Supreme Court of the United States

Transcription

1 No IN THE Supreme Court of the United States UNITED STATES OF AMERICA, Petitioner, v. J.H. WIGMORE A/K/A LITTLEFINGER, Respondent. On Writ of Certiorari to The United States Court of Appeals for the Twelfth Circuit BRIEF FOR RESPONDENT TEAM Julius H. Miner Moot Court Competition

2 QUESTIONS PRESENTED I. Under the Fourth Amendment: a. Whether a parked car on the curtilage of one s home may be subject to a warrantless search. b. Whether a car parked on a rural property enclosed by a six-foot-tall wooden fence encompassing the home is within the curtilage of the home. II. Under the Sixth Amendment: a. Whether a defendant s right to counsel is barred from applying to any preindictment confrontation with a prosecutor. b. Whether the right to counsel applies when law enforcement agents and a prosecutor use the threat of criminal charges as leverage to engage a defendant in plea negotiations. i

3 TABLE OF CONTENTS QUESTIONS PRESENTED... i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iii OPINIONS BELOW... vi STATEMENT OF THE CASE... 1 SUMMARY OF THE ARGUMENT... 4 ARGUMENT... 6 I. THE TWELFTH CIRCUIT CORRECTLY HELD THAT THE NW S WARRANTLESS SEARCH OF WIGMORE S CAR VIOLATED THE FOURTH AMENDMENT BECAUSE THE AUTOMOBILE EXCEPTION DOES NOT APPLY TO A CAR PARKED ON ITS OWNER S CURTILAGE AND WIGMORE S CAR WAS PARKED WITHIN THE CURTILAGE OF HIS HOME A. The Fourth Amendment automobile exception does not apply to vehicles parked within the curtilage of the residence Homes and surrounding curtilage are entitled to the greatest protection under the Fourth Amendment, outweighing the significance of the automobile exception The rationales behind the automobile exception do not justify extending it to vehicles parked within the curtilage of the home B. Wigmore s car was parked on the curtilage of his home The garage was in close proximity to Wigmore s home Winterfell s solid wooden fence clearly demarcates the extent of the curtilage The garage is used for intimate activities Wigmore took substantial steps to protect Winterfell from public view II. THE TWELFTH CIRCUIT CORRECTLY HELD THAT WIGMORE WAS DENIED HIS SIXTH AMENDMENT RIGHTS WHEN HE WAS CONFRONTED BY ROTH WITHOUT COUNSEL BECAUSE THAT ENCOUNTER WAS A CRITICAL STAGE OF THE PROSECUTION TO WHICH THE RIGHT TO COUNSEL HAD ATTACHED A. A bright-line rule precluding the right to counsel from attaching prior to indictment is inconsistent with precedent and the objectives of the Sixth Amendment B. Wigmore s right to counsel was violated when Roth and the NW confronted him at Winterfell and engaged him in plea negotiations without defense counsel present The Sixth Amendment right to counsel had attached by the time Roth and the NW confronted Wigmore at Winterfell The confrontation between Wigmore and the government was a critical stage CONCLUSION ii

4 TABLE OF AUTHORITIES Cases Bruce v Duckworth, 659 F.2d 776 (7th Cir. 1981) California v. Carney, 471 U.S. 386 (1985)... 8 Chrisco v. Shafran, 507 F. Supp (D. Del. 1981) Coolidge v. New Hampshire, 403 U.S. 443 (1971)... 6, 9 Daughenbaugh v. City of Tiffin, 150 F.3d 594 (6th Cir. 1998) Escobedo v. Illinois, 378 U.S. 478 (1964) Florida v. Jardines, 569 U.S. 1 (2013)... 7 Johnson v. Zerbst, 304 U.S. 458 (1938) Katz v. United States, 389 U.S. 347 (1967)... 9 Kirby v. Illinois, 406 U.S. 682 (1972)... 14, 15, 17 Mack v. City of Abilene, 461 F.3d 547 (5th Cir. 2006)... 6 Missouri v. Frye, 566 U.S. 134 (2012)... 14, 15, 19 Moore v. Illinois, 434 U.S. 220 (1977) Oliver v. United States, 466 U.S. 170 (1984)... 7 Payton v. New York, 445 U.S. 573 (1980)... 7 Roberts v. Maine, 48 F.3d 1287 (1st Cir. 1995) Rothgery v. Gillespie Cty., 554 U.S. 191 (2008)... 14, 17, 18 Smith v. Maryland, 442 U.S. 735 (1979) State v. Lejeune, 576 S.E.2d 888 (Ga. 2003)... 8 Tri State Steel Constr., Inc. v. Occupational Safety & Health Review Comm'n, 26 F.3d 173 (D.C. Cir. 1994)... 9 iii

5 United States ex rel. Hall v. Lane, 804 F.2d 79, (7th Cir. 1986) United States v. Ash, 413 U.S. 300 (1973) United States v. Biles, 100 F. App x 484 (6th Cir. 2004) United States v. Burgess, 1998 WL (4th Cir. Mar. 30, 1998) United States v. Busse, 814 F. Supp. 760 (E.D. Wis. 1993)... 17, 18 United States v. Depew, 8 F.3d 1424 (9th Cir. 1993) United States v. Diehl, 276 F.3d 32 (1st Cir. 2002) United States v. Dunn, 480 U.S. 294 (1987)... passim United States v. Gouveia, 467 U.S. 180 (1984) United States v. Johnson, 256 F.3d 895 (9th Cir. 1993) United States v. Karo, 468 U.S. 705 (1984)... 7 United States v. Larkin, 978 F.2d 964 (7th Cir. 1992) United States v. Moody, 206 F.3d 609 (6th Cir. 2000) United States v. Orona, 166 F. App x 765 (5th Cir. 2006)... 8 United States v. Reilly, 76 F.3d 1271 (2d Cir. 1996)... 10, 12 United States v. Sinisterra, 77 F.3d 101 (5th Cir. 1996)... 6 United States v. Thomas, 120 F.3d 564 (5th Cir. 1997) United States v. Turner, 206 F.3d 609 (6th Cir. 2000) United States v. Wigmore, No CR-0375 (Nw. D. Ru. May 5, 2016)... vi, 3 United States v. Wilson, 719 F. Supp. 2d 1260 (D. Or. 2010) Wigmore v. United States, No (12th Cir. Jan. 9, 2017)... passim Constitutional Provisions U.S. Const. amend. IV... 6 iv

6 U.S. Const. amend. VI Statutes 18 U.S.C. 1962(a)... 3 Other Authorities Pamela R. Metzger, Beyond the Bright Line: A Contemporary Right-to-Counsel Doctrine, 97 Nw. U. L. Rev (2003) Steven J. Mulroy, The Bright Line s Dark Side: Pre-Charge Attachment of the Sixth Amendment Right to Counsel, 92 Wash. L. Rev. 213, (2017) v

7 OPINIONS BELOW The opinion of the United States District Court for the Northwestern District of Rubloff is reported at United States v. Wigmore, No CR-0375 (Nw. D. Ru. May 5, 2016). The opinion of the United States Court of Appeals for the Twelfth Circuit is reported at Wigmore v. United States, No (12th Cir. Jan. 9, 2017). vi

8 STATEMENT OF THE CASE In 2010, a group of highly trained FBI special agents, the Nights Watch (NW), began investigating a powerful criminal organization called the Red Phoenix. Wigmore v. United States, No (12th Cir. Jan. 9, 2017), at *2. The Red Phoenix, whose operations center around Windy City, Rubloff, is led by Rico Suave (Suave). Id. Over the years, the NW learned the Red Phoenix operates via a network of Volkswagen dealerships that help distribute contraband using red Volkswagen Bugs. Id. at *3. In 2015, NW agents discovered a new lead. Id. Donnie Rodritzker (Rodritzker), a smuggler for the Red Phoenix, was stopped by the NW while transporting a truckload of red Volkswagen Bugs. Id. When agents searched the cars, they found guns, drugs, and a significant amount of cash. Id. At that point, the NW and Rodritzker struck a deal, and Rodritzker agreed to talk in exchange for immunity. Id. While Rodritzker did not know Suave s identity, he pointed the NW to someone who might: J.H. Wigmore (Wigmore). Id. Wigmore engaged in several lines of business, including the operation of a number of Volkswagen dealerships throughout the city. Id. While the NW had long suspected Wigmore s involvement in the Red Phoenix, they did not have definitive evidence linking him to the organization. Id. Emboldened by Rodritzker s statement, NW agents and Assistant U.S. Attorney Ira S. Roth (Roth) left for Wigmore s residence to confront him. Id. Winterfell, Wigmore s estate, sits far back from public roads, and its grounds are enclosed by a six-foot-tall wooden fence protecting it from public view. Id. at *3, *15. Posted intermittently on the wooden fence are large signs reading, BEWARE OF DOGS: KEEP OUT. Id. at *4. The only entrance to the property is an iron gate that is rusted open. Id. Within the wooden fence lies Wigmore s residence, a garage, and a tennis court. Id. A short 1

9 driveway extends from the gate to the garage, and Wigmore s mailbox and intercom are attached to the northern wall of the garage. Id. The garage, located approximately 120 feet from the house, is divided into two sections: a storage area for cars and landscaping equipment and a shower and changing room. Id. at *4, *31. The southern wall of the garage has a separate door to the shower room, and there is a dirt path connecting this door to the tennis court. Id. at *4. An invisible fence stands between Wigmore s residence and the rest of the structures, and a dotted line of signs runs alongside the invisible fence, notifying visitors that Wigmore s two dogs are contained within the fence. Id. Upon arriving at Winterfell, the NW and Roth drove through the open gate and parked on Wigmore s driveway. Id. They noticed Wigmore s car parked on the same driveway. Id. A group of NW agents searched the unlocked car without a warrant and found 100 kilograms of powder cocaine in the trunk. Id. at *5. Another group of agents and Roth had a meeting with Wigmore at his residence. Id. Wigmore asked to called John Paul (Paul), his attorney, as soon as they arrived, but Paul did not answer. Id. Roth informed Wigmore that Rodritzker flipped on him and that Wigmore was going down unless he cooperated. Id. If Roth s threat was not coercive enough, Wigmore was even pressured out of speaking with Paul when he returned his call. Id. Wigmore decided to confess in exchange for immunity, and Roth, notwithstanding the absence of his attorney, negotiated an immunity agreement. Id. Wigmore had just finished confessing that the Volkswagen car dealerships served as a front for the Red Phoenix and was about to reveal Suave s identity when Paul rushed in and interrupted the negotiation. Id. at *6. Because Wigmore did not end up revealing Suave s identity, he lost immunity and was prosecuted. Id. 2

10 Wigmore was indicted with violating the Racketeer Influenced and Corrupt Organizations Act (RICO). 18 U.S.C. 1962(a); Wigmore, No , at *6. He filed a pretrial motion to suppress the evidence seized from his vehicle and the incriminating statements he made to law enforcement, arguing that his Fourth and Sixth Amendment rights would be violated if that evidence were admitted. Id. See United States v. Wigmore, No CR-0375 (Nw. D. Ru. May 5, 2016). The district court denied Wigmore s motion, and Wigmore entered a conditional guilty plea, reserving his right to appeal the decision on the suppression motion. Id. The Twelfth Circuit reversed the district court s judgment and vacated Wigmore s conviction, having found that Wigmore s Fourth and Sixth Amendment rights were violated. Id. The Government appealed, and this Court granted certiorari. 3

11 SUMMARY OF THE ARGUMENT The Twelfth Circuit properly reversed Wigmore s conviction because the NW s warrantless search of Wigmore s car that turned up contraband evidence violated the Fourth Amendment and the uncounseled plea negotiation conducted by Roth that elicited incriminating statements violated the Sixth Amendment. Wigmore therefore requests that this Court affirm the Twelfth Circuit s decision vacating his conviction and remanding for further proceedings in the Northwestern District of Wigmore with an order to suppress the illegally obtained evidence. This Court should affirm the Twelfth Circuit s holding that the NW s warrantless search of Wigmore s car violated the Fourth Amendment. Parked vehicles on the curtilage of one s home do not create an exception to the general Fourth Amendment requirement that law enforcement officers procure a warrant before conducting a search. First, the home receives paramount protection under the Fourth Amendment. Second, the rationales of inherent mobility and lessened privacy expectations behind the automobile exception to the warrant requirement do not apply strongly enough to parked cars on curtilage to justify extending that exception. The NW s warrantless search of Wigmore s car violated the Fourth Amendment because the car was on the curtilage of Wigmore s home and absent exigent circumstances, the NW was required to procure a warrant before conducting that search. The close proximity of the garage in which Wigmore s car was parked to his house, the enclosure of Wigmore s property by a sixfoot-tall solid fence, the intimate uses of the garage as a shower and changing room, and the substantial steps Wigmore took to prevent access to his property in putting up signage all weigh in favor of finding that the garage in which the car was parked was within the curtilage of Wigmore s home and therefore protected by the Fourth Amendment. 4

12 This Court should also affirm the Twelfth Circuit s holding that the uncounseled plea negotiation conducted by Roth violated the Sixth Amendment. The Sixth Amendment right to counsel applies at all critical stages of a prosecution after the right attaches, which can include certain stages prior to the filing of formal charges. A bright-line rule that the right to counsel may never attach before formal proceedings are initiated is inconsistent with precedent and undermines the Sixth Amendment s objective of preventing the accused from being overwhelmed by the complexities of the criminal justice system through an expert adversary in the public prosecutor. Wigmore s right to counsel was violated when Roth engaged him in pre-indictment plea negotiations because those negotiations were a critical stage of the prosecution. The right had attached because the government s confronting Wigmore with the evidence against him and threatening him with criminal punishment established an adversarial relationship between them. Furthermore, that negotiation was a critical stage of the prosecution because it required Wigmore to make decisions involving legal complexity carrying the potential for substantial prejudice and that could not have made rationally without the expertise of defense counsel. 5

13 ARGUMENT I. THE TWELFTH CIRCUIT CORRECTLY HELD THAT THE NW S WARRANTLESS SEARCH OF WIGMORE S CAR VIOLATED THE FOURTH AMENDMENT BECAUSE THE AUTOMOBILE EXCEPTION DOES NOT APPLY TO A CAR PARKED ON ITS OWNER S CURTILAGE AND WIGMORE S CAR WAS PARKED WITHIN THE CURTILAGE OF HIS HOME. The Twelfth Circuit was correct in holding that the NW s warrantless search of Wigmore s car violated the Fourth Amendment because the car was parked on the curtilage of his home, which may not be searched without a warrant or exigent circumstances. The Fourth Amendment protects [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, and this Court has interpreted it to establish a general rule that law enforcement officers procure a warrant before conducting a search. The so-called automobile exception at issue in this case is an exception to this general rule, and it permits law enforcement to search a vehicle without a warrant if there is probable cause to believe that the vehicle contains evidence or contraband. The automobile exception does not apply to parked cars on curtilage. While this Court has not spoken on this precise issue, the Fifth Circuit s decisions refusing to apply the automobile exception to residential areas are instructive. See Mack v. City of Abilene, 461 F.3d 547, 553 n.2 (5th Cir. 2006) ( [The automobile exception] applies in a parking lot since a lot is generally open to the public. ) (internal quotation marks omitted); United States v. Sinisterra, 77 F.3d 101, 105 (5th Cir. 1996) ( Here, the mall parking lot was not related to anyone s residence ). This Court held in Coolidge v. New Hampshire that the automobile exception does not apply to a vehicle parked in a private driveway because a search or seizure carried out on a suspect s premises without a warrant is per se unreasonable. 403 U.S. 443, 474 (1971). Because the rationales supporting the automobile exception are weakened in the context of parked cars on 6

14 private property and the curtilage of one s home is entitled to special protection, this Court should hold that the automobile exception does not apply to cars parked on curtilage. A. The Fourth Amendment automobile exception does not apply to vehicles parked within the curtilage of the residence. The automobile exception does not apply to vehicles parked on curtilage because the Fourth Amendment affords the home and curtilage surrounding it paramount protection outweighing the justification for the automobile exception. Moreover, the rationales behind the exception do not justify a warrantless search of a car located in the curtilage. 1. Homes and surrounding curtilage are entitled to the greatest protection under the Fourth Amendment, outweighing the significance of the automobile exception. The home receives paramount protection under the Fourth Amendment, and this protection outweighs the rationales for the automobile exception. See Florida v. Jardines, 569 U.S. 1, 6 (2013) ( [W]hen it comes to the Fourth Amendment, the home is first among equals. ); United States v. Karo, 468 U.S. 705, (1984) ( Our cases have not deviated from this basic Fourth Amendment principle... [that searches] and seizures inside a home without a warrant are presumptively unreasonable absent exigent circumstances. ) (emphasis added); Payton v. New York, 445 U.S. 573, 601 (1980) ( [T]he overriding respect for the sanctity of the home... has been embedded in our traditions since the origins of the Republic. ). This special protection extends to curtilage, the area immediately surrounding and associated with the home. Oliver v. United States, 466 U.S. 170, 180 (1984). Because the curtilage is due the same level of privacy protection owed to the home itself, this Court should hold that the automobile exception is not applicable to curtilage. 7

15 2. The rationales behind the automobile exception do not justify extending it to vehicles parked within the curtilage of the home. Both rationales for the automobile exception apply with significantly less force to cars parked on curtilage: (1) their ready mobility creates circumstances of exigency, rendering the warrant requirement impractical and (2) the public s reduced expectation of privacy due to the government s pervasive regulation of automobiles. There is a distinction in Fourth Amendment jurisprudence between cars that are and are not parked in residential areas. See California v. Carney, 471 U.S. 386, 386 (1985) ( When a vehicle is being used on the highways or... is found stationary in a place not regularly used for residential purposes, the two justifications for the vehicle exception come into play. ) (emphasis added). The first rationale, cars ready mobility, does not apply to those parked within the curtilage because they are not immediately mobile. An unoccupied car located in a driveway, with its engine turned off, poses no immediate risk of moving elsewhere. See State v. Lejeune, 576 S.E.2d 888, 893 (Ga. 2003) (holding that the automobile exception does not apply because the defendant's car was... parked in his residential parking space and he and his girlfriend, his alleged cohort, were neither in nor had access to it). If a vehicle parked in a residential area poses a flight risk rendering the warrant requirement impractical, a warrantless search would be justified on exigent circumstances rather the automobile exception. See United States v. Orona, 166 F. App x 765, 766 (5th Cir. 2006). The second rationale, diminished expectations of privacy due to extensive regulation, is also inapplicable. People do not have a reduced expectation of privacy in cars parked within their home s curtilage, where they are not subject to pervasive regulation that occurs on public roads. Rather, there is a heightened expectation of privacy because the curtilage is an area so intimately tied to the home itself. United States v. Dunn, 480 U.S. 294, 301 (1987). Because the 8

16 two rationales that justify an exception to the warrant requirement do not apply with same force for vehicles that are parked within the curtilage of a home, the Court should hold that the automobile exception does not apply to such vehicles. The warrant requirement is not a mere procedural inconvenience that undermines efficient police work and public safety. Rather, it is an important safeguard that checks the wellintentioned but mistakenly over-zealous executive officers and protects the reasonable expectation of the society at large to be free from unreasonable police interference in the privacy of the home. Coolidge, 403 U.S. at 481. B. Wigmore s car was parked on the curtilage of his home. Wigmore s car was located on the curtilage of his home, and, therefore, was within the protective ambit of the [F]ourth [A]mendment. Dunn, 480 U.S. at 299. Four factors are considered in determining whether an area falls within the curtilage of the home: (1) its proximity to the home; (2) whether it is within an enclosure that surrounds the home; (3) the nature of its use; and (4) steps taken by the resident to protect it from public view. Id. at 301. Dunn s curtilage analysis is a specific application of the general Fourth Amendment inquiry of whether the defendant had a reasonable expectation of privacy in the area in question at the time of the search. Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring). See Tri State Steel Constr., Inc. v. Occupational Safety & Health Review Comm'n, 26 F.3d 173, 178 (D.C. Cir. 1994) (Williams, J., concurring in judgment) (explaining Dunn as a special case of the more general doctrine that a reasonable expectation of privacy is necessary for a successful 4th Amendment claim. ). Because all four factors weigh in favor of considering the garage containing Wigmore s car to be in the curtilage of his home, the Court should hold that the NW s warrantless search of that garage violated the Fourth Amendment. 9

17 1. The garage was in close proximity to Wigmore s home. The proximity factor weighs in favor of Wigmore. Physical distance between the area claimed to be curtilage and the home is not the only factor considered in Dunn s proximity analysis. United States v. Depew, 8 F.3d 1424, 1427 (9th Cir. 1993) ( There is not... any fixed distance at which curtilage ends. ), overruled on other grounds in United States v. Johnson, 256 F.3d 895 (9th Cir. 1993). That distance must be considered within the context of the property because the area in which one reasonably expects privacy extends further in a rural setting. See United States v. Reilly, 76 F.3d 1271, 1277 (2d Cir. 1996) ( On a large parcel of land, a pond 300 feet away from a dwelling may be as intimately connected to the residence as is the backyard grill of the bloke next door. ). The record states that Wigmore s garage was located approximately 120 feet away from the main house. Wigmore, , at *31. Although 120 feet is a significant distance in urban settings, expectations of privacy extend farther in rural settings because they are less populated and neighboring properties are farther away. See, e.g., Reilly, 76 F.3d at 1277 (finding that a cottage and a wooden area, about 375 feet and 125 feet apart from the main residence, respectively, are both within its curtilage); United States v. Biles, 100 F. App x 484, 493 (6th Cir. 2004) (holding that shop 150 feet away from a defendant s residence is within its curtilage). Given Winterfell s rural location, Wigmore s garage is in close proximity to his house. 2. Winterfell s solid wooden fence clearly demarcates the extent of the curtilage. The enclosure factor also aids Wigmore. The focus of this inquiry is whether the enclosure clearly demarcates the area that is part and parcel of the house. Dunn, 480 U.S. at 295. A perfect barrier that prevents anyone that seeks to enter is not required. See Daughenbaugh v. City of Tiffin, 150 F.3d 594, 599 (6th Cir. 1998) (finding that the second Dunn factor weighed 10

18 in Daughenbaugh s favor because although the natural boundaries did not completely block his backyard from public view, they clearly demarcated the area that is part and parcel of the house. ). Winterfell is enclosed by a solid wooden fence that clearly marks where Wigmore s curtilage begins. Wigmore, No , at *15. The dissent argues that the invisible fence separating the main house from the rest of the grounds is like the interior fence in Dunn, which was held to have precluded a barn outside its perimeter from being curtilage. Id. at *24. However, the two fences are inherently different. The internal fence that divides Winterfell is an invisible fence, merely keeping pets contained without a physical barrier. Though there are signs showing where the invisible fence lies, Id. at *4, a dotted line of signs is distinct from a barbed wire fence. It is not a clear demarcation alerting anyone near the premises that it encompasses an area that is part and parcel of the house. Dunn, 480 U.S. at 295. A barbed wire fence, on the other hand, clearly shows where privacy begins, as those on the other side are physically obstructed from approaching further. Moreover, the two fences serve different purposes. An invisible fence is set up to keep pets within while a barbed wire fence keeps the unwelcome out. 3. The garage is used for intimate activities. Dunn s use factor also weighs in favor of Wigmore. A wall divides the garage into two sections, one for storing cars and gardening equipment and the other for showering and changing. Wigmore, No , at *4. As the majority below recognizes, the worn path between the tennis court and the door to the changing room suggests that these intimate uses were frequent. Id. at *14. Showering and changing are some of the most intimate activities that occur in the home, so the garage should be considered under the home s umbrella of Fourth Amendment protection. Dunn, 480 U.S. at

19 The dissent is mistaken to find the storage section of the garage to signify that the building is not used for intimate purposes. Wigmore, No , at *25. An outbuilding s occasional intimate use does not render it outside the curtilage. See Reilly, 76 F.3d at 1278 (stating that there is no iron-clad rule that occasional intimate use of property [is] insufficient to satisfy the use factor. ). The fact the garage was not exclusively used for intimate activities should not hinder this Court from finding that the use factor weighs in Wigmore s favor. Different parts of the home serve different functions, some of which are more intimate than others. Some may even choose to set up home offices ; however, the fact that one chooses to work out of one s home does not render the home a non-intimate place. Likewise, an area used for intimate activities should be given the protection that it is due, notwithstanding the other uses to which it is put. 4. Wigmore took substantial steps to protect Winterfell from public view. The fact that Wigmore made efforts to prevent observation of his whole property suggests that the garage, which lies within, is part of the curtilage. Making obvious efforts... to exclude the public from an area that surrounds her home entitles one to privacy in the protected area. Dunn, 480 U.S. at 319. The grounds of Winterfell are enclosed by a six-foot wooden fence that obstructs view from the outside. Wigmore, No , at *3. Moreover, Wigmore posted large signs around the wooden fence that say, BEWARE OF DOGS: KEEP OUT, alerting people to stay off the property. Id. at *15. Winterfell also sits far back from public roads. Id. The fact that Winterfell s gate was open does not negate the other efforts Wigmore made to exclude trespassers. Id. at *4. This case is distinguishable from others where courts have found an open gate to indicate the owner s reduced privacy interest in the area. See, e.g., United States v. Thomas, 120 F.3d 564, 571 (5th Cir. 1997) (defendants did not have a reasonable expectation 12

20 of privacy when there was no doorbell or knocker by their gate because they failed to put visitors on notice that the gate was an entry to a place that permission had to be given to enter. ). Wigmore, unlike the defendants in Thomas, took steps to notify people, through the signs posted on the wooden fence, that they must have a license to enter. In addition, this Court should not conclude that Wigmore abandoned all curtilage protection by permitting postal workers to enter to drop off mail and visitors to walk in to use the intercom. Privacy is not a discrete commodity, possessed absolutely or not all, Smith v. Maryland, 442 U.S. 735, 749 (1979) (Marshall, J., dissenting), and Dunn s requirement that a resident make efforts to avoid observation by people passing by... surely does not require efforts to insure total insulation at all times. United States v. Diehl, 276 F.3d 32, 39 (1st Cir. 2002) (internal citations and quotation marks omitted). This allowance did not authorize the NW to search his car. While the NW agents may have had an implicit license to knock and talk, they exceeded the scope this license when they interfered with the car on Wigmore s property. Because all the Dunn factors weigh in favor of Wigmore, this Court should hold that his car was within the curtilage and that the NW conducted an unreasonable search in violation of the Fourth Amendment. II. THE TWELFTH CIRCUIT CORRECTLY HELD THAT WIGMORE WAS DENIED HIS SIXTH AMENDMENT RIGHTS WHEN HE WAS CONFRONTED BY ROTH WITHOUT COUNSEL BECAUSE THAT ENCOUNTER WAS A CRITICAL STAGE OF THE PROSECUTION TO WHICH THE RIGHT TO COUNSEL HAD ATTACHED. The Twelfth Circuit was correct in holding that Wigmore s right to counsel was violated because Roth s visit to Wigmore s house to conduct plea negotiations without defense counsel present was a critical stage of the prosecution at which the presence of defense counsel is constitutionally required. Precedent does not endorse a bright-line rule precluding attachment of the right to counsel before indictment and instead requires that the right attaches whenever the 13

21 government enters into an adversarial relationship with the defendant. Wigmore s Sixth Amendment right to counsel attached when he was confronted by Roth at Winterfell because at that point the government had committed itself to prosecuting him, and the confrontation was a critical stage because it carried the potential for prejudice that could have been mitigated by the assistance of defense counsel. Therefore, this Court should affirm the Twelfth Circuit s decision and vacate Wigmore s conviction. A. A bright-line rule precluding the right to counsel from attaching prior to indictment is inconsistent with precedent and the objectives of the Sixth Amendment. The Twelfth Circuit properly held that the right to counsel may attach before an indictment is issued because a bright-line rule that the right never attaches prior to indictment does not follow from precedent and is inconsistent with the objectives of the Sixth Amendment. The Sixth Amendment guarantees that [i]n all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for his [defense]. U.S. Const. amend. VI. This right applies at all stages of trial, Johnson v. Zerbst, 304 U.S. 458, 468 (1938), and at certain critical stages before trial once the right has attached. Rothgery v. Gillespie Cty., 554 U.S. 191, 212 (2008). See, e.g., Missouri v. Frye, 566 U.S. 134, 143 (2012) (applying the critical stage doctrine to plea negotiations). Attachment depends on whether an adversarial relationship between the government and defendant is established, which may occur regardless of whether formal charges have been filed. See Roberts v. Maine, 48 F.3d 1287, 1291 (1st Cir. 1995). Accordingly, the Court should not create a new legal rule precluding attachment before indictment. While the dissent below suggests the Twelfth Circuit was bound to follow a bright-line rule, Wigmore, No , at *27 (Brandon, J., dissenting), this Court s precedents do not command it. In Kirby v. Illinois, the right to counsel was held not to attach at a pre-indictment lineup where the indictment was issued six weeks later. 406 U.S. 682, (1972). However, 14

22 there was no majority for the proposition that attachment depends on the filing of formal charges. Id. at 683. Justice Powell s concurrence, providing the plurality with a fifth vote for its holding, merely stated that he would not extend the Wade-Gilbert per se exclusionary rule, thus rendering dicta any language regarding a bright-line rule in the plurality opinion. See id. at 691 (Powell, J., concurring in judgment). In subsequent cases, this Court has used the issuance of formal charges as one factor in determining attachment but not the sole factor. See United States v. Gouveia, 467 U.S. 180, 196 n.3 (1984) (Stevens, J., concurring) (noting that a bright-line rule has never been endorsed by a majority of the Court); Moore v. Illinois, 434 U.S. 220, 231 (1977) (holding that the right to counsel attached prior to indictment after a criminal complaint had been filed since a criminal complaint began adversary judicial criminal proceedings under Illinois state law, but not stating that this circumstance was dispositive). See also United States v. Burgess, No , 1998 WL , at *1 (4th Cir. Mar. 30, 1998) (finding that Kirby did not preclude its holding that the right to counsel attached at a pre-indictment lineup). As Chief Judge Sansa correctly stated, the holdings in Kirby and Gouveia are not a broad, categorical denial of Sixth Amendment protection before indictment but limited to their facts. Wigmore v. United States, No , at *18. The Court should not create a new rule that the Sixth Amendment right to counsel may never attach prior to indictment because such a formalistic approach undercuts the Sixth Amendment s objective of achieving fair trials by ensuring representation to lay defendants matched against a complex legal system and expert adversary in the public prosecutor. In cases extending the right to counsel, this Court does not rely on formalistic rules but looks to the realities of the criminal justice system as they exist at the time. See, e.g., Frye, 566 U.S. at

23 (extending the right to plea negotiations, noting that 97 percent of federal convictions are the result of guilty pleas). If a prosecutor engages in such adversarial activities as leveraging evidence against an individual to elicit cooperation, whether an indictment has been issued is a mere formality. United States v. Turner, 206 F.3d 609, 615 (6th Cir. 2000). See also id. (it would exalt form over substance to make the right to counsel... depend on whether at the time of the interrogation, the authorities had secured a formal indictment. ) (quoting Escobedo v. Illinois, 378 U.S. 478, 486 (1964)). In the context of plea negotiations, assistance of counsel is even more crucial pre-indictment because at that stage the defendant may also negotiate over charging decisions. See United States v. Moody, 206 F.3d 609, 617 (6th Cir. 2000) (Wiseman, J., concurring). It is inconsistent with pragmatic objectives of the Sixth Amendment to allow a prosecutor to circumvent its protections simply by delaying filing an indictment, as the brightline rule would allow. See Bruce v Duckworth, 659 F.2d 776, 783 (7th Cir. 1981). Even as a matter of clarifying when exactly an adversarial relationship has been established, indictment is an arbitrary point at which to draw the line. A prosecutor can always dismiss an indictment later, thereby liquefying the previously solid adverse party relationship. Steven J. Mulroy, The Bright Line s Dark Side: Pre-Charge Attachment of the Sixth Amendment Right to Counsel, 92 Wash. L. Rev. 213, 240 (2017). Indictment does not signal the government s commitment to prosecute meaningfully more than a prosecutor personally confronting a defendant prior to filing formal charges does. It is more consistent with the values of the Sixth Amendment to hold that the right to counsel attaches whenever the government crosse[s] the constitutionally-significant divide from fact-finder to adversary, regardless of whether that occurs through formal proceedings. United States ex rel. Hall v. Lane, 804 F.2d 79, 16

24 82 (7th Cir. 1986). Thus, the Court should not create a new rule that the Sixth Amendment right to counsel may never attach prior to an indictment being issued. B. Wigmore s right to counsel was violated when Roth and the NW confronted him at Winterfell and engaged him in plea negotiations without defense counsel present. The right to counsel applies at all critical stages of a prosecution after it attaches. Rothgery, 544 U.S. at 212. Because the right to counsel had attached when the government engaged him in plea negotiations and those negotiations were a critical stage of the prosecution, Wigmore s Sixth Amendment rights were violated. 1. The Sixth Amendment right to counsel had attached by the time Roth and the NW confronted Wigmore at Winterfell. Wigmore s right to counsel had attached by the time the government engaged him in plea negotiations because by that point an adversarial relationship between them had been established. The right to counsel attaches once the government has committed itself to prosecute and the adverse positions of government and defendant have solidified. Kirby, 406 U.S. at 689; United States v. Larkin, 978 F.2d 964, 969 (7th Cir. 1992) (the right to counsel attaches before indictment if the government crosses the constitutionally significant divide from fact-finder to adversary. ). See United States v. Busse, 814 F. Supp. 760, 763 (E.D. Wis. 1993) (holding in finding for the defendant on an ineffective assistance of counsel claim that the right to counsel had attached where an AUSA was actively engaged in pre-charge negotiations with the defendant and his attorney). The adversarial relationship between Wigmore and the government was established by the time they began engaging in plea negotiations. Before the agents even arrived at Winterfell, they had resolved to take action against the Red Phoenix. Wigmore, No , at *5. They had already found significant evidence with which to charge members of the organization, Id. at 17

25 *3, and had long suspected Wigmore of involvement in it. Id. In fact, as soon as Rodritzker mentioned Wigmore in connection with Suave, the NW called a prosecutor and travelled to Winterfell to confront Wigmore. Id. There, they threatened him with prosecution, telling him he was going down unless he cooperated with them and even pressured him out of taking a call from his attorney. Id. at *5. Like in Busse, where an adversarial relationship was established because the prosecutor had amassed significant evidence to prosecute the defendant and then used that evidence as leverage in plea negotiations, an adversarial relationship between Wigmore and the government when he was personally confronted by a prosecutor and the NW because Roth used the information from Rodritzker as leverage to engage in plea negotiations with Wigmore and pressure him into cooperating. 814 F. Supp. at ; Wigmore, No , at *5 6. See also Chrisco v. Shafran, 507 F. Supp. 1312, (D. Del. 1981) (suggesting the government s willingness to engage in plea negotiations proves the government had committed to prosecution). Therefore, Wigmore s right to counsel had attached by the time Roth and the NW began engaging him in plea negotiations. 2. The confrontation between Wigmore and the government was a critical stage. The plea negotiation between Wigmore and Roth was a critical stage of the prosecution because that confrontation involved complex legal issues and carried the potential for substantial prejudice that could have been mitigated by defense counsel. Critical stages include any triallike confrontations with a prosecutor at which the expertise of counsel is necessary to address legal issues and counter the adversarial function of the prosecutor. Rothgery, 554 U.S. at 212 n.16 (quoting United States v. Ash, 413 U.S. 300, (1973)). This Court has held plea negotiations to be critical stages because they are so central to the administration of the criminal 18

26 justice system and often play such a crucial role in determining guilt that they require the presence of counsel to avoid undermining the Sixth Amendment s guarantee of a fair trial. Frye, 566 U.S. at See United States v. Wilson, 719 F. Supp. 2d 1260, 1267 (D. Or. 2010) (finding that a pre-indictment plea negotiation was a critical stage because the possibility of the defendant s right to trial being sacrificed made it the functional equivalent of an initiation of formal proceedings). The government s attempts to elicit incriminating statements caused Wigmore to be confronted with issues of legal complexity that put him at a significant information disadvantage. As the majority below accurately noted, when Roth and the agents approached Wigmore at his home, they leveraged the fact Rodritzker had informed on him to prompt an on-the-spot decision involving intricacies of law. Wigmore, No , at *19. Despite knowing that Wigmore had retained Paul as his attorney and Paul being absent, the agents negotiated an immunity agreement. Id. at *6. Just as the pre-indictment plea negotiation in Wilson was held to be a critical stage because it involved a personal confrontation with a prosecutor who threatened the defendant with the prospect of prison time to pressure him into making statements, the confrontation between Wigmore and the government should be held a critical stage because Roth and the NW similarly used the prospect of a loss at trial to get Wigmore to make a decision he did not have the legal expertise to make without counsel. 719 F. Supp. at 1267 ( This was not a casual conversation, but a formal negotiation. ); Wigmore, No , at *5 6. See also Pamela R. Metzger, Beyond the Bright Line: A Contemporary Right-to-Counsel Doctrine, 97 Nw. U. L. Rev. 1635, 1666 (2003) (noting that defense counsel can mitigate the potential prejudice in these negotiations by arguing for lesser charges or making proffer agreements that limit the 19

27 government s use of the defendant s statements). While the dissent below argues that Wigmore was a smart businessman who made a rational choice to cooperate with law enforcement, Wigmore, No , at *29, it was impossible for him to have made a truly rational choice without knowledge regarding the potential consequences he faced, which he likely would have had access to had defense counsel been present. Therefore, this uncounseled plea negotiation was a critical stage of the prosecution. Because the confrontation between Wigmore and the government was a critical stage at which the right to counsel had attached and counsel was not present, the Court should hold that the government s actions violated the Sixth Amendment. 20

28 CONCLUSION For the foregoing reasons, Respondent respectfully requests that the Court affirm the Twelfth Circuit s decision vacating Respondent s conviction and remanding to the Northwestern District of Rubloff with an order to suppress the illegally obtained evidence. 21