Upload
jeffrey-van-erp
View
61
Download
0
Embed Size (px)
Citation preview
Team 16
No. 16- ______________________________________________________________________________
IN THE
SUPREME COURT OF THE UNITED STATES
FEBRUARY TERM, 2016
GARY WALSH, Petitioner,
v.
STATE OF SETONIA Respondent.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF SETONIA
BRIEF FOR RESPONDENT
Team 16 Counsel for the Respondent
i
QUESTIONS PRESENTED
I. Whether a state can criminalize the refusal of a warrantless search when the state
strictly limits that criminalization to a recognized exception of the warrant requirement?
II. Whether the Sixth Amendment’s Speedy Trial Clause applies to the sentencing of
the convicted after a verdict has been rendered and the purposes of a speedy trial are no longer served?
ii
TABLE OF CONTENTS
QUESTIONS PRESENTED……………………………………………………………………..i TABLE OF AUTHORITIES……………………………………………………………………ii OPINIONS BELOW……………………………………………………………………………..1 CONSTITUTIONAL PROVISIONS…………………………………………………………...1 STANDARD OF REVIEW……………………………………………………………………...1 STATEMENT OF THE CASE………………………………………………………………….1
A. Statement of Facts………………………………………………………………..1
B. Procedural History……………………………………………………………….3 SUMMARY OF THE ARGUMENT…………………………………………………………...4 ARGUMENT…………………………………………………………………………………….6 I. STATES MAY CRIMINALIZE AN ARRESTEE'S REFUSAL TO TAKE A
CHEMICAL TEST FOR THE PURPOSES OF RECORDING BLOOD ALCOHOL CONTENT BECAUSE SUCH SEARCHES ARE PER SE REASONABLE UNDER THE SEARCH INCIDENT TO ARREST WARRANT EXCEPTION AND NO EXEMPTION APPLIES.………………………………………………………………6
A. States Can Criminalize Refusal of Chemical Test Searches Incident to Lawful
Arrests Because Searches Incident to Lawful Arrests are Per Se Reasonable Intrusions Upon the Fourth Amendment.……………………………………..7
B. This Court's Reasoning in Chimel, Gant, and Riley Upholds the Application
of the Search Incident to Lawful Arrest Exception to Chemical Tests in the DWI Context.…………………………………………………………………….9
C. This Court's Ruling in McNeely Recognizes that a Warrantless Chemical
Test is Reasonable Under the Per Se Reasonableness of a Search Incident to a Driving While Impaired Arrest and That Implied Consent Laws are Appropriate Legal Tools To Effectuate State Enforcement of Drunk Driving Laws.……………………………………………………………………………12
iii
II. THE SIXTH AMENDMENT’S RIGHT TO A SPEEDY TRIAL DOES NOT EXTEND TO POST-CONVICTION DELAYS BECAUSE THE SENTENCING PROCESS HAS A DISTINCTIVE PROCEDURE AND PURPOSE THAT IS BEST SUPPORTED THROUGH OTHER CONSTITUTIONAL REMEDIES.………….16
A. Sentencing has Only Been Considered an Extension of Trial In Dicta for an Unrelated Purpose and Holds No Binding Authority.………………………..17
B. The Characteristics Of the Sentencing Process are Distinct From the
Qualities That Define a Trial and These Differences Have Been Exemplified in Various Rules and Laws Throughout History.…………………………….18
C. An Expansive Reading of the Speedy Trial Clause Does Not Support Its
Purposes of Protecting the Accused Person Preparing For Trial.……………………………………………………………………………..20
D. The Due Process Clause Provides the Appropriate Avenue of Relief Because
it Recognizes Both the Interests of the Convicted Person and the Public Through More Moderate Remedies.…………………………………………..22
CONCLUSION…………………………………………………………………………………24
iv
TABLE OF AUTHORITIES
UNITED STATES SUPREME COURT CASES
Alleyne v. United States, 133 S.Ct. 2151 (2013)………………………………………………...19
Apprendi v. New Jersey, 530 U.S. 466 (2000)……………………………………………..……21
Arizona v. Gant, 556 U.S. 332 (2009)………………………………………...……8, 9, 10, 11, 12
Barker v. Wingo, 407 U.S. 514 (1972)…………………………………………………...…passim
Bozza v. United States, 330 U.S. 160 (1947)…………………………………………………....23
Brigham City v. Stuart, 547 U.S. 398 (2006)……………………………….…….………………6
Camara v. Municipal Court of San Francisco, 387 U.S. 523 (1967)…………………….……..6, 9
Chimel v. California, 395 U.S. 752 (1969)……………………..………………………..6, 7, 9, 12
In re Winship, 397 U.S. 358 (1970)………………………………………………………...…....19
Katz v. United States, 389 U.S. 347 (1967)……………………………………………………..7
Klopfer v. North Carolina, 386 U.S. 213 (1967)……………………………………………..….21
Maryland v. King, 133 S.Ct. 1958 (2013). ………………………………………………..12, 13
Missouri v. McNeely, 133 S.Ct. 1552 (2013)……………………………………………….passim
New York v. Class, 475 U.S. 106 (1986)……………………………………………..…………15
Pollard v. United States, 352 U.S. 354 (1957)…………………………………………….....17, 18
Riley v. California, 134 S.Ct., 2473 (2014)…………………………………..……………..passim
Rogers v. United States, 422 U.S. 573 (1994)………………………………………………...…19
Shannon v. United States, 512 U.S. 573 (1994)………………………………………………....19
Strunk v. United States, 412 U.S. 434 (1973)…………………………………..……………16, 22
United States v. Lovasco, 431 U.S. 783 (1977)…………………………………………...…16, 23
United States v. Robinson, 414 U.S. 218 (1973)…………………………………………6, 7, 8, 9
United States v. Sprague, 282 U.S. 716 (1931)……………………………………………….....18
Weeks v. United States, 232 U.S. 383 (1914)……………………………...……………………..7
v
UNITED STATES CIRCUIT COURT CASES
Burkett v. Cunningham, 826 F.2d 1208 (3d 1987)………………………………..................…..23
Burkett v. Fulcomer, 951 F.2d 1431 (3d Cir. 1991)……………………………………………..22
Perez v. Arizona, 793 F.2d 249 (10th Cir. 1986)……………………………………………..….21
United States v. Reid, 929 F.2d 990 (4th Cir. 1991)……………………………………….……12
United States v. Sanders, 452 F.3d 572 (6th Cir. 2006)…………………………………………21
STATE SUPREME COURTS CASES McNultry v. Curry, 42 Ohio St.2d 341 (Ohio 1975)…………………………………………..15
People v. Harris, 170 Cal. Rptr.3d 729 (Cal. Ct. App. 2014)……………………………………15
State v. Bernard, 859 N.W.2d 762 (Minn. 2015)…………………………………….………10, 15
State v. Betterman, 342 P.3d 971 (Mont. 2015)………………………...…..…….………………1 State v. Nickerson, 322 P.3d 421 (Mont. 2014)…………………………………………………1 CONSTITUTIONAL PROVISIONS
U.S. Const. amend. IV…………………………………………………………………………… 6
U.S. Const. amend. VI………………………………………………...…………………16, 18, 23
STATUTORY PROVISIONS 28 U.S.C. § 1254…………………………………………………………………………………1 COURT RULES Fed. R. Crim. Pro. 32(a)………………………………………………………………………….20 Fed. R. Crim Pro. 48(b)…………………………………………………………………...……..20 UNITED STATES SENTENCING GUIDELINES U.S. Sentencing Guidelines Manual § 6A1.3 cmt. background (2004)……………………….…19 MISCELLANEOUS SOURCES Black’s Law Dictionary (10th ed. 2014)……………………………………………………..…..18
vi
Criminal Pattern Jury Instruction Committee of United States Court of Appeals for the Tenth Circuit, Tenth Circuit Criminal Pattern Jury Instructions, § 1.20 (2011)…………………….….19
NHTSA, Traffic Safety Facts, 2012 Data 1 (No. 811870, Dec. 2013)………………..…………..8
OPINIONS BELOW
The majority decision of the Supreme Court of Setonia reversing the district court’s
judgment for the Fourth Amendment issue, and affirming the decision for the Sixth Amendment
issue is unreported, and can be found in the Record from pages one through seven. The
dissenting opinion can be found in the Record from pages seven through ten.
STATEMENT OF JURISDICTION
This Court has jurisdiction pursuant to 28 U.S.C. §1254.
CONSTITUTIONAL PROVISIONS
The following constitutional provisions appear in this brief: U.S. Const. amend. IV; U.S.
Const. amend. VI.
STANDARD OF REVIEW
A de novo standard of review is applied by this Court for questions of law such as a
denial of a dismissal, and the trial court’s analysis of constitutional principles. State v.
Betterman, 342 P.3d 971, 974 (Mont. 2015) (citing State v. Nickerson, 322 P.3d 421, 422 (Mont.
2014)).
STATEMENT OF THE CASE
A. Statement of Facts
On October 4, 2014, Brick City Police Officers Wilson and Egan were dispatched to the
scene of a reported disturbance of three intoxicated men attempting to remove a boat from a river
launch with a truck in Sandy Hook, Setonia. R. at 1. The officers approached all three men and
observed that the truck was hanging over the pavement, detected a strong odor of alcohol, and
noted that Petitioner Gary Walsh was in his underwear. R. at 1. Mr. Walsh has incurred four
impaired driving convictions since 2008. R. at 2 n.2. During questioning, Mr. Walsh admitted
2
that he had been drinking, but denied being the truck's driver, despite the fact that he was holding
the keys to the truck. R. at 1. A third-party witness identified Mr. Walsh as the truck driver and
Mr. Walsh was arrested on suspicion of driving while impaired. R. at 1. Officer Egan read Mr.
Walsh Setonia's Implied Consent Advisory, which explained to Mr. Walsh that his refusal to take
a chemical test when offered was a crime, and that he had the right to consult with an attorney
first, but contingent on there being no unreasonable delay in administering the test. R. at 2. Mr.
Walsh declined to take a chemical test and the State then charged him with two counts of the
crime of First Degree Driving While Impaired – Test Refusal. R. at 3. No chemical test was
forced and neither officer attempted to seek a warrant to force one. R. at 2.
Mr. Walsh’s bail jumping conviction stemmed from a series of confrontations with the
law. The first encounter occurred on September 1, 2014 when Mr. Walsh was arrested for family
member assault during a raucous Labor Day picnic. R. at 3. On September 9, 2014, Mr. Walsh
failed to appear for his arraignment on the assault charges. R. at 3. Mr. Walsh failed to appear
again on September 10, 2014, after the court granted a continuance, and an arrest warrant was
issued. R. at 3. This warrant came to the attention of Brick City Officers Egan and Wilson on
October 4, 2014 during Mr. Walsh’s arrest for Driving While Impaired- Test Refusal. R. at 2, 3.
On October 13, 2014, Mr. Walsh was formally charged with bail jumping after admitting to
Judge Brookheimer during his test refusal arraignment in the Superior Court of Setonia that he
was aware of missing his September court appearance. R. at 3. On October 24, 2014, Mr. Walsh
pled guilty to family member assault, and was sentenced to five years imprisonment with two
years suspended and credit for time served. R. at 3.
After Mr. Walsh pled guilty to bail jumping on November 14, 2014 the State filed notice
of its intention to designate Walsh as a persistent felony offender. R. at 3. Nearly a week later,
3
Mr. Walsh objected to the designation, and after a hearing on January 21, 2015 the matter was
taken under advisement for Judge Ryan’s careful consideration. R. at 3. In the meantime, Mr.
Walsh’s revised presentence investigation report was prepared, and completed in May 2015. R.
at 3. A sentencing date was set on July 8, 2015, and despite this notice, Mr. Walsh waited until
the day of sentencing, July 28, 2015, to file a motion to dismiss the charge on grounds of a
speedy trial violation. R. at 3. As a result, sentencing was delayed in order for the State to
respond, and for Judge Ryan to consider the arguments. R. at 3. Mr. Walsh’s motion was denied
in Judge Ryan’s October 13, 2015 decision, and again by the Superior Court to whom Mr. Walsh
sent an affidavit affirming that the one year and approximately one month he spent in the Brick
City Detention Center negatively affected his health, well-being, and access to services only
available in state prison. R. at 3, 4. Shortly thereafter, Mr. Walsh’s last request for relief was
denied and he was sentenced on December 28, 2015 to serve a consecutive term of seven years,
with four years suspended in Setonia State Prison. R. at 4.
B. Procedural History
Following his arrest for Driving While Impaired-Test Refusal, Gary Walsh’s attorney
filed a motion to dismiss arguing that criminalization of refusal to take a breath test is in
violation of the Fourth Amendment and Setonia’s Constitution. R. at 2. The court granted
Walsh’s motion, and dismissed the charge without disturbing the constitutionality of the statute.
R. at 2. The State appealed the decision to the Setonia Appellate Division. R. at 2. The matter
was transferred to the Supreme Court of Setonia due to the constitutional importance of the issue.
R. at 2.
On July 28, 2015, the date of Mr. Walsh’s sentencing for the bail jumping charge,
Walsh’s attorney filed a motion to dismiss based on a speedy trial violation for delay in
4
sentencing. R. at 3. On October 13, 2015 Judge Ryan issued a written opinion denying Mr.
Walsh’s motion. R. at 3. On November 24, 2015 Mr. Walsh filed an affidavit with the Superior
Court requesting dismissal of the bail jumping charge. R. at 4. The Superior Court denied the
request, and Mr. Walsh appealed to the Setonia Appellate Division. R. at 4. The matter was
transferred to Setonia Supreme Court due to the constitutional importance. R. at 4.
The Setonia Supreme Court consolidated both appeals for consideration, and held neither
Mr. Walsh’s Fourth or Sixth Amendment rights had been violated. R. at 4. The Supreme Court of
the United States granted certiorari on February 8, 2016. R. at 11.
SUMMARY OF THE ARGUMENT
This case is about the ongoing struggle by law enforcement to balance the practical
realities of the proper administration of justice with the constitutional protections of criminal
defendants. The first issue exemplifies the struggles of the State to regulate and prevent drunk
driving, a crime which is both pervasive and destructive. The damage inflicted by drunk driving
is significant, and in order to better control rising death tolls, the State of Setonia enacted Implied
Consent Statute 169A.51, which criminalized test refusal after an arrest for probable cause has
been effectuated. The statute criminalizes refusal of a warrantless search, but does so in such a
way as to strictly limit its criminalization to a lawful exception to the warrant clause.
While the Fourth Amendment does require a warrant before a search, there are
exceptions. The Search Incident to Lawful Arrest exception is a per se reasonable exception
which requires an arrest under probable cause before a search may be conducted. The State of
Setonia’s Implied Consent Statute criminalizes the refusal of a warrantless search, but requires
both probable cause and an arrest before the statute triggers and the refusal becomes criminal.
The statute is, in effect, a codification of a per se reasonable exception to the warrant
5
requirement. As a per se reasonable exception, no justification is necessary unless a recognized
exemption from the Search Incident to Lawful Arrest exception exists.
By strictly limiting its statute to only trigger upon the existence of a lawful exception, the
State of Setonia seeks to grant police officers a powerful, but lawful tool, which would allow
them to compel the preservation of otherwise unsecured evidence. By adopting the Search
Incident to Lawful Arrest exception as a requirement, Setonia has crafted a statute that both
addresses public policy concerns and provides clear guidance and restraints on law enforcement.
The Speedy Trial Clause of the Sixth Amendment traditionally applied to prejudicial
delays occurring after an accused person was indicted, but before trial. The expansion of this
right to include sentencing is unprecedented, and is unsupported by Supreme Court case law,
which has only expanded the meaning of the Clause in order to address a marginally related
sentencing issue. The text of the Clause provides important clues, as the plain reading of
“accused” and “trial” is inconsistent with the meaning of “convicted” and “sentence.” These
textual differences are supported by the procedures and qualities that comprise a criminal trial.
A trial is characterized by a fact-finding jury, a high burden of proof, and remains focused on
determining guilt or innocence. Conversely, the sentencing phase is orchestrated by a judge, who
applies a lower standard of proof, with the goal of determining the appropriate punishment for
the convicted person. In addition to these distinctions, the established purposes of the Speedy
Trial Clause support the accused person’s preparation and well-being before trial, but not that of
the convicted person at sentencing because the interests of both the criminal defendant and
society shift during these phases. The interests of the convicted person are best addressed
through other constitutional remedies such as the Due Process Clause, which ensures the
criminal prosecution is not undermined through inflexible remedies.
6
ARGUMENT
I. STATES MAY CRIMINALIZE AN ARRESTEE'S REFUSAL TO TAKE A CHEMICAL TEST FOR THE PURPOSES OF RECORDING BLOOD ALCOHOL CONTENT WHEN SUCH SEARCHES ARE PER SE REASONABLE UNDER THE SEARCH INCIDENT TO ARREST WARRANT EXCEPTION AND NO EXEMPTION APPLIES.
This Court should uphold the constitutionality of implied consent statutes that criminalize
warrantless chemical test refusal, when said statutes strictly limit themselves to established
exceptions to the warrant requirement. Setonia's Implied Consent Statute only triggers upon the
refusal by an arrestee to submit to a lawful warrantless chemical test following an arrest for
probable cause of Driving While Impaired, and so is constitutional.
The Fourth Amendment to the United States Constitution provides that “the right of the
people to be secure in their persons, houses, papers, and effects, against unreasonable searches
and seizures” and that “no Warrants shall issue, but upon probable cause.” U.S. Const. amend.
IV (emphasis added). Reasonableness is the cornerstone of Fourth Amendment limitations on
state searches, and governs the permissibility of a warrantless search exception. Brigham City v.
Stuart, 547 U.S. 398, 403 (2006). One exception to the warrant requirement is the Search
Incident to Lawful Arrest (SILA) exception, which makes per se reasonable any search by police
following a lawful arrest for probable cause. United States v. Robinson, 414 U.S. 218, 235
(1973); See also Chimel v. California, 395 U.S. 752, 763 (1969). States can criminalize the
refusal to consent to a warrantless search which falls within a recognized exception to the
warrant clause. See Camara v. Municipal Court of San Francisco, 387 U.S. 523, 527 (1967).
Setonia's Implied Consent Statute criminalizes an arrestee's refusal to take a chemical
test, “to determine if the person is under the influence of alcohol, controlled substances, or
hazardous substances” once the suspect has been lawfully arrested under the probable cause
7
standard. R. at 1-2 n.1. Setonia's Implied Consent Statute only triggers upon the existence of a
search incident to lawful arrest for probable cause, which is a “specifically established and well
delineated exception[]” to the warrant requirement. Katz v. United States, 389 U.S. 347, 357
(1967). Because the search refused always falls under a recognized exception, Setonia's
criminalization of the search refusal is constitutional.
A. States Can Criminalize Refusal of Chemical Test Searches Incident to Lawful Arrests Because Searches Incident to Lawful Arrests are Per Se Reasonable Intrusions Upon the Fourth Amendment.
The Search Incident to Lawful Arrest exception requires only that the arrest preceding the
search be lawful and supported by probable cause. Once an arrest supported by probable cause is
executed, “a search incident to the arrest requires no additional justification.” Robinson, 414 U.S.
at 235. Requiring no additional justification, the searches refused are per se reasonable, lawful,
and constitutional. Therefore, no illegal search refusal is criminalized by Setonia's Implied
Consent Statute.
The Search Incident to Lawful Arrest exception is based on the right of the state “always
recognized under English and American law” to search an arrestee in a lawful arrest. Weeks v.
United States, 232 U.S. 383, 392 (1914). This Court has recognized the established nature of this
exception, noting that “the validity of the search of a person incident to a lawful arrest has been
regarded as settled from its first enunciation.” Robinson, 414 U.S. at 224. Because the post-arrest
search of a suspect's person “requires no additional justification,” searches following an arrest for
probable cause are per se reasonable without a warrant. Id. at 235.
Because searches incident to a lawful arrest are categorically constitutional in nature, this
court has primarily limited the search incident to lawful arrest exception based on the area
surrounding a defendant, See Chimel, 395 U.S. at 763 (1969) (limiting the SILA exception to a
8
defendant's person or area); See also Arizona v. Gant, 556 U.S. 332, 339 (2009) (limiting the
SILA exception to the search of an arrestee's person and the area of a defendant's control), and
has only limited the search of an arrestee's person based on a categorical exemption for cellular
data due to the unique nature of the category, Riley v. California, 134 S.Ct., 2473, 2485 (2014).
Upon a valid arrest supported by probable cause, a law enforcement officer may conduct
“a full search of the person.” Robinson, 414 U.S. at 235. This Court has recently upheld the
Robinson rejection of “case-by-case adjudication” and reaffirmed the per se reasonableness of
warrantless searches incident to lawful arrests. Riley v. California, 134 S.Ct. 2473, 2485 (2014)
(citing Robinson, 414 U.S. at 236). The upholding of the per se reasonableness of the SILA
exception was motivated in part by this Court's long-standing policy of providing “clear
guidance to law enforcement through categorical rules.” Id. at 2491. The use of categorical rules
promotes an even application of criminal procedure, by avoiding case-by-case adjudication
which would lead to variable outcomes in Fourth Amendment protection cases, based on
jurisdiction efficiency, resources, and timing. Thus, the use of SILA as a categorical standard by
Setonia’s Implied Consent Statute, is consistent with this Court’s policy.
Reaffirming the per se reasonableness of the SILA exception is in accordance with this
Court's policy, particularly in a crime as pervasive and destructive as drunk driving where
officers on the scene act as the primary line of prevention. See NHTSA, Traffic Safety Facts,
2012 Data 1 (No. 811870, Dec. 2013) (reporting an average of one alcohol-impaired-driving
fatality every fifty-one minutes). The warrantless search of an arrestee through a chemical test
incident to an arrest for probable cause does not include the search of cellular data, which is the
only categorical exemption recognized by this Court, Riley, 134 S.Ct. at 2485, and so a chemical
test incident to a lawful arrest for DWI would require no further justification, Robinson, 414 U.S.
9
at 235. Setonia's Implied Consent Statute only triggers when a per se reasonable exception to the
warrant clause is present, so the statute does not criminalize the refusal of any illegal search.
Camara, 387 U.S. at 527. Lacking such a categorical exemption, Setonia's Implied Consent law
is constitutional.
B. This Court's Reasoning in Chimel, Gant, and Riley Upholds the Application of the Search Incident to Lawful Arrest Exception to Chemical Tests in the DWI Context.
In order to be exempted from the search incident to lawful arrest exception, the search of
a person must be unattached from the need to secure a crime scene from interference, Gant, 566
U.S. at 335, or possess unique facts which elevate privacy concerns above the compelling
government interest in searching the defendant, Riley, 134 S.Ct. at 2486. Because Setonia's
Implied Consent Statute only criminalizes the refusal of searches rooted in the justifications of
Chimel and containing none of the unique factors present in Riley, this Court should decline to
extend an exemption and reaffirm the use of chemical tests under the SILA exception as a
necessity to secure inherently unstable evidence.
In Chimel, this Court justified the search of a person for evidence because, “it is entirely
reasonable for the arresting officer to search for and seize any evidence on the arrestee's person
in order to prevent its concealment or destruction.” 395 U.S. at 762-63. The chemical test of
Setonia's Implied Consent Statute is administered “for the purpose of determining the presence
of alcohol, a controlled substance or its metabolite, or a hazardous substance . . . .” R. at 1-2 n.1.
In Gant, this Court ruled that the SILA exception for the automobile context applies
“only when the arrestee is unsecured and within reaching distance of the passenger compartment
at the time of the search.” 566 U.S. 332, 333 (2009) (emphasis added). This Court in Gant held
that “the justifications underlying Chimel no longer exist[ed] because the scene [was] secure and
10
the arrestee [was] handcuffed, secured in the back of a patrol car, and under the supervision of an
officer,” and this combination of factors rendered the search of an area for evidence
unconstitutional. Id. at 335 (emphasis added). The language of the holding specifically cites to
the security of the scene as an integral part of this Court’s decision. Id. The Minnesota Supreme
Court has concurred on this matter, holding that the reach of the defendant is irrelevant in the
context of a SILA exception where evidence of the crime arrested for is certain to be destroyed.
State v. Bernard, 859 N.W.2d 762, 766 (Minn. 2015).
In Riley, this Court prohibited the search of the data contained within an arrestee's phone,
because “once law enforcement officers have secured a cell phone, there is no longer any risk
that the arrestee himself will be able to delete incriminating data from the phone.” Riley, 134
S.Ct. at 2486. The Government argued that once physically secured, a cell phone was still
vulnerable to “remote wiping and data encryption.” Id. at 2478. This Court found this argument
unconvincing due to the lack of evidence that either type of interference was “prevalent.” Id. at
2486. The practical methods available police to secure phone data also supported this Court's
exemption of cellular data, because officers had many alternative ways to secure data without a
search. Id. The unlikelihood of destruction, as well as these alternative methods of securing
evidence, effectively nullified the Chimel justification to search for evidence in a SILA, and so
this Court categorically exempted cellular data. Id.
This Court also noted that the search of data on a cell phone “differ[s] in both a
quantitative and a qualitative sense from other objects.” Riley, 134 S.Ct. at 2489. In traditional
searches, “the possible intrusion on privacy is not physically limited in the same way” and so the
privacy interests of an arrestee are weighed against the search of phone data within the SILA
exception. Id. Both prongs of this Court's reasoning in Riley are inapplicable in the context of a
11
chemical test pursuant to a DWI arrest, and so a unique exemption should not be applied to
chemical tests.
Whereas the decision in Riley found the concerns of evidence destruction to be unlikely,
the metabolization of blood alcohol content (BAC) in a DWI case “is not simply a belief that any
alcohol in the bloodstream will be destroyed; it is a biological certainty.” Missouri v. McNeely,
133 S.Ct. 1552, 1571 (2013) (5-4 decision) (Alito, J., dissenting). The practical alternatives
available to an officer in securing and preserving the data of a cell phone are absent with regards
to BAC. The only method to record the BAC accurately at the time of the arrest is through a
chemical test as required by Setonia's Implied Consent Statute.1 This lack of practical and
accurate alternatives stands in contrast to the readily available methods for officers in preserving
cellular data, Riley, 134 S.Ct. at 2486, or the traditional methods of securing a crime scene in
Gant, 566 U.S. at 355.
The privacy implications articulated by Riley are also absent from the chemical test,
because the information available through a chemical test under Setonia's Implied Consent
Statute is limited. Riley noted that phones “might hold photographs, picture messages, text
messages, Internet browsing history, a calendar, a thousand-entry phone book, and so on.” Riley,
134 S.Ct. at 2489 (citation omitted). Chemical tests under Setonia's Implied Consent law provide
one type of information; blood alcohol content, for which “[t]here is a compelling need to search
because alcohol—the nearly conclusive evidence of a serious crime—is dissipating from the
bloodstream.” McNeely, 133 S.Ct. at 1571 (Alito, J., dissenting). While motorists do maintain a
1 This Court has recognized that “[w]hile experts can work backwards from the BAC at the
time the sample was taken to determine the BAC at the time of the alleged offense, longer intervals may raise questions about the accuracy of the calculation.” McNeely, 133 S.Ct. at 1563 (emphasis added). In the context of a criminal trial under the probable cause standard, accuracy of a crime scene is paramount to successful enforcement.
12
strong privacy concern in “in preventing an agent of the government from piercing his skin,”
McNeely, 133 S.Ct. at 1564, these privacy concerns are lessened in the context of a chemical test
following a lawful arrest for DWI due to the “reduced expectations of privacy caused by the
arrest.” Maryland v. King, 133 S.Ct. 1958, 1980 (2013) (holding that in the context of a valid
arrest supported by probable cause, the arrestee's expectations of privacy were lessened and
insufficient to render unreasonable a cotton swab). The Second Circuit has agreed, holding that
breathalyzer tests were reasonable searches incident to lawful arrests. See United States v. Reid,
929 F.2d 990, 994 (4th Cir. 1991). These lessened privacy concerns were insufficient to
overcome the unique context of cellphones, which “place vast quantities of personal information
literally in the hands of individuals.” Riley, 134 S.Ct. at 2485. In contrast, Setonia's Implied
Consent Statute strictly limits the search to identify substances related to the DWI arrest. R. at 1-
2 n.1 Because of this narrow application, the broad privacy concerns of Riley are inapplicable to
DWI chemical tests under Setonia's Implied Consent Statute.
Chemical tests incident to an arrest for DWI meet neither of the concerns which
motivated the Riley exemption to cell phone data, and are based on the concerns of Chimel,
Gant, and Riley that evidence, in this case certain to be destroyed, must be secured for future
proceedings. This Court's prior reasoning and analysis compels it to not extend an exemption to
DWI chemical tests and to hold that the use of such tests is firmly rooted in the justifications of
Chimel.
13
C. This Court's Ruling in McNeely Recognizes that a Warrantless Chemical Test is Reasonable Under the Per Se Reasonableness of a Search Incident to a Driving While Impaired Arrest and That Implied Consent Laws are Appropriate Legal Tools To Effectuate State Enforcement of Drunk Driving Laws.
This Court's McNeely decision was a narrow rejection of Missouri’s attempted
application of a per se rule to the exigency exception, based on the natural metabolization of
alcohol. McNeely, 133 S.Ct. at 1568. This Court held that “in drunk-driving investigations, the
natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case
sufficient to justify conducting a blood test without a warrant.” Id. (emphasis added). Because
the case presented did “not provide this Court with an adequate analytic framework for a detailed
discussion of all the relevant factors that can be taken into account in determining the
reasonableness of a warrant,” this Court only recognized that “the metabolization of alcohol in
the bloodstream and the ensuing loss of evidence are among the factors that must be considered
in deciding whether a warrant is required.” Id. By narrowing its ruling, this Court left unclear
what combination of factors would allow a warrantless chemical test, but implicitly recognized
the reasonableness of a warrantless chemical test incident to a lawful arrest in its McNeely
decision. This Court effectively recognized that while natural metabolization alone is not
enough, it would be sufficient to justify a warrantless search in situations where other factors
were present. McNeely, 133 S.Ct. at 1568. Because exigency requires case-by-case adjudication
and “special facts,” this Court held that more was needed for exigency. Id. at 1557.
However, special facts and case-by-case analysis are not necessary in the context of a
search incident to arrest for DWI. The arrest for probable cause provides the requisite factor
required by this Court in McNeely. The arrest for probable cause prior to search imposes reduced
privacy expectations on the arrestee. King, 133 S.Ct. at 1980. These lowered privacy
14
expectations work in concert with the metabolization of alcohol, rendering a warrantless
chemical for BAC reasonable. Because Setonia's Implied Consent Statute would only trigger
when the additional factor of an arrest and the accompanying lowered privacy interests were
present, the search incident to lawful arrest provides the unspoken factor necessary in McNeely.
This holding from McNeely provides support to the SILA exception in the DWI context, which
is consistent with the plurality's explicit approval for Implied Consent Laws.
In writing for the plurality, Justice Sotomayor noted with approval that “all 50 States
have adopted implied consent laws that require motorists, as a condition of operating a motor
vehicle within the State, to consent to BAC testing if they are arrested or otherwise detained on
suspicion of a drunk-driving offense.” McNeely, 133 S.Ct. at 1566. These statutes are one of “a
broad range of legal tools to enforce . . . drunk driving laws and to secure BAC evidence without
undertaking warrantless nonconsensual blood draws.” Id. Setonia's implied consent law acts as
one of these legal tools, allowing officer to continue to regulate DWI crimes on roads without
requiring officers to forcibly draw blood in an unreasonable manner. This is consistent with the
application of Setonia's Implied Consent Statute in Mr. Walsh's case, where no warrantless
nonconsensual blood draw was forcibly conducted. R. at 1-2. This legal tool addresses the
plurality’s concerns of over-broad forced search power discussed in McNeely, while also
providing the guidance to law enforcement called for by the concurrence and dissents.
The dissent of McNeely argued that the plurality's holding led to a lack of guidance with
regards to typical drunk driving cases. 133 S.Ct. at 1569 (Alito, J., dissenting). Justice Kennedy,
in his concurring opinion, acknowledged this criticism, but noted the “[s]tates and other
governmental entities which enforce the driving laws can adopt rules, procedures, and protocols
that meet the reasonableness requirements of the Fourth Amendment and give helpful guidance
15
to law enforcement officials.” Id. (5-4 decision) (Kennedy, J., concurring). Setonia's Implied
Consent Statute effectively addresses this concern, by providing bright line rules based on a
codification of the SILA exception. This statute is enacts this Court's policy of providing “clear
guidance to law enforcement through categorical rules.” Riley, 134 S.Ct. at 2491. Use of
categorical rules is particularly applicable to DWI crimes, which are common, and in the context
of automobiles, where the privacy interest of the motorist is always lessened due to the unique
physical characteristics of automobiles and the State's interest in regulating their use. See New
York v. Class, 475 U.S. 106, 112-13 (1986). This is the purpose of the SILA exception, as such a
categorical rule provides clear guidance to officers as to the lawfulness of a search, and codifying
this exception provides clear guidance as to when a particular situation falls within the SILA
exception.
McNeely acknowledged the importance of such careful guidance for law enforcement,
and noted with approval the use of such statutes, without reservation for the consequence
incurred by refusal on the part of the defendant. McNeely, 133 S.Ct. at 1566 (speaking favorably
of “implied consent laws that require motorists, as a condition of operating a motor vehicle
within the State, to consent to [BAC] testing if they are arrested or otherwise detained on
suspicion of a drunk-driving offense”). Setonia chooses to impose criminal penalties for such
refusal, when an arrest for probable cause is present, because the search falls within an
applicable exception. State Courts have similarly upheld criminal penalties for test refusal
statutes, when the presence of an arrest and probable cause are required. Compare State v.
Bernard, 859 N.W.2d 762, 766 (Minn. S.Ct. 2015) (upholding a criminal punishment for test
refusal on the basis of a search incident to lawful arrest exception), and People v. Harris, 170
Cal. Rptr.3d 729, 734 (2014) (upholding the state's implied consent statute, which attaches
16
criminal penalties for refusing following arrest for probable cause), with McNultry v. Curry, 42
Ohio St.2d 341, 345 (Ohio. 1975) (upholding R.C. S. 4511.191 due to its use of administrative
punishment following reasonable grounds to suspect a DUI) (emphasis added). This Court's own
plurality, concurrences, and dissents in McNeely suggest the permissibility of Implied Consent
Statutes, even when those statutes impose criminal penalties for refusal. Compelled by the
reasoning of all opinions in McNeely, this Court should uphold the constitutionality of the State
of Setonia's Implied Consent Statute, and in so holding, uphold the constitutionality of similar
statutes which criminalize an arrestee's refusal to take a warrantless chemical test to identify the
presence of alcohol in their blood.
II. THE SIXTH AMENDMENT’S RIGHT TO A SPEEDY TRIAL DOES NOT EXTEND TO POST-CONVICTION DELAYS BECAUSE THE SENTENCING PROCESS HAS A DISTINCTIVE PROCEDURE AND PURPOSE THAT IS BEST SUPPORTED THROUGH OTHER CONSTITUTIONAL REMEDIES.
Under the Sixth Amendment of the United States Constitution, “[i]n all criminal
prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of
the State and district wherein the crime shall have been committed . . . .” U.S. Const. amend. VI.
Traditionally, this Court has looked at the particular circumstances surrounding a delay, and has
provided relief to those criminal defendants who have experienced prejudice as a result of
pretrial delays by balancing the four factors outlined in Barker v. Wingo, 407 U.S. 514, 530
(1972). This Court has held that the proper remedy for such delays is dismissal of the charges in
order to best support the purposes of the Speedy Trial Clause, and protect the accused person
awaiting trial. Strunk v. United States, 412 U.S. 434, 439-41 (1973). This cure has been
narrowly applied to the time between indictment and trial, as this Court has not expanded reading
of the Clause to extend to pre-indictment delays. United States v. Lovasco, 431 U.S. 783, 796-97
(1977). The Sixth Amendment’s Speedy Trial Clause is limited to protecting the accused person
17
during the pivotal point of the criminal prosecution; the trial stage. This Court should not
undermine the purposes of the Clause by expanding its reading to include protection of convicted
persons during sentencing, a distinct, post-trial proceeding.
A. Sentencing has Only Been Considered an Extension of Trial In Dicta for an Unrelated Purpose and Holds No Binding Authority.
The assumption presented in Pollard v. United States, 352 U.S. 354, 361 (1957), that
sentencing is “part of the trial for purposes of the Sixth Amendment,” was created for the limited
intention of determining the reasonableness of the delays in the defendant’s sentencing. Id. In
Pollard, the defendant pled guilty, and appeared before the sentencing judge who imposed no
formal sentence in his presence, but later clarified his order to impose three years of probation
after the defendant had left the courtroom. Id. at 356. This Court held that the imposition of a
new, valid sentence of two years imprisonment following the defendant’s probation violation
was not an infringement of the defendant’s right to a speedy trial because the delay was
accidental, and neither purposeful nor oppressive. Id. at 357, 361. The crux of Pollard is the
nature of the sentencing error that was only discovered when the defendant’s case resurfaced as a
result of his probation violation. Id. at 357. The court had operated under the mistaken belief that
it had appropriately adjudicated Pollard’s case until the error was revealed, and then corrected it
in a timely manner. Id. Pollard’s case is not representative of the cases such as that of Mr. Walsh
who waited 400 days for his bail jumping sentence, and now questions the constitutionality of
delays in sentencing promptness. R. at 4. To resolve this issue; however, lower courts have
looked to Pollard for an analysis of the Sixth Amendment’s Speedy Trial Clause that does not
exist. The determination of sentencing as a part of trial was peripheral to the Pollard holding, and
created no binding precedent. A judicial determination of the breadth of one’s speedy trial rights
has serious implications for the accused, convicted, and the public that deserves a thorough
18
analysis based not on a sentence of dicta, but on the words, history, and policy of the Sixth
Amendment’s Speedy Trial Clause.
B. The Characteristics of the Sentencing Process are Distinct From the Qualities That Define a Trial and These Differences Have Been Exemplified in Various Rules and Laws Throughout History.
The relevant words of the Sixth Amendment’s Speedy Trial Clause state, “In all criminal
prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . .
. .” U.S. Const. amend. VI. The words of the Constitution were intended by the framers to be
“used in their normal and ordinary . . . meaning.” United States v. Sprague, 282 U.S. 716, 731
(1931). The plain meaning and usage of the words “accused” and “trial” offer insight into the
limited applicability of the Speedy Trial Clause from the time of indictment to the finding of
guilt when coupled with the purposes of the Clause, “[] to prevent oppressive pretrial
incarceration; [] to minimize anxiety and concern of the accused; and [] to limit the possibility
that the defense will be impaired.” Barker, 407 U.S. at 532. The trial and sentencing phase of a
criminal prosecution are differentiated by their own procedures and rules that support their
distinctive meanings and purposes.
A criminal defendant’s protection under the Speedy Trial Clause concludes upon a
change of status from the accused to the convicted. Black’s Law Dictionary defines the
“accused” as “[a] person against whom legal proceedings have been initiated.” Black’s Law
Dictionary 26 (10th ed. 2014). Whereas the same dictionary defines convict as, “to find (a
person) guilty of a criminal offense upon a criminal trial, a plea of guilty, or a plea of nolo
contendre.” Id. at 408. The process by which guilt is proven is the trial a “formal judicial
examination of evidence and determination of legal claims in an adversary proceeding.” Id. at
1735. The finding of guilt or innocence by trial is the most crucial point in the criminal justice
19
process, and as such is safeguarded by rules and procedures separate from all other stages in the
adjudication, including sentencing.
A finding of guilt for committing a crime is independent of the imposition of a sentence
for that offense. This Court has held that a jury should “reach its verdict without regard to what
sentence might be imposed.” Shannon v. United States, 512 U.S. 573, 579 (1994) (quoting
Rogers v. United States, 422 U.S. 35, 40 (1975)). The jury’s distinct fact-finding role is
exemplified in the judge’s instructions, “If you find the defendant guilty, it will be my duty to
decide what the punishment will be. You should not discuss or consider the possible punishment
in any way while deciding your verdict.” Criminal Pattern Jury Instruction Committee of the
United States Court of Appeals for the Tenth Circuit, Tenth Circuit Criminal Pattern Jury
Instructions, § 1.20 (2011). Different parties not only deliver the verdict and sentence at separate
times, but the processes are also governed by their own standards of proof.
Traditionally, proof beyond a reasonable doubt has served as the prosecution’s required
standard of persuasion in criminal trials. In re Winship, 397 U.S. 358, 361 (1970). However, the
United Sentencing Commission has commented on the sufficiency of a lower standard for
sentencing saying, “use of a preponderance of the evidence standard is appropriate to meet due
process requirements and policy concerns in resolving disputes regarding application of the
guidelines to the facts of a case.” U.S. Sentencing Guidelines Manual § 6A1.3 cmt. background
(2004). This Court has applied a higher standard of proof for additional findings of fact for
sentencing range departures, but sentencing factors continue to be determined by the sentencing
judge at a lower standard. In Alleyne v. United States, 133 S.Ct. 2151 (2013), this Court held
that any fact that increases the penalty for an offense is an “element” that must be submitted to a
jury. In order to increase the defendant’s sentence from five years to a mandatory minimum of
20
seven years, the jury was required to make a factual finding that a weapon was “brandished”
during the crime. Id. at 2163. The jury’s role is to determine the elements of the crime, which
includes facts that will increase the minimum or maximum mandatory sentence. Id. at 2158. This
is distinct from the judge’s typical role at sentencing because it is not simply the application of a
sentence to the crime, but the alteration of the crime itself.
Trial is a distinctive process characterized by findings of fact made by a jury of the
accused’s peers, and a presumption of innocence unless the prosecution proves guilt beyond a
reasonable doubt. The sentencing shares none of these defining qualities, and it is unreasonable
to treat it as a continuation of trial when it is independent in practice. Even the Federal Rules of
Criminal Procedure have recognized the distinction with separate rules for trial and sentencing
delays. See Fed. R. Crim. Pro. 32(a); Fed. R. Crim Pro. 48(b). The Sixth Amendment’s Speedy
Trial protections extend only to the accused as he prepares for trial, the procedure used to
determine if the defendant is guilty.
C. An Expansive Reading of the Speedy Trial Clause Does Not Support Its Purposes of Protecting the Accused Person Preparing for Trial.
A precise reading of trial in the Sixth Amendment is not only supported by the text, and
practice but also the purposes of the Clause as outlined in Barker, 407 U.S. at 532. In Barker, the
defendant waited 20 months from the time he asserted his right to a speedy trial until trial. Id. at
518. This Court held that the defendant was not deprived of his right to a speedy trial when the
length of the delay, and the reasons attributed to the delay, which were only partially valid, were
weighed against the minimal prejudice to the defendant, and the defendant’s hesitance in
asserting his speedy trial claim. Id. at 534-35. The purpose of the Clause is to protect the
defendant’s interests. Id. at 532. The first of these interests is specifically aimed at preventing
impairment of the defense Id. at 532. Promptness is critical to mounting an effective defense
21
before evidence disappears and witnesses’ memories fade, but once the defendant’s status
changes from accused to convicted time is no longer of the essence for sentencing purposes.
United States v. Sanders, 452 F.3d 572, 580 (6th Cir. 2006). Precedent states that during
sentencing the judge’s determination must be solely based on facts determined by the jury at
trial, Apprendi v. New Jersey, 530 U.S. 466, 483 (2000), which eliminates any concern over
evidence loss at the sentencing stage as these factual findings have already been made, and are
now preserved on the trial record.
The second interest, concern for preventing anxiety and depression diminishes once the
defendant is convicted. Barker, 407 U.S. at 532. “Once guilt has been established in the first
instance the balance between the interests of the individual and those of society shift
proportionately.” Perez v. Arizona, 793 F.2d 249, 254 (10th Cir. 1986). Before trial, society has
an interest in protecting the innocent who at this point include the defendant awaiting trial, but a
finding of culpability shifts the source of anxiety from that cloud of “public accusation” to
“public guilt,” which rightly becomes the convicted person’s burden. Klopfer v. North Carolina,
386 U.S. 213, 222 (1967). While anxiety and depression do not necessarily diminish with a
conviction, the uncertainty and anticipation of awaiting one’s fate is eliminated, and any
additional stress caused by delays in the criminal proceedings can be remedied with a finding of
prejudice against the defendant; however, after a conviction these stressors are no longer the
responsibility of the State.
Lastly, the interest in “prevent[ing] oppressive pretrial incarceration” states a particular
type of incarceration, pretrial, which is irrelevant to this analysis of post-conviction delays.
Barker, 407 U.S. at 532. By explicitly stating its concern for pretrial protection, this Court did
22
not show any intention of extending the same protection to the convicted person awaiting
sentencing under the Sixth Amendment.
In conclusion, this Court’s reasoning compels it to not extend protection to the
sentencing phase as the three purposes of the Speedy Trial Clause are not supported.
D. The Due Process Clause Provides the Appropriate Avenue of Relief Because it Recognizes Both the Interests of the Convicted Person and the Public Through More Moderate Remedies.
With a change in a person’s status from that of accused to guilty after a jury verdict or
guilty plea, the convicted person’s available constitutional remedies also change. The only
recognized remedy for violations under the Sixth Amendment’s Speedy Trial Clause is dismissal
of the charges. See Strunk, 412 U.S. 434 (1973). In Strunk, the appellate court held defendant’s
right to speedy trial was violated, but determined that dismissal of the charges to be too extreme.
Id. at 435. This Court disagreed, and held dismissal, although serious, to be the proper remedy to
support the purposes of the speedy trial right. Id. at 439-41. The severity yet necessity of such
recourse has been recognized by this Court because, “it means that a defendant who may be
guilty of a serious crime will go free, without having to be tried. Such a remedy is more serious
than an exclusionary rule or reversal for a new trial, but it is the only possible remedy.” Barker,
407 U.S. at 522. The Third Circuit suggests that a remedy other than dismissal, such as a reduced
sentence, is proper when the defendant suffers prejudice from a post-conviction delay. Burkett v.
Fulcomer, 951 F.2d 1431, 1447 (3d Cir. 1991). This expansion of the bright-line rule stated in
cases such as Barker and Strunk undermines the purpose of the Speedy Trial Clause as it not
only blurs the line of clearly established precedent, but also improperly provides relief under the
Sixth Amendment for sentencing delays.
23
By dismissing the criminal charges due to post-conviction delays, the jury’s
determination of guilt beyond a reasonable doubt is exchanged for one judge’s subjective finding
of prejudice warranting a dismissal. A dismissal may eliminate the criminal defendant’s
repercussions under the law, but his or her responsibility for the underlying crime will endure.
This escape of the guilty from punishment is irreconcilable with the Speedy Trial Clause’s
protection of the accused from delays that could materially or psychologically impact their
ability to prepare a defense. See U.S. Const. amend. VI. “The Constitution does not require that
sentencing should be a game in which a wrong move by the judge means immunity for the
prisoner.” Bozza v. United States, 330 U.S. 160, 166-67 (1947). To prevent criminal defendants
from benefitting from procedural errors, and dodging an incarceration term, alternative remedies
should be sought through the Due Process Clause, which allows “repair [of] the prejudice”
instead of “discharg[ing] the penalty.” Burkett v. Cunningham, 826 F.2d 1208, 1222 (3d Cir.
1987). The principles of Burkett can successfully be applied to Mr. Walsh, who like other
criminal defendants waiting in jail for sentencing, may not receive certain services or benefits,
such as counseling or conditional release, that would have been available from prison. R. at 4.
This temporary delay in the activation of inmate benefits while inconvenient does not rise to an
unconscionable level requiring a discharge of sentence, and the increased time served in jail can
later be remedied by credit for days served.
In United States v. Lovasco, 431 U.S. 783, 796-97 (1977), this Court used a due process
analysis to determine that the defendant suffered no prejudice due to a pre-indictment delay. Like
the other stages of a criminal prosecution, the pre-indictment stage has a unique set of interests
such as the importance of conducting a thorough investigation, gathering evidence, and allowing
prosecutorial discretion. Id. at 793-94. These interests must be taken into account when
24
reviewing the defendant’s alleged prejudice, but the defense is not deprived of due process “even
if his defense might have been somewhat prejudiced by a lapse of time.” Id at 796. The Due
Process Clause applies to the pre-indictment proceedings before the accused’s Sixth Amendment
rights attach. Similarly, a due process analysis provides the proper remedy for the convicted
person during the sentencing phase for delays that were not attributed to the defendant or the
court’s diligent consideration of the case.
In conclusion, only dismissal provides a cure that matches the serious effects of prejudice
during the time between indictment and trial, and should therefore be treated as a bright-line rule,
but the flexible relief available under the Due Process Clause adequately addresses the distinct
purposes and interests before indictment, and after trial.
CONCLUSION
Based on the aforementioned arguments, Respondent respectfully requests that this Court
affirm the decision of the Supreme Court of Setonia for both issues.