Petiiton for Writ of Certiorari — Rost v. City of Henderson

Supreme Court, U.S.

rIiLae

001686 MAY - 42001

No. OFFICE OF THE CLERK

In The

Supreme Court of the United States

RONALD DAVID ROST,

Petitioner,

mA

THE CITY OF HENDERSON, ET AL.,

Respondents.

On Petition For A Writ Of Certiorari

To The Supreme Court Of The State Of Nevada

PETITION FOR A WRIT OF CERTIORARI

BILLY SMITH, JR., ESQ.

Counsel of Record :

KENNETH M. ROBERTS, ESQ.

JOHN HENRY WRIGHT, ESQ.

DEMPSEY, ROBERTS & SMITH, LTD.

520 S. Fourth Street, Suite 360

Las Vegas, Nevada 89101

(702) 388-1216

Counsel for Petitioner

QUESTIONS PRESENTED

1. Did the Petitioner suffer abridgment of his Fourth

Amendment and Fourteenth Amendment rights when a police

officer unlawfully detained him for the apparent purpose of

stalling for time in order to allow another officer to meet with

anonymous informants and upgrade their classification to

identified citizen-informants?

2. Was the investigatory stop unconstitutional for other

reasons in addition to the unlawful after-the-fact identification

of the anonymous informants?

3. Was the investigative stop unconstitutional when it

occurred on the curtilage of the Petitioner's home without

probable cause and in the absence of any reasonable exigency?

PARTIES TO THE PROCEEDING

The parties before this Court are petitioner Ronald David

Rost and Respondents Shauna M. Hughes as City Attorney for

the City of Henderson, Nevada and Frankie Sue Del Pappa as

Attorney General for the State of Nevada.

a.

TABLE OF CONTENTS

Page

ee III 0 nncscnccisnnningeentoatsnennempnatidninabeiiensenes i

PARTIES TO THE PROCEEDING. .............csccccsccsccessecsesesseseeeees ii

ee Se Ie EEE iciisnsecssnncccncnssnnnsenceosbotsnnienseceieatinsens v

ETT TIT IDTD a niorcdctbonscibnacieseicendabiicbseséveninebeneivenebcantenseesesses 1

nT ETITTT sieichitinctnictitcinennntininnntinonehanncentesesennientnenenscimessutascees 2

CONSTITUTIONAL PROVISIONS INVOLVED ................... 2

PR EUTE GA CP UEE GPE consssscctnscsnsncsesnercesenssensesstesnecnnvesces 3

REASONS FOR GRANTING THE PETITION.................:0c00004 )

A. THE PETITIONER’S FOURTH AMENDMENT AND

FOURTEENTH AMENDMENT RIGHTS WERE

ABRIDGED WHEN A POLICE OFFICER UNLAWFULLY

DETAINED HIM FOR THE APPARENT PURPOSE OF

STALLING FOR TIME IN ORDER TO ALLOW

ANOTHER OFFICER TO MEET WITH ANONYMOUS

INFORMANTS AND UPGRADE THEIR

CLASSIFICATION TO IDENTIFIED CITIZEN-

a. csueilcnmeniensteipeabinisl 5

; Petitioner w rior to the identification

of the anonymous informMants..............ccccceseeeeeseseeeeeeees 5

2. The detention did not serve any legitimate

I csscsccsncantssuscennnesncenpeenccessocnapenteies 10

3. The detention was a de facto arrest due to the absence

of a legitimate investigative purpose...................000 14

B. INADDITION TOTHE UNLAWFUL AFTER-THE-FACT

IDENTIFICATION OF THE ANONYMOUS

INFORMANTS, THE INVESTIGATORY STOP WAS

UNCONSTITUTIONAL FOR OTHER REASONG............. 15

1. Thestop-and-frisk ex ion is inappli

was no valid reason for the

II vninsicnisccnssesnichisirliaishinninitieibanesiniaticimplisaiiaigesinlaaphlisataduiaiaiaa 15

2. The anonymous tip did not gain reliability................ 15

' ame Tie Ci OE I ac cccccsncsnsncensnnsnennsosccnnens 17

4. The tip was not sufficiently corroborated.................. 18

C. THE INVESTIGATIVE STOP WAS

UNCONSTITUTIONAL BECAUSE IT OCCURRED ON

THE CURTILAGE OF THE PETITIONER’S HOME

WITHOUT PROBABLE CAUSE AND IN THE ABSENCE

OF ANY REASONABLE EXIGENCY................c0cecceseeee0 23

1. The officer _n b use_to_infrin

on the privacy of the curtilage of a private

LT CIR AANA i eS IRS, ARs MeO 25

2. An investigato ffi was not warranted in th

instant case because the mobility factor was absent and

there was no threat of danget.................ssessssesseeeees 25

fe ER Mirman Sette eR can aN ete Ne RSPAS eS 27

-jv-

TABLE OF AUTHORITIES

Constitutional

United States Constitution Amendment IV................00+ passim

United States Constitution Amendment XIV................. passim

U.S. Supreme Court and Federal Cases

Adams v. Williams, 407 U.S. 144, 147 (1972)..........ssscscseseeees 6,23

Alabama v. White, 496 U.S. 325 (1990).......:.sccsccscsssssessseesssees 18,20

Berkemer v. McCarty, 468 U.S. 420, 439 (1984)..........scsscsssseeeee 15

Coolidge v. New Hampshire, 403 U.S. 443,

EB Ce, Fe ae Ce cnitcesisnitansiiineiniintitntiaenisiioncnsansenhiininntoniantiin 23

Dunaway v. New York, 442 U.S. 200 (1979)..........sccsccsssseseeeesees 15

Florida v. J.L., 120 S. Ct. 1375, 1378 (2000)............sececeeees passim

Gerstein v. Pugh, 420 U.S. 103, 95S. Ct. 854 (1975).......... sees 6

Oliver v. United States, 466 U.S. 170, 180,

DEE. Ce, Fare iiincenisisniantianseneseabisinnsnsinticieninensinianiactions 24

Payton v. New York, 445 U.S. 573, 616 (1980)............:cccccseeeeeees 24

Peterson v. City of Plymouth, 945 F.2d 1416

INET, Sie cstienesinhusitsosiasinisithinnindtlaiiasensenniiinubisiditieadiiadeiatian 10

Steagald v. United States, 451 U.S. 204 (1981)..........ceeseseeneees 23

Terry v. Ohio, 392 U.S. 1, 22-24 (1968).........:scsccceecseesseeees passim

United States v. Anderson, 114 F.3d 1059

Ge, Re iisccec lt aaesinstenkniniiptniaiicininkesnaseituaiciiiusinineineitissaiei 10

United States v. Asselin, 775 F.2d 445 (1st Cir. 1985)............... 24

United States v. Bulgatz, 693 F.2d 728 (8th Cir. 1982).............. 24

United States v. Dunn, 480 U.S. 294, 300,

Se Ga Ba ieatteicintinisiteniseninintiaininviniinnennntditsia 24

U.S. v. Gottschalk, 915 F.2d 1459 (10th Cir. 1990)................... 24

U.S. v. Griffin, 827 F.2d 1108 (7th Cir. 1987)...........ccsecseeeseees 24

U.S. v. Lee, 68 F.3d 1267, 1272 (11th Cir. 1995)...........cscesseeeeee 6

United States v. Napoli, 530 F.2d 1198 (5th Cir.).............s0c000- 24

U.S. v. Payne, 181 F.3d 781, 790 (6th Cir. 1999)... eee 18

U.S. v. Place, 462 U.S. 696, 709-10 (1983).........c.scesesssneeesereees 10

United States v. Salazar, 945 F.2d 47 (2d Cir. 1991)................. 17

U.S. v. Sharpe, 470 U.S. 675, 686 (1985)............ccecceserseseesens 10,14

United States v. Spach, 518 F.2d 866 (7th Cir. 1975).................. 23

United States v. Watson, 423 U.S. 411 (1976)..........c00000000 23,26

Welsh v. Wisconsin, 466 U.S. 740,

Ne 24

PURGE D, ULF, SEF UT GE Gia e ip acerccrscncscssasecnccnssseccnescensnnsehen 15

State Cases

Campbell v. Department of Licensing,

644 P.2d 1219 (Wash. App. 1982)............c.scsssssssseeeesenseeees 22

Commonwealth v. Slater, 363 A.2d 1257, 1259

Ce, GRR Ge, Fa ctieentsintsntsssensesininnssanenninntanninisennsinn 17

Olson v. Commissioner of Pub. Safety,

STE DOV .2ai Gees Gees Wen i xcnenccntcenvnsesssscsenscnsnssessesvensics 22

People v. Ertl, 686 N.E.2d 738 (Ill. App. 1997)...........csesseeee 22

People v. Jones, 554 N.E.2d 516 (Ill. App. 1990)...............cc00- 23

State v. Tucker, 878 P.2d 855 (Kan. App.1994).............cccccseee 25,26

SECONDARY SOURCES

Christopher Slobogin, Testilying: Police Perjury and What To

Do About It, 67 U. Colo. L. Rev. 1037, 1045 (1996)................ 17

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

Municipal Court of the City of Henderson: Petitioner

RONALD DAVID ROST was convicted for driving or being in

actual physical control of a motor vehicle while under the

influence of intoxicating liquor on September 20, 1999, and

sentenced on November 23, 1999 as follows: 1. Attend DUI

School; 2. Attend one session of Victim Impact Panel; 3. Fine

in the amount of $600.00; 4. Administrative fee of $105.00; 5.

Court Fees of $10.00; 6. Two days in jail; 7. Attend outpatient

counseling of one session per week for four weeks; 8.

Chemical analysis fee

of $60.00.

District Court of Clark County: Petitioner filed a Petition for

Writ of Habeas Corpus to the District Court of Clark County,

which denied the Writ in an Order dated July 20, 2000. (See

Appendix E, p. 13)

Supreme Court of the State of Nevada: Petitioner appealed

the District Court's decision denying Defendant's Petition for

Writ of Habeas Corpus to the Supreme Court of the State of

Nevada, which upheld the denial in an Order of Affirmance

dated October 12, 2000. (See Appendix C, p. 8) Petitioner filed

for a Rehearing alleging that the Court misapprehended a

material fact when it relied on an erroneous classification of

the anonymous informants. The Nevada Supreme Court

denied the Rehearing in an Order dated February 6, 2001. (See

Appendix A, p.1)

JURISDICTION

The jurisdiction of this Court is invoked under Title 28, United

States Code, § 1254(1).

CONSTITUTIONAL PROVISIONS AND STATUTES

INVOLVED

Constitutional Provisions:

1. The Fourth Amendment of the United States Constitution

provides:

Unreasonable searches and seizures. The right of the

people to be secure in their persons, houses, papers,

and effects, against unreasonable searches and

seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be

search, and the persons or things to be seized.

2. Section One of the Fourteenth Amendment of the United States

Constitution provides:

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of

the United States and of the state wherein they reside.

No state shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any state deprive any person

of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal

protection of the laws.

Statutory Provisions:

Nevada Revised Statutes § 171.123(1) provides:

(1) Any peace office may detain any person whom

the officer encounters under circumstances which

reasonably indicate the person has committed, is

committing or is about to commit a crime.

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STATEMENT OF THE CASE

Petitioner Rost was unlawfully detained and subsequently

arrested on June 10, 1999 for driving under the influence of

intoxicating liquor on a public highway. Petitioner Rost was

seized by the police at the driveway of his home based on

information received from anonymous informants.

On June 10th of 1999, at about 9:20 in the evening, a

dispatcher relayed information from anonymous informants

to several police officers. The anonymous informants claimed

that they were following either a white pickup or utility

vehicle that was being driven in an erratic manner on a public

highway. Allegedly, the informants gave dispatch the license

plate number of the vehicle. One police officer drove to the

Petitioner's home in an attempt to locate him.

The officer located the Petitioner parked in the driveway

to his own home at 831 Harbor Beach Drive in Henderson,

Nevada. The officer testified that he observed no erratic

behavior by the Petitioner. Yet, the officer initiated an

investigatory stop based solely on ambiguous and discrepant

statements from the anonymous informants. Although the

officer testified that he believed the Petitioner was intoxicated

at the time of the stop, the officer did not further the

investigation by conducting a field sobriety test. Importantly,

the officer testified that he was holding the Petitioner for

another officer. Eventually, another officer arrived at the

Petitioner's home and began the field sobriety test which led

to the arrest of the Petitioner.

After the first officer detained the Petitioner, a third officer

met with the anonymous informants and collected a written

statement. This petition focuses on the fact that the initial

detention of the Petitioner was implemented merely as a

Stalling tactic which enabled the police to meet with

}

anonymous informants and upgrade their classification to

identified citizen-informants.

Although the detention was short in duration, the

detaining officer admitted that he was merely holding the

Petitioner. Regardless of the detaining officer’s motive, the

detention served no legitimate investigative purpose.

Throughout his protracted legal battle, the Petitioner

challenged the legitimacy of the erroneous classification of the

informants. However, even the Nevada Supreme Court failed

to question the validity of the informant classification and the

constitutionality of the detention which was implemented

purely as a stalling tactic.

Therefore, the Petitioner requests relief based on the fact

that no court in the State of Nevada recognized that an

individual must not be detained at the curtilage of his home

for no other apparent reason than to give police officers extra

time to upgrade the reliability of an anonymous tip by

meeting with the informants and reclassifying them as

identified citizen-informants

REASONS FOR GRANTING THE PETITION

A. THE PETITIONER’S FOURTH AMENDMENT AND

FOURTEENTH AMENDMENT RIGHTS WERE

ABRIDGED WHEN A POLICE OFFICER

UNLAWFULLY DETAINED HIM FOR THE APPARENT

PURPOSE OF STALLING FOR TIME IN ORDER TO

ALLOW ANOTHER OFFICER TO MEET WITH

ANONYMOUS INFORMANTS AND UPGRADE THEIR

TIPSTER CLASSIFICATION TO IDENTIFIED

CITIZEN-INFORMANTS.

1. The Petitioner was detained prior to the

identification of the anonymous informants.

Probable cause is the arrest standard, but a law

enforcement officer may conduct a brief investigatory

detention if a reasonable, articulable suspicion of criminal

activity exists. See Gerstein v. Pugh, 420 U.S. 103, 111-12, 43 L.

Ed. 2d 54, 95 S. Ct. 854 (1975) ("The standard for arrest is

probable cause... ."). In Terry v. Ohio, 392 U.S. 1, 22-24 (1968),

this Court held that based on a reasonable, articulable

suspicion, a police officer can stop a person that the officer

reasonably suspects is engaged in criminal activity; the officer

can briefly question the suspect and perform a limited

pat-down frisk for weapons. Thus, Viable government

interests can warrant a brief investigatory detention on less

than probable cause. Terry, 392 U.S. at 21.

The reasonable, articulable suspicion standard is based on

information available to the officer prior to the stop. See

Florida v. J.L., 120 S. Ct. 1375, 1378 (2000) (finding that the

“reasonableness of official suspicion must be measured by

5-

what the officers knew before they conducted the search.”)

When an officer acts on an informant’s tip, the tip must be

reliable in order to satisfy the reasonable, articulable suspicion

standard. In Adams, Justice Rehnquist explained that, like

other forms of evidence, informants' tips "vary greatly in their

value and reliability. One simple rule will not cover every

situation." Adams v. Williams, 407 U.S. 144, 147 (1972).

Although tips vary in reliability, an anonymous tip is not

imbued with credibility. See Florida v. ].L., 120 S. Ct. 1375,

1381 (2000) (Kennedy, J., concurring) ("If the telephone call is

truly anonymous, the informant has not placed his credibility

at risk and can lie with impunity. The reviewing court cannot

judge the credibility of the informant and the risk of

fabrication becomes unacceptable.") Conversely, information

from an identified citizen-informant is presumed reliable. See

U.S. v. Lee, 68 F.3d 1267, 1272 (11th Cir. 1995) (information

provided by informant willing to meet with police is more

reliable than when informant remains anonymous)

The Petitioner’s constitutional rights were violated if there

is even the slightest doubt that the informants were not

identified before the investigatory stop. This factor is

extremely crucial due to the fact that the Nevada Supreme

Court relied heavily on the allegation that the informants were

identified citizen-informants. (See Appendix C, p. 10)

a. The record proves that the informants were

anonymous at the time of the Terry stop.

The following events prove that the Petitioner was

detained prior to the identification of the informants:

(2) Sergeant Vadasy and Officer Brooks received

information from dispatch at 9:20 p.m. on 6/10/99.

(Appendix H, pp. 27, 87)

6-

(3) Sergeant Vadasy initiated an investigative stop

prior to the arrival of Officer Brooks. (Appendix H, p. 28)

(4) Officer Brooks arrived at 831 Harbor Place and

had a conversation with Sergeant Vadasy prior to the

arrest. (Appendix H, p. 28)

(5) Officer Brooks observed and spoke to Rost prior to the

arrest. (Appendix H, p. 39)

(6) Officer Brooks administered a field sobriety test to

Rost prior to the arrest. (Appendix H, p. 39)

(7) Officer Brooks arrested Rost at 9:35 p.m. on 6/10/99.

(Appendix H, p. 84)

(8) Officer Haliday received a written statement from

informant Kelly Jones at 9:30 p.m. on 6/10/99.

(Appendix H, p. 82)

These events establish the fact that all the pertinent events

transpired within a short 15 minute time-frame which

occurred between 9:20 p.m. and 9:35 p.m. on 6/10/99. This

information easily rebuts the classification of the informants.

Yet, no court in the State of Nevada gave any consideration to

this strong evidence negating informant classification.

b. The time-line proves that the informants were

anonymous at the time of the Terry stop.

The investigatory stop was made by Vadasy before the

informants had a face-to-face meeting and were identified by

Officer Haliday. This fact is easily proven by the trial

transcript and arrest records cited above. Clearly, it would be

impossible for all the documented events to occur within the

five minute time-span between the time the anonymous

informants came forward to be identified at 9:30 p.m. and the

actual time of Rost’s arrest at 9:35 p.m. This means that all of

the following events occured within five minutes:

(1) The investigatory stop of Rost by Sergeant Vadasy;

A, B

(2) Sergeant Vadasy’s observation of Rost’s physical

appearance;

(3) Sergeant Vadasy’s conversation with Rost;

(4) Sergeant Vadasy’s detention of Rost pending the

arrival of Officer Brooks;

(5) The arrival of Officer Brooks and his conversation with

Sergeant Vadasy;

(6) The observation of Rost’s physical appearance by

Officer Brooks;

(7) The conversation between Officer Brooks and Rost;

(8) The administering of the field sobriety test by Officer

Brooks.

Working backwards from the 9:35 p.m. time of the arrest, it is

obvious that Sergeant Vadasy initiated the stop prior to the

9:30 p.m. time when the informants were identified and met

face-to-face with Officer Haliday. Also, there is no trial record

showing that Dispatch relayed any information pertinent to

this critical time-line. Thus, these facts conclusively prove that

Sergeant Vadasy acted on an a tip from an anonymous

informant.

c. The prosecution should bear the burden of proving

that the anonymous informants were identified before

the investigatory stop was initiated.

The trial record fails to show that the informants were

properly identified (name, address, social security number,

occupation, etc.) prior to their face-to-face meeting with Officer

Haliday. The prosecution never offered a time-line of the

events leading up to the identification of the informants. The

prosecution never produced the Dispatcher’s tape to prove

that the citizens were identified prior to the unlawful

detention. The prosecution never used Officer Halliday or the

Dispatcher to verify citizen identification in spite of the fact

-8-

that they were the only people who had any contact with the

informants. Possibly, the prosecution failed to offer such

evidence because it did not possess any valid evidence that

would verify informant status. Regardless, no court in the

State of Nevada gave reasonable consideration to Petitioner’s

repeated assertions that the informants were anonymous

prior to the investigatory stop.

d. The State of Nevada imposed an implicit presumption

upon the Petitioner.

In essence, this case stands for a contortion of the judicial

process in which it appears that the Petitioner was forced to

rebut unsubstantiated allegations that the informants were

identified before the investigatory stop. Clearly, this

proposition is an abridgment of the Petitioner’s constitutional

rights.

e. The Petitioner never received the due process of law

and protection from unlawful search and seizure owed

to him by the City of Henderson and the State of

Nevada.

On little more than the allegations of the prosecutors, the

courts of Nevada have consistently approved of a fatally

defective tip classification process. Identification acquired

after-the-fact is a violation of our Constitution. This detain-

and-meet procedure will promulgate an unfettered abuse of

police power.

There is only one essential question: What was the status

of the informants prior to the investigative stop? See Florida

v. J.L., 120 S. Ct. 1375, 1378 (2000) (finding that the

“reasonableness of official suspicion must be measured by

what the officers knew before they conducted the search.”).

The Petitioner never received an explanation for the

-9-

questionable method in which the informants were classified

because the courts of Nevada accepted the alleged

classification at face value. Some fact finding was warranted

in the instant case, but none was given. Thus, Petitioner's

request should be granted.

2. The detention did not serve any legitimate investigative

purpose.

The detention must be reasonably related in scope to the

original investigative purpose. To be constitutional, an

investigative detention “must be justified at its inception and

... must be ‘reasonably related in scope to the circumstances

which justified the interference in the first place.” United

States v. Anderson, 114 F.3d 1059, 1063 (10th Cir. 1997) (quoting

, 392 US. 1, 20, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968)).

The investigation must proceed diligently. In determining

whether police have acted diligently, courts look to whether

officers pursued means of investigation likely to confirm or

dispel their suspicions quickly. U.S. v. Sharpe, 470 U.S. 675,

686 (1985). See, e.g., U.S. v. Place, 462 U.S. 696, 709-10 (1983)

(detention unreasonable because police failed to act diligently

_ and misinformed detainee as to expected course of

_ investigation); Peterson v. City of Plymouth, 945 F.2d 1416, 1420

(8th Cir. 1991) (detention unreasonable because police seized

suspect from front yard of home and need for immediate

action was not significant)

The Petitioner’s constitutional rights were violated if the

detention served no legitimate purpose as evidenced by a lack

of reasonable relation to the original investigative purpose

and/or a lack of diligence by the police officers in confirming

or dispelling suspicion.

a. The detaining officer was not diligent because he

-10-

admitted that he was stalling for time.

The detaining officer admitted he was merely stalling for

time. Sergeant Vadasy testified that he was holding the

Petitioner pending the arrival of another officer. (See

Appendix H, p. 28) The detaining officer did not declare any

legitimate investigative purpose for detaining the Petitioner

rather than arresting him. There is no evidence which shows

that the detention was necessary in order to legitimately

advance the investigation. Here, the detaining officer was

merely stalling for time. Thus, the detention served no

legitimate investigative purpose.

The detaining officer’s motive is highly suspect. Possibly,

Sergeant Vadasy might claim that he was merely holding the

Petitioner for Officer Brooks because his [Vadasy’s] position is

more supervisory and it would inconvenience him to have to

conduct the arrest on his own. (See Appendix H, p. 31) This

argument fails because our constitution should never be

sacrificed on the altar of convenience. Regardless of whether

the detaining officer's motive was based on convenience or

conspiracy, this means of investigation [stalling] was highly

unlikely to further the investigative purpose.

b. The detaining officer was not diligent.

Sergeant Vadasy stated that he “observed an odor of

unknown alcoholic beverage” emanating from Petitioner Rost

and also noticed that “he [Rost] was just swaying back and

forth.” (See Appendix H, p. 28) This is virtually identical to

the observations made by Officer Brooks when he testified that

he noticed a “moderate odor of an unknown alcoholic

beverage.” (See Appendix H, pp. 38-39 ) Thus, Vadasy

testified that he observed the same behavior which prompted

Brooks to conduct a field sobriety test. Yet, Vadasy did not

conduct a sobriety test in spite of the fact that he made the

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same observations and had the same information available to

him as Officer Brooks. This fact is critical because once Vadasy

had enough information to conduct the sobriety test, the

investigative purpose of the subsequent detention becomes

highly suspect. When Brooks arrived at the scene, Vadasy

stated the following: “When Brooks arrived he began

administering a field sobriety test. I explained to him what I

did and what I observed up to that point, and he began

administering the field sobriety test.” (See Appendix H, p. 29)

This proves that Vadasy had the same information available

to Brooks and further proves that the sole purpose of the

detention was to stall for time. Vadasy even admitted that the

purpose of the detention was to stall for time when he said he

was “standing by for him [Brooks].” (See Appendix H, p. 28)

Rost was detained for a purpose that was not related in

scope to the original investigative purpose. Since Vadasy had

the same information and made the same observations as

Brooks, his subsequent failure to make the arrest indicates that

the detention was not made to further any legitimate

investigative purpose. Officer Brooks observed nothing new.

Sergeant Vadasy conveyed his observations to Brooks and

Brooks immediately conducted the field sobriety test. Since

the officers admitted that the detention added nothing new to

the investigation, the detention did not serve any legitimate

purpose. Since the detention did not have any legitimate

purpose, the detaining officer’s conduct was an unlawful and

unconstitutional application of an investigative stop.

c. The face-to-face meeting with the informants served

no legitimate investigative purpose.

In the Narrative Sheet, Officer Brooks, stated:

The citizen advised that they were behind this vehicle

from S/B US 93 (Boulder Highway) across from the

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Jokers Wild Casino. They advised that the vehicle was

swerving within and crossing over the travel lane.

They also reported that the vehicle had almost struck

the curb several times, and that it had been driven

through a red traffic signal at Water Street and Lake

Mead without stopping. The citizens advised that the

vehicle continued on Pacific to Horizon and almost

struck children that were on the side of the road. (See

Appendix H, p. 87)

This information must be compared to the informants’

statements in order to ascertain whether the purpose of the

meeting was to further the investigation or to merely upgrade

the classification of the tip.

Officer Halliday met with the informants and obtained the

following written statement from Mr. Kelly Jones:

We noticed the driver swerving all over the road at

about Jokers Wild. The driver almost hit the curb

several times. [T]he driver almost ran the red light at

Water and Lake Mead. [T]he driver passed a car [and]

almost hit kids on the side of the road. [W]e followed

the driver all the way to Horizon and 95 freeway. (See

Appendix H, p. 82)

When this information is compared to the Narrative Sheet, we

notice that the information is virtually identical. The identical

statements pertain to swerving, almost hitting the curb, almost

hitting children, and the location of the traffic light. These

similar statements show that Officer Halliday’s sole purpose

was not to further the investigation in any manner; Halliday

met with the informants only to get their identification and

strengthen the case against the Petitioner .

Officer Halliday did not obtain any new information when

i.

he met with the informants. The information he obtained

merely repeated what the officers collectively knew prior to

the face-to-face meeting. Officer Halliday should have asked

questions to clarify the crucial discrepancy over whether the

Petitioner Rost ran or almost ran the red light at Water and

Lake Mead. Apparently, Officer Brooks heard that Rost ran

the red light from the Dispatcher because he stated that fact on

the DUI Summary. (See Appendix H, p. 83) Officer Halliday

should have asked questions pertaining to the informant’s

repeated use of the word “almost.” (See Appendix H, p. 82)

A trained police ofixer has a duty to seek clarification

when a person is detained purely on nothing more than

ambiguities and discrepancies. Thus, Officer Halliday did not

meet with the informants to gather any new information.

Instead, he met with the informants for the sole purpose of

gaining their identification and strengthening the case against

the Petitioner.

3. The detention was a de facto arrest due to the absence of

a legitimate investigative purpose.

There are “difficult line-drawing problems _ in

distinguishing an investigative stop from a de facto arrest.”

Sharpe, 470 U.S. at 685. Here, the Petitioner was not detained

for a legitimate investigative purpose; the Petitioner was

detained purely to stall for time. Also, the police did not meet

with the informants to gather any new information; the sole

purpose of the meeting was to identify the informants and

elevate the status of the tip. Once the purpose of the

investigatory stop shifted from a legitimate investigative

purpose to an illegitimate detaining purpose, the police

conduct was functionally equivalent to an arrest and an arrest

is unconstitutional in the absence of probable cause. Dunaway

v. New York, 442 U.S. 200 (1979).

-14-

B. IN ADDITION TO THE UNLAWFUL AFTER-THE-

FACT IDENTIFICATION OF THE ANONYMOUS

INFORMANTS, THE INVESTIGATORY STOP WAS

UNCONSTITUTIONAL FOR OTHER REASONS.

1. The stop-and-frisk exception is inapplicable because

there was no valid reason for the stop.

The stop-and-frisk principles of Terry apply to a traffic stop

if there is a valid reason for the stop and the “reasonable,

articulable suspicion of criminal activity” test is met. Terry's _

stop-and-frisk principles are applicable to a traffic stop if there

is a valid reason for the traffic stop. Traffic stops are

analogous to Terry stops. Berkemer v. McCarty, 468 U.S. 420,

439 (1984). There must be a valid reason for the stop. See

Whren v. U.S., 517 U.S. 806, 810 (1996) (the Court held that an

automobile may be stopped "where the police have probable

cause to believe that a traffic violation has occurred.")

The valid-stop requirement must be met before an officer

can invoke the lower reasonable suspicion Terry standard in

lieu of the more stringent probable cause standard.

There was no valid reason for the stop in the instant case.

The detaining officer, Sergeant Vadasy, testified that he

observed no erratic driving. (See Appendix H, p. 31)

Therefore, the investigatory stop was improper because

Sergeant Vadasy had no reasonable basis to warrant use of the

lenient Terry stop-and-frisk principles.

2. The anonymous tip did not gain reliability.

An anonymous tip can gain credibility prior to the

investigatory stop. An anonymous tip can gain reliability if

strengthened by corroboration, experience, details, predictive

information, an informant facing the risk of reprisal, and an

informant facing the risk of accountability. See Florida v. ].L.,

-15-

120 S. Ct. 1375, 1381 (2000) (Kennedy, J., concurring)

However, these factors do not strengthen the reliability of a tip

after the investigatory stop is implemented.

In the instant case, the anonymous tip should not gain

credibility based on after-the-fact informant identification.

Here, the informants were not identified until they met with

an officer after the investigatory stop was conducted. (See

Appendix H, p. 92) Nothing in the trial record indicates that

the informants were identified prior to the unlawful detention

of the Petitioner. Certainly, the prosecution would present

such evidence if it existed. Thus, the after-the-fact

identification of the informants must not be used to strengthen

the reliability of an unreliable tip. See Florida v. ].L., 120S. Ct.

1375, 1378 (2000) (finding that the “reasonableness of official

suspicion must be measured by what the officers knew before

they conducted the search.”) Therefore, this tip should be

categorized and judged under the rules pertaining to

anonymous tips.

Aside from the fact that the Petitioner was unlawfully

detained to allow reclassification of the informants, the

petitioner's cause would still prevail under following factors:

corroboration, experience, details, predictive information, an

informant facing the risk of reprisal, and an informant facing

the risk of accountability. The risk of reprisal is inapplicable

to this case. Experience is also inapplicable to this case. Thus,

the following factors are relevant: the risk of accountability, a

qualitative and quantitative analysis of the tip information

(details and predictive information), and the subsequent

verification of that information by the police officers

(corroboration).

3. Accountability should not imbue the tip with

-16-

Courts have routinely held that a tip may be sufficiently

reliable tip to support a traffic stop when the informant can be

held accountable because he or she gave the police identifying

information such as the informant’s name, address or other

form of identification. See United States v. Salazar, 945 F.2d 47,

50-51 (2d Cir. 1991) (face-to-face informant must be thought

more reliable than anonymous telephone tipster since former

runs risk that he may be held accountable if information

proves false).

The emphasis that courts place on informant accountability

may be unwarranted because successful prosecution for

perjury is unlikely and the risk of arrogation of constitutional

rights is too great. See Christopher Slobogin, Testilying: Police

Perjury and What To Do About It, 67 U. Colo. L. Rev. 1037,

1045 (1996) (describing how in the context of obtaining a

warrant, perjury is frequently committed by affiants because

they are "seldom made to pay for their lying"); Commonwealth

v. Slater, 242 Pa. Super. 255, 363 A.2d 1257, 1259 (Pa. Super. Ct.

1976) ("The course from an informant's false statement to his

conviction is a long and tortuous one. Statistically, the chances

of such a prosecution are almost nonexistent.").

Accountability should not imbue the informants tip with

reliability under the facts and circumstances of this case.

Petitioner cites many examples of the erroneous, conclusive,

and ambiguous nature of the informants’ testimony. The

inconsistencies might be an innocently confused account of the

actual events. Conversely, the flawed testimony may indicate

a manifestation of “road-rage” in which the informants are

punishing the Petitioner for some perceived wrong he

committed against them as they were driving. We may never

know whether the inconsistent information was caused by an

innocent mistake or a malicious desire to persecute the

Petitioner. Irrespective of motive, the ambiguous record and

-17-

lack of corroboration warranted a closer inquiry into the

reliability of the informants in the present case. Thus,

accountability is not a viable factor under the facts and

circumstances of the present case.

4. The tip was not sufficiently corroborated.

An anonymous tip needs corroboration. See Alabama v.

White, 496 U.S. 325, 329 (1990) (holding that a corroborated

anonymous tip exhibits "sufficient indicia of reliability to

provide reasonable suspicion" to make a stop) Additionally,

the tip should include predictive information. See, e.g., U.S.

v. Payne, 181 F.3d 781, 790 (6th Cir. 1999) (anonymous tip that

lacked detail and prediction of future events did not provide

reasonable suspicion because it could not be corroborated).

In order to be reliable, an anonymous tip must be

corroborated and provide some predictive detail.

a. The Nevada Supreme Court erred when it failed to

require sufficient corroboration of the anonymous tip

before it ruled against the Petitioner.

As previously stated, the Nevada Supreme Court

erroneously accepted the unsubstantiated allegation that the

tip came from identified citizen-informants. (See Appendix C,

p. 10) Thus, this Court should grant Petitioner’s request fcr a

Writ of Certiorari. However, even if the tip lies somewhere

between the truly anonymous and identified citizen-informant

categories, the Nevada Supreme Court erred because it gave

no weight to the fact that some reasonable degree of

corroboration was warranted because the informant’s

statements were ambiguous, conclusory, and unreliable.

b. The Nevada Supreme Court accepted corroborative

details at face value without giving sufficient weight

to the ambiguities in the record.

-18-

In its Order of Affirmance, the Nevada Supreme Court

stated the following: “The identified citizen-informants

supplied sufficient detail to support a stop and detention, and

the officer satisfactorily corroborated the report.” (See

Appendix C, p. 10) The Nevada Supreme Court's decision

included an excerpt the district court’s post-conviction petition

denial as follows:

[B]ased on information concerning the make, color,

and license number of the vehicle driven by Petitioner

[Rost], as well as information regarding Petitioner's

erratic driving which was suppled by two (2) named

citizens . .. who were following Petitioner, the traffic

stop conducted by the Henderson police officers was

reasonable, valid, and proper. (See Appendix C, p. 9)

Once again, the Nevada Supreme Court accepted the

information without considering the reliability of the source or

requiring a minimal degree of corroboration.

c. The Nevada Supreme Court ignored numerous

discrepancies and ambiguities in the trial record.

The following excerpts illustrate that the trial record was

replete with ambiguity and devoid of reasonable tip

corroboration: ;

(1) There was a discrepancy as to whether the vehicle was

a “white utility vehicle” or a “white truck” (See

Appendix H, pp. 22, 24, 27, 28, 33, 55, 83)

(2) In the informant’s written statement, the word “he”

was scratched out and substituted with the words “the

driver.” Thus, the informants were unsure of the

driver’s gender. (See Appendix H, p. 82)

(3) The detaining officer, Sergeant Vadasy, was unable to

corroborate any of the conclusory statements of the

-19-

informants pertaining to erratic driving because he

observed no traffic violations during his alleged initial

viewing of Petitioner Rost’s vehicle. (See Appendix

H, p. 31).

(4) There was a discrepancy as to whether the Petitioner

ran or almost ran a red light. (See Appendix H, pp. 26,

82, 83, 87)

(6) The written. statement made by Mr. Kelly Jones

contains allegations that the Petitioner “almost”

committed traffic violations. (Gee Appendix H, p. 82)

The “almost” standard should not be utilized when an

individual's liberty is at stake.

These examples exemplify the deficient corroboration

standard that the Nevada courts used to justify denial of

Rost’s writ of habeas corpus petitions.

d. The Nevada Supreme Court erred when it failed to

adequately test the tip for reliability.

The Nevada Supreme Court erred when it failed to

reasonably test the tip for corroboration. Under the White test,

a tip requires more corroboration if the trustworthiness of the

informant is unknown, but if the information comes from a

known source, less corroboration is needed. Alabama v. White,

496 U.S. 325, 330 (1990). Even if the source is known, the

White test clearly implicates that some degree of corroboration

is necessary if there are ambiguous statements and

discrepancies in the record. White, 496 U.S. at 330. Here, the

trustworthiness of the informant is called into question by

numerous discrepancies and ambiguities in the trial record.

Yet, the Nevada Supreme Court mane to reasonably test the

tip for reliability.

e. The Nevada Supreme Court erred when it failed to

reasonably test for informant reliability.

-20-

In Kaysville City v. Mulcahy, 943 P.2d 231, 235-36 (Utah Ct.

App. 1997), the Utah Court of Appeals used the following

three factors in determining the reliability and sufficiency of

an informant's report:

(1) “As our first factor, we focus on the type of tip or

informant involved.” Id. at 235.

(2)The second factor we explore is whether the informant

gave enough detail about the observed criminal activity to

support a stop. Id. at 236.

(3)The final factor is whether the police officer's personal

observations confirm the dispatcher's report of the informant's

tip. Id.

In the present case, the Nevada Supreme Court used

Mulcahy to justify its stance on the reliability of identified

citizen-informants. (See Appendix C, p. 10) Yet, it is obvious

that the court failed to use the Mulcahy test, because even a

cursory glance at the record would instantly reveal the

erroneous informant classification, the ambiguous record, and

the lack of corroboration by the investigating officer. If the

Nevada Supreme Court had used the Mulcahy test, the

Petitioner might have been spared this protracted legal battle.

f. The corroborative details used to deny the Petitioner's

rights are not generally accepted as dispositive.

Even if we pretend that the alleged corroborative

information used against the Petitioner was not riddled with

abstruseness, the fact that certain details were corroborated

does not automatically engender iron-clad presumptions

which endow the information with reliability and the

informant with trustworthiness.

Numerous cases illustrate how corroborative information

which seems sufficient can fail to meet the high evidentiary

threshold necessary to satisfy the reasonable, articulable

-21-

suspicion standard. See Olson v. Commissioner of Pub. Safety,

371 N.W.2d 552, 555 (Minn. 1985) (Minnesota Supreme Court

found tip lacked indicia of reliability when citizen informant

reported a "possible drunk driver", described the vehicle,

license plate number, and vehicle location, but the

investigating officer observed no erratic driving); People v. Ertl,

686 N.E.2d 738, 745 (Ill. App. 1997) (“Though a degree of

veracity or credibility would normally attach to the

information provided by an identified citizen-informant, the

information supplied here was based on limited and

somewhat speculative observations and consisted largely of

the informant's subjective fears.”); Campbell v. Department of

Licensing, 31 Wash. App. 833, 835-36, 644 P.2d 1219 (1982)

(motorist drove up to a car and yelled to an officer that a

drunk driver was heading southbound, and gavea description

of the vehicle; tip held not reliable because it was conclusory)

Like the cases cited above, the instant case contains

information which is deficient because it is conclusory, non-

predictive, speculative, and subjective. Any doubt or

discrepancy in informant trustworthiness should lower the

high indicia of reliability normally due an identified citizen-

informant. The White test should be used to equitably balance

the interests of the government and the private individual.

Here, the facts and circumstances demanded more than

minimal corroboration. Thus, the Petitioner’s request should

be granted because he never received the minimal degree of

corroboration necessary to protect his constitutional rights.

Some states demand sufficient corroboration even if the

informant is identified. See People v. Ertl, 686 N.E.2d 738, 746

(IlLApp.1997) (“However, the mere fact that a citizen is

identified will not automatically impart credibility and

reliability to his statement, and courts may look to additional

factors in evaluating the information.); People v. Jones, 196 Ill.

-22-

App. 3d 937, 956, 143 Ill. Dec. 581, 554 N.E.2d 516 (1990)

(noting Adams; without more, statement of eyewitness

citizen-informant no longer viewed as presumptively or

inherently reliable); Hood, 262 Ill. App. 3d at 175 (noting

independent verification by police of citizen-informant's

information); United States v. Spach, 518 F.2d 866, 870 (7th Cir.

1975). ("That a person is named is not alone sufficient grounds

on which to credit an informer, but it is one factor which may

be weighed in determining the sufficiency of an affidavit.").

Given the ambiguity, discrepancy, and unreliability

prevalent in the instant case, Petitioner Rost was owed some

reasonable degree of corroboration even if this Court

categorizes the informants as identified citizen-informants.

Since the Nevada Supreme Court accepted the erroneous tip

classification and failed to require sufficient tip corroboration,

this Court should grant the Petitioner’s request.

C. THE INVESTIGATIVE STOP WAS

UNCONSTITUTIONAL BECAUSE THE STOP

OCCURRED AT THE CURTILAGE OF THE

PETITIONER’S HOME WITHOUT PROBABLE CAUSE

AND IN THE ABSENCE OF ANY REASONABLE

EXIGENCY.

The law recognizes a greater privacy interest in houses.

See United States v. Watson, 423 U.S. 411, 423 (1976) (a public

arrest can occur without a warrant); but see Steagald v. United

States, 451 U.S. 204 (1981) (an arrest in a private home cannot

occur without a warrant).

A warrant is needed to arrest a person in their home. In

Coolidge v. New Hampshire, 403 U.S. 443, 459-62, 29 L. Ed. 2d

564, 91 S. Ct. 2022 (1971) (plurality opinion), four members of

the Court suggested that unless there was an emergency, a

warrant is always needed to arrest a person in the home. Two

-23-

other members of the Court thought an exception should be

made in the case of a felony, see Id. at 510-11 and n. 1

(concurring and dissenting opinion). In Payton v. New York,

445 U.S. 573, 616 (1980), even the dissenting Justices

recognized that a warrantless arrest in the home was allowable

only if certain conditions were met, including that the arrest be

(1) in the daytime and (2) for a felony. The presumption of

unreasonableness that attaches to a warrantless arrest in a

private home is difficult to rebut when the government's

interest is only to arrest for a minor offense. Welsh v.

Wisconsin, 466 U.S. 740, 750-751, 104 S. Ct. 2091, 2098, 80 L. Ed.

2d 732, 743-744 (1984). Thus, a person has greater privacy

protection in his home and probable cause is the operative

standard as opposed to the lower threshold of reasonable

suspicion.

Fourth Amendment protection extends to the curtilage of

an individual’s home. Fourth Amendment protection extends

to the curtilage of a house. United States v. Dunn, 480 U.S. 294,

300, 94 L. Ed. 2d 326, 107 S. Ct. 1134 (1987); Oliver v. United

States, 466 U.S. 170, 180, 80 L. Ed. 2d 214, 1045S. Ct. 1735 (1984).

The law is well established that "[a] search warrant

authorizing a search of a certain premises generally includes

any vehicles located within its curtilage if the objects of the

search might be located therein." U.S. v. Gottschalk, 915 F.2d

1459, 1461 (10th Cir. 1990); see also U.S. v. Griffin, 827 F.2d

1108 (7th Cir. 1987), cert. denied, 485 U.S. 909, 99 L. Ed. 2d 243,

108 S. Ct. 1085 (1988); United States v. Asselin, 775 F.2d 445 (1st

Cir. 1985); United States v. Bulgatz, 693 F.2d 728 (8th Cir. 1982),

cert. denied, 459 U.S. 1210, 75 L. Ed. 2d 444, 103 S. Ct. 1203

(1983); United States v. Napoli, 530 F.2d 1198 (5th Cir.), cert.

denied, 429 U.S. 920, 50 L. Ed. 2d 287, 97 S. Ct. 316 (1976).

Petitioner Rost was detained after his vehicle was parked

in his own driveway. Sergeant Vadasy testified that he saw

Rost’s vehicle turn into 831 Harbor Beach [Rost’s home]. (See

Appendix H, p. 31) Vadasy testified that he observed Rost

turning the engine off in his driveway while Vadasy was still

in his police car.(See Appendix H, p. 30) Vadasy testified that

he pulled into the driveway behind Rost. (See Appendix H, p.

31)

The investigatory stop was unconstitutional. When Rost

pulled into his driveway, he entered the privacy of the

curtilage of his home. There is nothing in the record that

indicates Sergeant Vadasy flashed his lights or sounded his

siren. Thus, Rost was not aware of the traffic stop until he had

left the public street and entered the sanctuary of the curtilage

of his home. Vadasy erroneously applied an investigatory

traffic stop when the constitution demanded the heightened

standard of probable cause instead of the lower threshold of

reasonable suspicion. Therefore, the investigatory stop was

unlawful and the Petitioner’s request for a Writ of Certiorari

should be granted.

2. i ep YT I

nt ause the mo factor was a

there was n f dan

An individual has a lower expectation of the right to

privacy in a mobile vehicle than in a dwelling. See State v.

Tucker, 878 P.2d 855, 858 (Kan. App.1994) (requirements to

justify a stop or search or arrest are lessened when the focus

of the stop or search is a mobile automobile); Id. (search of a

home or dwelling is seldom justified in the absence of a search

warrant). The fact that a mobile vehicle is traveling on a

-25-

public highway corresponds to the lower expectation of

privacy due an individual in a public place. Watson, 423 U.S.

at 423. Removing an intoxicated driver from a public highway

is warranted in order to protect the public and the driver.

Thus, “when the danger to the public is clear, urgent, and

immediate, the equation must be weighted in favor of

protecting the public and removing the danger. Tucker, 878

P.2d at 861.

The vehicle was not in a mobile state and there was no

threat of danger. Sergeant Vadasy testified that Petitioner

Rost’s vehicle was parked in his driveway. (See Appendix H,

p. 30) Vadasy had no legitimate reason to invade Rost’s

privacy because an investigative stop should be used to

prevent the danger caused by a mobile vehicle on a public

highway. Thus, there was no clear, urgent, and immediate

danger to the public which could justify a violation of the

Petitioner's right to privacy in the curtilage of his home.

CONCLUSION

Based on the foregoing, the Petitioner respectfully requests

that his petition for writ of certiorari be granted.

-26-

Respectfully submitted,

Dated: V\ an, L , 2001

BILLY SMITH, JR., ESQ.

Counsel of Record

KENNETH M. ROBERTS, ESQ.

JOHN HENRY WRIGHT, ESQ.

DEMPSEY, ROBERTS & SMITH, LTD.

520 S. Fourth Street, Suite 360

Las Vegas, Nevada 89101

(702) 388-1216

Counsel for Petitioner Ronald David Rost