Supreme Court of the United States

Transcription

1 NO IN THE Supreme Court of the United States TOMAS HAVERFORD, Petitioner, v. STATE OF EAGLETON, Respondent. ON WRIT OF CERTIORARI TO THE SUPREME COURT OF EAGLETON BRIEF FOR RESPONDENT ABCDEF G. HIJKLMNOP Counsel of Record TEAM NUMBER Main Boulevard Madison, WI 12345

2 QUESTIONS PRESENTED (1) Whether the district court properly denied the Petitioner s motion to suppress the evidence of methamphetamine and the equipment and supplies commonly used to manufacture methamphetamine: (a) Whether Deputy Sanderson had reasonable suspicion to extend a lawful traffic stop about a burnt-out headlight to investigate whether Petitioner was under the influence of drugs in the operation of his vehicle by having Petitioner perform field sobriety tests? (b) If the traffic stop was not lawfully extended to investigate drug use by Petitioner, was Petitioner s subsequent consent to search his truck tainted by prior illegality, so that the evidence seized was inadmissible? (c) Was Petitioner constructively seized without reasonable suspicion when the deputy reapproached Petitioner s vehicle to request consent to search? (2) Whether the district court properly refused to allow Petitioner to withdraw his guilty plea: (a) Was Attorney Brendanawicz s assertion that Petitioner s conviction led to a risk of deportation constitutionally deficient? (b) Was Petitioner prejudiced because of Attorney Brendanawicz s deficient performance? i

3 TABLE OF CONTENTS QUESTIONS PRESENTED...i TABLE OF CONTENTS......ii TABLE OF AUTHORITIES.iii CONSTITUTIONAL PROVISIONS OR STATUTES INVOLVED...v STATEMENT OF THE CASE....1 SUMMARY OF THE ARGUMENT ARGUMENT...5 I. THE DISTRICT COURT PROPERLY DENIED PETITIONER S MOTION TO SUPPRESS...5 a. Deputy Sanderson Had Reasonable Suspicion to Support the Continued Seizure of Petitioner Following the Completion of the Traffic Stop b. Even If the Traffic Stop Was Not Lawfully Extended, the Illegality of that Seizure Did Not Taint the Evidence Obtained Through Petitioner s Subsequent Consent...9 c. Petitioner Was Not Constructively Seized Without Reasonable Suspicion When Deputy Sanderson Returned to Petitioner s Vehicle to Request Consent to Search...13 II. THE DISTRICT COURT PROPERLY DENIED PETITIONER S MOTION TO WITHDRAW THE GUILTY PLEA...15 a. Brendanawicz s Performance Was Not Deficient When He Advised Petitioner of the Risk of Deportation of Accepting the Guilty Plea...15 b. Brendanawicz s Performance Did Not Result in Prejudice...20 c. Holding that Counsel Should Have Advised Petitioner that Deportation Was Mandatory for Accepting the Guilty Plea in this Case Would Be Unfair And Flood the Courts With Frivolous Lawsuits...23 CONCLUSION...24 ii

4 TABLE OF AUTHORITIES UNITED STATES SUPREME COURT CASES Arizona v. Johnson, 555 U.S. 323 (2009)...6 Brown v. Illinois, 422 U.S. 590 (1975) 11, 12 California v. Hodari D., 499 U.S. 621 (1991)...13 Florida v. Bostick, 501 U.S. 429 (1991)..13, 14 Heien v. North Carolina, 135 S. Ct. 530 (2014)..8 Hill v. Lockhart, 474 U.S. 52 (1985).20 Illinois v. Caballes, 543 U.S. 405 (2005) 7 Illinois v. Gates, 462 U.S. 213 (1983).8 Illinois v. Wardlow, 528 U.S. 119 (2000) 8 I.N.S. v. St. Cyr, 533 U.S. 289 (2001) 17 Knowles v. Iowa, 525 U.S. 113 (1998) 6 Lafler v. Cooper, 132 S.Ct (2012)...15 Mapp v. Ohio, 367 U.S. 643 (1961).9 Missouri v. Frye, 132 S.Ct (2012)...15, 20, 21 Nardone v. United States, 308 U.S. 338 (1939).10 Nix v. Williams, 467 U.S. 431 (1984) 9, 10 Padilla v. Kentucky, 599 U.S. 356 (2010)...15, 16, 17, 18, 19, 23 Richards v. Wisconsin, 520 U.S. 266 (2002)...7 Rodriguez v. United States, 135 S.Ct (2015).7 Roe v. Flores Ortega, 528 U.S. 470 (2000)..21 Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920)...10 Strickland v. Washington, 466 U.S. 668 (1984)...15, 16, 17, 20, 23 Terry v. Ohio, 392 U.S. 1 (1968)...5, 6, 7, 13 United States v. Arvizu, 534 U.S. 266 (2002)..7, 8 United States v. Calandra, 414 U.S. 338 (1974).9 United States v. Drayton, 536 U.S. 194 (2002).13 United States v. Leon, 468 U.S. 897 (1984) 9 United States v. Mendenhall, 446 U.S. 544 (1980)...13, 14, 15 Wong Sun v. United States, 371 U.S. 471 (1963)..11 UNITED STATES COURT OF APPEALS CASES United States v. West, 103 Fed.Appx. 460, 462 (3d Cir. 2004)...8 United States v. Thompson, 941 F.2d 66, 70 (2d Cir. 1991) 8 United States v. Jones, 269 F.3d 919 (8th Cir. 2001)...8 iii

5 STATE COURT CASES Chacon v. State, 409 S.W.3d 529 (Mo. Ct. App. 2013) 18 Com. v. Escobar, 70 A.3d 838 (Pa. Super. Ct. 2013)...17 Popoca-Garcia v. State, 334 P.3d 824 (Id. Ct. App. 2014)...18 State v. Shata, 364 Wis. 2d 63 (Wis. 2015)...18 CONSTITUTIONAL PROVISIONS U.S. Const. amend. IV.5 U.S. Const. amend. VI...15 STATUTORY PROVISIONS 8 U.S.C (2008) 3 Eagleton R. Crim. Pro MISCELANEOUS Deportable Definition, Merriam-Webster.com, ortable (last visited Jan. 31, 2016)...17 iv

6 CONSTITUTIONAL PROVISIONS OR STATUTES INVOLVED The Fourth Amendment guarantees, in relevant part, [t]he right of the people to be secure... against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.... U.S. Const. amend IV. The Sixth Amendment guarantees, in relevant part, the rights of criminal defendants, including... the right to a lawyer.... U.S. Const. amend. VI. v

7 STATEMENT OF THE CASE This matter arises from a police officer conducting an investigation after determining that criminal activity may be occurring and a lawyer advising his client, after consulting other attorneys, of consequences that a guilty plea may trigger. On May 20, 2013, Deputy David Sanderson of the Pawnee County Sheriff s Department spotted a maroon Chevy truck with a burnt out headlight. R. at 2 3. Deputy Sanderson pulled the truck over and found Petitioner Tomas Haverford in the driver s seat. Id. After approaching the truck, Deputy Sanderson took Petitioner s license and registration and returned to his squad car to issue Petitioner a citation for his traffic violation. R. at 5. Shortly thereafter, Deputy Sanderson returned to Petitioner s vehicle and completed the traffic stop. R. at 4. But before sending Petitioner on his way, Deputy Sanderson noticed that Petitioner was shaking, appeared to be nervous, and had restricted pupils. R. at 4. For that reason, Deputy Sanderson asked Petitioner if he would be willing to take a field sobriety test. R. at 5. Petitioner consented to the field sobriety and passed. Id. After completing that investigation, Deputy Sanderson told Petitioner that he was free to go. R. at 5, 14. And so He left. After exchanging goodbyes, Petitioner returned to the driver s seat of his Chevy truck while Deputy Sanderson returned to his squad car. R. at 5. Approximately twelve seconds later, Deputy Sanderson returned to the Chevy truck. Id. This time, Deputy Sanderson asked Petitioner if he could speak to him a second time. Id. When Petitioner said yes, Deputy Sanderson asked if he could have permission to search his truck. Id. Petitioner responded, Why not. Yeah. Go ahead. R. at 14. During his search of Petitioner s truck, Deputy Sanderson discovered, among other things, ammonium lactate, muriatic acid and fuel for a heating canister evidence of a portable methamphetamine lab. R. at 5, 14. Deputy Sanderson 1

8 then placed Petitioner under arrest for possession with intent to manufacture methamphetamine. R. at 14. After reviewing Petitioner s motion to suppress, the Pawnee District Court for the State of Eagleton concluded that Deputy Sanderson did not violate Petitioner s Fourth Amendment rights. R. at 21. Petitioner s plea hearing took place at 10:05am in the morning on August 21, R. at Mark Brendanawicz, now Petitioner s former counsel, appeared for Petitioner at the plea hearing. R. at 24. During the proceeding, Brendanawicz requested an adjournment instead of a new plea hearing date, arguing, The issue is Mr. Petitioner doesn t want to have to be deported. He s worried about the consequences of his plea, so that s what I m dealing with. I m trying to figure it out, but it s difficult, but the trial judge denied Brendanawicz s request. Id. Court adjourned for about half an hour, during which Brendanawicz spoke with Petitioner. R. at Upon reconvening, the judge, Brendanawicz, and Petitioner had the following exchange: THE COURT: Did you inform your client that there is a possibility he could be deported? MR. BRENDANAWICZ: Yes, I told him that deportation is a strong possibility. THE COURT: Mr. Haverford, there is a risk, if found guilty of this crime, that you may be deported or denied admission. Knowing this, how do you plead? MR. HAVERFORD: Guilty. THE COURT: And you understand you may be deported? MR. HAVERFORD: Yes. I am worried, but I understand. R. at 25. The trial court sentenced Petitioner to ten years in prison. R. at 26. Brendanawicz properly preserved the right to appeal the denial of the motion to suppress. Id. 2

9 On September 23, 2013, the Immigration and Naturalization Service send a Notice to Appear to Petitioner, ordering him to appear before an immigration judge of the Department of Justice to explain why he should not be deported. R. at 22. The I.N.S. claimed Petitioner was deportable under 237(a)(2)(B)(i) of the Immigration and Nationality Act for conviction under a controlled substance law and under 237(a)(2)(A)(ii) of the Immigration and Nationality Act for being convicted of an aggravated felony. Id. Shortly after receiving the Notice, Petitioner filed a motion to withdraw his guilty plea under Eagleton R. Crim. Pro. 11, alleging that Brendanawicz performed deficiently because he did not correctly inform Petitioner of the deportation risk of his guilty plea. R. at 28. Eagleton R. Crim. Pro. 11 authorizes the trial court to vacate the judgment and grant the defendant a new trial when the defendant claims his conviction is subject to collateral attack. R. at 59. The trial court held the postconviction hearing on October 16, 2013, with Petitioner represented by a new attorney, Benjamin Wyatt. R. at 27. During Wyatt s direct examination of Brendanawicz, Brendanawicz expressed that he knew Haverford s crime would subject him to deportation, but [Brendanawicz] didn t know it was mandatory and did not use the word mandatory in his conversations with Petitioner. R. at 28. Brendanawicz did not research the immigration consequences of Petitioner s crime to find out if deportation was mandatory. Id. He did contact several federal prosecutors, about whether or not pleading guilty would subject Petitioner to deportation. Id. He was left with the impression that Everyone I questioned, who did that type of law, just said may in regards to the possibility of deportation. R. at 29. Petitioner, during his direct examination, said that Brendanawicz did not say he would be automatically deported for pleading guilty to the crime. Id. He also said, [Brendanawicz] told me that he was trying to get me probation so I wouldn t be deported, that they would only deport 3

10 me if I went to jail. R. at 30. Petitioner also claims that he would not have pleaded guilty if he had known deportation would have been automatic. Id. He would have gone to trial. Id. He has [n]o family, no job, nothing back in Venezuela. Id. Brendanawicz told Petitioner that there was a strong risk and a strong chance of being deported. R. at 29. He said that Petitioner chose to enter the guilty plea because his trial had no defense, no viable defense and [they] could not really prevail if [they] went to trial. Id. SUMMARY OF THE ARGUMENT Two settled policies of criminal procedure govern this case. One of those positions is that no legitimate Fourth Amendment interest is burdened when police officers, positioned at a lawful vantage point, investigate potentially illegal activity after discovering incriminating facts. Another is that no legitimate Sixth Amendment interest is burdened when defense counsel advises the defendant of the risk of deportation as less than mandatory in the event that the deportation statute is unclear. With those policies in mind, this Court should affirm the Fourteenth Circuit s decision on two independent grounds. First, the decision of the lower court to deny the motion to suppress should be affirmed because Deputy Sanderson s interaction with Petitioner was at all times lawful. Deputy Sanderson decision to extend the seizure beyond the issuance of a traffic citation was supported by independent and articulable reasonable suspicion. And following the conclusion of that investigatory encounter, a reasonable person in Petitioner s position would have felt free to leave. For that reason, Petitioner was not constructively seized and his consent to search his truck was voluntarily given. But even if Deputy Sanderson s decision to extent the traffic stop to investigate additional illegal activity was not supported by sufficient probable cause, the subsequent consensual search was sufficiently distinguishable from any prior constitutional 4

11 violation. Thus, evidence obtained through the consensual search was not tainted by a Fourth Amendment violation. Second, the decision of the lower court to deny the motion to withdraw the guilty plea should be affirmed because Brendanawicz s advice as to the risk of deportation of the guilty plea was correct. Petitioner s ineffective assistance of counsel claim fails because Brendanawicz s performance was not deficient and prejudice did not result from his performance. Brendanawicz s performance was not deficient because the deportation statute was unclear and Brendanawicz gave correct advice as to the risk of deportation after sufficient research. Even if the Court reached the issue of prejudice, Brendanawicz s performance was not prejudicial because there was not a reasonable probability that Petitioner would have rejected the plea deal because his bare assertion that he would not have taken the plea deal and his desire not to return to Venezuela were not sufficient evidence to raise a reasonable probability. Further, Petitioner received the right to a fair trial but waived it by guilty plea and granting his motion to withdraw the guilty plea would flood the courts with ineffective assistance of counsel claims whenever a risk of deportation was a consequence of accepting a guilty plea. Thus, Brendanawicz s performance did not implicate a violation of the Sixth Amendment right to effective assistance of counsel. ARGUMENT I. THE DISTRICT COURT PROPERLY DENIED PETITIONER S MOTION TO SUPPRESS. The Fourth Amendment prohibits unreasonable searches and seizures. U.S. CONST. amend. IV. In Terry v. Ohio, this Court first explored whether a warrantless investigatory stop and search violates that prohibition. 392 U.S. 1, 8 9 (1968). The Court held that a law enforcement official may lawfully stop an individual to investigate when the official observes 5

12 unusual conduct which leads him reasonably to conclude... that criminal activity may be afoot. Id. at 30. In Knowles v. Iowa, this Court compared Terry to an investigative stop of a motor vehicle. 525 U.S. 113, 119 (1998) ( finding a routine traffic stop to be more analogous to a so-called Terry stop... than to a formal arrest ) (internal quotation marks omitted). Subsequently, the Court solidified the comparison between a Terry stop and a traffic stop. See Arizona v. Johnson, 555 U.S. 323, 326 (2009). In so doing, this Court extended the Terry rationale to an investigatory stop of a vehicle, finding such a stop lawful when a law enforcement official is inquiring, based on a reasonable suspicion, into a possible vehicular violation. Id. With that in mind, Deputy Sanderson s interaction with Petitioner was at all times lawful. As an initial matter, Deputy Sanderson decision to extend the seizure beyond the issuance of a traffic citation was supported by independent and articulable reasonable suspicion. And following the clear conclusion of that investigatory encounter, a reasonable person in Petitioner s position would have felt free to leave. For that reason, Petitioner was not constructively seized and his consent to search his truck was voluntarily given. But even if Deputy Sanderson s decision to extent the traffic stop to investigate additional illegal activity was not supported by sufficient probable cause, the subsequent consensual search was sufficiently distinguishable from any prior constitutional violation. Thus, evidence obtained through the consensual search was not tainted by a Fourth Amendment violation. Accordingly, the decision of the lower court should be affirmed. a. Deputy Sanderson Had Reasonable Suspicion to Support the Continued Seizure of Petitioner Following the Completion of the Traffic Stop. First, Petitioner claims that Deputy Sanderson did not have sufficient reasonable suspicion to support the continued seizure beyond the time necessary to issue Petitioner a citation for his burn-out headlight violation. Because Deputy Sanderson s observation of Petitioner s 6

13 restricted pupils and nervous behavior provided an independent, particularized and objective reason to believe that the Petitioner may have been engaged in unlawful activity, Petitioner s argument fails. A seizure resulting from a suspected traffic violation justifies investigation of that violation. Rodriguez v. United States, 135 S.Ct. 1609, 1614 (2015). Further, in addition to conducting an investigation related to the suspected traffic violation, [o]fficers may conduct certain unrelated checks during an otherwise lawful traffic stop. Id. However, because addressing the traffic violation is the core purpose of the stop, the seizure may last no longer than is necessary to effectuate [that] purpose. Illinois v. Caballes, 543 U.S. 405, 407 (2005). Thus, authority for the seizure ends when tasks tied to the traffic infraction are or reasonably should have been completed. Rodriguez, 135 S.Ct. at That does not mean that an officer may never conduct an investigation into suspected illegal activity once the officer has completed the tasks associated with the traffic violation. To the contrary an officer may prolong a traffic stop when the officer has reasonable suspicion ordinarily demanded to justify detaining an individual. Id. at The critical question, then, is whether investigation into matters unrelated to the justification for the stop is independently supported by individualized, reasonable suspicion. Id. at The reasonable suspicion standard is not high. Richards v. Wisconsin, 520 U.S. 266, 273 (2002). Indeed, reasonable suspicion requires even less of a likelihood of criminal activity than does probable cause. Id. To wit, the reasonable suspicion standard mandates only that the government demonstrate a particularized and objective basis that criminal activity may be afoot. United States v. Arvizu, 534 U.S. 266, 273 (2002) (emphasis added); Terry, 392 U.S. at 30. Law enforcement officials need not believe that criminal activity is probably occurring to 7

14 harbor a reasonable suspicion, just that such activity may be occurring. See id.; cf. Illinois v. Gates, 462 U.S. 213, 235 (1983) (holding probable cause requires showing the probability... of criminal activity (internal quotation marks omitted)). And although potentially suspicious behavior may have an innocent explanation, a combination of behaviors all of which may provide the possibility of innocent explanation can give rise to reasonable suspicion. See Arvizu, 534 U.S. at Although nervous behavior in isolation is not necessarily enough to establish reasonable suspicion, nervousness combined with restricted pupils is sufficient to give rise to reasonable suspicion of illegal activity. This Court has noted that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion. Illinois v. Wardlow, 528 U.S. 119, 124 (2000). And various circuit courts have found that nervous accompanied by another modicum of suspicion is sufficient to establish reasonable suspicion. See, e.g., United States v. West, 103 Fed.Appx. 460, 462 (3d Cir. 2004) (reasoning that nervous behavior taken together with hesitation was sufficient to establish reasonable suspicion); United States v. Thompson, 941 F.2d 66, 70 (2d Cir. 1991) (concluding that nervous behavior taken together with the suspect s attempt to hide facts from investigating officers was sufficient to establish reasonable suspicion). But see United States v. Jones, 269 F.3d 919 (8th Cir. 2001) (finding nervous behavior alone insufficient to establish reasonable suspicion). Considered in the aggregate, Deputy Sanderson s observation of Petitioner s nervous behavior and restricted pupils was sufficient to establish reasonable suspicion. Furthermore, an officer may harbor reasonable suspicion even if the officer reasonably misinterprets the facts that he or she observes. Heien v. North Carolina, 135 S.Ct. 530, 534, 540 (2014) ( Reasonable suspicion arises from the combination of an officer s understanding of the 8

15 facts and his understanding of the relevant law. The officer may be reasonably mistaken on either ground. ). So even if Deputy Sanderson s observations that Petitioner s pupils were three millimeters and that Petitioner was shaking nervously were not in fact correct, Deputy Sanderson may still have harbored sufficient reasonable suspicion to extend the stop. R. at 18. More to the point, there is no evidence to suggest that Deputy Sanderson did not, at least, reasonably believe that Petitioner s pupils were restricted and that Petitioner was shaking nervously. b. Even If the Traffic Stop Was Not Lawfully Extended, the Illegality of that Seizure Did Not Taint the Evidence Obtained Through Petitioner s Subsequent Consent. Second, Petitioner claims that, if there was not reasonable suspicion to support the extended stop, then any evidence obtained during the subsequent search to which Petitioner consented was tainted by the unconstitutional seizure and is thus inadmissible. Because Deputy Sanderson sought Petitioner s consent after ending the previous encounter, Petitioner s argument does not succeed. Evidence obtained through unconstitutional means is generally inadmissible. Mapp v. Ohio, 367 U.S. 643 (1961). Historically, judicial integrity justified applying the exclusionary rule to the evidence obtained through an illegal search or seizure. Id. at 659 ( Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard for the charter of its own existence. ). Today, courts consider the exclusionary rule a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect.... United States v. Leon, 468 U.S. 897, 906 (1984) (citing United States v. Calandra, 414 U.S. 338, 348 (1974)); see also Nix v. Williams, 467 U.S. 431, 442 (1984) ( [T]his admittedly drastic and socially costly course is needed to deter police from violations of constitutional and statutory protections. ). And because of the rule s important deterrent effect, 9

16 courts have extended its application to reach evidence one degree removed from an unconstitutional search or seizure: evidence obtained through the use of information gained from an illegal search or with the assistance of an illegal seizure is also inadmissible. See Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920) ( The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. ); Nardone v. United States, 308 U.S. 338, 341 (1939) (characterizing this type of inadmissible evidence as fruit of the poisonous tree ). But this Court has recognized that while the exclusionary rule is intended to ensure that the prosecution is not... put in a better position that it would have been if no illegality had transpired, the rule is also meant to ensure that the prosecution is not put in a worse position simply because of some earlier police error or misconduct. Nix, 467 U.S. at 443. To wit, evidence discovered through means independent of any constitutional violation is admissible. See, e.g., Nix, 467 U.S. at 443 ( The independent source doctrine allows admission of evidence that has been discovered by means wholly independent of any constitutional violation. ). Likewise, evidence obtained in a manner that has become so attenuated from any constitutional violation such that the violation has no effect on the subsequent collection of evidence is admissible. See, e.g., Nardone, 308 U.S. at 341 (noting that the causal connection between a constitutional violation and the collection of evidence may become so attenuated as to dissipate the taint of the violation). In determining whether this attenuation exception applies, the core question is whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means 10

17 sufficiently distinguishable to be purged of the primary taint. Wong Sun v. United States, 371 U.S. 471, (1963). In Brown v. Illinois, the Court elaborated on the attenuation exception to the exclusionary rule. 422 U.S. 590 (1975). The Brown Court clarified that adherence to minimal procedural requirements there, Miranda warnings is not sufficient to purge evidence of the taint of a prior constitutional violation. Id. at The Court reasoned that voluntariness for Fifth Amendment purposes does not necessarily satisfy voluntariness for Fourth Amendment purposes. Id. at 601. Further, the Court articulated three factors to be considered in determining whether the officer obtained the evidence at issue by exploiting an earlier constitutional violation: the temporal proximity between the constitutional violation and the subsequent collection of evidence, the presence of intervening circumstances, and the purpose and flagrancy of the constitutional violation. Id. at 604. The consensual interaction between Petitioner and Deputy Sanderson is sufficiently distinguishable from any previous illegality. For that reason, Petitioner s consent purges the evidence obtained through it of any unconstitutional taint. Although this final interaction between Petitioner and Deputy Sanderson occurred only twelve seconds after Deputy Sanderson completed Petitioner s field sobriety test, there were three significant intervening factors that detached the field sobriety test from the search of Petitioner s vehicle. First, Deputy Sanderson expressly and definitively terminated his seizure of Petitioner at the conclusion of the field sobriety test. Once Petitioner completed what Deputy Sanderson characterized as the last exercise he was going to have Petitioner do, Deputy Sanderson said Alright, you re okay to go. R. at 14. And even if that was not clear enough, Deputy Sanderson also said, I ll let you get on your way then, followed be, Take care. R. at

18 Following their exchange of goodbyes, Deputy Sanderson returned to his squad car while Petitioner returned to his truck. R. at 5. Second, before initiating their final interaction, Deputy Sanderson asked Petitioner for permission to speak to him again. R. at 14. As he approached Petitioner s vehicle for the third time, Deputy Sanderson said, Hey, Tom, can I talk to you again? R. at 14. To which Petitioner responded affirmatively. R. at 14. Third, after gaining affirmative consent to speak to Petitioner again, Deputy Sanderson sought permission to search Petitioner s truck. R. at 14. In response to that request, Petitioner said, Why not. Yeah. Go ahead. R. at 14. Given the clear termination of the second encounter between Petitioner and Deputy Sanderson followed up the consensual initiation of their third interaction, intervening factors render the two encounters sufficiently distinguishable. Finally, even if Deputy Sanderson did violate Petitioner s Fourth Amendment right by extending the lawful traffic stop, he did so in a good faith attempt to investigate potential drug use. In considering this third factor the purpose and flagrancy of the constitutional violation the Brown Court found that the constitutional violation there had a quality of purposefulness as it gave the appearance of having been calculated to cause surprise, fright, and confusion. Brown, 422 U.S. at 604. The Court noted that [t]he impropriety of the arrest was obvious. Id. Distinctly, any constitutional violation that occurred in the instant case gives the appearance of a good faith attempt to investigate Deputy Sanderson s suspicion that Petitioner was using drugs. Deputy Sanderson observed Petitioner s upper body shaking and noticed that his pupils were restricted. R. at 4. In his experience, such behaviors indicate drug use. Id. Unlike Brown, there is no indication here that Deputy Sanderson s actions were intended to surprise, frighten, or confuse Petitioner. Deputy Sanderson merely asked Petitioner if he would be willing to take a field sobriety test and explained the rationale underlying his requesting. R. at 5. 12

19 c. Petitioner Was Not Constructively Seized Without Reasonable Suspicion When Deputy Sanderson Returned to Petitioner s Vehicle to Request Consent to Search. Third, Petitioner claims that Deputy Sanderson violated his Fourth Amendment right not to be unreasonably seized by the Government during a twelve-second period between the end of the field sobriety test and the beginning of the vehicle search. Because this innocuous portion of Deputy Sanderson and Petitioner s interaction was not a seizure within the meaning of the Fourth Amendment, Petitioner s argument should be rejected. To invoke the protections of the Fourth Amendment, a complainant must have been seized by a state actor. United States v. Mendenhall, 446 U.S. 544, 553 (1980). Not every interaction between a state official and a citizen is a Fourth Amendment seizure. See, e.g., Mendenhall, 446 U.S. at 552 ( [N]ot all personal intercourse between policemen and citizens involves seizures of persons. (quoting Terry, 392 U.S. at 19 n.16)). The test for whether a citizen has been seized is well-settled: [A] a person has been seized within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Id. at 554 (footnote omitted); see also United States v. Drayton, 536 U.S. 194, 201 (2002) ( If a reasonable person would feel free to terminate the encounter, then he or she has not been seized. ); Florida v. Bostick, 501 U.S. 429, 434 (1991) ( So long as a reasonable person would feel free to disregard the police and go about his business, the encounter is consensual and no reasonable suspicion is required. (citation omitted)); California v. Hodari D., 499 U.S. 621, (1991) (citing cases applying the so-called Mendenhall test for whether a citizen has been seized). While acknowledging that per se rules are, for the most part, inappropriate in the Fourth Amendment context, Drayton, 536 U.S. at 202, the Court has identified certain police activities 13

20 that are not alone sufficient to constitute a Fourth Amendment seizure. A police officer may ask questions of an individual, ask to examine an individual s identification, and even request consent to conduct a search of an individual all without seizing the individual, provided that the police do not convey a message that compliance with their requests is required. Bostick, 501 U.S. at 435. The Court has made eminently clear that such consensual encounters with the police do not give rise to constitutional protection. The twelve-second encounter if it is even appropriate to call a situation where two individuals are walking away from each other an encounter between Deputy Sanderson and Petitioner was a consensual interaction, not a Fourth Amendment seizure. The alleged seizure here began with Deputy Sanderson telling Petitioner that he was free to go. R. at 5 (emphasis added). Certainly at that point, once Petitioner had been told that he could leave, a reasonable person in Petitioner s shoes would think that he was free to leave. See Mendenhall, 446 U.S. at 554. Deputy Sanderson and Petitioner then walked in opposite directions towards their respective cars in preparation to leave the scene. Nothing about Deputy Sanderson s behavior there suggested that Petitioner was compelled to participate in an encounter with him. Petitioner then actually got into the driver s seat of his vehicle not exactly the behavior of an arrestee. See R. at 8. Finally, Deputy Sanderson approached Petitioner s vehicle and asked Petitioner if he consented to a search of his vehicle. Deputy Sanderson did not suggest that Petitioner was required to exit the vehicle and permit Deputy Sanderson to conduct a search. Rather, Deputy Sanderson merely requested Petitioner s permission to search the car; permission that Petitioner was well within his ability to reject. See Bostick, 501 U.S. at 435. And there the alleged involuntary seizure ended. 14

21 Since the Court adopted the Mendenhall seizure test, the Fourth Amendment has never applied to encounters like Deputy Sanderson and Petitioner s. See, e.g., Mendenhall, 446 U.S. at , (holding strip search of citizen conducted in private DEA office was not a Fourth Amendment seizure). To hold that Deputy Sanderson seized Petitioner as they were walking away from each other would extend Fourth Amendment protection to anyone a police officer happens to walk past. That would put an untenable strain on police officers ability to interact with citizens and carry out their law enforcement function. See id. at 554 ( [C]haracterizing every street encounter between a citizen and the police as a seizure,... would impose wholly unrealistic restrictions upon a wide variety of legitimate law enforcement practices. ). The decision below should be affirmed. II. THE DISTRICT COURT PROPERLY DENIED PETITIONER S MOTION TO WITHDRAW THE GUILTY PLEA. The Sixth Amendment to the United States Constitution guarantees the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, (1984). The Sixth Amendment right to effective assistance of counsel applies to the plea-bargaining process. Missouri v. Frye, 132 S.Ct (2012); Lafler v. Cooper, 132 S.Ct. 1376, 1384 (2012). A defendant cannot successfully claim ineffective assistance of counsel unless his counsel s performance at trial was deficient, and prejudice resulted from the deficient performance. Strickland, 466 U.S. at 687. a. Brendanawicz s Performance Was Not Deficient When He Advised Petitioner of the Risk of Deportation of Accepting the Guilty Plea. Counsel s performance is deficient when it falls below an objective standard of reasonableness, considering all the circumstances. Strickland, 466 U.S. at 688. The standard of reasonableness is determined under prevailing professional norms. Id.; Padilla v. Kentucky,

22 U.S. 356 (2010). For example, in Padilla the Court found that American Bar Association, criminal defense and public defender organizations, authoritative treatises, and state and city bar publications each supported the conclusion that a criminal defense attorney must inform his client of the risk of deportation, if there is one, when accepting a plea deal. Padilla, 599 U.S. at 367. Courts indulge a strong presumption that counsel s performance is reasonable professional assistance. Id. at 689. Deficient performance includes failure to advise a defendant of the risk of deportation when accepting a guilty plea. Padilla, 559 U.S Specifically, [w]hen the law is not succinct and straightforward [omitted parenthesis], a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. Id., 559 U.S. at 369 (emphasis added). But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear. Id. For example, in Padilla, counsel s performance was deficient because he did not accurately advise the defendant of the high risk of deportation resulting from entering a guilty plea as a lawful permanent resident of the United States, from Honduras for more than 40 years, even though the weigh of prevailing professional norms supported the view that counsel must advise a non-citizen client of the correct risk of deportation. Id. at Counsel falsely asserted that Padilla did not have to worry about immigration status since he had been in the country so long. Id. at 359. The Court found persuasive that the relevant immigration statute was succinct, clear, and explicit in defining the deportation consequences for Padilla s conviction and that reading the removal statute would have shown counsel that [Padilla s] deportation was presumptively mandatory and that counsel s advice was incorrect. Id. at Further, this Court previously recognized [t]here can be little doubt that, as a general matter, alien 16

23 defendants considering whether to enter into a plea agreement are acutely aware of the immigration consequences of their convictions. I.N.S. v. St. Cyr, 533 U.S. 289, 322 (2001). Here, Brendanawicz s performance is not deficient because he adhered to prevailing professional norms while advising Petitioner about the guilty plea. Under Strickland, and further clarified under Padilla, prevailing professional norms from ABA guidebooks, public defender agencies, and treatises support the proposition that defense counsel must advise his non-citizen clients about the risk of deportation. Brendanawicz and Petitioner both agreed that Brendanawicz mentioned that strong risk of deportation at least during Petitioner s plea hearing, satisfying the professional guidelines. R. at 25, Unlike in Padilla where there was deficient performance due to counsel s false assurances that deportation would not result from conviction in the face of a clear law asserting deportation for convicted lawful permanent residents, here there was likely no deficient performance because counsel did not give false assurances of deportation and did say there was a strong risk of deportation. R. at 29. Further, the law requiring deportation in the present case is not clear because it uses the language deportable, and makes no allusion to mandatory or automatic deportation. The plain definition of deportable is subject to deportation. Deportable Definition, Merriam-Webster.com, (last visited Jan. 31, 2016). This definition suggests that deportation is not an absolute certainty because the Department of Justice must go through procedure, decide to actually deport Petitioner, and then proceed to actually deport him. Because the plain definition is unclear, the use of deportable makes the law unclear in regards to whether deportation is automatic. Further, some case law supports the above contention that the word deportable does not clarify the risk of deportation. See Com. v. Escobar, 70 A.3d 838 (Pa. Super. Ct. 2013) (where defendant s motion to withdraw a guilty plea 17

24 was denied even though his counsel did not say with certainty he would be deported after his drug conviction); Chacon v. State, 409 S.W.3d 529, 537 (Mo. Ct. App. 2013) (reasoning that saying deportation for a drug offense was very likely was sufficient performance); Popoca- Garcia v. State, 334 P.3d 824, 828 (Id. Ct. App. 2014) (noting that defendant knew he could be deported by accepting a guilty plea even though counsel only said deportation was most likely going to occur); State v. Shata, 364 Wis. 2d 63, 70 (Wis. 2015) (reasoning on similar facts to the present case). Because the law is unclear, Brendanawicz did not have a duty under Padilla to say with certainty that Petitioner would be deported. Padilla specifically says that counsel must give correct advice in regards to the risk of deportation but it does not say that counsel must use specific words whenever there is a risk of deportation. Correct advice under Padilla is that there may be a risk of deportation if convicted under a guilty plea. Unlike in Padilla where the correct advice was that deportation was mandatory because the law was succinct and straightforward, here the correct advice is less than deportation is mandatory because the use of the word deportable makes the applicable immigration statute not succinct and straightforward. A declaration that there is a strong risk of deportation falls well within the bounds of correct advice under Padilla. Additionally, unlike in Padilla where Padilla had no suspicion that he may be deported because counsel gave him false assurances, here Petitioner knew perfectly well that deportation was a strong possibility because he admitted that he knew during his plea hearing. R. at 25. Petitioner may argue that Brendanawicz did not research like the counsel in Padilla, so could not have known whether or not his recitation of the risks of deportation was correct. But here Brendanawicz did do research into the risk of deportation for conviction of a lawful 18

25 permanent resident. Specifically, he called several federal prosecutors who did that type of law in question and all of them said that Petitioner may, not must, be deported if convicted. R. at Federal prosecutors are necessary actors to actually deporting a deportable convict and, therefore, are one of the best resources to determine if deportable means mandatory deportation or not, which in this case it does not. Brendanawicz also asked several different prosecutors, each giving the same answer about deportation under the law. ABA manuals and legal guidebooks are a persuasive manner to discover prevailing professional norms, but asking prosecutors that use this immigration law to prosecute every day are a better source to discover this type of discretionary professional norm. Further, in Padilla, the important issue was that counsel gave the wrong answer to the question of risk of deportation resulting from his complete lack of any kind of research. Ultimately, whether or not Brendanawicz sufficiently researched to discover prevailing professional norms is irrelevant because Brendanawicz advised Petitioner of the correct answer in regards to the risk of deportation even if Brendanawicz was not certain about the actual risk of deportation. It would be a misreading of Padilla and the applicable guidebooks to infer a bright line rule that counsel must advise any risk of deportation as mandatory or automatic because to do so would create a rule that in every case where deportation may result from a guilty plea counsel must say deportation is mandatory. Hypothetical situations may be imagined where an even more unclear case than the present case would require counsel to state that deportation would be automatic under this formulation of Padilla. For example, if a law listed deportation as one of a few potential criminal punishments for an offense, whether deportation would be mandatory or not would be unclear and under the bright line rule counsel would be bound to advise the defendant that deportation was mandatory. Padilla only holds that counsel advice correctly 19

26 what the law says about deportation, not that he must use specific words whenever there is a risk of deportation. b. Brendanawicz s Performance Did Not Result in Prejudice. Even if counsel s performance was deficient, an ineffective assistance of counsel claim fails if the deficient performance was not prejudicial to the trial. Strickland, 466 U.S. at 691. To show prejudice, the defendant must prove that there is a reasonable probability that, but for counsel s deficient performance, the result of the proceeding would have been different. Id. at 694; see Frye, 132 S.Ct A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 691. For example, in Frye the defendant could prove that deficient performance resulting from a plea deal for a misdemeanor and 90 days in prison that counsel never offered him was prejudicial because he would have taken the plea deal if he had known about it due to the fact that he plead guilty to the more serious offense of a felony on the same charge without a plea deal. 132 S.Ct. at 1404, This Court has suggested before that accepting a guilty plea without full knowledge of the consequences of the plea is not per se prejudicial. Hill v. Lockhart, 474 U.S. 52 (1985). The Court stated that the test for prejudice should be made objectively without regard to the idiosyncrasies of the particular decision maker. Id. at (citing Strickland, 466 U.S. at 695). The ineffective assistance of counsel claim would be defeated on the issue of prejudice because Brendanawicz s advice as to the risk of deportation was not prejudicial. Here, there is not a reasonably possibility that the trial would have come out differently if Petitioner had been advised that deportation was mandatory. Whether Brendanawicz gave Petitioner different advice or Petitioner entered a guilt plea is irrelevant because the outcome of the trial would still have 20

27 most likely been conviction due to the fact that Brendanawicz thought there was no viable defense to the drug possession charge, Brendanwicz advised Petitioner that there was no viable defense, and Petitioner would likely be convicted after a fair trial. R. at 29. While it is not an absolute certainty that Petitioner would have been convicted, the standard for prejudice is a reasonable possibility and there is not a reasonable possibility that the trial would have ended in a different judgment than conviction because it is not probable that entering a plea of not guilty would undermine confidence in the outcome of conviction. Further, Petitioner plea has altogether no bearing on the probability of conviction because the plea changes nothing about the substance of the trial. Even if the outcome of the plea hearing were at issue, Brendanawicz s advice would not be prejudicial because an objective person would still have accepted the plea deal. Unlike in Frye where there was a reasonable probability that he would have taken the plea deal because the defendant plead to a more serious charge, here there is not a reasonable probability that Petitioner would not have taken the plea deal because the bare assertion that he would never have taken the plea deal if he knew deportation was mandatory and that he had [n]o family, no job, nothing back in Venezuela are insufficient evidence to meet a standard of reasonable probability. R. at 30. Further, Petitioner never would have known deportation was mandatory because Brendanawicz did not know and could not have told Petitioner deportation was mandatory due to the unclear nature of the law. Supra, section II, a, p. 17. Further, to demonstrate that Petitioner would not have accepted the plea deal, he must convince the court that his decision to reject the plea deal would have been rational under the circumstances. Cf. Roe v. Flores Ortega, 528 U.S. 470, 480, 486 (2000) (reasoning that counsel s deficient performance of not correctly advising the defendant of the appeal consequences of accepting a 21

28 guilty plea was not sufficiently prejudicial to warrant withdrawal of the guilty plea). In the present case, an objective person would have accepted the plea deal because there was no other rational alternative. In almost every case, plea deals reduce the potential sentence relative to conviction and going to trial is only rational when the chance of success at trial and the benefit of success at trial outweigh the risk of losing at trial and the benefit of the plea deal. Here, Petitioner s alternative to accepting the plea deal would have been to go to trial and almost certainly be convicted because of the lack of a viable defense. R. at 29. The alternative is not rational because it would put Petitioner in the exact same position of deportability as if he has taken the plea deal but in an overall worse situation because his jail sentence would probably have been greater. Indeed, Petitioner would probably be less likely to be actually deported, which was his primary concern, R. at 24, 30, if he took the deal plea because a D.O.J. Immigration and Naturalization Service judge may be more sympathetic to a deportable alien who demonstrated remorse and understanding of his wrongdoing by taking a plea deal and who could possibly receive a positive recommendation from prosecutors to the judge by taking the plea deal. Petitioner could argue that an objective person under his circumstances, of having no life back in Venezuela to return to after deportation and of asserting that he did not want to be deported, would never have taken the plea deal if he knew he would be deported. But that argument fails because those circumstances are not sufficient to make an objective person rationally choose to reject the plea deal. Petitioner could never have actually know he would be deported because the law was unclear and Brendanawicz did not know deportation would be mandatory. Merely stating that he would never have accepted a plea deal if he had known the circumstances were true is not sufficient evidence to show that any objective person would have 22

29 rejected the plea deal. Asserting that he have no life back in Venezuela is also not sufficient evidence to raise a reasonable probability that he would not accept the plea deal because the bare assertion does not possess the same level of certainty as the defendant s acceptance of a more serious charge than the plea deal like in Padilla. c. Holding that Counsel Should Have Advised Petitioner that Deportation Was Mandatory for Accepting the Guilty Plea in this Case Would Be Unfair And Flood the Courts With Frivolous Lawsuits. It would be unfair to grant Petitioner s motion to withdraw his guilty plea because he had the opportunity for a fair trial but chose not to exercise that right. Strickland only guarantees the right to a fair trial. 466 U.S. at 687. Petitioner chose not to exercise that right by taking the plea deal. He knew the risks involved in taking the plea deal because he was told about the risks by Brendanawicz and the court and confirmed his understanding of the strong probability of deportation once convicted. R. at 25. Further, it would be unfair to allow Petitioner to have a second shot at a case after he already waived his right to a fair trial. Allowing Petitioner a second trial on an already decided issue would place a burden on the judicial system and disturbs the long-standing principle that the right to a fair trial affords Petitioner the opportunity to a fair trial. Ruling for the appellant in this case also has the potential to flood the courts with frivolous lawsuits and greatly reduce judicial efficiency. Under a bright line rule that counsel must always say that deportation is mandatory if there is any risk of deportation, every case where there are deportation consequences would have an almost automatic claim of ineffective assistance of counsel. Under a ruling that counsel must say deportation is mandatory on these facts, the number of ineffective assistance of counsel claims brought may even be greater than if there was a bright line rule because the evidentiary standard would be very low. Every 23