Petition for Writ of Certiorari — Terrence R. Yoast, Petitioner v. Pottstown Borough, Pennsylvania, et al.

No.

nnn

In the Supreme Court of the United States

TERRENCE R. YOAST,

Petitioner

V.

POTTSTOWN BOROUGH, Ft. al.

Respondents

On Petition for a Writ of Certiorari from the United States

Court of Appeals for the Third Circuit

PETITION FOR A WRIT OF CERTIORARI

Terrence R. Yoast, Petitioner

1724 Bantry Drive

Dresher, PA 19025

(267) 718-6034, Tyost97@aol.com

QUESTIONS PRESENTED

1. Under the Fourth Amendment’s in-presence

requirement, a police officer who conducts a

warrantless arrest on a person accused of a

misdemeanor, or lesser offense, must be present and

personally visual to the alleged crime to have the

probable cause necessary to effectuate a lawful

seizure.

2. Heck v. Humphrey does not bar § 1983 claims for

false arrest, false imprisonment or excessive bail,

which are unrelated to an outstanding conviction

and does not preclude malicious prosecution claims

arising from charges that terminated favorably,

within the context of a mixed verdict.

3. It is well-established that police officers who

warrantlessly enter into a private buildingstructure, in the absence of consent or exigency,

violate the Fourth Amendment and do not enjoy

qualified immunity.!

' Subsidiary to all (3) questions presented is Petitioner’s sharp contention that

cognizable § 1983 claims were stated in his Amended Complaint and error was

committed by dismissing his Fourth and Eighth Amendment claims on Rule 12 (b)

(6) review.

il

LIST OF PARTIES

Petitioner, Terrence R. Yoast, enumerates the

following parties that are pursued herein and. privy to this

request for certiorari:

Respondent, Corporal Jamie O'neill.

Respondent, Sergeant Michael Ponto.

Respondent, Officer Jacob Martin.

Respondent, Officer Jeffrey Portock.

Respondent, Officer Chad Hart.

Respondent, Officer Corey Pfister.

Respondent, Chief Richard Drumheller.

Respondent, Corporal Michael Long.

ONO TR ON

STATEMENT OF RELATED CASES AND

PROCEEDINGS

Parallel to this appeal is the pending action of Yoast

v. Pottstown Borough Et. al., Case No. 2020-04151,

commenced in the Montgomery County Court of Common

Pleas on March 4h, 2020. The bulk of this case composes

the Pennsylvania common law claims origin to Petitioner’s

Federal Complaint filed in the District Court on February

21st, 2019, brought against the Pottstown Respondents,

collectively. Subsequently, these supplemental state law

claims were dismissed without prejudice on February 3*4,

2020, when the District Court dismissed Petitioner’s

Federal § 1983 claims, with prejudice, and declined to

exercise supplemental jurisdiction.

ili

TABLE OF CONTENTS

PAGES

Questions Presented..........ccccccscssccsccescssseesereesereeesecccees, i

List of Parties.............ccccececsesssssssutssssseseecececeeeeececeecece. ii

Related Cases and ProceedingS.............sececcecesesecsecsecees.. ii

Table of Authorities..............ccccceseesssseecsecceceeeeececcecceee., Vv

Lowers out ‘OpiiOrlssnmeneeaearcoianeecsien =... 1

JUTISCICLION wcrsnssuseasswvsvavvencanedineiSEEESes ove eoneeneos oeeveeeceeces 1

Constitutional and Statutory Provisions......cccccccec00c00...... 1

Statement of the Case...........cccccccsecessesesececeeseeceeeccceccce. 3

Reasons for Granting the Petition.......c.ccccccccsscccescocececescoees.. 9

A. The inferior circuits are directly in

tension with this Court’s chain of

precedent on the Fourth Amendment’s

IN-PYESENCE FEQUITEMENL..........ccecscessscscseseseseceesececececes. 9

B. The Third Circuit’s version of the

Heck-bar conflicts with this Court’s

precedent in Wallace and Hecheoe.ccccccccccccccceceees. 15

iv

C. The Third Circuit’s version of

the Heck-bar conflicts with the

Second, Seventh and Eleventh

Circuit’s version when determining

favorable termination under

the context of a mixed verdict...........cceccccceeeeeeecs. 19

D. The Third Circuit’s affirmance of

qualified immunity contravenes

this Court’s well-established

precedent that police officers who

warrantlessly enter a private buildingstructure, devoid of consent or exigency,

violate the Fourth Amendment...........6...cccccceeees. 22

Conclusion sccsssssusssssusserssisisascnenensenepnernnereveensnenenevessveosscevovcece, 26

Appendix A- Order denying en banc rehearing............ A1-A3

Appendix B- Third Circuit Opinion .........cccccccecececeees. A4-A13

Appendix C- Eastern District Opinion..................... A14-A75

Vv

TABLE OF AUTHORITIES

CITATION OF PRECEDENT

Hutto v. Davis, 454

U.S. 870, 875 (1982) ceccccccccsscsccecsvessesecseseeee.

District of Columbia v. Wesby,

138 S. Ct. 577 (2018) viicccccccccccccccrsseceseececscceees

Virginia v. Moore,

553 U.S. 164 (2008) vecceccccccscecssscsscevsecsecesseesees

Maryland v. Pringle,

540 U.S. 866 (2008) vecceccccccsceccecccccecseccecceceecee.

Atwater v. Lago Vista,

582 U.S. 818, 845 (2001) vorcecccccecccccscceccsscsesece.

United States v. Watson,

423 U.S. 411 (1976) coccccccccccsecsscsesssesscecseseseeees

Draper v. United States,

858 U.S. 807 (1959) ciececcccccccecsecsscsscesceceeseeese.

Brinegar v. United States, 338 U.S.

160, 164, 170, 175-176 (1949) oo. .eececccccccuseccccees

Carroll v. United States,

267 U.S. 182 (1925) vccecccccessessecesssecessceccecsesce.

Vi

Wilson v. Arkansas,

B14 U.S. 927-931 (1995) viccccccccccscccccsescecccscscccevecsececces, 12

Graves v. Mahoning County, 821

F.3d 772, at *778-779 (6th Cir, 2016) ceccccccccccceccccccccccece. 12

Budnick v. Barnstable Cty. Bar

Advocates, Inc., 989 F.2d 484, at *3n. 7

(1st Cir. 1993) (per curiam) (unpublished) ...... 60. ccc ccecee ee. 12

Street v. Surdyka, 492 F 2d

B68, 372 (Ath Cir, 1974) oo. ceccccsscccccseccccsececcscuecccceecccsees 12

Fields v. City of South Houston,

922 F.2d 1183, 1189 (Sth Cir. DIOL) veececccccccccccccccccececece 12

Woods v. City of Chicago,

234 F.3d 979, 992-95 (7th Cir. 2000) .occccccccccccccccceccecees 12

Barry v. Fowler, 902 F 2d

770, 772 (Oth Cir, 1990) ..ccecccccccccccseccccrssecseceeecccuseccesee, 12

Vargas—Badillo v. Diaz-Torres,

114 F.8d 3, 5-6 (Ist Cir, 1997) veccccccccccccccccceccccccusecccess 12

Veatch v. Bartels Lutheran Home,

627 F.3d 1254, 1258-59 (8th Cir. LOLO) suseewatsieizisrvacoseye 13

Knight v. Jacobson,

300 F.3d 1272, 1276 n. 3 (11th Cir. 2002) ....cccccceceeceeceee 13

Vii

Yoast v. Pottstown Borough Et. al., 437

F.Supp. 3d 403, at footnote 130 (ED. Pa 2020) weccecccccceces 13

Hartz v. Campbell, 680 F.

Appx 703, 707 (10% Cir. 201 7) vecmmmemecuianigempeimopuncemcmmtn: 13

Wallace v. Kato,

DAD U.S. 884 (2007) vicceccccsccssessesecsecseececsesceccececcececee, 15

Heck v. Humphrey,

912 US 477 (1994) «<swazowuussanscusarsaceiiepseacseeneaeusceasamenes 15

Stack v. Boyle, 342

OS. 1, 6 (L951) vicccccccccccccccssssssssssssssessssssesesseseeeeeecese...16

Fields v. Henry County, 701

F.3d 180 (6% Cir. 20 12) epamecnmnap mena cgemcrea remem aewumtcame 16

United States v. Beaman, 631

F.2d 85, 86 (6% Cir. 1) 16

Wagenmann v. Adams, 829

F.2d 196, 213 (1% Cir. LIBT) cocccccccccccccucccccccccecuncesecuceces 17

James v. York Cty. Police Dept.,

160 F. App’x 126, 133 (3'4 Cir. QOOS) vececccccceccecscecccecncecs 17

Sharif v. Piccone, 740 F.3d

268, 269-70 (3'4, Cir. BOTA) vececccccscccccrescuceseceuecuceeanuecees 17

viii

Kossler v. Crisanti, 564 F.3d

181, at *193 (84 Cir, 2009) vecccccccccccccccccccceccecceccoccecsesecc. 19

Noviho v. Lancaster County,

683 F. App’x 160 (3' Cir. 201 i 19

Holmes v. Village of Hoffman,

511 F.3d 673 (7h Cir. ZOD) ccumscinnenmesncaeus ene scare mmeenercccecs 19

Uboh v. Reno, 141 F.3d

1000, 1005 (11 Cir. A) 19

Posr v. Doherty, 944 F.2d

91, 100 (24 Cir, 1991) occeccccccccscsecccccccssseesseeseececsececcce, 19

Janetka v. Dabe, 892

PL2d 187 (24 Cir, 1989) icccccccsscssscsssssssscsececsecerseeseesece. 19

Maio v. Aetna, Inc., 221 F.3d

472, 481-82 (24 Cir. 2000) suswaiwessinans iscssossrisceseeaseonserese 23

Kost v. Kozakiewicz, 1 F. 3d

176, 183 (3° Cir, 1998) cecccicccccessecceccesseseeseescecceceeccse., 23

Johnson v. Campbell, 332

F.3d 199, 204 (8d. Cir. 2008) veccecccccoccccescecseeccecceceeccse.n. 23

Spruill v. Gillis, 372 F 3d

218, 223 (3'¢ Cir. 2004) .....nexnecmsanmmmcgurerssmccuretesiseccce: | 24

Anderson v. Creighton,

483 U.S. 635 (1987) wscwssssscewasnsvesiissiiidaveneceoeronmmesaneovess 25

ix

Devenpeck v. Alford,

543 U.S. 146, 152 (2004) vocceccccccccsscsccnceeees

Groh v. Ramirez, 540

U.S. 551, 564 (2004) voccecccceccccsscesscessceceeces

Hope v. Pelzer, 536

U.S. 730, TAI (2002) vo. cecccccccesecsccccaseeseeeeas

Payton v. New York, 445

U.S. 573, 590 (1980) vecccccccscccesecessssvseeeeces

Collins v. Virginia,

188 S. Court 1663 (2018) c.ceccccccccsccecsecesee.

Welsh _v. Wisconsin,

466 U.S. 740 (1984) vo eeccccccccccccucccuseceeeecees

Fee eee eee eee eee

l

LOWER COURT OPINIONS

The non-precedential Opinion rendered by the

Third Circuit Court of Appeals is denominated as Yoast v.

Pottstown Borough Et. al, No. 22-1960 (3'¢ Cir. 2028)! and

the Eastern Districts Opinion is cited as Yoast v. Pottstown

Borough Et. al., 437 F.Supp. 3d 403 (ED. Pa 2020).?

JURISDICTION

Petitioner lodged a timely Petition for En Banc

Rehearing on July 24th, 2023, within 14 days of the J uly

10th, 2023, Opinion rendered by the Third Circuit,

affirming the Eastern District’s dismissal of Petitioner’s §

1983 claims under Fed. R. Civ. P. 12 (b) (6). The Third

Circuit denied en banc rehearing on August 15th, 2023,

commencing the 90-day allotment for this Certiorari

Petition. King’s Bench jurisdiction flows from the

codification promulgated at 28 U.S.C. §1254 (1).

CONSTITUTIONAL AND STATUTORY PROVISIONS

FOURTH (474) AMENDMENT

“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

1 See Appendix “B”, A4 through A13.

2 See Appendix “C”, Al4 through A75.

3 See Order annexed as Appendix “A”, Al through A3.

2

describing the place to be searched, and the persons

or things to be seized.”

EIGHTH (8™) AMENDMENT

“Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments

inflicted.”

42 U.S.C. § 1983

“Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State

or Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof

to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at

law, suit in equity, or other proper proceeding for

redress, except that in any action brought against a

judicial officer for an act or omission taken in such

officer’s judicial capacity, injunctive relief shall not

be granted unless a declaratory decree was violated

or declaratory relief was unavailable. For the

purposes of this section, any Act of Congress

applicable of exclusively to the District of Columbia

shall be considered to be a statute of the District of

Columbia.”

3

18 Pa.C.S. § 2709.1 STALKING

(a) Offense defined- A person commits the crime of

stalking when the person either:

(1) engages in a course of conduct or repeatedly

commits acts toward another person, including

following the person without proper authority,

under circumstances which demonstrate either an

intent to place such other person in reasonable

fear of bodily injury or to cause substantial

emotional distress to such other person; or

(2) engages in a course of conduct or repeatedly

communicates to another person under

circumstances which demonstrate or communicate

either an intent to place such other person in

reasonable fear of bodily injury or to cause

substantial emotional distress to such other

person.

STATEMENT OF THE CASE

The genesis of this controversy arises from the

aftermath of an overly officious Pottstown Police

Department and their nefarious decisions to joint venture

in an escapade of official oppression against Petitioner.

Petitioner is the landlord and owner of real property

located at 402 Beech Street, Pottstown, PA 19464,

composing a parcel of land with a two (2) unit residential

building-structure. On or about November 18th, 2016,

4

Petitioner entered into a residential lease with Defendant,

Aphrodite Hussain, for the purpose of letting the dwellingunit located at 402 Beech Street 24 Floor.4 Defendant

Hussain was qualified and privileged to participate in the

federally-funded Housing Choice Voucher Program, which

was administered by the Montgomery County Housing

Authority as the local agency of jurisdiction to subsidize

rental payments on her behalf. Petitioner began receiving

hostile and threatening text messages from Defendant

Hussain starting in December of 2016, regarding the

fitness of the apartment that she leased from him. On or

about mid-December of 2016, the alleged victim began her

machination to subterfuge the term of her lease and exploit

the Pottstown Police. Frankly, as far as Petitioner is

concerned, the landlord-tenant relationship was only

minimally strained prior to intervention of the Pottstown

Police Department, who exacerbated the situation with a

series of criminal complaints and summary offense

citations. Commencing on December 27h, 2016, and

concluding on March 24, 2017, Petitioner was blitzed by

the Pottstown Police with a conglomeration of various

charges, including the two (2) stalking charges at issue,

which terminated favorably and were the active

ingredients to his confinement. Petitioner was

warrantlessly arrested not just once, but twice, for

misdemeanor crimes that were alleged to have been

committed outside the presence of the arresting officers,

4 Pertaining to the adverse parties who were named in this action as

Defendants in the District Court but are not Respondents or privy to

this Writ of Certiorari, Petitioner will identify and reference each of

them as a defendant, respectively.

5

absent any visual observation of the alleged conduct.

Notwithstanding this fatal defect, Petitioner was then

warehoused in the Montgomery County Correctional

Facility (MCCF) for eleven (11) total days as a pretrial

detainee. Exacerbating matters further, Petitioner was

encumbered with heavy-duty bail amounts of twentythousand dollars ($20,000.00) cash on F ebruary 26th, 2017,

and ninety-nine thousand dollars ($99,000.00) cash on

March 24, 2017, after one-million dollars ($1,000,000.00)

cash was requested, while posing no flight-risk. The

Pottstown Police maliciously and wantonly brought a total

of five (5) individual cases against Petitioner, consisting of

two (2) Summary Offense Citations and three (3) Criminal

Complaints.5

The first (15*) case was lodged against Petitioner on

December 27h, 2016, by Defendant, Officer Fischer, which

consisted of a summary offense citation for allegedly

having “unprofessional communications” within the scope

of text messages that were exchanged between Petitioner

and Defendant Hussain, who was the alleged victim. The

Summary Offense Citation was predicated on Title 18, §

2709 of the Criminal Code, Subsection (A-3),

“Harassment”. Defendant Fischer’s Summary Offense

5 Petitioner paragraphs each of the (5) cases independently for the ease

of review, seriatim. Focally, the fourth and fifth cases go right to the

core of this Petition. These proceedings are central to the (3) questions

presented on this review, deriving from Petitioner's false

arrest/imprisonment and excessive bail on February 26th and March 274

of 2017. The first three incidents have been narrated only for the sake

of procedural history.

6

Citation was vague, omitting the violative contents within

the text message communications that were conveyed by

Petitioner to Defendant Hussain and that grounded the

filing of his summary harassment charge. Defendant

Fischer’s summary harassment charge was subsequently

withdrawn by Brianna Ringwood, Esquire, who was the

Assistant District Attorney (ADA), serving as the

prosecutor for the Commonwealth on other successive

charges that were brought against Petitioner. Defendant

Fischer’s summary harassment offense was withdrawn at

the Preliminary Hearing before the Honorable Magisterial

District Justice, Edward C. Kropp Sr., on March 29th, 2017,

but was componentized as an “act” under § 2709 of the

Harassment Statute, Subsection (A-3), and merged into a

“course of conduct” that was vaguely alleged in a

subsequent Criminal Complaint filed by Defendant, Officer

John Schmalbach, on January 9th, 2017.

The second (2"4) case that was lodged against

Petitioner on January 9th, 2017, by Defendant Schmalbach,

instituted a Criminal Complaint against Petitioner that

alleged an infraction of 18 Pa.C.S.A. §2709 (A-7),

“Harassment Repeatedly in Another Manner”, graded asa

third-degree misdemeanor (M-3). The gravamen of the

Criminal Complaint alleged that Petitioner called

Defendant Hussain “a horrible mother that didn’t care uf

she burned her child”, responsive to her request to raise the

temperature on the hot-water-heater. Defendant

Schmalbach’s Affidavit of Probable Cause baldly alleged a

course of conduct through the origin of two (2) prior text

message communications that were conveyed from

7

Petitioner to Defendant Hussain. Petitioner was found not

guilty of Defendant Schmalbach’s third-degree

misdemeanor (M-3) charge after a consolidated bench trial

on September 27th, 2017, resulting in a favorable

termination to Petitioner.

The third (3"4) case was lodged against Petitioner on

February 215, 2017, by way of summary offense citation

issued by Respondent, Officer Jeffrey Portock. Respondent

Portock alleged that Petitioner intended to harass, annoy

and alarm Defendant Hussain by photographing her mail.

Respondent Portock’s summary harassment charge was

withdrawn at bench trial on September 27th, 2017,

resulting in a favorable termination to Petitioner.

The fourth (4b) case was lodged against Petitioner

on February 26th, 2017, by way of Criminal Complaint filed

by Respondent, Corporal Jamie O'neill, charging him with

stalking, graded as a first-degree misdemeanor (M-1), after

Petitioner performed yardwork, removed leaves and was

legitimately installing a washer/dryer for Defendant

Hussain in Petitioner’s basement, as provisioned in the

residential lease, and either directly or implicitly requested

by her on seven (7) separate occasions. Respondent

O’neill’s stalking charge was subsequently withdrawn at

the Preliminary Hearing on March 29%, 2017, by Assistant

District Attorney (ADA) Brianna Ringwood, resulting in a

favorable termination to Petitioner.

The fifth (5) case was lodged against Petitioner on

March 274, 2017, by way of Criminal Complaint filed by

8

Respondent Portock, charging him with stalking, graded as

a first-degree misdemeanor (M-1) and harassment, graded

as a third-degree misdemeanor (M-3), after he allegedly

kicked Defendant Hussain’s vehicle bumper. Petitioner

was found not guilty of both misdemeanors, resulting in a

favorable termination.

All three (3) criminal court cases were held for court

and then consolidated for bench trial on September 27+,

2017. The bench trial lasted almost six (6) hours and

concluded well-after closing of the Courthouse. Because

the Commonwealth was advantaged from the numerosity

of charges and cases brought against Petitioner, in

conjunction with their fact-witnesses who were called to

the stand with carte blanche to fabricate any inconsistent

testimony favorable to prosecution that was found to be

credible by the trier-of-fact, who was not cognitive when

reaching his credibility determinations, Petitioner was

found guilty of two (2) summary offenses. Petitioner

appealed to the Superior Court of Pennsylvania on

November 30¢, 2017, and timely filed his Appellant Brief

on June 6th, 2018, raising challenges of legal insufficiency

for appellate review. Appellant argued before the Panel on

January 8th, 2019, and the Superior Court affirmed the

Trial Court’s decision in a non-precedential Opinion on

May 29th, 2019. Petitioner was then granted panel

reconsideration on July 31st, 2019, and ironically, the

Merits Panel reaffirmed the lower Court in a second nonprecedential Opinion issued on September 19*, 2019.

Thereafter, Petitioner sought allocatur and his Petition for

9

Allowance of Appeal was denied by the Pennsylvania

Supreme Court on March 24th, 2020.6

REASONS FOR GRANTING CERTIORARI

A. The inferior Circuits are directly in tension with

this Court’s chain of precedent on the inpresence requirement under the Fourth

Amendment (18 question presented)

Prefatorily, it is hornbook that:

“Decisions of the Supreme Court regarding federal

law and the constitution are binding on the lower

courts. There is no room in our system for departure

from this principle, for it were otherwise, the law of

the land would quickly loose its coherence.” Hutto v.

Davis, 454 U.S. 370, 375 (1982) (The Supreme Court

with its limited docket would become irrelevant in all

but the handful of cases that reached it).

As the old story goes in this Nation, when it comes

to a misdemeanor, or lesser offense, police officers can

effectuate a warrantless arrest upon an individual in a

public place, under the Fourth Amendment, only if they

have probable cause that the crime was committed in their

presence. Visually observing the crime, in person, is the

6 The Commonwealth of Pennsylvania was recalcitrant in the filing of

their Appellee Brief and was precluded from oral argument before the

Superior Court Panel. Nevertheless, the Superior Court still affirmed

the lower Court’s decision on appeal.

10

sine qua non to the finding of probable cause and if no such

offense was committed in the officer’s presence, there is no

probable cause to conduct an arrest. District of Columbia

uv. Wesby, 138 S. Ct. 577 (2018) (A warrantless arrest is

reasonable tf the officer has probable cause to believe that

the suspect committed a crime in the officer’s

presence); Virginia v. Moore, 553 U.S. 164 (2008) (“We

reaffirm against a novel challenge what we have signaled

for more than half a century. When officers have probable

cause to believe that a crime has been committed in their

presence, the Fourth Amendment permits them to make an

arrest, and to search the suspect in order to safeguard the

evidence and ensure their own safety.”) Maryland v.

Pringle, 540 U.S. 366 (2003) (“If an officer has probable

cause to believe that an individual has committed even a

very minor criminal offense in his presence, he may,

without violating the Fourth Amendment, arrest the

offender.”); Atwater v. Lago Vista, 532 U.S. 318, 345 (2001)

(“Atwater’s arrest satisfied constitutional requirements. It

is undisputed that Turek had probable cause to believe that

Atwater committed a crime in his presence.”); United

States v. Watson, 423 U.S. 411 (1976) (“Whether or not a

warrant ts ordinarily required prior to making an arrest, no

warrant is required when exigent circumstances are present.

When law enforcement officers have probable cause to

believe that an offense is taking place in their

presence and that the suspect is at that moment in

possession of the evidence, exigent circumstances exist.

Delay could cause escape of the suspect or the destruction of

euidence.”), Draper v. United States, 358 U.S. 307 (1959);

Brinegar v. United States, 338 U.S. 160, 164, 170, 175-176

(1949); Carroll v. United States, 267 U.S. 132 (1925) (“The

11

usual rule is that a police officer may arrest without

warrant one believed by the officer upon reasonable cause to

have been guilty of a felony, and that he may only arrest

without a warrant one guilty of a misdemeanor if

committed in his presence.”). In Carroll, supra, this

Court further expressed the following common law maxim

that was adopted from old English law:

“By the common law of England, neither a

civil officer nor a private citizen had the

right without a warrant to make an arrest for

a crime not committed in his presence, except

in the case of felony, and then only for the

purpose of bringing the offender before a civil

magistrate.”

The Carroll Panel further explained:

“Any law which would place the keeping and

safe-conduct of another in the hands of even a

conservator of the peace, unless for some

breach of the peace committed in his presence,

or upon suspicion of felony, would be most

oppressive and unjust, and destroy all the

rights which our constitution guarantees.

These are rights which existed long before our

Constitution, and we have taken just pride in

their maintenance, making them a part of the

fundamental law of the land. If persons can

be restrained of their liberty, and assaulted

and imprisoned, under such circumstances,

without complaint or warrant, then there is

12

no limit to the power of a police officer.”

Deeply-rooted in this Court’s jurisprudence is the

bedrock principle that when evaluating the Fourth

Amendment’s search and seizure clause, the traditional

protections afforded by common law when the Constitution

was framed are guaranteed. Wilson v. Arkansas, 514 U.S.

927-931 (1995); citing Watson, supra, at *418-420; Carrol

supra, at *137, 146, 156-157, and 164-165.7

Patently, this ancient pedigree is faltering in the

inferior courts and has lost its constitutional potency in the

First, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth,

Tenth, and Eleventh Circuits. This path of destruction is

illuminated in the compilation of cases cited in Graves v.

Mahoning County, 821 F.3d 772, at *778-779 (6 Cir. 2016)

(“Other circuits agree with our approach. See, e.g., Budnick

v. Barnstable Cty. Bar Advocates, Inc., 989 F.2d 484, at *3

n. 7 (Ist Cir.1993) (per curiam) (unpublished); Street v.

Surdyka, 492 F.2d 368, 372 (4th Cir.1974) ; Fields v. City of

South Houston, 922 F.2d 1188, 1189 (5th Cir.1991) ; 779

*779 Woods v. City of Chicago, 234 F.3d 979, 992- 95 (7th

Cir.2000) ; Barry v. Fowler, 902 F.2d 770, 772 (9

Cir. 1990); see also, e.g., Vargas—Badillo v. Diaz-Torres, 114

F.3d 3, 5-6 (Ist Cir.1997) ; Veatch v. Bartels Lutheran

7 Profoundly, Petitioner believes this is where the source of confusion

germinates across the Circuit Courts. The Fourth Amendment’s search

and seizure clause is a broad writing intended to companion old

English common law. If certiorari is granted, this Hierarchy should

recast the mechanics of Carrol and put to rest any false notions that

the in-presence requirement needs to be carved-out, verbatim, in the

Constitution.

13

Home, 627 F.3d 1254, 1258-59 (8th Cir.2010); Knight v.

Jacobson, 300 F.3d 1272, 1276 n. 3 (11th Cir.2002)”).

Compounding further, the Third Circuit has now adopted

the same flagrant approach by affirming the Eastern

District in this action. See Yoast v. Pottstown Borough Et.

al., 437 F.Supp. 3d 403, at footnote 130 (ED. Pa 2020);

citing Graves, supra, and Hartz v. Campbell, 680 F. Appx

703, 707 (10% Cir. 2017).8

Pulling the wheat from the chaff, it is abundantly

clear from this Court’s continuity of holdings, the inpresence maxim was never overruled by any U.S. Supreme

Court Panel. Premiering prior to 1925, this doctrine

gained its legal horsepower in Caroll, supra, and its

momentum continued in this Court as binding precedent

through 2018, when this Court opined in District of

Columbia v. Wesby, supra.? Ostensibly, the inferior Circuits

have isolated various fragments of this Court’s

jurisprudence over the years, misconstruing the true

holdings that bind all lower Federal Circuits.

8 See Appendix “C” at A54-A55, footnote 130. Specifically, the Eastern

District based their rejection of Petitioner’s Fourth Amendment inpresence argument on the Tenth Circuit's non-precedential opinion in

Hartz, supra, and their faulty inference of footnote 11 in Atwater. Also,

see Vol. 1 of Petitioner’s Appendices, Appendix “E”, at page 33, filed in

the Third Circuit. If footnote 11 of Atwater spurred any confusion

among the Circuits, it was finely resolved when this Court decided

Maryland v. Pringle in 2003, Virginia v. Moore in 2008, and District of

Columbia v. Wesby in 2018.

° Collectively, Petitioner refers to this line of cases as Caroll and its

progeny. Carrol is the polestar case that is most instructive, framingout the national floor on Fourth Amendment seizures and crafting the

bare minimalities that guide an arrest.

14

Quintessentially, as recently as 2017, the 10th Circuit

deviated from the controlling and dominate language of

Atwater, supra, hinging their decision on footnote 11 of the

Opinion. See Hartz, supra. Drawing all inferences, there

was no abrogation of the in-presence requirement when

this Court decided Atwater. Rather, the majority authored

an ambiguous statement in a footnote, consisting of dicta,

which was subordinate to the explicit holding purified

throughout the main body of the Opinion.!° The same

' On page 340 of Atwater, the sentence preceding footnote 11 reads: “In

discussing this authority, we have focused on the circumstance that an

offense was committed in the officer’s presence, to an omission of any

reference to a breach-of-the-peace limitation”. Thereafter, footnote 11

sets forth: “We need not, and thus do not, speculate whether the Fourth

Amendment entails an “in the presence” requirement for purposes of

misdemeanor arrests. Cf. Welsh_v. Wisconsin, 466 U.S. 740, 756 (1984)

(White, J., dissenting) (“The requirement that a misdemeanor must

occur in the officer’s presence to justify a warrantless arrest is not

grounded in the Fourth Amendment”). Construed in harmony with the

main body of the Opinion, it is very deducible that the scrivener was

expressing the majority’s stern confidence in maintaining the inpresence requirement, as repleted throughout the Opinion, and that

particular legal conclusion did not call for speculation. Thus, the Court

specifically partitioned from the dissenting Opinion of Judge White in

Welsh. Otherwise, this dicta would run afoul of the underlying

rationale that supported this Court’s decision in Atwater, Logically,

the Panel did not intend to blow hot and cold in the same Opinion.

Unequivocally, the in-presence requirement, as to any crime or offense

committed within the personal visuality of the arrestor, was the

lifeblood and thrust of Atwater, when this Court refused to restrict an

officer’s arrest to a “breach of peace” in their presence. Petitioner finds

it incomprehensible and troubling that the inferior circuits have boldly

departed from such a precious concept of liberty prior to trial. If an

arrest.can be validated as committed in the presence of the arrestor, it

15

misconceptions run throughout the body of case law

delineated above in the inferior circuits, standing in

defiance of the hallmarks enshrined by this Court in Carrol

and its progeny. Furthermore, a warrantless arrest is an

unlawful detention without legal process and remediable

through the tort of false imprisonment. Wallace v. Kato,

549 U.S. 384 (2007) (at *389).

B. The Third Circuit’s version of the Heck-bar

conflicts with this Court’s precedent in Wallace

and Heck (24 question presented)

Starting with the first (1s*) component of the second

(24) question presented, this Court’s rubric is that “a claim

for damages bearing that relationship to a conviction or

sentence that has not been so invalidated is not cognizable

under § 1983”. See Wallace at *385; citing Heck v.

Humphrey, 512 US 477 (1994). The District Court found

that Petitioner's false arrest/imprisonment and excessive

bail claims were Heck-barred, which was affirmed by the

Third Circuit. There is no nexus between these claims,

which were origin to pretrial events, and Petitioner’s posttrial “conviction or sentence”. Thus, Petitioner’s § 1983

claims are dehors the Heck-bar, which operates to preclude

claims that would impugn an existing conviction if

successful.

First, as to Petitioner’s (2) false arrest and (2) false

imprisonment claims under the Fourth Amendment, there

certainly can be invalidated as alleged to have been committed outside

the presence of the arrestor.

16

is no confliction with the (2) summary harassment

convictions because they do not carry a presumption of

probable cause for his warrantless seizures because it is

mandatory that any crime graded less than a felony, such

as a misdemeanor or summary offense, must occur in the

presence of the arrestor. See Caroll and its progeny, supra.

As this Court pronounced in Wallace, there must be a

“relationship to the conviction or sentence.”

Second, pertaining to Petitioner’s (2) excessive bail

claims under the Eighth Amendment, the affixing of bail

has no scintilla of relevance to the Heck-bar and because

there is no interplay, there is no potential of invalidating

the (2) summary harassment convictions if Petitioner were

to prevail under §1983. Irrespective of innocence or guilt,

the salutary purpose of fixing bail is to ensure appearance

of the defendant at subsequent hearings that are

perfunctory to the criminal process and to secure

attendance of the accused at trial. Stack v. Boyle, 342 U.S.

1, 6 (1951); Fields v. Henry County, 701 F.3d 180 (6% Cir.

2012). The Eighth (8) Amendment mandates that bail

must be assessed pursuant to what amount would be

reasonably sufficient and forceful in compelling the

answering defendant’s presence throughout the criminal

proceedings. See Stack and Fields, supra. The test for

excessiveness is whether the amount of bail is reasonably

calculated to assure the defendant’s appearance at trial.

United States v. Beaman 631 F.2d 85, 86 (6'" Cir. 1980).

The guarantee of continued confinement, through the

imposition of elevated bail, constitutes an impropriety and

is unconstitutional under the Eighth (8t») Amendment.

17

Fields, supra; Wagenmann v. Adams, 829 F.2d 196, 213 (1%

Cir. 1987).

Oppressively, Petitioner’s bail was affixed at

$20,000.00 cash on February 26+, 2017, upon the request

of Respondent O'neill, while posing no flight-risk.

Outrageously, Petitioner’s bail was then assessed at

$99,000.00 cash on March 24, 2017, upon Respondent

Portock’s request for $1,000,000.00 cash, while posing no

flight risk. The District Court raised the Heck-bar to both

excessive bail claims sua sponte, relying on the nonprecedential case of James v. York Cty. Police Dept., 160 F.

Appx 126, 133 (3'¢ Cir. 2005). Precedent set by this Court

that formally adopts the First Circuit’s seminal and

persuasive decision in Wagenmann, supra, that a police

officer’s manipulation of bail constitutes a breach of the

Eighth (8t») Amendment’s excessive bail clause, would set

the tone in this Nation, serving as a flagship in the Eighth

(8th) Amendment arena.

Ironically, the District Court never performed a

fact-intensive inquiry by carefully reviewing the entire

Bench Trial Transcript to determine what factual findings

were made on September 27h, 2017, as commanded by the

stare decisis of the Circuit. This protocol is compulsory in

the Third Circuit. See Sharif v. Piccone, 740 F.3d 263, 269-

70 (34, Cir. 2014) (Application of the Heck-bar is, of

necessity, a fact-intensive inquiry by which a court must

determine what essential facts were found by the jury in the

criminal trial and what affect those decisions have on the §

1983 claim). Moreover, these claims derive entirely from

18

the pretrial procedures of affixing bail, pretrial arrest and

detention. Therefore, the Bench Trial Transcript wouldn’t,

and doesn’t, establish any factuality that would bar

Petitioner’s claims by deeming his bail amounts as

reasonable or approving the legality of the seizures based

on the commission of a crime in the presence of the

arrestors. Palpably, the foregoing claims are not related to

Petitioner’s summary harassment convictions and would

not cause an impugnment or invalidate a criminal

judgment. As reinforced in Wallace, “a claim for damages

bearing that relationship to a conviction or sentence that

has not been so invalidated is not cognizable under § 1983”.

See Wallace at *385; citing Heck. Foremostly, these claims

also do not impose a favorable termination element, such

as a malicious prosecution claim.!!

l Tt is incomprehensible that the Eastern District held that an

excessive bail claim could invalidate an outstanding conviction and is

barred by Heck. What began as a doctrine to curb § 1983 claims that

would infringe upon an “outstanding conviction or sentence,” has been

so far stretched and expanded to defeat constitutional claims that have

no pertinency to favorable termination or which directly contravene

the factual findings of a judge or jury. Blatantly, this Court did not

envision or intend for such an insensible concept. See Spencer v.

Kemna, 523 U.S. 1, 21 (1998) (The primacy of the Heck-bar is to

procedurally require the invocation of a petition for habeus corpus,

prior to constitutionally challenging the conviction under §1983

malicious prosecution, and rationalizing that habeas recourse is only

available to prisoners in custody).

19

C. The Third Circuit’s version of the Heck-bar

conflicts with the Second, Seventh and Eleventh

Circuit's version when determining favorable

termination under the context of a mixed verdict

(2d question presented)

Turning to the second (2"4) component of the second

(24) question presented, inter alia, when determining

whether the favorable termination element of a malicious

prosecution claim has been satisfied, the Third Circuit’s

stricture is that each and every charge, within a series,

must be conquered. Kossler v. Crisanti, 564 F.3d 181, at

*193 (34 Cir. 2009); Noviho v. Lancaster County, 683 F.

App’x 160 (3'¢ Cir. 2017). Contextually, there is no such

thing as a favorable termination when the verdict is mixed

within a series of charges. The fundamental unfairness

with this hard and fast rule is that Jay the jaywalker can

legally languish for months as a pretrial detainee in the

county jail, a deprivation of liberty that was not envisioned

by the framers of our Constitution.

Contrary to the above boilerplate formula, the

appellate courts sitting in the Second, Seventh and

Eleventh Circuits, take a crime-specific approach under the

ambivalent context of a mixed verdict, See Holmes v.

Village of Hoffman, 511 F.3d 673 (7*» Cir. 2007); Uboh v.

Reno, 141 F.3d 1000, 1005 (11 Cir. 1998); Posr v. Doherty,

944 F.2d 91, 100 (2"¢ Cir. 1991); and Janetka v. Dabe, 892

F.2d 187 (2.4 Cir. 1989). The Second Circuit has scribed

bright-lines between individual charges when determining

favorable termination in a mixed verdict setting,

underscoring the concern that if they are not approached in

20

a solitary manner, “an officer with probable cause as to a

lesser offense could tack on more serious, unfounded

charges which would support a high bail or lengthy

detention, knowing that the probable cause on the lesser

offense would insulate him from liability for malicious

prosecution on the other offenses.” See Posr, supra, and

Janetka, supra.

At bar, is the same miscarriage of justice that the

other Circuits would have negated by employing their

crime-specific approach. Here, out of the large

conglomeration of charges brought against Petitioner, he

was found guilty of two (2) summary offenses, which are

petty and de minimis in severity. Saliently, ina

Pennsylvania summary case, defendants are not jailable

prior to trial and there is no criminal procedure for pretrial

detention. Starkly contrasting the (2) outstanding

summary harassment convictions entered against

Petitioner, is the cold sobering fact that he was

warrantlessly arrested for stalking on February 26th, 2017,

then domiciled in the Montgomery County Correctional

Facility with a twenty-thousand-dollar ($20,000.00) cash

bail. Once again, on March 24, 2017, Petitioner was

warrantlessly arrested for stalking and confined as a

pretrial detainee with a ninety-nine-thousand-dollar

($99,000.00) cash bail, after one-million dollars

($1,000,000.00) cash was requested, while posing no flightrisk. These episodes stand out like a beacon and do not

represent constitutionally sound criminal procedure. The

active ingredients to Petitioner’s eleven (11) days of

pretrial detention were the (2) stalking charges brought

against him, which were baseless and terminated

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