Petition for Writ of Certiorari — Charles D. Tuttoilmondo, Jr., Petitioner v. Texas

NO. ___________________

IN THE SUPREME COURT OF THE UNITED STATES

CHARLES D. TUTTOILMONDO JR.,

PETITIONER

vs.

STATE OF TEXAS,

RESPONDENT

ON PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF CRIMINAL APPEALS

PETITION FOR WRIT OF CERTIORARI

Oscar O. Peña Law, PLLC

1720 Matamoros St., Laredo, Tx. 78040

P.O. Box 1324, Laredo, Tx. 78042

Telephone: (956) 722-5167

Fax: (956) 722-5186

By:

/s/ Oscar O. Peña______________

Oscar O. Peña, J.D.

Texas State Bar Number: 90001479

oscar@oscarpenalaw.com

Atty. for Charles D. Tuttoilmondo Jr.

QUESTION PRESENTED

Does Texas’ use of commercial motor vehicle inspectors combined with a

roving drug interdiction task force unconstitutionally and unreasonably abuse

the doctrinal gap between the “special needs” exception to Brignoni-Ponce’s

roving patrol doctrine and City of Indianapolis v Edmond’s restrictions on

programmatic purpose for checkpoints?

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LIST OF PARTIES

Petitioner is Charles D. Tuttoilmondo. Tuttoilmondo was the Appellant

below in the Fourth Court of Appeals.

Petitioner Charles D. Tuttoilmondo Jr. is represented by Attorney Oscar

O. Peña who was appointed to represent him on appeal by the 49th District

Court, Zapata County, Texas.

Petitioner was represented at trial by Attorney Jesus Dominguez.

Respondent is the State of Texas. The State of Texas was the Appellee

below in the Fourth Court of Appeals of Texas and the Texas Court of

Criminal Appeals.

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

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TABLE OF CONTENTS

Page

Opinion Below……………………………………..

1

Jurisdiction………………………………………….

1

Constitutional Provisions Involved…..……………..

1

Statement of the Case……………………………….

2

Reasons for Granting the Writ……………………….

4

Conclusion………………………………………….

12

Index of Appendices

Appendix A: Notice of Denial of Discretionary Review……………..14

Appendix B: Memorandum Opinion of Fourth Court of Appeals…...15

TABLE OF AUTHORITIES CITED

Page

Federal Statutory Provision

28 U.S.C. Section 1257

1

Texas Statutory Provisions

Art. 481.121 Tex. Health and Safety Code

iii

2

Texas Rules

Texas Rules of Evidence, Rule 103(e)

5,6

Texas Rules of Appellate Procedure 66.1

5,6

Texas Rules of Appellate Procedure 66.3

5,6

Case Law

Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct.

1727, 18 L.Ed.2d 930 (1967)

City of Indianapolis v. Edmond, 531 U.S. 32, 121 S.Ct.

447, 148 L.Ed.2d 333 (2000)

Delaware v. Prouse, 440 U.S. 648, S.Ct. 1391, L.Ed.2d

660 (1979)

Donovan v. Dewey, 452 U.S. 594, 101 S.Ct. 2534

(1981)

Lujan v State, 331 S.W.3d 768 (Tex. Crim. App. 2011)

9

3,4,10,12

3,4,9,11

8,9

11

Marin v State, 851 S.W.2d 275 (Tex.Crim.App. 1993)

6,7

Marshall v. Barlow's, Inc., 436 U.S., at 307, 98 S.Ct.

1816 (1978)

New York v. Burger, 482 U.S. 691, 107 S. Ct. 2636, 96

L. Ed. 2d 601 (1987)

Sanchez v. State, 120 S.W.3d 359 (Tex.Crim.App.,2003)

9

United States v. Brignoni-Ponce, 422 U.S. 873, 95 S. Ct.

2574, 45 L. Ed. 2d 607 (1975)

iv

6,8,11

6

3, 4, 5, 7, 9, 10, 12

NO. ___________________

IN THE SUPREME COURT OF THE UNITED STATES

CHARLES D. TUTTOILMONDO JR.,

PETITIONER

vs.

STATE OF TEXAS,

RESPONDENT

ON PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF CRIMINAL APPEALS

PETITION FOR WRIT OF CERTIORARI

Petitioner, Charles D. Tuttoilmondo Jr., respectfully requests that a writ

of certiorari issue to review the judgment of the Fourth Court of Appeals of

Texas and the Texas Court of Criminal Appeals’ denial of discretionary review

in this case.

OPINION BELOW

Charles D. Tuttoilmondo Jr. filed a Petition for Discretionary Review in

the Texas Court of Criminal Appeals located in Austin, Texas. His request for

discretionary review was denied without an opinion. The denial appears at

Appendix A of this petition.

Tuttoilmondo sought review of the unpublished opinion denying relief

issued by the Texas Fourth Court of Appeals in San Antonio, Texas, (COA

No. 04-17-00375-CR). The unpublished memorandum opinion appears at

Appendix B of this petition.

JURISDICTION

The Texas Court of Criminal Appeals denied Petitioner discretionary

review on April 3, 2019 (PD-0007-19). No Petition for Rehearing was filed.

The deadline for filing this Petition for Writ of Certiorari is July 2, 2019.

This Petition is timely filed.

The jurisdiction of this Court is invoked under 28 U.S.C. Section 1257.

It is a final judgment rendered by the highest court of the State of Texas and

Petitioner is invoking a right claimed under the Fourth Amendment, United

States Constitution.

CONSTITUTIONAL PROVISION INVOLVED

The Fourth Amendment to the United States Constitution provides:

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“The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation,

and particularly describing the place to be searched,

and the persons or things to be seized.”

STATEMENT OF THE CASE

At issue is a drug interdiction task force’s programmatic use of multiple

commercial motor vehicle inspectors to stop and detain commercial motor

vehicles at will and then to use the opportunity created by the commercial

inspection (normal duration can exceed an hour) for the drug interdiction task

force to develop probable cause. The combined use of commercial inspection

and drug interdiction was not factually contested—it was the State’s sole

justification for the stop and initial detention that led to the discovery of

marijuana in the commercial vehicle driven by the Petitioner on December 12,

2012.

Following the discovery of the contraband, Petitioner was arrested and he

confessed orally and in writing.

Petitioner was indicted on May 29, 2013 for one count of Possession of

Marijuana (Felony 2) pursuant to Art. 481.121 Tex. Health and Safety Code.

Tuttoilmondo’s trial counsel urged a motion to suppress the Petitioner’s

written and oral confessions. The written motion contained the following

language:

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1. “The statements made by [Tuttoilmondo] were tainted by the illegal and

unlawful detention and arrest, in violation of [Tuttoilmondo’s]

constitutional rights under the Fifth and Fourteenth Amendments,”

2. “The admission of statements by Charles D. Tuttoilmondo, Jr. is a

violation of [his] rights pursuant to the Fourth, Fifth, Sixth, and

Fourteenth Amendments,”

The motion to suppress was argued. Although the written motion was

broad, trial counsel focused his efforts on attacking the voluntariness of the

confessions and did not specifically argue that the task force’s programmatic

combination of commercial motor vehicle inspection and drug interdiction

constituted an abuse of the administrative exception to roving patrols in U.S. v.

Brignoni-Ponce, 422 U.S. 873, 883, 95 S. Ct. 2574, 2581, 45 L. Ed. 2d 607 (1975).

Trial counsel also did not specifically argue that the task force’s programmatic

purpose violated City of Indianapolis v. Edmond, 531 U.S. 32, 121 S.Ct. 447, 148

L.Ed.2d 333 (2000) and Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 59

L.Ed.2d 660 (1979).

The motion to suppress was denied.

The confessions were admitted at the jury trial.

Tuttoilmondo was convicted and the jury assessed punishment at eight

years to be served in the Texas Department of Corrections, Institutional

Division.

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Petitioner appealed to the Fourth Court of Appeals, San Antonio, Texas.

He challenged the task force’s programmatic policy as unconstitutional and

unreasonable citing U.S. v. Brignoni-Ponce, City of Indianapolis v. Edmond, and

Delaware v. Prouse, and argued that the objection was preserved and in the

alternative that it was reviewable under a novelty exception.

The conviction was affirmed; the Court held that the argument was

procedurally barred. The memorandum opinion (Appendix B) is not designated

for publication; see Tuttoilmondo v State, 04-17-00375-CR (Ct. App. – San

Antonio, December 5, 2018.

Neither party requested a re-hearing.

Instead, Petitioner requested discretionary review from the Texas Court

of Criminal Appeals, Texas’ highest court for criminal cases.

The Texas Court of Criminal Appeals denied discretionary review by

notice, without an opinion.

REASONS FOR GRANTING THE PETITION

Pursuant to Rule 10(c) of the Supreme Court Rules, the Petitioner

contends that the matters presented herein constitute important questions of

federal law that have not been, but should be, settled by the Supreme Court.

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Regarding the procedural default, Petitioner relies on the following:

1. Texas Rules of Evidence, Rule 103(e), which states that a Court may take

notice of fundamental errors affecting a substantial right, even if the

claim of error was not properly preserved;

2. The inherent power of the Texas Court of Criminal Appeals to grant

judicial review at its discretion as described in Texas Rules of Appellate

Procedure 66.1 and 66.3; and

3. The spirit of excusing failure to make a contemporaneous objection

when claim not made was so novel that basis of claim was not

reasonably available at time of trial.

Clarity of Facts Relating to Claim

This case presents clarity of the facts relating to the claim made, i.e. the

programmatic combination of drug interdiction and commercial motor vehicle

inspection. The State presented no other probable cause to justify the stop--the

State relied entirely on the Special Needs exception for commercial motor

vehicle inspections. The record also contains uncontroverted testimony that the

task force’s purpose was drug-interdiction and that it was using commercial

motor vehicle inspectors to stop people.

Consequently, the task force had unfettered power to stop commercial

motor vehicles for criminal interdiction purposes and used it in a way that is

unreasonable and abusive of Brignoni-Ponce’s “special needs” exception to

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roving patrol doctrine; see New York v. Burger, 482 U.S. 691, 702–03, 107 S.

Ct. 2636, 2643–44, 96 L. Ed. 2d 601 (1987).

Procedural Bar

Texas Rules of Evidence, Rule 103(e) allows a Court to take notice of

fundamental errors affecting a substantial right, even if the claim of error was

not properly preserved.

The Texas Court of Criminal Appeals has inherent power to grant

judicial review at its discretion as described in Texas Rules of Appellate

Procedure 66.1 and 66.3.

Lastly, procedural default is excusable because of the novelty of the issue

presented. “The courts of every jurisdiction in this country have some doctrine

that permits appellate courts to consider claims that fundamental rights were

violated without objection. In the criminal law of this state, such errors are

called “fundamental errors.” Before 1993 this Court had recognized more than

a dozen kinds of fundamental error. Sanchez v. State, 120 S.W.3d 359, 365

(Tex.Crim.App.,2003).

Then in 1993 the Texas Court of Criminal Appeals decided Marin v

State,

Marin recognized three categories of rights:

1. absolute requirements and prohibitions;

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2. rights of litigants which must be implemented by the system unless

expressly waived; and

3. rights of litigants which are to be implemented upon request.

Marin held that procedural default only applies to the last category

because those rights are “forfeitable”.

Although, Fourth Amendment law is known to all criminal law

practitioners, its mis-application in this context is difficult to perceive because it

is hidden behind the Brignoni Ponce exception.

Unless and until one recognizes that the task force was attempting to

thread the needle between roving patrols and fixed checkpoints, the facts

strongly suggest that the highway safety “special needs” exception permits the

commercial motor vehicle inspection that led to the detention, search, arrest,

and collection of the confessions from Tuttoilmondo.

Tuttoilmondo also argues that Texas’ Marin framework is utilitarian, but

it does not adequately account for the jurisprudential benefits of allowing novel

arguments to escape procedural bar. Marin does not account for the

circumstances at issue in this case: an uncontroverted record as to the lack of

probable cause for the stop and the programmatic purpose of the task force.

Although the Marin analysis saves resources, the development of jurisprudence

is hindered by its framework.

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Here, the facts are not an issue—the only issue is the application of the

law to the undisputed facts and that the public interests.

The stop and detention were not permissible under the “pervasively

regulated industry” exception to the warrant requirement, as set forth in New

York v. Burger, 482 U.S. 691, 702–03, 107 S. Ct. 2636, 2643–44, 96 L. Ed. 2d

601 (1987). This is often referred to as the “special needs” doctrine. A

warrantless inspection, however, even in the context of a pervasively regulated

business, will be deemed to be reasonable only if three criteria are met; New

York v. Burger, 482 U.S. 691, 702–03, 107 S. Ct. 2636, 2643–44, 96 L. Ed. 2d

601 (1987).

First, there must be a “substantial” government interest that informs the

regulatory scheme pursuant to which the inspection is made. See Donovan v.

Dewey, 452 U.S., at 602, 101 S.Ct., at 2540 (“substantial federal interest in

improving the health and safety conditions in the Nation's underground and

surface mines”); New York v. Burger, 482 U.S. 691, 702–03, 107 S. Ct. 2636,

2643–44, 96 L. Ed. 2d 601 (1987).

Second, the warrantless inspections must be “necessary to further [the]

regulatory scheme.” Donovan v. Dewey, 452 U.S., at 600, 101 S.Ct., at 2539.

Third, “the statute's inspection program, in terms of the certainty and

regularity of its application, [must] provid[e] a constitutionally adequate

substitute for a warrant.” Ibid. In other words, the regulatory statute must

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perform the two basic functions of a warrant: it must advise the owner of the

commercial premises that the search is being made pursuant to the law and has

a properly defined scope, and it must limit the discretion of the inspecting

officers. See Marshall v. Barlow's, Inc., 436 U.S., at 323, 98 S.Ct., at 1826; see

also id., at 332, 98 S.Ct., at 1830 (STEVENS, J., dissenting)

The warrantless inspection conducted in the instant case was not

“necessary to further [the] regulatory scheme;” Donovan v. Dewey, 452 U.S., at

600, 101 S.Ct., at 2539.

Roving Patrol Doctrine

The Supreme Court addressed random roving-patrol stops in United

States v. Brignoni-Ponce, 422 U.S. 873, 877–78, 95 S. Ct. 2574, 2578, 45 L. Ed.

2d 607 (1975) and Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d

660 (1979). The Supreme Court stated that the reasonableness of such seizures

depends on a balance between the public interest and the individual's right to

personal security free from arbitrary interference by law officers. Id., at 20—21,

88 S.Ct., at 1879; Camara v. Municipal Court, 387 U.S. 523, 536—537, 87 S.Ct.

1727, 1734, 18 L.Ed.2d 930 (1967); United States v. Brignoni-Ponce, 422 U.S.

873, 878, 95 S. Ct. 2574, 2578–79, 45 L. Ed. 2d 607 (1975). The court held that:

“[t]o approve roving-patrol stops of all vehicles in the border area, without any

suspicion that a particular vehicle is carrying illegal immigrants, would subject

the residents of these and other areas to potentially unlimited interference with

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their use of the highways, solely at the discretion of Border Patrol officers.”

United States v. Brignoni-Ponce, 422 U.S. 873, 882–83, 95 S. Ct. 2574, 2581, 45

L. Ed. 2d 607 (1975).

However, the Brignoni-Ponce Court specifically addressed and excepted

highway safety issues, like the one at issue in the present case in a footnote:

“[o]ur decision thus does not imply that state and local enforcement agencies

are without power to conduct such limited stops as are necessary to enforce

laws regarding drivers' licenses, vehicle registration, truck weights, and similar

matters.” United States v. Brignoni-Ponce, 422 U.S. 873, 883, 95 S. Ct. 2574,

2581, 45 L. Ed. 2d 607 (1975).

However, the exception mentioned in Brignoni-Ponce does not apply to

this case because the purpose of the task force was interdiction of

contraband—not highway safety.

The instant case involves a programmatic purpose—the use of a task

force for the interdiction of contraband, and the use of CVI certified peace

officers (composing half of the team) to conduct the functional equivalent of

unconstitutional roving-patrols. Tuttoilmondo concedes that pretext stops are

legal and that the subjective intent of the detaining officer is not subject to

analysis. However, the subjective intent of a program IS subject to scrutiny

according to City of Indianapolis v. Edmond, 531 U.S. 32, 121 S.Ct. 447, 148

L.Ed.2d 333 (2000).

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Checkpoint Doctrine

A checkpoint to verify drivers' licenses and vehicle registration is

permissible, but a checkpoint whose primary purpose is to detect evidence of

ordinary criminal wrongdoing is not; Delaware v. Prouse, 440 U.S. 648, 663, 99

S.Ct. 1391, 59 L.Ed.2d 660 (1979). The legality of a checkpoint turns on

whether its primary purpose was to check drivers' licenses and insurance, or

whether the primary purpose was general crime control; see Lujan v State, 331

S.W.3d 768, 771–72 (Tex. Crim. App. 2011). The uncontested testimony

presented by the State was that the three-day task force was operating for the

specific purpose of drug interdiction. The Troopers said so, every time they

were asked.

In City of Indianapolis, the Supreme Court recognized the regulatory

exception of Burger, in the context of traffic checkpoints, as permitting

searches for administrative purposes without particularized suspicion of

misconduct; see id. at 452, 121 S.Ct. 447. The key phrase in that holding was

“for administrative purposes”.

The checkpoint program at issue in City of Indianapolis was found to

“unquestionably [have] the primary purpose of interdicting illegal narcotics.”

The Supreme Court held that, “[b]ecause the primary purpose of the

Indianapolis narcotics checkpoint program is to uncover evidence of ordinary

criminal wrongdoing, the program contravenes the Fourth Amendment; City of

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Indianapolis v. Edmond, 531 U.S. 32, 40–42, 121 S. Ct. 447, 453–54, 148 L.

Ed. 2d 333 (2000).

Reconciliation of Brignoni-Ponce and City of Indianapolis

The facts before the Appellate Court in the instant case bridge the gap

between the roving patrols outlawed in Brignoni-Ponce and the criminal

interdiction checkpoints outlawed in City of Indianapolis—both of which were

found to be unconstitutional violations of the Fourth Amendment. The

method used by the Texas Department of Public Safety, combines the worst

aspects of the roving patrol with the worst aspects of criminal interdiction

road-blocks.

CONCLUSION

The Petition for Writ of Certiorari should be granted.

Respectfully Submitted,

Oscar O. Peña Law, PLLC

1720 Matamoros St., Laredo, Tx. 78040

P.O. Box 1324, Laredo, Tx. 78042

Telephone: (956) 722-5167

Fax: (956) 722-5186

By: /s/ Oscar O. Peña

Oscar O. Peña, J.D.

Texas State Bar Number: 90001479

oscar@oscarpenalaw.com

Attorney for Petitioner

Date: July 2, 2019

Page 12 of 27

NO. ___________________

IN THE SUPREME COURT OF THE UNITED STATES

_____________________________

CHARLES D. TUTTOILMONDO JR.,

PETITIONER

vs.

STATE OF TEXAS,

RESPONDENT

______________________________

ON PETITION FOR WRIT OF CERTIORARI

TO THE TEXAS COURT OF CRIMINAL APPEALS

_____________________________

APPENDIX

_____________________________

Index of Appendices

Appendix A:

Notice of Denial of Discretionary Review………………… A(1)

Appendix B:

Memorandum Opinion…………………………………….B(1)

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Appendix Exhibit A

Notice of Denial of Discretionary Review

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Appendix Exhibit B

Memorandum Opinion

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