In the Supreme Court of the United States. JAMES T. OLIVER, Petitioner, THE STATE OF CLINTONIA, Respondent. BRIEF FOR PETITIONER

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1 TEAM F 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 THE STATE OF CLINTONIA BRIEF FOR PETITIONER COUNSEL FOR PETITIONER

2 QUESTIONS PRESENTED 1. Whether the rational basis test on the legitimacy of the government interest should be analyzed at the time of the enactment of the state law or at the time of the challenge to the state law, and whether , Clint. Stat. is rationally related to a legitimate government interest. 2. Whether the State violated Mr. Oliver s Fourth Amendment right against unreasonable searches when they exceeded the scope of the private actor s search, thus rendering the evidence inadmissible, and whether United States v. Jones abrogated Jacobsen v. United States, and would the good faith exception apply. ii

3 TABLE OF CONTENTS QUESTIONS PRESENTED... ii TABLE OF AUTHORITIES.. vi OPINIONS BELOW 1 STATEMENT OF JURISDICTION.. 1 STATUTORY AND CONSTITUTIONAL PROVISIONS. 1 STATEMENT OF CASE. 1 Statement of Facts. 1 Procedural History. 3 SUMMARY OF ARGUMENT 4 STANDARD OF REVIEW.. 5 ARGUMENT. 6 I. THE RATIONAL BASIS TEST ON THE LEGITIMACY OF A STATE INTEREST SHOULD BE ANALYZED AT THE TIME OF THE CHALLENGE TO THE LAW, HOWEVER EVEN IF IT IS ANALYZED AT THE TIME OF ENACTMENT OF THE LAW, CLINTONIA STATUTE WOULD FAIL THE RATIONAL BASIS TEST...6 A. The rational basis test on the legitimacy of the State interest should be analyzed at the time of the challenge to the law because changed circumstances can render legislation obsolete...7 B. The FDEA s regulation criminalizing unlicensed intrastate casket sales was not a legitimate state interest at the time of enactment nor at the time of the challenge because the statute is not rationally related to consumer protectionism or health and public safety and mere economic protectionism is not a legitimate state interest Consumer protectionism is not rationally related to a legitimate state interest because there is no evidence that unlicensed casket retailers engage in deceptive or unfair sales tactics iii

4 2. Health and public safety is not rationally related to a legitimate state interest because there currently are no standards regarding casket construction and there is no evidence that unlicensed casket retailer merchandise is inferior in quality to those offered by funeral directors On its own, economic protectionism is not a legitimate state interest because it is merely an attempt for funeral directors to maintain control of the market and bar competition II. THE STATE OF CLINTONIA VIOLATED MR. OLIVER S FOURTH AMENDMENT RIGHT TO BE PROTECTED AGAINST UNREASONABLE SEARCHES OF HIS EFFECTS, RENDERING THE EVIDENCE INADMISSABLE AND NOT SUBJECT TO THE GOOD FAITH EXCEPTION, AND FLASH DRIVES SHOULD BE GIVEN THE SAME HEIGHTENED LEVEL OF PROTECTION THAT THIS COURT HAS AFFORDED TO CELL PHONES 19 A. The State was not reasonable in conducting a further search into the contents of the flash drive without a warrant because they exceeded the scope of the private search doctrine, therefore, the evidence discovered by the State was inadmissible..20 B. Jacobsen v. United States was not abrogated by United States v. Jones because they do not have synonymous facts surrounding the government action C. The good faith exception is inapplicable because there was no reasonable reliance on a warrant when the State actors conducted a warrantless search of Mr. Oliver s flash drive...27 D. Flash drives should be given the same protection against unreasonable searches as cell phones because flash drives also have the capability to hold vast amounts of personal information and a warrantless search of an item with a high privacy interest is unreasonable CONCLUSION 33 CERTIFICATE OF SERVICE..34 iv

5 APPENDIX A U.S. Const., amend. XIV..A APPENDIX B U.S. Const., amend IV..B APPENDIX C FDEA , Clint. Stat...C v

6 TABLE OF AUTHORITIES CASES United States Supreme Court Cases City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) 6 City of Philadelphia v. New Jersey, 437 U.S. 617 (1978)..9, 15 Coolidge v. New Hampshire, 403 U.S. 443 (1971) , 23 Dent v. West Virginia, 129 U.S. 114 (1889) 6 Groh v. Ramirez, 540 U.S. 551 (2004).27, 28 Herring v. United States, 555 U.S. 135 (2009)....19, 27 Jenness v. Fortson, 403 U.S. 431 (1971)..16 Katz v. United States, 389 U.S. 347 (1967)..20 Mapp v. Ohio, 367 U.S. 643 (1961)...19 Mass. v. Sheppard, 468 U.S. 981 (1984) Mugler v. Kansas, 123 U.S. 623 (1887)..12 Nat l Ass n of Home Builders v. Defs. Of Wildlife, 551 U.S. 644 (2007)...25 Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193 (2009)....7 vi

7 Ornelas v. United States, 517 U.S. 690 (1996) 5 Riley v. California, 134 S. Ct (2014)...20, 29, 30 Romer v. Evans, 517 U.S. 620 (1996)....6 Shelby Cty. v. Holder, 133 S. Ct (2013). 7, 8 Skinner v. Okl. ex rel. Williamson, 316 U.S. 535 (1942) United States v. Carolene Products Co., 304 U.S. 144 (1938) United States v. Jacobsen, 466 U.S. 111 (1984)... 20, 21, 26 United States v. Jones, 565 U.S. 400 (2011) 25, 26 United States v. Leon, 468 U.S. 897 (1984) Walter v. United States, 447 U.S. 649 (1980).20, 22 United States Circuit Court Cases Craigmiles v. Giles, 312 F.3d 220 (6th Cir. 2002)...10, 11, 12, 13 McCauley v. City of Chicago, 671 F.3d 611 (7th Cir. 2011)..5 Merrifield v. Lockyer, 547 F.3d 978 (9th Cir. 2007)...16, 17 St. Joseph Abbey v. Castille, 712 F.3d 215 (5th Cir. 2013).. passim United States v. Lichtenberger, 786 F.3d 478 (6th Cir. 2015)......passim vii

8 United States District Court Cases Cornwell v. Hamilton, 80 F. Supp. 2d 1101 (S.D. Cal. 1999).. 13 State Supreme Court Cases Commonwealth v. Bloomberg, 302 Mass. 349 (1939) Constitutional and Statutory Provisions U.S. Const. amend. IV...19 U.S. Const. amend. XIV, Secondary Sources Allison Orr Larsen, Do Laws Have A Constitutional Shelf Life?, 94 TEX. L. REV. 59 (2015)...7 viii

9 OPINIONS BELOW The opinion of the Supreme Court of Clintonia is unreported. R. at The opinion of the circuit court granting Petitioner s motion to dismiss is unreported. R. at STATEMENT OF JURISDICTION This Court has jurisdiction over the instant case because the issues regard constitutional rights. Petitioner s Fourth and Fourteenth Amendment rights were violated by the Respondent, resulting in this action s suitability to be heard before this Court pursuant to 42 U.S.C This case is on appeal from the Supreme Court of Clintonia. It originated in the Circuit Court of the Fifteenth Judicial Circuit in Bill County, Clintonia. STATUTORY AND CONSTITUTIONAL PROVISIONS The Fourteenth Amendment to the United States Constitution is printed in its entirety in Appendix A. The Fourth Amendment to the United States Constitution is printed in its entirety in Appendix B. The content of Clintonia Statute is printed in Appendix C. STATEMENT OF CASE Statement of Facts: The Clintonia Funeral Directors and Embalmers Act ( FDEA ) and The Board of Funeral Directors and Embalmers ( Board ) created legislation which prohibited the unlicensed intrastate sale of caskets. R. at 3. The FDEA was enacted after extensive lobbying by a wealthy and powerful group of Clintonia s morticians. R. at 4. The Clintonia legislature amended the FDEA to include intrastate casket sales in its prohibitions and added , Clint. Stat., which criminalized unlicensed intrastate casket sales. R. at 4. The amendment was based upon an unsubstantiated study conducted in 1955 that claimed 10% of unlicensed casket retailers took advantage of consumers by selling caskets which did not meet the FDEA s standards. R. at 5. 1

10 This study was later debunked as a factually baseless propaganda tool sponsored by the Board. R. at 5. Additionally, the casket construction standards were repealed in 2012 and Clintonia law currently places no requirements on the construction of caskets. R. at 5. Family members are free to bury their deceased in a homemade casket or no casket at all, if they so choose. R. at 5. In order to obtain a license, one must complete either one year of accredited course work at a mortuary school and two years of apprenticeship with a licensed funeral director, or complete three years of an apprenticeship, as well as pass the funeral directors examination. R. at 4. Kevorkian College is the only mortuary science accredited school in Clintonia and only 5% of the courses relate to caskets and urns. R. at 5. In 2012, Mr. Oliver began selling plain wooden caskets in Sandersburg, Clintonia. R. at 5. He established a website and sold caskets for use in both intrastate and interstate funerals. R. at 5. A week after retiring from the FBI, Bruce Walker began making funeral arrangements for his deceased mother. R. at 6. He contacted a funeral director but was appalled at the $9,000 price that the director charged for a casket. R. at 6. Caskets sold by funeral directors in Clintonia are generally 800% more expensive than identical caskets sold by unlicensed retailers. R. at 5. Walker came across Mr. Oliver s website and contacted him to purchase a casket. R. at 6. Walker was impressed with the quality of the workmanship and Mr. Oliver offered to sell the casket for only $1,000; Walker immediately purchased it. R. at 6. After the funeral service, Walker called Mr. Oliver to express his appreciation. R. at 6. At this point, Mr. Oliver informed Walker of the Clintonia statute criminalizing the intrastate sale of caskets by unlicensed retailers and admitted that he was unlicensed and in violation of this statute. R. at 6. The next day, Walker went to confront Mr. Oliver about his disregard for the law but he was not home. R. at 6. Walker trespassed upon Mr. Oliver s home and found a 2

11 flash drive on his nightstand which read, Dup. License/Fun! R. at 6. The flash drive contained two folders titled DL and F. R. at 7. Walker clicked on the F folder and found that it contained approximately 100 randomly numbered subfolders. R. at 7. He clicked on the first subfolder, which contained eleven JPEG files. R. at 7. There was no way to determine the contents of the files by looking at the JPEG tiles or file names. R. at 7. Walker clicked on one of the files and found an illicit image, at which point he immediately closed the file and brought it to the police department. R. at 7. The officer plugged the flash drive into his computer and Walker guided him to the F folder and first subfolder. R. at 7. At that point, Walker said, it s one of those and walked away. R. at 7. Jones clicked through images 1 10 in order. Each of the ten JPEGs contained an illicit image, except for image 10, which contained a printable copy of Oliver s fake license. R. at 7. Private Jones did not open the eleventh file and delivered the flash drive to his superiors. R. at 7. Mr. Oliver testified that he kept PDF copies of his birth certificate, social security card, medical records, bank records, and tax information in the other folders in the drive. R. at 6. The flash drive was admitted at the hearing and the parties stipulated it could hold two terabytes of data. R. at 6. Procedural History: This case was originally brought before the Circuit Court of the Fifteenth Judicial Circuit for Bill County, Clintonia. The State of Clintonia charged Mr. Oliver with one count for violating by selling a casket without a Funeral Director s License, and nine counts of possession of child pornography. R. at 2. Petitioner filed a motion to dismiss all counts because enforcing was a violation of his rights to equal protection and due process of law, and the warrantless government search violated the Fourth Amendment. R. at 3. The Circuit Court 3

12 granted a joint Motion to Stay and, on November 6, 2014, Clintonia s legislature repealed and the FDEA s license requirements as applied to time-of-need casket retailers. R. at 3. The repeal has no retroactive application and it was effective January 1, R. at 3. The Circuit Court correctly granted Petitioner s Motion to Dismiss on February 4, 2015, and entered the Judgment on April 4, R. at However, the State appealed to the Supreme Court of Clintonia on April 11, And on October 29, 2016, the Supreme Court of Clintonia reversed the holding of the Circuit Court. R. at Petitioner filed a Petition for Writ of Certiorari on November 10, 2016, and this Court granted Certiorari on June 30, R. at 26. SUMMARY OF ARGUMENT The rational basis test on the legitimacy of state interests should be based on the time of the challenge because laws have a constitutional shelf life and should be evaluated in light of relevant circumstances. The FDEA s regulation is outdated and its factual basis is unfounded. However, even if the rational basis test is based on the time of enactment, legislation regarding the construction and intrastate sale of caskets by unlicensed retailers will fail constitutional muster. The State has stipulated seemingly legitimate interests of consumer protectionism, public health and safety, and economic protectionism, however, none of these interests are pertinent in this case. There is no evidence that unlicensed intrastate retailers of caskets use deceptive sales tactics. Health and public safety is not rationally related to a legitimate government interest because the study which claimed 10% of products sold by unlicensed retailers did not meet the FDEA s standard was exposed as a mere propaganda tool. Mr. Oliver does not contend that he would be preparing the deceased for burial; he simply provides the container in which they will be buried in. Finally, mere economic protectionism is not a legitimate government interest. 4

13 The Fourth Amendment to the United States Constitution ensures that all persons have the right to be secure in their houses and effects against unreasonable searches. The private search doctrine states that restrictions against unreasonable searches are not binding upon private citizens who are not acting as an instrumentality of the state. However, this policy does not provide an open-ended scope for government officials to expand an initial search conducted by the private individual. State actors must conduct the secondary search with virtual certainty that the review would not tell him anything more than he already had been told by the private actor. The private actor s search of the flash drive diminished Mr. Oliver s privacy interest in its contents, but it did not annihilate his Fourth Amendment right against unreasonable searches. None of the facts indicate that there were exigent circumstances to rationalize the warrantless search, nor do they indicate that there was a now or never situation in obtaining the information. Also, the good faith exception is inapplicable because there was no warrant for the State to reasonably rely on when they conducted their search of the flash drive. STANDARD OF REVIEW The issues presented regarding the violation of Mr. Oliver s Fourth and Fourteenth Amendment rights are of pure law; the standard of review is de novo. This Court owes no deference to the decisions of the courts which this case is on appeal. Ornelas v. United States, 517 U.S. 690, 691 (1996), McCauley v. City of Chicago, 671 F.3d 611, 615 (7th Cir. 2011). 5

14 ARGUMENT I. THE RATIONAL BASIS TEST ON THE LEGITIMACY OF A STATE INTEREST SHOULD BE ANALYZED AT THE TIME OF THE CHALLENGE TO THE LAW, HOWEVER, EVEN IF IT IS ANALYZED AT THE TIME OF ENACTMENT OF THE LAW, CLINTONIA STATUTE WOULD FAIL THE RATIONAL BASIS TEST. The Equal Protection Clause of the Fourteenth Amendment states that, No State shall deny to any person within its jurisdiction the equal protection of the laws. U.S. Const. amend. XIV, 1. This amendment was designed to prohibit many forms of discriminatory government conduct. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). An equal protection analysis is first initiated by distinguishing whether the class of persons in question are suspect, quasi-suspect, or non-suspect. Id. The strictest level of scrutiny is afforded to suspect classes and fundamental rights, such as race-based regulations or rights that are fundamental to [our] very existence and survival. Skinner v. Okl. ex rel. Williamson, 316 U.S. 535, 541 (1942). The second tier of the Equal Protection analysis is the protections afforded to quasi-suspect classes, such as discrimination based on gender. In the instant case, neither of these levels of heightened scrutiny are applicable; both parties concede that a rational basis analysis is the most appropriate. R. at 8. Rational basis scrutiny is the lowest tier of Equal Protection analysis and is reserved for all other considerations that fall outside of the suspect and quasi-suspect classes. Rational basis calls for the statute to be rationally related to a legitimate government interest. Romer v. Evans, 517 U.S. 620, 632 (1996). A Due Process claim against the denial of liberty interests also uses the rational basis test to adjudicate constitutionality, therefore, the rational basis inquiry will be applicable for both Equal Protection and Due Process claims. Dent v. West Virginia, 129 U.S. 114, 122 (1889). The State has stipulated seemingly legitimate interests in upholding the statute. 6

15 These interests are consumer protectionism, public health and safety, and economic protectionism; however, none of these interests are pertinent in this case. A. The rational basis test on the legitimacy of the State interest should be analyzed at the time of the challenge to the law because changed circumstances can render legislation obsolete. A law may be rational at the time of enactment, but it must also be rational at the time of the challenge because changes in social climate can render legislation obsolete. The rational basis test on the legitimacy of government interests should be analyzed at the time of the challenge because laws can have a constitutional shelf life. Allison Orr Larsen, Do Laws Have A Constitutional Shelf Life?, 94 TEX. L. REV. 59, 61 (2015). An act [that] imposes current burdens must be justified by current needs. Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 203 (2009). [When] constitutionality of a statute [is] predicated upon the existence of a particular state of facts [the statute] may be challenged by showing to the court that those facts have ceased to exist. United States v. Carolene Products Co., 304 U.S. 144, 153 (1938). In Shelby Cty. v. Holder, this Court held the Voting Rights Act ( Act ) of 1965 was unconstitutional because it was based on 40-year-old data and had no logical relationship to the present day. 133 S. Ct. 2612, 2627 (2013). The Act was authorized to ban discriminatory voting procedures in specific States which were deemed to have biased practices and low voter registration attendance. Id. at In order to achieve this goal, the Act prohibited the sanctioned states from enacting any laws related to voting without federal approval. Id. at The Act initially had a lifespan of five years but it was reauthorized to continue on many occasions and was upheld for over forty years. Id. at This Court noted the Act treated qualifying states differently despite our historic tradition that all the States enjoy equal 7

16 sovereignty. Id. Although the Act was against the grain of equal sovereignty at the time of enactment, it was surrounded by exceptional conditions that deemed it necessary. Id. at This Court concluded that the original conditions which justified impeding on equal sovereignty were no longer present in the jurisdictions afflicted by the Act. Shelby Cty., 133 S. Ct. at Therefore, the changed circumstances surrounding the legislation made it inapplicable at the time of the challenge and rendered the law unconstitutional. Id. at At the time of enactment, claimed to be a statutory solution to the sale of caskets which did not meet the standards set forth by the FDEA. R. at 5. The resolution that the FDEA used to contest this issue was to prohibit intrastate casket sales by individuals who were not licensed funeral directors. R. at 3. However, sixty-six years after this statute was enacted, it was proven to be based on a mere propaganda tactic used by the FDEA to restrict casket sales to licensed directors. R. at 5. Wealthy and powerful morticians lobbied for the legislation and it was only enacted to maintain control of the market and bar competition. R. at 5. This is distinguishable from Shelby where the initial legislation was based on factually correct surrounding circumstances that merely became outdated as the social environment changed. Here, the data the legislation was based upon was not only outdated, but established upon factually incorrect information. R. at 5. Furthermore, on November 6, 2014, the Clintonia Legislature recognized the regulation was based on alternative facts and thus repealed the FDEA s licensing requirement and R. at 5. This Court should follow its own analysis in Shelby because the FDEA s regulation is outdated and its factual basis is unfounded. The legislative and social climate at the time of the challenge is the most relevant lens to analyze the constitutionality of a law. It is not rationally sound for the judiciary to ignore socioeconomic developments. Changed circumstances may 8

17 render laws outdated, therefore, laws must pass constitutional muster at the time of enactment as well as at the time of the challenge. B. The FDEA s regulation criminalizing unlicensed intrastate casket sales was not a legitimate state interest at the time of enactment nor at the time of the challenge because the statute is not rationally related to consumer protectionism or health and public safety and mere economic protectionism is not a legitimate state interest. The FDEA s legislation regarding the construction and intrastate sale of caskets by unlicensed retailers is not rationally related to a legitimate state interest. When the court conducts a rational basis review, it does not require the government to provide an affirmative argument towards the rationality. St. Joseph Abbey v. Castille, 712 F.3d 215, 223 (5th Cir. 2013). However, a plaintiff may provide evidence of irrationality to negate the government s contention of legitimacy. Id. The Respondent claims that mere economic protectionism is a legitimate interest to pass constitutional muster, however, on its own, this is not a legitimate government interest. This Court noted that when a State s legislation is based merely upon economic protectionism, a virtual per se rule of invalidity has been erected. City of Philadelphia v. New Jersey, 437 U.S. 617, 624 (1978). The FDEA s restriction on unlicensed intrastate casket retailers is an unconstitutional provision because it does not survive constitutional muster at the time of enactment nor at the time of the challenge. 1. Consumer protectionism is not rationally related to a legitimate state interest because there is no evidence that unlicensed casket retailers engage in deceptive or unfair sales tactics. There was no evidence that unlicensed intrastate caskets retailers were practicing unfair or deceptive sales tactics. R. at 5. Conversely, there is evidence to show that funeral homes are using price gouging methods against their consumers. R. at 5. In St. Joseph Abbey v. Castille, 9

18 the court stated that third-party retailers have less incentive than funeral home retailers do to engage in deceptive sales tactics. 712 F.3d at 225. In St. Joseph Abbey, the monks of the monastery began constructing and selling two simple models of caskets priced at $1,500 and $2,000. Id. at 217. This was a considerably lower price than the licensed funeral homes charged for their merchandise. Id. Funeral homes engaged in the tactic of price bundling, in which they would not disclose the specific price of each service that the consumer would receive. Id. at 218. Once a rule was put in place to abolish this type of bundling, the significant markups that were placed on caskets came to light. Id. at 219. Further, if an individual seeking the funeral home s services purchased a casket from an out-ofstate retailer which was a permitted purchase or constructed their own casket, the funeral director would charge a mandatory service fee of $3,000 to $4,000 in addition to the price of the embalming or cremation and funeral services. Id. No matter the origin of the funeral merchandise, the funeral homes attempted to find a way to profit from it. St. Joseph Abbey, 712 F.3d at 219. In Craigmiles v. Giles, the court held the FDEA s bar on the unlicensed sale of caskets violated the Due Process Clause and the Equal Protection clause of the Fourteenth Amendment. 312 F.3d 220, 222 (6th Cir. 2002). Licensed funeral directors marked up their casket prices anywhere from % higher than unlicensed casket retailers for a near identical product. Id. at 224. The quality of the product was not affected whether a licensed or unlicensed individual sold it. Id. at 225. The court stated, restricting sales of caskets to funeral directors would seem to have an adverse effect on the quality of caskets. Id. at 226. Allowing third-party competition would lower the cost of protective caskets, thus higher quality caskets would be more affordable. Id. The licensing requirement is not rationally related to consumer protectionism because 10

19 nothing prevents licensed funeral directors from selling poor quality products for higher prices. Id. The FDEA s legislation only bars the intrastate sale of caskets by unlicensed retailers; it does not prohibit purchasing from interstate retailers or using self-constructed caskets. R. at 5. This is synonymous to St. Joseph Abbey, where the court noted that the licensing requirement bore no rational relationship to casket quality because the state did not regulate the construction of homemade caskets or caskets purchased from out-of-state retailers. Additionally, in St. Joseph Abbey, the court noted that licensed funeral directors engaged in deceptive sales tactics when they used price bundling schemes. In the instant case, the prices of caskets from licensed funeral directors are 800% higher than those of provided by unlicensed intrastate retailers. R. at 5. This is considerably higher than the % markup that was held unreasonable in Craigmiles. Also, as in Craigmiles, the quality of product is not affected whether it is provided by a licensed or unlicensed retailer. The caskets sold by unlicensed retailers are of identical quality. R. at 5. Providing competition in the market is more likely to raise the quality of caskets than adversely affect it. In Craigmiles, the court noted the best way to combat deceptive sales tactics and unreasonable prices would be to allow intrastate third-party retailers. There is no evidence in St. Joseph Abbey, Craigmiles, nor the instant case that unlicensed casket retailers engaged in deceptive sales tactics. Here, the State of Clintonia argues that a study conducted in 1955 showed at least 10% of unlicensed casket retailers took advantage of consumers by selling caskets which did not meet the FDEA s standards. R. at 5. However, in 2011 this study was exposed as a propaganda tool used by the funeral industry to maintain control of the casket market and bar competition. R. at 5. The licensing requirement is not 11

20 rationally related to consumer protectionism because nothing prevents licensed funeral directors from selling poor quality products for higher prices and there is no evidence that unlicensed retailers provide sub-par products. This Court should adopt the precedent set forth in the Fifth and Sixth Circuits because the facts are synonymous and the analysis is rational; there is a higher probability that morticians are engaging in deceptive sales tactics than unlicensed retailers. 2. Health and public safety is not rationally related to a legitimate state interest because there currently are no standards regarding casket construction and there is no evidence that unlicensed casket retailer merchandise is inferior in quality to those offered by funeral directors. Health and public safety is not rationally related to a legitimate government interest because the study that claimed 10% of products sold by unlicensed casket retailers did not meet the FDEA s standard was exposed as merely a propaganda tool sponsored by the Board. R. at 5. If a statute purporting to have been enacted to protect health or the public safety has no reasonable or substantial relation to those objects it is the duty of the court to [declare the rule unconstitutional.] Mugler v. Kansas, 123 U.S. 623, 661 (1887). In St. Joseph Abbey v. Castille, the court held that restricting intrastate casket sales bore no rational relationship to protecting consumers from violations of public health and safety. 712 F.3d at 226. The court noted: Louisiana does not regulate the use of a casket, container, or other enclosure for the burial remains; has no requirements for the construction or design of caskets; and [allows] individuals [to] construct their own caskets or purchase caskets from out-of-state suppliers via the internet [nor does it] even [require] a person to be buried in a casket. Id. at 217. Additionally, there were no requirements that funeral directors have any superior knowledge of the construction or sales of caskets. Id. at 226. In Craigmiles v. Giles, the court found that the FDEA did not function in any way to protect or promote public health and safety. 312 F.3d 220, 225 (6th Cir. 2002). The Board had 12

21 not established any standards for casket selection that held licensed funeral directors accountable. Id. Tennessee law did not require the deceased be buried in a particular type of casket, nor did it require they be buried in a container at all. Id. Tennessee claimed the licensing requirement safeguarded that individuals who handled the deceased disposed of them safely. Id. However, unlicensed retailers merely provided the container to the consumer, it was the funeral director who handled the bodies. Id. In no way did the unlicensed retailers engage in the embalming or handling of corpses. Id. The Sixth Circuit struck down the FDEA s bar on intrastate casket sales because it was not rationally related to a legitimate state interest. Craigmiles, 312 F.3d at 225. In Cornwell v. Hamilton, the court held the requirements for cosmetology were not rationally related to health and public safety when applied to African American hair braiders because the training required them to learn too many irrelevant, and possibly harmful, tasks. 80 F. Supp. 2d 1101, 1119 (S.D. Cal. 1999). Cornwell argued that she should not be required to obtain a cosmetology license because natural hair care is not synonymous to cosmetology. Id. at She did not claim or advertise to provide facials, manicures, pedicures, or hair removal. Id. A cosmetology license requires an individual to learn subjects A through Z, whereas Cornwell only offers A, B, and some of C. Id. at Also, the cosmetology license did not teach or test the hair braiding technique that Cornwell offered. Id. at Thus, the licensing requirement did not meet the State s interest of protecting public health and safety because it did not teach hair braiders how to avoid the dangers that arise when utilizing their skill set. Id. The statute was not unconstitutional on its face, but rather, as applied to natural hair care specialists it was not rationally related to a legitimate interest. Cornwell, 80 F. Supp. 2d at

22 The State of Clintonia based their prohibition and criminalization of intrastate casket sales on a study conducted in 1955 stating that 10% of unlicensed casket retailers sold products which did not meet the standards set forth by the FDEA. R. at 5. However, this study was proven to be factually baseless and merely a propaganda tool used to justify the legislation. R. at 5. Clintonia law used to have specifications for the construction of caskets for the protection of public health and safety, however those regulations were repealed in R. at 5. This is synonymous to Craigmiles, where the Board did not have any standards which funeral directors were held to when selecting caskets. Similarly, in St. Joseph Abbey, there was no requirement that funeral directors have any superior knowledge about the selection or construction of caskets. Respondent argues that subjecting the unlicensed retailers to the training necessary to conduct funeral services will guarantee that the deceased are properly prepared and buried. However, just as stated in Craigmiles, the unlicensed retailers would not engage in funeral services, but rather, merely provide the container to the consumer. It is the funeral director that handled the deceased and performed the funeral services. R. at 10. At no point does Mr. Oliver assert that he prepared the deceased for burial; he simply provided the container. R. at 10. Mr. Oliver does not contend the licensing requirement holds no value, but rather it provides no value to the sale and construction of caskets. Similar to Cornwell, the vice is not the licensing requirement on its face but its function as applied to unlicensed intrastate casket retailers. In Cornwell, the state s legislation required African American hair braiders to attend cosmetology school to learn tasks A through Z when, in fact, Cornwell s tasks only covered A, B, and some of C. Here, the State of Clintonia required Mr. Oliver to receive licensing for tasks A through Z, whereas he only offered consumers task A. 14

23 The State of Clintonia has no standards for casket construction; citizens are free to bury their deceased in handmade caskets or no casket at all. R. at 5. The FDEA purports to have enacted the statute to protect public health and safety, however the statute has no reasonable relationship to the objective. This Court should find that health and public safety is not rationally related to a legitimate state interest. 3. On its own, economic protectionism is not a legitimate state interest because it is merely an attempt for funeral directors to maintain control of the market and bar competition. Economic protectionism is mere favoritism and not a legitimate government interest because neither precedent nor broader principles suggest that mere economic protection of a particular industry is a legitimate governmental purpose. St. Joseph Abbey, 712 F.3d at When a State s legislation is based merely upon economic protectionism, a virtual per se rule of invalidity has been erected. City of Philadelphia v. New Jersey, 437 U.S. 617, 624 (1978). In St. Joseph Abbey v. Castille, the court held economic protectionism, as the sole reason to uphold legislation, is not a legitimate state interest that satisfies a rational basis analysis. 712 F.3d at 222. In St. Joseph Abbey, the petitioner constructed two models of caskets priced at $1,500 and $2,000 a modest price in comparison to those offered by funeral homes. Id. at 217. Under Louisiana state law, sales of caskets to the public within the state may be made only by a state licensed funeral director and funeral home. Id. at 218. Additionally, the requirements to achieve a license and run a funeral home are weighty in themselves. Id. Some notable factors include mandatory embalming facilities, a parlor for thirty people, six display caskets, and employment of a director who has completed a full time apprenticeship, and the director s principal occupation must be funeral directing. Id. The court noted that none of these requirements have any relation to the caskets themselves. Id. 15

24 In Craigmiles v. Giles, the court held the FDEA s bar on unlicensed retail sale of caskets did not pass the rational basis scrutiny because the State was not able to provide a non-refutable legitimate interest. 312 F.3d at 222. The plaintiff controlled two independent casket stores in the state of Tennessee that only offered caskets, urns, grave markers, and other retail merchandise of this type. Id. at 223. His store in no way advertised or offered embalming, cremation, burials, or funeral services. Id. In order to receive licensing, an individual must have completed a two-year program with either one year of accredited mortuary school and one-year apprenticeship, or two years of apprenticeship. Id. at 222. Although it was possible for the unlicensed retailers to complete the two-year training required to sell the caskets according to the Tennessee statute, it undoubtedly put a significant financial barrier to enter the casket market by submitting to two years of lost wages and the cost of education. Id. at 225. When Tennessee enacted the licensing requirement legislation, it did not include the sale of caskets, but rather was limited to funeral ceremonies, cremation, embalming, and burial. Id. It wasn t until twentyyears post-enactment that the definition was expanded to include the retail sale of caskets. Craigmiles, 312 F.3d at 225. The court stated that this expansion, which specifically singled out a particular group without a rationale, was a strong indication that it was enacted merely for economic temperament and had no relation to public health or safety. Id. at In Merrifield v. Lockyer, the court held economic protectionism for its own sake, regardless of its relation to the common good, cannot be said to be in furtherance of a legitimate government interest. 547 F.3d 978, 991 (9th Cir. 2007). Discrimination is not always categorized by treating individuals differently; the Ninth Circuit notes that one of the most destructive forms of discrimination occurs when two different things are treated as if they were exactly alike. Id., quoting Jenness v. Fortson, 403 U.S. 431, 442 (1971). In Merrifield, the 16

25 statute in question treated pesticide using pest controllers the same as non-pesticide using pest controllers. Id. at 986. The statute required non-pesticide using pest controllers to dedicate three years toward obtaining a license, complete field experience and pass a Board administered exam primarily focused on pesticide using pest controllers. Id. Merrifield did not argue that the standards of qualification encroached on his right to Equal Protection, but rather, that the qualification of a Board administered exam that is focused on the storage, use, and disposal of pesticides was not applicable to pest controllers who did not use pesticides. Id. The court stated that requirements which are connected to such a weak rationale, mere economic protectionism, fail to meet the relatively easy standard of rational basis review. Merrifield, 547 F.3d at 991. In the instant case, the only legitimate government interest to which the Respondent could argue is economic protectionism. However, this Court stated in City of Philadelphia v. New Jersey, that economic protectionism as the sole basis for legislation is per se invalid. In St. Joseph Abbey and Craigmiles, the state legislation required the intrastate sale of caskets to be limited to licensed funeral directors and homes. This is synonymous to the instant case where the State of Clintonia holds the same requirement. R. at 3. In St. Joseph Abbey, Craigmiles and the instant case, unlicensed casket retailers are not barred from completing the prerequisites to achieve a license, but the completion of the requirements are a heavy burden. R. at 4. To obtain licensing, unlicensed retailers must complete a three-year training program; however, in St. Joseph Abbey and Craigmiles, only two years of education or training is required. Additionally, only 5% of the licensing training relates to caskets and urns. R. at 4. The education requirement forces unlicensed casket retailers to learn topics they will likely never encounter, such as embalming, restorative art, and funeral 17

26 services. R. at 4. Also, Kevorkian College is the only institution in Clintonia that is accredited in mortuary sciences. R. at 5. If an individual lives in a city that is far from the only state accredited college, they will be forced to relocate in order to be licensed, further expounding the burden of the unlicensed retailer. The courts in St. Joseph Abbey and Craigmiles found that this licensing requirement was a hefty burden on the unlicensed retailers while holding no posture relevant to a legitimate state interest; this Court should find the same in light of the additional burden the State of Clintonia imposes. In Craigmiles, the initial legislation did not bar unlicensed casket sales, but was amended to include the restriction. In Clintonia, the legislature amended the FDEA to add , which provided criminal sanctions for unlicensed intrastate casket transactions. R. at 4. Additionally, the legislation was only amended after extensive lobbying by a wealthy and powerful group of Clintonia morticians. R. at 4. In Craigmiles, the Sixth Circuit stated that legislative expansion, which specifically singled out a particular group without a rationale for doing so, was a strong indication that it was enacted merely for economic temperament and had no relation to public health or safety. Here, the addition of has no legitimate rationale and was enacted merely for the economic benefit of morticians. In Merrifield, the court states that discrimination can occur by treating different categories of people as if they were same. Clintonia is treating those who construct caskets as if they are the same as those who cremate, embalm, and conduct funeral services. Although both fall within the scope of funerals, they should not be treated as if they are similarly situated. Mr. Oliver did not attempt to claim he was qualified to tend to the deceased nor that he was qualified to conduct a funeral service; he merely advertised his ability to construct simple and affordable caskets. R. at 5. Requiring Mr. Oliver to achieve licensing that does not pertain to his trade 18

27 creates an undue burden, just as the court in Merrifield found that requiring non-pesticide using pest controllers to take an exam which pertained primarily to pesticides generated an undue burden. When a statute singles out individuals and is supported by a weak rationale, like economic protectionism, courts have agreed that it cannot and should not surpass the rational basis scrutiny, despite its inherent deferential treatment. Death is inevitable, morticians will always have a substantial income whether or not casket sales are a contributor. The licensing requirement provides many benefits to those who are tending to the deceased and conducting the funeral services, however, it has no legitimate ties to the construction of caskets. This Court should adopt the holding and reasoning from the Fifth, Sixth, and Ninth Circuit because economic protectionism, on its own, is not a legitimate interest. II. THE STATE OF CLINTONIA VIOLATED MR. OLIVER S FOURTH AMENDMENT RIGHT TO BE PROTECTED AGAINST UNREASONABLE SEARCHES OF HIS EFFECTS, RENDERING THE EVIDENCE INADMISSABLE AND NOT SUBJECT TO THE GOOD FAITH EXCEPTION, AND FLASH DRIVES SHOULD BE GIVEN THE SAME HEIGHTENED LEVEL OF PROTECTION THAT THIS COURT HAS AFFORDED TO CELL PHONES. The Fourth Amendment to the United States Constitution ensures that all people have the right to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. U.S. Const. amend. IV. The Fourth Amendment is bound upon the State and government actors through the Due Process clause of the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 655 (1961). The exclusionary rule is applied when evidence is collected in violation of the Fourth Amendment. Herring v. United States, 555 U.S. 135, 139 (2009). The exclusionary rule renders evidence inadmissible when it has been obtained improperly, thus, creating a deterrent effect against Fourth Amendment violations. Id. at Application of the exclusionary rule must be analyzed in light of the facts surrounding the violation. Id. at

28 The Fourth Amendment is not binding upon private citizens who are not acting as an instrumentality of the state. United States v. Jacobsen, 466 U.S. 111, 113 (1984). This policy, referred to as the private search doctrine, does not provide an open-ended scope for government officials to expand the initial search conducted by the private individual. Walter v. United States, 447 U.S. 649, 657 (1980). Mr. Oliver s privacy interest was diminished by the private individual s search; however, this does not indicate his Fourth Amendment right has vanished completely. Id. at 659. In order to investigate the remaining content on the flash drive outside the initial search completed by the private citizen, the State must obtain a search warrant. Id. at 657. Cell phones and other electronic devices are afforded more protection against unreasonable search and seizure because they are capable of holding vast amounts of personal information. Riley v. California, 134 S. Ct. 2473, 2489 (2014). Absent exigent circumstances there is no legitimate reason to conduct a warrantless search of a cell phone or electronic device. Id. at A. The State was not reasonable in conducting a further search into the contents of the flash drive without a warrant because they exceeded the scope of the private search doctrine, therefore, the evidence discovered by the State was inadmissible. The State was not authorized to expand the search conducted by the private actor, therefore, the State conducted an unreasonable search of Mr. Oliver s flash drive. Searches [that are] conducted outside the judicial process are per se unreasonable under the Fourth Amendment. Katz v. United States, 389 U.S. 347, 357 (1967). The legality of a government s subsequent search is restricted by the scope of the initial private search. United States v. Jacobsen, 466 U.S. 109, 116 (1984). Searches conducted outside the limit of the initial private actor s search require a warrant. Walter v. United States, 447 U.S. 649,

29 In United States v. Jacobsen, Federal Express employees at a distribution center found a damaged package with its contents viewable from the exterior. 466 U.S. at 111. It was immediately apparent that the package contained contraband. Id. The employees further investigated the package to discover a white substance later confirmed to be cocaine. Id. The employees called the DEA to confirm the contents of the container, which was left opened. Id. at 121. This Court noted a package in the possession of a carrier no longer has a right to privacy from government searches when the carrier has previously searched the container and it remained unsealed with the contents in plain view at the time the agent conducts their search. Id. The employees walked the agent through their search and he was able to see the package s contents in plain view and it was virtually certain to contain contraband. Jacobsen, 446 U.S. at 118. Any subsequent searches by a government actor must be tested by the degree by which they exceed or expand the scope of the initial, private search. Id. at 115. The court held the subsequent search by the government actor did not exceed or expand the scope of the initial private search. Id. In United States v. Lichtenberger, the court held the scope of the subsequent search conducted by government actors exceeded the initial private search conducted and, therefore, tainted the admissibility of the evidence. 786 F.3d 478, 485 (6th Cir. 2015). Reasonableness of an official search is analyzed in light of the facts surrounding the invasion at the time it occurred. Id. at 485. In Lichtenberger, defendant s girlfriend hacked into his computer and uncovered illicit images. Id. at 479. Upon discovery of this evidence, the private searcher contacted the police and a secondary search was conducted in order to verify what had been found. Id. at 480. For a secondary search to fall within the scope of the private search doctrine exception, the state actor must conduct his search with virtual certainty that review of the electronic device and its 21

30 contents would not tell [him] anything more than he already had been told by the private actor. Id. at 488. The court held this was plainly not the case. Lichtenberger, 786 F.3d at 488. The private actor could not recall whether the the images the state found were the same as her initial search, as there were hundreds of other photos in the folder, and the state official admitted that he may have asked the private actor to open files other than those she had previously viewed. Id. In Walter v. United States, this Court held when a package has been opened by private individuals before it is given to government actors the Fourth Amendment protections of the effect are not dissolved, but merely frustrated. 447 U.S. at 659. In Walter, a package containing homosexual pornographic films was inadvertently sent to the wrong destination. Id. at 651. The incidental recipient of the package was able to infer but not determine the contents of the films due to the suggestive drawings and explicit descriptions of the contents located on the box. Id. at 652. At no point did the private actor view the actual contents of the film. Id. The individual submitted the films to the FBI who subsequently viewed the films without making any effort to acquire a warrant. Id. The Court noted that although the labels on the film boxes gave probable cause to believe that the films were obscene in nature, it was not sufficient to support an exigent circumstance justifying a warrantless search. Id. at 654. In Coolidge v. New Hampshire, this Court held the plain view exception to warrantless searches is only applicable if the evidence was found inadvertently and not if the police had prior knowledge of what would be found and failed to secure a warrant. 403 U.S. 443, 467 (1971). When the right to privacy is being challenged, it must be decided by a neutral magistrate, not by the actions of the police or any other government actor. Id. at 449. In Coolidge, the police conducted a warrantless search of Coolidge s car. Id. at 460. He was aware that he was a suspect of a crime and already had ample opportunity to destroy evidence that would implicate 22