Petition for Writ of Certiorari — Brandon Lee Alexander, Petitioner v. United States

No. 20-

SUPREME COURT OF THE UNITED STATES

Brandon Lee Alexander

Petitioner,

vs.

United States of America,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

Jerry W. Laughlin

100 South Main Street

Greeneville, TN 377438

Telephone: 423-639-5183

Fax: 423-639-6154

E-Mail: jlaughlin2@rInhc.com

Counsel for Petitioner

I. Question Presented

In order to deny a motion to suppress where a warrantless inventory

search is found to have violated the defendant’s constitutional rights, should the

inevitable discovery rule exception to the exclusionary rule include primary evidence

discovered during the unconstitutional search without any evidence of the absence of

bad faith on the part of law enforcement officers who conducted that search?

III.

VII.

IX.

XI.

II. Table of Contents

Question Presented . 2.0.22... cece cece ccc cececceeee. i

Table of Contents ..........000 0.0 ccc eee ee eee Ll obceeveveveeees il

Table of Authorities 2.6.0.0... ccc c cece cecccee iii

Petition for Writ of Certiorari ... 00.0.2. cc ccc eecee. 1

Opinions Below 2.0.0... ect ccc eee ce cece eeeecees 1

Jurisdiction 2.0... cece cece cece eveceeeccee. 1

Constitutional Provision Involved ... 20.00.00. coco cece ccc cecccccee. 1

Statement ofthe Case 20.0... ccc cc cece cece cceeee 2

1. The Arrest For Traffic Violation and Search of Alexander's

Vehicle 2.0... ccc cece cece cece veeceeees 3

2 Direct Appeal . 2... c ce ceeceee. 5

Reasons for Granting The Writ... 20.0.0 c cece cece cece. 6

A. To avoid deprivations of the right to be free from unreasonable

warrantless searches, this Court should clarify the inevitable

discovery doctrine to preclude the admissibility of primary

evidence obtained in violation of Fourth Amendment rights under

the inevitable discovery exception ...................0---0-0.. 6

B. To avoid deprivations of the right to be free from unreasonable

warrantless searches, this Court should at least preclude the

admissibility of primary evidence obtained in violation of the

Fourth Amendment under the inevitable discovery exception in

the absence of proof by the prosecution of the absence of bad faith

by the investigating officers .. 0.0.00... o occ ece cece e ee. 8

Conclusion .. 2.0... cece c ec cb cece eeeeee. 9

Appendix 2... cece cece ecb eee ebeceecc ee. 11

“Li

III. Table of Authorities

Cases

Murray v. United States, 487 U.S. 583 (1988) ............-.0. 0. eee eee.

Nix v. Williams, 467 U.S. 431 (1984) 2.00 e cece eens

28 U.S.C. §1257

Constitutional Provision

United States Constitution, AmendmentIV ...........................

Other Sources

Richard M. Bloom, Inevitable Discovery: An Exception Beyond the Fruits,

Boston College Law School, (1992)

Troy E. Golden, The Inevitable Discovery Doctrine Today,

B.Y.U. Journal of Public Law, Vol. 13 (1998)

“Ili

IV. Petition for Writ of Certiorari

Brandon Lee Alexander, an inmate currently incarcerated at Butner Low

Federal Correction Institution, Butner, North Carolina, by and through Jerry W.

Laughlin, his court-appointed attorney, respectfully petitions this Court for a writ of

certiorari to review the judgment of the Sixth Circuit Court of Appeals.

V. Opinions Below

The decision by the Sixth Circuit Court of Appeals denying Mr. Brandon’s

direct appeal in pertinent part is reported as United States v. Brandon Lee Alexander,

No. 19-5607 (6 Cir. April 1, 2020).

VI. Jurisdiction

My. Alexander invokes this Court’s jurisdiction under 28 U.S.C. §1257,

having timely filed this petition for writ of certiorari within ninety(90) days of the

entry of the decision and judgment by the Sixth Circuit Court of Appeals.

VII. Constitutional Provision Involved

United States Constitution Amendment IV:

wills

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.

VII. Statement of the Case

In 1984, this Court held in Nix v. Williams, 467 U.S. 431 (1984), that

evidence about the location and condition of the victim’s body, which had been obtained

from the defendant in violation of his Sixth Amendment right to counsel, was

admissible if law enforcement could prove by preponderance of the evidence that such

evidence would have “inevitably” been discovered without the defendant's statements.

In finding that the challenged evidence was admissible, the Court found that the

prosecution had met its burden of proof because before the incriminating statement

was obtained from the defendant, a massive search had been undertaken in the general

location where the body was ultimately found.

Therefore, this Court then held that the derivative evidence from the

violation of the constitutional rights of a defendant was admissible, and not subject to

the exclusionary rule adopted to protect such constitutional rights, because the

prosecution had demonstrated by a preponderance of the proof that the incriminating

evidence would have inevitably been discovered without the violation of the defendant’s

constitutional rights.

This case presents the question of whether primary evidence, rather than

derivative evidence, obtained as a direct result of the violation of the constitutional

rights of the defendant is admissible, and not subject to the exclusionary rule, if the

prosecution can prove by preponderance of the evidence that it would inevitably have

been discovered based upon hypothetical assumptions of what might have occurred,

and without the proof of the lack of bad faith on behalf of the officers conducting the

unconstitutional search that resulted in the discovery of such primary evidence.

1. The Arrest For Traffic Violation and Search of Alexander's Vehicle

During an investigation of whether methamphetamine was being sold at

712 Baker Street, Morristown, Tennessee, the home of the mother of Brandon

Alexander, Detective Pete Shockley of the Morristown Police Department (“MPD”)

learned that Mr. Alexander’s driver's license was suspended. Thereafter, on April 24,

2017, Shockley saw Alexander leave the house and drive away in a vehicle, and

Shockley then participated in the stop of that vehicle. When Shockley approached the

vehicle, he saw a bank deposit bag that was zippered closed on the front seat, and he

also noticed a safe with a digital keypad in the back seat thereof. Alexander was

placed under arrest for driving on a suspended driver’s license.

Shockley asked Alexander for permission to search the vehicle, but

Alexander refused. Shockley then performed what he asserted was an “inventory”

3-

search of the Alexander vehicle, during which there was discovered in the Alexander

vehicle a baggie with methamphetamine residue, drug paraphernalia, and over

$11,000.00 in cash in the closed bank deposit bag.

After the completion of the search of Alexander’s vehicle, Shockley

subsequently found 35 grams of methamphetamine in Alexander’s waistband.

Alexander was then taken to jail and his vehicle was towed.

The following day, Shockley obtained a search warrant for the safe found

in the back seat of Alexander’s vehicle, and in executing that search warrant he

discovered a pistol and documents pertaining to Alexander in the safe. As a result of

his arrest on April 24, 2017, a Federal grand jury indicted Alexander for possession

with the intent to distribute methamphetamine, possession of a firearm in furtherance

of a drug trafficking offense, and possession of a firearm as a felon.

Alexander moved to suppress the fruits of the April 24, 2017 search of his

vehicle, and an evidentiary hearing was held before a Magistrate Judge. The

Magistrate Judge upheld the search on the sole ground that it was a properly

conducted inventory search. The district court adopted the Report and

Recommendation of the Magistrate Judge and found that the April 24, 2017 search of

Alexander's vehicle was proper under the inventory search exception.

The items of evidence found during that inventory search of Alexander's

vehicle were then admitted into evidence at Mr. Alexander’s trial, and the jury found

him guilty of each of the three (3) counts for which he was charged as a result of the

April 24, 2017 search, as well as another charge stemming from a subsequent arrest.

2. Direct Appeal

On direct appeal, Alexander renewed his argument that his Fourth

Amendment rights had been violated when the officers searched his vehicle on April

24, 2017. Alexander insisted on appeal that the search of his vehicle on that occasion

was not a constitutionally permissible inventory search thereof because the Morristown

Police Department had not adopted guiding principles that govern the scope of vehicle

inventory searches.

The Sixth Circuit Court of Appeals, after finding that there was no

evidence of either “standardized criteria” or “established routine” governing the scope

of inventory searches by the Morristown Police Department, it had to conclude the

search was conducted with “uncantalized discretion.” Therefore the Court of Appeals

held that the inventory search exception to the requirement ofa search warrant did not

apply in this case, and that the evidence obtained from the search of Alexander’s

vehicle was not admissible for that reason.

Nevertheless, the Sixth Circuit Court of Appeals then went on to find that

the evidence obtained from Mr. Alexander’s vehicle as a direct result of the search

thereof on April 24, 2017, was admissible because it found that “the inevitable -

discovery doctrine salvages the April 24, 2017, search.”

The Court concluded that because of the discovery of the

methamphetamine in Mr. Alexander’s waistband subsequent to the actual search of

his vehicle, had the officers waited until after that was discovered, such evidence would

have been sufficient to justify a warrantless search of Alexander's vehicle either

because of probable cause to believe the vehicle contained contraband or evidence of

criminal activity, and also would have been justified pursuant to the automobile

exception to the search warrant requirement.

IX. Reasons for Granting The Writ

A. To avoid deprivations of the right to be free from unreasonable warrantless

searches, this Court should clarify the inevitable discovery doctrine to preclude

the admissibility of primary evidence obtained in violation of Fourth

Amendment rights under the inevitable discovery exception.

The exclusionary rule provides an incentive for the police to follow the

law. When exceptions to the exclusionary rule are created, the result is to remove the

incentive. As stated by one commentator:

[T]he existence of the inevitable discovery exception will]

provide the police with an incentive to avoid the warrant

requirement. The police might seek the most expeditious

method of obtaining the evidence without regard to its

illegality, knowing that, as long as they could have obtained

the evidence legally, their efforts will not result in its

suppression. This approach will indeed affect the

deterrence rational of the exclusionary rule as it was

encourage the police to take procedural shortcuts rather

than to comply with the law.

Richard M. Bloom, Inevitable Discovery: An Exception Beyond the Fruits, Boston

College Law School (1992), page 95.

While the decision of the Court in Murray v. United States, 487 U.S. 533

(1988) is a case in which the Court concluded that the independent source rule applies

not only to derivative evidence, but also to primary evidence, many lower courts have

since also applied the inevitable discovery rule to both primary and derivative

evidence. On the other hand, other courts have maintained that the inevitable

discovery rule does not extend to evidence obtained as a direct result of the

unconstitutional act. See United States v. Polanco, 93 F. 3d 555, 561 (9 Cir. 1996)

(interpreting Nix v. Williams, as implying that the inevitable discovery doctrine does

not “allow admission of the unconstitutional inculpatory statement itself.”) In the

words of another commentator:

[T]he Supreme Court has done nothing to expressly expand

the inevitable discovery doctrine to primary evidence,

whereas it has expressly expanded the independent source

in Murray. This may suggest that the two doctrines have

relevant differences, which justify treating them differently.

Independent source situations deal with an established

27s

historical fact, an action that has actually occurred, whereas

inevitable discovery situations deal with speculation, a

hypothetical event, or the possibility that something would

have occurred. Because a supposedly “inevitability” is less

tangible and consequently not as readily provable as an

independent source discovery that has actually occurred, it

would be quite appropriate to allow the inevitable discovery

doctrine less leeway than one would allow the independent

source doctrine.

Troy E. Golden, The Inevitable Discovery Doctrine Todav, B.Y.U. Journal of Public

Law, Vol. 18 (1998), page 112.

The point is, of course, if left unchecked, the inevitable discovery rule, when applied

to the admission of primary evidence located during the unconstitutional search, may

very well effectively override the exclusionary rule designed to protect constitutional

rights.

B. To avoid deprivations of the right to be free from unreasonable warrantless

searches, this Court should at least preclude the admissibility of primary

evidence obtained in violation of the Fourth Amendment under the inevitable

discovery exception in the absence of proof by the prosecution of the absence

of bad faith by the investigating officers.

Given the fact that the application of the inevitable discovery rule has

such a great likelihood of being used by law enforcement to undermine the

constitutional rights protected by the exclusionary rule, more should be required for

the prosecution before it is applied by our courts.

If the inevitable discovery rule is to be used to admit primary evidence

illegally obtained, there is the possibility, that without more to the use of this

exception than the mere assumptions and hypotheticals upon which it is ordinarily

based, it could surely render ineffective the determent purpose ofthe exclusionary rule.

Therefore, Mr. Alexander would submit that in order to preserve some of

the effectiveness of the deterrence of the exclusionary rule to the violation of the

constitutional rights of our citizens, when it comes to the use of this exception for the

admission of primary evidence, the Court must at least impose proof by the prosecution

of the absence of bad faith by the officers when authorizing the courts to apply this

exception. In this case the evidence introduced by the prosecution over Mr. Alexander's

objection was evidence obtained as a direct result of the violation of his Fourth

Amendment Rights, primary evidence, without any proof by the prosecution of the

absence of bad faith by the officers conducting that impermissible search.

X. Conclusion

For the foregoing reasons, Mr. Alexander respectfully requests that this

Court issue a writ of certiorari to review the judgment of the Sixth Circuit Court of

Appeals.

Dated this 19" day of June, 2020.

Res ectfully Submitted:

Cal. [2

Jeyry W. Laughlin (BPR#002120)

Attorney for Petitioner

LAUGHLIN, NUNNALLY, HOOD

& CRUM, PC

100 South Main Street

Greeneville, TN 37743

Telephone: 423-639-5183

Fax: 423-639-6154

E-Mail: jlaughlin2@rlInhc.com

L‘\Criminal\ Alexander, Brandon (U.S. vs.) 18-2042\Petition for Writ of Certiorari

-10-