In The Supreme Court of the United States

Transcription

1 No In The Supreme Court of the United States TOMAS HAVERFORD, v. Petitioner, STATE OF EAGLETON, Respondent. ON WRIT OF CERTIORARI TO THE SUPREME COURT OF EAGLETON BRIEF FOR PETITIONERS TEAM 17 Counsel for Petitioner

2 QUESTIONS PRESENTED I. Whether the district court properly denied Petitioner s motion to suppress evidence of methamphetamine and other supplies commonly used to make it, when Petitioner claims that such evidence was seized in violation of the Fourth Amendment, which requires proof that: (a) the officer lacked reasonable suspicion to extend an otherwise lawful traffic-stop, (b) the officer tainted Petitioner s consent to search by conducting an unlawfully extended traffic-stop, and (c) the officer constructively seized Petitioner without reasonable suspicion, thereby invalidating Petitioner s consent to search. A. May a traffic-stop be permissibly extended beyond the scope of the violation itself to conduct field sobriety tests when the officer concedes he is not a drug-recognition expert but claims that experience suggested Petitioner s nervousness was the result of drug use. B. May Petitioner s consent to search become tainted by prior illegality when only a fleeting moment separated the illegality and consent in which the officer once satisfied with Petitioner s sobriety test performance exchanged farewells and then, twelve seconds later, reapproached Petitioner with another drug-related request? C. Whether a reasonable person in Petitioner s position would have felt free to disregard a reapproaching officer s requests when Petitioner had already been detained by the officer for sometime and denied all requests to leave. II. Whether the district court properly denied Petitioner s motion to withdraw guilty his guilty plea on the grounds of ineffective assistance of counsel, which requires proof that: (a) the Petitioner s attorney performed deficiently and (b) the Petitioner was prejudiced by this deficient performance. A. Whether an attorney performs deficiently for purposes of an ineffective assistance of counsel claim when attorney concedes that he did not perform research or corroborate advice received before advising client on a legal matter. B. Whether an attorney s deficient performance was prejudicial when the client, who wishes to avoid deportation, acts on the advice of attorney and takes a guilty plea that carries with it a mandatory deportation consequence. i

3 TABLE OF CONTENTS QUESTIONS PRESENTED... i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iii CONSTITUTIONAL PROVISIONS OR STATUTES INVOLVED... vi STATEMENT OF THE CASE... 1 SUMMARY OF THE ARGUMENT... 5 ARGUMENT... 8 I. THE SUPREME COURT OF EAGLETON ERRED IN AFFIRMING THE DISTRICT COURT'S DENIAL OF HAVERFORD S MOTION TO SUPPRESS EVIDENCE BECAUSE HAVERFORD S CONSENT WAS TAINTED BY THE UNLAWFUL EXTENSION AND INVALIDATED BY THE CONSTRUCTIVE SEIZURE OF THE STOP A. Officer Sanderson unlawfully required Haverford to perform field sobriety tests when, under a totality of the circumstances, Sanderson lacked reasonable suspicion to extend the investigation beyond that normally associated with a traffic-stop B. Haverford s consent to search was not so attenuated to purge the unlawful extension s taint because of the close causal connection, the lack of intervening circumstances, and the purpose and flagrancy with which Sanderson conducted his investigation C. Haverford was constructively seized when Officer Sanderson reapproached his vehicle because, based on a totality of the circumstances, a reasonable person in Haverford s position would not have felt free to teriminate the encounter II. THE DISTRICT COURT IMPROPERLY DENIED HAVERFORD S MOTION TO WITHDRAW HIS GUILTY PLEA BECAUSE HAVERFORD S COUNSEL FELL BELOW THE STANDARD OF PREVAILING PROFESSIONAL NORMS WHICH IN TURN PREJUDICED HAVERFORD S DECISION TO ACCEPT A GUILTY PLEA A. Attorney Brendanawicz s performance fell below an objective standard of reasonableness when he incorrectly advised Haverford that deportation was only a possibility, without having conducted adequate research B. Haverford was prejudiced by Attorney Brendanawicz s deficient performance because Haverford would have rationally rejected the proffered guilty plea considering the mandatory deportation consequences, but-for Attorney Brendanawicz s incorrect advice CONCLUSION ii

4 TABLE OF AUTHORITIES Constitutional Provisions U.S. Const. amend. IV.... passim U.S. Const. amend. VI.... passim Statutes 8 U.S.C. 1227(a)(2)(B)(i) Eg. Stat Eagleton R. Crim. Pro. 38(b)... 4 Eagleton R. Crim. Pro United States Supreme Court Cases Brendlin v. California, 551 U.S. 249 (2007) Brown v. Illinois, 422 U.S. 590 (1975)... 15, 16, 20, 21 California v. Hodari, 449 U.S. 621 (1991) Delaware v. Prouse, 440 U.S. 648 (1979)... 13, 24 Dunaway v. New York, 442 U.S. 200 (1979) Escoe v, Zerbsta, 295 U.S. 490 (1935) Florida v. Bostick, 501 U.S. 429 (1991) Florida v. Royer, 460 US 491 (1983)... 9 Hayes v. Florida, 470 U.S. 811 (1985) Hill v. Lockhart, 474 U.S. 52 (1985) I.N.S. v. Delgado, 466 U.S. 210 (1984) I.N.S. v. St. Cyr, 533 U.S. 289 (2001) Illinois v. Wardlow, 528 U.S. 119 (2000) Indianapolis v. Edmond, 531 U.S. 32 (2000) Katz v. United States, 389 U.S. 347 (1967) Mapp v. Ohio, 367 U.S. 463 (1961)... 8 McMann v. Richardson, 397 U.S. 759 (1970) Michigan v. Chesternut, 486 U.S. 567 (1988) New York v. Harris, 495 U.S. 14 (1990) Ornelas v. United States, 517 U.S. 690 (1996)... 8, 9 Padilla v. Kentucky, 559 U.S. 356 (2010)... passim iii

5 Rodriguez v. United States, 135 S. Ct (2015)... 9, 10 Strickland v. Washington, 466 U.S. 668 (1984)... passim Terry v. Ohio, 392 U.S. 1 (1968) United States v. Arvizu, 534 U.S. 266 (2002)... 9, 15 United States v. Calandra, 414 U.S. 338 (1974).... 8, 26 United States v. Cortez, 449 U.S. 411 (1981)... 10, 11 United States v. Mendenhall, 446 U.S. 544 (1980)... 22, 23, 24, 25 United States v. Sokolow, 490 U.S. 1 (1989)... 14, 23 Weeks v. United States, 232 U.S. 383 (1914)... 8 Wong Sun v. United States, 371 U.S. 471 (1963) United States Federal Circuit Court Cases United States v. $186, in U.S. Currency, 590 F.3d 942 (9th Cir. 2009) Campbell v. United States, 686 F.3d 353 (6th Cir. 2012) Nicacio v. United States I.N.S., 797 F.2d 700 (9th Cir. 1985)... 11, 12 United States v. Davis, 94 F.3d 1465 (10th Cir. 1996) United States v. Fernandez, 18 F.3d 874 (10th Cir. 1994)... 17, 18 United States v. Green, 111 F.3d 515 (7th Cir. 1997) United States v. Gregory, 79 F.3d 973 (10th Cir. 1996) United States v. Hernandez-Alvarado, 891 F.2d 1414 (9th Cir. 1989) United States v. Melendez Garcia, 28 F.3d 1046 (10th Cir.1994) United States v. Peters, 10 F.3d 1517 (10th Cir. 1993)... 11, 12 United States v. Reed, 349 F.3d 457 (7th Cir. 2003) United States v. Simpson, 439 F.3d 490 (8th Cir. 2006)... 17, 18 United States v. Washington, 387 F.3d 1060 (9th Cir. 2004) State Court Cases In re Ashley W., 821 N.W.2d 706 (Neb. 2012) Ortega-Araiza, 331 P.3d 1189 (Wyo. 2014) People v. Brendlin, 45 Cal.4th 262 (Cal. 2008) State v. Garcia, 123 S.W.3d 335 (Tenn. 2003)... 14, 15, 16, 17 State v. Hogan, 868 N.W.2d 124 (Wis. 2015)... passim iv

6 State v. Meyer, 576 N.W.2d 260 (Wis. 1998)... 11, 13 State v. Shoulderblade, 905 P.2d 289 (Utah 1995) Other Authorities 3 Bender, Criminal Defense Techniques 60A.01, 60A.02[2] (1999) ABA Pleas of Guilty Standards (b) ABA Standards for Criminal Justice (4th ed. 2015) ( The Defense Function ) Maguire, Evidence of Guilt, 221 (1959) National Highway Traffic Safety Administration, Drugs and Human Performance Fact Sheets, Report No. DOT HS , at 21 (April 2014) v

7 CONSTITUTIONAL PROVISIONS OR STATUTES INVOLVED According to the Fourth Amendment: 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. According to the Sixth Amendment: 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. According to 8 U.S.C. 1227(a)(2)(B)(i): 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 of (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... other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable. According to Eagleton Statute (b): Headlamps on Motor Vehicles. Every self-propelled motor vehicle other than motorcycles, road machinery, and farm tractors 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. According to Eagleton R. Crim. Pro. 11: (a) A prisoner in custody under sentence who claims a right to be released on the ground that the sentence is subject to collateral attack may at any time proceed directly by motion in the court that imposed the sentence to vacate, set aside or correct it. (b) The motion shall be signed and verified by the movant and shall state specifically the grounds on which the sentence is being challenged and the facts on which the movant relies in support of such grounds. Failure to comply with this section shall warrant a summary dismissal of the motion. vi

8 (c) The motion shall state all grounds for holding the sentence invalid of which the movant has knowledge. Final disposition of the motion shall conclude all issues that could reasonably have been presented in the same proceeding. (d) If the answer raises a material issue of fact that cannot be determined on the face of the record the court shall grant a prompt hearing and, if the movant is without counsel of record and if financially unable to employ counsel, shall upon specific written request by the movant appoint counsel to represent the movant in the proceeding, including appeal. (e) At the conclusion of the hearing or hearings, the court shall make findings determinative of the material issues of fact and enter a final order accordingly. If it appears that the movant is entitled to relief, the court shall vacate the judgment and discharge, resentence, or grant him or her a new trial, or correct the sentence as may be appropriate. (f) Either the movant or the Commonwealth may appeal from the final order or judgment of the trial court on a motion brought under this rule. According to Eagleton R. Crim. Pro. 38(b): Cases Consolidated on Appeal. Where there is more than one (1) appeal from the same order or judgment or where two (2) or more appeals involve a common question of law or fact, the appellate court may order a consolidation of the appeals upon its own motion, or upon the motion of any party. vii

9 STATEMENT OF THE CASE Petitioner Tomas Haverford is a resident of Eagleton. R. at 31. In 2003 he emigrated from his home country of Venezuela at age nineteen. Id. Haverford has since remained a lawful permanent resident of the United States. Id. The Traffic Stop. On May 20, 2013, Deputy David Sanderson, a deputy for the Pawnee County Sheriff s Department for fifteen years, stopped Haverford for driving with a burnt out headlight around 6:10 p.m. R. at 3: Sanderson approached Haverford s window and asked for his identification. R. at 5:1-2. Sanderson then went back to his vehicle and stated in the computer audio log that he would require Haverford to perform field sobriety tests based on his observations of Haverford s pupils and nervous demeanor. R. at 11:8-11. Sanderson then asked Haverford to step out of the vehicle. R. at 12:13. Haverford asked to go home, but Sanderson refused. R. at 12: Sanderson commented again that Haverford appeared to be nervous and that his pupils were restricted, which were an indication of drug use based on his experience and training. R. at 12:25. Haverford explained that he was not drug user but was currently on the medication Aderall. R. at 12: Sanderson said that in his experience with people who had taken Aderall in the past, they were not as nervous as Haverford was. R. at 12: Haverford explained that he was not nervous, but rather, upset because Sanderson would not leave him alone and because he wanted to go to sleep. R. at 12: Deputy Sanderson then suggested Haverford take a field sobriety test. R. at 12: Haverford complied. R. at 12:35. Sanderson ordered Haverford to complete a series of five different field sobriety tests. R. at 13: The tests included: horizontal gaze nystagmus test, one-leg stand test, walk-and-turn 1

10 test, color identification test and hand-eye coordination test. Id. After the last test, Sanderson determined that Haverford had passed the test and then told him that he could go. R. at 14:66. Haverford got back into his car, while Sanderson walked to the outside of his police vehicle. R. at 18. Twelve seconds later, Sanderson reapproached Haverford and asked if he could speak with him again. R. at 14:69. Sanderson began addressing Haverford at the trunk area of Haverford s vehicle during his reapproach. R. at 9:8-9. In response, Haverford got out of his vehicle. R. at 9: Sanderson then pressed Haverford if there was anything in his possession Sanderson should know about. R. at 14:71. Haverford replied that there was not. R. at 14:72. Sanderson then asked Haverford if he could search Haverford s vehicle. R. at 14:73. Haverford agreed, and Sanderson found a bottle of Ammonium Lactate, arrested him for possession with intent to manufacture methamphetamine, and read him his Miranda Rights. R. at 14: Attorney Brendanawicz s Counsel to Tomas Haverford. Following Haverford s guilty, the issue of his deportation arose. R. at 22. He was deportable under 8 U.S.C (a)(b)(i), for having been convicted of violating the Eagleton Controlled Substances Act, Eg. Stat. 841 (a)(1). R. at 35. Attorney Mark Brendanawicz represented Haverford at this time. R. at 23. At Haverford s plea hearing, Brendanawicz requested an adjournment a little after 10:05 a.m. when the proceedings commenced. R. at 24:1-23. Brendanawicz suggested to reconvene at 10:50 a.m. R. at 25:1-2, though Judge Hapley offered to reschedule that afternoon. R. at 24: Brendanawicz told the judge in the reconvened proceeding that he had informed his client that there was a strong possibility of deportation. R. at 25:12. Haverford nonetheless pleaded guilty and informed the judge that he 2

11 understood but was still worried about the possibility of being deported if he were to plead guilty. R. at After the proceeding, Haverford challenged that Brendanawicz performed deficiently since he did not correctly advise him of his deportation risk. R. at 28:3-9. Brendanawicz testified that he knew the crime would subject Haverford to deportation, but did not know that deportation was mandatory. R. at 28: Brendanawicz conceded that he did not research the immigration consequences to find out whether deportation was mandatory. R. at 28: Brendanawicz did however contact federal prosecutors to ask them whether pleading to the narcotics charge would subject Haverford to deportation. R. at 28: They all replied it could. R. at 29:1-2. According to Brendanawicz, the federal prosecutors he contacted worked in the immigration field. R. at 29:2. Brendanawicz told Haverford there was a strong risk of deportation. R. at 29:4-8. At the same hearing, Haverford testified that that if he knew deportation were a certainty, he would not have pled guilty. R. at 30:5-6. Haverford explained that he did not wish to be deported because Venezuela is a more dangerous country, because all of his family in Venezuela were gone, because his life and work were in the United States, and because he would have nothing to go back to in Venezuela (specifically no family, and no job). R. at 30:6-9. The Court Proceedings. On July 10, 2013, Haverford s motion to suppress the evidence seized from his car was denied by the Pawnee District Court. R. at 21. The court held that though Sanderson did not have reasonable suspicion to extend the stop, the consent was not tainted by a lack of reasonable suspicion. R. at 20. Moreover, it was determined that Haverford was not seized when he gave consent. R. at 17. 3

12 On August 21, 2013, Haverford pled guilty to possession with intent to manufacture methamphetamine under the Eagleton Controlled Substances Act and a ten-year sentence. R. at 25:16. On October 16, 2013, Haverford sought to withdraw his guilty plea under Eagleton R. Crim. Pro. 11. R. at 28: 3-4. Haverford argued that Brendanawicz had counseled him incorrectly regarding deportation. R. at 28:5-6. On November 1, 2013, his motion was denied. R. at 37. The Pawnee District Court held that though Brendanawicz s assistance was insufficient, his insufficiency did not prejudice Haverford s choice in accepting the plea bargain. R. at On November 15, 2013, The Supreme Court of Eagleton reviewed the trial court s denial of Haverford s motion to withdraw guilty plea and denial of his motion to suppress, under Rule 38(b). R. at 38. The Supreme Court of Eagleton affirmed the trial court s denial of Haverford s motion to suppress and motion to withdraw guilty plea. R. at 50. The court reasoned that since Haverford was not constructively seized, his consent was valid. R. at 45. Furthermore, the court held that because Sanderson s extension of the traffic stop was not illegal, the attenuation analysis was unnecessary. R. at Lastly, since the court found Brendanawicz s assistance not deficient, the prejudicial analysis was also unnecessary. R. at Justice Knope dissented. R. at 50. On May 13, 2015, Haverford petitioned the Supreme Court of the United States to review the issue presented to the Supreme Court of Eagleton. R. at 60. The Supreme Court granted Haverford s petition for the October, 2015 term. R. at 61. 4

13 SUMMARY OF THE ARGUMENT This Court should find the evidence obtained by Officer Sanderson inadmissible in the State s case against Tomas Haverford. The exclusionary rule ensures that evidence obtained in violation of the Fourth Amendment shall not be used against the accused in a court of law. This serves the purpose of deterring similar investigatory misconduct by law enforcement in the future, and protecting the rights of the individual. The evidence obtained by Sanderson is inadmissible because he failed to articulate a reasonable basis for extending the stop to conduct field sobriety tests. In this case, the only indicators that Sanderson justified the extension of the stop with were Haverford s nervousness and restricted pupils. However, Sanderson s law enforcement experience did not include drug-recognition, nor did he possess a means of corroborating his pupil analysis. Nervousness then, became the only objective basis for which Sanderson had to extend the stop. Precedent establishes that nervousness alone is an insufficient factor for determining reasonable suspicion for the purpose of a field sobriety test. Exclusion of the evidence in this case would deter future law enforcement from extending traffic-stops on a basis of minimal suspicion at best. Haverford s consent to search and the evidence gained thereafter were not so attenuated as to purge the primary taint put in place by Sanderson s unlawful extension. A meager twelve seconds passed between Haverford s prolonged detention and consent to search. There is nothing in the record to suggest any intervening circumstances broke the causal chain, save for a free-to-go statement. That statement, however, would not 5

14 have led a reasonable person into believing that they were actually free to go under the totality of the circumstances in this case. Lastly, Sanderson exhibited purpose and flagrancy by persistently pressing Haverford on questions related to drug possession. As fruit of the poisonous tree, exclusion of the evidence seized will serve to deter law enforcement from engaging in future fishing expeditions that exploit prior misconduct. Haverford s consent was invalidated by Sanderson s constructive seizure without reasonable suspicion. In reviewing the nature of the stop, Haverford was clearly under the authority of Sanderson at his reapproach. Nothing in the record suggests that a reasonable person in Haverford s position would have felt free to comply with Sanderson s requests. Sanderson denied all requests made by Haverford to leave during the initial phase of the traffic-stop. As opposed to a consensual encounter where an officer approaches an individual before questioning, Sanderson began addressing Haverford during reapproach from the trunk of Haverford s vehicle. Sanderson summoned Haverford, as was exhibited by his exiting of the vehicle. Deterrence is served by excluding evidence gained by law enforcement who effectuate a constructive seizure without reasonable suspicion. This Court should also find that the counsel provided by Attorney Brendanawicz regarding Haverford s guilty plea, fell below the standards guaranteed by the Sixth Amendment. As a result, Haverford s guilty plea should be withdrawn on the basis of ineffective assistance of counsel. Brendanawicz s counsel was ineffective for Sixth Amendment purposes because his deficient performance prejudiced Haverford into accepting the consequences of a mandatory deportation. 6

15 Brendanawicz was deficient in performance because his advice fell below prevailing professional norms. Brendanawicz was under a duty to accurately advise his client since the applicable statute s meaning was clear. Had Brendanawicz conducted basic research, he would have been able to correctly advise Haverford that deportation was mandatory. Brendanawicz contacted federal prosecutors but did not corroborate their advice, when nothing in the record was indicative of their qualifications. In light of these circumstances, Haverford overcomes the presumption in favor of effective assistance. Brendanawicz prejudiced Haverford by his deficient performance. But-for Brendanawicz s shoddy assistance of counsel, Haverford would not have accepted a guilty plea mandating his removal. There is a reasonable probability that Haverford would have proceeded to trial. Haverford faced the prospect of returning to a dangerous country with no family, while also leaving behind his life and business in the United States. 7

16 ARGUMENT Questions concerning the Fourth Amendment, are reviewed de novo on appeal. Ornelas v. United States, 517 U.S. 690, 699 (1996). Likewise, claims of ineffective assistance are mixed questions of law and fact, which are reviewed de novo. Campbell v. United States, 686 F.3d 353, 357 (6th Cir. 2012). I. THE SUPREME COURT OF EAGLETON ERRED IN AFFIRMING THE DISTRICT COURT S DENIAL OF HAVERFORD S MOTION TO SUPPRESS EVIDENCE BECAUSE HAVERFORD S CONSENT WAS TAINTED BY THE UNLAWFUL EXTENSION AND INVALIDATED BY THE CONSTRUCTIVE SEIZURE OF THE STOP. Under the Fourth Amendment, individuals are afforded protection from unreasonable searches and seizures. U.S. Const. amend. IV. Evidence that is obtained in violation of the Fourth Amendment is not admissible in court under the exclusionary rule. United States v. Calandra, 414 U.S. 338, 347 (1974); Mapp v. Ohio, 367 U.S. 463 (1961); Weeks v. United States, 232 U.S. 383 (1914). The exclusionary rule was adopted to effectuate the Fourth Amendment s protections that citizens be secure in their persons, houses, papers and effects.... United States v. Calandra, 414 U.S. 338, 347 (1974) (quoting U.S. Const. amend. IV). A. Officer Sanderson unlawfully required Haverford to perform field sobriety tests when, under a totality of the circumstances, Sanderson lacked reasonable suspicion to extend the investigation beyond that normally associated with a traffic-stop. Because the Fourth Amendment is implicated by a traffic stop, courts recognize: [L]ike a Terry stop, the tolerable duration of police inquiries... is determined by the seizure s mission - to address the traffic violation that warranted the stop and attend to safety concerns. Rodriguez v. United States, 135 S. Ct. 1609, 1614 (2015). The Supreme Court has maintained that the investigative methods used in a car stop must be the least intrusive means reasonably 8

17 available to corroborate the officer s suspicions in an appropriate amount of time. Florida v. Royer, 460 US 491, 500 (1983). An expansion in the scope of the inquiry, when accompanied by an extension of time longer than would have been needed for the original stop, must be supported by reasonable suspicion. Rodriguez v. United States, 135 S. Ct. 1609, 1615 (2015). Reasonable suspicion is not a bright line rule, but rather a fluid concept that takes its substance from the particular context in which the standard is being assessed. Ornelas v. United States, 517 U.S. 690, 696 (1996). When discussing how reviewing courts should make reasonable-suspicion determinations, the Supreme Court has repeatedly said that courts must look at the totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing. United States v. Arvizu, 534 U.S. 266, 273 (2002); United States v. Cortez, 449 U.S. 411, 417 (1981) (discussing that the essence of all that has been written is that the totality of the circumstances--the whole picture--must be taken into account. ). It is not enough that intrusions upon constitutionally guaranteed rights be based on inarticulate hunches and simple good faith on the part of the officer. See Terry v. Ohio, 392 U.S. 1, 22 (1968). In Rodriguez v. U.S., this Court held that to extend a lawful stop in order to conduct a dog sniff test, there must be reasonable suspicion based on additional suspicious factors that come to light during the officer s initial investigation. 135 S.Ct. at According to the Court, conducting a dog sniff was not an ordinary incident of a traffic stop, in the sense that the extension was used for the purpose of detecting controlled substances. Id. As such, the Court 9

18 maintained that the officer required reasonable suspicion of criminal activity to justify prolonging the detention. Id. at The Rodriguez court declined to resolve issue. Id. 1 Sanderson in the present case, just as in the case of a dog-sniff, extended the stop beyond that normally associated with an ordinary traffic-stop to conduct a field sobriety test. R. at 5:4-7. This extension was clearly not fairly characterized as part of the officer s traffic mission. Rodriguez, 135 S.Ct. at Rather, like a dog-sniff, the field sobriety tests were a measure aimed at detect[ing] evidence of ordinary criminal wrongdoing, namely the detection of controlled substances. Rodriguez, 135 S.Ct. at 1615 (quoting Indianapolis v. Edmond, 531 U.S. 32, (2000)). Thus, Sanderson s extension of the stop could only be justified by a finding of reasonable suspicion. Id. In State v. Meyer, the Supreme Court of Wisconsin held that [a]n officer s experience and training are valid, relevant considerations. However, without an application of generalized knowledge to the particular facts of a given case, such considerations are insufficient to support a determination of reasonable suspicion. 576 N.W.2d 260, 271 (Wis. 1998). The court s conclusion was consistent with similar Supreme Court considerations. Id. The Ninth Circuit has adopted similar reasoning stating: facts are to be interpreted in the light of a trained officer s experience. Permissible deductions or rational inferences must be grounded in objective facts and be capable of rational explanation.... United States v. Hernandez-Alvarado, 891 F.2d 1414, 1416 (9th Cir. 1989) (citing United States v. Cortez, 449 U.S. 411, 417 (1981)). The Ninth Circuit also stated: while an officer may evaluate the facts supporting reasonable suspicion in light of his experience, experience may not be used to give 1 The question whether reasonable suspicion of criminal activity justified detaining Rodriguez beyond completion of the traffic infraction investigation, therefore, remains open for Eighth Circuit consideration on remand. Rodriguez v. United States, 135 S. Ct. 1609, (2015). 10

19 the officers unbridled discretion in making a stop. Nicacio v. United States I.N.S., 797 F.2d 700, 705 (9th Cir. 1985). Though it has been held that an officer s experience of twelve years was a plus, the fact that he conceded that he was not a drug-recognition expert undermined his credibility. State v. Hogan, 868 N.W.2d 124, (Wis. 2015); United States v. Peters, 10 F.3d 1517, 1523 (10th Cir. 1993). In Hogan, the court did not consider the officer's testimony in its evaluation of reasonable suspicion because the officer never had definitive information as to how drug-use affects pupils at the time of the stop, nor did the officer substantiate his testimony at the hearing. Hogan, 868 N.W.2d at 133. In the case at hand, Haverford was lawfully stopped for violating Eg. Stat , the unlawful operation of a vehicle with a burnt out headlight. R. at 6: However, Sanderson s request that Haverford perform field sobriety tests was without reasonable suspicion that Haverford was under the influence. R. at 12: Officer Sanderson had fifteen years of experience in law enforcement, but the basis for his pupil analysis was unfounded. R. at 4:6-21. Sanderson did not have the training necessary or the pupilometer nearby to make a permissible inference concerning Haverford s pupils. R. at 10:4. Likewise, he did not bring the pupil-analysis chart to substantiate 2 his testimony. Id. There was thus no objective, rational explanation to require the performance of field-sobriety tests. Furthermore, Sanderson conceded at the suppression hearing that he was not an expert in drug recognition. R. at 8:1-2. Though he had fifteen years of experience (R. at 3:18), there was no proof of generalized knowledge to the particular facts surrounding the case, which in this case would have been drug-recognition. See Meyer, 576 N.W.2d at 271. Sanderson s decision to have Haverford perform field sobriety tests 2 Moreover, he incorrectly assumed that because Haverford s pupils were restricted, Haverford was under the influence of drugs. R. at 4: However, studies have shown that drugs such as cocaine tend dilate the pupils as opposed to restrict. See National Highway Traffic Safety Administration, Drugs and Human Performance Fact Sheets, Report No. DOT HS , at 21 (April 2014). 11

20 was clearly a decision made with unbridled discretion based on a subjective analysis of the victim s pupils. See Nicacio, 797 F.2d at 705. With the pupil evidence rendered moot, the basis for Sanderson requiring Haverford to perform the field sobriety tests, turned solely on the fact that Haverford appeared nervous and shaky during the investigatory stop. R. at 4:6-9. However, there could be many other factors which might lead to nervousness other than the consumption of controlled substances including the show of police authority itself: We cannot assume that the physical and psychological intrusion visited upon the occupants of a vehicle by a random stop to check documents is of any less moment than that occasion by a stop by a border agents on roving patrol. Both of these stops generally entail law enforcement officers signaling a moving automobile to pull over to the side of the roadway, by means of a possibly unsettling show of authority. Both interfere with the freedom of movement, are inconvenient, and consume time. Both may create substantial anxiety. Delaware v. Prouse, 440 U.S. 648, 657 (1979) (emphasis added). Furthermore, in Hogan, the Supreme Court of Wisconsin stated as a practical matter, police cannot expect to conduct field sobriety tests on every motorist who is shaking and nervous when stopped by an officer. 868 N.W.2d at 133; United States v. Peters, 10 F.3d 1517, 1523 (10th Cir. 1993) (holding nervous behavior could not reasonably have served as the sole basis for [officer s] suspicion... ). Though the Supreme Court in Illinois v. Wardlow stated that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion, the facts in Wardlow did not revolve around a traffic stop. 528 U.S. 119, 124 (2000). There, the Respondent had exhibited nervous behavior by fleeing from law enforcement. Id. at 119. The Supreme Court also considered nervous behavior in determining reasonable suspicion in a case where an individual was 12

21 stopped by law enforcement upon arrival at an airport. United States v. Sokolow, 490 U.S. 1, 6 (1989). However in contrast to both Wardlow and Sokolow, the present facts do not consist of fleeing law enforcement, nor approaching an individual in an airport. Rather, our case concerns the extension of what was a lawful traffic stop. Furthermore, in Sokolow, the court considered many different circumstances other than nervousness in finding a basis for reasonable suspicion. Id. In the case at hand, there is only one circumstance which Sanderson had available to determine reasonable suspicion that Haverford was operating a vehicle under the influence. According to Officer Sanderson, his experience with Aderall users led him to conclude that Haverford s shaking was an unusual reaction to the drug. R. at 12: This was the only basis for Haverford s field sobriety test since Officer Sanderson s pupil analysis was not based on any skill or expertise that he had in the field of drug-recognition. R. at 8:1-2. Furthermore, Haverford explained to Officer Sanderson that the reason for his nervous and shaky behavior was due to the fact that he was upset that Officer Sanderson would not leave him alone. R. at 12: Officer Sanderson s analysis of the totality of the circumstances was based on the single observation of nervousness and shaking, not a dispositive factor to be considered when determining reasonable suspicion for the purpose of a field sobriety test. Hogan, 868 N.W.2d at 133. In conclusion, Sanderson did not observe enough circumstances or substantial factors that would satisfy the threshold of the reasonable suspicion standard under a totality of the circumstances. Arvizu, 534 U.S. at 273. B. Haverford s consent to search was not so attenuated to purge the unlawful extension s taint because of the close causal connection, the lack of intervening circumstances, and the purpose and flagrancy with which Sanderson conducted his investigation. 13

22 As an exception to the exclusionary rule, the attenuation doctrine stands for the proposition that the indirect fruits of an illegal search or arrest should be suppressed when they bear a sufficiently close relationship to the underlying illegality. New York v. Harris, 495 U.S. 14, 19 (1990). When engaging in an attenuation analysis, courts seek to define the point at which exclusion of unlawfully searched or seized evidence no longer serves the purpose of the exclusionary rule: police deterrence. Brown v. Illinois, 422 U.S. 590, 609 (1975) (Powell, J., concurring). This court has noted that the analysis of attenuation should not be determined through a but-for causal connection: Rather, the more apt question in such a case 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 sufficiently distinguishable to be purged of the primary taint. Wong Sun v. United States, 371 U.S. 471, 488 (1963) (quoting Maguire, Evidence of Guilt, 221 (1959)). In order to determine whether the evidence is purged of the primary taint, this Court has established factors for consideration: The temporal proximity of the arrest and the confession, the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct are all relevant. Brown, 422 U.S. at The final Brown factor is considered with particular importance because it is the most closely tied to the rationale of the exclusionary rule to discourage police misconduct. State v. Garcia, 123 S.W.3d 335, 347 (Tenn. 2003); See Brown 422 U.S. at 604. Temporal Proximity. In terms of temporal proximity, the Courts have not offered a bright-line rule to determine whether official misconduct bears a close enough relationship to the illegally obtained evidence. United States v. $186, in U.S. Currency, 590 F.3d 942, 951 (9th Cir. 2009). 14

23 However, the United States Supreme Court has observed as a general matter that [w]hen there is a close causal connection between the illegal seizure and the confession, not only is exclusion of the evidence more likely to deter similar police misconduct in the future, but use of the evidence is more likely to compromise the integrity of the courts. Dunaway v. New York, 442 U.S. 200, 218 (1979). The notion expressed in Dunaway is reflected in both state and federal courts: [A] brief time lapse between a Fourth Amendment violation and consent often indicates exploitation [of the prior illegal police action] because the effects of the misconduct have not had time to dissipate. Garcia, 123 S.W.d 3d at 346 (citing State v. Shoulderblade, 905 P.2d 289, 293 (Utah 1995)); see United States v. Melendez Garcia, 28 F.3d 1046, 1055 (10th Cir.1994); see also People v. Brendlin, 195 P.3d 1074, 1080 (Cal. 2008) (stating that the closer... two events are in time, the more likely the defendant s response was influenced by the illegality ). In the case at hand, the temporal proximity between Sanderson s illegally conducted sobriety tests and Haverford s subsequent consent was a mere twelve seconds. R. 14:69. In United States v. Gregory, the Tenth Circuit held that a space of less than thirty-five seconds tainted the voluntariness of the driver s consent. 79 F.3d 973, (10th Cir. 1996). Similarly, in State v. Hogan, the Supreme Court of Wisconsin found that sixteen seconds was an insufficient amount of time to purge the taint of the prior illegality. 868 N.W.2d at 141. Based on precedent in conjunction with these cases, the time in the Haverford s situation was even less than what these cases have analyzed. In conclusion, since the time between the illegality and the defendant s response was so minimal, it is clear that the effects of the misconduct had not yet dissipated. Garcia, 123 S.W.3d at 346. Intervening Circumstances. 15

24 When analyzing intervening circumstances, courts have stated: Intervening circumstances are intervening events of significance that render inapplicable the deterrence and judicial integrity purposes which justify excluding tainted evidence. In re Ashley W., 821 N.W.2d 706, 721 (Neb. 2012) (citing United States v. Washington, 387 F.3d 1060 (9th Cir. 2004); United States v. Green, 111 F.3d 515, 522 (7th Cir. 1997) (holding that a lawful arrest pursuant to a warrant constitutes a sufficient intervening circumstance). Based on the present facts, the only intervening circumstance between the illegal extension of the stop and Haverford s consent was Sanderson s statement: Alright you re okay to go. I ll let you get on your way then. R. at 14:66. In Garcia, the Supreme Court of Tennessee held that a citizen who has been subjected to a traffic stop is not likely to walk away from continued police questioning, despite being told that he or she is free to leave. Garcia, 123 S.W.3d at 347. Because of the minimal temporal proximity between the time the officer told the defendant that he was free to go and the request for consent, the Supreme Court of Tennessee gave little weight to the evaluation of this factor for a finding of attenuation. Id. Also relevant to the discussion of intervening circumstances is the notion of dispelling particular doubt as to whether one is free to consent. See Hogan, 868 N.W.2d at 142. In Hogan, as was the case here, the defendant believed if he did not comply with the officer s requests it would be used against him. Id. The Wisconsin Supreme Court held that nothing in the officer s request would have dispelled that belief when all he did was re-approach the driver and request consent. Id. at 142. During the course of the traffic stop, Haverford asked Sanderson several times if he could leave, to which Sanderson refused. R. at 11:6-7, 12: These refusals would have a caused a person in Haverford s position to be uncertain as to whether or not he must comply with an 16

25 officer s future requests. Id. When Sanderson reapproached Haverford, his request to search the vehicle did nothing to dispel any uncertainty Haverford had developed as to whether he was free to decline or not. R. at 12:69-74; cf. State v. Hogan, 868 N.W.2d 124, 142 (Wis. 2015). Furthermore, since Sanderson s approach following the free-to-go statement was separated by such a short amount of time, the fact that he made such a statement bears little weight and value in attenuating the illegal extension from the request to search. See Garcia, 123 S.W.3d at 347. In conclusion, the free-to-go statement was not a sufficient intervening circumstance that would have rendered the justifications for excluding evidence. Flagrancy and Purpose. Under the third Brown factor, courts determine whether police had flagrantly and purposefully exploited illegal conduct by analyzing: (1) [T]he impropriety of the official s misconduct was obvious or the official knew at the time that his conduct was likely unconstitutional but engaged in it nevertheless; and (2) the misconduct was investigatory in design and purpose and executed in the hope that something might turn up. Brown, 422 U.S. at 605; United States v. Simpson, 439 F.3d 490, 496 (8th Cir. 2006). The design of an investigatory stop is generally purposeful and flagrant when: [A]ctions were undertaken in an effort to advance investigation or to embark on a fishing expedition in the hopes that it would lead to a confession or other useful evidence. Such actions would undermine the purpose of the Fourth Amendment, and therefore are relevant to this analysis that ultimately examines whether suppression is necessary for purposes of deterrence or judicial integrity. United States v. Reed, 349 F.3d 457, (7th Cir. 2003) (emphasis added). Courts cite a number of factors pertinent to the determination that law enforcement has engaged in an impermissible fishing expedition. United States v. Fernandez, 18 F.3d 874 (10th Cir. 1994). In Fernandez, the court resolved that consent was tainted by the unlawful seizure of defendant. Id. at 883. There, defendant was pulled over by officers for excessively tinted 17

26 windows and improper lane travel. Id. at 875. During the stop s initiation, the officer sensed a tension in the air and noted defendant s nervous demeanor. Id. at 880. As a result, defendant was put to a series of questions and requests concerning drugs, weapons, nervousness, and whether the officer may search the vehicle. Id. at The court reasoned: [T]he illegal detention here had a quality of purposefulness in that [the officer] continued to detain [defendant] based solely on a tension in the air and his vague hunch that something was afoot, with the hope that something might turn up. Fernandez, 18 F.3d at 883 (10th Cir. 1994) (quoting Brown v. Illinois, 422 U.S. 590, 605 (1975)). In the case at hand, it is apparent that Sanderson had embarked on a fishing expedition for drug-related evidence. Like Fernandez, where the officer prolonged an otherwise lawful stop on suspect circumstances (tension and nervousness), here Sanderson was convinced by similar circumstances that Haverford was in possession of or on controlled substances. R. at 11:8-11. Just as in Fernandez, Haverford was pressed on unrelated matters through a series of questions, specifically on the use or possession of drugs. R. at 12:24-25, 14:71. It follows, then, that Sanderson s motives for extending the seizure had an air of purposefulness [and] hope that something might turn up. Furthermore, Sanderson hastily jumped to the conclusion that he had discovered a portable meth lab based on the discovery of a single chemical and attendant beakers. The State may contend that Sanderson was operating under an honest, good-faith belief in his investigation of drug-related matters. See United States v. Simpson, 439 F.3d 490, 496 (8th Cir. 2006) (holding that officer s conduct was not flagrant because there was no purposeful effort to gather evidence against defendant, but rather an honest mistake of fact as to the identity of the suspect). However, the record makes clear that Sanderson had no basis for an honest, good-faith belief to investigate for drugs. Conscious of the fact that he was not a drug- 18

27 recognition expert, Sanderson impulsively concluded that Haverford had or was under the influence of drugs merely on the basis of nervousness and an uncorroborated pupil examination. In conclusion, the circumstances demonstrate that Sanderson s flagrant misconduct was purposefully directed at the uncovering of drug-related evidence. C. Haverford was constructively seized when Officer Sanderson reapproached his vehicle because, based on a totality of the circumstances, a reasonable person in Haverford s position would not have felt free to terminate the encounter. A warrantless search or seizure carried out by law enforcement is per se unreasonable under the Fourth Amendment. Katz v. United States, 389 U.S. 347, 357 (1967). The general rule is that a seizure occurs when an officer by means of physical force or show of authority has in some way restrained the liberty of a citizen. United States v. Mendenhall, 446 U.S. 544, 553 (1980) (emphasis added). More specifically, whether the officer seizes by means of force or authority, there must be actual submission on the part of the subject. Brendlin v. California, 551 U.S. 249, 254 (2007); See California v. Hodari, 449 U.S. 621 (1991). Accordingly, 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. Mendenhall, 446 U.S. at 554. But not all encounters with law enforcement invoke Fourth Amendment protections. Florida v. Bostick, 501 U.S. 429 (1991). There are three types of police-citizen encounters: [C]onsensual encounters which do not implicate the Fourth Amendment; investigative detentions which are Fourth Amendment seizures of limited scope and duration and must be supported by a reasonable suspicion of criminal activity; [and] arrests, the most intrusive of Fourth Amendment seizures and reasonable only is supported by probable cause. United States v. Davis, 94 F.3d 1465, 1468 (10th Cir. 1996); see also United States v. Sokolow, 490 U.S. 1, 7 (1989); Michigan v. Chesternut, 486 U.S. 567, (1988); Hayes v. Florida, 470 U.S. 811, (1985). 19

28 These categories are not rigid; what starts as a consensual encounter can develop into an investigatory stop if in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Mendenhall, 446 U.S. at 554. Thus, questioning alone does not effectuate a seizure unless the surrounding conditions are so intimidating as to demonstrate that a reasonable person would have believed he was not free to leave if he had not responded. I.N.S. v. Delgado, 466 U.S. 210, 216 (1984). So long as the person to whom questions are directed is able to disregard the questions and walk away, there is no intrusion upon that person s Fourth Amendment protections. Mendenhall, 446 U.S. at 554. In Mendenhall, DEA agents approached defendant after observing conduct associated with those unlawfully carrying narcotics. Id. at 547. The agents requested identification and then asked defendant to accompany them to their office. Id. at 548. It was at this juncture in which the Court addressed whether defendant was seized for purposes of the Fourth Amendment. Id. at 555. According to the court, defendant was not seized by virtue of the fact that law enforcement approached, requested identification, and posed a few questions: In short, nothing in the record suggests that the respondent had any objective reason to believe that she was not free to end the conversation in the concourse and proceed on her way, and for that reason we conclude that the agents' initial approach to her was not a seizure. Mendenhall, 446 U.S. at 555. Among the circumstances discussed, that the agents did not summon the respondent to their presence, was considered relevant to the court s conclusion that a reasonable person would have themself free to leave. Id. Consistent with Mendenhall, the traffic-stop and subsequent seizures in this case placed Sanderson in a position of authority over Haverford. See Delaware v. Prouse, 440 U.S. 648, 657 (1979) (discussing that traffic-stops involve an unsettling show of authority ). 20