Reply Brief — Mark Todd Minor, Petitioner v. Florida

No. 24-7489

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

_______________________

REPLY IN SUPPORT OF CERTIORARI

_______________________

GARY LEE CALDWELL

DEVI M. RAO

OFFICE OF THE PUBLIC DEFENDER Counsel of Record

FIFTEENTH JUDICIAL CIRCUIT KATHLEEN PLEISS

421 Third Street

RODERICK & SOLANGE

West Palm Beach, FL 33401

MACARTHUR JUSTICE CENTER

(561) 355-7600

501 H Street NE, Suite 275

gcaldwel@pd15.org

Washington, DC 20002

(202) 869-3490

devi.rao@macarthurjustice.org

Counsel for Petitioner

i

TABLE OF CONTENTS

Page(s)

TABLE OF AUTHORITIES....................................... ii

INTRODUCTION ........................................................ 1

I. The Court Should Overrule Williams—It Is In

Grave Tension With Ramos and Centuries of This

Court’s Precedent Recognizing the 12-Person Jury

at Common Law. .................................................... 1

A. Williams Is Egregiously Wrong. ...................... 2

B. Williams Is Inconsistent with Decisions of

This Court Both Before and After It. ............... 7

C. Reliance Interests Do Not Require the Court

to Continue to Stomach Williams. ................... 9

II. This Case Is A Good Vehicle. ............................... 10

III.The Court Should Determine Whether An Officer

Viewing Images Tagged Through “Hash

Matching,” Without a Warrant, Violates the

Fourth Amendment. ............................................ 12

IV. The Warrant Did Not “Particularly Describe” the

Place To Be Searched. .......................................... 15

CONCLUSION .......................................................... 15

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Alleyne v. United States,

570 U.S. 99 (2013) ............................................... 1

Apprendi v. New Jersey,

530 U.S. 466 (2000) ............................................. 7

Arizona v. Fulminante,

499 U.S. 279 (1991) ........................................... 11

Ballew v. Georgia,

435 U.S. 223 (1978) ..................................... 3, 4, 8

Blakely v. Washington,

542 U.S. 296 (2004) ............................................. 7

Cap. Traction Co. v. Hof,

174 U.S. 1 (1899) ................................................. 7

Carpenter v. United States,

585 U.S. 296 (2018) ........................................... 14

Chapman v. California,

386 U.S. 24 (1967) ............................................. 12

Colgrove v. Battin,

413 U.S. 149 (1973) ........................................... 10

Cunningham v. Florida,

144 S. Ct. 1287 (2024) ......................................... 1

Data Lease Fin. Corp. v. Barad,

291 So. 2d 608 (Fla. 1974) ................................ 11

iii

Duncan v. State of La.,

391 U.S. 145 (1968) ............................................. 7

Edwards v. Vannoy,

593 U.S. 255 (2021) ........................................... 10

Erlinger v. United States,

602 U.S. 821 (2024) ..................................... 1, 6, 8

Gideon v. Wainwright,

372 U.S. 335 (1963) ........................................... 11

Guzman v. Flordia,

No. 23-5173 ......................................................... 9

Khorrami v. Arizona,

143 S. Ct. 22 (2022) .................................. 1-5, 7, 9

Maxwell v. Dow,

176 U.S. 581 (1900) ............................................. 7

McCoy v. Louisiana,

584 U.S. 414 (2018) ........................................... 11

McKaskle v. Wiggins,

465 U.S. 168 (1984) ........................................... 11

Morales v. State,

274 So.3d 1213 (Fla. Dist. Ct. App. 2019) ........ 13

Parada v. United States,

No. 25-166 ......................................................... 12

Patton v. United States,

281 U.S. 276 (1930) ............................................. 7

People v. Wilson,

56 Cal. App. 5th 128 (2020) .............................. 13

iv

Ramos v. Louisiana,

590 U.S. 83 (2020) ............................ 1, 2, 5-10, 12

Rassmussen v. United States,

197 U.S. 516 (1905) ............................................. 7

Southern Union Co. v. United States,

567 U.S. 343 (2012) ............................................. 7

Stogner v. California,

539 U.S. 607 (2003) ........................................... 10

Teague v. Lane,

489 U.S. 288 (1989) ........................................... 10

Thompson v. Utah,

170 U.S. 343 (1898) ............................................. 7

United States v. Ackerman,

831 F.3d 1292 (10th Cir. 2016) ......................... 13

United States v. Booker,

543 U.S. 220 (2005) ............................................. 7

United States v. Carpenter,

926 F.3d 313 (6th Cir. 2019), superseded

on other grounds by 788 F. App’x 364

(6th Cir. 2019) ................................................... 14

United States v. Curbelo,

343 F.3d 273 (4th Cir. 2003) ............................. 11

United States v. Gaudin,

515 U.S. 506 (1995) ............................................. 7

United States v. Gonzalez-Lopez,

548 U.S. 140 (2006) ........................................... 11

v

United States v. Haymond,

588 U.S. 634 (2019) ............................................. 8

United States v. Jacobsen,

466 U.S. 109 (1984) ........................................... 13

United States v. Johnson,

117 F.4th 28 (2d Cir. 2024) ........................... 5, 11

United States v. Jones,

565 U.S. 400 (2012) ........................................... 13

United States v. Leon,

468 U.S. 897 (1984) ........................................... 15

United States v. Maher,

120 F.4th 297 (2d. Cir. 2024) ...................... 13, 14

United States v. Miller,

982 F.3d 412 (6th Cir. 2020) ............................. 13

United States v. Reddick,

900 F.3d 636 (5th Cir. 2018) ............................. 13

United States v. Wilson,

13 F.4th 961 (9th Cir. 2021) ....................... 13, 14

Walker v. State,

669 S.W.3d 243 (Ark. Ct. App 2023) ................ 13

Waller v. Georgia,

467 U.S. 39 (1984) ............................................. 11

Walter v. United States,

447 U.S. 649 (1980) ........................................... 14

Webster v. United States,

667 F.3d 826 (7th Cir. 2011) ............................. 11

vi

Williams v. Florida,

399 U.S. 78 (1970) ................................... 1, 2, 3, 5

Other Authorities

CUDDIHY, WILLIAM J., THE FOURTH

AMENDMENT: ORIGINS AND ORIGINAL

MEANING 602-1791 (2009) ................................ 15

Fay et al., Group Discussion as Interactive

Dialogue or as Serial Monologue, 11

Psychol. Sci. 481 (2000) ...................................... 6

Guerra et al., Accuracy of Verdicts Under

Different Jury Sizes and Voting Rules,

28 Sup. Ct. Econ. Rev. 221 (2020) ...................... 6

Mukhopadhaya, Jury Size and the Free

Rider Problem, 19 J. L. Econ. & Org. 23

(2003) ................................................................... 6

Parisi & Luppi, Jury Size and the HungJury Paradox, 42 J. Legal Stud. 399

(2013) ................................................................... 6

Smith, Alisa & Saks, Michael J., The Case

for Overturning Williams v. Florida and

the Six-Person Jury: History, Law, and

Empirical Evidence, 60 FLA. L. REV. 441

(2008) ............................................................... 3, 4

U.S. Const., Amend. IV .......................................... 15

Waller et al., Twelve (Not So) Angry Men,

14 Grp. Processes & Intergrp. Rels. 835

(2011) ................................................................... 6

INTRODUCTION

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

Court turned its back on the original meaning of the

Constitution, centuries of historical practice,” not to

mention a “battery of this Court’s precedents.” Cunningham v. Florida, 144 S. Ct. 1287, 1287 (2024) (Gorsuch, J., dissenting from denial of certiorari);

Khorrami v. Arizona, 143 S. Ct. 22, 25 (2022) (Gorsuch, J., dissenting from denial of certiorari).

Williams cannot be reconciled with Ramos v. Louisiana, 590 U.S. 83 (2020), or more recent decisions

recognizing that “at all times the truth of every accusation against a defendant had to be confirmed by the

unanimous suffrage of twelve of his equals and neighbors.” Erlinger v. United States, 602 U.S. 821, 831

(2024) (emphasis added; cleaned up).

The time has come to overrule Williams.

I.

The Court Should Overrule Williams—It

Is In Grave Tension With Ramos and Centuries of This Court’s Precedent Recognizing the 12-Person Jury at Common Law.

Stare decisis “has never been treated as ‘an inexorable command.’” Ramos, 590 U.S. at 105 (quoting

Pearson v. Callahan, 555 U.S. 223, 233 (2009)). And it

is not “supposed to be the art of methodically ignoring

what everyone knows to be true.” Id. Indeed, the doctrine’s force “is at its nadir in cases concerning procedural rules that implicate fundamental constitutional

protections.” Alleyne v. United States, 570 U.S. 99, 116

n.5 (2013). Each of the stare decisis factors this Court

considers points in favor of overruling Williams. See

Ramos, 590 U.S. at 106 (setting out factors).

(1)

2

A. Williams Is Egregiously Wrong.

1. “Williams was wrong the day it was decided, it

remains wrong today, and it impairs both the integrity of the American criminal justice system and the

liberties of those who come before our Nation’s

courts.” Khorrami, 143 S. Ct. at 23 (Gorsuch, J., dissenting from denial of certiorari).

Williams repeatedly recognized that its decision to

sanction 6-person juries for serious criminal charges

was at odds with the common law and centuries of historical practice, which was well-established by the

time of the Sixth Amendment’s adoption. See, e.g., 399

U.S. at 91 (“[A]t common law the jury did indeed consist of 12.”); see also Amici Br. of ACLU & Rutherford

Inst. 4-10; Amicus Br. of Const’l Accountability Ctr. 612. As Blackstone put it, “no person could be found

guilty of a serious crime unless ‘the truth of every accusation . . . should . . . be confirmed by . . . twelve of

his equals and neighbors.’” Ramos, 590 U.S. at 90

(quoting 4 W. Blackstone, Commentaries on the Laws

of England 343 (1769)). 1

And it was not as if this “original public meaning

was lost to time and only recently recovered.” Id. at

92. Indeed, Williams recognized that, given this historical backdrop, “[t]his Court’s earlier decisions ha[d]

1 Following this common law tradition, the 12-person jury rule

also “applied in the young American States.” Ramos, 590 U.S. at

90. Evidence abounds in early state court decisions and American treatises, Khorrami, 143 S. Ct. at 24 (Gorsuch, J., dissenting

from denial of certiorari), colonial charters, Amicus Br. of Const’l

Accountability Ctr. 8-9, guides for judges, and the writings and

correspondence of both members of the Continental Congress

and the Framers, Amici Br. of ACLU & Rutherford Inst. 8-10.

3

assumed”—again and again, and as early as 1898—

that this 12-person-jury requirement was codified into

the Sixth Amendment. 399 U.S. at 90 (citing caselaw).

And yet—the Court in Williams dismissed this history and precedent. “In doing so, the decision contravened the Sixth Amendment’s original meaning and

hundreds of years of precedent in both common-law

courts and this one.” Khorrami, 143 S. Ct. at 24-25

(Gorsuch, J., dissenting from denial of certiorari).

2. As if that weren’t error enough, when the Williams Court applied its “functional” test, it ruled on

little more than gut instinct, concluding that 6-person

juries would “probably” function as well as a jury of

12. What little data the Court had before it, “it misread or misinterpreted.” Amici Br. of Jury Scholars 5.

And even if Williams’s analysis was not deadwrong from the outset—even on its own terms—its

“functionalist claims have not aged well.” Khorrami,

143 S. Ct. at 26 (Gorsuch, J., dissenting from denial of

certiorari); see also Alisa Smith & Michael J. Saks,

The Case for Overturning Williams v. Florida and the

Six-Person Jury: History, Law, and Empirical Evidence, 60 FLA. L. REV. 441, 458 (2008) (“The Williams

Court’s remarkably inadequate and erroneous analysis has been the subject of comment by scholars in a

multitude of fields—statistics, psychology, sociology,

and political science.”).

Indeed, just eight years after Williams, this Court

in Ballew v. Georgia, 435 U.S. 223 (1978), recognized

several problems with Williams’s empirical assumptions. Ballew noted that “recent empirical data suggest that progressively smaller juries are less likely to

foster effective group deliberation,” id. at 232, “the

4

data now raise doubts about the accuracy of the results achieved by smaller and smaller panels,” id. at

234, that decreasing jury size results in “increasing

inconsistency” in results, id., and that smaller juries

are less likely to include members of minority groups,

and thus threaten to deprive defendants of a fair possibility of obtaining a jury composed of a representative cross-section of the community, id. at 236-37.

Since 1978, the data undermining the Williams

Court’s analysis has only gotten stronger. See

Khorrami, 143 S. Ct. at 26-27 (Gorsuch, J., dissenting

from denial of certiorari) (noting “[a]n array of studies

in the years since Ballew has done more of the same,”

and citing studies). On each of the metrics the Williams Court cared about—the thoroughness of deliberations, representativeness of the community, and

reliability of verdicts—the data indicates that 6-person juries are inferior. See Amicus Br. of Const’l Accountability Ctr. 16-23 (reviewing research); see also

Smith & Saks, supra, at 464-68 (same).

In short, Williams abandoned the “ancient promise” that “the right to trial by jury for serious criminal

offenses meant the right to a trial before 12 members

of the community” and “enshrined in its place bad social science parading as law.” Khorrami, 143 S. Ct. at

27 (Gorsuch, J., dissenting from denial of certiorari).

3. Notably, Florida does not dispute the historical

practice and pre-Williams caselaw discussed above—

nor could it. And it has precious little to say when it

comes to actually defending Williams’s decision to

“turn[] to other than purely historical considerations,”

5

Williams, 399 U.S. at 98, and employ instead a functionalist approach. BIO 14-16. 2 The few arguments

the State does make in favor of the Court holding its

nose and maintaining Williams are unpersuasive.

Florida points to the rejection of James Madison’s

language that would have included the “accustomed

requisites” of the common law in the Sixth Amendment as supposed evidence that the Framers decided

to allow criminal juries of any size. BIO 16. But

“[e]ven Williams acknowledged that th[is] bit of drafting history it cited might just as easily support the opposite inference it drew.” Khorrami, 143 S. Ct. at 25

(Gorsuch, J., dissenting from denial of certiorari); see

also Ramos, 590 U.S. at 97 (noting equal likelihood

“that Senators considered this language surplusage”

because “all this was so plainly included in the promise of a ‘trial by an impartial jury’”). And in Ramos,

this Court explained that “rather than dwelling on

text left on the cutting room floor, we are much better

served by interpreting the language Congress retained and the States ratified.” Id. at 98.

Ramos also dispatches Florida’s resistance to the

conclusion that the Sixth Amendment “codified” the

12-person criminal jury that inhered at common law.

BIO 17. The Court in Ramos declined “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

2 Puzzlingly, Florida does assert that Petitioner “makes no at-

tempt to identify error in [Williams’s] analysis.” BIO 15. That is

demonstrably incorrect. See generally Pet. 26-29.

6

those that don’t.” 590 U.S. at 98; see also Erlinger, 602

U.S. at 830 (features “[i]nher[ent] in that guarantee”).

Florida would distinguish Williams from Apodaca

in unimportant ways, BIO 18, 3 but it has no answer

to the fact that the reasoning and holding of Ramos’s

majority opinion leads inexorably to the conclusion

that Williams should be overruled. Pet. 29-31. That is,

this is not a straight-rerun of the question in Ramos—

whether to overrule an old opinion that rejected a historical Sixth Amendment analysis in favor of a flawed

“functionalist” assessment—since Ramos itself is an

additional (and sufficient) reason to overrule Williams. 4

Finally, Florida asserts there is nothing “nefarious” about the fact that Florida law changed the minimum jury size from 12 to 6 just after the departure of

3 For example, the portion of the Ramos opinion suggesting Apodaca was not “governing precedent,” see BIO 18, was written for

only three members of the Court, and therefore played no role in

the majority’s decision to overrule it. Ramos, 590 U.S. at 101

(Gorsuch, J., joined by Ginsburg, J., and Breyer, J.).

4 Florida’s defense of Williams’s functionalist approach fares no

better. See BIO 21. The “scholarship” it points to is inapposite.

See Fay et al., Group Discussion as Interactive Dialogue or as Serial Monologue, 11 Psychol. Sci. 481, 481 (2000) (studying unconstitutional five-member juries); Waller et al., Twelve (Not So) Angry Men, 14 Grp. Processes & Intergrp. Rels. 835, 839 (2011)

(considering the impact of breaking down a 12-person jury into

four “discussion groups”); Mukhopadhaya, Jury Size and the Free

Rider Problem, 19 J. L. Econ. & Org. 23, 27-43 (2003) (studying

mathematical models, rather than testing actual people/juries);

Parisi & Luppi, Jury Size and the Hung-Jury Paradox, 42 J. Legal Stud. 399, 408 (2013) (same); Guerra et al., Accuracy of Verdicts Under Different Jury Sizes and Voting Rules, 28 Sup. Ct.

Econ. Rev. 221, 232 (2020) (same).

7

federal troops following reconstruction. BIO 24. But

Florida does not dispute that “[d]uring the Jim Crow

era, some States restricted the size of juries . . . as part

of a deliberate and systematic effort to suppress minority voices in public affairs.” Khorrami, 143 S. Ct.

at 27 (Gorsuch, J., dissenting from denial of certiorari); see also Ramos, 590 U.S. at 126-27 (Kavanaugh,

J., concurring in part) (non-unanimity enacted “as one

pillar of a comprehensive and brutal program of racist

Jim Crow measures against African-Americans, especially in voting and jury service”). At any rate, Williams is untenable even if Florida halved its criminal

juries “for benign reasons.” Id. at 99, n.44 (opinion of

the Court).

B. Williams Is Inconsistent with Decisions of

This Court Both Before and After It.

Not only does Williams “sit uneasily” with this

Court’s caselaw going back to 1898, but its rejection of

the Sixth Amendment’s historical 12-person-jury requirement has not “aged . . . gracefully.” Id. at 106-07.

“In all, this Court has commented on the Sixth

Amendment’s [12-person] requirement no fewer than

13 times over more than 120 years.” Id. at 92. 5 Williams is the outlier. It runs counter to “the Court’s

5 See Thompson v. Utah, 170 U.S. 343, 349 (1898); Cap. Traction

Co. v. Hof, 174 U.S. 1, 13 (1899); Maxwell v. Dow, 176 U.S. 581,

586 (1900); Rassmussen v. United States, 197 U.S. 516, 519

(1905); Patton v. United States, 281 U.S. 276, 288 (1930); Duncan

v. State of La., 391 U.S. 145, 151-52 (1968); United States v.

Gaudin, 515 U.S. 506, 510 (1995); Apprendi v. New Jersey, 530

U.S. 466, 477 (2000); Blakely v. Washington, 542 U.S. 296, 301

(2004); United States v. Booker, 543 U.S. 220, 238-39 (2005);

Southern Union Co. v. United States, 567 U.S. 343, 356 (2012);

8

longstanding view that the Sixth Amendment includes a protection against . . . felony guilty verdicts”

by fewer than 12 jurors. Id. at 132 (Thomas, J., concurring).

Indeed, as previously noted, just a few years after

Williams, in Ballew, the Court appeared to back away

from Williams’s functional equivalence test. None of

the opinions applied that test, see Amici Br. of Jury

Scholars 6-7, and the Ballew Court refused to extend

Williams’s logic to 5-person juries because Williams’s

assumptions had been substantially undermined by

the intervening data, 435 U.S. at 232-39. What’s more,

although Ballew did not explicitly overrule Williams,

see BIO 21, it was no ringing endorsement: the Court

did “not pretend to discern a clear line between six

members and five.” Id. at 239; see also id. at 230 (noting “Court’s earlier cases . . . were set to one side”).

Finally, Williams cannot be squared with Ramos.

Pet. 30-31. Ramos re-centered the Sixth Amendment

inquiry when it comes to criminal jury characteristics

as one of “original public meaning,” after the “strange

turn” that the doctrine had taken in the 1970s. 590

U.S. at 92-93. And it recognized that both the common

law and 19th Century precedent from this Court

viewed a 12-person jury as required. Id. at 90-92.

In all, Williams “sanctions the conviction at trial

. . . of some defendants who might not be convicted under the proper constitutional rule.” Id. at 126 (Kavanaugh, J., concurring). This case offers the Court an

important “opportunity to correct” itself “and admit

United States v. Haymond, 588 U.S. 634, 642 (2019); Erlinger,

602 U.S. at 831.

9

what we know the law is and always has been.”

Khorrami, 143 S. Ct. at 27 (Gorsuch, J., dissenting

from denial of certiorari).

C. Reliance Interests Do Not Require the

Court to Continue to Stomach Williams.

Despite Florida’s contention, the reliance interests

here are more modest than in Ramos. BIO 25. True, if

this Court overrules Williams, some individuals with

non-final criminal proceedings will need to be retried.

See Ramos, 590 U.S. at 108 (recognizing states “may

need to retry defendants”). 6 But that is always so with

announced rules of criminal procedure, which “often

affect[] significant numbers of pending cases across

the country.” Id. (providing examples). And this Court

granted certiorari in Ramos despite Louisiana’s claim

that requiring unanimous juries “could . . . upset”

“[t]housands” of criminal cases. Brief for Respondent

at 49, Ramos, 590 U.S. 83 (No. 18-5924.)7

And Florida does not assert the second reliancebased concern in Ramos regarding undermining final

judgments. 590 U.S. at 109. Specifically, the dissent

6 There is some doubt whether the number of criminal convic-

tions currently pending on direct appeal that Florida reports is

correct, since it appears to have been copied directly (along with

most of Florida’s brief on this question) from the Brief in Opposition Florida filed nearly two years ago in Guzman v. Florida,

No. 23-5173. The number may in fact be the same then as now,

but one wonders.

7 If Florida’s statistics are correct, and it has a conviction rate

that is “comparable” to “jurisdictions that use twelve jurors,” BIO

22-23, then it is hard to understand Florida’s expressed concern

regarding the results of any such retrials, BIO 24.

10

in Ramos was apprehensive that retroactive application of jury unanimity “remain[ed] a real possibility,”

because it might be recognized as a “watershed rule”

under Teague v. Lane, 489 U.S. 288, 311 (1989). Ramos, 590 U.S. at 159-60 (Alito, J., dissenting). Since

then, this Court has clarified that there is no watershed exception, and “[n]ew procedural rules do not apply retroactively on federal collateral review.” Edwards v. Vannoy, 593 U.S. 255, 272 (2021). 8

II.

This Case Is A Good Vehicle.

Florida’s only meaningful vehicle argument is that

Petitioner would not benefit from a decision overruling Williams because any error would be harmless.

BIO 26. 9 That is incorrect several times over.

8 Florida’s suggestion that interpreting the Sixth Amendment to

require 12-person juries would require the same change to Seventh Amendment jurisprudence is meritless. BIO 25. Much of the

common law history discussed above is specific to the criminal

jury right. And the Seventh Amendment’s reference to “Suits at

common law”—which this Court has concluded “is not directed to

jury characteristics, such as size, but rather defines the kind of

cases for which jury trial is preserved,” Colgrove v. Battin, 413

U.S. 149, 152 (1973)—may preclude adopting the features of the

common-law jury. Finally, the Sixth Amendment’s protections

might be more robust than the Seventh Amendment’s, since the

former protects “human liberty,” and the latter “property.” Stogner v. California, 539 U.S. 607, 632 (2003).

9 All three issues in this case are preserved, and Florida does not

argue otherwise. See BIO 4 (noting suppression motion on warrant description and officer’s viewing of the images, and arguments on appeal on all three questions presented). To the extent

Florida suggests that a per curiam affirmance by the Florida appellate court is a vehicle problem, it cites no precedent for that

position. BIO 8. Nor is there any merit to the preservation issue

11

Most fundamentally, being criminally tried with

half as many jurors as is constitutionally required is

a structural error, requiring automatic reversal. This

Court has recognized that Sixth Amendment violations that “affect[] the framework within which the

trial proceeds,” as opposed to being “simply an error

in the trial process itself,” are not subject to harmless

error review. Arizona v. Fulminante, 499 U.S. 279,

310 (1991). 10 Indeed, most federal courts have rejected

Florida’s position, concluding that even a jury of 11

requires automatic reversal. See Webster v. United

States, 667 F.3d 826, 833 n.3 (7th Cir. 2011) (collecting

cases from Fourth, Sixth, Ninth, Eleventh, and D.C.

Circuits). 11 That is because the court “simply cannot

know what affect a twelfth juror might have had on

jury deliberations.” United States v. Curbelo, 343 F.3d

273, 281 (4th Cir. 2003). All the more so with the doubling of the jury to its constitutional size.

they argued to that court—and (wisely) don’t explicitly press

here. See Data Lease Fin. Corp. v. Barad, 291 So. 2d 608, 611

(Fla. 1974) (“Where numerous defenses are raised, it is not necessary, although it is certainly preferable, for the trial judge to

rule expressly upon each defense asserted.”).

10 See, e.g., Gideon v. Wainwright, 372 U.S. 335, 345 (1963) (right

to counsel); McKaskle v. Wiggins, 465 U.S. 168 (1984) (right to

self-representation); Waller v. Georgia, 467 U.S. 39, 49 (1984)

(public trial); United States v. Gonzalez-Lopez, 548 U.S. 140, 150

(2006) (choice of counsel); McCoy v. Louisiana, 584 U.S. 414, 427

(2018) (client autonomy, and distinguishing from ineffective assistance jurisprudence).

11 The lone circuit to conclude otherwise based its holding on Williams. United States v. Johnson, 117 F.4th 28, 42 (2d Cir. 2024).

12

But the Court would not need to decide whether

jury-size is structural error; the verdict here would require reversal under any standard. Cf. Ramos, 590

U.S. at 111 (“No one before us suggests that the error

was harmless.”). Petitioner was given a functional life

sentence after being convicted by a jury of 6 of his

peers. Pet. 14 (noting 640.5-month sentence); Pet.

App. 18 (noting Petitioner was born in 1969). 12 After

five hours of deliberation, the jury issued a split decision, finding Petitioner guilty of counts relating to

items found on a desktop computer, but not guilty on

counts relating to items on a phone. R.118-120. This

unusual decision means that the 6-person jury did not

believe Petitioner’s defense relating to the computer:

that the items could have been downloaded by any of

the several adults living at the house, as well as the

drug-addicted friends of Petitioner’s daughter. Pet.

13. There is no way that, with the addition of 6 more

jurors examining the evidence, Florida can “prove beyond a reasonable doubt that the error complained of

did not contribute to the verdict obtained.” Chapman

v. California, 386 U.S. 24 (1967). 13

III.

The Court Should Determine Whether An

Officer Viewing Images Tagged Through

“Hash Matching,” Without a Warrant, Violates the Fourth Amendment.

1. There is a square and acknowledged circuit split

on this question presented. As Florida notes, BIO 1012 Citations to the Pet. App. refer to the PDF pagination.

13 The 12-person-criminal-jury question is also raised by the pe-

tition in Parada v. United States, No. 25-166, in which this Court

has called for a response. At a minimum, this case should be held

pending resolution of that petition.

13

11, both the Fifth and Sixth Circuits have permitted,

under the private search doctrine, warrantless

searches by law enforcement after a company’s software marked a file as potential contraband. United

States v. Reddick, 900 F.3d 636, 639 (5th Cir. 2018);

United States v. Miller, 982 F.3d 412, 420 (6th Cir.

2020). Three state appellate courts have agreed. Morales v. State, 274 So.3d 1213, 1218 (Fla. Dist. Ct. App.

2019); People v. Wilson, 56 Cal. App. 5th 128, 145

(2020); Walker v. State, 669 S.W.3d 243, 255 (Ark. Ct.

App 2023).

But more recently, the Second and Ninth Circuits

have explicitly rejected Reddick and Miller and held

law enforcement’s opening of files flagged by thirdparty tech companies did not fall within the private

search doctrine. United States v. Maher, 120 F.4th

297, 318 (2d. Cir. 2024); United States v. Wilson,

13 F.4th 961, 973 (9th Cir. 2021). While the Tenth Circuit reserved this question in United States v. Ackerman, 831 F.3d 1292, 1306 (10th Cir. 2016), thenJudge Gorsuch’s analysis of a related question was

“entirely consistent” with the reasoning on this side of

the split. Wilson, 13 F.4th at 977. 14

2. Florida’s arguments on the merits are unavailing. Citing United States v. Jacobsen, 466 U.S. 109

14 Additionally, even if within the scope of a private search, the

officer’s viewing of the images was a Fourth Amendment trespass. See Ackerman, 831 F.3d at 1307 (Gorsuch, J.) (noting private search doctrine “uncertain” in light of United States v.

Jones, 565 U.S. 400 (2012)); see also Miller, 982 F.3d at 418 (noting “legitimate” trespass-based Fourth Amendment argument

foreclosed by Jacobsen).

14

(1984), Florida claims that a Facebook employee previously viewing and flagging different files at some

earlier point in time excuses the officer’s warrantless

search of Petitioner’s files. BIO 8-9. 15 But “both Walter

[v. United States, 447 U.S. 649 (1980)] and Jacobsen—

and general Fourth Amendment principles—instruct

that we must specifically focus on the extent of [the]

private search of [the defendant’s] effects, not of other

individuals’ belongings.” Wilson, 13 F.4th at 975.

Florida leans on the hash-matching process. BIO

10-11. But “[e]ven assuming the high reliability of

[the] hash matching technology,” it cannot reveal “the

particulars of the file’s contents.” Maher, 120 F.4th at

315, 318. Visual examination of the images “substantively expanded the information available to law enforcement”; it revealed “exactly what the image” was

and that it was illegal. Wilson, 13 F.4th at 973. 16

15 As a factual matter, it is not clear this is accurate. The officer

stated in the warrant that it was his belief that “historically” a

Facebook employee had viewed the file with the matching hash,

Pet. App. 20, but at the suppression hearing, he admitted that

he did not actually know this to be true, and he could have been

the first person to have actually looked at the images, R.813-14.

16 Florida’s invocation of the good faith exception, BIO 12-13, is

no barrier to review, and this Court would not need to address it,

in answering this important Fourth Amendment question. See,

e.g., Carpenter v. United States, 585 U.S. 296, 321 (2018) (reversing and remanding “for further proceedings consistent with this

opinion”); United States v. Carpenter, 926 F.3d 313, 317 (6th Cir.

2019) (addressing good faith exception on remand), superseded

on other grounds by 788 F. App’x 364, 365 (6th Cir. 2019).

15

IV.

The Warrant Did Not “Particularly Describe” the Place To Be Searched.

Florida does not dispute that the warrant gave directions to an address miles from Petitioner’s home,

and said, “This is a complete description of the premises desired to be searched.” Pet. 18. Nor does it dispute that someone following this “description of the

premises desired to be searched” would never arrive

at Petitioner’s home. Id. This warrant is flatly inconsistent with the Framers’ requirement that a warrant

“particularly describ[e] the place to be searched.” U.S.

Const., Amend. IV; see WILLIAM J. CUDDIHY, THE

FOURTH AMENDMENT: ORIGINS AND ORIGINAL MEANING 602-1791, at 739-42 (2009) (discussing contemporary treatises, statutes and usage).

Florida’s arguments on the merits in attempt to

save this deficient warrant are wrong for the reasons

set out in the Petition. See Pet. 16-21. Its invocation

of the good faith exception fails, because it does not

apply where the warrant is “so facially deficient—i.e.,

in failing to particularize the place to be searched or

the things to be seized—that the executing officers

cannot reasonably presume it to be valid.” United

States v. Leon, 468 U.S. 897, 923 (1984).

CONCLUSION

The petition for a writ of certiorari should be

granted.

16

Respectfully submitted,

DEVI M. RAO

Counsel of Record

KATHLEEN PLEISS

RODERICK & SOLANGE

MACARTHUR JUSTICE CENTER

501 H Street NE, Suite 275

Washington, DC 20002

(202) 869-3490

devi.rao@macarthurjustice.org

GARY LEE CALDWELL

OFFICE OF THE PUBLIC DEFENDER

FIFTEENTH JUDICIAL CIRCUIT

421 Third Street

West Palm Beach, FL 33401

(561) 355-7600

gcaldwel@pd15.org

Counsel for Petitioner

SEPTEMBER 2025