MEMORANDUM FOR BASIC LEGAL RESEARCH & WRITING I. QUESTIONS PRESENTED. A. Will Mr. Smeek prevail on a motion to suppress the 300 grams of hail seized

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1 MEMORANDUM FOR BASIC LEGAL RESEARCH & WRITING TO: MR. CONGIARDO FROM: AMANDA SCOTT SUBJECT: RE: PEOPLE V. JOSHUA SMEEK DATE: DECEMBER 10, 2015 I. QUESTIONS PRESENTED A. Will Mr. Smeek prevail on a motion to suppress the 300 grams of hail seized from the traffic stop? B. Will Mr. Smeek have standing as a passenger to challenge the constitutionality of the search and seizure? C. Will Mr. Smeek prevail on a motion to suppress the recorded statements made in the backseat of the police vehicle? D. Will Mr. Smeek be subject to the federal ten year mandatory minimum sentence for possession of cocaine base? II. BRIEF ANSWERS A. No, Mr. Smeek is unlikely to prevail on a motion to suppress the 300 grams of hail seized from the traffic stop if the police officer s mistake about the level of tint on Mr. Cooper s window was reasonable. B. No, Mr. Smeek is unlikely to have standing as a passenger to challenge the constitutionality of the search and seizure because he does not have a possessory interest in the vehicle or an interest in the property seized.

2 C. No, Mr. Smeek is unlikely to prevail on a motion to suppress the recorded statements he made to Mr. Cooper while detained in the backseat of the police vehicle because he did not have a reasonable expectation of privacy. D. Yes, Mr. Smeek is likely to be subject to the federal ten year mandatory minimum sentence for cocaine base if hail constitutes cocaine base. III. FACTS Joshua Smeek was riding with two other college students, Mike and Charles Cooper, who he had just met. Mr. Cooper was driving on I-95 towards Dayton Beach when a police officer pulled them over. The officer stopped the car because he thought the driver s window was excessively tinted, making it impossible to see inside the car. He asked Mr. Cooper for his license and registration. While Mr. Cooper was finding the documents, the officer used a tint meter to measure whether the tint complied with Florida statutes, and concluded that the tint did in fact comply with the law. The officer reasoned that the brightness of the sun and the difference in color between the driver's window and the windshield made him think that the tinting was excessively dark. The officer returned Mr. Cooper s license and registration, told them to have a good day, and walked towards his patrol car. After taking a few steps, he turned around, and asked Mike "you don't mind if I search your car and all containers therein, do you?" Mr. Cooper responded, I guess not. The officer asked the three students to sit in the back of his patrol car while he searched Mr. Cooper s car. Once

3 in the backseat of the patrol car, Mr. Smeek asked Mr. Cooper, "Do you think it was a good idea to let him search the car?" His brother, Charles Cooper, added "Why did you do that? He'll find our stuff." The stuff Charles Cooper was referring to was small plastic bags containing white chunks of a non-crack cocaine named "hail, a new substance intended to evade the mandatory minimum sentences for crack cocaine under federal statutes. When smoked, the smoker experiences a more intense high than that produced from smoking crack. The officer found 300 grams of hail, half in the console between the front seats and half in a panel of the front seat passenger's door, with the packaging leading him to believe the hail was packaged for distribution. Searching the names and the birth dates, the officer found an outstanding arrest warrant for Mike and Charles Cooper on cocaine distribution charges, but nothing on Mr. Smeek. When the officer went to arrest the three students, Mr. Smeek protested, saying he barely knew the two brothers and he had no idea the drugs were in the car. Mr. Smeek argued that the console, which opened from the front, and the front door panel were not accessible to him as a backseat passenger. After the three were arrested, they discovered that the officer had tape recorded their conversation in the back of the patrol car, where Mr. Smeek questioned Mr. Cooper s consent to the search of his car. IV. DISCUSSION 1. Background of the Fourth Amendment

4 The Fourth Amendment of the United States Constitution provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const. amend. IV. A traffic stop for a traffic violation is a search within the meaning of the Fourth Amendment. Brendlin v. California, 551 U.S. 249, (2007). The ultimate touchstone of the Fourth Amendment is reasonableness. Riley v. California, 134 S. Ct. 2473, 2482 (2014). In order to determine whether or not the government has met the Fourth Amendment requirement for reasonable suspicion or probable cause, the court must evaluate whether the government s actions were reasonable. To be reasonable is not to be perfect, and so the court allows for some mistakes on the part of government officials, giving them fair leeway for enforcing the law in the community's protection. Brinegar v. United States, 338 U.S. 160, 176 (1949). A. Whether Mr. Smeek will prevail on a motion to suppress the 300 grams of hail seized from the traffic stop 1. Reasonableness of Officer s Mistake In Heien v. North Carolina, 135 S. Ct. 530 (2014), the Supreme Court resolved a circuit split on the issue of whether a police officer s mistake of law can justify

5 reasonable suspicion or probable cause under the Fourth Amendment. Prior to Heien, the Eleventh Circuit held that mistakes of law cannot provide justification. See United States v. Chanthasouxat, 342 F.3d 1271 (11th Cir. 2003). Heien held there is no critical distinction between mistakes of fact and mistakes of law. 135 S. Ct. at 536. If a police officer stops a vehicle for a traffic violation based on a mistake of fact or a mistake of law, the question is whether the officer s mistake was reasonable. Id. at 536. The courts evaluate the reasonableness of a police officer s actions based on what is objectively reasonable, and not the officer s subjective understanding. Id. at 540. In Heien v. North Carolina, 135 S. Ct. 530 (2014), a police officer in Dobson, North Carolina was observing traffic when he noticed a vehicle with a faulty brake light. The officer pulled the vehicle over, and informed the driver he would receive a warning ticket for the faulty break light. Heien, 135 S. Ct. at 536. In Smeek s case, the officer pulled over Mr. Cooper for having excessively tinted windows, making it impossible to see inside of the car. The officer in Heien was mistaken about whether North Carolina law required vehicles to have multiple working break lights, id. at 540, while the officer in Smeek s case was mistaken about the level of tint on the vehicle s windows. The Florida window tint statute at issue provides: A person shall not operate any motor vehicle on any public highway... on which vehicle the... side windows on... the operator s seat are composed of, covered by, or treated with any sunscreening material... which has the

6 effect of making the window nontransparent or which would alter the window s color, increase its reflectivity, or reduce its light transmittance.... FLA. STA (2005). The issue of whether the officer s mistake was reasonable is dependent on the presence of tint on the driver s window. If there was tint on the window, a court is likely to conclude that the officer s mistake about the level of tint was reasonable. The court is likely to reason that the brightness of the sun and the difference in color between the driver's window and the windshield made the window appear excessively tinted. However, if there was no tint on the window, it is likely a court will reach the opposite conclusion: the officer s mistake was unreasonable. 2. Constitutionality of Officer s Search Both Heien and Smeek s case involved a search that produced cocaine. In Heien v. North Carolina, 135 S. Ct. 530 (2014), after the officer issued the warning ticket, he asked Mr. Heien if he could search his vehicle. Heien, 135 S. Ct. at 535. Mr. Heien consented, and the officer began searching the vehicle. In the side compartment of a duffle bag, the officer found a sandwich bag containing cocaine. Id. at 535. In Smeek s case, after the officer concluded that the window was not excessively tinted, he asked Mr. Cooper if he could search his vehicle. Mr. Cooper consented, and the officer began searching the vehicle. The officer found 300 grams of a non-crack cocaine called hail, half in the console between the front seats and half in a panel of the front seat passenger's door.

7 The fruit of the poisonous tree doctrine provides that evidence gathered as the result of an unconstitutional search and seizure is tainted and must be suppressed. Wong Sun v. United States, 371 U.S. 471 (1963). However, tainted evidence may be cured by a defendant s consent to a search. To prevail, the government must prove that (1) the defendant s consent to the search was voluntary, and (2) the consent was obtained by means sufficiently distinguishable [from the illegal stop] to be purged of the primary taint. United States v. Santa, 236 F.3d 662, (11th Cir. 2000). The courts consider three factors in determining whether a defendant s consent was voluntary: (1) the temporal proximity of the illegal conduct and the consent ; (2) the presence of intervening circumstances ; and (3) the purpose and flagrancy of the initial misconduct. Brown v. Illinois, 422 U.S. 590, (1975). In Heien v. North Carolina, 135 S. Ct. 530 (2014), the Court did not reach the issue of taint. The appellate court found Mr. Heien s consent to the search was valid, and the court did not challenge its finding. Heien, 135 S. Ct. at 535. In Smeek s case, the issue of whether the hail seized from Mr. Cooper s vehicle was tainted and whether Mr. Cooper s consent to the search can remove the taint is dependent on whether the officer engaged in misconduct. If the officer was within the scope of the Fourth Amendment, the issue of taint is irrelevant. If the officer exceeded his constitutional authority, the issue of taint is critical. The question then becomes whether Mr. Cooper s consent to the search was voluntary and can remove the taint. Mr. Cooper s consent depends on the time lapse

8 between the initial traffic stop and the officer s request to search the vehicle and if there were any intervening circumstances. Because there is no information is available for either inquiry, no further analysis can be done. B. Whether Mr. Smeek has standing as a passenger to challenge the constitutionality of the search and seizure In Rakas v. Illinois, 439 U.S. 128 (1978), the Supreme Court formulated a test to determine whether a passenger in a vehicle has standing to challenge the constitutionality of a search and seizure. The passenger must have (1) a property or a possessory interest in the vehicle; (2) an interest in the property seized, and (3) a legitimate expectation of privacy in the areas of the vehicle in which they are passengers. Rakas, 439 U.S. at 148. "Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted." Rakas, 439 U.S. at 134 (citing Brown v. United States, 411 U.S. 223, 230 (1973); Simmons v. United States, 390 U.S. 377, 389 (1968); Wong Sun v. United States, 371 U.S. 471, 492 (1963)). A person who is aggrieved only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had their Fourth Amendment rights violated. Id. at 134 (citing Alderman v. United States, 394 U.S. 165, 174 (1969)). And since the exclusionary rule is an attempt to effectuate the guarantees of the Fourth Amendment, id. at 134 (citing United States v. Calandra, 414 U.S. 338, 347 (1974)), it is proper to permit only

9 defendants whose Fourth Amendment rights have been violated to benefit from the rule's protections. Id. If Mr. Smeek challenges the constitutionality of the search and seizure, a court is likely to conclude he does not have standing as a passenger. The court will likely reason he did not have a property or possessory interest in the vehicle because he barely knew Mike and Charles Cooper, or an interest in the hail seized because he had no idea the drugs were in the car. The court is also likely to reason he did not have a legitimate expectation of privacy in the console between the front seats and the panel of the front seat passenger's door where the hail was seized because they were not accessible to him as a backseat passenger. C. Whether Mr. Smeek will prevail on a motion to suppress the recorded statements made in the backseat of the police vehicle In United States v. McKinnon, 985 F.2d 525 (11th Cir. 1993), the Eleventh Circuit addressed the issue of whether a defendant has a subjective expectation of privacy under the Fourth Amendment while detained in the backseat of a police vehicle. The defendant s conduct must (1) exhibit a subjective expectation of privacy, and (2) the defendant s subjective expectation of privacy must be one that society is willing to recognize as reasonable. McKinnon, 985 F.2d at 527 (citing Smith v. Maryland, 442 U.S. 735, 740 (1979) and Katz v. United States, 389 U.S. 347, 361 (1967)). See also United States v. Gilley, 43 F.3d 1440 (11th Cir. 1995).

10 If Mr. Smeek moves to suppress the recorded statements made in the backseat of the police vehicle, a court is likely to deny his motion. The court may find that Mr. Smeek had a subjective expectation of privacy because he may not have thought that the vehicle was equipped with recording devices or that his statements would be recorded and used as evidence against him. But even if Mr. Smeek had a subjective expectation of privacy, a court is unlikely to find that it is one society is willing to recognize as reasonable because of the nature of detention in a police vehicle. D. Whether Mr. Smeek will be subject to the federal ten year mandatory minimum sentence for cocaine base The Anti-Drug Abuse Act of 1986 (ADAA) prohibits the production, distribution, possession and use of certain illegal drugs. The statute provides a mandatory ten year minimum sentence for drug offenses involving 5 kilograms or more of a mixture or substance containing a detectable amount of... cocaine, its salts, optical and geometric isomers, and salts of isomers, [or] 50 grams or more of a mixture or substance which contains cocaine base. 21 U.S.C. 841(b)(1) (2006). In DePierre v. United States, 131 S. Ct (2011), the Supreme Court addressed the issue of whether the term cocaine base in 21 U.S.C. 841(b)(1) (2006) is limited to drug offenses involving crack cocaine, or extends to any drug offense involving cocaine in its chemical base form. The Court concluded that the term cocaine base applies to any drug offense involving the chemical formula C 17 H 21 NO 4, or cocaine in its chemical base form.

11 In DePierre, Mr. DePierre was indicted on a charge of distributing 50 grams or more of cocaine base under 841(b)(1) (2006) after mistakenly selling two bags of drugs to an undercover government informant. At trial, a government chemist testified that the substance in the bags, which weighed 55.1 grams, was cocaine base. Another police officer testified that the substance was off white and chunky. 131 S. Ct. at In Smeek s case, the police officer found 300 grams of hail during a search of Mr. Cooper s vehicle. Hail is described as white chunks of a non-crack cocaine, which is intended to evade the mandatory minimum sentences for crack cocaine under federal statutes. The issue of whether Mr. Smeek will be subject to the ten year mandatory minimum sentence for cocaine base under 841(b)(1) (2006) is dependent on the chemical testing of hail. If the hail is tested and the results match the chemical formula C 17 H 21 NO 4, it is likely a court will conclude hail constitutes cocaine base and subject Mr. Smeek to the mandatory minimum sentence. If the hail is not chemically tested, it is likely that the court will still reach the same conclusion based on the purpose and effect of hail. V. CONCLUSION The primary question in Mr. Smeek s case is whether the officer s mistake of fact justified reasonable suspicion or probable cause under the Fourth Amendment. The answer will determine whether the hail and recorded statements were tainted as the result of an unconstitutional stop and must be suppressed.

12 If the officer s mistake was reasonable, taint is irrelevant. However, if it was unreasonable, taint is critical. The issue becomes whether Mr. Cooper s consent to the search cured the taint. If Mr. Cooper s consent was voluntary, Mr. Smeek is unlikely to prevail. However, even if Mr. Cooper s consent was involuntary, Mr. Smeek is still unlikely to prevail because he lacks standing as a passenger to challenge the search and seizure. The secondary question is the chemical composition of hail. If the hail is tested and it matches the chemical formula for cocaine base, Mr. Smeek is likely to be subject to the mandatory minimum. If the hail is not tested, it is still likely he will be subject to the mandatory minimum based on the purpose and effect of hail. If Mr. Smeek fails to suppress the hail and recorded statements, and they are introduced as evidence against him at trial, he is likely to be convicted.