Petition for Writ of Certiorari — Edgar Manuel Sierra-Serrano, Petitioner v. United States
Supreme Court briefJan 18, 2022
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7024
filed
JAN 1 8 2022
IN THE
a
SUPREME COURT OF THE UNITED STATS
Edgar Sierra-Serrano - PETITIONER
VS.
United States of America - RESPONDENT(S)
ON PETITION FOR A WRIT OF CERTIORARI TO
The United States Court of Appeals for the Eighth Circuit
PETITION FOR WRIT OF CERTIORARI
Edgar Sierra-Serrano
Federal Correctional Institution
P.O. Box.1000
Sandstone, MN 55072
RECEIVED
JAN 2 8 2022
MM
QUESTION(S) PRESENTED
1. Has the progeny of 'probable cause' and the innovations of 'exceptions' to the
Fourth Amendment concerning the justification to advance in a warrantless search and
seizure circumstance been diminished to a lesser standard than what the Amendment
intended?
2. Does the defendant have (a) the expectation of review of the appeal as it
challenges the procurement of judgment by the District Court when the higher court
does not address the merits because they have found their own judgment based on a
separate standard of review, and (b) if they do maintain such right, then by what
means does the Petitioner have for review of the judgment in the first?
\
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:
;
!
•t
*
TABLE OF AUTHORITIES CITED
CASES
PAGE NUMBER
Aguilar v. TX, 378 U.S. 108; 84 S. Ct. 1509; 12 L.Ed.2d 723 (1964)
7
Arizona v. Gant, 129 S. Ct. 1710, 1714, 1719 (2009) .................................
9
Arizona v. Hicks, 475 U.S. 1107; 106 S. Ct. 1512; 89 L.Ed.2d 912 (1987) .
4,11
Beck v. Ohio, 379 U.S. 89, 91 (1964) ..........................................................
8
Berkemer v. McCarty, 468 U.S. 420; 104 S. Ct. 3138; 82 L.Ed.2d 317 (1984)
10
Brinegar v. US, 338 U.S. 160 (1949) ............................................................
8,11
California v. Acevedo, 500 U.S. 565; 111 S. Ct. 1982; 114 L.Ed.2d 619 (1991) ..10,11
Chimel v. California, 395 U.S. 752; 89 S. Ct. 2034; 23 L.Ed.2d 685 (1969)
9
Coolidge v. New Hampshire, 403 U.S. 443; 91 S. Ct. 2022; 29 L.Ed.2d 564 (1971) .11
D.C. v. Wesby, 138 S. Ct. 577; 199 L.Ed.2d 453 (2018)
5
Entick v. Carrington, 95 Eng. Rep. 807 (C.P. 1765) ..
7
Herring v. US, 129 S. Ct. 695 (2009) .........................
3
Illinois v. Gates, 462 U.S. 213, 231; 103 S. Ct. 2317; 76 L.Ed.2d 527 (1983) ...4,7
Katz v. US, 389 U.S. 347, 357 (1967) ...........................................................
10
Kuehl v. Burtis, 173 F.3d 646, 650 (8th Cir. 1999) ...................................
12
Maryland v. Pringle, 540 U.S. 366; 124 S. Ct. 795; 157 L.Ed.2d 769 (2003)
6,8
Mass v. Upton, 466 U.S. 727, 734 (1984) .....................................................
10
Michigan v. Fisher, 130 S. Ct. 546; 175 L.Ed.2d 410 .................................
12
Ontario v. Quon, 130 S. Ct. 2619; 177 L.Ed.2d 216 (2010) .........................
12
Ornelas v. US, 517 U.S. 690, 695; 116 S. Ct. 1657; 134 L.Ed.2d 911 (1996)
10
Rhode Island v. Innis, 446 U.S. 291, 300; 100 S. Ct. 1682; 64 L.Ed.2d 297 (1980) 6
Spinelli v. US, 393 U.S. 410; 89 S. Ct. 584; 21 L.Ed.2d 637 (1969)
7
Terry v. Ohio, 392 U.S. 1; 88 S. Ct. 1868; 20 L.Ed.2d 889 (1968)
10,12,13
Thornton v. US, 541 U.S. 615; 124 S. Ct. 2127; 158 L.Ed.2d 905 (2004)
9
US v. Chadwick, 433 U.S. 1; 97 S. Ct. 2476; 53 L.Ed.2d 538 (1977)
9
US v. Cortez-Palomino, 438 F.3d 910, 913 (8th Cir. 2006)
4
US v. Di Re, 332 U.S. 581; 68 S. Ct. 222; 92 L.Ed. 210 (1948)
13
US v. Duty, 204 Fed Appx 236 (4th Cir. 2006) ..........
13
US v. Gonzalez, 940 F.2d 1413, 1419 (11th Cir. 1991)
8
TABLE OF AUTHORITIES CITED
CASES
PAGE NUMBER
US v. Grimmett, 439 F.3d 1263, 1268-70 (10th Cir. 2006)
8
US v. Hensley, 469 U.S. 221, 232 (1985) .........................
13
US v. Hill, 459 F.3d 966, 970 (9th Cir. 2006) ...............
8
US v. Houston, 548 F.3d 1151, 1153 (8th Cir. 2008) ....
5
US v. Hurwitz, 459 F.3d 463, 473 (4th Cir. 2006) .........
8
US v. Jones, 132 S. Ct. 945; 181 L.Ed.2d 911 (2012)
7
US v. Laing, 708 F.2d 1568, 1571 (11th Cir. 1983)
11
US v. Muhammad, 463 F.3d 115 (2nd Cir. 2006)
12,13
US v. Neumann, 183 F.3d 753, 756 (8th Cir. 1999) ...
4,5
US v. O'Bryant, 775 F.2d 1528, 1534 (11th Cir. 1988)
11
US v. Perez, 484 F.3d 735, 740 (5th Cir. 2007)
8
US v. Ritter, 416 F.3d 256, 261 (3rd Cir. 2005)
8
US v. Robinson, 414 U.S. 218, 94 S. Ct. 467; 38 L.Ed.2d 427 (1973)
9
US v. Ross, 456 U.S. 798, 824 (1982) ...................................................
13
US v. Sharpe, 470 U.S. (1985)
9
US v. Singh, 390 F.3d 168, 181 (2nd Cir. 2004)
8
US v. Smart, 393 F.3d 767, 770 (8th Cir. 2005) ......................................
13
US v. Smith, 510 F.3d 641, 652 (6th Cir. 2007) ......................................
8
US v. Vore, 743 F.3d 1175, 1179 (8th Cir. 2014) ....................................
4
US v. Watson, 423 U.S. 411, 424; 96 S. Ct. 820; 46 L.Ed.2d 598 (1976)
13
US v. Williams, 955 F.3d 734, 737 (8th Cir. 2020) .................................
4
US v. Woodbury, 511 F.3d 93, 98 (1st Cir. 2007) ....................................
8
US v. Zapata, 18 F.3d 971, 975 (1st Cir. 1994)
10
Ybarra v. Illinois, 444 U.S. 85, 92-93 (1979)
13
TABLE OF CONTENTS
OPINIONS BELOW
1
JURISDICTION
2
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
3
STATEMENT OF THE CASE
4
REASONS FOR GRANTING THE WRIT
6
CONCLUSION
19
INDEX TO APPENDICES
APPENDIX A - Opinion of Eighth Circuit Court of Appeals
APPENDIX B - Opinion of District Court
APPENDIX C - Appellate Court Order Denying Rehearing
•7
IN THE
SUPREME COURT OF THE UNITED STATES
PETITION FOR WRIT OF CERTIORARI
Petitioner humbly prays that a writ of certiorari issue to review the judgment below
OPINIONS BELOW
[x] For cases from federal courts:
The opinion of the United States Court of Appeals appears at Appendix A to
the petition and
[ ] is reported at
[ ] has been designated for publication but is not yet reported; or,
[x] is unpublished.
The opinion of the United States District Court appears at Appendix B to the
petition and
[ £ is reported at :
2019 US DIST LEXIS 159858, no. 0:19-cr-00061-ECT-KMM
United States District Court for the District of Minnesota
[ ] has been designated for publication but is not yet reported; or,
[ ] is unpublished.
[ ] For cases from state courts:
[ ] The opinion of the highest state court to review the merits appears at
Appendix
to the petition and
[ ] is reported at
[ ] has been designated for publication but is not yet reported; or,
[ ] is unpublished.
The opinion of the '
Appendix
court appears at
to the petition and
[ ] is reported at
[ ] has been designated for publication but is not yet reported; or,
[ ] is unpublished.
1
JURISDICTION
[x] For cases from federal courts:
The date on which the United States Court of Appeals decided my case
was September 3, 2021.
[ ] No petition for rehearing was timely filed in my case.
[x] A timely petition for rehearing was denied by the United States Court
of Appeals on the following date: October 28, 2021, and a copy of the
order denying rehearing appears at Appendix C.
[ ] An extension of time to file the petition for writ of certiorari was
on
granted to and including
No.
in Application
A
The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).
[ ] For cases from state courts:
The date on which the highest state court decided my case was ___
A copy of that decision appears at Appendix ___.
[ ] A timely petition for rehearing was thereafter denied on the
, and a copy of the order denying
following date:
rehearing appears at Appendix ___.
[ ] An extension of time to file the petition for writ of certiorari was
on
granted to and including
No.
in Application
A
The jurisdiction of this Court is invoked under 28 U.S.C. § 1257(a).
2
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
Fourth Amendment to the United States Constitution
- Totality of Circumstances Doctrine
- Probable Cause Standard
- Warrantless Search and Seizure
- Automobile Exception
- Fair Probability Standard
- Arrest-incident-Search
- operacive
Modifiers
3
STATEMENT OF THE CASE
The District Court in Sierra-Serrano, No. 19-mj-102; ("Serrano") accepted,
in its entirety the "Report and Recommendation" ("R&R", Doc. 93) of the
magistrate.
The report provides for a detailed account of events, summarized as
follows; a Kansas Stats Trooper conducted a "CVSA" traffic stop of a truck
hauling vehicles on February 17, 2019.
The inspection evolved into a series of
warrantless and progressive searches into one of the vehicles in 'haul' that
resulted in the discovery of hidden contraband.
The authorities, upon the
discovery, replaced the substance with "dupes" and tracked (with warrant to
track) the vehicle in order to execute a 'sting' operation at or near delivery.
The defendant, Serrano, was arrested on February 19, 2019, and on February 25,
2019, the.government, in a preliminary hearing, made an oral argument to amend
the charges from "possession" to "conspiracy".
The court granted the amendment,
but dismissed the case against Serrano for lack of probable cause. US v.
Sierra-Serrano, 19-mj-102„ US DIST LEXIS 33361 (D. Minn. March 2019).
Months later, the government tried again.
This time however, instead of
focusing on the arrest at receipt of the vehicle, they indicted Serrano based on
the evidence that was seized during the multi-stage warrantless search while the
vehicle was in transit - was ‘in haul'.
The Petitioner concedes that searches are not all stageless, or consisting
of one big stage, but contends that*under a multiple stage warrantless search
circumstance, there is a standard that applies to the justification of the
advancement of the search in order to protect against those that are
unreasonable, unwarranted, or not justified. See Herring v. US, 129 S. Ct. 695;
172 L.Ed.2d 496; 4th Amendment, US Constitution.
4
The Petitioner challenges that the District Court did not adhere to the
standard established by the High Court and took great latitude and flexibility
in the procurement of judgment through a misinterpretation and misconstruing of
the requirement of probable cause and the invention of the 'automobile
exception' to justify the advancement of a warrantless search and seizure.
These problems have wide-sweeping effects across a great spectrum of
offense and circumstances that give rise to 4th Amendment protections.
Addressing the issue and offering the interpretation from which to follow as a
guide may serve as a root to a wide range of remedies, or serve as a continued
defect in the integrity of proceedings if an action is not taken.
The court in
Serrano has demonstrated that the effects of misconstruing the inventions of
exceptions, like the 'automobile exception', and misinterpreting the progeny of
‘probable cause' can create a defect in the integrity of the procurement of the
judgment.
5
REASONS FOR GRANTING THE PETITION
The invention of ‘exceptions' and the redefining of operative modifiers in
the application of probable cause have advanced to such a degree that we are far
removed from the language, intent, and spirit of the original.
So much so, that
it threatens the very protection that the Fourth Amendment was designed to
provide.
The circumstance of 'search and seizure1 appreciates an extensive
lineage and in its progeny we have been witness to the misinterpretation of
inventions such as the 'automobile exception' and the misconstruing of the
meaning and standard of probable cause.
The exceptions and innovations exercised without critique have led to a
diminished version of a standard that was intended to protect members of the
collective from unjustified intrusive advances of search and seizure without
probable cause; of substance,
A balance must be struck between the protection
of the rights of citizens and the enforcement of those laws that protect against
the very things that threaten our way of life,
avoid a result that provides a
In this effort however, we must
cloak of evasion' for those that may aim to take
advantage of ambiguities in the language to avoid prosecution of their nefarious
endeavors, just as we need not provide a blanket of flexibility in authority
that serves to justify the advancement of encroachments into privacy that are
unreasonable.
The analysis in Serrano is an example of how, with an implied authority of
'flexibility' under the auspices of a "totality of circumstances" doctrine,
great latitude can be taken that results in a misinterpretation and
misconstruing of the operative modifiers that define the requirements,
affectuating a diluted protection of the Amendment or statute.
6
The District Court provided, in this sequence, the following as the guiding
hand of its analysis:
1. Probable cause, under the 'automobile exception' is when, "based on
the totality of circumstances, there is a 'fair probability' that
contraband or evidence of a crime will be found in a particular place"
and cited US v. Cortez-Palomino, 438 F.3d 910, 913 (8th Cir. 2006),
2. Probable cause is determined by a court based on common sense and a
totality of circumstancoe, citing US v. Vore, 743 F.3d 117E, 1179 (8th
Cir. 2014),
3. That the ‘fair probability' standard does not require absolute
certainty that contraband will be discovered, citing Illinois v.
Gates, 462 U.S. 213, 232-232 (1983),
4. Instead, probable cause requires only a "probability or substantial
chance'1 of criminal activity, citinq U.S v. Neumann, 183 F.3d 753, 756
(8th Cir. 1999),
5. Because the 'automobile exception' applies, the court looks to the
totality of the circumstances known to law enforcement to discern
whether they had "probable cause" to completely search (emphasis
added) (Doc. No. 93, p. 25 @ lines 4-16).
The Fourth Amendment forbids unreasonable search and seizure and as such,
usually requires a warrant or the invention of exception with probable cause.
See US v. Williams, 955 F.3d 7,34, 737 (8th Cir. 2020).
This implies that the
scope of the search is a factor, as the nature of a warrant is to create
specificity in order to safeguard against the impediment on another's privacy or
property without the proper justification - without having met the standard of
probable cause to advance in the procedures of searching and seizing. See
Arizona v. Hicks, 475 U.S. 1107; 106 S. Ct. 1512; 89 L.Ed.2d 912 (1987) dispensing with the need for a warrant is worlds apart from permitting a lesser
standard of cause for the seizure than a warrant would require, i.e. the
standard of probable cause, and there is no apparent reason why an object would
be seized on lesser grounds than would have been needed to obtain a warrant, if
it had been known to be on the premises. Id.
In Serrano, the trooper, certified in Level II "CVSA" inspections,
initiated a traffic stop of a 'hauler' that he had observed earlier in the day
that appeared aged, giving him suspicion to inspect for compliance with safety
7
regulations consistent with "CVSA" (see "R&R" p. 14 (B)).
According to US v.
Houston, 548 F.3d 1151, 1153 18th Cir. 2008), this began the 'search and
seizure1 circumstance and must be supported by reasonable suspicion or probable
cause.
The Court in Serrano cited US v. Neumann, 183 F.3d 753, 756 (8th Cir.
1999) to establish for analysis; "probable cause requires 'probability or
substantial chance
of criminal activity. See also D.C. v. Wesby. 128 S. Ct.
577; 199 L.Ed.2d 453 (2018).
The Level II inspection includes such things as a walk-around, tire and
wheel hub inspection, lighting, and load securement of the vehicle in question;
in this instance the 'hauler1 (Doc. No. 93, p. 2 and TRL 28:2-10).
Upon this
inspection, the trooper found nothing in violation of regulations of the
'hauler', but did observe in plain view that one of the cars in haul was aged
and had California plates that gave him suspicion to advance his search.
Accordingly, he advanced to a Level III inspection, which he was not certified
to perform (footnote 2, p. 2 of Doc. 93).
The inspection involved the review of
paperwork, DMV registrations of all vehicles, and the Bill of Lading.
Based on
the agedness of one of the vehicles that had a higher numbered plate series and
a registration that had not yet been updated, along with its having more than
one air freshener, the trooper advanced again, all the while under the purview
of the 4th Amendment.
The District Court, upon review and analysis, determined that the
advancement was warranted; not by the presence of probable cause, but by consent
of the driver of the 'hauler' (R&R, Doc. 93, p. 21 @ lines 1-4).
The
advancement meant the administering of various field tests, including a 'Density
Meter Reading1 of compartments.
The trooper reported that the field test proved
positive, so he advanced again by instructing the driver to relocate the truck
and all of its cargo to another location for further investigation, whereupon a
dog sniff was conducted.
1. The trooper would eventually admit that his meter test did not
actually test positive and that he had used the results from a different
test from a different case.
8
2. The dog was not registered, giving the Court cause to question its
credibility.
Because of the dog sniff alert and the other factors, the trooper proceeded to
conduct an absolutely invasive search of the entire vehicle, including the dismantling
of the interior, which resulted in the discovery of hidden contraband,
The Court
ultimately decided that the series of events concerning the aggressive advancement of
the warrantless search to such an extent was justified because, "by the time the
trooper had conducted a full search he had probable cause" (Doc. 93, p. 25).
The Supreme Court has held that the 'probable cause' standard is incapable of
precise definition or quantification into percentages because it is based on
probability and depends on the totality of circumstances. See Maryland v. Pringle, 540
U.S. 366; 124 S. Ct. 795; 157 L.Ed.2d 769 (2003).
The protections of Constitutional
Amendments however, are not to be threatened by.inventions of 'exception' by man or to
reach a point where each generation of definition lends itself to a continual lessened
variation of the original standard in order to fit each circumstance, in the process
diluting the very protection the Amendment was meant to provide.
In Serrano, the Court justified the advancement of the search not by the standard
of probable cause that is suggested it should, but by a "potentially incriminating"
categorization.
(Doc. 93, p. 25).
This presumably was to get them to a ‘fair probability' standard
This proves problematic, as is evident in their listing of basis:
the implication that "potentially incriminating" and "fair probability" are equivalent
to "probability and substantial chance" in justification of advancement of a
warrantless search analysis.
"Probability and substantial chance" in this context
implies, at a minimum, a parameter of some quantity, and are of equal criteria; for
'probability' and ‘substantial chance' are used synonymously with the conjunctive
"OR".
They are not to serve as substitute of a lesser for the other, and it is
because of this issue that caution has been expressed when their is a reliance or
exercise of application of the categorical approach of "potentially incriminating".
See Rhode Island v. Innis, 446 U.S. 291, 300; 100 S. Ct. 1682; 64 L.Ed.2d 297 (1980).
9
While 'substantial' is not quantitatively specific, it is clear enough as to the
suggested degree - one greater than 'by chance1, 'hunch', 'fair', or 'maybe*.
"Substantial" is of a considerable amount, of a majority; ample.
Yet, the Court in
Serrano relies on a lesser standard to justify the advancement of the warrantless
search.
The Court chose to apply a lesser standard that was presumably allowed by its
misinterpretation of
-the
"‘totality of evidence"
doctrine that posits
that the
magistrate is required to take all of the evidence and decide that there was
fair
probability' (but actually referred to a "potentially incriminating" review).
The District Court in Serrano -is apparently interpreting that the progeny of
'search and seizure' found in Aguilar v. Tx, 378 U.S. 108; 84 S. Ct. 1509; L.Ed.2d 723
(1964) and Spinelli v. US, 393 U.S. 410; 89*S. Ct. 384; 21 L.Ed.2d 637 (1969), for
example, redefined probable cause to a lesser standard by way of interpretation of
Illinois v. Gates, 462 U.S. 213, 231; 103 S. -Ct. 2317; 76 L.Ed.2d 527 (1983), that
while various characteristics such as veracity, reliability, and base of knowledge are
intertwined to illuminate common sense, they are not to be rigid exactitudes.
In
doing so, this reduces the standard of probable cause to a modifier of 'fair' rather
than 'substantial'.
It seems the wiser course would be to emphasize a manner of
analysis that informs probable cause determinations while also maintaining its
integrity.
Gates actually contends that, "the magistrate must determine probable
cause, and that his action cannot be a mere ratification of the bare conclusions of
. others" (emphasis added).
The flexibility now interpreted from the progeny manifests in cases like Jones
and Brinegar (citation below), for example, and are to better serve the purpose of the
4th Amendment.
But it is not to be interpreted as a new establishment of probable
cause as the Court in Serrano acts. See US v. Jones, 132 S. Ct. 945; 181 L.Ed.2d 911
(2012) - the issue of privacy and the "search" is part of a 'monument of English
freedom undoubtedly familiar to every American statesman at the time the Constitution
was adopted, and considered to be the true and ultimate expression of constitutional
law' (citing Entick v. Carrington, 95 Eng. Rep. 807 (C.P. 1765)), treading upon
another's ground is sacred and if one treads, [he] must be justified by law; and
10
Brinegar v. US, 338 U.S. 160, 176 (1949) - the long prevailing standard of probable
cause protects citizens from rash and unreasonable interferences of privacy and with
unfounded charges of crime while giving fair leeway for enforcing the law.
Furthermore, Maryland v. Pringle stipulates that the "substance of all
definitions of probable cause is a reasonable grounds for belief of guilt", 540 U.S.
366; 124 S. Ct. 795; 157 L.£d.2ci 769 (2003), and to what degree of belief is
consistent across all circuits; that of "substantial belief", the operative modifier.
A magistrate's decision and its review must be made with great deference, and the
reviewing court must examine whether the magistrate had 'substantial basis' for
concluding that probable cause existed.
The exercise of this doctrine is appreciated by all circuits with the modifier
"substantial", not "fair" or "potentially",
Probable cause to advance a warrantless
search exists when the knowledge of facts and circumstances are grounded reasonably by
obtained information that warrant a belief that an offense has occurred, see Beck v.
Ohio, 379 U.S. 89, 91 (1964), and what kind of belief is shared; "substantial belief";
see US v. Woodbury, 511 F.3d 93, 98 (1st Cir. 2007); US v. Singh, 390 F.3d 168, 181
(2nd Cir. 2004); US v. Ritter, 416 F.3d 256, 261 (3rd Cir. 2005); US v. Hurwitz, 459
F.3d 463, 473 (4th Cir. 2006); US v. Perez, 484 F.3d 735, 740 (5th Cir. 2007); US v.
Smith, 510 F.3d 641, 652 (6th Cir. 2007); US v. Hill, 459 F.3d 966, 970 (9th Cir.
2006); US v. Grimmett, 439 F.3d. 1263, 1268-1270 (10th Cir. 2006); US v. Gonzalez, 940
F.2d 1413, 1419 (11th Cir. 1991).
In Serrano, the trooper did not have a warrant and was operating on mere
suspicion to initiate a safety inspection that lead him to exceed the bounds of his
authority and violate those protections afforded him by the 4th Amendment, by means of
invention and exception.
The "Report and Recommendation" in fact, drew the same conclusion, albeit via a
different route, that the trooper's last stages exceeded his authority:
"The Court does not conclude that the [hauler's] consent justified the more
intrusive search after the car was transported."
11
However, the Court was somehow not satisfied with its own findings, so it
continued:
“Therefore, further exploration of the legality of the search is required."
In the Court's efforts to further investigate the legality of the search, it
assessed the appropriateness of applying the ‘automobile exception' and its
implicatione.
The Court concluded that the exception applied, thereby changing the
requirements to satisfy probable cause.
The extent of a property search has long been an issue of debate with a progeny
of Supreme Court cases.
The circumstances in Serrano would appear to fall squarely in
the debate of the extent of searches and the standard that is required to justify the
advancement of the warrantless search.
The extent of the lineage has addressed
certain dynamics of the search, but has lacked specificity on where a line is going
from one stage of intrusiveness to another, and where "arrest" or "search" may begin
under the Fourth Amendment.
See Chimel v. California, 395 U.S. 752; 89 S. Ct. 2034;
23 L.Ed.2d 685 (1969) - laying a foundation for search-incident-to-arrest doctrine,
whereby‘.an extensive warrantless search is not proper when the officer's safety is not
in question or the preservation of evidence is a concern; see also
US v. Robinson,
414 U.S. 218; 94 S. Ct. 467; 38 L.Ed.2d 427 (1973) - applying the Chimel analysis to
the context of the search of the 'arrested
person and finding that a custodian's
arrest o# a (suspect) based on probable cause is a reasonable intrusion under the
Fourth Amendment.
The courts however, have not drawn a line of distinction between
the person and the further inspection of his property.
US v. Sharpe, 470 U.S. 675
(1985), limited by US v. Chadwick, 433 U.S. 1, 15; 97 S.Ct. 2476; 53 L.Ed.2d 538, to
"personal property...immediately associated with the person"; see also AZ v. Gant, 129
S. Ct. 1710; 173 L.Ed.2d 485 (2009) in this trilogy, as Gant, like Robinson,
recognized the Chimel concerns for officer safety and evidence preservation, but added
that, "when it is reasonable to believe evidence relevant to the crime of arrest might
be found in the vehicle." (quoting Thornton v. US, 541 U.S. 615, 632; 124 S. Ct. 2127;
158 L.Ed.2d 905 (2004) - and that the exception stems not from Chimel, but from
'circumstances unique to the vehicle context'.
12
In application then, in the context of a vehicle, who is the arrested? And then
what property is 'incident to the arrested1?
In Serrano, the instigating cause was
the 'hauler' condition and the conducting of a safety inspection.
This however, led to the search of property on that 'hauler'.
How does the progeny
separate the ‘hauler* and what it 'hauls' and a 'person' and what he 'possesses'?
Gant is an extension of Robinson and Chime!, implying they share a similar foundation
in principle - as to determining the extent of search and seizure, and certainly
impacts in particular those that are conducted without a warrant. See US v. Zapata, 18
F.3d 971, 975 (1st Cir. 1996); see also Berkemer v. McCarty, 468 U.S. 420, 441; 104 S.
Ct. 3138; 82 L.Ed.2d 317 (1984); and Katz v. US, 389 U.S. 347, 357 (1967) warrantless searches are per se unreasonable under the Fourth Amendment, subject only
to a few specifically established and well delineated exceptions. Terry v. Ohio, 392
U.S. 1; 88 S. Ct. 1868; 20 UEd.2d 889 (1968) (emphasis added).
Despite this, the District Court in Serrano appears to determine that the
'automobile' has additional attributes that makes it distinguishable from a 'person1,
and so then qualifies for its own exception.
This may be true, however, the exception
focuses on the need for a warrant, but does not remove the requirement of probable
cause. See California v. Acevedo, 500 U.S. 565, 579-80; 111 S. Ct. 1982; 114 L.Ed.2d
619 (1991).
When there is a question of probable cause, it should largely be deferred by a
preference for a warrant. See Mass v. Upton, 466 U.S. 727, 734 (1984).
The case of
Serrano is not void of such occurrence even in the first, for it was originally
dismissed due to a lack of probable cause (US v. Sierra-Serrano, No. 19-mj-102, US
DIST. LEXIS 33361, March 2019).
Probable cause, while suggested to be flexible, is
subject to no less than a twofold review at each stage: 1) the determination of
historical facts leading to each stage, and 2) the decision whether these facts viewed
objectively amount to probable cause. See Ornelas v. US, 517 U.S. 690, 695 (1996); see
also Brinegar v. US, 338.U.S. 160, 175-77 (1949) - for a search must stand on firmer
ground than mere suspicion.
13
The 'automobile exception1 demands probable cause just as the plain view doctrine
does, but that was not the auspices under which the Court could have justified the
trooper s advancements.
probable cause.
In Serrano, the analysis turns then on the presence of
Therefore the definition of probable cause is critical in relevance
whereby any replacement, substitute, or redefining should not be made without proper
scrutiny, so as to protect those rights afforded under the 4th Amendment and the
application of the probable cause standard. See Coolldge v. New Hampshire, 403 U.S.
443; 91 S. Ct. 2022; 29 L.Ed.2d 564 (1971); and Arizona v. Hicks, 480 U.S. 321; 107 S.
Ct. 1149; 94 L.Ed.2d 347 (1987) - while a cursory inspection may require a 'reasonable
suspicion1, a full blown search requires probable cause.
Further, Acevedo suggests
that 'probable cause1 for search exists when under the totality of the circumstances,
there is a "fair probability" that contraband or evidence of a crime will be found.
See California v. Acevedo, 500 U.S. 565, 579-80; 114 L.Ed.2d 619 (1991).
The 'automobile exception', misinterpreted to mean there is less of a protection
under the 4th Amendment, can advance a diminishment of privacy that -has now regressed
to such a lowered standard that, even that which is reasonable relative to 'police' or
'community caretaking'. See US v. 0‘Bryant, 775 F.2d 1528, 1534 (11th Cir. 1988) and
US v. Laing, 708 F.2d 1568, 1571 (11th Cir. 1983).
This apparent slide in standard is made evident as one journeys from 'certainty'
to 'probability or substantial chance1 to 'fair probability' to 'potentially' to
'reasonable suspicion' to 'reasonable probability', and eventually" to 'a hunch'.
The
distinction between looking at a suspicious object in plain view and moving things
even just a few inches is much more than trivial for the purposes of the 4th
Amendment, Arizona v, Hicks, 475 U.S. 1107, 1156 (1987), and a warrantless search must
be strictly circumscribed by the exigencies which justify its initiation. Coolidge v.
New Hampshire, 403 U.S. 443; 91 S. Ct. 2022; 29 L.Ed.2d 564 (1971).
14
The ultimate touchstone of the 4th Amendment is “reasonableness", and although
searches and seizures without warrant are presumably unreasonable, it can be overcome
by the exigencies of the situation that may make the needs of law enforcement so
compelling that the warrantless search may be objectively reasonable. See Michigan v.
Fisher, 130 S. Ct. 546; 175 L.Ed.2d 410 (emphasis added).
In this
instance,
compelling1
is
operative,
for -ft means
evidence to give cause to proceed (ergo, to compel).
"the
presence of
However, in Serrano, in the
review of the decision by the District Court, the Appellate Court applied a different
measure to justify advancement, a type of 'not dispel1 doctrine;
“The officer's suspicions were not dispelled."
Therefore, the advancement did not violate the 4th Amendment. US v. Sierra-Serrano,
No. 20-1340, US APP (8th Cir.), p. 2 @ lines 12-14.
In this context, to 'dispel1 is
to prove by the absence of something, but that falls short of the requirement at this
stage to justify a much more intrusive and aggressive warrantless investigation. See
Terry v. Ohio, 392 U.S. 1; 88 S. Ct. 1868; 20 L.Ed.2d 889 (1968) - where an officer
makes reasonable attempts of investigation and when nothing seems to 'dispel
his
reasonable suspicion, he is entitled to conduct a carefully limited search in his
attempts. See US v. Muhammad, 463 F.3d 115 (2nd Cir. 2006) (emphasis added).
The trooper's advancement to the next stage consisted of degrees well beyond
“careful" and "limited", including a dog sniff test by a non-certified dog that even
gave cause for concern of the Court (Doc. 93, p. 27). See Ontario v. Quon, 130 S. Ct.
2619; 177 L.Ed.2d 216 (2010) - an officer's contemplations are not free to disregard
exculpatory evidence even, if substantial inculpatory evidence suggest probable cause
may exist; see also Kuehl v. Burtis, l/3 T.3d 64'6, 650 (8th Cir. 1999) - and there is
a measure to 'reasonableness1 and too much ihtrusiveness.
15
'
The Court in Serrano apparently relies on a
not dispel' justification derived
from Muhammad, "where an officer makes reasonable inquiries, and when nothing in the
initial stages of the encounter serves to dispel his reasonable fear for his own or
others' safety", but in doing so parallels the ‘vehicle1 in question to the
person
in question. US v. Muhammad, 463 F.3d 115 (2nd Cir. 2006); and Terry v, Ohio, 392 U.S.
@ 30; 88 £. Ct. 1868. Si nee the Court did not cite its position, this substitution of
'person for vehicle' or 'vehicle for person' may lead then to a challenge of
guilt-by-association:
"A person's mere propinquity to others independently suspected of criminal
activity does not, without more, give rise to probable cause to search that
person. Sibren v, NY, 392 U.S. 40, 62-63 [88 S. Ct. 1889; 20 L.Ed.2d 907]
(1968). Where the standard is probable cause, a search or seizure must be
supported by probable cause particularized with respect to that [object]
person. This requirement cannot be undercut or avoided by simply pointing to
the fact that coincidentally there exists probable cause to search or seize
another or to search the premises where the person [or thing] may happen to
be." See Ybarra v. Illinois, 444 U.S. 85, 91; 100 S. Ct. 338; 62 L.Ed.2d 238
(1979l~and US v. Pi Re, 332 U.S. 581; 68 S. Ct. 222; 92 L.Ed. 210 (1948).
The 'automobile exception' may allow greater latitude to advance without a
warrant, but it does not exempt the requirement of probable cause prior to completing
his search, and certainly not "by the time he was done" as the Court in Serrano
determined.
See US. v. Smart, 393 F.3d 767, 770 (8th Cir. 2005) - a determination is
not made with the vision of hindsight, but instead by what the officer reasonably knew
at the time; US v. Watson, 423 U.S. 411, 424; 96 S. Ct. 820; 46 L.Ed.2d 598 (1976) to be consistent with the 4th Amendment it is at the time and not in retrospect. See
—^ v•—Hensley> 469 U.S. 221, 232 (1985) - and while reasonable suspicion requires more
than a hunch - but less than probable cause, when the authority does not posses the
articulable evidence that is required for the degree of encroachment that the
advancement of a more intrusive search will involve, the search may be improper and a
judgment rising from it challenged.
See US v. Duty, 204: Fed. Appx. 236 (4th Cir.
2006). See also US y, Ross, 456 U.S. 798, 824 (1982) - "a search of an entire vehicle
is prohibited without probable cause".
16
The Court gave weight to ’potentially incriminating' evidence to
would imply that there were other factors that needed help.
help1.
That
Nothing standing alone,
but the totality of circumstances, but there was no new evidence to 'compel' the
trooper to advance, and his advancements up until the end were all justified by a
lesser standard than 'probability' or
substantial chance'.
The Court deviated in
favor Of their own categorization and definition of standard, an abuse of discretion
that the flexibility offered does not grant to such an extent, and therefore requires
intervention of the Higher Court for clarity and interpretation. The 4th Amendment
would otherwise be in jeopardy and threatened by such inventions.
In the review of the Appellate Court is summarized the events of advancements by
the trooper in Serrano by way of consent and the aforementioned 'not dispel' doctrine.
Serrano appealed the lower court’s decision for review to determine if their
interpretation of 'probable cause’ and the application of the 'automobile exception
was correct as spelled out in the previous sections of this petition.
The higher court first determines if there is 'standing' of the defendant, an
aspect the lower court assumes is present and furthers its review into probable cause.
In the event the higher court finds there is no 'standing', then the defendant would
not have a reasonable expectation of privacy.
However, he would have a privacy
interest if he proved he was the owner, sender, or the intended recipient of the
vehicle (Case No. 20-1340, pp. 3 & 4).
The Court found that Serrano did not.
In fact, of the three defendants, now serving more than thirty years combined
behind bars, not a single one was found to have 'standing'.
The charge of conspiracy
was evidenced by the drugs found in a car in transport, that Serrano took possession
of at delivery along with others, but no one had 'standing' or a privacy interest in
the vehicle?
This only goes to entice would-be smugglers to use their own vehicles.
The standard of 'reasonableness
is used as a modifier everywhere in the
seizure' context, but disappears behind the shroud of
17
standing'.
search and
If Serrano "introduced no reliable evidence showing that he shipped the Ford or
was the intended recipient", then how could he be charged with a conspiracy to commit
that offense?
No drugs were ever found on Serrano - yet the charges imply that
Serrano was part of a conspiracy to distribute something he could not prove he was
intended to receive.
TIlS
■fll^d
SH
appeal
to
address
his
ri ghts
and
protections
"in
the
f-J rst
instance, that which assessed probable cause and the automobile exception application
in the advancement of a search.
If the higher court does not review that first, then
by what means can the defendant exercise his right to review that judgment, one that
he contends was procured with an impropriety that resulted in a defect in the
integrity of the proceedings.
So now the Petitioner pleads before this Court for intervention to allow him a
right to review the judgment against him in the first.
18
CONCLUSION
For the foregoing reasons, the Petitioner asks that a writ of certiorari be
granted.
Respectfully submitted,__
Date:
/-/
19
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.