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 (Unpublished)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 (Unpublished).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

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.

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

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