In the 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 THE RESPONDENT Team 2 Counsel for Respondent

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 re-approached 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... iv CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED... viii STATEMENT OF THE CASE...1 SUMMARY OF THE ARGUMENT...3 ARGUMENT...3 I. Petitioner's Motion to Suppress Was Properly Denied Because He Provided Untainted Consent, Even When Consent Was Superfluous...3 a. Petitioner s Motion to Suppress Was Properly Denied Because Petitioner Provided Voluntary, Untainted Consent to the Search of His Vehicle...4 i. Petitioner s Consent Was Voluntary Under the Totality of the Circumstances Because No Indicia of Coercion Exist...4 ii. Petitioner s Voluntary Consent Was Not Tainted Because the Field Sobriety Test Was Lawful...6 b. Even If the Field Sobriety Test Was Unlawful, The Test Was Too Far Attenuated to Taint Petitioner s Consent...11 c. Even If Petitioner s Consent Was Tainted, Officer Sanderson Had Probable Cause to Search the Vehicle...14 II. The District Court Properly Denied Petitioner s Motion to Withdraw His Guilty Plea Because He Cannot Demonstrate Either That His Counsel Performed ii

4 Deficiently or That He Was Prejudiced as a Result of His Counsel s Performance...16 a. Attorney Brendanawicz Delivered Reasonable Professional Assistance When He Advised Petitioner That His Guilty Plea Carried a Strong Risk of Deportation...18 b. Petitioner Was Not Prejudiced by Attorney Brendanawicz s Performance Because It Would Not Have Been Rational Under the Circumstances for Petitioner to Reject the Plea Agreement Offered to Him by the State of Eagleton...24 CONCLUSION...30 iii

5 TABLE OF AUTHORITIES CASES PAGE Arizona v. Gant, 556 U.S. 332 (2009)...14 Brown v. Illinois, 422 U.S. 590, 604 (1975)...6, 11, 13 Candelario v. State, 2012 R.I. Super. LEXIS 180 (R.I. Super. Ct. 2012)...23 Chacon v. State, 409 S.W.3d 529 (Mo. Ct. App. 2013)...24 Commonwealth v. Escobar, 70 A.3d 838 (Pa. Super. Ct. 2013)...21 Cun-Lara v. State, 273 P.3d 1227 (Haw. Ct. App. 2012)...21 Denisyuk v. State, 30 A.3d 914 (Md. 2011)...26 Dunaway v. New York, 442 U.S. 200 (1979)...12 Florida v. Bostick, 501 U.S. 429 (1991) Fong Yue Ting v. United States, 149 U.S. 698 (1893)...19 Henry v. United States, 361 U.S. 98 (1959)...14 Herring v. United States, 555 U.S. 135 (2009)...14 Hill v. Lockhart, 474 U.S. 52 (1985)...17 Illinois v. Wardlow, 528 U.S. 119 (2000)...10 Katz v. United States, 389 U.S. 347 (1967)...4 Lafler v. Cooper, 132 S. Ct (2012)...25 Myers v. State, 839 N.E.2d 1146 (Ind. 2005) Nardone v. United States, 308 U.S. 338 (1939)...6 Navarette v. California, 134 S. Ct (2014)...8 New York v. Harris, 495 U.S. 14 (1990)...11, 13 Oregon v. Elstad, 470 U.S. 298 (1985)...4, 12 iv

6 Ornelas v. United States, 517 U.S. 690 (1996)...4 Padilla v. Kentucky, 559 U.S. 356 (2010) People v. Benedict, 82 Cal. Rptr. 759 (Cal. Ct. App. 1969)...15 Ramirez v. City of Buena Park, 560 F.3d 1012 (9th Cir. 2009) , Roe v. Flores-Ortega, 528 U.S. 470 (2000)...25 Rogala v. D.C., 161 F.3d 44 (D.C. Cir. 1998)...8 Schneckloth v. Bustamonte, 412 U.S. 218 (1973) State v. Folkert, No. A , 2013 WL (Minn. Ct. App. Feb. 11, 2013)...9 State v. Harrison, 190 P.3d 1146 (N.M. Ct. App. 2008), aff'd, 238 P.3d 869 (N.M. 2010)...7 State v. Hegstrom, 543 N.W.2d 698 (Minn. Ct. App. 1996) State v. Ingrahm, No. 1 CA-CR , 2011 WL (Ariz. Ct. App. Dec. 1, 2011)...9 State v. Lamme, 563 A.2d 1372 (Conn. App. Ct. 1989), aff d, 579 A.2d 484 (Conn. 1990)...8 State v. Little, 468 A.2d 615 (Me. 1983)...8 State v. Ramos, 942 P.2d 841 (Or. Ct. App. 1997)...7 State v. Shata, 868 N.W.2d 93 (Wis. 2015) , 24 State v. Superior Court In & For Cochise Cnty., 718 P.2d 171 (Ariz. 1986)...8 State v. Wood, 662 A.2d 919 (Me. 1995)...8 State v. Wyatt, 687 P.2d 544 (Haw. 1984)...8 Strickland v. Washington, 466 U.S. 668 (1984) , 23-24, 26, 30 Taylor v. Alabama, 457 U.S. 687 (1982)...12 Terry v. Ohio, 392 U.S. 1 (1968)...8 Trapnell v. United States, 725 F.2d 149 (2d Cir. 1983)...19 United States v. Apeland, 238 F. App x 272 (9th Cir. 2007) v

7 United States v. Arvizu, 534 U.S. 266 (2002)...9 United States v. Belt, 609 F. App x 745 (4th Cir.) cert. denied, 126 S. Ct. 274 (2015) United States v. Cortez, 449 U.S. 411 (1981)...9 United States v. Donnelly, 475 F.3d 946 (8th Cir. 2007)...10 United States v. Green, 111 F.3d 515 (7th Cir. 1997) United States v. Hanlon, 401 F.3d 926 (8th Cir. 2005)...10 United States v. Huff, 2015 WL (6th Cir. Nov. 4, 2015)...11 United States v. Jolly, 368 F. App x 17 (11th Cir. 2010)...15 United States v. Kayode, 777 F.3d 719 (5th Cir. 2014) United States v. Ledesma, 447 F.3d 1307 (10th Cir. 2006)...15 United States v. Maher, 454 F.3d 13 (1st Cir. 2006)...8 United States v. Mayo, 627 F.3d 709 (8th Cir. 2010)...15 United States v. Robinson, 932 F. Supp (D.N.M.1996)...12 United States v. Ross, 456 U.S. 798 (1982)...14 United States v. Santos, 403 F.3d 1120, 1127 (10th Cir. 2006)...15 United States v. Shaw, 2004 U.S. Dist. LEXIS (E.D. Pa. 2004)...26 United States v. Sokolow, 490 U.S. 1 (1989)...8 United States v. Soto, 988 F.2d 1548 (10th Cir. 1993) United States v. Townsend, 305 F.3d 537 (6th Cir. 2002)...8 United States v. Watson, 703 F.3d 684 (4th Cir. 2013) United States v. Wisniewski, 192 F. App x 749 (10th Cir. 2006)...9 Wong Sun v. United States, 371 U.S. 471 (1963)...11 vi

8 CONSTITUTIONAL PROVISIONS PAGE U.S. Const. amend. IV...4 U.S. Const. amend. VI...17 STATUTORY PROVISIONS PAGE 8 U.S.C. 1227(a)(2)(B)(i)... 19, 21, Eg. Stat (b)...7 Eg. Stat. 841(a)(1)... 3, 18-19, 22 vii

9 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The Fourth Amendment to the United States Constitution provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. The Sixth Amendment to the United States Constitution provides: 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 defence. 8 U.S.C. 1227(a)(2)(B)(i) provides: Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens: 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. Eagleton Statute provides: (a) Every vehicle upon a highway within this State shall be equipped with lighted headlamps and rear lamps as required for different classes of vehicles: (1) During the period from sunset to sunrise, (2) When there is not sufficient light to render clearly discernible any person on the highway at a distance of 400 feet ahead.... (b) viii

10 Every self-propelled motor vehicle shall be equipped with at least two headlamps and two tail lamps, all in good operating condition with at least one on each side of the front and rear of the motor vehicle. Eagleton Statute 841(a)(1) provides: It shall be unlawful for any person to knowingly or intentionally (1) Manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance. ix

11 STATEMENT OF THE CASE Officer David Sanderson spotted Tomas Haverford ( Petitioner ) driving with a burnt out headlight, so he initiated a routine traffic stop around 6:10 pm. R. at 6: After Officer Sanderson explained the purpose of the stop, Petitioner attempted to avoid the interaction, asking Can I pull in the parking lot? I live right there. I just want to go to bed. R. at 11:4-6. Officer Sanderson immediately recognized Petitioner s extreme nervousness, his shaking hands, his sleepiness, and his pupils constricted to two or three millimeters. R. at 11:8-10. Based on these factors, Officer Sanderson decided to ask Petitioner if he would complete a field sobriety test. R. at 11: As Officer Sanderson began to ask Petitioner if he would take such a test, Petitioner asked to go home once more. R. at 12: Officer Sanderson stated that Petitioner appeared nervous, and Petitioner repeated that he just want[ed] to go to sleep. R. at 12: Finally, Officer Sanderson was able to ask Petitioner if he would be willing to attempt a field sobriety test, and Petitioner agreed. R. at 12: Officer Sanderson confirmed Petitioner s willingness by asking a second time, and Petitioner, once again, agreed. R. at 12:36-13:37. Petitioner did not fail the field sobriety test, so Officer Sanderson told Petitioner he was free to go. R. at 14:66. Petitioner responded by telling Officer Sanderson to have a good day. R. at 14:67. The two walked away from each other, and Petitioner got into his vehicle to drive away. R. at 8:22-9:2. It was at this time roughly twelve seconds later that Officer Sanderson decided to ask if Petitioner would consent to a vehicle search. R. at 5: As he did with the sobriety test, Officer Sanderson asked Petitioner if he could search Petitioner s vehicle and, when Petitioner agreed, Officer Sanderson confirmed that it was fine, to which Petitioner replied Yes, sir. R. at 14:

12 During the search of the vehicle, Officer Sanderson found syringes, muriatic acid, a mason jar with clear liquid, rubber gloves, coffee filters, fuel for a heat source, a glass bottle with liquid, and medication canisters. R. at 5:19-6:2. In one of the medication canisters was a plastic bag with a sandy substance that tested positive for methamphetamine. R. at 5:22-6:7. All together, Officer Sanderson discovered paraphernalia used to manufacture methamphetamine and 11.5 grams of methamphetamine. R. at 32. During Petitioner s criminal proceedings, he was represented by Attorney Mark Brendanawicz. R. at 23. They appeared together at the first plea hearing, and Attorney Brendanawicz asked for an adjournment of trial and received a postponement. R. at 24: After Attorney Brendanawicz informed Petitioner that there was a strong possibility he would be deported if convicted, R. at 25:12, Petitioner became concerned about the consequences of accepting a plea deal, R. at 24: At the second plea hearing, the judge informed Petitioner that upon a conviction [he] may be deported or denied admission. R. at 25: Despite this, Petitioner pleaded guilty. R. at 25:16. The judge immediately confirmed that Petitioner understood [he] may be deported, R. at 25:17, and Petitioner affirmed, R. at 25:18. Attorney Brendanawicz attempted to defer the prosecution of Petitioner. R. at 26:4-5. He also asked for the minimum sentence and probation instead of imprisonment. R. at 26:6-8. Further, Attorney Brendanawicz asked that the record be expunged after Petitioner served probation so that Petitioner would not be deported. R. at 26:8-9. The judge sentenced Petitioner to ten years in prison without expungement. R. at 26: This case arises out of Petitioner s claims that Officer Sanderson illegally searched his vehicle and Attorney Brenanawicz failed to provide constitutionally sufficient representation. 2

13 SUMMARY OF THE ARGUMENT Petitioner, in violation of Eagleton Statute 841(a)(1), possessed methamphetamine and the paraphernalia for manufacturing more of the controlled substance. This evidence must be admitted because Officer Sanderson s discovery of these materials in Petitioner s car was the direct result of lawful police conduct. Petitioner voluntarily consented to the search of his vehicle; that consent was valid and untainted by any prior unlawful police action, since the initial traffic stop and the extension of the traffic stop were both lawful, and Petitioner s consent was too far attenuated from the traffic stop to possibly be tainted by it; and Officer Sanderson had probable cause to search Petitioner s vehicle, which obviated the need for Petitioner s consent anyway. Accordingly, this Court should deny Petitioner s motion to suppress. Additionally, Petitioner s guilty plea must be preserved. Attorney Brendanawicz acted well within the range of reasonable professional assistance when he advised Petitioner that there was a strong risk that he would be deported from this country. Petitioner also cannot show that he was prejudiced by Attorney Brendanawicz s representation, because it would not have been rational under the circumstances for Petitioner to reject the State s plea agreement. Accordingly, this Court should also deny Petitioner s motion to withdraw his guilty plea. ARGUMENT I. Petitioner's Motion to Suppress Was Properly Denied Because He Provided Untainted Consent, Even When Consent Was Superfluous During his search of Petitioner s vehicle, Officer Sanderson preserved in a multitude of ways Petitioner s constitutional rights. Officer Sanderson obtained consent to perform a search of Petitioner s vehicle, and the consent was not tainted by any unlawful action. The consent to search was untainted because the initial field sobriety test was lawful, both because Officer 3

14 Sanderson had reasonable suspicion to perform the test and because he obtained Petitioner s consent to perform it. Further, Petitioner s consent to Officer Sanderson s search of his vehicle was too far attenuated from the field sobriety test to have been tainted by it, even if Officer Sanderson had failed to get Petitioner s consent to perform the test and did not have reasonable suspicion. Lastly, even if Petitioner s consent is not valid, Officer Sanderson had probable cause to search Petitioner s vehicle, so the search was lawful independently of Petitioner s consent. This Court reviews similar issues under a de novo standard. Ornelas v. United States, 517 U.S. 690, 699 (1996) (holding that as a general matter reasonable suspicion and probable cause issues should be reviewed de novo). A. Petitioner s Motion to Suppress Was Properly Denied Because Petitioner Provided Voluntary, Untainted Consent to the Search of His Vehicle 1. Petitioner s Consent Was Voluntary Under the Totality of the Circumstances Because No Indicia of Coercion Exist Prior to searching Petitioner s vehicle, Officer Sanderson obtained voluntary, untainted consent, protecting Petitioner s constitutional rights. The Fourth Amendment protects individuals from unreasonable searches and seizures. U.S. CONST. amend. IV. An officer that obtains voluntary consent to a search, however, has ensured full compliance with the Fourth Amendment. Katz v. United States, 389 U.S. 347, 358 n.22 (1967). Courts must determine if the consent was given voluntarily as a threshold requirement. Oregon v. Elstad, 470 U.S. 298, 306 (1985). Voluntariness a question of fact is determined from the totality of all the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973). This Court upheld consent to a vehicle search as voluntary in Schneckloth v. Bustamonte, 412 U.S. 218, 275 (1973). The officers exerted control over the passengers by asking them to 4

15 step out of the vehicle prior to the search. Id. at 220. When the officer asked to search the vehicle, one of the passengers only replied, Sure, go ahead. Id. at 220. The state also failed to prove that the passengers affirmatively knew their right to refuse to provide consent. Id. at 234. Despite these facts, the Court upheld the district court s finding that the consent was given voluntarily, overruling the circuit court. Id. at 249. Additionally, if a party is not constructively seized if a reasonable party would feel free to leave officers need not have reasonable suspicion before asking to perform a search. Florida v. Bostick, 501 U.S. 429, 434 (1991). In Bostick, the Supreme Court of Florida held that a man was constructively seized when police questioned him on a bus, id. at 431, but this Court overturned that ruling, finding that the literally confining nature of the bus did not automatically mean a seizure occurred. Id. at 436. This case involves no indicia of coerciveness. In Schneckloth, the officer asked the passengers to step out of the vehicle before searching the vehicle, an indication that the officer was in a position of power. In the instant case, Petitioner exited his vehicle under his own volition to speak with Officer Sanderson prior to consenting to the search. R. at 9:1-11. Schneckloth also clarifies that defendants need not affirmatively know their right to refuse consent, but two facts suggest Petitioner understood that right, further solidifying the voluntariness of his consent. First, Petitioner chose to avoid answering Officer Sanderson s questions multiple times during the stop. 1 His avoidance of these questions indicates his understanding of his rights. Second, Officer Sanderson asked for and confirmed that he had 1 When asked to produce his registration, Petitioner responded with his desire to go to bed. R. at 11; lines 4-6. When Officer Sanderson mentioned that he had a question for Petitioner, Petitioner responded by saying Can I go home? R. at 12:

16 Petitioner s consent each time it was required. 2 Officer Sanderson s requests for and verifications of Petitioner s consent informed Petitioner of his right to decline the search. Lastly and most importantly Petitioner s consent occurred after he was already told he was free to go. R. at 14: In Schneckloth, the court found the consent to be voluntary despite the fact that the officer asked to search the vehicle while the stop was still occurring; here, the stop had already ended. Since being literally confined to a small space along with police officers did not amount to a constructive seizure in Bostick, Petitioner could not have been constructively seized when he was both told he could and was physically able to leave. Petitioner can point to no facts that would suggest his consent to the search was coerced, and several key facts suggest that Petitioner s consent was wholly voluntary. 2. Petitioner s Voluntary Consent Was Not Tainted Because the Field Sobriety Test Was Lawful Officer Sanderson s extension of the stop to perform the field sobriety test was fully lawful, and therefore could not have tainted Petitioner s voluntary consent. The voluntary nature of the consent is only the first question a court must ask in determining whether consent should stand. Brown v. Illinois, 422 U.S. 590, 604 (1975) ( The voluntariness of the statement is a threshold requirement. ). Courts then determine if there was any unlawful action by the police officer that might taint the consent. See, e.g., Nardone v. United States, 308 U.S. 338, When Petitioner agreed to the field sobriety test, Officer Sanderson confirmed by asking Is that okay? R. at 12; line After Petitioner stated that Officer Sanderson could [g]o ahead with the search of his vehicle, Officer Sanderson confirmed by asking, That s fine? R. at 14:

17 (1939). Therefore, if the consent was voluntary, the lack of any preceding unlawful action by the police is sufficient to prove the consented-to search was lawful because there could be no taint. As noted, voluntary consent resolves any Fourth Amendment issues, 3 and Petitioner consented to the field sobriety tests. Because consent is an exception to Fourth Amendment search limitations, officers do not need reasonable suspicion to perform field sobriety tests when they receive voluntary consent. While this Court has not ruled on this issue, several state courts have upheld voluntary field sobriety tests when no reasonable suspicion existed. See State v. Ramos, 942 P.2d 841, (Or. Ct. App. 1997) (upholding a field sobriety test not based on reasonable suspicion because the officer received consent); State v. Harrison, 190 P.3d 1146, 1149 (N.M. Ct. App. 2008), aff'd, 238 P.3d 869 (N.M. 2010) (same). Petitioner provided voluntary consent to the field sobriety test, which eliminates the possibility that Petitioner s later consent to the vehicle search was tainted by unlawfulness. Officer Sanderson obtained Petitioner s consent when Petitioner agreed to the test after Officer Sanderson asked, Would you be willing to attempt a field sobriety test to make sure you re okay? R. at 12: Officer Sanderson confirmed Petitioner s consent to the test by asking 3 For the purposes of this brief, it is assumed that a field sobriety test would be defined as a search under the Fourth Amendment even though this Court has not officially held that to be the case. It seems likely this Court would determine the test to be a search. See, e.g., Skinner v. Ry. Labor Executives Ass n, 489 U.S. 602 (1989) (holding breath analysis fell under Fourth Amendment searches). If this Court so finds, the lawfulness of Officer Sanderson s actions would turn on whether Petitioner provided untainted, voluntary consent to the field sobriety test. If this Court held that a field sobriety test did not reach the level of a Fourth Amendment search, the lawfulness of Officer Sanderson s actions would be guaranteed. 7

18 Petitioner once more, and Petitioner agreed to the test a second time. R. at 12:36-13:37. No unlawful activity that would taint the consent occurred prior to Petitioner s consent to the field sobriety test because he was lawfully stopped for violating Eagleton Statute , which requires motor vehicles to be equipped with two, working headlamps. Eg. Stat (b). Even if Petitioner s consent fails to establish the legitimacy of the field sobriety test, Officer Sanderson had reasonable suspicion to perform the test. This Court has not yet determined what quantum of suspicion is necessary to require a field sobriety test. United States v. Maher, 454 F.3d 13, 18 n.5 (1st Cir. 2006). This Court should adopt a reasonable suspicion standard because this is the type of incident for which the reasonable suspicion standard was created. If an officer has reasonable suspicion that criminal activity may be afoot, the officer can perform a brief detention. United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)). Because impaired driving constitutes criminal activity, reasonable suspicion should be the standard that officers must meet to require a driver to take a field sobriety test. This holding would be in line with this Court s recent application of the reasonable suspicion standard in a case involving an officer that stopped an impaired driver. See Navarette v. California, 134 S. Ct. 1683, 1691 (2014). Two circuit courts have explicitly applied the reasonable suspicion standard to field sobriety tests. United States v. Townsend, 305 F.3d 537, 541 (6th Cir. 2002); Rogala v. D.C., 161 F.3d 44, 52 (D.C. Cir. 1998). Several state courts have come to this conclusion, too. See, e.g., State v. Little, 468 A.2d 615, 618 (Me. 1983); State v. Wyatt, 687 P.2d 544, (Haw. 1984); State v. Lamme, 563 A.2d 1372, (Conn. App. Ct. 1989), aff d, 579 A.2d 484 (Conn. 1990); State v. Superior Court In & For Cochise Cnty., 718 P.2d 171, 176 (Ariz. 1986); State v. Wood, 662 A.2d 919, 921 (Me. 1995); Under the reasonable suspicion standard, an officer must have only a particularized and objective basis 8

19 for suspicion of criminal activity, and reviewing courts should look at the totality of the circumstances to judge the officer s conduct. United States v. Cortez, 449 U.S. 411, (1981). The totality of the circumstances allows officers to draw on their own experiences and specialized training. United States v. Arvizu, 534 U.S. 266, 273 (2002). Several illegal drugs constrict pupils. 4 Many courts have found constricted or dilated pupils to be a key factor in creating reasonable suspicion during a routine traffic stop. In State v. Ingrahm, No. 1 CA-CR , 2011 WL (Ariz. Ct. App. Dec. 1, 2011), police officers searched a man with constricted pupils claiming to be in a neighborhood for the purpose of hanging out [and] listening to music showing some signs of confusion. Id. at *2. The court determined that the officers had reasonable suspicion to stop him. Id. at *4. Similarly, in Myers v. State, 839 N.E.2d 1146 (Ind. 2005), the court found that police officers had reasonable suspicion to search a man s vehicle because the man had shaky hands, appeared nervous, and had constricted pupils. Id. at 1148; see also State v. Folkert, No. A , 2013 WL , at *6 (Minn. Ct. App. Feb. 11, 2013). Uncontrollable sleepiness has functioned as a relevant factor when determining if an officer had reasonable suspicion. In Ramirez v. City of Buena Park, 560 F.3d 1012 (9th Cir. 2009), the officer s reasonable suspicion was fully based on his belief that the detainee suffered from [u]ncontrollable sleepiness. Id. at See also United States v. Wisniewski, 192 F. App x 749, (10th Cir. 2006) (utilizing sleepiness as a factor in determining the officer had reasonable suspicion). 4 See, e.g., Los Angeles Police Department, Drug Categories, (last visited January 29, 2016). 9

20 An officer may also partially base reasonable suspicion on the detainee s physical shakiness. Even though it was cold outside, the Tenth Circuit found that an officer had reasonable suspicion when the detainee had been inconsistent, had shaky hands, evaded questioning, and appeared nervous. United States v. Soto, 988 F.2d 1548, 1556 (10th Cir. 1993); see also United States v. Hanlon, 401 F.3d 926, 929 (8th Cir. 2005) (finding reasonable suspicion when the detainee was inconsistent, extremely nervous, shook profusely, and refused to make eye contact). Nervous, evasive behavior is another pertinent factor in determining reasonable suspicion.... Illinois v. Wardlow, 528 U.S. 119, 124 (2000). While most Circuits have found nervousness insufficient by itself to create reasonable suspicion, many courts have held that extreme nervousness in conjunction with other factors helps establish reasonable suspicion. In United States v. Apeland, 238 F. App x 272 (9th Cir. 2007), the court found the officer had reasonable suspicion based on the defendant s extreme nervousness and the pronounced smell of an air freshener in the vehicle. Id. at 274; see also United States v. Donnelly, 475 F.3d 946, (8th Cir. 2007) (including nervousness in a list of factors that formed the basis for reasonable suspicion). Petitioner exhibited several signs of illicit behavior, and, given the totality of the circumstances, Officer Sanderson had reasonable suspicion to require Petitioner to perform field sobriety tests. First, Officer Sanderson observed Petitioner s pupils to be constricted to only sixty or seventy percent of an average pupil s size. R. at 8:7 12. In Myers, reasonable suspicion was found because the detainee exhibited constricted pupils, shakiness, and nervousness all traits Petitioner exhibited. Second, Petitioner also exhibited uncontrollable sleepiness. 5 In Ramirez, the 5 On two separate occasions, Petitioner expressed his desire to go to sleep. R. at 11:6; 12:

21 officer s observations all concerned traits associated with sleepiness, which provided enough evidence for reasonable suspicion; here, Petitioner exhibited uncontrollable sleepiness in conjunction with several other traits associated with illegal drug use. Third, Petitioner exhibited shakiness, a trait that helped establish reasonable suspicion when combined with nervousness and evasion in Soto. Fourth, Petitioner s extreme nervousness compounds the other factors as it did in Apeland. Together, these factors indicate that Officer Sanderson had reasonable suspicion to subject Petitioner to the field sobriety tests. Thus, even if the consent Petitioner provided was insufficient, the field sobriety test was lawful. B. Even If the Field Sobriety Test Was Unlawful, The Test Was Too Far Attenuated to Taint Petitioner s Consent Even an unlawful field sobriety test would not end a court s analysis because the field sobriety test was too far attenuated to taint Petitioner s consent. While unlawful activity may justify the suppression of evidence, the evidence may still be admitted if the government can prove the evidence was not fruit of the unlawful activity. Wong Sun v. United States, 371 U.S. 471, (1963). As noted, voluntariness is a threshold requirement that must first be proven; attenuation analysis is only appropriate where, as a threshold matter, courts determine that the challenged evidence is in some sense the product of illegal government activity. New York v. Harris, 495 U.S. 14, 14 (1990). Once that threshold requirement is met, a court must look to three causal connections factors when determining if the consent was tainted by unlawful activity: temporal proximity, intervening circumstances, and the purpose and flagrancy of the official misconduct. Brown v. Illinois, 422 U.S. 590, (1975). The temporal proximity of the consent to the unlawful activity is not a weighty factor. United States v. Huff, 2015 WL , at *9 (6th Cir. Nov. 4, 2015). In fact, the same length 11

22 of time can be ambiguous as to whether it helps or harms a party in demonstrating attenuation. Dunaway v. New York, 442 U.S. 200, 220 (1979) (Stevens, J., concurring) ( The temporal relationship may be an ambiguous factor. ); see also United States v. Robinson, 932 F. Supp. 1271, 1280 (D.N.M. 1996) ( [D]etermining whether the length of time separating evidence or a statement from a Fourth Amendment violation tends to purge the taint of the illegality is a fruitless endeavor. ). In United States v. Watson, 703 F.3d 684 (4th Cir. 2013), the court found the officers detainment of the accused for three hours was inherently coercive but did not indicate that flagrant police misconduct occurred. Id. at 697. In a remarkably similar case to the present one, the Wisconsin Supreme Court found that sixteen seconds was not too close in time to the unlawful activity because the officer told the detainee he was allowed to leave. State v. Hogan, 364 Wis. 2d 167, 179 (2015). The presence of intervening circumstances is the most important factor a court should look to in order to determine if unlawful activity taints voluntary consent. See Taylor v. Alabama, 457 U.S. 687, 690 (1982) (holding evidence must be excluded unless intervening events break the causal connection ); Oregon v. Elstad, 470 U.S. 298, (1985) (Brennan, J. dissenting) ( The only proper inquiry is whether a meaningful intervening event actually occurred.... ). Many situations can function as an intervening circumstance. In a recent case, a government agent unlawfully entered a private residence, but the appellant s decision to engage the government agent in a conversation created an attenuation between the unlawful entry and the eventual consent. United States v. Belt, 609 F. App x 745, 749 (4th Cir.), cert. denied, 126 S. Ct. 274 (2015). One court has even found that the voluntary act of consenting can act as an intervening circumstance in and of itself. United States v. Green, 111 F.3d 515, 522 (7th Cir. 1997). 12

23 The purpose and flagrancy of the officer s conduct is also particularly important. Brown v. Illinois, 422 U.S. 590, 604 (1975). Courts should look at whether the police officer intentionally violates what he knows to be a constitutional command or whether the unlawfulness was the result of a good-faith misunderstanding. New York v. Harris, 495 U.S. 14, (1990). In Harris, this Court upheld the denial of a motion to suppress evidence that was gathered while the speaker was unlawfully detained because the statement was not a product of being in unlawful custody. Id. at 19. The statement was allowed into evidence despite the uncontroverted fact that the officers were aware of the Fourth Amendment prohibitions on their actions and decided to violate those rights so they could get evidence that they could not otherwise obtain. Id. at (Marshall, J. dissenting). Applying these three factors to the instant case, Petitioner s consent was too far attenuated from the field sobriety test to be tainted, even if the extension of the stop for the field sobriety test was found to be unlawful. It is difficult to navigate the ambiguity involved in the temporal proximity element, but Petitioner was not detained for anywhere close to the several hours that were found to be inherently coercive in Watson. And twelve seconds is not significantly different from the sixteen seconds that were found to have no impact on the attenuation analysis in Hogan. Under the most important consideration whether there were any intervening events Petitioner fails to show a causal connection between his consent and the alleged unlawful activity. In Belt and Green, mere conversation or the consent itself acted as intervening circumstances, both of which occurred in the case at hand. And both of these events were significantly less impactful than Officer Sanderson s instruction to Petitioner that he was free to go. Moreover, there is no evidence that Officer Sanderson acted with wanton disregard for Petitioner s constitutional rights. While the officers in Harris understood their actions 13

24 violated the Fourth Amendment, and still the statement was allowed into evidence, Officer Sanderson had a good faith belief that the extension of the stop was constitutional. Each of these factors weighs in favor of denying the motion to suppress. Together, they show a lack of causal connection between the extension of the stop and Petitioner s consent to the search, which is an independent reason to uphold the lawfulness of Petitioner s consent to the search. C. Even If Petitioner s Consent Was Tainted, Officer Sanderson Had Probable Cause to Search the Vehicle Lastly, even if none of the preceding arguments compels the admission of the methamphetamine evidence, Officer Sanderson had probable cause to search Petitioner s vehicle. If probable cause that a vehicle contains evidence of criminal activity exists, an officer is authorized to search... any area of the vehicle in which the evidence might be found. Arizona v. Gant, 556 U.S. 332, 347 (2009) (citing United States v. Ross, 456 U.S. 798, (1982)). An officer can be said to have probable cause if the facts and circumstances would warrant a prudent man in believing that the offense has been committed. Henry v. United States, 361 U.S. 98, 102 (1959). The test for probable cause looks to an officer s knowledge and experience. Herring v. United States, 555 U.S. 135, 145 (2009). The same factors that created reasonable suspicion upon which Officer Sanderson could require a field sobriety test also establish probable cause. While federal courts have shed little light on the issue, several state courts have held that constricted pupils helped establish probable cause in similar cases to the present one. In State v. Hegstrom, 543 N.W.2d 698 (Minn. Ct. App. 1996), the court found that constricted pupils were particularly helpful in establishing probable cause to believe that the defendant was driving under the influence when looked at in conjunction with evidence of inattentive driving. Id. at 14

25 702. In People v. Benedict, 82 Cal. Rptr. 759 (Cal. Ct. App. 1969), the court held that an officer had probable cause to believe the defendant was under the influence of an opiate drug when the officer observed the defendant s constricted pupils, the defendant s fumbling to find an identification in a wallet, and the defendant s slow and slurred speech. Id. at 761. Uncontrollable sleepiness in addition to establishing reasonable suspicion can also give an officer probable cause. In Ramirez v. City of Buena Park, 560 F.3d 1012 (9th Cir. 2009), the court found the defendant s uncontrollable sleepiness, irritability, [and] rapid breathing, in addition to his elevated pulse and confusion regarding the time, all established probable cause to issue an arrest for being under the influence of a controlled substance. Id. at A defendant s physical shakiness can also help create probable cause. See, e.g., United States v. Jolly, 368 F. App x 17, 18 (11th Cir. 2010) (finding probable cause to search a vehicle when the driver s hands were shaking and the officer saw him attempt to hide a clear plastic bag); United States v. Mayo, 627 F.3d 709, 713 (8th Cir. 2010) (finding probable cause when the defendant was nervous, had shaking hands, made contradictory statements, had a criminal history, and possessed suspicious packages). Similarly, just as it helped establish reasonable suspicion, extreme nervousness can weigh significantly in a court s determination of whether an officer had probable cause. United States v. Ledesma, 447 F.3d 1307, 1318 (10th Cir. 2006) (quoting United States v. Santos, 403 F.3d 1120, 1127 (10th Cir. 2006)) (using nervousness as a factor in determining an officer had probable cause to search a vehicle). The signs of illegal drug use that Petitioner exhibited were enough to establish probable cause for Officer Sanderson to believe that a search of his vehicle would find illegal drugs. In Hegstrom and Benedict, courts found probable cause when defendants exhibited constricted 15

26 pupils in conjunction with other factors. Here, Officer Sanderson had specific training and experience with identifying pupil size, R. at 4:14 19, and noticed Petitioner s pupils were constricted to a significantly smaller size than an average pupil, R. at 8:7 12. Further, Petitioner exhibited uncontrollable sleepiness which, when added to several other factors, was enough to create probable cause in Ramirez. Shaking hands and nervousness both helped established probable cause in several cases. Here, Petitioner exhibited every one of these factors constricted pupils, uncontrollable sleepiness, shaking hands, and extreme nervousness. This Court should affirm the judgment of the Supreme Court of Eagleton because Officer Sanderson had probably cause to search Petitioner s vehicle. II. The District Court Properly Denied Petitioner s Motion to Withdraw His Guilty Plea Because He Cannot Demonstrate Either That His Counsel Performed Deficiently or That He Was Prejudiced as a Result of His Counsel s Performance Petitioner contended in his motion to withdraw his guilty plea that his original counsel, Attorney Brendanawicz, performed deficiently while representing Petitioner in his criminal proceeding for possession with intent to manufacture methamphetamine. R. at 28. Despite Attorney Brendanawicz advising Petitioner that there was a strong risk, R. at 29, that he would be deported, Petitioner claims that Attorney Brendanawicz acted entirely outside the range of reasonable professional assistance by failing to advise him of the risks of deportation. Petitioner further contends that he suffered prejudice as a result of Attorney Brendanawicz s allegedly deficient performance. R. at 31. Petitioner cannot, however, show either that Attorney Brendanawicz performed in a constitutionally incompetent manner during his representation or that he experienced any prejudice as a result of that representation. 16

27 A defendant in a criminal trial is constitutionally entitled to the effective Assistance of Counsel. U.S. CONST. amend. VI. When a defendant alleges that he has not received such assistance, a court addresses a claim of ineffective assistance of counsel by reviewing the defendant s counsel s performance under the Strickland test. Strickland v. Washington, 466 U.S. 668, 686 (1984). In that case, this Court laid out the proper test for such claims as follows: First, the defendant must show that counsel s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Id. at 687. The Court continued, Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable. Id. (emphasis added). The Court reviews all circumstances of the attorney s representation of the defendant, but remains highly deferential to the attorney s performance due to the strong presumption that the attorney delivered reasonable professional assistance. Id. at 689. Shortly after deciding Strickland, this Court held in Hill v. Lockhart, 474 U.S. 52 (1985), that the Strickland test also applies to challenges to guilty pleas based on ineffective assistance of counsel. Id. at 58. Specifically, Id. at In the context of guilty pleas, the first half of the Strickland test is nothing more than a restatement of the standard of attorney competence.... The second, or prejudice, requirement, on the other hand, focuses on whether counsel s constitutionally ineffective performance affected the outcome of the plea process. More recently, this Court determined that the Strickland test applies to claims involving an attorney s alleged failure to properly advise her client regarding the immigration-related 17

28 consequences of a criminal conviction. Padilla v. Kentucky, 559 U.S. 356, 366 (2010). Thus, this case should be analyzed through the lens of the Strickland test, as it has been extended to guilty pleas by Hill and to immigration-related issues by Padilla. Within that legal framework, Petitioner s contentions cannot succeed for two reasons. First, Attorney Brendanawicz delivered reasonable professional assistance, as required by Strickland, 466 U.S. at 689, when he advised Petitioner that accepting the State s guilty plea carried a strong risk of deportation. Accordingly, Petitioner s claim that Attorney Brendanawicz acted deficiently must fail. Second, Petitioner s rejection of the plea bargain would not have been rational under the circumstances, Padilla, 559 U.S. at 372. As a result, Petitioner s claim that he was prejudiced by Attorney Brendanawicz s performance must fail as well. A. Attorney Brendanawicz Delivered Reasonable Professional Assistance When He Advised Petitioner That His Guilty Plea Carried a Strong Risk of Deportation Attorney Brendanawicz served as counsel to Petitioner during the proceeding for Petitioner s criminal possession of methamphetamine. R. at 28. The State of Eagleton commenced its criminal case against Petitioner for his illegal possession of methamphetamine, with intent to manufacture more of the controlled substance, pursuant to Eagleton Statute 841, which states in pertinent part: It shall be unlawful for any person to knowingly or intentionally (1) Manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.... Eg. Stat. 841(a). Because of Petitioner s status as a legal permanent resident of the United States, a conviction for his criminal behavior had the potential to cause immigration-related consequences for Petitioner. R. at 28. Specifically, under United States immigration law, Any alien who at any 18

29 time after admission has been convicted of a violation of... any law or regulation of a State... relating to a controlled substance... is deportable. 8 U.S.C. 1227(a)(2)(B)(i) (2012) (emphasis added). Subject to 8 U.S.C. 1229b(a), however, the Attorney General would also be free to cancel his removal. 8 U.S.C. 1229b(a) (2012) (stating the Attorney General has authority to cancel removals when the conviction is not for an aggravated felony). A conviction under 841(a)(1), under which Petitioner was charged, would in fact make it possible for the Attorney General to either order or cancel his removal. Thus, such a conviction could be said to carry a risk of deportation. Removal from the United States through a deportation proceeding has long been considered a serious consequence. See, e.g., Fong Yue Ting v. United States, 149 U.S. 698, 740 (1893). Accordingly, defendants have been found by this Court to be entitled by the Sixth Amendment to the competent advice of an attorney regarding the potential immigration-related consequences of a criminal conviction, including the possibility of deportation. Padilla, 559 U.S. at 366. If a defendant feels he has received ineffective assistance of counsel during the representation, including the advice given to him in relation to the possibility of deportation, the defendant s counsel s performance is subject to review by the court under the Strickland test. Id. In the first prong of the Strickland test, the defendant must show that counsel s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Strickland, 466 U.S. at 687. In this context, an attorney s performance is judged in relation to the standard... of reasonably effective assistance. Id.; see also, e.g., Trapnell v. United States, 725 F.2d 149, (2d Cir. 1983). This is an objective test, Strickland,

30 U.S. at 688, and [t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms. Id. This Court in Strickland also emphasized that [j]udicial scrutiny of counsel s performance must be highly deferential, id. at 689, and that there exists a strong presumption that counsel s conduct falls within the wide range of reasonable professional assistance, id. This is because [i]t is all too tempting for a defendant to second-guess counsel s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Id. Deferential review of counsel s performance ensures that the independence and wide latitude of judgment that attorneys are trained to bring and that they ought to bring remain protected from second-guessing when their representation does not constitute actually constitutionally deficient representation. This Court has since explained that the Strickland test applies when the challenged aspect of attorney performance is the alleged failure of defense counsel to advise the defendant of the potential immigration-related consequences of a criminal conviction. Padilla, 559 U.S. at 366. Because of the complexity of the immigration system s legal framework, and because criminal defense attorneys are rarely well-versed in immigration law, the Court acknowledged that there will be situations where the potential immigration-related consequences of criminal convictions will not be clear. Id. at 369. To deal with such situations, the Court laid out the following rule: Id. When the law is not succinct and straightforward..., 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. But when the deportation consequence is truly clear... the duty to give correct advice is equally clear. 20

31 Some courts have found the consequences of the statute presently at issue, 1227(a)(2)(B)(i) (and others that are similar), to be unclear. See, e.g., State v. Shata, 868 N.W.2d 93 (Wis. 2015); Commonwealth v. Escobar, 70 A.3d 838, 841 (Pa. Super. Ct. 2013) (finding counsel s advice that it was likely there would be deportation proceedings instituted against [Escobar] to be correct, since Escobar s actual deportation was not an absolute certainty ); Cun-Lara v. State, 273 P.3d 1227, 1239 (Haw. Ct. App. 2012) (finding counsel s statement that [Cun-Lara] would be lucky if he was not deported constitutionally sufficient). This lack of clarity is compounded in situations like Petitioner s where his conviction does not necessarily entail actual deportation but simply makes him deportable. Cun-Lara, 273 P.3d at In Shata (a case with some remarkably similar circumstances to the instant one), the defendant pled guilty to possession with intent to deliver marijuana. Shata, 868 N.W.2d at 95. This guilty plea, and the court s subsequent conviction, made Shata subject to deportation under 1227(a)(2)(B)(i). Id. at 95 n. 3. Shata s attorney, like Attorney Brendanawicz, told Shata that a conviction under the state statute carried a strong chance of deportation. Id. at , 113. Shata s attorney, also like Attorney Brendanawicz, did not read the relevant immigration statutes, turning instead to the aid of federal prosecutors who told him that a conviction could subject his client to deportation. Id. at 100. Shata s attorney, also like Attorney Brendanawicz, pursued other legal strategies to avoid Shata becoming deportable, but faced total opposition from the State in those attempts, especially in light of the overwhelming amount of evidence against Shata. Id. The court found that the assistance provided by Shata s attorney was at no point constitutionally ineffective under Padilla. Id. at