Petition for Writ of Certiorari — Michael Angelo Delpriore, Petitioner v. United States
Supreme Court briefMay 15, 2025
Ask Donna
What actually matters in this document.
Text
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.