Petition for Writ of Certiorari — Latoya Nicole Carter, Petitioner v. Virginia

CRIMINAL CASE

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In The

SUPREME COURT OF THE UNITED STATES

Latoya Nicole Carter,

Applicant/Petitioner,

Vv.

Commonwealth of Virginia,

Respondent.

On Petition for a Writ of Certiorari to the

Supreme Court of the Commonwealth of Virginia

PETITION FOR A WRIT OF CERTIORARI

MATTHEW L. PACK, ESQ.*

M. PACK LAW PLLC

423 E. MAIN STREET

P.O. BOX 258

Bedford, VA 24523

Telephone: (540) 586-7225

Facsimile: (640) 586-1227

SCOTUS Bar No.: 312752

VSB Bar No.: 84287

matt@urvalawyer.com

Attorney for Applicant/Petitioner June 7, 2022

*Counsel of Record

I, QUESTION PRESENTED

Where a law enforcement officer trespasses into a resident’s home by

shoving his foot into the doorway through the threshold of the home, does the

Fourth Amendment forbid such conduct and allow the resident to lawfully expel

the trespassing officer and further lawfully resist any unlawful arrest that may

be effectuated by such officer?

VII.

IX.

II. Table of Contents

Question Presented

Table of Contents

Table of Authorities

Petition for Writ of Certiorari

Opinions Below

Jurisdiction

Constitutional Provisions Involved

Statement of the Case

1. The Substance of Ms. Carter’s Arrest

2. Direct appeal

Reasons for Granting the Writ

A. The Fourth Amendment protects a citizen against an unlawful entry

by a law enforcement officer, who resorts to trespassing and excessive

force in order to assert his authority rather than peaceful

investigation and enforcement of the law.

B. Ms. Carter’s actions constitute a legitimate exercise of her common

law right to expel a trespasser, even if such trespasser is a

law enforcement officer acting beyond the scope of his duties.

C. The Virginia Supreme Court erred in finding that Officer Reed

was engaged in the performance of his public duties at the time

of the offense because of Reed’s flippant violation of Ms.

Carter’s Constitutional Rights as well as the vindictive manner in

which Reed carried out the seizure of Ms. Carter.

1. The officer was a trespasser in violation of the law when he put

his foot in Carter’s doorway.

u. The officer violated Ms. Carter’s Fourth Amendment rights when

he crossed the threshold of her home by placing his foot in

her doorway.

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X.

il. Jt is irrelevant if Ms. Carter was under investigative detention

because a citizen cannot be detained within their own home.

Conclusion

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IV. Table of Authorities

Cases:

Cady v. Dombrowski,

419 U.S. 488, 441 (1978).

Collins v. Virginia,

584U.S._, (2018).

Delaware v. Prouse,

440 U.S. 648, 653, 99 S. Ct. 1891, 59 L. Ed. 2d 660 (1979).

De Priest v. Commonwealth,

4 Va. App. 577, 587, 359 S.E.2d 540, 545 (1987).

Florida v. Jardines,

569 U.S. 1, 6 (2013).

Florida v. Royer,

460 U.S. 491, 500 (1983).

Foote v. Commonwealth,

11 Va. App. 61, 69, 396 S.E.2d 851, 856 (1990).

Gardner v. Neil,

4N.C. 104, 104 (1814).

Graham v. Connor,

490 U.S. 386, 397, 109 S. Ct. 1865, 1872 (1989).

Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982).

Hayes v. Florida,

470 U.S. 811, 815, 84 L. Ed. 2d 705, 105 S. Ct. 1643 (1985).

Hunsberger v. Wood,

570 F.3d 546 (4th Cir. 2009).

Kaupp v. Texas,

538 U.S. 626, 630 (2003).

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Kyllo v. United States,

533 U.S. 27, 40 (2001).

Lange v. California,

594 U.S.__, ___ (2021).

Malley v. Briggs,

475 U.S. 335, 341 (1986).

Michigan v. Tyler,

436 U.S. 499, 509 (1978).

Minnesota v. Olson,

495 U.S. 91, 100 (1984).

Montgomery v. Commonwealth,

99 Va. 833, 37 S.E. 841 (1901).

Oulds v. Commonwealth,

260 Va. 210, 214, 5382 S.E.2d 33, 35 (2000).

Payton v. New York,

445 U.S. 578, 585 (1980).

Pike v. Commonwealth,

24 Va. App. 378, 375, 482 S.E.2d 839 (1997).

Rogers v. Pendleton,

249 F.3d 279, 285-86 (4th Cir. 2001).

Scott v. United States,

436 U.S. 128, 1387-189 (1978).

Smith v. Jacko,

Civil Action No. 2:16-655-BHH, 2019 U.S. Dist. LEXIS 149201,

at *28-29 (D.8.C. Aug. 30, 2019).

Steagald v. United States,

451 U.S. 204, 211 (1981).

Stanton v. Sims,

571 U.S. 3, 6, 10 (2013).

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Stevenson v. Commonwealth,

218 Va. 462, 237 S.E.2d 779 (1977).

Terry v. Ohio,

392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968).

Thomas v. Commonwealth,

16 Va. App. 851, 857-858, 434 S.E.2d 319, 323 (1993).

‘United States v. Martinez,

406 F.3d 1160, 1165 (9th Cir. 2005).

United States v. Robinson,

414 U.S. 218 (1973).

United States v. Rollins,

No. 4:18-01129-MGL, 2019 U.S. Dist. LEXIS 154677

(D.S.C. Sep. 11, 2019).

Welsh v. Wisconsin,

466 U.S. 740, 753 (1984).

Wilson v. Layne,

526 U.S. 608, 615 (1999).

Statutes:

28 U.S.C. § 1257

Va. Code Ann. § 15.2-1704 (A)

Va. Code Ann. § 18.2-57(C)

Va. Code Ann. § 18.2-119

Va. Code Ann. § 18.2-460(B)

Constitution:

United States Constitution, Amendment IV

United States Constitution, Amendment XIV

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IV. Petition for Writ of Certiorari

Latoya Nicole Carter, an indigent defendant as well as a resident of the City

of Lynchburg, Virginia, by and through her court appointed counsel, Matthew L.

Pack, respectfully petitions this court for a writ of certiorari to review the

judgment of the Supreme Court of Virginia.

V. Opinions Below

The decision by the Virginia Supreme Court denying Ms. Cartey’s direct

appeal is styled as Latoya Nicole Carter v. Commonwealth of Virginia, Docket No.

201145 January 12, 2022).

VI. Jurisdiction

Ms. Carter’s direct appeal was decided and the trial court affirmed by the

Virginia Supreme Court on January 12, 2022. This Court will have jurisdiction

over any timely filed petition for writ of certiorari in this case pursuant to 28

U.S.C. § 1257(1). The petitioner was granted an extension by the Chief Justice of

this Honorable Court to file a petition for writ of certiorari no later than June 10,

2022.

VII. Constitutional Provisions Involved

United States Constitution, Amendment 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 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.

United States Constitution, Amendment XIV:

All persons born or naturalized in the United States, and subject

to the jurisdiction thereof, are citizens of the United States and of the

state wherein they reside. No state shall make or enforce any law which

shall abridge the privileges or immunities of citizens of the United

States; 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.

VIII. Statement of the Case

Most Americans believe that organized law enforcement has been around since

the founding of our republic; however, the modern, organized police force is a

relatively modern development “sparked by notions of public order, driven in turn by

economics and politics...”! This Honorable Court is charged with the task of ensuring

such organized police power does not impinge upon the Constitutional Rights of the

individual citizen and ensuring that such police power does not exceed the scope of

its function within the executive branch of government. When such individual action

by law enforcement exceeds the scope of appropriate action, the law enforcement

officer effectively becomes judge, jury, and executioner. “The essential purpose of the

proscriptions in the Fourth Amendmentis to impose a_ standard of

"reasonableness" upon the exercise of discretion by government officials, including

law enforcement agents, in order to safeguard the privacy and security of individuals

against arbitrary invasions.” Delaware v. Prouse, 440 U.S. 648, 653-54, 99 S. Ct. 1391,

1396 (1979).

1 Olivia B. Waxman, How the U.S. Got Its Police Force,

https://time.com/4779112/police-history-origins/, (last updated May 18, 2017).

The scrutiny upon of the use of force when investigating and intruding upon

individual citizen’s rights is heightened when the intrusion is the citizen’s person in

their own home. As the late Justice Scalia pointed out, “[b]ut when it comes to

the Fourth Amendment, the home is first among equals. At the Amendment's ‘very

core’ stands ‘the right of a man to retreat into his own home and there be free from

unreasonable governmental intrusion.” Florida v. Jardines, 569 U.S. 1, 6 (2013).

This case presents the question of just how far the Fourth Amendment can

stretch to accommodate an “investigation” and “arrest” by law enforcement. It is the

Petitioner’s contention that one the duties of a police officer are to deescalate an

already heightened situation, not to use his badge as an operation of a personal

vendetta to force the citizen to “do what he says.” This is a matter that the Petitioner

believes implicates the Constitution of the United States, and as such, was incorrectly

decided by the Virginia Supreme Court.

1. The Substance of Ms. Carter’s Arrest.

On January 24, 2018, Officer S.C. Reed (“Reed”), a Caucasian Police Office with

the City of Lynchburg, Virginia, responded to a service call at the home of Ms. Latoya

Carter (“Carter”), an African American Woman and resident of the City of

Lynchburg, Virginia, whose address was 419 Rivermont Avenue, Lynchburg,

Virginia. App. at 40. Upon Reed’s arrival, Reed encountered three individuals—two

on the front porch and Carter who was inside her doorway. App. at 40, 47-48. Reed

first initiated contact with an individual identified as “Penicks.” App at 41. Carter

can be heard on the Reed’s body worn camera repeatedly telling Penicks, “you not

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coming in here!” Camera at 1:07-1:09. Carter further explains that Penicks has put

“his hands” on her. Camera at 1:20-1:31. Penicks stated that he wanted to retrieve

his belongings from inside the home. App. at 41. As Reed continued to speak with

Penicks, Carter continued to exclaim from inside the doorway that [Penicks] was not

allowed into her home, that he had “put his hands on [her]” so he “need[ed] to go.”

App. at 86. Reed demanded Carter to stop talking and told her that he “was only

going to speak to one person at a time.” Camera at 1:30; App. at 42. Reed then makes

some statement about Carter going to jail, tells Carter “we’re not done talking”, and

places his right foot into her doorway when Carter attempts to shut the door and go

back into her home. Camera at 1:35-1:40. In the statements that continue, Carter

makes clear to Reed and Penicks that neither are allowed into Carter’s home.

As Carter continued to make it very apparent that Penicks, nor anyone for that

matter, were allowed back in her home, Reed continued towards and through Carter’s

doorway. Camera 2:00-2:10; App. at 86. As Reed continued, Carter exclaimed that

she did not want to speak with him any further and attempted to close the door to

her home?. App at 49, 86. To prevent Carter from retreating into her home, safely,

Reed continued with his foot in the doorway and told Carter that they were “not

finished.” App. at 42. Carter replied, “I don’t give a fuck if you’re done or not, [you]

aren’t coming in here because my son is in here, and he’s [Penicks] showing off.” App.

at 42. Carter attempted to close the front door to her home again. App. at 42. Reed

2 Stephanie Ford testified that Carter was the legal tenant of 419 Rivermont Ave.,

Lynchburg, on the date of this incident. App. at 54.

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kept his foot in the threshold of Carter’s doorway while she attempted to close the

door one more time because he “was not finished investigating.” App. at 45, 43, 49.

Immediately thereafter, the officer pushed through the door and told Carter not to

slam the door on him. Ms. Carter yelled, “or what, or what” and Officer Reed grabbed

Carter's right arm, pushed Carter against the wall, and advised Carter to put her

hands behind her back. App. at 43-44. Ms. Carter struggled to release herself from

his control, telling Reed to “get the fuck off of [her].” App. at 44.

After placing handcuffs on Carter, Reed tells Carter, “you’re not going to slam

the door on me.” Camera at 3:07. Reed never notifies Carter that Carter is under

arrest or for what reason she would be arrested. Reed then goes on to tell Pennicks,

“I can be the most relaxed and chill officer there is, but ’m not going to have people

get in my face and start yelling and screaming at me.” Camera at 5:40-5:46. Then,

without ascertaining permission from the leaseholder, Carter, Reed once again enters

the property and allows Pennicks to enter the property. Camera at 6:37. Reed goes

on to continue in the trespassing with Pennicks, telling him, “I don’t care what you

get out of here.” Camera at 6:41. Reed allows two other unidentified individuals to

smoke on the porch of Carter’s home, while telling them, “Like I was telling

[Pennicks], I can be the most chill and relaxed cop out here, I’m not going to have a

door slammed on my foot while I am trying to figure out what’s going on...and when

people aren’t cooperative, that’s where things go south.” Camera at 7:22-7:42.

2. Direct appeal

On direct appeal to the Virginia Court of Appeals, Carter argued that her

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arrest was unlawful given that Reed was trespassing at the time Reed crossed the

threshold to Carter’s home. Carter also argued that the evidence was insufficient to

convict Carter of assault on a law enforcement officer. The Virginia Court of Appeals

refused to rule on the legality of the arrest because such was not properly preserved.

Further, the Virginia Court of Appeals ruled that the evidence was sufficient to

convict Carter of assault and battery of a law enforcement officer, and Carter did not

have a right to expel a trespasser from her property. However, Carter argued,

through counsel, that if not for the egregious, unlawful conduct of law enforcement,

the situation would not have occurred at all.

Carter appealed the Virginia Court of Appeals’ decision to the Supreme Court

of Virginia, where Carter’s petition for appeal was granted, briefed, and the court

ruled that Carter had not given Reed a command to leave, nor given him a reasonable

time to leave in order to invoke law regarding trespassing.

IX. Reasons for Granting the Writ

A. The Fourth Amendment protects a citizen against an unlawful

entry by a law enforcement officer, who resorts to trespassing and excessive

force in order to assert his authority rather than peaceful investigation and

enforcement of the law.

“Although certain seizures may be justified on something less

than probable cause, see, e.g., Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct.

1868 (1968), we have never "sustained against Fourth Amendment challenge the

involuntary removal of a suspect from his home to a police station and his detention

there for investigative purposes . . . absent probable cause or judicial

authorization." Kaupp vu. Texas, 588 U.S. 626, 630 (2003) quoting

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Hayes v. Florida, 470 U.S. 811, 815, 84 L. Ed. 2d 705, 105 S. Ct. 1643 (1985).

“As in other Fourth Amendment contexts, however, the "reasonableness"

inquiry in an excessive force case is an objective one: the question is whether the

officers' actions are "objectively reasonable" in light of the facts and circumstances

confronting them, without regard to their underlying intent or

motivation. See Scott v. United States, 436 U.S. 128, 187-139 (1978); see

also Terry v. Ohio, supra, at 21 (in analyzing the reasonableness of a particular

search or seizure, "it is imperative that the facts be judged against an objective

standard"). An officer's evil intentions will not make a Fourth Amendment violation

out of an objectively reasonable use of force; nor will an officer's good intentions make

an objectively unreasonable use of force constitutional. See Scott v. United States,

supra, at 138, citing United Statesv. Robinson, 414 U.S. 218 (1978).”

Graham v. Connor, 490 U.S. 386, 397, 109 S. Ct. 1865, 1872 (1989).

As Carter continued to make it very apparent that Penicks, nor anyone for that

matter, were allowed back in her home, Reed continued towards and through Carter’s

doorway. Camera 2:00-2:10; App. at 86. As Reed continued, Carter exclaimed that

she did not want to speak with him any further and attempted to close the door to

her home’. App at 49, 86. To prevent Carter from retreating into her home, safely,

Reed continued with his foot in the doorway and told Carter that they were “not

finished.” App. at 42. Carter replied, “I don’t give a fuck if you’re done or not, [you]

3 Stephanie Ford testified that Carter was the legal tenant of 419 Rivermont Ave.,

Lynchburg, on the date of this incident. App. at 54.

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aren't coming in here because my son is in here, and he’s [Penicks] showing off.” App.

at 42. Carter attempted to close the front door to her home again. App. at 42. Reed

kept his foot in the threshold of Carter’s doorway while she attempted to close the

door one more time because he “was not finished investigating.” App. at 45, 43, 49.

Immediately thereafter, the officer pushed through the door and told Carter not to

slam the door on him. Ms. Carter yelled, “or what, or what” and Officer Reed grabbed

Carter’s right arm, pushed Carter against the wall, and advised Carter to put her

hands behind her back. App. at 48-44. Ms. Carter struggled to release herself from

his control, telling Reed to “get the fuck off of [her].” App. at 44.

After placing handcuffs on Carter, Reed tells Carter, “you’re not going to slam

the door on me.” Camera at 3:07. Reed never notifies Carter that Carter is under

arrest or for what reason she would be arrested. Reed then goes on to tell Pennicks,

“IT can be the most relaxed and chill officer there is, but I’m not going to have people

get in my face and start yelling and screaming at me.” Camera at 5:40-5:46. Then,

without ascertaining permission from the leaseholder, Carter, Reed once again enters

the property and allows Pennicks to enter the property. Camera at 6:37. Reed goes

on to continue in the trespassing with Pennicks, telling him, “I don’t care what you

get out of here.” Camera at 6:41. Reed allows two other unidentified individuals to

smoke on the porch of Carter’s home, while telling them, “Like I was telling

[Pennicks], I can be the most chill and relaxed cop out here, I’m not going to have a

door slammed on my foot while I am trying to figure out what’s going on...and when

people aren’t cooperative, that’s where things go south.” Camera at 7:22-7:42.

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This Honorable Court should grant this petition in order to make an

affirmative statement of law as to the Fourth Amendment’s prohibition on law

enforcement’s illegal entry into Carter’s home. In addition, such entry was made to

escalate a situation in which law enforcement should have been deescalating the

same situation.

B. Ms. Carter’s actions constitute a legitimate exercise of her

common law right to expel a trespasser, even if such trespasser is a law

enforcement officer acting beyond the scope of his duties.

Trespassing is defined under Va. Code Ann. § 18.2-119 when, without the

authority of law, he goes upon the lands, buildings or premises of another after being

forbidden to do so. “The common law in this state has long recognized the right of a

landowner to order a trespasser to leave, and, if the trespasser refuses to go, to employ

proper force to expel him, provided no breach of the peace is committed on the outset.”

Pike v. Commonwealth, 24 Va. App. 373, 375, 482 S.E.2d 839 (1997).

This common law rule requires the landowner first order the trespasser to

leave her property, and if that order is disregarded, then the landowner may use

reasonable force to rid herself of the trespasser. Montgomery v. Commonwealth, 99

Va. 833, 37 S.E. 841 (1901) (emphasis added). In Monigomery, the landowner/tenant

speaking to the trespasser said, “if you have transacted your business you must

leave”, and “motioned his hand to him to go.” Id. The order from the landowner/tenant

was a statement coupled with a non-verbal gesture.

Nonverbal conduct is often introduced as evidence to show the maker’s intent

and state of mind at the time it was made. Virginia distinguishes between nonverbal

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assertions and conduct for hearsay purposes. Stevenson v. Commonwealth, 218 Va.

462, 237 5.E.2d 779 (1977). Thus, the Virginia Supreme Court recognizes the implicit

value nonverbal statements have, and as such the Fourth Amendment as applied

through the Fourteenth Amendment of the Constitution should give Ms. Carter the

reasonable right to expel a law enforcement officer acting beyond the scope of his

authority in a vindictive manner.

Here, the Court of Appeals of Virginia as well as the Virginia Supreme Court

found that Carter failed to order the officer to leave her property before expelling him

because she did not tell him to leave. App. at 93, emphasis added. However, her

nonverbal statement of shutting her door was a clear order directed at the officer to

leave her property, which he ignored when he put his foot in her doorway (such

arguably violated her Fourth Amendment Rights against unwarranted entry, search,

and seizure). Therefore, when Carter closed her door, and continued to close her door,

her conduct was both: the order for the officer to leave her property and the

reasonable force used to expel him when he chose to disregard her order.

When exercising the right to expel a trespasser, an individual “may not

endanger human life or cause great bodily harm.” Pike at 376. When determining

reasonableness, the court have employed the standard that “the amount of force used

must be reasonable in relation to the harm threatened.” Foote v. Commonwealth, 11

Va. App. 61, 69, 396 S.E.2d 851, 856 (1990). When Carter shut her door, she was

using the most reasonable amount of force available. There is no contention that

Carter should have known where the officer’s foot was positioned or that it was

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subject to being pinched in the door if she succeeded in closing it, but she did so with

the reasonable expectation that doing so would not “endanger human life or cause

great bodily harm.” Pike at 376. Finding otherwise would render the long-recognized

right to expel trespassers virtually meaningless.

C. The Virginia Supreme Court erred in finding that Officer Reed

was engaged in the performance of his public duties at the time of the

offense because of Reed’s flippant violation of Ms. Carter’s Constitutional

Rights as well as the vindictive manner in which Reed carried out the

seizure of Ms. Carter.

Under Virginia Law, a person is guilty of assault or assault and battery of a

law enforcement officer if the person “knows or has reason to know that such person

is a...law enforcement officer ... engaged in the performance of his public duties

anywhere in the commonwealth.” Va. Code Ann. § 18.2-57(C). In order to sustain a

felony conviction under the code, “the prosecution must prove a law enforcement

officer is performing his public duties.” Oulds v. Commonwealth, 260 Va. 210, 214,

532 S.E.2d 33, 35 (2000). Thus far, Virginia courts have been quiet on when an officer

is specifically “engaged in the performance of his public duties.” However, one line of

case law that speaks to when officers are acting outside the scope of their duties are

the civil cases that raise the issue of qualified immunity. This Honorable Court has

given fairly straightforward guidance on such types of cases, which are instructive in

this case.

This Court has held that “government officials performing discretionary

functions generally are shielded [. . .] insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would

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have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Furthermore, “a right

can be deemed clearly established even if there is no prior decision addressing the

precise conduct at issue, so long as it’s illegality would have been evident to a

reasonable officer based on existing caselaw.” Rogers v. Pendleton, 249 F.3d 279, 285-

86 (4th Cir. 2001); citing Wilson v. Layne, 526 U.S. 603, 615 (1999). Officers are

therefore “not afforded protection when they are ‘plainly incompetent [. . .] or

knowingly violate the law.” Rogers at 286 (emphasis added), quoting Malley v. Briggs,

475 U.S. 335, 341 (1986). While the issue here is not whether the officer is civilly

liable to Carter, the qualified immunity case law postulates that an officer is not

engaged in his public duties when he is knowingly in violation of the law.

1. The officer was a trespasser in violation of the law when he put his foot

in Carter’s doorway.

Officer Reed was clearly in violation of Va. Code Ann. § 18.2-119 when he did

not leave Carter’s home after she ordered him to do so, and instead breached the

threshold of her home. As a reasonable officer, Reed should have known that he had

no lawful basis to enter Carter’s residence, so as soon as he did, he was a trespasser

in violation of the law, acting outside the scope of his public duties. Reed’s statements

on his body worn camera capture a vindictive intent when Reed states to Ms. Carter,

“you're not going to slam the door on me.” Camera at 3:07.

Instead of looking to the officer’s conduct at the moment he crossed the

threshold of Carter’s doorway, the Virginia Court of Appeals focused on the officer’s

conduct in general by concluding that from the moment he arrived at her home every

one of his actions was in furtherance of his investigation. App. at 94-95. However, it

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is Counsel’s argument that the reviewing court should look at each one of the officer’s

acts as separate and distinct conduct or else every time the police are acting under

the guise of investigating, their conduct will always be found to be in accordance with

the state statute, Va. Code Ann. § 15.2-1704 (A).4 The moment Officer Reed put his

foot in Carter’s doorway, he was no longer investigating but trespassing, knowingly

in violation of the law.

il. The officer violated Ms. Carter’s Fourth Amendment rights when he

crossed the threshold of her home by placing his foot in her doorway.

The Court of Appeals of Virginia and the Virginia Supreme Court found that

Carter had no right to contact (and arguably batter) the officer because Ms. Carter

was not under arrest at the time she closed the door on his foot. App. at 95. However,

at that moment in time, it did not matter whether Carter was under arrest because

she was legally justified in using reasonable force to expel the trespassing officer from

her home. Carter maintains that the assault and battery on the officer was justified

because she was resisting an unlawful arrest; but this contention was grounded in

events that happened later in time, not at the moment she closed her door. In that

moment, not only was Officer Reed trespassing, but he entered Ms. Carter’s home

unlawfully.

At common law, and for decades after the Fourth Amendment was ratified, the

‘only remedy for a violation of the Fourth Amendment was a tort suit against the

4“The police force of a locality is . . . responsible for the prevention and detection of

crime, the apprehension of criminals, the safeguard of life and property, the

preservation of peace and the enforcement of state and local laws, regulations, and

ordinances.”

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agents for trespass. If the agents had no valid warrant and entered your house

without permission, they were automatically deemed trespassers and could offer no

defense. Gardner v. Neil, 4 N.C. 104, 104 (1814). The North Carolina Supreme Court

held, “[e]very entry by one, into the dwelling-house of another, against the will of the

occupant, is a trespass, unless warranted by such authority in law as will justify the

entry.” Id. at 104.

This Honorable Court’s interpretation and application of the Fourth

Amendment has expanded the tort of trespassing and found that any “physical

invasion of the structure of the home, by even a fraction of an inch” is a constitutional

violation. Kyllo v. United States, 533 U.S. 27, 40 (2001); and “the physical entry of the

home is the chief evil against which the wording of the Fourth Amendment is

directed.” Payton v. New York, 445 U.S. 573, 585 (1980). “In none is the zone of privacy

more clearly defined than when bounded by the unambiguous physical dimensions of

an individual’s home.” Jd. at 589. Thus, the Fourth Amendment now affords

protection against unnecessary intrusions into the private homes by means of the

warrant requirement imposed on agents of the government who seek to enter a

person’s home.

However, as with all bright line rules, there are exceptions. Warrantless

intrusion may be justified by a showing of “consent or exigent circumstances.”

Steagald v. United States, 451 U.S. 204, 211 (1981). Exigent circumstances exist

amidst emergencies, they include the “hot pursuit of a fleeing felon, or imminent

destruction of evidence, or the need to prevent a suspect’s escape, or the risk of danger

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to the police or to other persons inside or outside the dwelling.” Minnesota v. Olson,

495 U.S. 91, 100 (1984). In these emergency situations, there is a “compelling need

for official action and no time to secure a warrant.” Michigan v. Tyler, 436 U.S. 499,

509 (1978). In addition to emergency situations, there are circumstances where an

officer can enter a home while performing “community caretaking functions.”

Hunsberger v. Wood, 570 F.3d 546 (4th Cir. 2009). The community caretaking

exception requires a court to “look at the function performed by a police officer”, while

the exigent/emergency exception looks to the “circumstances to determine whether an

emergency requiring immediate action existed.” Jd. at 554.

In a June 2021, this Honorable Court addressed the issue of exigency in

misdemeanor cases by answering the question of whether the court should continue

to look at the “totality of the circumstances” confronting the officer as he decides to

make a warrantless entry, or whether it should instead apply a “categorical warrant

exception” when a suspected misdemeanant flees from law enforcement into her

home. Lange v. California, 594U.S.___, ___ (2021) (slip op., at 5). In Lange, an officer

started tailing a vehicle because the occupant was listening to loud music with his

windows down and repeatedly honking his horn. The officer turned on his overhead

lights to signal that Lange should pull over, but he was only a few hundred feet from

his house, so Lange proceeded to drive into his driveway and park in his attached

garage. Jd. (slip op., at 1-2). The officer followed Lange into his garage, put him

through field sobriety tests, and the State charged him with the misdemeanor of

driving under the influence. The Court granted certiorari to determine whether the

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Fourth Amendment always permits an officer to enter a home without a warrant in

pursuit of a fleeing misdemeanor subject.

First, the Court identified the constitutional interest at stake: “the sanctity of

a person’s living space.” Jd. (slip op. at 5). The Court then addressed the exigent

circumstance of a hot pursuit and maintains that if an officer “needs to act quickly”

then a warrantless entry is permitted; but couples this rationale with the holding

that “the act of retreating into her house could not defeat an arrest that had been set

in motion in a public place.” Id. (slip op., at 7). Most of the lawful exigent

circumstances cases involve fleeing felons, but “the law regarding warrantless entry

in hot pursuit of a fleeing misdemeanant is not clearly established.” Id., citing

Stanton v. Sims, 571 U.S. 3, 6, 10 (2013).

Here, unlike in Lange, Carter was never in a public place.5 Carter was yelling

at the individuals on her front porch, and then at the officer once he approached, and

the Virginia Court of Appeals characterized her behavior as “disorderly.” App. at 94.

Even if Carter’s behavior was disorderly, it does not rise to the level of conduct

warranting a “hot pursuit” into Carter’s living space.

This Honorable Court drew a distinction between fleeing felons and fleeing

misdemeanants by noting two facts about misdemeanors: “They vary widely, but they

° Initially the officer charged Carter with the misdemeanor offense of obstruction of

justice in violation of Va. Code Ann. § 18.2-460(B). The Commonwealth claimed that

her refusal to answer his questions was grounds for probable cause to arrest Carter

for impeding his investigation which therefore warranted him to lawfully enter her

house and arrest her. Tr. 6/17/19 at 20. Such charge was ultimately dismissed by

the trial court because the ruling was contrary to law.

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may be (in a word) ‘minor’.” Lange (slip op., at 8). It further states that “application

of the exigent-circumstances exception in the context of a home entry should rarely

be sanctioned when there is probable cause to believe that only a minor offense is

involved.” Id. (slip op., at 9), citing Welsh v. Wisconsin, 466 U.S. 740, 753 (1984). The

Court again references its decision in Welsh when it states that there is “no evidence

suggestling] that every case of misdemeanor flight poses such dangers” because

“misdemeanors can target minor, non-violent conduct” and if that is the case then

officers “can probably take the time to get a warrant.” Id. (slip op., at 10). In Lange,

this Honorable Court ultimately held that:

The flight of a suspected misdemeanant does not always justify a warrantless

entry into a home. An officer must consider all the circumstances in a pursuit case to

determine whether there is a law enforcement emergency. On many occasions, the

officer will have good reason to enter—to prevent imminent harms of violence,

destruction of evidence, or escape from the home. But when the officer has time to get

a warrant, he must do—even though the misdemeanant fled.

Id. (slip op., at 16).

Here, Carter hardly “fled” the officer as she was already standing inside her

home and was simply trying to shut her door. Even if she was acting “disorderly” the

officer was not presented with circumstances that warranted crossing the threshold

of her home without a warrant. There was zero evidence of imminent harms of

violence, destruction of evidence, or escape from her home. In fact, it was Officer Reed

who escalated the violence towards Ms. Carter, by first and foremost, shoving his foot

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into the doorway through the threshold of Ms. Reed’s home, and second, by further

forcing his way into her home and placing her in handcuffs without informing her

that she was under arrest or even what she was under arrest for. This type of

egregious behavior places Officer Reed firmly outside the bounds of acting in a lawful

manner. Officer Reed was in violation of Ms. Carter’s Fourth Amendment right to

“retreat into her own home and be free from unreasonable government intrusion.”

Lange (slip op., at 5); Collins v. Virginia, 584 U.S. __, ___ (2018) (slip op., at 5).

In a Fourth Circuit case, United States v. Rollins, No. 4:18-01129-MGL, 2019

U.S. Dist. LEXIS 154677 (D.S.C. Sep. 11, 2019), officers responded to a 911 call.

During the call dispatch heard a male and female in the background, and heard the

female say, “[g]et out of my house” several times. Id. at *8. When the officers arrived

at the house, they observed that the side door was not latched, so an officer knocked

once to no avail, and when he knocked the second time it was with “such force” that

the door to the apartment opened at the same time that a female appeared. Id. at *4.

The officers announced themselves and asked her to come outside and talk to them

and asked if they could enter the residence. The female denied both officers’ requests

to come inside. One officer testified that at this point she “did not know if the female

was the instigator or the victim, or anything else about what happened.” Jd. at *5. As

that officer was speaking to the female, the other officer put his boot in the doorway

to prevent the door from closing, and as he did it, he “crossed the threshold into the

residence.” Id. He then shined his flashlight in and observed a bullet laying on the

floor. Id. at *4-*5. This observation led to the officer finding a firearm in the

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apartment, and the defendant was ultimately charged with possession of a firearm

by a convicted felon.

The Fourth Circuit’s opinion relied on the same principles laid out in Lange,

that the “physical entry of the home is the chief evil against which the wording of the

Fourth Amendment is directed”, so “searches and seizures inside a home without a

warrant are presumptively unreasonable.” Id. at *6-*7, quoting Payton, 445 U.S. at

586. The Court further stated that the “presumption of unconstitutionality that

accompanies ‘the warrantless entry into a home to conduct a search or make an

arrest’ may be overcome only by showing ‘consent or exigent circumstances.” Id. at

*7, quoting Steagald, 451 U.S. at 211. It found that no exigent circumstances existed.

The Fourth Circuit also noted the other exception to the warrant requirement

recognizing that “the police sometimes take actions not for any criminal law

enforcement purpose but rather to protect members of the public.” Id. at 8. The

community caretaker exception was adopted by the Fourth Circuit in Hunsberger v.

Wood, 570 F.3d 546, 553 (4th Cir. 2009).

Ultimately, the Court in Rollins found that when the officer pushed the door

open, he went further than the Fourth Amendment allows. It reasoned that there was

no evidence that anyone was in distress, or that the events giving rise to the phone

call were anything more than an argument, and that “without the unlawful intrusion

into the residence” there was no justification to enter the apartment. Id. at *9. Here,

akin to the finding in Rollins, Officer Reed had no justification to enter Carter’s home

without the unlawful act of putting his foot in the doorjamb crossing the threshold

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into her residence.

The Virginia Court of Appeals relied on the community caretaker exception to

justify the officer’s warrantless entry. App. at 9. However, this exception does not

apply because it requires the officer to be “totally divorced from the detection,

investigation, or acquisition of evidence relating to [a] violation of a criminal statute,”

Cady v. Dombrowski, 419 U.S. 438, 441 (1973). Here, Officer Reed testified that he

entered Carter’s house because he “wasn’t finished investigating.” App. at 43.

Therefore, neither the function being performed by the officer, nor the circumstances

of the incident presented the officer with emergency or exigent circumstances to

justify a warrantless entry into Carter’s home.

Here, because neither the exigent circumstances exception nor the community

caretaker exception applies, Officer Reed was clearly violating Ms. Carter’s Fourth

Amendment rights; and in turn, in knowing violation of the law.

in. tis irrelevant if Ms. Carter was under investigative detention because a

citizen cannot be detained within their own home.

The Virginia Court of Appeals conflated two separate Fourth Amendment

issues: the issue of whether Carter was seized with her right to be secure from

government intrusion in her home. Instead of determining whether Carter was

detained or arrested for purposes of finding whether she had the lawful right to resist,

the Court of Appeals should have first done a Fourth Amendment analysis to

determine whether the officer violated Ms. Carteyr’s right to be safe and secure inside

her home, followed by the question of whether he was permitted to detain her within

her home.

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The typical setting where an ‘investigative detention’ takes place is on the

public streets, or in public places. Terry v. Ohio, 392 U.S. 1 (1968). The purpose of an

investigative detention is to check for weapons or contraband, or “diligently pursue a

means of investigation that [would] likely confirm or dispel [an officer’s] suspicions

quickly.” Thomas v. Commonwealth, 16 Va. App. 851, 857-858, 434 S.E.2d 319, 323

(1993), quoting De Priest v. Commonwealth, 4 Va. App. 577, 587, 359 S.E.2d 540, 545

(1987). As the “investigative methods employed should be the least intrusive means

reasonably available to verify or dispel the officer’s suspicion in a short period of

time,” entry into one’s home is highly intrusive and therefore, the “usual rules

pertaining to Terry stops do not apply in homes.” Florida v. Royer, 460 U.S. 491, 500

(1983); Smith v. Jacko, Civil Action No. 2:16-655-BHH, 2019 U.S. Dist. LEXIS

149201, at *28-29 (D.S.C. Aug. 30, 2019); citing United States v. Martinez, 406 F.3d

1160, 1165 (9th Cir. 2005).

The Virginia Court of Appeals found that Carter’s “unruly and belligerent”

behavior, and her failure to “cooperate” with the officer barred her from executing her

right to retreat into her home. App. at 95. It further found that when the officer placed

his foot over the threshold of Carter’s home, he was detaining her for investigatory

purposes, which was within the scope of his public duties. App. at 95. Relying on

Thomas, 16 Va. App. at 434, the Virginia Court of Appeals held that the when the

officer briefly deprived Carter of her liberty (when he prevented her from shutting

the door to her home), he was detaining her. Following that logic, it found that when

Carter shut her door on the officer’s foot, she therefore battered him in violation of

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Va. Code Ann. § 18.2-57(C) without legal justification. App. at 95-96. But what the

Virginia Court of Appeals failed to address is that in Thomas, the officer detained the

defendant after he observed him coming around from the backside of a motel, not

when he was inside his home. Id. at 857. Thus, for the officer to be acting within the

scope of his public duties, he would have had to detain Carter outside her home where

she was not awarded her Fourth Amendment right to be free from government

intrusion.

Officer Reed was a trespasser when he breached the threshold of Carter’s

home. The officer was in violation of Va. Code § 18.2-119, and he violated Carter’s

Fourth Amendment constitutional rights. Even if the Virginia Court of Appeals and

the Supreme Court of Virginia were correct in finding that a trespass did not occur,

when the officer breached the threshold of Carter’s home without a warrant, she was

under arrest because one cannot be detained inside the privacy of their home. And, if

she was under arrest when she shut the door on the officer’s foot, she was resisting

an unlawful arrest.

X. Conclusion

For the foregoing reasons, Latoya Nicole Carter, by and through the

undersigned counsel, respectfully requests that this Court issue a writ of certiorari

to review the judgment of the Virginia Supreme Court. This case presents this Court

with unique opportunity to clarify some of its previous decisions and prevent

overreaching actions by law enforcement.

6 Appellant maintains that the officer was trespassing, as discussed above.

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DATED this 7th day of June, 2022.

Respectfully submitted,

MATTHEW L. PACK*

PACK LAW GROUP

423 Ek. MAIN STREET

P.O. BOX 258

Bedford, VA 24523

(540) 586-7225

matt@urvalawyer.com

Attorney for Petitioner

*Counsel of Record

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