On October 5, 2020, William & Mary Law School’s Appellate and Supreme Court Clinic, led by Womble Bond Dickinson attorney, Dwayne D. Sam, filed a Petition for Writ of Certiorari in the Supreme Court of the United States on behalf of Michael Elder.  Mr. Elder’s petition presents two issues: (1) whether the Second Circuit violated the party presentation principle by affirming the district court’s denial of Mr. Elder’s motion to suppress on the basis of a waived issue that neither party briefed or raised below; and (2) whether evidence must be suppressed when it is found during a suspicionless search of a federal supervisee’s home, and the officer conducting the search knew that at least reasonable suspicion was required but deliberately disregarded that requirement and conducted the search anyway.

The case stems from events in 2016, when nine federal officials conducted a warrantless and suspicionless search of Mr. Elder’s home.  As a result of the illegal search, officers discovered drugs and drug paraphernalia.  Mr. Elder moved to suppress the evidence at trial, but the district court denied his motion.  Importantly, the government argued only the merits of the search and did not challenge whether the exclusionary rule should apply.  On appeal, the Second Circuit affirmed the district court and concluded that, even assuming the officers knowingly violated Mr. Elder’s Fourth Amendment rights by conducting an illegal and suspicionless home search, the exclusionary rule did not apply because such action was not the kind of “flagrant or abusive” misconduct sufficient to warrant exclusion.  And despite chiding the government for not raising the exclusionary rule issue in the district court or on appeal, the Second Circuit affirmed Mr. Elder’s conviction—based solely on that issue—without giving him an opportunity to address it.

The Second Circuit’s holding conflicts with the Supreme Court’s recent decision in United States v. Sineneng-Smith, in which the Court firmly reaffirmed the party presentation principle—the judicial tenet that courts are passive instruments of government that must wait for cases to come to them and decide only questions presented by the parties.  Moreover, the Second Circuit’s decision all but abrogates the Fourth Amendment in the federal supervisee context.  By sanctioning suspicionless searches of federal supervisees without their consent, the Second Circuit effectively stripped supervisees of any Fourth Amendment protection.  

Clinic students Alexander Steiger and William Spotswood assisted in drafting Mr. Elder’s petition under the supervision of Dwayne D. Sam, the Clinic’s managing attorney and co-director.