In the Supreme Court of the United States

Transcription

1 NO In the Supreme Court of the United States JAMES T. OLIVER, PETITIONER, V. THE STATE OF CLINTONIA, RESPONDENT. ON WRIT OF CERTIORARI TO THE SUPREME COURT OF CLINTONIA BRIEF FOR RESPONDENT Dated: September 15, 2017 Team M Counsel for Respondent

2 QUESTIONS PRESENTED I. Whether a court can overturn a presumptively valid state statute which requires only some conceivable basis of relationship between means and ends by analyzing the statute at the time its challenged instead of the time the state legislature enacted it; and if so, does the state have a legitimate interest in promoting domestic industry such that the statute remains valid. II. Whether a government search exceeds the scope of a private search and implicates the Fourth Amendment where a private citizen views a child pornography image in a subfolder of a USB drive and a state officer s subsequent search remains within the exact subfolder. I

3 TABLE OF CONTENTS QUESTIONS PRESENTED... I TABLE OF CONTENTS... II TABLE OF AUTHORITIES... III STATEMENT OF JURISDICTION... 1 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED... 1 OPINIONS BELOW... 2 STATEMENT OF THE CASE... 2 SUMMARY OF THE ARGUMENT... 4 ARGUMENT... 5 I. Section comports with the Fourteenth Amendment because it was rationally related to a legitimate interest when it was enacted and remains so today II. A. Rational review doctrine requires that courts analyze the legitimacy of the legislative purpose at the time the law was enacted Carolene Products does not articulate the changed circumstances test petitioner argues The changed circumstances test contradicts modern rational review doctrine The changed circumstances doctrine would fundamentally disrupt rational review B. Even if this Court adopts the changed circumstances test, is still valid Economic protectionism is a legitimate interest The Fourth Amendment is not implicated when a government search does not occur A. The scope of the private search was not exceeded Under the closed container approach, Private Jones did not exceed the scope of the initial private search Under the virtual certainty approach, Private Jones did not exceed the scope of the initial private search B. The reasonable expectation of privacy standard is the applicable standard Jones did not overrule Jacobsen Even if Jones silently overruled Jacobsen, the good faith exception shields the officer s conduct CONCLUSION APPENDIX... A II

4 Cases TABLE OF AUTHORITIES Block v. Hirsh, 256 U.S. 135 (1921) Chaselton Corp., v. Sinclair, 264 U.S. 543 (1924)... 8, 10, 11, 12 Coolidge v. New Hampshire, 403 U.S. 443 (1971) Craigmiles v. Giles, 312 F.3d 220 (6th Cir. 2002) Davis v. United States, 131 S.Ct (2011) FCC v. Beach Communications, Inc., 508 U.S. 307 (1993)... 6, 12, 15, 16 Ferguson v. Skrupa, 372 U.S. 726 (1963)... 17, 19, 20 Fitzgerald v. Raching Association, 539 U.S. 103 (2003) Gregory v. Ashcroft, 501 U.S. 452 (1991) Heffner v. Murphy 745 F.3d 56 (3rd Cir. 2014)... 14, 17 Heller v. Doe, 509 U.S. 312(1993) , 15 Katz v. United States, 389 U.S. 347 (1967) Lenhausen v. Lake Shore Auto Parts Co., 410 U.S. 356(1973)... 12, 16 Merrifield v. Lockyer, 547 F.3d 978 (9th Cir. 2008) Milnot Co., v. Richardson, 350 F. Supp. 221 (S.D. Ill. 1972) Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456 (1981)... 9, 11, 12, 15 Murillo v. Bambrick, 681 F.2d 898 (1982)... 13, 17 Powers v. Harris, 379 F.3d 1208 (10th Cir. 2004) Rann v. Atchinson, 689 F. 3d 832 (7 th Cir. 2012)... 21, 22, 25 Riley v. California, 134 S.Ct (2014)... 22, 27 Santos v. City of Houston, 852 F. Supp. 601 (S.D. Tex. 1994) Sensational Smiles, LLC., v. Mullen, 793 F.3d 281 (2nd Cir. 2015) III

5 St. Joseph Abbey v. Castile, 712 F.3d 215 (5th Cir. 2015) United States v. Carolene Products Co., 304 U.S. 144 (1938)... passim United States v. Jacobsen, 466 U.S. 109 (1984)... 20, 21, 29 United States v. Johnson, 806 F. 3d 1323 (11 th Cir. 2015) United States v. Jones, 565 U.S. 400 (2012) United States v. Lichtenberger, 786 F. 3d 478 (6 th Cir. 2015)... 21, 26, 27 United States v. Runyan, 275 F. 3d 499 (5 th Cir. 2011)... 21, 22, 25, 26 Unites States v. Simpson, 904 F.2d 607 (11 th Cir. 1990) Vance v. Bradley, 440 U.S. 93 (1979)... 6 Walter v. United States, 447 U.S. 649 (1980)... 20, 21 Whole Woman s Health v. Hellerstedt. 133 S.Ct (2016)... 7, 9 Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483(1955) Other Authorities Allison Orr Larsen, Do Laws Have a Constitutional Shelf Life?, 94 Tex. L. Rev., 59 (2015)... 6 BLACK S LAW DICTIONARY (10th ed.)... 9 Maria Ponomarenko, Note, Changed Circumstances and Judicial Review, 89 N.Y.U. L. REV (2014)... 6 Sean G. Williamson, Comment, 17 U. PA. J. CONST. L. 591 (2014)... 6 IV

6 STATEMENT OF JURISDICTION The Circuit Court of the Fifteenth Judicial Circuit, in and for Bill County Clintonia entered judgement on April 4, The State of Clintonia appealed the Circuit Court s order to the Supreme Court of Clintonia which reversed the judgement below and remanded the case for trial on October 29, A petition for Writ of Certiorari was timely filed in this Court on November 10, 2016 and was granted on June 30, The Jurisdiction of this Court rests on 28 U.S.C (a). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The Fourth Amendment to the United States Constitution provides the following: 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. The Fourteenth Amendment to the United States Constitution provides the following: All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. The relevant Clintonia statutory provisions are reproduced in an appendix to this brief. See infra p. A. 1

7 OPINIONS BELOW The opinion of the Circuit Court of the Fifteenth Judicial Circuit, in and for Bill County, Clintonia can be found on page two of the record. The opinion of the Supreme Court of Clintonia can be found on page eighteen of the record. STATEMENT OF THE CASE On November 31, 2013, Bruce Walker arrived in Sandersburg, Clintonia to visit his dying mother with his wife and children. R. at 5. The following day, Walker s mother passed away and he began making funeral arrangements. R. at 6. Walker came across James Oliver s website while organizing his mother s funeral. Id. Walker contacted Oliver, who then met the grieving Walker at the funeral home, where he offered Walker a deal on a casket that was too good to refuse. Id. Oliver was previously a monk at St. Michael s Abbey in Sandersburg. R. at 5. After noticing the demand for simple caskets while at the Abbey, Oliver requested permission to manufacture caskets. Id. Oliver s request was denied, yet he disobeyed the direct orders of his superior and began manufacturing caskets. Id. Oliver continued to manufacture these caskets after he left the Abbey in late Id. The casket Oliver offered Walker was one of these contraband caskets, and was grossly cheaper than other caskets available. R. at 6. Unaware of Clintonia s FDEA, Walker purchased the casket. Id. Walker contacted Oliver the following day to extend his gratitude, and Oliver divulged that, although he makes the best caskets in town at the lowest rates, he is unable to attain a license to sell them. Id. When Walker asked if one needs a license to sell a casket in Sandersburg, Oliver told him there was in fact a criminal statute that requires a license to sell a casket, but went on to confidently admit he deliberately disregards this obligation. Id. Oliver 2

8 even went so far as to disclose the ins-and-outs of his criminal enterprise to Walker, a complete stranger. He detailed how he kept a fake license on him in addition to a printable version on a USB drive in his nightstand. Id. The next day, Walker s moral compass led him to Oliver s house to confront him about this blatant indifference for the law. Id. While looking for Oliver, Walker found the nightstand that Oliver had declared housed his fraudulent license. There he saw a USB drive with Dup. License/Fun! labeled on the device. Id. Walker took the drive, later plugged it into his computer, and saw that the drive contained two folders titled DL and F. Id. Walker clicked on the F folder, which contained around 100 randomly numbered subfolders, and clicked on the first of those subfolders. R. at 7. Walker clicked on one of the 11 JPEG files, which were identified by number, and was traumatized to find the sickening image of a young minor, around the age of Walker s daughter, engaged in sexual conduct with an adult. Id. Walker immediately closed the image and fled to the restroom, where he fell violently ill from the image he had seen. Id. Walker then brought the USB drive to the Sandersburg police department and explained to Officer Private Jones the contents of the drive. Id. Jones specifically asked Walker if he was a cop, to which Walker responded that he was not. Id. After confirming that Walker was a private citizen, Jones reestablished that Walker had seen child pornography on a folder in the USB drive. Id. Jones then plugged the USB into his computer while Walker guided him to the F folder and first subfolder and declared it s one of those, before he walked away. Id. 1 Jones clicked through images 1-10 in order, all of which contained images of abhorrent child pornography except for the final image which contained a copy of Oliver s fraudulent license. 1 Walker could not bear witness to the contents a second time because of the nightmarish memories from his own daughter s molestation. R. at 7. 3

9 Id. Private Jones then provided his superiors with the USB drive and informed them a private citizen had provided it after seeing it contained child pornography. Id. Oliver was indicted on Eleven Counts. R. at 2. Count One alleged that Defendant violated , Clint. Stat. by selling a casket without a funeral director s license. Id. Counts Three through Eleven alleged that Defendant possessed nine distinct images of child pornography in violation of the Clintonia Child Protection Act, , Clint. Stat. Id. Oliver moved to dismiss all Counts under Clintonia Rule of Criminal Procedure 3.190(c)(4). R. at 3. The proceedings were stayed to provide the Clintonia legislature with an opportunity to review the Funeral Directors and Embalmers Act ( FDEA ) and the enforcement provisions in The legislature subsequently repealed the FDEA s license requirement as applied to time-of-need casket sellers along with Id. However, the repeal did not provide retrospective relief to Oliver in this criminal action. Id. The trial court dismissed Count One on Fourteenth Amendment grounds and Counts Three through Eleven on Fourth Amendment grounds. R. at 15. The State of Clintonia appealed to the Supreme Court of Clintonia. R. at 17. The Supreme Court of Clintonia reversed the trial court s ruling and remanded the case for trial. R. at 25. SUMMARY OF THE ARGUMENT Section comports with the Fourteenth Amendment because it was rationally related to a legitimate interest when it was enacted and it remains so today. The Clintonian legislature had a legitimate interest to protect its citizens from fraudulent business practices in the funeral industry and to ensure adequate public health standards. When the Clintonian legislature enacted the licensing requirement it was reasonable the licensing requirement promoted these interests because of the training required to receive a license. This Court 4

10 analyzes the relationship between means and ends at the time of enactment. This Court has never held otherwise. The trial court s opinion threatens to fundamentally disrupt rational review doctrine by analyzing the legitimacy of the government interest at the time the law was challenged. Nevertheless, when analyzed from this perspective the licensing requirement remains valid. Economic protectionism is a legitimate interest for a state to promote. The licensing requirement fosters the viability of the funeral industry in Clintonia. The Fourteenth Amendment protects only invidious discrimination. To strike down the licensing requirement would destroy the principle of federalism. The Fourth Amendment was not implicated because a government search did not occur. Jones remained within the scope of Walker s initial private search, and therefore there was no intrusion on the defendant s reasonable expectation of privacy. Under the private search doctrine, the scope of the private search included any remaining photos within the flash drive because the flash drive is like a closed container in which the frustration of the privacy of one file by a private search allows one to open the remaining files on the flash drive. Additionally, the scope of the private search allowed Jones to view the remaining files on the flash drive when he was virtually certain he would obtain no information he had not already discovered. Thus, this Court should uphold the Supreme Court s ruling. ARGUMENT I. Section comports with the Fourteenth Amendment because it was rationally related to a legitimate interest when it was enacted and remains so today. Nearly a century ago, this Court returned to the original constitutional proposition : an unelected federal judiciary cannot substitute [its] social and economic beliefs for the judgment of [state] legislative bodies ; they are the ones elected to pass the law. Ferguson v. Skrupa, 372 U.S. 726, 730 (1963) To arrive there, this Court acknowledged that the Fourteenth Amendment 5

11 is not a license for courts to judge the wisdom, fairness, or logic of legislative choices. FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993). The Clintonian legislature made a legislative choice: in Clintonia, one must obtain a license before selling a casket. Petitioner knew this but sold caskets anyways. Instead of resorting to the voting booth for his remedy he comes to this Court to plead judicial intervention for the mistaken and improvident decision of the Clintonian legislature, or so he believes. But, he cannot show that Clintonia s licensing requirement was so unrelated to the achievement of any combination of legitimate purposes. Vance v. Bradley, 440 U.S. 93, 97 (1979) (emphasis supplied). So, he fails. A. Rational review doctrine requires that courts analyze the legitimacy of the legislative purpose at the time the law was enacted. Petitioner s success in the trial court relied on his hail-mary-argument. Petitioner conceded the Clintonian legislature had a legitimate interest to protect its citizens from fraudulent business practices in the funeral industry. Petitioner also did not challenge the rational relation of to this interest at the time the legislature enacted the law. Rather, petitioner argues, that is no longer be rationally related today because the facts upon which the legislature based enactment of have ceased to exist. See United States v. Carolene Products Co., 304 U.S. 144, (1938). 2 The trial court was convinced and noted that this Court recently reaffirmed the validity of the Carolene Products changed circumstances test in Whole Woman s Health v. Hellerstedt. 133 S.Ct. 2292, 2306 (2016). But, the Supreme Court of Clintonia correctly reversed the trial court s erroneous reliance on this seventy-nine-year-old dictum. This Court should uphold the state 2 The nomenclature surrounding this argument varies. See Allison Orr Larsen, Do Laws Have a Constitutional Shelf Life?, 94 Tex. L. Rev., 59 (2015) ( constitutional shelf life ); Sean G. Williamson, Comment, 17 U. PA. J. CONST. L. 591 (2014) ( contemporary contextual analysis ); Maria Ponomarenko, Note, Changed Circumstances and Judicial Review, 89 N.Y.U. L. REV (2014) ( changed circumstances ). This brief will refer to petitioner s argument as changed circumstances. Ponomarenko, supra. 6

12 supreme court for three reasons: (1) established rational review doctrine does not analyze the rationality of a statute at any time other than the time of enactment; (2) Carolene Products does not even support the notion that became irrational in 2012 or at any time before its repeal; and (3) the trial court s reasoning would fundamentally disrupt Fourteenth Amendment doctrine. 1. Carolene Products does not articulate the changed circumstances test petitioner argues. In Carolene Products, a defendant challenged his indictment which alleged that he violated the Filled Milk Act. 304 U.S. at 145. There the defendant, like petitioner here, argued that the Act denied equal protection of the laws and alternatively wrought a deprivation of due process. Carolene Products Co., 304 U.S. at In the second division of the opinion, the Court concluded that the Filled Milk Act did not infringe on the Fifth Amendment. Carolene Products Co., 304 U.S at Based on congressional testimony and studies, the lack of nutrition in imitation milk appeared dangerous to the public health. Carolene Products Co., 304 U.S. at Because of this risk, Congress had a legitimate interest to protect, and prohibiting filled milk was an appropriate means of doing so. Carolene Products Co., 304 U.S. at Thus, the Act was valid and did not violate due process. Carolene Products Co., 304 U.S. at 148. No one generally remembers the case for the oblique analysis in the second division, but rather what the Court went on to say in footnote four. Petitioner s argument relies on an even more remote passage. In the third division of the opinion, after the extended speculation about new levels of scrutiny, the Court quickly postulated that the constitutionality of a statute predicated upon the 3 The Court rejected the equal protection argument because [t]he Fifth Amendment has no equal protection clause. Carolene Products Co., 304 U.S at

13 existence of a particular state of facts may be challenged by showing to the court that those facts have ceased to exist before it briefly concluding the opinion. Carolene Products Co., 304 U.S at Petitioner and the trial court seized this language and wielded it to invalidate Petitioner s argument is thus: Carolene Products demonstrates that a litigant may procure invalidation of a statute by showing that circumstances have changed and the rational basis of the statute, analyzed at the time of challenge, no longer justifies the legislature s interest. Thus, no longer perches on its rational basis because consumer protection is no longer a legitimate interest. This is evident, petitioner argues, because a study found in the legislative record at the time was enacted has since been disproved. So, the facts upon which the Clintonian legislature passed were mistaken and thus the law itself cannot be rationally related to the reasons the legislature acted. See Chaselton Corp., v. Sinclair, 264 U.S. 543, 547 (1924) ( [A] Court is not at liberty to shut its eyes to an obvious mistake, when the validity of the law depends on the truth of what [the legislature] declared. ); but see Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464 (1981) ( Where there was evidence before the legislature reasonably supporting the classification, litigants may not procure invalidation of the legislation merely by tendering evidence in court that the legislature was mistaken. ). But, petitioner and the trial court s interpretation of the changed circumstances doctrine discussed in Chaselton Corp. and cited to in Carolene Products is mistaken. First, the trial court reasoned that this Court has reaffirmed the supposed changed circumstances test in Whole Woman s Health v. Hellerstedt, 136 S. Ct. 2292, 2306 (2016). Whole Woman s Health, however, cited to Carolene Products in the division of the opinion discussing claim preclusion. 136 S. Ct. at And, the opinion s reliance on Carolene Products was simply to demonstrate that the claim in that suit was not precluded by an earlier claim because it 8

14 was not the same claim litigated previously facts had changed and a new claim arose. Whole Woman s Health, 136 S. Ct. at ; see Res Judicata, BLACK S LAW DICTIONARY (10th ed.). 4 Whole Woman s Health, did not embrace, nor even hint, that a law s rationality is reviewed from the perspective of the time of challenge rather than enactment. Second, Chasleton Corp. v. Sinclair, which Carolene Products paraphrases for the supposed changed circumstances test, also does not stand for the proposition that petitioner or the trial court surmise. Carolene Products Co., 304 U.S. at 153. Chaselton does state that a Court may invalidate a law when it is based on legislative facts that are mistaken. 264 U.S. at 547. But, the language is quite a bit stronger than the Carolene Products dicta leads its reader on to believe. To quote rather than paraphrase, see Carolene Products, 304 U.S. at 153, But even as to [legislative declarations] a Court is not at liberty to shut its eyes to an obvious mistake, when the validity of the law depends upon the truth of what is declared. 264 U.S. at 547 (emphasis supplied). And, the context is quite important. Chaselton, concerned a statute passed by Congress governing rents in the District of Columbia. 264 U.S. at 547; see Block v. Hirsh, 256 U.S. 135 (1921) (cited by Chaselton while discussing the validity of the same statute). The statute was passed in 1919 for a very specific reason, to address an emergency. 264 U.S. at 547. Although the emergency was publicly notorious and almost world-wide fact, Congress declared, in the statute itself, that it was necessary to address that emergency and began controlling the rental housing market in the District of Columbia. Block, 256 U.S. at The original act was set to expire in two years, but it was reauthorized when Congress declared that the emergency still existed and its 4 An affirmative defense barring the same parties from litigating a second lawsuit on the same claim, or any other claim arising from the same transaction or series of transactions and that could have been but was not raised in the first suit. Res Judicata, BLACK S LAW DICTIONARY (10th ed.) 9

15 expiration was extended to May of U.S. at 547. On that day, Congress again declared the emergency still existed and extended the act to Chaselton Corp., 264 U.S. at 547. One month before it was set to finally expire, the Chaselton Corporation found itself litigating an appeal in the Supreme Court of the United States and arguing that the statute no longer was valid because the facts upon which the legislature had enacted it, and extended it, no longer existed. Chaselton Corp., 264 U.S. at Justice Holmes then stated the proposition that Carolene Products cites Chaselton for. 264 U.S. at 547. But, even then the Court could not conclude that Congress was necessarily mistaken and that the basis of the statute no longer existed. Chaselton Corp., 254 U.S. at 548 (remanding the case to the trial court to determine whether the conditions in D.C. still existed). Chaselton is a unique case and it is quite different than petitioner s case. Although the plaintiff, like petitioner here, challenged the law as violating due process, the analysis Justice Holmes alludes to is different than the analysis used for petitioner s claim. See Chaselton Corp., 254 U.S. at There, Congress clearly identified in the very text of the statute its legitimate interests and purpose for enacting the statute. Here, petitioner relies on a floor statement by the bill s sponsor which referenced a study showing the bill would protect consumers and referenced the positive benefits the bill would provide to Clintonian morticians. But this Court has made clear [it] will not invalidate a state statute under the Equal Protection Clause merely because some legislator[] sought to obtain votes for the measure on the basis of its beneficial side effects on state industry. Clover Leaf Creamery Co., 449 U.S. at 463, n

16 Whatever the Carolene Products dictumizers 5 assumed for the present purposes [of that case] is not reasoning to invalidate this statute, nor did it persuade those dictumizers then. Carolene Products, Co., 304 U.S. at 154. In both Carolene Products and Chaselton, this Court mused about the doctrine, but ultimately neither statute at issue was overturned because of changed circumstances. Carolene Products Co., 304 U.S. at 154; Chaselton Corp., 264 U.S. at The changed circumstances test contradicts modern rational review doctrine. This Court s modern formulation of rational-basis review does not contemplate petitioner s argument. In the seventy-nine years since Carolene Products, this Court has never held that rational-basis review permits courts to determine a statute s validity based on the circumstances at the time of the challenge. Cf. Allison Orr Larson, Do Laws Have a Constitutional Shelf Life?, 94 TEX. L. REV. 59, 70, , (2015). 6 The Court has mused about the concept theoretically, but it has never invalidated a law because circumstances viewed at the time of the challenge have changed such that the legitimacy of the government interest when it enacted the law is now destroyed. See id. The Court s silence on changed circumstances doctrine has not gone unnoticed. Murillo v. Bambrick, 681 F.2d 898, 912, n. 27 (1982) (noting that the Supreme Court does not appear to have determined whether changed circumstances are relevant consideration in equal protection 5 Schuette v. Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary, 134 S.Ct. 1623, (2014) (Scalia, J., concurring) (referring to the four justices joining the third division of the opinion in United States v. Carolene Products, 304 U.S. 144 (1938)) 6 Larsen notes that the Court in Shelby County v. Holder, 133 S. Ct (2013) appears to have finally embraced a changed circumstance analysis. Larsen, supra, at 70. But Larsen as well as many other scholars note that the Court was awkwardly silent on the level of scrutiny employed in Shelby County which was probably not traditional rational review, if it was even rational review. Id. at Larsen thesis argues that the changed circumstances doctrine should not be employed under rationality review because it requires increased fact-finding by the court. Id. at But, rational-basis review is not conceived for a court to conduct extensive fact-finding. Id. 11

17 analysis). 7 The void of judicial opinions embracing the doctrine is so vast that the echo of courts singing the Carolene Products dictum is almost imperceptible. Santos v. City of Houston, 852 F. Supp. 601, 607 (S.D. Tex. 1994); Milnot Co., v. Richardson, 350 F. Supp. 221, (S.D. Ill. 1972). 8 Even in the ivory halls of academia, the siren s song does not resonate. Larsen, supra, at 62 ( it is one that remains radically under-theorized ). Perhaps because there is a fundamental difference between legislative enactments that may be archaic and those that are irrational. Heffner v. Murphy 745 F.3d 56, 86 (3rd Cir. 2014). The irrational law violates the constitution because it completely ignores the states objective; it is arbitrary. Heller v. Doe, 509 U.S. 312, 324 (1993). The antiquated law merely tapers in fitness to the state s objective, but this is not a constitutional flaw. Heffner, 745 F.3d at 62 (overturning lower court s invalidation of Pennsylvania s funeral regulations that included licensing requirements similar to Clintonia s; although the passage of time may have suggested that the state legislature should revisit the law, it was not proper for court to overturn it under rational- 7 Burlington N. R. Co. v. Dept. of Public Service Regulation, 763 F.2d 1106, (1985) ( The Supreme Court has been ambivalent on whether changed circumstances can transform a once-rational statute into an irrational law.... Even if... we consider the rationality of the [state law] as of 1985 instead of 1969 Burlington Northern has failed to meet its burden. The railroad has not presented evidence sufficient to persuade the court that changes in rail service in the last 16 years have so drastically altered... [that] the bases for the 1969 enactment no longer exist. ); Jones v. Schneiderman, 888 F. Supp. 2d 421, (S.D.N.Y. 2012) (noting that the Second Circuit has not invalidated a law as irrational based on changed circumstances and doubting that it is relevant in rational-basis review). 8 Some have cited the Tenth Circuit Court of Appeals as recognizing the viability of the changed circumstances doctrine. See e.g., Johanna Talcott, Aging Disgracefully: Do Economic Laws Remain Rational in spite of Changed Circumstances?, 11 FLA. INT L. U. L. REV. 495, 510 (2016) (citing Diaz v. City and County of Denver, 567 F.3d 1169 (10th Cir. 2009). But, the Tenth Circuit was reviewing a claim dismissed under Fed. R. Civ. P. 12(b)(6). Diaz v. City and County of Denver, 567 F.3d 1169, 1178 (2009). Reviewing the dismissed claim in the light most favorable to the plaintiffs and assuming the truth of all well-pleaded facts, the court could not as a matter of law reject the plaintiffs pleadings considering plaintiffs alleged that the law could be somehow be shown irrational now with the state of science. Id. at 1178, The court did not cite to Carolene Products or any other opinion embracing a changed circumstances doctrine. Id. It is uncertain how much the Tenth Circuit was embracing a changed circumstance doctrine or just applying the standard of review of a motion to dismiss. 12

18 basis review). Local governments must resolve practical problems which justifies, if not, requires rough accommodations. Heller, 509 U.S. at 321. Clintonia enacted to protect consumers in an industry. It could have perceived this necessary to reduce all temptations of commercialism. Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 491 (1955). Or to elevate the funeral industry to that of a professional level. Williamson 348 U.S. at 491. It could have perceived the unlicensed and untrained dealer of funeral merchandise as potentially injurious to the public because of the unique aspects of the industry (like bereavement and familial strife). See Ferguson, 372 U.S. at (holding state statute restricting practice of debt collection to lawyers valid because state could reasonably conceive that industry would be better served with lawyers than nonlawyers). The study only demonstrates that the legislature may have been mistaken, if it did in fact rely on the study. But that is not a constitutional flaw. See Clover Leaf Creamery Co., 449 U.S. at 464. Further, this Court has never require[d] a legislature to articulate its reasons for enacting a statute, [so] it is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction that is, a higher amount of fraud by unlicensed casket sellers actually motivated the legislature. Beach Communications, Inc., 508 U.S. at 315. It follows then, that the absence of other legislative facts that may rebut the study and explain the distinction has no significance in rational-basis analysis. Beach Communications, Inc., 508 U.S. at 315. This is a guiding principle that courts must faithfully adhere[] so as not to destroy the legislative branch s deserved independence and ability to function. Beach Communications, Inc., 508 U.S. at 315. The Clintonian legislature cannot keep voluminous accounts of all the considerations which move its members to enact laws. Lenhausen v Lake Shore Auto Parts 13

19 Co., 410 U.S. 356, 364 (1973) (citations omitted). And, a federal court cannot hold this against Clintonia and assume that [its legislature s] action [was] capricious. Lenhausen, 410 U.S. at 364. Nor can a federal court assume that it is more informed of the conditions in Clintonia than the state s entire legislature. Lenhausen, 410 U.S. at The ultimate inquiry under the Fourteenth Amendment is whether the difference in treatment is an invidious discrimination. Lenhausen, 410 U.S. at 359. Section does not invidiously discriminate simply because it requires all who deal in funeral services to obtain a license first. 3. The changed circumstances doctrine would fundamentally disrupt rational review. Apart from having little support in this Court s rational-basis review, changed circumstance analysis could fundamentally disrupt this Court s clear guidance. In United States v. Then, the Second Circuit reviewed a challenge to the sentencing guidelines for crack-cocaine. 56 F.3d 464, 466 (1995). The defendant challenged the guidelines as violating equal protection because the 100:1 ratio of the crack cocaine sentence to powder cocaine sentence discriminated against minorities more likely to use crack cocaine. Id. The defendant reasoned that no scientific evidence supported treating crack cocaine as more dangerous than powder cocaine. Id. Here, the defendant was making somewhat of a changed circumstances argument. The majority opinion rejected the argument; however, Jude Calabresi wrote a powerful concurrence. Id. at Judge Calabresi sympathized with the changed circumstance argument, but he ultimately concluded that adopting a changed circumstance analysis would be difficult to implement. See id. at 468. Too many issues of line drawing [would] make such judicial decisions hazardous. Id. Judge Calabresi was correct to note the difficulty in developing a judicial standard. The Tenth Circuit also pointed to similar concerns in Heffner v. Murphy. 745 F.3d at 86. The advent of air conditioning surely affected the rationality of the some of the state s funeral regulations. Id. But, that only suggested that the legislature might need to revisit the regulations, 14

20 not that a court should strike them down. Id. Citing to modern rational review analysis, the court noted that the legislature is not required to strike a perfect balance, how then could a court decide what crossed the threshold of imperfect. Id. This Court must also consider the institutional costs a changed circumstances test could burden the legislature with. Murillo, 681 F.2d at 911. As the Third Circuit noted when rejecting the changed circumstances test, the Constitution neither demands nor expects omniscient oversight. Id. Every legislative session, legislatures across the country would have to revisit every statute to ensure means and ends unite. Even then, all the legislators would still have to agree that circumstances had so changed, which parts of the law would need updating, and then actually pass legislation making those changes. The changed circumstances test does not belong in rational-basis review. It steals from the legislature what is constitutional given to them: the power to make policy determinations through enacting laws. B. Even if this Court adopts the changed circumstances test, is still valid. A changed circumstances test does not save petitioner s claim. Clintonia has a legitimate interest in promoting one of its own domestic industries. This interest, coupled with the Clintonian legislature s broad scope [of power] to experiment with economic problems, permits it to require casket sellers to obtain a license before selling caskets in Clintonia. Ferguson, 372 U.S. at 730. Section does not violate any specific federal constitutional prohibition or federal law in doing so. Id. 9 Thus, is valid. To hold otherwise would destroy the principles of federalism and the power of sovereign states to regulate their eternal economic affairs. Sensational Smiles, LLC., v. Mullen, 793 F.3d 281, 287 (2015). 1. Economic protectionism is a legitimate interest. 9 The parties agree the casket Oliver sold was wholly intrastate commerce. R. at 5, n

21 The Supreme Court of Clintonia upheld on alternative grounds. Even though it rejected the changed circumstances test, the court held that the law was valid despite the other concerns because economic protectionism is a legitimate state interest. This reasoning is uncontroversial. See Fitzgerald v. Raching Association, 539 U.S. 103 (2003) (upholding state law advancing economic interest of state race track industry at expense of riverboat industry because a rational legislator might so believe it advanced economic interests of the race tracks). But, recently several circuits have ignored this Court s precedent and seek to return to the days of Lochner. See St. Joseph Abbey v. Castile, 712 F.3d 215 (5th Cir. 2015); Merrifield v. Lockyer, 547 F.3d 978 (9th Cir. 2008) (rejecting economic protectionism as a legitimate interest and striking down state laws under rational review); See also Craigmiles v. Giles, 312 F.3d 220 (6th Cir. 2002) (same). However, these circuits are mistaken; the era of Lochner perished long ago. Ferguson, 372 U.S. at 730. This Court should uphold the judgment of the Supreme Court of Clintonia holding economic protectionism a legitimate state interests. It will reaffirm this Court s forceful departure from abusing the vague contours of the Due Process clause and Equal Protection clause to invalidate legitimate state laws because a majority of the Court believed them to be economically unwise. Ferguson, 372 U.S Baseball may be the national pastime of the citizenry, but providing economic benefits and incentives to in-state industries remains the favored pastime of state and local government. Powers v. Harris, 379 F.3d 1208, 1221 (2004). It s called politics. Sensational Smiles, LLC, 793 F.3d at 285. In Powers v. Harris, the Tenth Circuit held economic protectionism was a legitimate state interest and upheld a law eerily similar to the FDEA. 379 F.3d at The court reasoned that there is simply no way to differentiate economic protectionism from other state laws that seek to promote the public good. Id. at Like this court stated in Williamson v. Lee Optical the 16

22 tenth circuit warned that, there is no Platonic form against which to judge the wisdom of economic regulation. Id. A court would simply be substituting its own economic view of the world over the view of elected representatives. Id. At the hands of a federal court, it would raise substantial federalism concerns. Id. Under our federalist structure, there exists a tension between federal and state power arising from the nature of each level of government s sovereignty. Gregory v. Ashcroft, 501 U.S. 452, 459 (1991). The promise of liberty rests carefully balanced by this Court on this point of tension. Gregory, 501 U.S. at 459. The success of this structure is reflected in the numerous advantages it provides. Gregory, 501 U.S. at 458. Chiefly among those are that it increases opportunity for citizen involvement in democratic processes; it allows for more innovation and experimentation in government; and it makes government more responsive by putting the States in competition for a mobile citizenry. Gregory, 501 U.S. at 458. The doctrine of rational review restored the proper amount of tension contemplated in this original constitutional proposition. Ferguson v. Skrupa, 372 U.S. 726, 730 (1963). And it promotes the promise of federalism espoused in Gregory. This Court should reject the view of the Fifth, Sixth, and Ninth Circuits in favor of the Second and Tenth Circuits. Reaffirm this Court s resolve to respecting the dignity of the states in the management of their domestic affairs. II. The Fourth Amendment is not implicated when a government search does not occur. The Fourth Amendment grants people the right to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. U.S. CONST. AMEND. IV. This Fourth Amendment protection is limited only to those searches conducted by government officials. Burdeau v. McDowell, 256 U.S. 465, 476 (1921). The Fourth Amendment is wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not 17

23 acting as an agent of the government. Walter v. United States, 447 U.S. 649, 662 (1980). Where a private citizen has provided a government official with the findings of a private search, the individual s expectation of privacy has already been frustrated, and state actors are therefore not expected to halt such a private voluntary search or avert their eyes. United States v. Jacobsen, 466 U.S. 109, 117 (1984); Coolidge v. New Hampshire, 403 U.S. 443, 489 (1971). This Court held the degree to which a state actor s subsequent governmental search exceeds the scope of the initial private search determines if an individual s expectation of privacy was violated. Walter, 447 U.S. at 657. A. The scope of the private search was not exceeded. A subsequent governmental search exceeds the scope of the initial private search where it significantly expands the search such that the state actor essentially conducts an independent search of his own. Id. at 657 (holding the scope of the initial search was exceeded where employees viewed films by holding them to light and state actors subsequently viewed the films via the entirely different method of a projector). But see, Jacobsen, 466 U.S. at 119 (holding the subsequent government search of the bags within the plastic tubes did not exceed the scope of the initial search of the plastic tubes). A circuit split has developed in how to determine if the government has exceeded the scope of a private search when the subsequent search is more thorough. Rann v. Atchinson, 689 F. 3d 832 (7 th Cir. 2012); United States v. Runyan, 275 F. 3d 499 (5 th Cir. 2011); United States v. Lichtenberger, 786 F. 3d 478 (6 th Cir. 2015). Under the private search doctrine Jones conduced his search within the scope of Walker s initial search. Therefore, Oliver s reasonable expectation of privacy was not violated and the Fourth Amendment is not implicated. 1. Under the closed container approach, Private Jones did not exceed the scope of the initial private search. 18

24 Government actors do not exceed the scope of a prior private search when they examine the same materials that were examined by the private searches, but they examine these materials more thoroughly than did the private parties. Unites States v. Simpson, 904 F.2d 607, 610 (11 th Cir. 1990); Rann, 689 F. 3d at 837 (holding where a mother and daughter handed the police one memory zip card and one zip drive of pornographic photos taken by the defendant the police did not exceed the scope of the initial search when they examined all the photos more thoroughly than the mother and daughter because it was a more thorough investigation of the already frustrated closed container). Moreover, state actors do not exceed the initial search when they examine more items within a closed container than did the private searchers. Runyan, 275 F. 3d at 465 (holding where a defendant s ex-wife discovered a floppy disk containing child pornography, along with CD s and ZIP disks, and subsequently turned them over to the police after viewing twenty of the CD s and floppy disks, the police looking at the contents of the floppy disks and CD s that she viewed did not exceed the scope of the initial search because the defendant s expectation of privacy of those electronic storage devices was already frustrated). But see United States v. Johnson, 806 F. 3d 1323, 1335 (11 th Cir. 2015) (holding a subsequent government search of a cellular device exceeds the scope of a private search where a Walmart employee looked at pornographic photos and one video on the cell phone and the government agent viewed a second video because the scope of the closed container of a cellphone does not expand to unviewed parts of it); Riley v. California, 134 S.Ct (2014) (holding the search incident to arrest exception to the Fourth Amendment did not justify a warrantless cell phone search, emphasizing that cellular devices require special heightened treatment under the Fourth Amendment because they contain a vast amount of private information). 19

25 Jones operated well within the scope of Walker s initial private search. Jones search of the USB drive is analogous to a search of a closed container, just as were the memory card in Rann and the floppy disk in Runyan. After Walker guided Jones to the USB s first subfolder of the F folder, Jones scanned the photos in the exact subfolder that Walker conducted his initial search. As in Rann, where the government more thoroughly searched the memory card that a mother and daughter had already searched, Jones search of the individual subfolder was merely a more thorough search where a closed container s privacy was already frustrated upon Walker viewing the child pornography image. Similar to the search in Runyan, where the government actor was within the scope when he viewed all images on a floppy disk despite the initial searcher having viewed only one, Walker s initial opening of defendant s USB drive and viewing of one image frustrated the defendant s expectation of privacy for the entire container, and therefore allowed Jones to conduct his search to any and all contents on the USB drive. However, Jones search did not even expand as far as that in Runyan. After Walker opened the USB drive, Jones was constitutionally permitted to search the entirety of the USB drive, yet he remained within the exact folder and subfolder where Walker conducted his initial search. Additionally, USB drives do not receive the same heightened protection as cellular devices. While courts have applied the closed container approach in addressing the scope of a search to include cellular devices, such cases are inapplicable here. In Riley, this Court held that cellular devices receive a special heightened treatment under the Fourth Amendment because they contain a vast amount of private information. Riley is inapplicable here for two reasons. First, Riley analyzed whether the search incident to arrest exception justified a warrantless cell phone search. On the contrary, the private search doctrine is not an exception to the Fourth 20

26 Amendment. 10 Second, while this Court s heightened privacy standards of cellular devices are clear, a USB drive cannot be considered analogous to that of a cellular device. Cellular devices and USB drives are not equivalent simply because they derive from the same sorts of technology. A USB drive does not act within the same function and purpose as a cellular device. Although a USB drive categorically relates to a cellular device, such that they both exist in the technology sector, its function more accurately relates to that of a file cabinet. Riley reasoned that a cell phone has unique capabilities, such that it can pinpoint a person s recent whereabouts and run application software that gives insight into the owner s life based on the content of the downloads. A USB drive holds no such capabilities. Additionally, in increasing the protection of cellular devices this Court strongly considered the ability of modern cell phones to store information on the cloud, meaning the information is not actually stored on the device itself. Matthew A. Lupo, Privacy in the Digital Age: Preserving the Fourth Amendment by Resolving the Circuit Split over the Private-Search Doctrine, 10 ALB. GOV T L. REV. 414 (2017). On the other hand, any information stored on a USB is strictly enclosed within that container. Additionally, in Johnson, the court held that cellular devices hold many containers, limiting the scope of the search to only the containers in the phone opened in the private search. A USB drive does not function in the same manner as a cellular device. While the function of a cellular device is to store, communicate, transmit, and analyze data loaded onto it, a USB drive merely functions as a storage device. Thus, a USB drive is not equivalent to a cellular device and does not receive the same heightened protection as cellular devices. 10 Unlike in the exception context, where the government bears the burden of showing the search was reasonable, the defendant here bears the burden in demonstrating that the government actually performed a government search. Rawlings v. Kentucky, 448 U.S. 98, 104 (1980). 21

27 2. Under the virtual certainty approach, Private Jones did not exceed the scope of the initial private search. Under the virtual certainty standard, Private Jones stayed within the scope of Walker s initial search when he viewed more images of child pornography in Subfolder F. A subsequent government search does not exceed the scope of the initial private search when the governmental official is virtually certain that the additional material he views will only confirm the findings of the initial private search. Jacobsen, 466 U.S at 109. He does not exceed the scope because his virtual certainty ensures that nothing else in the container reveals information that was not already frustrated by the initial private search. Id. at 116. In Jacobsen, the Supreme Court explained that even though the white powder was not in plain view due to the many layers of packaging, the agent was virtually certain nothing else of significance could be learned from opening the tubes of white powder that was not previously discovered in the private search. Id. The virtual certainty standard established in Jacobsen, has subsequently been applied to digital media storage devices. Runyan, 275 F.3d at 449; Rann, 689 F.3d at 832. In Runyan, the Fifth Circuit found that when officers looked at more files of child pornography on a CD than the initial private searcher, they did not exceed the scope of the private search. The court, by analogizing the containers in Jacobsen to digital media storage devices, stated that police exceed the scope of a prior private search when they examine a closed container that was not opened by the private searchers unless the police are already substantially certain of what is inside that container based on the statements of the private searchers, their replication of the private search, and their expertise. Runyan, 275 F.3d at 463. (emphasis added). The court went on to state that a defendant s expectation of privacy in an unopened container would remain preserved unless the contents of that container had been made obvious by the private search which would render the defendant s expectation of privacy frustrated. Id. at 464. Later, in Rann, 22