IN THE

SUPREME OF THE UNITED STATES

TERRANCE LOMBARD -PETITIONER (Your Name)

vs.

UNITED STATES OF AMERICA -RESPONDENT(S)

ON PETITION FOR A WRIT OF TO

•SIXTH CIRCUIT COURT OF (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 , BUT NOT CONSIDERED BY THE DISTRICT: COURT DURING THE SUPPRESSION HEARING, TO SUSTAIN THE DISTRICT COURT'S DENIAL OF TO SUPPRESS ?

IS APPELLANT DENIED DUE PROCESS WHERE AN APPEALS COURT USES AN IMPROPER STANDARD OF REVIEW TO DECIDE AN ISSUE PRESENTED ON ?

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 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 :

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.

[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 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 for a capital, or otherwise infamous without due process of ."

--3-- STATEMENT OF THE CASE Agents of the Drug Enforcement Agency (DEA) and state and local 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 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 convicted Lombard of both counts and found that over 1000 grams of heroin was involved in each count. (R. 51, Jury , @ 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 of 210 months . 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. mic.ciirr1' b' re it "Is a mms ainsi at detectirg eiithte of xlirnty crimimi wtxg1irg"). Mle slip Uns in 2013, by the tinE of tie sxEssic&1 iearirg in Oztther 2016, the legal larlsape had chargal arri so had the position of the police officers, ko intnxlced tie dc:ttrire of collective km- ledge to imnipil.ate the fats related to tie stop ard sisent "±g sniff". --5-- evidence obtained from the warrantless search of Lombard's vehicle, and 3) Lombard did not knowingly join the conspiracy alleged in the indictment. Appendix A. @ 4.

On March 19, 2018, a panel of the Sixth Circuit Court of Appeals entered an Order affirming the district court's judgment. Appendix A. Mr. Lombard filed a Petition for Rehearing with Suggestion for Rehearing En Banc, contending that

the panel's consideration of evidence from the trial that was not before the district court during the suppression hearing to affirm the denial of the motion to suppress, constituted a misapplication of the clearly erroneous standard, and that the Sixth Circuit Court of Appeals should review the case en banc to resolve a conflict in the circuit regarding this modified form of de novo review. Appendix C. On June

14,. 2018,. the petition for rehearing with suggestion for rehearing en banc was denied. id. Lombard now petitions this Court for a writ of certiorari and presents the questions set forth ante, for the Court consideration of the merits. REASONS FOR GRANTING THE PETITION

Because the failure to use the proper standard of review is inconsistent with the of this Court and implicates procedural due process, Lombard seeks a writ of certiorari. Further, the fact there is a conflict in Sixth Circuit Court

of Appeals, and other sister circuits, as to whether when conducting a clear error review of a district court's factual findings of theevidence adduced during a suppressionhearing, an appellate court can consider evidence from the subsequent

trial that was never contemplated by the in his or her factual findings and decision to deny the suppression, and still comport with dictates of clear error review.

This Court has long held that a factual finding of a district court may be overturned on appeal only if it is clearly erroneous. see e.g. Anderson v.City± of Bessemer, 470 U.S. 5642 567 (1985). This standard applies even where adopt proposed findings verbatim or consider .;documentary evidence that does not (• involve a credibility analysis by the judge. Id. @ 572-573, 574-575.

Further, in Ornelas v. United States, 517 U.S. 690 (1996), this Court resolved the conflict among the rcuits over the applicable standard of appellate review of a trial court's determination as to whether, for purposes of the Fourth Amendment,

law::-enforcement officers had reasonable suspicion to stop persons and probable

cause to make a warrantless search. Id. In Ornelas, this Court held that on appeal .the review, of the trial court's factual findings is for "clear error" and that

the ultimate questions of reasonable suspicion and probable cause to make a warrant-

less search should be reviewed de novo. Id. @ 699. In reaching this decision, the Court noted as follows:

The principal components of a determination of reasonable suspicion or probable cause will be the events which occurred leading up to the stop or search, and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonble police officer, amount to reasonable suspicion or to probable cause. The first part of the analysis involves only a determination of historical facts, but the second is a mixed question of law and fact: t[T]he historical facts are admitted or established, the is undisputed, and the issue is whether the facts satisfy the [relevant] statutory [or con- stitution] standard, or to put it another way, whether the rule of law as applied to the established facts is or is not violated."

(Ornelas, @ 696)(emphasis. added)(brackets in original) ;(quoting Pullman-Standard v.

Swint, 456 U.S. 273, 289, n. 19; 72 L.Ed.2d 66; 102 S.Ct. 1781 (1982).- In Pullman-Standard, the Court further noted that the application of the clear error standard is not excepted or excluded by "certain categories of factual findings from the obligation of a.court of appeals to accept a district court's findings

unless clearly erroneous." See Teva Pharms USA Inc. v. Sandoz, Inc, 574 U.S. -,

135 S.Ct. ; 190 L.Ed.2d 719, 728 (2014)(citing Pullman-Standard, 456 U:S. @ 287). Simply put by this Court, the clear error standard requires an appellate

court to ask whether the district court judge's -- view of the facts is clearly wrong, not to conduct a de novo review of the factual findings based on facts never considered by the district court judge. Cooper v. Harris, 197 L.Ed.2d 873, 484 (2017)("[W]e must not ask which court considering [a matter] had the better view. of the facts, but simply whether the court below',s view is clearly wrong."); see

also Teva Pharms USA Inc., 190 L.Ed.2d @ 725 ("[T]he function of an appeals court

reviewing the finding of a district court sitting without a jury ... is not to decide factual issues de novo."). (a). Sixth Circuit Panel's Decision: On appeal, the panel of the Sixth Circuit considering the question of whether the district court abused its discretion in denying Lombard's suppression motion correctly stated the following standard of review: "In reviewing an order denying a motion to suppress, we.review the district court's finding of fact for clear error and its legal con- clusion de novo. see United States v. Smith, 549 F.3d 3552 359 (CA 6, 2008). In considering the denial of a motion to suppress, we must review the evidence in the light most favorable to the government. see id..

ppendix A @ 5). MMOM (i). Misapplication of Clear Error Standard:

The problem with the application, of. this standard• is that the panel -considered facts adduced at the trial, which were not' offered, by testimony or. documentary evidence during the suppression hearing, thus never considered or otherwise contemplated by the judge. when wrote his opinion and order denying the suppression motion.

- The facts relied:Eontby. the-panel are set forth as follows: In this case, Lieutenant Shock had reasonable suspicion to stop Lombard because of his traffic violations ..., as well as reasonable suspicion under the collective knowledge doctrine to stop and detain Lombard for suspected drug trafficking. The DEA agents had reliable information, based on their wider investigation into Delo Toro's activities, that Del Toro planned to ship a quantity of narcotics to someone in Detroit The agents tracked the shipment to the industrial yard in Detroit and watched Del Toro remove PVC pipes from the semi-truck and trailer and pass them to Lombard. The agents were aware from their investigation that Del. Toro transported drugs in this manner. There agents therefore had reasonable suspicion to believe that Lombard took drugs into his possession and therefore to order Lieutenant Shock to stop Lombard. Lieutenant Shock testified that he had been briefed that a person was expected to take possession of a large quantity of narcotics, the DEA agents informed him that this person placed suspected contraband in the bed of his truck, and Lieutenant Shock saw the PVC pipes were covered in axle grease, which he knew was used to mask the odor of narcotics. Lieutenant Shock therefore had reasonable suspicion to detain Lombard for drug trafficking.

(Appendix A @ 5)(emphasis supplied).

On this evidence, the panel concluded that Lt. Shock had "reasonable suspicion" to detain Lombard for drug trafficking until the drug-detection dog arrived fifteen to thirty minutes later. Id. However, the facts considered by the panel and highlighted above to establish "collective knowledge" were not adduced from Lt. Shock's testimony at the suppression hearing. Specifically, at the suppression hearing Lt. Shock testified that he was employed by the Roseville Police Department, but assigned to Group 9 of the DEA task force. (Doc. 72, @ PID # 929). On the night of the search, Lt. Shock pulled over Lombrad's vehicle for failing to use his turn signal on two occasions. id. Q 931. Lt. Shock told Lombard that he had stopped him because of a traffic violation, and he received identification from Mr. Lombard, but could not recall from his supplemental police report if the documents provided were Lombard's driver's license, registration, or of insurance. Id. @ 939. Moreover, at the time of the stop, Lt. Shock had not been briefed on whether

the semi-tractor trailer had been stopped or searched. Id. @ 946. He also did not recall whether agents conducting surveillance at the industrial yard told him that the items exchanged from the semi- tractor into the bed of Lombard' s truck were PVC pipes. Id. In fact, hetestified that he "had received information from Special Agent Brian McCormick that Lombard was to take possession of:large- quantity of

narcotics . .. ," but Shock personally concluded that axle grease ... is a common

item used for masking the scent of narcotics." id. @ 933. In other words, Lt. Shock's testimony at the suppression hearing indicates that at the time of the stop he had not received any objective information that PVC pipes had been given to Lombard by Del Toro as he removed them from the axle

of the semi-tractor or that the PVC pipes contained narcotics. Id. @ 930-31. Rather, acting on a "hunch" he suspected that the grease on the PVC pipes was used to mask the ordor of narcotics, handcuffed Mr. Lombard, and escorted him to his

patrol car, then placed him into the back seat. Id. @ 941. While Lombard was detained in the back of the patrol car, Lt. Shock then radioed a member of the DEA Group 9, whom he could not recall the name of at the hearing, to request a

K-9 be sent to the scene to conduct a sniff search. Id. @ 939. As noted, these historical facts from the warrantless search, occurred in on March 22, 2013, prior to this Court's decision in Rodriguez. Lombard argued that the facts adduced at the trial, were designed to augment the "collective knowledge" theory the Government attempted to develop, post-hoc, to support the warrantless search conducted after the traffic stop, when Lt. Shock detained Lombard, then called for the K-9 to conduct an open air sniff. The panel's consideration of facts from the trial is inconsistent with a clear error review, as it involves facts never considered by the judge at the hearing. It is also in conflict with Sixth Circuit precedent. (i). Sixth Circuit Conflict: In United States v. McRae, 156 F.3d 708, 711 (CA 6, 1998), the Sixth Circuit held that a panel on review of a district court's denial of a suppression motion could not consider. trial testimony because it was not offered at the suppression hearing and did not renew.his motion to suppress at trial. id.(citing United States v. Thomas, 875 F.2d.559, 562 n. 2 (CA 6, 1989)). However, in United States v. Perkins, 994 F.3d 1184, 1189 (CA 6, 1993), a panel of the. Sixth Circuit held the exact opposite stating that it was "not restricted to considering evidence offered during the hearing on the motion to suppress ..., and thus it may consider evidence offered during the trial of a case as it may bear on the question of probable cause." Id. (citing cases from other circuits). The court in Perkins relied heavily on the Seventh Circuit decision in United States v. Loiijjnire, 761 F.2d 411, 418 (CA 77 1985), for the proposition that "evidence adduced only at trial may be used to sustain the denial of a motion to suppress." id. In 'Longmire, the government, as always, bore the burden of establishing by preponderance of the evidence that an officer had a reasonable suspicion justifying the seizure of two occupants of a vehicle in the context of a Thrrystop. Id. @ 418. At the suppression hearing .however, the government did not call the officer who stopped the vehicle,thus it did not present sufficient evidence to sustain the district court's denial of the motion to suppress on direct appeal. 14. On appeal, the Seventh Circuit decided it would consider facts from the trial, de novo, to sustain the district court's denial of the suppression motion. Id. The court reasoned that "because a defendant is entitled to have evidence suppressed only if it was unconstitutionally obtained, sustaining the denial of the motion on the basis of proof of constitutionality adduced at trial avoids a windfall reversal of the defendant's ." Id. (citing cases). The Court noted this approach presented several problem.-, Id-i One is that "[t]he defense, unaware that the of the search or seizure is still an open question in this sense, may

--U-- not challenge certain testimony which bolsters the suppression ruling but is not

particularly damaging on the question of defendant's , or innocence. And the

appellate court may be placed in the anomalous position of accepting as true testimony

that the trier of fatt (i.e. here jury) might have rejected on credibility grounds.

Prejudice to the accused may. be the inevitable result in some cases." Id. 2 418 (citing LaFave, Search and Seizure § 11.7, 2 1731)(emphasis added).

It is the second proposition highlighted above that undermines the "clear

error" standard of review and converts it into a de novo review. As noted by the thnjnire court, it was "more troublesome" that "[w]here the credibility and veracity of a relevant government witness have been put into question by defense counsel, an appeallate court perhaps should decline to consider the witness's testimony in reviewing the suppression-ruling,." Id. Nonetheless, the court still concluded that such a dilemma did not exist in that case. id.

Mr. Lombard submits that the determination of the credibility and veracity of material government witnesses is the exclusive province of the district court judge with regard to evidence adduced during the suppression hearing. Ornelas, supra. (holding that review of the trial court's factual findings is for "clear error" and that the ultimate questions of reasonable suspicion and probable cause

to make a warrantless search should be reviewed de novo); see also Anderson, supra. (noting crddibilityydeterminations are central to the district court and "due regard shall be given to the opportunity of the trial court to judge the credibility of

the witnesses."). As this Court has further noted, an appellate court's review of such factual finding of the trial court has been and continues to be only for clear error, not de novo review. Anderson, supra.; Teva Harm. USA, supra. 109

L.Ed.2d @ 719 ("[T]he function of an appeals court reviewing the findings of a district court sitting without a jury ... is not to decide factual issues de novo

• . ," rather it is to review for clear error). --12-- Lombard submits that the Sixth. Circuit's clear deviation from the clear error review of the facts adduced, and considered by the district court judge, to a de novo review of facts adduced during the trial where the jury was the trier of fact, ran afoul of this Court's precedent, thus warrants this Court to exercise

its supervisory powers to correct this error. Further, because this practice is not isolated to just this case, but is at odds with the precedent in the Sixth Circuit holding that trial evidence cannot be considered on review of a district court's denial of a motion to suppress, McRae, supra. 156 F3d @ 711; cf. Perkin,- supra. 994 F.3d @ 1189, and applied by the Seventh Circuit as well as others, the conflict can be best addressed by this Court on certiorari review.

Accordingly, for the reasons above, Lombard submits that his petition should be granted.

--13-- CONCLUSION

The petition for a writ of certiorari should be granted.

RespeelfuUy submitted,

Date: Sqtater 6, 2018

--14--