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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petiiton for Writ of Certiorari
- **Published:** January 1, 2001
- **Citation:** 533 U.S. 951

## Text

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.

-2-

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

-11-

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

-12-

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

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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.

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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

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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.

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1780%3A1. Public record. Not legal advice.