Petition for Writ of Certiorari — Shaun Short, Petitioner v. United States

No. ___________

In the Supreme Court of the United States

____________________

SHAUN SHORT,

Petitioner,

vs.

STATE OF IOWA,

Respondent.

____________________

On Petition for a Writ of Certiorari to

The United States Supreme Court

____________________

PETITION FOR A WRIT OF CERTIORARI

____________________

PARRISH KRUIDENIER DUNN GENTRY

BROWN BERGMANN & MESSAMER L.L.P.

Alfredo Parrish

Counsel of Record

2910 Grand Avenue

Des Moines, Iowa 50312

Telephone: (515) 284-5737

Facsimile: (515) 284-1704

Email: aparrish@parrishlaw.com

i

Question Presented for Review

Does the automobile exception to the warrant requirement extend to a

parked and disabled car, or is it limited to its original justifications?

Is a defendant entitled to a hearing under Franks v. Delaware if a search

warrant contains material misrepresentations and omits key facts with regard to a

witness’ credibility?

ii

Related Proceedings

I.

United States v. Short, S.D. Iowa 4:19-CR-00080-001; Judgment entered

II.

United States v. Short, Eighth Cir. Ct. App. No. 20-1533; Judgment entered

III.

United States v. Short, Eighth Cir. Ct. App. No. 20-1533; Order Denying

March 10, 2020.

June 29, 2021.

Petition for Rehearing entered August 4, 2021.

iii

Table of Contents

Related Proceedings.............................................................................................................................. ii

Table of Authorities ............................................................................................................................. iii

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

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

Constitutional and Statutory Provisions Involved ................................................................... 1

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

Reasons Relied Upon for Allowance of the Writ ........................................................................ 6

I.

The Eighth Circuit Panel’s Endorsement of a Limitless Automobile Search

Exception Represents a Significant Departure from the Accepted and Usual

Course of Judicial Proceedings ........................................................................ 6

II. Short was Entitled to a Franks hearing; the Eighth Circuit Panel Wrongly

Rejected Clear Evidence of False Statements and Material Omissions........ 9

Conclusion .............................................................................................................................................. 11

Appendix Contents

United States v. Short, S.D. Iowa 4:19-CR-00080-001, Order Denying Motion to

Suppress ....................................................................................................................... A3

United States v. Short, S.D. Iowa 4:19-CR-00080-001, Judgment entered March 10,

2020 .............................................................................................................................. A17

United States v. Short, Eighth Cir. Ct. App. No. 20-1533; Judgment entered June

29, 2021 ........................................................................................................................ A28

United States v. Short, Eighth Cir. Ct. App. No. 20-1533; Order Denying Petition

for Rehearing En Banc entered August 4, 2021 ......................................................... A37

Table of Authorities

Cases

Arizona v. Gant, 556 U.S. 332 (2009).......................................................................... 13

Cady v. Dombrowski, 413 U.S. 433 (1973).................................................................. 11

California v. Carney, 471 U.S. 386 (1985). ........................................................... 11, 13

iv

Carrol v. United States, 267 U.S. 132 (1925). ............................................................ 11

Chambers v. Maroney, 399 U.S. 42 (1970). ................................................................ 11

Collins v. Virginia, 138 S. Ct. 1663 (2018)............................................................ 11, 13

Coolidge v. New Hampshire, 403 U.S. 443 (1971). ............................................... 12, 13

Franks v. Delaware, 438 U.S. 154 (1978). ............................................................ 14, 15

Gessell v. State, 751 So.2d 104 (Fla. Dist. Ct. App. 1999). ........................................ 16

Raulerson v. State, 714 So. 2d 536 (Fla. Dist. Ct. App. 1998). .................................. 16

United States v. Ross, 456 U.S. 798 (1982). ............................................................... 12

Constitutional Provisions

U.S. Const. amend. IV ......................................................................................... passim

1

Opinions Below

The district court in the Southern District of Iowa entered judgment against

Short on March 10, 2020. United States v. Short, S.D. Iowa No. 4:19-CR-00080-001,

Mar. 10, 2020. On June 29, 2021, the Eight Circuit affirmed the district court’s

ruling in a published opinion. United States v. Short, 2 F.4th 1076 (8th Cir. 2021).

On August 4, 2021, the petition for a rehearing en banc was denied. United States

v. Short, Eighth Cir. Ct. App. No. 20-1533, Ord. Denying Pet. for R’hrg. Aug. 4,

2021.

Jurisdiction

Jurisdiction of the district court was pursuant to 18 U.S.C. § 3231. Judgment

entered March 10, 2020. The Notice of Appeal was filed March 12, 2020. United

States v. Short, S.D. Iowa No. 4:19-CR-00080, DCD 99 (Mar. 12, 2020). Jurisdiction

for the Eighth Circuit was pursuant to 28 U.S.C. § 1295(a)(1). Judgment entered

June 29, 2021. This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1).

Constitutional and Statutory Provisions Involved

The Fourth Amendment to the United States Constitution

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.

2

Statement of the Case

Short’s case involves two compelling questions that merit review by this Court:

whether the automobile exception to the warrant requirement can be expanded to

cover a parked and disabled car in a residential apartment parking lot, and whether

record proof that law enforcement made material misrepresentations and omissions

on a warrant affidavit entitles a defendant to a hearing under Franks v. Delaware.

The panel decision of the Eighth Circuit failed to adequately address both these

issues, therefore, the decision represents a significant departure from the accepted

and usual course of judicial proceedings. 1

Short came to the attention of law enforcement on April 16, 2019, in response

to a report of a shooting in progress outside of his apartment complex in Des Moines,

Iowa. There were four 911 calls related to this shooting. 2 The first 911 caller stated

that the shooter was leaving the apartment complex in a black Nissan with no front

or rear license plates, with the driver’s side mirror hanging off the side of the vehicle.

The shooter was a black male carrying a handgun and wearing a black or blue shirt

and white gloves. (Mot. Supp. Def. Ex. E1). The shooter fit the description of

Emmanuel Toe, who was arrested near the scene and charged with intimidation with

a deadly weapon. The second 911 caller stated that she heard gunshots and believed

a black Dodge Charger was involved; however, she never identified a shooter. (Mot.

1 See Sup. Ct. R. 10(a).

These were admitted during a motion to suppress hearing as Defense Exhibits E1

through E4, and Government Exhibits 2 through 5. For clarity, Short will refer to

only the Defense Exhibits in his brief.

2

3

Supp. Def. Ex. E2). The third 911 caller did not see the shooting, but after hearing

shots fired saw a black male with blue pants and a white tee-shirt –Short – standing

next to a black Dodge Charger. (Mot. Supp. Def. Ex. E3). Finally, the fourth 911 caller

described two men wearing black – Toe and Samuel Atoyebi – who were involved in

the shooting. She observed one of these men run away from the scene, and the other

drive away in a black car with no plates. (Mot. Supp. Def. Ex. E4).

Law enforcement officer (LEO) Miller was the first to arrive on the scene. (Mot.

Supp. Def. Ex. A at 1-2:30). Miller drove past Atoyebi and the black Nissan with no

license plates and a dangling driver’s side mirror (id.) and continued further into the

parking lot where he encountered Short near his black Dodge Charger. (Id. at 2:073:30). Miller detained Short, patted him down, and cuffed him. Miller questioned

Short, and Short explained that he had been shot at by two men in a black Nissan.

(Id. at 4:00-9:00). While Short was being questioned, a witness approached the LEOs

detaining Short and stated that the shooter was a black male, wearing a black or blue

shirt and white gloves, with shorter dreads, in a white Nissan with no license plates

and the driver’s side mirror hanging off. (Id. at 14:15-15:40). This witness stated that

Short was not the shooter. (Mot. Supp. Def. Ex. B at 10:00-13:00).

LEOs decided to search the vehicle because it smelled like marijuana. (Mot.

Supp. Def. Ex. A at 15:00-16:00). At the time the car was searched, the keys had

already been secured and there was a flat tire. (Id. at 13:00-14:00). A personal-use

amount of marijuana (two grams) was found in the car. (Mot. Supp. Def. Ex. D at 6;

Supp. Hrg. Tr. 38:4-17).

4

Meanwhile, other officers encountered and questioned Toe and Atoyebi. Toe –

the man that multiple callers identified as the shooter – offered absurd explanations

for his presence at the apartment complex. First, he stated that he was at the Hy-Vee

gas station with “Adam.” (Mot. Supp. Def. Ex. C at 11:00-12:00, 19:00-20:00). While

there, he claimed they met Short, and Short pulled a gun over a $5 debt. (Id.). Toe

claimed he told Short they should fight without guns and told Short to follow him

back to his apartment to fight. (Id. at 28:00-29:30). However, Toe also stated that

Adam was the one who owed the $5 debt, but Adam did not come to the apartment

complex with him, Atoyebi did. (Id. at 35:00-36:00). LEOs questioned Toe skeptically,

noting that this was the second fight they had been called to that day involving Toe.

Earlier, he had been beaten by his girlfriend’s brother. (Id. at 11:50-12:30).

When Atoyebi was questioned, he provided LEOs with a false name (Samuel

Johnson). (Mot. Supp. Def. Ex. F 4:50-5:30). He disclaimed ownership of the black

Nissan, although he admitted he was the driver. (Id. at 7:00-8:00). He claimed there

were two people shooting on foot, and that his car was shot, but he wasn’t involved.

(Id. at 14:00-15:30). At this point, a witness approached and informed the LEO

questioning Atoyebi that the Nissan was the car involved in the shooting. The Nissan

was moving towards a Dodge Charger, and she saw the gun emerge from one of the

cars. (Id.at 24:00-27:00). Eventually, the LEO realized Atoyebi had given a false name

and lied about his involvement in the shooting. (Id. at 39:00-42:00). Atoyebi finally

provided his correct name and stated that he had brought Toe to the apartment

complex to buy weed. (Id. at 42:00-44:00). However, he denied knowing Toe’s full

5

name and continued to state that Toe did not shoot from inside of the car. (Id. at

43:00-52:00). He also denied knowing Short. According to Atoyebi, Toe wanted to buy

weed from an unidentified “somebody” at the apartment complex. (Id. at 42:00-43:00).

Despite these events, the affidavit in support of the search warrant for Short’s

apartment claimed:

Upon patrol officers arrival at the apartment complex, officers were able

to identify and detain Emmanuel Toe and Samuel Atoyebi. Toe and

Atoyebi admitted that they were involved in the shooting when they

were detained by officers. Atoyebi identified his vehicle as being hit

during the gunfire.

***

DMPD Detective Dawson came to the scene to interview Emanuel Toe,

Samuel Atoyebi, and Shaun Short in regard to the shooting that

occurred. Atoyebi told Detective Dawson that Toe had approached him

earlier in the day and requested a ride to 7209 SE 5th Street to purchase

marijuana from Shaun Short. Atoyebi stated to Detective Dawson that

the only reason he drove Toe to 7209 SE 5th Street was to purchase

marijuana from Short.

(MTS Def. Ex. D at 5-6). The warrant affidavit further claimed that Atoyebi was

credible because his information was corroborated by law enforcement personnel and

his statements were contrary to his penal interest. (Id. at 12). The videotaped

conversations that law enforcement had with Toe and Atoyebi demonstrate that the

underlined statements were false, and Toe and Atoyebi were not credible.

Finally, the warrant affidavit omitted information that (1) witnesses on scene

identified Toe and Atoyebi as the aggressors and Short as the victim, (2) Toe and

Atoyebi lied to law enforcement and provided inconsistent stories, and (3) Atoyebi

falsely identified himself. The above-described false statements and omissions would

have undermined any notion that Short was a trafficker of controlled substances, and

6

therefore the central premise behind issuing the search warrant. If Short was a victim

in a shooting, and not a drug dealer, there would be very little reason to search his

apartment.

Reasons Relied Upon for Allowance of the Writ

I.

The Eighth Circuit Panel’s Endorsement of a Limitless Automobile Search

Exception Represents a Significant Departure from the Accepted and Usual

Course of Judicial Proceedings

Past decisions of the U.S. Supreme Court have clearly limited the automobile

exception to the warrant requirement to its original justifications, yet the Eighth

Circuit failed to recognize that those justifications did not apply here.

Although searches of vehicles have long been excluded from the warrant

requirement, these searches have been limited to cases where the “justifications” for

warrantless search “come into play.” Collins v. Virginia, 138 S. Ct. 1663, 1670 (2018)

(citing California v. Carney, 471 U.S. 386, 390 (1985)). As explained by Justice White,

two justifications have traditionally supplanted the preference for a warrant issued

by a neutral and detached magistrate:

Throughout our decisions, two major considerations have been advanced

to justify the automobile exception to the warrant requirement. We have

upheld only those searches that are actually justified by those

considerations.

First, these searches have been justified on the basis of the exigency of

the mobility of the automobile. See, e.g. Chambers v. Maroney, 399 U.S.

42 (1970); Carrol v. United States, 267 U.S. 132 (1925). This “mobility”

rationale is something of a misnomer, c.f. Cady v. Dombrowski, 413 U.S.

433, 442-443 (1973), since the police can ordinarily remove the car’s

occupants and secure the vehicle on the spot. However, the inherent

mobility of the vehicle often creates situations in which the police’s only

alternative to an immediate search may be to release the automobile

from their possession. This alternative creates an unacceptably high

risk of losing the contents of the vehicle, and is a principal basis for the

7

Court’s automobile exception to the warrant requirement. See

Chambers, supra, at 51 n.9.

In many cases, however, the police will, prior to searching the car, have

cause to arrest the occupants and bring them to the station for booking.

In this situation, the police can ordinarily seize the automobile and bring

it to the station. Because the vehicle is now in the exclusive control of

the authorities, any subsequent search cannot be justified by the

mobility of the car. Rather, an immediate warrantless search of the

vehicle is permitted because of the second major justification for the

automobile exception: the diminished expectation of privacy in an

automobile.

Because an automobile presents much of its contents in open view to

police officers who legitimately stop it on a public way, is used for travel,

and is subject to significant government regulation, this Court has

determined that the intrusion of a warrantless search of an automobile

is constitutionally less significant than a warrantless search of more

private areas. See Arkansas v. Sanders, 442 U.S. 753, 761 (1979)

(collecting cases). This justification has been invoked for warrantless

automobile searches in circumstances where the exigency of mobility

was clearly not present. See, e.g., South Dakota v. Opperman, 428 U.S.

364, 367-68 (1976); Cady v. Dumbrowski, supra, at 441-42. By focusing

on the defendant’s reasonable expectation of privacy, this Court has

refused to require a warrant in situations where the process of obtaining

such a warrant would be more intrusive than the actual search itself.

C.f. Katz v. United States, supra.

United States v. Ross, 456 U.S. 798, 829-31 (1982) (White, J., dissenting).

Although the decision in Ross expanded the automobile exception to include

containers within the automobile where there is probable cause to believe contraband

or evidence may be hidden, id. at 823-24, decisions issued since Ross have carefully

reminded the lower courts to limit the automobile search to its justifications. “The

word ‘automobile’ is not a talisman in whose presence the Fourth Amendment fades

away and disappears.” Coolidge v. New Hampshire, 403 U.S. 443, 461 (1971). The

point of the Fourth Amendment is to counteract the bias inherent in allowing police

officers, as the executive arm of the government, to make all probable cause

8

determinations. Id. at 449-50 (“Without disrespect to the state law enforcement agent

here involved, the whole point of the basic rule so well expressed by Mr. Justice

Jackson is that prosecutors and policemen simply cannot be asked to maintain the

requisite neutrality with regard to their own investigations.”).

For that reason, in Collins, although the motorcycle at issue was readily mobile

and law enforcement had ample reason to believe it was stolen, the Court held that

the automobile exception did not justify overriding the defendant’s reasonable

expectation of privacy within the curtilage of his home. 138 S. Ct. at 1669-70. In

Carney, the Court recognized a scenario where a vehicle could be considered a home

and removed from the automobile exception to the warrant requirement. 471 U.S. at

393. In Arizona v. Gant, 556 U.S. 332 (2009), the Court recognized that the arrest of

an occupant alone was not enough to justify search of a vehicle (despite ready mobility

and a lesser expectation of privacy) without independent probable cause to believe

the vehicle contained contraband.

The facts of Coolidge are analogous to Short’s case. In Coolidge, the Court

assumed that the defendant was lawfully arrested in his home on suspicion of murder

and that there was probable cause to search the car seized from his driveway. 403

U.S. at 458. Yet, the search and seizure of the car could not be justified by the

automobile exception to the warrant requirement:

The word ‘automobile is not a talisman in whose presence the Fourth

Amendment fades away and disappears. And surely there is nothing in

this case to invoke the meaning and purpose of the rule of Carroll v.

United States – no alerted criminal bent on flight, no fleeting

opportunity on an open highway after a hazardous chase, no contraband

or stolen goods or weapons, no confederates waiting to move the

9

evidence, not even the inconvenience of a special police detail to guard

the immobilized automobile. In short, by no possible stretch of the legal

imagination can this be made into a case where ‘it is not practicable to

secure a warrant,’ Carroll, supra at 153, and the ‘automobile exception,’

despite its label, is simply irrelevant.

Id. at 461-62. Like in Coolidge, when law enforcement made the decision to search

Short’s car, Short had already been arrested. Law enforcement controlled the scene,

and even controlled the vehicle, because the keys had already been seized. The vehicle

was not seized on the public highway, but rather in a residential parking lot. The

vehicle was not readily mobile in any sense of the word; it had a flat tire. Neither

Short nor anyone else could access the car to destroy its contents. Because this was

not a case where “it [was] not practicable to secure a warrant,” id. at 462, and the

automobile exception must be narrowly construed to uphold the Fourth Amendment,

the Eighth Circuit panel failed in upholding the warrantless search of the vehicle.

II.

Short was Entitled to a Franks hearing; the Eighth Circuit Panel Wrongly

Rejected Clear Evidence of False Statements and Material Omissions.

In Franks v. Delaware, 438 U.S. 154 (1978), the Supreme Court set out a

procedure for challenging a warrant affidavit that contained false statements or

omissions:

To prevail on a Franks claim the defendants must show: (1) that a false

statement knowingly and intentionally, or with reckless disregard for

the truth, was included in the affidavit; and (2) that the affidavit’s

remaining content is insufficient to establish probable cause. The same

analysis applies to omissions of fact. The defendant must show: (1) that

facts were omitted with the intent to make, or in reckless disregard of

whether they make, the affidavit misleading; and (2) that the affidavit,

if supplemented by the omitted information, could not support a finding

of probable cause.

10

United States v. Reinholz, 245 F.3d 765, 774 (8th Cir. 2001). A defendant is entitled

to a hearing under Franks if “the defendant makes a substantial preliminary

showing” that the LEO either knowingly and intentionally or recklessly included false

information or omitted necessary information. 438 U.S. at 155-56.

Short was not given a hearing on the false statements and omissions in the

warrant affidavit, despite demonstrating their existence. The warrant affidavit

claimed that Atoyebi stated he and Toe were there to buy marijuana from Short. This

was not true: Atoyebi claimed they were there to buy marijuana from “somebody,”

and Toe claimed they were there to fight Short over a $5 debt. The warrant affidavit

claimed that Atoyebi was credible, despite Atoyebi giving a false name, lying about

his involvement in the shooting, and being identified on the scene as one of the two

aggressors. The warrant affidavit claimed that Atoyebi’s version of events was

corroborated – but this can’t have been true, with two eyewitnesses on the scene

clearing Short and identifying Atoyebi and Toe as the aggressors, and Atoyebi and

Toe’s stories contradicting each other at every turn. Further, the warrant affidavit

omitted all statements by Toe and the eyewitnesses on the scene which weighed

against a finding of probable cause.

All of this information would have been relevant to the issuing judge in

deciding whether a warrant to search Short’s apartment was justified. The Eighth

Circuit panel erred in holding that these facts were not “critical” to the probable cause

determination. (Op. at 7). If there was not probable cause to believe that Short was

dealing controlled substances, there would be no reason to search his apartment for

11

evidence of the same. If he was the victim of a shooting, rather than a mutual

combatant, there would be little reason to expect there would be evidence of a crime

in his apartment. Short’s possession of a user quantity of marijuana and his criminal

past, without more, does not indicate that indicia of distribution would be found in

his apartment. See, e.g. Gessell v. State, 751 So.2d 104, 105 (Fla. Dist. Ct. App. 1999);

Raulerson v. State, 714 So. 2d 536, 537 (Fla. Dist. Ct. App. 1998). Instead, the

determination that he was distributing was bolstered by false statements that Toe

and Atoyebi were there to purchase marijuana from him. This supports an inference

that the false statements and omissions in the affidavit were deliberately or

recklessly made to influence the issuance of the warrant. If Short is not entitled to a

Franks hearing on these facts, no defendant can meet the Eighth Circuit’s demanding

test.

Conclusion

Shaun Short respectfully requests that the Supreme Court grant his petition

for a writ of certiorari for all the reasons stated herein.

PARRISH KRUIDENIER DUNN GENTRY

BROWN BERGMANN & MESSAMER L.L.P.

By:__/S/ Alfredo Parrish________

Alfredo Parrish

AT0006051

2910 Grand Avenue

Des Moines, Iowa 50312

Telephone: (515) 284-5737

Facsimile: (515) 284-1704

Email: aparrish@parrishlaw.com

ATTORNEY FOR DEFENDANT-APPELLANT