Petition for Writ of Certiorari — Mark Todd Minor, Petitioner v. Florida

No.

IN THE SUPREME COURT OF THE UNITED STATES

MARK TODD MINOR, PETITIONER,

v.

STATE OF FLORIDA, RESPONDENT.

_____________

ON PETITION FOR A WRIT OF CERTIORARI TO

THE FOURTH DISTRICT COURT OF APPEAL OF FLORIDA

_____________

PETITION FOR A WRIT OF CERTIORARI

DANIEL EISINGER

Public Defender

Gary Lee Caldwell

Assistant Public Defender

Counsel of Record

Office of the Public Defender

Fifteenth Judicial Circuit of Florida

421Third Street

West Palm Beach, FL 33401

(561) 355–7600

gcaldwel@pd15.org

jcwalsh@pd15.org

appeals@pd15.org

QUESTIONS PRESENTED

1. In what circumstances is a search warrant invalid because

it erroneously describes the place to be searched?

2. Does the private party search doctrine apply where the

“search” is made by a computer?

3. Does a state court defendant charged with a felony have the

right to trial by a twelve-member of jury under the Sixth

Amendment?

i

RELATED PROCEEDINGS

Fifteenth Judicial Circuit of Florida:

State v. Minor, 50–2021–CF–001670–AXXX-MB

(December 1, 2023)

Fourth District Court of Appeal of Florida:

Minor v. State, 4D2023–3142 (March 6, 2025)

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED.............................................................. i

RELATED PROCEEDINGS ............................................................ ii

TABLE OF AUTHORITIES ............................................................. v

OPINION BELOW .......................................................................... 1

JURISDICTION ............................................................................. 2

CONSTITUTIONAL AND STATUTORY PROVISIONS ........................ 2

STATEMENT OF THE CASE .......................................................... 4

The affidavit and warrant ..................................................................... 4

The erroneous description of the place to be searched .................... 4

The search of attached images .......................................................... 5

The motion to suppress and the hearing ............................................. 6

The erroneous description of the place to be searched. ................... 6

The judge’s order ............................................................... 8

The search of the attached images .................................................... 9

The trial ................................................................................................ 12

The appeal ............................................................................................ 14

REASONS FOR GRANTING THE PETITION .................................. 16

iii

I. The state court erred in denying the motion to suppress

because the warrant did not particulary describe the place to be

searched. ................................................................................. 16

II. The detective violated the Fourth Amendment by opening the

attachments without a warrant. ............................................... 22

III. The reasoning of Williams v. Florida has been rejected, and

the case should be overruled. ................................................... 26

CONCLUSION ............................................................................ 38

INDEX TO APPENDICES

A. District Court’s Decision ......................................................... 1a

B. Order Denying Rehearing ....................................................... 2a

C. Trial Court Order ................................................................... 3a

D. Search Warrant Affidavit and Application .............................. 13a

E. Search Warrant .................................................................... 44a

F. Motion for Twelve-Member Jury ............................................ 49a

G. Initial Brief Excerpts ............................................................ 54a

H. Reply Brief Excerpts ............................................................. 72a

iv

TABLE OF AUTHORITIES

Cases

Apodaca v. Oregon, 406 U.S. 404 (1972) ...................................... 29

Ballew v. Georgia, 435 U.S. 223 (1978).................................. 32, 33

Burch v. Louisiana, 441 U.S. 130 (1979) ...................................... 28

Data Lease Fin. Corp. v. Barad, 291 So. 2d 608 (Fla. 1974) .......... 15

Duncan v. Louisiana, 391 U.S. 145 (1968) ................................... 28

Florida Fertilizer & Mfg. Co. v. Boswell, 34 So. 241 (Fla. 1903) ...... 35

Gibson v. State, 16 Fla. 291 (1877) .............................................. 35

J.B. v. State, 705 So. 2d 1376 (Fla. 1998) .................................... 15

Jackson v. State, 926 So. 2d 1262 (Fla. 2006) ................................ 2

Mallet v. State, 280 So. 3d 1091 (Fla. 2019) ................................... 2

Maryland v. Garrison, 480 U.S. 79 (1987) .............................. 18, 20

Maxwell v. Dow, 176 U.S. 581 (1900) .......................................... 27

Pagidipati v. Vyas, 353 So. 3d 1204 (Fla. 2d DCA 2022) ............... 16

Patton v. United States, 281 U.S. 276 (1930) ................................ 27

Ramos v. Louisiana, 590 U. S. 83 (2020).......................... 29, 30, 31

Thompson v. Utah, 170 U.S. 343 (1898) ................................. 26, 27

United States v. Abdalla, 972 F.3d 838 (6th Cir. 2020) ................. 20

United States v. Jacobsen, 466 U.S. 109 (1984)...................... 23, 25

Walter v. United States, 447 U.S. 649 (1980) .......................... 22, 25

Williams v. Florida, 399 U.S. 78 (1970) ................................ passim

Statutes

§ 913.10, Fla. Stat. ....................................................................... 3

Ch. 3010, § 6, Laws of Fla. (1877) ............................................... 35

v

Constitutional Provisions

Fla. Const. art. I, § 22 ................................................................... 3

U.S. Const. amend. VI ......................................................... passim

U.S. Const. amend. XIV .......................................................... 3, 13

vi

IN THE SUPREME COURT OF THE UNITED STATES

_____________

NO.

MARK TODD MINOR, PETITIONER,

V.

STATE OF FLORIDA, RESPONDENT.

_____________

ON PETITION FOR A WRIT OF CERTIORARI TO

THE FOURTH DISTRICT COURT OF APPEAL OF FLORIDA

_____________

PETITION FOR A WRIT OF CERTIORARI

_____________

Mark Todd Minor respectfully petitions for a writ of certiorari

to review the judgment of the Fourth District Court of Appeal of

Florida in this case.

OPINION BELOW

The decision of Florida’s Fourth District Court of Appeal is

reported as Minor v. State, 406 So. 3d 226 (Fla. 4th DCA 2025)

(table). A copy is in the appendix. 1a.

1

JURISDICTION

Florida’s Fourth District Court of Appeal affirmed Petitioner’s

convictions and sentences without written opinion on March 6,

2025. 1a. The court denied Petitioner’s motion for rehearing, written

opinion and certification to the state supreme court on March 24,

2025. 2a.

The Florida Supreme Court is “a court of limited jurisdiction,”

Mallet v. State, 280 So. 3d 1091, 1092 (Fla. 2019) (citation omitted),

Specifically, it has no jurisdiction to review district court of appeal

decisions entered without written opinion. Jackson v. State, 926 So.

2d 1262, 1266 (Fla. 2006). Hence, Petitioner could not seek review

in that court. This Court has jurisdiction under 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS

The Fourth Amendment

The Fourth Amendment provides: “The right of the people to

be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause, supported by Oath

or affirmation, and particularly describing the place to be searched,

and the persons or things to be seized.”

2

The Sixth Amendment

The Sixth Amendment provides: “In all criminal prosecutions,

the accused shall enjoy the right to a speedy and public trial, by an

impartial jury … .”

The Fourteenth Amendment

Section 1

… . No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of

life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal

protection of the laws.

U.S. Const. Amend. XIV.

Article I, section 22 of the Florida Constitution

Trial by jury.—The right of trial by jury shall be secure to

all and remain inviolate. The qualifications and the

number of jurors, not fewer than six, shall be fixed by

law.

Art. I, § 22, Fla. Const.

Section 913.10, Florida Statutes

Number of jurors.—Twelve persons shall constitute a jury

to try all capital cases, and six persons shall constitute a

jury to try all other criminal cases.

§ 913.10, Fla. Stat.

3

STATEMENT OF THE CASE

In February 2021, a SWAT team executed a search warrant on

Petitioner’s family home in Greenacres Florida. Officers seized

Petitioner’s work phone and a desktop computer in the bedroom of

Petitioner and his wife. Petitioner was taken into custody and

interrogated. Evidence resulting from the search formed the basis of

Petitioner’s prosecution and conviction on charges of possessing or

viewing child pornography.

The affidavit and warrant

The erroneous description of the place to be searched

The warrant affidavit and the warrant itself were prepared by

Palm Beach County Sheriff’s Detective Brian Pherson. In the

affidavit, he asked for a warrant to search Petitioner’s home, and

contained a photograph of a house. 13a. It gave directions to reach

the house by driving more than a mile east from the sheriff’s

substation, and identified the house as “light green in color with a

gray shingle roof,” with a white front door and a specific house

number on the concrete facing the driveway and on a black

mailbox, and said, “This is a complete description of the premises

desired to be searched.” 13a–14a.

4

The warrant said there was probable cause to search the

address listed in the affidavit, and it had the same photograph as

the affidavit. 44a. But the warrant gave directions to go over two

miles south the sheriff’s substation to reach a different house. 45a.

The warrant stated: “The building is grey stone and tan with a

shingle roof. The numerical ‘[four digit number different from

Petitioner’s]’ is posted in black lettering affixed above the front

screen door to the residence. This is a complete description of the

premises desired to be searched.” 45a (emphasis added).

The search of attached images

Pherson said in the affidavit that he received a cyber tip from

the National Center for Missing and Exploited Children ( NCMEC)

that Facebook had reported an account associated with Petitioner’s

name had been used to upload nine images of apparent child

pornography. 17a.

The affidavit said this chart “is primarily used when the

provider detects child pornography by an automated system, like

Microsoft’s PhotoDNA, to confirm known child pornography. In such

a case, the system keeps a data base of hash values that

correspond to images previously identified as child pornography by

5

the criteria listed in the chart.” 19a. The hash can also be used to

compare with hashes of other files to match different copies of the

same image. Ibid. It also said: “When the automated system detects

such a hash value, it automatically forwards the information to

NCMEC.” Ibid.

Pherson wrote that Facebook and NCMEC reported nine files

of child pornography, and he viewed the files after downloading the

cyper tip report and confirmed they contained child pornography.

Ibid. He similarly opened and viewed files after receiving a second

cyber tip from NCMEC. 26a.

Pherson said he confirmed Petitioner’s identity by investigating

phone and email records and then conducting surveillance of

Petitioner’s house. 27a–28a.

The motion to suppress and the hearing

Petitioner filed an amended motion to suppress all evidence

obtained as a result of the search warrant, including Petitioner’s

police statement.

The erroneous description of the place to be searched.

The motion contended that the warrant did not state with

particularity the place to be searched and instead inaccurately gave

6

directions to the residence several miles from Petitioner’s house. R

312–17.

It said Pherson briefed the SWAT team, but was not present

when they executed the warrant at Petitioner’s residence, and an

officer with the search warrant in hand would not have been led to

the Petitioner’s home to the exclusion of any other residence R 316–

17.

The court held an evidentiary hearing at which the defense

introduced Google Maps documents showing how far apart the two

houses were. R 1145, 1148, 777–78.

At the hearing, Pherson was the only witness. He was asked

how it happened that the warrant contained a description of the

other house, and replied:

I made a mistake while composing both the affidavit and

the search warrant with the directionals. Because usually

in these sort of circumstances we use templates — or

what they call go-bys - and I forgot to copy and paste the

correct directionals from the affidavit to the search

warrant. So there’s two different types of directionals

from the affidavit and the search warrant.

R 802–03.

Once he had the warrant, he developed an ops plan, a plan

that gives information “about the address, the individuals that may

7

reside in the house, their criminal history, and a brief synopsis of

my investigation.” R 804.

He said the ops plan included aerial Google maps of the

residence, he briefed the SWAT team and everyone knew which

residence was the target, and they received a copy of the warrant

and the application. R 807. Normally a scout is sent to the

residence ahead of the SWAT team. R 807. The briefing was at a

location not near the residence. R 827.

In the briefing, Pherson did not talk about the directions to the

residence, and he did not lead the SWAT team there. R 827–28. The

SWAT team went there on their own, then contacted Pherson and

said they were there. R 828. By the time he arrived, the SWAT team

had already removed the occupants from the home, and the search

warrant was underway. R 828.

Pherson agreed that if the SWAT team followed the direction in

the warrant it would not have arrived at Petitioner’s address. R 830.

The judge’s order

The court denied the motion to suppress in a written order.

3a–12a. It wrote as to the description of the place to be searched:

8

The Fourth Amendment of the United States Constitution

and Article I, Section 12 of the Florida Constitution

require a warrant to “particularly describe the place or

places to be searched. Historically, the purpose of this

requirement was to prevent the use of general warrants

and wideranging exploratory searches.” Bennett v. State,

150 So. 3d 842, 844 (Fla.4th DCA 2014) (citing Maryland

v. Garrison, 480 U.S. 79, 84 (1987)). See also State v.

Leveque, 530 So. 2d 512, 513 (Fla. 4th DCA 1988). The

incorrect address and description on page two of the

search warrant in the premises description was not

sufficient to invalidate the warrant. “Independent

knowledge of the premises by an officer executing a

search warrant, where that knowledge was obtained from

prior surveillance of the premises, may be considered in

assessing whether the warrant's description of the

premises is sufficiently particular.” Bennett, at 846. See

State v. Houser, 364 So. 2d 823, 824 (Fla. 2d DCA 1978)

(citing State v. Gallo, 279 So. 2d 71 (Fla. 2d DCA 1973) in

which the address was incorrect however, the District

Court held “that this mistake did not render the search

warrant invalid. The description of the residence was

sufficient to lead and indeed did lead the officers directly

to the house to be searched.”)) Further, “[a] residence

may be described with reference to its occupants, see

State v. Gallo, 279 So. 2d 71 (Fla. 2d DCA 1973); see

also, United States v. Hassell, 427 F.2d 348 (6th Cir.

1970), and a prior or continuing surveillance of the

premises may be considered in connection with the

warrant description of the place to be searched.” Carr v.

State, 529 So. 2d 805, 806 (Fla. 1st DCA 1988). “An

inaccuracy in the warrant, such as an incorrect address

or apartment number, does not invalidate the warrant if

the place to be searched is otherwise sufficiently

identified in the warrant.” Id.

10a.

The search of the attached images

9

Petitioner’s amended motion contended the warrant affidavit

was based on information received via a cyber tip from NCMEC,

which had received a tip from Facebook, and the personnel of

neither NCMEC nor Facebook actually viewed or verified the images

were indeed images of sexual performance by a child. R 313.

Pherson viewed the images and based the warrant affidavit on his

having personally viewed the images. R 313. Petitioner contended

Pherson violated the Fourth Amendment by viewing the attached

images without a warrant. R 320-21.

At the suppression hearing, Pherson confirmed he received a

cyber tip from NCMEC, which reported that it had received a cyber

tip from Facebook that Petitioner’s account had been used to access

child pornography. R 784-88.

A cyber tip is based on a hash value, a series of letters or

numbers that uniquely identifies a specific file. R 786-87. Hash

values “are used for companies to not actually have to have an inperson identification of said file. It’s usually kept in a sort of — like

a record or some sort of database where when a file is uploaded to

any sort of their platforms it can be instantly flagged and a report

can be generated to NCMEC.” R 787. NCMEC keeps a log of files

10

with their hash values in which they know they’ve been identified as

child pornography. R 787. Any time one of those files with that

unique identifier hash value is uploaded, it automatically becomes

what’s known as a hash match. R 787.

Under this system, files are automatically sent to NCMEC and

from there to law enforcement without any private party search:

“Essentially [the hash values] are used for companies to not

actually have to have an in-person identification of said file. It’s

usually kept in a sort of — like a record or some sort of database

where when a file is uploaded to any sort of their platforms it can be

instantly flagged and a report can be generated to NCMEC.” R 787.

Shortly after the initial cyber tip, he got another cyber tip from

NCMEC with basically the same information. R 794-95.

After receiving the cyber tip, Pherson subpoenaed Petitioner’s

email accounts and Sprint records. R 791-92.

The cyber tips had the reported images attached to them, and

Pherson opened the attachments to determine they were child

pornography. R 796-97.

The tips were based on a hash match, and the cyber tips did

not tick the box showing whether anyone at Facebook or NCMEC

11

had actually viewed the suspect files. R 813. Pherson’s did not

know whether, between him, Facebook and NCMEC, he was the

first person to actually look at the attached images. R 813.

Defense counsel directed the court to this issue at the

suppression hearing, pointing out that the amended motion

included “Roman numeral III — which is that the search of the

NCMEC images — or the images in the tip violated the Fourth

Amendment.” R 780. She argued that “without a warrant he can

only go so far in a search in violation of Mr. Minor’s privacy as a

private entity has already done. We have no evidence whatsoever

that a private entity already did that so Detective Pherson can’t do it

either.” R 839. The prosecutor argued Pherson did not “exceed the

scope of what was previously done. The suspicious nature of the

package, as they described, has already been noted. So what he’s

doing is not a separate search.” R 851

The judge’s order denying the motion to suppress did not

address the issue concerning the detective’s warrantless act of

opening and viewing the attachments.

The trial

Before trial, Petitioner filed a written motion arguing he was

12

entitled to a 12-member jury under the Sixth and Fourteenth

Amendments. R 498–502. The defense argued the motion when the

case came up for trial, and the court denied the motion and said

that Petitioner preserved the issue for appeal. ST 6–8. Counsel later

again raised the issue, and the court again refused to allow a 12member jury. T 20–21.

The trial evidence showed that the SWAT team came to

Petitioner’s home, where officers seized a desktop computer and

Petitioner’s work cell phone from the bedroom shared by Petitioner

and his wife. Child pornography was found on the computer and

phone, and officers recorded a statement made by Petitioner while

in custody. The prosecution also presented a recorded phone

conversation between Petitioner and his wife. Based on the

testimony of Petitioner and his wife, the defense contended that the

pornography could have been downloaded by any of several adults

living at the house, as well as the drug addict friends of Petitioner’s

daughter. Petitioner testified he was unaware of the child

pornography on the desktop and the phone.

The jury found Petitioner guilty of 48 counts of child

pornography concerning items on the desktop, and not guilty five

13

counts concerning items on the phone. R 547–73.

The court entered judgment and concurrent sentences of

640.5 months in prison on each count on December 1, 2023, R

710-14.

The appeal

Petitioner sought review in Florida’s Fourth District Court of

Appeal. He contended that the trial court erred in denying the

motion to suppress because the warrant did not comply with the

Fourth Amendment’s requirement that “no Warrants shall issue,

but upon probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the persons or

things to be seized.” Amend. IV, U.S. Const. 54a–60a. The attorney

general argued the warrant was sufficient to guide the officers to

the place to be searched, and added a brief claim that the officers

acted in good faith. In his reply brief, Petitioner disputed that the

good faith exception could not apply here because the warrant was

so facially deficient that the officers could not presume it to be

valid, and that the error was caused by the officer himself rather

than by the magistrate. 72a–83a.

As a separate point, Petitioner contended Pherson violated the

14

Fourth Amendment when, without a warrant, he opened the

attachments forwarded to him by NCMEC in order to determine

whether they contained child pornography. 61a–66a.

The attorney general argued the issue was not preserved for

appeal because the trial judge did not specifically address the issue

in its order denying the motion to suppress, and it argued on the

merits that the detective’s act of opening the attachments did not

exceed the scope of a search made by Facebook, a private entity.

Petitioner replied that the issue was preserved because counsel

addressed the issue in the amended motion to suppress and drew

the issue to the court’s attention at the hearing, and, by denying

the motion the judge necessarily ruled against Petitioner on this

issue. 84a–85a. In this regard, Petitioner cited such cases as Data

Lease Fin. Corp. v. Barad, 291 So. 2d 608, 611 (Fla. 1974) (holding

that, although the judge did not expressly rule on the claim of

waiver and estoppel he did generally rule against the petitioner, so

that it must be presumed that the judge did reject petitioner’s

claim), J.B. v. State, 705 So. 2d 1376, 1378 (Fla. 1998). (holding a

party preserves an issue by bringing the issue to the judge’s

attention and “provid[ing] the judge an opportunity to respond to

15

the objection”), and Pagidipati v. Vyas, 353 So. 3d 1204, 1212 n.3

(Fla. 2d DCA 2022) (“Although it did not expressly address the

issue, the trial court appears to have agreed, as it ruled on the

merits of the motion despite Mr. Vyas’s pending challenge to

standing.”). Ibid.

On the merits, Petitioner argued that the record did not show

a private party search preceded Pherson’s act of opening the

attachments. 86a–89a.

Petitioner also argued on appeal that the trial court erred in

refusing to afford him a twelve-member jury under the Sixth

Amendment. 67a–71a.

The district court of appeal affirmed the conviction and

sentence without opinion, 1a, and denied Petitioner’s motion for

rehearing and certification to the state supreme court. 2a. Petitioner

now seeks review in this Court.

REASONS FOR GRANTING THE PETITION

I. THE STATE COURT ERRED IN DENYING THE MOTION

TO SUPPRESS BECAUSE THE WARRANT DID NOT

PARTICULARY DESCRIBE THE PLACE TO BE

SEARCHED.

The Constitution requires a high level of care in the issuance

16

of search warrants. The Fourth Amendment provides: “no Warrants

shall issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be searched,

and the persons or things to be seized.” Amend. IV, U.S. Const.

One need not be a scholar to observe that the warrant in this

case failed to comply with the Constitution.

The affidavit had the address of Petitioner’s home and

accurately described it as light green with a shingle roof with a

white front door and a specific four-digit house number on the

concrete facing the driveway and on a black mailbox, and gave

accurate directions to reach it by driving more than a mile east from

the sheriff’s substation. 13a–14a.

The warrant said there was probable cause that there was

contraband at Petitioner’s address and contained a photograph of

the place. 44a. But it specifically described the other house as “the

premises desired to be searched” by giving directions to go more

than two miles south from the substation, and continued:

The residence is approximately 108 feet on the left side of

the street, 3rd house on the left. The building is grey

stone and tan with a shingle roof. The numerical “[four

digit house number different from Petitioner’s]” is posted

in black lettering affixed above the front screen door to

17

the residence. This is a complete description of the

premises desired to be searched.

R 1140 (emphasis added).

Anyone following this description would never have gotten to

Petitioner’s home.

The Court addressed a erroneous description of the place to be

searched in Maryland v. Garrison, 480 U.S. 79 (1987), which

involved the execution of a search warrant authorizing the search of

Lawrence McWebb and “the premises known as 2036 Park Avenue

third floor apartment” in Baltimore. Id. at 80. The officers were

unaware that there were two third floor apartments, one occupied

by McWebb and another by Garrison. Ibid. When officers arrived,

they found McWebb outside and used his key to enter the building

and open the locked door at the third floor stairwell. Id. at 81.

Entering the third floor vestibule, they found Garrison in the

hallway and two open doors, one to Garrison’s apartment and one

to McWebb’s. Ibid. They did not realize there were two apartments

until after they entered Garrison’s apartment and found heroin and

other contraband. Ibid.

In these circumstances, the Court held that the warrant and

18

its execution complied with the particularity requirement of the

Fourth Amendment. It wrote that, although the warrant turned in

hindsight out to be “broader than appropriate because it was based

on the mistaken belief that there was only one apartment on the

third floor of the building at 2036 Park Avenue,” id. at 85, the

question was whether that factual mistake invalidated the warrant.

The Court wrote that the validity of the warrant could not be

challenged on the basis of the facts that emerged after it was

issued, and that its validity had to be “assessed on the basis of the

information that the officers disclosed, or had a duty to discover

and to disclose, to the issuing Magistrate.” Ibid. The Court wrote

further that the officers reasonably executed the warrant because

they went to the place described in the warrant and were not aware

that there were two separate apartments. Id. at 87. As to this point,

the Court noted that the result would have been different if they

had known or should have known that fact beforehand:

If the officers had known, or should have known, that the

third floor contained two apartments before they entered

the living quarters on the third floor, and thus had been

aware of the error in the warrant, they would have been

obligated to limit their search to McWebb’s apartment.

Moreover, as the officers recognized, they were required

to discontinue the search of respondent’s apartment as

19

soon as they discovered that there were two separate

units on the third floor and therefore were put on notice

of the risk that they might be in a unit erroneously

included within the terms of the warrant. The officers’

conduct and the limits of the search were based on the

information available as the search proceeded. While the

purposes justifying a police search strictly limit the

permissible extent of the search, the Court has also

recognized the need to allow some latitude for honest

mistakes that are made by officers in the dangerous and

difficult process of making arrests and executing search

warrants.

Id. at 86–87 (footnote omitted).

Under Garrison, the warrant in the present case was invalid.

The gross inaccuracy in the identification of the place to be

searched was readily apparent to anyone reading the warrant. To

repeat, no one following the “complete description of the premises

desired to be searched” in the warrant would have gone to

Petitioner’s home.

The present case may be compared to United States v. Abdalla,

972 F.3d 838 (6th Cir. 2020), which was cited by the attorney

general below. In that case, the warrant would lead an officer

unerringly to the right place and it was executed by an officer who

was familiar with the place.

In Abdalla, as at bar, the warrant listed both the correct

20

address and an incorrect address Unlike at bar, however, the

warrant in Abdalla accompanied the correct address with detailed

“step-by-step directions along with a detailed description of

Abdalla’s residence. So the warrant’s singular incorrect address

posed almost no chance of a mistaken search.” Id. 972 F.3d at 842.

Also unlike at bar, the agent who prepared the affidavit led officers

directly to Abdalla’s house, and “an executing officer’s knowledge

may be a curing factor.” Id. at 843 , 846-47. These facts were

crucial to the court’s decision:

All in all, the warrant (1) provided detailed directions to

Abdalla’s New Hope Road address, (2) described a “white

double wide trailer with a green front porch and a black

shingle roof,” along with an American flag on the front

porch and an “auto detail sign” in the driveway, and (3)

identified the correct address and county, except for one

sentence on the final page. (R. 20-1, Search Warrant,

Page ID # 57, 59.) It is nearly unfathomable, given those

particular identifiers and Agent Gooch’s familiarity with

the residence, that officers would have arrived at an

incorrect address and then found a residence so

resembling the warrant’s description that they would

have performed a mistaken search. So we are unpersuaded by Abdalla’s claim that the warrant failed to

describe his residence with particularly and granted

officers overly broad authority to search multiple

residences.

Id. at 847.

In Petitioner’s case, by contrast, the warrant (1) provided

21

detailed directions to the other residence — miles from Petitioner’s

home, R 1140; (2) gave a detailed description of the other residence

as the place to be searched, R 1140; (3) merely cited Petitioner’s

address with a photograph without detailed directions or a detailed

description, R 1139; and (4) was not executed by the detective who

investigated the case and prepared the affidavit and warrant. R 828.

In this case, there was an utter failure to comply with the

Fourth Amendment.

It would be appropriate for the Court to grant certiorari review

in this case in order the consider the important Fourth Amendment

issues it raises.

II. THE DETECTIVE VIOLATED THE FOURTH AMENDMENT BY OPENING THE ATTACHMENTS WITHOUT A

WARRANT.

“It has, of course, been settled since Burdeau v. McDowell, 256

U.S. 465, that a wrongful search or seizure conducted by a private

party does not violate the Fourth Amendment and that such private

wrongdoing does not deprive the government of the right to use

evidence that it has acquired lawfully.” Walter v. United States, 447

U.S. 649, 656 (1980). On the other hand, the Fourth Amendment

does come into play if a governmental search exceeds the scope of a

22

prior private party search. Id. at 659.

In Walter, a private party’s employees opened packages and

found they contained film boxes. The employees “examined the

boxes, on one side of which were suggestive drawings, and on the

other were explicit descriptions of the contents. One employee

opened one or two of the boxes, and attempted without success to

view portions of the film by holding it up to the light.” Id. at 651–52.

The employees called the FBI, and FBI agents then viewed the films

without obtaining a warrant. Id. at 652. In the opinion for the Court

by Justice Stevens with Justice Stewart concurring, it was held that

the act of viewing the films exceeded the scope of the private party

search. Id. at 658–59. Justice Marshall concurred in the judgment,

and, in a concurrence joined by Justice Brennan, Justice White

wrote that he agreed that “the Government’s warrantless projection

of the films constituted a search that infringed petitioners’ Fourth

Amendment interests despite the fact that the Government had

acquired the films from a private party.” Id. at 660.

Subsequently, in United States v. Jacobsen, 466 U.S. 109

(1984), employees of a shipping company inspected a damaged box

and found inside it a tube contaning zip-lock bags which

23

themselves contained a white powder. Returning the bags to the

tube and the tube to the box, they called DEA. A DEA agent opened

the bags, removed a trace of the powder and performed a field test

positive for cocaine. Id. at 111–12.

The Court held that the agent’s act of removing the bags did

not exceed the scope of the private party search, which had already

infringed on the owner’s privacy interests. Id. at 120–22. It then

wrote that the field test “could disclose only one fact previously

unknown to the agent—whether or not a suspicious white powder

was cocaine. It could tell him nothing more, not even whether the

substance was sugar or talcum powder.” Id. at 122. It concluded

that a “test that merely discloses whether or not a particular

substance is cocaine does not compromise any legitimate interest in

privacy,” so that there the field test did not violate the Fourth

Amendment. Id. at 123–24.

In the present case, there was a plain violation of the Fourth

Amendment. The evidence was that software concluded that the

items had a hash value on a computer list of contraband

pornography.

Pherson said the hash values “are used for companies to not

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actually have to have an in-person identification of said file. It’s

usually kept in a sort of — like a record or some sort of database

where when a file is uploaded to any sort of their platforms it can be

instantly flagged and a report can be generated to NCMEC.” R 787.

The hash values are thus like the external covers of the film

boxes in Walter. Just as in Walter, where the private party did not

actually open the boxes, so did no private party actually inspect the

attachments here. There was no private party search such as to

allow Pherson’s act of opening and viewing the contents.

Further, unlike the field test in Jacobsen, the act of viewing

the images would do more than merely reveal whether they were

contraband. While the field test could not reveal anything else

about the white powder — “not even whether the substance was

sugar or talcum powder” — viewing the images would reveal their

actual content, such as whether they were private family

photographs or images of letters to the editor. Opening the

attachments was a complete intrusion into Petitioner’s privacy

interests, and this illegal search formed the basis for the search

warrant leading to the evidence on which the prosecution case

rested. In these circumstances, the state court erred in denying the

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motion to suppress.

III. THE REASONING OF WILLIAMS v. FLORIDA HAS

BEEN REJECTED, AND THE CASE SHOULD BE

OVERRULED.

In Thompson v. Utah, 170 U.S. 343 (1898), the Court

considered “whether the jury referred to in the original constitution

and in the sixth amendment is a jury constituted, as it was at

common law, of twelve persons, neither more nor less,” and

concluded that “[t]his question must be answered in the

affirmative.” Id. at 349. It noted that since the time of Magna Carta,

the word “jury” had been understood to mean a body of twelve. Id.

at 349–50. Because that understanding had been accepted since

1215, the Court reasoned, “[i]t must” have been “that the word

‘jury’ ” in the Sixth Amendment was “placed in the constitution of

the United States with reference to [that] meaning affixed to [it].”

Id. at 350.

In addition to the citations as to this point in Thompson, one

may note that Blackstone indicated that the right to a jury of twelve

is even older, and more firmly established, than the unqualified

right to counsel in criminal cases. 4 William Blackstone,

Commentaries on the Laws of England, ch. 27 (“Of Trial and

26

Conviction”). Blackstone traced the right back to the ancient feudal

system of trial by “a tribunal composed of twelve good men and

true,” and wrote that “it is the most transcendent privilege which

any subject can be enjoy or wish for, that he cannot be affected in

his property, his liberty or his person, but by the unanimous

consent of twelve of his neighbours and equals.” 3 Blackstone, ch.

23 (“Of the Trial by Jury”).

After Thompson, the Court continued to cite the basic principle

that the Sixth Amendment requires a twelve-person jury in criminal

cases for another seventy years. In 1900, the Court explained that

“there [could] be no doubt” “[t]hat a jury composed, as at common

law, of twelve jurors was intended by the Sixth Amendment to the

Federal Constitution.” Maxwell v. Dow, 176 U.S. 581, 586 (1900).

Thirty years later, this Court reiterated that it was “not open to

question” that “the phrase ‘trial by jury’ ” in the Constitution

incorporated juries’ “essential elements” as “they were recognized in

this country and England,” including the requirement that they

“consist of twelve men, neither more nor less.” Patton v. United

States, 281 U.S. 276, 288 (1930). And as recently as 1968, the

Court remarked that “by the time our Constitution was written, jury

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trial in criminal cases had been in existence for several centuries

and carried impressive credentials traced by many to Magna Carta,”

such as the necessary inclusion of twelve members. Duncan v.

Louisiana, 391 U.S. 145, 151–152 (1968).

In Williams v. Florida, 399 U.S. 78 (1970), however, the Court

retreated from this line of precedent, holding that trial by a jury of

six does not violate the Sixth Amendment.

Williams recognized that the Framers “may well” have had “the

usual expectation” in drafting the Sixth Amendment “that the jury

would consist of 12” members. Id., 399 U.S. at 98–99. But it

concluded that such “purely historical considerations” were not

dispositive. Id. at 99. Rather, it focused on the “function” that the

jury plays in the Constitution, concluding that the “essential

feature” of a jury is it leaves justice to the “commonsense judgment

of a group of laymen” and thus allows “guilt or innocence” to be

determined via “community participation and [with] shared

responsibility.” Id. at 100–01. It wrote that “currently available

evidence [and] theory” suggested that function could just as easily

be performed with six jurors as with twelve. Id. at 101–102 & n.48;

cf. Burch v. Louisiana, 441 U.S. 130, 137 (1979) (acknowledging

28

that Williams and its progeny “departed from the strictly historical

requirements of jury trial”).

Petitioner submits that Williams is contrary to the history and

precedents discussed above, and cannot be squared with the

subsequent ruling in Ramos v. Louisiana, 590 U. S. 83 (2020), that

the Sixth Amendment’s “trial by an impartial jury” requirement

encompasses what the term “meant at the Sixth Amendment’s

adoption,” id. at 90. That term meant trial by a jury of twelve whose

verdict must be unanimous. As the Court noted in Ramos,

Blackstone recognized that under the common law, “no person

could be found guilty of a serious crime unless ‘the truth of every

accusation . . . should . . . be confirmed by the unanimous suffrage

of twelve of his equals and neighbors[.]” Ibid. (emphasis added). “A

‘verdict, taken from eleven, was no verdict’ at all.” Ibid.

Ramos held that the Sixth Amendment requires a unanimous

verdict to convict a person of a serious offense. In reaching that

conclusion, it overturned Apodaca v. Oregon, 406 U.S. 404 (1972), a

decision that it faulted for “subject[ing] the ancient guarantee of a

unanimous jury verdict to its own functionalist assessment.” 509

U.S. at 100.

29

The reasoning of Ramos undermines the reasoning on which

Williams rests. Ramos rejected the same kind of “cost-benefit

analysis” undertaken in Williams, observing that it is not for the

Court to “distinguish between the historic features of common law

jury trials that (we think) serve ‘important enough functions to

migrate silently into the Sixth Amendment and those that don’t.’”

590 U.S. at 98. The Court wrote that the Sixth Amendment right to

a jury trial must be restored to its original meaning, which included

the right to jury unanimity:

Our real objection here isn’t that the Apodaca plurality’s

cost-benefit analysis was too skimpy. The deeper problem

is that the plurality subjected the ancient guarantee of a

unanimous jury verdict to its own functionalist

assessment in the first place. And Louisiana asks us to

repeat the error today, just replacing Apodaca’s

functionalist assessment with our own updated version.

All this overlooks the fact that, at the time of the Sixth

Amendment’s adoption, the right to trial by jury included

a right to a unanimous verdict. When the American

people chose to enshrine that right in the Constitution,

they weren’t suggesting fruitful topics for future costbenefit analyses. They were seeking to ensure that their

children’s children would enjoy the same hard-won

liberty they enjoyed. As judges, it is not our role to

reassess whether the right to a unanimous jury is

“important enough” to retain. With humility, we must

accept that this right may serve purposes evading our

current notice. We are entrusted to preserve and protect

that liberty, not balance it away aided by no more than

social statistics.

30

Ramos, 590 U.S. at 100 (emphasis in original; footnote omitted).

The same reasoning applies to the historical right to a jury of

twelve: When the People enshrined the jury trial right in the

Constitution, they did not attach a rider that future judges could

adapt it based on latter-day social science views.

Further, even if one were to accept the functionalist logic of

Williams — that the Sixth Amendment is subject to reinterpretation

on the basis of social science — it invites, nay demands, that it be

periodically revisted to determine whether the social science holds

up. And here we encounter a serious problem: it was based on

research that was out of date shortly after the opinion issued.

Williams “f[ou]nd little reason to think” that the goals of the

jury guarantee, which included providing “a fair possibility for

obtaining a representative[] cross-section of the community,” were

“in any meaningful sense less likely to be achieved when the jury

numbers six, than when it numbers 12.” Id. 399 U.S. at 100. It

theorized that “in practice the difference between the 12-man and

the six-man jury in terms of the cross-section of the community

represented seems likely to be negligible.” Id. at 102.

Since Williams, that determination has proven incorrect. This

31

Court acknowledged as much just eight years later in Ballew v.

Georgia, 435 U.S. 223 (1978), when it concluded that the Sixth

Amendment barred the use of a five-person jury. Although Ballew

did not overturn Williams, it observed that empirical studies

conducted in the intervening years highlighted several problems

with its assumptions. For example, Ballew noted that more recent

research showed that (1) “smaller juries are less likely to foster

effective group deliberation,” id. at 233, (2) smaller juries may be

less accurate and cause “increasing inconsistency” in verdict

results, id. at 234, (3) the chance for hung juries decreases with

smaller juries, disproportionally harming the defendant, id. at 236;

and (4) decreasing jury sizes “foretell[] problems … for the

representation of minority groups in the community,” undermining

a jury’s likelihood of being “truly representative of the community,”

id. at 236–37. Moreover, the Ballew Court “admit[ted]” that it “d[id]

not pretend to discern a clear line between six members and five,”

effectively acknowledging that the studies it relied on also cast

doubt on the effectiveness of the six-member jury. Id. at 239; see

also id. at 245–46 (Powell, J.) (agreeing that five-member juries are

unconstitutional, while acknowledging that “the line between five32

and six-member juries is difficult to justify”).

Post-Ballew research has further undermined Williams. As

already noted, Williams itself identified the “function” of the Sixth

Amendment as leaving justice to the “commonsense judgment of a

group of laymen” and thus allowing “guilt or innocence” to be

determined via “community participation and [with] shared

responsibility.” 399 U.S. at 100–01. That function is thwarted by

reducing the number of jurors to six. Smaller juries are perforce

less representative of the community, and they are less consistent

than larger juries. See, e.g., Shamena Anwar, et al., The Impact of

Jury Race In Criminal Trials, 127 Q.J. Of Econ. 1017, 1049 (2012)

(finding that “increasing the number of jurors on the seated jury

would substantially reduce the variability of the trial outcomes,

increase black representation in the jury pool and on seated juries,

and make trial outcomes more equal for white and black

defendants”); Diamond et al., Achieving Diversity on the Jury: Jury

Size and the Peremptory Challenge, 6 J. of Empirical Legal Stud.

425, 427 (Sept. 2009) (“reducing jury size inevitably has a drastic

effect on the representation of minority group members on the

jury”); Higginbotham et al., Better by the Dozen: Bringing Back the

33

Twelve-Person Civil Jury, 104 Judicature 47, 52 (Summer 2020)

(“Larger juries are also more inclusive and more representative of

the community. … In reality, cutting the size of the jury

dramatically increases the chance of excluding minorities.”).

Other important considerations also weigh in favor of the

twelve-member jury. Twelve-member juries deliberate longer, recall

evidence better, and rely less on irrelevant factors during

deliberation. See Smith & Saks, The Case for Overturning Williams

v. Florida and the Six-Person Jury, 60 Fla. L. Rev. 441, 465 (2008).

Minority views are also more likely to be thoroughly expressed

in a larger jury, as “having a large minority helps make the minority

subgroup more influential,” and, unsurprisingly, “the chance of

minority members having allies is greater on a twelve-person jury.”

Smith & Saks, 60 Fla. L. Rev. at 466. Finally, larger juries deliver

more predictable results. In the civil context, for example, “[s]ixperson juries are four times more likely to return extremely high or

low damage awards compared to the average.” Higginbotham et al.,

104 Judicature at 52.

Importantly, the history of Florida’s rule can be traced to the

Jim Crow era. Justice Gorsuch has observed that “[d]uring the Jim

34

Crow era, some States restricted the size of juries and abandoned

the demand for a unanimous verdict as part of a deliberate and

systematic effort to suppress minority voices in public affairs.”

Khorrami v. Arizona, 143 S. Ct. 22, 27 (2022) (Gorsuch, J.,

dissenting from denial of certiorari) (citations omitted). He noted,

however, that Arizona’s law was likely motivated by costs not race.

Id. But Florida’s jury of six did arise in that Jim Crow era of a

“deliberate and systematic effort to suppress minority voices in

public affairs.” Id. The historical background is as follows:

In 1875, the Jury Clause of the 1868 constitution was

amended to provide that the number of jurors “for the trial of

causes in any court may be fixed by law.” See Florida Fertilizer &

Mfg. Co. v. Boswell, 34 So. 241, 241 (Fla. 1903). The common law

rule of a jury of twelve was still kept in Florida while federal troops

remained in the state. There was no provision for a jury of less than

twelve until the Legislature enacted a provision specifying a jury of

six in Chapter 3010, section 6, Laws of Florida (1877). See Gibson v.

State, 16 Fla. 291, 297–98 (1877); Florida Fertilizer, 34 So. at 241.

The Florida Legislature enacted chapter 3010 with the jury-ofsix provision on February 17, 1877. Gibson, 16 Fla. 294. This was

35

less than a month after the last federal troops were withdrawn from

Florida in January 1877. See Jerrell H. Shofner, Reconstruction and

Renewal, 1865–1877, in The History of Florida 273 (Michael

Gannon, ed., first paperback edition 2018) (“there were [no federal

troops] in Florida after 23 January 1877”).

The jury-of-six thus first saw light at the birth of the Jim Crow

era as former Confederates regained power in southern states and

state prosecutors made a concerted effort to prevent blacks from

serving on jurors.

On its face the 1868 constitution extended the franchise to

black men. But the historical context shows that that it was part of

the overall resistance to Reconstruction efforts to protect the rights

of black citizens. The constitution was the product of a remarkable

series of events including a coup in which leaders of the white

southern (or native) faction took possession of the assembly hall in

the middle of the night, excluding Radical Republican delegates

from the proceedings. See Richard L. Hume, Membership of the

Florida Constitutional Convention of 1868: A Case Study of

Republican Factionalism in the Reconstruction South, 51 Fla. Hist. Q.

1, 5–6 (1972); Shofner at 266. A reconciliation was effected as the

36

“outside” whites “united with the majority of the body’s native

whites to frame a constitution designed to continue white

dominance.” Hume at 15.

The purpose of the resulting constitution was spelled out by

Harrison Reed, a leader of the prevailing faction and the first

governor elected under the 1868 constitution, who wrote to Senator

Yulee that the new constitution was constructed to bar blacks from

legislative office: “Under our Constitution the Judiciary & State

officers will be appointed & the apportionment will prevent a negro

legislature.” Hume, 15–16. See also Shofner 266.

Smaller juries and non-unanimous verdicts were part of a Jim

Crow era effort “to suppress minority voices in public affairs.”

Khorrami v. Arizona, 143 S. Ct. 22, 27 (2022) (Gorsuch, J.,

dissenting from denial of certiorari); see also Ramos, 590 U.S. at

126–27 (Kavanaugh, J., concurring) (non-unanimity was enacted

“as one pillar of a comprehensive and brutal program of racist Jim

Crow measures against African-Americans, especially in voting and

jury service.”). The history of Florida’s jury of six arises from the

same historical context.

And this history casts into relief another negative consequence

37

of having small juries: it denies a great number of citizens the

“duty, honor, and privilege of jury service.” Powers v. Ohio, 499 U.S.

400, 415 (1991). Many consider jury service an “amazing and

powerful opportunity and experience—one that will strengthen your

sense of humanity and your own responsibility.” United States

Courts, Juror Experiences.1 Jury service, like civic deliberation in

general, “not only resolves conflicts in a way that yields improved

policy outcomes, it also transforms the participants in the

deliberation in important ways—altering how they think of

themselves and their fellow citizens.” John Gastil & Phillip J.

Weiser, Jury Service as an Invitation to Citizenship: Assessing the

Civic Values of Institutionalized Deliberation, 34 Pol’y Stud. J. 605,

606 (2006).

In view of the foregoing, this Court should grant the petition,

recede from Williams, restore the ancient right to a jury of twelve

and reverse Petitioner’s conviction.

CONCLUSION

The petition for a writ of certiorari should be granted.

1 Available at: https://www.uscourts.gov/services-forms/jury-

service/learn-about-jury-service/juror-experiences

38

Respectfully submitted,

DANIEL EISINGER

Public Defender

GARY LEE CALDWELL

Assistant Public Defender

Counsel of Record

Office of the Public Defender

Fifteenth Judicial Circuit of Florida

421Third Street

West Palm Beach, FL 33401

(561) 355–7600

gcaldwel@pd15.org

jcwalsh@pd15.org

appeals@pd15.org

39