Gromowsky - Supreme Court Petition For Writ Of Certiorari

This pleading was prepared by Kansas City, Missouri, criminal defense attorney John G. Gromowsky. Case law cited in the pleading was valid at the time the pleading was filed; however, the law may have changed since then. If you have been charged with a criminal offense in state or federal court anywhere in the Kansas City metropolitan area, please feel free to contact Mr. Gromowsky at: The Gromowsky Law Firm, LLC 1100 Main Street, Suite 2800 Kansas City, Missouri 64105 (816) 842-1130 www.kc-criminal-law.com [THE CHOICE OF AN ATTORNEY IS AN IMPORTANT DECISION AND SHOULD NOT BE BASED SOLELY UPON ADVERTISEMENTS.]

IN THE SUPREME COURT OF THE UNITED STATES JOHN DOE, Petitioner, vs. UNITED STATES OF AMERICA, Respondent. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT PETITION FOR WRIT OF CERTIORARI Petitioner John Doe respectfully prays that a writ of certiorari issue to review the judgment of the United States Court of Appeals for the Eighth Circuit, rendered in this case on XXXXXXX XX, XXXX.

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OPINION BELOW The opinion of the United State Court of Appeals for the Eighth Circuit appears at Appendix A to the petition and is reported at United States v. John Doe, XXX F.3d XXX (8th Cir. 2006). The order of the United States District Court for the Western District of Missouri appears at Appendix B to the petition and is unpublished. JURISDICTION The United States Court of Appeals for the Eighth Circuit entered its judgment on XXXXXXX XX, XXXX. Petitioner filed a timely petition for rehearing, which the court denied on XXXXXXX X, XXXX. The jurisdiction of this Court is invoked under 28 U.S.C. §1254(1). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The Fourth Amendment to the United States Constitution provides: 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. Federal Rule of Criminal Procedure 41 provides, in relevant part, that at the request of a federal law enforcement officer: “a magistrate judge with authority in the district—or if none is reasonably available, a judge of a state court of record in the district—has authority to issue a warrant to search for and seize a person or property located within the district.” Fed. R. Crim. P. 41(b)(1) (2004). Federal Rule of Criminal Procedure 41 also requires that a search warrant be

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supported by a finding of probable cause based upon the affidavit or the testimony under oath of the applicant. Fed. R. Crim. P. 41(d)(1)-(3). STATEMENT OF THE CASE I.

Proceedings Below On XXXXXXX XX, XXXX, a federal grand jury returned a two count

indictment charging petitioner with one count of possession with intent to distribute cocaine base, in violation of 21 U.S.C. §§841(a)(1) and (b)(1)(C); and one count of possession of a firearm in furtherance of drug trafficking, in violation of 18 U.S.C. §924(c)(1)(A). Petitioner filed a motion to suppress evidence and statements derived from a search of petitioner’s residence and two searches of petitioner’s vehicle.

An

evidentiary hearing was had before the magistrate judge on XXXXXXX XX, XXXX, at which testimony was presented and the magistrate received into evidence all exhibits to petitioner’s motion to suppress. At the time of the hearing, a witness for petitioner was not available to be heard and an issue arose regarding whether a prior search of petitioner’s residence had occurred in 2002 based upon some of the same anonymous tips described in the application for the more recent search warrant. At the request of the magistrate, the parties supplemented the hearing record in writing with a stipulation regarding the missing witness’s proposed testimony and a supplemental government response confirming the existence of the prior search. On

XXXXXXX

XX,

XXXX,

the

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magistrate

issued

his

report

and

recommendation to deny petitioner’s motion in full.

Petitioner timely filed

objections to the report and recommendation. On XXXXXXX XX, XXXX, the district court issued its order adopting the magistrate’s findings and conclusions and denying petitioner’s motion to suppress. Pursuant to a written plea agreement, petitioner changed his pleas to pleas of guilty to both counts of the indictment on XXXXXXX XX, XXXX.

The plea

agreement specifically preserved petitioner’s right to appeal the district court’s ruling on petitioner’s motion to suppress. On XXXXXXX XX, XXXX, the district court entered a judgment sentencing

petitioner to consecutive terms of

incarceration of 21 months on Count One and 60 months on Count Two.

The

district court imposed no fine but ordered four years of supervised release and a $200.00 mandatory assessment. The district court had jurisdiction over petitioner’s prosecution pursuant to 18 U.S.C. §3231, in that petitioner was charged with violating laws of the United States. Petitioner timely appealed the district court’s ruling regarding the motion to suppress. On XXXXXXX XX, XXXX, a panel of the Eighth Circuit Court of Appeals upheld the lower court’s ruling. By an order entered XXXXXXX XX, XXXX, the appellate court denied petitioner’s Petition for Rehearing and for Rehearing En Banc. II.

Statement of Facts On May 2, 2005, Kansas City, Missouri Police Department Detective Robert

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Delameter presented a search warrant application to a Missouri state court judge requesting that a warrant be issued for 5236 XXXXXX, Kansas City, Missouri. Petitioner resided at 5236 XXXXXX beginning in May 2004. The search warrant application consisted of an affidavit signed by Detective Delameter alleging facts in support of probable cause to conduct the search. The affidavit stated that there had been five DRAGNET (i.e., citizen) complaints regarding suspected drug activity at the residence in question since June 2002.

Four of the complaints were filed

between June and August 2002, and one complaint was filed in December 2004. The affidavit also described the results of two trash pulls that occurred on April 8, 2005, and April 29, 2005. The trash pulls produced mailings addressed to three different people, including petitioner; two Missouri license plates registered to a fourth person; a blue pill purported to be ecstasy; a clear plastic bag containing a white residue that field tested positive for the presence of cocaine; twelve clear plastic baggies with the corners cut off and containing a green residue that field tested positive for THC; and four clear plastic bags containing multiple clear plastic bags. The affidavit was prepared by a detective other than the eventual affiant, Detective Delameter. The affiant knew of no activities the preparing detective took to obtain or to verify the information contained in the affidavit. The affiant was not involved in any investigation of petitioner or the alleged drug activity at 5236 XXXXXX and did nothing to verify any of the information contained in the affidavit. The search warrant affidavit contained factual inaccuracies, including: (1)

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there did not exist a DRAGNET report dated June 2, 2002, as reported in the warrant application; (2) the June 21, 2002, DRAGNET report did not state that visitors to the residence stayed for only a few minutes, as alleged in the affidavit;1 and (3) petitioner was never charged with discharging a firearm, as alleged in the affidavit. The search warrant application did not include significant information available to police at the time, including the fact that during the trash pull detectives recovered a probation report indicating that petitioner was being supervised by the State of Missouri and that he had not had a positive urinalysis test while on probation. Further, the affidavit did not include information that was available in police records maintained by the police department, including: (1) there was a fruitless execution of a search warrant at the residence in 2002, presumably based upon the four 2002 DRAGNET complaints; (2) at the time of his arrest for second degree assault and unlawful use of a weapon in March 2004, petitioner did not reside at the residence in question; and (3) the supposed aggravated assault and discharge of a firearm charges stated in the affidavit were actually charges of Second Degree Domestic Assault, a class C felony, and Unlawful Use of a Weapon, Exhibiting, a class D felony, for which petitioner was placed on probation. The state court judge issued the search warrant on May 2, 2005, authorizing a search of the residence at 5236 XXXXXX for drugs, firearms, currency, and related documents. After the search warrant was obtained, it was turned over to The affiant admitted during his suppression hearing testimony that people staying only a few minutes would be significant because it would indicate that the people were buying narcotics. 1

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the Kansas City, Missouri Police Department’s Career Criminal Squad for execution. The Career Criminal Squad is a joint federal-state task force made up of six police detectives and eight federal agents. It is supervised by a police sergeant. According to suppression hearing testimony, prior to the execution of the search warrant, the Career Criminal Squad was investigating petitioner for his alleged association with a criminal street gang being investigated by the squad. The squad was also investigating petitioner for the alleged sale of narcotics. Finally, the squad was investigating petitioner because other police units had provided information to the squad that petitioner and others were allegedly involved in continuous crime in the community. All members of the squad, including the federal agents assigned to it, were involved in the investigation of the criminal street gang and petitioner. The squad conducted numerous hours of briefings regarding the activities of the criminal street gang and petitioner. The assistant United States Attorney who prosecuted this case was involved in the briefings. The assistant United States Attorney who prosecuted this case would have shared with the squad information learned about the criminal street gang during proffers made by other people arrested. There was a two-way exchange of information between the assistant United States Attorney’s office and the Career Criminal Squad.2

Prior to the execution of the search

It is worthy of note that the sergeant in charge of the Career Criminal Squad was asked on cross-examination whether the police department or the United States Attorney’s Office had a code name or operation name related to the investigation of the criminal street gang and petitioner, and the sergeant said there was not. However, after petitioner was sentenced, the United States Attorney’s Office published a press release indicating that petitioner’s was the first case charged under the VIPER program. According to the press 2

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warrant, the sergeant in charge of the joint squad notified the assistant United States Attorney who prosecuted this case about the search warrant, although at that time no decision had been made regarding whether federal charges would be pursued against petitioner. The Career Criminal Squad used the search warrant as an opportunity to search petitioner’s residence because the squad had an interest in petitioner. On May 6, 2005, the search warrant was executed by members of the Career Criminal Squad with the support of a police department tactical squad. Prior to the execution of the search warrant, no one from the Career Criminal Squad did anything to check the veracity of the information contained in the search warrant. Four of the six members of the squad who searched the residence at 5236 XXXXXX were federal agents. When the search warrant was executed, petitioner’s car was parked on the street in front of the residence to be searched. All four tires of the vehicle were in the street as opposed to any part of the vehicle being on the property containing the residence. Petitioner was leaning in or along side the passenger door of the car at the time the search warrant was executed. An officer testified that as the police approached, he believed petitioner was leaning into the car.

According to the

officer, petitioner leaned inside the car for approximately three to five seconds and then complied with police commands.

release, VIPER is a joint initiative between the United States Attorney’s Office, Kansas City Police Department, and federal law enforcement designed to combat violent crime in Kansas City by targeting suspected gang members, drug traffickers, and other violent criminals.

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After the residence was cleared by the tactical squad, it was decided that the vehicle should be cleared “to secure for persons.” The vehicle had heavily tinted side and rear windows. The officers could see through the front windshield, but could not see behind the driver seat from the front of the vehicle. The officers testified that they were not to be able to see through the side windows, even with the use of a flashlight and at a distance of a foot to eighteen inches. The officer at the rear of the vehicle did not attempt to go up to peer into the back window. Also, he did not see the portion of the tinting on the rear window that was torn and provided no tinting at all. Prior to conducting the warrantless search of the vehicle, no one saw anyone inside the vehicle, no one saw anyone get into or out of the vehicle, no one reported seeing a drug transaction occurring, and no one saw or heard any indication that someone was hiding in the vehicle. A special agent of the Federal Bureau of Investigation assigned to the Career Criminal Squad participated in the warrantless search of the vehicle by taking petitioner’s keys from him for use in unlocking the vehicle’s door. No one asked petitioner for consent to search his vehicle. As a result of the warrantless search of the vehicle, a federal agent recovered the drugs and weapon that became the basis of the charges contained in the indictment. Because of the discovery of the drugs and weapon, Career Criminal Squad agents arrested and interviewed petitioner. After the warrantless search of the vehicle, a Career Criminal Squad detective applied for a state search warrant to search the car. The only alleged

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facts of import in the search warrant application were the discovery of the gun and apparent drugs in the vehicle during the warrantless search. The application did not request permission to recover documents or photographs, and the warrant did not authorize a search for same. All that was recovered during the search of the vehicle were documents and a photograph, none of which were related to any criminal activity. In applying for the second search warrant, the detective made no effort to locate a United States magistrate to review the application for the warrant. REASONS FOR GRANTING THE PETITION I.

Contrary to the guidance of Lustig v. United States, 338 U.S. 74 (1949), and Byars v. United States, 273 U.S. 28 (1927), the district court created—and the appellate court upheld—a bright line rule stating that federal law enforcement agents detailed to a joint federal-state task force under the supervision of a local police agency shall be considered state actors for the purpose of determining whether there is significant federal involvement in the application for and execution of a search warrant. Lustig v. United States, 338 U.S. 74 (1949), and Byars v. United States, 273

U.S. 28 (1927),3 both generally stand for the proposition that if there is federal involvement in a search, then federal principles governing search and seizure should be applied. In Lustig, the Court explained that the crux of the doctrine related to federal participation is that a search is by a federal official if he had a hand in it. . . . The decisive factor in determining the applicability of the Byars case is the actuality of a share by a federal official in the total enterprise of securing and selecting evidence by other than sanctioned means. Lustig, 338 U.S. at 78-79. Elkins v. United States, 364 U.S. 206 (1960), repudiated the “silver platter” doctrine alluded to in both Lustig and Byars, but it did nothing to effect analysis of federal involvement in a search. 3

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The Court in Byars warned: [T]he court must be vigilant to scrutinize the attendant facts with an eye to detect and a hand to prevent violations of the Constitution by circuitous and indirect methods. Constitutional provisions for the security of person and property are to be liberally construed, and “it is the duty of the courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.” Byars, 273 U.S. at 248, citing Boyd v. United States, 116 U.S. 616, 635 (1886). Here, petitioner argued in his motion to suppress that the search warrants at issue were obtained in violation of Federal Rule of Criminal Procedure 41, which governs the application for and approval of search warrants in investigations that are federal in character.

Petitioner argued that because the investigation of

petitioner was conducted by a joint federal and state unit and because all searches in the case heavily involved federal agents, the investigation was federal in character. Accordingly, a federal magistrate was required to issue the underlying warrants. The appellate court held that the district court did not err in finding that because “federal officers participated in the search only in their capacity as permanent members of a KCPD task force, there was no significant federal involvement and, hence, no requirement under Rule 41 to apply to a federal magistrate judge for the search warrant.” Appendix A, p. A-6. Neither the district court nor the panel cited any case law to support this conclusion, and petitioner’s research likewise revealed no such precedent. Creating a bright line rule that federal agent’s are stripped of their federal status simply because they are assigned to a joint task force under the supervision

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of a state law enforcement agency is contrary to Lustig and Byars and ignores the purpose of forming such task forces in the first place. The whole purpose of forming joint task forces is to make available to the investigating agency the particular expertise of the various members and the resources of their assigning federal agencies. In other words, the Kansas City Police Department’s Career Criminal Squad obtained the services of the various federal agents involved in this case so that the squad could exploit their knowledge and experience as well as the resources of the federal agencies from whence they came. Worse, a bright line rule stating that federal agents are not federal agents if assigned to a state task force usurps the ability of federal courts to scrutinize the attendant facts with an eye to detect and a hand to prevent violations of the Constitution by circuitous and indirect methods. Byars, 273 U.S. at 248. This is true, because a bright line rule takes the issue of federal participation in a search out of the hands of the court. Given the proliferation of joint task forces in the post9/11 era, it establishes a dangerous precedent to strip federal agents of their status and sets the stage for the circumvention of more restrictive federal requirements related to the issuance and execution of search warrants.

Cf. United States v.

Tavares, 223 F.3d 911, 916 (8th Cir. 2000). Accordingly, petitioner respectfully suggests that this case presents an issue of significant national importance, which is appropriate for this Court’s review. II.

Directly contrary to this Court’s rulings in Lustig v. United States, 338 U.S. 74 (1949), and Byars v. United States, 273 U.S. 28 (1927), the lower courts found no significant federal involvement in the searches at issue.

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As stated above, Lustig v. United States, 338 U.S. 74 (1949), and Byars v. United States, 273 U.S. 28 (1927), stand for the general proposition that if there is federal involvement in a search, then federal principles governing search and seizure should be applied. In the courts below, it was held that even if federal agents are not stripped of their federal status by joining joint federal-state task forces under the supervision of state police agencies, there was no significant federal involvement in the instant case and federal rules regarding search and seizure need not be applied. These rulings are directly contrary to the mandates of Lustig and Byars. Here, (1) federal agents actively participated in the investigation of petitioner and a street gang known as the 51st Street Crips; (2) the assistant United States attorney who prosecuted the case participated in briefings related to the investigation; (3) there was a two-way exchange of information regarding the 51st Street corridor investigation between the joint task force and the United States Attorney’s Office; (4) the joint task force notified the assistant United States Attorney about the search warrant in question prior to its execution; (5) four of the six members of the joint task force who executed the search warrant were federal agents; and (6) a federal agent recovered the contraband that led to the federal indictment of appellant. By way of comparison, in Lustig, a secret service agent received calls from the police and from a hotel manager indicating that counterfeiting laws were being violated in a room at the hotel. The agent conducted a preliminary investigation at

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the hotel, looking through the keyhole and speaking to a chambermaid. The agent became convinced that counterfeiting was occurring, but he lacked sufficient cause to search the room. Lustig, 338 U.S. at 75-76. The agent reported his belief to the police, who, in turn, took up the gauntlet and obtained an arrest warrant for the gentlemen in the hotel room in question, charging them with violating a local ordinance making it a crime for known criminals not to register with police within twenty-four hours of coming to town. The police obtained a key to the hotel room, and upon discovering the suspects absent, searched the room and the luggage stored therein. Finding evidence of counterfeiting, the police summoned the secret service agent to the scene. Id. at 7677. After arriving at the hotel, the secret service agent examined the evidence of counterfeiting.

When Lustig and his associate arrived at the hotel, they were

searched and evidence of counterfeiting found on them was given to the agent. Eventually, all of the evidence obtained at the scene was turned over to the custody of the agent. Id. at 77. The Court began its analysis by accepting as fact that the secret service agent did not request the search, did not act as the moving force behind it, and the police did not undertake the search to help enforcement of a federal law. Id. at 78. The Court surmised that had the secret service agent accompanied the police to the hotel, his participation would not be open to question. Regardless of any lack of initial involvement, the Court found that the agent shared in the total enterprise of

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securing and selecting evidence.

Accordingly, his involvement invoked federal

principles requiring the suppression of the evidence recovered at the hotel. Id. at 78-80. In the instant case, the participation of federal agents was much greater than the participation of Lustig’s secret service agent. Despite this, the lower courts found no significant federal involvement. This conclusion is directly contrary to Lustig and Byars. Because the appellate decision is a reported decision, it now acts as precedent in the courts of the Eighth Circuit and advises courts in other circuits. Therefore, there is a real risk that the doctrine set out in Lustig and Byars will be diluted by future courts relying upon the appellate decision in this case. The Fourth Amendment principles at issue are too significant to permit this dilution. Therefore, petitioner prays that this Court grant this petition and reverse the decision below. III.

The initial search warrant application was not supported by a valid oath as required by the Fourth Amendment to the United States Constitution and Federal Rule of Criminal Procedure 41. In this case, an investigating officer prepared an affidavit in support of a

search warrant application. He then handed the affidavit off to another officer who had no involvement in the investigation and no personal knowledge of any of the facts or conclusions described in the affidavit. This second officer presented the search warrant application to a judge, purportedly swearing an oath in the process. The issue raised by this process is whether an officer may make a valid oath, as required by the Fourth Amendment, if he is not involved in the police investigation

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and has not obtained through other means personal knowledge regarding information contained in a search warrant application. Regarding this issue, the lower courts held that the affiant’s oath was valid because he was entitled to rely upon the information passed to him by a fellow officer. Appendix A, p. A-9. Essentially, the lower courts wrongly concluded that there was a valid oath simply because they also believed there was a proper showing of probable cause. This conclusion puts the cart before the horse. The lower courts should have first looked at whether there was a valid oath before ever reaching the issue of probable cause. The Fourth Amendment to the United States Constitution states: 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. U.S.C.A. Const., Amend. IV. The requirement for an oath or affirmation is adopted in Federal Rule of Criminal Procedure 41, as well. See Fed. R. Crim. P. 41(d)(1)-(3) (2004). An oath or affirmation is invalid if it does not carry with it the risk of punishment. “Oath” is defined as [a] solemn declaration, accompanied by a swearing to God or a revered person or thing, that one’s statement is true or that one will be bound to a promise. The person making the oath implicitly invites punishment if the statement is untrue or the promise is broken. The legal effect of an oath is to subject the person to penalties for perjury if the testimony is false. BLACK’S LAW DICTIONARY, 8th Ed., 1101 (2004).

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Similarly, “affirmation” is defined as [a] pledge equivalent to an oath but without reference to a supreme being or to “swearing”; a solemn declaration made under penalty of perjury, but without an oath. While an oath is “sworn to,” an affirmation is merely “affirmed,” but either type of pledge may subject the person making it to the penalties of perjury. Id. at 64 (internal citation omitted). Repercussions for false swearing by a search warrant applicant have long been recognized by federal courts as a requirement for a valid oath. For example, in Veeder v. United States, 252 F. 414 (7th Cir. 1918), cert. denied, 246 U.S. 675 (1918), it was written: The inviolability of the accused’s home is to be determined by the facts, not by rumor, suspicion, or guesswork. If the facts afford the legal basis for the search warrant, the accused must take the consequences. But equally there must be consequences for the accuser to face. If the sworn accusation is based on fiction, the accuser must take the chance of punishment for perjury. Veeder, 252 F. at 418; see also United States v. Tortorello, 342 F.Supp. 1029, 1035 (S.D.N.Y. 1972), aff’d, 480 F.2d 764 (2nd Cir. 1973), cert. denied, 414 U.S. 866 (1973)(The requirement in the law of the oath of a responsible public officer to the showing of probable cause was to make the affiant legally responsible for any statements of fact relied upon by the Judge who issues the warrant.). With the standard in mind, the question becomes whether the affiant in the instant case subjected himself to the risk of punishment for perjury by presenting the search warrant application to the judge.

This Court has written that “[a]

witness testifying under oath or affirmation violates [the perjury] statute if she gives false testimony concerning a material matter with the willful intent to provide

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false testimony, rather than as a result of confusion, mistake, or faulty memory.” United States v. Dunnigan, 507 U.S. 87, 94 (1993)(citations omitted). Under this definition, it is clear that the affiant in this case could not be subjected to a perjury prosecution because even if all the facts in his affidavit proved false, there would be no willful intent to provide false testimony. As the affiant had no personal knowledge regarding the investigation and relied entirely upon his belief that his fellow officer would draft an accurate affidavit, the most that could be said of his actions is that any falsehoods presented by him were the result of negligence or mistake. This does not rise to the level of willful intent required to expose himself to an allegation of perjury. Because there is no exposure to potential punishment, there is, by definition and legal precedent, no valid oath or affirmation. Obviously, the requirement for a valid oath or affirmation in support of a search warrant was deemed so fundamental by the framers of the Constitution that they included it in the very text of the Fourth Amendment. Consequently, where, as here, the basic requirements of an oath or affirmation are not met, there is a per se violation of the Fourth Amendment, and the warrant must be quashed. Petitioner, therefore, prays that this Court take up this issue for review. IV.

Contrary to United States v. Ventresca, 380 U.S. 102 (1965), the courts below ruled that the affiant in this case was entitled to rely upon the observations and activities of fellow officers in his application for a search warrant, even though the affiant was not a party to a “common investigation.” As discussed above, the affiant for the primary search warrant in this case

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was not involved in the underlying investigation of petitioner and did not draft the affidavit presented to the reviewing judge. In United States v. Ventresca, 380 U.S. 102 (1965), this Court held that “[o]bservations of fellow officers of the Government engaged in a common investigation are plainly a reliable basis for a warrant applied for by one of their number.” Id. at 111. Relying on this precept, the appellate court ruled that the application for the search warrant was valid. Appendix A, p. A-9. Petitioner suggests that this ruling is contrary to Ventresca, in that the affiant in the instant case was not part of a common investigation.

Rather, he simply

presented the affidavit of another officer as his own. Admittedly, other than the language in Ventresca petitioner was hard pressed to find support for the contention that being a party to a common investigation is a requirement to the finding of probable cause. Indeed, in the cases reviewed by petitioner, it was typical that the search warrant affiant was involved in some fashion in the underlying investigation. One case that touched briefly upon the issue is Dudley v. United States, 320 F.Supp. 456 (N.D.Ga. 1970). There, an investigator in Atlanta received an affidavit detailing the investigation of an investigator in Miami. The Atlanta investigator incorporated the Miami affidavit into his own application for a search warrant. Id. at 457. The reviewing court wrote that if the Atlanta investigator simply presented the Miami affidavit without details of the related Atlanta investigation, the court would be “constrained to hold that the affidavit of another standing alone cannot form the basis for the issuance of a warrant.” Id. at 459.

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However, the lack of cases in the reports does not denigrate in any way the importance of requiring a search warrant affiant to first be a participant in the investigation. The potential dangers related to this scenario are apparent. First, and as examined supra, the affiant who knows nothing about the investigation cannot make a valid oath as required by the Fourth Amendment. Second, there is an increased risk that an overzealous or unscrupulous investigator can circumvent the system by using an officer unfamiliar with the investigation to present a search warrant application the investigator could not present himself. This type of risk was mentioned in Aguilar v. Texas, 378 U.S. 108 (1964), overruled by Illinois v. Gates, 462 U.S. 213 (1983), where it was written: To approve this affidavit would open the door to easy circumvention of the rule announced in Nathanson4 and Giordenello.5 A police officer who arrived at the “suspicion,” “belief” or “mere conclusion” that narcotics were in someone’s possession could not obtain a warrant. But he could convey this conclusion to another police officer, who could then secure the warrant by swearing that he had “received reliable information from a credible person” that the narcotics were in someone’s possession. Aguilar, 378 U.S. at 114 n.4. Whereas an affiant familiar with an investigation is in a position to discover and correct the problem of the overzealous or unscrupulous investigator, an affiant not involved in the investigation is likely to permit the problem to pass undetected. Third, an affiant who is unfamiliar with the investigation would not have the ability to detect and correct errors or omissions contained in the affidavit.

For

example, in this case the search warrant affidavit contained factual inaccuracies, 4 5

Nathanson v. United States, 290 U.S. 41 (1933). Giordenello v. United States, 357 U.S. 480 (1958).

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including:

(1) there did not exist a DRAGNET report dated June 2, 2002, as

reported in the warrant application; (2) the June 21, 2002, DRAGNET report did not state that visitors to the residence stayed for only a few minutes, as alleged in the affidavit; and (3) petitioner was never charged with discharging a firearm, as alleged in the affidavit. Also, the search warrant application did not include potentially relevant information available to police at the time, including (1) the fact petitioner was on supervised probation, and he had not had a positive urinalysis test while on probation; (2) there was a fruitless execution of a search warrant at the residence in question in 2002, presumably based upon the four 2002 DRAGNET complaints included again in the new search warrant application; (3) at the time of a prior arrest in March 2004, petitioner was not yet residing at the residence in question; and (4) the supposed aggravated assault and discharge of a firearm charges stated in the affidavit were actually charges of Second Degree Domestic Assault, a class C felony, and Unlawful Use of a Weapon, Exhibiting, a class D felony, for which petitioner was placed on probation. Had the affiant in this case been involved in the underlying investigation, he could have corrected these problems before presenting the affidavit drafted by his fellow officer to a judge. Just because one charged with a crime might eventually be able to challenge a defective affidavit, see e.g., Franks v. Delaware, 438 U.S. 154 (1978), it does not follow that it is sound Fourth Amendment policy to permit

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erroneous information to be presented to a judge in the first place.6 In light of the fact that the appellate court’s ruling impermissibly and imprudently expanded the policy set forth in Ventresca, petitioner respectfully prays that the petition be granted. IV.

Contrary to Maryland v. Buie, 494 U.S. 325 (1990), the appellate court held that a protective sweep was permissible, even though there was no in-house arrest, the area swept was outside the boundaries of the scene of the search warrant, and the officers articulated no reasonable suspicion that a person posing a danger was hidden in the area swept. There is a split among the various circuits regarding whether a protective

sweep is authorized outside the context of an in-house arrest. Prior to this case, the Eighth Circuit required an arrest scenario as a prerequisite of conducting a protective sweep. See e.g., United States v. Waldner, 425 F.3d 514, 517 (8th Cir. 2005).

However, in this case, the Eighth Circuit joined a growing majority of

federal appellate courts expanding the protective sweep doctrine beyond the context of an arrest, as required by Maryland v. Buie, 494 U.S. 325 (1990). Petitioner’s research indicates that of the circuits to address the issue, only the Ninth Circuit and Tenth Circuit still require an arrest. See United States v. Reid, 226 F.3d 1020, 1027 (9th Cir. 2000); and United States v. Torres-Castro, 470 F.3d 992, 997 (10th Cir. 2006). On the other hand, the First Circuit, Second Circuit, Fifth Circuit, Sixth Circuit, and Seventh Circuit have adapted Buie to reach beyond arrests. See United States v. Martins, 413 F.3d 139, 150 (1st Cir. 2005), cert. denied, 126 S.Ct. 644

This issue may prove especially important to a visitor at the scene of the execution of a search warrant who might lack standing to contest the search warrant that brought arresting officers to the scene. 6

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(2005); United States v. Miller, 430 F.3d 93, 98 (2nd Cir. 2005), cert. denied, 126 S.Ct. 2888 (2006); United States v. Gould, 364 F.3d 578, 584 (5th Cir. 2004), cert. denied, 543 U.S. 955 (2004); United States v. Taylor, 248 F.3d 506, 513 (6th Cir. 2001), cert. denied, 543 U.S. 981 (2001); and Leaf v. Shelnutt, 400 F.3d 1070, 108788 (7th Cir. 2005). In Buie, this Court held that the “Fourth Amendment permits a properly limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief based upon specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Buie, 494 U.S. at 337. In reaching its decision, this Court noted that [a] protective sweep . . . occurs as an adjunct to the serious step of taking a person into custody for the purpose of prosecuting him for a crime. Moreover, unlike an encounter on the street or along a highway, an in-home arrest puts the officer at the disadvantage of being on his adversary’s “turf.” An ambush in a confined setting of unknown configuration is more to be feared than it is in open, more familiar surroundings. Id. at 333. Buie struck a balance between an individual’s right to be secure in his home and an arresting officer’s need to be protected. In striking the balance, this Court noted that placing someone under arrest was of a more serious nature than other citizen-police encounters. Additionally, this Court recognized the danger inherent in placing an officer inside the confines of an arrestee’s home. Neither of these conditions was present in this case, which demonstrates the risk to personal liberty associated with permitting the lower courts to expand upon this Court’s limited

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ruling. Further, it was factually inappropriate for the appellate court to expand the Buie protective sweep doctrine in the case at bar. Here, the protective sweep at issue took place in a car parked on the street adjacent to the scene of the execution of a search warrant. Aside from the fact that the vehicle was obviously not within the confines of an arrestee’s house, the police encountered petitioner in the front yard of his residence. Not only was he secured by police by the time the protective sweep took place, but his house had already been swept by the tactical team assisting in the execution of the warrant. Additionally, the overwhelming police presence7 certainly limited the risk of an ambush by anyone concealed in the car. Even if the various circuits of the majority are correct in concluding that a Buie protective sweep may rightly occur outside the context of an arrest, permitting such a sweep outside a house and outside the boundaries of where police had a right to be certainly stretches the protective sweep doctrine well beyond what must have been contemplated by this Court. In the event the Court concurs with the lower court that a protective sweep during a search warrant execution may rightly take place in a car off the property to be searched, petitioner prays that this Court clarify whether an appellate court may rightly create its own justification for a protective sweep in the absence of specific facts articulated by officers at the scene. As stated above, a broad protective sweep of an area outside the immediate

Six members of the Career Criminal Squad were assisted by a six member tactical team in securing the scene. 7

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vicinity of the arrest is only permitted “when the searching officer possesses a reasonable belief based upon specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Buie, 494 U.S. at 337. The arrestee’s dangerousness and past activities are not appropriate facts to consider when determining whether the arresting officer reasonably believes that someone else is present and posing a danger. See e.g., United States v. Colbert, 76 F.3d 773, 777 (6th Cir. 1996). Here, the appellate court erred in finding the existence of circumstances to justify a protective sweep of appellant’s vehicle. Indeed, in reaching its result, the court impermissibly used information irrelevant to the inquiry and created facts that are contrary to both the actual circumstances and the testimony of law enforcement officers at the scene. The circumstances used by the court to justify the protective sweep were: (1) officers were aware that petitioner was a resident of the premises, had been implicated by anonymous tip as being involved in a previous shooting, and had a previous weapons conviction; (2) officers were aware that the warrant was based upon probable cause to believe that drugs were being sold at the residence, an enterprise that often involves drive-up transactions and the presence of firearms; and (3) petitioner leaned into his vehicle for a few seconds as officers arrived, permitting the officers to believe that petitioner was conducting a drug transaction with someone within the vehicle. Appendix A, p. A-11. The first justification stated above is irrelevant to the analysis regarding a

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protective sweep. “[Petitioner’s] dangerousness is not germane to the inquiry into whether the police may conduct a protective sweep in response to a reasonable suspicion of a threat from some other person inside the [vehicle].” Colbert, 76 F.3d at 777 (emphasis theirs). Therefore, appellant’s alleged history of dangerousness was not properly considered. The second and third factors considered by the appellate court must be taken together, in that the court combined them to conclude that a reasonably prudent officer could believe that as officers approached the premises, petitioner was conducting a drive-up drug transaction with someone in the vehicle to be searched. This conclusion is contrary to the actual facts of this case. First, the officers and federal agents involved in the warrantless search knew before the search that the vehicle belonged to appellant and was not an unknown vehicle that had been driven to the property to conduct a drug transaction. After all, they took the keys to the vehicle from appellant’s pocket to unlock its doors and gain entry.

More

importantly, however, during the suppression hearing a government witness admitted that to the extent he speculated petitioner may have been conducting a drug transaction, he believed the drug transaction was occurring between petitioner and two other persons standing in the yard outside the vehicle. As a final matter, both government witnesses who testified as to the protective sweep admitted that no one at the scene saw anyone get into or out of the vehicle, no one saw anyone inside the vehicle, no one heard anyone inside the vehicle, and no one saw or heard any other indication that someone was hiding

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inside the vehicle. When asked: “Was there any indication at all to your knowledge from anybody [at the scene] that there was anybody inside the vehicle?”, an officer involved in the warrantless search responded:

“No, sir.” The assistant United

States attorney even told the magistrate at the hearing that the government would stipulate that none of the officers on the scene saw or heard anyone inside the vehicle. Because the government’s witnesses did not and could not articulate facts that would warrant a reasonable belief that someone was hidden inside the vehicle posing a danger, the appellate court clearly erred in finding the protective sweep of the vehicle was justified under Buie. Given the split among the circuits in general regarding Buie, the overly expansive application of Buie in this case, and the appellate court’s substitution of its own speculated “facts” for the actual facts presented it, this case presents important issues requiring this Court’s intervention. Accordingly, petitioner prays that his petition be granted. CONCLUSION This case presents the Court the opportunity to review multiple issues of significant national and Constitutional importance.

Wherefore, for the reasons

described above, petitioner respectfully prays that this Court grant his petition for writ of certiorari.

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Respectfully submitted, John G. Gromowsky Counsel for Petitioner The Gromowsky Law Firm, LLC 1100 Main Street, Suite 2800 Kansas City, Missouri 64105 (816) 842-1130 (816) 472-6009 [facsimile] Dated: XXXXXXX XX, XXXX

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