No IN THE Supreme Court of the United States. KENNY BEARSON, Petitioner, v. CHAOSTOWN. Respondent.

Transcription

1 No February 27, 2015 IN THE Supreme Court of the United States KENNY BEARSON, Petitioner, v. CHAOSTOWN. Respondent. On Writ of Certiorari to the United States Court of Appeals for the Thirteenth Circuit TEAM NUMBER 28 Counsel For Petitions BRIEF FOR PETITIONER

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... iii QUESTION PRESENTED... iv STATEMENT OF JURISDICTION... iv SUMMARY OF ARGUMENT... 1 STATEMENT OF FACTS... 2 ARGUMENT... 6 I. The Fourth Amendment protects against the unreasonable, warrantless search of Petitioner s home and the unreasonable seizure of Petitioner s property A. Petitioner s sister lacked the requisite authority to consent to a warrantless search Petitioner s property B. The plain view exception does not apply, because the property seized fails the Horton test for the lawfulness of a warrantless seizure II. The Exclusion of Mr. Lara s confession violated the Due Process Clause by depriving Petitioner of his constitutional right to present witnesses in his own defense A. Hearsay evidence of the confession was admissible as a Statement Against Interest B. The limited evidence supporting the conviction shows that the exclusion of Mr. Lara s confession was not harmless beyond a reasonable doubt CONSLUSION... 17! ii!!

3 TABLE OF AUTHORITIES CASES! Chambers v. Mississippi, 410 U.S. 284 (1973) Chapman v. California, 386 U.S. 18 (1967) Coolidge v. New Hampshire, 403 U.S. 443 (1971) Fernandez v. California, 134 S.Ct (2014)... 8, 9 Georgia v. Randolph, 547 U.S. 103 (2006)... 8 Horton v. California, 496 U.S. 128 (1990)... 1, 10 Illinois v. Rodriguez, 497 U.S. 177 (1990)... 7 Schneckloth v. Bustamonte, 412 U.S. 218 (1973)... 6 Shamaeizadeh v. Cunigan, 338 F.3d 535 (6th Cir.2003) United States v. Garcia 496 F.3d 495 (6th Cir. 2007) United States v. Matlock, 415 U.S. 164 (1974)... 1, 6, 7 United States v. McLevain, 310 F.3d 434 (6th Cir. 2002) Washington v. Texas, 388 U.S. 14 (1967) Williamson, Williamson v. United States, 512 U.S. 594 (1994) RULES! Fed. R. Evid. 801(2) Fed. R. Evid Fed. R. Evid. 804(3)... 13! iii!!

4 QUESTION PRESENTED 1. Did the court of appeals err by finding that Petitioner s temporary visitor possessed the requisite authority to consent to a warrantless search of Petitioner s solely-owned and solely-occupied property, after Petitioner declined a previous attempt by the same detective that conducted the warrantless search, and refusing to exclude evidence obtained during that warrantless search? 2. Did the court of appeals err in holding that the exclusion of an unavailable declarant s confession to the crime for which the defendant was standing trial did not deny the Petitioner his constitutional right to present a defense and did not affect the verdict, when the declarant identified the correct caliber of weapon used in the killing and the prosecution presented no physical evidence linking the Petitioner to the crime? STATEMENT OF JURISDICTION The court of appeals denied Petitioner s motion for a new trial. Petitioner filed a Petition for Writ of Certiorari, and this Court granted that motion. This Court s jurisdiction is invoked under 28 U.S.C. 1254(1).! iv!!

5 SUMMARY OF ARGUMENT 1. Where, as here, a guest of a home informs the police that she does not live at the home and is only present for a temporary period, the guest lacks the authority to consent to a warrantless search of the home. At the moment the guest told the police that she was a guest, police should have reasonably concluded that she lacked common authority over the property and ceased requesting permission to perform a warrantless search. As this Court stated in United States v. Matlock, 415 U.S. 164, 171 (1974), consent is only valid when exercise control for most purposes over the premises. Seizures are only valid if the officer is lawfully in the place where he discovered the evidence, the item was in plain view, and the incriminating nature of the evidence must be immediately apparent. Horton v. California, 496 U.S. 128, (1990). As is the case here, when police officers seize property during a warrantless search in which they are not lawfully on the premises and the incriminating nature of the evidence they seized was not immediately apparent, the seizure is unreasonable and any evidence collected must be suppressed at trial. Alternative means such as obtaining a search warrant exist for so that Fourth Amendment protection from unreasonable seizures is preserved. 2. The Due Process Clause protects a defendant s right to present witnesses in his own defense. Few rights are more fundamental. When the district court denied the Petitioner s motion for a new trial after he discovered evidence of another person s confession to the crime he was accused of that a police officer had! 1!

6 previously withheld, it violated the Petitioner s fundamental right. Mr. Lara s out-of-court confession was admissible under the Statement Against Interest exception to the hearsay rule. The parties stipulate to his unavailability. And confessing to a serious crime for which he was not even being investigated surely had a tendency to expose him to criminal liability. Furthermore, his confession is sufficiently corroborated by Mr. Lara s access to weapons, involvement in selling drugs, and forensic evidence. And given the already scanty evidence supporting the Petitioner s conviction, this Court cannot conclude that excluding the confession was harmless beyond a reasonable doubt. The prosecution presented only a circumstantial case implicating the Petitioner. The witnesses who testified did not see who shot the victims. And the details of Mr. Lara s confession offer a plausible alternative explanation for what happened. A jury must be given the opportunity to weigh any conflicting evidence. STATEMENT OF FACTS At some point in January 2010, Detective Binger of the Chaostown Police Department arrived at the home Petitioner, Kenny Bearson. R. at 2. Detective Binger questioned Petitioner about his whereabouts on New Year s Eve Id. Petitioner informed Detective Binger that he spent the evening with a number of friends at a New Year s Eve party. Id. Detective Binger then asked Petitioner if he had any knowledge of a shooting that occurred on New Year s Eve. Id. Petitioner told Detective Binger that he knew nothing of the shooting, but that he was a high! 2!

7 school classmate of the victims. Id. Detective Binger then asked Petitioner if it was alright if he looked around the house. Id. Petitioner promptly responded that he did not want anyone nosing around his house. Id. Months later, Detective Binger, accompanied by three additional officers, returned to Petitioner s house for a second interview. R. at 4. As they approached, they noticed that the screen door was closed. Id. Detective Binger and his fellow officers stood on the stoop in front of the door and called out to see if anyone was home. R. at 5. A woman approached the closed screen door and identified herself as Caroline Bearson, Petitioner s youngest sister. Id. She immediately informed Detective Binger that Petitioner was not home. Id. Detective Binger then asked if they could come into the house, and the woman denied permission. Id. Ms. Bearson then informed the officers that she was undergoing chemotherapy treatment for cancer at the hospital in town and that her personal residence was three hours away. Id. She told the officers that her stay was temporary, only as long as it took for her to recover enough from the treatment so that she could return to her own home. Id. She also informed the officers that she was smoking marijuana for which she had a medicinal prescription. Id. Detective Binger asked Ms. Bearson for her prescription, but she stated that she did not have it with her. Id. Detective Binger then told Ms. Bearson that he would seek to obtain a search warrant, at which point she immediately gave the officers permission to come into Petitioner s home, Id. Once inside, Detective Binger proceeded to the living room and then to the kitchen where he observed a pawnshop receipt on the kitchen table.! 3!

8 Id. Detective Binger examined the receipt and noted that it showed that Petitioner had pawned several rifles at a pawnshop. Id. Immediately thereafter, Detective Binger left Petitioner s home and drove directly to the pawnshop to see if the pawned rifles where still at the shop. R. at 5 6. The pawned rifles were no longer there. Petitioner was later charged with two counts of murder. R. at 7. His trial attorney moved to suppress the pawnshop receipt as evidence at trial, arguing that the search and seizure violated his Fourth Amendment rights. Id. The trial judge denied the motion. Id. At trial, the only real evidence the prosecution introduced was the pawnshop receipt. Id. Petitioner was convicted on both counts of firstdegree murder. Id. A few days later, Detective Binger learned from a deputy in the County Sherriff s Office that another Chaostown resident, Leopold Lara Jr., had confessed to killing Billy Smith and Sally Jones. R. at 7. Deputy Laura Finster, Mr. Lara s niece, recounted to Binger that months earlier, an intoxicated Mr. Lara led her on a high-speed chase through Chaostown. R. at 7 8. Other witnesses reported that after Mr. Lara stopped his car, he took off on foot and attempted to flee. R. at 8. When the Deputy Finster finally caught and arrested him, he began to cry. Id. He then told her 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. Id. Deputy Finster then told Mr. Lara to be quiet and stop talking. Id. Passengers in Mr. Lara s vehicle told Finster that Lara had tried to take a gun from its holster to shoot at Deputy Finster during the! 4!

9 chase. Id. Rather than taking Mr. Lara to jail, Finster elected to take him home and cite him for speeding. Id. She did not write a report of the incident. Id. Finster also informed Detective Binger that Mr. Lara s father sold marijuana in Chaostown, and Lara sometimes worked for him. R She said that they often took guns in exchange for drugs. R. at 9. When Detective Binger later interviewed Mr. Lara, he denied making the statement. Id. He said he was intoxicated and had stated, Why don t you take me to jail for killing those kids. Id. One week later, Mr. Lara unexpectedly died. Id. Upon learning of Mr. Lara s statement to Finster, the Petitioner filed a motion for a new trial under Rule 33(b)(1) of the Federal Rules of Criminal Procedure. Id. The trial court denied the motion, and the Petitioner appealed. Id. The Thirteen Circuit consolidated this appeal with the Petitioner s earlier appeal of the Fourth Amendment issue, and affirmed the conviction. Id.! 5!

10 ARGUMENT I. The Fourth Amendment protects against the unreasonable, warrantless search of Petitioner s home and the unreasonable seizure of Petitioner s property. This Court s precedent squarely answers the question of who has authority to consent to a warrantless search of property. Only persons with common authority over the premises may consent to a warrantless search. Petitioner s sister lacked common authority over Petitioner s home; therefore, the search of the home was unreasonable. Items collected during unreasonable warrantless searches, as well as items collected where its incriminating nature is not immediately apparent in plain view during a warrantless search are unreasonable seizures. That evidence should be suppressed during a prosecution. The receipt taken from Petitioner s home was collected during an unreasonable warrantless search, and its incriminating nature was not immediately apparent; therefore, the receipt should have been suppressed during Petitioner s trial. A. Petitioner s sister lacked the requisite authority to consent to a warrantless search of Petitioner s property. Consent searches serve a legitimate and integral role in law enforcement investigations; however, there are important constitutional constraints. Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973). Lawful consent searches require law enforcement to obtain consent from a person with common authority over the premises or effects. United States v. Matlock, 415 U.S. 164, 171 (1974). Thirdpersons may give law enforcement consent to search another person s premises and its effects; however, their consent is only valid if they exercise control for most! 6!

11 purposes, and law enforcement reasonably believes they [have] the right to permit the inspection in his own right and that the others [occupants] have assumed the risk that one of their number might permit the common area to be searched. Id. at fn. 7 (discussing implicit expectations of parties exercising joint control of property). Moreover, the validity of warrantless consent searches also hinges on the police s reasonable belief that, at the time of entry, the party giving consent possessed common authority over the premises and its effects. Illinois v. Rodriguez, 497 U.S. 177, 186 (1990). Consent by a third party, even when accompanied by an explicit assertion that the person lives there, is insufficient to justify law enforcement s entry into the premises. Id. at 188. Officers must take into account the surrounding circumstances so that it is conceivable that a reasonable person could believe that the consenting party had authority over the premises. Id. This standard is objective and must be based on the facts available to the officer at the time of entry. Id. The Court need dwell no longer here. The surrounding circumstances indicate that the detective could not have reasonably believed that Ms. Bearson possessed common authority over Petitioner s premises. After initially denying the detective permission to enter the house, Ms. Bearson informed the detective that her personal residence was three hours away from Petitioner s house. R. at 5. She stated that her presence was temporary, only long enough for her to recover from a chemotherapy treatment. Id. Ms. Bearson was not a resident, co-inhabitant, cotenant, or occupant of the house. She was merely a guest, and as a guest, she lacked! 7!

12 common authority over the premises. Neither this Court nor any of the federal circuit courts have ruled that temporary guests have the authority to consent to a police search in the host s home. The Thirteenth Circuit s conclusion that a temporary guest possess common authority over another person s property thus only serves to underscore how far the Thirteenth Circuit has deviated from this Court s and other circuit precedents. As a factual matter, it is critically important to note that the detective that initially approached and asked Petitioner for consent to perform a warrantless search (and was denied permission) also conducted the warrantless search. Just recently, this Court dealt with a case where police intentionally sought permission from a third-party after the defendant declined to consent to a warrantless search. See Fernandez v. California, 134 S.Ct (2014). In discussing the scope of the Randolph exception, the Court goes to great length to emphasize that the exception only applies when the person that objects to the warrantless consent search is physically present. Id. at Justice Alito writes: Without questioning the prior holdings in Matlock and Rodriguez, this Court held that Janet Randolph's consent was insufficient under the circumstances to justify the warrantless search. The Court reiterated the proposition that a person who shares a residence with others assumes the risk that any one of them may admit visitors, with the consequence that a guest obnoxious to one may nevertheless be admitted in his absence by another. Id. at 1133 (quoting Georgia v. Randolph, 547 U.S. 103, 111 (2006)). The key phrase in the excerpt is a person who shares a residence with others. When two adults share a residence with one another, the logical implication is that there exists common authority amongst both parties. Here, that mutual! 8!

13 common authority does not exist. Not allowing an exception means that the sole resident of a home would no longer have complete authority over his castle, because police could sidestep the sole resident by going to a visiting third-party (when the sole resident is absent), threaten to obtain a search warrant, and then coercive them into consenting to a warrantless search. This would completely eviscerate Petitioner s Fourth Amendment protections from unreasonable searches. The Fernandez Court warned that allowing the defendant s objection to remain effective until he changed his mind and withdrew consent would create significant line-drawing issues regarding how long the objection could remain effective. Fernandez, 134 S.Ct. at However, allowing the sole resident s objection to remain in place until he or a person that later assumes common authority change their minds and withdraw the objection would avoid this parade of horribles. Such a rule would preserve a sole resident s Fourth Amendment protections by ensuring that his and only his consent would authorize a warrantless search. This formulation would resolve the Court s hypothetical scenario in which a husband and wife owned a house as joint tenants and that the husband, after objecting to a search of the house, was convicted and sentenced to a 15 year prison term. Fernandez, 134 S.Ct. at First, under both the current standard and the proposed exception, the wife would be able to consent to a warrantless search if her husband is absent, because she also possesses common authority. Second, and perhaps most important, once a defendant goes to jail, more often that not, they grant common authority to their property to another person during the course of! 9!

14 their incarceration. Therefore, the risk of an incarcerated person maintaining their objection to a warrantless search in perpetuity is quite small. B. The plain view exception does not apply, because the property seized fails the Horton test for the lawfulness of a warrantless seizure. The Fourth Amendment also protects against the unlawful seizure of property found at Petitioner s house. During the course of a legitimate warrantless consent search, police often seize items related to an investigation. The Court has explicitly stated that three conditions must be met for a warrantless seizure of property to remain valid. First, the officer must lawfully be in the place where he discovered the evidence. Horton v. California, 496 U.S. 128, (1990). Second, the item must be in plain view of the officer. Id. And third, the incriminating nature of the evidence must be immediately apparent. Id. The Court s inquiry into the permissibility of the seizure of Petitioner s property need not be extensive, because the initial condition was not met. As stated above, Ms. Bearson lacked the requisite authority to give consent to a warrantless search of Petitioner s house. She was not a resident, co-inhabitant, co-tenant, or occupant of the house. Therefore, she lacked the common authority necessary the give consent. Even if the Court continues its inquiry beyond the review of the first necessary condition, the third condition weighs heavily in Petitioner s favor. The plain view doctrine requires the incriminating nature of items in the plain view of an officer to be immediately apparent. Horton, 496 U.S. at 136. Immediately apparent means that at the time police viewed the object to be! 10!

15 seized, they must have probable cause to believe that the object is contraband or evidence of a crime. Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971). The underlying purpose of the immediately apparent requirement is to prevent exploratory rummaging in a person's belonging. Id. This Court has not articulated what factors should be used to determine what is immediately apparent; however, the Sixth Circuit has developed a list of three factors, none of which are necessary, but all of which are instructive is assessing whether an incriminating seized object is immediately apparent. See United States v. Garcia 496 F.3d 495, 510 (6th Cir. 2007). The circuit court reviews whether there exist a nexus between the seized object and the items particularized in the search warrant 1, whether the intrinsic nature or appearance of the seized object gives probable cause to believe that it is associated with criminal activity, and whether the executing officers can, at the time of discovery of the object on the facts then available to them, determine probable cause of the object's incriminating nature. Id. An object's incriminating nature is not immediately apparent if it appears suspicious to an officer but further investigation is required to establish probable cause as to its association with criminal activity. Shamaeizadeh v. Cunigan, 338 F.3d 535, 555 (6th Cir.2003) (quoting United States v. McLevain, 310 F.3d 434, 443 (6th Cir.2002). In addition, the officer must recognize the incriminating nature of an object as a result of his immediate or instantaneous sensory perception. Garcia 496 F.3d at 512.!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 1!The!present!case!was!a!warrantless!search;!therefore,!police!did!not!have!warrant!to! compare!the!seized!object!with!items!particularized!in!a!warrant.!! 11!

16 Here, the incriminating nature of the pawnshop receipt that was unlawfully seized was not immediately apparent. First, the intrinsic nature or appearance of the seized receipt could not have reasonably given the officer probable cause to believe that it was associated with criminal activity. Pawnshop receipts (tickets) are merely small pieces of paper with a brief description of the pawned item, credit agreement information, and other miscellaneous information. Without close examination, pawnshop receipts are virtually indistinguishable from other credit agreements, receipts, or notes. Moreover, it is far-fetched to conclude that immediate or instantaneous sensory perception of the officer yielded probable cause. Given the surrounding circumstances and the lack of facts available to the officer, one cannot conclude that a quick glance at a piece of paper on a kitchen table could produce probable cause that Petitioner committed a crime. Only after the officer conducted a further investigation by going to the pawnshop and attempting to verify that a.30 caliber rifle was at the store could probable cause have plausibly arisen. Since the potentially incriminating evidence could not have been immediately apparent to the officer at the time of the unreasonable search, the plain view doctrine should not have applied, and the receipt that was unreasonably seized should have been suppressed.! 12!

17 II. The Exclusion of Mr. Lara s confession violated the Due Process Clause by depriving Petitioner of his constitutional right to present witnesses in his own defense. When the district court wrongfully excluded evidence of Mr. Lara s confession, it deprived Petitioner of the ability to present one of the most important pieces of evidence in his case. Few rights are more fundamental than that of an accused to present witnesses in his own defense. Chambers v. Mississippi, 410 U.S. 284, 302 (1973). This right is a fundamental element of due process of law. Washington v. Texas, 388 U.S. 14, 19 (1967). Because the confession is admissible under an exception to the hearsay rule and its exclusion was not harmless, Petitioner s motion for a new trial should have been granted. A. Hearsay evidence of the confession was admissible as a Statement Against Interest. Mr. Lara s confession is excepted from the rule against hearsay as a statement against penal interest. Under rule 804 of the Federal Rules of Evidence, an unavailable witness s out of court confession is not excluded by the rule against hearsay if it is [a] statement that (A) a reasonable person in the declarant s position would have made only if the person believed it to be true because, when made, it... had so great a tendency... to expose the declarant to civil or criminal liability; and (B) is supported by corroborating circumstances that clearly indicate its trustworthiness. Fed. R. Evid. 804(3). Here, it is undisputed that Mr. Lara has died and is unavailable to testify. And his confession to multiple homicides would clearly expose him to criminal liability. His statement to Deputy Finster that he was sorry he killed those kids! 13!

18 includes the assertion that he did in fact kill them. Such a statement would be admissible against him in a subsequent trial as an opposing party statement. See Fed. R. Evid. 801(2). And even if he did not mean to shoot the girl, he implicated himself in some degree of homicide, be it murder or something requiring a lesser showing of mens rea. Coupled with his identification of the weapon he used, Mr. Lara s statements view[ed] in [their] context expose him to criminal liability. After all, [e]ven statements that are on their fact neutral may actually be against the declarant s interest. Williamson, Williamson v. United States, 512 U.S. 594, 603 (1994). And Rule 804(b)(3) is founded on the commonsense notion that reasonable people, even reasonable people who are not especially honest, tend not to make self-inculpatory statements unless they believe them to be true. Id. at 599. Next, Mr. Lara s confession is sufficiently supported by corroborating circumstances to justify its exception from the general rule against hearsay. The corroboration requirement arose from a suspicion that criminal defendants offering evidence of out-of-court, third-party confessions may have fabricated their occurrence or contents in order to exculpate themselves. Fed. R. Evid. 804, advisory committee note (1972 Proposed Rules, Exception 3). Thus [t]he requirement of corroboration should be construed in such a manner as to effectuate its purpose of circumventing fabrication. Id. And a district court can abuse its discretion... when it refuses to allow into evidence statements that are corroborated by other substantial evidence.! 14!

19 In this case, Mr. Lara s confession is sufficiently corroborated both by physical and other circumstantial evidence. He told Deputy Finster that he used a.30 caliber rifle. The police determined that Billy Smith and Sally Jones were killed by.30 caliber bullets. And since Deputy Finster has evidence that Mr. Lara sometimes sells marijuana for his father in exchange for guns, Mr. Lara has access to weapons. Additionally, given Mr. Lara s involvement in selling drugs, the anonymous call to the Chaostown police identifying the double homicide as a drug deal gone bad supports his involvement. The forensic evidence further corroborates Mr. Lara s statement that he did not mean to shoot the girl. Police investigators determined that the shooter had been standing by Billy s side of the car, and that two of the three bullets that hit Sally were pass through bullets from the shots to Billy. This is consistent with Mr. Lara attempting to shoot Billy during a failed drug deal, and accidently hitting Sally. B. The limited evidence supporting the conviction shows that the exclusion of Mr. Lara s confession was not harmless beyond a reasonable doubt. Petitioner s motion for a new trial should be granted because the district court s error in denying him the right to present a complete defense was not harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24 (1967). In Chapman, this Court held that once a defendant has shown a constitutional error, his conviction is to be reversed unless the court is able to declare a belief that it was harmless beyond a reasonable doubt. Id. Given the! 15!

20 circumstantial nature of the limited evidence against Petitioner and the absence of a motive, there is certainly reason to doubt that the jury would have convicted him had he been allowed to present Mr. Lara s confession. The prosecution presented only three categories of evidence at trial: testimony from Jessica Minder and Robert Clark, the pawnshop receipt, and evidence of the victim s gunshot wounds. First, neither Ms. Minder nor Mr. Clark saw Petitioner shoot the victims or ever handle a firearm that evening. Neither was able to see what was happening by the victims car when the popping noises happened. Second, Mr. Lara s confession offers a plausible alternative explanation that weakens undercuts the weight of the pawnshop receipt. Mr. Lara specifically admitted using a.30 caliber rifle. Weighing conflicting pieces of evidence is exactly what juries are called on to do, and by withholding evidence of the alternative explanation, the district court deprived the jury of its ability to do just this. Given the weaknesses in the prosecution s case against Petitioner and the plausibility of the alternative explanation offered by Mr. Lara s confession, this Court cannot say beyond a reasonable doubt that the exclusion of the confession was harmless error. Accordingly, the conviction must be vacated, and Petitioner s motion for a new trial should be granted.! 16!

21 CONSLUSION The!Court!should!reverse!the!decision!below.!! Respectfully!submitted,!! Team!28!! Counsel!of!Record! Counsel!for!Petitioner!! 17!