QUESTIONS PRESENTED

I.) Whether or not Troy Baker’s Facebook posts concerning Carlos Campbell amount to a true threat under 18 U.S.C. § 875(c) if the defendant’s subjective intent to harm is or is not required to be proven?

II.) Whether or not the search of Troy Baker’s home was constitutional (abiding by the Fourth Amendment) if police officers’ motives for removal in a consent search is or is not considered, and whether the defendant must or must not be at the door (most literally) for his objection to be valid?

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TABLE OF CONTENTSQuestions Presented……………………………………………………………………………………………….. 1

Table of Contents …………………………………………………………………………………………………. 2

Table of Authorities……………………………………………………………............................………………. 3

Opinion Below……………………………………………………………………........................…………….… 4

Statutes Involved………………………………………………………………….........................……….……… 6

Finding of Facts………………..……………………………………………………....................……….…….... 7

Argument………………………………………………………………………….......................……….………. 10

I. Whether or not Troy Baker’s Facebook posts concerning Carlos Campbell amount to a true threat under18 U.S.C. § 875(c) if the defendant’s subjective intent to harm is or is not required to be proven, or the Speech is protected under the First Amendment?..........…………........................……….……....….... ?

A. The Subjective Test is the inappropriate standard to apply because it restrains the Government from regulating statements that inflict fear on others.……………………….... ?

B. When the Objective Test is applied, it takes into account all factual context; being able to prove if a person truly committed a true threat………….……………………………....... ?

1. The Plain Words in Baker’s posts were threatening statements towards Campbell….. ?

2. Looking at the posts in Context helps determine the gravity of the statements made... ?

3. The Conditional factor of the statements do not undermine the effect of the threat… ?

4. Although Baker excluded Carlos from seeing the posts, the threats do not need to

be communicated at the target to be found as being true threats…………………….. ?

5. The threats made by Baker were taken seriously by four reasonable members of

the public who viewed the post. ……………………………………………………….... ?

6. Baker’s History of Aggression shows that he has a propensity for violence………….... ?

C. Even if the Subjective Test is applied, Baker did have the intent to inflict fear on Campbell………………………………………………………………………………………… ?

II. Whether or not the search of Troy Baker’s home comply with the Fourth Amendment if police officers’ motives for removal in a consent search is or is not considered, and whether the defendant must or must not be at the door (most literally) for his objection to be valid?........................... ?

A. Baker’s removal was reasonable because he voluntarily left the property with the office… ?

B. Baker was not at the door of the home at the time of his objection to the search, making

his objection to the consent void……………………………………………………….............. ?

C. Social Expectations say that once the objecting party has left the premises, officers

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are allowed to go in and get consent for the search of a home…………………..................... ?

D. We must allow officers to perform to the best of their ability in obtaining consent

for a warrantless search in order to abide by Public Policy……………………….............. ?

Conclusion…………………………………………………………………………………………....................... ?

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TABLE OF AUTHORITIES

ISSUE ONE

UNITED STATES SUPREME COURT

● Virginia v. Black, 538 U.S. 343 (2003)● Watts v. United States, 394 U.S. 705 (1969)

UNITED STATES COURT OF APPEALS

● Doe v. Pulaski Cnty. Special Sch. Dist., 306 F.3d 616 (8th Cir. 2002) ● United States v. Bagdasarian, 652 F.3d 1113 (9th Cir. 2011) ● United States v. Bellrichard, 994 F.2d 1318 (8th Cir. 1993) ● United States v. Elonis, 730 F.3d 321 (3d Cir. 2013) ● United States v. Jeffries, 692 F.3d 473 (6th Cir. 2012) ● United States v. Lockhart, 382 F.3d 447 (4th Cir. 2004) ● United States v. Parr, 545 F.3d 491 (7th Cir. 2008) ● United States v. Sutcliffe, 505 F.3d 944 (9th Cir. 2007)

ISSUE TWO

UNITED STATES SUPREME COURT

● Fernandez v. California,134 S. Ct. 1126 (2014). ● Georgia v. Randolph, 547 U.S. 103 (2006) ● United States v. Matlock, 415 U.S. 164 (1974)

UNITED STATES DISTRICT COURT OF APPEALS

● United States v. Acosta, 807 F. Supp. 2d 1154 (N.D. Ga. 2011) ● United States v. Henderson, 536 F.3d 776 (7th Cir. 2008) ● United States v. Hicks, 539 F.3d 566 (7th Cir. 2008) ● United States v. Hudspeth, 518 F.3d 954 (8th Cir. 2008)

STATE COURT OF APPEALS

● State v. Coles, 218 N.J. 322 (2014)

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OPINIONS BELOW

UNITED STATES COURT OF APPEALS

FOR THE FOURTEENTH CIRCUIT

MAJORITY OPINIONIssue I

Although the First Amendment of the Constitution protects freedom of speech, it is not absolute if the speech "disrupts order and

morality and has little value to public discourse." This includes true threats, which need to be regulated to protect citizens from the

fear a threat can inflict on that person. The majority opinion has found that using the Subjective Test (proving intent to harm from the

speaker) to convict someone of committing a true threat would not protect those individuals who felt fear from the statements of the

speaker. Someone has to be held liable for the fear caused by the statements. Even if the Subjective Test were applied, Baker would

still be guilty of a true threat because the 9mm he possessed proves subjective intent to threaten (according to United States v.

Sutcliffe possession of a weapon indicates subjective intent to threaten). Because the Subjective Test is the unreasonable test to use,

the proper test is the Objective Test. History of violence shows that Baker has a history of aggression, his statements in themselves

were threatening, the reaction of the audience was serious, and it has been found that the contingency of his threat do not undermine

the meaning behind the words. By taking all of these reasons in account, Baker is found in the majority opinion to have committed a

true threat.

Issue II

To find whether the entrance and search of Baker's residence was lawful we look to see if there were objectively reasonable

grounds for removal of the defendant, if the defendant was at the door at the time of the objection, social expectation, and public

policy. When we look at the removal, Baker was removed from the premises lawfully because he agreed to go with the officers. Next,

Baker's objection to the search was not valid because he was no longer on the property. Third, social expectations dictate that a person

should enter the home of another if there is someone standing at the door prohibiting them from coming in (officers should follow by

this as they are just like guests in another's home). But once the objecting party has left the home, the officers are welcome to ask

another party for consent to search the home. Lastly, public policy shows that we must allow Police Officers to do their job thoroughly

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and allow the party consenting to the search to rid of "any suspicion raised by sharing quarters with a criminal." With all this in mind,

the denial of the motion to suppress the evidence is affirmed.

UNITED STATES COURT OF APPEALS

FOR THE FOURTEENTH CIRCUIT

DISSENTING OPINIONIssue I

Virginia v. Black states that there has to be an intent from the speaker to communicate harm to another individual (Subjective Test

must be applied). Although Baker was in possession of a 9mm handgun, in his posts he never said exactly that he himself was going to

harm Carlos; therefore Baker didn't intent to cause threat in Campbell. When the Objective Test is applied, the five elements also

show that Baker did not commit a true threat. The reaction of the audience in the majority dissent failed to look at the people that

didn't take Baker's posts seriously; they laughed and took it lightly. The conditional statement in the posts cannot be taken seriously

because Baker did not make an attempt towards getting a grenade or doing what he said he was going to do. In direct communication

we see that Baker purposely blocked Campbell from seeing these posts and he was just venting on social media. When we take a look

at history of violence, we see that Baker was never violent towards Campbell and any reasonable observer wouldn't have known about

the 9mm handgun and so this cannot be considered as part of history of violence. We must also take into count that Baker was never

violent towards humans; he did small/meaningless things. Lastly, looking at the message itself we see that Baker was just a teenage

boy ranting on social media writing statements that were not serious. Because of this, the dissent finds Baker not guilty of committing

a true threat.

Issue II

The dissenting opinion finds the search of Baker's home was an unlawful one under the Fourth Amendment. In United States v.

Hicks found that a search is invalid of the officers remove the potential objecting party with the intent to avoid the objection to the

search. The record states that Officer Sawyer and Officer Austin "hatched" a plan to remove Baker from the premises in order to

obtain consent to search the home; making the means for Baker’s removal improper. Next, at the time Baker’s grandma gave consent

to the search, Baker was still in the nearby area; taking the ruling that the objecting party "must be at the door" is absurd. The court in

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Hudspeth states that, a warrantless search must not be "dependent upon a tape measure." Looking at Social Expectations, the dissent

disagrees with the rightful consent to search after the objecting party leaves the premises because no one would enter a home knowing

that someone that lives there doesn't want them in the house. Lastly, Public Policy shows that the officers acted unlawfully by going

around the law to try to obtain consent for a search where there was no real threat at the moment. With all of this in mind, the dissent

would have granted the motion to suppress the evidence.

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STATUES INVOLVED

ISSUE I

United States Constitution

First Amendment:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

18 U.S.C. § 875(c)

“Transmitting interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another”

ISSUE II

United States Constitution

Fourth Amendment:

“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.”

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FINDING OF THE FACTS

    Troy Baker (the petitioner) is seventeen years old that attends Fordham High School as a junior and is a

member of the high school's basketball team. This is the first incident Baker has gotten himself into; having no

record in school or in the police station.

    Baker worked at Bob's Burger Castle after school and on the weekends with other members of his basketball

team, one of them being Carlos Campbell. According to Campbell (stated in court), he and Baker had been

close friends since he moved into Fordham City and attended the same middle school.

    The Fordham city basketball team faced their long-time rivals (South Ram High School) at the end of their

season for the finals. At the last quarter with five seconds left on the clock, Baker was at the free throw line and

was about to shoot his last foul shot. As soon as Baker was about to shoot, a member of the opposing team

yelled out "Choke!” causing Baker to missed the shot, leaving the other team to win by scoring in the last few

seconds.

    One day in the summer (August 10, 2014) Baker and Campbell were working the same shift at Bob's Burger

Castle in the drive-through window. That day Troy was putting together the orders and Campbell was in charge

of handling the orders (taking them and giving the orders to the customers). Campbell noticed members of

South Ram's basketball team (including the one who caused Baker to miss the shot in the finals) and told Baker

right after.

    To get his revenge Baker decided to spit on all of the basketball players' burgers.

    The owner of the restaurant had cameras set up to look over the workers and Baker was caught spitting on the

burgers. The general manager of the restaurant (Carla Ortiz) called Campbell into her office later that day to ask

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about the incident. She used Campbell to confess to what Baker did to prevent any of the workers from knowing

she had secret surveillance cameras, and had his confession as the reasoning for firing Baker on the next day.

Leaving the restaurant, Baker punched a hole in a cardboard cutout of the restaurant mascot (Bob). Baker went

home and made two posts on Facebook. At 7:01 pm on August 11, 2014 he wrote, "Snitches get stitches and

end up in ditches. Carlos is going to get what’s coming to him...Seeing red right now!!!" Then three hours later

(at 10:23 pm) he posted, "If I had a grenade...I could do some real damage. You think someone is your friend

and then get betrayed! If that kid were smart he would sleep with one eye open ...He needs to go before he does

this again. 9mm shot to the head? Suffocating under an avalanche of basketballs? I would pay to see that—front

row seats + popcorn. Yeah, I’d like to see that...Watch out Mr. Campbell!! I would be careful leaving practice

on Thursday..." Before making the post he chose to share both posts to everyone on his friends list except for

Campbell through custom privacy settings (having a total of 608 friends, 72 of which were mutual friends with

Campbell). The first post received four likes and no comments, the second received eleven likes and a many

comments. One girl wrote, “Troy, U have a crazy imagination!” Another classmate commented, “Death by

basketballs??? What a way to go...LOL!”

    Gabriella Castillo (a former girlfriend if Baker's) saw these posts and became alarmed (testifying on Baker's

history of aggression). She knew that he like to shoot at squirrels in his backyard with a pellet gun and he would

hide and scare the mail man with a bat. She contacted a teammate of Baker's (Sam Brewer) and went down to

the police station.

    Officer Sawyer and Officer Austin read the posts and saw the posts to be alarming as well.

     Knowing that a warrant to search the house or arrest wouldn't be obtainable, the officers decided to go to the

house and ask questions to someone in his residence (performing a "knock-and-talk"). The officers knew that if

they asked to search the home Baker could deny the consent but if they got him off of the premises (knowing

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the case Fernandez v. California) then his objection would be invalid and they could gain consent from his

grandmother.

    The officers came up with a plan to ask Baker to come down to the police station for questioning while the

other officer gained consent from his grandmother to search the home.

    The following day the officers went the Baker's home and spoke to Baker and his grandmother. Baker was

confused on why the officers were there to ask him questions but told him they would explain at the police

station. Baker's grandmother persuaded Baker to go down to the police station with the officers. Officer Austin

then took Baker into the police car.

    After Baker was on the sidewalk, Officer Sawyer asked for the grandmother's permission to search the home.

Baker being in the back on the cop car (that doesn't open from the back) saw his grandmother giving consent to

the search as soon as Officer Austin was turning the car on. He shouted, “NO! No! You can’t go in there! Don’t

let them into our house!” The window was half-way open but it's not clear if Officer Sawyer or his grandmother

heard him but they didn't reply. Baker tried to get out of the car but the doors wouldn't open. Officer Austin

ignored Baker and his statements then drove away. During the search Officer Sawyer found an unregistered

9mm handgun under Baker's bed. In court Campbell testified that he was unaware that Baker owned a gun.

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ARGUMENT

Issue IWhether or not Troy Baker’s Facebook posts concerning Carlos Campbell amount to a true threat under18 U.S.C. § 875(c) if the defendant’s subjective intent to harm is or is not required to be proven, or the Speech is protected under the First Amendment?

The First Amendment says, “Congress shall make no law…abridging the freedom of speech.” This

Amendment prohibits the government from restricting what persons may see, read, speak or hear. However,

Freedom of Speech doesn’t protect all types of expressions, such as, obscenity, defamation, fighting words, and

true threats. A true threat is a statement that a reasonable recipient would have interpreted as a serious

expression of intent to harm or cause injury to another. True threats protect[s] individuals from the fear of

violence and from the disruption that fear engenders (the court in Black). To determine if something is

considered a true threat courts have used the Objective and Subjective Test. There has been confusion through

rulings of various courts on what test should be used to convict someone of committing a true threat. To find

someone guilty of a true threat we must find sufficient evidence that the speech falls under certain standards.

The Objective Test views the relevant facts to determine if the receiver of the alleged threat could reasonably

believe that the speaker would carry out the threat (having fear instilled on that person). The elements that

would lead to passing this test are: (1) the reaction of those who heard the alleged threat; (2) whether the threat

was conditional; (3) whether the person who made the alleged threat communicated it directly to the object of

the threat; (4) whether the speaker had a history of making threats against the person purportedly threatened;

and (5) whether the recipient had a reason to believe that the speaker had a propensity to engage in violence. On

the other hand, the Subjective Test looks to see if the speaker of the alleged threat intended for the statement to

be understood as a threat. The speaker must have knowingly and willingly communicated the threat to instill

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fear of harm or cause of injury. We find that the test to be used in the case against Baker should only be the

objective test.

A. The Subjective Test is the inappropriate standard to apply because it restrains the Government from regulating statements that inflict fear on others.

With the uncertainty of what test should be applied to determine whether a statement could be seen as a true

threat, we have found that the subjective test is nonessential by the opinions given in previous court decisions.

In this court the objective test was solely used in Watts v. United States. You were able to look at the context in

which the message was stated, the statement’s conditional factor, reaction of the audience, the history of

violence of the speaker, and the direct/indirect communication of the statement to determine if the statement

said was a true threat. This court also ruled in Virginia v. Black, and said that in order to determine if a

statement was a true threat that there is a need to prove intent from the speaker to cause a threat. Many courts

have interpreted this as the Supreme Court saying that the test that should be used is the subjective test, but that

is not the case. In U.S. v. Elonis the court stated, “…we find that Black does not alter our precedent. We agree

with the Fourth Circuit that Black does not clearly overturn the objective test the majority of circuits applied to

§ 875(c). Black does not say that the true threats exception requires a subjective intent to threaten. Furthermore,

our standard does require a finding of intent to communicate. The jury had to find Elonis “knowingly and

willfully” transmitted a “communication containing ... [a] threat to injure the person of another.” 18 U.S.C. §

875(c). A threat is made “knowingly” as when it is “made intentionally and not [as] the result of mistake,

coercion or duress.”A threat is made willfully when “a reasonable person would foresee that the statement

would be interpreted by those to whom the maker communicates the statement as a serious expression of an

intention to inflict bodily harm.” This objective intent standard protects non-threatening speech while

addressing the harm caused by true threats.” In this quote the court made it clear that Black does not make the

subjective test the absolute requisite for determining if a statement is a true threat. The need for intent is

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satisfied by proving the speaker knew what he was saying (a reasonable person would have seen it as a threat)

and decided to communicate it anyway; factors that are fulfilled in the objective test through reaction of the

audience and direct/indirect communication. U.S. v. Bellrichard cites Manning saying, “recognize in their

terminology that it is the making of the threat that is prohibited without regard to the maker's subjective

intention to carry out the threat. The threat alone is disruptive of the recipient's sense of personal safety and

well-being and is the true gravamen of the offense.” If the statement can be seen to cause fear upon a person, we

are able to call it a true threat regardless of any subjective intent to carry out that threat. U.S. v. Jeffries

supported the sole use of the objective test by saying, “The defendant's subjective intent in making the

communication is also irrelevant. Unlike most criminal statutes, the government does not have to prove

defendant's subjective intent. Specifically, the government does not have to prove that defendant subjectively

intended for Chancellor Moyers to understand the communication as a threat, nor does the government have to

prove that the defendant intended to carry out the threat.” This says that someone can be proven to have

committed a true threat without the government having to show that the defendant intended for the receiver to

see the communication as a threat. If we are able to take only the elements of the objective test and determine if

something is a true threat, we can take preemptive strikes to prevent the threat to be carried out. If we use the

subjective test, it would force us to wait until the person takes a step towards the action in the threat to stop

them. It would be crazy to think that we should wait and see like sitting ducks if the person truly meant the

threat; already instilling fear in us (has already harmed us). Therefore the Subjective Test should not apply and

the test to be applied is the Objective Test.

B. When the Objective Test is applied, it takes into account all factual context; being able to prove if a person truly committed a true threat.

The Objective Test should be applied to determine if a true threat has been committed as it looks at: (1) the

reaction of those who heard the alleged threat; (2) whether the threat was conditional; (3) whether the person

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who made the alleged threat communicated it directly to the object of the threat; (4) whether the speaker had a

history of making threats against the person purportedly threatened; and (5) whether the recipient had a reason

to believe that the speaker had a propensity to engage in violence.

1. The Plain Words in Baker’s posts were threatening statements towards Campbell. On August 11, 2014 Troy Baker in two Facebook posts wrote "Snitches get stitches and end up in ditches.

Carlos is going to get what’s coming to him…Seeing red right now!" and "If I had a grenade…I could do some

real damage. You think someone is your friend and then get betrayed! If that kid were smart he would sleep

with one eye open …He needs to go before he does this again. 9mm shot to the head? Suffocating under an

avalanche of basketballs? I would pay to see that—front row seats + popcorn. Yeah, I’d like to see that…Watch

out Mr. Campbell!! I would be careful leaving practice on Thursday." Looking at these statements in their plain

meaning, Baker is threatening Carlos Campbell. In the first post he references snitches (informers) who

according to him get hurt and can end up dead. Then in the second post Baker goes more in depth into exactly

what he's talking about. He talks about harming Carlos with a grenade, an avalanche of basketballs, and is even

specific talking about a 9mm handgun being shot at Campbell. He is clear when he says that his friend betrayed

him and that Carlos should watch out, specifically after their basketball practice on Thursday. The plain words

in Baker’s posts were threatening statements towards Campbell, but to truly understand the atrociousness of

these statements we must look at them in context.

2. Looking at the posts in Context helps determine the gravity of the statements made. This court states in Watts (and is later cited in Lockhart) that, “To determine whether this threat was a “true

threat,” the Court considered the context in which the threat was made” Making this a step in proving the

defendant of committing a true threat under the Objective Test. U.S. v. Parr furthers the meaning of this quote

saying that, “... the jury needed to make inferences from the background and context about his demeanor at the

time he made the statements —to decide, under the circumstances, whether he conveyed the impression that he

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was serious or joking.“ Meaning that context is used to determine if the statement made was serious or joking/

pertaining to no real meaning. An excellent example of context being used in a court case is Watts, where a man

was speaking in a political rally and stated that if he were drafted into the army he would have L.B.J. (the

President at the time) pointed in his sights. Through the context of the statement, being made in a political rally,

the man was found to not have said his statement with any real meaning but political hyperbole. In our case, the

defendant made the posts on Facebook and made it possible to be seen to 607 of his friends. The platform by

which the defendant expressed his opinion doesn’t undermine the message through its literal meaning as it is

said by the court of Bagdasarian, -”When our law punishes words, we must examine the surrounding

circumstances to discern the significance of those words' utterance, but must not distort or embellish their plain

meaning so that the law may reach them.” In his statements the defendant clearly expressed his anger towards

Campbell and in one saying, “9mm shot to the head?...Yeah, I’d like to see that…” Someone who is known for

hiding and scaring the mailman with a bat, shooting squirrels with a pellet gun, is shown to hold a grudge and

seek revenge (proven by spitting in the burgers of the opposing basketball team) writing these posts after being

fired definitely proves that the statements were true under the totality of the circumstances.

3.) The Conditional factors of the statements do not undermine the effect of the threat. The next element that we look at in proving the statements as a true threat under the Objective Test is

whether the threat was conditional. In Howell (cited by Bellrichard) the court says that a statement can still be

classified as a true threat even if the threat is conditional. They said, “A threat may be considered a “true threat”

even if it is premised on a contingency.” For example, in Bellrichard the defendant sent a postcard to a

government official stating that if they didn’t start opposing the incinerator that was being debated to be brought

to the town, then the official would be thrown in the incinerator. The condition in the defendant’s statements in

our case is his ability to get a grenade, a 9mm handgun, and an avalanche of basketballs to fall on the victim’s

head. But as Mitchell (cited in Bellrichard) states, “That correspondence containing threatening language is 16

phrased in outrageous terms does not make the correspondence any less threatening,” and a statement restated

by Pulaski (originally by Bellrichard), “However, a threat does not need to be logical or based in reality before

the government may punish someone for making it,” these show that the reliance on the defendant getting a

hold of these things doesn’t undermine the threat, still to be taken seriously to its fullest extent. This court also

states in Virginia v. Black (and is restated in Parr) that, “the government is not required to prove that the

defendant in a threat case intended or was able to carry out his threats.” Meaning that it doesn’t matter whether

the defendant can get any of the items he said in his threat no matter how outrages they may be because the

statement will still carry value (the defendant’s statements to be taken as a serious possibility by a recipient).

4.) Although Baker excluded Carlos from seeing the posts, the threats do not need to be communicated at the target to be found as being true threats.

Another element used to prove the defendant’s statements as a true threat under the Objective Test is the

communicant of the threat to the victim (direct/indirect). The defendant goes out of his way to make sure that

Campbell is unable to see the quote but that doesn’t diminish the value of the threat. Jeffries states that the law,

“…does not require a threat to be communicated to its target. It prohibits a “communication containing any

threat” regardless of whether the threat reaches the target.” The defendant making the threat to be seen to the

other 607 Facebook friends and 72 mutual friends of the victim suffices this and is reinforced with the fact that

the victim found out about the threat regardless. Pulaski cites two quotes from Crews that support this idea as

well, they say: “threatening communication need only be conveyed to a third party to rise to the level of a true

threat,”and “However, the speaker must have intentionally or knowingly communicated the statement in

question to someone before he or she may be punished or disciplined for it. Id. The requirement is satisfied if

the speaker communicates the statement to the object of the purported threat or to a third party. “The defendant

here knowingly and willingly sent the threat statements to the Facebook friends, serving as the third parties.

Pulaski cites Bellrichard in a quote that says, “The fact that J.M. did not personally deliver the letter to K.G. did

17

not dispel its threatening nature. Although J.M. did not personally hand the letter to K.G., J.M. titled the letter

“F____ that bitch [K.G.],” and he wrote the letter as though he was speaking directly to her. As a consequence,

the letter was extremely intimate and personal, and the violence described in it was directed unequivocally -

(recognizing that correspondence directed to one's home or work is more likely to be perceived as a threat than

a general statement delivered at a public gathering).” This can be applied to our case in that the defendant didn’t

send the threats directly to Campbell and the defendant wrote in parts as if he were talking to Campbell (ex.

“Watch out Mr. Campbell!!I would be careful leaving practice on Thursday…”). Because of this, it makes the

statements personal and with an unequivocal intent to communicate the threat to Campbell.

5. The threats made by Baker were taken seriously by four reasonable members of

the public who viewed the post.

The reaction of the audience is the following factor in determining whether or not something is a true threat

under the Objective Test. In our case, after the defended posted his statements, the first status got four likes and

no comments, and the second status got eleven likes and several comments. The likes do not necessarily mean

that any one of the people who saw the posts agreed with the defendant. Gabriella Castillo (a person that had a

close relationship with the defendant) saw the post and was alarmed because of her knowledge about him. She

saw the posts as a serious problem, went to the police and they agreed with her. Even though the police officers

have to take any threat seriously until they can prove it’s not, under all the circumstances they reasonably

thought that the defendant did express a true threat (with concern from someone that knew the defendant closer

than any of the other people that didn’t take the threat seriously on Facebook). Many times, threats that are

serious can be overlooked and as Bagdasarian explains, “Certainly as of fall 2008, our country's collective

experience with internet threats and postings that presaged tragic events made it all the more likely that a

reasonable person would foresee that even anonymous internet postings would be perceived as threats. The

18

country had witnessed the 1999 Columbine High School shootings by Dylan Klebold and Eric Harris, who had

posted death threats on his website, along with discussions of bomb making and killing students and teachers,”

threats are now to be taken seriously especially in the light of horrific events across the United States. This court

in Watts said, “...expressly made conditional upon an event...which the petitioner vowed would never occur,

and that both petitioner and the crowd laughed after the statement was made.” No one in this case took the

statement seriously; our case is different because the defendant made his threat with the accessibility of the

person the threat was directed to unlike Watts. The defendant had easy access to the victim (specifically

referencing to his accessibility to Campbell on Thursday) while in Watts, there was no way that he could get

access to the President and the people being at the political rally saw this to be a statement that wasn’t serious

(shown by their laughing). Even though the serious reaction in this case was minimal, it doesn’t take away the

value of the threat and the accountability of those who did take the threat seriously.

6. Baker’s History of Aggression shows that he has a propensity for violence.

History of Aggression is the last element that must be proven in order to find the defendant’s statements to

be a true threat under the Objective Test. The court in Parr says, “…when a person says he plans to blow up a

building, he will naturally be taken more seriously if he has a history of building bombs and supporting

terrorism. The upshot is that in a threat case, information about the defendant's background is at least potentially

relevant to gauging whether his statements qualify as a true threat. That isn't to say that all background

information is admissible; the probative value must still be weighed against the potential for prejudice, but

related background evidence is relevant and potentially admissible.” This quote shows that a tie to having a

propensity of violence can be used to determine how a person intended their statements to be, if they have a

history of things along the lines of the threat (that it wouldn’t be something unusual). In Pulaski the court said

that, “ J.M.'s previous portrayal of himself as a tough guy with a propensity for aggression made his threat more

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credible and contributed to K.G.'s reaction.” The defendant of this case was known to hide with a bat to scare

the mail man, shoot at squirrels with a pellet gun (known to be a sign of serial killer in early stages), is known to

hold grudges and seek revenge for them. The defendant had a history of aggression through all of those

examples and they together aren’t far off from him wanting to shoot or at least inflict fear on Campbell because

of the grudge he is holding from getting fired.

C. Even if the Subjective Test is applied, Baker did have the intent to inflict fear on Campbell. Even if this court decides to use the Subjective Test in determining if a true threat exists, we also find the

defendant to be guilty of this. The defendant wrote and uploaded a post clearly stating that the victim (Carlos)

“is going to get what’s coming to him…”In the following post three hours later (still enraged with anger,

seemingly worse) he says that the victim should sleep with his eyes open, and speaks as almost he were

speaking directly to the victim, saying that they should look out on Thursday. Even though the defendant went

out of his way to prohibit the victim from seeing the post, with 72 mutual friends the defendant easily could

have known that the message would have gotten all the way to the victim (and after all it did) , as we see in

Pulaski. A reasonable person could see that the defendant wanted (intended) to inflict fear by the victim reading

this with clear warnings of harm coming to them (specifically referencing to Thursday). The statements have an

unequivocal intent to cause fear of harm on Campbell proving under the Subjective Test to be a true threat.

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Issue II

Whether or not the search of Troy Baker’s home comply with the Fourth Amendment if police officers’ motives for removal in a consent search is or is not considered, and whether the defendant must or must not be at the door (most literally) for his objection to be valid?

The Fourth Amendment states that, “The right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated…” This Amendment was created to

protect the rights of people from being searched and seized by the government unreasonably. The exception to

this is if there is a warrant issued against the person, authorizing the search through probable cause. The search

of property, without warrant and without probable cause , but with proper consent voluntarily given, is valid

under the Fourth Amendment. In U.S. v. Matlock this court extended this ability of the government by saying,

“When the prosecution seeks to justify a warrantless search by proof of voluntary consent it is not limited to

proof that consent was given by the defendant, but may show that permission to search was obtained from a

third party who possessed common authority over or other sufficient relationship to the premises or effects

sought to be inspected.” This allows consent in a warrantless search to be given by a third party (one with

common authority over the premises). The exception to third party consent was drawn in Georgia v. Randolph.

This court said that, “a physically present inhabitant's express refusal of consent to a police search is dispositive

as to him, regardless of the consent of a fellow occupant.” This meaning that if one or more occupants of the

household consent to the search but at least one occupant denied the search, the refusal to search the home is the

one officers follow. Randolph clearly stated that the objection from one of the parties to give consent must be at

the door of the house, otherwise the objection isn’t valid. This court said in Fernandez v. California that, “the

argument that the presence of the objecting occupant is not necessary when the police are responsible for his

absence.” This made it clear that if a potential objecting occupant is not at the premises of the home to be able 21

to object the consent to search because of the police, the absence of that occupant does not matter in obtaining

legal consent from a third party in the house. In our case, Troy Baker v. The United States of America, the

defendant was in the cop car with Officer Austin while Officer Sawyer was obtaining consent to search the

house from his grandmother. During the search a 9mm handgun was found and the defendant is now appealing

to suppress this piece of evidence from the case. We are asking for the District Court’s and Appeals Court’s

denial to suppress the evidence be affirmed. In the following you will find that; a.) the officers had Objectively

Reasonable Grounds for the defendant’s removal before the search, b.) the defendant’s location in the cop car at

the time of obtaining the consent is valid to show that the search was done legally through solely his grandma,

c.) the defendant had left the premises (making him an absent party and fulfilling Social Expectations), and d.)

the search by the officers was done properly by Public Policy.

A. Baker’s removal was reasonable because he voluntarily left the property with the office.

To determine if a search was Objectively Reasonable, Fernandez has said that the court should not look at

the objective intent of the police officers. You have said in this case, “We do not believe the statement should

be read to suggest that improper motive may invalidate objectively justified removal. Hence, it does not govern

here. The Randolph dictum is best understood not to require an inquiry into the subjective intent of officers who

detain or arrest a potential objector but instead to refer to situations in which the removal of the potential

objector is not objectively reasonable.” If the search was a legal one (following proper procedures), then it

doesn’t matter what the officers were thinking at the time before the search was conducted. The officers asked

the defendant to come down to the police station with them for further questioning and he voluntarily left with

one of the officers. The defendant was in the police car, off of the property when he was objecting to the search

consent while Officer Sawyer (who was unable to hear him) was obtaining his grandmother’s consent.

Randolph makes it clear that in order for one occupant’s objection to override another occupant’s consent, that

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objecting party has to be present at the threshold of the home. Perhaps at the time in which Officer Austin heard

the defendant refusing the search, he should have informed Sawyer of the objection or let the defendant out of

the car. But the court in U.S. v. Hicks dealt with a situation where one officer was not aware of what another

said and that did not invalidate the search. They said, “ According to Brown, Armon told him there was enough

to get a warrant, but Brown himself did not have knowledge of any facts that would establish probable cause. In

addition to a suspected connection to the October 11 incident, there were two municipal warrants for Hicks's

arrest.” Sawyer being unaware of what Austin knew does not void the search because he was still at the

doorstep of the home getting consent from a third party in the absence of the defendant (to his knowledge). To

take Randolph’s statement that the objecting party must be at the doorstep of the home to make the objection

valid literally is needed in order to provide police with proper guidance in the field in which an objection is

valid. A bright line needs to be drawn in this twilight zone in order for the police to do their jobs right.

B. Baker was not at the door of the home at the time of his objection to the search, making his objection to the consent void.

The defendant not being at the door invalidates his objection even if the officer and the grandma knew about

his objection to search the home. In U.S. v. Hudspeth the court says, “Hudspeth was not at the door and

objecting and does not fall within Randolph's “fine line.” Thus, we must conclude Cpl. Nash's failure to advise

Mrs. Hudspeth of her husband's earlier objection to a search of the home computer did not convert an otherwise

reasonable search into an unreasonable one.” If the grandma knew of the defendant’s objection, it wouldn’t

have made a difference. Because of this the consent fulfilled the burden held by the government as Hicks states

in the following, “The government bears the burden of proving that any consent was freely and voluntarily

given.” We must also take into account that a minor has no legal voice and the guardian has the power to

override the minor’s veto. Even if the officers knowingly did not ask for the defendant’s consent to search the

home, case law shows that it doesn’t matter if an occupant is anywhere near and their consent isn’t asked for.

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The court in Hudspeth references Matlock by saying, “Graff's consent was valid despite the fact the arresting

officers knew Matlock was sitting in the squad car a short distance away and the officers did not ask Matlock

for his consent.” Due to the totality of the circumstances the defendant’s location in the cop car at the time of

obtaining the consent is valid to show that the search was done legally through solely his grandma.

C. Social Expectations say that once the objecting party has left the premises, officers are allowed

to go in and get consent for the search of a home.

The defendant had left the premises, making him an absent party and fulfilling Social Expectations. The

officers knew that the defendant would not have wanted them to search the home and decided to ask for the

consent to search the home when he could no longer object to the search. This being acceptable by what the

court in U.S. v. Henderson quoting Illinois v. Rodriguez saying, “‘[T]he consent of one who possesses common

authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority

is shared.’ The rationale of Matlock was later extended to home searches conducted with the consent of co-

occupant whom the police reasonably, but mistakenly, believe to possess shared authority over the premises,”

Once an objecting party is gone, their absence opens for the consent to be directly open to any third party

occupant in the household. Henderson affirms this by saying, “The calculus shifts, however,when the tenant

seeking to deny entry is no longer present.His objection loses its force because he is not there to enforce it, or

perhaps (if we understand the Court's rationale correctly) because the affront to his authority to assert or waive

his privacy interest is no longer an issue. As between two present but disagreeing residents with authority, the

tie goes to the objector; police may not search based on the consent of one in the face of “a physically present

inhabitant's express refusal of consent” to search.” This court also said that, “Absent exigent circumstances, a

warrantless search of a home based on a co tenant's consent is unreasonable in the face of a present tenant's

express objection. Once the tenant leaves, however, social expectations shift, and the tenant assumes the risk

that a cotenant may allow the police to enter even knowing that the tenant would object or continue to object if 24

present. Both presence and objection by the tenant are required to render a consent search unreasonable as to

him.” This quote sums up all of the requirements met by the officers in this search. The defendant assumed the

risk living with his grandma that she could allow the police to enter/search, regardless of whether she knew his

opinion on that or not, and his presence in the objection was needed to render the search unreasonable. In

Fernandez when the defendant answers the door, he lets the police know that he doesn’t want them searching

his house because he knows his rights. This court found that despite the defendant’s refusal to enter the

apartment while he was there, when he wasn’t on the premises it was okay for his wife to give consent for the

search. Once the objecting threat is out of the area, the police are able to receive consent from another occupant.

As soon as the defendant was out of the threshold to the house, the defendant’s valid objection was thrown out

the window and permitted Officer Sawyer to get consent as Social Expectations dictate in the absence of an

objecting party.

D. We must allow officers to perform to the best of their ability in obtaining consent for a

warrantless search in order to abide by Public Policy.

By allowing the search in this case to be accepted, the job of police officers to perform to the best of their

ability would be facilitated. The consent-only based search was created in other to get evidence that would be

harder to get by depending on a warrant. The officers acted knowledgeably and the fact is that the defendant

was not at the doorstep or very near it at the time the consent was asked for to search the home. Henderson

states, “ The Randolph Court conceded that to maintain Matlock and Rodriguez, it was required to ‘draw[ ] a

fine line’ between a defendant who is both present and objecting and one who is either not present (though

nearby) or present but not objecting.” This supports taking Randolph’s statements, for the objecting occupant to

be at the door of the house, to be taken literally. If we don’t then the police have nothing to base their consent

search off of, causing a major confusion in the gray area between the intervals in which an objection would be

deemed valid. The protection of the Fourth Amendment would still be upheld if the use of this evidence is 25

affirmed because the officers were knowledgeable and abided by the rules. The search by the officers was done

properly by Public Policy.

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CONCLUSION

Issue I

In this case, Baker v. United States of America, the defendant made atrocious statements directly linking to

the harm of the victim Carlos Campbell. We were able to prove the defendant’s intent to harm (cause fear in)

another (Subjective) and that a reasonable person would to be threatened by the statements made (Objective) by

looking at the context, conditional statement, reaction of the audience, history of violence, and the

direct/indirect communication. No matter whether the Subjective Test is applied or isn’t (the most reasonable

choice), you should find that Baker has committed a true threat.

Issue II

In this case, Baker v. United States of America, the warrantless search based on consent was done properly

and rightful under the Fourth Amendment in obtaining the 9mm handgun. We were able to prove that a.) the

officers had Objectively Reasonable Grounds for the defendant’s removal before the search, b.) the defendant’s

location in the cop car at the time of obtaining the consent is valid to show that the search was done legally

through solely his grandma, c.) the defendant had left the premises (making him an absent party and fulfilling

Social Expectations), and d.) the search by the officers was done properly by Public Policy. Based off of these

points we ask that you affirm the lower courts’ denial to suppress the evidence.

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