EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER AND STAY OF STATE COURT PROCEEDINGS PURSUANT TO THE ALL WRITS ACT AND THE ANTI-INJUNCTION ACT

 NOT GUILTY!  

ON FEBRUARY 4, 2019, DR. BASILIS N. STEPHANATOS, PHD, PE, JD WAS FOUND NOT GUILTY BY A JURY OF HIS PEERS IN BERGEN COUNTY, NEW JERSEY

RE:     STATE V. BASILIS STEPHANATOS

            DOCKET NUMBER 17-1723

            INDICTMENT NUMBER 11-09-810-2

            JURY FOUND DR. STEPHANATOS NOT-GUILTY OF FOUR VERY SERIOUS CHARGES

   This was a not-guilty verdict on all four (4) very serious charges on the indictment obtained in September 2011. 

Importantly, the sheriff officers testified under oath that they failed to “knock and announce” prior to performing a search of Stephanatos' home.

The numerous contradicting statements of the sheriff officers provided further proof that they fabricated their charges against Dr. Stephanatos.  The events occurred during an eviction where they used a void ab initio writ of possession obtained by the antitrust conspirators Robert Del Vecchio, Jr., Esq., American Tax Funding, LLC, Matthew Marini, Keith Bonchi, et al on June 28, 2011.

THE PASSAIC COUNTY PROSECUTOR PROVIDED “SMOKING GUN” EVIDENCE AGAINST ROBERT DEL VECCHIO

On January 23, 2019, as part of the pre-trial discovery, the Passaic County prosecutor, Mr. Stephen Bollenbach, provided Dr. Stephanatos with several handwritten pages prepared by Defendant Robert Del Vecchio, Jr., Esq. in May 2011.  The newly discovered pages show that Defendant Del Vecchio faxed letters to the Passaic County Sheriff stating that Stephanatos was a “dangerous Deft” and that Stephanatos had threatened him on May 24, 2011.  All these written statements by Defendant Del Vecchio were fabricated by him to prejudice the Passaic County Sheriff against Stephanatos and to force Stephanatos out of his home using the void ab initio ex-parte writ of possession.

A MALICIOUS PROSECUTION CLAIM WILL BE SUBMITTED TO THIS COURT

Dr. Stephanatos will be filing a claim of malicious prosecution claim.  This claim is timely, as the criminal proceedings ended in Dr. Stephanatos' favor on February 4, 2019.  The malicious prosecution claim is a tort action brought in civil court to recover money damages for the harm suffered from the malicious claim.  Dr. Stephanatos will seek to recover money from the Defendants for the various costs associated with having to defend against the baseless and vexatious charges.  The damages will include the cost of making a $300,000 cash bond, attorney fees, and economic harm from being wrongfully incarcerated and not being able to find employment or pursue his law license as a result of the pending charges for the last 8 years.  Dr. Stephanatos will also seek to recover money for the emotional distress associated with being jailed and wrongfully prosecuted for the last 8 years and for the malicious statements made by Defendant Robert Del Vecchio to the sheriff, damaging his good standing and reputation in the community for the last 8 years.

 
==========================================

____________________________________________________________

January 8, 2019

THE HONORABLE JOHN MICHAEL VAZQUEZ

United States District Judge

Lautenberg U.S. Post Office & Courthouse

2 Federal Square, Room 417

Newark, New Jersey 07102

RE:     EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER AND STAY OF STATE COURT PROCEEDINGS PURSUANT TO THE ALL WRITS ACT AND THE ANTI-INJUNCTION ACT

Civil Action No. 02:12-cv-01793 (JMV-JBC)

Dear Judge Vazquez:

Plaintiff, Basilis N. Stephanatos, PhD, JD, (“Plaintiff”, “Dr. Stephanatos”, “Stephanatos”, “Petitioner”) appearing pro se, respectfully files this letter memorandum of law in support of his emergency motion to stay the state court criminal proceedings.  Because there is a criminal trial date set for January 22, 2019, Stephanatos is asking for the issuance of a Temporary Restraining Order (TRO) pending a hearing for a preliminary injunction because irreparable injury is “both great and immediate” due to the “bad faith” of the Passaic County Prosecutor, the repeated failure to perform evidentiary hearing pursuant to Franks v Delaware, 438 US 154 (1978), and State v. Atwood, 232 NJ 433 (2018), to address violations of the Fourth and Fourteenth Amendment to the Federal Constitution, the refusal to concede that the Writ of Possession issued by the Clerk on May 13, 2011 was void ab initio, the hiding of clearly exculpatory evidence for several years, and so on. 

Stephanatos alleges and establishes herein the existence of special circumstances, the existence of bad faith and provides evidence that the state trial would not provide an adequate setting for the vindication of his federal rights.

The motion is made pursuant to the All Writs Act, 28 U.S.C. § 1651(a), the Anti-Injunction Act, 28 U.S.C. §2283 and the local civil Rule 65.1, Applications for Emergency Relief.  The injunction falls within all of the following exceptions: (1) express authorization by Act of Congress (42 U.S.C. §1983); (2) where necessary in aid of a court’s jurisdiction; and (3) to protect or effectuate its judgments. 28 U.S.C. §2283. 

Pursuant to the authority of State in the interest of T.L.O., 94 N. J. 331, 463 a. 2d 934 (1983), State v. Atwood, 232 NJ 433 (2018), Collins v. Virginia, 584 U.S. _ (2018), Florida v. Jardines, 569 U.S. 1, (2013), Stephanatos sought the exclusion of evidence obtained in violation of his Fourth, Fifth and Fourteenth Amendment rights not to be subjected to unreasonable searches and seizures.  Stephanatos has also discovered that the sheriff entered his property at 8:50 am, before the scheduled 9:00 am unlawful and unconstitutional eviction.   Since the writ was void ab initio and the sheriff should not have entered the property before 9:00 am, and because the sheriff officers started peering through the windows of the Stephanatos’ residence, all evidence obtained prior to the 9:00 am event as a result of the unlawful search and seizure should be excluded pursuant to State v. Atwood, 232 N.J. 433 (2018) and the federal case law cited above and in this memorandum of law.

Here, there was a direct and un-attenuated “but-for” causal connection between the constitutional violation (the illegal search and the illegal seizure and the failure to knock and announce and the premature entering into Stephanatos’ property) and the acquisition of evidence in this case.  Here, the constitutional violation of failing to knock and announce and the subsequent illegal peering through Stephanatos’ window was the reason the evidence was recovered.  The evidence was also obtained pursuant to a void writ of possession.  Therefore, here we have both an unconstitutional search (the peering through the side door window, after the failure to knock and announce) and an illegal justification for the search and seizure (which was constitutionally invalid because it was an illegal eviction based on a void writ).

I am also alleging that the Passaic County prosecutor(s) have been fraudulently concealing the recently released Wayne Dispatch audiotapes from the Passaic County Sheriff for more than 7.5 years to Stephanatos’ detriment, because these audio tapes prove that Stephanatos never pointed a gun at the two officers and that they formed a conspiracy to frame him.  This concealment, in combination with the refusal to perform the required evidentiary hearings, further shows bad faith, prejudice, harassment and cover-up in the state court proceedings.  The state courts cannot be trusted to fairly adjudicate Stephanatos’ federal civil rights violations.  Hence, this emergency motion to enjoin the state proceedings until this Court rules on the 42 U.S.C. Section 1983 lawsuit.

In United States v. Wood, 295 F.2d 772, 784 (5^th Cir. 1961), cert. denied, 369 U.S. 850 (1962), the court of appeals in reversing the denial of a TRO by the district court, it said that “the temporary postponement of trial of a misdemeanor case before a justice of the peace causes either no injury or very slight injury. The public interest demanded the granting of temporary relief by the district court.”  Here, the criminal proceedings have been going on for almost 8 years in violation of Stephanatos speedy trial rights and the only reason that the Passaic County Prosecutor continues with the trial is because the state court has refused repeatedly to perform the mandatory evidentiary hearings pursuant to both Federal and State law and to uphold Stephanatos’ federal civil rights.  A few month postponement of those proceedings will cause no injury to Passaic County until this Court adjudicates the federal civil rights lawsuit.

My legal research of the case law has not revealed any precedent which clearly prohibits the entry of an All Writs Act injunction in a situation where a few months delay is “necessary or appropriate in aid of” federal court jurisdiction. 28 U.S.C. §1651. In contrast, refusing to grant the equitable relief would frustrate the future judgment of this Court and the Court would fail to protect or effectuate its judgments.

Respectfully Submitted,

___________________________________

Basilis N. Stephanatos, PhD, PE, JD

PETITIONER/PLAINTIFF, Pro Se

CERTIFICATION OF BASILIS N. STEPHANATOS

I hereby certify under penalty of perjury that the foregoing facts and statements made by me are true and correct to my own knowledge, except as to those matters set forth therein upon information and belief, and as to those matters, I believe them to be true.  I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment. NJ Court Rule R. 1:4-4(b); 28 U.S.C. §1746.

DATE:  January 8, 2019

Respectfully Submitted,

___________________________________

Basilis N. Stephanatos, PhD, PE, JD

Pro Se

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

BASILIS N. STEPHANATOS, Plaintiff, v. WAYNE TOWNSHIP, et al., Camelia Valdes, Stephen Bollenbach, Passaic County Prosecutors Defendants, in their official capacities

Civil Action No.: 02:12-cv-01793 (JMV-JBC) ORDER TO SHOW CAUSE FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION TO STAY THE STATE COURT PROCEEDINGS

PLEASE TAKE NOTICE that as soon as Plaintiff may be heard, the undersigned will move the Court at the Martin Luther King Building & U.S. Courthouse, 50 Walnut Street, Newark, New Jersey, seeking a Temporary Restraining Order (“TRO”) and Stay of State Court Proceedings in the form attached hereto and asking that this matter be set down for a hearing to convert those temporary restraints into a Preliminary Injunction pursuant to Fed. R. Civ. P. 65 and LCR 65.1.

1. For the reasons set forth in the accompanying Memorandum of Law, Petitioner/Plaintiff seek a TRO to maintain the status quo and bar Respondents/Defendants from trying Petitioner/Plaintiff in the Bergen County Court before this Court has had an opportunity to consider and rule on the merits of Petitioner/Plaintiff’s contemporaneously filed motion pursuant to All Writs Act, 28 U.S.C. § 1651(a), the Anti-injunction Act, 28 U.S.C. §2283 for Injunctive Relief.

2. Stephanatos is asking for the issuance of a Temporary Restraining Order (TRO) pending a hearing for a preliminary injunction because irreparable injury is “both great and immediate” due to the “bad faith” of the Passaic County Prosecutor, the repeated failure to perform evidentiary hearing to address violations of the Fourth and Fourteenth Amendment to the Federal Constitution, the refusal to concede that the Writ of Possession issued by the Clerk on May 13, 2011 was void ab initio, the hiding of clearly exculpatory evidence for several years, and so on.  Stephanatos alleges and establishes herein the existence of special circumstances, the existence of bad faith and provides evidence that the state trial would not provide an adequate setting for the vindication of his federal rights.

4. Petitioner/Plaintiff has conferred with the state courts and the Passaic County Prosecutor, who do not agree to the relief sought in the form of an evidentiary hearing to establish the constitutionality of the search and seizure performed on June 28, 2011 using a void ab initio writ by the Passaic County Sheriff that provided the exclusive method of obtaining the alleged evidence of assault against the Petitioner.

WHEREFORE, Petitioner/Plaintiff respectfully request that this Court:

A. Grant this Emergency Motion for Temporary Restraining Order and Stay of State Court Proceedings;

B. Enter the Proposed Order Granting Petitioner’s/Plaintiff’s Emergency Motion for Temporary Restraining Order and Stay of State Court Proceedings; and

C. Grant such other and further relief as justice may require.

DATE:  January 8, 2019

Respectfully Submitted,

PETITIONER/PLAINTIFF

___________________________________

Basilis N. Stephanatos, PhD, PE, JD

Pro Se

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

BASILIS N. STEPHANATOS, Plaintiff, v. WAYNE TOWNSHIP, et al., Camelia Valdes, Stephen Bollenbach, Passaic County Prosecutors Defendants, in their official capacities

Civil Action No.: 02:12-cv-01793 (JMV-JBC) [PROPOSED] ORDER TO SHOW CAUSE FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION TO STAY THE STATE COURT PROCEEDINGS

THIS MATTER having been brought before the Court by Plaintiff, Pro Se, by Order to Show Cause seeking a temporary restraining order and preliminary injunction pursuant to Federal Rule of Civil Procedure 65 and L.Cv. R. 65.1, and upon the Complaint, Declarations and Memorandum of Law submitted herewith the Court having determined that good and sufficient reasons exist to proceed by way of Order to Show Cause, and for good cause shown.

IT IS on this _____ day of _________________ , 2019,

ORDERED that the Defendants appear and show cause on the _____ day of _______________, 2018, before the United States District Court for the District of New Jersey, Hon. __________________, at the ___________________ US Courthouse, located at ___________________, New Jersey _____, at _____ o’clock in the _____ noon, or as soon thereafter as counsel can be heard, why an Order should not be entered;

1. Preliminarily enjoining and restraining the Defendants from prosecuting the case Indictment No. 11-09-00810-I;

2. Granting such other relief as the Court deems equitable and just.

And it is further ORDERED that:

1. Pending further hearing on this Order to Show Cause, defendants are temporarily enjoined and restrained from prosecuting the case Indictment No. 11-09-00810-I;

2. A copy of this Order to Show Cause, supporting affidavits, declarations or certifications, and Memorandum of Law submitted in support of this application, shall be served upon the Defendants personally within _____ days of the date hereof, in accordance with FRCP 4.

3. The Plaintiff must file with the Court its proof of service of the pleadings on the Defendants no later than three (3) days before the return date.

4. Defendants shall file and serve a written response to this Order to Show Cause and proof of service by ____________________, 2019. You must send a courtesy copy of your opposition papers directly to Judge _________________________, whose address is: _______________________________, New Jersey _________.

5. The Plaintiff must file and serve any written reply to the Defendants’ opposition to the Order to Show Cause by ______________________, 2019.  A courtesy copy of the reply papers must be sent directly to the chambers of Judge ________________________.

6. If the Defendants do not file and serve opposition to this Order to Show Cause, the application will be decided on the papers on the return date and relief may be granted by default, provided that the Plaintiff files a proof of service and a proposed form of Order at least three days prior to the return date.

7. If the Plaintiff has not already done so, a proposed form of Order addressing the relief sought on the return date (along with a self-addressed return envelope with return address and postage) must be submitted to the Court no later than three (3) days before the return date.

8. The Court will notify the parties whether it will entertain argument on the return date of the Order to Show Cause in accordance with Local Civil Rule 78.1.

THE HONORABLE JOHN MICHAEL VAZQUEZ

United States District Court Judge

MEMORANDUM OF LAW IN SUPPORT OF THE EMERGENCY MOTION PURSUANT TO THE ALL WRITS ACT AND THE ANTI-INJUNCTION ACT FOR AN ORDER TO SHOW CAUSE TO ENJOIN THE NEW JERSEY CRIMINAL PROCEEDINGS

Dr. Stephanatos seeks modest, equitable relief in this Court: an order temporarily staying the scheduled trial in state court, until evidentiary hearings are performed to address Stephanatos’ Fourth and Fourteenth Amendment violation claims, including adjudication of his Section 1983 lawsuit alleging civil rights violations.

Under the All Writs Act, 28 U.S.C. § 1651(a), this Court can issue a stay of the state court trial pending appeal, to preserve jurisdiction. FTC v. Dean Foods Co., 384 U.S. 597, 604 (1966) (recognizing power to issue order enforcing status quo pending review).  This is so even when jurisdiction has not yet been established. Roche v. Evaporated Milk Assn., 319 U.S. 21, 42 (1943) (authority of appellate court “is not confined to the issuance of writs in aid of a jurisdiction already acquired by appeal but extends to those cases which are within its appellate jurisdiction although no appeal has been perfected”); Adams v. United States, 317 U.S. 269, 273 (1942) (court may grant writ under All Writs Act whenever it determines such action necessary “to achieve the ends of justice entrusted to it”); I.T.T. Community Dev. Corp. v. Barton, 569 F.2d 1351, 1359 n. 19 (5th Cir. 1978) (under All Writs Act, court may issue an order preserving the status quo when the “potential for jurisdiction exists . . . to ensure that once its jurisdiction is shown to exist, the court will be in a position to exercise it).

A WARRANTLESS ENTRY INTO A HOME IS PRESUMPTIVELY INVALID UNLESS THE STATE CAN SHOW THAT IT FALLS WITHIN ONE OF THE SPECIFIC, DELINEATED EXCEPTIONS TO THE GENERAL WARRANT REQUIREMENT.

In late-November, 2018, as he was preparing for trial, Stephanatos discovered bombshell evidence (See Exhibit A, Reply Brief to ATF, LLC Defendants, filed November 27, 2018) that proves beyond any doubt that the ex-parte writ of possession issued by the Clerk of the Superior Court on May 13, 2011 was void ab initio because it was entered the same day as the judgment for possession in violation of N.J.S.A. 2A:18-57.  Furthermore, the May 13, 2011 ex-parte judgment for possession was also void ab initio, for failure to comply with N.J.S.A. 2A:18-56. (Proof of notice to quit prerequisite to judgment).

Based on New Jersey Supreme Court decisions and state statutes, the Clerk had no jurisdiction to issue the writ:

Even if the judgment had been entered lawfully (we hold it was not), the clerk had no *316 jurisdiction to issue the warrant of removal the same day the judgment was entered. N.J.S.A. 2A:18-57 provides that in summary dispossess proceedings "[n]o warrant of removal shall issue until the expiration of 3 days after entry of judgment for possession." HOUSING AUTHORITY OF CITY OF WILDWOOD v. Hayward, et al., 406 A.2d 1318, 81 N.J. 311 (1979).

Void ab initio is defined as “[n]ull from the beginning.”   Black's Law Dictionary, 1604 (Deluxe 8th ed. 2004), while “voidable” is defined as “[v]alid until annulled ․ capable of being affirmed or rejected at the option of one of the parties.”  Id. at 1605.   As the terms are applied to a judgment [or order], a “void judgment” [or void order] is “[a] judgment [or order] that has no legal force or effect, the invalidity of which may be asserted by any party whose rights are affected․  From its inception, a void judgment continues to be absolutely null.”  Id. at 861.   Whereas, a “voidable judgment” is one “that although seemingly valid, is defective in some material way.”  Ibid.  Gobe Media Group, LLC, v. Cisneros, 403 N.J. Super. 574, 577, (App. Div. 2008). A judgment or order is considered void "if there has been a failure to comply with a requirement which is a condition precedent to the exercise of jurisdiction by the court." James v. Francesco, 61 N.J. 480, 485 (1972) (citing Restatement of Judgments, 8, comment b, pp. 46-47 (1942)).

A recent New Jersey Appellate Division decision is also on point regarding the lack of authority of the sheriff to execute a void writ: Borromeo v. Diflorio, 976 A.2d 388 (N.J. Super. Ct. App. Div. 2009)

First, if the initial writ were void, any execution relying upon its apparent authority was not justified and cannot be sustained.   See Ryerson, supra, 11 N.J.L. at 352 (if the sheriff had no authority under procedurally defective writ of execution, he could not, of his own volition, assume the authority to post and sell the subject realty).   Issuance of the writ to the Mercer County Sheriff placed in the hands of the Somerset County Sheriff was as if there were no writ at all.   In posting the misdirected writ, the Somerset County Sheriff was no more than a trespasser on Migliaccio's property.

This Court has already been briefed on the naked power of the sheriff to execute void writs:

“[I]n New Jersey it has been the established principle, ․ making lands liable to be sold for the payment of debts, that the right of the sheriff to sell and convey lands, is a mere naked power, so that to render a title under his deed available, every requisite of the law must be shown to have been complied with[.]”  Todd v. Philhower, 24 N.J.L. 796, 800 (E. & A. 1854).

I am alleging that the Passaic County Prosecutor and the Passaic County Sheriff should have known that the writ was void ab initio and that they have been fraudulently concealing for more than 7.5 years this extraordinary evidence of the void writ from the courts to Stephanatos’ detriment.  I am also alleging that the Passaic County prosecutor(s) have been fraudulently concealing the Wayne Dispatch audiotapes for more than 7.5 years to Stephanatos’ detriment, because these audio tapes prove that Stephanatos never pointed a gun at the two officers and that they formed a conspiracy to frame him.  This shows bad faith, prejudice, harassment and cover-up in the state court proceedings.  The state courts cannot be trusted to fairly adjudicate Stephanatos’ federal civil rights violations.  Hence, this emergency motion to enjoin the state proceedings until this Court rules on the 42 U.S.C. Section 1983 lawsuit.

Furthermore, Stephanatos has discovered that the sheriff entered his property at 8:50 am, before the scheduled 9:00 am unlawful and unconstitutional eviction and performed an unlawful search by peering through his windows.   All evidence obtained prior to the 9:00 am event should be excluded pursuant to State v. Atwood, 232 N.J. 433 (2018), Franks v. Delaware, supra and other case law cited herein. 

The New Jersey Supreme Court in the 1983 case of State In the Interest of T.L.O., 94 N. J. 331, 463 A. 2d 934 (1983), reasoned that the Supreme Court of the United States has made it quite clear that the exclusionary rule is equally applicable "whether the public official who illegally obtained the evidence was a municipal inspector, a firefighter, or school administrator or law enforcement official." The New Jersey Court concluded, "that if an official search violates constitutional rights, the evidence is not admissible in criminal proceedings."  See also the recent case of State v. Atwood, 232 N.J. 433 (2018) where the New Jersey Supreme Court stated:

Before trial, a defendant claiming to be aggrieved by an unreasonable search or seizure may apply to suppress the evidence seized, whether the search or seizure was executed with a warrant or constitutes a warrantless search.  R. 3:5–7(a). Subsection (b) of that rule allocates the evidentiary burden as to searches based on whether they are or are not supported by a warrant, and subsection (c) prescribes that “[i]f material facts are disputed [in suppression motions], testimony thereon shall be taken in open court.” R. 3:5–7(c). Rule “3:5–7 contemplate[s] pre-trial hearings on Fourth Amendment issues which are collateral to guilt or innocence.  In addition, evidence relating to the propriety of a stop or seizure is generally separate from issues of guilt or innocence.  Usually, judicial economy is best served by resolving these issues pre-trial.” State v. McLendon, 331 N.J. Super. 104, 109, 751 A.2d 148 (App. Div. 2000).

The proper mechanism through which to explore the constitutionality of warrantless police conduct is an evidentiary hearing. See N.J.R.E. 104; see also, e.g., State v. Gamble, 218 N.J. 412, 419, 95 A.3d 188 (2014) (noting that Court derived facts of case from “evidentiary hearing held in response to defendant's motion to suppress” evidence seized after investigatory stop).

“A warrantless entry into a home is presumptively invalid unless the State can show that it falls within one of the specific, delineated exceptions to the general warrant requirement.  Evidence found pursuant to a warrantless search not justified by an exception to the warrant requirement is subject to suppression under the exclusionary rule”.  State of New Jersey in the Interest of J.A. (A-38-16) (077383, decided June 6, 2018.  In the above case, Police officers decided to secure the perimeter of the house. While performing an exterior security check, an officer peered through a first-floor window and noticed a pink glittery phone case matching the victim’s description on a nearby bed. At that point, the police thought that the young man who took the victim’s phone may have been inside the house. No one responded to the officers’ several knocks on the front door. One officer found an unlocked window on the first floor, through which he and another officer entered the house.  The above fact pattern is strikingly similar to the ones in the Stephanatos case; therefore, all evidence obtained by the sheriff officers as a result of the warrantless search must be excluded from the proceedings.

See also the recent case of the United States Supreme Court, Collins v. Virginia, No. 16-1027, decided May 29, 2018, 584 U.S. __ (2018).  In defining the protected areas of the home, the Supreme Court said: 

“As an initial matter, the part of the driveway where Collins’ motorcycle was parked and subsequently searched is curtilage. When Officer Rhodes searched the motorcycle, it was parked inside a partially enclosed top portion of the driveway that abuts the house. Just like the front porch, side garden, or area “outside the front window,” that enclosure constitutes “an area adjacent to the home and ‘to which the activity of home life extends.’ ”  Florida v.Jardines, 569 U. S., at 6, 7.”

The Fourth Amendment “indicates with some precision the places and things encompassed by its protections”: persons, houses, papers, and effects. Oliver v. United States, 466 U. S. 170, 176 (1984) . The Fourth Amendment does not, therefore, prevent all investigations conducted on private property; for example, an officer may (subject to Katz) gather information in what we have called “open fields”—even if those fields are privately owned—because such fields are not enumerated in the Amendment’s text. Hester v. United States, 265 U. S. 57 (1924) .

But when it comes to the Fourth Amendment, the home is first among equals. At the Amendment’s “very core” stands “the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Silverman v. United States, 365 U. S. 505, 511 (1961). This right would be of little practical value if the State’s agents could stand in a home’s porch or side garden and trawl for evidence with impunity; the right to retreat would be significantly diminished if the police could enter a man’s property to observe his repose from just outside the front window.[1]

We 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. That principle has ancient and durable roots. Just as the distinction between the home and the open fields is “as old as the common law,” Hester, supra, at 59, so too is the identity of home and what Blackstone called the “curtilage or homestall,” for the “house protects and privileges all its branches and appurtenants.” 4 W. Blackstone, Commentaries on the Laws of England 223, 225 (1769). This area around the home is “intimately linked to the home, both physically and psychologically,” and is where “privacy expectations are most heightened.” California v. Ciraolo, 476 U. S. 207, 213 (1986).

While the 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, 466 U. S., at 182, n. 12. Here there is no doubt that the officers entered it: The front porch is the classic exemplar of an area adjacent to the home and “to which the activity of home life extends.” Ibid

“when it comes to the Fourth Amendment, the home is first among equals.” The amendment’s protections, the court had ruled, extend to a home’s “curtilage,” meaning the areas immediately surrounding it, including driveways.

Florida v.Jardines, 569 U. S., at 6, 7. (2013)

Here, the sheriff officers armed with M16 assault rifles and a void writ and with the specific intend to remove Stephanatos from his home (a criminal act in violation of NJ Rev Stat § 2C:33-11.1 (2013) - Certain actions relevant to evictions, disorderly persons offense), entered Stephanatos’ driveway illegally, they searched his garage illegally, they entered his porch area illegally and started looking inside his windows, also illegally, after Stephanatos did not answer the door bell.  The New Jersey law has criminalized the peering into dwelling places, a crime that has been committed by the sheriff.  See 2C:18-3. Unlicensed entry of structures; defiant trespasser; peering into dwelling places.

The sheriff already made statements in their reports that they saw a car inside the closed garage, implying that they were performing a search to “secure the home”.  The sheriff officers also stated that based on the parked cars, “they knew that there were people inside the home”.  Stephanatos submits that all evidence obtained by the sheriff was the result of an illegal search and warrantless arrest and warrantless seizure and also was fruit under the poison tree and must be excluded from the criminal proceedings following an evidentiary hearing pursuant to State v. Atwood, 232 N.J. 433 (2018), Franks v. Delaware, Florida v.Jardines, 569 U. S., at 6, 7. (2013).

On December 26, 2018, Stephanatos filed an Emergency Motion (Order to Show Cause) with the trial court to introduce the new evidence of the void writ and to request that the trial court vacates its May 2018 and June 2018 orders and order an evidentiary hearing.  The hearing on that motion occurred on January 4, 2019.  The Passaic County Prosecutor provided no written response to the motion.  At the hearing, the prosecutor stated that “the writ was valid” without providing any explanation and without refuting Stephanatos’ evidence and legal arguments.  The trial court refused to modify its May and June 2018 order without addressing the evidence in Petitioner’s motion papers and the legal cases cited therein.

Stephanatos is extremely concerned with the high prejudice caused by the May and June 2018 ruling of the trial judge that the ex-parte writ was valid and that had to be obeyed by Stephanatos.  Now that the ex-parte writ is proven to be void ab initio, that order by Judge Guida must be modified or vacated.  See United States v. Mahasin, 442 F.3d 687 (8th Cir. 2006) “The trial court erroneously permitted the government to introduce the “face sheet” of a search warrant in order to establish why the police were at a particular house (where they found a gun).  Even with a limiting instruction, the unfair prejudice occasioned by admitting the search warrant face sheet outweighed the probative value of the evidence.”

The trial court order denying all 33 Omnibus Motions and associated defenses and constitutional right violation claims will cause immediate harm to Stephanatos and to the adversarial system – harm which cannot be undone by a belated appeal after jury verdict.  It is obvious that there is a “bad faith” in the state courts against Stephanatos and they are refusing to obey their very own procedures requiring an evidentiary hearing when a party provides evidence regarding the warrantless search and seizure.  The trial court called the request for evidentiary hearing a “fishing expedition”!! To provide a check against these dangers of malicious prosecution and the intentional violation of Stephanatos’ Fourth, Fifth and Fourteenth Amendment rights, this Court should grand Stephanatos’ emergency stay request until this Court rules on the civil rights lawsuit. 

FACTUAL AND PROCEDURAL BACKGROUND

In late-November, 2018, as his was preparing for trial, Stephanatos discovered bombshell evidence (See Exhibit A, Reply Brief to ATF, LLC Defendants, filed November 27, 2018) that proves beyond any doubt that the ex-parte writ of possession issued by the Clerk of the Superior Court on May 13, 2011 was void ab initio because it was entered the same day as the judgment for possession in violation of N.J.S.A. 2A:18-57.  Furthermore, the May 13, 2011 ex-parte judgment for possession was also void ab initio, pursuant to N.J.S.A. 2A:18-56. (Proof of notice to quit prerequisite to judgment).

Based on New Jersey Supreme Court decisions and state statutes, the Clerk had no jurisdiction to issue the writ:

Even if the judgment had been entered lawfully (we hold it was not), the clerk had no *316 jurisdiction to issue the warrant of removal the same day the judgment was entered. N.J.S.A. 2A:18-57 provides that in summary dispossess proceedings "[n]o warrant of removal shall issue until the expiration of 3 days after entry of judgment for possession." HOUSING AUTHORITY OF CITY OF WILDWOOD v. Hayward, et al., 406 A.2d 1318, 81 N.J. 311 (1979).

Equally important, the Supreme Court in an identical fact pattern as in the Stephanatos case (i.e., the ex-parte issuance of judgment for possession and ex-parte writ the same day as the judgment) has ruled that the judgment for possession was also void for lack of jurisdiction because it was entered in violation of state law.  Here are the facts and the Supreme Court Decision:

On June 15 the Housing Authority's counsel wrote to the court clerk, ex parte, and enclosed an affidavit which stated that the tenants had failed and neglected to comply with the terms of the settlement. He requested that a judgment for possession be entered and a warrant of removal issued. On June 16, without notice to the tenants, a judgment for possession was entered and that same day a warrant of removal issued.

It is clear that the judgment for possession entered on June 16 was invalid. The court's order dated April 28 which memorialized the terms of the settlement did not fix a time within which the back rent had to be paid. Obviously a reasonable time was intended. However, the Housing Authority, although it concluded that there had been a failure to comply with the terms of the settlement, should not have applied ex parte for entry of a judgment for possession on that ground, and the clerk should not have entered judgment without giving the tenants an opportunity to be heard. R. 6:6-3(b). Even if the judgment had been entered lawfully (we hold it was not), the clerk had no *316 jurisdiction to issue the warrant of removal the same day the judgment was entered. N.J.S.A. 2A:18-57 provides that in summary dispossess proceedings "[n]o warrant of removal shall issue until the expiration of 3 days after entry of judgment for possession."

Since the June 16 judgment was illegal and void, the tenants' motion to vacate that judgment and quash the warrant of removal, heard on October 6, should have been granted on jurisdictional grounds. Mrs. Hayward's appeal from that ruling was timely and should not have been dismissed by the Appellate Division.

*317 Accordingly, we set aside the dismissal, reinstate the appeal and, having considered the merits, reverse the October 6 ruling of the trial court and direct that court to vacate the judgment for possession and warrant of removal, and dismiss the complaint.

Housing Authority of City of Wildwood v. Hayward, et al., 406 A.2d 1318, 81 N.J. 311 (1979)

A recent New Jersey Appellate Division decision is also on point regarding the lack of authority of the sheriff to execute a void writ: Borromeo v. DIFLORIO, 976 A.2d 388 (N.J. Super. Ct. App. Div. 2009)

First, if the initial writ were void, any execution relying upon its apparent authority was not justified and cannot be sustained.   See Ryerson, supra, 11 N.J.L. at 352 (if the sheriff had no authority under procedurally defective writ of execution, he could not, of his own volition, assume the authority to post and sell the subject realty).   Issuance of the writ to the Mercer County Sheriff placed in the hands of the Somerset County Sheriff was as if there were no writ at all.   In posting the misdirected writ, the Somerset County Sheriff was no more than a trespasser on Migliaccio's property.

This Court has already been briefed on the naked power of the sheriff to execute void writs:

“[I]n New Jersey it has been the established principle, ․ making lands liable to be sold for the payment of debts, that the right of the sheriff to sell and convey lands, is a mere naked power, so that to render a title under his deed available, every requisite of the law must be shown to have been complied with[.]”  Todd v. Philhower, 24 N.J.L. 796, 800 (E. & A. 1854).

In May and June 2018, the trial court denied all motions of Stephanatos (including the motions to suppress evidence based on illegal search and seizure) and denied all Stephanatos’ defenses, including the Castle Doctrine Defense.  Furthermore, this Court ruled that Stephanatos did not have any expectation of privacy.  Because the trial court had believed the assertions of the state that the writ was lawful, all these rulings must be reconsidered based on the discovery that the writ and/or the judgment for possession were procedurally defective and void ab initio.

On December 26, 2018, Stephanatos filed an emergency motion (order to show cause) and asked the trial court to allow this new evidence to complete the record and to revise its rulings regarding Stephanatos’ privacy rights, Castle Doctrine Defense, other applicable defenses and suppression of evidence motions.  Stephanatos also asked the trial court to rule that the sheriff officers were no more than trespassers on Stephanatos’ property on June 28, 2011.  The trial court refused to modify its May and June 2018 orders without providing an application of the law to the facts and without explaining its reasoning.  The trial court stated that it had no jurisdiction to rule on the void writ, because “it was a civil matter, and this is a criminal matter”.  The trial court also cited the 2013 Judge Hochberg dismissal of the 42 U.S.C. Section 1983 lawsuit as proof that the writ was not void.  When the Petitioner replied that the Federal Court is currently considering the new evidence, the trial court did not respond.  The prosecutor stated during the January 4, 2019 hearing that “the writ was not void” without providing any justification or refuting Stephanatos’ evidence and legal papers.

Stephanatos has also filed motions for leave to appeal the trial court’s ruling.  The Appellate Division and the New Jersey Supreme Court both denied the motions for leave to appeal without any explanation and certainly not on the merits.  These orders are attached in this brief.  Although the trial court on January 4, 2019 stated that it will provide Petitioner with an order denying the emergency motion, Plaintiff has not received the order at the time of the filing of this Emergency Motion with this Court.

RELEVANT LAW

AN EVIDENTIARY HEARING IS REQUIRED BECAUSE STEPHANATOS RAISED NUMEROUS FACTUAL DISPUTES ON SEVERAL MATERIAL POINTS WHICH MUST BE RESOLVED BEFORE THE COURT CAN DECIDE THE LEGAL ISSUE OF WHETHER EVIDENCE WAS OBTAINED IN A CONSTITUTIONALLY PERMISSIBLE MANNER

Petitioner incorporates by referenced the factual submissions to this Court, providing numerous instances of inconsistent statements by the sheriff officers and assertive denials by Stephanatos that he performed the unlawful act accused by the sheriff officers;  Stephanatos also provided evidence that at the time of the alleged assault he was in his home computer and also provided forensic evidence that the only way that the sheriff obtained that evidence was either by peering through his home windows or were outright fabrications.

The issue of evidence obtained by an unconstitutional search and seizure is of considerable importance to the administration of criminal justice.

Major Lie by Lucas, D’Agostino

Specifically, both officers lied when they testified that the defendant had his front door open and his storm door shut and that they were able to see the defendant pointing a gun at them through the glass storm door. (Lucas testified to this at GJT 10-24 to 11-12; D’Agostino testified to this at GJT 16-1 to 17).

It is the Petitioner’s contention that he had the front door (and all other doors) closed and locked with a deadbolt.  He had placed a business sign in the front door (see image below) so that the Sheriff’s Officers would see that there was a tenant on the premises and that they could not proceed with the illegal removal without a Warrant for Removal obtained from a Law Division Judge in compliance with the Unlawful Entry and Detainer Laws of this state.  See N.J.S.A. 2A:39-1 Unlawful entry prohibited.  Had defendant left the door open, they would not have been able to see the business sign.

View of the front entrance of Stephanatos’ residence showing the business sign.  Photo taken by the Passaic County Sheriff in the evening hours of June 28, 2011.

In fact, in the Search Warrant prepared by Detective Scala, he writes that “CPL. Lucas relates that upon knocking on the front entrance door of the residence”.  So, there you have it:  Lucas included statements in a sworn affidavit that he actually knocked the front entrance door that directly contradict his later statements that the door was open..

It makes no sense that I would keep the front door open for the sheriff to come in, when in fact I did not want anybody to come inside my home while the appeals were pending in the appellate courts and there was a lawsuit in the Law Division to vacate the tax deed.  These two deputies are obviously lying to cover their criminal activities.  Having a JD Degree, I knew that if a leave a door open, I am actually inviting the sheriff to enter my home; the same result is if I answer the door.  That is why I did not answer the door bell and never went to the door (in fact, I very rarely if ever answer the front door because I have a mild form of Asperger’s and avoid contact with people).  I would never do such a thing. 

Due to the sun glare (this is a north-east facing home and it has significant sun glare in the am hours), and when Stephanatos refused to come to or open the front door, Ronald A. Lucas started peering through the side door window to avoid the sun glare.  He then claimed he saw a gun and then both officers (D’Agostino and Lucas) claim that they saw Stephanatos pointing a gun at them through an open front door.  Stephanatos denies that he ever pointed any gun at the two officers and he can prove at an evidentiary hearing that Lucas was positioned at the edge of the front porch and was peering inside Stephanatos’ home.

Note the significant sun glare, making it impossible to see inside the home, unless a person puts his/her face flush with the window and starts peering inside the home.  But for Ronald A. Lucas’ peering through the side door window to avoid the sun glare, the events of June 28, 2011 would never have happened. 

Furthermore, the sheriff post-incident reports all show that my back door was locked with deadbolt, my garage was locked with deadbolt, and my car was also locked.  Who locks his car inside a locked garage, and who places deadbolts in garage?  Well, a person like Dr. Stephanatos who knew the law and knew that he needed to prevent everybody from coming inside his home, especially that day, until the Appellate Courts adjudicate the case.  Dr. Stephanatos also knew that what Robert Del Vecchio and ATF were doing was illegal and that they took advantage of the sheriff and the heavy caseload of Chancery Judge McVeigh and the Office of Foreclosure.  These actions of the antitrust conspirators[2] was part of the scheme to defraud homeowners (including Dr. Stephanatos) of the property.

Thus, if an individual does not expose himself to public view (just as Stephanatos did), he maintains an expectation of privacy and is therefore in his home and not a public place. Cummings, 418 F.3d at 686; see also id. at 685 (noting that plaintiff's attempt to talk to officers through a window, his partial opening of his front door, and his refusal to grant the officers' request to enter his home manifested his intent to maintain his expectation of privacy in his home); United States v. Saari, 272 F.3d 804 (6th Cir. 2001) (finding that defendant did not voluntarily expose himself to the public when he opened his door following the forceful knocks of police, who had positioned themselves in front of the sole exit to his apartment with their guns drawn).

As alleged by Stephanatos, the facts show that he never left his home, he never opened his door to no one, he never talked to anyone through a window nor exposed himself to public view. Therefore, since there was no consent or exigency justifying The Passaic County Defendants entrance into his home, they conducted an unlawful search, they then claimed that they were assaulted based on what they thought they observed and arrested Stephanatos without a warrant inside his home in violation of Payton v. New York, 445 U.S. 573 (1980).  Stephanatos’ warrantless arrest violated Payton because “no federal statutes have been cited to indicate any congressional determination that warrantless entries into the home are "reasonable." “, Payton, supra, Pp. 445 U. S. 590-601.

Florida v. Jardines, 569 U.S. 1 (2013), is a decision by the United States Supreme Court which held that police use of a trained detection dog to sniff for narcotics on the front porch of a private home is a "search" within the meaning of the Fourth Amendment to the United States Constitution, and therefore, without consent, requires both probable cause and a search warrant.  Justice Scalia's majority opinion, joined by Justices Kagan, Thomas, Ginsburg and Sotomayor, did not focus on the right to privacy, which is implicated by most modern-day Fourth Amendment cases.  Rather, the decision hinged on the basis of a citizen's property rights.  It followed the 2012 precedent from United States v. Jones, 565 U.S. 400 (2012) that when police physically intrude on persons, houses, papers, or effects for the purpose of obtaining information, "a 'search' within the original meaning of the Fourth Amendment" has "undoubtedly occurred." This conclusion is consistent with the Court’s early Fourth Amendment jurisprudence, which until the latter half of the 20th century was tied to trespass under common law. At the Fourth Amendment's "very core", the Court said, stands "the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.”

Here, there is an unreasonable intrusion into both the property rights of Dr. Stephanatos (the execution of the void writ), as well as a violation of his privacy rights (the unlawful peering through the side door window to avoid the sun glare).  “Where, as here, the Government obtains information by physically intruding on a constitutionally protected area, such a search has undoubtedly occurred.” Jones, supra, at note 3.  See also Jones, supra, note 5:  “Trespass alone does not qualify, but there must be conjoined with that what was present here: an attempt to find something or to obtain information”, exactly what the sheriff officer did in the Stephanatos’ case by searching his person, home, property and effects in an unconstitutional manner.  In other words, the sheriff officer’s intend was “to secure the home” of Stephanatos using a void writ, they trespassed onto his home, searched his home and other effects and invaded his privacy by peering through his side door window.

MORE EVIDENCE OF FALSE CERTIFICATIONS, LIES AND FABRICATIONS SUBMITTED TO THE COURTS, SHOWING THE BAD FAITH OF THE PROSECUTOR

In addition to the fraudulent concealment of the crucial evidence that the ex-parte writ was void ab initio, and the refusal to provide the requested discovery (such as the Wayne Dispatch audio tapes that have shed light into the conspiracy to frame Dr. Stephanatos), Stephanatos provides more evidence of perjured testimony and false certifications provided by the new prosecutor Stephen Bollenbach to the Appellate Division and the New Jersey Supreme Court:

In his certification, the prosecutor wrote (he lied) that the “officers lunged to the ground and one of them injured his shoulder and bicep”.

Lucas never wrote in his June 28, 2011 report that he was injured or that he lunged to the ground. Lucas wrote in his report that “as I entered the woods, I stumbled”.

Furthermore, D’Agostino never wrote that he lunged to the ground.  He also never testified that he lunged to the ground.  D’ Agostino never wrote or stated that any one was injured.  In addition, Lt. Nick Mango wrote in his June 29, 2011 report that “nobody was hurt”.  In addition, eye-witnesses have stated that they saw Lucas during the evening of June 28, 2011 inside the 687 Indian Road property moving around and showing no signs of any injury.

We have also discovered that Lucas was a football player and body builder and suffered these injuries over his many years of lifting heavy weights and hitting his opponents with his shoulder (he was a linebacker with the Pompton Lakes Cardinals at #41).  This guy then defrauded the Police and Firemen Retirement Fund by claiming disability and started the double dipping.  If he had suffered a “pretty severe injury” (see the GJT of Lucas), “requiring five pins”, he would have been in severe pain.  However, eye witnesses said that Lucas never showed any pain during the evening of June 28, 2011.

FALSE STATEMENTS SUBMITTED TO FEDERAL COURTS (JUDGE HOCHBERG)

There was no altercation

After Stephanatos sued the sheriff officers in Federal Court in 2012, they wrote in their defense statements that there was an “altercation” between the sheriff and Stephanatos.  There are no facts presented to Stephanatos during the criminal proceedings in the Passaic County Court that suggest that an altercation ever took place.

Here is the definition of an altercation:

Dictionary Definition for “Altercation”

a heated or angry dispute; noisy argument or controversy.

Source:  http://dictionary.reference.com/browse/altercation

a loud argument or disagreement

Source:  http://dictionary.cambridge.org/dictionary/british/altercation

According to the testimonies and reports of the two sheriff officers, there was nothing said between them and Stephanatos.  For example, when the Passaic County prosecutor, Walter Dewey, asked officer D’Agostino as to whether Stephanatos said anything to him, his response was that Stephanatos did not say anything to him.  Therefore, there was no heated or angry dispute between the Stephanatos and the two officers.

Thus, the sheriff officers and/or their layers are falsifying their very own facts and they are making willfully false misrepresentations to the federal Court.

The Passaic County prosecutors and the sheriff know that the only way to win this case is through lies and lies and more lies. 

An unlawful eviction (as the one performed here using the void ex-parte writ and the void ex-parte judgment for possession) can violate both the Fourth Amendment and the Fourteenth Amendment to the U.S. Constitution. Soldal v. Cook County, 506 U.S. 56, 61 (1992) (holding the seizure of property violates the Fourth Amendment); United States v. James Daniel Good Real Prop., 510 U.S. 43, 62 (1993) (holding, absent exigent circumstances, due process entitles a homeowner to notice and an opportunity to be heard before seizure of real property); Thomas v. Cohen, 304 F.3d 563, 576 (2002) (finding an illegal eviction clearly violated [home resident’s] Fourteenth Amendment right to be free from unreasonable seizures). 

The Fourth Amendment "protects two types of expectations, one involving searches,' the other seizures'" (United States v Jacobsen, 466 US 109, 113 (1984)). "A search' occurs when an expectation of privacy that society is prepared to consider reasonable is infringed," whereas "[a] seizure' of property occurs when there is some meaningful interference with an individual's possessory interests in that property" (Jacobsen, 466 US at 113; see also People v Ramirez-Portoreal, 88 NY2d 99, 109 (1996) (suppression court must distinguish "between the separate concepts of possession and an expectation of privacy")). Because Stephanatos’ motion papers alleged an unreasonable invasion of his rights to both privacy and possession, an evidentiary hearing is required.

Stephanatos has given the state courts, including the appellate courts, ample opportunity to adjudicate his Fourth and Fourteenth Amendment violation claims, and to conduct an evidentiary hearing, to no avail.

Stephanatos did not have a full and fair opportunity to litigate the evidence suppression issues caused by the unreasonable search and seizure because the trial court refused to perform an evidentiary hearing stating that the Petitioner is asking for “a fishing expedition”.  This statement by the trial court is solid evidence of “bad faith”.

The Fourth Amendment assures the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Amendment was primarily a reaction to the evils associated with the use of the general warrant in England and the writs of assistance in the Colonies, Stanford v. Texas, 379 U.S. 476, 481 -485 (1965); Frank v. Maryland, 359 U.S. 360, 363 -365 (1959), and was intended to protect the "sanctity of a man's home and the privacies of life," Boyd v. United States, 116 U.S. 616, 630 (1886), from searches under unchecked general authority.  The exclusionary rule was a judicially created means of effectuating the rights secured by the Fourth Amendment.

Under Franks v Delaware, 438 US 154 (1978), a trial court must hold a hearing at a defendant's request whenever a defendant offers evidence sufficient to demonstrate a substantial preliminary showing that the affiant made a false statement—knowingly and intentionally, or with reckless disregard for the truth—and the false statement was necessary to the finding of probable cause required to issue the warrant.

A hearing is required only when "the defendant raises a factual dispute on a material point which must be resolved before the court can decide the legal issue of whether evidence was obtained in a constitutionally permissible manner" (People v Burton, 6 NY3d 584, 587 (2006)). Because defendant has alleged sufficient facts which, if true, would establish that he was "aggrieved by unlawful or improper acquisition of evidence", his motion to suppress should have been granted as a matter of law.  See also State v. Atwood, supra. (same).

At evidentiary hearings, the State presents witnesses to substantiate its basis for the challenged warrantless conduct, and the defense is afforded the opportunity to confront and cross-examine the State's witnesses. “The hearing must be conducted in the presence of counsel and defendant, and the defendant can only be excluded from the hearing for extraordinary reasons that must be articulated on the record.” State v. Byrd, 198 N.J. 319, 351, 967 A.2d 285 (2009). N.J.R.E. 104 hearings provide an opportunity to probe adverse evidence through cross-examination. See Sutter v. Horizon Blue Cross Blue Shield of N.J., 406 N.J. Super. 86, 98, 966 A.2d 508 (App. Div. 2009). Indeed, our courts have recognized the importance of the ability to question witnesses in case of factual disputes. See State v. Green, 346 N.J. Super. 87, 101–02, 787 A.2d 186 (App. Div. 2001).

Here, there is no evidence that Petitioner’s home would have been searched if not for the unsupported, warrantless search through his side door window.  Without the unlawful peering through his window, the sheriff officers would not have seen any evidence against the Petitioner.  The search was unquestionably incident to the wrongful eviction using a void ab initio writ, and the evidence obtained through the illegal search should thus be subject to suppression.

The state courts have denied petitioner a meaningful opportunity to present evidence in support of his constitutional claims.  They then resolved disputed questions of material fact without holding an evidentiary hearing.  As a result, the state court failed to make reasonable credibility findings or to receive evidence necessary to resolve the disputed facts set forth in an affidavit Petitioner submitted that contradicts the facts relied on by the state in connection with a pivotal pre-trial issue regarding unlawful search and unlawful seizure.  These irregularities cast grave doubt on whether the state court has acted “in accord with the dictates of the Constitution—and, in particular, in accord with the Due Process Clause.” Evitts v. Lucey, 469 U.S. 387, 401 (1985).

THIS COURT HAS THE AUTHORITY TO GRANT THE REQUESTED RELIEF

The Supreme Court and all courts established by Act of Congress (such as this District Court) may “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law” pursuant to the All Writs Act, 28 U.S.C. § 1651. However, the Anti-Injunction Act, 28 U.S.C. § 2283 limits the scope of the All Writs Act by prohibiting “injunction[s] to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.” 28 U.S.C. § 2283.

“The two statutes act in concert, and ‘[i]f an injunction falls within one of [the Anti-Injunction Act’s] three exceptions, the All-Writs Act provides the positive authority for federal courts to issue injunctions of state court proceedings.” In re Diet Drugs, 369 F.3d 293, 305 (3d Cir. 2004) (hereafter “In re Diet Drugs II”). A federal court has the positive authority to issue injunctions of state proceedings if an injunction falls within one of the following exceptions: (1) express authorization by Act of Congress; (2) where necessary in aid of a court’s jurisdiction; and (3) to protect or effectuate its judgments. 28 U.S.C. § 2283; In re General Motors Corp. Pick-Up Truck Fuel Tank Products Liability Litigation, 134 F.3d 133, 143 (3d Cir. 1998). “[H]owever, the exceptions to the Anti-Injunction Act are very narrow indeed.” Id. at 144. Finally, ‘[a]ny doubts as to the propriety of a federal injunction against state court proceeding should be resolved in favor of permitting the state court to proceed in an orderly fashion to finally determine the controversy.” Id. (quoting Atlantic Coast Line R. Co. v. Brotherhood of Locomotive Eng’rs, 398 U.S. 281, 90 S.Ct. 1739, 1748 (1970)).

Here, all the above exceptions to the AIA exist.

a.    42 U.S.C. § 1983 CONSTITUTES AN "EXPRESSLY AUTHORIZED" EXCEPTION TO THE ANTI-INJUNCTION STATUTE (28 U.S.C. § 2283 (1970))

The one significant departure from this policy is the Supreme Court's decision in Mitchum v.Foster, 407 U.S. 225 (1972).  In concluding that § 1983 constituted an "expressly authorized" exception to the Anti-Injunction Statute (28 U.S.C. § 2283 (1970)), the Court relied heavily on extensive legislative history that revealed the framers' widespread mistrust of the state judiciary. 407 U.S. at 238-42. For a critical analysis of the Mitchum holding, see Redish, The Anti-Injunction Statute Reconsidered, 44 U. CHI. L. REv. 717, 733-39 (1977).

In Mitchum v. Foster, 407 U.S. 225 (1972), the U.S. Supreme Court held:

In Younger, this Court emphatically reaffirmed "the fundamental policy against federal interference with state criminal prosecutions." 401 U.S. at 401 U. S. 46. It made clear that even "the possible unconstitutionality of a statute on its face' does not, in itself, justify an injunction against good faith attempts to enforce it." 401 U.S. at 401 U. S. 54. At the same time, however, the Court clearly left room for federal injunctive intervention in a pending state court prosecution in certain exceptional circumstances -- where irreparable injury is "both great and immediate," 401 U.S. at 401 U. S. 46, where the state law is "`flagrantly and patently violative of express constitutional prohibitions,'" 401 U.S. at 401 U. S. 53, or where there is a showing of "bad faith, harassment, or . . . other unusual circumstances that would call for equitable relief." 401 U.S. at 401 U. S. 54. In the companion case of Perez v. Ledesma, 401 U. S. 82, the Court said that "[o]nly in cases of proven harassment or prosecutions undertaken by state officials in bad faith without hope of obtaining a valid conviction and perhaps in other extraordinary circumstances where irreparable injury can be shown is federal injunctive relief against pending state prosecutions appropriate." 401 U.S. at 401 U. S. 85. See also Dyson v. Stein, 401 U. S. 200, 401 U. S. 203.

Here, there is express authorization by Act of Congress, Title 42 U.S.C. §1983 that provides one of the three exceptions.

In Mitchum v. Foster, 407 U.S. 225 (1972), the U.S. Supreme Court held that:

Title 42 U.S.C. § 1983, which authorizes a suit in equity to redress the deprivation under color of state law "of any rights, privileges, or immunities secured by the Constitution . . . ," is within that exception of the federal anti-injunction statute, 28 U.S.C. § 2283, that provides that a federal court may not enjoin state court proceedings "except as expressly authorized by Act of Congress." And in this § 1983 action, though the principles of equity, comity, and federalism that must restrain a federal court when asked to enjoin a state court proceeding (cf. Younger v. Harris, 401 U. S. 37, and companion cases) are not questioned, the District Court is held to have erred in holding that the anti-injunction statute absolutely barred its enjoining a pending state court proceeding under any circumstances whatsoever. Pp. 407 U. S. 228-243.

Under Douglas v. City of Jeannett, 319 U.S. 157 (1943) and Younger v. Harris, 401 U.S. 37 (1971), the requirement that the federal plaintiff demonstrate that state remedies will not adequately protect his federal rights allows the states to administer their criminal laws unhampered so long as their courts remain able and willing to guard federal rights.  Here, however, the state courts have violated Stephanatos’ speedy trial rights for more than 7.5-years.  Thus, it is questionable that the state courts will also guard Stephanatos’ other federal rights.

A Third Circuit decision, Cooper v. Hutchinson, 184 F. 2d 119, 124 (3d Cir. 1950), in effect reverses the abstain policy in applying the Federal Civil Rights Act to state criminal proceedings.  Since the Civil Rights Act permits "suits in equity" by the aggrieved party, the court reasoned, it constitutes an express statutory authorization.  Presumably the court thought that by subjecting to liability in equity "every person" who acts under color of law to deprive another of constitutional rights, the Civil Rights Act contemplates use of the traditional equitable remedy of injunction against state court judges.

Petitioner submits that here there is danger of irreparable injury that is both great and immediate because the state courts have been refusing to address Stephanatos’ federal constitutional claims, including his requests for evidentiary hearing to prove that the sheriff performed an unconstitutional search and seizure in violation of the Fourth and Fourteenth Amendments.  The criminal proceedings are in their eighth (8) year and it is the longest-running state case.  What more proof this Court needs to realize that the bad faith criminal state proceedings were intended to harass, intimidate, and threaten the Petitioner in any possible shape or form and to force him to relinquish his rights.  This case is a prime example of a situation in which Stephanatos’ state court defenses(s) would prove unavailing – because all defenses have been denied and no evidentiary hearings have been performed and will not be performed until it is too late.

As is presented herein, in addition to the fabrication of evidence and the numerous inconsistent statements by the sheriff officers, the Defendants have been hiding from the courts the crucial evidence that the writ was void ab initio; they have also been hiding the Wayne Dispatch Audiotapes for 7.5 years; the tapes clearly prove that Stephanatos did not point a rifle at the two sheriff officers.

The Fifth Amendment states the following:  U.S. CONST. amend. V (“[N]or [shall any person] be deprived of life, liberty, or property, without due process of law . . . .”); id. amend. XIV, § 1.

When a criminal defendant is convicted based on unconstitutionally obtained evidence, that defendant’s “liberty” has been “deprived” without “due process of law.”[3] To avert that unconstitutional deprivation, the unlawfully obtained evidence should not be admitted in the first place. To be clear, this vision of Fourth Amendment suppression does not rest on an assertion of “substantive” due process.[4] Instead, the argument stems from the core, procedural meaning of the Due Process Clauses: deprivations of life, liberty, and property must accord with lawful process, including the search and seizure procedures set out by the Fourth Amendment.  On this view, suppression does not result from the Fourth Amendment itself, as many commentators and judges have suggested.[5] Instead, the exclusionary rule is a product of the Fourth Amendment and the Due Process Clauses working together.[6]

In this case, the constitutional violation of an illegal manner of entry and illegal search was a but-for cause of obtaining the evidence

The U.S. Supreme Court first adopted an exclusionary rule for evidence seized without a warrant in Weeks v. United States, 232 U.S. 383 (1914), which was applied to the states in Mapp v. Ohio, 367 U.S. 643, 655 (1961) (“[A]ll evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court.”).

Here, there was a direct and un-attenuated “but-for” causal connection between the constitutional violation (the illegal search and the illegal seizure and the failure to knock and announce) and the acquisition of evidence in this case.  Here, the constitutional violation of failing to knock and announce and the subsequent illegal peering through Stephanatos’ window was the reason the evidence was recovered.  The evidence was also obtained pursuant to a void writ of possession.  Therefore, here we have both an unconstitutional search (the peering through the side door window, after the failure to knock and announce) and an illegal justification for the search and seizure (which was constitutionally invalid because it was an illegal eviction based on a void writ).

Furthermore, the causal connection between the sheriff officer misconduct (the execution of a void ab initio writ, the failure to knock and announce and the illegal peering through the side door window) and seizing of the evidence was not attenuated at all.  See Hudson, 547 U.S. at 592-94; see also Wong Sun v. United States, 371 U.S. 471, 484-85 (1963) (holding that verbal evidence seized in violation of an unlawful entry and arrest is considered “‘fruits’ of the agents’ unlawful action” and therefore must be suppressed under the exclusionary rule).

Here, the state court’s “adjudication” (or lack thereof) of the federal claim resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal Law, as determined by the Supreme Court of the United States.

In addition, state court’s adjudication of the claim resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings, such as the void ab initio writ and the illegal peering through Stephanatos’ windows to search inside his home.

In summary, Petitioner does not have a plain and adequate remedy at law in the state court to redress any possible illegality in the arrest and incidental search and seizure, because the state courts (both trial and appellate) have denied his requests for an evidentiary hearing as is evidenced by the attached orders denying petitioner’s requests for review of the federal questions involved.  The facts of the case prove beyond any doubt the widespread bad faith, harassment and the longest-running state criminal proceedings in New Jersey for assault charges and the refusal of the state courts to guard Stephanatos’ Fourth and Fourteenth Amendment federal rights, including the refusal to perform an evidentiary hearing to ascertain the legality of the search.  Therefore, coupled with the intentional violation of Stephanatos’ speedy trial rights, Petitioner succeeds in satisfying both the Younger standards, as well the Anti-Injunction Act requirements.

b.    THE COURT MUST ENJOIN THE STATE COURT ACTION TO AID THE COURT’S JURISDICTION AND EFFECTUATE THE COURT’S JUDGMENTS

“Courts in the Third Circuit have found that an injunction of a pending state court action pending arbitration falls under the ‘necessary in aid of its jurisdiction’ exception, because the injunction is necessary to aid the court's exercise of its jurisdiction over the petition to compel arbitration.” JPMorgan Chase & Co. v. Custer, 2016 U.S. Dist. LEXIS 31595, at *23 (D.N.J. March 10, 2016) (“Permitting Respondent to proceed in state court could potentially ‘eviscerate the arbitration process and make it a hollow formality, with needless expense to all concerned.’”(citations omitted)); see also Ace Am. Ins. Co. v. Guerriero, Civil Action No. 2:17-cv-00820, 2017 U.S. Dist. LEXIS 135891, at *29 (D.N.J. Aug. 24, 2017) (same).

c.    Re-litigation Exception

The “to protect or effectuate its judgments” exception is also known as the “re-litigation exception.”  In re Diet Drugs II, 369 F.3d at 305. As explained by the Supreme Court, “[t]he re-litigation exception was designed to permit a federal court to prevent state litigation of an issue that previously was presented to and decided by the federal court. It is founded in the well-recognized concepts of res judicata and collateral estoppel.” Chick Kam Choo v. Exxon Corp., 486 U.S. 140, 147 (1988).

Furthermore, recognizing the AIA’s ‘protect or effectuate its judgments’ exception “was designed to permit a federal court to prevent state litigation of an issue that previously was presented to and decided by the federal court,” courts in the Third Circuit have also enjoined duplicative state court proceeding pending the outcome of the federal proceedings. Id. at *29-30 (enjoining state court proceedings after compelling its claims to arbitration in order to prevent relitigation of the claims); see also Home Buyers Warranty Corp. v. Jones, No. 15-mc-324-RGA-MPT, 2016 U.S. Dist. LEXIS 80363, at *8 (D. Del. June 21, 2016) (affirming the Magistrate Judges order to enjoin state court proceedings; “This Court has authority to issue an injunction to stay the state court proceedings where an injunction is necessary ‘to protect or effectuate [the Court's] judgments.’”) (quoting 28 U.S.C. § 2283)).

Accordingly, because Stephanatos requires the Court to adjudicate Stephanatos’ federal claims regarding the unreasonable search and seizure and the fabrication of evidence, the Court should also issue an order enjoining the state criminal proceedings, as these issues will be decided by the federal court.  Here, permitting the state criminal proceedings to proceed without addressing the illegal search and seizure and the violation of the Fourth and Fourteenth Amendment rights of Stephanatos by his accusers, will frustrate the federal judgment and also cause a relitigation of the claims.

Thus, an order granting a TRO and a preliminary injunction of the State Court Action is necessary in order to aid this Court’s jurisdiction and to protect or effectuate its judgment (i.e., to avoid re-litigation of federal civil rights issues).

THE COURT SHOULD GRANT A TEMPORARY RESTRAINING ORDER

After determining that it has jurisdiction and positive authority, the Court should proceed to grant a temporary restraining order enjoining the Passaic County Prosecutor from proceeding with the criminal trial on January 22, 2019 in Bergen County, New Jersey.

The Third Circuit considers four factors in determining whether to grant a temporary restraining order: “(1) whether the movant has a reasonable probability of success on the merits; (2) whether the movant will be irreparably harmed by denying the injunction; (3) whether there will be greater harm to the nonmoving party if the injunction is granted; and (4) whether granting the injunction is in the public interest.” Highmark, Inc. v. UPMC Health Plan, Inc., 276 F.3d 160, 170–71 (3d Cir. 2001) (upholding grant of preliminary injunction).

These factors interrelate on a sliding scale and must be balanced against each other. See Serono Labs, Inc. v. Shalala, 158 F.3d 1313, 1318 (D.C. Cir. 1998). “If the arguments for one factor are particularly strong, an injunction may issue even if the arguments in other areas are rather weak.” CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 746 (D.C. Cir. 1995). In this case, the balance of factors tips decidedly towards Dr. Stephanatos.

These factors weigh decidedly in favor of a temporary restraining order in this case. Petitioner faces tremendous risk of bad faith, malicious prosecution, due process violations, yet the government would experience no material burden if required to provide Stephanatos with the basic due process right to have the courts fully adjudicate his claims of unlawful search and seizure and the performance of a pre-trial evidentiary hearing.

A.   Petitioner is Likely to Succeed on the Merits of His Claim that the Sheriff Officers Performed an Unlawful Search and Seizure and Violated Due Process.

First, Petitioner is likely to succeed on the merits of his claims that the Passaic County Sheriff, armed with a void writ of possession and M16 riffles came and searched Stephanatos’ home and then claimed they were assaulted as a pretext to force him out of his home.  The sheriff officers then conspired and fabricated a number of conflicting stories to tell and write so that they maliciously prosecute Stephanatos for almost 8 long years.  Now that Stephanatos has provided ample evidence (i.e., met his burden of proof) that the sheriff officers lied and fabricated an assault that never happened, the Passaic County prosecutor(s) do not want to perform a pre-trial evidentiary hearing in violation not only of federal due process but even of their own state laws.  See State v. Atwood, supra.

The Fifth Amendment Due Process Clause guarantees fair procedures prior to any deprivation of life, liberty, or property, including removal from the United States. “The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (internal quotation and citation omitted). By seeking to try Petitioner before he has a meaningful opportunity to make a case for why the evidence against him was the result of an unconstitutional search and seizure and must be suppressed, Respondents would deprive Petitioner of an opportunity to be heard on matters that directly threaten his liberty—a plain violation of the Due Process Clause.  To show to this Court how biased and prejudiced the state courts are towards Stephanatos, the trial judge called Stephanatos’ request for a Due Process evidentiary hearing a “fishing expedition”.  This statement by the trial court is not only proof of bad faith, but an anathema to the proper administration of criminal justice.

B.   Petitioner Will Suffer Irreparable Harm Absent a Temporary Restraining Order

Second, Petitioner faces the imminent prospect of severe and irreparable injury in the absence of a temporary restraining order. To establish irreparable harm, a movant must demonstrate that the potential harm cannot be redressed by a legal or equitable remedy alone. Campbell Soup Co. v. ConAgra, Inc., 977 F.2d 86, 91 (3d Cir. 1992).

Possible “bad faith” persecution constitutes irreparable harm sufficient to justify injunctive relief against trial without the opportunity to move to address the illegal search and seizure claims and the Due Process violations and the void writ evidence.

C.   Respondents Would Not Suffer Greater Harm From a Temporary Restraining Order.

The third factor is “whether there will be greater harm to the nonmoving party if the injunction is granted” Highmark, Inc., 276 F.3d at 170–71. This factor plainly weighs in favor of granting an injunction. Whatever minor inconvenience the government might suffer as a result of a delaying trial, that inconvenience pales in comparison to the threat to Petitioner’s lives and liberty should he trial using the wrong constitutional standards and erroneous and prejudiced rulings by the trial court and by admitting evidence that should have been clearly suppressed.

As discussed here and in the Amended Complaint sets forth in greater detail, Petitioner is exemplary member of his community and poses no threat whatsoever. Dr. Stephanatos holds BS, Masters and PhD degrees in civil engineering and environmental engineering, is a licensed professional engineer in many states and also holds a JD degree.  He has not been able to obtain his law license and become a patent attorney because of the events of June 28, 2011 and because of the violation of his speedy trial rights.  Dr. Stephanatos came to Unites States in 1982 on a student visa to study at the University of Illinois at Urbana-Champaign, is a naturalized U.S. citizen since 1992 and in his 61 years of life on this earth he has no criminal record and has not been accused of any violent crime, other than that fateful day on June 28, 2011.  His only “crime” according to the Defendants is that he was questioning the taxes that his property was over assessed in violation of the Uniformity Clause of the state Constitution.  But he had the right to petition the government to redress grievances.  Yet, the Defendants have been using his exercise of his First Amendment Right against him.

By contrast, injunctive relief would “not materially impinge on the state’s interest,” particularly given “the significant passage of time and the abrupt manner” of the enforcement action. See, e.g., Chhoen v. Marin, No. 17 Civ. 1898, 2018 WL 566821 at *11 (C.D. Cal. Jan. 25, 2018). In the instant case, the Passaic County prosecutor can hardly claim that it all of a sudden has an urgent need to try this peaceful, law-abiding citizen using bad faith, illegally-seized evidence, void writ and fabricated evidence.  As the Devitri v. Cronen, No. 17 Civ. 11842, slip op., ECF No. 90 (D. Mass. Feb. 1, 2018) (“Devitri Prelim. Inj. Dec.”). court held: “A brief delay in unlawful deportation of residents who have lived here with Government permission for over a decade outweighs the public interest in prompt execution of removal orders, where Petitioners have been law-abiding and pose no threat to public safety.” Devitri Prelim. Inj. Dec. at 21.

D.   Granting a Temporary Restraining Order Is in the Public Interest.

Finally, the last factor, “whether granting the injunction is in the public interest,” also weighs in favor of a temporary restraining order. Id. For the same reason it is difficult to articulate a serious harm to the state caused by staying trial for a reasonable period of time, it is hard to see why a stay would be against public interest. First, as discussed, Petitioner is law abiding members of his community and had consistently complied with all the state’s directions pursuant to his bail while waiting trial for the last 8 years. He poses no risk to his community.

As an independent matter, and as held in the most recent Devitri decision, there is a strong public interest in ensuring that the due process rights of citizens are actually afforded.

For each of these reasons, independently and cumulatively, there is a strong public interest in granting a stay of trial so that Petitioner can be afforded his due process rights, including a pre-trial evidentiary hearing under Franks v Delaware, 438 US 154 (1978), State v. Atwood, supra, and adjudication of his 42 USC Section 1983 civil rights lawsuit..

Because all four factors under the Third Circuit’s framework weigh in favor of Petitioner, the Court should grant Petitioner’s motion for a temporary restraining order.

CONCLUSION

Stephanatos will prove to this Court and to the state trial court that any and all evidence procured by the Passaic County Sheriff was the result of unlawful search and seizure, including fraudulent information provided in the affidavit prior to obtaining a search warrant.  By failing to include in the Affidavit that the ex-parte writ was void ab initio and the ex-parte judgment for possession was also void, and by failing to indicate that the evidence was collected pursuant to an illegal search of Stephanatos’ home, the Affidavit submitted in support of the issuance of the search warrant contained misrepresentations and fabrications with reckless disregard for the truth, and material omissions of essential facts; and the search was unreasonable because the sheriff officers were peering through the side window of the Stephanatos’ residence.

For the reasons stated above, the Court should grant Stephanatos’ motion for a temporary restraining order and issue an order to show cause, allowing full briefing and argument while the TRO remains in effect, as to why a preliminary injunction enjoining the Passaic County Prosecutor should not issue.

Dated: January 8, 2019                   Respectfully Submitted,

___________________________________

Basilis N. Stephanatos, PhD, PE, JD

Pro Se

CERTIFICATION OF BASILIS N. STEPHANATOS

I hereby certify under penalty of perjury that the foregoing facts and statements made by me are true and correct to my own knowledge, except as to those matters set forth therein upon information and belief, and as to those matters, I believe them to be true.  I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment. NJ Court Rule R. 1:4-4(b); 28 U.S.C. §1746.

Dated: January 8, 2019                   Respectfully Submitted,

___________________________________

Basilis N. Stephanatos, PhD, PE, JD

Pro Se

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[1] Stephanatos alleges that this is exactly what the sheriff officers did: After Stephanatos failed to respond to the door bell, Lucas placed his face onto the side door window and started peering inside Stephanatos’ home.  He then claimed he was assaulted based on the evidence he observed or he believed he observed through his illegal peering.

[2] The ATF Defendants willfully and corruptly intended to enter into a criminal and fraudulent transaction through the anti-trust and RICO conspiracies using the USPS mail system and the wire transfer services to transfer money between the various states where they operate: from New Jersey to/from Florida, New York, etc..  The existence of the civil and criminal conspiracy against the Plaintiff and thousands of New Jersey homeowners was determined and confirmed by the federal judge Michael A. Shipp in the federal antitrust case IN RE NEW JERSEY TAX SALES CERTIFICATES ANTITRUST LITIGATION, Master Docket No. 3:12-CV-01893-MAS-TJB  (see http://www.njtaxliensettlements.com/

 and by the conviction of at least 15 individuals and entities in New Jersey, including Passaic County, by the U.S. Attorney’s Office (See https://www.fbi.gov/newark/press-releases/2014/former-new-york-tax-liens-investment-company-executive-pleads-guilty-to-role-in-bid-rigging-scheme-at-municipal-tax-lien-auctions.

[3] Id. amend. V; id. amend XIV, § 1; see also Thomas S. Schrock & Robert C. Welsh, Up from Calandra: The Exclusionary Rule as a Constitutional Requirement, 59 MINN. L. REV. 251, 343, 362–64 (1974) (arguing in part that the Due Process Clause establishes a right “to a fair prosecution, or to constitutional conduct by the government in its entire criminal proceeding,” id. at 343, including collection of evidence).

[4] See Rochin v. California, 342 U.S. 165, 174 (1952) (suppressing evidence obtained from stomach pumping under the Due Process Clause);

[5] E.g., United States v. Leon, 468 U.S. 897, 932–33 (1984) (Brennan, J., dissenting); United States v. Calandra, 414 U.S. 338, 360 (1974) (Brennan, J., dissenting) (“[T]he exclusionary rule is ‘part and parcel of the Fourth Amendment’s limitation upon [governmental] encroachment of individual privacy.’” (alteration in original) (quoting Mapp v. Ohio, 367 U.S. 643, 651 (1961))); Mapp, 367 U.S. at 655 (holding that “the Fourth Amendment included the exclusion of the evidence seized in violation of its provisions”).

[6] For other scholarship in this vein, see Nadia B. Soree’s Whose Fourth Amendment and Does It Matter? A Due Process Approach to Fourth Amendment Standing, 46 IND. L. REV. 753, 791 (2013) (drawing on due process to criticize Fourth Amendment “standing” doctrine). See also Lane V. Sunderland, The Exclusionary Rule: A Requirement of Constitutional Principle, 69 J. CRIM. L. & CRIMINOLOGY 141, 154 (1978) (arguing that due process bars “substantial” violations of constitutional procedures); James Boyd White, Comment, Forgotten Points in the “Exclusionary Rule” Debate, 81 MICH. L. REV. 1273, 1280 (1983) (positing that “due process — if it is to mean anything at all — means that the state must comply with its own law when it seeks to prosecute the citizen”); cf. infra p. 1911 and note 241 (critically discussing Soree’s and Sunderland’s papers).