No IN THE SUPREME COURT OF THE UNITED STATES. JAMES T. OLIVER, Petitioner, STATE OF CLINTONIA, Respondent,

Transcription

1 No IN THE SUPREME COURT OF THE UNITED STATES JAMES T. OLIVER, Petitioner, v. STATE OF CLINTONIA, Respondent, On Writ of Certiorari To The Supreme Court of Clintonia For the Fifteenth Judicial Circuit BRIEF OF RESPONDENT Team Q Counsel for Respondent

2 QUESTIONS PRESENTED I. Whether the rational basis test is based on the legitimacy of the governmental interest at the time of the enactment of a state law or at the time of the challenge to the state law, and is Clint. Stat. rationally related to a legitimate government interest. II. Whether the nine images recovered from Petitioner s USB drive are admissible under the Fourth Amendment or, whether United States v. Jacobsen, 466 U.S. 109 (1984), has been abrogated by United States v. Jones, 565 U.S. 400 (2012), and if so, are the images admissible under the good faith exception to the exclusionary rule. i

3 Table of Contents QUESTIONS PRESENTED... i CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED... 1 STATEMENT OF THE CASE... 1 i. Statutory and Regulatory Background... 1 i. Procedural History... 3 STATEMENT OF JURISDICTION... 4 SUMMARY OF THE ARGUMENT... 4 i. Rational Basis Review... 4 ii. Fourth Amendment... 6 ARGUMENT... 7 I. CLINTONIA STATUTE SATISFIES RATIONAL BASIS REVIEW BECAUSE THE STATUTE WAS RATIONALLY RELATED TO LEGITIMATE GOVERNMENT INTERESTS AT THE TIME OF ENACTMENT AND MUST BE UPHELD BECAUSE THERE ARE REASONABLY CONCEIVABLE FACTS THAT COULD PROVIDE A RATIONAL BASIS FOR THE CLASSIFICATION A. Petitioner has not met his burden of proof to demonstrate that Clintonia s interest in consumer protection, public health and economic protectionism are illegitimate or that statute is not rationally related to those interests because there are reasonably conceivable facts that provide a rational basis for the classification B. It is neither necessary nor appropriate for the Supreme Court to determine whether it was reasonable for the legislature to believe challenged classification would promote consumer protection, public health and safety and economic protectionism II. THE NINE IMAGES RECOVERED FROM PETITIONER S USB DRIVE ARE ADMISSIBLE UNDER THE FOURTH AMENDMENT BECAUSE THEY WERE DISCOVERED DURING A PRIVATE SEARCH, AND THE OFFICER VIEWING THEM DID NOT EXCEED THE SCOPE OF THE PRIVATE SEARCH A. The Petitioner s expectation of privacy was frustrated by the private search, which gave the government the right to conduct their own investigation that did not exceed the scope of the original search since it did not enable them to learn more than what was discovered during the private search B. Even if Private Jones s search exceeded the scope of the private search, the Petitioner did not manifest a subject expectation of privacy in the USB drive and its contents that society would recognize as reasonable CONCLUSION ii

4 Table of Authorities United States Supreme Court Cases California v. Ciraolo, 476 U.S. 207 (1986), FCC v. Beach Communications, 508 U.S. 307 (1993)... 4, 5 Ferguson v. Skrupa, 372 U.S. 726 (1963) Heller v. Doe, 509 U.S. 312 (1993)... 5, 11, 12, 13 Katz v. United States, 389 U.S. 357, (1967)... 6, 20, 23 Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456 (1981)... 5, 8, 9, 10 Rakas v. Illinois, 439 U.S. 128 (1978)... 21, 22 Sullivan v. Stroop, 496 U.S. 478 (1990)... 4 United States v. Carolene Prod. Co., 304 U.S. 144 (1938)... 8 United States v. Chadwick, 433 U.S. 1 (1977)... 21, 22, 23 United States v. Jacobsen, 466 U.S. 109 (1984)... 6, 15, 16, 18, 19, 20, 21 Vance v. Bradley, 440 U.S. 93 (1979)... 8 W. & S. Life Ins. Co. v. State Bd. Of Equalization, 451 U.S. 648 (1981)... 7, 10, 13, 14 Walter v. United States, 447 U.S. 649 (1980)... 6, 15, 16, 17 Weinberger v. Wiesenfeld, 420 U.S. 636 (1975)... 13, 14 Constitutional Provisions U.S. Const. amend. IV... 1, 15 U.S. Const. amend XIV... 1, 6, 7 Statues 18 USCS 2252A U.S.C Cal. Ins. Code Clint. Stat.... 1, 2, 3, 6, 9, 12 Circuit Court Case Murillo v. Bambrick, 681 F.2d 898 (3d Cir. 1982)... 8 United States v. Runyan, 275 F.3d 449 (5th Cir. 2001)... 17, 18 Other Beach Commc'ns, Inc. v. FCC, 959 F.2d 975 (1992) iii

5 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The Fourteenth Amendment of the United States Constitution establishes the Equal Protection Clause which states that no state shall deny to any person within its jurisdiction the equal protection of the laws, but does not prevent states from making reasonable classifications among such persons. U.S. Const. amend XIV. The Fourth Amendment of the United States Constitution establishes the right of people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated. U.S. Const. amend. IV Clint. Stat. states that No resident of Clintonia may, without a proper license under the Clintonia Funeral Directors and Embalmers Act (FDEA), sell a time-of-need casket for use in a funeral within the state of Clintonia. A violation of this section is a first-degree misdemeanor and punishable by up to one year in prison and a $1,000 fine. This section only applies to wholly intrastate transactions Clint. Stat. STATEMENT OF THE CASE i. Statutory and Regulatory Background In 2012, Petitioner, James Oliver (Petitioner) left the St. Michael s Abbey in Sandersburg, and began selling plain wooden caskets from his home. R. at 5. Petitioner created a website, and sold caskets for both intrastate and out of state funerals. Id. In 2013, retired FBI Special Agent Bruce Walker (Walker) was making funeral arrangements for his mother, when we discovered Petitioner s website. R. at 6. Walker purchased a casket from Petitioner for $1,000. While Walker was expressing his appreciation to Petitioner for the casket, Petitioner admitted that he did not have a license to sell caskets. Id. Petitioner informed Walker that there was a criminal statute that required a license to sell caskets. Id. Petitioner 1

6 further admitted that he kept a fake license on [his person] just in case... and a printable version in a USB on [his] nightstand. Id. The FDEA forbids anyone from engaging in an intrastate sale of a time-of-need casket without being licensed as a funeral director. R. at 3. Unlicensed sale of a casket in Clintonia is a first-degree misdemeanor, punishable by up to one year in prison and a $1,000 fine. Id. n.6. The FDEA established the Board of Funeral Directors and Embalmers (Board) that has the exclusive power to promulgate license requirements. Id. In order to get a license, the prospective licensees must either complete one year of accredited course work at a mortuary school and then two years of apprenticeship with a licensed funeral director, or complete three years of an apprenticeship. R. at 4. In 1956, the Clintonia legislature amended the FDEA and added Clint. Stat. to criminalize intrastate casket transactions without a license. Id. During a debate on the amendment, Senator Jerome Gaines, the chief sponsor of the amendment and a third generation mortician turned to a 1955 study that said, at least 10% of unlicensed retail casket sellers took advantage of customers by selling caskets that did not meet FDEA standards. R. at 5. In 2011 the study was found to be baseless. Id. The next day, Walker went to confront Petitioner at his house about Petitioner s disregard for the law. R. at 6. When Walker got to the house, no car was in the driveway, and when he knocked on the front door, it swung inward. Id. Walker called out to see if Petitioner was home, and got no response. Id. On the nightstand in Petitioner s bedroom, Walker found a USB drive with an inscription that said, Dup. License/Fun! Id. Walker took the USB drive and plugged it into his computer. Id. When he plugged it in, he found that it contained two folders, DL and F. Id. Walker selected folder F, which contained approximately 100 randomly 2

7 numbered subfolders. R. at 7. He chose the first subfolder and it had eleven JPEG files numbered Id. The file titles revealed no indication of what the files contained. Id. When Walker selected one of the files, he found what appeared to be a young minor, around the age of Walker s daughter, engaged in sexual activity with an adult. Id. Walker immediately took the USB drive to the Sandersburg police department. Id. He talked to officer Private Rookie Jones (Private Jones), and relayed how he found the drive and what he found on it. Id. Private Jones plugged in the USB drive, and Walker guided him to the correct folder and subfolder, then indicated to the files saying, it s one of those before walking away. Id. Walker could not bear to look at the image again as his daughter had been a recent victim of molestation. Id. at n.14. Private Jones looked at the JPEG images 1-10, and each one contained an image of potential child pornography, except image 10, which contained a printable copy of Oliver s fake license. Id. Private Jones did not open the last file, and turned the USB drive over to his superiors, informing them that a private citizen turned it in after finding child pornography on it. Id. i. Procedural History After his indictment, the Petitioner made a motion to dismiss Count One on a Fourteenth Amendment ground and Counts Three through Eleven on Fourth Amendment grounds in the Circuit Court of the Fifteenth Judicial Circuit. R. at 15. Both parties jointly moved to stay the proceedings in order to provide the Clintonia legislature with an opportunity to review the FDEA and R. at 3. On November 6, 2014, the legislature repealed both the FDEA s license requirements as applied to time-of-need casket sellers and Id. However, this action did not apply retrospectively to provide relief for the Petitioner regarding his criminal 3

8 case. Id. After a hearing held on January 16, 2015, the Circuit Court granted the Petitioner s motion to dismiss. R. at 2. The State of Clintonia properly filed an appeal in the Supreme Court of Clintonia challenging the Circuit Court s decision to grant the Petitioner s motion to dismiss. R. at 17. The court ruled that the Circuit Court had erred in its judgement and analysis of the issues presented in the motion to dismiss, and reversed the decision and remanded it for trial R. at 18 and 25. Certiorari was granted to address the issues of Fourth and Fourteenth Amendment violations. R. at 26. STATEMENT OF JURISDICTION The judgment of the Supreme Court of Clintonia was entered on October 29, 2016 after Respondents properly appealed the Circuit Court of the Fifteenth Judicial Circuit s decision in favor of Petitioner. Petitioner then filed a Petition for a Writ of Certiorari to the Supreme Court of the United States on November 10, 2016, which was granted on June 30, The jurisdiction of this Court rests on 28 U.S.C SUMMARY OF THE ARGUMENT i. Rational Basis Review In determining the constitutionality of a statute, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. See Sullivan v. Stroop, 496 U.S. 478, 485 (1990). On rational basis review, a classification subject to rational basis review has a strong presumption of validity. FCC v. Beach Communications, 508 U.S. 307, 314 (1993). When attacking the rationality of a statute, the challenger is faced with the burden to negative every 4

9 conceivable basis which might support it Id. at 315. The Court never require[s] a legislature to articulate its reasons for enacting a statute and it is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature. Id. Moreover, a legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data. See Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464 (1981). First, Clintonia has an interest in licensing residents in order to sell time-of-need caskets and the law prohibiting the sale of a time-of-need casket for use in a funeral without a proper license under the FDEA is clearly related to that interest. Although the legislature does not require a state to articulate their reasons for enacting a statute, Clintonia has offered three reasonable justifications for enacting the statute: consumer protection, public health and economic protectionism. Second, in order for Petitioner to attack the rationality of the statute, Petitioner must successfully negative every conceivable basis which might support it. FCC, 508 U.S. at 315. Petitioner is incapable of meeting this requirement. The only evidence Petitioner offers to discredit the statute is that a study showing the percentage of unlicensed casket sellers conducted at the time the statute was enacted was found to be invalid sixty years later. R. at 9. Although the study was invalidated, a classification does not fail rational basis review simply because it was not made with mathematical nicety or because in practice it results in some inequity. Heller v. Doe, 509 U.S. 312, 321 (1993). Since Petitioner cannot show that Clintonia s reasoning was wholly irrelevant to the achievement of Clintonia s objectives, the statue must satisfy rational basis review. 5

10 For these reasons, satisfies rational basis review and does not violate the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. ii. Fourth Amendment The Fourth Amendment protects people and their houses, papers and effects against unreasonable searches and seizures by governmental authorities. U.S. Const. amend. IV. However, the Fourth Amendment does not apply to searches or seizures executed by private parties. Walter v. United States, 447 U.S. 649, 662 (1980) (Blackmun, J., dissenting). After a person s right to privacy has been frustrated by a private search, the government can execute the same search so long as it remains in the scope of the original private search. United States v. Jacobsen, 466 U.S. 109, 113 (1984). Additionally, a Fourth Amendment analysis includes a twopart test: (1) an individual manifestation of a subjective expectation of privacy in the object of the challenged search; and (2) society s willingness to recognize the expectation as reasonable. Katz v. United States, 389 U.S. 357, 360 (1967). Firstly, Private Jones s search did not exceed the scope of Walker s private search. Walker opening the file in the subfolder frustrated the Petitioner s expectation of privacy in the contents of the subfolder. The container rule established in Jacobsen prevents officers from violating Fourth Amendment rights every time they find a new item in a container that they private searcher did not find first. Also, Private Jones s investigation did not yield any new information that he had not gotten from Walker s statement. Secondly, the Petitioner failed to meet the requirements under the two-part Katz test. He failed to manifest a subjective expectation of privacy when he not only disclosed his illegal activity to Walker, but also neglected to lock his house or secure the USB drive. For these same reasons, it is unlikely that society would consider his expectation of privacy reasonable. Finally, 6

11 the Petitioner cannot have a legitimate expectation of privacy in the nine images because Congress has criminalized the possession of child pornography. For the aforementioned reasons, the use of the nine images from the challenged search do not violate the Petitioner s Fourth Amendment rights. ARGUMENT I. CLINTONIA STATUTE SATISFIES RATIONAL BASIS REVIEW BECAUSE THE STATUTE WAS RATIONALLY RELATED TO LEGITIMATE GOVERNMENT INTERESTS AT THE TIME OF ENACTMENT AND MUST BE UPHELD BECAUSE THERE ARE REASONABLY CONCEIVABLE FACTS THAT COULD PROVIDE A RATIONAL BASIS FOR THE CLASSIFICATION. The Fourteenth Amendment of the United States Constitution establishes the Equal Protection Clause which states that no state shall deny to any person within its jurisdiction the equal protection of the laws, but does not prevent the states from making reasonable classifications among such persons. W. & S. Life Ins. Co. v. State Bd. Of Equalization, 451 U.S. 648, 677 (1981). U.S. Const. amend. XIV. The Equal Protection Clause is triggered where persons similarly situated are treated differently. The Equal Protection Clause is not violated if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose. Id. The legislature is not required to actually articulate at any time the purpose or rationale supporting its classification, however, a classification must be upheld against equal protection challenges if there is any reasonably conceivable statement of facts that could provide a rational basis for the classification. Id. A statutory classification fails rational basis review only when it rests on grounds wholly irrelevant to the achievement of the state s objective. Id. The constitutionality of a statute, valid on its face, may be attacked when the challenger successfully proves facts tending to show that the statute as applied to a particular article is 7

12 without support in reason because the statute is so different from others of the class as to be without the reason for prohibition, though the effect of such proof depends on the relevant circumstances of each case. See United States v. Carolene Prod. Co., 304 U.S. 144, 153 (1938). Such inquiries where the legislative act is drawn into question must be restricted to the issue whether any statement of facts either known or which could reasonably be assumed affords for it. Id. In Minnesota v. Clover Leaf Creamery Co., the Court explicitly stated that [w]here there was evidence before the legislature reasonably supporting the classification, litigants may not procure invalidation of the legislation merely by tendering evidence in the court that the legislature was mistaken. 449 U.S. at 464 (1981). In determining whether a challenged classification is rationally related to achievement of a legitimate state purpose, the Court must answer two questions: (1) Does the challenged legislation have a legitimate purpose? and (2) Was it reasonable for the lawmakers to believe that the use of the challenged classification would promote that purpose? See Minnesota, 449 U.S. at ; Vance v. Bradley, 440 U.S. 93, (1979). Accordingly, all that is required in either instance whether at the time of enactment or at the time of oversight is that the legislature act reasonably. Murillo v. Bambrick, 681 F.2d 898, 906 (3d Cir. 1982). Although parties challenging legislation under the Equal Protection Clause may introduce evidence supporting their claim that the statue is irrational, they cannot prevail so long as it is evident from all the considerations presented to the legislature... that the question is at least debatable. Id. Where there was evidence before the legislature reasonably supporting the classification, litigants may not procure invalidation of the legislation merely by tendering evidence in court that the legislature was mistaken. Id. 8

13 Minnesota gives the lower courts guidance when analyzing cases involving challenged classifications. In Minnesota, the controversy was centered in on the narrow issue of whether the legislative classification between plastic and nonplastic, nonreturnable milk containers was rationally related to achievement of conservation. Minnesota, 449 U.S. at 471. The State identified four reasons why the classification was rationally related to the statutory purpose of conservation and the court noted that [i]f any one of the four substantiates the State s claim, [the Court] must reverse the Minnesota Supreme Court and sustain the Act. Id. The Court ultimately held that because there was evidence formed at the time the statute was enacted which reasonably supported the classification, litigants could not invalidate the statute simply by showing evidence in court that the legislature had been mistaken. Id. Here, the Court must determine whether the purposes identified by the Clintonia legislature at the time of the enactment of reasonably supported the classification. It is very clear that the FDEA s license provisions and criminal enforcement of the provisions served a legitimate government interest when the FDEA was amended to include the intrastate casket sales in R. at 21. A study was conducted prior to the enactment of the statute that found that at least 10% of unlicensed retail casket sellers were taking advantage of consumers by selling caskets which did not meet the standards prescribed by the FDEA. R. at 5. Clintonia presents three reasons which the legislature could have reasonably relied on when enacting this legislation. First, Clintonia has a legitimate need to protect their citizens from purchasing caskets created by someone without a license which did not adhere to the FDEA requirements. R. at 21. Second, another purpose of the licensing requirement was to try and eliminate the possible spread of bacteria or communicable diseases from a decomposing body not buried in a properly made casket. Id. This concern related directly to promoting health and 9

14 safety in Clintonia, which is a legitimate government interest. Last, Clintonia had a legitimate interest in protecting licensed casket vendors because the fraudulent caskets sold for such a low price that would be very attractive to a buyer. R. at 22. A. Petitioner has not met his burden of proof to demonstrate that Clintonia s interest in consumer protection, public health and economic protectionism are illegitimate or that statute is not rationally related to those interests because there are reasonably conceivable facts that provide a rational basis for the classification. In an equal protection analysis, the United States Supreme Court will assume that the objectives articulated by a legislature are the actual purposes of the statute, unless an examination of the circumstances forces the Court to conclude that they could not have been a goal of the legislation. Clover Leaf Creamery Co., 449 U.S. at 464. States are not required to convince the courts of the correctness of their legislative judgments. Rather, those challenging a legislative judgment must convince the court that the legislative facts on which the classification is apparently based could not be reasonably conceived to be true by the governmental decision maker. Id. Although parties challenging legislation under the Equal Protection Clause of the Fourteenth Amendment may introduce evidence supporting their claim that a statute is irrational, they cannot prevail so long as it is evident from all considerations presented to the legislature, and those of which judicial notice may be taken, that the question is at least debatable. W. & S. Life Ins. Co. v. State Bd. of Equalization, 451 U.S. 648, 674 (1981). Where there was evidence before the legislature reasonably supporting the classification, litigants may not procure invalidation of the legislation merely by tendering evidence in court that the legislature was mistaken. Minnesota, 449 U.S. at 464. It is up to legislatures, not courts, to decide on the wisdom and utility of the legislation. Ferguson v. Skrupa, 372 U.S. 726, 729 (1963). 10

15 A classification does not fail rational-basis review simply because it was not made with mathematical nicety or because in practice it results in some inequity. Heller, 509 U.S. at 314. A statutory classification fails rational-basis review only when it rests on grounds wholly irrelevant to the achievement of the state s objective. Id. In Heller, the Court found that because the State s reasoning was not wholly irrelevant to the achievement of the State s objective, the statute survives rational-basis review. Id. In the case at hand, Petitioner presented into evidence a study conducted in 1955 showing at least 10% of unlicensed retail casket sellers took advantage of consumers by selling caskets which did not meet the standards prescribed by the FDEA. R. at 4. Petitioner also presented that although this study was reasonably relied upon in passing the act, the study was later found to have incorrect information and that the casket standards were later repealed. Id. Although that information may have impacted the ultimate decision to repeal the standards 60 years later, that not enough to satisfy the heavy burden of proving that Clintonia s reasoning was not rationally related to the interest at the time the act was passed. In fact, Clintonia has shown that the study was reasonably conceived to be true by the governmental decisionmaker at the time of enactment. The mere fact that the statute was enacted shows that Clintonia s legitimate interest in protecting its citizens from unlicensed retail casket vendors was reasonably relied on by the legislature. Under Heller s reasoning, all Clintonia must do to satisfy rational basis review is to show that the casket licensure requirements are not wholly irrelevant from their purposes of consumer protection, public health and economic protectionism Even further, Clintonia is not required to prove the mathematical accuracy of the study. Rather, Petitioner must convince the Court that the legislative facts on which the classification is apparently based could not 11

16 reasonably be conceived as true by the governmental decisionmaker. Petitioner is simply incapable of making this argument. Even if the facts of the study were later found to be incorrect, Clintonia relied on this study and presented three very legitimate interests associated with the enactment of this statute. First, prohibiting the sale of caskets from unlicensed vendors is very relevant to protecting Clintonia s citizens from falling victim to fraudulent sales during a time when they are most vulnerable. R. at 21. At the very least, this statute will deter the action because it is punishable by jail time and a fine. Next, Clintonia has a legitimate interest in promoting the health and safety of its citizens. It was reasonable for Clintonia to conclude that if a casket did not adhere to the proper guidelines, bacteria and other diseases could spread from a decomposing body. Id. Last, Clintonia reasonably concluded that the enactment of this statute would protect licensed funeral directors from intrastate competition. R. at survives rational basis review because Clintonia s interest in consumer protection, public health and economic protectionism are legitimate state interests. Further, the facts that Clintonia based its reasoning off of were reasonably conceived to be true at the time of the enactment. Because Petitioner has not met his burden of proof to show that the grounds in which Clintonia relied upon when enacting the legislation were not wholly irrelevant to the achievement of the state s objective, satisfies rational basis review. B. It is neither necessary nor appropriate for the Supreme Court to determine whether it was reasonable for the legislature to believe challenged classification would promote consumer protection, public health and safety and economic protectionism. Rational-basis review in equal protection analysis in not a license for courts to judge the wisdom, fairness, or logic of legislative choices. Heller, 509 U.S. at 314. It does not allow the 12

17 judiciary to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines Id. Classifications which do not involve fundamental rights and do not proceed along suspect lines are accorded a strong presumption of validity. Id. In Beach Communications v. FCC, the Court explained that if there were any conceivable state of facts that could provide a rational basis for a challenged law, the law will survive rational basis review. 959 F.2d 975, 979 (1992). The Court never requires a legislature to articulate its reasons for enacting a statute. Id. It is entirely irrelevant whether the conceived reason for the challenged distinction motivated the legislation. Id. Thus, the government has no obligation to produce evidence in support of those rationalizations. Heller, 509 U.S. at 320. In an equal protection analysis, the Court will assume that the objectives articulated by the legislature are the actual purposes of the statute unless an examination of the circumstances forces the Court to conclude that the purpose of the legislation could not have been a goal of the legislation. See Weinberger v. Wiesenfeld, 420 U.S. 636, 648 (1975). In W. & S. Life Ins. Co., appellant insurer sought review of the denial of appellant s petition for rehearing by the California Supreme Court of a judgment that held that appellee, State Board of Equalization of California did not have to refund retaliatory insurance taxes paid by appellant under Cal. Ins. Code 685 because the tax was constitutional. 451 U.S. 648 (1981). In W. & S. Life Ins. Co., the Court rejected the appellant s argument under the Equal Protection Clause of the Fourteenth Amendment because the legislation had the legitimate purpose of influencing other states to drop their retaliatory taxes, and it was reasonable that the classification would promote that purpose. Id. The Court held that the California legislature 13

18 rationally could have believed that the retaliatory tax would promote that purpose and that it was immaterial whether in fact the tax would accomplish its objectives. Id. In the case at hand, the Court is required to assume that the objectives articulated by Clintonia at the time of enactment are the actual purposes of the statute, unless an examination of the circumstances forces the Court to conclude that they could not have been a goal of the legislation. See Weinberger, 420 U.S. at 648. Petitioner argues that the reason for the enactment of the statute was only to protect already wealthy casket vendors from losing money to these fraudulent scams. R. at 4. However, since the Court never requires a legislature to articulate its reasons for enacting a statute, it is entirely irrelevant whether the conceived reason for the challenged distinction truly motivated the legislation. Petitioner is unable to show that Clintonia s reasoning could not have been the goal of the legislation therefore, the Court must assume that consumer protection, public health and economic protectionism are the actual purposes that motivated the legislation. It is not enough for Petitioner to say that the results of the study provoking Clintonia s reasoning were mistaken. Petitioner has failed to provide any circumstances which would force the court to conclude that the objectives articulated by the legislature at the time of enactment were not the actual purposes of the statute. Therefore, it is neither necessary nor appropriate for the Supreme Court to determine whether it was reasonable for the legislature to believe the challenged classification would promote consumer protection, public health or economic protectionism. 14

19 II. THE NINE IMAGES RECOVERED FROM PETITIONER S USB DRIVE ARE ADMISSIBLE UNDER THE FOURTH AMENDMENT BECAUSE THEY WERE DISCOVERED DURING A PRIVATE SEARCH, AND THE OFFICER VIEWING THEM DID NOT EXCEED THE SCOPE OF THE PRIVATE SEARCH. The Fourth Amendment of the United States Constitution establishes that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated U.S. Const. amend. IV. A search is when an expectation of privacy that society is prepared to consider reasonable is infringed. Jacobsen, 466 U.S. at 113. A seizure occurs when there is some meaningful interference with an individual's possessory interests in that property. Id. The protections of the Fourth Amendment only extend to governmental actions. Id. This means the Fourth Amendment does not protect against a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official. Walter, 447 U.S. at 662 (Blackmun, J., dissenting). When conducting a Fourth Amendment analysis, it is essential to determine whether the defendant has a constitutionally protected reasonable expectation of privacy. California v. Ciraolo, 476 U.S. 207, 211 (1986) (quoting Katz, 389 U.S. at 360 (1967) (Harlan, J., concurring)). This is done through a two-part inquiry: (1) has the individual manifested a subjective expectation of privacy in the object of the challenged search; and (2) is society willing to recognize that expectation as reasonable. Id. A. The Petitioner s expectation of privacy was frustrated by the private search, which gave the government the right to conduct their own investigation that did not exceed the scope of the original search since it did not enable them to learn more than what was discovered during the private search. An individual s constitutional right to an expectation of privacy is frustrated by searches conducted by a private party. Jacobsen, 446 U.S. at 117. This court has held that [o]nce frustration of the original expectation of privacy occurs, the Fourth Amendment does not prohibit 15

20 governmental use of the now nonprivate information. Id. However, the Fourth Amendment will apply to any information gathered to which the expectation of privacy has not already been frustrated. Id. Additional invasions of the individual s privacy by the government must be tested by the degree to which they exceeded the scope of the private search. Id. at 115. If additional invasion occurs, this Court has held that reasonableness is assessed by the Court balancing the nature and quality of the intrusion on the individual s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion. Id. (quoting United States v. Place, 462 U.S. 696, 703 (1983)). United States v. Jacobsen is the paramount case used by lower courts to guide their analysis in cases involving questions of expectation of privacy violations by the government exceeding the scope of a private search. In Jacobsen, the defendants were expecting a package that contained cocaine to be delivered by a private freight carrier. 466 U.S. at 111. The package was damaged during transit and the carrier opened the package to see if the contents had been damaged as well. Id. When the carrier discovered tubes suspiciously wrapped in duct tape containing a white power, they contacted federal agents. Id. The white powder tested positive as cocaine during a field test conducted by the federal agents. Id. The Jacobsen Court held that the agent s visual inspection of [the plastic bags from the tube] contents enabled the agent to learn nothing that had not previously been learned during the private search. Id. at 120. Conversely, United States v. Walter presented an instance in which this Court held the government had exceeded the scope of a private search violating the defendants Fourth Amendment rights. In this case, packages containing films depicting homosexual activities were shipped to the wrong address. Walter, 447 U.S The recipients opened the packages and examined the boxes which had suggestive descriptions of the contents. Id. at 652. The Federal 16

21 Bureau of Investigations (FBI) was contacted, and along with the recipients the FBI agents viewed the films. Id. The Walter court held that the government exceeded the scope of the private search when they viewed the films without a warrant. Id. at 657. The court said that prior to the Government screening, one could only draw inferences about what was on the films and that the cartons were securely wrapped and sealed, with no labels or markings to indicate the character of their contents. Id. at 658. Thus, the Court held the private search merely frustrated that expectation in part... [and] did not simply strip the remaining unfrustrated portion. Id. at 659. United States v. Runyan is a Fifth Circuit case that relied heavily on Jacobsen and Walter in its analysis of the government s search of contraband taken from the defendant during a private search of the defendant s property. 275 F.3d 449, 452 (5 th Cir. 2001). Runyan s ex-wife went onto his property to retrieve some of her belongings. Id. at 453. While there she discovered Runyan had child pornography in his possession. Id. at 453. She turned over all items containing child pornography to the authorities, who subsequently viewed all the material before obtaining a warrant. In its review, the Runyan court said that Jacobsen directs courts to inquire whether the government learned something from the police search that it could not have learned from the private searcher's testimony and, if so, whether the defendant had a legitimate expectation of privacy in that information. Id. at 461, citing Jacobsen, 466 U.S. at The court also determined that the police exceed the scope of a prior private search when they examine a closed container that was not opened by the private searchers unless the police are already substantially certain of what is inside that container based on the statements of the private searchers, their replication of the private search, and their expertise. 17

22 Id. at 463. The court accordingly held that any files viewed on the privately searched disks that were not viewed by the ex-wife did not exceed the scope of the private search. Id. at 465. Here, the Court will need to determine what was in the scope of the private search in order to rule on whether Private Jones s investigation violated the Petitioner s Fourth Amendment rights. On Petitioner s USB drive, Walker found an image of a young minor... engaged in sexual activity with an adult. R. at 7. While Walker could not recall the exact file he selected to view the pornographic image, he could direct Private Jones to the correct folder and subfolder in which he found the file. R. at 6-7. The Jacobsen court established the container rule for determining what could be included in the scope of a private search. The Court held that the warrantless seizure of a package is reasonable where the government agents have already learned a great deal about the contents of the package from the carrier s employees. Jacobsen, 466 U.S. at 121. In its application of Jacobsen, the Runyan court said, an individual s expectation of privacy in the contents of a container has already been compromised if that container was opened and examined by private searchers. 275 F.3d at 465. This rule prevents governmental agents from violating the Fourth Amendment every time they find something inside an open container that the private searcher did not find. See Id. In this case, the container would be the subfolder that contained the nine files in question. It could not be Folder F because Folder F contained approximately 100 randomly numbered subfolders, and within those subfolders countless other files. R. at 7. It would not be reasonable for the scope of the private search to include such a large scale of content. Rather each subfolder is considered a container, much like the tubes in Jacobsen and the boxes in Walter. Walker did not know exactly what he was looking at when opened the subfolder, but when he opened the file, he frustrated the Petitioner s expectation of privacy in the contents of 18

23 the whole subfolder. Similarly, in Jacobsen, the carrier s employees did not know what they were looking at when they opened the package and saw the tubes wrapped in duct tape, but when they opened one of the tubes they frustrated the defendants expectation of privacy in the contents of the tube. This case differs from Walter because the recipients of the package never viewed any of the films before contacting the FBI, thus the defendants expectation of privacy in the contents of the packages were not frustrated to allow the viewing of the films without a warrant. The officers in Runyan exceeded the scope of the private search because they viewed the entire collection of material turned over by the private searcher. However, the Court held that the expectation of privacy in the files on the disks viewed by the private searcher had been effectively frustrated. Since, Walker not only opened the subfolder, but also viewed on of the files in the folder, this court should find that the Petitioner s expectation of privacy in the contents of the subfolder was frustrated and subject to the warrantless search. The Petitioner will argue that Walker could not later recount the specifics of the image he viewed, and that Walker was biased by his personal feelings due to his daughter s molestation case. R. at 7. However, this argument fails under Jacobsen because the Court held that when physical and visual inspection of the tube occurred the advantage... gained thereby was merely avoiding the risk of a flaw in the employees recollection, rather than in further infringing respondents privacy. 466 U.S. at 119. The same applies in this case, Private Jones s inspection worked more to avoid the risk of a flaw in Walker s recollection of what he saw. Private Jones s action ensured that if Walker was wrong in his interpretation of the image, there would be no further damage to the Petitioner s right to privacy. An additional test of whether the scope of the private search was exceeded is to determine if the police learned something new from their search that they were not aware of from 19

24 the private searcher s statement. Here, Private Jones knew that there was child pornography in the subfolder from Walker s testimony. Private Jones s search of the nine files in question did not tell him something that he did not already know. Similarly, the Jacobsen federal agents did not learn anything from their investigation that they did not hear from the private searchers. This differs from Walter and Runyan because the Walter recipients did not view any of the films, and Runyan s ex-wife had not examined all of the content she seized from Runyan s property. Therefore, in both Walter and Runyan, the governmental agents learned something that they did not learn from the private searchers. The Petitioner will argue that Private Jones did not know how much child pornography was in the subfolder, and how this new knowledge is equivalent to the testing of the white powder in Jacobsen. The removal of a trace amount of the white powder for the field test in Jacobsen was determined to have only a de minimis impact on any protected property interest Id. at 125. Here knowledge of the amount of child pornography could only have a de minimis impact on any expectation of privacy. The fact that Private Jones s investigation did not provide him with more information than what he learned from Walker, further establishes that his search did not exceed the scope of Walker s private search. B. Even if Private Jones s search exceeded the scope of the private search, the Petitioner did not manifest a subject expectation of privacy in the USB drive and its contents that society would recognize as reasonable. A reasonable expectation of privacy is comprised of a two-part inquiry established in Katz v. United States: (1) individual manifestation of a subjective expectation of privacy in the object of the challenge; and (2) society is willing to recognize that expectation as reasonable. 389 U.S. at 360. The court has not established a definitive way to determine society s recognition of the expectation of privacy, however this court typically considers the totality of the 20

25 circumstances and analyzes the situation on an objective basis. See generally Rakas v. Illinois, 439 U.S. 128, 153 (1978). The Katz Court held that [the] capacity to claim the protection of the Fourth Amendment depends not upon a property right in the invaded place but upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place. Id. at 143, citing Katz, 389 U.S. at 353. In Jacobsen, the Court said that since the field test on the white powder could reveal only one fact previously unknown to the agent, they needed to determine if it was a search violating the Fourth Amendment. 466 U.S. at 122. The court applied the Katz test in their analysis to determine if the defendants had a reasonable expectation of privacy. Id. The Court determined that [a] chemical test that merely discloses whether or not a particular substance is cocaine does not compromise any legitimate interest in privacy. Id. at 123. In determining the legitimacy of the privacy interest, the Court held that Congress has decided... to treat the interest in privately possessing cocaine as illegitimate. Id. In United States v. Chadwick, Amtrak railroad officials grew suspicious of the defendants because of the heaviness of the footlocker they were carrying, and that it was leaking talcum powder, a substance often used to mask the odor of marijuana or hashish. 433 U.S. 1, 3 (1977). Amtrak had federal narcotic agents on site when the defendant train arrived in Boston two days later. Id. The agents lawfully arrested the defendants, then proceeded to open and search the defendants locked footlocker without a warrant and seized marijuana from it. Id. at 4. Under the Katz test, the Court held that by putting personal property into a double locked footlocker, the defendants manifested an expectation that the contents would remain free from public examination. No less than one who locks the doors of his home against intruders Id. at 11. The Court further held that [l]uggage contents are not open to public view... nor is luggage subject 21

26 to regular inspections and official scrutiny on a continuing basis. Id. at 13. The intended primary function of luggage is to be a repository of personal effects. Id. Rakas v. Illinois presented a different issue of whether the defendants could assert a Fourth Amendment claim for violations of expectation of privacy in a car they did not own solely because they were legitimately on the premises. 439 U.S. at 151. After hearing a robbery reported, police stopped a suspected getaway car, which the owner was driving and the defendants were passengers. Id. at A search of the vehicle yielded a sawed-off rifle under the front passenger seat and rifle shells in the glove compartment, and the defendants were taken into custody. Id. Neither of the defendants owned the car and they did not claim ownership of the rifle or shells seized during the search. Id. at 129. After applying the Katz test, the court found that the defendants had asserted neither a property nor possessory interest in the automobile searched. Id. at Thus, the defendants had no standing to assert a Fourth Amendment violation in the search of the car. Id. at 150. Firstly, in this case, the Petitioner did not manifest a subjective expectation of privacy in the USB drive. He voluntarily told Walker, who was practically a stranger to the Petitioner, where the drive was in his house and what could be found on the drive. Additionally, the house was unlocked. Walker knocked on the door and it swung open, and he found the USB drive out in the open on the night table. R. at 5. The Chadwick court noted that when a homeowner locks their homes it is with intent to protect their belongings from intruders as a manifestation of an expectation of privacy. 433 U.S. at 11. Generally, the best way to show that someone wants their personal property to remain private is to lock it away or not keep it out in the open. Unlike Jacobsen and Chadwick, where the defendants made reasonable attempts to manifest their expectation of privacy by packaging and locking up their property, the Petitioner does nothing, 22

27 not even locking his front door, to indicate that he had a subjective expectation of privacy. Rather the Petitioner s behavior is similar to the defendants in Rakas, who failed to assert any property or possessory interest in the alleged protected space. The Petitioner s failure to secure the USB drive showed his lack of concern in asserting any of his rights to privacy. Therefore, he fails the first part of the Katz test. The second part of the Katz test inquires whether society is willing to recognize the defendant s expectation as reasonable. 389 U.S. at 360. In this case, society would not consider the Petitioner s expectation reasonable. The Chadwick Court found that society would reasonably expect their luggage to be protected by their privacy rights because luggage is a repository of personal effects. 433 U.S. at 13. The same could be said for a home like in this case, however, they differ because the Chadwick luggage was locked and secure, while the Petitioner s house was neither locked or secure. The Petitioner will likely argue that he had an expectation of privacy in the house and the USB drive because he is the owner of both, and as the owner he can choose how he secures his interest in his property. While this is true, his interest should be manifested in a manner that will allow others to be aware of that interest in protecting his right to privacy. Otherwise he cannot reasonably expect the others to respect or uphold his right. In Jacobsen, the court held that there could not a be a legitimate interest in the white powder because Congress does not consider an interest in privately possessing cocaine as legitimate. The same applies in this case, Congress deems an interest in privately possessing child pornography as illegitimate. This is seen through Congress passing legislation criminalizing an action that furthers the production and distribution of child pornography. See 18 USCS 2252A. Therefore, Oliver also fails the second part of the Katz test, and the Court should 23