In The Supreme Court of the United States

Transcription

1 Team No. 4 In The Supreme Court of the United States Robert Black, v. Petitioner, State of Jensen, Respondent. On Writ of Certiorari to the Supreme Court of the United States Brief for the Respondent Team No. 4 Counsel for the Respondent

2 TABLE OF CONTENTS TABLE OF AUTHORITIES...iii QUESTIONS PRESENTED... vii STATEMENT OF JURISDICTION...viii STATEMENT OF THE FACTS... 1 SUMMARY OF THE ARGUMENT... 4 ARGUMENT... 7 I. The Thirteenth Circuit correctly upheld the state s recovery and reconstruction of the shredded documents from an unlocked third-party contractor s receptacle because the documents were abandoned property not subject to a reasonable expectation of privacy, and because the method of reconstruction of the documents is permissible under the Fourth Amendment... 7 A. The DEA did not violate Petitioner s Fourth Amendment rights because there is no constitutionally protected privacy interest in documents discarded as trash, outside of the curtilage of the home, that society is prepared to recognize as reasonable The shredding of garbage does not create a reasonable heightened expectation of privacy under the Fourth Amendment The mere hiring of a third party document disposal company does not create a reasonable heightened expectation of privacy under the Fourth Amendment...12 i

3 B. The DEA did not violate Petitioner s Fourth Amendment rights by using character recognition software to reconstruct the shredded documents because the usage of technology to enhance the abilities of law enforcement officers is permitted when conducting a proper warrantless search...14 II. No Sixth Amendment violations are implicated because Petitioner can assert no evidence of counsel error or prejudicial effect as required by Strickland...16 A. Petitioner can assert no actual conflict that would prove that counsel s performance was deficient...17 B. Petitioner s claim also fails because he can identify no acts or omissions by Frazier as prejudice that would have changed the outcome of his trial...19 C. Even if a conflict of interest arose, the District Court was within its discretion to find no Sixth Amendment violation existed...22 CONCLUSION...23 ii

4 TABLE OF AUTHORITIES United States Supreme Court Cases California v. Ciraolo 476 U.S. 207 (1986)... 9 California v. Greenwood 486 U.S. 35 (1988)...7,9,10 California v. Krivda 409 U.S. 33 (1972)...10 Culyer v. Sullivan 446 U.S. 335 (1980)...passim Donovan v. Dewey 452 U.S. 594 (1981)... 9 Dow Chem. Co. v. United States 476 U.S. 227 (1986)... 14,15 Dukes v. Warden Conn. State Prison 406 U.S. 250 (1972)...17 Florida v. Jardines 133 S. Ct (2013)... 8 Florida v. Riley 488 U.S. 445 (1989)...11 Holloway v. Arkansas 435 U.S. 475 (1978)... 16,20,21 Katz v. United States 389 U.S. 347 (1967)... 7,9,10 Mickens v. Taylor 535 U.S. 162 (2002)...16,20 Oliver v. United States 466 U.S. 170 (1984) iii

5 Payton v. New York 445 U.S. 573 (1980)...9 Rakas v. Illinois 439 U.S. 128 (1978)...9 Rawlings v. Kentucky 448 U.S. 98 (1980) Smith v. Maryland 442 U.S. 735 (1979)... 9,12 Strickland v. Washington 466 U.S. 668 (1984)...16,17,20 United States v. Cronic 446 U.S. 648 (1984)...passim United States v. Jones 132 S. Ct. 945 (2012)...8 United States v. Knotts 460 U.S. 276 (1983)...14,15 Wheat v. United States 486 U.S. 153 (1988) Wyoming v. Houghton 526 U.S. 295 (1999)...9 United States Court of Appeals Cases Theodore v. New Hampshire 614 F.2d 817 (1st Cir. 1980) United States v. Cofield 272 F.3d 1303 (11th Cir. 2001) United States v. Crowder 588 F.3d 929 (7th Cir. 2009) United States v. DiCarlo 575 F.2d 957 (1978) iv

6 United States v. Donatelli 484 F.2d 505 (1st Cir. 1973) United States v. Hearst 638 F.2d 1190 (9th Cir. 1981)...17,18 United States v. Jeffers 520 F.2d 1256 (7th Cir. 1975)...20,21 United States v. Mustone 469 F.2d 970 (1st Cir. 1972)... 8 United States v. Reicherter 647 F.2d 397 (3d Cir. 1981)...10 United States v. Scott 975 F.2d 927 (1st Cir. 1992)... passim United States v. Villarreal 963 F.2d 770 (5th Cir.1992)...13 United States v. Winchester 916 F.2d 601 (11th Cir.1990)...13 Zurita v. United States 410 F.2d 477 (7th. Cir. 1969)...18 District Court Cases United States v. Camiel 518 F.Supp 1246 (E.D.Pa. 1981)...21 State Supreme Court Cases Commonwealth v. Copenhefer 526 Pa. 555 (Pa. 1991)... 14,15 People v. Krivda 5 Cal.3d 357 (Cal. 1971)...10 State v. Petrone 161 Wis.2d 530 (Wis. 1991)...14 v

7 Statutes and Treatises U.S. Const. amend. IV... 7 U.S. Const. amend. VI U.S.C.A (1)... viii Sup. Ct. R viii Other Authorities Adrian Chen, Unshreddable, How to Reassemble a Shredded Document, Slate, (July )...15 Douglas Heingartner, Picking Up the Pieces, N.Y. Times, July 17, Wayne R. LaFave, Criminal Procedure (5th ed. 2009)...17 Wayne R. LaFave, The Robinson Dilemma, 1974 Sup. Ct. Rev. 127 (1974)...12 Give Your Stuff Away Day: Unclutter Your Life On September, The Huffington Post (Sep. 24, :22 AM)...10 vi

8 QUESTIONS PRESENTED 1. Did the U.S. Court of Appeals for the Thirteenth Circuit correctly determine that the recovery and reconstruction of shredded documents from an unlocked third-party contractor s receptacle on a public street did not violate the original owner s rights under the Fourth Amendment, when that receptacle is easily accessed by the public and not located within the curtilage of a home? 2. Did the U.S. Court of Appeals for the Thirteenth Circuit correctly determine that the secret conspiratorial criminal activity and subsequent indictment of trial counsel with an unindicted co-conspirator of his client did not give rise to a conflict of interest such that it deprived the client of his Sixth Amendment right to counsel at trial? vii

9 STATEMENT OF JURISDICTION This appeal originates from a timely petition to the Supreme Court of the United States for a writ of certiorari. A judgment was entered in this criminal case against the petitioner by the U.S. District Court for the District of Jensen in August 2012, and an appeal was timely filed with the U.S. Court of Appeals for the Thirteenth Circuit, who affirmed the ruling of the district court. Under the rules the Supreme Court, a petition for certiorari must be filed within ninety days of the entering of a judgment pursuant to Sup. Ct. R. 13. The Supreme Court of the United States has jurisdiction over this case pursuant to 28 U.S.C.A (1), which provides that the Supreme Court may review cases in the courts of appeals by writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decr viii

10 STATEMENT OF THE FACTS In the spring of 2011, the Drug Enforcement Administration ( DEA ) began investigating what was believed to be a high-volume, industrial-level methamphetamine manufacturing operation in the suburbs of the state of Jensen s capital city. Record ( R. ) at 1. The DEA had increased its investigative efforts in Jensen due to a significant growth in illegal drug manufacturing and distribution within the state. R. at 1. The investigation was led by DEA agent Frank Schroder ( Schroder ) who believed that a local business owner Robert Black ( Black ) was running a methamphetamine lab and using his asbestos and lead paint abatement business, A&L Abatement ( A&L ), as a front for the methamphetamine operation. R. at 1. Agent Schroder and his team set up surveillance on Black and A&L believing that Black was using A&L to purchase the equipment and chemicals needed to manufacture methamphetamine. R. at 1. On July 6, 2011, Agent Schroder witnessed Black wheel out a large blue garbage container, with the words Paper Fortress, Inc. out of one of the garage bays at A&L to the curb of the public street in front of the building. R. at 1. A few minutes later, Black returned with a cardboard box and dumped what appeared to be a load of shredded paper into the container. R. at 1-2. Black then locked the A&L building and went home. R. at 2. Agent Schroder approached the blue garbage container and noticed that it had a hinged lid but with no lock. R. at 2. He opened it and found a pile of shredded documents, as well as intact documents within the container. R. at 2. Agent Schroder and members of his team transferred the contents of the container to the DEA field office for review. R. at 2. Shortly thereafter, a large box truck with the Paper Fortress logo on it pulled up in front of A&L, and when the employees noticed 1

11 that the blue container was empty, they drove away. R. at 2. Later that evening, Agent Schroder and his team were able to reconstruct the shredded documents by using scanning and characterrecognition software. R. at 2. The documents revealed various purchase orders and invoices for various pieces of laboratory equipment and chemicals that are commonly used to operate a methamphetamine lab. R. at 2-3. Agent Schroder used this information to obtain a search warrant for A&L s offices. R. at 3. During the search of A&L s offices, DEA agents found numerous pieces of incriminating evidence against Black and several of his employees. R. at 3. This evidence, along with the reconstructed documents, led the DEA to one of Black s other businesses where they found a large methamphetamine operation and large quantities of several important ingredients for manufacturing methamphetamine. R. at 3. In August 2011, Black was charged with numerous violations of the Federal Controlled Substances Act ( FCSA ). R. at 3. Before trial, Black s defense counsel Larry Frazier ( Frazier ) filed numerous motions, including one to suppress the evidence obtained as a result of the search, seizure and reconstruction of the shredded documents from the Paper Fortress claiming the seizure violated Black s Fourth Amendment rights under the United States Constitution. R. at 3. At the hearing on the motion to suppress, Frazier called a representative of Paper Fortress to the stand and testified that Paper Fortress was a document storage and disposal company specializing in the secure disposal of sensitive personal and business documents. R. at 3. She also testified that Paper Fortress offers a variety of levels of security services at varying price points. R. at 3. Basic low level security service consists of a basic recycling pickup whereas the higher level security services include such things as locked disposal containers, secure shredding and 2

12 incineration. R. at 3. She testified that Black contracted for a basic service that only provided for a weekly pickup of one plastic, wheeled container worth of documents, as long as the documents were inside the provided container. R. at 4. She also testified that she offered Black several higher levels of security services including: in-office document pickup instead of curbside pickup, a lockable and secure document container, as well as a secure shredding and incineration service instead of basic recycling. R. at 4. She informed Black that under his service plan the documents would be sent to a state-run paper-recycling facility, but stated that Black seemed unconcerned about where his papers were sent after they were picked up. R. at 4. The district court subsequently denied the motion to suppress and in August 2012, Black was tried before a federal jury and convicted of all charges. R. at 4. Ten days after his conviction, Black, assisted by new counsel, entered a motion for a new trial with the district court, under Rule 33(b)(2), alleging that his Sixth Amendment rights had been violated. R. at 5. He claimed his trial attorney was subsequently indicted for laundering the money of an unindicted co-conspirator Jefferson Redman ( Redman ) and therefore a conflict of interest had existed preventing Frazier from fulfilling Black s right to adequate representation. R. at 5. Black claims that he had no knowledge of Frazier and Redman s relationship until they were indicted. R. at 5. The district court ruled against the motion stating: [A]lthough the circumstances surrounding Mr. Frazier s departure from this case are certainly unusual and troubling, this Court does not find the existence of a clear conflict of interest as it relates to this case and the specific representation of Mr. Black by Mr. Frazier. Quite the contrary, if I accept Mr. Cohen s proffer of facts, which I do for the record, it seems that Mr. Black and Mr. Frazier s interests were quite perfectly aligned. Furthermore, the fact that there does not seem to be any reason to believe that Mr. Frazier was even aware that he was about to be indicted when he was trying this case, further degrades the argument of the Defendant that he was not afforded adequate representation. 3

13 R. at 6. Black timely appealed to the U.S. Court of Appeals for the Thirteenth Circuit on both the Fourth and Sixth Amendment issues. R. at 6. The court upheld Black s conviction holding that the documents recovered by the DEA were abandoned property as any garbage would have been and not subject to a reasonable expectation of property, and also that Black was not subject to a conflict of interest as he had the benefit of competent counsel of his choosing at his trial. R. at 6. Thereafter, Black timely petitioned the United States Supreme Court for a writ of certiorari which was granted on both the Fourth Amendment and Sixth Amendment issues. R. at 7. SUMMARY OF THE ARGUMENT I. Fourth Amendment The DEA did not deprive the Petitioner of his Fourth Amendment rights by recovering shredded documents placed in a receptacle at the curb of a public street in front of a commercial building. Fourth Amendment protections have never been applied to trash that is located outside of the curtilage of the home. While the Fourth Amendment protects people from unreasonable searches and seizures, there must be an expectation of privacy that society is prepared to recognize as reasonable. This standard is premised on the concept that legitimate governmental interests must be balanced against the degree to which a search intrudes upon an individual's privacy interests. However, courts have been reluctant to give much weight to an individual s privacy interests in trash. Likewise, commercial property has been given even less privacy protection than the property of an individual. Furthermore, the shredding of discarded documents does not extend a heightened expectation of privacy. While shredding may add an additional superficial layer of secrecy, 4

14 leaving the fractured remnants in a public area accessible to unknown third parties defeats any claim to a legitimate expectation of privacy. Abandonment of property does not have to be explicit, but can be inferred from acts, words, and other objective facts. The documents that were collected by the DEA were sitting at a curb despite efforts by the document collection company to convince the Petitioner that additional security measures were needed. Numerous courts have repeatedly rejected the notion of granting a reasonable expectation of privacy interest in unsuccessful attempts to keep private activity secret in areas accessible to the public or in public view. With the proliferation of public access to document reconstruction methods, there can be no legitimate expectation of privacy in shredded documents left at a public curb. The Fourth Amendment does not simply protect a subjective expectation of privacy; that expectation must be one in which society is willing to accept as reasonable. Thus, the Thirteenth Circuit Court of Appeals correctly held that the Petitioner s Fourth Amendment rights were not violated by the DEA s recovery and reconstruction of the shredded documents. II. Sixth Amendment The Thirteenth Circuit correctly held that no Sixth Amendment rights were violated. Courts must be highly deferential to counsel s conduct during a trial, including any tactical decisions he may make before or during the trial. This Court has held that a violation of a defendant s right to counsel occurs when there is an actual, tangible conflict and when this conflict prejudices the outcome of the trial. This conflict cannot be speculative, the defendant must be able to actually show the court that a conflict of interest existed at the time of the trial. 5

15 Similarly, the defendant must be able to provide evidence that this conflict of interest adversely affected the outcome of the trial. Here, Petitioner can assert no tangible evidence that his counsel during his initial trial had any actual conflict of interest. While his counsel was subsequently indicted for crimes related to Petitioner s charges, during the trial counsel had no knowledge of the charges that would give rise to a conflict of interest. Counsel vehemently filed motions and argued to suppress damning evidence in his pre-trial motions. There are no facts to suggest that counsel s representation was inadequate or any conflict of interest existed that would have given rise to any actual conflict of interest. Furthermore, Petitioner is unable to submit to this Court any tangible evidence that any alleged conflict of interest adversely affected his trial. Petitioner was given a fair trial and was subsequently convicted on all charges. Nothing in the record suggests that different counsel would change the outcome of the case. Therefore, this Court should affirm the Thirteenth Circuit s ruling that Petitioner was adequately represented and no Sixth Amendment violation was implicated. 6

16 ARGUMENT I. The Thirteenth Circuit correctly upheld the state s recovery and reconstruction of the shredded documents from an unlocked third-party contractor s receptacle because the documents were abandoned property not subject to a reasonable expectation of privacy, and because the method of reconstruction of the documents is permissible under the Fourth Amendment. The Thirteenth Circuit Court of Appeals correctly affirmed the district court s ruling to deny Petitioner s motion to suppress shredded documents, collected by the DEA, because he had no reasonable expectation of privacy in the documents. The Fourth Amendment of the federal Constitution provides that, [t]he 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. This Court has long held that when deciding whether a person has a constitutionally protected right to privacy, there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as reasonable. Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring). This Court has applied the Katz standard to trash, concluding that a warrantless search and seizure of garbage outside the curtilage of the home does not violate the Fourth Amendment because society would not accept as reasonable respondents' claim to an expectation of privacy in trash left for collection in an area accessible to the public. California v. Greenwood, 486 U.S. 35, (1988). In recent jurisprudence, this Court has reaffirmed a property baseline in Fourth Amendment cases in addition to the Katz reasonable expectations test, The Katz reasonableexpectations test has been added to, not substituted for, the traditional property-based 7

17 understanding of the Fourth Amendment. Florida v. Jardines, 133 S. Ct. 1409, 1417 (2013) (citing United States v. Jones, 132 S. Ct. 945, (2012)). Therefore, whenever persons, houses, papers, and effects are involved in a search or seizure, an analysis of whether or not there was a physical intrusion into a constitutionally protected area must be made before the Katz test needs to be applied. See Jones, 132 S. Ct In Jones, this Court held that the placing of a GPS tracking device on a car possessed by the defendant violated his Fourth Amendment protections. Id. at 954. The Jones majority stressed the fact that the car was still in the possession of and being operated by the defendant at the time the tracker was placed and differentiated cases where the owner did not have a possessory interest in the effect when the governmental intrusion occurred. Id. at 952. The First Circuit Court dealt with the issue of whether or not there was a property interest in papers placed as trash at a curb holding that a person who places trash at a curb to be disposed of or destroyed by a third person abandons it because [i]mplicit in the concept of abandonment is a renunciation of any reasonable expectation of privacy in the property abandoned. United States v. Scott, 975 F.2d 927, 929 (1st Cir. 1992) (quoting United States v. Mustone, 469 F.2d 970, 972 (1st Cir. 1972)). In the present case, the Thirteenth Circuit also held that the shredded documents collected by the DEA were abandoned property and therefore not subject to a reasonable expectation of privacy. R. at 6. Additionally, the usage of scanning and optical character recognition software by the DEA to reconstruct the shredded documents did not infringe upon a Fourth Amendment right of the Petitioner. It is well settled that [l]aw enforcement officials are entitled to apply human ingenuity and scientific advances to collect freely available evidence from the public domain. Scott, 975 F.2d at 930. Additionally, the Supreme Court has upheld the utilization of police technology to assist in an investigation, where there is no warrant, in cases where the defendant 8

18 does not have a constitutionally protected property interest. See, e.g., Smith v. Maryland, 442 U.S. 735 (1979) (upholding the usage of a pen register to document phone numbers dialed by the defendant), see also Katz 389 U.S. at 347 (upholding the usage of electronic listening and recording device to the outside of a public telephone booth). A. The DEA did not violate Petitioner s Fourth Amendment rights because there is no constitutionally protected privacy interest in documents discarded as trash, outside of the curtilage of the home, that society is prepared to recognize as reasonable. The Fourth Amendment does not prohibit the warrantless search and seizure of garbage left for collection outside the curtilage of a home. See Greenwood, 486 U.S. at 41. The focus under a Fourth Amendment analysis is whether the government's action intrudes upon a person s legitimate expectation of privacy. California v. Ciraolo, 476 U.S. 207, 212 (1986). This is consistent with the Court s balancing of legitimate governmental interests against the degree to which a search intrudes upon an individual's privacy in cases where a warrant is not required for a search. Wyoming v. Houghton, 526 U.S. 295, 300 (1999). There are many factors that may be considered when determining whether an individual legitimately may make a claim under the Fourth Amendment that a place should be free of government intrusion not authorized by warrant. Rakas v. Illinois, 439 U.S. 128, (1978) (Powell, J., concurring). A strong factor considered by courts has been the societal understanding that certain areas deserve the most scrupulous protection from government invasion whereas others do not. Payton v. New York, 445 U.S. 573, 100 (1980). This Court has given greater latitude to conduct warrantless inspections of commercial property because the expectation of privacy that the owner of commercial property enjoys in such property differs significantly from the sanctity accorded an individual's home. Donovan v. Dewey, 452 U.S. 594, (1981). In upholding the 9

19 warrantless search of garbage, courts have correctly concluded that there is no legitimate expectation of privacy in garbage left for the express purpose of having strangers take [them].... United States v. Reicherter, 647 F.2d 397, 399 (3d Cir. 1981). In Greenwood, this Court applied the Katz test and found that a warrantless search conducted by police officers, of garbage bags left at the curb outside of the Greenwood residence, did not violate Fourth Amendment protections because of the extent to which the garbage was exposed to the public. Greenwood, 486 U.S. at 41. This Court has noted that the curb of a public street is an area particularly suited for public inspection and, in a manner of speaking, public consumption. Reicherter, 647 F.2d at 399. It is also not uncommon for children, vagrants, and trash collectors to rummage through one s trash barrels and remove some of its contents. 1 People v. Krivda, 5 Cal.3d 357, 367 (Cal. 1971) vacated, California v. Krivda 409 U.S. 33, remanded to 8 Cal.3d 623 (Cal. 1973). In the present case, the shredded documents collected by the DEA were located in an unlocked garbage container on the curb of a public street. R. at 1. Thus, the Thirteenth Circuit correctly affirmed the district court s determination that the Petitioner did not have a reasonable expectation of privacy in his trash. 1. The shredding of garbage does not create a reasonable heightened expectation of privacy under the Fourth Amendment The Fourth Amendment does not prohibit the warrantless search and seizure of garbage left for collection outside the curtilage of a home, unless respondents [have] manifested a subjective expectation of privacy in their garbage that society accepts as objectively reasonable. Scott, 975 F.2d at 928 (citing Greenwood, 486 U.S. at 39). In Scott, the First Circuit addressed 1 Many communities across the United States celebrate a curb day or a give your stuff away day, an event where people are encouraged to place unwanted items next to the curb for others to observe and claim. See Give Your Stuff Away Day: Unclutter Your Life On September, The Huffington Post (Sep. 24, :22 AM), 10

20 the question of whether or not there was a difference between so-called private and public garbage when a criminal defendant claimed that he had a heightened expectation of privacy in his trash because he shredded his documents before placing them in garbage bags for collection. Id. The Scott court held that the defendant did not have a heightened expectation of privacy due to the shredding of the documents due to the rationale that irrespective of whether appellee intended to keep secret the contents of the documents in question by shredding them, there can be no doubt that appellee also intended to dispossess himself of those documents once they were shredded, and to place their fractured remnants in a public area accessible to unknown third parties.... Thus, it is appropriate to call the evidence at issue public trash because it was trash left for collection in a public place and over which its producer had relinquished possession. Id. at 929. Likewise, this Court has held that Fourth Amendment protections are not violated when warrantless searches are conducted in areas not within a defendant's legitimate expectation of privacy, where the defendant unsuccessfully attempts to shield those areas from inspection. Florida v. Riley, 488 U.S. 445, 449 (1989). In Riley, government agents flew a helicopter over the translucent top of a greenhouse and noticed that the greenhouse was being used to grow marijuana. Id. at This Court held that while Riley may have subjectively believed that his operations were shielded from the public eye, because the it was opaque to viewers from the road, he could not reasonably have expected that his greenhouse was protected from public or official observation from a helicopter. Id. at Additionally, this Court upheld a warrantless search of lands that the defendant had fenced in and installed multiple no trespassing signs on, to conceal the growing of marijuana, by reasoning that, [t]he test of legitimacy is not whether the individual chooses to conceal assertedly private activity. Rather, the correct inquiry 11

21 is whether the government's intrusion infringes upon the personal and societal values protected by the Fourth Amendment. Oliver v. United States, 466 U.S. 170, (1984). This Court is presented with a situation nearly identical to the one faced in Scott. The Petitioner in this case, much like the defendant in Scott, shredded incriminating documents before placing them as trash for pickup at the side of the curb. R. at 2. The act of shredding the documents before setting them out as trash might have given the Petitioner a subjective heightened expectation of privacy, because it made it harder for anyone to decode and read the message that they contained. However, similar to the attempts to conceal private activity in Riley and Oliver, this does not negate the fact that government's intrusion upon the personal and societal values protected by the Fourth Amendment is the same whether there is an attempt to conceal or not. See Oliver, 466 U.S. at A case-by case ad hoc analysis of Fourth Amendment rights to privacy would prove too strenuous if there were a heightened expectation for when there is an attempt to conceal and courts would have to rely on, [a] highly sophisticated set of rules, qualified by all sorts of ifs, ands, and buts and requiring the drawing of subtle nuances and hairline distinctions.... Wayne R. LaFave, The Robinson Dilemma, 1974 Sup. Ct. Rev. 127, 142 (1974). 2. The mere hiring of a third party document disposal company does not create a reasonable heightened expectation of privacy under the Fourth Amendment. A person does not have a legitimate expectation of privacy in information that is voluntarily turned over to third parties. See Smith, 442 U.S. at A person who leaves trash at a curb abandons it and therefore loses any claim to the reasonable expectation of privacy in the property that he is abandoning, Scott, 975 F.2d at 929. Abandonment does not have to be explicit but requires a factual showing of intent that may be inferred from acts, words, and 12

22 other objective facts. United States v. Cofield, 272 F.3d 1303, 1306 (11th Cir. 2001) (quoting United States v. Winchester, 916 F.2d 601, 603 (11th Cir.1990)). When analyzing whether or not there is a legitimate expectation of privacy in goods placed with a bailee, the nature of the transaction must be analyzed as well as the precautions taken to maintain privacy. Rawlings v. Kentucky, 448 U.S. 98, 105 (1980). A defendant lacks standing to challenge a search of items in the possession of a bailee if there is no reasonable expectation of privacy after the transfer. See United States v. Crowder, 588 F.3d 929, 934 (7th Cir. 2009). In the present case, the police collected the shredded documents while they were sitting in a blue container with a hinged lid that was unsecured by any kind of lock. R. at 2. The agency that the Petitioner hired to collect the trash did not arrive until after the police had collected the documents from the unsecured container. R.at 2. Testimony indicated that in-office document pickup was available through the disposal company so that the documents did not have to sit at the curb. R. at 4. While the documents were sitting at the curb and not in the hands of the disposal company, it is conceivable that any member of the public could have had access to the shredded documents. Even if this Court finds that the placing of the documents in a receptacle provided by the document disposal company created a type of constructive bailment, there is still no reasonable expectation of privacy. See Crowder, 588 F.3d at In Crowder, the Seventh Circuit Court of Appeals upheld a warrantless search of a car in the possession of a common carrier as a bailee. Id. The court in Crowder distinguished the car from the sealed barrels that were opened in United States v. Villarreal, 963 F.2d 770 (5th Cir.1992), because unlike Villarreal, the car was left unlocked and the carrier had the right to enter and to drive the car. Crowder, 588 F.3d at 935. The container in the present case was unlocked, similar to the car in Crowder, even though a lockable container was offered to and rejected by the Petitioner. R. at 4. 13

23 The Petitioner was likewise told that his shredded documents were to be taken to a state run recycling facility and was given the opportunity to upgrade to a package where the documents would be incinerated. R. at 4. The Petitioner refused all of the security upgrades offered by the disposal company and instead seemed unconcerned about what happened to his papers after they were shredded. R. at 4 (emphasis added). Therefore, even if this Court finds that the shredded documents were not abandoned by the Petitioner, there is still no legitimate expectation of privacy under the analysis set forth in Rawlings and Crowder. B. The DEA did not violate Petitioner s Fourth Amendment rights by using character recognition software to reconstruct the shredded documents because the usage of technology to enhance the abilities of law enforcement officers is permitted when conducting a proper warrantless search. The Supreme Court has never equated police efficiency with unconstitutionality. United States v. Knotts, 460 U.S. 276, (1983) (upholding the use of a beeper to track an automobile). A mere attempt to keep secret the evidence of a crime is not synonymous with a legally cognizable expectation of privacy. A mere hope for secrecy is not a legally protected expectation. Commonwealth v. Copenhefer, 526 Pa. 555, 562 (Pa. 1991). It is well settled in case law that law enforcement officers are fully allowed to apply human ingenuity and scientific advances to collect freely available evidence from the public domain. Scott, 975 F.2d at 930. Officers are allowed to use various methods in order to examine a lawfully seized object. State v. Petrone, 161 Wis.2d 530, 545 (Wis. 1991) (upholding the developing of film negatives for inspection). Additionally, officers and regulatory agencies are entitled to use sensory enhancing equipment when conducting a proper warrantless search. Dow Chem. Co. v. United States, 476 U.S. 227, 238 (1986). 14

24 In Knotts, this Court upheld the placement and tracking of a beeper on a container of chemicals as it traversed public roads because [n]othing in the Fourth Amendment prohibited the police from augmenting the sensory faculties bestowed upon them at birth. Knotts, 460 U.S. at 282. The Court stated that there was no expectation of privacy because the government agents could have used visual surveillance to track the container from public areas. Id. This Court has also upheld the usage of a sophisticated camera, which could photograph objects such as wires as small as ½-inch in diameter. Dow Chem. Co., 476 U.S. at Additionally, the FBI s usage of a software program designed to retrieve deleted documents from a computer was upheld after a Katz expectation of privacy analysis. Copenhefer, 526 Pa. at In the present case, the police attempted to reconstruct the shredded papers manually, but turned to the reconstruction technology after becoming frustrated at the amount of time it was taking. R. at 2. In this way, the police used the technology to supplement their own abilities, similar to the authorities in Knotts, Dow Chem. Co., and Copenhefer. The art of paper reconstruction has been around for as long as shredders have, [a]fter the takeover of the United States Embassy in Tehran in 1979, Iranian captors laid pieces of documents on the floor, numbered each one and enlisted local carpet weavers to reconstruct them by hand. Douglas Heingartner, Picking Up the Pieces, N.Y. Times, July 17, To save time, computer algorithms have been created to reconstruct shredded documents and had an accuracy rating of eighty percent in 2003 depending upon the size of the shreds. Id. Professional document reconstructions are generally recognized by the courts in a similar manner as fingerprint or handwriting evidence. Id. The pervasiveness of document reconstruction is evident, as document reconstruction software is currently available for mass market in-home use. See Adrian Chen, 15

25 Unshreddable, How to Reassemble a Shredded Document, Slate, (July ), Because police officers are allowed to use technology to enhance their abilities when conducting a proper warrantless search and document reconstruction technology is so easily accessible to the public, a Fourth Amendment violation did not occur through the DEA s usage of document reconstruction technology. II. No Sixth Amendment violations are implicated because Petitioner can assert no evidence of counsel error or prejudicial effect as required by Strickland. The Sixth Amendment reads in pertinent part that [i]n all criminal prosecutions, the accused shall... have the Assistance of Counsel for his defense. U.S. Const. amend. VI. When analyzing a violation of Sixth Amendment rights, [j]udicial scrutiny of counsel s performance must be highly deferential. Strickland v. Washington, 466 U.S. 668, 689 (1984). The touchstone of determining whether counsel was ineffective is whether counsel s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Id. at 686. In Strickland, this Court set out a two prong test to determine whether counsel s assistance was so flawed that a conviction should be reversed. 2 First, the Defendant bears the burden of proving that counsel s performance was deficient, or that counsel made errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment. Id. at 687. Second, the Defendant must show that these errors caused prejudice to the defense, or that counsel s errors were so serious as to deprive the 2 This Court has held that automatic reversal is required only when defense counsel objects to the representation of codefendants and prejudice does indeed exist. See Holloway v. Arkansas, 435 U.S. 475 (1978); Mickens v. Taylor 535 U.S. 162, 168 (2002) ( Holloway thus creates an automatic reversal rule only where defense counsel is forced to represent codefendants over his timely objection.... ). As Petitioner was tried and convicted before Frazier began representing Redman, as well as before Frazier s own indictment was handed down, automatic reversal is inapposite to this case. 16

26 defendant of a fair trial, a trial whose result is reliable. Id. Without a showing of both elements, it cannot be said that the conviction... resulted from a breakdown in the adversary process that renders the results unreliable. Id. Similarly, until a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance. Cuyler v. Sullivan, 446 U.S. 335 (1980). Petitioner can satisfy neither prong of Strickland in his assertion that Frazier did not adequately represent Petitioner because of counsel s subsequent representation of Redman. Similarly, Petitioner can cite no evidence that Frazier s later indictment caused any conflict of interest during his trial. Therefore, this Court should affirm the finding of the Thirteenth Circuit that no Sixth Amendment violation existed. A. Petitioner can assert no actual conflict that would prove that counsel s performance was deficient. Petitioner has presented no evidence that counsel s performance made any errors, let alone serious errors satisfying the first prong of Strickland. There is a heavy presumption that a lawyer is competent to provide a defendant with adequate representation that a defendant must rebut. United States v. Cronic, 466 U.S. 648, 657 (1984). An error or conflict requires an actual, as opposed to potential, conflict between the attorney and the interests of the client. See United States v. Hearst, 638 F.2d (9th Cir. 1981) (finding no actual conflict existed when counsel intended to write a book about his representation); Dukes v. Warden Connecticut State Prison, 406 U.S. 250 (1973) (ruling that no conflict of interest made petitioner s plea involuntary and unintelligent when counsel was duly representing clients on unrelated charges). This conflict must exist at the time of the trial and the court must look to the reasonableness of counsel s actions at the time of the trial. Strickland, 466 U.S. at 689. It would not be sufficient for 17

27 reversal to show only that counsel had faced a situation in which action or inaction that might benefit his client would work to the detriment of another client that divided counsel s loyalty. Wayne R. LaFave, Criminal Procedure 657 (5th ed. 2009). Instead, the defendant must show that the attorney represented two masters with opposing interests which might require less than an undivided fidelity toward either client. Zurita v. United States, 410 F.2d 477 (7th Cir. 1969); see also Hearst, 638 F.2d at 1194 ( We read [Cuyler] to define an actual, as opposed to a potential, conflict as one which in fact adversely affects the lawyer s performance. ). In Cuyler, this Court held that no actual conflict of interest existed when two lawyers represented three defendants in a murder trial. 446 U.S. at 335. Despite the fact that the lawyers gave conflicting accounts as to their roles in the trial, this Court held that no conflict of interest existed. Instead, this Court deferred to counsel s judgment that he could adequately represent his client s interests in a reasonable and adequate manner. Id. at 346. Indeed, this Court affirmed that multiple representation does not necessarily give rise to a conflict of interest such that a violation of the Sixth Amendment exists. Id. at 348; see also Holloway, 435 U.S. at 475. A mere possibility of conflict of interest is insufficient to impugn a criminal conviction. Cuyler, 446 U.S. at 350. Courts have similarly found that no conflict exists when defense counsel calls a former client as a witness in a subsequent proceeding. For example, in Donatelli, the First Circuit found that defendant had not satisfied his burden to prove that conflict existed when trial attorney had a prior relationship with a witness. United States v. Donatelli, 484 F.2d 505 (1st Cir. 1973). Defendant did not meet his burden to show prejudice because defendant s attorney at no time indicated that a particular avenue of interrogation was closed to him or that he was deterred in 18

28 any way from adequately representing his client by virtue of privileged information in his possession. Id. at 505. Similar to this Court s ruling in Cuyler, no conflict exists that would prove that Frazier s conduct was deficient. This Court must look at Frazier s actions at the time prior to and during the trial, not to the fact that he was subsequently indicted after the conclusion of Petitioner s trial. Indeed, Petitioner can only submit that a potential conflict may have existed because of Frazier s relationship with Redman or Frazier s own involvement with the drug conspiracy. However, these conflicts did not exist at the time of Petitioner s trial. Frazier represented Redman after Petitioner s trial concluded. Likewise, Frazier s indictment for his own charges were handed down after Frazier had been found guilty by a jury. The district court found that Petitioner s and Frazier s interests were quite perfectly aligned during the trial. R. at 6. The district court also noted that there was no evidence that Frazier was aware that he would subsequently be indicted for any role in the conspiracy. See Id. Petitioner can submit no tangible evidence that an actual conflict existed while Frazier represented him. Frazier vehemently filed pre-trial motions to suppress damning evidence, called up witnesses to support these motions, and actively advocated for his client. The District Court only noticed that Frazier looked nervous or harried, but made no other mention that Petitioner s counsel was in any way deficiently advocating for his client. Therefore, the ruling that no conflict of interest existed should be affirmed by this Court. 19

29 B. Petitioner s claim also fails because he can identify no acts or omissions by Frazier as prejudice that would have changed the outcome of his trial. The Sixth Amendment requires that the accused have counsel that acts in the role of an advocate. Cronic, 466 U.S. at 656 (citations omitted). An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. Strickland, 466 U.S. at 689. Alleged defects of counsel that have no probable effect on the outcome of the case do not constitute a violation of the Sixth Amendment. See Mickens, 535 U.S. at 166; see also Strickland, 466 U.S. at 693 (ruling that [e]ven if a defendant shows that particular errors of counsel were unreasonable... the defendant must also show that they had an adverse effect on the defense. (emphasis added)). These errors must be considered after reviewing the totality of the evidence before the judge or jury. Id. at 695. In order to prove an error, the defendant bears the burden of proving that counsel actively represented conflicting interests.... Cuyler, 446 U.S. at 350. Specifically, the convicted defendant bears the burden of citing specific examples of acts or omissions that prejudiced the outcome of the trial. Strickland, 466 U.S. at 689; see also United States v. DiCarlo, 575 F.2d 952, 957 (1st Cir. 1978) (ruling that a specific instance of prejudice must be shown. (citation omitted)); United States v. Jeffers, 520 F.2d 1256, 1263 (7th Cir. 1975) (finding that nothing [] in the record to raise any question about the fidelity of his performance or his professional obligations to his clients. ). Likewise, until a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance. Strickland, 446 U.S. at 689 (citation omitted). Indeed, without evidence of an adverse effect on the trial, Sixth Amendment rights are not 20

30 suspect. See Cronic, 466 U.S. at 657 ( Absent some effect of challenged conduct on the reliability of the trial process, the Sixth Amendment guarantee is generally not implicated. ). Specifically, courts have recognized that a conflict prejudices the case when the conflict inhibits counsel s adequate representation of the defendant. See Holloway, 435 U.S. at 475 (noting that, specifically in the joint representation context, what a lawyer is refrained from doing is to be considered when determining adverse effects on any alleged prejudice.). However, courts must be wary to attempt to speculate whether counsel s inaction effected the outcome of the trial. Id. at ( It may be possible in some cases to identify from the record the prejudice resulting from attorney s failure to undertake certain trial tasks, but... it would be difficult to judge intelligently the impact of a conflict on the attorney s representation of a client. ). For example, in Cronic, this Court found no Sixth Amendment violation despite the fact that counsel was a young real estate lawyer trying a criminal case and had only 25 days to prepare for trial. 466 U.S. at 648. In fact, counsel put on no defense and essentially only crossexamined the government witnesses. Id. at 651. Likewise, in Jeffers, counsel repeatedly objected during a cross examination that he had a conflict of interest. Jeffers, 520 F.2d at Despite this, the Seventh Circuit found no conflict of interest and that counsel had adequately advocated for his client. Id. at 1266; see also United States v. Camiel, 518 F.Supp (E.D.Pa 1981) (ruling that nothing in the record supported a finding that counsel was adversely affected by any alleged conflict of interest.). Similarly, the First Circuit has held that when counsel ends a relationship with a former client, he can effectively represent another client in a case stemming from the same incident. Theodore v. New Hampshire, 614 F.2d 817, (1st. Cir. 1980). 21

31 The facts before this Court do not warrant any prejudice that could have altered the decision by the finder of fact. Frazier filed several pre-trial motions and actively advocated to suppress potentially harmful evidence. See R. at 3. Frazier called a customer service representative to the stand in support of his motion to suppress evidence. R. at 3-4. Nothing in the record suggests that Frazier did not actively represent Petitioner s interests or that he committed any error that would have changed the outcome of the case. Indeed, the district court noted that Mr. Black and Mr. Frazier s interests were perfectly aligned... [and] I did not see anything glaringly wrong with his handling of the case.... R. at 6. Likewise the only acts or omissions Petitioner could readily point to that would have influenced the jury were that Frazier was harried or nervous, which is hardly an act that would constitute sufficient prejudice to reverse the conviction. See Cronic, 466 U.S. at 648. Therefore, reversal is inappropriate in this case. C. Even if a conflict of interest arose, the District Court was within its discretion to find no Sixth Amendment violation existed. District Court s have broad discretion to determine whether a conflict of interest has affected the outcome of a trial. See Wheat v. United States, 486 U.S. 153, 157 (1988) (finding that the District Court s refusal to permit the substitution of counsel in this case was within its discretion and did not violate petitioner s Sixth Amendment rights. ). There is a strong presumption that counsel of the defendant s choice is adequate. See Id. This presumption is rebuttable, but requires a showing that there is a serious potential for an actual conflict. Id. at 164. The evaluation of the facts and circumstances of each case under this standard must be left primarily to the informed judgment of the trial court. Id.; see also, Cronic 466 U.S. at 648 (deferring to the trial court s determination that counsel was adequate). 22