Petition for Writ of Certiorari — Brad A. Smith, Petitioner v. United States

FILED

NOV 14 2024

No.

f \

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IN THE

SUPREME COURT OF THE UNITED STATES

BRAD A. SMITH

— PETITIONER

(Your Name)

vs.

UNITED STATES OF AMERICA — RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

Brad A. Smith, Reg. No. 19541-035 > pro se

(Your Name)

United States Penitentiary Terre Haute

PO Box 33

(Address)

Terre Haute, IN

(City, State, Zip Code)

N/A

(Phone Number)

47808-0033

!

QUESTION(S) PRESENTED

Did authorities violate The Fourth, Fifth, andSixth Amendments

to The United States Constitution when seeking to perform a "knockand-talk" interrogation by first calling the phone number posted

at the electronically-secured motorized gated entrance, but after

being refused, climbing through that secured gated entrance,

and after searching the curtilage, encountering Petitioner, telling

him that he could not refuse their presence under color of federal

immigration law, thereby demanding his identification, leading

authorities directly into Petitioner’s house

where Petitioner

was interrogated and items were seized, although Petitioner refused

to sighn a consent, and specifically invoked his right to counsel,

then after leaving, summoning Petitioner to their office, and

further interrogating him outside the presence of his attorney,

previously requested.

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LIST OF PARTIES

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

[ ] All parties do not appear in the caption of the case on the cover page. A list of

all parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

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TABLE OF CONTENTS

OPINIONS BELOW

1

JURISDICTION

2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

3

STATEMENT OF THE CASE

4

REASONS FOR GRANTING THE WRIT

7

14

CONCLUSION

INDEX TO APPENDICES

APPENDIX A - Judgment - United States Court of Appeals for the First Circuit

APPENDIX B ” Rehearing Denied

APPENDIX C

APPENDIX D

APPENDIX E

APPENDIX F

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IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

[ ] For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix

the petition and is

A

[ ] reported at

J or,

[ ] has been designated for publication but is not yet reported; or,

IX] is unpublished.

The opinion of the United States district court is unavailable to this

'- incarcerated Petitioner, and is

~

— —

[ ] reported at___________________________ ____________. or

[ ] has been designated for publication but is not yet reported; or,

[X] is unpublished.

[ ] For cases from state courts:

The opinion of the highest state court to review the merits appears at

Appendix-------- to the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

The opinion of the _

appears at Appendix

court

to the petition and is

[ ] reported at

J or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

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to

JURISDICTION

[ ] For cases from federal courts:

The date on which the United States Court of Appeals decided my case

was April 17. 2024

[ ] No petition for rehearing was timely filed in my case.

[Xj A timely petition for rehearing was denied by the United States Court of

Appeals on the following date:

August 19, 2024 ------? and a copy of the

I

order denying rehearing appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including---------------------------- (date) on___________________ (date)

in Application No. __ A

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

[ ] For cases from state courts:

The date on which the highest state court decided my case was

A copy of that decision appears at Appendix_______

[ ] A timely petition for rehearing was thereafter denied on the following date:

, and a copy of the order denying rehearing

appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including-----------------------(date) on_______________ (date) in

Application No. __ A

The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

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CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

This case involves search and seizure protections and privacy

concerns of The Fourth Amendment, as well as The Fifth Amendment's

protection against self-incrimination, and the right to counsel

guaranteed by both The Fifth and Sixth Amendments.

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STATEMENT OF THE CASE

During the course of investigating, agents were lead to a pecan

farm in Louisiana

This particular farm is encompassed by a

fence, adorned with "NO TRESPASSING" signs.

The driveway was

barricaded by an automated security gate, requiring a code to

be entered on a keypad for access up the driveway. [JA 135] 1

The gate did not offer an opening for a person to walk through.

[JA 301]

A sign at the gated entrance listed a phone number,

and read "for deliveries." [JA 208,256-57]

At that time, agents had been unable to satisfy probable cause

for issuance of a search warrant. [JA 301]

Sans warrant, agents

called the phone number listed and asked if tours were available.

Smith answered the call and told agents that no such tours or

visits are conducted. [JA 300]

Agents subsequently returned

to the farm and called the number again.

no answer. [JA 302]

This time, they received

Agents then squeezed through the secured,

gated entry. [JA 143-44]

After penetrating the security gate, agents walked up the driveway

and began searching and photographing the curtilage. [JA 306]

When Smith asked why they were there, they lied, and told Smith

they were there under federal statutory authority "to talk about

immigrants working on the farm." [JA 146-47,308]

Agents continued

1) "CIA" refers to the Joint Appendix, Vol. I, filed during direct Appeal, and is Smith's only

record references. See United States v. Smith, 919 F.3d 1 (1st Cir. 2019)

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their ruse, deceptively demanding access to the inside of Smith's

residence

as well as Smith's identification. [JA 152,310-11]

Once inside, agents pulled their "bait and swith',' intended all

along, and interrogated Smith about pornography downloads, aban­

doning their immigration farce.

Once told the true purpose for the agents' viisit, Smith refused

to sign a consent form. [JA 314]

Agents seized items anyway.

Smith was asked to accompany agents to their "office" for further

questioning.

Smith declined.

hiring an attorney?"

When asked, "Do you intend on

Smith answered unequivocally, "...yes."

Agents then advised Smith "He can turn himself in" a^ter Smith's

attorney conferred with the prosecution team.

Less than an hour after leaving Smith's house, agents created

yet another lie,

to lure Smithhto the police station, without his

lawyer, ostensibly to retrieve his confiscated property. [JA

187,245,323]

When Smith arrived at the police station to collect

his things, he was immediately arrested and questioned once more

outside the presence of counsel, after Smith had affirmatively

1

invoked his right, and even signed a form indicating Smith did

not wish to waive his rights. [Form presented as Exhibit at the

Supres-sion Hearing]

Smith was subsequently indicted for violating 18 U.S.C. §2251(a).

See United States v. Smith, No. 16-cr-91-JL (D. NH 2016).

proceeded to trial, and was convicted.

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Smith

All the evidence obtained

by agents the day Smith was arrested was introduced as evidence

during trial.

Smith was sentenced to an aggregate fifty-year

imprisonment.

The First Circuit affirmed on appeal. See United

States v. Smith, 919 F.3d 1 (1st Cir. 2019).

This Court denied

certiorari. See United States v. Smith, 205 L.Ed.2d 107 (2019).

Smith filed a Motion to Vacate, Set Aside, or Correct his Judgment

and Sentence, pursuant to 28 U.S.C. §2255. See Smith v. United

States, No. 20-cv-1034 (D. NH 2020).

court denied Smith's Motion

of Appealability.

After a hearing, the district

and declined to issue a Certificate^

The First Circuit also declined to issue a

Certificate of Appealability.

22-1682 (1st Cir. 2024).

See United States v. Smith, No

This Petition now follows.

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REASONS FOR GRANTING THE PETITION

"Generally, all persons have an implied license to enter property

and knock on a homeowner's door." Kentucky v. Kins, 563 U.S. 452,

469 (2011).

This questions first, whether Smith "exhibited an

actual (subjective) expectation of privacy, and, second, that

the expectation be one that society is prepared to recognize

as 'reasonable. I ft Katz v. United States

389 U.S. 347,361 (1967).

A concept "generally managed without incident by the Nation's

Girl Scouts and trick-or-treaters." Florida v. Jardines, 569

U.S. 1,8 (2012).

Apparently, not so easily done for law enforcement.

Nevertheless, no Girl Scout, trick-or-treater, or any other reason­

able person would believe it is reasonable or acceptable to squeeze

through a closed gated entrance, accessible only by entering

a security code into a keypad.

Indeed, a business protecting

its crops from poachers and insulating against civil liability

incurred by visitors, trespassers, and intruders alike.

Not

to mention the standard plethora of privacy concerns well established

by This Court.

Yet even with all the extra security, nonetheless, the district

court pronounced "the presence of directions for delivery persons

to call in order to drive through the gate does not convey a

message to the casual visitor that the homeowner has revoked

the implied license to enter." United States v. Smith, 2017 DNH

i223 (D.-NH 2017)(emphasis in original).

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However, this ridiculous

statement was not well taken by the First Circuit Panel which

properly and correctly Massume[d] arguendo that the locked gate

revoked the implied license of entry." United States v. Smith,

919 F.3d 1,14 (1st Cir. 2019).

"When a law enforcement officer;

physically intrudes on the curtilage to gather evidence

a search

within the meaning of the Fourth Amendment has occurred'.’ Collins

v. Virginia, 584 U.S. 586,593 (2018).

But agents did not stop

with just busting through the gate.

They then searched and took

photos under a carport, "an area adjacent to the home and 'to

which the activity of home life extends." Id., 594 (citations

omitted).

Therefore, it is clear that agents should not have

trespassed onto the property, and everything that followed is

fruit of the poisonous tree. See Wong Sun v. United States, 371

U.S. 471 (1963).

That should conclude the matter.

However, the initial poisonous

first encounter with Smith, is itself, further toxic.

When Smith

initially asked the purpose for their snooping, agents asserted

federal statutory authority to search the farm for immigrant

work violations, thereby "announc[ing] in effect that [Smith]

ha[d] no right to resist the search" agents were fraudulently

insisting to perform. Schneckloth v. Bustamonte, 412 U.S. 218,234

(1973)(quoting Bumper v. North Carolina, 391 U.S. 543 (1968)).

Such false assertion of authority certainly invalidates any subsequent actions or consents.

m i

Where, as here, the law enforcement

officer without a warrant uses his official position of authority

and falsely claims that he has legitimate police business to

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conduct in order to gain the premises when, in fact, his real

reason is to search inside for evidence of a crime...this deception

under the circumstances is so unfair as to be coercive and...renders

the consent invalid. I If Pagan v. Moreno

919 F.3d 582,593 (1st

Cir. 2019)(quoting People v. Daugherty, 161 Ill. App.3d 394,

514 N.E.2d 228,233 112 Ill. Dec. 762 (Ill. App. Ct. 1987)).

Unquestionably, these "deceptive tactics" clearly prevented Smith

from making "an essentially free and unconstrained choice."

Schneckloth, at 225.

Such "deception vitiates consent transforming

the entry into a trespass," Pagan-Gonzalez, at 594,n.10 (citing

Laurent Sacharoff, Trespass and Deception, 2015 B.Y.U.L. Rev.

359,364 (2015)), because "where there is coercion there cannot be

consent." Schneckloth, at 234 (quoting Bumper j supra); see also

Pagan-Gonzalez, at 14 (quoting United States v. Bosse, 898 F.2d

113,115 (9th Cir. 1990)(per curiam)(invalidating consent where

agents depicted themselves as state licensing officials)).

Nevertheless, here, not only has the district court declared

government agents can literally crawl through a gated security

entrance to conduct a "knock and talk" interrogation, but also

that these same agents may falsely assert statutory authority

(to which a subject cannot refuse) compelling their presence.

Moreover, after tricking a suspect, and illegally gaining access

to property, they may then proceed to perform an illegal search

and seizure, as well as badger a subject whom has refused to

sign a consent (which was their admitted objective from the start)

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all absent Constitutionally required finding of probable cause

and accompanying warrant.

None of this complies with This Court's decisions in these areas.

Furthermore, in Pagan-Gonzalez, supra, the First Circuit meticu­

lously reviewed the relevant Fourth Amendment law in all the

Circuits.

Following that extensive analysis, as well as This

Court's decisions, Pagan-Gonzalez, supra, offered an extremely

well reasoned opinion which defies each and every aspect of the

agents' conduct in this case.

These precedents make undeniable

that agents violated nearly every protection afforded by the

Fourth, Fifth, and Sixth Amendments to the United States Con­

stitution, piling up violation after violation, each in sequence

further exacerbating the dimensions of the agents' unconstitutionality.

And if all that is not bad enough, after illegally searching

Smith's property and unconstitutionally seizing Smith's personal

items, agents further attempted to initiate questioning,

At

that time, Smith unequivocally invoked his right to counsel for

interrogation, thereby affirmatively communicating his "desire

to deal with police only through counsel." Edwards v. Arizona,

451 U.S. 477,484-85 (1981).

So in order to circumvent this request

for counsel, yet another ruse was employed to perform further

interrogation of Smith.

Less than an hour after leaving Smith's

residence, agents then summoned Smith to the police station under

the guise of returning Smith's personal property which agents

had illegally seized only moments before, during the unconstitutional

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penetration and search of the farm. [JA 187,245,323]

Upon arriving

at the police station, Smith was immediately arrested, and subse­

quently signed a notice of rights, checking the box on the form .

which indicated that Smith chose not to waive his Miranda rights

at that time, absent counsel. [Form presented as Exhibit at Sup­

pression Hearing}.

Once again, affirming his decision not to

waive his right to counsel.

Furthermore

in light of the agent telling Smith previously that

giving information to the agents "can't hurt" him, it is extremely

unlikely "that he was aware of the [agents'] intention to use

his statements to secure a conviction" against him. Moran v.

Burbine, 475 U.S. 412,422 (1986).

This Court has made clear

that statements like this render any subsequent consent invalid.

"[I]t is inconsistent with Miranda and its progeny for the authori­

ties, at their instance, to reinterrogate an accused in custody

if he has clearly asserted his right to counsel." Edwards, at

485.

Indeed, "Edwards rested on the view that once 'an accused... !

ha[s] expressed his desire to deal with the police only through

counsel':he should 'not [be] subject to further interrogation

by the authorities until counsel has been made available to him,

unless the accused himself initiates further communication: i ii

Patterson v. Illinois, 487 U.S. 285,291 (1988)(quoting Edwards,

at 484-85); cf. also Michigan v. Mosley, 423 U.S. 96,104,n.10 (1975).

Although, as fully on display here, trained interrogators have

improved skillfully, reducing the Constitution to a myth with

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a litany of convenient technology failures, memory lapses, evi­

dence destruction, and frankly, obvious-out-right-lies, all

tailored to circumvent every protection our founding fathers

demanded to secure individual rights of citizens,

Rulings in

this area are designed to prevent police from badgering a person

into waiving his previously stated Miranda rights, as was done

here. Michigan v. Harvey, 494 U.S. 344,350 (1990).

To endorse

the decisions made by the district court in this case is to continue

to rubberstamp further Constitutional manipulation by authorities,

thereby killing the Rule of Law.

Obviously, the district court strained itself in order to justify

the conduct of the agents in this case, which far exceeds any

level of objective reasonableness.

However, "The Constitution's

historic protections for the sancticy of the home and its surroundings

demand more respect from [courts] than was displayed here." Bovat

v. Vermont, 592 U.S. __ (2020)(Statement of Gorsuch, J., Respecting

Denial of Certiorari).

Allowing such egregious conduct by authorities

to stand uncorrected would be to spit in the face of stare decisis

and The Constitution.

Indeed, the actions taken by the agents

in this case is the very reason that people are literally rioting

in thew streets for justice reform.

Smith has easily "demonstrate[d]

that reasonable jurists would find the district court's assessment

of the Constitutional claims debatable or wrong." Miller v. Estelle,

463 U.S. 880,893,n.4 (1983); see also Slack v. McDaniel, 529

U.S. 743,484 (2000).

Simple debatability of these claims is

a minimal hurdle, which Smith has easily cleared.

Especially

since the analysis is to "start with a presumption that [Smith]

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did not waive his rights," United States v. Carpentino, 948 F.3d

10,26 (1st Cir. 2020).

The district court's decision is clearly

debatable by jurists of reason.

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CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Date:

Novermber 14, 2024

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