Supreme Court of the United States

Transcription

1 No In The Supreme Court of the United States JAMES T. OLIVER, Petitioner, v. THE STATE OF CLINTONIA, Respondent. On Writ Of Certiorari To The Supreme Court of Clintonia BRIEF FOR THE PETITIONER Team A, Counsel for Petitioner

2 TABLE OF CONTENTS QUESTIONS PRESENTED... v STATEMENT OF JURISDICTION... v STATEMENT OF THE CASE... 2 ARGUMENT... 9 I. The Rational Basis Test Is Based on the Legitimacy of the Government Interest At the Time of Challenge, and Section Clint. Stat. Is Not Rationally Related to Any Legitimate Government Interests II. Private Jones Search of the USB Drive Violated the Private Search Doctrine, Creating a Physical Trespass that Fails the Jones Test and Makes the Images Inadmissible Fruits of an Unconstitutional Search III. Private Jones Did Not Demonstrate a Reasonable Reliance on Jacobsen, Thus the Images are Not Admissible Under the Good Faith Exception to the Exclusionary Rule ii

3 TABLE OF AUTHORITIES Cases Abie State Bank v. Weaver, U.S. 765, 772 (1931) Burlington N. R.R. Co. v. Dep't of Pub. Serv. Reg., 763 F.2d 1106 (9th Cir. 1985) Chastleton Corp. v. Sinclair, 264 U.S. 543, (1924) City of Philadelphia v. New Jersey, 437 U.S. 617, 624 (1978)... 19, 20, 21 Coolidge v. New Hampshire, 403 U.S. 443, 481 (1971)... 22, 33 Craigmiles v. Giles, 213 F.3d 220 (6th Cir. 2002)... passim Davis v. U.S., 564 U.S. 229, 241 (2011)... 32, 33 Dias v. City & Cnty. of Denver, 567 F.3d 1169 (10th Cir. 2009) Hayes v. Florida, 470 U.S. 811, 812 (1985) Illinois v. Caballes, 543 U.S. 405, 410 (2005) Katz v. U.S., 389 U.S. 347, (1967) Kyllo v. U.S., 533 U.S. 27, 34 (2001) Lichtenberger, 786 F.3d at , 33 Milnot Co. v. Richardson, 350 F. Supp. 221 (S.D. Ill. 1972)... 12, 13 Nashville, C. & St. L. R.R. v. Walters, 294 U.S. 405, 415 (1935) Powers v. Harris, 379 F.3d 1208 (10th Cir. 2004) Rann v. Atchison, 689 F.3d 832 (7th Cir. 2012) Riley v. California, 134 S. Ct. 2473, (2014)... 26, 30 Santos v. City of Houston, 852 F. Supp. 601, 608 (S.D. Tex. 1994) Shelby Cty. v. Holder, 133 S. Ct. 2612, 2629 (2013) St. Joseph Abbey v. Castille, 712 F.3d 215, 217 (5th Cir. 2013)... passim U.S. v. Ackerman, 831 F.3d 1292, 1307 (2016)... 23, 30, 31, 32 U.S. v. Cotterman, 709 F. 3d 952, 966 (9th Cir. 2013) U.S. v. Diehl, 276 F.3d 32, 42 (1st Cir. 2002) U.S. v. Goodale, 738 F.3d 917, 921 (8th Cir. 2013) U.S. v. Lichtenberger, 786 F.3d 478, (6th Cir. 2015)... passim U.S. v. Runyan, 275 F.3d 449, 463 (5th Cir. 2001)... 24, 25, 26, 29 U.S. v. Sparks, 806 F.3d 1323 (11th Cir. 2015) U.S. v. Wicks, 73 M.J. 93 (C.A.A.F. 2014) United States v. Carolene Prods. Co., 304 U.S. 144 (1938)... 12, 13 United States v. Jacobsen, 466 U.S. 109 (1984)... passim United States v. Jones, 565 U.S. 400 (2012)... v, 22, 30, 31 United States v. Then, 56 F.3d 464, 468 (2d Cir. 1995) Walter v. U.S., 447 U.S. 649, 657 (1980) Weeks v. U.S., 232 U.S. 383, 392 (1914) Statutes 28 U.S. Code v Other Authorities iii

4 Adrian Vermeule, Holmes on Emergencies, 61 STAN. L. REV. 163, (2008) Alexandra Gioseffi, Lichtenberger, Sparks, and Wicks: The Future of the Private Search Doctrine, 66 EMORY L.J. 395 (2017) Allison Orr Larsen, Do Laws Have a Constitutional Shelf Life?, 94 TEX. L. REV. 59 (2015) 10, 11 Bernard Schwartz, Chief Justice Rehnquist, Justice Jackson, and the Brown Case, 1988 SUP. CT. REV. 245, 258 n David L. Faigman, Constitutional Fictions: A Unified Theory of Constitutional Facts 16 (2008) 9 Hanni Fakhoury, Applying Fourth Amendment Protections to Electronic Devices and Data, ATTORNEY EDUCATION CENTER (July 10, 2015), 31 Jethro Mullen, The world s biggest flash drive can store more than 160 HD movies, CNNtech, (Jan. 5, 2017, 3:12 AM), 27 Johanna Talcott, Aging Disgracefully: Do Economic Laws Remain Rational in Spite of Changed Circumstances?, 11 FIU L. REV. 495, 506 (2016)... 10, 11, 12, 13 Constitutional Provisions U.S. Const. amend. IV... 1, 21 iv

5 QUESTIONS PRESENTED 1. Is the rational basis test based on the legitimacy of the governmental interest at the time of the enactment of a state law or at the time of the challenge to the state law? Additionally, is , Clint. Stat. rationally related to a legitimate government interest? 2. Does the decision in United States v. Jones, 565 U.S. 400 (2012) overcome United States v. Jacobsen, 466 U.S. 109 (1984) in the event of a physical trespass, thus rendering the images discovered on the USB drive inadmissible fruits of an unconstitutional search? If so, can Clintonia adequately prove a reasonable reliance on Jacobsen that would justify application of the good faith exception to the exclusionary rule? STATEMENT OF JURISDICTION The petition for a Writ of Certiorari to the Supreme Court of the United States was timely filed on November 10, 2016, following the Clintonia Supreme Court s opinion dated October 29, This Court has jurisdiction under 28 U.S. Code v

6 CONSTITUTIONAL AND STATUTORY PROVISIONS U.S. Const. amend. IV 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 , Clint. Stat. No resident of Clintonia may, without a proper license under the FDEA, sell a time-ofneed casket for use in a funeral within the state of Clintonia. A violation of this section is a first-degree misdemeanor and punishable by up to one year in prison and a $1,000 fine. This section only applies to wholly intrastate transactions.

7 STATEMENT OF THE CASE The Clintonia Funeral Directors and Embalmers Act ( FDEA ) forbids anyone from engaging in an intrastate sale of a time-of-need casket without being licensed as a funeral director. Selling a casket without a valid license is a criminal offense under Clintonia law. The statute reads, "No resident of Clintonia may, without a proper license under the FDEA, sell a time- of-need casket for use in a funeral within the state of Clintonia. A violation of this section is a first-degree misdemeanor and punishable by up to one year in prison and a $1,000 fine. This section only applies to wholly intrastate transactions." , Clint. Stat. The Board of Funeral Directors and Embalmers ( Board ), established by the FDEA, has the exclusive power to promulgate license requirements. The Board is composed of fourteen members, including eight funeral directors and six representatives not affiliated with the funeral industry. Under the Board s requirements, obtaining a funeral director s license is no small feat. Prospective licensees must either complete one year of accredited course work at a mortuary school and then two years of apprenticeship with a licensed funeral director, or complete three years of an apprenticeship. Once these requirements are met, the candidate can receive a funeral director s license after passing the funeral directors examination. For candidates on the mortuary school track, there is currently only one accredited school in Clintonia, Kevorkian College. To complete the required year at Kevorkian, the prospective licensee must take eight credit hours in embalming, three in restorative art, and twenty-one in funeral services. Only approximately 5% of the courses in funeral services relate to casket and urn issues. There is no required curriculum for the apprenticeship, even if the candidate elects to do the three-year option instead of spending a year at Kevorkian. The sole requirement is that, 2

8 during the apprenticeship, the candidate must embalm 25 bodies. Supervisors are required to sign a certification form that this requirement was met and also file quarterly reports regarding the apprentice s activity. The criminal prohibition against casket sales is of more recent vintage than the FDEA itself. The FDEA was enacted in 1932 after extensive lobbying by a wealthy and powerful group of Clintonia s morticians. In 1956, the Clintonia legislature amended the FDEA to include intrastate casket sales in its prohibitions and added , Clint. Stat., which criminalizes intrastate casket transactions without a license. Senator Jerome Gaines, the chief sponsor of the amendment and a third-generation mortician, was very clear that the amendment was designed to protect funeral directors from competitors selling caskets at lower rates. During the debates on the amendment, Senator Gaines said, My colleagues, we need to protect morticians in Clintonia from unlicensed competition. We might not be able to regulate interstate activity thanks to the Commerce Clause, but we can regulate intrastate sales. Call it public safety, call it consumer protection, justify it however you like, but pass this bill to keep Clintonia s morticians thriving. During the debates, Senator Gaines also pointed to a study conducted in 1955 that showed at least 10% of unlicensed retail casket sellers took advantage of consumers by selling caskets which did not meet the standards prescribed by the FDEA. This study was later debunked in 2011 as being a factually baseless propaganda tool sponsored by the Board. Caskets sold by funeral directors in Clintonia are generally 800% more expensive than identical caskets sold by unlicensed retailers. The law has gone unchallenged until today. In 2012, the standards referenced in the study were also repealed. Clintonia law currently places no requirements on caskets. Family members are free to bury their deceased in a homemade casket if they so choose. These standards initially were designed to ensure corpses were placed in secure caskets which 3

9 could not leak. At the hearing on the motions in this case, a funeral director, William Gaines, testified that such leakage could contaminate ground water or expose visitors to bacteria from the decomposing body. This leakage is of particular concern when the decedent died from a communicable disease. In early 2012, the monks of St. Michael s Abbey in Sandersburg buried their longtime abbot, Gabriel Grey. In keeping with monastic tradition, Abbot Grey was buried in a simple wooden casket. This sparked interest in the caskets and one of the monks, James T. Oliver, was quick to notice that interest. Mr. Oliver went to the new abbot and requested permission to manufacture caskets to sell to the public, which the new abbot refused. Despite the abbot s refusal, Mr. Oliver secretly began to manufacture caskets. Later in 2012, he left the Abbey, purchased a home at 2241 Evidence Alley, Sandersburg, Clintonia, and began selling plain wooden caskets. He established a website, and sold caskets for use in both intrastate and out of state funerals. On November 31, 2013, a week after his retirement from the F.B.I., Special Agent Bruce Walker came to Clintonia with his wife and two children to visit his mother, who was dying. Walker s mother passed the next day and Walker began making funeral arrangements. He contacted a funeral director in Sandersburg and engaged his services and the funeral home, but balked at the $9,000 price that the director charged for a casket. Later, Walker came across Oliver s website. He contacted Oliver, who drove to the funeral home with a casket for Walker to inspect. Walker was impressed with the quality of the workmanship and the simplicity of the design. Oliver offered to sell the casket for only $1,000 and Walker immediately purchased it. 4

10 After his mother s funeral service, Walker called Mr. Oliver to thank him for the wellmade casket. R. at 6. Mr. Oliver responded by complaining about Clintonia s criminal statute that demands casket-sellers have a Funeral Director s License to sell their wares. Id. Mr. Oliver informed Walker that he does not have a valid license, but he does carry a fabricated license on his person. Id. He also claimed that he keeps a printable version in a USB drive on his nightstand. Id. Upset by this new development, Walker tracked down Mr. Oliver s address and went to his home to confront him. Id. When Walker arrived, however, the home appeared vacant: there was no vehicle in the driveway, and no one answered his knocks or calls. Id. When Mr. Oliver s door unexpectedly opened upon Walker s knock, Walker availed himself of the opportunity to enter the house and search for the USB drive. Id. Walker found a flash drive labeled Dup. License/Fun! on Mr. Oliver s nightstand, which he then took from the home without permission. Id. To find the fake license, Walker plugged the USB drive into his personal computer. Id. He then clicked through several layers of electronic files. Id. Upon first opening the device, Walker found two folders, labeled DL and F respectively, presumably representing Duplicate License and Fun! Id. Walker chose the F folder, which opened to reveal approximately 100 subfolders, randomly numbered. Id at 6, 7. Walker opened the first subfolder, and came to eleven nondescript JPEG files, vaguely labeled one through eleven. Id. at 7. Walker clicked a JPEG at random, and was startled to find what he took to be child pornography. Id. Walker immediately brought the USB drive to the Sandersburg police department, where he spoke with Private Rookie Jones. Id. Jones asked Walker if he was a cop, to which Walker replied No. Id. However, Walker failed to inform Jones that he was a newly retired FBI agent. 5

11 Id. Walker told Jones he believed he had seen child pornography on the USB drive, but he did not admit that he acquired the drive by illegally trespassing on Mr. Oliver s property and taking the USB from his bedroom. Id. Jones inserted the USB drive into his computer and followed Walker s initial instructions to reach the subfolder of JPEGs. Id. At that point, Walker ambiguously asserted, it s one of those, and walked away. Id. Jones continued to look without Walker, and clicked through the first ten JPEGs unassisted, starting at number one. Id. Jones judged the images in JPEGs one through nine looked to be potential pieces of child pornography. Id. He then opened JPEG number ten to find a copy of Mr. Oliver s Funeral Director s License. Id. At this discovery, Jones abruptly stopped his search, left the eleventh file undisturbed, and brought the USB drive to his superiors. Id. 6

12 SUMMARY OF THE ARGUMENT For approximately a century, the Supreme Court has recognized that a law's constitutionality should be examined with regard to the factual circumstances in existence at the time the law is challenged. A once valid law can be rendered unconstitutional by virtue of changed circumstances. The Court has applied the changed circumstances doctrine at all levels of judicial scrutiny, including rational basis review. Segregated schools were deemed unconstitutional once science demonstrated that separate but equal was harmful to African- American children. The Court invalidated the coverage formula of Section 5 in the Voting Rights Act upon a finding that voting rates among African-Americans in Alabama were comparable to their white peers. Similarly, Clintonia s statute penalizing casket makers has reached its expiration date. A 1955 study that was the factual basis for the law s enactment has been debunked and any associated regulatory standards have been repealed. These changes, combined with a legislative history that shows the statute s primary aim was to give Clintonia s morticians a monopoly, render this law constitutionally infirm. The Founders created the Fourth Amendment as a safeguard to prevent unreasonable intrusions on citizens persons and property. In the modern era of technological advancement, it is crucial that we extend protection to the ever-expanding realm of electronics. Whether dealing with electronic devices or not, the test enumerated in United States v. Jones outlines when a Fourth Amendment search has taken place. That test which partially derives from United States v. Jacobsen states a search occurs when a state actor either infringes on a citizen s reasonable expectation of privacy, or physically trespasses on a constitutionally protected location or object to obtain information. In either situation, the state actor must have a valid search warrant, or must be acting under an applicable exception to the warrant requirement. A physical trespass, 7

13 however, is considered so egregious under Jones, that it will immediately be classified as a Fourth Amendment search, even if no reasonable expectation of privacy has been breached. In this way, the Jones test effectively swallows Jacobsen, and dominates the calculus in favor of a Fourth Amendment search whenever a trespass is involved. Private Jones searched Mr. Oliver s USB drive under the pretense of complying with the Private Search Doctrine, which is an exception to the warrant requirement. However, he violated the Doctrine when he exceeded the scope of the initial private search by opening JPEGs that Walker had not originally opened. Further, he started opening JPEGs without knowing which of the eleven files Walker had viewed. In doing so, Jones intruded upon the unopened files in Mr. Oliver s device in order to determine whether or not they contained child pornography. The Sixth Circuit s technologically-informed approach to searches shows that opening a single file does not frustrate the owner s expectation of privacy in all files on a given device. Thus, by opening one JPEG, the Private Search Doctrine did not sanction Jones to view all ten of the JPEGs in question. Jones should have sought a warrant before searching, rather than depending on a warrant exception that did not authorize his actions. Even if Private Jones was relying on the Private Search Doctrine as outlined in Jacobsen, he still did not rely in good faith. By exceeding the scope of the prior search, Jones violated the warrant exception that would have made his warrantless search acceptable. To admit his illegally-obtained evidence would be to condone poor policing while denying Mr. Oliver his Fourth Amendment rights. Therefore, the Court should exclude the images. 8

14 ARGUMENT I. The Rational Basis Test Is Based on the Legitimacy of the Government Interest At the Time of Challenge, and Section Clint. Stat. Is Not Rationally Related to Any Legitimate Government Interests. "The soaring language of the Constitution is brought down to earth by plain facts." David L. Faigman, Constitutional Fictions: A Unified Theory of Constitutional Facts 16 (2008). This case is not about economic regulation. Rather, this case is about whether constitutional rights expire. Respondent s expansive theory about the deference due economic regulation answers this question in the affirmative. This case arises from a state s efforts to punish entrepreneurism and prohibit a monk s ability to build caskets at competitive prices. Petitioner, James T. Oliver, a monk of St. Michael s Abbey, constructs and sells high quality caskets at prices 800% cheaper than identical caskets sold by licensed funeral directors. Relying on debunked facts, the state of Clintonia aims to raise a fortress protecting the monopoly rents that licensed funeral directors extract from consumers under the guise of economic regulation. In the seminal Carolene Products, the Supreme Court upheld a longstanding precedent that changed circumstances may render a once valid law unconstitutional. The Court has never overruled the principle articulated in Carolene, and consistently gives weight to changed factual circumstances at virtually every level of judicial scrutiny, including rational basis cases. To do otherwise would gut decades of Supreme Court jurisprudence and effectively place an expiration date on constitutional rights. 9

15 A. The Supreme Court Has Long Recognized That Changed Factual Circumstances Can Render Continued Enforcement of a Law Irrational. The Supreme Court has consistently expressed that laws can have a "constitutional shelf life." Johanna Talcott, Aging Disgracefully: Do Economic Laws Remain Rational in Spite of Changed Circumstances?, 11 FIU L. REV. 495, 506 (2016) (quoting Allison Orr Larsen, Do Laws Have a Constitutional Shelf Life?, 94 TEX. L. REV. 59 (2015)). In other words, laws, constitutional at one time, may become unconstitutional by a change in circumstances. At virtually every level of judicial scrutiny, the Supreme Court has indicated that a law's constitutionality should be examined with regard to the factual circumstances in existence at the time the law is challenged. Talcott, supra at 506 (2016). In the iconic case of Brown v. Board of Education, the holding is often considered the model law-transformation case (embracing a change to the prevailing interpretation of the Equal Protection Clause). Larsen, supra at 72. However, constitutional law scholars have also argued that the Justices who decided Brown also saw it as a "constitutional shelf-life" case, namely a case involving the application of new facts to settled law. Id. In fact, the Brown Court emphasized the "changed circumstances" of public education between 1896 and 1954, and Justice Jackson's unpublished concurrence included a section entitled "does the Amendment contemplate changed conditions?" Id. Bernard Schwartz, Chief Justice Rehnquist, Justice Jackson, and the Brown Case, 1988 SUP. CT. REV. 245, 258 n.51. More recently, in 2013, the Court addressed the issue of an unconstitutionally stale law in Shelby County v. Holder. Larsen, supra at 72. In Shelby, the Court invalidated a provision of the Voting Rights Act, holding that, although constitutional when written, the coverage formula of the law grew to be irrational over time and was unconstitutional now because it contained "40- year-old facts [concerning voting patterns of minorities] having no logical relation to the present 10

16 day." Shelby Cty. v. Holder, 133 S. Ct. 2612, 2629 (2013); see also Larsen, supra at 66. In short, the Court held that the passage of time and changed circumstances created a specific reason to invalidate the law. The Court has similarly held that such changed circumstances must be considered in rational basis review cases. The changed circumstances doctrine has been a part of the Supreme Court's rational basis review jurisprudence since the early twentieth century. Talcott, supra at 508. In Chastleton Corp. v. Sinclair, Justice Holmes suggested that unanticipated changes in the facts justifying a law might require its nullification, even if valid when enacted. Chastleton Corp. v. Sinclair, 264 U.S. 543, (1924). In Chastleton, the Court examined the constitutionality of a temporary, emergency rent control statute in the District of Columbia that was designed to prevent rent profiteering in the wake of World War I. Id. The legislature reenacted the statute in 1921 and extended it again for two more years in 1922, with the legislative finding that "the emergency still exists." Id. at 547. However, Justice Holmes rejected what he termed a legislative "prophecy" about the end of the emergency conditions, writing, this declaration can be no more than a prophecy. Id. He then wrote, "A law depending upon the existence of an emergency or other certain state of facts to uphold it may cease to operate if the emergency ceases or the facts change even though valid when passed." Id. at He remanded for further fact-finding. Id. at 549. Six months later, the lower court concluded that the emergency conditions had ceased to exist and invalidated the law. Adrian Vermeule, Holmes on Emergencies, 61 STAN. L. REV. 163, (2008). Similarly, in Abie State Bank v. Weaver, Justice Hughes stated, "[A] police regulation, although valid when made, may become, by reason of later events, arbitrary and confiscatory in operation." 282 U.S. 765, 772 (1931). Four years later, Justice Brandeis similarly concluded, "a 11

17 statute valid as to one set of facts may be invalid as to another. A statute valid when enacted may become invalid by change in the conditions to which it applied." Nashville, C. & St. L. R.R. v. Walters, 294 U.S. 405, 415 (1935). It was not until Carolene Products that the Supreme Court conducted a more extensive treatment of the changed circumstances doctrine. United States v. Carolene Prods. Co., 304 U.S. 144 (1938). In United States v. Carolene Prods. Co., the plaintiffs brought a challenge to the Federal Milk Act, a law that prohibited the sale of milk with added vegetable or coconut oils. Id. at The challengers claimed, inter alia, the Act was a violation of the Fifth Amendment's Due Process Clause and a denial of equal protection. Id. at The government argued the filled milk was "injurious to the public health and facilitated fraud" because it did not have the same level of vitamins as pure milk. Id. The government further contended that the insufficient vitamin levels were particularly harmful for children and could result in malnutrition. Id. at 149 n.2, 150 n.3. The Court upheld the Act; however, Justice Stone suggested that "the constitutionality of a statute predicated upon the existence of a particular state of facts may be challenged by showing to the court that those facts have ceased to exist." Id. at 153. In other words, even if a statute is justified by specific factual circumstances, it could be found unconstitutional once those factual circumstances change. Id.; see also Milnot Co. v. Richardson, 350 F. Supp. 221 (S.D. Ill. 1972). In fact, this proved to be true in Carolene Product's subsequent history. After its loss at the Supreme Court, the Carolene Products Company changed its name to the Milnot Company and continued to sell milk only on an intra-state basis. Talcott, supra at 509. Twenty-eight years later, Milnot, again challenged the constitutionality of the Filled Milk 12

18 Act. Milnot Co. v. Richardson, 350 F. Supp. 221, (S.D. Ill. 1972). They argued that since 1944, technical advancements had led to the proliferation of imitation milk and dairy products functionally indistinct from Milnot's products that the government permitted in interstate commerce. Id. at 223. In Carolene, the government had argued that prohibition of imitation milk was intended to target a specific public health concern the potential malnutrition of children. Carolene Products, at 149 n.2, 150 n.3. Milnot now argued, and the court agreed, that the wide availability of these imitation milk products at the time of challenge "creates a new factual situation upon which the court should reconsider the constitutionality of the Filled Milk Act as applied to Milnot." Milnot, at 224. The court noted that, although Congress may select a particular evil (in this case, malnutrition of children) and regulate it to the exclusion of other possible evils in the same industry, any distinction drawn must be rational. Id. However, the incongruous results produced by the Filled Milk Act was devoid of rationality. Id. at 225. In other words, the wide availability of these imitation milk products at the time of challenge severed any rational connection between preventing malnutrition and prohibiting Milnot's products. See Talcott, supra at 509. In sum, the Supreme Court has consistently held that the legitimacy of the government interest must be assessed at the time of challenge. The Court has never overruled the principle articulated in Carolene, and consistently gives weight to changed factual circumstances, even in rational basis cases. To do otherwise would place an expiration date on constitutional rights. See Talcott, supra at 498. B. In Accordance With the Supreme Court's Extensive Precedent On the Changed Circumstances Doctrine, Lower Courts Have Similarly Found That a Change in Factual Circumstances at the Time of Challenge May Erode a Statute's Constitutionality. 13

19 Several courts have applied the changed circumstances doctrine to rational basis review cases and held that the constitutionality of a law can erode when circumstances change. Specifically, the Second, Fifth, Sixth, Ninth, and Tenth Circuit Courts of Appeals have all indicated that changed circumstances must play a role in examining whether a once valid law has become constitutionally infirm by virtue of changed circumstances. St. Joseph Abbey v. Castille, 712 F.3d 215, 217 (5th Cir. 2013); Dias v. City & Cty. of Denver, 567 F.3d 1169 (10th Cir. 2009) (permitting a due process claim to proceed on a theory of changed circumstances); Craigmiles v. Giles, 213 F.3d 220 (6th Cir. 2002); United States v. Then, 56 F.3d 464, 468 (2d Cir. 1995) (Calabresi, J., concurring); Burlington N. R.R. Co. v. Dep't of Pub. Serv. Reg., 763 F.2d 1106 (9th Cir. 1985) (finding that circumstances had not sufficiently changed to make regulation unconstitutional). Both the Fifth Circuit Court of Appeals and the Sixth Circuit Court of Appeals have invalidated funeral director statutes virtually identical to Section Clintonia Statute. St. Joseph Abbey v. Castille, 712 F.3d 215, 217 (5th Cir. 2013); Craigmiles v. Giles, 213 F.3d 220 (6th Cir. 2002). In Craigmiles v. Giles, the plaintiffs, operators of two independent casket stores, brought an equal protection and due process challenge to a provision of the Tennessee Funeral Directors and Embalmers Act (FDEA) that forbade anyone from selling caskets without being licensed by the state as a "funeral director." 213 F.3d 220, 222 (6th Cir. 2002). The FDEA requires all those engaged in "funeral directing" to be licensed by the Board of Funeral Directors and Embalmers, established by the FDEA. Id. When the statute was originally passed by the Tennessee legislature in 1951, the definition of "funeral directing" did not include the sale of caskets and other funeral merchandise, but was limited to the arranging of funeral ceremonies, burial, cremation, and 14

20 embalming. Id. In 1972, the legislature amended the definition of "funeral directing" to include the sale of caskets. Id. The court also notes, "[t]he requirements for licensure as a funeral director are more than administrative." Id. Applicants may choose one of two paths of study. They may complete either one year of course work at an accredited mortuary school and then a one-year apprenticeship with a licensed funeral director or a two-year apprenticeship. Id. There is no specified curriculum for the apprenticeship, although the funeral director under whom the candidate is training must file a quarterly report with the Board regarding the apprentice's activity. Id. After the completion of either the two-year tracks, the candidate must take and pass the Tennessee Funeral Arts Examination. Id. For candidates on the mortuary school track, there is only one accredited school in Tennessee, Gupton College. Id. To complete the required year at Gupton, the candidate must take eight credit hours in embalming, three in "restorative art," and twenty-one in "funeral service." Id. at 222. Students testified that casket and urn issues constituted no more than five percent of the Gupton curriculum. Furthermore, only 15% of the questions on the Tennessee Funeral Arts Exam concern casket sales and funeral merchandising. Id. The plaintiffs did not provide any funeral services such as embalming or arranging funeral services; they only sold caskets. The plaintiffs sold these caskets at prices substantially below those sold by funeral directors. In fact, the court found that funeral home operators generally mark up the price of caskets 250 to 600 percent, whereas casket retailers sell caskets at much smaller margins. Id. at 224. The court of appeals agreed with the district court that, as applied to the operators, the FDEA violated the operators' due process and equal protection rights. Id. at 229. The court found that the statute did not bear a rational relationship to any legitimate purpose other than protecting 15

21 the economic interests of licensed funeral directors. Id. at The court wrote, "Tennessee's justifications for the 1972 amendment come[s] close to striking us with "the force of a fiveweek-old, unrefrigerated dead fish." Id. at 225. The court was also unable to find any way in which the application of the FDEA to the plaintiffs promoted public health or safety. The plaintiffs, of course, would not handle the bodies, much less engage in any embalming services. Id. The court conceded that the quality of the caskets used could potentially threaten public health. Id. If the contents of a casket were to leak, visitors to funeral services and perhaps even ground water could be exposed to bacteria emanating from the corpse. Id. However, Tennessee law did not require that any particular type of casket, or any casket at all, be used at burial. It was perfectly legal in Tennessee for loved-ones to provide a homemade casket, for friends to give (but not to sell) a casket for use in burial, or for a body to be buried in no container at all, even when the person died from contagious diseases. Id. at 225. Because nothing prevented licensed funeral directors from selling shoddy caskets at high prices, the licensing requirement bore no rational relationship to increasing the quality of burial containers to protect the public health. Finally, the court of appeals rejected the government's argument that the statute protected consumers from casket retailers, concluding that the legislature could have passed better tailored regulations. Id. at 227. Finally, the court also held that the licensure requirement imposed a significant barrier to competition in the casket market. Id. By protecting licensed funeral directors from competition on caskets, the FDEA harmed consumers in their pocketbooks. Id. at 228. Approximately ten years later, in St. Joseph Abbey v. Castille, Plaintiffs, thirty-eight monks of St. Joseph Abbey, brought equal protection challenges against the Louisiana Embalming and Funeral Directors Act. 712 F.3d 215 (5th Cir. 2013). The monks offered caskets 16

22 at prices that were significantly lower than those offered by funeral homes. Id. at 217. The Abbey offered no funeral services. Id. It did not prepare a deceased for burial and its monks did not participate in funerals, except as pastors. Id. Louisiana did not regulate the use of a casket, container, or other enclosure for the burial remains; had no requirements for the construction or design of caskets; and did not require that caskets be sealed. Individuals could construct their own caskets for funerals in Louisiana or purchase caskets from out-of-state suppliers via the internet. In fact, no Louisiana law even required a person to be buried in a casket. Id. at 218. However, the Abbey's casket sales faced significant regulatory hurdles. Under La. Rev. Stat. Ann. 37:831 and 37:848, intrastate sales of caskets to the public could be made only by a licensed funeral director at a funeral home. Id. at 218. As the court noted, this restriction had two layers. Id. First, a prospective casket retailer must become a licensed funeral establishment. Id. This required building a layout parlor for thirty people, a display room for six caskets, an arrangement room, and embalming facilities. Second, the establishment must employ a full-time funeral director. A funeral director must have a high school diploma or GED, pass thirty credit hours at an accredited college, and complete a one-time apprenticeship. Id. The apprenticeship must consist of full-time employment and be the apprentice's "principal occupation." None of this mandatory training related to caskets. A funeral director must also pass a test administered by the International Conference of Funeral Examining Boards. The exam did not test Louisiana law or burial practices. Id. The state argued the regulation of intrastate casket sales enjoyed the deference due classic economic regulation. Id. at 221. Alternatively, Louisiana argued that it was rationally related to State's police powers in protection of consumers and public health. Id. The Abbey contended that 17

23 no rational basis existed and any rational basis that existed in the past had been negated by changed circumstances. Siding with the plaintiffs, the court of appeals concluded that the challenged law was not rationally related to policing deceptive sales tactics or protecting public health and safety. Id. at 226. In fact, the court stated that the exclusive right of sale put consumers at greater risk of abuse, including exploitative prices. Id. Furthermore, the court found no rational relationship between public health and safety and restrictions on casket sales by the plaintiffs. The court noted: Id. [r]ather, this purported rationale for the challenged law elides the realties of Louisiana's regulation of caskets and burials. That Louisiana does not even require a casket for burial, does not impose requirements for their construction or design, does not require a casket to be sealed before burial, and does not require funeral directors to have any special expertise in caskets leads us to conclude that no rational relationship exists between public health and safety and limiting intrastate sales of caskets to funeral establishments. C. Section Clint. Stat. Is Not Rationally Related To Any Legitimate Government Interest. Section Clint. Stat. is not rationally related to protecting public health and safety or protecting consumers from deceptive sales tactics. The record is bereft of any evidence indicating consumer injury caused by third party sellers, such as Mr. Oliver. Clintonia relies on a 1955 study that showed that at least 10% of unlicensed retail casket sellers took advantage of consumers by selling caskets which did not meet the standards prescribed by FDEA. R. at 5. Application of the changed circumstances doctrine to these facts severs any rational connection between the stated government interest and the casket sale prohibition. First, the 1955 study was later debunked in 2011 as being a factually 18

24 baseless propaganda tool sponsored by the Board. R. at 5. In fact, funeral directors significantly upcharge their caskets by as much as 800% in comparison to identical caskets sold by unlicensed retailers demonstrating that licensed directors cause more consumer injury than third-party sellers. R. at 5. Secondly, the FDEA standards relied upon in the debunked 1955 study were repealed in Clintonia law, like the state laws in Louisiana and Tennessee, does not place any restrictions on caskets. These standards initially were designed to ensure corpses were placed in secure caskets which could not leak. The potential leakage could be particularly problematic when the decedent died from a communicable disease. Today, however, these standards are inoperable. Family members are free to bury their deceased in homemade caskets, even if the decedent passed away from a communicable disease. The record is also silent on whether Clintonia even requires a casket for burial. Clintonia does not impose requirements for their construction or design, does not require a casket to be sealed before burial, and does not require funeral directors to have any special expertise in caskets. The absence of any of these facts makes it implausible that a rational relationship exists between public health and limiting intrastate sales of caskets to funeral establishments. Lastly, Clintonia argues that its interest in economic regulation warrants deference. However, courts have consistently stated this deference is not without its limits. Mere economic protectionism, without more, is not a legitimate government interest. City of Philadelphia v. New Jersey, 437 U.S. 617, 624 (1978). Courts have repeatedly recognized that protecting a discrete interest group from economic competition is not a legitimate governmental purpose. In City of Philadelphia v. New Jersey, the plaintiffs, landfill operators, brought an action against defendants, state and 19

25 department, arguing that N.J. Stat. Ann. 13:1I-10 was unconstitutional because it permitted four categories of waste to enter the state, and excluded plaintiffs. 437 U.S. 617, 619 (1978). The Supreme Court reversed the lower court, concluding that 13:1I-10 was a protectionist measure and not a law directed to legitimate local concerns, with effects upon interstate commerce that are only incidental. Id. at 629. Reflecting on the "evils of economic isolation and protectionism, the Court stated, "where simple economic protectionism is effected by state legislation, a virtually per se rule of invalidity has been erected." Id. at 624. Lower courts followed suit, holding that economic protectionism, without more, is simply not a legitimate government interest. See St. Joseph Abbey v. Castille, 712 F.3d 215, 222 (5th Cir. 2013) ("Courts have repeatedly recognized that protecting a discrete interest group from economic competition is not a legitimate governmental purpose."); Craigmiles v. Giles, 213 F.3d 220 (6th Cir. 2002); Santos v. City of Houston, 852 F. Supp. 601, 608 (S.D. Tex. 1994) (holding that "economic protectionism in its most glaring form... [is] not legitimate."). The lower court relied on Powers v. Harris to hold that Clintonia s naked economic protectionist goals were constitutional. 379 F.3d 1208 (10th Cir. 2004). However, Powers v. Harris is not controlling here. 379 F.3d 1208 (10th Cir. 2004). In Powers, the plaintiffs wanted to sell caskets over the Internet without obtaining the required licenses from the Board. Id. at Plaintiffs challenged the constitutionality of the Oklahoma Funeral Services Licensing Act (FSLA), Okla. Stat. tit. 59, et seq, contending that it violated equal protection and due process. Id. The Tenth Circuit Court of Appeals held that protecting or favoring one particular intrastate industry, absent a specific federal constitutional or statutory violation, is a legitimate state interest. Id. at However, this case is distinguishable from the case at bar in an important way - the cases cited by Powers dealt with the state favoring one industry over another 20

26 industry. However, Clintonia's statute discriminates between similarly situated plaintiffs within the same industry. The state's impermissible distinction between these classes of plaintiffs renders the case inapplicable. Here, like the statutes at issue in Craigmiles and St. Joseph Abbey, Clintonia's licensure requirement imposes a significant barrier to competition in the casket market. In fact, legislative history confirms that this was the primary intent of the legislature. During debates on the amendment, Senator Jerome Gaines, the chief sponsor of the amendment and a third-generation mortician, said: we need to protect morticians in Clintonia from unlicensed competition. We might not be able to regulate interstate activity thanks to the Commerce Clause, but we can regulate intrastate sales. Call it public safety, call it consumer protection, justify it however you like, but pass this bill to keep Clintonia's morticians thriving. R. at 4, 5. The Senator's statements evince a clear congressional intent to protect the funeral directors from competition at all costs. As such, the public health and consumer protection justifications are merely pretext for the state's efforts at effecting the economic isolation and protectionism the Supreme Court has described as "evil." City of Philadelphia v. New Jersey, 437 U.S. 617, 624 (1978). Clintonia s sole aim is to "raise a fortress protecting the monopoly rents that funeral directors extract from consumers." Craigmiles v. Giles, 213 F.3d 220, 229 (6th Cir. 2002). Naked economic preferences are impermissible to the extent that they harm consumers. This measure to privilege certain businessmen over others at the expense of consumers is not animated by a legitimate governmental purpose and cannot survive even rational basis review. 21

27 II. Private Jones Search of the USB Drive Violated the Private Search Doctrine, Creating a Physical Trespass that Fails the Jones Test and Makes the Images Inadmissible Fruits of an Unconstitutional Search. The Fourth Amendment, in relevant part, declares the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated. U.S. Const. amend. IV. See also Hayes v. Florida, 470 U.S. 811, 812 (1985) (stating that the Fourteenth Amendment incorporates the Fourth Amendment against the states.). Warrantless searches are per se unreasonable, except in the cases of a few specifically established and well-delineated exceptions. Coolidge v. New Hampshire, 403 U.S. 443, 481 (1971). The Private Search Doctrine has been deemed one such exception: when a private citizen conducts an independent search, police may confirm the citizen s findings by performing a secondary search without a warrant. U.S. v. Jacobsen, 466 U.S. 109, 117 (1984). In the case at bar, Petitioner Oliver s Fourth Amendment rights were violated when a Clintonia police officer exceeded the Private Search Doctrine by executing an overly broad, warrantless search on his personal USB drive. R. at 7. The current test for determining the existence of a Fourth Amendment search is derived from both United States v. Jacobsen and United States v. Jones. U.S. v. Jones, 565 U.S. 400 (2012); U.S. v. Jacobsen, 466 U.S. 109 (1984). Under Jacobsen, a search occurs when state action infringes upon an expectation of privacy that society is prepared to consider reasonable. Jacobsen, 466 U.S. at 113 (stemming from the reasonable expectation of privacy standard enumerated in Harlan s concurrence in Katz v. U.S., 389 U.S. 347, (1967)). In United States v. Jones, this Court revived the common-law trespassory test that had previously been undermined by Katz. 565 U.S. 400 (2012). The Court determined police action to be an unconstitutional physical intrusion when they placed a GPS tracker on a suspect s vehicle to 22

28 collect information about his movements. Id. Jones incorporated Jacobsen s iteration of the Katz standard to make the current search test as follows: government conduct can constitute a Fourth Amendment search either when it infringes on a reasonable expectation of privacy or when it involves a physical intrusion (a trespass) on a constitutionally protected space or thing... for the purpose of obtaining information. U.S. v. Ackerman, 831 F.3d 1292, 1307 (2016) (emphasis added). Jones incorporated Jacobsen, and the two function together to determine the occurrence of a Fourth Amendment search. Id. However, in cases of physical trespass, the Jones prong of the disjunctive test overrides the Jacobsen prong. Id. This means the state action would be classified as a search, even if the actor did not infringe on a reasonable expectation of privacy. Id. Such is true of the instant case, where Mr. Oliver s rights were violated by a physical intrusion into the contents of his USB drive. R. at 7. A. Private Jones Violated the Private Search Doctrine by Exceeding the Scope of Walker s Original Private Search. 1. The Private Search Doctrine The Private Search Doctrine originated as an exception to the Fourth Amendment warrant requirement in the Jacobsen case. U.S. v. Goodale, 738 F.3d 917, 921 (8th Cir. 2013). The Doctrine gives the police latitude to perform warrantless confirmatory searches on evidence that citizens produce from private searches. Jacobsen, 466 U.S. at 117. Actions taken by a private actor, whether accidental or deliberate, reasonable or unreasonable, do not run afoul of the Fourth Amendment, because their private character does not implicate state action. Id. at Thus, in the instant case, Walker s actions would not rise to the level of a Fourth Amendment 23

29 violation, even though he trespassed on Mr. Oliver s property and unlawfully took his USB drive. R. at 6. As a newly retired FBI Agent, Walker surely would have understood the impropriety of his search. Id. at 5, 6. However, because no government official had knowledge of, much less sanctioned Walker s actions, the evidence he recovered could be used by the police. R. at 12; Jacobsen, 466 U.S. at 113 (stating that the Doctrine applies when individuals are not acting as an agent of the Government or with the participation or knowledge of any governmental official. ). The police violate the Fourth Amendment if their subsequent search exceeds the scope of the original search. Walter v. U.S., 447 U.S. 649, 657 (1980). To measure whether the government has exceeded the scope, one must consider: how much information the government stands to gain when it re-examines the evidence and, relatedly, how certain it is regarding what it will find. U.S. v. Lichtenberger, 786 F.3d 478, (6th Cir. 2015) (citing Jacobsen, 466 U.S. at ). In other words, the police must have virtual certainty that they will not learn any more in the course of their search than they have already learned from the original search. Lichtenberger, 786 F.3d at 488; Jacobsen, 466 U.S. at 119. This principle maintains the integrity of the police action as being confirmatory, rather than exploratory. U.S. v. Runyan, 275 F.3d 449, 463 (5th Cir. 2001). 2. Approaches to Measuring the Scope of a Search The Fifth and Sixth Circuits are currently split as to whether the government s subsequent search exceeds the scope of a prior search when an officer is more thorough. R. at 23; U.S. v. Lichtenberger, 786 F.3d 478 (6th Cir. 2015); U.S. v. Runyan, 275 F.3d 449 (5th. Cir. 2001). In Lichtenberger, the Sixth Circuit held that when a private searcher opens one file, that only frustrates the owner s expectation of privacy in that single file. Lichtenberger, 786 F.3d at 24