No Tomas Haverford, Petitioner, State of Eagleton, Respondent. On Writ of Certiorari to the Supreme Court of Eagleton

Transcription

1 No IN THE SUPREME COURT OF THE UNITED STATES October Term 2015 Tomas Haverford, Petitioner, v. State of Eagleton, Respondent. On Writ of Certiorari to the Supreme Court of Eagleton BRIEF FOR THE RESPONDENT Team 4 ATTORNEYS FOR RESPONDENT

2 QUESTIONS PRESENTED 1. Did Deputy Sanderson violate Haverford s Fourth Amendment right against unreasonable searches and seizures by extending a lawful traffic stop to perform field sobriety tests and searching Haverford s vehicle after receiving consent? 2. Did Attorney Brendanawicz s legal advice about the adverse immigration consequences of the drug conviction constitute effective assistance of counsel under Haverford s Sixth Amendment right? i

3 TABLE OF CONTENTS QUESTIONS PRESENTED... i! TABLE OF AUTHORITIES... iv! CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED... x! STATEMENT OF THE CASE... 1! SUMMARY OF THE ARGUMENT... 4! ARGUMENT... 6! I. HAVERFORD S MOTION TO SUPPRESS SHOULD BE DENIED BECAUSE THE DEPUTY HAD SUFFICIENT REASONABLE SUSPICION TO EXTEND THE LAWFUL TRAFFIC STOP, HAVERFORD WAS NOT CONSTRUCTIVELY SEIZED WHEN CONSENT WAS REQUESTED, AND NO PRIOR ILLEGALITY OF THE EXTENDED TRAFFIC STOP TAINTED THE CONSENT.... 6! A.! Relying on his Professional Experience, Deputy Sanderson Properly Extended the Lawful Traffic Stop to Quickly and Diligently Conduct Field Sobriety Tests that were Within the Scope of his Suspicions Because Haverford was Excessively Nervous and had Restricted Pupils.... 7! 1.! Deputy Sanderson s Decision to Conduct Field Sobriety Tests was Justified Because the Deputy can Rely on his Experience to Evaluate Haverford s Physical Responses and Nervousness is a Pertinent Factor to Determine Reasonable Suspicion.... 9! 2.! The Field Sobriety Tests were Reasonably Related in Scope to the Circumstances Justifying the Deputy s Reasonable Suspicion, and were Completed Diligently and Quickly in Order to Dispel Suspicions ! B.! Haverford s Consent to a Vehicle Search was Proper Because the Deputy did not Constructively Seize Haverford when he Re-Approached the Vehicle and Haverford s Consent was not Tainted by any Prior Fourth Amendment Violation ! 1.! Haverford was not Seized Because a Reasonable Person Under Similar Circumstances Would have Felt Free to Leave When Deputy Sanderson was Alone, Respectful in Tone and Demeanor, had Returned Haverford s Documents, and Stated Explicitly that Haverford was Free to Go ! 2.! Although the Traffic Stop was Lawfully Extended and Haverford was not Seized, Haverford s Consent was Sufficient to Purge any Potential Taint Because There were Intervening Circumstances that Created a Consensual Encounter, Eliminating any Fourth Amendment Concerns ! C.! Summary... 18! ii

4 II. HAVERFORD S GUILTY PLEA SHOULD NOT BE WITHDRAWN BECAUSE ATTORNEY BRENDANAWICZ DID NOT PERFORM DEFICIENTLY AND HAVERFORD WAS NOT PREJUDICED ! A.! Attorney Brendanawicz s Performance was not Deficient Because the Immigration Consequences were not Truly Clear and Attorney Brendanawicz Provided Correct Advice About the Risk of Deportation ! 1.! The Deportation Consequences of Haverford s Conviction are not Truly Clear Because There is Prosecutorial Discretion in the Enforcement of the Law, no Definition for Deportable Exists in the Relevant Law, and the Padilla Court Only Muddles the Understanding of Deportable ! 2.! Attorney Brendanawicz s Advice of the Deportation Risks Following Haverford s Guilty Plea was Correct Advice under Padilla ! B.! Haverford was not Prejudiced Because the Evidence was Overwhelming, the Court Warned Haverford of the Immigration Consequences, and Self-Serving Testimony that he Would not Have Pled Guilty is Insufficient ! 1.! Even if Informed of the Adverse Immigration Consequences, Haverford Would have Pled Guilty Because a Trial Would not have Changed the Outcome and it is Highly Likely he Would have Received a Higher Sentence ! 2.! The Trial Judge s Warnings Cured any Alleged Failure of Attorney Brendanawicz to Admonish Haverford of the Deportation Consequences ! C.! Summary... 28! CONCLUSION... 29! iii

5 TABLE OF AUTHORITIES Page(s) UNITED STATES SUPREME COURT CASES: Arizona v. Johnson, 555 U.S. 323 (2009) Beck v. Ohio, 379 U.S. 89 (1964)... 8 Berkemer v. McCarty, 468 U.S. 420 (1984)... 8 Blackledge v. Allison, 431 U.S. 63 (1977) Boykin v. Alabama, 395 U.S. 238 (1969) Brendlin v. California, 551 U.S. 249 (2007)... 7 Brown v. Illinois, 422 U.S. 590 (1975)... 7, 16, 18 Bumper v. North Carolina, 391 U.S. 543 (1968) California v. Hodari D., 499 U.S. 621 (1991) Carroll v. United States, 267 U.S. 132 (1925)... 8 Coolidge v. New Hampshire, 403 U.S. 443 (1971)... 7 Delaware v. Prouse, 440 U.S. 648 (1979)... 8, 10 Dunaway v. New York, 442 U.S. 200 (1979) Elkins v. United States, 364 U.S. 206 (1960)... 7 FDIC v. Meyer, 510 U.S. 471 (1994) Florida v. Bostick, 501 U.S. 429 (1991)... 7, 13, 17 Go-Bart Importing Co. v. United States, 282 U.S. 344 (1931)... 7 Heien v. North Carolina, 135 S. Ct. 530 (2014)... 7 Hill v. Lockhart, 474 U.S. 52 (1985)... 25, 26 I.N.S. v. St. Cyr, 533 U.S. 289 (2001) iv

6 Illinois v. Caballes, 543 U.S. 405 (2005)... 8, 10 Illinois v. Wardlow, 528 U.S. 119 (2000)... 9, 10 Katz v. United States, 389 U.S. 347 (1967) Ker v. California, 374 U.S. 23 (1963)... 7 Lafler v. Cooper, 132 S. Ct (2012) Mapp v. Ohio, 367 U.S. 643 (1961)... 7 McMann v. Richardson, 397 U.S. 759 (1970) Navarette v. California, 134 S. Ct (2014)... 9 Ohio v. Robinette, 519 U.S. 33 (1996)... 13, 15, 18 Ornelas v. United States, 517 U.S. 690 (1996)... 9 Padilla v. Kentucky, 559 U.S. 356 (2010)... passim Roaden v. Kentucky, 413 U.S. 496 (1973)... 7 Rodriguez v. United States, 135 S. Ct (2015)... 8, 10 Schneckloth v. Bustamonte, 412 U.S. 218 (1973) Smith v. United States, 508 U.S. 223 (1993) Strickland v. Washington, 466 U.S. 668 (1984)... passim Taylor v. Alabama, 457 U.S. 687 (1982) Terry v. Ohio, 392 U.S. 1 (1968)... 8, 9, 11, 13 United States v. Arvizu, 534 U.S. 266 (2002)... 9 United States v. Brignoni-Ponce, 422 U.S. 873 (1975) United States v. Ceccolini, 435 U.S. 268 (1978) United States v. Cortez, 449 U.S. 411 (1981)... 9 United States v. Mendenhall, 446 U.S. 544 (1980)... 13, 14, 15 v

7 United States v. Sharpe, 470 U.S. 675 (1985)... 8, 9, 11 United States v. Sokolow, 490 U.S. 1 (1989)... 9 Vale v. Louisiana, 399 U.S. 30 (1970) Whren v. United States, 517 U.S. 806 (1996)... 7 Wong Sun v. United States, 371 U.S. 471, 486 (1963) UNITED STATES CIRCUIT COURT CASES: Pham v. United States, 317 F.3d 178 (2d Cir. 2003) United States v. Barahona, 990 F.2d 412 (8th Cir. 1993)... 8, 12, 13, 18 United States v. Brigham, 382 F.3d 500 (5th Cir. 2004) United States v. Buettner-Janusch, 646 F.2d 759 (2d Cir. 1981) United States v. Chaidez, 906 F.2d 377 (8th Cir. 1990) United States v. Childs, 277 F.3d 947 (7th Cir. 2002) United States v. Foreste, 780 F.3d 518 (2d Cir. 2014)... 9 United States v. Givan, 320 F.3d 452 (3d Cir. 2002)... 14, 17 United States v. Gordon 156 F.3d 376 (2d Cir. 1998) United States v. Holt, 264 F.3d 1215 (10th Cir. 2001) United States v. Kayode, 777 F.3d 719 (5th Cir. 2014)... 25, 26, 27, 28 United States v. Ramos, 42 F.3d 1160 (8th Cir. 1994)... 11, 16 United States v. Recalde, 761 F.2d 1448 (10th Cir. 1985)... 14, 16 United States v. Reed, 349 F.3d 457 (7th Cir. 2003) United States v. Terzado-Madruga, 897 F.2d 1099 (11th Cir. 1990) United States v. Weaver, 282 F.3d 302 (4th Cir. 2002) United States v. Werking, 915 F.2d 1404 (10th Cir. 1990)... 14, 17 vi

8 UNITED STATES DISTRICT COURT CASES: Francis v. United States, No. 12 Civ (AJN), 2013 U.S. Dist. LEXIS (S.D.N.Y. Feb. 25, 2013) Sandoval-Moschetto v. United States, Nos. EP-11-CV-199-KC, EP-09-CR-892(1)-KC, 2013 U.S. Dist. LEXIS (W.D. Tex. Jan. 25, 2013) , 27 Scott v. Superintendent, No. 03-CV-06383, 2006 WL (E.D.N.Y. Oct. 31, 2006) Zapata-Banda v. United States, Nos. B: , B: 09-PO-2487, 2011 LEXIS (S.D. Tex. Mar. 7, 2011) STATE COURT CASES: Chacon v. State, 409 S.W.3d 529 (Mo. Ct. App. 2013)... 22, 23 Commonwealth v. Escobar, 70 A.3d 838 (Pa. Super. Ct. 2013) Neufville v. State, 13 A.3d 607 (R.I. 2011)... 27, 28 People v. Cox, 782 N.E.2d 275 (Ill. 2002)... 8 Ramirez-Gil v. State, 327 P.3d 1228 (Utah Ct. App. 2014) State v. Ferreira, 988 P.2d 700 (Idaho Ct. App. 1999) State v. Henderson, 756 P.2d 1057 (Idaho 1988) State v. Shata, 868 N.W.2d 93 (Wis. 2015)... 21, 22, 24, 29 CONSTITUTIONAL PROVISIONS: U.S. Const. amend. IV.... vii, 6, 7 U.S. Const. amend. VI.... vii, 20 vii

9 STATUTORY PROVISIONS: 21 U.S.C.A. 802 (West 2014) U.S.C.A. 812 (West 2012) U.S.C.A. 1227(a)(2)(B)(i)... viii, 21 Eg. R. Crim. Pro vii, 19 Eg. Stat vii, 3 OTHER AUTHORITIES: able, Dictionary.com, (last visited January 24, 2016) Deportable, Merriam-Webster, (last visited January 24, 2016) DUI Enforcement, COLORADO STATE PATROL: DEPARTMENT OF PUBLIC SAFETY (last visited Feb. 1, 2016), 11 Impaired Driving: Get the Facts, CENTERS FOR DISEASE CONTROL AND PREVENTION (Nov. 24, 2015), 11 Jeh Charles Johnson, Policies for the Apprehension, Detention and Removal of Undocumented Immigrants, 2 (Nov. 20, 2014), pdf) Jennifer Squires, Preventing DUIs Top Priority for Police, SANTA CRUZ SENTINEL: NEWS (Apr. 14, 2015), 11 viii

10 Naperville Tops Police Department in DUI Arrests, ALLIANCE AGAINST INTOXICATED MOTORISTS (last visited Feb. 1, 2016), 11 Yule Kim, Statutory Interpretation: General Principles and Recent Trends, Congressional Research Service, 6 (Aug. 31, 2008), 22 ix

11 CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED The Fourth Amendment of the United States Constitution states, 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 Sixth Amendment of the United States Constitution states, In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. Eg. Stat. 841 Controlled Substances, states in relevant part, It shall be unlawful for any person to knowingly or intentionally... [m]anufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance... [and] such person shall be sentenced to a term of imprisonment which may not be less than 5 years and not more than 40 years. Eg. R. Crim. Pro. 11 states in relevant part, A prisoner in custody under sentence who claims a right to be released on the ground that the sentence is subject to collateral attack may at any time proceed directly by motion in the court that imposed the sentence to vacate, set aside or correct it... If it appears that the movant is entitled to relief, the court shall vacate the judgment and discharge, resentence, or grant him or her a new trial, or correct the sentence as may be appropriate. x

12 8 U.S.C.A. 1227(a)(2)(B)(i) Deportable Aliens states, Any alien who at any time after admission has been convicted of a violation (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21), other than a single offense involving possession for one s own use of 30 grams or less of marijuana, is deportable. xi

13 STATEMENT OF THE CASE The Traffic Stop. Deputy David Sanderson (the deputy ) has worked for the Pawnee County Sheriff s Department for fifteen years. R. at 3. He received training as a law enforcement officer, which included detecting restricted pupils. R. at 4. On May 20, 2013, the deputy pulled over Tomas Haverford ( Haverford ) for a burnt out headlight. R. at 4, 8. When the deputy approached the vehicle, he noticed Haverford seemed very nervous. R. at 4, 11. Haverford s upper body was shaking considerably, and his pupils were restricted to approximately two to three millimeters. R. at 4, 11. After issuing a citation for the headlight, the deputy explained his concerns about Haverford s behavior, and asked Haverford if he would be willing to take field sobriety tests. R. at 5, 12. Haverford consented. Id. The deputy conducted the standard field sobriety tests, ultimately concluding that Haverford was not impaired. R. at 5, 14. The deputy told Haverford, you re okay to go. I ll let you get on your way then. R. at 14. Haverford acknowledged the deputy s dismissal, replying, Okay. You have a good day. Id. The deputy reiterated a farewell to Haverford, responding, Take care. Id. After the deputy and Haverford returned to their respective vehicles, Deputy Sanderson wondered whether Haverford would consent to a vehicle search. R. at 5. Twelve seconds after the deputy dismissed Haverford, he re-approached Haverford s vehicle again. R. 5, 14. The deputy first asked Haverford if he could speak with him once more when Haverford voluntarily stepped out of his vehicle and consented to a second conversation. R. at 5, 9, 14. The deputy then asked if Haverford would allow him to conduct a vehicle search. R. at 14. When Haverford consented, Deputy Sanderson inquired again for reassurance of Haverford s consent. Id. During the search of the vehicle, the deputy found the necessary ingredients to manufacture methamphetamine. R. at 5 6, 14. He also found a plastic bag containing a sandy-type substance 1

14 hidden inside Haverford s prescribed medication bottle, which later tested positive for methamphetamine. Id. Haverford was arrested for possession with intent to manufacture methamphetamine. R. at 14. The Motion to Suppress. Haverford filed a Motion to Suppress, alleging an unconstitutional and otherwise illegal search of his vehicle. R. at 15. On July 10, 2013, the Pawnee District Court for the State of Eagleton delivered a Decision and Order, finding in favor of the State. R The court determined that the extension of the stop was unlawful. R. at 17. However, the extension of the stop was not a but-for cause of the consent to search the vehicle because the traffic stop had concluded before the deputy asked for consent to search Haverford s vehicle. R. at 18, 21. On appeal, the Supreme Court for the State of Eagleton agreed with the trial court s decision to suppress the evidence, but affirmed on other grounds. R. at The court concluded that the extension of the stop was lawful because the deputy had reasonable suspicion to pursue field sobriety tests, and Haverford was not constructively seized because a reasonable person would have felt free to decline further contact. R. at 43, 45. Therefore, there was no Fourth Amendment violation to taint the subsequently obtained consent. R. at 43. The Plea Hearing. At the plea hearing, on August 21, 2013, Mark Brendanawicz ( Attorney Brendanawicz ), Haverford s criminal defense attorney, requested an adjournment because Haverford was concerned about the immigration consequences of his plea and did not want to be deported. R. at 24. The court denied Attorney Brendanawicz s request and suggested delaying the plea hearing. Id. However, the State s attorney was unavailable to reschedule, but emphasized that the plea agreement was fair with respect to the charges against Haverford. Id. The parties agreed to reconvene in thirty minutes for the plea hearing. R. at 25. 2

15 When the hearing reconvened, Attorney Brendanawicz stressed Haverford s concerns about deportation to the court. Id. The Court asked Attorney Brendanawicz if he had informed Haverford about the potential for deportation, which Attorney Brendanawicz confirmed that he had advised his client that deportation was a strong possibility. Id. The Judge also informed Haverford of the risk of deportation if found guilty for the charges brought against him. Id. After Attorney Brendanawicz s and the Court s warnings about the risk of deportation, Haverford pled guilty. Id. And even after pleading guilty, the Judge again inquired whether Haverford understood that he may be deported. Id. Haverford reassured the Court that he understood the immigration consequences. Id. The parties agreed to the charge of possession with intent to manufacture methamphetamine under the Controlled Substances Act, Eg. Stat. 841(a)(1). Id. While the maximum penalty for this crime was forty years, the State recommended ten years imprisonment. Id. Attorney Brendanawicz recommended the minimum penalty, i.e. five years imprisonment, for his client. R. at 26. Haverford s counsel again emphasized his client s concerns about being deported out of the United States. Id. Attorney Brendanawicz asked that Haverford s prison sentence be stayed and that he receive probation, as well as a post-sentence expungement in order to resolve any worries of deportation. Id. The Court denied both requests, and agreed to the State s sentencing recommendation of ten years imprisonment. Id. The Post-Conviction Motion. Haverford received a Notice to Appear in removal proceedings on September 23, R. at 22. Haverford subsequently filed a Motion to Withdraw Guilty Plea and vacate his conviction, arguing that Attorney Brendanawicz provided ineffective assistance of counsel for failing to advise Haverford of the deportation consequences of his plea agreement. R. at 28. At the post-conviction hearing, Attorney Brendanawicz testified 3

16 that he advised Haverford that there was a strong chance of deportation. R. at 29. He also testified that he asked several federal prosecutors whether the plea agreement could have deportation consequences, to which each replied, it could. R. at Attorney Brendanawicz testified that, despite warning Haverford of the strong risk of deportation, Haverford pled guilty because he was not likely to prevail at trial and no viable defense existed. R. at 29. On November 1, 2013, the Pawnee District Court for the State of Eagleton denied Haverford s Motion to Withdraw Guilty Plea. R. at 31, 37. The court found that Attorney Brendanawicz had performed deficiently, but, despite that, the court concluded that Haverford was not prejudiced. R. at 35, 36. The Supreme Court for the State of Eagleton heard Haverford s timely appeal. The court concluded that Attorney Brendanawicz did not perform deficiently, affirming the denial of Haverford s motion to withdraw his plea. R. at 39, 50. SUMMARY OF THE ARGUMENT Haverford has shown neither a violation of his Fourth nor Sixth Amendment rights. Accordingly, Haverford s challenges to the legality of the vehicle search and to the effective assistance of counsel fail. I. The Fourth Amendment protects the people s rights against unreasonable searches and seizures of their person and vehicles during traffic stops. An officer may extend the duration of a lawful traffic stop when he has reasonable suspicion that, based on the officer s knowledge and experience, further criminal conduct may exist. The officer must work quickly and diligently to dispel his suspicion. Deputy Sanderson properly relied on his extensive experience as a law enforcement officer when he observed Haverford s excessive nervousness and restricted pupils, and suspected 4

17 criminal behavior. Deputy Sanderson s reasonable suspicions permitted him to legally expand his inquiry and conduct field sobriety tests because the tests were related in scope to his suspicions. The deputy administered the tests quickly and diligently, and released Haverford immediately after completing the tests. Therefore, no Fourth Amendment violation occurred. Haverford was no longer seized under the traffic stop after Deputy Sanderson returned Haverford s documents and clearly dismissed him. Correspondingly, any subsequent encounter or conversation became consensual and voluntary. Haverford could reasonably assume he was free to deny Deputy Sanderson s later request to continue speaking to him and to search his vehicle. Therefore, Haverford s consent was freely and voluntarily given, and was not tainted by any prior illegality of the extension of the stop. II. Haverford s Sixth Amendment right to effective assistance of counsel was not violated when Attorney Brendanawicz provided correct advice about the deportation consequences of a guilty plea. Counsel s alleged failure to provide effective assistance of counsel, pursuant to the Sixth Amendment, prompts a Strickland analysis. Haverford must demonstrate not only that his attorney performed deficiently but also that such performance prejudiced his defense. Haverford fails to show that his counsel performed deficiently when he agreed that Attorney Brendanawicz had advised him of the strong possibility of deportation if he pled guilty. A criminal defense attorney is only required to inform his noncitizen client that there is a risk of deportation with a drug conviction. Haverford s counsel exceeded his obligation when he clearly informed Haverford that there was a strong chance of deportation. He even tried to negotiate a better plea to prevent any potential adverse immigration consequences against Haverford. 5

18 Even if Attorney Brendanawicz performed deficiently, Haverford s right to effective assistance of counsel was not violated because his attorney s performance did not prejudice him. Haverford contends that he would have proceeded to trial if he had known about the adverse immigration consequences of his guilty plea. But his conclusory allegations are insufficient to establish prejudice. The evidence against Haverford is overwhelming, and he had no viable defense. Proceeding to trial would not have changed the outcome of Haverford s conviction, and it is likely that he would have received a longer incarceration term. Further, the judge in Haverford s plea hearing distinctly warned him of the risk of deportation twice. And Haverford affirmed his understanding of the adverse immigration consequences in open court. Therefore, Haverford meets neither requirement for the ineffective assistance of counsel, and his Sixth Amendment rights were satisfied. ARGUMENT I. HAVERFORD S MOTION TO SUPPRESS SHOULD BE DENIED BECAUSE THE DEPUTY HAD SUFFICIENT REASONABLE SUSPICION TO EXTEND THE LAWFUL TRAFFIC STOP, HAVERFORD WAS NOT CONSTRUCTIVELY SEIZED WHEN CONSENT WAS REQUESTED, AND NO PRIOR ILLEGALITY OF THE EXTENDED TRAFFIC STOP TAINTED THE CONSENT. The Supreme Court of Eagleton correctly upheld the trial court s denial of Haverford s Motion to Suppress because Deputy Sanderson had reasonable suspicion to pursue a field sobriety test... [and] under the circumstances, a reasonable person would have felt free to leave... and not consent to the vehicle search. R. at 39. Therefore, Haverford s Fourth Amendment rights were not violated. The Fourth Amendment, in relevant part, guarantees that [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated... U.S. Const. amend. IV. It applies to the states through the Fourteenth Amendment. See Brown v. Illinois, 422 U.S. 590, 592 (1975) (citing Mapp v. Ohio, 367 U.S. 6

19 643, 655 (1961)). [T]he Constitution forbids... not all searches and seizures, but [only] unreasonable searches and seizures. Elkins v. United States, 364 U.S. 206, 222 (1960) (emphasis added). The reasonableness 1 is assessed using a totality of the circumstances approach. Florida v. Bostick, 501 U.S. 429, 437 (1991). The Motion to Suppress was appropriately denied because Deputy Sanderson can show that he properly relied on his experience and training as a police officer to determine whether further investigation was needed. The deputy quickly and diligently dispelled any suspicions that Haverford was impaired. Furthermore, Deputy Sanderson clearly and effectively ended the traffic stop prior to requesting consent to search Haverford s vehicle, creating a consensual interaction that did not trigger the Fourth Amendment. A. Relying on his Professional Experience, Deputy Sanderson Properly Extended the Lawful Traffic Stop to Quickly and Diligently Conduct Field Sobriety Tests that were Within the Scope of his Suspicions Because Haverford was Excessively Nervous and had Restricted Pupils. A traffic stop constitutes a seizure of the occupants... and therefore must be conducted in accordance with the Fourth Amendment. Heien v. North Carolina, 135 S. Ct. 530, 536 (2014) (citing Brendlin v. California, 551 U.S. 249, (2007)). A police officer s decision to stop a vehicle is reasonable if he ha[s] probable cause to believe that a traffic violation has occurred. Whren v. United States, 517 U.S. 806, 810 (1996) (citing Delaware v. Prouse, 440 U.S. 648, 659 (1979)). The subsequent investigation must be reasonably related in scope to the reasons for the stop. Berkemer v. McCarty, 468 U.S. 420, 439 (1984) (quoting 1 See Roaden v. Kentucky, 413 U.S. 496, 501 (1973) ( The Fourth Amendment proscription against unreasonable seizures... must not be read in a vacuum. A seizure reasonable as to one type of material in one setting may be unreasonable in a different setting or with respect to another kind of material. ) (alteration in original) (citing Coolidge v. New Hampshire, 403 U.S. 443, (1971) (Black, J., concurring and dissenting)); Ker v. California, 374 U.S. 23, 33 (1963) ( Each case is to be decided on its own facts and circumstances. ) (quoting Go-Bart Importing Co. v. United States, 282 U.S. 344, 357 (1931)). 7

20 Terry v. Ohio, 392 U.S. 1, 29 (1968)). However, if the vehicle occupant s responses, along with the surrounding circumstances, provide suspicions unrelated to the traffic offense, an officer may broaden his inquiry and satisfy those suspicions. United States v. Barahona, 990 F.2d 412, 416 (8th Cir. 1993) (citing Terry, 392 U.S. at 20). If the expansion prolongs the stop beyond the time reasonably required to complete th[e] mission of issuing a ticket for the violation, it must be supported by reasonable suspicion. Rodriguez v. United States, 135 S. Ct. 1609, 1615 (2015) (alteration in original) (quotations omitted) (quoting Illinois v. Caballes, 543 U.S. 405, 407 (2005)). 2 Officers suspicions must be based on specific and articulable facts, and the Courts review them using an objective standard. 3 Terry, 392 U.S. at Common sense and ordinary human experience must govern when the Court evaluates the reasonableness of an investigative detention. United States v. Sharpe, 470 U.S. 675, 685 (1985). The Court has emphasized the need to consider the law enforcement purposes... served by the stop as well as the time reasonably needed to effectuate those purposes. Id. Thus, the Court must consider (1) whether the officer s action was justified at its inception[,] (2) and... whether the police diligently pursued a means of investigation... likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the 2 In Illinois v. Caballes, an officer conducted a narcotics dog sniff of a vehicle while a second officer lawfully detained the driver for a traffic violation. 543 U.S. at 406. The Court held that conducting a dog sniff would not change the character of a traffic stop that is lawful at its inception and otherwise executed in a reasonable manner. Id. at 408. The Court distinguished this case from People v. Cox, 782 N.E.2d 275 (Ill. 2002), in which police unlawfully extended a stop to conduct a dog sniff without reasonable suspicion. Caballes, 543 U.S. at [W]ould the facts available to the officer at the moment of the seizure or the search warrant a man of reasonable caution in the belief that the action taken was appropriate?... If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be secure in their persons, house, papers, and effects, only in the discretion of the police. Terry, 392 U.S. at (first quoting Carroll v. United States, 267 U.S. 132, 162 (1925); then quoting Beck v. Ohio, 379 U.S. 89, 97 (1964)). 8

21 defendant. United States v. Foreste, 780 F.3d 518, 526 (2d Cir. 2015) (quoting Sharpe, 470 U.S. at 682, 686). 1. Deputy Sanderson s Decision to Conduct Field Sobriety Tests was Justified Because the Deputy can Rely on his Experience to Evaluate Haverford s Physical Responses and Nervousness is a Pertinent Factor to Determine Reasonable Suspicion. Under a commonsense approach, observing Haverford s restricted pupils, his upper body visibly shaking, and his nervous behavior is sufficient to extend the traffic stop. Navarette v. California, 134 S. Ct. 1683, 1690 (2014). Reasonable suspicion depends on the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. Id. (quoting Ornelas v. United States, 517 U.S. 690, 695 (1996)). Certain behaviors, when considered together, provide sound indicia and amount to reasonable suspicion of illegal conduct. Id.; United States v. Sokolow, 490 U.S. 1, 9 (1989). And even if there is the possibility of innocent conduct, a police officer can still conclude that certain behaviors warrant reasonable suspicion. United States v. Arvizu, 534 U.S. 266, 277 (2002); Navarette, 134 S. Ct. at The Court has stressed the various challenges when reviewing officer suspicions. Illinois v. Wardlow, 528 U.S. 119, (2000). [E]mpirical studies dealing with inferences drawn from suspicious behavior are not available, and the Court cannot reasonably demand scientific certainty from judges or law enforcement officers where none exists. Id. Thus, the Court must rely on commonsense judgments and inferences about human behavior when evaluating reasonable suspicion. Id. at 125 (citing United States v. Cortez, 449 U.S. 411, 418 (1981)). Law enforcement officers have a right to rely on [] experience in concluding that [certain] actions indicate that an individual may be lying. United States v. Brigham, 382 F.3d 500, 508 (5th Cir. 2004). Officers have become skilled at detecting nervous or evasive 9

22 responses from which the officer may gain valuable clues about a motorist s intentions. United States v. Holt, 264 F.3d 1215, 1224 (10th Cir. 2001). [N]ervous, evasive behavior is a pertinent factor in determining reasonable suspicion. Wardlow, 528 U.S. at 124; see also United States v. Brignoni-Ponce, 422 U.S. 873, 885 (1975). Deputy Sanderson is a fifteen-year veteran of the police force. R. at 3. Not only has he received training regarding the effects of drugs on pupils, but he also has substantial experience as an officer, allowing him to properly make inferences about the possible sources of Haverford s restricted pupils. R. at 3, 4, 12. Given his experience, Deputy Sanderson determined that Haverford s restricted pupils and excessive nervousness taken together created sufficient suspicion to conduct field sobriety tests. R. at 3, 5, 12. Because the Court cannot rely on scientific certainty, the Court must consider the totality of the circumstances. The deputy s significant experience and training, along with Haverford s concerning behavior and physical responses, permitted Deputy Sanderson to conduct field sobriety tests during a lawful traffic stop. 2. The Field Sobriety Tests were Reasonably Related in Scope to the Circumstances Justifying the Deputy s Reasonable Suspicion, and were Completed Diligently and Quickly in Order to Dispel Suspicions. Certain police conduct is typical of ordinary inquiries incident to [the traffic] stop. Rodriguez, 135 S. Ct. at 1615 (alteration in original) (quoting Caballes, 543 U.S. at 408). Such actions include checking the driver s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile s registration and proof of insurance. Id. (citing Prouse, 440 U.S. at ). If a driver s responses to regular questions result in heightened suspicions, the officer may expand his inquiry to more intrusive follow-up. United States v. Ramos, 42 F.3d 1160, 1163 (8th Cir. 1994). 10

23 Even if an officer broadens his original investigation to a more intrusive inquiry, field sobriety tests are minimally intrusive compared to other investigatory techniques, such as patfrisks. 4 See Terry, 392 U.S. at 17. Although administering field sobriety tests intrudes on an individual s privacy, a state s interest to protect its citizens from danger far outweighs the intrusion. 5 State v. Ferreira, 988 P.2d 700, 706 (Idaho Ct. App. 1999). Furthermore, field sobriety tests are the least intrusive means reasonably available to verify or dispel officer s suspicion in a short period of time that a driver is impaired. Id. at 709 (emphasis original). To determine whether an officer investigated his suspicion in a reasonably short period of time, the Court evaluates whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the [driver]. Sharpe, 470 U.S. at 686. In the present case, Deputy Sanderson immediately noticed Haverford s restricted pupils, his visibly shaking body, and his nervous behavior. R. at 4, 11. Based on these observations, the 4 Field sobriety tests do not rise to the level of a serious intrusion upon the sanctity of the person, [unlike a pat-frisk,] which may inflict great indignity and arouse strong resentment, and it [should not] be undertaken lightly. Terry, 392 U.S. at [T]he drunk driver is one of society s greatest concerns. 988 P.2d at 480 (citing State v. Henderson, 756 P.2d 1057, 1059 (Idaho 1988)). According to the Centers for Disease Control and Prevention, drunk or impaired driving accounts for as many as thirty deaths per day in the United States, and costs more than $59 billion annually. Impaired Driving: Get the Facts, CENTERS FOR DISEASE CONTROL AND PREVENTION (Nov. 24, 2015), [T]he state has a vital interest in promoting public safety by reducing alcohol-related traffic accidents and by ensuring the fitness of drivers behind the wheel. Ferreira, 988 P.2d at 706 (citing Henderson, 756 P.2d at 1059). Many cities and states throughout the country have explicitly indicated that stopping drunk drivers is a top priority among their police forces. See e.g., Jennifer Squires, Preventing DUIs Top Priority for Police, SANTA CRUZ SENTINEL: NEWS (Apr. 14, 2015), Naperville Tops Police Department in DUI Arrests, ALLIANCE AGAINST INTOXICATED MOTORISTS (last visited Feb. 1, 2016), DUI Enforcement, COLORADO STATE PATROL: DEPARTMENT OF PUBLIC SAFETY (last visited Feb. 1, 2016), 11

24 deputy had sufficient evidence to additionally ask Haverford to conduct field sobriety tests. R. at 5. Deputy Sanderson worked diligently and quickly to dispel his suspicions. He did not spend excessive time talking to Haverford regarding unrelated topics, nor did he spend extra time in his patrol car running checks. R. at 5, Deputy Sanderson issued the citation from inside his vehicle, walked over to Haverford s vehicle, explained the citation, and immediately elucidated his reasons for requesting field sobriety tests. Id. Upon conclusion of the field sobriety tests, the deputy immediately released Haverford and told him he was free to go. R. at 5, 14. Therefore, Deputy Sanderson s decision to conduct field sobriety tests was reasonable under the circumstances. He chose the least intrusive means reasonably available to dispel his suspicions, and he completed them quickly and diligently. B. Haverford s Consent to a Vehicle Search was Proper Because the Deputy did not Constructively Seize Haverford when he Re-Approached the Vehicle and Haverford s Consent was not Tainted by any Prior Fourth Amendment Violation. Consent is a wholly valid and well-established exception to a warrantless search. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 222 (1973) (first citing Katz v. United States, 389 U.S. 347, 358 (1967); then citing Vale v. Louisiana, 399 U.S. 30, 35 (1970)). Consent must be freely and voluntarily given. Id. at 222 (quoting Bumper v. North Carolina, 391 U.S. 543, 548 (1968)). To determine if consent is voluntary or coerced, the Court s evaluation must rely on the totality of the circumstances. Id. at 229. Awareness of the right to refuse is not necessary for a consent to be voluntary. Barahona, 990 F.2d at 417 (citing Bustamonte, 412 U.S. at ). Factors to consider include: The age of defendant; his general intelligence and education; whether he was under the influence of a mind-altering substance; whether he was informed of his right to withhold consent or of his Miranda rights; the length of time he was detained and questioned; whether he was threatened, physically intimidated, or punished by the police; whether he relied upon promises or misrepresentations made by the police; whether he was in a public or secluded location; and whether he objected to the search or passively looked on. 12

25 Id. (citing United States v. Chaidez, 906 F.2d 377, 381 (8th Cir. 1990)). In evaluating the above factors, the Court does not apply them as strict requirements. Instead, the factors are simply valuable as a guide to analysis. Id. (quoting Chaidez, 906 F.2d at 381). Haverford s consent to a vehicle search was voluntary. He was not constructively seized at the time he gave consent, and his consent was valid because it was not tainted by any prior illegality of the original traffic stop. 1. Haverford was not Seized Because a Reasonable Person Under Similar Circumstances Would have Felt Free to Leave When Deputy Sanderson was Alone, Respectful in Tone and Demeanor, had Returned Haverford s Documents, and Stated Explicitly that Haverford was Free to Go. [A] seizure does not occur simply because a police officer approaches an individual and asks a few questions. Bostick, 501 U.S. at 434. A person has been seized within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. United States v. Mendenhall, 446 U.S. 544, 554 (1980). The seizure that occurs during a traffic stop ends when the police have no further need to control the scene, and inform the driver and passengers they are free to leave. Arizona v. Johnson, 555 U.S. 323, 333 (2009). Furthermore, the validity of the driver s consent does not depend upon... having been [] informed that he was free to go. Mendenhall, 446 U.S. at 555. Officers are not required to explicitly inform the driver that he is free to leave. Ohio v. Robinette, 519 U.S. 33, (1996). In fact, returning the driver s documents is sufficient to end the stop. See United States v. Childs, 277 F.3d 947, 960 (7th Cir. 2002); United States v. Givan, 320 F.3d 452, 459 (3d Cir. 2002). 6 The Mendenhall Court 6 See also United States v. Werking, 915 F.2d 1404, 1409 (10th Cir. 1990) ( Before [the officer] asked [the defendant] any further questions, he returned [the defendant s] driver s license and registration papers... [The defendant] was free to leave the scene. ); United States v. Recalde, 13

26 provides several factors that may also contribute to whether a person feels free to leave, including: the threatening presence of several officers,... some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer s request might be compelled. Mendenhall, 446 U.S. at 554. In Mendenhall, two DEA agents approached a woman on a public concourse and requested to see her identification. Id. at 547, 555. After some questioning, the agents asked that Mendenhall accompany them to a small office inside the airport where they asked for her permission to search her bag and person. Id. at 548. The Mendenhall Court ultimately held that the initial approach was not a seizure and that Mendenhall s subsequent consent to a search was valid because the officers had returned her documents and asked calmly and politely if she would accompany them. Id. at 558. The agents cordial behavior was sufficient to show that [t]here were neither threats nor any show of force. Id. at 558. Similar to the officers in Mendenhall, Deputy Sanderson did not seize Haverford when he re-approached the vehicle. The interaction took place on a public street during the daytime. R. at 3. Also, Deputy Sanderson was even less threatening than the officers in Mendenhall because he was alone. 7 Mendenhall, 446 U.S. at 547. The deputy was congenial in tone and demeanor. R. at He did not demand, explicitly or implicitly, to search Haverford s vehicle. R. at F.2d 1448, 1453 (10th Cir. 1985) (noting that the officer held [the defendant s] driver s license and vehicle registration and had not returned them to [him] [Also, the defendant] was never told he was free to go. ); United States v. Weaver, 282 F.3d 302, (4th Cir. 2002) (... [O]ne common thread in Sullivan, Lattimore, and Rusher is that the searches occurred after the respective defendants had gotten their identification back. Thus, it is only logical to draw from these cases, as well as Royer, that the retention of a person's identification is an important factor in determining whether a seizure within the meaning of the Fourth Amendment occurred. While this fact may be important, under the totality of the circumstances, it surely is not dispositive. ) 7 The record does not explicitly indicate that Deputy Sanderson was alone, but there is no mention of a partner throughout Deputy Sanderson s testimony nor in the transcript from the audio of the traffic stop. R. at

27 Deputy Sanderson simply asked for permission to speak to Haverford again and to search the vehicle, showing there were no threats [or] any show of force. R. at 5, 14; Mendenhall, 446 U.S. at 548, 558. Like the Mendenhall officers, Deputy Sanderson returned Haverford s documents prior to requesting permission to search. R. at 12; Mendenhall, 446 U.S. at 558. Additionally, the time between when Deputy Sanderson returned the documents and when he requested permission to search was even longer than in Mendenhall. R. at 12; Mendenhall, 446 U.S. at 548. Furthermore, while the Court does not require an officer to inform a driver he is officially free to leave, Deputy Sanderson clearly did so in two distinct ways. R. at 14. First, he said Haverford was okay to go, and second, the deputy said, I ll let you get on your way then, to which Haverford affirmatively acknowledged the deputy s dismissal. R. at 14. And second, the deputy said, I ll let you get on your way then. R. at 14. Deputy Sanderson went above and beyond what was required by this Court to end a traffic stop. Robinette, 519 U.S. at The totality of the circumstances demonstrates that Haverford should have felt free to go because Deputy Sanderson was unthreatening as a single officer, was respectful and professional, returned Haverford s documents, and informed Haverford twice that he was free to leave. Therefore, Haverford was no longer seized when the traffic stop ended. 2. Although the Traffic Stop was Lawfully Extended and Haverford was not Seized, Haverford s Consent was Sufficient to Purge any Potential Taint Because There were Intervening Circumstances that Created a Consensual Encounter, Eliminating any Fourth Amendment Concerns. Even if Haverford were constructively seized, his subsequent consent to the search, given the totality of the circumstances, was sufficiently an act of free will to purge... [any potential] taint. Ramos, 42 F.3d at 1164 (quoting Wong Sun v. United States, 371 U.S. 471, 486 (1963)). Evidence obtained following a Fourth Amendment violation is not automatically 15

28 inadmissible against the person who experienced the violation. See Wong Sun, 371 U.S. at The attenuation doctrine allows admission of evidence if the causal connection between the constitutional violation and the discovery of the evidence has become so attenuated as to dissipate the taint. United States v. Terzado-Madruga, 897 F.2d 1099, 1113 (11th Cir. 1990) (citing United States v. Ceccolini, 435 U.S. 268, 273 (1978)). The notion of the dissipation of the taint attempts to mark the point at which the detrimental consequences of illegal police action become so attenuated that the deterrent effect of the exclusionary rule no longer justifies its cost. Brown, 422 U.S. at 609 (White, J., concurring). Factors to consider in determining whether the attenuation doctrine is triggered include: the temporal proximity of the arrest and the consent, the presence of intervening circumstances, and, particularly the purpose and flagrancy of the official misconduct. Recalde, 761 F.2d at 1458 (first citing Dunaway v. New York, 442 U.S. 200, 218 (1979); then citing Brown, 422 U.S. at ). [T]he temporal proximity factor [is analyzed] in conjunction with the presence of intervening circumstances. United States v. Reed, 349 F.3d 457, 464 (7th Cir. 2003). 8 Intervening causes during a traffic stop may include returning the driver s documents, advising the driver that he is free to leave, and requesting permission to continue talking to him. Givan, 320 F.3d at 459. These actions convert a traffic stop into a consensual encounter. Id. at 458. A consensual encounter is simply the voluntary cooperation of a private citizen in response to non-coercive questioning by a law enforcement official. Werking, 915 F.2d at The intervening circumstances factor is more heavily weighed than the temporal proximity factor. Dunaway, 442 U.S. at 220 (Stevens, J., concurring) ( The temporal relationship between the arrest and the confession may be an ambiguous factor. ). The Court has consistently held that there must be some event that breaks the casual chain between the violation and the consent. See Brown, 422 U.S. at 604 (holding that two hours was insufficient to create attenuation because no intervening event of significance whatsoever occurred); Taylor v. Alabama, 457 U.S. 687, 691 (1982) (holding that a difference of a few hours is not significant where no intervening circumstances occurred). 16

29 An encounter becomes consensual when a reasonable person would feel free to disregard the police and go about his business. Bostick, 501 U.S. at 434 (quoting California v. Hodari D., 499 U.S. 621, 628 (1991)). When encounters are consensual, no reasonable suspicion is required... [and it] will not trigger Fourth Amendment scrutiny. Id. In Werking, the officer returned Werking s driver s license and registration papers before continuing with additional questions. 915 F.2d at The court held that these actions terminated the seizure and converted the stop into a consensual encounter because the driver had an objective reason to believe that he was... free to end his conversation with the... [officer] and proceed on his way. Id. at All conversations after the officer returned his papers were the voluntary cooperation of a private citizen with a [police] officer. Id. In the present case, not only did Deputy Sanderson return Haverford s documents, but he also clearly terminated the traffic stop when he said, you re okay to go. I ll let you get on your way then. R. at 5, 14. Haverford even acknowledged the deputy s dismissal before both parties returned to their vehicles. R. at 14. Such circumstances converted the stop into a consensual encounter, rendering Haverford s subsequent consent voluntary. Werking, 915 F.2d at Finally, there is no indication from the record that Deputy Sanderson s behavior was purposeful or flagrant because his original goal was not to conduct a vehicle search. 9 Deputy Sanderson s request to search Haverford s vehicle was an afterthought, considered only after he dismissed Haverford from the original traffic stop. R. at 5, The deputy s encounter with 9 Contrast Deputy Sanderson s intentions with the police in Brown. 422 U.S. at 591, 602, 605 ( Petitioner was arrested without probable cause and without a warrant... as part of an investigative endeavor by the police, which [gave] the appearance of having been calculated to cause surprise, fright, and confusion. ). 10 The record shows that the deputy was not purposeful or flagrant in his intentions. In his testimony, Deputy Sanderson stated, I returned to my squad car, to the driver s side, and I wondered if he would consent to a vehicle search... R. at 5. Justice Ginsburg noted that the 17

30 Haverford was casual, providing the proper environment to allow Haverford to deny the deputy s vehicle search request. First, Deputy Sanderson asked if Haverford would allow the deputy to ask him another question, to which Haverford got out of his car and agreed to verbally. 11 Id. Second, Deputy Sanderson asked if Haverford would allow him to search the vehicle. R. at 14. The deputy even verified that Haverford had in fact consented. 12 Id. Therefore, Deputy Sanderson was not purposeful or flagrant with Haverford s Fourth Amendment rights when he requested consent to search Haverford s vehicle. C. Summary Haverford s Fourth Amendment rights were not violated. The initial traffic stop was lawfully extended when Deputy Sanderson observed Haverford s restricted pupils and excessive nervousness, and properly relied on his own professional experience to evaluate the implications. He then completed field sobriety tests quickly and diligently to dispel his suspicions. Because the stop was not unlawfully extended, the subsequent consent was not tainted by illegality. However, deputy s type of behavior during the traffic stop was acceptable. [T]raffic stops in the State were regularly giving way to contraband searches, characterized as consensual, even when officers had no reason to suspect illegal activity. Robinette, 519 U.S. at 40 (Ginsburg, J., concurring). 11 Haverford immediately stepped from his vehicle when Deputy Sanderson re-approached him and asked permission to ask him more questions. R. at 5. Getting out of his car unsolicited is acquiescence to the deputy s request to speak with him further. See Barahona, 990 F.2d at 418 (citing United States v. Buettner-Janusch, 646 F.2d 759, 764 (2d Cir. 1981)) ( A person s consent may be inferred from his or her words, gestures, and conduct. ). 12 The transcript states the following: (12 seconds later) Officer: Hey, Tom, can I talk to you again? Haverford: Yes, sir? Officer: Do you have anything that I need to know about? Haverford: No, sir. Officer: May I search your vehicle? Haverford: Why not. Yeah. Go ahead. Officer: That s fine? Haverford: Yes, sir. R. at