No IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, JAMES T. OLIVER, Petitioner, THE STATE OF CLINTONIA, Respondent

Transcription

1 No IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 2017 JAMES T. OLIVER, Petitioner, v. THE STATE OF CLINTONIA, Respondent ON WRIT OF CERTIORARI TO THE SUPREME COURT OF CLINTONIA BRIEF FOR PETITIONER Team U Counsel for Petitoner

2 QUESTIONS PRESENTED 1. As the facts compelling the enactment of a criminal prohibition governing intrastate commerce no longer exist, should this Court continue to recognize its jurisprudence regarding the changed circumstances doctrine and find that , Clint. Stat. is no longer rationally related to a legitimate government interest? 2. Did the State of Clintonia violate Petitioner's Fourth Amendment rights as defined under any of this Court's Jurisprudence, and if so, was this violation reprehensible enough to invoke the exclusionary rule? i

3 TABLE OF CONTENTS QUESTIONS PRESENTED... i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iii CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED... iv STATEMENT OF THE CASE... 1 SUMMARY OF THE ARGUMENT... 2 ARGUMENT... 3 I. The Legitimacy of a Governmental Interest is subject to the Rational basis Test at the time of the Challenge to the State law, and the State of Clintonia s Criminal Prohibition on the Unlicensed Sale of Caskets Fails to pass this Test II. The Supreme Court of Clintonia s Ruling That Officer Jones Conduct Did Not Amount to a Violation of the Fourth Amendment Is Patently Wrong and Must be Overruled. 15 CONCLUSION ii

4 TABLE OF AUTHORITIES Cases Allied Structural Steel Co. v. Spannaus, 438 U.S. 234 (1978) Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985) Coolidge v. New Hampshire, 403 U.S. 443 (1971) Craigmiles v. Giles, 312 F.3d 220 (6th Cir. 2002)... 9 Davis v. U.S., 564 U.S. 229 (2011)... 18, 19, 20 Elkins v. United States, 364 U.S. 206, 217 (1960) Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U.S. 400 (1983)... 9, 11 Heller v. Doe, 509 U.S. 312, 319 (1993) Herring v. U.S., 555 U.S. 135, 144 (2009)... 19, 20 Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356 (1973)... 6 Lichtenberger, 786 F.3d 478 (6th Cir. 2015) , 25 Midlantic Nat. Bank v. New Jersey Dep't of Envtl. Prot., 474 U.S. 494 (1986)... 7 Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456 (1981)... 3, 4 Nashville, C. & St. L.R. Co. v. Walters, 294 U.S. 405 (1935) Nordlinger v. Hahn, 505 U.S. 1 (1992) Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357 (1998) Powers v. Harris, 379 F.3d 1208 (10th Cir. 2004) Riley v. California, 134 S.Ct (2014) , 17, 25 Romer v. Evans, 517 U.S. 620 (1996)... 7 St. Joseph Abbey v. Castille, 712 F.3d 215 (5th Cir. 2013).... 7, 9, 10 Turner Braod. Sys. v. F.C.C., 520 U.S. 180 (1997)... 7 U.S. v. Ackerman, 831 F.3d 1292 (10th Cir. 2016)... 15, 16, 17, 18 U.S. v. Jacobsen, 466 U.S. 109 (1984) , 22 U.S. v. Jones, 565 U.S. 400 (2012) , 15, 16, 21, 22 U.S. v. Leon, 468 U.S. 897 (1984) U.S. v. Carolene Products Co., 304 U.S. 144, 153 (1938)... 1, 3, 4 Whole Woman s Health v. Hellerstedt, 136 S. Ct (2016)... 4, 5, 6 Williamson v. Lee Optical of Oklahoma, Inc, 348 U.S. 483 (1955)... 2, 3 Constitutional Provisions U.S. CONST. AMEND. IV... iv, 3, 15, 17, 20, 22 U.S. CONST. AMEND. XIV... iv, 3, 10, 13 Statutes Clintonia Funeral Directors and Embalmers Act ("FDEA")... iv, 6, 7, 8, 9, 11, 12 iii

5 CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED This case involves questions relating to the Fourteenth Amendment of the United States Constitution, as the State of Clintonia has violated Petitioner s right to equal protection and due process of law. U.S. CONST. AMEND. XIV. This case also presents issues pertaining to the Fourth Amendment s protection against unreasonable searches and seizures. U.S. CONST. AMEND. IV. Furthermore, this case presents questions arising from the State of Clintonia s Funeral Directors and Embalmers Act ( FDEA ), specifically the criminal penalty that, prior to repeal, was codified as , Clint. Stat. iv

6 STATEMENT OF THE CASE Casket Sales. In order to sell a casket in Clintonia, the retailer must be a licensed funeral director. R. at 3. It is a three-year process to become a licensed funeral director, involving at least two years of apprenticeship and either an additional third year or a year of classwork. R. at 4. This legislative action was intended to protect the monopoly funeral directors held over casket sales. R. at 4. This law was based on a study that claimed third-party retailers engaged in deceptive sales practices and did not live up to the casket standards the State of Clintonia imposed. R. at 5. However, within the last several years the State repealed their casket standards, and the study upon which the statute was based was proven to be propaganda put forward by the funeral directors. R. at 5. In light of these developments, the Clintonia legislature recognized that this prohibition served no rational basis, and the ban on unlicensed retail sales was repealed in November R. at 3. However, this repeal was only prospective, and does not benefit the Petitioner, James T. Oliver. Confrontation. Mr. Bruce Walker came to the State of Clintonia one week after his retirement from the F.B.I. to visit his sickly mother. R. at 5. After his mother passed away, Mr. Walker purchased a casket from Mr. Oliver, an experienced casket-maker. R. at 6. During a conversation with Mr. Walker, Mr. Oliver admitted he did not have the requisite licensure to sell the casket. R. at 6. Following this revelation, Mr. Walker went to Mr. Oliver s home to discuss Mr. Oliver s non-sanctioned business. R. at 6. Mr. Walker, after seeing no vehicle at Mr. Oliver s residence, knocked on the door and entered Mr. Oliver s home without being invited. R. at 6. Mr. Walker entered Mr. Oliver s bedroom and removed a USB drive from his bedside nightstand. R. at 6. 1

7 Private Search. The USB drive could contain two terabytes of data and included copies of Mr. Oliver s birth certificate, social security card, medical records, bank records, and tax information. R. at 6. Mr. Walker inserted the USB drive into his computer and search through several folders, subfolders, and files before discovering a single image that he believed to be child pornography. R. at 6 7. Mr. Walker took the USB drive to the Sandersburg Police Department and met with Officer Rookie Jones. R. at 7. Police Involvement. Mr. Walker was unable to remember exactly which picture file he had accessed. R. at 7. Officer Jones tried to recreate Mr. Walker s search, but ended up looking at many individual files that Mr. Walker did not view during his search. R. at 7. Mr. Walker was unable to state with any specificity which file he originally viewed and has refused to look at the images in order to confirm the original file from his private search. R. at 7. SUMMARY OF THE ARGUMENT The Supreme Court of Clintonia incorrectly held that , Clint. Stat. was rationally related to a legitimate state interest. (Part I.) Likewise, the Supreme Court of Clintonia erred in holding that the Petitioner s Fourth Amendment rights were not violated by a warrantless government search of his personal property. (Part II.) The Supreme Court of Clintonia erred in finding Clint. Stat. to pass a rational basis test, as under this Court s changed circumstances doctrine, a law must be considered in light of the facts at the time of the legal challenge (Part I.A.) As such, at the time of Petitioner s challenge, the statute and criminal prohibition on the sale of caskets by unlicensed retailers is in no way related to a rational governmental interest. (Part I.B.) Under these changed circumstances, the State s claim that the statute protects consumers from deceptive trade practices is not rationally related to a legitimate state interest. (Part I.B.i.) Additionally, the 2

8 State s efforts to protect public health and safety through this statute are no longer rationally related to a legitimate state interest. (Part I.B.ii.) Finally, the State erronesouly claims they have a legitimate state interest in economic protectionism, a claim that is counter to this Court s jurisprudence. (Part I.B.iii.1.) However, even if economic protectionism were a legitimate state interest, the State s efforts to regulate this interest are arbitrary and irrational. (Part I.B.iii.2.) The State of Clintonia violated Petitioner s Fourth Amendment rights and the fruit of this violation must not be used against Petitioner. As Jones has abrogated Jacobsen when a physical trespass occurs, Officer Jones unquestionably committed an illicit search in this case. (Part II.A.) The appropriate remedy for such a violation of the Fourth Amendment is suppression of any recovered evidence under the exclusionary rule. (Part II.B.) Indeed, even if Jacobsen and the private search doctrine control, Officer Jones exceed the scope of the prior private search and the fruit of this violation should be suppressed. (Part II.C.) ARGUMENT I. The Legitimacy of a Governmental Interest is subject to the Rational basis Test at the time of the Challenge to the State law, and the State of Clintonia s Criminal Prohibition on the Unlicensed Sale of Caskets Fails to pass this Test. The State of Clintonia has violated the petitioner s Fourteenth Amendment right to equal protection and due process of law by enacting a law that infringes on his economic liberty interests. As held by this court, 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. United States v. Carolene Products Co., 304 U.S. 144, 153 (1938). As the facts upon which , Clint. Stat. is based no longer exist; it is incumbent upon the courts to consider whether the statute at issue is still rationally related to a legitimate government interest. 3

9 Petitioner agrees that such laws restricting this important constitutional right are subject to a rational basis test, but will demonstrate that the State of Clintonia has failed to provide a rational reason to govern legitimate government interests. Further, the State of Clintonia has attempted to utilize their criminal prohibition to regulate an area of commerce that cannot be said to be of legitimate interest to them. In order to earn a license as a funeral director in the State of Clintonia, prospective licensees must either complete a year of course work at the only accredited mortuary school in Clintonia followed by two years of apprenticeship, or do three years of apprenticeship with a licensed funeral director. When taking classes at Kevorkian College, the student will only spend five percent of her time learning about issues related to caskets and urns. If the apprenticeship path is followed, a student could become a licensed funeral director without ever once learning about caskets, as it is not required under Clintonian law. Thus, in order to sell a casket to a grieving family during their time-of-need, it is completely possible that the licensed funeral director will know nothing about caskets beyond their price. The Board of Funeral Directors and Embalmers ( Board ), which establishes all of these learning requirements under the FDEA, is composed of a majority of licensed funeral directors. The Clintonia Funeral Directors and Embalmers Act ( FDEA ) places criminal penalties on anyone but a small sector of the economy from engaging in the intrastate sale of a time-of-need casket. Based on now-disproven facts propagated by the financially protected licensed funeral directors of Clintonia, the FDEA is intended to punish carpenters, woodworkers, or any other Clintonian craftsmen who directly sell caskets to consumers when tragedy strikes their loved ones within the state borders. 4

10 Petitioner is one of these craftsmen, and sold a casket to a grieving family for $8,000 less than a licensed funeral director was willing to charge. For violating the FDEA, Petitioner was criminally charged under , Clint. Stat. However, following the application of the jurisprudence of both this Court and the Federal Circuit Courts, it is clear that this criminal prohibition is not a legitimate exercise of government power. A. The Rational Basis Test is based on the Legitimacy of the Governmental Interest at the Time of the Challenge to the State Law when New Facts can be presented to the Court. In Williamson v. Lee Optical of Oklahoma, Inc., this Court issued a ruling that allowed for a wide array of conceivable reasons to justify the legitimacy of the governmental interest under the rational basis test. 348 U.S. 483, 489 (1955). Rather than needing to find a realistic rational basis, let alone insisting the government argue one that met such a standard, Williamson would stand to accept any hypothetical reason for a law that a court could come up with on their own. Williamson, 348 U.S. at 488. It is under this precedent that much of the Court s jurisprudence on rational basis testing arises. However, nowhere in the Williamson ruling did this Court specifically overturn or abrogate the approach to rational basis testing found in U.S. v. Carolene Products Co., 304 U.S. 144 (1938). Carolene Products articulated the changed circumstances doctrine, wherein an individual may challenge the constitutionality of a statute predicated upon the existence of a particular state of facts... by showing to the court that those facts have ceased to exist. 304 U.S. at 153. This rule allows for a court to view the protection of an individual s constitutional right in light of real world events and changes that may have arisen since a law was enacted originally. The world may have long sense passed by a statute that was passed in, for instance, Or information may have come to light demonstrating that the continued application of 5

11 such a statute would be based on information that is not only wrong today, but was wrong at the time of enactment. The changed circumstance doctrine from Carolene Products recognizes that the Constitution may not itself change, but the world has in the intervening years. This is not a way to simply avoid the legislative process and remove laws that are disfavored, such as is suggested by the Supreme Court of Clintonia. That Court pointed to the case of Minnesota v. Clover Leaf Creamery Co., as proof from this Court that simply because a legislature was mistaken in passing legislation does not entitle a court to overturn the case. 449 U.S. 456, 464 (1981). The Supreme Court of Clintonia is correct in saying that, when viewed in light of the Williamson ruling; mistake alone would not be enough for legislation to fail the rational basis test. But the holding from Carolene Products goes beyond simple mistake: it asks if, in light of the changed circumstances, there is no longer a rationally related exercise of state power over a matter of legitimate state interest. This distinction gets to the heart of the matter of the case at issue currently before the Court. The State of Clintonia passed the FDEA in 1932 after extensive lobbying by a wealthy and powerful group of Clintonia s morticians. In 1956, the state legislature passed an amendment that prohibited anyone but a licensed funeral director from selling caskets within the state. Id. In passing this amendment more than sixty years ago, the legislature looked to a study that showed unlicensed casket sellers would take advantage of consumers by selling caskets that did not meet the State s quality standards. The changed circumstances happened several years ago, however, as the study was debunked as propaganda by the funeral director lobby, and the standards held out by the state as important for the health and safety of the populace were repealed. These changes took away the entire purpose of the State of Clintonia s two legitimate 6

12 government interests. Under a Clover Leaf analysis, mistake of the legislature alone would not be enough to find this law to be unconstitutional. However, taking the necessary next step and applying Carolene, it is clear that the changed circumstances doctrine would lead to a different outcome. Carolene allows for the courts to ensure that when a governmental entity is curtailing any kind of liberty interest, they are doing it under rational reasons in today s day and age. In 2016, this Court issued a decision in Whole Woman s Health v. Hellerstedt in which Carolene was cited as good law. 136 S. Ct (2016). In citing to Carolene, the Court discussed how circumstances may change such that a law passed at the time could offend a future constitutional right: [f]actual developments may show that constitutional harm, which seemed too remote or speculative to afford relief at the time of an earlier suit, was in fact indisputable. In our view, such changed circumstances will give rise to a new constitutional claim. Whole Woman s Health, 136 S. Ct. at The Whole Woman s opinion cited to Carolene for support of this assertion, stating [T]he 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. citing Carolene, 304 U.S. at 153. This rule, promulgated by the Court many decades ago, but cited just last year as good law, should control the analysis of whether the rational basis test is 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. There is undisputed evidence in the record that demonstrates the basis on which the FDEA was enacted are no longer rationally related to the legitimate state interest the statute is intended to govern. Longstanding Supreme Court precedent, cited to as favorable only a year ago, makes it clear that a statute enacted based on certain facts may be challenged by showing to 7

13 the court that the facts no longer exist. Id. The Supreme Court of Clintonia held that the reliance on the Whole Woman s Health was misplaced reliance on dictum, but it is clear from a complete analysis of this Court s jurisprudence that a change in circumstance can invalidate a statute. If such a change necessarily removes the rational basis on which a state predicates its regulation of a legitimate state interest, it would be just for a court to invalidate said statute. Another longstanding ruling by this Court, cited to by the Whole Woman s Health decision, states that [a] 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 is applied. Id. citing Nashville, C. & St. L.R. Co. v. Walters, 294 U.S. 405, 415 (1935). It may be that, under Williamson and Clover Leaf, there is no ability for an individual to overcome a statute that could be found to have one conceivably rational justification. However, when the jurisprudence of this Court is taken in toto, Carolene and Whole Woman s Health clearly demonstrate that a statute restricting the liberty of the challenger can be shown to be irrational at the time of the challenge. Thus, the Supreme Court of Clintonia should be overturned, and this Court should reaffirm its long-held precedent regarding the changed circumstances doctrine in an rational basis analysis framework. B. At the Time of the Challenge, the Statute and Criminal Prohibition on the Sale of Caskets by Parties other than Licensed Funeral Directors is not Rationally Related to a Legitimate Government State Interest. A statute must be given a strong presumption of validity under rational basis review, and will be upheld if there is any reasonably conceivable state of facts that could provide a rational basis. Heller v. Doe, 509 U.S. 312, 319 (1993). Thus, in order to invalidate a statute under rational basis review, Petitioner must negat[e] every conceivable basis that might support it. Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973). 8

14 The FDEA prevents individuals who have not spent the required years of apprenticing and classwork in order to become licensed and sell caskets. The question before this court is whether requiring a casket maker such as Petitioner be licensed funeral directors bears a rational relationship to any legitimate purpose. Clintonia argues, and the Supreme Court of Clintonia held, the FDEA is an exercise of the legitimate state interests of protecting consumers from deceptive sales tactics, and protecting the health and public safety of the state. These are undoubtedly areas in which the State should govern. 1 However, under the changed circumstances doctrine, it can be shown that the FDEA is not protecting these areas rationally in relation to the facts as they are now known. The third interest that the state is claiming to protect has not been found by this Court to be one in which a state can exercise a legitimate state interest: economic protectionism. Because each of the three bases offered by the state to justify their exercise of regulation cannot pass even the most deferential of constitutional tests, the State of Clintonia s argument should necessarily fail. i. The State of Clintonia s Actions to Protect Consumer s from Deceptive Sales Tactics are not Rationally Related to a Legitimate State Interest. As discussed in the above section, there must be some legitimate interest rationally related to the action the government is taking when the state action is challenged in court. There is no question that a State government has an interest in protecting its consumers from deceptive sales tactics, and Petitioner concedes this point. Turner, 520 U.S. at However, the second portion of the rational basis test focuses on whether the action taken by the government bears a rational relation to some legitimate end. Romer v. Evans, 517 U.S (1996). 1 See, e.g., Turner Braod. Sys. v. F.C.C., 520 U.S. 180 (1997) (holding that consumer protection is a legitimate interest of the federal government); Midlantic Nat. Bank v. New Jersey Dep't of Envtl. Prot., 474 U.S. 494 (1986) (holding states have a legitimate interest in protecting health and public safety). 9

15 The circumstances upon which the FDEA and its criminal penalties were based are not longer in existence. The Circuit Court in this case found that the study regarding manipulative retail casket sellers has been debunked as nothing more than a tool by the funeral industry to maintain control and bar competition. It logically flows that the funeral directors in Clintonia would actually receive the greatest benefit and be most susceptible to using manipulative tactics to sell caskets. St. Joseph Abbey v. Castille, 712 F.3d 215, 225 (5th Cir. 2013). By allowing a state-enforced monopoly in the industry, these licensed funeral directors are able to ask $9,000 for a casket for which a third-party seller such as Petitioner would only charge $1,000. There is no benefit for the consumer when the state allows this kind of monopoly to be protected, and it is has become clear that the basis upon which this monopoly was enacted was fraudulent. Finally, depending on the path a potential licensee takes in order to become qualified, she may not have to learn anything at all about caskets. As there are no longer any specific standards that must be met by caskets, this may not be a problem. However, if there are no standards that must be met, then it is not rationally related to claim that only those who have earned a license as a funeral director should be able to sell goods. Thus, the Supreme Court of Clintonia was wrong to overturn the lower court s decision regarding the irrationally related actions taken to regulate a legitimate state interest. Therefore, this Court should overturn the Supreme Court of Clintonia. ii. The State s Actions under the FDEA to Regulate Health and Public Safety are not Rationally Related to a Legitimate State Interest. In 1956, the Clintonia State Legislature passed an amendment sponsored by Senator Gaines, a third generation mortician. The Senator directed the attention of his colleagues to a study claiming that unlicensed retail casket sellers took advantage of consumers by selling caskets that did not meet certain standards. These standards were eventually repealed six years ago in Once it became clear that there was not a concern regarding communicable diseases 10

16 or other contamination due to poor casket quality, the relationship of the State to its regulation of this industry was no longer rational under the changed circumstances doctrine. Thus, even if casket selection has an effect on health and public safety, restricting the sale of these caskets bears no rational relationship to that state interest. That not only the casket standards, but both the FDEA s license requirements and the criminal penalties accompanying it demonstrates that the State of Clintonia itself recognizes that their efforts were no longer serving a rational relationship to a legitimate state interest. Under the Carolene Products standard of changed circumstances, it should be clear that, upon this challenge to the state law at the time Petitioner was punished, there is no rationally related interest between the FDEA and the legitimate state interest of regulating health and public safety within the State. At no point has it been suggested by Petitioner or by Clintonia that a third-party seller of caskets would take part in the embalming process of a funeral, or the logistics, or any other facet of the event other than selling a casket. Much as in Louisiana, Clintonia does not require any specific level of quality to which caskets must be built. St. Joseph Abbey, 712 F.3d at 226. And much as with the Fifth Circuit 2, this Court should find that there is no rational relationship between the State of Clintonia s restriction on the sale of caskets in a time-of-need and the legitimate state interest of protecting public safety. The Supreme Court of Clintonia should therefore be reversed, and the FDEA and its criminal penalties be found to violate Due Process and Equal Protection after failing to pass the rational basis constitutional test. 2 As well as the Sixth Circuit in in Craigmiles v. Giles, 312 F.3d 220 (6th Cir. 2002) (holding the prohibition on sale of caskets by unlicensed retailers violated Due Process and Equal Protection rights). 11

17 iii. Economic Protectionism is not a Legitimate State Interest, and in the Alternative, there is no Rational Relation between the State Statute and the State Interest. The aforementioned legislative debates conducted by Senator Gaines offers this Court a clear and compelling articulation of the naked economic protectionism the FDEA was intended to enact. 3 This Court has never held that economic protectionism in an intrastate commerce setting is a legitimate state interest. Instead, it has found that special interests must not be protected by a state in a manner that causes detriment to others. Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U.S. 400, 411 (1983) (finding a distinction between legitimate state purposes and providing a benefit to special interests ). This Court should adhere to its own precedent and state unequivocally that economic protectionism is not a legitimate exercise of state power. However, even if the Court declines to rule against economic protectionism as illegitimate, it is clear that the FDEA regulations, and therefore , Clint. Stat., are entirely irrational. The high level of importance that Clintonia places on licensure when dealing with the sale of time-of-need caskets is irrational, as a miniscule amount of the training required even addresses the sale of caskets. Requiring those who would sell these caskets to go through this training at the one available location in the state to learn a curriculum that is ninety-five percent unrelated to their goals represents a barrier to entry that cannot be said to bear a rational relationship to the economic protectionism interests of Clintonia. 3 My colleagues, we need to protect morticians in Clintonia from unlicensed competition.... 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, n

18 1. Economic Protectionism is not a Legitimate Interest for the State of Clintonia. The Tenth Circuit Court of Appeals held the Supreme Court has consistently ruled that protecting or favoring one particular intrastate industry, absent a specific federal constitutional or statutory violation, is a legitimate state interest. Powers v. Harris, 379 F.3d 1208, 1220 (10th Cir. 2004). However, the Supreme Court has never explicitly stated that economic protectionism is a legitimate state interest. Instead, the Court s cases indicate that protecting or favoring a particular intrastate industry is not an illegitimate interest when protection of the industry can be linked to advancement of the public interest or general welfare. St. Joseph Abbey, 712 F.3d at 222. Both the Powers and St. Joseph rulings dealt with facts nearly identical to the case before the Court, the regulation of the sale of caskets. That the Tenth and Fifth Circuits would differ so broadly in their interpretation demonstrates the need for this Court to affirmatively rule on this issue. The analysis performed by the Fifth Circuit is more persuasive and should be adopted by this Court, as it far better comports with the Equal Protection Clause of the Fourteenth Amendment and protects the interests of individual citizens from government favoritism in the name of protectionism. U.S. CONST. AMEND. XIV, 1. Economic Protectionism is little more than rewarding the politically powerful for their connections and influence, often to the detriment of the consumers themselves. This Court has distinguished protecting the interests of well-connected special interest groups from a legitimate state interest previously. In Kansas Power & Light, the Court held that if state regulation constitutes a substantial impairment, the State, in justification, must have a significant and legitimate public purpose behind the regulation, such as the remedying of a broad and general social or economic problem. 459 U.S. at citing Allied Structural Steel Co. v. 13

19 Spannaus, 438 U.S. 234, 249 (1978). The Court went on to state [t]he requirement of a legitimate public purpose guarantees that the State is exercising its police power, rather than providing a benefit to special interests. Id. at 412. Protecting a market for licensed funeral directors so they may charge 500% more for caskets than unlicensed sellers is clearly catering to special interests. Senator Gaines stated this prohibition was to keep the state s morticians, something he was himself, thriving. The exercise of state police power to protect the market for the benefit of the mortician and funeral director lobby is a nearly textbook example of providing a benefit to special interests. Kansas Power & Light, 459 U.S. at 412. This Court should view the actions of the State of Clintonia under the FDEA as a violation of its own precedent and reverse the ruling of the Supreme Court of Clintonia, and should further recognize and extend the ruling from Fifth Circuit Court of Appeals holding that economic protectionism is not a legitimate state interest. However, even if the Court declines to make such a ruling, the Economic Protectionism argument should fail as being irrationally related to this apparent legitimate state interest. 2. If Economic Protectionism is a Legitimate State Interest, Clintonia has Acted Irrationally and Arbitrarily in its Enforcement. In 2011 the State of Clintonia repealed standards for caskets that were enacted in response to the now-disproven study propagated by the funeral directors lobby. Following this repeal there are no longer any requirements placed on caskets. Id. This indicates that the barrier to entry into the market to sell a consumer product that has no actual regulation is disproportionate to the point of irrationality. The circumstances changed six years ago such that there was no longer any regulation of caskets themselves, only on those who could sell them. 14

20 This Court has held that the relationship of the action taken by a state to its goal cannot be so attenuated as to render the distinction arbitrary or irrational. Nordlinger v. Hahn, 505 U.S. 1, 10 (1992) citing Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 446 (1985). Holding that it is anything other than arbitrary or irrational to require three years of schooling and training to sell a good that has no statutorily defined standard of quality would go too far. This Court should recognize that, if economic protectionism is a legitimate state interest, the level of benefit that the special interest group that is the funeral directors lobby receives is an arbitrary and irrational exercise of state power. Therefore, the Court should rule that the holding of the Clintonia Supreme Court be reversed as an unconstitutional abrogation of the rights of the Petitioner. II. The Supreme Court of Clintonia s Ruling That Officer Jones Conduct Did Not Amount to a Violation of the Fourth Amendment Is Patently Wrong and Must be Overruled. The police, specifically Officer Jones, have trampled Mr. Oliver s Fourth Amendment right to be protected from unreasonable search and seizure and must not be allowed to use the results of this trampling against Mr. Oliver. The Fourth Amendment of the Constitution of the United State grants [t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. U.S. CONST. AMEND IV. The ultimate touchstone of the Fourth Amendment is to reasonableness. Riley v. California, 134 S.Ct. 2473, 2482 (2014). Where a search is undertaken by law enforcement to discover evidence of criminal wrongdoing, reasonableness generally requires the obtaining of a judicial warrant. Id. Further, a search conducted without a warrant is per se unreasonable with carefully guarded exceptions existing. Coolidge v. New Hampshire, 403 U.S. 443, 481 (1971). 15

21 Officer Jones never attempted to attain a search warrant at any point during the duration of his investigation. In fact, Officer Jones was only aware of the existence of the USB drive at issue in this case after Mr. Oliver s home was invaded and its contents removed by Mr. Walker. Such a patent intrusion into Mr. Oliver s privacy coupled with such blatant disregard for his constitutional rights should not be allowed to stand. Reversal of the Supreme Court of Clintonia s judgment is appropriate and necessary for three distinct reasons: 1) the Jacobsen case relied upon to justify the Supreme Court of Clintonia s ruling has been abrogated by the recent Jones case and under Jones, Officer Jones conducted an illicit search and seizure; 2) the so-called good faith exception alluded to in the Jones case is inapplicable; and 3) even if Jacobsen is found to be controlling of this case, Officer Jones actions violated the Fourth Amendment and the private search doctrine as they wholly exceed the scope of a prior private search. The issues contemplated by the present matter are relatively new across the scope of both time and jurisprudence. As such, many of the laws and norms applied to prior Fourth Amendment cases require reexamination and, in some cases, may be wholly inapplicable. However, the existing body of law and the tests derived from this body demonstrate the error of the Supreme Court of Clintonia and the need for immediate reversal. A. U.S. v. Jones Controls Potential Fourth Amendment Violations When a Physical Trespass Has Occurred And Under Jones, Mr. Oliver s Fourth Amendment Rights Have Been Violated. In U.S. v. Jones, this Court determined that a government actor could conduct a Fourth Amendment search by either infringing upon a reasonable expectation of privacy or by physically intruding upon a constitutionally protected place or item. 565 U.S. 400, (2012). The Jones court reasoned that the Fourth Amendment had historically been applied to 16

22 protect government trespasses upon the specifically enumerated areas described within the Amendment. Id. at 406. Specifically, these areas include a person s house, papers and effects. Id. Further, the Court explicitly stated that the Katz v. U.S. ruling did not lessen or repudiate the protection allotted to these specific places. Id. at The ultimate holding that there is more than one way to commit a Fourth Amendment search is the precise reason Jones has come to supersede Jacobsen when the underlying search involves a physical trespass. i. Jones Has Abrogated Jacobsen and the Private Search Doctrine When a Physical Trespass Occurs. To understand how Jones has come to control in cases concerning a physical trespass when a private actor provides a state actor with some type of evidence, the underlying rationale of the Jacobsen case and its private search doctrine must be understood. The Jacobsen case essentially employs the private search doctrine to determine whether or not a search has taken place at all. U.S. v. Jacobsen, 466 U.S. 109, (1984). The private search doctrine and its tests perform this task within the scope of Katz, which analyzes whether or not there is a subjective expectation of privacy and whether this expectation is reasonable. Id. However, the Jones case has clearly provided that the Fourth Amendment does not begin and end with Katz. Specifically, the Jones court stated Fourth Amendment rights do not rise or fall with the Katz formulation. Jones, 565 U.S. at 406. Therefore, the Jacobsen private search doctrine only analyzes one possible way a Fourth Amendment search could have occurred and is not dispositive alone. The notion that the private search doctrine is not the only to determine if a search has occurred in situation such as this has already been embraced by lower appellate courts. In U.S. v. Ackerman, the Tenth Circuit Court of Appeals identified that Jones may well be the appropriate analysis when a physical trespass has occurred rather than private search 17

23 doctrine as defined in U.S. v. Jacobsen for situations involving information given by a private actor to a state actor. 831 F.3d 1292 (10th Cir. 2016). The Ackerman court acknowledged that the point of the private search doctrine is to determine whether or not an actual search occurred. Id. at The private search doctrine, when resolved in favor of the government, essentially identifies that a search has not occurred due to the lack of a legitimate privacy interest as identified in Katz. Id. (citing U.S. v. Jacobsen, 466 U.S. 109, 123 (1984)). The Ackerman court specifically stated that the fact the government s conduct doesn t trigger Katz doesn t mean it doesn t trigger the Fourth Amendment. Id. at While the Ackerman court still applied the private search doctrine analysis as provided in Jacobsen, it then applied a separate analysis as laid out in Jones. Id. at ii. Officer Jones Violated the Fourth Amendment Under the Jones analysis. Specifically, the Ackerman case dealt with an incident in which one of four attachments within an triggered software designed to identify child pornography. Ackerman, 831 F.3d at After the service provider identified that one of the four attachments contained child pornography, they forwarded the , including all four attachments, to the National Center for Missing and Exploited Children (NCMEC), which was later found to be a state actor. Id. The NCMEC opened all four attachments and discovered that each attachment contained child pornography. Id. Applying the Jones analysis, the court stated that, by opening the along with its attachments, the government entity had searched a private chattel. Id. at In doing so, the court pointed out that because of the nature of this and its attachments, it could have contained any sort of information outside of the contraband suspected. Id. Keeping in line with the analysis given in Jones, the court identified that while the framers would have been 18

24 concerned with protecting physical correspondence in the form of an effect, the same rationale can easily be applied to electronic communication. Ackerman, 831 F.3d at Just as the in Ackerson was a personal effect found to be protected by the Fourth Amendment, so to were the contents of Mr. Oliver s USB drive. The Ackerman court correctly observed that the at issue was presumptively private and could have contained any number of things beside contraband. Id. at If a simple was considered to have the potential to carry any number of things, so could Mr. Oliver s USB drive. In fact, Mr. Oliver s USB drive contained incredibly sensitive personal information including his birth certificate, a copy of his social security card, his medical records, bank records, and tax information. When Officer Jones illicitly opened numerous files that had not been viewed before, he impermissibly trespassed upon Mr. Oliver s private effects. As discussed earlier, these effects are specifically enumerated in the Fourth Amendment. U.S. v. Jones, 565 U.S. at Even though the Ackerman court efficiently applied the Jones analysis, it is important to point out how much more egregious Officer Jones conduct was than the officer in Ackerman. The state actor in Ackerman opened four attachments after only one had been identified as possible child pornography. Ackerman, 831 F.3d at In the present case, Officer Jones open nine extra files other than the one single picture Mr. Walker had identified as child pornography. Coupled with the fact that Mr. Walker could not identify which file he had viewed before, this is the exact type of trespass the Fourth Amendment seeks to prevent. Just as the Ackerman court aptly stated, that seems pretty clearly to qualify as exactly the type of trespass to chattels that the framers sought to prevent when they adopted the Fourth Amendment. Id. at The approach prescribed by Jacobsen is clunky and difficult to apply in the face of changing technology with an ever increasing ability to hold more and more personal data within 19

25 one s palms. As this court observed in U.S. v. Riley, modern electronic devices have the capability to store incredibly sensitive data and in vast quantities. 134 S.Ct. 2473, 2489 (2014). In light of this new capability and following the decision of this court in Jones, a more protective and traditional view of the Fourth Amendment is necessary. That view specifically protects, among other things, a person s effects. In this case, Officer Jones illicitly obtained and combed through Mr. Oliver s USB drive, which contained some of the most private and sensitive documents in his possession. The Fourth Amendment explicitly bars this type of warrantless search. As such, it must be concluded that Officer Jones actions amounted to a violation of this sacred right. In violating Mr. Oliver s Fourth Amendment rights under the Jones analysis, Officer Jones obtained incriminating evidence he intended to, and ultimately did, use against Mr. Oliver. While one image may have been viewed outside of Fourth Amendment protection by a private searcher, the images recovered from the USB drive are fruit from the poisonous tree. The Ackerman court found as much in its ruling and excluded all evidence recovered against the defendant. Ackerman, 831 F.3d at The same must occur in this case. This conclusion is only further bolstered by the fact that the private searcher, Mr. Walker, cannot be sure which picture it is he viewed outside of the Fourth Amendment s protection. Thus, even without the fruit of the poisonous tree argument, it is simply impossible to tell which images should be excluded by virtue of Officer Jones illegal search. As such, all images of child pornography must be excluded as evidence to be used against Mr. Oliver. B. The Good Faith Exception to the Requirement to Attain a Search Warrant Is Inapplicable In This Case. Like any well reasoned rule of law, the Fourth Amendment and its line of cases are riddled with exceptions. While the Fourth Amendment provides the protections described above, 20

26 the exclusionary rule serves as the Amendment s teeth. Under this rule, evidence obtained in violation of the Fourth Amendment may be suppressed. Davis v. U.S., 564 U.S. 229, 236 (2011) (citing Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357, 363 (1998)). Numerous exceptions take into account the harrowing perils many law enforcement officers encounter on a daily basis. One such exception that has been put forth as an alternative argument by the State of Clintonia is the good faith exception. In this case, the exclusionary rule should apply with the good faith exception failing as inappropriate. This conclusion becomes apparent when examining the origins and desired effects of each doctrine. i. The Exclusionary Rule Is Appropriate to Apply In This Case. The exclusionary rule described above was designed to compel respect for the constitutional guaranty provided for in the Fourth Amendment. Elkins v. United States, 364 U.S. 206, 217 (1960). In essence, the rule serves a deterrent to prevent law enforcement from violating an individual s Fourth Amendment rights. See id. This powerful rule is not to be implemented automatically when evidence is gathered in violation of the Fourth Amendment, but reserved for cases where the deterrent benefits gain through suppression outweigh the social costs of exclusion. U.S. v. Leon, 468 U.S. 897, 910 (1984). The analysis has evolved to focus on the severity of police misconduct when a Fourth Amendment violation occurs. Id. at 909. Later cases have held that when police conduct is deliberate, reckless, or grossly negligent [in relation to Fourth Amendment rights] the deterrent value of exclusion is strong and tends to outweigh the resulting costs. Davis, 564 U.S. 229, 238 (2011) (quoting Herring v. U.S., 555 U.S. 135, 144 (2009)). In other words, the more reprehensible the police misconduct, the more likely it is that the exclusionary rule should be applied. 21

27 Officer Jones conduct in this case was at best grossly negligent and reckless, and deliberate at worst. He took a USB drive from a complete stranger without asking how it was attained or anything about the stranger himself, spare for a passing comment asking whether or not he was cop. Even after this misstep, Officer Jones proceeded to pry through the contents of the USB drive without requiring any degree of specificity from Mr. Walker. Further, there was absolutely no need to take the actions Officer Jones elected to take. The USB drive, whose contents he hoped to search, was firmly within his possession and without risk of going anywhere. There was no risk of spoliation, nor was there a risk to his safety or that of anybody else. Given these circumstances, there is simply no excuse for not using Mr. Walker s purported experience to gain a search warrant in order to access the USB drive. Rather than honor the Fourth Amendment, Officer Jones chose to blatantly disregard its protections in the name of convenience. Such a high degree of police misconduct must be considered extremely fragrant and reprehensible enough to invoke the remedy given in the form of the exclusionary rule. This is the exact type of misconduct the rule was designed to deter and one can hardly think of a more appropriate case for its application. While the exclusionary rule is a strong remedy, it is a necessary one to protect the rights given under the Fourth Amendment. This exclusionary rule is not completely inflexible as several exceptions, such as the good faith exception advanced by the State of Clinton, serving to alleviate any shortcomings. However, this case is not appropriate for application of the good faith exception. ii. The Good Faith Exception Should Not Be Applied In This Case. The good faith exception mentioned above is to be applied when police act with an objectively reasonable good faith belief that their conduct is lawful. Davis at 238 (quoting 22

28 Leon, 468 U.S. 897, 909 (1984)). The exception has been expanded to include incidents where police conduct is simply isolated negligence. Id. (citing Herring, 555 U.S. at 137). Effectively, this exception precludes application of the exclusionary rule as the deterrent effect is outweighed in these situations. Id. Among the various applications of the rule, this Court has recently held that when a police officer conducts a search in reliance on binding judicial precedent at the time, the exception may apply. Id. This application of the exception is premised on the belief that law enforcement officers will learn what is required of them by the Fourth Amendment and its line of cases. See Hudson v. Michigan, 547 U.S. 586, 599 (2006). This court further explained this approach by stating that the exclusionary rule should not be applied to deter objectively reasonable law enforcement activity. Davis, 564 U.S. at 241. Officer Jones actions in this case definitively show that he did not act with the objective reasonableness that serves as the basis for the application of the good faith exception via judicial precedent. As that State of Clintonia purports to justify Officer Jones actions under the Jacobsen and the private search doctrine, this holding should not be considered binding judicial precedent in light of the Jones decision as detailed above. Further, even under the private doctrine as given in Jacobsen, Officer Jones actions were still unconstitutional as will be detailed below. The failure of Officer Jones to attain a warrant or follow applicable judicial precedence bars any application of the good faith exception to the exclusionary rule. Rather than barring application of the exclusionary rule, Office Jones conduct only shows the necessity for suppression of the evidence in this case. Before the Court is an incident in which a private citizen invaded another citizen s home, went into his bedroom, and removed contents from the home. If this violation of privacy was not enough, Officer Jones furthered the atrocity of the incident by violating Mr. Oliver s Fourth Amendment rights. While Mr. Walker 23