FEDERAL BAR ASSOCIATION Seventeenth Annual Thurgood A. Marshall Moot Court Competition March, 2014 IN THE SUPREME COURT OF THE UNITED STATES

Transcription

1 FEDERAL BAR ASSOCIATION Seventeenth Annual Thurgood A. Marshall Moot Court Competition March, 2014 IN THE SUPREME COURT OF THE UNITED STATES ROBERT BLACK Petitioner v. THE UNITED STATES Respondent ON APPEAL FROM THE UNITED STATES CIRCUIT COURT OF APPEAL FOR THE THIRTEENTH CIRCUIT BRIEF FOR RESPONDENT Team 39 February 28, 2014

2 TABLE OF CONTENTS Table of Authorities....iii Page Questions Presented 1 Statement of Jurisdiction.1 Summary of Argument...1 Statement of the Case...2 Statement of Facts... 3 Argument.7 I. THE WARRANTLESS RECOVERY AND RECONTSRUCTION OF SHREDDED COMMERCIAL DOCUMENTS FROM AN UNLOCKED THIRD-PARTY CONTRACTOR S RECEPTACLE DOES NOT VIOLATE THE PETITIONER S FOURTH AMENDMENT RIGHTS UNDER SETTLED FOURTH AMENDMENT ANALYSIS A. Black s Subjective Expectation of Privacy Does not Create an Objectively Reasonable Expectation of Privacy...12 B. The District Court Was Right to Deny Black s Motion to Suppress Because the Motion to Suppress cannot be granted to parties whose Fourth Amendment Constitutional Rights Were Not Violated...14 II. MR. FRAZIER S SECRET CONSPIRATORIAL CRIMINAL ACTIVITY AND SUBSEQUENT INDICTMENT DID NOT CONSTITUTE A VIOLATION OF MR.BLACK S SIXTH AMENDMENT RIGHTS UNDER THE STRICKLAND STANDARD...16 A. There is No Evidence that Mr. Frazier s Performance was Deficient, Such That He Made Errors so Serious That He was Not Functioning as Appellant s Sixth Amendment Guaranteed Counsel...17 B. As Frazier Did Not Commit Any Serious Errors in Representing Appellant, His Representation Could Not Have Prejudiced the Appellant III. FRAZIER DOES NOT FALL UNDER THE CRONIC EXCEPTION AND THEREFORE IS REQUIRED TO SHOW PREJUDICE...19 i

3 A. Neither Frazier nor Black Objected to the Representation Relationship, thus Automatic Reversal Under Holloway is Inappropriate B. If no Objection is Made by Either Counsel or Client, Demonstrable Defects of Representation Must be Present for a Sixth Amendment Violation to Have Occurred C. Were this Court to Adopt a Per Se Sixth Amendment Violation Standard in Cases Where Representing Attorneys Would be Implicated in Their Clients Crimes, Black Would Fail to Meet that Standard...24 Conclusion.26 ii

4 TABLE OF AUTHORITIES Cases Page California v. Ciraolo, 476 U.S. 207 (1986) California v. Greenwood, 486 U.S. 35 (1988)... passim Culyer v. Sullivan, 446 U.S. 335 (1980). passim Holloway v. Arkansas, 435 U.S. 475(1978) Katz v. United States, 389 U.S. 347 (1967)....8, 14 Kyllo v. United States, 533 U.S. 27 (2001)... 8 Mickens v. Taylor, 535 U.S. 162 (2002)... passim Minnesota v. Carter, 525 U.S. 83 (1998) Oliver v. United States, 466 U.S. 170 (1984)... 8 Rakas v. Illinois, 439 U.S. 128 (1978) Smith v. Maryland, 442 U.S. 735 (1979) Strickland v. Washington, 466 U.S. 668 (1984) United States v. Cronic, 466 U.S. 648 (1984)...19 United States v. Payner, 447 U.S. 727 (1980) Wood v. Georgia, 450 U.S. 261 (1981)...22 United States v. Fulton, 5 F.3d 605, 611 (2d Cir. 1993)...25 United States v. Hedrick, 922 F.2d 396 (7th Cir. 1991) United States v. Jones, 132 S. Ct. 945, 951 (2012) United States v. Loughren, 239 F. App'x 289 (7th Cir. 2007)....11, 14 United States v. Mustone, 469 F.2d 970 (1st Cir. 1972) United States v. Reicherter, 647 F.2d 397 (3d Cir. 1981) iii

5 United States v. Scott, 975 F.2d 927 (1st. Cir. 1992) United States v. Trice, 864 F.2d 1421 (8th Cir. 1988) State v. Ranken, 21 A.3d 597 (Del. 2011)...9 Constitutional Provisions U.S. CONST. amend. IV... passim U.S. CONST. amend. VI... passim Statutes 28 U.S.C. 1254(1)...1 iv

6 QUESTIONS PRESENTED 1. Did the Court of Appeals err in holding that the DEA s recovery and reconstruction of shredded documents from an unsecured third-party contractor s garbage container on the curb of a public street did not violate the original owner s Fourth Amendment rights? 2. Does a defendant s unindicted counsel s involvement in illegal activity, derivative of the illegal activity his client is charged with, create a per se prejudicial conflict of interest, depriving the defendant of his Sixth Amendment right to effective counsel, or must prejudicial effect still be demonstrated, as in every other scenario where conflict of interest claims arise? STATEMENT OF JURISDICTION The judgment of the Court of Appeals has been entered. The petition for a writ of certiorari was timely filed, and the court has granted that writ. The jurisdiction of this Court rests on 28 U.S.C. 1254(1). SUMMARY OF ARGUMENT The Court should find that the petitioner s Fourth Amendment rights were not violated when DEA agents recovered and reconstructed shredded documents from an unlocked thirdparty contractor s receptacle on a public street. Warrantless searches and seizures do not violate the Fourth Amendment, unless the defendant manifests a subjective expectation of privacy in the items at issue that society accepts as objectively reasonable. The capacity to claim the protection of the Fourth Amendment depends upon whether the person, who claims the protection of the Amendment, has a legitimate expectation of privacy in the invaded place. A subjective expectation of privacy is legitimate if it is one that society is prepared to recognize as reasonable. The petitioner, Mr. Black, did not have a reasonable expectation of privacy in the unsecured garbage bin located on a public street. Consequently, Mr. Black s Fourth Amendment 1

7 rights were not violated by the recovery and reconstruction of the shredded documents from the third-party contractor s (Paper Fortress) rubbish bin. The Court should affirm the decisions of the 13th Circuit Court of Appeals. This Court should find no deprivations of Black s Sixth Amendment right to effective counsel based on the standard in Strickland. To qualify under this standard petitioner must show that his counsel made so serious a mistake that it was likely outcome determinative. The record contains no such error, or action that could be construed as such an error on the part of petitioner s former counsel, Mr. Frazier. This lack of error means the reviewing court has no basis, under Strickland, to reverse the lower court verdict on Sixth Amendment grounds. This Court also should not find that petitioner s case fits the exception under Cronic. Cronic grants automatic reversal in cases where defense counsel has a conflict of interest, such that the court presumes the defendant s right to effective counsel did not take place, and as such the lower court s judgment is void. Here, however, petitioner cannot meet the requirements to gain reversal as neither he nor Mr. Frazier ever objected to their relationship, and there is no demonstrable effect on Mr. Frazier s actions regarding his course of action on behalf of his client based on his alleged theoretical conflict of interest. As such, petitioner s Sixth Amendment right was not violated, and this Court should affirm the lower court s findings. STATEMENT OF THE CASE Procedural History Respondent indicted petitioner in August of 2011, in the U.S. District Court for the District of Jensen on numerous charges of violations of the Federal Controlled Substances Act, with both indicted and unindicted co-conspirators. (R. at 3.) Prior to the trial, defense counsel Larry Frazier filed and argued several pretrial motions to suppress evidence obtained in an 2

8 allegedly illegal search and seizure by the DEA, in violation of petitioner s Fourth Amendment rights. (R. at 3.) These motions were denied. (R. at 4.) This case went to trial in August of (R. at 4.) There petitioner was convicted by a federal jury of all charges. (R. at 4.) Ten days later, petitioner made a timely motion for a new trial under Rule 33(b)(2) of the Federal Rules of Criminal Procedure. (R. at 4.) Petitioner s motion attempted to relitigate the motion to suppress evidence from the alleged illegal search and seizure. (R. at 5.) Petitioner further argued that at trial he was deprived of his Sixth Amendment right to effective counsel. His former attorney, Frazier, had been recently indicted in a money laundering scheme with one of Black s co-conspirators, and during trial petitioner argued, Frazier was not representing Blacks interests, but rather those of Jefferson Redman. (R. at 5 6.) This motion was denied by the district court on both issues. (R. at 6.) Regarding the Sixth Amendment issue, the court held that there was no conflict of interest, and thus, it was not required to make a factual finding in regards to whether or not Frazier s performance as counsel was prejudicial. (R. at 6.) Petitioner then filed a timely appeal to the U.S. Court of Appeals for the Thirteenth Circuit. (R. at 6.) On appeal, petitioner argued the same two issues. (R. at 6.) The Thirteenth Circuit affirmed petitioner s conviction and denied petitioner s motion on both issues, affirming the district court s ruling. (R. at 6.) Petitioner then made a timely petition for a writ of certiorari to this Court. (R. at 7.) STATEMENT OF FACTS In the spring of 2011, the DEA began investigating what agents believed was a high-volume, industrial-level methamphetamine manufacturing operation in the suburbs of Jensen s capital city. (R. at 1.) DEA Agent Frank Schroder was in charge of the investigation. 3

9 He believed a local business owner, named Robert Black, was running the methamphetamine lab, and was using A&L to purchase the equipment and chemicals necessary to manufacture the drugs. (R. at 1.) In an effort to gather evidence, Agent Schroder and his team set up surveillance on A&L and Black. In the early evening hours of July 6, 2011, Agent Schroder saw Black wheel a large blue garbage container out of one of the garage bays at A&L to the curb of the public street in front of the building. The container had the words Paper Fortress, Inc. and an emblem that looked like a castle printed on its side. Black then went back inside the building. (R. at 1.). A few minutes later Black returned, carrying a cardboard box. He opened the blue garbage container and poured what appeared to be a load of shredded paper from the box into the container. Black then locked the A&L building and drove home, leaving the Paper Fortress container on the curb. (R. at 2.) As soon as Black left, Agent Schroder left his surveillance location and approached the blue container. Agent Schroder found that the container had an attached, hinged lid that was unsecured with any kind of lock. He opened the lid and found a pile of shredded documents inside. (R. at 2.) Under the shredded documents was a much larger pile of intact documents. Agent Schroder quickly called in members of his team, and within minutes they transferred the contents of the Paper Fortress container into boxes, which were later taken to the local DEA field office for review. (R. at 2.) A few minutes after the agents finished loading the documents, Agent Schroder saw a large box truck with the same Paper Fortress logo on its side pull up in front of A&L. Two men got out of the truck, unlocked and opened the back of the truck, and went to collect the blue container at the curb. (R. at 2.) When they picked up the container they discovered that it was 4

10 empty. Seeing nothing to collect, the two men closed and locked their truck and drove off, leaving the container where they had found it at the curb in front of A&L. (R. at 2.) Later that evening, Agent Schroder and his team began going through the recovered documents from the A&L Paper Fortress container. The team first went through the intact documents and found nothing of any evidentiary value to the investigation. The agents then turned their attention to the shredded documents and were ultimately able to reconstruct the shredded documents using sophisticated scanning and optical character-recognition software. (R. at 2.) Eventually, the information found in the shredded documents, together with the evidence recovered from the search, 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 cooking methamphetamine. (R. at 3.) In August 2011, Black was charged with violations of the Federal Controlled Substances Act and associated conspiracies with both indicted and unindicted co-conspirators. (R. at 3.) Before trial, defense counsel Larry Frazier filed and argued several pretrial motions. Among those motions was a motion to suppress, in which Frazier argued that the evidence obtained as a result of the search, seizure and reconstruction of the shredded documents from the Paper Fortress container should have been suppressed because the seizure violated Black s rights under the Fourth Amendment to the United States Constitution. (R. at 3.) At the hearing on the motion, Frazier called Joan Parker, a customer service representative from Paper Fortress, to the stand. Parker 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.) Parker testified that Black contracted with Paper Fortress, in 5

11 March 2011, for a bundle of its most basic services. Defense counsel offered a copy of the service contract between Paper Fortress and A&L in support of the motion to suppress. The contract provided that for a monthly fee of sixty-five dollars, Paper Fortress would provide weekly, curbside pickup of one standard container of documents for shredding and recycling. The contract defined a standard container as a sixty-five gallon, plastic, wheeled container with an attached, hinged lid. This container was provided to A&L as part of the contract terms for a refundable deposit of $100. A&L was required to use the standard container for all paper to be picked up by Paper Fortress. (R. at 4.) Parker further testified that, in her sales pitch to Black, she had offered him several of Paper Fortress s more secure services. Among those services, which Black declined, were (1) inoffice document pickup, as opposed to curbside; (2) a secure document container that allowed the customer to keep documents to be shredded under lock and key until they were in the hands of Paper Fortress; and (3) secure shredding and incineration services, as opposed to standard recycling. (R. at 4.) In an effort to be candid and to sell Black on a more expensive service, Parker had also told Black that although his documents would first be shredded thoroughly by Paper Fortress, under the basic service contract the shredded documents would then be sent to a public, state-run paper-recycling facility. Parker testified that Black seemed unconcerned about what happened to his papers after they were shredded, and instead signed up for the basic service plan. (R. at 4.) In support of the motion to suppress, defense counsel argued to the district court that the DEA violated Black s Fourth Amendment rights when it seized and reconstructed the documents that Black had left out for pickup by Paper Fortress. The court disagreed with defense counsel s 6

12 arguments and denied the motion. In August 2012, Black was tried before a federal jury and convicted of all charges. (R. at 4.) Two days after Black s conviction, Frazier was indicted by a grand jury in the Eastern District of Louisiana based on an investigation by the Treasury Department. (R. at 5.) The department had been investigating Frazier and one of Black s business partners, Jefferson Redman. (R. at 5.) Sometime during the pendency of Black s original case, Frazier and Redman became the subject of a Suspicious Activity Report by the Treasury Department. (R. at 5.) This investigation remained classified until the indictment was unsealed in the days following Black s conviction, and neither the DEA nor any member of the Jensen U.S. Attorney s Office knew of the investigation. (R. at 5.) Frazier and Redman were allegedly laundering the money from the methamphetamine operation in Louisiana. (R. at 5.) Until the record was unsealed neither the DEA nor the Jensen U.S. Attorney s office knew of a conspiratorial connection between Redman, Frazier, and Black regarding the charges at hand. (R. at 5.) Black too disclaimed any knowledge of the money laundering operation for his business conducted by his business partner and lawyer. (R. at 5.) Once Frazier was arrested, Black obtained as counsel a federal public defender, Mr. Cohen. (R. at 5.) Cohen filed all subsequent motions and appeals on Black s behalf. (R. at 5 7.) ARGUMENT I. THE WARRANTLESS RECOVERY AND RECONTSRUCTION OF SHREDDED COMMERCIAL DOCUMENTS FROM AN UNLOCKED THIRD-PARTY CONTRACTOR S RECEPTACLE DOES NOT VIOLATE THE PETITIONER S FOURTH AMENDMENT RIGHTS UNDER SETTLED FOURTH AMENDMENT ANALYSIS. The court of appeals correctly held that Black s Fourth Amendment rights were not violated by the DEA s recovery and reconstruction of petitioner s shredded documents. We respectfully request the Court affirm. 7

13 In 1967 the Court established that the Fourth Amendment protects people not places. 1 Katz v. United States, 389 U.S. 347, (1967). In his concurrence, Justice Harlan explicated the test for whether a person s privacy interest is entitled to Fourth Amendment protection. Specifically, an individual has a legitimate expectation of privacy where; first that person exhibited an actual (subjective) expectation of privacy and, second, that expectation is one society is prepared to recognize as reasonable. Id. at 361. In California v. Greenwood the court further refined the Fourth Amendment legitimate expectation of privacy standard. The societal understanding of garbage, as a thing to be discarded, and the location of the garbage i.e. placement on a public street, are factors the court considers in determining if a person s subjective expectation of privacy is objectively reasonable. California v. Greenwood, 486 U.S. 35, 43 (1988) (quoting Oliver v. United States, 466 U.S. 170,178 (1984)). Greenwood held that the warrantless search and seizure of garbage bags left at the curb, outside the Greenwood house, did not violate the Fourth Amendment because there was no objectively reasonable expectation of privacy in trash left on the curb outside of a home. Id. at 40. There was no objectively reasonable expectation of privacy because to society, garbage bags left on the curb, outside the home, ready for their customary pick up by a third-party are understood to be readily accessible to the public, members of which include animals, children, scavengers [and] snoops. Id. If the public has such ready access, it is unreasonable to ask or expect law enforcement to avoid it. Id. 1 It is equally well settled that searches and seizures of property in plain view are presumptively reasonable Whether that property is residential or commercial, the basic principle is the same: What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. Kyllo v. United States, 533 U.S. 27, 42 (2001). 8

14 Greenwood s conclusion that society would not accept as reasonable [the] claim to an expectation of privacy in trash left for collection in an area accessible to the public was supported by the unanimous rejection of similar claims by the Federal Courts of Appeals and the near unanimous majority of state appellate decisions which also concluded that the police may conduct warrantless searches and seizures of garbage in discarded public areas. Greenwood, 486 U.S. at Greenwood also clarified that federal courts are to conduct their Fourth Amendment analysis apart from a reliance on state property laws. Id. at 43. While state courts are free to follow the Supreme Court s Fourth Amendment analysis, they are not limited by it. Consequently states, under the authority of their constitutions, can find a reasonable expectation of privacy in trash left outside the curb of a home or office under their constitutions while reaching a different analysis under the federal Fourth Amendment Analysis. See State v. Ranken, 25 A.3d 845, (Del. Super. 2010), aff'd, 21 A.3d 597 (Del. 2011) (Where the court noted that under the Constitution Ranken was bound by Greenwood and had no reasonable expectation of privacy but it, the state court, could choose to hold that he did have a reasonable expectation of privacy in his trash). For the federal courts, reference to the concept of abandonment is available for use in determining whether or not there is a privacy interest. A person who places trash at the curb abandons it, and [i]mplicit in the concept of abandonment is a renunciation of any reasonable expectation of privacy in the property abandoned. United States v. Mustone, 469 F.2d 970, 972 (1st Cir. 1972). In United States v. Jones, the court asserted the relevance of property law as an alternative inquiry in the determination of whether or not a reasonable expectation of privacy exists; [O]ur very definition of reasonable expectation of privacy... we have said to be an 9

15 expectation that has a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society. United States v. Jones, 132 S. Ct. 945, 951 (2012) (quoting Minnesota v. Carter, 525 U.S. 83, 88, (1998). However, in Greenwood, the Court clearly asserted that the appropriate inquiry for the reasonable expectation of privacy in trash left on a curb is whether or not the subjective expectation is accepted by society. It is settled that in cases dealing with a reasonable expectation of trash set out on the curb, Greenwood governs. United States v. Trice, 864 F.2d 1421, 1423 (8th Cir. 1988). The case at bar was initiated in federal district court. (R. at 3.) As such, the lower courts were bound by Greenwood. The dispositive question is whether society is willing to accept Black s claim for a subjective right of privacy, to his shredded garbage, as an objectively reasonable one. This inquiry is answered by considering the location of the garbage. Thus the proper focus for the district court and the court of appeals was whether the garbage was readily accessible to the public so as to render any expectation of privacy objectively unreasonable. 2 United States v. Hedrick, 922 F.2d 396, 400 (7th Cir. 1991). The DEA agents recovered the shredded documents from the large blue garbage container after Black moved it from his garage to the curb of the public street in front A& L, his commercial building. (R. at 1.) The curb of a public street is readily accessible to the public; consequently, garbage placed on the curb of a public street is not accepted to have an objective reasonable expectation of privacy. 2 The determination of whether a person has a constitutionally protected reasonable expectation of privacy, involves two inquiries of whether the individual (1) manifested a subjective expectation of privacy in the object of the challenged search, and (2) whether society is willing to recognize that expectation as reasonable. California v. Ciraolo, 476 U.S. 207, 106 (1986). 10

16 United States v. Loughren, 239 F. App'x 289, (7th Cir. 2007); California v. Greenwood, 486 U.S. 35, 37 (1988). Having placed the trash in an area particularly suited for public inspection and, in a manner of speaking, public consumption, for the express purpose of having strangers take it, it is inconceivable that the defendant intended to retain a privacy interest in the discarded objects. If he had such an expectation, it was not reasonable. United States v. Reicherter, 647 F.2d 397, 399 (3d Cir. 1981). The placement of the Paper Fortress garbage bin, on the curb, removed Black s privacy expectation, in the documents therein, from the objectively reasonable set of privacy expectations acceptable to society. The rubbish bin was unsecured; anyone could have lifted up the lid, riffled through the documents, and or taken them out. Moreover, anyone walking or driving along the street could have observed Black when he stood outside his building, on or near the public street dumping the shredded documents into the paper fortress rubbish bin. (R. at. 2). The fact that Agent Schroder was able to observe Black from his covert location does not negate the fact that Black acted in such a manner that another member of the public could have observed him as well. In deference to that fact, it can be presumed that Black s actions fall within that realm of knowing exposure. 3 It is common knowledge that if one is standing on the curb of a public street, other people can observe what one is doing if they can see you. This makes it unreasonable to expect that when one places an unsecured rubbish bin on the public curb, and then dumps shredded documents into that unsecured rubbish bin, merely closing the lid will secure a right to privacy protected under the Fourth Amendment. The court of appeals correctly affirmed the District Court s rejection of Black s claim for a Fourth Amendment privacy violation. 3 Where garbage is readily accessible from the street or other public thoroughfares, an expectation of privacy may be objectively unreasonable because of the common practice of scavengers, snoops, and other members of the public in sorting through garbage. In other words, garbage placed where it is not only accessible to the public but likely to be viewed by the public is knowingly exposed to the public for Fourth Amendment purposes. United States v. Hedrick, 922 F.2d 396, 400 (7th Cir. 1991). 11

17 A. Black s Subjective Expectation of Privacy Does not Create an Objectively Reasonable Expectation of Privacy. In support of the motion to suppress, Black s counsel focused on the service contract with Paper Fortress. This does nothing more than establish Black s subjective expectation of privacy in his documents. It does not establish that such an expectation was objectively reasonable and thereby protected under the Fourth-Amendment. Because Black s contract with Paper Fortress was like a contract with a regular third-party garbage disposal contractor, in that the shredded documents were slated for curbside pick-up in an unsecured rubbish bin, the court of appeals was correct to deny Black s motion to suppress the evidence. The court has recognized that an individuals subjective expectation of privacy, as evidenced by his or her attempts to protect the secrecy of information is not itself sufficient to create a constitutionally protected right of privacy. Greenwood, 486 U.S. 35 at In the case of the criminal defendant seeking to suppress evidence, from an alleged violation of his or her Fourth Amendment rights, to garner an objective expectation of trash, said individual must do more than place trash for collection in a trash can for the express purpose of conveying it to a third party. U.S. v. Trice, 864 F.2d at The First Circuit Court of Appeals dealt with this issue in U.S. v. Scott, where it said: [I]rrespective 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. The shredded documents were deposited in a public place and in the control of third parties, without any limitation as to their use. United States v. Scott, 975 F.2d 927, 929 (1st Cir. 1992). Even when an individual takes steps, like shredding a sensitive document, to reduce the likelihood of someone reading it, if that individual treats it like ordinary trash, via its disposal, that individual loses his legitimate expectation of privacy with respect to the shredded document. Id. In its discussion reversing the 12

18 district court s ruling, the court explained that when a criminal defendant makes a claim that his or her privacy was violated because law enforcement was able to recover and reconstruct incriminating evidence from a garbage bin open to public access, the criminal makes an invalid claim. The expectation of privacy has been practically eliminated by the citizen s own action Law enforcement are entitled to apply ingenuity to collect freely available evidence from the public domain. The mere fact that appellant shredded his garbage before he placed it outside of home does not create a reasonable heightened expectation of privacy under the Fourth Amendment. Appellant still discarded this garbage in an area suited for public inspection and consumption. Id. at 930. There is no evidence in the record that Agent Schroder s surveillance techniques involved more than patient, pedestrian, observation which facilitated his being in the right place at the right time. Agent Schroeder merely took advantage of information that was made publicly accessible by Black s actions. Black chose a contract that designated the curb of a public street as the collection spot for the Paper-Fortress rubbish bin; Black chose to transfer his shredded documents to the Paper Force bin on the curb, out in the open air where anyone could observe his actions and if so inclined open the lid to snoop. (R. at 2, 4.) There was nothing distinct about Paper Fortress s garbage bin or basic package pick-up method. It was a standard container sixty-five gallons, plastic, wheeled container with an attached, hinged lid. (R. at 4.) Any observer could have assumed, from his actions on record, that Black merely shredded some documents, poured them in container and left the garbage bin outside because it was pick-up day. (R. at 2). Most garbage bins have unsecured lids and most people leave their trash out in the same way with the understanding that trash placed on the curb is susceptible open to public access. At most Black s actions demonstrate his efforts to destroy evidence of links to his methamphetamine operation. The court of appeals correctly affirmed the lower court in holding 13

19 that Black did not have an objective expectation of privacy in the large, blue, unsecured garbage bin from which the FBI recovered and reconstructed the shredded documents. B. The District Court Was Right to Deny Black s Motion to Suppress Because the Motion to Suppress cannot be granted to parties whose Fourth Amendment Constitutional Rights Were Not Violated. The court of appeals correctly affirmed the district court s denial of Black s motion to suppress, because Black had no legitimate expectation of privacy in the Paper Fortress rubbish bin into which he poured his shredded documents. A court can only grant a motion to suppress if the moving party was aggrieved by an unlawful search or seizure, i.e. the search and seizure directly violated the movant s Fourth Amendment rights. U.S. v. Payner, 447 U.S. 727, 731 (1980). In keeping with the Katz inquiry, as refined by Greenwood, the Fourth Amendment violation must be an invasion of the moving parties legitimate expectation of privacy. 4 In U.S. v. Loughren the Seventh Circuit Court of Appeals affirmed the District Court s rule on a criminal defendant s motion to suppress. Counsel firsts considers whether Loughren can argue that the district court erred in denying his motion to suppress. because our society would not accept as reasonable a claim to an expectation of privacy in trash left for collection in an area accessible to the public, the garbage was not afforded Fourth Amendment protection. United States v. Loughren, 239 F. App'x 289, (7th Cir. 2007). The court is aware of the social consequences of suppressing evidence. Namely, the chance that a criminal might be able to escape justice if the government is unable to sustain its charges without evidence procured in violation of the fourth amendment. That is why in U.S. v. Payner the court noted; Our cases 4 A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed.... And since the exclusionary rule is an attempt to effectuate the guarantees of the Fourth Amendment it is proper to permit only defendants whose Fourth Amendment rights have been violated to benefit from the rule's protections. Rakas v. Illinois, 439 U.S. 128, 134 (1978). 14

20 have consistently recognized that unbending application of the exclusionary sanction would impede unacceptably the truth-finding functions of judge and jury. The same societal interests are at risk when a criminal defendant invokes the supervisory power to suppress evidence seized in violation of a third party's constitutional rights. U. S. v. Payner, 447 U.S. 727, 734 (1980). Accordingly, the court requires that all individuals who seek a motion to suppress actually have had a legitimate invasion of their objectively reasonable expectation of privacy. In Smith v. Maryland, the court noted the importance of specifying precisely, the nature of the state action that is challenged. Smith v. Maryland, 442 U.S. 735, 741(1979). In Greenwood, despite the dissimilarity between the activity in Maryland and Greenwood, the installment of a pen register versus the appropriation of rubbish, the court reiterated its observation from Maryland; a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties. Greenwood, 486 U.S. 35, 41 (1988) (quoting Smith v. Maryland, 442 U.S. 735, (1979). The information in Greenwood was contained in the trash. The activity here complained of, is the retrieval and recovery of shredded documents from Paper Force s, a third-party contractor, rubbish bin. The information contained within the reconstructed documents eventually led to Black s arrest. As a consequence of the forum in which Black chose to dispose of his shredded documents, a rubbish bin on the curb of a public road, Black s subjective expectation of privacy is not objectively reasonable. Like Smith, Black has no standing to claim an invasion of Fourth Amendment rights. Black chose not to take further precautions to preserve the privacy of his documents. When offered the chance to upgrade to Paper Fortress s more secure services, which included options for (1) in-office document pickup, as opposed to curbside; (2) a secure document container that allowed the 15

21 customer to keep documents to be shredded under lock and key until they were in the hands of Paper Fortress; and (3) secure shredding and incineration services, as opposed to standard recycling. Black declined them all. (R. at 4.) He stuck with the most basic package which, with respect to the pick-up and storage of the trash to be conveyed to Paper Fortress, functioned like any normal trash service. Black had the opportunity to keep those documents under lock and key, to maintain them within the privacy of his office and have them conveyed to Paper Fortress in an extremely secure manner. Black chose not to. He voluntarily placed the shredded documents, in the bin, with the intention of conveying them to Paper Fortress. By the time the DEA got to them, Black had driven away after locking up his building and leaving the documents, in the rubbish bin, out on the curb; effectively conveying the documents to Paper Fortress by leaving them open to public access (R. at 2.) Like Loughern, Black had no objectively reasonable expectation of privacy in his shredded documents which were sitting on the curb outside his A&L Office awaiting collection in the Paper-Fortress large, unsecured, blue garbage bin. Without an objectively reasonable expectation of privacy, Black had no standing to claim a fourth-amendment violation from the recovery and reconstruction of his documents from the Paper-Fortress garbage bin. Consequently, the court of appeals was correct to affirm the district court s denial of Black s motion to suppress. II. MR. FRAZIER S SECRET CONSPIRATORIAL CRIMINAL ACTIVITY AND SUBSEQUENT INDICTMENT DID NOT CONSTITUTE A VIOLATION OF MR.BLACK S SIXTH AMENDMENT RIGHTS UNDER THE STRICKLAND STANDARD. Both the trial court and the appellate court ruled correctly in holding that Mr. Frazier s counsel of Mr. Black was adequate, such that appellant was not deprived of his right to effective counsel under the Sixth Amendment. Under Strickland v. Washington, 466 U.S. 668, , 16

22 694 (1984), appellant must show that an actual conflict of interest existed, and that a reasonable probability that, but for counsel s unprofessional errors, the result of the proceeding would have been different. When reviewing the trial court s finding on the existence of conflict, the court holds to a clear error standard. Mickens v. Taylor, 535 U.S. 162, 177 (2002). Given that the trial court made no finding on the issue of prejudicial effect of counsel (R. at 6.), this court s standard of review is de novo. The trial court and the affirming appellate court correctly applied the facts to the standards set down by this court. A. There is No Evidence that Mr. Frazier s Performance was Deficient, Such That He Made Errors so Serious That He was Not Functioning as Appellant s Sixth Amendment Guaranteed Counsel. Mr. Frazier s actions, as counsel for the appellant, during pre-trial litigation and trial were sufficiently competent. Frazier did not deprive appellant of his right to effective counsel under the Sixth Amendment. The Sixth Amendment provides not simply for the right to counsel, but the right of effective counsel. Strickland, 466 U.S. at 686. To demonstrate a violation of this right, appellant must first to show, that counsel made errors so serious that counsel was not functioning as the counsel guaranteed by defendant by the Sixth Amendment. Id. at 687. Appellant cannot meet this standard. The record provides only three actions by Frazier. None of them contain clear errors, or as the standard requires, errors so serious that counsel was not functioning as counsel. Id. The first action was Frazier s pretrial motions. (R. at 3.) Among these was the motion to suppress the evidence obtained from the reconstruction of the shredded documents in question. (R. at 3.) Filing and arguing such a motion was not an error. Such a motion was necessary and appropriate, as success on such a motion would have exponentially increased the odds that appellant would have been acquitted. 17

23 The claim that the trial court s finding for the appellee (R. at 4.), is proof of a serious error satisfying prong one of the Strickland test is insufficient. To sustain such a claim, appellant must show that such an error occurred during the relevant hearing. During the hearing; Frazier called, Parker, the sales representative of Paper Fortress, to testify about the contractual arrangement between Paper Fortress and the appellant. (R. at 3 4.) Frazier offered into evidence the service contract between Paper Fortress and the appellant. (R. at 4.) And Frazier permitted the Paper Fortress sales representative to testify about the conversation she had with appellant in choosing which service appellant wanted from the array of services Paper Fortress offered. (R. at 3 4.) None of these actions demonstrate any error, on the part of Frazier. From the record it appears Frazier acted correctly and dutifully for his client. The trial judge s stated that, there were times in the trial when Mr. Frazier did appear harried or uncharacteristically nervous. (R. at 6.) This is not exhibitive of an error in counsel or a serious error. As the trial judge went on to say, I did not see anything glaringly wrong with his handling of the case per se. (R. at 6.) While this is not an official finding of the trial court (R. at 6.), this is the only statement on record of Frazier s performance at trial. Based on these facts, even under de novo, there is no rational basis to find that Frazier committed a serious error in representing appellant. Neither is there a reasonable probability that the result of the proceeding would have been different. B. As Frazier Did Not Commit Any Serious Errors in Representing Appellant, His Representation Could Not Have Prejudiced the Appellant. Under Strickland, the defendant must show that his counsel s deficient performance prejudiced him. Strickland, 466 U.S. at 687. This second prong of the Strickland test is impossible to meet for the appellant, as he cannot show that Frazier committed any errors over the course of his representation, much less serious ones. 18

24 As discussed supra, failure to convince the trial court to grant appellant s motion to suppress is not itself an error. Nothing in the record indicates that during filing or the hearing subsequent, Frazier did anything incorrectly or at a lower standard than that of the average member of the legal profession. For this court to hold Frazier to that higher standard, simply because his counsel lost an important motion pre-trial, is equivalent to holding that losing on an important motion is per se lack of effective representation under the Sixth Amendment. Such a ruling will distort the focus of the Sixth Amendment, which aims to facilitate justice through the guarantee of effective counsel. The resulting distortion will further overburden courts as losing parties appeal based solely on their loss, rather than contesting a true error. III. FRAZIER DOES NOT FALL UNDER THE CRONIC EXCEPTION AND THEREFORE IS REQUIRED TO SHOW PREJUDICE. This Court recognizes an exception to its rule in Strickland, the need of the defendant to show actual prejudice; whereby prejudice is presumed if the defendant can show that assistance of counsel had been denied entirely or during a critical stage of the proceeding. U.S. v. Cronic, 466 U.S. 648, (1984). As Justice Scalia noted, however, in Mickens, whether the exception extends to a particular case is highly fact dependent. Mickens, 535 U.S. at 167. However, to extend the Cronic rule, this court has always either required there to be explicit acknowledgment of the conflict of interest on the attorney s part, or for there to be demonstrably actions of divergent interest in the course of representation. Neither of these sufficient conditions is met here. A. Neither Frazier nor Black Objected to the Representation Relationship, thus Automatic Reversal Under Holloway is Inappropriate. Black s situation does not qualify him for an automatic reversal, like the one created in Holloway v. Arkansas, 435 U.S. 475 (1978). The facts in Holloway were such that this court 19

25 found them to be circumstances of [the] magnitude required under Cronic to warrant automatic reversal. In Holloway, in a criminal defense trial, three co-defendants were assigned the same attorney. Id. at 477. The defense counsel made a timely objection that he could not adequately represent all three of his clients interests simultaneously. Id. The trial court rejected his motion to appoint new counsel. Id. This court held, that when defense counsel is forced to represent codefendants over his timely objections, unless the trial court determined there is no conflict, reversal is required. Id. at 488. No analogous set of facts is to be found here; Frazier did not object to representing Black, and simultaneously representing another client, whom was not on trial. While it is true, Redman was not indicted (even though he was Black s partner in the crime at hand), no actual conflict of interest arose between the two loyalties. [A]n actual conflict of interest meant precisely a conflict that affected counsel s performance as opposed to a mere theoretical division of loyalties. Mickens, 535 U.S Furthermore, there is no evidence that Frazier knew of Black and Redman s business relationship, nor that their relationship was the source of the money he was laundering, nor that his illegal actions implicated him in those of his client s. Furthermore, Black never objected to his representation by Frazier. As such, Black fails to meet the standard for an automatic reversal as mandated by Culyer v. Sullivan, 446 U.S. 335 (1980). In Cuyler, the respondent was one of three co-defendants represented by the same two attorneys. Id. at 337. Neither Sullivan nor his attorneys objected to multiple representation. Id. at This court held that absent objection, a defendant must demonstrate that a conflict of interest actually affected the adequacy of his representation. Id. at Black s case is once again distinguishable; that Black was not charged as a co-defendant with Redman by his side, because Redman was never charged. This is a distinction that counts 20

26 more towards extending the ruling in Cuyler to the facts in this case. Had Redman been charged, Frazier would have found himself in a situation where fairly representing both his clients would have been much more difficult. Here Frazier s primary interest was to get Black off. The record does not indicate that Frazier was aware of a potential conflict. If knowledge of such a conflict may be imputed to Frazier, it may be argued that due to Frazier s involvement in illegal activities with Redman, he had a greater incentive to keep Redman from being indicted on drug charges, so as to prevent him from giving up Frazier with regards to money laundering. However, this is precisely the type of theoretical divide of loyalties of which the Mickens court spoke. Mickens, 535 U.S. at 171. There is no demonstrable defect in the record of Frazier s inadequacy at representing Black s interests. There is no indication in the record that Black desired to cut a deal with the government to sell out Redman. Had such a scenario occurred and Frazier tried to obstruct a plea, then that would be conclusive evidence of Frazier not providing adequate representation for Black at the expense of Redman. As no such facts exist, under Mickens, this conflict remains at the theoretical, and therefore nonreversible level. Another distinction exists between Cuyler and the present one. In Cuyler, the potential conflict of interest brought about by the explicit multiple representation of the co-defendants by the two attorneys, is not present here on its face. Frazier s relationship with Black was not as apparent to Black as it would have been to Sullivan. This is a distinction without a difference. The ruling in Cuyler was made when the respondent could not but know that his attorneys were representing multiple interests. Here on the other hand, the facts do not make that clear. What the record does make clear is that Redman and Black were business partners in Black s methamphetamine operation and that Frazier had been working with Redman to launder 21

27 Redman s money. (R. at 5.) The record states that Black only made the connection after Frazier and Redman s indictment. However, all of this is irrelevant. The court s holding in Cuyler did not require the defendant s knowledge of a conflict of interest. All it demanded was the defendant make the objection. The ruling in Cuyler does not contain a scienter requirement, requiring the defendant know and refrain from objecting. Cuyler, 466 U.S. at Lack of a scienter requirement is confirmed by the ruling in Wood v. Georgia, 450 U.S. 261 (1981). B. If no Objection is Made by Either Counsel or Client, Demonstrable Defects of Representation Must be Present for a Sixth Amendment Violation to Have Occurred. Black never raised the issue of a conflict of interest at the trial level, and the judge had no duty to inquire. Therefore Black must demonstrate prejudice from him being represented by Black to show reversible error. If at trial neither a party s counsel, no himself, makes an objection to the representation relationship, because of a potential conflict of interest, on appeal the reviewing court may only reverse a decision on Sixth Amendment grounds and grant a new trial if that court determines that an actual conflict of interest existed. Wood, 450 U.S. at 273. This standard is further clarified in Mickens to mean, a division of loyalties that affected counsel s performance. Mickens, 535 U.S. at 172 n. 5. In Wood, defendants were represented by their employer s lawyer. Wood, 450 U.S. at 266. Not far into proceedings defendant s counsel chose a litigation posture and a course of action that would ultimately benefit the employer in the long run, and were not of the best interests for the defendant employees, and eventually led to defendants conviction and revocation of probation. Id. at This court held that the record was such that it could not, be sure whether counsel was influence in his basic strategic decisions by the interest of the employer who hired him. Id. at 272. Thus, the case was remanded to the lower court to make a 22

28 fact finding determination of whether the defendant s due process rights were violated. Id. However, as stated in Mickens, the need of remand or reversal can only exist when the conflict had significantly affected counsel s performance, and thus rendered the verdict of the lower court unreliable. Mickens, 535 U.S. at Thus, if the record does not possess facts of counsels performance that make a clear indication of a conflict of interest making significant affects on either his litigation strategy or performance, remand or reversal is not warranted. Such is the case here. Not only does the record not contain any facts of a significant subpar performance on the part of Frazier, nor a strategy that does not put his client s interest first, the record does not contain any facts that suggest either. Before the trial, Frazier argued several motions to keep the most condemning evidence out. (R. at 3.) This suggests Frazier was acting totally in accord with his duty to present the best defense possible for Black, despite the fact that he lost on these motions. And the trial court judge noted that there was nothing in Frazier s mode of representation that was glaringly wrong per se. Furthermore, there is no evidence that there was an actual conflict of interest, and it is debatable that in the course of the proceedings there was actually no theoretical conflict of interest. As stated supra, this court has defined actual conflict as one that affected counsel s performance. There is no evidence of this. Regarding a theoretical conflict, at the time of representation there one does not appear to exist in this instance. Frazier had nothing to gain from Black going to jail. In fact, he would have been hurt, presumably, by Black going to jail. It is reasonable to assume that with a guilty conviction, the money from the methamphetamine sales would have dried up, or at least taken a serious hit. As such, Frazier s side scheme of laundering that money with Redman would not be as profitable. Therefore, it was in Frazier s best interest to pursue a course that would get Black off entirely. 23