Petition for Writ of Certiorari — Yarlin Garcia, Petitioner v. United States

Supreme Court briefAug 13, 2021

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No.

In the Supreme Court of the United States

Yarlin Garcia,

Petitioner

United States of America,

Respondent

On Petition for Writ of Certiorari to the United States Court of Appeals for

the First Circuit

Petition for Writ of Certiorari

William L. Welch, III

Counsel of Record

5305 Village Center Drive, Suite 142

Columbia, Maryland 21044

wlw@wwelchattorney.com

Telephone: (410) 615-7186

Facsimile: (410) 630-7760

(Appointed pursuant to the Criminal

Justice Act)

Question Presented

Whether the District Court erred by denying Mr. Garcia’s Motion to

Suppress?

Parties and Related Cases

The names of all parties appear in the caption of the case on the cover page,

and there are no related proceedings.

iii

Table of Contents

Question Presented ....................................................................................................... ii

Parties and Related Cases ........................................................................................... iii

Table of Contents ......................................................................................................... iv

Index of Appendices ..................................................................................................... vi

Table of Authorities .................................................................................................... vii

Glossary of Abbreviations ............................................................................................ ix

Opinions Below ............................................................................................................. 1

Jurisdiction .................................................................................................................... 1

Constitutional Provision Involved ................................................................................ 2

Statement of the Case ................................................................................................... 2

Reasons for Granting the Petition ............................................................................... 4

A United States Court of Appeals Has Sanctioned a District Court’s Departure

from the Accepted and Usual Course of Judicial Proceedings, which Calls for

the Exercise of this Court’s Supervisory Power ................................................... 4

Standard of Review........................................................................................ 4

Analysis: The District Court Should Have Granted Mr. Garcia’s Motion to

Suppress, Because Government Agents Arrested Him Without a Warrant

and Without Probable Cause ........................................................................ 5

Warrantless Arrest ............................................................................... 5

Lack of Probable Cause ......................................................................... 5

First, Officers Made the Constraint and Seized Mr. Garcia .......... 5

Unreasonable Seizure .................................................................... 10

Later, Agents Had a K-9 Sniff for Drugs ...................................... 11

Unreasonable Search ..................................................................... 11

This Was Not a “Terry Stop” ............................................................... 12

II.

Importance of the Case ..................................................................................... 13

District Court’s Erroneous Ruling............................................................ 13

Likewise, the Court of Appeals Ignored the Lack of Reliability, Varying

Information, and Mistake ......................................................................... 14

Conclusion .................................................................................................................... 14

Counsel of Record and Other Counsel ........................................................................ 15

Index of Appendices

Appendix A: Opinion of U.S. Court of Appeals for the First Circuit ........................ A1

Appendix B: Decision and Order of U.S. District Court ............................................ A5

Appendix C: Order of U.S. Court of Appeals for the First Circuit, denying Petition

for Rehearing and Rehearing en Banc ..................................................................... A20

Appendix D: Judgment of U.S. District Court ......................................................... A21

Table of Authorities

Cases

Beck v. Ohio, 379 U.S. 89 (1964) ................................................................................. 10

Brendlin v. California, 551 U.S. 249 (2007) ................................................................. 9

California v. Hodari D., 499 U.S. 621 (1991) ............................................................. 10

Chapman v. California, 386 U.S. 18 (1967) .................................................................. 4

Florida v. Bostick, 501 U.S. 429 (1991)....................................................................... 12

Garcia v. United States, 982 F.3d 844 (2020) ......................................................... 1, 14

Glik v. Cunniffe, 655 F. 3d 78 (1st Cir. 2011) .............................................................. 10

Michigan v. Chesternut, 486 U.S. 567 (1988) ............................................................... 9

Michigan v. DeFillippo, 443 U.S. 31 (1979) ................................................................ 10

Miranda v. Arizona, 384 U.S. 436 (1966) ................................................................. 8, 9

Terry v. Ohio, 392 U.S. 1 (1968) ............................................................................ 12, 14

United States v. Bowles, 625 F.2d 526 (5th Cir. 1980) .................................................. 9

United States v. Brignoni-Ponce, 422 U.S. 873 (1975) ............................................... 12

United States v. Brunette, 256 F.3d 14 (1st Cir. 2001) .......................................... 11, 13

United States v. Chhien, 266 F.3d 1 (1st Cir. 2001) .................................................... 12

United States v. Henderson, 463 F.3d 27 (1st Cir. 2006) ............................................ 14

United States v. Holloway, 499 F. 3d 114 (1st Cir. 2007) ....................................... 9, 10

United States v. Mendenhall, 446 U.S. 544 (1980) ..................................................... 10

United States v. Ruidiaz, 529 F. 3d 25 (1st Cir. 2008) .......................................... 12, 14

United States v. Smith, 423 F.3d 25 (1st Cir. 2005) ................................................ 9, 10

United States v. Winchenbach, 197 F. 3d 548 (1st Cir. 1999) ..................................... 10

United States v. Woodbury, 511 F. 3d 93 (1st Cir. 2007) ................................ 10, 11, 13

vii

Weeks v. United States, 232 U.S. 383 (1914) ........................................................ 11, 13

Wong Sun v. United States, 371 U.S. 471 (1963).................................................. 11, 13

Constitutions

U.S. Const. amend. IV ................................................................................................... 2

Statutes

18 U.S.C. § 3231 ............................................................................................................. 2

21 U.S.C. § 841 ............................................................................................................... 3

28 U.S.C. § 1254(1) ........................................................................................................ 2

28 U.S.C. § 1291 ............................................................................................................. 2

viii

Glossary of Abbreviations

Add’m

Addendum to Appellant’s Opening Brief

App’x

Appendix

Br.

Brief

No.

In the Supreme Court of the United States

Yarlin Garcia,

Petitioner

United States of America,

Respondent

On Petition for Writ of Certiorari to the United States Court of Appeals for

the First Circuit

Petition for Writ of Certiorari

Petitioner Yarlin Garcia prays for the issuance of a Writ of Certiorari to

review the Judgment of the United States Court of Appeals for the First Circuit.

Opinions Below

The Opinion of the United States Court of Appeals for the First Circuit

appears at Appendix A to this Petition. It is reported at 982 F.3d 844 (2020). The

District Court’s ruling appears at Appendix B to this Petition. It is unpublished.

Jurisdiction

On December 16, 2020, the United States Court of Appeals for the First

Circuit issued its Judgment and Opinion. The First Circuit denied the Petition for

Rehearing and the Petition for Rehearing en Banc on March 16, 2021. The Order

denying rehearing and rehearing en banc appears at Appendix C to this Petition.

Jurisdiction of the Supreme Court arises pursuant to Title 28 United States

Code, section 1254(1). Jurisdiction in the First Circuit was based upon Title 28

United States Code, section 1291, the final judgment in a criminal case, entered

against Petitioner on August 12, 2019 in the United States District Court for the

District of Maine (Portland). The District Court’s Judgment appears at Appendix D

to this Petition. Jurisdiction in the District Court was based upon Title 18 United

States Code, section 3231, because the United States prosecuted Petitioner for

violation of the United States Code.

Constitutional Provision Involved

The Fourth Amendment to the United States Constitution provides:

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

Petitioner seeks review of his conviction.

By Complaint filed on July 21, 2017 Task Force Officer Thomas Lapierre

charged Mr. Garcia with possession with intent to distribute heroin, fentanyl, and

cocaine, in violation of Title 21, United States Code, Section 841(a)(1) and

841(b)(1)(C). App’x to Opening Br. at 26 – 30.

By Indictment filed on July 26, 2017 the Grand Jury charged Mr. Garcia with

possession with intent to distribute heroin, fentanyl, and cocaine, in violation of

Title 21, United States Code, Section 841(a)(1) and 841(b)(1)(C). App’x to Opening

Br. at 31.

By Superseding Indictment filed on September 6, 2017 the Grand Jury

charged Mr. Garcia with possession with intent to distribute 100 grams or more of

heroin, fentanyl, and cocaine, in violation of Title 21, United States Code, Section

841(a)(1) and 841(b)(1)(B). App’x to Opening Br. at 32.

On January 18, 2018 Mr. Garcia filed a Motion to Join Codefendant Louis

Rosario Diaz’s Motion to Suppress, challenging the government’s claims about its

seizure of things that the government would offer in evidence at trial. Id. at 40 –

54.

After hearings on March 14 and 27, 2018 the District Court denied Messrs.

Diaz’s and Garcia’s Motions to Suppress. Add’m at 1 – 15.

On October 25, 2018 Mr. Garcia entered a conditional plea of guilty to one

count of possession with intent to distribute 100 grams or more of heroin, fentanyl,

and cocaine. App’x to Opening Br. at 280 – 295.

On July 29, 2019, the District Court sentenced Mr. Garcia to incarceration for

a term of 87 months (7 years and 3 months), a 4-year term of supervised release,

and a $100 special assessment. Add’m at 16 – 22.

Mr. Garcia filed a Notice of Appeal on August 12, 2019. App’x to Opening Br.

at 357 – 358.

Reasons for Granting the Petition

A warrantless seizure without probable cause is illegal.

Likewise, a

warrantless search without probable cause is also illegal. The appropriate remedy

is exclusion of any evidence that result from government agents’ illegal seizure and

searches.

Government agents did not have a warrant for Mr. Garcia.

Nor did

government agents have a warrant for the silver Dodge pickup truck or anyone in it.

Although agents might have had reason to believe that someone inside of 19 Nason

Street was about to receive contraband, they did not have probable cause to believe

that anyone in the silver Dodge pickup truck was committing a crime. Accordingly,

the District Court should have granted suppression.

A United States Court of Appeals Has Sanctioned a District Court’s

Departure from the Accepted and Usual Course of Judicial

Proceedings, which Calls for the Exercise of this Court’s Supervisory

Power.

Standard of Review.

When the Supreme Court reviews preserved constitutional trial error, the

government must prove that the error was harmless beyond a reasonable doubt.

Chapman v. California, 386 U.S. 18, 24 (1967).

Analysis: The District Court Should Have Granted Mr. Garcia’s

Motion to Suppress, Because Government Agents Arrested Him

Without a Warrant and Without Probable Cause.

Warrantless Arrest.

Although the government has relied on a state search Warrant for a

particular house on Nason Street in Sanford, Maine to search:

Any/all persons present on the premises of [address] at the time of execution

of this search warrant or arriving at the residence or premises during the

execution of this search warrant activities [sic] or unrelated residents of that

building[;]

the government did not have a warrant to arrest Mr. Garcia, and he was not on the

premises. Add’m at 8.

Lack of Probable Cause.

First, Officers Made the Constraint and Seized Mr.

Garcia.

When agents arrested Mr. Garcia, he was a passenger in a silver Dodge

pickup truck with Maine registration plates on a public street until the agents

forcibly removed him and the other people, who were also in the truck. Id. at 8.

For about a year after arresting CD11 for drug trafficking, Agent Carleton

had been surveilling CD1 on suspicion of additional trafficking. Id. at 1; App’x to

Opening Br. at 84 – 114. Agent Carleton followed CD1 to Nason Street in Sanford,

Maine on June 8, 2017 and suspected that CD1 was picking up drugs. Id.

1 The term CD1 refers to a person, whose true name was not part of the public

record in the District Court.

When Agent Carleton arrested CD1 on June 19, 2017, CD1 had four “fingers,”

which is about 40 grams of heroin. Add’m at 2; App’x to Opening Br. at 84 – 114.

CD1 agreed to cooperate. Id.

CD1 told Agent Carleton a physical description of CD2,2 CD1’s source for

drugs, where CD2 lived, the CD2’s first name, and a description of what CD2 drove.

Id. CD1 confirmed that the June 8th trip Carleton had observed was in fact to pick

up 200 grams of heroin from the source on Nason Street in Sanford. Id. CD1 told

Agent Carleton about observing substantial quantities of heroin and cocaine at the

Nason Street address during the previous months. Id. CD1 consented to Agent

Carleton looking at CD1’s cell phone and identified CD2 as CD1’s source, appearing

as “Connect” on CD1’s cell phone. Id. CD1 also told Agent Carleton about believing

CD2’s source of supply to be a Hispanic male from Massachusetts.

Id.

Agent

Carleton photographed text messages between CD1 and CD2 on June 19th, which

CD1 said meant that CD2 had 5 fingers of heroin and was hopeful to have more the

next day to sell to CD1. Id.

Agents obtained a search warrant for the CD2’s Nason Street premises. Id.

On June 20th, agents including Task Force Officer Lapierre began surveilling the

house on Nason Street. Add’m at 2; App’x to Opening Br. at 115 – 147.

Meanwhile, Agent Carleton instructed CD1 to try to arrange a transaction

with CD2, listened to CD1’s phone calls and photographed the texts between CD1

and CD2. Add’m at 2 – 3; App’x to Opening Br. at 84 – 114. CD1 asked whether

2 The terms CD2 refers to a different person, whose true name was also

not part of the public record in the District Court.

CD2 was “good For 25,” and CD2 responded “Ya if he gets here in time.” Add’m 3;

App’x to Opening Br. at 84 – 114. Another said that CD2’s source was “on way from

Connecticut.” Id. During one of the phone calls, CD2 referred to the transaction

between CD2 and CD2’s source as for “30 grand.” Id.

When a vehicle with Massachusetts plates arrived at CD2’s house on Nason

Street in Sanford late in the evening of June 20th, and someone went inside the

house, agents executed the state warrant, believing that CD2’s source had arrived.

Add’m at 3; App’x to Opening Br. at 115 – 147.

Inside the house agents then

learned that the teenager, who had just arrived, came to play video games with

another teenager in the house. Id.

Inside the house agents also detained CD2, who agreed to cooperate. Id.

Agents had no previous dealings with CD2, who told Officer Lapierre: that CD2 had

placed an order that was going to be delivered in 10 minutes; that CD2 had the

money for the transaction; that a dark colored SUV, possibly a Jeep, would pull into

the driveway or park in front of the house; that the drugs would be concealed in the

engine compartment in an air vent or intake, and CD2 identified “B Man” as CD2’s

source on CD2’s cell phone. Add’m at 3 – 4; App’x to Opening Br. at 115 – 147.

Officer Lapierre listened to calls, indicating that the source was on the long

road, which CD2 said was U.S. 202; indicating that the source was right outside,

and asking CD2 to move the red car, which Officer Lapierre had previously seen at

the end of the driveway. Add’m at 4 – 5; App’x to Opening Br. at 115 – 147. CD2

told Officer Lapierre “They’re here.” Add’m at 5; App’x to Opening Br. at 115 – 147.

Other agents observed a silver Dodge pickup come down Nason Street from

the direction of Route 202, stop briefly in front of the house, and then proceed in the

direction of Main Street. Add’m at 5; App’x to Opening Br. at 115 – 226. A few

minutes later, it returned and stopped directly in front of the house, but still on the

public street, adjacent to the curb. Id.

As Officer Lapierre was yelling Dodge truck, CD2 hears that and kind of

mumbled that “he had previously used a Dodge truck or silver truck.” Add’m at 5;

App’x to Opening Br. at 137:22 – 137:25.

Officer Lapierre ordered the seizure of the truck and anyone in it, including

Mr. Garcia. Add’m at 5; App’x to Opening Br. at 115 – 226.

Trooper Adam Schmidt illuminated the cab of the pickup truck and activated

his emergency lights to make the people in the truck aware that they were stopped

at that point. App’x to Opening Br. at 205:10 – 205:13.

About ten agents, all with guns drawn were shouting as they approached the

truck. Add’m at 6; App’x to Opening Br. at 115 – 226. Trooper Schmidt approached

the driver’s side and ordered the driver Louis Rosario Diaz to get out. Id. When he

did not immediately get out, Trooper Schmidt forcibly pulled him out and onto the

ground, cuffing him, and checked him for weapons while he was on the ground. Id.

Likewise, Special Agent Derek McDonald detained the front seat passenger

Mr. Garcia, told Mr. Garcia that he was detained, and gave Mr. Garcia Miranda

warnings. Id.; See, Miranda v. Arizona, 384 U.S. 436 (1966). Agent McDonald

reads Miranda warnings, because he does not feel that the people feel they are free

to leave if they are in handcuffs. App’x to Opening Br. at 179:22 – 179:25.

Both a driver and passenger have standing to object to the seizure, of the car

and themselves. Brendlin v. California, 551 U.S. 249 (2007).

Whether the police surround a person or otherwise restrict his ability to leave

is a significant factor in the seizure inquiry. See Michigan v. Chesternut, 486 U.S.

567, 575, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988); United States v. Bowles, 625 F.2d

526, 532 (5th Cir. 1980).

At that point, they had seized Mr. Garcia.

Seizure occurs when a police

officer by physical force or a show of authority in some way restrains a person.

United States v. Holloway, 499 F. 3d 114, 117 (1st Cir. 2007). Police illuminating

the cab of the pickup truck, activating emergency lights to make the people in the

truck aware that they were stopped at that point (App’x to Opening Br. at 205:10 –

205:13), about ten agents, all with guns drawn and shouting as they approached the

truck, ordering the driver to get out, forcibly pulled him out and onto the ground,

cuffing him, checked him for weapons while he was on the ground, likewise

approaching and handcuffing Mr. Garcia, telling Mr. Garcia that he was detained,

and giving Mr. Garcia Miranda warnings (Add’m at 6; App’x to Opening Br. at 115

– 226); was a show of authority such that a reasonable person in the Mr. Garcia’s

position would not feel free to leave. Holloway, supra; see United States v. Smith,

423 F.3d 25, 28 – 29 (1st Cir. 2005). In addition, all of this shows that Mr. Garcia

actually submitted to the show of authority. Holloway, supra; see California v.

Hodari D., 499 U.S. 621, 626 – 629 (1991); Smith, 423 F.3d at 31 – 32; see United

States v. Mendenhall, 446 U.S. 544, 554 (1980).

Unreasonable Seizure.

The facts and circumstances about which police had reasonably trustworthy

information in this case at the moment when they seized Mr. Garcia would not have

caused a reasonably prudent person to believe that he had committed, was

committing, or was about to commit a crime. Glik v. Cunniffe, 655 F. 3d 78, 85 – 86

(1st Cir. 2011); Michigan v. DeFillippo, 443 U.S. 31, 37, 99 S.Ct. 2627, 61 L.Ed.2d

343 (1979); see also United States v. Winchenbach, 197 F. 3d 548, 555 (1st Cir. 1999);

Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964).

When agents seized Mr. Garcia, all they knew was CD2’s claim about hoping

to receive drugs around that time from someone driving a dark SUV, possibly a

Jeep. Add’m at 3 – 4; App’x to Opening Br. at 115 – 147. They had already seized a

teenager by mistake. Add’m at 3; App’x to Opening Br. at 115 – 147. After CD2

hears Officer Lapierre yelling Dodge truck, CD2 kind of mumbled that “he had

previously used a Dodge truck or silver truck.” Add’m at 5; App’x to Opening Br. at

137:22 – 137:25.

Even though Mr. Garcia was a passenger in a silver Dodge pickup truck with

Maine registration plates on a public street, agents forcibly removed him and the

other people, who were also in the truck. Add’m at 8; App’x to Opening Br. at 115 –

226.

Accordingly, the seizure was illegal, and all evidence obtained as a result of it

must be suppressed. United States v. Woodbury, 511 F. 3d 93, 99 (1st Cir. 2007)

(citing United States v. Brunette, 256 F.3d 14, 19 (1st Cir. 2001); Weeks v. United

States, 232 U.S. 383, 391 – 93, 34 S.Ct. 341, 58 L.Ed. 652 (1914); Wong Sun v.

United States, 371 U.S. 471 (1963).

Later, Agents Had a K-9 Sniff for Drugs.

About 17 minutes after Trooper Schmidt’s dash cam was activated, he had

his K9 sniff around the truck exterior. Add’m at 6 – 7; App’x to Opening Br. at 115

– 226.

Unreasonable Search.

Later, under the hood agents found a heroin/fentanyl mixture and cocaine.

Add’m at 7; App’x to Opening Br. at 115 – 226.

For the same reasons that the seizure of Mr. Garcia was unreasonable,

searching him and the truck were also unreasonable. He incorporates all of the

same reasons and authority that he did for his seizure argument, which appears

following the caption: First, Officers Made the Constraint and Seized Mr. Garcia in

Section I.A.2.a., supra at 5 – 10.

When a seizure is illegal, all evidence obtained as a result of it must be

suppressed. United States v. Woodbury, 511 F. 3d 93, 99 (1st Cir. 2007) (citing

United States v. Brunette, 256 F.3d 14, 19 (1st Cir. 2001); Weeks v. United States,

232 U.S. 383, 391 – 93, 34 S.Ct. 341, 58 L.Ed. 652, (1914)); Wong Sun v. United

States, 371 U.S. 471 (1963).

This Was Not a “Terry Stop.”

While police may temporarily detain a person, provided that the police i) have

a reasonable, articulable suspicion of a person’s involvement in criminal activity,

and ii) act reasonably in relation to the stop, unless they have a proper basis to

expand it (United States v. Ruidiaz, 529 F. 3d 25, 28 – 29 (1st Cir. 2008); United

States v. Chhien, 266 F.3d 1 (1st Cir. 2001); Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct.

1868, 20 L.Ed.2d 889 (1968)); agents in this case just immediately arrested him,

then began looking for a reason to justify what they had already done.

Even a brief detention, short of traditional arrest, must be based on

reasonable, objective justification. United States v. Brignoni-Ponce, 422 U.S. 873,

878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). When agents seized Mr. Garcia, all they

knew was CD2’s claim about hoping to receive drugs around that time from

someone driving a dark SUV, possibly a Jeep. Add’m at 3 – 4; App’x to Opening Br.

at 115 – 147. They had already seized a teenager by mistake. Add’m at 3; App’x to

Opening Br. at 115 – 147. After CD2 hears Officer Lapierre yelling Dodge truck,

CD2 kind of mumbled that “he had previously used a Dodge truck or silver truck.”

Add’m at 5; App’x to Opening Br. at 137:22 – 137:25.

Agents did not ask for permission.

Nor did they begin by asking a few

questions. Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389

(1991).

Instead, even though Mr. Garcia was a passenger in a silver Dodge pickup

truck with Maine registration plates on a public street, agents forcibly removed him

and the other people, who were also in the truck. Add’m at 8; App’x to Opening Br.

at 115 – 226.

The government agents in this case had neither probable cause nor

reasonable suspicion when they seized Mr. Garcia. Accordingly, the seizure was

illegal, and all evidence obtained as a result of it must be suppressed. United States

v. Woodbury, 511 F. 3d 93, 99 (1st Cir. 2007) citing United States v. Brunette, 256

F.3d 14, 19 (1st Cir. 2001); Weeks v. United States, 232 U.S. 383, 391 – 93, 34 S.Ct.

341, 58 L.Ed. 652 (1914); Wong Sun v. United States, 371 U.S. 471 (1963).

II.

Importance of the Case.

The Court of Appeals has sanctioned the District Court’s departure from the

accepted and usual course of judicial proceedings, and the Supreme Court should

exercise its supervisory power.

District Court’s Erroneous Ruling.

Instead of granting the Motion to Suppress, the District Court denied it.

Add’m at 16 – 22. The District Court dismissed the lack of evidence regarding

cooperators’ reliability, including the lack of any prior experience with CD2; varying

information from the cooperators’ about whether CD2’s out of state source was in

Connecticut, New Hampshire, or Massachusetts; that agents had already seized a

teenager driving a car with Massachusetts registration plates by mistake; that CD2

told them about receiving drugs from someone driving a dark SUV, possibly a Jeep

and only after CD2 hears Officer Lapierre yelling Dodge truck does CD2 kind of

mumble that “he had previously used a Dodge truck or silver truck.”

Then, the District Court found that despite all of that this was a Terry stop

without addressing how this would have been reasonable, articulable suspicion of a

person’s involvement in criminal activity, in order to stop Mr. Garcia. United States

v. Ruidiaz, 529 F. 3d 25, 28 – 29 (1st Cir. 2008).

Nor did the District Court how what the police did would have been

reasonable. Id.; see United States v. Henderson, 463 F.3d 27, 45 (1st Cir. 2006).

Likewise, the Court of Appeals Ignored the Lack of Reliability,

Varying Information, and Mistake.

The Court of Appeals’ Opinion does not address the lack of evidence

regarding cooperators’ reliability, including the lack of any prior experience with

CD2; varying information from the cooperators’ about whether CD2’s out of state

source was in Connecticut, New Hampshire, or Massachusetts; that agents had

already seized a teenager driving a car with Massachusetts registration plates by

mistake; that CD2 told them about receiving drugs from someone driving a dark

SUV, possibly a Jeep and only after CD2 hears Officer Lapierre yelling Dodge truck

does CD2 kind of mumble that “he had previously used a Dodge truck or silver

truck.” See Appendix A.

Conclusion

The Court should grant a writ of certiorari.

Counsel of Record and Other Counsel

Mr. Noah Falk

Mr. Benjamin M. Block

Ms. Julia M. Lipez

Office of the United States Attorney

100 Middle Street

East Tower, 6th Floor

Portland, Maine 04101-4100

/s/ William L. Welch, III