Gromowsky - Supreme Court Petition for Writ of Certiorari

8/14/2019 Gromowsky - Supreme Court Petition for Writ of Certiorari

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IN THE

SUPREME COURT OF THE UNITED STATES

JOHN DOE,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TOTHE 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.

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 courtanywhere in the Kansas City metropolitan area, please feel free to contact Mr. Gromowsky at:

The Gromowsky Law Firm, LLC1100 Main Street, Suite 2800Kansas City, Missouri 64105

(816) 842-1130www.kc-criminal-law.com

[THE CHOICE OF AN ATTORNEY IS AN IMPORTANT DECISION AND SHOULD NOT BE BASED SOLELY UPON ADVERTISEMENTS.]
http://www.kc-criminal-law.com/http://www.kc-criminal-law.com/http://www.kc-criminal-law.com/


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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unpublished.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 beviolated, and no Warrants shall issue, but upon probable cause,supported by Oath or affirmation, and particularly describing the placeto 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 petitioners 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 petitioners 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 witnesss proposed

testimony and a supplemental government response confirming the existence of the

prior search.

On XXXXXXX XX, XXXX, the magistrate issued his report and


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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 magistrates 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 courts

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 petitioners 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 courts ruling regarding the motion to

suppress. On XXXXXXX XX, XXXX, a panel of the Eighth Circuit Court of Appeals

upheld the lower courts ruling. By an order entered XXXXXXX XX, XXXX, the

appellate court denied petitioners 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

1 The affiant admitted during his suppression hearing testimony that people staying only afew minutes would be significant because it would indicate that the people were buyingnarcotics.


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the Kansas City, Missouri Police Departments 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 Attor neys

office and the Career Criminal Squad. 2 Prior to the execution of the search

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


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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 Attorneys Office, KansasCity Police Department, and federal law enforcement designed to combat violent crime inKansas City by targeting suspected gang members, drug traffickers, and other violentcriminals.


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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 vehicles 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 districtcourt created and the appellate court upheld a bright line rulestating that federal law enforcement agents detailed to a jointfederal-state task force under the supervision of a local policeagency shall be considered state actors for the purpose of determining whether there is significant federal involvement in theapplication 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 decisivefactor in determining the applicability of the Byars case is the actualityof a share by a federal official in the total enterprise of securing andselecting evidence by other than sanctioned means.

Lustig, 338 U.S. at 78-79.

3 Elkins v. United States, 364 U.S. 206 (1960), repudiated the silver platter doctrinealluded to in both Lustig and Byars , but it did nothing to effect analysis of federalinvolvement in a search.


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The Court in Byars warned:

[T]he court must be vigilant to scrutinize the attendant facts with aneye to detect and a hand to prevent violations of the Constitution bycircuitous and indirect methods. Constitutional provisions for the

security of person and property are to be liberally construed, and it isthe duty of the courts to be watchful for the constitutional rights of thecitizen, 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 petitioners

research likewise revealed no such precedent.

Creating a bri ght line rule that federal agents 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 Kans as City Police Departments 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 post-

9/11 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 Courts review.

II. Directly contrary to this Courts rulings in Lustig v. United States, 338 U.S. 74 (1949), and Byars v. United States, 273 U.S. 28 (1927), thelower courts found no significant federal involvement in thesearches 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

Attorneys 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 76-

77.

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 Lustigs 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 validoath as required by the Fourth Amendment to the United StatesConstitution 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 affiants 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 beviolated, and no Warrants shall issue, but upon probable cause,supported by Oath or affirmation, and particularly describing the placeto 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 reveredperson or thing, that ones statement is true or that one will be boundto a promise. The person making the oath implicitly invitespunishment if the statement is untrue or the promise is broken. Thelegal effect of an oath is to subject the person to penalties for perjury if the testimony is false.

BLACK S L AW D ICTIONARY , 8th Ed., 1101 (2004).


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Similarly, affirmation is defined as

[a] pledge equivalent to an oath but without reference to a supremebeing or to swearing; a solemn declaration made under penalty of perjury, but without an oath. While an oath is sworn to, an

affirm ation is merely affirmed, but either type of pledge may subjectthe 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 accuseds home is to be determined by the facts,not by rumor, suspicion, or guesswork. If the facts afford the legalbasis for the search warrant, the accused must take the consequences.But equally there must be consequences for the accuser to face. If thesworn accusation is based on fiction, the accuser must take the chanceof punishment for perjury.

Veeder, 252 F. at 418; see also United States v. Tortorello, 342 F.Supp. 1029, 1035

(S.D.N.Y. 1972), affd, 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 judg e. 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 courtsbelow ruled that the affiant in this case was entitled to rely upon theobservations and activities of fellow officers in his application for asearch warrant, even though the affiant was not a party to acommon 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 tha t [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 Nathanson 4 and Giordenello. 5 A police officerwho arrived at the suspicion, belief or mere conclusion thatnarcotics were in someones possess ion could not obtain a warrant.But he could convey this conclusion to another police officer, who couldthen secure the warrant by swearing that he had received reliable

information from a credible person that the narcotics were insomeones 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 Nathanson v. United States, 290 U.S. 41 (1933).5 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 courts ruling imper missibly 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 courtheld that a protective sweep was permissible, even though there wasno in-house arrest, the area swept was outside the boundaries of thescene of the search warrant, and the officers articulated noreasonable suspicion that a person posing a danger was hidden inthe 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). Petitioners

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

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


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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, 1087-

88 (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 acrime. Moreover, unlike an encounter on the street or along ahighway, an in-home arrest puts the officer at the disadvantage of being on his adversarys 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 individuals right to be secure in his home

and an arresting officers 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 i nside the confines of an arrestees 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 Courts 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 arrestees 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

presence 7 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

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


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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 arrestees 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 appellants 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. [Petitioners ] 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, appellants 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 appellants 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 r esponded: 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 governments witnesses did n ot 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 courts substitution of

its own speculated facts for the actual facts presented it, this case presents

important issues requiring th is Courts 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. GromowskyCounsel for Petitioner

The Gromowsky Law Firm, LLC1100 Main Street, Suite 2800Kansas City, Missouri 64105(816) 842-1130(816) 472-6009 [facsimile]

Dated: XXXXXXX XX, XXXX

Documents

Gromowsky - Supreme Court Petition for Writ of Certiorari