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Supreme Court of the United States IN THE SUPREME COURT OF THE UNITED STATES TERRANCE LOMBARD -PETITIONER (Your Name) vs. UNITED STATES OF AMERICA -RESPONDENT(S) ON PETITION FOR A WRIT OF CERTIORARI TO •SIXTH CIRCUIT COURT OF APPEALS (NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE) PETITION FOR WRIT OF CERTIORARI IJIi7 (Your Name) FCI ELKTON/P.O. BOX 10 (Address) LISBON, OH 44432 (City, State, Zip Code) / N/A (Phone Number) QUESTION(S) PRESENTED DID THE COURT OF APPEALS MISAPPLY THE CLEAR ERROR STANDARD BY CONSIDERING FACTS ADDUCED AT TRIAL, BUT NOT CONSIDERED BY THE DISTRICT: COURT DURING THE SUPPRESSION HEARING, TO SUSTAIN THE DISTRICT COURT'S DENIAL OF MOTION TO SUPPRESS EVIDENCE? IS APPELLANT DENIED DUE PROCESS WHERE AN APPEALS COURT USES AN IMPROPER STANDARD OF REVIEW TO DECIDE AN ISSUE PRESENTED ON APPEAL? DOES THE CLEAR ERROR STANDARD PERMIT A PANEL OF THE COURT OF APPEALS TO CONSIDER FACTS FROM TRIAL DE NOVO, IN ORDER TO SUSTAIN A DISTRICT COURT.'S DENIAL OF MOTION. TO SUPPRESS EVIDENCE? I ( ( LIST OF PARTIES [] All parties appear in the caption of the case on the cover page. [ ] All parties do not appear in the caption of the case on the cover page. A list of all parties to the proceeding in the court whose judgment is the subject of this petition is as follows: ( TABLE OF CONTENTS OPINIONSBELOW ........................................................................................................ 1 JURISDICTION.................................................................................................................... CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ................................. STATEMENTOF THE CASE ............................................................................................ REASONS FOR GRANTING THE WRIT .......................................................................... CONCLUSION.................................................................................................................... INDEX TO APPENDICES APPENDIX A: Opinion of the Sixth Circuit Court of Appeals. ( APPENDIX B: Opinionof United States District Court Denying Motion To Suppress. APPENDIX C: Opinion of the Sixth Circuit Court of Appeal -- Denying Petition for Rehearing. APPENDIX D: Transcript of the Suppression Hearing Held On October 26, 2016. APPENDIX E APPENDIX F TABLE OF AUTHORITIES CITED CASES PAGE NUMBER Anderson v. City Of Bessemer, 470 U.S. 564 (1985) .. 71 12 Cooper v. Harris, 197 L.Ed.2d 873 (2017) ...................................8 Orne1asv. United States, 517U.5.69O.(1996) ............... ....... .. Pullman-Standard v. Swint, 456 U.S. 273; 72 L.Ed.2d 66; 102 S.Ct. 1781 (1982)...............................................................8 Rodriguez v. United States, 135 S.Ct. 1609; 191 L.Ed.2d 492 (2015) ......5, 10 Teva Pharms USA Inc. v. Sandoz, Inc., 547 U.S. ; 135 S.Ct. ; 190 L.Ed.2d 719 (2014) . ....................................... 8, 12 United States v. Longmire, 761 F.2d 411 (CA 7, 1985) .......................11 United States v. McRae, 156 F.3d 708 (CA 62 1998) .......................11, 13 United States v. Perkins, 994 F.3d 1184 (CA 67 1993) ...................11, 13 United States v. Smith,-549 F.3d 355 (CA 61 2008) ............................8 ( United States v. Thomas, 875 F.2d 559 (CA 6, 1989) .........................11 IN THE SUPREME COURT OF THE UNITED STATES PETITION FOR WRIT OF CERTIORARI Petitioner respectfully prays that a writ of certiorari issue to review the judgment below. OPINIONS BELOW [X] For cases from federal courts: The opinion of the United States court of appeals appears at Appendix A to the petition and is [X] reported at 2018 U.S. App. LEXIS 6949 (No.17-1372) ; or, [] has been designated for publication but is not yet reported; or, [XI is unpublished. The opinion of the United States district court appears at Appendix B to the petition and is [(] reported at 2016 U.S. Dist. LEXIS 152489 (15cr200 or, [] has been designated for publication but is not yet reported; or, [I is unpublished. [ ] For cases from state courts: The opinion of the highest state court to review the merits appears at Appendix to the petition and is [ ] reported at ; or, [ ] has been designated for publication but is not yet reported; or, [ ] is unpublished. The opinion of the - court appears at Appendix to the petition and is [ I reported at ; or, [ ] has been designated for publication but is not yet reported; or, [ ] is unpublished. 1. JURISDICTION [X] For cases from federal courts: The date on which the United States Court of Appeals decided my case was March 19, 2018 [ ] No petition for rehearing was timely filed in my case. [X] A timely petition for rehearing was denied by the United States Court of Appeals on the following date: June 14, 2018. , and a copy of the order denying rehearing appears at Appendix C [ ] An extension of time to file the petition for a writ of certiorari was gTanted to and including (date) on _____________________ (date) in Application No. A______ The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1). [ ] For cases from state courts: The date on. which the highest state court decided my case was A copy of that decision appears at Appendix [1 A timely petition for rehearing was thereafter denied on the following date: and a copy of the order denying rehearing appears at Appendix [1 An extension of time to file the petition for a writ of certiorari was granted to and including (date) on _________________ (date) in Application No. .A_______ The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a). --2-- 'I 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, effects, against unreasonbale searches and seizures, shall not be violated, and now 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." The Fifth Amendment to the United States Constitution in, relevant part provides: "No person shall be held to answer for a capital, or otherwise infamous crime without due process of law." --3-- STATEMENT OF THE CASE Agents of the Drug Enforcement Agency (DEA) and state and local police officers in Phoenix, Arizona, were investigating Kenneth Del Toro's involvement in a narcotics conspiracy in which the conspirators transported drugs by putting them in PVC pipes, which in turn were hidden inside of the axles of semi-truck and trailer rigs. Through their investigation, agents learned that Del Toro planned to use this method to ship. drugs to someone in Detroit, Michigan. Agents reportedly tracked Del.Toro's shipment to an industrial yard in Detroit, where they saw Del Toro remove PVC ..pipes from the axles of the trailer and hand them over to Lombard. Lombard put the pipes. in the bed of his pick-up truck. Agents followed Lombard and directed Roseville Police Officer Lieutenant Brian Shock, who was a member of the interdiction team, to stop Lombard after he committed several traffic violations. Lieutenant Shock observed grease-convered PVC pipes in the truck bed as he approached Lombard. Lieutenant Shock detained Lombard and called for assistance from an officer with a drug-sniffing dog. Royal Oak Police Officer Richard Chipman arrived about fifteen minutes later. His dog alerted on the truck near the pipes. Lombard was arrested and his truck impounded. Agents discovered approximately eleven kilograms of heroin hidden inside of the pipes. Later, agents executed a search warrant on Lombard's house and found another eighty-one grams of heroin, a money counter, a digital scale, as suspected drug ledger, packaging materials, unlabeled pill bottles, and about $42,000 in cash. See Ex. A. Lombard was indicted for conspiracy and possession with intent to distribute heroin. He filed a pretrial motion to suppress the evidence seized by the agents during the traffic stop. Ahearing on the motion wastheld on Qotober 26, 2016. Lombard contended that the stop of. his vehicle, and its subsequent search were illegal based of a lack of reasonable suspicion and 9 lack of probable cause. In response, the Government contended that the. motion should be denied --4-- because: 1) a police officer stopped Lombard after a traffic infraction and had at least reasonable suspicion. that the vehicle contained evidence of drug trafficking; 2) the officer making the stop had probable cause to search the vehicle, and because a trained and certified drug dog indicated the vehicle contained drugs; and 3) in any event, there was probable cause to search the vehicle based on information from a wiretap and observations by law enforcement officer prior to the stop. see Appendix B. On November 3, 2016, the district court entered an Opinion and Order denying the motion to suppress, holding that the stop was justified by reasonable suspicion (the traffic violation and suspicion of drug trafficking), and that the canine sniff provided probable cause for the search. 1 Appendix B. Trial was held on November 16,2016, through November 18, 2016. The jury convicted Lombard of both counts and found that over 1000 grams of heroin was involved in each count. (R. 51, Jury Verdict, @ P11) # 377-78). On March 15, 2017, the sentencing hearing was held wherein the district court determined the applicable guideline range was 210-262.months based on an adjusted base offense level of 36, and a criminal history categroy of II. (R. 71, Senteix.ing, @ PID#,878). Over Lombard's objection to the Presentence Investigation Report, the district court, without specific findings, overruled the objections and imposed a sentence of 210 months imprisonment. Id. @ P11) # 898. Folloing the sentencing hearing defense counsel filed a timely Notice of Appeal. (R. # 629 PU) # 525). On appeal, Lombard raised three issues: 1) the sentence is procedurally un- reasonable due to a guideline miscalculation; 2) the court should have suppressed 11 It dmuld be mtal that the vthiele slip and srch in this case ocurrs1 before this Cwrt'S deis1ai in Bcxr1z v. United States 1M S.0. 1109; 191 L.Fd.al 492 (2)15)(mtix tInt a dog sniff is "rot fairly draterizth as pert of Ike officer's ,bffic.
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