Petition for Writ of Certiorari — Gunter v. United States (No. 08-104)

4 Court, U.8.

FILED

08-104 MAY 19 2008

Gere as Oe Pris CL ESAS

In The Wiieaas: <. Sumer, Chey tc

Supreme Court of the Anited States

CORNELL P. GUNTER,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

7 Respondent.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

T. Scott JONES

Counsel of Record

318 N. Gay STREET

SUITE 210

KNOXVILLE, TN 37917

(865) 546-2141

Attorney for Petitioner

July 11, 2008

Becker Gallagher - Cincinnati, OH - Washington, D.C. - 800.890.5001

QUESTIONS PRESENTED FOR REVIEW

1. Whether the Sixth Circuit erred by failing to hold

that

a.

b.

The search warrant was based upon allegations

of an unrelhable confidential information and

The search warrant did not show a sufficient

nexus between the alleged criminal activity and

the residence of Mr. Gunter to establish

probable cause.

il

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW

TABLE OF CONTENTS

TABLE OF AUTHORITIES

CITATIONS OF THE OFFICIAL AND

UNOFFICIAL REPORTS OF THE OPINIONS

AND ORDERS ENTERED IN THE CASE BY

THE COURTS

BASIS FOR JURISDICTION BY THE UNITED

STATES SUPREME COURT

RELATIVE CONSTITUTIONAL PROVISION,

TREATISES, STATUTUES, AND

ORDINANCES AND REGULATIONS

STATEMENT OF THE CASE

ARGUMENT AND AUTHORITY TO SUPPORT

GRANTING A WRIT OF CERTIORARI

CONCLUSION

APPENDIX

Appendix A: Order and Memorandum of the

United States District Court of the Eastern

District of Tennessee denying Defendant/

Appellant Cornell P. Gunter’s Motion to

Supress, August 14, 2006

11

Appendix B: United States Court of Appeals for

the Sixth Circuit’s Order affirming the finding

of the trial court in its denial of the

Defenant/Appellant Cornell P. Gunter’s Motin

to Supress Search Warrant, dated February 20,

iv

TABLE OF CITED AUTHORITIES

CASE LAW

United States v. Angulo-Lopez,

791 F.2d 1394 (9th Cir. 1986)

United States v. Carpenter,

360 F.3d 591 (6th Cir. 2004)

United States v. Frazier,

423 F. 3d 526 (6th Cir. 2005)

United States v. Hargus,

128 F.3d 1358 (10th Cir. 1997)

United States v. Hython,

443 F.3d 480 (6th Cir. 2006)

United States v. Laughton,

409 F.3d 744 (6th Cir. 2005)

United States v. Leon,

468 U.S. 897,

104 S.Ct. 3405 (1984)

United States v. Nolan,

1999 F.3d 1180 (10th Cir. 1999)

United States v. Rowland,

145 F.3d 1194 (10th Cir. 1998)

United States v. Thomas,

989 F.2d 1252 (D.C. 1993)

Vv

United States v. Williams,

974 F.2d 480 (4th Cir. 1992)

STATUTES AND RULES

18 U.S.C. § 924 (c)1)(B)G)

21 U.S.C. § 841 (a)(1)

21 U.S.C. § 841 (b)(1)(B)

Sup. Ct. R. 10

Fed. R. Crim. Proc. 11(a)(2)

Fed. R. Crim. Proc. 11(e)(1)(c)

OTHER AUTHORITIES

U.S. Const. Fourth Amend

1

CITATIONS OF THE OFFICIAL AND

UNOFFICIAL REPORTS OF THE OPINIONS

AND ORDERS ENTERED IN THE CASE BY

THE COURTS

Appendix A

1. Order of the United States District Court of the

Eastern District of Tennessee denying

Defendant/Appellant Cornell P. Gunter’s Motion to

Suppress, August 14, 2006.

2. United States Court of Appeals for the Sixth

Circuit’s Order affirming the finding of the trial court

in its denial of the Defendant/Appellant Cornell P.

Gunter’s Motion to Suppress Search Warrant, dated

February 20, 2008.

BASIS FOR JURISDICTION BY THE

UNITED STATES SUPREME COURT

On August 14, 2006, the Honorable Curtis L.

Collier affirmed the magistrate’s denial of

defendant/appellant Cornell P. Gunter’s written

Motion to Suppress. The defendant subsequently

entered a conditional plea under Fed. R. Crim Proc

11(a)(2) and 11(e)(1)(c) and received a sentence not to

exceed 240 months, reserving the right to appeal the

specific issues preserved in his initial Motion to

Suppress. The Defendant remains incarcerated

through his appeal process.

On February 20, 2008, the United States Sixth

Circuit Court of Appeals affirmed the ruling of the

trial court.

2

Pursuant to Rule 10 of the Rules of the Supreme

Court, jurisdiction exists to review on a writ of

certiorari when the United States Court of Appeals

has entered a decision in conflict with the decision of

another United States Court of appeals on an

important matter. Further there is jurisdiction

pursuant to Supreme Court Rule 10 when the United

States Court of Appeals has so far departed from the

accepted and usual course of judiciai proceedings, or

has sanctioned such a departure by lower court, so as

to allow the United States Supreme Court to exercise

their supervisory power. The Defendant/Appellant

contends that in this instance that the affirmation by

the United States Court of Appeals for the Sixth

Circuit is in conflict with other United States Court of

Appeals decisions and is in conflict with decisions

issued within the United States Court of Appeals for

the Sixth Circuit.

Defendant/Appellant contends that this is a

sufficient statutory basis to confer jurisdiction upon

this Court to allow the Writ.

RELATIVE CONSITUTIONAL PROVISIONS,

TREATISES, STATUTES AND ORDINANCES

AND REGULATIONS

U.S.C.A. Const. Amend 4: 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 searched, and

the persons or things to be seized.

3

STATEMENT OF THE CASE

On September 28, 2005, Special Agent Bryan

Freeman (hereinafter “SA Freeman”) of the Tennessee

Bureau of Investigation appeared before McMinn

County Criminal Court Judge Bebb to apply for a

search warrant of the Defendant’s residence at 1484

County Road, Niota, Tennessee.

As a basis for the search warrant, the application

and affidavit of SA Freeman outlined his experience in

drug crimes, and his general knowledge that “drug

dealers” have weapons and drugs in their homes. SA

Freeman outlined a Septcmber 2005 conversation with

a confidential informant (hereinafter “CI”) who stated

he knew Cornell P. Gunter and could purchase cocaine

from him. On September 22, 2005, SA Freeman and

other agents met with the CI and overhead a phone

conversation the CI made to the Defendant where

arrangements were made for the CI to purchase

cocaine. The CI was outfitted with a non-recording

transmittal device and money to follow through with

the purchase. The CI then drove to Harper Johnson

Road in Athens, Tennessee, where the agents listened

while approximately two ounces of cocaine was sold to

the CI by the Defendant.

On September 27, 2005, SA Freeman and other

agents again listened to a phone call between the CI

and the Defendant. The CI was outfitted with another

non-recording transmittal device and money to

purchase drugs. SA Freeman followed the CI to

Athens, Tennessee. Observations by Task Force

Agents (TFA) Mike Hall and Sam McNeeley of 1484

County Road, 250, Niota, Tennessee, were ongoing in

4

the same tire period. At the Niota residence a black

male (later identified to be Mr. Gunter by an unknown

party) was observed entering the driveway in a dark

colored Cadillac. The automobile “remained at the

residence for two to three minutes and then exited the

premises.”'. The Cadillac driven by the Defendant was

then followed to a house on Harper Johnson Road in

Athens.’ Subsequent surveillance of another location

on Harper Johnson Road in Athens yielded a meeting

between the CI and the Defendant. The agents

listened to the meeting where Mr. Gunter distributed

approximately two ounces of cocaine to the CI.

Based on the information within the affidavit, the

search warrant was signed and executed upon Mr.

Gunter’s house. The warrant ultimately yielded

cocaine, a firearm, and money.

On December 13, 2005, an indictment was returned

from the grand jury in the Eastern District of

Tennessee charging Mr. Gunter with the principle

offenses of possession with intent to distribute more

than five grams of cocaine and possession of a short-

barreled shotgun in furtherance of a drug trafficking

crime, under 21 U.S.C. 841(a)(1) and (b)(1)(B) and 18

U.S.C. 924 (¢)(1)(B)(i).

‘The application and affidavit give no indication that any person

" . (. e P

ever exited the vchicle or entered the residence in Niota

* The application and affidavit give no indication that any person

ever exited the vehicle or entered the residence on Harper

Johnson Road in Athens

5

On March 27, 2006, the initial Motion to Suppress

was filed on behalf of Mr. Gunter in the United States

District Court for the Eastern District of Tennessee

alleging the confidential informant against him was

not a reliable source and that the search warrant

against his house was not based on proper probable

cause. The Motion to Suppress was denied by the

magistrate on April 18, 2006. A timely objection to the

magistrate’s Report and Recommendation was filed on

May 2, 2006. On August 14, 2006, the trial judge

issued a Memorandum and Order adopting the

magistrate’s Report and Recommendation.

Mr. Gunter entered a guilty plea which reserved

his ability to appeal the specific issues raised in his

Motion to Suppress on September 29, 2006. He was

then sentenced on February 22, 2007, with sentences

of 120 months on counts 3 and 4 to be served

consecutively, for a total effective commitment to the

Bureau of Prisons for 240 months.

On February 20, 2008, the United States Sixth

Circuit Court of Appeals affirmed the ruling of the

trial court. The Sixth Circuit found that the

confidential informant in this instance was deemed

reliable through his ability to conduct controlled buys

with the Defendant. The Sixth Circuit further found

that a nexus between Mr. Gunter’s drug dealing and

his residence was established through the information

of SA Freeman in the search warrant application

attesting to his experience in investigating drug crimes

and the well-known fact that drug dealers are

reasonably known to keep drugs in their residence.

Minding probable cause on the search warrant, the

Sixth Circuit did not approach the issue of good faith.

6

ARGUMENT AND AUTHORITY TO SUPPORT

GRANTING A WRIT OF CERTIORARI

Pursuant to Rules of the Supreme Court, Rule 10 it

is provided that:

The following, although neither controlling nor

fully measuring the Court’s discretion, indicate

the character of the reasons the court considers:

(a) a United States court of appeals has entered

a decision in conflict with the decision of

another United States court of appeals on the

same important matter; has decided an

important federal question in a way that

conflicts with a decision by a state court of last

resort; or has so far departed from the accepted

and usual course of judicial proceedings, or

sanctioned such a departure by a lower court, as

to call for an exercise of this Court’s supervisory

power;

It is the defendant’s contention that this Petition

for Writ of Certiorari should be allowed on the

following basis: (1) that both the District Court and the

Circuit Court of Appeals for the Sixth Circuit in

determining that a sufficient nexus exists between the

items to be searched for and the place to be searched

is in conflict not only with another United States Court

of Appeals, but that there are conflicting decisions

concerning this point within the United States Court

of Appeals for the Sixth Circuit, including United

States v. Frazier, 423 F.3d 526 (6" Cir. 2005) and

United States v. Hython, 443 F.3d 480 (6 Cir. 2006).

Frazier and Hython take up the issue that in viewing

7

a search warrant upon a motion to suppress for lack of

probable cause, the Court must look to the four corners

of the warrant itself and no further to determine

whether or not a sufficient nexus existed between the

items to be searched for and the place to be searched.

In Frazier, a separate panel of the Sixth Circuit

addressed a drug case in which the case agent sought

six different search warrants, one of which was for the

defendant’s home. See Frazier at 530. The magistrate

instructed the officer to include in the affidavits

information that two of the buys by the confidential!

informant had been recorded. See Id. at 530. For

reasons not explained, the agent made changes to five

of the warrant applications, but not to the one for

defendant's home. See Id. at 530. In reviewing the

affidavit as submitted, the court found that it was

insufficient to establish probable cause. See Id. at 532-

33. However, the panel held that the search was saved

by the good-faith exception of United States v. Leen.

See Frazier at 534. While noting that United States v.

Laughton held that “the good faith exception to the

exclusionary rule does not permit consideration of

information known to a police officer, but not included

in the affidavit, in determining whether an objectively

reasonable officer would have relied on the warrant”,

the panel decided that “we interpret the holding in

Laughton as limited to answering the question that

this court, sitting en banc, explicitly left open in

Carpenter” (where the Court determined there must

be a nexus between criminal activity and the item

sought in search). See Frazier at 534-35, citing

United States v. Laughton, 409 F.3d 744, 751-52 (6""

Cir. 2005) and United States v. Carpenter, 360 F.3d

591, 594 (6" Cir. 2004). In other words, because this

8

case did not involve information that wasn’t presented

to the magistrate, the rule did not apply. The reason

for the exception is the panel’s perception that the

agent’s failure here didn’t amount to anything more

than “a scrivener’s error”. See Frazier at 535.

In justifying its decision, the panel noted,

“[Wle are unable to envision any scenario in

which a rule excluding from the Leon analysis

information known to the officer and revealed to

the magistrate would deter police misconduct. ...

Because a judge’s initial probable cause

determination is limited to the four corners of

the affidavit, (citation omitted) an officer has no

incentive to exclude from the _ affidavit

information that supports a finding of probable

cause only to reveal this information to the

magistrate by parole.”

See Frazier at 535.

This explanation betrays a naivete about the

realities of the search warrant process and challenges

thereto. The concern is not so much about whether the

officer will supplement the facts with oral information

at the time he applies for the warrant, but whether he

will lie about what information he knew and/or

conveyed to the magistrate when he is later challenged

in a suppression hearing. This would be the reason

that a written application is required in the first place

— so that one would know later exactly what (and no

more!) was presented to the magistrate. To allow

parole evidence to supplement the written application

throws the process open to widespread abuse. And, as

9

the Laughton panel noted, to allow into evidence proof

of what was in this officer’s mind, but not reduced to

writing, is inconsistent with the Leon “reasonable

officer” test, which is based on the four corners of the

affidavit. (citations omitted)

Mr. Gunter alleges that Frazier has little

application outside of the unusual and unique factual

circumstances on which it is based. The fact that it

involved a “scrivener’s error” and that the information

was included in the other five warrants will rarely, if

ever, be repeated. In Mr. Gunter’s case, there is

nothing in the record showing probable cause

information was omitted from the search warrant

affidavit. His case is distinguishable from Frazier by

the fact that the Magistrate is not allowed to jump to

conclusions through the reading of the warrant.

Specifically, the only tie between Mr. Gunter’s

residence and any alleged controlled buys is the

notation within the search warrant that Mr. Gunter’s

car stopped shortly in the driveway before he was

recorded in a drug deal at another location. One

cannot, and may not, read into the warrant that Mr.

Gunter exited his vehicle to obtain drugs. The warrant

simply does not say that, and makes no connection or

any other reference between drug dealing and Mr.

Gunter’s house. The Sixth Circuit made this very

assumption as shown on page 8 of its ruling:

This visit provided a neutral magistrate with a

substantial basis to conclude that’ the

Defendant may have stopped at his residence to

pick up some of his merchandise before meeting

his customer at another location. This evidence,

combined with the affiant’s statements that he

10

has. significant experience in_ narcotics

investigations, is sufficient to establish a nexus

between Defendant’s illegal activities and his

residence.

The Sixth Circuit’s ruling in Frazier should not be

taken as an open invitation to supplement search

warrant applications with inferences or even oral

evidence that bolsters an otherwise weak affidavit,

especially where that information was not even told to

the issuing magistrate at the time of the application

for the warrant. This would seem to be confirmed by

the Sixth Circuit’s decision in United States v. Hython,

443 F.3d 480 (6th Cir. 2006). In that case the district

court found the search warrant deficient as being

stale, but further found that the Leon good faith

exception applied and denied the motion to suppress.

The Court of Appeals held that despite the occurrence

of a single controlled buy at the residence, the lack of

recent information to measure whether or not the

residence was a fixed drug distribution point rendered

the warrant insufficient. It went on to hold that in

determining good-faith reliance by the officer, a court

can only consider the information in the four corners

of the document. The limited exception in Frazier did

not apply here to the inference that a recent controlled

buy indicates that more drugs will be found in the

location as there was no proof in the record that the

magistrate knew or was told when the controlled buy

took place.

The Sixth Circuit has no clear, static rule for when

probable cause is determined only through the four

corners of the warrant, as in Hython, or when the

Magistrate may use oral supplementation (or

11

inferences. as in Mr. Gunter’s case) to determine

probable cause as the Court found appropriate in

Frazier.

How strongly must a person’s residence be tied to

criminal activity to validate probable cause for a

search warrant? At least three of our sister circuits

have held in cases involving drug traffickers that

“observations of illegal activity outside of the home can

provide probable cause for the issuance of a search

warrant.” See United States v. Thomas, 989 F. 2d

States v. Williams, 974 R 2d 480, 481-82 (4th Cir.

1992)(per curiam) (upholding magistrate judge’s

determination of probable cause even though affidavit

did not contain any facts indicating drugs were located

at drug dealer’s residence); United States v. Angulo-

Lopez, 791 F. 2d 1394, 1399 (9th Cir. 1986)(despite

affidavit’s lack of direct evidence, probable cause

existed to search defendant’s residence based on

reasonable inference that suspected drug dealer would

keep incriminating evidence at his residence).

At the other end of the spectrum, the Tenth Circuit

has held differently from the law of their sister

circuits. The Tenth Circuit has upheld that there

must be a sufficient nexus between the place to be

searched and the items to be seized. See United States

v. Hargus, 128 F. 3d 1358, 1362 (10th Cir. 1997). The

Tenth Circuit has provided that the issuing magistrate

judge “may draw reasonable inferences from the

material provided in the warrant application.” See

United States v. Rowland, 145 F. 3d 1194, 1205 (10th

Cir. 1998). However, the Tenth Circuit in contrast to

other Circuit Courts of Appeals has not ever held that

12

“the mere observation of repetitive illegal drug activity

outside a suspect’s residence by itself is sufficient to

establish probable cause for a search of the suspect’s

residence.” See United States v. Nolan, 1999 F.3d

1180, 1183 (10 Cir. 1999). Further, the Tenth Circuit

in Rowland, at 1204 emphasized that “probable cause

to search a person’s residence does not arise based

solely upon probable cause that the person is guilty of

a crime. Instead there must be additional evidence

linking the person’s home to the suspected criminal

activity.”

More important to supporting the contention that

the Court should allow the writ in this instance is the

statement of the Court in Nolan, at 1184 as follows:

Given the state of the law in our circuit and the

differences of opinion it elicits, this panel

chooses not to decide in this instance whether

the affidavit in support of the search warrant

was sufficient to sustain the magistrate judge’s

finding that incriminating evidence would likely

be found inside Defendant Nolan’s residence.

Instead, we exercise our discretion to decide this

case under the good-faith exception to the

exclusionary rule established in United States

v. Leon, 468 U.S. 897, 1045S. Ct. 3405, 82 L. Ed.

2d 677 (1984), and leave for another day the

probable cause inquiry. (emphasis added)

In addition to his argument that the Sixth Circuit

lacks a clear line defining the parameters of inquiry in

a four-corners search warrant analysis for probable

cause, the language in Nolan makes it clear that there

is a split in the circuits in determining the probable

13

cause inquiry. The Gunter opinion, when compared

with other Sixth Circuit decisions, Tenth Circuit

Decisions and other sister courts proves that there is

conflict between the circuit courts concerning when

there is a sufficient nexus existing between the items

to be seized and the place to be searched. This is

sufficient to allow the Writ of Certiorari in this matter

pursuant to Rule 10 of the Rules of the Supreme

Court.

~ CONCLUSION

WHEREFORE, defendant Cornell P. Gunter

respectfully requests based upon the arguments

alleged herein that his Petition for Writ of Certiorari

be allowed.

Respectfully submitted,

T. SCOTT JONES, TN#014628

318 N. Gay St, Ste 210

Knoxville, TN 37902

(865) 546-2141

(865) 546-5777 facsimile

With the assistance of:

CORNELL P. GUNTER

41408-074

Federal Correction Institution — Manchester

PO Box 4000

Manchester, KY 40962