Docket No IN THE UNITED STATES SUPREME COURT. KENNY BEARSON, Petitioner, CHAOSTOWN POLICE DEPARTMENT, Respondent.

32 Docket No. 01-1776 IN THE UNITED STATES SUPREME COURT KENNY BEARSON, Petitioner, v. CHAOSTOWN POLICE DEPARTMENT, Respondent. ON WRIT OF CERTIORARI FROM THE UNITIED STATES COURT OF APPEALS FOR THE THIRTEENTH CIRCUIT BRIEF FOR THE PETITIONERS ORAL ARGUMENT REQUESTED TEAM 32 Attorneys for Petitioners February 27, 2015

QUESTIONS PRESENTED I. Did Chaostown police officers exceed the bounds of the Fourth Amendment when, during Mr. Bearson s absence, they entered his home under the consent of his younger sister in connection with her marijuana possession, continued searching after finding marijuana in the living room, and then seized a pawn shop receipt from the kitchen? II. Did the trial court deny Mr. Bearson his constitutional right to present a complete defense in ruling that Leopold Lara Jr. s confession was inadmissible and that the result of the proceedings would not have been different had it been admitted? i

TABLE OF CONTENTS Page QUESTIONS PRESENTED...................................................... i TABLE OF CONTENTS........................................................ ii TABLE OF AUTHORITIES.................................................... iv STATEMENT OF JURISDICTION............................................... 1 CONSTITUTIONAL PROVISIONS............................................... 1 STATEMENT OF THE CASE................................................... 2 I. Material Facts.................................................... 2 A. Chaostown Police Officers Warrantless Search of Mr. Bearson s House............................................ 2 B. Leopold Lara Jr. s Confession to the Double Homicide.............. 3 II. Proceedings Below................................................. 3 SUMMARY OF THE ARGUMENT.............................................. 4 I. The Thirteenth Circuit Erred in Denying Mr. Bearson s Motion to Suppress the Pawn Shop Receipt...................................... 4 II. The Thirteenth Circuit Erred in Denying Mr. Lara s Confession............. 4 ARGUMENT................................................................ 5 I. Chaostown Police Violated Mr. Bearson s Fourth Amendment Rights.......................................................... 5 A. The Search of Mr. Bearson s Kitchen Was Unconstitutional because the State Failed to Establish his Sister s Authority to Grant Consent............................. 6 B. The Search and Seizure of the Pawn Shop Receipt Was Unconstitutional............................................. 8 ii

1. Chaostown Police Exceeded the Bounds of Reasonableness by Searching and Seizing the Pawn Shop Receipt in Connection with a Search for Marijuana........... 8 2. The Plain View Exception Does Not Apply to the Search or Seizure of the Pawn Shop Receipt Because its Incriminating Character Could Not Have Been Immediately Apparent................................. 11 II. The Thirteenth Circuit Erred in Denying Mr. Lara s Confession............ 13 A. Mr. Lara s Confession Meets the Statement Against Interest Hearsay Exception.......................................... 14 1. Mr. Lara is an Unavailable Witness....................... 15 2. Mr. Lara s Confession was against his Penal Interest......... 15 3. Corroborating Circumstances Indicate the Trustworthiness of Mr. Lara s Confession............................... 16 a. Independent Evidence Corroborates Mr. Lara s Confession............................. 17 b. The General Circumstances Corroborate Mr. Lara s Confession............................ 18 c. The Trustworthiness of Deputy Finster is Irrelevant..... 19 B. Mr. Lara s Confession Probably Would have Affected the Outcome of the Trial......................................... 20 CONCLUSION............................................................... 22 iii

TABLE OF AUTHORITIES UNITED STATES SUPREME COURT CASES PAGE Arizona v. Gant, 556 U.S. 332 (2009)........................................... 9-10 Arizona v. Hicks, 480 U.S. 321 (1987)............................................. 11 Chambers v. Mississippi, 410 U.S. 284 (1973)................................ 13-14, 19 Coolidge v. New Hampshire, 403 U.S. 443 (1971)................................. 11-12 Crane v. Kentucky, 476 U.S. 683 (1986)........................................... 13 Florida v. Jimeno, 500 U.S. 248 (1991).......................................... 8-10 Georgia v. Randolph, 547 U.S. 103 (2006).......................................... 6 Horton v. California, 496 U.S. 128 (1990)......................................... 11 Illinois v. Rodriguez, 497 U.S. 177 (1990)........................................ 6-8 Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (1991)........................... 14 Payton v. New York, 445 U.S. 573 (1980).......................................... 5 Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364 (2009)........................ 9 Schneckloth v. Bustamonte, 412 U.S. 218 (1973)...................................... 6 Webb v. Texas, 409 U.S. 95 (1972)............................................... 13 Williamson v. United States, 512 U.S. 594 (1994).............................. 14-15, 19 UNITED STATES COURTS OF APPEALS CASES United States v. Ayoub, 498 F.3d 532 (6th Cir. 2007).................................. 7 United States v. Butler, 71 F.3d 243 (7th Cir.1995).................................. 17 United States v. Cos, 498 F.3d 1115 (10th Cir. 2007)................................ 7-8 United States v. Dichiarinte, 445 F.2d 126 (7th Cir. 1971)............................. 10 iv

United States v. Garcia, 986 F.2d 1135 (7th Cir. 1993)................................ 16 United States v. Hall, 854 F.2d 1269 (11th Cir. 1988)................................ 20 United States v. Henderson, 736 F.3d 1128 (7th Cir. 2013).......................... 16-19 United States v. Hill, 737 F.3d 683 (10th Cir. 2013).................................. 20 United States v. Hudspeth, 18 F.3d 954 (8th Cir. 2008)................................ 7 United States v. Lozado, No. 14-1094, 2015 WL 304680 (10th Cir. Jan. 20, 2015)....... 18-19 United States v. Murphy, 516 F.3d 1117 (9th Cir. 2008)................................ 7 United States v. Price, 134 F.3d 340 (6th Cir.1998).................................. 18 United States v. Reid, 226 F.3d 1020 (9th Cir. 2000).................................. 7 United States v. Silverstein, 732 F.2d 1338 (7th Cir.1984)............................. 18 United States v. Wade, No. 13-3520-CR, 2014 WL 5858634 (2d Cir. Nov. 13, 2014)........ 20 UNITED STATES CONSTITUTIONAL PROVISIONS U.S. Const. amend. IV.......................................................... 1 U.S. Const. amend. VI.......................................................... 1 U.S. Const. amend. XIV........................................................ 1 UNITED STATES STATUTORY PROVISIONS 28 U.S.C. 1254(1)............................................................ 1 Fed. R. Crim. P. 33........................................................... 13 Fed. R. Evid. 804.......................................................... 13-21 OTHER AUTHORITIES 2 K. Broun, McCormick on Evidence 319 (6th ed. 2006).......................... 19-20 Fed. R. Evid. 804 Advisory Committee's Note (2010)........................... 14-15, 20 Michael H. Graham, 7 Handbook of Federal Evidence 804:3 (7th ed. 2012).............. 17 v

STATEMENT OF JURISDICTION Petitioner Kenny Bearson was charged in federal court with two counts of first-degree murder. 1 App. 7. After final judgment, Mr. Bearson timely appealed to the U.S. Court of Appeals for the Thirteenth Circuit. App. 7. Pending the circuit court s decision, Mr. Bearson learned of exculpatory evidence that Chaostown Police had withheld during trial, and he timely filed a motion for a new trial. App. 9. The trial court denied the motion for a new trial, and Mr. Bearson timely appealed that decision. App. 9. The Thirteenth Circuit consolidated both appeals and affirmed both Mr. Bearson s conviction and the trial court s denial of the motion for a new trial. App. 9-10. This Court has jurisdiction pursuant to 28 U.S.C. 1254(1). CONSTIUTIONAL PROVISIONS The Fourth Amendment to the United States Constitution provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. The Sixth Amendment to the United States Constitution provides in pertinent part: In all criminal prosecutions, the accused shall enjoy the right... to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. The Fourth and Sixth Amendments are applied to the States by the Fourteenth Amendment, which provides in pertinent part: Section 1.... No State shall... deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. 1 This problem presumes federal court jurisdiction. App. 7 n.1. 1

STATEMENT OF THE CASE I. Material Facts A. Chaostown Police Officer s Warrantless Search of Mr. Bearson s House Investigating a double murder that had taken place in Chaostown on January 1, 2010, police approached Kenny Bearson s residence and noticed that the front door was open, the screen door was closed, and the odor of burned marijuana emanated from the residence. App. 4. The officers called out to see if anyone was home, and Mr. Bearson s younger sister, Caroline Bearson, came to the door. App. 5. She informed the officers that her older brother was not home, and she denied their request to enter the residence. App. 5. On further questioning, Ms. Bearson told the officers that she was convalescing at her brother s house and smoking prescription marijuana because she had recently completed a session of chemotherapy treatment. App. 5. She explained that her brother s house was three hours closer to the hospital than her own. App. 5. After Ms. Bearson admitted that she did not have proof of her prescription with her, the officers told her they would seek to obtain a search warrant. App. 5. Hearing this, Ms. Bearson told the officers they could come inside, but that they had to stay out of her brother s bedroom and bathroom. App. 5. Officers observed marijuana on the coffee table immediately upon entering the living room. App. 5. After finding the marijuana, officers continued searching the house. App. 5. Detective Binger walked into the kitchen and, reading a pawn shop receipt he noticed on the kitchen table, saw that Mr. Bearson had recently pawned several rifles, some of which had been capable of shooting.30 caliber bullets, the same caliber that had been found at the scene of the double homicide. App. 5. Although not explicit in the record, officers presumably immediately seized the receipt because it was entered as evidence against Mr. Bearson at trial. App. 7. 2

B. Leopold Lara, Jr. s Confession to the Double Homicide After Mr. Bearson s conviction and timely appeal, his attorney learned that a recently deceased Chaostown resident, Leopold Lara Jr., had months earlier confessed to the double homicide. App. 7-9. Mr. Lara, known to the community for occasionally bartering in drugs and guns, had made this confession to his niece, Chaostown Police Deputy Laura Finster, after leading her on a high-speed car chase when she tried to stop him for speeding. App. 7-8. Mr. Lara eventually pulled over, got out, and fled. App. 8. Deputy Finster followed on foot and caught him. App. 8. Apparently intoxicated, Mr. Lara began crying and then blurted out that he was sorry he [had] killed those kids, that he [had] not mean[t] to shoot the girl, and that he [had] used a.30 caliber rifle. App. 8. Deputy Finster told Mr. Lara to keep quiet. App. 8. Deputy Finster neither recorded Mr. Lara s statement, nor reported the incident, nor took him to jail. App. 8. Instead, she gave him a ride home and a speeding ticket. App. 8. Learning of the confession, Detective Binger visited Mr. Lara in the hospital where he was awaiting a liver transplant. App. 8. Mr. Lara denied having confessed to the killings and claimed instead that he had said why don t you take me to jail for killing those kids or something similar. App. 8. Mr. Bearson s lawyer was not informed of these events until after Mr. Lara s death. App. 7-8. II. Proceedings Below The trial court denied without explanation Mr. Bearson s pre-trial motion to suppress the pawn shop receipt. App. 7. At trial, the only evidence presented against Mr. Bearson was the pawn shop receipt and the testimony of two purported witnesses who came forward after 3

learning of a monetary reward being offered to help solve the crime. App. 3-4, 6-7. Mr. Bearson was convicted after a three-day trial. App. 7. Mr. Bearson appealed his conviction. App. 7. After learning of the withheld, exculpatory confession of Mr. Lara, Mr. Bearson filed a motion for a new trial. App. 8. Upon the trial court s denial of that motion, Mr. Bearson appealed to the Thirteenth Circuit, which consolidated both appeals. App. 7, 9. In a brief, unpublished opinion, the circuit court affirmed both the conviction and the denial of Mr. Bearson s motion for a new trial. App. 9. SUMMARY OF THE ARGUMENT I. The Thirteenth Circuit Erred in Denying Mr. Bearson s Motion to Suppress the Pawn Shop Receipt Because police illegally seized the pawn shop receipt that was used as evidence against him at trial, and because its admission severely prejudiced his trial, Mr. Bearson s conviction should be vacated. Chaostown Police exceeded the bounds of reasonableness as required under the Fourth and Fourteenth Amendment for three reasons. First, they relied on the consent of an admitted visitor, and failed to establish that Mr. Bearson s sister had authority to consent to the search. Second, they persisted searching Mr. Bearson s home even after they had discovered the purported object of their warrantless consent search. Third, they discovered the receipt by reading it, an act of searching that could not possibly have produced evidence either of marijuana possession or of Ms. Bearson s prescription. For the same reasons, the plain view doctrine fails to protect Chaostown Police s warrantless search and seizure of the pawn shop receipt. II. The Thirteenth Circuit Erred in Denying Mr. Lara s Confession The Thirteenth Circuit Erred in upholding the Trial Court s ruling that Mr. Lara s confession was inadmissible hearsay. His confession falls in line with the well-established 4

hearsay exception for statements made against an unavailable witness s penal interest. Mr. Lara is now deceased and therefore unavailable, and his confession was made against his penal interest in that it directly implicated him in the two murders. Furthermore, Mr. Lara s unusual amount of knowledge regarding the murders and his general propensity for working with marijuana and rifles corroborate the trustworthiness of his statements. This self-implicating testimony would likely have exculpated Mr. Bearson had it been know before trial. Accordingly, it is Mr. Bearson s Constitutional right to present this evidence as part of his full defense. ARGUMENT I. Chaostown Police Violated Mr. Bearson s Fourth Amendment Rights and Prejudiced his Trial Mr. Bearson s conviction should be vacated because police illegally seized the pawn shop receipt used as evidence against him at trial, and because its admission severely prejudiced his trial. As incorporated by the Fourteenth Amendment, the Fourth Amendment prohibits states from violating a person s right to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. U.S. Const. amend. IV. It is plain from the text that physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed. Payton v. New York, 445 U.S. 573, 585-86 (1980) (quoting United States v. U.S. Dist. Ct. E.D. Mich., 407 U.S. 297, 313 (1972)). In this case, Chaostown Police seized a pawn shop receipt that they discovered after entering Mr. Bearson s house to conduct a warrantless search for unspecified evidence in circumstances suggesting that they had intended to search for marijuana. The Fourth Amendment thus clearly applies in this case, and, for the reasons that follow, its tenets were violated. 5

A. The Search of Mr. Bearson s Kitchen Was Unconstitutional Because the State Failed to Establish Ms. Bearson s Authority to Consent to the search Chaostown Police exceeded the bounds of reasonableness as required under the Fourth and Fourteenth Amendment, first, by relying on the consent of an admitted visitor and, second, by persisting to search Mr. Bearson s home after discovering the purported object of their warrantless consent search. It is well settled under the Fourth and Fourteenth Amendments that a search conducted without a warrant issued upon probable cause is per se unreasonable... subject only to a few specifically established and well-delineated exceptions. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) (citing Katz v. United States, 389 U.S. 347, 357 (1967)). Although consent is one such exception, valid consent must be obtained from a person with authority over the premises. Further, the scope of the ensuing search must be limited to places and containers that could possibly contain the objective of the search. Although consent is a permitted exception to the warrant requirement, id., valid consent must come from a person who has common authority over the premises. Illinois v. Rodriguez, 497 U.S. 177, 181 (1990). Furthermore, [t]he burden of establishing that common authority rests upon the State, which must prove that officers reasonably believed the consenting person had the requisite authority. Id. Most cases dealing with consent searches conducted in the absence of an occupant have turned on the consent of co-occupants, not guests. See, e.g., Georgia v. Randolph, 547 U.S. 103, 109 (2006) (noting that the individual possessing authority to consent might be the householder against whom evidence is sought, or a fellow occupant who shares common authority over property ). This Court has established that former co-occupants who hold keys without the current occupant s knowledge may not give valid consent. Rodriguez, 497 U.S. at 181-82. Various circuit courts have further established that visitors and guests may not give valid consent absent 6

an affirmative showing that they had actual authority as guests to exercise control over the premises. See, e.g., United States v. Hudspeth, 18 F.3d 954, 957-58 (8th Cir. 2008) (quoting Rodriguez, 497 U.S. at 180) (holding that an infrequent guest cannot give valid consent); United States v. Cos, 498 F.3d 1115, 1128-30 (10th Cir. 2007) (rejecting the government s argument that a third party had apparent authority to grant consent when she said the host had left her alone with children at the premises); United States v. Reid, 226 F.3d 1020, 1025 (9th Cir. 2000) (holding that a guest s mere presence on the premise in the absence of the primary occupant is insufficient to establish authority to consent); cf. United States v. Murphy, 516 F.3d 1117, 1123 (9th Cir. 2008), abrogated on other grounds by Fernandez v. California, 134 S. Ct. 1126 (2014), (holding that a guest can withhold consent when the guest is enjoying temporary residence in the property); United States v. Ayoub, 498 F.3d 532, CITE (6th Cir. 2007) (citing 5 Wayne R. LaFave, Search and Seizure, 8.6 (4th ed. 2004) (noting that a guest may have authority to consent to a warrantless search when she is explicitly placed in charge of the premises during homeowner s absence). In United States v. Cos, the Tenth Circuit rejected the government s argument that a third-party guest had apparent authority to consent to a search when she answered the door at three o clock in the afternoon with children present and the host tenant absent. 498 F.3d at 1128-30. The Tenth Circuit reasoned that, under Rodriguez, officers could not have reasonably believed that the third-party guest had authority to grant consent: Even if accompanied by young children, a third party s mere presence on the premises to be searched is not sufficient to establish that a man of reasonable caution would believe that she had mutual use of the property by virtue of joint access, or... control for most purposes over it. Instead, the government must offer some additional evidence to support a claim of apparent authority. 7

498 F.3d at 1129 (alteration in original) (citation omitted) (quoting a phrase that originated in United States v. Matlock, 415 U.S. 164, 171 n.7 (1974)). In this case, the State failed to carry its burden to establish that Ms. Bearson had common authority over the premises. When Chaostown Police officers entered Mr. Bearson s home, they had nothing more than Mr. Bearson s absence, his sister s presence, and her testimony that she sometimes convalesced at Mr. Bearson s house after her chemotherapy treatments. Importantly, Ms. Bearson did not say that she had taken temporary residence with her brother, or even that she was in the habit of staying over night. Instead, she said that she stayed with Mr. Bearson after her treatments for as long as it takes for her to recover. App. 5. Without more, this would not suggest to a man or woman of reasonable caution that Ms. Bearson was more than an infrequent, familial guest. The officers did not, by the record, inquire as to whether she had a key, whether she had authority to entertain guests, or whether she was entrusted with management of the premises. Accordingly, the State failed to establish that Ms. Bearson had authority to grant valid consent to a warrantless search of the home. B. The Search and Seizure of the Pawn Shop Receipt Was Unconstitutional 1. Chaostown Police Exceeded the Bounds of Reasonableness by Searching and Seizing the Pawn Shop Receipt in Connection with a Search for Marijuana The scope of a search is generally defined by its expressed object. Florida v. Jimeno, 500 U.S. 248, 251-52 (1991). Offices conducting a valid consent search, even absent any express limitations imposed by the suspect, must nevertheless limit themselves to searching only for that which the typical reasonable person [would] have understood by the [verbal] exchange to be the object of the search. Id. at 251 (citing Illinois v. Rodriguez, at 183-189; Florida v. Royer, 460 U.S. 491, 501-502 (1983) (opinion of White, J.); id., at 514 (Blackmun, J., dissenting)). Officers 8

must therefore limit a search s scope to the area[s] that [are] capable of concealing the object of the search. Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 388 (2009). If courts were to construe broadly the consent exception as allowing officers to search places where the search s object could not be, or to continue searching after the object had been found, then the consent exception would serve to provide a police entitlement to search for anything, and it is anathema to the Fourth Amendment to permit a warrantless search on that basis. Arizona v. Gant, 556 U.S. 332, 347 (2009). In this case, Mr. Bearson s sister, Caroline Bearson, consented to a search that was, by implication, limited to the object of marijuana and, by explicit limitation, confined to areas outside of Mr. Bearson s bedroom and bathroom. Initially, Detective Binger asked Caroline Bearson if he could come inside to look around, and she said no. Thus, Ms. Bearson denied the officer s request to conduct a general exploratory search. After the detective had questioned her about her possession of marijuana and the location of her proof of prescription, he said that he would leave to apply for a search warrant. On hearing this, Ms. Bearson said the officers could come in, but that they must stay out of her brother s bedroom and bathroom. The record in no way indicates that Caroline Bearson knew that her brother was a suspect in any criminal investigation, much less that the officers were investigating a double homicide. Given the conversation between Ms. Bearson and Detective Binger, the typical reasonable person [would] have understood... the [verbal] exchange to have defined marijuana as the object of the officer s intended search. In light of this implied objective, Chaostown Police exceeded the reasonable scope of the warrantless search by reading papers that could not possibly contain evidence of marijuana possession or of Ms. Bearson s prescription. A search is unreasonable when officers search areas 9

or containers that could not contain the object of the search. See Jimeno, 500 U.S. at 251-52 ( The scope of a search is generally defined by its expressed object. ). Instead, officers may reasonably search only those containers that might contain the object of their search. Id. This is true not only for consent searches, but also and for searches incident to arrest. See Gant, 556 U.S. at 334 (holding that police impermissibly searched a car s passenger compartment when police had no reason to believe that evidence of the offense for which [the car s driver had been] arrested might have been found therein ). Consequently, the Seventh Circuit has held that officers exceed the bounds of the Fourth Amendment when they gain consent to search for specific objects and subsequently use that consent as a license to conduct a general exploratory search. United States v. Dichiarinte, 445 F.2d 126, 129 (7th Cir. 1971). Because Detective Binger gained consent to search for marijuana, the Fourth Amendment required him to limit his search to that objective. A pawn shop receipt cannot contain marijuana, and no paper in the house could have contained evidence of Ms. Bearson s prescription because she admitted to not having it with her. Chaostown Police also exceeded the scope of the search by continuing to search after the evidence of marijuana had been found. If the scope of the permissible areas of a search is defined by its object, then the duration of the search should be identically defined. Once the object is found, the search should be terminated. Otherwise, officers may abuse the consent as a license to conduct a general exploratory search. Id. The officers should have terminated the search when they found the marijuana, before entering the kitchen where they found the pawn shop receipt. 10

2. The Plain View Exception Does Not Apply to the Search or Seizure of the Pawn Shop Receipt Because its Incriminating Character Would Not Have Been Immediately Apparent In order to support a plain-view seizure, the State must show that the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed. Horton v. California, 496 U.S. 128, 136 (1990). Under the plain view doctrine, in order for a police officer to conduct a warrantless search separate and apart from the lawful objective of his entry into a persons home, the officer must have probable cause to believe the search will produce evidence of a crime. Arizona v. Hicks, 480 U.S. 321, 324-35 (1987). The receipt was purportedly in plain view to Detective Binger, but only after he had entered into the kitchen. Because Detective Binger should not have been in the kitchen, see supra Part A.1., A.2., he should not have seized the pawn shop receipt, even though it was in plain view. Even if Detective Binger had been in the kitchen lawfully, the plain view exception still does not save his warrantless seizure of the pawn shop receipt because Detective Binger did not have probable cause to believe his reading of the receipt could have provided evidence of any crime. Plain-view seizures are extensions of a police officer s original justification for entry, and such extensions are justified only where it is immediately apparent to the police that they have evidence before them. Coolidge v. New Hampshire, 403 U.S. 443, 466 (1971). The evidence must therefore not only be in plain view, but its incriminating character must also be immediately apparent. Horton, 496 U.S. at 136. [T]he plain view doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges. 403 U.S. at 466. In Hicks, police responded to a reported shooting and entered an apartment to search for the shooter, for other victims, and for weapons. 480 U.S. at 323. After securing the premises 11

and seizing the evidence sought, police turned their attention to the apartment s high-end stereo equipment. Id. 323-34. The Court held that the plain view doctrine did not give an exception to the warrant requirement for evidence of the stereo s serial number, which was unrelated to the exigent circumstances of entry and which officers gained by moving furniture to read the stereo s back panel. Id. 327-29. In this case, Detective Binger entered Mr. Bearson s home under the consent of Mr. Bearson s younger sister and in the context of questioning her about her marijuana possession. Having thus established the lawful objective of his entry, Detective Binger was limited to searching for evidence related to marijuana possession. Because pawn shops do not usually sell marijuana, Detective Binger did not have probable cause to believe the receipt would have conveyed evidence of a marijuana purchase. Nevertheless, he read the receipt. Similar to the officers in Hicks, Detective Binger extended his search to objects unrelated to the reason for his initial entry. When he read the receipt, Detective Binger produce[d] a new invasion of [Mr. Bearson s] privacy unjustified by the... circumstance that validated the entry. Hicks, 480 U.S. at 325. Even if the pawn shop receipt had been lying face up and printed in such large letters that Officer Binger had inadvertently noticed the details of the receipt, he did not have probable cause to believe that the murder weapon had been among any of Mr. Bearson s pawned guns. The incriminating character of the receipt was not immediately apparent, or even subsequently apparent, as it never produced further incriminating evidence. Accordingly, the receipt was unlawfully seized and the Thirteenth Circuit erred by holding that the receipt was admissible. 12

II. The Thirteenth Circuit Erred in Denying Mr. Lara s Confession The trial court denied Kenny Bearson his constitutional right to present a complete defense against the charges against him when it ruled that Leopold Lara Jr. s confession was inadmissible and that the result of the proceedings would not have been different had it been admitted. Few rights are more fundamental than that of an accused to present witnesses in his own defense. See Webb v. Texas, 409 U.S. 95 (1972). The Sixth Amendment of the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense. Crane v. Kentucky, 476 U.S. 683, 690 (1986). In the exercise of this right, the accused must follow established rules of procedure. Mr. Bearson followed these rules after discovering the new evidence of Mr. Lara s confession by filing a timely request for a new trial pursuant to Rule 33(b)(1) of the Federal Rules of Criminal Procedure. This newly discovered confession plays a critical role in Mr. Bearson s defense. If the confession is true, then Mr. Bearson is innocent. To deny Mr. Bearson the opportunity to present this exculpating evidence is to deny him his constitutional right to defend himself. Although perhaps no rule of evidence is used as frequently in trial as the exclusion of hearsay, exceptions tailored to allow the introduction of evidence which in fact is likely to be trustworthy have long existed. The confession of Mr. Lara rejected by the Appellate Court bore persuasive assurances of trustworthiness and thus was well within the basic rationale of the exception for declarations against interest. Fed. R. Evid. 804(b)(3). That testimony is critical to Mr. Bearson s defense. If true, this confession proves Mr. Bearson s innocence, and would have thus played a critical role in the outcome of Mr. Bearson s trial. Under these circumstances the 13

hearsay rule [should] not be applied mechanistically to defeat the ends of justice. Chambers v. Mississippi, 410 U.S. 284, 302 (1973). A. Mr. Lara s Confession Meets the Statement Against Interest Hearsay Exception Mr. Lara s confession should not be barred as hearsay because it meets the hearsay exception for statements made against self-interest. The Federal Rules of Evidence provide that certain exceptions to hearsay apply when a declarant is made unavailable for certain reasons, including the inability to be present or testify at the trial or hearing because of death. Fed. R. Evid. 804(a)(4). One of these specific exceptions is for statements made against the declarant s own interest. Id. at (b)(3). This exception applies when a statement is made that meets two requirements: (1) the statement is contrary to the declarant's proprietary or pecuniary interest or had so great a tendency to expose the declarant to civil or criminal liability, and (2) the statement is supported by corroborating circumstances that clearly indicate its trustworthiness. Id. The Rule is founded on the commonsense notion that reasonable people, even those who are not especially honest, tend not to make self-inculpatory statements unless they believe them to be true. Williamson v. United States, 512 U.S. 594, 598 (1994). The hearsay rules exist because of the fear that out-of-court declarations might be misperceived, misremembered, misstated, or fabricated. The Federal Rules of Evidence recognize, however, that in the case of self-inculpating statements, these risks are less prevalent. Id. Because it is against self-interest to admit to criminal liability, it is all the more easy to credit when it happens. Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 512 (1991). These rulings by the Supreme Court fall perfectly in line with the drafters rationale for this exception, namely, that persons do not make statements which are damaging to themselves unless satisfied for good reason that they are true. 14

Advisory Committee's Notes on Fed. R. Evid. 804(b)(3). For the reasons that follow, Mr. Lara s confession meets both the elements for the exception and the reasoning behind the exception. 1. Mr. Lara is Unavailable as a Witness The parties have stipulated that Mr. Lara is unavailable pursuant to Fed. R. Evid. 804. Rule 804(a)(4), which lists death as an accepted reason for a witness s unavailability. Mr. Lara died one week after Detective Binger spoke with him in the hospital. Because Mr. Lara is unavailable the evidence of his confession can only be introduced by another party. 2. Mr. Lara s Confession was Against his Penal Interest When Mr. Lara confessed to having killed those kids he made a statement that was against his penal interest. The first prong of the hearsay exemption under Rule 804(b)(3) requires that a statement be made contrary to the declarant's proprietary or pecuniary interest or [have] so great a tendency to expose the declarant to civil or criminal liability. Mr. Lara s confession was contrary to his penal interest because it exposed him to criminal liability. The Supreme Court has explained that in applying the Rule, [t]he question is always whether the statement at issue was sufficiently against the declarant's penal interest under the Rule's language, and this question can only be answered in light of all the surrounding circumstances. Williamson, 512 U.S. at 595. In light of the current circumstances, it is evident that through making this statement Mr. Lara exposed himself to criminal liability and manifestly acted against his penal interest. Mr. Lara did not make a statement that required stretching or exaggerating in order to be construed in some way to be against his penal interest. His statement was nothing short of a plain confession to murder. He stated directly that he killed those kids. App. 8. And he did not stop there. He expounded upon this confession, specifying the weapon he used and explaining that he did not 15

mean to shoot the girl. App. 8. This unambiguous language cannot be mistaken for anything other than a confession to murder, exposing Mr. Lara to criminal liability, and thus working against his penal interest. The circumstances of the confession strengthen the degree to which this statement exposed Mr. Lara to criminal liability. This confession was not made to his friends that were in the truck with him, or to some co-conspirator, as is often the case with these sorts of confessions. See generally United States v. Henderson, 736 F.3d 1128 (7th Cir. 2013). Instead this confession was made unsolicited and unprovoked directly to a police deputy. Deputy Finster had given chase and subdued Mr. Lara for completely unrelated crimes, speeding and evasion. And yet, without prompting, Mr. Lara made this confession to an officer of the law. No statement could cut more against an individual s penal interest than to confess to murder directly to a policewoman. 3. Corroborating Circumstances Indicate the Trustworthiness of Mr. Lara s Confession The circumstances surrounding Mr. Lara s confession corroborate the truthfulness of his confession, satisfying the second prong of the exception under Rule 804(b)(3), which requires that the statement be supported by corroborating circumstances that clearly indicate its trustworthiness. Fed. R. Evid. 804(b)(3). Courts have held that Rule 804(b)(3) does not require that the statements themselves be clearly corroborated. United States v. Garcia, 986 F.2d 1135, 1141 (7th Cir. 1993). Instead, the rule requires only that the corroborating circumstances indicate the trustworthiness of the statement. Id. This corroboration requirement is used as a preliminary question in regards to the admissibility of evidence, and is not meant to require that a judge be completely convinced of the truth of the statement in order for the statement to be admissible. Id. The rule simply requires 16

that there [be] some evidence besides the testimony itself to indicate that the testimony is trustworthy not that it is necessarily true. Henderson, 736 F.3d at 1131. Corroboration may be supplied by a variety of different sources. Typically, however, one or both of two major avenues have been used to corroborate hearsay statements: (1) independent evidence supporting the statement itself; or (2) circumstances generally suggesting that the statement is trustworthy. See Michael H. Graham, 7 Handbook of Federal Evidence 804:3 (7th ed.2012); see, e.g., United States v. Butler, 71 F.3d 243, 253 (7th Cir. 1995). a. Independent Evidence Corroborates the Substance of Mr. Lara s Confession Independent evidence corroborates the confession made by Mr. Lara. The most startlingly clear evidence in support of Mr. Lara s confession is the caliber of rifle used in the murders of Billy Smith and Sally Jones. Police confirmed that the murder weapon used was a.30 caliber rifle. In Mr. Lara s confession he professed to having killed those kids with a.30 caliber rifle. This is a very specific piece of information that, considering its timing before trial, would have been known likely only to the police and the murderer. Other pieces of independent evidence corroborate Mr. Lara s story. First, Mr. Lara frequently made marijuana runs around the community for his father. Multiple partygoers at the dock reported that during the New Year s Eve party marijuana was distributed. It is therefore plausible that Mr. Lara supplied the marijuana at the party, and that he would have thus been in the vicinity of the victims at the time of their murders. Second, police have indicated that Mr. Lara s father has been known to trade marijuana for rifles. It would not have been difficult then for Mr. Lara, who deals for his father, to have obtained one of these rifles during the course of his marijuana trades. This independent evidence, at the very least, corroborates that Mr. Lara 17

could have had reason to be at the scene of the crime and that he had the capability to acquire a weapon such as that used in the murders. In regards to independent evidence, there remains no confirmed eye-witnesses to the murders committed. Jessica Minder and Robert Clark testified to being in the vicinity of the crime scene, having heard gunshots, and having seen the two bodies after the shots were fired. But neither witness saw what happened during the shooting nor who fired the shots. Ultimately, while there are multiple sources of independent evidence to support his statement, there is no evidence that would fatally undermine Mr. Lara s confession. b. The General Circumstances Corroborate Mr. Lara s Confession Additionally, the general circumstances of Mr. Lara s confession lend themselves in support of the overall trustworthiness of his confession. Two primary aspects in this case support the trustworthiness of Mr. Lara s confession: (1) the lack of a close relationship between Mr. Lara and Kenny Bearson; and (2) the fact that Mr. Lara had nothing to gain in making these statements. Both of these factors have been widely used by courts in determining the trustworthiness of self-incriminating hearsay statements. See United States v. Silverstein, 732 F.2d 1338, 1346 (7th Cir.1984), cert. denied, 469 U.S. 1111 (1985); United States v. Price, 134 F.3d 340, 347 (6th Cir.1998); United States v. Lozado, No. 14-1094, 2015 WL 304680, at *10 (10th Cir. Jan. 20, 2015). First, no evidence has been offered to show a special relationship between Mr. Lara and Kenny Bearson. By making this confession, Mr. Lara essentially lays his head on the chopping block in place of Mr. Bearson s. The lack of relationship between the two bolsters the genuineness of the confession. Had Mr. Bearson been a close friend or family member, there might be a motive to lie. But such is not the case. Typically, courts have used the relationship of 18

the confessor and exculpated party as a tool in determining the trustworthiness of a confession when the two have acted as apparent accomplices in a crime. See Lozado, 2015 WL 304680, at *10; Henderson, 736 F.3d 1128. This tool thus prevents one perpetrator of a crime from acting as the fall man and releasing all others involved from liability. But this reasoning does not apply to Mr. Lara s confession. Mr. Lara was not a suspect in the murders and had no reason to fabricate a confession in order to exculpate a young man with whom he had no apparent relationship. Second, Mr. Lara s confession did not serve any purpose of currying favor with authorities. Feigned confessions to curry favor are typically used in order to shield oneself from greater liability by making a small confession to police, and oftentimes then shifting the greater liability to a third party. See, e.g., Williamson, 512 U.S. at 603. Again, the reasoning behind this suspicion is not applicable to Mr. Lara s confession. Mr. Lara had been stopped by the police for a completely unrelated and far less serious crime. His confession to murder could not have helped him in his present trouble, and certainly would not have served to curry favor with the police. In short, Mr. Lara had nothing to gain by making a blatant confession to such a serious crime. When a party has nothing to gain in making a confession, the presumption is that the confession is trustworthy. Chambers, 410 U.S. at 300-01. c. The Trustworthiness of Deputy Finster is Irrelevant Lastly, in regards to the overall trustworthiness of Mr. Lara s confession, it is prudent to note that the credibility of the witness, Deputy Finster, should not play any part in the admissibility of this hearsay evidence. As a matter of standard hearsay analysis, the credibility of the in-court witness regarding the fact that the statement was made is not an appropriate inquiry. 2 K. Broun, McCormick on Evidence 319 (6th ed.2006) (footnotes omitted). Indeed, 19

the credibility of the witness who relates the statement is not a proper factor for the court to consider in assessing corroborating circumstances. Fed. R. Evid. 804 Advisory Committee's Note (2010). The Advisory Note further explains that [t]o base admission or exclusion of a hearsay statement on the witness's credibility would usurp the jury's role of determining the credibility of testifying witnesses. Id. The witness is able to come before the jury and so it is left to the jury, not the judge, to determine its credibility. The trustworthiness of this hearsay testimony should be left then to the jury to decide. B. Mr. Lara s Confession Probably Would have Affected the Outcome of the Trial Had Mr. Lara s Confession been heard and admitted into the initial trial, Mr. Bearson likely would have been acquitted. To prevail on a motion for a new trial based on newly discovered evidence, courts have consistently required that a defendant must establish five elements: (1) The evidence was discovered after trial; (2) the failure to learn of the evidence was not caused by lack of diligence; (3) the new evidence is not merely impeaching or cumulative; (4) the new evidence is material to the principal issues involved; and (5) the new evidence would probably produce an acquittal if a new trial were granted. United States v. Hall, 854 F.2d 1269, 1271 (11th Cir. 1988); United States v. Hill, 737 F.3d 683, 687 (10th Cir. 2013) cert. denied, 134 S. Ct. 1905, 188 L. Ed. 2d 934 (2014); United States v. Wade, No. 13-3520-CR, 2014 WL 5858634, at *1 (2d Cir. Nov. 13, 2014). The first four elements are all easily met: (1) Mr. Lara s confession was not discovered until after Mr. Bearson filed for appeal; (2) there was no possible way to have known of this confession because Deputy Finster did not report it; (3) the confession is not used for impeachment, but for substance; (4) the evidence is material because it is evidence of the identity of the murderer. 20

The only element contested is whether Mr. Lara s confession would have probably produced an acquittal for Mr. Bearson. This element is satisfied by the fact that if Mr. Lara killed those kids, then Mr. Bearson did not. The purpose of the police investigation and federal trial has been to discover who killed Billy Smith and Sally Jones. The case against Mr. Bearson becomes, at the very least, highly questionable in light of Mr. Lara s confession. The government has provided no motive, no eye-witnesses, and no direct evidence tying Mr. Bearson to the murder weapon. Even without Mr. Lara s confession this case could have gone in Mr. Bearson s favor. Thus, Mr. Lara s confession was likely to influence the outcome of Mr. Bearson s trial. Consider a jury that, while hearing an already weak case against a young man who pleads his innocence, is provided the testimony of third party claiming guilt of the crime. Surely this evidence would have led to the acquittal of Mr. Bearson. In a criminal system which requires a proof beyond a reasonable doubt, this newly introduced confession to guilt by a third party would have provided that reasonable doubt. Mr. Lara s recently discovered confession falls directly in line with the statement against interest exception to hearsay under Rule 804(b)(3). This newly discovered evidence is of such a nature that, if true, it would likely lead to the acquittal of Mr. Bearson. The right and ability to determine the credibility of hearsay testimony falls squarely upon the shoulders of the jury. Accordingly, this Court should vacate Mr. Bearson s conviction and remand this case for a new trial where Mr. Bearson may adequately exercise his Constitutional right to defend himself. 21

CONCLUSION For these reasons, Petitioner asks that this court reverse the Thirteenth Circuit Court of Appeals on both issues and vacate Petitioner s conviction. 22