Opposition Brief — Charles D. Tuttoilmondo, Jr., Petitioner v. Texas

No. 19-5280

In The

Supreme Court of the United States

_________

CHARLES D. TUTTOILMONDO,

v.

Petitioner,

STATE OF TEXAS,

Respondent.

_________

On Petition for a Writ of Certiorari to

the Court of Criminal Appeals

of the State of Texas

_________

BRIEF IN OPPOSITION OF

THE STATE OF TEXAS

_________

ISIDRO R. ALANIZ

DISTRICT ATTORNEY,

49TH JUDICIAL DISTRICT,

THE STATE OF TEXAS

1110 Victoria, Ste. 401

Laredo, Texas 78040

(956) 523-4900

DAVID L. REUTHINGER, JR.*

ASSISTANT DIST. ATTORNEY,

49TH JUDICIAL DISTRICT,

THE STATE OF TEXAS

1110 Victoria, Ste. 401

Laredo, Texas 78040

(956) 523-4900

*Counsel of Record

Counsel for Respondent

i

TABLE OF CONTENTS

Page

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

STATEMENT OF THE CASE ....................................... 1

SUMMARY OF ARGUMENT ....................................... 2

ARGUMENT ................................................................. 3

I. The Novelty Argument to Preservation

Should Not Apply to Issues on Direct

Appeal. ............................................................... 3

II. The Fourth Amendment Is Properly

Focused

On

The

Objective

Reasonableness Of A Search. ............................. 4

CONCLUSION.............................................................. 7

ii

TABLE OF AUTHORITIES

Page

Cases

Brown v. Ill., 422 U.S. 590, 95 S.Ct 2254, 45

L.Ed.2d 424-45 (1975) ............................................... 5

Kentucky v. King, 563 U.S. 452, 31 S.Ct.

1849, 179 L.Ed.2d 865 (2011) ................................... 4

Little v. State, 758 S.W.2d 551 (Tex. Crim.

App. 1988, cert. denied, 488 U.S. 934, 109

S.Ct. 328, 102 L.Ed.2d 346) (Oct. 31, 1988))

................................................................................... 4

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

App. 1993) ................................................................. 3

Murray v. Carrier, 477 U.S. 478, 106 S.Ct.

2639, 91 L.Ed.2d 397 (1986) .............................3, 4, 6

N.Y. v. Burger, 482 U.S. 691, 107 S.Ct. 2636

96 L.Ed.2d 601 (1987) ............................................... 4

Peterson v. Greenville, 373 U.S. 242, 83 S.Ct.

1119 10 L.Ed.2d 323 (1962) ...................................... 6

Reed v. Ross, 468 U.S. 1, 104 S.Ct. 2901, 82

L.Ed.2d 1 (1984) ........................................................ 3

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

2574, 45 L.Ed.2d 607 (1975). .................................... 5

U.S. v. Fort, 248 F.3d 475 (5th Cir. 2001)..................... 4

Statutes

49 U.S.C. § 113 (2012) .................................................. 1

49 U.S.C. § 502 (2012) .................................................. 1

TEX. TRANSP. CODE ANN. § 644.001 (West

2012) .......................................................................... 1

In The

Supreme Court of the United States

_________

No. 19-5280

_________

CHARLES D. TUTTOILMONDO,

v.

Petitioner,

STATE OF TEXAS,

Respondent.

_________

On Petition for a Writ of Certiorari to

the Court of Criminal Appeals

of the State of Texas

_________

BRIEF IN OPPOSITION OF

THE STATE OF TEXAS

_________

STATEMENT OF THE CASE

Petitioner, a commercial truck driver, was stopped

by a Texas Department of Public Safety (DPS) highway patrol trooper, an officer certified to administer

the Texas implementation of the Federal Motor Carrier Safety Act’s (FMCSA) regulations.1 The trooper

was also a member of a narcotics task force which had

1 49 U.S.C. § 113, 502 (2012); TEX. TRANSP. CODE ANN. §

644.001 (West 2012).

2

developed individualized suspicion that Petitioner

was engaged in narcotics trafficking using his commercial truck. In the course of the safety inspection,

the trooper noted FMCSA infractions for failure to

keep a log and travel book, and asked for Petitioner’s

consent to search the cargo. Petitioner consented to

the search, and the trooper discovered over 1,500

pounds of packaged marijuana.

Petitioner was charged with second-degree felony

possession of marijuana, in the 49th District Court of

Zapata County, Texas. He filed a motion to suppress,

but did not urge suppression of the search on the

grounds of a Fourth Amendment violation; he merely

challenged the resulting statements. Upon his conviction, he appealed to the Court of Appeals for the

Fourth District in San Antonio, which held Appellant’s Fourth Amendment issue was not preserved.

The Texas Court of Criminal Appeals refused discretionary review and Petitioner now seeks the same

from this Court.

SUMMARY OF ARGUMENT

The novelty exception to preservation is ill-applied

here because it does not serve the Fourth Amendment

exclusionary rule’s deterrent nature. Moreover, Petitioner’s argument is self-defeating: he asserts that the

trooper’s individualized suspicion of Petitioner as a

drug trafficker undermines the validity of the search

under the regulatory exception to the warrant requirement; he instead casts the search as a violation

of the roving-patrol doctrine, which condemns

searches conducted without individualized suspicion.

This irony, combined with Petitioner’s consent to the

3

search during the safety inspection, refutes his argument.

Moreover, Petitioner seeks to inject a subjectivity

component into the Fourth Amendment, adulterating

its focus on the reasonableness of the search itself.

The relief sought is better provided through other constitutional remedies, such as the Sixth Amendment

right to effective counsel and the Fourteenth Amendment’s right to equal protection and prohibition of arbitrary state action.

ARGUMENT

I. THE

NOVELTY

ARGUMENT

TO

PRESERVATION SHOULD NOT APPLY TO

ISSUES ON DIRECT APPEAL.

1. “A State's procedural rules serve vital purposes at

trial, on appeal, and on state collateral attack.” Murray v. Carrier, 477 U.S. 478, 490, 106 S.Ct. 2639, 2645,

91 L.Ed.2d 397, 409 (1986). The States have a strong

interest in the finality of the judgments of their courts,

and so may require constitutional error to be raised in

the court of first instance; this “type of rule promotes

not only the accuracy and efficiency of judicial decisions, but also the finality of those decisions, by forcing the defendant to litigate all of his claims together,

as quickly after trial as the docket will allow….” Id.

(quoting Reed v. Ross, 468 U.S. 1, 10, 104 S.Ct. 2901,

2907, 82 L.Ed.2d 1, 10 (1984)).

Texas considers preservation of error to be a systemic requirement, but exempts certain “fundamental” rights. Marin v. State, 851 S.W.2d 275, 278 (Tex.

Crim. App. 1993). The Fourth Amendment’s search

clause is not one of them. Little v. State, 758 S.W.2d

4

551 (Tex. Crim. App. 1988, cert. denied, 488 U.S. 934,

109 S.Ct. 328, 102 L.Ed.2d 346) (Oct. 31, 1988)).

2. Petitioner argues that the Marin bar protects

Texas from having its search-and-seizure practices

vetted. However, regardless of any state rule of procedural bar, a litigant may raise an issue that was defaulted in a subsequent habeas corpus proceeding.

Murray, 477 U.S. at 485-86, 106 S.Ct. at 2643, 91

L.Ed.2d at 406. Novel issues not raised in the trial

court should wait for habeas; there, a record can be

developed of the reasons why said issue was not

raised, further promoting justice and economy by preventing procedural gamesmanship and preserving legitimate strategic choices of defense counsel. See id.

II. THE FOURTH AMENDMENT IS PROPERLY

FOCUSED

ON

THE

OBJECTIVE

REASONABLENESS OF A SEARCH.

1. The core of the Fourth Amendment is the objective reasonableness of searches; the subjective intentions of the officers are irrelevant. Kentucky v. King,

563 U.S. 452, 464-65, 31 S.Ct. 1849, 1858-59, 179

L.Ed.2d 865, 877 (2011). Generally, warrantless

searches are unreasonable subject to exceptions like

the pervasively-regulated industry doctrine that applies to truckers like Petitioner. Id.; U.S. v. Fort, 248

F.3d 475, 479-80 (5th Cir. 2001) (citing N.Y. v. Burger,

482 U.S. 691, 107 S.Ct. 2636 96 L.Ed.2d 601 (1987)).

2. Petitioner says that a drug task force that employs FMCSA-enforcing troopers is really a revival of

the roving patrols held unconstitutional in U.S. v.

Brignoni-Ponce, 422 U.S. 873, 882, 95 S.Ct. 2574,

5

2580-81, 45 L.Ed.2d 607, 67 (1975). The evil of the rovers was their lack of individualized suspicion; the rovers’ subjective whims that Mexicans are suspicious

took the place of the Fourth Amendment’s requirement of objectively reasonable suspicion. Id. But Petitioner’s objection is precisely that the trooper had specifically fingered him as a drug trafficker. This proves

the point that subjective suspicion has zero to do with

the objective reasonableness of a search.

The actual difference between our trooper and the

Border Patrol rovers in Brignoni-Ponce was whether

the searchees’ expectation of privacy was objectively

reasonable. It didn’t matter that the rovers’ motive

was to stop Mexicans; it mattered whether the stop

was at the border or not. Id. For the Petitioner, what

matters is that he voluntarily chose to participate in

a pervasively regulated industry; his proposal to instead make the subjective intent of the searcher control weakens the Fourth Amendment. The Amendment’s exclusionary rule is, in part, a deterrent measure meant to check police conduct. Brown v. Ill., 422

U.S. 590, 559-60, 95 S.Ct 2254, 2259-60, 45 L.Ed.2d

424-45 (1975). The Amendment loses its deterrent

power if some police or some searchees are more equal

than others, such that a search under X circumstances

is okay if done for purpose Y but not for purpose Z.

The “true motivations” of the officer could easily be

misrepresented, whether by the officer, the prosecution or the defense. Subjectivity is an invitation to

gamesmanship, not justice. The reasonableness of the

search must be tied to the practices of the searcher

and not their purpose, lest Petitioner invite more of

the very evil he is supposedly against.

6

3. The Constitution already provides protections

against the kinds of abuses feared by Petitioner. On

habeas review, the merits of Petitioner’s claim can be

reached via an ineffective-assistance claim, with the

benefit of a further-fleshed record. Murray, 477 U.S.

at 485-86, 106 S.Ct. at 2643, 91 L.Ed.2d at 406. The

Fourteenth Amendment’s guarantees would protect

Petitioner, or anyone else, from being targeted by the

troopers for some irrational purpose. Peterson v.

Greenville, 373 U.S. 242, 248, 83 S.Ct. 1119, 1121, 10

L.Ed.2d 323, 326 (1962).

*

*

*

The Fourth Amendment’s purposes—prophylaxis

and privacy—are not served by reviving a procedurally-barred search claim on direct appeal. A serious

inquiry into subjective police bias is better done under

the auspices of the Sixth or Fourteenth Amendment

via a collateral proceeding, in which the record can

better show the motivations of all involved.

7

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

ISIDRO R. ALANIZ

DISTRICT ATTORNEY,

49TH JUDICIAL DISTRICT,

THE STATE OF TEXAS

1110 Victoria, Ste. 401

Laredo, Texas 78040

(956) 523-4900

DAVID L. REUTHINGER, JR.*

ASSISTANT DIST. ATTORNEY,

49TH JUDICIAL DISTRICT,

THE STATE OF TEXAS

1110 Victoria, Ste. 401

Laredo, Texas 78040

(956) 523-4900

dreuthinger@webbcountytx.gov

Counsel for Respondent

*Counsel of Record

August 2019