Petition for Writ of Certiorari — Arturo Fernando Shaw Gutierrez, Petitioner v. California

Supreme Court briefApr 28, 2020

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Text

No.

In The

Supreme Court of the United States

Arturo Fernando Shaw Gutierrez,

Petitioner,

People of the State of California,

Respondent.

On Petition For Writ Of Certiorari

To The California Court of Appeals,

Fourth District Division Three

PETITION FOR A WRIT OF CERTIORARI

Arturo Fernando Shaw Gutierrez

Prose

603 Golden West Ave.

Ojai, CA 93023

(805) 535-9539

gcglaw@gmail .com

The police searched email, stored on a commer

cial internet service provider’s servers, without

warrant or consent and in violation of federal law.

The facts and issues raised herein, relate to this

Court’s question, posed in Carpenter v. United States,

138 S.Ct. 2206, 2222 (2018), “leaving open the

question whether the warrant requirement applies

‘when the Government obtains the modern-day

equivalents of an individual’s own ‘papers’ or ‘effects,’

even when those papers or effects are held by a third

party.’”

QUESTIONS PRESENTED

Does the Fourth Amendment protect individuals who

send or receive stored electronic communications

(emails) as provided under federal law through the

Stored Communications Act, 18 U.S.C. § 2701, et seq.?

Was the sender’s Fourth Amendment right violated

when law enforcement warrantlessly viewed the

sender’s private electronic communications (emails),

while stored in the recipient’s account on a commer

cial internet service provider’s servers, without

consent from either the sender or recipient, in viola

tion of federal law?

STATE COURT PROCEEDINGS

People of the State of California v. Arturo Fernando

Shaw Gutierrez, No. 13CF2368, Superior Court of

Orange County California. Judgment entered Dec. 29,

2014 and Jan. 5, 2015.

People of the State of California v. Arturo Fernando

Shaw Gutierrez, No. G052552, California Court of

Appeals, District Four Division Three. Judgment

entered Jan. 9, 2018.

People of the State of California v. Arturo Fernando

Shaw Gutierrez, No. S247111, California Supreme

Court. Review denied Apr. 25, 2018.

In re Arturo Fernando Shaw Gutierrez, No. M-17501XA, Superior Court of Orange County California.

Denied June 14, 2018.

Arturo Fernando Shaw Gutierrez on Discipline, No.

12"C‘17847, State Bar Court of California. Judgment

entered Jan. 3, 2019.

In re Arturo Fernando Shaw Gutierrez on Discipline,

No. S254277, California Supreme Court. Judgment

entered Apr. 24, 2019.

In re Arturo Fernando Shaw Gutierrez, No. G056821,

California Court of Appeals, District Four Division

Three. Denied June 13, 2019.

In re Arturo Fernando Shaw Gutierrez, No. S257074,

California Supreme Court; Petition for the Writ of

Habeas Corpus and the Motion to Order the Court of

Appeals to Recall the Remittitur and Reassert

Appellate Jurisdiction for a Rehearing. Discretionary

review denied Feb. 11, 2020.

TABLE OF CONTENTS

QUESTIONS PRESENTED..................

STATE COURT PROCEEDINGS

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

CITATIONS FROM THIS CASE...........

JURISDICTION......................................

TEXT OF AUTHORITIES USED..........

STATEMENT OF THE CASE

Facts...........................................

Trial Court

Court of Appeals

Continued Diligence

Reinstatement of Appeal

LEGAL ARGUMENT.............................

Fourth Amendment

Exceptions to Warrantless Searches

Congress Did Not Permit Consent to

Searches of Content of Electronic

Communications_

Reasonable Expectation of Privacy..,

Warrantless Searches

Miller is Inapplicable to the SCA

Suppression

CONCLUSION

APPENDICES (Filed Unattached)

Table of Contents

Appendix A

Court of Appeals Unpublished Opinion,

People v. Gutierrez G052552 (2018)

Appendix B

26a

California Supreme Court Denial of

Petition for Habeas Corpus and Motion

to Recall Remittitur and Reinstate Appeal,

In re Arturo Fernando Shaw Gutierrez

S257074 (2020)

Appendix C

California Penal Code § 1538.5

27a

Appendix D

Superior Court Orange County

13CF2368 Reporter’s Transcript

38a

Appendix E

Excerpt from Attorney’s General Brief

46a

Appendix F

Prayer from Petition for Habeas Corpus

48a

SEALED APPENDICES (Filed Unattached)

Appendix G

Documentary Evidence in Support of

Petition from the Record on Appeal,

i.e., Clerk’s Transcript

55sa

Appendix H

Documentary Evidence in Support of

Petition from the Petition for

Habeas Corpus Exhibits.

66sa

TABLE OF AUTHORITIES

Fourth Amendment

xii, 13

FEDERAL CASES

Alcorta v. Texas, 355 U.S. 28 (1953)....................

Alderman v. United States, 394 U.S. 165 (1968)

................................................................. 13, 14, 19, 26

Bartnicki v. Vopper, 532 U.S. 514 (2001)

Beck v. Ohio, 379 U.S. 89 (1964)

Berger v. United States, 295 U.S. 78 (1935)......

Blackledge v. Perry, 417 U.S. 21 (1974)..............

Borough ofDuryea, Pa. v. Guarnieri, 131 S. Ct.

2488, 2496 (2011)...............................................

2, 28

Butz v. Economou, 438 U.S. 478 (1978)

Cardinal Health Inc., v. Adams, 582 F Supp

2d 967 (U.S. Dist. Ct. M.D. Tenn. 2008)

Carpenter v. United States, 138 S.Ct. 2206 (2018)

.................................................................... i, 12, 27, 33

City of Ontario v. Quon, 130 S.Ct. 2619 (2010)

18, 20

Crawford-El v. Britton, 523 U. S. 574 (1998)

Dakota County v. Glidden, 113 U.S. 222 (1885)_

Department of Homeland Security v. MacLean,

135 S. Ct. 913 (2015).........................................

Elkins v. United States, 364 U.S. 206 (i960)

Gentile v. State Bar of Nevada, 501 U.S. 1030

(1991)...........................................

32, 33

Giglio v. United States, 405 U.S. 150 (1972)

Goldstein v. United States, 316 U.S. 114 (1942)

Grayned v. City ofRockford, 408 U.S. 104

(1972)

Hartman v. Moore, 547 U.S. 250 (2006)

Herring v. United States, 129 S.Ct. 695 (2009)

Hibbs v. Winn, 542 U.S. 88 (2004)

Holland v. Florida, 560 U.S. 631 (2010)

Houston v. Hill, 482 U.S. 451 (1987)

In Matter of US, 665 F Supp 2d 1210

(D. Or. 2009)

Jones v. United States, 362 U.S. 257 (i960)

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

..................................................... 14,15, 17,20,25, 26

Konop v. Hawaiian Airlines, Inc., 302 F.3d 868

(9th Cir. 2002)

23, 24

Lee v. Florida, 392 U.S. 378 (1968)

9, 10, 22, 26, 30, 32

Mapp v. Ohio, 367 U.S. 643 (1961)

29, 30

Marino v. Ragen, 332 U.S. 561 (1947)

Massachusetts v. Shepperd, 104 S.Ct. 3424 (1984) 29

Menna v. New York, 423 U.S. 61 (1975)

Microsoft v. United States, 829 F.3d 197

(2nd Cir. 2016)..............................................

Miller v. California, 413 U.S. 15 (1973).

Miller v. United States, 425 U.S. 435 (1976)

7, 26, 27

Minnesota v. Carter, 525 U.S. 83 (1998).

Mooney v. Holohan, 294 U.S. 103 (1935)

Napue v. Illinois, 360 U.S. 264 (1959)

Nardone v. United States, 308 U.S. 338 (1939).. 24, 29

Nieves v. Bartlett, 139 S.Ct. 1715 (2019)

Olmstead v. United States, 277 U.S. 438 (1928)

12, 17, 33

Quon v. Arch Wireless Operating Co., Inc.,

529 F.3d 892 (9th Cir. 2008)

Rakas v. Illinois, 439 U.S. 128 (1978)

14, 15, 19

Riley v. California, 134 S.Ct. 2473 (2014) ......20, 25

Russello v. United States, 464 U.S. 16 (1983)

Silverman v. United States, 365 U.S. 505 (1961) 14

Silverthorne Lumber Co. v. United States,

251 U.S. 385 (1920).........................................

Skinner v. Railway Labor Executives’ Assn.,

489 U.S. 602 (1989)........................................

Smith v. Maryland, 442 U.S. 735 (1979)

Speiser v. Randall, 357 U.S. 513 (1958)

6, 32

Stone v. Powell, 428 U.S. 465 (1976)

United States v. Jones, 565 U.S. 400 (2012)

United States v. Lee, 106 U.S. 196 (1882)

United States v. Leon, 104 S.Ct. 3405 (1984)

United States v. Long, No. 05-5002/MC (2006)

United States v. Maxwell, 45 M. J. 406

(C.A.A.F. 1996).................................................

United States v. Warshak, 631 F.3d 266

(6th Cir. 2010)

18, 25

United States exrel. McCann v. Adams,

320 U.S. 220 (1943)..........................................

Waley v. Johnston, 316 U.S. 101 (1942)

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

Wyatt Tech. Corp. v. Smithson, No. 05-1309

(C.D.Cal.2006)

CALIFORNIA CASES

Badillo v. Superior Court 46 Cal. 2d 269 (1956)

Facebook, Inc. v. Superior Court (Hunter),

4 Cal.5th 1245 (2018)

15, 25

Vll

In re Bower, 38 Cal. 3d 865 (1985)...................

In re Martin, 58 Cal.2d 133 (1962)..................

People v. Hardy, 5 Cal.5th 56 (2018)

People v. Johnson, 38 Cal. 4th 717 (2006)........

People v. Keister, 198 Cal.App.4th 442 (2011)

People v. Scott, 9 Cal.4th 331(1994).................

People v. Superior Court (Laff), 25 Cal.4th

703 (2001)

xi, 6

x, 11

STATUTES

United States Code

18 U.S.C. § 2701(a)(1)....

18 U.S.C. § 2701(a)(2)....

18 U.S.C. § 2701(b)(1)(B)

18 U.S.C. § 2701(c)(2)....

18 U.S.C. § 2701(c)(3)....

18 U.S.C. § 2702(b)(3)....

18 U.S.C. § 2703(a).......

18 U.S.C. § 2708 ...........

28 U.S.C. § 1254(1)

28 U.S.C. § 2101(d).......

..... xii, 1, 9, 19, 20, 26

...xii, 1,10,19, 21, 26

xii, 19

................. .xiii, 23, 24

........................xiii, 24

.........................xiii, 24

xiii, 10, 22, 23, 24, 25

....... xiv, 28

xi, xiv

California Business and Professions Code

§ 6068(e)(1)...................

California Penal Code

§ 288.3(a)

§ 1538.5........................

xiv, 8

...... xiv, 7

6, Appendix C

OTHER RESOURCES

Federal Rules of Civil Procedure

Rule 5.2(a)(3)

xiv, 5

Rules of the Supreme Court of the United States,

Rule 13.1.................................................................

Rule 13.3

X, XI

House of Representatives Report 99*647 (1986)

.......................................................... 17,23, 26,27,28,29

CITATIONS FROM THIS CASE

People of the State of California v. Arturo Fernando

Shaw Gutierrez, 13CF2368 (2015)

People of the State of California v. Arturo Fernando

Shaw Gutierrez, G052552 (2018)

People of the State of California v. Arturo Fernando

Shaw Gutierrez, S247111 (2018)

In re Arturo Fernando Shaw Gutierrez, M*17501*XA

(2019)

In re Arturo Fernando Shaw Gutierrez, G056821

(2019)

Arturo Fernando Shaw Gutierrez on Discipline, 12*C*

17847 (2019)

In re Arturo Fernando Shaw Gutierrez on Discipline,

S254277 (2019)

In re Arturo Fernando Shaw Gutierrez, S257074

(2020)

JURISDICTION

Arturo Fernando Shaw Gutierrez (Gutierrez)

petitions for a writ of certiorari to review the

judgment of the Court of Appeals of the State of

California, Fourth District Division Three (the “Court

of Appeals”), pertaining to the Fourth Amendment

issues raised.

The Court of Appeals issued its Opinion and

Judgment on January 9, 2018 (G052552). Petitioner

timely petitioned the California Supreme Court for

review! which was denied on April 25, 2018 (S247111).

A Motion to Recall the Remittitur and Order to

Reinstate the Appeal (i.e., a rehearing) (see Appendix

F p. 49a) as a part of the Petition for the Writ of

Habeas Corpus was filed with the Court of Appeals

(G056821) and later with the California Supreme

Court (S257074), which exercised its discretion and

issued a denial of the motion for rehearing on

February 11, 2020.

To be clear, Petitioner is not seeking a petition

for a writ of certiorari for the denial of the habeas

petition, only of the Court of Appeals’ ruling preserved

through the subsequent denials of motions for

rehearing pursuant to Rules of the Supreme Court of

the United States, Rule 13.31 that are required by

state procedure to be made through habeas corpus2

because of evidence dehors the record being

1 Rule 13.3 (“But if a petition for rehearing is timely filed in the

lower court by any party, ... the time to file the petition for a writ

of certiorari for all parties ... runs from the date of the denial of

rehearing....”)

2 In re Martin 58 Cal.2d 133, 138 139 (1962) (reinstate criminal

appeal when result was product of fraud or incomplete

knowledge of all the facts)

introduced.3 Therefore, this court has jurisdiction

pursuant to both Rules 13.1 and 13.3, (see e.g., Hibbs

v. Winn, 542 U.S. 88, 99 (2004); 28 U.S.C. § 2101(d);

Holland v. Florida, 560 U.S. 631 (2010)) because the

California Supreme Court exercised discretion in

denying the motion and order to reinstate the appeal

for a rehearing4 on February 11, 2020.

The jurisdiction of this Court is invoked under

28 U.S.C. § 1254(1).

3 In re Bower, 38 Cal. 3d 865, 872 (1985) (Habeas is required to

introduce facts outside the record) see also e.g., Marino v. Ragen,

332 U.S. 561, 562 (1947), United States ex rel. McCann v.

Adams, 320 U.S. 220, 221-222 (1943), Waley v. Johnston, 316

U.S. 101, 104 105 (1942), Dakota County v. Glidden, 113 U.S.

222, 225 (1885).

4 See Habeas Corpus Prayer Appendix F p. 49a.

TEXT OF AUTHORITIES USED

Fourth Amendment to the Constitution of the United

States^

“The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be

violated, and no warrants shall issue, but upon

probable cause, supported by oath or affir

mation, and particularly describing the place to

be searched, and the persons or things to be

seized.”

United States Code

18 U.S.C. § 2701(a)

(a) Offense — Except as provided in subsection (c)

of this section whoever—

(1) intentionally accesses without authorization

a facility through which an electronic communi

cation service is provided;

(2) intentionally exceeds an authorization to

access that facility; and thereby obtains, alters,

or prevents authorized access to a wire or elec

tronic communication while it is in electronic

storage in such system shall be punished as

provided in subsection (b) of this section.

18 U.S.C. § 2701(b)(1)(B)

(b) Punishment.— The punishment for an

offense under subsection (a) of this section is—

(l) if the offense is committed for purposes of

commercial advantage, malicious destruction or

damage, or private commercial gain, or in

furtherance of any criminal or tortious act in

violation of the Constitution or laws of the

United States or any State—

(B) a fine under this title or imprisonment for not

more than 10 years, or both, for any subsequent

offense under this subparagraph;

18 U.S.C. § 2701(c)(2)

(2) by a user of that service with respect to a

communication of or intended for that user; or

18 U.S.C. § 2701(c)(3)

(3) in section 2703, 2704 or 2518 of this title.

18 U.S.C. § 2702(b)(3)

(b) Exceptions for disclosure of communr

cations.— A provider described in subsection (a)

may divulge the contents of a communication—

(3) with the lawful consent of the originator or

an addressee or intended recipient of such

communication, or the subscriber in the case of

remote computing service;

18 U.S.C. § 2703(a) .

(a)

Contents

of Wire

Electronic

Communications in Electronic Storage.— A

governmental entity may require the disclosure

by a provider of electronic communication

service of the contents of a wire or electronic

communication, that is in electronic storage in

an electronic communications system for one

hundred and eighty days or less, only pursuant

to a warrant issued using the procedures

described in the Federal Rules of Criminal

Procedure (or, in the case of a State court, issued

using State warrant procedures) by a court of

competent jurisdiction. A governmental entity

may require the disclosure by a provider of

electronic communications services of the

contents of a wire or electronic communication

that has been in electronic storage in an

electronic communications system for more than

one hundred and eighty days by the means

available under subsection (b) of this section.

18 U.S.C. § 2708

The remedies and sanctions described in this

chapter are the only judicial remedies and

sanctions for nonconstitutional violations of this

chapter.

28 U.S.C. § 1254(1)

By writ of certiorari granted upon the petition of

any party to any civil or criminal case, before or

after rendition of judgment or decree.

28 U.S.C. § 2101(d)

The time for appeal or application for a writ of

certiorari to review the judgment of a State court

in a criminal case shall be as prescribed by rules

of the Supreme Court.

Federal Rules of Civil Procedure Rule 5.2(a)(3)

(a) Redacted Filings. Unless the court orders

otherwise, in an electronic or paper filing with

the court that contains an individual's socialsecurity number, taxpayer-identification num

ber, or birth date, the name of an individual

known to be a minor, or a financial-account

number, a party or nonparty making the filing

may include only-(3) the minor's initials!

California Codes

California Business and Professions Code § 6068

It is the duty of an attorney to do all of the

following:

(e)(1) To maintain inviolate the confidence, and

at every peril to himself or herself to preserve the

secrets, of his or her client.

xiv

California Penal Code § 288.3(a) (From the year 2012)

Every person who contacts or communicates

with a minor, or attempts to contact or communi

cate with a minor, who knows or reasonably

should know that the person is a minor, with

intent to commit an offense specified in Section

207, 209, 261, 264.1, 273a, 286, 288, 288a, 288.2,

289, 311.1, 311.2, 311.4 or 311.11 involving the

minor shall be punished by imprisonment in the

state prison for the term prescribed for an

attempt to commit the intended offense.

California Penal Code § 1538.£>

(See Appendix C)

STATEMENT OF THE CASE

FACTS

The facts prove that the police, without

warrant or consent, committed federal felony searches

of private online electronic communications (e-mails)

on the servers of Facebook, Inc. (Facebook) in viola

tion of 18 U.S.C. § 2701(a)(1) and the Fourth Amend

ment and illegally read e-mails sent from Gutierrez to

the intended recipient, M.P.

Both Gutierrez and M.P. had their security

settings set to the highest level of protection and both

had password protected accounts. At all times, said

communications were directed through a private

format using Facebook Messenger and were not

publicly displayed. The police admitted to these

nonconsensual and warrantless searches in their

police reports but omitted these illegal searches from

the affidavits. The Internet Protocol (IP) address

history from the recipient’s account proves that the

police were illegally surveilling the e-mails from the

police station as of 10/16/12.

Only after the affiant, Detective Jacob

Sorensen (Sorensen) of the Los Alamitos Police

Department in Orange County, California, illegally

read attorney-client privileged emails pertaining to

himself, wherein M.P. requested legal advice on

10/20/12 (Appendix G p. 65sa) from Gutierrez

regarding the police having illegally commandeered

her other e-mail account without warrant or consent

and Gutierrez’s legal advice to sue the police and

obtain an injunction, did Sorensen begin to research

and investigate Gutierrez on 10/24/12, proven by the

dates on the RAP sheet (police background check) and

DMV print out (Appendix H pp. 73sa-77sa). Sorensen

further perjured himself in the affidavits regarding

the date the investigation began, stating that a

request for information was obtained on 10/7/12 and

10/30/12 (Appendix G pp. 56sa-57sa). However, the

only documents in discovery state that this

information was obtained on 10/24/12, a date

completely omitted in the police reports and affidavits

(Appendix G pp. 56sa-57sa; Appendix H pp. 69sa70sa). From its inception, this case has been born of

federally felonious searches and an intent to retaliate,

subjecting Gutierrez to “unconstitutional animus”

Butz v. Economou, 438 U.S. 478, 512 (1978).

The police interviewed M.P. for nearly five

hours on 10/30/12 and inquired about numerous adult

men that were exchanging naked photos with her and

exchanging thousands of sexually vulgar communi

cations with herJ the evidence proves Gutierrez had

not engaged in this criminal conduct with M.P.

The police only briefly inquired about Gutierrez

four times on 10/30/12 regarding his capacity as an

attorney and said this at the end of the interview:

October 30, 2012:

Walsvick1: “Stop chatting with guys who

claim to be attorneys and

listening to their advice. And

stick to his —”

M.P.:

“Are you saying he’s not an

attorney, Art?”

Walsvick: “— and mine. No, but most

attorneys are bottom —”

Sorensen: “Scumbags.”

Walsvick: “— bottom-dwelling scumbags.”

1 Investigator Wade Walsvick of the Orange County Sheriffs

Department.

M.P.:

Walsvick:

M.P.:

“Okay, I don’t care.”

“You should.”

“They’re attorneys, isn’t it like

their job?”

Walsvick: “No.”

M.P.:

“No? Oh well okay. I didn’t talk

to him much.”

(Appendix G p. 64sa)

Earlier in the interview, law enforcement

requested numerous times for consent from M.P. to

use her Facebook account to communicate with an

unrelated male named “Steve Ross,” M.P. repeatedly

denied this request but after substantial pressure

finally acquiesced. They requested her login

information and password and then gained control of

her Facebook account.

This was the exchange on October 30, 2012:

Walsvick: “Obviously.

[M.P.]sGotMade@gmail. What’s

your password?”

M.P.: “Google.”

Walsvick: “The word ‘Google?’ You went all

out for that one.”

Sorensen: “You know - You know —“

M.P.: “A capital‘G.”’

Walsvick: “That’s funny.”

M.P.: “Why, did you try?”

Sorensen: “No.”

M.P.:

Walsvick: “Why would we try?”

M.P.: “You didn’t try to get in to my - ”

Sorensen: “What, your Facebook?”

M.P.: “Yeah.”

Sorensen: “No.”

Walsvick: “No.” (Appendix G p. 58sa)

After the password was tendered, it was clear

that M.P. was unaware of any prior access by law

enforcement, and both detectives deny doing so.

Conclusively, M.P. at no time prior to that

moment, had consented away from the audio

recording.

Sorensen: “You know ITm changing your

password for a couple of days.”

M.P.: “Ugh.” (Appendix G p. 60sa)

This is the IP address history from M.P.’s

Facebook account (Appendix H pp. 67sa-68sa):

Password

10/30/12 23:38 UTC2 24.199.19.10

Change

10/30/12 23:33

UTC 24.199.19.10 Login

Session

10/16/12 19:48 UTC 24.199.19.10

updated

The Police IP address, 24.199.19.10, was evi

denced as accessing M.P.’s account, from the Los

Alamitos Police Station on 10/16/12 (Appendix H p.

67sa), a full two weeks prior to the “Password

Change” (Appendix H p. 68sa) and the limited consent

to only speak with Steve Ross on 10/30/12.

Sorensen: “Like-like we told you, we’re not

gonna talk to anybody but Steve.”

M.P.: “Okay. But Steve. All right. Okay.”

(Appendix G p. 59sa)

Subsequently, searching beyond the scope of

limited consent, the affiant then claimed to have read

all of the Facebook messages between Gutierrez and

M.P. after 10/30/12 (Appendix G p. 57sa).

2 Facebook reports all times in UTC time zone, i.e., Greenwich

Mean Time.

On 11/6/12, the police requested consent five

times from M.P. to use her Facebook account to

communicate with Gutierrez. Each time M.P. denied

consent and demanded the return of her Facebook

account. The police disregarded the denials of consent

and began to use her Facebook account to speak to

Gutierrez without warrant or consent. “On November

6, 2012, the Detective interviewed [M.P.]3 again.

[M.P.] denied police further access to her Facebook

account.” (People v. Gutierrez G052552 (2018) Appen

dix A p. 6a).

November 6, 2012:

M.P.: “Hm. Um really don’t know which

one you’re gonna do next?

Sorensen: “No.” ... “Something could pop up

quicker with another person and

put somebody else in front of the

line, so.” (Appendix G p. 6Isa)

Sorensen: “Why won’t you let me try and go

get Art?”

M.P: "... It’s a waste of your time.”

Sorensen: “If this- No. It’s not a waste of my

time.” (Appendix G p. 62sa)

M.P: “Anything else? Nothing? Not gonna

tell me what your next move is?”

Sorensen: “Nope. Art was my next move.”

M.P: “Yeah? Sorry about that. Did you

change my password back?”

(Appendix G p. 63sa)

3 The Court of Appeals referred to M.P. as “Doe” but in

compliance with Federal Rules of Civil Procedure, Rule 5.2(a)(3)

the initials “M.P.” are used to replace “Doe”.

Gutierrez had committed no crime but was

moved to the “front of the line.”

M.P. complained to law enforcement on

11/13/12 about their continued use of her account

without consent (Appendix H p. 72sa) and the police

again unlawfully disregarded her.

On 11/29/12, warrants were prepared based on

these illegal searches and contained extensive fabri

cated evidence, perjury, material misrepresentations

and omissions of direct exculpatory evidence of mens

rea. Gutierrez was arrested on 12/1/12.

There is evidence to prove every statement

above, but because of the affiant’s perjury and

omissions, as well as California’s refusal to allow for

an evidentiary hearing, an evidentiary record was

precluded from being made.4

TRIAL COURT

Gutierrez filed motions, under seal, to suppress

evidence pursuant to California Penal Code § 1538.5

for violations of the Fourth Amendment regarding

4 Because Gutierrez was denied his Fourteenth Amendment

right to a full and fair hearing, cf. Stone v. Powell, 428 U.S. 465,

481-482 (1976) (constitution requires “an opportunity for full

and fair litigation of a Fourth Amendment claim”), see also

Speiser v. Randall, 357 U.S. 513, 520 521 (1958) (“procedural

safeguards surrounding those rights”); see also People v.

Johnson, 38 Cal.4th 717 (2006) (mandating live testimony at the

hearing, pursuant to California Penal Code §1538.5); the record

consists of documents attached to the motion to suppress and

those provided to the state court via habeas corpus so that the

appeal could be reinstated and decided on the facts. “It is equally

well established, however, that when reference to matters

outside the record is necessary to establish that a defendant has

been denied a fundamental constitutional.right resort to habeas

corpus is not only appropriate, but required.” In re Bower, 38

Cal. 3d 865, 872 (1985).

warrantless searches in violation of the SCA and for

warrants that contained multiple acts of perjury and

concealment of exculpatory evidence.

The People did not refute or deny the perjury

but argued that multiple acts of perjury was

permissible under Franks v. Delaware 438 U.S. 154

(1978) and that there was no expectation of privacy in

e-mail pursuant to Miller v. United States, 425 U.S.

435 (1976). Yet, Congress expressly made Miller

inapplicable to the SCA.

The trial court entertained oral arguments and

then found there was no expectation of privacy in email once sent (Appendix D pp. 42a_43a). No evidence

was received and no witnesses were called to the

stand (Appendix D pp. 39a-41a).

Then the Court heard arguments on the motion

to quash and traverse the warrants based on perjury.

During this argument, the court admitted that it was

previously unaware of the perjury regarding denial of

consent and then acknowledged that the police were

not forthcoming about consent being denied in the

affidavits (Appendix D pp. 44a-45a).

The court then found that the exculpatory

statement should have been included in the affidavits

for warrant and that it was reckless for the affiant to

have omitted them (Appendix A pp. 10a! 23a), then

found probable cause on a statute that violated Void

for Vagueness5 and summarily denied the motion.

6 While not raised in this Petition, California Penal Code

§288.3(a) has no defined conduct related to a speech offense: “The

.only time the communication is criminal is if it is motivated by a

specific intent to commit an enumerated sex crime.” People v.

Keister, 198 Cal.App.4th 442, 449 (2011). The detective omitted

from police reports and affidavits that he had to resort to begging

just to get Gutierrez to respond to their questions, proving no

Again, without allowing witnesses or evidence to be

received.

Two weeks prior to filing charges based on

perjury and fabricated evidence, the prosecutor called

a meeting with Gutierrez’s attorney and threatened

multiple years in prison if the case was fought at trial,

then after the motion to suppress was denied,

Gutierrez was offered house arrest; unable to defend

himself without revealing exculpatory attorney-client

privilege because of California Business and Profes

sions Code § 6068(e)(1), and the jury pool having been

willfully destroyed by the police through the

dissemination of lies to the media, Gutierrez accepted

the deal and plead guilty.

COURT OF APPEALS

“The court reasoned that ‘once the send button

is pushed, whether it is e-mail, or text or, in this case,

[a] message from one Facebook account to another,

that Fourth Amendment expectation of privacy is

gone.’” [Brackets in original.] (People v. Gutierrez

G052552 Appendix A pp. 8a-9a)

The perjury by the police, followed by the

misrepresentations by the Attorney General in the

briefing process were numerous. “Police did not access

appellant’s messages through the Facebook comp

any.” [Emphasis added.] (Attorney General Brief,

motivation by Gutierrez. Then alleged the act as “lewd” which

the California Supreme Court has expressly refused to define,

see People v. Scott 9 Cal.4th 331, 344 at n.7 (1994). “A vague law

impermissibly delegates basic policy matters to policemen, ... the

attendant dangers of arbitrary and discriminatory application.”

Grayned v. City of Rockford 408 U.S. 104, 108-109 at n.5 (1972).

“That conduct must be specifically defined by the applicable state

law, as written or authoritatively construed.” Miller v. Califor

nia, 413 U.S. 15, 24 (1973).

Appendix E p. 47a n.3).6 Which were relied on by the

Court of Appeals^ “There is no evidence the Detective

infiltrated Facebook’s servers surreptitiously to view

Gutierrez’s Messages to [M.P.]” (People v. Gutierrez

G052552 Appendix A p. 14a).

There has always been evidence that Sorensen

“infiltrated Facebook’s servers surreptitiously”. The

IP address history proves illegal access from the police

department, corroborated by the admissions in the

police reports that Sorensen read Gutierrez’s

Facebook messages prior to 10/30/12 (Appendix H pp.

69sa-70sa) and admissions by police in the 10/30/12

audio (told M.P. to disregard legal advice to sue them)

which prove that the affiant, Sorensen, “view[ed]

Gutierrez’s Messages to [M.P.]” after “the Detective

infiltrated Facebook’s servers surreptitiously” (ibid).

This perjury and misrepresentation regarding

police concealment of their federally felonious

searches (18 U.S.C. § 2701(a)(1)) in the affidavit,

caused the Court of Appeals to disregard the mandate

set forth by this Court “nothing short of mandatory

exclusion of the illegal evidence will compel respect for

the federal law” Lee v. Florida, 392 U.S. 378, 385-386

(1968).

“In his affidavit the Detective wrote, ‘On

October 30, 2012[,] [M.P.] gave me access to her

Facebook and allowed me to assume her profile.’ The

6 See “Prosecutors, especially, are expected, even required, to be

truthful and to seek justice, not a conviction at any cost. (E.g.,

Berger v. United States (1935) 295 U.S. 78, 88 Q.)” People v.

Hardy, 5 Cal.5th 56, 81 (2018). See also, Mooney v. Holohan,

U.S. 103 (1935) (prosecutor’s known use of perjury); Alcorta v.

Texas, 355 U.S. 28 (1953) and Giglio v. United States, 405 U.S.

150 (1972) (prosecutor’s unknowing use of perjury), Napue v.

Illinois, 360 U.S. 264 (1959) (perjury not pertaining to elements

of offense).

interview transcript from that day demonstrates the

Officer and Detective indicated they were not going to

send Messages to anyone but a different adult male.

They did not state they would not view Messages from

other people.” (People v. Gutierrez G052552 Appendix

A p. 20a). However, that finding directly condones

police federal felonious conduct pursuant to 18 U.S.C.

§ 2701(a)(2) (felony to exceed scope of authorization)

and violated the Fourth Amendment. Again, directly

disregarding this Court’s holding “nothing short of

mandatory exclusion of the illegal evidence will

compel respect for the federal law” Lee v. Florida, 392

U.S. at 385-386.

“We agree with the trial court that the

Detective should have included in the affidavit

Gutierrez’s statement on November 20 declining to do

anything other than meet 15-year-old [M.P.]” (People

v. Gutierrez G052552 Appendix A p. 23a).

The Court of Appeals affirmed the trial court

ruling on January 9, 2018. Review was sought with

the California Supreme Court (S247111) and was

denied on April 25, 2018. The Court of Appeals issued

the remittitur April 26, 2018 (G052552).

CONTINUED DILIGENCE

During the appeal, Gutierrez discovered

evidence proving the police requested from Facebook

the attorney-client privileged communications7 with a

third party, whom Gutierrez had filed an internal

affairs complaint on behalf of, because a seven month

7 This was a violation of the “State warrant procedures” (18

U.S.C. § 2703(a)) because “materials protected by the attorneyclient privilege are not subject to disclosure pursuant to a search

warrant, [citations]” People v. Superior Court (Laff)

703, 717 (2001).

pregnant woman was strangled and beaten and the

police subsequent refusal to execute her demand for a

citizen’s arrest in Orange County four months prior to

the perjury ridden warrants being issued. Addition

ally there was proof of retaliation for speech,

fabricated and altered evidence, concealed exculpa

tory documents, and proof that Gutierrez is innocent

of the charges.

A Petition for the Writ of Habeas Corpus was

filed with the Superior Court on April 3, 2018 and was

denied on June 14, 2018.

REINSTATEMENT OF APPEAL

A Petition for the Writ of Habeas Corpus and a

Motion to Recall the Remittitur and Reinstate the

Appeal (i.e., a rehearing) on the Fourth Amendment

issue was filed with the Court of Appeals, based on

this newly discovered evidence and the proof that the

Attorney General had misrepresented the facts and

proof of the police perjury regarding illegal searches,8

but over eight months later was denied on June 13,

2019. On July 23, 2019 the same was filed with the

California Supreme Court, which exercised their

discretion in denying the petition and motion on

February 11, 2020 (Appendix B p. 26a).

Since before the first denial by the California

Supreme Court, Gutierrez has been actively diligent

in establishing a record pertaining to the Fourth

Amendment rights and issues raised in the appeal, so

that this Court may have a record based in fact

supported by documents, not on police perjury.

8 See e.g., In re Martin 58 Cal.2d 133, 138 139 (1962) (reinstate

criminal appeal when result was product of fraud or incomplete

knowledge of all the facts.)

Numerous issues were raised in the Petition for

the Writ of Habeas Corpus,9 however the issue raised

on appeal and the Motion to Reinstate the Appeal

specifically pertained to illegal searches of e-mail in

violation of the Fourth Amendment and thus, this

Petition shall be directed at this specific issue only.

LEGAL ARGUMENT

Almost a century later, the prediction of Mr.

Justice Brandeis is brought before this Court.

“The progress of science in furnishing the

Government with means of espionage is not

likely to stop with wire-tapping. Ways may some

day be developed by which the Government,

without removing papers from secret drawers,

can reproduce them in court, and by which it will

be enabled to expose to a jury the most intimate

occurrences of the home. ... ‘That places the

liberty of every man in the hands of every petty

officer’ was said by James Otis of much lesser

intrusions than these. To Lord Camden, a far

slighter intrusions seemed ‘subversive of all the

comforts of society.’ Can it be that the Consti

tution affords no protection against such

invasions of individual security?” [Footnotes

omitted.] Olmstead v. United States, 277 U.S.

438, 474 (1928) (Brandeis, J., dissenting).

This Court’s recent question in Carpenter v.

United States, 138 S.Ct. 2206, 2222 (2018), is now

before the Court to be answered.

“[L]eaving open the question whether the

warrant requirement applies ‘when the

9 See Habeas Corpus Prayer, Appendix F p. 49a53a.

Government obtains the modern-day equival

ents of an individual’s own ‘papers’ or ‘effects,’

even when those papers or effects are held by a

third party.’ ... If the third-party doctrine does

not apply to the ‘modern-day equivalents of an

individual's own ‘papers’ or ‘effects,” then the

clear implication is that the documents should

receive full Fourth Amendment protection.”

FOURTH AMENDMENT:

ELECTRONIC SURVEILLANCE;

STORED COMMUNICATIONS ACT

“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 affir

mation, and particularly describing the place to

be searched, and the persons or things to be

seized.” Fourth Amendment

REASONABLE EXPECTATION OF PRIVACY

The initial aspect to be addressed by this Court

is if a party to an illegally searched and seized

communication has the right to object under the

Fourth Amendment. The Court of Appeals concluded

that Gutierrez could not object to his private

conversations that were illegally searched (Appendix

Ap. 12a).

A party to a conversation that was illegally

electronically surveilled without a warrant has the

right to object to the government’s use of this

evidence, because the parties to an electronic com

munication have long since been protected by the

Fourth Amendment, cf. Alderman v. United States,

394 U.S. 165, 171 (1968) citing Silverman v. United

States, 365 U.S. 505 (1961) and Katz v. United States,

389 U.S. 347, 357 (1967).

“The rule is stated in Jones v. United States,

362 U.S. 257, 362 U.S. 261 (I960);[^f] In order to

qualify as a ‘person aggrieved by an unlawful search

and seizure,’ one must have been a victim of a search

or seizure, one against whom the search was

directed...” Alderman v. United States,

173.10

The facts of this case, coupled with an Act of

Congress, expressly granted Gutierrez the right to

object to the Fourth Amendment violation pursuant

to Katz, Jones and Alderman, because the warrant

less searches were clearly directed at Gutierrez, as his

communications with M.P. were illegally read,

. reported on and misused against him.

In Rakas v. Illinois, 439 U.S. 128, 148 (1978)

this Court expressly acknowledged that those

petitioners did not have an expectation of privacy in

the area searched. Then clearly distinguished Rakas

from the aforementioned precedent, “Jones v. United

States, 362 U.S. 257 (i960) and Katzv. United States,

389 U.S. 347 (1967), involved significantly different

factual circumstances.... Katz and Jones could

legitimately expect privacy in the areas which were

the subject of the search and seizure each sought to

contest.” Rakas v. Illinois, 439 U.S. at 149. Because

“the Court in Katz held that capacity to claim the

protection of the Fourth Amendment depends not

upon a property right in the invaded place but upon

10 Compare, Goldstein v. United States, 316 U.S. 114 (1942) held

that the federal wiretapping statute should not be interpreted as

forbidding the use of wire tap evidence against a person not a

party to the conversation.

whether the person who claims the protection of the

Amendment has a legitimate expectation of privacy in

the invaded place. [Katz] 389 U. S., at 353” Rakas v.

Illinois, 439 U.S. at 143. The Rakas Court refocused

the legal argument away from one of standing in favor

of a reasonable expectation of privacy (ibid).

Consistent with the Rakas Court approach,

Congress expressly created an expectation of privacy

for the parties to an e-mail transmission, in the

private email sent on Facebook’s servers.

“[Ijn order to claim the protection of the Fourth

Amendment, a defendant must demonstrate

that he personally has an expectation of privacy

in the place searched, and that his expectation is

reasonable; i.e., one that has ‘a source outside of

the Fourth Amendment, either by reference to

concepts of real or personal property law or to

understandings that are recognized and

permitted by society.’” Minnesota v. Carter, 525

U.S. 83, 88 (1998) (quoting Rakas v. Illinois, 439

U.S. at 143-144, and 163 n. 12).

The Stored Communications Act (SCA) 18

U.S.C. § 2701 et. seq., as Title II of the Electronic

Communications Privacy Act (ECPA)11 provides

Fourth Amendment protection for sent e-mails12 as

“recognized and permitted by society” through Cong

ress, (Rakas v. Illinois,

of the Act clearly imparts an intention of privacy for

electronic communications. The Attorney General

11 For an excellent discussion regarding the complexities of the

SCA made very simple, please see Microsoft v. United States.

829 F.3d 197, 205-208, 211 213, 216-220 (2™* Cir. 2016).

12 See Facebook, Inc. v. Superior Court (Hunter),

1262-1270 (2018) (SCA applies to Facebook).

absolutely agrees with this position, yet argued to the

Court of Appeals that Gutierrez does not retain the

same protection that the Attorney General claimed in

their own e-mails sent to Gutierrez’s attorney.

From the Attorney’s General sent e-mail:

“CONFIDENTIALITY NOTICE: This communi

cation with its contents may contain confidential

and/or privileged information. It is solely for the

use of the intended recipient(s). Unauthorized

interception, review, use or disclosure is pro

hibited and may violate applicable laws,

including the Electronic Communications Pri

vacy Act. If you are not the intended recipient,

please contact the sender and destroy all copies

of the communication.” [Emphasis added.]

(Appendix H p. 7Isa)

The Court of Appeals ruled in Gutierrez’s

appeal that the Stored Communication Act protects

only the service provider. “Second, he contends the

SCA creates an expectation of privacy in stored

electronic messages. The SCA applies to service

providers of stored electronic communications and not

to individuals who receive such stored electronic

communications.” (People v. Gutierrez G052552

Appendix A p. 15a). However, the legislative intent

shows the opposite.

“But most important, if Congress does not act to

protect the privacy of our citizens, we may see

the gradual erosion of a precious right. Privacy

cannot be left to depend solely on physical

protection, or it will gradually erode as

technology advances. Additional legal protection

is necessary to ensure the continued vitality of

the Fourth Amendment.” [Emphasis added.]

House of Representatives Report 99-647 (1986)

p. 19 (hereafter “H.R. 99-647”)

“Any discussion of the application of current

law governing interception of e-mail or the use of

e-mail surveillance begins with the Fourth Amend

ment, which protects our reasonable expectation of

privacy. ” [Emphasis added.] (H.R. 99-647 p. 22)

“It appears likely, however, that the courts

would find that the parties to an e-mail transmission

have a ‘reasonable expectation ofprivacy and that a

warrant ofsome kind is required. ” [Emphasis added.]

(Ibid.)

The trial court, when denying Gutierrez’s right

to an evidentiary hearing, stated that when the “send

button is pushed”, the expectation of privacy is lost

(Appendix D pp. 42a-43a).

That interpretation

disregards an Act of Congress, for the Stored

Communications Act only begins, once the “send

button is pushed”. The parties to that electronic

communication have an expectation of privacy

protected by an Act of Congress. When one speaks

into a phone, one does not lose the expectation of

privacy. To declare clicking send loses the expectation

of privacy is to revert back to Olmstead v. United

States, which was overruled by Katz v. United States,

389 U.S. at 353 (rejecting a new exception to the

warrant requirement for electronic surveillance, (id.

at 358)).

See also Quon v. Arch Wireless Operating Co.,

Inc., 529 F.3d 892 (9th Cir. 2008) (finding an

expectation of privacy in electronic communications

was violated by the service provider that divulged the

communications. “Nevertheless, the OPD [Ontario

Police

Department]

surreptitiously

reviewed

messages that all parties reasonably believed were

free from third-party review. As a matter of law,

Trujillo, Florio, and Jerilyn Quon had a reasonable

expectation that the Department would not review

their messages absent consent from either a sender or

recipient of the text messages.” [Emphasis added] id.

at 906).13

Furthermore, this Court acknowledged in City

of Ontario v. Quon, 130 S.Ct. at 2629-2630, that there

was a factual dispute in the record, but assumed the

facts in favor of constitutional protection and then

applied the work place exception to the warrant

requirement, thus finding that an expectation of

privacy was recognized and that a warrant was

required.

See also United States v. Warshak, 631 F.3d

266, 288 (6th Cir. 2010) (“Accordingly, we hold that a

subscriber enjoys a reasonable expectation of privacy

in the contents of emails ‘that are stored with, or sent

or received through, a commercial ISP [Internet

Service Provider].’ Warshak I, 490 F.3d at 473! ... The

government may not compel a commercial ISP to turn

over the contents of a subscriber’s emails without first

obtaining a warrant based on probable cause.

Therefore, because they did not obtain a warrant, the

government agents violated the Fourth Amendment

when they obtained the contents of Warshak’s

emails.” [Emphasis added.])

Congress was express in its intention to afford

all parties to an e-mail transmission a reasonable

expectation of privacy,

To further ensure said

protection and expectation of privacy, Congress made

it a serious criminal offense to breach the communi13 Overruled on other non-SC A grounds in City of Ontario v.

Quon 130 S.Ct. 2619, 2627 (2010).

cations without warrant or consent. See 18 U.S.C. §§

270l(a)(l);(2), felonies punishable pursuant to 18

U.S.C. § 2701(b)(1)(B) up to “10 years” per violation if

done “in furtherance of any criminal.. act in violation

of the Constitution or laws of the United States or any

State.”

“The security of persons and property remains

a fundamental value which law enforcement officers

must respect. Nor should those who flout the rules

escape unscathed. In this respect we are mindful that

there is now a comprehensive statute making

unauthorized electronic surveillance a serious crime.”

[Footnote omitted.] Alderman v. United States,

U.S. at 175.

The parties demonstrated their expectation of

privacy in the messages sent and received by choosing

to use Facebook’s private messaging system instead of

the public messaging system.

Congress spoke with due authority as the great

voice of society as the “source outside the Fourth

Amendment, either by reference to concepts of real or

personal property law or to understandings that are

recognized and permitted by society” (Rakas v.

Illinois, 439 U.S. at 163 n. 12) when it declared that

society has a reasonable expectation of privacy in

email and took substantial steps to ensure our privacy

by enacting criminal sanctions and requiring a

warrant to access content.

WARRANTLESS SEARCHES

Prior to 12/1/12 (date of arrest) no warrants

were used to review the private e-mail messages on

Facebook’s servers.

This Court “has never sustained a search upon

the sole ground that officers reasonably expected to

find evidence of a particular crime and voluntarily

confined their activities to the least intrusive means

consistent with that end.” Katz v. United States, 389

U.S. at 356-357.

‘“The Amendment guarantees the privacy,

dignity, and security of persons against certain

arbitrary and invasive acts by officers of the

Government,’ without regard to whether the

government actor is investigating crime or performing

another function. Skinner v. Railway Labor

Executives’ Assn., 489 U.S. 602, 613-614 (1989).” City

of Ontario v. Quon, 130 S.Ct. at 2628-2629.

In the present case there was no probable cause

to search Gutierrez and M.P.’s messages on Facebook.

The police were illegally engaged in a fishing

expedition, and only after feloniously reading

attorney-client privilege pertaining to the affiant, did

Gutierrez become the target.

EXCEPTIONS TO WARRANTLESS SEARCHES

“In the absence of a' warrant, a search is

reasonable only if it falls within a specific exception to

the warrant requirement.” Riley v. California, 134

S.Ct. 2473, 2482 (2014).

The evidence unambiguously proves that no

consent was ever granted prior to 10/30/12, confirmed

in the audio recordings and the police reports. The IP

address history from M.P.’s Facebook account proves

the police had accessed her Facebook account from the

police station prior to 10/30/12 and surreptitiously

reviewed the private Facebook messages stored on

Facebook’s servers. This was a federal felony

pursuant to 18 U.S.C. § 2701(a)(1).

“That said, where the facts indisputably

present a case of an individual logging onto another’s

e-mail account without permission and reviewing the

material therein, a summary judgment finding of an

SCA violation is appropriate. See Wyatt Tech. Corp.

v. Smithson, No. 05-1309, 2006 WL 5668246, **9-10

(C.D.Cal.2006). n.2” Cardinal Health Inc., v. Adams

582 F Supp 2d 967, A (U.S. Dist. Ct. M.D. Tenn. 2008).

Regarding searches after 10/30/12, the Court of

Appeals found that law enforcement “did not state

they would not view Messages from other people”

(People v. Gutierrez G052552 Appendix A p. 20a) after

acknowledging the scope of consent was only for Steve

Ross’ messages. This reasoning directly condones

federal felony searches in violation of 18 U.S.C. §

2701(a)(2) (felony to exceed scope of authorization).

There was no consent given by M.P. after

11/6/12 to use her Facebook account for any purpose.

“On November 6, 2012, the Detective interviewed

M.P. again. [M.P.] denied police further access to her

Facebook account.” (People v. Gutierrez G052552

Appendix A p. 6a). The Court of Appeals went on to

speculate that M.P. might have consented away from

the audio recording, shifted the burden of proof14 to

Gutierrez (Appendix A pp. 20a-21a), but then denied

him the right to an evidentiary hearing.

However, on 11/13/12, M.P. once again reiter

ated her refusal to allow the continued use of her

account. In an angry tone of voice, M.P. begins the

11/13/12 interview by declaring, “So I am kinda

curious how we had a talk about you weren’t gonna

use my Facebook and then you turn around and use

my Facebook!” (Appendix H p. 72sa) The police

disregarded her and continued to commit federal

14 See Badillo v. Superior Court 46 Cal. 2d 269, 272 (1956) (the

burden of establishing consent is on the State).

felonies and warrantless searches of email and the

home, by warrantlessly sending electronic messages

into Gutierrez’s home.

Independently and collectively, each of the

three above referenced stages renders all searches

illegal and use of the evidence after each point as fruit

of the poisonous tree cf. Wong Sun v. United States,

371 U.S. 471 (1963) because of this Court’s holding

“nothing short of mandatory exclusion of the illegal

evidence will compel respect for the federal law” Lee

v. Florida, 392 U.S. at 385-386.

CONGRESS DID NOT PERMIT CONSENT

TO SEARCHES OF CONTENT OF

ELECTRONIC COMMUNICATIONS

Congress did not provide an exception to

governmental access to the contents of e-mail via

consent under 18 U.S.C. § 2703. Rather, Congress

mandated the only procedure for access to content of

an electronic communication by a governmental

entity was via a warrant.

18 U.S.C. §2703(a): “Contents of Wire or

Electronic Communications in Electronic

Storage.— A governmental entity may require

the disclosure by a provider of electronic

communication service of the contents of a wire

or electronic communication, that is in electronic

storage in an electronic communications system

for one hundred and eighty days or less, only

pursuant to a warrant issued using the proce

dures described in the Federal Rules of Criminal

Procedure (or, in the case of a State court, issued

using State warrant procedures) by a court of

competent jurisdiction. ...” [Emphasis added.]

“Proposed section 2703 contains the procedural

requirements for the government to obtain access to

electronic communications in storage and trans

actional records relating thereto. Proposed section

2703 contains four subsections. ”(H.R. 99-647 p. 67)

“Subsection (a) sets forth the requirements

which must be met before the government may obtain

access to the contents of a non-voice wire communi

cation or an electronic communication in storage. As

a general rule the government must obtain a search

warrant.” [Emphasis added.] (H.R. 99-647 p. 67)

“The Committee required the government to

obtain a search warrant because it concluded that the

contents ofa message in storage were protected by the

Fourth Amendment.” (H.R. 99-647 p. 68)

“The SCA has already provided the owners of the

electronic communications at issue the highest

protection available under the Fourth Amendment,

the requirement that the government obtain a

warrant based on probable cause.” In Matter of US,

665 F Supp 2d 1210 (D. Or. 2009).

“Section 2703(a) of the SCA details the

procedures law enforcement must follow to access the

contents of stored electronic communications,” Konop

v. Hawaiian Airlines, Inc., 302 F.3d 868, 879 (9th Cir.

2002). The language of 18 U.S.C. § 2703(a) mandates

“the contents” of an “electronic communication” may

be obtained “only pursuant to a warrant” by a

“governmental entity”.

Under 18 U.S.C. § 2703, there is no exception

for consent, by either the user or sender regarding

searching for content by the government.

There is an exception to the criminal sanction

when authorized by the sender or receiver 18 U.S.C. §

2701(c)(2) (“by a user of that service with respect to a

communication of or intended for that user”). See also

Konop v. Hawaiian Airlines, Inc., 302 F.3d at 880,

“Nevertheless, the plain language of § 2701(c)(2)

indicates that only a ‘user’ of the service can authorize

a third party’s access to the communication. The

statute defines ‘user’ as one who l) uses the service

and 2) is duly authorized to do so.” See also Facebook

Inc. v. Superior Court (Hunter), 4 Cal.5th at 12691271.

There is also an exception for criminal sanc

tions if a warrant is used, 18 U.S.C. § 2701(c)(3) (“in

section 2703, 2704 or 2518 of this title.”)

As well as an exception on the prohibitions for

disclosure by the service provider regarding content if

authorized by the sender or receiver, 18 U.S.C.

§2702(b)(3) (“with the lawful consent of the originator

or an addressee or intended recipient of such

communication, or the subscriber in the case of

remote computing service”).

“That is significant because Congress generally

acts intentionally when it uses particular

language in one section of a statute but omits it

in another. Russello v. United States, 464 U.S.

16, 23 (1983)[].[1] The interpretive canon that

Congress acts intentionally when it omits

language included elsewhere applies with

particular force here....” Department of Home

land Security v. MacLean, 135 S.Ct. 913, 919

(2015).

In overturning a conviction that violated the

Communications Act, this Court stated: “[Mleaning

must be given to what Congress has written, even if

not in explicit language, so as to effectuate the policy

which Congress has formulated.” Nardone v. United

States, 308 U.S. 338, 340 (1939).

Congress mandated that the access to content

information was only through a lawful warrant if the

content is stored on a commercial ISP. The reason for

doing so was because consent is easy to claim and

hard to disprove, especially when the government is

committing perjury and the courts deny due process

of law.

As stated in Riley v. California, 134 S.Ct. at

2489 and United States v. Warshak, 631 F.3d at 284,

the sheer volume of electronic information available

through our digital lives is beyond the normal scope

of a traditional search and thus a warrant is required

to avoid “bypassing a neutral predetermination of the

scope of a search [and] leaves individuals secure from

Fourth Amendment violations ‘only in the discretion

of the police.’ [Beck v. Ohio, 379 U.S. 89,] 97 [(1964)]”

Katz v. United States, 389 U.S. at 358-359.

Congress expressly provided that govern

mental access to the content of an electronic comm

unication has but one means, that is, via a lawful

warrant served on a service provider,

“Rules

governing compelled disclosure by a service provider

to a governmental entity: Section 2703 [|] As alluded

to above, section 2703 governs compelled disclosure by

covered providers to a ‘governmental entity.’ It sets

forth the rules under which law enforcement entities

may compel ECS and RCS providers to disclose

private as well as public communications made by

users and stored by covered service providers.”

[Footnote omitted.] Facebook, Inc. v. Superior Court

(Hunter), 4 Cal.5th at 1266. “Moreover, to the extent

that the SCA purports to permit the government to

obtain such emails warrantlessly, the SCA is

unconstitutional.” United States v. Warshak, 631

F.3d at 288.

Thus, Congress has declared that consent is only

a defense to violations of 18 U.S.C. § 270l(a)(l);(2),

but has mandated that a warrant must be obtained

before the government may lawfully search content of

e-mail stored on a commercial internet service

provider’s servers under the Fourth Amendment.

The evidence proves law enforcement viewed and

accessed the Facebook servers without a warrant

prior to 12/1/12, in violation of the Fourth Amendment

(Lee v. Florida, Katz and Alderman).

MILLER IS INAPPLICABLE TO THE SCA

The Third Party Doctrine resulting from this

Court’s decision in Miller v. United States, 425 U.S.

435 (1976) was expressly made not applicable to the

SCA by Congress.

After directly discussing Miller (at H.R. 99-647

pp. 72-73) Congress went on to say:

“These cases were studied extensively by the

United States Privacy Protection Study

Commission and by the Congress. ... That

statute in overruling Miller requires federal

government agencies to use legal process to

obtain bank records... [^1 Moreover, the

legislation, like the Right to Financial Privacy

Act, requires the government to obtain records

only through a court order or legal process with

an opportunity to the subscriber to appear and

contest the disclosure of the information, [f]

This Committee is convinced that the subscri

bers and customers ofremote computing services

should be afforded a level of confidence that the

contents of records maintained on their behalf

for the purpose of providing remote computing

services will not be disclosed or obtained by the

government, unless certain exceptions apply or

if the government has used appropriate legal

process with the subscribers or customers being

given an opportunity to protect their rights”

[Emphasis added.] (H.R. 99-647 p. 73)

The Court of Appeals disregarded this Act of

Congress. “The Supreme Court has reasoned that, by

‘revealing his affairs to another,’ an individual ‘takes

the risk . . . the information will be conveyed by that

person to the Government.’ (United States v. Miller

(1976) 425 U.S. 435, 443.)” (People v. Gutierrez

G052552 Appendix A p. 13a). Yet, M.P. did not

“reveal” information to law enforcement, and

furthermore the Court of Appeals directly defied the

Congressional intent in enacting the SCA, as Miller is

expressly inapplicable.

“Just because you entrust your data—in some

cases, your modern-day papers and effects—to a

. third party may not mean you lose any Fourth

Amendment interest in its contents. Whatever

may be left of Smith and Miller, few doubt that

e-mail should be treated much like the

traditional mail it has largely supplanted— as a

bailment in which the owner retains a vital and

protected legal interest.” Carpenter v. United

States, 138 S.Ct. at 2269, (Gorsuch, J.,

dissenting).

Miller and Smith v. Maryland, 442 U.S. 735

(1979) were decided before email was invented and

are simply “ill suited to the digital age.” United States

v. Jones, 565 U.S. 400, 417 (2012), (Sotomayor, J.,

concurring opinion). Which is why this Court should

acknowledge the intent of Congress and hold the

Third Party Doctrine inapplicable to the SCA.

SUPPRESSION

As the searches were without consent and

warrantless, and were in fact federal felonies,

suppression is mandated. There is no good faith

exception available to law enforcement when they

willfully committed federal felonies and concealed

their criminal conduct and constitutional violations

with perjury. Suppression is mandated when the

police demonstrate “reckless disregard of constitu

tional requirements” Herring v. United States, 129

S.Ct. 695, 704 (2009).

‘“No man in this country is so high that he is

above the law. No officer of the law may set that law

at defiance with impunity. All the officers of the

government, from the highest to the lowest, are

creatures of the law, and are bound to obey it.’ United

States v. Lee, 106 U.S., at 220.” Butz v. Economou,

438 U.S. at 507.

Congress mandated that suppression be the

remedy for constitutional violations, see 18 U.S.C. §

2708.

“Proposed section 2708 provides that the

remedies and sanctions described in this chapter are

the only judicial remedies and sanctions for

nonconstitutional violations of this chapter. See

discussion of section 101(e) of the bill, supra.” (H.R.

99-647 p. 75)

The section referenced is^

“[lOl] Subsection (e) ... In the event that there

is a violation of law of a constitutional

magnitude the court involved in a subsequent

criminal trial will apply the existing

constitutional law with respect to the

exclusionary rule. Mapp v. Ohio, 367 U.S. 643,

652 (1961)', Massachusetts v. Shepperd, 104

S.Ct. 3424 (1984); United States v. Leon, 104

S.Ct. 3405 (1984).” [Emphasis added.] (H.R. 99647 p. 48)

Twice, suppression has been ordered regarding

e-mail, one expressly involved the SCA and a violation

of the Fourth Amendment by the service provider

giving information to the government that was not in

the warrant (see United States v. Maxwell 45 M.J.

406 (C.A.A.F. 1996)), and the second only addressed

the Fourth Amendment (see United States v. Long,

No. 05‘5002/MC (2006)). While both were military

court decisions, they both applied civilian case law

from the Supreme Court of the United States as well

as the Constitution of the United States.

“To forbid the direct use of methods thus

characterized but to put no curb on their full

indirect use would only invite the very methods

deemed ‘inconsistent with ethical standards and

destructive of personal liberty.’ What was said in

a different context in Silverthorne Lumber Co. v.

United States, 251 U.S. 385, 392, is pertinent

here^ ‘The essence of a provision forbidding the

acquisition of evidence in a certain way is that

not merely evidence so acquired shall not be used

before the court, but that it shall not be used at

all.’... A decent respect for the policy of Congress

must save us from imputing to it a self-defeating,

if not disingenuous purpose.” Nardone v. United

States, 308 U.S. at 340-341.

Suppression is mandated pursuant to a ruling

directly on point by the Supreme Court of the United

States^

“A State could not adopt rules of evidence

calculated to permit the invasion of rights

protected by federal organic law. In the present

case, the federal law itself explicitly protects

intercepted communications from divulgence, in

a court or any other place....[f]... Under our

Constitution no court, state or federal, may serve

as an accomplice in the willful transgression of

‘the Laws of the United States,’ laws by which

‘the Judges in every State are bound . . .

[Brackets in original omitted.] Lee v. Florida,

392 U.S. at 385‘386 (quoting Elkins v. United

States, 364 U.S. 206, 222 (i960)).

“Finally, our decision today is counseled by

experience. The hope was expressed in Schwartz

v. Texas that ‘[enforcement of the statutory

prohibition in § 605 can be achieved under the

penal provisions’, of the Communications Act.

344 U.S., at 201. That has proved to be a vain

hope. Research has failed to uncover a single

reported prosecution of a law enforcement officer

for violation of § 605 since the statute was

enacted. We conclude, as we concluded in Elkins

and in Mapp, that nothing short of mandatory

exclusion of the illegal evidence will compel

respect for the federal law ‘in the only effectively

available way—by removing the incentive to

disregard it.’ Elkins v. United States, 364 U.S.,

at 217.tif] Reversed.” [Emphasis added.] Lee v.

Florida, 392 U.S. at 386-387.

These apostate law men demonstrated a con

sciousness of guilt by lying about when the searches

began in the affidavits and lying about the denials of

consent, all done to conceal their federal felony

conduct to effectuate retaliation for First Amendment

advocacy. Suppression of all evidence, tangible and

intangible must be ordered.

CONCLUSION

Is it permissible for the government to violate

the rights of citizens and disregard an Act of Congress

and read our e-mails with impunity from federal law

and the Constitution of the United States?

The late Chief Justice sided with privacy

concerning electronic surveillance, and its union with

the First Amendment. “No longer is it possible, in

short, for each man to retreat into his home and be

left alone.” Bartnicki v. Vopper, 532 U.S. 514, 543

(2001) (dissenting opinion of Rehnquist, C.J., Scalia,

J., and Thomas, J., joined)

“Technology now permits millions of important

and confidential conversations to occur through

a vast system of electronic networks. These

advances, however, raise significant privacy

concerns. We are placed in the uncomfortable

position of not knowing who might have access

to our personal and business e-mails,” (id. at

542).

The initial speech that caused Sorensen to

focus all efforts on Gutierrez, was due to the fact that

in response to M.P.’s request for legal advice,

Gutierrez advised legal action be taken against the

affiant Sorensen for the federal felonies committed on

M.P. by Sorensen.15 And the subsequent motivation

15 See e.g., “A public employee might, for instance, use the courts

to pursue personal vendettas or to harass members of the

general public. That behavior could cause a serious breakdown

by police to gain access to the attorney-client privi

leged communications with the internal affair’s

complainant.

Law enforcement acted with criminal intent

and consciousness of guilt of their felony conduct

because they concealed their acts with perjury to

deceive the courts but then claimed that Gutierrez

acted with criminal intent “[blecause a state of mind

is ‘easy to allege and hard to disprove,’ Crawford-El,

523 U. S., at 585,” Nieves v. Bartlett, 587 U.S. 1715,

1725 (2019). All done to retaliate against a member of

“the criminal defense bar, which has the professional

mission to challenge actions of the State.” Gentile v.

State Bar of Nevada, 501 U.S. 1030, 1051 (1991).

The holding in Lee v. Florida needs to be

applied to the SCA so that society can remain secure

in their electronic communications, to ensure the free

flow of ideas in this digital age, without fear of

retaliation by the government, cf. Hartman v. Moore,

547 U.S. 250, 256 (2006)16; Speiser v. Randall, 357

U.S. at 53517; Menna v. New York, 423 U.S. 61, 62-63

(1975) (per curiam).18

in public confidence in the government and its employees.”

Borough ofDuryea, Pa. v. Guarnieri, 131 S. Ct. 2488, 2496 (2011)

16 “[T]he law is settled that as a general matter the First

Amendment prohibits government officials from subjecting an

individual to retaliatory actions, including criminal prosecutions, for speaking out”.

17 “If the aim is to apprehend those who have lifted a hand

against the Government, the procedure is unconstitutional.”

18 “Where the State is precluded by the United States Consti

tution from haling a defendant into court on a charge, federal

law requires that a conviction on that charge be set aside even if

the conviction was entered pursuant to a counseled plea of guilty.

Blackledge v. Perry, 417 U.S. 21, 30 (1974).”

“The freedom of individuals verbally to oppose

or challenge police action without thereby risking

arrest is one of the principal characteristics by which

we distinguish a free nation from a police state.”

Houston v. Hill, 482 U.S. 451, 463 (1987). Because

“[t]here is no question that speech critical of the

exercise of the State’s power lies at the very center of

the First Amendment.” Gentile v. State Bar of Nev

ada, 501 U.S. at 1034.

“Can it be that the Constitution affords no

protection against such invasions of individual

security?” Olmstead v. United States, 277 U.S. at 474

(Brandeis, J., dissenting).

Our e-mails need constitutional protection and

this case demonstrates the danger of leaving society

unprotected in a digital age.

The present case answers this Court’s recent

question “whether the warrant requirement applies”

(Carpenter v. United States, 138 S.Ct. at 2222) in the

affirmative, because Congress has declared it does.

The Court should grant review to declare this

important Fourth Amendment protection for all, and

to give guidance to legitimate law enforcement offi

cers as to how to conduct lawful investigations.

Respectfully submitted,

ARTURO FERNANDO SHAW GUTIERREZ

Pro se

603 Golden West Ave.

Ojai, CA 93023

(805) 535-9539

May 12, 2020

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.