Petition for Writ of Certiorari — Michael Angelo Delpriore, Petitioner v. United States

Supreme Court briefMay 15, 2025

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CASE NO.

IN THE SUPREME COURT OF THE UNITED STATES

MICHAEL ANGELO DELPRIORE,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO REVIEW A

JUDGMENT OF THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Of Counsel:

J. RAFAEL RODRÍGUEZ

6367 Bird Road

Miami, Florida 33155

(305) 667-4445

Attorney for Petitioner

(305) 667-4445

(305) 667-4118 (FAX)

jrafrod@bellsouth.net

LAW OFFICES OF

J. RAFAEL RODRÍGUEZ

6367 Bird Road

Miami, Florida 33155

i

QUESTIONS PRESENTED FOR REVIEW

I.

PETITIONER’S ARREST AND THE ENSUING SEARCH AND

SEIZURE VIOLATED THE FOURTH AMENDMENT AND

THE COURT OF APPEALS CLEARLY ERRED IN

UPHOLDING THE DISTRICT COURT’S RULING DENYING

PETITIONER’S MOTION TO SUPPRESS

ii

TABLE OF CONTENTS

Page(s)

QUESTIONS PRESENTED FOR REVIEW

..ii

TABLE OF AUTHORITIES

..v

OPINIONS RENDERED IN THE COURTS BELOW

..2

STATEMENT OF JURISDICTION

..2

CONSTITUTIONAL AND STATUTORY PROVISIONS

..2

STATEMENT OF THE CASE

..3

STATEMENT OF THE FACTS

..7

ARGUMENT

..21

I.

PETITIONER’S ARREST AND THE ENSUING SEARCH AND

SEIZURE VIOLATED THE FOURTH AMENDMENT AND THE

COURT OF APPEALS CLEARLY ERRED IN UPHOLDING THE

DISTRICT COURT’S RULING DENYING PETITIONER’S

MOTION TO SUPPRESS

CONCLUSION

..39

CERTIFICATE OF SERVICE

..40

iii

TABLE OF AUTHORITIES

CASE

PAGE

Adams v. Williams, 407 U.S. 143 (1972)

..23

Atwater v. City of Lago Vista, 532 U.S. 318 (2001)

..6,25,26

Beck v. State of Ohio, 379 U.S. 89 (1964)

..23

Brinegar v. United States, 338 U.S. 160 (1949)

..21

Brown v. Illinois, 422 U.S. 590 (1975)

..38

Devenpeck v. Alford, 543 U.S. 146 (2004)

..31

Gant v. Arizona, 556 U.S. 332 (2009)

..37

Graham v. Connor, 490 U.S. 386 (1989)

..6,34,35

Hamilton v. State, 59 P.3d 760 (Alaska Ct. App. 2002)

..26,27.28

INS v. Delgado, 466 U.S. 210 (1984)

..23

Katz v. United States, 389 U.S. 347 (1967)

..21

Knowles v. Iowa, 525 U.S. 113 (1998)

..29

Liparota v. United States, 471 U.S. 419 (1985)

..30

Maryland v. Pringle, 540 U.S. 366 (2003)

..5,21

Michigan v. Long, 463 U.S. 1032 (1983)

..37

Mincey v. Arizona, 437 U.S. 385 (1978)

..21,32

Nix v. United States, 467 U.S. 431 (1984)

..38

iv

Scott v. Harris, 550 U.S. 372 (2007)

..35

Segura v. United States, 468 U.S. 796 (1984)

..38

Skilling v. United States, 561 U.S. 358 (2010)

..30

United States v. Delpriore, 2025 WL 80360

(9th Cir., January 13, 2025)

..2

United States v. Sharpe, 470 U.S. 675, 682 (1985)

..23

Utah v. Strieff, 579 U.S. 232 (2016)

..38

Vale v. Louisiana, 399 U.S. 30 (1970)

..21,32

Virginia v. Moore, 553 U.S. 164 (2008)

..6,26,27,

32,33

Whren v. United States, 517 U.S. 806 (1996)

..26

Wong Sun v. United States, 371 U.S. 471 (1963)

..38

CONSTITUTION

Fourth Amendment, United States Constitution

..4,21,27,

29,33,35

STATUTE

18 U.S.C. §922(g)(1)

..4

18 U.S.C. §924(a)(2)

..4

18 U.S.C. §924(c)(1)(A)(i)

..3

21 U.S.C. §841(a)(1)

..3

21 U.S.C. §841(b)(1)(B)

..3

v

21 U.S.C. §841(b)(1)(C)

..3

28 U.S.C. §1254

..2

28 U.S.C. §1254(1)

..2

Alaska Stat. §28.10.171

..25,28,30

31,32,33

Alaska Stat. §28.10.171(a)

..26

Alaska Stat. §28.10.171(b)

..26,28,29

Alaska Stat. §28.90.010

..30,32,33

Alaska Stat. §28.90.010(a)

..30,31

Alaska Stat. §28.90.010(b)

..30,31

Alaska Stat. §28.90.010(c)

..30,31,33

Alaska Stat. §28.90.010(d)

..30,31,33

Uniform Minor Offense Table (UMOT)

..28,32,33

https://public.courts.alaska.gov/web/scheduled/docs/UMOT_Title28.pdf

https://public.courts.alaska.gov/web/forms/docs/pub-131.pdf

(Vehicle and Traffic Offenses Booklet, Version A)(March 2024)

..29,32

https://public.courts.alaska.gov/web/forms/docs/pub-132.pdf

(Vehicle and Traffic Offenses Booklet, Version B)(March 2024)

..29,32

Anchorage Municipal Code (AMC) §9.30.155

..30,32,33

Anchorage Municipal Code (AMC) §9.52.030

..32,33

vi

RULE

Rule 29.5, Rules of Supreme Court

..40

Rule 407, Alaska Rules of Appellate Procedure

..30

Rule 3, Alaska Rules of Minor Offense Procedure

..29

vii

CASE NO.

IN THE SUPREME COURT OF THE UNITED STATES

MICHAEL ANGELO DELPRIORE,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO REVIEW A

JUDGMENT OF THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Petitioner, MICHAEL ANGELO DELPRIORE, respectfully prays this

Court issue a Writ of Certiorari to review the Judgment of the United States Court

of Appeals for the Ninth Circuit entered in this case on January 13, 2025, affirming

Petitioner’s judgment of conviction and sentence, rehearing denied February 20,

2025.

1

OPINIONS RENDERED IN THE COURTS BELOW

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

United States of America v. Michael Angelo Delpriore, No. 23-481

(9th Cir., January 13, 2025), rehearing denied, February 20, 2025. [United States

v. Delpriore, 2025 WL 80360 (9th Cir., January 13, 2025)].

STATEMENT OF JURISDICTION

On January 13, 2025, the United States Court of Appeals for the Ninth

Circuit issued its opinion in United States of America v. Michael Angelo Delpriore,

No. 23-481 (9th Cir., January 13, 2025)(rehearing denied on February 20,

2025)(mandate issued on February 28, 2025). The decision affirmed Petitioner’s

conviction and sentence. (Appendix A). [United States v. Delpriore, 2025 WL

80360 (9th Cir., January 13, 2025)].

The statutory provision which confers on this Court jurisdiction to review

the above-described decision of the Court of Appeals for the Ninth Circuit by writ

of certiorari is Section 1254(1) of Title 28, United States Code. (Appendix B).

CONSTITUTIONAL AND STATUTORY PROVISIONS

The following constitutional and statutory provisions are quoted in Appendix

B:

Section 1254 of Title 28, United States Code, 28 U.S.C. Section 1254.

2

STATEMENT OF THE CASE

FACTS MATERIAL TO THE CONSIDERATION

OF THE QUESTION PRESENTED

COURSE OF PROCEEDINGS AND DISPOSITION IN THE

DISTRICT COURT AND THE COURT OF APPEALS

Petitioner, Michael Delpriore, was a defendant in the district court and

appellee, United States of America, was the prosecution. Record references will be

made by referring to the Docket Entry [DE] and the Excerpts of Record (Volume

and Page Number): Volume 1 [1-ER], Volume 2 [2-ER], Volume 3 [3-ER],

Volume 4 [4-ER] and Volume 5 [5-ER]. The parties will be referred to as they

appeared below. All emphasis is supplied unless otherwise indicated. The

interested parties in this case are Defendant and the Government.

Petitioner was charged by a first superseding indictment alleging that on or

about August 7, 2018, he knowingly and intentionally possessed with intent to

distribute a 100 grams or more of a mixture and substance containing a detectable

amount heroin, in violation of 21 U.S.C. §841(a)(1), (b)(1)(B) [Count 1]; he

knowingly and intentionally possessed with intent to distribute methamphetamine,

in violation of 21 U.S.C. §841(a)(1), (b)(1)(C) [Count 2]; he knowingly and

intentionally possessed and carried a firearm during and in relation to and in

furtherance of federal drug trafficking crime, in violation of 18 U.S.C.

§924(c)(1)(A)(i) [Count 3]; and he knowing that he had been convicted of a crime

3

punishable by imprisonment for a term exceeding one year, knowingly possessed,

in and affecting interstate commerce, a firearm, a semiautomatic pistol, in violation

of 18 U.S.C. §922(g)(1) and 924(a)(2). [Count 4]. The indictment also alleged

enhanced statutory penalties and two criminal forfeiture counts. (DE 28; 5-ER1027).

The defense filed a motion to suppress all evidence obtained in violation of

the Fourth Amendment, United States Constitution. (DE 45; 5-ER-996). After a

series of hearings before the magistrate judge and the district court judge, the

district court entered an order denying Petitioner’s motion to suppress. (DE 197; 1ER-19). The defense filed a motion to reconsider the order denying the motion to

suppress. (DE 207; 5-ER-898). The Government filed a response. (DE 211; 5-ER889). The district court entered an order denying the motion to reconsider. (DE

212; 1-ER-10).

The case proceeded to trial. The jury found Petitioner guilty on counts 1, 2,

3 and 4 the first superseding indictment. (DE 335: 7: DE 335: 28-29; 3-ER-605; 3ER-626-627). The district court sentenced Petitioner to 132 months incarceration

and five years of supervised release. (DE 379: 31). Judgment was entered. (DE

380; 1-ER-2). Defendant appealed to the Ninth Circuit Court of Appeals

challenging the denial of his motion to suppress. The appellate court conducted an

oral argument in the case on December 5, 2024. On January 13, 2025, the Ninth

4

Circuit issued an opinion affirming Defendant’s conviction and sentence.

(Appendix A). In its opinion, the Ninth Circuit found that the district court did not

clearly err in its factual findings in its decision to deny Defendant’s motion to

suppress, which are supported by substantial evidence admitted at the suppression

hearing. This evidence included a video taken by a dash camera onboard Officer

Ryan Proegler’s patrol car which recorded the initial portion of the encounter

between Delpriore and officers from the Anchorage Police Department (App. A:

2). The Ninth Circuit also found that the district court did not err in ruling that

Delpriore’s arrest was supported by probable cause. A warrantless arrest of an

individual in public committing a misdemeanor in an officer’s presence comports

with the strictures of the Fourth Amendment if the arrest is supported by probable

cause. [citing Maryland v. Pringle, 540 U.S. 366, 370 (2003)]. (App. A: 2).

The Court of Appeals explained that when Delpriore was stopped in 2018,

the Alaska Division of Motor Vehicles was required by law to issue two license

plates to each registered passenger vehicle one of which was required to be

displayed on the front of the automobile and the other on the rear. The failure to

display license plates in the manner delineated under Alaska law is classified as a

misdemeanor. Delpriore testified that immediately before he was stopped by

Anchorage police officers, he was driving out of the parking lot with the intention

of entering the public roadway. One of the officers, Off. Proegler, saw that

5

Delpriore’s vehicle was missing a front license plate. Based on the foregoing, the

circumstances of the stop gave rise to a sufficient probability that Delpriore

violated, or was attempting to violate, Alaska statute, which is all that is required

under the probable cause standard. [citing Atwater v. City of Lago Vista, 532 U.S.

318, 354 (2001)]. Therefore, the stop of Delpriore’s car, his arrest, and the

subsequent searches and seizures were all supported by probable cause. (App. 2-4).

In a footnote, the Court of Appeals rejected Delpriore’s argument that the Alaska

Supreme Court and the local Anchorage Municipal Code treated the failure to

display a front license plate as a non-arrestable offense, noting that a state’s

decision to regulate arrests for particular crimes does not alter the scope of the

Fourth Amendment’s protections. [citing Virginia v. Moore, 553 U.S. 164, 137-76

(2008)]. (App. A: 3: n.3).

The Court of Appeals also found that the district court did not err in ruling

that suppression of the evidence for purported outrageous police conduct was

unwarranted. The Court agreed that in order to determine whether the officers’

actions were reasonable, a court must balance the nature and quality of the

intrusion on the individual’s Fourth Amendment interests against the

countervailing governmental interests at stake. [quoting Graham v. Connor, 490

U.S. 386, 396 (1989)]. (App. A: 4). The Court of Appeals found the district court

had correctly concluded that it was Mr. Delpriore’s continued refusal to obey the

6

officers’ commands that escalated the situation and caused the standoff in the

parking lot. The Court of Appeals noted that it was only after Delpriore had

moved his car multiple times did an officer’s vehicle make slight contact with his

car. The Court also noted that while the officers drew their handguns, it was only

after Delpriore’s continued movement of his car and his failure to comply with

instructions. The Court pointed out that Delpriore not only refused to exit his car

he also frequently moved his hands where the officers could not see what he was

doing. No shots were fired, and the officers never deployed the 40mm less-lethal

impact launcher that they warned him about. (App. A: 5).

This Petition for Writ of Certiorari follows. Petitioner Delpriore is presently

incarcerated.

STATEMENT OF FACTS

The defense filed a motion to suppress all evidence obtained in violation of

the Fourth Amendment, United States Constitution. (DE 45; 5-ER-996). The

Court conducted an evidentiary hearing on the motion. (DE 68; 4-ER-650). The

magistrate judge issued a final report and recommendation to deny the motion to

suppress. (DE 83; 1-ER-53). The defense filed a motion to supplement the record

and/or reopen the evidence in support of Defendant’s motion to suppress. (DE 124;

5-ER-940). A second evidentiary hearing was conducted where Defendant

testified. (DE 149; 4-ER-798). The magistrate judge issued a report and

7

recommendation to deny Defendant’s motion to suppress on reconsideration. (DE

164; 1-ER-33). The defense filed objections to the report and recommendation

(DE 177; 5-ER-918) and a supplement to the objections to the report and

recommendation. (DE 181; 5-ER-908). The district court conducted a hearing and

entertained argument on Defendant’s motion to suppress. (DE 390; 4-ER-866).

The district entered an order accepting the report and recommendation in part. The

district did not adopt the magistrate judge’s analyses regarding reasonable

suspicion of vehicle theft as a basis for a constitutional traffic stop. However, the

district court found that the officers had probable cause of an arrestable offense

(lack of a front license plate) when Defendant was arrested at the outset.

Defendant’s motion to suppress was denied. (DE 197: 13-14; 1-ER-19). Defendant

filed motion to reconsider the order regarding the motion to suppress. (DE 207; 5ER-898). The Government filed a motion in opposition to the motion for

reconsideration. (DE 211; 5-ER-889). The district court denied the motion to

reconsider. (DE 212; 1-ER-10).

The District Court Hearings and Orders

The magistrate judge conducted an initial evidentiary hearing on

Defendant’s motion to suppress. (DE 68; 4-ER-1]. The Government called Officer

Ryan Proegler, Anchorage Police Department (APD), who testified that on

August 7, 2018, he was dispatched to 5810 Rocky Mountain Court regarding a

8

possible chop shop. Proegler drove to the east side of Rocky Mountain Court near

Boniface Parkway. (DE 68: 5-7; 4-ER-654-656).1 Proegler planned to park a short

distance away and approach on foot to determine what was going on. Officer

Kollin Wallace was also dispatched to the scene. Wallace parked his car in front

of Proegler’s car. Proegler noticed several vehicles parked in front of the residence

at 5810 Rocky Mountain Court, a four-plex apartment complex. He also saw

another a maroon truck parked adjacent to the parking area directly on the street in

front of the parking area for the apartments. The time was just after noon. (DE 68:

7-9; 4-ER-656-658). As Proegler approached on foot Officer Wallace informed

him there was a possible stolen vehicle parked outside. At that time, Proegler

noticed a red Mustang begin to leave the area. The Mustang had been parked

perpendicular to the marron truck, facing toward it. Proegler stated the front plate

was not visible on the Mustang. (DE 68: 9-10; 4-ER-658-659). Officer Wallace

began pulling forward and Proegler pulled his firearm and gave the driver

The call reported a male spray-painting vehicles in the driveway of 5810

and there were multiple pit bulls roaming around unrestrained. (DE 68: 24; 4-ER673). There was no indication Defendant was involved in the spray-painting or

that he matched any description of the male in the call. According to Proegler,

Defendant was just in the “proximity” of the vehicles. (DE 68: 24; 4-ER-673). The

call did not give a description of a Mustang and there was no information that the

Mustang was associated with any of the apartment units or any of the vehicles. (DE

68: 24-25; 4-ER-673-674).

1

9

commands to stop.2 The driver of the Mustang pulled in reverse briefly and rolled

away from Wallace’s patrol car and began to loudly argue with Proegler. Wallace

car was now head-to-head with the Mustang. (DE 68: 10-11; 4-ER-659-660).3

Proegler testified the driver told Proegler to put his gun away and that he did not

have probable cause to talk to him. He said he was not getting out of the car.

Proegler stated he was not pointing the gun at the driver. He pulled the gun

because he was in a dangerous situation and gave commands to the driver before

he had an opportunity to leave the scene. The driver did stop his car. Proegler was

determined to find out the driver’s involvement with the stolen vehicle and he

planned to speak with him because he believed he was a potential suspect since he

was trying to leave immediately as the police arrived. (DE 68: 11-12; 4-ER-660661). Proegler loudly told the driver to get out of the car and keep his hands

Both officers pulled their guns. (DE 68: 28; 4-ER-677). Proegler wanted

to detain Defendant. (DE 68: 28; 4-ER-677). According to Proegler, his decision

to detain Defendant stemmed from his proximity to the stolen vehicle, his actions

in attempting to leave the area as soon as the police arrived, and his steps to

conceal his identify within the car such as the tinted windows and lack of a front

plate. (DE 68: 36; 4-ER-685). Proegler noted Defendant was “not receptive” to a

brief contact. (DE 68: 36; 4-ER-685). Proegler admitted neither the tinted

windows nor not having a front license plate were arrestable offenses. (DE 68: 38;

4-ER-687). Proegler stated that failure to display a license plate is a municipal

offense which is not arrestable. (DE 68: 39; DE 68: 41; DE 68: 42; 4-ER-688; 4ER-690; 4-ER-691). Defendant was handcuffed for being a suspect for vehicle

theft and arrested for obstruction. (DE 68: 42; DE 68: 43-44; 4-ER-691; 4-ER-692693).

3 Proegler stated Defendant’s vehicle was blocked in as Proegler was giving

commands. (DE 68: 27-28; 4-ER-676; DE 68: 32; 4-ER-681).

2

10

visible. Both he and Wallace were in uniform and were in marked police cars.

Proegler identified Defendant as the driver. (DE 68: 12-13; 4-ER-661-662).

Proegler wanted to detain Defendant to speak with him about the vehicle.

Defendant continued to argue with Proegler and kept rolling his window up and

down as he spoke. Defendant refused to keep his hands visible and leaned forward

multiple times as if to reach down near the floorboards. Proegler continued to give

him commands to keep his hands visible. He deployed a 40mm impact weapon to

potentially shatter the window if he continued to roll it up. Proegler warned

Defendant they were going to have to knock out the window if he kept rolling it

up. (DE 68: 13-15; 4-ER-662-664). Once additional officers arrived on the scene,

Defendant complied with the commands and exited his car. Defendant removed

his jacket before getting out of the car. (DE 68: 16; 4-ER-665). Defendant was

handcuffed and placed in one of the patrol cars. (DE 68: 17; 4-ER-666). Proegler

testified that as he was approaching Defendant’s vehicle there was no front license

plate visible on the Mustang. He did not see a dealer tag or temporary tag. (DE 68:

17; 4-ER-666). The officer did not write a ticket for no current license plate. (DE

68: 35; 4-ER-684). Proegler did not search the car but removed a dog from the

vehicle. The vehicle was later searched after a search warrant was procured. (DE

68: 18; 4-ER-667). Defendant did not give consent to seize his car or open it. (DE

68: 31-32; 4-ER-680-681).

11

Officer Zachary Hughes, APD, testified he got involved in the

investigation after the initial officers responded to the scene regarding a suspicious

vehicle. Hughes learned the vehicle came back stolen. As the officers were

approaching the vehicle, a red Mustang attempted to leave the area. The officers

made contact with the driver, who tried to reverse out. The officers blocked him

and started giving commands. When the driver refused to respond, more units

were called. (DE 68: 45-46; 4-ER-694-695). Officer Hughes appeared at the scene

to assist. He saw officers with both lethal firearms and long guns and non-lethal

40mm launchers giving commands. Hughes deployed a long gun and stood behind

a patrol car which was in front of the Mustang. Eventually, the driver, Defendant,

got out of the car and was placed in handcuffs. Hughes testified that while

Defendant was in his car he could not see his hands but was moving his hands up

and down. Defendant would roll his window down and up while talking to the

officers. Off. Hughes grew concerned because he could not see Defendant’s hands

and the police did not know what was in the vehicle. All the officers were pointing

their guns toward Defendant’s vehicle. (DE 68: 46-49; 4-ER-695-698). After

Defendant got out of the car, Defendant took off his jacket and left it in his car. He

walked backward toward the officers. Hughes looked inside the car through the

open door and saw knives, a tomahawk and a marijuana grinder in the area of the

driver’s front seat. In the backseat, Hughes saw numerous backpacks, numerous

12

electric drills and chisels and two cell phones. (DE 68: 49-51; 4-ER-698-700).

Hughes felt the drills were significant because the stolen car that the Mustang was

originally parked next to had the ignition drilled out and metal shavings were all

over the floorboard. (DE 68: 51; 4-ER-700). Hughes applied for a search warrant,

which he identified. (Exh. 2). The officers were initially looking for drills, drill

bits and electronics. (DE 68: 51-52; 4-ER-700-701). The warrant was executed the

following day. The vehicle was impounded in the APDs indoor secure storage.

Hughes executed the warrant. The vehicle had an Alaska plate Kilo Charlie

Romeo 113. (DE 68: 53-54; 4-ER-702-703). During the ensuing search, the

officers recovered the jacket with two syringes loaded with clear fluid and a Mavic

Pro drone in one of the backpacks, which was reported stolen. Additionally, the

officers found numerous computers and tablets as well as a Springfield .45

handgun and presumptive heroin hidden underneath the dash. At that point,

Hughes obtained an amended warrant because the initial warrant did not include

the firearm, ammunition or firearm accessories. No new evidence was found after

the execution of the second warrant. (DE 68: 54-55; 4-ER-703-704).

Officer Kollin Wallace, APD, testified that on August 7, 2018, he was

dispatched to 5810 Rocky Mountain Court. (DE 68: 75-76; 4-ER-724-725).

Officer Wallace testified that neighbors had called in regarding a suspected chop

13

shop or someone working on a stolen vehicle.4 Upon arrival at the scene, Wallace

saw a pick-up truck parked along the side of the road. Wallace ran the license

plate. Wallace also saw two other cars adjacent to the residence and a red Mustang

parked in close proximity to the pick-up truck. (DE 68: 77-78; 4-ER-726-727).5

The license plate on the truck came back as a stolen vehicle. Wallace told Off.

Proegler that the truck was stolen. As Proegler was walking beside Wallace’s car,

the red Mustang began to move. There was enough room for the Mustang to leave.

Wallace decided to pull his car forward to prevent the Mustang from pulling out by

squaring off the front of his vehicle with the Mustang. (DE 68: 79-80; 4-ER-728729). Wallace activated his lights. Off. Proegler began giving commands to the

driver of the Mustang to stop. Wallace saw the driver. Wallace testified he was

detaining the driver as a possible suspect due to his close proximity to the stolen

vehicle. At one point, the Mustang went into reverse. Wallace saw the driver

looking left and right apparently looking for somewhere to move his vehicle to get

around. Wallace kept his car in contact with the Mustang. Eventually, the

Mustang drove up against a fence or some other car. (DE 68: 81-82; 4-ER-730-

On cross-examination, Wallace conceded that part of the call involved

someone spray-painting vehicles and roaming pit bulls in the area. (DE 68: 95; 4ER-744).

5 On cross-examination, Wallace was asked if he ran the plate on the

Mustang. Wallace testified he ran the plate at one point. The vehicle was not

stolen. (DE 68: 99-100; 4-ER-748-749).

4

14

731). At this point, Wallace placed his car in park and got out of the car. Wallace

drew his gun and took cover behind his car. He also gave commands to the driver.

Wallace hoped to detain the driver for identification purposes and further the

investigation into the stolen vehicle. It was important to get the driver out of his

car because of the inherent risk to the officers. The car had tinted windows. The

police are taught never to approach a vehicle but have the driver come to them.

(DE 68: 82-83; 4-ER-731-732). During the times that Defendant rolled down his

window, Wallace could see Defendant reaching down towards the floorboard or

the bottom of the vehicle. (DE 68: 87; 4-ER-736). Other officers arrived on the

scene. Defendant was still in the driver’s seat of his car. Another officer took over

giving Defendant commands and Defendant finally got out of the car after threats

of using a 40mm baton round on the car window. When he is getting out of the

car, Defendant took off his jacket even though it was raining. Defendant was

placed in handcuffs. The officers conducted a pat search for safety reasons.

During this non-consensual search, Defendant told the officers he had a knife in

one of his pockets. Wallace pulled out the knife as well as a scale. Officer Brown

pulled out a handful of cash (about $1,000) and a wallet. (DE 68: 88-92; 4-ER737-741). Wallace described the scale as a digital scale with apparent residue. In

Wallace’s opinion, such a scale is typical with drug cases and he has seen such

scales mostly with larger quantities of drugs. A digital scale is used for measuring

15

the weights and quantity of drugs for repackaging and resale. (DE 68: 92-93; 4ER-741-742). Wallace testified that walking by Defendant’s car he saw a dog in

the passenger seat and some backpacks and a random assortment of things in the

back. Wallace could not remember seeing any tools. Wallace accompanied the car

as it was towed for a search pursuant to a search warrant. (DE 68: 93-94; 4-ER742-743). Wallace testified Defendant was arrested for resisting at the scene. He

was not arrested on anything else. (DE 68: 110-111; 4-ER-759-760). The incident

lasted about five to six minutes. (DE 68: 123; 4-ER-772). All six officers at the

scene had their guns drawn. (DE 68: 124; 4-ER-773). After argument, the court

asked for supplemental briefing by the parties. (DE 68: 147: 4-ER-796).

The parties filed supplemental briefings. (DE 69; DE 74; 5-ER-; 5-ER-).

The magistrate judge recommended denial of the motion to suppress in a report

and recommendation. (DE 79; 1-ER-101). The defense filed an objection (DE 82).

The magistrate judge entered a final report and recommendation denying the

motion to suppress. (DE 83; 1-ER-53). The defense filed objections to the final

report and recommendation (DE 123; 5-ER-952) and moved to supplement the

record and reopen the evidence. (DE 124; 5-ER-940). The court granted the

motion to supplement the record and reopen the evidence to the extent that

Defendant would be allowed to testify. (DE 139).

16

Thereafter, the magistrate judge conducted a second evidentiary hearing. At

this hearing, Defendant testified. Defendant stated the reason he was at 5810

North Rocky Mountain Court on August 7, 2018, was to talk to his friend, Derek,

about Derek’s contact with a girl. (DE 149: 5-6; 4-ER-802-803). Defendant

arrived at around 2AM and spoke with Derek. Derek told him he had to go

someplace and asked Defendant to wait for him. While waiting, Defendant fell

asleep in his car. (DE 149: 6-7; 4-ER-803-804). Defendant woke up around 11:30.

He was cold so he started his car. Derek had not come back. Defendant decided to

leave. As he pulled forward, Defendant saw a police officer’s car by the dumpster.

At that point, Defendant saw Off. Poegler come out from behind the dumpster.

Defendant turned on his headlights. Officer Wallace pulls forward and hit his car

causing it to go backward. Defendant’s car started to roll downward. He lowered

his window and asked Off. Wallace why he had hit his car. Off. Wallace stepped

out of his car and told Defendant he was in a stolen vehicle. Defendant put his car

in reverse and Wallace pulled forward so that the cars were now bumper to

bumper. Defendant saw Off. Poegler pointing the gun at his windshield. (DE 149:

7-9; 4-ER-804-806). Defendant explained there was no place for him to go. (DE

149: 13; 4-ER-810). Defendant’s car had backed up against a fence. (DE 149: 16;

4-ER-813). At that point, Off. Poegler came around the back of the car and

pointed the gun directly at Defendant’s face. Meanwhile, Off. Wallace was telling

17

Defendant to get out of the car. Defendant told the officers they were violating his

rights and wanted a lawyer. Defendant testified that Poegler called him by name,

telling Defendant: “Michael, get out of the car.” (DE 149: 17; 4-ER-814).

Defendant recalled that during the conversation with the officers, they started

saying the truck was the stolen vehicle. Defendant protested he had nothing to do

with the truck. The officers threatened him they were going to shoot him if he did

not get out of the car. Defendant told the officers they had no right to order him

out of his car. Eventually, however, Defendant did get out of his car after another

officer spoke with him respectfully and told him they just wanted to talk to him.

(DE 149: 18-19; 4-ER-815-816). As soon as he got out of the car, Defendant told

the officers he had a pocketknife in his right pocket. The officers immediately

removed the knife. Defendant was taken to the other side of the car and the

officers conducted a pat search. Defendant was placed in handcuffs as soon as he

got out of the car. (DE 149: 19-20; 4-ER-816-817). Defendant told the officers

they could not go into his pockets. The officers ignored him. After they took the

items out of his pockets, the police placed Defendant in a patrol car. (DE 149: 2324; 4-ER-820-821). One of the officers told Defendant he was not being arrested.

Rather, some people wanted to talk to him. (DE 149: 25-26; 4-ER-822-823).

Defendant was taken to the police station. He was told the police were

impounding his car and he was being arrested for resisting. (DE 149: 26; 4-ER18

823). Defendant admitted he had tools in his car. Defendant did custom audio

electronics. The drills he had were not in plain sight. (DE 149: 29: 4-ER-826).

The drills were behind the passenger seat inside a tote bag which was covered with

bags. (DE 149: 30-31; 4-ER-827-828); (DE 149: 32-33; 4-ER-829-830); (DE 149:

34-35; 4-ER-831-832). Defendant explained his cell phone fell down when Off.

Wallace impacted his car. (DE 149: 31; 4-ER-828).6 On cross-examination,

Defendant testified his car did not have a front license plate. (DE 149: 41; 4-ER838). Defendant admitted he knew very early on the police wanted him to get out

of his car. He remained in his car for about five minutes. He believed the police

did not have a right to order him out of the car. (DE 149: 41-42; 4-ER-838-839).

The magistrate judge issued a report and recommendation recommending

denial of the motion to suppress on reconsideration. (DE 164; 1-ER-33). The

district court judge conducted a third and final hearing on the motion to suppress.

(DE 390: 2-20; 4-ER-867-885). Subsequently, the district court issued its order

denying the motion to suppress. (DE 197; 1-ER-19). The district court ruled it was

disagreeing with the magistrate judge as to whether there was reasonable suspicion

of criminal activity to justify a stop based on an alleged vehicle theft and as to

when the arrest of Defendant occurred. (DE 197: 3-4; 1-ER-21-22). However, the

Defendant claimed he reached down to get his phone during his interaction

with the police. (DE 149: 55; 4-ER-852). The cell phone fell on the floor by his

seat. (DE 149: 59; 4-ER-856).

6

19

district court concluded the officers had probable cause to arrest Defendant

because his vehicle lacked a front license plate. The district court also agreed with

the magistrate judge’s conclusions regarding the search of Defendant, the plain

view of his car, and the validity of the search warrant. (DE 197: 4; 1-ER-22).

On the issue of reasonable suspicion, the district court noted Defendant’s

proximity to the stolen vehicle had to be taken in context since other vehicles were

also in adjacent parking lots. Additionally, Defendant’s act of slowly pulling

forward and then slowly backing up as the police car moved closer could not

reasonably have been mistaken for evasion or “headlong flight” at the sight of the

police. (DE 197: 6-7; 1-ER-24-25). Under the totality of the circumstances, the

officers had no objective reasonable suspicion that Defendant was involved in

vehicle theft or a “chop shop.” (DE 197: 8; 1-ER-26). The district court also

concluded that the officers’ actions constituted an arrest because when they

undertook those actions Defendant had merely slowly driven his car a few feet and

then slowly backed up a few feet as the police car abruptly approached his bumper.

There was no objectively serious threat to officer safety or uncooperative action by

Defendant. The officers’ action of pinning in Defendant’s car, pulling a firearm

and commanding Defendant to stop constituted an arrest. As such, Defendant was

arrested within one minute of his encounter with the police. (DE 197: 10-11; 1-ER28-29). The district court concluded, however, that Defendant’s missing front

20

license plate provided probable cause for an arrest. The district court noted Off.

Proeger had testified he did not see a front license plate on Defendant’s car as he

approached. Vehicles registered in Alaska are required to display a license plate

on both the front and rear of the vehicle. Failure to attach both plates is a

misdemeanor punishable by up to 90 days in custody and a $500 fine. The district

court ruled that because Alaska has criminalized failing to have a front license

plate, the officers had probable cause to arrest Defendant. (DE 197: 11-13; 1-ER29-31). The defense filed a motion to reconsider the order denying the motion to

suppress. (DE 207; 5-ER-898). The Government filed a response. (DE 211; 5-ER889). The district court entered an order denying the motion to reconsider. (DE

212; 1-ER-10).

ARGUMENT

I.

PETITIONER’S ARREST AND THE ENSUING SEARCH AND

SEIZURE VIOLATED THE FOURTH AMENDMENT AND THE

COURT OF APPEALS CLEARLY ERRED IN UPHOLDING THE

DISTRICT COURT’S RULING DENYING PETITIONER’S

MOTION TO SUPPRESS

Petitioner’s arrest and the ensuing search and seizure violated the Fourth

Amendment and the Court of Appeals clearly erred in affirming the district court’s

orders denying Petitioner’s motion to suppress. The appellate court’s decision

21

should be reversed. Because Petitioner’s motion to suppress is dispositive,

Petitioner’s conviction should be vacated and Petitioner released from custody.

The Fourth Amendment and Probable Cause

The Fourth Amendment protects “[t]he right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and

seizures.” A warrantless arrest of an individual in a public place for a felony, or a

misdemeanor committed in the officer’s presence, is consistent with the Fourth

Amendment if the arrest is supported by probable cause. Maryland v. Pringle, 540

U.S. 366, 370 (2003). Probable cause exists where the facts and circumstances

within the officers’ knowledge and of which they had reasonably trustworthy

information are sufficient in themselves to warrant a man of reasonable caution in

the belief that an offense had been or is being committed. Brinegar v. United

States, 338 U.S. 160, 175 (1949). Searches conducted outside the judicial process

are per se unreasonable under the Fourth Amendment subject only to a few

specifically established and well-delineated exceptions. Katz v. United States, 389

U.S. 347, 357 (1967); Mincey v. Arizona, 437 U.S. 385, 390 (1978). The

government bears the burden to show that a warrantless seizure does not violate the

Fourth Amendment. See Vale v. Louisiana, 399 U.S. 30, 34 (1970); Mincey v.

Arizona, supra, 437 U.S. at 390-391 (1978). An initial seizure cannot be justified

by information obtained as a result of that seizure. Probable cause must exist from

22

facts and circumstances known to the officers at the moment of arrest. Beck v.

State of Ohio, 379 U.S. 89, 91 (1964); Adams v. Williams, 407 U.S. 143, 148

(1972). The seizure must be justified at its inception. United States v. Sharpe, 470

U.S. 675, 682 (1985). A seizure begins when all the circumstances surrounding

the incident are such that a reasonable person would have believed that he was not

free to leave. INS v. Delgado, 466 U.S. 210, 215 (1984).

The Ninth Circuit found that the district court did not err in ruling that

Delpriore’s arrest was supported by probable cause. The Court of Appeals

explained that when Delpriore was stopped in 2018, the Alaska Division of Motor

Vehicles was required by law to issue two license plates to each registered

passenger vehicle one of which was required to be displayed on the front of the

automobile and the other on the rear. The failure to display license plates in the

manner delineated under Alaska law is classified as a misdemeanor. The Court of

Appeals noted Delpriore was driving out of the parking lot with the intention of

entering the public roadway. Off. Proegler saw that Delpriore’s vehicle was

missing a front license plate. Based on the foregoing, the circumstances of the stop

gave rise to a sufficient probability that Delpriore violated, or was attempting to

violate, Alaska statute, which is all that is required under the probable cause

standard. The Court of Appeals concluded, therefore, the stop of Delpriore’s car,

23

his arrest, and the subsequent searches and seizures were all supported by probable

cause. (App. 2-4).

Lack of Probable Cause

An analysis of the facts in this case does not support the district’s court

finding of probable cause and the Court of Appeals clearly erred in upholding the

district court’s ruling. The officers were dispatched in Anchorage regarding a

complaint by a woman that one of her neighbors was spray-painting cars in the

driveway and that people who appeared to be on drugs would bring cars to her

neighbor who would spray-paint them. Based on the information relayed, Officer

Proegler believed someone had been altering potentially stolen vehicles. However,

the Government presented no evidence to support any of the allegations made in

the complaint. In fact, the call reported a male spray-painting vehicles in the

driveway of 5810 and there were multiple pit bulls roaming around unrestrained.

There was no indication Defendant was involved in the spray-painting or that he

matched any description of the male in the call. Defendant was just in the

“proximity” of the vehicles. The record shows the call did not give a description

of a Mustang and there was no information that the Mustang was associated with

any of the apartment units or any of the vehicles. The record shows there is no

indication that Defendant was driving toward the officers. Rather, Defendant

moved forward only a short distance. It was Off. Wallace who approached

24

Defendant’s vehicle with his patrol car. Wallace activated his lights. Off. Proegler

drew his handgun to guard and commanded Defendant to stop. Proegler pulled his

gun and demanded Defendant to stop before Defendant backed up from Officer

Wallace. There was no “dangerousness” exhibited by Defendant or anyone else at

the scene. Defendant’s vehicle was blocked in by Off. Wallace and he was not

going anywhere. Within minutes, other officers arrived on the scene. Altogether

five or six officers showed up. Not only were Proegler and Wallace armed with

handguns, but Proegler displayed a 40mm impact weapon to potentially shatter

Defendant’s driver’s side window. Officer Hughes testified all the officers at the

scene deployed lethal and non-lethal weapons. Most of the officers were pointing

their guns at Defendant.

The Court of Appeals agreed that probable cause arose since Defendant’s

vehicle did not have a visible front license plate. It should be noted Defendant was

not even ticketed for failure to have a front license plate. The Court of Appeals

relied on Atwater v. City of Lago-Vista, 532 U.S. 318 (2001), which noted that

when an officer has probable cause that an individual has committed even a very

minor criminal offense in his presence, he may, without violating the Fourth

Amendment, arrest the offender. Id., at 354. (App. A: 3-4).

First, it is questionable whether there was probable cause to believe there

was a violation of Alaska Statute §28.10.171. Off. Proegler testified the front plate

25

was not visible, not that it did not exist. (DE 68: 9-10; 4-ER-658-659; DE 68: 17;

4-ER-666). Indeed, Defendant was neither ticketed nor arrested for lack of front

license plate or for overly tinted windows. Rather, Defendant was handcuffed for

being a suspect for vehicle theft and arrested for obstruction. (DE 68: 42: DE 68:

43-44; 4-ER-691; 4-ER-692-693). As Officer Wallace cogently testified: “I was

detaining him [Defendant] as a possible suspect in the stolen car… in relation to

the stolen car.” (DE 68: 81; 4-ER-730). He further testified: “…[O]ur objective is

to detain the driver for identification purposes and to further our investigations as

to whether or not – what their relation is to the stolen vehicle.” (DE 68: 82-83; 4ER-731-732). Second, the Atwater case is distinguishable. In Atwater, the

defendant was actually arrested on the seatbelt violations observed by the arresting

officer. See also Whren v. United States, 517 U.S. 806, 808 (1996)(officer stopped

the defendant’s car based on traffic violations). See also Virginia v. Moore, 553

U.S. 164, 166 (2008)(defendant arrested for traffic misdemeanor). The front

license plate issue was clearly used as an after-the-fact justification for the illegal

stop. Indeed, the lack of a front license plate appears nowhere on the search

warrant affidavit rendition of facts. (DE 45-1:1-4; 5-ER-1014-1017).

Lack of Front License Plate-Not A Misdemeanor

The Ninth Circuit cited Alaska Statute §28.10.171(a)-(b) and Hamilton v.

State, 59 P.3d 760, 765 (Alaska Ct.App. 2002), to conclude that failure to display

26

license plates in the manner prescribed is classified as a misdemeanor under

Alaska law. (App. A: 3). In a footnote, the Ninth Circuit found that although

Petitioner argued that the Alaska Supreme Court and the local Anchorage

Municipal Code treated the failure to display a front license plate as a nonarrestable offense, a state’s decision to regulate arrests for particular crimes does

not alter the scope of the Fourth Amendment’s protections, citing Virginia v.

Moore, 553 U.S. 164, 173-176 (2008). (App. A: 3, n. 3).

In his testimony, Off. Proelger candidly admitted that failure to have a front

license plate was not an arrestable offense. (DE 68: 38; 4-ER-687). Proegler stated

that failure to display a license plate is a municipal offense which is not arrestable.

(DE 68: 39; DE 68: 41; DE 68: 42; 4-ER-688; 4-ER-690; 4-ER-691). Defendant

was handcuffed for being a suspect for vehicle theft and arrested for obstruction.

(DE 68: 42; DE 68: 43-44; 4-ER-691; 4-ER-692-693). When questioned by the

magistrate judge, the officer repeated that failure to have a front license plate was

not an arrestable offense. (DE 68: 39; 4-ER-688). Off. Kollin Wallace testified

Defendant was arrested for resisting at the scene. He was not arrested for anything

else. (DE 68: 110-111; 4-ER-759-760).

In Hamilton, supra, a police officer noted two vehicles, a snow grader and a

sedan, driving away from a murder scene. The officer wanted to record the

sedan’s license plate number but he was unable to see the plate. Other officers

27

began to follow the sedan. One of the officers got behind the sedan and noticed the

license plate was covered with snow making it unreadable. After the sedan was

stopped, the police brushed away the snow covering the plate. The officer

approached the driver’s side and noticed that the driver’s hands were covered with

blood. The appellate court ruled that Alaska Stat. §28.10.171(b), requires that

drivers maintain their license plates in a location and condition so as to be clearly

legible. A violation of this section is a misdemeanor. The court concluded that the

officers had probable cause to stop the vehicle. Hamilton, supra at 765. The court

in Hamilton dealt with subsection (b) of the statute, not subsection (a), which is the

section on which the district court relied in its decision. In any event, the court in

Hamilton rested its decision on an alternative basis: the legality of the stop was

justified as part of the police investigation of the murder. Id., at 766-767. This

holding was without regard to Alaska Stat. §28.10.171(b). Id., at 767. In Hamilton,

the facts involved a rear license plate which was obscured, not the failure to have a

front license plate.

The court in Hamilton did not address the impact of the Uniform Minor

Offense Table (UMOT), which treats violations of Alaska Stat. §28.10.171 as a

minor (non-arrestable) offense. UMOT is available at

https://public.courts.alaska.gov/web/scheduled/docs/UMOT_Title28.pdf. The

UMOT makes clear that improper display of plates is not an offense that carries

28

jail time, rather, it is punishable by either a $75 or $300 fine. (DE 74: 3-4; ER.:

pp.). Further, the Alaska Supreme Court has issued a Vehicle and Traffic Offenses

Booklet, Version A, and a Vehicle and Traffic Offenses Booklet, Version B. In

Version A, the Court lists Alaska Stat. §28.10.171(b) as an infraction at page 9.

https://public.courts.alaska.gov/web/forms/docs/pub-131.pdf. (Version A). The

Court makes clear that defendants do not have a right to a jury or to a courtappointed lawyer for traffic infractions. (Version A, p. 3). Version B refers to the

minor offenses listed in UMOT (p. 7) and likewise lists Alaska Stat. §28.10.171(b)

as an infraction. (p. 27). https://public.courts.alaska.gov/web/forms/docs/pub132.pdf. (Version B).7 There is no Fourth Amendment exception for a search

incident to citation. See Knowles v. Iowa, 525 U.S. 113, 118, 119 S.Ct. 484, 142

L.Ed.2d 492 (1998). The district court referred to the statute in isolation without

regard to how the statute is being, or was intended to be, enforced. Both the

district court and the Court of Appeals disregarded the Alaska Supreme Court’s

conclusion that lack of a front license plate was an infraction. At a very minimum,

UMOT and the Alaska Vehicle and Traffic Offenses Booklets A and B create an

ambiguity in the law. This Court has made clear that any ambiguity or confusion

In addition, the Alaska Supreme Court has adopted Rules for Minor

Offenses, which makes direct reference to the Uniform Table of Minor Offenses

maintained by the court system. See Rule 3, Alaska Rules of Minor Offense

Procedure.

7

29

in the law should be interpreted in a defendant’s favor. Liparota v. United States,

471 U.S. 419, 427, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985); Skilling v. United

States, 561 U.S. 358, 410-411, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010). In this

respect, any ambiguity could have been easily dispelled by certifying the question

to the Alaska Supreme Court. The appellate court did not make use of the readily

available procedure in Rule 407, Alaska Rules of Appellate Procedure, which

permits the Alaska Supreme Court to answer questions of law certified to it by a

federal court of appeals.

More importantly, nowhere does Alaska Stat. §28.10.171 state that violation

of the statute is a misdemeanor. The Court of Appeals referred to Alaska Statute

§28.90.010(a)-(b) in determining the offense in this matter was a misdemeanor.

Alaska Stat. §28.90.010, states in subsection (a) that other law may declare a

provision of the title a felony or an infraction. Subsection (c): “Unless otherwise

specified by law a person convicted of a violation of a regulation adopted under

this title, or a municipal ordinance regulating vehicles or traffic when the

municipal ordinance does not correspond to a provision of this title, is guilty of an

infraction and is punishable by a fine not to exceed $300.” Further, subsection (d)

makes clear that an infraction is not considered a criminal offense. Anchorage

Municipal Code (AMC) §9.30.155 addresses the failure to display license plates

and categorizes the offense as a non-criminal infraction. It is therefore apparent

30

that Defendant’s case fell under subsections (c) and (d) of Alaska Statute

§28.90.010, not subsections (a) and (b) as noted by the Court of Appeals.

In this case, there was no evidence that the officers had probable cause to

believe Defendant intended to commit the offense outlined in Alaska Stat.

§28.10.171 by driving out of the parking lot. The district court premised its

decision on what the officers surmised Defendant was going to do. The court’s

conclusion was plainly erroneous because a court should not consider the

subjective thought process of law enforcement officers when assessing the

existence of probable cause. See Devenpeck v. Alford, 543 U.S. 146, 153 (2004).

Thus, the Court of Appeals clearly erred in upholding the district court’s

conclusion based on the subjective thought process of the officers.

A plain reading of Alaska Stat. §28.10.171 shows that the two-plate

requirement applies only when two registration plates are issued for a vehicle. In

this case, the officers did not testify, the Government did not prove, and the district

court did not find, that two registration plates were issued for Defendant’s vehicle

thereby triggering the requirement that plates be affixed to both the front and back

of the vehicle. Consequently, the officers did not have probable cause to believe

that a criminal offense has been or is being committed as provided by Alaska Stat.

§28.10.171. Officer Proegler’s testimony that he did not see a front license plate

on Defendant’s vehicle, without more, did not satisfy the statute’s requirements.

31

He did not have probable cause to arrest Defendant under the statute. The

Government did not meet its burden to show that a warrantless seizure did not

violate the Fourth Amendment. See Vale v. Louisiana, supra, 399 U.S. at 34;

Mincey v. Arizona, supra, 437 U.S. at 390-391 (1978).

As previously noted, Alaska Statute §28.10.171 is considered a minor

offense (non-arrestable) under the Uniform Minor Offense Table. (UMOT) and

both Versions A and B, Vehicle and Traffic Offenses Booklet. The offense is

listed as an infraction. The City of Anchorage municipal ordinance regarding

violations of failure to display a license plate is an infraction. Anchorage

Municipal Code (AMC) §9.52.030. Anchorage Municipal Code (AMC) §9.30.155

addresses the failure to display license plates and categorizes the offense as a noncriminal infraction. This explains why Off. Proegler testified it was a nonarrestable offense. (DE 68: 39; 4-ER-688). The appellate panel noted in a footnote

that although Petitioner argued that the Alaska Supreme Court and the local

Anchorage Municipal Code treated the failure to display a front license plate as a

non-arrestable offense, a state’s decision to regulate arrests for particular crimes

does not alter the scope of the Fourth Amendment’s protections, citing Virginia v.

Moore, 553 U.S. 164, 173-176 (2008). (App. A: 3, n. 3). This conclusion is

premised on the finding that a violation of Alaska Statute §28.10.171 is an

arrestable misdemeanor, as provided in Alaska Statute §28.90.010. The panel

32

decision disregarded Petitioner’s position in this respect because Petitioner’s

argument was not solely limited to Alaska’s regulation of arrests. Rather,

Petitioner also made clear that the statutory framework, as provided in subsections

(c) and (d) of Alaska Statute §28.90.010, rendered Petitioner’s failure to display a

front license plate an infraction which does not subject an offender to arrest. The

panel decision cannot be upheld solely based on Alaska’s regulation of arrests.

Moreover, the holding in Virginia v. Moore, supra, is inapposite since that case

dealt with an arrestable misdemeanor (driving with a suspended license) not an

infraction. Id., 553 U.S. at 166. Moreover, Moore simply rejected state-law arrest

limitations into the Fourth Amendment. Id., at 175-176. There must still be a

determination whether an arrestable crime was committed in the officer’s presence.

In Moore, the defendant was actually arrested for a traffic misdemeanor. Id., at

166. As previously stated, Defendant did not commit a traffic misdemeanor and

was not charged or arrested for one. Alaska Statute §28.10.171, Alaska Statute

§28.90.010, Uniform Minor Offense Table (UMOT), Anchorage Municipal Code

(AMC) §9.30.155 and Anchorage Municipal Code (AMC) §9.52.030.

Outrageous Police Misconduct

The Court of Appeals acknowledged that to determine whether the officers’

actions were reasonable, a court must balance the nature and quality of the

intrusion on the individual’s Fourth Amendment interests against the

33

countervailing governmental interests at stake, quoting Graham v. Connor, 490

U.S. 386, 396 (1989). (App. A: 4). The Ninth Circuit panel agreed with the district

court that Petitioner continued to disobey the officers’ commands and escalated the

situation causing a standoff in the parking lot. Only after Petitioner moved his car

multiple times did an officer’s vehicle make slight contact with Petitioner’s

Mustang. Additionally, while the officers drew their handguns, it was only after

Petitioner’s continued movement of his car and his failure to comply with

instructions. During the standoff, Petitioner not only refused to exit his car but

also frequently moved his hands where the officers could not see what was going

on. The appellate court panel pointed out that no shots were fired and the officers

never deployed the 40mm less-lethal impact launcher that they warned him about.

(App. A: 5).

In Graham, this Court noted that an officer’s evil intentions will not make a

Fourth Amendment violation out of an objectively reasonable use of force, nor will

an officer’s good intentions make an objectively unreasonable use of force

constitutional. Id., at 397. Under Graham, the reasonableness of the officer’s

conduct is based on consideration of three factors: (1) the severity of the crime at

issue; (2) whether the suspect posed a threat to the police or others; and (3)

whether the suspect is fleeing or resisting arrest. Id., at 396. It is noteworthy that

the Court of Appeals did not engage in an analysis of, or weigh, the Graham

34

factors, even though required to do so. Graham, supra at 396. Additionally, the

appellate panel did not mention the district court’s consideration of the officers’

subjective beliefs that Petitioner was engaged in vehicle theft. This is in direct

conflict with this Court’s precedent. A claim of excessive force is analyzed under

the Fourth Amendment’s “objective reasonableness” standard. Scott v. Harris, 550

U.S. 372, 381 (2007); Graham, supra, 490 U.S. at 397.

The record shows the misconduct of the police was truly extraordinary. The

dispatch call on which the police responded involved spray-painting of vehicles,

roaming pit bulls, and a possible “chop-shop.” When police arrived on the scene,

Defendant was sitting quietly in this car on private property. There was no

indication that Defendant was involved in spray-painting or that he matched the

description of the male mentioned in the call. The dispatch did not give a

description of Defendant’s Mustang or any information that the Mustang was

associated with any of the apartment units or any of the vehicles at the scene.

There was absolutely no basis for officers to demand that Defendant exit his car.

The officers, however, did more than make loud demands. Off. Wallace pinned

Defendant’s car with his patrol car, causing damage to Defendant’s vehicle in the

process. Wallace activated his lights. Both officers, Proegler and Wallace pulled

their guns. According to Off. Hughes, the officers had brought out long-guns. Off.

Hughes also stated all police officers arriving on the scene pointed their guns at the

35

Mustang. Off. Wallace confirmed that he and Proegler pointed their guns at

Defendant’s car. Off. Proegler deployed a 40mm impact launcher and threatened

to use it to shatter the Mustang’s window. Immediately after exiting his car,

Defendant was handcuffed. The police conducted a pat down search. Defendant

was placed in a patrol car, leaving his unattended dog in his vehicle. He was taken

away from the scene. All the while, Defendant insisted his rights were being

violated. The police ignored his complaints. Even the district court noted that the

officers’ methods of arresting Defendant were “somewhat aggressive.” The facts

show the police were engaged in 1) making loud demands; 2) pinning Defendant’s

car with a patrol car; 3) causing damage to Defendant’s car; 4) pulling firearms by

not one but five or six officers; 5) threatening to use a glass shattering device; 6)

handcuffing and searching Defendant; and 7) transporting Defendant from the

scene leaving his unattended dog behind.

The Court of Appeals pointed out that Petitioner moved his hands where the

officers could not see what was going on. However, Off. Hughes was asked if he

could see Defendant while he was still in the vehicle and he answered, “Yes.” (4ER-697). Officer Wallace also testified he could see the driver when he was facing

him. (4-ER-730).

The sole basis for the officers’ approach to Petitioner’s car and their

demands that he exit the car was suspicion that Petitioner was involved in auto

36

theft. However, there was no reasonable basis to believe that Defendant had

anything to do with vehicle theft. In fact, the district court so found in its earlier

order. (DE 197: 6; DE 197: 10; 1-ER-24; 1-ER-28). The Court of Appeals agreed

with the district court that Defendant escalated the situation by refusing to obey the

officers’ commands. However, the record shows that the officers’ use of force was

not in any way justified since Defendant neither posed an immediate threat to the

officers’ safety nor actively resisted the officers by headlong flight at the officers’

approach. The district court, in fact, made such findings in its earlier order. (DE

197: 6-7; DE 197: 10; 1-ER-24-25; 1-ER-28). Further, there is no indication in the

record that Defendant posed a threat to the officers or that he had access to any

weapons. See, e.g., Gant v. Arizona, 556 U.S. 332, 346-347 (2009)(citing Michigan

v. Long, 463 U.S. 1032, 1049 (1983)(an officer may search a vehicle’s passenger

compartment when he has reasonable suspicion that the individual is dangerous

and might access the vehicle to gain immediate control of weapons). Defendant

was arrested by the officers once they took the actions of pinning his car and

making demands for Defendant to exit his car at gunpoint. The district court

found: “There was no objectively serious threat to officer safety or uncooperative

action by Mr. Delpriore; nor was there any reasonable suspicion of vehicle theft or

a violent crime, and thus the officers’ actions of pinning the vehicle, pulling a

37

firearm to guard position, and commanding Mr. Delpriore to stop constituted an

arrest of Mr. Delpriore.” (DE 197: 10-11; 1-ER-28-29).

The Exclusionary Rule and Fruit of the Poisonous Tree

In Nix v. United States, 467 U.S. 431, 442-443 (1984), this Court explained

that the exclusionary rule is needed to deter police misconduct. The facts in this

case amply justify the full application of the exclusionary rule to the evidence

seized in this case. The “fruit of the poisonous tree” doctrine compels suppression

in this case. Where evidence is obtained from an unlawful search or seizure, the

exclusionary rule renders inadmissible both primary evidence obtained as a direct

result of an illegal search and seizure and evidence later discovered and found to

be derivative of an illegality, known as fruit of the poisonous tree. See Utah v.

Strieff, 579 U.S. 232, 237 (2016)(quoting Segura v. United States, 468 U.S. 796,

804 (1984)); Wong Sun v. United States, 371 U.S. 471, 488 (1963).

The Government has the burden to show that the evidence is not “the fruit of

the poisonous tree.” See Brown v. Illinois, 422 U.S. 590, 604 (1975). All the

evidence was obtained as a direct result of an illegal search and seizure following

an unlawful arrest. Consequently, the district court should have granted the motion

to suppress as the evidence was a “fruit of the poisonous tree.” The Court of

Appeals clearly erred in affirming the district court’s order denying Petitioner’s

motion to suppress.

38

CONCLUSION

This petition presents an ideal opportunity for this Court to clarify issues

concerning the appropriate reach and applicability of the protections guaranteed by

the Fourth Amendment. There exist conflicts with decisions of this Court on these

issues which only this Court can resolve.

WHEREFORE, MICHAEL ANGELO DELPRIORE, respectfully prays that

this Court issue its Writ of Certiorari to the United States Court of Appeals for the

Ninth Circuit.

Respectfully submitted this 15th day of May, 2025.

s/ J. Rafael Rodriguez

J. RAFAEL RODRÍGUEZ

FLA. BAR NO. 0302007

39

CERTIFICATE OF SERVICE

I HEREBY CERTIFY, pursuant to Rule 29.5, Rules of Supreme Court, that

a true and correct copy of Petitioner's Petition for Writ of Certiorari was mailed on

this 15th day of May, 2025, to the Solicitor General of the United States,

Department of Justice, 950 Pennsylvania Avenue, N.W., Washington, D.C. 205300001.

LAW OFFICES OF

J. RAFAEL RODRÍGUEZ

Attorney for Petitioner

Michael Angelo Delpriore

6367 Bird Road

Miami, Florida 33155

(305) 667-4445

(305) 667-4118 (FAX)

jrafrod@bellsouth.net

s/ J. Rafael Rodriguez

J. RAFAEL RODRÍGUEZ

FLA. BAR NO. 0302007

40

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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