IN THE Supreme Court of the United States

Transcription

1 IN THE Supreme Court of the United States ROBERT BLACK, Petitioner, v. UNITED STATES OF AMERICA, Respondents. On Writ of Certiorari to the United States Court of Appeals for the Thirteenth Circuit BRIEF FOR RESPONDENTS Team No. 33 Counsels for Respondents

2 IN THE Supreme Court of the United States ROBERT BLACK, Petitioner, v. UNITED STATES OF AMERICA, Respondents. On Writ of Certiorari to the United States Court of Appeals for the Thirteenth Circuit BRIEF FOR RESPONDENTS Team No. 33 Counsels for Respondents i

3 QUESTIONS PRESENTED I. Did the DEA violate Petitioner s Fourth Amendment rights by recovering shredded documents that Petitioner left in a third-party contractor s receptacle on a public street? II. Was Petitioner deprived of his Sixth Amendment right to effective assistance of counsel due to a conflict of interest because his trial counsel was subsequently indicted for criminal activity with an unindicted co-conspirator of Petitioner s? ii

4 TABLE OF CONTENTS Page QUESTIONS PRESENTED... ii TABLE OF CONTENTS... iii TABLE OF AUTHORITIES...v STATEMENT OF JURISDICTION... ix STATEMENT OF THE FACTS...1 SUMMARY OF THE ARGUMENT...3 ARGUMENT...5 I. NO FOURTH AMENDMENT SEARCH OCCURRED BECAUSE PETITIONER LACKED A REASONABLE EXPECTATION OF PRIVACY IN THE TRASH HE KNOWINGLY EXPOSED TO THE PUBLIC AND PAPER FORTRESS, AND BECAUSE PETITIONER LACKS STANDING TO ASSERT A FOURTH AMENDMENT VIOLATION...5 A. No constitutional search occurred because Petitioner lacked a subjective expectation of privacy in the trash he abandoned on the public street, and because society does not recognize an expectation of privacy in trash knowingly exposed to third parties or the public as reasonable Petitioner lacked a subjective expectation of privacy in the documents that he shredded and abandoned Because Petitioner knowingly exposed the documents, society does not recognize an expectation of privacy in those documents as reasonable...9 B. The DEA s trespass onto the private trash container was not a Fourth Amendment violation because the Fourth Amendment does not protect anything knowingly exposed to third parties or the public...12 C. Petitioner lacks standing to assert a Fourth Amendment violation because Petitioner does not own the container, and because Petitioner relinquished his property rights by abandoning the documents as trash...14 iii

5 II. PETITIONER HAD HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE FRAZIER S PERFORMANCE WAS OBJECTIVELY REASONABLE AND DID NOT PREJUDICE THE DEFENSE, AND BECAUSE FRAZIER WAS NOT SUBJECT TO A CONFLICT OF INTEREST THAT ADVERSELY AFFECTED HIS PERFORMANCE...15 A. Because Petitioner failed to show deficient performance, and because Petitioner failed to show prejudice, Petitioner fails to meet his burden of proof under the Strickland test Petitioner failed to meet his burden of showing deficient performance under the Strickland test Petitioner failed to meet his burden of showing prejudice under the Strickland test, and the per se prejudice approach conflicts with this Court s precedent...19 B. Because nothing in the record indicates that an actual conflict of interest existed, and because Petitioner failed to show any evidence that a conflict of interest affected Frazier s performance, Petitioner cannot prevail under the Cuyler test Petitioner failed to show any divergence of interests with Frazier to show an actual conflict of interest Petitioner failed to identify any adverse affect in Frazier s performance...24 CONCLUSION...25 iv

6 TABLE OF AUTHORITIES Page(s) UNITED STATES SUPREME COURT CASES Baglin v. Cusenier Co., 221 U.S. 580 (1911)...7 Berghuis v. Thompkins, 560 U.S. 370 (2010)...16 Burger v. Kemp, 483 U.S. 776 (1987)...17, 22, 23 Cal. v. Greenwood, 486 U.S. 35 (1988)...6, 9, 10, 12, 13 Cal. v. Ciraolo, 106 S. Ct (1986)...7 Cuyler v. Sullivan, 446 U.S. 335 (1980)... iv, 4, 15, 16, 21, 22, 24, 25 Donovan v. Dewey, 452 U.S. 594 (1981)...11 Dukes v. Warden, 406 U.S. 250 (1972)...24 Fla. v. Jardines, 133 S. Ct (2013)...6, 7, 8, 13 Fla. v. Riley, 488 U.S. 445 (1989)...8, 9 Holloway v. Ark., 435 U.S. 475 (1978)...23 Katz v. United States, 389 U.S. 347 (1967)...5, 6, 7, 9, 10, 13, 14 Knowles v. Mirzayance, 556 U.S. 111 (2009)...16 v

7 UNITED STATES SUPREME COURT CASES (CONTINUED) Mickens v. Taylor, 535 U.S. 162 (2002)...16, 19, 22 Oliver v. United States, 466 U.S. 170 (1984)...5 Rakas v. Illinois, 99 S. Ct. 421 (1978)...6, 14 Schriro v. Landrigan, 550 U.S. 465 (2007)...16 Smith v. Md., 442 U.S. 735 (1979)...11 Smith v. Robbins, 528 U.S. 259 (2000)...19, 21 Strickland v. Washington, 466 U.S. 668 (1984)... iv, 15, 16, 17, 18, 19, 20, 21, 22 United States v. Chadwick, 433 U.S. 1 (1977)...13 United States v. Cronic, 466 U.S. 648 (1984)...15 United States v. Dunn, 107 S. Ct (1987)...7, 13 United States v. Jacobsen, 466 U.S. 109 (1984)...5 United States v. Jones, 132 S. Ct. 945 (2012)...6, 12, 13 Wright v. Van Patten, 552 U.S. 120 (2008)...16 UNITED STATES COURT OF APPEALS CASES Fowler v. Parratt, 682 F.2d 746 (8th Cir. 1982)...18 vi

8 UNITED STATES COURT OF APPEALS CASES (CONTINUED) Mannhalt v. Reed, 847 F.2d 575 (9th Cir. 1988)...21 Mora v. Williams, 111 Fed.Appx. 537 (10th Cir. 2004)...21 Pegg v. United States, 253 F.3d 1274 (11th Cir. 2001)...23 Schwab v. Crosby, 451 F.3d 1308, 1327 (11th Cir. 2006)...16 Smith v. Hofbauer, 312 F.3d 809 (6th Cir. 2002)...16 Summerlin v. Stewart, 267 F.3d 926 (9th Cir. 2001)...16 Tueros v. Greiner, 343 F.3d 587 (2d Cir. 2003)...16 Wemark v. Iowa, 322 F.3d 1018 (8th Cir. 2003)...21 United States v. Cancilla, 725 F.2d 867 (2d Cir.1984)...21 United States v. Crowell, 586 F.2d 1020 (4th Cir. 1978)...7 United States v. Fahey, 769 F.2d 829 (1st Cir. 1985)...24 United States v. Fulton, 5 F.3d 605 (2d Cir. 1993)...21 United States v. Hall, 47 F.3d 1091 (11th Cir. 1995)...6, 11 United States v. Infante, 404 F.3d 376 (5th Cir. 2005)...16 United States v. Kramer, 711 F.2d 789 (7th Cir. 1983)...11 vii

9 UNITED STATES COURT OF APPEALS CASES (CONTINUED) United States v. Michaud, 925 F.2d 37 (1st Cir. 1991)...16 United States v. Peterson, 777 F.2d 482 (9th Cir. 1985)...18 United States v. Scott, 975 F.2d 927 (1st Cir. 1992)...6, 7, 8 United States v. Stitt, 441 F.3d 297 (4th Cir. 2006)...10 United States v. Wallace, 276 F.3d 360 (7th Cir. 2002)...21 UNITED STATES DISTRICT COURT CASES Certain Real Prop. Located at 987 Fisher Rd., 719 F. Supp (E.D. Mich. 1989)...10, 11 STATUTES 18 U.S.C (2012)... ix 28 U.S.C. 1254(1) (2012)... ix RULES FED R. CRIM. P. 33(b)(2)... ix CONSTITUTIONAL PROVISIONS U.S. CONST. amend. IV.... passim U.S. CONST. amend. VI.... passim OTHER AUTHORITIES MODEL CODE OF PROF L RESPONSIBILITY EC 5-2 (1987)...22 MODEL RULES OF PROF L CONDUCT R. 1.7(b)(1) (Discussing Conflict of Interest: Current Clients 1983)...22 viii

10 STATEMENT OF JURISDICTION This is an appeal from the U.S. Court of Appeals for the Thirteenth Circuit, affirming Petitioner s conviction. The District Court of Jenson had jurisdiction pursuant to 18 U.S.C (2012). A motion for new trial pursuant to Rule 33(b)(2) of the Federal Rules of Criminal Procedure was timely filed and denied by the District Court. Petitioner timely filed a notice of appeal to the Thirteenth Circuit and the judgment was affirmed. A petition for writ of certiorari was timely filed and granted by this Court. The Jurisdiction of this Court rests pursuant to 28 U.S.C. 1254(1) (2012). ix

11 STATEMENT OF THE FACTS In the spring of 2011, Drug Enforcement Administration ( DEA ) agents began investigating a methamphetamine operation in Jenson. Record ( R. ) at 1. The DEA suspected Robert Black ( Petitioner ) of running a methamphetamine lab. Id. While conducting surveillance outside Petitioner s business, the DEA saw Petitioner place a container printed with the words Paper Fortress ( Fortress ) on the public street in front of his business. Id. Shortly thereafter, the DEA saw the Petitioner dispose of shredded paper into the container, then drive home. Id. at 2. Once Petitioner left, the DEA approached the container finding it unlocked, and then loaded the container s contents shortly before a Fortress truck arrived to collect them. Id. Subsequently, the DEA reconstructed the shredded documents and found that the documents were orders for equipment and chemicals that could be used to operate a methamphetamine lab. Id. at 2 3. Based on this information, the DEA obtained a search warrant and searched Petitioner s business finding a large methamphetamine operation with large quantities of important ingredients for cooking methamphetamines. Id. Thereafter, Petitioner was charged in the U.S. District Court for the District of Jenson for violating the Federal Controlled Substances Act along with associated conspiracies with indicted and unindicted co-conspirators. Id. Before trial, Petitioner s counsel Larry Frazier ( Frazier ) made several motions including a motion to suppress the evidence obtained from the Fortress container, arguing that the search violated Petitioner s Fourth Amendment right. Id. At the hearing for the motion to suppress, Frazier called a Fortress representative to testify that Petitioner had hired Fortress as a secure document disposal service in charge of 1

12 collecting Petitioner s documents from the container the DEA allegedly unconstitutionally searched. Id. Frazier strategically offered a copy of the contract between Petitioner and Fortress as evidence that Petitioner paid for secure pickup, shredding, and recycling of his documents. Id. at 4. The contract also indicated that Fortress provided the container for a refundable deposit. Id. The Fortress representative also indicated that she offered Petitioner other more secure services, such as in-office pick, a locked container, or a secure shredding and incineration service. Id. But Petitioner refused these services, and chose the unlocked container, street pickup and recycling option. Id. The District Court rejected Frazier s arguments, and denied the motion to suppress. Id. Petitioner was convicted thereafter. Id. Subsequently, Petitioner, with assistance of new counsel, timely moved for a new trial. Id. Petitioner s new counsel, in addition to re-litigating the suppression issue, argued at the motion for new trial that Petitioner had been deprived of his Sixth Amendment right to effective assistance of counsel because Frazier had been subject to a conflict of interest. Id. at 5 6. Petitioner s new counsel alleged that a conflict of interest existed because Frazier had been indicted two days after trial for charges stemming from Frazier s possible involvement with an unindicted co-conspirator of Petitioner s. Id. at 5. The District Court considered and denied this motion, holding that Petitioner and Frazier s interests were quite perfectly aligned. Id. at 5 6. While the District Court accepted Petitioner s proffer of the facts on the record, the Court still determined that no conflict existed. Id. The District Court noted that while Frazier seemed nervous at times, his conduct during the case was reasonable. Id. The District Court further found no facts to even suggest that Frazier knew about his impending indictment, which further degraded Petitioner s argument. Id. 2

13 Thereafter, Petitioner timely appealed to the U.S. Court of Appeals for the Thirteenth Circuit arguing that his Fourth and Sixth Amendment rights had been violated. Id. But the Thirteenth Circuit affirmed Petitioner s conviction holding that Petitioner abandoned the shredded documents, and were therefore not subject to a reasonable expectation of privacy by Petitioner. Id. The Thirteenth Circuit further held that the District Court was correct in determining that no conflict of interest existed because Petitioner had competent trial counsel. Id. As a final attempt for recourse, Petitioner timely petitioned this Court for a writ of certiorari, which the Court granted on both the Fourth and Sixth Amendment issues. Id. at 7. SUMMARY OF THE ARGUMENT The U.S. Court of Appeals for the Thirteenth Circuit correctly affirmed Petitioner s conviction because Petitioner was not deprived of his Fourth or Sixth Amendment rights. I. The Fourth Amendment of the United States Constitution protects people from warrantless searches and seizures. But for a Fourth Amendment violation to occur, the warrantless search or seizure must rise to the level of unconstitutional by violating a person s reasonable expectation of privacy. While a Governmental trespass carries a presumption of a Fourth Amendment search, anything a person knowingly exposes to a third party or the public is not afforded Fourth Amendment protection. By shredding and abandoning the documents in the Fortress container on a public street for Fortress to collect, Petitioner lacked a subjective expectation of privacy in the documents that he knowingly exposed to both the public and Fortress. Because Petitioner knowingly exposed the trash, society does not recognize an expectation of privacy in that trash as reasonable. 3

14 While the DEA did trespass onto the Fortress container, because the container was knowingly exposed to the public and Fortress, the trespass does not give rise to a Fourth Amendment violation. Also, Petitioner lacks standing to bring a Fourth Amendment claim on behalf of the container s owner, Fortress. Similarly, because Petitioner abandoned the documents, Petitioner relinquished his property rights in the documents, and therefore lacked standing to assert a claim in those documents Because Petitioner knowingly exposed the trash, and because Petitioner abandoned the documents, Petitioner lacked standing to assert a Fourth Amendment claim, and no constitutional search occurred under the Fourth Amendment. II. The Sixth Amendment guarantees effective assistance of counsel during all criminal proceedings. A Sixth Amendment claim requires a petitioner to show that counsel s deficient performance was prejudicial. While the law is unclear whether the Cuyler test applies to conflict of interest claims outside of multiple representation cases, if this Court takes the opportunity to clarify the law, and apply Cuyler to all conflict of interest cases, then Petitioner must show that Frazier was actively representing conflicting interests, which adversely affected his performance. To prevail in a Sixth Amendment claim, Petitioner bears the burden of showing deficient performance and prejudice. But Petitioner has made no such showings, and merely rests on the claim of a possible conflict of interest. While Petitioner hopes this Court will adopt a per se prejudice rule, this Court has always required a showing of adverse effect to presume prejudice. Regardless of whether this Court takes the opportunity to clarify if Cuyler applies to all conflict of interest claims, Petitioner still cannot meet his burden of showing that Frazier was actively representing conflicting interests. Frazier made several pretrial motions to further 4

15 Petitioner s best interests, and without a showing of serious errors or conduct outside professional norms, the lower courts holding is given substantial deference. Because Petitioner did not meet his burden of proof by failing to show any deficient performance or prejudice, and because the lower courts already inquired into whether an actual conflict existed and found no evidence of an actual conflict, no Sixth Amendment violation occurred and this Court should affirm the Petitioner s conviction. ARGUMENT I. NO FOURTH AMENDMENT SEARCH OCCURRED BECAUSE PETITIONER LACKED A REASONABLE EXPECTATION OF PRIVACY IN THE TRASH HE KNOWINGLY EXPOSED TO THE PUBLIC AND PAPER FORTRESS, AND BECAUSE PETITIONER LACKS STANDING TO ASSERT A FOURTH AMENDMENT VIOLATION. The United States Court of Appeals for the Thirteenth Circuit correctly affirmed the District Court s ruling that the recovery of the abandoned documents did not violate the Fourth Amendment. R. at 6. Because Petitioner lacked a reasonable expectation of privacy in the documents that he knowingly exposed to a third-party and the public, and because Petitioner abandoned the documents thereby relinquishing any Fourth Amendment standing to assert a claim in them, no Fourth Amendment violation occurred. The Fourth Amendment provides the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. U.S. Const. amend IV. Courts have consistently construed the Fourth Amendment s protection as proscribing governmental action. United States v. Jacobsen, 466 U.S. 109, 113 (1984). And have understood the term effects to be personal property. See Oliver v. United States, 466 U.S. 170, 177(1984). To determine if an unlawful search occurred, this Court recently emphasized that the Katz reasonable-expectation-of-privacy test is applied in addition to the common-law trespassory test. 5

16 Fla. v. Jardines, 133 S. Ct. 1409, 1414 (2013); see also United States v. Jones, 132 S. Ct. 945, 952 (2012). Under the Katz test, a person must satisfy two requirements: (1) the person must exhibit an actual (subjective) expectation of privacy; and (2) society must recognize that expectation of privacy as objectively reasonable. See Katz v. United States, 389 U.S. 347 (1967) (Harlan, J., concurring). If the Government physically intrudes on a constitutionally protected area, a Fourth Amendment violation occurred under the property-based approach. Jardines, 133 S. Ct. at But this Court clarified that anything a person knowingly exposes to a third-party, or the public, is not subject to Fourth Amendment protection. Katz, 389 U.S. at 582. Additionally, a person aggrieved by an illegal search or seizure by evidence obtained through an illegal search of a third party s premises or property has no standing to assert a Fourth Amendment violation because Fourth Amendment rights are personal rights, which cannot be vicariously asserted. Rakas v. Illinois, 99 S. Ct. 421, 424 (1978). A. No constitutional search occurred because Petitioner lacked a subjective expectation of privacy in the trash he abandoned on the public street, and because society does not recognize an expectation of privacy in trash knowingly exposed to third parties or the public as reasonable. When a person places trash on, or even near, a public curb for collection, the person relinquishes any expectation of privacy in that trash. Cal. v. Greenwood, 486 U.S. 35, (1988). To determine if a Fourth Amendment violation occurred in garbage-search cases, this Court applies the Katz test. Id. at 39. Before turning to whether a person s expectation of privacy in their trash was reasonable, courts must first determine if the items were in fact trash. United States v. Scott, 975 F.2d 927, 928 (1st Cir. 1992). Shredded documents that a person dispossesses by placing them in a public area accessible to unknown members of the public are public trash. Id.; see also United States v. Hall, 47 F.3d 1091, 1094 (11th Cir. 1995). 6

17 Because Petitioner abandoned the documents outside his curtilage, and because Petitioner knowingly exposed the container s contents to Fortress, Petitioner did not have a subjective expectation of privacy that society accepts as reasonable. 1. Petitioner lacked a subjective expectation of privacy in the documents that he shredded and abandoned. The Constitution affords Fourth Amendment protection to people who reasonably expect privacy in a certain place, and who demonstrate an intention to keep their items or activities private. Katz, 389 U.S. at Placing garbage outside a property s curtilage for collection is an act of abandonment because the person demonstrates both an act, and an intention to discard the garbage without ever reclaiming it. C.f. Baglin v. Cusenier Co., 221 U.S. 580, (1911); See also United States v. Dunn, 107 S. Ct (1987); Cal. v. Ciraolo, 106 S. Ct (1986) (reasoning curtilage is determined as to whether an area harbors the intimate activity associated with the sanctity of a man's home and the privacies of life. ). The Fourth Amendment does not protect what happens to garbage after it is abandoned. See United States v. Crowell, 586 F.2d 1020, 1025 (4th Cir. 1978). A subjective expectation of privacy cannot exist in areas not constitutionally recognized as private. Jardines, 133 S. Ct. at For example, in Florida v. Jardines this Court determined that an unlawful search occurred when the governmental physically trespassed onto a front porch to obtain information because a person undoubtedly has an expectation of privacy in his home, and likewise his home s curtilage. Id. A person who places trash on a public curb for collection or destruction by a third party, relinquishes any expectation of privacy in the trash abandoned. Scott, 975 F.2d at 929. The court in U.S. v. Scott determined that although the appellant shredded the documents before putting them into the trash, the appellant lacked a subjective expectation of privacy because he 7

18 abandoned the documents into the public domain. Id. The court focused on the location and accessibility of the trash, and determined that because the documents were in a public area accessible to unknown third parties, the documents were abandoned public trash. Id. Dissimilarly, the Court determined in Florida v. Riley that because the respondent took precautions to shield the contents of his greenhouse from public inspection, he had a subjective expectation of privacy. Fla. v. Riley, 488 U.S. 445, 449 (1989). The Court reasoned that because the greenhouse was within the respondent s fenced curtilage and shielded from the street, that the respondent had an actual subjective expectation of privacy. Id. Petitioner lacked a subjective expectation of privacy because he did not actually expect the documents to be private after he abandoned them on the public street. Similar to Jardines, where this Court emphasized the location of the trespass, the DEA did not trespass onto Petitioner s constitutionally protected property because the container was left on a public street outside Petitioner s curtilage. R. at 1. Unlike a front porch, a public street is not a place that a person could possibly expect any privacy. Although Petitioner may argue that the container itself was an area he sought to keep private, this argument fails because Petitioner left the container unlocked on a public street where any member of the public could access it. Id. at 2. Petitioner also shredded the documents before disposing of them in the container for Fortress to collect, which is evidence that Petitioner intended to abandoned the documents as trash. Id. Similar to Scott, where the court determined that the appellant abandoned his documents by shredding and placing them in a public area for collection, Petitioner did the exact same. Id. at 1 2. If Petitioner had any intention to reclaim the documents, he would not have shredded and discarded the documents on a public street where members of the public may access them. Id. In addition, Petitioner could not have possibly reclaimed the documents because 8

19 Petitioner left the premises after discarding the documents, and shortly thereafter, Fortress arrived to collect them for permanent recycling. Id. at 2. While Petitioner may have hoped for security by hiring Fortress and shredding the documents, the fact that he intended to permanently dispossess himself of the shreds is evidence of abandonment. Unlike the respondent in Riley, who took affirmative steps to continue using and keeping his greenhouse private, Petitioner took steps only to ensure that it would be difficult for the public to interpret the documents, not to retain possession. Because a public street is not a place where an expectation of privacy can exist, and because Petitioner relinquished his property rights in the documents by abandoning them outside his curtilage, Petitioner did not have a subjective expectation of privacy in those documents and no Fourth Amendment search occurred. 2. Because Petitioner knowingly exposed the documents, society does not recognize an expectation of privacy in those documents as reasonable. In the alternative, if this Court concludes that Petitioner had a subjective expectation of privacy, Petitioner still cannot prevail because society does not accept an expectation of privacy in trash placed on a public curb for collection as reasonable. Fourth Amendment protection is not afforded to things that a person knowingly exposes to the public, even in his own home or office. Katz, 389 U.S. at 351. A person does not have a legitimate expectation of privacy in information voluntarily turned over to third parties. Greenwood, 486 U.S. at 41. No reasonable expectation of privacy exists in trash placed on a public street. Id. For example, in California v. Greenwood this Court held that because the respondents knowingly exposed their garbage to the public by placing it on a public street, there was no Fourth Amendment violation. Id. This Court reasoned that garbage on a public street is in an area 9

20 particularly suited for public inspection for the express purpose of having strangers take it. Id. at (rejecting that the Fourth Amendment is implicated only upon physical trespass, reasoning the Fourth Amendment protects people, not places). The Court discounted the fact that the garbage was sealed in bags reasoning that the garbage was still in a publicly accessible area. Id. at 36. By contrast, garbage, which remains within the curtilage of a residence and out of sight from the public, heightens a person s expectation of privacy in that garbage. United States v. Certain Real Prop. Located at 987 Fisher Rd., 719 F. Supp. 1396, 1404 (E.D. Mich. 1989). In U.S. v. Certain Real Property the court held a Fourth Amendment violation occurred because police officers trespassed onto the curtilage of a private residence to seize garbage bags hidden from plain view. Id. at Because the trash was within the property s curtilage, and still under the claimant s control, the court determined that an unconstitutional search occurred. Id. Here, because Petitioner exposed his trash to the public by discarding it on a public street, society does not recognize an expectation of privacy in that trash as reasonable. R. at 1. This Court should look to their holding in Greenwood because Petitioner left the garbage on a public street for collection by a third party, like the respondents in Greenwood. Id. The fact that Petitioner s garbage was in a container is irrelevant because this Court, in Greenwood, dismissed the fact that the garbage was sealed in bags out of public view reasoning that any garbage on a public street is sufficiently exposed to public scrutiny. Dissimilar to Certain Real Property, where the court determined a reasonable expectation of privacy exists in garbage within a residence s curtilage, Petitioner left the container on the street, outside his office s curtilage. See Id. at 1. Unlike a building s curtilage, a public street does not contain any of the intimacies associated with the home, and is sufficiently exposed to 10

21 public scrutiny to eliminate a reasonable expectation of privacy. Further, this case is also distinguishable from Certain Real Property because Petitioner left the container outside his commercial curtilage, which is subject to a lesser expectation of privacy than a residence. Donovan v. Dewey, 452 U.S. 594, (1981); see also Hall, 47 F.3d at 1096 (holding a commercial property owner must affirmatively bar public access from trash to retain a reasonable expectation of privacy). While Fortress offered more private packages including, locked containers, or in-office pickup, Petitioner voluntarily chose the least private package, which further degrades from a reasonable expectation of privacy. Id. If Petitioner truly wished for privacy, he could have selected a different option. But regardless whether Petitioner had chosen a different package, Petitioner still knowingly exposed his documents to a third party, Fortress, who could have viewed the documents like any member of the public. See Id. at 4. Also, Petitioner s shredding of the documents before he disposed of them is evidence of his recognition of the risk that the police, public, or even Fortress, may view them. Id. at 2. If Petitioner actually believed the garbage would be private, then he would not have shredded them. Courts have long held that if people wish to keep items private, they should keep the items in their homes, or incinerate them. See generally Smith v. Md., 442 U.S. 735 (1979); United States v. Kramer, 711 F.2d 789, 792 (7th Cir. 1983). Although Petitioner may have hoped to keep the documents information private by shredding them, a failed attempt at secrecy does not give rise to a higher constitutional standard. Forcing police to use inferior techniques, while wrongdoers employ techniques that are more sophisticated would seriously hinder police effectiveness, and risk the public s safety by allowing crime to go undiscovered. While Petitioner s shredding of his documents was a 11

22 calculated attempt at dissuading anyone who may come across the trash from deciphering them, the fact that the DEA took the time to reconstitute the documents does not change the fact that any member of the public could have done the same. R. at 2. But if the Court were to determine that Petitioner did not knowingly expose the documents to the public, then this Court would have to overrule Greenwood s longstanding precedent, which determined that garbage bags left out on a public curb are outside Fourth Amendment protection. While it is difficult not to acknowledge the steps Petitioner took to keep his trash private such as, shredding, hiring a secure contractor, and placing the trash on the street shortly before collection. Id. at 1 4. It is equally difficult to ignore the precedents set by this Court establishing that trash left on public streets is not subject to Fourth Amendment protection. Because Petitioner abandoned the documents, and thereby relinquishing any subjective expectation of privacy in them, and because society does not recognize an expectation of privacy in trash knowingly exposed to the public or third parties as reasonable, the DEA did not conduct an unconstitutional search. B. The DEA s trespass onto the private trash container was not a Fourth Amendment violation because the Fourth Amendment does not protect anything knowingly exposed to third parties or the public. When the Government trespasses onto personal property to collect information, such a physical intrusion is an unconstitutional search unless the owner knowingly exposes the items or activities to the public. Jones, 132 S. Ct. at 951. This Court determined that Fourth Amendment protection must provide a minimum degree of privacy that existed when the Fourth Amendment was adopted. Jones, 132 S. Ct. at 950. There is no doubt that a physical trespass would constitute a search when the Fourth Amendment was adopted. Id. But property rights are not the sole 12

23 measure of Fourth Amendment violations and the Katz test adds to the property-rights baseline. Jardines, 133 S. Ct. at A Government trespass onto personal property to obtain information is a search under the Fourth Amendment. Jones, 132 S. Ct. at 950. For example, in United States v. Jones the Court determined that the Government s physical intrusion onto an automobile violated the Fourth Amendment because a trespass occurred onto a constitutional effect that the Court recognizes as private. Id.; see also United States v. Chadwick, 433 U.S. 1, 12 (1977). Here, the DEA did not violate the Fourth Amendment because a garbage container is not a protected constitutional effect under this Courts holding in Greenwood. Unlike Jones, where this Court found a search because the Government trespassed onto a vehicle, a garbage container is not a protected effect because, unlike a vehicle, it does not contain any intimacies the Fourth Amendment seeks to protect. See generally Dunn, 488 U.S Because the Fourth Amendment analysis does not turn on property rights alone, and because this case deals with trash, this Court s holding in Greenwood still applies. The DEA saw Petitioner discard the shredded documents into the Fortress container, which made it obvious that the container was being used as a trash receptacle. R. at 2. While Jones makes clear that a trespass to obtain information is a search, this case is distinguishable because unlike a vehicle, a trash container holds discarded refuse, which a person intends to abandon. While Petitioner may argue that a private container should be considered a protected effect equivalent to any bag or package, this argument fails because this Court determined in Greenwood that trash, regardless whether it is shielded from plain view inside a bag, falls outside Fourth Amendment protection when it is exposed on a public street. Supra Part I.A.2. 13

24 Because the trespassory test is not the sole measure to determine Fourth Amendment violations, the Katz test is still applicable. Therefore, regardless of whether a trespass occurred, because Petitioner knowingly exposed the garbage to Fortress and the public, no Fourth Amendment violation occurred. C. Petitioner lacks standing to assert a Fourth Amendment violation because Petitioner does not own the container, and because Petitioner relinquished his property rights by abandoning the documents as trash. An aggrieved person by an illegal search under the Fourth Amendment does not have standing to bring a claim if the damaging evidence secured was a third party s premises or property. Rakas, 99 S. Ct. at 425. The owner of private property is the only party permitted to make a Fourth Amendment claim because Fourth Amendment rights are personal rights, and may not be vicariously asserted. Id. at 425. The Fourth Amendment only protects places that petitioners actually have an expectation of privacy in personally. See Id. In Rakas v. Illinois, this Court determined that because the petitioners were mere passengers in the vehicle searched, and neither owned the vehicle nor the items seized, the petitioners lacked standing to bring a Fourth Amendment claim. Id. at Because Fortress owns the container searched, Petitioner cannot have an expectation of privacy in that container. On petition for writ to this Court, Petitioner and the Court acknowledged that the container was a third-party contractor s receptacle. R. at 7. Similar to Rakas, where petitioners lacked standing because they were passengers in the vehicle, because Fortress owns the container, Petitioner lacks standing to assert a Fourth Amendment claim for the DEA s search of the container. Id. at 4. Further, because Petitioner abandoned the documents, he lacked any ownership or possessory interest in those documents at the time of the search. Because Petitioner relinquished 14

25 his property interest, he lacks standing to assert a Fourth Amendment claim in those documents. Supra Part I.A.1. But if the Court finds that Petitioner had a possessory interest in the container because he leased the container from Fortress, or that Petitioner did not abandon the documents, then Petitioner still cannot prevail in either situation because he still knowingly exposed the documents to the public and Fortress. R. at 4. Because Petitioner lacked a reasonable expectation of privacy in the documents that he abandoned and knowingly exposed to the public and Fortress, and because Petitioner lacks standing to assert a Fourth Amendment violation, the DEA s recovery and reconstruction of the shredded documents was not in violation of the Fourth Amendment. II. PETITIONER HAD HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE FRAZIER S PERFORMANCE WAS OBJECTIVELY REASONABLE AND DID NOT PREJUDICE THE DEFENSE, AND BECAUSE FRAZIER WAS NOT SUBJECT TO A CONFLICT OF INTEREST THAT ADVERSELY AFFECTED HIS PERFORMANCE. The Thirteenth Circuit correctly affirmed the District Court s judgment that Petitioner had effective assistance of counsel because no conflict of interest existed. The Sixth Amendment provides the right to have the Assistance of Counsel for his defense. U.S. CONST. amend. VI. Courts have unanimously recognized the right to counsel is the right to the effective assistance of counsel to ensure a fair trial. Strickland v. Washington, 466 U.S. 668, 686 (1984); see also United States v. Cronic, 466 U.S. 648, 658 (1984). To prevail in a Sixth Amendment claim based on ineffective assistance of counsel, a petitioner must show: (1) counsel s performance was deficient; and (2) that the deficient performance prejudiced the petitioner. Strickland, 466 U.S. at 687. But this Court also established in Cuyler v. Sullivan that in a conflict of interest claim, the petitioner bears the 15

26 burden of showing: (1) counsel was actively representing conflicting interests; and (2) the conflict had some adverse effect on specific instances of counsel s performance. Cuyler v. Sullivan, 446 U.S. 335, (1980). While Cuyler s test specifically applies to conflicting interest cases, this Court has never determined whether the Cuyler test applies to cases outside of multiple or concurrent representation. See Mickens v. Taylor, 535 U.S. 162 (2002) (stating in dictum whether Cuyler applies beyond multiple representation cases is an open question ). Because the issue before the Court pertains to a conflict of interest claim outside multiple representation, this Court has an opportunity to clarify whether the Cuyler test applies in other situations. While the Strickland test is capable of determining if a Sixth Amendment violation occurred because of a conflict of interest, the Cuyler test should apply to all conflict of interest cases because it specifically addresses conflicts of interest. Conversely, the Strickland test would continue applying to other ineffective assistance claims because it provides a more encompassing test to cover various situations. See, e.g., Knowles v. Mirzayance, 556 U.S. 111, 123 (2009); Wright v. Van Patten, 552 U.S. 120 (2008); Schriro v. Landrigan, 550 U.S. 465 (2007). If this Court chooses to apply the Cuyler test exclusively to conflicting interest claims regardless of the type, this Court would further its prior holdings, and provide predictability among the disputing circuit courts. 1 But if the Court determines that Cuyler is inapplicable here, then the Strickland test should only be applied. Whether an ineffective assistance of counsel claim based on a conflict of interest requires vacation of a conviction is a mixed question of law and fact subject to de novo review. Berghuis 1 See, e.g., United States v. Michaud, 925 F.2d 37 (1st Cir. 1991); Tueros v. Greiner, 343 F.3d 587 (2d Cir. 2003); United States v. Stitt, 441 F.3d 297 (4th Cir. 2006); United States v. Infante, 404 F.3d 376 (5th Cir. 2005); Smith v. Hofbauer, 312 F.3d 809 (6th Cir. 2002); Summerlin v. Stewart, 267 F.3d 926 (9th Cir. 2001); Schwab v. Crosby, 451 F.3d 1308, 1327 (11th Cir. 2006) (expressly refusing to apply Cuyler to single representation case). 16

27 v. Thompkins, 560 U.S. 370, 372 (2010). But a district court s determination of facts regarding a potential conflict of interest is a factual finding reviewable only for clear error. See Burger v. Kemp, 483 U.S. 776, 785 (1987). A. Because Petitioner failed to show deficient performance, and because Petitioner failed to show prejudice, Petitioner fails to meet his burden of proof under the Strickland test. To determine if a petitioner had effective assistance of counsel, Court s focus on whether counsel s conduct and performance so undermined the adversarial process, as to render the trial s result unreliable. Strickland, 466 U.S Under Strickland s two-prong test, if counsel made errors so serious as to deprive a petitioner of counsel guaranteed by the Sixth Amendment, and if but for counsel s unprofessional conduct, the result of the trial would have been different, then a petitioner was deprived of his Sixth Amendment right. Id. at 694. Both prongs of the Strickland test must be satisfied to overturn a conviction. Id. at Petitioner failed to meet his burden of showing deficient performance under the Strickland test. To prevail in a petition for reversal of a conviction based upon ineffective assistance of counsel, a petitioner bears the burden of showing that counsel s performance fell below the objective standard of reasonableness under prevailing professional norms. Id. at A petitioner must overcome a strong presumption that counsel s conduct fell within the wide range of professional reasonableness because courts presume counsel s actions to be sound strategy. Id. For example, in Strickland v. Washington this Court determined that because counsel s strategy and choices were well within the range of professionally reasonable judgments, that counsel s judgment was undistorted under the totality of circumstances. Id. This Court reasoned that the benchmark of reasonableness is not whether errors occurred, but whether the conduct undermined the proper functioning of the adversarial process that the trial cannot be relied on as 17

28 having produced a just result. Id.; see also United States v. Peterson, 777 F.2d 482, 484 (9th Cir. 1985) (determining counsel sleeping through small portions of trial was not ineffective assistance); see also Fowler v. Parratt, 682 F.2d 746, 750 (8th Cir. 1982) (finding effective assistance when counsel was alcoholic and suffered blackouts during his representation of the defendant). The Court articulated that every effort should be made to eliminate using hindsight in order to make a fair assessment of attorney performance, even when unsuccessful. Id. Here, Frazier s representation was well within the range of professionally reasonable standards because the lower courts and the Petitioner found no errors in representation that can be considered below the objective standard. R. at 6. Similar to Strickland, where this Court determined that trial counsel s performance was reasonable because counsel made strategic choices to further his client s interest, Frazier made several pretrial motions including a motion to suppress evidence obtained in the trash search. Id. at 4 5. This motion, if granted, would have suppressed highly incriminating evidence. See Id. at 3. Frazier also called a Fortress representative to testify on Petitioner s behalf to try and establish a reasonable expectation of privacy in the documents recovered. Id. at 3 4. Like this Court determined in Strickland, second-guessing an attorney s strategy after a conviction is an unfair assessment of attorney performance. The Constitution does not guarantee Petitioner successful or perfect representation at trial. Rather, Courts judge performance by the reasonableness of an attorney s conduct based on the facts available to counsel at the time of counsel s alleged unreasonable conduct. Based on the circumstances available to Frazier at the time, attempting to suppress the evidence that gave the DEA probable cause for a search warrant is a reasonable, if not the best, strategy. 18

29 Further, Petitioner bears the burden of showing that Frazier made errors so serious that Petitioner was not afforded effective representation. Petitioner has made no such showing because he has never offered an alternative strategy, pointed to any acts or omissions of Frazier s, or even suggested that Frazier acted unreasonably. Id. at 5 6. Because Petitioner has not met his burden of showing errors to suggest that Frazier s performance was deficient, Petitioner cannot satisfy the Strickland performance prong. 2. Petitioner failed to meet his burden of showing prejudice under the Strickland test, and the per se prejudice approach conflicts with this Court s precedent. In the alternative, if this Court finds Frazier s conduct unreasonable, Petitioner still cannot prevail because he cannot show prejudice. To prove ineffective assistance, a petitioner bears the burden of showing a reasonable probability that but for counsel s unprofessional errors, the result of the proceeding would have been different. Mickens, 535 U.S. at 166 (citing Strickland, 466 U.S. at 694). It is insufficient to show that an error only possibly or minimally affected a trial s outcome. Strickland, 466 U.S. at 693. For example, this Court determined in Strickland v. Washington that no prejudice existed because no reasonable probability existed that the lower courts, after reweighing the evidence absent the errors, would have ruled any differently. Id. This Court reasoned that although the respondent made a showing of evidence that should have been offered by his counsel, that evidence would have barely altered the sentencing and did not prejudice the defense. Id. at Additionally, in Smith v. Robbins this Court reasoned, prejudice is presumed when counsel is burdened by an actual conflict of interest, although in such a case we do require the defendant to show that the conflict adversely affected his counsel s performance. Smith v. Robbins, 528 U.S. 259, 287 (2000). 19

30 Here, Petitioner never alleged that Frazier made errors, or that any specific errors prejudiced his defense. R. at 5 6. Unlike the respondent in Strickland, who offered omissions trial counsel made, Petitioner merely alleged that a conflict of interest stemming from related unlawful activity existed, without pointing to any errors. Id. Absent a showing that Frazier s actual conduct during the trial proceedings prejudiced the defense in some way, Petitioner fails to meet the substantial hurdle of showing prejudice. If Petitioner had offered evidence of unprofessional errors, it is still unlikely that the lower courts would have found any differently. Like the respondent in Strickland, the weight of the evidence against the Petitioner was substantial. Id. at 3. The DEA found a large methamphetamine operation including large quantities of ingredients, and various pieces of laboratory equipment used for cooking methamphetamines at one of Petitioner s businesses. Id. at 2 3. It is unlikely that anything short of suppressing the evidence used to obtain the warrant, which Frazier attempted to do, would have altered the conviction. Id. at 3 4. While Petitioner contends that this Court should reverse his conviction because the conflict of interest stems from Frazier s personal interest in the underlying crime. R. at 5 6. This Court reasoned in Strickland, that types of conflicts cannot be classified based on their likelihood of prejudice, which Petitioner is asking the Court to do now. But Petitioner s contention is misplaced because this Court, in Strickland, determined that an allegation of a conflict does not justify relieving a defendant s burden of showing an adverse effect. Further, even if Frazier s involvement was more likely to prejudice Petitioner, it would only make it easier for Petitioner to show prejudice, thus holding Petitioner to no greater burden. 20

31 Petitioner will likely argue that because of the conflicts nature, this Court should adopt the per se prejudice approach used by the Second and Ninth Circuits. 2 But this Court held in Cuyler, Strickland, and Smith that a defendant must show both an actual conflict and adverse effect for the Court to presume prejudice. Therefore, Petitioner s reliance on the per se presumption is inconsistent with clearly established Supreme Court precedent. 3 Because Petitioner failed to demonstrate any unprofessional errors to show that Frazier s performance fell below the objectively reasonable standard, and because Petitioner failed to show a reasonable probability that, but for those errors, the result of the trial would likely have been different, Petitioner has not met his burden to satisfy either prong of Strickland. While Petitioner would like this Court to apply the per se prejudice approach, this Court has consistently required a defendant to show an adverse affect to presume prejudice. Therefore, Petitioner received effective assistance of counsel. B. Because nothing in the record indicates that an actual conflict of interest existed, and because Petitioner failed to show any evidence that a conflict of interest affected Frazier s performance, Petitioner cannot prevail under the Cuyler test. Although this Court has never determined whether Cuyler applies to any conflict of interest case outside of concurrent or multiple representation situations, this Court has an opportunity to clarify the extent of Cuyler s application. Supra Part II. If this Court determines this instance warrants application of the Cuyler test, then Petitioner still cannot prevail because no actual conflict of interest adversely affected Frazier s performance. 2 See United States v. Fulton, 5 F.3d 605, 611 (2d Cir. 1993); see also United States v. Cancilla, 725 F.2d 867, (2d Cir.1984) (holding a conflict of interest existed where counsel engaged in the same crimes as defendant); Mannhalt v. Reed, 847 F.2d 575, 581 (9th Cir. 1988). 3 Compare, e.g., United States v. Wallace, 276 F.3d 360, 368 (7th Cir. 2002) (expressly rejecting Second Circuit s per se approach); Mora v. Williams, 111 Fed.Appx. 537 (10th Cir. 2004) (holding defendant must show counsel feared prosecution and present evidence counsel pulled his punches ); Wemark v. Iowa, 322 F.3d 1018, 1021 (8th Cir. 2003); with Fulton, 5 F.3d at

32 To prevail in a Sixth Amendment violation based on an attorney s alleged conflict of interest, a petitioner who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer s performance. Cuyler, 446 U.S An actual conflict exists when an attorney and client have inconsistent interests. Fruend v. Butterworth, 165 F.3d 839, 859 (11th Cir. 1999). The mere possibility or speculation of a conflict is insufficient to impugn a criminal conviction. Cuyler, 446 U.S Conflicts of interest are not claims of per se prejudice, which is presumed only if both Cuyler prongs are satisfied. Mickens, 535 U.S. at 173. Because the lower courts found no actual conflict of interest existed, and because Petitioner merely alleged a conflict of interest without meeting his burden of showing that Frazier s interests diverged from his own, or that Frazier s performance was adversely affected by the alleged conflict, there was no Sixth Amendment violation. 1. Petitioner failed to show any divergence of interests with Frazier to show an actual conflict of interest. An actual conflict of interest occurs when a counsel and client s interests diverge. Cuyler, 446 U.S. at 358 (discussing ABA standards and Code of Professional Responsibility). 4 This Court reviews the circumstances involving a conflict of interest based on whether counsel breaches the duty of loyalty owed to his client. Strickland, 466 U.S. at 688. To determine if an actual conflict exists, courts look to the attorney s motivation, and review a lower court s factual findings regarding a conflict of interest only for clear error. See Burger, 483 U.S. at This Court recognizes that lower courts are in a better position to determine if an actual conflict of interest exists. Burger, 483 U.S. at 785. For example, in Burger v. Kemp this Court 4 The duty of loyalty requires that a lawyer deny representation if his personal interests will, or there is a reasonable possibility that they will, adversely affect the advice he gives. MODEL CODE OF PROF L RESPONSIBILITY EC 5-2 (1987). A lawyer may represent a client if he reasonably believes he will be able to provide competent representation. MODEL RULES OF PROF L CONDUCT R. 1.7(b)(1) (Discussing Conflict of Interest: Current Clients 1983). 22