Rivas, Gerardo Tomas ( 2015 )

o?J/_pLJa
IN THE MATTER OF:
COURT OF CRIMINAL APPEALS DATE: ~ l~J- d OJ ;)_0/r;-
NO.(S) PD-0490-13 & PD-0491-13 GERARDO TOMAS RIVAS #-1766735
VACATED & REMANDED RECONSIDERATION
POWLEDGE UNIT T/C N - 64 ,,
2nd COURT OF APPEALS . 1400 FM 3452
NO.(S) 02-12-00062-CR & 02-12~00063-CR PALESTINE, TEXAS 75803 - 2350
JUDGEMENT ON REMAND AFFIRMED
IN THE COURT OF CRIMINAL APPEALS
RECEIVED OF TEXAS
JUl 2 7 2015 NO.(S) PD-0490-13 & PD-0491-13
, ..... ?OUlId. at SEPTEMBER 25,
2014, OPINION ON REMAND, PER CURIAM, at pg. 9).
Not only did the COURT OF APPEALS SECOND DISTRICT OF TEXAS enter into a CLEAR ABUSE
OF DISCRETIQN, they have enjoined into "A CONSPIRACY TO CONCEAL AND IGNORE STATE AND
FEDERAL LAW PRECEDENTS" with said conscious, intentional, and reckless MOVE / ORDER to
undermine the precedented RULE OF LAW, thereby, removing themselves from anv realm of
immunity and/or absolute immunity through said careless acts under COLOR OF JUDICIAL
OFFICE, COLOR OF LAW, AND ABUSE OF POWER in said commissions, with THE STATE OF TEXAS,
for the POLICE SEARCH IN VIOLATION OF THE FOURTH AMENDMENT, ART. I § 9 of TEX CONST.
WITH ADOPTED STATUTORY EXCLUSIONARY RULE TEX CODE CRIM PROC ART 38.23, MAGISTRATES
QUESTIONABLE JURISDICTION FOR WARRANT ISSTJANCE, AND SUPREME COURT CASF.S OF KYLT.O WITH
CONFIRMATION ADDRESSED IN JARDINES CASE, FOR "THEN BINDING PRECEDENTS SINCE 2001."
1
I
BACKGROUND
RELATOR was charged with two counts of possession of a controlled substance with
the intent to deliver. A dog sniff at his front door lead to the charges against him.
The SECOND DISTRICT COURT OF APPEALS did not have the benefit of JARDINES, accordingly
this TEXAS COURT OF CRIMINAL APPEALS GRANTED RELATOR'S PETITIONS FOR DISCRETIONARY
REVIEW, VACATED THE JUDGEMENTS of the SECOND DISTRICT COURT OF APPEALS and REMANDED
.these cases to the SECOND DISTRICT COURT OF APPEALS in light of JARDINES (RIVAS II,
NO.(S) PD-0490-13 & PD-0491-13, DELIVERED OCTOBER 23, 2013, Id. at per curiam, opin.)
(Publish).
OPINION ON REMAND, the SECOND DISTRICT COURT OF APPEALS, at·I. INTRODUCTION, Conclude
that JARDINES does not affect the outcome, and affirm (NO.(S) 02-12-00062-CR & 02-12-
00063-CR, per curiam, opin. delivered SEPTEMBER 25, 2014, Id. at *4, 9). With a final
conclusion, "Therefore, we conclude that, even excluding the dog sniff, the magistrate
could have reasonably found that the search warrant affidavit established probable
cause. (f.n. 5, Based on this conclusion, we do not reach whether JARDINES should apply
retroactively. See.Tex. R. App. P. 47.1.) III. CONCLUSION, Having considered our prior
opinion in light of JARDINES as directed by the COURT OF CRIMINAL APPEALS, we affirm
the trial court's judgement", Id. at *9, supra.
II
CASE(S) DISCUSSION
Based on RELATOR'S arrest for possession of the controlled'substances in the cases
supra, RIVAS II, Id., the STATE moved to adjudicate RELATOR'S guilt ln three prior drug
possession cases. RIVAS v STATE (RIVAS I), NO.(S) 02-11-00203-CR, 02-11-00204-CR, and
02-11-00205-CR, 2012 WL 5512450, at *1-2, 5 (Tex. App.-Fort Worth, Nov. 15, 2012, no
pet.)(mem. op., not designated for publication).
RELATOR filed a MOTION TO SUPPRESS, which the trial court denied. RELATOR then
entered an open plea of guilt to the charges supra, RIVAS II, Id., and the trial court
sentenced him to 17 years in prison on each count I to run concurrently. (RIVAS II,
CRIMINAL DISTRICT COURT NO.4 OF TARRANT COUNTY, TEXAS, NO.(S) 1215971D & l215973D).
On APPEAL, RELATOR argued that the trial court erred in denying his MOTION TO
SUPPRESS citing BOTH, KYLLO v UNITED STATES, 533 U.S. 27, 121 S. Ct. 2038, 150 LEd 2d 94,
NO. 99-8508, UNITED STATES SUPREME COURT JUNE 11, 2001, argued FEBRUARY 20, 2001,
DECIDED UNDER PRIVACY GROUNDS; and, FLORIDA v JARDINES, 569 US , 133 S. Ct. 1409, 185
LEd 2d 495, 81 USLW 4209, .NO. -11-564, writ of certiorari, delivered MARCH 26, 2013(
DECIDED UNDER PROPERTY RUBIC; -intet~- alia. The SECOND DISTRICT APPEALS: 'COURT disagreed
and affirmed- the ,:convictions.._: RIVAS. II, NO.(S) 02-12-:-00062-:CR 6(. 02.,-12.,:;00063-CR, 2013 > .-_.
2
II
CASE(S) DISCUSSION
(CONTINUED)
T~x. App. LEXIS 2730 (Tex. App.- Fort Worth MARCH 14, 2013)(not designated for
publication). The SECOND DISTRICT COURT OF APPEALS' determination for affirmation of
conviction was based solev as, "after determining that the MAGISTRATE had a SUBSTANTIAL
BASIS FOR CONCLUDING. that the SEARCH WARRANT WAS SUPPORTED BY PROBABLE CAUSE BASED ON
A DRUG-SNIFFING POLICE DOG'S ALERT TO RIVAS' FRON'r" DOOR 00 THE SAME DAY THAT THE WARRANT
WAS OBTAINED AND EXECUTED." Id. at *L 5. This was the reasoning even though, "RIVAS
argues that the warrantless open-air sniff of his apartment door was illegal; however,
this court (SECOND DISTRICT COURT OF APPEALS) has held otherwise. See ROMO v STATE, 315
S.W.3d 565, 573 (Tex. App.-Fort Worth 2010, pet. ref'd)(citing RODRIGUEZ v STATE, 106
S.W.3d 224, 228-29 (Tex. App.-Houston [1st Dist.] 2003, pet. ref'd), cert. denied, 540
U.S. 1189 (2004), for the proposition that 'A DRUG DETECTION DOG'S SNIFF OF THE FRoNT DOOR
OF· A DEFENDANT'S HOME IS LEGAL BECAUSE THERE IS NO REASONABLE EXPECTATION OF PRIVACY IN
THE AREA AROUND AN UNENCLOSED FRONT DOOR'). Thus, we (SECOND DISTRICT COURT OF APPEALS)
hold that the open-air dog sniff of the front door to RIVAS' apartment was LEGAL and,
consistent with our (SECOND DISTRICT COURT OF APPEALS) .holdingih RIVAS I, was
sufficient to establish probable cause for the search warrant. See 2012 WL 5512450, at
*5. We (SECOND COURT OF APPEALS) overrule RIVAS' first point." RIVAS II, supra, Id. at
3, 4.
The RULINGS IN BOTH, ROMO and RODRIGUEZ, supra, Id., are 1n DIRECT CONTRADICTION to
KYLLO, supra, Id., as RULED by the SECOND DISTRICT COURT OF APPEALS INCLUDING THEIR
RULING OF RIVAS I & II, supra, Id .• This ASSERTION IS PRECEDENTED ON THE UNITED STATES
SUPREME COURT IN: JARDINES, supra, Id., as (3) three SUPREME COURT JUSTICES CONCUR,
JUSTICE KAGAN, JUSTICE GINSBURG, and JUSTICE SOTOMAYOR join in JARDINES, which was
DECIDED UNDER A PROPERTY RUBIC, to CONCLUDE THAT THE ISSUES OF JARDINES HAD ALREADY
BEEN RESOLVED UNDER PRIVACY GROUNDS EXPLAINED IN KYLLO, supra, Id.; KYLLO, supra, Id.,
THE KYLLO COURT HELD that POLICE OFFICERS CONDUCTED A SEARCH when th~y used a thermal-
imaging device to detect heat emenating FROM A PRIVATE HOME (A TRIPLEX), EVEN THOUGH
THEY COMMITTED NO TRESPASS. HIGHLIGHTING, OR INTENTION TO, DRAW BOTH A °FIRM AND A
BRIGHT LINE AT THE ENTRANCE TO THE HOUSE (A TRIPLEX) • KYLLO, supra, Id. at 40. The
UNITED STATES SUPREME COURT ANNOUNCED THE FOLLOWING RULE: WHERE, (ROMO, RODRIGUEZ, and
RIVAS I & II, AS HERE), THE GOVERNMENT USES A DEVICE THAT IS NOT IN GENERAL PUBLIC USE,
TO EXPLORE DETAILS OF THE HOME (APARTMENT, DUPLEX, ETC.) THAT ~D PREVIOuSLY HAVE
BEEN ~LE WITHOUT PHYSICAL INTRUSION, THE SURVEILLANCE 1
IS A SEARCH 1 AND
PRESUMPTIVELY UNREASONABLE WITHOUT A WARRANT." Ibid.
That "FIRM AND BRIGHT RULE GOVERNS THESE CASES:" The POLICE OFFICERS HERE CONDUCTED
3 3
II
CASE(S) DISCUSSION
(CONTINUED)
A SEARCH BECAUSE THEY USED A "DEVICE ••• NCYI' IN GENERAL USE" (A TRIANED DRUG-DETECTION
DOG) TO "EXPLORE DETAILS OF THE HOME (APARTMENT, DUPLEX, ETC.)" THAT THEY "\"KXJLD NCYl'
OTHERWISE DISCOVERED WITHOUT ENTERING THE PREMISES." Thus, obtaining by SENSE - ENHANCING
TECHNOLOGY ANY INFORMATION REGARDING THE HOMES INTERIOR THAT COULD NOT OTHERWISE BEEN
OBTAINED WITHOUT "INTRUSION INTO A CONSTITUTIONALLY PROTECTED AREA," SILVERMAN v UNITED
STATES, 365 U.S. 505, 512, CONSTITUTES A SEARCH - at least where (as here) the technology
in question is NOT IN PUBLIC USE. This assures preservation of that degree of PRIVACY
AGAINST GOVERNMENT THAT EXISTED WHEN THE FOURTH AMENDMENT WAS AOOPTED. KYLL01 supra, Id.
at 33 - 35. On the basis of this criterion, the information obtained by the "TRAINED
DRUG - DETECTION DOGS" in these cases (ROMO, RODRIGUEZ1 AND RIVAS I & II) was the
product of a search. KYLLO, supra, Id ..
RELATOR FILED PETITIONS FOR DISCRETIONARY REVIEW (RIVAS II, PD-0490-13 & PD~049l-13,
VACATED and REMANDED, COURT OF.CRIMINAL APPEALS, DELIVERED OCTOBER 23, 2013)(PUBLISH),
arguing that the SECOND DISTRICT COURT OF APPEALS erred under, BCYI'IL KYLLO, ·. and JARDINES,
supra, Id., with JARDINES HOLDING:"The Government's use of trained police dogs to
investigate the home and its immediate surrounds is a 'SEARCH' within the meaning of
THE FOURTH AMENDMENT. The Judgement of the Supreme Court of Florida is therefore affirmed."
(SUPREME COURT OF THE UNITED STATES, cited as: 569 US · (2013} at L opin. NO. ll-,-564,
FLORIDA, PETITIONER v JOELIS JARDINES, writ of certiorari to Supreme Court Florida).
JARDINES was handed down on March 26, 2013, 12 days after the SECOND DISTRICT COURT OF
APPEALS issued its opinion in these cases, accordingly the COURT OF CRIMINAL APPEALS
GRANTED RELATOR'S PETITIONS FOR DISCRETIONARY REVIEW (RIVAS II, supra, Id.), VACATED
THE JUDGEMENTS of the SECOND DISTRICT COURT OF APPEALS and REMANDED these cases to the
SECOND DISTRICT COURT OF APPEALS in light of JARDINES.
ON REMAND, RELATOR FILED BRIEF, submitted FEBRUARY 15, 2014, detailing arguements
of PDR GROUNDS FOR REVIEW; PROBABLE CAUSE FOR SEARCH OR ARREST ESTABLISHED BY PRIOR
ILLEGAL SEARCH OR ARREST TO BE TAINTED FRUITS THEREOF SUPRESSED WITH EVIDENCE OBTAINED
INADMISSABLE AS THE RESULT OR EXPLOITATION OF THAT PRIMARY ILLEGALITY IS AS WELL
INADMISSABLE AS "FRUITS OF THE POISONOUS TREE"; ARGUEMENT ON THE FOUR CORNERS OF THE
UNCONS'l'ITUTIONAL SEARCH WARRANT AS ISSUED; SEARCH WARRANT ISSUANCE BY MUNICIPAL COURT
MAGISTRATE JURISDICTIONALLY FLAWED; inter - alia. (APPELLANT'S BRIEF ON REMAND, Icl. at
pgs. 7 - 18).
ON REfVJAND, STATE'S BRIEF filed MARCH 24, 2.013, STATE'S Response to the First Question
Before the COURT: "JARDINES should not be applied retroactively to exclude the results
of the canine sniff in determining probable cause where police conducted the search in
4
II
CASE(S) DISCUSSION
(CONTINUED)
objectively reasonable reliance on binding precedents.
STATE'S Response to the Second Question Before the Court: "Even if the result of the
canine sniff is excluded, the remainder .of the affidavit was sufficient to establish
probable cause to support the issuance of a search warrant." (STATE'S BRIEF ON REMAND,
Id. at pg. 7, SUMMARY OF STATE'S RESPONSE).
ADDENDUM RESPONSE TO STATE'S BRIEF ON REMAND, RELATOR SUBMITTED on APRIL 04, 2014.
Arguing: KYLLO has been the existing JUDICIAL PRECEDENTS SINCE JUNE 11, 2001, over 13
years at the time of SEARCH WARRANT ISSUANCE by A MUNICIPAL COURT PRO - TEM JUDGE (RIVAS
II); and, JURISDICTION OF MUNICIPAL COURT PRO-TEM JUDGE in DIRECT VIOLATION OF TEXAS
CODE OF CRIMINAL PROCEDURE ARTICLE § 4.14 to ISSUE SEARCH WARRANT IN CRIMINAL CASE as
the PRIMARY CONSTRAINT IN THE FOUR CORNERS OF THE AFFIDAVIT. ADDENDUM, Id. throughout.
(DETAILED IN APPELLANT'S BRIEF ON REMAND, Id. at pgs. 7- 18).
SECOND DISTRICT COURT OF APPEALS, ON REMAND, SEPTEMBER 25, 2014, RE - AFFIRMED THE
TRIAL COURT'S JUDGEMENT REASONING AS REVEALED PAGE 1 herein. Id., NO.(S) 02-12-00062-CR
& 02-12-00063-CR; TRIAL COURT NO.(S) 1215971D & 1215973D.
III
TEXAS LAW
A. The SECOND DISTRICT COURT OF APPEALS:
l) MARCH 14, 2013, MEMORANDUM OPINION, NO.(S) 02-12-00062-CR & 02-12-00063-CR, at;
III.. MOTION TO SUPPRESS; A. OPEN AIR DOG SNIFF:
... "In RIVAS. I, we held that the OPEN-AIR DOG SNIFF was SUFFICIENT TO ESTABLISH PROABLE
CAUSE, and we DID NC1I' REACH .RIVAS' COMPLAINTS ABOUT THE INFORMANT'S CREDIBILITY OR
CORROBORATION. See id. at *5. Here, RIVAS ARGUES THAT THE WARRANTLESS OPEN-AIR DOG
SNIFF of his APARTMENT DOOR WAS ILLEGAL; however THIS COURT HAS HELD OTHERWISE. (f.n. 2)
See ROMO v STATE, 315 S.W.3d 565, 573 (Tex. App.~Fort Worth 2010, pet. ref'd)(citing
RODRIGUEZ v STATE, 106 S.W.3d 224, 228-29 (Tex. App~-Houston [lst Dist.] 2003, pet. ref'd),
cert. denied, 540 U.S. 1189(2004), for the proposition that~ DRUG DETECTION DOG'S SNIFF
OF THE FRONT DOOR OF A DEFENDANT'S HOME IS LEGAL BECAUSE THERE IS -NO REASONABLE
EXPECTATION OF PRIVACY IN THE AREA AROUND AN· UNENCLOSED FRONT DOOR) . Thus , WE HOLD
that THE OPEN-AIR DOG SNIFF OF THE FRONT DOOR TO RIVAS' .APARTMENT WAS LEGAL and,
CONSISTENT WITH OUR HOLDING IN RIVAS I, 'WAS SUFFICIENT TO ESTABLI_SH PROBABLE CAUSE FOR
THE SEARCH WARRANT.'See 2012 WL 5512450, at *5. We overrule Rivas' first point." Id. at
*3, 4, MEMORANDUM, supra.
5
5
III
TEXAS LAW
(CONTINUED)
2) SEPTEMBER 25, 2014, OPINION ON REMAND, PER CURIAM, NO.(S) 02-12-00062-CR & 02-12-
00063-CR, at;
I. INTRODUCTION:
... "SEPTEMBER 27, 2010, Rivas WAS DETAINED for new dtug 6ffenses:···-AFTER POLICE
OBTAINED A SEARCH WARRANT BASED ON A TIP FROM ANDREW MUNCHRATH, ••• WE AFFiffio1EI) AFTER
DETERMINING that the MAGISTRATE HAD A SUBSTANTIAL BASIS FOR CONCLUDING that the SEARCH
WARRANT WAS SUPPORTED BY PROBABLE CAUSE 'BASED ON' A DRUG.:....SNIFFING POLICE DOG'S ALERT
TO RIVAS FRONT IX)()R 'ON THE SAME DAY THAT THE WARRANT WAS OBTAINED AND EXECUTED. ' . Id~ _
at *1, 5." Id. at *2, OPINION ON REMAND, PER CURIAM, supra.
B. The STATE'S BRIEF ON REMAND:
1) MARCH 24, 2014, NO.(S) 02-12-00062-CR & 02-12-00063-CR, at;
I. _Evidence obtained from a search should not be suppressed IF POLICE OFFICERS
COULD NOr HAVE HAD_ KN~EDGE THAT THE SEARCH WAS IN VIOLATION OF THE FOURTH· AMENDMENT.
"In JARDINES, the SUPREME COURT ruled that a canine sniff of the curtilage of a
private residence constitutes a search under THE FOURTH AMENDMENT. Florida v Jardines,
. -~·~Prior to the Court's opinion in JARDINES, POLICE OFFICERS IN THE INSTANT CASE
CONDUCTED AN "OPEN AIR SNIFF" AT THE FRONT IX)()R OF APPELLANT'S APARTMENT, USING A NNDDA
CERTIFIED CANINE.(f.n. 3, The record in the instant case is not sufficient to determine
whether the area outside Appellant's door was part of the curti~age.)[RR IV: State's
Exhibit One, at *6] . The CANINE ALERTED TO THE. PRESENCE OF NARCCJri~_ OOOID? FROM THE
RESIDENCE, 'AND THAT INFORMATION WAS INCLUDED' IN THE AFFIDAVIT OFFICERS 'USED TO
---
OBTAIN A SEARCH WARRANT FOR APPELLANT'S APARTMENT. [RR IV: State's Exhibit One, at *6].
"Evidence of the result of the canine sniff should not be excluded from consideration
in determining whether probable cause existed for the issuance of a search warrant
because the officers could not of anticipated that their actions were in violation of
the FOURTH AMENDMENT, AND OFFICERS HAD A RIGHT TO RELY ON PRECEDENT ESTABLISHED BY THIS
COURT. (SECOND DISTRICTCOURT OF APPEALS, FORT WORTH, TEXAS)."
C. The COURT OF CRIMINAL APPEALS, AUSTIN, TEXAS:
l) OCTOBER 23, 2013, OPINION, PER CURIAM, NO.(S) PD-0490-13 & PD-0491-13, at;
OPINION:
"APPELLANT WAS: CHARGED ••• A']Xlb SNIFF AT HIS FRONT IX)()R LED TO THE CHARGES AGAINST HIM.
HE FILED A MOTION- TO SUPPRESS, WHICH THE TRIAL COURT DENIED ••• THE COURT OF APPEALS DID
NOl' HAVE THE BENEFIT OF JARDINES. ACCORDINGLY, WE GRANT APPELLANT'S PETITIONS FOR
DISCRETIONARY REVIEW, VACATE THE JUDGEMENTS OF THE COURT OF APPEALS, AND REMAND THESE
CASES TO THE CXlURT OF APPEALS IN LIGHT OF JARDINES." Id. at OPINION, sUpra.
' 6
III
TEXAS LAW
(CONTINUED)
2) In STATE. v DAUGHERTY, 931 S.W.2d 268, 283 (Tex. Crim. App. 1996), acknowledged:
"WE ALSO NOTE THE SUPREME COURT HAS HELD EVIDENCE FOUND PURSUANT TO AN EXECUTION
1
OF A VALID SEARCH WARRANT IS ADMISSABLE PROVIDED THE INFORMATION USED TO OBTAIN THE
WARRANT IS WHOLLY UNCONNECTED 1 TO INFORMATION UNCOVERED 1
DURING AN EARLIER, INVALID .
SEARCH. 10
Id. at pg. 5, APPELLANT'S MOTION FOR RECONSIDERATION OF OPINION ON REMAND EN
BANC, Timely submitted September 26, 2014; cited in DAUGHERTY, supra, Id. at n. *4,
citing, SEGURA v US, 468 U.S. 796, 104 S. Ct. 3380, 82 LEd 2d 599 (1984); MURRY v US, 487
U.S. 533, 108 S. Ct. 2529, 101 LEd 2d 472 (1988)(citing NIX v WILLIAMS, 467 U.S. 431, 104 S
Ct 2501, 81 LEd 2d 377 (1984).
D. TEXAS CODE CRIMINAL PROCEDURES, at ARTICLE:
1) § 4.14, JURISDICTION OF MUNICIPAL COURT, states:
a) A municipal court, including a municipal court of records, shall have exclusive
original jurisdiction within the territorial limits of the municipality IN ALL CRIMINAL
CASES THAT:
1) arise under the ordinances of the municipality; AND
2) are punishable by a fine not to exceed:
A) $2,000 in all cases arising under the municipality ordinances that govern fire
safety, zoning, or public health and sanitation, including dumping of refuse; OR
B) $500 in all other cases arising under a municipal ordinance.
b) The municipal court shall have concurrent jurisdiction with.the justice court of
a precinct in which the municipality is located IN ALL CRIMINAL CASES ARISING UNDER
STATE LAW THAT:
1) arise within the territorial limits of the minicipality AND are punishable
ONLY by a fine, as defined in Subsection (c) of this section; OR
2) arise under Chapter 106, Alcoholic Beverage Code, and DO NOT INCLUDE CONFINEMENT
AS AN AUTHORIZED SANCTION.
c) In this article, an offense which is punishable by "fine only" is defined as an
offense THAT IS PUNISHABLE BY FINE AND SUCH SANCTIONS, IF ANY, AS AUTHORIZED BY STATI.n:E
NOT CONSISTING OF CONFINEMENT IN JAIL OR IMPRISONMENT.
d) The fact that a conviction in a municipal court has as a consequence the imposition
of a penalty or sanction by an agency or entity other than the court, such a denial,
suspension, or revocation of a privilege, does not effect the original jurisdiction of
the municipal court.
e) The municipal court has jurisdiction in the forfeiture and final judgement of all
bail bonds and personal bonds taken in criminal cases of which the court has jurisdiction.
Id. at pg. 6, ADDENDUM RESPONSE TO STATE'S BRIEF ON REMAND, 02-12-00062-CR/02-12-00063-CR.
7
1
IV
FEDERAL PRECEDENTS
(LAW)
The STATE ADJUDICATION was contrary to clearly established FEDERAL LAW as determined
by the SUPREME COURT OF THE UNITED STATES, or involved an unreasonable application of
clearly established FEDERAL LAW as determined by said SUPREME COURT. HARRINGTON v
RICHTER I us I 131 s Ct 770 I 785 I l 78 L Ed. 2d 624 ( 2011) ; WILLIAMS v TAYLOR, 529
U.S. 362, 404-05, 120 S. Ct. 1495, 146 LEd 2d 389 (2000); 28 USC§§ 2254 (d)(l), (2). A
STATE COURT decision is contrary to FEDERAL PRECEDENTS if it applies a rule that
CONTRADICTS the GOVERNING LAW SET FORTH BY THE SUPREME COURT, or if it CONFRONTS A SET
OF FACTS that are MATERIALLY INDISTINGUISHABLE FROM SUCH A DECISION AND ARRIVES AT A
RESULT DIFFERENT FROM THE SUPREME COURT PRECEDENT. EARLY v PACKER, 537 U.S. 3, 7-8, 123
S. Ct. 362, 154 LEd 2d 263 (2002).
A STATE COURT unreasonably applies SUPREME COURT PRECEDENT if it UNREASONABLY APPLIES
THE CORRECT LEGAL RULE to the facts of a particular case, or UNREASONABLK EXTENDS A
LEGAL PRINCIPLE FROM SUPREME. COURT PRECEDENT TO A NEW CONTEXT WHERE IT SHOULD NOT APPLY,
OR ~LY REFUSES TO EXTEND .THAT PRINCIPLE TO A NEW CONTEXT WHERE IT SHOULD APPLY.
WILLIAMS, 529 U.S. at 409. In deciding whether a STATE COURT'S application WAS UNREASONABLE,
the SUPREME COUR'ITCONSIDERS whether the APPLICATION WAS OBJECTIVELY UNREASONABLE. Id.
at 411.
A decision adjudicated on the merits 1n a STATE COURT and BASED ON FACTUAL
DETERMINATION will.not be overturned on factual grounds UNLESS it is objectively
unreasonable ih light of evidence presented in the STATE COURT PROCEEDING. MILLER-EL v
COCKRELL, 537 U.S. 322, 343, 123 S. Ct. 1029, 154 LEd 2d 931 (2003). A COURT must presume
the underlying factual determination of the STATE COURT was correct, UNLESS THIS
RELATOR REBUTS THE PRESUMPTION OF CORRECTNESS BY CLEAR AND CONVINCING EVIDENCE. 28 USC
§ 2254 (e)(l); See also MILLER-EL, 537 U.S. at 330-31.
The RELATOR MUST afford the STATE COURT a "fair opportunity to apply controlling
legal principles to the facts bearing upon his CONSTITUTIONAL CLAIM." ANDERSON v.
HARLESS, 459 U.S. 4, 6 (1982) Id. at 6.
RELATOR MUST present the claim:in issue with specifity sufficient to ALLOW the STATE
COURT an OPPORTUNITY TO APPLY CONTROLLING LAW TO THE FACTS OF THE CLAIM.
"[E]vidence that places the claims in a significantly different legal posture must
be presented to the STATE COURT'S." MORRIS v DRETKE, 379 F 3d 199, 204-05 (5th Cir.
2004)(emphasis & bracketed text in original; internal & end citations omitted).
RELATOR has made "a substantial showing of the denial of a CONSTITUTIONAL RIGHT,
THAT REASONABLE JURISTS WOULD FIND THE ... COURT'S ASSESSMENT OF THE CONSTITUTIONAL
CLAIMS DEBATABLE OR WRONG." TENNARD v DRETKE, 542 U.S. 274, 282, 124 S. Ct. 2562, 159 LEd
8
IV
FEDERAL PRECEDENTS
(LAW, CONTINUED)
2d 384 (2004)(quoting SLACK v MCDANIEL, 529 US 473,484, 120 S. Ct. 1595, 146 LEd 2d 542
(2000). RELATOR (THROUGHOUT THE ENTIRE APPEAL PROCESS AND AGAIN HEREIN) has shown "that
a REASGJNABI1EJURIST COULD DEBATE WHETHER (or, for that matter, AGREE THAT) the petition
[SECOND DISTRICT COURT OF APPEALS ORDER] SHOULD HAVE BEEN RESOLVED IN A DIFFERENT MANNER
OR THAT THE ISSUES PRESENTED WERE 'ADEQUATE TO DESERVE ENCOURAGEMENT TO PROCEED FURTHER.'"
MILLER-EL, supra, 537 US at 336.
v
EXCLUSIONARY RULE
A. FEDERAL CASE LAW
The exclusionary rule "is a judicially created remedy to safegaurd FOURTH AMENDMENT
RIGHTS generally through DETERRENT EFFECT, rather than a personal CONSTITUTIONAL RIGHT
of a party aggrieved." UNITED STATES v CALANDRA, 414 U.S. 338, 3481 94 S. Ct. 613, 38 LEd
2d 561 (1974). The exclusionary rule's SOLE PURPOSE IS TO DETER FUTURE FOURTH AMENDMENT
VIOLATIONS. Id., citing UNITED STATES v LEON 1 468 US-"8"97.~ 9091 921 n. 21 104 S. Ct. 34051
82 LEd 2d 677 (1984).Furthermorel applicability of the exclusionary rule is limited to
situations in which DETERRENCE IS "THOUGHT MOST EFFICACIOUSLY SERVED." See DAVIS.v United
STATES,_US_._, 131 S. Ct. 2419, 2426, 180~L Ed 2d 285 (2011), citing CALANDRA,414 US at2434.
The SUPREME COURT has long recognized that APPLICATION OF THE EXCLUSIONARY RULE
involves consideration of the actions of the officers involved in order to determine
whether the REQUISITE DETERRENT EFFECT WILL BE ACHIEVED. See DAVIS, 131 S. Ct. at 2434;
ILLINIOS v KRULL, 480 U.S. 340, 350, 107 S. Ct. 1160, 94 LEd 2d 364 (1987); UNITED STATES
v PELTIER, 422 U.S. 531, 537, 95 S. Ct. 2313, 2318, 45 LEd 2d 374 (1975).
The SUPREME COURT in DAVIS held that the GANT RULE applied retroactively, but that
evidence obtained during the search conducted IN REASONABLE RELIANCE ON THEN - BINDING
PRECEDENT was not subject to the exclusionary rule. DAVIS, 131 S. Ct. at 2429, 2434; see
also, ARIZONA v GANT, 552 U.S. 332, 352, 129 S. Ct. 1710, 170 LEd 2d 274 (2008).
The SUPREME COURT declared that "[w]hen the POLICE EXHIBIT "DELIBERATE," "RECKLESS,"
OR "GROSSLY NEGLIGENT" DISREGARD FOR FOURTH AMENDMENT ·RIGHTS, THE DETERRENT VALUE OF
EXCLUSION IS STRONG AND TENDS TO OUTWEIGH THE RESULTING COSTS." DAVIS, supra, at 2427
Id ..
Similarly, 1n KRULL, 480 U.S. at 342-43. One day after the search was conducted, a
federal court declared the statute unconstisutional, ID. at 340. Declaring that THE
PURPOSE OF THE EXCLUSIONARY RULE IS TO DETER FUTURE UNLAWFUL POLICE CONDUCT, THE UNITED
STATES SUPREME COURT HELD that the FOURTH AMENDMENT'S EXCLUSIONARY RULE DID NOT APPLY
9 q
v
EXCLUSIONARY RULE
(CONTINUED)
WHEN AN OFFICER'S RELIANCE ON THE CONSTITUTIONALITY OF A STATUTE IS OBJECTIVELY
REASONABLE, EVEN THOUGH the statute is subsequently declared unconstitutional. Id. at
347, 350.
In PELTIER, THE SUPREME COURT determined ... "If the PURPOSE OF THE EXCLUSIONARY
RULE IS TO DETER UNLAWFUL POLICE CONDUCT, THEN EVIDENCE OBTAINED FROM A SEARCH SHOULD
BE SUPPRESSED ONLY IF IT CAN BE SAID THAT. THE LAW ENFORCEMENT OFFICER HAD KNOWLEDGE,
OR MAY PROPERLY BE CHARGED WITH KNOWLEDGE, THAT THE SEARCH WAS UNCONSTITUTIONAL UNDER
THE FOURTH AMENDEMENT." :PELTIER, supra, 422>US at542, Id ..
(CITINGS FROM STATE'S BRIEF ON REMAND, NO.(S) 02-12-00062-CR & 02-12-00063-CR, at pgs.
8 - 12).
B. TEXAS CASE LAW
Similar to the FOURTH. AMENDMENT, ARTICLE I, SECTION 9 of the TEXAS CONSTITUTION
PROVIDES, in relevant part, that "The people SHALL BE SECURE IN THEIR persons, HOUSES,
papers in possession, FROM ALL UNREASONABLE SEARCHES OR SEIZURES ... " TEXAS CONSTITUTION
ART. I, § 9. Unlike the FOURTH AMENDMENT, ART. I, § 9 contains NO EXCLUSIONARY RULE,
and thus, TEXAS ADOPTED A STATUTORY EXCLUSIONARY RULE. See, HULIT v STATE, 982 S.W.2d
43L 439 (Tex Crim App 1998) '· citing WELCHEK v STATE, 247 S.W.2d 524, 529 (Tex Crim App
1922). ARTICLE38.:Z.3 of the TEXAS CODE OF CRIMINAL· PROCEDURE EXCLUDES EVIDENCE "OBTAINED
BY AN OFFICER OR OTHER PERSON IN VIOLATION OF 'ANY PROVISIONS' OF THE CONSTITUION OR / ,
)<'
LAWS OF THE STATE. OF TEXAS, OR OF THE CONSTITUTION OR LAWS OF THE UNITED STATES OF
AMERICA." TEX CODE CRIM PROC ART 38.23.
The TEXAS COURT OF CRIMINAL APPEALS has held that the EXCLUSIONARY RULE DID NOT
PRECLUDE ADMISSION OF EVIDENCE FROM A WARRANTLESS SEARCH AND SEIZURE 'THAT WAS PERMISSABLE'
AT THE 'TIME OF THE SEIZURE.'See SWINK v STATE, 617 S.W.2d 203, 209-10 (Tex Crim App
1981). Concluding that the warrantless search and seizure of the premises by the .'
officers in SWINK ~WAS PERMISSABLE AT THE TIME OF THEIR ACTIONS," the COURT OF CRIMINAL
APPEALS found no error by the trial court in admitting the complained - of evidence.
SWINK, 617 S.W.2d at 210, Id ..
More recently, two Texas Courts of Appeals have had occasion to consider whether
the EXCLUSION OF EVIDENCE was required in circumstances WHERE OFFICERS BELIEVED THEY
WERE ACTING LAWFULLY AT THE TIME THEY CONDUCTED A SEARCH, but SUBSEQUENT COURT DECISIONS
FOUND SEARCHES TO.. BE IN VIOLATION OF THE FOURTH AMENDMENT. In TAYLOR v STATE, 410 S.W.3d
520 (Tex App- Amarillo 2013, no pet.) the Court Ruled that EVIDENCE IN THE CASE SHOULD
NOT BE SUBJECT TO THE EXCLUSIONARY .RULE BASED ON THE STATE OF THE LAW AS IT EXISTED
AT THE TIME the mobile tracking device was installed, BECAUSE THE OFFICERS ACTED IN
REASONABLE RELIANCE ON 'FEDERAL 'PRECEDENT' IN THE MAJORITY OF THE FEDERAL CIRCUIT COURTS
10 IV
v
EXCLUSIONARY RULE
(CONTINUED)
OF APPEAL, INCLUDING THE FIFTH CIRCUIT. TAYLOR, at 526-527, Id.
In ELIAS v STATE, 2012 WL 4392245 at *7 (Tex App - El Paso September 26, 2012, pet
ref'd)(not designated for publication), the El Paso Court held that, although the
SEARCH OF ELIAS 1 VEHICLE WAS UNCONSTITUTIONAL UNDER GANT, THE OFFICERS ACTED IN
1 1
OBJECTIVELY REASONABLE RELIANCE UPON EXISTING LAW, AND THUS, THE EXCLUSIONARY RULE
WAS NOT_APPLICABLE. ELIAS, supra, 2012 WL 4392245 at *7.
(CITINGS FROM STATE'S BRIEF ON REMAND, NO.(S) 02-12-00062-CR & 02-12-00063-CR, at pgs.
12- 16, Id.)
VI
ABUSE OF DISCRETION
CONSPIRACY TO CONCEAL / IGNORE MATERIAL FACTS,
U.S. SUPREME COURT BINDING PRECEDENT
The SECOND DISTRICT COURT OF APPEALS, has too, ABUSED IT DISCRETION and in doing so
has entered into A CONSPIRACY TO CONCEAL, IGNORE, MATERIAL FACTS, AND UNITED STATES
SUPREME COURT BINDING PRECEDENT, THEREBY, AFFIRMING. AN UNLAWFUL CONVICTION AND
IMPRISONMENT OF THIS RELATOR.
RELATOR'S ASSERTIONS AND EXPLANATIONS FOR AFOREMENTIONED AS FOLLOWS:
A. SECOND DISTRICT COURT OF APPEALS, LIVINGSTON,C.J., MCCOY, J., & GABRIEL, J.;
REGIONAL PRESIDING JUDGE, HONORABLE DAVID L. EVANS;
JUDGE, CRIMINAL DISTRICT COURT NO. 4, HONORABLE MICHAEL THOMAS;
ASSISTANT CRIMINAL DISTRICT ATTORNEY, CHARLES M. MALLIN; &
ATTORNEY OF RECORD, JIM H. SHAW:
ALL ARE UNDER OATH to uphold the_LAWS AND CONSTITUTIONS OF THE STATE OF TEXAS AND
THE_UNITED STATES. In failing to do so is AN'ABUSE OF.THEIR DISCRETION, NOT TO MENTION
A VIOLATION OF THEIR OATH, ESPECIALLY WHEN ALL HAVE EITHER, CONCEALED OR IGNORED,
MATERIAL FACTS OR BINDING PRECEDENT OVER A CASE, SUCWAS'THE ONE BEFORE THIS COURT
PRESENTLY, AND CAN BE CONSIDERED A CONSPIRACY TO DO SO, UNDER FEDERAL LAW.
B. The ABUSE OF DISCRETION to enter into A CONSPIRACY TO CONCEAL AND IGNORE THE MATERIAL
FACTS THAT THE MAGISTRATE'S ISSUANCE OF THE SEARCH WARRANT BEYOND JURISDICTION IN
'
DIRECT VIOLATION OF TEXAS CODE CRIMINAL PROCEDURE ARTICLE §.4.14, TEXAS LAW,(cited
herein at, III TEXAS LAW, D. TEXAS CODE CRIMINAL PROCEDURES, pg. 7), by ALL ABOVE,
as was either briefed or made aware through this entire JUDICIAL PROCESS RELATOR HAS
been subjected to, especially, briefed ON REMAND (See, appellant's Brief at, III.
Arguments, pg. 14 ~- 15)', specifying:
1) A MuniCipal ·court Pro..:.TerriJudge has a relatively straight forward task to issue
11
Ij
VI
ABUSE OF DISCRETION
CONSPIRACY TO CONCEAL / IGNORE MATERIAL FACTS
U.S. SUPREME COURT BINDING PRECEDENT
ARREST WARRANTS FOR BREACH OF MUNICIPAL ORDINANCES, and the SEARCH WARRANT ISSUANCE IN
this case was beyond the JURISDICTION OF THE MUNICIPAL COURT PRO-TEM JUDGE, violating
Tex. Code Crim. Proc. Art. § 4.14, thereby commiting a LEGAL /.TECHNICAL DEFECT
RENDERING THE SEARCH WARRANT OF "NO FORCE OR EFFECT, LEGALLY."
JUSTICE STEVENS (cited in ILLINIOS v GATES, 462 U.S. 213, 76 LEd 2d 527t 103 S CT
2317, reh. den. (US) 77 LEd 2d 1453, 104 S. Ct. 33, at 262, rr., B., Id.) put in writing
for the Court in US v ROSS, 465 U.S. 798, 823, n. 32, 72 L. Ed. 2d 572, 102 S. Ct. 2157:
"[A] warrant issued by a magistrate NORMALLY SUFFICES to establish" that a law · ·.: -
enforcement officer has "ACTED;IN GOOD FAITH IN CONDUCTING THE SEARCH." Neberless, the
WARRANT MAY BE INVALIDATED BECAUSE OF A TECHNICAL DEFECT • •• TO ISSUE SEARCH WARRANTS,
AN INDIVIDUAL MUST BE CAPABLE OF MAKING THE ·PROBABLE CAUSE JUDGEMENTS INVOLVED •••
IN ANY EVENT, · I (JUSTICE STEVENS) ~ APPLY THE EXCLUSIONARY RULE WHEN IT IS378 U.S. 108, 12 LEd 2d 723, 84 S. Ct. 1509 (1964); NATHANSON v US, 290
U.S. 41, 78 LEd 159, 54 S. Ct. 11 (1933). Similarly, the good faith exception WOULD NOT
APPLY IF THE MATERIAL PRESENTED TO THE MAGISTRATE. OR JUDGE "IS FALSE OR MISLEADING,"
FRANKS v DELAWARE, 438 U.S. 154, 57 LEd 2d 667, 98 S. Ct. 2674 (1978), OR SO CLAERLY
LACKING IN PROBABLE CAUSE THAT NO WELL - TRAINED OFFICER COULD REASONABLY HAVE THOUGHT
THAT A WARRANT COULD ISSUE. GATES, supra at 263-264 Id .. Consider the ARGUMENTS
PRESENTED TO THE SECOND DISTRICT COURT OF APPEALS IN RELATOR'S BRIEF ON REMAND INCLUDING
ADDENDUM TO STATE'S BRIEF ON REMAND.
This was a clear ABUSE OF DISCRETION TO CONCEAL AND IGNORE THIS MATERIAL FACT THAT
THE PRO-TEM MUNICIPAL. COURT JUDGE WENT BEYOND THE JURISDICTION OF SAID COURT ISSUING
A SEARCH WARRANT IN A CRIMINAL OFFENSE THAT CONSIST OF CONFINEMENT IN JAIL AND/OR
IMPRISONMENT, VIOLATING (TECHNICALLY) TEX. CODE CRIM. PROC. ART. § 4.14, specifying
MUNICIPAL COURT JURISDICTION.
The MATERIAL PRESENTED to the MAGISTRATE was at the very least MISLEADING with the
inclusion of the DOG - SNIFF for corroboration of the informants tip. Furthermore, the
MAGISTRATE "HAD NO BUSINESS ISSUING A WARRANT," as it was beyond the MAGISTRATE'S
JURISDICTION AND PLAINLY EVIDENT FROM TEX. CODE CRIM. PROC. ART. § 4.14.
C. The ABUSE OF DISCRETION to enter into A CONSPIRACY TO CONCEAL AND IGNORE MATERIAL
FACTS OF THE UNITED STATES SUPREME COURT'S BINDING PRECEDENT in cases as follow:
KYLLO v US, 533 U.S. 27, 150 LEd 2d 94, 121 S. Ct. 2038 was argued:FEBRUARY-20, 2001
and DECIDE JUNE 11, 2001. FURTHERMORE, it was cited and discussed in FLORIDA v JARDINES
569 us , 133 S. Ct. 1409, 185 L. Ed. 2d 495, 81 USLW 4209, NO. 11-564, writ of certiorari,
12
VI
ABUSE OF DISCRETION
CONSPIRACY TO CONCEAL / IGNORE MATERIAL FACTS
U.S. SUPREME COURT PRECEDENT
ARGUED OCTOBER 31, .2012,- DECIDED MARCH 26, 2013.
The STATE ADJUDICATION AS AFFIRMED BY THE SECOND DISTRICT COURT OF APPEALS is
. contrary to clearly established FEDERAL .LAW as determined by the SUPREME COURT OF THE
UNITED STATES, and has involved an unreasonable application of clearly established
FEDERAL LAW as determined by said SUPREME COURT. This decision by the SECOND DISTRICT
COURT OF APPEALS is contrary to FEDERAL PRECEDENT.as it has applied a rule that
contradicts the GOVERNING LAW SET FORTH BY THE UNITED STATES SUPREME COURT in the KYLLO
case, supra, Id., and discussed as a determining case of the more recent JARDINES case,
supra, Id.,thereby, arriving at a result different from the SUPREME COURT PRECEDENT.
(citings, herein at IV., FEDERAL PRECEDENT [LAW] at pgs. 8- 9).
Specifically, as cited in JARDINES, supra, decided UNDER PROPERTY RIGHTS, the KYLLO
CASE,,supra, decided UNDER PRIVACY RIGHTS, governs the case of RIVAS v STATE, NO.(S)
02-12-00062-CR & 02-12-00063-CR, SECOND DISTRICT COURT OF APPEALS JUDGEMENT ON REMAND
RE-AFFIRMED (RIVAS II), HOWEVER, has chose to CONCEAL AND IGNORE these MATERIAL FACTS
ESTABLISHED THROUGH UNITED STATES SUPREME COURT PRECEDENT, thereby considered AN ABUSE
OF DISCRETION, and UNDER FEDERAL LAW, A CONSPIRACY TO DO SO, AS RIVAS II RE - AFFIRMED.
IN KYLLO, supra, the SUPREME COURT DECIDED ON JUNE 11, 2001, as KYLLO lived in a
TRIP.EEK:UNI:T (MULTI FAMILY UNITS), HIS HOME, the COURT HELD that POLICE OFFICERS
CONDUCTED A SEARCH WHEN THEY USED A THERMAL-IMAGING DEVICE TO DETECT HEAT EMENATING
FROM A PRIVATE HOME, even though they COMMIT'I'ED NO 'IRESPASS. HIGHLITING THE SUPREME
COURT'S INTENTION TO DRAW BOTH A "FIRM" AND A "BRIGBT LINE AT nTHE ENTRANCE TO THE
0
HOUSE,n KYLL0, supra, Id. at 40. The SUPREME COURT ANNOUNCED THE FOLLOWING RULE:
"Where, as here, theGovernment uses a devise that is NOT IN GENERAL PUBLIC USE, TO
EXPLORE DETAILS OF THE HOME THAT \'OJLD PREVIOUSLY HAVE BEEN ~LE WITHOUT PHYSICAL
1
INTRUSION, THE SURVEILLANCE IS A SEARCH' AND IS PRESUMPTIVELY UNREASONABLE WITHOUT
WARRANT. n Ibid.
The STATE has argued, and the SECOND DISTRICT COURT OF APPEALS has RULED IN R(H) ~
STATE, 315 S.W.3d 565, 573-574 (Tex App - Fort Worth 2010, pet. ref'd) and concluded
that canine sniffs of a garage door and backyard fence WERE NOT SEARCHES UNDER THE
FOURTH AMENDMENT OR THE TEXAS CONSTITUTION because the dog sniffed areas that were NOT
PROI'ECTED FROM OBSERVATION by passerby AND BECAUSE THE DEFENDANT HAD NO REASONABLE
EXPECTATION OF PRIVACY IN THE ODOR OF MARIJUANA COMING FROM HIS BACKYARD.
In its original opinion in the instant case, the SECOND DISTRICT COURT OF APPEALS
cited ROMO for the PROPOSITION -
THAT
-- A DRUG DETECTION DOG'S SNIFF -OF THE FRONT DCX>R -OF
A DEFENDANT S HOME IS NOT A SEARCH BECAUSE THERE IS NO REASONABLE EXPECTATION OF PRIVACY
1
13 /3
VI
ABUSE OF DISCRETION
CONSPIRACY TO CONCEAL I IGNORE MATERIAL FACTS
U.S. SUPREME COURT PRECEDENT
IN THE AREA AROUND AN UNENCLOSED FRONT IXXJR •. -See RIVAS v STATE (RIVAS II), 2013 WL
978911 at *1; Also, STATES BRIEF ON REMAND at pg. 20 Id ..
The STATE BRIEFS the SECOND DISTRICT COURT OF APPEALS with a substantial body of
case law that a canine sniff is not a search, however, this is an UNREASONABLE APPLICATION
OF THE CORRECT LEGAL RULE TO THE FACTS OF THE PARTICULAR CASE. The case law used pertains
to incidents that have little to NO EXPECTATION OF PRIVACY, ESPECIALLY WITH AUTOMOBILES,
PUBLIC TRANSIT, UNDER STATUTES THAT ARE CONSTITUTIONAL AT TIME OF WARRANTLESS SEARCH,
ETC .. (See ORIGINAL STATE BRIEF; STATE BRIEF ON PDR; STATE BRIEF ON REMAND; and, SECOND
DISTRICT COURT OF APPEALS OPINIONS ALL)(Compare, RELATOR'S ORIGINAL APPEAL; PETITION
FOR DISCRETIONARY REVIEW; ADDENDUMS; and. BRIEF ON DISCRETIONARY REVIEW I REMAND) Id.
The STATE and THE SECOND DISTRICT COURT OF APPEALS absolutely ~LY REFUSE TO
EXTEND THE KYLLO I KATZ / SEGURA I .~NG SUN PRINCIPLE TO THIS NEW CONTEXT OF RIVAS II
WHERE IT SHOULD .APPLY AS DISCUSSED BY JARDINES JUSTICES IN CONCURRING OPINION, ESPECIALLY,
JUSTICE(S) KAGAN, GINSBURG AND SOTOMAYOR, SPECIFYING, "KYLLO, WITHOUT TRESPASS, HAD
ALREADY RESOLVED JARDINES ON PRIVACY GROUNDS. WHERE AS HERE (RIVAS II) THE GOVERNMENT
USES A DEVISE THAT IS NOT IN GENERAL PUBLIC USE, TO EXPLORE DETAILS OF THE HOME THAT
WOULD PREVIOUSLY HAVE BEEN lJNKNCMABLE WITHOUT PHYSICAL INTRUSION, THE SURVEILLANCE IS
A 'SEARCH' AND IS PRESUMPTIVELY UNREASONABLE WITHOUT A WARRANT. a Id. at pg. 13 herein,
KYLLO.
The ~EXAS COURT OF CRIMINAL APPEALS (RIVAS II, NO.(S) PD-0490-13 & PD-0491-13, Per
curiam, Opinion) in pertenent part specified: "APPELLANT WAS CHARGED WITH TWO COUNTS
OFPOSSESSION OF A CONTROLLED SUBSTANCE WITH THE INTENT TO DELIVER. A IXJG SNIFF AT HIS
FRONT JXX)R LED TO THE CHARGES AGAINST HIM •• " Id. Thus, THE IXJG SNIFF AT RELATOR'S
(RIVAS') FRONT DOOR "PROVIDED THE INFORMATION USED TO OBTAIN THE SEARCH WARRANT AND IS
WHOLLY CONNECTED TO THE INFORMATION UNCOVERED DURING THE EARLIER, INVALID SEARCH," OR
ILLEGAL SEARCH PRIOR TO WARRANT ISSUANCE.;see STATE v DAUGHERTY, 931 S.W.2d 268, 283 n.!\4,
(Tex. Crim. App. 1996)(acknowledging: "We also note THE SUPREME COURT HAS HELD EVIDENCE
FOUND pursuant to an execution of a valid search warrant is admissable 'PROVIDED THE
INFORMATION USED TO OBTAIN THE WARRANT IS WHOLLY UNCONNECTED' TO INFORMATION UNCOVERED
'DURING AN EARLIER, INVALID SEARCH.'" See, SUPREME COURT PRECEDENT CITINGS, herein at
III., TEXAS LAW, pg. 7, n. *2, STATE v DAUGHERTY, Id.). A CLEAR AND ABSOLUTE VIOLATION
OF THE FOURTH· AMENDMENT IIDJ(JIRING EXCLUSION OF EVIDENCE UNDER, BOTH, THE FOURTH AMENDMENT
AND THE TEXAS AOOPTED STATUTORY EXCLUSIONARY RULE, TEX CODE CRIM PROC ART 38.23. See,
heredm at; V.. EXCLUSIONARY RULE, B. TEXAS CASE LAW, pg 10 - lL Id ..
14
;1
VII
CONCLUSION
The COURT OF CRIMINAL APPEALS properly applied the correct rule of law in this
Case through the ORIGINAL PER CURIAM OPINION that VACATED AND REMANDED this case to the
SECOND DISTRICT COURT OF APPEALS, specifically stating, " •.. A dog sniff at his (RELATOR'S)
front door led to the charges against him ... " Id. at Per Curiam Opinion Order, NO.(S)
PD-0490-13 & PD-0491~13.
RELATOR again, (herein) BRIEFS THE COURT OF CRIMINAL APPEALS OF TEXAS through the
background 1 case· discussion,·. Texas Law Federal Precedent, Exclusionary Rule
1 1 Abuse of
Discretion, Conspiracy to Conceal I Ignore Material Facts of the United States Supreme
Court Binding Precedent which apply in this Case of RIVAS I & II.
RELATOR'S CASE comes under the jurisdiction of the KYLLO SUPREME COURT as has been
conceded by this RELATOR through this entire appeal process. KYLLO was argued; FEBRUARY
20, 2001, and decided, JUNE 11, 2001, the fact that the SECOND DISTRICT COURT OF APPEALS
chooses to ignore the fact that under KYLLO, "A DRUG - DETECTION DOG'S SNIFF OF THE
FRONT DOOR OF A DEFENDANT'S HOME IS [IL]LEGAL BECAUSE THERE IS [A] REASONABLE EXPECTATION
OF PRIVACY .... " (See, ROMO v STATE, 315 S.W.3d 565, 573; RODRIGUEZ v STATE, 106 S.W.3d
224, 228-29), "~·~.EVEN THOUGH THEY COMMITTED NO TRESPASS. HIGHLIGHTING, OR INTENTION TO,.
DRAW BOTH A 'FIRM AND A BRIGHT LINE AT THE ENTRANCE TO THE HOUSE.'" KYLLO, supra Id.at 40.
The UNITED STATES SUPREME ccxm.T ANNOUNCED THE FOLI.OaNG RULE:. WHERE, (AS HERE, ROMO,
RODRIGUEZ, AND RIVAS I & II) THE GOVERNMENT USES A DEVICE THAT IS.NOT IN GENERAL PUBLIC
USE, TO EXPLORE DETAILS OF THE HOME (WHETHER, TRIPLEX, DUPLEX, APARTMENT, ETC.) THAT
WOULD PREVIOUSLY HAVE BEEN UNKNOWABLE WITHOUT PHYSICAL INTRUSION, THE SURVEILLANCE 'IS
A SEARCH' AND PRESUMPTIVELY UNREASONABLE. WITHOUT A WARRANT. n Ibid. (See also, II . Case
Discussion, pgs. 2- 5, herein Id.) Confirmed in JARDINES, fuy CONCWRRING JUSTICES. Id.
It is clear in RIVAS that the officers where in violation of the UNITED STATES
CONSTITUTIONAL FOURTH AMENDMENT AND TEXAS CONSTITUTION ART. I, § 9 with the adopted
STATUTORY EXCLUSIONARY RULE, TEXAS CODE CRIMINAL PROCEDURE ART. 38.23, and EXCLUSION OF
EVIDENCE WAS TO BE APPLIED EVEN IF, NOT THAT RELATOR CONCEDES, THE SECOND DISTRICT
COURT OF APPEALS WAS LAWFULLY CAPABLE OF DETERMINING WHETHER PROBABLE CAUSE EXXSTED IN
THE REMAINDER OF THE SEARCH AFTER OMITTION OF THE DOG - SNIFF, THE COURT OF CRIMINAL
APPEALS HAS ACKNOWLEDGED, IN DAUGHERTY, "Provided the information used to obtain the
warrant IS WHOLLY UNCONNECTED to INFORMATION UNCOVERED DURING EARLIER, INVALID SEARCH."
See herein at pg. 7, n. 2, Id. The officers obtained a SEARCH WARRANT AFTER, NOT UNTIL,
THE DOG- SNIFF, AND "BASED ON A DRUG-SNIFFING DOG'S ALERT TO RIVAS' FRONT DOOR ON THE
SAME DAY THAT THE WARRANT WAS OBTAINED AND EXCUTED," the SECOND DISTRICT COURT OF APPEALS
AFFIRMED RIVAS, DETERMING MAGISTRATE HAD SUBSTANTIAL BASIS, AS SAID, FOR PROBABLE CAUSE.
See, Second District Court of Appeals, Per Curiam Opinion, September 25, 2014, pg. 2 Id.
The EXCLUSIONARY DETERRENT is applicable and;past .due .in this JUDICIAL SYSTEM. Id.
15
15
..
RELATOR PRAYS, after due consideration of the facts throughout this entire appeal
process and documentation submitted throughout said process, the COURT OF CRIMINAL
APPEALS will once again make the RIGHT - RULING to: not only overturn the conviction
due to the FOURTH AMENDMENT VIOLATION, but to order the exoneration due to unlawful
search and seizure, thereby no evidence for conviction or revocation of defered
adjudication; order defered adjudication granted for time served on present case; order
of actual innocence due to FOURTH AMENDMENT VIOLATION, thereby no evidence to convict;
JUDICIALLY ACKNOWLEDGE THE KYLLO CASE for any DRUG.,.. SNIFFING DOG CASES OF HOMES,· AND
HAS NOT HAD A SEARCH WARRANT ISSUANCE TO UTILIZE SAID DOG.IN THE SEARCH AS UNLAWFUL
SEARCHES, THEREBY OVERTURNING SAID CASES FOR ILLEGAL SEARCH AND SEIZURE WITHOUT WARRANT
Ln violation of UNITED STATES FOURTH AMENDMENT AND TEXAS ARTICLE I, § 9, of said
CONSTITUTIONS; and utilize TEXAS CODE CRIMINAL PROCEDURE ART. 38.23 for said violation
of UNITED STATES AND TEXAS CONSTITUTIONS.
RELATOR FURTHER PRAYS, THE COURT OF CRIMINAL APPEALS, to consider the DETERENT
EFFECT OF THE EXCLUSIONARY RULE AND THEREBY APPLY KYLLO TO DRUG - SNIFFING DOG SEARCH
AND SEIZURES WITHOUT PRIOR SEARCH WARRANT AS UNREASONABLE TO DETER ALL PRIOR AND ALL
FUTURE FOURTH AMENDMENT VIOLATIONS IN THE STATE OF TEXAS JUDICIAL SYSTEM.
To DENY WITHOUT WRITTEN ORDER in this case is to enter into the CONSPIRACY TO CONCEAL
AND IGNORE STATE AND FEDERAL PRECEDENT.:as presented in the attached AFFIDAVIT brought
before the TEXAS STATE ATTORNEY GENERALS OFFICE for consideration as presented.
IN FINALITY, the COURT OF CRIMINAL APPEALS should further consider that the warrant
as issued in.this case, beyond the jurisdiction of the MUNICIPLE COURT PRO-TEM JUDGE,
was in violation ·Of TEXAS CODE CRIMINAL PROCEDURE ART. § 4.14, unlawfully issued,
executed and of no force or effect as was briefed
APPEALS to no avail, THEREBY ABUSING DISCRETION IN RE-AF
1400 FM 3452
PALESTINE, TEXAS 75803 - 2350
16
lb
IN THE MATTER OF: RECEIVED DATE =--=-JW~/~~d--=--0__:_/___:_{2--=0~I-~_
CRIMINAL DISTRICT COURT NO. 4
TARRANT COUNTY, NO.(S) 1215971D & JUL 2 7 2015
1215973D; JUDGEMENT & SENTENCE; OFFICE OF THE TEXAS ATTORNEY
COURT OF APPEALS
SECOND DISTRICT COURT OF APPEALS . SEk,QND DISTRiCT OF TE.X~~
NO. ( s) 02-12-00062-CR & 02-12-00063-'rif:BRA SPISAK, CLERKt;I"JERAL I AUSTIN I TEXAS
JUDGEMENT ON REMAND AFFIRMED; & GERARDO TOMAS RIVAS #01766735
TEXAS COURT OF CRIMINAL APPEALS
NO.(S) PD-0490-13 & PD-0491-13 v.
VACATED & REMANDED FOR RECONSIDERATION THE STATE OF TEXAS
THE STATE OF TEXAS § § § § §
COUNTY OF ANDERSON § § § § §
AFFIDAVIT COMPLAINING OF:
CONSPIRACY TO CONCEAL AND IGNORE STATE AND FEDERAL LAW PRECEDENT
TO UNLAWFULLY GONVICT AND CONFINE AFFIANT
My name is GERARDO TOMAS RIVAS, TDCJ-ID NO. 01766735, AFFIANT PRO-SE for the matters
as listed above and deposed herein, currently confined in the TDCJ-ID POWLEDGE UNIT T/C,
Dorm N, Bunk 64, located at 1400 FM 3452, ANDERSON-COUNTY, PALESTINE, TEXAS 75803-2350.
AFFIANT is:
1) A UNITED STATES citizen born in SAN ANTONIO, TEXAS on 05/03/65, current age 50;
2) Capable to accurately perceive, recall, recounL the facts based on personal
knowledge as said facts are true and correct; and,
3) Competent' to testify to the matters of fact.
AFFIANT files this AFFIDAVIT-COMPLAINING OF:
A "CONSPIRACY TO CONCEAL AND IGNORE STATE AND FEDERAL LAW PRECEDENT," particularly,
STATE LAW: TEXAS CODE CRIMINAL PROCEDURE ARTICLE § 4.14, JURISDICTION OF MUNICIPAL
COURT; CASE LAW: STATE v DAUGHERTY, 931 S.W.2d 268, 283 (Tex. Crim. App. 1996); and,
KYLLO v ;UNITED STATES I 533 US''27 I 121 s Ct 2038 I 150 L. Ed. 2d 94 I NO. 99-8508 I ARGUED
FEBRUARY 20, 2001, DECIDED JUNE ll, 2001, UNDER PRIVACY GROUNDS, and CONCURRED as such .
by 3 SUPREME COURT JUSTICES, specifically, JUSTICE KAGAN, JUSTICE GINSBURG, AND JUSTICE
SOTOMAYOR enjoined in FLORIDA·v JARDINES, 569 US , 133 S. Ct. 1409, 185 L. Ed. 2d 495,
81 USLW 4209, NO. 11-564, writ of certiorari, DELIVERED MARCH 26, 2013, DECIDED UNDER
PROPERTY GROUNDS; and, EXCLUSIONARY RULE REFUSAL: For the POLICE SEARCH AND SEIZURE IN
VIOLATION OF THE FOURTH AMENDMENT, ARTICLE I, § 9 of the TEXAS CONSTITUTION with adopted
STATUTORY EXCLUSIONARY RULE, TEXAS CODE CRIMINAL PROCEDURE ARTICLE § 38.23, as conceded
by THE COURT OF CRIMINAL APPEALS, PER CURIAM, OPINION, stating, "A DOG SNIFF AT HIS
FRONT DOOR LED TO THE CHARGES AGAINST HIM;" Thereby, "TO UNLAWFULLY CONVICT AND CONFINE
AFFIANT," inter-alia, discussed in the BRIEFS, ADDENDUMS, etc. supplied the COURT'S
in this entire APPEAL PROCESS. When properly applied calls for EVIDENCE EXCLUSION.
1 17
AFFIANT deposes:
AFFIANT asserts the TARRANT COUNTY DISTRICT ATTORNEY, CRIMINAL DISTRICT COURT NO.
4, and THE SECOND DISTRICT COURT OF APPEALS (HEREIN, JUDICIAL SYSTEM), as the record
indicates, are intentionally, knowingly, and/or recklessly undermining the STATE AND
FEDERAL PRECEDENTED RULE OF LAW, not only to the point of AN ABUSE OF DISCRETION, but
too the .ENJOINING OF A CONSPIRACY TO CONCEAL AND IGNORE. STATE AND FEDERAL . LAW PRECEDENT,
CONSTITUTING A SERIOUS LEGAL COLLATERAL CONSEQUENCE TO THE POINT OF AN UNLAWFUL, ILLEGAL,
AND VOID SENTENCE AND CONVICTION UNLAWFULLY RESTRAINING THIS AFFIANT.
AFFIANT asserts this intentional, known~ and/or reckless ignorance is conceived in
a manner that involves SUBSTANTIAL RISK OF AFFIANT'S LIBERTY. This collation of
circumstances inferred from the concert actions among the al1eged participants listed
above (JUDICIAL SYSTEM) is sufficient circumstantial evidence, under FEDERAL. LAW, to
prove an existance of the conspiracy to deny this AFFIANT'S LIBERTY (See, 18 USCA § 371;
also, US v THON, 917 F 2d 170, Id.).
AFFIANT asserts THE COURT OF CRIMINAL APPEALS in the PER CURIAM, OPINION, DELIVERED
OCTOBER 23, 2013, granted a RIGHT RULING within the STATE AND FEDERAL LAW PRECEDENT by
RIGHTFULLY ACKNOWLEDGING: ";. .. A dog sniff at his (AFFIANT'S) front door led to the
charges against him ... " and, "The (SECOND DISTRICT) COURT OF APPEALS did not have the
BENEFIT OF JARDINES. Accordingly., we grant Appellant's (AFFIANT'S) petitions for
discretionary review, VACATE the' judgements of the COURT OF APPEALS, and REMAND these
cases to the COURT OF APPEALS 'IN LIGHT OF JARDINES.'n The COURT OF CRIMINAL APPEALS
CONCEDED: " ... Appellant (:AFFIANT).has filed petitions for discretionary review ARGUING
that the (SECOND DISTRICT) COURT OF APPEALS ERRED UNDER THE SUPREME COURT'S RECENT
OPINION 'IN' FLA. v JARDINES, US , 133 S. Ct. 1409 (2013) ... " The RECENT OPINION
niNn FLA. v JARDINES, that this AFFIANT WAS AND HAS ARGUED in this entire APPEAL PROCESS
has been a CASE ARGUED FEBRUARY 20, 2001, DECIDED JUNE 11, 2001, was a CONCURRED OPINION
BY 3 SUPREME COURT JUSTICES, niN JARDINES1n specifically, JUSTICES, KAGAN, GINSBURG,
and SOTOMAYOR citing that KYLLO v UNITED STATES, 533 U.S. 27, 121 S. Ct. 2038, 150 LEd 2d
94, NO. 99-8508, enjoined:
FLORIDA v JARDINES, KAGAN, J, concurring, cited as 569 US ___ (2013) l - 4, and
:·. ·., ...
specifically; " ... It is not suprising that in a case involving a search of a home,
PROPERTY CONCEPTS AND PRIVACY CONCEPTS SHOULD SO ALIGN. The LAW OF PROPERTY "naturally
enough enfluence[s]" our "shared social expectations" of what places should be free
from governmental excursions. GEORGE v RANDOLPH, 547 U.S. 103, 111 (2006); see RAKAS v
ILLINIOS, 439 U.S. 128, 143, n. 12 (1978). And so the sentiment "my home is my own,"
while originating in PROPERTY LAW, NOW ALSO DENOTES A COMMON UNDERSTANDING - EXTENDING
EVEN BEYOND THAT LAW'S FORMAL.' PROTECTIONS - ABOUT AN ESPECIALLY PRIVATE SPHERE. JARDINES'
home was his PROPERTY; IT WAS ALSO HIS MOST INTIMATE AND FAMILIAR SPACE. The analysis
proceeding from each of those facts, as today's decision reveals, runs mostly along the
2 !8
same path.
"I CAN THINK OF ONLY ONE DIVERGENCE: IF WE HAD DECIDED THIS CASE (JARDINES) ON
-- --
PRIVACY GROUNDS, WE WOULD HAVE REALIZED THAT KYLLO v UNITED STATES 1 533 U.S. 27 ( 2001) 1
-- ----
ALREADY RESOLVED IT. The KYLLO COURT HELD that POLICE OFFICERS CONDUCTED A SEARCH when
they USED A THERMAL-IMAGING DEVICE TO DETECT HEAT EMANATING FROM .A PRIVATE HOME (A
MULTI-FAMILY RESIDENCE, SPECIFICALLY ,A_TR:]PLEX), EVEN THOUGH THEY ~ITI'ED NO TRESPASS.
HIGHLIGHTING OUR INTENTION TO DRAW BOTH A "FIRM" AND A "BRIGHT" LINE AT "THE ENTRANCE
TO THE HOUSE 1" Id. , at 40, WE ANNOUNCED THE FOLI.afiNG RULE:
"WHERE, AS HERE (AFFIANT'S CASES INCLUDED) 1 THE GOVERNMENT USES A DEVISE that is
NOT IN GENERALPUBLICUSE, TO EXPLORE DETAILS OF THE HOME THAT WOULD PREVIOUSLY HAVE
1
BEEN UNIIbid.
"That 'FIRM' and 'BRIGHT' RULE GOVERNS THIS CASE (EXPLAINING PRECISELY-AFFIANT'S
ASSERTIONS, SPECIFICALLY): The POLICE OFFICERS here conducted a search because they
used~ 'device ... not in general public use' (A TRAINED DRUG DETECTION DOG) to 'explore
details of the home' (THE PRESENCE OF CERTAIN SUBSTANCES) that they would not otherwise
have discovered without entering the premises." JARDINES1 supra, CONCURRING .3UPREME
COURT JUSTICES/ Ibid; emphasis throughout AFFIANT'S.
AFFIANT has established both, STANDING AND AUTOMATIC STANDING, to have the JUDICIAL
SYSTEM "DETERMINE WHETHER THE NON-PHYSICAL INTRUSION CONSTITUTED A 'SEARCH' UNDER THE
'KATZ REASONABLE EXPECTATION OF PRIVACY.'" KATZ v US, 389 U.S. 347, 88 S. Ct. 507, 19 LEd
2d (1967). ·By reason of this SUPREME COURT. decision here, PROpERTY RIGHTS "ARE NOT THE
SOLE MEASURE OF THE FOURTH AMENDMENT VIOLATIONS/ "SOLDAL v COOK COUNTY, 560 U.S. 56, 64
(1992) - KYLLO, supra, has too, as concurred in JARDINES, supra, shown that FOURTH
AMENDMENT VIOLATIONS through PRIVACY. RIGHTS take FEDERAL PRECEDENT that the named
JUDICIAL SYSTEM UNREASONABLY REFUSES TO EXTEND THAT PRINCIPLE TO THIS NEW CONTEXT
WHERE IT DOES APPLY AND IS'0BJECTIVELY UNREASONABLE, WILLIAMS, 529 U.S. at 409, 411, Id. -
but though KATZ may add to the baseline, it does not subtract anything from the ....
AMENDMENT'S PROTECTIONS. "when the GOVERNMENT does engage in [a] physical intrusion of
a CONSTITUTIONALLY PROTECTED AREA," US v KNOTTS, 460 U.S. 276, 289 (1983) (Brennan, J.,
concurring in the judgement).
AFFIANT asserts, KYLLO supra, established, living in a TRIPLEX, a multi -family
residence, much like AFFIANT'S APARTMENT, that the "NON-PHYSICAL INTRUSION WAS A
'SEARCH' AND IS PRESUMPTIVELY UNREASONABLE WITHOUT A WARRANT," as conducted on AFFIANT'S
APARTMENT "PRIOR TO 'ANY WARRANT ISSUANCE, HAVING NO EXIGENT CIRCUMSTANCES, CROSSING
THAT EIRM AND BRIGHT LINE AT THE ENTRANCE OF AFFIANT'S HOME,' then using the INFORMATION
UNCOVERED TO PROCURE A SEARCH WARRANT FROM A 'MUNICIPAL COURT PRQ-TEM JUDGE, WITH
QUESTIONABLE JURISDICTION FOR ISSUANCE.'" s~~~ at,t,O:l~h~d MANDAMUS at pg·~ 'J1 D., Id .•
3
Under TEXAS LAW, TEXAS CODE CRIMINAL PROCEDURE ARTICLE §4.14, JURISDICTION OF
MUNICIPAL COURT, the MUNICIPAL COURT PRO-TEM JUDGE'S authority extends only to the
relatively straightforward task of issuing arrest warrants for breach of municipal
ordinances. To issue SEARCH WARRANTS, an individual must be capable of making the
PROBABLE CAUSE JUDGEMENTS INVOLVED. As JUSTICE STEVENS put in writing for the Court in
u·~s·: v ROSS, 465 U.S. 798, 823, n. 32, 72 L. Ed. 2d 572, 102 S. Ct. 2157; citing SHADWICK v
CITY OF TAMPA, 407 U.S. 345, 32 LEd 2d 783, 92 S. Ct. 2219 (1972); as cited in ILLINIOS v
GATES, 462 U.S. 213, 262.
JUSTICE STEVENS continues, I would apply the EXCLUSIONARY RULE when it is plainly
evident that a MAGISTRATE or JUDGE HAD NO BUSINESS ISSUING A WARRANT. See, AGUILAR v
TEXAS, 378 U.S. 108, 12 LEd 2d 723, 84 S. Ct. 1509 (1964); NATHANSON V US, 290 U.S. 41, 78
LEd 159, 54 S. Ct. 11 (1933). Similarly, the good faith exception would not apply if
the MATERIAL PRESENTED to the MAGISTRATE OR JUDGE "IS FALSE OR MISLEADING," FRANKS v
DELAWARE, 438 U.S. 154, 57 LEd 2d 667, 98 S. Ct. 2674 (1978), ... ; GATES, supra, 263-264,
Id ..
In STATE v''DAUGHERTY, 931 S.W.2d 268, 283, n. 4 ( Tex Crim App 1996) , the TEXAS
COURT OF CRIMINAL APPEALS, ACKNOWLEDGES;
"We: also NOTE THE SUPREME COURT has held EVIDENCE FOUND PURSUANT TO AN EXECUTION OF
A VALID SEARCH WARRANT IS ADMISSABLE 'PROVIDED THE INFORMATION USED TO OBTAIN THE
WARRANT IS WHOLLY UNCONNECTED' TO INFORMATION UNCOVERED 'DURING AN EARLIER 1 INVALID
SEARCH.'" citing, SEGURA v US, 468 U.S. 796, 104 S. Ct. 3380, 82 LEd 2d 599 (1984); MURRY
v US, 487 U.S. 533, 108 S. Ct. 2529, 101 LEd 2d 472 (1988)( citing, NIX v WILLIAMS, 467
U.S. 431, 104 S. Ct. 2501, 81 LEd 2d 377 (1984), Id.
In WONG SUN v US, 371 U.S. 471, 83 S. Ct. 407, 9 LEd 2d 441 (1963), the UNITED STATES
SUPREME COURT, RULED:
"Where PROBABLE CAUSE for SEARCH OR ARREST is established by PRIOR ILLEGAL SEARCH
OR ARREST, then the same will be TAINTED":'l'HEREBY and THE FRUITS THEREOF SUPPRESSED,
therefore,, :NOT ONLY IS 'ANY EVIDENCE OBTAINED THEREBY INADMISSABLE' as the RESULT OR
EXPLOITATION OF THAT PRIMARY ILLEGALITY IT IS AS WELL INADMISSABLE AS 'FRUITS OF THE
POISONOUS TREE.'" Id.
The MANDAMUS, attached at pgs. 2 - 7, clearly establish that THE JUDICIAL SYSTEM,
complained of herein, first, HAD NO BUSINESS ISSUING A WARRANT AND THE MATERIAL
!)RESENTED WAS CLEARLY MISLEADING AS "DOG SNIFF WAS USED AS CONSIDERATION FOR PROBABLE
CAUSE;" second, THE DOG-SNIFF INFORMATION USED TO OBTAIN THE WARRANT WAS WHOLLY
CONNECTED TO THE INFORMATION UNCOVERED DURING THE EARLIER, INVALID SEARCH; and, the
PROBABLE,CAUSE FOR SEARCH AND ARREST OF AFFIANT WAS ESTABLISHED BY THE PRIOR ILLEGAL
SEARCH BY THE DOG-SNIFF; THEREFORE, NOT ONLY IS ANY EVIDENCE THEREBY INADMISSABLE AS
THE RESULT OR EXPLOITATION OF THAT PRIMARY ILLEGALITY IT IS AS WELL INADMISSABLE AS
FRUITS OF THE POISONOUS TREE.
4
)l)
The STATE was relieved of establishing that the arrest was reasonable. See,
OURSBOURN v STATE, 228 S.W.3d 65, 70 (Tex App- Houston [lst'Dist] 2009, no pet)(finding
egregious harm on remand because STATE was relieved of burden of establishing
voluntariness of statement). The TRIAL COURT JUDGE was aware of the effect·of an
unlawful/illegal seizure and aware that any evidence obtained as a result of an
unlawful/illegal seizure could not be considered for any purpose. Evidence TAINTED BY
UNLAWFUL POLICE ACTION is TRADITIONALLY BARRED AS FRUITS OF THE POISONOUS TREE. See,
SEGURA v UNITED STATES, 368 U.S. 796, 804 (1984); WONG SUN v UNITED STATES, 371 U.S. 471
(1963). Assuming the arrest was illegal, there is a CLEAR AND CASUAL CONNECTION BETWEEN
THE ARREST, !AND THE _ARREST AND DISCOVERY OF THE CHARGE. The STATE has failed to allege
that ffiHE DISCOVERY OF THE DRUGS WAS SUFFICIENTLY ATTENUATED FROM THE ALLEGED ILLEGAL
SEARCH, ;.;sEIZURE, AND ARREST TO PURGE THE TAINT OF THE ALLEGED ILLEGAL ARREST, SEARCH
AND SEIZURE. BROWN v ILLINIOS, 422 U.S. 590 (1975); BELL v STATE, 724 S.W.2d 780 (Tex Crim
App 1986). The INTENTIONAL OMISSION of ARTICLE 38.23 CONSIDERATION not only vitally
affects the defensive theory and PEOPLE as a result suffer egriegious harm, said·omissd:on
fails to EXCLUDE EVIDENCE "OBTAINED BY AN OFFICER OR CJl'HER PERSON IN VIOLATION OF 'ANY'
PROVISIONS OF THE CONSTITUTION OR LAWS OF THE STATE OF TEXAS, OR OF THE CONSTITUTION OR
LAWS OF THE UNITED STATES," TEX CODE CRIM PROC ART 38.23, and truly applicable in
AFFIANT'S CASES.
In THE KYLLO COURT THE UNITED STATES SUPREME COURT SAID, "We have said that the
FOURTH AMENDMENT draws 'A FIRM LINE AT THE ENTRANCE TO THE HOUSE,' PAYTON, 445 U.S., at
590. That line, we think, MUST BE.NOT:.ONLY FIRM BUT ALSO BRIGHT - which requires clear
specification:· of those methods of surveillance that require a. warrant. While it is
certainly possible to conclude from the videotape of the thermal imaging that occurred
in this case (KYLLO) that no 'significant' compromise of the homeowner.'s privacy has
occurred, WE MUST TAKE THE LONG VIEW, FROM THE ORIGINAL MEANING OF THE FOURTH AMENDMENT
FORWARD. 'The FOURTH AMENDMENT is to be CONSTRUED IN THE LIGHT OF WHAT WAS DEEMED AN
UNREASONABLE SEARCH AND SEizuRE WHEN IT WAS ADOPTED, and in a manner which will conserve
public interests as well as the interests and.rights of individual citizens.' CARROLL
v UNITED STATES, 267 U.S. 132, 149 (1925).
AFFIANT ASSERTS, "Where-. the; GOVERNMENT uses. :a device that is not in general public
use (A DRUG DETECTION DOG, WITHOUT WARRANT), to explore the home that would previously
have been unknowable without physical intrusion, the surveillance IS A ' SEARCH' AND IS
PRESUMPTIVELY UNREASONABLE WITHOUT A WARRANT. KYLLO, 533 U.S. 27, 40 (2001) JARDINES, 569
us , slip op., at 3, II, and KAGAN J., concurring slip op., a't 3 - 4."
In AFFIANT'S CASE, the warrantless canine sniff (A SENSE - ENHANCING TOOL) was
conducted in violation of the EXISTING UNITED STATES SUPREME COURT JUDICIAL PRECEDENT
ESTABLISHED JUNE 11, 2001 IN KYLLO v UNITED STATES, 533 U.S. 27, 121 S. Ct. 2038, 150 LEd
5
2d 94, ON PRIVACY GROUNDS; and now, FLORIDA v JARDINES, 569 US , 133 S. Ct. 1409, 185
LEd 2d 495, 81 USLW 4209 (2013), ON PROPERTY GROUNDS, THEREFORE, THE OFFICERS may be
properly charged with knowledge, THAT THE SEARCH WAS UNCONSTITUTIONAL UNDER +HE FOURTH
AMENDMENT. PELTIER, 422 U.S. at 542. Furthermore, "in the sanctity of the home, ALL
DETAILS ARE INTIMATE DETAILS. See e.g./ UNITED STATES v KARO, 468 U.S. 705; DOW CHEMICAL
CO. v UNITED STATES, 467 U.S. 227, 238, distinguished; see also, KYLLO, supra, at 28, Id.
AFFIANT ASSERTS/ the JUDICIAL SYSTEMt herein/ IN AN OBJECTIVELY UNREASONABLE MANNER
has continually, REFUSEDTOEXTEND THIS PRINCIPLE TO THIS NEW CONTEXT WHERE 3 SUPREME
COURT JUSTICES CONCURRINGLY INSIST THAT IT APPLIES as specified in JARDINES, supra,Id.
See, attached MANDAMUS at pg. 8, IV. FEDERAL PRECEDENTS (LAW).
The STATES BRIEF ON REMAND, at pgs. 8 -9~. f.n. 3i stating: "The record in the
instant case is not sufficient to determine whether the area outside Appellant's
(AFFIANT'S) apartment door was part of the curtilage." Id.
AFFIANT ASSERTS, OLIVER v UNITED STATES, 466 U.S. 170 (1984)/ "We (THE UNITED STATES
SUPREME'·:COURT) therefore regard the area 'IMMEDIATELY SURROUNDING AND ASSOCIATED WITH
THE HOME' - what OUR CASES CALL THE CURTILAGE - as 'PART OF THE HOME ITSELF FOR FOURTH
AMENDMENT PURPOSES.'" OLIVER, supra, at 180.
"This AREA AROUND THE HOME IS 'INTIMATELY LINKED TO THE H~, BOTH PHYSICALLY AND
PSYCHOLOGICALLY, 'AND IS WHERE' 'PRIVACY EXPECTATIONS ARE MOST HEIGHTENED. ' " CALIFORNIA v
CIRAOLO, 476 U.S. 207, 213 (1986).
"While BOUNDARIES OF THE CURTILAGE are generally 'CLEARLY MARKED,' the 'CONCEPTION
DEFINING THE CURTILAGE' is at any rate FAMILIAR ENOUGH that it is 'EASILY UNDERSTOOD
FROM OUR DAILY EXPERIENCE.'" OLIVER, supra, at 182, n. 12.
HOWEVER, THE DOOR OF THE RESIDENCE IS CLEARLY THE ENTRANCE POINT TO THE HOME AND
THE. CURTILAGE OF THE HOME WHERE "THE FOURTH AMENDMENT DRAWS A FIRM LINE AT THE ENTRANCE
TO THE HOUSE," PAYTON, 4§5. US, at 590. "THAT LINE," THE UNITED STATES SUPREME COURT
THINKS, "MUST BE NOT ONLY FIRM Bur ALSO BRIGHT - WHICH REQUIRES CLEAR SPECIFICATION OF
THOSE METHODS OF SURVEILLANCE THAT REQUIRE A WARRANT •• " KYLLO, supra, at 40.
AFFIANT ASSERTS, THE COURT OF CRIMINAL APPEALS, PER CURIAM, OPINION, that states:
"Appellant was charged with two counts of possession of a controlled substance with
the intent to deliver. A DOG SNIFF AT HIS FRONT DOOR LED TO THE CHARGES AGAINST HIM •• "
VACATED AND REMANDED, OCTOBER 23, 2013, Id.
AFFIANT ASSERTS, KYLLO, SINCE JUNE 11, 2001, has ESTABLISHED THAT THE "NON-PHYSICAL
INTRUSION WAS A SEARCH AND IS PRESUMPTIVELY UNREASONABLE WITHOUT A WARRANT":. •WHEN
CONDUCTED ON ANY DUPLEX, APARTMENT/ HOMEt DWELLING, ETC., especially AFFIANT'S APARTMENT
PRIOR TO ANY WARRANT ISSUANCE, HAVING NO EXIGENT CIRCUMSTANCES, CROSSING BOTH A FIRM. ··
AND BRIGHT LINE AT THE ENTRANCE TO AFFIANT'S APARTMENT, THEREBY USING A DEVICE / TOOL •••
NOT IN PUBLIC USE ( KELEV, DRUG DOG) TO EXPLORE DETAILS OF THE APARTMENT (PRESENCE OF
6 22
CERTAIN SUBSTANCES) THAT THE POLICE ~D NOT OI'HERWISE DISCOVER WITHOUT ENTERING THE
PREMISES. ( Explained in AFFIANT'S ADDENDUM TO RESPONSE OF TARRANT COUNTY DISTRICT
ATTORNEY' LETTER dated Thursday, September 19, 2013, to AFFAINT'S PETITION FOR
DESCRETIONARY REVIEW, at pgs.3 &4, citing JARDINES, KYLLO, KATZ, inter- alia,
ADDENDUM, supra, Id.).
AFFIANT concedes, citing WONG SUN v US, 371 U.S. 471, 83 S. Ct. 407, 9 LEd 2d 441
(1963), "Where, as AFFIANT'S case, PROBABLE CAUSE for SEARCH OR ARREST is established
by prior ILLEGAL SEARCH OR ARREST, then the same will be TAINTED thereby and the FRUITS
THEREOF SUPPRESSED, therefore, not only is ANY EVIDENCE OBTAINED thereby INADMISSABLE
as the RESULT OR EXPLOITATION of that PRIMARY ILLEGALITY is as well INADMISSABLE as
"FRUITS OF THE POISONOUS TREE." The remainder of the SEARCH WARRANT is moot as well. Id.
AFFIANT ASSERTS, while a search conducted 1n objectively reasonable reliance on
binding precedents is not subject to the FOURTH AMENDMENT'S EXCLUSIONARY RULE, in the
present case, the WARRANTLESS CANINE SNIFF was conducted in DEFIANCE WITH THE EXISTING
JUDICIAL PRECEDENT OF KYLLO v UNITED STATES, 533 U.S. 27, 121 S. Ct. 2038, 150 LEd 2d 94,
decided on PRIVACY GROUNDS, a decision established since JUNE 11, 2001 and reaffirmed
in FLORIDA v JARDINES, 569 US , 133 S. Ct. 1409, 185 L. Ed. 2d 495, 81 USLW 4209, No.
11-564, writ of certiorari, delivered MARCH 26, 2013, DECIDED UNDER PROPERTY GROUNDS.
However, while JARDINES may not be applied RETROACTIVELY, KYLLO CLEARLY HAS BINDING
PRECEDENTS FOR RELIANCE AS TO WARRANT ISSUANCE FOR CANINE SNIFF, ESPECIALLY, AS THE
TEXAS COURT OF CRIMINAL APPEALS CONCEDES, "A dog sniff at his (AFFIANT'S) front door
led to the charges against him (AFFIANT)."Per Curiam, opin. VACATE AND REMAND, delivered
OCTOBER 23, 2013, NO.(S) PD-0490-13 & PD-0491-13. Id ..
The UNITED STATE SUPREME COURT RULING IN.KYLLO, supra takes precedents over; TEXAS
COURT CASES OF: PORTER v STATE, 93 S.W.3d 342, 346 (Tex App ~Houston (14th Dist.] 2002,
pet ref'd); RODRIQUEZ v STATE, 106 S.W.3d 224, 228-229 (Tex App- Houston [lst Dist]
2003, no pet), cert denied, 540 U.S. 1189 (2004); and MOST IMPORTANTLY, the SECOND DISTRICT
COURT OF APPEALS issue as addressed in, ROMO v STATE, 315 S.W.3d 565, 573-574 (Tex App -
Fort Worth 2010, pet fef'd) which concluded that canine sniffs of a garage and backyard
fence were not searches under the FOURTH AMENDMENT or the TEXAS CONSTITUTION BECAUSE
THE DOG SNIFFED AREAS·THAT WERE NOT PROTECTED FROM OBSERVATION BY PASSERSBY AND BECAUSE
THE DEFENDANT HAD NO REASONABLE EXPECTATION OF PRIVACY IN THE OOOR OF MARIJUANA ea-tiNG
FROM HIS BACKYARD. Id ..
THE SECOND DISTRICT COURT OF APPEALS cited ROMO for the proposition that a DRUG
DETECTION DOG'S SNIFF of the FRONT DOOR of DEFENDANT'S ( AFFIANT'S) HOME IS NOT A SEARCH
BECAUSE ·THERE IS NO REASONABLE EXPECTATION OF PRIVACY IN THE AREA AROUND AN UNENCLOSED
FRONT DOOR. See RIVAS v STATE, 2013 WL 978911 at *1.
Clearly KYLLO OVERRULES most of these cases, supra, and should be revisited by the
TEXAS COURT OF CRIMINAL APPEALS DUE TO THE WARRANTLESS Il!IREEMI£.SABtE:.:SEAR8HAND.SEIZURES.
·_ :.~>__.:._:~_.:. ,\._'.__ ·:.-. _:..·· '-->--~----··
7
AFFIANT CONCEDES the EXCLUSIONARY RULE "is a judicially created remedy designed to
safeguard FOURTH AMENDMENT RIGHTS generally through its DETERRENT EFFECTS, rather than
a personal CONSTITUTIONAL RIGHT of a party aggrieved." UNITED STATES v CALANDRA, 414
U.S. 338, 348, 94 S. Ct. 613, 38 L Ed2d 561 (1974). The EXCLUSIONARY RULE'S sole purpose
is to DETER FUTURE FOURTH AMENDMENT VIOLATIONS. UNITED STATES v LEON, 468 U.S. 897, 909
n. 2, 104 S. Ct. 3405, 82 LEd 2d 677 (1984), Id. -Furthermore, applicability of THE
EXCLUSIONARY RULE is limited to situations in which DETERRENCE is "thought most
efficaciously served." CALANDRA, supra, 414 US at 348, Id. The ISSUE OF EXCLUSION is
seperate from WHETHER A FOURTH AMENDMENT. VIOLATION OCCURRED. ARIZONA v EVANS, 514 U.S. 1,
13-14, 115 S. Ct. 1185, 131 LEd 2d 34 (1995), Id.
AFFIANT CONCEDES the SUPREME COURT declared that "[w]hen the police exhibit
"deliberate," "reckless," or "grossly negligent" DISREGARD FOR FOURTH AMENDMENT RIGHTS,
the DETERRENT VALUE OF EXCLUSION IS STRONG and tends to outweigh the resulting costs. "
DAVIS v UNITED STATES, US , 131 S. Ct. 2419, 2427, 180 LEd 2d 285 (2011), Id.
AFFIANT further concedes "if the purpose of the EXCLUSIONARY RULE IS TO DETER
UNLAWFUL POLICE CONDUCT, then EVIDENCE OBTAINED .FROM A SEARCH SHOULD BE SUPPRESSED ONLY
i f it can 'be said .the LAW ENFORCEMENT OFFICER HAD ~EDGE, OR MAY PROPERLY BE CHARGED
WITH KNOWLEDGE, .THAT THE SEARCH WAS UNCONSTITUTIONAL UNDER THE FOURTH AMENDMENT."
UNITED STATES v PELTIER, 422 U.S. 531, 542, 95 S. Ct. 2313, 45 LEd 2d 374 (!975), Id.
AFFIANT also concedes the TEXAS COURT OF CRIMINAL APPEALS has HELD THAT THE
EXCLUSIONARY RULE did not PRECLUDE ADMISSION OF EVIDENCE from a WARRANTLESS SEARCH AND
SEIZURE THAT WAS PERMISSIBLE AT THE TIME OF THE SEIZURE. SWINK v STATE, 617 S.W.2d 203,
209-10 (Tex Crim App 1981).
In KYLLO, supra, at 40, the COURT HELD; "We have said that the FOURTH AMENDMENT
DRAWS 'a firm line AT THE ENTRANCE TO THE HOUSE, ' PAYTON, 445 U.S., at 590. THAT LINE,
WE THINK, MUST BE NOT ONLY FIRM BUT ALSO BRIGHT - which REQUIRE CLEAR SPECIFICATION OF
THOSE METHODS OF SURVEILLANCE THAT REQUIRE A WARRANT. While it is certainly possible to
conclude from the videotape of the thermal imaging that occurred in this case that NO
'SIGNIFICANT' COMPROMISE OF THE HOMEOWNER'S PRIVACY HAS OCCURRED, WE MUST TAKE THE LONG
VIEW; FROM THE ORIGINAL MEANING OF THE FOURTH AMENDMENT FORWARD. Id.
" 'The FOURTH AMENDMENT IS TO BE CONSTRUED IN THE LIGHT OF WHAT WAS DEEMED. AN
UNREASONABLE SEARCH AND SEIZURE WHEN IT WAS ADOPTED, AND IN A MANNER WHICH WILL CONSERVE
PUBLIC INTERESTS AS WELL AS THE INTERESTS AND RIGHTS OF INDIVIDUAL CITIZENS.'" CARROLL
v UNITED STATES, 267 U.S. 132, 149 (1925).Id.
"Where, as here (AFFIANT'S CASE ALSO), the Government uses a device that 1s not in
general public use, TO EXPLORE DETAIL OF THE HOME that WOULD PREVIOUSLY HAVE BEEN
UNKNOWABLE WITHOUT PHYSICAL INTRUSION, THE SURVEILLANCE IS A 'SEARCH' AND IS PRESUMPTIVELY
UNREASONABLE. WITHOUT A WARRANT. Id.
8
"Thus, OBTAINING BY SENSE- ENHANCING TECHNOLOGY [A SNIFF BY KELEV THE DRUG -
DETECTION DOG] ANY INFORMATION REGARDING THE HOMES INTERIOR that could NOT OTHERWISE
HAVE BEEN OBTAINED WITHOUT PHYSICAL 'INTRUSION INTO A CONSTITUTIONALLY PROTECTED AREA,'
SILVERMAN v UNITED STATES, 365 U.S. 505, 512, CONSTITUTES A SEARCH - AT LEAST (AS HERE)
[AFFIANT INCLUDED] THE TECHNOLOGY IN QUESTION IS NOT IN GENERAL PUBLIC USE. THIS ASSURES
PRESERVATION OF THAT DEGREE OF PRIVACY AGAINST GOVERNMENT THAT EXISTED WHEN THE FOURTH
AMENDMENT WAS ADOPTED." KYLL01 supra, at 28, b, decided JUNE ll, 2001, Id.
AFFIANT.ASSERTS the KYLLO COURT further HELD "The QUESTION WHETHER A WARRANTLESS
SEARCH OF A HOME IS REASONABLE AND HENCE CONSTITUTIONAL MUST BE ANSWERED NO IN MOST
INSTANCES, ..• " Id. at 28, a; see also, FLORIDA v JOELIS JARDINES, 569 US (2013)
slip op 1 - 5, JUSTICE KAGAN, with whom JUSTICE GINSBURG and JUSTICE SOTOMAYOR join,
concurring (citing KYLLO, AND STATING, "It is not suprising that a case involving a ;,
search of a home, property concepts and privacy concepts should so align).'.' ~:As·KYLLO
made clear, the 'sense-enhancing' tool at issue may be 'crude' or 'sophisticated,' may
be old or new ... , may be either smaller or bigger than a breadbox; still, 'at least
. where (as here)[AFFIANT INCLUDED]' the devise is not 'in general public use,' training
it on a home violates our 'minimal expectation of privacy' - an expectation 'that
exists, and is acknowledged to be reasonable.' "citing KYLLO, 533 us, at 34, 36, Id.
"That does not mean the device 1s off limits, ..• ; it just means police officers cannot
use it to examine a home without a warrant or exigent circumstance. See BRIGHAM CITY v
STUART, 547 U.S. 398, 403- 404 (2006)(describing exigencies allowing the warrantless
search of a home) • JARDINES, KAGAN CONCURRING, at *5, Id. ~,
~FFIANT contends the aforementioned' factual LAW with THE RECORD establishes the
collation of circumstances inferred from the concert actions among the alleged
PARTICIPANTS, listed above as, "JUDICIAL SYSTEM too include ATTORNEY OF RECORD, JIM
SHAW.".With said facts, and/or circumstantial evidence to follow, is sufficient to
prove an existance of a "CONSPIRACY TO CONCEAL AND IGNORE STATE AND FEDERAL PRECEDENT
TO UNLAWFULLY CONVICT AND CONFINE AFFIANT." Although, under FEDERAL LAW, circumstantial
evidence is sufficient to prove an existance of A CONSPIRACY TO DENY AFFIANT'S LIBERTY
(See, 18.USCA § 371; also, US v THON, 917 F 2d 170, Id.).
AFFIANT deposes:
AFFIANT asserts, THE JUDICIAL SYSTEM too include ATTORNEY OF RECORD JIM SHAW, has
had this intentional, known, and reckless ignorance for the FEDERAL PRECEDENT of the
KYLLO V US, supra, Id., DELIVERED and ESTABLISHED JUNE 11, 2001, and TEXAS STATE
PRECEDENT of TEXAS CODE CRIMINAL PROCEDURE, ARTICLE § 4.14, JURISDICTION OF MUNICIPAL
COURT, being ignored in a manner that involves SUBSTANTIAL RISK OF AFFIANT'S LIBERTY.
The facts in STATE v DAUGHERTY, 931 S.W.2d 268, 283 established (Tex Crim App 1996)
the TEXAS COURT OF CRIMINAL APPEALS acknowledges; "The SUPREME COURT has held evidence
found pursuant to an execution of A VALID SEARCH WARRANT IS ADMISSABLE PROVIDED THE
9
INFORMATION USED TO OBTAIN THE WARRANT 'WHOLLY UNCONNECTED TO INFORMATION UNCOVERED
DURING AN EARLIER I INVALID SEARCH. I II
The facts in AFFIANT'S SEARCH WARRANT establish, "The canine ALERTED to the presence
of narcotic odors from the residence, AND INFORMATION WAS INCLUDED IN THE AFFIDAVIT
OFFICER'S USED TO OBTAIN A SEARCH WARRANT FOR AFFIANT'S APARTMENT."
The facts of both, the KYLLO CASE established since JUNE 11, 2001, and AFFIANT'S
PRESENT CASE was decided under PRIVACY RIGHTS, with AFFIANT'S CASE BEING VACATED AND
REMANDED.
The facts of the TEXAS COURT OF CRIMINAL APPEALS on OCTOBER 23, 2013 IN AFFIANT'S
PRESENT CASE ESTABLISHED, "A DOG SNIFF LED TO THE CHARGES AGAINST HIM."
The facts in AFFIANT'S PRESENT CASE and FEDERAL CASE LAW SINCE 1978 ESTABLISH the
good faith exception does not apply as THE MATERIAL PRESENTED IN OFFICERS AFFIDAVIT to
the MUNICIPAL COURT PRO-TEM JUDGE could be conscrued as .MISLEADING and possibly, as
such, FALSE.
The facts of TEXAS LAW particularly, TEXAS CODE CRIMINAL APPEALS ARTICLE § 4.14,
JURISDICTION OF MUNICIPAL COURT, and FEDERAL CASE LAw,· at minimum since 1972, ESTABLISHES,
"The PRO-TEM JUDGE of the MUNICIPAL COURT OF FORT WORTH, TEXAS has authority that
'EXTENDS ONLY' to the RELATIVELY STRAIGHT FORWARD TASK OF ISSU~ ARREST WARRANTS FOR
BREACH OF MUNICIPAL ORDINANCES." THEREBY, AFFIANT'S WARRANT FOR SEARCH AND ARREST WAS
TO BE CONSIDERED OF NO FORCE OR EFFECT AS ISSUED, UNLAWFULLY CONVICTING AND CONFINING·
AFFIANT ThlROUGH SAID SEARCH AND ARREST.
The facts of TEXAS LAW, supra, and FEDERAL CASE LAW SINCE 1933 ESTABLISHES, the
MUNICIPAL COURT PRO-TEM JUDGE of FORT WORTH, TEXAS had NO BUSINESS ISSUING THE SEARCH
AND ARREST WARRANT.
The facts BRIEFED BY AFFIANT HEREIN, THE ATTACHED MANDAMUS, AND RECORDS OF BRIEFINGS
THROUGH THIS ENTIRE APPEAL PROCESS ESTABLISH THE JUDICIAL SYSTEM, as referenced herein,
too include ATTORNEY OF RECORD JIM SHAW, HAS CHOSE TO, NOT ONLY ABUSE THEIR DISCRETION
BUT HAVE DECIDED THROUGH THEIR ACTION TO ENTER INTO A "CONSPIRACY TO CONCEAL AND IGNORE
STATE AND FEDERAL PRECEDENT TO UNLAWFULLY CONVICT AND CONFINE AFFIANT .• n
AFFIANT is reminded of a case very similar to this PRESENT CASE in which an
ATTORNEY OF RECORD, much like JIM SHAW, called a witness, much like OFFICER J.C.
WILLIAMS, and through questioning established the OFFICER had IGNORED PROPER PROCEDURE,
FAILED TO DO~A· PROPER INVESTIGATION OF CORROBORATING FACTS AS TO THE ACCUSED, FAILED
TO OBTAIN A SEARCH WARRANT TO USE A TOOL NOT IN GENERAL PUBLIC USE, SUCH AS KELEV THE
DRUG DETECTION DOG, EVEN WENT TO A COURT, MUCH LIKE THE MUNICIPAL COURT PRO-TEM JUDGE
OF FORT WORTH, TEXAS, WHO LACKED JURISDICTION UNDER TEXAS LAW TO ISSUE SAID SEARCH
WARRANT, however, ATTORNEY FAILED TO ESTABLISH ANY RULING OR MAKE ANY OBJECTIONS TO
PRESERVE THESE ERRORS, NOR WERE THEY ADDRESSED IN THE APPEAL PROCESS, MUCH LIKE ATTORNEY
10
OF RECORD JIM SHAW.
HOWEVER, THE TRIAL JUDGE, MUCH LIKE JUDGE MIKE THOMAS, during questioning of the
witness, raises his hand with all questioning coming to a stop, and he says to the
PROSECUTING ATTORNEY AND ASSISTANT, MUCH LIKE SARAH E. BRUNER WITH ASSISTANT BROOKE
PANUTHOS, "THIS IS WHAT I '_M TALKING ABOUT THESE GUYS, n pointing to OFFICER on witness
stand, "ARE IN SUCH.A HURRY TO GET THIS GUY,n pointing to DEFENDANT, nTHAT THE PROPER
. PROCEDURES ARE NOT BEING FOL~. THIS. IS WHAT WE'RE NEEDING TO DEAL WITH. DO YOU SEE
THAT ?" Then the PROSECUTOR, IN FEAR THE JUDGE WOULD DO THE RIGHT THING AND EXCLUDE
THE EVIDENCE, THEREBY DISMISS THE CASE CAN ONLY REPLY, nYES YOUR HONOR, YES YOUR HONOR,
YES YOUR HONOR," all the-while JUDGE FULLY-AWARE HE HAD A DUTY AND OBLIGATION TO DO.
JUST THAT, DISMISS THE CASE, CHOSE TO ABUSE HIS DISCRETION, IGNORING THE FACTS OF BOTH
A FOURTH AMENDMENT VIOLATION, AND TEXAS LAW VIOLATION, TO THEN GESTURE WITH HIS HAND
FOR THE QUESTIONING TO CONTINUE. However, upon DEFENDANT receiving the TRANSCRIPTS
THIS PORTION HAD BEEN ENTIRELY OMITTED.
When the EXCLUSIONARY RULE'S SOLE PURPOSE IS TO DETER FUTURE FOURTH AMENDMENT
VIOLATIONS, Id., citing UNITED STATES v LEON, 468 U.S. 897, 909 n.2, 104 S. Ct. 3405, 82 L
Ed 2d 677 (1984), and when APPLICABILITY OF THE EXCLUSIONARY RULE is limited to
SITUATIONS IN WHICH DETERRENCE IS "THOUGHT MOST EFFICACIOUSLY SERVED," DAVIS, 131 S. Ct.
at 2426, citing CALANDRA, 414 U.S. at 348, with the SUPREME COURT declaring that "[w]hen
the police exhibit 'deliberate,' 'reckless,' or 'grossly negligent' DISREGARD FOR
FOURTH AMENDMENT RIGHTS, THE DETERRENT VALUE OF EXCLUSION IS STRONG AND TENDS TO
OUTWEIGH THE RESULTING COSTS." DAVIS,supra, .at 2427, Id ..
It is very clear from the KYLLO CASE, supra, that established since JUNE 11, 2001,
that the WARRANTLESS SEARCH WITH KELEV THE DRUG DETECTION DOG WAS NOT PERMISSABLE AT
THE TIME OF SAID SEARCH, NOR HAS IT BEEN SINCE JUNE 11, 2001, thereby A FOuWITH AMENDMENT
VIOLAT!ON OCURRED.
c
The "MOST EFFICACIOUSLY SERVED" DETERRENT IS TO NOT ONLY OVERTURN THE AFFIANT'S
PRESENT CASE FOR A DELIBERATE, RECKLESS, AND GROSSLY NEGLIGENT DISREGARD FOR FOURTH
AMENDMENT RIGHTS VIOLATION, BUT TO OVERTURN ALL VIOLATIONS WHERE A DRUG DETECTION DOG
HAS BEEN USED IN THE SAME MANNER WITHOUT FIRST PROCURING A SEARCH WARRANT AS ESTABLISHED
JUNE 11, 2001, in KYLLO v US, supra, Id. Thereby ceasing the lower COURT OF APPEALS
UNCONSTITUTIONAL RULINGS WITH AFFIRMATIONS OF CONVICTIONS THROUGH SAID ILLEGAL /
UNLAWFUL SEARCH AND SEIZURES ESTABLISHED UNDER FEDERAL PRECEDENT OF KYLLO.
AFFIANT is as well covered under TEXAS CODE CRIMINAL PROCEDURE ARTICLE § 38.23,
where the SECOND DISTRICT COURT OF APPEALS HAS REAFFIRMED THE PRESENT CASE AS THE
SEARCH WARRANT AND AFFIDAVIT SIGNED BY THE MUNICIPAL COURT PRO-TEM JUDGE OF FORT WORTH,
TEXAS lacked JURISDICTION TO ISSUE, and as issued of NO FORCE OR EFFECT.
ll z1
AFFIANT has established a clear LIBERTY INTEREST ISSUE wherein there exist the
established fact that the herein NAMED JUDICIAL SYSTEM too include ATTORNEY OF RECORD
JIM SHAW, have whether by calculated intent and design, or by their combined error,
incompetance, apathy and ignorance, have collectively, whether either through their
acts of commission and/or omission, have entered into "A CONSPIRACY TO CONCEAL AND
IGNORE STATE AND FEDERAL LAW PRECEDENT TO UNLAWFULLY CONVICT AND CONFINE AFFIANT,".
speci~ically, VIOLATING FOURTH AMENDMENT, TEXAS CODE CRIMINAL PROCEDURE ARTICLE(S)
§§ 4.14, MUNICIPAL COURT JURISDICTION, 38.23 STATUTORIAL EXCLUSIONARY RULE, excluding
evidence "obtained by an officer or other person in violation of ANY PROVISIONS OF THE
CONSTITUTION OR LAWS OF THE STATE OF TEXAS, OR OF THE CONSTITUTION OR LAWS OF THE UNITED
STATES OF AMERICA; and IGNORING FEDERAL PRECEDENT OF KYLLO v US, 533 U.S. 27, 121 S. Ct.
2038, 150 L. Ed. 2d 94, SERIOUS CONFLICTIONS W TEXAS COURT OF APPEALS RULINGS, to subject
this-AFFIANT to. CONSTITUTIONAL DEPRIVATIONS AND INJURIES thereby inflicting grievous
losses of the AFFIANT'S PROTECTED LIFE, LIBERTY, AND PROPERTY INTEREST BY AND THROUGH
THEIR BLATANT VIOLATIONS AND LACK OF REQUISITE PROCESS BEFORE DEPRIVING AFFIANT OF
THOSE INTERESTS.
Wherein THE JUDICIAL SYSTEM, NAMED HEREIN, TOO INCLUDE ATTORNEY OF RECORD JIM SHAW,
THROUGH COLLECTIVE ACTS, AS COMBINED IN THEIR CONSPIRACY AND AS UTILIZED IN .A JUDICIAL
PROCESS that as designed, structured, implemented, and as currently practiced in THE
JUDICIAU:SYSTEMS TOO INCLUDE ATTORNEY OF RECORD JIM SHAW'S OPPRESSIVE, ABUSIVE, AND
GROSSLY PREJUDICIAL APPLICATION TO THIS AFFIANT, WAS TOTALLY LACKING IN EVEN A FACSIMILE
OF REASONABLE SAFEGAURDS THAT ARE CONSTITUTIONALLY SUFFICIENT TO PROTECT AGAINST
UNJUSTIFIED DEPRIVATIONS OF AFFIANT'S FUNDAMENTAL RIGHTS AND RIGHT TO DUE PROCESS.
Whereby, TBE JUDICIAL SYSTEM, herein, too include ATTORNEY OF RECORD JIM SHAW'S,
COLLECTIVE ACTS / CONSPIRACY has resulted IN VIOLATIONS THAT RISE TO THE LEVEL OF A
SUBSTANTIAL DEFECT. Thereby, SUBJECTING AFFIANT TO THE DEPRIVATION OF HIS FUNDAMENTAL
DUE PROCESS RIGHTS. RESULTING IN A COMPLETE MISCARRIAGE OF JUSTICE THAT IS INCONSISTENT
WITH FAIR PROCEDURE; TO A SUBSTANTIAL DETRIMENT AND INJURY OF THE AFFIANT.
AFFIANT THEREFORE STATES, SHOULD THE COURTOF CRIMINAL APPEALS NOT GRANT RELIEF
AND A WRITTEN ORDER TO ACQUIT THE AFFIANT BASED ON THE LAW HEREIN AND THROUGH THE
ATTACHED MANDAMUS THROUGH THE RECORDS INVOLVED IN THE PRESENT CASE, THAT THEY TOO BE
ENJOINED INTO THE INVESTIGATION, HEARINGS, PROSECUTIONS AND CONVICTIONS FOR THE
"CONSPIRACY TO CONCEAL AND IGNORE STATE AND FEDERAL LAW PRECEDENT TO UNLAWFULLY CONVICT
AND CONFINE AFFIANT." THIS IS AFFIANT'S REQUEST OF TEXAS ATTORNEY GENERAL'S OFFICE.
~~>~ ~~
AFFIANT FURTHER SAYETH NOT.
GERARDO TOMAS ~AS #01766735
AFFIANT / PRO-SE
12
28
CERTIFICATE OF SERVICE
The undersigned certifies that true and correct copies of: THE PETITION FOR WRIT
OF MANDAMUS and the attached AFFIDAVIT COMPLAINING OF: CONSPIRACY TO CONCEAL AND IGNORE
STATE AND FEDERAL LAW PRECEDENT TO UNLAWFULLY CONVICT AND CONFINE AFFIANT, being
submitted to the TEXAS ATTORNEY GENERAL, has been submitted return receipt applied to:
. 1) OFFICE OF TEXAS ATTORNEY GENERAL, PROSECUTION SECTION, 209 W. 14th St., P.O. Box
12548, AUSTIN, TEXAS 78711 - 2548;
2) COURT OF CRIMINAL APPEALS, P.O. Box 12308, CAPITOL STATION, AUSTIN, TEXAS 78711;
3) Hon.Lisa Me Minn, STATE PROSECUTING ATTORNEY, P.O. Box 12405, AUSTIN, TEXAS 78711;
4) SECOND DISTRICT COURT OF.APPEALS, TIM CURRY BLDG., 401 W. BELKNAP St., Ste. 9000,
FORT WORTH, TEXAS 76102;
5) Hon. Michael Thomas, JUDGE, CRIMINAL DISTRICT COURT NO. 4, TIM CURRY CRIMINAL JUSTICE
CENTER, 401 W. BELKNAP St., FORT WORTH, TEXAS 76196;
6) Charles M. Mallin, ASST. CRIMINAL DISTRICT ATTORNEY, 401 W. BELKNAP St., FORT WORTH,
TEXAS.76196; and,
7) Jim H. ·. Shaw I 916 w. BELKNAP st. I FORT WORTH I TEXAS 76102.
SIGNED AND SUBMITTED au day of _r~LA~'~aq,.......------Hl5. · ~
/~~~~
~DO TOMAS RIVAS #01766735
UNSWORN DECLARATION
I, GERARDO TOMAS RIVAS, TDCJ-ID NO. 01766735, PRO-SE RELATOR I AFFIANT, for the
matters stated in THE PETITION FOR WRIT OF MANDAMUS and the attached AFFIDAVIT COMPLAINING
OF: CONSPIRACY TO CONCEAL AND-IGNORE STATE AND FEDERAL LAW PRECEDENT TO UNLAWFULLY
CONVICT AND CONFINE AFFIANT, being confined in the STATE OF TEXAS entitles the use
under both, FEDERAL LAW (28 USCA § 1746), and TEXAS STATE LAW (VTCA CIV PRAC AND REMS
CODE §§§ 132~001 - 132.003) bf this UNSWORN DECLARATION to declare under penalty of
perjury, and RELATOR I AFFIANT DOES SO DECLARE: IN PLACE OF A WRITTEN DECLARATION,
VERIFICATION, CERTIFICATION, OATH, OR AFFIDAVIT SWORN BEFORE A NOTARY PUBLIC, that the
facts deposed, and the facts of record claimed are true and correct as stated 1n
documentation listed above under penalty of perjury by this RELATOR I AFFIANT, thereby,
through this UNSWORN DECLARATION are to be considered VERIFIED, CERTIFIED, AND SWORN
TO BY THIS RELATOR I AFFIANT.
SIGNED AND SUBMITTED 'J...CJ day of ---=f£=--(d.::.....L..!/~fd:..t::----·-' f).5 ___..-,
-u- ~~~~·
GERARDO TOMAS RIVAS~l766735
POWLEDGE UNIT TIC N - 64
1400 FM 3452
PALESTINE, TEXAS 75803 -2350
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!RECEIVED
7-h(O~
JUL 2 7-2015
COURT .;)f APPEALS .
SECOND DiSTRICT OF TEXAS
DESP.A SPISAK, CLERK