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PETITIONER V No. 18- In the Supreme Court of the United States LAMARCUS THOMAS, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT PETITION FOR A WRIT OF CERTIORARI JUVAL O. SCOTT DANIEL R. ORTIZ ANDREA LANTZ HARRIS Counsel of Record OFFICE OF THE FEDERAL UNIVERSITY OF VIRGINIA PUBLIC DEFENDER SCHOOL OF LAW FOR THE WESTERN SUPREME COURT DISTRICT OF VIRGINIA LITIGATION CLINIC 401 E. Market St. 580 Massie Rd. Suite 106 Charlottesville, VA Charlottesville, VA 22903 22902 (434) 924-3127 [email protected] I QUESTION PRESENTED The good-faith exception to the exclusionary rule allows the admission of illegally obtained evidence if “the officers’ reliance on the magistrate’s determination of probable cause was objectively reasonable.” United States v. Leon, 468 U.S. 897, 926 (1984). What information may be considered in determining whether the officer’s reliance was reasonable “is a question that has split [the] circuits.” United States v. Knox, 883 F.3d 1262, 1271 (10th Cir. 2018). The question presented is: Whether a suppression court may consider (1) only information contained within the four corners of the warrant application, as the Ninth Circuit, Colorado, Maryland and South Carolina hold; (2) only that information plus any other information presented to the issuing magistrate at the time of the warrant application, as the Fifth, Sixth, Seventh, and Tenth Circuits hold; or (3) all information known by the officer at the time she applied for the warrant, even if she never disclosed it to the magistrate, as the Fourth, Eighth, and Eleventh Circuits and Arkansas, Kentucky, Louisiana, Nebraska, and Virginia hold— and further, even if, as the Fourth Circuit holds, the officer failed to disclose the information as a result of a departmental policy. II TABLE OF CONTENTS Page(s) Question Presented ................................................. I Table Of Authorities .............................................. V Opinions Below ...................................................... 1 Jurisdiction ............................................................ 1 Relevant Constitutional Provision ........................ 1 Introduction ........................................................... 2 Statement ............................................................... 2 A. Legal Background ....................................... 2 B. Factual and Procedural Background ......... 4 Reasons For Granting The Petition ...................... 9 I. The Decision Below Further Entrenches An Already Deep Split .......................................... 9 A. Three Circuits and Five State Supreme Courts Hold That All Information Known By The Officer When Applying For The Warrant May Be Considered .................... 10 B. Four Circuits Hold That Only Information Presented To The Issuing Magistrate May Be Considered ........................................... 14 C. One Circuit And Three State High Courts Hold That Only Information Presented Within The Four Corners Of The Affidavit And Warrant Application May Be Considered ................................................. 16 III TABLE OF CONTENTS Page(s) II. The Decision Below Violates The Fourth Amendment ................................................... 20 A. The Fourth Circuit’s Unwarranted Expansion Of The Good-Faith Exception Undermines The Core Protections Of The Fourth Amendment .................................. 20 1. The Fourth Circuit’s Rule Permits An End Run Around The Magistrate ....... 20 2. The Decision Below Weakens The Ex- Ante Check That Warrants Provide ... 22 B. The Fourth Circuit’s Rule Wrongly Turns The Good-Faith Exception Into A Subjective Inquiry ..................................... 24 C. Herring v. United States And Davis v. United States Also Require Exclusion In This Case ................................................... 30 III. This Case Presents An Ideal Vehicle For Resolving A Recurring Question Of Undeniable Importance ................................ 32 Conclusion ............................................................ 34 Appendices: Court of Appeals Opinion (Nov. 8, 2018) ....... 1a District Court Suppression Opinion (Dec. 15, 2016) ........................................................ 16a IV TABLE OF CONTENTS Page(s) District Court Suppression Order (Dec. 15, 2016) ........................................................ 49a Court of Appeals Denial of Petition for Rehearing En Banc (Dec. 7, 2018) .......... 50a District Court Judgment (Aug. 9, 2017) ...... 51a Transcript Excerpts From Suppression Hearing (Aug. 17, 2016) .......................... 74a V TABLE OF AUTHORITIES Page(s) Cases: Adams v. Commonwealth, 657 S.E.2d 87 (Va. 2008) ..................................................... 12, 13 Aguilar v. Texas, 378 U.S. 108 (1964) .................... 22 Anderson v. Creighton, 483 U.S. 635 (1987) .......... 13 Arizona v. Hicks, 480 U.S. 321 (1987) ................... 33 Ashcroft v. al-Kidd, 563 U.S. 731 (2011) ............... 27 Beck v. Ohio, 379 U.S. 89 (1964) ...................... 23, 27 Bond v. United States, 529 U.S. 334 (2000) ........... 26 Brigham City v. Stuart, 547 U.S. 398 (2006) ......... 26 Davis v. United States, 564 U.S. 229 (2011) .... 30, 31 Florida v. Jimeno, 500 U.S. 248 (1991) ................. 26 Graham v. Connor, 490 U.S. 386 (1989) ................ 27 Greenstreet v. State, 898 A.2d 961 (Md. 2006)....................................................... 16, 17, 19 Harlow v. Fitzgerald, 457 U.S. 800 (1982) ............ 25 Herring v. United States, 555 U.S. 135 (2009) ....................................................... 3, 30, 31 Illinois v. Gates, 462 U.S. 213 (1983) ..................... 26 Johnson v. United States, 333 U.S. 10 (1948) ....... 20 Katz v. United States, 389 U.S. 347 (1967) ...... 20, 23 Kyllo v. United States, 533 U.S. 27 (2001) ............. 33 Maryland v. King, 569 U.S. 435 (2013) ................. 33 VI TABLE OF AUTHORITIES Page(s) Missouri v. Seibert, 542 U.S. 600 (2004) ................ 24 Moore v. Commonwealth, 159 S.W.3d 325 (Ky. 2005) ..................................................... 11, 19 Moya v. State, 981 S.W.2d 521 (Ark. 1998) ..... 11, 12 People v. Miller, 75 P.3d 1108 (Colo. 2003) 16, 18, 19 People v. Reed, 56 P.3d 96 (Colo. 2002) .................. 18 Scott v. United States, 436 U.S. 128 (1978) ........... 26 Silverman v. United States, 365 U.S. 505 (1961) ................................................................. 33 Sims v. State, 969 S.W.2d 657 (Ark. 1998) ............ 11 State v. Adolphe, 441 S.E.2d 832 (S.C. Ct. App. 1994) ........................................... 17 State v. Edmonson, 598 N.W.2d 450 (Neb. 1999) ......................................................... 12 State v. Johnson, 395 S.E.2d 167 (S.C. 1990) ........................................ 16, 17, 18, 19 State v. Varnado, 675 So. 2d 268 (La. 1996) ............................................... 11, 13, 19 Steagald v. United States, 451 U.S. 204 (1981) ..... 21 United States v. Bynum, 293 F.3d 192 (4th Cir. 2002).................................................... 13 United States v. Calandra, 414 U.S. 338 (1974) ............................................................. 3, 23 United States v. Chadwick, 433 U.S. 1 (1977) ............................................................. 2, 20 VII TABLE OF AUTHORITIES Page(s) United States v. Frazier, 423 F.3d 526 (6th Cir. 2005).............................................. 14, 19 United States v. Houston, 665 F.3d 991 (8th Cir. 2012).................................................... 10 United States v. Hove, 848 F.2d 137 (9th Cir. 1988).................................................... 15 United States v. Knox, 883 F.3d 1262 (10th Cir. 2018).................................. 9, 14, 15, 19 United States v. Koerth, 312 F.3d 862 (7th Cir. 2002).............................................. 14, 15 United States v. Laughton, 409 F.3d 744 (6th Cir. 2005).................................................... 15 United States v. Lefkowitz, 285 U.S. 452 (1932) .... 21 United States v. Leon, 468 U.S. 897 (1984) ......................................................... passim United States v. Luong, 470 F.3d 898 (9th Cir. 2006).............................................. 16, 17 United States v. Maggitt, 778 F.2d 1029 (5th Cir. 1985)........................................ 14, 15, 19 United States v. Martin, 833 F.2d 752 (8th Cir. 1987).................................................... 13 United States v. Martin, 297 F.3d 1308 (11th Cir. 2002)............................................ 11, 12 United States v. Martinez-Fuerte, 428 U.S. 543 (1976) ................................................................. 23 VIII TABLE OF AUTHORITIES Page(s) United States v. McKenzie-Gude, 671 F.3d 452 (4th Cir. 2011) ............................................ passim United States v. Proell, 485 F.3d 427 (8th Cir. 2007).................................................... 10 United States v. Taxacher, 902 F.2d 867 (11th Cir. 1990).................................................. 12 Whiteley v. Warden, 401 U.S. 560 (1971) ............... 22 Whren v. United States, 517 U.S. 806 (1996) ... 25, 27 Wong Sun v. United States, 371 U.S. 471 (1963) ................................................................. 20 Constitutional and Statutory Provisions: U.S. Const. amend. IV .................................... passim 28 U.S.C. § 1254(1) ................................................... 1 Miscellaneous:
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