Rehear the Case and Remand for Trial~No Court has Jurisdiction Over the Truth
This petition had 149 supporters
The case should never have been dismissed by the Federal District Court as there is concern for genuine issues of matters of law and PROTECTED Civil Liberty Abuse that is of concern. No court has jurisdiction over the truth to dismiss a case.
Petition for Rehearing Filed -Pro Se Litigants without help from counsel bravely file in federal court against abuse of due process. The petitioners issued a re-Urging of their Petition to the court to be heard-To deny them their PROTECTED Civil Liberties denies YOURS.
How is it even possible that non-attorney Judge Phil Parker (accountant) who has no authority to hear a civil case thus less DENY the right to a jury trial for an appeal concerning property ???-A PROTECTED Civil Liberty-He remains on the bench in Marion County, Texas. There has not been one single piece of evidence in this case that demonstrates any reason to grant summary judgment for the Appellees in this case as revealed in the actual document below.
The court neglected it’s OBLIGATION to nullify the void judgment of Judge Phil Parkers County Court decision as he had no authority to hear the case due to TX Government Code 26.258. The entire seizure was a sham and heard in Kangaroo Courts starting with Judge Lex Jones hearing a case concerning a class A misdemeanor, the justice courts in Texas can not hear cases beyond class c misdemeanor for criminal judgments…criminal , warrant, criminal case number, with a criminal judgment-Yet never charged with a criminal offense or received even a civil citation…KANGAROO COURT. When a court lacks authority to hear a case, it’s judgment is VOID!!!
The Petition issued to the court and Re-Urged:
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
BARBARA HOFFMANN and FRED LULLING,
Plaintiffs – Appellants
MARION COUNTY; TEXAS, HUMANE SOCIETY OF MARION COUNTY; JEFFERSON ANIMAL CLINIC; JUDGE PHIL PARKER; MAGISTRATE LEX JONES; MAGISTRATE VELMA ALLEN; DISTRICT ATTORNEY WILLIAM GLEASON; INVESTIGATOR LARRY NANCE; SHERIFF WILLIAM MCCAY; INVESTIGATOR SHAWN COX; DEPUTY DAVID MCKNIGHT; GAME WARDEN RICK LANE; EDDIE HAYES, Animal Health Commission; CAROLINE WEDDING, Humane Society of Marion County; CAROL HEDGES, Doctor of Veterinary Medicine; UNITED STATES OF AMERICA,
Appeal from the United States District Court
for the Eastern District of Texas, Marshall Division
USDC No. 2:12-CV-14
PETITION FOR REHEARING
Appellants Barbara Hoffmann and Fred Lulling file this Petition for both Panel Rehearing and Rehearing en banc, within the 45-day limit of FRAP 40.
This Petition is filed because:
The panel decision conflicts with decisions of the U.S. Supreme Court and prior decisions of the Fifth Circuit Court of Appeals, and consideration by the full court is necessary to ensure the uniformity of the court’s decision; and
The proceeding involves at least one “question of exceptional importance,” which must be succinctly stated. -FRAP 35(b),(c), 40(a)(1)
POINTS OF FACT AND/OR LAW OVERLOOKED OR MISAPPLIED
Proceeding does not concern the keeping of “derelict” animals or animal cruelty charges;
Government Code 26.258 and the district court’s failure to entertain the nullification of a void judgment, which constitutes abuse of discretion;
Constitutionality of Texas Health and Safety Code Section 821, subchapter B;
Breach of Contract by Marion County;
Extrajudicial activities of Marion County District Attorney Gleason and claims of prosecutorial immunity;
Dismissal of judges amid claims of absolute judicial immunity;
Sham certification of USDA agents and substitution of U.S. as defendant;
ADA violations above and beyond the first day of searches;
Search and seize prior to any application for search warrant;
Issuance by JP magistrate of a “general” search warrant;
Definition of “curtilage” for Fourth Amendment purposes of trespass;
Definition of Texas private property rights;
Impersonation of an officer by defendant Caroline Wedding;
Destruction and conversion of property seized as evidence, without court order;
Fruit of the Poisoned Tree evidence not excluded from JP and County Courts;
Denial of jury trial;
Appeal bond demanded of indigent litigants;
Justice Court hearing of class A misdemeanor charges;
Civil case heard with no citation, on a criminal case docket number;
Justice Court went beyond its 10-day jurisdiction per Health & Safety Code 821.022.
CONFLICTS WITH SUPREME COURT RULINGS
“Implied license to enter property to visit and converse with owner just as a private citizen might”;
Court “finds no issue” with a general and non-specific search warrant;
POINTS OF FACT AND/OR LAW OVERLOOKED OR MISAPPLIED
Proceeding does not concern the keeping of “derelict” animals or animal cruelty charges: As stated in Appellants Brief, p.15, “At issue…is not what was found on Appellants’ property, or even whether Appellants were truly guilty of any crime or wrongdoing. The issues of this case are the actions of the Appellees, how they went about their purported “investigation,” their abuse of Appellants’ civil liberties, rights to privacy, and due process, and their abuse of the courts, all under “color of law” for their own ends.” This District Court case is NOT an attempt to overturn the judgments of the lower state courts, or to seek exoneration of some sort, as portrayed by the defendants. The issues presented to the Appeals Court are enumerated in Appellants’ Brief and speak not of any issues argued in the state courts.
Government Code 26.258 and the district court’s failure to entertain the nullification of a void judgment, which constitutes abuse of discretion: This was presented to the appeals court as “Issue Eleven” in Appellants’ Brief, and is NOT a case inviting the district court to review and overturn a legitimate state court’s judgment. Appellants do not complain of any injury caused by a state court judgment, nor do Appellants ask that any “new exception to the doctrine” be adopted. The Rooker-Feldman doctrine simply cannot apply here. Rooker Feldman was never intended to protect void judgments. By mandate of Texas Government Code 26.258, the county court of Marion County HAS NO JURISDICTION to hear civil cases, other than “the general jurisdiction of a probate court, general criminal jurisdiction, and juvenile jurisdiction.” This makes any civil judgment of the county court of Marion County void ab initio. Where Rule 60(b)(4) is properly invoked on the basis that the underlying judgment is void, “‘relief is not a discretionary matter; it is mandatory.'” Orner v. Shalala, 30 F.3d 1307, 1310 (10th Cir. 1994) (quoting V.T.A., Inc. v. Airco, Inc., 597 F.2d 220, 224 n.8 (10th Cir. 1979)).
Constitutionality of Texas Health and Safety Code Section 821, subchapter B:
“There is no discretion to ignore lack of jurisdiction.” Joyce v. U.S. 474 2D 215.
A court may not render a judgment which transcends the limits of its authority, and a judgment is void if it is beyond the powers granted to the court by the law of its organization. The lack of statutory authority to make particular order or a judgment is akin to lack of subject matter jurisdiction and is subject to collateral attack. 46 Am. Jur. 2d, Judgments § 25, pp. 388-89.
This was presented in Appellants’ Brief as Issue Fourteen, and the constitutionality of the Health & Safety code was challenged and argued in Plaintiffs’ Original and Amended Complaints to District Court. Defects in the scheme of the statute were presented and should be argued before a jury.
Breach of Contract by Marion County: Agreement/contract was signed by both Plaintiffs/Appellants and Defendant/Appellee District Attorney Gleason on behalf of Marion County. Promise to drop “all criminal charges” was immediately breached by the issuance of Personal Appearance Bonds, commanding appearance the next day to answer misdemeanor class A charges. It was further breached by the failure of Marion County to ensure the return of nine big cat transport cages as promised. The closing line of the agreement is moot because at the time of signing, there was no hearing scheduled on the disposition of the “other animals” -only the big cats, which were the basis of the criminal charges. No other animal cruelty charges were filed, either criminal or civil, and no complaint or citation is to be found in the justice court files or docket.
Extrajudicial activities of Marion County District Attorney Gleason and claims of prosecutorial immunity: DA Gleason partook in the initial “investigations” and unwarranted search of the Hoffmann Lulling property prior to the issuance of any search warrant and advised officers on the scene. He then also took part in the warranted search, and the sheriff’s book-in report of Deputy Cox states that deputies were “assisting the DA’s office” in serving the warrant. After the animal seizures, Gleason took it upon himself to personally care for the big cats where they were being kept at a local community center -with no prior training or experience in large exotic animal handling and care, as required by the search warrant. These activities were all extrajudicial and not a part of the advocacy job of a district or county attorney, and thus not protected by “absolute” prosecutorial immunity. Yet, the District Court ignored these common facts.
Dismissal of judges amid claims of absolute judicial immunity: Judges Parker and Jones cannot legally be dismissed on judicial immunity until the matter of void judgment has been heard and acted upon. Judge Allen, taking her court business outside the courtroom and in street clothes (and unrecognized as a judge by both Hoffmann and Lulling) was out of jurisdiction and the papers she signed and caused to be signed should also be declared void. Arguments to this effect were totally ignored by the District Court.
Sham certification of USDA agents and substitution of U.S. as defendant: Two USDA agents were named as defendants, in both their professional and personal capacities. One had purportedly revealed confidential information, speculation and rumors, by phone, regarding Plaintiff Hoffmann -in violation of USDA confidentiality regulations. The other made a trip from New Orleans to the Hoffmann-Lulling property for the sole purpose of an “off-the-record” inspection and consultation. Their counsel, an assistant US attorney, automatically and without conferring with them in any way, certified that they were “on the job” -although no records exist to back this claim. USDA has produced not a shred of evidence or any records showing that either action was a part of these agents’ job duties or that these actions even took place. Yet the assistant US attorney blindly certified that they were “on the job” and was successful in convincing the trial court to substitute the United States -which enjoys tort immunity- for the defendants, without as much as a hearing. The United States should never have been substituted for defendants sued in their individual capacity and these two defendants should be reinstated as parties, pending a hearing on the objected certification.
ADA violations above and beyond the first day of searches: There was never any question that Mr. Lulling has been deaf most of his life, and relies on lip-reading and sign language. Lip-reading is an imprecise art, and it has been shown that not more than 25% of words in a sentence can be clearly lip-read, even by a skilled lip-reader in broad daylight. The rest must be filled in using logic and guesswork. At the initial hearing, Mr. Lulling informed Judge Lex Jones that by law, the hearing could not proceed without an interpreter present. Prosecutor Gleason insisted on pushing ahead, regardless. The second hearing did not repeat anything from the first, and picked up where the first had left off, effectively leaving Mr. Lulling in limbo as to what had previously transpired “under his nose.” This behavior would never be tolerated with a foreign-speaking immigrant, but is ignored when the person is deaf, despite 42 U.S.C. 12132 and other state and federal laws. All of this is clearly stated in the Original and amended Complaints, the Appellants’ Brief, affidavits, and other papers filed with the court, but not considered in reaching the conclusion that no ADA discrimination ever took place.
Search and seize prior to any application for search warrant: The appellate court here misunderstands Plaintiffs’ claims of “search and seize.” These claims are not limited to the warranted search and seize of the animals, but to the unwarranted searches and seizures of Plaintiffs’ property on all three days prior to the warrant application, issuance, and service. Summary Judgment is NOT a ruling on who is right and who is wrong, but on whether there is evidence that could present a genuine issue of fact in trial. The district court abused its discretion in passing judgment as to opinion that officials’ trespasses -despite breaching a locked gate and being asked to leave numerous times- were proper and that no trespass occurred. Defendants did NOT present evidence showing no genuine material issue of fact, and thus, Summary Judgment should NOT have been granted without as much as a hearing. The second day of warrantless searches cannot be said to have been simply an “approach to ask questions.” Defendants and others let themselves in and searched the property at will, opening trailers and containers, approaching too near the big cats despite warnings, and exhuming a dead and buried lion -all without permission from the owners or any court of law, and certainly no “exigent circumstances.” Negative remarks attributed to a USDA agent, uncorroborated and not in any official USDA files, were hearsay and untrue. A USDA-approved arena cage used for years by the Hoffmanns performing shows, and the same as used by many circuses, was now deemed “unsafe” by Deputy McKnight -who had absolutely no experience in such matters.
Issuance by JP magistrate of a “general” search warrant: There is no dispute that Plaintiffs/Appellants were in possession of “over 100” animals -including livestock and poultry. It was claimed that only some of the dogs, cats, and exotic animals were purportedly abused, and testified to in court by key defendants that “all” were healthy. The search warrant was written on Penal Code 42.092, which specifies “non-livestock animals.” (Warrant Affidavit, par. 3) Yet the text of the warrant orders the seizure of “all animals, alive, dead or unborn.” This is vague, general, overly broad, and could also apply to the dead and buried lion as well as any wild birds or other animals on the property. It was pointed out in court that not all animals were actually rounded up and taken; the lion was left and a house cat was left to die in the locked house, after officials shut off all heat and electric.
Definition of “curtilage” for Fourth Amendment purposes of trespass: The courts relied on U.S. v. Dunn, 480 U.S.294 (1987) for an interpretation of “curtilage,” but Dunn only distinguishes between open fields and curtilage. It does not actually define curtilage in any certain terms. Appellants’ property -the area searched- could not, by any stretch of the imagination, be considered “open fields.” Of the 10- acre property, approximately ONE acre constituted the front area, surrounded by barbed wire fence, posted, and gated. Mr. Lulling’s private workshop and several personal storage trailers were all within the curtilage of the home, inaccessible to and not viewable by the public. Officers Lane and McKnight, both armed and with a k-9 dog in tow, entered the gate and spoke with Mrs. Hoffman, demanding to be shown the big cats -which were housed entirely behind the residence. They did NOT “approach the residence and knock.” As most courts recognize, distance is just one of many factors to be weighed when determining the reach of the curtilage. For example, in Care v. United States, 231 F.2d 22, 25 (10th Cir. 1956), the court said, “Whether the place searched is within the curtilage is to be determined from the facts, including its proximity or annexation to the dwelling, its inclusion within the general enclosure surrounding the dwelling, and its use and enjoyment as an adjunct to the domestic economy of the family”. Indeed, in concluding that particular areas were not within the curtilage, the opinions cited by the Bensinger court stressed other factors arguably as important to their rulings as distance. United States v. Van Dyke, 643 F. 2d 992 – Court of Appeals, 4th Circuit 1981. Every case must be decided upon its own peculiar facts, and we hold that, under the facts here, this barn was a part of the curtilage. In Roberson v. United States, 6 Cir., 1948, 165 F.2d 752, the search was of a smokehouse; and in Walker v. United States, 5 Cir., 1942, 125 F.2d 395, 396, the search was of a shed consisting of a chicken house and garage, which stood fifty to sixty feet from the dwelling house; in each instance it was considered that the curtilage was involved.
Definition of Texas private property rights: Beyond any federal definitions of curtilage, the state of Texas provides for nearly absolute private-property rights. Indeed, trespassers to private property after dark may be shot on sight by the landowner (TX Penal Code 30.05; Ch.9,Sec. 9.41, 42). Had Plaintiffs Hoffmann and Lulling not happened to be near the gate when Warden Lane approached in darkness, but inside their home, the results could have been catastrophic. Lane did activate the emergency flasher on his truck, but this was simply a red light, and at a distance not recognizable as a law enforcement vehicle.
Impersonation of an officer by defendant Caroline Wedding; As noted in Plaintiffs’ pleadings, Caroline Wedding, president of the local humane society, was presented as “Animal Control Officer,” and also introduced herself as such to Hoffmann and Lulling. In reality, Humane Society of Marion County was “of Marion County” in name only, a 501(c)(3) volunteer charity, and not in any way connected to the Marion County Sheriff’s Department -which by law is Animal Control for the county of Marion. To this day, Ms. Wedding presents herself as an Animal Control officer, as a means to gain “color of law” access to and interference with private properties. The courts failed to address this illegality in its entirety.
Destruction and conversion of property seized as evidence, without court order: This was addressed as Issues Fifteen B. and C. of Appellants’ Brief and not addressed by the courts. Defendant/Appellee Carol Hedges, by her own admission in the lower courts, destroyed cages she felt her people could not get clean enough for her liking. She destroyed nearly half the animals seized, with no charges ever filed, and before the first court hearing, without any court order or authorization, later claiming “permission” from the District Attorney and the Animal Health Commission agent. Fowl were destroyed despite a Texas Animal Health Commission hold order.
Fruit of the Poisoned Tree evidence not excluded from JP and County Courts: Motions were filed in the county court by Appellants, including to strike evidence from unwarranted searches and from warranted search, based on Fruit of the Poisoned Tree doctrine. All motions filed by Appellants were totally ignored by Judge Parker, who declared during trial that he was only interested in what the Appellants “had done” and would not hear any arguments regarding the actions of the officials and others.
Justice Court went beyond its 10-day jurisdiction per Health & Safety Code 821.022. This alone should be cause for a mistrial or a void judgment on the part of the Justice Court, and is detailed within Appellants’ Brief, the Original Complaint, and several of Appellants’ pleadings. Defendants claim the justice court hearing was postponed in order to procure an interpreter for Mr. Lulling. If this were true, then the county forced the court to go beyond its jurisdiction for the sake of an interpreter, but then refused to make any allowances in time for a jury in county court. However, the docket shows that the justice court hearing was postponed because the parties could not reach agreement as to the disposition of the animals. In a legitimate court hearing, this would not be up to the witnesses to decide. The subject of an interpreter was an afterthought by the District Attorney, as he exclaimed (and paraphrased by the media), “This will also give me time to find an interpreter (for Lulling).”
Denial of jury trial: This inalienable Constitutional right was not addressed by any of the courts. The county court hearing was set within a 10-day period, purportedly according to Health & Safety Code Sec. 821.025. Appellants immediately requested jury trial, and District Attorney Gleason then filed motion to strike jury demand, citing R. Civ.P. 216 and the court clerk’s busy schedule and need for two weeks to empanel a jury. However, R.Civ.P. 544 allows for a jury on one day’s notice in Justice Court, and in the case of a 10-day trial, a reasonable person would assume this rule could and should apply. This is a small town courthouse and the same office empanels juries for both justice and county courts.
Appeal bond demanded of indigent litigants: Hoffmann and Lulling both filed applications for indigence at the county jail and these were accepted by magistrate Velma Allen. Yet, the court demanded cash bond of $2,750 upon filing Notice of Appeal. DA Gleason then argued that this bond should not be refundable, and his motion was instantly upheld by Judge Parker. When this was argued in Plaintiffs/ Appellants’ District Court Complaint, not one of the defendants objected to the refund of the appeal bond money in their pleadings. Yet the District Court ignored it and Appeals Court missed it. This appeal bond should be refunded to Plaintiffs/Appellants as undisputed.
Justice Court hearing of class A misdemeanor charges: Upon signing the contract/agreement with Marion County, Hoffmann and Lulling were then discharged from the County Jail, but not before being required to sign ten appearance bonds each, bearing the notice to appear the next day on charges of “misdemeanor A animal cruelty.” The only court in session that day was the Justice Court, and the two court-appointed defense attorneys were there to argue for Hoffmann and Lulling. This hearing was held on the Justice Court’s criminal docket, case number CR-10-0112. All indications were that this was to be a misdemeanor class A hearing, on the charges of cruelty to the ten exotic big cats (The only actual charge was lack of registration, not cruelty). TX Gov. Code Sec. 27.031 sets a limit on justice court of $10,000, exclusive of interest. Animals and other property seized far exceeded $100,000 in value.
Civil case heard with no citation, on a criminal case docket number: Not only was there no citation for a civil case, but there was no criminal complaint other than the twenty counts (in Hoffmann’s name only, not Lulling’s) for non-registration of the big cats (failure to register is procedural, hardly class A, and was agreed to be dropped as part of the agreement signed). This was detailed in Appellants’ Brief and also missed by the appeals court.
Trespass to chattels, also known as trespass to goods or trespass to personal property, is defined as “an intentional interference with the possession of personal property…proximately caus[ing] injury”. While originally a remedy for the asportation of personal property, the tort grew to incorporate any interference with the personal property of another. Thrifty-Tel, Inc., v. Bezenek, 46 Cal. App. 4th 1559, 1566–7 Furthermore, personal property, as traditionally construed, includes living objects, except where property interests are restricted by law. Thus animals are personal property. Slater v Swann  2 Stra 872
Yet in this case, the courts have arbitrarily decided, without elaboration, that there was no curtilage beyond the threshold of the residence.
Walker v. United States, 225 F. 2d 447 – Court of Appeals, 5th Circuit 1955:
Oliver v. United States, 466 US 170 – Supreme Court 1984: “At common law, the curtilage is the area to which extends the intimate activity associated with the “sanctity of a man’s home and the privacies of life,” Boyd v. United States, 116 U. S. 616, 630 (1886), and therefore has been considered part of the home itself for Fourth Amendment purposes. Thus, courts have extended Fourth Amendment protection to the curtilage. See, e. g., United States v. Van Dyke, 643 F. 2d 992, 993-994 (CA4 1981); United States v. Williams, 581 F. 2d 451, 453 (CA5 1978); Care v. United States, 231 F. 2d 22, 25 (CA10), cert. denied, 351 U. S. 932 (1956).” The Bensinger opinion concluded that these cases “enunciate a clear rule: any outbuilding or area within 75 feet is within the curtilage…” United States v. Bensinger, 546 F.2d at 1297 (7th Cir. 1976).
Far more than animals and records were taken, and only a small percentage returned by the sheriff’s office several weeks later. The warrant did not authorize the taking of cages, leashes, food, tarps, tools, and other items too numerous to mention here.
No reasonable officer could claim to be unaware of the basic rule, well established by our cases, that, absent consent or exigency, a warrantless search is presumptively unconstitutional. See Payton, 445 U. S., at 586-588
Plaintiff/Appellant Lulling’s claims of denial of equal access are not limited to the first night of searches by the Defendants. They extend through the arrest, booking, arraignment, the entire week in jail, and the first hearing in Justice Court -in which Mr. Lulling was technically tried in absentia. Defendants who had limited interaction with him that first night are not trained or experienced in dealing with a deaf individual, and cannot interpret smiles and head nods by Mr. Lulling as proof that he understood everything said around him on a dark and moonless night. In the appeal court’s Judgment (doc. 00512839430), footnote on p. 2 states: “Lulling…seemingly understood what was being said.” This is comparable to assuming a blind man’s smiles indicate he could see a photo held before him. Evidence of just how well Mr. Lulling actually understood can be seen in the fact that Deputy McKnight resorted to assaulting Mr. Lulling with a violent and painful flashlight-poke in the ribs when he failed to respond to being addressed from behind (Lulling sworn affidavit). After that first night’s encounter, Mrs. Hoffmann phoned the sheriff’s office to request an interpreter accompany any further visits. This request is recorded in the dispatcher’s log, and was ignored. Mr. Lulling’s deafness is also noted in the warrant affidavit. At the county jail, Mr. Lulling asked for and was denied “TDD” phone equipment for making his allowed phone call. Thus he was denied this important right. The equipment was procured later in the week, but jail personnel had no idea how to connect it and refused to allow Lulling to make the connection. Magistrate Velma Allen, in raincoat, presented Mr. Lulling with papers to read and sign at the jail, not bothering with an interpreter, not verifying that he understood everything, and not taking any plea. Lulling had no idea she was a judge until the papers were signed.
CONFLICTS WITH SUPREME COURT RULINGS
A) “Implied license to enter property to visit and converse with owner just as a private citizen might”: Entry onto the property to converse with the owner is one thing. In this case, conversing and simply verifying the claimed existence of big cats was not enough; The armed officers demanded to be taken on a “tour,” threatening arrest for anything less than total compliance. They then searched the property at will, and called in others who also searched at will, ignoring all objections, for four hours that Sunday night, and again for approximately seven hours the next day and sporadically the third day -all prior to finally obtaining a search warrant on the fourth day. Three days of random searching belie any claims of exigency or emergency circumstances. These searches were based on purported claims of the mere existence of big cats and not on any claims of cruelty or animals purportedly seen to be suffering.
We have previously held that “[s]ilence or passivity cannot form the basis for consent to enter.” Roe, 299 F.3d at 402. Further, “[i]t is well established that a defendant’s mere acquiescence to a show of lawful authority is insufficient to establish voluntary consent.” United States v. Jaras, 86 F.3d 383, 390 (5th Cir. 1996). [T]he mere possibility of danger is not enough.” Tenenbaum, 193 F.3d at 594 (internal citation and quotation marks omitted).
No warrant can be considered retroactive, and a warrant obtained on the fourth day cannot automatically justify the previous three days of warrantless and unconsented searches and seizures of the appellants and their real property.
B) Court “finds no issue” with a general and non-specific search warrant:
While the warrant affidavit may have described SOME of the animals, the warrant itself broadly and unspecifically ordered the seizure of “all animals, alive, dead and unborn.” It neither ordered nor granted permission to seize any other property -valued at over $100,000- or to force Appellants to allow entry of media and other parties under threats of arrest.
“[T]he requirement plainly appearing on the face of the Fourth Amendment that a warrant specify with particularity the place to be searched and the things to be seized is imposed to the end that “unauthorized invasions of `the sanctity of a man’s home and the privacies of life’ ” be prevented.” Berger v. New York, 388 U. S. 41, 58 (1967). `As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.’ ” Stanford v. Texas,379 U. S. 476, 485 (1965) (quoting Marron v. United States, 275 U. S. 192, 196 (1927)).
Because “the warrant did not describe the items to be seized at all,” the Court concluded the search was “warrantless.” Groh v. Ramirez, 540 US 551 – Supreme Court 2004
The fact that the application adequately described the “things to be seized” does not save the warrant from its facial invalidity. The Fourth Amendment by its terms requires particularity in the warrant, not in the supporting documents. See Massachusetts v. Sheppard, 468 U. S. 981, 988, n. 5 (1984) “The uniformly applied rule is that a search conducted pursuant to a warrant that fails to conform to the particularity requirement of the Fourth Amendment is unconstitutional. Stanford v. Texas, 379 U. S. 476 (1965); United States v. Cardwell, 680 F. 2d 75, 77-78 (CA9 1982); United States v. Crozier, 674 F. 2d 1293, 1299 (CA9 1982); United States v. Klein, 565 F. 2d 183, 185 (CA1 1977); United States v. Gardner, 537 F. 2d 861, 862 (CA6 1976); United States v. Marti, 421 F. 2d 1263, 1268-1269 560*560 (CA2 1970).
For the foregoing reasons, Hoffmann and Lulling, Appellants pro se, respectfully petition this court for both Panel Rehearing and Rehearing en banc.
Respectfully submitted this ___ day of December, 2014,
Appellants pro se
Both the Federal District Court and the Fifth Circuit Court of Appeals missed it by a ling shot and we respectfully request that Federal Judges Reavley, Smith, and Southwick cancel the mandate issued and unsigned and rehear this case.
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