Petition for Writ of Certiorari — Daniel Brian Masson, Petitioner v. Florida
Supreme Court briefAug 20, 2019
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CASE NUME[kj6)°S^0 1
IN THE SUPREME COURT OF THE UNITED STATES
filed
DANIEL BRIAN MASSON
Petitioner,
AUG 2 0 2019
V.
DISTRICT COURT OF APPEAL OF FLORIDA. SECOND DISTRICT
Respondent,
On Certiorari to the United States Supreme Court
PETITION FOR WRIT OF CERTIORARI
Petitioner: Daniel Brian Masson
DC# T95854
Okaloosa Correctional Institution
3189 Colonel Greg Malloy Rd.
Crestview, FI. 32539
Respondent: District Court of Appeal of Florida, Second District
P.O. Box 327
Lakeland, FI. 33802
Page 1
QUESTIONS PRESENTED:
Petitioner has been convicted of violating Florida Statute 827.071 (5) (a)
(2016), which is classified as a child abuse offense involving child sexual
performance. However, the State prosecution has not provided a single fact for the
record proving the Petitioner is guilty of the crime. Petitioner’s conviction is
illegal.
The Florida Second District Court of appeals denied the Petitioner’s motion
to correct the record when he clearly demonstrated in the motion how his pre-trial
hearing transcripts had been falsified. The fraud in the transcripts needs to be
investigated and refusal by appellate court to correct the record was a violation of
the Petitioner’s rights guaranteeing due process of the law under the 5th and 14th
Amendments.
Petitioner’s Public Defender submitted a pretrial motion to suppress
evidence intended to challenge the validity of a search warrant served at
Petitioner’s residence. These motions requested the reviewing court to determine
whether 5 images of children obtained from a law enforcement investigation of the
Petitioner amounted to child pornography and were therefore a probable cause to
issue the warrant. However, those 5 images were not included within the four
comers of the warrant’s supporting affidavit. Rather, the image descriptions were.
The magistrate heard and denied the motion on the grounds that the 5 images
Page 2
amounted to probable cause. Furthermore, the magistrate stated nothing for the
record how the images met the criteria of child pornography. The Florida Second
District court of Appeals affirmed this ruling without opinion.
The Appellate Court affirmed the trial court’s ruling denying a motion to
suppress statements when the Petitioner’s record and argument on appeal showed
that an interrogation recording was potentially fraudulent and how the judge did
nothing to fact find as he was supposed to.
LIST OF PARTIES
All parties appear in the caption of the case on the cover page. If Applicable.
Respondent: Florida District Court of Appeals, Second District
Petitioner: Daniel Brian Masson
Page 3
TABLE OF CONTENTS
INDEX OF APPENDICES
5
TABLE OF AUTHORITIES
7
IN THE SUPREME COURT OF THE UNITED STATES PETITION FOR WRIT OF
CERTIORARI
11
OPINIONS BELOW
11
JURISDICTION
11
STATEMENT OF THE CASE AND FACTS
11
REASONS FOR GRANTING THE WRIT
19
CONCLUSION
39
PROOF OF SERVICE
40
Page 4
INDEX OF APPENDICES
APPENDIX A- DECSION OF APPELLATE COURT; DENIAL OF MOTION
FOR REHERARING
APPENDIX B- DECISION OF THE TRIAL COURT
APPENDIX C- ENTIRE TRANSCRIPTS RELEVANT TO THE PETITION
APPENDIX D- MOTION TO SUPPRESS EVIDENCE
APPENDIX E- MOTION TO SUPPRESS STATEMENTS
APPENDIX F- SUMMARY OF MOTIONS HEARING
APPENDIX G- SUMMARY OF NELSON HEARING
APPENDIX H- LETTER FROM APPELLATE ATTORNEY STATING THAT
HE WOULD BE FILING AN ANDERS BRIEF
APPENDIX I- COPY OF LETTER AND SEARCH WARRANT FROM
APPELLATE COUNSEL
APPENDIX J- APPELLATE ATTORNEY’S ANDERS BRIEF AND COVER
LETTER
APPENDIX K- REQUEST FOR 60 DAY EXTENSION OF TIME TO FILE
INITIAL BRIEF FOR DIRECT APPEAL; NOTICES TO
CORRECT THE RECORD; DENIAL OF THOSE MOTIONS
APPENDIX L- DIRECT APPEAL INITIAL BRIEF
APPENDIX M- APPELLATE ATTORNEY’S REPLY LETTER REGARDING
WHY PETITIONER MAY NOT HAVE RECEIVED AN
ANSWER BRIEF FROM THE STATE ATTORNEY
APPENDIX N- MOTION FOR REHEARING/REHEARING EN BANC
APPENDIX O- MOTION TO CORRECT RECORD AND DENIAL FROM
APPELLTATE COURT
APPENDIX P- SEARCH WARRANT FOR RESIDENCE
APPENDIX O- SEARCH WARRANT FOR SKYPE
APPENDIX R- WHY IMAGE DESCRIPTIONS ON WARRANTS ’
SUPPORTING AFFIDAVITS ARE NOT THOSE OF CHILD
PORNOGRAPHY
Page 5
APPENDIX S- MOTION FOR STATEMENT OF PARTICUALARS
APPENDIX T- PROGRAMMABLE SPEECH CONVERSION; HOW POLICE
CREATED THE FRAUDULENT INTERROGATION
RECORDING
APPENDIX U- HOW PETITIONER’S CONVICTION AND SENTENCE ARE
ILLEGAL
APPENDIX V- PETITIONER’S RESEARCH REGARDING HOW ALL
EXPRESSION FOUND AT HIS RESIDENCE, OTHER THAN
THE 5 IMAGES DESCRIBED IN THE SEARCH WARRANT’S
AFFIDAVIT, WAS PRESUMPTIVELY PROTECTED BY THE
1ST AMENDMENT AND COULD NOT BE LAWULLY
SEIZED.
Page 6
■ i
TABLE OF AUTHORITIES
Cases
A Quantity ofBooks v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809
29
Aguilar v. Texas, supra, 378 U.S. at 111, 84 S.Ct. at 1512.................................
28
Berger Co. USA v. Shipping Corp. ofIndia, Ltd., 896 F2d 1210 (9th Cir. 1990)
19
Burnett v. State, 848 So.2d 1170 (Fla. 2nd DCA 2003);......................................
26
Florida v. Sabourin, 39 So.3d 376 (Fla. 1st DCA 2010).....................................
23
Getreu v. State, 578 So.2d 412 (Fla. 2nd DCA 1991)..........................................
23
Hayworth v. State, 637 So.2d 267......................................................................
26
Holden v. State, 877 So.2d 800, at 801-802 (Fla. 5th DCA 2004)......................
33
Illinois v. Gates, supra, 462 U.S. at 239, 103 S.Ct. at 2332
28
"N
King v. State, 779 So.2d 385 (Fla. 2nd DCA 2000)............
Lo-Ji Sales, Inc v. New York, 442 U.S. 319, 99 S.Ct. 2319, 60 L.Ed.2d 920 (1979)
23
:....29
Marcus v. Search Warrants, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127
29
Maryland v. Macon, 472 U.S. 463, 105 S.Ct. 2778, 86 L.Ed.2d 370 (1985)
29
Osborne v. Ohio, 495 U.S. 103, 110 S.Ct. 1691, 104 L.Ed.2d 95 (1990)
34, 36
Panzavecchia v. State, 201So.2d 762 (Fla. 3rdDCA 1967)
23
Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973)
29
Schmitt v. State, 590 So.2d 404 (Fla. 1991)
22
Stanford v. Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431(1965)
29
Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed2d 542 (1969)
34, 36
State v. Exantus, 59 So.3d 359
24
State v. Felix, 942 So.2d 5
26
State v. Garcia, 547 So.2d 628 (Fla. 1989)
26
Page 7
State v. Henderson, 253 So.2d 158...........................
20
State v. Martin, 539 So.2d 577 (Fla. 5th DCA 1989) .
23
State v. Moore, 791 So.2d 1246 (Fla. 1st DCA 2001)
33
State v. Vanderhors, 927 So.2d 1011.................................
24
Tedford v. Herting, 900 F.2d 745, 747 (3rd Cir. 1993)......
19
United State v. Hale, 784 F.2d 1465 (9th Cir 1986)...........
29, 30
United States v. Fracier, 423 F3d 526, 531 (6th Cir. 2005)
23
United States v. Gozola, 2012 U.S. Dist. LEXIS 106000
24, 27
United States v. Graewe, 11A F2d 106 (6th Cir. 1985)....
20
United States v. Jones, 451 F. Supp.2d 71 (United States District of Columbia 2006)
23
United States v. Leon, 468 U.S. 897, 915, 104 S.Ct. at 3416
27
United States v. Leon, 468 U.S. at 915, 104 S.Ct. 3416
28
United States v. Lowe, 516 F3d 580 (7th Cir. 2008)......
23
United States v. Melvin,419 F2d 1396 (4th Cir. 1969)...
23
United States v. Mutschelknaus, 592 F3d at 628-29....
23
United States v. Newsom, 402 F3d 780 (7th Cir. 2004)
23
United States v. Pearson, 2017 U.S. Dist. LEXIS 202476.................................
24
United States v. Prideaux-Wentz, 2007 U.S. Dist. LEXIS 57596 (7th Cir. 2007)
24
United States v. Sherwin, 572 F.2d 196 (9th Cir 1977), cert, denied, 437 U.S. 909, 98 S.Ct. 3101,
57 L.Ed.2d 1140(1978)..........................................................
29
United States v. Vega-Figueroa, 234 F3d 744 (1st Cir. 2000)....
23
United States v. Washington, 782 F.2d 807, 818 (9th Cir. 1986).
30
United States v. Weber, 923 F.2d 1338, 1345-46 (9th Cir. 1991).
27
Page 8
Walker v. State, 111 So.2d 573 (Fla. 1st DCA 2000)
33
Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 915 S.Ct. 1031, 28 L Ed. 2d 306
(1971)
26
Ybarra v. Illinois, 444 U.S. 85, 90, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979)
27
Statutes
§775.0847 (2)
12
§775.0847 (3) (2016)
12
§827.03
35
§827.071
passim
§827.07 l(l-)(a)
--11-
§827.071 (1) (f)
11
§827.071 (1) (h)
11,35
§827.071 (1)0)
11
§827.071 (5) (a)
12
§827.071 (5) (a) (2016)
34
§847.001
24
§847.0135
36
§90.953(2)
33
§90.954(1)
33
28 U.S.C. §1257 (a)
11
F.S. §90.952
33
Rules
Florida Appellate Rule 9.200 (f) (1)
20
Page 9
Florida Evidence Code 90.902 sub-paragraphs (1) and (4)
Page 10
21
IN THE SUPREME COURT OF THE UNITED STATES PETITION FOR
WRIT OF CERTIORARI
Petitioner respectfully prays that a writ of certiorari issue to review the judgment
below.
OPINIONS BELOW
The highest court to review the merits decided my case with no opinion. A copy of
that decision appears in Appendix A.
JURISDICTION
The date on which the highest State court decided my case was January 23,
2019. A copy of that decision appears at Appendix A. A timely Petition for
Rehearing was thereafter denied on April 3, 2019, and a copy of the order denying
the Rehearing appears at Appendix A. An Extension of Time to File the Petition
for Writ of Certiorari was granted to and including August 31, 2019, on June 24,
2019 in Application No. 18A1348. The Jurisdiction of this Court is invoked under
28 U.S.C. §1257 (a).
Constitutional and Statutory provisions involved Florida Statutes §827.071
(1) (a), §827.071 (1) (f), §827.071 (1) (h) and §827.071 (1) G) (all for the year
2016) -included as supporting facts in Appendix R.
STATEMENT OF THE CASE AND FACTS
On November 7, 2016, the State Attorney of the Thirteenth Judicial Circuit
in Hillsborough County Florida filed an information charging Petitioner Daniel
Page 11
Masson with 100 counts of possession of child pornography (10 or more images
and content of images) in violation of Florida Statutes §827.071 (5) (a), §775.0847
(2), and §775.0847 (3) (2016) Petitioner was arrested concerning these offenses on
October 18, 2016.
On June 28, 2017, Petitioner’s Public Defender filed a Motion to Suppress
any and all evidence derived from the search of Petitioner’s residence at 9309 N.
9th Street, Tampa, FI., as well as any admissions made by Petitioner. Petitioner
asserted his right to be free from unreasonable searches and seizures and he did not
knowingly, voluntarily, and intelligently waive his right to remain silent or his
right to counsel. The written Motion maintained that images initially reported to
law enforcement were not child pornography and requested the trial court to make
an independent analysis as to whether the images amounted to probable cause of
possession of child pornography [R. 207-R.210] (see Appendix D).
The Petitioner’s Public Defender also filed a Motion to Suppress Statements
to suppress any and all statements and purported “admissions” made by Petitioner
to any law enforcement agent. The written motion stated that Petitioner maintained
he did not initial, sign, or acknowledge a TPD-310 form—that is, a form used by
Tampa Law Enforcement to validate that Miranda rights were presented to a
suspect prior to questioning. Petitioner’s written motion also stated that Petitioner
did not understand the reading of his Miranda rights and any statements that
Page 12
followed were certainly not freely, knowingly, or voluntarily made. [R.211-R.216]
(see Appendix E).
Judge Rex Barbas presided over the hearing on both motions to suppress on
August 14, 2017. A detailed summary of that hearing is provided in Appendix F.
The transcripts of that hearing [R.375-R.437] are provided in Appendix C.
On September 18, 2017, during pre-trial discussions, Masson announced that
he wanted to discharge his attorney and have another attorney appointed. Judge
Nazaretian, who presided over the discussions, said he would have to conduct a
Nelson hearing. A summary of that hearing is provided in Appendix G. The portion
of the transcripts containing this Nelson hearing are provided in Appendix C.
[R.456-R.475]. Petitioner was not granted a new attorney.
'
Immediately following the Nelson hearing, the judge resumed the pre-trial
discussions. [R.475-R.497] (see Appendix C). He began engaging in trial
tips/suggestions with both the state prosecutor and Public Defender. The tips
included: where to place audio/visual equipment so as the observation of media is
only possible to jurors and does not affect the rights of either the Petitioner, a child
depicted in the media, or a potential courtroom visitor; the logistics/procurement of
audio/visual equipment; assistance in preliminary jury instructions; determination
as to whether Petitioner would be in shackles or leg braces during trial; tips on jury
instructions regarding how the jury are not to wonder about certain potential
Page 13
evidence they may not view on an external hard drive allegedly belonging to the
Petitioner.
The judge is then shown on the record advising the Petitioner of the potential
consequences of not accepting the State’s plea deal and proceeding to trial [R.497R.500] (see Appendix C]. Petitioner asked the court if he could still make a counter
offer [R.500]. The Public Defender stated that the State made a counter offer on
Friday, but he was not certain that they would still entertain one. A bench
conference was then held. At the conference, the judge stated that the ten year
sentence was too low to begin with [R.501]. After the bench conference, the Public
Defender asked the court for a 10 minute recess so he could speak with Petitioner
about the judge’s decision. The recess was granted [R.503].
The Public Defender asked the judge if it would be an option for Masson
(Petitioner) to enter the State’s negotiated plea and reserve his right to appeal the
motions Judge Barbas denied. The Prosecutor objected and said that was not part
of the plea negotiations [R.503]. The Prosecutor said she was not making that offer
but the court could allow it [R.504]. The judge asked if Petitioner reserved his right
to appeal, would it destroy her plea offer. He further stated that based upon what
she had already told him, her current offer was beyond reasonable [R.504]. The
Prosecutor requested a bench conference. The conference was granted and held off
the record [R.505].
Page 14
Upon return from the bench conference the Public Defender indicated
Masson would be entering a plea for ten years prison followed by ten years
probation and reserving his right to appeal the denial of his motions to suppress
[R.506-R.507]. The Prosecutor understood that the trial court was going to allow
Masson to do so.
Judge Nazaretian engaged Masson in a plea colloquy [R.506-R.513].
Masson understood that he was accused of 100 counts of possession of child
pornography and each count carried a maximum penalty of 15 years imprisonment,
Masson entered a guilty plea reserving his right to appeal the two motions to
suppress [R.508-R.509]. At the conclusion of the plea colloquy, Masson did not
have any questions about his plea [R.511-R.513].
The trial court found a factual basis for the plea and that the plea was entered
freely and voluntarily [R.515]. Masson was sentenced on counts 1 through 50 to
ten years imprisonment and on counts 51 through 100 to ten years sex offender
probation to run consecutive to the prison term. The trial court orally pronounced
all of the sex offender conditions of probation [R.516-R.525]. Masson’s Public
Defender filed his notice of appeal on September 29, 2017. Appendix B contains
the decision of the trial court.
Page 15
The Petitioner Daniel Masson was imprisoned at Okaloosa Correctional
Institution at Crestview, Florida and assigned a publicly appointed appellate
attorney for his direct appeal.
Masson was notified by his appellate attorney that he would be having to
make at least two 60-day extensions to file an initial brief on his case due to a
heavy workload. Meanwhile, Masson authored and mailed a report to the Appellate
Attorney explaining details about his case. Among those details was his
recollection of how the search warrant was issued to look for an endangered child
-not child pornography. Also, Masson included in his report an explanation of how
the copy of his alleged police interrogation recording, submitted as evidence by the
State Attorney, was falsified. Masson received letter correspondence back from his
appellate attorney stating that there was nothing in the record indicating that the
search warrant was to look for an endangered child. Furthermore, there was no
evidence on the record indicating that the interrogation recording was
“manipulated.” The appellate attorney also said that he would be filing an Anders
brief as soon as he received a copy of the TPD-310 Miranda form which was
introduced as evidence at the motions hearing. (The attorney did not receive that
document with the record on appeal). (Appendix H).
Masson mailed a letter to the appellate attorney asking him to mail a copy of
the search warrant that he had in the appellate record, since Masson never had an
Page 16
opportunity to examine it during trial court. Masson received a copy of the alleged
search warrant by mail (Appendix I). Masson mailed a letter back to the attorney
arguing that the documents appeared to be fraudulent or “invalid” and that he was
going to reserve the disclosure of his findings with the 2nd District Court of
Appeals which had jurisdiction over his direct appeal.
Masson received his appellate attorney’s Anders brief, cover letter and
record on appeal around July 23, 2018. A copy of the Anders brief and cover letter
is included in this Petition at Appendix J.
Masson immediately noticed that the transcripts of this trial court hearings
contained numerous omissions, changes, and additions to the actual dialog which
he recalled took place at those hearings. Masson immediately mailed a letter to his
appellate attorney asking him for advice. Meanwhile, Masson filed with the Florida
Second District Court of Appeals a 60 day extension for submitting a pro se initial
brief (Appendix K). Also, Masson learned about filing a motion to correct the
record from the law library resources at prison. Masson filed two of these motions
with the Appellate Court—one for the transcripts and one for the alleged search
warrants and their supporting affidavits (Appendix K). Masson drafted the motions
the best he could considering his lack of legal knowledge. Both motions were
denied by the Appellate Court (Appendix K). Shortly after receiving that notice of
denial, Masson received a letter from his publicly appointed appellate counsel
Page 17
stating that one has to very specific with the court as to what discrepancies appear
in the transcripts.
Masson’s 60 day extension to file his pro se initial brief was granted. He
began work on his brief despite the denial from the court to correct the record.
Masson did the best he could in authoring the brief. However, he was not certain
what issues qualified to be raised on direct appeal. Nevertheless, Masson submitted
his pro se initial brief on October 2018 (Appendix L).
After three months, Masson still had not received an answer from the State.
Therefore, Masson filed a letter to his appellate attorney asking for advice on what
to do. The attorney’s reply letter is enclosed in this Petition at Appendix M. His
letter stated that Masson could file a complaint with either the Attorney General’s
Office or the Appellate Court. However, the attorney warned Masson that he
would want to be cautious about filing a complaint with the Attorney General
because, since his initial brief was about two weeks late, they may decide to file a
motion to dismiss.
One week later, Masson received notification from the Second District Court
of Appeals that the panel affirmed without opinion the order of the trial court
(Appendix A). Masson filed a motion for rehearing/rehearing en banc (Appendix
N). And a few weeks later he filed another motion to correct the record, except this
time including specific examples of discrepancies in the trial court transcripts
Page 18
(Appendix O). Approximately 12 days later, Masson received notice from the court
that his motion to correct the record was denied (Appendix O). Masson then
received a notice from the court approximately one week after that stating that his
motion for rehearing/rehearing en banc was denied as well (Appendix A).
REASONS FOR GRANTING THE WRIT
Petitioner raises the following matters before the United States Supreme
Court: Our courts are not for “battle of the wits” games, fraud, and for the
exploitation of poor people who lack education concerning the law. In addition,
Petitioner’s trial court record fails to contain even one single fact to prove he is
guilty of a crime.
The fraud in the trial court transcripts will be addressed first. Petitioner is
aware that there is no constitutional right to a totally accurate transcript of a State
criminal trial—Tedford v. Herting, 900 F.2d 745, 747 (3rd Cir. 1993). However, a
constitutional violation does occur if the inaccuracies in the transcripts adversely
affect appellate review in the State courts. Id. A Petitioner must point to specific
errors alleged to have occurred during the unrecorded portions to support a claim
that the absence of a complete transcript resulted in prejudicial error requiring a
new trial—Berger Co. USA v. Shipping Corp. ofIndia, Ltd., 896 F2d 1210 (9th Cir.
1990). In assessing whether hardship or prejudice results from a trial courts failure
to record every statement made in “open court,” the reviewing court must consider
Page 19
all of the circumstances in the record surrounding the omissions—United States v.
Graewe, 11A F2d 106 (6th Cir. 1985).
The principle question is whether Petitioner has alleged discrepancies in his
trial transcripts substantial enough to call into question the validity of the appellate
process in his direct appeal. Petitioner maintains that his motion to correct the
record (Appendix O) (Florida Appellate Rule 9.200 (f) (1)) more than adequately
demonstrated that inaccuracies in his transcripts do, in fact, exist—and—were an
intentional act for the purposes of preventing disclosure to the appellate court
crucial facts which would justify reversal. Therefore, Petitioner feels that the
Florida Second District Court of Appeals seriously erred in denying the motion
(Appendix O).
The next issue addresses the authenticity of the two search warrants shown
in Appendices P and Q. None of these warrants and affidavits were admitted as
evidence at any time during the disposition of Petitioners trial case. Yet they
“magically appeared” when Petitioner obtained his appellate record.
The State had the burden of proving the authenticity of the search warrant at
the trial court suppression hearing—State v. Henderson, 253 So.2d 158.
Petitioner’s Public Defender never asked the State to produce the original or
certified copies of the warrants from the Clerk of Circuit Court’s Office. However,
Petitioner is certainly not raising an ineffective assistance of counsel claim. All that
Page 20
he is pointing out is that there is no way of knowing if the documents in
Appendices P and Q are genuine. They are not self authenticated and are in
violation of Florida Evidence Code 90.902 sub-paragraphs (1) and (4). Petitioner
attempted to resolve this matter by filing a motion to correct the record with the
Florida Second District Court of Appeals (Appendix K). The motion was denied.
Petitioner has maintained from the very beginning of his case that the grounds of
the search warrant issued for his residence was to look for an endangered child, not
child pornography. (Appendix G).
The next issue addresses the appellate court affirming the trial court’s denial
of the motion to suppress evidence. The Public Defenders written motion is shown
in Appendix D. The motion states that he was requesting the trial court to make an
independent determination as to whether the alleged images of child pornography
reported to law enforcement by electronic service provider “Skype” were a
probable cause for possession of child pornography.
Now referring to Appendices P and Q, one can clearly see that only
descriptions of those allegedly reported images appear in the affidavits. Now
shown at Appendix C, record pages R.430 to R.435, are series of bizarre
circumstances. First, shown on record page R.431, line 1 to R.432, line 7 is the
Public Defender and magistrate making a series of confusing statements which
were obviously well rehearsed. To summarize these ridiculous statements as good
Page 21
as possible, both the Public Defender and judge claimed that there was a case law
stating that, with possession of child pornography cases, either image descriptions
or their corresponding actual images may be included within the face or “four
comers” of a search warrant’s supporting affidavit. However, if only the image
descriptions are included, then those descriptions may be compared against the
alleged actual images at a motions hearing (implied) to determine if they
correspond to one another. If they did, then the reviewing (trial) court magistrate
may examine the actual images and determine whether they were in fact child
pornography and thus amounted to a probable cause to issue the warrant. This is,
of course, despite the fact that the images were not included within the affidavit
nor presented to the issuing court.
The alleged case law is not found in the Public Defender’s written motion
nor in law books. Further, it is contrary to the warrant provisions set forth by the
4th Amendment to the United States Constitution and a long standing judicial
precedent established by the United States Supreme Court which reflects those
provisions. The Court has ruled that, whenever a search warrant’s issuing court
makes its probable cause determination based solely upon the factual allegations
. included within the four comers of the warrant’s supporting affidavit, all levels of
judicial review thereafter must confine their probable cause inquiries to the same
factual allegations therein —Schmitt v. State, 590 So.2d 404 (Fla. 1991); King v.
Page 22
State, 779 So.2d 385 (Fla. 2nd DCA 2000); Florida v. Sabourin, 39 So.3d 376 (Fla.
1st DCA 2010); United States v. Newsom, 402 F3d 780 (7th Cir. 2004); United
States v. Jones, 451 F. Supp.2d 71 (United States District of Columbia 2006);
United States v. Vega-Figueroa, 234 F3d 744 (1st Cir. 2000); United States v.
Fracier, 423 F3d 526, 531 (6th Cir. 2005).
Furthermore, with regards to any searches of private dwellings here in the
State of Florida, neither the issuing court nor any levels of judicial review
thereafter, may include in their probable cause determinations any additional
evidence outside the warrant affidavits four comers—Getreu v. State, 578 So.2d
412 (Fla. 2nd DCA 1991); Panzavecchia v. State, 201 So.2d 762 (Fla. 3rdDCA
1967); State v. Martin, 539 So.2d 577 (Fla. 5th DCA 1989); United States v.
Melvin, 419 F2d 136 (4th Cir. 1969).
Federal cases involving child pornography have cited that “[A]s a general matter,
an issuing court does not need to look at the images described in an affidavit to
determine whether there is probable cause to believe that they constitute child
pornography. A detailed verbal description is sufficient”—United States v.
Mutschelknaus, 592 F3d at 628-29 (quoting United States v. Lowe, 516 F3d 580,
586 (7
tVi
Cir. 2008)). Likewise, whenever only image descriptions are included
among the factual allegations of a supporting affidavit, both the reviewing (trial)
court and appellate court confine their probable cause inquiries to those same
Page 23
factual averments therein. Not by including the alleged actual images in those
inquiries—United States v. Pearson, 2017 U.S. Dist. LEXIS 202476; United States
v. Gozola, 2012 U.S. Dist. LEXIS 106000; United States v. Prideaux-Wentz, 2007
U.S. Dist. LEXIS 57596 (7th Cir. 2007).
Petitioner maintains that what is depicted at record page R.431, line 1 to
R.432, line 7 is a “battle of the wits” con game. There is no way that two lawyers
and a judge “can’t get it right.”
Next, shown at record page R.432, line 11 to R.435, line 12 (Appendix C) is
equally disturbing. First, the state attorney provides the court with two cases and
two Florida Statutes—State v. Exantus, 59 So.3d 359; State v. Vanderhors, 927
So.2d 1011; §827.071; and §847.001 (revealed at R.434, line 5).
The two case laws were supposed to support her argument concerning how a
reviewing (trial) court, in her own words, “is to give great deference to the ruling
of the prior court on the basis for the search warrant within the four comers.” Her
argument doesn’t add up because the case laws only prove how this motions
hearing was ruling improperly as to the search warrant’s validity.
It’s important to note as well that the presiding judge over Petitioner’s
motions hearing, Judge Barbas, was directly involved in the Vanderhors case. So
the method of ruling probable cause at this hearing was even contrary to the
precedents cited in his own published case law.
Page 24
Shown next at record page R.433, line 2 to R.435, line 12 is the state
attorney misquoting the statutory language contained within Florida Statute
§827.071, which defines child sexual conduct. She then makes an odd claim that
one image has two females performing oral sex on a male, even though their faces
are turned away so that one cannot tell from the individual picture who they are nor
what they are doing. Then, finally, the judge rules that the images were child
pornography without even stating for the record how they met the criteria
according to statutory and/or decisional law.
The Petitioner is asking the United States Supreme Court: How can the
Florida Second District Court of Appeals affirm this ruling from the trial court
without an opinion when there is nothing on the record proving that the search
warrant was supported by probable cause? Petitioner certainly cannot figure this
out, so he wants the Supreme Court to do so.
Nevertheless, Petitioner wants to set the record straight. If anything, the trial
court magistrate at the suppression hearing should have determined if the image
descriptions were in fact those of child pornography and thus amounted to
probable cause. Petitioner maintains that the image descriptions are not those of
child pornography. Not even close. All that the Supreme Court Justices have to do
is look at the descriptions in the warrant affidavit (Appendices P and Q) and see
Page 25
that they don’t meet the criteria. However, Petitioner has included explanations in
Appendix R just to prove that he has conducted the legal research.
It should be pointed out that, even if the image descriptions were those of
child pornography, the affidavits lacked a factual basis indicating lawful
interception of those corresponding images by Skype. Since Skype is a private
“voice-over-IP” (VOIP) telecommunications system, such a factual basis would
have been required to validate the search warrant. Florida does not offer a good
faith exception to the exclusionary remedy with regards to these types of omissions
in search warrants—State v. Garcia, 547 So.2d 628 (Fla. 1989).
Also, the state attorney cannot add those omissions after the warrants have
been issued—Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 915
S.Ct. 1031, 28 L Ed. 2d 306 (1971).
Furthermore, even if the image descriptions were those of child
pornography, there are no factual allegations included in the affidavit which would
indicate either: 1) an ongoing pattern of activities related to child pornography; or
2) someone living at the residence was a collector of child pornography and would
thus retain such material for an extended period of time—Hayworth v. State, 637
So.2d 267; Burnett v. State, 848 So.2d 1170 (Fla. 2nd DCA 2003); State v. Felix,
942 So.2d 5.
Page 26
It should be pointed out as well that the state attorney has not mentioned
recovering any evidence after serving the alleged search warrant for Skype
(Appendix Q). Therefore, this second search warrant remains a mystery.
The boilerplate language found in both search affidavits is worthless as those
portions are not sufficiently particularized to the Petitioner and must be
disregarded—United States v. Gozola, 2012 U.S. Dist. LEXIS 106000; Ybarra v.
Illinois, 444 U.S. 85, 90, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979); United States v.
Weber, 923 F.2d 1338, 1345-46 (9th Cir. 1991).
And finally, to set the record straight regarding both search warrants, there is
more than a prima facie showing that the issuing magistrates abandoned their
judicial roles requiring them to be “neutral” and “detached” in their probable cause
determinations.—United States v. Leon, 468 U.S. 897, 915, 104 S.Ct. at 3416. The
issuing judges did not look at the warrants or their supporting affidavits. Certainly
both judges would have noticed immediately that the descriptions included in the
affidavits did not meet the criteria of child pornography.
Regarding the search of the Petitioner’s residence (Appendix P), the grounds
listed on the search warrant do not match the grounds listed on its affidavit.
Certainly, this is an indication of sloppy police work. However, it is also an
indication of an issuing magistrate who did not spend the time to look over these
documents. If he had done so, he would have noticed these obvious discrepancies
Page 27
and would have asked the affiant to correct them before authorizing the search.
Whether these technical inaccuracies invalidate the search would be a matter left
up to judicial review.
Petitioner points out as well that, after allegedly receiving the images from
NCMEC in mid-August 2016, the affiant (Detective Larson) sat on this case for 60
days doing essentially nothing. If the images were in fact probable cause he would
not have delayed. Instead, it appears as though he “dragged” this case out all the
way until two weeks before the November 2016 elections so that he could have
these judges “rubber stamp” the warrants. Judges cannot serve merely as a “rubber
stamp” for the police—Aguilar v. Texas, supra, 378 U.S. at 111, 84 S.Ct. at 1512.
See Illinois v. Gates, supra, 462 U.S. at 239, 103 S.Ct. at 2332. Therefore,
Petitioner maintains that the good faith exception to the exclusionary remedy does
not apply—United States v. Leon, 468 U.S. at 915, 104 S.Ct. 3416.
Nevertheless, no reasonably well trained police officer involved in child
pornography cases could believe the warrants to be valid either—especially
Detective Larson who drafted them.—Leon at 3420, n.20 (citation omitted).
Now that the validity of the search warrant has been argued, Petitioner now
challenges the validity of the seizure of the items from his place of residence. Once
again, the search warrant and affidavit for the search of Petitioner’s residence is
located in Appendix P. Petitioner’s research which supports his argument is
Page 28
contained in Appendix V. Briefly, the Petitioner maintains that all expression
found at his residence, other than the 5 images described in the search warrant’s
supporting affidavit, was presumptively/arguably protected by the First
Amendment. Therefore, the presumptively protected items could not have been
lawfully seized by law enforcement and further submitted as evidence at trial
court—Maryland v. Macon, 472 U.S. 463, 105 S.Ct. 2778, 86 L.Ed.2d 370 (1985);
United States v. Sherwin, 572 F.2d 196 (9th Cir 1977), cert, denied, 437 U.S. 909,
98 S.Ct. 3101, 57 L.Ed.2d 1140 (1978); Lo-Ji Sales, Inc v. New York, 442 U.S.
319, 99 S.Ct. 2319, 60 L.Ed.2d 920 (1979); Roaden v. Kentucky, 413 U.S. 496, 93
S.Ct. 2796, 37 L.Ed.2d 757 (1973); Stanford v. Texas, 379 U.S. 476, 85 S.Ct. 506,
13 L.Ed.2d 431(1965); Marcus v. Search Warrants, 367 U.S. 717, 81 S.Ct. 1708, 6
L.Ed.2d 1127; A Quantity of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12
L.Ed.2d 809; United State v. Hale, 784 F.2d 1465 (9th Cir 1986).
Also, just as was the case with the search of Petitioner’s residence, the Leon
good faith exception to exclusionary remedy cannot apply to the seizure. Leon
requires officers to have a reasonable knowledge of what the law prohibits—Leon
at 3420, n.20 (citations omitted). The United States Supreme Court observed in
Leon, “[Ojur good faith inquiry is confined to the objectively ascertainable
question whether a reasonably well trained officer would have known that the
search warrant was illegal despite the magistrate’s authorization.” Id at 3421, n.23.
Page 29
The law prohibiting the seizure of any material arguably protected by the First
Amendment other than that specifically named in a warrant’s supporting affidavit
is well established. Therefore, it is not unreasonable to require executing officers to
know it. — United State v. Hale, 784 F.2d 1465 (9th Cir 1986). Moreover, the courts
have serious doubts whether material arguably protected by the First Amendment
which is seized pursuant to overbroad provisions of a warrant can ever be
permitted through the good faith exception.—See Leon, 104 S.Ct. at 3422; United
States v. Washington, 782 F.2d 807, 818 (9th Cir. 1986).
As closing comments regarding both the search and seizure of Petitioner’s
residence, the Florida State Attorney has yet to provide a showing that the 5
images described in the warrant’s supporting affidavit were ever found/recovered
at the search location. Therefore, there is no evidence on the record to support the
conviction.
Petitioner would like to bring to the attention of the United States Supreme
Court that his Public Defender did not file a meritorious motion to suppress
challenging the seizure. Instead a Public Defender by the name of Angela
Greenough filed a frivolous “Motion for Statement of Particulars” (Appendix S),
which served no relevant purpose towards properly defending the Petitioner. The
stipulated order in limine, signed by the judge at Petitioner’s pre-trial discussions is
also included in Appendix S. (refer to transcript record page R.464 located in
Page 30
Appendix C). Both the motion and stipulated order in limine represent a worthless
absurdity.
Petitioner has a compelling interest in presenting his case before the United
States Supreme Court for certiorari review because of the extraordinary
circumstances on the record which indicate fraud, deception and intentional
miscarriages of justice.
This next issue is of significant national importance
because it addresses a threat to freedom and security of the American people.
Law enforcement authorities in Tampa, Florida are using a precision digital
process known as programmable speech conversion to create realistically
sounding, artificially created confession recordings.
Before explaining this technology and how law enforcement used it to
commit fraud, Petitioner presents a brief argument regarding Appellate Court
affirming the trial court’s denial of his motion to suppress statements.
Briefly, Petitioner’s interrogation was recorded in a patrol car at the scene by
both Officer’s Darrin Jenne and James Parsons. [R.380-381; R.410]. Only Officer
Jenne’s testified at Petitioner’s motions hearing. Officer Parsons did not.
Without explaining where it came from, the State Prosecutor introduced at
the hearing a compact disc (CD) which she claimed was a copy of Petitioner’s
interrogation recording. Likewise, a Miranda form was introduced by the State as
well. [R.383].
Page 31
Oddly after both items were admitted into evidence, Officer Jenne gave
repeated testimony indicating that he had no knowledge or recollection of either
the recording or the filling out of the Miranda form. [R.384-R.387].
During playback one can hear an alleged interrogation with a voice sounding
like Office Jenne reading Miranda rights while a voice sounding like that of
Petitioner acknowledged them[ R.389-390]. The voice sounding like that of the
Petitioner is heard mispronouncing his last name as MASS’-UN [R.390].
(Petitioner pronounces his last name as Mass-on’). The voice sounding like Officer
Jenne is heard eliciting an implied promise of leniency if Petitioner cooperates
because the Division chief is female [R.395].
After playback of this recording, the Petitioner gave repeatedly consistent
testimony regarding how the actual interrogation differed from the recording as
well as how he was not read his Miranda rights. Also, his testimony was rock solid
concerning his inability to initial the portion of the Miranda form containing those
rights [R.401-411]. The judge is even clearly shown on the record acknowledging
the Petitioner’s credibility [R.409]. Petitioner also raised a genuine question
concerning the recording’s authenticity by briefly pointing out (what he considered
being) technical anomalies which were apparent upon listening to it [R.410].
Despite the Petitioner’s repeatedly consistent explanations in court the judge
is clearly shown on the record ruling that there was no Miranda rights violation
Page 32
based upon evidence “other than the Defendant’s testimony” [R.415]. The judge is
also clearly shown on the record stating... “[i]f somebody believes that a recording
has been doctored, there’s ways to verify that a recording has been doctored.”
[R.414]. Yet this judge did nothing to follow up with that. Further, he ignored
Officer Jenne’s inconsistent testimony at this hearing as well as Jenne’s elicitation
of leniency revealed during the recording’s playback.
Nevertheless, the role of the trial court is to weigh the credibility of
witnesses and to resolve evidentiary conflicts, and, on truly discretionary matters,
the appellate court must recognize the trial court’s superior vantage point—Holden
v. State, 877 So.2d 800, at 801-802 (Fla. 5th DCA 2004).
The judge at this motions hearing did nothing to fact find. Furthermore, the
Florida Second District Court of Appeals affirmed this ridiculous ruling. This is
unacceptable because both trial and appellate court judges are supposed to know
what the prerogatives are at these suppression hearings—State v. Moore, 791 So.2d
1246 (Fla. 1st DCA 2001); Walker v. State, 771 So.2d 573 (Fla. 1st DCA 2000).
Petitioner raised more than enough argument on the record questioning the
validity of the recording. Nevertheless, Petitioner had a right to rebut it’s
authenticity—F.S. §90.952; §90.953(2) §90.954(1).
Law enforcement used a precision digital method known as programmable
speech conversion to create the fraudulent recording (Appendix T). Petitioner will
Page 33
make one thing perfectly clear with the Attorney General of the State of Florida,
the Florida Second District Court of Appeals, and the United States Supreme
Court. We the people will not allow anyone from this government to use this
technology against us. This technology can be used to unlawfully convict anyone
of any crime (including, perhaps, an unsolved capital offense) for the purpose of
removing them from society because of their social, political or religious beliefs. Is
this going to be a new concept of “justice” here in America?
And finally, Petitioner maintains that his conviction and sentence are illegal
on the grounds established by Osborne v. Ohio, 495 U.S. 103, 110 S.Ct. 1691, 104
L.Ed.2d 95 (1990) and Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed2d
542 (1969). The explanations that follow are based upon the results of Petitioner’s
research contained in Appendix U as well as his arguments previously presented in
this Petition.
Regarding the search of Petitioner’s residence, all expression, other than the
5 images described in the warrant’s supporting affidavit, was presumptively
protected under the First Amendment and could not have been lawfully seized and
included as evidence at Petitioner’s trial case. Therefore, what remains to be
considered are those 5 images.
Petitioner
could
not
have
been
convicted
of violating
Florida
Statute§827.071 (5) (a) (2016), possession of child sexual performance. In order to
Page 34
have done so, the Florida State Prosecution had to prove that all of the following
elements applied to either one, —or— more than one of the 5 images described in
the search warrant’s affidavit: 1) the image(s) were in fact found at the search
location; 2) the image(s) were knowingly possessed by the Petitioner; 3) the
image(s) depicted child sexual conduct as defined under §827.071 (1) (h); and 4)
the image(s) amounted to child abuse by the Petitioner as defined under §827.03.
The Florida State Prosecution has not proved for the record any of these elements.
Petitioner maintains that the compact disc (CD) recording of his alleged
police interrogation was fraudulently produced using programmable speech
conversion. He was not read nor made understood his Miranda rights. However,
even if he was, any so-called “confessions” that he allegedly made would serve no
purpose to the State Prosecution.
First of all, there is no evidence on the record indicating that the Petitioner
admitted to having knowingly possessed the only admissible evidence—that is, the
5 images described in the search warrant’s supporting affidavit. However, even if
he did, such a confession would have no benefit to the prosecution for the reasons
explained thus far.
Secondly, any general confessions that the Petitioner would have made
regarding where police could have found so-called “child pornography” would
provide no benefit to the State Prosecution either. This is so because, at the time of
Page 35
the interrogation, the Petitioner was in no better legal position of knowing what
child pornography was than the police were.
The entire search and seizure conducted at Petitioner’s residence was illegal
because the search warrant’s supporting affidavit lacked probable cause. The
reasons why were explained earlier in this Petition. Among the reasons was the
fact that the 5 image descriptions listed on the supporting affidavit did not meet the
criteria of child pornography. Nevertheless, Petitioner’s analysis of Florida
Statutory laws as well as his analysis of the Stanley and Osborne Supreme Court
decisions (Appendix U) would tend to indicate that additional facts surrounding
those 5 images would have been required to establish probable cause for the two
grounds listed on the search warrant—that is, violations of Florida Statute
§827.071 and §847.0135.
As already explained, a violation of Statute §827.071 occurs when an
offender is allegedly involved in the original production of material depicting a
sexual performance of a child. Likewise, a violation of Statute §847.0135 occurs
when an offender allegedly uses a computer network in an attempt to violate
Statute §827.071 or otherwise engage in other sexual activities with a child.
By alleging violations of those two Statutes on the search warrant, the
Affiant was implying that someone at the Petitioner’s residence would have been
involved in the original photography of the children depicted in the 5 images and,
Page 36
furthermore, evidence of that involvement would have been found at the residence.
However, the search warrant’s supporting affidavit did not include any factual
allegations to support that. In fact, the Affiant did not even supply information
from the National Center for Missing and Exploitation Children (NCMEC)
regarding whether the children depicted in the images were either from a known or
unknown origin. Therefore, Petitioner maintains that these omissions further
invalidate the search warrant. Moreover, this would further support Petitioner’s
assertion explained earlier in this Petition that the issuing magistrate was merely
“rubber stamping” the search warrant two weeks before the November elections.
With the search warrant invalid, all evidence, including the so-called
“confession” by the Petitioner, is inadmissible in trial court. What remains to be
considered is derivative evidence. For the most part, this refers to all expression
other than the 5 images described in the warrant’s supporting affidavit, which was
found at the search location and was presumptively protected by the First
Amendment. Nevertheless, Petitioner could be charged with an offense if law
enforcement could discover a criminal nexus between him and any of that
derivative evidence through an applicable exclusionary exception. For example, if
an independent police investigation would lead to a lawfully issued search warrant
served on Petitioner’s computer equipment already in police custody, evidence
stored on that equipment could be admissible through the “independent source”
Page 37
exception. Of course, the warrant would have to be supported by probable cause
indicating that Petitioner’s alleged possession amounted to a crime.
This presents an intriguing legal question as to why the Petitioner was faced
with the seemingly unorthodox circumstances back in trial court. Certainly it’s
obvious from the record that the Public Defender had no intention of properly
defending the Petitioner. In addition, it’s quite apparent that the judges involved in
his case had no intention of being fair as they are supposed to be.
On the other hand, every effort was in fact made to persuade the Petitioner
into agreeing to a plea deal for a crime in which the evidence clearly showed he
was not guilty of. Petitioner invites the United States Supreme Court Justices to
read the entire transcripts (Appendix C) and judge for yourselves. Nevertheless, the
Petitioner maintains that the purpose of such persuasion was to intentionally extend
his incarceration so the police could maintain custody of the derivative evidence
and hopefully discover an applicable exclusionary exception to any of it. If in fact
an exclusionary exception could be found, it would serve to “cover up” the mistake
which the police made in serving the search warrant.
The other purpose for extending the Petitioner’s incarceration would be to
“drag out” his case long enough to where both the State Attorney and Judges
would permanently accrue the Petitioner’s conviction on their records even after
his conviction would be reversed. What this means is that both the Judges and
Page 38
State Attorney’s Office would obtain credit for Petitioner’s conviction even if the
police do not find any evidence to lawfully convict him.
Finally, a brief argument regarding the search warrant for the alleged Skype
account. There are no facts on the record indicating that law enforcement found
any criminal evidence as a result of that search. Therefore, this search warrant
remains a “mystery.” Nevertheless, the warrant’s supporting affidavit lacked
probable cause for essentially the same reasons as the warrant for the search of
Petitioner’s residence. Likewise, the “good-faith” exception to the exclusionary
remedy does not apply for the same reasons as was explained concerning the
warrant for Petitioner’s residence as well.
CONCLUSION
For the foregoing reasons, this Court should grant the writ of certiorari in
this case, appoint counsel for Petitioner to represent him in this cause, and order
full hearing.
Respectfully submitted,
4-
Daniel Masson, Petitioner, pro se
DC# T95854
Okaloosa Correctional Institution
3189 Colonel Greg Malloy Rd.
Crestview, FI. 32539-6708
Page 39
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.