous "picture", the police requested her consent

to search the residence. They, further, advised her that if she did not consent,

they would get a search warrant.

Under the totality of the circumstances, the consent to search the Green

Street residence was involuntary, and it was error for District, and Appellate,

Court(s), to conclude otherwise.

Ill. THE COURT INPERMISSIBLY ALLOWED DETECTIVE LAU

TO TESTIFY AS BOTH A LAY WITNESS AND EXPERT WITNESS

WITHOUT PROVIDING ANY APPROPRIATE CAUTIONARY INSTRUCTION

Federal Rules of Criminal Procedure 16(a)(1)(G) requires the government to

disclose a written summary of expert testimony it intends to use, under Federal

Rules of Evidence 702-05. Any expert witness, under Rule 702, requires the

witness to be qualified to testify as an expert. In Re RAOLIR.R. YARD PCB

LITIGATION, 35 F.3d 717 (3rd Cir., 1994).

The dual testimony of a law enforcement fact witness who, also, testifies as

an expert, is problematic, and can be prejudicial to a defendant. UNITED STATES

V. CRUZ, .363 F-3d 187. 194 (2nd Cir., 2004) ("...the testimony of any lav?

enforcement agent who functions as both a fact and an expert witness is

susceptible to the risks posed by such dual testimony...") Where such dual

testimony is presented, District Court should give a clear, cautionary

instruction, to the jury, regarding what testimony is lay witness testimony, and

what is being offered as expert testimony. UNITED STATES V. WILSON, 484 f.3d 267

(4th Cir., 2007) (Court took adequate steps which included a cautionary

instruction to the jury regarding the dual testimony as fact and expert witness

to make certain that the dual role did not prejudice or confuse the jury). The

failure to provide appropriate, cautionary instruction to the jury, regarding the

dual role o,f the law enforcement witness, can amount to REVERSIBLE PLAIN ERROR.

12.

r:*’

.. /a

i

UNITED STATES V. LOPEZ-MEDINA. 461 F.3d 724. 745 (6th Cir., 2006) (District Court

committed "plain error" when it failed to provide cautionary instruction

regarding the agent's dual witness roles nor a clear demarcation between the

witness' fact and espert testimony).

Here, Det. Lau testified, at trial,, as both a fact witness, and an expert

witness. Det. Lau was the officer in charge of the three (3) controlled buys. He

offered testimony at trial regarding all of the details of those transactions,

and the events surrounding Petitioner's arrest. However; without any notice,

without any expert report, and without even being qualified as an expert., Det.

Lau offered expert testimony. Throughout his trial testimony, Det. Lau offered a

wide assortment of unlettered expert testimony. He offered his opinion as to the

street value of an "eight ball" of crack cocaine, in June-July, 2014. He offered

testimony on how drugs are packaged, and sold, on. the street. He offered expert

testimony on the street value of someone who was breaking-down "eight balls", and

selling them for $10.00 per tenth of a gram, opining that its value would be over

$20,000-00. He testified that a crack cocaine user would never earn' an eight

ball". He, further, opined that drug dealers carry guns for protection. He

described, for the jury, "front amounts". He explained drug jargon- Finally, he

even offered testimony that, based upon his training, and experience, Petitioner

possessed a gun, in furtherance of drug activities. Arguably, this testimony ,

VIOLATED Federal Rules of Evidence 704(b). UNITED STATES V. WATSON, 260 F.rd 301

(3rd Cir., 2001) (Conviction reversed where government, violated Rule 704(b)).

The danger in permitting the dual testimony, in this case, is, of course,

self-evident. Without any challenge, whatsoever, Det. Lau was permitted to give

expert testimony, regarding his own investigation, and on the evidence he

recovered. Moreover, his dual testimony, as both a lay witness, and expert

witness, unreasonably provided a FALSE aura of reliability to his testimony. Det,

Lau's credibility, as a lay witness, was impermissibly bolstered by his testimony

as an expert witness, and likely provided more "weight" to the jury than it

deserved. Finally, District, and Appellate, Courts DID NOTHING to minimize the

prejudice. There was no delineation between fact, and expert, witness, and these

- Courts provided no cautionary instruction to the jury. THUS, under the

circumstances, PLAIN ERROR occurredd. LOPEZ-MEDINA (Supra) at 724.

13.

t

•

IV. DISTRICT COURT ERRED IN APPLYING THE TWO-LEVEL

OBSTRUCTION ENHANCEMENT PURSUANT TO U.S.S.G. § 3C1.1

The U.S. Sentencing Guidelines permits a two (2) level sentencing

enhancement where "...the defendant willfully obstructed or impeded, or attempted

to obstruct or impede, the administration of justice with respect to the

investigation, prosecution, or sentencing of the instant offense of

conviction..." U.S.S.G. § 3C1.1. Obstructive conduct must be "material" and,

thus, must have had some impact on the investigation, or prosecution. UNITED

STATES V. JENKINS, 275 F.3d 283 (3rd Cir., 2001) (Finding no evidence that the

federal proceedings were impeded by defendant's failure to appear in State

Court). Where a defendant's conduct does not significantly impede the

investigation, the enhancement is improper. UNITED STATES V. MORALES-SANCHEZ, 609

F.3d 637 (5th Cir. , 2010) (Reversing obstruction increase for lack of showing

that defendant's phone call from police car hindered the investigation). The

government bears the burden of establishing, by a preponderance of the evidence,

that the defendant obstructed, or impeded, the administration of justice. UNITED

STATES V. BRENNAN, 326 F.3d 176 (3rd Cir., 2003).

Here, the P.S.I. provided two (2) reasons for the application of the

obstruction enhancement: (A) Petitioner purportedly lied under oath, at the

Suppression Hearing, by stating he never drove a particular car, and denied

selling drugs; and (B) Petitioner met with the "informant", and received a

recorded statement from him, in which he stated that the drug deals never

occurred. (P.S.I. 1MI 13-14 "UNDER SEAL"). NO ADDITIONAL EVIDENCE to support the

enhancement was elicited at sentencing.

First, with regard to the recorded statement from the confidential

"Informant", the government did not know anything about the recording until the

eve of the trial, and was only provided to the government on the morning of the

trial (P.S.I. 14). Nevertheless, that RECORDING WAS NEVER USED by the defense at

trial. Thus, given the timing of the disclosure tin the morning of trial, and its

non-usage, it is hard to fathom how the recording was material, or how it could

have impeded the investigation. As such, application of the enhancement, on this

basis, was without merit. JENKINS (Supra) at 283; UNITED STATES V. SCOTT, 405

F.3d 615 (7th Cir., 2005) (Defendant's conduct during pre-trial release did not

14.

■i

X:

complicate prosecution of fraud charges); UNITED STATES V. JONES, 159 F.3d 969

(6th Cir., 1998) (Reversing increase where defendant's false testimony about

racial slurs was not relevant to sentencing). Likewise, there was no evidence

that the "Informant" was threatened, or intimidated, into giving the statement.

UNITED STATES V. MCLAUGHLIN, 126 F.3d 130 (3rd Cir., 1997)( (Reversing

enhancement even though defendant sent investigators to secretly tape recorded

statement from witnesses, because there was no claim that the secret tape

recording intimidated or lav/fully influenced any witness).

Second, petitioner's testimony, at his own Suppression Hearing, which may

have been later been contradicted by the trial testimony, DID NOT REFLECT a

willful attempt to obstruct justice. UNITED STATES V, CANOVE, 412 F.3d 331 (2nd

Cir., 2005) (Affirmed District Court's conclusion that obstructive intent was not

shown by preponderance) ; UNITED STATES V. AGOSTINO, 332 F.3d 1183 (7th Cir.,

1997) (Upholding refusal to increase even though defendant's Grand Jury testimony

was contradicted by other witnesses) ; UNITED STATES V. SANDERS, 341 F.3d 809 (8th

Cir., 2003) (Court's rejection of defendant's version did not require obstruction

increase). Consequently, the evidence was insufficient to support the two (2)

level obstruction enhancement in the instant case, and matter, at hand.

15.

2-

J

REASONS FOR GRANTING THE PETSTION

The compelling reason(s) that exist for the exercise of this Court's

discretionary jurisdiction is to try to show that, not only was that both

District Court's, and the Third Circuit Court of Appeals', decision(s) were,

INDEED, erroneous, but that the national importance of having the United States

Supreme Court decide the question(s) involved in the instant WRIT OF CERTIORARI

presented, herein.

It is crucially important to show that said decision(s) of these two (2)

lower Courts, that decided Petitioner's case, at hand, in in dire conflict with

the decisions of the plurality of other sister Appellate Courts. The importance,

of the case, and matter, at hand is not only important to petitioner, but to so

many others similarly situated.

The ways that the decisions of the two (2) lower Courts, involved in the

instant case, and matter, at. hand was, INDEED, erroneous.

16.

/

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

---- ——

LAQUAN L. KELLAM, PETITIONER

Date: £ ~tO~

! /2019______

17.