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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
i
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?
ii
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
iii
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
iv
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
v
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
1
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.
2
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.
3
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
4
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
5
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.
6
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
7
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.
8
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
9
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
10
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.
11
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
12
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.
13
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
14
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.”
15
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
16
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
17
“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
18
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
19
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,
20
“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.
21
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.
22
CONCLUSION
For these reasons, Petitioner asks that this court reverse the Thirteenth Circuit Court of
Appeals on both issues and vacate Petitioner’s conviction.
