ROBERT BLACK, v. U.S.

Transcription

1 Team No. 32 IN THE Supreme Court of the United States ROBERT BLACK, v. U.S. Petitioner, Respondent. On Writ of Certiorari to the United States Court of Appeals for the Thirteenth Circuit BRIEF FOR PETITIONER

2 TABLE OF CONTENTS TABLE OF AUTHORITIES.... iv STATEMENT OF QUESTIONS PRESENTED.. 1 STATEMENT OF JURISDICTION SUMMARY OF ARGUMENT STATEMENT OF FACTS.. 4 A. Factual Background Agent Schroder and his DEA team s extensive twenty-four hour surveillance 2. Agent Schroder looked inside a Paper Fortress receptacle containing shredded paper and intact documents 3. The DEA had to use sophisticated software to reconstruct documents in order to obtain a search warrant for A&L s offices 4. Agent Schroder used the reconstructed shredded documents to obtain a search warrant for A&L 5. Defense Counsel Larry Frazier, in arguing for a motion to suppress the evidence obtained by Agent Schroder, calls damaging witness at trial 6. Two days after conviction, Defense Counsel Larry Frazier was indicted in connection with Black s methamphetamine operation 7. After Frazier s Indictment, Black was assigned Federal Public Defender Gary Cohen who unsuccessful argued that Black has ineffective assistance of counsel 7 B. Procedural History ARGUMENT 8 I. THE GOVERNMENT INFRINGES UPON AN INDIVIDUAL S REASONABLE EXPECTATION OF PRIVACY WHEN IT REMOVES OBLITERATED PAPER SHREDS AND RECONSTRUCTS THEM USING SOPHISTICATED SOFTWARE WITHOUT A WARRANT 8 i

3 A. A Warrant is Required for the Government to Use Sophisticated Optical Character Recognition Software to Reconstruct Miniscule Pieces of Paper Because It Is A Search DEA agents used sophisticated scanning and optical characterrecognition software The advanced DOJ software was not available to public But for the sophisticated software, the DEA agents would have had to physically intrude upon Black s office buildings to determine that methamphetamine ingredients were inside.13 B. Black Had A Subjective and Objective Expectation of Privacy in Both His Virtually Destroyed Documents And His Paper Fortress Receptacle Black had a reasonable expectation of privacy in his documents after he took extra steps to obliterate them before leaving them in the receptacle 14 a. Black s expectation of privacy in the miniscule document pieces was subjectively reasonable.. 14 b. Black s expectation of privacy in the miniscule document pieces was objectively reasonable Black had a reasonable expectation of privacy of his Paper Fortress receptacle 16 a. Black had a subjective expectation of privacy in the Paper Fortress receptacle. 16 b. Black s had an objective expectation of privacy in the Paper Fortress receptacle. 16 C. Prolonged 24-Hour Visual Surveillance May Be A Search Under the Fourth Amendment. 18 II. THE SECRET CONSPIRATORIAL CRIMINAL ACTIVITY AND SUBSEQUENT INDICTMENT OF TRIAL COUNSEL FRAZIER WITH UNINDICTED CO- CONSPIRATOR REDMAN GAVE RISE TO A CONFLICT OF INTEREST THAT DEPRIVED BLACK OF HIS SIXTH AMENDMENT RIGHT TO COUNSEL 19 A. Trial Counsel Frazier s Conduct Must Be Analyzed Under Cuyler s Per Se Exception Because His Behavior Constituted An Actual Conflict of Interest That Adversely Affected Frazier s Performance. 19 ii

4 1. An actual conflict of interest existed between Frazier and Black because Frazier actively participated in and assisted unindicted co-conspirator Redman in the methamphetamine operation Frazier s actual conflict of interest adversely affected his performance at trial.. 23 B. Under Strickland, Trial counsel Frazier s performance was reasonably deficient, and this deficient performance prejudiced Black s defense Counsel Frazier s performance at the district level was deficient and could not meet an objective standard of reasonable effective assistance under professional norms 25 C. Counsel Frazier s deficient performance clearly prejudiced Black s defense. 26 CONCLUSION iii

5 TABLE OF AUTHORITIES CASE LAW Beets v. Scott, 65 F.3d 1258 (5th Cir. 1995). 20, 25, 27 Boyd v. United States, 116 U.S. 616 (1886) 9 Brownlee v. Haley, 306 F.3d 1043 (11th Cir. 2002). 25 California v. Greenwood, 486 U.S. 35 (1988). 9-10, Campbell v. Rice, 302 F.3d 892 (9 th Cir. 2001) Cuyler v. Sullivan, 446 U.S. 335 (1980)... 19, 21, 23 Ex parte Jackson, 96 U.S. 727, 733, (1877) 10 Garcia v. Bunnell, 33 F.3d 1193 (9th Cir. 1994), cert. denied, 514 U.S (1995) 20 Glasser v. United States, 315 U.S. 60 (1942). 20 In Florida v. Jardines 133 S.Ct (2013) 18 In re Application of U.S. for an Order Authorizing Disclosure of Location Info. of a Specified Wireless Tel., Katz v. US, 849 F. Supp. 2d 526, 556 (D. Md. 2011) U.S. 347 (1967) , 13-14, 16 Kyllo v. United States, 533 U.S. 27 (2001). 8-9, 11-13, 19 Lockhart v. Terhune, 250 F.3d 1223 (9th Cir. 2001) Mannhalt v. Reed, 847 F3d. 576 (9th Cir. 1988) 23 Micken v. Taylor, 535 U.S. 162 (2002). 20 Oliver v. United States, 466 U.S. 170 (1984) 17 iv

6 Powell v. Alabama, 287 U.S. 45 (1932). 20 Rakas v. Illinois, 439 U.S. 128 (1978) , Rubin v. Gee, 292 F.3d 396, 402 (4th Cir. 2002) 25 S2 Automation LLC v. Micron Tech., Inc., 2012 WL (D.N.M. Aug. 9, 2012)...12 Schmerber v. California, 384 U.S. 757 (1966). 10 Segura v. United States, 468 U.S. 796 (1984). 10 Silverthorne Lumber Co. v. United States, 251 U.S. 385, (1920) 13 Strickland v. Washington, 466 U.S. 668 (1984) , 20, 25, 27 United States v. Arango, 912 F.2d 441 (10th Cir. 1990).. 17 U.S. v. Allen, 831 F.2d 1487 (1987).. 23, 24 United States v. Chadwick, 433 U.S. 1 (1977) U.S. v. Christakis, 238 F.3d 1164 (9th Cir. 2001) U.S. v. Hearst, 638 F.2d 1190 (9th Cir. 1980), cert. denied, 451 U.S. 938 (1981)...20 United States v. Jones, 132 S. Ct. 945 (2012). 11, United States v. Maynard, 615 F.3d 544, 566 (D.C. Cir. 2010), aff'd in part sub nom. United States v. Jones, 132 S. Ct. 945 (2012) 18 U.S. v. Mett, 65 F.3d 1531 (9th Cir. 1995). 21 U.S. v. Miskinis, 966 F.2d, 1263 (9th Cir. 1992).. 24 Wiggins v. Smith, 539 U.S. 510 (2003). 25, 26 Williams v. Taylor, 529 U.S. 362 (2000) v

7 United States v. Terry, 702 F.2d 299 (2d Cir. 1983) 9, Wood v. Georgia, 450 U.S. 261 (1981) CONSTITUTIONAL PROVISIONS U.S. Const. amend IV , 17 STATUTES 28 U.S.C (c). 2 RULES Fed. R. Crim. P. 33(b)(2). 8 OTHER AUTHORITIES 10 Sheet Cross Cut, STAPLES.COM, Shredder/product_ (last visited Feb. 25, 2014) Forensic Services, DEPARTMENT OF JUSTICE, (last visited Feb. 25, 2014) 12 vi

8 vii

9 STATEMENT OF QUESTIONS PRESENTED I. Does the recovery and sophisticated software-enhanced reconstruction of documents shredded beyond recognition obtained from a paper receptacle violate the original owner s fourth amendment rights? II. Does the secret conspiratorial criminal activity and subsequent indictment of trial counsel with an unindicted co-conspirator of his client give rise to a conflict of interest such that it deprives the client of his Sixth Amendment right to counsel? 1

10 STATEMENT OF JURISDICTION The Thirteenth Circuit Court of Appeals affirmed the judgment of the United States District Court for the District of Jensen. Black timely filed a petition for writ of certiorari. This Court granted the petition. This Court has jurisdiction over this case pursuant to 28 U.S.C. 1254(a). 2

11 SUMMARY OF ARGUMENT Both the district court and the Thirteenth Circuit Court of Appeals erred in denying Black s motion to dismiss. Both courts mistakenly decided that Black s obliterated papers were abandoned trash on a public corner. Resulting from this error, the courts were unable to reach the finding that a search occurred both when the government opened the receptacle and when it gained information by using sophisticated software that was not in general public use to explore a constitutionally protected area. Furthermore, because of the mistaken trash abandonment analysis, the court did find that Black had subjective and objective expectation of privacy. Additionally, Both the district court and the Thirteenth Circuit Court of Appeals erred by denying Black s motion for a new trial. Both courts failed to find that the secret conspiratorial criminal activity and subsequent indictment of trial counsel Frazier with unindicted co-conspirator Redman gave rise to a conflict of interest, thus depriving Black of his Sixth Amendment right to counsel at trial. Additionally, Frazier s performance at trial was deficient because he eliminated any expectation of privacy claim Black may have had to support his Fourth Amendment claim. Counsel Frazier s deficient performance clearly prejudiced Black s defense, thus both courts erred by not finding that Frazier was ineffective in his role as counsel, violating Black s Sixth Amendment rights. Therefore, it is respectfully submitted that this Court should reverse the judgment of the Thirteenth Circuit Court of Appeals. 3

12 STATEMENT OF FACTS A. Factual Background Plaintiff Robert Black s motion to suppress arose from the warrantless search and seizure of documents by the Drug Enforcement Agency (DEA). (R. 4-6). Black s motion for a new trial arose from his right to counsel being violated after his attorney s clear conflict of interest during the time of his representation. (R. 5). 1. Agent Schroder and his DEA team s extensive twenty-four hour surveillance In the spring of 2011, the DEA began investigating Black, believing that Black was involved in a high-volume, industrial-level methamphetamine manufacturing operation in the suburbs of the capital city of Jensen. (R. 1). Agent Frank Schroder had a theory that Black was using A&L Abatement (A&L), Black s legitimate asbestos and lead paint abatement business, as a cover for the methamphetamine operation. (R. 1). Agent Schroder and his team set up twenty-four hour surveillance on both Black and A&L that continued for months. (R. 1). During this continuous surveillance, the DEA began collecting and searching through the garbage from Black s household garbage as well as from the dumpster in the alleyway behind A&L. (R. 1). 2. Agent Schroder looked inside a Paper Fortress receptacle containing shredded paper and intact documents In the early evening hours of July 6, 2011, Agent Schroder observed Black wheel a large blue receptacle out of one of the garbage bays at A&L to the curb of the public street in front of the A&L building. (R. 1). Paper Fortress, Inc. (Paper Fortress) and a castle-like emblem were printed on the sixty-five gallon, plastic blue container. (R. 1; 4). The Paper Fortress container had an attached, hinged lid, but it was not secured with a lock. (R. 2). Black left the Paper Fortress container in the pre-arranged location to be picked up by Paper Fortress employees. (R. 2; 4). Immediately after Black left, Agent Schroder lifted the lid of the blue 4

13 container to find a pile of shredded documents with a larger pile of intact documents underneath. (R. 2). Those contents were taken to the local DEA field office for review. (R. 2). Agent Schroder then saw Paper Fortress truck pull up to the curb in front of A&L. (R. 2). Because the container was empty, the Paper Fortress employees drove away, leaving the empty Paper Fortress container at the pick-up location. (R. 2). 3. The DEA had to use sophisticated software to reconstruct documents in order to obtain a search warrant for A&L s offices Later in the evening on July 6, 2011, the DEA went though the documents (R. 2). The DEA team found nothing of evidentiary value in the intact documents. (R. 2). When they looked at the shredded documents, they spent several unsuccessful hours attempting to manually reconstruct at least one page of the shredded documents. (R. 2). The DEA agents then contacted the Department of Justice s (DOJ) Forensic Services Department for assistance with document reconstruction. (R. 2). The DEA agents used the DOJ s sophisticated scanning and optical character recognition software to reconstruct A&L s shredded documents. (R. 2). 4. Agent Schroder used the reconstructed shredded documents to obtain a search warrant for A&L Among the reconstructed shredded documents, the DEA agents found purchase orders and invoices for various pieces of laboratory equipment and chemicals that could have potentially been used to set up and operate a methamphetamine lab. (R. 2-3). Also included among the shredded documents were various tax documents and business records. (R. 3). These documents suggested that Black had controlling interest in several small companies. (R. 3). Agent Schroder used the information gathered from the technologically reconstructed shredded documents to obtain a search warrant for the A&L offices. (R. 3). Upon execution of the search warrant, DEA agents found numerous pieces of evidence implicating Black and several of his employees, who all appeared to be part of the methamphetamine production and conspiracy. (R. 3). That evidence, combined with the information gathered from the 5

14 technologically reconstructed shredded documents, led DEA agents to find the large methamphetamine operation, leading to his arrest. (R. 3). 5. Defense Counsel Larry Frazier, in arguing for a motion to suppress the evidence obtained by Agent Schroder, calls damaging witness at trial Defense counsel Larry Frazier filed a motion to suppress the evidence obtained from the search, seizure, and reconstruction of the documents obtained from the Paper Fortress container on the grounds of a Fourth Amendment claim. (R. 3). At the hearing he called Joan Parker, an employee of Paper Fortress. (R. 3). She testified that she discussed the various options offered by her company with Black, and that he contracted with the company for a bundle of its basic services. (R. 3-4). The contract provided to the court stated that for, $65 per month, Paper Fortress was responsible for weekly, curbside pickup of one standard container of documents. (R. 4). It also indicated that Black paid a refundable deposit of $100 to use one of Paper Fortress receptacles. (R. 4). Parker testified that she offered Black more secure services, which he declined. (R. 4). The services offered included in-office pick-up instead of curbside, a secure locked container, and shredding and incineration instead of standard recycling. (R. 4). Frazier argued that the DEA violated Black s Fourth Amendment right by seizing and reconstructing the documents left out for Paper Fortress to pick up. (R. 4). The motion was denied, and Black was tried and convicted before a federal jury. (R. 4). 6. Two days after conviction, Defense Counsel Larry Frazier was indicted in connection with Black s methamphetamine operation Ten days after being found guilty, Black filed for a new trial under Rule 33(b)(2) of the Federal Rules of Criminal Procedure. (R. 4-5). Just two days after Black s conviction, and unbeknownst to Black, it came to light that Frazier was indicted for money laundering in connection with Black s methamphetamine operation and Black s former associate Redman. (R. 5). During the course of Black s original trial, a Suspicious Activity Report (SAR) on Frazier was conducted and two days after Black s conviction, Louisiana unsealed the indictment. (R. 5). Frazier assisted Redman in making numerous 6

15 deposits in multiple banks around Louisiana to help launder money earned in the methamphetamine operation, as well as help him buy real estate and invest in a few small businesses to generate legitimate income. (R. 5). Prior to the indictment being unsealed, neither the DEA nor the Jensen US Attorney s Office knew of the investigation or of Frazier s connection to Redman or of Redman s connection to Black. (R. 5). 7. After Frazier s Indictment, Black was assigned Federal Public Defender Gary Cohen who unsuccessful argued that Black has ineffective assistance of counsel After hearing about the indictment, Black contacted the Federal Public Defender, and was assigned Assistant Federal Public Defender Gary Cohen to represent him. (R. 5). At the hearing for the motion for a new trial, Cohen re-argued the Fourth Amendment claim. (R. 5). He further argued that Black was deprived of his Sixth Amendment right to adequate counsel in light of the recent discovery of Frazier s indictment for money laundering on grounds that Frazier was representing the interests of the unindicted co-conspirator Redman. (R. 5). He argued that there was a conflict of interest given the circumstances, but the motion was denied orally from the bench on the grounds that Frazier himself was unaware of the indictment during the timeframe encompassing Black s trial. (R. 5-6). Although appearing harried or uncharacteristically nervous at times, the district court did not see anything glaringly wrong with his handling of the case per se. (R. 6). B. Procedural History In August 2011, this criminal action was initiation when Black was charged in the U.S. District Court for the District of Jensen for multiple violations of the Federal Controlled Substances Act and associated conspiracies. (R. 3). Before the trial, Frazier filed and argued several pretrial motions. (R. 3). Frazier filed a motion to suppress, arguing that the evidence obtained as a result of the search, seizure, and reconstruction of the shredded documents from the Paper Fortress container should have been suppressed. (R. 3). Frazier argued suppression on the grounds that the seizure was violative of Black s Fourth Amendment rights. (R. 3-4). 7

16 After hearing argument on the motion, the district court denied the motion to suppress. (R. 4). In August 2012, Black was tried and convicted of all charges before a federal jury. (R. 4). Ten days after the guilty verdict was rendered, Black timely moved for a new trial under Rule 33(b)(2) of the Federal Rules of Criminal Procedure. 1 (R. 4). Cohen litigated the Fourth and Sixth Amendment issues in front of the Thirteenth Circuit Court of Appeals. (R. 5). The Thirteenth Circuit denied Cohen s motions and affirmed Black s conviction. (R. 6). Black timely petitioned the Supreme Court of the United States for a writ of certiorari. (R. 7). The Supreme Court granted the writ on the Fourth Amendment issue regarding the recovery and reconstruction of shredded documents and the Sixth Amendment issue regarding a claim for ineffective assistance of counsel arising from a conflict of interest. (R. 7). ARGUMENT I. THE GOVERNMENT INFRINGES UPON AN INDIVIDUAL S REASONABLE EXPECTATION OF PRIVACY WHEN IT REMOVES OBLITERATED PAPER SHREDS AND RECONSTRUCTS THEM USING SOPHISTICATED SOFTWARE WITHOUT A WARRANT Both the district court and the Thirteenth Circuit Court of Appeals erred in denying Black s motion to suppress because Agent Schroder and his federal DEA team warrantlessly searched and seized Black s paper receptacle and obliterated documents. The DEA team s actions resulted in multiple violations of Black s Fourth Amendment right to be free from unreasonable searches and seizures. Katz v. US, 389 U.S. 347, 353 (1967). Hence, this Court must reverse the Thirteenth Circuit s ruling. The DEA could not have obtained information regarding Black s other businesses without the use of sophisticated DOJ software. This Court previously established that a search occurs when the government gains information by using a device that is not in general public use to explore a constitutionally protected area. Kyllo v. United States, 533 U.S. 27, 40 (2001). A search of this nature requires that a search warrant be obtained beforehand. Id. The lower courts failed to apply this analysis 1 Any motion for a new trial grounded on any reason other than newly discovered evidence must be filed within 14 days after the verdict or finding of guilty. Fed. R. Crim. P. 33(b)(2). 8

17 to the sophisticated scanning software used by the DEA agents to reconstruct Black s exceptionally shredded documents. Even without reaching the software issue, the DEA team invaded Black s reasonable expectation of privacy in both the receptacle and in the documents that were shredded beyond recognition. When considering the reasonableness of asserted privacy expectations, the Court has recognized that no single factor will be determinative. Rakas v. Illinois, 439 U.S. 128, (1978). Accordingly, the general standard to determine whether the government conducted an unreasonable search is based on whether the individual had (1) a subjective expectation of privacy that (2) society accepted as reasonable. Katz, 389 U.S. at 362 (Harlan, J., concurring). In the trash-searching context, this Court has rejected the notion that there is expectation of privacy in trash left on a public corner. California v. Greenwood, 486 U.S. 35 (1988). However, some circuit courts have also recognized that shredding documents establishes a reasonable expectation of privacy because that is an action that is customary for those who want additional privacy in their documents. United States v. Terry, 702 F.2d 299, 309 (2d Cir. 1983). Both courts erred by not utilizing the specific Kyllo sophisticated software analysis or the general Katz subjective and objective reasonableness analysis. (R. 4; 6). See Kyllo, 533 U.S. at 40; Katz, 389 U.S. at 362 (Harlan, J., concurring). Consequently, both lower courts incorrectly truncated their analyses after misapplying Greenwood and finding that Black had abandoned his papers on a public curb. Greenwood, 486 U.S. at As a result, both courts failed to reach the issue of whether using sophisticated software required a warrant or whether Black had a reasonable expectation of privacy in the obliterated papers. Therefore, it is respectfully submitted that this Court should reverse the ruling of the Thirteenth Circuit Court of Appeals. A. A Warrant is Required for the Government to Use Sophisticated Optical Character Recognition Software to Reconstruct Miniscule Pieces of Paper Because It Is A Search This Court has long established constitutional protection for the sanctity of the privacies of life. Boyd v. United States, 116 U.S. 616, 630 (1886) (stating the principles of the Fourth Amendment apply 9

18 to all invasions on the part of the government and its employe[es] of the... privacies of life ). The Fourth Amendment explicitly provides that [t]he right of the people to be secure in their... papers... against unreasonable searches and seizures, shall not be violated. U.S. Const. amend IV. 2 Specifically, the Fourth Amendment protects people, not places. Katz, 389 U.S. at 351 (ultimately finding that a search occurs when the government uses sense enhancing technology unavailable to the public to gain information that would have otherwise been obtained through physical intrusion). Therefore, the fundamental value that the Fourth Amendment protects is personal privacy. Segura v. United States, 468 U.S. 796, 810 (1984); Katz, 389 U.S. at 350; Schmerber v. California, 384 U.S. 757, 767 (1966) (all affirming that personal privacy is paramount to the Fourth Amendment). The Framers of the Fourth Amendment understood that unreasonable searches of papers infringe upon an individual s privacy. Greenwood, 486 U.S. at 46 (Brennan, J., dissenting) (dissent examining the historical expectation of privacy in containers). As early as 1877, this Court acknowledged that the contents of [l]etters and sealed packages... in the mail are as fully guarded from examination and inspection. Id. (citing Ex parte Jackson, 96 U.S. 727, 733, (1877)). The Katz test broadly defines that certain police activity violates an individual s reasonable expectation of privacy when (1) there is a subjective expectation of privacy, and (2) society is willing to recognize that expectation as reasonable. Katz, 389 U.S. at 362 (Harlan, J., concurring) (holding that an individual who shuts the door of a public telephone booth is entitled to a reasonable expectation of privacy and that a warrant is required to have electronic surveillance of the booth). However, the Katz formulation is not determinative because there is no single test that establishes whether an unreasonable governmental intrusion of privacy has occurred. See Rakas, 439 U.S. at 152 (the ultimate question is whether one's claim to privacy from government intrusion is reasonable in light of the totality of the 2 The Fourth Amendment states: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const. amend IV. 10

19 circumstances); see also United States v. Jones, 132 S. Ct. 945, 950 (2012) ( Fourth Amendment rights do not rise or fall with the Katz formulation ). When a case involves advanced technology, such as the instant one, the appropriate test will find that the government violates an individual s recognized expectation of privacy when it (1) uses senseenhancing technology (2) that is unavailable to the public (3) to gather information that could not otherwise have been obtained without physical intrusion into constitutionally protected area without a warrant. Kyllo, 533 U.S. at DEA agents used sophisticated scanning and optical character-recognition software When determining whether the DEA agents actions constituted an unreasonable search, both lower courts improperly failed to apply the Kyllo sophisticated device analysis to the facts. Id. at 40. This Court has found that government violates one s recognized expectation of privacy when it uses sophisticated technology that is unavailable to the public to gather information from a constitutionally protected place without a warrant. Id. In Kyllo, police officers on a public street used a thermal-imaging device to scan the defendant s home to determine if the amount of heat released from the building was consistent with the heat emitted from high-intensity lamps used to grow marijuana. Id. at Using the Katz framework, the Court analyzed whether an individual has an expectation of privacy in the home that society recognizes. Id. at 34. The Court found it was well-established that society acknowledges the expectation of privacy in the interior of the home. Id. The Court stated that allowing using the use of a thermal imaging device, which was not available to the public, to gain information about the inside of the home, would erode the privacy guaranteed by the Fourth Amendment. Id. Thus, the Court concluded that the information gathered by the thermal imager was the product of a search, requiring a warrant. Id. at 35. To satisfy the first prong of the analysis, the government has to use sophisticated software. Here, the DEA agents were only able to reconstruct the documents using sophisticated scanning and optical character recognition software. (R. 2). Similar to the advanced technology in a thermal imaging 11

20 device, 3 the optical character-recognition software used in this case involves complicated technology designed to recognize and manipulate documents so that they can be searched. S2 Automation LLC v. Micron Tech., Inc., 2012 WL , n.3 (D.N.M. Aug. 9, 2012) (discussing optical character recognition technology). 4 Therefore, the sophisticated technology requirement under Kyllo was satisfied when the DEA agents used sophisticated DOJ software to reassemble the documents. See Kyllo, 533 U.S. at The advanced DOJ software was not available to public The DOJ software that the DEA agents used was not available to the general public. The second prong of Kyllo states that inaccessibility to the public is required to establish a Fourth Amendment violation. Id. Under these facts, Agent Schroeder specifically contacted the DOJ s Forensic Services Department in order to gain access to the sophisticated software. (R. 2). While not stated specifically, it can be inferred that the DOJ s Forensic Services Department does not use software that is available to the public because the Department consists of highly trained specialists. 5 Therefore, using DOJ technology not available to the public satisfies Kyllo s second prong. 3 A thermal imaging device converts radiation into images based on relative warmth black is cool, white is hot, shades of gray connote relative differences; in that respect, it operates somewhat like a video camera showing heat images. Kyllo, 533 U.S. at Micron Tech defines optical character recognition as: A technology process that translates and converts printed matter on an image into a format that a computer can manipulate (ASCII codes, for example) and, therefore, renders that matter text searchable. OCR software evaluates scanned data for shapes it recognizes as letters or numerals. All OCR systems include an optical scanner for reading text and software for analyzing images. Id. 5 The Department provides training and technical assistance to forensic specialists, investigators, and prosecutors in topics including DNA, expert witness development, odontology, pathology, drug analysis, firearms, latent print examinations, physical anthropology, behavioral science, questioned documents, toxicology, forensic nursing, crime scene processing, forensic photography, forensic accounting, and computer evidence. Forensic Services, DEPARTMENT OF JUSTICE, (last visited Feb. 25, 2014). 12

21 3. But for the sophisticated software, the DEA agents would have had to physically intrude upon Black s office buildings to determine that methamphetamine ingredients were inside In order to know if there were methamphetamine products inside Black s office spaces, the DEA agents would have had to make a physically intrusion. The Kyllo court stated that the expectation of privacy in the interior of the home is both deeply rooted in common law and greatly acknowledged as reasonable. Kyllo, 533 U.S. at 34. Like the home, the expectation of privacy in the office is also widely accepted as reasonable. Silverthorne Lumber Co. v. United States, 251 U.S. 385, (1920) ( the rights of a corporation against unlawful search and seizure are to be protected such that the police cannot take papers, books, and documents without a warrant). Black had a reasonable expectation of privacy in his office spaces. Id. The DEA agents would not have found the location of the methamphetamine products without the use of the DOJ software. The scanning software reconstructed the documents. (R. 3.) The information obtained from these documents first gave the basis for the search warrant for the A&L offices. (R. 3). Then, combined with the evidence from the search warrant, the information from the reconstructed letters let the DEA to the location of the methamphetamine operation. (R. 3). Just like in Kyllo, where the police would not have known about the existence of marijuana plants but for the thermal imaging device, here the DEA would not have known what was inside the A&L offices without the use of the DOJ sophisticated scanning software. Kyllo, 533 U.S. at Thus, the third prong of the analysis is satisfied because the police would not have known the location of the methamphetamine operation but for the help from the optical character recognition software. B. Black Had A Subjective and Objective Expectation of Privacy in Both His Virtually Destroyed Documents And His Paper Fortress Receptacle In addition to the sophisticated software analysis, Black s reasonable expectation of privacy can also be established under the Katz test. See Katz, 389 U.S. at 362 (Harlan, J., concurring). The Katz test states certain police activity violates an individual s reasonable expectation of privacy when (1) there is a subjective expectation of privacy, and (2) society is willing to recognize that expectation as reasonable. 13

22 Id. It then follows that the warrantless search and seizure of the paper inside the receptacles left on the curb outside of A&L house would violate the Fourth Amendment only if Black manifested a subjective expectation of privacy in the papers and the receptacle that society accepts as objectively reasonable. See Greenwood, 486 U.S. at Black had a reasonable expectation of privacy in his documents after he took extra steps to obliterate them before leaving them in the receptacle a. Black s expectation of privacy in the miniscule document pieces was subjectively reasonable Black had a subjectively reasonable expectation of privacy in the tiny document shreds. A person does not have a reasonable expectation of privacy in anything that is knowingly expose[d] to the public. Katz, 389 U.S. at 351. In general, trash left for collection in an area accessible to the public garners no expectation of privacy. Greenwood, 486 U.S. at 41. However, when one seeks to preclude inspection by others of private papers, he or she may retain a privacy interest by first shredding or burning the private papers or by hand-delivering the papers to a garbage-grinding machine. Terry, 702 F.2d at 309. There is no expectation of privacy for trash 6 that is exposed to the public. Greenwood, 486 U.S. at In Greenwood, the Court looked to whether it was reasonable to expect privacy in trash bags that were left on a public street in the context of police trash searches. The Court concluded that because trash bags are readily accessible to animals, children, scavengers, snoops, and other members of the public expectations of privacy do not attach. Id. at 40. In Terry, though, the Second Circuit recognized that, under certain circumstances, a person can establish a reasonable expectation of privacy in trash. Terry, 702 F.2d at 309. The Terry court found that because the defendant did not exhibit any behavior 6 While the Petitioner does not concede that Black s obliterated documents are trash, establishing that they were trash does not change the Katz analysis. See Greenwood, 486 U.S. at 39. ( The warrantless search and seizure of the garbage bags left at the curb outside the Greenwood house would violate the Fourth Amendment only if respondents manifested a subjective expectation of privacy in their garbage that society accepts as objectively reasonable.) (emphasis added). 14

23 that would indicate that he took any precautions to make his trash more private. Id. Therefore, because of the lack of privacy interest in the trash, the motion to suppress evidence obtained from trash was denied. Id. Unlike the Greenwood defendants who exposed their garbage to the public sufficiently to defeat their claim to Fourth Amendment protection, when Black obliterated his private documents beyond recognition, he did not expose his private papers to the public. Greenwood, 486 U.S. at 40. Unlike trash that is simply put into a bag and left on the corner, Black took steps before placing his papers on the corner to ensure his privacy. (R. 2). Black s private papers were cut into smaller pieces than strips of paper, which could be put back together by hand. (R. 2). He reasonably relied on the fact that using a shredder that shreds papers beyond recognition, beyond the point of reconstruction by hand, established his expectation of privacy. He took a precaution that would ensure his private information was not exposed to the public because even if the pieces were found, they could not be reassembled by hand. (R. 2). His subjective expectation is even more reasonable because of the advertised benefits of using a cross-cut shredder 7 and the like. Therefore, unlike the Greenwood and Terry defendants who used trash bags to establish privacy, Black had a subjective expectation of privacy in his minuscule scraps of paper. Greenwood, 486 U.S. at 41; Terry, 702 F.2d at 309. b. Black s expectation of privacy in the miniscule document pieces was objectively reasonable Society recognizes an expectation of privacy when one takes normal precautions to maintain 7 Cross-cut shredders shred in two directions for smaller paper fragments and added privacy. For example, the Staples 10-Sheet Cross-Cut Shredder describes its purpose: In addition to shredding paper, the Staples 10-sheet cross-cut shredder can shred credit cards and similar items. The blades reduce paper and plastic to 4-mm by 50-mm chips, which make it almost impossible to reconstitute items in their original forms. Safely discard preapproved credit offers, private information, and client files without fear of thieves getting anything useful from your trash. 10 Sheet Cross Cut, STAPLES.COM, Shredder/product_ (last visited Feb. 25, 2014) (emphasis added). 15

24 privacy. See, e. g., United States v. Chadwick, 433 U.S. 1, 11 (1977) ( By placing personal effects inside a double-locked footlocker, respondents manifested an expectation that the contents would remain free from public examination ); Katz, 389 U.S., at 352 ( One who occupies [a telephone booth], shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world ). Because society recognizes placing personal effects inside a locked footlocker, it is reasonable to conclude that society also recognizes privacy rights when one completely destroys a document beyond recognition. These types of small pieces are also free from public examination because they cannot be reassembled by hand. Additionally, if society did not recognize the expectation of privacy in using, say, cross-cut shredders that provide even more protection than regular shredding, these more sophisticated shredders would not sell commercially because people would think of them as useless if they could not actually protect sensitive information. Thus, because of the nature of the manner in which Black s documents were destroyed, society would recognize his expectation of privacy in those pieces. 2. Black had a reasonable expectation of privacy of his Paper Fortress receptacle a. Black had a subjective expectation of privacy in the Paper Fortress receptacle As previously stated, there is no expectation of privacy in papers that are knowingly exposed to the public, See Katz, 389 U.S. at 351. In this case, by using the closed receptacle provided to him Paper Fortress, it is reasonable to assume that he believed his private documents were safe. (R. 2). This is also clear from the fact he left a large pile of intact documents in the container unattended. (R. 2). Thus, because the Paper Fortress receptacle allowed Black to help shield his private documents from the public, he had a subjective expectation of privacy in the Paper Fortress receptacle. b. Black s had an objective expectation of privacy in the Paper Fortress receptacle As previously stated, society recognizes an expectation of privacy when one takes normal precautions to maintain privacy. Chadwick, 433 U.S. at 11. In this case, for $65 a month, Black 16

25 purchased a service from a company that specializes in the secure disposal of sensitive personal and business documents. (R. 3; 4). Black also paid $100 to use a closed, lidded, Paper Fortress receptacle. (R. 4). He clearly took additional steps and measures to prevent the public from going through his trash. (R. 4). Additionally, with the castle-like logo and Paper Fortress, Inc. printed on the front, it seems reasonable that society would not attribute those characteristics to that of a normal trashcan. (R. 1). Thus, because Black paid $100 to use this lidded receptacle from a secure document disposal company, his expectation of privacy in it is objectively reasonable. c. Black s Paper Fortress receptacle was his effect, thus a warrant was required to search it The paper receptacle that Black used to hold his finely shredded private documents was an effect under the Fourth Amendment. 8 The text of the Fourth Amendment has a close connection to property. Jones, 132 S. Ct. at 949. This Court has stated that the phrase in their persons, houses, papers, and effects would have been superfluous if personal property 9 did not need explicit protection. Id. To decide whether a reasonable expectation of privacy exists, this Court may consider concepts of real or personal property law. Rakas, 439 U.S. at 143, n. 12. Neither ownership nor lawful possession are determinative, however, they are often considered dispositive factors. United States v. Arango, 912 F.2d 441, 445 (10th Cir. 1990). One of the main rights attaching to property is the right to exclude others... and one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of this right to exclude. Rakas, 439 U.S. at 143, n. 12 (citation omitted) (emphasis added). When the government obtains information from a physical intrusion without a warrant, it is a search within the meaning of the Fourth Amendment. Jones, 132 S. Ct. at 949. In Jones, this Court used a trespass theory to support that a warrant is required for GPS surveillance. Id. The Court 8 Recall that the Fourth Amendment states that it is [t]he right of the people to be secure in their persons, houses, papers, and effects.... U.S. Const. amend IV. 9 The Framers of the Constitution would have understood the term effects to be limited to personal, rather than real, property. Oliver v. United States, 466 U.S. 170, 188, n.7 (1984). 17

26 established that a vehicle is an effect under the Fourth Amendment. Id. Then the Court noted that a search occurred because the government physically occupied the defendant s private property, or his effect, for the purpose of obtaining information. Id. This Court also extended this trespassory analysis to dog-sniff cases. In Florida v. Jardines, this Court held that the warrantless dog sniff for drugs on the front porch of the home was a physical invasion of the home, infringing upon one s reasonable expectation of privacy. 133 S.Ct. 1409, (2013). Thus, that was also a search. Id. Like in Jardines and Jones, Agent Schroder intruded upon a constitutionally protected area. See Jones, 132 S. Ct. at 949; Jardines, 133 S.Ct at In this case, Agent Schroder physically intruded into Black s effects by opening the hinged lid on Black s Paper Fortress receptacle. (R. 2). Black paid $100 refundable deposit so that Paper Fortress would provide him with a receptacle for his personal use. (R. 4). Whether Black owned the container is of no consequence because during the time of the contract lawfully possessed or controlled the receptacle, establishing his reasonable expectation of privacy in it. Rakas, 439 U.S. at 143, n. 12. Additionally, in terms of property rights, Black paid $100 to exclude others from using his receptacle. (R. 4). Black had a property interest in the receptacle, making it his effect. Therefore, if the government wished to physically invade and search his effect, like the intrusion upon Jones car, a warrant was first required. Jones, 132 S. Ct. at 949. C. Prolonged 24-Hour Visual Surveillance May Be A Search Under the Fourth Amendment This Court has not decided the issue regarding whether 24-hour visual surveillance is violative of the Fourth Amendment. See United States v. Maynard, 615 F.3d 544, 566 (D.C. Cir. 2010), aff'd in part sub nom. United States v. Jones, 132 S. Ct. 945 (2012) ( This case does not require us to decide whether a hypothetical instance of prolonged visual surveillance would be a search subject to the warrant requirement of the Fourth Amendment. ) However, a recent Maryland district court added that tracking an individual with a GPS device or by tracking their cell phone is much cheaper and easier than tracking them with a surveillance team, so the resource barriers that act as a check against abuse of visual surveillance techniques do not always apply to geolocation tracking. In re Application of U.S. for an 18

27 Order Authorizing Disclosure of Location Info. of a Specified Wireless Tel., 849 F. Supp. 2d 526, 556 (D. Md. 2011) (citations omitted) (emphasis added). Additionally, because the sheer resources it took the DEA to dedicate 24-hour man-power to Black s case, combined with the fact that these tactics are outside of normal police protocol, this Court may find in the future that this type of surveillance for a prolonged period of time requires a warrant. Id. Therefore, because Agent Schroder and his DEA team established visual surveillance for months without a warrant, this may run afoul of the Fourth Amendment. (R. 1). Ultimately, the Agent Schroder and his team of DEA agents conducted two warrantless searches one before the warrantless seizure of the strips and one after with the possibility of a third. See Jones, 132 S. Ct. at 949, Kyllo, 533 U.S. at 35, and Wireless Tel., 849 F. Supp. 2d at 556. Therefore, at minimum, Black is entitled have the fruits of two unlawful searches suppressed. II. THE SECRET CONSPIRATORIAL CRIMINAL ACTIVITY AND SUBSEQUENT INDICTMENT OF TRIAL COUNSEL FRAZIER WITH UNINDICTED CO-CONSPIRATOR REDMAN GAVE RISE TO A CONFLICT OF INTEREST THAT DEPRIVED BLACK OF HIS SIXTH AMENDMENT RIGHT TO COUNSEL A. Trial Counsel Frazier s Conduct Must Be Analyzed Under Cuyler s Per Se Exception Because His Behavior Constituted An Actual Conflict of Interest That Adversely Affected Frazier s Performance Defendants alleging that ineffective assistance of counsel denied them their Sixth Amendment right must generally demonstrate a prejudiced result of the trial. Strickland v. Washington, 466 U.S. 668, 687 (1984). However, an exception to this general rule exists and prejudice is presumed per se in cases involving an actual conflict of interest. Id. at 692. To establish a Sixth Amendment violation under this per se exception, a defendant who raises no objection of ineffective assistance of counsel at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance. Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). In other words, a defendant need not demonstrate actual prejudice, but rather, need only demonstrate that his counsel actively represented conflicting interests. Id. at An actual conflict of interest occurs if the interests of the lawyer and the client diverge during the representation in regards to a material factual or legal issue or to a course of action. Id. at

28 (Marshall, J., concurring in part and dissenting in part). 10 The principal policy behind avoiding this divergence is to protect the defendant's right to a fair trial. See Strickland, 466 U.S. at Proper counsel is critical to [the] ability of the adversarial system to achieve a just and fair result. Id. To ensure this adversarial system, a defendant s right to counsel requires the right to have aid that will produce just results. See Powell v. Alabama, 287 U.S. 45, (1932). Central to the production of these just results is the right to counsel unencumbered by a conflict of interest. See Glasser v. United States, 315 U.S. 60, 70 (1942). Although originally applicable only in contexts of one attorney representing multiple codefendants, courts have expanded the applicability of Cuyler s conflicts of interest application to include personal interest conflicts of the defense counsel. 11 See e.g. Garcia v. Bunnell, 33 F.3d 1193, (9th Cir. 1994), cert. denied, 514 U.S (1995) (analyzed whether defense counsel plan to work for prosecutor's office at the conclusion of defendant's trial constituted ineffective assistance of counsel under Cuyler); U.S. v. Hearst, 638 F.2d 1190, 1193 (9th Cir. 1980) cert. denied, 451 U.S. 938 (1981) (analyzed whether defense counsel had book contract to write about defendant's case constituted ineffective assistance of counsel under Cuyler); but see Beets v. Scott, 65 F.3d 1258 (5th Cir. 1995) (adopted the Strickland Test to deal with ineffective assistance claims that arise from conflicts of interest that do not involve multiple client representation). 1. An actual conflict of interest existed between Frazier and Black because Frazier actively participated in and assisted unindicted co-conspirator Redman in the methamphetamine operation 10 The Cuyler Court noted that this standard is easier to meet than a typical ineffectiveness of counsel claim under Strickland v. Washington. 11 In Micken v. Taylor, 535 U.S. 162, (2002), the Supreme Court specifically reserved the question of what test to apply in a successive representation case. In dicta, the Court expressing skepticism about the circuit courts' extension of Cuyler beyond multiple representation situations. However, the court left open the question of what is the appropriate standard for successive representation cases as well as counsel's personal or financial interests. In fact, the Court has never stated the actual scope of Cuyler or Strickland which has directly lead to a circuit split in applying these tests. 20

29 A criminal defendant's Sixth Amendment right to counsel includes the right to be represented by an attorney with undivided loyalty. See Wood v. Georgia, 450 U.S. 261, 271 (1981). When a defendant raises the right to conflict-free counsel for the first time on appeal, [he] must demonstrate that an actual conflict adversely affected his lawyer's performance. See U.S. v. Mett, 65 F.3d 1531, 1534 (9th Cir. 1995). When a defendant alleges an unconstitutional actual conflict of interest, prejudice must be presumed. See Cuyler, 446 U.S. 335, at 350. An actual conflict of interest arises when counsel favors the interests of an unindicted individual over the interests of his indicted client. Lockhart v. Terhune, 250 F.3d 1223, 1230 (9th Cir. 2001). In Lockhart, the court was faced with determining whether an actual conflict of interest existed where counsel s withholding of information obtained from his client in an unrelated drug and weapons charge led to the guilty charge of his second client indicted on murder. Id. Michael Lockhart was charged with the murder of Lane. Id. at Lockhart was later implicated in, although not charged with, the murder of Terry Cooper. Id. The prosecutor sought to offer evidence of Lockhart s alleged involvement in the Cooper killing to establish Lockhart s identity as the perpetrator in the Lane shooting. Id. A criminalist analyzed the shell casings found at both scenes and concluded that the same guns were used in both incidents. Id. at One of the guns was seized in a drug search of a residence occupied by unindicted Larry Galbert. Id. Galbert was implicated but unindicted in the Cooper murder. Id. Richard Hove was appointed as Galbert s attorney when he was charged with possession of drugs and the pistol. Id. Several months later, Hove was appointed to represent Lockhart when he was charged with murder of Lane. Id. After being appointed to represent both Lockhart and Galbert, Hove learned that the pistol found at Galbert's residence was one of the weapons used to kill Lane and Cooper. Id. Hove failed to discuss his findings with the court or with Lockhart and Gilbert, and instead, had Lockhart and Galbert execute waivers of conflict of interest. Lockhart was later convicted for murder of Lane. The Court of Appeals held that Lockhart's Sixth Amendment rights were violated since the trial counsel had an actual conflict of interest. Id. at The court reasoned that Hove simultaneously 21