Petition for Writ of Certiorari — Charles E. Garza, Jr., Petitioner v. Nebraska

Supreme Court briefAug 23, 2021

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Supreme Court, U.S.

FILED

AUG 2 3 2021

No. -

OFFICE OF THE CLERK

21-5602

IN THE

SUPREME COURT OF THE UNITED STATES

Charles E. Garza

— PETITIONER

(Your Name)

vs.

State of Nebraska

— RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

Nebraska Supreme Court

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

Charles E. Garza

(Your Name)

P.O. Box 22500, 4201 So. 14th Street

(Address)

Lincoln, Ne.

68542-2500

(City, State, Zip Code)

402.471

•316^B^P

(Phone Number) |J| |||

Questions Presented for Review

1. a. Whether or not the petitioner had an expectation of

privacy in his parked vehicle.

b. If the search and seizure of the petitioner outside of his

vehicle violated his constitutional rights.

2. a. Did the seizures outside of the warrant’s scope beyond the

express limitations imposed by the magistrate violate the

petitioner’s constitutional rights?

b. Whether or not a facially deficient warrant may be cured

by an unaccompanying affidavit.

3. Whether or not probable cause to arrest an individual

suspected of narcotic tracking establishes probable cause to

search his residence without an additional nexus to the

individual’s home.

4. Whether or not the petitioner had a reasonable expectation of

privacy in a 600 lb safe in a residence as luggage does in a

vehicle.

5. Whether or not the petitioner’s constitutional rights were

violated by the district court failing to recuse itself as

required by state and federal law.

LIST OF PARTIES

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

[ ] All parties do not appear in the caption of the case on the cover page. A list of

all parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

RELATED CASES

TABLE OF CONTENTS

Questions Presented for Review

List of Parties

Opinions Below

Table of Contents

Jurisdiction

Constitutional Provisions Involved

Statement of the Case

Reasons for Granting the Petition

Conclusion

Index to Appendices

Appendix A:

Appendix B:

Appendix C:

Appendix D:

Appendix E:

Nebraska Supreme Court Order/ Opinion

Nebraska Court of Appeals Opinion

Petitioner's Reply Brief

Petitioner's Direct Brief

Nebraska Scottsbluff County District's

Court's Judgement and Sentence

Appendix F: Affidavits of probable cause and warrants

Appendix G: Supporting Documents

iii

vii

1-25

"Authorities Cited

Wong Sun v. United States, 371 U.S. 471 (1983)

Terry v. Ohio, 392 U.S. 1, 27 (1968)

United States v. Ross 456 U.S. 798 (1982)

Katz v. United States, 389 U.S. 347 (1967)

Rios v. United States, 364 U.S. 253 (1960)

Carroll v. United States, 389 U.S. 347 (1967)

Coolidge v. New Hampshire, 403 U.S. 443 (1971)

United States v. Taylor, 636 F.3d 461 (2011)

Johnson v. United States, 333 U.S. 10 (1948)

Henry v. United States, 361 U.S. 98 (1959)

Arizona v. Gant, 556 U.S. 332 (2009)

Chimel v. California, 395 U.S. 752 (1969)

Bashir v. Rockdale City, 445 F.3d (2006)

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

Dunaway v. New York 442 U.S. 200 (1979)

United States v. Martinez-Fuerte, 428 U.S. 543 (1976)

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

Mapp v. Ohio, 367 U.S. 643 (1961)

Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics

State v. Stelly,

United States v.

(6th Cir. 2004)

United States v.

(6th Cir. 2005)

304 Neb. 33, 932 N.W.2d 857 (2019)

Carpenter, 360 F.3d 591, 594 (6th Cir.

j 2,14

i 2,11,12

2,4

2,3,6

6,7,11

Brown, 828 F.3d 384 (2016)

Frazier, 423 F.3d 526, 533

United States v. Leon, 468 U.S. 897, 923 (1984)

Groh v. Ramirez, 540 U.S. 551 (2004)

19, 20

21,22,24

Authorities Cited

UNITED STATES CONST. AMEND IV

9,10,16,24 .

UNITED STATES CONST. AMEND V

UNITED STATES CONST. AMEND XIV

Ne. Rev. St. CONST. Art. 1 §3

10, 24

Ne. Rev. St. CONST. Art.il §7

Ne. Rev. St. CONST. Art. 1 §12

10, 16

Neb. Rev. St. § 5-302.11 (A)

Neb. Rev. St. § 28-105

Neb. Rev. St. § 28-202

Neb. Rev. St. §§28-416

vii

Neb. Rev. St. § 28-431

Neb. Rev. St. § 28-1206

Neb. Rev. St. § 29-404

Neb. Rev. St. § 29-404.02

Neb. Rev. St. § 29-404.03

Neb. Rev. St. § 29-814.01

28 U.S.C.A § 455

vii

6,9

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

[ ] For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix

the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

The opinion of the United States district court appears at Appendix

the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

M For cases from state courts:

The opinion of the highest state court to review the merits appears at

Appendix_-__ to the petition and is

[x] reported at A-iq-nnru74

; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

The opinion of the _ Nebraska^. Court Of Appeals

court

appears at Appendix

to the petition and is

p] reported at 2 9 Neb. App, 223 (State v. Garza) ; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

iii'

JURISDICTION

[ ] For cases from federal courts:

The date on which the United States Court of Appeals decided my case

was__________________ ___ [ ] No petition for rehearing was timely filed in my case.

[ ] A timely petition for rehearing was denied by the United States Court of

and a copy of the

Appeals on the following date: ----------------- order denying rehearing appears at Appendix

[ j An extension of time to file the petition for a writ of certiorari was granted

(date)

(date) on

to and including______

in Application No. __ A

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

[ J For cases from state courts:

The date on which the highest state court decided my case was March 21,2021

A copy of that decision appears at Appendix---- h---[ ] A timely petition for rehearing was thereafter denied on the following date:

_________ „___________, and a copy of the order denying rehearing

appears at Appendix __—

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including---------------------- (date) on------------------------(date) in

Application No. __ A

The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

Constitutional Provisions Involved

The pertinent portions of the Constitution are set out below:

United States Const. Amend. IV

“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 warrant 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.”

United States Const. Amend. V

shall be compelled in any criminal case to be a witness

“No person

against himself, nor be deprived of life, liberty, or property without due

process of law; ...”

United States Const. Amend. XIV

“...Nor shall any state deprive any person of life, liberty, or property without

due process of law; nor deny to any person within its jurisdiction the equal

protection of the laws.”

Ne. Rev. St. CONST. Art. 1 §3 Due process of law; Equal

protection

No person shall be deprived of life, liberty, or property, without due process

of law, nor be denied equal protections of the laws.

Ne. Rev. St. CONST. Art. 1 §7 Search and seizure

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 warrant shall issue but upon probable cause, supported by oath or

affirmation, and particularly describing the place to be searched ; and the

person or thing to be seized.

Ne. Rev. St. CONST. Art. 1 § 12 Evidence against self

No person shall be compelled, in any criminal case, to give evidence against

himself,...

Command n. (14c)

An order; a directive. In legal positivism, the sovereign’s express

desire that a person act or refrain acting a certain way, combined

with the threat of punishment for failure to comply. <You are

hereby Commanded>\ etc.

Black’s Law Dictionary (11th ed. 2019)08650

Bryan A. Garner, Editor in Chief

Statutes and Rules

Neb. Rev. St. § 5 - 302.11 (A) Neb. Code of Judicial Conduct

Neb. Rev. St. § 28 -105 Felonies; Classification of felonies; Sentences

Neb. Rev. St. § 28 - 202 Conspiracy, defined; Penalty

Neb. Rev. St. § 28 - 416 Prohibited Acts; Violations; Penalties

Neb. Rev. St. § 28 - 431 Seized without warrant: subject to forfeiture

Neb. Rev. St. § 28 - 1206 Possession of a deadly weapon by a prohibited

person; Penalty

Neb. Rev. St. § 29 - 404 Complaint; filing; procedure; warrant; issuance

Neb. Rev. St. § 29 - 404.02 Arrest without warrant; when

Neb. Rev. St. § 29 - 404.03Arrest without warrant; conditions

Neb. Rev. St. § 29 - 814.01 Search warrant; issuance on affidavit;

procedure

28 U.S.C.A. §455 Disqualification of justice, judge, or a magistrate

judge

Statement of the Case

On February 15, 2017, an information was filed in the Scottsbluff

County District Court charging Garza with conspiracy to distribute

methamphetamine within 1,000 feet of a school zone, conspiracy to

distribute more than 10 grams of methamphetamine but less than 27 grams,

conspiracy to distribute more than 28 grams of methamphetamine but less

than 140 grams, conspiracy to manufacture marijuana, 4 counts of

possessing a firearm by a prohibited person, 1 count of possessing controlled

substance (“Zanex” and Lorazepam), and “Use of Money to violate Drug

Laws” under Neb. Rev. Stat. §28-431 (Reissue 2016). (Tl-8). The first two

conspiracy charges and four counts of possessing a firearm as a prohibited

person are Class ID felonies punishable by a mandatory minimum of 3 years

and up to 50 years of imprisonment. Neb. Rev. Stat. §§28-202 (Reissue

2016); 28-105 (Reissue 2016). Conspiracy to manufacture marijuana is a

Class 2A felony, punishable by up to twenty years imprisonment. Possessing

a firearm as a prohibited person is a class 3 felony, punishable by nine

months post-release supervision to four years imprisonment and two years

post-release supervision or twenty-five thousand dollars fine, or both, if

imprisonment is imposed. Neb. Rev. Stat. §§28-1206(3)(a) (Reissue 2016);

vii

28-105 (Reissue 2016). Possessing controlled substances like Zanex and

Lorazepam are Class IV felonies, punishable by up to two years

imprisonment and twelve months post-release supervision, or ten thousand

dollars fine or both. Neb. Rev. Stat. §§ 28-416(3) & 28-105 (Reissue 2016).

Finally the original information also provided notice of its intent to seek

forfeiture of various property seized from Mr. Garza and his family

members. After a Motion to Quash was successfully litigated, an Amended

information was filed which amended the conspiracy charges to distribution

charges alleging the same amounts and locations. (T25-30) As litigation

proceeded, the Information was further amended. On September 21, 2018,

the State filed a “Second Amended Information and Petition for Forfeiture,”

which reduced the 1C distribution charge alleging an amount between 28

and 140 grams to an amount between 10 and 28 grams. (T85-89). It also

abandoned the marijuana manufacturing allegation and simple possession

charges relating to Zanex and Lorezepam. (Id.) On February 22, 2019,

another Amended Information was filed dropping the school zone allegation

contained in count 1, making the resulting charge a Class 2 felony,

punishable by one to fifty years imprisonment. Neb. Rev. Stat. §§ 28416(l)(a); 28-105 (Reissue 2016).

vii

At trial, Garza was found not guilty of one of the firearms charges and

found guilty of simple possession of methamphetamine rather than

distribution between 10 and 28 grams. (T150-153). Sentencing occurred on

April 18, 2019, after an investigation by the adult probation office. (T155159). The Court ordered counts 5, 6, and 7 to be served concurrent to one

another but consecutive to counts 1, 2, and 3. Further, counts 1, 2, and 3

were ordered to be served consecutive to one another. (Id.).

vii

Reasons for Granting the Petition

The unlawful seizure and false imprisonment of Mr. Garza

was unconstitutional and violated due process

The Nebraska Courts, to include, the Nebraska Supreme Court,

Nebraska Court of Appeals, and the Scottsbluff County District Court, in

Nebraska; all said courts involving the petitioner’s convictions disregard

constitutional safeguards guaranteed by the 4th, 5th, and 14th Amendments, of

the United States Constitution, and Nebraska Constitution §3, §7, and §12

respectively.

Throughout the course of the trial there was a multitude of instances

that established the petitioner did not want to distribute and was not going to

show up. The jury concluded this as well by finding the arrest, count 3, of

only possession without the intent to distribute (729: 9-10). From Detective

Jackson, who was in charge of the entire operation (296: 10-21), to

Investigator Holcomb who located the defendant (494: 15-24), to even the

Prosecuting Attorney dave eubanks (266: 8-16). Although one of the

petitioner’s vehicles was initially located, it was not seized as there was no

suggestion or belief that it contained contraband (495: 1-6). When the

defendant was eventually located, probable cause was already lacking due to

the informant’s false claim of the defendant not appearing because of a flat

tire. It is also important to note that the informant did not disclose a vehicle

description or location and that he was known to police as a liar (370:21-25,

371:1-9). This was also corroborated through his own testimony and

documentation (425: 12-16, 534: 2-4). Crucial requirements in assessing

probable cause are based on an informant’s veracity and accuracy.

Accordingly, the arrest warrant procedure “serves to insure that the

deliberate, impartial judgment of a judicial officer will be interposed

between the citizen and the police to assess weight and credibility of

information the complaining officer adduces as probable cause” Wong Sun

v. United States 371 U.S. 471 (1963). “[Pjolice must, whenever practicable

obtain advance judicial approval of searches and seizures through the

warrant procedure....” Terry v. Ohio 392 U.S. at 20, also Katz v.United

States, 389 U.S. 347 (1967). All of the accounts corroborated that it was the

petitioner they were searching for, not his vehicle. Although vehicles do

have a reduced expectation of privacy, they continue to retain securities

afforded by the Constitution. In justifying the petitioner’s vehicle search, the

Nebraska Court of Appeals relied on United States v. Ross 456 U.S. 798

(1982) which held that the automobile exception allows for “a warrantless

search of a mobile vehicle when there is probable cause to believe [the]

vehicle contains evidence of a crime.” The officers in the present case

waited until the petitioner entered his vehicle, asked him to exit, and then

seized and searched him. They then transported the petitioner to the police

station and towed the vehicle to a secure lot. The Government in the present

case argued that as soon as the defendant was inside of the automobile, the

vehicle would be subject to the “automobile exception”. If officers were

allowed to lie in wait for an individual to appear in a location they desired to

search, it could be used to circumvent the warrant requirement creating a

serious and recurring constitutional threat to the privacy of countless

citizens. The petitioner was entitled to and did have a reasonable expectation

that his parked vehicle would be free from disturbance. As stated in Katz V.

United States, supra, quoting Rios v. United States 364 U.S. 253 (1960),

“What a person seeks to preserve as private, even in an area accessible to the

public, may be constitutionally protected. The Fourth Amendment protects

people not places and whenever an individual may harbor a reasonable

‘expectation of privacy,’ id. at 361, 88. S. Ct. at 507, he is entitled to be free

from unreasonable governmental intrusion.’ ‘[n]o less than an individual...

in a taxicab,’ or an individual in a phone booth ‘who occupies it, shuts the

door behind him, and pays the toll’ is entitled to the protection of the Fourth

Amendment.” Similarly, the Court in Rios held that the defendant had an

expectation of privacy inside of the vehicle when he was questioned outside

of his taxicab. The petitioner in the present case demonstrated the same

legitimate expectation of privacy by locking his car up with the keys inside

when asked to exit the vehicle before he was seized by Officer McBride

(279: 1-24). If it was the petitioner’s vehicle officers believed contained

contraband, there was more than adequate time and personnel to secure the

automobile before the petitioner arrived (495: 1-6). Prior to the petitioner’s

arrival, the Honda was under constant surveillance by multiple officers

illustrating the complete absence of exigent circumstance and any exception

to the warrant requirement. United States v. Ross 456 U.S. 798 (1982)

(quoting Carroll, supra, stated that **In defining the nature of this

“exception” to the general rule is that “[i]n cases where the securing of a

warrant is reasonably practicable, it must be used,” id., at 156, 45 S. Ct., at

285, the Court in Carroll emphasized the importance of the requirement that

*808 officers must have probable cause to believe that the vehicle contains

contraband. Both of the vehicles in Ross and Carroll were also pulled over

on a public roadway, while the petition’s vehicle had been parked for a

significant period of time while the officers observed innocuous activity

(494:15-25, 495:1-6). Sergeant Shulte, who was one of the officers in charge

of securing the vehicle until the tow truck arrived, confirmed that it only

took about 15 minutes after being summoned thus eliminating any pretense

of exigency (285: 18-25, 286: 1 -4). Police cannot employ a pretext to

escape Fourth Amendment prohibitions and cannot rely on an exigency that

they created. The substantial difference of time between the buy/bust

initiation at 1:35pm and the arrest at 5:50pm as described and documented

by Det. Jackson himself expressly indicates a 4 hour variance (397:7-13,

Arrest affidavit Appendix E). It also substantiates that the petitioner was

not arrested until after the search of the Honda contrary to later claims.

The officers realized that the petitioner was not going to consummate the

deal or they simply would have stopped him on a public road when he left

the hotel as they had “planned”. A pernicious buy/ bust procedure as

described by Det. Jackson would allow any officer to use an informant to

coerce a hypothetical transaction then send other officers to find that

entrapped individual in any location, at any time and seize and search for

evidence without a warrant. The government also made no effort to show

that circumstances precluded the obtaining of a warrant. If officers believed

that they needed a warrant to search the vehicle why did they not believe

they did not need one to seize it? Seizures of automobiles are a meaningful

interference with an individual’s possessory interests and their continuing

means of transportation. For this reason, the duty of a magistrate is not

delegable to a police officer. By equating a police officer’s estimation of

probable cause with a magistrates utterly disregards the value of a

magistrate. Even if officers believed that they had probable cause, “probable

cause in itself does not justify a warrantless search and seizure of evidence

since absent exigent circumstance a search warrant must first obtained from

an impartial officer.” Coolidge v. New Hampshire 403 U.S. 443 (1971);

(Neb. Rev. Stat. §29-404).

Court records also support that the Honda’s search was not considered

an inventory search due to the search warrant being sought and that it was

not described as so at the suppression hearing. It is the government’s burden

to establish that the inventory exception applies. Akin to United States v.

Taylor 636 F.3d 461, 464 (8th Cir. 2011), “... the police were engaging in

their criminal investigatory function, not their caretaking function in

searching the defendants vehicle.” Katz ,supra, contributed to this stating

“routine inventories of automobiles intrude upon an area in which the private

citizen has a reasonable expectation of privacy” Thus despite there benign

purpose they constitute “searches” for purposes of the Fourth Amendment.

Security against unlawful search and seizures are more likely to be attained

by resort to a warrant than by reliance upon the caution and sagacity of petty

officers while acting under the excitement that attends the capture of persons

accused of a crime.

It may also be assumed that Officer McBride acted in good faith in

seizing the petitioner, but officer McBride could have not have been acting

in good faith believing that Det. Jackson had probable cause as the probable

cause wasn’t “described” for the seizures until after Det. Jackson had spoken

with the petitioner. If the subjective good faith alone were the test, the

protections of the Fourth Amendment would evaporate and people would be

‘secure in the persons, houses, papers, and effects,’ only in the discretion of

police. The unlawful seizure of the petitioner would also not be considered

as incident to arrest due to the fact the petitioner’s statement was included in

the affidavit to search the Honda. As explained in Coolidge v. New

Hampshire, supra, the seizure of the car cannot be justified as incidental to

arrest which took place at another location. Even assuming, arguendo, that

police could have properly made a search when they arrested petitioner, they

could have not done so after its removal. Pp 2032 - 2033. Under similar

circumstances present here - where the police had for some time known of

the probable role of the car in crime, the defendant had had ample

opportunity to destroy incriminating evidence, the car was guarded at the

time of arrest and the petitioner had no access to the car. This supports that

Det. Jackson had the petitioner seized in an attempt to find probable cause.

The seizure led to the interrogation, the interrogation led to the search

warrant, the search warrant led to the arrest. “An arrest is not justified by

what the subsequent search discloses” Johnson v. United States 333 U.S. 10

(1948). Probable cause is necessary to effectuate a seizure not a seizure to

establish probable cause. “The lawfulness of the arrest in this case must be

tested by the Fourth Amendment, and since the arrest was without warrant, it

must be based on probable cause” (Henry v. United States, 361 U.S. 98

(1959); Neb. Rev. St. §29-404.03)).

The search incident to arrest exception to the Fourth amendment

requirement as defined in Arizona v Gant, 556 U.S. 332(2009) and Chimel

v. California, 395 U.S. 752 (1969) also did not justify the search in the

present case. Both cases agreed that “... police may search incident to arrest

only the space within an arrestee’s ‘immediate control,’ meaning the area

from within which he might gain possession of a weapon or destructible

evidence.” Chimel 395 U.S., at 763, 89 S. Ct. 2034. As with Gant and

Chimel, the petitioner was not subject to arrest until after Det. Jackson had

the petitioner seized, and after the defendant was transported to the police

station, and after Det. Jackson interrogated the petitioner, and after Det.

Jackson sent the petitioner to jail, and after Det. Jackson drafted the

affidavit, and after Det. Jackson drafted the search warrant, and after Det.

Jackson found a judge to sign it, and after Det. Jackson traveled to the police

impound, and after Det. Jackson searched the vehicle (Appendix F). This

reiterates the point that the vehicle was not suspected of containing

contraband and under constant surveillance of multiple officers who had an

extensive period of time to seize the vehicle prior to the petitioner entering it

(494:9-25, 495:1-6). In addition, there was no contraband found on the

petitioner’s person either which should have been considered another strike

against the informant’s credibility and reliability. Meanwhile to all of this,

the petitioner was already in jail being strip searched under a false charge so

there was a necessity to find grounds for his imprisonment. If nothing was

found in the Honda then additional warrants would have to be signed until

his confinement was rationalized. The U.S. and Nebraska Constitution both

mandate that officers must have probable cause to place a person in custody

(Neb. Rev. Stat. §29-404.02, U.S. Const. Amend. IV). It is also clearly

established that an arrest without probable cause violates the 4th Amendment

and it is also in direct violation of Neb. Rev. Stat. § 29-404 stating ...

“Whenever a complaint shall be filed with the magistrate, charging any

person with the commission of an offense against the laws of this statute, it

shall be the duty of such magistrate to issue a warrant for the arrest of the

person accused, if he or she has reasonable grounds to believe that the

offense has been committed.” This was not followed in the present case.

When the petitioner was seized outside of his vehicle, Officer McBride

would not disclose why he was seizing the petitioner only continually

repeating that he ‘did not know why’ or ‘know what was going on’ (279: 124, E44). This is another flagrant violation of the Constitution which states

‘The right of the people to be secure in their persons, houses, papers and

effects against unreasonable searches and seizures shall not be violated.’

(U.S. Const. Amend. IV; Neb. Rev. St. CONST. Art.l §7) and ‘No State

shall deprive any person of life, liberty, or property without due process of

law; nor deny to any person within its jurisdiction the equal protection of the

laws'(U.S. Const. Amend. XIV; Neb. Rev. St. CONST. Art. 1 §3).

Accordingly, in Bashir v. Rockdale City 445 F.3d 1323, 1332, 11th Cir. 2006

it was held that “if an arresting officer does not have the right to make an

arrest, he does not have the right to use any degree of force in making that

arrest.” This would include the actions of Officer McBride when he

handcuffed and forced the petitioner into his vehicle to be interrogated by

Det. Jackson at the police station. Any reasonable officer in McBride’s

position would have known he could not have placed the petitioner under

arrest. If Det. Jackson genuinely believed that he had probable cause, he

should have applied for an arrest warrant. Generally the Constitution

requires that someone independent of the police and prosecution review a

warrant application to determine whether there is “probable cause to believe

a citizen guilty” of a crime and to issue an arrest warrant. Coolidge v. New

Hampshire, 403 U.S. 443 (1971). The Fourth Amendment also protects “the

right of every individual to the possession and control of his own person,

free from all restraint or interference from others, unless by clear and

unquestionable authority of law.” Terry v. Ohio 392 U.S. 1 (1968). (288: 1525, 289: 1-5) Under pressure to make cases and determined to find probable

cause, Det. Jackson would not allow the petitioner to be uncuffed, call out or

leave during the interrogation. When the petitioner adamantly inquired as to

why he was being held Det. Jackson stated that he would “get to that later”

but wanted information for the petitioners supposed release (353: 10- 25,

E79). For an officer to hold an individual for the sole purpose of providing

information is a blatant disregard for any citizen’s constitutional rights. ‘No

person shall be held... nor be compelled in any criminal case to be a witness

against himself, nor be deprived of life,liberty, or property without due

process of the law” (U.S. Const., Amend. V; Neb. Rev. St. CONST. Art. 1

§ 12). “.. .while the police have the right to request citizens to answer

voluntarily questions concerning unsolved crimes they have no right to

compel them to answer.” (emphasis added) Miranda v. Arizona 384 U.S.

436 (1966). “nothing is more clear than the Fourth Amendment was meant

to prevent wholesale intrusions upon the personal security of our citizenry,

whatever these intrusions *727 be termed ‘arrests’ or ‘investigatory

detentions.’” This was made explicit in Terry v. Ohio, 392 U.S. 1, 889

(1968). The only statement that was used from the interrogation that

exhibited what Det. Jackson believed was probable cause for the search

warrant was ‘Charles told me that there was a backpack in his car that

belongs to a friend that he dropped off at that Circle S Lodge, that he does

not know what the contents of the backpack are.’ After the search was

completed, Det., Jackson later conceded that “The backpack contained

nothing of evidentiary value” (354: 15 - 25, 355: 1-4). Against Const.

Amend. IV, V, and XIV Det. Jackson unlawfully held the defendant in his

attempt to establish probable cause which was condemned in Dunaway v.

New York 442 U.S. 200 (1979). The Court in Dunaway suppressed the

defendant’s confession which had been obtained when he was taken into

police custody without a warrant or probable cause. In spite of the present

petitioner’s statement being innocent Det. Jackson included it along with the

petitioner’s unlawful seizure for almost half of the Honda’s search warrant

affidavit. Removing this substantial section of the affidavit would only leave

the initial portion of the document explaining his need of an arrest warrant

not a search warrant and the requirement of a magistrate to determine if

there was probable cause. Prior review may also “prevent hindsight from

coloring the evaluation of the reasonableness of a search and seizure” United

States v Martinez-Fuerte, 428 U.S. 543, 565, 96 S. Ct. 3074, 3086, 49 L. Ed.

2d 1116 (1976). Moreover, when the search has been productive the

hindsight of the magistrate is more likely to be distorted. In Dunaway v.

New York, supra, the defendant was taken to a police car, transported to a

police station, and placed in an interrogation room. There it was held clear

that the detention was “in important respects indistinguishable from a

traditional arrest” and therefore required probable cause or judicial

authorization to be legal. Such involuntary transport to a police station for

questioning is sufficiently like arrest to invoke the traditional rule that arrests

may constitutionally be made only on probable cause. A seizure is more

likely to be a greater intrusion than an immediate search especially without

exigent circumstance. Situations such as these are a prime example in which

the exclusionary rule should be applied to discourage this ‘jail now, justify

later’ conduct that is clearly not novel (162:4-25, 163:1-12, Addendum G).

Regarding this, the exclusionary rule requires the suppression of not only the

evidence improperly seized, but “extends as well to the indirect as the direct

products of such invasions.” Wong Sun, 371 U.S. at 484, 83 S. Ct. 407. In

Wong Sun, supra, narcotics were suppressed for the reason that their

discovery stemmed directly from a violation of Toy’s Fourth Amendment

rights. Id. 371 U.S. at 487-88. Thus, while the government might lose

evidence is some cases, it is evidence they were not entitled to under the

Constitution. As stated in Weeks v. United States, 232 U.S. 383 (1914) “If

evidence seized in violation of the Fourth Amendment can be used against

an accused his right to be secure against such searches and seizures, is of no

value and *** might as well be stricken from the Constitution.” 232 at page

393, 34 S. Ct. at page 344. “.. .experience has taught us that it is the only

effective deterrent to police misconduct in the criminal context, and that

without it the Constitutional guarantee against unreasonable searches would

be a ‘mere form of words’” Mapp v. Ohio, 367 U.S. 643, (1961). Therefore,

if conduct outside the realm of a lawful investigation falls beyond the pale of

the Fourth Amendment, any attempt to exploit it by retrieving its fruits for

subsequent use in a criminal prosecution should be condemned and

suppressed under the same authority. The seizure of the petitioner was

unauthorized, unlawful, and violated the guarantee of due process and

securities provided by the Constitution. For the reasons presented herein the

petitioner pleads the Court to grant certiorari and find the motion to suppress

for the Honda Accord and subsequent warrants derived from its issuance

appropriate to deter this type of reckless and careless behavior.

The unconstitutional search and seizure of the

petitioner’s vehicle.

Firstly, the search warrant for the Honda only commands the search

and seizure of a cell phone (Addendum E). The Fourth Amendment provides

that “no warrants shall issue but upon probable cause... particularly

describing the place to be searched, and persons or things to be seized” (U.S.

Const. Amend. IV; Neb. Rev. St CONST. Art. 1 §7). The requirement that

warrants shall particularly describe the things to be seized makes general

searches impossible and prevents the seizure of one thing under a warrant

describing another. As to what is to be taken, nothing is left to the discretion

of the officer executing the warrant. The Fourth Amendment’s particularity

requirement is not a mere technicality; it expresses constitutional command

and “confines an officer executing a search warrant strictly within the

bounds set by the warrant” Bivens v. Six Unknown Named Agents of

Federal Bureau ofNarcotics, 403 U.S. 388 (1971). The language ofthe

warrants affidavit also indicates where Det. Jackson suspected to find

contraband within the vehicle. When the backpack was searched and nothing

found it should have established an even greater representation of probable

cause and his persistence in a general search for evidence to convict upon.

Outside of the scope of both the warrant and affidavit, the petitioner’s driver

license was also taken violating the Fourth Amendment’s particularity clause

once again. Along with these affronts to the Constitution, the Honda’s search

warrant affidavit did not state that the automobile was involved in any sort

of illegal activity or why its seizure was warranted. Probable cause

undoubtedly requires a nexus between suspected criminal activity and the

place to be searched. The word automobile is not a talisman in whose

presence the Fourth Amendment fades away and disappears. Det. Jackson

also failed to be present at the Honda’s location to establish probable cause

for the seizure. Accordingly, under the Fourth Amendment, a warrant or

seizure without probable cause is per se unreasonable. The described

“probable cause” was also only eventually acquired through the illegal

seizure of the petitioner. Between the lack of probable cause and lack of

particularity the Honda search warrant fails the requirements of the

Constitution. Disregarding this, the Nebraska Court of Appeals decided to

justify these unconstitutional acts under the “cure by affidavit” doctrine held

in State v. Stelly, 304 Neb. 33 (2019). State v. Stelly, supra, that holds “an

inadvertent defect in a search warrant may be cured by reference to an

affidavit if the affidavit is incorporated in the warrant or referred to in the

warrant and the affidavit accompanies the warrant” (emphasis added). While

the affidavit may have been referenced in the warrant, the affidavit failed to

accompany the warrant for the search due to being sealed (Appendix E, G).

If a warrant is facially defective and the affidavit does not accompany the

warrant to “cure” the defects, an objectively reasonably belief or “good

faith” in a search or seizure outside of a warrants’ scope of only a cell phone

would be impossible. Lack of the accompanying affidavit may also be

corroborated by the inventory list which precisely stated that only the

warrant and inventory list were present (Appendix F). The driver’s license

that was listed on the Honda’s Inventory was also seized beyond the warrant

and affidavit’s scope and later used as a basis for subsequent searches

bearing similar deficiencies. For the reasons presented here, the petitioner

pleads the Court to validate the motion to suppress for the Honda Accord

along with the subsequent search warrants derived from its issuance and

vacate the petitioner’s convictions.

The unconstitutional search of the Schmid Dr.

residence and petitioner’s RV

The following search warrant for the Schmid dr. residence also fails

by multiple Constitutional standards. Firstly, the warrant that was initially

requested for the residence did not include firearms. This is due to the

petitioner not being suspected of firearms as validated through multiple

sources (381: 2-25, 382: 1-2, 426: 10-17). In United States v. Carpenter,

supra, it was held “that because the Fourth Amendment requires a search

warrant to particularly... describe the things to be seized., the affidavit

supporting the search must demonstrate a nexus between the evidence

sought and the place to be searched'^60 F.3d at 594. The connection

between the residence and the evidence of wrong doing must be specific and

concrete, not “vague” or “generalized”, Id. At 595. “If the affidavit fails to

include facts that directly connect the residence with suspected drug dealing

activity, or the evidence of this connection is unreliable, it cannot be inferred

that drugs will be found in the defendants home” United States v. Brown,

828 F.3d at 384 (2016). The Court in United States v. Frazier, 423 F.3d 526,

533 (6th Cir. 2005) concurred the same stating “we have never held that a

suspects’ status as a drug dealer, standing alone, gives rise to a fair

probability that drugs will be found in his home. Rather, we have required

some reliable evidence connecting the known drug dealer’s ongoing activity

to the residence..In the present case, the search warrant affidavit

contained no evidence that the petitioner distributed narcotics, that he ever

used it to store narcotics or firearms, or that any suspicious activity had ever

taken place there. “Probable cause to arrest a suspect does not necessarily

establish probable cause to search the suspect’s home” United States v.

Brown,supra,. The affidavits for the Schmid dr. residence and the RV were

also sealed. Even if the affidavit was present for argument’s sake, it was so

lacking in indicia of probable cause that the officers could not in good faith

relied on the warrant in conducting the search of the residence. With no

suspicion there is most definitely not probable cause. Det. Jackson himself

testified that it was only after they were discovered they were seized “out of

an abundance of caution” (58:5 - 59:16). In addition to all of this, with the

combination of the unwarranted seizure of the petitioner’s driver’s license

and the unlawful seizure of the petitioner to establish the believed probable

cause for the search of the residence, there would have been an insufficient

nexus to lead to the Schmid dr. home. “The review of the sufficiency of the

evidence supporting probable cause is limited to the information presented

in the four comers of the affidavit United States v. Frazier, supra,. The very

fact that a second warrant was sought to include firearms illustrates Det.

Jackson’s determination in a general search for evidence to convict upon

against the express limitations of the Constitution. General searches violate

fundamental rights and are forbidden by the Constitution. The search of the

Schmid dr. residence may also be considered a general search due to the

multiple unrelated items that were seized outside of the warrant’s scope

without probable cause. Items include a DVR, 3 cameras, a box of business

cards, a hard drive, a money clip, a tablet portable wifi, 2 laptops, a

briefcase, a sword, and a vehicle title (Appendix E). When officers are

allowed to search in wide exploratory searches without consequence, it only

encourages future constitutional violations to become routine.

Unsurprisingly, the second search warrant for the Schmid dr.

residence also failed to include safes or firearms. By the “cure by affidavit”

standard the warrant may have been saved but Det. Jackson, who applied for

the warrant, failed to return to the scene of the search leaving the searching

officers without an affidavit or even a warrant to abide by (330: 14- 16).

United States v. Leon, 468 U.S. 897 (1984) precluded qualified immunity

for the officer because he was the leader of the search who did not read the

warrant and satisfy himself that he understood the scope and limitations and

that it was not obviously defective 298 F.3d at 1027.ftWhere a warrant is

sufficiently facially deficient... executing officers cannot reasonably

presume it to be valid” Leon, 468 U.S. at 923. Similar to Groh v. Ramirez,

540 U.S. 55 (2004), the search warrant did not meet the Fourth

Amendment’s unambiguous requirement that a warrant “particularly

describ[e] ... the persons or things to be seized.” The application adequately

describing those things does not save the warrant. Fourth Amendment

interests are not necessarily vindicated when another document says

something about the objects of the search, but that documents contents are

neither known to the person whose home is being searched nor available for

her inspection. A search or seizure without an affidavit of probable cause or

even a warrant is undoubtedly forbidden by the Fourth Amendment and a

violation of due process. This would include the two innocent people who

were arrested and charged when they returned home from work (605: 17-25,

606: 1-23).

Subsequent to the search of the Schmid dr. residence, Det. Jackson

discovered the physical address of petitioner. Absent legitimate probable

cause or a nexus and providing only a generalization, Det. Jackson obtained

a warrant for the RV. This next search of the RV led to another locked safe

which was bolted to the floor and also not included in the warrant. After

being destructively removed, the safe was transported to the police station

where it was unconstitutionally opened without a warrant (E73). The

container was not open to the public and without an exigent circumstance it

had an expectation of privacy society would recognize as reasonable thus

requiring a separate warrant. The petitioner and his family held this same

reasonable expectation of privacy by bolting the safe to the floor of the RV

to protect the personal effects within (418: 3-25, 419: 1-25, 420: 1-7, E84,

Appendix E). It should also be noted that Det. Jackson was not present

during the opening of the RV safe either and the affidavit did not accompany

the warrant (Appendix E). If a person’s luggage in a vehicle, which has a

reduced expectation of privacy and a myriad of exceptions, possesses

constitutional protection, would not a locked safe bolted to the floor of a

home which is considered the very essence of which the Fourth Amendment

is based upon?

Included in the litany of Constitutional violations in the present case,

the judge presiding over the not one but two suppression hearings failed to

recuse himself when motioned to do so. Just recently discovered by the

petitioner and under the Nebraska Revised Code of Judicial Conduct, a

judge must recuse himself from a case if the judge’s impartiality might be

reasonably be questioned §5-302.11(A). The right to an impartial judge is

guaranteed under the Due Process Clauses of the U.S. and Nebraska

Constitution (U.S Const. Amend. IV; Neb. Rev. St. CONST. Art. §3; 28

U.S.C.A §455). This was a violation of the petitioner’s due process due to

the initial search warrant for the Honda being signed by the same judge who

presided over the suppression hearings. In the event that the initial warrant

for the Honda would be found to be invalid, it would nullify subsequent

warrants allowing the petitioner who had already been detained for two

years and his innocent family who had already been prosecuted the

opportunity to be vindicated and the county along with the officers involved

being liable for their conduct. This would be more than a sufficient cause

for the same deciding judge to have a strong personal interest of trial and

unable to hold proper balance between State and the defendant, thus creating

structural error and a violation of due process (U.S.C.A. Amend IV; Neb.

Rev. St. CONST. Art. 1 §3). With the presiding judge acting as ‘an adjunct

law officer’ /suppression remains an appropriate remedy where the issuing

magistrate wholly abandoned his judicial role” United States v. Leon, supra,.

This would also be supported by the Honda Accord search warrant that was

signed after the defendant had already been strip searched and jailed along

with his vehicle seized. For the foregoing reasons, petitioner respectfully

requests that the Court determine the search warrants unsupported by

probable cause, reverse the Scottsbluff District Court’s along with the

Nebraska Court of Appeals’ denial of motion to suppress, and vacate the

aforementioned convictions.

Conclusion

The petition for the writ of certiorari should be granted.

Respectfully submitted,

Petitioner pro se

Charles E. Garza

P.O. Box 22500

Lincoln, Ne 68542

Ph: 402.471.3161

Date: August 1*^?£021

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.