SUPREME COURT OF THE UNITED STATES

Transcription

1 No IN THE SUPREME COURT OF THE UNITED STATES JAMES T. OLIVER Petitioner, v. STATE OF CLINTONIA Respondents. On Writ of Certiorari to the Supreme Court of the United States BRIEF FOR RESPONDENT September 15 th, 2017 TEAM J Attorneys for the Respondent

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... iii QUESTIONS PRESENTED... v JURISDICTION... 1 STATEMENT OF THE CASE... 2 SUMMARY OF THE ARGUMENT... 5 ARGUMENT... 7 I. PETITIONER S CONVICTION UNDER CLINT. STAT. DOES NOT VIOLATE THE EQUAL PROTECTION CLAUSE OF THE 14 TH AMENDMENT BECAUSE IS RATIONALLY RELATED TO A LEGITIMATE STATE INTEREST... 7 A. Rational Basis Analysis is Based on the Legitimacy of the State Interest when the Legislature Enacted B. If the Rational Basis Test is Based on the Legitimacy of the State Interest at the Time of this Challenge to , Intrastate Economic Protectionism is a Legitimate State Interest that the Statute is Rationally Related to II. THE TEN IMAGES RECOVERED FROM PETITIONER S USB DRIVE ARE ADMISSIBLE A. The Petitioner s Fourth Amendment Rights were Not Violated Under the Private Search Doctrine established in Jacobsen B. Jacobsen has not been abrogated by Jones and Even if the Court holds that Jacobsen has been Overruled the Good Faith Exception to the Exclusionary Rule Applies and the Evidence is Admissible CONCLUSION ii

3 TABLE OF AUTHORITIES Cases United States v. Ackerman, 831 F.3d 1292 (10th Cir. 2016), reh'g denied (Oct. 4, 2016) Alexander v. Whitman, 144 F.3d 1392 (3d Cir. 1997)... 9 Burdeau v. McDowell, 256 U.S. 465 (1921) City of Philadelphia v. New Jersey, 437 U.S. 617 (1978) Craigmiles v. Giles, 312 F.3d 220 (6 th Circ. 2002) Davis v. United States, 564 U.S. 229 (2011) , 30, 33 Energy Reserves Group, Inc. v. Kansas Power & Light Co., 439 U.S. 400 (1983) FCC v. Beach Communications, 508 U.S. 307 (1993)... 11, 18 Fitzgerald v. Racing Ass n, 539 U.S. 103 (2003)... passim Greater Houston Small Taxicab Co. Owners Ass n v. Houston, 660 F.3d 235 (2011) Gregory v. Ashcroft, 401 U.S. 452 (1991)... 8 H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525 (1949) Heller v. Doe, 509 U.S. 312 (1993)... 7, 11, 17, 18 Kadrmas v. Dickinson Pub. Sch., 487 U.S. 450 (1988)... 8 Katz v. United States, 389 U.S. 347 (1967) Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356 (1973) Loving v. Virginia, 388 U.S. 1 (1967) Metropolis Theatre Co. v. Chicago, 228 US. 61 (1913) Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869 (1985) Michael H. v. Gerald D., 491 U.S. at 117 (1989)... 9, 10, 11 Minn. v. Clover Leaf Creamery Co., 449 U.S. 456 (1981)... 7, 8, 10, 32 New Orleans v. Dukes, 427 U.S. 297 (1976)... 8, 17, 32 Nguyen v. INS, 533 U.S. 53 (2001)... 9, 10, 11, 13 Nordlinger v. Hahn, 505 U.S. 1 (1992) Powers v. Harris, 379 F.3d 1208 (10th Cir. 2004)... passim Rann v. Atchison, 689 F.3d 832 (7th Cir. 2012)... 22, 24, 25, 31 Riley v. California, 134 S. Ct (2014)... 23, 26 Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477 (1989) Sensational Smiles, LLC v. Mullen, 793 F.3d 281 (2d Cir. 2015)... 14, 15, 16, 18 Shelby County v. Holder, 133 S. Ct (2013)... 7, 12, 32 St. Joseph Abbey v. Castille, 712 F.3d 215 (5th Cir. 2013)... 16, 17 Tenet v. Doe, 544 U.S. 1 (2005) United States v. Calandra, 414 U.S. 338 (1974) United States v. Jacobsen, 466 U.S. 109 (1984)... passim United States v. Leon, 468 U.S. 897 (1984) United States v. Lichtenberger, 786 F.3d 478 (6th Cir. 2015)... passim United States v. Runyan, 275 F.3d 449 (5th Cir. 2001)... 22, 24, 25, 31 United States v. Simpson, 904 F.2d 607 (11th Cir. 1990)... 22, 24 Vance v. Bradley, 440 U.S. 93 (1979)... 7, 8, 9, 13 Whole Woman s Health v. Hellerstedt, 136 S. Ct (2016)... 12, 13 iii

4 Statutes Clint. Stat.... passim Clintonia Child Protection Act , 5 Clintonia Funeral Directors and Embalmers Act... 2 Other Authorities Allison Orr Larsen, Do Laws Have a Constitutional Shelf Life?, 94 TEX. L. REV. 59, 111 (2015) Erich Brenner, Human body preservation old and new techniques, 224 J. OF ANATOMY 316 (2014), 11 Katie Matejka, United States v. Lichtenberger: The Sixth Circuit Improperly Narrowed the Private Search Doctrine of the Fourth Amendment in A Case of Child Pornography on A Digital Device, 49 CREIGHTON L. REV. 177 (2015) Thomas W. Nardi, Virtually Uncertain: The Fourth Amendment and Laptops in United States v. Lichtenberger, 89 TEMP. L. REV. 781 (2017) Constitutional Provisions Fourteenth Amendment... 5 Fourth Amendment... passim iv

5 QUESTIONS PRESENTED 1. Is rationally related to a legitimate state interest, and is that analysis based on the statute s rationality when the legislature enacted the statute, or when the statute was challenged? 2. Are the images of child pornography and a forged funeral director s license on Petitioner s USB drive admissible under the Fourth Amendment, either under the Court s reasoning in United States v. Jacobsen, 466 U.S. 109 (1984), or under the good faith exception to the exclusionary rule if Jacobsen was abrogated by United States v. Jones, 565 U.S. 400 (2012)? v

6 JURISDICTION The judgment of the Supreme Court of Clintonia was entered on October 29, The petition for a writ of certiorari was filed on November 10, The jurisdiction of this court is invoked under 28 U.S.C. 1257(a). 1

7 STATEMENT OF THE CASE This Court is being asked by the Petitioner to reverse the holding of the Supreme Court of Clintonia and remand the case for further proceedings consistent with this opinion. The State of Clintonia ( The State ) originally charged petitioner with eleven criminal counts under three criminal statutes. R. at 2. The State dismissed Count Two of its own accord prior to any hearing. R. at 2. The State indicted Petitioner with Count 1 for violation of Clint. Stat. ( ), which forbids intrastate, time-of-need casket sales without a Funeral Director s License. R. at 2-3. The State also indicted Petitioner with Counts Three through Eleven for violation of the Clintonia Child Protection Act Clint. Stat. ( ). R. at forbids possession of child pornography. R. at 2. The legislature enacted in R. at made intrastate, time-of-need casket sales without the proper license a criminal offense. R. at was passed by the legislator as an amendment to the Clintonia Funeral Directors and Embalmers Act ( FDEA ). Senator Jerome Gaines, a mortician, introduced the amendment. R. at 4. The legislature passed for two main reasons. R. at 5. One was to protect the interests of funeral directors. R. at 4. The other reason was to protect consumers from deceptive practices. R. at 5. A study that supported this interest said that 10% of unlicensed casket sellers took advantage of consumers, but that study was later debunked.. R. at 5. Clintonia repealed and the FDEA s licensure requirements in R. at 3. Clintonia s casket regulations were repealed in R. at 5. However, the licensure requirements were still in place at the time of Petitioner s indictment, and the repeal did not grant retrospective relief. R. at 3. To meet those license requirements, a person only needed to meet the requirements set forth by the FDEA. R. at 3-4. There were two ways to meet those requirements. R. at 4. A person could either take one year of coursework at Clintonia s mortuary school, Kevorkian College and 2

8 do two years of apprenticeship, or do three years of apprenticeship. R. at 4. Either path took three years. R. at 4. Regardless of path, candidates got extensive training in embalming: they were required to embalm at least 25 bodies. R. at 4. All license applicants were required to pass the State of Clintonia funeral directors examination. R. at 4. Petitioner was a monk who left the Abbey in R. at 5. He left after the abbot refused to let Petitioner manufacture and sell caskets to the public. R. at 5. Petitioner left to sell the caskets, a design that was a monastic tradition, for himself. R. at 5. One of those casket sales led to the criminal charges. R. at 5-6. On December 1, 2013, retired F.B.I. Special Agent Bruce Walker contacted Petitioner through Petitioner s website, R. at 5-6. Walker did buy a casket, and called Petitioner after the funeral to thank him. R. at 6. At this point, Petitioner admitted to Walker that he sold the caskets in violation of , and that he kept a fake funeral director s license in a USB drive on his nightstand. R. at 6. The next day, Walker knocked on Petitioner s door. R. at 6. When Walker knocked on Petitioner s door, it swung open. R. at 6. Walker entered the home and looked around. R. at 6. On Petitioner s nightstand, Walker found the USB drive that Petitioner described in their earlier conversation. R. at 6. The USB drive had an inscribed tag on it. R. at 6. The inscription read Dup. License/Fun!. R. at 6. Walker put the drive into the computer. R. at 6. The USB had two folders, one labeled DL and the other labeled F. R. at 6. Walker opened the F folder, which held approximately 100 subfolders. R. at 6-7. The subfolders were randomly numbered. R. at 7. Walker opened the first subfolder. R. at 7. In the subfolder were eleven JPEG files labeled with numbers R. at 7. Walker randomly opened one of the JPEG files. R. at 7. The file contained an image of child pornography. R. at 7. The child engaged in sexual activity with the adult appeared to be around the age of Walker s own 3

9 daughter. R. at 7. Walker rapidly closed the file, walked to the bathroom, and vomited several times. R. at 7. After Walker recovered, he brought the USB drive to the Sandersburg Police Department. R. at 7. Walker explained that he was not a cop, then handed the USB over to Private Rookie Jones and explained that he found child pornography on the USB. R. at 7. Walker guided Jones to the F folder and the first subfolder, the same folder Walker opened at Petitioner s house. R. at 7. At that point, Walker did not recall the exact JPEG file he opened. R. at 7. Walker told Jones it s one of those before walking away. R. at 7. Jones, not knowing which of the files Walker opened, opened JPEGs R. at 7. Every JPEG contained child pornography, except for file 10. R. at 7. File 10 was Petitioner s forged Funeral Director s License. R. at 7. Jones stopped his search immediately after he opened the forged license. R. at 7. 4

10 SUMMARY OF THE ARGUMENT This Court should affirm Petitioner s indictment in the State of Clintonia under Clint. Stat. ( ) and Clint. Stat. ( ) because the statutes do not violate Petitioner s Fourteenth Amendment rights. First, as to Petitioner s indictment under , the statute is rationally related to legitimate state interests and passes rational basis review under the equal protection clause. When the legislature enacted in 1956, it required a funeral director s license for time-of-need, intrastate casket sales. Their legitimate interest behind the statute was to protect consumers from deceptive sales tactics. They accomplished that purpose by ensuring only licensed professionals sold time-of-need caskets in the State of Clintonia. The same rational basis analysis applies because the analysis depends on whether the statute was rational at the time the legislature enacted it. When courts analyze statutes under rational basis review, they use past tense indicating their focus on the time of enactment. When circumstances change, courts show great deference to the legislature s past decisions. The Court has not used the doctrine of changes, which examines statutes in light of changed circumstances, to invalidate any statute subject to rational basis analysis in the context of equal protection review. Even if the Court applies doctrine of changes the circumstances in the State of Clintonia have not changed enough to warrant invalidating the statute. If the doctrine of changes is applied, is rationally related to the legitimate government purpose of intrastate economic protection. Intrastate economic protectionism is a legitimate state interest if the statute does not implicate interstate commerce or make classifications based on suspect classes. The statute at issue here is valid because it does not involve interstate commerce, and it does not make suspect classifications. When that is the case, courts give great deference to the legislature to advance the economic interests of their jurisdiction as they see fit. In addition, intrastate economic protection promotes other legitimate 5

11 interests that the legislature may not have noted, such as environmental protection. Under rational basis review, should be upheld as rational if it is rationally related to any legitimate interest, whether the legislature named that interest or not. Second, as to Petitioner s indictment under , the ten images are admissible because Petitioner s Fourth Amendment rights were not violated when the officer searched his USB drive after a private citizen conducted a search. This Court developed the private search doctrine in Jacobsen to address government searches conducted after private citizens searches. The Court held that as along as a government agent remains within the scope of the private search there is no violation of an individual s Fourth Amendment rights. The officer s search in this case remained within the scope of the private search because: (1) the search was limited and precise and (2) the officer could be certain the files contained child pornography. This Court s recent decision in Jones did not abrogate the private search doctrine established in Jacobsen. Jones revived the common-law trespassory test; however, even though Jacobsen did not analyze private searches under the common-law trespassory test, the private search doctrine established in Jacobsen survives. The common-law trespassory test does not alter the private search doctrine because under the circumstances of a confirmatory search it is inapplicable. The common-law trespassory doctrine is inapplicable because (1) the item searched loses constitutional protection once a party conducts a private search and (2) the government search is not conducted to obtain information. In the alternative, if the Court holds Jacobsen has been abrogated by Jones it should still deny petitioner s motion because the good faith exception applies. The officer relied in good faith on the binding precedent in Jacobsen, especially given that multiple Circuit Courts have continued to apply the doctrine. 6

12 ARGUMENT I. PETITIONER S CONVICTION UNDER CLINT. STAT. DOES NOT VIOLATE THE EQUAL PROTECTION CLAUSE OF THE 14 TH AMENDMENT BECAUSE IS RATIONALLY RELATED TO A LEGITIMATE STATE INTEREST Under , only licensed funeral directors may sell time of need caskets to clients in the same state. R. at 3. As Petitioner concedes, is subject to this Court s lowest level of scrutiny, rational basis review. R. at 8. To be constitutional under rational basis review, a statute must be rationally related to a legitimate state interest; the statute can be over or under inclusive. Heller v. Doe, 509 U.S. 312 (1993) is rationally related to a legitimate state interest and passes rational basis review for several reasons. First, rational basis review is based on the legitimacy of the state interest when the legislature enacts the statute. See Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464 (1981) (using the past tense in analysis to determine if the legislature acted reasonably). In this case, protecting consumers from the deceptive practices of unlicensed sellers and protecting public health were legitimate state interests when the legislature enacted R. at 5, 10. The doctrine of changes, which sometimes allows courts to invalidate statutes because circumstances have changed beyond recognition, does not apply to this case. See Shelby County v. Holder, 133 S. Ct (2013) (invalidating the coverage formula of the Voting Rights Act). The Supreme Court only uses the doctrine to invalidate cases in rare circumstances. See id.; see also Vance v. Bradley, 440 U.S. 93 (1979). The statute would still stand even if the legislature was mistaken as to some facts at the time of enactment, because the legislature can still articulate a rational basis. See Vance, 440 U.S. at Second, even if the statute is analyzed at the time of this challenge, economic protectionism of intrastate commerce is a legitimate state interest. Powers v. Harris, 379 F.3d 1208, 1221 (10th Cir. 2004). Courts give state legislatures wide latitude in economic regulation, 7

13 as long as legislatures preserve fundamental rights and do not classify based on a suspect class. New Orleans v. Dukes, 427 U.S. 297, 303 (1976). In this case, the legislature did not burden a fundamental right or classify based on race, gender, or even whether the business was in-state or out of state. In these situations, a state s interest in advancing one type of business over another is legitimate. See id. Therefore, in this case, the state s interest in economically protecting statelicensed funeral directors is legitimate, and is constitutional under rational basis review. A. Rational Basis Analysis is Based on the Legitimacy of the State Interest when the Legislature Enacted The Supreme Court has made clear that unless a legislature s actions were irrational, the Court will not invalidate a statute under rational basis review. Gregory v. Ashcroft, 401 U.S. 452, 472 (1991); Kadrmas v. Dickinson Pub. Sch., 487 U.S. 450, 463 (1988); Vance, 440 U.S. at 97. When the Clintonia State Legislature enacted , which requires intrastate casket retailers to be licensed funeral directos, they did so because they were presented with evidence that unlicensed casket retailers took advantage of consumers. R. at 5. Even if the Petitioner shows that the legislature enacted a statute based partially upon a mistake of fact, the statute will remain valid. Clover Leaf Creamery Co., 449 U.S. at 464. Therefore, though the Clintonia State legislature may have been mistaken as to some of the facts when they enacted , the legislature s legitimate purpose at the time of enactment remains valid. Id. In Vance v. Bradley, the Court rejected the argument that changed circumstances invalidated a statute that made 60 the mandatory age of retirement for Foreign Service employees. 440 U.S. 93. In that case, active and retired Foreign Service employees argued that because work conditions improved immensely in the 30 years since Congress passed the statute, the required retirement age was no longer rational. Id. at Even though this Court agreed that work conditions were improved, it upheld the statute, stating, we will not overturn such a 8

14 statute unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislature's actions were irrational. Id. at 97 (emphasis added). It is clear that this Court analyzed Congress s actions at the time they passed the statute, because they used the past tense to focus on if Congress s actions were rational, not if Congress s actions are rational. See id. This Court declined to ask if Congress s actions were still rational. See id. Here, Petitioner argues that because some of the facts supporting the passage of have been invalidated, the statute is no longer rationally related to a legitimate government interest. R. at 4-8. This argument ignores the reality that rational basis review is based on whether the statute served a legitimate interest when the legislature passed the statute, not when the statute is challenged. Nguyen v. INS, 533 U.S. 53, (2001); see also Alexander v. Whitman, 144 F.3d 1392, 1403 (3d Cir. 1997). When the Clintonia State Legislature passed , they found that at least 10% of unlicensed casket sellers took advantage of consumers. R. at 4-5. Even if Petitioner can show that consumers are no longer in as much danger from unlicensed sellers, the statute must stand if the legislature had a legitimate purpose. See Vance, 440 U.S. at 97. Like the required retirement age in Vance, when passed, served the legitimate government purposes of consumer protection and preserving public health; changed circumstances at the time of the challenge do not invalidate those purposes. See id. Even when advances in technology make legislative decisions seem nonsensical, this Court grants great deference to legislatures. Nguyen, 533 U.S. at 72-73; see Michael H. v. Gerald D., 491 U.S. 110, (1989). In both Nguyen and Michael H., petitioners challenged laws that concerned questions of paternity. Nguyen, 533 U.S. 53; Michael H., 491 U.S In Nguyen, under 8 U.S.C.S. 1409, foreign children with mothers who were U.S. citizens had an 9

15 easier path to citizenship than foreign children with U.S. citizen fathers. Nguyen, 533 U.S. at For example, if a child was under 18, the statute required affirmative evidence of paternity and that the father financially support the child. Id. at 59. If the child s mother was a U.S. citizen, on the other hand, the statute required no evidence besides maternity for the child to establish citizenship. Id. Nguyen claimed that these additional citizenship requirements for foreign children of U.S. citizen fathers were irrational, because paternity tests confirm fatherhood almost as accurately as birth confirms motherhood. Id. at 63. Michael H. made a similar claim, arguing that because accurate paternity tests can easily ascertain a child s true father, paternity rights in California should not automatically go to the husband of the mother. 491 U.S. at 119. While this Court agreed that paternity tests might be a better way to establish paternity, it refused to substitute its judgment for that of legislatures, and held that the statutes were rational in both cases. Nguyen, 533 U.S. at 73; Michael H., 491 U.S. at These rulings came even though at the time of the challenges, scientific tests easily established paternity, a condition that did not exist when the statutes were enacted. The intrastate selling of caskets is much the same today as it was when was enacted. However, Petitioner makes two claims to support his contention that circumstances have changed in a way that make irrational. First, he points to the debunked study that found that 10% of unlicensed casket sellers took advantage of consumers. R. at 4. Second, he mentions that Clintonia has removed its casket specification requirements, making licensed sellers unnecessary. R. at 10. To Petitioner s first point, the legislature need not rely on an empirical study to pass a rational law; if the basis for the law is feasible, the statute survives rational basis review. Clover Leaf Creamery Co., 499 U.S. at 464. The Clintonia Legislature could rationally believe that limiting intrastate casket sales to licensed funeral directors, who have the dignity of 10

16 their profession to protect, would decrease deceptive practices. If this belief was rational, the statute is rational, regardless of scientific fact. FCC v. Beach Communications, 508 U.S. 307, (1993) (stating that statutes may be based on rational speculation unsupported by evidence or empirical data. ). To Petitioner s second point, licensed sellers are even more necessary because casket regulations are no longer in place. R. at 10. When a body is embalmed, morticians use dangerous chemicals like formaldehyde. Erich Brenner, Human body preservation old and new techniques, 224 J. OF ANATOMY 316 (2014), By restricting intrastate, time-of-need casket sales to licensed funeral directors, Clintonia protects the environment by guaranteeing that casket sellers have experience with embalming fluids and how to contain them. See R. at 4. In fact, petitioner has not proved that circumstances have changed at all. At most, he has pointed out that a study conducted in 1955 lacks basis in fact. R. at 5. Even if that is the case, petitioner has not met his burden. [T]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it, whether or not the basis has a foundation in the record. Heller, 509 U.S. at 320 (1993) (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356 (1973)). Like the laws in Nguyen and Michael H., is still valid under rational basis review because it still protects a valid interest, even if new technology or science makes the foundation of the law less rational. See Nguyen, 533 U.S. at 68; see also Michael H, 491 U.S. at Invalidating every law that is made slightly less rational because of new technology or changed circumstances would give courts undue power, and make the job of legislature s impossible. See Metropolis Theatre Co. v. Chicago, 228 US. 61, 69 (1913) (stating, The problems of government are practical ones, and may justify, if they do not require, rough accommodations 11

17 illogical, it may be, and unscientific. ). Changed circumstances played a part in invalidating the statute in Shelby County, but that case was not analyzed under equal protection, and unlike this case, dealt with disparate treatment of states. See Shelby County, 133 S. Ct. 2612; Allison Orr Larsen, Do Laws Have a Constitutional Shelf Life?, 94 TEX. L. REV. 59, 111 (2015). When circumstances change, the disparate treatment of states in a federalist system is going to face a higher level of scrutiny than normal rational basis review. Id. However, when laws do not make implicate protected classes or fundamental federalist concerns, they are subject to rational basis review, and changed circumstances are unlikely to affect their rationality. Id. at Courts give legislators broad deference in rational basis review, and courts should give legislators time to adjust the laws based on changed facts, instead of doing the factfinding themselves. Id. If the Court applied changed circumstances doctrine to every law subject to rational basis review, challenges to statutes that do not address the issue as well as they previously did would flood the courts, and take away power from legislatures. The Supreme Court of Clintonia properly denied Petitioner s argument that Carolene Products and Whole Woman s Health v. Hellerstedt stand for the premise that changed circumstances invalidate statutes under rational basis review. R. at 20. This denial was proper, because although both cases mention changed circumstances in dicta, the changed circumstances referred to in Whole Woman s Health were changes in constitutional injury, not changes in legitimate government interests; Carolene Products was decided in the substantive due process context. Whole Woman s Health v. Hellerstedt, 136 S. Ct. 2292, 2306 (2016); United States. v. Carolene Products Co., 304 U.S. 144 (1938). This Court mentioned in Whole Woman s Health that if prisoners brought a Constitutional claim about contaminated drinking water that was denied, but the water was later contaminated, the change in fact would validate a later 12

18 Constitutional claim, because the injury changed. Whole Woman s Health, 136 S. Ct. at The Petitioner s circumstances have not changed to give rise to a Constitutional injury in this case. Instead, like Nguyen, new evidence has surfaced that calls into question the validity of a statute, but the government interest, and the alleged injury, stayed the same. See Nguyen, 533 U.S. at Because the Clintonia State Legislature had a legitimate purpose for , and changed circumstances have not negated that purpose, the statute satisfies rational basis review. B. If the Rational Basis Test is Based on the Legitimacy of the State Interest at the Time of this Challenge to , Intrastate Economic Protectionism is a Legitimate State Interest that the Statute is Rationally Related to. This Court s precedent is clear: if the law does not make classifications based on race, gender, or the in-state status of businesses, it is subject to rational basis review. Fitzgerald v. Racing Ass n, 539 U.S. 103, 107 (2003); Loving v. Virginia, 388 U.S. 1, 18 (1967); Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869 (1985). In this analysis, intrastate economic protectionism is a legitimate government purpose under rational basis review, and the Court almost never passes judgment on the wisdom of state economic legislation. Fitzgerald v. Racing Ass n, 539 U.S. at 108 (2003) (upholding Iowa statute that can rationally be understood to do what the court says it seeks to do, namely, advance the racetracks economic interests); Nordlinger v. Hahn, 505 U.S. 1, (1992) ( [J]udicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted. ) (quoting Vance, 440 U.S. at 97). Here, does not distinguish based on race, gender, or between in-state and out-of-state businesses. R. at 4-5. Instead, it rationally distinguishes between licensed intrastate casket retailers and unlicensed intrastate casket retailers, advancing the legitimate purpose of protecting the economic interests of licensed funeral directors. R. at 4-5. This Court upheld economic protectionism of this kind in Fitzgerald, 539 U.S In that case, the Iowa Legislature imposed one tax rate on revenue from slot machines at racetracks, 13

19 and a lower tax rate on revenue from slot machines operated on riverboats. Id. at 105. The legislative purpose of the statute was to advance the economic interests of the racetracks. Id. at 106. Racetrack owners challenged the statute under the Equal Protection Clause, unsuccessfully arguing that there was no rational reason for the different tax rates. Id. at 106. Further, they claimed that the statute defeated the stated purpose of the legislature because it did not help them economically. Id. Both arguments were rejected. Id. at 110. This Court noted that even though the statute may be more beneficial to riverboats, the statute could benefit racetracks at the same time. Id. at 108. This Court was sure to note that the statute advanced the racetracks economic interests, even if it protected riverboats more. Id. The Fitzgerald case was unique because the party unsuccessfully challenging the statute was the very party the statute was meant to economically benefit. Id. This Petitioner claims that Clint. Stat. serves no rational basis because it works to his disadvantage, but the challenge is no more successful. When the legislature enacted the statute, Senator Jerome Gaines was clear that its purposes were threefold: 1. To promote the business of funeral directors 2. Consumer protection; and 3. To protect the public health. R. at 4-5. From the time of its enactment, the statute was meant to advance the intrastate economic interests of funeral directors. R. at 4. In Fitzgerald, this Court recognized protecting the economic interests of racetracks as a legitimate state interest. Fitzgerald, 539 U.S. at Here, the legislature restricted intrastate casket sales to licensed funeral directors to protect their economic interests, a rational basis for the statute. See id. At least two circuit courts, the Second Circuit and the Tenth Circuit, cited Fitzgerald and upheld pure intrastate economic protectionism as a legitimate state interest. Sensational Smiles, LLC v. Mullen, 793 F.3d 281, 286 (2d Cir. 2015); Powers, 379 F.3d at In Sensational 14

20 Smiles, the Second Circuit upheld a statute that only allowed licensed dentists to perform teeth whitening procedures. 793 F.3d at 286. Citing this Court s reasoning in Fitzgerald, the Second Circuit permitted the economic favoritism because it did not violate a specific provision in the Constitution or federal law. Id. at 286. The Tenth Circuit also relied on this Court s reasoning in Fitzgerald, and used the same language to uphold the Oklahoma Funeral Services Licensing Act. Powers, 379 F.3d at 1226 ( [A]bsent a violation of a specific constitutional provision or other federal law, intrastate economic protectionism constitutes a legitimate state interest. ). The act in that case was nearly identical to the act at issue here; it only allowed licensed funeral directors to make intrastate casket sales. Id. at The rule from the Fitzgerald line of cases is clear: If intrastate economic protectionism does not violate federal law, or a specific provision in the Constitution, it is a legitimate state interest under rational basis review. See Fitzgerald, 539 U.S. at 108; Sensational Smiles, 793 F.3d at 286; Powers, 379 F.3d at neither violates federal law nor specific provisions in the Constitution only affects time of need, intrastate casket sales. R. at 4. The statute allows citizens to buy caskets from unlicensed out-of-state sellers; it also allows unlicensed sellers in Clintonia to sell their products to out-of-state consumers. R. at does not apply to interstate commerce under the purview of federal law. In addition, is much less burdensome to unlicensed sellers than the statute upheld in Powers. See Powers, 379 F.3d at While only mandates that casket sellers be licensed funeral directors, the statute in Powers required sellers to be licensed and operate out of a licensed funeral establishment. Id places a lesser burden upon those who wish to engage in intrastate casket sales, because it does not require additional investment in an entire funeral establishment. R. at 4-5. With this lesser burden, clearly does not violate any specific Constitutional provision. Because

21 only affects interstate commerce, and protects intrastate economic interests without violating a specific Constitutional provision, the statute does not violate the equal protection clause. See Fitzgerald, 539 U.S. at 108; Sensational Smiles, 793 F.3d at 286; Powers, 379 F.3d at The Clintonia Supreme Court recognized that the Fifteenth Judicial Circuit s reliance on St. Joseph Abbey for the proposition that intrastate economic protectionism is not a legitimate state interest, was misplaced. R. at 10, 22. While it is true that the Fifth Circuit denies economic protectionism as a legitimate government purpose in St. Joseph Abbey, it does so without a grounding in Supreme Court Precedent. See St. Joseph Abbey v. Castille, 712 F.3d 215, (5th Cir. 2013). Instead, the Fifth Circuit draws on the Sixth Circuit s reasoning in Craigmiles, which is not binding precedent. Id. at Craigmiles only continues the theme of bad judicial interpretation. None of the cases cited by the Sixth Circuit in Craigmiles support the idea that intrastate economic protectionism is an illegitimate state interest. See Craigmiles v. Giles, 312 F.3d 220, 224 (6th Cir. 2002). The cases the Sixth Circuit cites, City of Philadelphia v. New Jersey and H.P. Hood & Sons, Inc. v. Du Mond each deal with economic protectionism in interstate commerce; it is well established that this is an improper purpose for state legislation. City of Philadelphia v. New Jersey, 437 U.S. 617 (1978); H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525 (1949). The last Supreme Court case cited by the Craigmiles court did not reach the question of equal protection at all; Energy Reserves Group, Inc. v. Kansas Power & Light Co. was argued and decided under the contracts clause. 439 U.S. 400 (1983). Perhaps most tellingly, Craigmiles and the cases it relied on were all decided before this Court s decision in Fitzgerald, 539 U.S In erroneously holding that intrastate economic protectionism is not a legitimate government interest, the Fifth Circuit in St. Joseph Abbey completely ignores Fitzgerald, and instead relies on 16

22 precedent that either does not apply, or changed with the decision in Fitzgerald. St. Joseph Abbey, 712 F.3d 215; but see Fitzgerald, 539 U.S The Fifteenth Circuit in this case and the Fifth Circuit in St. Joseph Abbey ignored a longstanding judicial principle recognized by this Court: intrastate economic protectionism of one industry often serves many other legitimate purposes. See R. at 10; see also St. Joseph Abbey, 712 F.3d 222; but see Fitzgerald, 539 U.S. at 108 (noting that different tax rates for riverboats would be a rational way to revitalize the riverfront); see also Dukes, 427 U.S. at 303 (holding that New Orleans provision allowing only vendors who continually operated in the same locality for eight years rationally promoted the tourism industry). Interestingly, the Fifth Circuit itself recognized this principle in Greater Houston Small Taxicab Co. Owners Ass n v. Houston, 660 F.3d 235 (2011). In that case, the court upheld a statute that favored large cab companies over small ones, because large cab companies were more likely to offer more services. Id. at 238. Like favoritism towards large cab companies, intrastate economic protection of licensed funeral directors also serves other purposes. For example, like the full-service taxis protected in Greater Houston Small Taxicab, licensed funeral directors are more likely to offer a full range of mortuary services than unlicensed casket sellers. In addition, by protecting licensed funeral directors, Clintonia promotes the industry, ensuring citizens will have access to a range of funeral services. Finally, keeping licensing requirements in place makes it more likely that those familiar with embalming and the chemicals used in the process will provide caskets for embalmed bodies, which protects the environment from chemicals like formaldehyde. In rational basis analysis, a classification must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. Heller, 509 U.S. at 320 (quoting FCC v. Beach Communications, 508 U.S. at 313). The legitimate purpose 17

23 does not even have to be the same one offered by the legislature. Id. In this case, economic protectionism is a legitimate state interest because it does not affect interstate commerce or classify based on a protected class. See Fitzgerald, 539 U.S. at 108; Sensational Smiles, 793 F.3d at 286; Powers, 379 F.3d at Intrastate economic protectionism is a legitimate interest not just because the Court generally leaves in-state economic decisions to the legislature, but also because the effects of that protection further other legitimate interests. See Heller, 509 U.S is rationally related to those legitimate interests. II. THE TEN IMAGES RECOVERED FROM PETITIONER S USB DRIVE ARE ADMISSIBLE The petitioner contends that the ten images located on his USB drive are inadmissible because they were obtained in violation of his Fourth Amendment rights. R. at 11. The Fourth Amendment protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. ; however, the Fourth Amendment only applies to government action. U.S. Const. amend. IV.; Burdeau v. McDowell, 256 U.S. 465, 475 (1921). As long as a private individual is not acting as an agent of the government, the Fourth Amendment is not implicated by any search or seizure conducted even if that search is unreasonable. United States v. Jacobsen, 466 U.S. 109, 113 (1984). The Petitioner has conceded that Walker was not a government actor or agent of the government; as a result, the search conducted by Walker is outside the scope of the Fourth Amendment. R. at 12. Petitioner instead challenges the subsequent government search. R. at 12. The Supreme Court in Jacobsen established the private search doctrine to determine whether government searches conducted in response to private searches violate the Fourth Amendment. See Jacobsen, 466 U.S. at This Court held that there is no Fourth 18

24 Amendment violation when the government remains within the scope of the private search. Id. at 122. The search of Petitioner s USB drive is within the scope of the private search because the officer limited his search to same folder the private citizen opened, F, which contained only eleven JPEG files and the officer could also be certain as to the contents of the folder and files because the citizen told him that the folder contained child pornography and files were numbered numerically. R. at 7. The Petitioner contends that the Jacobsen test has been abrogated by Jones. R. at 13. The Court in Jones revived the common-law trespassory test and the Court in Jacobsen only applied the reasonable expectation of privacy test. United States v. Jones, 565 U.S. 400, 409 (2012); Jacobsen, 466 U.S. at 113. However, the Court in Jones did not explicitly or implicitly overrule Jacobsen. See generally Jones, 565 U.S. at This Court should find Jacobsen is not abrogated by Jones because the private search doctrine remains unchanged when the commonlaw trespassory test revived in Jones is applied. An individual s Fourth Amendment rights under the common-law trespassory test cannot be violated by a confirmatory search because the item is no longer constitutionally protected and the government search is conducted to verify, not obtain, information. See generally id. at 407 (reviving and defining the common-law trespassory test). However, even if the Court holds that Jacobsen is abrogated by Jones, the Court should apply the good faith doctrine and hold that the ten images are still admissible because the officer relied in good faith on existing precedent. Davis v. United States, 564 U.S. 229, 241 (2011). A. The Petitioner s Fourth Amendment Rights were Not Violated Under the Private Search Doctrine established in Jacobsen. The Supreme Court developed the private search doctrine to address the constitutionality of precisely the kind of subsequent government search the petitioner challenges- a government search that occurs upon invitation from a private party after that private party conducted a 19

25 search. See generally Jacobsen, 466 U.S. at In Jacobsen, employees of a private freight carrier searched a damaged package per their insurance policy. Id. at 111. After observing white powder, they closed the package and called federal agents. Id. The federal agent then opened the box and searched through its contents. Id. The Court upheld the search, holding that the government does not violate the Fourth Amendment by simply looking at what a private party ha[s] freely made available. Id. at 119 (citations omitted). A search occurs under the Fourth Amendment when the government infringes on an individual s expectation of privacy that society is prepared to recognize as reasonable. Katz v. United States, 389 U.S. 347, (1967) (Harlan, concurrence). Once a private search has been conducted an individual s privacy rights have already been frustrated, so an additional government search that reveals nothing that had not previously been learned during the private search is not protected under the Fourth Amendment. Jacobsen, 466 U.S. at 117, 120. A private actor can testify about the private search, therefore preventing a subsequent confirmatory search by a government actor does not protect or enhance any legitimate privacy interest. Id. at 120. Once a private search is conducted there is no longer a reasonable expectation of privacy. Consequently, the Court developed the private search doctrine and held that there is no Fourth Amendment violation as long as the government actor remains within the scope of the private search. Id. at 120, 122. The search of Petitioner s USB drive did not violate the Fourth Amendment under the private search doctrine established in Jacobsen because the government did not exceed the scope of the private search. Id. at 122. To determine if the government exceeded the scope of the private search under the private search doctrine the Court should determine (1) how much information the government stands to gain when it re-examines the evidence and, [(2)] relatedly, how certain it is regarding what it will find. United States v. Lichtenberger, 786 F.3d 478,

26 (6th Cir. 2015). The search in this case was conducted on the contents of a USB drive. R. at 6. Walker, a private citizen, conducted the search, and, upon seeing an image of a child engaging in sexual acts with an adult he turned the USB drive over to the Sandersburg police department. R. at 6-7. Both the private search and government search involved opening the same folder and subfolder. R. at 6-7. The only difference between the two searches was the number of files opened in the subfolder. R. at 6-7. There were eleven numbered files in the subfolder; Walker opened a single file and could not recall which file contained the child pornography. R. at 6-7. The officer opened files numbered one through ten. R. at 7. All the files except the tenth one contained images of possible child pornography. R. at 7. While it is true that the officer stumbled upon the petitioner s fake license, the government does not automatically fail the test if they stumble upon something else, because the test concerns not the results of the subsequent search, but the position the officer was in prior conducting the search. See Jacobsen, 466 U.S. at ; Lichtenberger, 786 F.3d at 485. First, the Government did not stand to gain much information upon re-examining the evidence. Walker told the officer the drive contained child pornography. R. at 7. Although Walker stated, it s one of those, there were eleven files. R. at 7. All the eleven files were JPEGs, a file format for pictures, and the officer had no reason to believe any the files would contain anything other than additional images of child pornography, especially because they were in a single folder together and numbered as a series. R. at 7. Nothing about the circumstances suggested the officer had something to gain by re-examining the files. Walker already opened the folder and saw the numbered files even if he did not open them. R. at 7. The Court should compare the folder to a container which Walker opened, examined a single item closely, and closed. The government search was simply a more thorough search of the same 21

27 contents, and this Court should follow the Fifth and Eleventh Circuit and hold that a more thorough search of the same materials by the government does not place them outside the scope of the private search. United States v. Runyan, 275 F.3d 449, 464 (5th Cir. 2001) (citing United States v. Simpson, 904 F.2d 607, 610 (11th Cir. 1990)). Additionally, re-examining the evidence does not in and of itself constitute an opportunity to gain information, otherwise the Court in Jacobsen would have presumably found an individual s rights were further infringed upon when a confirmatory search was conducted; instead the Court in Jacobsen stated that the government was only avoiding the risk of a flaw in the private searcher s analysis. Jacobsen, 466 U.S. at 119. Second, the government could be and was certain of what it would find in this case because the USB drive was given to them by a private citizen who told them what he had seen in the specific folder on the USB drive. R. at 7. This Court has yet to apply the private search doctrine to electronic devices, however a few of the Circuit Courts have. Thomas W. Nardi, Virtually Uncertain: The Fourth Amendment and Laptops in United States v. Lichtenberger, 89 TEMP. L. REV. 781, (2017). There is currently a circuit split regarding the level of certainty an officer must have as to what the files on an electronic device contain in order to remain within the scope of the private search. Id. The Sixth Circuit has stated that virtual certainty of what the files contain is required, whereas the Fifth and Seventh Circuits have found only substantial certainty is necessary. Lichtenberger, 786 F.3d at 488; Rann v. Atchison, 689 F.3d 832, 838 (7th Cir. 2012); United States v. Runyan, 275 F.3d 449, 463 (5th Cir. 2001). In Lichtenberger, the Sixth Circuit found a subsequent government search of a laptop exceeded the scope of the private search and thus did not fall under private search doctrine because the officer did not have virtual certainty of what he would find when he reviewed in 22

28 the contents of the laptop. Lichtenberger, 786 F.3d at The private search in Lichtenberger was conducted by the defendant s girlfriend. Id. at 480. She hacked the defendant s laptop and clicked through several folders and about a hundred images and then showed the officer images from various folder locations. Id. at She admitted then she could recall whether the images she showed the officer were among the images she had previously seen. Id. The Sixth Circuit upon deciding to apply a heightened level of certainty drew first from the language of Jacobsen and second from the Court s decision in Riley requiring warrants to search cellular devices. Lichtenberger, 786 F.3d at (citing Riley v. California, 134 S. Ct. 2473, 2484 (2014)) The Court should reject the Sixth Circuit s heightened standard. First, the Sixth Circuit s reliance on the language virtual certainty in Jacobsen is misplaced. Jacobsen, 466 U.S. at 119. While this Court in Jacobsen did note that there was virtual certainty nothing else important would be found in the case in front of them, the Court did not say that virtual certainty was required. Id. Second, although the Riley decision suggests that the wealth of information available on a cellular device warrants a higher standard, a cellphone is not analogous to files in a folder on a computer. Katie Matejka, United States v. Lichtenberger: The Sixth Circuit Improperly Narrowed the Private Search Doctrine of the Fourth Amendment in A Case of Child Pornography on A Digital Device, 49 CREIGHTON L. REV. 177, (2015). If officers search a cellphone incident to arrest they are searching the whole phone in random places for possible information that may exist. Id. at 191. A search of a specific folder on a computer is much more limited and specific. The Sixth Circuit extends the Riley decision too far by applying it to the private search doctrine because (1) a search has already been conducted in the private search doctrine context and (2) officers are not going on a fishing expedition; they are simply confirming the existence of information they already know exists. Id. at 191. When a 23