KENNY BEARSON, Petitioner, v. STATE OF CHAOSTOWN, Respondent, On Petition of Certiorari To The U.S. Court of Appeals of the Thirteenth Circuit w

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1 Team No. 23 In The Supreme Court of the United States 2015 Thurgood Marshall Memorial Moot Court Competition w KENNY BEARSON, Petitioner, v. STATE OF CHAOSTOWN, Respondent, w On Petition of Certiorari To The U.S. Court of Appeals of the Thirteenth Circuit w BRIEF FOR RESPONDENT w Team 23 Jose Mafnas Jacqueline Win Counsels for Respondent

2 QUESTIONS PRESENTED I. Did the Chaostown police officers search and seizure that took place at the petitioner s home violate the Fourth Amendment? II. Did the trial court s denial of the petitioner s constitutional right to present a complete defense in ruling that Mr. Lara Jr. s confession inadmissible deny the petitioner s constitutional right to present a complete defense; and if the confession were admissible, would the proceedings have reached a different result? i

3 TABLE OF CONTENTS QUESTIONS PRESENTED...i TABLE OF CONTENTS...ii TABLE OF AUTHORITIES...iii STATEMENT OF JURISDICTION...vi CONSTITUTIONAL AND STATUTORY PROVISIONS...vi STATEMENT OF THE CASE...1 SUMMARY OF ARGUMENT...6 ARGUMENTS...7 I. The Chaostown state officers search did not violate the Fourth Amendment s prohibition on unreasonable searches and seizures...7 A. The Fourth Amendment authorizes the search of Petitioner s house because his sister, Ms. Bearson, voluntarily granted the officers consent to search...8 i. Ms. Bearson s consent was voluntary because the officers did not apply coercion or duress while requesting her consent to search...9 ii. The Court has found voluntary consent in much more coercive settings...10 B. The Fourth Amendment authorizes the search of Petitioner s house because his sister, Ms. Caroline Bearson, was a third party with common authority...10 i. Despite Petitioner s absence, Ms. Bearson s third party consent is still valid because it was reasonable for her to assume that she may admit visitors...12 ii. The officers search did not violate the Fourth Amendment because the evidence was found in plain view...14 iii. The Fourth Amendment does not require the trial court to suppress the evidence in this case because the evidence was lawfully obtained...15 II. The exclusion of testimony concerning a third party confession does not deny Petitioner his rights to due process and the inclusion of the confession would not change the outcome of the case A. The testimony concerning the third party confession was properly excluded under the hearsay rule when its contents are unreliable and untrustworthy...16 i. Mr. Lara Jr. s statements were not of such unique character that the bare confession, without supporting proof of its reliability, would be admissible...17 ii. Mr. Lara Jr. s statements lacked trustworthiness because of his high level of intoxication at the time the confession was made iii. Mr. Lara Jr, s denial of the statement removes another layer of credibility in the evidence and does not have enough strength to be admitted...18 B. The exclusion of the testimony does not violate Petitioner s due process rights because he still had a fair opportunity to defend himself...20 C. The results of the proceedings would not have been different if Leopold s statements were admitted since it lacked adequate indicia of trustworthiness...22 CONCLUSION...23 ii

4 Cases TABLE OF AUTHORITIES Arizona v. Hicks, 480 U.S (1987) Brady v. Maryland, 373 U.S. 83 (1963) Brigham City v. Stuart, 547 U.S. 398 (2006)... 8 Bumper v. California, 391 U.S. 543 (1968) Byars v. United States, 273 U.S. 28 (1927) Chambers v. Mississippi, 410 U.S. 284 (1973) Chapman v. California, 386 U.S. 18 (1967) Colorado v. Connelly, 497 U.S. 157 (1986) Coolidge v. New Hampshire, 403 U.S. 443 (1971) Davis v. U.S., 131 S.Ct. 2419, 2423 (2011) Ellison v. Commonwealth, 219 Va. 404 (1978)... 18, 20 Fahy v. Connecticut, 375 U.S. 85 (1963) Fernandez, 134 S.Ct (2014) Flagg Bros., Inc. v. Brooks, 436 U.S. 149 (1978)... 8 Florida v. Bostick, 501 U.S. 429 (1991) Florida v. Royer, 460 U.S. 491 (1983)... 12, 13 Georgia v. Randolph, 547 U.S. 103 (2006)... passim Hines v. Commonwealth, 136 Va. 728 (1923) Horton v. California, 496 U.S. 128 (1990) Hudson v. Michigan, 547 U.S. 586 (2006) Illinois v. Andreas, 463 U.S. 765 (1983) Illinois v. Rodriguez, 497 U.S. 177 (1990)... 9, 12, 16 v

5 Johnson v. Commonwealth, 259 Va. 654 (2000) Johnson v. United States, 333 U.S. 10 (1948)... 8 Katz v. United States, 389 U.S. 347 (1967)... 8, 9 Kentucky v. King, 131 S.Ct (2011)... 9 Mapp v. Ohio, 367 U.S. 643 (1961)... 8, 16 Michigan v. Fisher, 558 U.S. 45, 47 (2009) Michigan v. Lucas, 500 U.S. 145 (1991) Montana v. Egelhoff, 518 U.S. 37 (1996) Ohio v. Robinette, 519 U.S. 33 (1996) Payton v. New York, 445 U.S. 573 (1980)... 8 Pennsylvania Bd. of Probation and Parole v. Scott, 542 U.S. 357 (1998) People v. Adams, 115 Cal. App. 4th 243 (2004) People v. Jackson, 2005 WL (Cal. Ct. App. Feb. 14, 2005) People v. Sykes, 341 Ill. App. 3d 950 (2003) Riley v. California, 134 S.Ct (2014) Satterwhite v. Texas, 486 U.S. 249 (1988) Schneckloth v. Bustamonte, 412 U.S. 218 (1973)... 9, 10 Taylor v. Illinois, 484 U.S. 400 (1988) Terry v. Ohio, 392 U.S. 1 (1968)... 9, 13 United States. v. Matlock, 415 U.S. 164 (1974)... 11, 12, 13, 14 United States v. Agurs, 427 U.S. 97 (1976)... 23, 24 United States v. Gaudin, 515 U.S. 506 (1995) United States v. Loggins, 486 F.3d 977 (2007)... 18, 19 v

6 United States v. Lopez-Alvarez, 970 F.2d 583 (1992) United States v. Mendenhall, 446 U.S. 544 (1980) Constitutional Provisions U.S. Const. amend. IV... 8 U.S. Const. amend. XIV... 8 U.S. Const. amend. V v

7 STATEMENT OF JURISDICTION This appeal, following the petitioner s first degree murder conviction, is authorized pursuant to 28 U.S.C. 1254(1). CONSTITUTIONAL & STATUTORY PROVISIONS The Fourth Amendment provides, in relevant part: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const. amend. IV. The Fifth Amendment provides: No person shall be held to answer for a capital, or otherwise infamous crime, unless a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. U.S. Const. amend. V. The Fourteenth Amendment provides, in relevant part: All persons born on naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of laws. U.S. Const. amend. XIV, 1. vi

8 STATEMENT OF THE CASE In January 2010, Chaostown police officers discovered two murder victims in a parked car alongside a dirt road on a rural highway. The officers determined that the two victims were Chaostown residents Billy Smith and Sally Jones. The two victims had died from gun shot wounds from.30 caliber bullets from a rifle. Billy was shot five times, and Sally was shot three times, with two of the bullets having been pass through bullets from the shots to Billy, who had been seated in the driver s seat. Forensic evidence revealed that the shooter had been standing close to the driver s side door when the shots were fired. The next morning, the police received an anonymous tip that the shootings arose from a drug deal gone badly. Approximately two weeks later, after interviewing Chaostown residents, information led the case s lead investigator, Detective Vincent Binger, to Jessica Minder. Minder was a New Year s Eve partygoer at the dock, a popular gathering place approximately two miles from where the shooting took place. Minder revealed that she had arrived at the dock with several friends at approximately 10 p.m. Minder admitted that most of the partygoers were underage and, like them, she was using drugs and alcohol. She identified Kenny Bearson, Sandy Bearson, and Robert Clark as among those she partied with at the dock. She did not recall the victims being at the party nor did she hear of the murder that night. Minder revealed that after the party at the dock, Petitioner Kenny Bearson took her home. Shortly thereafter, Detective Binger contacted Petitioner, who was in his driveway at the time Detective Binger arrived approached his residence. Petitioner admitted being at the party and driving his sister Sandy, Minder, and Robert Clark home just after midnight, thus corroborating part of Minder s testimony. Petitioner explained that he knew nothing about the shootings, but he was acquainted with victims. Detective Binger requested Petitioner s consent to 1

9 look around his residence, but Petitioner refused consent responding that he did not want anyone nosing around his house and getting into his business. Next, Detective Binger interviewed Sandy Bearson, but she denied knowing anything about the shooting and stated that she passed out around midnight. Then, Detective Binger interviewed Robert Clark, who explained that he was sober enough to recollect that he got a ride home with Petitioner, but denied any knowledge of the shootings. Clark was Petitioner s neighbor whom he occasionally played basketball with. Over the next few months, Detective Binger re-contacted all of the witnesses he had interviewed to try to obtain additional information. Clark did not change his account of the events, but revealed that a few weeks after the homicides, Petitioner warned him in a threatening tone to not talk about the night at the dock with anyone. Clark stated that Petitioner warned him with a threatening tone. Approximately three months after the homicides, Detective Binger re-interviewed Minder, who returned to Chaostown after moving away a few weeks after the shooting. Minder contacted Detective Binger after seeing his number on a poster. Minder confessed the she had previously lied when she claimed she did not know anything about the shootings. Minder explained that she was very intoxicated during her ride home with the Petitioner, but she recalls that Petitioner suddenly stopped his truck. While stopped, she exited the truck to vomit. As she was vomiting, she recalled hearing popping noises. After vomiting, she described a parked car with two persons slumped over with blood on their faces. Minder told Detective Binger that several days after shootings, Petitioner had threatened her and told her not to talk about what happened at the night of the shooting. 2

10 Shortly thereafter, Detective Binger went to the Petitioner s home to speak with him. Upon their arrival, Detective Binger and his fellow officers stood at the front of the door and called to see if anyone was home. An adult woman, Caroline Bearson, came to the door and identified herself as the petitioner s sister. She appeared groggy and told the officers that Petitioner was not home. Detective Binger requested consent to search, but Ms. Bearson denied permission. She informed the officers that she was undergoing chemotherapy treatments at the hospital in town. She also informed them that she stays at Petitioner s house after her treatment for as long as it takes for her to recover before driving to her residence located three-hours away. At the time, Ms. Bearson was smoking medical marijuana, but she did not have her prescription with her. This is a violation of Chaostown city ordinance. Detective Binger then informed Ms. Bearson that he would seek to obtain a search warrant for the Petitioner s house. At that time, Ms. Bearson gave the officer s consent to search. Ms. Bearson explicitly restricted the scope of the search by informing the officers that they should not go into Petitioner s bedroom or bathroom. Immediately upon entering the Petitioner s residence, officers observed a burnt marijuana cigarette on the coffee table. After finding the cigarette, officers walked into the kitchen and observed a pawnshop receipt on the kitchen table. The receipt indicated that Petitioner pawned several rifles, some capable of shooting.30 caliber bullets, three weeks after the shootings. Per Ms. Bearson s demands, the officers did not enter Petitioner s bedroom or bathroom. Approximately one month later, Detective Binger was able to locate and re-interview Clark. Clark was told that Minder had admitted to knowledge of the incident and that he should clear his conscience. Clark then explained to Detective Binger that, after the party, he rode in the passenger s seat of Petitioner s truck, while Ms. Bearson and Ms. Minder were seated in the 3

11 back. He claimed that a few minutes into the drive, a car passed them going in the opposite direction and Petitioner immediately turned the car around to follow them. When the car pulled off onto a dirt road, Petitioner parked his vehicle facing the driver s door of the car, turned off the lights and got out of the truck. Clark also got out and saw Minder get sick at the back of the truck, and as he walked towards her to make sure she was OK, he heard the truck door open followed by four to five popping sounds. He was unable to verify the black figure or the object that the figure retrieved from the back of the truck. Petitioner and Clark both re-entered the truck at the same time and Petitioner drove off at a high speed. Clark was unaware as to Ms. Minder s whereabouts at this time and was dropped off at home soon after. Clark stated that a few days later, Petitioner warned Clark to keep quiet about that night. Prior to trial, Petitioner moved to suppress the pawnshop receipt as evidence at trial, arguing that the search and seizure violated his Fourth Amendment rights. The trial court denied this motion. Along with Minder and Clark s testimonies and evidence that the victims died of wounds from a.30 caliber rifle from close range, the pawnshop receipt found in Petitioner s home was used to ultimately convict Petitioner in federal court on all counts of first-degree murder. A few days after Petitioner filed his appeal, a deputy with the County Sheriff s Office told Detective Binger that another deputy in his department told his that Chaostown resident, Leopold Lara, Jr., had confessed to the crime. Detective Binger interviewed Deputy Finster and was informed that several months ago she was involved in a high-speed chase with Leopold Lara, Jr., who is her uncle. Deputy Finster was finally able to catch up to Mr. Lara, Jr. and could tell he was intoxicated. Lara, Jr. stated that he was sorry he killed those kids that he did not mean to shoot the girl, and that he used a.30 caliber rifle. He also asked how Petitioner was doing. 4

12 Lara, Jr. was intoxicated to the point that during the chase, he allegedly tried to take a gun from his holster to shoot at Deputy Finster, who is his niece. Deputy Finster never arrested him and instead took him home and gave him a citation for speeding. She also did not write a police report of the incident because she thought it was just drunk talk and did not take it seriously. Detective Binger also found out that Lara, Jr. s father sells marijuana in the community, and Leopold works for him sometimes, and they often take guns in exchange for marijuana. Deputy Finster is currently on suspension from the force for public intoxication. Detective Binger then interviewed Lara, Jr., who was in the hospital awaiting a liver transplant, but was coherent. Lara, Jr. denied making any confession to Deputy Finster, but had instead said why don t you take me to jail for killing those kids because he figured the police would try to pin something on him because of his affiliation with his father. A week later, Lara, Jr. passed due to health complications. Upon learning about the confession, Petitioner s attorney unsuccessfully filed a motion for a new trial under Rule 33(b)(1) of the Federal Rules of Criminal Procedure, based upon this new evidence. Although the parties stipulated that evidence of the confession could only be introduced through another party due to Lara, Jr. s death and pursuant to Federal Rules of Evidence 804, the trial court denied the motion. It was held that the confession was inadmissible hearsay, and that, even if the confession had been admitted at trial, it would not have affected the outcome of Petitioner s trial. Petitioner appealed the decision and both issues were consolidated on appeal. The Thirteenth Circuit affirmed the decision. The Court granted certiorari. 5

13 SUMMARY OF ARGUMENTS With respect to the Fourth Amendment issue, we ask that this Court remain cautious in expanding the exclusionary rule, and affirm the Thirteenth Circuit s holding that the search of Petitioner s house did not violate the Fourth Amendment for two main reasons: (1) Petitioner s sister, Ms. Caroline Bearson, voluntarily granted the police consent to search Petitioner s house and (2) Ms. Bearson was a third party with common authority over the areas searched. With respect to the Fifth Amendment due process issue, we ask the court to affirm the Thirteenth Circuit s holding that its exclusion of testimony concerning a third party did not violate Petitioner s due process rights for three main reasons: (1) the exclusion of testimony concerning a third party confession does not deny Petitioner his rights to due process and the inclusion of the confession would not change the outcome of the case; (2) the testimony concerning the third party confession was properly excluded under the hearsay rule because its contents are unreliable and untrustworthy; and (3) the exclusion of the testimony does not violate Petitioner s due process rights because he still had a fair opportunity to defend himself. But even assuming arguendo that the statement was admitted, the results of the proceedings would not have been different since the confession lacked adequate indicia of trustworthiness. Looking to the totality of the circumstances, the trial court correctly suppressed the third party confession. 6

14 ARGUMENTS I. The Chaostown state officers search did not violate the Fourth Amendment s prohibition on unreasonable searches and seizures. Petitioner erroneously asserts that his Fourth Amendment rights were violated by the Chaostown state police officers search because the officers search falls under the Fourth Amendment s consent exception. The Fourth Amendment ensures the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. U.S. Const. amend. IV. A citizen s Fourth Amendment rights extend to all state actions that may have denied equal protection of the laws. U.S. Const. amend. XIV; Mapp v. Ohio, 367 U.S. 643, (1961). A state may act through different agencies, such as its executive law enforcement branch. See Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 165 (1978). The Fourth Amendment generally requires the state to obtain a warrant before entering a home, Brigham City v. Stuart, 547 U.S. 398, 403 (2006); thus prohibiting warrantless entries, whether to make an arrest or to search for specific objects. See Payton v. New York, 445 U.S. 573, 576, (1980); see also Johnson v. United States, 333 U.S. 10, 17 (1948). In order to be properly considered a search, the police investigation must either invade an individual s reasonable expectation of privacy or otherwise trespass on an individual s property. Katz v. United States, 389 U.S. 347, 351, 361 (1967) (Harlan, J. concurring). In order for the Fourth Amendment to be implicated, there must first be a search within the meaning of Katz. Id. Under Katz, there is a search if a state violates a person s subjective reasonable expectation of privacy, and that expectation is one society is prepared to recognize as objectively reasonable. Id. 7

15 A. The Fourth Amendment authorizes the search of Petitioner s house because his sister, Ms. Bearson, voluntarily granted the officers consent to search. The Fourth Amendment protects people and not simply areas. Katz, 389 U.S. at 351. But generally, answers to Fourth Amendment questions require reference to a place. Id. at 361. The text of the Fourth Amendment does not specify when a search warrant must be obtained. Kentucky v. King, 131 S.Ct. 1849, 1856 (2011). The Court has emphasized that whenever practicable, the police must obtain advanced judicial approval of searches and seizures through the warrant procedure. Terry v. Ohio, 392 U.S. 1, 20 (1968). Conversely, the Court has long recognized certain exceptions of permissible warrantless searches. See Fernandez v. California, 134 S.Ct. 1126, 1132 (2014). In this case, the police officers subsequent warrantless search of Petitioner s house, which led to the discovery of his incriminating pawnshop receipt, falls within the Fourth Amendment warrantless search exceptions because they were able to obtain voluntary consent. Consent to search occupies one of the Fourth Amendment s permissible warrantless search exceptions. See e.g., Illinois v. Rodriguez, 497 U.S. 177, 186 (1990) (prohibition of warrantless searches does not apply to situations in which voluntary consent has been obtained either from the [owner], or from a third party who possesses common authority ). The Court has recognized that consent searches are part of law enforcement officers standard investigatory techniques and are a constitutionally permissible and wholly legitimate aspect of effective police activity. See Schneckloth v. Bustamonte, 412 U.S. 218, 228, (1973). Here, the officers obtained consent from Ms. Bearson; therefore, the Fourth Amendment s warrant requirements do not apply to the officers search of Petitioner s house because the search falls within the Fourth Amendment s consent exception. 8

16 i. Ms. Bearson s consent was voluntary because the officers did not apply coercion or duress while requesting her consent to search. The officers did not apply coercion or duress while requesting Ms. Bearson s consent to search. For the consent to be valid, it must have been given voluntarily, absent duress or coercion. See Florida v. Bostick, 501 U.S. 429, 438 (1991); see also Schneckloth, 412 U.S. at 227. The Fourth Amendment does not require police officers to advise a subject of his or her right to refuse consent for the consent to be considered voluntary. Schneckloth, 412 U.S. at Under the Fourth Amendment, voluntariness of consent is a question of fact to be determined from the totality of the circumstances at the time it was requested. Ohio v. Robinette, 519 U.S. 33, 40 (1996); see generally Schneckloth, 412 U.S. at 233 ( Rather it is only by analyzing all the circumstances of an individual consent that it can be ascertained whether in fact it was voluntary or coerced ). In Petitioner s case, Ms. Bearson initially refused the officers request for consent to search. Appropriately, these officers respected her wishes and did not make a second request. But, as the officers were leaving to attempt to seek to obtain a warrant, Ms. Bearson reengaged them voluntary granted permission to search. Therefore, furnished with Ms. Bearson s voluntary consent to search the house, the officers search falls within the Fourth Amendment permissible warrantless search exceptions. For consent to validate a search, it must be, in fact, freely given. See Bumper v. California, 391 U.S. 543, 549 (1968). Here, the officers statement to Ms. Bearson that they would seek to obtain a search warrant upon leaving Petitioner s residence was not coercive. Instead, it was a mere statement of fact and not an exercise of any authority. Therefore, Ms. Bearson freely granted the officers lawful consent to search her brother s residence. 9

17 ii. This Court has found voluntary consent in much more coercive settings. It should not be asserted that the officers applied coercion or duress in obtaining Ms. Bearson s consent to search because she decided to voluntarily grant them consent to search, absent a second request from the officers, in the comfort of her brother s home. The Court has recognized voluntarily consent to search in much more coercive settings. For example, in U.S. v. Mendenhall, a twenty-two year old African-American woman granted officers consent to search while inside a Drug Enforcement Agency (DEA) office while surrounded by older, white DEA officers. U.S. v. Mendenhall, 446 U.S. 544, 559 (1980). The DEA officers search ultimately led to the finding of incriminating evidence. Id. at 548. As a young African-American woman surrounded by white older male officers in a federal building, she asserted that the setting in which she granted consent was inherently coercive in nature. Id. at 559. But the Court held that the consent was voluntarily based on the fact that there was little or no evidence of coercion inside the DEA office. Id. Like Mendenhall, there is little to no evidence of coercion in this case, and Ms. Bearson was not at all in a government office. Instead, she was at her brother s home. Therefore, consent in this case was indisputably voluntary because there is no evidence that the officers asserted any duress or coercion in obtaining consent to search. B. The Fourth Amendment authorizes the search of Petitioner s house because his sister, Ms. Caroline Bearson, was a third party with common authority. Either the owner of the property to be searched or a third party with common authority over the property can grant the State voluntary consent to search. See United States v. Matlock, 415 U.S. 164, 170 (1974). In order to determine if a third party has common authority, the Court must rely on reasonableness. See Georgia v. Randolph, 547 U.S. 103, 106 (2006). Reasonableness is the Fourth Amendment s ultimate touchstone because it is a constant element that holds great weight in determining social expectations. Id. at 103; see Riley v. 10

18 California, 134 S.Ct. 2473, 2482 (2014); see also Michigan v. Fisher, 558 U.S. 45, 47 (2009). The reasonableness requirement of the Fourth Amendment is [N]ot that officers always be correct, but that they always be reasonable. Rodriguez, 497 U.S. at 176 (Scalia, J.). The State bears the burden of showing reasonableness to establish the third party s common authority. Id. If the State shows reasonableness to establish the third party s common authority to grant consent, then the warrantless search is validated. Florida v. Royer, 460 U.S. 491, 497 (1983). The Fourth Amendment allows a warrantless entry and search of a home if state officers obtain the voluntary consent of an occupant who shares, or is reasonably believed to share, common authority over the property. Matlock, 415 U.S. at 170; Randolph, 547 U.S. at 106. Common authority rests on mutual use of the property by persons generally having joint access or control for most purposes. Matlock, 415 U.S. at 172, n. 7. Here, Ms. Bearson was not an actual owner of Petitioner s house, but she was a third party with common authority over the house. Ms. Bearson stays at her brother s house for as long as it takes her to recover from her chemotherapy treatment. This is likely an invariable amount of time as it depends on the intensity of her treatment. But, considering her post-therapy grogginess and three-hour distance from her home, it would be reasonable to assume she stays at the house to recover for a few hours at a time. Ms. Bearson consistently occupied her brother s house since she was receiving weekly chemotherapy treatment in his town. Thus, by applying the Fourth Amendment reasonableness test to determine common authority, the Court should find that Ms. Bearson had common authority over the social areas of Petitioner s house, such as his kitchen and living room. For example, Ms. Bearson had common authority to smoke medicinal marijuana in the living room, as indicated by her burnt marijuana cigarette on the living room coffee table. With such common authority over the living room, it would also be reasonable for 11

19 the Court to assume that Petitioner granted his ill sister common authority over the kitchen to feed herself to aid in her recovery from chemotherapy. In the event a warrant is granted or a permissible warrantless search occurs, the scope of the search must be strictly tied to and justified by the circumstances which rendered the search permissible. See Terry, 392 U.S. at 18. At the time Ms. Bearson granted consent, she was explicit in limiting the scope of the search by restraining consent to search Petitioner s room and bathroom. The officers were reasonable in respecting her demands by not searching outside the scope of her consent. Accordingly, the scope of the officers search was strictly tied to and justified by Ms. Bearson s scope of common authority and the circumstances of which she rendered the search permissible. Also, even if Ms. Bearson did not have common authority, her actions strongly implied that she did, and the officers were reasonable in believing so. Supra; see Royer, 460 U.S. at 497; see also Matlock, 415 U.S. at 170. Therefore, the Court should not suppress the pawnshop receipt found in plain view because the officers reasonably acted in accordance with Ms. Bearson s common authority; and even if she did not have common authority, the officers were reasonable in believing she did because her actions strongly implied so. i. Despite Petitioner s absence, Ms. Bearson s third party consent is still valid because it was reasonable for her to assume that she may admit visitors. Despite Petitioner s absence, Ms. Bearson s consent is still valid because the Fourth Amendment does not require Petitioner s presence when consent to search is requested. A physically present occupant s refusal to permit entry renders a warrantless entry and search unreasonable and invalid as to the person refusing. Randolph, 547 U.S. at 120. Consent from a third party who possesses common authority over the property or items is valid against an absent, non-consenting person who shares that authority. Matlock, 415 U.S. at 170. Therefore, the actual 12

20 owner of the property or item to be searched does not have to be present when a third party grants the State consent to search. See id. In regards to the reasonableness of a search and thirdparty consent, the Randolph Court interpreted Matlock to show two things: (1) that reasonableness of a search is significantly a function of commonly held understandings about the authority that co-inhabitants may exercise in ways that affects other s property interests and (2) the assumption that third parties usually make about their common authority when they share their quarters is that they may admit visitors, with the consequence that a guest obnoxious to [the owner] may be admitted in [the owner s] absence. Randolph, 547 U.S. at 104 (citing Matlock, 415 U.S. 164) (internal citation omitted). Thus, the owner bears the risk of a third party with common authority inviting others into the owner s home during his absence, despite the owner s negative feelings towards such visitors. See id. In Petitioner s case, he refused to grant consent to search his house approximately ten weeks 1 before the officers visited his residence to follow up on a new tip. Petitioner was not physically present at the time the officers obtained voluntary consent from his sister. It is important to note that the officers did not plan to visit Petitioner s residence in his absence, but rather spontaneously decided to visit his residence after receiving new, implicating information about the homicide. The officers calling out to see if anyone was home upon their arrival and their interaction with Ms. Bearson for the very first time further indicates the absence of any foresight to visit Petitioner s residence in his absence. Also, the officers were initially going to leave Petitioner s house to try to obtain a search warrant upon Ms. Bearson s initial refusal of 1 Petitioner initially denied the police consent to search two-weeks after the homicide. Approximately twelve-weeks after the homicide, the police interviewed witness Jessica Minder, who gave the officers information that may implicate Petitioner. Therefore, approximately ten-weeks had lapsed between when the officers initially contacted Petitioner and when the officer s immediately acted on the tip. 13

21 consent. Therefore, it cannot be said that the officers strategized to obtain consent by a third party in Petitioner s absence. Nevertheless, Ms. Bearson s consent is still valid because she was a third party with common authority over the kitchen area that the officers searched. Randolph recognized that it is an owner s risk that third parties with common authority assume that they may admit visitors into a residence with the consequence that some guests are obnoxious to the owner. See Randolph, 547 U.S. at 104. Here, Ms. Bearson reasonably assumed that she had enough common authority to grant the officers consent to search Petitioner s house, but not his room or bathroom. Nonetheless, the evidence was not found in Petitioner s room or bathroom, but in the kitchen under Ms. Bearson s common authority. Unfortunately, Petitioner must bear the risk and live with its consequences. Therefore, despite his absence, Ms. Bearson lawfully granted the officers consent to search Petitioner s residence. ii. The officers search did not violate the Fourth Amendment because the evidence was found in plain view. If an item were already in plain view, neither its observation nor its seizure would involve any invasion of privacy. Horton v. California, 496 U.S. 128, (1990); Arizona v. Hicks, 480 U.S. 321, 325 (1987); Illinois v. Andreas, 463 U.S. 765, 771 (1983). In order for a warrantless seizure of an object in plain view to be valid, two conditions must be satisfied in addition to the essential predicate that the officer did not violate the Fourth Amendment in arriving at the place from which the object could be plainly viewed. Horton, 496 U.S. at 128. First, the object s incriminating character must be immediately apparent. Coolidge v. New Hampshire, 403 U.S. 443, (1971). Second, the officer must have a lawful right of access to the object itself. Horton, 496 U.S. at 129. Here, the officers gained limited access to Petitioner s house by obtaining Ms. Bearson s lawful consent. Then, the officers found the 14

22 incriminating pawnshop receipt on the kitchen table while searching within Ms. Bearson s scope of consent. Therefore, the Fourth Amendment permits the warrantless seizure of the pawnshop receipt because it was in the kitchen in the officers plain view. iii. The Fourth Amendment does not require the trial court to suppress the evidence in this case because the evidence was lawfully obtained. The Fourth Amendment s exclusionary rule requires the State to suppress evidence obtained from a warrantless search absent lawful consent from the actual owner or third party with common authority. Davis v. United States, 131 S.Ct. 2419, 2423 (2011); see Mapp, 367 U.S. at 649 (citing Byars v. United States, 273 U.S. 28, (1927)). However, the Fourth Amendment s exclusionary rule does not require the suppression of evidence if consent to search is lawfully given. See Rodriguez, 497 U.S. at 186. Suppression of evidence has always been this Court s last resort, and not [its] first impulse, Hudson v. Michigan, 547 U.S. 586, 591 (2006), and the exclusionary rule generates substantial social costs, U.S. v. Leon, 468 U.S. 897, 907 (1984), which sometimes include setting the guilty free and the dangerous at large. Hudson, 547 U.S. at 591. Therefore, the Court has been cautio[us] against expanding the exclusionary rule. Colorado v. Connelly, 497 U.S. 157, 166 (1986). The Court has repeatedly emphasized that the exclusionary rule s costly toll on truth-seeking law enforcement objectives is a high obstacle for those urging its application to suppress evidence. Pennsylvania Bd. of Probation and Parole v. Scott, 542 U.S. 357, (1998). Here, the State officers clearly acted in accordance with the Fourth Amendment; therefore, the Court must find that the State s burden of showing reasonableness has been met and that the State did not violate Petitioner s Fourth Amendment rights. Accordingly, the Court 15

23 must remain cautious in expanding the exclusionary rule and affirm the Thirteenth Circuit s decision to allow the pawnshop receipt into evidence. Therefore, the Fourth Amendment authorized the officers search of Petitioner s residence because Ms. Bearson gave voluntary consent as a third party with common authority. II. The exclusion of testimony concerning a third party confession does not deny petitioner his rights to due process and the inclusion of the confession would not change the outcome of the case. Petitioner s request for Leopold s out-of-court statements to be admitted is without cause. Although a statement was allegedly made, there is no record of the statement and no corroborating evidence to support the truthfulness of the statement. Although an accused may introduce evidence to prove that another party committed the crime that he is charged with, that right is limited. People v. Sykes, 341 Ill. App. 3d 950, 976 (2003), appeal pending, (Sept. 1, 2003). Petitioner has a right to present evidence of third party liability when the evidence is capable of raising a reasonable doubt as to his guilt of the charged crime. People v. Jackson, 2005 WL , at *2 (Cal. Ct. App. Feb. 14, 2005). Here, the evidence does not have sufficient credibility to raise a reasonable doubt as to Petitioner s conviction. Therefore, due to the lack of trustworthiness, even if Leopold s confession were admitted, it would not change the outcome of the case. A. The testimony concerning the third-party confession was properly excluded under the hearsay rule when its contents are unreliable and untrustworthy. Evidence of an out-of-court confession, exculpating the accused and made by a dead or otherwise unavailable witness, is admissible as an exception to the hearsay rule. Ellison v. Commonwealth, 219 Va. 404, 408 (1978). To introduce a hearsay statement under Federal Rules of Evidence 804(b)(3), the proponent must determine that (1) the declarant is unavailable as a witness, (2) the statement was against the declarant's penal interest when made, and (3) 16

24 corroborating circumstances clearly suggest that the statement is trustworthy. United States v. Loggins, 486 F.3d 977, 981 (2007). A declaration made out of court by a deceased or otherwise unavailable witness is admissible only upon a showing that the declaration is reliable. Id. The question of the quality of evidence necessary to establish reliability must be left to the discretion of the trial court and is to be determined upon the facts and circumstances of each case. Ellison, 219 Va. at 408. Determination of the statement s reliability depends on whether there is anything substantial, other than the bare confession, to link the declarant to the crime. Hines v. Commonwealth, 136 Va. 728, 843 (1923). i. Leopold s statements were not of such unique character that the bare confession, without supporting proof of its reliability, would be admissible. Although the parties stipulated that Leopold s confession could only be introduced through another party, the proffered testimony showed only a simple confession, which makes the testimony inadmissible under the hearsay rule. The facts contained in the third party confession were not of such unique character that only an actual perpetrator of the Chaostown crime would have known them. Because the investigation and witness interviews spanned over a few months, facts that would typically be unique, such as the type of gun used, could easily become public knowledge through word of mouth. Moreover, by raising reward money and hanging reward posters for information leading to the arrest, the community brought publicity to the case. Thus, knowledge about the type of bullets used could have traveled from person to person. In addition, throughout the process of conducting interviews, the police could have accidentally, or even strategically, released information regarding the pass through bullets that struck Sally. Without supporting evidence, Leopold s confession becomes simply a bare statement with no real weight. 17

25 ii. Leopold s statement lacked trustworthiness because of his high level of intoxication at the time the confession was made. If a statement is testimonial, the person making the statement must generally be available for cross-examination; however, an exception applies if the witness is unavailable pursuant to Federal Rules of Evidence 804. Loggins, 486 F.3d at 981. Under Federal Rules of Evidence 804, the statement must be trustworthy and reliable. Id. Here, when Leopold made his confessional statement during his incident with Deputy Finster, Leopold was highly intoxicated. Also, the individuals who were accompanying him in the car during the high-speed chase corroborated that Leopold was drunk. He was so intoxicated that he tried to take his gun from its holster to shoot at Deputy Finster his own niece. This indicates that Leopold was so intoxicated that he considered shooting his own family member. Even Deputy Finster affirmed that she thought the incident was just Leopold engaging in drunk talk. The reliability of the statement made needs to be assessed in the context of the declarant s state of mind. Leopold s drunken state of mind is not a valuable factor in demonstrating that the statement was made with trustworthy qualities. iii. Leopold s denial of the statement removes another layer of credibility in the evidence and does not have enough strength to be admitted. Aside from Leopold making the statement when he was heavily intoxicated, he also denied making that statement several months later. Evidence that merely suggests a third party may have committed the crime is inadmissible. Johnson v. Commonwealth, 259 Va. 654, 681 (2000). The statement cannot be admitted unless it clearly points to a third party s guilt. Johnson, 259 Va. at 681. There is insufficient evidence to support and corroborate the alleged confession. Nothing, besides Leopold s confession, links him to the crime. Even more, Leopold denied making any statement to the effect of killing those kids in his interview with Detective Binger. His denial creates further issues regarding the reliability of the statement, since it is no longer a 18

26 confession if the declarant is not admitting to any wrongdoing. Courts determined that a trial judge may not admit such testimony unless the statement was trustworthy. Ellison v. Commonwealth, 219 Va. 404, 408 (1978). To make a showing of trustworthiness, the defendant had to show substantial evidence, besides Leopold's bare confession. See id. Thus, the statement at issue here does not satisfy that test. The Court has previously ruled that individuals were denied their constitutional rights to present a complete defense because the defendant s favorable evidence was proactively suppressed by the prosecution. For instance, in Brady v. Maryland, the due process clause of the Fourteenth Amendment was violated by the prosecution's suppression of a statement of the accomplice admitting that the co-defendant committed the actual homicide. Brady v. Maryland, 373 U.S. 83, 85 (1963). The prosecution s suppression of evidence favorable to and requested by an accused violates due process where the evidence is material either to guilt or to punishment, irrespective of the prosecution s good or bad faith. Id. This is distinguishable from Leopold s confession because the issue is not that the evidence is suppressed, the issue is that the evidence is untrustworthy and inadmissible. Verifying the confession is important because it ensures that the third party does not suffer a faulty and mistaken conviction for merely communicating his random thoughts. United States v. Lopez-Alvarez, 970 F.2d 583, 592 (1992). Looking to the totality of the circumstances, there is no direct or circumstantial evidence by Petitioner or any witnesses verifying the truth to Leopold s statement or linking him to the actual crime. Based off of witness interviews, Jessica Minder and Robert Clark s statements, both point to Petitioner s guilt. Both Minder and Clark stated that during the alleged incident, they did not see Petitioner but heard popping noises coming from his vicinity. They were also subsequently threatened by Petitioner to keep quiet 19

27 about that night. At no point did the mention of Leopold or his presence come up. The lack of evidence corroborating Leopold s statements makes it so that the confession cannot form a basis for third party culpability evidence. People v. Adams, 115 Cal. App. 4th 243, 250 (2004). B. The exclusion of the testimony does not violate Petitioner s due process rights because he still had a fair opportunity to defend himself. Petitioner s Fifth Amendment rights were not infringed upon as he was fairly given the opportunity to fully bring forth relevant evidence and respond to opposing counsel. The Fifth Amendment to the United States Constitution guarantees that no one will be deprived of liberty without "due process of law. U.S. Const. amend. V; United States v. Gaudin, 515 U.S. 506, 523 (1995). The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations. Chambers v. Mississippi, 410 U.S. 284, 294 (1973). The rights to confront and cross-examine witnesses and to call witnesses in one's own behalf are essential to due process. A person's right to reasonable notice of a charge against him, and an opportunity to be heard in his defense a right to his day in court are basic in our system of jurisprudence; and these rights include, as a minimum, a right to examine the witnesses against him, to offer testimony, and to be represented by counsel. Id. The opinion in Montana v. Egelhoff written by Justice Scalia and joined by Justice Rehnquist, Justice Kennedy, and Justice Thomas noted that: The proposition that the Due Process Clause guarantees the right to introduce all relevant evidence is simply indefensible. As we have said: "The accused does not have an unfettered right to offer [evidence] that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence." Taylor v. Illinois, 484 U.S. 400, 410, 98 L. Ed. 2d 798, 108 S. Ct. 646 (1988). Relevant evidence may, for example, be excluded on account of a defendant's failure to comply with procedural requirements. See Michigan v. Lucas, 500 U.S. 145, 151, 114 L. Ed. 2d 205, 111 S. Ct (1991). And any number of familiar and unquestionably constitutional evidentiary rules also authorize the exclusion of relevant evidence. Montana v. Egelhoff, 518 U.S. 37, 42 (1996). 20

28 In Montana, Respondent s counsel heavily relied on the statement made in Chambers v. Mississippi to say that "the right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations." Chambers v. Mississippi, 410 U.S. 284, 302 (1973); Montana, 518 U.S. at 52. However, the Court was quick to distinguish Montana from Chambers. In Chambers, the Court allowed evidence originally suppressed by the trial court to be admissible because Chambers provided considerable assurance of the statement s reliability. Chambers, 410 U.S. at 302. Based on the facts and circumstances in Chambers, the Court ruled that by excluding the evidence, the trial court deprived him of a fair trial. Id. Thus, Chambers is certainly not that a defendant is denied a fair opportunity to defend against the State's accusations whenever "critical evidence favorable to him is excluded, but rather that erroneous evidentiary rulings can, in combination, rise to the level of a due process violation. Montana, 518 U.S. at 53. In Montana, the Court held that evidence of voluntary intoxication by the criminal defendant is inadmissible because there is no absolute right to present relevant evidence to one s defense if a state statute has made it law. Id. at 55. Similar to Montana, in the Petitioner s case, he does not have the limitless rights to admit any piece of evidence he sees fit. Due to the unreliable nature of Leopold s statements, the statement actually becomes irrelevant and can be excluded without infringing on the accused s due process rights. Even without the admission of Petitioner s favorable evidence, it is not critical and trustworthy enough to deny him his rights. He still has a fair opportunity to defend himself. He has the capacity to be represented in court and present other relevant evidence, rebut opposing evidence and present legal arguments. Accordingly, Petitioner has not suffered a denial of due process of law in the trial court s refusal to permit Leopold s statement into evidence. 21

29 C. The results of the proceedings would not have been different if Leopold s statements were admitted since it lacked adequate indicia of trustworthiness. Assuming arguendo that Leopold s confession was admitted, the result of the proceeding would not have been different because there is no reasonable possibility that the evidence could have changed the outcome of the conviction. The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction. Fahy v. Connecticut, 375 U.S. 85, (1963). There are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error, however, not all trial errors that violate the Constitution automatically call for reversal. Chapman v. California, 386 U.S. 18, (1967). For an error to be held harmless, the Court must find that it was harmless beyond a reasonable doubt. Satterwhite v. Texas, 486 U.S. 249, 258 (1988). The omission of evidence must be evaluated in the context of the entire record. United States v. Agurs, 427 U.S. 97, (1976). If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. Id. Petitioner is not complaining that he has been denied the opportunity to introduce testimony concerning a third party confession that was supported by considerable assurance of its reliability. Instead, he is simply unable to establish the reliability of Leopold s confession. If the evidence actually has no probative significance at all, no purpose would be served by requiring a new trial simply because an unreliable statement favorable to the Petitioner was made. See id. Based on the foregoing, Leopold s confession holds insufficient weight to be used in court. And, even it were admitted, the jury would have overlooked the statement because of its weak and useless nature. Also, it would be unlikely that the evidence will contribute to the verdict beyond a reasonable doubt. Thus, the proceeding s result would not have been different. 22