Petition for Writ of Certiorari — Timothy Alexander, Petitioner v. New York
Supreme Court briefAug 18, 2025
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IN THE
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Supreme Court, U.S,
FILED
SUPREME COURT OF THE UNITED STATES
AUG 1 8 2025
OFFICE OF THE CLERK
TIMOTHY ALEXANDER - PETITIONER Pro Se
vs.
PEOPLE OF THE STATE OF. NEW YORK - RESPONDENT
ON PETITION FOR WRIT OF CERTIORARI TO
NEW YORK SUPREME COURT, APELLATE DIVISION, SECOND DEPARTMENT
PETITION FOR WRIT OF CERTIORARI'
TIMOTHY ALEXANDER
CLINTON CORECTIONAL FACILITY
P.O. BOX 2001
DANNEMORA, N.Y.
12929
$518) 492 - 2511
QUESTIONS PRESENTED
1. Can inevitable discovery, as set forth by This Court in
Nix V. Williams, be proven through the testimony of a
detective not actively involved in the investigation?
2. Should the exclusionary rule be applied when police violate
a suspect's Constitutional Rights no less than twenty-five
times in one continuous interrogation?
3. Are police free to disregard a suspect's Constitutional
Rights when in pursuit of evidence?
LIST OF PARTIES
All parties appear in the caption of the case on the cover page.
RELATED GASES
People v. Alexander, No. 21/2019, New York State Supreme Court,
Dutchess County. Judgment entered June 28, 2021. (Unpublished)
People v. Alexander, 226 A.D.3d 1042, New York Supreme Court,
Appellate Division, Second Department. Judgment entered
April 24, 2024.
People v. Alexander, 42 N.Y.3d 937, N.Y., New York Court Of
Appeals. Judgment entered August 07, 2024.
People V. Alexander, Slip Copy, 2025 WL 170752, New York Court
Of Appeals. Judgment entered May 29, 2025. (Unpublished).
TABLE OF CONTENTS
TITLE
PAGE NUMBER
QUESTIONS PRESENTED...
.
OPINIONS BELOW
i
1
,
1
....
JURISDICTION
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
2
STATEMENT OF CASE
3>4
•
...........
REASONS FOR GRANTING PETITION
•
4
•
1. Illegal interrogation of Mr. Alexander in violation
of the Fifth Amendment.........................
(a) Threats made by police toward Mr. Alexander's
family
.............. • •
.
9
2. Evidence was obtained as a direct result of the
illegal interrogation, exclusionary rule should
apply. .
............................
I3 .
3. It was error to apply inevitable discovery 3;
exception of the exclusionary rule to evidence
in this case........
.............
16
4. This case is in conflict with precednt established
bv This Court, Circuit Court decisions and other
state court rulings
.............
"
5. Circuit Court-split on inevitable discovery
24
6. Conflict with other state court rulings
25
SUMMATION...
CONCLUSION
................. ..........
29
...................
30
6
INDEX TO APPENDICES
APPENDIX A:
Decision of State Appellate Division
APPENDIX B:
Decision of Trial Court
APPENDIX C:
Decision of State Court of Appeals denying review..
APPENDIX D:
Decision of State Court of Appeals denying
reconsideration
APPENDIX E:
Pre-Trial Omnibus Motion
APPENDIX F:
Summary Statement of Consitutional Rights Violations
submitted on record to trial court
APPENDIX G:
Order from State Appellate Division granting
Forma Pauperis of appeal
TABLE OF AUTHORITIES CITED
PAGE NUMBER
CASES
Boyd v. United States, 116 U,S. 616
30
Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2284(1975)
22-23
Counselman v.Hitchcock, 142 U.S. 547, 12 S.Ct. 195
30
Culombe v. Connecticut, 367 U.S. 568, 577(1961)
10
Davis v. Mississippi, 394 U.S. 721, 727, 89
S.Ct. 1394(1969)
16
Dunaway v. New York, 422 U.S. 200, 99 S.Ct.
2248(1979)
:
3,
16
Elkins v. United States, 364 U.S. 206, 217, 80
S.Ct. 1437(1960)
13, 15
Hayes v. Florida, 470 U.S. 105 S.Ct. 1643(1989)
16
Hudson v. Michigan, 547 U.S. 586(2006)
23
Lynum v. State of Illinois,
372 U.S. 528(1963)
12
Mapp v. Ohio, 367 U.S. 643,
81 S.Ct. 1684(1961)
3.,
Michigan v. Mosley, 423 U.S. 96(1975)
8
Michigan v. Tucker, 417 U.S. 433, 94 S.Ct.
2357(1974)
15
16
I
Miranda v. Arizona, 86 S.Ct. 1602
7, 29-30
Nix v. Williams, 467 U.S. 431(1984)
5,6,21, 23
People v. Aveni, 367 U.S. 568, 577(1961)
10
People v. Huntley, 15 N.Y.2d 72(1965)
3, 16
People v. Savage, 220 A.D. 3d 599(2023)
25-26
People v. Superior Court(Corrbett) , 8 Cal. App.
5th 670(2017)
.27
Rogers v. Richmond, 365 U.S. 534(1961)
12
Smith v. State, 948, P.2d 473(1997)
26
State v. Badgett, 200 Conn. 412, 433, 512 A.2d
160, cert, denied, 479 U.S. 940 107 S.Ct.423(1986)
21
State v. Brown, 331 Conn. 258(2019)
21
State v. Daugherty, 931, S.W.2d 268(1996)
28
State v. Garner, 331 N.C. 491, 417 S.E. 2d 502,
511(1992)
27
State v. Lopez, 78 Hawaii, 43^., 896 P.2d 889(1995)
26
State v. Mitcham, 258 Ariz. 432(2024)
27
State v. Spencer, 268 Conn. 575, 599, 848 A.2d
1183, 543 U.S. 957, 125 S.Ct. 409(2004)
21
United States v. Boatwright, 822 F.2d 864 (9th Cir. 1987) 24
United States V. Calandra, 415 U.S. 338, 347, 94 S.Ct.
613, 619(1974)
15
United
States v. Casteliana, 488 F.2d 65(5th Cir. 1974)
28
UNited
States v. Cherry, 759 F.2d 1196(5th Cir. 1985)
24
United
States v. Conner, 127 F.3d 663(8th Cir. 1997)
24
United
States v. Eng, 971, F,2d 854, 859(2nd Cir. 1992)
21,
24, 25
United
States v. Ford, 22 F.3d 374(lst Cir. 1994)
24,
25
United States
v. Kennedy, 61 F.3d 494(6th Cir. 1995)
United States
v. Langford, 314, F.3d 892(7th Cir. 2002) 24
United States
v. Larson, 127 F.3d 984(10th Cir. 1997)
24
United States
v. Thomas, 955 F. 2d 207(4th Cir1992)
24, 25
United States
v. Virden, 488 F.3d 1317(llth Cir. 2007)
24
24
U.S. v. Massey, 437 F.Supp. 843(1977)
27
U.S. v. Olivares-Rangel, 458 F.3d 1104
15
Utah v. Strieff, 136, S.Ct. 2056(2016)
22
Wong Sun v. United States, 371, U.S. 471, 488, 83 S.Ct.
407, 417(1963)
15
STATUTES AND
RULES
28 U.S.C. §1257(a)
OTHER
5 Wayne R. LaFave Search & Seizure 11.4(a)(3rd ed. 1996)
28
69 YALE L.J. 1669(1960)
15
IN THE
SUPREME COURT OF THE UNITED STATES
PETITION FOR WRIT OF CERTIORARI
Petitioner respectfully prays that a writ of certiorari issue
to review the judgment below.
Cases from state courts;
The opinion of the highest state court to review the merits
appears at Appendix A to the petition and is reported at
People v. Alexander, 226 A.D.3d 1042
The opinion of the New York Supreme Court, Dutchess County
appears at Appendix B to the petition and is unpublished.
JURISDICTION
Cases from state courts;
The date on which the highest state court decided my case was
August 07, 2024.
A copy of that decision .appears at Appendix
C.
A timely motion for reconsideration was thereafter denied
on the following date:
May 29, 2025, and a copy of the order
denying reconsideration appears at Appendix D.
The jurisdiction of this'Court is invoked under 28 U.S. § 1257
(a).
1
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
1.
The Fifth , Amendment, to, the United States Consitution in
pertinent part as follows: "No person... shall be compelled
iniany■crimihal3caseltu?be a witness against himself.."
2.
The Fourth Amendment to the United States Constitution
provides, in relevant part: "The right of the people to
be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not
be violated"
3.
j
The Fourteenth Amendment to the United States Constitution
provides, in relevant part: "...nor shall any State deprive
any person of... liberty...without due process of law."
2
STATEMENT OF CASE
On November 16, 2018, Mr. Alexander was approached outside
his house by detectives of the New York State Police (NYS'B) .
He was informed his ex-wife was found deceased. The detectives
asked Mr. Alexander toaccompany them to the State Police (SP)
barraks and assist them with information about his ex-wife.
Once in the interrogation room the conversation was audio and
video recorded. The interrogation lasted approximately 7 and
one hald to 8 hours without any breaks. Questioning was conducted
by four NYSP detectives. Approximately 5 hours into the
interrogation, Mr. Alexander was administered Miranda warnings
for the first and only time. Mr. Alexander immediately invoked
his Fifth Amendment Right To Remain Silent. The detectives
ignored his invocation of his Rights and continued questioning
him. Mr. Alexander invoked his Right To Remain Silent no less
than twenty-five times. The detectives disregarded his Rights
everytime, pressuring his to talk and answer questions as well
as make threats towards Mr. Alexander’s wife and his three
children. Mr. Alexander eventually made inculpatory statements
including the location of physical evidence. He was then charged
with one count of murder in the second degree, in violation
of New York Penal Law 125.25. Prior to trial defence counsel
filed an omnibus motion (AppendixEE), which in part sought to
have Mr. Alexander’s statements and evidence obtained as a d
direct resulf ofit suppressed under the "excusionary rule" as
"fruit of the poisonous tree". A Mapp/Dunaway/Huntly hearing was
held. In the trial courts decision (Appendix B), the statement
3
was suppressed but the physical evidence was ruled admissible
via the "inevitable discovery':' exception of the "exclusionary1
rule". Mr. Alexander was convicted of the charge above by a
jury trial and sentenced to twenty-five years to life imprisonment,
appealed his conviction arguing among other things that the
trial court erred by applying inevitable discovery to the
physical evidence. The New York Supreme Court, Appellate
Division, Second Department affirmed the conviction. In their
decision (Appendix A), they ruled even though Mr. Alexander's
Fifth Amendment Rights were violated, inevitable discovery
applied to the physical evidence. Mr. Alexander sought review by
the New York Court of Appeals and they denied review (Appendix C)#
On reconsideration the Court of Appeals again denied review
(Appendix D). Mr. Alexanderenow seeks Certiorari relief from
This Court.
REASONS'5 FORSGRANTlN(Si7THEGPETTTT0N
On November 16, 2018, Mr. Alexander was forced to make a
choice, protect himself or protect his wife and infant children.
In this case the police were on a mission to gain information
and evidence from Mr. Alexander. It is clear they planned to
succeed in this mission by whatever means necessary. In the
following arguments, the actions, statements, and threats made
by the police show they knowingly and intentionally violated
Mr. Alexander's Constitutional Rights. This happened no less
than twenty-five times. This is the very misconduct this court
■
4
created the exclusionary rule to deter.
Further argument will show the trial and appellate courts
have misapplied inevitable discovery to the evidence. Their
ruling is in direct conflict with the precedent set by This
Court isdNix v. Williams which is followed by the Circuit Courts
and lower state courts. In thiscaase inevitable discovery was
applied by relying on the testimony of a detective who was not
actively involved in the investigation. At the tinje of the
investigation he had been a detective for no more than three months
and offered no evidence "demonstrating historical facts readily
available for verification or impeachment". His testimony was
speculation based on personal opinion, not facts. If this ruling is
allowed to stand, it will effectively eliminate the preponderance
of evidence standart required to prove inevitable dicovery. This
lowered standard of proof will evicerate the exclusionary rule and
the safeguards it provides the Constitutional Rights under the
Fourth, Fifth, Sixth and Fourteenth Amendments.
This new precedent will have immediate effects on defendants
with open cases awaiting trial or pending appeals, as well as any
future cases because it will completely change the way evidence can
be reviewed when challenged. The effects of this will be significant
because often, state court rulings on evidence cannot be challenged
in a federal habeas corpus, leaving their rulings to set new
precedent. This also encourages future police misconduct. Without
the safeguards of the exclusionary rule, the police will not be
detered from violating a defendant's Constitutional Rights to gain
evidence. The lower courts should not be able to change the long
5
standing precedent set by This Court.
This COurt noted that the "core rational" of the exclusionary
rule is "to deter police from violation of constitutional and
statutory protections." [Nix v. Williams, 467 U.S. 431, 442-43,
104 S.Ct. 2501, 2508, L.Ed.2d 377(1984)]. As stated in Mr. Alexander's
omnibus motion (Appendix E) regarding this case,
The "defence contends that no clearer case of wanton police
violation of a defendant's Fifth Amendment Right To Remain
Silent could be imagined." pg. 33
In this case the police were so focused on gaining evidence
from Mr. Alexander that they intentionally and meliciously disregarded
his Constitutional Rights to achieve their goal. During the
interrogation detectives administered Miranda warnings approximately
5 hours into the interrogation. This is the first and only time
Miranda is administered. Following these warnings, Mr. Alexander
invoked his Fifth Amendment Right To Remain Silent. Yetythe
interrogation continued by four NYSP detectives. The questioning
after warnings are as followed:
Detective: "Having these rights in mind, do you wish to talk to
us still?"
,
Mr. Alexander: "I just don't want to talk anymore. I don't knowvwhat
else to say. I'm so confused. I'm just completely
out of it at the moment. I don't want to talk about
this anymore."
This unequivocal invocation of his Right to Remain Silent was
supposed to be scrupulously honored.
6
^Once warnings have been given, the subsequent procedure is
clear. If the individual indicates in any manner, at any time
prior to or during questioning, that he wishes to remain silent
the interrogation must cease." Miranda y. Arizona, 86, S. Gt.1602.
'
ts
*
-■
■
.
NOTE: The video recorded interrogation as well as transcripts were
made part of the official court record. In the omnibus motion
(Appendix E) a full list of page and line numbers of each time
Mr. Alexander invoked his Rights are listed. It can also be found
in the Summary Statement of Constituional Rights Violation
(Appendix F) which was submitted on the record.
Instead of stopping the interrogation, Mr. Alexander's
invocation was completely ignored:
Detective: "Do you feel guilty?"
Detective: ‘"Do you want an attorney before answering these questions
with us or do you want to answer them now?"
This ±s in effect telling Mr. Alexander, he does not have the
right to remain silent.
Mr. Alexander: "I don't want to answer anything else right now."
This is another unequivocal invocation of the Rights to Remain
Silent, which was supposed to be scrupulously honored. Instead it
was completely ignored and swerved into coercove, guilt laden
conversation as followed:
Detective: "These questions they're asking you, they say you don't
want to talk. I don't know if you want an attorney or
7
not, that’s something you're going to have to tell me,
but help us help your son... that's the fairest thing
I think, and I think we're from the same accord with
that when we're speaking, right?"
Mr. Alexander: "The best thing for my son right now is for me to
go see him."
Detective: "Help is help your son."
Mr. Alexander: "I just don't want to answer anything. I don't want
to talk about anything right now.“I just really
don't. I'm so done. I'm so tired."
A suspect's invocation of his right to remain silent and to
"cut off questioning" must-be "scrupulously honored." Michigan v.
Mosley, 423 U.S. 96, 103-04(1975). Law enforcement is therefore,
prohibited from continuing an interrogation upon a request to stop
and from "persisting in repeated efforts to wear down a suspect's
resistance and make him change his mind." Id. at 105-06.
It is claer that Mr. Alexander was invoking his Right to Remain
Silent and "cut off questioning". Instead of honoring his rights
they presisted in repeated efforts to wear down his resistance and
make him change his mind. They started by making threats that his
son would be placed with somebody in a department other than
family, fhey followed that by telling Mr. Alexander that they knew
he knew what happened to his ex-wife.
Detective: "But we need.to figure this out right now. And you are
the only one that can tell us."
Their persistant pressure on Mr. Alexander began to break down
his mind and cause him to start confusing and mixing up what he
wanted to say versus what they wanted him to say.
Mr. Alexander: "I don't know what information I need to tell you."
8
Detective: "Because I know you and:I know you know."
Mr. Alexander: "I don't know what to tell you."
Detective: "..you just don't what? You got nothing to hide."
Mr. Alexander: "I just don’t want to talk about anythig anymore^
I don't want to talk about this at,all."
Detective: "I know it's a hard thing but we have to'talk about itl"
This is exactly the opposite of what is constitutionally
required of the poice. The interrogation is to be suspended.
Instead, the police tell Mr. Alexander, that he has to talk.
From this point on Mr. Alexander states 19 times, in sum and
substance, that he does not want to talk about anything anymore,
and that he doesn't want to talk to anyone else or about anything
else, and he wants to know how long he is going to continue to sit
in the interrogation room, and he doesn't want to do anything else.
After making continued threats towards Mr. Alexander s family
the detectives tell him to "Take the leap.
These attacks on Mr. Alexander's Consitutional Rights were a
deliberate misconduct by the police to gain information and
evidence to build their case against him.
Threats made by police toward Mr. Alexander's family.
Throughout the cource of the interrogation Mr. Alexander
repeatedly and persistantly expressed his love for his wife,
their twin boys and his eldest son. He expressed these sentiments
between 50-100 times as well as his desire to leave and go see them
and be with them. The police seized this opportunity to attack
and overbear Mr. Alexander's mind and willpower.
9
"The risk is great that the police will accomplish behind
their closed door precisely what the demands of our legal
order forbid: make a suspect.the unwilling collaborator in
establishing his guilt. This they may accomplish not only
with rope and rubber hose, not only by relay questioning
persistently, insistently subjecting a tired mind, but by
subtler devices." See People v. Aveni, 100 A.D.3d 228
(2nd Dept. 2012), quoting, Culombe v. Connecticut, 367 U.S.
568, 577(1961).
In the Aveni case the court found that the detectives coerced
the defendant's confession by deceiving him into believing that.
his girlfriend was alive and implicitly threatening him. with a
homicide charge if he remained silent. Thus, the court found that
the detectives used the threat of a homicide charge to elicit an
incriminating statement by essentially telling the defendant that
the consequences of remaining silent would lead to his girlfriend's
death, which "could be a problem" for him. The court reasoned,
that faced with the aforesaid Hobson's choice, the defendant had
no acceptable alternative but to talk to police detectives.
In this case the omnibus motion (Appendix E), starting on
page 38, provides excerptsfof unmistakable evidence of police
misconduct, coercion, deception and threats - all of which was
practiced upon the mind of Mr. Alexander, so as to break him down
to extort a confession and evidence to build their case against him.
These threats include arresting his wife as a murder suspect and
subjecting her to marathon, interrogation as well as threats that
their twin infant boys will be removed by Family Court authorities
and placed into a Foster Care Facility. They went onto tell Mr.
Alexander he knew if that happened to his wife, being a first time
mother, it was going to kill her.
The detectives told Mr.-Alexander he must convince them that his
10
wife did not know what was going on during.the night of November
15, 2018.
The detectives state, (at (2:00PM), that it is getting too late
for any Family Court Judge to approve a. family member getting
custody of the twins - implying that the police are about to arrest
his wife and turn the twins 'over to officials in the Family Court
System. They claim that time is running out to convince the
Family Court Judge that it was safe for the twins to remain in their
home: and that if that occursj his.wife will be destroyed. They
contintue by telling Mr. Alexander that the only thing he needs to
process is how to keep the twins with his wife.
The detectives claim they are insulted by Mr. Alexander's story,
and that they are "teetering on removing those children (the twins)".
They follow that by stating it is either 3:40pm or 2:40pm and
that there is no more time to discuss the case with Mr. Alexander,
and they must "get out of here" - implying that they will be
interacting with Family Court to remove the children from his wife
and placing them into a Foster Care Facility.
It must also be stated, that these acts, on the part of the
NYSP detectives placed Mr. Alexander under immediate and actual
fear that, if the foregoing events came to pass, then his wife
would likely commit suicide (as Mr. Alexander knew that his wife
would not live without her babies).
During the suppression hearing defence counsel attempted to
question one of the detectives about these threats. The judge would
11
not allow the questioning to take place. A written objection was
filed with the court in the Summary Statement of Constitutuional
Rights Violations (Appendix F).
In Rogers, v. Richmond, 365 U.S. 534(1961), This COurt found,
where a police officer threatened to take a defendant's wife,
(who suffered from arthritis) and foster children into custody,
so as to bring them into police headquarters for marathon questioning
unless defendant confessed to the crimes he was believed to have
committed, that defendant's rights against self-incrimination were
violated. If further found that the aforesaid police conduct
amounted to phychological coercion, which essentially extorted the
confession out of the defendant.
In Lynum v. State of Illinois, 372 U.S. 528(1963), This Court
found, the police intentionally subjected a female defendant to
phychological coercion, duress and threat, which overbore her will
to invoke her Fifth Amendment Right against self-incrimination.
The police did this by threateninggher children would be taken
from her and that all of her finacial aid and that the children
would immediately be cut-off, unless she cooperated with the
authorities and confessed to the crimes lodged against her.
Both the Rogers and Lynum cases are examples of how This Court
has set the precedent that it will not tolerate this kind of
intentional police misconduct.
In this case the detectives knew they had intentionally violated
Mr. Alexander's Constitutional Rights with their misconduct and
tried to make an attempt to clean it up at the end by asking him
12
how he felt and they wanted to make sure he was treated like a
gentleman.
Mr. Alexander: "I mean, you didn't let me not answer questions."
This clearly shows that Mr. Alexander's; mindset was that he had
no other choice but to speak to the detectives and answer their
questions.
It is Mr. Alexander's contention that the actions by the NYSP
detectives during the interrogation, are the type of police
misconduct and gross neglect for the Constitution This Court has
ruled against. Mr. Alexander's statements were compelled and coerced.
Although police misconduct was argued in both Mr. Alexander's
omnibus mition (Appendix E) and on direct appeal, neither the
trial court nor the appellate court addressed this argument in their
decisions, (Appendixs B & A).
•
Evidence was obtained as a direct result of the illegal
interrogation, the exclusionary rule should apply.
This Court Stated,
"The exclusionary rule is calculated to prevent, not repair.
Its.-purpose is to deter-to compel respect for the constitutional
guarantee in the only effectively available way-by removing
the incentive to disregard it." Elkins v. United States, 364
U.S. 206, 217, 80 S.Ct. 1437, 4L.Ed2d 1669(1960).
In this case physical evidence was discovered only as a direct
result of the illegal interrogation of Mr. Alexander, statements
which the trial court suppressed and the appellate court agreed ,
was in violation of his Fifth Amendment Rights. During the illegal
13
interrogation the police asked specific questions in order to learn
what evidence they needed to look for and its location. The
questions by the police make it clear that at the time of the
police misconduct they did not have any details about the evidence
or where to look for it. Those questions are as followed:
Detective: "Okay, what caused those injuries?"
Mr. Alexander: "A knife." .
defective: "A knife?"
Detective: "And where is that knife?"
\
Further questioning by police resulted in information directing
them to a place called Lake Oniad. Police printed out pictures of'
the county to show Mr. Alexander because there are multiple bodies
of water and they did not know which one was Lake Oniad. In order
to discover what evidence they should look for the police asked
Mr. Alexander the following:
Detective: "Okay, so what am I., what is going to be there when
I send somebody?"
Detective: "That's okay, because now I have to get a dive team."
At that point the detective left the interrogation room to have
police secure the area provided by Mr. Alexander. The record shows
that no more than twenty minutes later that area was secured.and
a dive team was called for assistance. The statements regarding
this evidence and the location were suppressed prior to trial as
part of the violation of Mr. Alexander's Constitutional Rights.
The evidence gained illegally by the police should have been ruled
14
tainted fruit of the police misconduct.
Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357 at 2365, 41 L.Ed.2d
182(1974), Justice Rehnquist wrote,
"We have recently said,, in a search and seizure context, that
the exclusionary rule’s "prime purpose is to deter future
unlawful police conduct and thereby effectuate the guarantee
of the Fourth Amendment against unreasonable search and seizure.'
United States v. Calandra, 415 U.S. 338, 347, 94 S.Ct. 613, 619
38 L.Ed.2d 561(1974)
The deterrant purpose of the exclusionary rule necessarily
assumes that the police have engaged in willful, or at the
very least negligent, conduct which has deprived the defendant
of some right. By refusing to admit evidence gained as a result
of such conduct, the courts hope to instill in those particular
investigating officers, or their future couterparts, a greater
degree of. care toward the rights of an accused.
In a proper case this rationale would seem appicable to the
Fifth Amendment context as well."
This case is exactly the kind of Fifth Amendment case Justice
Rehnquist was speaking of.
This Court has stated:
"Under the fruit of the poisonous tree doctrine, evidence may
not be used against a criminal defendant if it was obtained
by exploitation of as illgal search or seizure and not by means
sufficiently distinguishable to be purged of the primary taint."
Wong Sun v. United States, 371, U.S. 471, 484, 488, 83 S.Ct.
407, 417, 9L.Ed.2d 441(1963).
U.S. v. Olivares-Rangel, 458 F.3d 1104, The ecxlusionary Rule,
"is calculated to prevent, not repair. Its purpose is to deter
-to compel respect for the constitutional guarantee in the only
effective available way-by removing the incentive to disregard
it.", Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437,
4L.Ed2d 1669(1960). see also, Excluding from Evidence, supra,
69 YALE L.J. at 436 n.24 (The threat of exclusion will operate
as intended only if an excludable piece of evidence is the’
target of the police activity, and if police are previously
aware of the rule and its threat to the seccess of their
ventures.")"
In Davis and Hayes, This Court held:
15
"When illegal arrest was used as an investigatory device to
obtain fingerprints, the fingerprints were regarded as
inadmissible fruit of an illegal detention.", Hayes, 470 U.S.
at 817-18, 105 S.Ct. 1643; Davis, 394 U.S. at 727-28, 89
S.Ct. 1394.
It was error to apply the inevitable discovery exception
of the exclusionary rule to evidence in this case.
Prior to. trial a Mapp/Dunaway/Huntly hearing was held. Three
of the police the people called as witnesses testified' in regard
to the physical evidence.
The first to testify was Sergeant Weatherwax who was the
Station Commander. Sergeant Weatherwax was the initial supervisor
in charge at the crime scene. He supervised the securing of the
scene and also instructed "troopers" to conduct interviews of
nearby residents. The instructions were to find out if anyone was
a witness to the crime, gain pedigree information such as telephone
numbers, date of birth and addresses. Sergeant Weatherwax was not
present for any searches of the crime scene, as testified, he was
.
not sure if one was done. When asked about a "grid search" he
stated the process for a grid search depends on how many personnel
are available.. At no time did he testify that these searches were
a procedural requirement by the NYSP or that they are conducted at
every crime scene. He actually stated he only participated in these
type of searches when he was a canine handler. On cross-examination
defense counsel asked about futher investigative work:
Counsel: "Did you give instructions of any kind for any work to
be done in an investigatory manner outside of 161 Cider
Mill Loop before you left at four A.M.?"
16
Sergeant: "No,sir."
Defense counsel then questioned Sergeant Weatherwax about the
search of Lake Oniad. Sergeant Weatherwax stated he was not there
but directed "Trooper Reiser" to go there as a result of Mr.
Alexander’s statement,
Counsel: "Do you recall participating in a search of Lake Oniad
bn November 16th?"
Sergeant: "I did not participate in a search of Lake Oniad. I -See.;
I did not search it. Trooper Reiser was there. He
notified me of finding footprints, excuse me, in the
snow there, in Lake Oniad after I sent his there during
the course of the interview of the defendant Alexander
that described Lake Oniad."
Counsel: " Did you dispatch the K-9 unit and Trooper Govoni and
K-9 Lexy to Lake Oniad before or after Mr. Alexander
was interviewed on November 16th?"
Sergeant: "It was during."
Counsel: "During the interview?"
Sergeant: "Yes, sir."
Counsel: "Okay, was the dispatch to Lake Oniad as a result of
information learned is the interview?"
Sergeant: "Of his discription during the interview of Lake Oniad
and the area, yes."
The next witness to testify regarding Lake Oniad was investigator
DuBois. At the time of the investigation, Investigator DuBois had
been emploted with the NYSP for four years and an investigator for
only three months. When he arrived at the crime scene he did not
take part in any active investigation. He stated, he collected
information from the troopers on the scene and the statements they
collected from neighbors. After he left the crime scene he spent
the majority of November 16th at the District Attorney’s Office
r
17
waiting to prepare warrants.
When asked about the interrogation of Mr. Alexander and Lake
Oniad, he stated:
DuBois: "I had learned that information had been developed during
the interview that a weapon was thrown into the lake as
well as certain articles of clothing."
Prosecutor: "Okay. And as a result of that information, what steps
did the state police take to retrieve those items?"
DuBois: "So, immediately once we had learned that information, I
believe Sergeant Weatherwax had contacted the K-9 who
were at 161 Cider Mill.Loop, Trooper Reiser and Trooper
Govoni. Trooper Reiser immediately went to Lake Oniad."
DuBois: "Also our underwater recovery team had been contacted."
During cross-examination, Investigator DuBois admitted there
were other investigators on the case and his actual job was
"essentially responsible for the file".
Investigator DuBois was not actively involved in any of the
investigation in this case and he was not a supervisor making any
decisions in the investigation. By hos own testimony, the only
information he had throughout the entire investigation was that
relayed to him by other members of the state police. Investigator
DuBois testified about videos obtained by the state police that
dipicted a vehicle that appeared similar to the one owned by Mr.
Alexander's wife. On cross when asked about the discovery of the
videos, his testimony is as followed:
DuBois: "It would have come later on, the 16th."
Counsel: "After my .client had made a statement to your other
investigators that he was involved in this crime?"
DuBois: "I believe.so. I can't give you have the exact time. I
believe so."
18
During direct and cross-examination Investigator DuBois was asked
sbout searches. On direct he was asked what HE would do:
Prosecutor: "Can you tell us what, if any, investigative.ste^s you
would have taken to further your investigation/
NOTE: This question was objected to by defense counsel as speculation
but it was overruled.
DuBois: "Yes, first we would extinguish any resources New York State
Police has to offer... we would use grid.searches, we
would use cadaver dogs, we would use canines, we would use
our underwater recovery team.".
This is the only time the people discussed searches with
Investigator DuBois. This is actually immaterial to the case
because it is a question to what HE would bo, not what the actual
procedures of the NYSP were. His further testimony was a list of
searchetechniques the NYSPE"could use". On cross, Investigator
DuBois was asked more specific questions regarding these searches:
Counsel: "I think you mentioned grid searches; is that right?"
DuBois: "Yes."
Counsel: "Grid search is looking for evidence; is that right?"
DuBois: "Yes."
Counsel: "Like a weapon that could be used; right?
DuBois: "A grid search could be used for anything, yes, to find
any type of item, yes."
Counsel: "But you're hot going to do a grid search of the entire
county for this case; is that fair to say?
DuBois: "Not the entire county, no, we could not. We could not do
the entire county."
19
Counsel: "There is limited resources that the State Police have
even in conducting any investigation, even a homicide
investigation; correct?"
DuBois: "Yes, limited resources, yes."
Defense counsel then asked questions directly related to Lake
Oniad:
Counsel: "You had Lake Oniad searched because you had information
from a statement of my client that he had thrown a knife
into that lake; is that correct?"
DuBois: "And articles of clothing, yes."
Counsel: "And that's why you searched that lake, is that correct?"
DuBois: "We went to the lake, yes. I mean yes."
Counsel: "Did you go -- did you send investigators to that lake
to search for clothing after learning that my client had
made a statement. . . that he had thrown articles of ■;
clothing and a knife into that lake?"
DuBois: "Me specifically, I did not, but they were directed by
their supervisor."
.
Counsel: "Who was that?"
DuBois: "It was Sergeant Weatherwax."
Counsel: "After he was told that there was evidence in that lake
that came from a staement of my client?"
DuBois : "Yes."
The third witness the people called regarding the discovery of
evidence at Lake Oniad was Senior Trooper Benziger. Trooper Benziger
testified as an expert witness. He testified that not every body
of water is searched in a homicide case with a missing weapon.
Sometimes if there is a nexus between the crime scene and a body
of water he will be called to give his opinion. He testified that
he did not know if any nexus between the crime scene in this case
20
and Lake Oniad. Furthermore, he did not get called for his opinion
regarding searching any bodies of water in this case. When he was
contacted to organize a dive team, he was told exactly where to go
and what to retrieve. Shortly after those items were retrieved,
the search stopped. He also stated they would not search the entire
lake because it would take weeks.
This case is in conflict with precedents established by This
Court, Circuit Court:decisions and other state court rulings.
This Court expressed proof of inevitable discovery must "focus
on demonstrated historical facts capable of ready verification or
impeachment." Nix,v467 U.S. at 444 n.5, 104 S.Ct. 2501.
Specifically the Second Circuit has explained that "proof of
inevitable discovery involves, no speculative elements but focuses
on demonstrated historical facts capable of ready verification or
impeachment." United States v. Eng, 971 F.2d 854, 859(2nd Cir. 1992),
quoting [Nix v. Williams, 467 U.S. 431, 445 n.5 104 S.Ct. 2501]
State v. Brown, 331 Conn. 258(2019), The Supreme Court of
Connecticut stated:
"We have explained that 'application of the exclusionary rule.,
is not automatic.' State v. Spencer, 268 Conn. 575, 599, 848
A.2d 1183, 543 U.S. 957, 125 S.Ct. 409, 160 L.Ed.2d 320(2004).
:
'Under the inevitable discovery rule, evidence illegally secured
in violation of the defendant's constitutional rights need not
be suppressed if the state demonstrated by a perponderence of
the evidence that the evidence would have been ultimately
discovered by lawful means.' State v. Badgett, 200 Conn. 412,
433, 512 A.2d 160, cert denied, 479 U.S. 940, 107 S.Ct. 423,
93 L.Ed.2d 373(1986).
21
For decades, This Court has expressed that the primary purpose
of the exclusionary rule is to deter police misconduct. In this ?-
case the police refused to honor Mr. Alexander's Consitutional
Rights for the sole purpose of gaining evidence to build their
case. Although the trial court and appellate court acknowledged
Mr. Alexander's Rights had been violated, they failed to address
the flagrant actions of the police by misapplying the inevitable
discovery exception of theeexclusionary rule. By doing so they have
encouraged future misconduct. If the courts had not wrongfully
-applied inevitable discovery, the misconduct by the police in
obtainig evidence would warrant exclusion.
In this case the people arid courts relied on the testimony of
a single investigator to establish inevitable discovery. At the
thime of the investigation he had been an investigator for only
three months and his responsibilities in the investigation was
managing the file. He took no active part in the investigation and
he had no supervisory role. Furthermore, he offered no historical
or actual procedural practices of the NYSP. For the court to grant,
the people inevitable discovery, the investigator simply had to
take the stand, utter the words "grid search" and ^ive his persorial
opinion. This does not meet the requirements for inevitable
discovery in ariy court.
Justice Kagan wrote in her dissent of Utah v. Strieff, 136,
S.Ct. 2056(2016),
"Since Brown v. Illinois,0422 U.S. 590, 60H-605, 95 S.Ct.
2254, ^5 L.Ed.2d H16(1975), three factors have guided that
analysis. First, the closer the 'temporal proximity' between
the unlawful act and the discovery of evidence, the greater
the deterrant value of suppression. Id, at 603, 95 S.Ct. 225<k
22
Second/ the more 'purposeful'.or 'flagrant' the police
illegality/ the clearer the necessity/ and better the chance
of preventing similar misbehavior. Id/ at 6thL 95 S.Ct. 22$fc.
And third/ the presence (or absence) of 'intervening
circumstances' makes a difference: The stronger the casual
chain between the misconduct and the evidence/ the more
exclusion will curb future consitutional violations. Id/ at
603-60H, 95 S.Ct. 225H."
Nix v. Williams/ H67 U.S. M31(190H»).
Hudson v. Michigan/ 5H7 U.S. 506(2006)
In Nix/ This Court applied inevitable discovery because an
active search was already being conducted. This included a well
established search team of over 200 people/ maps of the areas to
search and instructions of what kind of places to search. At the
time the police violated the defendant's rights/ the search was
closing in on the location of the girls body. The search was
stopped because defendant agreed to take police to the location/
which was in an area the search team was instructed to search*
If the violation had never taken place/ the search would not have
stopped and inevitably discovered the girls body.
In Hudson/ This Court applied inevitable discovery because the
police had an active/ valid warrant. When they arrived at the
defendant's house to execute the warrant/ they violated the
"knock and announce" rule. Justice Scalia stated in dicta that
"The Constitutional violation of an illegal manner of entry was
not a "but for" cause of obtaining the evidence. Whether the
preliminary misstep had occurred or not/ the police would have
executed the warrant they had obtained and would have discovered
the gun and drugs inside the house." Hudson/ 5H7 U.S. at 592.
23
There is an active split in the Circuit Courts regarding
'
inevitable discovery.
The Second,Eifith, Eighth, and Eleventh Circuits, require a
form of active pursuit of an independent source. United States v.
Eng, 971 F.2d 05H(2nd Cir. 1992); United States v. Cherry, 759
F.2d 1196(5th Cir. 1905); United States v. Conner, 127 F•3d 663
(0th Cir. 1997); United States v. Virden, H$8 F.3d(llth Cir.'2007
The First, Sixth, Seventh and Tenth Circuits, expressly reject
active pursuit of an independent source. United States v. Ford,
22 F.3d 37H(lst Cir. 1990); United States v. Kennedy, 61 F.3d
H9R(6th Cir. 1995); United States v. Langford, 31H F.3d 092
(7th Cir. 2002); United States v. Larsen, 12if F.3d 90H*(lOth Cir.
1997).
The Fourth and Ninth Circuits, require an "independent
circumstances" test. This approach is "requiring that the facts
or likelihood that make the discovery inevitable arise from
circumstances other than those discovered by the illegal search
itself." United States v. Boatwright, 8'22 F.2d at 864-865(9th Cir.
1987); United States v. Thomas, 955 F.2d 2O7(4ht Cir. 1992).
Although the Circuit Courts are divided on this topic, none of
them would apply inevitable discovery in this case.
There was no "active pursuit". "For inevitable discovery to
.24
be demonstratable, it must be the case that the evidence would
have been aquired lawfully through an independent source absent
the government misconduct.” U.S. v. Eng, 971 F.2d(2nd Cir. 1992).
The people offered no evidence that the evidence would
"inevitably” be discovered. "If the prosecution can establish by
a preponderance of the evidence that the information ultimately
or inevitably would have been discovered by lawful means... then..
the evidence should be recieved." United States v. Ford, 22 F.3d
374(lst Cir. 1994).
The evidence in this case was discovered as a direct result of
the illegal interrogation, it did not "arise from circumstances
other than those disclosed by the illegal search itself." United
States v. Thomas, 955 Fj2d 207(4th Cir. 1992).
Not only does the application of inevitable discovery in this
case fall short of the precedent established by This Court and
all Circuit Courts, it is in conflict with other state court
rulings.
New York Appellate Division, First Department
People v. Savage, 220 A.D. 3d 599(2023),
Mr. Savage was read his Miranda rights. After continued?
pressure by police, Mr. Savage confessed to the crime and directed
the police to the knife he used. Before trial, counsel filed a
motion to suppress the statement made by Mr. Savage as well as the
knife and DNA from the knife. The trial court denied Mr. Savage's
motion. After conviction, Mr. Savage appealed and the New York
Appellate Division, First Department reversed his conviction
25
ordering the staement, knife and DNA be suppressed. They stated
there was no "sufficient break in the interrogation to dissipate
the taint" from the initial violation.
This case and the Savage case are very similar except, the police
misconductis much more flagrant in this case. It is also note
j:,-.
worthy that in Savage, the people tried to appeal the decision to
the New York Court of Appeals. The Court of Appeals denied reviewy
upholding the appellate courts ruling. In this case, Mr. Alexander
tried to appeal to the Court of Appeals and they denied review.
Although these cases are near parallel, the Court of Appeals
supported suppression in Savage but supported denying suppression
in this case. This gives conflicting directions to the lower courts
and leaves them in a confusing place when evaluating inevitable
discovery.
Supreme Court of Alaska
Smith v. State, 948 P.2d 473(1997),
"The doctrine is an exception to the exclutionary rule in
cases where evidence has been obtained in violation of
constitutional protections such as the Fifth Amendment
privilege against self-incrimination. The doctrine is
essentially a variation of the independent source rule, except
that the question is not whether the police actually obtained
evidence from an untainted source, but whether evidence
obtained through; a constitutional violation would inevitably
have been discovered through lawful means."
Supreme Court of Hawaii
State v. Lopez, 78 Hawaii, 433 896 P.2d 889(1995), .
"The prosecution should have the burden of providing by a
clear and convincing standard of proof that the evidence
would have been discovered absent the illegality."
Supreme Court, North Carolina
26
State v. Garner, 331 N.C. 491, 417 S.E. 2d 502, 511(1992),
"At the Supreme Court explained in Nix, 'When...the evidence
in question would inevitably have been discovered without
reference to the police error dr misconduct there is no nexus,
sufficient to provide a taint and the evidence is.admissible.
Conversely, if the state finds itself in a situation where it
must prove that the^evidence inevitably would have been
discovered by other legal, independent means, and if it fails
to do so, the doctrine is not applied and the evidence is
guppressed."
Supreme Court of Arizona
State v. Mitcham, 258 Ariz. 432(2024),
"To prove the inevitable discovery exception, the state
cannot speculate but must instead focus on demonstrated
(
historical facts capable of ready verification or impeachment,
quoting Nix"
United States District Court, M.D. Florida
U.S. v. Massey, 437 F.Supp. .843(1977),
"The violation of Massey's Fifth and Sixth Amendment Rights
by the F.B.I. agents was not only genuine, it was flagrant
and egregious. The court therefore holds that the tainted
fruit of the poisonous tree doctrine should, and does, apply:
all indirect evidence, testimonial and tangible, acquired
from Massey’S admissions must be excluded as the tainted fruit
of the disregard of his^Fif.th and Sixth Amendment Rights.
California Court of Appeals, Second District, Division 7
People v. Superior Court (Corrbett), 8 Cal. App. 5th 670(2017),
Prior to trial defendent filed motion to have firearms evidence
seized from his home suppressed. Police had violated his Fifth
Amendment Rights to Remain Silent in order to gain the location
of the firearms. The trial court granted his motion and the people
appealed. The Court of Appeals affirmed the trial courts ruling,
inevitable discovery did not apply.
Some courts and scholars have expressed concerns about the
implication of inevitable discovery.
27
Texas Criminal Court of Appeals does not recognize inevitable
discovery,
State v. Daugherty, 931,S.W.2d 268(1996),
The inevitable discovery doctrine assumes a causal relationship
between the illegality and the evidence. It assumes that the
evidence was actually 'obtained' illegally. The doctrine
then asks whether the evidence would have been 'obtained'
eventually in any event by lawful means. But the fact that
evidence could have been obtained' lawfully anyways does
not negate the fact that is was in fact 'obtained' illegally...
Once the illegality and its causal connection the the evidence
have been established,-the evidence must be excluded."
United States Court of Appeals, Fifth Circuit
United States v. Casteliana, 488 F.2d 65(5th Cir. 1974),
To admit unlawfully obtained evidence on the strenght of
some judge's speculation that it would have been discovered
legally anyways.would be to cripple the exclusionary rule as
a deterrant to improper police misconduct."
5 Wayne R. LaFave Search & Seizure 11.4(a)(3d ed. 1996)
Professor LaFave summerized the various views,
"On the one had, is it said that it 'is a valuable, logical
and constitutional principle, 'the continued application
of which will not 'emasculate' or blunt the force of the
exclusionary rule.' So the argument goes, the 'inevitable
discovery test, if properly administered, serves well the
raison d etre of the exclusionary rule by denying to the
government the use of evidence 'come at by the exploitation
o ...illegality and at the same time minimize the opportunity
for the defendent to receive an undeserved and socially
undesirable bonanza.' Others object that it is 'based on
conjecture and can only encourage police shortcuts whenever
evidence may be more readily obtained by illegal than by legal
means, and thus 'collides with the fundamental purpose of
the exclusionary rule.' As one commentator put it: Such a
■
rule is completely at odds with the purpose of the exclusionary
1e- If the police will only be deprived of the evidence
which the defendent can show they would not have been able to
obtain had they not engaged in the illegality, they will in
no way be deterred from such conduct; They will stand to lose
what they would not have otherwise had and they might gain
some advantage if something slips by. Moreover. the illegal
route is often the faster and easier than the legally required
28
In sum, This Court has always been the guardian of the Co:
Constitution and the safeguards it provides. The precedents that
This COurt takes great consideration and concern in establishing
should not be usurped by lower courts. No court, until this case,
has ever allowed inevitable discovery to be proven by the speculation
and personal opinion of a single member of law enforcement. One
whom took no part in the active investigation. This.is in direct
conflict with the precedent established by This Court in Nix.
Furthermore, the trial court and appellate court never evaluated
the police misconduct when considering the exclusionary rule
and fruit of the poisonous tree doctrine in this case. THis again
conflicts with the central deterrent purpose THis Court established
the exclusionary rule for. In addition, the trial court refused ■
to allow defense counsel to properly cross-examine witnesses at
the suppression hearing to expose the full depth of the police
misconduct. This was objected to in writing to the trial court
in the Summary Statement of Consitutional Rights Violations ;
(Appendix F). Instead, the court applied inevitable discovery to
save the evidence illegally obtained.
Arguments of evidence and admissibility, even when in violation
of the Constitution are not often allowed in a federal habeas
corpus when arising from a state court ruling. If This Court
does not intervene, the lower court ruling will stand in an attempt
to override the precedent of This Court. Members of law enforcement
will also be encouraged and emboldened to violate the Constitution.
see, Miranda supra,
29
"Those who framed our constitution and the Bill of Rights
were ever aware of the subtle encroachments on individual
liberty. THey know that ’illigitimate and unconstitutional
practives get their first footing... by silent approaches
an:, and'slight deviations from legal modes of procedure;' Boyd
v. United States, 116 U.S. 616. The privilege was elevated
to constitutional states and las always been 'as broad-as
the mischief against which it seeks to guard.' Counselman
v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195. We cannot depart
from this nobel heritage."
The trial and appellate courts erred by ignoring the misconduct
by police and by applying inevitable discovery to the evidence.
These deviations from the legal modes and procedures created
by This Cburt should not be allowed.
It is for the a.bove reasons, Mr. Alexander humbly requests
that This Court grant a writ of certiorari as well as any further
relief This Court deems just and proper.
CONCLUSION
The petition for a writ of certiorari should be granted.
SuJCm to me. to>>s
Respectfully submitted,
Taylor Perry
Notary Public, State of New York
Reg. No. 01PE6393362
Qualified in Essex County
My Commission Expires June 17, 20
30
to
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.