Chapter 14 Assignments

CHAPTER 14 ASSIGNMENTS

ASSIGNMENT 1

In the following exercise, the assignment is to prepare a trial court brief. The assignment contains the assignment memo from the supervisory attorney that includes all the available facts of the case. Complete the brief based on these facts. When preparing the heading of each assignment, use your name for the “To” line, and put “Supervisory Attorney” after the “From.”

Following the assignment is a reference to the applicable enacted and case law. The first time you cite the opinion, use the citation format you are given for the opinion in the assignment.

For Example: Melia v. Dillon Companies, Inc., 18 Kan. App. 2d 5, 846 P.2d 257 (1993).

This is how you should cite this opinion the first time it is used in the memorandum. When you need to quote from an opinion in the memo, cite to the U.S. or regional reporter page cite only.

For Example: Melia, 846 P.2d at 258, or Id. at 258.

The page number where each page begins is printed in bold and preceded by two asterisks.

Martin Melia filed suit seeking compensatory and punitive damages against Dillon **259 Companies, Inc., (Dillon) upon allegations of false imprisonment and malicious prosecution. The jury returned a verdict in favor of Melia, awarding compensatory damage of $20,200.

Page 259 begins after **259.

Do not conduct additional research. Complete the assignment using the facts, enacted law, and case law contained in the assignment. For the purposes of the assignment, assume the cases have not been overturned or modified by subsequent court decisions. In most instances, a simple trial court brief, such as the one presented in this assignment, would not include a table of contents, table of authorities, or preliminary statement section. It would be composed of a question presented, statement of the case/facts, and argument sections. For the purposes of this assignment do not include a table of contents, table of authorities sections, or a preliminary statement. For the title page use the following format:

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

UNITED STATES OF America,

Plaintiff,

vs.Cr. 2002-122 RJ

DENISE CLEM,

Defendant.

UNITED STATES’ RESPONSE TO DEFENDANT’S

MOTION TO SUPPRESS

Memo:

To:(Your name)

From:Supervisory Attorney

Re: U. S. v. Clem, Cr. 2002-122

For several months, local police and Drug Enforcement Administration (DEA) agents conducted an investigation into alleged drug activity at the residence of the defendant, Denise Clem. Acting on information provided by an informant, DEA agents searched garbage bags at the defendant’s residence. The bags were located next to a tree approximately ten feet from the defendant’s house and twenty feet from the public sidewalk. The agents did not have a search warrant. Trash is usually collected by the garbage collectors at the sidewalk. The garbage collectors, who usually collect the trash, stated that on occasion they would collect bags located next to the tree if they were not running late. They stated that they would leave the bags if they were too busy to walk on the property. Based on the drugs located in the search, defendant was indicted on charges of possession of heroin.

The defendant has filed a motion to suppress the evidence seized from the garbage, claiming that it was seized in violation of the Fourth Amendment’s prohibition against illegal search and seizure. Please prepare a brief in opposition to the motion.

Statutory Law: The Fourth Amendment to the United States Constitution.

Case Law: California v. Greenwood, 486 U.S.35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988).

United States v. Hedrick, 922 F.2d 396 (CA 7 1991).

The cases are presented below.

ASSIGNMENT 2

This assignment is based on an appellate brief filed in the Colorado Court of Appeals. The Honorable John J. Mitchel prepared the brief while he was in private practice. There were several issues involved in the appeal, only one of which is included in this assignment. The assignment is to prepare an appellant brief on behalf of defendant Litchfield. Follow the format presented in the Appellate Court Briefs section of Chapter 14. The caption of the case is presented below. Prepare a separate Statement of the Case and Statement of the Facts. The issue involves the question of whether the defendant, Litchfield, was subjected to double-jeopardy when he was fined by the Colorado Department of Revenue for possession of marijuana and, thereafter, convicted and sentenced for possession of marijuana under a criminal statute.

Information necessary for preparing the Statement of the Case and Statement of the Facts is presented below. Note that the transcript pages (references to the trial court record) are referenced in parentheses by volume and line. When drafting the brief, include the references to the record in the brief.

Following the assignment is a reference to the applicable enacted and case law.

The first time you cite the opinion, use the citation format you are given for the opinion in the assignment.

For Example: Melia v. Dillon Companies, Inc., 18 Kan. App. 2d 5, 846 P.2d 257 (1993).

This is how you should cite this opinion the first time it is used in the memorandum. When you need to quote from an opinion in the memo, cite to the U.S. or regional reporter page cite only.

For Example: Melia, 846 P.2d at 258, or Id. at 258.

The page number where each page begins is printed in bold and preceded by two asterisks.

Page 259 begins after **259.

Following the assignment are the sections of the actual brief that address the double jeopardy issue. Do not refer to the brief until you complete the assignment. This will allow you to compare your brief with the one filed with the court.

Information for Statement of the Case and Statement of the Facts:

On May 13, 1991, shortly after noon (Vol. 4, p. 67, lines 13-14) Colorado State Patrolman Hoey observed a red Ford Thunderbird travelling north on U.S. Highway 50 in Montrose County, Colorado, about four to five miles north of the town of Montrose, Colorado. (Vol. 4, p. 40, lines 1-2). Hoey testified that the car "straddled the white painted marks on the highway." (Vol. 4, p. 41, lines 1-2) and "swerved...weaved back over to the shoulder, drove off on to the shoulder one time, and then...weaved back and forth in the lane." (Ibid., p.42, lines 4-6). Hoey followed the car for about "a mile and a half" (Ibid., lines 22-23), stopped the car for "weaving" (Ibid., p. 43, lines 1-2), and met the defendants. Defendant Brackett was the driver (Ibid., p. 43, lines 21-25) and defendant Litchfield was in the front passenger seat. (Ibid., p. 47, lines 15-22 & p. 48, lines 6-9). Hoey had determined at that point that he was going to issue a citation or a warning ticket for weaving. (Ibid., lines 10-14). Brackett gave Hoey a driver’s license and he produced a rental contract for a red Mustang, took the latter back, and gave Hoey a rental contract for the Thunderbird. Hoey also found that neither rental agreement produced by Brackett was signed and both documents said the vehicle could not be operated out of Arizona or Nevada. (Ibid., p. 45, lines 22-25 & p. 46, lines 1-3).

At trial, Hoey testified: "I called in to the State Patrol Office and requested a supervisor, due to the fact that the vehicle was a rental vehicle out of Arizona and the rental papers indicated that it was not to leave the state of Arizona or Nevada. (Vol. 5, Transcript of Hearing 3-22-93, p. 7, lines 14-17).

Sergeant John Mitchell arrived at Hoey's and the defendants’ location and Mitchell said to Hoey that since "the vehicle was supposed to be in Arizona or Nevada and it was in Colorado, that we would seize the vehicle, take it back to the State Patrol office, and contact the rental company to see what they wanted done." (Vol. 4, p. 47, lines 3-7). According to Hoey, the decision to seize was based on "...the fact that the vehicle was not supposed to be out of the state of Nevada or Arizona."

Mitchell said "he was going to search—go through the car and do an inventory pursuant to State Patrol policy for weapons." (Vol. 4, lines 21-24). Mitchell’s search proceeded from the passenger compartment, where he detected a musty smell that he could not identify, to the trunk, which he opened with the car keys, where he found several large packages of marijuana. (Vol. 4, p. 98, lines 1-8).

During the social conversation between Hoey, Brackett, and Litchfield, Mitchell said "You are under arrest. Down on the ground" (Ibid., p. 52, lines 18-24). Litchfield's fingerprints were found on one of the packages of marijuana. (Vol. 5, Transcript of Hearing 3-22-93, p. 14, lines 1-25, p. 15, lines 1-17).

On May 13, 1991 defendant George Litchfield was arrested and charged with Possession of More than Eight Ounces of Marijuana with Intent to Sell, 18-18-106(8) CRS (F4). Defendant filed a motion to suppress evidence obtained by the police from the unlawful seizure of his vehicle, his person, and search of the vehicle. (Vol. I, pp. 12-13). Defendant filed a motion to dismiss this action on double jeopardy grounds, alleging double punishment for the same conduct. (Vol. I, pp. 40-42). The trial court denied defendant's motions to suppress evidence and for dismissal. (Vol. I, pp. 66-72, Vol. 5, pp. 1-33). The defendant was tried and convicted on the charge of Possession of More than Eight Ounces of Marijuana with Intent to Sell, 18-18-106(8) CRS after trial to the court on March 22, 1993. On June 21, 1993 the defendant was sentenced to five years in the Department of Corrections.

On May 29, 1991, before conviction and sentence in the criminal case, the Colorado Department of Revenue penalized the defendant by imposing a tax of $240,000.00 on possession of marijuana at the rate of $100.00 per ounce, and, in addition, the department imposed a penalty of $2,400,000.00 for possession of marijuana, at a rate of ten times the amount of the tax, pursuant to section 39-28.7-108 CRS. (Vol. 1, pp. 40-42). The defendant timely filed an objection in the administrative proceeding, challenging the computation and the legality of the assessment by the Department of Revenue. (Vol. 5, Transcript of Hearing 3-10-92, page 3, lines 21-25, page 4, lines 1-25, page 5, lines 1-25, page 6, lines 1-14). The administrative proceeding has not been resolved.

Statutes and other Authorities

Amendment V, U.S. Constitution—“nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.”

Article II, Section 18, Constitution of Colorado—“nor shall any person be twice put in jeopardy for the same offense.”

Colorado Statute § 18-18-106(8). Provides penalties for possession of marijuana. This statute has been repealed and replaced by § 18-18-406. But for the purposes of this assignment use 18-18-106(8).

Colorado Statute § 39-28.7-108 A statute that allowed the Colorado Department of Revenue to tax on the possession of marihuana at a rate of $100.00 per ounce and impose a penalty at a rate of ten times the amount of the tax. This statute has been repealed. But for the purposes of this assignment assume it is still in effect.

Case Law:

In re: Kurth Ranch, 986 F.2d 1308 (CA9, 1993)—Presented below.

U.S. V. Halper, 490 U.S. 435, 104 L.Ed.2d 487 (1989)—Presented below.

Caption:

COURT OF APPEALS, STATE OF COLORADO

No. 93 CA 1278

______

THE PEOPLE OF THE STATE OF COLORADO, Plaintiff/Appellee

vs.

GEORGE R. LITCHFIELD, Defendant/Appellant

and,

JAMES BRACKETT, Defendant/Appellant

______

Appeal from the District Court of Montrose County

Honorable Jerry D. Lincoln, Judge

No.'s 91 CR 55 & 91 CR 56

______

APPELLANT LITCHFIELD’S BRIEF ON APPEAL

______

ASSIGNMENT 1 CASES

Supreme Court of the United States

CALIFORNIA, Petitioner

Billy GREENWOOD and Dyanne Van Houten.

486 U.S. 35, 108 S.Ct. 1625 (1988)

**36 WHITE, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BLACKMUN, STEVENS, O'CONNOR, and SCALIA, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. . KENNEDY, J., took no part in the consideration or decision of the case.

**37 Justice WHITE delivered the opinion of the Court.

[1] The issue here is whether the Fourth Amendment prohibits the warrantless search and seizure of garbage left for collection outside the curtilage of a home. We conclude, in accordance with the vast majority of lower courts that have addressed the issue, that it does not.

In early 1984, Investigator Jenny Stracner of the Laguna Beach Police Department received information indicating that respondent Greenwood might be engaged in narcotics trafficking. Stracner learned that a criminal suspect had informed a federal drug enforcement agent in February 1984 that a truck filled with illegal drugs was en route to the Laguna Beach address at which Greenwood resided. In addition, a neighbor complained of heavy vehicular traffic late at night in front of Greenwood's singlefamily home. The neighbor reported that the vehicles remained at Greenwood's house for only a few minutes.

Stracner sought to investigate this information by conducting a surveillance of Greenwood's home. She observed several vehicles make brief stops at the house during the latenight and early morning hours, and she followed a truck from the house to a residence that had previously been under investigation as a narcoticstrafficking location.

On April 6, 1984, Stracner asked the neighborhood's regular trash collector to pick up the plastic garbage bags that Greenwood had left on the curb in front of his house and to turn the bags over to her without mixing their contents with garbage from other houses. The trash collector cleaned his truck bin of other refuse, collected the garbage bags from the street in front of Greenwood's house, and turned the bags over to Stracner. The officer searched through the rubbish **38 and found items indicative of narcotics use. She recited the information that she had gleaned from the trash search in an affidavit in support of a warrant to search Greenwood's home.

Police officers encountered both respondents at the house later that day when they arrived to execute the warrant. The police discovered quantities of cocaine and hashish during their search of the house. Respondents were arrested on felony narcotics charges. They subsequently posted bail.

The police continued to receive reports of many latenight visitors to the Greenwood house. On May 4, Investigator Robert Rahaeuser obtained Greenwood's garbage from the regular trash collector in the same manner as had Stracner. The garbage again contained evidence of narcotics use.

Rahaeuser secured another search warrant for Greenwood's home based on the information from the second trash search. The police found more narcotics and evidence of narcotics trafficking when they executed the warrant. Greenwood was again arrested.

The Superior Court dismissed the charges against respondents on the authority of People v. Krivda, 5 Cal.3d 357, 96 Cal.Rptr. 62, 486 P.2d 1262 (1971), which held that warrantless trash searches violate the Fourth Amendment and the California Constitution. The court found that the police would not have had probable cause to search the Greenwood home without the evidence obtained from the trash searches.

The Court of Appeal affirmed. 182 Cal.App.3d 729, 227 Cal.Rptr. 539 (1986). The court noted at the outset that the fruits of warrantless trash searches could no longer be suppressed if Krivda were based only on the California Constitution, because since 1982 the State has barred the suppression of evidence seized in violation of California law but not federal law. See Cal. Const., Art. I, § 28(d); In re Lance W., 37 Cal.3d 873, 210 Cal.Rptr. 631, 694 P.2d 744 (1985). But Krivda, a decision binding on the Court of Appeal, also held that the fruits of warrantless trash searches were to be excluded under federal **39 law. Hence, the Superior Court was correct in dismissing the charges against respondents. 182 Cal.App.3d, at 735, 227 Cal.Rptr. at 542. [FN1]

FN1. The Court of Appeal also held that respondent Van Houten had standing to seek the suppression of evidence discovered during the April 4 search of Greenwood's home. 182 Cal.App.3d, at 735, 227 Cal.Rptr., at 542543.

The California Supreme Court denied the State's petition for review of the Court of Appeal's decision. We granted certiorari, 483 U.S. 1019, 107 S.Ct. 3260, 97 L.Ed.2d 760 and now reverse.

[2] The warrantless search and seizure of the garbage bags left at the curb outside the Greenwood house would violate the Fourth Amendment only if respondents manifested a subjective expectation of privacy in their garbage that society accepts as objectively reasonable. O'Connor v. Ortega, 480 U.S. 709, 715, 107 S.Ct. 1492, 1496, 94 L.Ed.2d 714 (1987); California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 1811, 90 L.Ed.2d 210 (1986); Oliver v. United States, 466 U.S. 170, 177, 104 S.Ct. 1735, 1740, 80 L.Ed.2d 214 (1984); Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). Respondents do not disagree with this standard.

They assert, however, that they had, and exhibited, an expectation of privacy with respect to the trash that was searched by the police: The trash, which was placed on the street for collection at a fixed time, was contained in opaque plastic bags, which the garbage collector was expected to pick up, mingle with the trash of others, and deposit at the garbage dump. The trash was only temporarily on the street, and there was little likelihood that it would be inspected by anyone.

[3] It may well be that respondents did not expect that the contents of their garbage bags would become known to the police or other members of the public. An expectation of privacy does not give rise to Fourth Amendment protection, **40 however, unless society is prepared to accept that expectation as objectively reasonable.

[4][5] Here, we conclude that respondents exposed their garbage to the public sufficiently to defeat their claim to Fourth Amendment protection. It is common knowledge that plastic garbage bags left on or at the side of a public street are readily accessible to animals, [FN2] children, scavengers, FN3] snoops, [FN4] and other members of the public. See Krivda, supra, 5 Cal.3d, at 367, 96 Cal.Rptr., at 69, 486 P.2d, at 1269. Moreover, respondents placed their refuse at the curb for the express purpose of conveying it to a third party, the trash collector, who might himself have sorted through respondents' trash or permitted others, such as the police, to do so. Accordingly, having deposited their garbage "in an area particularly suited for **41 public inspection and, in a manner of speaking, public consumption, for the express purpose of having strangers take it," United States v. Reicherter, 647 F.2d 397, 399 (CA3 1981), respondents could have had no reasonable expectation of privacy in the inculpatory items that they discarded.