Petition for Writ of Certiorari — John Vaughn, Petitioner v. Nebraska

IN THE SUPREME COURT OF THE UNITED STATES

JOHN VAUGHN, Petitioner,

vs.

STATE OF NEBRASKA, Respondent.

On Petition for Writ of Certiorari from

the Nebraska Supreme Court

PETITION FOR WRIT OF CERTIORARI

Bekah Keller, Assistant Public Defender

Counsel of Record

Thomas C. Riley

Public Defender for Douglas County, Nebraska

1717 Harney Street

Room 500

Omaha, Nebraska 68183

(402) 444-7175

QUESTIONS PRESENTED

1) Does the automobile exception to the warrant requirement of the Fourth

Amendment apply to commercial trains?

2) Is there a plain smell exception to the warrant requirement of the Fourth

Amendment?

3) Does a defendant’s right to confrontation under the Sixth Amendment extend

to statements that are not hearsay or fall within a hearsay exception, no

matter whether they are testimonial or nontestimonial?

PARTIES TO THE PROCEEDING

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

DIRECTLY RELATED PROCEEDINGS

Proceedings at issue in this matter began with the filing of the Information in

the District Court of Douglas County Nebraska, State of Nebraska v. John Vaughn,

CR21-1009. Judgment was rendered on April 13, 2022. An appeal was filed on April

26, 2022. The Nebraska Supreme Court filed the opinion on May 5, 2023, under the

case number S-22-308. The opinion can be found at State v. Vaughn, 314 Neb. 167,

989 N.W.2d 378 (2023) (No. S-22-308).

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TABLE OF CONTENTS

QUESTIONS PRESENTED 00.0... eeecceeeeceeseeeenneeeeneeeeesneeeeseneeesiieeeseresensneeenns il

PARTIES TO THE PROCEEDING .........ccccccccccccccccceeeeeeeeeeeeeeseseeeeeeseeeeeeeeeeeeeers il

DIRECTLY RELATED PROCEEDINGS ............ccccccseeeeeeeeeeeeeeeeeseeeeceeseeeeaneneneees ll

TABLE OF AUTHORITTEG w. cusses eves coer cescccennes cnsse ven sone snes enna stint onl €aiia dain Cans Cane ene es iv

OPINION BETO W cccecsacs cxan cexsvees cee ony com eeenumenecnmuneneen wenn anes esind Hab 0504 Sv JSSaI0ks Seo HUES OAR 1

STATEMENT OF JURISDICTION 0 cecccceccnccnnncerennes anid sana sted sibs Sele ineeeene evmeRuNe On 1

CONSTITUTIONAL PROVISIONS INVOLVED wsss..03 c200 seve snssveersanyeaeeroosressrerress 1

STATEMENT OFF THE CASE ........ nccccvenns ccdscstitnnas ca keane snes nenpmane sees nnaerves Hone enrewen 1

TIN TROD C TION... ccovecvevesscene cess unwevensneencanennas ishksiibasity seks (io Hees Vee Ska ORIEN reRe PREP EINE SE 5

REASONS FOR GRANTING THE WRIT

I. Certiorari is Warranted on Whether Personal Property on

Commercial Trials are Protected by the Fourth Amendment 6

II. Certiorari is Warrant on Whether “Plain smell” is a recognized

exception to the fourth amendment warrant requirement... 17

III. Certiorari is Warranted on Whether the Confrontation Clause

requires that the Accused have the opportunity to cross examine a

witness against them, even if the statements are not hearsay....._... 19

CONCLUSION eee ee ceceeasetetesatenatevivivenenveveenetees 26

APPENDIX A: Opinion of the Nebraska Supreme Court, State v. Vaughn,

314 Neb. 167 (2023), filed May 5, 2023 i cececeeeseneeeesevesteeneeeee la

APPENDIX B: Brief of Appellant, Appeal to Nebraska Court of Appeals...31a

APPENDIX C: Brief of Appellee, Appeal to Nebraska Court of Appeals... 67a

APPENDIX D: Reply Brief of Appellant, Appeal to Nebraska Court of

Appeals cece cecec cece ceseeceveuceveeeaeesensssnteeasnsatsesesivevstseveveeeseseeeesesneseneeess 1l2a

APPENDIX E: Motion to Suppress Proceedings. cc cceecceeeceeeeseeeveeees 127a

APPENDIX F: Relevant Trial Transcript... cceccececeeeseeeeveveceseseeeeeee 175a

APPENDIX G: Relevant Orders from Trial Court oi eeeceeeeeeeeeeeeeeeeeee 210a

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TABLE OF AUTHORITIES

CASES

Alvarez v. Com., 485 S.E.2d 646 (Va. App. 1997) eens 7,8

Arkansas v. Sanders, 442 U.S. 753 (1979) ec eeeeeee 13, 15

Barrett v. Acevedo, 169 F.3d 1155 (8th Cir. 1999) eens 23

Bruton v. United States, 391 U.S. 123 (1968) eee 20

Bullcoming v. New Mexico, 564 U.S. 647 (2011) cee cecececeeeveceeeeeeeeeeee 22

Caffee v. State, 814 S.E.2d 386 (Ga. 2018). cc cecececececeeeeeceeeeseeeseseneneeees 18

California v. Acevedo, 500 U.S. 565 (1991). 5, 8, 10, 13, 14

California v. Carney, 471 U.S. 886 (1985). cee ceeeceeeeeneeneeenteaeeees 8

California v. Green, 399 U.S. 149 (1970) ec ceceeceeneneeeeees 20, 25

Carroll v. United States, 267 U.S. 182 (1925) ee eceeeeeceeeeeeeeseeeeneeeens 7

Chambers v. Maroney, 399 U.S. 42 (1970). cece eenecnsaeeneeneeaeene 8

Coolidge v. New Hampshire, 403 U.S. 448 (1971)

Crawford v. Washington, 541 U.S. 36 (2004)

Davis v. Washington, 547 U.S. 813 (2006) eee 21, 22, 23

Ex Parte Jackson 96 U.S. 727 (1877). ccceneceeeeneeeeeeeeestseveeeesneeeeeeeees 14

G. M. Leasing Corp. v. United States, 429 U.S. 338 (1977) occ eeeeeeeeeeee 14

Gozlon-Peretz v. United States, 498 U.S. 395 (1991) i eeeeeeeeeeeeeeee 6

Green v. State, 978 S.W.2d 300 (Ark. 1998) ce eeceeeeceeeeceeeeeeeeeeeeeeees 7,8

Horton v. California, 496 U.S. 128 (1990) cc eeceececeeeeeeeeeeeeeeeeeeeeeeeeeeeees 7

Illinois v. Gates, 462 U.S. 213 (1988) ec eeeeeeeeneeveecececeeeectesneseeeenenes 7

Illinois v. McArthur, 581 U.S. 326 (2001) cece ceceeeeceeeeeeveseneseeeeeeeees 11

Kentucky v. King, 563 U.S. 452 (2011) eee eeeeeeseeeeseneeseveeeeeeeeees 10

Lee v. Illinois, 476 U.S. 580 (1986) eee cceeceeeceseeeveteceeeevevseeeseeeneseeeee 20

Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) oc eeceeceeeseeeceeeeeee 24

Missouri v. McNeely, 569 U.S. 141 (2018). eee eeeeeeeeeee 5, 10, 16

lV

Payton v. New York, 445 U.S. 573 (1980) eee eeeeeeeees 14

Riley v. California, 573 U.S. 373 (2014)

Robey v. Superior Ct., 302 P.3d 574 (Ca. 2013) eee 18

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) cece eeneeneee 10

State v. Jackson, 831 N.W.2d 103 (Wis. App. 2013) 18

State v. Lovely, 365 P.38d 431 (Idaho App. 2016). 7,8

State v. McCarthy, 501 P.3d 478 (2021) eee 16

Symes v. U.S., 633 A.2d 51 (D.C. 1998). cece eee ee ceeeteseeewe 7

Thornton v. U.S., 541 U.S. 615 (2004). cece eeaeeeeeeteneseeneteatees 7

United States v. Cartwright, 183 F. Supp. 3d 1348 (M.D. Ga. 2016) 17

United States v. Chadwick, 433 U.S.1 (1977). 10, 11, 18, 15

U.S. v. Coyler, 878 F.2d 469 (D.C. Cir. 1989) eects 6

United States v. Inadi, 475 U.S. 387 (1986). 23

United States v. Jacobsen, 466 U.S. 109 (1984). 15

United States v. Johnson, 497 F.2d 397 (9th Cir. 1974) 18

United States v. Kizzee, 877 F.3d 650 (5 Cir. 2017) ceeeeeeeeeeeeeeeee 24

United States v. Maher, 454 F.3d 13 (1st Cir. 2006) cc eeeeeeeeeeeeeeees 24

United States v. Marrocco, 578 F.3d 627 (7th Cir. 2009) ee eeeeceeeeeeeee 6

United States v. Meises, 645 F.3d 5 (Ist Cir. 2011) 24

United States v. Pina, 648 Fed. Appx. 899 (11th Cir. 2016) 7,8

United States v. Place, 462 U.S. 696 (1983). 9,11, 13

United States v. Ramos, 443 F.3d 304 (8d Cir. 2006) cc eeeeceeeeeeeeeeeee 17

United States v. Robinson, 414 U.S. 218 (1973). eee 10

United States v. Ross, 456 U.S. 798 (1982) eee 8, 15

United States v. Six Hundred Thirty-Nine Thousand Five Hundred & Fifty-

Eight Dollars ($639,558) In U.S. Currency, 955 F.2d 712 (D.C. Cir. 1992)__.16

United States v. Tartaglia, 864 F.2d 837 (D.C. Cir. 1989) 12, 16

United States v. Van Leeuwen, 397 U.S. 249 (1970) 15

v

United States v. Whitehead, 849 F.2d 849 (4th Cir. 1988) eee 6

Walter v. U.S., 447 U.S. 649 (1980). cece seeeneceveveveceeeceseeeeeeeseee 15

Williams v. Illinois, 567 U.S. 50 (2012) ce eeceeeceeveveeeeeeeeeees 23, 24

Wyoming v. Houghton, 526 U.S. 295 (1999) occ eecececceeeceeceeceeeeeneeeeeeeseeeeeeeee 7

CONSTITUTION AND STATUTES

U.S. Const., Amend. [Vee eee eee cescneeeeseeneeeeeavavetsevevecsnsesecsesesesseesesees 1

U.S. Const., Amend. Vice ceeeeceeesestnneneneeetetveveveveeetseeeseeees 1

U.S. Const., Amend. VI ecco neececeneesueeeneceteteeseveseeeseeeeeees 1, 19

28 U.S.C. § 1254 cc ccccceneeesaesateneeneevacseesevensaetacsnsneeieeaeeseeasens 1

vi

OPINION BELOW

The opinion of the Nebraska Supreme Court is reported at 214 Neb. 167, 989

N.W.2d 378 (2023) (No. S-22-308) and is attached at App. A, p. la-30a.

STATEMENT OF JURISDICTION

The Nebraska Supreme Court delivered its opinion on May 5, 2023. This

Court’s jurisdiction is invoked under 28 U.S.C. §1254.

CONSTITUTIONAL PROVISIONS INVOLVED

I. The Fourth Amendment to the United States Constitution, which secures

“t]he right of people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated .. .” U.S. Const. Amend. IV.

II. The Fifth Amendment to the United States Constitution, which guarantees all

criminal defendant’s “due process of law.” U.S. Const. Amend. V.

Ill. The Confrontation Clause of the Sixth Amendment which guarantees, “In all

prosecutions, the accused shall enjoy the right to be confronted with the witnesses

against him.” U.S. Const. Amend. VI.

STATEMENT OF THE CASE

On March 24, 2021, the State of Nebraska filed an information alleging that

John Vaughn committed three felony charges. (T1). The State alleged that on

February 4, 2021, in Douglas County, Nebraska, Vaughn did 1) deliver, distribute,

dispense, manufacture, or possess with the intent to distribute, deliver, dispense, or

manufacture marijuana; 2) possess marijuana, more than one pound; and 3) fail to

affix a tax stamp. (Pet. App. 210a-211a).

A motion to suppress hearing was held, challenging whether evidence had

been obtained in violation of Vaughn’s Fourth Amendment right against

warrantless search and seizure. The government called Officer Brian Miller, a

Pottawattamie County deputy who is assigned to the DEA Task Force Criminal

Interdiction Unit. (Pet. App. 128a). Miller testified that he is trained to monitor

inconsistencies on the train railways that travel through Omaha. (Pet. App. 134a).

Miller testified that on February 4, 2021, at the Amtrak train station in Omaha,

Nebraska, Miller boarded the train and proceeded to smell the seam or zipper

portion of the duffle bag. (Pet. App. 136a). Miller testified that while smelling the

seam of the bag located on a luggage rack, he detected the odor of marijuana coming

from it. (Pet. App. 136a). Miller testified that he was a couple of inches away from

the seam of the bag when he smelled marijuana. (Pet. App. 145a).

Miller proceeded to conduct a “probable cause” search of the duffle bag and

located marijuana in vacuum sealed packages. (Pet. App. 137a). Miller testified that

he asked an Amtrak employee who owned the duffle bag and the employee

responded that the bag belonged to a male party in room 12. (Pet. App. 138a).

Vaughn was ultimately arrested and removed from the train. (Pet. App. 138a).

Miller testified that he then conducted a search of the cabin and found a suitcase, a

search of which revealed additional raw leaf marijuana. (Pet. App. 141a).

After hearing the evidence and arguments from both parties, the district

court overruled Vaughn’s motion to suppress and stated, “an officer can smell any

bag he wants to smell. If he smells the odor of marijuana coming from the zipper as

he said, then I believe that there’s — I’m finding that there’s probable cause to

search the bag.” (Pet. App. 214a; 1738a).

Before trial, defense counsel argued its motion in limine regarding the

Amtrak employees out of court statements to law enforcement. (Pet. App. 175a).

Vaughn argued that the evidence of the Amtrak employee’s identification of Vaughn

as the owner of the duffle bag should be inadmissible at trial because the

statements were hearsay not within an enumerated exception and violated

Vaughn’s right to confrontation. (Pet. App. 175a-176a).

At trial, Miller testified that on February 4, 2021, he boarded the Amtrak

train and, without touching the bag, Miller smelled the seam of the duffle bag and

stated he smelled an odor of marijuana. (Pet. App. 187a). Vaughn renewed his

motion to suppress, and asked for a continuing objection. (Pet. App. 187a). The court

overruled counsel’s objection but permitted the continuing objection. (Pet. App.

187a). Miller testified that after he smelled the odor of marijuana, he conducted a

probable cause search of the bag. (Pet. App. 187a). During this search, Miller

testified that he saw an opaque black vacuum-sealed bag and a clear vacuum-sealed

bag of a green leafy substance he believed to be marijuana. (Pet. App. 187a). Miller

testified that he then asked the Amtrak attendant if she knew who the bag

belonged to. (Pet. App. 190a). Vaughn objected and renewed his hearsay and

1S)

confrontation objections. (Pet. App. 190a). The court overruled counsel’s objection to

the Amtrak employee’s statement. (Pet. App. 190a). The court reasoned that it was

allowing the testimony as to what the attendant said because it was not to prove the

truth of the matter asserted, it was just to give information as to why Miller took

his next step. (Pet. App. 191a). In allowing the testimony, the district court gave a

limiting instruction to the jury. (Pet. App. 191a). Miller went on to testify that he

was told by the employee that the duffle bag belonged to a male that was in room

12. (Pet. App. 190a). Based on what the Amtrak employee said, Miller had a

conversation with Vaughn, and ultimately arrested Vaughn. (Pet. App. 200a). After

Vaughn’s arrest and removal from the train, Miller searched room 12 and located a

hard-sided suitcase. (Pet. App. 209a).

The court declared that the statement to Miller by the Amtrak employee is

not hearsay. (Pet. App. 207a).

The jury found Vaughn guilty of all three charges. The court accepted the

guilty verdicts and sentenced Vaughn to a period of four to six years of incarceration

on count I: delivery, distribution, dispensing, manufacturing, or possession with

intent to distribute, deliver, dispense, or manufacture marijuana and a fine of

$10,000 on count III: failure to affix a tax stamp. (Pet. App. 221a-222a).

Vaughn filed his notice of appeal on April 26, 2022. The Honorable Peter C.

Bataillon signed an order allowing Vaughn to proceed in forma pauperis on April

14, 2022. After briefing and argument, the Nebraska Supreme Court delivered its

opinion on May 5, 2023, affirming Vaughn’s convictions and sentence. State v.

Vaughn, 314 Neb. 167 (2023). (Pet. App. 1a-30a).

INTRODUCTION

This case presents an opportunity for this Court to find that the automobile

exception to the Fourth Amendment warrant requirement as it exists under

California v. Acevedo, 500 U.S. 565 (1991), extends the search of closed containers

found on commercial passenger trains. Instead, closed containers on passenger

trains may be subject to the general exigent circumstances exception to the warrant

requirement, which requires a case specific inquiry as required by Missouri v.

McNeely, 569 U.S. 141 (2013). The general exigent circumstance exception to the

warrant requirement does not permit the warrantless search of closed containers on

passengers. This Court should find that current case law permits the least intrusive

means and probable cause of criminal activity inside a closed container on a train

can be seized, in order to prevent the destruction of evidence, while a warrant is

requested.

This case also presents an opportunity to correct and clarify a misstatement

of law by the Nebraska Supreme Court related to the Confrontation Clause of the

Sixth Amendment, as to whether statements by nontestifying witnesses that are

determined to be not hearsay or that fall within a hearsay exception, are exempt

from an accused’s confrontation right, even if the statements could be considered

testimonial.

REASONS FOR GRANTING THE WRIT

I. CERTIORARI IS WARRANTED ON WHETHER PERSONAL PROPERTY ON

PASSENGER TRAINS IS PROTECTED BY THE FOURTH AMENDMENT.

This case presents an opportunity for the Court to clarify a fundamental

inconsistency that has emerged in Fourth Amendment jurisprudence. Does the

automobile exception to the Fourth Amendment warrant requirement applies to

commercial trains?

The present case hinges on conflicting determinations of the limitations of

the exceptions to the Fourth Amendment warrant requirement. The Nebraska

Supreme Court would seek to expand and broaden the automobile exception to the

warrant requirement allowing the most intrusive invasion into private citizens’

property. The Nebraska Supreme Court failed to apply the existing general exigent

circumstances exception to the warrant requirement and failed to insist on the least

intrusive option for law enforcement to respect citizens’ privacy while still being

able to effectuate the important governmental interest of detection and seizure of

contraband on interstate travel.

Other jurisdictions have addressed questions of searches and seizures on

trains without applying the automobile exception to the warrant requirement at all.

United States v. Whitehead, 849 F.2d 849 (4th Cir. 1988), abrogated on other

grounds by Gozlon-Peretz v. United States, 498 U.S. 395 (1991); U.S. v. Coyler, 878

F.2d 469 (D.C. Cir. 1989); United States v. Marrocco, 578 F.3d 627 (7th Cir. 2009).

One case has expanded the automobile exception to trains. Symes v. U.S., 6383 A.2d

51 (D.C. 1993).

Although not directly on point, some jurisdictions have included commercial

buses under the umbrella of the automobile exception to the warrant requirement.

See United States v. Pina, 648 Fed. Appx. 899 (11th Cir. 2016); Green v. State, 978

S.W.2d 300 (1998); State v. Lovely, 365 P.3d 431 (Idaho App. 2016); Alvarez v. Com.,

485 S.E.2d 646 (1997).

A. THE AUTOMOBILE EXCEPTION TO THE FOURTH AMENDMENT WARRANT

REQUIREMENT DOES NOT EXTEND TO PASSENGER TRAINS.

The automobile exception is a well-established doctrine allowing for the

warrantless search of a lawfully stopped automobile when there is probable cause to

believe the automobile contains evidence of a crime. Carroll v. United States, 267

U.S. 132 (1925); see also Illinois v. Gates, 462 U.S. 213, 238 (1983). The two main

justifications for the automobile exception to the warrant requirement are exigency

and a lessened expectation in privacy. Riley v. California, 573 U.S. 373, 398-400

(2014) (citing Thornton v. U.S., 541 U.S. 615, 631 (2004)); see also Wyoming v.

Houghton, 526 U.S. 295, 303-304 (1999). This Court has explained the necessity for

the automobile exception, “because the car is ‘movable, the occupants are alerted,

and the car's contents may never be found again if a warrant must be obtained.’

‘(T)he opportunity to search is fleeting . . .” Coolidge v. New Hampshire, 403 US.

443, 460 (1971), holding modified by Horton v. California, 496 U.S. 128 (1990)

(quoting Chambers v. Maroney, 399 U.S. 42, 51 (1970)). The scope of a warrantless

search under the automobile exception “is defined by the object of the search and

the places in which there is probable cause to believe that it may be found.” United

States v. Ross, 456 U.S. 798, 824 (1982).

However, the Court has never defined the limits of what is an “automobile”

for purposes of this exception. The most common use of the automobile exception is

after a traffic stop of an individual vehicle on a public roadway. See California v.

Acevedo, 500 U.S. 565, 575 (1991). However, using the same justifications for

vehicles, this Court has concluded that a motor home parked in a public place also

fell within the automobile exception due to its mobility and that motor homes are

subject to a range of governmental regulations inapplicable to fixed dwellings.

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

Additionally, there is some case law to indicate commercial buses also fall

within the automobile exception for similar reasons. Buses have been included in

the automobile exception to the warrant requirement because they are “readily

mobile” and people have a lessened expectation in privacy on a bus. See United

States v. Pina, 648 Fed. Appx. 899 (11th Cir. 2016); Green v. State, 978 S.W.2d 300

(Ark. 1998); State v. Lovely, 365 P.3d 431 (Idaho App. 2016); Alvarez v. Com., 485

S.E.2d 646 (1997).

Passenger trains present a unique circumstance to address both the exigency

exception to the warrant requirement and reasonable expectations of privacy in

trains. Trains both have aspects like cars and buses where closed containers are

transported on these transportation devices, and have aspects like dwellings or

hotels where people rent private or semi-private rooms on the train car.

Although trains are “readily mobile” as the automobile exception is primarily

concerned about, a trains mobility is much more limited than a car or bus. Trains

operate on a fixed schedule, can only travel on train tracks, and passengers have no

control over their transportation. Because trains travel on tracks, law enforcement

can easily ascertain where a train is heading when it begins moving. The exigency

in trains is less because of these limitations and because of this, trains should not

be considered automobiles as it relates to the automobile exception to the warrant

requirement.

Second, the privacy interests of individuals on trains exists on two levels. As

it relates to this case, the privacy interests in closed containers on a train are

subject to the same privacy interests as closed containers anywhere in public.

Similar to passengers in an airport, United States v. Place, 462 U.S. 696 (1988),

passengers on trains retain a reasonable expectation of privacy in their luggage.

Traveling on a train is less intrusive than boarding an airplane at an airport. This

privacy expectation means that law enforcement cannot search personal property

without a warrant or exigent circumstances.

This is not to say that other exceptions to the warrant requirement do not

apply to searches and seizures of closed containers on trains, but the expansion of

the automobile exception to trains is inappropriate and contrary to justification

used by this Court in creating the automobile exception to the warrant requirement.

B. THE GENERAL EXIGENT CIRCUMSTANCES EXCEPTION TO THE FOURTH

AMENDMENT WARRANT REQUIREMENT APPLIES, BUT PERMITS THE SEIZURE

OF THE CONTAINER PENDING ISSUANCE OF A WARRANT.

This Court held in Coolidge v. New Hampshire that no amount of probable

cause can justify a warrantless search or seizure absent “exigent circumstances.”

403 U.S. 443, 468 (1971). In addition to the categorical exceptions to the warrant

requirement,! this Court has recognized a general exigent circumstance exception

as an exception to the Fourth Amendment warrant requirement. Missouri v.

McNeely, 569 U.S. 141, 150 (2018). This exception is different than other warrant

exceptions, as “the general exigency exception ... asks whether an emergency

existed that justified a warrantless search, naturally calls for a case-specific

inquiry.” Id. at fn 3. Such exigencies could include “the need to prevent the

imminent destruction of evidence in individual cases, to pursue a fleeing suspect,

and to assist persons who are seriously injured or are threatened with imminent

injury.” Riley v. California, 573 U.S. 873, 402 (2014) (citing Kentucky v. King, 563

U.S., 452, 460, (2011)).?

1 See, e.g., California v. Acevedo, 500 U.S. 565, 569-570 (1991) (automobile exception); United States

v. Robinson, 414 U.S. 218, 224-235 (1973) (searches of a person incident to a lawful arrest); Coolidge

v. New Hampshire, 403 U.S. 443, 468 (1971) (plain view); Schneckloth v. Bustamonte, 412 U.S. 218

(1973) (consent).

2 “In Chadwick, for example, the Court held that the exception for searches incident to arrest did not

justify a search of the trunk at issue, but noted that ‘if officers have reason to believe that luggage

contains some immediately dangerous instrumentality, such as explosives, it would be foolhardy to

10

The Fourth Amendment “protects people from unreasonable government

intrusions into their legitimate expectations of privacy.” United States v. Chadwick,

433 U.S. 1, 7 (1977). “Consequently, rather than employing a per se rule of

unreasonableness, the Court must balance the privacy-related and law

enforcement-related concerns to determine if the intrusion here was reasonable.”

Illinois v. McArthur, 531 U.S. 326, 327 (2001).

As is relevant in the present case, this Court has held “that a person

possesses a privacy interest in the contents of personal luggage that is protected by

the Fourth Amendment.” Chadwick, 433 U.S. at 13. As such, a “canine sniff by a

well-trained narcotics detection dog... only [reveals] the presence or absence of

narcotics, a contraband item. . .” and thus does not require probable cause. United

States v. Place, 462 U.S. 696, 706-707 (1988).

In the present case, the trial court failed to conduct a balancing test to weigh

the privacy interests against the law enforcement-related concerns to determine

whether the search of the duffle bag was reasonable under the circumstances.

Instead, the trial court found simply that the officer had probable cause and could

search what he wanted. See Appendix G 214a, 217a-219a. The balancing test would

require this Court to weigh Vaughn’s privacy interest in closed personal property, a

duffle bag on the train, with the governmental interest in finding and seizing

contraband on the trains.

transport it to the station house without opening the luggage.” Riley, 572 U.S. at 401 (quoting U.S.

v. Chadwick, 433 U.S., 1, 15, n. 9 (1977).

rth

Distinguishable from the present case is United States v. Tartaglia, where

law enforcement searched a “roomette” on a train without first obtaining a warrant

based on probable cause collected from police observations and a qualified narcotics

detection dog. The trial court denied the motion to suppress. 864 F.2d 837, 838 (D.C.

Cir. 1989). The lower court held that an extension of the “automobile exception” to

the warrant requirement of the Fourth Amendment justified the warrantless

search; and the imminent departure of the train pending issuance of a warrant and

the difficulty of delaying the train were exigent circumstances which justified the

warrantless search and seizure. The lower court not only found that there was

probable cause to justify a search, but also specifically found that it was “practically

impossible to get a warrant for a person on board a train which is only going to stop

for 25 minutes.” Id. at 838-39. The United States Court of Appeals for the District

of Columbia Circuit rejected this logic. Id. Instead, it reasoned that because the

police did not have sufficient time to procure a warrant before the train left Union

Station and because there was more than a reasonable likelihood that the train—

and therefore, the roomette and its contents—would be moved before a warrant

could be obtained, the warrantless search of defendant’s roomette was justified

under the exigent circumstances exception to the warrant requirement of the

Fourth Amendment. Id. at 841-42.

Tartaglia is distinguishable because the balancing test the court weighed the

privacy interest in the roomette with the exigent circumstances that are the

possibility of evidence being destroyed while the train was in route to its next stop.

12

It was not possible to seize and remove the roomette from the train in order to seek

a search warrant. The present case concerns a duffle bag on a commercial train. The

exigency in a moveable closed container is lessened when the property may be easily

removed from the train and seized while a warrant is obtained.

This Court has previously established that law enforcement can, without a

warrant, temporarily seize personal property in public if there is probable cause of

criminal behavior. In U.S. v. Place, this Court held that law enforcement did not

have probable cause, but this Court opined that even with probable cause, seizure

and seeking a warrant was the appropriate method for a closed container in public

place that is not an automobile, stating:

[W]here law enforcement authorities have probable cause to believe

that a container holds contraband or evidence of a crime, but have not

secured a warrant, the Court has interpreted the Amendment to

permit the seizure of property, pending issuance of a warrant to

examine its contents, if the exigencies of the circumstances demand it

or some other recognized exception to the warrant requirement is

present.”

U.S. v. Place, 462 U.S. 696, 701 (1983). See also Chadwick, 433 U.S. at 13; Arkansas

v. Sanders, 442 U.S. 753, 770 (1979) (dissenting opinion). And the police often will

be able to search containers without a warrant, despite the Chadwick-Sanders rule,

as a search incident to a lawful arrest. California v. Acevedo, 500 U.S. 565, 575

(1991).

Place clearly applies the exigent circumstances balancing test but the Court

went farther to ensure the least intrusive invasion into privacy rights by insisting

on a procedure where law enforcement seizes the closed container temporarily,

while requesting a warrant. This Court has taken the time concerns about the

depth of the intrusion into a person’s privacy interests in other cases as well.

For example, in California v. Acevedo, this Court has opined, “We cannot see

the benefit of a rule that requires law enforcement officers to conduct a more

intrusive search in order to justify a less intrusive one.” California v. Acevedo, 500

U.S. 565, 575 (1991). Where police can seize from a public place and not violate

privacy interests that is preferred as opposed to entering and/or searching private

property and invading the privacy of the individuals. This logic was adopted by this

Court years ago with the adoption of the plain view exception to the warrant

requirement. Payton v. New York, 445 U.S. 573, 586-87 (1980) (“The seizure of

property in plain view involves no invasion of privacy and is presumptively

reasonable, assuming that there is probable cause to associate the property with

criminal activity.”); G. M. Leasing Corp. v. United States, 429 U.S. 338, 354 (1977)

(“It is one thing to seize without a warrant property resting in an open area or

seizable by levy without an intrusion into privacy, and it is quite another thing to

effect a warrantless seizure of property, even that owned by a corporation, situated

on private premises to which access is not otherwise available for the seizing

officer.”). The same least intrusive means logic is relevant in any circumstance upon

which any of the recognized exceptions to the warrant requirement are relied.

In Ex Parte Jackson, this Court held that the FBI was lawfully in possession

of boxes of film that they had probable cause contained illicit materials, based on

information from another individual, but the FBI’s possession did not give them

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authority to search their contents without a warrant. 96 U.S. 727 (1877). In Walter

v. United States, this Court held that there was nothing wrongful about the

Government’s acquisition of the packages or its examination of their contents to the

extent that they had already been examined by third parties. 447 U.S. 649, 656

(1980). However, the argument that probable cause to believe the contents

contained obscene materials justified to an unlimited search of the contents of the

containers must fail, “whether we view the official search as an expansion of the

private search or as an independent search supported by its own probable cause.”

Id. at 656. See also United States v. Jacobsen, 466 U.S. 109, 114 (1984) (“Letters

and other sealed packages are in the general class of effects in which the public at

large has a legitimate expectation of privacy; warrantless searches of such effects

are presumptively unreasonable.”). Even when government agents may lawfully

seize such a package to prevent loss or destruction of suspected contraband, the

Fourth Amendment requires that they obtain a warrant before examining the

contents of such a package. United States v. Jacobsen, 466 U.S. 109, 114 (1984). See

also United States v. Ross, 456 U.S. 798, 809-812 (1982); Robbins v. California, 453

U.S. 420, 426 (1981) (plurality opinion); Arkansas v. Sanders, 442 U.S. 753, 762

(1979); United States v. Chadwick, 433 U.S. 1, 13 and n. 8 (1977); United States v.

Van Leeuwen, 397 U.S. 249 (1970).

Indeed, law enforcement is aware of and able to acknowledge the additional

step of seizing property and requesting a warrant without minimizing the

important governmental function they seek to execute. Although presented with a

15

different issue, the D.C. Circuit court acknowledged circumstances where a drug

dog on an Amtrak train conducted a “sweep” and alerted to two bags. When the

owner refused to consent to a search of the bags, law enforcement said he would

have to take the bags’ owner off the train and apply for a search warrant. United

States v. Six Hundred Thirty-Nine Thousand Five Hundred & Fifty-Kight Dollars

($639,558) In U.S. Currency, 955 F.2d 712 (D.C. Cir. 1992).

An increasingly persuasive justification for emphasizing the least intrusive

means is the development of technological advancements that permit law

enforcement to seek and receive a warrant electronically, and quickly. The logic

used in Tartaglia that a warrant could not be obtained in the 25 minutes that the

train was stopped no longer applies is outdated. Tartaglia, 864 F.2d at 842. See

Riley v. California, 573 U.S. 378, 401 (2014); (“Recent technological advances...

have ... made the process of obtaining a warrant itself more efficient”); U.S. v.

McNeely, 569 U.S. 141, 172 (ROBERTS, C.J., concurring in part and dissenting in

part) (describing jurisdiction where “police officers can e-mail warrant requests to

judges’ iPads [and] judges have signed such warrants and e-mailed them back to

officers in less than 15 minutes”); State v. McCarthy, 501 P.3d 478 (2021)

(overruling the “Oregon automobile exception” as it was “not well founded or clearly

reasoned; it was not intended to be permanent; it has not provided stability or

clarity; it is inconsistent with other, more recent cases; given technological changes,

it is no longer justified; and maintaining it might well diminish the incentives for

16

jurisdictions to improve warrant processes and for officers to seek warrants when

practicable”).

Individuals have a privacy interest in personal property on passenger trains,

such that, absent exigent circumstances, a warrant is required to search that

property. When exigent circumstances establish that potential contraband could be

lost or destroyed if not immediately seized, probable cause permits law enforcement

to seize the property in order to prevent its destruction, while seeking a warrant to

search the contents of the property.

II. “PLAIN SMELL” IS NOT A RECOGNIZED EXCEPTION TO THE FOURTH

AMENDMENT WARRANT REQUIREMENT

A well-established exception to the warrant requirement of the Fourth

Amendment is the plain view exception. Coolidge v. New Hampshire, 403 U.S. 443

(1971). This case presents this Court with an opportunity to determine whether the

plain view doctrine extends to “plain smells.”

Some courts in other jurisdictions have determined an odor of marijuana

detected by law enforcement was sufficient probable cause to permit the

warrantless detention of individuals and search of closed containers. See United

States v. Ramos, 443 F.3d 304 (3d Cir. 2006); United States v. Cartwright, 183 F.

Supp. 3d 1348, 1355-57 (M.D. Ga. 2016) (officers’ testimony of smelling the

“pungent” odor of marijuana on a person established an objective, reasonable

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suspicion to justify a Terry stop); United States v. Johnson, 497 F.2d 397 (9th Cir.

1974); State v. Jackson, 831 N.W.2d 103 (Wis. App. 2013).

This Court has not established a “plain smell” exception to the warrant

requirement. See Robey v. Superior Ct., 302 P.3d 574, 590 (2018) (The United States

Supreme Court has never “upheld a warrantless search of a closed container solely

on the ground that its smell, appearance, or other outward characteristic clearly

announced its contents.”). In Caffee v. State, the Georgia Supreme Court held that

although a police officer has probable cause to search when that officer, through

training or experience, detects the smell of marijuana, in order to have probable

cause to arrest, additional factors must be present to show that a particular person

is the source of the odor; that is, the arresting officer have probable cause to believe

a particular person smells of marijuana because he is in possession of it. Caffee v.

State, 814 S.E.2d 386 (2018).

The analysis in Caffee is particularly applicable in the present case, where

the officer testified to the odor of marijuana coming from a luggage rack where

multiple suitcases and duffle bags were being stored. The officer’s basis for probable

cause was based entirely on his own sniff and the lack of a visible luggage tag. No

additional factors were present tending to show that this duffle bag was the source

of the odor. Officer Miller did not testify that he attempted to smell other bags on

the luggage rack or conducted any additional investigation to verify that the odor

was marijuana and was more likely than not coming from this duffle bag.

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Ill. THe CONFRONTATION CLAUSE REQUIRES THAT AN ACCUSED HAVE THE

OPPORTUNITY TO CROSS-EXAMINE A WITNESS AGAINST THEM, EVEN IF THE

STATEMENTS ARE NOT HEARSAY.

The State of Nebraska violated Vaughn’s rights under the Confrontation

Clause when an officer presented a fact essential to the prosecution by recounting

out of court statements elicited by police of an Amtrak employee, who was not called

to testify or identified by law enforcement, and the defendant had no opportunity to

cross-examine the employee who made the statement. The Confrontation Clause

provides, “In all prosecutions, the accused shall enjoy the right to be confronted

with the witnesses against him.” U.S. Const. Amend. VI.

The Confrontation Clause cannot be bypassed simply by a finding that the

statements are not hearsay. The Nebraska Supreme Court relied on bad law to

violate Vaughn’s rights in holding that statements by an Amtrak employee accusing

him of being the owner of a duffle bag of contraband was not hearsay so was not

subject to Confrontation concerns.

A. NON-TESTIFYING WITNESS STATEMENTS TO LAW ENFORCEMENT AS PART

OF AN INVESTIGATION ARE TESTIMONIAL AND SUBJECT TO THE

CONFRONTATION CLAUSE.

The Confrontation Clause provides, “In all prosecutions, the accused shall

enjoy the right to be confronted with the witnesses against him.” U.S. Const.

Amend. VI. “The right to confront one’s accusers is a concept that dates back to

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Roman times.” Crawford, 541 U.S. at 43. And from its earliest days, the right to

confrontation has been understood (as that passage from Crawford suggests) to

apply with special solicitude to out-of-court statements that are accusatory in

nature. The right, at its core, prohibits criminal prosecutions based on out-of-court

accusations. This Court reaffirmed that the Confrontation Clause was meant to

ensure that “the accused and the accuser engage in an open and even contest in a

public trial.” Lee v. Illinois, 476 U.S. 530, 540 (1986); see also California v. Green,

399 U.S. 149, 179 (1970) (Harlan, J., concurring) (“[T]he Confrontation Clause was

meant to constitutionalize a barrier against flagrant abuses, trials by anonymous

accusers, and absentee witnesses”); Bruton v. United States, 391 U.S. 123, 138

(1968) (Stewart, J., concurring) (“[A]n out-of-court accusation is universally

conceded to be constitutionally inadmissible against the accused.”).

Crawford established a test to determine whether an accused is entitled to an

opportunity to cross-examine a witness against them by creating the “testimonial”

requirement. 541 U.S. 36 (2004). As is applicable in the present case, this Court

held that “testimonial” statements may not be introduced at trial against criminal

defendants unless the declarants are unavailable and the defendants had an

opportunity to cross-examine them. A critical portion of this holding, and the

portion central to resolution of the two cases now before us, is the phrase

“testimonial statements.” Only statements of this sort cause the declarant to be a

“witness” within the meaning of the Confrontation Clause. Crawford v. Washington,

541 U.S. at 51. It is the testimonial character of the statement that separates it

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from other hearsay that, while subject to traditional limitations upon hearsay

evidence, is not subject to the Confrontation Clause. Davis v. Washington, 547 U.S.

813, 821 (2006). The opinion in Crawford set for “[v]arious formulations” of the core

class of “testimonial” statements, including “[s]tatements taken by police officers in

the course of interrogations.” Crawford, at 53. This Court in Davis clarified the

holding Crawford, stating:

Statements are nontestimonial when made in the course of police

interrogation under circumstances objectively indicating that the

primary purpose of the interrogation is to enable police assistance to

meet an ongoing emergency. They are testimonial when the

circumstances objectively indicate that there is no such ongoing

emergency, and that the primary purpose of the interrogation is to

establish or prove past events potentially relevant to later criminal

prosecution.

Davis, 547 U.S. at 822. The Court clarified that this holding refers to interrogations

because the statements in the case before the Court at that time involved

interrogations. Statements made in the absence of any interrogation can still be

testimonial. Jd. at fn 1.

In Bullcoming v. New Mexico, this Court was asked to address whether the

Confrontation Clause permits the prosecution to introduce a forensic laboratory

report containing a testimonial certification—made for the purpose of proving a

particular fact—through the in-court testimony of a scientist who did not sign the

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certification or perform or observe the test reported in the certification. 564 U.S.

647, 652 (2011). In reaching its decision, the Court noted that, “Most witnesses,

after all, testify to their observations of factual conditions or events, e.g., ‘the light

was green,’ ‘the hour was noon.’ Such witnesses may record, on the spot, what they

observed.” Id. at 660. The Court asked, “Could an officer other than the one who say

the number on the house or gun present the information in court—so long as the

officer was equipped to testify about any technology the observing officer deployed

and the police department’s standard operating procedures?” Id. (citing, Davis v.

Washington, this Court answered its question, “[e]mphatically “No.” Id. See Davis

v. Washington, 547 U.S. at 826 (the Confrontation Clause may not be “evaded by

having a note-taking police [officer] recite the ... testimony of the declarant.”).

In the present case, the statements made to Officer Miller by the Amtrak

employee were clearly testimonial. The prosecution was permitted to bring evidence

from an unnamed and unidentifiable Amtrak employee, whose statements formed a

direct accusation as to who owned the duffle bag full of contraband. The Amtrak

employee did not testify at trial and Vaughn had no opportunity to cross-examine

this witness prior to trial because the employee was not identified in the reports.

There was no emergency—no reports of injury, weapons, or drug use— Officer

Miller was conducting an investigation into this duffle bag. Additionally, evidence

presented at trial indicated that Amtrak had an agreement with the DEA to permit

DEA agents to enter and conduct investigations on their trains. (188:20-22; 224:2-7;

350:18-25; 351:1-3). An Amtrak employee would be aware of this arrangement and

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know what the purpose of Officer Miller’s questions were. Consequently, the

statements made by the Amtrak employee were testimonial in nature.

B. POST CRAWFORD V. WASHINGTON, OUT-OF-COURT STATEMENTS BY A

NON-TESTIFYING WITNESS THAT ARE NOT HEARSAY ARE SUBJECT THE

RIGORS OF THE CONFRONTATION CLAUSE IF THE STATEMENTS ARE

TESTIMONIAL.

The question of who owned and was in possession of the marijuana was

directly in dispute at trial but the Nebraska Supreme Court held that the

statements were not offered for the truth and therefore not hearsay-and exempt

from the rigors of the Confrontation Clause. 314 Neb. 167, 188 & 190. Nebraska

Supreme Court relied on Barrett v. Acevedo, 169 F.3d 1155 (8th Cir. 1999), and

United States v. Inadi, 475 U.S. 387 (1986), to hold that statements that are not

hearsay raise no Confrontation Clause concerns. 314 Neb. 167, 190. However, both

of these cases were decided before Crawford v. Washington. 541 U.S. 36 (2004).

Since Crawford, the analysis revolves around whether the statements were

testimonial or not. See Davis v. Washington, 547 U.S. 813, 821 (2006); Williams v.

Illinois, 567 U.S. 50, 64-65 (2012).

This Court has specifically rejected the Nebraska Supreme Court’s logic and

reliance on Barrett v. Acevedo and Inadi. See Williams v. Illinois, 567 U.S. 50, 64-65

(2012) (“Before Crawford, this Court took the view that the Confrontation Clause

did not bar the admission of an out-of-court statement that fell within a firmly

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rooted exception to the hearsay rule, but in Crawford, the Court adopted a

fundamentally new interpretation of the confrontation right, holding that

‘It]estimonial statements of witnesses absent from trial [can be] admitted only

where the declarant is unavailable, and only where the defendant has had a prior

opportunity to cross-examine.” Jd. (internal citations omitted)).

In Melendez-Diaz v. Massachusetts, this Court rejected the argument that a

DNA analyst’s certified report was exempt from the Confrontation Clause

requirements it was akin to a business record and “even if [it were a business

record], their authors would be subject to confrontation nonetheless.” Melendez-Diaz

v. Massachusetts, 557 U.S. 305, 321 (2009). See also United States v. Maher, 454

F.3d 13 (1st Cir. 2006) (nontestifying declarant-informant’s statement to drug task

force officer that defendant was involved in illegal drug dealing activity was

testimonial under Crawford rule); United States v. Meises, 645 F.3d 5 (1st Cir. 2011)

(testimony by task force member that targets the investigation changed after he

spoke with co-conspirator violated the defendants’ rights under the Confrontation

Clause); United States v. Kizzee, 877 F.3d 650 (5 Cir. 2017) (Detective’s testimony

conveyed nontestifying lay witness’s statements that the defendant was his drug

dealer. The Court held that the lay witness’s statements were offered for their

truth, the detective’s testimony contained a lay witness’s out-of-court testimonial

statements, and that the defendant did not have the opportunity to cross-examine

the witness, thus admission of the witness’s statements violated the Confrontation

Clause.). Cf. Williams v. Illinois, 567 U.S. 50, 66-67 (2012) (Confrontation Clause

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